New York state Assembly Speaker Carl Heastie.

Attorneys for the speaker of the New York Assembly in a new court filing used the term "meritless" to describe a legal challenge to a state commission tasked with reviewing prosecutorial misconduct claims, but also said the court could preserve certain parts of the law even if others are struck down.

The lawyers also said the status of Assembly Speaker Carl Heastie, D-Bronx, as the lone individual defendant in the suit, and the New York attorney general's recusal, has no bearing on whether the law passes constitutional muster.

Heastie is represented by Andrew Rossman, Kathleen Sullivan, William Adams and Alex Spiro, who are all partners at Quinn Emanuel Urquhart & Sullivan in Manhattan.

They filed a response, this week, to arguments against the Commission on Prosecutorial Conduct from the District Attorneys Association of the State of New York, which first sued to block the law last year.

The group has advanced several different arguments against the commission, including that it violates the separation of powers between branches of state government and will unconstitutionally interfere with the work of state prosecutors. They claimed as much in a motion to resolve the litigation in their favor filed in late July.

The new filing this week from Heastie's attorneys is a response to that motion, but also a cross-motion to uphold the law's constitutionality.

"Plaintiffs' summary judgment memorandum makes clear that their objections to Article 15-A are principally grounded in plaintiffs' policy preferences, not constitutional law," the filing said. "But a policy disagreement is no basis to invalidate a statute."

Heastie is currently the only individual defendant on the suit, though it was first brought against Gov. Andrew Cuomo, Senate Majority Leader Andrea Stewart-Cousins, Senate Republican Leader John Flanagan and Assembly Republican Leader Brian Kolb.

Each of those defendants, excluding Kolb, entered into stipulations with DAASNY earlier this year, in which they agreed not to appoint any members to the commission until the litigation is resolved. In exchange, DAASNY agreed to drop them from the suit.

Those stipulations were drawn up after Cuomo, Flanagan and Stewart-Cousins said they planned to file a motion to dismiss the litigation only on grounds that they were individually immune to such a challenge. In response, DAASNY offered the stipulation to them as a way out.

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

Kolb was removed from the litigation without a stipulation because he, unlike the other officials, never supported legislation to create the commission. Stewart-Cousins and Flanagan both voted to approve that legislation, which was signed into law by Cuomo.

Attorneys for Heastie wrote in the new filing that the stipulations agreed to by Cuomo, Flanagan and Stewart-Cousins did not indicate that they disagreed with the law's constitutionality. The attorneys also said those officials knew the law would not be left defenseless.

"Their decision to assert immunity defenses to avoid litigation (knowing that the Assembly speaker intended to litigate and that the law would therefore be defended) does not suggest the statute is unconstitutional," the filing said. "The sole upshot is simply that the Assembly speaker is effectively representing the interests of the state of New York in defending the constitutionality of a validly enacted law on its legal merits."

They also argued that a decision from the Attorney General's Office not to represent lawmakers in the litigation should hold no weight with the court. The office had warned that a previous version of the bill would likely not survive judicial review, but did not release a similar analysis on an amendment approved by lawmakers earlier this year to cure some of those concerns.

On the merits of the law, attorneys for Heastie rebuffed each point brought against it by DAASNY in its motion for summary judgment last month.

Among them were claims by DAASNY that the law will chill the discretion of state prosecutors, who may be hesitant in their actions while pursuing certain cases out of fear that they'll be scrutinized by the panel. The Legislature, DAASNY has argued, doesn't have the authority to interfere, in that way, with the work of prosecutors, who are considered executive officials.

Attorneys for Heastie argued in their new filing that DAASNY was framing the Commission on Prosecutorial Conduct incorrectly. The panel was created as an oversight tool, they argued, not one that will dictate the actions of district attorneys.

"It does not direct, let alone usurp, how prosecutors perform their duties or exercise discretion over prosecution of criminal offenses; it merely ensures that prosecutors' conduct is subject to review for compliance with ethical and professional standards," the filing said.

They also claimed DAASNY's argument about interference is premature because the commission has yet to be formed, so the situation presented is only hypothetical as of now.

DAASNY has also argued that the composition of the commission is unconstitutional because more than half of the appointments to the 11-member panel would be made by either Chief Judge Janet DiFiore or members of the Legislature. That would give two branches of state government an unconstitutional amount of power over the third, the group has claimed.

Heastie's attorneys said the practice of creating panels with appointees from different branches of government is common in New York state, and has yet to be declared unconstitutional. The Joint Commission on Public Ethics, for example, investigates ethics violations in state government, but has a majority of appointees from the Legislature.

"The constitutionality of these commissions and many others, however, would be called into doubt if plaintiffs' novel and unsupported theory here were to prevail," the filing said.

The commission, they claimed, is a subordinate body housed in state government, which they said would make it lawful for appointees to come from multiple branches, regardless of the composition.

They also responded to DAASNY's other claims against the commission, including that it unconstitutionally assigns non-judicial tasks to members of the state judiciary, conflicts with the powers of the state's appellate courts to discipline attorneys, violates the due process rights of state prosecutors, and more.

If any of those provisions are struck down, Heastie's attorneys argued, the rest of the law should stand on its own. They pointed to a severability clause included in the law that they claimed would allow the commission to continue if parts of it were invalidated.

"Nonetheless, if this court were to find that any provision of Article 15-A is unconstitutional, the appropriate remedy is to sever the offending provision, leaving the remainder enforceable," the filing said.

Rossman, in a statement, criticized the efforts of DAASNY to have the law struck down, including arguments against against its constitutionality and how it was enacted.

"Lacking any valid constitutional challenge, Plaintiffs' brief resorts to second-guessing the policy and the process behind the Commission," Rossman said. "In fact, it was years in the making and enjoyed the overwhelming, bi-partisan support of both houses of the legislature and the Governor who recognize the growing importance of creating prosecutorial oversight to reduce wrongful convictions and foster confidence in the criminal justice system."

A state judge has yet to rule on the constitutionality of the commission since the suit was filed last year. DAASNY is expected to respond to Heastie's new filing in the coming weeks.

Attorneys for the group said in a statement that they remain confident in their chances of defeating the law.

"The motion filed by Assembly Speaker Heastie, the only defendant in the lawsuit willing to defend the constitutionality of the statute, tries mightily to overcome blatant constitutional defects we and many others have identified with respect to the Commission on Prosecutorial Conduct," DAASNY's attorneys said. "We look forward to pointing out the numerous flaws in his reasoning."

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