Centre County Courts ‘in Turmoil’

TheLegalIntelligencer

By Max Mitchell and Lizzy McLellan

In Centre County, a spate of lawsuits involving jurists, attorneys and county officials has created a contentious atmosphere, after several controversial open records requests opened a can of worms.

On one side, several defense attorneys are pointing to cellphone records that they claim show a very close relationship between judges and the Centre County District Attorney’s Office.

On the other side, a common pleas judge, a magisterial district judge and District Attorney Stacy Parks Miller are suing the county for releasing their cellphone records, as well as the defense attorneys who requested the documents. Parks Miller, who has also been accused of forging a judge’s signature and had property seized during a police search of her office in connection with the allegation, has maintained she is the subject of a conspiracy. The state Attorney General’s Office is now reviewing the forgery case with a grand jury, according to Parks Miller’s attorney.

As the lawsuits and requests began to mount, President Judge Thomas K. Kistler in March signed an order defining the county’s open records procedures, only to rescind it days later.

Earlier in the year, Kistler had been nominated to fill a vacancy on the Pennsylvania Supreme Court, but he withdrew from the nomination one day before his confirmation hearing, citing a vacancy in court administration and “several other urgent matters in our court.”

Although his withdrawal came just days after media reports of a 2013 email Kistler sent, depicting a black man and black woman during an apparent jail visit, Kistler said those reports were not behind his decision to give up the interim justice nomination.

His county’s court, he said at the time, was “in turmoil.”

Phone Records

According to those familiar with the situation, the controversy largely began after defense attorney Bernard Cantorna filed right-to-know requests regarding phone records of Judge Bradley P. Lunsford and members of the District Attorney’s Office. Cantorna included the requested records as exhibits in a post-sentencing motion in Commonwealth v. McLure.

The post-conviction filing asked Lunsford, who had been overseeing the case, to recuse himself. Lunsford was taken off hearing non-DUI criminal cases in December.

Cantorna’s motion, filed in November, said assistant district attorney Lindsay Foster sent or received 152 text messages with Lunsford during three days of trial. The filing also cited numerous messages between Lunsford and then-assistant district attorney Nathan Boob and Parks Miller before and after the trial.

Boob resigned from Parks Miller’s office in late March. In his resignation letter, he said he got a higher-paying position in a different county, and he referenced recent “attacks” on the District Attorney’s Office and defense attorneys’ attempts to “undermine” the office.

In December and February, defense attorney Sean McGraw of the Law Office of Andrew Shubin also requested records of messages between the court and the District Attorney’s Office.

In a March filing in Commonwealth v. Blake, McGraw said between March and October 2014, Parks Miller and Boob exchanged 500 text messages with Lunsford, many of which were sent during county business hours.

“And by way of further example, on July 24, 2014, at 4:07 p.m., undersigned counsel emailed Judge Lunsford and Boob information requested by Judge Lunsford about disposition options for Blake’s bail motion,” the filing said. “Seven minutes later, Judge Lunsford initiated a series of text message exchanges with Boob.”

Also in March, Magisterial District Judge Kelley Gillette-Walker and Judge Jonathan D. Grine both filed complaints against Centre County and attorneys regarding right-to-know requests. Grine’s complaint names attorney Theodore C. Tanski of The McShane Firm, while Walker’s names McGraw and the Shubin firm.

The complaints allege privacy violations and ask for declaration that the records requested were not provided legally. Both also filed petitions for injunctions, in which they say records of judicial agencies other than financial records are not subject to disclosure under the Right-to-Know Law.

In McGraw’s response to the complaint, he said an injunction would infringe on the defendants’ constitutional rights.

Grine and Walker have the same attorneys, Kimberly M. Colonna and Kathleen Duffy Bruder of McNees Wallace & Nurick.

“We think the law is very clear and that it exempts even partial phone numbers,” said Bruder. “If that is not to be followed, then I think all of the exemptions are subject to potential violations. That’s a concern.”

