Opinion
No. 2 MM 2015
08-26-2015
IN RE: SPECIAL PROSECUTOR, THIRTY-FIFTH STATEWIDE INVESTIGATING GRAND JURY
ORDER
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 upon such terms. SUPREME COURT No. GRAND JURY DOCKETS: SUPREME COURT OF PA No. 176 MD 2012 MONTGOMERY CO. COURT No. 2644 MD 2012 EMERGENCY APPLICATION FOR EXTRAORDINARY RELIEF
AND NOW, this 7 day of January, 2015, comes Patrick R. Reese, by counsel, William A. Fetterhoff, Esq., and presents the following:
JURISDICTION
1. The Supreme Court of Pennsylvania has jurisdiction pursuant to the Judiciary Article of the Constitution of the Commonwealth of Pennsylvania, Article 5, Section 2 (jurisdiction of the Supreme Court); Article 5, Section 10 (supervisory authority of the Supreme Court); and the first clause of Section 1 of the Schedule to the Judiciary Article (power and jurisdiction of the Supreme Court); and further pursuant to the Judicial Code, 42 Pa.C.S.A. §721(3) (original jurisdiction of the Supreme Court in quo warranto); and §726 (extraordinary jurisdiction of the Supreme Court); as implemented by Pa.R.A.P. 3307 (pleadings in original actions) and 3309 (King's Bench matters).
APPLICANT
2. The Applicant is Supervisory Special Agent Patrick R. Reese, an employee of the Pennsylvania Office of Attorney General (OAG). Special Agent Reese is a member of the Protection Detail for Attorney General Kathleen Kane. Among other duties, Special Agent Reese is a driver for Attorney General Kane. Special Agent Reese has an office in the OAG Scranton Regional Office, 417 Lackawanna Avenue, Scranton, PA 18510, and resides at 939 Meade Street, Dunmore, PA 18512.
3. On January 7, 2015 Special Agent Reese, through counsel, accepted service of a subpoena issued by Special Prosecutor Thomas E. Carluccio. The subpoena requires Special Agent Reese to appear and testify on January 12, 2015 before the Thirty-Fifth Statewide Investigating Grand Jury sitting in Montgomery County.
4. The Applicant, by virtue of having been served with a subpoena to appear and testify, has standing to challenge the legality of the office of Special Prosecutor appointed to the Thirty-Fifth Statewide Investigating Grand Jury. Gwinn v. Kane, 19 Pa.Cmwlth. 243, 339 A.2d 838, 840-843 (1975), disposition affirmed, 465 Pa. 269, 348 A.2 900 (Pa. 1975).
FACTUAL BACKROUND
5. On June 6, 2014 an article appeared in the Philadelphia Daily News concerning a 2009 grand jury investigation of J. Whyatt Mondesire, a former head of the NAACP in Philadelphia, and Harriet Garrett, one of Mr. Mondesire's employees. Exhibit A.
6. The 2009 statewide investigating grand jury had been convened and impaneled in Montgomery County.
7. The Philadelphia Daily News article cited two documentary sources: First, a 2009 memo written by then-Deputy Attorney General William Davis, Jr., addressed to then-Chief Deputy Attorney General Frank Fina and then-Senior Deputy Attorney General E. Marc Costanzo; and Second, a 2014 transcript of a taped interview by David Peifer, Director of the OAG Bureau of Special Investigations, of Michael Miletto, the OAG special agent who had earlier investigated Mr. Mondesire and Ms. Garrett. Exhibit A.
8. Following publication of the June 6, 2014 Philadelphia Daily News article, a Special Prosecutor (Thomas E. Carluccio, Esq., an attorney in private practice) was appointed and authorized to utilize the Thirty-Fifth Statewide Investigating Grand Jury to investigate the alleged "leak" of alleged "grand jury material" by employees of the OAG, or other persons, to the Philadelphia Daily News.
9. The written communications, applications, petitions, orders, notice of submission, and all other documents underlying the appointment of the Special Prosecutor and submission of this investigation to the grand jury are under seal. It has been publicly reported that the appointment of the Special Prosecutor in this matter was authorized by the Supreme Court and by Order of Supervising Judge of the Grand Jury William R. Carpenter. Exhibits B, C, and D.
BASIS FOR EXTRAORDINARY RELIEF
10. The Investigating Grand Jury Act, 42 Pa.C.S.A. §§4541 et seq., does not provide for appointment of any special prosecutor.
11. The Commonwealth Attorneys Act, 71 P.S. §§732-101 et seq., does not provide for the appointment of any special prosecutor.
12. The sole provisions in Pennsylvania law for appointment of a special prosecutor apply only in the event that an elected county District Attorney has been charged with crime or wilful and gross negligence in office. County Code, 16 P.S. §§1405-1406. See similar provisions at 16 P.S. §7710 concerning counties of the first class; and 16 P.S. §§4405-4406 concerning counties of the second class.
13. Pa.R.A.P. 3331 provides for review by the Supreme Court of "An order relating to the supersession of a district attorney by an Attorney General or by a court, or to the appointment, supervision, administration or operation of a special prosecutor." This rule does not create any independent substantive authority for the appointment of any special prosecutor, and must therefore be construed to apply solely to cases arising under the above-cited provisions of the County Code.
14. The consideration of a special prosecutor in Dauphin County Grand Jury Investigation Proceedings (No. 3), 322 Pa. 358, 2 A.2d 809 (1938), was held to have been authorized by a 1929 Legislative enactment which was repealed upon passage of the Commonwealth Attorneys Act, supra, in 1980. Former section 907 of the Administrative Code of 1929, 71 P.S. §297, authorized President Judges of the Courts of Common Pleas to request in writing that the Attorney General intervene in criminal matters and supersede the local District Attorney. See statutory history: Commonwealth v. Harris, 501 Pa. 178, 460 A.2d 747, 751, fn. 1 (1983). Thus, reliance upon the 1938 case by the Lackawanna County Court in In re: County Investigating Grand Jury VIII, 2003, 2005 WL 3985351 (Pa.Com.Pl. 2005) for the general proposition that Pennsylvania courts have traditional or inherent authority to appoint special prosecutors, was misplaced. See section 11(C) of that Opinion, p.9-10, titled "Appointment of Special Prosecutor."
