Parker v. Judicial Inquiry Commission of the State of Alabama et al

Filing 90

ORDER: it is ORDERED as follows: Dfts' 77 objection to discovery is OVERRULED, and Justice Parker's 77 motion for discovery is GRANTED in part and DENIED in part, as further set out in order. Signed by Chief Judge William Keith Watkins on 12/14/2017. (alm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
HON. TOM PARKER, Associate
Justice, Supreme Court of Alabama,

)
)
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Plaintiff,
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v.
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JUDICIAL INQUIRY COMMISSION )
OF THE STATE OF ALABAMA, et al., )
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Defendants.
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CASE NO. 2:16-CV-442-WKW
[WO]

ORDER
Before the court is the parties’ Joint Rule 26(f) Report.

(Doc. # 77.)

Because the parties could not agree on whether discovery is warranted, the court
ordered additional briefing and held a Rule 16(c)(2)(F) conference. (Doc. # 78.)
As recounted in that Order, “Justice Tom Parker, the plaintiff, contends liberal
discovery is in order, and asks for discovery regarding the Judicial Inquiry
Commission’s (‘JIC’) rules and procedures for investigating ethical complaints,
JIC’s past investigations concerning alleged violations of the Alabama Canons of
Judicial ethics, JIC’s investigation of Justice Parker and any communications that
occurred as part of that investigation, and all claims, defenses, and information
asserted by Defendants.” (Doc. # 78, at 1 (internal quotation marks and citations
omitted).) “Defendants, on the other hand, argue that the case presents only ‘pure

questions of constitutional law’ that can be settled without discovery, and that, in
any event, ‘Plaintiff’s proposed discovery subjects concern either publicly
available legal documents or confidential investigatory material of the Judicial
Inquiry Commission.’” (Doc. # 78, at 1–2 (quoting Doc. # 77, at 3).)
Construing the contested Rule 26(f) report as a motion, Defendants’ blanket
objection to any discovery is due to be denied, and Plaintiff’s motion for discovery
will be granted in part and denied in part. Whether Justice Parker’s claims are
construed as facial or as-applied challenges—and the court need not pigeonhole
them at this point (Doc. # 64, at 16 n.6)—some discovery regarding the prior
actions of the JIC is appropriate. See Greater Balt. Ctr. for Pregnancy Concerns,
Inc. v. Mayor & City Council of Balt., 721 F.3d 264, 282 (4th Cir. 2013) (en banc)
(explaining why discovery can be warranted in some facial constitutional
challenges). Even so, given the confidential nature of the JIC proceedings, and to
prevent discovery from turning into a fishing expedition, discovery will be limited
in scope and method until further order. See Fed. R. Civ. P. 26(b)(1), (c).
Accordingly, it is ORDERED as follows:
First, Defendants’ objection to discovery is OVERRULED, and Justice
Parker’s motion for discovery is GRANTED in part and DENIED in part. (Doc. #
77.)

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Second, initial disclosures by the parties shall be made by December 22,
2017.
Third, Justice Parker’s proposed discovery schedule set out in ¶¶ 6, 7, 8, and
9 of the Joint Rule 26(f) Report (Doc. # 77, at 6) is adopted, and a Uniform
Scheduling Order will be issued. Pretrial, trial, and related dates will be set later.
Fourth, until further order of the court, the parties are limited to written
discovery, to include depositions by written questions.

See Fed. R. Civ. P.

31(a)(2). The parties are reminded that contention interrogatories must relate to
the facts of the case. See Fed. R. Civ. P. 33(a)(2); Fed. R. Civ. P. 33(b) advisory
committee note to 1970 amendment (“[I]nterrogatories may not extend to issues of
‘pure law,’ i.e., legal issues unrelated to the facts of the case.”).
Fifth, until further order of the court, 1 (a) no discovery requests of or to third
parties shall be made, (b) nor is discovery allowed concerning donations made at
any time to the candidacy of Justice Parker, (c) nor is discovery allowed regarding
the deliberations of the JIC.

Limited discovery is allowed regarding prior

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To the extent the grand jury analogy is helpful, the JIC functions somewhat like a grand
jury during its investigatory phase, and more like a prosecutor once it charges a judge with
misconduct and prosecutes the case before the Court of the Judiciary. But, unlike a grand jury,
the JIC (1) gives information to the accused while it is conducting its investigation and before
bringing charges, and (2) becomes the prosecutor once it resolves the investigation against the
subject judge. Because of these differences, it is not the case that all workings of the JIC are
necessarily and completely cloaked in the secrecy long afforded to grand jury proceedings.
Thus, the analogy offered by the JIC (Doc. # 84, at 15) is not helpful in this case. See also
Amendment to Rule 5.C, Rule 6, and Rule 19 and Special Writings (Apr. 1, 2010),
http://judicial.alabama.gov/rules/rules.cfm.

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investigations of the JIC into alleged or possible violations of Alabama Canons of
Judicial Ethics 1, 2A, and 3A(6). Since Justice Parker’s challenges to Canons 1
and 2A are on free speech grounds (Doc. # 1, at 24–26), discovery related to those
canons is limited to investigations concerning a judge’s or a judicial candidate’s
speech. No such limitation exists as to Canon 3(A)(6). Additionally, all discovery
by any party related to JIC investigations is to be conducted confidentially
pursuant to a protective order, with discovery redacted as appropriate, and filed
under seal (if submitted to the court). All names—including the names of the
complainant, the judge under investigation, any witnesses, and anyone else
involved in the investigation—dates, case numbers, location of the judge or
court—including circuit or county location—and any other personal-identifying
information shall be redacted. What is discoverable could include, for instance, an
overview by the JIC of the investigations it has conducted related to Canons 1, 2A,
and 3A(6) with information regarding:
(1) the nature of the alleged violation, including a description of the speech
at issue;
(2) the outcome of the investigation (e.g., dismissed, settled, prosecuted
before the Court of the Judiciary, judge resigned or died, etc.);
(3) if the case was prosecuted, the result (and, if found guilty, the
punishment imposed); and
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(4) whether the accused was a judge or a judicial candidate.
This information might best be produced in chart form, but that is for the parties to
decide.
Sixth, the parties shall confer and report on or before December 28, 2017,
on a proposed protective order regarding any other confidentiality requirements for
discovery related to JIC investigations. Any proposed order shall be (i) filed as an
attachment to the motion, and (ii) sent as a WordPerfect or Word attachment to
[e-mail].
Seventh, nothing in this Order precludes any party from raising any proper
objection to discovery or from filing a motion for protective order as appropriate.
The parties are reminded of their obligations, pursuant to Rule 37 of the Federal
Rules of Civil Procedure, to confer in person in good faith to resolve discovery
disputes prior to filing discovery motions. The provisions of this Order may be
modified by order of the court upon a showing of good cause.
Eighth, subject to the limitations of paragraphs Fourth and Fifth above, the
parties may make such other discovery requests they deem appropriate within the
bounds provided by the Federal Rules of Civil Procedure.
DONE this 14th day of December, 2017.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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