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DOCKET NO. #197 MM in Opposition to the Quo Warranto Action of Attorney General Kathleen G. Kane

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FILED 2/18/2015 Supreme Court Middle District IN THE SUPREME COURT OF PENNSYLVANIA DOCKET NO. #197 MM 2014 IN RE: THE 35TH STATEWIDE INVESTIGATING GRAND JURY PETITION OF ATTORNEY GENERAL KATHLEEN G. KANE
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FILED 2/18/2015 Supreme Court Middle District IN THE SUPREME COURT OF PENNSYLVANIA DOCKET NO. #197 MM 2014 IN RE: THE 35TH STATEWIDE INVESTIGATING GRAND JURY PETITION OF ATTORNEY GENERAL KATHLEEN G. KANE BRIEF OF SPECIAL PROSECUTOR in Opposition to the Quo Warranto Action of Attorney General Kathleen G. Kane A Direct Appeal from the Order Entered on May 29, 2014 by the Honorable William R. Carpenter, Supervising Judge of the Thirty-Fifth Statewide Investigating Grand Jury, Appointing Thomas E. Carluccio, Esquire as Special Prosecutor Dated: February 18, 2015 Thomas E. Carluccio, Esquire Attorney I.D. No. # Plymouth Greene Office Campus 1000 Germantown Pike, Suite D-3 Plymouth Meeting, PA (484) Special Prosecutor of Investigating Grand Jury No. #35 Received in Supreme Court FEB id& TABLE OF CONTENTS TABLE OF AUTHORITIES iji I. INTRODUCTION 1 II. STATEMENT OF JURISDICTION 2 III. ORDER IN QUESTION 3 IV. SCOPE AND STANDARD OF REVIEW 4 V. COUNTER STATEMENT OF THE QUESTIONS INVOLVED 5 VI. COUNTER STATEMENT OF THE CASE 6 VH. SUMMARY OF THE ARGUMENT 16 VIII. ARGUMENT 18 A. SUPERVISING JUDGES HAVE THE POWER TO APPOINT SPECIAL PROSECUTORS TO INVESTIGATE GRAND JURY LEAKS UNDER STATUTE AND SUPREME COURT PRECEDENT 18 i... Dauphin County Controls the Matter Before the Court 20 ii. This Court's Holding in Dauphin County Authorizing Supervising Judge Carpenter's Appointment of Carluccio as Special Prosecutor Has Strong Statutory Support 28 iii. Smith v. Gallagher Does Not Apply to the Present Case 29 B. APPOINTMENT OF A SPECIAL PROSECUTOR TO INVESTIGATE THE OAG WAS PROPER BEFORE THE ICAA AND IT HAS BEEN PROPER SINCE THE EXPIRATION OF THE ICAA 36 i. The ICAA Was Enacted to Address Specific Situations Not Present Here 37 ii. Legislative History of the ICAA 39 iii. The ICAA Would Not Have Governed the Present Matter Even if it Were in Effect Today 46 iv. Special Prosecutors were Appointed to Investigate the OAG Prior to the Passage of the ICAA 49 v. Attorney General Kane's Interpretation of the ICAA would Lead to an Absurd Result 54 C. THE ATTORNEY GENERAL WAIVED HER QUO WARRANTO CLAIMS AS A MATTER OF LAW AND AS THEY ARE UNTIMELY 55 D. EVEN IF THE APPOINTMENT OF THE SPECIAL PROSECUTOR WERE QUASHED, THE PRESENTMENT WOULD STAND 58 IX. CONCLUSION 59 TABLE OF AUTHORITIES CASES Allegheny County Investigating Grand Jury, 415 A.2d 73, 78 (Pa. 1980) 25 Brown v. City of Pittsburgh, 409 Pa. 357, 360, 186 A.2d 399, 401 (1962) 63 Castellani v. Scranton Times, 956 A.2d 937 (Pa. 2008) 17, 23, 25, 26, 28, 39 City of Philadelphia v. Goldstein, 357 A.2d 260, 24 Pa.Cmw1th. 434, (1976) 63 Commonwealth v. Carsia, 517 A.2d 956, 958 (Pa. 1985) 44 Commonwealth v. Gribble, 580 Pa. 647, 863 A.2d 455 ( Commonwealth v. Kravitz, 441 Pa. 79, 84, 269 A.2d 912, 914 (1970) 64 Commw. Ex rel. Judicial Conduct Bd. V. Griffin, 918 A.2d 87, 90 (Pa. 2007). 4 In re County Investigating Grand July VIH, 2005 WL (Lack. Com. Pl. 2005), 17, 25, 26, 28, 39, 57, 65 In re Dauphin County Investigating Grand Jury, 19 A.3d 491 (Pa. 2011)...1, 5, 16, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 39, 41, 42, 50, 53, 65 In re Twenty-Fourth Statewide Investigating Grand Jury, 907 A.2d 505 (Pa. 2006) 24 Johnson v. Manhattan R.R. Co., 289 U.S. 479 (1933) 65 Reed v. Harrisburg City Council, 995 A.2d 1137, 1139 (Pa. 2010) 59 Smith v. Gallagher, 185 A.2d 135 (Pa. 1962).. 