In the Matter of Maureen S. Hoerger, et al., Appellants,v.Thomas J. Spota III, Respondent, Suffolk County Board of Elections, Respondent.BriefN.Y.August 21, 2013 Court of Appeals State of New York In the Matter of MAUREEN S. HOERGER, et. al., Petitioner-Appellant, against THOMAS J. SPOTA III, et. al., Respondent-Respondent. W444444444444444444444444444444444444444444444444444 BRIEF FOR AMICUS CURIAE DISTRICT ATTORNEYS ASSOCIATION OF THE STATE OF NEW YORK W444444444444444444444444444444444444444444444444444 KATHLEEN M. RICE Nassau County District Attorney President, District Attorneys Association of the State of New York c/o Queens County District Attorney 125-01 Queens Boulevard Kew Gardens, NY 11415 (718) 286-5803 JOHN M. RYAN EDWARD D. SASLAW Assistant District Attorneys (Queens County) STEVEN A. BENDER Assistant District Attorneys (Westchester County) ITAMAR J. YEGER Assistant District Attorneys (Rockland County) MORRIE I. KLEINBART Assistant District Attorneys (Richmond County) Of Counsel AUGUST 20, 2013 Table of Contents Page No. STATEMENT OF AMICUS CURIAE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 FACTUAL AND LEGAL BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . 2 ARGUMENT THE QUALIFICATIONS TO HOLD THE OFFICE OF DISTRICT ATTORNEY BE ESTABLISHED UNDER THE CONSTITUTION OF THE STATE OF NEW YORK AND THE LAWS OF THE STATE, AND PERFORMING A STATE FUNCTION, IS A MATTER OF STATE LAW AND MAY NOT BE LIMITED BY COUNTY OR LOCAL LAWS.. . . . . . . . . . . . . . . . . . . . . . . . . 8 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------x In the Matter of MAUREEN S. HOERGER, et. al., : Petitioner-Appellant, : -against- : THOMAS J. SPOTA III, et. al., : Respondent-Respondent. : --------------------------------------------------------------------- x The District Attorneys’ Association of the State of New York (“DAASNY”) submits this brief as amicus curiae in the above captioned appeal from an order of the Appellate Division, Second Department dated August 16, 2013. Amicus appears in support of the Respondent District Attorney Spota’s contention that, to the extent that Suffolk County has enacted local legislation which purports to limit to twelve years the continuous service of any person holding the office of District Attorney, it violates the Constitution of the State of New York and cannot be enforced. STATEMENT OF AMICUS CURIAE The District Attorneys Association of the State of New York (DAASNY) is a statewide organization composed of elected District Attorneys from throughout the State of New York, the Special Narcotics Prosecutor of the City of New York, and their nearly 2900 assistants. Members of the Association are responsible for the enforcement of the Penal Laws of this State and the representation of the People of this State in criminal matters arising within their individual counties. The manner of the enforcement and interpretation of these laws of general application are plainly matters of concern statewide; a concern that manifestly reflects that the Office of the District Attorney has a statewide function, one derived exclusively from state law. The enactment of any local law that impacts the statewide function of the office is of broad concern to all the members of the association. The responsibility and concomitant implications for statewide enforcement of the Penal Law places DAASNY in a unique position to brief the Court as to the constitutional and statutory basis of the office of the District Attorney. The statewide function of that Office, as derived from controlling state law, bars any county or locality from enacting laws that impact the qualifications of persons to hold that office. FACTUAL AND LEGAL BACKGROUND In 1993, the Suffolk County Legislature amended Article II of its Charter to establish twelve year term limits on the holders of various offices, including that of District Attorney. Specifically, in Local Law 27-1993, the County Legislature provided that in even years after January 1, 1996, Section 2 C19-1B of the Suffolk County Charter would “prospectively impose a twelve- year limit on consecutive service by . . . elected County-wide officials,” including the District Attorney. Accordingly, Article XIX of the Suffolk Charter, and specifically section C-19.1 provides in sub-section B that “no person shall serve as District Attorney for more than 12 consecutive years.” In support of enactment of this term limits provision, the County Legislature explained that such limitation was necessary because of a “public perception that elected officials are able to entrench themselves in public office at the taxpayers’ expense.” The Legislature further explained that “the public believes that such elected