District Attorney Impeachment; Constitutionality and Justiciability
Krasner v. Ward, 2023 WL 164777 (Pa. Cmwlth.) (unreported), direct appeal, appeal dockets 2 – 4 EAP 2023
This case arises from the Pennsylvania House of Representatives’ attempt to impeach Philadelphia District Attorney Larry Krasner (DA Krasner or District Attorney). Commonwealth Court summarized the relevant background as follows:
On November 16, 2022, the Pennsylvania House of Representatives (House) passed House Resolution 240 (HR 240), which contained amended articles of impeachment (Amended Articles) against District Attorney, by a vote of 107 to 85. The Amended Articles provide the following bases for impeaching District Attorney:
Article I: Misbehavior in Office In the Nature of Dereliction of Duty and Refusal to Enforce the Law
Article II: Misbehavior in Office In the Nature of Obstruction of House Select Committee Investigation
Article III: Misbehavior in Office In the Nature of Violation of the Rules of Professional Conduct and Code of Judicial Conduct; specifically Rule 3.3 Candor Toward the Tribunal, Rule 8.4 Professional Misconduct, and Canon 2 of the Code of Judicial Conduct Impropriety and Appearance of Impropriety in the Matter of Robert Wharton v. Donald T. Vaughn
Article IV: Misbehavior in Office In the Nature of Violation of the Rules of Professional Conduct; specifically Rule 3.3 Candor Toward the Tribunal, Rule 8.4 Professional Misconduct, and Canon 2 of the Code of Judicial Conduct Impropriety and Appearance of Impropriety in the Matter of Commonwealth v. Pownall
Article V: Misbehavior in Office In the Nature of Violation of the Rules of Professional Conduct and Code of Judicial Conduct; specifically Rule 3.3 Candor to Tribunal, Rule 8.4 Professional Misconduct, and Canon 2 of the Code of Judicial Conduct Impropriety and Appearance of Impropriety in the matter In re: Conflicts of Interest of Philadelphia District Attorney’s Office
Article VI: Misbehavior in Office in Nature of Violation of Victims [sic] Rights
Article VII: Misbehavior in Office in the Nature of Violation of the Constitution of Pennsylvania By Usurpation of the Legislative Function
PFR, Ex. C. On November 29, 2022, the Pennsylvania State Senate (Senate) passed Senate Resolution 386 (SR 386), which established “special rules of practice and procedure in the Senate when sitting on impeachment trials[,]” and Senate Resolution 387 (SR 387), which directed the House to “exhibit” the Amended Articles through its designated impeachment managers before the Senate on November 30, 2022.
On November 30, 2022, the Senate enacted Senate Resolution 388 (SR 388), which ordered that a writ of impeachment summons be issued to District Attorney and set the start date of his impeachment trial as January 18, 2023. The 206th General Assembly, which was responsible for passing all of the aforementioned resolutions, terminated at 11:59 p.m. on November 30, 2022, and was replaced by the 207th General Assembly. See Pa. Const. art. II, §§ 2-4. The Senate’s summons was then served upon District Attorney on December 1, 2022.
Slip op. at 2-4. DA Krasner petitioned Commonwealth Court for review, requesting the court declare the pending impeachment proceedings to be unconstitutional and unlawful. As Commonwealth Court summarized:
In Count I, District Attorney argues that the Amended Articles, as a pending matter, were rendered void upon the termination of the 206th General Assembly on November 30, 2022, and did not carry over to the 207th General Assembly. PFR ¶¶41-50. In Count II, he claims that he cannot be impeached and removed by the General Assembly, because the Pennsylvania Constitution does not give the General Assembly power to impeach local elected officials, as well as because the power to do so has been delegated to the City of Philadelphia’s government. Id. ¶¶52-61. Finally, in Count III, he argues that the Amended Articles are invalid and do not provide a constitutionally valid basis for his impeachment, as none of them assert viable claims that District Attorney engaged in “any misbehavior in office.” Id. ¶¶63-79. Accordingly, District Attorney has asked this Court to:
(A) Declare that the Amended Articles and related legislative business, including [SR] 386, 387, and 388, became null and void on November 30, 2022, upon the adjournment sine die of the 206th General Assembly legislative session.
(B) Declare that [a]rticle VI, [s]ection 6 of the Pennsylvania Constitution does not authorize impeachment of … [District Attorney] by the General Assembly.
(C) Declare that the Amended Articles against … [District Attorney] do not allege conduct that constitutes “any misbehavior in office” within the meaning of [a]rticle VI, [s]ection 6 of the Pennsylvania Constitution.
(D) Declare that [ ] Respondents have no authority to take up the Amended Articles and any such efforts would be unlawful.
