Barry Kamins

This column contains the annual review of new legislation amending the Penal Law, Criminal Procedure Law and other related statutes. Part one of the review, which follows, discusses the singular substantive criminal justice legislation that was enacted by the Legislature: the creation of a Commission on Prosecutorial Conduct (L. 2018, Ch. 202, eff. Jan. 1, 2019).

No legislative change in recent memory has engendered as much controversy, both before and after the Governor signed it into law. The Commission, the first in the nation, was created, according to the Governor’s approval memorandum, to provide a forum in which the public can raise allegations that a prosecutor has violated his or her professional responsibilities and duty.

The 11-member Commission is given the authority to investigate a complaint against any district attorney or assistant district attorney and to determine whether his or her conduct is unethical or unlawful. The Commission would have the authority to issue subpoenas, compel witnesses to testify under oath, confer immunity (with prior written notice to the appropriate District Attorney), and require the production of records and evidence it deems relevant or material to its investigation.

The law, as originally enacted, requires the Chief Judge of the Court of Appeals to appoint three sitting judges to the Commission (one from the Appellate Division and two from other courts except the Court of Appeals); six other members are appointed by the Legislature. The remaining two members are picked by the Governor. As discussed below, the composition of the Commission will be changed by a chapter amendment.

At the conclusion of its investigation, the Commission can take a number of actions: determine that a prosecutor should be admonished or censured; recommend to the Governor that a prosecutor be removed from office for cause; or forward its file to other entities or agencies, e.g., a grievance committee or District Attorney’s office, for “such action as may be deemed proper or necessary.”

Should a prosecutor wish to appeal the Commission’s findings, a review of the determination is made by the New York Court of Appeals. After its review, the court may accept or reject the determined sanctions, impose a different sanction or transmit the record to the Governor and recommend that the prosecutor be removed from office.

In his approval memorandum, the Governor acknowledged that the law “suffers from several flaws that have been identified by the State’s Office of the Attorney General.” As a result, the Governor and Legislature agreed to amend the bill through a chapter amendment that will be approved at the beginning of the legislative session in January. The language of the amendment, if it has been drafted as yet, has not been made public.

The defects in the bill, as mentioned in the Governor’s approval memorandum, are constitutional in nature. Provisions of the bill would: (1) violate the separation of powers between the three branches of Government; (2) impermissibly expand the role of the judiciary; and (3) undermine or interfere with the constitutional authority of state prosecutors.

As enacted, the bill is violative of the constitutional separation of powers. A majority of the Commission members are selected by the Legislature; pursuant to the Constitution, prosecutors can only be disciplined or removed by the Governor. Pursuant to the chapter amendment, the Governor will select four Commission members as will the Legislature; this change in the composition of the Commission is intended to cure the separation-of-powers defect.

A second flaw in the bill confers authority upon the judiciary that runs afoul of the Constitution. Under the new law, as written, the Chief Judge selects three sitting judges as members of the Commission. This impermissibly expands the powers given to the Chief Judge under the State Constitution. In addition, the three judges who would serve as members would be given an unconstitutional assignment of executive authority in their power to investigate a prosecutor’s performance of official duties.

The chapter amendment will seek to cure these defects by authorizing the Chief Judge to select retired judges to serve on the Commission. In addition, the review of the Commission’s findings would be conducted by the Appellate Division rather than the Court of Appeals.

The third flaw, as identified by the Governor’s memorandum, relates to the interference with prosecutorial authority and independence. As written, the law would permit the Commission to investigate a prosecutor while a prosecution is pending. While the prosecutor can inform the Commission that the inquiry may interfere with the prosecutor’s case, the Commission is not precluded from continuing its review. This provision may have a chilling effect upon the prosecutor’s decision-making and impermissibly interfere with the independence of that office.

In addition, the law would make public all files provided by a prosecutor to the Commission, even while an active investigation is underway. The Governor’s memorandum points out that this potential exposure to victims and witnesses would be “immeasurable.” The chapter amendment is designed to cure this defect but the Governor’s memorandum did not elaborate on the details.

The fate of the Commission remains an open question. The President of the State District Attorney’s Association, David Soares, stated that “[t]here are no chapter amendments that can resurrect the constitutionally flawed document.” N.Y. Times, Aug. 23, 2018. His group has announced that it will be filing a lawsuit to challenge the law.

An argument can be made that even with the anticipated changes in the chapter amendment, the law may still run afoul of constitutional provisions. Consider, for example, that the amendment will delegate to the Appellate Division a review of the Commission’s findings. While that change eliminates the defect that existed with respect to the Court of Appeals, the law still requires justices on the Appellate Division to exercise executive and nonjudicial duties.

Ninety years ago, Chief Judge Benjamin N. Cardozo, writing for a unanimous Court of Appeals, held that it is unconstitutional for the Legislature to delegate nonjudicial functions to the judiciary. In Re Richardson, 247 N.Y. 401. In Richardson, a proceeding was brought to remove the President of the Borough of Queens. Pursuant to a section of the Public Officers Law, the Governor appointed a state Supreme Court justice to hear the charges and report his recommendations to the Governor. In ordering the justice not to proceed, the Court of Appeals held that the Legislature does not have the power to give a justice of the Supreme Court the “duties of a prosecutor in aid of the Executive.” Id. at 413. Thus, it would be unconstitutional for the “Executive or Legislature to charge the judiciary with administrative functions except when reasonably incidental to the fulfilment of judicial duties.” Id. at 411.

Under the new law, and the proposed chapter amendment, the justices of the Appellate Division would have the authority to review the findings of the Commission and possibly make recommendations with respect to the removal of a prosecutor. Pursuant to Richardson, one could argue that this is an unconstitutional delegation of nonjudicial and executive authority.

Although the law is effective Jan. 1, 2019 and a chapter amendment will be enacted in early January, it remains to be seen when and if the Commission will become operational.

The second part of the annual legislative review will discuss all amendments to the Penal Law, Criminal Procedure Law and other related statutes.

​Barry Kamins is a partner at Aidala, Bertuna & Kamins and author of New York ​Search and Seizure (Lexis/Nexis 2018). He is a former state Supreme Court judge.