New York state Capitol in Albany. Photo Credit: Matt H. Wade via Wikipedia

A bill that would create a state commission to investigate claims of misconduct by prosecutors may have significant constitutional flaws, the counsel to Attorney General Barbara Underwood said Monday in a memo to Gov. Andrew Cuomo's office.

In a legal analysis of the bill, which Cuomo must either approve or veto by next Monday, General Counsel Leslie Dubeck said certain provisions may not hold up in court as currently written.

Underwood's office supports the goal of the legislation, which is to hold the state's district attorneys accountable in cases of misconduct.

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The bill would create an 11-member commission of prosecutors, defense attorneys and judges to receive and investigate complaints of misconduct by the state's prosecutors. The commission would then publish its findings and refer its decision to Cuomo, who has the power to remove district attorneys from office.

The legal analysis was requested by Cuomo's office, which is commonly done to assess whether legislation would survive judicial review. Cuomo has not publicly taken a position on the legislation, which his office said is still under review.

That analysis will now include Dubeck's memo, which was sent on Monday to Alphonso David, counsel to the governor. Dubeck said in the memo the bill could be met with issues surrounding the state's constitutional separation of powers, the functions of the state's district attorneys, and could give the state judiciary more power than granted under state law.

One particular problem lies in the membership of the commission. Most of the members—six of 11—would be appointed by the Legislature, but the commission would be tasked with authority over the state's prosecutors, which are considered to have executive power. The state constitution does not allow the Legislature, or a commission with most members appointed by the Legislature, to discipline the state's prosecutors.

Dubeck also wrote that the commission may be deemed unlawful because it would exercise executive powers but exist without direct supervision from one of the state's agencies. The state constitution requires that such bodies exist under a civil department with oversight from an agency head.

The power given to the state judiciary through the bill may also be seen as unconstitutional, the memo said. The bill would require three judges to be appointed to the commission by Chief Judge Janet DiFiore. It would also allow the Court of Appeals to review any decisions made by the commission.

Both of those provisions may be considered unconstitutional, the memo said. It would task both the appointed judges and the Court of Appeals with investigating and recommending the removal of prosecutors. Those actions are considered executive tasks in the state constitution, Dubeck wrote, which would leave them outside the scope of the judiciary. The commission's work would also be considered a nonjudicial task for the appointed judges, which they might have to review later in an official capacity as a member of the judiciary.

The commission's power over district attorneys could also be interpreted as too broad as written in the bill. There is no standard in the bill for how the commission will decide to pursue and investigate a complaint received against a prosecutor. As written, the bill would give the commission broad authority to seek information on a complaint without limits, Dubeck wrote.

That alone could be seen as unconstitutional. But using that power could also impair the work of district attorneys, even if that's not the intent of the legislation, the memo said.

Prosecutors have warned that such a commission could interfere with active investigations in cases where a defendant could file a complaint and obstruct the process. A provision of the bill would block the commission from interfering with any active investigation or prosecution. Dubeck said in the memo that even though that part of the bill exists, the presence of such a commission could influence a prosecutor's decision-making process.

The commission would also make its decisions, including supporting documents, available to the public. Dubeck warned that prosecutors may change the way they work if they know documents could be released to the public at the conclusion of an investigation.

The legislation has drawn a line between prosecutors, who feel targeted by the bill, and defense attorneys, who believe it would help defendants wrongfully accused of a crime.

The District Attorneys Association of the State of New York has come out in strong opposition to the bill since it was conceived in 2015. It has argued that the bill is both unnecessary and unconstitutional.

The bill's supporters, meanwhile, argue that having a separate body to hold prosecutors accountable could reduce the number of wrongful convictions and exonerations in the state. New York has among the highest number of exonerations in the country.

The bill was passed with strong support in both the Senate and Assembly during the final days of this year's legislative session. If approved by Cuomo, the commission is scheduled to become operational in January.