The People, Respondent,v.Martesha Davidson, Appellant.BriefN.Y.May 3, 2016No. APL-2015-00160 To be argued by: Barbara D. Underwood 15 minutes requested County Court, Tompkins County, Index No. 2014-9091-A State of New York Court of Appeals THE PEOPLE OF THE STATE OF NEW YORK, Appellant-Respondent, -against- MARTESHA DAVIDSON, Respondent-Appellant. CORRECTED BRIEF FOR AMICUS CURIAE ATTORNEY GENERAL OF THE STATE OF NEW YORK AND ADDENDUM BARBARA D. UNDERWOOD Solicitor General ANISHA S. DASGUPTA Deputy Solicitor General ANDREW W. AMEND Senior Assistant Solicitor General of Counsel ERIC T. SCHNEIDERMAN Attorney General of the State of New York 120 Broadway New York, New York 10271 (212) 416-8022 (212) 416-8962 (facsimile) Dated: December 22, 2015 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................. iii INTEREST OF THE ATTORNEY GENERAL ................................ 1 QUESTIONS PRESENTED ............................................................. 5 STATEMENT OF THE CASE .......................................................... 6 A. The Protection of People with Special Needs Act .......... 6 B. Factual and Procedural Background ............................. 8 1. Underlying events ................................................... 8 2. Proceedings in the trial court.................................. 9 3. Proceedings on appeal ........................................... 11 ARGUMENT .................................................................................. 14 POINT I - THE NEW YORK CONSTITUTION DOES NOT PERMIT THE LEGISLATURE TO CREATE A SPECIAL PROSECUTOR FOR A CLASS OF CASES, INDEPENDENT OF A COUNTY DISTRICT ATTORNEY OR THE ATTORNEY GENERAL .......................................... 16 A. The Legislature May Not Assign Essential Functions of Offices Filled by Means Prescribed in the Constitution to Different Officers Selected by Different Means. ................ 16 B. Criminal Prosecution Is an Essential Function of the Offices of County District Attorney and Attorney General. ........................ 22 ii TABLE OF CONTENTS (cont’d) Page C. The Constitution Intentionally Provides for Elected Rather Than Appointed Prosecutors. ......................................................... 26 D. If Read to Invest the Special Prosecutor With Independent Prosecutorial Authority, the Act Would Overstep These Limits. .............. 29 1. The Act would impermissibly assign core prosecutorial powers to an appointed officer not accountable to a County District Attorney or the Attorney General. .......................................................... 29 2. The Act would violate important public policies protected by the Constitution. .......... 36 POINT II - THE STATUTE MAY BE READ TO CONFER PROSECUTORIAL AUTHORITY ON THE JUSTICE CENTER’S SPECIAL PROSECUTOR SUBJECT TO THE CONSENT OF A COUNTY DISTRICT ATTORNEY .............................................................. 40 POINT III - THE SPECIAL PROSECUTOR MAY IN ANY EVENT CONDUCT NON-FELONY PROSECUTIONS UNDER NON- STATUTORY AUTHORITY DELEGATED BY A COUNTY DISTRICT ATTORNEY ...................... 43 CONCLUSION ................................................................................ 48 iii TABLE OF AUTHORITIES Cases Page(s) Matter of Bd. of Supervisors of Montgomery County v. Aulisi, 62 A.D.2d 644 (3d Dep’t 1978) .................................................... 35 Matter of Haggerty v. Himelein, 89 N.Y.2d 431 (1997) ...................................................... 25, 30, 39 Matter of Johnson v. Pataki, 91 N.Y.2d 214 (1997) ...................................................... 24, 33, 38 Matter of Lorie C., 49 N.Y.2d 161 (1980) .................................................................. 42 Matter of People v. Christensen, 77 A.D.3d 174 (2d Dep’t 2010) .................................................... 45 Matter of Schumer v. Holtzman, 60 N.Y.2d 46 (1983) .............................................................. 25, 39 Matter of Soares v. Carter, 25 N.Y.3d 1011 (2015) .......................................................... 26, 42 Mulroy v. Carey, 58 A.D.2d 207 (4th Dep’t 1977) ............................................. 23, 24 People ex rel. Bolton v. Albertson, 55 N.Y. 50 (1873) .................................................................. 17, 18 People ex rel. Burby v. Howland, 155 N.Y. 270 (1898) .................................................. 18, 19, 36, 37 People ex rel. Gardenier v. Bd. of Supervisors of County of Columbia, 134 N.Y. 1 (1892) ........................................................................ 23 People ex rel. McEwan v. Keeler, 64 How. Pr. 478 (N.Y. Gen. Term 1883) .................. 18, 19, 28, 29 iv TABLE OF AUTHORITIES (cont’d) Cases Page(s) People ex rel. Wogan v. Rafferty, 208 N.Y. 451 (1913) ............................................................. passim People v. Correa, 15 N.Y.3d 213 (2010) ................................................................... 10 People v. Czajka, 11 N.Y.2d 253 (1962) ................................................................... 45 People v. DeLeyden, 10 N.Y.2d 293 (1961) ................................................................... 45 People v. Fuller, 57 N.Y.2d 152 (1982) ................................................................... 42 People v. Gilmour, 98 N.Y.2d 126 (2002) ....................................................... 