1, 2, 5, 17, 18, 21, 32, 33, 34, 35, 36, 37, 38, 39, 40 Spykerman v. Levy, 421 A.2d 641, 648 (Pa. 1980) 65 State Dental Council & Exm. Bd. v. Pollock, 318 A.2d 910 (Pa. 1974) 65 STATUTES 1998 Pa. Laws 19, 9312(b)-(c) Pa.C.S et seq 2, Pa.C.S. 4549(b) 24, Pa.C.S Commonwealth Attorneys Act, 71 Pa. Stat. Ann et seq 44 Grand Jury Act, 42 Pa.C.S et seq...2, 6, 7, 9, 18, 21, 22, 24, 30, 31, 39, 41, 50, 57 IGJA, 42 Pa. C.S. 4551(e) 66 Independent Counsel Authorization Act... 1, 2, 5, 17, 18, 40, 41, 42, 43, 45, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 59, 60 -iv- Section 323 of the Judicial Code 2, 18, 21, 31, 39 Section , 31, 39 OTHER AUTHORITIES HB , 47 TREATISES Preserving Integrity: Why Pennsylvania's Independent Counsel Law is Working, 104 Dick L. Rev. 707, 711 n. 37 (2000) 46 I. INTRODUCTION Attorney General Kane argues in her Supplemental Memorandum of Law in Support of her Quo Warranto Action ('Supplemental Brief) that Supervising Judge Carpenter was not authorized to appoint Thomas Carluccio as special prosecutor to investigate alleged grand jury leaks in the present case, citing the alleged absence of statutory authorization and relying on the case of Smith v. Gallagher in arguing that the position of special prosecutoe does not exist in the Commonwealth. Attorney General Kane contends that the five-year period in which the Independent Counsel Authorization Act (the icaa ) was in effect was the only time in Pennsylvania history that supervising judges had the power to appoint special prosecutors to investigate leaks of statewide grand jury information. Finally, Kane attempts to distinguish this matter from Dauphin County by stating that the special prosecutor's powers in that case were more limited than Carluccio's powers were here, and that the same supervising judge overseeing the grand jury in which the leak occurred appointed the special prosecutor in that case. Attorney General Kane's arguments fail because: (1) this Court in Dauphin County held that supervising judges have the authority to appoint special prosecutors to investigate leaks of secret grand jury information; (2) Section 323 of the Judicial Code and 4548 of the Grand Jury Act further authorize supervising judges to appoint special prosecutors to investigate grand jury leaks; (3) Smith is inapplicable to the present matter because the Thirty-Fifth Statewide Investigating Grand Jury was properly empanelled and that Court's dicta in that case regarding special prosecutors is no longer valid; and (4) supervising judges have had the authority to appoint special prosecutors before, during, and after the ICAA. In addition, Kane has waived any objection to the appointment of Carluccio as special prosecutor by her actions in this case. Finally, even if Kane were successful in quashing the appointment, the grand jury's presentment, which recommends charges of perjury, official oppression, false swearing, contempt, and obstruction, would still stand. II. STATEMENT OF JURISDICTION Attorney General Kane's Quo Warranto action challenging the appointment of Thomas E. Carluccio, Esquire, as Special Prosecutor of the Thirty-Fifth Statewide Investigating Grand Jury is subject to this Court's original jurisdiction because, under 42 Pa.C.S et seq., the multicounty Grand Jury to which Carluccio was appointed to serve as Special Prosecutor has statewide jurisdiction. See 42 Pa.C.S. 721 (The Supreme Court shall have original but not exclusive jurisdiction of all cases of...(3) Quo Warranto as to any officer of Statewide jurisdiction. ). - 2- III. ORDER IN QUESTION This Court granted oral argument and directed briefing on Attorney General Kane's Quo Warranto Action to quash Judge Carpenter's appointment of a Special Prosecutor. This matter therefore involves a single order: Supervising Judge Carpenter's Order dated May 29, 2014 appointing Carluccio as the Special Prosecutor of the Thirty-Fifth Statewide Investigating Grand Jury. (See Judge Carpenter's Order dated May 29, 2014, a copy of which is attached hereto at Exhibit A.) On December 30, 2014, Judge Carpenter issued an opinion supporting his May 29, 2014 Order, in which His Honor discussed several opinions from this Court approving or directing the appointment of a special prosecutor to investigate alleged leaks of secret grand jury information. (See Judge Carpenter's Opinion dated