Opinion
No. 45 WM 2017
08-21-2018
IN RE: FORTIETH STATEWIDE INVESTIGATING GRAND JURY Appeal of: Diocese of Harrisburg and Diocese of Greensburg
Arthur T. Donato Jr., Esq., Law Offices of Arthur Thomas Donato, Jr., Donna Ann Walsh, Esq., Myers, Brier & Kelly, L.L.P., Robert Eugene Welsh Jr., Esq., Welsh & Recker, P.C., Patrick Aloysius Casey, Esq., Bradley Adam Winnick, Esq., for Pennsylvania Association of Criminal Defense Lawyers, Amicus Curiae. Mark Edward Seiberling, Esq., Joshua John Voss, Esq., Kleinbard LLC, Matthew Hermann Haverstick, Esq., for Diocese of Harrisburg and Diocese of Greensburg, for Petitioners. James Patrick Barker, Esq., for Commonwealth of Pennsylvania, Respondent. Jennifer Anne Buck, Esq., Daniel Jacob Dye, Esq., for Office of Attorney General, Respondent.
Arthur T. Donato Jr., Esq., Law Offices of Arthur Thomas Donato, Jr., Donna Ann Walsh, Esq., Myers, Brier & Kelly, L.L.P., Robert Eugene Welsh Jr., Esq., Welsh & Recker, P.C., Patrick Aloysius Casey, Esq., Bradley Adam Winnick, Esq., for Pennsylvania Association of Criminal Defense Lawyers, Amicus Curiae.
Mark Edward Seiberling, Esq., Joshua John Voss, Esq., Kleinbard LLC, Matthew Hermann Haverstick, Esq., for Diocese of Harrisburg and Diocese of Greensburg, for Petitioners.
James Patrick Barker, Esq., for Commonwealth of Pennsylvania, Respondent.
Jennifer Anne Buck, Esq., Daniel Jacob Dye, Esq., for Office of Attorney General, Respondent.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
Chief Justice Saylor delivers the Opinion of the Court, and Justice Baer also speaks for the Court, by way of concurrence.
OPINION
CHIEF JUSTICE SAYLOR
This appeal concerns a challenge to the practice of requiring private attorneys who may be privy to confidential information related to a grand jury investigation to commit to maintaining the secrecy of all information they may acquire regarding the grand jury.
The case involves the 40th Statewide Investigating Grand Jury, which was convened in 2016 per the Investigating Grand Jury Act. As relevant here, this statutory regime limits the ability of participants in grand jury proceedings, other than witnesses, to disclose matters occurring before the grand jury. See 42 Pa.C.S. § 4549(b). In the first instance, the enactment's Section 4549(b) authorizes disclosure of such matters generally to "attorneys for the Commonwealth" for use in the performance of their duties. Id. Additionally, the attorneys for the Commonwealth, with the approval of the supervising judge, may reveal matters occurring before the grand jury to law enforcement or investigating agencies. Id. "Otherwise," the ensuing provisions admonish, "a juror, attorney , interpreter, stenographer, operator of a recording device, or any typist who transcribes recorded testimony may disclose matters occurring before the grand jury only when so directed by the court. " Id. (emphasis added). Section 4549(b) proceeds to require that "[a]ll such persons shall be sworn to secrecy," on pain of contempt for violations. Id.
Act of Oct. 5, 1980, P.L. 693, No. 142, § 216(a)(2) (as amended 42 Pa.C.S. §§ 4541 -4553 ).
Under the authority of the 40th Statewide Investigating Grand Jury, subpoenas requiring the production of documents were recently issued to the Dioceses of Harrisburg and Greensburg ("Appellants" or the "Dioceses"). Their counsel requested a copy of the notice of submission that the Office of the Attorney General (the "OAG") had provided to the supervising judge, the Honorable Norman A. Krumenacker, III. See generally 42 Pa.C.S. § 4550 (delineating the notice-based procedure for the submission of an investigation to a grand jury).
The supervising judge replied that he would furnish a copy of this notice to counsel, but that counsel first would be required to sign and submit an entry-of-appearance form, which included the following oath or affirmation:
I swear or affirm that, under penalty of contempt, I will keep secret all that transpires in the Grand Jury room, all matters occurring before the Grand Jury, and all matters and information concerning this Grand Jury obtained in the course of the representation, except when authorized by law or permitted by the Court. 42 Pa.C.S.A. § 4549(b).
These statements are made subject to the penalties of 18 Pa.C.S. § 4903 [ (False swearing) ].
Counsel declined to accept these terms, however, and Appellants lodged a joint motion to strike the non-disclosure provision from the entry-of-appearance form. They argued that the requirement of secrecy was not authorized by the Investigating Grand Jury Act, both as to the obligation being imposed upon counsel and, alternatively, in terms of the breadth of that duty.
Our present discussion encompasses consideration of some matters appearing in papers that have been filed under seal. Our treatment of such matters, however, is limited to legal contentions that overlap with the present briefing.
The Dioceses' lead contention was that the secrecy requirement of Section 4549(b) simply does not apply to private attorneys. They first posited that, "[b]y its terms," Section 4549(b) applies only to persons who are "sworn to secrecy" -- i.e. , those who are required in practice to sign an oath of secrecy -- such as "Commonwealth attorneys, grand jurors, stenographers, typists, and operators of recording equipment." Brief in Support of the Dioceses' Joint Motion to Strike in In re 40th Statewide Investigating Grand Jury , CP-02-MD-571-2016 (C.P. Allegeheny), at 4.
In fact and as related above, Section 4549(b) delineates several categories of persons who must be sworn to secrecy (namely, "a juror, attorney , interpreter, stenographer, operator of a recording device, or any typist who transcribes recorded testimony") and specifies that "[a]ll such persons shall be sworn to secrecy." 42 Pa.C.S. § 4549(b) (emphasis added). Accordingly, the statute does not render itself subordinate to its own implementation in practice, as the Dioceses initially portrayed. Rather, Section 4549(b) explicitly directs how that implementation is to proceed.
From this early stage in their presentation, Appellants began to substitute the term "Commonwealth attorneys" for the word "attorney" as it appears in Section 4549(b)'s list of persons who must maintain secrecy. Their justification, at this juncture -- based on the above line of reasoning -- was the contention that private attorneys "generally are not required to sign the oath of secrecy." Id. ; see also N.T., May 26, 2017, at 10-11 (reflecting the argument of Appellants' counsel to the supervising judge as follows: "The fact that normally [private attorneys are] not required to execute the secrecy oath I think is an indicator, perhaps the biggest indicator, that there is a difference between those who are statutorily bound to keep ... matters before the grand jury secret and those who are not bound to do so unless it's specifically ordered by the court"). The Dioceses further opined, without offering supporting authority, that private attorneys are relieved from taking an oath of secrecy, because they are only in the presence of grand juries for a limited period of time during which their clients testify as witnesses. See Brief in Support of the Dioceses' Joint Motion to Strike in In re 40th Statewide Investigating Grand Jury , CP-02-MD-571-2016, at 4.
The Dioceses' position that private attorneys are not required to take a secrecy oath -- which they carry into the present briefing -- was and is particularly confounding. In this regard, the distinction is quite tenuous between an "oath of secrecy" and the non-disclosure requirement contained within the entry-of-appearance form (which opens with the words, "I swear or affirm," and otherwise binds attorneys to maintaining secrecy). Accord Brief for Appellee at 17 (positing, as to the relevant argument by Appellants, that "[t]he Dioceses cannot even be accused of putting the cart before the horse; they are putting the cart before the cart."). Indeed, Appellants have supplied no substantive explanation to support their repeated suggestion that a commitment to non-disclosure subject to criminal sanctions is not either a secrecy oath unto itself or tantamount to one.
The Dioceses also refer to historical practices prior to 2013, the year in which the entry-of-appearance form and associated non-disclosure requirement for private attorneys were introduced into grand jury practice. They have offered no evidence, however, to support their assumption that supervising judges in Pennsylvania had consistently interpreted Section 4549(b) as excluding private attorneys from the secrecy requirement, prior to the introduction of the entry-of-appearance form into grand jury practice.
Appellants also deemed it significant that Section 4549(d) expressly provides that a client-witness is not prohibited from publicly disclosing his or her testimony except for cause shown in a hearing before the court. See id. § 4549(d). Given the latitude afforded to witnesses, the Dioceses protested that requiring a commitment to secrecy on the part of private attorneys creates an anomalous situation in which a client-witness is free to disclose his grand jury testimony, but his lawyer cannot act on his behalf to make such a disclosure, even where specifically authorized by the client-witness.
Additionally, Appellants noted that a subsection of Section 4549 is dedicated to addressing "[c]ounsel for witnesses." 42 Pa.C.S. § 4549(c). According to the Dioceses, had the General Assembly intended to forbid disclosures by private attorneys, the logical place at which to reposit such a prohibition was within this subsection.
In terms of the breadth of the non-disclosure requirement appearing within the entry-of-appearance form, Appellants highlighted that Section 4549(b) discusses secrecy solely in the context of "matters occurring before the Grand Jury." 42 Pa.C.S. § 4549(b). The form, on the other hand, prohibits disclosure of "all matters and information concerning this Grand Jury obtained in the course of the representation," a constraint that the Dioceses depicted as being patently overbroad. After entertaining written and oral presentations of the parties' positions, the supervising judge denied relief on Appellants' joint motion. See In re Fortieth Statewide Investigating Grand Jury , No. 571 M.D. 2016, Notice No. 1 (C.P. Allegheny June 15, 2017). At the outset, the supervising judge stressed the pervading necessity for secrecy in grand jury proceedings. See id. at 2 (citing In re Investigating Grand Jury of Phila. Cty. (Appeal of Phila. Rust Proof Co.) , 496 Pa. 452, 457-58, 437 A.2d 1128, 1130-31 (1981) ). He also explained that a grand jury proceeding is an investigative tool to determine if a prima facie case of criminal activity exists, rather than an adversarial hearing in which guilt or innocence of an accused is determined. See id. at 3 (citing Pirillo v. Takiff , 462 Pa. 511, 524, 341 A.2d 896, 902 (1975) ).
Appellants also asserted that the non-disclosure requirement impaired their statutory right to effective counsel and improperly infringed upon their counsel's First Amendment rights and entitlement to pursue the practice of law. In light of mootness considerations, see infra note 8, and our disposition, below -- in which we disapprove the non-disclosure provision of the entry-of-appearance form in its present incarnation -- we have elected to omit the additional issues from our recitation of the background, our discussion, and our ultimate order.
The supervising judge then readily dispensed with the distinction drawn by Appellants between those persons who are required to take an oath of secrecy and attorneys. In this regard, he explained that the non-disclosure requirement in the entry-of-appearance form serves simply as "a customized version of the general secrecy oath required by section 4549(b)...." Id. at 6; see also supra notes 3 & 4.
The supervising judge proceeded to reject the imposition of a limiting construction, as suggested by the Dioceses' arguments, upon the word "attorney" as it appears in Section 4549(b)'s delineation of the categories of persons who are bound to non-disclosure. Invoking principles of statutory interpretation, he reasoned that words and phrases generally are to be construed according to their common usage. See 1 Pa.C.S. § 1903(a) ; see also Centolanza v. Lehigh Valley Dairies, Inc. , 540 Pa. 398, 406, 658 A.2d 336, 340 (1995) ("Absent a definition in the statute, statutes are presumed to employ words in their popular and plain everyday sense[.]"). Additionally, the supervising judge found that the broader interpretation was reinforced by Section 4549(b)'s specific references to "attorneys for the Commonwealth," a defined term under the Investigating Grand Jury Act, see 42 Pa.C.S. § 4542, and "counsel for witnesses." See In re Fortieth Statewide Investigating Grand Jury , No. 571 M.D. 2016, Notice No. 1, at 7 ("These references to specific subsets of attorneys demonstrate that the legislature knew the differences between the all-encompassing word ‘attorney’ and specific classifications within that broad category.").
