Albany District Attorney David Soares. Photo: Tim Roske

An Albany Supreme Court justice late Tuesday ruled to sideline a prosecutorial misconduct watchdog created by the New York Legislature last year, striking down the statute as unconstitutional.

The decision is a win for the District Attorneys Association of the State of New York, which has opposed the creation of such a commission, and Albany County District Attorney David Soares, who represented the interest of all New York state prosecutors.

Soares and DAASNY were represented by Jim Walden and Jacob Gardener of Walden Macht & Haran in Manhattan, which has pioneered what it calls "good government litigation."

Walden said, "we are grateful for the Court's trenchant analysis and thoughtful decision. The Court eloquently explained what we and our clients have been arguing for over a year: the Commission on Prosecutorial Conduct and its enabling statute are unconstitutional. I am pleased that the hardworking public servants in District Attorneys' offices throughout the state will be able to do their jobs without the constant threat of unconstitutional oversight."

Defending the statute and the commission in Albany Supreme Court were Kathleen Sullivan, Andrew Rossman, William Adams and Alex Spiro of Quinn Emanuel Urquhart & Sullivan, who were representing the state government and Assembly Speaker Carl Heastie, D-Bronx.

Backers of the commission expressed dismay with the ruling but renewed their commitment to a mechanism that would hold authorities accountable.

"We are immensely disappointed with the court's decision. Prosecutorial misconduct is a reality that our clients and our attorneys confront on a regular basis. People have languished in prison for years, their lives ruined because of the misconduct of prosecutors who abuse their power with impunity. There must be an independent body to hold prosecutors accountable when they break the law or act in bad faith. This decision will not stop the movement for real accountability," said Tina Luongo, attorney-in-charge of the criminal defense practice at the Legal Aid Society.

Justice David A. Weinstein granted a declaratory judgment and injunctive relief to the prosecutors in a 63-page decision captioned Soares v. State of New York, finding Article 15-a of the New York Judiciary Law, which created the Commission on Prosecutorial Conduct, in violation of the state constitution.

The commission was set to be composed of four appointees of the governor, one each tapped by the state legislative leaders, and three named by the chief judge of the New York Court of Appeals. An entity within the executive branch, according to the statute, it is empowered to "initiate" investigations of, or receive complaints about, the conduct and performance of DAs' and assistant DAs' official duties. Upon investigation, it could dismiss the complaint, censure the prosecutor or recommend that the governor dismiss a prosecutor.

Weinstein concluded that the commission would unconstitutionally infringe on the Appellate Division's power to carry out attorney discipline.

While "a court or administrative agency may opine on questions of official misconduct as incident to and necessary to decide matters properly before that tribunal, the exclusive jurisdiction of the Appellate Division over attorney discipline does not allow any other body to impose sanction as a form of discipline for professional misconduct," Weinstein wrote.

He said that the Appellate Division's role in attorney discipline was constitutional in nature, and that the commission would be playing a role that was beyond the powers that the legislation could grant.

"Exclusive jurisdiction has been constitutionalized," Weinstein said, referring the Appellate Division's powers.

Article 15-a would create a parallel attorney discipline system for county prosecutors, Weinstein said, because it could make a determination that the Rules of Professional Conduct had been violated, and issue public censure of such attorneys.

Even if the commission could not impact a prosecutor's law license, it is enough that the commission could make a determination that a violation had occurred and issue some form of punishment in the form of a censure.

Weinstein also faulted the appeals process in the statute, indicating that the measure cobbled together what was effectively an entirely new appellate court with jurisdiction not spelled out in the state constitution. The presiding justices of the four departments of the Supreme Court's Appellate Division would hear appeals from the commission's decisions.

Weinstein declined to offer relief on the basis that the commission would not apply to the state Attorney General's office or its personnel, but would provide oversight to the work of county prosecutors. He said such a distinction could be upheld on a rational basis test, which does not require heightened or strict scrutiny.

He refused to regard the distinction as irrational, pointing out that the AG and DAs have different jurisdiction and are "distinct constitutional officers, with different responsibilities and subject to separate governing statutes," Weinstein said.

Weinstein declined to rule that the measure denied due process to prosecutors, saying he could not do so before the commission had established procedural rule. He also said that the commission's power to grant immunity did not require immediate relief because no such grant—which could vitiate a local prosecutor's discretion to bring charges—had been granted.

Requests for comment were not immediately returned by attorneys defending the statute or the speaker's office.

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