Dec. 30, 2015 4:50PM No 4484 PF. 2
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
ANTHONY SPINELLL JR, :
Petitioner :
v. : 184 MM 2015
KATHLEEN G. KANE, ATTORNEY GENERAL
‘OF THE COMMONWEALTH OF PENNSYLVANIA,
LAWRENCE M. CHERBA, EXECUTIVE DEPUTY
ATTORNEY GENERAL OF THE COMMONWEALTH
OF PENNSYLVANIA, LAURA A. DITKA, CHIEF
DEPUTY ATTORNEY GENERAL OF THE
COMMONWEALTH OF PENNSYLVANIA,
Respondents
COMMONWEALTH’S ANSWER TO KING’S BENCH PETITION AND/OR
‘APPLICATION FOR EXTRAORDINARY RELIEF
AND NOW, this 30" day of December, 2015, comes the Office of Attomey General of
the Commonwealth of Pennsylvania, by and through Gregory J. Simatic, Deputy Attomey
General, who respectfully requests this Court deny the Petitioner's Motion to Quash Appeal and
in support thereot avers as follows:
1, The instant matter is before this Court as a result of a King’s Bench Petition
and/or Application for Extraordinary Relief Sled by Anthony Spinelli, Jr. seeking to quash the
appeal filed by the Office of Attomey General in the Superior Court at 2051 MDA 2015. This
appeal challenged the Order of the Court of Common Pleas of Centre County that the Office of
Attorney General prosecrte Spinelli’s private criminal complaint against Gerald Sandusky.
2. On September 21, 2015, the Supreme Court of Pennsylvania ordered that
Attorney General Kathleen Kane’s license to, practice law in Pennsylvania be temporarily
suspended.! The Supreme Court specifically stated that the “order should not be constened as.
“A copy afthe September 21, 2015 Order of the Supreme Const of Penncylvania is attached hereto as “Exhibit A.”
1Dec. 30, 2015 4:51PM No, 4484 0°.
removing (Kathleen Kane] from elected office and is limited to the temporary suspension of her
license to practice law.” Pursuant to Rule 217(d)(1) of the Pennsylvania Rules of Disciplinary
Enforcement, the temporary suspension took effect 30 days after the Order on October 21, 2015.
3. On December 17, 2015, Petitioner filed a King’s Bench Petition and/or
Application for Extrsordinary Relief,
4, Petitioner claims that the OAG is without authority to pursue am appeal in the
Superior Court due to the Attomey General’s license suspension, In support of the claim,
‘Defendant alleges that the Constitution of the Commonwealth of Pennsylvania mandates that the
Attomey General maintain 4 license to practice law within the Commonwealth pursuant to
Article IV, Section 5. Article IV, Section 5, however, states that, “{a]o person shall be eligible to
the office of Attomey General except a member of the bar of the Supreme Court of
Pennsylvania.” ‘The Pennsylvania Constitution, thus, does not reference any requirement to
maintain a license to practice law within the Commonwealth, Rather, the Constitution requires
that the Attorney Geueral be a member of the bar of the Supreme Court of Pennsylvania,
‘As noted, the September 21, 2015 Order of the Supreme Court temporarily suspended the
Attorney Genetal’s license to practice law. The Order did not disbar the Attorney General and
she remains a niémber of the bar. Accordingly, there is no merit to Defendant’s claim that the
OAG is without authority to prosecute based on Article IV, Section 5 of the Pennsylvania
Constitution.
5. Further, the powers and duties of the Attomey General are’ set forth in the
Commonwealth Attomeys Act, 71 P'S. §§ 732-101 ef seq. Pursuant to § 732-205(4) of the Act,
whenever the Attomey General prosecutes a otiminal action, ot appeal, she may employ such
special deputies as are necessary for that purpose. Those deputies rmust take the oath of officeDec. 30, 2015 4:51PM Na, 4404 ?.
‘and be clothed with all the powers, and subject to all the liabilities imposed by law upon district
attorneys. 1d.
