The Ludlow legislator was subpoenaed as part of a sweeping inquiry into the practices of Probation Commissioner John O’Brien.
BOSTON – A lawyer for state Rep. Thomas M. Petrolati on Tuesday asked the state’s highest court to block an order for the legislator to testify on his possible role in patronage in the state’s Probation Department, saying only court employees can be subpoenaed.
John P. Pucci, a Northampton lawyer representing Petrolati, told justices on the state Supreme Judicial Court that state law limits subpoena powers during a investigation by the high court of the general superintendence of lower courts and departments. Though he said the issue has never previously been litigated, Pucci said that for such investigations, the law restricts subpoenas to people within the judicial branch of government, not the legislative or executive.
“This is uncharted, undecided legal territory,” Pucci said during a hearing by the high court.
Paul F. Ware Jr., a Boston lawyer, subpoenaed Petrolati as part of a sweeping inquiry into the hiring, promotion and management practices of Probation Commissioner John J. O’Brien, a longtime ally of state legislators.
The state Supreme Judicial Court, saying that it is concerned probation employees may be hired for reasons other than merit, appointed Ware as special counsel in May and gave him subpoena powers.
A 24-year state legislator, Petrolati is a target partly because his wife, along with the husband of his chief of staff, a former legislative aide and political contributors, were all hired by O’Brien to work in the Probation Department. Over the years, the Probation Department has also hired many other people with ties to other legislators.
Petrolati, a Ludlow Democrat and the speaker pro tempore, is asking the court to quash the order for him to testify during the investigation of the Probation Department, citing a constitutional separation of powers.
Members of the court sounded skeptical about Pucci’s arguments.
“The courts have no more power than a private corporation to investigate wrongdoing by employees except that we can subpoena them?” Judge Ralph D. Gants asked.
Judge Robert J. Cordy said legislators and others were deposed as part of a past investigation of judges in the Boston Municipal Court. Cordy questioned Pucci’s interpretation of state law.
“I’m not sure why you say that limited the processes to people within the judicial branch,” Cordy said.
Kevin P. Martin, lawyer for the independent counsel, disagreed with Pucci, saying state law gives broad powers to the high court when investigating general administration of courts. If the court decides that Petrolati’s testimony is necessary and desired, then the court can uphold the subpoena issued to the legislator, he said.
“This is a case where you should defer to the independent counsel’s judgment,” Martin said.
Martin, a lawyer with Ware in the law firm Goodwin Procter, said he can’t imagine a situation where the lawyers decide they don’t need Petrolati’s testimony. Martin said much of what is at issue involves conversations between Petrolati and people in the probation department.
Pucci said Petrolati’s testimony also may not be needed. He said Ware is accumulating a vast amount of information, including testimony from at least 29 witnesses and records from the Probation Department. The high court needs to obtain this information from Ware to determine if Petrolati’s testimony would be necessary or desirable, he said.
In court papers, Pucci also said a constitutional crisis could unfold if the court upholds the subpoena, Petrolati fails to comply and is held in contempt.
Petrolati did not attend the hearing. Pucci said his client was focused on legislative business.
Members of the court took the case under advisement and did not say when they would rule.
After the hearing, Ware said he plans to issue a report by mid-October. Ware said he expects the report would have some loose ends and may need some follow up depending on whether the court decides it needs more information.
Ware said he is confident Petrolati will act appropriately if the court enforces the subpoena.
“We have great respect for Representative Petrolati and every elected legislator,” Ware said.