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In re 2014 Allegheny County Investigating Grand Jury

Supreme Court of Pennsylvania

October 31, 2019


          ARGUED: April 11, 2019

          Appeal from the Order of the Superior Court entered March 14, 2018 at No. 950 WDA 2015, affirming the Order of the Court of Common Pleas of Allegheny County entered May 22, 2015 at No. CP-02-MD-0003179-2015.




         In this case of first impression, we consider whether either the common law or the First Amendment confers a qualified right of access to the press and the public to inspect certain search warrant materials issued in connection with a grand jury investigation. We conclude no such right exists where, as here, the request is made while the grand jury's investigation is ongoing. Accordingly, we affirm.

         We previously recounted the relevant background of this matter in a prior decision. In re 2014 Allegheny Cty. Investigating Grand Jury, 173 A.3d 653, 654-55 (Pa. 2017) ("Allegheny County II"). Briefly, appellant, WPXI, Inc., is the owner and operator of a news television station in Pittsburgh. In 2015, WPXI began investigating allegations of improper sexual relationships between faculty and students at Plum High School in Allegheny County. As part of its inquiry, WPXI filed a motion to intervene in the proceedings of the 2014 Allegheny County Investigating Grand Jury for the purpose of obtaining access to certain documents. Specifically, WPXI sought access to: (1) an application for search warrant and authorization ("search warrant") to conduct a search of the Plum High School Administrative Building, which was issued on May 18, 2015, by the Honorable Jill E. Rangos, supervising judge of the investigating grand jury; and (2) an order sealing the affidavit of probable cause supporting the search warrant ("sealing order").[1] In its motion, WPXI explained that despite the Commonwealth's refusal to supply it with copies of the requested documents, another media outlet had obtained them by other means.[2] Nevertheless, relying upon decisions concerning the common law right of access to public judicial records, see, e.g., Commonwealth v. Upshur, 924 A.2d 642, 647-48 (Pa. 2007) (plurality), WPXI asserted it had a right to independently inspect and copy the original documents.

         On May 22, 2015, the parties appeared for a hearing before the supervising judge, at which time WPXI reiterated it was "not seeking access to the supporting affidavit or any attachment identifying suspected juvenile victims." N.T. 5/22/2015, at 3. WPXI further stated it was not seeking evidence presented to the investigating grand jury or any grand jury testimony. In WPXI's view, the only two documents to which it sought access - the search warrant and the sealing order - constitute public judicial records. As such, WPXI argued a presumption of openness attached to the documents. Alternatively, WPXI claimed it had a right to the documents under the First Amendment.

         The Commonwealth did not deny that the materials sought were judicial records, but it disputed WPXI's characterization of those records as public. According to the Commonwealth, a search warrant issued in relation to a grand jury investigation "is very different" from a search warrant issued in an ordinary case, as grand jury matters "have always been secret[.]" Id. at 9-10. The need to protect the integrity of a grand jury's investigation, the Commonwealth argued, supports a conclusion there is no presumption of openness to search warrant materials issued in connection with an ongoing grand jury investigation.

         Following the hearing, the trial court denied WPXI's motion. The court reasoned the documents were not public judicial records because they related to an ongoing grand jury investigation; and since the materials were not public, there was no common law right of access to them. By the same token, the trial court concluded WPXI had no First Amendment right to the documents because grand jury proceedings have not historically been open to the press and public, and public access would not play a significant positive role in the functioning of the grand jury process. The court further stated that, even if a common law or constitutional right of access did exist, there were particularized concerns for secrecy attending the grand jury's investigation that outweighed WPXI's interest in gaining access to the documents. The trial court, however, declined to state its specific findings on the record for fear that doing so would violate the secrecy of the underlying grand jury proceedings and compromise the ongoing investigation. Instead, the court indicated it would supplement its opinion with specific factual findings regarding the compelling governmental interests relevant to the grand jury's investigation "[t]o the extent deemed necessary, and in the manner deemed appropriate by the Superior Court[.]" Trial Ct. Op., 7/23/2015, at 5.

