In the Matter of Working Families Party, Appellant,v.Fern A. Fisher,, et al., Respondents.BriefN.Y.April 29, 2014To be Argued by: AVI SCHICK (Time Requested: 10 Minutes) APL 2013-00322 Appellate Division–Second Department Docket No. 2013-02052 Court of Appeals of the State of New York In the Matter of WORKING FAMILIES PARTY, Appellant, – against – FERN A. FISHER, et al., Respondents. REPLY BRIEF FOR APPELLANT DENTONS US LLP AVI SCHICK RICHARD M. ZUCKERMAN KIRAN PATEL Attorneys for Appellant 1221 Avenue of the Americas New York, New York 10020 Tel.: (212) 768-6700 Fax: (212) 768-6800 April 11, 2014 - i - TABLE OF CONTENTS Preliminary Statement................................................................................................1 Argument....................................................................................................................3 I. The Working Families Party’s Petition Appropriately Sought Article 78 Relief in The Nature of Prohibition............................................................3 A. It Is Undisputed That Article 78 Relief Is Available To Challenge A Judicial Order Appointing a Special District Attorney.................................................................................................3 B. The Working Families Party Does Not Request Article 78 Relief to Restrain the Special Prosecutor or District Attorney Donovan ................................................................................................4 II. District Attorney Donovan’s Assertion That A District Attorney Can Make An Unreviewable Determination To Disqualify Himself and Trigger the Appointment Of A Special Prosecutor Conflicts With County Law § 701 And Numerous Decisions Of This and Other Courts...............................................................................................................7 III. The Disqualification Standard Established By County Law § 701 And This Court’s Prior Decisions Requires a Showing of Actual Prejudice Based on a Demonstrated Conflict of Interest...............................................11 A. The Disqualification Standard.............................................................11 B. The Standard Applies When The District Attorney Seeks Disqualification And Appointment Of A Special Prosecutor.............13 1. Schumer Cannot Be Read To Allow A Dual Standard.............14 2. Zimmer and Adams Do Not Support A Different Standard For District Attorney Requests For Disqualification................15 C. There Is No Valid Reason To Disregard The Firmly Established And Frequently Applied “Actual Prejudice” Standard..........................17 1. Applying The Established Disqualification Standard To Instances Where The District Attorney Makes The Request Does Not Create An “Ethical Dilemma” For the - ii - District Attorney Because He Can Recuse Himself Individually ...............................................................................17 2. County Law § 702 Permits An Assistant District Attorney To Handle A Matter When The District Attorney Is Unable To Do So ...................................................20 D. The Compelling Reasons for Limiting the Circumstances Under Which The Elected District Attorney’s Authority is Delegated to a Special Prosecutor Are Equally Applicable When The District Attorney Makes the Request ................................24 IV. Neither District Attorney Donovan Nor Judge Fisher Argues That The Application Presented Facts That Satisfy The Disqualification Standard .........................................................................................................25 V. The Order Did Not Meet The Additional Requirements Established By County Law § 701....................................................................................26 A. The Order Was Not Executed By “A Superior Criminal Court In The County Wherein The Action Is Triable” .................................26 B. The Order Was Not Limited To A “Particular Case” .........................30 1. The Order Itself, Not The Underlying Secret Application, Must Limit The Appointment To A Particular Case ................30 2. District Attorney Donovan’s Other Arguments Regarding the “Particular Case” Limitation Highlight The Need For Its Safeguards.....................................................32 Conclusion ...............................................................................................................34 - iii - TABLE OF AUTHORITIES Page(s) CASES Bd. of Supervisors of Montgomery Cnty. v. Aulisi, 62 A.D.2d 644, 406 N.Y.S.2d 570 (3d Dept. 1978) aff’d, 46 N.Y.2d 731, 385 N.E.2d 1302 (1978) .................................................................................9, 10 Charlton v. Superior Court, 93 Cal. App. 3d 858, 156 Cal. Rptr. 107 (Cal. Ct. App. 1979) ..........................21 Fox v. Shapiro, 84 Misc. 2d 223, 375 N.Y.S.2d 945 (Sup. Ct., Orange Cty. 1975)........18, 19, 21 Garner v. New York State Dep’t of Corr. Servs., 10 N.Y.3d 358 (2008) ...........................................................................................7 Holtzman v. Goldman, 71 N.Y.2d 564 (1988) ...........................................................................................7 Matter of Rice, 31 Misc. 3d 838, 924 N.Y.S.2d 743 (Sup. Ct., Nassau Cty. 2011) ....9, 13, 24, 33 People v. Adams, 20 N.Y.3d 608 (2013) ..................................................................................passim People v. Cruz, 60 A.D.2d 872, 401 N.Y.S.2d 267 (2d Dept. 1978) ...............................18, 19, 21 People v. Herr, 86 N.Y.2d 638, 658 N.E.2d 1032 (1995)............................................................12 People v. Joseph Stevens & Co., Inc., 31 Misc. 3d 1223(A), 929 N.Y.S.2d 202 (Sup. Ct. 2011)............................19, 20 People v. Keeton, 74 N.Y.2d 903, 548 N.E.2d 1298 (1989)............................................................12 People v. Leahy, 72 N.Y.2d 510, 531 N.E.2d 290 (1988)........................................................30, 33 - iv - People v. Schrager, 74 Misc. 2d 833 (Sup. Ct. Queens Co. 1973).....................................................17 People v. Zimmer, 51 N.Y.2d 390, 414 N.E.2d 705 (1980)..................................................15, 16, 17 Pirro v. Angiolillo, 89 N.Y.2d 351 (1996) ...........................................................................................7 Schumer v. Holtzman, 60 N.Y.2d 46, 454 N.E.2d 522 (1983).........................................................passim Sedore v. Epstein, 56 A.D.3d 60 (2d Dept. 2008) ............................................................................32 Soares v. Herrick, 20 N.Y.3d 139, 981 N.E.2d 260 (2012).......................................................passim State v. Marshall, 1999-2176 (La. App. 4 Cir. 8/30/00), 774 So. 2d 244 .......................................21 Suffolk Cnty. Legislature v. Mullen, 211 A.D.2d 736, 622 N.Y.S.2d 294 (2d Dept. 1995) ...............................6, 33, 34 STATUTES C.P.L.R. 7802(a) ........................................................................................................3 County Law § 701.............................................................................................passim County Law § 702.............................................................................................passim Executive Law § 63....................................................................................................6 OTHER AUTHORITIES 22 N.Y.C.R.R.