Prosecutorial conduct panel struck down by judge

A court has struck down the state’s creation of the Commission on Prosecutorial Conduct, but that doesn’t mean the measure is dead yet.

The Commission on Prosecutorial Conduct would be a special panel of appointees to review complaints of misconduct against the state’s prosecutors and either sanction district attorneys or recommend their removal. It has been approved twice by the state Legislature, first two years ago and then again last year after state legislators promised to make revisions that were to allow the statute enacting the commission to pass constitutional challenges.

The District Attorneys Association of the State of New York challenged the law on several fronts, including infringement on due process and equal protection rights of district attorneys; unlawful interference with the core function of district attorneys; violation of the separation of powers; impermissibly allowing the Chief Judge of New York State to make appointments to the commission; intrusion on the Appellate Division’s authority over attorney discipline; and assigning tasks to the judiciary beyond what is constitutionally permitted. Acting Supreme Court Justice David Weinstein disagreed with many of the district attorneys’ contentions except for the argument over assignment of additional responsibilities to Appellate Court judges.

While the suit was originally filed against Gov. Andrew Cuomo and the party leaders of the state Assembly and Senate, a series of stipulations and allowances meant only Assembly Speaker Carl Heastie, D-Bronx, remained as a defendant when the case made it to oral arguments.



The district attorneys argued that the Commission on Prosecutorial Misconduct would interfere with the authority of the Appellate Division to discipline attorneys. Attorneys for Assembly Speaker Carl Heastie argued that Article 6, Section 4(k) of the state Constitution allows the state Legislature to add additional jurisdiction to the Appellate Court.

The task of overseeing the attorney discipline has been a judicial responsibility since before New York was a state, Weinstein wrote, with that role confirmed by the state Constitutional Convention of 1894 and the state Legislature in 1912. In Weinstein’s view, the Appellate Division’s power to discipline attorneys can only be limited by amending the state Constitution. While other trial courts and organizations can make decisions regarding ethical rules for lawyers, only the Appellate Division can sanction attorneys for misconduct.

“Article 15-a would create a parallel body, which would have the same power to determine whether there have been violations of the Rules of Professional Responsibility, and to impose censure for such violations,” Weinstein wrote. “Indeed, under the law as enacted could be referred to both the disciplinary committee of the Appellate Division and the CPC, with the former determining no violation had occurred and the latter censuring the prosecutor. It is hard to see how this does not reduce the jurisdiction of the Appellate Division to pronounce on such questions.”

Weinstein also disagreed with the law’s attempt to give individual Appellate Court judges additional duties outside of the Appellate Division Department to which they are assigned. Under the Commission on Prosecutorial Conduct, presiding justices in the Appellate Division would be given jurisdiction to hear appeals from the Commission on Prosecutorial Misconduct, but Weinstein ruled that the state constitution does not allow the state Legislature to do so.

“There is nothing in the Constitution which would allow the Legislature to cobble together particular judges from each Appellate Division and vest this new body with jurisdiction nowhere provided for in the Constitution itself.”

After submission of additional post-argument briefs by Heastie’s attorneys, Weinstein wrote of two other constitutional failings in the law enacting the Commission on Prosecutorial Misconduct. Appellate Division judges cannot be directed by the state Legislature to issue determinations that are not judicial in nature. Weinstein ruled that the recommendations regarding removal of a prosecutor are non-judicial determinations.

Weinstein also agreed with the district attorneys’ argument that giving Appellate Division judges the power to suspend prosecutors while the Commission on Prosecutorial Misconduct makes a determination is outside the Appellate Division justices’ constitutional role within the separation of powers framework.

“The Constitution specifically delineates the process for removal of elected officials and vests the authority to remove a DA in the Governor,” Weinstein wrote. “Granting authority to do so temporarily to the judiciary appears to directly conflict with the governor’s jurisdiction in this regard.”

The law did give Weinstein the opportunity to remove the offending portions of law and rule the legislation constitutional, but the judge ruled that the offending sections of law were central to the operation of the statute.


The state could choose to appeal Weinstein’s ruling to the Appellate Division or try to amend the law to address Weinstein’s ruling.


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