officials become insulated and isolated from the needs and demands of their constituents” and that the “special interests are able to wield greater influences on the governmental process where there is no limit on the terms of office of elected officials because incentives are created for everyone to perpetuate the status quo; special relationships inimic al to the interest of the public may develop; and elected officials become insulated from the true needs and wishes of the public” (See Local Law No. 27-1993, Section 1 [Legislative Intent]). The incumbent District Attorney of Suffolk County, the Honorable Thomas J. Spota, began his service as District Attorney on January 1, 2002, 3 following his election to that office in the previous year. He was re-elected to that office during elections held in 2005 and 2009. The current term in which he serves as District Attorney ends on December 31, 2013. Hence, if the Suffolk County Legislature was empowered to impose a condit6ion on the holder of that office, District Attorney Spota would be disqualified from seeking re-election, contrary to state law, which imposes no such limitations or conditions on holding the Office of District Attorney. District Attorney Spota, along with other countywide officials, commenced an action, therefore, seeking a declaratory judgment that, among other things, the defendant County of “Suffolk was without the authority to apply term limits to the positions[] of District Attorney . . . and thereby create an additional qualification for those seeking the position[] of District Attorney . . .”. After this action had been commenced, a Suffolk County taxpayer, Peter Nichols, sought an order permitting him to be added to the action as a party- defendant. He also sought an order denying a motion by District Attorney Spota and the other county plaintiffs for summary judgment and a declaration that the local law was constitutional. In addition, the District Attorneys Association of the State of New York (hereinafter DAASNY) sought 4 permission to appear amicus curiae and to file a brief. DAASNY’s proposed brief addressed only the constitutionality of the term limits legislation as it bore on District Attorney Spota; it was silent on the intervention question. By an order dated September 25, 2012, and a judgment dated November 8, 2012, Supreme Court, Suffolk County, held that “it is beyond the power of a county to restrict the number of times that such county’s district attorney, sheriff, and/or clerk may run for office; under our existing law, the authority to promulgate such additional qualifications is solely vested with and retained by the State.” Spota v. County of Suffolk, 2012 NY Slip op. 32473(U), slip op at 28-29 (Sup. Ct. Suffolk Co. September 25, 2012). On that basis, the Court granted the District Attorney’s motion for summary judgment (as well as that of the other office holders who challenged the statute). At the same time, the Court denied the motion of the non-party to intervene finding that “while he may be concerned and interested in the issue of term limits for elected officials, he failed] to allege that his interest in that instant matter is superior to, much less any different than, any other voter (or potential voter) in Suffolk County” and that he presented nothing to support the contention that the County’s defense of the statute was insufficient. Spota v. County of Suffolk, 2012 NY Slip op 32473(U), slip op at 14-16; The Court, however, 5 agreed to consider the non-arty’s brief as amicus, and granted DAASNY’s application to appear as amicus as well. While the County of Suffolk filed a Notice of Appeal from the order and judgment of the Supreme Court, it has not perfected its appeal. The non-party has sought to appeal as well, and has filed a brief not only arguing that his motion to intervene should have been granted, but also defending the constitutionality of those portions of the County Charter which purport to p event any person from “serv[ing] as District Attorney for more than 12 consecutive years as if his motion to intervene had been granted and even though the County itself has declined to do so. The District Attorney Association of the State of New York then sought permission to file a brief as amicus curiae, in support of the position to Respondent District Attorney Spota that any such limitation is unconstitutional in that the qualifications for the office of District Attorney are exclusively a matter of state law, not subject to alteration or amendment by any specific 6 county. That motion was granted by order of the Appellate Division dated1 August 15, 2013. In the meantime, the instant proceeding pursuant to Election Law § 16- 102 was commenced