When the Pennsylvania Supreme Court issued its progress report on its response to reform proposals made by the Interbranch Commission on Juvenile Justice in the wake of the Luzerne County Courthouse scandal, it was pretty thin when it came to judicial ethics and the judicial conduct system.
That’s shocking because much of the ICJJ’s work focused on the failure of the judicial conduct system to do anything with a detailed complaint filed against former Luzerne County Judge Michael T. Conahan. After all, it was a lack of judicial ethics and the complete failure of the judicial conduct system that allowed the corruption in the Luzerne County Courthouse to fester. The ICJJ’s work was instrumental in bringing much of that to light.
Don’t get me wrong. The progress report issued by Chief Justice Ronald D. Castille was a good move by the court. It laid out all the steps the court system is taking to review possible reforms. There were lots of details regarding possible changes to the juvenile justice system.
But the report doesn’t inspire a lot of confidence regarding reforms to judicial ethics and the conduct system.
The court issued a new code of conduct for court employees, but sadly some of the same rules don’t apply to the judges. For instance, court employees can’t accept gifts … but judges can. That doesn’t make sense. Accepting gifts, particularly from lawyers, can raise all kinds of appearance problems.
The court also talked up how it added language from Pennsylvania’s Whistleblower Law that protects court employees from retaliation for reporting wrongdoing. That’s fine and good, but if folks don’t have faith in the judicial conduct system — and how can anyone after the Conahan complaint debacle — what are the odds any court employee is going to tell on a corrupt judge?
Besides, there were whistleblowers in Luzerne. They got punished. That didn’t go unnoticed by the legal community.
Which brings us to the most frustrating part of the court’s progress report. Other than appointing a committee to study the canons of judicial ethics, the high court seems content to leave reform to the Judicial Conduct Board, the very agency that dropped the ball with the Conahan complaint and then tried to stonewall the ICJJ before providing different versions of what happened. That would have been like relying on Richard Nixon to reform the White House after Watergate. It makes no sense.
To be fair, the JCB has adopted new internal operating procedures and proposed a new rule that would strip its chief counsel of the ability to determine whether anonymous complaints warrant full investigations without consulting the board’s members.
In the progress report, Castille suggests that ethics training wouldn’t have prevented what Conahan and fellow former Judge Mark A. Ciavarella Jr. did. He goes on to say that “two judges” in Luzerne County had tainted the legal system.
As a colleague of mine likes to point out, in Pennsylvania we have a bad habit of chalking up problems in our legal system to “bad men.” In other words, whenever there’s a scandal, it’s not the system that’s the problem, but “bad men.” Take care of them, and the system is fine, goes that line of reasoning. Think impeached former Justice Rolf Larsen.
That kind of thinking is terribly wrong, particularly when it comes to what happened in Luzerne. I’m not sure that’s something Castille or any of the other justices understand.
What happened in Luzerne County didn’t happen overnight. What happened wasn’t simply the result of two men’s actions.
Conahan and Ciavarella’s path to infamy didn’t start with “kids-for-cash.” According to our sources and testimony during various court proceedings, there was case-fixing and ex parte contacts and meetings with alleged mobsters long before they hatched the scheme that brought the federal authorities down on them.
The two judges weren’t the only ones accused of wrongdoing in the courthouse. Former Luzerne County Judge Michael T. Toole was charged with honest services fraud and filing a false tax return. Other court officials have also been indicted or implicated in the scandal. There was clearly a culture of corruption, one the system failed to do anything about, despite being given plenty of leads.
The Supreme Court should speak out more on this issue. The court could send a very clear message on what is acceptable and not acceptable conduct in the court system.
For instance, there’s been some discussion about whether the JCB should bother to investigate complaints that allege criminal conduct. They absolutely should — what could be a bigger threat to the system? I know at least one justice believes that the JCB doesn’t even have to wait for a complaint to come in to investigate a judge if it has concerns. Why not say that in public?
The canons touch on financial relationships between lawyers and judges, but there is no strict prohibition. Perhaps there should be. I know at least one justice doesn’t think judges should be in business with lawyers.
Should judges get referral fees from lawyers while they are on the bench? I don’t think so. Toole’s tax charge was related to him failing to disclose on his tax forms that he received a $30,000 referral fee from a lawyer. Perhaps the court should address that.
Ex parte contacts figure into most judicial corruption. The court could send a clear message regarding what it expects of lawyers and judges when they interact outside the courtroom.
The judicial conduct system needs to be reformed. If the Supreme Court won’t take a proactive role, there’s a good chance someone else will.
There are state legislators from both houses who are looking to pass bills that would change the system. One excellent bill, Senate Bill 59, has been introduced by Sen. Stewart Greenleaf, R-Montgomery, the chair of the Senate Judiciary Committee.
The bill would require the JCB to review every complaint and make a determination of whether an investigation is warranted and strip the chief counsel of the authority to dismiss complaints.
More importantly, it would prohibit the JCB from deferring its own investigation because of a pending grand jury investigation and, should the JCB be aware of a pending criminal investigation, require the JCB to inform prosecutors that they are investigating a particular judge as well.
In addition, judges who learn they are the subject of an investigation would be required to inform the JCB they are a target. Under the bill, the JCB would then be required to investigate that judge.
Given what we learned from the ICJJ’s report, the bill sounds like a good start. Everyone understands the system needs to be reformed. The question now is whether the Supreme Court will get on board too, or watch that train pull away. •
Hank Grezlak is the editor-in-chief of The Legal Intelligencer. He may be contacted at 215- 557-2486, or by e-mail at firstname.lastname@example.org.