Albany Judge Strikes Down Prosecutorial Watchdog Commission
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The New York State Capitol in Albany
Photo: Joe Landor, WMHT

A law that would have convened a special panel to evaluate complaints of misconduct levied against the state’s prosecutors was struck down late Tuesday by a state judge in Albany, who said the measure was unconstitutional as written by the Legislature.

Acting Supreme Court Justice David Weinstein wrote that parts of the law which handed new tasks to the state’s appellate courts couldn’t survive judicial review, which sunk the entire statute.

The law would have allowed for the creation of the Commission on Prosecutorial Conduct, a special panel of appointees that would have reviewed complaints of misconduct against the state’s prosecutors and either sanctioned them or recommended their removal.

It was approved twice by the Legislature. Gov. Andrew Cuomo approved the first version nearly two years ago with a promise from lawmakers to pass a second version with some constitutional fixes. They did so last year.

But those changes weren’t enough to satisfy local district attorneys that the law could pass constitutional muster. The District Attorneys Association of the State of New York sued over the measure, which resulted in Weinstein’s decision Tuesday.

DAASNY is represented pro bono in the suit by Jim Walden and Jacob Gardener from Walden Macht & Haran in Manhattan.

The law includes a provision that gave Weinstein the option to strike down part of the statute, while upholding others. But the law couldn’t survive his ruling, he said.

“Based on the plain intent of the Legislature, I find that the attempt to use the Judiciary branch, through reference to the presiding justices of the Appellate Division, to be at the core of the statute and so interwoven that my ruling herin essentially removes provisions at the heart of the legislation,” Weinstein wrote.

The law would have allowed a prosecutor to essentially appeal a decision from the Commission on Prosecutorial Conduct to the state’s appellate courts. The four presiding justices of the Appellate Division would form a new, unprecedented panel to review the appeal.

DAASNY had argued in its lawsuit that the Legislature didn’t have the authority to assign such a task to the presiding justices of the Appellate Division.

Weinstein agreed in his decision Tuesday. He said that the presiding justice of each of the state’s four appellate courts were only allowed, constitutionally, to handle matters within their own jurisdiction. In other words, they couldn’t team up to review the commission’s work.

“There is nothing on the Constitution which would allow the Legislature to cobble together particular judges from each Appellate Division and vest this new body with jurisdiction nowhere provided for in the Constitution itself,” Weinstein said.

Weinstein also wrote that the Commission on Prosecutorial Conduct, as written, would infringe on the jurisdiction of the state’s appellate courts over attorney misconduct.

That’s because each Appellate Division in the state has its own Attorney Grievance Committee, which is already tasked with handling complaints of misconduct filed against lawyers, including prosecutors. Those committees currently have exclusive jurisdiction over attorney discipline.

If the Commission on Prosecutorial Conduct were to be formed, there could be a situation where its decision on a prosecutor’s alleged misconduct contradicts the findings of an Attorney Grievance Committee. That’s not lawful, Weinstein wrote.

“Under the law as enacted the conduct could be referred to both the disciplinary committee of Appellate Division and the CPC, with the former determining no violation had occurred, and latter censuring the prosecutor,” Weinstein wrote. “It is hard to see how this does not reduce the jurisdiction of the Appellate Division to pronounce on such questions.”

Those flaws were enough for Weinstein to strike down the law, but he actually interpreted several of the provisions challenged by DAASNY to be constitutional.

The group had claimed the panel wasn’t lawful, for example, because it would be composed of appointees from each branch of government, but have power over only one branch. District attorneys are considered part of the executive branch.

In that case, Weinstein wrote that he was unconvinced a challenge over the separation of powers between branches of government was valid.

DAASNY had initially filed its lawsuit against Gov. Andrew Cuomo and the party leaders in both chambers of the Legislature. But in a series of stipulations and allowances, only one defendant remained on the litigation as of last year: Assembly Speaker Carl Heastie, D-Bronx.

Heastie is represented in the lawsuit by attorneys from law firm Quinn Emanuel, who didn’t immediately comment on the ruling Tuesday evening.

Tina Luongo, attorney-in-charge of the criminal defense practice at the Legal Aid Society, a major proponent of the legislation, said they were disappointed in the ruling in a statement Tuesday.

"There must be an independent body to hold prosecutor’s accountable when they break the law or act in bad faith," Luongo said. "This decision will not stop the movement for real accountability."

The decision leaves two paths for the Legislature if they want to move forward with enacting the Commission on Prosecutorial Conduct. They could either appeal the ruling and take their chances at the Appellate Division, or amend the law to address Weinstein’s ruling.