In re Toothman

• Decision Date: 17 May 2021
• Docket Number: No. 1 JD 2020,1 JD 2020
• Parties: IN RE: President Judge Farley Toothman Court of Common Pleas 13th Judicial District Greene County
• Court: Pennsylvania Court of Judicial Discipline

IN RE: President Judge Farley Toothman Court of Common Pleas 13^th Judicial District Greene County

No. 1 JD 2020

COMMONWEALTH OF PENNSYLVANIA COURT OF JUDICIAL DISCIPLINE

May 17, 2021

RESPONDENT'S BRIEF

Retired Judge Farley Toothman ("Respondent"), by and through his undersigned counsel, Bethann R. Lloyd and Amy J. Coco, respectfully presents this Brief for the Court's consideration in conjunction with the jointly submitted Stipulations in Lieu of Trial.

A. THE APPLIABLE STANDARD OF PROOF IS CLEAR AND CONVINCING EVIDENCE.

In cases tried before the Pennsylvania Court of Judicial Discipline against judicial officers who are alleged to have violated the Pennsylvania Code of Judicial Conduct or the Pennsylvania Constitution, the Judicial Conduct Board (JCB), as prosecutor, bears the burden of proof by clear and convincing evidence. Pa. Const. Art. V, § 18(b)(5).

Respondent's potential missteps are not nearly so egregious, nor clear and convincing, as is implied by the sheer volume of counts against Respondent. The JCB brought 21 separate counts against Respondent, alleging violations of Cannon 1 (Rule 1.1 Compliance with the Law; 1.2 Promoting Confidence in the Judiciary; Cannon 2 (Rule 2.2 Impartiality and Fairness; Rule 2.5(A) Competence; Rule 2.8(A) Decorum/Order; Rule 2.8(B) Decorum/Courteousness; Rule 2.9(C) Ex Parte communications), as well as an alleged derivative violation of Article V §17(b) Constitution of the Commonwealth of Pennsylvania.

With respect to the overarching allegation in Count 21 that Respondent's actions brought the judicial office into disrepute, the JCB Complaint focuses primarily on the Ms. McCarty matter, but references the entirety of the allegations against him. Setting aside Ms. McCarty, it is hard to fathom why a judicial officer would face disciplinary action for interpreting a seldom utilized local rule to benefit the indigent, for closing a proceeding out of sensitivity for the privacy interests of two minor children, or for revisiting a prior court order to protect an unrepresented litigant from the court's perception that she may have been unfairly taken advantage of in an earlier proceeding. Respondent's actions were not erroneous, nor self-serving, and in no way brought the judiciary into disrepute. Even in the Pellegrini matter, as soon as Respondent was instructed to reverse course in respect to his posting of her grievance, he immediately did so, demonstrating compliance, not disrespect. Respondent acknowledges and regrets multiple errors in respect to Ms. McCarty, errors that he will not attempt to excuse herein.

Against this backdrop, it is appropriate to consider the applicable case law in respect to the charge that Respondent brought the judicial office into disrepute. It cannot be presumed that a violation of a provision (constitutional, canonical or criminal) automatically lowers public acceptance of the authority of the judicial office. In re Berkhimer, 877 A.2d 579, 591-593 (Pa. Ct. Jud. Disc. 2005); citing, In re Smith, 687 A.2d 1229 (Pa.Ct. Jud. Disc. 1996). "'Disrepute' necessarily incorporates some standard with regard to the reasonable expectations of the public of a judicial officer's conduct. Even if a judicial officer's conduct could reasonably result in the lessening of respect for that judge, it cannot be assumed that the same actions would necessarily bring the judicial office into disrepute." Id.

"To sustain a charge under this Section, the Board must make a persuasive showing that (1) the judicial officer has engaged in conduct which is so extreme that (2) it has resulted in bringing the judicial office into disrepute." Id. at 594 (italics in original).

B. RESPONDENT INTERPRETED A LOCAL RULE TO BENEFIT INDIGENT LITIGANTS.

The JCB charged Respondent with modifying a Local Rule without following proper procedures, demonstrating administrative incompetency. Respondent did not modify the approximately 20 year old Rule; he merely interpreted it to benefit indigent litigants. Respondent did not personally benefit in any way. (Stip. ¶155).

