Ruling against DA Larry Krasner, state court says law creating special prosecutor for crimes on SEPTA is constitutional

In a 4-3 decision, the Commonwealth Court of Pennsylvania ruled Friday against Philadelphia District Attorney Larry Krasner’s lawsuit opposing the creation of a special prosecutor to pursue crimes on SEPTA.

And late Friday afternoon, state Attorney General Michelle Henry announced the appointment of Michael Untermeyer as the special prosecutor. Untermeyer is a former city and state prosecutor who also was one of the Democratic candidates whom Krasner defeated when he was first elected in 2017. He also unsuccessfully ran for Philadelphia sheriff last year.

Krasner’s suit had argued that the law, passed late last year by state Republicans joined by dozens of Democrats, violates the state constitution by taking away some of his powers as the twice-elected district attorney and disenfranchising his voters.

In the majority opinion, Judge Anne E. Covey said that the law, known as Act 40, “does not clearly, palpably, and plainly violate the Pennsylvania Constitution.”

The matter now goes before the state Supreme Court.

Under the law, the special prosecutor would choose which crimes on SEPTA property to prosecute, leaving the rest for Krasner’s office.

At a news conference Friday afternoon, an animated Krasner said he was hopeful the state’s high court would side with him and the three dissenting Commonwealth Court judges.

Citing recent media reports, Krasner said that “crime on SEPTA is dropping like a rock, that crime in the city of Philadelphia is dropping like a rock, that crime across the country is dropping like a rock. And if I read my coverage correctly, Philadelphia seems to be leading the way among major cities.”

Krasner reiterated his previously stated argument for why the law was passed: “We have said from the beginning and we will say it again, this has nothing to do with public safety and never did. This has to do with the disenfranchisement of Philadelphia voters by devaluing their vote.”

The state attorney general’s office said in a statement that the appointment of Untermeyer was moving forward because of the Commonwealth Court ruling. The law requires the attorney general to make the appointment.

Act 40 also requires that the special prosecutor live in Philadelphia and have at least fives years of experience in Pennsylvania as a prosecutor. The appointee cannot have been employed by the district attorney or the attorney general in the past six years.

“We worked diligently to follow the mandates of Act 40 to fill the position, first by posting the opportunity, then interviewing applicants to ascertain if they fit the specific criteria established by the law,” Henry, a Democrat, said in a statement. “We selected a candidate who expressed a commitment to public safety while possessing the qualifications required by Act 40.”

Republicans in Harrisburg have sought to limit or strip powers from Krasner, a progressive prosecutor whom conservatives accuse of prioritizing criminal justice reform over fighting crime.

State Republicans attempted to remove Krasner through impeachment, but Commonwealth Court sided with Krasner and halted the proceedings. That matter is now before the state Supreme Court.

State Sen. Wayne Langerholc Jr., a Cambria County Republican and primary sponsor of the legislation that created the law, said the Commonwealth Court’s ruling validates the lawful intent of Act 40. ”This legislation is unequivocally constitutional, and any statement to the contrary is inaccurate as is evidenced by today’s decision from the Commonwealth Court,” Langerholc said in a statement.

“Today is a win for law enforcement, riders of SEPTA and employees of SEPTA. Act 40 passed the General Assembly with broad bipartisan support and was signed by Gov. Josh Shapiro to provide additional resources to fight crime occurring on the SEPTA system,” said Langerholc, who is chair of the Senate Transportation Committee.

The law calls for the special prosecutor to investigate and prosecute crimes that occur on SEPTA property in Philadelphia through 2026 — the duration of Krasner’s second term.

SEPTA has welcomed the law, saying it needs to fight crime on the transit system and a special state prosecutor could help.

In December, the bill passed the Democrat-controlled House in a 159-44 vote. Most Philadelphia Democrats opposed it, except for three: State Reps. Amen Brown, Pat Gallagher, and Ed Neilson.

The bill passed the Republican-controlled Senate months earlier, but it languished in the House until it was revived as part of a larger budget deal negotiated with the governor.

Krasner on Friday denounced the intent of the legislation as “racist politics” targeting Black and brown voters in Philadelphia.

“This is a statement from the legislature that Philadelphians don’t know what they’re doing, that they’re not allowed to make decisions, that they don’t have the wisdom,” Krasner said.

“This is a profound threat to democracy as we know it in the city of Philadelphia. So it’s much, much bigger than me,” Krasner said.