‘As noted, the Order of the Supreme Court which temporarily suspended Kathicen Kane's
license to practice law specifically stated that the Order did not remove Kane as the Attomey
General. Because she remains the Attomey General of Pennsylvania, Kathleen Kane maintains
the power and duties of the Attomey General which do not requizc her to practice lawy including
‘the power to employ deputies to prosconte criminal actions. There is no authority for the
proposition that the Attorney General’s designation of deputies to prosecute criminal actions for
Which jurisdiction of the OAG exists would be removed by virtue of the suspension of the
Attorney General’s license to practice law. Accordingly, there is no metit to any claim that the
Attomey General is without authority to employ deputies to prosecute criminal actions.
6 Additionally, there is no authority fo suggest that such designation of deputies to
prosecute criminal actions lapses or is revoked upon the temporary license suspension of the
Attomey General or other incapacitating event such as death, physical injury, mental illness, or
other inability to perform the duties of the office.
7, Further, due to the inability of the Attomey General to perform the legal duties of
the OAG as a result of the suspension of her license to practice law, by operation of law stich
duties are being performed by the First Deputy Attomey General, Bruce R. Beemer, as the
person next in authority pursuant to 71 P.S. § 762 (referring to Duty of person next in anthority
to act during vacancy or absence of incumbent). Specifically, § 762 provides the following:
Whenever, by reason of the absence, incapacity, or inability of the head or chief
of any of the departments of the State Government to perform the duties of hus
office, or whenever a vacancy in the office of the head or chicf of any of the
departments of the State Government oceuts, the duties of the head or chief of
such department shall be pesformed by the deputy, chief clerk, or other person
next in authority, until such disability is removed or the vacancy filled.Dec, 30. 2015 4:51PM No. 4404
‘Accordingly, any duty that the Attomey General is unable to perform due to the license
suspension is being Inwfully performed by the First Deputy Attorney General in accordance with
‘the Commonwealth Attomeys Act.Dec. 30. 2015 4:51PM No. 6604 0% 8
WHEREFORE, based on the foregoing, the Commonwealth respectfully requests that
this Honorable Court deny the King’s Bench Petition and/or Application for Extraordinary
Relief.
Respectfully submitted,
Deputy Attorney General
Criminal Law Division
Appeals & Legal Services Section
564 Forbes Avenue, 6" Floor
Pittsburgh, PA 15219
(412) 565-5339
gsimatic@attomeygeneral. gov
PALD. #201019
DATE: December 30, 2015Dec. 30, 2015 4:51PM No, 4404?
TIFICATE OF SERVICE
Thereby certify that I am this day serving this Commonwealth's Answer to King’s Bench
Petition and/or Application for Extraordinary Relief upon the persons and in the manner
indicated below.
Service via UPS overnight delivery.
Steven P. Passarello, Esq.
Law Office of Steven Passarello
616 Hileman Street
Altoona, PA 16602
Daniel J. Kiss, Esa.
‘Law Office of Steven Passarello
616 Hileman Street
Altoona, PA 16602
WZ
(Gregory J. Simatic
Deputy Attorney General
DATE:December 30, 2015Dee. 30. 2015 4:51PM
Exhibit A30,
2015 4:51PH . _, No. 4484?
IN THE SUPREME COURT OF PENNSYLVANIA
OFFICE OF DISCIPLINARY COUNSEL, : No. 2202 Disciplinary Docket No. 3
Petitioner :
Board File No, 3-15-6558,
v.
2 Aitormey Registration No. 69680
KATHLEEN GRANAHAN KANE, :
Respondent +: (Dauphin County)
QRDER
PER CURIAM:
AND NOW, ‘this 21% day of September, 2015, upon consideration cf the
responses to a Rule to Show Cause why Kathleen Granahan Kane should not be
placed on femporary suspension, the Rule is made absolute; Respondent Kathleen
Granahan Kane is placed on temporary suspension; and, to the extent applicable, she
shall comply with all the provisions of Pa.R.D.E. 217.
Respondent's rights to petition for dissolution or amendment of this order
pursuant (0 PaRD.E. 208()(4), and to request accalerated disposition of chores
underlying this order pursuant fo Pa,R.D.E, 208(f)(6), are specifically prosetved,
This order should not be construed as.
1oving Respondent from, elected office
and is limited to the temporary suspension of her license to practice law.