(E) Declare that any effort by [ ] Respondents, House[,] or Senate to take up the Amended Articles or related legislation, including [SR] 386, 387, or 388, is unlawful.
(F) Grant such other relief as is just and proper.
PFR, Prayer for Relief.
Slip op. at 4-5 (footnote omitted). DA Krasner filed an Application for Summary Relief for each of the three counts in the PFR. The Impeachment Managers and Interim President filed preliminary objections, arguing that:
First, Counts I and III present non-justiciable political questions, as it is exclusively within the General Assembly’s purview to decide whether impeachment proceedings can continue into a new iteration of the General Assembly, as well as whether District Attorney’s behavior constitutes “any misbehavior in office.” Impeachment Managers’ Br. in Support of Prelim. Objs. at 10-17. Second, District Attorney lacks standing to challenge the impeachment proceedings, as he is not aggrieved by the impeachment proceedings, which have yet to take place. Id. at 18-20. Finally, Counts II and III are not yet ripe for judicial review, as District Attorney is not entitled to preemptive judicial determinations regarding whether someone in his elected office is subject to impeachment and removal by the General Assembly, or whether the impeachment charges against him are sufficient. Id. at 20-25. As for Interim President, she argues in her Cross-Application that this Court lacks subject matter jurisdiction because District Attorney has failed to join the Senate and the Senate Impeachment Committee, both of which Interim President alleges are indispensable parties, as well as because District Attorney has allegedly failed to state claims that are legally sufficient and ripe for judicial review. Interim President’s Br. at 16-82.
Slip op. at 6.
Commonwealth Court, en banc, granted Krasner’s request for a declaration that the Articles of Impeachment are unconstitutional. In its majority opinion, Commonwealth Court concluded that the Amended Articles of Impeachment against DA Krasner “cannot serve as the basis for a constitutionally sound impeachment trial.” Slip op. at 44. Specifically, Commonwealth Court reasoned that the House’s charge against Krasner of “misbehavior in office” was not supported by claims that his decisions on how to run the District Attorney’s Office were the result of an improper or corrupt motive. Rather, the majority opined, “the House simply appears not to approve of the way District Attorney has chosen to run his office” and that “such disagreements, standing alone, are not enough to create a constitutionally sound basis for impeaching and removing District Attorney.” Slip op. at 39. The court further found that the charges that DA Krasner obstructed an investigation of his office by a House committee and failed to enforce state laws also did not meet the constitutional standard of misbehavior in office, explaining that DA Krasner: “as Philadelphia’s chief law enforcement officer, has broad discretion regarding his policy decisions and prosecution choices.” Slip op. at 43.
In addition, Commonwealth Court rejected the legislative members’ justiciability arguments on the basis that the General Assembly does not have the authority to pursue Rules of Professional Conduct and Code of Judicial Conduct violations, as those allegations encroach upon the judicial branch’s sole authority to regulate the practice of law.
In a concurring opinion, Judge Wojcik agreed that the professional misconduct charges were within the court’s authority. However, while Judge Wojcik “joined the position of the lead opinion when the matter was presented to this Court on an expedited basis,” “upon further reflection,” Judge Wojcik would hold that Commonwealth Court lacks jurisdiction to decide the constitutionality of the four articles of impeachment charging DA Krasner with misbehavior in office. Slip op. at MHW-4. Judge Wojcik explained:
…I now firmly believe that the constitutional authority to issue and consider Impeachment Articles I, II, VI, and VII of the Amended House Resolution No. 240 has been solely and exclusively vested in the House pursuant to article VI, section 4, and trial on these Impeachment Articles has been solely and exclusively vested in the Pennsylvania Senate pursuant to article VI, sections 5 and 6 of the Pennsylvania Constitution. Thus, Petitioner’s claims with respect to these Impeachment Articles should present nonjusticiable political questions that must ultimately be resolved by the General Assembly pursuant to its constitutional authority.
Slip op. at MHW-4 – MHW-5.
Judge McCullough dissented on the basis that the court lacked subject matter jurisdiction over DA Krasner’s claims due to DA Krasner’s failure to join the Senate and the Senate Impeachment Committee as indispensable parties. Judge McCullough further opined that “even assuming, arguendo, this Court had jurisdiction, the Majority’s decision nevertheless has hurriedly and needlessly plunged this Court into a wash of nonjusticiable political questions over which we currently have no decision-making authority. In so doing, the Majority transgresses longstanding separation of powers principles.” Slip op. at PAM-2.
The Impeachment Managers, Representative Timothy Bonner and Representative Craig Williams, appealed the Commonwealth Court’s decision to the Supreme Court of Pennsylvania.
For more information, contact Kevin McKeon or Dennis Whitaker.