PA Attorney General Dave Sunday – Constitutional Traitor or Oath-Keeper?

It is difficult to go on Facebook or any internet firearm forum without seeing all the negative comments about the decisions being made by newly-elected Attorney General David Sunday. But are those comments justified? As an attorney on the other side of the isle in several cases where Attorney General Sunday’s Office is representing the Pennsylvania State Police Commissioner, I think I have a unique perspective that most will find extremely helpful in reaching their own conclusions.

First, I want to start with a duly enacted law that few know of, at least until it is their side of the political-aisle that isn’t being represented – the Commonwealth Attorneys Act. You probably remember the outrage when then-AG Kathleen Kane refused to defend the constitutionality of PA’s ban on same-sex marriages or when then-AG Josh Shapiro refused to defend the constitutionality of PA’s ban on Medicaid-funded abortions. And these are just two examples of the dozens, where Pennsylvania’s attorney generals have shirked their statutory obligations and violated their oaths of office, under the Commonwealth Attorneys Act.

Specifically, 71 P.S. § 732-204(a)(3)(emphasis added) provides:

It shall be the duty of the Attorney General to uphold and defend the constitutionality of all statutes so as to prevent their suspension or abrogation in the absence of a controlling decision by a court of competent jurisdiction.

As you can see, there aren’t exceptions to rule that if your political views are contrary to the defense of a particular statute that your duty is abrogated. The rule is absolute, at least until “a controlling decision by a court of competent jurisdiction” rules the law unconstitutional. At that point, although there aren’t any cases interpreting this language, it seems clear to me that the attorney general gets to decide whether he/she will continue to defend the constitutionality of the law or step aside. This is supported by the fact that the General Assembly only required it until a decision by “a” — singular — court of competent jurisdiction and buttressed by the fact that it does not use language such as “the highest court of competent jurisdiction” or “Pennsylvania or US Supreme Court.”

Resultantly, an attorney general’s duty to defend the constitutionality of a law could end in numerous ways or points during litigation. For example, if a preliminary or permanent injunction is issued against the law in question over its constitutionality, the attorney general’s obligated duty would end. Conversely, even if the trial court found the law to be constitutional, but a the mid-level appellate court found it to be unconstitutional, the statutory duty would cease; leaving it up to the attorney general to decide whether his/her office would continue to defend the law’s constitutionality.

Turning to the cases where I am on the other side of the isle, challenging the constitutionality of numerous provisions of the Uniform Firearms Act as they relate to 18-20 year olds and those who are otherwise precluded from obtaining a license to carry firearms, the initial trial court decisions either resulted in a loss or the decision was stayed pending appeal. Based on § 732-204(a)(3), Attorney General Sunday was required to continue defending the constitutionality of the laws before the Third Circuit Court of Appeals, because we did not have a controlling decision by a court, finding that the law was unconstitutional. However, that did recently change, when the Third Circuit ruled in my case – Lara, et al. v. PSP Commissioner, No. 21-1832 – that Pennsylvania law unconstitutionally bans 18-to-20-year-olds from carrying firearms outside their homes during a state of emergency (18 Pa.C.S. § 6107). And that ruling came down before AG Sunday was sworn-in.

Once sworn-in (which doesn’t result in him knowing about any of the thousands of pending cases in his Office and I don’t believe he knew anything, at that point, about the Lara case), while there was a ruling by a court of competent jurisdiction that the law is unconstitutional, a new dilemma arose – his ethical obligations, because the time to file an appeal to the U.S. Supreme Court was ticking and he is ethically required to protect the interests of his client – e.g. provide sufficient time to obtain new counsel – if we assume that he will not be defending the Commissioner before the U.S. Supreme Court. And he honored that ethical obligation by merely obtaining an extension of time – until June 26, 2024 – for the PSP Commissioner to decide whether to appeal and if so, to obtain new counsel.

Of course, this assumes that Attorney General Sunday agrees that he is no longer statutorily obligated to appeal this matter further and believes the law to be unconstitutional. And we’ll all know more on June 26th as it relates to the Lara case… And while I have other cases currently pending with his Office, in both cases, although the district court found several provisions of the Uniform Firearms Act to be unconstitutional, it stayed its decision pending appeal, which, unfortunately, seem to have stagnated before the Third Circuit (perhaps due to the potentially non-final nature of the decision in Lara, if the PSP Commissioner were to appeal).

Thus, as of this point, I have not found Attorney General Sunday to have done anything inconsistent with his statutory and ethical obligations. In fact, it is extremely refreshing to see Pennsylvania have an attorney general that actually follows the law, his oath, and ethics. And this, in my opinion, says everything about the character of Attorney General Sunday.

However, for some, that still isn’t enough, because Attorney General Sunday isn’t one who broadcasts every action he takes. Fox example, he has clawed back litigation regarding public funds for abortion, as well as, undated mail in ballots. But you won’t find that on the Attorney General Sunday’s website or in any press releases…

Further, just a little over a week ago, he entered into a new reciprocity agreement with Virginia. While there was a press release and the reciprocity map was updated, the news of it wasn’t broadcasted across social media and news agencies by the Attorney General’s Office. And I believe, if you take the time to look at all the press releases that have been issued, you’ll be impressed by what all Attorney General Sunday has accomplished since being sworn-in.

So, before you contend that Attorney General Sunday is constitutional traitor, spend some time considering whether he is, refreshingly, actually a constitutional oath-keeper.