Petition for Review of Order of Commonwealth Court at No. 1650 C.D. 1984.
G. Alan Bailey, Norristown, John J. Contino, Pa. Crime Commission, Steven V. Turner, Philadelphia, for petitioner.
John Rogers Carroll, Philadelphia, for Semeraro.
Marion MacIntyre, Deputy Executive Atty. Gen., for respondent.
Nix, C.j., and Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., did not participate in the consideration or decision of this case. Nix, C.j., concurs in the result.
This is a petition for review of an order of the Commonwealth Court denying enforcement of a Pennsylvania Crime Commission subpoena. 42 Pa.C.S. § 723(a); Pa.R.A.P. 3331(a)(5). The Commission argues that the court erred in addressing the Respondent's relevancy objection as a basis for Respondent's refusal to answer the call of the subpoena. Assuming that this objection was not premature, however, the Commission argues that the court erred in the way it applied the law to the established facts. According to the Commission, if the evidence is correctly assessed according to the proper standard of relevance, the court's holding is against the weight of the evidence and an abuse of discretion.
As there is no dispute regarding the facts, they will be only briefly summarized. The Pennsylvania Crime Commission has undertaken several investigations into the practices of the Judicial Inquiry and Review Board, apparently in response to the Board's decisions not to recommend disciplinary action in certain cases. In connection with one of these investigations, the Commission determined that the Board had reviewed and dismissed charges of judicial misconduct arising out of the election campaign of Judge Anthony Semeraro, Respondent. A subpoena was served on Judge Semeraro, whose refusal to comply sparked the enforcement proceedings below. The court's refusal to enforce the subpoena generated this review.
The Commission's initial argument is that the Respondent's objections to the subpoena are not ripe for
judicial review, that objections to the relevancy of subpoenaed evidence must be asserted in response to particular questions when the witness appears. This argument may be dismissed out of hand. Ordinarily, a preliminary challenge to a subpoena will be dismissed and the witness ordered to appear, interposing objections to questions as they are propounded. This is so, however, not because any prior review of the subpoena is improper, but because in the ordinary case the subpoena will bear up under the minimal scrutiny to which it is subjected in an enforcement proceeding. We need not explain in detail the reasons for granting substantial deference to administrative agencies as to the enforcement of subpoenas issued in furtherance of their investigative function. These have been thoroughly set out in Pennsylvania Crime Commission v. Nacrelli, 5 Pa. Commw. 551 (1972) and the cases cited therein, particularly United States v. Morton Salt Co., 338 U.S. 632, 70 S.Ct. 357, 94 L.Ed. 401 (1950) and Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960) which were quoted at great length. These reasons may be summarized in a quotation from another case cited, Edge Ho Holding Corp., 256 N.Y. 374, 379, 176 N.E. 537, 539 (1931): "Investigation will be paralyzed if arguments as to materiality or relevance, however appropriate at the hearing, are to be transferred upon a doubtful showing as to the stage of a preliminary contest as to the obligation of the writ. Prophecy in such circumstances will step into the place that description and analysis may occupy more safely."
This policy of allowing wide latitude to administrative agencies to investigate matters within their authority has never been understood to preclude all preliminary questioning of the propriety of subpoenas. All of the cases cited by the Commission recognize that there can be circumstances where "a governmental investigation . . . may be of such a sweeping nature and so unrelated to the matter properly under inquiry as to exceed the investigatory power." ...