Nos. 85-2054, 85-5420.United States Court of Appeals, Eleventh Circuit.
February 20, 1986.
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Terrence J. Anderson, Coral Gables, Fla., Robert Catz, Cleveland, Ohio, for plaintiffs-appellants.
John Doar, New York City, G. Stewart Webb, Baltimore, Md., for defendants-appellees.
Daniel Simons, Ft. Lauderdale, Fla., prose.
Jeffrey Miller, Ft. Lauderdale, Fla., prose.
Richard K. Willard, Asst. Atty. Gen., Dept. of Justice, Civ. Div. Brook Hedge, Washington, D.C., Stanley Marcus, U.S. Atty., Miami, Fla., for U.S.
Appeal from the United States District Court for the Southern District of Florida.
Before CAMPBELL[*] , Chief Judge, KEARSE[**] , Circuit Judge, and PELL[***] , Senior Circuit Judge.
LEVIN H. CAMPBELL, Chief Judge:
[1] This opinion concerns the latest of the cases stemming from the Eleventh Circuit’s investigation of Judge Alcee Hastings, a judge of the United States District Court for the Southern District of Florida. Judge Hastings and, in the instant case, present and former members of his staff have strongly challenged the legal and constitutional propriety of the investigation itself, of the Act of Congress which authorizes and directs judicial councils to conduct such investigations, and of many of the procedures involved. [2] The current opinion disposes of two separate proceedings which were consolidated and heard together before us on June 17, 1985.[1] [3] The first of these consisted of original subpoena enforcement proceedings commenced in this court by the Investigating Committee of the Judicial Council of the Eleventh Circuit (the “Investigating Committee” or “Committee”) under the asserted authority of the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, 28 U.S.C. § 332(d)(1), 372(c)(9)(A) (“the Act”). In these proceedings, the Committee seeks orders enforcing subpoenas that the Committee caused to be issued under seal of the United States Court of Appeals for the Eleventh Circuit to Betty Ann Williams, Alan Ehrlich, Daniel Simons, and Jeffrey Miller. Ms. Williams is the secretary, and the three others are law clerks or former law clerks, of Judge Hastings. [4] The second matter is an appeal by Ms. Williams, Mr. Ehrlich and Judge Hastings from a judgment of the United States District Court for the Southern District of Florida (Wilkens, J., sitting by designation) dismissing, for lack of subject matter jurisdiction, their action seeking injunctive, declaratory and other relief against the above-mentioned subpoenas to Williams and Ehrlich, 610 F. Supp. 169 (D.Fla. 1985). [5] Both of the above matters raise similar issues, to wit: 1) whether the Act confers original jurisdiction upon the United States courts of appeals to enforce or quash subpoenas issued under the Act, and 2) whether the subpoenas in question are valid andPage 1492
enforceable despite appellants’[2] claims of privilege and of various constitutional and technical defects. We answer both questions in the affirmative, enforcing the Committee’s subpoenas to Williams and Ehrlich, directing Simons and Miller to testify before the Committee in response to the matters as to which they have refused, and affirming the dismissal of the district court action.
[6] I. PROCEEDINGS TO DATEPage 1493
on May 20, 1985, and bring with her the indicated documents.[4] She did not, however, appear on that date but instead filed in this court a document which she styled as a Notice of Objection to Subpoena and Subpoena Duces Tecum and of Intent to Seek Protective Order and Other Relief. In this she claimed a privilege purportedly protecting against disclosure of in-chambers communications among a judge and his staff. Following the Committee’s filing of a motion for contempt, we issued an order requiring Williams to show cause why she should not be adjudged in contempt, but subsequently withdrew that order. The Committee then filed in this court what it called a Motion for an Order Enforcing the Subpoena and Directing Betty Ann Williams to Testify as to All Pertinent Matters.
[12] The subpoena to Ehrlich commanded him to appear to testify before the Committee on May 27, 1985. Before that date, Ehrlich filed in this court a so-called Notice of Objection to Subpoena and Subpoena Duces Tecum and of Pending Case Challenging Subpoena and Seeking Injunctive and Other Relief, and a Motion to Quash or Recall Subpoena and Supplemental Notice of Objections. In his filings Ehrlich asserted a privilege similar to that claimed by Williams. Ehrlich did not appear on May 27. The Committee then filed in this court what it entitled a Motion for an Order Directing Alan Ehrlich to Testify as to All Pertinent Matters. [13] The subpoenas to both Simons and Miller commanded them to appear to testify before the Committee on May 27, 1985. Before that date, Simons filed in this court a Notice of Objection to Subpoena and Request for Judicial Clarification and Motion to Quash Subpoena. This filing relied on a claim of privilege similar to that raised by Williams and Ehrlich. Miller filed no papers in response to the subpoena. Both Simons and Miller appeared and testified before the Committee on May 28, but both refused to testify, on grounds of privilege, about communications among Judge Hastings and his staff. The Committee then filed in this court motions for orders directing Simons and Miller to testify as to all pertinent matters. [14] B. The District Court Action[16] In the alternative, the district court also evaluated the merits of appellants’ claims and held the subpoenas to be valid and enforceable. Judge Hastings, Williams and Ehrlich now appeal from the district court’s dismissal of their complaint. [17] II. THIS COURT’S JURISDICTION TO ENFORCE OR QUASH SUBPOENAS ISSUED IN THE COURSE OF AN INVESTIGATION UNDER THE ACTThe Act clearly confers authority to issue subpoenas only on the clerk of the court of appeals. Section 372(c)(9)(A) provides the Committee with full subpoena powers “as provided in Section 332(d) of this title”. Section 332(d)(1) provides: “each council is authorized to hold hearings, to take sworn testimony, and to issue subpoenas and subpoenas duces tecum. Subpoenas and subpoenas duces tecum shall be issued by the clerk of the
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court of appeals, at the direction of the chief judge of the circuit. . . .” No other court is granted this authority specifically or implicitly. The court of appeals being the issuing body, it is therefore the only appropriate authority which has jurisdiction to enforce or invalidate its subpoenas. A district court is without jurisdiction to entertain challenges to subpoenas issued pursuant to the Act without a specific reference from the court of appeals.
[20] Although the Committee’s subpoenas were indeed “issued by the clerk of the court of appeals . . . under the seal of the court,”28 U.S.C. § 332(d)(1), appellants argue that the affixing of the court seal was for purposes of authentication only and was not intended to denote use of the process of the court of appeals. They contend that the mere presence of the seal does not imply that the jurisdiction of the court of appeals can be invoked to enforce Committee subpoenas. [21] Appellants liken the present subpoenas to subpoenas issued by federal administrative agencies pursuant to any of the federal statutes that grant agencies subpoena power. See, e.g., 12 U.S.C. § 1818(n) (Federal Deposit Insurance Corp.); 15 U.S.C. § 49Each council is authorized . . . to issue subpoenas and subpoenas duces tecum. Subpoenas and subpoenas duces tecum shall be issued by the clerk of the court of appeals, at the direction of the chief judge of the circuit or his designee and under the seal of the court, and shall be served in the manner provided in rule 45(c) of the Federal Rules of Civil Procedure for subpoenas and subpoenas duces tecum issued on behalf of the United States or an officer or agency thereof.
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tribunal where enforcement is to occur. See, e.g., 12 U.S.C. § 1818(n); 15 U.S.C. § 49; 29 U.S.C. § 161(2); 47 U.S.C. § 409(g). The Act, in contrast, contains no hint of language directing enforcement in a district court. Rather, the pattern and wording of 28 U.S.C. § 332(d)(1) are such as to suggest that Congress intended a court of appeals, as the tribunal which issued the subpoena, to determine a motion to enforce or quash a subpoena issued at the instance of the circuit’s investigating committee.
[24] In reaching this conclusion, we are influenced by the fact that section 332(d)(1) is structured much like the provisions governing subpoena issuance and enforcement in civil litigation under Fed.R.Civ.P. 45 and in criminal and grand jury matters under Fed.R.Crim.P. 17. Subpoenas issued under these two rules constitute process of the issuing court, and are enforced by that same court. [25] Fed.R.Civ.P. 45(a) provides,[26] Under this provision, a civil litigant may fill in and have served a subpoena issued by the clerk of the district court under the seal of that court. Bearing the court’s seal and issued by its clerk, the subpoena is an instrument of that court’s process See In re Simon, 297 Fed. 942 (2d Cir. 1924); 9 C. Wright A. Miller, Federal Practice and Procedure § 2451, at 420 (1971) See also 28 U.S.C. § 1691. If a witness disregards the subpoena and fails to comply without filing a timely motion to quash, the witness may be found in contempt of court, with no need for any further court order. Pennwalt Corp. v. Durand-Wayland, Inc., 708 F.2d 492, 494 n. 5 (9th Cir. 1983); Ghandi v. Police Department of City of Detroit, 74 F.R.D. 115, 118 n. 4 (E.D.Mich. 1977); Shawmut, Inc. v. American Viscose Corp., 11 F.R.D. 562 (S.D.N.Y. 1951); Allen Bradley Co. v. Local Union No. 3, 29 F. Supp. 759, 761 (S.D.N.Y. 1939); 9 C. Wright A. Miller, § 2462, at 449-50; 5A Moore’s Federal Practice ¶ 45.03[6], at 45-20 to -21 (1985). The subpoena is enforceable in the court which issued it, under Fed.R.Civ.P. 45(f), which states, “Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued.” [27] Fed.R.Crim.P. 17(a) is virtually identical in all relevant respects. It provides,For Attendance of Witnesses; Form; Issuance. Every subpoena shall be issued by the clerk under the seal of the court, shall state the name of the court and the title of the action, and shall command each person to whom it is directed to attend and give testimony at a time and place therein specified. The clerk shall issue a subpoena, or a subpoena for the production of documentary evidence, signed and sealed but otherwise in blank to a party requesting it, who shall fill it in before service.