seeking to invalidate the petitions of the District Attorney in seeking re-election arguing that he was ineligible to seek re-election on the basis of the same Local Law which Supreme Court had held to be unconstitutional. By order dated August 13, 2013 Supreme Court, Suffolk County denied the petition and, by order and decision dated August 16, 2013, the Appellate Division, Second Department affirmed, with two justices of that Court dissenting. The brief filed in the Appellate Division was based on that Court’s order of June 20, 20131 ordering that respondents’ motion to limit briefing on the non-party’s appeal from the order denying him the right to intervene be “held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.” The purpose of that brief, and the proposed brief to the Court of Appeals in their instant proceeding is solely to express the views of the District Attorneys Association with regard to whether a county can prevent an incumbent District Attorney from running for re-election. The District Attorneys Association expresses no views and takes no position with respect to the argument on any of the other officeholders who are plaintiffs in the Appellate Division case, nor on the merits of the non- party’s appeal or his standing to intervene in that matter, nor on any other issue which may be before this Court. 7 ARGUMENT THE QUALIFICATIONS TO HOLD THE OFFICE OF DISTRICT ATTORNEY BE ESTABLISHED UNDER THE CONSTITUTION OF THE STATE OF NEW YORK AND THE LAWS OF THE STATE, AND PERFORMING A STATE FUNCTION, IS A MATTER OF STATE LAW AND MAY NOT BE LIMITED BY COUNTY OR LOCAL LAWS. On appeal to this Court, petitioner maintains that Suffolk County was well within its rights in limiting to three the number of terms a district attorney elected by the voters of Suffolk County may serve. In enacting Section C19- 1B of the Suffolk County Charter purporting to limit th ability of an incumbent District Attorney to seek re-election to a fourth term of office, it has imposed through local law an additional qualification for a person to hold the office, i.e. a person who has served fewer than three consecutive terms. As the Appellate Division has held, this law violates binding state laws, and, thus, is unenforceable, as the Office of the District Attorney – specifically the qualifications of the person to hold the office, and the authority and responsibilities of the office holder – are exclusively defined, and controlled, by state law. 8 The simple answer to this case is provided by Morrall v. Monroe County, 271 N.Y. 48, 51 (1936). In Morrall, as the County Law authorized, Monroe County had adopted a County Manager form of government which abolished the elected position of County Treasurer, transferring the treasurer’s responsibilities to the County Manager. Although the change in form of government did not eject the treasurer from his position before the end of his term, it did prescribe that no elective official in office, whose office will no longer be filled by election, shall be retired prior to the expiration of his term of office, but during his unexpired term shall perform such duties as may be assigned to him by the county manager. The treasurer insisted that he continue his fiscal duties as the sole overseer of Monroe County’s fisc. In rejecting this notion, this Court distinguished between offices “created or provided for by the State Constitution” and those which were not. The office of county treasurer not being an office created or provided for by the State Constitition, it is well settled that such non-constitutional office “is within the control of the Legislature which may limit its tenure, abolish it altogether, change the method whereby it shall be filled or the amount of compensation which shall attach thereto.” Morrall v. Monroe County, 271 N.Y. at 51 (emphasis added). It follows that the tenure of an officer for whom 9 there is provision in the state constitution may not suffer any legislative alteration. In this case, District Attorney’s Spota tenure will be impacted by the Suffolk County local legislative pronouncement that the maximum tenure of the officer holder is 12 years. Since District Attorney Spota holds a state constitutional office, People v. Ramos, 34 Misc.3d 914, 918 (Sup. Ct. Kings Co. 2012), the legislation is invalid. True it is that Kelley v. McGee, 57 N.Y.2d 522 (1982) held that a district attorney is a local officer for purposes of the constitutional amendment barring alteration in compensation. However, not only is Kelley limited to the compensation question, but what Kelley makes clear as well is the state interest in maintaining district attorney’s salaries at a particular level. Certainly then, if Kelley stands