16, 22, 24 People v. Leahy, 72 N.Y.2d 510 (1988) ................................................................... 35 People v. Leombruno, 10 N.Y.2d 900 (1961) ................................................................... 45 People v. Lytle, 7 A.D. 553 (4th Dep’t 1896) .................................................. 34, 35 People v. Raymond, 37 N.Y. 428 (1868) ................................................................. 17, 37 People v. Russ, 79 N.Y.2d 173 (1992) ................................................................... 38 People v. Schildhaus, 4 N.Y.2d 883 (1958) ..................................................................... 45 v TABLE OF AUTHORITIES (cont’d) Cases Page(s) People v. Soddano, 86 N.Y.2d 727 (1995) ...................................................... 44, 45, 46 People v. Van Sickle, 13 N.Y.2d 61 (1963) .............................................................. 45, 46 People v. Zimmer, 51 N.Y.2d 390 (1980) ............................................................ 29, 38 Rector, Church Wardens & Vestrymen of St. Bartholomew’s Church in City of New York v. Comm. to Preserve St. Bartholomew’s Church, Inc., 84 A.D.2d 309 (1st Dep’t 1982) .............................................. 42-43 Saxton v. Carey, 44 N.Y.2d 545 (1978) .................................................................. 36 Thompson v. Wallin, 301 N.Y. 476 (1950) .................................................................... 41 Town of Putnam Valley v. Slutzky, 283 N.Y. 334 (1940) .............................................................. 19, 20 Warner v. People ex rel. Conner, 2 Denio 272 (N.Y. 1845) .................................................. 18, 20, 22 Westchester County Soc’y for Prevention of Cruelty to Animals v. Mengel, 292 N.Y. 121 (1944) .................................................................... 41 vi TABLE OF AUTHORITIES (cont’d) Constitutional Provisions Page(s) N.Y. Constitution art. IV (1821) ......................................................................... 23, 26 art. V ............................................................................................ 16 art. V (1846) ................................................................................ 26 art. IX .................................................................................... 21, 32 art. X (1846) ................................................................................. 26 art. XIII ........................................................................................ 16 Laws Ch. 560, 1991 N.Y. Laws 3500 ........................................................ 36 Ch. 501, 2012 McKinney’s N.Y. Laws 1288 ............................ passim Agriculture & Markets Law § 118 .................................................. 45 Criminal Procedure Law § 10.10 .......................................................................................... 10 § 10.20 .......................................................................................... 10 § 10.30 .......................................................................................... 10 County Law § 700 ....................................................................................... 23, 42 § 701 ............................................................................................. 34 Environmental Conservation Law § 71-1933 ..................................................................................... 25 § 71-2105 ..................................................................................... 25 Executive Law § 63 ............................................................................................... 24 § 71 ......................................................................................... 10, 12 § 551 ............................................................................................... 7 § 552 ..................................................................................... passim § 553 ............................................................................................... 7 vii TABLE OF AUTHORITIES (cont’d) Laws Page(s) General Business Law § 347 ............................................................................................ 24 § 358 ............................................................................................ 24 General Municipal Law § 374 ......................................................... 45 Judiciary Law § 177-c ..................................................................... 44 Social Services Law § 488 .............................................................................................. 7 § 492 .............................................................................................. 7 Tax Law § 691 ............................................................................................ 25 § 1091 .......................................................................................... 25 Village Law § 20-2006 ................................................................ 45-46 Workers’ Compensation Law § 132 ................................................ 25 Miscellaneous Authorities 2 Charles Z. Lincoln, The Constitutional History of New York (1906) ............................................................................ 