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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.” 1 Dec. 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 office Dec. 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, 2015 Dec. 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, 2015 Dee. 30. 2015 4:51PM Exhibit A 30, 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.