PART ONE: KEISLING: “Direct removal” (back door impeachment) wasn’t meant to apply to attorney general

An obscure PA constitutional clause from 1873 meant to quickly remove low-level elected officials from office wasn’t intended to apply to an appointed state attorney general, much less an elected one

by Bill Keisling

The Pennsylvania state Senate has announced plans to explore the use of an obscure constitutional clause to supposedly quickly remove Pennsylvania Attorney General Kathleen Kane from office.

But that unusual path carries with it many serious, if fascinating, problems that are at once legal, political, and historical in significance.

Foremost among the problems: the Senate hopes to invoke a clause, added to the state constitution in 1873, that was never intended to apply to the state attorney general.

Nor, records of the convention show, was it meant as a substitute for full hearings conducted by both houses of the legislature in the proper impeachment proceedings of high-level state officials like the attorney general.

The clause in question, which today is found in Article VI Section 7 of the state constitution, reads:

“All civil officers elected by the people, except the Governor, the Lieutenant Governor, members of the General Assembly and judges of the courts of record, shall be removed by the Governor for reasonable cause, after due notice and full hearing, on the address of two-thirds of the Senate.”

Amazingly, what no one seems to consider today, when reading the wording of this clause from 1873 and attempting to interpret it to today’s circumstances, is that the state attorney general was not elected until 1980.

This sentence, mentioning, “officers elected by the people” did not even apply to the attorney general — nor was it intended to apply to such a high-ranking elected state office holder — when it was originally added to the constitution in the 19th century.

But the problems and oversights get worse from there.

Last month GOP state Senate President Pro Tempore Joe Scarnati announced the formation of a seven-member committee of senators, including himself, to explore the possibility of invoking this clause to remove Kane from office.

The present day reading and interpretation of a little-used, nearly 150-year-old clause is fraught with problems, large and small, having not only to do with the intent of its framers and constitutional law, but outdated language usage.

Sen. Scarnati and his lieutenants, for example, have said they will invoke the clause to determine AG Kane’s “competency” to serve without a law license.

Though the words “competency” and “competence” appear many times in the 1872-73 constitutional convention debate over this clause, the word had a much different meaning than it does today.

In 1872, records show, the word was a veiled expression to describe office holders who had with time grown incompetent, or senile: what today we call Alzheimer’s disease.

Sen. Scarnati says his committee, moreover, will explore the use of the clause for the very narrow and limited question of whether Kane can continue to serve as attorney general when her law license has been suspended by the state supreme court.

But records of the convention of 1872-3 show that the clause’s framers intended it to invoke “full hearings” on a broad spectrum of all pertinent issues, akin to impeachment hearings, and certainly not focused a single, narrowly defined issue as described by Sen. Scarnati.

The constitutional phrase, and the intent of its framers, clearly demands a “full hearing.”

Fast and loose, superficial reading of a flawed clause

For months Kane’s political opponents have bandied about this “direct address” removal clause as a means to quickly remove the attorney general from office.

Political observers have suspected that Kane’s law license suspension and the resulting crisis appear to have been manufactured from the start by Kane’s opponents as a deliberate means to invoke the little-used removal clause.

Trouble is, Kane’s opponents strangely never bothered to investigate the historical use of the clause, nor its intended purpose.

For months, for example, Kane’s opponents said the clause had never been used before.

Until I pointed out, in an article I wrote this September, that a failed “direct removal” attempt had occurred — and failed — in 1891.

“The procedure is so rare that reporters, lawyers and political commentators thought it had never been used,” wrote the Allentown Morning Call.”But Harrisburg-area author Bill Keisling found a record of its use in a Senate journal from 1891 and blogged about it.”

In fact, the “direct removal” procedure was not used only once, but three times in the state’s history — all in the 19th century, and within a few years of the clause’s placement into the constitution.

In addition to the 1891 failed attempt to remove the state treasurer and auditor general for alleged financial chicanery, use of the clause on two other occasions is mentioned in passing in the book, Commentaries on the Constitution of the United States (Roger Foster, Boston Book Company, 1895).

Both of these uses of the clause to remove state office holders were for its intended purpose: “mental incapacity,” or senility.

“The senate of Pennsylvania has also addressed the governor for the removal of Edward Rowan, high sheriff of Philadelphia, and Judge John M. Kirkpatrick of Pittburg — the later in 1885, both for physical and mental incapacity,” reports Foster in his 1895 book.

The glaring fact that Kane’s political opponents — judges, lawyers and state senators who supposedly place great meaning on words, precedent and intent — haven’t done their homework or due diligence raises as many if not more questions about them, and their own “competency,” as it does about AG Kane.

CONTINUES AS PART TWO