Kathleen Kane as an involuntary Kim Davis and the role of criminal cartels in democratic process

Ok, so millions of voters in the State of Pennsylvania voted to put in office the State Attorney General, Kathleen Kane.

Then, Pennsylvania Supreme Court, consisting exclusively of licensed attorneys, and based on behind-the-doors proceedings conducted by a cartel of attorney-dominated disciplinary committee appointed by that same court, "temporarily" suspended Kathleen Kane's law license, with a delay of suspension for 30 days -

• at the time when Kathleen Kane was very publicly fighting corruption in the ranks of state prosecutors, the ultimate "old boys' club" and the ultimate judicial career path, when majority of judges (in all states) come from prosecutors;
• at the time when Kathleen Kane was indicted under the circumstances suggesting retaliation against her by the old boys club for doing her job and attempting to eradicate prosecutorial misconduct;
• at the time when Kathleen Kane 
• publicly announced she is innocent of the charges, 
• continues to fight the charges and 
• refused to resign as the State Attorney General
• at the time when the U.S. Supreme Court has ruled, as of February this year, that licensee-run disciplinary boards are run in violation of federal antitrust laws, which means that such operations of disciplinary proceedings are the same as operation of criminal cartels, and Pennsylvania Supreme Court since then defied that order and made no changes in the attorney-dominated disciplinary committees;
• at the time when Kathleen Kane argued to that same court that suspension of her law license will circumvent specific state constitutional provisions for her removal from office;
• at the time when Pennsylvania public engaged in an unprecedented campaign, signing a petition not to suspend Kathleen Kane's law license.

Now, considering that Kathleen Kane was recently asked, together with other State AGs, by a consumer union and its representative, a former federal antitrust prosecutor, to see that attorney disciplinary proceedings comply with the new U.S. Supreme Court decision of February 25, 2015, it is interesting that the disciplinary committee that was supposed to be disbanded or reformed in compliance with that decision that has won the race to disband her as their prosecutor before she as the prosecutor disbanded the disciplinary committee, following federal law.

Now, Kathleen Kane is in an "involuntary Kim Davis" kind of situation.

Kim Davis willfully refuses to do her duties, and instead, her deputies have to discharge them, while Kim Davis keeps drawing her salary for refusing to do her duties.

Kathleen Kane, after her license was suspended (she's got a 30-day stay of suspension) will be able to do only those duties of her office (if such duties still remain) that do not involve the practice of law.

And, the courageous woman continues to refuse to resign from the office for which millions of voters in Pennsylvania have chosen her despite the unprecedented pressure from the old boys' club.

Imagine, an Attorney General cannot practice law.

An easy way for the subjects of potential prosecution to eliminate their own prosecutor, isn't it?

So, while Kathleen Kane refused to resign, the old boys' club devised a way to remove her from office through the disciplinary proceedings, which does not involve the voters, or their elected representatives, and which actually FORCE the hand of the voters' public representatives, because the legislature might have no choice but remove Kathleen Kane from office (or change the law requiring that State Attorney General must be a "member of the bar in good standing").

Because, if the "bar" is run as a criminal cartel, and members of the bar in good standing are removed from that good standing because they want to end the criminal cartel, following their duties, then it is the criminal cartel's actions and not of those who want to eliminate it, should be addressed by the government.

Which brings us to the next issues.

In New York, multiple witnesses in the Statewide Commission for Attorney Discipline raised the issue that New York is second only to Texas in the number of wrongful convictions, but prosecutors responsible for those thousands of convictions were never disciplined (and, I am sure, some of them are now judges, because the DA's office is a sure career part to become a judge in New York, as it is in other states and at the federal level).

New York Legislature is considering Bill S24 to institute a Commission on Prosecutorial Conduct.

