PA judge oversteps bounds in Kane executive branch patronage case

Jefferson’s position was this: If the judiciary was going to interfere with politics and executive and legislative powers, Jefferson was going to interfere with the judiciary. That remedy stands today.

by Bill Keisling

For years someone has been leaking troves of secret grand jury material to the Philadelphia Inquirer and the Harrisburg Patriot-News.

Last week Pennsylvania Attorney General Kathleen Kane fired James Barker, a holdover Corbett patronage appointee who continued to serve as Kane’s chief deputy in charge of criminal appeals and grand juries.

“While not known yet who is specifically responsible for those leaks, supervisory accountability falls to the head of the unit,” Kane explained in an April 9 press release.

This prudent and long-overdue action prompted a grand jury supervisory judge, William Carpenter, to oddly threatened AG Kane with contempt for firing Barker, who serves at Kane’s executive pleasure.

On the surface, this episode shows the extent to which Republicans, Judge Carpenter included, are attempting to make mischief by throwing monkey wrenches into the executive administrations now controlled by Democrats elected to the offices of governor and attorney general.

This January, Republicans in the state legislature took Gov. Tom Wolf to court after Wolf fired a Corbett midnight appointee to the office of Open Records.

To Gov. Wolf’s credit, he quickly and authoritatively took control of his executive branch offices by throwing out the opposition party’s patronage appointees.

AG Kane, by contrast, has been slower to assert her patronage responsibilities and prerogatives.

And it has cost Kane dearly. Until, perhaps, now.

But what’s really going on?

It’s all about political patronage, and loyalty to one’s patron, and party.

Patronage holds a rich, central, and vital role in Pennsylvania, and U.S., politics.

At one time, into the 1970s, the Pennsylvania governor’s office directly controlled upwards of 100,000 patronage jobs, including, until the 1980s, the state Office of Attorney General, which now is an independent elective office.

Unionization, and a series of far-reaching court decisions in the 1970s, 80s and 90s, dramatically cut back on these mostly low-level patronage firings, and hirings.

To understand what’s going on now in the Kane case, we have know to something about the rich and fascinating history of political patronage, and its long relationship to the courts, and law. It’s a story that stretches back to the founding of our country.

I summarized the relatively recent court decisions governing and curtailing patronage practices in my book When the Levee Breaks: the Patronage Crisis at the Pennsylvania Turnpike, the General Assembly, and the State Supreme Court.

In the 1976 case Elrod v. Burns, a newly elected Democratic sheriff was found to have unconstitutionally dismissed low-level office workers and replaced them with supporters from his own party. Justice William Brennan wrote that the court in Elrod reasoned “conditioning employment on political activity pressures employees to pledge political allegiance to a party with which they prefer not to associate, to work for the election of political candidate they do not support, and to contribute money to be used to further policies with which they do not agree. The latter, the plurality noted, had been recognized by this court as ‘tantamount to coerced belief.'”

In the Elrod decision the court cited among other precedents a 1972 case, Perry v. Sindermann, in which it held that a teacher was unconstitutionally refused a new contract by a school board “because he had been publicly critical of its policies.”

Free speech and the First Amendment were increasingly viewed by the court as at odds with patronage. Coerced opinion, the court recognized, was unhealthy to a free society.

In a 1980 case, Branti v. Finkel, the U.S. Supreme Court decided that the First Amendment prohibited a newly appointed Democratic public defender from discharging assistant public defenders who weren’t Democrats.

These two cases, Elrod and Branti, ruled out dismissing most low-level employees for reasons of patronage, and set the stage for the next big hit at patronage, Rutan v. the Republican Party of Illinois.

In the 1991 Rutan case, the U.S. Supreme Court ruled that low-level patronage hirings also violated free-speech rights.

After Rutan, all that remained constitutional in patronage appointments were high-level policy jobs, such as Gov. Wolf’s director of Open Records, and yes, certainly, AG Kane’s deputy of grand juries, James Barker.

In Pennsylvania, in the 1990s, these U.S. Supreme Court decisions set off a battle royale in the state legislature, the courts, and at the Pennsylvania turnpike, of all places. Why the turnpike?

The Pennsylvania turnpike was founded on political patronage, and has earned a reputation since its founding as a patronage dumping ground.

