Update: Montgomery County District Attorney Risa Vetri Ferman, to whom office the case has been referred, said Wednesday that in view of the state Supreme Court's decision, her office would review the grand jury case and investigate further if need be before determining if harges are warranted "against any individual."
The Pennsylvania Supreme Court on Tuesday rejected state Attorney General Kathleen Kane's challenge to a grand jury's recommendation that she face criminal charges.
In a 4-1 decision, the court said judges have full legal authority to appoint special prosecutors to investigate leaks from grand juries.
The opinion means that Montgomery County District Attorney Risa Vetri Ferman must now decide whether to charge Kane, a Democrat, with perjury, obstruction of justice, and other crimes for the alleged leak of information to a newspaper in a bid to embarrass a critic.
Lanny J. Davis, a spokesman for Kane, said the attorney general was disappointed at her loss.
"We have faith in the judicial system and that the district attorney of Montgomery County will look at the evidence and the law and find that Attorney General Kane is innocent of any violations of the law," he said in a statement.
Ferman, a Republican, could not be reached for comment.
The grand jury, led by special prosecutor Thomas E. Carluccio, recommended that Kane face charges of perjury, obstruction, false swearing, contempt of court, and official oppression.
The high court's five members - there are two vacancies - split, 4-1. The three Republicans, including Chief Justice Thomas Saylor, were joined by Democrat Max Baer in the majority opinion. The two other Republicans in the majority were Justices J. Michael Eakin and Correale Stevens.
Justice Debra M. Todd, a Democrat, was the sole dissenter, but even her dissent provided Kane with little solace. Though Todd found no legal support for a judicial appointment of a special prosecutor, she said that for technical reasons she would have argued for giving Ferman permission to bring a case anyway.
In a 14-page opinion written by Saylor, who is in his first year as chief justice, the Supreme Court rejected Kane's argument that Montgomery County Judge William Carpenter, a Republican, lacked legal authority to appoint Carluccio.
In fact, Saylor wrote, Carpenter "acted with his authority and sound prerogative in appointing the special prosecutor."
Kane has argued that no explicit state law authorized the appointment of special prosecutors and the last one to do so expired a decade ago.
The high court did not dispute that, but said the point was irrelevant. It said judges had inherent authority to see that their orders were obeyed, notably including orders that grand jury proceedings be kept silent.
As The Inquirer has previously reported, Carluccio led an investigation that found that Kane ignored warnings from her own aides and provided the Philadelphia Daily News with grand jury information she believed would embarrass a critic, former state prosecutor Frank Fina.
She arranged for the newspaper to receive information suggesting that Fina had failed to aggressively pursue a corruption case against a Philadelphia civil rights leader. Fina has vigorously denied that.
Kane has admitted providing some information, but said she acted lawfully in doing so.
While Davis has said Kane gave out the information out of a commitment to "transparency," the grand jury found otherwise. It said she engineered a leak to retaliate against Fina.
Her detractors say Kane blamed Fina for the barrage of criticism she received after The Inquirer revealed last spring that she had declined to prosecute Democratic officials from Philadelphia who were caught on tape accepting cash or jewelry during an undercover sting operation.
The sting was overseen by Fina, who left the Attorney General's Office shortly after Kane took office in 2013.
The information leaked to the newspaper dated to 2009 and involved a grand jury investigation that had since closed.
In her arguments to the Supreme Court, Kane contended that while Carpenter had the right to appoint a special prosecutor to investigate leaks from an active grand jury, he had no power to do that with a closed one.
But the high court found that leaks from a current or past grand juries were "equally affronts" to the need for secrecy in grand jury investigations.
In an interview, Ronald Castille, the former chief justice who approved Carpenter's decision to appoint a special prosecutor, said the decision was the right one.
In approving an investigation, Castille said, he had no idea that the inquiry might lead to Kane. He said he assumed that the leak would be traced to a low-ranking official in the Attorney General's Office.
Castille bristled at Davis' past complaints that Kane was the target of a Republican attack.
"If you can't win on the facts and the law, then you charge conspiracy," he said. "We might have run on the Republican ticket, but nobody is out to get her."