Kathleen Kane's Handpicked No. 2 Contradicts Her Once Again

By Wallace McKelvey
PennLive
June 13, 2016

http://www.pennlive.com/politics/index.ssf/2016/06/kathleen_kane_bruce_castor_sex.html

In one of her few recent public appearances, Attorney General Kathleen Kane pleaded with lawmakers Monday to lift the statute of limitations on child sex-abuse charges and expand victims' ability to file civil lawsuits.

"I'm begging you to pass that bill immediately," Kane told a Senate panel considering House Bill 1947.

But Kane's advocacy came with an important asterisk.

"I'm not here to give a legal opinion as to the constitutionality of the bill," she said, as preface to her testimony. With her law license suspended in the wake of criminal charges stemming from the grand jury leak investigation, the attorney general is barred from practicing law.

That set up the latest public conflict between Kane and her office.

Bruce L. Castor Jr., a longtime prosecutor and Kane's handpicked second-in-command, deflated Kane's impassioned testimony with his own reading of state law. The bill's civil litigation element is unconstitutional, he said.

"Without doubt, House Bill 1947 represents a laudable attempt to provide a remedy for a well-identified social problem," the former Montgomery County district attorney testified. "However righteous the policy goals behind (the bill), the General Assembly in its zeal cannot overrule a state constitutional right."

That testimony contradicted statements or legal interpretations made by Kane, several prosecutors from her office and the report of a grand jury that investigated child sex abuse allegations inside the Altoona-Johnstown Diocese.

Bruce Castor, former district attorney for Montgomery County, was named in March as Kane's new second-in-command.

It also marks the latest dissonant chord in a relationship that many thought would be all too harmonious when Kane appointed Castor to the newly created "solicitor general" post.

"I haven't yet," Castor said, when asked if he's gotten any feedback from Kane about his contradictory opinion on HB1947.

"But I might get it when I get across the street," he added, with a deep breath, as he exited the Capitol on his way to Kane's Strawberry Square offices.

Earlier this year, Castor stripped Kane's special email prosecutor Doug Gansler of the prosecutorial powers Kane granted him, a compromise of sorts between the priorities of Kane and her top deputies. Then, he abandoned an appeal in the case of three Penn State University officials charged with trying to conceal Jerry Sandusky's crimes over the objections of the prosecutors working that case.

When the office announced the release of an interim report from Gansler's team last month, Castor canceled the release and publicly criticized the report for not being comprehensive and containing too much redacted material. He later walked those comments back, but said he was expecting more information from Gansler that would be included in the first release as an "addendum."

You have to give the opinion that you think the law warrants, not what you hope it says." Bruce Castor

On Monday, Castor said he has not yet received the addendum materials and doubts the report will be released this week. Gansler did not immediately respond to a request for comment.

Castor said the nature of his position means that conflicts over legal decisions are inevitable.

"One of the problems that we have in the Attorney General's Office is that I'm not supposed to discuss such things with her," he said, after his testimony, "so the likelihood of us coming up with differing conclusions is enhanced because I'm not supposed to be discussing that."

Kane, who was the first to testify Monday, seemed to anticipate that other experts — although perhaps not her own second-in-command — would contradict her opinion on the statute of limitations bill.

"I really stress that we need to find solutions rather than reiterating problems," she said. "I know you have some wonderful, scholarly people appearing here. If they do find a problem with the remedies clause, then I ask you to ask them for a solution as well, so we can go forward."

Castor said he arrived at his conclusions based on a plain reading of case law about retroactive litigation and prosecutions. The danger, he said, is that the state Supreme Court could invalidate the entire law if one component is found to violate the state constitution.

"We all take an oath to uphold the constitution . . . and the (Senate) committee and the attorney general are among those people," he said. "If we were to disregard that and the General Assembly pass a statute that is ultimately part unconstitutional, then a series of litigants would be given false hope until years down the line (when) a court, applying its own precedent, would rule as I opined."

Attorney General Kathleen Kane, in a file photo.

He stressed, however, that any legal interpretation is subjective. By virtue of Kane's delegation of her legal authority to him, Castor said, he's obligated to provide it when asked.

"Circumstances have presented themselves where I am the state's top legal officer," Castor said, "and I gave the committee what I thought was my interpretation of the statutes."

He added: "When you're asked by the General Assembly for an opinion, you have to give the opinion that you think the law warrants, not what you hope it says."

Contact: WMckelvey@pennlive.com