for anything, it is that matters involving the office of district attorney are uniquely of state concern and thus, cannot be impacted by a local law. Indeed, these state concerns are reflected in the existence of state2 constitutional and statutory provision concerning the office of district attorney. Despite the an attempt to confuse the issue in the declaratory judgment action pending2 in the Appellate Division, by pointing to the brief filed by this Association in Kelly v. McGee, 57 N.Y.2d 522 (1982) as in contradiction with its current position, the question here, as Supreme Court found, is not whether the office of the district attorney is considered a state office or a local one “for purposes of the Constitutions ban on midterm salary increases,” id. At 539, but rather whether the state has a “sufficient interest” in that office to permit it to legislate in a manner contrary to the enactment of a count government. Id. See Sapota v. County of Suffolk, 2012 NY Slip Op 32473(U), slip op at 29-30. 10 The state constitution requires that every county elect a District Attorney (see N.Y. CONST. Article XIII, §13[a]). Further, only the governor can remove a district attorney (N.Y. CONST. Article XIII, §13[b] (removal of only by the governor), and only the governor can fill a vacancy in the office. Carey v. Oswego County Legislature, 91 A.D.2d 62 (3d Dept. 1983), aff’d 59 N.Y.2d 847 (1983). In addition, the City of New York cannot abolish the Office of District Attorney but can abolish other offices N.Y. CONST. Article XIII, §13[c]. Moreover, the powers and duties of the district attorney are defined not by local law but by state law. County Law §700 [defining “powers and duties” of office]; County Law §927 [defining powers and duties of Office of District Attorney in New York City]. These state constitutional and statutory law, “demonstrate a recognition by the State that the security, independence, competence and integrity of the officer responsible for the enforcement of the State’s penal laws is a matter of Statewide concern,” Baez v. Hennessy, 853 F.2d 73, 76-78 (2d Cir. 1988); see also Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 53 (1983) (“The powers of the District Attorney . . . are conferred upon her by statute . . . . She may delegate duties to her assistants but she may not transfer the fundamental responsibilities of the office to them”) Matter of Johnson v. Pataki, 91 N.Y.2d 11 214, 225 (1997) (“The Constitution provides for the Offices of Governor, Attorney-General and District Attorneys, but it does not identify particular . . . prosecutorial duties or allocate the responsibility among them. Rather, the delineation of law enforcement functions are consistently been left to the Legislature”) (citations omitted and emphasis supplied). Amicus recognizes the Article IX of the Constitution includes a Bill of Rights for local governments. That Bill of Rights recognizes that “[e]ffective local self-government and intergovernmental cooperation are purposes of the people of the state”. N.Y. CONST., Article IX, § 1. It also provides that : “[t]he legislature shall provide for the creation and organization of local governments in such manner as shall secure to them the rights, powers, privileges and immunities granted to them by this constitution.” N.Y. CONST., Article IX § 2 (a). In short, constitutional homerule provisions secure to localities, including counties, the right to choose their officers without hindrance from the state, thus preserving their ability to administer those powers of self-government that they enjoyed before the Constitution was adopted Roth v. Cuevas, 158 Misc.2d 238, 242 (Sup. Ct. N.Y. 1993) citing People v. Village of Pelham, 215 NY 374 (1915). However, those powers had to be local in nature. Id. 12 Municipal Home Rule Law § 50 (1) similarly enshrines local power. It states: “it is the intention of the legislature by this chapter to provide for carrying into effect provisions of article nine of the constitution and the stature of local governments and to enable local governments to adopt and amend local laws for the purpose of fully and completely exercising the powers granted to them under the terms and spirit of such article” (emphasis supplied). Further, Municipal Home Rule Law § 10 (1) (I) provides: “[e]very local government shall have power to adopt and amend local laws not inconsistent with the provisions of the constitution or not inconsistent with any general law relating to its property, affairs or government.” These provisions serve to allow localities to administer their local concerns without excessive sate inference. However, these “home rule” provisions, constitutional and statutory alike, do