Commonwealth Court opinions on Krasner impeachment ‘create more questions than answers’

After finding the articles of impeachment against Philadelphia District Attorney Larry Krasner legally insufficient last month, a Commonwealth Court panel issued opinions showing it was evenly divided on a key question in the case. 

Judge Ellen Ceisler signed the Dec. 30 order granting Krasner’s request for a declaration that the articles of impeachment approved in the state House late last year are unconstitutional.

In a 45-page opinion issued Thursday, Ceisler explained the reasoning behind the decision. 

But one of the four judges who participated in the decision wrote a separate concurring opinion in which he said “upon further reflection” he no longer entirely agrees with the court’s finding that it has jurisdiction over the impeachment case.  

With Judge Patricia McCullough dissenting, Judge Michael Wojcik’s change of heart means that the court would likely not have the votes to enforce its order if Krasner asked it to do so, one legal expert said.

“If the [state] Senate wants to go ahead with a trial … they can,” Duquesne University law professor Bruce Ledewitz told the Capital-Star. Ledewitz is a regular commentary contributor to the Capital-Star.

Krasner on Friday, however, called the court’s order and opinion a victory for Philadelphia voters, who have twice elected him by broad margins as district attorney. 

“The order and opinion are also a victory for all of us in Pennsylvania and across the United States who believe in and cherish popular democracy,” Krasner said in a statement. “… Efforts to vacate elections you lose by engaging in recalls and bogus investigations and impeachments are authoritarian, un-democratic tactics that no American should accept.”

The state Senate on Wednesday voted to indefinitely postpone the impeachment trial, which had been scheduled to begin this week.

A spokesperson for Senate Republicans said Friday that the upper chamber was canceling its scheduled session days through Jan. 30, citing an inability to pass legislation with partisan gridlock in the state House that has prevented it from agreeing on rules. The statement also noted the period to appeal the Commonwealth Court order runs through Jan. 30.

“The Commonwealth Court opinions on the impeachment process create more questions than answers, leaving our proceedings on the matter in flux,” spokesperson Kate Flessner said. 

In her opinion, Ceisler wrote 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.

“Instead, the House simply appears not to approve of the way [Krasner] has chosen to run his office,” Ceisler wrote. “Regardless of whether any of the House’s concerns have substantive merit, it remains that such disagreements, standing alone, are not enough to create a constitutionally sound basis for impeaching and removing [Krasner].”

Ceisler found charges that Krasner had obstructed an investigation of his office by a House committee, violated a crime victims’ rights law, and failed to enforce state laws also failed to meet the constitutional standard of misbehavior in office. 

“[Krasner], as Philadelphia’s chief law enforcement officer, has broad discretion regarding his policy decisions and prosecution choices,” Ceisler’s opinion said.

She found the General Assembly does not have the authority to pursue claims in three of the articles of impeachment charging Krasner with violating the Rules of Professional Conduct and Code of Judicial Conduct. Those allegations encroach upon the authority of the judicial branch, which has the sole authority to regulate the practice of law.

While Wojcik agreed that the charges alleging professional misconduct were within the court’s purview, he wrote that it did not have jurisdiction to decide the constitutionality of the four articles of impeachment charging Krasner with misbehavior in office.

Wojcik cited an opinion by the court in the 1994 impeachment case against state Supreme Court Justice Rolf Larsen, who was charged with misconduct including preferential treatment for cases involving lawyers with whom he was friends and violating prescription drug laws.

There, the court found that it had no power to intervene in an impeachment before it happens, just as the court has no authority to intervene in legislation before it is enacted.

“The question of whether the House and Senate should proceed down that path is not within our purview. Ultimately, it is for the electors of the Commonwealth to decide if this folly has been a wise use of legislative resources, just as it is for the electors of Philadelphia to decide if Petitioner is properly discharging his duties as District Attorney,” Wojcik wrote.

Philadelphia elections attorney Adam Bonin said it’s not unheard of for a judge to revise their position in a case after issuing an order. The issues often become clearer in the process of drafting an opinion. 

“I do think it is a legitimately tough question to decide,” said Bonin, who was a lawyer for Krasner’s reelection campaign.

Ledewitz said that while Krasner is unlikely to win an injunction to stop an impeachment trial if Senate leaders decide to proceed, the Commonwealth Court’s opinions will be strong support if he decides to appeal to the state Supreme Court.

And, Ledewitz said, the ruling may give the Senate a face-saving excuse to drop the impeachment.

“It may be that the Senate is skittish because this has been so convoluted and it won’t look good if they go ahead,” Ledewitz said.