The attorney for Rep. Thomas Petrolati said there has been no decision on whether his client will testify under oath if the Supreme Judicial Court rejects his bid to quash an independent counsel’s subpoena in connection with an investigation into patronage at the state’s Probation Department.
“I don’t know,” said John Pucci. “We’re taking it one step at a time.”
The SJC appointed Paul Ware Jr. as an independent counsel in May and gave him subpoena power to investigate patronage at the Probation Department. Ware, an attorney with the Boston firm of Goodwin, Procter, subpoenaed Petrolati on Aug 12, but the Ludlow lawmaker, the third-ranking member in the House, balked at testifying.
In oral arguments before six of the seven justices (Chief Justice Margaret Marshall was absent because her mother just passed away), Pucci said the SCJ lacks the power to subpoena witnesses outside of the judicial branch, even retired judicial branch employees. He based his analysis on a narrow reading of state law governing the court’s oversight of judicial branch operations.
Even if the SJC rules that Petrolati can be subpoenaed, Pucci urged the justices to question Ware about his investigation to determine if the testimony of Petrolati is even needed. In his written filings with the court, Pucci has said the justices should take every step to avoid the possibility of a constitutional crisis.
“If this court fails to quash the subpoena, and petitioner refuses to comply, does this court, in the context of its ‘administrative inquiry’ into alleged misconduct within its own branch of government, plan to hold petitioner in contempt?” Pucci asked in an Aug. 27 brief. “Will this court jail petitioner until he submits to the subpoena? How will the Legislature respond? It does not strain the imagination to foresee a constitutional crisis precipitated by the judiciary’s breach of the separation of power doctrine if this subpoena is enforced.”
Kevin Martin, another Goodwin, Procter attorney who is representing Ware, told the justices that it made “perfect sense” for the independent counsel to subpoena Petrolati because he was prominently mentioned in a Boston Globe story about probation that appeared the day before the SJC appointed Ware and placed Probation Commissioner John O’Brien on paid leave. Petrolati was described in The Globe story as “the king of patronage” in courthouses west of Worcester.
Martin told the justices that Ware will not question Petrolati about his legislative duties, which would raise separation of power issues. But he said any effort by Petrolati to land jobs for people at the Probation Department or to solicit political donations from probation officials would fall outside the scope of his official job duties.
After the hearing, Ware said he expected to deliver a report to the SJC on probation no later than mid-October. He said the report may have some loose ends that still need attention, but it would be up to the SJC to decide how to proceed.
