                                    [J-67-2019]
                     IN THE SUPREME COURT OF PENNSYLVANIA
                                 MIDDLE DISTRICT

     SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


    IN RE: GRAND JURY INVESTIGATION               : No. 18 MM 2019
    NO. 18                                        :
                                                  :
                                                  :
    PETITION OF: C.S.                             :
                                                  :
                                                  :
                                                  :
                                                  : ARGUED: September 10, 2019


                                           OPINION


JUSTICE BAER                                               DECIDED: January 22, 2020
        Petitioner has filed in this Court a petition for review, challenging the public release

of the investigating grand jury report of Grand Jury Investigation No. 18 (“Report”).

Petitioner initially claims that the supervising judge of the investigating grand jury erred

by ordering the public release of the Report because the Report is not statutorily

authorized by the Investigating Grand Jury Act (“Act”), 42 Pa.C.S. §§ 4541-4553. In the

alternative, Petitioner contends that the supervising judge erred by ordering the public

release of the Report because the Act was unconstitutionally applied in this case. As

discussed in detail below, we grant Petitioner relief based on the statutory claim and, thus,

need not reach the merits of the constitutional claim.1 For the reasons that follow, we




1 See P.J.S. v. Pennsylvania State Ethics Comm’n, 723 A.2d 174, 176 (Pa. 1999) (“When
a case raises both a constitutional and a non-constitutional issue, a court should not reach
the constitutional issue if the case can properly be decided on non-constitutional
grounds.”).
vacate the supervising judge’s order and remand with instructions to seal the Report

permanently.

                                     I. Background

       Neither the substance of the grand jury proceedings nor the Report have been

made public, and given that we ultimately grant Petitioner relief in form of permanently

sealing the Report, that secrecy should remain in perpetuity. Thus, in conformity with the

secret nature of grand jury proceedings and the form of relief that the Court grants to

Petitioner, we summarize this matter in general terms that are consistent with those facts

that already are available to the public by way of the supervising judge’s redacted opinions

and the primary parties’ redacted briefs.2

       Upon the motion of the Franklin County District Attorney (“District Attorney”), an

investigating grand jury was empaneled in February of 2017. Relevant to the matter sub

judice, the supervising judge approved “an investigation concerning allegations of prior

sexual abuse by [Petitioner] upon numerous children over the past 40 years, and potential

attempts to influence victims from disclosing the crimes over that time frame.”

Supplemental Opinion of Supervising Judge, 3/5/2019, at 1.

       The District Attorney presented evidence to the grand jury over a seven-month

period, including the testimony of Petitioner and five alleged victims. The investigating

grand jury eventually submitted its Report to the supervising judge, who served the Report

on Petitioner with notice of the right to submit a written response. Counsel subsequently

entered an appearance on behalf of Petitioner, and the supervising judge granted, inter

alia, counsel’s motion to seal the Report temporarily.

       Petitioner then filed objections and responses to the Report. In terms of relief,

Petitioner asked the supervising judge to keep the Report sealed permanently.             If,

2 This Court has access to the primary parties’ unredacted briefs, the trial court’s
unredacted opinions, and the Report.

                                      [J-67-2019] - 2
however, the judge rejected this request, Petitioner suggested that the Report should be

redacted to remove all information identifying Petitioner. After holding argument, the

supervising judge issued an order on February 13, 2019.3 Therein, the judge denied

Petitioner’s requests for relief, save for a lone exception explained infra. The judge also

authored an opinion in support of the order.

       In that opinion, the supervising judge listed several “Issues for Resolution.”

Pertinent to the instant petition for review, the judge noted the following issues:

       1. The Report submitted is not contemplated in the definition of
       “investigating grand jury report” provided in 42 Pa.C.S.A. Section 4542 [4]
       where the purpose of the report is to seek justice for alleged victims by
       destroying [Petitioner’s] name and reputation. The proposed administrative
       action is but a small part of the Report.

                                            ***

       3. The Grand Jury Act is unconstitutional as applied in this matter from a
       due process standpoint requiring notice and meaningful opportunity to
       respond which did not occur in this case since there was no discovery.

       4. The preponderance of the evidence standard is inadequate in this case
       and a reasonable doubt standard is the only one that is appropriate for
       application when an individual is named outside the statute of
       limitations. . . .

