A 1st Amendment claim of a judge in 1999 echoes my own claim in 2015 - and I wonder, does the law apply differently to judges? Why is it then called the law?

In 1999, the 5th Circuit has published a decision about a disciplinary proceedings against a federal judge, John Henry McBryde.

It has found against the judge on all issues but one - his 1st Amendment claim of confidentiality of such proceedings, both on its face and "as applied" to him.

Here is what the court said - again, in 1999:

"A certain irony characterizes Judge McBryde's First Amendment claim before this Court. In every other case known to this Court involving judicial disciplinary proceedings, challenges to the confidentiality provision have issued from a complainant, witness, or third party. That person's right to speak about the proceedings had to be balanced against the state's legitimate interest in protecting the judge and the judiciary as an institution. Here, however, the subject judge himself maintains that to vindicate his reputation, he must be permitted to speak openly about the very proceedings that impugned him. Such a case would seem unusual, to say the least, possibly contemplated neither by individual courts nor by any legislature. Still, upon review of Judge McBryde's claim, this Court cannot disregard or diminish a judge's interest in vindicating his reputation, and in announcing his perspective on the proceedings to all who will listen. Indeed, this interest surely deserves the most heightened First Amendment protection."

That's for a federal judge, in 1999.

In 2015, a state court in New York, on the issue of an attorney's 1st Amendment right to open up her own disciplinary proceedings to the public as of right, without permission of any courts, something which was already reviewed and decided by the New York State Court of Appeals in a binding precedent more than 20 years prior - decided in a completely different way.

"As a matter of procedure, we reject respondent's contention that this Court has engaged in "gross continuing judicial misconduct" by, inter alia, refusing to enter an order unsealing all records relating to the charges herein and opening the disciplinary proceeding to the public based on her waiver of confidentiality submitted to the Clerk of this Court.

Judiciary Law § 90 (10) empowers only the Justices of this Court, by written order and "upon good cause being shown," to permit disclosure of all or any part of confidential disciplinary records.

In this case, the Clerk of the Court advised respondent that only the Court had authority to unseal the disciplinary proceeding and, therefore, a motion to the Court was required to unseal disciplinary records or open the proceedings to the public. Respondent, however, never made the necessary application to the Court to obtain that relief."

Judiciary Law 90(10) is protecting the attorney's privacy and nobody else's, as the New York State Court of Appeals recognized long time before 2015, in fact, in 1983, 32 years before 2015:

"With respect to appellant's claim that he was entitled to have the hearings in this instance opened to the public, we agree, but find it unnecessary to reach his constitutional contentions.

The statute on which the Appellate Division and respondent rely for closure of the hearings in the face of appellant's express waiver, subdivision 10 of section 90 of the Judiciary Law, literally read, does not address the question whether attorney disciplinary hearings shall be closed or open to the public.

It provides in pertinent part: "Any statute or rule to the contrary notwithstanding, all papers, records and documents * * * upon any complaint, inquiry, investigation or proceeding relating to the conduct or discipline of an attorney or attorneys, shall be sealed and be deemed private and confidential".

The Appellate Division, First Department, has concluded that this subdivision imposes no nonwaivable blanket bar to public hearings as is manifested by the promulgation of section 6.2 of the rules of its Departmental Disciplinary Committee which provides:

§ 6.2. Waiver.Upon the written waiver of confidentiality by any Respondent, all participants shall thereafter hold the matter confidential to the extent required by the terms of the waiver.1


The provisions for confidentiality set forth in subdivision 10 of section 90, even if in principle considered relevant to the public hearing question, were enacted primarily, if not only, for the benefit of the attorney under investigation.² Accordingly, on a duly executed waiver of confidentiality by that attorney and his demand therefor, the hearings in his disciplinary proceeding must be made open to the public in the absence of a determination by the Appellate Division that for due cause demonstrated the hearings should be closed in whole or in part.³ It may very well be that in some instances operative considerations will dictate that in the public interest the hearings or some portion of them should be closed (cf. Judiciary Law, § 4; other sufficient reasons can be conjectured). We have no occasion in this appeal to delineate the boundary between the attorney's right to waive confidentiality and the court's right to close the hearing; where that line is to be drawn will depend on the facts and circumstances in the particular case. It suffices for purposes of our disposition of the present appeal to observe that the denial of appellant's application in this case was in each instance summary and that no reason or explanation was stated by the Appellate Division or is now advanced by respondent in our court why the hearings in this case should be closed or appellant's waiver of confidentiality rejected.


Accordingly, the order of the Appellate Division should be reversed, without costs, all evidence before the referee

[59 N.Y.2d 555]

stricken, the referee's report vacated, and the matter remitted to that court for further proceedings.

Order reversed, without costs, all evidence before the referee stricken, the referee's report vacated and matter remitted to the Appellate Division, Third Department, for further proceedings in accordance with the opinion herein."

So, all the "Respondent" asked from the court is to follow the law and open her own disciplinary proceedings on her own waiver of confidentiality.

Judge McBryde was allowed to do that in 1999, on 1st Amendment grounds.

In New York, it was allowed to attorneys as of right in 1983.

Tatiana Neroni, an attorney-critic of judicial misconduct, was not allowed to do the same in 2015, because she did not apply for permission of the court when no such permission was required under the law.

New York State Court of Appeals refused to adhere to its 1983 precedent and refused to find any constitutional violations in that behavior.

Go figure.