Wednesday, July 24, 2013

Morganelli: AG Stance on DOMA is Principled, Not Politics

The recent announcement by Attorney General Kane that her office will not defend litigation attacking the constitutionality of Pennsylvania’s version of DOMA has Republicans all in a tither. They have accused the attorney general of shirking her responsibility to enforce all laws and have deemed her a “hypocrite.” They have released an out of context clip from the campaign in which then candidate Kane, in response to a question, talks about the attorney general’s obligation to enforce all criminal laws. Whether you agree or disagree as to the underlying issue relative to the right of gay and lesbian couples to marry, the issue of the attorney general’s decision not to defend the constitutionality of a statute is a fair subject for evaluation. It is true that the Commonwealth’s Attorneys’ Act which sets forth the jurisdiction, duties and responsibilities of the Office of Attorney General specifically states that it “shall be the duty of the attorney general to uphold and defend the constitutionality of all statutes.” However, that provision also provides wiggle room for an attorney general to exercise discretion. The statute provides that the duty is contingent “upon the absence of a controlling decision by a court of competent jurisdiction.” It could be argued that the recent opinion by the U.S. Supreme Court now controls the viability of Pennsylvania’s version of DOMA. The attorney general, to my knowledge, has not stated this as a rationale to defer. However, it can also be argued that the attorney general’s obligation presumes that the attorney general comes to the legal conclusion that the statute at issue is constitutional. Lawyers in general are not permitted by ethical rules to prosecute and/or participate in litigation in which they do not have a good faith basis to pursue. If Attorney General Kane has come to the good faith legal conclusion that Pennsylvania’s law is unconstitutional, it may be that ethically she has every right to decline to defend the statute.

The attorney general has cited another section of the Commonwealth Attorneys’ Act which allows the attorney general to defer to the Office of General Counsel in matters that the attorney general believes are not in the “best interest of the Commonwealth.” Although there is no case law interpreting these sections and whether the attorney general’s responsibility in this regard is mandatory, it is clear that Attorney General Kane has staked out a plausible legal position that justifies her decision. It is interesting that the Republicans in power are complaining that her decision is political while forgetting that this is an office that was controlled from 1980 to 2013 by the Republicans all of whom played politics from that position. The Republicans who held this office were all politicians in the first instance. The first attorney general, Mr. Zimmerman is still active in Republican politics. The next three Republican attorney generals, Mr. Preate, Mr. Fisher and Mr. Corbett all ran for governor and used the Office of Attorney General as a political launching pad. One made it to the governor’s office, one made it to jail and the other parlayed political connections into an appointment to the Third Circuit Court of Appeals. Mr. Corbett was the most political attorney general engaging in a partisan political prosecution of mostly Democrats and using his office to go after political opponents. The truth is that Attorney General Kane to date has handled this office professionally and all decisions seem to be based on principle and not politics. The review of the handling of the Sandusky case was demanded by the people who spoke loudly at the polls in 2012. Closing a gun-law loophole that let Pennsylvanians who were denied the right to carry a gun here get it from Florida, and stepping on the Governor’s plan to privatize the lottery so that more of his friends can get rich all were necessary and principled moves. Republicans need to stop whining and recognize that there is a new sheriff in town – Democrat Kathleen Kane, and she should not allow the noise and chatter from distracting her from letting her principles guide her actions.

John Morganelli is district attorney for Northampton County and was President of the Pennsylvania District Attorneys Association in 2000. He was the Democratic candidate for attorney general in 2008.

13 comments:

Anonymous said...

Classic weasel words in the Act allowing public servants to play politics.

Your job as AG should be to enforce the laws. Period. Not determine what laws you like and what you don't, or selectively enforce like the IRS apparently does.

Enough already. AG Kane, do your damn job.

And for the record, I support gay marriage.

The Banker

Anonymous said...

Not political? John? He's been whoring for a statewide job for a decade. Everything he does is political, just as with Kane, who is running for governor. Have some self respect when carrying John's water.

Anonymous said...

is not morganelli's involvement in local politic unethical?

Anonymous said...

"It could be argued that the recent opinion by the U.S. Supreme Court now controls the viability of Pennsylvania’s version of DOMA."

Didn't the Supreme Court in Windsor explicitly leave open the issue of the viability of individual state's laws? Windsor struck down Section 3 of DOMA, which dealt with the federal government, but it left untouched Section 2, which allows states to deny recognition to other states’ marriages.

Its a big sign post saying which way the Supreme Court may go, but its legally untrue to call it "controlling" with regard to any state laws. Kennedy's opinion was grounded in the notion that marriage law has traditionally been left up to the states.

The next battle is individual state's laws, but its untrue to argue that Windsor is controlling on the issue.

Bernie O'Hare said...

Not at all.

Anonymous said...

Come on Bernie. If this was Corbett doing this when he was AG you would be asking him to step down for not doing his job. Anyone with a brain knows she did this for political reasons only. She wants to be govenor and she did this for votes. I am for gay rights and their right to marry, but Kane is doing this just for votes...Period!

Bernie O'Hare said...

Actually I liked Corbett as AG and voted for him when he ran for Governor. But an AG should never attempt to enforce a law she considers unconstitutional or even immoral. Let's say the state legislature passes a law allowing you to shoot any Hungarian you see. Under your logic, the AG should defend that law. So I respectfully submit that your logic is flawed.

Anonymous said...

Jim Gregory Hungarian, you bigot.

Anonymous said...

Bernie,

The DOMA act is out of my area of interest but no one can seriously contest that Kane is using the AG position in a completely partisan fashion.
I now think less of Morganelli.

Scott Armstrong

Bernie O'Hare said...

I don't contest that as it is a partisan office, just like Governor.

Anonymous said...

I still have a vision of John sitting all alone in his Pittsburgh hotel room, rubbing it raw on Spank-a-vision while waiting for the state party guy to show up with bags of campaign cash that never arrived. What a politician. Everything he does is political. His ethics are the political kind, nothing more.

Lighthouse said...

I voted for Kane, mainly because of the slimey commercial the GOP ran in which the victims own father said was not accurate.

That said, I believe she is being overtly political with this call and will take it into consideration the next election. If she doesn't want to personally defend it, assign it to an underling. Why have courts and checks and balances if the AG can attempt to exercise sole discretion? Would it not give greater validity, yea or nay, if the law had "its day in court"?

bcm said...

John's argument is akin to a criminal public defender saying that a defendant isn't entitled to a defense because the attorney doesn't "believe" in the defendant's innocence. That doesn't cut it, because the defense attorney's job is to provide a competent defense. Similarly, the Attorney General is required to argue in support of state laws to assure that someone does, and does it well. Of course there is politics involved in any elected office, but that doesn't justify abrogating clear responsibilities. The DA and the AG are wrong on this one- no matter which side of the DOMA issue they find themselves. Let the Court do its job and determine the constitutionality of the statute. Don't advocate for the AG to pre-judge it.