23, 27 Documents of the Constitutional Convention of the State of N.Y., Doc. No. 178 (May 12, 1915) ............................... 28 J. Hampden Dougherty, Constitutional History of the State of New York (2d ed. 1915) ........................................... 27, 28 Karl T.W. Swanson, The Background and Development of the Office of Attorney General in New York State (1954) ........................................................................................... 22 viii TABLE OF AUTHORITIES (cont’d) Miscellaneous Authorities Page(s) Ken Lovett, Justice Center Bill Done, N.Y. Daily News: The Daily Politics, June 17, 2012, available at http://www.nydailynews.com/blogs/dailypolitics/justice- center-bill-blog-entry-1.1690845. ............................................... 39 Messages of Governor Hoffman, Annual Message (Jan. 2, 1872), reprinted in Public Papers of John T. Hoffman, Governor of New York ................................................ 27 Problems Relating to Executive Administration and Powers, 8 Reports of N.Y. Constitutional Convention Comm. (1938) .................................................................. 28, 38, 39 Problems Relating to Home Rule and Local Government, 11 Reports of N.Y. Constitutional Convention Comm. (1938) ........................................ 20, 21, 27, 28 Report 14, Temporary State Commission on Constitutional Convention, State Government (1967) ........ 21, 39 William C. Donnino, Supplementary Practice Commentaries [2012], 11A McKinney’s Cons. Laws of N.Y., to C.P.L. § 1.20 (Supp. 2015) ........................................... 3 INTEREST OF THE ATTORNEY GENERAL This case raises the fundamental question whether, and in what circumstances, the New York Constitution permits the Legislature to assign the prosecutorial power of this State to an unelected Special Prosecutor, in light of the Constitution’s assignment of that power to the State’s County District Attorneys and Attorney General. This is a misdemeanor prosecution brought by the Special Prosecutor within the Justice Center for the Protection of People with Special Needs, an office created by the Legislature in 2012. See Executive Law § 552. Defendant, an employee of a state residential facility for male juvenile delinquents, is charged with Endangering the Welfare of a Child, Penal Law § 260.10(1) (a misdemeanor), and Harassment in the Second Degree, Penal Law § 240.26 (a violation), for hitting a resident in the face causing bleeding around his nose. Defendant challenged the authority of the Special Prosecutor to bring this prosecution on both constitutional and statutory grounds, arguing that (1) the statute authorizing the Special 2 Prosecutor to bring this prosecution was an unconstitutional delegation of prosecutorial authority to an unelected executive officer, and (2) in any event the statute as written authorizes the Special Prosecutor to appear in County Court or Supreme Court but not in the local criminal court in which this prosecution was commenced. In this Court, defendant gave notice of intent to challenge the constitutionality of the statute, but she now advances her constitutional argument primarily as a reason for this Court to adopt her narrow view of the statute as inapplicable to cases that, like this one, are commenced in local criminal courts. The constitutional issue she has identified is of grave importance, and not merely as it may affect this case. A prominent commentator, writing in McKinney’s Practice Commentary to the Criminal Procedure Law (C.P.L.), has observed that, “[g]iven that the Attorney General and a district attorney are elected, constitutional officers, the courts will undoubtedly be called upon to decide whether a ‘special prosecutor,’ authorized by statute, appointed by the Governor, and given state-wide prosecutorial 3 power with respect to a defined class of citizens is constitutionally permissible.”1 And the resolution of that issue will have important ramifications, both for this case and for prosecutions under Executive Law § 552 generally—as well as for proposals for the legislative creation of other unelected special prosecutors. For these reasons, the Attorney General, who was notified of the constitutional challenge only on defendant’s appeal to this Court, files this amicus brief to assist the Court in its consideration of this fundamental question concerning the Constitution’s assignment of prosecutorial power in this State. Criminal prosecution has long been an essential function of the elected constitutional offices of the County District Attorney and the State Attorney General.2 As this Court has recognized on 1 William C. Donnino, Supplementary Practice Commentaries [2012], 11A McKinney’s Cons. Laws of N.Y., to C.P.L. § 1.20, at 13 (Supp. 2015) (internal citations omitted). 