In re Wpxi, Inc., 950 WDA 2015

• Citation: 181 A.3d 349
• Decision Date: 14 March 2018
• Docket Number: No. 950 WDA 2015,950 WDA 2015
• Parties: IN RE: 2014 ALLEGHENY COUNTY INVESTIGATING GRAND JURY Appeal of: WPXI, INC.
• Court: Superior Court of Pennsylvania

181 A.3d 349

IN RE: 2014 ALLEGHENY COUNTY INVESTIGATING GRAND JURY

Appeal of: WPXI, INC.

No. 950 WDA 2015

Superior Court of Pennsylvania.

Argued June 22, 2016

Filed March 14, 2018

Walter P. DeForest, III, Pittsburgh, for appellant.

Michael W. Streily, Deputy District Attorney, Pittsburgh, for Commonwealth, participating party.

BEFORE: SHOGAN, OLSON, and STRASSBURGER,^* JJ.

OPINION BY STRASSBURGER, J.:

This matter comes before us on remand from the Pennsylvania Supreme Court, following its entry of an order reversing our determination of mootness of the appeal of WPXI, Inc. (WPXI). WPXI appeals from the May 22, 2015 order that denied its motion to intervene and obtain access to a search warrant and sealing order issued in connection with the 2014 Allegheny County investigating grand jury.¹ We affirm.

The following from our prior opinion summarizes the relevant underlying facts.

In early 2015, allegations of improper sexual relations between faculty and students at Allegheny County's Plum High School became public. In covering the ongoing news story surrounding the contentions and resulting grand jury investigation into them, WPXI, a Pittsburgh-based television station, presented to the trial judge serving as the supervising judge of the grand jury a motion to intervene and to access public judicial records. Therein, WPXI averred, upon information and belief, that the trial court had on May 18, 2015, issued (1) a warrant authorizing a search at the Plum High School Administration Building, and (2) an order sealing the affidavit of probable cause that supported the search warrant.¹ After hearing argument on the motion on May 22, 2015, the trial court denied WPXI's motion.

¹ WPXI was not seeking access to the supporting affidavit or any attachment identifying suspected juvenile victims.

In re 2014 Allegheny Cty. Investigating Grand Jury , 147 A.3d 922, 923 (Pa. Super. 2016) (internal citations and quotation marks omitted).

WPXI timely filed an appeal, which we sua sponte dismissed as moot on the basis that WPXI had otherwise obtained the documents in question when they were made public by another source. Id. at 924. Our Supreme Court determined that this Court lacked sufficient information to make the mootness determination, and remanded for us to consider the merits of the appeal. In re 2014 Allegheny Cty. Investigating Grand Jury , 173 A.3d 653 (Pa. 2017).

The questions before us are as follows.

1. Whether the lower court erred in not granting WPXI's motion to intervene.

2. Whether the lower court erred and abused its discretion in denying WPXI's motion for access to:

(a) the application for search warrant and authorization (i.e. , the search warrant) for a search at Plum School District High School/Administrative Building, when the search warrant was issued by the court on May 18, 2015 and executed prior to WPXI's motion to intervene and obtain access, and WPXI's motion for access did not seek any materials identifying any suspected juvenile victims, and

(b) the related order of court dated May 18, 2015 that sealed only the attachment to the search warrant application and affidavit for probable cause identifying suspected juvenile victims (which order of court was not itself sealed by an order entered on the record).

3. Whether the lower court erred in not making specific findings as to any compelling governmental interests or public and private interests that would outweigh WPXI's and the public's right to access.

WPXI's Brief at 4 (unnecessary capitalization omitted).

We begin with the propriety of WPXI's request to intervene and the trial court's denial thereof. "The filing of a motion to intervene in a criminal case by the news media has long been recognized by [our Supreme] Court as an appropriate means of raising assertions of public rights of access to information regarding criminal case proceedings."² Commonwealth v. Fenstermaker , 515 Pa. 501, 530 A.2d 414, 416 n.1 (1987). "Intervention of this type may properly be termed de bene esse , to wit, action that is provisional in nature and for the limited purpose of permitting the intervenor to file a motion, to be considered separately, requesting that access to proceedings or other matters be granted." Id.

Thus, under Fenstermaker , WPXI should have filed a motion seeking only to intervene. The trial court should have granted it, after which WPXI should have filed its motion to access the documents in question. The trial court then should have scheduled a hearing on the motion for access, and ruled on the merits of that motion.

