Written by Emily Green
District Attorneys in New York state have banded together against a bill that would create a new oversight body intended to fight prosecutorial misconduct. The group of prosecutors have filed a lawsuit against Governor Andrew Cuomo to block the new legislation saying that it is “riddled with fatal constitutional defects.”
Upstate Republican State Senator John A. DeFrancisco sponsored the bill, which would create a Commission on Prosecutorial Conduct. Many criminal justice reform advocates support the bill, stating that it would help prevent wrongful convictions and would hold prosecutors accountable for their misconduct. Alternatively, opponents say it will have a chilling effect on prosecutors’ work and cause them to be unnecessarily defensive in carrying out their duties.
On August 21, 2018, Governor Cuomo signed the bill. Justifying his decision, Governor Cuomo explained that the commission would be a much-needed tool to root out any potential abuses of power, as well as keep the justice system fair for all New Yorkers. However, he did not sign with full approval. He agreed to sign with the caveat that the Legislature would amend the bill to address his concerns about its constitutionality during the next legislative session.
In effect, the bill would create a first-of-its-kind commission to investigate prosecutors who violate the standards of their office. There are none others like it in the nation and it would likely serve as a model for other states to follow suit.
Logistically, the bill proposes a watchdog commission made up of eleven members. These members will be prosecutors, defense attorneys, and judges. Six will be appointed by the Legislature, two will be appointed by the governor, and three will be appointed by the chief judge of the Court of Appeals, New York’s highest court.
The commission is charged with investigating any allegations of prosecutorial misconduct against any district attorneys in New York. It would have the resources to investigate any accusation of unethical, unprofessional, or unlawful action. Some of its power includes the ability to conduct hearings, compel witnesses to testify, issue subpoenas, and request records or materials for the investigation. Also, it would have broad power to punish prosecutors for misconduct, including through suspension and removal from office.
On Wednesday, October 17, 2018, prosecutors filed a 27-page complaint naming New York State, Governor Cuomo, state legislative leaders, and the commission as defendants in the suit. The plaintiffs are a group of District Attorneys from New York led by Albany County District Attorney David Soares.
Primarily, the plaintiffs argue that the bill makes significant changes by statute that can only be made by changing the state’s constitution. Therefore, it is unconstitutional, and the commission should not be formed.
However, the plaintiffs make arguments beyond constitutional issues, saying that the bill will practically hurt their job performance. They express concern that their independence will be threatened and that they will be hindered from carrying out their duties. Also, they predict that the interference in their work will breed more public corruption and distrust of public officials.
Central to the suit are several claims that the commission violates both the New York State Constitution and United States Constitution. First, the plaintiffs argue that the Legislature would be meddling in the affairs of district attorneys, who are elected executive-branch officials, therefore violating the doctrine of separation of powers. Additionally, they point out that there were no standards put forward for how the commission would determine who can and cannot be investigated. This violates the rights of the prosecutors under the Constitution’s Due Process and Equal Protection clauses. Finally, it would impermissibly expand the powers of the Court of Appeals. The New York Constitution limits the duties of judges to functions that are “reasonably incidental” to the fulfillment of judicial duties. This suit argues that judges sitting on this commission would go beyond “reasonably incidental duties” and therefore be acting unconstitutionally.
Governor Cuomo recognized some of these shortcomings when he signed the bill. He noted that there could be issues with separation of powers and the limited role of the judiciary. However, his office showed the most concern over the fact that the commission’s findings would be sent to the governor and available to the public. This could open the door for people to meddle in criminal cases and even active investigations. The concern is that anyone intent on disrupting a case can abuse the commission by forcing public disclosure of a prosecutor’s files.
The Bill’s Progress
After the lawsuit was filed, Governor Cuomo’s counsel outlined some major changes that will be made to the bill. One major change is a shift in the selection process of the eleven members of the commission. The governor and the legislature will each select four members, and the judiciary would still pick three, but its appointees must be retired judges.
Another significant change is that the commission’s findings will be issued through the appellate courts, not the Court of Appeals. This shift is an effort to limit the power gained by the Court of Appeals.
Finally, the amended bill made an important change regarding the timing of investigations into prosecutorial misconduct. The bill will prevent the commission from investigating District Attorneys during current investigations or ongoing cases where no charges have been filed.
The amended bill is set to take effect in January, but its future is uncertain pending the outcome of this lawsuit.
Amanda Ottaway & Adam Klasfeld, NY Prosecutors Sue to Stop Misconduct Watchdog, Courthouse News Service (October 17, 2018).
Carl Campanile, Lawyers sue Cuomo over law that probes prosecutor misconduct, New York Post (October 17, 2018)
Corinne Ramey, In Lawsuit, New York State Prosecutors Call Oversight Commission Unconstitutional, Wall Street Journal (October 17, 2018).
David Klepper, Capitol Watch: Local Prosecutors Sue Over Misconduct Panel, U.S. News (October 20, 2018).
Jesse McKinley, A New Panel Can Investigate Prosecutors. They Plan to Sue to Block It., New York Times (August 23, 2018).
Jonathan Bandler, NY Attorney General questions constitutionality of oversight commission for prosecutors, Lohud (August 14, 2018).
Ryan Boysen, NY Das Sue Cuomo Over Prosecutorial Misconduct Law, Law 360 (October 18, 2018).
Photo courtesy of Utah Bar Association.