Pa. Office of Attorney Gen. v. Supervising Judge of the Thirty-Fifth Statewide Investigating Grand Jury, 171 MM 2014
| Decision Date | 26 August 2015 |
| Docket Number | No. 171 MM 2014,171 MM 2014 |
| Parties | PENNSYLVANIA OFFICE OF ATTORNEY GENERAL, Petitioner v. SUPERVISING JUDGE OF THE THIRTY-FIFTH STATEWIDE INVESTIGATING GRAND JURY, Respondent |
| Court | Pennsylvania Supreme Court |
PENNSYLVANIA OFFICE OF ATTORNEY GENERAL, Petitioner
v.
SUPERVISING JUDGE OF THE THIRTY-FIFTH STATEWIDE INVESTIGATING GRAND JURY, Respondent
No. 171 MM 2014
SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT
August 26, 2015
ORDER
PER CURIAM
AND NOW, this 26th day of August, 2015, upon the request of the supervising judge for removal of the seal from all matters involving the 35th Statewide Investigating Grand Jury and the investigation of Attorney General Kathleen Kane which have been lodged in this Court, save for grand jury materials such as testimony, exhibits, and in camera proceedings, and based on the supervising judge's assurance that there are no present grand jury secrecy concerns relative to such unsealing, it is hereby ORDERED that the seal is lifted, in part, upon such terms.
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FILED UNDER SEAL
PENNSYLVANIA OFFICE OF ATTORNEY GENERAL'S PETITION FOR REVIEW OF ORDERS ENTERED BY SUPERVISING JUDGE OF THE THIRTY-FIFTH STATEWIDE INVESTIGATING GRAND JURY ON AUGUST 27, 2014, SEPTEMBER 17, 2014, AND OCTOBER 30, 2014
TO THE HONORABLE CHIEF JUSTICE AND JUSTICES OF THE SUPREME COURT OF PENNSYLVANIA:
AND NOW, comes the Office of Attorney General of the Commonwealth of Pennsylvania by Kathleen G. Kane, Attorney General of the Commonwealth of Pennsylvania, who files this petition seeking the Supreme Court of Pennsylvania's review and vacation of the determination of the Supervising Judge of the Thirty-Fifth Statewide Investigating Grand Jury encompassed by the four related and interconnected Orders dated August 27, 2014, September
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17, 2014, and October 30, 2014 (collectively, "the protective order"). In support thereof, the following is averred:
1. This Court has jurisdiction over the instant petition pursuant to 42 Pa.C.S.A. § 722(5) and Pa.R.A.P. 3331(a)(3).
2. The petition for review is timely-filed because: (a) OAG had 10 days from the date of entry of the Order at issue1 to file the petition, see Pa.R.A.P. 3331(a); Pa.R.A.P. 1512(b)(3); (b) the Order at issue was filed on October 30, 2014, rendering a filing deadline of November 10, 2014;2 and (c) OAG filed the petition on November 10, 2014.
2. The Petitioner is the Office of Attorney General of the Commonwealth of Pennsylvania ("OAG").
3. Respondent is the Supervising Judge of the Thirty-Fifth Statewide Investigating Grand Jury, the Honorable William R. Carpenter ("the Supervising Judge").
4. OAG seeks this Court's review of the Supervising Judge's Order dated October 30, 2014, which denies OAG's motion for reconsideration of the Order entered by the Supervising Judge dated August 27, 2014 as amended twice thereafter on September 17, 2014. See copy of the October 30, 2014 Order, attached as Exhibit A.
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5. In other words, the determination sought to be reviewed encompasses four related and interconnected orders:
a. the August 27, 2014 Order, which states, inter alia, that: (i) OAG shall refrain from any involvement in or access to the investigative efforts of the Special Prosecutor in Notice No. 123; (ii) OAG and its employees shall have no access to the transcripts, exhibits, and other information pertaining to Notice No. 123; (iii) OAG employees shall refrain from engaging in or soliciting any act of obstruction, intimidation, or retaliation against any witness summoned by the Special Prosecutor in Notice No. 123; and (iv) any person who engages in an act of obstruction, intimidation, or retaliation against a witness summoned by the Special Prosecutor in Notice No. 123 may be prosecuted pursuant to 18 Pa.C.S.A. § 4955;3
b. the September 17, 2014 Order, which amended the August 27, 2014 Order to permit a second hearing - this one with the ostensible involvement of OAG — to be conducted on the subject of "allegations of obstruction, witness intimidation, and/or retaliation;"4
c. another September 17, 2014 Order, which amended the August 27, 2014 Order and indicated, inter alia, that only the following persons are subject to the prohibition of obstruction, intimidation, or retaliation of any witness and criminal prosecution therefore: (i) any person who has been sworn to Grand Jury secrecy; (ii) any person who has or had access to any Grand Jury information; and (iii) any person associated with the J. Whyatt Mondesire investigation and proceedings;5
d. the October 30, 2014 Order, which rendered final the amended protective order.
