04/23/2808 86:21 7177853699 PATRIOT-NEWS CAPITOL PAGE a1 November 6, 2015 The Special Commitine on Senate Addiess Senator John R Gener, Chairiran Senate Box 20302 Main Capitol Buildin Harrisburg, Pa, 17211-3027 Dear Senator Gortlant: 1 am in receipt of your corr#sponcience dated October 29, 2016 re juesting interoffice documents and communications as well as confidential fiinys Submille d to the Office of viserpinary Couns. amongel:ither kao, You have requested these mw flerials pursuant to designation as Cliaiiman of th: Special Committee on Senate Address « “pursue possible address under Arli: |: 6, Section ? of the Penngylvania Constitution.” Please allow this I:tier to serve +s my formal response to the above reque' for information for use in a direct remavst or address. In order to address: sour request, wo ‘ust first determine your legal authe ily to make such a request pursuant > ° quest for “rect removal. To understand the proper fra yework by which an Atfomey General ry be remeved, we must consider the Pennsylvania (constitution and the long standing prec>ient of prior attempts for removal of civil officers purs tant to the relevant Articles of the Coneitution an the recults and reasoning of such. Despite the assertions of a deputy counsel ft ‘he Senate that there exists no precedent in this g'2at Commonwealth related to Direct Pass avel, there are ectuslly three documented cases. Thi: Senate Committee must consider the hiistory of Pentisylvania and follow the proper framework. \Vhat is done today will in essence aff:c’ the future of Pernsylvania and its citizens long after these decisions are made. Article 6, Section «, {Impeachmsnt and Direct Removal) of the Pennsyivai ia Constitution was adopted following "+ consfituticnal convention of 1872-73 and took effect in January of 1874, and consisted of fou sections:04/23/2808 86:21 7177853699 PATRIOT-NEWS CAPITOL PAGE 82 The Special Comm tise on Senate Address November 6, 2018 Page 2 of 6 “SECTION 1. Tris House of Representatives shall have the sole power of rpeaching.” “SECTION 2. /:ll impeachmants shall be tried by the Senate. Whe: sitting for that purpose the Sericiors shall be upon oath or affirmation. No person st all be convicted ‘without the conr:;ience of twsithirds of the members present.” "SECTION 3. The Govemor, zind all other civil officers under this Commo mwealth, shall be liable to impeac rent for any misdemeanor in office; but judgment in suc 1 cases shall not extend further thas to removal fram office, and disqualification to hold an office of nonor, trust or profit urd this Cor ionwealth; the party, whether convicted ¢ acquitted, shall nevertheless be lishle to indiciment, trial, judgment and punishment, accc ‘ing to law.” “SECTION 4, fl officers shell hold their offices only on the condition { 1at they behave themselves well shile in offre, and shall be removed on conviction ¢’ misbehavior in office, or any inistous crime. Appcinted officers may be removed at th + pleasure of the power by whicl ‘Iisy are appointed. Elected officers, other than Governor, Lieutenant Governor, merisers of the General Assembly, and judges of courts of record, shall be removed by th: SJovernor, tr reatonable cause, on the address of o-thirds of the senate” Of particular impoviciice in the present actions of this committee on Senate /Address is a focus on the applicability 2° Sections 3 and 4, as listed above. Section 3 reads “T! e Governor, and all other civil officer: under this Commonwealth, shall be liable e on Senate Address Novernber 6, 2015 Page 3 of 6 We must thereby Incl: to the nex! sentence for means of removal of an Atto ney General. That sentence directs ths! elected officers, in contrast, with the exception of hi ih ranking officials such 28 Governor. [eutenant Governor, members of the General Assem ily, and judges of courts of record, “sitll be removed by the Governor, for reasonable cause on the address of two-thirds of the senraia.” (Article 6, Section 7, previously section 4) The specific exclusic of the high ranking officials to this direct action of th: Governor did not contemplate an clocted Attomsy General, but surely would have incl ied euch in the categories of Gover 1:1, Lieutenant Governor, members of the General Asse nbly and judges of courts of record that «re specifieslly delinoated and treated separately. It 1 arguable as well that this provision led to alse contemplate that the Attorney General s an independent Commonwealth agony, not subject to the Governor's jurisdiction, thus a jain removing the position of Attorney Cieneral from the power of the Governor to effectively ti rminate his or her position, The record: from the 11579 convention support the present day incl ision of an elected Attorney General a: « member of the dalineated high ranking officials. ‘The clelegates discuss and prosetibe the rcess by wllich the Governor appoints the Attorney