         WPXI filed an appeal, which the Superior Court sua sponte dismissed on mootness grounds. As the Superior Court saw it, the fact that WPXI conceded it had obtained the requested materials from another source rendered the matter moot, as "a determination in WPXI's favor would have no practical effect[.]" In re 2014 Allegheny Cty. Investigating Grand Jury, 147 A.3d 922, 924 (Pa. Super. 2016) ("Allegheny County I"). We granted discretionary review and reversed. Allegheny County II, 173 A.3d at 656. Crediting the need for responsible media organizations to verify information to protect against liability and to further their professional calling to provide the public with accurate reporting, we agreed with WPXI that the right of access "is not obviated by any and all forms of dissemination by third-party sources" - particularly dissemination in the form of internet postings, which have varying degrees of reliability. Id. at 655. In that respect, we noted the Superior Court offered no assessment concerning the reliability, verifiability, or completeness of the documents posted on the internet and obtained by WPXI, and we thus concluded there was insufficient information to support a sua sponte mootness determination. Consequently, we reversed and remanded for consideration of the merits of WPXI's claims.

         On remand, the Superior Court affirmed the trial court's order denying access in a published opinion. In re 2014 Allegheny Cty. Investigating Grand Jury, 181 A.3d 349 (Pa. Super. 2018) ("Allegheny County III"). Preliminarily, the Superior Court addressed the propriety of WPXI's motion to intervene and the trial court's denial thereof. The Superior Court highlighted this Court's longstanding recognition that the filing of a motion to intervene by the news media is the proper means of asserting the public's right of access to information pertaining to criminal cases. Quoting our decision in Commonwealth v. Fenstermaker, 530 A.2d 414 (Pa. 1987), the Superior Court explained: "Intervention of this type may properly be termed de bene esse, to wit, action that is provisional in nature and for the limited purpose of permitting the intervenor to file a motion, to be considered separately, requesting that access to proceedings or other matters be granted." Id. at 351, quoting Fenstermaker, 530 A.2d at 416 n.1. From this the Superior Court determined WPXI should have first filed a motion to intervene, which the trial court should have granted; WPXI should have thereafter filed a separate motion to access the documents in question; and the trial court then should have conducted a hearing before ruling on WPXI's request. Because WPXI and the trial court did not abide by this procedure - instead, WPXI filed a single combined motion to intervene and seek access, and the trial court denied the motion in its entirety - the Superior Court concluded the trial court erred. However, the Superior Court deemed the error technical in nature, and therefore not a basis for relief, because WPXI was de facto permitted to intervene when it was granted the opportunity to argue the substance of its access request at the hearing.

         Turning to the trial court's denial of WPXI's claims of access under the common law and First Amendment, the Superior Court began by observing no Pennsylvania case has addressed the public's right to access or copy grand jury materials or search warrant documents issued in connection with a grand jury investigation. As a result, the court took guidance from this Court's precedents establishing the legal principles applicable to other types of documents, and then considered how the special nature of grand jury investigations impacts the analysis of those principles.

         The Superior Court first analyzed this Court's decision in Fenstermaker, where we considered a newspaper's right to access affidavits of probable cause supporting arrest warrants that had already been executed. In forging a standard for establishing the common law right of access to judicial documents, we explained the threshold inquiry is "whether the documents sought to be disclosed constitute public judicial documents, for not all writings connected with judicial proceedings constitute public judicial documents." Fenstermaker, 530 A.2d at 418. We resolved that if a document is considered a public judicial record, there is a presumption of openness; however, "the right to inspect judicial documents is not absolute, and courts do have supervisory power over their records and files." Id. at 420. Thus, "[w]here the presumption of openness attached to a public judicial document is outweighed by circumstances warranting closure of the document to public inspection, access to the document may be denied." Id.

         Applying these standards to the arrest warrant affidavits at issue in Fenstermaker, we held the documents were public judicial records to which a presumption of openness attached. Initially, we identified the salutary benefits, from a policy standpoint, that public access to the affidavits would serve. See id. at 418 ("public inspection of arrest warrant affidavits would serve to discourage perjury in such affidavits, would enhance the performance of police and prosecutors by encouraging them to establish sufficient cause before an affidavit is filed, would act as a public check on discretion of issuing authorities thus discouraging erroneous decisions and decisions based on partiality, and would promote a public perception of fairness in the arrest warrant process"). We also viewed the affidavits as clearly judicial in character because they informed the magistrate's judicial decision to issue the warrants. See id. ("[T]he decision to issue a warrant is itself a judicial one reflecting a determination that the affidavits and the information contained therein provide a sufficient basis upon which to justify an arrest."). And we found it significant that procedural rules require that arrest warrant affidavits be filed in order to become part of the permanent record of a case. See id. ("[A]s filed documents, their 'public' character is enhanced."). For these reasons, we concluded the newspaper had a right to access the arrest warrant affidavits.