December 30, 2014, a copy of which is attached hereto at Exhibit B.) Judge Carpenter noted that this Court's precedents support his authority as the supervising judge of a statewide investigating grand jury to appoint a special prosecutor under the facts of this case. Judge Carpenter also opined that Attorney General Kane's Quo Warranto Action is moot because he has already accepted the Grand Jury's presentment finding reasonable grounds to believe that Attomey General Kane committed multiple criminal violations, and the matter has been - 3- referred by His Honor to the District Attorney of Montgomery County for any potential prosecution. (See Exhibit B.) IV. SCOPE AND STANDARD OF REVIEW The authority of a supervising judge of a statewide investigating grand jury to appoint a special prosecutor to oversee the grand jury's investigation into an alleged leak of secret grand jury information is a question of law that calls for a de novo standard of review and a plenary scope of review. Commw. Ex rel. Judicial Conduct Bd. V. Griffin, 918 A.2d 87, 90 (Pa. 2007). V. COUNTER STATEMENT OF THE QUESTIONS INVOLVED The Court directed the parties to file supplemental briefs discussing, inter alia, the apparent conflict between Smith v. Gallagher, 185 A.2d 135 (Pa. 1962), and In re Dauphin County Investigating Grand Jury, 19 A.3d 491 (Pa. 2011), and the legislative history surrounding the appointment of special prosecutors. (See Supreme Court Order dated January 21, 2015, attached hereto at Exhibit C.) Carluccio respectfully submits that the Court's Order give rise to two main questions: 1. Did Supervising Judge Carpenter have the authority to appoint a special prosecutor to investigate alleged grand jury leaks under this Court's decision in Dauphin County (and is Smith inapplicable where the Thirty- Fifth Statewide Investigating Grand Jury was properly empanelled and that Court's dicta regarding special prosecutors in Pennsylvania is no longer valid)? 2. Was the effective period of the ICAA the only five-year stretch in the history of the Commonwealth that the supervising judge of an investigating grand jury could appoint a non-prosecutor attorney to oversee a grand jury investigation into an alleged violation of grand jury secrecy, which investigation did not target, but happened to lead to, an individual who works for the Office of the Attorney General? - 5- 1/1. COUNTER STATEMENT OF THE CASE On August 28, 2012, then-acting Attorney General Linda L. Kelly filed with the Honorable Ronald D. Castille, then-chief Justice of the Pennsylvania Supreme Court, an application requesting an order convening an additional multicounty investigating grand jury having statewide jurisdiction. (See Acting Attorney General Kelly's August 28, 2012 Application for a Statewide Investigating Grand Jury, attached hereto at Exhibit D.) On October 4, 2012, then Chief Justice Castille granted Acting Attorney General Kelly's Application, finding that it was appropriate under the Investigating Grand July Act, 42 Pa.C.S et seq. (See Chief Justice Castille's Order dated October 4, 2012, attached hereto at Exhibit E.) His Honor designated Judge William R. Carpenter as the Supervising Judge of the 35th Statewide Investigative Grand Jury, to sit in Montgomery County. (See Exhibit E, 2.) Chief Justice Castille's October 4, 2012 Order outlined the parameters of Judge Carpenter's jurisdiction and authority, as is customary for an Order of a Chief Justice of the Pennsylvania Supreme Court designating a judge of the commonwealth as the supervising judge of an investigative grand jury. The Order directed that All applications and motions relating to the work of the Thirty-Fifth Statewide Investigating Grand Jury including motions for disclosure of grand jury transcripts and evidence shall be presented to said Supervising Judge. With respect to investigations, presentments, - 6- reports, and all other proper activities of the Thirty-Fifth Statewide Investigating Grand Jury, Judge William R. Carpenter, as supervising Judge, shall have jurisdiction over all counties throughout