New York State’s DA’s Association Files Suit Challenging Cuomo Legislation


ALBANY – The District Attorney’s Association of the State of New York (DAASNY) started legal action Thursday to declare that a law that would create a Commission on Prosecutorial Conduct (CPC) violates the New York State Constitution.

“This legislation has numerous constitutional impediments and would violate the separation of powers. DAASNY is committed to upholding our Constitution and therefore we have no choice but to file this lawsuit,” said DAASNY President, Albany County District Attorney David Soares. “Prosecutors take an oath to defend the Constitution and every day in courtrooms all over the state. We do just that. It is because of that oath that we are pursuing this litigation.”

The legislation, S2412D/A5285C (attached), was passed by the New York State Assembly and Senate in June and was signed into law by New York State Governor Andrew Cuomo on Aug. 20 despite being advised by the Attorney General’s office that it was unconstitutional. The bill amends the State Judiciary Law by creating the CPC, which is empowered to review and investigate prosecutorial conduct.



The named plaintiffs in the action include DAASNY, David Soares, as the elected District Attorney of Albany County, and Robert J. Masters, an Assistant District Attorney from Queens County.

The defendants include Cuomo, the Temporary President of the Senate, and the Speaker of the Assembly, among others. In a Summons and Complaint filed in Albany County Supreme Court, DAASNY contends that the statute flagrantly violates the State Constitution on multiple grounds.

Among the constitutional offenses, the statute:



  • Impermissibly interferes with the constitutionally protected independence and core functions of elected District Attorneys by granting the CPC general oversight and disciplinary authority over the exercise of prosecutorial discretion.
  • Violates basic separation-of-powers principles by vesting oversight of an executive function in a hybrid disciplinary body.
  • Impermissibly expands the powers and jurisdiction of the Court of Appeals and Chief Judge.
  • Unlawfully compels judges to perform non- judicial tasks.
  • Intrudes upon the exclusive jurisdiction of the Appellate Division over matters of attorney discipline.
  • Subjects prosecutors to disciplinary standards without any governing standards, in contravention of their due process and equal protection rights.
  • Creates a commission with administrative and executive duties that operates outside the clear confines of the Constitution’s civil department system.

DAASNY is being represented, on a pro bono basis, by Jim Walden of Walden, Macht & Haran LLP. Walden, who will be assisted by Jacob Gardener, has litigated a number of important cases involving constitutional violations and government overreach.

Gardener has previously sued the Cuomo administration for the manipulation of vote-counting as well as for the illegal closure of a SUNY-run hospital. He also sued New York City Mayor Bill DeBlasio’s administration over the denial of children’s constitutionally protected right to education by failing to enforce rules to prevent in-school bullying.

In addition, Walden has sued the Obama administration over both the systematic failures to conduct fair disability hearings and the wrongful deportation of aliens with minor misdemeanor offenses

“Despite being warned of numerous fundamental problems by DAASNY, the Legislature chose to pass a flagrantly unconstitutional statute. Sadly, the governor compounded that error by signing it into law, rather than appropriately exercising a veto. This law threatens the independence of District Attorneys, alters the role of our judiciary, and intrudes into law enforcement’s performance of its duties while simultaneously violating the due process rights of prosecutors,” said President Soares. “The stated goal of this legislation is to enhance the review of instances of prosecutorial misconduct. DAASNY welcomes the opportunity to improve the disciplinary system for all those who practice law, while not offending ourbstate’s constitution, interfering with the discretion afforded prosecutors or jeopardizing public safety.”

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