Post by melody on May 7, 2014 17:10:10 GMT -5
House State Government Committee
5/6/14, 9:00 a.m., Room G-50 Irvis Office Building
By Jeff Cox, PLS
The committee conducted a public hearing on a resolution, as would be amended, providing for the impeachment of Attorney General Kathleen Kane.
HR 578 (Withdrawn) - (PN 2767) Resolution commending Attorney General Kathleen Kane, the first woman in this Commonwealth to be elected to that office, and praising her professionalism and focus in the performance of her duties.
A06591 by Metcalfe, removes the current language in the resolution and inserts new language providing for the impeachment of Attorney General Kathleen Kane for misbehavior in office. The amendment was distributed in committee.
Chairman Metcalfe informed the committee that he previously asked the State Ethics Commission to look into the actions of the Attorney General in the promotion of her sister as Chief Deputy Attorney General for the Child Predator Section. He said that he would be providing members with a copy of a letter received from the Commission earlier in the year. According to Chairman Metcalfe, the Commission determined there was a lack of sufficient evidence to establish one of the required elements of a violation and the Commission has terminated its inquiry into the matter. He added that his letter went onto say that “the selection process, coupled with a lack of documentation establishing the criteria used to fill the vacancy concerning the Chief Deputy Attorney General of the Child Predator Section, created a perception that the promotion of your sister was not free of your influence.”
Chairman Cohen pointed out he delivered a letter to Chairman Metcalfe yesterday asking that he consider cancelling the committee hearing “not just in the best interest of the House of Representatives as an institution, but also in the best interest of democracy in Pennsylvania.” He argued, “Today’s hearing is a department from that spirit and that precedent. It is inappropriate. It is improper.” He observed, “Impeaching for political reasons is never a good idea. Using this committee and this legislature to settle political grievances is even worse.” After providing an overview of the impeachment process, Chairman Cohen said, “This entire process is being bypassed by a proposed amendment to a House resolution originally commending the attorney general. We have no investigation; we have no report; we have no basis to proceed with this hearing.” He concluded, “Surely, we have better things to do than waste time and tax dollars on a political witch hunt.”
Chairman Cohen made a motion, seconded by Rep. O’Brien to adjourn the hearing. The motion failed by a vote of 11- 10. Voting “yes” on the motion to adjourn: Chairman Cohen and Representatives Daley, Flynn, Harris, McNeill, Miller, O’Brien, Schlossberg, Sims and Vitali. Voting “no” on the motion: Chairman Metcalfe and Representatives Barrar, Dunbar, Evankovich, Keller, Krieger, Maloney, McGinnis, Roae, Saccone and Truitt.
Rep. O’Brien attempted to raise a point of order but was ruled out of order by Chairman Metcalfe. The two argued as to the appropriateness of the order and as Rep. O’Brien continued, Chairman Metcalfe asked security to remove him from the hearing. Rep. Harris asserted that the Chairman does not have the authority to remove a member from a hearing. Rep. O’Brien again attempted to make a motion to adjourn the hearing. Chairman Metcalfe refused to recognize him and once again asked security to remove him. At that point, the Democratic members left the hearing.
Chairman Metcalfe apologized for the actions of the minority members, pointing out that he and Chairman Cohen disagree on the question of whether the attorney general has violated the law or the Constitution. Chairman Metcalfe asserted, “My dispute with the Attorney General is not policy. It’s the law.” He went onto say the actions by the committee Democrats were “anticipated” and pointed out that the co-sponsors of the resolution attempted to remove their names in order to try to keep the hearing from taking place.
Michael Bekesha, an attorney for Judicial Watch, provided a brief overview of the Attorney General’s duties, what they mean, and why they are in place. He criticized the Attorney General’s decision not to defend Pennsylvania’s marriage law because she believes it to be “unconstitutional.” Citing section 204 (a) (3) of the Commonwealth Attorneys Act, Bekesha argued that “the Attorney General cannot decide which laws she wants to uphold and defend.” He also cited a 1973 Commonwealth Court Case where the Court stated that if the Attorney General had the power to suspend a statute by declaring it unconstitutional the Attorney General “would seriously evade and encroach upon this area of judicial responsibility and possess an effective veto over legislation greater than that enjoyed by the Governor.”
