A Pennsylvania lawmaker, tired of the “tyranny” of elected officials simply changing laws they don’t like, has held a hearing on his plan to impeach state Attorney General Kathleen Kane for creating a “constitutional crisis” by refusing to defend the state’s definition of marriage.
That law limits marriage in Pennsylvania to a man and a woman, but Kane in July 2013 simply decided not to defend the law in a challenge, because she believed it to be unconstitutional.
Her move is just the latest among a long list of elected or appointed officials – from U.S. Attorney General Eric Holder and President Barack Obama to the Virginia Attorney General Mark Herring – who simply decided on their own to refuse to enforce laws with which they disagree.
Without any change in the law by legislatures, or any ruling from the judiciary.
In Pennsylvania, the issue was raised by Rep. Daryl Metcalfe, a Republican who took the direct and constitutional approach to what he saw as the problem of an elected official refusing to abide by her oath of office.
He proposed impeaching Kane, 47.
And convened the Pennsylvania House State Government Committee for a legislative hearing on it.
According to the Post-Gazette, just a few minutes into the hearing this week, Metcalfe asked House security officers to remove Rep. Michael O’Brien, a Democrat, who said, “Have your kangaroo court, pal,” and led the entire Democratic contingent in a walkout.
Almost as soon as the meeting began on Metcalfe’s articles of impeachment against Kane, Rep. Mark Cohen, a Democrat, made a motion to adjourn the hearing, but the vote failed 11-10.
O’Brien repeatedly spoke, with Metcalfe ruling he was not in order, until finally he asked security to remove O’Brien.
The Gazette reported as the security staff approached him, all 10 Democrats stood up and left the room on the call of “Let’s go, gang.”
The primary issue involved was Kane’s refusal to defend state law, because she decided that she thought it was wrong.
The actual impeachment appeared unlikely to succeed even from the start – it would require an impeachment vote in the state House and House Speaker Sam Smith, a Republican, has said it’s not a priority. And it also would require a two-thirds vote for a conviction in the Senate.
But Kane critics clearly believe there is an issue to be resolved.
Michael Bekesha of Judicial Watch told WND that Kane’s abandonment of the state’s Defense of Marriage Act made it clear that she believes that she has the authority to create, enforce, and interpret the law.
He suggested, therefore, that Kane’s view of Pennsylvania is that it is a tyranny of one, not a democracy.
Metcalfe told WND, “She went further and caused damage to our argument [defending DOMA] as she declared DOMA unconstitutional even though no court had done so.”
Kane, at her election, claimed, ‘It’s the role of the attorney general to be an independently elected voice. People see politics as a close-knit, good ol’ boy network, and I want to change that starting day one.”
Metcalfe contends she did just that – illegally.
“Only the legislature can write or revise or amend laws. The judiciary has authority to declare law unconstitutional. She decided she was all three branches of government,” Metcalfe told WND. “She’s a servant of the law, not a master of the law.”
Metcalfe and Bekesha allege Kane’s DOMA decision was one of several that make her eligible for impeachment. Another move was to scuttle a well-developed sting case that had suggested charges against several Democratic state representatives who allegedly accepted money from an undercover operative.
There also were concerns over Kane’s decision to promote her twin sister and give her a 20 percent raise, threats to sue media outlets for investigating allegations of corruption, and her refusal to recognize conceal and carry reciprocity laws with other states.
Bekesha said the precedent is that “attorneys general can pick and choose which laws they choose to enforce and which they do not.”
Metcalfe said his committee is moving forward with impeachment plans, to defend the constitutional basis for government, even though no immediate vote is scheduled or expected. He said he will continue to monitor what he described as Kane’s “misbehavior in office.”
The way Kane operates, he said, is a “tyranny. A decision of one in place of many.”
James Clymer, a Lancaster County attorney who was a candidate for attorney general, told Pennlive that “When a major law [like DOMA] is being challenged in court, I don’t really believe the attorney general has discretion [to decide to abandon the law] in a case like that.”
Bekesha told the committee following Kane’s actions, “The precedent is now set for officials to decide which laws they want to enforce and which they don’t … and you may see more Pennsylvania officials doing just that.”
Rep. Jerry Knowles said lawmakers need to send a message that it is not up to the attorney general, or district attorneys or the law enforcement “to decide which laws you will enforce.”
“Because if we allow that to happen we are on a very, very slippery slope.”
One was when the National Organization for Marriage targeted Virginia Attorney General Mark Herring, who had announced that he was switching sides in court cases, and would be advocating for same-sex marriage in the state.
NOM said that decision was reason for his impeachment.
“Attorney General Herring swore an oath to defend the constitution of the Commonwealth, yet now he is participating in a lawsuit against the very people he is sworn to represent, the citizens of Virginia who preserved marriage in their constitution. This malfeasance and neglect of duty is not only a disgrace, it’s an impeachable offense under the constitution,” said NOM President Brian Brown.
NOM spokesman Chris Plante told WND that the bottom line is not a fight over the definition of marriage or the acceptance or rejection of same-sex “marriage.”
“It means lawlessness. Every American ought to be afraid,” he said.
It means that an elected attorney general who swore an oath to defend his state’s constitution is forsaking that oath, forsaking those who elected him, and choosing “on a personal whim which laws to defend.”
Professor John Eastman, chairman of NOM’s board of directors and a highly regarded constitutional law expert, said Herring’s decision simply is lawless.
“The attorney general’s decision to advocate against the state’s marriage law is an egregious violation of his duty. Here you don’t merely have the attorney general abandoning the defense of the law and remaining neutral – a decision which itself would be based on very dubious grounds. No, this goes further: Herring is staying involved in the case, and advocating directly for the side opposed to the interests of his clients, the people of Virginia. Any other lawyer pulling that kind of nonsense would be disbarred.”
Brown noted that Herring’s actions are reminiscent of what happened in California, where the state attorney general refused to defend Proposition 8, a state constitutional amendment defining marriage as being between one man and one woman, and it was struck down by a homosexual trial judge in San Francisco.
WND reported earlier on the others cases, including when the Pacific Justice Institute wanted to hold federal prosecutors accountable for abandoning their clients, the U.S. taxpayers, in challenges to the federal Defense of Marriage Act.
The complaints, signed by more than 900 people, allege the attorneys litigating cases regarding the constitutionality of DOMA “intentionally took action to sabotage the case and prejudice the federal defendants that they were charged with defending.”
But bar associations simply said they saw nothing wrong with the decision to abandon clients, and there was no punishment.
The most famous of the switchovers, however, was the announcement several years ago by Obama and Holder that they didn’t like the federal DOMA, and would no longer defend it in court fights.