COM. v. SCHAB

MANDERINO, Justice.

This case raises the issue of if and under what circumstances the Attorney General of Pennsylvania may supersede a district attorney and proceed to conduct a criminal prosecution in the county of the superseded district attorney.

On August 31, 1975, Martin I. Schab, a Philadelphia policeman, shot and killed Anthony Frank Majewski in the Sip'N Steak Bar and Restaurant in Philadelphia. The District Attorney's office investigated the killing and concluded that Schab had not violated the penal law because the killing was an excusable homicide.

Subsequently, the Attorney General's office conducted its own investigation. The facts uncovered by this investigation, in which the District Attorney cooperated, were substantially the same as those uncovered by the District Attorney's office. Nevertheless, the Attorney General decided that Schab should be prosecuted. The Attorney General then submitted a request to the Honorable Edward J. Bradley, President Judge of the Court of Common Pleas of Philadelphia County, seeking a written request from Judge Bradley asking the Attorney General to intervene pursuant to Section 907 of the Administrative Code, Act of April 9, 1929, P.L. 177, art. IX, § 907, 71 P. S. § 297. Judge Bradley refused.

The Attorney General then informed the District Attorney that he was superseding him for the purpose of prosecuting Martin I. Schab pursuant to Section 904 of the Administrative Code, 71 P. S. § 294.

Schab was arrested on the same day and a preliminary hearing was scheduled before Judge Cavanaugh on December 31, 1975. Judge Cavanaugh was informed that the District Attorney was contesting the Attorney General's right to conduct the prosecution and he ordered both parties to appear before him on December 31, 1975 to present arguments and briefs on the issue. In an opinion and order dated January 14, 1976, Judge Cavanaugh ruled that the Attorney General could not supersede the District Attorney in this instance and that the district attorney had control of the prosecution. On January 16, 1976, Judge Cavanaugh discharged Schab after being informed that the District Attorney would present no evidence at the preliminary hearing. The Attorney General then asked this Court to assume jurisdiction of the matter. On January 23, 1976, the Court entered an order accepting jurisdiction and tolling the 180-day provision of Pa.R.Crim.P. 1100.

In this appeal, the Attorney General contends that he has both the common law and statutory power to supersede the District Attorney. He further contends that the only question at issue once he exercises this power is whether or not he [the Attorney General] abused his discretion. In essence, the Attorney General's contention is that he may supersede the District Attorney in the conduct of a criminal investigation or criminal prosecution at any time so long as his act is not an abuse of discretion.

We turn first to the Attorney General's contention that he has the common law power to supersede the District Attorney. This contention finds strong support in a series of Pennsylvania cases. In Commonwealth ex rel. Minerd v. Margiotti, 325 Pa. 17, 30, 188 A. 524, 531 (1936), this Court stated:

"We conclude from the review of decided cases and historical and other authorities that the Attorney General of Pennsylvania is clothed with the powers and attributes which enveloped Attorneys General at common law, including the right to . . . supersede and set aside the district attorney when in the attorney general's judgment such action may be necessary." (Emphasis added.)

This statement was repeated by the Court in In Re Investigation by Dauphin County Grand Jury, 332 Pa. 289, 2 A.2d 783 (1939), Appeal of Margiotti, 365 Pa. 330, 75 A.2d 465 (1950), Matson v. Margiotti, 371 Pa. 188, 88 A.2d 892 (1952) and Commonwealth v. Fudeman, 396 Pa. 236, 152 A.2d 428 (1959). Commonwealth ex rel. Minerd v. Margiotti, as well as these latter decisions which adopted its reasoning, were based on the premise that such power "enveloped" an attorney general at common law and the Attorney General of this Commonwealth was clothed with the same power. As this Court has recognized, this reasoning has been severely criticized, and Pennsylvania seems to be the only jurisdiction which has approved the supersession of a District Attorney based on an Attorney General's common law powers. See Packel v. Mirachi, 458 Pa. 602, 327 A.2d 53 (1974).

We find the reasoning in this line of decisions to be erroneous, and therefore they should not be controlling here. The Court in Minerd based its conclusion on an analysis of the powers of the King's Attorney in England, out of which evolved the modern office of the attorney general. The King's attorney, appointed by the Crown, was the chief law enforcement officer in England. He managed all of the Crown's legal affairs, including the prosecution of all suits, both criminal and civil, in which the Crown was interested. The King's Attorney also had the right to appoint deputies, over which he had complete control and could replace at any time. See 325 Pa. at 23-24, 188 A. at 527. The question as to the common law power of an Attorney General to supersede a District Attorney on his own motion never arose at common law for the simple reason that elected prosecuting officers were unknown to England's political institutions.