[28] Under this Rule, too,For Attendance of Witnesses; Form; Issuance. A subpoena shall be issued by the clerk under the seal of the court. It shall state the name of the court and the title, if any, of the proceeding, and shall command each person to whom it is directed to attend and give testimony at the time and place specified therein. The clerk shall issue a subpoena, signed and sealed but otherwise in blank to a party requesting it, who shall fill in the blanks before it is served. A subpoena shall be issued by a United States magistrate in a proceeding before him, but it need not be under the seal of the court.
[29] Id., 17(g). As the above-quoted text makes clear, the subpoena enforcement mechanism applicable to subpoenas issued under the seal of the court pursuant to Fed.R.Crim.P. 17(a) is essentially the same as that applied to subpoenas issued pursuant to Fed.R.Civ.P. 45(a). See United States v. Partin, 552 F.2d 621, 630 n. 9 (5th Cir.), cert. denied, 434 U.S. 903, 98 S.Ct. 298,Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued or of the court for the district in which it issued if it was issued by a United States magistrate.
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54 L.Ed.2d 189 (1977); 8 Moore’s Federal Practice ¶ 17.01[1], at 17-4; ¶ 17.10-.11 (1984). See also Nixon v. Sirica, 487 F.2d 700, 709-10 (D.C. Cir. 1973) (“A subpoena duces tecum is an order to produce documents or to show cause why they need not be produced. An order to comply does not make the subpoena more compulsory; it simply maintains its original force.”).
[30] Like subpoenas issued under the above two rules, the subpoenas issued here were directed by the Act to be “issued by the clerk . . . under the seal of the court.” And, reinforcing the parallel to Fed.R.Civ.P. 45, section 332(d)(1) goes on to provide that such subpoenas “shall be served in the manner provided in rule 45(c) of the Federal Rules of Civil Procedure for subpoenas or subpoenas duces tecum issued on behalf of the United States or an officer or agency thereof.” See also Rule 11 of the Eleventh Circuit Rules for the Conduct of Complaint Proceedings Under 28 U.S.C. § 372(c) (“Subpoenas shall be enforced as provided in Rule 45(f)” of the Federal Rules of Civil Procedure, which states, “Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued (emphasis added).”). [31] Given the similarity in choice of language, we believe that Congress was legislating in the Act against the backdrop of the similar Federal Rules of Civil Procedure and Federal Rules of Criminal Procedure provisions.[5] Under those rules, the seal of the court of appeals serves not merely to “authenticate” the subpoena in the eyes of the person served, but to carry with it the court’s authority. Once that authority is invoked by service of the subpoena, the court under whose seal the subpoena was issued must have jurisdiction to enforce its subpoena and vindicate its own process, as Fed.R.Civ.P. 45(f) and Fed.R.Crim.P. 17(g) recognize. The courts of appeals cannot be deemed powerless to protect the integrity of their process. See 28 U.S.C. § 1651(a) (the All Writs Act) (“all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions”); 18 U.S.C. § 401Page 1497
[32] By the same token, we think the jurisdiction of the courts of appeals to enforce judicial council subpoenas is exclusive. There is nothing in the Act to suggest concurrent enforcement jurisdiction in both the courts of appeals and the district courts. Nor is this court aware of any precedent for such a concurrent arrangement, or for the novel proposition that the district court may assert jurisdiction to enforce or quash subpoenas issued by another court. [33] Concurrent jurisdiction always raises the specter of forum shopping. In this context it would also raise two special problems. First, it would create a situation in which a trial court rules on the validity of conduct authorized through an appellate court. Second, jurisdiction would be not only concurrent, but simultaneous in several courts. One witness could bring his motion to quash in the court of appeals. Others could select the district court in which they resided, presumably even in another circuit, with the possibility of appeals to a number of courts of appeals. Only one formulation necessarily leads to all challenges being heard by the same court: review in the court of appeals under whose seal the subpoena was issued. Given these considerations, we are disinclined to find concurrent jurisdiction absent express congressional authorization. [34] In urging a different result, appellants point to Fed.R.Civ.P. 81(a)(3), which provides,[35] (Emphasis added.) They argue that judicial council subpoenas are issued by a federal officer or agency under federal statute and, accordingly, under this Rule should be enforced in the district courts pursuant to Fed.R.Civ.P. 45. Appellants overlook the fact that a judicial council or investigating committee is hardly a federal “agency” as commonly understood. See In re Petition to Inspect and Copy Grand Jury Materials, 735 F.2d at 1271-72. Moreover, since section 332(d)(1) specifically points toward a different locus of enforcement, one “otherwise provided by statute,” we consider Rule 81(a)(3) inapplicable. In any event, although the Federal Rules of Civil Procedure govern proceedings in the district courts, they are not jurisdictional provisions and do not prescribe which proceedings are to be brought in the district courts. See Fed.R.Civ.P. 82 (“These rules shall not be construed to extend or limit the jurisdiction of the United States district courts. . . .”). Similarly, 28 U.S.C. § 372(c)(16), which provides,These rules apply to proceedings to compel the giving of testimony or production of documents in accordance with a subpoena issued by an officer or agency of the United States under any statute of the United States except as otherwise provided by statute or by rules of the district court or by order of the court in the proceedings.
Except as expressly provided in this subsection, nothing in this subsection shall be construed to affect any other provision of this title, the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, the Federal Rules of Appellate Procedure, or the Federal Rules of Evidence,
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[36] in no way suggests that judicial council subpoenas are to be enforced in the district courts pursuant to the Federal Rules of Civil Procedure, but merely notes that the Act should not be construed, in the absence of an express provision, to affect those Rules in the contexts in which they do apply. [37] We recognize that judicial council subpoenas are issued by the clerk “at the direction of the chief judge of the circuit or his designee,” 28 U.S.C. § 332(d)(1), and that the Committee’s subpoenas at issue here were signed not only by the clerk but by the Chief Judge of the Eleventh Circuit. Appellants suggest that these facts show that these are administrative subpoenas. But the Chief Judge’s directory role in issuing a judicial council subpoena under section 332(d)(1) is little different from that of a litigant who is permitted by Fed.R.Civ.P. 45 or Fed.R.Crim.P. 17 to obtain a subpoena, issued in blank by the clerk under the seal of the district court, and, after filling it in, to have it served. In directing the issuance of the subpoena, the Chief Judge acts simply as the presiding member of the judicial council, not in a judicial capacity.[7] Like subpoenas issued under Fed.R.Civ.P. 45 and Fed.R.Crim.P. 17, the Committee’s subpoena when served has yet to be adjudicated in respect to its validity and enforceability. Yet like those other subpoenas, it too bears the seal of the court, and thus carries with it, if in a preliminary way, the mandate of the court of appeals. [38] We recognize that this holding means that courts of appeals may be involved in original factfinding proceedings which they are institutionally ill-equipped to handle. Although courts of appeals long have exercised original jurisdiction in limited contexts, e.g., in contempt proceedings for violation of decrees enforcing orders of the NLRB, see, e.g., Olson Rug Co., 291 F.2d at 659; Bethlehem Shipbuilding Corp., 120 F.2d 126, it is likely true, as appellants argue, that the district courts are better geared to determine original subpoena enforcement actions. However, we must defer to Congress’s choice, and we can see a number of factors supporting Congress’s decision to confer original jurisdiction on the courts of appeals despite the undoubted problems involved. [39] The Act’s goals of maintaining public confidence in the judiciary and promoting the effective administration of justice require that investigations into alleged judicial misconduct be concluded as expeditiously as is reasonably possible, lest a sitting Article III judge be compelled to function under a cloud of doubt and suspicion for any longer than is absolutely necessary. Congress gave effect to the need for speed by directing that each investigating committee file its report “expeditiously,” 28 U.S.C. § 372(c)(5), and by precluding judicial review of orders and determinations made in the course of investigations under the Act. 28 U.S.C. § 372(c)(10). Assigning subpoena enforcement authority to the courts of appeals, similarly, promotes expedition in that it eliminates an entire layer of potential appeals from original subpoena enforcement determinations. See also Trans-Alaska Pipeline Authorization Act, 43 U.S.C. § 1652(d) (review of district court orders relating to construction of Alaskan pipeline system “may be had only upon direct appeal to the Supreme Court of the United States”); Alyeska Pipeline Service Co. v. United States, 624 F.2d 1005, 1009, 224 Ct.Cl. 240 (1980) (the intent of 43 U.S.C. § 1652(d) “was to limit litigation that would further delay construction of the pipeline”). [40] It is a safer assumption, moreover, that the witnesses in council or investigatory proceedings will be found within the circuit than within any one district. Congress may have sought to ensure that all or mostPage 1499
disputes arising from the issuance of subpoenas in the course of an investigation would be determined in the same court in the first instance. Such an arrangement also promotes expedition by concentrating all subpoena questions in a single deciding body (which will gain increasing familiarity with the background of the matter) and by avoiding dispersion of such questions among a number of courts at both the trial and appellate levels, as might occur if the district courts had original jurisdiction. And while exercising subpoena enforcement jurisdiction under the Act will inject the courts of appeals into an unfamiliar fact-finding role, courts of appeals possess inherent authority to appoint a special master — who could, it seems, be a sitting Article III judge if this were desirable — to assist them in the fact-finding process. Ex Parte Peterson, 253 U.S. 300, 312-13, 40 S.Ct. 543, 547, 64 L.Ed. 919 (1920). See United States v. Raddatz, 447 U.S. 667, 683 n. 11, 100 S.Ct. 2406, 2416 n. 11, 65 L.Ed.2d 424 (1980); United States v. Charmer Industries, Inc., 722 F.2d 1073 (2d Cir. 1983) (district court judge appointed as special master by Second Circuit Court of Appeals); Union Electric Co. v. Environmental Protection Agency, 515 F.2d 206, 211 n. 19 (8th Cir. 1975), aff’d, 427 U.S. 246, 96 S.Ct. 2518, 49 L.Ed.2d 474 (1976); Olson Rug Co., 291 F.2d at 659.
