concurring in part.
I join in the result reached by the majority and in Part III of its opinion. I disagree, however, that there is any need to assume a right of access as the majority does, and then to determine whether the right is overridden in this case. Rather, I believe that because there is no tradition or history of access to the documents under consideration, there is simply no right of access to them, and that the court should so hold.
For a party to establish a constitutional right of access, it must show two things: (a) a tradition of openness, and (b) important functional values that would be served by access. Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982). The relevant historical inquiry here is whether there is a tradition of openness with respect to the Judicial Inquiry and Review Board’s (the Board’s) records when it votes after a formal hearing to dismiss the charges against the judge under investigation.
Examination of the historical record demonstrates that there is no tradition of openness with respect to such records.1 Of the *480fifty-three cases decided by the Board on the merits up to June 1, 1983 the Board dismissed the charges in twelve of them.2 One of the cases is the one before us, whose history is by now well-known. In six of the remaining eleven cases, the Board did not file its records in the Supreme Court. The records therefore did not become public. In the five remaining cases, the Board did file its records, but in three of them the Board had apparently initially decided not to make the record public and changed its mind only because one of the three district justices under joint investigation was killed trying to prevent a hold-up around the time of the investigation. The Board filed the record in the Supreme Court to clear that justice’s name and memory. Thus, in only two of the twelve relevant cases did the Board decide to make public its records absent extraordinary conditions.
It is clear to me that this “tradition” is not sufficient to sustain the burden imposed by the Suprerhe Court. Any other conclusion would make a nullity of the tradition of openness requirement. Judge Adams obviously disagrees, stating that “the history of the Board up to the time of this case, though not a long one, demonstrates a tradition of openness in its proceedings ____” Concurrence and dissent at 484. In reaching this conclusion, however, Judge Adams discounts the six cases in which the Board did not recommend sanctions and the records were not disclosed. Although, as noted above, these six cases constitute one-half the relevant history, Judge Adams refers to them as mere “simply exceptions” to an “overall pattern” of openness. Id. at 482. Aside from giving new meaning to the old adage that “the exception proves the rule,” this position has little to recommend it. The pattern it purports to identify was honored more often in the breach than otherwise — it was no pattern at all.3 The six cases therefore cannot be trivialized as exceptions to a pattern that never existed, but must be given their due in an impartial examination of the whole relevant history. Such examination results in a conclusion opposite that of Judge Adams: there was no pattern or tradition of openness here — far from it.
Judge Adams also believes that the fact that impeachment proceedings have historically been open to the public is relevant to whether there is a tradition of openness to Board documents and records. Concurrence and dissent at 485. I disagree. As the majority explains, the history of impeachment proceedings would be relevant only if the Board had been intended to be, or had in fact become, a substitute for impeachment of judges. Majority Opinion at 473. However, the record is clear that Board was intended to supplement the impeachment process, not to supplant it, and that it has not become a de facto substitute for impeachment. The number *481of impeachments has not declined as a result of the availability of the Board.4 Cf. United States v. Smith (Appeal of the Patriot News Co.), 776 F.2d 1104, 1111 (3d Cir.1985) (holding that there is a right of access to bills of particulars, despite their brief history, because indictment have grown “skeletal,” and bills of particulars play the role once played by more expansive indictments). Thus, the history of impeachment cannot shape our analysis of the appropriate practices of the Board.
Although the parties have discussed at some length the practices of other states’ judicial review boards, and the majority and Judge Adams also refer to them, such practices cannot provide the historical evidence necessary to support the tradition of openness of the Pennsylvania Board. The very nature of the historical inquiry implies that states have some flexibility in deciding which of their institutions may be open and which closed to the public. States can shape their own histories and may therefore differ about whether their citizens have rights of access to otherwise identical institutions. Such differences are elemental to our system of federalism. Invoking the histories of other states’ institutions abridges the states’ flexibility; in this case, it denies Pennsylvania the opportunity to decide for itself whether its Board should be an open or a closed institution.
Our first obligation is to look at history for a tradition of openness. Having done so, I believe that there is no such tradition, and that our analysis should end there. I therefore do not reach the several issues pertaining to burdens of proof and appropriate standards of review in the majority opinion and disputed by Judge Adams.
. It is worthy of note in this regard that while the district' court (Poliak, J.) found a right of access, it did not consider whether there was a tradition of openness associated with these documents, apparently believing that so long as access would serve a legitimate purpose, there was a constitutional right to such access. First Amendment Coalition v. Judicial Inquiry and Review Board, 579 F.Supp. 192, 211 (E.D.Pa. 1984) ("A governmental restriction on public and press access to information about matters of public concern presents a First Amendment question.”).
. The Board recommended sanctions in the other forty-one cases, and therefore filed the records of those cases in the Supreme Court where they became public records. Although Judge Adams makes much of these forty-one cases, they are clearly irrelevant to the question at hand which is whether there is a tradition of openness with respect to the records of the investigations where the Board does not recommend sanctions. The Board does not dispute that (nor are we called upon to decide whether) there is a tradition of openness with respect to the records of investigations that result in the recommendation of sanctions.
. Judge Adams also implies that the release of the records of the investigation of the justice shot while attempting to stop a hold-up took place without regard to concern for his good name or memory, and that such considerations were only post hoc justifications for what was in fact a "routine” practice. Concurrence and dissent at 482 n. 2. Testimony of Richard McDevitt, the Board's Executive Director, clearly demonstrates, however, that the Board was in fact motivated by the unusual and tragic circumstances of the case, and did not view the release of the documents as routine:
[A] district justice [was] accused of charges that received considerable publicity in Erie, and the panel and Board recommended dismissal. In the interim, the district justice, in trying to prevent a hold-up ... was shot and killed, and in the interest of protecting his memory the Board decided that the recommendation of dismissal should be filed and it was filed.
App. at 162 (emphasis added).
. No Pennsylvania judge has been impeached since the early nineteenth century. Mundy, The Myth of Merit, XIV The Barrister No. 3 p. 14 (Fall 1983).