Skip to comments.Judge Nealon admits 'lapse of ethical judgment'
Posted on 08/18/2011 6:49:54 PM PDT by Born Conservative
Lackawanna County Judge Terrence R. Nealon admitted Wednesday to committing "a lapse of ethical judgment" seven years ago by privately advising local Democrats on how to oppose a county voting plan in a case over which he was asked to rule.
Judge Nealon, a lifelong Democrat, admitted his lapse after being shown a copy of an email he sent to prominent Democrats on how to oppose the plan. The email was obtained from a confidential source by The Times-Tribune, and the judge confirmed he wrote it.
Read Judge Terrence R. Nealon's email HERE (.pdf)
Judge Nealon had been a contender for a federal judgeship but said he is no longer in the running. He said he did not reapply for the position this year for a variety of reasons he declined to specify, and would not specifically say it was because of the ethical issue.
The Times-Tribune source contends the email was turned over to the American Bar Association, which was charged with reviewing the federal candidates' qualifications. Two newspaper sources said they and others have been aware of the email for months, if not years.
"I went about it the wrong way. There's no question about that," Judge Nealon said. "I was concerned that there would just be no position, no (opposition) argument, no issue raised by what would be the other side of this issue."
Attorney Anthony C. Lomma, the lawyer for the county Board of Elections that put forth the consolidation proposal, said he was "shocked" the judge sent the email, but declined further comment.
County President Judge Thomas Munley said Judge Nealon told him about the email Wednesday and he accepts that it was just "a momentary ethical lapse." He plans no disciplinary action and is unconcerned about the judge's ability to remain fair and impartial is compromised, Judge Munley said.
"Judge Nealon has had a distinguished judicial career. He is a distinguished judge," Judge Munley said. "He has my full confidence. He's a man of character. I know the judge had a momentary ethical lapse."
Judicial ethics experts said the email clearly puts Judge Nealon in violation of rules governing judges.
Seeking fewer districts
The matter centers on the Board of Elections' 2004 plan to consolidate what was then 239 voting districts. The judge's Dec. 2, 2004, email was sent about a month after the board asked the court for permission to consolidate or change the locations of 139 voting districts mainly for reasons of efficiency.
In an interview with The Times-Tribune, Judge Nealon confirmed he sent the email to former Democratic County Commissioner Joseph Corcoran and attorney John P. O'Boyle, who was the solicitor to minority Democratic Commissioner Randy Castellani at the time.
The Board of Elections majority was Republican County Commissioners Robert C. Cordaro and A.J. Munchak, who had knocked Mr. Corcoran out of office in the 2003 election.
Judge Nealon said his goal was to ensure he had a clear record of what was happening, and he believed objections to the plan could help accomplish that. He was concerned residents' ability to vote could be compromised, he said.
The judge's email reminds the two men he provided them with copies of the consolidation plan "several weeks ago." The judge argues the Board of Elections was trying to consolidate voting districts and change the location of polling places to "make it more difficult for the affected people to vote."
He urges the men to "contact and mobilize people in the affected districts" to file written objections with the court and attend an upcoming court hearing on the plan.
"Their objections should explain why the change will (present) a hardship for voters and not be in the public interest," Judge Nealon wrote.
Then, the judge goes further, urging Mr. Corcoran to look deeper into the proposed changes.
"You should also check the 2003 commissioners' race vote tally by ward and district to see if (1) they're trying to consolidate those districts that they lost and you won and/or (2) they're not trying to consolidate similarly situated districts (i.e., districts with comparable voter registration numbers) that they won and you lost," he wrote.
"If so, the objectors could argue rather persuasively that the proposed changes are politically motivated in that they're trying to make it more difficult for their opponents to vote against them or other Republicans."
The email urges the men to "get together with Notarianni and others and move on this fast because if no objections are filed within the next 13 days, it will be deemed unopposed by anyone."
Jerry Notarianni was chairman of the county Democratic Party at the time.
"This is a political winner for you," the judge wrote. "No one likes to have their polling place changed and you could gain a lot of grass roots support in the affected districts if you mobilize objectors to protect those voters' rights."
The judge also tells the men to keep it a secret.
"But whatever you do, don't tell anyone that this petition has been assigned to me," he wrote. "Lomma and Hardaway think it's going to be heard by a 3 judge panel but (court administrator) Billy Murray only assigned it to me. But I'm the only one who knows that and we don't want to educate the other side on this and have them demand a 3 judge panel instead."