Ceneral in that the Governor “shall narnivate, and ky advice and consent of two-thirds of all tie members of the Senate, appoint 2 ‘iecretary of “ie Commonwealth and an Allomey Gene zl...” The specific mention of these tvi> obviously important positions in both appointment anc stature within the government is sure “ jelling a8 te the thought and intent of the framers wher contemplating the means for removal :fivil officers Therefore, with the «ilomey Gensal as-an elected official, ang no fonger sul ject to removal by the Governor, for re:tshable causie and upon two-thirds of the Senate, as w« Il that the Attorney General is @ high rer-ng official in line with the Governor, Lieutenant Govern st, members of the General Assembly «nl judges of courts, and as such is subject to the speci ic exclusion of the provisions relating 1 :lirect removal or address by the Governor. The proper means of removal for @ member of t= specified excluded offices, which included the Atton ey General when voters approved an avendment ‘a the Constitution by making the office an lected position, is by meens of impear:1 rent White the Constitutinr: is the supreme taw of the land and the Articles relate to Impeachment allow for the procer.s 2y which a present day Attorney General may be rerr ved from office, 1 will nonetheless dis-uss the improper use of Article 6, Section 7 by the Sen: te in their attempt to address alleged rrisconduct in office, Of historical signific:»n:s2 is an attempt by @ Pennsylvania Govemor in 4891 t invoke the Direct Removal clause of °° Constitution to remove an elected State Treasurer ai cl an elect Auditor General. Here, the ollise holders were accused, but not convicted, of taking nibes in excess of one million dollar: and failing to perform their duties in securing tht monies of the Commonwealth. nsiar to the present argument, counsel for both Treesurer and Auditor General objected ts ‘ihe jurisdiction of the Senate on the grounds that the Governor had no authority to institute charges and that "no officer could be removed for an im >eachable offense04/23/2808 86:21 7177853699 PATRIOT-NEWS CAPITOL PAGE ad The Special Comrr itise on Senate Address November 6, 2015 Page 4 of 6 without a previous cxnviction or upon an impeachment or indictment.” Sec Commentaries on the Constitution of |h: United States (Boston Book Company 1895) by Roger Foster. {tis also important to note tlia! the process by which the elected officials appoared be fore the committee was largely differet irom the provass employed with the creation of this Sp cial Committee on Senats Address, fre, the Govemor addressed the Senate by letter recuesting the action. Here, the Senate ajicears to intiated the process on its own acc id. Of additional importance is the fr-riation of a Joint Legislative Investigating Committee upon participation of both Houses bef:r: the Direct Removal Proceedings in the Senate. In the jsresent case, this Senate committee h25 not followed the framework that has gone unchallenge «since 1891. In adgition to the e:» vation of this committee previously discussed, itis ori cal to address the improper and premise formaticn of this committee and the proceedings, The letter sent by the Govemor in 18:< to the senate stated "I have awaited the resort to anc the exhaustion of the process of the ¢ tinal laws. Tho Auditor Generti ptly etates in his address to the Senate in 1891 “itis p cposed to virlually ‘ty me, in this fort «i proceeding, on criminal charges of alleged misclernors-in office, in direct violation of the lzw of the lend, without a fair trial by an impartial ju: y of my vicinage, but before a tribuital not bound by oath or affirmation, which is govemed by no legal ules of evidence, cnd which is essentially a political tribunal calle together by the Governor in a time of great political excitement, for the purpose of cor demning me, and this when the supr-n€ law of the land provides two certain, ample and ch erly constitutional methocls for removiiig me from offize if the truth of these charges can be prov mn against me.” Both the Auditor Ge ncral and the Ireasurer proctaimed that they were duly el cted by the voters ‘and neither had ben convicted cf a crime and had a constitutional right to 7 jury trial, as such right is afforded to ¢ | ilizens. It was also argued that the Governor had “no ithorty under the constitution and laws «this commonwealth" to seek direct removal. The Av Stor General went on to correctly state Ist the only means of praper removal were by impeacht rent, which begins in the House, or by -cinviction by a jury of his peers. Your predecessors in the Senate held by PROCLAMATION sent to the Go 1omor "Resolve That 2s the sald charges preferred by the Governor in manner afore iaid against said officers, are chavy:e. of mioclemeenor in office, for which said o'ficers could be proceeded againsi, both by imsizachrient and by