Albany District Attorney David Soares. Photo: Tim Roske

New York state's district attorneys argued in a new court filing that if there's any question whether a special commission to review complaints of prosecutorial misconduct would be unconstitutional, the court should look no further than the state officials who've decided not to defend it.

The District Attorneys Association of the State of New York laid out its laundry list of reasons why the law should be struck down in a new motion for summary judgment filed this week.

The organization, which represents the state's prosecutors, was quick to point out in the filing that, as of early June, all but one state official had decided against defending its constitutionality in court. Assembly Speaker Carl Heastie, D-Bronx, is the last remaining defendant.

“Most of the Defendants either explicitly or implicitly agreed, as all but one has declined to defend the statute in these proceedings,” the filing said. “For good reason. Despite its laudatory purpose, Article 15-A is legally indefensible.”

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

Heastie is represented by Andrew Rossman, Kathleen Sullivan and Alex Spiro, all partners at Quinn Emanuel Urquhart & Sullivan in Manhattan. Rossman said Heastie's expectation that the Commission on Prosecutorial Conduct will survive judicial review hasn't wavered.

“The Assembly remains confident in the constitutionality of this important commission,” Rossman said. “That is why the Legislature passed a bill to create it and it was signed into law. This is a meritless lawsuit and we look forward to defending it in court.”

The commission, as of now, has been put on hold despite becoming law at the end of March. That's when Gov. Andrew Cuomo signed a second bill to create the panel, after the first was found to have significant constitutional flaws by the state Attorney General's Office.

But Cuomo, along with Senate Majority Leader Andrea Stewart-Cousins and Senate Republican Leader John Flanagan, entered into stipulation agreements with DAASNY in early June that stopped the commission from being formed. They agreed not to defend it in court or make any appointments until the lawsuit from DAASNY was resolved.

Assembly Republican Leader Brian Kolb was removed as a defendant because he hadn't supported any version of the commission that came before the Legislature.

The law allows Cuomo, Chief Judge Janet DiFiore, and the four party leaders in the Legislature to appoint individuals to an 11-member panel tasked with reviewing complaints of misconduct leveled at the state's prosecutors.

The idea had been kicked around by state lawmakers for the past few years, with warnings from prosecutors during that time that the commission would be both unconstitutional and unnecessary. Attorneys, including prosecutors, are already subject to disciplinary proceedings conducted by the state's Attorney Grievance Committees.

Supporters of the panel have argued that prosecutors should have an extra layer of accountability. The state's four Grievance Committees, housed under the appellate courts, lack the transparency and expediency that the commission was expected to have, they've claimed.

DAASNY has conceded that the Attorney Grievance Committees could be improved, and even advocated for that to happen in place of the Commission on Prosecutorial Conduct. Lawmakers, instead, chose the latter option, which was subsequently challenged in court by DAASNY and its former president, Albany County District Attorney David Soares.

The group's new motion filed this week, formally seeking that the commission be declared unconstitutional, hits all the same points they've argued since the bill became law earlier this year.

“The current version of Article 15-A, like its nearly identical predecessor, is riddled with fatal constitutional defects, as the [Attorney General's Office] and multiple Defendants who are no longer in this case have conceded,” the motion said.

Chief among the motion's arguments for striking down the law is how it would allegedly impact the work of prosecutors in New York. Rather than pursue difficult prosecutions to the fullest extent of the law, district attorneys may act with more leniency to avoid scrutiny by the commission, the motion argued.

“The CPC's unbridled oversight authority, combined with its power to destroy a prosecutor's career and … compromise criminal cases, will impair prosecutorial independence and chill lawful conduct that meets (or may be feared as meeting) with the CPC's disapproval,” the motion said.

DAASNY also argued that the commission would both violate the separation of powers between branches of state government and unlawfully expand the power of the state judiciary.

That's because, of the panel's 11 members, DiFiore and the Legislature will have seven appointments. That's unconstitutional, the motion said, because it will give those two branches of government power over the executive branch, under which the state's district attorneys fall.

“Some of the CPC appointees will surely be politically motivated to use those powers robustly,” the motion said. “Such encroachment on executive power is forbidden.”

The motion also challenged DiFiore's appointments, in general, saying that her position doesn't have that sort of authority as outlined in the state constitution.

The same argument was made in the motion about the Appellate Division, whose presiding justices are tasked with reviewing the commission's decision if requested by the prosecutor in question. Giving them that task both expands their power beyond what's been prescribed, while also unlawfully removing the function of the Attorney Grievance Committees, the motion said.

“Unlike the constitutionally permissible attorney grievance committees, the CPC is not an arm of the Appellate Division,” the motion said. “It is not even part of the judiciary.”

The motion also outlined several of DAASNY's other arguments against the commission, of which there are many. They've claimed that the panel can't stand because it's not overseen by any state agency or official, for example.

Attorneys for Heastie are expected to respond to the motion in the coming weeks.

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