Albany DA David Soares. Photo Credit: Tim Roske

The judge overseeing a lawsuit against legislation creating a special commission to investigate complaints of misconduct by the state's prosecutors is encouraging the parties involved in the litigation to enter into a stipulation that would delay the panel's creation, according to a source with knowledge of the situation.

The stipulation could be agreed to and signed in the coming days and would effectively postpone the formation of the panel until some point after state lawmakers pass a bill to change parts of the commission, which is scheduled to be created in January under the current statute.

The development means the lawsuit brought against the legislation over its constitutionality by the District Attorneys Association of the State of New York would not move forward until sometime early next year. Lawmakers are set to reconvene in Albany early next month for the start of the new legislative session.

The stipulation may also delay the bill's effective date until a specified amount of time after the Legislature approves the amendment. The parties will have to come to an agreement on that delay, whether it be a month after lawmakers approve the changes or later. That gap will give attorneys for DAASNY time to review the amended version of the legislation and decide their next steps in the litigation.

DAASNY and its president, Albany County District Attorney David Soares, brought the lawsuit in October against Gov. Andrew Cuomo and top lawmakers in the State Assembly and Senate. The group is seeking a ruling on the commission's constitutionality, which it has long argued against since the bill was first proposed in 2015.

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

The parties held two conference calls with Albany Supreme Court Justice David Weinstein in recent weeks to discuss a motion for a preliminary injunction filed by DAASNY in late October. Weinstein is said to have suggested that the parties instead enter into an agreed-upon stipulation rather than proceed with a decision on the motion.

There are a few moving parts that would come with entering into a stipulation, the first being timing. The schedule for the next legislative session has not been released, though lawmakers have in recent years convened for the first time on a Wednesday in early January. Lawmakers could, in theory, vote on the amendment at some point during the first few days of session.

But as of Monday, the amended version of the legislation that would establish the commission still had not been introduced in the state's bill filing system. Lawmakers have not released the exact language on what's included in the amendment, though Cuomo outlined some of the broad changes in a memo approving the bill in August.

Cuomo and state lawmakers, at the time, agreed to what's called a “chapter amendment,” which is when the governor approves a bill with a promise from the Legislature to amend it at the next earliest opportunity.

Those changes were in response to concerns raised over the bill's constitutionality by the Attorney General's Office. Leslie Dubeck, counsel to Attorney General Barbara Underwood, wrote in August that the bill would likely not survive judicial review as written. Cuomo appeared to address some, but not all, of Dubeck's concerns in his memo approving the bill.

The lawsuit from DAASNY does not consider the amendment to the legislation, though the group has said they will bring litigation regardless of those changes. Depending on the extent of the revisions, DAASNY may choose to file an amended complaint against Cuomo and state lawmakers addressing the updated version of the legislation.

The complaint, as it was filed in October, laid out the group's concerns over separation of powers issues allegedly caused by the creation of the commission, among other issues with the law's constitutionality. DAASNY has argued that instead of enacting the commission, lawmakers should work with the state's prosecutors on ways to improve the current process for disciplining attorneys.

Each Appellate Division has a Grievance Committee that addresses complaints of misconduct by attorneys, including prosecutors. Supporters of the commission have argued that those committees do not handle complaints in a transparent or expedient matter.

Daniel Sullivan, a partner at Holwell Shuster & Goldberg in Manhattan, is representing Cuomo's office in the litigation. He did not immediately return a request for comment on Monday. Spokespeople for Cuomo also did not immediately respond to a request for comment.

The New York Law Journal, last week, exclusively reported that Cuomo and state lawmakers had hired outside counsel for the lawsuit. The Attorney General's Office is not representing any of the defendants in the litigation at this time.

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