IN RE: FORTIETH STATEWIDE INVESTIGATING GRAND JURY
SUBMITTED: July 27, 2018
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY,
the Court are numerous petitions for review challenging the
public release of Report 1 of the 40th Statewide
Investigating Grand Jury, insofar as the report discloses
findings of criminal and/or morally reprehensible conduct on
the part of named petitioner-appellants. These individuals
contend that the grand jury's findings are not supported
by a preponderance of the evidence and are false or
misleading. Additionally, it is their position that they were
denied due process of law, and that the release of the
findings to the public -- under the authority of a
state-sanctioned, judicially approved grand jury -- would
impair their reputations in violation of their fundamental
litigation has progressed, this Court has found it necessary
to take measures to protect the identities of the
petitioner-appellants, at least until their constitutional
challenges have been finally resolved. Accordingly, we have
issued a series of orders that reflect our intentions in this
controversy remains at an interim stage. Presently, however,
the Court has determined that large portions of the grand
jury's report can be released to the public, without
compromising the petitioner-appellants' constitutional
rights, as long as sufficient measures are taken to continue
to protect their identities during the remaining process of
judicial review. Accordingly, in the Order attendant to this
opinion, set forth at Part VIII, we have provided that an
interim version of the grand jury report will be released,
containing temporary redactions solely to protect the
identities of those who have lodged challenges before us,
pending further order of this Court.
process of determining that an interim report should be
released, the Court has considered and resolved several
interrelated issues presented in common legal arguments
advanced by the petitioner-appellants across the appeals
pending at most of the above dockets. Our intent is to
facilitate the publication -- as expeditiously as possible --
of as full a final report as may be released consistent with
the protection of the petitioner-appellants' fundamental
rights secured by the Pennsylvania Constitution.
40th Statewide Investigating Grand Jury was convened in 2016
under the Investigating Grand Jury Act. The Pennsylvania
Attorney General initiated confidential grand jury
proceedings to investigate allegations of child sexual abuse
by individuals associated with six of the eight Pennsylvania
dioceses of the Roman Catholic Church, failure to make
mandatory reports, acts endangering the welfare of children,
and obstruction of justice by Church officials, community
leaders, and/or public officials. See, e.g., In
re 40th Statewide Investigating Grand Jury, No. 571 M.D.
2016, slip op. at 9 (C.P. Allegheny June 5, 2018).
As required by the Pennsylvania General Assembly, these
proceedings were conducted under the umbrella of secrecy
pertaining to investigating grand juries, subject to the
discretion of the supervising judge to permit the public
release of information. See 42 Pa.C.S.
to the expiration of its term, the 40th Statewide
Investigating Grand Jury submitted a report of the above
investigation to its supervising judge, the Honorable Norman
A. Krumenacker, III. See 42 Pa.C.S. §4552.
Significantly, the report is not generally couched in
conventional "investigatory" terms, such as by
allusion to the character and quality of the evidence
reviewed according to the application of a probable cause
standard. Rather, the introductory passages of the report
pronounce that the grand jury will identify over three
hundred "predator priests" by name and describe
their conduct in terms of "what they did -- both the sex
offenders and those who concealed them[, ] . . . shin[ing] a
light on their conduct, because that is what the victims
deserve." Report 1, at 2. The balance of the report
extensively furnishes detailed elaborations condemning the
conduct of the alleged predators and those within the Church
hierarchy who may have facilitated the abuses and/or failed
important to observe, early on, that the manner in which the
grand jury approached its report -- i.e., finding
facts and declaring that named individuals actually
perpetrated abhorrent acts -- is central to the legal
assessment of the many constitutional challenges to the
public release of the report, as discussed at length in Parts
II and III, below. In this regard, targeted condemnation of
named individuals is not inherent in the production of a
grand jury report, although reports sometimes have been used
in this fashion, and plainly the grand jurors believed that
it was essential to do so here. Nevertheless, grand jury
reports of this sort foster the most substantial
controversies, because they amplify the tension between the
grand jury's reporting function and the constitutional
rights of the individuals who are impugned in the report.