3 Citing to Rules of Appellate Procedure that govern when a party must file a notice of
appeal, the February 13th order misinformed Petitioner that Petitioner would have 30 days
to file a notice of appeal after the entry of a final order. Order of Supervising Judge,
2/13/2019 (citing Pa.R.A.P. 902 & 903). However, in grand jury matters, an aggrieved
party does not file a notice of appeal to challenge an order; rather, the party seeking
further review must file a petition for review directly to this Court. Pa.R.A.P. 3331(a)(3);
see 42 Pa.C.S. § 722(5) (granting this Court exclusive jurisdiction of appeals from final
orders that directly affect a grand jury or any investigation conducted by it). A petition for
review in grand jury matters must “be filed within ten days after the entry of the order
sought to be reviewed.” Pa.R.A.P. 1512(b)(3).
4 Section 4542 defines “Investigating grand jury report” as a “report submitted by the
investigating grand jury to the supervising judge regarding conditions relating to organized
crime or public corruption or both; or proposing recommendations for legislative,
executive, or administrative action in the public interest based upon stated findings.” 42
Pa.C.S. § 4542.

                                       [J-67-2019] - 3
                                            ***

       6. No legitimate purpose is served by including a current picture of
       [Petitioner] in the Report.
Opinion of Supervising Judge, 2/13/2019, at 4-5.

       Except for removing Petitioner’s picture from the Report, the supervising judge

denied Petitioner relief. In support of her decision, the judge initially discussed at length

this Court’s recent decisions in In re: Fortieth Statewide Investigating Grand Jury, 190

A.3d 560 (Pa. 2018) (“Fortieth Investigating Grand Jury I”), and In re: Fortieth Statewide

Investigating Grand Jury, 197 A.3d 712 (Pa. 2018) (“Fortieth Investigating Grand Jury II”).

Id. at 6-14. Next, the judge relied on these decisions in concluding that Petitioner was

afforded constitutionally sufficient due process throughout the grand jury proceedings.5

Id. at 15-17.

       Regarding Petitioner’s statutory challenge that the Report is not authorized by the

Act, the supervising judge observed that serious allegations of misconduct had been

reported against Petitioner but that, at the inception of the investigating grand jury, it was

unknown whether the investigation would uncover chargeable crimes within the relevant

statutes of limitation. Id. at 18. The judge then reported that the investigation uncovered

additional victims, leading the investigating grand jury to conclude that “it was compelled

to issue a report and provide counseling resources for other potential victims who may

come forward given the reference to the number of victims by all who testified.” Id. The

judge insisted that the mission of the investigation was not to shame Petitioner. Id. at 17.

For these reasons, the judge approved the public release of the Report, save for the

picture of Petitioner that was contained therein.

5As noted, our disposition of this matter does not require us to delve into the merits of
Petitioner’s constitutional claims. Accordingly, we will not detail those claims or the
manner in which the supervising judge disposed of them.



                                       [J-67-2019] - 4
       On February 25, 2019, Petitioner filed the following documents in this Court: (1) a

petition for review; (2) an application to file under seal; and (3) an application to stay and

temporarily seal the Report.6 On March 4, 2019, this Court granted the application to seal

and the application to stay. The District Attorney then filed an answer to the petition for

review.

       On April 29, 2019, this Court issued an order that, inter alia: (1) stated that the

Court would decide the case upon briefing and oral argument; (2) directed the parties to

file redacted versions of their pleadings; and (3) instructed the Prothonotary to provide a

copy of the Court’s order to the Office of Attorney General, given Petitioner’s constitutional

challenges to the Act. Order of Court, 4/29/2019 (citing Pa.R.A.P. 521(b) (“The Attorney

General may be heard on the question of the constitutionality of the statute involved

without formal intervention.”)). All of the parties, including the Office of Attorney General



6       This Court has exclusive jurisdiction to entertain appeals from final orders that,
inter alia, affect a grand jury or any investigation conducted by it. 42 Pa.C.S. § 722(5);
Pa.R.A.P. 3331(a)(3). Generally speaking, a final order disposes of all claims and of all
parties. Pa.R.A.P. 341(b)(1).

        Here, Petitioner is appealing from the supervising judge’s order of February 13,
2019. When the supervising judge entered this order, it technically was not final, as it,
inter alia, afforded Petitioner 20 days to submit a final response for consideration as an
attachment to the Report. Order of Supervising Judge, 2/13/2019. However, Petitioner
did not file an additional response, choosing instead to pursue a petition for review in this
Court. Yet, the supervising judge never entered a final order.

       Given these circumstances, we could remand this matter to the supervising judge
with the direction to enter a final order perfecting this matter for review. However, to
preserve judicial resources and to effectuate judicial economy, we choose not to delay
the disposition of the petition for review for the performance of what would amount to a
ministerial act on the part of the supervising judge, particularly when the judge
inadvertently misinformed Petitioner regarding Petitioner’s appellate rights, supra at 3 n.3,
and where the judge’s February 13th order effectively concluded the litigation of this matter
below.



                                       [J-67-2019] - 5
(“OAG”), complied with the Court’s order, and oral argument on the matter was held on

September 10, 2019.