indictment, and if cor victed thereof, in either of said ways. ould be removed; the Senate has no jurisdiction, under Section 4 of Article VI of the Gonsti in this proceeding, to inquire into, hear ard determine said charges of official misconduct, and to address the Governor asking for the removal of sald officers by re:is9 thereof, and thereby to deprive said officers of the right to trial by jury, guaranteed tc them unser Article 1, or to a trial in regular proceedings by impeachment in accordance with Sections 1,2, and 3, of Article VI of the Zonstitution.”04/23/2808 86:21 7177853699 PATRIOT-NEWS CAPITOL PAGE 85 The Special Committe on Senate: Address. November 6, 2015 Page 5 of 6 As stated above, an Attorney General , by Constitutional amendmont in “078 ie an elected officer, and a high inking member of gavernment who surely is impliedly in: luded (it should be noted that there ar-ir'2 specific exclusion either) in the exclusion articulated vn Article 6, Sex 7 as related to the: iovemor, Lieutenant Govemor, members of the Genial Assemble and judges of the courts «f record who are excluded from the ability of the Gove mor or the Senate to be terminated ur.2" direct remval or address. Nonetheless, | have addre ssed this Senate's improper use of thi: ection to ardress alleged misconduct and will now ad lress the improper use, despite a lack -¢ urisdiction, in direst removal for competency to hold afi ce. Preserily, this Senile proposes 1» strip me of my duly elected position and s iperimpose the will of the voters based unon an argument that a temporary suspension of a lice 1se to practice law allows them author y for direct removal, 1 will point out that the license su spension was also imposed without the basis of = conviction and without the opportunity for a hearing to determinate the tru: of the matters asserted. This Senate’s reliance upon this administrative procooding does 1‘ relieve th:m of their constitutional duty to follow lie Articles of the Pennsylvania Consiit.tion related to proper removal of an elected official and the historical significance of the pccedent leng set in this Commonwealth. It is clea’ that this Senate committee is subverting the process of impeachment and/or trial by jury an‘| attempting direct removal based upoir «in adminis'-ative action that largely relied upon news| eper articles, with no rules of eviden= imposed, n¢ an allegation of 2 crime to create in impressionable argument for incom):elency to hol! office as means for removal. The actual ¢ fect of this senate action is to circumv:r: the proper procedure and deprive the citizens, and ti « office holder, of the constitutional gu:srantees adored by voters, Just as this Senate committee has no jurisdiction or authority for direc removal for the atorestated reasons. ‘12 application of the direct removal for incompetency ther than senility, ‘mental incapacity « shysical incapacity to hold office, fails. Again, there ar two more known cases in which direct rsmoval was sought. In Commentaries vr the Consittution (page 666), Roger Foster wntes “The Senate of Pennsylvania has a se addressed! the Governor for the removal of Edward F wan, high sheriff of Philadelphia, and ge John M. Kirkpatrick of Pittsburgh —the later in 188! , both for physical and mental ineapaciy" Once again, the plain meaning of the word “compe iency” was at the time, senile There is no evidencs -o my knowledge that | have become senile or mente ty incompetent to hold office. It is aki> true that | co not personally engage in the practice cf law as Attorney General, to such a °sisee in the normal course of duties that the public sal sly is in Jeopardy. Quite the opposite The policies cf my zciministration and the decisions as te ‘where and whon resources of budget «1 man povrer are placed have made the children of thi: Commonwealth 800% safer from chili swedators. \With a 30% increase in drug arrest, the neig iborhoods of your constituents are seie” as well, Thes® are just two examples of the 12sord of my job performance,04/23/2808 86:21 7177853699 PATRIOT-NEWS CAPITOL PAGE 86 Reneniy wenden thee Hermvuyieunite GuriotuuUlT GHnU Le TONG, ve an) AWwIney teneral By Means other than im wachment, after a steindiog prevent [° conviction, Thank you for your =t-antion to t Sincerely, foes mS pjene_ KATHLEET |'6 KANE Attorney G sneral KGKlima Ce: Honorable Jriseph B. Scarnati, Ill, President Pro Tempore Honorable Lise Baker Honorable G:r's Yaw Honorable Jt iit L. Schwenk Honorable Sai Wiley Honorable Ar! laywood Honorable M ive Turzai, Speaker of the House Governor To Moff, Gover or of Pennsylvania File (41620121 ¢ 26x) Works Cited Foster, Roger. Comielaries on ite Constitution of the United stated Histo txal and Juridical with Observations uri the Ordinary Provisions of State Constitutions and a Comparison with the Constitutions of ther Countries. Boston: The Boston Book Company, 189.1. Print