Pennsylvania Cases August 14, 2020: In re Toothman

Case Description

VERIFIED REPLY BRIEF IN SUPPORT OF OMNIBUS VERIFIED PRETRIAL MOTION AND REQUEST FOR ENTRY INTO THE JUDICIAL DIVERSION PROGRAM

President Judge Farley Toothman, by and through his undersigned counsel, respectfully presents this Verified Reply Brief in Support of Omnibus Verified Pretrial Motion and Request for Entry into the Judicial Diversion Program.

The JCB's overall tone in opposition to Judge Toothman's Motion is that there are certain rights, such as due process, that are so fundamental that the Judge's argument that there are nuances is "alarming" (JCB Brief pg. 4). The JCB's position is simplistic. No right is absolute. All matters of constitutional law involve nuance. The JCB cites no substantive law in support of its legal assertions that Judge Toothman violated well established rights, either in respect to the McCarty case, or Webster, or even Pellegrini. Not one case. Not one statute. Not one rule. No litigant arguing a legal error of such magnitude as to seek serious discipline against a jurist should neglect to explain in detail the underlying legal basis for the violation. Opposition to the Judicial Diversion Program and discipline premised on legal error should not be prosecuted by virtue of confidently asserted legal conclusions, without citation to legal authority. This is particularly so against a sitting judge who has expressed and already demonstrated—repeatedly—his desire to learn and improve in respect to processes and procedure, as well as demeanor, for the benefit of not only the judiciary, but the community which he passionately desires to serve to the very best of his ability.

Page 2

A. McCarty

The JCB's assertion that Ms. McCarty was entitled to "due process" is unilluminating. To simply state that "due process" is owed is not to define the contours of exactly what process is due, when, and in what context. That is the difficult position of a judge and it is not an easy job. Errors in the implementation of due process are typically corrected on appeal, not by discipline.

The JCB's Brief creates the false optic that Ms. McCarty was targeted and thrown in jail over $10 on account of the Sunoco incident. The Judge readily acknowledges that McCarty and her outstanding warrants came to his attention by virtue of the Sunoco incident. His actions, however, were a result of what the record showed him.

Specifically, at the time of the Judge's finding of contempt, McCarty had 9 pending bench warrants (not to mention dozens of other cases on the docket, criminal and otherwise)). The 9 outstanding bench warrants were issued by another judge months before the Sunoco incident. The outstanding warrants revealed noncompliance by McCarty. The Judge felt that some action was warranted to enforce prior orders against a habitual offender in furtherance of justice and in the best interests of the community.

The JCB does not argue that a judge is without power to enforce court orders. Nor could it. "The right to punish for such contempt is inherent in all courts." Appeal of Levine , 95 A.2d 222, 225 (Pa. 1953). Such power has been held to be essential to preserve the authority of the court. Id . Rather, the JCB argues that Judge Toothman investigated, used the incorrect procedure and conducted a hearing without the presence of counsel, concluding that based on these actions, he is incapable of education or improvement through the Judicial Diversion Program.

Page 3

First, as to the investigation, the judiciary is certainly entitled to enforce its own orders. A judge is obligated to uphold the law. (CJC 2.2). Judge Toothman requested dockets, observed the outstanding bench warrants (which were a matter of public record) and took action. At its essence, the JCB's concern is that the Judge became too involved, but he believed he was holding McCarty accountable for her noncompliance in the interest of justice.

Second, as to the procedural process itself, the JCB emphasizes that McCarty lost her liberty, implying that no jail time would have been served had proper procedures been followed. (JCB Brief pg. 5). This is inaccurate. Rule 150 of the Pennsylvania Rules of Criminal Procedure provides that when a bench warrant is executed, the individual is lodged into in the jail for up to 72 hours pending a hearing. And, of course, there are additional consequences contingent upon the result of the hearing. McCarty would not likely have avoided jail time had this procedure been implemented.

