In re Fortieth Statewide Investigating Grand Jury

• Decision Date: 03 December 2018
• Docket Number: No. 75, 77-82, 84, 86-87, 89 WM 2018,75, 77-82, 84, 86-87, 89 WM 2018
• Citation: 197 A.3d 712
• Parties: IN RE: FORTIETH STATEWIDE INVESTIGATING GRAND JURY
• Court: Pennsylvania Supreme Court

197 A.3d 712

IN RE: FORTIETH STATEWIDE INVESTIGATING GRAND JURY

No. 75, 77-82, 84, 86-87, 89 WM 2018

Supreme Court of Pennsylvania.

Argued: September 26, 2018

Decided: December 3, 2018

Justin Clint Danilewitz, Esq., Christopher R. Hall, Esq., Jessica Lauren Meller, Esq. Saul Ewing Arnstein & Lehr LLP, for E.R.L.

Glenn Anthony Parno, Esq., Capozzi Adler, P.C., for M.L.

Christopher D. Carusone, Esq., for D.D, J.S. and L.B.

Stephen S. Stallings, Esq., Law Offices of Stephen S. Stallings, for J.M. and T.K.

Michael Anthony Comber, Esq., Farrell & Reisinger, for L.R.O.

Brian Claydon Bevan, Esq., Efrem M. Grail, Esq., The Grail Law Firm, for WRT and A.F.

Maura L. Burke, Esq., Patrick Joseph Egan, Esq., Fox Rothschild LLP, for J.L.

James Patrick Barker, Esq., Ronald Eisenberg, Esq., Jennifer Anne Buck, Esq., Daniel Jacob Dye, Esq., Joshua D. Shapiro, Esq., for Pennsylvania Office of the Attorney General.

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

OPINION

JUSTICE TODD

In this opinion, we consider the question left unanswered by our opinion of July 27, 2018 in these matters, In re: 40th Investigating Grand Jury , ––– Pa. ––––, 190 A.3d 560, 563 (2018) (" Grand Jury I "). Specifically, we address what, if any, due process remedy is presently available to Petitioners, who are former and current priests in various Catholic Dioceses throughout Pennsylvania specifically condemned in Report 1 of the 40th Investigating Grand Jury ("Report 1") as "predator priests," to secure their constitutionally guaranteed right to reputation.¹ Pa. Const. art. I, § 1. For the reasons that follow, we conclude that we may not employ any of the remedies offered by the parties, and, thus, that we must make permanent the redaction of Petitioners' identifying information from Report 1, which we previously ordered as an interim measure, as this is the only viable due process remedy we may now afford to Petitioners to protect their constitutional rights to reputation.

I. Background

In our prior opinion authored by Chief Justice Saylor, we stressed that an individual's right to his or her personal reputation was regarded by the framers of our organic charter as a fundamental individual human right — one of the "inherent rights of mankind." Grand Jury I, 190 A.3d at 573.² For that reason, throughout our Commonwealth's history, it has been accorded the same exalted status as other basic individual human rights, such as freedom of speech, freedom of assembly, and freedom of the press. Thus, as with all legal proceedings which affect fundamental individual rights, the judicial branch serves a critical role in guarding against unjustified diminution of due process protections for individuals whose right of reputation might be impugned.

We recognized that, in the context of grand jury proceedings under the Investigating Grand Jury Act ("Act"),³ a final pronouncement of that body in the nature of Report 1, wherein the grand jury found that named individuals perpetrated heinous criminal acts, but for which no future criminal proceedings can likely be brought, presents a substantial risk of impairment of those individuals' right to their reputation. We perceived the gravity of this risk as arising out of the fact that a report such as Report 1 "will be seen as carrying the weight of governmental and judicial authority," and the grand jury is regarded as "embodying the voice of the community" with respect to its specific findings. Grand Jury I, 190 A.3d at 573. Consequently, as the content of Report 1 is condemnatory of Petitioners, we concluded that principles of fundamental fairness demanded enhanced procedural protections be afforded Petitioners in order to safeguard their right to reputation.

We then proceeded to evaluate whether two procedures statutorily enumerated in the Act provide individuals in Petitioners' situation with adequate due process protections for their reputational rights, and we ultimately concluded that they did not. We found the first procedure — the discretionary right of the supervising judge to allow named but nonindicted individuals to submit a written response to the report conferred by 42 Pa.C.S. § 4552(e)⁴ — to be inadequate, given that such a response would be hearsay, and, because of the voluminous size and scope of Report 1, there is a likelihood that, to a reader, the response would pale in significance to the overall report. Moreover, because the report contains numerous allegations involving the reprehensible behavior of a multiplicity of individuals, we deemed the cumulative effect of those allegations as likely to inflame a reader's ire, and, thus, impede his or her capacity to evaluate the credibility of an individual's response.

