STATE OF NEW YORK

OFFICE OF THE ATTORNEY GENERAL

BARBARA D. UNDERWOOD LESLIE B. DUBECK
ATTORNEY GENERAL GENERAL COUNSEL

MEMORANDUM

TO: Alphonso B. David

Counsel to the Governor

FROM: Leslie B. Dubeck

General Counsel

DATE: August 13, 2018

RE: State Commission on Prosecutorial Conduct, S. 2412-D; A. 5285-C

You have asked the Office of the Attorney General (OAG) to evaluate the
above-referenced bill (the “Bill”), which has passed both houses of the Legislature and
has been sent to the Governor for his signature or veto, and opine as to whether a
court is likely to deem its provisions consistent with our State’s Constitution. While
the goal of the Bill—holding prosecutors accountable for their actions—is vitally
important, the OAG has concluded after careful consideration that the structure and
powers of the proposed commission as set forth in the Bill contain several
constitutional defects that are not likely to survive judicial review.

Overview

The Bill creates a Commission on Prosecutorial Conduct vested with a power

of general oversight over the exercise of prosecutorial discretion and tasks the Court
of Appeals with reviewing the determinations of the commission. Several features of
the proposed commission would violate the constitutional separation of powers;
interfere with the constitutionally protected core functions of the office of District
Attorney; and confer impermissible powers and duties on the judiciary.

In particular, the following features of the Bill are likely to be deemed

constitutionally infirm by a reviewing court.
 A. The Scope of the Proposed Commission’s Authority

1. The proposed commission’s investigatory mandate authorizes the

commission not only to enforce applicable legal and ethical rules of conduct,
but also to engage in general supervision of the performance of District
Attorneys and their staff. The commission is empowered to investigate—
whether on complaint or on its own initiative—the “conduct, qualifications,
fitness to perform, or performance of official duties of any prosecutor,” a
term that includes any District Attorney or Assistant District Attorney.
Proposed Judiciary Law § 499-f(1); see also id. §§ 499-b(2), 499-c(4),
499-f(2). The commission is also authorized to recommend removal of a
prosecutor “for cause,” a standard that includes, but is not limited to,
“misconduct in office, as evidenced by his or her departure from his or her
obligations under appropriate statute, case law, and/or New York Rules of
Professional Conduct . . . , persistent failure to perform his or her duties,
habitual intemperance and conduct, in and outside of his or her office,
prejudicial to the administration of justice.” Id. § 499-f(1). This expansive
language authorizes the commission to review all of the myriad
prosecutorial decisions taken by District Attorneys and their staffs and
defines no standard by which those decisions will be evaluated.1

2. The proposed commission is empowered to investigate prosecutorial

decision-making in open criminal investigations and prosecutions. A
District Attorney’s Office may inform the commission “by affirmation with
specificity and particularity” that an investigation by the commission “will
substantially interfere” with the office’s investigation, id. § 499-d(1), but
that will not preclude the commission’s review. Rather, the commission,
exercising its own judgment, is then responsible for protecting the open
investigation and prosecution from interference. Id. (“[T]he commission
shall only exercise its powers in a way that would not interfere with [the]
active investigation or prosecution.”). Allowing the commission to review
prosecutors’ conduct in open investigations and prosecutions creates the
real potential that the commission could, whether purposefully or not,
influence prosecutors’ decision-making in an open case.

1 In describing the commission’s authority to investigate prosecutors’ “conduct,

qualifications, fitness to perform, or performance of official duties,” the Bill uses the
same language used by Judiciary Law § 44(1) and article VI, § 22(a), of the
Constitution to describe the investigatory power of the State Commission on Judicial
Conduct. Unlike the Commission on Judicial Conduct, the proposed Commission on
Prosecutorial Conduct would lack a constitutional provision creating it or describing
its functions and duties.