No analogy can rightly be drawn between that system, one of deputized attorneys general, and the system which has existed in Pennsylvania since the office of elective District Attorney was created by the Act of May 3, 1850, P.L. 654, § 1, 16 P. S. § 3431 (now 16 P. S. § 7701). The elected District Attorney was to perform the function of local prosecutor previously performed by the Deputy Attorney General. More specifically, the duties of the new office were defined as follows:

"The officer so elected shall sign all bills of indictment, and conduct in court all criminal and other prosecutions in the name of the Commonwealth . . . which arise in the county for which he is elected, and perform all duties which now by law are to be performed by deputy attorney generals . . . ."

In 1874, the district attorney was made a constitutional officer. Pa.Const. Art. XIV, § 1 (1874), now in Pa.Const. Art. IX, § 4.

Despite the fundamental change in the method of selecting a local prosecutor, and despite the district attorney's status as a constitutional officer, our Court reasoned: Pennsylvania adopted the office of Attorney General as it existed in England; in the 18th Century England's Attorney General had the power to supersede prosecuting attorneys; therefore, Pennsylvania's Attorney General has the same power. See, e. g., Commonwealth ex rel. Minerd v. Margiotti, supra, 325 Pa. at 22-31, 188 A. at 526-30.

We no longer adhere to this view. Simply because the Attorney General had the common law power to replace his own deputies does not justify the conclusion that he now has the right to supersede an elected District Attorney, an officer unknown to the common law. It would be incongruous to place the district attorney in the position of being responsible to the electorate for the performance of his duties while actual control over his performance was, in effect, in the Attorney General. To countenance such a separation of accountability and control undermines self-government and promotes centralization, see Commonwealth v. Fudeman, 396 Pa. 236, 152 A.2d 428, 438-40 (1959) (Musmanno, J., dissenting), of law enforcement — precisely the approach rejected in Pennsylvania by statute in 1850 and constitutionally in 1874.

On the basis of the foregoing, it is our opinion that the Attorney General of Pennsylvania has no common law power to supersede at his discretion a District Attorney of this Commonwealth.

Having determined that the Attorney General has no common law powers to supersede, at his sole discretion, the office of district attorney, we turn to the relevant statutory provisions to determine if and under what circumstances the Attorney General can supersede a district attorney's office. Our task is to reconcile and give effect to two sections of the Administrative Code, § 904 [71 P. S. § 294] and § 907 [71 P. S. § 297] . Section 904 provides in full:

"The Department of Justice shall have the power, and its duty shall be, with the approval of the Governor:

(a) To investigate any violations, or alleged violations, of the laws of the Commonwealth which may come to its notice;

(b) To take such steps, and adopt such means, as may be reasonably necessary to enforce the laws of the Commonwealth."

Section 907 provides in relevant part:

"When the president judge, in the district having jurisdiction of any criminal proceedings, before any court of oyer and terminer, general jail delivery, or quarter sessions, in this Commonwealth, shall request the Attorney General to do so, in writing, setting forth that, in his judgment, the case is a proper one for the Commonwealth's intervention, the Attorney General is hereby authorized and empowered to retain and employ a special attorney or attorneys, as he may deem necessary, properly to represent the Commonwealth in such proceedings, and to investigate charges, and prosecute the alleged offenders against the law. Any attorney, so retained and employed, shall supersede the district attorney of the county in which the case or cases may arise, and shall investigate, prepare, and bring to trial the case or cases to which he may be assigned."

In construing these two sections of the Administrative Code, we must do so in a manner that gives effect to both provisions, for we are to presume the Legislature intended the entire statute to be effective. 1 Pa.C.S.A. § 1921(a), 1922(2).

We note first that § 907 is the only provision in which the General Assembly gave the Attorney General the explicit authorization to supersede a district attorney. One possible reading of these two sections, therefore, is that § 907 delineates the only method by which the Attorney General can ever supersede a district attorney. This interpretation arguably finds support in the Act of March 20, 1939, P.L. 8, where the General Assembly "repealed absolutely" the Act of July 30, 1938, P.L. 17, which had conferred on the Attorney General the power to supersede, at his discretion, the District Attorney of a county at any stage of an investigation or proceeding pending in that county's criminal courts. This action indicated, at the least, a legislative disapproval of a system in which the Attorney General could, at his pleasure, displace an elected official in the execution of his governmental responsibility. We could reasonably conclude that the Legislature believed that the elective process, as well as § 907's authorization of a president judge to intervene in appropriate cases, were sufficient checks on the office of District Attorney.

Another possible construction of §§ 904 and 907, one urged upon us by the Attorney General, is to hold § 907 is but one prescribed avenue of supersession, and the Attorney General can supersede a district attorney at will providing his decision to do so is not an abuse of discretion. Under this view, the appellant argues, the Attorney General's legislative mandate to enforce the laws of the Commonwealth includes the power to supersede a district attorney despite the seeming limitation of § 907.