§ 200.15......................................................................................27, 29 BLACK’S LAW DICTIONARY 5 (9th ed. 2009)............................................................21 - 1 - PRELIMINARY STATEMENT The issue on this appeal remains straightforward: what is the standard that governs an application for the disqualification of an elected District Attorney and the appointment of a Special District Attorney? Staten Island District Attorney Donovan asserts that no such standard exists, and that a District Attorney has the unilateral and unreviewable authority to disqualify himself from a particular case and demand the appointment of a Special District Attorney. Judge Fisher disagrees, suggesting that a District Attorney’s application for disqualification is subject to judicial review while avoiding any discussion of what standard should apply to that review – or that she applied here. The Working Families Party maintains that this Court’s long-established requirement for disqualification – “actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence” – is the standard for review of an application for disqualification, even when made by a District Attorney. There is no dispute that District Attorney Donovan’s application for disqualification did not and could not meet that standard. District Attorney Donovan’s contention that the judiciary lacks the authority to review a District Attorney’s determination regarding his own disqualification is contrary to the express language of County Law § 701 and is inconsistent with all of the cases in which New York courts, including this Court, have reviewed - 2 - District Attorney requests for disqualification. Tellingly, District Attorney Donovan does not identify a single case in support of his assertion that courts are not authorized to review District Attorney disqualification requests. Both District Attorney Donovan and Judge Fisher also continue to ignore this Court’s precedents when they assert that Article 78 relief in the nature of prohibition is not available in this case, even though this Court has determined that “prohibition is an appropriate remedy to void the improper appointment of a [special] prosecutor when made by a court[.]” Soares v. Herrick, 20 N.Y.3d 139, 145, 981 N.E.2d 260 (2012). The Working Families Party’s Petition seeks Article 78 relief against Deputy Chief Administrative Judge Fern A. Fisher for her entry of a January 12, 2012 Order appointing a special prosecutor. There is no dispute that Article 78 relief is available against a judge, and for that reason all of the arguments based on whether Article 78 relief would be available against District Attorney Donovan or the Special District Attorney are irrelevant. Respondents have not provided any factual or legal basis to support the disqualification of District Attorney Donovan or to uphold the January 12, 2012 Order appointing a Special District Attorney. This Court should reverse the decision of the Second Department and vacate the Order disqualifying District Attorney Donovan and appointing a Special District Attorney. - 3 - ARGUMENT I. THE WORKING FAMILIES PARTY’S PETITION APPROPRIATELY SOUGHT ARTICLE 78 RELIEF IN THE NATURE OF PROHIBITION A. It Is Undisputed That Article 78 Relief Is Available To Challenge A Judicial Order Appointing a Special District Attorney The parties all agree that Article 78 relief is available against a judicial officer. Donovan confirms that “the petition must be directed to some . . . judicial tribunal or officer,” (Donovan Br. 11), while Fisher notes that among the “well- established principles governing Article 78 relief” is that such relief “may be obtained [against an] officer acting in a judicial . . . capacity[.]” (Fisher Br. 6.) As discussed in the Working Families Party’s opening brief, (WFP Br. 11 – 15), the parties’ consistent view on this point is not surprising in light of the plain language of Article 78 and the decisions of this Court. See, e.g., Soares, 20 N.Y.3d at 145 (prohibition applies to an “officer acting in a judicial . . . capacity”; affirming Appellate Division’s grant of Article 78 petition seeking prohibition against judge and vacating judge’s order appointing Special District Attorney); Schumer, 60 N.Y.2d at 51 (“[p]rohibition may be maintained . . . to prevent or control a body or officer acting in a judicial . . . capacity”); C.P.L.R. 7802(a) (Article 78 petitions may be asserted against a “body or officer,” defined in the C.P.L.R. to “include[] every court . . .whose action may be affected by a proceeding under this article”). - 4 - There is also no dispute that the January 12, 2012 Order appointing the special prosecutor (the “Order”) was entered by Deputy Chief Administrative Judge Fisher, who is unquestionably a judicial officer. Since the parties agree that Article 78 relief is available against a judicial officer and further agree that the Order was entered by a judicial officer, it must follow that Article 78 relief is available against the party who entered the Order – Judge Fisher. As this Court has recently reaffirmed, “prohibition is an appropriate remedy to void the improper appointment of a [special] prosecutor when made by a court[.]” Soares, 20 N.Y.3d at 145 (quoting Schumer, 60 N.Y.2d at 54). B. The Working Families Party Does Not Request Article 78 Relief to Restrain the Special Prosecutor or District Attorney Donovan The Appellate Division failed to analyze the Petition’s actual request for Article 78 relief, which was for a writ of prohibition against Judge Fisher, who entered the disqualification Order appointing the special prosecutor. Instead, the Court focused on a consequence of that requested relief, which is that prohibiting the issuance of the Order and thereby vacating it would void the appointment of the Special District Attorney who would, as a consequence, not be able to proceed with an investigation. Stating that the investigation itself was not a “quasi-judicial act,” the Appellate Division concluded that “Accordingly, prohibition does not lie.” (R.186.) That result was wrong. - 5 - Whenever a Court grants an Article 78 Petition voiding an order which has appointed a Special District Attorney, it is a necessary consequence that the Special District Attorney no longer has authority to act, or issue subpoenas. See, e.g., Soares v. Herrick, 20 N.Y.3d at 147. But of course, that consequence of granting a writ of prohibition does not make prohibition itself unavailable. Judge Fisher compounds the Appellate Division’s error by arguing that prohibition is inappropriate because the Petition articulated the ancillary relief that flows from voiding the Order, which is that grand jury subpoenas issued by the special prosecutor must be quashed. (Fisher Br. 8-10.) This too misses the point, which is that quashing the Special District Attorney’s subpoenas is an unavoidable consequence of the relief sought by the Working Families Party: vacating the Order appointing the special prosecutor. Once it is determined that Judge Fisher’s Order was in excess of her authority and therefore invalid, it necessarily follows that Mr. Adler is not a validly appointed special prosecutor and cannot issue grand jury subpoenas. Noting that consequence in the Petition does not change the fact that the request for prohibition pursuant to Article 78 is squarely directed against Judge Fisher, who is without a doubt a judicial officer and who was acting as a judicial officer when she improperly entered the Order and appointed the Special District Attorney. - 6 - Against the weight of this Court’s decisions in Schumer and Soares finding Article 78 relief appropriate to remedy the improper appointment of a special prosecutor, Judge Fisher attempts to rely on Suffolk Cnty. Legislature v. Mullen, 211 A.D.2d 736, 