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Oversight of Pa. judges is wrapped in secrecy

The Judicial Conduct Board, created to protect citizens from errant judges, is criticized as doing just the opposite.

HARRISBURG - One of state government's most secretive agencies is housed near the end of a hallway on the third floor of the Pennsylvania Judicial Center, just across Commonwealth Avenue from the Capitol.

A piece of ordinary white bond paper, tucked into a protective plastic sleeve and taped to a window at the entrance, says "Judicial Conduct Board" in half-inch letters.

There is a small waiting room in Suite 3500, but the door leading to the inner offices is marked with two signs: "Confidential Area. Do Not Enter Beyond This Point" and "The Procedures of the JCB Are Confidential. The Use of Cameras and All Recording Devices Is Prohibited."

The board was created in 1993 to protect Pennsylvania citizens from judges who abuse their power, either ethically or criminally. But recent revelations about its procedures and activities have led some critics to suggest a role reversal in which the JCB's focus is to look after the interests of Pennsylvania's 1,200 judges.

"The outrage is that the JCB believes it is more important to protect members of the judiciary than to protect the citizens the judiciary is supposed to serve," says Tim Potts, executive director of Democracy Rising PA, a nonprofit governmental-reform group.

"The judges don't need protection," adds Robert L. Byer, a former Commonwealth Court judge. "They already have lots of that. They're even immune from being sued for almost anything they do in the courtroom. It's the public that needs protection from rogue judges."

The impetus for the criticism has been the failure of the JCB to disclose what, if anything, it did about two Luzerne County judges who have been charged by federal authorities with taking $2.8 million in kickbacks from a prison-management firm.

The JCB received a complaint about the two judges, Michael T. Conahan and Mark A. Ciavarella Jr., in September 2006.

The eight-page anonymous complaint was directed against Conahan, and charged that he met regularly with a known Northeastern Pennsylvania organized-crime leader; engaged in nepotism to an extreme degree in naming courthouse personnel; sat in judgment on cases in which personal friends were involved as lawyers; arranged bank loans for young lawyers; and manipulated the assignment of cases to other judges.

It also informed the JCB of a personal relationship among the two judges and Robert J. Powell, a lawyer who owned two juvenile-detention centers that were paid about $30 million in public funds through contracts with the county.

Powell pleaded guilty to charges in connection with paying the judges the kickbacks, which federal authorities say motivated Ciavarella to sentence thousands of children to detention centers, including the two owned by Powell. The two now-former judges have denied this charge.

The JCB has been insisting for months that disclosing details about its actions on the complaint would violate basic confidentiality requirements. This determination for secrecy has caused a gaping rift in its own ranks.

Last week, John R. Cellucci, the current JCB chairman, told the Legal Intelligencer, the Philadelphia legal newspaper, that the board voted to table the complaint after being advised by its chief counsel, Joseph A. Massa Jr., that there was an ongoing criminal investigation of Conahan.

Cellucci, a Berwyn contractor and developer, said Massa placed the Conahan complaint before the board without going into the nature of the allegations. "We just followed the procedure of the boards before us and before us and before us. We decided to keep it under seal until the investigation was completed," he was quoted as saying.

Cellucci told the Legal Intelligencer that none of the board members saw the complaint or knew its details. He said the procedure of the board has been to table its own inquiries when an investigation is being conducted by law enforcement.

In testimony this month before a special panel, another board member, Edwin L. Klett, stated the same policy and added: "If we are Monday-morning quarterbacking, knowing what we know now, I think that the board, staff and prosecutorial authorities would have been all over this earlier. If you're asking me in retrospect, given what we knew, when we learned it, would we have done it differently? I don't think so."

But most of Cellucci's statements in the article were labeled "incorrect" by Paul H. Titus, a Pittsburgh lawyer who has been retained by the embattled JCB. Titus disputed Cellucci's account in an e-mail to The Inquirer, but declined to elaborate. "Because of the provisions of the Pennsylvania Constitution, the board can't respond further to your inquiry," he said.

Neither Cellucci nor Massa could be reached for comment.

Titus did not dispute another statement by Cellucci to the Legal Intelligencer. Cellucci said that Patrick Judge Sr., a Luzerne County auto-supply executive who was chairman of the JCB when the Conahan complaint was received in 2006, did not participate in the vote to table but disqualified himself. Judge has had several business ties to Conahan in Pennsylvania and Florida.

After leaving the JCB in 2007, Judge was appointed by the state Supreme Court to the Court of Judicial Discipline, an eight-member body that hears and decides cases when formal charges are brought against judges by the JCB. His term on the disciplinary court expires in 2011.

The 2006 complaint marked the second time Conahan had come to the attention of the JCB. A witness in a federal drug-trafficking trial testified in 1991 that Conahan, then a district magistrate in Hazleton, had warned him against having dealings with another man who was under investigation. The witness also linked Conahan to a Florida drug trafficker. The JCB reviewed the testimony, but no action was taken. No charges were filed against Conahan, and he denied any involvement in illicit drugs.

This month, the JCB drew criticism from the Interbranch Commission on Juvenile Justice, which has been set up to conduct a noncriminal investigation of the circumstances that led to the Luzerne County scandal in order to prevent a recurrence.

Massa and Klett appeared before the commission reluctantly, and upon advice from Titus they refused to answer most questions about the JCB's handling of the Conahan complaint. This drew a sharp rebuke from Superior Court Judge John M. Cleland, the commission chairman, at a hearing two weeks ago in Wilkes-Barre.

"In our efforts to gather information from the JCB, we have asked for it formally, informally, on the record, and off the record," Cleland said. "Our requests for meaningful information have been met with an unyielding refusal to provide the information, based on an assertion of constitutional confidentiality.

"One is tempted to conclude that your definition of confidentiality is nothing more than a definition of convenience."

In an interview this week, Cleland said the strength of Pennsylvania's juvenile-justice system is that it is flexible and gives wide powers to judges. "I'm in total agreement with this approach," he said, "but if we are to do that, we must have an effective process of protecting juveniles and their families from abusive judges. One of the premier goals of this commission is to determine whether such a system is in place and, if not, to establish one."

Cleland said he would press the JCB for more information on how it protects Pennsylvanians at commission hearings in Harrisburg in January.

Byer, the former Commonwealth Court judge, said the Pennsylvania Supreme Court should step in and order the JCB to cooperate fully with the interbranch commission. "It's clear that the members of this board did not do their job in the Luzerne County disgrace," Byer said, "and they are acting as though they have something to hide."

Byer, who served on the Court of Judicial Discipline from 1997 to 2001, said the JCB has established a bad image. "Without an effective, independent Judicial Conduct Board, lawyers are going to be reluctant to challenge questionable activities by judges. That's what happened in Luzerne County. If the board is perceived to not be doing its job, it makes it all the more difficult for lawyers to step forward."

Between 2001 and 2007, thousands of children went before Ciavarella, often without attorneys, and were sent to detention centers after hearings that lasted only a few minutes. Many were incarcerated for relatively minor offenses that would have drawn lesser penalties in most courts.

Last October, the state Supreme Court overturned about 6,000 juvenile convictions issued by Ciavarella between 2003 and 2008, saying none of the young offenders had received a fair hearing.