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 3. The proposed commission is empowered to compel production of records and
testimony that may intrude into a District Attorney’s deliberative process.
The commission would have the power to “subpoena witnesses, compel their
attendance, examine them under oath or affirmation and require the
production of any books, records, documents or other evidence that it may
deem relevant or material to an investigation.” Id. To the extent that the
commission incorporates those records into its proceeding, those records
must then “be made available for public inspection.” Id. § 499-f(7). Candid
and independent analysis in internal deliberations is essential to just and
effective law enforcement, and the compulsory disclosure of those records
to the public, or even to the commission, may chill such analysis and
interfere with a District Attorney’s deliberative processes.2

B. The Membership of the Commission

4. The commission is given authority to discipline District Attorneys or

Assistant District Attorneys—members of the executive branch—whose
conduct it deems problematic. But the commission is a hybrid of executive,
judicial, and legislative appointees, with a majority appointed by members
of the Legislature. Id. § 499-c(1). Thus, the commission’s actions are neither
an exercise of executive power over the executive branch nor an exercise of
judicial supervision over the practice of law, but rather, an exercise of
legislative power over the executive branch with no warrant in the
Constitution.

C. The Role of the Judiciary

5. The Bill assigns new functions to the Court of Appeals and its judges,
although their powers are strictly defined by the Constitution. In
particular, it empowers the Court to review the commission’s
determinations, to make recommendations to the Governor, and to remove
prosecutors from office on an interim basis. Id. § 499-f(8)- (9). It also directs
the Chief Judge to appoint other judges as members of the commission.

6. The Bill assigns non-judicial tasks to judges, including requiring them to

review allegations in an administrative capacity that they may be called
upon later to review in a judicial capacity.

2The U.S. Department of Justice has cited these same concerns to justify withholding
deliberative materials and materials relating to ongoing investigations from
congressional review, even in response to a congressional subpoena that would
appear to compel such materials. See Letter from Assistant Attorney General Robert
Raben to Representative John Linder at 5-6 (Jan. 27, 2000), available at
https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/linder.pdf.

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Constitutional Analysis

A. The Scope of the Commission’s Authority Likely Impermissibly

Interferes with Core Powers of the State’s District Attorneys.

As noted above, the Bill gives the proposed commission general oversight over
the exercise of prosecutorial discretion, extending beyond the enforcement of legal
and ethical rules. It gives the commission broad investigatory power, including into
open investigations and prosecutions. And it empowers the commission to compel (or
threaten to compel) the disclosure of profoundly sensitive documents and
information, or take (or threaten to take) disciplinary action against a prosecutor for
any decision of which it disapproves, for any reason. The Bill thus creates a
substantial risk that prosecutorial decision-making will be, or will appear to have
been, influenced by the commission.

A court is likely to find that a commission with these powers would seriously
impair the prosecutorial independence of the State’s District Attorneys—and thus
violate the Constitution’s longstanding ban on laws that interfere with the core
functions of constitutional officers. Where the Constitution creates or recognizes an
office and prescribes how it is to be filled, the Legislature may not interfere with the
prescribed method of selection by passing laws that deprive the office-holder of “a
substantial attribute of the office.” People ex rel. Wogan v. Rafferty, 208 N.Y. 451, 456
(1913). Thus, “the Legislature may not transfer any essential function of the office to
a different officer chosen in a different manner.” Id. Nor may it abolish the office or
any of its essential functions. See id.

This rule applies to the office of District Attorney, which the Constitution
requires to be filled by election in each county every three or four years (as the
Legislature directs). See N.Y. Const. art. XIII, § 13(a). District Attorneys are thus
“constitutional officers charged with the responsibility for prosecuting offenders in
the county they represent and possessing broad discretion in determining when and
in what manner to do so.” Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 573 (1988).
Accordingly, as the Constitution’s framers recognized, “the Legislature is prohibited
from interfering with the office in any essential respect.” N.Y. Const. Convention
Comm., Reports, v. 11, Problems Relating to Home Rule and Local Government122
(1938); see also id. (although the Legislature “may modify or enlarge the powers and
duties” of constitutional officers, “it cannot substantially impair them”); N.Y.
Temporary State Comm’n on the Const. Convention, Report No. 14, State Government
199 (1967) (“Since district attorneys are constitutional officers, their office may not
be abolished or their duties substantially impaired by legislative action.”).

