Commonwealth Court upholds law giving special prosecutor jurisdiction over crimes on SEPTA

Philadelphia District Attorney Larry Krasner takes questions from reporters after a press conference in Harrisburg on Friday, Oct. 21, 2022 (Capital-Star photo).

Philadelphia District Attorney Larry Krasner on Friday lost his court challenge to a state law that limits his jurisdiction over crimes committed on public transit in the city. 

A divided Commonwealth Court panel ruled Friday that “Act 40 does not clearly, palpably, and plainly violate the Pennsylvania Constitution,” which was the argument Krasner made in the challenge he filed in January. 

Act 40, passed by the Legislature and signed into law by Gov. Josh Shapiro in December, requires the Pennsylvania attorney general to appoint a special prosecutor with jurisdiction over crimes committed “within” the Southeastern Pennsylvania Transportation Authority (SEPTA).

Krasner argued that the state constitution does not allow appointment of a special prosecutor to usurp the DA’s authority, and noted that a provision that prohibits defendants charged by the special prosecutor from challenging the special prosecutor’s authority violates the U.S. Constitution’s due process clause. Thus, the law would give anyone charged by the special prosecutor grounds to challenge their convictions.

Judge Anne Covey, writing for the majority, said Krasner’s assertion that the law would “likely lead to the dismissal of charges or convictions” was “entirely speculative.” 

Judge Christine Fizzano Cannon focused on the word “within” in a separate opinion in which she concurred with the majority but disagreed with its blanket rejection of Krasner’s constitutional challenges..

“SEPTA is an agency. It is an entity. It is not a specific place or a tangible thing. The meaning of ‘within’ in relation to SEPTA conveys no concrete impression to the ordinary person; it is simply incomprehensible,” Cannon wrote. She added that “deprivation of a criminal defendant’s ability to challenge the jurisdiction of the Special Prosecutor violates due process.”

An angry Krasner pushed back against the notion that the law is meant to help improve public safety in Philadelphia during a press conference on Friday. 

“If they cared about public safety here, then they would be letting us do some things to deal with gun regulation. If they cared about public safety here, they would fund our public schools. If they cared about public safety here, we wouldn’t have to beg them to fund SEPTA properly,” Krasner said.

Philadelphia, Krasner added, “is doing a remarkably good job at improving public safety, and this office is part of that. This has been about politics. It has been about a politics of fear. It has been about a racist politics, and that is what’s really going on.” 

On Friday afternoon, Pennsylvania Attorney General Michelle Henry announced the appointment of Michael Untermeyer to serve in the role of special prosecutor. 

“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 said. “We selected a candidate who expressed a commitment to public safety while possessing the qualifications required by Act 40.”

More Republicans than Democrats backed Act 40’s passage, however it still passed on a bipartisan basis. Krasner accused those supporting it of not wanting minority voters to have their voices heard through the electoral process. He easily won reelection in 2021.

“Make no mistake, the Republican legislature does not want one Democratic, Black, brown or poor vote from Philadelphia counted,” Krasner said. “That is what is actually at stake. That is what is actually going on here.”

He added that “the people who passed this law in general are authoritarians who are very much in favor of the disenfranchisement of Black and brown and poor people in Philadelphia.” he added.

Krasner and Shapiro have been at odds over the law since it passed. 

During an interview with NBC10 in February, Shapiro said he believes the appointment of a special prosecutor would have a positive benefit on safety on SEPTA and disagreed with the notion that it was taking power away from Krasner’s office. 

“I’m the former Attorney General of Pennsylvania. We have concurrent jurisdiction from DA’s in a whole range of cases, that’s nothing new,” Shapiro said. “Having that concurrent jurisdiction, bringing more law enforcement resources into the City of Philadelphia is a good thing.”

Krasner said that there is nothing wrong with the use of a special prosecutor in the appropriate circumstances, but he does not believe that this is one of those cases. 

“​​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. 

GOP lawmakers have been attempting to remove Krasner from office over his progressive criminal justice policies that include selective prosecution for offenses such as shoplifting, prostitution and marijuana possession. 

“With today’s Commonwealth Court ruling upholding Act 40, seven months after becoming law this collaborative effort will finally begin to make a difference with a special prosecutor to oversee crimes occurring on SEPTA within the City of Philadelphia,” state Senate Majority Leader Joe Pittman (R-Indiana) said in a statement Friday. “I appreciate Attorney General Michelle Henry’s ongoing work to keep Pennsylvanians safe and look forward to swift appointment of the SEPTA Special Prosecutor.”

The state House, then controlled by Republicans, voted 107-86 to impeach Krasner in the waning days of the 2021-22 legislative session. But the session ended and the Democrats took control of the House in 2023, and an impeachment trial was never held.

The state Supreme Court heard arguments in November 2023, over whether articles of impeachment die at the end of a legislative session as unpassed legislation does, or if the impeachment proceedings could continue. 

Act 40 in the attorney general race

The issue of Act 40 has emerged as a topic of discussion in the race for Pennsylvania attorney general. 

Former Auditor General Eugene DePasquale, the Democratic candidate for attorney general, said during a candidate forum in April that he was “not happy with how Act 40 happened,” but added that he’s “also been clear, public safety on SEPTA is critical.”

“I’ll work with the district attorney and the resources that law gives to make sure that people are better protected on SEPTA,” DePasquale said during the April forum. “I think there’s a way to use those resources and partner with a district attorney to make sure people are better protected on SEPTA.”

DePasquale said in an emailed statement to the Capital-Star  on Friday that “people should feel secure on public transportation and I look forward to working with law enforcement and District Attorneys in Southeastern Pennsylvania to prosecute crimes committed and make SEPTA as safe an experience for visitors and commuters as possible.”

York County District Attorney Dave Sunday, the Republican Party nominee for attorney general, has endorsed Act 40. 

“When I’m elected attorney general, I will do everything I can to quickly put someone into that position as a special prosecutor,” Sunday said during a debate in March. 

Sunday added that he believes there are challenges with the law, given that “it only lasts three years” and that there’s a sunset on it, plus identifying someone willing to do the job based on the criteria. 

“But all that being said, anything that we can do to make Philadelphians safer is something that I will absolutely do on day one,” Sunday said in March.

Sunday did not immediately reply to a request for comment on the Commonwealth Court decision Friday.

Untermeyer has 15 years of experience as a prosecutor and served as a special counsel to the Office of Inspector General, deputy and senior deputy attorney general, and as an assistant district attorney, according to the release from Henry’s office. He most recently worked as an attorney in private practice.

Untermeyer has sought elected office in Philadelphia, once running in the same open race as Krasner. In 2023, Untermeyer narrowly lost to incumbent Philadelphia Sheriff Rochelle Bilal in the Democratic Party primary. In 2017, Untermeyer was one of the seven Democrats vying for the open race for Philadelphia District Attorney, which Krasner ultimately won. 

The Philadelphia District Attorney’s office said in a statement Friday that it plans to appeal the decision.

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