the Commonwealth of Pennsylvania. (See Exhibit E at 2.) The Thirty-Fifth Statewide Investigating Grand July was impaneled in January The Thirty-Fifth Statewide Investigating Grand Jury thereafter proceeded in conducting investigations pursuant to submissions from the OAG. After the Grand Jury had been in session for more than one year, Judge Carpenter became aware of circumstances indicating that secret information related to a previous statewide investigating grand jury had been leaked. Supervising Judge Carpenter was infoimed, by a correspondence from former Office of the Attorney General (OAG) prosecutors, of a potential breach of grand jury secrecy. (See letter dated May 8, 2014 from former prosecutors of the OAG to the Supervising Judge, Exhibit F.) In response, Judge Carpenter conducted an in camera hearing on May 12, At such time, no events known by the Supervising Judge, nor other information before the Supervising Judge warranted more than what would be recognized as a straightforward investigation for contempt of court as recognized under The Investigating Grand Jury Act of 1978, 42 Pa.C.S. 4541, et seq. In view of information obtained in the in camera hearing, Judge Carpenter was unable to determine the counties from which the source or sources operated in the unlawful disclosure of grand jury materials afforded secrecy protection. As such, assigmnent for investigation of the breach to a given county district attorney - 7- was untenable under the circumstances.' What was clear from such Hearing was that the breach of grand jury secrecy included publication of certain documentation relating to grand jury proceedings, and that such documentation was believed to be in the exclusive control of the OAG. Clearly, there was no reasonable option available to Judge Carpenter to seek assistance of the Attorney General in undertaking an investigation into the breach. The conflict of interest in having the OAG undertake an investigation into its own internal affairs, and members of its staff was patently obvious. Accordingly, it is clear that in good-faith, Judge Carpenter embarked upon appointing a Special Prosecutor for the limited purpose of investigating offenses related to an alleged disclosure of information protected by law arising from violations of Grand Jury secrecy. In furtherance of such charge, the Special Prosecutor was afforded the necessaly, but limited, authority to subpoena witnesses. (See Exhibit A.) The appointment was made within refmed and wellfocused parameters, and the appointed Special Prosecutor was not authorized by the Order to pursue investigation of other matters, in an indiscriminate manner, or for an indeterminate time period. Attorney General Kane in her Supplemental Brief suggests to the contrary, and thereby provides the unwarranted 1 The Supervising Judge would also have to consider with the appointment of a District Attorney issues beyond simple jurisdiction, including, but not limited to, maintaining oversight, secrecy, and conflicts of interest. - 8- mischaracterization that the appointed Special Prosecutor was authorized to conduct himself in an unconstrained fashion. As a result, following an in camera proceeding which established that there was a leak of secret Grand Jury information, on May 29, 2014, Judge Carpenter found that there was 'reasonable grounds to believe that a further more substantive investigation into allegations that statewide Grand Jury secrecy may have been compromised was warranted, and on that date [Supervising Judge Carpenter] appointed Thomas E. Carluccio, Esquire as Special Prosecutor. (See Judge Catpenter's Opinion dated December 30, 2014, Exhibit B.) Judge Carpenter explained in his Order appointing Carluccio as Special Prosecutor that he did so pursuant to the Grand Jury Act of 1978, 42 Pa.C.S et seq. and the corresponding Pennsylvania Rules of Criminal Procedure, as well as multiple precedents from this Honorable Court related to supervising judges' appointments of special prosecutors to oversee investigations of leaks of secret grand jury information. (See