Bekesha told the committee members, “Kathleen Kane plays attorney general on TV. I say that because when she decided that the law was unconstitutional, she held a press conference” instead of initiating an action in the courts and obtaining judicial determination of the issue or submitting a revision of the statute to the General Assembly. He said, “Surely, the Attorney General knew she had these options.” Bekesha went onto criticize the Attorney General over the appointment of her sister as a Deputy Attorney General, her “attack on the people’s Second Amendment rights,” and her decision not to prosecute certain elected officials “for allegedly accepting cash and other gifts in exchange for voting ‘no’ on the Pennsylvania voter ID bill.”
Rep. Saccone asked if there is prosecutorial discretion for an attorney general or if the attorney general can decide a law is not right and then not to enforce it. Bekesha said that there is a mechanism in Pennsylvania law for an attorney general if she believes a statute is unconstitutional to do something about it but Kane did not do it properly. According to Bekesha, Kane has not initiated any court action seeking a ruling on the constitutionality of the statute and she has not made any recommendations to the legislature to change the law.
Rep. Roae commented that people look to someone in government to follow the law. He wondered what would happen if the Department of State decided to allow 16 year olds to register to vote or if a county sheriff decided that people should not be subject to background checks and issues permits to carry. Rep. Roae pondered what society would be like if people in government could pick or choose what laws they enforce. Bekesha responded, “It would be chaos. It would be tyranny.” He cautioned that the precedent has been set for government officials to decide what laws they want to enforce and which ones they don’t. Bekesha asserted, “Attorney General Kane as the chief law enforcement officer in Pennsylvania has made it clear she believes Pennsylvania public officials can choose what laws to enforce.” He predicted more Pennsylvania public officials will do that.
Rep. Knowles asked what happens if district attorneys or police officers decide not to enforce a law they don’t like. He expressed concern that “we are going down a slippery slope.” Rep. Knowles added that it is “unconscionable” that the Attorney General refuses to enforce “things she doesn’t like.” Bekesha responded that there is a right way to challenge a law but the Attorney General did not do that. He added that best way to prevent the Attorney General from deciding what law she will enforce is to impeach her.
Rep. Truitt asked if any similar impeachment actions have taken place in other states. Bekesha said he did not know because the impeachment process is different in each state. He added that the easiest way is for the citizens of a state vote the person out of office. Bekesha explained that Judicial Watch litigates across the country in support of the rule of law and looks at bringing taxpayer standing challenges to various actions. He commented, “I think it is great this committee is taking the first step, holding a hearing and finding out what can be done next.”
Chairman Metcalfe noted that one of the points of Chairman Cohen was that “you shouldn’t beat someone over policy differences.” He commented, “I do think that we have a responsibility to make sure when somebody is in office that they are abiding by the law and they are complying with law as it spells out their duties of their office.” Chairman Metcalfe explained that his amendment spells out that the Attorney General would be impeached for misbehavior in office and she refused to comply with the Commonwealth Attorneys Law. Bekesha responded, “I am not here today to talk about disagreements in policy. I am here to talk about what the Attorney General’s obligations, duties and requirements are under the law.” He continued, “She has the duty and obligation to uphold and defend all statutes and all laws of the Commonwealth until the courts deem those statutes unconstitutional.” Bekesha added, “In this case, she decided to be the judiciary. She decided to be the court and say I believe this law is unconstitutional.” He said, “There is no policy dispute. This is about the rule of law and what the Attorney General is required to do as Attorney General.”
Chairman Metcalfe pointed out that the United States Attorney General Holder “has acted in a similar manner.” He expressed concern with the danger of ignoring the law to advance an agenda. Bekesha responded that Judicial Watch has seen it with Attorney General Holder and now other attorneys general across the country are doing the same thing. He pointed to Pennsylvania, California, Virginia and Ohio. Bekesha warned, “It is a trend around the country and it needs to be stopped.”