See copies of the August 27, 2014 Order and the two September 17, 2014 Orders, attached as Exhibits B, C, and D, respectively.
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Background
6. On June 6, 2014, the Philadelphia Daily News published an article describing a review by OAG of a prior Grand Jury investigation. See copy of the on-line version of the article, attached as Exhibit E.
7. The Supervising Judge appointed Thomas Carluccio, Esquire as Special Prosecutor to investigate this development pursuant to Notice of Investigation No. 123 and authorized him to use the resources of the Thirty-Fifth Statewide Investigating Grand Jury.
8. OAG, which conducts all other investigations in the Thirty-Fifth Statewide Investigating Grand Jury, has made every effort to accommodate the Special Prosecutor's needs and has cooperated with him fully.6
9. On August 26, 2014, with no prior notice to OAG or any of its individual employees, with no specific allegations or explanation, and with no opportunity for OAG to respond to any allegations of misconduct, the Supervising Judge issued the initial protective order under the authority of 18 Pa.C.S. § 4954 (along with a related sealing order). See Exhibit B.
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10. As noted supra, that Order stated, inter alia, that: (a) OAG shall refrain from any involvement in or access to the investigative efforts of the Special Prosecutor in Notice No. 123; (b) OAG employees shall have no access to the transcripts, exhibits, and other information pertaining to Notice No. 123; (c) OAG employees shall refrain from engaging in or soliciting any act of obstruction, intimidation, or retaliation against any witness summoned by the Special Prosecutor in Notice No. 123; and (d) any person who engages in an act of obstruction, intimidation, or retaliation against a witness summoned by the Special Prosecutor in Notice No. 123 may be prosecuted pursuant to 18 Pa.C.S.A. § 4955.
11. OAG moved for reconsideration of the initial protective order, and argument on the motion was conducted on September 16, 2014.
12. At the time of that argument, OAG was informed for the first time that an ex parte, in camera "hearing" had been conducted and that the initial protective order had issued as a result.
13. On September 17, 2014, the Supervising Judge issued an Order granting in part OAG's motion for reconsideration, granting a hearing on "the subject of...allegations of obstruction, witness intimidation, and/or retaliation," but not establishing a date for said hearing. (Exhibit C at 1).
14. The Order failed to specify any person or conduct that was at issue in connection with the allegations.
15. The Order failed to explain, elaborate, or otherwise provide a context for the phrase "allegations of obstruction, witness intimidation, and/or retaliation."
16. The Order failed to identify the source of the vague allegations.
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17. Also on September 17, 2014, the Supervising Judge issued another Order granting in part OAG's motion for reconsideration, this one amending Paragraphs 2 and 5 of the initial protective order to indicate that "only" the following persons are subject to the initial protective order's prohibition on obstruction, intimidation, or retaliation against witnesses in the Special Prosecutor's investigation as well to the penalty of prosecution for violation of 42 Pa.C.S.A. § 4955:
1. Any person who has been sworn to Grand Jury secrecy;
2. Any person who has or had access to any Grand Jury information;
3. Any person associated with the J. Whyatt Mondesire proceedings and investigation.
(Exhibit D at 1).
18. The foregoing amended language is not limited to any particular grand jury or grand jury information - past, present, or future.
19. The amended protective order applies to and directly affects hundreds of OAG employees past and present residing throughout the Commonwealth, innumerable individuals not affiliated in any manner with OAG, as well as the Attorney General and her predecessors.
20. People who have been sworn to grand jury secrecy include the Attorney General, OAG employees, employees of other law enforcement agencies who participate in grand jury investigations, court reporters, and members of the grand jury.
21. People who have had access to grand jury information include not only the foregoing...
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