622 N.Y.S.2d 294 (2d Dept. 1995). But in Mullen the petitioner was seeking Article 78 relief directly against the special prosecutor, on the grounds that he had previously interviewed for the position of counsel to the petitioner in connection with the petitioner’s own investigation of the transactions at issue in the underlying case. Id. at 736-37. Mullen therefore has nothing to tell us about the Petition at issue here, which was directed solely at a judicial officer.1 District Attorney Donovan argues that his “decision to recuse himself and seek appointment of a special district attorney is . . . [an] executive action that cannot be challenged by writ of prohibition.” (Donovan Br. 12.) That is beside the point, because the Petition does not challenge either District Attorney Donovan’s decision to seek disqualification or his request for a special prosecutor. What the Petition does question is that the judicial Order granting disqualification and appointing a Special District Attorney be vacated.2 1 Mullen was also a case in which there was no dispute that an actual conflict of interest mandated disqualification. And the Mullen court did in any event still separately analyze the petitioner’s additional request for Article 78 relief against the appointing judge. Id. at 737. By contrast, in this case the Working Families Party does not request Article 78 relief against the special prosecutor and the Appellate Division failed to analyze the request for Article 78 relief against the appointing Judge. 2 The Petition also did not seek Article 78 relief to challenge an order appointing a special prosecutor pursuant to Executive Law § 63. No such order was entered here. Therefore, - 7 - This Court should reverse the Appellate Division’s erroneous holding that Article 78 relief was unavailable, and should grant the relief requested by the Petition. Garner v. New York State Dep’t of Corr. Servs., 10 N.Y.3d 358, 361 (2008) (reversing the Appellate Division’s finding that the Department of Corrections was not acting in a judicial capacity and granting Article 78 relief); Pirro v. Angiolillo, 89 N.Y.2d 351, 359-60 (1996); Holtzman v. Goldman, 71 N.Y.2d 564, 569-70 (1988). II. DISTRICT ATTORNEY DONOVAN’S ASSERTION THAT A DISTRICT ATTORNEY CAN MAKE AN UNREVIEWABLE DETERMINATION TO DISQUALIFY HIMSELF AND TRIGGER THE APPOINTMENT OF A SPECIAL PROSECUTOR CONFLICTS WITH COUNTY LAW § 701 AND NUMEROUS DECISIONS OF THIS AND OTHER COURTS By improperly conflating a District Attorney’s determination to recuse himself with an order of disqualification necessitating the appointment of a special prosecutor, District Attorney Donovan argues that District Attorneys possess the sole and unreviewable authority over disqualifications. But recusal and disqualification are distinct issues: A District Attorney’s decision to recuse himself from a matter does not automatically mean that he is disqualified as a matter of law or that the law requires or permits the appointment of a special prosecutor. That requires a judicial determination pursuant to County Law § 701. Respondent Donovan’s lengthy discussion of the unremarkable fact that a hypothetical order entered by the Governor pursuant to the Executive Law would be executive in nature is utterly irrelevant to this litigation. (Donovan Br. 18-27.) - 8 - District Attorney Donovan’s contention on appeal is inconsistent with how both he and Judge Fisher described what occurred to the Appellate Division. There, both District Attorney Donovan and Judge Fisher submitted affidavits that describe a process in which a District Attorney applies for disqualification and the court determines whether disqualification is appropriate. District Attorney Donovan’s affidavit conceded that he “applied for an order relieving me acting in that case and appointment of a special district attorney in my stead.” (R.104; emphasis added.) That was consistent with Judge Fisher’s affidavit, which acknowledged that the reviewing court’s role was to “consider” District Attorney Donovan’s application and to “determine[] that good cause existed for the appointment of a special prosecutor[.]” (R.86; emphasis added.) While the Donovan and Fisher affidavits both flatly contradict District Attorney Donovan’s current argument that a District Attorney’s determination about disqualification is not subject to court review, the affidavits are in that regard entirely consistent with the plain language of County Law § 701 and the numerous cases applying it. Those cases all demonstrate that courts applying County Law § 701 must conduct an independent assessment of whether the rationale for disqualification offered by the District Attorney is sufficient to meet the standards that are a statutory prerequisite for the appointment of a special prosecutor. - 9 - For example, in Matter of Rice, 31 Misc. 3d 838, 924 N.Y.S.2d 743 (Sup. Ct., Nassau Cty. 2011), Nassau County District Attorney Kathleen Rice concluded that her office should be disqualified from an investigation into the Nassau County Police Department’s crime laboratory, and applied for an order from the court appointing a special prosecutor pursuant to County Law § 701. The court conducted its own review of the facts and determined, contrary to District Attorney Rice’s assertion, that “the District Attorney is not here disqualified, as required by the statute, because she is called upon to investigate and perhaps prosecute police officers[.]” Id. at 841. Similarly, Bd. of Supervisors of Montgomery Cnty. v. Aulisi, 62 A.D.2d 644, 645, 406 N.Y.S.2d 570 (3d Dept. 1978) aff’d, 46 N.Y.2d 731, 385 N.E.2d 1302 (1978) also illustrates that a court must make its own independent determination of whether a District Attorney is disqualified. In Aulisi, Montgomery County District Attorney Charles E. Hardies, Jr. requested an order pursuant to County Law § 701 appointing a special prosecutor. Contrary to the process being urged here by District Attorney Donovan, the Aulisi trial court did not blindly accept District Attorney Hardies’ conclusion that his office was disqualified. Instead, it held a “hearing at which [District Attorney] Hardies explained his position.” Id. at 646. Only after satisfying itself that the statutory basis for disqualification was satisfied did the court appoint a special prosecutor. Id. - 10 - Aulisi also demonstrates that a court’s order appointing a special prosecutor pursuant to County Law § 701 is reviewable by way of an Article 78 petition. After the appointment order was entered, the Montgomery County Board of Supervisors filed an Article 78 petition challenging the order. The Third Department found that the trial court’s conclusion on the issue of disqualification was wrong and therefore granted an Article 78 petition “to restrain implementation of the order made by Mr. Justice Aulisi.” Id. The Third Department’s decision was affirmed by this Court. 