New York Legislature. Photo Credit: Shutterstock

New York State lawmakers. in passing a bill to enact a watchdog commission for complaints of misconduct against the state's prosecutors, may have violated a stipulation agreed on in a lawsuit filed by the state district attorneys' association, those involved in the litigation said Wednesday.

The District Attorneys Association of the State of New York, the lead plaintiff in the lawsuit, is now planning to move for a preliminary injunction to block public officials from acting to establish the commission.

The stipulation, agreed to last month, required state lawmakers to provide regular updates on the status of the legislation to DAASNY. But, according to Albany County District Attorney David Soares, president of DAASNY, the group never received notice when lawmakers were laying the groundwork to introduce and pass the bill, which was approved last Tuesday.

Lawmakers were also required under the stipulation to inform DAASNY when the bill was assigned to a committee, passed that committee, and was approved by the state Legislature. They were not informed, according to Soares, who said they will now be advancing their litigation, starting with the motion for an injunction.

“Unfortunately, the Legislature did not follow the spirit of the stipulation that was signed, which would have given DAASNY visibility into the bill before the votes,” Soares said. “In the mutual interest of justice they did not consult DAASNY or our attorneys. Our next step is to amend our original lawsuit and seek an injunction, once again preventing this unconstitutional commission from being created.”

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

Press officers for Gov. Andrew Cuomo, Assembly Speaker Carl Heastie, D-Bronx, and Senate Majority Leader Andrea Stewart-Cousins, D-Westchester, did not comment on the alleged violation.

The alleged breach will not have any immediate effect on the litigation. There is no recourse DAASNY can take beyond filing for an injunction and pushing forward with its lawsuit against the state, according to the stipulation. It could, however, give attorneys for DAASNY some ammo in court to show the Legislature's contempt for their position on the issue.

DAASNY sued Cuomo and the leaders of each party in the state Legislature in October over the constitutionality of the so-called Commission on Prosecutorial Conduct. The panel would be tasked with reviewing complaints of misconduct that involve the state's prosecutors and imposing or recommending sanctions against them when wrongdoing is found.

The lawsuit, in its current form, is against a bill passed by the Legislature in June and signed into law by Cuomo in August that created the commission. The legislation was met with constitutional concerns, both from the state's prosecutors and the state attorney general's office. Cuomo, in an effort to correct those concerns while still approving the legislation, signed the bill with a promise from lawmakers to amend it in January.

DAASNY agreed in the stipulation, approved by the court in December, to hold off on their lawsuit until lawmakers passed that amendment. In exchange, Cuomo and lawmakers agreed to give DAASNY at least a month and a half of notice before they appointed anyone to the commission. They also agreed to keep them updated on the status of the proposed changes.

The amendment, which was outlined broadly by Cuomo and state lawmakers in August, was intended to correct the constitutional concerns identified by DAASNY and the attorney general's office. But the amended law still doesn't align with the state constitution, Soares said, which will be reflected in their forthcoming amended complaint.

“It is unfortunate that the Legislature could not find a constitutionally permissible framework for this bill, which protects the independence of all DAs statewide and places our hardworking assistant DAs on equal footing with other attorneys in the state,” Soares said. “We laid out in fine detail all of the constitutional defects inherent in the bill and yet both houses again voted on an unconstitutional piece of legislation, which failed to correct even obvious infirmities identified by the Attorney General's Office.”

The amendment corrected some—but not all—of the constitutional flaws alleged by DAASNY in its lawsuit from October. It largely gave more power over the commission to Cuomo by giving him more appointments to the panel than any other individual. The law previously gave the Legislature more appointments than Cuomo.

The Attorney General's Office said that could be interpreted as unconstitutional since it would give that branch of government power over the state's district attorneys, who are considered part of the executive branch.

The amendment also tasked the state's four Appellate Divisions of the State Supreme Court with reviewing the commission's decisions if requested by a sanctioned prosecutor. The original law left that up to the Court of Appeals, which was also determined to be unconstitutional by the Attorney General's Office.

Many other constitutional flaws DAASNY claimed in their lawsuit remain in the law. The organization has argued that the law failed to set any standards for the commission to initiate an investigation and determine an appropriate sanction against a prosecutor, for example, which could be seen as a violation of due process, according to their complaint.

Cuomo and state lawmakers hired outside counsel last year to defend against the lawsuit after the state Attorney General's Office chose not to get involved in the litigation.

Cuomo retained Jim McGuire and Daniel Sullivan, partners at Holwell Shuster & Goldberg in Manhattan; Stewart-Cousins is represented by Benjamin Hill, a solo practitioner in Albany; and Heastie is represented by Andrew Rossman, Kathleen Sullivan, and Alex Spiro, all partners at Quinn Emanuel Urquhart & Sullivan in Manhattan.

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