See, e.g., Petition of Davis, 257 So.2d
884, 887 (Miss. 1972) (depicting a critical grand jury report
as subjecting an individual to "a quasi official
accusation of misconduct resulting from secret ex parte
proceedings in which there is no opportunity available for
presenting a formal defense"); see also infra
grand jury report in issue is denominated "Report
1," and its submission triggered a statutory procedure
for review and publication. By law, the supervising judge was
required to examine the report and the confidential record of
the proceedings and to issue an order accepting and filing
the report as a matter of public record "only if the
report is based upon facts received in the course of an
investigation authorized by [the Investigating Grand Jury
Act] and is supported by the preponderance of the
evidence." 42 Pa.C.S. §4552(b) (emphasis
the statutory scheme allocates discretion to the supervising
judge to permit the submission of written responses by
individuals who are not indicted, but about whom a report is
critical. See id. §4552(e). Again, in the
discretion of the supervising judge, such responses may be
attached to the report and also released publicly. See
supervising judge proceeded to accept the grand jury's
Report 1, while specifically opining that it was supported by
a preponderance of the evidence. See Order dated
Apr. 27, 2018, and Amended Order dated May 22, 2018, in
In re 40th Statewide Investigating Grand Jury, No.
571 M.D. 2016 (C.P. Allegheny). The predicate orders,
however, contained no explanation of the manner by which the
judge reached his preponderance determination, no account
concerning whether that pronouncement was focused on the
report as a whole or encompassed an assessment of the facts
related to each individual named in the report,
no discussion of the evidence considered. These orders
nonetheless served as a clear signal that the judge intended
for Report 1 to be filed publicly.
given that the report censured the conduct of individuals who
were not charged with crimes, the supervising judge elected
to permit living individuals who were named or implicated to
submit responses to the material findings of the report.
See Amended Order dated May 22, 2018, in In re
40th Statewide Investigating Grand Jury, No. 571 M.D.
2016 (citing 42 Pa.C.S. §4552(e)). The judge then
devised a procedure to afford notice to these individuals,
allowing them thirty days to respond.
of individuals (primarily members of the clergy) responded
with challenges to Report 1, generally asserting a denial of
constitutional rights. Although the claims differed in
particulars to some degree, they shared certain key features.
Most of the petitioners alleged that they are named or
identified in Report 1 in a way that unconstitutionally
infringes on their right to reputation. See Pa.
Const. art. I, §1 ("All men are born equally free
and independent, and have certain inherent and indefeasible
rights, among which are those of enjoying and defending life
and liberty, of acquiring, possessing and protecting property
and reputation, and of pursuing their own
happiness." (emphasis added)); see also id.
§11. They also claimed that they were denied due process
of law based upon the lack of an opportunity to be heard by
the grand jury itself or in a pre-deprivation hearing before
the supervising judge. See U.S. Const. amend. XIV
(precluding the states from depriving "any person of
life, liberty, or property, without due process of
law"); see also Pa. Const. art. I,
§§1, 11. See generally Mathews v.
Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902 (1976)
("The fundamental requirement of due process is the
opportunity to be heard 'at a meaningful time and in a
meaningful manner.'" (quoting Armstrong v.
Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191 (1965))).
Many of the petitioners asserted that they were not aware of,
and/or not permitted to appear at, the proceedings before the
of the petitioners offered that due process could be
satisfied if the supervising judge would conduct
pre-deprivation evidentiary hearings to permit their
meaningful participation in such an alternative forum. They
asked the judge to consider excising information about them
from the grand jury report that they could demonstrate was
unsupported, false, and/or misleading, while leaving the vast
bulk of the report available for review by the public. The
supervising judge, however, found "no provision in the
laws or Constitution of the Commonwealth that permits the
redaction of a Grand Jury report, the findings of which are
supported by the preponderance of the evidence, after it has
been submitted to and accepted by the supervising
judge." Order of May 31, 2018, in In re 40th
Statewide Investigating Grand Jury, No. 571 M.D. 2016.
According to the judge, the petitioners had received all of
the process that was due them under the law. See id.
supervising judge's treatment, in these regards, was
further developed in an opinion and order of June 5, 2018,
which was made available to the public. See In re 40th
Statewide Investigating Grand Jury, No. 571 M.D. 2016,
slip op. at 9 (C.P. Allegheny June 5, 2018)
[hereinafter, "June 5 Opinion, at __"]. In that
opinion, the judge framed the legal issue as "whether a
named nonindicted person in a grand jury report is, prior to
the public release of the report, entitled by virtue of due
process to have a full pre-deprivation hearing, including the
right to cross-examine Commonwealth witnesses, present
witnesses of their own, and present evidence."