2 This brief uses the term “County District Attorney” to refer to the officer elected for each County under article 13, § 13, of the Constitution and described in article 18 of the County Law. Although the Protection of People with Special Needs Act added the Special Prosecutor to the list of officers who may act as a “[d]istrict attorney” under the C.P.L. (see infra 7-8), that statutory (continued on next page) 4 many occasions, the vesting of prosecutorial authority in officials who are elected specifically for that purpose and made directly accountable to the people plays an important role in maintaining public confidence in the criminal justice system. As explained below, the New York Constitution does not permit the Legislature to deviate from the historic assignment of prosecutorial powers to the County District Attorneys and Attorney General, by creating an appointed prosecutor with authority to initiate and conduct prosecutions in a class of cases independently from those officials. This Court should accordingly reject the Special Prosecutor’s claim that the Protection of People with Special Needs Act (Ch. 501, 2012 McKinney’s N.Y. Laws 1288 (codified in part at Executive Law §§ 550-562)) confers that authority upon her, and instead either (1) construe the Act to require the Special Prosecutor to act subject to the ultimate authority of County District Attorneys, or (2) consider whether the amendment did not—and constitutionally could not—confer on the Special Prosecutor any essential duties or functions of the State’s constitutional County District Attorneys. 5 Special Prosecutor may, in misdemeanor cases like this one, act under the common law authority of law enforcement officers to prosecute non-felony offenses with the knowledge and consent of the County District Attorney. Under either approach, the present prosecution would be valid if the County District Attorney consented to it—a factual question that is not clearly addressed in the record below. Furthermore, under the common law authority identified above, the Special Prosecutor could generally initiate and conduct abuse and neglect prosecutions, so long as her exercise of prosecutorial power is limited to non-felony matters and is undertaken with the knowledge and consent of a County District Attorney. QUESTIONS PRESENTED 1. Whether the Constitution permits the Legislature to create an unelected criminal prosecutor for a class of cases, operating independently from a County District Attorney or the Attorney General. 6 2. Whether, if the Legislature may not constitutionally create an independent unelected criminal prosecutor for a class of cases—or to avoid constitutional doubts, the Protection of People with Special Needs Act should be construed as conferring prosecutorial powers on the Special Prosecutor subject to the ultimate authority of a County District Attorney. 3. Whether in any event the Special Prosecutor may conduct the current prosecution and other non-felony prosecutions under common law authority allowing such prosecutions to be handled by unelected prosecutors with the knowledge and consent of a County District Attorney. STATEMENT OF THE CASE A. The Protection of People with Special Needs Act At issue in this case is the validity of a criminal prosecution conducted under the Protection of People with Special Needs Act. The Act seeks to enhance protections for children and adults “with disabilities or other life circumstances that make them vulnerable” to abuse in residential facilities supervised by state agencies such 7 as the Office of Mental Health, the Office of People with Developmental Disabilities, and the Office of Children and Family Services (OCFS). Ch. 501, § 1, 2012 McKinney’s N.Y. Laws at 1289. To that end, the Act created the Justice Center for the Protection of People with Special Needs (“Justice Center”), a state agency headed by an executive director who is appointed by the Governor with the advice and consent of the Senate. See Executive Law § 551(1). The Justice Center’s responsibilities include receiving reports of abuse and neglect of vulnerable individuals, investigating reported incidents, reviewing substantiated findings of abuse or neglect, and pursuing disciplinary charges against state employees. Id. §§ 552(1), 553; Social Services Law § 492. The Justice Center also contains a unit charged with prosecuting criminal matters under the supervision of the Special Prosecutor, who is appointed by the Governor. See Executive Law §§ 552(1)-(2). In a provision codified at Executive Law § 552(2)(a), the Act states that the Special Prosecutor “shall have the duty and power[ ] . . . to investigate and prosecute offenses involving abuse or neglect” as defined in Social Services Law § 488. The 8 Legislature also amended C.P.L. § 1.20(32)’s definition of “district attorney” to include the Special Prosecutor. See Ch. 501, § 4, 2012 McKinney’s N.Y. Laws at 1302. The Act’s statement of legislative findings and purpose describes the Special Prosecutor as having “concurrent authority with district attorneys to prosecute abuse and neglect crimes” against vulnerable individuals. See Ch. 501, § 1, 2012 McKinney’s N.Y. Laws at 1289. At the same time, the Act’s operative provisions declare that “nothing herein shall interfere with the ability of district attorneys at any time to receive complaints, investigate and prosecute any suspected abuse or neglect.” Executive Law § 552(2)(a). B. Factual and Procedural Background 1. Underlying events The present prosecution stems from a December 2013 incident at Finger Lakes Residential Center, an OCFS facility located in Tompkins County that houses male adjudicated juvenile delinquents. Defendant Martesha Davidson, an OCFS employee, 9 allegedly struck a fourteen-year-old Center resident and caused bleeding around his nose. (A. 3.) 