[J-17-2015] [OAJC: Saylor, C.J.] IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

**IN RE: THE THIRTY-FIFTH STATEWIDE INVESTIGATING GRAND JURY** 

**PETITION OF: ATTORNEY GENERAL, KATHLEEN G. KANE**  **: :**  **: :**  **: :**  **: No. 197 MM 2014** 

**ARGUED : March 11, 2015** 

CONCURRING OPINION

MR. JUSTICE BAER DECIDED: March 31, 2015

**In 2014, information was leaked to the media that was subject to secrecy in**  **connection with a statewide grand jury that was sitting in 2009 before Judge Barry**  **Feudale (hereafter, the Feudale grand jury). 1**  **Judge Feudale is no longer part of Pennsylvania’s active judiciary and the grand jury over**  **which he presided has long since concluded. Judge William R. Carpenter was the super** **vising judge of the thirty fifth statewide investigating grand jury, which was emp**  **aneled in January 2013 and has recently concluded. He determined that there were rea**  **sonable grounds to believe an investigation should be conducted to determine the source**  **of the 2014 leaks of the secret testimony from the 2009 Feudale grand jury. To**  **this end, he appointed Thomas E. Carluccio as a “special prosecutor” to conduct an investig**  **ation into contempt incident**

**1 See 42 Pa.C.S. § 4549(b) (establishing grand jury se**  **crecy and providing that any person who violates secrecy “shall be in contempt of cour**  **t.”). [J-17-2015] [Saylor, C.J.] - 2** 

**to any grand jury secrecy leak and crimes related thereto , and provided Mr. Carluccio**  **with expansive prosecutorial powers. The Attorney General, Kathleen G. Kane, argues that**  **there was no legal authority for the appointment of a special prosecutor,**  **and that the designation violates the constitutional separation of powers in that it inf**  **ringes on her office’s investigatory and prosecutorial function. To vindicate her position**  **that Judge Carpenter exceeded his powers by appointing Mr. Carluccio, the Attorney Gener**  **al brings this** quo warranto **action presenting the narrow legal issue of whether thi s Court should quash the**  **appointment of the special prosecutor by Judge Carpente r in connection with alleged**  **leaks from the Feudale grand jury, and, in accord with that quashal, suppress the**  **proceedings as void** ab initio

**. On the limited issue presented, I agree with the Opini**  **on Announcing the Judgment of the Court (OAJC) that**  quo warranto **relief should be denied because the supervising judge possessed inherent authority to appoin**  **t an individual to investigate the leak of grand jury testimony to protect the sanctity**  **of the prior grand jury proceeding and to remedy any breach of statutorily mandated secrecy**  **through contempt findings. 2**  **I write separately because I believe that Judge Carpen ter’s appointment order, which**  **the OAJC seemingly endorses, attempted to bestow upon M r. Carluccio power that far** 

**2 The Attorney General has argued that Judge Carpente**  **r lacked authority to appoint a special prosecutor to investigate the breach o**  **f grand jury secrecy because it was related to the concluded grand jury. While I agre**  **e with the Attorney General that leaks of grand jury information should be vindicated by**  **the supervising judge of that grand jury, that may not always be possible. In this ca**  **se specifically, the Feudale grand jury has concluded and Judge Feudale is no longer part o**  **f the active judiciary. Under these circumstances, it is appropriate for a different s**  **upervising judge to oversee the investigation into the source of the leaks.** **[J-17-2015] [Saylor, C.J.] - 3**

**exceeded the authority to investigate contempt and to r eport his findings to the court. It**  **is only because Judge Carpenter had the power to appoi nt a person to investigate**  **contempt, Mr. Carluccio acted in accord with that power, and because Mr. Carluccio did**  **not ultimately employ that aspect of the excessive grant of power by attempting to**  **prosecute the Attorney General, instead submitting the grand jury presentment to the**  **District Attorney of Montgomery County for consideratio n, that I am able to join the** 

**OAJC’s mandate. When a court seeks to engage in fact-finding, it employs**  **a special master, not a special prosecutor. The function of a special master is t**  **o gather necessary factual information, consider pertinent legal questions, and p**  **rovide the court with**

