Andrew M. Cuomo. Photo: Rick Kopstein

Gov. Andrew Cuomo and top lawmakers in the state legislature have hired attorneys to defend them in a lawsuit against legislation that will create a special commission to investigate cases of misconduct by the state's prosecutors.

The state attorney general's office, which would usually appear for the governor and state lawmakers in such litigation, is not representing any of the defendants in the litigation at this time, a spokeswoman confirmed.

That shouldn't come as a surprise to anyone who has followed the legislation since it was approved by the state Legislature in June.

After constitutional concerns were raised by the state's district attorneys, Cuomo's office requested a review of the legislation from the attorney general's office before approving the bill. Leslie Dubeck, general counsel to New York Attorney General Barbara Underwood, wrote weeks later to Cuomo's office that the legislation would likely not survive judicial review as written.

Cuomo and state lawmakers then agreed to pass changes to the legislation next January addressing some, but not all, of Dubeck's concerns. In what's called a “chapter amendment” Cuomo signed the bill as it was written with a promise from lawmakers to approve those revisions at the next earliest opportunity.

The District Attorneys Association of the State of New York then filed a complaint against Cuomo and legislative leaders in both the State Senate and Assembly in October over the constitutionality of the legislation as it's currently written. The litigation does not account for the changes expected to be passed in January.

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

Litigators held a telephone conference with Albany Supreme Court Justice David Weinstein last week on a motion filed by DAASNY for a preliminary injunction against the commission. Attorneys for the defendants in the case were identified at that time.

Cuomo has retained Jim McGuire and Daniel Sullivan, partners at Holwell Shuster & Goldberg in Manhattan; Senate Republican Leader John Flanagan is represented by Michael Hutter, special counsel at Powers & Santola in Albany; Senate Democratic Leader Andrea Stewart-Cousins is represented by Benjamin Hill, a solo practitioner in Albany; Assembly Speaker Carl Heastie is represented by Andrew Rossman, Kathleen Sullivan, and Alex Spiro, all partners at Quinn Emanuel Urquhart & Sullivan in Manhattan; and Assembly Republican Leader Brian Kolb is represented by David Morgen, principal at Hinman Straub in Albany.

The State of New York and the Commission on Prosecutorial Conduct, which are also named in the complaint, do not appear to be represented at this time.

Another phone conference is scheduled between the litigants Friday. If no stipulation is reached between the parties, Cuomo and the other defendants will file their answer to the complaint and their opposition to a preliminary injunction against the commission by Dec. 10. A reply brief from DAASNY will be due a week later.

Albany County District Attorney David Soares, the current president of DAASNY, is also a named plaintiff in the lawsuit. He said they remain confident in their case against the legislation.

“As the court considers our motion to halt the formation of the Commission on Prosecutorial Conduct, we remain confident that this poorly crafted and unconstitutional piece of legislation will be invalidated,” Soares said. “The bill violates our State Constitution in multiple ways and is unworkable in its current form.”

The Commission on Prosecutorial Conduct is scheduled to be formed in January, according to the legislation Cuomo signed in August. The 11-member panel will be tasked with reviewing complaints of misconduct by the state's prosecutors and recommending disciplinary actions to Cuomo, who, as governor, has the power to sanction or remove a district attorney from office.

But what the commission will look like in January is unclear. Lawmakers have yet to release language on the amendment they plan to pass in January. Cuomo only broadly outlined what would be modified in his approval message with the bill.

The amendment is expected to change the composition of the commission to address some of Dubeck's constitutional concerns.

The number of appointees to the commission each branch of government will be allowed is expected to shift in favor of the governor, for example. That was to address concerns over the legislature having a majority of the appointments, which would theoretically give them power over district attorneys, who are considered executive officers.

Chief Judge Janet DiFiore will also be allowed to appoint retired judges to the commission, rather than active judges as the original legislation required. There were concerns over tasking active judges with such a role outside their work in judicial office.

Those, among other changes, are expected to cure some of the constitutional concerns expressed by Dubeck and the state's district attorneys, but DAASNY has said it will still mount a challenge to the legislation after the amendment is passed.

It has long argued that lawmakers should, instead, improve the current process for disciplining attorneys in New York. Each Appellate Division has a Grievance Committee that currently reviews complaints of misconduct against lawyers, including district attorneys and their assistants.

Those committees are able to recommend penalties for misconduct, but have been criticized by defense attorney groups for a lack of transparency when it comes to complaints against prosecutors.

Soares said his organization is still willing to work with state lawmakers on ways to improve the current system instead of having a special commission to address complaints of misconduct specifically by the state's prosecutors.

“As we approach the upcoming legislative session, DAASNY remains committed to assisting our lawmakers in creating a better and more transparent grievance system for all attorneys,” Soares said.

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