Request for justice’s recusal in ballot case draws lawmakers’ ire
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After fierce public debate about a Luzerne County legal filing asking for the recusal of new U.S. Supreme Court Justice Amy Coney Barrett from a case involving ballot-counting deadlines, a council majority voted to withdraw it Tuesday.
Council members had no idea outside legal counsel would be filing the motion on the county’s behalf and learned about it when it made national news hours before the virtual session.
Councilman Harry Haas said he was “extremely upset” council did not know the county would be seeking a Supreme Court justice’s recusal.
“This is a colossal big deal,” said Haas, who demanded a private executive session to further discuss concerns. “This was just wrong on so many different levels.”
When council returned from executive session, a majority initially rejected a proposed motion advising the county manager to notify outside counsel to immediately withdraw the motion to recuse.
Only five of 11 council members approved the motion seeking withdrawal: Haas, LeeAnn McDermott, Chris Perry, Stephen J. Urban and Walter Griffith.
But in a rare move later in the meeting, Councilwoman Kendra Radle asked to revote, saying she does not want to set a legal precedence that a Supreme Court justice cannot be trusted to independently make a decision on recusal.
In this fresh round of voting, Councilman Robert Schnee also supported withdrawing the recusal filing in addition to Radle, bringing the count to seven for passage.
Contacted during a meeting break, county Manager C. David Pedri said he will abide by council’s wishes and ask legal counsel to withdraw the recusal filing.
Larry Moran, of Joyce, Carmody & Moran, P.C., told council his firm filed the recusal request as part of continuing election-related litigation filed by President Donald Trump’s campaign and Pennsylvania Republicans.
While Luzerne County was singled out in national coverage, Moran said some of the other 66 counties have enjoined its filing.
At issue is whether the U.S. Supreme Court will reject a Pennsylvania Supreme Court ruling that mailed ballots must be counted if they are postmarked by Election Day and received by 5 p.m. Nov. 6.
In the June 2 primary, completed ballots had to be physically returned to the county election bureau by 8 p.m. on Election Day, and postmarks did not count. For the general election, the state Supreme Court granted the Democratic Party’s request to order a three-day extension.
The county’s filing argued Barrett should recuse herself from the decision due to her “unprecedented” nomination and confirmation so close to a presidential election.
“As concerning as that is, what is even more troubling is the language President Trump has used in consideration of this nomination, linking it directly to the electoral season at hand, with implications for his own re-election,” the county’s filing said.
Moran said he has filed more than 30 motions since taking over the case and had informed county Manager C. David Pedri of the plan to file the recusal request.
The Supreme Court was split 4-4 on the three-day issue before Barrett’s appointment, and reaching a speedy resolution on whether she would recuse herself in the latest request would allow Pennsylvania counties to know sooner if the extension would stand so they can prepare, Moran said.
But Urban said the county’s decision to act alone “gives us a black eye that we don’t need.”
Griffith said he does not believe it was “proper” to seek recusal of a Supreme Court justice and said council should have been alerted to “something of this magnitude.”
Before changing her vote, Radle said she wholeheartedly supports Barrett’s Supreme Court appointment but also believed Moran had an obligation to take action he believes is the “best move” legally.
Perry said he did not support the recusal filing.
“I’m tired of Luzerne County always looking bad all the time,” Perry said.
Voting against seeking withdrawal of the recusal request were Council members Sheila Saidman, Tim McGinley, Matthew Vough and Linda McClosky Houck.
Saidman, an attorney, said Moran is taking steps necessary to resolve the litigation.
Several citizens criticized the recusal filing during public comment.
Hazleton resident Mark Rabo called it a “political stunt” and “disgusting.”
Keith Hunter, of Trucksville, said it was an “embarrassment to the county.”
Hazle Township resident David Bogansky said he spoke to many citizens upset about the filing, particularly following a still-pending federal investigation over nine mail ballots discarded by a temporary election worker.
“Who is in charge? Who is running the show?” he asked.
County Chief Solicitor Romilda Crocamo said Moran’s firm was hired because it was on a list of outside legal counsel approved by the insurance carrier.
The county’s liability insurance is providing up to $100,000 for the legal representation, Crocamo said. This litigation qualified for liability coverage because the county could be on the hook for a portion of the plaintiff’s legal fees, she said.
Because her office was unaware of the recusal filing, Crocamo said she will inform all outside legal counsel that her office should be notified of all planned filings in advance.
County Election Board Vice Chairman Peter Ouellette said he and his fellow board members were not informed of the filing.
Election Board member Joyce Dombroski-Gebhardt said she believes the board should have received notification of the filing and had an opportunity to weigh in because it was technically filed on behalf of the election board.
A Republican, Dombroski-Gebhardt said the litigation has placed her in a difficult situation because she personally opposes extending the acceptance of mail ballots three days.
“I am adamant that the election is over on Nov. 3. That’s it,” she said.
County Republican Chairman Justin Behrens, who did not attend the council meeting, said he has serious concerns about the filing and believed it had the tone of a “political agenda.”
“My biggest concern more than anything in this is that the gentleman who filed this on behalf of the Luzerne County Election Board threw a fundraiser party for Joe Biden,” Behrens said. “If the board is supposed to be nonpartisan, why is it represented by this gentleman who is a Biden supporter?”
Moran told council his personal political views had no bearing on the filing and that he was acting in the county’s best interest in resolving the litigation.
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Reach Jennifer Learn-Andes at 570-991-6388 or on Twitter @TLJenLearnAndes.