[41] As a consequence of our holding that this court possesses exclusive original jurisdiction to enforce or quash subpoenas issued under section 332(d)(1), we affirm the district court’s dismissal of appellants’ complaint below for lack of subject matter jurisdiction, except that we affirm the district court’s dismissal of appellants’ equitable replevin claim on its merits.[8] We now proceed to exercise our original jurisdiction to determine the Committee’s motions to enforce the subpoenas directed to Williams, Ehrlich, Simons, and Miller and the motions to quash subpoenas filed by Williams, Ehrlich, and Simons.[9] [42] III. CONSTITUTIONAL OBJECTIONS TO THE COMMITTEE’S EXERCISE OF THE SUBPOENA POWERPage 1500
District of Columbia Circuit’s reasoning, it would be proper for us to address the same constitutional issues in these subpoena enforcement proceedings. In addition to these supplemental briefs, the parties have tendered to us copies of their briefs filed in the District of Columbia Circuit. The United States has also intervened and filed its own brief in support of the Act’s constitutionality.
[46] As the foregoing account suggests, we now face a plethora of constitutional and related procedural issues. Not only is the constitutionality of the Act itself attacked in all its aspects, but because appellants are merely subpoenaed witnesses and not the subject of the investigation, there is the question of their standing to launch such attacks, as well as further questions concerning whether it is still premature to address some of the constitutional issues. [47] In Section A, below, we address appellants’ standing, concluding that they do have standing to challenge the Act’s constitutionality on some grounds. [48] In Section B, we deal with the various constitutional claims, disposing of some of them in favor of the Act and declining to address certain others because premature, because not amenable to resolution in a suit brought by subpoenaed witnesses, or for other reasons. [49] A. StandingConsiderations of propriety, as well as long-established practice, demand that we refrain from passing upon the constitutionality of an act of Congress unless obliged to do so in the proper performance of our judicial function, when the question is raised by a party whose interests entitle him to raise it.
We do not think the present parties are so entitled, since a brief consideration of the relation of a witness to the proceeding in which he is called will suffice to show that he is not interested to challenge the jurisdiction of court or grand jury over the subject-matter that is under inquiry.
. . . . .
[T]he giving of testimony and the attendance upon court or grand jury in order to testify are public duties which every person within the jurisdiction of the Government is bound to perform upon being properly summoned. . . .
. . . . .
On familiar principles, [a witness] is not entitled to challenge the authority of the court or of the grand jury, provided they have a de facto existence and organization.
[A witness] is not entitled to set limits to the investigation that the grand jury may conduct.
. . . . .
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[52] Id. at 279, 281-83, 39 S.Ct. at 470-71. See also In re Fula, 672 F.2d 279, 283 (2d Cir. 1982); Federal Trade Commission v. Ernstthal, 607 F.2d 488 (D.C. Cir. 1979). [53] For similar reasons, the government urges, appellants here lack any cognizable interest in resolving the issue of the constitutionality of the Act. They may not, therefore, challenge the Committee’s subpoenas on constitutional grounds, but only on grounds — e.g., privilege or burdensomeness — closely related to their individual interests. [54] The government’s argument in this regard is bolstered by the rule in United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S.Ct. 357, 368, 94 L.Ed. 401 (1950), and its progeny, that an administrative subpoena issued for a lawfully authorized purpose, not too indefinite, and seeking relevant information cannot be challenged on grounds that the investigation is beyond the agency’s jurisdiction or is in aid of invalid agency regulations See, e.g., United States v. Empire Gas Corp., 547 F.2d 1147 (Temp.Em.Ct.App. 1976), cert. denied, 430 U.S. 915, 97 S.Ct. 1326, 51 L.Ed.2d 592 (1977); United States v. Feaster, 376 F.2d 147[A]ppellants were not entitled to raise any question about the constitutionality of the statutes under which the grand jury’s investigation was conducted.
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Commission on Organized Crime (Subpoena of Lorenzo Scaduto), 763 F.2d 1191 (11th Cir. 1985) (without discussion, subpoenaed witness before President’s Commission on Organized Crime permitted to challenge inclusion of federal judges on Commission on separation of powers grounds). Cf. United States v. Criminal Court of the City of New York, 442 F.2d 611, 615
n. 7 (2d Cir.), cert. denied, 404 U.S. 856, 92 S.Ct. 111, 30 L.Ed.2d 98 (1971); but cf. In re Archuleta, 561 F.2d 1059, 1063 (2d Cir. 1977); In re Maury Santiago, 533 F.2d 727, 730 (1st Cir. 1976).
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the above constitutional claims on the ground that Judge Hastings had not yet been exposed to injury. The court noted, however, “[A]ppellant has available his constitutional challenge to the validity of provisions of the Act in every one of the situations in which he is exposed to the threat of injury. Thus, he may interpose his constitutional arguments, e.g., as a defense to a subpoena. . . .” Hastings, 770 F.2d at 1102. Except that the present subpoena action involves primarily witnesses, not Judge Hastings himself, it is of the kind that the District of Columbia Circuit seems to have had in mind. We agree that some — though not all — of the above constitutional claims are ripe for decision in this proceeding.
[68] The claims we find ripe are those that bear directly on whether the present, still incomplete, investigation is valid — for example, those going to whether empowering a committee of judges to investigate a complaint against a colleague violates the Constitution. See, e.g., subsections (1), (2) and (3), infra.Page 1504
outside the judicial branch, but, even worse, were doing work that would erode the impartial outlook expected of them when performing their normal judicial duties.
[74] The Act, on the contrary, does not ask judges to promote some interest lying outside the immediate concerns of the judicial branch, nor does their membership on investigating committees and judicial councils make them less impartial, in the way that crime-fighting might make judges partial to the prosecution when presiding over criminal trials. Under the Act, an investigating committee is to investigate complaints (not already dismissed by the Chief Judge as frivolous or related to the merits of a ruling) against judges and magistrates who are accused of engaging[75] 28 U.S.C. § 372(c)(1). The Committee is also to investigate complaints alleging a judge’s or a magistrate’s inability to discharge the duties of office “by reason of mental or physical disability.” Id. After the investigation is complete, the judicial councilin conduct prejudicial to the effective and expeditious administration of the business of the courts.