Third, the right to counsel does not apply to all proceedings which could possibly result in the loss of an individual's liberty. There are differences between the rights afforded under the United States vs. the Pennsylvania Constitution, differences between criminal and civil cases, and even differences between criminal cases, all governing what procedural process is due. Civil contempt, which offers fewer procedural protections, differs from criminal contempt in that it seeks only to coerce a defendant to do what a court had previously ordered. See , Turner v. Rogers , 564 U.S. 431, 446, (2011). That appeared to be the scenario posed by McCarty's noncompliance

Page 4

with prior orders. There absolutely are nuances which are not obvious from the mere recognition that some type of process is due.

A key Pennsylvania case addressing contempt of court, Commonwealth v. Crawford , 466 Pa. 269, 272, 352 A.2d 52, 54 (1976), further illustrates that due process is a complex area. Therein, the Pennsylvania Supreme Court took up the issue of the right to counsel in the context of direct criminal contempt. The dichotomy of views between the Justices resulted in several different opinions. Several dissenting justices found no entitlement to counsel. Id . at 61. Further, the continued vitality of the decision in Crawford was expressly disapproved in subsequent case law, limiting its application. Commonwealth v. Moody , 125 A.3d 1, 15 (Pa. 2015).

As with the initial Brief, the point of the above is not to conduct a thorough analysis of all of the contours of constitutional law, but to underscore that this is a complicated area. What process is due, when and in what context comes from years of developments in constitutional law, sometimes with the courts making errors along the way that are corrected by the appellate courts, who are internally not always in agreement. Judge Toothman did afford some due process to McCarty, namely, an opportunity to be heard on the official record before any finding of contempt, He admits that he did not afford her counsel, such that it can be argued that she did not receive all that was due in this particular context. The Judge has acknowledged and confirms his desire to be educated on any limitations on his ability to review dockets, the proper procedure and right to counsel when dealing with bench warrants, and the distinction between civil and criminal contempt. For the JCB to argue that due process rights are not nuanced, or to presume that further education of Judge Toothman would serve no purpose, ignores the complexity of the issues.

Page 5

Importantly, none of the cases cited by the JCB lead to a conclusion that the Judicial Diversion Program would not be of benefit in the context of this case. (JCB Brief pg. 5). None of the cases even specifically address the Program. In re Berkhimer , 593 Pa. 366, 368, 930 A.2d 1255, 1256 (2007) involved a magistrate showing pornography, utilizing vulgarity and improperly using of county staff to politic—none of which is at issue here. In re Roca , 151 A.3d 739, 740 (Pa. Cmwlth. 2016) involved case fixing, also not at issue here. In In re Merlo , 34 A.3d 932, 944 (Pa. Cmwlth. 2011), the magistrate was absent from the job about 30% of the time. This is also not at issue, as no one has accused Judge Toothman of not working hard. His record of accomplishments reveals the opposite. In re Merlo is also distinguishable for another reason. Although not a diversion case, the Court found: "We are not convinced that Respondent is not competent in the law; but we are convinced that she was not faithful to it." Id . at 964. Judge Toothman sincerely desires to demonstrate to the Court his commitment to improve and correct any missteps through education and continued mentoring, resulting in the faithful adherence to the law.

B. Pellegrini

In its Brief, the JCB does not address the Judge's legal authority explaining that the posting of a grievance, while not optimal handling of the situation, did not rise to the level of retaliation. (Toothman Brief, pg. 4-6). Instead, the JCB suggests that Judge Toothman has offered differing justifications for his response to the Pellegrini grievance. The Judge has consistently stated that his goal was to preserve confidentiality of the courts.

Given the short duration of the posting, there is no evidence whatsoever that the posting exposed Pellegrini to any actual embarrassment or risk. The Judge had no direct interactions with Pellegrini at that time. The subject matter was not especially sensitive as the grievance involved work on the Judge's personal clock. The fact that a grievance has been filed is not inherently

Page 6

confidential. Moreover, the resulting arbitration decision is considered a public record. See , Lutz v. City of Phila. , 6 A.3d 669, 671 (Pa. Cmwlth. 2010).