         The Superior Court next examined PG Publishing Co. v. Commonwealth, 614 A.2d 1106 (Pa. 1992). In that case, we extended our reasoning in Fenstermaker to search warrants and supporting affidavits. Although we acknowledged a document is not a public judicial document simply because it is generated in connection with judicial proceedings, and the purposes of arrest warrants and search warrants differ, we nonetheless held a search warrant, once executed, is a public judicial document. In reaching this conclusion we noted that while "[t]here is no historical tradition of public access to search warrant proceedings[, ]" search warrant applications, like arrest warrants, are filed with magistrate district judges and "the decision to issue a search warrant is a judicial decision." Id. at 1108. Moreover, we related that although the search warrant application process is, by design, ex parte and not subject to public scrutiny, this "need for secrecy will ordinarily expire once the search warrant has been executed." Id.

         The Superior Court finally considered the Opinion Announcing the Judgment of the Court ("OAJC") in Upshur, another case involving WPXI. There, we reviewed whether an audiotape that was played at a preliminary hearing, but not admitted into evidence, constituted a public judicial record such that WPXI had a common law right of access to it. The OAJC, authored by then-Justice, now-Chief Justice Saylor, revisited the relevant law and observed "the public right to review and copy judicial records and documents provides an important check on the criminal justice system, ensuring not only the fair execution of justice, but also increasing public confidence and understanding." Upshur, 924 A.2d at 647.

         Relying on Fenstermaker and PG Publishing, the Upshur OAJC determined the tape was, as a matter of law, a public judicial document. Although the tape was not filed or entered into evidence at the preliminary hearing, the OAJC recognized that fact was relevant but not dispositive of the right to access. See id. at 650 ("The common law right of access is based upon the public's interest in knowing about events as they actually transpire and not simply on what is filed with a court or formally admitted into evidence."). The OAJC stressed that the tape, which had been played at a preliminary hearing, formed "the basis of the magistrate district judge's legal decision as to whether the charges [were] held for trial, and thus . . . was clearly the type of material upon which a judicial decision is based." Id. at 650-51. Accordingly, the OAJC held the tape was a public judicial record, and the trial court did not abuse its discretion in granting WPXI access to it.

         Next, the Superior Court explored how federal courts generally approach access requests under the First Amendment by reviewing the following decisions. In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (plurality), the United States Supreme Court held the right of access was embodied in the First Amendment of the United States Constitution, [3] as it was necessary to the enjoyment of other First Amendment rights, including the informed discussion of governmental affairs. After considering whether the criminal trial was historically open to the press and public and whether the right of access played a significant role in the functioning of the judicial process as a whole, the Court concluded "a presumption of openness inheres in the very nature of a criminal trial under our system of justice." Id. at 573. Thereafter, in Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1 (1986) ("Press-Enterprise II"), the Court formally adopted the "experience and logic" test, which established that the existence of a First Amendment right of access initially is based upon consideration of "whether the place and process have historically been open to the press and general public[, ]" and "whether public access plays a significant positive role in the functioning of the particular process in question." Id. at 8. If the proceeding in question satisfies these tests, "a qualified First Amendment right of public access attaches." Id. at 9. However, "even when a right of access attaches, it is not absolute[, ]" as it may be overcome by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. Id.

         After carefully surveying our jurisprudence concerning the common law right of access, as well as federal jurisprudence relating to the First Amendment right, the Superior Court summarized the relevant principles of law as follows:

[T]o prevail on its common-law claim, WPXI initially had to show that the documents it sought were public judicial documents; then, if the Commonwealth wished to have them sealed, the trial court was required to balance the public's right to access with the Commonwealth's interests in preventing disclosure. To prevail on its First Amendment claim, WPXI had to establish that experience and logic favor the public's having access to the documents, after which the Commonwealth could nonetheless prevent access upon showing an overriding government interest narrowly tailored to serve that interest. Both claims require the trial court, in deciding the issue, to make specific factual findings that support its rationale.

Allegheny County III, 181 A.3d at 355. Reiterating once more that no Pennsylvania case had yet applied these principles to a request to access search warrant documents issued in connection with a grand jury investigation, the Superior Court proceeded to examine the overall nature of grand jury proceedings before considering how other jurisdictions have ruled with respect to media requests to access grand jury-related materials.