                                         II. Issues

       In a redacted brief, Petitioner presents the following two issues:

       1. Did the supervising judge err in finding that an investigating grand jury
       report issued for the purpose of providing relief to alleged victims by
       exposing Petitioner, an unindicted, uncharged, private individual, as a
       [redacted] and branding [Petitioner as] a sex offender for life is a type of
       report authorized by the Investigating Grand Jury Act?

       2. Did the supervising judge err in finding the Investigating Grand Jury Act
       constitutional as applied to Petitioner’s case when the preponderance of the
       evidence standard is prescribed by statute without safeguards affording a
       meaningful opportunity to be heard at a determinative part of the
       proceeding?
Petitioner’s Brief at 4.

                       III. Parties’ Arguments Regarding Issue 17

       As noted above, the Act defines “Investigating grand jury report” as a “report

submitted by the investigating grand jury to the supervising judge regarding conditions

relating to organized crime or public corruption or both; or proposing recommendations

for legislative, executive, or administrative action in the public interest based upon stated

findings.” 42 Pa.C.S. § 4542. Stated succinctly, Petitioner contends that the Report fails

to meet this definition. Rather, in Petitioner’s view, the Report simply is an attempt to

shame and punish Petitioner, a result that the Legislature did not intend when it

promulgated the Act. Consequently, Petitioner insists that the supervising judge erred by

ordering the public release of the Report.

       The District Attorney, on the other hand, asserts that the Report makes

recommendations for legislative, executive, or administrative action in the public interest,


7 Given that we summarize the arguments that Petitioner and the District Attorney provide
in their redacted briefs, we explain those parties’ contentions in the most general of terms.

                                      [J-67-2019] - 6
and thus, the Report meets the statutory definition of “Investigating grand jury report.”

Notwithstanding, the District Attorney fails to explain, either in his redacted or unredacted

brief, how the recommended actions in the Report are “in the public interest,” as opposed

to the interest of a specific group, such as the alleged victims. In fact, the District Attorney

insists that the Report focuses on Petitioner’s alleged victims, both identified and

unidentified, which is inconsistent with the District Attorney’s theory that the Report

comports with the statutory definition of “Investigating grand jury report.” In the end, the

District Attorney takes the position, without meaningful support, that the supervising judge

was within her discretion to release the Report publicly.

       The OAG has not had access to the Report. The OAG, however, observes that,

on the public record, it is unclear whether the Report proposes general recommendations

as contemplated by the Act. For example, the OAG notes that the supervising judge’s

opinions suggest that the Report concerns only one private individual and that its

recommendations all relate specifically to that individual. The OAG opines that the Act

requires something more to justify publicly releasing an investigating grand jury report.

The OAG ultimately is of the view that, before this Court confronts any of Petitioner’s

constitutional claims, it should remand the case to the supervising judge with directions

to consider whether the Report meets the statutory definition of “Investigating grand jury

report,” as the judge did not squarely address such an issue in her opinions.

                                 IV. Discussion of Issue 1

       In the recent decisions of Fortieth Investigating Grand Jury I and Fortieth

Investigating Grand Jury II, this Court had the opportunity to expound upon the Act

specifically and grand juries generally. While we need not reiterate every aspect of those

opinions, some fundamental principles discussed therein bear repeating. Specifically, the

“grand jury is an institution with deep historical roots.” Fortieth Investigating Grand Jury




                                       [J-67-2019] - 7
I, 190 A.3d at 568. We have explained the unique aspects of that institution, including its

secret and non-adversarial nature, as well as its relaxed rules of evidence. We have

observed that such features offer “substantial advantages in terms of the gathering and

review of information.” Id. We, however, have further observed that grand juries’ unique

procedures require safeguards to protect publicly accused persons from the release of

unduly prejudicial information. Id. at 568-69.

       Turning to the particulars of the Investigating Grand Jury Act, it allows attorneys

for the Commonwealth, such as the District Attorney here, to apply to the president judge

of the appropriate court of common pleas for an order directing that a county grand jury

be summoned “because of the existence of criminal activity within the county which can

best be fully investigated using the investigative resources of the grand jury.” 42 Pa.C.S.

§ 4543(b); 42 Pa.C.S. § 4550(a). Although the Act provides investigating grand juries

with several powers, the only authority relevant to the current matter is a grand jury’s

ability to submit an investigating grand jury report, as discussed below.