46 N.Y.2d at 733.3 District Attorney Donovan badly misreads People v. Adams, 20 N.Y.3d 608 (2013) in a strained attempt to identify any judicial support for his assertion that a District Attorney can make an unreviewable decision to disqualify himself. (Donovan Br. 16-17.) His argument is as follows: (1) in Adams this Court held that a District Attorney’s office was disqualified from handling a matter; (2) the ruling from this Court in Adams reversed a County Court order; (3) County Law § 701 grants only superior criminal courts the power to appoint a special prosecutor; (4) since the County Court that was reversed in Adams was not a 3 In addition to the cases where a District Attorney considers himself disqualified and a court rejects this conclusion, the fact that a court must conduct its own independent assessment as to the question of disqualification is also demonstrated where a District Attorney believes that he is not disqualified and the court reaches the opposite conclusion. See, e.g., Adams, 20 N.Y.3d at 615 (finding District Attorney disqualified and appointing special prosecutor over District Attorney’s objection). What the cases uniformly confirm is that County Law § 701 requires a judicial determination of whether the District Attorney is disqualified. - 11 - superior criminal court, it must be that there is a bifurcation between a finding of disqualification and the appointment of a special prosecutor. At most Adams could support an argument that a lower criminal court could disqualify a District Attorney but only a superior criminal court could appoint a special prosecutor. Adams cannot support District Attorney Donovan’s contention that the courts do not have the right and obligation to review a District Attorney’s request for disqualification. District Attorney Donovan’s current position that a District Attorney has the exclusive and unreviewable right to disqualify himself and trigger the appointment of a special prosecutor was adopted of necessity: he cannot satisfy this Court’s “actual prejudice” standard for disqualification, or any objective standard, and so he has retreated into his current posture. That position is inconsistent with the statutory language of County Law § 701 and the cases applying it, and District Attorney Donovan’s own affidavit to the Second Department. It has no foundation and no merit, and this Court should reject it. III. THE DISQUALIFICATION STANDARD ESTABLISHED BY COUNTY LAW § 701 AND THIS COURT’S PRIOR DECISIONS REQUIRES A SHOWING OF ACTUAL PREJUDICE BASED ON A DEMONSTRATED CONFLICT OF INTEREST A. The Disqualification Standard County Law § 701 provides that as a prerequisite to the appointment of a Special District Attorney “the district attorney . . . and such assistants as he or she - 12 - may have . . . are disqualified from acting in a particular case[.]” Thus, unless the facts and circumstances offered by District Attorney Donovan in support of his application for disqualification meet the standard established by County Law § 701 and the cases interpreting it, the Order appointing a Special District Attorney exceeded the bounds of Judge Fisher’s statutory authority. This Court has established the following disqualification standard: “courts, as a general rule, should remove a public prosecutor only to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence[.]” Schumer v. Holtzman, 60 N.Y.2d 46, 55, 454 N.E.2d 522 (1983); People v. Keeton, 74 N.Y.2d 903, 904, 548 N.E.2d 1298 (1989) (“only to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence”) (quoting Schumer); People v. Herr, 86 N.Y.2d 638, 641, 658 N.E.2d 1032 (1995) (“only to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence”) (quoting Schumer; emphasis removed); Soares 20 N.Y.3d at 146 (“only to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence.”) (quoting Schumer; emphasis in Soares). - 13 - When a judge appoints a special prosecutor in a case where the disqualification standard was not met, the judge exceeds his authority. This Court recently applied this principle in its decision in Soares: Given the absence of a finding by respondent of “actual prejudice” . . . and, once again, acknowledging that a court’s “exceptional superseder authority should not be expansively interpreted” (Leahy, 72 N.Y.2d at 513–514, 534 N.Y.S.2d 658, 531 N.E.2d 290), [the judge’s] decision to disqualify petitioner and to appoint a special district attorney was in excess of his authority under County Law § 701. Soares, 20 N.Y.3d at 146. B. The Standard Applies When The District Attorney Seeks Disqualification And Appointment Of A Special Prosecutor As discussed in the Working Families Party’s opening brief, (WFP Br. 16- 24), the “actual prejudice” standard is not limited to cases where a defendant seeks disqualification of the District Attorney. Not only does it apply to cases in which the District Attorney is the party seeking disqualification, the “actual prejudice” standard was established by this Court in a case where it was the District Attorney who sought disqualification and appointment of a special prosecutor. Schumer, 60 N.Y.2d at 55. The “actual prejudice” standard continues to be applied where the District Attorney is the party seeking disqualification. Rice, 31 Misc. 3d at 842. Like Judge Fisher, amicus suggests that a different, lower standard should apply to the appointment of a special prosecutor if the party seeking the disqualification is the District Attorney. And like Judge Fisher, amicus does not - 14 - articulate what that lower standard should be or provide any basis to support the conclusion that District Attorney Donovan can or did meet that – or any – standard. 1. Schumer Cannot Be Read To Allow A Dual Standard District Attorney Donovan argues that even though Schumer specifically set forth the “actual prejudice” standard, the Court’s discussion was “consistent with” the existence of a lower standard (though he does not articulate what that lower standard would be). (Donovan Br. 45.) To support this position, he emphasizes that the District Attorney in Schumer, Elizabeth Holtzman, had failed to submit an application to a court pursuant to County Law § 701 and had attempted to directly appoint a special prosecutor. But as the discussion in Schumer makes clear, if District Attorney Holtzman had submitted a County Law § 701 application, the reviewing court would have been required to apply the “actual prejudice” standard. After setting forth the “actual prejudice” standard (and also mentioning similar demanding standards applied in federal courts), Schumer states that because no County Law § 701 application had yet been submitted, “[t]here is not yet any basis for deciding whether the present situation meets these criteria and calls for judicial action.” Schumer, 46 N.Y.2d at 55 (emphasis added). Use of the words “not yet” indicates that if in the future District Attorney Holtzman submitted a County Law § 701 application, a court would have to apply “these criteria” (the “actual prejudice” standard) to assess that application and determine whether it - 15 - should be granted. There is no question that the Court anticipated that the party submitting the application would be the District Attorney, because the Court then goes on to discuss the fact that the District Attorney would have to decide whether to “proceed[] with the matter herself or mov[e] for the judicial appointment of a special prosecutor.” Id. at 56. In short, Schumer does not offer any support for the notion that a District Attorney’s request for disqualification and appointment of a special prosecutor is unreviewable or not subject to the “actual prejudice” standard. 