Soares v. State

• Decision Date: 28 January 2020
• Docket Number: 906409-18
• Citation: 68 Misc.3d 249,121 N.Y.S.3d 790
• Parties: David SOARES, District Attorney of Albany County, Representing all elected District Attorneys; and the District Attorneys Association of the State of New York, Plaintiffs, v. The STATE of New York; and Carl E. Heastie, in his official capacity as the Speaker of the New York State Assembly; and the Commission on Prosecutorial Conduct, Defendants.
• Court: New York Supreme Court

68 Misc.3d 249

121 N.Y.S.3d 790

David SOARES, District Attorney of Albany County, Representing all elected District Attorneys; and the District Attorneys Association of the State of New York, Plaintiffs,

v.The STATE of New York; and Carl E. Heastie, in his official capacity as the Speaker of the New York State Assembly; and the Commission on Prosecutorial Conduct, Defendants.

906409-18

Supreme Court, Albany County, New York.

Decided January 28, 2020

Attorneys for Plaintiffs By: Jim Walden, Esq., Jacob Gardner, Esq., Walden Macht & Haran LLP, One Battery Park Plaza, 34th Floor, New York, New York 10004

Attorneys for Defendants By: Kathleen M. Sullivan, Esq., Andrew J. Rossman, Esq., William B. Adams, Esq., Alex Spiro, Esq., Quinn Emanuel Urquhart & Sullivan, LLP, 51 Madison Avenue, 22nd Floor, New York, New York 10010

David A. Weinstein, J.

The action before me arises out of plaintiffs' verified amended complaint, dated April 1, 2019, which seeks a declaratory judgment and injunctive relief finding the recently enacted and amended Article 15-a of the New York Judiciary Law in violation of the New York State Constitution. The statute provides for the creation within the State's Executive Department of the State Commission of Prosecutorial Conduct (the "Commission" or "CPC"), with the authority to investigate and review the conduct of district attorneys ("DAs") and assistant district attorneys ("ADAs"), and to determine whether such conduct "departs from the applicable statutes, case law, [and] New York Rules of Professional Conduct 22 NYCRR 1200.00, including but not limited to Rule 3.8 (Special Responsibilities of Prosecutors and Other Government Lawyers)" (see Jud Law § 499-a ).

Plaintiffs are Albany County District Attorney David Soares, purporting to represent all DAs in the State, and the District Attorneys Association of the State of New York ("DAASNY").¹ The named defendants are Carl E. Heastie, in his official capacity as the Speaker of the New York State Assembly, along with the State of New York and the yet unformed Commission — although only the Speaker has appeared. The parties have cross-moved for summary judgment, which motions are the subject of this Decision and Order. Before addressing those motions, I will summarize the history and content of the statute.

Article 15-a of the Judiciary Law

The statute creating the Commission on Prosecutorial Conduct was first enacted as Chapter 202 of the Laws of 2018. While the legislation was pending before the Governor, comments were solicited from and submitted by the Office of the New York Attorney General ("OAG"). Those comments were set forth in a memorandum on August 13, 2018, which opined that the bill contained "multiple constitutional defects." On August 20, 2018, Governor Cuomo signed the bill into law, but in an accompanying approval memorandum cited certain of these alleged defects, which the Legislature had agreed to fix via chapter amendment. The Legislature then passed amendments to the legislation, and on March 27, 2019 those amendments were signed into law by Governor Cuomo as Chapter 23 of the Laws of 2019 ("Chapter 23").²

The Statute, as amended, added Article 15-a to the Judiciary Law, creating the CPC as an entity "within the executive department" ( Jud Law § 499-a ). The Commission is to be composed of eleven members appointed as follows: four by the Governor, one each by the four legislative leaders, and three by the Chief Judge of the Court of Appeals ( Jud Law § 499-c[1] ). Of the gubernatorial appointees, two are required to have experience in public defense, and two are to have prosecutorial experience ( Jud Law § 499-c[1][a] ). The same balance is required for the four legislative appointees ( Jud Law § 499-c[1][c] ). Two of the Chief Judge's appointees must be retired judges ( Jud Law § 499-c[1][b] ). Eight members of the Commission constitute a quorum, and the votes of six members will be needed for such actions as authorizing investigations, approving dispositions and appointing referees ( Jud Law § 499-c[6] ).