Responding to Appellants' focus on Section 4549(c)'s treatment of counsel for witnesses, the supervising judge explained that attorneys sometimes appear before grand juries for other purposes, such as -- and in the case of the Dioceses' counsel -- to challenge or otherwise respond to a subpoena. In his judgment, this explanation supported the understanding that, when the Legislature referred to "attorney[s]," it intended to capture the field of attorneys at large (encompassing Commonwealth lawyers and private counsel representing witnesses or appearing before grand juries for any other reason).
In this respect, the supervising judge discussed the concept of "appearance" in its broader, legal sense, reaching beyond an in-person, physical appearance.
Furthermore, the supervising judge noted, Rule of Criminal Procedure 231(C) provides that "[a ]ll persons who are present while the grand jury is in session shall be identified in the record, shall be sworn to secrecy as provided in these rules, and shall not disclose any information pertaining to the grand jury except as provided by law." Pa.R.Crim.P. 231(C) (emphasis added). He reasoned that this rule serves as an independent basis supporting a non-disclosure requirement for attorneys.
In terms of the breadth of the non-disclosure requirement appearing in the entry-of-appearance form, the supervising judge indicated:
Counsel [for the Dioceses] is correct that the non-disclosure/secrecy language would prevent them from discussing anything learned in the grand jury setting with third parties or in any way disclosing what is learned during representation before the grand jury with those other than their clients. This limitation is necessary to preserve the integrity of the grand jury investigation and ensure that no persons are able to influence potential witnesses, alter evidence, or escape indictment if issued.
In re Fortieth Statewide Investigating Grand Jury , No. 571 M.D. 2016, Notice No. 1, at 10 (referencing some of the policy justifications for secrecy as related in In re Investigating Grand Jury of Philadelphia County , 496 Pa. at 457-58, 437 A.2d at 1130-31 ).
Finally, the supervising judge laid the groundwork for a permissive appeal by expressing the opinion that his order involved a controlling question of law to which there is a substantial ground for difference of opinion, and that an immediate appeal might materially advance the ultimate termination of the matter. See 42 Pa.C.S. § 702(b).
Appellants filed the present petition for review pursuant to Rule of Appellate Procedure 3331 seeking both permission to appeal and taking the position, alternatively, that they were possessed with a right to an immediate, interlocutory appeal as of right. On the permissive track, this Court agreed to consider the issues presented upon full briefing and oral argument from the parties.
In terms of the asserted right to appeal on an interlocutory basis, Appellants contended that the supervising judge's order is a collateral order. See Pa.R.A.P. 313(a) ("An appeal may be taken as of right from a collateral order of an administrative agency or lower court."). However, because we find this matter to be of substantial public importance and permission to appeal to be warranted, we need not consider whether the matter could otherwise have been presented as of right.
The issue that we consider here involves statutory interpretation and analysis of our own procedural rules, over which our review is plenary, and we proceed to apply conventional interpretive principles. See generally Norfolk S. Ry. Co. v. PUC , 621 Pa. 312, 323, 328, 77 A.3d 619, 626, 629 (2013) ; Pa.R.Crim.P. 101(C). Presently, Appellants maintain that Section 4549(b) does not require a secrecy oath on the part of private attorneys. Continuing to assert that private counsel are not sworn to secrecy, the Dioceses proceed to dismiss the supervising judge's observation that the non-disclosure requirement contained within the entry-of-appearance form serves as a secrecy oath. In this regard, Appellants treat the judge's explanation as if it had been interposed by the jurist as a direct effort to interpret the statute rather than as a response to the Dioceses' own contentions. See Brief for Appellants at 26 (claiming that the supervising judge's equivalency observation "simply begs the question," since "[i]f private counsel are not required to sign the secrecy oath pursuant to Section 4549(b), which the court below acknowledged that they were not, then the fact that the Non-Disclosure Requirement is a tailored version of the oath does not mean that it is authorized by the Act.").
We note that the present appeal bears hallmarks of a moot controversy. First, the supervising judge has confirmed that he did, at some point, provide Appellants' counsel with the notice of submission that gave rise to their joint motion to strike. Moreover, the tenure of the 40th Statewide Investigating Grand Jury has expired, and a great deal of public information has been released revealing the subject matter of its work. 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) (describing "two years of investigation into the Dioceses related to allegations of child sexual abuse, failure to make a mandatory report, acts endangering the welfare of children, and obstruction of justice by individuals associated with the Roman Catholic Church, local public officials, and community leaders").
Nevertheless, we believe that the lead issue presented by the Dioceses is of sufficient public importance to justify its timely, final resolution in spite of any concerns with the technical mootness of the case. See Pap's A.M. v. City of Erie, 571 Pa. 375, 391, 812 A.2d 591, 600–01 (2002) (alluding to the great-public-importance exception to the mootness doctrine, particularly in light of a material lack of clarity in governing law).
Furthermore, this Court has broad supervisory authority in grand jury matters. See, e.g. , Pa.R.A.P. 3331, Note (explaining that the provisions for review of special prosecutions or investigations generally provide the framework for implementing such supervision by this Court).
Contrary to Appellants' portrayal, the supervising judge's actual interpretive efforts, as related above, focus closely on the terms of the governing statute and applicable interpretive principles. Again, it is the Dioceses' continuing characterization of the non-disclosure requirement of the entry-of-appearance form as something other than a secrecy oath that fosters confusion.
As to the historical practice, Appellants assert that the Office of the Attorney General had, for several decades prior to when the current entry-of-appearance form came into being, interpreted the word "attorney," in Section 4549(b)'s delineation of those subject to secrecy, as meaning only an attorney for the Commonwealth.
The OAG replies, correctly, that it is not the source of authority for requirements imposed on counsel. See Brief for Appellee at 22. Rather, what is required is provided in the Investigating Grand Jury Act, as enforced by supervising judges in the first instance. Moreover, we have previously discussed the absence of support attending the Dioceses' historical arguments. See supra note 4.
In this vein, and focusing on Section 4549(b)'s terms, Appellants stress that the statute twice refers to "attorneys for the Commonwealth" before its treatment of "attorney[s]." 42 Pa.C.S. § 4549(b). According to the Dioceses, the latter should thus be construed to refer back to the former. As supportive authority, Appellants reference the principle of statutory construction counseling that "words and phrases must be viewed ‘not ... in isolation, but ... with reference to the context in which they appear.’ " Scungio Borst & Assocs. v. 410 Shurs Lane Developers, LLC , 636 Pa. 621, 631-32, 146 A.3d 232, 238 (2016) (quoting Meyer v. Community College of Beaver Cty. , 625 Pa. 563, 574, 93 A.3d 806, 813 (2014) ). The Dioceses also continue to highlight Section 4549(c)'s treatment of counsel for witnesses. See, e.g. , Brief for Appellants at 25 ( [W]hen the drafters of Section 4549 wanted to refer to private counsel, they knew precisely how to do it and did not simply use the word ‘attorney’ "). "Tellingly," Appellants assert, Section 4549(c) does not include any prohibition on disclosure by counsel for witnesses. Id. at 25-26. Furthermore, Appellants retain their focus upon the incongruity involved in disabling counsel from making disclosures that client-witnesses may otherwise make of their own accord. Accord Brief for Amicus Pa. Ass'n of Crim. Def. Lawyers at 21-22 ("It makes no sense that an attorney for a witness would be gagged in all cases regardless of need but a witness would be free to discuss his or her testimony in all cases unless the court finds good cause after a hearing.").
Appellants also claim that their position is bolstered by the axiom that "[g]eneral words shall be construed to take their meanings and be restricted by preceding particular words." 1 Pa.C.S. § 1903(b). However, this principle of ejusdem generis generally pertains where general words follow the enumeration of particular classes of persons or things. See, e.g. , Indep. Oil & Gas Ass'n of Pennsylvania v. Bd. of Assessment Appeals of Fayette Cty. , 572 Pa. 240, 246, 814 A.2d 180, 184 (2002) (quoting McClellan v. Health Maint. Org. of Pa. , 546 Pa. 463, 473, 686 A.2d 801, 806 (1996) ). In our judgment, it has no application in the present circumstances, where the Legislature has twice used a defined term when rendering discrete authority relative to disclosure by and to "attorneys for the Commonwealth," and then utilized what appears to be a broader generic term, i.e. , "attorney[s]" when imposing a general prohibition against other disclosures.
In this line of argumentation, Appellants downplay the statute's treatment of disclosure of matters occurring before grand juries as a subject unto itself in the preceding subsection, i.e. , Section 4549(b) (entitled "Disclosure of proceedings by participants other than witnesses").
Regarding Rule of Criminal Procedure 231(C), the Dioceses stress that the rule applies only to "persons who are to be present while the grand jury is in session." Pa.R.Crim.P. 231(C) (emphasis added). Therefore, Appellants reason, any secrecy obligation should attach only to information that counsel learned as a result of being at the actual location of a grand jury while it is in session. Conversely, the Dioceses argue, the rule does not support the broader commitment to secrecy contained in the entry-of-appearance form's non-disclosure requirement, pertaining to "all matters occurring before the Grand Jury, and all matters and information concerning this Grand Jury obtained in the course of the representation."
In this respect, and more broadly, Appellants maintain that the non-disclosure requirement is patently overbroad. For example, they observe that, per that requirement, secrecy would presumably attach to:
(i) documents produced by [counsel's] own client in response to a grand jury subpoena and the information that counsel learns from these documents; (ii) information that counsel obtains from discussions with representatives of the client; and (iii) information that counsel obtains from third parties outside of the Grand Jury room.
Brief for Appellants at 29. Accordingly, Appellants ask, at a minimum, for this Court to curtail the expansive sweep of the non-disclosure requirement.
The OAG, for its part, defends the supervising judge's determination and reasoning.
I. Secrecy as Applied to Private Attorneys
Upon review, we agree with the supervising judge that private counsel are "attorney[s]" and are thus explicitly made subject to the general requirement of secrecy by Section 4549(b). Significantly, a number of Appellants' arguments disregard or downplay relevant considerations as explained throughout our development of the background. See supra notes 3-4 & 9-12.
In our judgment, moreover, nothing on the face of the statute suggests that the Court should attribute to the word "attorney[s]" anything other than its ordinary broad meaning, i.e. , those who are licensed to practice law. See 1 Pa.C.S. § 1903(a). Along these lines, we are not persuaded by Appellants' argument that the Legislature's use of the defined term "attorneys for the Commonwealth" twice previously when establishing disclosure protocols specific to that subset of lawyers signifies that the subsequent use of the word "attorney[s]" in promulgating the general rule of non-disclosure was also meant to refer only to that subset. In this regard, it is significant that each of the three specifications by the Legislature -- two directed to "attorneys for the Commonwealth" and one to "attorney[s]" -- has a discrete substantive purpose. Accord In re Fortieth Statewide Investigating Grand Jury , No. 571 M.D. 2016, Notice No. 1, at 7 ("These references to specific subsets of attorneys demonstrate that the legislature knew the differences between the all-encompassing word ‘attorney’ and specific classifications within that broad category."). In these circumstances, we find the plain language of the statute to be clear enough. See generally Commonwealth v. Derhammer , ––– Pa. ––––, ––––, 173 A.3d 723, 729 (2017) (explaining that the courts are not authorized to insert words into a statute).