Joshua Prince, Chief Counsel, Firearms Industry Consulting Group, testified on the issue of Kane’s actions regarding firearms reciprocity agreements with other states. He argued that the attorney general has the statutory authority to enter into such agreement but “only the legislature has the power to and authority to modify, amend, rescind, revoke or otherwise change or invalidate an existing reciprocity agreement.” Prince told lawmakers, “While seemingly in direct violation of the statutory delegation and an attempt to usurp the legislature’s power, Attorney General Kane’s actions raise serious constitutional questions as Pennsylvania provided not opportunity to be heard prior to these changes, no compensation to the aggrieved and is now discriminating against its own citizens, as a Florida, Virginia or Arizona resident may lawfully carry a concealed firearm based upon his/her respective Florida, Virginia or Arizona license or permit in Pennsylvania, but a Pennsylvania resident may not carry a concealed firearm in Pennsylvania based upon the same Florida, Virginia or Arizona license or permit.” He argued, “It is clear that Attorney General Kane has unlawfully amended our reciprocity agreements, violated the constitutional rights of Pennsylvania residents and shirked her duties under the Pennsylvania Constitution and the Commonwealth Attorneys Act.”
Rep. Truitt asked if the power to modify, amend, rescind, or revoke only belongs to the legislature. Prince responded, “Yes.” Rep. Truitt wondered how the legislature would amend an agreement and if it would require a statute. Prince said he believes the change would be done through a resolution and not a statute. He added that the legislature enacted the statute with intention of restricting the delegation of power to the Attorney General and serve as a check. Chairman Metcalfe added that the statute was enacted in order to expand reciprocity between the states.
Rep. Maloney asked about the impact of Kane’s action regarding reciprocity agreements on Pennsylvania residents travelling state to state. Prince pointed out there has been no changes to date with the reciprocity agreements with Utah and New Mexico but the changes have been with the agreements with Florida, Virginia, and Arizona. He explained that the issue that arises is many states require additional background checks and training that Pennsylvania does not require. According to Prince, Utah requires a sufficient amount of training prior to the issuance of any Utah license to carry. He said that the reason the agreements become so important is because it depends on the state of issuance as to the number of agreements that state has with other states so many individuals will seek out Florida, Utah, Arizona or Virginia licenses to carry permits so they have reciprocal protections.
Chairman Metcalfe asked if the reciprocity issue should be added to his impeachment amendment. Prince responded, “Absolutely.”
James Clymer testified, “Once the Attorney General starts deciding which statutes she will defend and which she will not based on her personal political beliefs, the stability and security of legislative law in this Commonwealth are severely threatened.” According to Clymer, “This selective service view of her position abandons her responsibility, defeats the public trust, and removes any certainty about how she will act or whether she will act in the future.” He argued, “The message should be clear to Attorney General Kane: ‘You had a job to do, a job you were hired to do with duties prescribed under the constitution you took an oath to uphold. You chose to defy your mandate and you need to find new work.” He said the duty to defend the constitution “is essential to any democracy because it makes the executive a servant rather master of the law.”
Rep. Maloney commented, “We see this on a local basis also and it would appear to me for the due process of the people of Pennsylvania that we would be able to challenge our way up the ladder to those who would then say yes what took place at the local level was wrong and we are going to correct it.” He added that what he is hearing today is “the top of the ladder” is taking a position that they do not have which leaves in jeopardy “every other rung down the ladder all the way to the local level where we see a problem on a smaller scale.” Rep. Maloney described the Attorney General as an “interpreter” of the law. Clymer responded, “I have a fundamental disagreement with that.” He said, “I think the Attorney General, like any attorney, is hired to do the job and I would distinguish between the executive Office of Governor from the Attorney General.” Clymer argued that the Attorney General is “hired to represent the client” and “it not her prerogative to arbitrarily decide what the law should be or what it should mean or enforce it or not enforce it based on that.”
Rep. Truitt expressed concern with the attorney general deciding what laws to uphold and with the potential precedent it could set. He also expressed concern it could restrict future attorneys general. Clymer responded that he does not believe it sets a legal precedent but could set a “mindset precedent.” He asserted it undermines the rule of law and cautioned that when the law is subject to the whims of the enforcer you lose the safety of knowing the law. Rep. Truitt asked whether this could be waited out until the next election or if there could be a lasting effect which means there is a need for more immediate action. Clymer responded that there is a need for immediacy because it is becoming a trend at the federal and state levels and it is creating havoc. He said that that the General Assembly is designed to be the body that is most responsive to the people and, especially, the House. Clymer observed, “If the House fails to assert its duty then it becomes a dereliction of duty by the members.”
Rep. Keller asked if the people “get inadequate legal representation” when the Attorney General did not defend the marriage law. Clymer responded, “Absolutely.”
