A New York trial court judge on Monday declared the state’s 14-month-old ethics panel
unconstitutional, stripping the new body of its investigative and enforcement authority,
in a preliminary legal win for former New York Gov. Andrew Cuomo.
State Supreme Court Justice Thomas Marcelle of Albany County wrote that Democratic
lawmakers seemingly tried to create a fourth branch of government, with a vetting
process reliant on law school deans.
Cuomo’s legal team of Gregory J. Dubinsky of Holwell Shuster & Goldberg and Rita
Glavin sued the state in April, arguing that the New York State Commission on Ethics
and Lobbying in Government, which was established in July 2022, unconstitutionally
violated the separation of powers doctrine, since the commission was untethered to the
state government structure.
Marcelle, a Republican who’s in his first year as a state Supreme Court justice, said
COELIG unconstitutionally divests the governor of her authority in that the act used 15
unelected deans of New York’s accredited law schools to vet and appoint nominees to
the commission.
Marcelle likened the academics to “private operators.”
“Never in New York’s history has the Legislature conceived a body that exercises
executive authority where the Governor’s role is confined only to nominating a minority
of that body,” Marcelle wrote. “Moreover, nothing in the record suggests that private
operators (like a bunch of deans) have ever been allowed to vet and appoint nominees
against a standard invented by those same private operators.”
Marcelle also seemed to take exception with the manner in which a commissioner is to
be removed: only by a majority vote of fellow commissioners.
“This incestual removal process deprives the Governor from any say in discharging a
commissioner,” the judge wrote.
Marcelle went on to write that, because the commission decides if and how severely to
punish ethics violators, it is “more than a watch dog, it is an attack dog. A dog that barks
is one thing; a dog that bites is quite another. One can be ignored, the other not so
much. Indeed, in the estimation of other state courts, when an independent ethics
commission has the capacity to impose penalties, it crosses an impermissible
constitutional line.”
Since its creation, COELIG moved forward with an investigation launched by its
predecessor panel, the Joint Commission on Public Ethics, into the $5.1 million
proceeds of Cuomo’s book, “American Crisis: Leadership Lessons from the COVID-19
Pandemic.”
In a prior legal victory for Cuomo, in August 2022, acting state Supreme Court Justice
Denise A. Hartman ordered that JCOPE circumvented Cuomo’s due process rights in its
efforts to retrieve proceeds from his 2020 book.
Rich Azzopardi, a spokesman for Cuomo, said in a statement:
“As we’ve said all along, this was nothing more than an attack by those who abused
their government positions unethically and—as the judge ruled today—
unconstitutionally for political purposes. Those in Albany who created this farce of a
commission may not care about—or know—the law, but whether it was five district
attorneys rejecting the Attorney General’s sham report’s findings or the courts, every
time someone charged with upholding the law looks at the facts we prevail. Truth and
reason won, mob rule lost today.”
Gov. Kathy Hochul’s spokesman, Avi Small, said:
“Taking office in the midst of scandal and a crisis in state government, gov. Hochul
worked with the legislature to craft a new, truly independent ethics body that could
begin to restore New Yorkers’ faith in their public officials. Today’s decision undermines
the independent ethics commission created by Gov. Hochul and we will work with the
commission to support an appeal.”
The commission’s chairman, Frederick A. Davie, and executive director, Sanford N.
Berland, issued a joint statement denouncing Marcelle’s order.
“We respectfully disagree with the court’s result and are reviewing all options, including,
if appropriate, interim legislation.”
“New Yorkers have the right to an ethics commission that is truly independent and fully
empowered to administer and enforce the state’s ethics and lobbying laws objectively,
even-handedly, and without regard to the rank, position, or political affiliation of those
we regulate and without interference from any branch of government. The Commission
intends to move forward, deliberately and with zeal, to fulfill its mission to restore New
Yorkers’ faith in government, even as it pursues relief from today’s ruling through the
appellate and legislative processes.”
The COELIG officials make clear that “the state ethics and lobbying laws (Public Officers
Law §§ 73, 73-a, and 74, Civil Service Law § 107, and Legislative Law Article 1-A) remain
intact” as the matter works its way through the courts.
The commission will continue to promote compliance with the state’s ethics and
lobbying laws, Davie and Berland said.
By Brian Lee, New York Law Journal
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