The OAG also correctly highlights that, each time that the Investigating Grand Jury Act refers to a district attorney, the Attorney General, or a designee of either, and unless a reference to a particular official is necessary, the enactment specifically employs the term "attorney for the Commonwealth." See Brief for Appellee at 14-15 (citing 42 Pa.C.S. §§ 4543(b), 4546(b) & (c), 4547, 4548(a), 4549(a) -(c), 4550(a) & (b), 4551(a) & (e), and 4552(c) ).
We have no doubt that the Legislature, to minimize cumbersomeness, may sometimes employ shorthand references to terminology previously utilized in a statute. As related above, however, we conclude that the present context is not one in which it would be appropriate to assume that it did so, given the material substantive import of the usage.
Notably, as the supervising judge also related, this Court has stressed the importance of secrecy associated with grand jury proceedings. See, e.g. , Investigating Grand Jury of Phila. Cty. , 496 Pa. at 457-58, 437 A.2d at 1130-31. In such a setting, it seems relatively straightforward that the Legislature would have wished to cast a wide net, among those present during grand jury proceedings, in imposing a requirement of non-disclosure.
In this respect, as the supervising judge and the OAG emphasize, Rule of Criminal Procedure 231(C) is consistent. See Pa.R.Crim.P. 231(C) (reflecting that a secrecy oath is to be administered to "[a]ll persons who are to be present while the grand jury is in session").
The overbreadth issue, as it relates to attorneys -- such as Appellants' counsel -- who have not made a physical appearance before the grand jury, is addressed in Part II of this opinion, below.
The Dioceses also highlight the seeming incongruity of a client-witness being permitted to disclose his or her testimony but his or her attorney being precluded from doing the same. To the extent that this concern is an argument that the Legislature used the word "attorney," as it appears in the penultimate sentence of Section 4549(b), to mean only "attorney for the Commonwealth," we disagree. First, whatever its appeal in terms of policy, this argument is insufficient to overcome the plain language of the statute. See 1 Pa.C.S. § 1921(b) ("When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit."); see also Derhammer , ––– Pa. at ––––, 173 A.3d at 729.
Second, the secrecy obligation concerning "matters occurring before the grand jury" imposed by Section 4549(b) is plainly broader than a witness's disclosure of his or her own testimony permitted by Section 4549(d). Such matters subsume a range of considerations beyond the mere content of a client-witness's testimony, including comments by a supervising judge or the attorney for the Commonwealth made before the grand jury and evidence which may be proffered or discussed during a witness's testimony. While we realize that this observation does not wholly discount the Dioceses' policy-based concern, it is offered here in support of our view that confidentiality must be viewed in the larger perspective.
Justice Donohue criticizes the above observations as unnecessary to the disposition of this case. See Concurring and Dissenting Opinion, at 770–71. From our point of view, however, they are analytically related to the matter at hand and lend support to our material reasoning. Certainly, there could be no rational argument that "matters occurring before the grand jury" could concern only a particular witness's testimony. Indeed, Justice Donohue herself makes the point that "Section 4549(d)'s command that ‘no witness shall be prohibited from disclosing his testimony’ must be understood as a narrow exception to a broader secrecy requirement." Concurring and Dissenting Opinion, at 768 n.3.
Thus, Justice Donohue's concern, as it applies to the text above, appears to be more with the examples that we have provided (comments of a supervising judge or the attorney from the Commonwealth and evidence which may be presented during a witness's testimony) than with the proposition they are offered to support. But those examples are relatively straightforward areas of concern that can be essential to the protection of secrecy and the vindication of the policy goals that Justice Donohue's opinion develops at length. See id. at –––– – –––– (citing Investigating Grand Jury of Phila. Cty. , 496 Pa. at 458, 437 A.2d at 1130-31 ). To the degree that Justice Donohue's concern is that the examples are not clear cut (because "comments" by a supervising judge or an attorney for the Commonwealth may sometimes overlap with witness testimony, as may "evidence" with which a witness is presented, see id. at 770 n.7), our response is that we intend the examples to evoke scenarios in which the witness's testimony is, in fact, analytically distinct from the comments or evidence seen or heard in the grand jury room.
Notably, the necessity to distinguish between witness testimony and other matters arises directly from the governing statute. See 42 Pa.C.S. § 4549(d).
Third, and in any event, we do not read Section 4549 as a whole to preclude private attorneys from disclosing that which their clients are plainly permitted to disclose, particularly given that such attorneys serve in a representational capacity relative to their clients. While we conclude that lawyers who are privy to grand jury proceedings are generally to be sworn to secrecy under the applicable statute -- and that an appropriately crafted entry-of-appearance form may be used to accomplish this function -- we do not believe that the Legislature intended such confidentiality to extend in full measure to that which is not otherwise intended to be held in absolute secrecy, i.e. , the testimony of client-witnesses. See 42 Pa.C.S. § 4549(d). With respect to such testimony, attorneys should generally be free to act on behalf of their clients in advancing their material interests, subject only to overriding considerations (including, of course, the Rules of Professional Conduct and, in the grand jury setting, the necessity for secrecy when protection is otherwise maintained, see id. ). In sum, we do not read Section 4549(b) as preventing an attorney -- with the explicit, knowing, voluntary, and informed consent of a client-witness -- from disclosing the content of the client's own testimony, when the client is otherwise free to do so of his or her own accord. Otherwise, however, we hold that Section 4549(b) straightforwardly forbids attorneys -- including private attorneys -- from revealing matters occurring before an investigating grand jury, absent permission from the supervising judge.
In this regard, we observe that this Court is charged with the regulation of attorneys in Pennsylvania. See Pa. Const. , art. V § 10 (c). Although our decision here represents an exercise in statutory interpretation, the constitutional allocation to the Court of the power to regulate attorneys would likely have raised significant questions had the Legislature decided explicitly to bar attorneys from acting on behalf of their client-witnesses to disclose that which the latter are otherwise free to disclose of their own accord. Cf. 1 Pa.C.S. § 1922(3) (articulating presumption that "General Assembly does not intend to violate the Constitution of the United States or of this Commonwealth").
Accordingly, to the extent that the entry-of-appearance form remains the vehicle by which private attorneys are sworn to secrecy, we exercise our supervisory authority to require that the following statement be appended to it: "I understand that -- with the explicit, knowing, voluntary, and informed consent of my client or clients, and absent a specific prohibition by a supervising judge or circumstances implicating prohibitions arising from the Rules of Professional Conduct -- I may disclose the content of a client-witness's own testimony precisely to the extent that the client-witness may do so under applicable law."
We realize that our opinion in this case exceeds the facts and circumstances before the Court, since Appellants' counsel are not attorneys for a client-witness (and Justice Donohue is quite correct to recognize that by "client-witness" we refer to a client presenting oral testimony before a grand jury, see Concurring Opinion, at 767 n.2). Nevertheless, this case has naturally segued into a discussion of the requirements as they pertain to attorneys for client-witnesses; the treatment of such attorneys is a matter of substantial public importance; and, in any event, we rely upon our supervisory responsibilities in grand jury matters. See supra note 8.
II. Overbreadth
As to the issue of overbreadth, Appellants have correctly related that the terms of the non-disclosure requirement, as it appears on the entry-of-appearance form, exceed the secrecy requirements of the Investigating Grand Jury Act. See 42 Pa.C.S. § 4549(b) (requiring non-disclosure only of "matters occurring before the grand jury"). See generally BARBARA J. VAN ARSDALE , ET AL. , 9 FED. PROC. , L.ED. § 22:794 (2018) ("[T]he general rule of secrecy does not make everything connected with the grand jury's investigation somehow untouchable."). Furthermore, we agree with the Dioceses that a proscription against disclosure of "all matters and information concerning this Grand Jury obtained in the course of the representation" -- applied generally across the field of all lawyers representing grand jury witnesses or who may otherwise become privy to a document or information otherwise held in confidence in the grand jury setting -- represents too great an impingement on counsel's ability to effectively represent their clients.
As Appellants relate, the prohibition facially extends to a wide range of information that is not otherwise confidential in the first instance. Additionally, read literally, the requirement would prevent lawyers from even discussing confidential information with their own clients, albeit that both the supervising judge and the OAG recognize that such a reading is untenable. See In re Fortieth Statewide Investigating Grand Jury , No. 571 M.D. 2016, Notice No. 1, at 10; Brief for Appellee at 33 ("[A]n attorney may discuss with a client matters occurring before a grand jury without violating grand jury secrecy.").
Accordingly, again per our supervisory prerogative, we will require another modification to the entry-of-appearance form, to the extent that it continues to serve as a vehicle to administer a secrecy oath to private attorneys. Specifically, the commitment to secrecy for "all matters and information concerning this Grand Jury obtained in the course of the representation" is to be removed and the syntax of the prior clauses should be adjusted, so that attorneys are bound to keep secret "all that transpires in the Grand Jury room and all matters occurring before the Grand Jury, except when disclosure is authorized by law or permitted by the Court."
To the extent that Criminal Procedural Rule 231(C) can be read to sweep more broadly in its requirement of non-disclosure of "any information pertaining to the grand jury," Pa.R.Crim.P. 231(C), we direct that it should be construed to align with the material provisions of the Investigating Grand Jury Act. Additionally, we intend to invoke the rulemaking process to effectuate a clarifying amendment.
In concluding our treatment of the overbreadth issue, we note that the General Assembly has not provided a definition of the phrase "matters occurring before the grand jury." 42 Pa.C.S. § 4549(b). Plainly, as the entry-of-appearance form suggests, and consistent with a wide body of federal decisional law, the term should be understood to reach beyond only what actually transpires in a grand jury room. See, e.g. , In re Twenty-Fourth Statewide Investigating Grand Jury , 589 Pa. 89, 107, 907 A.2d 505, 516 (Pa. 2006) (permitting disclosure of a notice of submission in the grand jury context, while implicitly recognizing that grand jury secrecy extends to confidential submissions to the court). See generally WAYNE R. LAFAVE , JEROLD H. ISRAEL , NANCY J. KING & ORIN S. KERR , 3 CRIM. PROC. § 8.5(c) (4th ed. 2017) ("The first lesson of the federal precedent is that the phrase ‘matter occurring before the grand jury’ is a term of art, not to be construed literally as encompassing only events that have taken place before the grand jury."). Indeed, there is no dispute here that a notice of submission contains a type of information that is subject to confidentiality in and of itself. Accord In re Twenty-Fourth Statewide Investigating Grand Jury , 589 Pa. at 107, 907 A.2d at 516. Given, however, that the Dioceses' challenge is focused largely on whether their counsel is a person subject to the a grand jury secrecy oath in the first instance and upon the broader sweep of secrecy as reflected on the current entry-of-appearance form, this case does not present a suitable vehicle to offer additional clarification of the statutory phrase "all matters occurring before the grand jury." III. Common Interest and Joint Defense Agreements
Contrary to Justice Donohue's suggestion, see Concurring and Dissenting Opinion, at 770–71, we do not find it to be necessary or useful to refrain from recognizing what is evident from prior decisions and in grand jury practice generally, and which derives from the essential vindication of the policy goals underlying the maintenance of grand jury secrecy, i.e. , that to be effective, secrecy must extend to some range of matters beyond only what happens before the grand jury in a grand jury room.