[76] 28 U.S.C. § 372(c)(6)(B).[12] Thus, unlike the President’s Commission on Organized Crime, which recommended law enforcement legislation and also various executive measures to the President and Attorney General, the investigating judges here are concerned solely with matters affecting the management and reputation of the judiciary itself. [77] We know of no authority for the proposition that courts’ administrative and investigatory activities, limited to consideration of their own conduct and efficiency, are to be labelled as “executive” simply because nonadjudicative in character. Under Article III, the judicial power is invested in one Supreme Court “and in such inferior Courts as the Congress may from time to time ordain and establish.” Pursuant to its latter power to ordain and establish the inferior courts, Congress has enacted many laws placing administrative duties on judges and supporting personnel in the judicial branch. For example, a chief judge of a circuit court is empowered to designate judges to sit in different courts within the circuit, 28 U.S.C. § 292(b), and, in recent times, circuit councils and circuit executives have been granted a variety of powers. 28 U.S.C. § 332. Chief judges, circuit councils, court executives and clerks of court all hold, by law, specified court management responsibilities, the exercise of which are presumably believed by Congress to be “necessary and proper,” Art. I, § 8, in order to “ordain and establish” those inferior courts sharing in the “judicial power” under Article III. [78] In Chandler v. Judicial Council, 398 U.S. 74, 90 S.Ct. 1648, 26 L.Ed.2d 100 (1970), decided before the enactment of the Act, the Supreme Court, speaking through Chief Justice Burger, recognized with apparent approval that Congress had granted “some management power” to a circuit council, id. at 85, 90 S.Ct. at 1654, which it described as “an administrative body functioning in a very limited area.” Id. at 86 n. 7, 90 S.Ct. at 1654 n. 7. The Court similarly commented that the lower courts might adopt rules and reasonable procedures binding on their members, and that the “extraordinary machinery of impeachment”shall take such action as is appropriate to assure the effective and expeditious administration of the business of the courts within the circuit, including, but not limited to, any of the following actions. . ..
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was not the only recourse should a judge refuse to abide by these. Id. at 85, 90 S.Ct. at 1654. In a footnote, th Chandler Court stated,
[79] Id. at 86 n. 7, 90 S.Ct. at 1654 n. 7. The same above-quoted “all necessary” language was repeated by Congress in the present Act when defining broadly the kind of remedial action a judicial council might take after investigation of a judicial complaint. 28 U.S.C. § 372(c)(6)(B). [80] The Chandler Court, to be sure, drew back from attempting to define the permissible extent of a circuit council’s administrative powers. Thus it never ruled expressly whether Judge Chandler’s colleagues went too far in refusing to assign him further cases until he had coped with his backlog. The Supreme Court also made it plain that court management powers exercised by a judge’s colleagues could be unconstitutional if they amounted to an undue burden upon the independence of an individual judge. See subsection (2), infra. Nonetheless the Court indicated that for “a complex judicial system [to] function efficiently,” judges are entitled to some degree of “statutory framework and power whereby they might `put their own house in order.'” Id. at 85, 90 S.Ct. at 1654. [81] We read Chandler as rejecting any fixed notion, such as appellants now propound, that courts are mere collections of individual judges, each of whom is a complete law unto himself or herself. Two of the justices who participated in Chandler,We see no constitutional obstacle preventing Congress from vesting in the Circuit Judicial Councils, as administrative bodies, authority to make `all necessary orders for the effective and expeditious administration of the business of the courts within [each] circuit.’
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permanent agency in the executive (or legislative) branch.[13]
[84] (2) Appellants’ claim that the investigatory scheme established by the Act unconstitutionally intrudes upon the independence of a sitting Article III judge.[88] 398 U.S. at 85, 90 S.Ct. at 1654. While Justice Douglas used the word “sovereign” to describe each federal judge, id. at 136, 90 S.Ct. at 1680 et seq., the majority asked,But if one judge in any system refuses to abide by such reasonable procedures it can hardly be that the extraordinary machinery of impeachment is the only recourse.
[C]an each judge be an absolute monarch and yet have a complex judicial system function efficiently?[89] Id. at 85, 90 S.Ct. at 1654. [90] The key to the disagreement between the Chandler dissenters and the majority may well lie in the fact that whereas the dissenters saw the realm of judicial independence to be all-encompassing, the majority located
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a judge’s protected independence, more narrowly, “in deciding cases or in any phase of the decisional function.” The Court continued,
[91] Id. at 84, 90 S.Ct. at 1653. [92] We thus must reject the argument that the Act is unconstitutional because any measures which may place pressures on a judge constitute a form of removal from office by means other than by impeachment. While Chandler did not decide how far a judge’s colleagues might be authorized to go in the pursuit of reasonable administrative and institutional goals, it did indicate that Congress had some leeway in this area. [93] Our above conclusion does not, of course, decide this case, although it does suggest the correct direction of our inquiry. The Chandler majority expressed utmost concern that each Article III judge receive the independence which the Constitution grants, especially, as we have noted, “in deciding cases or in any phase of the decisional function.” We must, therefore, inquire whether such direct or indirect effects as the Act may have on an individual judge’s independence are within proper tolerances. [94] We add that, for purposes of this subpoena enforcement proceeding, our inquiry need not be exhaustive, nor should we attempt to pass judgment upon every discrete issue of constitutionality to which the Act might give rise. It suffices to inquire whether the Act, facially and in broad design, is constitutional in respect to authorizing the current investigation, so that the subpoenas may be enforced with confidence that the Committee’s investigatory proceedings are legitimate. We believe the current proceedings pass this kind of muster. In particular, we think the complaint procedure of which this investigation is a part is, in broad outline, reasonable and not overly threatening to judicial independence. [95] First, we believe that Congress could reasonably have determined that some internal procedure for investigating complaints against members of the judiciary was not only in the public interest but was important to the continued independence of the judiciary as a whole. Judges have very substantial powers and are supported at public expense. Today, some kind of complaint procedure exists with respect to state judges in every state in the union. The judiciary as a whole, including the colleagues of complained-against judges, has an interest in seeing that non-frivolous complaints are looked into, to the end that the judge, and the system he exemplifies, be exonerated or, if not, that the public perceive that the system has undertaken to police itself, within constitutional limits, of course. Absent any form of judicial complaint procedure, courts would be virtually alone among public and professional occupations in lacking a means to clean house. The increase in the number of judges coupled with the increase in the complexity of judicial work and of courts, all suggest that some mechanism for looking into complaints is necessary and reasonable, if only to enable the courts themselves to sort out their own shortcomings and make the necessary administrative adjustments.[15] In fact, a credible internal complaint procedure can be viewed as essential to maintaining the institutional independence of the courts. If judges cannot or will not keep their own house in order, pressures from the public and legislature might result in withdrawal of needed financial support or in the creation of investigatory mechanisms outside the judicial branch which, to a greater degree than the Act, would threaten judicial independence. Considerations of this sort were at the heart of the present legislation. For example, it was stated in Congress during debate on the Act that “strengthening the disciplinary[I]t is quite another matter to say that each judge in a complex system shall be the absolute ruler of his manner of conducting judicial business.
Page 1508
powers of the circuit councils . . . will . . . minimize the constitutional problems involved in this sensitive area, while providing the least intrusion into the independence of the federal judiciary.” 126 Cong. Rec. H8787 (1980) (statement of Rep. McClory). See also id. (statement of Rep. Rodino); id.
at S13858-S13860 (statement of Sen. DeConcini).
