Andrew Cuomo. Photo: Mark Reinstein/Shutterstock.com

Gov. Andrew Cuomo approved legislation on Wednesday that is set to create a special commission to review complaints of misconduct against the state's district attorneys.

The commission would go into effect under the new law, unless a lawsuit challenging the legislation strikes it down as unconstitutional.

It's the second time Cuomo has signed legislation to create the commission after a previous version of the bill was criticized by the state attorney general's office and prosecutors as unconstitutional.

But the District Attorneys Association of the State of New York wrote in a letter to Cuomo this week that the new version of the bill still contains several constitutional flaws that it intends to challenge in court. The lawsuit against the first iteration of the bill was put on hold in December while lawmakers composed the amended version.

Cuomo mentioned the litigation in his approval memo with the bill and acknowledged that there still may be constitutional flaws in the legislation. He blamed the Legislature for allowing those alleged flaws to remain in the bill before delivering it to him for a signature.

“Previously unidentified infirmities — including constitutional separation of powers concerns with both the executive and judiciary — that leave this law vulnerable to legal attack have come into sharp focus with the passage of time and attention to the ongoing legal challenge,” Cuomo wrote. “Still, the Legislature remains unconvinced that changes recommended by the Executive are necessary and determined it best to deliver the bill unchanged.”

He said that he chose to approve the amended bill because he agreed with the intent of the commission, even if constitutional flaws still remained in the legislation.

“Despite my desire for a bill strong-suited for the legal challenges that it will surely confront, my commitment to the creation of this Commission and the promise that it brings for a more transparent and just criminal justice system remains unshaken,” Cuomo wrote.

DAASNY is represented in its lawsuit against the legislation pro bono by Jim Walden and Jacob Gardener from Walden, Macht & Haran in Manhattan. Walden said in a statement he was confident the bill would be deemed unconstitutional.

“The Governor has an obligation to sign only constitutionally valid laws. Today's approval letter is yet another recognition that this bill will fail constitutional scrutiny,” Walden said. “While we sincerely wish to work with the legislature and the Governor on sensible—and constitutional—reforms, we remain committed to fighting this infirm bill.”

Cuomo had signed the first version of the bill with a promise from lawmakers to pass new legislation aimed at curing some of the constitutional defects when they returned to Albany for the legislative session in January. Lawmakers followed through on that promise, but didn't send the bill to Cuomo for a signature until earlier this month.

His approval of the legislation shouldn't come as a surprise; Cuomo's office helped negotiate the proposed changes to the bill when he signed the original version in August. Language on those changes wasn't released until January, but they largely reflected the broader points he made when he signed the first version.

The panel, called the Commission on Prosecutorial Conduct, will be composed of 11 members appointed by Cuomo, party leaders in the state Legislature, and Chief Judge Janet DiFiore.

Cuomo will be allowed four appointments to the panel, which have to be evenly divided between public defenders and either active or retired prosecutors. Each of his appointments are required to have at least five years of experience in their respective areas of law.

DiFiore will make three appointments to the commission, two of which will have to be retired judges. One of those judges will have to have experience providing public defender services while the other must have similar prosecutorial experience. DiFiore's third appointment is required to be an academic from an accredited law school with experience in criminal law.

The remaining four appointments will be made by party leaders in the state Legislature. Those four appointees have to be evenly split between defenders and either former or active prosecutors. The majority party leader in each chamber will be allowed to make their appointments to the commission first.

That composition was partly to quell constitutional concerns over the previous bill, which gave the majority of the appointments to the Legislature. Prosecutors took issue with the Legislature essentially controlling the majority vote of a panel that will discipline the state's district attorneys, who are considered part of the executive branch.

But the new make-up is still considered unconstitutional by DAASNY. Albany County District Attorney David Soares, the current president of the group, argued in its letter to Cuomo this week that allowing a panel with appointees from each branch of government to discipline officials from a single branch is still unconstitutional.

The commission, which could be formed anytime after April 1, will be tasked with reviewing complaints of misconduct against the state's prosecutors and imposing sanctions on those officials. It will have the power to subpoena witnesses and require books, records, documents, and other evidence to be reproduced for the purposes of its investigation.

After the probe is complete, each member of the commission will have a vote on whether a prosecutor should be sanctioned. That sanction can range anywhere from a public censure to recommending that the prosecutor be removed from office by the governor, who's the only state official with the power to do so.

If the prosecutor wants to challenge the commission's decision, he or she can ask the local Appellate Division of the State Supreme Court to review its determination. The court will be allowed to affirm, reject or even modify the level of sanction recommended by the commission. If removal is recommended, the court will also be tasked with delivering that decision to Cuomo.

DAASNY has several other constitutional concerns over both the structure and the operations of the panel, many of which weren't changed in the new version of the legislation.

Soares argued in the letter to Cuomo earlier this week that the commission could unconstitutionally interfere with the work of district attorneys, who may be less willing to pursue difficult prosecutions out of concerns that their operations would be under the scrutiny of a hybrid panel.

“These consequences will chill lawful prosecutorial conduct, impair prosecutorial discretion, and interfere with the operation of District Attorneys' offices,” Soares wrote.

Prosecutors also have concerns over the alleged due process and equal protection violations that they argue would come with the legislation. The state's lawyers, including prosecutors, are ordinarily disciplined by a set of Grievance Committees in each of the state's appellate courts. The commission will impose a separate, unconstitutional process for disciplining prosecutors, Soares argued.

He also said the bill would unconstitutionally expand the power of the judiciary over the state's prosecutors. Allowing DiFiore and the Appellate Divisions to play a role in the commission would expand their function beyond what's prescribed in the state constitution, Soares said.

DAASNY is expected to outline those concerns in court in the near future. It is expected to file for a preliminary injunction to stop the commission from being created and amend its lawsuit to reflect the new legislation.

The idea of the commission has been lauded by organizations representing defense attorneys, including the Legal Aid Society. Tina Luongo, attorney-in-charge of the criminal defense practice at Legal Aid, celebrated the bill's approval in a statement Wednesday.

“With this legislation, New York will become the first state in the nation to establish a separate and dedicated commission to investigate prosecutors who may have violated ethical and professional rules,” Luongo said. “Up until this moment, there has been no viable tool to hold prosecutors accountable who break the law or act in bad faith and ruin lives. This is a critical step toward avoiding wrongful incarceration and an effective way to help prevent future misconduct.”