2. Proceedings in the trial court In letters dated January 30, 2014, the Special Prosecutor informed the Lansing Town Court and the Tompkins County District Attorney that she intended to exercise her authority under Executive Law § 552 to prosecute defendant. Ltr. to Town Justice John Howell (Jan. 30, 2014) (contained in Lansing Town Court record); Ltr. to District Attorney Gwen Wilkinson (Jan. 30, 2014) (contained in Lansing Town Court record). The same day, defendant was arrested on two charges set forth in a misdemeanor information: one count of Endangering the Welfare of a Child in violation of Penal Law § 260.10(1) (an A misdemeanor), and one count of Harassment in the Second Degree in violation of Penal Law § 240.26(1) (a violation). (A. 13, 16.) Also on January 30, 2014, counsel for the defendant submitted a letter to the Lansing Town Court objecting to the prosecution on two grounds. First, the defense argued that “[u]nder the New York State Constitution the only entity with the 10 authority to prosecute criminal matters is the county district attorney.”3 (A. 11.) Second, the defense argued that the Justice Center’s Special Prosecutor “was not granted the power to prosecute offenses in local courts” such as the Lansing Town Court.4 (A. 11.) Citing Executive Law § 552(2)(c), which requires the Special Prosecutor to give notice to a County District Attorney before appearing in Supreme Court or County Court, the defense contended that the Special Prosecutor lacked authority to prosecute outside those courts. (A. 11-12.) The Lansing Town Court (Howell, J.) agreed 3 Counsel did not notify the Attorney General, as required by Executive Law § 71, that defendant intended to challenge the constitutionality of the statute creating the Special Prosecutor. Nor did the Lansing Town Court require such notice to be given. 4 The State’s “local courts”—which include Town Court, Village Court, and the New York City Criminal Court—have preliminary jurisdiction of all offenses and trial jurisdiction of all offenses other than felonies. C.P.L. §§ 10.10, 10.30. The State’s “superior courts”—Supreme Court and County Court—have preliminary and trial jurisdiction of all offenses, including felonies, misdemeanors, and violations and traffic infractions. Id. §§ 10.10, 10.20. See also People v. Correa, 15 N.Y.3d 213, 229-30 (2010) (discussing distinctions in New York law between superior and local criminal courts and between preliminary and trial jurisdiction). 11 with this statutory argument and dismissed all charges, without reaching the constitutional challenge. (A. 6-10.) 3. Proceedings on appeal The Special Prosecutor appealed the dismissal to the Tompkins County Court, which had appellate jurisdiction under C.P.L. §§ 450.20(1) and 450.60(3). (See A. 3.) On appeal, the Special Prosecutor repeated her arguments made below that Executive Law § 552(2) expressly conferred authority on her to prosecute abuse and neglect cases in both local and superior criminal courts. (A. 3.) In opposition, defendant argued that the legislation creating the Special Prosecutor was unconstitutional because it vested prosecutorial authority in an officer other than a County District Attorney or the Attorney General. (A. 3.) In addition, defendant argued that the Special Prosecutor’s appearance in Town Court was barred by Executive Law § 552(2)(c), and that the Special Prosecutor might have failed to comply with that section’s requirement—which defendant deemed applicable to any 12 prosecution—to notify the County District Attorney before appearing. (A. 3-4.) The Tompkins County Court (Rowley, J.) agreed with the Special Prosecutor’s reading of Executive Law § 552 and reversed the Town Court’s order dismissing the criminal charges. (A. 4-5.) The court observed that defendant appeared not to have notified the Attorney General of her constitutional challenge but did not direct that such notice be served (A. 5), notwithstanding Executive Law § 71’s provision that an appellate court before which a constitutional challenge is pending “shall make an order, directing the party desiring to raise such question, to serve notice thereof on the attorney-general.” The County Court instead erroneously stated that defendant’s constitutional challenge had been “raised for the first time on appeal” and on those grounds declined to consider it. (A. 5.) Defendant applied to this Court under C.P.L. § 460.20 for leave to appeal the Tompkins County Court’s ruling. Justice Read granted the application. (A. 2.) Pursuant to this Court’s Rule 500.9, defendant sent this Office a notice stating that she “intends 13 to assert that The Protection of People with Special Needs Act (‘PPSNA’) (Chap 501, Laws of 2012) is not constitutional.” Notice of Assertion Statute Is Unconstitutional (June 25, 2012). In her brief to this Court, defendant discusses several reasons why the legislative grant of prosecutorial power to an unelected Special Prosecutor is likely unconstitutional. Although defendant purports not to be raising a constitutional challenge, she argues that the serious constitutional concerns she has identified should inform the Court’s consideration of her claim that the Special Prosecutor is not authorized to bring prosecutions in the State’s local criminal courts. Brief for Appellant (“App. Br.”) at 3-4. The Special Prosecutor argues in opposition that the Protection of People with Special Needs Act constitutionally authorizes the Justice Center’s Special Prosecutor to prosecute in local and superior criminal courts alike. Brief for Respondent (“Resp. Br.”) at 11-26. The parties have thus joined issue on the constitutional questions presented by the statute, and the Attorney General now submits this amicus curiae brief to address the constitutional issues raised by the parties. 