Rep. Saccone pointed out there are those that argue that the Attorney General can only enforce so many laws and has to prioritize and redirect her resources. Clymer conceded that could be an argument but it is not the circumstance today. He explained that there is some prosecutorial discretion but when a major, duly enacted law is challenged the Attorney General must defend it. Clymer added that apart from a direct conflict of interest the Attorney General must defend the law.
Rep. Krieger asked about the scenario where two Republican candidates are running for Attorney General and one candidate says he does not like a particular law and will not enforce it. Clymer responded that he believes there is a distinction between prosecutorial discretion and defending a law. He argued the Attorney General has a duty to defend a law; the decision should not be based on the Attorney General’s personal opinion of a law.
Chairman Metcalfe pointed out there is a clear charge in the Commonwealth Attorneys Act and the Attorney General has no discretion in defending a law.
Christian Adams, Policy Board Member, American Civil Rights Union, noted he is a Pennsylvania native and an election lawyer. He spoke about the impact “the comments by and policies of Attorney General Kathleen Kane” have had on election law. According to Adams, “Kane’s brazen unwillingness to pursue behavior by some elected officials who reportedly took bribes in exchange for votes against voter identification legislation sends a signal that criminal behavior touching on elections will be tolerated.” He warned, “Her unwillingness to enforce the law was not only corrosive to the integrity of Pennsylvania elections but also sends a message nationwide to would-be election criminals.” Adams stated his support for Article III of Representative Metcalfe’s amendment to House Resolution 578. Adams observed, “What is even worse than General Kane dropping the matter is her justification as to why she did so.” He criticized the attorney general for impugning “the competence and credibility of the investigation conducted by her predecessor as well as the line investigators on the case” and for invoking “the specter of race.” Adams said, “It is the duty of law enforcement officials throughout the Commonwealth to be totally intolerant of any criminal conduct touching our elections.” He added, “It is the obligation of the Attorney General to ignore the race, religion or partisan affiliation of the wrongdoers in deciding whether to enforce the law.” He called on the Attorney General to release to the General Assembly all of the hidden camera videos of the individuals accepting cash and gifts. Adams declared, “Let the people of Pennsylvania judge for themselves whether or not General Kane is faithfully executing the laws of the Commonwealth. Let the people be the judge of whether the evidence is sufficient.”
Rep. Maloney asked about the impact of the decision on due process. Adams pointed out the Philadelphia District Attorney said he would do it and the Attorney General shipped the file off to his office. He explained, “That is not how it is supposed to work. You have a statewide corruption statute that the attorney general is charged with enforcing and it is not to devolve down to district attorneys who are closer to those legislators.”
Chairman Metcalfe reviewed some of the actions taken by Attorney Kane since taking office as outlined in his amendment along with the altering of reciprocity agreements that was brought up today and the hiring of relatives. He commented that her actions “speak to a pattern of behavior” and remarked it doesn’t appear it will be ending “anytime soon.” Adams responded the attorney general would claim everything she did is perfectly appropriate. He said, “That is the gap we have in this country where people behave one way that outrages the other side they will defend that behavior and see absolutely nothing wrong with it.” Adams added, “That is the challenge this committee has. It is the people who engage in this kind of behavior, unfortunately, do not see anything wrong with it.” Chairman Metcalfe said he was troubled by the Attorney General setting up a follow-up meeting with the Philadelphia Inquirer and bringing along a personal attorney which he described as an attempt to bully the newspaper. Adams could not recall another instance where an elected official in the last five years threatened to sue a media outlet for exposing an investigative piece about the behavior of that elected official.
Rep. Knowles commented, “This is a very serious problem.” He expressed his wish that the committee Democrats would have remained to ask questions. Regarding Kane, Rep. Knowles asserted, “She is a servant of law not the master of law.” He concluded, “We as a legislature better deliver a message to the Attorney General, the district attorneys and law enforcement that they can’t choose what laws to enforce.
Rep. Gabler also expressed his appreciation for the hearing. He said, “The core of our job is to provide oversight.”
Chairman Metcalfe described the Democrats’ action as “a dereliction of duty.” He added that they attempted to override the process behind the scenes. He said, “We could have an exchange of idea and they could have defended the Attorney General.” Chairman Metcalfe concluded, “The legislative body needs to hold the Attorney General accountable.”
