In re Fortieth Statewide Investigating Grand Jury

• Citation: 191 A.3d 750
• Decision Date: 21 August 2018
• Docket Number: No. 45 WM 2017,45 WM 2017
• Parties: IN RE: FORTIETH STATEWIDE INVESTIGATING GRAND JURY Appeal of: Diocese of Harrisburg and Diocese of Greensburg
• Court: United States State Supreme Court of Pennsylvania

191 A.3d 750

IN RE: FORTIETH STATEWIDE INVESTIGATING GRAND JURY

Appeal of: Diocese of Harrisburg and Diocese of Greensburg

No. 45 WM 2017

Supreme Court of Pennsylvania.

Argued: May 15, 2018

Decided: August 21, 2018

Arthur T. Donato Jr., Esq., Law Offices of Arthur Thomas Donato, Jr., Donna Ann Walsh, Esq., Myers, Brier & Kelly, L.L.P., Robert Eugene Welsh Jr., Esq., Welsh & Recker, P.C., Patrick Aloysius Casey, Esq., Bradley Adam Winnick, Esq., for Pennsylvania Association of Criminal Defense Lawyers, Amicus Curiae.

Mark Edward Seiberling, Esq., Joshua John Voss, Esq., Kleinbard LLC, Matthew Hermann Haverstick, Esq., for Diocese of Harrisburg and Diocese of Greensburg, for Petitioners.

James Patrick Barker, Esq., for Commonwealth of Pennsylvania, Respondent.

Jennifer Anne Buck, Esq., Daniel Jacob Dye, Esq., for Office of Attorney General, Respondent.

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

Chief Justice Saylor delivers the Opinion of the Court, and Justice Baer also speaks for the Court, by way of concurrence.

OPINION

CHIEF JUSTICE SAYLOR

This appeal concerns a challenge to the practice of requiring private attorneys who may be privy to confidential information related to a grand jury investigation to commit to maintaining the secrecy of all information they may acquire regarding the grand jury.

The case involves the 40th Statewide Investigating Grand Jury, which was convened in 2016 per the Investigating Grand Jury Act.¹ As relevant here, this statutory regime limits the ability of participants in grand jury proceedings, other than witnesses, to disclose matters occurring before the grand jury. See 42 Pa.C.S. § 4549(b). In the first instance, the enactment's Section 4549(b) authorizes disclosure of such matters generally to "attorneys for the Commonwealth" for use in the performance of their duties. Id. Additionally, the attorneys for the Commonwealth, with the approval of the supervising judge, may reveal matters occurring before the grand jury to law enforcement or investigating agencies. Id. "Otherwise," the ensuing provisions admonish, "a juror, attorney , interpreter, stenographer, operator of a recording device, or any typist who transcribes recorded testimony may disclose matters occurring before the grand jury only when so directed by the court. " Id. (emphasis added). Section 4549(b) proceeds to require that "[a]ll such persons shall be sworn to secrecy," on pain of contempt for violations. Id.

Under the authority of the 40th Statewide Investigating Grand Jury, subpoenas requiring the production of documents were recently issued to the Dioceses of Harrisburg and Greensburg ("Appellants" or the "Dioceses"). Their counsel requested a copy of the notice of submission that the Office of the Attorney General (the "OAG") had provided to the supervising judge, the Honorable Norman A. Krumenacker, III. See generally 42 Pa.C.S. § 4550 (delineating the notice-based procedure for the submission of an investigation to a grand jury).

The supervising judge replied that he would furnish a copy of this notice to counsel, but that counsel first would be required to sign and submit an entry-of-appearance form, which included the following oath or affirmation:

I swear or affirm that, under penalty of contempt, I will keep secret all that transpires in the Grand Jury room, all matters occurring before the Grand Jury, and all matters and information concerning this Grand Jury obtained in the course of the representation, except when authorized by law or permitted by the Court. 42 Pa.C.S.A. § 4549(b).

These statements are made subject to the penalties of 18 Pa.C.S. § 4903 [ (False swearing) ].

Counsel declined to accept these terms, however, and Appellants lodged a joint motion to strike the non-disclosure provision from the entry-of-appearance form. They argued that the requirement of secrecy was not authorized by the Investigating Grand Jury Act, both as to the obligation being imposed upon counsel and, alternatively, in terms of the breadth of that duty.²

The Dioceses' lead contention was that the secrecy requirement of Section 4549(b) simply does not apply to private attorneys. They first posited that, "[b]y its terms," Section 4549(b) applies only to persons who are "sworn to secrecy" -- i.e. , those who are required in practice to sign an oath of secrecy -- such as "Commonwealth attorneys, grand jurors, stenographers, typists, and operators of recording equipment." Brief in Support of the Dioceses' Joint Motion to Strike in In re 40th Statewide Investigating Grand Jury , CP-02-MD-571-2016 (C.P. Allegeheny), at 4.³

