Opinion
2021-007-L
03-30-2023
LIBERTY TOWNSHIP and CEASRA v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION and TRI-COUNTY LANDFILL, Permittee
For Appellants: Lisa Johnson, Esquire, Marc T. Valentine, Esquire. For Permittee: Alan Miller, Esquire, Jake S. Oresick, Esquire, Brian Lipkin, Esquire.
For Appellants: Lisa Johnson, Esquire, Marc T. Valentine, Esquire.
For Permittee: Alan Miller, Esquire, Jake S. Oresick, Esquire, Brian Lipkin, Esquire.
OPINION AND ORDER ON MOTIONS TO RECUSE/DISQUALIFY/REASSIGN BOARD MEMBER
Bernard A. Labuskes, Jr., Board Member and Judge.
Synopsis
The Board denies a motion to recuse/disqualify a Board Member from presiding over or participating in the adjudication of the appeal because, among other things, the motion only alleges that the Board Member will be a witness in unrelated matters, and the Board Member made adverse rulings against one of the Appellants' attorneys and her clients in those unrelated matters. Involvement or actions in unrelated matters does not require recusal in this matter. There is no other indication that the Board Member will be incapable of acting with impartiality in this appeal.
OPINION
This appeal involves the issuance of a major permit modification to Tri-County Landfill ("Tri-County") by the Department of Environmental Protection (the "Department"). The permit authorizes Tri-County to operate a municipal waste landfill in Liberty Township and Pine Township, Mercer County within the boundary of an inactive landfill that was operated by Tri-County from 1950 to 1990. The appeal of the permit was filed on January 27, 2021by Liberty Township, William C. Pritchard and Lisa L. Pritchard, and Citizens Environmental Association of Slippery Rock Area, Inc. ("CEASRA"). There have been more than 160 docket entries since the appeal was filed in January 2021. The filings reflect that there have been changes in the list of appellants over the course of the last two years, such that Liberty Township and CEASRA are the only two remaining appellants (hereinafter "Appellants"). This appeal was transferred to Board Member and Judge Bernard A. Labuskes, Jr. ("Board Member Labuskes") for primary handling on February 3, 2023. The hearing on the merits is set to begin on April 5 in Pittsburgh.
The Appellants have filed what they variously refer to as a motion to disqualify or a motion to recuse Board Member Labuskes from presiding over or participating in the adjudication of this appeal. The Appellants base their motion solely on the Code of Judicial Conduct. It must be said at the outset, however, that the Code does not apply to the Environmental Hearing Board's Members and Judges. See Code of Judicial Conduct (Application, Paragraphs [1] and [2].) Nevertheless, the Board Members strive for the same level of impartiality as that which is expressed in the Code, so we will address the Appellants' concern notwithstanding the lack of any applicable legal support in their motion.
On March 30, 2023 the Appellants also filed a motion for reassignment, asking that this appeal be reassigned again to another Board Member. We do not detect any substantive new averments in the motion for reassignment that have not already been raised in the motion to recuse/disqualify. We do not see any reason to await responses and further delay the issuance of this Opinion and Order in light of the motion for reassignment. Therefore, for the same reasons that the motion to recuse/disqualify Board Member Labuskes is denied, the motion for reassignment is also denied.
The Appellants argue in their motion that Board Member Labuskes made adverse rulings, including an award of attorneys' fees, against Lisa Johnson, Esq., one of the attorneys for the Appellants, and her clients in unrelated Board appeals. They note that some of those rulings are under appeal. They do not suggest that those unrelated appeals have any connection to this appeal. They also allege that there are confidential investigations ongoing relating to Attorney Johnson's and Board Member Labuskes's actions in those unrelated appeals. They further allege that Board Member Labuskes "will be called as a witness" in those unrelated appeals and investigations.
The Department opposes the motion. It argues that if adverse rulings were a legitimate cause for recusal, such as the rulings against Attorney Johnson and her clients, no judge would be able to continue to sit. It points out that there is no possibility of Board Member Labuskes being a witness in this appeal. It argues that the motion is time barred because it was not filed at the earliest possible moment. Finally, it argues that recusal now would result in an unreasonable and unnecessary delay of the hearing. Tri-County also opposes the motion. It also argues that adverse rulings are insufficient to establish bias, that the Board Member is not a witness in this appeal, and that the motion has come too late in the proceedings.
