Text of PA HR 435 (2015)

PRINTER'S NO. 2084 THE GENERAL ASSEMBLY OF PENNSYLVANIA HOUSE RESOLUTION No. 435 Session of 2015 INTRODUCED BY METCALFE, TALLMAN, BARRAR, DUSH, McGINNIS, KAUFFMAN, TRUITT, BLOOM, GROVE, ROAE, KNOWLES, EVERETT, MOUL, WARD, SCHEMEL, GREINER, CUTLER, KRIEGER, PETRI, ELLIS, MARSHALL, TOOHIL, WATSON AND PHILLIPS-HILL, AUGUST 10, 2015 REFERRED TO COMMITTEE ON STATE GOVERNMENT, AUGUST 10, 2015 A RESOLUTION Impeaching Kathleen G. Kane, Attorney General of Pennsylvania, for misbehavior in office. BE IT RESOLVED, That Kathleen G. Kane, Attorney General of Pennsylvania, be impeached for misbehavior in office and that the following Articles of Impeachment be exhibited to the Senate: ARTICLE I On July 11, 2013, Attorney General Kane held a public press conference at the National Constitution Center in Philadelphia to announce that she would not defend a Federal lawsuit challenging a lawfully enacted Pennsylvania statute. Only two days earlier, a civil action captioned as Whitewood v. Corbett was filed in the United States District Court for the Middle District of Pennsylvania. The civil action challenged the constitutionality of Act 124 of 1996, which defined "marriage" in this Commonwealth as "a civil contract by which one man and one woman take each other for husband and wife" and which denied 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 recognition of same-sex marriages conducted in other states. Section 204(a)(3) of the Commonwealth Attorneys Act, states: "It shall be the duty of the Attorney General to uphold and defend the constitutionality of all statutes so as to prevent their suspension or abrogation in the absence of a controlling decision by a court of competent jurisdiction." This is a mandatory duty imposed on the Attorney General, who under section 4.1 of Article IV of the Constitution of Pennsylvania is required to "exercise such powers and perform such duties as may be imposed by law." No court of competent jurisdiction ruled that the definition of marriage contained in Act 124 of 1996 is unconstitutional before Attorney General Kane announced that she refused to defend the civil action challenging the statute. While the United States Supreme Court in United States v. Windsor had declared the Federal Defense of Marriage Act to be unconstitutional on the grounds that the Federal Government improperly intruded upon the states' "historic and essential authority to define the marital relation," the Windsor decision in no way adjudicated whether a state statute defining marriage as exclusively between a man and a woman violates due process or equal protection of law. Despite her mandatory duty to uphold and defend the constitutionality of a lawfully enacted statute, Attorney General Kane refused to defend Act 124 of 1996 on the basis of her personal opinion that the statute is "wholly unconstitutional." The Commonwealth Attorneys Act allows the Attorney General, "upon determining that it is more efficient or otherwise is in the best interest of the Commonwealth, to authorize" the Governor's General Counsel to defend any 20150HR0435PN2084 - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 particular litigation. Attorney General Kane never consulted with the Governor's General Counsel with regard to efficiency or the best interest of the Commonwealth before refusing to defend Act 124 of 1996 and there is no reason why the Governor's General Counsel is better equipped to defend the Whitewood litigation than the Office of Attorney General. Wherefore, Attorney General Kathleen G. Kane is guilty of an impeachable offense warranting removal from office and disqualification to hold any office of trust or profit under this Commonwealth. ARTICLE II During her public press conference in Philadelphia on July 11, 2013, Attorney General Kane declared her opinion that Act 124 of 1996 is "wholly unconstitutional." Attorney General Kane made this public statement two days after the filing of the lawsuit challenging Act 124 of 1996 and with full knowledge that several Commonwealth officials, including Attorney General Kane, were named as defendants in the lawsuit. Attorney General Kane's public declaration that the statute is unconstitutional contravenes not only her constitutional and statutory duty to uphold and defend lawfully enacted statutes, but also her ethical responsibilities as an attorney in this Commonwealth. Rule 3.6 of the Rules of Professional Conduct, applicable to all attorneys in this Commonwealth, bars any attorney associated with litigation from making an extrajudicial statement that the attorney reasonably knows or should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding. Before formally delivering the Whitewood litigation to the Governor's General Counsel, Attorney General Kane made a 20150HR0435PN2084 - 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 public statement that Act 124 of 1996 is "wholly unconstitutional" despite the ongoing litigation and the clear harm such statement would inflict on the Commonwealth officials named as defendants in the Whitewood litigation and on the defense of the presumptively constitutional statute. Wherefore, Attorney General Kathleen G. Kane is guilty of an impeachable offense warranting removal from office and disqualification to hold any office of trust or profit under this Commonwealth. Article III Office of Attorney General Case File No. 36-622 was a public corruption investigation, which was initiated in October 2010. The investigation focused on a number of public officials, including members of the General Assembly, for alleged violations of section 1634 of the Pennsylvania Election Code, provisions of the Public Official and Employee Ethics Act and 18 Pa.C.S. § 4701 (relating to bribery). Over the course of the investigation there were 113 tape recording sessions involving a confidential informant and public officials. The three-year investigation spanned the tenures of former Attorney General Tom Corbett, former Acting Attorney General Bill Ryan and former Attorney General Linda Kelly. Despite the extensive investigation and ample evidence that elected officials accepted cash and other gifts, on March 16, 2014, Attorney General Kathleen Kane publicly announced that she would not prosecute the offenders, all of whom are Democrats. The Attorney General cited the leniency of the confidential informant's cooperation agreement and the nature of the charges against the informant as primary reasons for discontinuing the 20150HR0435PN2084 - 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 lengthy investigation. In a March 23, 2014, Op-Ed in the Philadelphia Inquirer, Philadelphia District Attorney Seth Williams stated that prosecutors around the nation successfully bring cases based on testimony given by questionable individuals and questioned Attorney General Kane's decision to drop Case File No. 36-622 based on the informant's actions and the nature of the cooperation agreement, despite the hundreds of hours of tape recordings and other evidence that was gathered. Williams took over the case and has since filed charges against six public officials, including four who were members of the House of Representatives at the time charges were filed and one former member of the House of Representatives. Two members serving in the House of Representatives at the time charges were filed have pleaded guilty and resigned from office. The former member of the House of Representatives and a judicial official, a former Philadelphia Traffic Court Judge, pleaded guilty as well. Section 205 of the Commonwealth Attorneys Act gives the Attorney General the power to prosecute criminal charges against State officials or employees affecting the performance of their public duties or the maintenance of the public trust. Attorney General Kathleen Kane refused to perform her statutory responsibilities under section 205 of the Commonwealth Attorneys Act in relation to Office of Attorney General Case File No. 36-622. The offenders are members of the same political party as the Attorney General and her proffered reasons for dropping the prosecution have been criticized by seasoned prosecutors. Her refusal to perform her duties under these circumstances constitutes misbehavior in office. Wherefore, Attorney General Kathleen G. Kane is guilty of an 20150HR0435PN2084 - 5 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 impeachable offense warranting removal from office and disqualification to hold any office of trust or profit under this Commonwealth. ARTICLE IV The Thirty-Fifth Statewide Investigating Grand Jury for 2014 was summoned to investigate an alleged violation of grand jury secrecy involving Attorney General Kathleen Kane. The Grand Jury reviewed extensive evidence including testimony from numerous witnesses. The Grand Jury reported that the testimony of the Attorney General did not reflect "an honest account of the events," as described by the testimony of witnesses and supported by the evidence presented. The Grand Jury's presentment indicates that the Attorney General "mischaracterized events to cover-up activities undertaken at her direction to unlawfully release documents subject to grand jury secrecy." A 2009 memorandum, which contained detailed information regarding a previous grand jury investigation and which was subject to grand jury secrecy protections, was released to the media. This memorandum was an internal memorandum authored and received by staff of the Office of Attorney General. One of the individuals identified in the 2009 memorandum was J. Whyatt Mondesire, former president of the Philadelphia