14 ARGUMENT This case raises questions about the nature of the prosecutions the Justice Center’s Special Prosecutor may validly pursue. The parties to the case mistakenly assume that the Protection of People with Special Needs Act validly grants the Special Prosecutor authority to initiate and conduct prosecutions, and that the validity of the present prosecution turns on the scope of that grant. But if the Act is read to grant independent prosecutorial power to the Special Prosecutor, it would violate the Constitution’s commitment of the State’s prosecutorial power to County District Attorneys and the Attorney General.5 Long-standing 5 The Special Prosecutor mistakenly claims that defendant did not raise a constitutional challenge in her motion to dismiss and thus that “any constitutional claim she is now making is not preserved and is not within the jurisdiction of this Court.” Br. at 18. Defendant did raise such a challenge, however. (See A. 11 (“Under the New York State Constitution the only entity with the authority to prosecute criminal matters is the county district attorney.”).) And she continues to urge this Court to consider constitutional concerns as a reason to interpret the Protection of People with Special Needs Act narrowly. In these circumstances, there is no jurisdictional bar to this Court’s consideration of relevant constitutional principles. 15 constitutional rules bar the Legislature from transferring essential functions of elected constitutional officers to officers selected by appointment. And criminal prosecution is an essential function of two elected constitutional offices—County District Attorney and Attorney General. Ultimate responsibility for deciding whether and how to conduct prosecutions in a class of cases consequently may not be reassigned to a different officer who, like the Special Prosecutor, is appointed instead of elected. See infra Point I. Nonetheless, the present prosecution may still be valid, if the County District Attorney consented to it—a factual question that is not clearly addressed in the record below. First, the statute may be read to respect the Constitution’s commitment of prosecutorial power to the elected County District Attorneys and to the Attorney General, by reading the statute to require the Special Prosecutor to act with the consent of a County District Attorney. See infra Point II. Second, apart from the statute, the Special Prosecutor may be able to conduct the present prosecution and others like it under the long-standing common law authority 16 of unelected law enforcement officials to conduct non-felony prosecutions on behalf of consenting County District Attorneys. See infra Point III. POINT I THE NEW YORK CONSTITUTION DOES NOT PERMIT THE LEGISLATURE TO CREATE A SPECIAL PROSECUTOR FOR A CLASS OF CASES, INDEPENDENT OF A COUNTY DISTRICT ATTORNEY OR THE ATTORNEY GENERAL A. The Legislature May Not Assign Essential Functions of Offices Filled by Means Prescribed in the Constitution to Different Officers Selected by Different Means. “The New York State Constitution establishes the offices of Attorney General and District Attorney,” People v. Gilmour, 98 N.Y.2d 126, 130 (2002) (citation omitted), and specifies that they are to be elected officers.6 This Court has long held that 6 See N.Y. Const., art. V, §1 (“The comptroller and attorney- general shall be chosen at the same general election as the governor and hold office for the same term . . . .”); id. art. XIII, § 13 (“In each county a district attorney shall be chosen by the electors once in every three or four years as the legislature shall direct.”). 17 where the Constitution creates or recognizes an office and prescribes how it is to be filled, “the Legislature may not transfer any essential function of the office to a different officer chosen in a different manner.” People ex rel. Wogan v. Rafferty, 208 N.Y. 451, 456 (1913). In Wogan, for example, the Court held that the Constitution did not permit legislation purporting to create a Deputy County Clerk who would have “all the powers and . . . duties” of the elected County Clerk respecting the County Court but would be selected by appointment and authorized to serve a longer term than the Clerk himself. Id. at 455, 460.7 When the Legislature “assumes the power to take from a constitutional officer the substance of the office itself, and to transfer it to another who is to be appointed in a different manner and to hold . . . a different tenure than that which was provided 7 See also People ex rel. Bolton v. Albertson, 55 N.Y. 50, 56 (1873) (by providing for selection of local government officers through certain means, constitutional provision was “absolute in its prohibition” of their selection through other means); People v. Raymond, 37 N.Y. 428, 430 (1868) (locally elected New York City tax assessors could not be replaced by tax commissioners having responsibility for “the same essential functions,” but appointed by the Governor with the advice and consent of the Senate). 