       Pursuant to Subsection 4552(a) of the Act, at any time during its term, a majority

of the investigating grand jury can vote to submit to the supervising judge an investigating

grand jury report. 42 Pa.C.S. § 4552(a). If a supervising judge receives an investigating

grand jury report, she must, in pertinent part, examine the report and the record of the

investigating grand jury, and issue an order accepting and filing such report as a public

record with the court of common pleas, but “only if the report is based upon facts received

in the course of an investigation authorized by this subchapter and is supported by the

preponderance of the evidence.” Id. at § 4552(b). If a supervising judge concludes that

a report is critical of a named individual who ultimately is not indicted for a criminal

offense, then the judge has the discretion to allow that named individual to submit a

response to the allegations contained in the report. Id. at § 4552(e). If the named




                                      [J-67-2019] - 8
individual submits a response, then the supervising judge has the discretion to attach that

response to the report before it is made public. Id.

       As noted above, the ultimate disposition of this matter turns on whether the Report

meets the statutory definition of “Investigating grand jury report.” Resolution of this issue

constitutes a question of law. Accordingly, our scope of review is plenary, and our

standard of review is de novo.8 See Skotnicki v. Ins. Dep’t, 175 A.3d 239, 247 (Pa. 2017)

(“Like all questions of law, our standard of review is de novo, and our scope of review is

plenary.”). Further, to the extent that our analysis requires that we interpret the Act, that

task is guided by the Statutory Construction Act, 1 Pa.C.S. §§ 1501-1991. Pursuant to

the Statutory Construction Act, the object of all statutory construction is to ascertain and

effectuate the General Assembly’s intention. 1 Pa.C.S. § 1921(a). When the words of a

statute are clear and free from ambiguity, the letter of the statute is not to be disregarded

under the pretext of pursuing its spirit. 1 Pa.C.S. § 1921(b).

       Consistent with the plain language of the Act, to be characterized as an

“Investigating grand jury report,” a report must: (1) relate to organized crime, public

corruption, or both; or (2) propose recommendations for legislative, executive, or

administrative action in the public interest based upon stated findings. 42 Pa.C.S. § 4542;

supra, at 3 n.4.    Addressing whether the Report meets any of these standards is

challenging, as it requires divulging the contents of the now-secret document. We

nonetheless begin by observing that the Report indisputably does not relate in any way

to organized crime or public corruption. Thus, the sole question that remains is whether


8 While we acknowledge the OAG’s observation that the supervising judge did not
squarely address whether the Report meets the statutory definition of “Investigating grand
jury report,” we nonetheless respectfully decline the OAG’s request to remand the matter
to allow the judge to consider that issue more thoroughly, as the judge did address the
issue tangentially, Opinion of Supervising Judge, 2/13/2019, at 17-19, and the issue
presents a question of law, which does not require this Court to defer to any findings or
conclusions of the supervising judge.

                                      [J-67-2019] - 9
the Report proposes recommendations for legislative, executive, or administrative action

in the public interest.

       To some degree, the grand jury’s recommendations arguably propose executive

or administrative actions. Yet, when those recommendations are read within the context

of the Report as a whole, it is evident that they are not “in the public interest,” as that term

is utilized in the Act, because they are not directed at broad-based legislative, executive,

or administrative action. Rather, the recommended actions focus exclusively on: (1)

punishing a specific person for alleged criminal conduct for which the person cannot be

tried due to the running of the relevant statutes of limitation; and (2) providing resources

and catharsis to the victims of these alleged crimes. To be clear, that is not to say that

the public does not have some generalized interest in governmental action that brings

healing to victims of unspeakable abuse. However, it is not “in the public interest,” as

contemplated by the Act, to utilize an investigating grand jury report to mete out

punishment or provide relief for specific victims of unproven, albeit serious, crimes when

the traditional means of bringing an individual to justice - e.g., criminal prosecution - are

otherwise unavailable.

                                       V. Conclusion

       Investigating grand juries are useful tools for probing criminal activity that takes

place in this Commonwealth. As we observed above, this unique and powerful procedure

provides the government with “substantial advantages in terms of the gathering and

review of information.” Fortieth Investigating Grand Jury I, 190 A.3d at 568. To protect

the sanctity of this institution, it is incumbent that we carefully apply the statutory

safeguards that the Legislature inserted into the Investigating Grand Jury Act to protect

publicly accused but unindictable persons from the release of unduly prejudicial

information. Id. at 568-69.




                                       [J-67-2019] - 10
       In this matter, the order permitting the public release of the Report runs contrary

to the express terms of the Act. While the grand jury crafted the Report in a good faith

effort to effectuate justice, we respectfully conclude that the supervising judge erred as a

matter of law by entering an order that allowed for the public release of the Report.

Accordingly, we vacate that order and remand the matter to the supervising judge for the

entry of an order permanently sealing the Report.

       Chief Justice Saylor and Justices Todd, Donohue, Dougherty, Wecht and Mundy

join the opinion.

       Justice Donohue files a concurring opinion.




                                     [J-67-2019] - 11