An essential feature of the office of District Attorney is the exclusive,

nontransferable, “‘discretionary power to determine whom, whether and how to

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prosecute [a criminal] matter’, the responsibility and accountability for which is not
freely transferable to anyone else.” Matter of Haggerty v. Himelein, 89 N.Y.2d 431,
436 (1997) (quoting Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 52 (1983)). This
discretion is comprehensive. It includes not only questions about when and whom to
prosecute, but which charges to bring, see People v. Cajigas, 19 N.Y.3d 697, 702-03
(2012), which sentence to seek, see Matter of Johnson v. Pataki, 91 N.Y.2d 214, 226
(1997), and whether a matter should be pursued at all, see People v. Di Falco, 44
N.Y.2d 482, 487 (1978). The authority to hold a District Attorney accountable for the
lawful exercise of prosecutorial discretion is reserved to the voters.3

A court is likely to find that the proposed commission would compromise the
ability of District Attorneys to exercise that discretionary power in an independent
manner accountable to the constituents they serve. Such an arrangement would
therefore violate the constitutional right of the voters in each county to have a District
Attorney chosen by them specifically as a prosecutor and responsive to their needs
and demands. As one court has observed, the framers of the Constitution “may well
have feared to give . . . power over the persons of citizens to any one not chosen by
them.” People ex rel. McEwen v. Keeler, 64 How. Pr. 478, 483 (N.Y. Gen. Term 1883)
(discussing County Sheriff’s function as jailor). Thus, consistent with “the old
principles of English law,” the framers provided that “[a] power so great . . . should
be intrusted only to an officer chosen by the people” for that purpose. Id. at 482-83;
see also People v. Zimmer, 51 N.Y.2d 390, 393-94 (1980) (describing public
prosecutor’s “paramount obligation” to the public and corresponding “wide latitude”
to act).

B. The Membership of the Commission Likely Violates the Separation of

Powers and Related Constitutional Provisions.

A court is likely to find that the membership of the proposed commission would
violate the separation of powers by vesting oversight of an executive function in a
hybrid disciplinary body appointed by executive, legislative, and judicial actors, with
a majority appointed by the Legislature. See Proposed Judiciary Law § 499-c(1). The
commission thus neither constitutes an exercise of executive power over the executive
branch nor an exercise of judicial supervision over the practice of law, but rather, an
exercise of legislative power over the executive branch. That arrangement violates
the separation of powers—and would do so even if the commission were limited to
enforcing applicable legal and ethical rules of conduct, were barred from inquiring
into open investigations and prosecutions, and were limited in its ability to obtain
deliberative material.

3 The grievance committees and supervising courts are empowered to hold a

prosecutor accountable for unlawful or unethical conduct. Those mechanisms—which
do not review the exercise of executive prosecutorial discretion—do not suffer from
the constitutional infirmities identified here.

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 The power to prosecute crime is an executive function. As the Court of Appeals
has explained, the prosecution of criminal actions “is solely within the broad
authority and discretion of the district attorney’s executive power.” Matter of Soares
v. Carter, 25 N.Y.3d 1011, 1013 (2015). Courts accordingly “lack the authority to
compel the prosecution of criminal actions,” id., or “interfere with the prosecutor’s
authority” to dismiss charges, People v. Murray, 129 A.D.2d 319, 321 (1st Dep’t 1987)
(quotation marks omitted), aff’d sub nom. People v. Robles, 72 N.Y.2d 689 (1988); see
also Matter of Holtzman, 71 N.Y.2d at 573-74 (observing that courts lack inherent
power to dismiss criminal actions for failure to prosecute and that a court’s
“precipitous dismissal” of a prosecution “raises separation of powers concerns”). The
Constitution likewise prohibits legislative “encroachment on the power of the
executive branch, as represented specifically by the State’s prosecutors,” to bring
criminal actions. Forti v. New York State Ethics Comm’n, 75 N.Y.2d 596, 616 (1990).4

