decided: May 30, 1980.
IN RE INVESTIGATING GRAND JURY OF PHILADELPHIA COUNTY. APPEAL OF EDWARD WASHINGTON
No. 80-3-374, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Philadelphia, at Misc. No. 799-16444
Francis X. Nolan, Philadelphia, for appellant.
Steven H. Goldblatt, Deputy Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Nix and Flaherty, JJ., concur in the result.
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On June 1, 1979, the President Judge of the Court of Common Pleas of Philadelphia issued an order granting an application by the district attorney for the empanelment of a county investigating grand jury pursuant to Section 3 of the Investigating Grand Jury Act, 19 P.S. § 267 [hereinafter: Act].*fn1 On June 22, 1979, the Commonwealth submitted to the supervising judge of that grand jury a notice that certain matters involving the Philadelphia School District should be brought to the attention of the grand jury pursuant to Section 9 of the Act, 19 P.S. § 273.
On August 27, 1979, the grand jury issued a subpoena duces tecum ordering Edward Washington, Director of Payroll for the Philadelphia Board of Education, to appear
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before it with various payroll records on September 4, 1979. Washington filed a motion to quash the subpoena which was denied by the supervising judge on October 4, 1979. The judge also refused to certify the order for interlocutory appeal pursuant to 42 Pa.C.S.A. § 702(b).
On October 11, 1979, Washington was served with a second subpoena duces tecum directing his appearance on October 15, 1979. Washington filed a petition for review in the nature of prohibition in this Court which we denied on December 26, 1979. In re: Investigating Grand Jury of Philadelphia, 487 Pa. 68, 408 A.2d 1099 (1979).
Washington was again subpoenaed on January 8, 1980. He filed a motion for a protective order in which he reiterated the claims advanced in his earlier motion to quash. The supervising judge denied this motion and held Washington in civil contempt for refusing to be sworn or affirmed before the grand jury. Washington appealed, but then discontinued the appeal when the supervising judge withdrew his contempt order after Washington agreed to be sworn. He appeared before the grand jury on January 14, 1980 and was sworn after a second motion for a protective order was denied. He refused to testify and was held in civil contempt. Washington appealed the contempt order to this Court and sought a stay of the order. The order was stayed by the writer on January 16, 1980 pending further order of the Supreme Court. The appeal was argued before this Court on March 3, 1980.
Washington challenges the legality of the grand jury and its power to subpoena urging that the Act pursuant to which it was empaneled is unconstitutional in that (1) it permits the empanelment of, Section 3 of the Act, 19 P.S. § 267, and investigation by, Section 9 of the Act, 19 P.S. § 273, a grand jury without compliance with the "constitutional" requirements for calling an investigating grand jury recently summarized in Commonwealth ex rel. Camelot v. Specter, 451 Pa. 370, 303 A.2d 203 (1973); and, (2) it constitutes an impermissible infringement on the power of the judiciary.
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Many years before the enactment of the Investigating Grand Jury Act of 1978 by the General Assembly, this Court adopted certain common law standards as prerequisites to the calling of an investigating grand jury. However, we never said or assumed these prerequisites were constitutionally mandated.
While Lloyd & Carpenter's Case, 5 Pa.L.J. 55, 3 Clark 188 (1845), referred to the Declaration of Rights, see particularly Pa.Const. Art. I, §§ 8 and 9, in setting forth the prerequisites, neither this decision nor any since has held the prerequisites were constitutionally mandated. Indeed, in McNair's Petition, 324 Pa. 48, 59, 187 A. 498, 503 (1936), this Court implied the prerequisites were not constitutionally mandated when we said the Legislature could broaden the scope of a grand jury investigation beyond that allowed by the common law.*fn2 Moreover, while this Court may properly establish such prerequisites in the absence of a legislative pronouncement, the Legislature, as the representative of the sovereign will of the people, Montgomery v. Martin, 294 Pa. 25, 143 A. 505 (1928), has the power to supersede those prerequisites, Appeal of Hawthorne, 488 Pa. 373 at 379-380, 412 A.2d 556 at 559 (1980) and its action, as given expression in the Investigating Grand Jury Act of 1978, may not be declared unconstitutional by this Court unless the Act " clearly, palpably and plainly " violates the Constitution. Abraham v. Shapp, 484 Pa. 573, 576, 400 A.2d 1249, 1250 (1979), and cases therein cited. It is important to note that we are not referred to any provision*fn3 of the Constitutions of
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this Commonwealth or of the United States guaranteeing individual rights which is necessarily violated by the Act or by a grand jury empaneled pursuant to and conducting an investigation allowed by the Act,*fn4 and we are not aware of any such violation. Hence, the first prong of Washington's attack on the constitutionality of the Act is rejected.
