Rep. Petrolati, Ware in probation standoff

House leader and independent counsel battling over legislative subpoena

The court-ordered probe into patronage practices at the state’s Probation Department has spawned a tense legal standoff over a subpoena issued to a top House leader and raised fears of a “constitutional crisis” and legislative retaliation against the judiciary.

Rep. Thomas Petrolati, a Ludlow lawmaker and the third-ranking leader in the House of Representatives, is seeking to quash a subpoena issued to him by Paul F. Ware, the independent counsel heading the probation probe.

In a motion filed with the Supreme Judicial Court, which appointed Ware and ordered the probe, Petrolati claims Ware has no legal authority to investigate or subpoena officials outside the judicial branch of government, where probation is located. Petrolati says any move to enforce the subpoena would be a violation of the doctrine of separation of powers and could trigger a constitutional crisis if he 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?” Petrolati asked in his motion. “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 powers doctrine if this subpoena is enforced.”

Ware, in a response filed with the SJC today, said Petrolati’s “radical” interpretation of the law is incorrect. He contended Petrolati is manufacturing the constitutional crisis to avoid testifying in the probe and took umbrage at the tone of the lawmaker’s motion, saying it “strongly implied that the Legislature may retaliate against the judiciary should legislators be called to provide evidence in this investigation.”

Later in his motion, Ware expressed hope that retaliation would not occur. “Hopefully, it is reading too much into Petrolati’s motion, and its reference to ‘political risks,’ to the court, to think he is suggesting that some legislators will, through legislative processes, attempt to retaliate against the judiciary for individual legislators’ having to respond to subpoenas.”

Ware says his investigation of hiring practices at probation would be undermined if he is unable to question officials outside the judicial branch of government. (He noted he has already questioned 29 witnesses under oath, including many who work outside of the judicial branch, and conducted background interviews with dozens of others, including judges, one state lawmaker, and other nonemployees of the judiciary.)

The Goodwin Proctor attorney said he is attempting to question Petrolati because the lawmaker was described in a May story in The Boston Globe as “the king of patronage” in courthouses west of Worcester. Petrolati’s wife and a former aide work at probation, as do, according to The Globe, more than 90 financial backers of the lawmaker.

Ware said the purpose of the Petrolati subpoena is to acquire information he may possess about wrongdoing by probation employees. “Any purported misconduct by Petrolati is tangential to that purpose,” he said.

Ware says if Petrolati or any potential witness is fearful of incriminating themselves, they can always invoke their rights under the U.S. Constitution’s Fifth Amendment or the state constitution’s Article 12 to refuse to testify.

Petrolati will get a chance next week to respond to Ware’s arguments and then the SJC may hear oral arguments before deciding on the legality of the subpoena. Ware was appointed in May after The Globe’s report resulted in Probation Commissioner John O’Brien being placed on paid leave.

The court’s ruling on the Petrolati subpoena will come as the three branches of state government struggle for control of probation and its 2,000 jobs. Gov. Deval Patrick is seeking to move probation into the executive branch of government, while the judiciary wants to retain its control but with stronger oversight. The Legislature, which passed laws giving O’Brien an unusual level of independence within the judiciary, has appointed a special panel to examine the best location for the agency.