Courts have emphasized the importance of independence in the prosecutorial

decision-making that is reserved to the District Attorney. As one appellate court
explained, “[t]he responsibilities attendant the position of [District Attorney]
necessitate the exercise of completely impartial judgment and discretion.” Murray,
129 A.D.2d at 321 (quotation marks omitted); see also Di Falco, 44 N.Y.2d at 487. As
the Court of Appeals has explained, the State “has a fundamental and overriding
interest in ensuring the integrity and independence of the office of district attorney.”
Matter of Hoerger v. Spota, 21 N.Y.3d 549, 553 (2013). The Court thus invalidated a
Suffolk County law imposing term limits on the office of District Attorney, because
the law “would have the potential to impair the independence of that office because
it would empower a local legislative body to effectively end the tenure of an incumbent
district attorney whose investigatory or prosecutorial actions were unpopular or
contrary to the interests of county legislators.” Id.

Thus, a court would likely decide that the bill violates these principles by
assigning disciplinary authority over the executive actions of the State’s prosecutors
to a composite body composed mostly of members appointed by the Legislature. The
Constitution does not countenance such an arrangement. To be sure, it recognizes
that District Attorneys are properly subject to executive oversight by providing for
their removal by the Governor. See N.Y. Const. art. XIII, §13(a). And it recognizes

4 In Forti, the Court reviewed language of Public Officers Law § 73, which defined
certain conduct as a misdemeanor offense, but only if the commission referred the
conduct to an appropriate prosecutor. The Court observed that requiring the referral
as a precondition to prosecution was “highly troublesome,” Forti, 75 N.Y.2d. at 616,
and that the constitutional objections to such language “have merit,” id. at 617-18,
but the Court was not called on to actually resolve those objections because the appeal
was resolved on other grounds. The Court has not since had occasion to resolve those
constitutional objections to various provisions of Public Officers Law § 73.

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that District Attorneys are subject—as attorneys—to judicial oversight of their
practice of law. See Matter of Curry v. Hosley, 86 N.Y.2d 470, 473 (1995) (the
Constitution requires that a District Attorney be “an attorney-at-law and an officer
of the court qualified to prosecute and defend legal actions on behalf of clients, bound
by rules and principles of professional ethics and subject to internal processes of
attorney discipline”). But the Constitution does not provide for District Attorneys to
be disciplined by the Legislature, or by a hybrid body including legislative
appointees.5

A court is likely to deem this structure a violation of the separation of powers.

“[T]he Separation of Powers Doctrine ‘is a structural safeguard rather than a remedy
to be applied only when specific harm, or risk of specific harm, can be identified.’”
Matter of Maron v. Silver, 14 N.Y.3d 230, 260-61 (2010) (quoting Plaut v. Spendthrift
Farm, Inc., 514 U.S. 211, 239 (1995)). “‘In its major features . . . it is a prophylactic
device, establishing high walls and clear distinctions because low walls and vague
distinctions will not be judicially defensible in the heat of interbranch conflict.’” Id.
(quoting Plaut, 514 U.S. at 239)); see also The Federalist No. 51 (“If angels were to
govern men, neither external nor internal controls on government would be
necessary.”).

Moreover, the composition of the commission would violate related

constitutional restrictions on the creation of new civil departments. Sections 2 and 3
of article V of the Constitution require that the executive and administrative
functions of the State be organized into no more than twenty “civil departments.”
Section 4 of article V further specifies that, unless otherwise provided in the
Constitution, the heads of departments “shall be appointed by the governor by and
with the advice and consent of the senate.” The exception to these limitations is that
the Legislature may create “temporary commissions for special purposes,” N.Y.
Const. art. V, § 3, and that appointments to such a temporary commission are not
required to be by gubernatorial appointment, id. § 4.

The proposed commission would run afoul of these constitutional limitations

because it is outside of any existing civil department and was not created as a
temporary commission for special purposes. Compare People v. Tremaine, 252 N.Y.
27, 51 (1929) (holding that the Legislature violated article V by its “distribution of
administrative functions to members of the Legislature, rather than to the
constitutionally created civil departments”), with Matter of Commission of
Investigation of State of N.Y. v. Lombardozzi, 7 A.D.2d 48, 53 (1st Dep’t 1958) (finding

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The creation of such a body could also chill—or appear to chill—the investigation or
prosecution of individuals or entities with close ties to the Legislature, which would
appoint a majority of the commissioners. The mere appearance of such undue
influence would greatly undermine public confidence in the criminal justice system,
and further erode the constitutionally protected independence of District Attorneys.

