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
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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
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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
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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
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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
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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
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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
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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
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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.
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