A supervising judge was authorized to appoint a special prosecutor to investigate and prosecute alleged violations of grand jury secrecy requirements by Attorney General Kathleen Kane, the Pennsylvania Supreme Court ruled in In re Thirty-Fifth Statewide Investigating Grand Jury, __ A.3d __ (No. 197 MM 2014, filed March 31, 2015). In this case, the work of the special prosecutor culminated in a grand jury presentment recommending the filing of criminal charges against the Attorney General. General Kane, represented by private counsel, filed an action in quo warranto asking the Court to quash the special prosecutor’s appointment, which Kane argued violated separation of powers.
Chief Justice Saylor authored the opinion announcing the judgment of the Court. The majority observed that under the Investigating Grand Jury Act, supervising judges have substantial responsibility in maintaining confidentiality of grand jury proceedings, on pain of contempt sanctions. Supervising judges are also authorized to bring alleged offenses to the attention of an investigating grand jury, and enjoy ancillary powers. The majority viewed “these provisions, collectively, as affording sufficient authorization to a supervising judge – and, in fact, as creating the necessity – to appoint a special prosecutor in scenarios in which a grand jury may be considering potential criminal conduct on the part of an Attorney for the Commonwealth … or a closely affiliated official.” The Court recognized the “legitimate concerns arising out of a judicial appointment of a special prosecutor,” but decided to follow the approach of the United States Supreme Court and many other jurisdictions finding “such appointments proper as an essential means to vindicate the courts’ own authority.”
In a concurring opinion, Justice Baer explained that the supervising judge’s order appointing the special prosecutor was consistent with his understanding of the use of a special master to investigate contempt of court. Justice Baer rejected the expansive mandate giving the special prosecutor excessive investigative and prosecutorial powers. However, because the special prosecutor turned the presentment against General Kane over to the Montgomery County District Attorney, Justice Baer did not dissent. Justice Stevens authored a concurring opinion expressing similar concerns about the broadness of the special prosecutor’s powers and calling for the legislature to “provide a transparent, orderly method of appointing special prosecutors, sensitive to due process rights.”
In a dissenting opinion, Justice Todd considered the historic structure of grand jury proceedings, the Court’s precedent, the Investigating Grand Jury Act, and the need to avoid separation of powers concerns wherever possible. Justice Todd opined that a supervising judge may authorize a special master to inquire into alleged grand jury confidentiality breaches, but does not have the authority to grant prosecutorial powers to any individual.