The state office that investigates misconduct by lawyers argued Wednesday that Pennsylvania Attorney General Kathleen Kane waited too long to object to Justice Michael Eakin's participation with four other justices in suspending her law license last fall.
The Office of Disciplinary Counsel argued in an 18-page response that the justices should deny Kane's request to lift her suspension over Eakin's role, and noted the decision by the five justices at the time was unanimous.
"Justice Eakin neither cast the deciding vote nor authored the final order," wrote Disciplinary Counsel Harriet Brumberg. "To the extent that this court finds that Justice Eakin should not have participated in the consideration of (the) petition, Justice Eakin's participation was 'mere surplusage.'"
Kane's lawyers have argued that Eakin, a Republican, should have recused himself because of his involvement in an email scandal involving government officials that first became public last year. Kane's lawyer, Jim Mundy, said Wednesday she only has to demonstrate the appearance of impropriety in Eakin's vote that put her on temporary, indefinite suspension.
"This doesn't look right," Mundy said. "I think we met that standard."
The high court voted in September to suspend Kane, six weeks after she was charged with perjury and other criminal violations for allegedly leaking secret grand jury material and lying about it under oath. That case, in suburban Philadelphia, is pending.
Shortly afterward, Kane, a Democrat, submitted hundreds of emails to the courts and ethics agencies that she said showed Eakin had used a state computer to exchange racially offensive messages and misogynistic pornography with friends using a private email account he maintained under a pseudonym.
That disclosure prompted ethics charges against Eakin before the Court of Judicial Discipline and his suspension from the bench. A pretrial hearing in Eakin's case is scheduled for Thursday in Harrisburg.
Defendants must make timely requests if they want to seek a judge's recusal, Brumberg wrote.
"Where the jurist's possible bias is known to a party and that party fails to promptly alert the jurist of that fact, the objection is waived and the party may not offer the objection as a basis to invalidate the judgment," Brumberg told the court.
Brumberg said Kane knew about Eakin's possible bias at least since late 2014, when he was first linked to the email scandal. By the time of Kane's Aug. 6 arrest, he had long been cleared by the Judicial Conduct Board.
"Her belated assertion of bias is lacking in sincerity," Brumberg said.
Mundy countered that Eakin had an obligation to raise the issue.
"It's the justice himself who should know his bias and recuse himself," Mundy said. "We've said, 'you've had the accuser being tried by the accused.'"
In similar cases, the state Supreme Court has made its decision based on the court filing, Mundy said, but the justices could also order the parties to participate in oral argument before ruling on Kane's law license.
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Kane has said she plans to seek a second four-year term in the November election. The state Senate is considering whether to remove her from office over concerns that she can't do the job properly without a valid law license. Kane has insisted that the license suspension has had little effect on her day-to-day management of the office.