Rather than deal honestly with the problem, since the 1990s Pennsylvania politicians in both political parties have had to disguise their ongoing patronage hiring and firing practices, and have driven political patronage underground.

Patronage, in Pennsylvania political circles, thereafter, unfortunately, became a dirty word. But patronage is still very much alive. And that’s a good thing, if we care about responsive government. Sometimes you just have to throw the bums out.

To this day in Pennsylvania one seldom hears the word patronage, and that’s too bad. To study patronage is to study realpolitik and government, how it works, and, as we see now in the Kane case, how government doesn’t work.

AG Kane herself helped to conceal these patronage practices early in her administration when she prosecuted high-level Pennsylvania turnpike administrators on pay-to-play charges, instead of calling them what they really were: patronage abuses.

But now Kane seems to have seen the light, and realizes she cannot effectively run a state office when members of the opposition party are sabotaging her office from within, with the help of their buddies on the court.

But where does this leave Judge Carpenter, and his judicial over-reach into AG Kane’s executive prerogatives?

With his ill-advised political attacks on AG Kane, Judge Carpenter has bumbled into some of the deepest political and legal waters in American government.

Judges as patronage appointees

Keen students of political patronage know that judges — and the judiciary — themselves are high-level patronage appointees, even when they are elected, as in Pennsylvania.

Pennsylvania’s master patronage politicians, such as former state Senator Vince Fumo, and Pennsylvania turnpike commissioner Pete Camiel, understood that the appointment of judges, and helping judges to get elected to the bench, represents a patronage opportunity, and a type of insurance for those occasions when the politician and political patron runs afoul of the law.

It works like this: you help a judge get onto the bench, and then, if you find yourself in court, you call in a favor.

It’s no wonder that Sen. Vince Fumo drew a light sentence when he finally was prosecuted for corrupt patronage practices in 2009. Fumo, I should point out, began his career as a patronage boss in Philadelphia, working as a lieutenant for long-time political boss Pete Camiel.

Fumo and Camiel actually were convicted together by federal prosecutors in the 1970s for hiring ghost workers and other patronage abuses but — surprise! — a federal appeals judge threw out the verdict in 1981.

So judges, it’s important to understand, are part of the patronage game.

In his dissenting vote in the landmark 1991 Rutan patronage decision, even Justice Atonin Scalia understood who buttered his bread.

Scalia begins his dissent by complaining, “Today the court establishes the constitutional principle that party membership is not a permissible factor in the dispensation of government jobs, except those jobs for the performance of which party affiliation is an ‘appropriate requirement.’

It is hard to say precisely (or even generally) what that exception means, but if there is any category of jobs for whose performance party affiliation is not an appropriate requirement, it is the job of being a judge, where partisanship is not only unneeded but positively undesirable. It is, however, rare that a federal administration of one party will appoint a judge from another party. And it has always been rare. See Marbury v. Madison. Thus, the new principle that the court today announces will be enforced by a corps of judges (the members of this court included) who overwhelmingly owe their office to its violation.”

Scalia’s mention of Marbury v. Madison should not go unnoticed.

Thomas Jefferson’s remedy for judicial overreach

Marbury v. Madison was decided in 1803, during the administration of Thomas Jefferson. With Marbury we begin to see that the wrestling with patronage, and court overreach, stretches back to the very foundation of our country.

To understand AG Kane’s problem today, and her remedy, we must again look to history: Thomas Jefferson, and Marbury.

As I wrote in When the Levee Breaks:

“President George Washington at times pretended to disapprove of parties and patronage. His farewell address cautions against the formation of parties or, as they were called, factions. In reality he deferred most matters of patronage and appointments to his secretary of the treasury, Alexander Hamilton, who nearly always appointed Federalists. Washington witnessed a growing rift between Hamilton and Thomas Jefferson. Jefferson’s followers, the Republican-Democrats, soon were excluded.

“Our second president, John Adams, a Federalist, saw factionalism in his own party eventually contributing to his electoral defeat by Thomas Jefferson. In retaliation, Adams made political appointments right up to his last day in office. One of his last acts was to appoint Chief Justice John Marshall to the Supreme Court. The Judiciary Act of 1801 also allowed Adams to make last-minute appointments of more than 200 Federalist “midnight judges,” who had no commission, duties or salary.

