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

ALBANY – A district attorney can step aside from a case by demonstrating reasonable grounds why disqualification is appropriate, the Court of Appeals held Tuesday.

The state’s high court, in a per curiam decision, found that district attorneys seeking recusal should not be held to the same high standard that applies when an adversary seeks the prosecutor’s removal.

The ruling upheld Richmond County District Attorney Daniel Donovan’s recusal and the appointment of Roger Bennet Adler of Manhattan as special prosecutor, allowing Adler to resume a long-delayed investigation into the Working Families Party (WFP) and a 2009 City Council election on Staten Island.

The court disagreed with the WFP, which argued that district attorneys can disqualify themselves only upon “a showing of actual prejudice based on a demonstrated conflict of interest,” which is the standard for disqualification when the motion is brought by a suspect.

However, it disagreed with Donovan and the District Attorneys Association of the State of New York, which argued as amicus curiae that prosecutors can disqualify themselves whenever they want and their decision is immune from review.

Working Families Party v. Fisher, 59, began with a probe Donovan launched into a 2009 election, apparently targeting the party’s use of a not-for-profit arm to promote liberal Democrats and possible violations of the campaign finance and election laws, as well as the Penal Law.

Shortly after launching the investigation, Donovan submitted a confidential ex parte application to Deputy Chief Administrative Judge Fern Fisher (See Profile), asking to be relieved from the case for reasons that have never been revealed.

Two years later, Fisher appointed herself a Richmond County Supreme Court justice long enough to grant Donovan’s application and assigned the matter to Adler.

The WFP challenged Donovan’s authority to recuse himself and Fisher’s authority to relieve him without “a showing of actual prejudice,” as mandated by County Law §701 when an adversary seeks to push a district attorney off a case against his or her wishes.

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 prosecutor is performing a quasi-judicial function, as opposed to conducting an investigation. (NYLJ, Aug. 8, 2013).

On Tuesday, the Court of Appeals, in a 6-0 decision, found Adler’s appointment was valid; that Fisher failed to follow statutory procedures for the appointment, but her errors were harmless; that a writ of prohibition is an appropriate vehicle for challenging the appointment of a special district attorney; and that district attorneys can self-disqualify with minimal oversight.

The case apparently marked the first time the court has addressed the rules that apply when a district attorney seeks his or her own disqualification. Although the court disagreed with Donovan’s argument that a D.A.’s self-disqualification is unreviewable, it gave prosecutors considerably more latitude to step aside than the WFP had wanted.

“To allow a district attorney to disqualify himself and his office in his sole discretion would value too lightly the public interest in having prosecutorial duties performed, where possible, by the constitutional officer chosen by the electorate,” the court said. “Where there is legitimate doubt as to whether a district attorney and his office may proceed in a case, the district attorney is not barred from resolving that doubt by choosing to step aside.”

The court adopted the reasoning of People v. Schrager, 74 Misc 2d 833 (Queens Supreme Court, 1973), and held that a district attorney seeking to self-disqualify may do so upon “a good faith application containing the reasonable grounds for his belief that he is so disqualified.”

Contrary to the Second Department’s decision, the court found a writ of prohibition is a proper way to challenge Fisher’s order disqualifying Donovan. The Second Department had said that prohibition was suitable only when the special prosecutor was performing a quasi-judicial act and not when the matter was merely in the investigatory stage. But the high court disagreed.

“It is not in the public interest to allow a prosecutor to carry out a lengthy investigation when there is doubt that his or her appointment is valid, and to run the risk that the process will have to start all over again with a different prosecutor,” the court said. “That would be at best wasteful, and at worst it could result in the inability, for statute of limitations or other reasons, to prosecute cases that should be prosecuted.”

In an unsigned opinion joined by judges Victoria Graffeo (See Profile), Susan Phillips Read (See Profile), Robert Smith (See Profile), Eugene Pigott Jr. (See Profile), Jenny Rivera (See Profile) and Sheila Abdus-Salaam (See Profile), the court also said the procedures followed by Fisher were “flawed,” but not so flawed as to warrant nullifying her appointment of Adler. Chief Judge Jonathan Lippman (See Profile) did not take part.

“While [Fisher] was free to appoint herself [a Richmond County Supreme Court justice so she could make the appointment], she should have documented in a separate order the fact that she did so, not simply proceed with the appointment of Adler as special prosecutor,” the court said. “She should also have consulted with, and obtained the approval of, the presiding justice of the Appellate Division, and should have recited in her order that she had done so.”

Although the ruling resolved the legal questions, it did nothing to solve the mystery of why Donovan felt he couldn’t handle the WFP investigation in the first place.

The court noted that Donovan had asked the judges for permission to file his brief under seal, and to serve only a redacted version on the WFP, a request that the tribunal rejected. Consequently, the judges said on Tuesday, “Donovan then chose to file a brief from which substantially all of the facts that formed the basis for his application for a special prosecutor were omitted.”

But the court said the relevant facts were contained in a sealed record submitted to the Second Department, which it reviewed. The court observed that the WFP has never asked the Court of Appeals to unseal those records, although it did make that request, unsuccessfully, to the Second Department.

Dentons partner Avi Schick, who argued for the WFP, said the party was “disappointed by the court’s reliance on papers filed under seal and kept from the party and the public to uphold the validity of the special prosecutor’s appointment.”

“We are also gratified that the Court of Appeals found, as we had contended, that the trial court didn’t follow the proper procedures in appointing a special prosecutor; that the Appellate Division erred in its dismissal of our petition challenging that appointment; and that District Attorney Donovan was incorrect when he asserted that his decision to seek to disqualify himself was not subject to judicial review,” Schick said.

It is unclear why the WFP preferred to be prosecuted by Donovan rather than Adler, which would have been the result if the party had prevailed in this case.

A spokesman for Donovan said the ruling “validates the district attorney’s determination that he had a ‘good faith, reasonable basis’ to conclude that his recusal was consistent with his obligations under the Rules of Professional Conduct,” and also “vindicates his desire to ensure public confidence in the outcome of the investigation.”

Assistant District Attorney Morrie Kleinbart appeared for Donovan. Lee Alan Alderstein of the Office of Court Administration represented Fisher.

Adler was not immediately available for comment.