Right to Reputation; Due Process; Investigative Grand Jury
In Re: 40th IGJ, 75, 77-82, 84, 86-87, 89 WM 2018
Background
On July 27, 2018, the Supreme Court of Pennsylvania issued an opinion that set in motion procedures that led to the August 14, 2018 public release of a partially redacted version of a grand jury report (Report 1) detailing findings that more than 300 Roman Catholic priests in six of Pennsylvania’s eight dioceses had engaged in the sexual abuse of minors over decades, and that their superiors in the church were aware of the problem and took no effective action to stop it. In re Fortieth Statewide Investigating Grand Jury, 2018 WL 3650493 (Pa. July 27, 2018) (Fortieth Grand Jury). Report 1’s explicit and shocking findings have received widespread attention in the news media locally in Pennsylvania, nationally, and internationally.
Most of the priests identified in Report 1 are deceased. The redactions in Report 1 as released on August 14 were ordered to protect, on an interim basis, the identities of 14 living individuals implicated who had challenged the release of Report 1 on grounds that it violates their constitutionally protected rights to reputation and due process. As the Supreme Court explained:
Dozens of individuals (primarily members of the clergy) responded with challenges to Report 1, generally asserting a denial of constitutional rights. Although the claims differed in particulars to some degree, they shared certain key features. Most of the petitioners alleged that they are named or identified in Report 1 in a way that unconstitutionally infringes on their right to reputation. See Pa. Const. art. I, § 1 (“All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.” (emphasis added)); see also id. § 11. They also claimed that they were denied due process of law based upon the lack of an opportunity to be heard by the grand jury itself or in a pre-deprivation hearing before the supervising judge. See U.S. Const. amend. XIV (precluding the states from depriving “any person of life, liberty, or property, without due process of law”); see also Pa. Const. art. I, §§ 1, 11. See generally Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (“The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965))). Many of the petitioners asserted that they were not aware of, and/or not permitted to appear at, the proceedings before the grand jury.
Fortieth Grand Jury at *3.
As a remedy, the clergy petitioners sought a pre-deprivation hearing to provide them the opportunity to participate in an evidentiary hearing prior to the release of the report. As the court summarized:
There is no challenge presently before this Court to the release of Report 1 at large, nor are we presented with a pure facial constitutional challenge to the provisions of the Investigating Grand Jury Act authorizing the public release of grand jury reports. More narrowly, the arguments presently under review seek an opportunity on Appellants’ part — as members of the Roman Catholic clergy accused by the grand jury of reprehensible conduct — to participate in an evidentiary hearing prior to the release of the report.15 If they can satisfy the supervising judge that the grand jury’s findings are unsupported by a preponderance of the evidence (subsuming an accounting for evidence adduced at the hearing), Appellants ask that unsupported, false, and/or misleading findings be excised from the report prior to its release to the public, in order that their reputations might be preserved. See, e.g., Brief for Appellants at 27, 56-57 (positing that “the Report is riddled with clear errors and improper, misleading, and unreliable accusations and conclusions” and that they should have some chance to demonstrate this before the report is released publicly). In other words, Appellants request a pre-deprivation hearing as a manifestation of fundamental due process and fair play.
Fortieth Grand Jury at *9.
Acknowledging the gravity of the clergy’s reputational and due process concerns, the court rejected the Attorney General’s “all or nothing” proposal that Report 1 either be released in its entirety without redaction or not released at all, and implemented the specific objection/redaction process that led to release of the August 14, 2018 redacted version.
The court then turned to the question of how to resolve the protests of the clergy – now winnowed to approximately 12 separate appeals – whose identities are redacted from the August 14 publicly released version of Report 1. That is the question set for oral argument on September 26, as phrased by the court:
[The] Justices are not of one mind, at this juncture, concerning what process-related remedial measures can be taken now — or if any such measures would be sufficient now to comport with due process norms — to justify the release of the specific criticisms pertaining to Appellants. Further, the Court has determined that it would benefit from oral argument in considering this question. Accordingly, the matter will be calendared for oral argument at the Court’s forthcoming session in September 2018, in Philadelphia.
Fortieth Grand Jury at *13.
Issue:
Given that the term of the Fortieth Grand Jury has expired, what process-related remedial measures can be taken now, if any, to comport with due process norms, to justify the release of the identities of and specific criticisms of the individual clergy who have contested release of redacted sections of Report 1 on right to reputation and due process grounds?
Discussion:
The Supreme Court has posted many of the key documents filed in the case on its website at:
Many filings pre-date the court’s July 27, 2018 ruling setting the matter for argument on September 26. Some filings on both sides are redacted.
The appellant clergy maintain in an extensive supplemental brief filed September 4, 2018, that: They are entitled to notice and a meaningful opportunity to be heard before the Fortieth Grand Jury fact finders; that under the unusual circumstances presented – including what they characterize as the Attorney General’s “onslaught of extrajudicial statements” before and after the court’s July 27, 2018 ruling berating them for asserting their constitutional right to reputation — a meaningful opportunity to be heard is not possible; and that therefore the court should make the August 14, 2018 interim (redacted) report the final report.
In an August 6, 2018 filing, the Fortieth Grand Jury itself offered “objections” to any redaction of Report 1, stating:
A majority of the witnesses testified that they contacted their pastors/diocese/bishops regarding the sexual abuse. For individuals to now argue that they have a right to cross-examine witnesses is offensive. The Roman Catholic church had their chance and chose not to properly investigate the abuse claims at the time the allegations were made. Church documents show that the “investigations”, when conducted, had more to do with the cover-up for the good of the “institution” rather than with protection of abused children.
Amicus curiae briefs have been filed in support of the full disclosure of Report 1 by ChildUSA and BishopAccountability, a victim advocacy group, and by a victim, Todd Frey. An amicus brief in support of the clergy’s position has been filed by the Pennsylvania Association of Criminal Defense Lawyers.
As of this writing, it does not appear from the court’s website that the Attorney General has filed a supplemental brief subsequent to the court’s July 27, 2018 order directed specifically at the issue set for argument.
Related Case:
In Re: Fortieth Statewide Investigating Grand Jury, 45 WM 2017
For more information, contact Kevin McKeon or Dennis Whitaker.