Roger Bennet Adler, left, and Staten Island D.A. Daniel Donovan Jr.
Roger Bennet Adler, left, and Staten Island D.A. Daniel Donovan Jr. (NYLJ/Monika Kozak, Rick Kopstein)

ALBANY – A political investigation shrouded in mystery reached the Court of Appeals Tuesday in a case that could determine if the judiciary can second-guess a district attorney’s decision to step aside from a particular matter.

The case involves the Working Families Party, an investigation of a city council election launched by Staten Island District Attorney Daniel Donovan, the prosecutor’s ex parte application to be relieved of the case, and a judge’s decision to grant the motion and appoint a special prosecutor without revealing why.

Before the high court is the procedural issue of whether the WFP can challenge the appointment of a special prosecutor through a writ of prohibition and the substantive issue—if the court gets there—of whether a district attorney seeking to disqualify himself must demonstrate the same actual prejudice that a defendant would have to show to get a D.A. taken off a case.

Working Families Party v. Fisher, 59, centers on a probe Donovan launched into a 2009 City Council campaign and apparently involves the party’s use of a not-for-profit arm to promote liberal Democrats.

Shortly after initiating the probe, Donovan, for reasons he has never publicly explained, submitted a confidential ex parte application to Deputy Chief Administrative Judge Fern Fisher, asking to be relieved of the investigation into possible violations of the campaign finance and election laws, as well as the penal law.

Two years later, Fisher appointed herself a Richmond County Supreme Court justice long enough to grant Donovan’s application and assign the matter to attorney Roger Bennet Adler of Manhattan.

Since then, the WFP has challenged Donovan’s authority to recuse himself and Fisher’s authority to relieve the district attorney without “a showing of actual prejudice based on a demonstrated conflict of interest,” as mandated by County Law §701.

See Briefs filed in the Court of Appeals by the Working Families Party, Fisher, and Donovan.

The Appellate Division, Second Department, last August rejected the party’s petition and affirmed the appointment of Adler. It held that a writ of prohibition is suitable to challenge the appointment of a special district attorney only if the special D.A. is performing a quasi-judicial function, as opposed to conducting an investigation (NYLJ, Aug. 8, 2013).

On Tuesday, Dentons partner Avi Schick, counsel for the WFP, stressed that the party is not questioning Adler’s investigation. Rather, he said it is challenging Fisher’s authority to replace the district attorney.

During oral arguments, Judge Victoria Graffeo questioned why the WFP cares if Donovan or Adler investigates. Judge Eugene Pigott seemed troubled by the secrecy of the matter. Judge Robert Smith hinted more than once that Schick might want to move to unseal the record to find out just why Donovan recused himself.

Judges also questioned whether the target of an investigation should be permitted to choose its own prosecutor, and whether the WFP, if it gets Donovan restored and then finds he had a legitimate reason for stepping aside, could then seek to have him removed.

Donovan’s attorney, Assistant District Attorney Morrie Kleinbart, argued that the prosecutor has unfettered, unreviewable discretion to act on his conscience and decide that it would be inappropriate for him to pursue a case.

But Kleinbart said that even if the court disagrees on that point, prosecutors should not be held to the standard of County Law §701

The District Attorneys Association of the State of New York appeared amicus curiae in support of Donovan. In its brief, the group said that “justice is not served when a district attorney is put in a position where he or she believes there is a conflict of interest but recusal is not permitted.”

Fisher is represented by Lee Alan Alderstein of the Office of Court Administration, who argued that she had a clear right to appoint a special district attorney and that her decision is not subject to a writ of prohibition.