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Judge Now Accused of Violating First Amendment Rights in Right to Know Lawsuit

by on March 31, 2015 3:29 PM

Magisterial District Judge Kelly Gillette-Walker has accused the law firm of Shubin and McGraw of wrongfully using private information in the courtroom, but the law firm is now making accusations of its own.

Attorneys for State College lawyers Sean McGraw and Andrew Shubin now argue that Gillette-Walker's lawsuit is an attempted violation of their First Amendment right to free speech.

Shubin and McGraw -- who are being represented by Ronald Barber of the Strassburger, McKenna, Gutnick & Gefsky law firm and attorneys from the American Civil Liberties Union of Pennsylvania -- ask the Centre County Court of Common Pleas to dismiss Gillette-Walker's suit.

Gillette-Walker filed her suit in that same court earlier this month, naming the Centre County government and the Shubin and McGraw firm as defendants. She argues that Centre County illegally provided her personal phone records to the law firm in response to Right to Know requests filed with the county.

Some defense attorneys with cases in Centre County court have used records of text messages between judges and prosecutors to allege bias and preferential treatment in recent months.

Gillette-Walker claims the records released involved her personal cell phone, violated her right to privacy, and that the Right to Know law clearly prohibits government agencies from releasing "all or part" of a person's phone number. She asks the court to declare that the county was wrong to release the records. She also wants the court to prevent similar releases from happening in the future, and to force Shubin and McGraw to destroy all copies of any information they might have.

But in court documents filed Tuesday, attorneys for Shubin and McGraw attack her "wafer-thin claim of invasion of privacy."

The filing argues that because Gillette-Walker is an elected public official she has much less of a right to privacy than an ordinary citizen. The filing also argues that the records of text messages between judges and prosecutors are "indisputably a matter of public significance and concern," which they say outweighs any privacy concerns.

Shubin and McGraw's attorneys also argue that forcing them to destroy the records already received (and filed as exhibits to public court documents) or otherwise refrain from using the records in court would count as "prior restraint," and a violation of their First Amendment rights.

The two defense attorneys also argue that they shouldn't be defendants in the law suit in the first place. Even if the county was wrong to release the records, they claim that doesn't mean it was illegal to request them.

"[Gillette-Walker] has alleged that McGraw and Shubin had 'no right to receive the records' and 'no right to use or disclose any of the information'... but that is different from alleging that the receipt of the information, or thereafter its disclosure, was illegal," the filing reads. "She has pointed to no law making their conduct illegal, nor can she."

Centre County Common Pleas Judge Jonathan Grine  has also filed a lawsuit against the county over similar allegations involving Right to Know requests. Because both lawsuits involve many of the same parties and concerns, both lawsuits are scheduled for a hearing on Thursday morning in the Centre County Courthouse annex.

Centre County District Attorney Stacy Parks Miller -- whose phone records were also released in response to Right to Know requests -- is also suing the county for alleged violations of Pennsylvania's Right to Know law. That lawsuit is not part of the hearing on Thursday, but Parks Miller and Assistant District Attorney Mark Smith are both currently attempting to quash subpoenas that would require them to testify on Thursday.

On Tuesday, attorneys for Parks Miller and Smith filed a motion in response to subpoenas issued by Centre County in Grine's lawsuit. They argue that the subpoenas are "improper and unenforceable," and that the county has not specified why their testimony or presence is required at the hearing.

"It would be both unreasonable and inappropriate for the District Attorney and the First Assistant District Attorney to be sitting by idly, potentially waiting to testify, when their office is across the street and both could potentially be made available at a limited, but set, time on virtually a moment's notice."

Parks Miller has had a number of unrelated disputes with the county government in recent months. After allegations surfaced in January that she forged a judge's signature on a fake court order, Parks Miller has denied the allegations and argued she was subjected to an illegal and politically-motivated investigation involving the Centre County Commissioners and the Bellefonte police department. The Pennsylvania Office of the Attorney General has since taken over the investigation of the forgery allegations.

 

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Michael Martin Garrett is a reporter and editor for StateCollege.com 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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