2. Zimmer and Adams Do Not Support A Different Standard For District Attorney Requests For Disqualification District Attorney Donovan also invokes People v. Zimmer, 51 N.Y.2d 390, 414 N.E.2d 705 (1980) in support of his assertion that a lower standard should apply when the District Attorney is the one requesting his own disqualification. The first problem with this argument is that in Zimmer the District Attorney did not seek disqualification and appointment of a special prosecutor. In Zimmer the defendant moved to dismiss an indictment on the grounds that the District Attorney had a conflict of interest. Id. at 392. The Court simply had no reason to address whether a special, lesser standard should apply when the District Attorney requests disqualification and the appointment of a special prosecutor, and Zimmer clearly does not support the novel notion of dual standards for disqualification. A separate issue is whether the discussion in Zimmer sets forth a somewhat less strict – but equally nondiscriminatory with regard to the identity of the - 16 - requestor – standard than Schumer. District Attorney Donovan argues that it does, seizing on the language “a reasonable potential for prejudice will suffice[.]” Id. at 395. But three years after Zimmer, this Court cited Zimmer in support of the “actual prejudice” standard: The courts, as a general rule, should remove a public prosecutor only to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence (e.g., People v Zimmer, 51 NY2d 390, supra.; People v Shinkle, 51 NY2d 417, 421) and the appearance of impropriety, standing alone, might not be grounds for disqualification. Schumer, 60 N.Y.2d at 55. Thus, this Court has interpreted its own discussion from Zimmer as consistent with the “actual prejudice” standard. Any other reading of Zimmer is undermined by, and inconsistent with, this Court’s subsequent decisions, including Schumer and Soares. In Adams, the District Attorney’s office refused to offer a defendant the type of plea bargain that was consistently offered in similar cases and it was apparent that the disparate treatment stemmed from the fact that the complaining victim in Adams was a judge before whom the District Attorney’s office regularly appeared. This Court explained that was a “rare case[] in which a significant appearance of impropriety was created, requiring disqualification[.]” Adams, 20 N.Y.3d at 613. But just like Zimmer, the Adams decision says absolutely nothing about using a different standard for assessing disqualification in cases where the District Attorney is the one making the request. - 17 - Neither Zimmer nor Adams arose from a request for disqualification that was made by the District Attorney, so in neither case was the Court in a position to discuss whether a standard other than “actual prejudice” should govern such a request. Moreover, in Adams, the Court disqualified the District Attorney’s office over its objection. This further underscores that it is the courts, and not the District Attorneys that have the final word on disqualification.4 C. There Is No Valid Reason To Disregard The Firmly Established And Frequently Applied “Actual Prejudice” Standard 1. Applying The Established Disqualification Standard To Instances Where The District Attorney Makes The Request Does Not Create An “Ethical Dilemma” For the District Attorney Because He Can Recuse Himself Individually Without articulating an alternative standard, District Attorney Donovan argues that applying the established disqualification standard in cases where the District Attorney requests disqualification would force the District Attorney to 4 Against the weight of the numerous decisions from this Court applying the “actual prejudice” standard, Respondents place great emphasis on People v. Schrager, 74 Misc. 2d 833 (Sup. Ct. Queens Co. 1973). (Donovan Br. 13; Fisher Br. 12; DAASNY Br. 21.) To the extent that Schrager is in conflict with the prevailing standard established and repeated by this Court, it is of course not controlling since it is a trial court opinion that precedes Schumer by a decade. Moreover, Respondents take out of context the statement in Schrager that it is enough for a District Attorney to provide “a good faith application containing the reasonable grounds for his belief that he is so disqualified.” Id. at 834. In Schrager the court conducted its own review of the facts and went on to explain that “[i]n view of all the factors brought to light, the Court finds that the District Attorney is disqualified from proceeding with the prosecution of this defendant.” Id. (emphasis added.) And the facts regarding the District Attorney’s conflict were compelling: the defendant in the case was a member of the District Attorney’s own staff. Since the defendant was an Assistant District Attorney in Queens County, the court found that it made sense to disqualify the Queens County District Attorney’s office from prosecuting him in light of the “professional and personal relationships which this defendant shared with the members of the District Attorney’s staff.” Id. - 18 - violate the Rules of Professional Conduct. (Donovan Br. 43.) Amicus advances the same point. It is particularly ironic that District Attorney Donovan focuses his attention on constructing hypothetical scenarios in which a conflict may arise in a brief that is devoid of even a single paragraph, sentence or word explaining the basis for disqualification in this case. District Attorney Donovan appears far more comfortable speculating about possible conflicts of interest in other cases than he does discussing why he is seeking to be disqualified in this case. Perhaps that is because here there is no legitimate basis for it. In any event, District Attorney Donovan’s hypotheticals are no more sufficient to support disqualification of a District Attorney and the appointment of a special prosecutor than this case. If a District Attorney encounters a conflict that does not rise to the level of justifying judicial disqualification and appointment of a special prosecutor pursuant to County Law § 701, he may recuse himself individually. That is what Orange County District Attorney Norman Shapiro did when he encountered exactly the scenario which District Attorney Donovan argues would present an insurmountable ethical dilemma. People v. Cruz, 60 A.D.2d 872, 401 N.Y.S.2d 267 (2d Dept. 1978); Fox v. Shapiro, 84 Misc. 2d 223, 375 N.Y.S.2d 945 (Sup. Ct., Orange Cty. 1975). Shapiro had previously served as Chief Attorney for the Orange County Legal Aid Society and in that prior role had represented some - 19 - defendants who were to be prosecuted by the Orange County District Attorney’s office after he became head of the office. To address the situation, Shapiro individually recused himself from any involvement with pending cases in which defendants were represented by the Legal Aid society. The courts in both Cruz and in Shapiro recognized that District Attorney Shapiro’s individual recusal was an appropriate way to handle his conflict of interest concerns. Cruz, 60 A.D.2d at 872; Shapiro, 84 Misc. 2d at 228. The Working Families Party discussed these cases in its opening brief (WFP Br. 25-27), and they directly address the scenario that Respondents suggest would create an ethical dilemma. Yet not one of the briefs filed in opposition mentions them. There can be no doubt that in rejecting the challenges to recusal, the courts in Cruz and Shapiro understood that District Attorney Shapiro had complied with the Rules of Professional Conduct, while he also was not forced to let a crime go unprosecuted (since other members of the office were able to pursue the cases). While ignoring Cruz and Shapiro, Donovan relies heavily on People v. Joseph Stevens & Co., Inc., 31 Misc. 3d 1223(A), 929 N.Y.S.2d 202 (Sup. Ct. 2011), asserting that Stevens stands for the proposition that “although the District Attorney himself could be walled off from any involvement in the prosecution itself, the office’s continued involvement in the matter was inconsistent with the fundamental responsibilities of the office[.]” (Donovan Br. 52-53.) But the facts - 20 - in Stevens are to the contrary. First, there is no question that Stevens involved an actual conflict of interest, since the current Manhattan District Attorney had previously acted as counsel for one of the defendants. Second, there was no opposition to the disqualification of the District Attorney. Third, even after District Attorney Vance was disqualified, and the Attorney General was appointed in his place, four Assistant District Attorneys from the Manhattan District Attorney’s office were assigned to work on the prosecution. Id.at n.2. 