Supervising Judge Carpenter's May 29, 2014 Order appointing Carluccio as Special Prosecutor, Exhibit A.) The Order specified that Carluccio was appointed Special Prosecutor for the limited purpose of overseeing the Grand Jury's investigation into a leak of secret grand jury information. (See Exhibit A.) A copy of the May 29, 2014 Order was served on the Attorney General. Id. Throughout Carluccio's service as special prosecutor, the - 9- Grand Jury continued to hear investigations on other criminal matters with the assistance of the OAG. Although Judge Carpenter has since explained that His Honor's in camera inspection, which initially established that there was a leak of secret Grand Jury information, led him to believe that the leak ``most likely came from the Office of the Attorney General, ( Exhibit B), his Order appointing Carluccio as Special Prosecutor did not direct Carluccio to conduct the Grand Jury's investigation of any particular person or group of people. To the contrary, Judge Carpenter's Order dated May 29, 2014 directed the Special Prosecutor to oversee an investigation of any offense related to any illegal disclosure of information protected by the law and/or intentional and/or negligent violations and rules of Grand Jury secrecy as to a former Statewide Investigating Grand Jury. (See Exhibit A.) The Order was not directed at any individual or entity. Also on May 29, 2014, Judge Camenter sent a letter to then Chief Justice Castille enclosing the order appointing a Special Prosecutor to investigate an allegation that secret Grand Jury information from a prior Grand Jury was released by someone in the Attorney General's Office. (See May 29, 2014 letter from Judge Carpenter to then Chief Justice Castille, attached hereto at Exhibit G.) Like His Honor's Order appointing Carluccio as Special Prosecutor, Judge Carpenter's May 29, 2014 letter to then Chief Justice Castille did not identify as - 10- the potential leaker of secret grand jury information any particular individual, nor did it single out the administration of any particular attorney general. Judge Carpenter explained to then Chief Justice Castille that he had determined that the potential leak warranted the appointment of a special prosecutor after it was brought to [Judge Carpenter's] attention and following His Honor's preliminary review of the leak, which review included sealed testimony from two individuals with knowledge. (See Exhibit G. ) Judge Carpenter also requested that then Chief Justice Castille advise him if he was in error or had exceeded his authority as Supervising Judge in appointing a special prosecutor. (See Exhibit G). Throughout the investigation, the Supervising Judge would get periodic reports from the special prosecutor and forward the progress of the investigation to the Chief Justice of the Pennsylvania Supreme Court through correspondence. Such correspondence clearly demonstrates the cautious and measured manner in which this whole process was conducted. As the investigation developed, it became increasingly clear that some, if not all, the documentation released to the press was disclosed at the direction of Attorney General Kane. As detailed in the factual findings of the Thirty-Fifth Statewide Investigating Grand Jury in its Presentment on this matter, the Grand Jury made specific findings of who was aware of and orchestrated the disclosure. In addition, it was derived from press releases authorized by Attorney General - 11- Kane, reports in news media quoting sources within her inner circle familiar with the matter, and later confirmed by Attorney General Kane herself. Indeed, on page 7 of her Supplemental Brief, Attorney General Kane asserts that she answered truthfully all questions of the Special Prosecutor, and admitted she allegedly authorized the release of a 2014 Memorandum, because she believed it did not contain confidential grand jury information. The subject 2014 Memorandum effectively represented an interview transcript of a special agent within the OAG who i
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