This opinion is also not focused on special provisions for confidentiality outside the range of ordinary grand jury secrecy, such as the issuance by supervising judges of what are colloquially referred to as "gag orders." Moreover, Appellants do not challenge the authority of a supervising judge to issue such orders where warranted in discrete instances. See, e.g. , Brief for Appellant at 7 (depicting the procedure whereby, "[n]ormally, imposition of ... a gag order" is preceded by "a predicate show-cause hearing and a formal court order"). Accordingly, nothing here should be read as restricting a supervising judge's ability to provide for confidentiality, where warranted, in discrete matters on the part of either those otherwise subject to secrecy obligations under the Investigating Grand Jury Act or grand jury witnesses. See 42 Pa.C.S. § 4549(b) (providing for disclosures of matters occurring before the grand jury by those bound to secrecy, other than as expressly provided in the enactment, "only when so directed by the court"); id. § 4549(d) (prescribing that grand jury witnesses may be prohibited from disclosing their testimony only upon "cause shown in a hearing before the supervising judge").
Both parties also focus considerable attention in their briefs on common interest and joint defense agreements, a subject on which the supervising judge commented as well.
The Dioceses have argued that the non-disclosure requirement, as it appears on the current entry-of-appearance form, inordinately restricts the essential sharing of information among counsel for persons or entities that may become involved with a grand jury investigation, effectively precluding any and all coordination. See, e.g. , Brief for Appellants at 7 ("[T]he avowed purpose of the Non-Disclosure Requirement is to gut the common interest and joint defense privileges maintained between counsel and clients."). Appellants explain that common interest and joint defense agreements are properly used by attorneys to facilitate such coordination, as they give rise to an extension of the attorney-client privilege, thus protecting communications among attorneys representing different parties or among multiple parties represented by a single attorney. See id. at 32 (citing KEVIN P. ALLEN , THE ATTORNEY-CLIENT PRIVILEGE AND WORK-PRODUCT DOCTRINE IN PENNSYLVANIA 80-82 (PBI Press 5th ed. 2016) ). In other words, the common interest and joint defense privileges function as an exception to the general rule that disclosure of information to third parties constitutes a waiver of the attorney-client privilege. See In re Condemnation by City of Phila. , 981 A.2d 391, 396 (Pa. Cmwlth. 2009).
The supervising judge, however, took the position that there simply is no need for common interest or joint defense agreements relative to a grand jury investigation, since such an investigation is not a criminal prosecution. In re Fortieth Statewide Investigating Grand Jury , No. 571 M.D. 2016, Notice No. 1, at 10-11. In this respect, we distance ourselves from the supervising judge's view. As the Attorney General concedes, federal courts recognize that the common interest and joint defense privileges extend into the grand jury setting, see Brief for Appellee at 24 (citing In re Qwest Communications Int'l, Inc. , 450 F.3d 1179, 1195 (10th Cir. 2006) ), and we have no reason to conclude those privileges should be denied to those involved with grand jury proceedings in Pennsylvania.
Significantly, while certainly an investigation is not a prosecution, potential criminal exposure can occur long before the filing of charges, and indeed, may arise during the actual course of grand jury proceedings. Accordingly, counsel for those who have involvement with such proceedings should be permitted to access the range of conventional tools that would otherwise be available at law, so long as there is no conflict with overarching policies (such as secrecy where it pertains) discrete to the grand jury context.
Finally, we observe that our curtailment of the scope of the secrecy obligation assumed by attorneys in the grand jury setting ameliorates -- but does not eliminate -- the concerns that the Dioceses raise about information sharing among counsel. More particularly, relief from the prohibition against counsel's disclosure of "all matters and information concerning this Grand Jury obtained in the course of the representation," see supra Part II, opens a wider field of information to disclosure among participants in a common interest arrangement. Nevertheless, we caution that Appellants have cited no authority for the proposition that a common interest or joint defense agreement relieves counsel from grand jury secrecy requirements that do pertain, and nothing in our opinion should be read as affording such relief. Accordingly, and again in the absence of some developed counter-advocacy, Section 4549(b) does appear to serve as a restraint on the range of information that will be available to counsel to share per a privilege-extending arrangement.
As noted above, we do not address Appellants' assertions that the non-disclosure requirement imposed by the entry-of-appearance form at issue here impaired their statutory right to effective counsel and improperly infringed their counsel's First Amendment rights and entitlement to pursue the practice of law. See supra note 5. Again, we refrain from doing so, in part because our decision to require material modifications to the form alters central predicates of the present argumentation pertaining to these additional claims.
We have no wish to engage in gratuitous commentary here. See Concurring and Dissenting Opinion, at 770–71 (Donohue, J.). Rather, responding to the arguments presented, we express our concern that there may be some fundamental misapprehensions about the impact of common interest arrangements in the grand jury setting. Again, Appellants have presented no authority for the proposition that such private arrangements can be employed to surmount grand jury secrecy, absent approval of a supervising judge. Accordingly, while Justice Donohue is correct to point out that our above discussion would not be dispositive in a future case, we intend it to serve a cautionary role in a sensitive area of the law in which attorneys may run the risk of contempt sanctions.
We emphasize that the concern is not with the sharing of information protected by grand jury secrecy among common interests upon approval by a supervising judge . The tenor of Appellants' argument, however, is to suggest that common interest arrangements obviate the need for any such approval.
IV. A Response to Justice Wecht
Justice Wecht takes the opportunity to criticize the Court for relying upon our supervisory powers relative to grand jury practice. See, e.g. , Concurring and Dissenting Opinion at 775–76. He proceeds to opine, more specifically, that we have inappropriately employed those powers in a manner that subverts legislative intent. See id. at 776–77.
In terms of this Court's supervisory role relative to grand juries, in Dauphin Cty. Fourth Investigating Grand Jury , 610 Pa. 296, 318, 19 A.3d 491, 503 (2011), this Court has explained that "[t]he very power of the grand jury, and the secrecy in which it must operate, calls for a strong judicial hand in supervising the proceedings" (emphasis added) ). Justice Wecht nonetheless seems to imply that this Court should refrain from exercising a meaningful degree of control over grand jury practice.
However, this Court is entrusted with the supervision of the entire judicial system. See PA. CONST. art. V, § 10 (c). Additionally, we have explained that the entanglements, established by the Investigating Grand Jury Act, between grand jury practice and the judiciary will likely yield the impression, among the citizenry, that grand juries speak with judicial sanction. See In re 40th Statewide Investigating Grand Jury , ––– Pa. ––––, –––– – –––– & n.14, 190 A.3d 560, 568–76 & n.14, 2018 WL 3650493, *6-13 & n.14 (July 27, 2018) (inter alia , expressing the concern that "the grand jury's pronouncements will be seen as carrying the weight of governmental and judicial authority ... is substantial" (emphasis added) ).
Particularly based on the present experience with Report 1 of the 40th Statewide Investigating Grand Jury, see id. , we believe -- and we have learned -- that courts should assume a stronger role in supervising the grand jury process, precisely because the Legislature has reposited that system within judicial control. See id. ; see also 42 Pa.C.S. § 4542 (incorporating the concept of a "supervising judge" into investigating grand jury practice (emphasis added) ).
In terms of Justice Wecht's assertion that we have invoked our supervisory powers to subvert legislative intent, see, e.g. , Concurring and Dissenting Opinion, at 773, 775–77, we invite a fair reading of our opinion, above. We have, in fact, interpreted the Investigating Grand Jury Act to permit attorneys to represent their clients. And, in this regard, although Justice Wecht stresses secrecy in the grand jury process, see id. at 773–75, he fails to explain why it is somehow an unacceptable intrusion into secrecy for lawyers to be allowed, in a representational capacity, to disclose to others what their clients were absolutely free to disclose otherwise. Along these lines, we simply do not believe that the General Assembly intended an unreasonable result, i.e. , for an attorney to be precluded from disclosing, at the direction of his or her client-witness, that which the General Assembly has expressly authorized the client-witness to reveal.
Parenthetically, we take no issue with Justice Wecht's explanation of the derivation of the entry-of-appearance form from circumstances connected with a grand jury investigation involving administrators of the Pennsylvania State University. See Concurring and Dissenting Opinion, at 771–73. Of course, such derivation has little to do with the substantive correctness of the form. Accordingly -- and given that former Justice Cynthia Baldwin is engaged in attorney disciplinary proceedings relative to her conduct in the above setting -- we frankly saw no need to inject her involvement into the present discussion.
V. Summary, Conclusion, and Order
In summary, an attorney who will be privy to matters occurring before an investigating grand jury shall be sworn to secrecy per the requirements of the Investigating Grand Jury Act, either via an appropriately tailored entry-of-appearance form or otherwise. The obligation of confidentially generally extends to all matters occurring before the grand jury, which includes, but is not limited to, what transpires in a grand jury room. A lawyer otherwise subject to secrecy, however, may disclose a client's own testimony to the extent that the client would otherwise be free to do so under applicable law. Such disclosure is also subject to the client's express, knowing, voluntary, and informed consent; the Rules of Professional Conduct; and specific curtailment by a supervising judge in discrete matters following a hearing based on cause shown.
The order of the supervising judge is vacated. To the extent that the entry-of-appearance form continues in use as a vehicle to administer a secrecy oath to attorneys in grand jury matters, the document is to be modified according to the requirements of this opinion.
This appeal is concluded.
Justices Baer, Todd, Dougherty and Mundy join the opinion.
Justice Baer files a concurring opinion in which Chief Justice Saylor and Justices Todd, Dougherty and Mundy join.
Justice Donohue files a concurring and dissenting opinion.
Justice Wecht files a concurring and dissenting opinion.
JUSTICE BAER, concurring
I join the erudite Majority Opinion. I write only to voice my concern with one aspect of its expression. Atypically, the Majority twice invokes this Court's "supervisory authority" to mandate substantive modifications to the entry of appearance form under scrutiny. We do not often invoke our superintendence of the judiciary as justification for a sua sponte form change, and I have no recollection of the Court ever employing this precept to alter a form (or rule) within an opinion. Rather, our normal protocol is to refer the underlying issue to the appropriate committee and permit it to consider adjustments through its customary process. Notably, in this regard, we presently have an ad hoc committee reviewing all aspects of Pennsylvania's grand jury practice.
Be this as it may, I can abide by the Majority's invocation of our supervisory authority and employment thereof in an opinion to alter the subject entry of appearance form in two substantive aspects so long as it is understood that the use of this methodology does not alter the inherent ability of our various committees, including the ad hoc grand jury study group, to modify the form as statutory changes, caselaw, or other superseding factors would require. While the Majority does not say this, it does not suggest anything to the contrary.
Accordingly, I write to clarify that I view the Majority Opinion's modification of the entry of appearance form to resolve the case before us as in no way precluding or, indeed, discouraging, necessary variations now or in the future as recommended by any appropriate Court committee, including the ad hoc committee studying grand jury practice. This understanding would be as of course if the Court had made these adjustments upon a committee's recommendation. The Majority's invocation of our supervisory powers and employment of an opinion to make these alterations should not alter this typical process for rule and form variations.
Chief Justice Saylor and Justices Todd, Dougherty and Mundy join this concurring opinion.