Like the Department and Tri-County, we are left to wonder why the motion for recusal was filed as late as it was. Granting the motion would certainly result in further delay of an appeal that has now been pending for more than two years. Indeed, the permitting process for this project started in the 1990s. Upon the sudden retirement of Board Chairman Renwand, this appeal was assigned to Board Member Labuskes on February 3, 2023. The Appellants waited 41 days after the reassignment to file their motion. In the intervening period, counsel worked collaboratively with the Board's staff to amend the hearing schedule previously established by Chairman Renwand in order to accommodate preexisting schedule conflicts of Board Member Labuskes. Numerous other prehearing motions and responses have been filed. The Appellants did not raise a concern regarding recusal during any of those proceedings.
This is confirmed by the Appellants' averments in their motion for reassignment that, if they do not prevail on their motion to recuse/disqualify, they intend to seek immediate appellate review. The Appellants say in their motion for reassignment that they have filed it four business days before the hearing is set to commence because they do not want to delay the hearing schedule. Even if this case were reassigned again now to another Board Member, those Board Members have their own schedules. Earlier this month, the staff of the Board worked collaboratively with all parties to come to mutual agreement on revising the hearing schedule to accommodate the reassignment to Board Member Labuskes while still respecting the general schedule established by Chairman Renwand. It is difficult to see how there could not be a delay in the hearing if this matter were reassigned to another Board Member on the eve of trial.
In analogous situations regarding the judiciary, the Supreme Court of Pennsylvania "requires a party seeking recusal or disqualification to raise the objection at the earliest possible moment, or that party will suffer the consequence of being time barred." League of Women Voters v. Cmwlth., 179 A.3d 1080, 1086 (Pa. 2018) (quoting Lomas v. Kravitz, 170 A.3d 380, 389 (Pa. 2017)); In re Lokuta, 11 A.3d 427, 437 (Pa. 2011); Goodheart v. Casey, 565 A.2d 757, 763 (Pa. 1989) (citing Reilly by Reilly v. SEPTA, 489 A.2d 1291, 1298 (Pa. 1985)); City of Phila. v. Pien, 224 A.3d 71, 86 (Pa. Cmwlth. 2019). The "earliest possible moment" occurs "when the party knows of the facts that form the basis for a motion to recuse." League of Women Voters, 179 A.3d at 1086 (quoting Lomas, 170 A.3d at 390). In Lomas v. Kravitz, the Supreme Court held that the appellants waived their right to seek recusal by waiting 39 days after learning of the potential bias to file their motion. 170 A.3d at 391. Here, the Appellants waited 41 days.
In this matter, the Appellants' counsel was aware of all of the purported factual bases for recusal on February 3, 2023, yet the Appellants waited nearly seven weeks after the reassignment to file their motion, with the hearing to begin on April 5, 2023. We cannot say that the motion is a "calculated attempt to delay the hearing" as alleged by Tri-County and the Department, but their point that delay would in fact inevitably ensue as a result of granting their motion is well taken. There are, however, more substantial reasons for denying the motion.
First, none of the rulings and activity cited by the Appellants as the basis for their concern were taken by Board Member Labuskes individually. See, e.g., Stanley v. DEP, EHB Docket No. 2021-013-L (Opinion and Order on Motion for Sanctions in the Form of Legal Fees, June 7, 2022). All Board Members participated in and contributed to the proceedings in question, including the Opinions and Orders involved. Board Member Labuskes had primary drafting responsibility in the Board appeals, but all Board Members decided the issues following considerable deliberation.
No appeals or proceedings have involved Board Member Labuskes individually. Similarly, in their motion the Appellants allude to "confidential investigations" pertaining to these earlier proceedings. Although it would be inappropriate to get into the merits of any such investigations given confidentiality constraints, the Board is not aware of any investigations involving Board Member Labuskes individually as opposed to the entire Board acting under the direction of its Chairman. It is not clear why the Appellants have singled out Board Member Labuskes. It would obviously be impractical to recuse the entire Environmental Hearing Board.
On that note, the Adjudication of this appeal will require the participation of the full Board. It is not a given that Board Member Labuskes will be in the majority, or if he is, whether he will prepare the first draft of the Adjudication. It is not clear how or why the Appellants believe any alleged bias on the part of Board Member Labuskes would compromise the impartiality of the other Board Members. Further, the Board currently has one vacancy, and Board Chairperson Beckman is recused in this matter for entirely unrelated reasons. Recusal of Board Member Labuskes would leave only two Board Members to work on the case.
Secondly and critically, the Appellants' motion is based upon activity in entirely unrelated proceedings. There is no suggestion that Board Member Labuskes has any personal involvement in this appeal. There is no suggestion that he is likely to be called as a witness in this appeal. The principle that a judge should not preside over and be a witness in the very same proceeding simply does not apply here.