From this early stage in their presentation, Appellants began to substitute the term "Commonwealth attorneys" for the word "attorney" as it appears in Section 4549(b)'s list of persons who must maintain secrecy. Their justification, at this juncture -- based on the above line of reasoning -- was the contention that private attorneys "generally are not required to sign the oath of secrecy." Id. ; see also N.T., May 26, 2017, at 10-11 (reflecting the argument of Appellants' counsel to the supervising judge as follows: "The fact that normally [private attorneys are] not required to execute the secrecy oath I think is an indicator, perhaps the biggest indicator, that there is a difference between those who are statutorily bound to keep ... matters before the grand jury secret and those who are not bound to do so unless it's specifically ordered by the court"). The Dioceses further opined, without offering supporting authority, that private attorneys are relieved from taking an oath of secrecy, because they are only in the presence of grand juries for a limited period of time during which their clients testify as witnesses. See Brief in Support of the Dioceses' Joint Motion to Strike in In re 40th Statewide Investigating Grand Jury , CP-02-MD-571-2016, at 4.⁴

Appellants also deemed it significant that Section 4549(d) expressly provides that a client-witness is not prohibited from publicly disclosing his or her testimony except for cause shown in a hearing before the court. See id. § 4549(d). Given the latitude afforded to witnesses, the Dioceses protested that requiring a commitment to secrecy on the part of private attorneys creates an anomalous situation in which a client-witness is free to disclose his grand jury testimony, but his lawyer cannot act on his behalf to make such a disclosure, even where specifically authorized by the client-witness.

Additionally, Appellants noted that a subsection of Section 4549 is dedicated to addressing "[c]ounsel for witnesses." 42 Pa.C.S. § 4549(c). According to the Dioceses, had the General Assembly intended to forbid disclosures by private attorneys, the logical place at which to reposit such a prohibition was within this subsection.

In terms of the breadth of the non-disclosure requirement appearing within the entry-of-appearance form, Appellants highlighted that Section 4549(b) discusses secrecy solely in the context of "matters occurring before the Grand Jury." 42 Pa.C.S. § 4549(b). The form, on the other hand, prohibits disclosure of "all matters and information concerning this Grand Jury obtained in the course of the representation," a constraint that the Dioceses depicted as being patently overbroad.⁵

After entertaining written and oral presentations of the parties' positions, the supervising judge denied relief on Appellants' joint motion. See In re Fortieth Statewide Investigating Grand Jury , No. 571 M.D. 2016, Notice No. 1 (C.P. Allegheny June 15, 2017). At the outset, the supervising judge stressed the pervading necessity for secrecy in grand jury proceedings. See id. at 2 (citing In re Investigating Grand Jury of Phila. Cty. (Appeal of Phila. Rust Proof Co.) , 496 Pa. 452, 457-58, 437 A.2d 1128, 1130-31 (1981) ). He also explained that a grand jury proceeding is an investigative tool to determine if a prima facie case of criminal activity exists, rather than an adversarial hearing in which guilt or innocence of an accused is determined. See id. at 3 (citing Pirillo v. Takiff , 462 Pa. 511, 524, 341 A.2d 896, 902 (1975) ).

The supervising judge then readily dispensed with the distinction drawn by Appellants between those persons who are required to take an oath of secrecy and attorneys. In this regard, he explained that the non-disclosure requirement in the entry-of-appearance form serves simply as "a customized version of the general secrecy oath required by section 4549(b)...." Id. at 6; see also supra notes 3 & 4.

The supervising judge proceeded to reject the imposition of a limiting construction, as suggested by the Dioceses' arguments, upon the word "attorney" as it appears in Section 4549(b)'s delineation of the categories of persons who are bound to non-disclosure. Invoking principles of statutory interpretation, he reasoned that words and phrases generally are to be construed according to their common usage. See 1 Pa.C.S. § 1903(a) ; see also Centolanza v. Lehigh Valley Dairies, Inc. , 540 Pa. 398, 406, 658 A.2d 336, 340 (1995) ("Absent a definition in the statute, statutes are presumed to employ words in their popular and plain everyday sense[.]"). Additionally, the supervising judge found that the broader interpretation was reinforced by Section 4549(b)'s specific references to "attorneys for the Commonwealth," a defined term under the Investigating Grand Jury Act, see 42 Pa.C.S. § 4542, and "counsel for witnesses." See In re Fortieth Statewide Investigating Grand Jury , No. 571 M.D. 2016, Notice No. 1, at 7 ("These references to specific subsets of attorneys demonstrate that the legislature knew the differences between the all-encompassing word ‘attorney’ and specific classifications within that broad category.").

Responding to Appellants' focus on Section 4549(c)'s treatment of counsel for witnesses, the supervising judge explained that attorneys sometimes appear before grand juries for other purposes, such as -- and in the case of the...