Barker v. Kane

149 F. Supp. 3d 521, 2016 WL 827129, 2016 U.S. Dist. LEXIS 26850
CourtDistrict Court, M.D. Pennsylvania
DecidedMarch 3, 2016
DocketCIVIL ACTION NO. 1:15-CV-1924
StatusPublished
Cited by18 cases

This text of 149 F. Supp. 3d 521 (Barker v. Kane) is published on Counsel Stack Legal Research, covering District Court, M.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barker v. Kane, 149 F. Supp. 3d 521, 2016 WL 827129, 2016 U.S. Dist. LEXIS 26850 (M.D. Pa. 2016).

Opinion

MEMORANDUM

Christopher C. Conner, Chief Judge

The case at .bar arises, out of employment action taken by the Attorney General for the Commonwealth of Pennsylvania, Kathleen Kane (“Kane”), following a grand jury investigation targeting her conduct in office. Plaintiff James Barker (“Barker”), former Chief Deputy Attorney General of Criminal Appeals, asserts that Kane terminated his employment in retaliation for proffering unfavorable testimony before the grand jury and thereafter assailed his reputation on the public stage. In the complaint, Barker accuses Kane of violating his constitutionally protected rights to freedom of speech and due process.1 Kane moves the court to stay the instant action pending disposition of related criminal charges filed against her in the Court of Common Pleas of Montgomery County, Pennsylvania.2 Barker adamantly opposes Kane’s request.3

I. Factual Background & Procedural History

Between July 2014 and January 2015, Pennsylvania’s Thirty-Fifth Statewide Investigating Grand Jury (“the. grand jury”) investigated allegations that Kane surreptitiously leaked information from a 2009 grand jury to the press.4 5 The grand jury returned a sealed presentment on December 19, 2014, recommending that the Montgomery County District Attorney pursue myriad criminal charges against Kane, to Wit: perjury, false swearing, abuse of office, obstruction of the administration of law, and contempt of court.6 The presentment concluded that Kane released protected grand jury material to exact ret[523]*523ribution on political opponents and thereafter orchestrated an elaborate cover-up, culminating in perjury in flagrante.7 , .

The controversy undergirding the investigation arose out of a Philadelphia Daily Nemsarticle published June 6, 2014.8 In a front page feature, the story criticized former state prosecutors for terminating a 2009 criminal probe into the use of public funds by Philadelphia’s then NAACP leader, J. Whyatt Mondesire (“Mondesire”).9 Relying manifestly on internal documents from the Office of the Attorney .General, the .article catalogued various and sundry evidence presented to a 2009 investigating grand jury concerning Mondesire’s financial dealings.10 Significantly, the article failed to disclose how the,-Philadelphia Daily News gained access to the provocative documents.11 The grand jury commenced its review of the disclosure shortly thereafter.

Over the course of the six-month inquest, Kane, Barker, and other current and,former senior staff members in the Office of the Attorney General .testified before the grand jury.12 According to the presentment, Kane asserted the following defenses: , .

[T]he [released] information did not qualify for protection because it was not produced during the 2009 Grand Jury; she was not obligated to protect its secrecy because she had not signed an oath of secrecy for an investigation that preceded her, administration; and she acted under reasonable belief that the information:was not subject to grand jury secrecy because had members of her senior staff believed the information was subject to grand jury secrecy they would have brought to her attention a recommendation that all new persons within her administration, particularly her, should be required to sign oaths of secrecy at that time.13

Kane also represented that she did not order the release of the documents in question, claiming that she was unaware of their existence prior to the publication of the Philadelphia Daily News article.14

Barker testified,that in his. role as Chief Deputy Attorney General of Criminal Appeals, he was responsible for supervising all statewide investigating grand juries on behalf of the Office of the Attorney General.15 Counterpoising Kane’s asseverations, Barker stated that “he immediately concluded that the documents that were leaked to the press were grand jury information subject to secrecy protections, and that no reporter should be in its possession.”16.Barker further explained that “it is common practice for all senior and support staff of the [Office of the Attorney General], its investigators, agents, and the Attorney General to have an implied ongoing obligation to honor grand jury information as secret, and such obligation does not expire even when a grand jury no longer is in session.”17 The grand jury ultimately [524]*524relied on Barker’s testimony to a significant degree, underscoring his representations throughout the presentment.18 The presentment concluded as follows: “We find that the testimony of Attorney General Kane was not an honest account of the events, and she mischaracterized events to cover-up activities undertaken at her direction to unlawfully release documents subject to grand jury secrecy.”19

On March 13, 2015, the Philadelphia Inquirer published an article detailing the grand jury’s findings as set forth in the sealed presentment.20 The article highlighted the grand jury’s reliance on Barker’s testimony; specifically, it reported that Barker unequivocally identified the released documents as confidential grand jury information and that Barker “told the grand jurors that the entire office, including the attorney general, was bound by confidentiality regardless of when a jury had met.”21 The story conspicuously juxtaposed Kane’s defensive position with Barker’s testimony.22

The inceptive event in the matter sub judiceoccurred shortly thereafter; on April 8, 2015, Kane terminated Barker’s employment.23 According to Barker, Kane tendered no explanation for her decision.24 Barker avers that Kane issued the following written statement the next day: “[R]e-structuring was necessary for efficiency and tighter controls amid media reports of cases allegedly before a sitting grand jury. While not known yet who is specifically responsible for those leaks, supervisory accountability falls to the head of the unit.”25

On April 10, 2015, the supervising judge of the grand jury ordered Kane to show cause why Barker’s termination did not violate a protective order entered in the investigation.26 The antecedent protective order, issued August 27, 2014, prohibits employees of the Office of the Attorney General from retaliating against witnesses subpoenaed to testify before the grand jury.27 The supervising judge scheduled a hearing thereupon.28' In riposte, Kane allegedly cautioned that a hearing “would prove professionally embarrassing” to Barker and “impact his ability to secure future employment.”29

Subsequent to oral argument held on April 27, 2015, a three-judge panel referred the matter of Barker’s termination to the Montgomery County District Attorney for further investigation.30

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Bluebook (online)
149 F. Supp. 3d 521, 2016 WL 827129, 2016 U.S. Dist. LEXIS 26850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barker-v-kane-pamd-2016.