Court reinstates damage case against ex-AG Kathleen Kane

KANE
Former State Attorney General Kathleen G. Kane leaves in handcuffs after her 2016 sentencing.

A federal appeals panel on Wednesday reinstated a lawsuit brought against former Pennsylvania Attorney General Kathleen G. Kane by former state prosecutors and a former state police commissioner, who say she singled them out for smears in a bid to silence their criticism of her.

The three-judge panel of the U.S. Court of Appeals for the Third Circuit unanimously reversed the decision of a lower-court judge last year that Kane’s criticism of former State Police Commissioner Frank Noonan and former Deputy Attorney General Frank Fina and others was not a threat but “mere speech.”

The panel said the five plaintiffs had marshaled enough evidence to contend that Kane leveled serious threats designed to muzzle them.

Mark W.  Tanner, a lawyer for the plaintiffs, praised the ruling.

“It’s a step in the right direction,” he said. “The plaintiffs in this case have never had an opportunity to challenge the accusations and allegations made against them.”

Peter Scuderi, another plaintiffs’ lawyer, was blunter.

“I cannot wait to step on her the way she stepped on my client and other people,” he said.

The Attorney General’s Office said it was reviewing the opinion.

As Judges Theodore A. McKee, Thomas L. Ambro, and L. Felipe Restrepo noted in their 12-page opinion, Kane and Fina were locked in escalating “public combat” after the Inquirer in 2014 reported that Kane had killed an investigation led by Fina into a sting involving Philadelphia elected officials. Evidence in that probe included tapes of politicians pocketing cash from an undercover operative.

Kane blamed Fina for the embarrassing story. To retaliate, she leaked grand jury material about an unrelated investigation to the Daily News to suggest that Fina, too, had failed to pursue a case.

Fina complained about the leak, which triggered a criminal investigation that resulted in Kane’s being convicted last fall on charges of perjury, official oppression, and other offenses. Kane was sentenced to serve at least 10 months in jail and immediately resigned from office. She has been free pending the outcome of her appeal.

U.S. District Court Senior Judge Harvey Bartle III last year dismissed the suit filed by Fina, Noonan, former state prosecutors E. Marc Costanzo and Richard S. Sheetz Jr., and Randy Feathers, a former investigative agent on Fina’s state staff.

After the leak, Kane held a news conference and filed court papers in which she named Noonan, Fina, and the other plaintiffs as having exchanged porn on state computers while in office. In the resultant furor, Feathers and Sheetz lost jobs they had taken after leaving the Attorney General’s Office, and Fina and Costanzo were subjected to harsh criticism in their new roles as prosecutors with the Philadelphia District Attorney’s Office.

In November, Kane’s then-successor as attorney general, Bruce Beemer, said she had been wrong to focus on those men when hundreds of other government workers had received offensive emails, including more than 350 in her agency alone.

In rejecting the lower court’s conclusion that Kane had not threatened Fina and the others, the appeals panel noted that the lawsuit alleged that Kane aides had warned Fina associates that she would release the pornographic emails and that they would be hurt if Fina did not “back off.”

The original lawsuit in the case also named the Daily News and its corporate owner as defendants. By agreement of the parties, the newspaper defendants were removed from the case earlier this year.