JUSTICE DONOHUE, concurring and dissenting
I join the Majority Opinion because I agree that the General Assembly intended to limit the ability of attorneys participating in grand jury proceedings, including those representing witnesses, to disclose "matters occurring before the grand jury," subject to certain exceptions. See 42 Pa.C.S. § 4549(b). Moreover, the nondisclosure requirements in the entry-of-appearance form created by the Office of Attorney General ("OAG") were overbroad and, if such a form is to be used in future grand jury proceedings, it must be tailored to conform to section 4549(b). See Majority Op. at 760–62. Finally, I agree that attorneys representing grand jury witnesses may enter common interest/joint defense agreements. See id. at 762–63.
I write separately to distance myself from the Majority's sweeping invocation of this Court's "supervisory authority" to redraft the form and to justify what is, in many respects, an advisory opinion on grand jury practice generally.
The facts of this case are scant. The Dioceses of Harrisburg and Greensburg (the "Dioceses") were represented by counsel in connection with the Fortieth Statewide Grand Jury Investigation. Pursuant to this investigation, the grand jury subpoenaed the Dioceses for documents. At some point following their production of documents, counsel for the Dioceses requested a copy of the OAG's notice of submission. The Supervising Judge informed counsel he would need to sign an entry-of-appearance form prior to production of the notice of submission. Counsel refused to sign the form, objecting to the broad nondisclosure requirement contained therein. The Dioceses then filed a joint motion to strike the nondisclosure requirement as unauthorized by the Investigating Grand Jury Act (the "Act"), 42 Pa.C.S. §§ 4541 - 4553.
Section 4550 of the Investigating Grand Jury Act sets forth the requirements for a notice of submission as follows:
Submission of investigations by attorney for the Commonwealth to investigating grand jury.
(a) General rule.-- Before submitting an investigation to the investigating grand jury the attorney for the Commonwealth shall submit a notice to the supervising judge. This notice shall allege that the matter in question should be brought to the attention of the investigating grand jury because the investigative resources of the grand jury are necessary for proper investigation. The notice shall allege that one or more of the investigative resources of the grand jury are required in order to adequately investigate the matter.
(b) Effect of notice.-- After the attorney for the Commonwealth has filed the notice submitting a matter to the investigating grand jury any or all of the investigative resources of the investigating grand jury may be used as regards the investigation.
42 Pa.C.S. § 4550.
Both the Majority and Justice Donohue take issue with my discussion of this background. See Maj. Op. at 765 n.26; Concurring and Dissenting Opinion (Donohue, J.) at 769 n.4. Specifically, Justice Donohue describes my objective recitation of the circumstances that led to the creation of the form as "paint[ing] with a broad brush in describing the alleged genesis" of the form. Id. (emphasis added). Doing so, she asserts, is "dangerous" because former-Justice Baldwin currently is facing disciplinary proceedings. Id. I disagree. My recounting of these circumstances is in no way a proclamation of wrongdoing or unethical behavior. I offer no thoughts or opinions of the propriety of any action taken by any relevant actor, including former-Justice Baldwin. The background I summarize simply recites the facts outlined by the Superior Court in the appeals of the criminal judgments imposed upon the administrators who were called before the grand jury. See Commonwealth v. Curley , 131 A.3d 994 (Pa. Super. 2016) ; Commonwealth v. Spanier , 132 A.3d 481 (Pa. Super. 2016) ; Commonwealth v. Schultz , 133 A.3d 294 (Pa. Super. 2016).
As to Justice Donohue's assertion that these circumstances were the "alleged" genesis of the form, I note that the OAG explained in its brief to this Court that it created the form as a direct response to the concerns that emanated from the confusion caused by the Penn State matters that I relate herein. I do not speculate that the Penn State situation was the genesis of the form; the OAG publicly acknowledges that it was. See Redacted Brief for the OAG at 2-5.
The nondisclosure requirement on the entry-of-appearance form prohibits attorneys representing client-witnesses from disclosing "all that transpires in the Grand Jury room, all matters occurring before the Grand Jury, and all matters and information concerning this Grand Jury obtained in the course of the representation, except when authorized by law or permitted by the Court." Entry-of-Appearance Form (citing 42 Pa.C.S. § 4549(b) ). By contrast, section 4549(b), relating to disclosure of proceedings by participants other than witnesses, provides:
The Majority indicates that counsel for the Dioceses are not in fact "attorneys for a client-witness," presumably referring to the fact that there is no averment that counsel's clients, the Dioceses, has or will testify before the grand jury. See Majority Op. at 761 n. 18 (expressing its rationale for disposing of the issues presented nonetheless); accord In re Fortieth Statewide Investigating Grand Jury , No. 571 M.D. 2016, Notice No. 1, at 8-9 (C.P. Allegheny June 15, 2017) (implying that the Dioceses' right to effective counsel is not presently under attack because "it's unclear at this juncture of the Grand Jury's investigation who will be called as a witness and whether or not counsel for the Dioceses will be permitted to accompany them as witness counsel"). Based on the provision of the Investigating Grand Jury Act relating to "counsel for witnesses," a "witness" who has been "subpoenaed to appear and testify before an investigating grand jury or to produce documents, records or other evidence ... shall be entitled to assistance of counsel ...." 42 Pa.C.S. § 4549(c)(1) (emphasis added). Accordingly, because the Dioceses have been subpoenaed to produce documents, I would view them as "witnesses" under the Act.
See generally Commonwealth v. Curley , 131 A.3d 994 (Pa. Super. 2016) ; Commonwealth v. Spanier , 132 A.3d 481 (Pa. Super. 2016) ; Commonwealth v. Schultz , 133 A.3d 294 (Pa. Super. 2016).
Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the Commonwealth for use in the performance of their duties. The attorneys for the Commonwealth may with the approval of the supervising judge disclose matters occurring before the investigating grand jury including transcripts of testimony to local, State, other state or Federal law enforcement or investigating agencies to assist them in investigating crimes under their investigative jurisdiction. Otherwise a juror, attorney, interpreter, stenographer, operator of a recording device, or any typist who transcribes recorded testimony 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) (emphasis added).
As the Majority properly explains, there is little to indicate that the General Assembly intended the word "attorney" to mean something other than what it is commonly understood to mean, i.e., "those who are licensed to practice law." See Majority Op. at 758. To the extent there is any ambiguity surrounding the meaning of the word, however, an examination of the purpose behind the Act makes clear that this provision must be understood to require a degree of secrecy from all attorneys participating in a grand jury proceeding, not just attorneys for the Commonwealth. See 1 Pa.C.S. 1921(c).
This Court has explained on numerous occasions that the secrecy of grand jury proceedings is "indispensable to the effective functioning of a grand jury." In re Dauphin County Fourth Investigating Grand Jury , 610 Pa. 296, 19 A.3d 491, 503 (2011) ; see also, e.g., Investigating Grand jury of Phila. Cty. , 496 Pa. 452, 437 A.2d 1128, 1130-31 (1981). In describing the policy justifications for such secrecy, we have highlighted the need:
(1) to prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.
Id. We have also explained that the Act, and section 4549(b) in particular, represent the General Assembly's efforts to preserve the traditional rule of secrecy. In re Dauphin County Fourth Investigating Grand Jury , 19 A.3d at 503. Allowing attorneys representing grand jury witnesses to disclose freely all "matters occurring before the grand jury" would substantially undermine the purpose of section 4549(b) as it would create an exception to its secrecy protections that would likely swallow the rule.
That said, there are limitations to an attorney's obligation to keep matters secret. First, the statute is clear that only "matters occurring before the grand jury" may be encompassed by the secrecy oath. See 42 Pa.C.S. § 4549(b). Second, because the Act permits a witness "to disclos[e] his testimony before the investigating grand jury," it must also be understood to allow an attorney representing that witness to disclose her client's testimony to the same degree. See 42 Pa.C.S. § 4549(d) (relating to disclosure of proceedings by witnesses) (emphasis added); see also Majority Op. at 760. Third, as with all participants in a grand jury proceeding, an attorney may disclose matters occurring before the grand jury if "so directed by the court." 42 Pa.C.S. § 4549(b). Any oath of secrecy a private attorney is required to take must strictly reflect these statutory limitations. I am in agreement with the Majority that, relevant to the statutory language, the nondisclosure requirement on the entry-of-appearance form at issue today is overbroad. In its current incarnation, it contains language beyond the Act's mandate and meaning. Thus, the Majority concludes that the language mandating secrecy for "all matters and information concerning this Grand Jury obtained in the course of representation" must be stricken. See Majority Op. at 761–62. The Majority also concludes that certain other language is non-offending ("all matters occurring before the Grand Jury"). See Majority Op. at 761–62. Additionally, the Majority rewrites the form to include language that authorizes attorney disclosure to the extent his or her client/witness is authorized to disclose. See Majority Op. at 760–61. While I have no particular disagreement with the Majority's scrivening, I do not believe that we should engage in the task. Instead, I would strike the nondisclosure language from the form entirely. I would not re-draft the form, as doing so is both unnecessary and counterproductive.
Discussing section 4549(d), the Majority opines that "we do not believe that the Legislature intended [attorney secrecy] to extend in full measure to that which is not otherwise intended to be held in absolute secrecy, i.e. , the testimony of client-witnesses." Majority Op. at 760. This statement begs the question, not explicitly addressed by the Majority, of what is intended to be held in absolute secrecy, including by a witness himself. Unlike section 4549(b), section 4549(d) does not expressly bar a witness from disclosing matters occurring before the grand jury. In my view, however, and implicit in the Majority's reasoning, section 4549(d)'s command that "no witness shall be prohibited from disclosing his testimony" must be understood as a narrow exception to a broader secrecy requirement. Stated differently, the logical corollary to section 4549(d) is that witnesses are prohibited from disclosing matters occurring before the grand jury other than their testimony. See 42 Pa.C.S. § 4549(d).
See Spanier , 132 A.3d at 485.
The portion of the "entry-of-appearance form" that is purely ministerial is, in fact, an entry-of-appearance by a named attorney with an indication of the name of the party he or she represents before the grand jury. I believe it is dangerous to paint with a broad brush in describing the alleged genesis of the OAG form since Attorney Baldwin is the subject of disciplinary proceedings before the Disciplinary Board of the Pennsylvania Supreme Court. See Concurring and Dissenting Op. 771–73 (Wecht, J.) If, however, the facts as recited by Justice Wecht are correct, any alleged ambiguities in Attorney Baldwin's role would have been obviated by a simple form requiring the attorney to state, in writing, the name of the client she represented. The nondisclosure language at issue here is superfluous to that fundamental problem.
See Fed.R.Crim.P. 6(d)(1) (outlining who may be present in the room while the grand jury is in session).
As an initial matter, no attorney is presently being asked to enter his or her appearance in the 40th Statewide Grand Jury proceedings and, as the Majority recognizes, "the present appeal bears hallmarks of a moot controversy." Majority Op. at 756 n. 8 (observing that counsel for the Dioceses was in fact provided with a copy of the notice of submission despite their refusal to sign the entry-of-appearance form and that the tenure of this grand jury has expired).
