Gov. Andrew Cuomo. Photo: Office of the Governor/Kevin P. Coughlin

The state’s prosecutors formally asked Gov. Andrew Cuomo on Monday to veto a bill that would create a special commission to review complaints of misconduct by the state’s district attorneys and their assistants.

Cuomo has until the end of the day Wednesday to either sign or veto the bill, which is an amended version of legislation passed last year that was considered to be constitutionally questionable by the state attorney general’s office and the state’s prosecutors.

The District Attorneys Association of the State of New York, led by Albany County District Attorney David Soares, wrote in a letter to Cuomo on Monday that the new version of the bill still has constitutional defects they would challenge in court if it’s approved.

“[The bill] has an admirable goal: improve our criminal justice system,” Soares wrote. “The way to achieve that goal, however, is not through legislation that violates bedrock principles of our Constitution.”

Soares is a lead plaintiff on a lawsuit brought by DAASNY last year against the previous version of the legislation, which Cuomo signed into law with a promise from lawmakers to amend it at the next earliest opportunity. DAASNY is represented pro bono by Jim Walden and Jacob Gardener from Walden, Macht & Haran in Manhattan.

That litigation was put on hold late last year while lawmakers mulled when they would pass the amended bill. Language on the amended version wasn’t available until days before it was passed in January, which DAASNY said violated a court-approved stipulation to keep them updated on the bill’s progress. Cuomo had broadly outlined the proposed changes when he signed the bill in August, but the text of the bill hadn’t been made available until that point.

Lawmakers didn’t deliver the bill to Cuomo for a signature until earlier this month, which allowed the lawsuit from DAASNY to, meanwhile, remain in limbo. That started the clock for Cuomo to make a decision, which is due by the end of the day Wednesday.

Soares wrote that their litigation against the legislation will continue despite attempts by Cuomo and lawmakers to correct some of its constitutional flaws.

“We would prefer to work with you on sensible and appropriate reform rather than continuing to pursue court action to strike down this new legislation, although we are confident the court will do so,” Soares wrote.

The letter, hand-delivered to Cuomo’s office Monday afternoon, outlined seven different ways, identified by DAASNY, that the revised bill still violates sections of the state constitution. Those reasons were also alleged as flaws in the original bill, but DAASNY has argued that the changes will do little to support the proposal’s constitutionality.

Among them was an argument that the commission violates the separation of powers doctrine because the commission would be composed of members appointed jointly by Cuomo, Chief Judge Janet DiFiore, and party leaders in the legislature. That would allow members appointed from one branch of government to be involved in disciplining prosecutors, who are considered part of the executive branch.

The letter also argued that the legislation would unconstitutionally interfere with the work of district attorneys, who may be less willing to pursue difficult prosecutions out of concerns that their operations would be under the scrutiny of a hybrid panel. Those disruptions would rise from complaints filed in the midst of an investigation or prosecution, Soares argued.

“That investigation may include hearings attended by the defendant at which the prosecutor, victims, witnesses, and police officers may be compelled to testify about sensitive aspects of the defendant’s ongoing case,” Soares wrote. “These consequences will chill lawful prosecutorial conduct, impair prosecutorial discretion, and interfere with the operation of District Attorneys’ offices.”

That ties into two other concerns outlined by Soares over the alleged due process and equal protection violations imposed by the legislation. The state’s lawyers, including prosecutors, are currently disciplined by a set of Grievance Committees in each of the four Appellate Divisions. Soares argued that enacting the commission would unconstitutionally put prosecutors through a different process and intrude on the power of the appellate courts to handle those matters.

“In contrast to the rules governing the disciplinary process for other lawyers in New York, the bill permits the Commission to investigate and discipline any prosecutor for virtually any act or qualification it dislikes based on any degree and type of proof it chooses, and it provides no right to appeal to the Court of Appeals,” Soares wrote.

Soares also argued that the judiciary’s two functions as part of the commission would be unconstitutional. The first, which allows DiFiore to appoint members to the panel, unconstitutionally expands the power of her office, the letter argued. The second, which tasks the state’s four appellate courts with reviewing the commission’s decisions when requested, “improperly assigned non-judicial duties,” to those jurists, Soares argued.

The letter also explained that the commission could be interpreted as unconstitutional because it would have no supervising authority. The legislation would create it as its own entity, rather than as part of a civil agency. That would violate the state constitution’s civil department structure, Soares argued.

If Cuomo signs the bill, DAASNY will have to decide what its next move will be in its litigation against the legislation. Likely next steps by the organization would be to amend its lawsuit to reflect the newly approved bill and file for a preliminary injunction against the enactment of the commission.

A spokesman for Cuomo said the legislation is still being reviewed before a decision is due Wednesday.


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