At a Pennsylvania Press Club luncheon in Harrisburg on Monday, Saylor addressed questions about the suspension of Kane’s law license. He emphasized the Pennsylvania Supreme Court has not removed Kane from the bar, and is not able to do so. He also took questions on whether Kane was afforded due process and how the suspension affects Kane’s ability to serve in office.

“The fact of the interim suspension is in no way constitutionally disabling,” Saylor said. “In my view, the court has no ability to remove the attorney general. Those removal provisions are vested to the political branches.”

Former Chief Justice Ronald D. Castille said that part of Saylor’s remarks was clear, but he disagreed with his successor. Castille said the court should issue a rule to show cause as to why Kane should or should not be able to serve as attorney general, and then hand down a full opinion.

Castille said Saylor’s statement left the issue of Kane’s continuation in office to the General Assembly. But Castille said the high court should address that issue.

“They ought to move to the next step and decide whether she could or could not be the attorney general because that’s really a legal question,” Castille said. “It looks like the court is going to leave it up to the legislature to make the decision. … It’s kind of a limbo situation.”

Kline & Specter attorney Charles “Chip” Becker, who often practices in the state appellate courts, said serving on the Supreme Court is “an immense and expansive job” that, along with issuing legal opinions, includes rulemaking, considering disciplinary issues and generally regulating the practice of law in the state. Addressing these disciplinary issues is well within the court’s ambit, he said.

This situation is “not an exercise of the court sticking its nose where it doesn’t belong,” Becker said. “The Supreme Court justices have the ultimate responsibility to regulate the practice of law.”

Appellate attorney John Hare of Marshall Dennehey Warner Coleman & Goggin said Saylor’s comments and the court’s handling of the issue provide a good example of the chief justice’s jurisprudence.

“It’s careful and precise in not overreaching, and in deciding the issues that are actually before the court,” Hare said. “It’s avoiding getting the court involved in political circuses to the extent possible.”

Unusual Circumstances

Although it is unusual for a judge or justice to speak publicly about his or her decision-making—especially when it deals with a currently unfolding, high-profile case—court watchers agreed Saylor’s comments and the court’s actions show the court is generally handling an unprecedented situation properly.

Saylor even commented Monday on how the decision came about. He said the voting process was “pretty smooth,” and there was no dealmaking involved.

Former Supreme Court Justice William H. Lamb of Lamb McErlane said the court’s desire to clarify a ruling does not imply that a deal was made.

Even so, he said, “I would never use the term ‘deal’ when talking about the Supreme Court of Pennsylvania or any appellate court of Pennsylvania. I would rather use the term ‘compromise’ or ‘accommodation.'”

Castille said he could not speak to the justices’ considerations in this particular case, but said compromise is not uncommon in releasing an order such as this one.

“Oftentimes in order to move forward on an issue … you take into account the individuals who might have a different idea and you try to compromise to get an order out,” Castille said. “There was probably some give-and-take in there, but I don’t know what actually went on in their discussions.”

Becker said he did not feel that Saylor’s comments were out of character for the chief justice, who Becker called “very thoughtful and deliberative.”

“Plainly the temporary suspension of the attorney general raised questions about her ability to hold the office. Justice Saylor was using the opportunity to respond to that concern,” Becker said.

Hare said the court’s order walked a fine line between fulfilling its supervisory role, while recognizing that it cannot remove Kane from office, and made it clear it will stick to applying the law instead of making any political pronunciations.

“I think the court applied well-settled rules in finding that the gravity of these charges prevent the attorney general from superintending her office,” Hare said.

Revisiting the Issue

Lamb said Saylor’s answers could be read as a clear rejection of the argument that the constitution prevents Kane from being attorney general.

“It’s an unusual statement,” Lamb said. “But I think what the chief justice is saying is … if somebody were to come along and, say, file a petition or statement that [Kane] was prohibited from serving as attorney general because the constitution prohibits her from doing so, Chief Justice Saylor’s answer to that is no.”

But Castille said that while Saylor was definitive, the issue calls for further argument.

“If you say it’s a political question, that’s obviously throwing it into the laps of the legislature and the executive branch,” Castille said. “It’s a state of confusion right now and it’s just going to linger on and on.”

While the suspension of an attorney general’s law license is not “constitutionally disabling,” Saylor said, it does keep Kane from functioning as an attorney and fulfilling duties like executing documents or signing indictments.

That could indirectly lead to further action against her, Castille said; for example, if there is a claim that Kane is practicing law by fulfilling certain duties of her office, thereby violating the suspension order.

Hare agreed that although Saylor’s words indicate the court does not plan to take any further action unless formally prompted, it is unlikely this will be the court’s last word on the matter.

“I think ultimately the court will be forced to revisit thisissue. It’s hard to predict which way this thing will go. There are so many moving parts,” Hare said.

Lizzy McLellancan be contacted at 215-557-2493 or lmclellan@alm.com. Follow her on Twitter @LMCLELLAN.
Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI.

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