concurring in the decision:
This case requires us to balance the competing needs of two separate and distinct adjudicative processes, the • criminal justice process and the judicial disciplinary process. In its current posture, this case has been interfering with the effective operation of both processes. Therefore, for the reasons which follow, I concur in the award of the writ on the terms stated in the plurality opinion. However, my approach to this case differs in some respects from that stated in the plurality opinion.
Section 15(c) of article VI of our constitution provides in part, “All proceedings of the [Judicial Inquiry] Board shall be confidential except the filing of a complaint with the Courts Commission.” In my opinion, this provision was intended exclusively for the protection of judges under investigation. The majority report (which is not contradicted in this respect by the minority report) of the Committee on Judiciary on Recommendations in Proposal Number 2 states: “To protect judicial officers against irresponsible charges and complaints, all proceedings of the Inquiry Board are to be confidential except the filing by it of a complaint with the Courts Commission.” (6 Proceedings 867.) The committee further amplified this language later in the report:
“The requirement that proceedings antecedent to the filing of a formal complaint be confidential has already been noted. In addition, the requirement that a majority of all members of the Inquiry Board must concur in a decision to file a complaint underscores the seriousness of such an action. There is too much at stake to permit public complaints to be filed by less than a majority of the entire membership of the Inquiry Board. Even a subsequent vindication of the judge by the Courts Commission will not undo the damage of a complaint based upon inadequate investigation or insufficient evidence.” (Emphasis added.) (6 Proceedings 871.)
I find it persuasive that, in explaining the intent of the confidentiality provision, the drafters made no mention of an intent to protect witnesses and complainants. I therefore would construe the above-quoted language of section 15(c) of article VI of the Constitution as a protection of the judge under investigation, which that judge may waive.
Our inquiry does not end here, however, for the ability of the judge to waive the confidentiality of the Board’s proceedings does not imply a corresponding right to compel their disclosure. As the plurality opinion correctly points out, the confidentiality of complaints and testimony presented to the Board serves important purposes, not the least of which is the encouragement of candor through protection against retribution. A qualified privilege against the premature disclosure of the complaints and testimony before it therefore is essential to the effectuation of the Board’s constitutional mandate and may be implied therefrom.
It is extremely significant in this regard that the Constitution gives the Board the power and duty to “adopt rules governing its procedures” (Ill. Const. 1970, art. VI, sec. 15(d)). The drafters noted that “[t]he investigative procedures of the Inquiry Board are not spelled out. These are properly left to the Board’s rules.” (6 Proceedings 871.) I would be inclined to give great deference to a thoroughly considered and carefully drafted rule providing reasonable standards and procedures for the disclosure to a judge under investigation of information obtained through that investigation. I also would find significant the approach of the many other jurisdictions which have dealt with various aspects of this problem, in reviewing the reasonableness of any such rule. See generally Landmark Communications, Inc. v. Virginia (1978), 435 U.S. 829, 846-48, 56 L. Ed. 2d 1, 15-16, 98 S. Ct. 1535, 1545-46 (citations to provisions in several jurisdictions).
Since no such rule is now before us, the application of the Board’s qualified privilege to the facts of this case must be analyzed generally in terms of the purposes of the privilege and the competing needs of the criminal justice process. The Board’s need for some degree of confidentiality stems primarily from its dependence upon the trust of individuals who otherwise might fear retribution at the hands of an accused judge. Compelled disclosure of the Board’s records will, to some degree, undermine that trust. However, since the only instance when such disclosure can be compelled would be the rare case involving a judge against whom criminal proceedings had been instituted regarding the same or related misconduct, potential complainants and witnesses can be assured that it is highly unlikely that their testimony will be revealed.
In addition, a judge accused of criminal (including misdemeanor) misconduct is not entitled to indiscriminately demand to see everything in the Board’s file on him, as was done in the instant case. Thus, on the facts of this case, and in light of the complete lack of particularity with which the accused judge’s original demand was stated, I agree that the discovery permitted in this case should be limited to “evidence or material in the Board’s possession which on its face plainly negates defendant’s guilt.” (72 111. 2d at 238.) However, I am not persuaded that, in a proper case, the scope of discovery afforded a judge accused in a criminal proceeding need not be somewhat broader to effectuate fully the truth-finding and exculpatory functions of the criminal justice process. In my opinion, therefore, in a proper case, discoverable material would include any information or material in the Board’s possession which tends to negate defendant’s guilt or which would undermine substantially the credibility of a potential witness against the defendant at trial. I would expect the Board to comply fully with both the letter and spirit of this standard, and to submit any material regarding which a reasonable basis for disagreement exists (as to its discoverability) to the court for its in camera inspection.
For the foregoing reasons, I concur in the award of the writ on the terms stated in the plurality opinion.
MR. JUSTICE GOLDENHERSH took no part in the consideration or decision of this case.