The argument that the Act is unconstitutional because it impermissibly infringes upon the powers of the judiciary requires an examination of the Act and the function of the judiciary at various stages of the proceedings because only if the judiciary's role is defined can we determine if its powers have been impermissibly abridged.
Section 3 of the Act, 19 P.S. § 267, states that the president judge of a court of common pleas "shall" issue an order granting an application for the convening of a grand jury if the application of the district attorney states "the convening of a county investigating grand jury is necessary because of the existence of criminal activity within the county which can best be fully investigated using the investigative resources of the grand jury." A refusal to grant the application is appealable to the "Chief Justice of the Supreme Court or such justice of the Supreme Court who is designated by rule to hear such appeals." No appeal provision from an order granting the application exists. Cf. In re: Application of Biester, 487 Pa. 438, 445 n. 7, 409 A.2d 848, 852 n. 7 (1979). If permission to convene the grand jury is granted, it may proceed to investigate a matter after it is brought to its attention by the district attorney or the court. Section 7 of the Act, 19 P.S. § 271. The investigation may proceed only after section 9 of the Act, 19 P.S. § 273, is complied with. This section requires the submission of a notice to the supervising judge which alleges that "the
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matter in question should be brought to the attention of the investigating grand jury because the investigative resources of the grand jury are necessary for proper investigation" and "that one or more of the investigative resources of the grand jury are required in order to adequately investigate the matter." After the notice is submitted and the matter is brought to the attention of the grand jury by the district attorney or the court pursuant to section 7 of the Act, 19 P.S. § 271, it begins its investigation of the matter and presumably, given the absence of any requirement of approval of the notice, may do so without any particular authorization by the supervising judge. The grand jury in conducting its investigation may then utilize its "investigative resources" to inquire into the matter which was brought to its attention subject to the limitation that the matter involved be an alleged offense "against the criminal laws of the Commonwealth." Section 7 of the Act, 19 P.S. § 271. Finally, section 6 of the Act, 19 P.S. § 270, authorizes discharge of a grand jury by the supervising judge when a determination is made that the grand jury is not conducting proper investigatory activity and such an order is subject to appellate review.*fn5 Obviously, such a discharge would normally occur only after an investigation was underway because only then could the investigation be improper.*fn6
The judiciary's function within the statutory scheme up to the point a grand jury begins exercising its powers is, hence, very limited.
First, Section 3 of the Act, 19 P.S. § 267, by the use of the term "shall"*fn7 mandates convening of a grand jury if the
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statement in the application is facially adequate under the terms of the Act.*fn8 Discretion exists only in examining the adequacy of the application. Once the president judge determines the application is adequate, he must grant it. But the Legislature has not necessarily usurped a judicial function by so mandating. The judiciary still determines the adequacy of the application as to the "statement" requirements in the application as established by the Legislature. Additionally, as will be seen, the exercise of the more traditional powers of the judiciary to supervise, control, and, indeed, discharge the grand jury are merely postponed, rather than exercised at the initial stage of empanelment. Moreover, while this procedure is vastly different than at common law, the mere empanelment of the grand jury affects no individual rights of our citizens and the mere postponement of judicial control over the grand jury until it begins its investigations is not a usurpation of the judicial functions.
Our interpretation of section 3 of the Act, 19 P.S. § 267, is fortified by the lack of any provisions in the Act for a hearing or affidavit to establish a factual basis for the statements in the application, for a right to appeal an order granting an application wherein the conclusions from facts established or set forth in an affidavit could be reviewed, and for standing to challenge an order granting such an application. In re: Application of Biester, supra. The absence of these clearly indicates the president judge merely evaluates the application's facial sufficiency to meet the
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"statement" requirements of the Act. In effect, grand juries may be empaneled on the representations of the district attorney which satisfy section 3 of the Act, 19 P.S. § 267.
Second, section 9 of the Act, 19 P.S. § 273, is only a notice provision and requires, similarly to section 3 of the Act, 19 P.S. § 267, mere allegations of, inter alia, matters to be investigated. Approval of the notice by the supervising judge is not required by the Act before the matter may be brought to the attention of the grand jury.*fn9 In effect, specific investigations may be brought to the attention of the grand jury without judicial approval. Here again the practice differs substantially from that which previously constituted the law of the Commonwealth, but, as with empanelments, the bringing of a matter to the attention of a grand jury effects no individual rights. In other words, it is not until the grand jury exercises its powers that our citizens are affected; hence, the empanelment and presentation of a matter for investigation to the grand jury are allowed to occur based on statements and allegations of the district attorney, and the function of the judiciary up to this point is limited to evaluating the facial adequacy under the Act of the application and notice.