2. County Law § 702 Permits An Assistant District Attorney To Handle A Matter When The District Attorney Is Unable To Do So County Law § 702(4) requires that the District Attorney “designate in writing and file in the office of the county clerk . . . the order in which such assistants shall exercise the powers and duties of the office in the event of a vacancy or the absence or inability of such district attorney to perform the duties of the office.” This statute thus calls for Assistant District Attorneys to fulfill the role of the District Attorney in three circumstances: (1) vacancy; (2) absence; and (3) inability. The office may be “vacant” if, for example, the District Attorney were to resign or pass away. The District Attorney would be “absent” if, for example, he is travelling and unavailable. The third category, “inability,” encompasses a range of possible reasons why the District Attorney may be temporarily “unable” to fulfill his role. - 21 - If the District Attorney is ill, for example, he may be unable to work. In addition, a District Attorney may suffer from a conflict of interest in connection with a certain matter which renders him unable to handle that matter.5 If that occurs, then the District Attorney may properly recuse himself and the previously- designated Assistant District Attorney may handle the matter. District Attorney Donovan concedes that that County Law § 702 “allows assistant district attorneys to exercise the district attorney’s power.” (Donovan Br. 50). However, he argues that the Assistants cannot “take on his fundamental responsibilities.” Id. District Attorney Donovan does not explain the distinction, which has no basis in the language of Section 702. As with his treatment of the Cruz and Shapiro decisions, District Attorney Donovan simply ignores that which he finds inconvenient. District Attorney Donovan also attempts to rely on Schumer for support of the notion that there is a limitation on the duties a District Attorney may delegate to an Assistant District Attorney. (Donovan Br. 48-49; citing Schumer, 60 N.Y.2d 5 Not much elaboration is required to confirm that being precluded from acting due to conflict renders an attorney “unable.” Nonetheless, confirmation can be obtained from Black’s Law Dictionary, which defines “ability” as “[t]he capacity to perform an act or service; esp., the power to carry out a legal act.” BLACK’S LAW DICTIONARY 5 (9th ed. 2009). If a District Attorney cannot proceed because of a conflict, then he does not have the capacity to act in the case and thus falls within County Law § 702(4)’s “inability” prong. Cases in other contexts have noted that having a conflict of interest can be one reason that an attorney is “unable” to proceed with a representation. Charlton v. Superior Court, 93 Cal. App. 3d 858, 863, 156 Cal. Rptr. 107, 109-10 (Cal. Ct. App. 1979) (discussing statute which applies in “situations in which there is no public defender, or the public defender is unable because of a conflict of interest or other reasons to act”) (emphasis added); State v. Marshall, 1999-2176 (La. App. 4 Cir. 8/30/00), 774 So. 2d 244, 250 (finding that there was no “conflict of interest that would render [defendant’s attorney] unable to put on an adequate defense on behalf of the defendant.”) (emphasis added; internal quotations omitted). - 22 - at 53.) In doing so, he confuses two different subsections of County Law § 702. Subsection 702(2) establishes the scope of responsibilities that an Assistant District Attorney may handle under normal circumstances: “[t]he assistant shall perform such duties pertaining to the office as may be directed by the district attorney.” This is the limited delegation of duties that was referenced in Schumer. By contrast, in the unusual circumstance of a vacancy, absence or inability, subsection 702(4) permits an Assistant District Attorney to “exercise the powers and duties of the office.” The scope of responsibilities taken on by an Assistant District Attorney when there is no District Attorney (a vacancy) or when the District Attorney cannot proceed due to a conflict of interest (inability) is thus much broader. Use of the word “powers” indicates that the assistant has more than just the “duties” he normally has under subsection 702(2). In addition, unlike subsection 702(2)’s limitation to those specific “such duties as may be directed by the district attorney,” the broader language in subsection 702(4) – “the powers and duties of the office” – is stated without any limitation and thus means all of the powers and duties of the office, i.e. the powers and duties that are normally reserved to the District Attorney.6 6 Use of the word “exercise” in 702(4), as opposed to “perform” in 702(2), also indicates that during a vacancy or inability the assistant will have discretion in exercising powers instead of merely performing under the direction of the District Attorney. (Though under such circumstances the assistant is also expected to perform the office’s duties in addition to exercising its powers. County Law § 702(3), (5).) - 23 - As a practical matter, that section 702(4) envisions an Assistant District Attorney temporarily assuming the full extent of the District Attorney’s powers is apparent from the fact that it applies when there is a vacancy. If there is no District Attorney (because the District Attorney resigned or died), someone has to temporarily assume the full range of responsibilities that the elected District Attorney normally fulfills. District Attorney Donovan also asserts that if County Law § 702(4) permits the full responsibilities of the office to be exercised by an Assistant District Attorney, County Law § 701 would be surplusage. (Donovan Br. 51.) This is wrong, primarily because County Law sections 701 and 702(4) apply in different circumstances. One important distinction is that County Law § 701 only applies if the District Attorney “and such assistants as he or she may have” are disqualified. County Law § 701 (emphasis added). By contrast, County Law § 702(4) relates only to vacancy, absence, or inability on the part of the individual District Attorney. Another difference between the two statutes is that County Law § 701 specifically addresses the situation of disqualification, while County Law § 702(4) deals with more general categories including “inability.” Overall, the scope of circumstances covered by County Law § 702(4) is broader than those covered by § 701. - 24 - D. The Compelling Reasons for Limiting the Circumstances Under Which The Elected District Attorney’s Authority is Delegated to a Special Prosecutor Are Equally Applicable When The District Attorney Makes the Request As discussed in in the Working Families Party’s opening brief, (WFP Br. 30– 39), the narrow scope of County Law § 701 and the high standard for disqualification reflect an acknowledgement by the judiciary and the legislature that the powers of a District Attorney should not be transferred to a private special prosecutor except in very limited circumstances. The reasons for carefully limiting the transfer of prosecutorial powers apply with equal force when the party requesting a special prosecutor is the District Attorney. These reasons include the special prosecutor’s lack of accountability, Rice, 31 Misc. 3d at 845 (“a public prosecutor is a person most directly accountable to the people for his or her fair investigation and prosecution”), the