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SUBPOENA SERVED BY PENNSYLVANIA CRIME COMMISSION ON JUDICIAL INQUIRY AND REVIEW BOARD (12/28/83)

decided: December 28, 1983.

IN RE: SUBPOENA SERVED BY THE PENNSYLVANIA CRIME COMMISSION ON THE JUDICIAL INQUIRY AND REVIEW BOARD, DATED JUNE 7, 1983, NUMBER 83194. IN RE: PETITION FOR ENFORCEMENT OF A SUBPOENA TO THE PENNSYLVANIA JUDICIAL INQUIRY AND REVIEW BOARD


Original jurisdiction in the cases of In Re: Subpoena served by the Pennsylvania Crime Commission on the Judicial Inquiry and Review Board, dated June 7, 1983, Number 83194, and In Re: Petition for Enforcement of a Subpoena to the Pennsylvania Judicial Inquiry and Review Board.

COUNSEL

Donald E. Johnson, Chief Counsel, with him John J. Contino, Counsel, and Joan Weiner, Special Counsel, for Pennsylvania Crime Commission.

Perry S. Bechtle, with him Susan Warnock Thomas, for Judicial Inquiry and Review Board.

President Judge Crumlish, Jr. Memorandum Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 79 Pa. Commw. Page 376]

This case has focused on major legal issues heretofore unresolved primarily because of their novelty in judicial administration.

[ 79 Pa. Commw. Page 377]

Never before have the effects of an Article of the Pennsylvania Constitution*fn1 which purports to remedy evils found in the Judicial Branch been delineated nor the method of executing it enunciated in the newly-established unified judiciary.

Deeply-concerned constitutional delegates brought forth the creation of a body whose sole purpose was to examine and pass upon the behavior of a member of the judiciary whose conduct appeared to derogate the administration of justice. To insure its impartiality the delegates to the Convention specifically bestowed upon the mechanism, in its investigation and findings, the cloak of confidentiality. Seemingly, it was the best of both worlds by protecting the innocent and exposing the malefactor and his misdoings. This case for the first time tests its viability. Three significant unanticipated factors precipitated this litigation:

1) The target of the inquiry is a Supreme Court Justice;

2) A statutory body, the Pennsylvania Crime Commission under the aegis of its prescribed mandate attempted to circumvent the protective devices of the Judicial Inquiry and Review Board; and

3) the Chief Justice undertook, with or without direction of the Supreme Court, an attempt to initiate an investigation thus undermining the constitutional authority of the Judicial Inquiry and Review Board.

Presently before this Court for consideration and disposition are the motion of the Pennsylvania Judicial Inquiry and Review Board (Board) to quash a subpoena of the Pennsylvania Crime Commission (Commission) (No. 1672 C.D. 1983), the Board's preliminary objections thereto and the Crime Commission's

[ 79 Pa. Commw. Page 378]

    application for enforcement of its previously-issued subpoena (No. 1810 C.D. 1983). We heard three days of testimony by (1) Alvin B. Lewis, Jr., Esq., a member of the Commission, (2) Richard A. Sprague, Esq., former Special Counsel to the Board, and (3) Richard E. McDevitt, Esq., Executive Director of the Board. Counsel made extensive persuasive argument.

Procedural and Substantive History

On July 6, 1983, this Court convened a hearing on the motion of the Judicial Inquiry and Review Board to quash the subpoena served on it by the Pennsylvania Crime Commission. On July 20, 1983, we scheduled a second hearing to consider the Crime Commission's motion to enforce the Commission subpoena. On September 15, 1983, pursuant to our September 8th Court order, a third and final hearing was held to clarify certain prior testimony and to elicit additional evidence. A stipulation of facts by the parties was submitted to the Court at the second hearing. The stipulations provided:*fn2

1. On June 7, 1983, the Pennsylvania Crime Commission, by its Chairman, Dean Roach, Commissioner Alvin B. Lewis, Jr., Commissioner Royal D. Hart and Executive Director Wallace P. Hay, issued a Pennsylvania Crime Commission subpoena to the Judicial Inquiry and Review Board, care of Richard E. McDevitt, Executive Director.

2. The subpoena was addressed to the Judicial Inquiry and Review Board, Three Penn Center Plaza, 15th and Market Streets, Philadelphia, Pennsylvania.

[ 79 Pa. Commw. Page 3794]

. On Monday, June 13, 1983, at 10:53 a.m., said subpoena was served upon Richard E. McDevitt, Esq., Executive Director of the Judicial Inquiry and Review Board at 1428 Three Penn Center Plaza, Philadelphia, Pennsylvania.