not authorize local government limits on a district attorney’s tenure. Home rule provisions do not apply “i8f the subject be in a substantial degree a matter of State concern . . . though intermingled with . . . concerns of the locality.” Adler v. Deegan, 251 N.Y. 467, 471 (1929) and at 489-490 (Cardozo, J., concurring). Over fifty years later, the Court of Appeals reaffirmed this point, holding that home rule provisions only apply “to a 13 special law which is directly concerned with the property, affairs or government of a local government and unrelated to a matter of proper concern to State government.” Cuomo v. Islip, 64 .Y.2s 50, 52, 56 (1984). See also City of New York v. State of New York, 94 N.Y.2ds 577, 590 (2000); Uniformed Firefighters Assn. v. City of New York, 50 N.Y.2d 85, 90 (1980). It cannot be seriously maintained that the powers, duties, eligibility and tenure of a district attorney are not matters of statewide concern. Not only are the powers and duties of a district attorney enshrined in a state statute, it can hardly be disputed that “the enforcement, on a local level, of the penal laws of this State and the representation of the people of this State in criminal matters arising within the county, is a matter of concern to the State.” Kelly v. McGee, 57 N.Y.2d 522, 537 91982). After all, it is of the utmost importance to the state and its citizens that interpretation of the criminal law by the state officer empowered to enforce it, as well as the manner in which it is enforced, be as uniform as possible. Article XIII § 13, subd [c] of the Constitution undoubtedly confirms this. That provision, while acknowledging that the City of New York could abolish certain offices, explicitly forbade the City from abolishing the office of District Attorney. It necessarily follows, of course, that the office of District Attorney 14 may not be abolished in any county. And, since the office cannot be abolished by local action, the mode of selection cannot be impacted either. There is no principled basis to distinguish between the powers of the city of New York with respect to the officers who execute state functions; a state officer is a state officer regardless of the nature of the political subdivision with budgetary oversight over the state office. Further, because the state office of district attorney cannot be abolished by local action, it cannot be seriously maintained that local action can alter its mode of selection. That this is so is confirmed by Carey, the Oswego County Legislature tried to fill a vacancy in the office of district attorney as provided by that county’s local law. This was successfully challenged in Carey as beyond the power of the county legislature, in light of the relevant provision of the County Law. The power to alter the mode of selection to an office is a subset of the power to appoint to that office. Inasmuch as the county does not have the power to appoint to the office in case of vacancy, it cannot have the power to alter the mode of selection. Roth v. Cuevas, 82 N.Y.2d 791 (1993), aff’g on op. below, 158 Misc.2d 238 (Sup. Ct. N.Y. Co. 1993) merely confirms that the local limit on district attorney tenure is unconstitutional. In Roth, this Court affirmed an order that 15 had concluded that the City of New York was permitted to set term limits for the offices of Mayor, Public Advocate, Comptroller, Borough Presidents, and Members of the City Counsel of the City of New York. In affirming the City’s right to impose term limits, Supreme Court observed that “[t]he purpose of home rule provisions of the Constitution is to secure the right of [localities] to choose their officers without hindrance from the State and to preserve their privilege of continuing to administer those powers of self-government with they enjoyed before the adoption of the Constitution, provided such powers remain local in nature.” 158 Misc.2d at 242. But, of course, the powers of the district attorney are not, in fact, limited to the county in which he has been elected. For example, a district attorney may prosecute the crime of enterprise corruption in any county in which any one of the criminal acts included in the pattern of criminal activity could be prosecuted under the ordinary venue provisions of CPL article 20; the county in which the enterprise was corrupted; the county in which criminal proceeds are invested in an enterprise; or the county in which the “conduct of the actor” was designed to have a “particular effect.” Penal Law §460.40. Similarly, the crime of identity theft may be prosecuted in (I) in any county in which part of the offense took place regardless of whether the defendant was actually present 16 in such county, or (ii) in the county in which the person who suffers financial loss resided at the time of the commission of the offense, or (iii) in the county where the person whose personal identifying information was used in the commission of the offense resided at the time of the commission of the offense. CPL §20.40(4)(1). What is clear from these two provisions is that a district attorney in one county can prosecute crimes whose acts have taken place in another county. But even apart from the statewide importance of the 62 district attorneys across the state, a local government’s authority to enact local laws under the Constitution or the Municipal Home Rule Law is conditioned on the exercise of such authority not being inconsistent with any State enactment. Consol. Edison Co. v. Town of Red Hook, 60 N.Y.2d 99, 107 (1983). A limitation on the number of terms an elected official can serve, that is, a limitation on tenure, is a qualification for office. See generally United States Term Limits v. Thornton, 514 U.S. 779 (1995). Suffolk County’s limitation on the tenure of its elected district attorney is flatly inconsistent with the qualifications set out by the legislature and the courts for that office. State law provides three qualifications for a District Attorney. First, like other public officers, he or she must be at least 18 years old, be a citizen of the United States, and reside 17 within the county in which he or she is to serve (subject to exceptions authorized by state law). Public Officers Law §3(1). Further, a candidate for the office must be an attorney admitted to the practice of law in the State of New York. Curry v. Hosley, 86 N.Y.2d 470 (1995) Here, by providing that a District Attorney may not qualify as a candidate should he wish to serve a fourth term, Suffolk County has created a qualification for the office of District Attorney that is unique to that county and is contrary to the qualification provisions of state law. This it cannot do.3 * * * * * The Suffolk County Legislature enacted a statute that placed a l imit on the number of terms that a statue constitutional officer, the county district attorney, may serve. A county cannot add to the statutory qualifications for A brief filed by the non-party appellant in the declaratory judgment case pending ion the3 Appellate Division all but ignores section 3 of the Public Officers Law so as to argue that “the legislature has never in two hundred and thirty-six years specifically addressed any qualifications for [the offices ostensibly covered by the county legislation he seeks to defend] other than the general qualifications for all public office holders in Public Officers Law Sec 3" (Brief of Non-Party at 21). There can be no question, though, that section three applies to the district attorney, see, e.g., Hosley v. Curry, 85 N.Y.2d 447, 451 (1995), even if it also covers other “public officers.” That provision sets forth the qualifications for holding the office of District Attorney. Id. A county cannot either add to or alter those qualifications by purporting to limit the number of years the district attorney can serve any more than it could more directly enact legislation barring “Respondent Spota [from] serv[ing] in that office during potential years thirteen to sixteen of his fourth term in office.” (Non-Party’s Brief at 28). See Kelley v. McGee, 57 N.Y.2ds 522, 540, n.14 (1982) (“power [of] local governments over the compensation of their officers. . .is limited to the enactment of local laws which are not inconsistent with any general law relating to that subject”). 18 that office by enacting such limits because the limits are inconsistent with those authorized by state law, the office being limited is a constitutional one, and is of statewide significance. A local government authority simply cannot enact a statute inconsistent with state law, particularly one that impacts on a state constitutional office. And, inasmuch as the term limits provision is invalid, the challenge to District Attorney Spota’s petition grounded in that invalid local law limitation was correctly rejected. 19 CONCLUSION For the reasons set forth above, defendant's judgment of conviction should be affirmed. Respectfully submitted, KATHLEEN M. RICE Nassau County District Attorney President, District Attorneys Association of the State of New York c/o Queens County District Attorney 125-01 Queens Boulevard Kew Gardens, New York 11415 JOHN M. RYAN EDWARD D. SASLAW Assistant District Attorneys (Queens County) STEVEN A. BENDER Assistant District Attorney (Westchester County) ITAMAR J. YEGER Assistant District Attorney (Rockland County) MORRIE J. KLEINBART Assistant District Attorney (Richmond County) August 2013 20 21