5/6/14, 9:00 a.m., Room G-50 Irvis Office Building
By Jeff Cox, PLS
The committee conducted a public hearing on a resolution, as would be amended, providing for the impeachment of Attorney General Kathleen Kane.
HR 578 (Withdrawn) - (PN 2767) Resolution commending Attorney General Kathleen Kane, the first woman in this Commonwealth to be elected to that office, and praising her professionalism and focus in the performance of her duties.
A06591 by Metcalfe, removes the current language in the resolution and inserts new language providing for the impeachment of Attorney General Kathleen Kane for misbehavior in office. The amendment was distributed in committee.
Chairman Metcalfe informed the committee that he previously asked the State Ethics Commission to look into the actions of the Attorney General in the promotion of her sister as Chief Deputy Attorney General for the Child Predator Section. He said that he would be providing members with a copy of a letter received from the Commission earlier in the year. According to Chairman Metcalfe, the Commission determined there was a lack of sufficient evidence to establish one of the required elements of a violation and the Commission has terminated its inquiry into the matter. He added that his letter went onto say that “the selection process, coupled with a lack of documentation establishing the criteria used to fill the vacancy concerning the Chief Deputy Attorney General of the Child Predator Section, created a perception that the promotion of your sister was not free of your influence.”
Chairman Cohen pointed out he delivered a letter to Chairman Metcalfe yesterday asking that he consider cancelling the committee hearing “not just in the best interest of the House of Representatives as an institution, but also in the best interest of democracy in Pennsylvania.” He argued, “Today’s hearing is a department from that spirit and that precedent. It is inappropriate. It is improper.” He observed, “Impeaching for political reasons is never a good idea. Using this committee and this legislature to settle political grievances is even worse.” After providing an overview of the impeachment process, Chairman Cohen said, “This entire process is being bypassed by a proposed amendment to a House resolution originally commending the attorney general. We have no investigation; we have no report; we have no basis to proceed with this hearing.” He concluded, “Surely, we have better things to do than waste time and tax dollars on a political witch hunt.”
Chairman Cohen made a motion, seconded by Rep. O’Brien to adjourn the hearing. The motion failed by a vote of 11- 10. Voting “yes” on the motion to adjourn: Chairman Cohen and Representatives Daley, Flynn, Harris, McNeill, Miller, O’Brien, Schlossberg, Sims and Vitali. Voting “no” on the motion: Chairman Metcalfe and Representatives Barrar, Dunbar, Evankovich, Keller, Krieger, Maloney, McGinnis, Roae, Saccone and Truitt.
Rep. O’Brien attempted to raise a point of order but was ruled out of order by Chairman Metcalfe. The two argued as to the appropriateness of the order and as Rep. O’Brien continued, Chairman Metcalfe asked security to remove him from the hearing. Rep. Harris asserted that the Chairman does not have the authority to remove a member from a hearing. Rep. O’Brien again attempted to make a motion to adjourn the hearing. Chairman Metcalfe refused to recognize him and once again asked security to remove him. At that point, the Democratic members left the hearing.
Chairman Metcalfe apologized for the actions of the minority members, pointing out that he and Chairman Cohen disagree on the question of whether the attorney general has violated the law or the Constitution. Chairman Metcalfe asserted, “My dispute with the Attorney General is not policy. It’s the law.” He went onto say the actions by the committee Democrats were “anticipated” and pointed out that the co-sponsors of the resolution attempted to remove their names in order to try to keep the hearing from taking place.
Michael Bekesha, an attorney for Judicial Watch, provided a brief overview of the Attorney General’s duties, what they mean, and why they are in place. He criticized the Attorney General’s decision not to defend Pennsylvania’s marriage law because she believes it to be “unconstitutional.” Citing section 204 (a) (3) of the Commonwealth Attorneys Act, Bekesha argued that “the Attorney General cannot decide which laws she wants to uphold and defend.” He also cited a 1973 Commonwealth Court Case where the Court stated that if the Attorney General had the power to suspend a statute by declaring it unconstitutional the Attorney General “would seriously evade and encroach upon this area of judicial responsibility and possess an effective veto over legislation greater than that enjoyed by the Governor.”
