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.