Parks Miller is also seeking an injunction, and is claiming that her privacy rights were violated. Parks Miller sued McGraw, Shubin, Cantorna and Bryant & Cantorna.

Parks Miller’s filing contends the RTKL requests were improperly made and circumvented any input from her office. The disclosures, she argued, violated laws prohibiting disclosure of law enforcement investigative information. She also said the District Attorney’s Office funded the staff phones with drug forfeiture proceeds, and that she was the victim of conspiracy.

“The county actors had no valid purpose or legal authority for hiding the request from DA Parks Miller, and as with the Cantorna request, intended to use the request to embarrass DA Parks Miller as part of a larger effort to drive her from office,” said the complaint, which was filed by Bruce Castor Jr. of Rogers Castor.

Castor recently told the Law Weekly that the messages were all discussing legitimate issues, but “the defense bar created innuendo that there’s some kind of shenanigans.”

According to Centre County Solicitor Louis Glantz, the county has taken the position that the phone bills are county records because the county contracts for the services and pays the bills.

“It’s our belief we are following the policy in accordance with the law,” Glantz said.

Glantz said the right-to-know requests for phone records or financial information are “not that out of the ordinary,” and have increased somewhat since Cantorna and McGraw’s filings.

Kistler said he could not comment on the ongoing litigation, but noted that the court has also been dealing with two administrative vacancies, including the retirement of its court administrator, who had served for 25 years.

“The court is moving forward after the successful filling of several personnel vacancies, and is eager for the resolution of several outstanding issues which may have diverted the public’s attention from the excellent tradition of this court,” Kistler said.

Right-to-Know Law

Centre County Right-to-Know Law procedures are currently in flux.

A meeting took place March 13 at which the Administrative Office of Pennsylvania Courts, Kistler, Lunsford, Grine, Walker, Judge Pamela A. Ruest, Centre County Administrator Tim Boyde and Glantz gave input on RTKL procedures.

The meeting led to an order signed by Kistler on March 16, which said that requests regarding the judiciary should be directed to the court administrator, rather than the county, and requests related to the District Attorney’s Office should be denied if they might implicate communications with the judiciary. The order also said the county must notify the court administrator and affected jurists about requests affecting the court or a member of the judiciary.

But that order was rescinded March 24. Parks Miller referenced this action in her injunction petition.

“However, bowing to pressure from the very county actors whose illegal disclosures gave rise to the controversy in the first place, Judge Kistler rescinded his March 16 order, and is presently working to replace it with a watered-down policy that essentially preserves the opportunity for the county actors to continue their illegal dissemination of exempted materials,” she said.

Former executive director of the Pennsylvania Office of Open Records Terry L. Mutchler, of Pepper Hamilton, said the Centre County issues will make an interesting case study on the RTKL. She pointed out that the law is still relatively new—she was appointed as the first OOR director in 2008.

“We get into very dangerous territory when there are attempts, judicial or otherwise, to put restrictions on the law,” Mutchler said. “The unfortunate part about an action like this is that it sends the message that the Right-to-Know Law prohibits the release of certain information.”

The RTKL lists a number of exemptions for certain records, but it does not prohibit or bar the release of those records, Mutchler said.

“When someone says ‘under the Right-to-Know Law I can’t release that,’ it’s a fallacy,” she said.

The law does require each government agency to have a Right-to-Know Law officer, and defines the timeframe for responding to requests.

According to the Centre County court administrator’s office, the court administrator is the county judiciary’s open records officer and Kistler is the judiciary’s appeals officer. But it was not clear how an appeal would be handled if the request were related to Kistler.

Mutchler said open records confusion is not unique to Centre County, or to Pennsylvania.

“I think what you’re seeing in Centre County right now is a collision of philosophy and practice,” said Mutchler. “There’s a lot of damage that could be done to the Right-to-Know Law as a result of this case.”