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Commission constitutional because it was temporary and for a special purpose), aff’d,
5 N.Y.2d 1056 (1959); Matter of Cronin v. Temporary N.Y. State Comm’n of
Investigation, 19 A.D.2d 689, 690 (3d Dep’t) (same), aff’d, 13 N.Y.2d 941 (1963).6

The requirement that executive functions be allocated to a civil department is

not simply a formality. The requirement was added to the Constitution in 1925 with
the “clear intention . . . to bring greater economy and efficiency to government and
confer greater power and, concomitantly, greater accountability upon the Governor.”
Matter of Capelli v. Sweeney, 167 Misc. 2d 220, 232 (Sup. Ct. Kings County), aff’d on
op. below, 230 A.D.2d 733 (2d Dep’t 1996). Before those provisions were added, the
executive branch had become “a miscellaneous collection of 187 offices, boards,
commissions and other agencies . . . independent of one another and most . . . subject
to no direct and effective supervision by a superior authority.” Id. at 227 (quotation
marks omitted). The prohibitions of article V were meant to prevent the Legislature
from creating new agencies and boards “haphazardly without regard to any existing
structure.” Id. at 227-28.

The creation of the proposed commission outside of any existing civil

department is just the type of haphazard creation that article V prohibits—an entity
exercising executive powers that is not subject to supervision or accountable to any
executive officer (e.g., the head of a department).7 In addition to violating article V,
the grant of executive power to the proposed commission without executive oversight
also may violate the principle of separation of powers. See Free Enterprise Fund v.
Public Co. Accounting Oversight Bd., 561 U.S. 477, 498 (2010) (granting federal
regulatory body “executive power without the Executive’s oversight . . . subverts the
President’s ability to ensure that the laws are faithfully executed” and is
“incompatible with the Constitution’s separation of powers”).

C. The Bill Likely Impermissibly Expands the Role of the Judiciary.

Finally, a court is likely to decide that the Bill violates the Constitution both
by assigning new functions to the Court of Appeals and its judges and by requiring
judges to perform nonjudicial tasks.

6 To the extent that constitutional infirmity could be overcome by viewing the

commission as a new civil department, the commission would then be
unconstitutional because its commissioners are not appointed by the Governor with
the advice and consent of the Senate, as required by § 4 of article V.
7 Proposed Judiciary Law § 499-c provides for the appointment of commissioners for
fixed terms, but does not provide any mechanism for removal of a commissioner, even
for good cause. If the power to remove is incidental to the power to appoint, see, e.g.,
Sampson v. Murray, 415 U.S. 61, 70 n.17 (1974), then the commissioners will be
accountable—but to various supervisors, many outside the executive branch.

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 The Court of Appeals is a court of limited jurisdiction, defined by the
Constitution, and the Legislature has no power to expand its jurisdiction. N.Y. Const.
art. VI, § 3. That restriction is violated by the provision of the Bill assigning the Court
of Appeals the power to review decisions of the commission, and by the provision
assigning the Court of Appeals the power to remove a District Attorney on an interim
basis. Likewise, the powers of the Chief Judge are specified by the Constitution, and
that restriction is violated by the provision requiring the Chief Judge to appoint
members of the commission. The Constitution specifically authorizes the Chief Judge
to exercise certain appointment powers relating to the operation of the judiciary, e.g.,
id. § 2(d) (Chief Judge appoints members to the Commission on Judicial Nomination);
id. § 22(b) (Chief Judge appoints members to the Commission on Judicial Conduct);
id. § 28 (Chief Judge appoints a Chief Administrator of the Courts), but does not vest
the Chief Judge with any general power of appointment. Nor is the power of
appointment inherent in the office of Chief Judge, because the power of appointment
is an executive power. See 1 Annals of Cong. 481 (June 16, 1789); N.Y. Const. art. V,
§ 4.