Page 1509
some institutional or administrative error, or some good faith mistake. Such an outcome, although less dramatic, might nonetheless be of significant future value to the court. The investigation might, in other words, lead to no sanction as such,[18] but nonetheless, by uncovering the truth, lift whatever cloud was being placed upon the judge or show the judge, or the court as an institution, how to avoid future difficulties of a similar type.[19]
[102] None of the above outcomes, except conceivably the reprimand by public announcement, is likely to have any major impact upon judicial independence; at least they implicate no problems greater than is posed by collective judicial administration generally. Thus even assuming a group of judges were willing to misuse the complaint procedure to punish a fellow judge for views reflected in his decision-making, the above “sanctions” would be impotent to do more than such judges could do on their own by snubbing the “maverick” or publicly or privately criticizing him. Procedures under the Act are, moreover, confidential, thus normally reducing any stigma attached. 28 U.S.C. § 372(c)(14). To be sure, final written orders implementing sanctions must be made public, and must be accompanied by written reasons “unless contrary to the interests of justice.” 28 U.S.C. § 372(c)(15). And the personal pressures (and sometimes the expense) of an investigation upon the complained-against judge may be great. Against this, however, must be balanced the institutional values, important to the independence of the judiciary as a whole, in having a credible process for the airing of complaints. Indeed, individual judges may also welcome a means of exoneration from malicious or otherwise unfair complaints. [103] We conclude that a judicial council’s conferred power to take the above-discussed actions within the ambit of its responsibility for judicial governance, like its exercise of administrative and investigatory functions generally, does not transgress the Constitution’s vision of the independence of each Article III judge. Nor do such narrow administrative measures intrude upon Congress’s sole power of removal by impeachment. The judiciary could hardly function effectively if judicial councils were powerless to exercise powers of moral suasion or censure, where a judge is felt to be bringing discredit on the court through disability, infirmity, incompetence or misconduct. By the same token, the judiciary’s power to govern itself would have little meaning if a judicial council were wholly powerless to take even such limited action as to attempt to persuade recalcitrant judges to adhere to its administrative strictures. We are satisfied, therefore, that a judicial council may exercise at least these limited remedial powers granted under the Act without unconstitutionally intruding upon a judge’s independence. [104] The Act also expressly allows a judicial council, upon determining that a judge has engaged in conduct constituting one or more grounds for impeachment, to certify this determination to the Judicial Conference for eventual presentation to the House of Representatives. 28 U.S.C. § 372(c)(7)(B). In subsection (3) infra, we uphold the constitutionality of this authority, and find that it does not “chill” a judge’s independence any more than does existence of the impeachment power itself. Like the other sanctions we have discussed, this power, also, does not, in our view, impinge upon the protected independence of judges.Page 1510
[105] The one remaining express sanction we have yet to consider is that which allows a judicial council to forbid further assignment of cases to a judge on a temporary basis for a time certain. 28 U.S.C. § 372(c)(6)(B)(iv). This raises much the same issue that the Chandler Court faced but did not decide. 398 U.S. 74, 90 S.Ct. 1648. Even more obviously than the sanction of reprimand by public announcement, 28 U.S.C. § 372(c)(6)(B)(vi), this sanction presents a difficult constitutional issue. [106] Since, however, we have determined that a judicial council may constitutionally conduct an investigation, and that such an investigation may lead to any one of a number of legitimate outcomes, we need not adjudicate the difficult questions of the constitutional validity of the above two disciplinary sanctions. Unlike the milder remedies already approved — which we have had no difficulty upholding as facially constitutional even prior to their invocation — these two sanctions are not easily assessed outside a concrete factual setting. To determine their constitutionality while imposition is entirely speculative would be to proceed in a vacuum: we do not know how either sanction, if actually employed, might be tailored, and what its justification might be. A proper adjudication of the legitimacy of these two sanctions must await their actual imposition. See California Bankers Association v. Shultz, 416 U.S. 21, 56-57, 94 S.Ct. 1494, 1515-16, 39 L.Ed.2d 812 (1974); Zemel v. Rusk, 381 U.S. 1, 19-20, 85 S.Ct. 1271, 1282-83, 14 L.Ed.2d 179 (1965); Public Affairs Associates, Inc. v. Rickover, 369 U.S. 111, 113-14, 82 S.Ct. 580, 582-83, 7 L.Ed.2d 604 (1962). [107] We conclude that at least many of the authorized and likely results of an investigation under the Act do not intrude impermissibly upon judicial independence. Nor do we think that the burden of the investigation itself upon the judge under inquiry is so great that Congress could not constitutionally authorize an investigating committee and judicial council to conduct one. We think it extremely remote that the complaint procedure would or could be misdirected so as to affect in some way a judge’s decision-making in particular cases. And except for the two sanctions whose constitutionality we have not addressed, the available sanctions are either too mild to threaten seriously a judge’s decisional independence or, in the case of impeachment see subsection (3), infra, remain essentially outside the judiciary’s control. Accordingly, we uphold the constitutionality of the basic investigatory process insofar as it is claimed to impinge improperly upon a judge’s independence. [108] (3) Appellants’ claim that the authority given to the judicial branch to certify that grounds for impeachment may exist is inconsistent with the sole power of the House of Representatives to initiate impeachment proceedings.Page 1511
judge, can investigate a judge with an eye towards impeachment. We reject this contention because the Constitution’s impeachment provisions do not require that the House itself perform all preliminary investigatory functions that ultimately may inform its decision whether or not to impeach. Those provisions, therefore, do not detract from Congress’s power to grant judicial councils authority to undertake an investigation of an Article III judge with, among other things, an eye to determining whether or not potential grounds for impeachment may exist which should be called to the attention of the House of Representatives.
[110] Appellants point out that the House has the sole power to impeach. See note 14, supra. Consequently, appellants contend, any investigation directed at aiding the House in making its decision whether or not to initiate impeachment proceedings cannot proceed outside the legislative branch. However, we are aware of no authority — nor have appellants directed us to any — that would suggest that the House’s sole power to impeach necessarily entails the sole power to investigate. It seems clear that, even apart from the Act, any person — including an individual judge, a judicial council, or the Judicial Conference — may call the House’s attention to what he believes to be a potentially impeachable offense and forward to the House any relevant evidence that he has obtained. The House is free to act upon this information or ignore it, as it chooses. Nothing in the Act effects any change in the impeachment procedures or standards to be followed in the House. Accordingly, formally authorizing the judiciary to assume some initial fact-gathering responsibility with respect to complaints that may lead to impeachment does not intrude upon the House’s sole power of decision whether or not to impeach. [111] We have already concluded in subsections (1) and (2) above that there is no constitutional flaw in Congress’s grant to judicial councils of administrative powers to provide for the “effective and expeditious administration of the business of the courts,”Chandler, 398 U.S. at 86 n. 7, 90 S.Ct. at 1654 n. 7; that these powers may properly encompass a power to look into allegations of judicial disability or misconduct and to take such remedial administrative measures as are properly available to a council; and that the mere existence and operation of such an investigatory mechanism does not intrude impressibly upon the independence of each individual judge. This being so, we can see no reason why the same administrative powers that Congress may grant to judicial councils may not encompass the power to pass along to Congress, at the conclusion of an investigation, whatever information the judicial council has uncovered, once the council finds that a judge’s conduct might constitute one or more grounds for impeachment. [112] We recognize that the prospect of ultimate impeachment is far more serious than the possibility of imposition of some of the relatively minor sanctions authorized by the Act, such as private censure. Arguably a judicial council’s investigation threatens a more troublesome chill of judicial independence insofar as it is directed in part at determining whether to recommend consideration of impeachment. But whatever chilling effect may result from the threat of impeachment is a more or less inevitable concomitant of Congress’s power to impeach. Where a complaint made against him involves matters of such seriousness, an accused judge — as was true even before the existence of the Act — will almost certainly be aware that impeachment is a possibility. The provision of an orderly, less hit-or-miss method of providing Congress with information about such a possible offense is not “unfair” to the judge. That only the House can impeach does not imply that the subject of possible impeachment can count on the absence of this further mechanism to inform Congress that a problem warranting its attention may have arisen. Any “chilling” impact on a judge’s independence that could result from this impeachment aspect is no more than the necessary and unavoidable by-productPage 1512
of the existence of the impeachment remedy.
[113] We might feel otherwise if, as appellants contend, the Act purported to allow a judicial council or the Judicial Conference to issue some kind of preliminary ruling on impeachability. Such a ruling might substantially alter the political context in which impeachment recommendations are brought before the House from that intended by the Framers — making it more difficult for the House to decline to impeach in the face of an express recommendation. Under section 372(c)(8), however, the Judicial Conference transmits to the House only its determination “that consideration of impeachment may be warranted.” It does not determine that impeachment in fact is warranted, a determination properly left to the House. We conclude, therefore, that the Act’s provision for a certification as to possible impeachability does not interfere with the House’s sole power to impeach. [114] There is a further aspect of the impeachment issue upon which, however, we do not rule. The Act does not merely purport t authorize the Judicial Conference to certify to the House of Representatives that it inquire into the impeachment of a judge. By using mandatory language, the Act arguably requires that the Judicial Conference do so. See 28 U.S.C. § 372(c)(7)(B), (8). So construed, the Act might be said to violate separation of powers principles or to create related difficulties. But if so, the very danger of unconstitutionality could cause a court to read the Act’s language as less mandatory, so as to avoid such a result. See NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 507, 99 S.Ct. 1313, 1322, 59 L.Ed.2d 533 (1979). In any event, appellants, as subpoenaed witnesses, have little direct personal stake in this separation of powers matter; and the present proceedings have not yet reached a stage, and may never do so, where impeachment could become a live issue. And finally, of course, as already held, the current investigation would be constitutional even if some of the statutory options granted to a judicial council could not ultimately be sustained. [115] We conclude that the Constitution’s grant to the House of the sole power of impeachment does not impede Congress’s authority to authorize the judiciary, through its collective administrative organs, to conduct an investigation of a complaint against a sitting Article III judge. Such an investigation is proper for the purpose of determining whether grounds for impeachment mayPage 1513
[118] We add that the standard of conduct set forth in section 372(c)(1) — “conduct prejudicial to the effective and expeditious administration of the business of the courts” — certainly is clear enough to put Judge Hastings on notice that criminal misconduct, potentially impeachable offenses (such as the bribery charge against Judge Hastings), and violations of the Code of Judicial Conduct fall within its ambit. There can be no dispute, therefore, that the complaint against Judge Hastings alleges at least some conduct properly the subject of investigation under any reasonable construction of the statutory standard. We are not asked to direct appellants to respond to Committee inquiries that arguably relate only to protected conduct beyond the scope of proper investigation; rather, the record indicates that the Committee’s examination of Simons and Miller was plainly relevant to core allegations of serious misconduct, i.e., bribery. If arguendo, the complaint does allege some conduct not a proper subject of investigation under the statutory standard, this is a matter properly raised by Judge Hastings himself rather than by subpoenaed witnesses. [119] Insofar as appellants assert the somewhat different claim that the statutory standard on its face is so vague and over-broad as to chill Article III judges’ unfettered exercise of their judicial responsibilities and their first amendment rights, then, again, that is a claim properly brought by Judge Hastings himself. Only Judge Hastings, not these witnesses, has had the statutory standard applied to his conduct and therefore has suffered the alleged concrete harm necessary to challenge an alleged “chilling effect” on first amendment rights. See United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375, 1378-79 (D.C. Cir. 1984) (party lacks standing to challenge a “chilling effect” on speech without some showing of concrete harm, past or imminently threatened).[22] [120] (5) Appellants’ claim that the Act violates the due process rights of judges under investigation.Page 1514
judicial council.[23] The former contention relates to the manner in which the Committee conducts its hearings vis-a-vis the judge himself, rather than the validity of the Committee’s subpoena power or of the Committee’s proceedings. Consequently, we need not consider this claim, nor does our original jurisdiction extend to it. If Judge Hastings’ procedural rights are being denied, that does not impair the enforceability of the Committee’s subpoenas; Judge Hastings himself must seek relief in the appropriate forum. We add that the provisions of section 372(c)(11)(B) of the Act — providing that the judge under investigation shall be afforded the opportunity to appear before the Committee, present evidence, compel the attendance of witnesses and the production of documents, cross-examine witnesses, and present argument — appear to undercut appellants’ substantive argument.
