HARRISBURG — Taxpayers will spend $400 an hour — and possibly a lot more — for Gov. Tom Corbett to hire an outside law firm to fight a federal lawsuit challenging the state’s 1996 ban on gay marriage.
The Corbett administration said Thursday it is hiring the law firm of William H. Lamb, a former state Supreme Court justice, because state Attorney General Kathleen Kane withdrew from the lawsuit in July.
Kane’s refusal to handle the case means the state does not have access to the attorney general’s legal expertise on constitutional claims, Pennsylvania General Counsel James Schultz said in a statement.
“The Office of General Counsel provides comprehensive legal services to numerous state agencies and executives, but we do not typically defend cases that solely challenge the constitutionality of a statute,” Schultz said.
In a joint statement, Schultz and Lamb said their job is to defend the state’s Defense of Marriage Act while respecting the interests and dignity of all the parties involved in this case. The law defines marriage as a union between a man and a woman.
“Our mission is to present a thorough legal argument in the hope that a definitive ruling from the court will bring clarity to this issue,” Schultz said.
Lamb will be paid $400 an hour, and associates from his Chester County firm, Lamb McErlane, will earn $325. That does not include the regular salaries taxpayers will also cover for state lawyers to work on the case.
Kane’s first deputy Adrian King Jr. said the rules of professional conduct called for Kane to withdraw from the case because she had a fundamental legal disagreement with her client, the state.
But Kane’s withdrawal does not mean the state lacks qualified in-house attorneys to handle the federal lawsuit, King said. He cited Schultz’s own legal prowess in arguing an antitrust lawsuit against the NCAA and that of one of his top deputies, Gregory Dunlap, who on Wednesday argued a lawsuit in Commonwealth Court to stop a county official from issuing marriage licenses to gay couples.
“We are very surprised [the Office of General Counsel’s] leadership team lacks confidence in its ability to present the governor’s position on gay marriage,” King said.
Schultz’s spokesman, Nils Hagen-Frederiksen, said the attorney general’s office has some of the best constitutional lawyers in the country because they deal with those type of claims more regularly than any other state agency. The Commonwealth Court case Dunlap is involved in is not as complicated as the federal lawsuit that Schultz’s agency now must handle.
Nonsense, King said. It’s not the first time Schultz has hired outside counsel, King said, citing the private lawyers he brought in to help defend the state in a voters rights lawsuit earlier this summer.
Lamb, a Republican, served as Chester County district attorney from 1972 to 1980. He also served as a special prosecutor for the county from 1981-84.
Republican Gov. Mark Schweiker nominated Lamb to serve the remainder of Democratic Chief Justice Stephen Zappala’s term in 2002. Schweiker’s successor, Democratic Gov. Ed Rendell, concurred and Lamb was approved by the state Senate the next year.
“We look forward to offering our insights to this serious constitutional question,” Lamb said. “We are honored to once again have the opportunity to serve the commonwealth.”
On July 9, the American Civil Liberties Union and others filed a federal lawsuit challenging Pennsylvania’s Defense of Marriage Act in U.S. District Court in Harrisburg.
The ACLU’s 53-page complaint claims it is unconstitutional not to recognize same-sex marriages. It cites violations of the equal protection and due process clauses that protect against discrimination and infringement on liberties.
The state has until Sept. 16 to file a legal response to the lawsuit. The court also has set a Sept. 30 meeting to try to establish a time frame for the lawsuit given all the plaintiffs, defendants, lawyers and issues involved in it.
The federal suit is not related to the Commonwealth Court lawsuit Corbett’s administration filed to try to stop a Montgomery County clerk from issuing marriage licenses to gay couples. President Judge Dan Pellegrini is expected to rule on that lawsuit in coming days.