Hardaway is Cathy Hardaway, the county director of voter education at the time.
That line is followed by one final sentence: "GET TO WORK!!"
Motive behind email
Judge Nealon said on Wednesday that the case was always assigned to him and was never intended for a three-judge panel.
He wrote the final part of the email to create urgency in Mr. O'Boyle and Mr. Corcoran to act, he said.
"The last part here is just made up," he said. "It was never going to be assigned to a three-judge panel. I mean, the other side knew who it was assigned to. They would have gotten the notice from the court administrator long in advance of that."
Efforts to reach Mr. Corcoran and Mr. O'Boyle were unsuccessful.
Judge Nealon said he emailed the two men because they had asked him if he could provide copies of the plan at "some kind of a public function" weeks earlier. At the public function, the judge said he asked Mr. Corcoran if he would be involved in objecting to the plan. If so, because they are friends, he would have had to recuse himself, Judge Nealon said. Mr. Corcoran, a year after losing his re-election bid, seemed uninterested in pursuing the matter, and Mr. O'Boyle said he could not because as minority solicitor he would have been in the position of objecting to a county plan while working for the county, Judge Nealon said.
"And they both indicated that they were not getting involved but that they wanted to look at it and see if certain districts were being unfairly targeted for consolidation on partisan or political grounds rather than the legitimate legal basis," he said.
By the time he sent the email, no one had objected to the plan and he was becoming concerned that the voting district changes might make it harder on elderly people to vote. A copy of the plan on the county website contained the basic petition for consolidation but lacked exhibits that outlined specific voting district changes, he said.
"When I had clicked on that day, and it wasn't there, as you can tell from the email, I became suspicious that perhaps that was not wholly inadvertent and maybe people clicking on would not realize â¦ that their districts were going to be affected," Judge Nealon said. "I was concerned that a proper record wouldn't be made for me to decide these issues. I was concerned that we would go out there and it would essentially be unopposed. When I say unopposed, it would be 'Here's the plan, there's no objection, rubber-stamp it.'â''
So he emailed the only two men who had asked him about it, Mr. Corcoran and Mr. O'Boyle, who had obtained copies from his office, he said.
"So I knew that they had it and that no one had filed objections, so in a lapse of ethical judgment on my part, I sent them this email encouraging them to contact the appropriate" people, he said.
Asked if he was giving legal advice, Judge Nealon replied, "Well, I mean I was telling them they had to file written legal objections and attend the hearing and explain why it would present a hardship and, to be honest with you, I was using strong language, quite candidly, because I knew that they had gotten this several weeks or a month before and nothing had happened."
That is also why he used the language about the issue being "a political winner," he said.
There were two major objections to the plan. Two Jefferson Twp. supervisors did not want the township's single voting district split in two. A Scranton committeeman also objected that only Democratic districts were targeted for consolidation. Election officials agreed to keep the township district intact and argued successfully that they did not target Democratic districts.
In the end, despite pushing for opposition, the judge approved the consolidation plan almost exactly as it was presented and with only minor conditions. The county went from 239 to 163 voting districts. In several precincts, the judge required an additional voting machine. He also required the board to issue new voter registration cards to all voters in affected districts to notify them of changes and took control of the appointment of election judges and inspectors in those districts.
"And I would submit to you that that supports my statement I've made to you (that) my goal was to have a full and complete record developed before me so that I could decide this issue correctly," he said. "It wasn't to have somebody come in and raise any type of objection so that I could deny the plan or disapprove of it in any way ... Here, I obviously felt I could still be fair and impartial, and I was fair and impartial and decided the case ... in favor of the petitioners."
The judge said he has not been contacted by the Judicial Conduct Board of Pennsylvania, which investigates complaints against judges.
Attorney Joseph A. Massa Jr., chief counsel for the Judicial Conduct Board, said the state Constitution forbids him from confirming or denying whether the board has received a complaint about a judge or whether it is investigating a judge.
Judge Nealon denied ever doing anything similar before or since, and said he does not know whether publicity about the email will hinder his ability to act as a judge.
"I would hope that those lawyers and litigants that appear before me with some regularity would regard this as an isolated incident and ethical transgression on my part and would hopefully still feel confident in my ability as a judge," he said.
His role in guiding the case outside the courtroom raises questions about whether Judge Nealon violated the canons of the state Code of Judicial Conduct.