Bekesha told the committee members, “Kathleen Kane plays attorney general on TV. I say that because when she decided that the law was unconstitutional, she held a press conference” instead of initiating an action in the courts and obtaining judicial determination of the issue or submitting a revision of the statute to the General Assembly. He said, “Surely, the Attorney General knew she had these options.” Bekesha went onto criticize the Attorney General over the appointment of her sister as a Deputy Attorney General, her “attack on the people’s Second Amendment rights,” and her decision not to prosecute certain elected officials “for allegedly accepting cash and other gifts in exchange for voting ‘no’ on the Pennsylvania voter ID bill.”
Rep. Saccone asked if there is prosecutorial discretion for an attorney general or if the attorney general can decide a law is not right and then not to enforce it. Bekesha said that there is a mechanism in Pennsylvania law for an attorney general if she believes a statute is unconstitutional to do something about it but Kane did not do it properly. According to Bekesha, Kane has not initiated any court action seeking a ruling on the constitutionality of the statute and she has not made any recommendations to the legislature to change the law.
Rep. Roae commented that people look to someone in government to follow the law. He wondered what would happen if the Department of State decided to allow 16 year olds to register to vote or if a county sheriff decided that people should not be subject to background checks and issues permits to carry. Rep. Roae pondered what society would be like if people in government could pick or choose what laws they enforce. Bekesha responded, “It would be chaos. It would be tyranny.” He cautioned that the precedent has been set for government officials to decide what laws they want to enforce and which ones they don’t. Bekesha asserted, “Attorney General Kane as the chief law enforcement officer in Pennsylvania has made it clear she believes Pennsylvania public officials can choose what laws to enforce.” He predicted more Pennsylvania public officials will do that.
Rep. Knowles asked what happens if district attorneys or police officers decide not to enforce a law they don’t like. He expressed concern that “we are going down a slippery slope.” Rep. Knowles added that it is “unconscionable” that the Attorney General refuses to enforce “things she doesn’t like.” Bekesha responded that there is a right way to challenge a law but the Attorney General did not do that. He added that best way to prevent the Attorney General from deciding what law she will enforce is to impeach her.
Rep. Truitt asked if any similar impeachment actions have taken place in other states. Bekesha said he did not know because the impeachment process is different in each state. He added that the easiest way is for the citizens of a state vote the person out of office. Bekesha explained that Judicial Watch litigates across the country in support of the rule of law and looks at bringing taxpayer standing challenges to various actions. He commented, “I think it is great this committee is taking the first step, holding a hearing and finding out what can be done next.”
Chairman Metcalfe noted that one of the points of Chairman Cohen was that “you shouldn’t beat someone over policy differences.” He commented, “I do think that we have a responsibility to make sure when somebody is in office that they are abiding by the law and they are complying with law as it spells out their duties of their office.” Chairman Metcalfe explained that his amendment spells out that the Attorney General would be impeached for misbehavior in office and she refused to comply with the Commonwealth Attorneys Law. Bekesha responded, “I am not here today to talk about disagreements in policy. I am here to talk about what the Attorney General’s obligations, duties and requirements are under the law.” He continued, “She has the duty and obligation to uphold and defend all statutes and all laws of the Commonwealth until the courts deem those statutes unconstitutional.” Bekesha added, “In this case, she decided to be the judiciary. She decided to be the court and say I believe this law is unconstitutional.” He said, “There is no policy dispute. This is about the rule of law and what the Attorney General is required to do as Attorney General.”
Chairman Metcalfe pointed out that the United States Attorney General Holder “has acted in a similar manner.” He expressed concern with the danger of ignoring the law to advance an agenda. Bekesha responded that Judicial Watch has seen it with Attorney General Holder and now other attorneys general across the country are doing the same thing. He pointed to Pennsylvania, California, Virginia and Ohio. Bekesha warned, “It is a trend around the country and it needs to be stopped.”
