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Who’s DA? 2 claim the office as own, clouding prosecutions

February 17, 2018

Marion O’Malley is tending to a homicide case and dozens of other criminal matters as the lone prosecutor in her rural Pennsylvania county. Whether she has any legal right to do so is another matter.

An unusual struggle for control of the district attorney’s office has landed in court, with the outcome likely to set a precedent that could ripple across most of the state’s 67 counties and, potentially, spur appeals by criminal defendants whose cases were handled by O’Malley.

The 54-year-old prosecutor, who took office Feb. 5, is squaring off against William Urbanski, 50, who briefly served as DA before a judge ruled him ineligible and installed O’Malley instead. Urbanski has filed suit to get the job back, asserting the judge misinterpreted the state’s residency requirement for district attorneys.

The state Supreme Court could ultimately decide the case. Defense lawyers are watching.

“I would imagine if Marion O’Malley is considered unable to hold the position by some higher court, there will be defense lawyers saying the prosecutions are invalid,” said criminal defense attorney Joe D’Andrea. “If it happens one time, it’ll spread like wildfire and every criminal defendant will want that.”

The dispute has its origins in the 2015 election for district attorney.

O’Malley, who’d been a part-time assistant prosecutor in the small county north of Scranton, ran for the top job but lost to Robert Klein. She departed the DA’s office, and Klein named Urbanski as his No. 2.

Klein, who subsequently battled cancer, died in office Dec. 27. On New Year’s Day, Urbanski summoned a magistrate to his farm and got himself sworn in as the new DA.

His tenure would be short-lived.

Susquehanna County’s only Court of Common Pleas judge, Jason Legg, refused to recognize Urbanski’s authority. Legg, a former DA himself, cited a state law that requires a chief prosecutor who has been “elected or appointed” to have lived in the county for at least one year. Urbanski, the judge pointed out, lives in neighboring Luzerne County, though he’d rented a home in Susquehanna shortly before taking office.

After deeming Urbanski ineligible, Legg picked O’Malley, who’d served under him in the prosecutor’s office. O’Malley then fired Urbanski.

Not so fast, Urbanski said.

His argument rests on another provision of state law. In Pennsylvania’s smaller counties, the first assistant district attorney — in this case Urbanski — automatically becomes DA in the event of a vacancy. Urbanski said the residency requirement for DAs doesn’t apply to him because he was neither elected nor appointed to the job, but became DA by “operation of law.”

His lawyer, Bruce Castor, said he had a hand in crafting the 2001 law.

“When we drafted the law, we intended that the first assistant automatically become DA in the smaller counties to avoid this kind of local politics,” said Castor, a former district attorney in suburban Philadelphia.

In court documents, O’Malley argues it would be an “absurd interpretation” of the residency rule to conclude that elected DAs in smaller counties must live in the county, but replacement DAs, “who have all the same powers and responsibilities, somehow are ‘able’ to serve without meeting those same requirements.”

The Pennsylvania District Attorneys Association is not taking sides. But its interpretation of the law mirrors Urbanski’s.

“If Judge Legg is mistaken, and he did not have the power to appoint Mrs. O’Malley, then no one currently has prosecutorial powers in Susquehanna County, and every person Mrs. O’Malley purports to prosecute could claim she lacks proper authority,” Castor said via email.

O’Malley said the same holds true of Urbanski’s tenure.

“When the dust settles on this, and I believe it’s going to settle in my favor, will I have a situation created as a result of Mr. Urbanski sitting in this office, having made plea deals?” she said. “It’s potentially an issue either way.”

A judge from central Pennsylvania is scheduled to hear arguments on March 5. Any appeal would head straight to the Supreme Court.

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