Issue before the Court: Whether Executive Law § 552, which permits the governor to appoint a special prosecutor to investigate and prosecute abuse and neglect cases against vulnerable victims that arise from institutions overseen by the state, is constitutional.

Held: Unconstitutional (6-0, with two concurring opinions) because such powers are reserved for the elected district attorneys.

Discussion: Following news reports about the abuse and neglect of special needs individuals in state institutions, in 2012, the legislature created a “justice center” with a “special prosecutor” to investigate and prosecute such cases.  The special prosecutor was granted concurrent authority with district attorneys.  The three defendants in this consolidated appeal were charged by the special prosecutor and claimed the statute was an impermissible delegation of prosecutorial authority to an unelected official.  All trial courts, Appellate Divisions, and every judge on the COA agreed.  

The legislature may not transfer any essential function from a constitutionally established office.  Here, the district attorneys have the discretionary power to determine whom to prosecute.  This stood in contrast to the cases where the appointment of the special prosecutor was made at the behest of the district attorney in particular cases because the district attorney was incapable of prosecuting due a conflict or other such circumstance.

CAL observes: The decision seems evident and compelled.  The Court, however, had to deal with its recent prior decision in Davidson (2016), in which a majority (in a strange unsigned memorandum opinion) found the same constitutional claim unpreserved over a two-judge dissent (which, coincidentally, reads as if it once was the majority opinion).  Here, the majority explicitly adopts the dissent’s analysis in Davidson, with only Judge Stein, who was in the majority in Davidson, penning a concurrence asserting that Davidson was largely correct.  One could point to all of this as being Exhibit A in the stupidity of New York’s preservation rules.

Also of note was COA’s unpersuasive attempt to distinguish the statutes creating the Special Narcotics Prosecutor for the City and the Statewide Organized Crime Task Force.  The COA opined that those statutes were a proper delegation of prosecutorial authority because the heads of the offices (an ADA and a DAG) were on the staff of elected officials with that prosecutorial authority, in contrast to § 552, where the special prosecutor did not have to be an ADA or DAG.  That seems a thin reed on which to claim that the constitutional authority to prosecute were not impermissibly delegated.