Four suggestions for meaningful reforms in Pennsylvania
The current persecution of Pennsylvania Attorney General Kathleen Kane at the hands of her political enemies in the court system has highlighted many structural problems in Pennsylvania government.
As we now see, for example, a state attorney general can never feel safe investigating corruption in the courts — be it pornography, Cash for Kids, or you name it — while those same courts can threaten to remove the attorney general by simply taking away her or his law license.
Could this be why there has been so much outrageous corruption in our state courts in recent decades, but very few criminal investigations?
Accordingly, reform-minded Pennsylvanians recently have suggested to me several necessary changes to strengthen the hand of independent investigators.
1. The state attorney general should not be required to be a practicing member of the bar, with a license that can be revoked by the courts.
The U.S. Constitution does not require a U.S. Supreme Court justice to be a lawyer. So why must a state attorney general be a licensed attorney? several lawyers have pointed out to me.
Further, the law doesn’t specifically require even the U.S. attorney general to be a licensed lawyer.
The Judiciary Act of 1789, which created the post, simply reads:
“And there shall also be appointed a meet person, learned in the law, to act as attorney-general for the United States…”
Note that “learned in the law” does not necessary require an active law license.
Pennsylvania actually is one of only 27 states that require the attorney general to be a licensed attorney, or active member of the bar.
Almost half the states don’t have this requirement. Some states have no law practice requirements at all, while others, like Maryland, simply require that the AG must have practiced law for a minimum number of years (it’s 10 years in Maryland) prior to election, but don’t require bar membership after election.
2. Pennsylvania should once again have an independent Crime Commission.
The problem, many say, is that investigators must feel free to investigate corruption in all three branches of state government, including the courts.
This can’t happen if the state attorney general must worry about being disbarred and removed from office by corrupt courts.
Kane’s current problem dates from the state’s 1968 constitutional convention, which required the attorney general to be a member of the bar in good standing. *
Several lawyers having pointed out to me that this was a deliberate demand of the courts and lawyers, to control the attorney general.
But the office has changed much since the 1960s. In the 1960s and 70s, the attorney general was appointed by the governor, and didn’t prosecute criminal cases, but referred them to local DAs.
The requirement that attorneys general be members of the bar carried over to the 1970s, when the constitution was amended to create an elective office. (The intent was supposedly that this was a requirement to run for office, not to remove a sitting AG from office.)
Gov. Ray Shafer, who presided over the 1968 constitutional convention (and himself a Yale law School grad), seemed to understand the inherent conflict of giving the courts the upper hand over the attorney general.
That’s why, some say, Shaffer established the Pennsylvania Crime Commission at the same time, in 1968, “empowered to investigate serious crime wherever it exists in Pennsylvania.” It was chartered to investigate systemic crime in any branch of government, included the courts.
The PA Crime Commission had subpoena power, but no power to bring charges.
How effective was the Pennsylvania Crime Commission? It was responsible for effectively investigating Pennsylvania Attorney General Ernie Preate in the 1990s. The Crime Commission’s report on AG Preate caused the U.S. Attorney to prosecute Preate.
Before he was forced from office, AG Preate and former state senator Vince Fumo succeeded in having the legislature disband the Crime Commission.
That’s why we need a newly constituted, independent Crime Commission: to go where the attorney general fears to tread.
3. We need to get serious about appointing judges, and getting politics out of our courts.
The merit appointment of state judges was by far the most contentious issue in the 1968 state constitutional convention. Voters in a contentious plebiscite defeated the effort in 1969, but the issue has never died.
Now, with AG Kathleen Kane’s case, we see the importance of removing politics from our courts, to ensure deliberative, full due process for all Pennsylvanians.
As I wrote last week, retired Justice Sandra Day O’Connor told the Philadelphia Bar in 2013 of her “concern that the idea of having one’s day in court and the merits of one’s case being decided without passion or prejudice is being eroded by threats to judicial independence, namely the need to raise money to compete in partisan judicial elections.”
Now, with the Kane case, we see why.
4. Mandatory retirement of judges at 70.
An article filed by the Associated Press last week noted, “Over the next three years, all but one of the four sitting justices will be forced to vacate their seats as they reach the mandatory retirement age of 70 — Chief Justice Thomas Saylor in 2016, Justice Max Baer in 2017 and Justice J. Michael Eakin in 2018.”
To get around this much-needed requirement, state judges are trying to pass a constitutional amendment to allow them to stay on till the age of 75.
The judges trying to pass this off as an issue of age discrimination, but it’s really not.
It’s not about age or Alzheimer’s, as they’re saying. It’s about disrupting their political power bases on our courts.
Many of these politicians wearing robes spend decades getting to the high court, only to be forced out after a few short years at 70.
That’s a good thing.
Both political parties badly want to control the state courts for years or decades into the future, to protect their political agendas, and their jobs.
Nowhere is providing justice and deliberative due process for all members of the public in our commonwealth a priority, in this political game both parties are playing.
That should change, as we now see in the political and selective persecution of Kathleen Kane.
*
“Attorney General, Section 5.
Qualifications of Governor, Lieutenant Governor and Attorney General
Section 5.
No person shall be eligible to the office of Governor, Lieutenant Governor or Attorney General except a citizen of the United States, who shall have attained the age of thirty years, and have been seven years next preceding his election an inhabitant of this Commonwealth, unless he shall have been absent on the public business of the United States or of this Commonwealth. No person shall be eligible to the office of Attorney General except a member of the bar of the Supreme Court of Pennsylvania.”
