In Unprecedented Move, Pennsylvania Suspends AG's Law License

by | September 22, 2015

By Angela Couloumbis and Craig R. McCoy

In an unprecedented move, the Pennsylvania Supreme Court on Monday suspended the law license of Attorney General Kathleen G. Kane, a step that could increase the chances that the Legislature will try to remove her from office.

The high court's decision was unanimous, endorsed by the court's three Republicans and two Democrats.

Lawyers for a state disciplinary board that oversees lawyers sought the suspension after Kane was charged last month with perjury, obstruction and other offenses stemming from allegations that she illegally leaked grand jury material and then lied about it under oath.

The board wanted Kane out of power. Its lawyers suggested that stripping Kane of her law license would disqualify her from holding office.

The Supreme Court, however, said its order Monday "should not be construed as removing (Kane) from elected office and is limited to the temporary suspension of her license."

Her suspension means she is barred from making legal decisions _ or signing legal documents _ for the office. She can, however, continue carrying out administrative duties, making personnel decisions, and deciding how money is spent.

The order will stay in place until a pending criminal trial decides her fate or Kane reverses the action in an appeals hearing.

Still, political leaders in Harrisburg said the high court's decision could bolster arguments for the GOP-controlled state Senate to invoke a never-used constitutional provision and force her from office.

Kane, the state's first Democrat and woman elected to the position, said she was disappointed in the ruling but pointed positively to the court's decision not to remove her.

In a statement, Kane said that remaining in office will allow her to continue rooting out what she called "the culture of misogyny and racially/religiously offensive behavior that has permeated law enforcement and members of the judiciary in this commonwealth for years."

Kane has previously blamed the criminal investigation and attacks against her on her decision to expose the exchange of pornography on government time and accounts by top prosecutors and other employees who worked for her Republican predecessors. Kane last year named eight state prosecutors, officials or investigators who sent or received such emails, and publicly released some of their messages.

Hours after the Supreme Court order on Monday _ and in what seemed a reversal of a position she had maintained only last week _ Kane announced she would use her discretionary power to make public more of the pornographic messages. She also said that she had just discovered new emails between law enforcement officials and judges, and that all emails "will be fully released."

Her office would not say when.

No decision has been made on how Kane might legally respond to the high court's decision, according to her attorneys in the disciplinary matter. The lawyers, James F. Mundy and James J. Powell III, said that there was "another side to this story" and that they hoped Kane gets an opportunity to tell it. "We are confident that once that happens, Attorney General Kane will be exonerated," they said.

But the state constitution requires that the attorney general be a member of the bar, raising questions about Kane's qualifications to stay in office.

In stopping short of ousting her, the Supreme Court apparently agreed with legal experts who have said that Kane would remain a member of the bar even if she was suspended. The experts said she would have to be disbarred to run afoul of the constitutional requirement.

The attorney general's lawyers have argued that suspending her license would violate her due process rights and effectively circumvent the constitutional provision for removing a public official from office. Kane was elected in 2012.

Legal experts disagree about whether the high court's ruling closed the door on removing Kane from office.

In interviews, some said they believe the justices could consider a new motion _ perhaps filed by one of Kane's critics among district attorneys _ to force her ouster. Others said they thought the justices had concluded either that they had no legal authority to remove her or that they were extremely reluctant to do so.

Still, there was consensus that the suspension was another major setback for the embattled Kane.

John M. Burkoff, a professor at the University of Pittsburgh School of Law, said: "The dramatic psychological, emotional and political impact of this order on the office and the attorney general herself has to be enormous.

"This is an incredible and almost unthinkable development," he added. "What little credibility Attorney General Kane retained prior to today has just been subjected to a crippling body blow."

Bruce Ledewitz, a law professor at Duquesne University, said the Supreme Court had handed a powerful weapon to the state Senate to invoke a provision in the state constitution to remove Kane from office.

Under the constitution, officials other than the governor, lieutenant governor and legislators can be removed from office by the governor "for reasonable cause, after due notice and full hearing, on the address of two-thirds of the Senate."

The removal provision in the constitution, in its current form, would permit speedier action than more conventional impeachment proceedings, which would require action by both the House and the Senate.

Ledewitz said that with Kane's suspension, legislators could remove her simply on grounds that she had lost her law license, avoiding making any judgment about her guilt or innocence.

"The court's action is a setup for the Senate to act," Ledewitz said. "I think that was intended by the court."

Ledewitz said that the court legally erred in taking action against Kane ahead of any trial, but that he nonetheless found the outcome puzzling.

"What's the point of suspending her if she remains attorney general?" he asked.

Senate Republicans have been researching their authority and the steps to remove the attorney general, according to Drew Crompton, the Senate Republicans' top lawyer.

Though he called Monday's developments "significant," Crompton said that any action to remove her is "going to need a lot more conversation."

Pennsylvania Gov. Tom Wolf, a Democrat, has previously called for Kane to quit. A spokesman for the governor on Monday called the suspension "further proof that Attorney General Kane can no longer perform the duties of her office, and as the governor has said, she should step down."

The spokesman added: "In the event she does not, it is premature to comment on other actions."

Kane, 49, who is paid $158,764 yearly, is awaiting trial in Montgomery County on charges that she illegally leaked confidential documents to a Philadelphia Daily News reporter to plant a story to embarrass a critic.

As a grand jury investigated Kane's conduct, prosecutors say, she ordered aides to spy on the emails of people involved in the probe, including witnesses and the special prosecutor who was handling the case.

Kane has pleaded not guilty and has repeatedly vowed to remain in office.

(c)2015 The Philadelphia Inquirer