15. Another Lackawanna County grand jury later gave rise to a proceeding on the issue of whether the Pennsylvania Shield Law, 42 Pa.C.S.A. §5942, protects a newspaper reporter from compelled disclosure of the source of a grand jury leak. In Castellani v. The Scranton Times, 956 A.2d 937 (Pa. 2008), the Supreme Court, while addressing the Shield Law, mentioned in passing that the Supervising Judge of the Grand Jury had appointed a Special Prosecutor to investigate a leak, but as the validity of the appointment was not at issue, no authority for the appointment was cited.
16. In In Re Dauphin County Fourth Investigating Grand Jury, 947 A.2d 712 (Pa. 2008), grand jury leaks had been complained of by individuals subject to investigation. The Supreme Court issued a per curiam Order under the King's Bench authority of 42 Pa.C.S.A. §726, directing the Supervising Judge of the Grand Jury "to consider whether a special prosecutor should be appointed to pursue the allegations..." No authority in support of the contemplated appointment of a special prosecutor was cited. Id., 712. Subsequently, a special prosecutor was appointed, although, again, the later full Opinion by the Supreme Court does not cite any authority relied upon for the appointment. In Re Dauphin County Fourth Investigating Grand Jury, 19 A.3d 491 (Pa. 2011).
17. In disapproving the appointment of a special prosecutor by the Philadelphia Court of Common Pleas, to supersede the local District Attorney in the conduct of a grand jury investigation, outside the terms of 71 P.S. §297, the Supreme Court of Pennsylvania expressly held that Pennsylvania courts had no such exta-statutory authority, and "there is no public office in Pennsylvania known as Special Prosecutor." Smith v. Gallagher, et al , 408 Pa. 551, 185 A.2d 135, 149 (1962). The Supreme Court in Smith pointedly disapproved the proposition that Pennsylvania courts have inherent independent power to appoint special prosecutors, as follows:
[T]he intervening appellants say that Judge Alessandroni did have the jurisdiction and the authority to order a special grand jury and appoint a special prosecutor. The oral and written arguments submitted in behalf of this thesis, however, lack conviction or even persuasion. They speak vaguely of inherent authority, common law jurisdiction and traditional powers.Id., 146; and at length further at 151-154.
18. Although Smith v. Gallagher was decided by the Supreme Court in 1962, nothing in either the Investigating Grand Jury Act or the Commonwealth Attorneys Act, both adopted in 1980, has corrected the lack of authority to appoint special prosecutors vigorously pointed out by Justice Musmanno in 1962. Mere lapse of time has not provided new constitutional or statutory authority. Indeed, since repeal of 71 P.S. §297 by the Commonwealth Attorneys Act in 1980, 71 P.S. §732-502, no case has been found at any level of the Pennsylvania judiciary which has cited any constitutional or statutory authority for the appointment of a special prosecutor.
19. There was no necessity for the appointment of a special prosecutor in this matter, since, according to publicly known facts, several county District Attorneys had jurisdiction to both investigate any "leak" by the OAG and prosecute any crime found to have been committed. Such county District Attorneys appear to include, at a minimum, those serving Montgomery County (site of the 2009 grand jury), Dauphin County (site of the principal office of Attorney General Kane and numerous other OAG officers and employees), and Philadelphia County (site of the Philadelphia Daily News). Reinforcing the availability of at least those three counties, the Investigating Grand Jury Act by its own terms expresses a preference for county grand juries over multi-county grand juries, unless "the investigation cannot be adequately performed by an investigating grand jury under section 4543 (relating to convening county investigating grand jury). 42 Pa.C.S.A. §4544.
20. The argument that the appointment of a special prosecutor was necessary since the Office of Attorney General would have had a conflict of interest in investigating itself does not answer either: (1) the complete absence of statutory authority for such an appointment; or (2) the availability of several alternative county District Attorneys to whom the investigation could have been referred.
21. The appointment of Special Prosecutor Thomas E. Carluccio, and the proceedings of the Thirty-Fifth Statewide Investigating Grand Jury related to any matter submitted or actions taken by the Special Prosecutor, were and continue to be without legal authority, and null and void ab initio.
WHEREFORE, it is requested that the Supreme Court vacate the original Order appointing a Special Prosecutor in this matter under the applicable Notice of Submission or otherwise. It is further requested that the Supreme Court prohibit enforcement of all subpoenas issued by the Special Prosecutor under the authority of the Supervising Judge of the Grand Jury; and further prohibit issuance of any report or presentment by the Thirty-Fifth Statewide Investigating Grand Jury based on any matter submitted to the grand jury by the Special Prosecutor.
Respectfully submitted,
/s/_________
William A. Fetterhoff, Esq.
Fetterhoff and Zilli
218 Pine Street
Harrisburg, PA 17101
Telephone: 717 232-7722
FAX: 717 233-4965
E-mail: wfetterhoff@live.com
PA Supreme Court ID 23148
Attorney for Patrick R. Reese
Image materials not available for display. EMERGENCY APPLICATION FOR LEAVE TO FILE ORIGINAL PROCESS
AND NOW, this 7 day of January, 2015, comes Patrick R. Reese, by counsel, William A. Fetterhoff, Esq., and presents the following:
1. This Emergency Application For Leave To File Original Process is filed pursuant to Pa.R.A.P. 3307.
2. The accompanying Emergency Application For Extraordinary Relief invokes the jurisdiction of the Supreme Court under both 42 Pa.C.S.A. §721(3) (original jurisdiction of the Supreme Court in quo warranto), and 42 Pa.C.S.A. §726 (extraordinary or King's Bench jurisdiction).
3. In reference to the jurisdiction of the Supreme Court under 42 Pa.C.S.A. §721(3) only, leave to file the accompanying Emergency Application For Extraordinary Relief is requested on the ground that the Special Prosecutor in this matter was authorized by the Supreme Court, and such authorization would therefore not be subject to review by the Supervising Judge of the Grand Jury or any lesser court. While all documents filed to the grand jury dockets in this matter are under seal, it has been publicly reported that Supervising Judge of the Grand Jury William R. Carpenter issued the Order appointing the Special Prosecutor in this case, pursuant to a specific grant of authority by the Supreme Court to make such appointment.