We reject both of these constructions. In our view, neither represents a proper accommodation of the two statutory provisions or the important interests they attempt to promote. Section 907, the only section which expressly authorizes supersession, speaks to the limited situation of a president judge requesting that the attorney general become involved in a proper case in a prosecutorial matter. We reject the position that § 907 represents the only instance in which the Attorney General can ever supersede a District Attorney. That construction would give insufficient consideration to § 904, which empowers the Attorney General "to take such steps, and adopt such means, as may be reasonably necessary to enforce the laws of the Commonwealth." If a situation arose where the Attorney General was warranted in believing that superseding a district attorney was a necessary means of enforcing those laws, he would be helpless if supersession could only be initiated by the president judge and not by the Attorney General.

On the other hand, we reject the notion that § 907 in no way limits an Attorney General who desires to supersede a District Attorney. In drafting § 907, our Legislature enacted a scheme whereby a member of the judicial branch could act as a check on an elected District Attorney who could not or would not carry out his prosecutorial responsibilities. Once a president judge requested the Attorney General to involve his offices in a criminal matter, only then was his power plenary. We believe that § 907 evidences a legislative belief that the Attorney General's entry into local law enforcement should be exercised with circumspection, and that § 907 negates the Attorney General's argument that with the narrow exception of an abuse of discretion, his power to supersede a district attorney is untrammelled.

Although § 907 provides that a president judge may initiate a request that the Attorney General supersede a District Attorney, legislation is silent on the procedure that the Attorney General must use if the Attorney General desires to initiate action in order to perform his duties under § 904. We believe that § 904 and § 907 can be properly accommodated by holding that if the Attorney General initiates action under § 904, he must do so by presenting a petition to the president judge. Because of § 904, we cannot deny to the Attorney General the right to initiate action. Because of § 907, we cannot allow the Attorney General to initiate action before a judge other than the president judge. The president judge's decision, in any event, would be a final judgment subject to appellate review.

Requiring the president judge's authorization, whether action is initiated by the president judge or by the Attorney General's petition, is the only means of giving proper deference to the legislative intent of § 907. Although there is no evidence of "judge shopping" in this case, our holding prevents that possibility whereby the Attorney General could possibly circumvent and undermine the authority of the president judge contained in § 907. Since the president judge's determination on the issue of supersession is subject to appellate review, proper effect is given to the Attorney General's obligation under § 904 "to take such steps, and adopt such means, as may be reasonably necessary to enforce the laws of the Commonwealth."

The issue remains as to the proper standard and the burden of proof that should be applied by the president judge, as well as the appellate court, in reviewing a president judge's decision to allow or deny the Attorney General to supersede a District Attorney. We believe, in view of the fact that the District Attorney is statutorily and constitutionally responsible for law enforcement at the local level, that the Attorney General must establish good cause for the supersession. Supersession is not a "reasonably necessary [step] to enforce the laws of the Commonwealth" unless it is established, after a consideration of all the circumstances, that the District Attorney abused his discretion. Our holding therefore does no violence to § 904 of the Administrative Code. Moreover, we think significant the expressed preference of the General Assembly which has retained for nearly half a century the statute vesting this discretion in the president judge (§ 907) but rejecting a provision giving the Attorney General the same discretion. See Pa.Leg.J. 12-15, 38-42, 62 (1938); Pa.Leg.J. 414-15, 465-68, 624 (1939). In insulating to this degree the District Attorney's office from outside intervention, we do no more than confirm the legislative judgment that accountability and responsibility in law enforcement should coexist to the fullest extent possible.

In this case, the Attorney General did not seek appellate review of President Judge Bradley's refusal to authorize intervention and did not initiate a formal petition before the president judge. Thus, no hearing has been held before the president judge in order to determine whether the Attorney General is able to establish good cause for the supersession. The lack of any petition or hearing before the president judge is understandable since the Attorney General did not have the benefit of our present decision. We thus deem it appropriate to afford the Attorney General an opportunity to initiate a petition for supersession before the president judge.

Accordingly, the order of Judge Cavanaugh is vacated and any action before Judge Cavanaugh relating to the issue of supersession in this case is dismissed without prejudice to the Attorney General to proceed, if desired, before the president judge by filing a petition for supersession within thirty days of the filing of this opinion.

EAGEN, C. J., and O'BRIEN, J., join in this opinion.

POMEROY, J., filed a separate opinion in which NIX, J., joined.

ROBERTS, J., filed a dissenting opinion in support of reversal.

JONES, former C. J., did not participate in the decision of this case.

POMEROY, Justice, separate opinion.

I respectfully disagree with the plurality opinion of Mr. Justice MANDERINO. In my view, it misconstrues the Administrative Code of 1929 and fails to present adequate reasons for overruling this Court's many prior decisions on the question of supersession.