Joshua Prince, Chief Counsel, Firearms Industry Consulting Group, testified on the issue of Kane’s actions regarding firearms reciprocity agreements with other states. He argued that the attorney general has the statutory authority to enter into such agreement but “only the legislature has the power to and authority to modify, amend, rescind, revoke or otherwise change or invalidate an existing reciprocity agreement.” Prince told lawmakers, “While seemingly in direct violation of the statutory delegation and an attempt to usurp the legislature’s power, Attorney General Kane’s actions raise serious constitutional questions as Pennsylvania provided not opportunity to be heard prior to these changes, no compensation to the aggrieved and is now discriminating against its own citizens, as a Florida, Virginia or Arizona resident may lawfully carry a concealed firearm based upon his/her respective Florida, Virginia or Arizona license or permit in Pennsylvania, but a Pennsylvania resident may not carry a concealed firearm in Pennsylvania based upon the same Florida, Virginia or Arizona license or permit.” He argued, “It is clear that Attorney General Kane has unlawfully amended our reciprocity agreements, violated the constitutional rights of Pennsylvania residents and shirked her duties under the Pennsylvania Constitution and the Commonwealth Attorneys Act.”
Rep. Truitt asked if the power to modify, amend, rescind, or revoke only belongs to the legislature. Prince responded, “Yes.” Rep. Truitt wondered how the legislature would amend an agreement and if it would require a statute. Prince said he believes the change would be done through a resolution and not a statute. He added that the legislature enacted the statute with intention of restricting the delegation of power to the Attorney General and serve as a check. Chairman Metcalfe added that the statute was enacted in order to expand reciprocity between the states.
Rep. Maloney asked about the impact of Kane’s action regarding reciprocity agreements on Pennsylvania residents travelling state to state. Prince pointed out there has been no changes to date with the reciprocity agreements with Utah and New Mexico but the changes have been with the agreements with Florida, Virginia, and Arizona. He explained that the issue that arises is many states require additional background checks and training that Pennsylvania does not require. According to Prince, Utah requires a sufficient amount of training prior to the issuance of any Utah license to carry. He said that the reason the agreements become so important is because it depends on the state of issuance as to the number of agreements that state has with other states so many individuals will seek out Florida, Utah, Arizona or Virginia licenses to carry permits so they have reciprocal protections.
Chairman Metcalfe asked if the reciprocity issue should be added to his impeachment amendment. Prince responded, “Absolutely.”
James Clymer testified, “Once the Attorney General starts deciding which statutes she will defend and which she will not based on her personal political beliefs, the stability and security of legislative law in this Commonwealth are severely threatened.” According to Clymer, “This selective service view of her position abandons her responsibility, defeats the public trust, and removes any certainty about how she will act or whether she will act in the future.” He argued, “The message should be clear to Attorney General Kane: ‘You had a job to do, a job you were hired to do with duties prescribed under the constitution you took an oath to uphold. You chose to defy your mandate and you need to find new work.” He said the duty to defend the constitution “is essential to any democracy because it makes the executive a servant rather master of the law.”
Rep. Maloney commented, “We see this on a local basis also and it would appear to me for the due process of the people of Pennsylvania that we would be able to challenge our way up the ladder to those who would then say yes what took place at the local level was wrong and we are going to correct it.” He added that what he is hearing today is “the top of the ladder” is taking a position that they do not have which leaves in jeopardy “every other rung down the ladder all the way to the local level where we see a problem on a smaller scale.” Rep. Maloney described the Attorney General as an “interpreter” of the law. Clymer responded, “I have a fundamental disagreement with that.” He said, “I think the Attorney General, like any attorney, is hired to do the job and I would distinguish between the executive Office of Governor from the Attorney General.” Clymer argued that the Attorney General is “hired to represent the client” and “it not her prerogative to arbitrarily decide what the law should be or what it should mean or enforce it or not enforce it based on that.”
Rep. Truitt expressed concern with the attorney general deciding what laws to uphold and with the potential precedent it could set. He also expressed concern it could restrict future attorneys general. Clymer responded that he does not believe it sets a legal precedent but could set a “mindset precedent.” He asserted it undermines the rule of law and cautioned that when the law is subject to the whims of the enforcer you lose the safety of knowing the law. Rep. Truitt asked whether this could be waited out until the next election or if there could be a lasting effect which means there is a need for more immediate action. Clymer responded that there is a need for immediacy because it is becoming a trend at the federal and state levels and it is creating havoc. He said that that the General Assembly is designed to be the body that is most responsive to the people and, especially, the House. Clymer observed, “If the House fails to assert its duty then it becomes a dereliction of duty by the members.”
Rep. Keller asked if the people “get inadequate legal representation” when the Attorney General did not defend the marriage law. Clymer responded, “Absolutely.”