Canon 1 of the state rules requires judges to preserve "the integrity and independence of the judiciary." Canon 2 says judges "should conduct themselves at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary" and "should not allow their family, social or other relationships to influence their judicial conduct or judgment." Canon 3 says they "should be unswayed by partisan interests, public clamor or fear of criticism." Canon 3 also says they should disqualify themselves from hearing a case "in which their impartiality might reasonably be questioned, including â¦ instances where (a) they have a personal bias or prejudice concerning a party â¦"
Canon 7 says they "should not engage in any other political activity except on behalf of measures to improve the law, the legal system or the administration of justice."
Legal ethics experts
Several experts in legal ethics to whom the situation was described without naming Judge Nealon said he violated ethical rules.
"Actually, it's pretty hard to believe," said John M. Burkoff, a professor of law at the University of Pittsburgh with an expertise in legal ethics. "The first thing that is absolutely clear is that under the judicial canons of ethics a judge has to be nonpartisan and neutral."
Mr. Burkoff cited canon 2's command to act with integrity and impartiality and canon 3's admonition to be "unswayed by partisan interests."
To suggest arguments in a case over which a judge is presiding is "inappropriate, if not in actuality, then certainly in terms of appearance," Mr. Burkoff said. The email goes "beyond simply making sure both sides are represented," he said.
Arthur D. Hellman, also a law professor at the University of Pittsburgh, and a leading national expert in judicial ethics, said the judge's behavior is "almost incredible." Mr. Hellman said the judge could have avoided any controversy by simply publicly announcing that the consolidation petition was filed and inviting people to comment or formally object to it.
"What you're describing is such a patent violating of judicial ethics," Mr. Hellman said. "If he did this, it violates so many basic rules ... This isn't in the debatable realm. This is core misconduct if he did this."
Attorney Philip Feldman, certified expert in legal malpractice in California, said the judge urging the recipients to keep the assignment of the case to him a secret alone warrants discipline because it is constitutes serious misconduct.
"Based on those lines and the foundation leading to it, it seems more probable than not that the judge is begging for removal from office or (an) exceptionally strong reprimand," Mr. Feldman said. "Wow, that's a killer."
Geoffrey C. Hazard Jr., professor emeritus of law at the University of Pennsylvania and another leading national expert in legal ethics, called the judge's behavior "seriously improper" in an email.
"If he thought the Democrats should have some kind of notice he should have advised the parties to give such notice," Mr. Hazard said.
Ironically, as Mrs. Hardaway testified at the hearing, the Board of Elections did send notice of the proposed changes to local political parties.
Judge Nealon, county Judge Carmen D. Minora and attorney Robert D. Mariani were the three names forwarded last summer to President Barack Obama by Sens. Bob Casey and Arlen Specter as potential nominees for judgeships in the Middle District of Pennsylvania.
Mr. Obama nominated only Mr. Mariani, once in December and again in January after a new Senate took office.
After the new Senate was sworn in, Sen. Pat Toomey, a Republican, replaced Mr. Specter, a Democrat. Mr. Toomey signed off on Mr. Mariani, but he and Mr. Casey have yet to agree on the other two nominees. They sought a new round of applications, and the selection process is ongoing.
April Mellody, a spokeswoman for Mr. Casey, said the senator did not know about the ethical lapse when Judge Nealon's name was sent to the White House. She said he was unavailable for comment.
"The Senator makes every effort to recommend the best qualified candidates to the federal bench," Ms. Mellody wrote in an email. "He has a vigorous vetting process and is assisted by a panel consisting of leading members of the bar and other respected Pennsylvania citizens."
More judicial corruption from NEPA.
Yayaya. Tip of the iceberg.
Democrats are permitted “a momentary ethical lapse” from time to time.
Lackawanna County adjoins Luzerne County, home of the recently convicted felon ex-judge Mark Ciavarella of “Kids for Cash” fame.
Seven years after the harm is done, the judge is just awfully sorry.
...seven years ago by privately advising local Democrats on how to oppose a county voting plan in a case over which he was asked to rule. Judge Nealon, a lifelong Democrat, admitted his lapse after being shown a copy of an email he sent to prominent Democrats on how to oppose the plan.
This was no lack of judgement, it was a pure unethical and deliberate act by a died in the wool damocrat. He is totally unqualified to judge anything and should be removed
Yes more Demoncrats. Though “Republican County Commissioners Robert C. Cordaro and A.J. Munchak” were both just convicted of corruption as well.
Trivia: Munchak’s nephew is the head coach of the Tennessee Titans.