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.

Meet the Author

Bruce Mohl

Editor, CommonWealth

About Bruce Mohl

Bruce Mohl is the editor of CommonWealth magazine. Bruce came to CommonWealth from the Boston Globe, where he spent nearly 30 years in a wide variety of positions covering business and politics. He covered the Massachusetts State House and served as the Globe’s State House bureau chief in the late 1980s. He also reported for the Globe’s Spotlight Team, winning a Loeb award in 1992 for coverage of conflicts of interest in the state’s pension system. He served as the Globe’s political editor in 1994 and went on to cover consumer issues for the newspaper. At CommonWealth, Bruce helped launch the magazine’s website and has written about a wide range of issues with a special focus on politics, tax policy, energy, and gambling. Bruce is a graduate of Ohio Wesleyan University and the Fletcher School of Law and Diplomacy at Tufts University. He lives in Dorchester.

About Bruce Mohl

Bruce Mohl is the editor of CommonWealth magazine. Bruce came to CommonWealth from the Boston Globe, where he spent nearly 30 years in a wide variety of positions covering business and politics. He covered the Massachusetts State House and served as the Globe’s State House bureau chief in the late 1980s. He also reported for the Globe’s Spotlight Team, winning a Loeb award in 1992 for coverage of conflicts of interest in the state’s pension system. He served as the Globe’s political editor in 1994 and went on to cover consumer issues for the newspaper. At CommonWealth, Bruce helped launch the magazine’s website and has written about a wide range of issues with a special focus on politics, tax policy, energy, and gambling. Bruce is a graduate of Ohio Wesleyan University and the Fletcher School of Law and Diplomacy at Tufts University. He lives in Dorchester.

Meet the Author

Jack Sullivan

Senior Investigative Reporter, CommonWealth

About Jack Sullivan

Jack Sullivan is now retired. A veteran of the Boston newspaper scene for nearly three decades. Prior to joining CommonWealth, he was editorial page editor of The Patriot Ledger in Quincy, a part of the GateHouse Media chain. Prior to that he was news editor at another GateHouse paper, The Enterprise of Brockton, and also was city edition editor at the Ledger. Jack was an investigative and enterprise reporter and executive city editor at the Boston Herald and a reporter at The Boston Globe.

He has reported stories such as the federal investigation into the Teamsters, the workings of the Yawkey Trust and sale of the Red Sox, organized crime, the church sex abuse scandal and the September 11 terrorist attacks. He has covered the State House, state and local politics, K-16 education, courts, crime, and general assignment.

Jack received the New England Press Association award for investigative reporting for a series on unused properties owned by the Catholic Archdiocese of Boston, and shared the association's award for business for his reporting on the sale of the Boston Red Sox. As the Ledger editorial page editor, he won second place in 2007 for editorial writing from the Inland Press Association, the nation's oldest national journalism association of nearly 900 newspapers as members.

At CommonWealth, Jack and editor Bruce Mohl won first place for In-Depth Reporting from the Association of Capitol Reporters and Editors for a look at special education funding in Massachusetts. The same organization also awarded first place to a unique collaboration between WFXT-TV (FOX25) and CommonWealth for a series of stories on the Boston Redevelopment Authority and city employees getting affordable housing units, written by Jack and Bruce.

About Jack Sullivan

Jack Sullivan is now retired. A veteran of the Boston newspaper scene for nearly three decades. Prior to joining CommonWealth, he was editorial page editor of The Patriot Ledger in Quincy, a part of the GateHouse Media chain. Prior to that he was news editor at another GateHouse paper, The Enterprise of Brockton, and also was city edition editor at the Ledger. Jack was an investigative and enterprise reporter and executive city editor at the Boston Herald and a reporter at The Boston Globe.

He has reported stories such as the federal investigation into the Teamsters, the workings of the Yawkey Trust and sale of the Red Sox, organized crime, the church sex abuse scandal and the September 11 terrorist attacks. He has covered the State House, state and local politics, K-16 education, courts, crime, and general assignment.

Jack received the New England Press Association award for investigative reporting for a series on unused properties owned by the Catholic Archdiocese of Boston, and shared the association's award for business for his reporting on the sale of the Boston Red Sox. As the Ledger editorial page editor, he won second place in 2007 for editorial writing from the Inland Press Association, the nation's oldest national journalism association of nearly 900 newspapers as members.

At CommonWealth, Jack and editor Bruce Mohl won first place for In-Depth Reporting from the Association of Capitol Reporters and Editors for a look at special education funding in Massachusetts. The same organization also awarded first place to a unique collaboration between WFXT-TV (FOX25) and CommonWealth for a series of stories on the Boston Redevelopment Authority and city employees getting affordable housing units, written by Jack and Bruce.

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.