In addition to the 14 recommendations an American Bar Association committee issued regarding the state’s judicial conduct system, the 56-page report also unveiled aspects of the inner workings of the Judicial Conduct Board, which came under fire after the Luzerne County judicial scandal.
The report, while not overly critical, painted a picture of a system running without adequate software and one that could be more efficient.
The ABA’s Standing Committee on Judicial Discipline stated that its approach to the JCB would be forward-thinking, looking back only to examine the board’s strengths and weaknesses, not the scandal that tested them. For instance, the committee noted the chief counsel’s office allocates a “significant percentage of staff resources” to the infrequent occasion that a complaint makes its way to Court of Judicial Discipline. This, the committee said, slows an already-crawling case management system, which has been steadily opening more cases over the past five years without the benefit of up-to-date case management software.
“The consultation team was unable to pinpoint the exact reason why these trials consistently resulted in such a redirection of staff resources for their duration,” the committee said, noting that CJD trials are not overburdened by procedure.
The committee, which spent three days at the JCB in January, said the board had a backlog of 386 matters when it drafted its report.
It revealed that the board typically agrees with its chief counsel, Joseph A. Massa Jr., and that Massa had been spending one-third of his time on administrative duties at the time of the ABA review.
Another item that raised the eyebrows of some court-watchers — that judges can file for reimbursement of legal fees — was a policy the committee suggested be revised, if not reversed.
For a complaint to work its way through the system takes time, even though most are dismissed after a preliminary inquiry (DAPI). On average, such complaints were dismissed nearly five months after the JCB opened them, the committee found, and they accounted for 90 percent of files closed in 2009.
If a complaint is thrown out after a full investigation, the committee said, the JCB has had it, on average, for 12-18 months.
When a case is dismissed after a preliminary hearing, it is not as if the complaint had been simply crumpled up and tossed out. Every complaint is reported in detail by its assigned counsel before going in front of the board. The ABA committee said the JCB would benefit from streamlining this process.
Recently, the board implemented a teleconferencing system to accommodate cases up for DAPI, but the committee saw more room for improvement, further suggesting the JCB split itself into two “investigative panels” to deal with weak cases more efficiently.
A swifter pace would likely be well received by judges, noted Pennsylvania Chief Justice Ronald D. Castille.
“If you’re a judge or a justice or a chief justice, you like these things to get dealt with rapidly,” Castille said in an interview with The Legal . He added that most cases are “disgruntled litigants and criminals.”
For those cases that continue past a preliminary investigation, the road to trial is long and has a number of exit ramps.
If a complaint causes a formal investigation, the judge under scrutiny receives a formal notice of the specific allegations he or she is facing, as well as the alleged rules or statutes violated. The judge may know of the complaint at this time, as the chief counsel is allowed to issue notices to judges without board consent, according to the report.
Unlike a notice of formal investigation, such letters generally contain requests for information from the judge but do not list alleged violations or notify the judge of his or her right to counsel, according to the JCB’s internal operation procedures.
After the investigation, the board can dismiss the complaint in a variety of ways or proceed with charges.
The board can drop the complaint with no sanctions, issue a non-disciplinary “letter of caution” to the judge, or issue a “letter of counsel.” The last option is considered an informal disciplinary measure, and the judge must agree with its stipulations or face trial.
If the case is dismissed without formal charges, the board can advise the complainant of the disposition, the committee said. Later in the document, the committee suggested keeping the complainant up to date throughout the entire investigative process. In 2009, three cases reached the CJD — an annual figure that holds relatively true throughout the court’s 18-year existence.
However, the committee said, those few cases weigh heavily on the staff’s resources.
In fact, former JCB board member Edwin L. Klett has testified in front of the Interbranch Commission on Juvenile Justice that up to 40 percent of the JCB’s manpower goes into cases that hit the CJD, according to the report.
The ABA committee, which included a judge and two members who have litigated disciplinary cases, acknowledged the variable complexity of judicial discipline cases but said “those factors should not affect, to the extent [of the JCB], how the office operates.”
In its recommendations, the standing committee then asked the board to examine its pretrial resourcing, noting that technology would be a helpful tool.
Where resources on both the board and in Massa’s office can be put to use before the trial, the committee said, should be examined.
“For example, are optimal efforts made by both parties to reach stipulations of fact, testimony, and authenticity of documents being made ahead of time?” the ABA committee asked. “To what extent can the need for discovery at the trial level be limited by ensuring that as much evidence as possible is obtained during the investigative process?”
The committee also described the e-filing system the JCB has — a spreadsheet called the “Intake/Status Log” — which is presented at monthly board meetings. But the committee spent more time detailing what the board doesn’t have — an efficient software system.
Such a software system, the committee said, would organize information about judges and complainants, log the number of investigations tied to a certain judge, track the nature of complaints the board receives, and record correspondence.
To help accommodate such technological upgrades and to battle what board-members have said is a historically under-funded body, the JCB is asking the state for a 60 percent raise for the following year, according to the report.
Although the ICJJ has stated it lacks evidence to suggest the JCB wasn’t funded properly, Pennsylvanians for Modern Courts and the ABA both converged on the importance of increased funding in separate reports.
“They are looking at it in a responsible way,” PMC Deputy Director Shira Goodman has said. “They’re not just saying give more money, but they are allocating where that money would go.”
Goodman lauded the ABA committee’s report for its all-access approach, noting that its detailed view of the JCB’s practices raised a surprising point: Currently, judges can receive reimbursement for legal fees if they are not found guilty of misconduct.
“I was surprised to see that,” Goodman said. “I have never seen that before.”
According to the report, the Administrative Office of Pennsylvania Courts refunds the judges (although it was unclear where that funding came from). The ABA committee said this policy should be reconsidered, if not reversed.
The report recommended that judges who receive informal reprimands by the JCB should cover the costs of their individual proceedings.
But “that’s a little too draconian,” Goodman said.
Goodman said she would be interested in hearing more about policy change regarding fee reimbursement. But in the meantime, she added, a pay-your-own-way approach seems to best fit the judicial conduct system.
“This is kind of one of those cases where everyone should just bear their own costs,” she said. “I’m not sure a judge should have to reimburse the JCB its fees either.”  •