Picking up where Pennsylvania Chief Justice Ronald D. Castille left off in a dissenting opinion last year, the state Supreme Court has agreed to hear a case dealing with whether the Pennsylvania Turnpike Commission, currently under investigation by a grand jury, is entitled to attorney-client privilege as a state agency.
The justices, over a dissenting statement from Justice Thomas G. Saylor, granted the turnpike commission's petition for review of attorney-client privilege as it relates to the now-seated statewide investigating grand jury, unsealing the case's docket along the way.
From the only documents on record, it was not exactly clear why state prosecutors have been using a grand jury to look at the commission since 2009.
However, the judge overseeing the grand jury said the state attorney general is asking the grand jury to investigate whether the commission, its commissioners and its employees violated any criminal statutes with regard to its employment practices and its procurement practices, and if it used commission resources to conduct political activities.
According to the docket, the turnpike also applied to file the appeal under seal, which the justices denied in their one-page order last week.
Attorneys for the commission and a spokesperson for the attorney general's office declined to comment.
Justice Saylor, in his two-page dissenting statement, said he would not have granted the commission's request, noting the high court has denied review of privilege assertions in grand jury settings before.
The Supreme Court's majority order follows a 19-page dissenting statement from Justice Castille in November 2011, in which the chief justice said the deeply split high court in Pennsylvania Gaming Control Board v. Office of the Attorney General should have reviewed the issue at the time.
The chief justice said he would have granted review to determine whether the Commonwealth Attorneys Act authorizes the Attorney General's office to compel production of documents from state agencies without allowing for the agencies to assert attorney-client or work-product privileges.
In the current case, in which the grand jury is looking into the turnpike, the commission said state prosecutors were "attempting to usher in a new era of 'privilege.' "
According to the turnpike commission's petition, the commission offered prosecutors a compromise regarding potentially privileged information the attorney general sought. The petition laid out the deal as follows:
Prosecutors would first identify, in general terms, the potentially privileged documents and communications they sought. Attorneys for the commission would then review those documents and provide prosecutors with all unprivileged documents as well as a privilege log listing any documents they withheld.
Attorneys for the attorney general's office could then either disagree with the reasoning for withholding a document. Any contested documents would then be provided to a court for review.
The office of the attorney general declined the offer.
The issue then went before Supervising Judge Barry F. Feudale, who rejected the commission's claims of privilege in an 18-page opinion on April 24.
It was that opinion the turnpike commission asked the Supreme Court to review.
In its petition for review, the turnpike argued that Judge Feudale had failed to recognize the Legislature-extended attorney-client and work-product privilege to, in the turnpike's words, "all attorneys and all clients."
"The supervising judge's interpretation of governmental privileges will yield poor government for the commonwealth, since eliminating privilege will result in considerably less than open and frank communications," the petition read.
The turnpike also noted that Justice Castille had pointed out that the Commonwealth Attorneys Act does not specifically preclude a state agency from invoking attorney-client or work-product privilege.
Matthew H. Haverstick of Conrad O'Brien represents the turnpike commission and declined to comment on the justices' decision.
The commission has already turned over 140,000 pages of documents, according to the petition, which it is providing prosecutors on a "rolling basis." The document load includes emails.
The 33rd Statewide Investigating Grand Jury looking into the turnpike commission is the same body that issued a report in November 2011 recommending the indictment on child sex-abuse charges of former Penn State University assistant football coach Jerry Sandusky.