Whether the state attorney general is able to delegate the defense of Pennsylvania's ban on gay marriage to the Office of General Counsel hinges on an interpretation of the Commonwealth Attorneys Act, lawyers familiar with government practice have told Pennsylvania Law Weekly.
The recent announcement from Attorney General Kathleen Kane that she would not defend the state's 1996 law, which mirrors the federal Defense of Marriage Act's definition of marriage as being between one man and one woman, drew criticism from Republican lawmakers and kicked up a dispute between her office and the OGC. Kane was among several defendants named in a suit filed earlier by the American Civil Liberties Union on behalf of several Pennsylvania couples who are unable to wed.
Kane, who took office earlier this year, is the first Democrat to be elected to the post and has taken an opposing stance to Republican Governor Tom Corbett on several politically charged issues.
Both Kane and James Schultz, the state's general counsel, who was appointed by Corbett, cited the same state law to support their opposite views of her duty.
Schultz said in a short statement issued after Kane's announcement that she was acting contrary to her duty under the Commonwealth Attorneys Act by not defending a law of the state. Kane cited the same act when she made her announcement, saying that it gave her the authority to delegate the defense to the OGC.
One former attorney general agreed with Schultz, saying Kane is required to defend the statute under the act.
"I respectfully disagree with AG Kane's statement that she has the discretion to unilaterally decline to uphold and defend the constitutionality of a lawfully enacted statute in Pennsylvania," said Gerald J. Pappert, a Republican who served as attorney general of Pennsylvania for about a year in 2004. "Section 204(a)(3) of the Commonwealth Attorneys Act imposes upon the attorney general the mandatory duty to defend the constitutionality of all statutes in the absence of a controlling decision by a court of competent jurisdiction."
He added, referring to the U.S. Supreme Court's recent decision striking down the federal DOMA: "The Supreme Court decision in United States v. Windsor does not control the issue of the constitutionality or unconstitutionality of a Pennsylvania statute and, in fact, the attorney general has not contended otherwise."
However, Barbara Adams, who served as general counsel for about five years under former Democratic Governor Edward G. Rendell, sees it as an open question.
The act, in Section 204(a)(3), says "it shall be the duty of the attorney general to uphold and defend the constitutionality of all statutes so as to prevent their suspension or abrogation in the absence of a controlling decision by a court of competent jurisdiction."
So, there's an exception to the attorney general's obligation to defend the laws of the state if a proper court has held that a given statute is unconstitutional, as Adams sees it.
Adams framed this question: Is Kane allowed to read that exception broadly enough to rely on a U.S. Supreme Court decision?
When the high court ruled that DOMA is unconstitutional, it wasn't ruling specifically on Pennsylvania's reflection of the federal law, but it was ruling on a law that is materially the same.
But, Adams said, "I doubt if anybody wants a real answer. … That is all just a political fracas."
Although the OGC is expected to respond soon, as of press time, Schultz hadn't done so. If he and Kane continue to contest each other, it would be up to the state Supreme Court to decide whether the U.S. Supreme Court's decision on DOMA would excuse Kane from her obligation to defend Pennsylvania's law.
The 1980 Commonwealth Attorneys Act, which created the OGC and made the Attorney General's Office an independent department, governs the relationship between the state's two major legal arms. Pennsylvania is fairly unique in having a law that lays out that relationship, Adams said.
Asked why the OGC, which was constructed to be the legal adviser to the governor, wouldn't embrace the opportunity to defend a law that the governor and his party supports, Marcel Groen, a lawyer at Fox Rothschild who is involved with Democratic politics, said they're "probably trying to score some political points" by trying to muddy Kane's image.
"It's easier to yell when you don't have to put anything on the line," Groen said, adding that the Republicans' criticism of Kane's stance is nothing short of political maneuvering. "I don't think there's anything more to it."
Though Republicans have accused Kane of political posturing, one leading political observer noted that Kane was in a bind politically.
"I don't think, politically, she had much of a choice," said G. Terry Madonna, the director of the Center for Politics and Public Affairs at Franklin & Marshall College. "If she had chosen to push ahead and defend the statute, she would have had serious problems with the Democrats."
Madonna noted Kane's office is defending another law that is controversial with Democratic leaders: Pennsylvania's voter ID law. But Madonna also said a majority of Pennsylvania voters, based on polls, support the voter ID law.
"She's got a twin problem on her hands," Madonna said. "She would have had to defend two laws that Democratic leaders don't support."
Others viewed the situation as black and white, saying that Kane cannot pick and choose which laws her office will defend and which it will not.
"There are any number of Pennsylvania statutes with which we may personally disagree. Nevertheless, we do not ignore them to suit our political preference," Republican state Representative Jerry Stern wrote in a letter to Kane signed by two-dozen members of the House Republican caucus.
Kane, on the website for the attorney general of Pennsylvania, offers a small question-and-answer to address her critics.
First, Kane distinguishes the voter ID law and DOMA because the former, on its face, is constitutional.
"DOMA is different," Kane said on the website. "DOMA is wholly unconstitutional. It cannot be fixed."
Regarding DOMA, and any duty she has to defend it, Kane quotes language from the Commonwealth Attorneys Act that says the Pennsylvania attorney general may "upon determining that it is more efficient or otherwise is in the best interest of the commonwealth, authorize the general counsel or the counsel for an independent agency to initiate, conduct or defend any particular litigation or category of litigation in his stead."
Some attorneys, however, have said the above language, from Section 204(c) of the act, pertains more to "garden-variety litigation" that comes across the attorney general's desk, not statutes the attorney general is named to defend.
More fitting to outline Kane's duties pertaining to the DOMA lawsuit is Section 204(a)(3).
That aside, attorneys were surprised by Kane's method in not reaching out and making a deal with the OGC before refusing to defend the statute.
Stephen C. MacNett, a Conrad O'Brien attorney and former general counsel for the Republican caucus of the Pennsylvania Senate, said the Commonwealth Attorneys Act statute does provide a mechanism to pass off some litigation to the OGC, but added "that was not intended to be a purely discretionary mechanism."
"She essentially formally withdrew the OAG from defending the statute," MacNett said. "That was surprising."
"Even more surprising was that she didn't work out a deal with them," he added, referring to the OGC.
Kane's office declined to comment for this story through a spokesman.
The political landscape in Pennsylvania distinguishes it from the circumstances in California that led to the U.S. Supreme Court punting the Proposition 8 lawsuit on the grounds that the people defending that state's ban on gay marriage didn't have standing. Defenders of that law took up the mantle after the Democratic attorney general and Democratic governor declined to defend the ban when it was challenged.
Corbett is expected to defend Pennsylvania's ban.