190 A.3d 560 (Pa. 2018), 75 WM 2018, In re Fortieth Statewide Investigating Grand Jury

Docket Nº:75 WM 2018, 77 WM 2018, 78 WM 2018, 79 WM 2018, 80 WM 2018, 81 WM 2018, 82 WM 2018, 84 WM 2018, 86 WM 2018, 87 WM 2018, 88 WM 2018, 89 WM 2018, 106 WM 2018
Citation:190 A.3d 560
Opinion Judge:SAYLOR, CHIEF JUSTICE
Party Name:IN RE: FORTIETH STATEWIDE INVESTIGATING GRAND JURY
Attorney:Eli Mordecai Segal, Michael Alyn Schwartz, Pepper Hamilton LLP, PA, for Petitioner. Bradley Adam Winnick, Dauphin County Public Defender’s Office, Carolyn Honoria Kendall, Ronald H. Levine, Abraham John Rein, Post & Schell PC, for Pennsylvania Association of Criminal Defense Lawyers, Petitioner A...
Judge Panel:SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ. Justices Todd, Donohue, Dougherty, Wecht and Mundy join the opinion. Justice Baer joins Parts I, II and IV-VIII of the majority opinion, concurs in the result as to Part III and files a concurring opinion. JUSTICE BAER, Concurring
Case Date:July 27, 2018
Court:Supreme Court of Pennsylvania
 
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190 A.3d 560 (Pa. 2018)

IN RE: FORTIETH STATEWIDE INVESTIGATING GRAND JURY

Nos. 75 WM 2018, 77 WM 2018, 78 WM 2018, 79 WM 2018, 80 WM 2018, 81 WM 2018, 82 WM 2018, 84 WM 2018, 86 WM 2018, 87 WM 2018, 88 WM 2018, 89 WM 2018, 106 WM 2018

Supreme Court of Pennsylvania

July 27, 2018

Page 561

Allegheny County Court of Common Pleas, Allegheny County Criminal Division, CP-02-MD-571-2016, Norman A. Krumenacker III, Judge.

Eli Mordecai Segal, Michael Alyn Schwartz, Pepper Hamilton LLP, PA, for Petitioner.

Bradley Adam Winnick, Dauphin County Public Defender’s Office, Carolyn Honoria Kendall, Ronald H. Levine, Abraham John Rein, Post & Schell PC, for Pennsylvania Association of Criminal Defense Lawyers, Petitioner Amicus Curiae.

James M. Becker, Litigation and Alternative Dispute Resolution practice group, Buchanan Ingersoll, et al, for Petitioner 116, Respondent.

David John Berardinelli, DeForest Koscelnik Yokitis & Berardinelli, Deforest Koscelnik, et al., Respondent.

Laurel Brandstetter, Schnader Harrison Segal & Lewis LLP, for Petitioner 115, Respondent.

Jennifer Anne Buck, PA Office of Attorney General, Dye, Daniel Jacob, Pennsylvania Office of the Attorney General, Law Enforcement, Pennsylvania, PA Ofc. of Attorney General, for Office of Attorney General, Respondent.

Christopher D. Carusone, Cohen Seglias Pallas Greenhall & Furman PC, Cohen Seglias Pallas, et al., for Petitioner 104, Respondent.

Michael Anthony Comber, Farrell & Reisinger, for Petitioner 109, Respondent.

Justin Clint Danilewitz, Christopher R. Hall, Jessica Lauren Meller, Saul Ewing Arnstein & Lehr LLP, John Albert Marty III, litigation, Saul Ewing Arnstein & Lehr LLP, for Petitioner 100, Respondent.

Patrick Joseph Egan, Fox Rothschild LLP, for Petitioner 114, Respondent.

Efrem M. Grail, Brian Claydon Bevan, The Grail Law Firm, for Petitioner 110, Respondent.

Andrew Hailstone, Kreder Brooks Hailstone LLP, for Petitioner 102, Respondent.

Glenn Anthony Parno, Capozzi Adler, P.C., for Petitioner 103, Respondent.

Brian Paul Platt, Abom & Kutulakis, L.L.P., Abom & Kutulakis, for Petitioner 127, Respondent.

Marc S. Raspanti, Alexander Michael Owens, Kevin E. Raphael, Pietragallo Gordon Alfano Bosick & Raspanti, LLP, Pietragallo Gordon et al., for Petitioner 118, Respondent.

Stephen S. Stallings, Law Offices of Stephen S. Stallings, for Petitioner 107, Respondent.

Paul H. Titus, Schnader Harrison Segal & Lewis LLP, Schnader Harrison et al., for Petitioner 117, Respondent.

Maura L. Burke, Fox Rothschild LLP, for Petitioner 114, Respondent.