Now, in view of what happened to Kathleen Kane, let us, as the sovereign in this country, the People, consider the implications of having laws:

• that require that certain public officials must be licensed attorneys;
• giving immunity to such public officials from prosecution by members of the public through civil rights lawsuits;
• having no effective mechanisms of discipline of those public officials for their real misconduct in office

On the one hand, it is grossly unfair - and unconstitutional - to have an elected public official who is actually doing her job and fighting misconduct and corruption in the ranks of the organization she is heading to be removed from office not by the voters, not by the legislature, not following constitutional procedures of impeachment, but by the back-room dealings of a  criminal cartel that was faster to remove her than she removed them.

On the other hand, what remedies do we have against rampant prosecutorial misconduct when it occurs?

Remedies are suggested by:

• Kathleen Kane's conduct in pursuing prosecutorial misconduct, 
• the U.S. Supreme Court decision of February 25, 2015 and 
• a recently-decided 2nd Circuit case refusing to grant immunity to prosecutors for presentation of fabricated evidence to the Grand Jury.

FIRST PROPOSAL.

The State Attorney General must be charged ONLY with a statutory duty to PROSECUTE misconduct in the government, not to DEFEND it against plaintiffs in civil rights action, which is what is happening every day in federal courts.  If you think about it, the Supreme Court eliminated the law license of ITS OWN COUNSEL IN FEDERAL CIVIL RIGHTS LITIGATION - as did the disciplinary committee.

It is clearly visible that the two hats worn by State Attorneys General, defending the same misconduct  of public officials in federal civil rights actions as they are supposed to prosecute, are completely incompatible.

The government can hire court representatives to represent them in a civil rights lawsuit, as do other litigants, and those court representatives should not be the government's own prosecutors, because such a situation constitutes an ongoing bribing situation.

When the government/client of a State Attorney General is also holding her license and livelihood in their hands, as it is with disciplinary committees and the licensing courts, the conflict of interest gets even worse.

Now the State Attorney General not only has to pick and choose 

• whether to defend or prosecute her own clients for the same conduct;
• whether to violate the attorney-client privilege rule by prosecuting her own clients for what may be covered under that privilege;
• but also to be in fear of losing her own law license, reputation and livelihood if he/she dares to prosecute instead of defend misconduct in the government - because her livelihood and reputation can be stripped by her own client, no malpractice lawsuits or arbitration necessary

Such conflicts of interest and such bases for fear in the State Attorneys General for their own law licenses must be eliminated.

How?

SECOND PROPOSAL

Laws must be abolished that expose elected public officials to arbitrary removal from office by interest groups without any input from the public.

Laws must be abolished that require that

• an Attorney General;
• a judge

any other public official - absolutely must be a "member of the bar in good standing".

The requirement that elected public officials must have law licenses (where licensing is regulated secretly by private interests) is an extraordinary requirement that hurts the democracy in this country, as Kathleen Kane's license suspension just demonstrated.

But, what to do with discipline of public officials?

THIRD PROPOSAL

Very easy.

1. Make the terms in office short.  Do not allow people to become entrenched and form cliques.
2. Create financial disincentives for public service, so that incompetents who cannot survive in private practice do not go into the government to get a cushy pension with benefits, as it happens now.
3. Make public service similar to a jury duty - a duty, rotational, short and not compensated, the than for travel and lunch expenses.  It will eliminate a lot of corruption in the government, if not its major part.
4. Make prosecution and adjudication blind - so that prosecutors and judges bring and decide cases, without having an opportunity to know identity of the litigants.  There are technological mechanisms in our modern society to make that happen. 
5. Establish a direct right of citizens to convene and address grand juries to address official misconduct through criminal proceedings.
6. Eliminate immunities from civil lawsuits for fraudulent and malicious conduct of public officials in office.

You may disagree with my proposals.

But, Kathleen Kane's case shows that, at the very least, changes must be considered and made in, at the same time, ensuring effective mechanisms of accountability of public officials for misconduct in office and for removal of conditions that a public official must satisfy, other than his or her constitutional oath of office, to be able to serve the public.  

And my proposals are simply my contribution to the much-needed public discussion of what changes need to be done to preserve this country as a democracy.