The JCB's citation to In re Lokuta , 964 A.2d 988 (Pa. Ct. Jud. Disc. 2008), aff'd , 11 A.3d 427 (Pa. 2011) in the context of discussing Pellegrini is not explained in the JCB's Brief. In re Lokuta arose in the context of a more wide-spread corrupt environment in Luzerne County. There is simply no comparison here. Pellegrini was not a litigant in a case pending before the Judge. Rather, she was a litigant against the Judge, who had previously refused to cooperate in the Judge's efforts to ensure confidentiality. The Judge was entitled to defend himself, and successfully did so against her baseless grievance. The Judge's reaction was not a flawed view of his authority, but entirely consistent with his view that confidentiality of the courts is paramount and in defense of frivolous accusations against him.

C. Webster

Finally, the JCB contends that Judge Toothman fails to understand "important and basic legal concepts" in respect the requirement that Courts are open. (JCB Brief pg 10). Yet, the JCB has not cited a single case supportive of its legal conclusion. Merely repeating the same legal conclusion as set forth in the Complaint does not make it so. In contrast, the Judge has cited ample authority that the right to open courts is not absolute and closure of the court by him to protect a minor is not violative of any rights. (Motion ¶17-39).

D. Kiger / Alleged Local Rule Change

The Kiger matter is primarily one of demeanor. The JCB's Brief does not address the allegation that local rules were changed. Therefore, in an effort not to be repetitive, Judge Toothman has no further response to these specific matters, beyond what is in the original Motion and Brief.

Page 7

E. Conclusion

This Court's decision comes down to a consideration over whether additional training, education and mentoring would be of benefit to Judge Toothman in further service to his community and the judiciary. Judge Toothman is asking for help navigating criminal procedure and the specific issues involving bench warrants and due process, as well as help in navigating administrative issues, with the goal to avoid missteps and develop better strategies in the future. The JCB concludes that the Program would not be successful, but such analysis is not evidence based. The entire point of the Program is to improve the judiciary. The impact to Judge Toothman and Greene County could be immediate and beneficial to all. And, if not successful, the discipline will proceed, such that the JCB will have lost no opportunity to prove its case.

WHEREFORE, President Judge Farley Toothman again submits that he would be a very good candidate for the Judicial Diversion Program and respectfully asks that the Court of Judicial Discipline consider his request for admission as part of his Omnibus Motion and to schedule a hearing on the Motion if it deems one to be warranted.

WEINHEIMER, HABER & COCO, P.C.

/s/ _________
Bethann R. Lloyd, Esquire
PA Atty. I.D. 77385
brl@whc-pc.com

/s/ _________
Amy J. Coco, Esquire
PA Atty. I.D. 73416
ajc@whc-pc.com
602 Law & Finance Building
429 Fourth Avenue
Pittsburgh, PA 15219-1503
412-765-3399

Page 8

I certify that this filing complies with the provisions of the Public Access policy of the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that required filing confidential information and documents differently than non-confidential information and documents.

Submitted by: Counsel on behalf of President
Judge Farley Toothman

Signature: __________

Name: Bethann R. Lloyd, Esq.

Attorney ID No. 77385

Page 9

The undersigned hereby certifies that a true and correct copy of the within REPLY BRIEF IN SUPPORT OF OMNIBUS VERIFIED PRETRIAL MOTION AND REQUEST FOR ENTRY INTO THE JUDICIAL DIVERSION PROGRAM has been served on counsel and/or parties of records, by U.S. First Class Mail, postage prepaid (and by email), on this 13th day of August, 2020, to the following:

Respectfully submitted,

WEINHEIMER, HABER & COCO, P.C.

/s/ _________
Bethann R. Lloyd, Esquire
PA Atty. I.D. 77385
brl@whc-pc.com

Amy J. Coco, Esquire
PA Atty. I.D. 73416
ajc@whc-pc.com

602 Law & Finance Building
429 Fourth Avenue
Pittsburgh, PA 15219-1503
412-765-3399

Page 10

Page 11

Image materials not available for display.

Page 12

Page 13

I, President Judge Farley Toothman, hereby verify that I have read the REPLY BRIEF IN SUPPORT OF OMNIBUS VERIFIED PRETRIAL MOTION AND REQUEST FOR ENTRY INTO THE JUDICIAL DIVERSION PROGRAM . The statements of fact contained therein are true and correct to the best of my personal knowledge, information and belief.

This Verification is made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties.

/s/ _________
President Judge Farley Toothman

DATE: 8/13/2020