4. The accompanying Emergency Application For Extraordinary Relief has also been filed pursuant to King's Bench jurisdiction under 42 Pa.C.S.A. §726, and is not subject to Pa.R.A.P. 3307.
WHEREFORE, it is requested that leave be granted under Pa.R.A.P. 3307 to include within the accompanying Emergency Application For Extraordinary Relief, a concurrent basis for relief under 42 Pa.C.S.A. §721(3).
Respectfully submitted,
/s/_________
William A. Fetterhoff, Esq.
Fetterhoff and Zilli
218 Pine Street
Harrisburg, PA 17101
Telephone: 717 232-7722
FAX: 717 233-4965
E-mail: wfetterhoff@live.com
PA Supreme Court ID 23148
Attorney for Patrick R. Reese
CERTIFICATE OF SERVICE
Pursuant to Pa.R.A.P. 121 and 122, the undersigned certifies that a true and correct copy of the foregoing document was served on the individual listed below on the date indicated by e-mail and first class United States mail.
Thomas E. Carluccio, Esq.
Special Prosecutor
1000 Madison Avenue
Norristown, PA 19403
E-mail: mailto:tomc3@comcast.net
Telephone: (484) 674-2899
January 7, 2014
/s/_________
William A. Fetterhoff, Esq.
Fetterhoff and Zilli
218 Pine Street
Harrisburg, PA 17101
Telephone: 717 232-7722
FAX: 717 233-4965
E-mail: wfetterhoff@live.com
PA Supreme Court ID 23148
Attorney for Patrick R. Reese
EMERGENCY APPLICATION FOR STAY OF GRAND JURY PROCEEDINGS
AND NOW, this 7 day of January, 2015, comes Patrick R. Reese, by counsel, William A. Fetterhoff, Esq., and presents the following:
1. This Emergency Application For Stay of Grand jury Proceedings is filed pursuant to Pa.R.A.P. 3309(d) and Chapter 17.
2. The Applicant has been subpoened by the Special Prosecutor to appear and testify before the Thirty-Fifth Statewide Investigating Grand Jury on January 12, 2015.
3. Orderly review by the Supreme Court of the companion Emergency Application For Leave To File Original Process and Emergency Application For Extraordinary Relief cannot occur prior to January 12, 2015.
4. The appointment of the Special Prosecutor in this matter was without any authority under Pennsylvania law, as set forth in the companion Emergency Application For Extraordinary Relief. The Applicant has accordingly presented a meritorious Application.
5. In the absence of a stay, the Applicant's opportunity to secure relief, or even consideration of any entitlement to relief, will be frustrated, and he will suffer the immediate and irreparable harm of being compelled to testify pursuant to subpoena issued by a Special Prosecutor appointed without lawful authority.
6. Determination by the Supreme Court of the legality of the office of Special Prosecutor and any legal authority for the appointment of the Special Prosecutor is a matter of immediate and substantial public importance and interest.
WHEREFORE, it is requested that the Supreme Court issue a stay of the proceedings of the Thirty-Fifth Statewide Investigating Grand Jury as related to the matters being presented to that Grand Jury by the Special Prosecutor and described in the companion Emergency Application For Extraordinary Relief.
Respectfully submitted,
/s/_________
William A. Fetterhoff, Esq.
Fetterhoff and Zilli
218 Pine Street
Harrisburg, PA 17101
Telephone: 717 232-7722
FAX: 717 233-4965
E-mail: wfetterhoff@live.com
PA Supreme Court ID 23148
Attorney for Patrick R. Reese
CERTIFICATE OF SERVICE
Pursuant to Pa.R.A.P. 121 and 122, the undersigned certifies that a true and correct copy of the foregoing document was served on the individual listed below on the date indicated by e-mail and first class United States mail.
Thomas E. Carluccio, Esq.
Special Prosecutor
1000 Madison Avenue
Norristown, PA 19403
E-mail: mailto:tomc3@comcast.net
Telephone: (484) 674-2899
/s/_________
William A. Fetterhoff, Esq.
Fetterhoff and Zilli
218 Pine Street
Harrisburg, PA 17101
Telephone: 717 232-7722
FAX: 717 233-4965
E-mail: wfetterhoff@live.com
PA Supreme Court ID 23148
Attorney for Patrick R. Reese
SUPREME COURT OF PENNSYLVANIA NO. 2 MM 2015
MONTGOMERY COUNTY COMMON PLEAS M.D. 2644-2012
SEALING ORDER
AND NOW, this 9th day of January, 2015, it is hereby ORDERED, that the attached Opinion of January 9, 2015 be filed under seal with the Supreme Court of Pennsylvania until further Order of this Court.
BY THE COURT:
/s/_________
WILLIAM R. CARPENTER, J.
Supervising Judge
OPINION
CARPENTER J.
JANUARY 9, 2015
FACTUAL AND PROCEDURAL HISTORY
Patrick R. Reese, Supervisory Special Agent for the Pennsylvania Office of the Attorney General ("OAG") was subpoenaed to testify before the Thirty-Fifth Statewide Investigating Grand Jury on January 12, 2015. In response to this subpoena, on January 7, 2015, Special Agent Reese filed an Emergency Application for Extraordinary Relief ("Emergency Application") currently before the Pennsylvania Supreme Court, seeking to stay the Thirty-Fifth Statewide Investigating Grand Jury proceedings based upon his allegation that the appointment of the Special Prosecutor, Thomas E. Carluccio, by me, as the Supervising Judge of the Thirty-Fifth Statewide Investigating Grand Jury, was improper.