Moreover, in my view, the development of a nondisclosure form such as the one at issue here should fall, in the first instance, to our ad hoc committee on grand jury practice. The ad hoc committee is comprised of members selected for their expertise in this specialized area and, like our other rules committees, is designed to assist the Court in the exercise of our supervisory authority. We have charged this committee with studying the broader issues attendant to grand jury practice and proposing rules for publication and public comment prior to this Court's consideration and ultimate adoption. The drafting of a nondisclosure form to be used by future grand juries falls squarely within the traditional purview of a rules committee of this Court. The Committee would be guided by this Court's discussion herein of the relevant statutory language and the nuances of grand jury practice. Because I would strike the nondisclosure requirement from the form, I would also conclude that disposing of the Dioceses' other arguments -- regarding the extent to which the nondisclosure requirement infringed upon certain of their rights and those of their counsel -- is inappropriate. This is all the more true in light of the fact that the Dioceses do not ask us to determine whether any specific piece of information constitutes a "matter occurring before the grand jury" such that counsel is prohibited from disclosing it. They do not ask us to determine whether a specific statement their attorneys seek to disclose constitutes witness "testimony" such that they or their counsel may freely share it with a third party. Indeed, these questions are not before us because the limited facts of this case do not give rise to them. The Majority nonetheless posits, as a general proposition, that the term "matters occurring before the grand jury" encompasses events "beyond only what actually transpires in a grand jury room." Majority Op. at 762. The Majority also indicates that "such matters subsume a range of considerations beyond the mere content of a client-witness's testimony, including comments by a supervising judge or the attorney of the Commonwealth made before the grand jury and evidence which may be proffered or discussed during a witness's testimony." Id. at 760.
See Pa.R.Crim.P. 104.
That does not mean that there can be no meritorious challenge to the form in the future. For instance, as the Majority indicates, this Court has exclusive authority to regulate the conduct of attorneys. See Maj. Op. at 760 n.17 (citing Pa. Const. , art. V, § 10 (c) ). It is at least arguable that the Act, by requiring attorneys to maintain silence even though witnesses are not so restrained, intrudes upon that prerogative. However, presently, no one challenges the form, or the Act, upon that basis. That question is not before the Court, and I accordingly express no opinion regarding the merits of such a theory.
In his concurrence, Justice Wecht criticizes the Majority for invoking "supervisory authority" to "rewrite statutes." See Concurring and Dissenting Op. at 777 (Wecht, J.).
While I respectfully disagree with the breadth of the Majority's exercise of our supervisory authority, I observe that the Majority has not "rewritten" section 4549(b). We are called on to decide whether the nondisclosure requirement on the form is authorized by the Act. The Majority and I agree that, as a matter of statutory interpretation, it is not.
Like the Majority, I view the form as prohibiting certain categories of disclosure that are not in fact prohibited by the statute, on the one hand and, on the other hand, not sufficiently accounting for the kinds of disclosures an attorney is statutorily permitted to make (i.e. those same disclosures his or her client-witness is permitted to make). By reading the statutory language in context and by reference to other provisions of the Act, as I must, I conclude that the General Assembly intended attorneys to be bound by secrecy to the extent their clients are so bound. My interpretation, and the Majority's, is based on a plain reading of the statute. Accordingly, I take issue only with the Majority's decision to rewrite the form.
The Majority also cites this Court's call in Dauphin County for a "strong judicial hand" in grand jury proceedings in support of the broad "supervisory authority" it invokes. See Maj. Op. at 764. However, a fair reading of Dauphin County demonstrates that this Court was not recognizing any particular authority of this Court, and that we did not there bestow any authority upon this Court. Rather, we unequivocally were referring to the important role that a supervising judge must play in ensuring that the secrecy of a grand jury is maintained. See Dauphin County , 19 A.3d at 503. Indeed, in the sentences that immediately follow the "strong judicial hand" language, this Court referenced the "seminal role of the supervising judge of a grand jury," noted that "the supervising judge has the singular role in maintaining the confidentiality of grand jury proceedings," and explained that the "supervising judge has the continuing responsibility to oversee grand jury proceedings, a responsibility which includes insuring the solemn oath of secrecy is observed by all participants." Id. (citations and quotation marks omitted). The "strong judicial hand" language did not pertain in any way to the review function of an appellate court.
That said, as I have indicated throughout this opinion, my primary concern is not the source of our "supervising authority." I do not, as the Majority maintains, intend to imply that this Court should not "exercise a meaningful degree of control over grand jury practice." Maj. Op. at 764. I simply cannot agree that this authority can override the General Assembly's clear language (and intent) and permit additional disclosures of secret information beyond the unambiguous limitation set forth in the statute.
The Majority's pronouncements are problematic in principle and in practice. For example, under the Majority's formulation, untethered to any facts, it appears that a witness (and, therefore, that witness' attorney) may disclose the witness' "testimony" but not "comments by a supervising judge or the attorney of the Commonwealth made before the grand jury and evidence which may be proffered or discussed during a witness' testimony." See Majority Op. at 760. It is unclear to me how a witness can disclose his testimony without also implicating the questions he was asked or the evidence he was shown. Perhaps it is possible, but herein lies the problem with deciding a case that is not before us.
Justice Donohue disputes my characterization. See Concurring and Dissenting Opinion (Donohue, J.) at 769–70 n.6. Specifically, Justice Donohue interprets the form as "prohibiting certain categories of disclosure that are not in fact prohibited by the statute," and "not sufficiently accounting for the kinds of disclosures an attorney is statutorily permitted to make." Id. She concludes that, based upon "a plain reading of the statute," the General Assembly intended attorneys to be bound by secrecy only to the same extent that their clients are bound.
However, like the Majority, Justice Donohue fails to account for the General Assembly's use of the term "only" in Subsection 4549(b). The relevant language from that subsection is plain and clear. The subsection states that an "attorney" (which, we all agree, includes private defense lawyers) "may disclose matters before the grand jury only when so directed by the court." 42 Pa.C.S. § 4549(b) (emphasis added). Thus, the General Assembly created a single circumstance in which an "attorney ... may disclose matters." Axiomatically, then, if there is only one circumstance in which an attorney may speak, all others statutorily are prohibited. Thus, the category of disclosure at issue is not permitted as Justice Donohue suggests; it is, in fact, prohibited.
Neither the Majority nor Justice Donohue contends that the language, including the word "only," is ambiguous. We are not permitted to ignore those terms in order to give effect to the General Assembly's presumed intent. See 1 Pa.C.S. § 1921(b) ("When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit."). I am constrained to view the General Assembly's use of the term "only" as a clear expression of legislative intent to limit attorneys in this fashion. I discern no indicia in the language of the Act or otherwise to suggest that the General Assembly did not mean exactly what it said.
Because the unambiguous statutory language affords attorneys only one mechanism to disclose grand jury matters and the Majority adds a second, it is fair to characterize the Majority's actions as rewriting the statute. See Penna. Med. Soc. v. Dep't of Pub. Welfare of Com. , 614 Pa. 574, 39 A.3d 267, 283 (2012) ("In this regard, it is not for the courts to add, by interpretation, to a statute, a requirement which the legislature did not see fit to include.") (citations and internal quotation marks omitted).
In my view, the Majority violates a central jurisprudential tenet that decisional law is meant to develop "incrementally, within the confines of the circumstances of cases as they come before the Court." Scampone v. Highland Park Care Ctr., LLC , 618 Pa. 363, 57 A.3d 582, 604-05 (2012) (insisting that the Court must respect "the necessary narrowness of the individual decisional task and the limitations of imperfect foresight"). Rather than embracing precision, the Majority renders determinations that do not "spring from the facts before us in the appeal" or, frankly, from any facts at all. See id. ; see also Howard ex rel. estate of Ravert v. A.W. Chesterton Co. , 621 Pa. 343, 78 A.3d 605, 610 (2013) (Todd, J., concurring) (urging that "judicial decisions are to be read against their facts, so as to prevent ‘the wooden application of abstract principles to circumstances in which different considerations may pertain’ "). I distance myself from the Majority's pronouncements that are unnecessary to the resolution of this case. In the absence of a record enabling us to do so, this Court should refrain from attempting to flesh out the contours of section 4549(b).For similar reasons, the Majority's discussion of the common interest/joint defense doctrine is problematic. See Majority Op. at 763–64. The Dioceses' arguments about joint defense/common interest agreements are based upon the nondisclosure language in the form. As I have indicated above, I would strike the offending language as a matter of statutory interpretation. Thus, no issue regarding joint defense/common interest agreements remains for this Court's resolution. Nevertheless, the Majority proceeds in part three to engage in a general discussion of joint defense/common interest agreements in grand jury proceedings. While I agree in principle that attorneys representing witnesses in grand jury proceedings may enter common interest/joint defense agreements, the facts presently before us do not implicate the common interest/joint defense doctrine or its contours.
Despite the lack of record facts or any proffered joint defense agreement, the Majority opines that " section 4549(b) does appear to serve as a restraint on the range of information that will be available to counsel to share per a privilege-extending arrangement." Id. at 764. While I certainly recognize the importance of grand jury secrecy, I am not prepared to conclude -- based on a purely hypothetical argument, disconnected from any facts -- that grand jury secrecy per se trumps any specific common interest/joint defense privilege.
While the Majority recognizes that it reaches beyond the controversy before us in drawing the foregoing conclusions, it purports to justify doing so by reference to this Court's "supervisory authority" over grand jury matters. See Majority Op. at 756–57 n. 8. In my view, the supervisory authority we possess with regard to grand jury matters does not give rise to an ability to issue broad pronouncements that are purely advisory in nature, untethered to facts at issue.
In the broader sense, I agree entirely with the learned Majority's astute observation that because the Grand Jury Act incorporates the concept of "supervising judge" into the grand jury process and that this court is given the authority to appoint the supervising judge, 42 Pa.C.S. § 4544(a), the Legislature has reposited the system within judicial control. See Majority Op. at 764–65.
The Majority asserts that I have not explained why permitting a lawyer to disclose what her client is free to disclose is "an unacceptable intrusion into secrecy," an interest that I have emphasized throughout this opinion. Maj. Op. at 765. Let me be clear: I do not believe that it would be such an intrusion. If the choice were mine, I would endorse the Majority's approach. The problem is that the choice is not mine. That decision resides with the General Assembly. That body chose not to enact the Majority's process. We are bound to that legislative judgment, as we are in all matters of statutory interpretation, regardless of the breadth of our supervisory authority.
The Majority appears to invoke the canon of statutory construction that permits courts to interpret statutory provisions in a manner that avoids absurd results. Id. ; see 1 Pa.C.S. § 1922(1) (stating that, in ascertaining statutory intent, courts may presume that "the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable."). However, it is not an absurd result to conclude that the General Assembly, undoubtedly cognizant of the importance of secrecy in grand jury proceedings, intended to limit those authorized to disclose otherwise confidential matters to as few persons as possible, particularly when we consider the deliberate choice of the term "only" in Subsection 4549(b). Further, as I stress repeatedly herein, the statute plainly does not foreclose all possible avenues by which an attorney in this circumstance may speak for her client—she simply may obtain the permission of the supervising judge.
I join the Majority's limited holding in parts one and two to the extent that they find section 4549(b) applicable to attorneys, and that certain provisions in the nondisclosure form were overbroad. As to the balance of the Opinion, including part three, I dissent on the basis that those portions are inappropriately advisory in nature.