“Jefferson disliked the idea of patronage, and preferred a merit system. By the time he was elected president, after twelve years of Washington and Adams, Federalists held all the offices. Jefferson observed that job vacancies “by death are few; by resignation none.” Awash in Federalists, the pragmatist in him bailed the boat, tossing the opposition overboard. He systematically replaced Adam’s appointments with his own partisans. Jefferson’s administration repealed the Judiciary Act of 1801, and informed the midnight judges to consider their appointments as never having been made.

“William Marbury was one of forty-two justices of the peace appointed by Adams for the District of Columbia. He petitioned the U.S. Supreme Court to force Secretary of State James Madison, by order of what was called “writ of mandamus,” to deliver the commission. A section of the Judiciary Act of 1789 had empowered the Supreme Court to issue mandamus writs. Mandamus, Latin for “we order,” is a writ from a superior court ordering a public official, or a lower court, to perform a specified duty. (In fact, in the current Pennsylvania GOP lawsuit against Gov. Tom Wolf, the courts are asked to issue a mandamus to order Wolf to give the Republican appointee back his job in the Open Records office.)

“Marbury’s case became the landmark 1803 case Marbury v. Madison, in which the Supreme Court under John Marshall struck down the part of the Judiciary Act of 1789 empowering the court to issue the writs of mandamus. The courts won that case: Marbury never got his job, and Jefferson was appalled that the court could overturn a law of congress.

“The Marbury v. Madison decision set the precedent for judicial review of the constitutionality of laws. Today, when Marbury v. Madison is discussed it’s usually from this perspective, and the decision’s claim on implied powers. Often forgotten is that patronage was the cause of the decision. Our ongoing wrestling match with patronage is at the heart of not only our two-party system, but also the formation of judicial oversight and independence.

“After Marbury, Federalists still controlled the Supreme Court, and the Democratic-Republicans feared that the court’s newfound power would be used to help the opposition. Under Jefferson, the Democratic-Republicans soon turned to the tactic of impeachment to check the courts.”

Jefferson’s position was this: If the judiciary was going to interfere with politics, and executive and legislative powers, Jefferson was going to interfere with the judiciary. That remedy stands today.

To get the judiciary into check, Thomas Jefferson proceeded to investigate and impeach judges.

It’s time to launch criminal investigations of Pennsylvania courts

That today remains Attorney General Kathleen Kane’s best remedy, if she has the chops, and steel, for it.

It’s time for Attorney General Kane to open investigations into widespread corruption in Pennsylvania courts, and, if need be, for lawmakers to start impeaching judges.

For starters, Kane should ask herself: why were 6,500 kids for years sold down the river to private detention facilities in Luzerne County by Pennsylvania courts? The co-owner of these private detention facilities was the son of state Supreme Court justice Stephen Zappala. Did this family relationship prevent the high court from acting promptly to help these victimized kids? That certainly requires investigation by Kane’s office.

Other questions involving recent court corruption and conflicts of interest come to mind.

Why did Chief Justice Ron Castille give a $12 million Philadelphia family court project to a golf buddy?

Did Castille obstruct justice and unlawfully interfere with an ongoing criminal investigation in the executive AG’s office by demanding Kane turn over pornographic emails?

Is Judge Carpenter unlawfully obstructing justice by protecting recipients of those porno emails, and issuing gag orders?

Why are Centre County courts “out of control?”

Why have York County courts allowed a prostitution ring, extortion, case fixing, insider favoritism, and worse, to operate for years out of the courthouse?

The court’s Judicial Conduct Board has long been known to be a farce, with many conflicts of interest evident, possibly criminal in nature.

There are also cover-ups in the court’s attorney disciplinary board.

Why do many Pennsylvania citizens feel they cannot get an honest, fair shake in court? Do court insiders have an inside track?

It’s time for Attorney General Kathleen Kane to undertake criminal investigations of Pennsylvania courts.

EDITOR’S NOTE: Bill Keisling is the author of several books on political patronage, including When the Levee Breaks, and Helping Hands. He has testified before the state legislature on issues of political patronage. He is considered one of the state’s leading experts on political patronage and court corruption.