Judges decline to appoint Kerstetter as Union County DA

Oct. 27—LEWISBURG — Union County District Attorney candidate and First Assistant District Attorney Brian Kerstetter is criticizing county judges' decision to reject a motion appointing him to fill the office.

Union-Snyder County President Judge Lori Hackenberg and Union County Judge Michael Piecuch issued the order to deny the motion of Union County Assistant District Attorney Martin R. Wilson to appoint Kerstetter, a candidate for the position on the Democratic ballot. The position was left vacant on Sunday following the death of longtime District Attorney D. Peter Johnson months before his retirement.

"Because the next municipal election is occurring less than 90 days after the occurrence of this vacancy, the court has no authority to appoint under section 1404," the judges wrote. "This situation makes good public policy. An appointment so close to a municipal election could create an appearance that the courts are endorsing a particular individual as worthy of serving as district attorney rather than simply ensuring continuity of operations."

The judges continued, "Fortunately, there are other legal methods for the duties of the office of district attorney despite the vacancy. By the operation of law, the first assistant is the acting district attorney and has already assumed and is exercising the duties of the office. On Nov. 7, 2023, the voters of Union County will then decide who will take the oath as district attorney for a four-year term commencing on Jan. 1, 2024."

Johnson served in the elected position for nearly 28 years and would have finished his seventh, four-year term as a Republican at the end of this year. Kerstetter, with 23 years of experience practicing law, including 18 years as a prosecutor, lost the Republican nomination to Northumberland County First Assistant District Attorney Robyn Zenzinger, but had enough write-ins to secure the Democratic nomination.

The judges wrote that there are various legal methods of success when a vacancy occurs in the DA's office: appointment and operation of law.

"One method has already occurred here by operation of law," the judges wrote. "The first assistant district attorney is the acting district attorney having automatically by statute assumed the duties of the office upon the recent passing of District Attorney D. Peter Johnson."

The court cannot presume the first assistant district attorney satisfies the requirements of Section 1404 because a showing is required and the contents of the motion do not suffice, the judges wrote.

"The Legislature has imposed on the court the responsibility to evaluate this condition precedent: whether there was been a showing that the statutory requirements to serve as district attorney under Section 1401 have been satisfied by the first assistant district attorney," the judges wrote.

Eligibility and qualifications

There are nine qualification and eligibility criteria for an individual to serve as district attorney, including residency, age, citizenship, attorney status, availability and not being engaged in practice and being completely disassociated with any firm. Despite needing a showing that the criteria is satisfied, "the motion lacks any specific averments as to those criteria," the judges wrote.

The motion fails to make the required showing that the qualifications and eligibility criteria have been satisfied, the judges wrote.

Kerstetter does not meet the statutory requirements to be appointed as district attorney, the judges wrote.

"The first assistant district attorney operates a law firm in Union County under his name," the judges wrote. "The court takes judicial notice of his entries of appearance in the 17th Judicial District indicating he currently represents numerous private clients. According to his website, he is the attorney/solicitor for the Domestic Relations Office in Union and Snyder counties, for several township and municipal authorities, and for the Buffalo Valley Regional Police Commission. Although they were completely ignored by the movant, these facts show the first assistant district attorney is not eligible to serve as district attorney because he is presently 'engaging in any private practice' and has not 'completely disassociated with any firm.'"

While this does not disqualify Kerstetter from serving as acting district attorney, it does disqualify him from serving as district attorney, the judges wrote.

The judges also noted that Wilson filed the motions and verified the contents, and not Kerstetter.

"While the statute does not specifically require that the first assistant district attorney be the movant, the motion here has neither a verification nor an affidavit from the first assistant district attorney," the judges wrote.

Kerstetter said Hackenberg and Piecuch "mistakenly" relied on a statute that addresses a temporary absence, not a vacancy in office.

"It is totally disingenuous for a judge who was formerly my employer and a judge of a county with which I hold a contract to imply my qualifications are unknown to them," said Kerstetter. "The judges have further conveniently ignored that the requirement to disassociate myself from my private practice does not occur until or, in this case, unless I am sworn in as district attorney. The 90-day period on which the judges rely is to ensure candidates have the opportunity to appear on the ballot not to create a situation in which a county does not have a district attorney."

Ethics

Kerstetter said Hackenberg and Piecuch violated ethics requirements.

"It was shocking to learn that the judges of Union County have denied Attorney Wilson's motion without a hearing, a fundamental right in our judicial system," said Kerstter. "Their efforts to appear to distance themselves from a political race, are just the latest example of their inability to place the ethical requirements of their offices above their own motives. My opponent for office has paid Judge Hackenberg's husband to run her campaign as reflected by her campaign finance reports. Judge Piecuch has been pictured campaigning with Zenzinger."

Zengzinger paid $1,500 to Hackenberg's husband Jeremy Norman, of Mt. Pleasant Mills, for campaign consulting, according to Zenzinger's statement of expenditures in June.

No complaints or challenges to Zenzinger's financial report have been filed in the Union County Board of Elections, according to Union County Director of Elections Greg Katherman.

Press Secretary/Director of Communications for the Supreme Court of Pennsylvania and AOPC Stacey Witalec said the matter of Zenzinger's campaign was discussed with legal counsel and provided a reference to the Code of Judicial Conduct 207, Rule 4.1-4.4.

According to the Code of Judicial Conduct 207, Rule 4.1-4.4, it appears that no violations occurred. The section only lists that judges themselves cannot campaign for anyone else, but says nothing about spouses or family members.

It does however state that "a judge or judicial candidate shall take reasonable measures to ensure that other persons do not undertake, on behalf of the judge or judicial candidate, any activities prohibited under paragraph."

Kerstetter urged Union County residents to vote.

"It can't be more clear that the voters of Union County must choose an independent District Attorney even if the judges are unwilling to do so," he said.