Instead, WPXI filed a single motion: a "motion to intervene and obtain access to public judicial records." Motion to Intervene, 5/21/2015. The following day, the trial court held a hearing on the motion, at which it considered WPXI's standing as well as the substance of WPXI's request for access to the requested documents. N.T., 5/22/2015, at 11–15. At the conclusion of the hearing, the trial court denied WPXI's motion on several alternative bases. Id. at 14–15.

To the extent that it denied the intervention portion of WPXI's motion, the trial court did err. See , e.g. , Fenstermaker , 530 A.2d at 416 n.1. However, because the court held a hearing at which WPXI presented the substance of its request, and the court ruled on the merits thereof, WPXI de facto was permitted to intervene. Accordingly, although there was technical error, no relief is warranted.

We next consider whether the trial court erred in denying WPXI's claims of access to the grand-jury-related documents. WPXI sought to obtain the search warrant and sealing order pursuant to both common law and the First Amendment. See N.T., 5/22/2015, at 8.

Neither WPXI nor the Commonwealth cites any Pennsylvania decision addressing the public's right (or lack thereof) to access or copy grand jury documents or search warrant documents issued in connection with a grand jury investigation. Nor have we found any. In deciding this issue of first impression, we first examine cases that establish the legal principles applicable to requests for other judicial documents, and then consider how the special nature of grand jury proceedings impacts the analysis of those principles.

Our Supreme Court set forth the standard for establishing the common law right of access to public judicial documents in Fenstermaker , a case in which a newspaper sought access to arrest warrants and supporting affidavits. "The threshold inquiry ... is whether the documents sought to be disclosed are public judicial documents, for not all writings connected with judicial proceedings constitute public judicial documents." Fenstermaker , 530 A.2d at 418. There is a presumption of openness where public judicial documents are involved; however, the right is not absolute. Id. at 420. Access to public judicial documents may be denied when the presumption "is outweighed by circumstances warranting closure of the document to public inspection[.]" Id.

Applying the above test to the arrest warrants at issue, the Court concluded that the documents were judicial because they informed the decision to issue an arrest warrant. Further they were public because procedural rules provide for the filing of warrants and affidavits, making them part of the permanent public record of the case. Id. at 418–19. Having concluded that the requested documents were public judicial documents, the Court held that the newspaper should have been granted access to the arrest warrant affidavits:

When arrests have been made pursuant to warrants, the supporting affidavits must be deemed open to public inspection until such times as District Attorneys or defense counsel have obtained court orders that the affidavits be sealed from public access. This places upon those wishing to seal affidavits a burden of moving swiftly to obtain the necessary court orders, but it is a burden that is necessary in order to accord due recognition to the common law right of the public to secure access to such documents. The decision of the trial court shall be appealable and shall be rendered following a hearing, and the record shall contain an articulation of the factors taken into consideration in reaching a determination as to sealing of the affidavits.

Id. at 420–21.

Our Supreme Court again considered the issue of the common law right of access in PG Publishing Company v. Commonwealth , 532 Pa. 1, 614 A.2d 1106 (1992). In that case, the Pittsburgh Post–Gazette sought access to search warrants and supporting affidavits after the warrants had been executed, but before the target had been charged with murder. Id. at 1107. After examining Fenstermaker , and recognizing "that the purposes of arrest warrants and search warrants differ," the Court nonetheless concluded that "the differences do not compel a conclusion that search warrants are not public records once the warrants have been executed." Id. at 1108.

A search warrant is a public judicial document. There is no historical tradition of public access to search warrant proceedings. As with arrest warrants, however, the search warrant application is filed with district justices who are part of the Commonwealth's unified judicial system. The documents upon which the district justice bases a decision to issue a search warrant are also judicial in character, for the decision to issue a search warrant is a judicial decision.

The ex parte application for the issuance of a search warrant and the issuing authority's consideration of the application are not subject to public scrutiny. The need for secrecy will ordinarily expire once the search warrant has been executed.

Id. at 1108.

Our Supreme Court once more took up the issue in Commonwealth v. Upshur , 592 Pa. 273, 924 A.2d 642 (2007) (Opinion Announcing the Judgment of the Court), a case in which WPXI sought access to an audiotape that was played at Upshur's preliminary hearing but was not entered into evidence. Upshur , 924 A.2d at 645. Justice Saylor, announcing the judgment of the Court, first...