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In re Fortieth Statewide Investigating Grand Jury

Supreme Court of Pennsylvania

July 27, 2018


          SUBMITTED: July 27, 2018




         Before 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 constitutional rights.

         As the 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 regard.

         The 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.

         In the 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.

         I. Background

         The 40th Statewide Investigating Grand Jury was convened in 2016 under the Investigating Grand Jury Act.[1] 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. §4549(b).

         Prior 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 to intervene.[2]

         It is 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 Part II.

         The 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 added).

         Additionally, 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 id.

         The 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, [3] and 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.

         Further, 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.

         Dozens 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 grand jury.

         Several 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.

         The 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.

         Initially, 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 petitioners.

         Consistent 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 three factors:

(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).

         The 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).

         Prominent 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)).[4]

         In 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." Id.[5]

         As to 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.

         The 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.

         The 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.

         Affected 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.

         On June 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.

         In most 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.

         In the interim, the Commonwealth filed motions to lift the stay and to unseal the record of the proceedings before this Court in all pending appeals.[6] 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.

         We 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 (2012).

         II. Grand Jury Reports

         We begin our analysis with a discussion of grand jury reports and a related document, namely, the presentment.[7]

         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").

         But 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 ...

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