                            [J-40-2018] [MO: Saylor, C.J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                WESTERN DISTRICT


 IN RE: FORTIETH STATEWIDE                      :   No. 45 WM 2017
 INVESTIGATING GRAND JURY                       :
                                                :   Appeal from the Order of the
                                                :   Supervising Judge of the Fortieth
 PETITION OF: DIOCESE OF                        :   Statewide Investigating Grand Jury
 HARRISBURG AND DIOCESE OF                      :   entered on 6/15/17 at Allegheny
 GREENSBURG                                     :   County No. CP-02-MD-0000571-2016
                                                :
                                                :   ARGUED: May 15, 2018


                      CONCURRING AND DISSENTING OPINION


JUSTICE DONOHUE                                     DECIDED: AUGUST 21, 2018

       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 16-18. Finally, I

agree that attorneys representing grand jury witnesses may enter common interest/joint

defense agreements. See id. at 19.

       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.1 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.




1Section 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.



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      The nondisclosure requirement on the entry-of-appearance form prohibits

attorneys representing client-witnesses2 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:

             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.


2  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 17 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.

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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

12. 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, 19 A.3d 491, 503 (Pa. 2011); see also, e.g.,

Investigating Grand jury of Phila. Cty., 437 A.2d 1128, 1130-31 (Pa. 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



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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.3 See 42 Pa.C.S. § 4549(d) (relating to disclosure of

proceedings by witnesses) (emphasis added); see also Majority Op. at 15. 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




3 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 15. 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).

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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 18. The Majority also concludes

that certain other language is non-offending (“all matters occurring before the Grand

Jury”). See Majority Op. at 18. 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 16. 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.4

       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

8 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).




4  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. 1-3 (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.

                            [J-40-2018] [MO: Saylor, C.J.] - 6
        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.5 The Committee would be

guided by this Court’s discussion herein of the relevant statutory language and the

nuances of grand jury practice.6

        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



5   See Pa.R.Crim.P. 104.
6  In his concurrence, Justice Wecht criticizes the Majority for invoking “supervisory
authority” to “rewrite statutes.” See Concurring and Dissenting Op. at 9 (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.

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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 18. 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 14.7

       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, 57 A.3d 582,

604-05 (Pa. 2012) (insisting that the Court must respect “the necessary narrowness of



7 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 14. 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.

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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., 78 A.3d 605, 610 (Pa. 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 20-22. 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




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information that will be available to counsel to share per a privilege-extending

arrangement.” Id. at 20-21. 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 8-9 n. 8. In

my view, the supervisory authority we possess with regard to grand jury matters8 does

not give rise to an ability to issue broad pronouncements that are purely advisory in

nature, untethered to facts at issue.

       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.




8 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 23.


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