New York Gov. Andrew Cuomo. (AP Photo/Hans Pennink)

Nearly a year after state lawmakers in New York decided to create a special panel to review allegations of prosecutorial misconduct, Gov. Andrew Cuomo and all but one party leader in the Legislature have agreed to halt its creation pending the outcome of a lawsuit challenging its constitutionality.

Court papers obtained by the New York Law Journal show that Cuomo, Senate Majority Leader Andrea Stewart-Cousins, Senate Republican Leader John Flanagan, and Assembly Republican Leader Brian Kolb have agreed not to defend the law in court and will halt the creation of a watchdog until the litigation is resolved.

The District Attorneys Association of the State of New York, which brought the lawsuit in October, has agreed to drop them from the litigation as part of a series of stipulations exchanged late last week.

Under the law created last year, and amended in January by the Legislature, each of those parties would have appointments to the so-called Commission on Prosecutorial Conduct. They've now agreed not to exercise that authority until the panel's constitutionality is decided by a judge, according to the documents.

Each stipulation is identical, minus the names of those parties. They're each represented by different private attorneys. The state Attorney General's Office declined to defend the law's constitutionality after the lawsuit was brought last year.

The documents say each lawmaker “is neither a necessary nor indispensable party to this lawsuit” and has agreed not to exercise his or her “authority under Article 15-A to appoint any commissioners to the CPC prior to the issuance of a final order or judgment by Supreme Court, Albany County, in this action.”

Albany County District Attorney David Soares, the current president of DAASNY who's also a plaintiff on the suit, said they felt “vindicated” by the agreements.

“We are pleased that these elected officials have wisely agreed not to move forward with this blatantly unconstitutional Commission while our lawsuit proceeds,” Soares said. “Our position on the unconstitutionality of the act creating the Commission was vindicated by their decision not to defend it.”

The only lawmaker that has agreed to stay in the lawsuit and defend the commission is Assembly Speaker Carl Heastie, a Bronx Democrat who is represented by Andrew Rossman, Kathleen Sullivan, and Alex Spiro, all partners at Quinn Emanuel Urquhart & Sullivan in Manhattan.

Representatives for Heastie could not immediately be reached for comment Sunday.

It's the latest development in what has been a nearly yearlong debate over the law's constitutionality.

Lawmakers first approved legislation last June to create the commission, but the bill was met with fierce criticism from the Attorney General's Office. Leslie Dubeck, previously counsel to former New York Attorney General Barbara Underwood, wrote in July that it would likely not survive judicial review as written.

Cuomo signed the legislation about a month later with a promise from lawmakers to approve an amendment at their next earliest opportunity that would cure the constitutional defects identified by Dubeck. That turned out to be January, on the same day as Cuomo's State of the State address.

The new version largely mirrored what lawmakers passed initially, but included a few tweaks to address Dubeck's analysis. More appointments were given to Cuomo than in the previous version, for example, to assuage concerns over the Legislature appointing the majority of a body designed to oversee the state's prosecutors, who are considered part of the executive branch.

But when Cuomo signed the amended version into the law in March, he conceded that constitutional flaws in the legislation were still apparent despite the round of changes.

“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.”

DAASNY has since filed a new version of its lawsuit that still identified several concerns over the law's constitutionality. It's argued, for example, that the commission could prevent district attorneys from pursuing difficult prosecutions out of concerns that their work would be scrutinize by a panel of appointees from multiple branches of state government.

Cuomo, Stewart-Cousins, Flanagan, and Kolb will no longer have to defend the constitutionality of the law, per the stipulation agreements. A spokesman for Flanagan declined to comment, citing the pending litigation.

Kolb, who didn't support either iteration of the commission, was dropped from the litigation by DAASNY without a stipulation agreement, his office said. He echoed the group's position in a statement Sunday.

“I voted against the original bill, and legislation to make modifications. The District Attorneys Association has raised serious concerns with the proposal and it appears the stipulation has done little to provide any reassurance,” Kolb said. “When you force public policy based solely on political motivations, the results are never positive. Creating this commission has always been a bridge too far.”

Representatives for the other lawmakers did not immediately comment on the development.

DAASNY is represented in the suit by Jim Walden and Jacob Gardener from Walden, Macht & Haran in Manhattan. They said they're looking forward to next steps in the litigation. Heastie is scheduled to file a response to the lawsuit this week.

“Now that we have finally identified the one party interested in contesting our constitutional arguments, we look forward to pressing those arguments in our upcoming motion for summary judgment,” Walden and Gardener said.

A watchdog panel, if the measure is upheld in court, would be composed of 11 members appointed by Cuomo, party leaders in the state Legislature, and Chief Judge Janet DiFiore. It would be tasked with reviewing complaints of misconduct against the state's prosecutors and imposing or recommending sanctions on those officials.

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