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Grand Jury Presentment Against PA Attorney General Kane Stayed While Supreme Court Considers Legality of the Special Prosecutor

By: Christopher A. Iacono
February 12, 2015

Recently, the Pennsylvania Supreme Court stayed the Montgomery County District Attorney from acting on a grand jury presentment accusing Attorney General Kathleen Kane of perjury and other offenses in connection with the disclosure of an investigation to a Philadelphia newspaper.  The Pennsylvania Supreme Court ordered that the Montgomery County District Attorney could not file charges against Attorney General Kane, as set forth in the grand jury presentment, until the Supreme Court decides the legality of the appointment of the special prosecutor, Thomas Carluccio, by Court of Common Pleas Judge William Carpenter.

Not only does this matter address critical legal questions, the outcome will have a significant impact on the Commonwealth of Pennsylvania for months -- if not years -- to come.  Absent a legislative grant of authority, is it constitutionally permissible for a judicial branch member to impanel a grand jury and authorize a special Prosecutor to investigate a high ranking official of the executive branch?  If the Supreme Court rules for Attorney General Kane, will the legislative branch quickly enact a Special Prosecutor Law?

Judge Carpenter appointed Mr. Carluccio as Special Prosecutor to investigate allegations that Attorney General Kane’s office disclosed details about the secret investigation of J. Whyatt Mondesire, a former president of the Philadelphia chapter of the NAACP.  Kane has acknowledged disclosing information to The Philadelphia Daily News last year about a 2009 investigation by her Republican predecessor into Mr. Mondesire’s financial activities, but Attorney General Kane has denied breaking any laws.  Attorney General Kane has stated repeatedly that she had not been aware that the information might have included documents presented to a grand jury as part of the Mondesire investigation.  The grand jury concluded that Attorney General Kane disclosed information to the news media in violation of grand jury secrecy laws.

The question before the Pennsylvania Supreme Court is whether a member of the judiciary has the legal authority to appoint a Special Prosecutor to convene and conduct a grand jury to investigate the Attorney General of the Commonwealth.   In her recently filed brief to the Pennsylvania Supreme Court, Attorney General Kane argues that no such authority exists, relying on two main points.

First, there is no current, valid statutory authority for the appointment of a Special Prosecutor to convene and conduct an investigating grand jury into the actions of the Attorney General.   She contends, however, that there is ample authority granting the Attorney General or a District Attorney the exclusive authority to conduct an investigating grand jury.  Specifically, Attorney General Kane argues that the Commonwealth Attorneys Act, 71 P.S. §§ 732-101 et seq. vests authority to conduct investigations under the Investigating Grand Jury Act, 42 Pa. C.S. §§ 4541 et seq. only with the Attorney General.  Additionally, the Investigating Grand Jury Act empowers only the Attorney General or the District Attorney of a county to conduct an investigation.

Attorney General Kane points out that, at one time, the appointment of a Special Independent Prosecutor was lawful in Pennsylvania, under the Independent Counsel Authorization Act, 18 Pa. C.S. §§ 9301 et seq. The Act, however, expired in 2003, and no statute has been enacted to replace it.  Attorney General Kane contends that the legislative history of the Act demonstrates that, in its absence, there is no statutory authority for the appointment of a Special Prosecutor to convene and conduct an investigating grand jury into the actions of the Attorney General.  Additionally, Attorney General Kane points out that Judge Carpenter’s unilateral selection and appointment of a Special Prosecutor would not have been lawful even if the Act was still in effect. According to Attorney General Kane, the Act contained detailed procedures and safeguards designed to prevent abuse, including a two-steps preliminary investigation and appointment of independent counsel only by majority vote of a randomly-selected  three Judge panel, which were not followed in her case.

Second, the existing Pennsylvania precedent of Smith v. Gallagher, 185 A.2d 135 (Pa. 1962) is determinative. In Smith, the Court considered the appointment of an attorney as “Special Prosecutor” by a Judge of the Court of Quarter Sessions of Philadelphia County, who charged the attorney with conducting an investigation using a ‘Special Grand Jury.” The Court held that the Judge had no legal authority to unilaterally select and appoint a Special Prosecutor to conduct an investigating grand jury because: 1) no such office existed under Pennsylvania law; 2) the judge had infringed on the powers held (at that time) solely by the District Attorney.

In response, Judge Carpenter and Mr. Carluccio will likely point to In re Dauphin County Fourth Investigating Grand Jury, 19 A.2d 49 (Pa. 2011) and several other Pennsylvania Supreme Court opinions holding that judges who supervise grand juries may appoint special prosecutors as part of their duty to ensure that proceedings remain secret.  Their brief is due on February 18, 2015. The Supreme Court scheduled oral argument for March 11, 2015.

The decision of the Court certainly will affect Attorney General Kane’s future.  If the Pennsylvania Supreme Court upholds the validity of the Special Prosecutor appointment, Attorney General Kane will likely be charged.   If an arrest came, it would not immediately affect her status as the Attorney General. Under the Pennsylvania Constitution, elected officials who are charged with a crime can remain in office until they have been both convicted and sentenced.  Additionally, Attorney General Kane has stated that she will remain in office if she if formally charged.   But while she may not be forced to leave office, an arrest and formal charges would certainly create a lot of questions for law enforcement in the Commonwealth of Pennsylvania. Most importantly, how can the Commonwealth’s Attorney General work effectively prosecuting offenses across the state if she is herself fighting criminal charges?  Perhaps, if formal charges were brought, she will appoint a deputy to oversee the office operations while the case is pending.  Even if the charges are dropped, what will the long term impact be on the ability of Attorney General Kane to carry out the duties of her office?  Finally, will this whole episode have a chilling effect on the ability of future attorneys general to do the same?