We also determined that the second procedure available under the Act — its requirement, pursuant to 42 Pa.C.S. § 4552(b),⁵ that the supervising judge examine the report and determine if it was based on facts derived from the grand jury investigation and is supported by a preponderance of the evidence — provided insufficient due process protections to individuals named in the report. We found that such a preponderance-of-the-evidence standard was "best suited to adversarial proceedings where competing litigants present evidence to be weighed by a factfinder." Id. at 574. We noted that a grand jury proceeding is not adversarial in nature, inasmuch as the Commonwealth controls the entirety of the process through which it, and only it, presents evidence, some of which, such as hearsay, may not be introduced in a traditional adversarial proceeding such as a trial. Moreover, such evidence is not subject to meaningful testing before the grand jury, through either cross-examination or the presentation of rebuttal evidence. Inasmuch as this review process by the supervising judge does not give named individuals an opportunity to respond to the grand jury's conclusions in "a meaningful way," we concluded it provided inadequate due process protection for Petitioners. Id. at 575.

Given that there were divergent views among the Justices of this Court as to what remedy, if any, could safeguard Petitioners' due process rights, our Court allowed publication of Report 1, but also ordered the temporary redaction of Petitioners' names and other identifying information from the report in order to protect their right to reputation, pending oral argument before our Court, and disposition of the remedy question.⁶ In so doing, we explained that our Court has previously employed such an excisional remedy for an individual's identifying information, where an individual's right to reputation was imperiled by the outcome of a legal proceeding in which there was judicial involvement. See id. at 577 (citing Carlacci v. Mazaleski , 568 Pa. 471, 798 A.2d 186 (2002) ).⁷ We also directed additional briefing specifically focused on the question of remedy. A copy of Report 1 with Petitioners' names and other identifying information redacted ("Interim Report 1") was released on August 14, 2018, and our Court held oral argument on the remedy issue on September 26, 2018.⁸

II. Arguments of the Parties

We note, initially, that, despite our Court's request, neither party has directly addressed the extent and source of our Court's authority to fashion a judicial remedy in this situation. Petitioners presently argue that, in determining what procedural safeguards are appropriate in this instance, the three-part test derived from the United States Supreme Court's decision in Mathews v. Eldridge , 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and recently utilized by our Court in Bundy v. Wetzel , ––– Pa. ––––, 184 A.3d 551 (2018), provides the general relevant guiding framework. These cases establish that the amount of process which is due in a particular case is determined by application of a test which considers three factors: "(1) the private interest affected by the governmental action; (2) the risk of an erroneous deprivation together with the value of additional or substitute safeguards; and (3) the state interest involved, including the administrative burden the additional or substitute procedural requirements would impose on the state." Id. at 557.

Regarding the first element of the Matthews / Bundy test, Petitioners underscore that their interest in their reputation is of the highest order, and, thus, worthy of maximal procedural protection against wrongful impairment, at least as rigorous as that afforded other interests in life or property. Petitioners characterize the risk of an erroneous deprivation of this interest, as "not just high, but certain." Petitioners' Supplemental Brief at 8. In support of this claim, Petitioners cite to certain asserted factual errors in Report 1, such as an alleged confrontation of one of the Petitioners by a victim of claimed abuse when, in fact, the Petitioner had died almost a decade earlier, and they highlight the fact that other Petitioners named in the report would have been children at the time they allegedly abused victims, and, hence, could not have been ordained priests. Petitioners aver that, had they been able to offer evidence to the grand jury, these errors could have been avoided. Petitioners note that, even if the matter is remanded to a different supervisory judge, this would not completely cure the mistakes, as, while clearly erroneous material can be excised from the report, factual evidence that creates false and misleading impressions cannot be cured by a judge, given that he or she cannot add material to the record or the report. Petitioners seek to raise these matters before the grand jury itself and to the supervising judge by presenting to both what they characterize as rebuttal and exculpatory evidence.

Petitioners perceive the administrative burden of providing additional due process as negligible, particularly when weighed against the fact that the Commonwealth itself has a compelling interest in safeguarding the grand jury process and ensuring that it...