Albany County District Attorney David Soares, president of DAASNY. Photo Credit: Tim Roske

The District Attorneys Association of New York and some individual prosecutors filed a complaint against Gov. Andrew Cuomo and the leaders of both state legislative chambers on Wednesday, challenging the constitutionality of a new law that creates a special commission to investigate claims of prosecutorial misconduct.

The complaint, filed in Albany County Supreme Court, alleges that the law violates the separation of powers between the three branches of state government by giving the Legislature and Court of Appeals power over district attorneys, who are executive officials.

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

Albany County District Attorney David Soares, president of DAASNY, said in a statement that the state forced its hand when Cuomo signed the legislation, which prosecutors had long warned is unconstitutional. Soares and Assistant District Attorney Robert Masters from Queens are also plaintiffs on the suit.

“This legislation has numerous constitutional impediments and would violate the separation of powers. DAASNY is committed to upholding our Constitution and therefore we have no choice but to file this lawsuit,” Soares said. “Prosecutors take an oath to defend the Constitution and every day in courtrooms all over the state we do just that. It is because of that oath that we are pursuing this litigation.”

The 27-page complaint criticizes the legislation's legality, which was also called into question earlier this year in a memo to Cuomo's office from Leslie Dubeck, general counsel to state Attorney General Barbara Underwood. She wrote that the bill would not likely survive judicial review as written.

The lawsuit filed on Wednesday is based on that version of the bill, which Cuomo signed into law in August. Lawmakers have said they will pass an amended version of the bill in January to address some of the constitutional concerns previously raised, but the language of that amendment has not been made available.

A spokesman for Cuomo said Wednesday evening they were confident the lawsuit would be defeated.

“We believe in a fair and equal justice system that places no one above the law and ensures officers of the court are held accountable to upholding this fundamental standard,” said Tyrone Stevens, a Cuomo spokesman. “While we haven't been served with any lawsuit, we are confident this bipartisan and groundbreaking agreement will withstand legal challenge.”

DAASNY acknowledged in the complaint that Cuomo and lawmakers have pledged an amended version, but said the court should set aside that decision in determining the law's constitutionality. The bill has, so far, not been changed, DAASNY said, and there's no guarantee that it will be as soon as the Legislature reconvenes in January.

“Although the Governor apparently anticipated work on [the law] to cure some of the constitutional infirmities, the legislation remains unmodified and an upcoming election makes additional work highly unlikely,” the complaint said.

Even if lawmakers pass the amended version of the bill when they first gavel in next year, several parts of the law will still remain that DAASNY has interpreted as unconstitutional, according to the complaint.

“Even if enacted, these desired amendments would not cure any of the law's numerous other constitutional defects,” the complaint said.

DAASNY is asking for a preliminary injunction against the legislation while the court determines its constitutionality. The law is scheduled to take effect in January.

The complaint said if the law signed by Cuomo in August is upheld as constitutional, the independence and due process of prosecutors in New York could be threatened, along with the power of voters who elect them.

“If the law is allowed to stand, the independence of District Attorneys will be threatened, the role of the judiciary altered, the performance of law enforcement duties chilled, the due process and equal protection rights of prosecutors violated, the entitlement of voters to a District Attorney responsive to their needs undermined, and the integrity of our constitutional system compromised,” the complaint said.

DAASNY said the law fails to set any standards for the commission to initiate an investigation and determine the appropriate sanction against a prosecutor, which could be seen as a violation of due process, according to the complaint.

“[The law] fails to identify any standards by which the CPC is to decide whether to initiate an investigation, find that a complaint has been sustained, or determine whether or how to impose disciplinary sanctions against a prosecutor,” the complaint said.

The complaint also argued against the commission's ability by statute to hold hearings and gather testimony from witnesses regardless of any sensitive information that could be exposed. Those actions could compromise the ability of district attorneys to prosecute at their own discretion, DAASNY argued.

“The framers of the State Constitution sought to ensure that elected District Attorneys, and only elected District Attorneys, would possess the power to determine whom, whether, and how to prosecute,” the complaint said.

Some documents involving an investigation or grand jury proceeding, for example, are generally considered confidential. DAASNY said in the complaint that disclosing such information to the commission as part of an investigation could threaten the privacy and safety of witnesses, undercover officers, victims, and more.

The amendment that lawmakers are expected to approve next year is supposed to address that concern, though the mechanism to do so is unclear. Cuomo's approval message said the changes would protect victims, witnesses, and the work of prosecutors.

The complaint also alleged the measure will create an imbalance of the separation of powers between district attorneys, the Legislature and the Court of Appeals.

The bill establishing the commission allows the Legislature to appoint six of its 11 members. Prosecutors claim in the complaint that granting the majority of appointments to the legislative branch of government is unconstitutional because the commission was created to discipline district attorneys, which are part of the executive branch.

That was also addressed in the proposed amendment. The exact apportionment to the commission from each branch of government is unknown, but no one has more members than the executive branch, according to the Cuomo administration.

The complaint also questions the constitutionality of having the Court of Appeals review the commission's decisions if requested by a prosecutor and either affirming or changing them, which is not a function designated to the high court in the state constitution. In the bill's amended version, that responsibility is instead expected to fall to the Appellate Division.

DAASNY also claimed that Chief Judge Janet DiFiore should not be allowed to appoint judges to the commission because she would be assigning a nonjudicial task to the appointees. The proposed amendment is expected to allow DiFiore to appoint retired judges instead of active judges to address that issue, though the complaint also questions whether she is even constitutionally allowed to appoint members to a nonjudicial commission.

The law was passed by state lawmakers in June during the final days of this year's legislative session. The bill's sponsors, Assemblyman Nick Perry, D-Brooklyn, and Sen. John DeFrancisco, R-Syracuse, argued that the commission would cut down on the number of wrongful convictions and exonerations in New York by addressing cases where a prosecutor may have acted inappropriately.

Prosecutors have argued that a process already exists to discipline district attorneys that adheres to the constitution. Each Appellate Division has a Grievance Committee that accepts complaints and recommends sanctions against attorneys, including prosecutors. They argued that those committees should be strengthened rather than creating a new commission to investigate prosecutorial misconduct.

The commission is expected to cost $5.5 million, according to the original legislation.

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