The more traditional functions of the judiciary are brought to bear when the grand jury begins to exercise its powers. Once the grand jury exercises its powers, individuals affected by that exercise, see In re: Application of Biester, supra, may challenge the validity and adequacy of the statements by which empanelment was obtained, the validity and adequacy of the notice by which a matter was submitted to the grand jury, and the exercise of power by
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the grand jury toward the individual through a subpoena challenge. See Appeal of Thomas Hawthorne, supra; In re: Grand Jury Proceedings, 486 F.2d 85 (3rd Cir. 1973).
Any challenge to the empanelment statements and the submission notice necessarily brings to bear the more traditional functions of the judiciary over grand juries including the authority to discharge. Section 6 of the Act, 19 P.S. § 270. If a challenge to the statements or allegations of the application to empanel or the submission notice is made, the supervising judge is afforded discretion in evaluating the challenge. The judge may hear evidence from the challenger which is relevant to the validity of the statements or allegations. He may accept a factual affidavit, evidence, or factual representations of the district attorney through an in camera or, where appropriate, adversary hearing. The judge must then redetermine that the allegations and statements are adequate in terms of the Act and determine that they were made in good faith. In this context, good faith should not be found unless the statements and allegations were made as a result of information, rather than surmise, which could include tips, rumors, or evidence.*fn10 Cf. Appeal of Thomas Hawthorne, supra; Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). Furthermore, the information should support, inter alia, a reasonable conclusion of the possibility of criminal activity, Appeal of Thomas Hawthorne, supra; United States v. Williams, 552 F.2d 226 (8th Cir. 1977); United States v. Sisack, 527 F.2d 917 (9th Cir. 1976), to support the statements and allegations including the "existence of criminal activity . . . which can best be fully investigated using the investigative resources
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of the grand jury," section 3 of the Act, 19 P.S. § 267, and of which resources "one or more . . . are required in order to adequately investigate the matter." Section 9 of the Act, 19 P.S. § 273.
With this background, we now focus on the second prong of Washington's attack on the constitutionality of the Act. As previously indicated, we conclude the provision that the president judge must grant an application to empanel a grand jury, if it is facially adequate,*fn11 is merely a postponement of the exercise of the judicial authority over grand juries until empanelment and investigations are properly challenged. When this occurs, the supervising judge exercises judicial authority in accordance with the previouslymentioned standards, and, while the standards for empaneling a grand jury and allowing an investigation have been lessened to good faith allegations, the supervising judge still evaluates the allegations of the district attorney in accordance with identifiable standards*fn12 and supervises the activities of the grand jury. Appeal of Thomas Hawthorne, supra; In re: Grand Jury Proceedings, supra.
Hence, the Legislature has not dictated a conclusion to the courts, compare Commonwealth v. Sutley, 474 Pa. 256, 378 A.2d 780 (1977), nor given full control of grand juries to prosecutors since statements and allegations must be made in good faith and our courts exercise considerable control over the exercise of power by the grand jury. See In re: Grand Jury Proceedings, supra; Appeal of Thomas Hawthorne, supra. Thus, the judicial function has not been infringed upon, only the standards for empanelment of and
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investigations by the grand jury have changed.*fn13 Cf. United States v. Fein, 504 F.2d 1170 (2d Cir. 1974); United States v. Chiarizio, 388 F.Supp. 858 (D.Conn.1975); State v. Jackson, 110 Ariz. 383, 519 P.2d 848 (1974). Finally, to the extent that the lessening of the standards for empaneling a grand jury allows the subpoena power to be exercised by an entity which might be said to differ from prior grand juries in that less is necessary to empanel it and to allow it to exercise powers, this does not infringe upon a judicial function because conferring of subpoena power has traditionally been a power of the Legislature, cf. Commonwealth ex rel. Specter v. Freed, 424 Pa. 508, 228 A.2d 382 (1967); Commonwealth ex rel. Margiotti v. Orsini, 368 Pa. 259, 81 A.2d 891 (1951), and enforcement remains a judicial function.
Hence, we conclude the Act has not been shown to be an impermissible infringement on the judiciary.*fn14
Order affirmed, and the stay previously granted is vacated.