         Regarding the nature of grand jury proceedings, the Superior Court emphasized that the secrecy within which grand jury proceedings are traditionally conducted in Pennsylvania is "indispensable to the effective functioning of a grand jury." Id., citing In re Dauphin Cty. Fourth Investigating Grand Jury, 19 A.3d 491, 502 (Pa. 2011). Not only is the importance of maintaining secrecy in grand jury proceedings entrenched in case law, but it is also mandated by rule and statute. For example, Rule of Criminal Procedure 229 instructs that a supervising judge of an investigating grand jury "shall control the original and all copies of the transcript and shall maintain their secrecy[, ]" and "shall establish procedures for supervising custody" of physical evidence presented to the grand jury. Pa.R.Crim.P. 229. In addition, pursuant to the Investigating Grand Jury Act, 42 Pa.C.S. §§4541-4553, with the exception of witnesses, those who typically appear before the investigating grand jury "may disclose matters occurring before the grand jury only when so directed by the court. All such persons shall be sworn to secrecy, and shall be in contempt of court if they reveal any information which they are sworn to keep secret." 42 Pa.C.S. §4549(b).

         The Superior Court determined the critical need for secrecy attendant to grand jury proceedings differentiated those proceedings from ordinary criminal trials at their various stages. As the Superior Court explained, "while the cases discussed above were based upon a presumption of access flowing from the historical tradition and constitutional requirements of open courts and public trials, the opposite is true of grand jury proceedings." Allegheny County III, 181 A.3d at 355-56. In support, the Superior Court pointed to this Court's citation in Upshur to Press-Enterprise II, where the High Court stated that

[a]lthough many governmental processes operate best under public scrutiny, it takes little imagination to recognize that there are some kinds of government operations that would be totally frustrated if conducted openly. A classic example is that the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings.

Id. at 356, quoting Press-Enterprise II, 478 U.S. at 8-9 (emphasis added; internal quotation and citations omitted). As well, the Superior Court identified cases from other jurisdictions that similarly highlighted the importance of grand jury secrecy in holding the denial of public access to grand jury-related documents was proper. See United States v. David Smith, 123 F.3d 140, 143 (3d Cir. 1997) (newspaper had no right to access briefs containing grand jury material because "there is no presumptive First Amendment or common law right of access to them if secret grand jury material would be disclosed by that access"); Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 509 (1st Cir. 1989) (the "First Amendment attaches only to those records connected with proceedings about which the public has a right to know" and neither the experience nor logic prong was met where Boston Globe challenged statute that automatically sealed records when grand jury opted not to indict); In re Gwinnett Cty. Grand Jury, 668 S.E.2d 682, 685 (Ga. 2008) (rule that court records are generally open to public and press does not apply to evidence presented to grand jury because they are not court records to which the public and press usually enjoy access).

         Against this backdrop, the Superior Court returned to the search warrant and sealing order at issue here and determined WPXI did not have a right to access the documents under either the common law or First Amendment. First addressing the common law, the Superior Court found the search warrant and sealing order "clearly are judicial documents under [this] Court's pronouncements[, ]" as they "were either used by a judge as bases for a decision or embodiments of the judicial decisions made." Allegheny County III, 181 A.3d at 358. However, the Superior Court agreed with the trial court that the materials were not public judicial documents because they were issued in connection with a grand jury investigation, which distinguished them from the public materials sought by the media in Fenstermaker, PG Publishing, and Upshur. The court explained,

[g]ranting WPXI access to the information and items sought via the subpoena would defeat the purpose of secrecy: it would make public the subjects of the ongoing grand jury investigation, disclose which provisions of the crimes code the grand jury was investigating, and reveal to potential witnesses, targets, and persons who might have access to similar materials stored at a different location the precise nature of the items relevant to the investigation.

Id. The Superior Court also considered it noteworthy that grand jury documents are controlled by the supervising judge for the purpose of maintaining their secrecy. Id., citing Pa.R.Crim.P. 229. All things considered, the Superior Court concluded "there is not, nor has there ever been, any public access to or oversight of grand jury proceedings such that a presumption of openness attaches to the documents to which WPXI sought access" and, accordingly, WPXI's common law claim failed as a matter of law. Id.

         The Superior Court also rejected WPXI's First Amendment claim, concluding the "experience-and-logic test yields the same result." Id. at 359, citing David Smith, 123 F.3d at 148 ("[Precedent] implicitly makes clear that grand jury proceedings are not subject to a First Amendment right of access under the test of 'experience and logic.'"). More precisely, the Superior Court held WPXI had no First Amendment right to access the documents because grand jury proceedings have historically been closed to the public ...

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