Special Agent Reese seeks to vacate the order appointing Special Prosecutor Carluccio, prohibit enforcement of all subpoenas issued by the Special Prosecutor and further prohibit issuance of any report or presentment by the Thirty-Fifth Statewide Investigating Grand Jury. See, Motion for Extraordinary Relief 1/7/15, Wherefore clause, p. 9. Special Agent Reese's Emergency Application should be denied based upon his lack of standing; and even if he does have standing, his Emergency Application should be denied because a supervising judge of a statewide grand jury has the inherent authority to appoint a special prosecutor.
This Emergency Application was never served upon me. I had no knowledge of it until | was made aware of it by the Pennsylvania Supreme Court. Not only was the basic and common curtesy of properly serving this Emergency Application upon me ignored; but also, counsel never presented any aspect of this matter to me for adjudication. This matter should have come before me as a motion to quash a grand jury subpoena. Perhaps counsel was trying to make an end run around the possibility that such a motion would be denied, and would not be presently appealable as an order denying a motion to quash is considered interlocutory. In re Dauphin County Fourth Investigating Grand Jury, 596 Pa. 378, 943 A.2d 929 (Pa. 2007), the Pennsylvania Supreme Court discussed the interlocutory nature of an order denying a motion to quash, and the proper procedure for challenging such an order as follows:
As a general rule, an order denying a motion to quash a subpoena is considered interlocutory and not subject to immediate appeal. One seeking to challenge the propriety of a grand jury subpoena must generally choose between complying with the subpoena and litigating the validity through contempt proceedings. Requiring the choice between compliance with the subpoena and the possibility of contempt preserves the interest in expeditious grand jury proceedings.Id., 943 A.2d 929, 934 - 935 (Pa. 2007) (internal quotation marks and citations omitted). By filing this Emergency Application rather than a motion to quash, Special Agent Reese is trying to bypass these concerns, and get directly in front of the Pennsylvania Supreme Court without following the proper procedure, and arguably without the proper standing.
[W]e have consistently held that the necessity for expedition in the administration of the criminal law justifies putting one who seeks to resist the production of desired information to a choice between compliance with a trial court's order to produce prior to any review of that order, and resistance to that order with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal. Further, the approach facilitates development of an adequate factual record in support of the reasons supporting resistance to the subpoena.
By way of a brief background, on May 29, 2014, I, as Supervising Judge of the Thirty-Fifth Statewide Investigating Grand Jury, found that there were "reasonable grounds to believe a further more substantive investigation" into allegations that statewide Grand Jury secrecy may have been compromised was warranted, and on that date I appointed Special Prosecutor Carluccio. The May 29, 2014 Order followed an in camera proceeding which established that there was a leak of secret Grand Jury information and that the leak most likely came from the Office of the Attorney General. Accordingly, I determined that the appointment of a Special Prosecutor was necessary and appropriate.
Special Agent Reese was served with a subpoena to appear and testify on January 12, 2015, before the Thirty-Fifth Statewide Grand Jury. On January 7, 2015, Special Agent Reese filed the Emergency Application for Emergency Relief currently before the Pennsylvania Supreme Court.
ISSUES
I. Whether Special Agent Reese lacks standing to bring this action.
II- Whether the appointment of Special Prosecutor Carluccio was proper.
III. Whether an unjust result will occur if the requested relief is granted.
DISCUSSION
I. Special Agent Reese lacks standing to bring this action.
Special Agent Reese was subpoenaed to testify before the Thirty-Fifth Statewide Investigating Grand Jury, and claims that by virtue of this subpoena he has standing to challenge the legality of the office of Special Prosecutor, relying on Gwinn v. Kane, 339 A.2d 838 (Pa.CmwIth. 1975).
Generally, a quo warranto action can only be instituted by the Attorney General or by the local district attorney. A private person will have standing to bring a quo warranto action only if that person has a special right or interest in the matter, as distinguished from the right or interest of the public generally, or if the private person has been specially damaged. Spykerman v. Levy, 491 Pa. 470, 485-86, 421 A.2d 641, 649 (1980).
In Gwinn v. Kane, the Pennsylvania Commonwealth Court concluded that a plaintiff, who had been indicted by a special prosecutor the Attorney General appointed to investigate bribery and corruption in the awarding of public contracts, had standing to bring a quo warranto action to challenge the appointment. The same concerns or "special right or interest" is not present in this case, where Special Agent Reese has merely been called to testify as a witness before the Thirty-Fifth Statewide Investigating Grand Jury.
If all subpoenaed witnesses who did not want to testify before the grand jury could file a quo warranto action with the Pennsylvania Supreme Court rather than a motion to quash with the Statewide Supervising Grand Jury Judge if he or she believed it would result in an unfavorable ruling, then all those similarly situated could make an end run around the process and procedure set forth by the Pennsylvania Supreme Court in In re Dauphin County Fourth Investigating Grand Jury, 596 Pa. 378, 943 A.2d 929 (Pa. 2007).
II. The appointment of Special Prosecutor Carluccio was proper.
My authority for the appointment of a special prosecutor was based upon the case of In re Dauphin County Fourth Investigating Grand Jury, 610 Pa. 296, 19 A.3d 491 (2014). This case dealt with the appointment of an special prosecutor in connection with alleged grand jury leaks, and the Court stated that, "[w]hen there are colorable allegations or indications that the sanctity of the grand jury process has been breached and those allegations warrant investigation, the appointment of a special prosecutor to conduct such an investigation is appropriate. And, even where the investigations of special prosecutors do not lead to prosecutable breaches of secrecy, they may provide insight into the often-competing values at stake, as well as guidance and context so that prosecutors and supervising judges conducting future proceedings may learn from the examples." Id. at 504.
The Court explained the vital role a supervising judge in regard to the grand jury process and emphasized the "[t]he very power of the grand jury, and the secrecy in which it operates, call for a strong judicial hand in supervising the proceedings" Id. at 503. The Court further explained as follows:
We are cognizant that the substantial powers exercised by investigating grand juries, as well as the secrecy in which the proceedings are conducted, yield[ ] the potential for abuses. The safeguards against such abuses are reflected in the statutory scheme of regulation, which recognizes the essential role of the judiciary in supervising grand jury functions.Id. at 503 - 504 (citing from In re Twenty-Fourth Statewide Investigating Grand Jury, 589 Pa. 89, 907 A.2d 505, 512 (2006).