More generally, the Bill violates the principle that judges may not be assigned
administrative or executive functions unless those functions are “reasonably
incidental to the fulfilment of judicial duties.” Matter of Richardson, 247 N.Y. 401,
410 (1928). Assigning nonjudicial powers to a judge is an “encroachment upon the
independence of judicial power.” Id. at 411. Applying these principles, the Court of
Appeals (Cardozo, C.J.) invalidated a statute that authorized the Governor to enlist
a justice of the Supreme Court to conduct an investigation and collect evidence to aid
in the Governor’s exercise of his executive power to remove a public officer. Id. at
411.8 In our constitutional system, “[t]he function of the judges ‘is to determine
controversies between litigants.’” Id.

The pending bill violates this principle by assigning executive duties to the
judiciary in several ways.

First, the Bill vests judges who serve on the commission with the power to
investigate a prosecutor’s performance of official duties, reach factual and legal
conclusions, and issue a recommendation as to removal. (See supra page 3). These
powers are executive. As James Madison stated on the floor of the First Congress, “if
any power whatsoever is in its nature executive, it is the power of appointing,
overseeing, and controlling those who execute the laws.” 1 Annals of Cong. 481. The
Court of Appeals has likewise observed that “[i]n this country the power of removal

8 The Court further held that any exercise of such powers by the judge would be the
acceptance of a “public trust” by the judge, in violation of the prohibition that is now
in § 20(b)(1) of article VI of the Constitution. Matter of Richardson, 247 N.Y. at 419-
20. The prohibition on certain judges accepting a “public trust” is yet another
constitutional hurdle to the pending legislation.

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is an executive power, and in this state it has been vested in the governor by the
people.” Matter of Guden, 171 N.Y. 529, 531 (1902); see also see N.Y. Const. art. XIII,
§ 13(b); Matter of Hoerger, 21 N.Y.3d at 552 (“[A] district attorney is subject to
removal from office, not by county officials, but by the Governor.”).

The powers provided to the proposed commission cannot be reclassified as

judicial based on the Judiciary’s inherent power to investigate and discipline
attorneys. As the Court in Matter of Richardson observed, the powers to conduct an
investigation and to collect evidence are “nonjudicial” when those powers are
undertaken to aid in the performance of executive oversight and removal authority.
247 N.Y. at 410. Likewise, the proposed commission’s investigative powers are not
limited to the judicially appropriate task of overseeing the conduct of attorneys as
attorneys, but extends to the executive task of monitoring the conduct of prosecutors
as executive officials.

Second, the Bill requires the Court of Appeals to review and make
recommendations in aid of the executive function of removal. For the reasons
described above, those too are executive functions that cannot be assigned to the
judiciary.

Third, the Bill allows the Court of Appeals to remove a District Attorney (on
an interim basis). Proposed Judiciary Law § 499-f(9). That is an executive function
assigned to the Governor, see Matter of Guden, 171 N.Y at 531; N.Y. Const. art. XIII,
§ 13(b), not the courts.

Fourth, the Bill provides the Chief Judge with the power to appoint members
of the commission who in turn will exercise executive power. As noted above, the
power of appointment (other than those appointments specifically reserved to the
Chief Judge) is an executive power. See 1 Annals of Cong. 481; N.Y. Const. art. V, § 4.
It may be not be assigned to the judiciary unless authorized by the Constitution itself,
as noted above.

The prohibition against judges exercising nonjudicial functions operates “to

conserve the time of the judges for the performance of their work as judges, and to
save them from the entanglements, at times the partisan suspicions, so often the
result of other and conflicting duties.” Matter of Richardson, 247 N.Y. at 420. This
purpose reinforces the conclusion that this aspect of the pending bill would be deemed
an unconstitutional assignment of executive powers to the judiciary, because the
tasks assigned to judges are likely to be incongruous with their judicial functions.
The proposed law creates a likelihood that judges will review the same conduct twice
in two different capacities—once as a judge in a judicial proceeding, and once as a
reviewer of executive conduct.

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 * * *

In sum, despite the laudable purpose of the Bill, in OAG’s opinion it suffers
from numerous constitutional defects that will likely lead a court to invalidate it
and thus prevent it from serving its intended purpose.

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