special prosecutor’s competing duties to his other paying clients, his focus on a specific preselected target, reduced public confidence in the criminal justice system, and the unnecessary expenditure of government resources on a private practitioner. District Attorney Donovan acknowledges the gravity of these considerations (Donovan Br. 53; “‘Compelling’ they may be . . .”), but contends that concerns about such issues should be addressed to the legislature. But of course, the legislature and this Court have already addressed the issue of when a special - 25 - prosecutor may be appointed, and have appropriately decided to confine such appointments to a narrow range of circumstances, regardless of the identity of the party requesting the appointment. The discussion in in the Working Families Party’s opening brief of the reasons for the high disqualification standard is not an attempt to justify a new rule but to explain why the existing rule makes sense. IV. NEITHER DISTRICT ATTORNEY DONOVAN NOR JUDGE FISHER ARGUES THAT THE APPLICATION PRESENTED FACTS THAT SATISFY THE DISQUALIFICATION STANDARD Notably absent from either Judge Fisher’s or District Attorney Donovan’s brief is any explanation of how the facts set forth in District Attorney Donovan’s application satisfied any disqualification standard. District Attorney Donovan does not even attempt to argue that any standard was satisfied, retreating instead into the position that a District Attorney’s determination about his own disqualification is unreviewable. Judge Fisher’s brief is similarly devoid of any discussion of the standard she applied or any explanation of how the facts set forth in District Attorney Donovan’s application for disqualification satisfied that standard. While they do not come out and say it directly, it is clear that the Petition must be granted unless this Court finds that a District Attorney has the unreviewable right to make a determination about his own disqualification. As noted above, that would be contrary to County Law § 701 and the cases applying it, as well as to the affidavits that District Attorney Donovan and Judge - 26 - Fisher filed with the Appellate Division. Applications pursuant to County Law § 701 are subject to judicial review, and the County Law and this Court have set forth the standard the application must meet before a special prosecutor can be appointed. District Attorney Donovan filed an application pursuant to County Law § 701, but because he cannot and did not meet its statutory prerequisites for disqualification the Order appointing a Special District Attorney exceeded Judge Fisher’s authority under County Law § 701 and should be voided. V. THE ORDER DID NOT MEET THE ADDITIONAL REQUIREMENTS ESTABLISHED BY COUNTY LAW § 701 A. The Order Was Not Executed By “A Superior Criminal Court In The County Wherein The Action Is Triable” In an attempt to show compliance with the specific requirement of County Law § 701 which limits authority to appoint a Special District Attorney to “a superior criminal court in the county wherein the action is triable,” Judge Fisher’s brief asserts not only that Judge Fisher, who executed the appointment Order, “has ample power to assign herself temporarily” as a Supreme Court Justice in Richmond County, but also that “In this case, Judge Fisher exercised that authority [and] assigned herself to a criminal term in Richmond County Supreme Court.” (Fisher Br. 17.) Neither of those statements is correct. First, Judge Fisher did not “ha[ve] ample power to assign herself” to consider an application under County Law § 701. To the contrary, while the - 27 - Deputy Chief Administrative Judge, with delegated authority of the Chief Administrative Judge, has broad authority to make judicial assignments, the Uniform Rules of the Trial Courts limit that authority when the issue is: What Justice shall be assigned to consider an application under County Law § 701? When a request pursuant to County Law § 701 is presented to the Chief Administrative Judge, she in consultation and agreement with the Presiding Justice of the appropriate Appellate Division, then shall designate a superior court judge to consider the application as provided by law. 22 N.Y.C.R.R.§ 200.15 (emphasis added). Judge Fisher lacked authority to designate herself to consider the application, absent consultation and agreement with the Presiding Justice of the Second Department. Second, there is no evidence to support the assertion in Judge Fisher’s brief that she did in fact designate herself as a Supreme Court Justice in Richmond County to consider the application. To the contrary, the sole evidence cited by Judge Fisher’s brief on that issue – Judge Fisher’s affidavit – states neither that she consulted or reached agreement with the Presiding Justice nor that she designated herself. Judge Fisher’s affidavit uses very precise language to avoid these issues: 6. In or about February 2010, I received a confidential application from the Richmond County District Attorney’s Office . . . for appointment of a special District Attorney under County Law § 701. 7. Exercising my authority to assign and reassign judges - 28 - within the City of New York, I thereafter acted as a designee to a criminal term of the Supreme Court, Richmond County in order to consider the application’s merits. * * * 12. On January 12, 2012, having determined that Roger Bennet Adler, Esq., was a suitable and available appointee as special prosecutor in this matter, and again acting as a designee to a criminal part in Supreme Court, Richmond County, I issued an order of appointment of Mr. Adler as special prosecutor pursuant to County Law § 7-1 (Exh. A). (R.86-87.) Judge Fisher’s affidavit does not state, “In consultation and agreement with the Presiding Justice of the Second Department, I designated myself to sit as a Supreme Court Justice in Richmond County.” Judge Fisher’s affidavit does not state, “I designated myself to sit as a Supreme Court Justice in Richmond County.” Instead, she states that she “acted as a designee” – but, of course, she could not “act as a designee” unless she had been so designated, and there is no evidence at all that she was so designated, let alone designated after consultation and agreement with the Presiding Justice of the Second Department.7 Judge Fisher’s brief also asserts that the Order itself “plainly reflect[s]” the assignment of Judge Fisher to sit as a Supreme Court Justice in Richmond County. 7 Instead of addressing her apparent failure to consult and reach agreement with the Presiding Justice, Judge Fisher’s brief argues that this Court should not consider that issue because it was not raised below. That is incorrect. The Petition, while not making specific reference to 22 N.Y.C.R.R.