JUSTICE WECHT, concurring and dissenting
This case concerns the propriety of an entry-of-appearance form that the Pennsylvania Office of Attorney General ("OAG") created for signature by attorneys appearing in grand jury proceedings. In order to address fully the purpose and necessity of that form, we first must understand why the OAG implemented it.1 In 2009, the OAG convened a statewide investigating grand jury. The panel was charged with probing, among other matters, whether Jerry Sandusky, former Pennsylvania State University ("Penn State") assistant football coach and founder of a non-profit charity that provided services to children, had engaged in a decades-long course of sexual abuse of children, some of which abuse occurred on Penn State's campus. During the course of the grand jury investigation, the OAG learned that three Penn State administrators may have known about at least one incident of on-campus abuse and may have failed to take responsive action.2
Cynthia Baldwin, Esquire, former Pennsylvania Supreme Court Justice and then-General Counsel for Penn State, appeared before the grand jury with each of those administrators. Former-Justice Baldwin indicated to the grand jury's supervising judge that she represented the University,3 but also appeared with, and sat next to, each administrator during his testimony. Each of the three administrators stated on the record that former-Justice Baldwin was his personal lawyer. Former-Justice Baldwin remained in the courtroom and next to each of the three witnesses for the entirety of his testimony, without objection from the prosecutor or the witnesses themselves.
In hindsight, the OAG realized that former-Justice Baldwin's presence may have been problematic under Pennsylvania law. A grand jury is not a judicial proceeding; it is an investigation. As I discuss in detail below, secrecy is essential to a grand jury's operation. To maintain this secrecy, the Investigating Grand Jury Act, 42 Pa.C.S. §§ 4541 -53 ("the Act"), limits those who may be present in the grand jury room. Unlike its federal counterpart,4 the Act permits the attorney for a client-witness to be present with that witness during his or her testimony. 42 Pa.C.S. § 4549(c)(1) ("A witness subpoenaed to appear and testify before an investigating grand jury ... shall be entitled to the assistance of counsel, including assistance during such time as the witness is questioned in the presence of the investigating grand jury."); § 4549(c)(3) ("Such counsel shall be allowed to be present in the grand jury room during the questioning of the witness and shall be allowed to advise the witness but shall make no objections or arguments or otherwise address the grand jury or the attorney for the Commonwealth."). Casual observers or representatives of other entities or individuals are not permitted to be in the grand jury room. This includes lawyers for individuals or entities that are the target of the investigation or may otherwise be implicated by the investigation.
The Penn State proceedings are not before the Court today, and I render no opinion regarding the propriety of any person's or entity's actions during those proceedings. I recite these events only to provide the background for what prompted the OAG to take the actions that gave rise to the legal challenges presented in this case. As noted, the Penn State grand jury situation prompted the OAG to create an entry-of-appearance form. The form sought to provide clarity as to whom (or what) an attorney represented and to ensure that attorneys understood their statutory and rule-based obligations to maintain the secrecy of what they learn during the course of the representation as it relates to the grand jury. The substance of that form reads as follows:
As an attorney properly licensed to practice law in the Commonwealth of Pennsylvania on active status, I hereby enter my appearance on behalf of the witness identified below for purposes of his/her testimony before the [grand jury] and for any activity or proceeding related thereto.
I swear or affirm that, under penalty of contempt, I will keep secret all that transpires in the Grand Jury room, all matters occurring before the Grand Jury, and all matters and information concerning this Grand Jury obtained in the course of representation, except where authorized by law or permitted by the Court. 42 Pa.C.S.A. § 4549(b).
These statements are made subject to the penalties of 18 Pa.C.S. § 4903.
As the learned Majority notes, upon being asked to sign this form, the attorneys for the appellants in this case, the Dioceses of Harrisburg and Greensburg ("the Dioceses"), objected and filed a joint motion to strike. The supervising judge upheld the form's lawfulness. Today's Majority "disapprove[s] the non-disclosure provision of the entry-of-appearance form in its present incarnation." Maj. Op. at 755 n.5. Invoking our "supervisory authority" over grand jury matters, the Majority proceeds to add a provision to the OAG's form—one that contravenes the plain language of the Investigating Grand Jury Act—and then removes another provision that it deems overly broad. Although I agree with some aspects of the Majority's opinion, I cannot join the Majority's expansive exercise of our supervisory powers over grand juries. Moreover, for the reasons that follow, I would address all four of the Dioceses' stated questions, and would reject all of them. I would uphold the form, unaltered, in the face of those specific challenges.5
As an initial matter, like the Majority, I cannot ignore the justiciability challenge that confronts us at the threshold on this appeal. See Maj. Op. at 756–57 n.8. The grand jury's term has expired. The supervising judge provided the lawyers for the Dioceses with the materials they had requested, a request that formed the basis for the initial joint petition that started this appeal. Thus, the circumstances that gave rise to this appeal no longer exist, and it appears that there is no live case or controversy that needs to be resolved. Nonetheless, I agree with the Majority that the case presents issues of such substantial importance that a final resolution of those issues is warranted, rendering this case justiciable. Id.
The modern grand jury is used to investigate, and, where appropriate, charge individuals and entities with crimes. Often, a grand jury is empaneled to investigate matters that initially need to be shielded from public knowledge or external influence. These matters may involve public corruption or organized crime (or both), and may entail vast investigations of large institutions. Secrecy is the backbone of the process, critical to the integrity, accuracy, and reliability of these investigations.
This Court has recognized at least four reasons necessitating secrecy in grand jury proceedings. First, secrecy protects the jurors themselves. Secrecy affords the grand jury "the utmost freedom ... in its deliberations, [preventing] persons subject to indictment or their friends from importuning the grand jurors." In re Dauphin County Fourth Investigating Grand Jury , 610 Pa. 296, 19 A.3d 491, 503 (2011) (citations omitted). Second, the confidential nature of the proceedings guards the witnesses from "subornation of perjury or tampering." Id. Third, secrecy serves to "encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes." Id. And, finally, secrecy of the proceedings ensures that those individuals who are being investigated do not learn of their potential indictment and abscond from the jurisdiction to avoid prosecution. Id.
The United States Supreme Court also has offered similar rationales for adhering steadfastly to the secrecy that traditionally shrouds these proceedings:
We consistently have recognized that the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings. In particular, we have noted several distinct interests served by safeguarding the confidentiality of grand jury proceedings. First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule.
Douglas Oil Co. v. Petrol Stops Northwest , 441 U.S. 211, 218-19, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979) (citation and footnotes omitted).
In order to ensure such secrecy, the General Assembly enacted, inter alia , Subsection 4549(b) of the Act, which reads as follows:
Disclosure of proceedings by participants other than witnesses. —Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the Commonwealth for use in the performance of their duties. The attorneys for the Commonwealth may with the approval of the supervising judge disclose matters occurring before the investigating grand jury including transcripts of testimony to local, State, other state or Federal law enforcement or investigating agencies to assist them in investigating crimes under their investigative jurisdiction.
Otherwise a juror, attorney , interpreter, stenographer, operator of a recording device, or any typist who transcribes recorded testimony 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) (emphasis added).
The Dioceses first argue that Subsection 4549(b) applies only to prosecuting attorneys, not to private defense lawyers. The learned Majority analyzes, and rejects, the Dioceses' statutory interpretation arguments, and holds that the plain language set forth in this subsection unambiguously applies to private attorneys. See Maj. Op. at 758–60. Justice Donohue reaches the same conclusion, but adds that, even if the plain language was ambiguous, a grand jury's reliance upon secrecy to operate would compel the same conclusion. See Concurring and Dissenting Opinion (Donohue, J.) at 767–68. I agree with both the Majority and Justice Donohue. There is nothing in the language or the purpose of the statute to suggest that private attorneys do not fall within the ambit of this subsection.
The clarity of this subsection notwithstanding, the Majority nonetheless exercises our apparently boundless "supervisory authority," and creates an exception to the statute where the General Assembly has seen fit not to do so. In the normal course of statutory interpretation, courts are precluded from overlooking plain statutory language in pursuit of the General Assembly's presumed intent. 1 Pa.C.S. § 1921(b) ("When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit."). Yet, the Majority does just that. The Majority observes no imprecision or ambiguity in Subsection 4549(b), but nonetheless explains that it does not "believe that the Legislature intended [confidentiality of attorneys appearing before grand jury proceedings] to extend in full measure to that which is not otherwise intended to be held in absolute secrecy, i.e. the testimony of client-witnesses." Maj. Op. at 760. In other words, the Majority determines that the General Assembly intended the Act to permit a lawyer to disclose publicly a witness' testimony, so long as the witness knowingly and voluntarily consents. Notably, this scenario appears nowhere in the statute. Justice Donohue agrees, and believes that, because the Grand Jury Act permits a witness to disclose his testimony, "it must also be understood to allow an attorney representing that witness to disclose her client's testimony to the same degree." Concurring and Dissenting Opinion (Donohue, J.) at 768.
There are two substantial defects in the Majority's decision to extend to counsel a witness' statutory right to disclose his or her testimony. First, the nature and extent of our supervisory authority over grand jury proceedings is unclear, rendering its exercise in this case—to override what the Majority concedes is the plain language of the statute—to be suspect, at best. Second, and more importantly, the exception created by the Majority conflicts directly with the plain and unambiguous language of the statute. Hence, I cannot join this part of the Majority's opinion.
The Majority exercises our "supervisory authority" twice in this case, once to add a line to the OAG's form and once to omit a sentence. See Maj. Op. at 760–61, 761–62. Perhaps we have that authority. But the Majority adduces no compelling source for this power, and makes no attempt to define its contours and boundaries. The Majority cites the explanatory note to Rule 3331 of the Pennsylvania Rules of Appellate Procedure.6 However, the Rule itself does not afford this Court any special powers. The Rule only delineates types of orders over which this Court has review jurisdiction. Essentially, the Rule explains that this Court has jurisdiction to review orders emanating from grand jury proceedings. See Pa.R.A.P. 3331(a)(2), (3). The note that follows, to the extent that a note can provide authority to a court, only confirms that Rule 3331 is "intended to provide a simple and expeditious method for Supreme Court supervision of special prosecutions and investigations," including investigating grand juries. Id. , Note. The note does not bestow upon this Court a robust rewriting authority that we may wield as we see fit so long as the matter touches upon the operation of a grand jury.
That said, my primary point of divergence does not center upon whether or not we possess such broad powers. I am troubled most by the way in which that authority is exercised in this case. It is unclear how far this Court can go under the guise of exercising our supervisory authority, but it should be uncontroversial that the one thing we cannot do is direct parties to utilize a procedure that plainly contradicts the unambiguous terms of a statute.
As emphasized above, Subsection 4549(b) requires a private attorney to be sworn to secrecy in all but one circumstance. 42 Pa.C.S. § 4549(b). The statute says that an attorney may disclose matters occurring before the grand jury "only when so directed by the court." Id. Stated differently, the General Assembly limited to one the situations in which an attorney can discuss what he or she learned in a grand jury proceeding: when given leave of court. There is nothing in the statute that suggests the General Assembly intended for additional circumstances to be added to that list. Nor is there any ambiguity, latent or otherwise, to allow the conclusion that the General Assembly could have meant something else. The General Assembly used the term "only." The choice of this term could not more clearly evidence the legislature's intent to carve out only a single exception to its general rule. Yet, the Majority disregards this plain language, determines that the General Assembly could not have intended exactly what it said, and proceeds to graft onto the statute another exception to the general secrecy rule, permitting lawyers to speak if authorized to do so by the testifying witness. However far our supervisory authority reaches, it does not allow us to rewrite statutes.7
The Majority's alternative to the statutory directive undeniably makes sense. Writing on a blank slate, I would endorse the Majority's approach. If a witness can publicly disclose his or her testimony, why should that witness be prohibited from directing her attorney, after full consultation, to speak publicly on her behalf? After all, a lawyer is a client's representative, and serves as his or her mouthpiece in many circumstances. That is what "should" be the case. But that is not what the statutory law permits.8 The Act permits the witness—no one else—to discuss her testimony publicly without first having to obtain leave of court. The Act does not allow anyone to speak on that witness' behalf, including friends, family members, or even the witness' attorney. An attorney wishing to reveal grand jury matters must receive permission from the supervising judge before doing so. The Majority's reasoning notwithstanding, nothing in the unambiguous language of the Act bestows that authority upon a witness' lawyer, even after full consultation with her client. Only the supervising judge has been given the power to allow for additional disclosure. This may not be the most prudent rule. It may even be unconstitutional (although we are not called upon in this case to reach that issue). But the grand jury is governed in the first instance by statute, and the General Assembly has outlined the roles and powers of the relevant participants. Perchance we could use our supervisory authority to supplement what the General Assembly has created, but we abuse that authority when we use it to override statutory provisions with which we disagree.
