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Contempt Hearing in Right to Know Lawsuit Leaves More Questions than Answers

by on September 02, 2015 6:00 AM

Only days after she filed a defamation lawsuit against Centre County, District Attorney Stacy Parks Miller was back in court on Tuesday to argue that the county should be held in contempt of court as part of the ongoing Right to Know controversy.

Although Parks Miller and her attorney Bruce Castor argue that the county purposefully violated a judge’s order, specially-presiding Huntingdon County Senior Judge Stewart Kurtz didn’t seem entirely convinced that the county had acted with any malice or ill-intent.

“It’s going to be a tough boat to row to prove a contemptuous action in this case,” Kurtz said.

But at the same time, Kurtz didn’t seem entirely convinced that the county was in the clear, repeatedly challenging claims made by Centre County’s attorney Mary Lou Maierhofer.

The judge ultimately ended the hearing without making a decision, scheduling another contempt hearing for September 30.

A Cat Chasing Its Tail

The issue at the center of the contempt dispute is based on a subtlety of the Right to Know law and the complicated legal history of Parks Miller’s lawsuit against the county.

Parks Miller is suing the county for releasing some of her phone records in response to Right to Know requests, which she argues (and Judge Kurtz agrees) are judicial records the county had no authority to release. Kurtz has issued an order dictating that the county should not respond to any more requests for records involving Parks Miller until the lawsuit is settled.

However, Centre County has still received multiple Right to Know requests for similar records. Parks Miller argues that by responding to these requests at all – even if it was to deny them – the county violated the judge’s order.

The reason Parks Miller takes such issue with the denial is because it allowed the requester to appeal the decision to the Pennsylvania Office of Open Records (OOR), which Castor said the county did purposefully to obtain an opinion more favorable to the county’s position.

“If the district attorney had been forwarded the request, there is no reason she would not comply,” Castor said. “Hiding records has never been the DA’s intent. The issue here is only that she controls her own records.”

But Maierhofer argued that this view oversimplifies the issue and ignores a crucial fact: If the county denies a Right to Know request, it can be appealed to the OOR; if the county does not respond to a request, then it is automatically denied and can be appealed to the OOR; and even if the county forwards a request to another agency like the DA’s office who then fills the request, it can still be appealed to the OOR if the requester is not satisfied that an agency other than the county responded.

“No matter what we do, we’re in a catch-22,” Maierhofer said. “…We’re a cat chasing its tail. We don’t know what the heck to do. So how can you hold the county in contempt?"

Castor is now drafting a proposed order he hopes will give the county clear direction on how to respond to Right to Know requests for records involving the DA’s office. Maierhofer, by contrast, places her hope in a pending appeal in the Pennsylvania Commonwealth Court that may clear up the confusion.

Employing Separate Counsel

Another subtle shade of legal nuance cast a shadow on Tuesday’s hearing.

Castor brought up the issue of former Penn State attorney Cynthia Baldwin, whose testimony is central to the pending criminal cases of three former university administrators accused of covering up the Jerry Sandusky child sex abuse scandal. Baldwin and the three administrators disagree as to whether Baldwin was representing them as individuals or whether she was actually representing Penn State as an institution – which has led to a messy legal fight over her role in their criminal cases.

Castor says this situation is similar to what’s happening in Centre County. Maierhofer represents the county through its insurance program, and represents various county officials in their official capacities.

However, in the civil lawsuit Parks Miller filed last Friday, many of the county officials are also being sued in their capacities as both county officials and as individuals. Castor questioned whether this would become a problem down the line, especially since the various lawsuits being waged in Centre County involve many of the same people and because Parks Miller is pushing for criminal charges against the county commissioners for their role in a forgery controversy.

“It seems to me the individual defendants need to employ separate counsel,” Kurtz said. “If I was advising [county administrator Tim Boyde] in this case, I think I would say you better talk to someone independent of the county.”

Maierhofer did not indicate if she would advise her clients to seek additional counsel.

Michael Martin Garrett is a reporter and editor for who covers local government, the courts, the arts and writes the Keeping the Faith column. He's a Penn State alumnus, a published poet and the bassist in a local indie rock band.
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