**recommendations. 3**  **Special masters operate as an arm of the court, investi gating facts** 

**3 See e.g. In re J.V.R., No. 81 MM 2008, 2/11/2009 (**  per curiam **) (noting that the Supreme Court appointed a special master to review a**  **ll Luzerne County juvenile court adjudications and dispositions that had been affected by**  **a trial judge’s criminal actions and to make recommendations to the Court concerning a**  **ppropriate remedial actions); Commonwealth v. Rony, 79 A.3d 595 (Pa. 2013) (Saylo**  **r, J., dissenting) (acknowledging that the Supreme Court appointed a special master to**  **consider a petition challenging Philadelphia’s compensation system for defense counsel in ca**  **pital criminal cases); Levy v. Senate of Pennsylvania, 65 A.3d 361 (Pa. 2013) (a**  **pproving the factual determinations and legal conclusions made by a special mast**  **er appointed by the Commonwealth Court to review**  in camera **particular documents allegedly subject to the Pennsylvania Right to Know Act); Annenberg v. Commonw**  **ealth, 757 A.2d 333 (Pa. 1998) (appointing a special master to make findings of**  **fact and conclusions of law regarding whether a taxing statute violated the Comm**  **erce Clause of the United States Constitution); Pa. State Ass’n of County Comm’rs v. Com**  **monwealth, 681 A.2d 699 (Pa. 1996) (appointing a special master to prepare recommend**  **ations to the Supreme Court regarding the implementation of the unified judicial**  **system); Commonwealth v. Banks, 29 A.3d 1129 (Pa. 2011) (appointing a trial court ju**  **dge as a special master to make findings of fact and conclusions of law relating to a chal**  **lenge to the competency of a defendant to be executed). See also In re City of P**  **ittsburgh, 600 A.2d 630, 632 Pa. Cmwlth. 1991) (holding that “[c]ourts historically possess**  **the inherent authority to appoint masters to assist them in performing their vari**  **ous functions”). [J-17-2015] [Saylor, C.J.] - 4** 

**on behalf of the court and communicating with it to keep it apprised of its findings; they**  **do not act as independent prosecutors. Turning to the appointment at issue in this case, it is**  **important to keep in mind that the consequence for violating grand jury secrecy is**  **contempt of court, see 42 Pa.C.S. § 4549(b). The authority to punish for conte**  **mpt is a right that is “inherent in courts and is incidental to the grant of judicial power**  **under Article 5 of our Constitution.” Commonwealth v. McMullen, 961 A.2d 842, 849 (Pa. 200**  **8). Under circumstances where a judge finds there are reasonable grounds to**  **believe a further investigation is warranted into allegations of a violation of grand j**  **ury secrecy, an indirect criminal contempt of court, it would be appropriate to appoin**  **t a special master to assist the judge in this factual endeavor. This is precisely what occurr**  **ed in In re Dauphin County Fourth Investigating Grand Jury, 19 A.3d 491 (Pa. 2011), no**  **twithstanding, in my view, this court’s unfortunate use of the term “special prosecutor,”**  **which has contributed to the confusion requiring this explanation.**  **In Dauphin County, we remanded to the supervising jud ge of a sitting grand jury**  **for an evidentiary hearing relating to allegations o f a breach of grand jury secrecy. Id. at**  **497. Following the evidentiary hearing, this Court again considered the matter and**  **again remanded, but this time to the President Judge o f the Dauphin County Court of**  **Common Pleas to appoint a “special prosecutor” for the sp ecific purpose of**  **“conduct[ing] further inquiry into the allegations of violations of the secrecy provisions of**  **the Investigating Grand Jury Act . . . and to oversee su ch inquiry. . .” Id. at 498.**  **Notwithstanding what I believe to be the imprecise ter minology of “special prosecutor,”**  **the limited purpose for which we authorized the appo intment indicates that our intent** **[J-17-2015] [Saylor, C.J.] - 5**

**was a narrow fact-finding mission to delve into allegat ions of contempt. The special**  **prosecutor we referenced should more properly have been referred to as a special** 

**master. In accord with the restricted nature of our mandate, th**  **e President Judge appointed a special master under the misnomer of “specia**  **l prosecutor,” with a narrowly defined mission and authority: to conduct inquiry into**  **allegations of violations of grand jury secrecy; upon approval of the court, to retain re**  **asonable investigative, clerical, and secretarial services to facilitate his duties; to have the**  **proceedings transcribed; to review the grand jury transcripts; to keep the court ap**  **prised of the status of the investigation; to present a final report of findings a**  **nd reasons therefore; and to maintain all matters under seal. Id. at 499. Importantly, th**  **e order also provided that if the “special prosecutor” required compelled testimony or do**  **cuments, he had to petition the court for the issuance of subpoenas and the scheduling o**  **f a hearing with all of the trappings of due process. Id.**  **Therefore, In re Dauphin Co., despite what I believ e was loose and unfortunate**  **prose, provides authority for the appointment of a spe cial master for the limited purpose**  **of determining the source of illegal leaks of grand ju ry information with limited**  **investigating functions, under court supervision, and wi th full due process rights**  **afforded to all involved. Notably, the appointing judge in that case did not authorize the**  **special master to utilize the investigative authority o f a grand jury, generally to**  **investigate crimes, or to prosecute crimes. Judge Carpenter’s order appointing the special prosecut**  **or in the matter before us was in part consistent with my understanding of the use**  **of a special master to [J-17-2015] [Saylor, C.J.] - 6** 

