By Lizzy McLellan and Max Mitchell
A question of Right-to-Know Law procedure in Centre County is likely bound for the appellate courts, putting on hold several cases related to alleged improper contact between members of the judicial branch and the district attorney’s office.
In three similar orders, a Huntingdon County senior judge has issued a preliminary injunction precluding the Centre County government from responding to judicial records requests relating to three plaintiffs—two judges and a district attorney—who have sued over the release of phone records.
Mary Lou Maierhofer of Margolis Edelstein, one of the attorneys for Centre County, said her client is planning to appeal all three orders to the Commonwealth Court. She said the Right-to-Know Law does not prohibit disclosure.
But Kimberly M. Colonna of McNees Wallace & Nurick, an attorney for the two judge plaintiffs, said the case centers on the processes within the RTKL. She said the county “infringed on the judiciary’s role” in that process.
“This is still a young law,” Maierhofer said. “There’s a lot of ambiguity and there’s unclear terms and responsibilities.”
In March, Magisterial District Judge Kelley Gillette-Walker and Centre County Court of Common Pleas Judge Jonathan D. Grine both filed complaints against Centre County and attorneys regarding right-to-know requests. Grine’s complaint named attorney Theodore C. Tanski of the McShane Firm, while Walker’s named Sean McGraw and the Shubin Law Office.
Centre County District Attorney Stacy Parks Miller also filed a complaint against the county and other defendants, including the Shubin firm and attorney Bernard F. Cantorna.
Huntingdon County Senior Judge Stewart L. Kurtz signed an order May 13 enjoining Centre County from responding to requests for judicial records related to the district attorney. Any such requests, the order said, should be redirected to “the appropriate official.”
He signed similar orders May 5 granting Walker’s injunction petition, but granting Grine’s only in part. They granted the portions relating to Centre County, specifying that requests for judiciary records related to the plaintiffs should be redirected to the county prothonotary.
But Kurtz also denied in part Grine’s request for a preliminary injunction against the McShane Firm and Tanski. Kurtz said he would not enjoin publication of information already obtained, as the lawyer’s First Amendment rights also required consideration.
“In this case, plaintiff is a public person; the documents were lawfully obtained; the content of the private communications is not implicated; and, contrary to plaintiff’s assertion, there is public concern about the judiciary,” Kurtz said. “Accordingly, we cannot conclude that plaintiff has sustained his almost impossible burden of establishing a likelihood of success in his case against the McShane Firm.”
Parks Miller’s attorney, Bruce L. Castor Jr. of Rogers Castor, said the rulings were “a complete and total victory for District Attorney Parks Miller.”
Noting that the county commissioners are seeking reelection, Castor said he was not surprised that the decision will be appealed.
“If they don’t appeal, it’s tantamount to admitting they were wrong,” Castor said.
According to Colonna, who is representing Grine and Walker, along with Kathleen Duffy Bruder of the same firm, Walker had also sought to enjoin the Shubin firm from releasing communication records, but she dropped that request upon discovering those records had already been published online.
Colonna said her clients have alleged violation of privacy and are seeking monetary damages.
Maierhofer said the county plans to appeal all three of Kurtz’s orders, and already has two appeals filed with the Office of Open Records.
“The county records they released were in [the county’s] possession,” Maierhofer said. “It was financial information. The taxpayers paid for it and, under the Right-to-Know Law, it was proper.”
Maierhofer added that the records released contained no information that was private or would implicate criminal proceedings. She also said that if the judiciary received a request for the records like the ones in question, it would have to obtain them from the county.
But Colonna said the judiciary should make the decisions on its own records. Based on Frazier v. Philadelphia County Office of the Prothonotary, she said, the district attorney is included in the judiciary. That case said judicial entities include any office of the Unified Judicial System.
“I think the court correctly ruled that the records that were in question are records of the judiciary, which are treated differently under the Right-to-Know Law than other governmental records,” Colonna said. “The county can’t make judgment calls about what judicial records can be released.”
Maierhofer said the RTKL was intended to aid in transparency, so a release of the records should not constitute a violation of the law. But she and Colonna seemed to agree that the law could use some clarification.
“It’s an important issue, but it is almost a process issue,” said Colonna. “I hope that it helps everyone to understand what the right process is for the Right-to-Know Law.”
RTKL Requests
As the open records questions await a final answer, the issues underlying the RTKL requests involving Grine, Walker, Parks Miller and others also await resolution.
Louis Glantz, the solicitor for Centre County, said the May 5 and 13 orders are “unfortunate” because requests like those at hand raised “serious questions” about the propriety of communication between the district attorney’s office and Judge Bradley Lunsford.
“I think [the order] says there’s no right to know when it comes to the judiciary or the district attorney, because they’ve already expressed their opinion that they think phone bills are not subject to public requests,” Glantz said.
Castor denied that any improper communication took place and said the messages were all discussing legitimate issues, including arranging wiretaps. The defense bar, according to Castor, used the messages to create innuendo for political reasons.
Various sources have said the Office of the Attorney General is investigating Parks Miller and the Judicial Conduct Board is looking into Lunsford, who happens to be running for retention this year.
But due to the length of such investigations and the other litigation involved, Glantz said, “unfortunately for the public, it’s going to take literally years for this to all play out.”
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