Id. at 1.
the supervising judge found that the petitioners' concern
with grand jury condemnation was sufficient,
constitutionally, to implicate a requirement of procedural
due process. See id. at 2 (citing R. v.
DPW, 535 Pa. 440, 454, 636 A.2d 142, 149 (1994)). In
this regard, the judge recognized that protection of
one's reputation is a fundamental right under the
Pennsylvania Constitution. See Pa. Const. art. I,
§1; see also R. v. DPW, 535 Pa. at 454, 636
A.2d at 149. Accordingly, his remaining analysis centered on
the question of what particular process was due to the
with the longstanding jurisprudence of the Supreme Court of
the United States and this Court, the supervising judge set
forth the framework for procedural due process, as recently
related in Bundy v. Wetzel, __ Pa.__, 184 A.3d 551
(2018), centered upon Mathews, 424 U.S. at 333, 96
S.Ct. at 902. First, he observed that the concept of due
process is a flexible one, and that the procedures that it
requires will vary according to the particular situation.
See Zinermon v. Burch, 494 U.S. 113, 127, 110 S.Ct.
975, 984 (1990). Furthermore, he related, ascertainment of
what process is due requires a balancing of the following
(1) the private interest affected by the governmental action;
(2) the risk of an erroneous deprivation together with the
value of additional or substitute safeguards; and
(3) the state interest involved, including the administrative
burden the additional or substitute procedural requirements
would impose on the state.
Bundy, __ Pa. at __, 184 A.3d at 557 (citing
Mathews, 424 U.S. at 335, 96 S.Ct. at 903).
supervising judge also depicted the central demands of due
process in the conventional terms of notice and a meaningful
opportunity to be heard in furtherance of the protection of
the underlying right (here, reputation). See June 5
Opinion, at 2 (citing, indirectly, Mathews, 424 U.S.
at 333, 96 S.Ct. at 902). The judge elaborated that the
Supreme Court of the United States has described due process
as an "elusive concept" with "exact boundaries
[that] are undefinable." Hannah v. Larche, 363
U.S. 420, 442, 80 S.Ct. 1502, 1514 (1960).
among the circumstances that the supervising judge considered
material was his depiction of an investigating grand jury
issuing a report as solely an investigative -- and not an
adjudicative -- body. See June 5 Opinion, at 4.
Relying on Hannah, 363 U.S. at 420, 80 S.Ct. at 1502
(upholding procedural rules of the federal Commission on
Civil Rights providing that the identity of complainants need
not be disclosed and withholding any right of
cross-examination from witnesses before the Commission,
relative to other witnesses), the judge reasoned that lesser
due process protections are generally implicated in relation
to governmental investigatory functions. In the supervising
judge's judgment, the statutory procedures allowing for
notice to named (but uncharged) persons, and providing an
opportunity to respond in writing prior to public release,
were sufficient to support the issuance of an investigating
grand jury report. See June 5 Opinion, at 4 (citing
42 Pa.C.S. §4552(e)).
terms of the Mathews factors, again, the supervising
judge recognized the fundamental nature of the reputational
interests at stake. See id. at 5. He found the risk
of an erroneous deprivation to be minimal, nonetheless, in
light of the statutory requirement for supervising judges to
determine that the findings of the grand jurors are supported
by a preponderance of the evidence. See id. In this
regard, the supervising judge explained, in broad strokes,
that "the grand jury, in reaching its findings, heard
from dozens of witnesses, examined numerous exhibits, and
reviewed over half a million pages of internal diocesan
documents from the archives of various Dioceses."
the administrative burden, the supervising judge suggested
that providing any greater procedural protections would be
unduly disruptive of the "purely investigative
function" of the grand jury. Id. at 6
("[P]ermitting persons named in grand jury reports to
present evidence, including potentially their own testimony
subject to cross-examination, to the grand jury would turn an
investigative proceeding into an adjudicative one which is
not the purpose or function of an investigative grand
jury."). The supervising judge further opined that
"[a]dopting the position advanced by the movants would
fundamentally change the Grand Jury Act's procedures,
change the historical function of grand juries, and
effectively bring the grand jury process to a halt turning
each investigation into a full adjudication."
Id. at 6-7.
supervising judge also offered his reasoning for rejecting
the proposal for a pre-deprivation hearing before him.
