Luzerne County Judges

February 2, 2010

Pa. board needs to provide complaint

Juvenile Commission to get misconduct report of former judge Michael Conahan.

By Terrie Morgan-Besecker tmorgan@timesleader.com
Law & Order Reporter
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HARRISBURG – The state’s Judicial Conduct Board must provide a misconduct complaint filed against former judge Michael Conahan to a commission investigating Luzerne County’s juvenile justice system, but the board does not have to release other documents related to its handling of the complaint, the state Supreme Court has ruled.

The majority opinion, authored by Chief Justice Ronald D. Castille, rejected the JCB’s argument that releasing the complaint to the Interbranch Commission on Juvenile Justice would cause it to violate confidentiality provisions within the state’s constitution.

But Castille agreed that other documents related to the JCB’s investigation are not subject to disclosure.

The ruling, issued Friday, is expected to impact the testimony of several JCB board members and attorneys scheduled to appear today before the Interbranch Commission in Harrisburg.

The hearing is the latest in a series of hearings the commission has held as part of its directive to investigate failings within the county’s juvenile justice system.

Arthur Stroyd of Pittsburgh, attorney for the commission, said he believes the high court’s ruling will preclude commission members from asking specific questions regarding the JCB’s investigation of Conahan. It will not preclude the commission from asking other questions regarding JCB’s rules and procedures, however.

“There is a plethora of other issues,” Stroyd said. “There are different operating procedures the board used in the past and that may have changed since then. That would not fall within the confidentiality claims.”

The commission and JCB have been at odds about the release of two anonymous complaints that were filed against Conahan in the years before he and former judge Mark Ciavarella were indicted on corruption charges.

The commission has questioned the JCB’s handling of the complaints, particularly after JCB board member Edwin Klett, testifying before the commission in December, revealed the JCB held one of the complaints, filed in 2006, for nearly two years before it turned it over to federal prosecutors.

The commission had subpoenaed the complaints, along with other investigative documents. The JCB in December asked the Supreme Court to quash the subpoenas, arguing it could not release the documents because no formal misconduct charges were ever filed against either judge.

Castille sided with the commission based on provisions within the JCB’s own rules that say it can provide information related to violations of criminal law or profession misconduct “to the appropriate agency.”

The JCB maintained the Interbranch Commission was not an “appropriate agency” because it does not have law enforcement powers. But Castille said nothing in the JCB’s rules states that it can only turn over documents to a law enforcement agency.

Castille noted the commission was created in response to “revelation of extensive criminal misconduct.” Its mission – to take steps to ensure such conduct does not occur again – is in line with the mission of criminal prosecutors, he said. He ordered the JCB to turn over the complaint under seal to the commission, which is precluded from releasing it publicly.

Castille agreed other documents, including investigators’ notes, are not subject to disclosure because no provision with the JCB’s rules allows for the disclosure of those types of documents.

The court’s ruling was not unanimous, however. Three justices filed concurring and dissenting opinions that supported part of the majority’s decision, but challenged other portions.

Justice Joan Orie Melvin was the most critical, saying she believed the JCB should be required to turn over all documents, not just the complaints.

Her opinion was based on information that the JCB never investigated the 2006 complaint, but instead referred it to federal prosecutors.

“In my view, the constitution requires more than a mere filing of a complaint for the JCB to invoke confidentiality. I submit that the JCB must at least proffer that it has or is in the process of fulfilling its constitutional charge to investigate,” Orie Melvin said.

She said she believes the JCB should be required to turn over all investigative materials, as well as answer questions regarding what did or did not occur relative to the complaints. The complaints should also be made public, she said.

“To do otherwise risks the appearance of an attempt to shield members of the judiciary, and those charged with judicial oversight, from public scrutiny under the unique circumstances of this matter,” she wrote.

Castille took issue with the opinion, saying Orie Melvin’s interpretation of the JCB’s disclosure rules “would turn the constitutional language on its head.”

“The only circumstances under which the confidentiality provision would actually apply with any real force is when the JCB determines that a complaint is unfounded,” Castille wrote.

Terrie Morgan-Besecker, a Times Leader staff writer, may be reached at 570-829-7179.

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