See , supra , n.1.
Here, the General Assembly prescribed just one situation in which an attorney can disclose grand jury information: by leave of court. Undeterred, today's Majority doubles that statutory directive. I cannot endorse this encroachment upon the functions of the legislative branch of our government.
After inviting me to a "fair reading of [its] opinion," Maj. Op. at 765, the Majority defends its "interpretation" of the Act so as to "permit attorneys to represent their clients." Id. The difficulty that I have with this "interpretation" is not that it results in attorneys being able to represent their clients. It is that this "interpretation" effectively creates a new statutory scheme by enlarging the class of persons authorized by the statute to speak publicly. It would be one thing if the Act did not speak to the issue, or if the Act did not use the unambiguous term "only." But, in light of the clear statutory language and intent, expanding a statutory class in this matter seems more like judicial legislation than statutory interpretation.
As I noted above, that a testifying witness cannot direct his or her lawyer to state publicly what the witness is authorized to state is indeed confounding, in light of the lawyer's essential representative role. However, rather than judicially revising or supplementing the OAG's form in order to bypass this statutory construct, I would rely upon the mechanism included within the statute itself. Subsection 4549(b) permits disclosure of grand jury related information by lawyers "only when so directed by the court." 42 Pa.C.S. § 4549(b). I do not read this provision as preventing a witness who desires her attorney to make her testimony public from petitioning the supervising judge for leave of court for this purpose. To the contrary, I view this grant of authority to the supervising judge as the General Assembly's recognition that there are instances in which the supervising judge must have discretion to deviate from the statutory scheme when doing so is consistent with the interests and purposes of a grand jury investigation.
The Dioceses next argue that the scope of the secrecy obligation in the form is overbroad because it directs attorneys to maintain secrecy for "all matters and information concerning this Grand Jury obtained in the course of representation." See Form, supra , page 773. With scant analysis, the Majority agrees and, employing its "supervisory prerogative," see Maj. Op. at 761, excises the language from the form.
The crux of the Dioceses' argument is that the breadth of the secrecy obligation infringes upon attorneys' ability to represent their clients effectively. Without examination of the role of counsel in these cases or inquiring into how disclosure relates to the interests and purposes of a grand jury, the Majority concludes that prohibiting disclosure in this manner "represents too great an impingement on counsel's ability to effectively represent their clients." Maj. Op. at 761. The only explanation that the Majority offers for this sweeping conclusion is that "facially" this prohibition may relate to information that was not otherwise confidential in the first instance. Id. at n.19.
The Majority also notes that the breadth of the provision could be read to mean that an attorney also could not address with his or her own client matters learned during the course of representation. See Maj. Op. at 761 n.19. However, the Majority quickly points out that the OAG and the supervising judge agreed that such a reading is untenable.
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This aspect of the form is indeed broad. However, the breadth is supported by Pa.R.Crim.P. 231(C). The Rule mandates secrecy as to "any information pertaining to the grand jury except as provided by law." Id. That provision, promulgated by this Court, can be interpreted only as an endorsement of broad secrecy obligations for those involved in the grand jury process. Nonetheless, the Majority relegates this provision to a footnote and "direct[s]" that it be construed in accordance with the Act. See Maj. Op. at 762 n.20. In other words, rather than confront the impact that our own rule has upon the outcome of this case, the Majority commands that its plain terms be misconstrued at best and, at worst, ignored. The Majority then offers an even more troubling justification for disregarding the clear import of the rule. The Majority explains that, "we intend to invoke the rulemaking process to effectuate a clarifying amendment." Id. As of today, Rule 231 is a valid and applicable rule. It is entitled to neutral application by this Court, regardless of any potential changes that may (or may not) be made in the future. To my knowledge, we have never shelved a binding, duly-enacted rule because of our intent to clarify the rule in the future. We should not do so here, particularly when the Majority does not identify any particular defect in the rule's actual terms. I would apply the rule, and, in doing so, I would hold that the breadth of the provision is supported by its plain language.
Here again, the Dioceses' concerns can be alleviated according to the terms of the Act and the Form itself. First, however, I must express my agreement with the Majority that common interest and joint defense agreements are valid and are not proscribed by Pennsylvania law. See Maj. Op. at 763–64. I say so now because a substantial portion of the Dioceses' arguments focuses upon the breadth of the secrecy obligation as preventing the sharing of information between participants in such an agreement. The Dioceses go so far as to argue that the Form actually prevents even the formation of these agreements. The Form does no such thing, particularly in light of the Majority's endorsement of joint defense agreements.
The Dioceses largely are concerned that a broad prohibition on disclosure would: (1) prevent formation of joint defense agreements; (2) obstruct the utilization of documents and other information obtained from third parties; and (3) prohibit attorneys from discussing facts and information with third parties, all of which are necessary to provide zealous representation. Notably, neither of the Dioceses in this case has formed or attempted to form such an agreement, nor has either actually experienced these alleged impingements upon its ability to receive effective representation. Nonetheless, as the Majority indicates, the discussion of the core aspects of this case has "naturally segued" into other issues not presented by the actual facts before us. Maj. Op. at 761 n.18.
As to joint defense agreements, and the sharing of information between their participants, the Form itself exempts from secrecy obligations those disclosures that are "authorized by law." Joint defense agreements, and the free disclosure of information between their participants, are (and, in my view, always have been) "authorized by law." Thus, the Dioceses' argument that these agreements are impaired is unavailing.
The Dioceses' assertion that the breadth of the Form infringes upon their attorneys' ability to interact with third parties is similarly unpersuasive. First, if such communication or interaction is necessary, the affected party may seek leave of court per Subsection 4549(b). Thus, a party in such a situation is not without any recourse.
Second, to the extent that the ability to receive effective representation is impinged by the broad secrecy requirements, that impingement alone does not trigger automatic relief. Courts first must balance the state interests against the right or interest being affected, employing the following four factors:
(1) whether the state interest(s) sought to be achieved can be effectively accomplished in some manner which will not infringe upon interests protected by constitutional rights; (2) whether the state interest(s) is sufficiently compelling when compared with the interests affected, to justify any infringement of those interests; (3) whether the state interest(s) is sufficiently compelling to justify the degree of infringement that is necessary to effectuate that interest; [and] (4) whether the provision under challenge represents the narrowest possible infringement consistent with effectuating the state interest involved.
Pirillo v. Takiff , 462 Pa. 511, 341 A.2d 896, 905 (1975) (capitalization and punctuation modified for clarity).
The state's interest in secrecy is compelling. Without it, witnesses will be exposed to danger, and will be less willing to come forward and testify truthfully. Additionally, secrecy prevents, as best as possible, tipping off of the target of the grand jury investigation, influencing or threatening of witnesses, flight from the jurisdiction, and other impediments to the investigation. Secrecy is the only, and, therefore, the narrowest, means to achieve the goals of the grand jury and to avoid these potential perils. Of course, effective representation is an important right, and should not be infringed upon lightly. Nonetheless, in the specific context of grand jury proceedings, which are investigative in nature, not judicial, the Pirillo factors weigh in favor of the state interest and justify the minimal intrusion upon the right to effective representation.
I do not discount the Dioceses' concerns about their ability to be represented effectively, nor do I pretend to envision all of the circumstances that might arise and affect the balance of these factors. However, the Dioceses' desire to enjoy unrestrained communication with third parties as to grand jury matters, even when made for purposes of effective representation, cannot coexist with the secrecy protections of the grand jury statute. To the extent that some communication with third parties is necessary, those requests may be considered and adjudicated on an instance-by-instance basis. Subsection 4549(b) provides the mechanism for this to occur. It may be cumbersome to seek leave of court for each disclosure, but this is the least restrictive method allowing for balancing of the interests involved.
In sum, while I agree that the Form's secrecy obligation is broad, I conclude that such breadth is consistent with Rule 231 and is not prohibited by the Act. To the extent that the breadth infringes upon the right to effective representation for the limited circumstance of grand jury proceedings, I find that the encroachment is justified per the Pirillo factors. Finally, as always, a party perceiving a necessity for breaching the statute's secrecy obligations first must seek and obtain leave of court.
For many of the same reasons, I also would reject the Dioceses' final two arguments. First, the Dioceses maintain that the secrecy obligations in the Form violate an attorney's right to practice law. Putting aside the irregular circumstance that the Dioceses are arguing on behalf of an attorney's rights, rather than their own, the Dioceses have not demonstrated on the merits that the right to practice law is unduly burdened by this form.
The Dioceses recognize that the right to practice a profession is not absolute. Recently, in Shoul v. Commonwealth, Dep't of Transportation, Bureau of Driver Licensing , ––– Pa. ––––, 173 A.3d 669 (2017), we held that laws that impact a person's occupational interests are subject to a rational basis test. Id. at 677. Here, the state's interest is secrecy in order to protect the operation and integrity of the grand jury process. Requiring confidentiality of those involved in that process, including attorneys, is unquestionably related rationally to that interest. Additionally, for the same reasons, the Pirillo factors militate in the state's favor and justify the limitation upon attorneys in this limited context.
Second, the Dioceses argue that the secrecy obligation violates their attorneys' First Amendment right to free expression. In cases governing attorney speech, the Supreme Court of the United States has approved prohibitions on attorney statements that would pose a "substantial likelihood of material prejudice" to the ongoing legal proceedings. Gentile v. State Bar of Nevada , 501 U.S. 1030, 1075, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991). The High Court explained that such a test "constitutes a constitutionally permissible balance between the First Amendment rights of attorneys in pending cases and the State's interest in fair [proceedings]." Id. Finally, the Court held that the restraint must be narrowly tailored to achieve the state's asserted objective. Id. at 1076, 111 S.Ct. 2720.
As I have explained repeatedly herein, the state's interest in secrecy with regard to grand jury proceedings is compelling. The obligations to maintain that secrecy are necessary, and serve as the narrowest means of achieving that goal. Without secrecy, the grand jury cannot function. If a lawyer was permitted to disclose information learned in the course of representation during grand jury proceedings, secrecy would be destroyed, witnesses would be jeopardized, and the investigation itself could be irreparably imperiled. Thus, such disclosure surely would result in a "substantial likelihood of material prejudice" to the grand jury proceedings.
To be clear, I agree with the Majority's conclusion that the Act applies in full force to defense attorneys, and that common interest/joint defense agreements are valid in Pennsylvania. I join those portions of the Majority's opinion that correspond with these conclusions. Otherwise, I respectfully dissent. Absent a constitutional challenge pertaining to the General Assembly's ability to regulate lawyers, I would uphold the Form as written, for the reasons stated.