Under Section 704 of the Code, 71 P. S. § 244, the Attorney General is declared to be "the chief law officer of the Commonwealth," and he has the power, under Section 904 of the Code, 71 P. S. § 294, "[t]o investigate any violations, or alleged violations, of the laws of the Commonwealth which may come to [his] notice," and "[t]o take such steps, and adopt such means, as may be reasonably necessary to enforce the laws of the Commonwealth." I believe that this broad language adopts the common law powers of the Attorney General to supersede his subordinates, see Commonwealth ex rel. Minerd v. Margiotti, 325 Pa. 17, 21-31, 188 A. 524 (1936); Margiotti Appeal, 365 Pa. 330, 75 A.2d 465 (1950); Statutory Construction Act of 1972, 1 Pa. C.S. 1921(c)(5), and that this supervisory power remains until such time as the General Assembly indicates that it is to be limited. See People v. Karalla, 35 Mich. App. 541, 192 N.W.2d 676, 678 (1971).

In addition, I cannot agree with the plurality's conclusion that the General Assembly has in fact limited the power of supersession. In the first place, the creation of the locally elected office of district attorney by the Act of May 3, 1850, P.L. 654, § 1, 16 P. S. § 9952 (1956), together with the grant of power in district attorneys to "perform all the duties which now by law are to be performed by deputy attorneys general," id., does not to me indicate a legislative intent to create autonomous local law enforcement bodies. Nor does the district attorney's status as a constitutional officer, Pa.Const. art. IX, § 4, reflect any similar intent, since the Constitution is altogether silent on the question of the district attorney's powers and duties. Mr. Justice MANDERINO's reliance on these provisions as limitations on the Attorney General's supervisory power represents an adoption of constructions that have been rejected by this Court. Compare Commonwealth v. Fudeman, 396 Pa. 236, 152 A.2d 428, cert. denied, 361 U.S. 902, 80 S.Ct. 211, 4 L.Ed.2d 157 (1959), with id., 396 Pa. at 244-77, 152 A.2d 428 (Musmanno, J., dissenting). In my view those interpretations have been properly rejected both because of the Attorney General's status as chief law officer of the Commonwealth and because of a district attorney's duty to enforce the laws of the Commonwealth — a duty in which all of Pennsylvania's citizens, no matter where they live, have an interest.

In the second place, I cannot agree that Section 907 of the Administrative Code represents a limitation on the Attorney General's power of supersession. This statute, as I read it, provides another means by which the Department of Justice may be notified of alleged violations of the laws of the Commonwealth, see Administrative Code § 904(a), supra, and regulates the manner in which outside counsel ("special attorneys") may be employed by the Department. This Court has rejected the contention that this section operates as a limitation, see Commonwealth v. Lehman, 309 Pa. 486, 164 A. 526 (1932); Commonwealth ex rel. Minerd v. Margiotti, 325 Pa. 17, 188 A. 524 (1936), and if the Administrative Code should be amended to overturn our prior construction of its provisions, that task is one for the General Assembly, not this Court. In sum, I believe that the law should remain as it long has been: the Attorney General has the power to supersede a district attorney, subject to judicial review of his action for an abuse of discretion. Commonwealth ex rel. Minerd v. Margiotti, supra; Margiotti Appeal, supra; Commonwealth v. Fudeman, supra.

Whether the Attorney General has abused his discretion in seeking to supersede the district attorney has not been determined in this case, and indeed cannot be determined on the record before us. The arguments before the court below were centered on the Attorney General's power to supersede vel non, and the allegations in the complaint charging murder have never been tested at a preliminary hearing. The Attorney General's "action should not be made subject to court approval initially since the matter is one within the functions and responsibilities of the executive branch of government. A sufficient check against arbitrary use of the power of supersession can be found in a requirement that the grounds for the action be placed on the record . . ." ABA Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function § 2.10(a), Commentary, at 75 (Tent.Draft, 1970). In view of our case law, such reasons should be filed with the lower court. In re Dauphin County Grand Jury Investigation Proceedings (No. 3) [In re Shelley], 332 Pa. 358, 367, 2 A.2d 809 (1938). If the district attorney then chooses to contest the Attorney General's action, he should of course be able to do so; although the conflict is one between executive officers, a legal standard is involved, the authoritative application of which is for the courts. See, e. g., United States v. Nixon, 418 U.S. 683, 692-98, 94 S.Ct. 3090, 41 L.Ed.2d 1039, 1055-58 (1974). Since such a contest may, as this one has, become protracted and involve collateral issues, and since some problems may arise with regard to the defendant's rights, see, e. g., Pa.R.Crim.P. 1100, it would be preferable to have the question of the propriety of supersession adjudicated in a proceeding separate from the preliminary hearing itself.

I would vacate the order of the court below and remand this case for further proceedings consistent with this opinion.

NIX, J., joins in this separate opinion.