[122] Appellants’ other claim of infringement of Judge Hastings’ due process rights — an impermissible combination of investigatory and adjudicatory functions, which would make the Committee itself illegitimate from its inception — fares no better. We need not consider appellants’ concern that the same body both “prosecutes” the accused judge and imposes sanctions after an “adjudicatory” determination, since, as we have pointed out, we need not yet reach the validity of a judicial council’s imposition of particular disciplinary sanctions under the Act. See subsection (2), supra. To the extent a judicial council under the Act engages merely in fact-gathering, administrative adjustments, moral suasion, and certifying the possible existence of grounds for impeachment, it does not “adjudicate” the accused judge’s rights and liabilities. Appellants’ due process contention can be raised most meaningfully if and when the judicial council decides to impose a disciplinary sanction against Judge Hastings. [123] (6) Other issues.Page 1515
before certain state investigatory bodies. See United States v. Mandujano, 425 U.S. 564, 581, 96 S.Ct. 1768, 1778, 48 L.Ed.2d 212 (1976); Anonymous v. Baker, 360 U.S. 287, 79 S.Ct. 1157, 3 L.Ed.2d 1234 (1959); In re Groban, 352 U.S. 330, 77 S.Ct. 510, 1 L.Ed.2d 376 (1957); In re Lowry, 713 F.2d 616 (11th Cir. 1983); United States v. Daniels, 461 F.2d 1076 (5th Cir. 1972).
[126] Finally, appellants contend that the Committee’s proceedings are illegitimate, and its subpoenas invalid and unenforceable, because the Committee’s members were selected in violation of the Appointments Clause of the Constitution, Art. II, § 2, cl. 2. Since appellants challenge the legitimacy of the Committee itself, it is possible that they have standing to raise this claim despite Blair, 250 U.S. 273, 39 S.Ct. 468, and that we must determine it prior to subpoena enforcement. But cf. Buckley v. Valeo, 424 U.S. 1, 142, 96 S.Ct. 612, 693, 46 L.Ed.2d 659Page 1516
hundred miles from, the Southern District of Florida, where they reside and were served; and 3) Williams cannot be compelled to produce the appointment diaries, guest sign-in sheets, and telephone logs described in the subpoena duces tecum served upon her because those documents are in the possession and under the control of Judge Hastings alone. We find no merit in these contentions.
[130] A. Use of FBI Agents to Serve SubpoenasPage 1517
29 U.S.C. § 161 (National Labor Relations Board). Since Williams, Ehrlich, Simons, and Miller all reside within the Eleventh Circuit, the Committee plainly did not exceed the geographical scope of its subpoena power when it subpoenaed them. We need not decide whether such a subpoena may be served beyond the circuit.
[135] Given the Committee’s circuit-wide subpoena power, there can be no obstacle to conducting subpoena enforcement proceedings at a location within the circuit that happens to be outside and more than one hundred miles from the Southern District of Florida. By way of analogy, this amount of travel and attendant expense is often required to prosecute or defend an appeal, or to bring a petition for review of federal administrative agency action, in the court of appeals. Indeed, certain statutes even require that any challenge to particular federal administrative actions be brought only in courts sitting in the District of Columbia. See 2 U.S.C. § 437g(a)(8)(A); 47 U.S.C. § 402(b). [136] C. Whether Williams, Secretary to Judge Hastings, May Be Compelled to Produce Appointment Diaries, Guest Sign-in Sheets, and Telephone LogsPage 1518
Ehrlich, Simons, and Miller because they have invoked a testimonial privilege — claimed by Judge Hastings and honored by his staff — that purportedly protects against disclosure of confidential communications among an Article III judge and members of his staff regarding the performance of his judicial duties. Appellants liken this privilege to the executive privilege surrounding Presidential communications, the protection expressly accorded Congressional activities by the Speech or Debate Clause of the Constitution, Art. I, § 6, clause 1, and common-law privileges such as that protecting the confidentiality of communications between attorney and client. Enforcement of these subpoenas, it is urged, would require that Williams, Ehrlich, Simons, and Miller reveal confidences entrusted to them by Judge Hastings and would thereby threaten the independence and the effective functioning of the judiciary by chilling and obstructing the full and frank exchange of ideas within chambers necessary to a judge’s performance of his official duties.
[140] But with regard to Williams and Ehrlich, the claim of testimonial privilege is not yet ripe for decision. Williams was subpoenaed to testify on May 20, 1985, Ehrlich on May 27, 1985. Both witnesses failed to appear, asserting privilege. It is well settled that a witness whose testimony is subpoenaed cannot simply refuse to appear altogether on grounds of privilege, but rather must appear, testify, and invoke the privilege in response to particular questions. In re Grand Jury Subpoenas Duces Tecum, 695 F.2d 363, 366 (9th Cir. 1982); In re Walsh, 623 F.2d 489, 493 (7th Cir.), cert. denied, 449 U.S. 994, 101 S.Ct. 531, 66 L.Ed.2d 291 (1980); In re Possible Violations of 18 U.S.C. § 371, 641, 1503, 564 F.2d 567, 571 (D.C. Cir. 1977). See also Branzburg v. Hayes, 408 U.S. 665, 709, 92 S.Ct. 2646, 2670, 33 L.Ed.2d 626 (1972); In re Grand Jury Proceedings, 694 F.2d 1256, 1258 (11th Cir. 1982); United States v. Hankins, 565 F.2d 1344, 1349-50 (5th Cir. 1978), cert. denied, 440 U.S. 909, 99 S.Ct. 1218, 59 L.Ed.2d 457 (1979); United States v. Roundtree, 420 F.2d 845, 852 (5th Cir. 1969). Otherwise, a court would be forced to attempt to determine the existence, application, and scope of an asserted privilege in ignorance of the context in which it is alleged to apply. No possible testimonial privilege here would be of such a kind as could excuse Williams and Ehrlich from the fundamental obligation of appearing before the Committee for testimony, and then invoking the privilege before the Committee. Thus, we will not adjudicate Williams’ and Ehrlich’s claims of testimonial privilege as they are currently framed. [141] Besides commanding Williams to testify, her subpoena commanded her to produce certain documents. We will consider Williams’ claim of privilege in respect to these. We will also consider Simons’ and Miller’s claims of testimonial privilege because both have appeared before the Committee and invoked a privilege in response to specific questions.[27] [142] Although we have found no case in which a judicial privilege protecting the confidentiality of judicial communications has been applied, the probable existence of such a privilege has often been noted. In Nixon v. Sirica, 487 F.2d 700, 717Page 1519
support the recognition of a judicial privilege, noting, “Express authorities sustaining this position are minimal, undoubtedly because its existence and validity has been so universally recognized. Its source is rooted in history and gains added force from the constitutional separation of powers of the three departments of government.” Id. at 740 (MacKinnon, J., dissenting). In a concurring opinion in Soucie v. David, 448 F.2d 1067, 1080 (D.C. Cir. 1971), Judge Wilkey, discussing Freedom of Information Act exemptions from disclosure of certain executive branch information, stated, “[I]t must be understood that the privilege against disclosure of the decision-making process is a tripartite privilege, because precisely the same privilege in conducting certain aspects of public business exists for the legislative and judicial branches as well as for the executive. It arises from two sources, one common law and the other constitutional.” See also Statement of the Judges, 14 F.R.D. 335 (N.D.Cal. 1953); Comment, The Law Clerk’s Duty of Confidentiality, 129 U.Pa.L.Rev. 1230 (1981).
