Albany DA David Soares. Albany DA David Soares. Photo Credit: Tim Roske

The state’s district attorneys, on Monday, moved to block the creation of a new commission that would be tasked with reviewing complaints of misconduct specifically against the state’s prosecutors, who argued that the legislation passed to create the panel is unconstitutional.

The new filing from the District Attorneys Association of the State of New York comes after Gov. Andrew Cuomo signed a bill into law last week that would create the Commission on Prosecutorial Conduct, despite the expected constitutional challenge.

It’s not the first time the group has moved to challenge the legislation; it filed a lawsuit last year against a previous version of the bill that was ultimately amended by lawmakers because of its questionable constitutionality.

But Albany County District Attorney David Soares, the current president of DAASNY, said Monday that the new version of the law still contains several flaws that should be assessed in court before it’s enforced.

“As with the prior bill, the amended version suffers from most of the same constitutional infirmities, and impermissibly intrudes on core law enforcement functions,” Soares said. “In essence, the new bill is just another political stunt, with no hope of surviving judicial scrutiny. Although we offered to work together with the Legislature on a lawful set of reforms, our offer fell on deaf ears.”

The revived challenge to the commission wasn’t unexpected. DAASNY has been critical of the amended legislation since lawmakers first introduced and passed it in January. There were a few changes to the bill, compared to the previous version, but many of the constitutional flaws identified in last year’s iteration were still included.

DAASNY has argued against the commission’s constitutionality for years now, but those concerns weren’t realized until lawmakers approved legislation to create the panel last June. The state attorney general’s office, at the time, told Cuomo that the bill, as written, was unlikely to survive a constitutional challenge in court.

The Cuomo administration agreed to work with lawmakers on changes to the legislation that could cure some of those constitutional flaws. He agreed to sign the first version of the bill with a promise from lawmakers to amend it in January. The initial bill prevented the commission from being created in the meantime.

Lawmakers followed through on that promise by introducing and passing an amended version of the legislation in January. But that version of the bill, which was not revealed until days before it passed, still contained many of the same constitutional flaws previously identified, DAASNY claimed.

The group held off on reviving its legal challenge against the legislation until it was signed into law by Cuomo last week. It moved for a preliminary injunction against the panel’s creation on Monday and also filed an amended version of its lawsuit against the commission.

DAASNY is represented pro bono in the litigation by Jim Walden and Jacob Gardener from Walden, Macht & Haran in Manhattan. They said in a statement that the legislation was designed by lawmakers to “score cheap political points,” despite its alleged lack of constitutionality.

“In sad truth, the fact that the legislature passed a bill that is patently unconstitutional [and] defied the Governor’s instruction to correct it … betrays the legislature’s true interest here: to score cheap political points with a facially invalid bill while vilifying the overwhelming majority of dedicated, ethical and hard-working District Attorneys across the state and, at the same time, providing false hope to actual victims of misconduct that this bill could afford relief,” Walden and Gardener said in a joint statement.

They’ve identified seven different provisions of the legislation that they allege are contradictory to the state constitution. They’re nearly identical to the flaws identified by DAASNY in the previous version of the legislation. The New York Law Journal has previously reported on the group’s concerns over the amended version of the bill approved by Cuomo last week.

Among them is an argument that the commission violates the separation of powers doctrine of the state constitution because the panel would be composed of individuals appointed by each branch of state government. That would improperly allow other branches of state government to be involved with disciplining the state’s district attorneys, who are considered part of the executive branch, DAASNY has claimed.

They’ve also argued that the commission could unconstitutionally interfere with the work of the state’s 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.

Their other concerns deal with oversight of the commission, how it would expand the power of certain judicial officers beyond what’s prescribed in the state constitution, and allegedly deny due process and equal protection rights to the state’s prosecutors.

The legislation signed by Cuomo last week would allow himself, members of the Legislature, and Chief Judge Janet DiFiore to appoint certain individuals to an 11-member panel that would be tasked with reviewing complaints of misconduct against the state’s prosecutors. Supporters of the commission have argued that it would provide stronger oversight over the state’s district attorneys, and prevent wrongful convictions.

Cuomo wrote in a memo approving the bill last week that he supported the legislation, but acknowledged that constitutional flaws remained in the bill. He blamed the Legislature for sending him a bill that was potentially problematic.

“Previously unidentified infirmities — including constitutional separation of powers concerns with both the executive and judiciary — that leave this law vulnerable to legal attack have come into sharp focus with the passage of time and attention to the ongoing legal challenge,” Cuomo wrote. “Still, the Legislature remains unconvinced that changes recommended by the Executive are necessary and determined it best to deliver the bill unchanged.”


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