18 for by the Constitution,” that is “not a legitimate exercise of the right to regulate the duties or emoluments of the office, but an infringement upon the constitutional mode of appointment.” Warner v. People ex rel. Conner, 2 Denio 272, 281 (N.Y. 1845) (Walworth, Ch.) (quoted in Wogan, 208 N.Y. at 456-47). This principle applies regardless of whether a statute reassigns all of a constitutional officer’s essential functions, or only some of them. The Legislature may not strip a constitutionally-recognized office of any “substantial attribute,” nor may it accomplish the same end by dividing an office into parts and distributing portions of that office’s responsibility to officials selected by a different method from what the Constitution provides for the original officer. Wogan, 208 N.Y. at 456-57; Bolton, 55 N.Y. at 57 (same); see also, e.g., People ex rel. Burby v. Howland, 155 N.Y. 270, 278 (1898) (holding unconstitutional legislation curbing criminal jurisdiction of Justices of the Peace); People ex rel. McEwan v. Keeler, 64 How. Pr. 478, 484 (N.Y. Gen. Term 1883) (“common-law powers and duties pertaining to the office of sheriff could not be transferred to an appointed officer”). 19 If that were not the case, and the Legislature could transfer even one essential power of an elected constitutional officer to a different officer selected by appointment, there would not be “any security for the residue of” that constitutional office. Wogan, 208 N.Y. at 457 (quotation marks omitted). All other such powers “in like manner may be transferred to other officers,” which would eviscerate the constitutional office and the framers’ intention that it be occupied by an official subject to regular elections. McEwan, 64 How. Pr. at 484. “[T]hus the constitutional provision for a choice by the electors would be completely nullified.” Wogan, 208 N.Y. at 457 (quotation marks omitted). The analysis is the same even where the officer’s duties are not expressly described in the Constitution. For example, although there is no “constitutional provision which describes the powers and duties of a justice of the peace in towns,” this Court has held that office immune from diminution by the legislature. Town of Putnam Valley v. Slutzky, 283 N.Y. 334, 340 (1940); Burby, 155 N.Y. at 276-77 (same). The Court has likewise held that the Constitution forbids transferring the “substantial and essential 20 attribute[s] or part[s] of the office of county clerk,” Wogan, 208 N.Y. at 458-59, even as it has recognized that “the Constitution does not prescribe the duties of any county clerk,” id. at 461. In such cases, a court reviews the historical functions of the office, including as set forth in case-law and statutes, to determine the duties the Constitution protects. See, e.g., Slutzky, 283 N.Y. at 340; Wogan, 208 N.Y. at 458, 461-62; Warner, 2 Denio at 278-81 (Walworth, Ch.). The framers of the current Constitution shared the understanding that where an office was provided for in the Constitution, the Legislature was “prohibited from interfering with the office in any essential respect.” Problems Relating to Home Rule and Local Government, 11 Reports of N.Y. Constitutional Convention Comm. (“Poletti Report”), at 122 (1938). They recognized that the Legislature “may modify or enlarge the powers and duties” of such offices, “but it cannot substantially impair them, as by transfer to another office, nor prescribe a different method of appointment or election than is specified in the Constitution, nor abolish the office.” Id. 21 The framers of the current Constitution further recognized that these principles established parameters for legislation concerning the offices of Attorney General and County District Attorney. Id.; see also Report 14, Temporary State Commission on Constitutional Convention, State Government (“1967 Report”), at 193-94, 199 (1967) (Attorney General and County District Attorneys are constitutional officers subject to rule of Wogan). To be sure, because the County District Attorney is elected at the county level, a county outside New York City could conceivably alter the office by opting for an alternative form of government under the County Home Rule Amendment. See 11 Poletti Report, supra, at 122-23; see also N.Y. Const. art. IX, § 1(h) (current iteration of County Home Rule Amendment); 1967 Report, supra, at 201. But outside of that procedure, the duties of County District Attorneys, and the method for selecting them, may be altered “[o]nly by express provision inserted in the Constitution itself.” 11 Poletti Report, supra, at 123. 