[143] Express Supreme Court acknowledgment of such a privilege is sparse; however, Chief Justice Burger has noted the Court’s inherent power to protect the confidentiality of its internal operations:[144] New York Times v. United States, 403 U.S. 713, 752 n. 3, 91 S.Ct. 2140, 2160 n. 3, 29 L.Ed.2d 822 (1971) (Burger, C.J., dissenting). [145] The Supreme Court’s reasons for finding a qualified privilege protecting confidential Presidential communications in United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039With respect to the question of inherent power of the Executive to classify papers, records, and documents as secret, or otherwise unavailable for public exposure, and to secure aid of the courts for enforcement, there may be an analogy with respect to this Court. No statute gives this Court express power to establish and enforce the utmost security measures for the secrecy of our deliberations and records. Yet I have little doubt as to the inherent power of the Court to protect the confidentiality of its internal operations by whatever judicial measures may be required.
[146] Id. at 705, 94 S.Ct. at 3106. The Court discerned the constitutional foundation for the executive privilege — notwithstanding the lack of any express provision — in the constitutional scheme of separation of powers and in the very nature of a President’s duties:[T]he importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision-making process.
[147] Id. at 705-06, 94 S.Ct. at 3106-07. [148] If so, the same must be true of the judiciary. The Court, indeed, likened “[t]he expectation of a President to the confidentiality of his conversations and correspondence” to “the claim of confidentiality of judicial deliberations.” United States v. Nixon, 418 U.S. at 708, 94 S.Ct. at 3107. Judges, like Presidents, depend upon open and candid discourse with their colleagues and staff to promote the effective discharge of their duties. The judiciary, no less than the executive, is supreme within its own area of constitutionally assigned[T]he privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of Presidential communications has similar constitutional underpinnings.
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duties. Confidentiality helps protect judges’ independent reasoning from improper outside influences. It also safeguards legitimate privacy interests of both judges and litigants.
[149] We conclude, therefore, that there exists a privilege (albeit a qualified one, infra) protecting confidential communications among judges and their staffs in the performance of their judicial duties. But we do not think that this qualified privilege suffices to justify either Williams’ noncompliance with the Committee’s subpoena duces tecum, or Simon’s and Miller’s refusals to answer the questions directed to them by the Committee. [150] A party raising a claim of judicial privilege has the burden of demonstrating that the matters under inquiry fall within the confines of the privilege. The judicial privilege is grounded in the need for confidentiality in the effective discharge of the federal judge’s duties. In the main, the privilege can extend only to communications among judges and others relating to official judicial business such as, for example, the framing and researching of opinions, orders, and rulings. Accordingly, Williams had the burden of showing that the Committee’s subpoena duces tecum called for the production of documents that would reveal communications concerning official judicial business. We conclude that she has failed to meet that burden. [151] The Committee’s subpoena duces tecum served upon Williams directs her to produce only the following documents:1. Appointment diaries, daily schedules or itineraries, calendars, travel itineraries;
2. Guest and/or client sign-in sheets;
3. Telephone message books, logs and memoranda. . . .
[152] From this description alone, we cannot determine that the above documents would come within a judicial privilege. Most such documents would not ordinarily be expected to reveal the substance of communications among Judge Hastings, his colleagues, and his staff concerning Judge Hastings’ official duties. That Judge Hastings met or spoke with a particular visitor at a particular time, without more, would not involve the substance of the communications between them.[28] Cf. In re Grand Jury Proceedings, 689 F.2d 1351, 1352 (11th Cir. 1982) (attorney-client privilege ordinarily applies only to content of communications, not to dates, places, or times of meetings). [153] Moreover, even if the subpoenaed materials were to include some substantive matters that fell within the privilege, we conclude, for reasons stated subsequently in our discussion relating to Simons and Miller, that the privilege would not support Williams’ refusal to comply. The seriousness of the Committee’s investigation, and the apparent relevance of the subpoenaed documents to that investigation, would justify enforcement of the subpoena in these circumstances regardless of the assertion of privilege, the privilege being qualified, not absolute. See infra. We accordingly reject Williams’ assertion of privilege to justify non-compliance with the Committee’s subpoena duces tecum.[29] [154] Turning next to the testimony of Simons and Miller before the Committee,Page 1521
our review of the transcripts leaves little doubt that the boundaries of the judicial privilege do encompass the subject matter of the Committee’s inquiries to them. They invoked the privilege in response to questions probing the core of the confidentiality interest at stake: communications among Judge Hastings and his staff concerning matters pending before Judge Hastings. That the privilege applies, however, does not end the matter. The judicial privilege is only qualified, not absolute; it can be overcome in an appropriate case.
[155] The Supreme Court in United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, has made clear that the executive privilege is a qualified one:[156] Id. at 706-07, 94 S.Ct. at 3106-07. The judicial privilege, arising from similar constitutional underpinnings, shares similar limitations and restrictions.[30] Like any testimonial privilege, the judicial privilege must be harmonized with the principle that “`the public . . . has a right to every man’s evidence.'” United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950). This principle is no less applicable to proceedings under the Act than to criminal proceedings. [157] Once the party asserting the privilege has met the burden of showing that theHowever, neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President’s need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera
inspection with all the protection that a district court will be obliged to provide.
The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Art. III. In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence.
While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Youngstown Sheet Tube Co. v. Sawyer,
343 U.S. [579], at 635 [72 S.Ct. 863, at 870, 96 L.Ed. 1153 (1952)] (Jackson, J., concurring).
To read the Art. II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of “a workable government” and gravely impair the role of the courts under Art. III.
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matters under inquiry implicate communications among a judge and his staff concerning performance of judicial business — as Simons and Miller have shown here — those matters are presumptively privileged and need not be disclosed unless the investigating party can demonstrate that its need for the materials is sufficiently great to overcome the privilege. To meet this burden, the investigating party can attempt to show the importance of the inquiry for which the privileged information is sought; the relevance of that information to its inquiry; and the difficulty of obtaining the desired information through alternative means. The court then must weigh the investigating party’s demonstrated need for the information against the degree of intrusion upon the confidentiality of privileged communications necessary to satisfy that need. We hold that the judicial privilege asserted by Simons and Miller on Judge Hastings’ behalf is overridden, under the circumstances present here, by the Committee’s need for Simons’ and Miller’s testimony to further its investigation.
[158] There can be no question that the Committee’s investigation is a matter of surpassing importance. While criminal remedies may no longer be in issue, a proceeding which could result in recommending the exoneration of a sitting Article III judge, or in certifying to the House of Representatives that consideration of impeachment may be warranted, obviously implicates concerns of fairness and thoroughness of a high order. And the charges being investigated — particularly the allegation of bribery — are grave.[31] As we said in our previous opinion arising out of the Hastings investigation,[159] In re Petition to Inspect and Copy Grand Jury Materials, 735 F.2d at 1269-70. [160] The Committee’s inquiries of Simons and Miller, like the grand jury records the Committee sought and obtained in its previous suit, appear closely pertinent to the Committee’s effective discharge of its responsibilities under the Act. These inquiries relate to the role played by Simons and Miller in the preparation of an order entered by Judge Hastings on October 6, 1981 i United States v. Romano, 523 F. Supp. 1209, an order that was alleged to be the result of bribery. The Committee could hardly undertake a full and complete investigation of a complaint growing out of charges that a judge’s ruling was influenced by bribery without questioning the judge’s staff about the in-chambers communications that led to the particular ruling. We can think of no adequate substitute for this line of questioning, assuming the Committee’s investigation is to be meaningful. The Committee’s particular questions to Simons and Miller adhere to this legitimate investigatory goal. [161] We recognize that the Committee already possesses records of the Hastings grand jury proceedings, apparently including transcripts of the grand jury’s examination of Simons and Miller, and that the Committee may also possess transcripts of the Hastings and Borders criminal trials, apparently including examination of Miller. But possession of these does not defeat the Committee’s authority to compel Simons and Miller to testify before it. As to matters not addressed in their prior testimony,Moreover, the question under investigation — whether an Article III judge should be recommended for impeachment by the Congress, otherwise disciplined, or granted a clean bill of health — is a matter of great societal importance. Given the character of an investigating committee and what is at stake — the public confidence in the judiciary, the independence and reputation of the accused judge — paragraph (c)(5) must in our view be read, with very few strings, as conferring authority to look into whatever is material to a determination of the truth or falsity of the charges.
