**NOTE: This is an evolving story and we will continue to update the information as it becomes available
First assistant district attorney William Urbanski has asked the state supreme court to reverse Judge Jason J. Legg’s order issued Friday appointing Marion O’Malley as the new Susquehanna County District Attorney.
O’Malley, would, according to the judge’s order, replace Robert Klein, who succumbed to cancer late last month.
In the single page order, Legg appointed O’Malley, his former first assistant, “to the vacant office of Susquehanna County District Attorney to fill the office until the first Monday in January, 2020.”
O’Malley, who as the now duly appointed district attorney enjoys the authority to make appointments in her office, did not return a message left at her office last week. In 2015, O’Malley lost election to district attorney to Klein by fewer than 40 votes.
Urbanski’s petition, filed Monday by his attorney Bruce L. Castor Jr. of Ardmore, is the latest development in a story which began last week after Urbanski was sworn in as district attorney replacing Robert Klein, who lost his fight with cancer on Dec. 27, 2017.
Two Susquehanna County judges had previously told Urbanski that under a portion of state law governing the appointment of replacement district attorneys, he needed to first live in this county for at least a year before he could assume the position of District Attorney.
But that didn’t stop Urbanski from having his lifelong friend, Luzerne County Magisterial District Judge James J. Haggerty, swear him in last Monday as the county’s new district attorney at his family’s home in Luzerne County.
Urbanski maintains that as he was the county’s first assistant district attorney at the time of Klein’s death, under the county code for sixth-class counties such as Susquehanna, the law dictates that he therefore assumes the position.
“There is no residency requirement in 1404. That is in 1401 for District Attorneys who are ‘elected’ or ‘appointed.’” Castor, Urbanski’s attorney, said in a lengthy e-mail Monday. “As DA Urbanski was neither elected nor appointed, but became DA by operation of law, he takes office under a different statute. That statute doesn’t have a residency requirement,” Castor wrote.
Castor said that Legg’s reliance on section 1404 is misplaced as Urbanski became DA under a different part of the law which provides that the second in command assumes the position upon the death of the sitting district attorney.
Castor went on to say that Legg should have made a formal factual finding on Urbanski’s residency.
“Should he not have been granted a hearing to argue that he is qualified under the law to be DA? Can a judge simply make evidentiary and legal rulings on his own, with no court filing, no hearing and no argument?” Castor asked.
Castor also argued that the will of the voters in electing Klein showed that they trusted his judgment as to who would be his successor: Bill Urbanski.
“There will be an election in less than two years. If the voters decide they would prefer the candidate whom they defeated in 2015 over the choice of the candidate they decided on, the voters will choose her instead,” he wrote.
Castor is identified in the supreme court filings as a “Special Assistant District Attorney” but county commissioners chairman Alan Hall said Tuesday that Urbanski did not have authority to make that appointment and that Castor should not so identify himself.
“The tax payers are not paying for this. Either fix it or we will order it to be fixed,” Hall said. (UPDATE, Jan. 11, 2018, 12:46 p.m.: The county commissioners reversed their position on the appointment of Castor on Wednesday, Jan. 10. DA Urbanski is paying me out of pocket and may appoint whomever he wishes as a (temporary) Special Assistant District Attorney.)
President Judge Jason J. Legg wrote Urbanski Dec. 29, informing him how he had conferred with Senior County Judge Kenneth W. Seamans, who agreed that Urbanski did not meet the in-county residency requirement established by state law.
“You have conceded that you are not a resident of Susquehanna County,” wrote Legg, who served as district attorney prior to Klein. “Given the mandatory residency requirement under section 1401(a), you are not eligible to serve as the District Attorney of Susquehanna County because you are not a county resident.”
State law does not require first assistants to live in county and in his petition Urbanski states his residency as Franklin Twp., Susquehanna County. Urbanski’s Facebook page lists Kingston, Luzerne County, as his residence. Urbanski is also registered to vote there. Contacted Monday, Urbanski’s office said he would continue not to have any comment on his swearing in.
In the letter, a copy of which Legg’s office distributed to various news outlets last week, Legg goes on to explain how even if Urbanski, 50, the former head of the Luzerne County Republican Party, were to immediately obtain residency in this county, he would still be, in the language of the state law, “unable to serve.”
This same requirement of state law, Legg wrote, is mirrored in the local county code, which says, “. . . the County Code provides that a district attorney must have ‘resided in the county for which he is elected or appointed for one year preceding his election or appointment.’ ”
In a statement, the Susquehanna County Bar Association, which under the law is tasked with providing the judges with a list of qualified applicants, has also sided with the judges.
“It is the opinion of the Susquehanna County Bar Association that pursuant to Pennsylvania statutory law, the district attorney of the county must be a resident of the county in which he or she serves for one year prior to his or her election or appointment,” the statement read.
“Attorney Urbanski as the First Assistant District Attorney of Susquehanna County has not met this residency requirement. Therefore, the Judge of the Court of Common Pleas of Susquehanna County is mandated by statute to fill the vacancy of the position of District Attorney by the appointment of a qualified person.”
Following the provision of state law which lays out the procedure for filling the vacant position of district attorney, Legg and Seamans advertised the position with the county bar association by letter.
Susquehanna County Democratic Party Chair Rick Ainey said that his organization would rely on the court system to sort things out. “The county Democratic party will not take an official position on this. We’ll let the courts decide it,” Ainey said. “It appears that the residency is the issue and it’s going to be resolved in the court,” Ainey said.
“There’s certainly an issue there and folks have different opinions and we look to the courts to resolve it if it continues to be an issue, which we expect it will,” Ainey added.
This isn’t the first time Urbanski’s out-of-county residency has surfaced as an issue. It came up at a county commissioners’ meeting as early as March 2016 after he was hired Feb. 29.
A 2000 Commonwealth Court opinion concerning a dispute in Lackawanna County over the appointment of a replacement district attorney is any indication, may have bearing on the outcome of this case for Urbanski.
In that case, the Lackawanna County Commissioners and Board of Elections and the county Republican party ended up in court over the county court’s appointment of Andrew J. Jarbola to replace Michael J. Barrasse, who had won election as judge. (Klein served with the Lackawanna County district attorney’s office for over 15 years before winning election as Susquehanna County district attorney. Jarbola is now a Lackawanna County judge.)
The discussion in that case revolved around whether the county charter or a provision of the county code found in state law governed Jarbola’s appointment. The Commonwealth Court decided that the county code – the same law referred to in the judges’ letter to Urbanski — controlled and that the authority to replace a district attorney rested exclusively with the county court judges.
“When a vacancy occurs there must be uniformity throughout the Commonwealth in filling the vacancy. Section 1404 provides that uniformity and mandates that a vacancy in the district attorney’s office is to be filled for the unexpired term by the judges of the court of common pleas,” Commonwealth Court Judge Bernard L. McGinley wrote in a lengthy footnote speaking for the majority.