Shohin Vance and Joshua Voss of Kleinbard.

Like the mythical Bigfoot, grand jury "final orders" have been described (in statute), but, to date, have only once been "seen." Yet, not unlike the infamous 1960s film that may or may not depict Bigfoot, we may have recently caught a glimpse of another grainy image of a final order. Indeed, when the Pennsylvania Supreme Court issued its opinion in In re Grand Jury Investigation No. 18 (Petition of C.S.), No. 18 MM 2019 (Pa. Jan. 22, 2020), it spent time in (big) footnote six telling us that such orders may yet be real.

Let us explain. The appeal in Grand Jury Investigation No. 18 was initiated by a petition for review from an order of the supervising judge of a county investigating grand jury in which the judge largely overruled various objections to a then-forthcoming grand jury report. The order was noted by the Supreme Court to be not "technically" final because it gave the petitioner 20 days to submit a final response to the grand jury report. The court further observed the petitioner appealed before submitting any such response and that the supervising judge then never entered a final order. The Supreme Court decided to hear the case nevertheless, in the interest of judicial efficiency.

This discussion (in a footnote, no less) of what may otherwise seem to be banal appellate procedure is significant, at least to those who practice before grand juries and understand that this footnote is the closest the Supreme Court has come in over 30 years to again affirming that final orders in grand jury cases are sometimes issued. To fully understand the significance, however, a brief primer on statutory and caselaw history is in order.

To that end, in 1980, the General Assembly modified Section 722 of the Judiciary Code to provide that the Supreme Court would have direct jurisdiction over appeals of "final orders" of a common pleas court "where the matter relates to the convening, supervision, administration, operation or discharge of an investigating grand jury or otherwise directly affects such a grand jury or any investigation conducted by it." That is, the General Assembly declared two things: some orders of grand juries are "final orders"; and the Supreme Court would have direct appellate jurisdiction over them. Nevertheless, the right of direct appeal afforded by this provision has proven somewhat elusive.

Indeed, based on our review of the relevant published authority in the 39 years since the General Assembly vested the Supreme Court with jurisdiction over grand jury "final orders" in Section 722, there is no shortage of authority discussing what orders are not final. See, e.g., In re Thirty-Third Statewide Investigating Grand Jury, 86 A.3d 204, 206 (Pa. 2014) and In re Fourth Dauphin County Investigating Grand Jury, 946 A.2d 666, 668 (Pa. 2008). However, we have been able to locate just one case where the court characterized its review of an investigating grand jury matter as emanating from a final order; but even then, the court's discussion on that issue consisted of a single sentence relegated to a footnote. See In re Investigating Grand Jury of Chester County, Subpoena No. 91, 544 A.2d 924, 924 n.1 (Pa. 1988) ("This Court's jurisdiction is properly invoked pursuant to 42 Pa.C.S. Section 722(5), regarding a final order of a court of common pleas concerning the supervision of an investigating grand jury."). (The Supreme Court may have also found a final order in In re Bucks County Investigating Grand Jury, 861 A.2d 876 (Pa. 2004), but the court only entered a per curiam reversal, without expressly saying on what grounds it reviewed the order.).

That being said, it would be unwise to conclude that the dearth of precedent in this regard is simply a result of inadequate attention by the Supreme Court. To the contrary, over the last few years, this court has expended significant time and resources on matters involving grand jury practice, issuing several significant decisions on the subject, see, e.g., In re Fortieth Statewide Investigating Grand Jury, 191 A.3d 750 (Pa. 2018) and In re Fortieth Statewide Investigating Grand Jury, 197 A.3d 712 (Pa. 2018), and even empaneling a seven-person task force, which recently published a comprehensive report assessing the legal landscape in which grand juries operate.

Moreover, in light of the unique nature of grand juries, the absence of clear guidance in this respect is not altogether surprising, given that the prevailing definition of a final order—i.e., one that disposes of "all claims and all parties"—seems inapplicable to investigating grand juries, since, as a practical matter, there are no "claims" or "parties" of which to dispose. Indeed, the court's ability to provide meaningful direction has likely been complicated by other established jurisprudential principles as well, such as the prohibition against advisory opinions and the general policy against piecemeal litigation.

Nevertheless, while the void should not be interpreted as a failure on the part of the Supreme Court, the importance of filling it remains. The significance of the Supreme Court not identifying what is a grand jury final order is buried in Appellate Rule 3331 (after Aug. 1, 2020, this will be Appellate Rule 1611), which provides the mechanical process for perfecting appeals from grand jury orders. Specifically, paragraph (d) of the rule provides as follows: "The interlocutory or final nature of an order shall not be affected by this rule and, unless independent grounds appear for the review of an interlocutory order, the interlocutory nature of the order will be a sufficient reason for denying the petition. The denial of a petition shall be deemed a disposition on the merits unless otherwise ordered or unless the petition expressly seeks permission to appeal from an interlocutory order and asserts no other basis of jurisdiction on appeal." This rule effectively holds that if one files an appeal from a grand jury order and the court concludes the order is not a "final" one, then the court is not only justified in denying the appeal outright, but also it can use that denial to forever refuse to hear the issue, even if a final order is issued in the future. In contrast, if an order is final, the Supreme Court has to hear the appeal as of right under Section 722. Hence, it is a big deal to be able to separate what is and is not a final order.

This leads us back to Grand Jury Investigation No. 18 and the hope that it provides. Footnote six appears to contemplate that an order fully resolving all issues concerning a report about a single individual may well be a final order, capable of immediate appellate review as of right. If nothing else, the passage evinces the Supreme Court's recognition of some of the conceptual problems involved in assessing an order's "finality" in this realm. If that is in fact the case, we may be finally seeing what the General Assembly contemplated in 1980 when it conferred direct jurisdiction on the court: prompt review of certain classes of grand jury matters. And this is important because it can serve to get the Supreme Court to entertain more issues of significant public and private concern about grand jury practice and procedure, which matters, as mentioned above, have recently become the stuff of significant Supreme Court precedent.

In the end, we hope the grainy footage of a grand jury final order in Grand Jury Investigation No. 18 becomes clearer in future cases and proves that such orders are the stuff of reality and not legend.

Joshua J. Voss is a partner in Kleinbard's litigation department and is a member of the government relations and political law groups. His practice focuses on state government litigation, appellate practice, grand jury investigations and commercial litigation.

Shohin Vance is an associate in the firm's litigation department and is a member of the government relations and political law groups.