Pa. Supreme Court hears arguments over whether a special prosecutor for SEPTA crimes is unconstitutional

The Pennsylvania Supreme Court heard arguments Wednesday over a challenge to a law creating a special prosecutor to pursue crimes on SEPTA.

From the bench, the justices peppered with questions the attorney arguing on Philadelphia District Attorney Larry Krasner‘s behalf for nearly an hour of the roughly 80-minute hearing. The rest of the time was divided between questioning the Pennsylvania Office of the Attorney General and SEPTA, which defended the constitutionality of the law.

The law in question extends the special prosecutor’s jurisdiction to crimes “within” a public transportation system in a county of the first class, meaning it has more than 1.5 million residents. Only Philadelphia meets the definition.

Krasner has contended that the law is unconstitutional because it singles out Philadelphia and strips away the authority of an elected district attorney.

“It’s a law targeted to him because of a difference of opinion about policies,” said John Summers of the Hangley Aronchick law firm, who represented the district attorney’s position.

» READ MORE: Pa. lawmakers strip some authority from DA Larry Krasner with bill assigning special prosecutor for SEPTA crimes

Krasner, a Democrat, filed a lawsuit in January 2024 attempting to quash the Republican-sponsored state law that gives a special prosecutor appointed by the state attorney general authority over crimes around SEPTA properties in Philadelphia. Gov. Josh Shapiro had signed the bill into law as part of a state budget deal in December 2023.

Krasner’s lawsuit called the law an “unconstitutional, radical, and unprecedented measure” amounting to a “shocking usurpation of power.”

In June, Commonwealth Court issued a 4-3 decision against Krasner, finding that the law was constitutional. In the majority opinion, Judge Anne E. Covey said the act “does not clearly, palpably, and plainly violate the Pennsylvania Constitution.”

Krasner appealed to the state Supreme Court, which heard arguments Wednesday but did not issue a ruling.

On Wednesday, justices pressed Krasner’s attorney to convince them that the General Assembly does not have the constitutional power to limit the authority of a district attorney or create a specific law for Philadelphia.

The justices noted that many laws are distinct to Philadelphia. For example, Philadelphia is the only county in which a license is required to openly carry a firearm, one justice noted.

Summers responded that state laws specific to Philadelphia are meant to advance the city’s ability to govern itself. A law that hands over duties of a Philadelphia elected official to a state official does the opposite.

“It’s anti-home rule,” Summers said.

The attorney also argued that the law, which he says was clearly motivated by a policy disagreement with Krasner, arbitrarily singles out Philadelphia.

He presented the justices with a hypothetical: If the population of Montgomery County grew and it became a first-class county, then the law would also strip the Montgomery County district attorney of the power to prosecute crimes within SEPTA properties.

“Is there any basis in the legislation for that? The answer is absolute, clearly no,” Summers said.

The attorney for Krasner added that serious crimes in the SEPTA system fell by 33% in 2024 compared with 2023, but not due to anything that the special prosecutor has done.

In June, then-Attorney General Michelle Henry appointed Michael Untermeyer, a Philadelphia lawyer who ran against Krasner in the 2017 primary for district attorney. He has not yet prosecuted any cases, Summers said.

Summers raised other arguments, including that the General Assembly is prevented from limiting district attorneys’ power.

But justices continued to come back to the text of the Pennsylvania Constitution, saying it appears to allow the legislature to “monkey around” with the duties of Philadelphia offices.

The attorney representing the office of Attorney General Dave Sunday, Daniel Mullen, argued that the legislature is allowed to pass legislation for specific classes of counties, and that having home rule does not preclude the General Assembly from being a check on Philadelphia.

» READ MORE: Police arrest Philly man they say shot four people on SEPTA bus in Fairmount Park

There is “zero text” in the constitution that prevents state legislators from regulating a district attorney, said Matthew Haverstick of the Kleinbard law firm, who represented SEPTA. SEPTA was not sued by Krasner but intervened in the case to support the law.

“The General Assembly decides what the duties and jurisdiction of a district attorney are,” Haverstick said. “That’s exactly what’s happened here. This is not novel. This is not unique.”

Justices asked how much of the powers of the Philly district attorney the legislature could constitutionally take away, and what happens if a person accused of a crime disagrees that the alleged offense happened “within SEPTA.”

Haverstick argued that the act does not strip away Krasner’s power but provides additional powers to a special prosecutor appointed by the attorney general. And the General Assembly has “a lot of latitude” as long as it does not ostensibly bypass the constitutional process of impeachment by limiting a prosecutor so much that “you’ve effectively removed him.”

As to questions of whether the constitution allows for laws that single out Philadelphia, Haverstick said: “Yes, we can treat Philadelphia differently.”