Kane's dangerous precedent
In November 2014, Gov. Tom Corbett is defeated by Democrat Allyson Schwartz. In this hypothetical scenario, Schwartz then serves alongside fellow Democrat Kathleen Kane, the state attorney general.
A lawsuit is filed challenging the constitutionality of Pennsylvania's “stand your ground” law, approved in 2011 by the Republican-controlled Legislature and signed by Corbett, a Republican. It provides an expanded claim of self-defense for shooting an assailant outside the home — on the street, in a car, in the office.
Kane recently announced she won't defend the constitutionality of Pennsylvania's 1996 law banning gay marriage. She said she could not ethically do so because it is unconstitutional. Under the Commonwealth Attorney's Act, which established the Office of Attorney General, Kane said she is allowed to delegate defense of a lawsuit. It's sent to the General Counsel's Office, which is under the governor. Many matters routinely are deferred. But defending the constitutionality of a statute might be different, former attorneys general say.
The AG's office was established through a constitutional amendment approved by voters in 1978. The office was set up separately because Pennsylvanians, fed up with corruption under the Milton Shapp administration, wanted to see the attorney general operate independent of the governor.
So under the hypothetical scenario described above, Kane delegates the case to the general counsel under Schwartz (or any liberal Democrat). But since the general counsel works for the governor, the governor then tells the general counsel he or she is opposed to the stand your ground law and defers to the attorney general.
The net result: Neither the commonwealth's top lawyer, the attorney general, nor the governor's lawyer defend the law.
It is not far-fetched given the uproar over the George Zimmerman case and the killing of Trayvon Martin.
A Florida jury's acquittal of Zimmerman on murder and manslaughter charges prompted calls across the nation for repeal of stand your ground laws. More than 20 other states, including Pennsylvania, have laws similar to Florida's.
But if the commonwealth doesn't defend the law, the plaintiff would win by default. (Any third, private party that might step in to defend the law likely would be found to have no standing.)
The top state lawyer should defend a law approved by the General Assembly and signed by the governor. Lawyers regularly defend cases and defendants they find reprehensible. They are advocates. The attorney general is paid to defend state law.
Kane's move was bold. Pennsylvania polls show a shift toward acceptance of gay marriage. That, however, is not the point.
Brad Bumsted is the state Capitol reporter for Trib Total Media (717-787-1405 or [email protected]).