Opinion: Applications for Stay of Release of Report No. 1

Supreme Court of Pennsylvania
June 25, 2018

[with pdf]

[Note: This opinion explains somewhat the terse order issued by the court on 6/20/18, staying the release of Report No. 1 of the 40th Statewide Investigating Grand Jury of Pennsylvania. The opinion references Judge Norman Krumenacker’s 6/5/18 opinion and order.]

Many individuals have lodged challenges to Report No. 1 with the supervising judge, generally asserting a denial of constitutional rights. Although the claims evidently differed in particulars to some degree, they shared certain key commonalities. Most, if not all, of the petitioners alleged that they are named or identified in Report No. 1 in a way that unconstitutionally infringes on their right to reputation and denies them due process based upon the lack of a pre-deprivation hearing and/or an opportunity to be heard by the grand jury. See PA. CONST. art. I, §§1, 11. A number of the petitioners asserted that they were not aware of, or allowed to appear at, the proceedings before the grand jury.

In an opinion and order of June 5, 2018, the supervising judge denied a series of motions seeking pre-deprivation hearings. That decision was released to the public and is self-explanatory. See In re 40th Statewide Investigating Grand Jury, No. 571 M.D. 2016, slip op. at 9 (C.P. Allegheny June 5, 2018). Otherwise, the supervising judge has generally maintained the grand jury seal to ensure that identifying details are not disclosed prematurely.

* * *

Affected individuals have filed multiple petitions for review, along with emergency applications for stay, in this Court. At some dockets, the Office of Attorney General advised that “a temporary stay would be appropriate so that this Court can thoughtfully and dutifully consider the petition for review and the [forthcoming] answer thereto[.]” In later submissions, the Office of Attorney General stated it did not oppose “a brief stay of a matter of days, consistent with the emergency nature of these proceedings.” The Office of Attorney General requested, however, that any such stay be sufficiently limited as to permit release of the report in the week following receipt of the responses.

Some of the petitions for review disclose aspects of Report No. 1. Nevertheless, the report has not yet been presented to this Court in its entirety.

This Court is cognizant that Report No. 1 is a matter of great public interest. The Court has found, however, that a temporary stay is appropriate for the following reasons:

1) the release of Report No. 1 on June 23, 2018 -- while affected individuals are permitted to file responses through June 22, 2018 -- provides inadequate time for essential judicial review;

2) consistent with the supervising judge’s certification, the Court recognizes that many of the petitions for review pending before it raise constitutional claims and matters of first impression;

3) the proceedings on the petitions for review filed in this Court are incomplete, and adequate development and consideration of the constitutional claims presented is necessary;

4) this Court does not possess sufficient information at this time to address the petitions for review as, for example, Report No. 1 has not yet been presented to the Court in its entirety; and

5) the Office of Attorney General has alternatively confirmed the appropriateness of a stay and otherwise indicated that it has no objection.

The Court intends to revisit the stay order when the proceedings before it have advanced to a stage at which either the petitions for review can be resolved, or an informed and fair determination can be made as to whether a continued stay is warranted. The Office of Attorney General may withdraw its agreement and/or acquiescence to the stay at any time and lodge an objection to a continued stay on developed reasoning addressing the petitioners’ entitlement to orderly judicial review.


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