§ 200.15, squarely presented the issue that the Order was not entered by “a superior criminal court in the county where the action is triable,” and thus put in issue Judge Fisher’s authority to sign the Order. (R.12.) In response, Judge Fisher submitted a detailed affidavit (R. 85-88) providing a step-by-step review of the receipt of the application, the consideration of the application, and the entry of the Order, without making any reference to consultation with the Presiding Justice. - 29 - But that is not so: Judge Fisher signed the Order as “Deputy Chief Administrative Judge, New York City Courts,” not as a Supreme Court Justice designated to sit in Richmond County (R.2). And while the Order states that it was made “At a Special Term, Part I, of the Supreme Court … held in and for the County of Richmond” (R.1), there is real doubt about whether that is true: Judge Fisher does not recite that she travelled to Staten Island to enter the Order, and her affidavit notes that “The order was delivered to the Richmond County District Attorney for filing” (R.87), which would have been unnecessary had the Order, in fact, been made in Richmond County. And, in any event, to be valid, an Order designating Judge Fisher as a Supreme Court Justice in Richmond County would have had to be made when consideration of District Attorney Donovan’s application began in 2010, before Judge Fisher “preliminarily determined” to appoint a Special District Attorney, not merely after the fact when the Order disqualifying District Attorney Donovan and appointing a Special District Attorney was made. These are not mere formalities. The restrictions in County Law § 701 and the Uniform Rules, which dictate not only what Court may disqualify a District Attorney and appoint a Special District Attorney, but also dictate how the particular Justice will be designated to consider such an application, reflect the extraordinary nature of such disqualification and appointment. When an Order is - 30 - entered in the wrong Court, by a Justice who was either not designated at all or not designated in accordance with the Uniform Rules, the Order cannot stand. B. The Order Was Not Limited To A “Particular Case” As this Court has emphasized, “[t]he plain wording of County Law § 701 requires that a judicial appointment of a Special District Attorney be limited to a ‘particular case’.” People v. Leahy, 72 N.Y.2d 510, 516, 531 N.E.2d 290 (1988). Here, the Special District Attorney’s mandate is not so limited: it expansively applies to “a 2009 City Council election on Staten Island[,]” potentially including the activities of ten or more candidates and three or more political parties who participated in five elections that involved dozens of polling locations and hundreds of campaign workers, volunteers, and vendors. 1. The Order Itself, Not The Underlying Secret Application, Must Limit The Appointment To A Particular Case District Attorney Donovan argues that the “particular case” requirement may be satisfied by reading the Order in conjunction with the underlying secret application. (Donovan Br. 35.) Judge Fisher similarly suggests that the Order should be read in conjunction with the underlying application. (Fisher Br. 18.) The irony of this argument is that District Attorney Donovan and Judge Fisher well know that we cannot read the underlying application – in conjunction with the Order, or any other way – because they have gone to great lengths to keep that application secret. - 31 - Donovan attempts to justify this secrecy by invoking the rules governing grand jury material. But it is impossible for the application to have contained grand jury material since it was submitted several years before any grand jury could possibly have been convened. In any event, County Law § 701 does not require a breach of grand jury secrecy, it simply mandates that within the four corners of an Order appointing a special prosecutor the Court explicitly set forth the particular case to which the special prosecutor’s authority is limited. Not only are the concerns that underlie the rule of grand jury secrecy irrelevant in the context of a special prosecutor appointment order, there are other concerns that militate in the opposite direction, requiring that more information about the scope of a special prosecutor appointment be made public. When a court appoints a special prosecutor, it designates a private practitioner to take over a public function, thereby risking “abuse or casual and unauthorized administrative practices and dispositions that are not consonant with our traditions of justice.” Sedore v. Epstein, 56 A.D.3d 60, 68 (2d Dept. 2008) (citing ABA Standards for Criminal Justice, Prosecution Function and Defense Function, commentary, Standard 3-2.1 (3d ed. 1993)). Accordingly, the public interest requires transparency whenever a private practitioner assumes all of a District Attorney’s powers and responsibilities. See also WFP Br. 30-39. - 32 - Finally, the Order does not incorporate by reference any of the content of the underlying application. Thus, even if Judge Fisher could have relied upon a different and non-public document to define the scope of the appointment, the Order that she issued and entered did not do so. 2. District Attorney Donovan’s Other Arguments Regarding the “Particular Case” Limitation Highlight The Need For Its Safeguards District Attorney Donovan also argues that a broad and non-specific special prosecutor appointment order can satisfy County Law § 701’s “particular case” requirement because “the ‘particular case’ requirement is not meant to confine the scope of a special prosecutor’s investigation but merely serves to ‘draw the line’ between the special prosecutor’s responsibilities and the District Attorney’s responsibilities.” (Donovan Br. 35.) This rationale conflicts with the very purpose of County Law § 701, which is “designed narrowly by its terms and by its purpose to fill emergency gaps in an elected prosecutorial official’s responsibilities.” Leahy, 72 N.Y.2d at 513 (precluding prosecution of one additional defendant whose possible crime arose from the same set of facts). The “particular case” requirement does not merely require a bright line such as “murder investigations.” Rather, it also requires that the line circumscribe a narrow scope of responsibility. - 33 - Judge Fisher asserts that the “particular case” limitation is “irrelevant in the investigatory phase” before any indictment. (Fisher Br. 19.) That argument is at odds with the language of County Law § 701, which does not permit a broader appointment order during the investigatory phase. Rice, 31 Misc. 3d at 843 (holding that District Attorney Rice’s request for the appointment of a special prosecutor to conduct investigation was too broad). It would also lead to a substantial waste of resources, as long investigations would be voided when they reach the point of indictment. Judge Fisher also contends that the Order is “substantially more particular than other orders which have been sustained in the face of legal challenge[,]” (Fisher Br. 18), relying entirely on Mullen. That reliance is misplaced. The order at issue in Mullen was much narrower – it only permitted the special prosecutor to investigate allegations regarding a single, specific contract relating to a vehicle leasing agreement executed by Suffolk County. Id. at 736. Moreover, the discussion in Mullen focused on the petitioner’s argument that County Law § 701 limited the appointment of a Special District Attorney to “an appropriate term of court.” Id. at 737. That is not at issue here because the Working Families Party does not raise arguments about the term of court for which the special prosecutor was appointed. Rather, here the Order fails the particular case requirement because the subject matter of the proposed investigation is vague and overbroad. CONCLUSION For the reasons stated herein, the Working Families Party respectfully . requests that the Court reverse the decision of the Appellate Division, grant the Working Families Party's Petition and enter an Order pursuant to Article 78 in the nature of prohibition vacating Deputy Chief Administrative Judge Fisher's Order disqualifying District Attorney Donovan and appointing a Special District Attorney. Dated: New York, New York Aprilll, 2014 Respectfully submitted DENTONS US LLP By: Dr u r Avi Schick Richard M. Zuckerman KiranPatel 1221 Avenue of the Americas New York, New York 10020 Telephone: (212) 768-6700 Fax: (212) 768-6800 avi.schick@dentons.com Attorneys for Petitioner-Appellant - 34- ·~