The Local Rule at issue, Green County Local Rule 1920.51, provided for the payment of an additional fee upon the filing of a divorce complaint. The fee was be used for the costs of transcribing hearings before a master in a divorce hearing. (Stip. ¶140-142). The parties have not been able to locate historical authority for the purpose of the Rule, but agree that the Rule was rarely invoked, leading to a substantial balance in the stenographer fund that needed to be addressed urgently. (Stip. ¶143). Respondent took action to have the money held in a financial institution, where it would be separate and protected, until it could be determined how to spend the money. (Stip. ¶143-145). Respondent then sought the assistance of the AOPC to determine the proper disposition of the funds. (Stip. ¶153).

Respondent felt the proper interpretation of the Rule was to utilize it in cases of indigency. He explained his interpretation to a master who was seeking payment. (Stip. ¶150). Respondent acknowledges that the Rule does not expressly restrict the use of funds to benefit the poor. (Stip. ¶152). However, it is hard to fathom why a Rule would create a stenographer fee fund to benefit parties that could afford to pay the stenographer themselves and directly.

A court has broad powers in construing its own rules. This includes the power to interpret them, to suspend them and to determine whether they are to be rigidly enforced. McFadden v. Pennzoil Co., 191 A. 584, 585 (Pa. 1937); See also, In re Stokes' Est., 74 A.2d 517, 520 (Pa. Super. 1950)("the court which makes the rule may interpret it, determine whether it shal [sic] berigidly enforced, and in a proper case may suspend or disregard it in order that injustice be prevented[.]" See also, Curran v. James Regulator Co., 36 A.2d 187, 188 (1944)(holding that the common pleas court had broad authority to suspend the application of its local rules to open a default judgment).

Consistent with the above guidance, Rule 126 of the Pennsylvania Rules of Civil Procedure teaches: "The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties." Further, the Judicial Code provides: "The provisions of this title shall be construed so as to vest in the unified judicial system and in the personnel of the system power to do all things that are reasonably necessary for the proper execution and administration of their functions within the scope of their respective jurisdiction." 42 Pa.C.S. § 103.

Respondent's actions demonstrated no violation of the law or incompetency. Further, his actions demonstrated that he was performing his administrative functions in interpreting and implementing the Local Rule, benefiting poor litigants and protecting the fund itself. By August 2019, the Court completed a re-write of all Local Rules, in compliance with Pennsylvania Rule of Judicial Administration 103(c)&(d). (Stip. ¶154). Respondent's actions were fully consistent with the concept of judicial administration and did not, in any manner, bring the judiciary into disrepute. Therefore, he asks that the charge be dismissed and no violation found.

C. IN THE WEBSTER MATTER, RESPONDENT STRUCK A DIFFICULT BALANCE BETWEEN THE RIGHT TO PRIVACY AND THE RIGHT TO OPEN COURTS.

Respondent has been charged with incompetency and failure to comply with the law because he closed the courtroom to protect two children, ages 8 and 11, who were going to be called to provide testimony of their being abused in the context of a Protection from Abuseproceeding. (Stip. ¶124-125). Specifically, Respondent was concerned that the children did not want to testify, that one had potentially embarrassing manifestations of the turmoil in her life and was concerned that the girls might be intimidated by those watching. (Stip. ¶125-127). Respondent was neither incompetent, nor ignorant of the law. Rather, Respondent was protective of the children and engaged in an appropriate balancing act of the competing interests involved. Although the JCB challenges Respondent as citing inapplicable authority for his decision-making, a deeper probe into the law in this area reveals that Respondent's overall balancing and recognition of the competing interests involved was ultimately correct.

The Explanatory Report for the AOPC Unified Judicial System Public Access Policy, which was one of the authorities cited by Respondent, teaches that the presumption of openness has to be weighed against other considerations, such as privacy and security; striking the right balance is not an easy task. (Stip. ¶138). The constitutional and common law presumption of openness is not absolute and must be carefully weighed against privacy concerns.

Article 9 and 11 of the Pennsylvania Constitution specifically address the concept of keeping courts open to the public. Article 11 provides: "All courts shall be open[.]" Article 9 provides that a criminal defendant has a right to a public trial. Although Article 9 is not applicable to a PFA proceeding, which is not criminal in nature,¹ its interpretation is nevertheless instructive here, as the Pennsylvania Supreme Court has held: "[T]he right to a public trial is not absolute; rather, it must be considered in relationship to other important interests." Commonwealth v. Knight, 364 A.2d 902, 906 (1976).

In considering such other interests, a court must assess all of the circumstances to determine if they present a situation in which an exclusion order is necessary. If the court determines a necessity exists, it may then issue an exclusion order; but the exclusion order must be fashioned to effectuate protection of the important interest without unduly infringing upon the accused's right to a public trial either through its scope or duration. Id.

The Knight case is particularly instructive, as it involved a minor witness who had suffered...