Rep. Saccone pointed out there are those that argue that the Attorney General can only enforce so many laws and has to prioritize and redirect her resources. Clymer conceded that could be an argument but it is not the circumstance today. He explained that there is some prosecutorial discretion but when a major, duly enacted law is challenged the Attorney General must defend it. Clymer added that apart from a direct conflict of interest the Attorney General must defend the law.
Rep. Krieger asked about the scenario where two Republican candidates are running for Attorney General and one candidate says he does not like a particular law and will not enforce it. Clymer responded that he believes there is a distinction between prosecutorial discretion and defending a law. He argued the Attorney General has a duty to defend a law; the decision should not be based on the Attorney General’s personal opinion of a law.
Chairman Metcalfe pointed out there is a clear charge in the Commonwealth Attorneys Act and the Attorney General has no discretion in defending a law.
Christian Adams, Policy Board Member, American Civil Rights Union, noted he is a Pennsylvania native and an election lawyer. He spoke about the impact “the comments by and policies of Attorney General Kathleen Kane” have had on election law. According to Adams, “Kane’s brazen unwillingness to pursue behavior by some elected officials who reportedly took bribes in exchange for votes against voter identification legislation sends a signal that criminal behavior touching on elections will be tolerated.” He warned, “Her unwillingness to enforce the law was not only corrosive to the integrity of Pennsylvania elections but also sends a message nationwide to would-be election criminals.” Adams stated his support for Article III of Representative Metcalfe’s amendment to House Resolution 578. Adams observed, “What is even worse than General Kane dropping the matter is her justification as to why she did so.” He criticized the attorney general for impugning “the competence and credibility of the investigation conducted by her predecessor as well as the line investigators on the case” and for invoking “the specter of race.” Adams said, “It is the duty of law enforcement officials throughout the Commonwealth to be totally intolerant of any criminal conduct touching our elections.” He added, “It is the obligation of the Attorney General to ignore the race, religion or partisan affiliation of the wrongdoers in deciding whether to enforce the law.” He called on the Attorney General to release to the General Assembly all of the hidden camera videos of the individuals accepting cash and gifts. Adams declared, “Let the people of Pennsylvania judge for themselves whether or not General Kane is faithfully executing the laws of the Commonwealth. Let the people be the judge of whether the evidence is sufficient.”
Rep. Maloney asked about the impact of the decision on due process. Adams pointed out the Philadelphia District Attorney said he would do it and the Attorney General shipped the file off to his office. He explained, “That is not how it is supposed to work. You have a statewide corruption statute that the attorney general is charged with enforcing and it is not to devolve down to district attorneys who are closer to those legislators.”
Chairman Metcalfe reviewed some of the actions taken by Attorney Kane since taking office as outlined in his amendment along with the altering of reciprocity agreements that was brought up today and the hiring of relatives. He commented that her actions “speak to a pattern of behavior” and remarked it doesn’t appear it will be ending “anytime soon.” Adams responded the attorney general would claim everything she did is perfectly appropriate. He said, “That is the gap we have in this country where people behave one way that outrages the other side they will defend that behavior and see absolutely nothing wrong with it.” Adams added, “That is the challenge this committee has. It is the people who engage in this kind of behavior, unfortunately, do not see anything wrong with it.” Chairman Metcalfe said he was troubled by the Attorney General setting up a follow-up meeting with the Philadelphia Inquirer and bringing along a personal attorney which he described as an attempt to bully the newspaper. Adams could not recall another instance where an elected official in the last five years threatened to sue a media outlet for exposing an investigative piece about the behavior of that elected official.
Rep. Knowles commented, “This is a very serious problem.” He expressed his wish that the committee Democrats would have remained to ask questions. Regarding Kane, Rep. Knowles asserted, “She is a servant of law not the master of law.” He concluded, “We as a legislature better deliver a message to the Attorney General, the district attorneys and law enforcement that they can’t choose what laws to enforce.
Rep. Gabler also expressed his appreciation for the hearing. He said, “The core of our job is to provide oversight.”
Chairman Metcalfe described the Democrats’ action as “a dereliction of duty.” He added that they attempted to override the process behind the scenes. He said, “We could have an exchange of idea and they could have defended the Attorney General.” Chairman Metcalfe concluded, “The legislative body needs to hold the Attorney General accountable.”