Kathleen Kane

HARRISBURG — Attorney General Kathleen Kane on Tuesday lost a challenge in the state’s highest court over an investigation that recommended she be charged criminally in the leaks of secret material.

The Pennsylvania Supreme Court ruled that a county judge outside Philadelphia had the authority to appoint a special prosecutor to look into grand jury leaks tied to the state attorney general’s office.

Kane had argued that special prosecutor Thomas Carluccio’s appointment was unlawful and sought to repress the grand jury report that suggested charges against her.

Carluccio oversaw a grand jury that recommended Kane be charged with perjury, obstruction, false swearing and official oppression. The decision on whether to charge her rests with Montgomery County District Attorney Risa Ferman. She has not commented on the matter and did not return messages Tuesday from The Associated Press.

“Although we recognize that there are legitimate concerns arising out of a judicial appointment of a special prosecutor, we follow the approach of the United States Supreme Court and the many other jurisdictions which have found such appointments proper as an essential means to vindicate the court’s own authority,” Chief Justice Thomas Saylor wrote in the main opinion.

None of the five judges said they would grant Kane what she sought, but only one other signed Saylor’s opinion. The other three were all critical of the process, including Justice Corry Stevens, who urged the Legislature to pass new rules for special prosecutors.

“While I agree a supervising judge has the authority to appoint a special prosecutor, here the scope of the powers of the special prosecutor took on the role of a de facto district attorney, which in my opinion is not permissible,” Stevens wrote.

Justice Debra Todd said letting a judge appoint a prosecutor runs afoul of the separation of powers among branches of government. “This approach upends the historic bipartite functioning of grand jury proceedings by vesting the traditionally separate roles of advocate prosecutor and neutral supervising judge in one branch of government,” Todd wrote in the lone dissent.

Todd said she believes Carluccio was given too much power, but she would not have granted what Kane’s “quo warranto” petition sought because of limits on what that type of action can accomplish “to unwind the acts previously taken by the special prosecutor.”

Justice Max Baer said he agreed with the majority but only because Carluccio did not file charges. Carluccio instead passed along the grand jury presentment to Ferman to decide if the case should be prosecuted. Baer and Todd, like Kane, are Democrats; the other three justices are Republicans.