YORK COUNTY DISTRICT ATTORNEY DAVID W. SUNDAY. JR, JENNIFER RUSSELL ART SMITH KYLE G. KING DisrlrAtorey Fst silat Dire ternen ies Comty Betectce et Aininistrator Dear Counsel, T obtained and reviewed the following documents regarding Loper, ef al. v. Helfrick, 2017-SU-003535: (1) Complaint in Quo Warranto filed by Plaintiffs; 2) Petition for Preliminary Injunction and Permanent Injunction filed by Plaintiffs; G3) Answer to Petition for Preliminary Injunction and Permanent Injunction filed by Defendant; and (4) Brief in Support of Preliminary Objections filed by Defendant. In Defendant's Answer and Brief, Defendant challenges the ability of Plaintiffs to bring forward their action because “[t]o date, the District Atiomey has not refused to initiate the Quo Warranto, merely indicat{ing] they would review it after January 2, 2018 and reach a decision then.” Defendant’s Brief at p.4. am aware that the Honorable Richard K. Renn scheduled hearing for January 16, 2018, on the preliminary injunction request filed by Plaintiffs. also received a Praecipe to Withdraw filed by Plaintiffs on January 8, 2017. This Praecipie to Withdraw references the above-captioned action, which is titled Civil Action—Quo Warranto, and the wwith¢rawal is referenced as being without prejudice, ‘The Praecipie 19 Withdraw does not reference Plaintiffs’ Petition for Preliminary Injunction and Permanent Injunction. I have not seen an order by the Court cancelling the hearing scheduled for January 16". Additionally, 1 | must presume that Plaintiffs may wish to continue an action at some point challenging the qualifications of Defendant to hold office, as the withdrawal was filed without prejudice. Given the nature of the pleadings, and to aid in alleviating any confusion, I am giving counsel official notice that the Office of the District Attorney of York County will not be pursuing an action in quo warranio to remove Defendant from office. I offer the following as my reasons for refusing to initiate a quo warranto action, Initially, I cite the governing standards of law regarding standing to bring a guo warramto action: Generally, a guo warrant action is the exclusive means of challenging the title or right to public, office, and only the Attorney General or local district attomey may institute a quo warranto action. In ve One hundred or More Qualified Electors of the Municipality of Clairton, 683 A.2d 283, 286 Pa. 1996). [A] private person, with no special ight or interest in the public office, must frst seek to have cither the Attomey General or local district attomey file a quo warranto action. Tis only after both the Attorney General and the local district attorney decline to bring such ‘m action that a private person will have standing to seck the removal of the holder of a public office... 1d, at 287 n.10 (emphasis in original). “A party will be permitted to bring an alternative action to the remedy of quo warranrto where the Attorney General and the local district attomey refuse to bring such an action or ifit would be a fulile exercise to seek the approval of these officials.” dat 286-87. 45 North George Street, York, Pennsylvania 17401 . Tel: (717)771-9600 + Fax: (717)71-9738attorney refuse to bring such an action or if it would be a futile exercise to seek the approval of these officials.” Id, at 286-87. Reed v. Harrisburg City Council, 995 A.2d 1137, 1139 (Pa. 2010). When both the Attomey General and local district attotney refuse to initiate a guo warranto action, a private person will have standing to seek the removal of a public officer through a suit in equity. Andresjwskt v. Borough of Millvale, 673 .2d 879, 881 (Pa, 1996), citing League of Women Voters v. Bd. Of Comm'rs, 301 A.24 797, 799 (Pa. 1973). Next, I must note the timeline of the filing by Plaintiffs in this matter. Plaintiff's Complaint in Quo Watranto and Petition for Preliminary Injunction and Permanent Injunction were filed on December 28, 2017, Contrary to the procedural characterization by Defendant, Plaintif’s filing occured after both the Office of Attomey General (OAG) and this office refused to initiate quo warranto action. In fact, then-Distriet Attorney Tom Keamey publically stated that he and this office could not participate in such an action at that time due to a conflict, of interest. This conflict occurred due to then-DA Keamney’s prior representation of Defendant concerning his 1991 felony drug conviction. This conflict also existed in 2011 and 2012 during the litigation of Bracey v. Helfrich, 2011-SU-5007-47, ‘Then-DA Kearney referred this matter to OAG due to the conflict of interest. Prior to December 28, 2017, OAG refused to initiate « quo warranto action. OAG stated that their policy is to leave local removal of office matters to the county district attomey. OAG noted that the conflict possessed by then-DA Keamey would expire upon my taking office on January 2, 2018, ‘Therefore, OAG refused to take any further action and chose to leave any quo warranto decisions regarding Defendant to me upon assuming office, It was in the interim between the DA-Keamey and OAG refusing to file a quo warranto complaint against Defendant and my taking office that Plaintiffs initiated their actions on December 28, 2017. Accordingly, 1 view Plaintifis as having standing (o initiate a suit in equity oon that date, As noted previously, Defendant challenges that standing currently because | am now District Attomey and the prior refusal to act by then-DA Kearney should not be binding on me. Whether or not I am bound by the refusal to initiate a quo warranto action by then-DA Kearney neither impacts nor controls my refusal to file a complaint in quo warranto against Defendant ‘and my recognition of standing by Plaintiffs. My decision to refuse to participate in any quo warvanto suit against Defendant is based ‘upon my recognition that Plaintiffs lawully brought forth a suit challenging Defendant's qualifications when the public officers charged with filing quo. warranto actions, OAG and this office, refused to do so, This letter to counsel will serve to eliminate any procedural delays or obstacles to this matter. I do strongly assert that my refusal on behalf of this office to file a quo warranto action should not be viewed as a comment either in favor or against the complaint and petition filed by Plaintiffs against Defendant. My refusal also should not be viewed by any member of the public ene enna ane :as how this office will proceed in the fulure regarding individuals with felony convictions seeking and obtaining a public office. Rather, my decision is based upon the unique and pevticular procedural bislory involving Defendant’s qualifications generally, and this suit ied by Plaintifts ageinst Defendant specifically. 1 do not view the litigation regarding Defendant's qualifications to serve office, past or present, as binding mandatory precedent towards how this office will proceed concerning future actions involving other individuals unless and until an appellate court hears this case and issues a rule of law based upon the facts in controversy. Any public comment by me regarding this issue at this time will be within the scope of this letter provided to counsel. I thank you for your time and attention to this matter. David W. Sunday District Attorney