Chapter of the NAACP. Witnesses before the 2014 Grand Jury testified that the release of information in the memorandum was a violation of provisions of the Criminal History Records Information Act. The 2014 Grand Jury presentment establishes that the Attorney General met with staff to discuss the memorandum and a related transcript and retained these documents. Testimony given before the Grand Jury describes a chain of events that led to the 20150HR0435PN2084 - 6 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 release of these documents to Chris Brennan, staff writer for the Philadelphia Daily News. Subsequently, the Daily News published an article detailing the leaked 2009 Grand Jury information. Grand Jury testimony indicates that staff within the Office of Attorney General encouraged the Attorney General to investigate the source of the leak and that she declined to pursue the matter. The 2014 Grand Jury's presentment, which was unsealed by the Honorable William R. Carpenter, Supervising Judge, Court of Common Pleas of Montgomery County, on April 27, 2015, included a recommendation that Attorney General Kathleen Kane be charged with perjury under 18 Pa.C.S. § 4902. The presentment cited numerous instances of false testimony, made under oath, relating to the existence of the 2009 memorandum and the release of the memorandum and related transcript. Wherefore, Attorney General Kathleen G. Kane is guilty of an impeachable offense warranting removal from office and disqualification to hold any office of trust or profit under this Commonwealth. ARTICLE V The Thirty-Fifth Statewide Investigating Grand Jury for 2014 also recommended that Attorney General Kathleen Kane be charged with false swearing under 18 Pa.C.S. § 4903. The Grand Jury presentment cited a number of incidents in which the Attorney General made statements to the Grand Jury that contradicted testimony given by witnesses to the Grand Jury. The incidents include statements made by Kane that she did not know that the information regarding Mr. Mondesire was from a previous Grand Jury investigation and statements made by Kane that the release of information regarding Mr. Mondesire was not 20150HR0435PN2084 - 7 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 related to the controversy surrounding her decision not to pursue Case File No. 36-622. Wherefore, Attorney General Kathleen G. Kane is guilty of an impeachable offense warranting removal from office and disqualification to hold any office of trust or profit under this Commonwealth. ARTICLE VI The Thirty-Fifth Statewide Investigating Grand Jury for 2014 also recommended that Attorney General Kathleen Kane be charged with abuse of office/official oppression under 18 Pa.C.S. § 5301. The Grand Jury presentment indicates that Attorney General Kane committed official oppression when she disclosed the 2009 Grand Jury information. Because Kane knew that the information was subject to Grand Jury secrecy protections, her release of the information infringed upon Mr. Mondesire's exercise and enjoyment of his rights and privileges under the Constitution of the United States and the Constitution of Pennsylvania. Wherefore, Attorney General Kathleen G. Kane is guilty of an impeachable offense warranting removal from office and disqualification to hold any office of trust or profit under this Commonwealth. ARTICLE VII The Thirty-Fifth Statewide Investigating Grand Jury for 2014 also recommended that Attorney General Kathleen Kane be charged with obstructing the administration of law or other governmental function under 51 Pa.C.S. § 5101. The 2014 Grand Jury found that Attorney General Kathleen Kane's disclosure of the 2009 Grand Jury information was a "breach of her official duty and constituted an unlawful act 20150HR0435PN2084 - 8 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 that impaired or perverted the administration of law." Additionally, the 2014 Grand Jury found that by violating the Criminal History Records Information Act with the release of the 2009 Grand Jury information the Attorney General also committed obstruction of justice. Wherefore, Attorney General Kathleen G. Kane is guilty of an impeachable offense warranting removal from office and disqualification to hold any office of trust or profit under this Commonwealth. The House of Representatives hereby reserves to itself the right and ability to exhibit at any time hereafter further Articles of Impeachment against Attorney General Kathleen G. Kane, to reply to any answers that Attorney General Kathleen G. Kane may make to any Articles of Impeachment which are exhibited and to offer proof at trial in the Senate in support of each and every Article of Impeachment which shall be exhibited by them. 20150HR0435PN2084 - 9 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16