Constitutional Challenge to NY Prosecutorial Watchdog Panel Questioned in Albany Court

Constitutional Challenge to NY Prosecutorial Watchdog Panel Questioned in Albany Court

New York State Assembly Chamber, Albany, New York New York State Assembly Chamber, Albany, New York.

A lawsuit against a special commission created by the state Legislature in New York last year to investigate complaints of misconduct filed against district attorneys and their assistants had its day in court Wednesday, with the panel’s constitutionality on the table.

But attorneys for Assembly Speaker Carl Heastie, D-Bronx, a target of the lawsuit, argued in court that the law wasn’t eligible for a constitutional challenge from the state’s prosecutors.

Instead, they argued, prosecutors could bring litigation in the future if they felt aggrieved by the panel’s actions, which are already held to a series of safeguards intended to prevent the abuse of its power.

Andrew Rossman, a New York-based partner at Quinn Emanuel Urquhart & Sullivan, who’s representing Heastie in the litigation, argued that the commission’s work shouldn’t be challenged until a prosecutor is directly affected by its actions in the future, if at all.

“If any of the parade of horribles were to come to pass that the plaintiffs have suggested could happen here, there are more than ample safeguards, not only in the statute itself but in the court system to invalidate on an as-applied basis,” Rossman said.

In other words, Rossman argued that, as of now, the concerns of prosecutors over the commission are merely hypothetical and shouldn’t be evaluated by the court.

The lawsuit against the panel, called the Commission on Prosecutorial Conduct, was brought last year by the District Attorneys Association of the State of New York, the state’s trade group for prosecutors.

Since the law was first approved in the middle of last year, they’ve expressed a series of concerns over its constitutionality, including whether it should exist altogether, and whether the Legislature clearly defined how it would decide when a prosecutor should be sanctioned.

The Commission on Prosecutorial Conduct, if enacted, would have the power to receive and investigate complaints made against the state’s district attorneys and their assistants.

After an investigation, the panel could either clear that prosecutor of wrongdoing, or recommend a sanction. Those sanctions would range from a public censure—essentially a slap on the wrist—to a recommendation for their removal from office.

DAASNY was represented during arguments Wednesday by Jacob Gardener, an associate at Walden Macht & Haran in Manhattan. Jim Walden, name partner at the firm, is leading the case and was also in court.

Arguments on Wednesday, which lasted nearly three hours, were before Acting Albany County Supreme Court Justice David Weinstein, who asked Gardener to justify the challenge.

“If where, as here, there is a vague statute, which this statute is vague, a facial challenge is appropriate,” Gardener said.

He then read from the law approved by the Legislature to create the commission, which provides that the panel will investigate complaints related to “the conduct, qualifications, fitness to perform, or performance of official duties.”

The legislation does not define what would constitute an act of official misconduct committed by a prosecutor, Gardener said. If the law is allowed to stand, he said, prosecutors wouldn’t know what activities would put them at risk of an investigation from the panel.

“There’s no qualification with respect to that language,” Gardener said.

That issue was addressed during a persistent line of questioning at the hearing from Weinstein, who asked both attorneys what they perceived to be the breadth of the commission’s work.

Weinstein asked Rossman, for example, whether the panel could, in his interpretation, issue a sanction for decisions made by prosecutors that some might perceive as discretionary. Some prosecutors have chosen not to enforce low-level marijuana charges, for example.

Responding to that specific example, Rossman said that prosecutors could be targeted by the panel for such a decision if a complaint was made, but that the subject of such a probe could take advantage of a series of safeguards in the law.

“If it’s a persistent refusal to perform the duties of the office … then I think that would be something that falls within the language of the statute,” Rossman said.

“Even if we had a commission who had gone rogue, and had gone off of these standards and started administering its powers against a district attorney that is inappropriate, it’s still not a constitutional problem because the commission’s powers are limited,” he later said.

The panel wouldn’t be able to unilaterally remove a district attorney from office, for example. That decision would be up to the governor, who has exclusive power to do so. Prosecutors would also be allowed to appeal a decision from the panel.

Rossman also disagreed that the lack of a specific definition of what would be considered misconduct by the panel justified a constitutional challenge to the law.

Those standards would be developed over time, he said, much like the state Commission on Judicial Conduct. That body, which the Commission on Prosecutorial Conduct was modeled after, evaluates complaints of misconduct made against the state’s judges.

In the meantime, Rossman argued, prosecutors who disagree with a decision made by the new panel could either appeal it or bring a separate proceeding challenging it at that time.

That argument stuck for a moment with Weinstein, who questioned whether allowing such a commission to develop its own standards over time for when a prosecutor is acting appropriately, versus inappropriately, may be beyond the authority of such a panel.

“Those strike me as policy positions,” Weinstein said.

Gardener urged Weinstein to reject a wait-and-see strategy, saying that prosecutors would be left with more questions than answers in the meantime. Without knowing which actions would merit a probe, prosecutors will constantly be waiting for the other shoe to drop, he said.

“Prosecutors shouldn’t have to risk their careers in order to challenge an unconstitutional statute,” Gardener said.

On that argument, Rossman cited the law’s original intent when the Legislature first approved it last year. Lawmakers, at the time, said it was to root out the small minority of prosecutors who act inappropriately to the detriment of the wrongfully accused.

“If this has the impact of dissuading bad investigations, then the Legislature is doing us all a public service,” Rossman said.

READ MORE:

Attorneys for Assembly Speaker Move to Uphold Prosecutorial Watchdog Panel

NY District Attorneys Formally Move to Strike Down Prosecutorial Watchdog Law

Sponsor of Prosecutorial Conduct Watchdog Bill Urges Cuomo, Lawmakers to Rejoin Lawsuit

Cuomo, Lawmakers Agree Not to Defend Prosecutorial Watchdog’s Constitutionality

Published at Wed, 04 Dec 2019 16:45:00 +0000

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