We would add that we have not been advised that Board Member and Judge Labuskes is in fact likely to be called as a witness in any unrelated matter.
Furthermore, even if the unrelated matters were relevant, we detect no evidence of bias or impartiality in the unrelated matters. More importantly, there are no grounds for believing that Board Member Labuskes harbors any bias or ill will against Liberty Township or CEASRA, let alone their attorneys. As the Department and Tri-County correctly point out, adverse rulings in other cases do not form the basis for recusal. Pien, 224 A.3d at 86 (quoting Cmwlth. v. Abu-Jamal, 720 A.2d 79, 90 (Pa. 1998)); Cmwlth. v. Birdsong, 24 A.3d 319, 331 (Pa. 2011); Slusaw v. Hoffman, 861 A.2d 269, 274 (Pa. Super. 2004).
The Appellants without explanation allude to the Board's decision to strike some filings from the docket by the parties in the unrelated cases. The implication seems to be that the Board's docketing decisions in those cases are somehow evidence of bias, presumably against Attorney Johnson or her clients in those cases. We fail to see how. Every adverse Board decision does not automatically equate to or reflect bias against the party or their attorneys. In any event, the merits of the Board's decisions regarding the management of its docket in those unrelated cases have no conceivable carryover to the instant appeal, just as a discussion of the merits of the award of legal fees or other rulings in those cases has no place here. The appellants in some of the unrelated appeals to which the Appellants here refer have exercised their right to appeal the Board's decisions and the Board will abide by any appellate ruling that may follow as it does in any other case.
We cannot endorse the practice of an attorney who has been at the receiving end of adverse rulings or docketing management having the de facto ability to recuse the Board's limited staff in every future matter involving that attorney. It is quite significant that a close examination of the Appellants' motion reveals that none of the Appellants' arguments are actually specific to this appeal; they would apply to every future appeal before the Board, or at least those assigned to Board Member Labuskes for primary handling. Neither the Appellants nor their counsel have pointed to any authority establishing the right to ask for what is in effect a lifetime recusal in any appeal involving a particular attorney because that attorney is unhappy with rulings or docket management in prior cases.
As analogous authority, we note the Supreme Court's admonition that recusal "is a matter of individual discretion or conscience and only the jurist being asked to recuse himself or herself may properly respond to such a request." Cmwlth v. Jones, 663 A.2d 142, 143 (Pa. 1995). See also Ferino v. DEP, 2001 EHB 531, 534. "There is a presumption that judges of this Commonwealth are honorable, fair and competent." DeLuca v. Mountaintop Area Joint Sanitary Auth., 234 A.3d 886, 895 (Pa. Cmwlth. 2020) (quoting Abu-Jamal, 720 A.2d at 89). Board Member Labuskes would not have accepted the reassignment from Chairman Renwand to conduct the hearing had he felt that he could not preside over the hearing with the same impartiality and fairness required of him in any appeal.
Finally, the Appellants "bear[] the burden of producing evidence establishing a conflict of interest, bias, or unfairness necessitating recusal." Ferino, 2001 EHB at 534 (quoting People United to Save Homes (PUSH) v. DEP, 1997 EHB 643, 644). The Appellants have produced no credible evidence to substantiate their claims of bias or prejudice. They have fallen well short of meeting their required burden in this case. Where, as here, no legitimate basis for recusal has been shown, we have an affirmative duty not to skirt our own assignments and responsibilities. Welch v. Board of Dirs. of Wildwood Golf Club, 918 F.Supp. 134, 138 (W.D. Pa. 1996) ("Just as a judge must disqualify himself if the motion establishes a reasonable doubt as to the judge's impartiality, a judge has an equally affirmative duty to preside in the absence of such proof."); United States v. Burger, 964 F.2d 1065, 1070 (10th Cir. 1992) ("there is as much obligation for a judge not to recuse when there is no occasion for him to do so as there is for him to do so when there is"). Accordingly, we issue the Order that follows.
ORDER
AND NOW, this 30th day of March, 2023, it is hereby ordered that the Appellants' motion for recusal/disqualification and their motion for reassignment are denied.
MICHELLE A. COLEMAN Board Member and Judge, BERNARD A. LABUSKES, JR. Board Member and Judge, SARAH L. CLARK Board Member and Judge
* Chief Judge and Chairperson Steven C. Beckman is recused and did not participate in this decision.