specially concurring:
The construction of the written law, whether in statutory or constitutional form, is at times admittedly an uncertain and difficult art. The drafters of our constitution and the voters who approved it, however, would be astonished and perturbed to learn that this court has made it possible for the Judicial Inquiry Board to withhold from a criminal trial exculpatory evidence, requested by an accused judge or ordered by a trial court, which could produce a reasonable doubt of guilt. This is because the plurality says the Board need only produce upon the accused judge’s request “evidence or material in the Board’s possession which on its face plainly negates defendant’s guilt.” (72 Ill. 2d at 238.) This disclosure standard of plainly negating guilt is of course completely arbitrary and without precedent in any jurisdiction. I consider it to be offensive to the Federal command of due process and fair trial and of course to the commands of our constitution as well. An additional problem arises when one attempts to determine what is meant by the described standard. The plurality states confidently: “The producible material is only that which on its face plainly negates guilt, and we do not doubt the Board’s competency to make that determination.” (72 Ill. 2d at 238.) Many will say, however, that it is a standard easily stated but difficult to interpret and to apply. Whether the Board will have experienced difficulties of interpreting and applying in cases of nondisclosure propbably will never be known, for its decision not to disclose cannot be reviewed.
The fundamental of construction is to determine intent. The plurality opinion here fastens on the word “confidential” with a literalness I am sure never was intended. I would point out that this literal interpretation also creates the following offensive anomalies so far as the policy of this court is concerned as to disciplinary proceedings against judges and against lawyers. Our Rule 766 (65 Ill. 2d R. 766) declares that the proceedings before the inquiry, hearing and review boards of the Illinois Attorney Registration and Disciplinary Commission shall be private and confidential, subject to certain specified exceptions. Court records will show, however, that the Commission, which was created by our Rule 751 (58 Ill. 2d R. 751) and which operates under this court’s direction, has responded to subpoenae duces tecum for investigative records in matters which involved complaints filed before the Commission against attorneys. The plurality focuses on the words “all proceedings of the [Judicial Inquiry] Board shall be confidential” and states that a judge who is an accused in a criminal proceeding cannot obtain exculpatory evidence unless the evidence in the Board’s possession “on its face plainly negates defendant’s guilt.” But an adversary of an attorney against whom a complaint has been filed can, by subpoena, secure evidence in the possession of the Commission despite our rules declaring that the proceedings before the Commission shall be confidential. It seems to me that this court will be vulnerable to a charge of giving one meaning to confidentiality when applied to attorneys and another meaning when applied to judges. We will not be able to evade this criticism by saying that one direction making proceedings confidential is set out in a rule of court and the other is set out in the Constitution, for that cannot be a critical distinction. The requirement of fair trial is not to be frustrated by either a rule of court or by a constitution. It should also be pointed out that Rule 766 states that, at the request of the attorney against whom the complaint has been filed, the proceedings shall be public. This court, in promulgating the rule, recognized that the confidentiality provision was for the benefit of the attorney who might be complained against and could be waived by him. The plurality concludes differently in this case involving a judge and a confidentiality provision.
In New York Times Co. v. Jascalevich (Aug. 1, 1978), 47 U.S.L.W. 3066, 3067, Justice White, sitting as circuit justice, stated that there was no constitutional privilege for newsmen to withhold subpoenaed documents material to the defense of a criminal case. The circumstances considered by Justice White, though not in precise alignment with those here, resemble them. Justice White’s denial of the stay applied for supports the position that the plurality opinion here seriously errs in limiting the right to prepare a defense.
I would also observe that the principal opinion speaks of the “encouragement and protection of witnesses” (72 Ill. 2d at 230) as a consideration in denying the production even of evidence that would exculpate an accused. Concern for the safety of witnesses is hardly a factor when the evidence is exculpating, unless we act on a devastating assumption that the People will undertake to harass and intimidate witnesses.
I suppose it is inevitable that there will be cases in which the Judicial Inquiry Board will file complaints with the Courts Commission after the trial of a judge in which exculpatory evidence under the plurality’s view was withheld from the trial court or jury and the judge was found guilty. Discovery will be available to the judge in the Courts Commission proceeding, and he may in a given case then obtain exculpating evidence which, if it had been available earlier, would almost certainly have resulted in his acquittal in the criminal proceeding. That will be an irony to ponder when and if it occurs.
Notwithstanding my disagreement with much of what the plurality opinion states, I consider that the order of the trial court was too broad that directed the Board to make available all statements that a witness gave earlier to the Board. I think that the trial court’s order should have been confined to statements that were material, relevant and usable to impeach.