Thus, Pennsylvania's grand jury process is 'strictly regulated,' and the supervising judge has the singular role in maintaining the confidentiality of grand jury proceedings. The supervising judge has the continuing responsibility to oversee grand jury proceedings, a responsibility which includes insuring the solemn oath of secrecy is observed by all participants.Id. at 504 (citations and internal quotation marks omitted).
The In re Dauphin County Court cited two cases that involved the appointment of a special prosecutor when there were allegations of grand jury leaks. The Court first cited to a Lackawanna Common Pleas Court case, In re County Investigating Grand Jury VIII (Lack. Com. PI. 2005).
In that case there were allegations made, including, that e-mail communications had been exchanged between the Lackawanna District Attorney's Office and a newspaper reporter that divulged grand jury information, that a grand jury witness had been contacted by the reporter a short time after the witness appeared before the grand jury and was questioned about private matters that had been disclosed only to the grand jury. In re Dauphin County, 19 A.3d at 504. A preliminary review by the common pleas court judge verified only the existence of the emails that were exchanged between the reporter and a member of the District Attorney's office during the time the grand jury was conducting the relevant investigation. It was based upon this review that the common pleas court judge appointed a special prosecutor to investigate the allegations of a grand jury leak. Id.
The Pennsylvania Supreme Court in In re Dauphin County cited an additional example involving a special prosecutor in connection with alleged grand jury leaks and the complex interest and values implicated in an appointment of an special prosecutor. The Court cited to Castellani v. Scranton Times, 598 Pa. 283, 956 A.2d 937 (2008). In Castellani, the supervising judge appointed a special prosecutor to investigate allegations of grand jury leaks in connection with a statewide investigating grand jury tasked with investigating allegations of abuse of the county prisoners by the prison guards. In re Dauphin County, 19 A.3d at 506.
Not only is there strong precedent that permits a supervising judge to appoint a special prosecutor when there are allegations of grand jury leaks; but also, at the time I appointed the Special Prosecutor on May 29, 2014, by way of a court order, which was delivered to Chief Justice Ronald D. Castille, I wrote a letter to Chief Justice Castille. In that letter, I explained what I had done and I ended the letter with the following language, "Please advise if you feel that I am in error or have exceeded my authority as the Supervising Grand Jury Judge." See, Exhibit "A", Letter dated May 29, 2014 to Chief Justice Castille. All of my letters to Chief Justice Castille have concluded with similar language. I have never been informed that I erred or exceeded my authority.
Additionally, Special Agent Reese argues in his Emergency Motion that "[t]here was no necessity for the appointment of a special prosecutor I this matter, since, according to publicly known facts several count District Attorneys had jurisdiction to investigate any 'leak' by the OAG and prosecute any crime found to have been committed." See, Emergency Motion for Extraordinary Relief 1/7/15 p. 8 ¶19. Special Agent Reese is only correct to the extent that under the Grand Jury Act, Section 4551(d), 42 Pa.C.S.A, provides that "[i]n any case where a multicounty investigating grand jury returns a presentment the supervising judge shall select the county for conducting the trial from among those counties having jurisdiction." 42 Pa.C.S. § 4551(d). However, at the time of the appointment of Special Prosecutor Carluccio there was no clear indication which county might ultimately have jurisdiction to prosecute criminal charges. It wasn't even known whether an investigation into the leak would have resulted in criminal charges. It could have resulted in a finding of contempt. Therefore, it was not clear which county would have been appropriate to investigate the leak. Asking a county District Attorney to use the resources of their office to investigate a matter for which they might never have jurisdiction is simply not appropriate.
The Supervising Judge of a Statewide Investigating Grand Jury must have the inherent authority to appoint a special prosecutor when appropriate. The Supervising Judge of a Statewide Investigating Grand Jury must have the inherent authority to use the resources of that Grand Jury to investigate breaches of grand jury secrecy. Without the inherent authority of the Supervising Judge to appoint a special prosecutor and use the resources of the grand jury, leaks of secret grand jury materials by members of the OAG would not be properly and timely addressed. Additionally, the Supervising Judge would be severely hampered in carrying out the duties of the position as Supervising Judge.
III. An unjust result will occur if the requested relief is granted.
Finally, if relief were to be granted, the result would be unjust. The maximum term of the Thirty-Fifth Statewide Investigating Grand Jury expires on January 16, 2015. Granting the requested relief would forever prevent the Thirty-Fifth Statewide Investigating Grand Jury from ever hearing the testimony of Special Agent Reese. That would be unjust. This Grand Jury has heard the testimony of all of the other relevant witnesses in this matter. Asking Special Agent Reese to tell the truth before the Thirty-Fifth Statewide Investigating Grand Jury is not prejudicial to him. Rather, it allows the Thirty-Fifth Statewide Investigating Grand Jury to finish its work regarding the allegation of the leak of secret Grand Jury information. A law enforcement officer such as a Special Agent should honor a subpoena and should tell the truth.
CONCLUSION
I respectfully submit that this Emergency Application for Extraordinary Relief be denied.
BY THE COURT:
/s/_________
WILLIAM R. CARPENTER, J.
SUPERVISING JUDGE OF THE THIRTY
FIFTH STATEWIDE INVESTIGATING
GRAND JURY
EXHIBIT "A"
May 29, 2014 The Honorable Ronald D. Castille
Chief Justice of Pennsylvania
Supreme Court of Pennsylvania
1818 Market Street, Suite 3730
Philadelphia, PA 19103
Re: Statewide Investigating Grand Juries Dear Chief Justice:
Enclosed you will find an Order appointing a Special Prosecutor to investigate an allegation that secret Grand Jury information from a prior Grand Jury was released by someone in the Attorney General's Office.
As the current supervising Grand Jury Judge, this matter was brought to my attention. My preliminary review included in camera sealed testimony from two individuals with knowledge.
I have decided that the matter is important enough to appoint a Special Prosecutor, Thomas E. Carluccio, Esquire. He is a former prosecutor, served in the Department of the Attorney General in Delaware for fourteen years and a Special Assistant United States Attorney. In addition Tom has done Grand Jury work, and is honest, capable and reliable.