The process for the Commission to open and pursue an investigation is as follows: The Commission may receive or "initiate" complaints concerning "the conduct, qualifications, fitness to perform, or performance of official duties of any prosecutor" ( Jud Law § 499-f[1] ), with "prosecutor" defined to include both DAs and ADAs. In addition, following receipt of a written complaint, the Commission "shall conduct an investigation," except that it may dismiss the complaint if "on its face [it] lacks merit" (id. ). The Commission can require a prosecutor under investigation to appear before it and give testimony under oath, with the right to be represented by counsel ( Jud Law § 499-f[3] ). Additionally, the Commission can subpoena books and records, and take testimony of other witnesses under oath ( Jud Law § 499-d[1] ). It has the power to confer immunity on witnesses, provided it gives at least 48 hours notice and the opportunity for consultation to the Attorney General and "the appropriate district attorney" ( Jud Law § 499-d[2] ). The Commission may also seek assistance from other law enforcement bodies, and issue rules and procedures that govern its operations ( Jud Law § 499-d[3], [5] ).

The statute provides a mechanism for a DA's office to address CPC actions that it believes are interfering with its investigative work. A prosecutor's office may, by affirmation made with "specificity and particularity," inform the Commission that a CPC investigation "substantially interferes" with a criminal investigation being carried out by the DA ( Jud Law § 499-d[1] ). If it does so, the Commission "shall only exercise its powers in a way that will not interfere with [a DA's] active investigation or prosecution and in no event shall the commission exercise its powers prior to the earlier of: (a) the filing of an accusatory instrument with respect to the crime or crimes that led to such prosecuting agency's investigation and underlie the complaint; or (b) one year from the commencement of the occurrence of the crime or crimes that led to such prosecuting agency's investigation and underlie the complaint" (id. ).

If the Commission determines that the findings of its investigation necessitate a hearing, it "shall direct that a formal written complaint signed and verified by the [Commission] administrator be drawn and served upon the prosecutor involved" ( Jud Law § 499-f[4] ). The statute sets forth various procedures by which a prosecutor may in advance of a hearing obtain relevant documents, including "exculpatory evidence" (id. ). The prosecutor is also given the right at the hearing to cross-examine witnesses, present evidence, and be represented by counsel (id. ). The hearing is not public, unless the prosecutor demands that it be so, and all materials related to the investigation are to be kept confidential unless and until the Commission issues a disposition involving some sanction (id. ; Jud Law §§ 499-g & 499-h ). The complainant, however, may appear within the discretion of the Commission, or if he or she is subpoenaed by the prosecutor ( Jud Law § 499-f[4] ). The parties may agree to waive the hearing and instead have a determination made on a stipulated statement of facts ( Jud Law § 499-f[5] ). The Commission may carry out certain of its appointed tasks via appointment of referees, or three-member panels, except that a panel cannot confer immunity, nor may it authorize a complaint, investigation or imposition of final recommendation or sanction (see Jud Law § 499-e ).

Following the hearing, the Commission may (1) dismiss the complaint; (2) "determine that the prosecutor be admonished or censured"; or (3) "recommend to the governor that a prosecutor be removed from office for cause" ( Jud Law § 499-f[6]-[7] ).

The Commission may reach one of these determinations upon a finding that a prosecutor has engaged in "misconduct in office, as evidenced by [the prosecutor's] departure from his or her obligations under appropriate statute, case law, and/or New York Rules of Professional Conduct, 22 NYCRR 1200, including but not limited to Rule 3.8 (Special Responsibilities of Prosecutors and Other Government Lawyers), persistent failure to perform his or her duties, [or] conduct prejudicial to the administration of justice" ( Jud Law § 499-f[1] ). In addition, it may recommend that a prosecutor be retired for "mental or physical disability preventing the proper performance of his or her prosecutorial duties" (id. ).

A Commission determination of admonition, censure or recommended removal is served on the presiding justices of the Appellate Division, and on the prosecutor ( Jud Law § 499-f[7] ). At that point it becomes public, along with the record of the proceedings (id. ). The prosecutor may "accept the determination of the commission or make written request ... within thirty days after receipt of such determination, for a review thereof by the presiding justices of the appellate division" (id. ). If the prosecutor accepts a determination of recommended removal or retirement, or does not appeal it to the presiding justices of the Appellate Division, the Governor nonetheless "independently determines" whether the prosecutor will be removed or retired (id. ). If the prosecutor requests review by the presiding justices, they may "accept or reject the determined sanction; impose a different sanction including admonition or censure, recommend removal or retirement ...; or impose no sanction" ( Jud Law § 499-f[8] ). The statute also gives the presiding justices the right to temporarily suspend a prosecutor when there is a recommendation for removal or retirement, or "when he or she is charged with a crime punishable as a felony under the laws of this state, or any other crime which involves moral turpitude" ( Jud Law § 499-f[9][a]-[b] ). Such suspension is with pay "unless the court directs otherwise"³ ( Jud Law § 499-f[9][c] ).

Again, any...