Disciplinary counsel: Kane's law license should remain suspended

Embattled Pennsylvania Attorney General Kathleen Kane walks out of the Montgomery County Courthouse in Norristown, Pa., surrounded by her security detail, on Monday, Aug. 24, 2015, after a preliminary hearing on charges against her including perjury, false swearing and obstruction of justice.
Embattled Pennsylvania Attorney General Kathleen Kane walks out of the Montgomery County Courthouse in Norristown, Pa., surrounded by her security detail, on Monday, Aug. 24, 2015, after a preliminary hearing on charges against her including perjury, false swearing and obstruction of justice.
Photo by TNS
Brad Bumsted
| Wednesday, Jan. 20, 2016, 4:00 p.m.

HARRISBURG — Attorney General Kathleen Kane waited four months to argue that a Supreme Court justice whose offensive emails she released was biased against her, suggesting her assertion “is lacking in sincerity,” the state's chief disciplinary counsel told the Supreme Court on Wednesday.

Kane should remain suspended from the practice of law, chief disciplinary counsel Paul Killion argued, because there is no evidence that suspended Justice Michael Eakin was biased when he voted. The disciplinary counsel investigates complaints against lawyers.

Kane, 49, a Scranton Democrat, was handed a temporary suspension effective in October. The court, in a 5-0 ruling, said the suspension from practicing law did not remove her as attorney general.

The Pennsylvania Senate is awaiting a report from a special committee on whether the full Senate should vote to remove Kane under a state constitutional provision last used more than 100 years ago.

Kane did not submit her argument of bias in a timely manner and she “knowingly waived her claim,” Killion and disciplinary counsel Harriet Brumberg stated in their filing. Kane should have made it in response to the original complaint in August, while the matter was pending before the Supreme Court, they argued.

The Court of Judicial Discipline suspended Eakin in December, pending a trial, because of the content of his emails.

That December decision was the event that triggered Kane's claim of bias, her attorney James Mundy said. Until then, there was “nothing there ... but the accusation,” Mundy said in a brief telephone interview. “Now it is real.”

On the eve of the final Senate hearing this month to address Kane's potential removal, she filed an emergency petition asking the Supreme Court to rescind her suspension. Mundy, a former disciplinary board chairman, argued that Eakin's bias could have tainted the court.

Three Democratic justices, elected in November, have shifted the court's majority from Republican to Democratic — though legal experts say the court seldom votes on a partisan basis.

New justices ran on the issue of integrity, said Bruce Antkowiak, a law professor at St. Vincent College in Latrobe. Respect for the institution outweighs partisanship, he said.

“The seriousness of the allegations and the consequences are too great,” he said.

Killion argued in his original filing that having Kane continue as attorney general hurts the administration of justice. He said Kane has a conflict of interest as the state's chief law enforcement officer and a criminal defendant.

Kane's top deputies testified under subpoena before a Senate committee that the office faces myriad problems because its leader cannot practice law. First Deputy Bruce Beemer cautioned that a judge could spring a violent criminal if a defense lawyer successfully argues the attorney general's office lacks authority to file charges. No such challenges have succeeded so far.

Yet most criminal and civil litigants will make the argument that their cases are invalid because Kane can't practice law, Duquesne University Law School professor Bruce Ledewitz has said.

Two other justices received emails deemed offensive by the Judicial Conduct Board. Justices Max Baer of Mt. Lebanon, on the court since 2003, and Kevin Dougherty of Philadelphia, seated this month, received 10 and 3 emails, respectively, between 2008 and 2010, the Philadelphia Inquirer reported.

Asked whether he believes Kane will attempt to disqualify Baer, who voted to suspend her, and perhaps even Dougherty, University of Pittsburgh Law School professor John Burkoff said, “All I can predict is that she will make every argument that she thinks will best make her case, whether it's a strong argument or not.

“And this is just such an argument, which is not to say that it's a strong one, given that there is no accusation that either justice sent or forwarded — or even looked at — that handful of emails. They may well have immediately deleted them, as most of us do when we receive unwanted spam.”

Mundy suggested it is unlikely that Kane would pursue it, because Baer and Dougherty only received emails and did not forward any, as Eakin did.

Brad Bumsted is the Tribune-Review's state Capitol reporter. Reach him at 717-787-1405 or bbumsted@tribweb.com.

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