**investigate contempt of court (which allows me to join the mandate herein), and, in part,**  **inconsistent therewith because its expansive mandate gave the “special prosecutor”**  **excessive investigative and prosecutorial power. Specifica lly, Judge Carpenter’s order**  **provided that the special prosecutor was appointed to i nvestigate and prosecute any**  **offenses related to “any alleged illegal disclosure of i nformation protected by the law,”**  **including violations of grand jury secrecy, 42 Pa.C.S. § 4549(b), obstructing the**  **administration of law or other government function, 1 8 Pa.C.S. § 5101, or “any other**  **applicable offense.” The supervising judge further ordered that the “special**  **prosecutor” was authorized to use the sitting grand jury to investigat**  **e such crimes; request immunity orders from the Attorney General; to have “day-to-da**  **y independence” and “independent prosecutorial discretion whether, which and when any pot**  **ential witness should be brought before the Grand Jury and/or whether, which a**  **nd when charges should be brought, including contempt of court;” to consult with**  **members of the Office of Attorney General; to respond to interference with his investigat**  **ion by investigating and prosecuting crimes committed in connection with the inter**  **ference (including perjury and intimidation of witnesses); to provide the supervising**  **judge periodic summaries of his progress; and submit a report setting forth his finding**  **s and recommendations. In addition to penning an inappropriately broad ord**  **er, Judge Carpenter also permitted improper and relatively constant**  ex parte **communication between Mr. Carluccio and himself, offending notions of fundament**  **al fairness. While such communication may have been understandable if this scenar**  **io was simply one involving a special master, here, as noted, the court attempted to**  **vest Mr. Carluccio with the vast [J-17-2015] [Saylor, C.J.] - 7** 

**general authority of a prosecutor. Additionally, eve n when it became apparent that the**  **investigation had focused on the Attorney General, the supervising judge conducted**  ex parte **hearings with the special prosecutor and selected witnesse s, resulting in orders to**  **the detriment of the Attorney General, all the whil e engaging the special prosecutor**  ex parte **and excluding the Attorney General from both the cou rt conferences and the**  ex parte **hearings. Such insular** ex parte **hearings had none of the trappings of due process, and, were not confined to grand jury matters, bu**  **t rather, resembled the actions of a district attorney in an adversarial, as opposed to**  **investigative, role, which requires due process.** 

**To the extent the order under review herein and the process employed**  **authorized the special prosecutor to investigate the sou rce of illegal leaks of grand jury**  **secrecy, as contempt of court, it may be consistent with th e general use of special**  **masters to assist the judiciary in fact-finding, and with the order we approved in In re**  **Dauphin Co. However, I am aware of no authority f or Judge Carpenter to authorize the**  **special prosecutor to utilize the sitting grand jury fo r this purpose, to subpoena**  **witnesses independently, to investigate crimes, to determ ine what charges should be**  **brought, or to prosecute anyone. Such a sweeping gra nt of prosecutorial authority finds**  **no support in In re Dauphin Co. or any case cited there in. See In re: County**  **Investigating Grand Jury VIII, 2003, 2005 WL 3985351 (Lack.Com.Pl. 2005); Castellani**  **v. Scranton Times, 956 A.2d 937 (Pa. 2008). Moreover , I believe it is likely that Judge**  **Carpenter and Mr. Carluccio’s constant collusion as well a s the**  ex parte **hearings in prosecutorial rather than contempt matters may have vio**  **lated the Attorney General’s due process rights.** **[J-17-2015] [Saylor, C.J.] - 8**

**While I am obviously troubled by the supervising judge ’s attempt to broaden the**  **scope of the special prosecutor/master’s role in this matter , and I believe that any**  **apparent endorsement by the OAJC of these actions sets a potentially dangerous**  **precedent regarding the appropriate scope of power of future supervising judges, I am**  **in a concurring, rather than a dissenting posture, because of what the special**  **prosecutor ultimately did with this sweeping grant of authority, or, rather, what he did not**  **do. Specifically, notwithstanding the authorization o f prosecutorial discretion allowing**  **him to bring charges and prosecute offenders, the special prosecutor did neither of**  **these. Instead, he turned the matter over to the Mon tgomery County District Attorney,**  **the proper executive authority, to investigate indepe ndently crimes other than contempt**  **that were allegedly committed in the course of his inv estigation and to decide whether to**  **prosecute. 4**  **Likewise, my concerns with the process do not demand a di fferent result. If**  **charges are ultimately brought against the Attorney Ge neral, due process in such**  **proceedings will be required and, thus, any violations through the prior proceedings will** 

**be rendered harmless. I therefore concur that the Attorney General is not**  **entitled to** quo warranto **relief on the narrow issue presented to this court because Judge**  **Carpenter had the authority to appoint a special master to investigate contempt, an**  **d, in the end, that was encompassed within Mr. Carluccio’s actions.** 

**4 The grand jury presentment found reasonable grounds**  **to believe the Attorney General was involved in the following crimes: perjury,**  **18 Pa.C.S. §4902; false swearing, 18 Pa.C.S. § 4903; official oppression, 18 Pa.C.S. § 5**  **301; obstructing the administration of law or other governmental function,**  **18 Pa.C.S. § 5101; and criminal contempt of court. Notably, however, the supervising j**  **udge has indicated that because contempt of court is normally handled by the court, it**  **was not specifically referred to the district attorney.**