According to the judge, this would impose too great a burden
on the Commonwealth, which "would be required to allow
[the petitioners] access to the testimony of witnesses
traditionally shielded in grand jury secrecy, permit them to
recall and cross-examine those witnesses, and allow the
presentation of new evidence." Id. at 7.
Moreover, it was clear that the supervising judge did not
believe that he had the authority to personally conduct
hearings in any event, since it was the function of the grand
jury "to weigh the evidence and make factual
findings." Id. at 8.
supervising judge certified his orders as to most of the
challenges for immediate appeal, in recognition of the
existence of controlling questions of law over which there
are substantial grounds for a difference of opinion.
See 42 Pa.C.S. §702(b); Pa.R.A.P. 3331(a)(5)
(facilitating review of grand jury orders upon certification
by a supervising judge). Despite this certification, however,
the supervising judge did not temporarily halt the release of
Report 1. Rather, the judge indicated that the report would
be published as early as June 23, 2018.
individuals filed multiple petitions for review in this
Court, along with emergency applications to stay the public
release of Report 1 pending the Court's review.
Initially, the Commonwealth did not oppose a brief stay.
20, 2018, this Court entered an order granting the requested,
unopposed stay, and we issued a supportive per
curiam opinion on June 25, 2018. We explained that the
June 23 release date provided inadequate time for orderly
judicial review; the appellate-level proceedings were
incomplete and adequate development was necessary; this Court
did not have essential information, including Report 1
itself; and the Commonwealth had confirmed the
appropriateness of a stay in some cases and indicated that it
had no objection to a brief stay in others.
of the cases that are the subject of this opinion,
clergy-petitioners (referred to hereinafter as
"Appellants") have filed a single brief addressing
common issues, as well as supplemental briefs addressing
individualized matters. The Commonwealth, in turn, has
responded to the common issues in a unified fashion. Redacted
versions of the litigants' briefs are being made
available to the public, following resolution of disputes as
to the redactions.
interim, the Commonwealth filed motions to lift the stay and
to unseal the record of the proceedings before this Court in
all pending appeals. In those filings and elsewhere, the
Commonwealth has made it clear that it considers it to be a
matter of great public importance for Report 1 to be released
to the public immediately. News organizations (the
"Media Intervenors") have presented submissions
consistent with the Commonwealth's view concerning
immediate publication. Alternatively, the Media Intervenors
seek release of a redacted version of the report during the
pendency of the litigation, which removes only information
identifying the limited range of individuals who have filed
appellate challenges. Appellants have opposed relief from the
stay pending final resolution of their challenges, asserting
that the common goal of all parties should be the ultimate
publication of a report that is fair and accurate.
address the legal arguments presented on a plenary basis.
See, e.g., Six L's Packing Co. v. WCAB
(Williamson), 615 Pa. 615, 629, 44 A.3d 1148, 1157
Grand Jury Reports
begin our analysis with a discussion of grand jury reports
and a related document, namely, the
grand jury is an institution with deep historical roots.
See, e.g., Costello v. United States, 350
U.S. 359, 362, 76 S.Ct. 406, 408 (1956) ("The grand jury
is an English institution, brought to this country by the
early colonists and incorporated in the Constitution by the
Founders."); In re Report & Rec. of June 5, 1972
Grand Jury, 370 F.Supp. 1219, 1222 (D.D.C. 1974)
("By virtue of the Fifth Amendment, grand jury
prerogatives were given institutional status in the United
States, and grand juries have ever since played a fundamental
role in our criminal justice system."). The operation of
grand juries in a unique, non-adversarial, secret environment
-- where qualitative rules pertaining to the consideration of
evidence do not apply and witnesses are not subject to
cross-examination -- offers substantial advantages in terms
of the gathering and review of information. See
Costello, 350 U.S. at 364, 76 S.Ct. at 409 (explaining,
with reference to "the whole history of the grand jury
institution," that "laymen conduct their inquiries
unfettered by technical rules").
these features also implicate concomitant limitations. As
related by a federal district court:
The need for safeguards on the grand jury is enhanced by the
fact that it is not bound by the rules of evidence that
normally protect the publicly accused from baseless or unduly
prejudicial information. The grand jury can hear any rumor,
tip, hearsay, or innuendo it wishes, in secret, with no
opportunity for cross-examination. Costello v. U.S.,
350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956). The grand
jury is not required to hear or consider evidence which would
exonerate a target of an ...