Marci A. Hamilton, for Child USA and Bishopaccountability, Respondent Amicus Curiae.

Charles Lyman Becker, David Kehm Inscho, Thomas R. Kline, Ruxandra Maniu Laidacker, Appeals and Litigation Department, City of Philadelphia Law Department, Kline & Specter PC, for Frey, Todd, Intervenor.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

SAYLOR, CHIEF JUSTICE

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Before the Court are numerous petitions for review challenging the public release of Report 1 of the 40th Statewide Investigating Grand Jury, insofar as the report discloses findings of criminal and/or morally reprehensible conduct on the part of named petitioner-appellants. These individuals contend that the grand jury’s findings are not supported by a preponderance of the evidence and are false or misleading. Additionally, it is their position that they were denied due process of law, and that the release of the findings to the public -- under the authority of a state-sanctioned, judicially approved grand jury -- would impair their reputations in violation of their fundamental constitutional rights.

As the litigation has progressed, this Court has found it necessary to take

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measures to protect the identities of the petitioner-appellants, at least until their constitutional challenges have been finally resolved. Accordingly, we have issued a series of orders that reflect our intentions in this regard.

The controversy remains at an interim stage. Presently, however, the Court has determined that large portions of the grand jury’s report can be released to the public, without compromising the petitioner-appellants’ constitutional rights, as long as sufficient measures are taken to continue to protect their identities during the remaining process of judicial review. Accordingly, in the Order attendant to this opinion, set forth at Part VIII, we have provided that an interim version of the grand jury report will be released, containing temporary redactions solely to protect the identities of those who have lodged challenges before us, pending further order of this Court.

In the process of determining that an interim report should be released, the Court has considered and resolved several interrelated issues presented in common legal arguments advanced by the petitioner-appellants across the appeals pending at most of the above dockets. Our intent is to facilitate the publication -- as expeditiously as possible -- of as full a final report as may be released consistent with the protection of the petitioner-appellants’ fundamental rights secured by the Pennsylvania Constitution.

I. Background

The 40th Statewide Investigating Grand Jury was convened in 2016 under the Investigating Grand Jury Act.1 The Pennsylvania Attorney General initiated confidential grand jury proceedings to investigate allegations of child sexual abuse by individuals associated with six of the eight Pennsylvania dioceses of the Roman Catholic Church, failure to make mandatory reports, acts endangering the welfare of children, and obstruction of justice by Church officials, community leaders, and/or public officials. See, e.g., In re 40th Statewide Investigating Grand Jury, No. 571 M.D. 2016, slip op. at 9 (C.P. Allegheny June 5, 2018). As required by the Pennsylvania General Assembly, these proceedings were conducted under the umbrella of secrecy pertaining to investigating grand juries, subject to the discretion of the supervising judge to permit the public release of information. See 42 Pa.C.S. § 4549(b).

Prior to the expiration of its term, the 40th Statewide Investigating Grand Jury submitted a report of the above investigation to its supervising judge, the Honorable Norman A. Krumenacker, III. See 42 Pa.C.S. § 4552. Significantly, the report is not generally couched in conventional "investigatory" terms, such as by allusion to the character and quality of the evidence reviewed according to the application of a probable cause standard. Rather, the introductory passages of the report pronounce that the grand jury will identify over three hundred "predator priests" by name and describe their conduct in terms of "what they did -- both the sex offenders and those who concealed them[,] ... shin[ing] a light on their conduct, because that is what the victims deserve." Report 1, at 2. The balance of the report extensively furnishes detailed elaborations condemning the conduct of the alleged predators and those within the Church hierarchy who may

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have facilitated the abuses and/or failed to intervene.2

It is important to observe, early on, that the manner in which the grand jury approached its report -- i.e., finding facts and declaring that named individuals actually perpetrated abhorrent acts -- is central to the legal assessment of the many constitutional challenges to the public release of the report, as discussed at length in Parts II and III, below. In this regard, targeted condemnation of named individuals is not inherent in the production of a grand jury report, although reports sometimes have been used in this fashion, and plainly the grand jurors believed that it was essential to do so here. Nevertheless, grand jury reports of this sort foster the most substantial controversies, because they amplify the tension between the grand jury’s reporting function and the constitutional rights of the individuals who are impugned in the report. See, e.g., Petition of Davis, 257 So.2d 884, 887 (Miss. 1972) (depicting a critical grand jury report as subjecting an individual to "a quasi official accusation of misconduct resulting from secret ex parte proceedings in which there is no opportunity available for presenting a formal defense"); see also infra Part II.

The grand jury report in issue is denominated "Report 1," and its submission triggered a statutory procedure for review and publication. By law, the supervising judge was required to examine the report and the confidential record of the proceedings and to issue an order accepting and filing the report as a matter of public record "only if the report is based upon facts received in the course of an...

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