Please call me if you would like to discuss this matter further.
Please advise if you feel that I am in error or have exceeded my authority as the Supervising Grand Jury Judge. Sincerely /s/
William R. Carpenter, J.
Supervising Judge
WRC/cns
Cc. Thomas E. Carluccio, Esquire
CERTIFICATE OF SERVICE
I, William R. Carpenter, Supervising Judge of the 35th Statewide Investigating Grand Jury, certify that a true and correct copy of the attached Opinion of January 9, 2015 was forwarded to the persons set forth below via First Class Mail on January 9, 2015.
/s/_________
WILLIAM R. CARPENTER, J.
Supervising Judge
Montgomery County Court of Common Pleas
P.O. Box 311
Norristown, PA 19404
Prothonotary Irene Bizzoso
Supreme Court of Pennsylvania
Pennsylvania Judicial Center
601 Commonwealth Avenue
Suite 4500
P.O. Box 62575
Harrisburg, PA 17106
William A. Fetterhoff, Esquire
218 Pine Street
Harrisburg, PA 17101
Thomas E. Carluccio, Esquire
Special Prosecutor
1000 Germantown Pike
Suite D3
Plymouth Meeting, PA 19462
ORDER
PER CURIAM
AND NOW, this 9th day of January, 2015, to the extent the Application for Stay seeks to stay enforcement of the subpoena issued to Petitioner by the Thirty-Fifth Statewide Investigating Grand Jury, it is GRANTED pending disposition of the Application for Extraordinary Relief.
ANSWER OF SPECIAL PROSECUTOR TO THE EMERGENCY APPLICATION FOR EXTRAORDINARY RELIEF OF PATRICK R. REESE
Thomas E. Carluccio, Special Prosecutor to the Investigatory Grand Jury hereby answers the Emergency Application for Extraordinary Relief filed by Patrick R. Reese, and states in support thereof as follows:
1. Admitted in part and Denied in part. It is admitted that the legal citations provided relate to the subject matter for which they assigned within this pleading. However, any assertion that such legal citations that together or separately dispositive to the underlying issues: (i) that the Supervising Judge of the Thirty-Fifth Statewide Investigating Grand Jury maintains the requisite legal authority to convene an investigation into allegations that statewide grand jury secrecy might have been compromised; (ii) that such legal authority was unconstitutional because it violated the separation of powers inherent in the Pennsylvania Constitution; and/or (iii) that the Supervising Judge did not maintain the requisite legal authority to appoint a Special Prosecutor - are all denied. To the contrary THE INVESTIGATING GRAND JURY ACT, and specifically 42 Pa.C.S. §4548(a) and § 4542 thereunder have both been appropriately met, as reflected in formal records and pleadings before this Honorable Court, and both the said Act and such documentation are conclusive to establishing that the Supervising Judge maintains legal authority to convene and oversee the subject Thirty-Fifth Statewide Investigating Grand Jury, and to appoint a Special Prosecutor thereto.
2.-21. (inclusive). Denied. The facts and events are denied as characterized by Reese in the underlying Application. By way of further answer, the facts and events set forth by Reese fail to raise a lawful claim against the Supervising Judge of the Thirty-Fifth Statewide Investigating Grand Jury maintains the requisite legal authority to convene an investigation into allegations that statewide grand jury secrecy might have been compromised as stated above.
WHEREFORE, the Emergency Application for Extraordinary Relief filed by Patrick R. Reese should be denied, under law and for events which effectively render such arguments should be denied.
/s/_________
Thomas E. Carluccio, Esquire
Attorney I.D. No. # 81858
Plymouth Greene Office Campus
1000 Germantown Pike, Suite D-3
Plymouth Meeting, PA 19464-2484
(484) 674-2899
Special Prosecutor of Investigating Grand Jury No. #35
DATED: 1/9/15
VERIFICATION
I, Thomas E. Carluccio, Esq. as Special Prosecutor to the Investigating Grand Jury No #35 appointed by the Pennsylvania Supreme Court, hereby state that after due diligence and investigation into the operative events underlying the subject matter of the Emergency Application for Extraordinary Relief filed of record with the Court by Patrick R. Reese, I hereby represent that the averments set forth in the foregoing Answer to the said Application are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities.
/s/_________
Thomas E. Carluccio, Esquire
Attorney I.D. No. # 81858
Plymouth Greene Office Campus
1000 Germantown Pike, Suite D-3
Plymouth Meeting, PA 19464-2484
(484) 674-2899
Special Prosecutor of Investigating Grand Jury No. #35
ANSWER OF SPECIAL PROSECUTOR TO THE EMERGENCY APPLICATION FOR LEAVE TO FILE ORIGINAL PROCESS OF PATRICK R. REESE
Thomas E. Carluccio, Special Prosecutor ("Respondent") to the Investigatory Grand Jury hereby answers the Emergency Application for Leave to File Original Process filed by Patrick R. Reese ("Applicant"), and states in support thereof as follows:
1. to 4. (inclusive) Admitted in part and Denied in part. It is admitted that the legal citations provided relate to the subject matter for which they assigned within this pleading. However, any assertion that such legal citations taken, together or separately, are dispositive to the underlying rights and standing of the Applicant to file this pleading is denied.
WHEREFORE, the Emergency Application for Leave to File Original Process filed by Patrick R. Reese should be denied.
/s/_________
Thomas E. Carluccio, Esquire
Attorney I.D. No. # 81858
Plymouth Greene Office Campus
1000 Germantown Pike, Suite D-3
Plymouth Meeting, PA 19464-2484
(484) 674-2899
Special Prosecutor of Investigating Grand Jury No. #35
VERIFICATION
1, Thomas E. Carluccio, Esq. as Special Prosecutor to the Investigating Grand Jury No #35 appointed by the Pennsylvania Supreme Court, hereby state that after due diligence and investigation into the operative events underlying the subject matter of the Emergency Application for Leave to File Original Process filed of record with the Court by Patrick R. Reese, I hereby represent that the averments set forth in the foregoing Answer to the said Application are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. A. §4904 relating to unsworn falsification to authorities.