5. Said subpoena was served by Joseph V. Morace, who was then a Special Agent Supervisor of the Pennsylvania Crime Commission.

6. At the time of service of said subpoena, attached to said subpoena were copies of the Pennsylvania Crime Commission's Resolutions dated June 1, 1983, and June 2, 1983.

7. The Pennsylvania Crime Commission subpoena was returnable on the 28th day of June 1983 at 10:00 a.m. in St. Davids, Pennsylvania.

8. The subpoena called for the entire record of all proceedings including, but not limited to, testimonial transcripts and documents of the Judicial Inquiry and Review Board's investigation and hearings in the matter of Justice Rolf Larsen.

9. Between calendar dates May 8, 1983, and May 25, 1983, numerous articles and editorials were printed and appeared in The Philadelphia Inquirer newspaper, a publication of general circulation.

10. Said articles on said dates purported to deal with the Pennsylvania Judicial Inquiry and Review Board's investigation of Supreme Court Justice Rolf Larsen, the Board's permanent sealing of the record, and identifying many of the witnesses who testified in this matter.

11. Many, if not all, of the witnesses identified as testifying in this matter were high ranking public officials and candidates for public office.

[ 79 Pa. Commw. Page 38012]

. Any copies of said articles that the Commission introduces or references during this hearing are agreed, by and between parties, to be true and correct and authentic copies of the articles as they appeared in The Philadelphia Inquirer.

13. There is no stipulation between the parties as to the truth, accuracy and veracity of said allegations.

From the record developed, it appears that Supreme Court Justice Rolf Larsen has been under investigation by the Judicial Inquiry and Review Board and counsel appointed by former Chief Justice O'Brien for alleged judicial misconduct. As indicated by the stipulation of facts, a substantial portion of the alleged verbatim transcripts of the testimony addressed at the Review Board hearings appeared in various major newspapers. These articles, copies of which were entered into evidence in support of the enforcement proceeding, contain allegations about and references to Justice Larsen's conduct, which has shaken and continues to shake the public confidence in the administration of justice in this Commonwealth -- allegations of rampant racism, vote-fixing, political maneuvering, personal eccentricities, and the indiscreet, if not unlawful, use of the influence of his office for the political and personal benefit of his friends.

Substantive History

The Pennsylvania Crime Commission is a statutory creature made operational by legislative mandate pursuant to the provisions of the Pennsylvania Crime Commission Act.*fn3 As such, is it empowered to exercise only those powers and duties provided therein:

[ 79 Pa. Commw. Page 381]

(1) To inquire into organized crime and activities of persons engaged in or associated with organized crime.

(2) To inquire into public corruption and the activities of persons engaged in and associated with public corruption.

(3) To make a detailed written report of every completed investigation which may include recommendation for legislative or administrative action.

(6) Through its chairman, to call upon the department heads of State Government and State Agencies for such information and assistance as is needed to carry out the functions of the commission.

(7) To require the attendance and testimony of witnesses and the production of documentary evidence relative to any investigation which the commission may conduct in accordance with the powers given it. . . .

(11) To perform such other acts as are necessary for the proper functioning of the commission.

71 P.S. ยง 1190.4.

Thus, the Commission, by its legislative mandate, has two important functions: (1) to inquire into organized crime and public corruption, and (2) to submit a report of every completed investigation which, if required, would include a recommendation of legislative or administrative action.*fn4

The genesis of the Crime Commission's entry into this controversy, inspired by public clamor, blossomed

[ 79 Pa. Commw. Page 382]

    on May 25, 1983 when, at a meeting of the Crime Commission, the Commission, the Executive Director and the Chief Counsel, after reviewing The Philadelphia Inquirer's revelation of the alleged verbatim transcripts of testimony developed by the Board, decided by formal resolution to investigate the possibility of Justice Larsen's having engaged in "public corruption."*fn5

Mr. Lewis testified that, on the strength of the substance of the newspaper articles alone, the Commission believed it had the duty "to investigate the public corruption and activities of the witnesses before the Judicial Inquiry and Review Board and the first step was to obtain the transcripts." (N.T. 7/20/83, p. 23). Apparently, the Crime Commission was only interested in evidence of public corruption as defined in the statute and its purpose was not to obtain evidence of "organized crime," at least at the time of these hearings.*fn6 Having made the decision to investigate the alleged conduct of Justice Larsen as it was reported in the published transcripts of the Board and knowing that the ...


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