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ipso facto there exists no previous testimony to diminish the Committee’s need to hear these witnesses’ testimony now; as to matters that were previously testified to, the force of any asserted privilege is mitigated somewhat — even absent any formal waiver by Judge Hastings[32] — by the fact that these witnesses already have testified previously and thereby breached confidentiality to some degree. See Nixon v. Sirica, 487 F.2d 700, 718 (D.C. Cir. 1973) (confidentiality of taped Presidential conversations “substantially diminishe[d]” by public testimony concerning the substance of those conversations).
[162] More important, regardless of how much prior testimony of Simons and Miller the Committee may possess or acquire in transcript form, the Committee is entitled to believe that live testimony is crucial to the goal of a thorough investigation. Only through the medium of such testimony can the Committee hear and judge for itself the demeanor and credibility of relevant witnesses, rather than be relegated to reliance on a cold transcript. Given the importance of the investigation, this goal of thoroughness is a weighty one. As we noted in our previous opinion in this matter,[163] In re Petition to Inspect and Copy Grand Jury Materials, 735 F.2d at 1273. See also Nixon v. Sirica, 487 F.2d at 717The Committee is charged under the Act with conducting an investigation in order to further “the effective and expeditious administration of the business of the courts. . . .” 28 U.S.C. § 372(c)(6)(B). As already noted, the Committee’s investigation is to be “as extensive as it considers necessary.” Section 372(c)(5). A thorough investigation is essential not only to ensure the integrity of federal judges, but also to instill public confidence in the judiciary. . . . The Committee must be able to represent to the Council, and the Council must be satisfied, that all available evidence of possible materiality has been sifted: for the Committee to examine matters extensively and find nothing may be as much a part of its duty as to look at evidence whose incriminating nature is known in advance. The object of the investigation is not to prove a case against the judge but to determine whether there is or is not a case.
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Court held that the need for relevant evidence in criminal proceedings overrode “the President’s assertion of a generalized privilege of confidentiality.” Id. at 712 n. 19, 94 S.Ct. at 3109 n. 19. The Court placed substantial emphasis on the general nature of the asserted interest, carefully distinguishing it from a specific “claim of need to protect military, diplomatic, or sensitive national security secrets.” Id. at 706, 94 S.Ct. at 3106; see id. at 710, 712 n. 19, 94 S.Ct. at 3108, 3109 n. 19. The Court accordingly held,
[165] Id. at 712-13, 94 S.Ct. at 3109-10. [166] In the instant case, as well, Judge Hastings’ assertion of a confidentiality interest is generalized in nature. Judge Hastings has not directed the attention of this court to any further, specific need for secrecy over and above those needs which normally apply and give rise, in the first place, to a privilege. On the other side of the balance, again, the Committee’s particular need for these witnesses’ testimony implicates concerns of great moment. [167] The procedures surrounding an investigation under the Act, too, present circumstances which mitigate the force of Judge Hastings’ confidentiality interest in avoiding testimony about assertedly privileged communications. In Nixon, the Court — as a means of protecting confidentiality to the maximum possible extent — ordered in camera examination by the district court of the subpoenaed tape recordings and documents. Id. at 706, 714-16, 94 S.Ct. at 3106, 3110-11. The principle, of course, is that disclosure of privileged information to a federal judge constitutes an extremely limited breach of confidentiality, see Nixon v. Sirica, 487 F.2d at 719-20, since federal judges can be expected as an obligation of their office to respect the confidentiality of sensitive or privileged information. See also Kerr v. United States District Court, 426 U.S. 394, 405-06, 96 S.Ct. 2119, 2125-26, 48 L.Ed.2d 725 (1976); In re Grand Jury Proceedings in Matter of Freeman, 708 F.2d 1571, 1576 (11th Cir. 1983). In the instant case, the Committee itself consists of federal judges, so disclosure of the substance of the privileged communications here threatens Judge Hastings’ confidentiality interest little more than would in camera examination. See In re Petition to Inspect and Copy Grand Jury Materials, 735 F.2d at 1274. Federal judges will be uniquely cognizant of the need to safeguard the confidentiality of in-chambers communications among an Article III judge and his staff.[33] In addition, any privileged testimony or documents received by theA President’s acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal prosecution in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated. The President’s broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminary shown to have some bearing on the pending criminal cases.
We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.
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Committee will remain confidential under the provisions of section 372(c)(14) of the Act.[34] Therefore, having weighed the competing concerns in the balance, we hold that the Committee’s need for these witnesses’ testimony outweighs Judge Hastings’ asserted interest in non-disclosure.
[168] We add that while the Committee’s questions to Simons and Miller were manifestly relevant here, we would enforce the subpoenas upon a lesser showing of relevance so long as a reasonable degree of materiality could be discerned. Where, as here, a judicial council investigation concerns allegations of unquestionable seriousness, we believe that, given the make-up of judicial councils and the secrecy surrounding their investigations under the Act, any subpoena for material protected only by an asserted generalized need for confidentiality should be enforceable so long as the information sought does not on its face seem irrelevant to the investigation. The issuance of such a subpoena means that Article III judges already have satisfied themselves of the relevance of, and need for, the information sought and the existence of probable cause for the investigation itself. See also In re Grand Jury Proceedings in Matter of Freeman, 708 F.2d 1571, 1575 (11th Cir. 1983) (grand jury subpoena is enforceable without a specific showing of relevance and need, despite witness’ claim that enforcement of the subpoena could impair the right enjoyed by the target of the investigation to counsel of his choice); In re Slaughter, 694 F.2d 1258, 1260to bring with you for the time period March 1, 1981, to April 1, 1983, the originals of all of the documents listed below, which are in your possession, custody, care and/or control of the United States District Court for the Southern District of Florida and are the official records of the Honorable Alcee L. Hastings, Judge, United States District Court for the Southern District of Florida:
1. Appointment diaries, daily schedules or itineraries, calendars, travel itineraries;
2. Guest and/or client sign-in sheets;
3. Telephone message books, logs and memoranda. . . .
The issue of the Supreme Court’s jurisdiction to hear motions to enforce or quash subpoenas in an appropriate case is not before us, so we need not decide whether the exercise of such jurisdiction would contravene the principles enunciated i Marbury. Given the ample basis for our finding that section 332(d)(1) confers original jurisdiction on courts of appeals in this limited area, we are not moved to question our finding merely because it raises the possibility of constitutional defects in a companion provision. We note that appellants’ warning, even if correct, would not wholly scuttle the subpoena provisions of section 331, since that section authorizes issuance of subpoenas by the clerk and under the seal of the Supreme Court or “any court of appeals.” (Emphasis added.)
The Constitution places the decision whether or not to impeach within the sole province of the House of Representatives, Art. I, § 2, and grants the Senate the sole power to try all impeachments. Art. I, § 3.
The Judicial Conference of the United States, summonsed and presided over by the Chief Justice of the United States, consists of the chief judges of all the circuits and of district judge representatives. 28 U.S.C. § 331. It is of some moment that for an impeachment certification to reach the House under the Act, it must be approved by a body that includes the senior representatives of every circuit court as well as representative district judges from all over the nation.
All papers, documents, and records of proceedings related to investigations conducted under this subsection shall be confidential and shall not be disclosed by any person in any proceeding unless
(A) the judicial council of the circuit, the Judicial Conference of the United States, or the Senate or the House of Representatives by resolution, releases any such material which is believed necessary to an impeachment investigation or trial of a judge under article I of the Constitution; or
(B) authorized in writing by the judge or magistrate who is the subject to the complaint and by the chief judge of the circuit, the Chief Justice, or the chairman of the standing committee established under section 331 of this title.
28 U.S.C. § 372(c)(14).
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and inasmuch as I will not be engaging in any judicial activity for an indeterminate period subsequent to December 31, 1985, I am filing this separate concurrence as of December 30, 1985.
[173] I base this concurrence on having read the briefs of the parties, having heard oral argument, and having examined a preliminary draft of the proposed opinion. I authorize Chief Judge Campbell and Judge Kearse to issue this concurrence at the time they issue their opinion for the panel. [174] Specifically, I concur as of this date in the opinion of the panel insofar as it results in findings that this court has exclusive original jurisdiction to determine motions to enforce or quash subpoenas issued under its seal pursuant to the Act; that appellants’ constitutional and technical objections to the Committee’s issuance and service of subpoenas either are beyond this court’s jurisdiction, may not properly be decided in the present proceedings, or lack merit, and that the Committee’s subpoenas directed to appellants are enforceable despite appellants’ invocation of a privilege protecting communications among Judge Hastings and his staff. [175] I therefore would hold that the judgment of the district court should be affirmed. [176] I would further hold that the motions to quash by Williams, Ehrlich, and Simons should be denied, and would order Williams and Ehrlich to comply with the Committee’s subpoenas at a time and place to be prescribed by the Committee. I would further order Simons and Miller to testify fully as to all pertinent matters at a time and place to be prescribed by the Committee. [177] I hereby join in any judgment to the above effect and expressly authorize the clerk to so indicate.[PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 20-10452 D.C.…
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