/s/_________
Thomas E. Carluccio, Esquire
Attorney I.D. No. # 81858
Plymouth Greene Office Campus
1000 Germantown Pike, Suite D-3
Plymouth Meeting, PA 19464-2484
(484) 674-2899
Special Prosecutor of Investigating Grand Jury No. #35
ANSWER OF SPECIAL PROSECUTOR TO THE EMERGENCY APPLICATION FOR STAY OF GRAND JURY PROCEEDINGS OF PATRICK R. REESE
Thomas E. Carluccio, Special Prosecutor ("Respondent") to the Investigatory Grand Jury hereby answers the Emergency Application for Stay of Grand Jury Proceedings filed by Patrick R. Reese ("Applicant"), and states in support thereof as follows:
1. Admitted.
2. Admitted.
3. Denied. Respondent lacks sufficient knowledge or information to form a belief as to the truth of the allegations of this Paragraph, and therefore deny the same.
4. Denied. It is denied that the appointment of a Special Prosecutor in this matter was done without legal authority. To the contrary such appointment was made consistent with THE INVESTIGATING GRAND JURY ACT, and consistent with the plenary supervisory authority afforded under law and granted to the subject Supervising Judge, as occurred here, who undertook the appointment of the Special Prosecutor in the underlying matter. As such, it is denied the Applicant has presented a meritorious Application.
5. Denied. Respondent lacks sufficient knowledge or information to form a belief as to the truth of the allegations of this Paragraph, and therefore deny the same. By way of further answer, the Respondent is not aware of any injury or damage that would be caused Applicant in testifying before the Thirty-Fifth Investigating Grand Jury under the subpoenas issued him.
6. Denied. It is denied the this Honorable Court's determination on the legality of the appointment the Special Prosecutor is a matter of immediate concern and of substantial public interest. To the contrary the appointment of the Special Prosecutor should not be at issue warranting immediate review.
WHEREFORE, the Emergency Application for Stay of Grand Jury Proceedings filed by Patrick R. Reese should be denied.
/s/_________
Thomas E. Carluccio, Esquire
Attorney I.D. No. # 81858
Plymouth Greene Office Campus
1000 Germantown Pike, Suite D-3
Plymouth Meeting, PA 19464-2484
(484) 674-2899
Special Prosecutor of Investigating Grand Jury No. #35
VERIFICATION
I, Thomas E. Carluccio, Esq. as Special Prosecutor to the Investigating Grand Jury No #35 appointed by the Pennsylvania Supreme Court, hereby state that after due diligence and investigation into the operative events underlying the subject matter of the Emergency Application for Stay of Grand Jury Proceedings filed of record with the Court by Patrick R. Reese, I hereby represent that the averments set forth in the foregoing Answer to the said Application are true and correct to the best of my knowledge, information and belief. 1 understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities.
/s/_________
Thomas E. Carluccio, Esquire
Attorney I.D. No. # 81858
Plymouth Greene Office Campus
1000 Germantown Pike, Suite D-3
Plymouth Meeting, PA 19464-2484
(484) 674-2899
Special Prosecutor of Investigating Grand Jury No. #35
MEMORANDUM OF LAW IN SUPPORT OF ANSWERS OF SPECIAL PROSECUTOR TO THE FOLLOWING FILINGS OF RECORD OF PATRICK R. REESE:
1. THE EMERGENCY APPLICATION FOR EXTRAORDINARY RELIEF
2. THE EMERGENCY APPLICATION FOR STAY OF GRAND JURY PROCEEDINGS
3. THE EMERGENCY APPLICATION FOR LEAVE TO FILE ORIGINAL PROCESS
Thomas E. Carluccio, Special Prosecutor to the Investigatory Grand Jury hereby submits this Memorandum of Law in support of his answers to three (3) pleadings of filed by Patrick R. Reese, being: (i) the Emergency Application for Extraordinary Relief; (ii) the Emergency Application for Stay of Grand Jury Proceedings; and (iii) the Emergency Application for Leave to File Original Process (collectively hereinafter sometimes referenced, the "Claims").
I. BACKGROUND
Patrick R. Reese ("Reese") the Applicant hereunder has filed of record the three (3) aforementioned pleadings, all of which are designed to avoid his appearance and testimony before the Thirty-Fifth Investigating Grand Jury under subpoena scheduled on 1/12/15. In seeking to avoid testifying Reese has adopted a tact of challenging the subpoena requiring his 1/12/15 testimony, the legal authority of the Supervising Judge of the Thirty-Fifth Statewide Investigating Grand Jury to empanel and supervise the Thirty-Fifth Investigating Grand Jury, to appoint a Special Prosecutor thereto, and to seek this Honorable Court's immediate review.
Supervising Judge, William R. Carpenter, has issued his Opinion of record with this Court on 1/9/15.
Thomas E. Carluccio, Esq., as appointed Special Prosecutor has timely filed his Answers to the three (3) Applications, and presents this Legal Memorandum in support thereof.
II. ARGUMENT
A. Reese lacks standing to bring a Quo Warranto Action as expressed or implied in his Claims.
In the interest of judicial economy, the Special Prosecutor adopts in full the discussion and legal analysis set forth in Supervising Judge Carpenter's Opinion as dispositive on the issues raised by Reese in his Claims.
The case law cited by Supervising Judge Carpenter is acknowledged to be prevailing law, and provides that an individual does not possess proper standing to undertake a Quo Warranto Action unless they distinguish themselves to maintain a special right or interest from that of the general public. Here, Reese fails to distinguish himself as required. His only "damage" or special interest" is an interest to avoid testifying before an investigating grand jury, where to do so has not been shown to be overzealously sought by the Special Prosecutor nor would result in damage to Reese.
Accordingly, is clear that Reese has a lack of standing to pursue a Quo Warranto Action in this matter.
