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N.Y. High Court Strikes Down Special Prosecutor Statute

An interesting state constitutional decision.


From People v. Viviani, a unanimous opinion written by Judge Garcia

As part of the Protection of People with Special Needs Act, the Legislature enacted Executive Law § 552, which created a special prosecutor, appointed by the Governor, empowered to investigate and prosecute crimes of abuse or neglect of vulnerable victims in facilities operated, licensed, or certified by the State. The special prosecutor, acting pursuant to this statutory authority, obtained indictments against the three defendants in the cases before us. {Each … defendant … was alleged to have sexually abused a vulnerable person in the defendant's care.} ….

We recognize that this well-intentioned legislation was aimed at protecting a particularly vulnerable class of victims. But we cannot rewrite a statute in order to save it. Accordingly, we hold the provisions of Executive Law § 552 creating a special prosecutor with authority concurrent with that of the District Attorneys to be unconstitutional and, on that ground, affirm….

More than 100 years ago, in People ex rel. Wogan v. Rafferty (1913), we considered a constitutional challenge to legislation authorizing the Kings County Clerk, an elected constitutional officer, to appoint a Deputy County Clerk who would have the full power to act as the chief clerk for the County Court of Kings County. The "fundamental objection" to the law was that it took away "from the county clerk, who is a constitutional officer, an integral and essential part of his office, to wit, the clerkship of the County Court," and gave it to a non-elected, non-constitutional officer. In holding the challenged provisions unconstitutional, this Court made clear that "[w]here the Constitution establishes a specified office, or recognizes its existence, and prescribes the manner in which it shall be filled, the [L]egislature may not transfer any essential function of the office to a different officer chosen in a different manner." …

[T]he creation of the special prosecutor by the Legislature runs afoul of the rule set out in Wogan—namely, … Executive Law § 552 takes an essential function from a constitutional officer and gives it to a different officer chosen in a different manner. We conclude that it does….

Although the Constitution establishes the elected office of the District Attorney, it does not assign prosecutorial authority to any constitutional officer, leaving that allocation as a matter for the Legislature. The County Law accomplishes the task by providing that it is the "duty of every district attorney to conduct all prosecutions for crimes and offenses cognizable by the courts of the county for which [such District Attorney] shall have been elected or appointed." District Attorneys, in sum, "have plenary prosecutorial power in the counties where they are elected." And, as we have explained on a number of occasions, "the essence of a District Attorney's constitutional, statutory and common-law prosecutorial authority is the 'discretionary power to determine whom, whether and how to prosecute [in] a criminal matter.'"

The history of the office of the District Attorney and the scope of the authority allocated to this officer answers the constitutional question. Executive Law § 552 deprives the elected District Attorneys of an essential function of their constitutional office—namely, the "'discretionary power to determine whom, whether and how to prosecute [in] a criminal matter')—by vesting concurrent discretionary power in a different officer, appointed by the Governor. Accordingly, the statute runs afoul of the rule set out in Wogan.

Nor can the constitutionality of Executive Law § 552 be preserved by application of the canon of statutory interpretation providing that a statute should be construed, whenever possible, in a way that avoids placing its constitutionality in doubt…. The Attorney General proposes we "find implicit" in the statute a requirement that, in order for the special prosecutor to act, the local District Attorney must (1) consent—perhaps even in writing—to the prosecution, and (2) retain the ultimate responsibility for that prosecution. This we cannot do.

The touchstone of the avoidance canon is the text of the statute, and, unquestionably, the text of Executive Law § 552 contains no express requirement that the local District Attorney consent to, and retain authority for, the prosecution of the designated crimes…. To the contrary, [such a construction] is at odds with the Special Needs Act…. This Court is "not at liberty to save a statute by, in effect, rewriting it in a manner that contravenes its unambiguously articulated legislative purpose."

Judge Rivera agreed that the statute was unconstitutional as written, but would have concluded that "Executive Law § 552 may be interpreted to allow the Special Prosecutor to appear in criminal matters on consent of the local District Attorney, who would retain 'ultimate, nondelegable responsibility' for the prosecution."