B. The appointment of Special Prosecutor Carluccio was proper.
In short, both statutory and case law, including without limitation 42 §4544 of THE INVESTIGATING GRAND JURY ACT are clear that upon Order of the Pennsylvania Supreme Court to empanel a multicounty investigating grand jury, the designated Supervising Judge has the legal authority and plenary supervising authority to appoint a Special Prosecutor. All requirements under 42§4544, including without limitation the Application of the Attorney General for an Order to convene a multicounty investigating grand jury, an Order of the Supreme Court to such effect, designation of a Supervising Judge, and his/her appointment of a Special Prosecutor are all appropriately and lawfully found in the underlying matter.
Further, there is sufficient legal precedent for a Supervising Judge to appoint a special prosecutor and/or oversee grand jury proceedings. See In re Dauphin County Fourth Investigating Grand Jury, 610 Pa. 296, 19 A.3d 491 (2014); In Re Twenty-Fourth Statewide Investigating Grand Jury, 907 A.2d 505 (Pa. 2006); In re June 1979 Allegheny County Investigating Grand Jury, 415 A.2d 73, 78 (Pa. 1980). Castellani v. The Scranton Times, 956 A.2d 937 (PA. 2008).
Again, Supervising Judge Carpenter's legal analysis, in addition to the above, is adopted here as though more fully set forth herein.
In view of the foregoing, there was no improprieties in both the authority of Supervising Judge Carpenter, and in his subsequent appointment of Special Prosecutor Carluccio which warrant a review of the concern, and would lead to a recognized lawful basis upon which the subpoena served upon Reese should be quashed. As such, his testimony should proceed without further incident.
C. A subpoena is an appropriate power within the authority afforded the Special Prosecutor in furtherance of his duties to undertake the investigation in this matter; and there are no legal defects in the issuance of the subpoena serviced upon Reese in this matter.
The authority of a Special Prosecutor to utilize the power of a subpoena on behalf of an investigating grand jury is clear. 42 Pa.C.S. §4542 provides authority to the Special Prosecutor to compel the attendance of investigating witnesses, and provides in relevant part as follows:
§4542 Investigative resources of the grand jury
"The power to compel the attendance of investigating witnesses; the power to compel the testimony of investigating witnesses under oath; the power to take investigating testimony from witnesses who have been granted immunity; the power to require the production of documents, records and other evidence;. . ."
In addressing the authority to subpoena a witness, Judge Savitt adroitly opined in his seminal publication, Pennsylvania Grand Jury Practice, quoted in IN RE: Special Investigating Grand Jury of April 26, 1984, 37 PA.D&C3d516) 1986 at page 520:
"It can be seen from a reading of these excerpts from the act that broad subpoena power is vested in the investigating authority. The rationale is apparent. Without such authority, how could a prosecutor effectively investigate and ferret out crime? To follow the narrow construction that appellants desire would have a chilling effect on any and all types of investigation. It would defeat the very purpose of the act." Judge Savitt, Pennsylvania Grand Jury Practice, §21.04(A)(3) at p. 92-93, §21.04(C)(3) at p. 96 (1983).
In conclusion, it is irrefutable that the Special Prosecutor at all times material to this concern maintained the requisite authority to issue a subpoenas to witnesses, and under the facts and events associated with the Special Prosecutor's issuance service of a subpoena in this matter, the testimony of Reese before the Thirty-Fifth Investigating Grand Jury is to be appropriately compelled.
D. There is no unjust result to Reese should his Claims be denied.
As stated in the answers to the Claims of Special Prosecutor Carluccio, the only real issue confronting Reese is a subpoena for his appearance to testify before the Thirty-Fifth Investigating Grand Jury. Contrary to his assertions, there are no immediate concerns nor substantial public interests that compel an emergency review of the appointment of the Special Prosecutor, nor warranting that the subpoena be quashed. Further, as stated, Reese has articulated no damages to him personally in honoring the subpoena and offering testimony. As such, his testimony should proceed without further incident.
III. CONCLUSION
For the foregoing reasons, and under both the statutory and case law authority referenced in Supervising Judge Carpenter's Opinion dated 1/9/2015, together with that offered herein, and in acknowledgement that the Special Prosecutor appropriately maintains the requisite authority under law to issue a subpoena, as was done here -the Application should be denied.
/s/_________
Thomas E. Carluccio, Esquire
Attorney I.D. No. # 81858
Plymouth Greene Office Campus
1000 Germantown Pike, Suite D-3
Plymouth Meeting, PA 19464-2484
(484) 674-2899
Special Prosecutor of Investigating Grand Jury No. #35
CERTIFICATE OF SERVICE
I, Thomas E. Carluccio, Esquire do hereby certify that a true and correct copy of the following:
1. Answer of Special Prosecutor to Emergency Application for Extraordinary Relief;all in response to the previous filings of Patrick R. Reese has been filed of record with the Pennsylvania Supreme Court on the 9th day of January, 2015, and copies of the filed pleadings have been directed on the 9th day of January, 2015 by first class U.S. Mail, postage prepaid, to all parties in interest, as follows:
2. Answer of Special Prosecutor to the Emergency Application for Stay of Grand Jury Proceedings;
3. Answer of Special Prosecutor to the Emergency Application for Leave to File Original Process; and
4. Memorandum of Law in Support of the Answers of the Special Prosecutor to the aforementioned pleadings
William A. Fetterhoff, Esq.
218 Pine Street
Harrisburg, PA 17101
The Hon. William R. Carpenter
Court of Common Pleas of Montgomery County
P.O. Box 311
Norristown, PA 19404-0311
/s/_________
Thomas E. Carluccio, Esquire
Attorney I.D. No. # 81858
Plymouth Greene Office Campus
1000 Germantown Pike, Suite D-3
Plymouth Meeting, PA 19464-2484
(484) 674-2899
Special Prosecutor of Investigating Grand Jury No. #35
ORDER
PER CURIAM
AND NOW, this 24th day of April, 2015, the Application for Leave to File Original Process is GRANTED, and the Application for Extraordinary Relief is DENIED. See In re Thirty-Fifth Statewide Investigating Grand Jury, ___ A.3d ___, 2015 WL 1441830 (Pa. 2015). The stay entered on January 9, 2015, is DISSOLVED.