22 B. Criminal Prosecution Is an Essential Function of the Offices of County District Attorney and Attorney General. The Constitution “does not specify or allocate the powers of the respective offices” of County District Attorney and Attorney General. Gilmour, 98 N.Y.2d at 130. But historical practice makes it abundantly clear that prosecuting crimes is “an integral and essential part,” Wogan, 208 N.Y. at 455-56, of their offices, and “not a mere incident,” Warner, 2 Denio at 274, thereto. “Through colonial times and until 1796,” the Attorney General had exclusive authority and responsibility for prosecuting crimes in the State. Gilmour, 98 N.Y.2d at 130-31. Since 1796, the Attorney General has shared prosecutorial power with “local prosecuting officers” responsible for distinct geographical districts. Id. at 129 (quotation marks omitted). Those officers, initially called Assistant Attorneys General, were given the title of District Attorney in 1801. Id at 130.8 In 1821, the Constitution recognized 8 See also Karl T.W. Swanson, The Background and Development of the Office of Attorney General in New York State (continued on next page) 23 the offices of County District Attorney and Attorney General. See N.Y. Const. art. IV, §§ 6, 9 (1821). But constitutional recognition did not alter the pre-existing nature and extent of the powers associated with those offices. People ex rel. Gardenier v. Bd. of Supervisors of County of Columbia, 134 N.Y. 1, 5 (1892) (County District Attorneys); Mulroy v. Carey, 58 A.D.2d 207, 212 (4th Dep’t) (Attorney General), aff’d on op. below, 43 N.Y.2d 819 (1977). As this Court observed in 1892, the County District Attorney is responsible for “conduct[ing] all prosecutions for crimes triable in his county” and has had substantially those same duties since 1796. Gardenier, 134 N.Y. at 5. Thus, for example, County Law § 700(1) makes it the “duty of every district attorney to conduct all prosecutions for crimes and offenses cognizable by the courts of the county for which he or she shall have been elected or appointed.” The Attorney General nonetheless “continu[es] to retain a measure of prosecutorial power,” which the Legislature may 161-65 (1954); 2 Charles Z. Lincoln, The Constitutional History of New York 526-31 (1906). 24 activate through particular statutory enactments.9 Gilmour, 98 N.Y.3d at 130; see also Mulroy, 58 A.D.2d at 212 (noting Attorney General’s “latent power . . . to prosecute” and the Legislature’s reliance on that “historical role”). For example, Executive Law § 63 authorizes the Attorney General to assume prosecutorial responsibility for particular cases, including local crimes, at the request of the Governor or the head of a state agency. See Executive Law § 63(2)-(3); Gilmour, 98 N.Y.2d at 131-32 (examining § 63(3)); Matter of Johnson v. Pataki, 91 N.Y.2d 214, 223-25 (1997) (examining § 63(2)). The Legislature has also authorized the Attorney General to prosecute specified categories of crimes. Those include antitrust offenses, see General Business Law § 347; securities frauds, see General Business Law § 358; personal income and corporate tax 9 The Special Prosecutor misreads this observation in claiming that the Attorney General “has not . . . retained any inherent prosecutorial authority by virtue of his or her historic prosecutorial authority.” Resp. Br. at 21; see also id. at 23. Whether the Attorney General requires statutory authorization to prosecute crimes is a separate question from the constitutionality of such authorization. 25 frauds, see Tax Law §§ 691, 1091; certain environmental crimes, see Environmental Conservation Law §§ 71-1933(9)-(10), 71-2105(3)-(4); and criminal violations of the Workers’ Compensation Law and regulations, see Workers’ Compensation Law § 132. Historical practice accordingly shows prosecution to be a core function of the offices of County District Attorney and Attorney General. Indeed, this Court has repeatedly recognized that County District Attorneys have a nondelegable responsibility to exercise the wide-ranging prosecutorial authority reposed in them. This Court has observed that “the essence of a District Attorney’s constitutional, statutory and common-law prosecutorial authority is the ‘discretionary power to determine whom, whether and how to prosecute [a criminal] matter’, the responsibility and accountability for which is not freely transferable to anyone else.” Matter of Haggerty v. Himelein, 89 N.Y.2d 431, 436 (1997) (quoting Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 52 (1983)). And this Court has observed that County District Attorneys’ responsibility and authority “to orchestrate the prosecution of 26 those who violate the criminal laws of this State” includes exercise of the “sole discretion” over whether to bring or pursue charges. Matter of Soares v. Carter, 25 N.Y.3d 1011, 1014 (2015). County District Attorneys would, by definition, cease to have that responsibility and discretion if the Legislature could at will create an appointed officer authorized to initiate, pursue, and discontinue criminal actions without their knowledge and consent. C. The Constitution Intentionally Provides for Elected Rather Than Appointed Prosecutors. The Constitution’s specification that the County District Attorneys and Attorney General must be selected through election represents a conscious choice to provide the people with elected rather than appointed prosecutors.10 Delegates to the Constitutional Convention of 1867, for instance, rejected proposals 10 The Constitution of 1821 provided for the Attorney General to be appointed by the Legislature, and County District Attorneys to be appointed by the County Courts. See N.Y. Const. art. IV, §§ 6, 9 (1821). But both positions have been elected offices since 1846. See N.Y. Const. art. V, § 1 (1846) (election of Attorney General); id. art. X, § 1 (election and removal of County District Attorneys). 27 to amend the Constitution to provide for County District Attorneys and the Attorney General to be appointed by the Governor. See 2 Lincoln, supra, at 348, 350 (County District Attorneys); 1967 Report, supra, at 195 (Attorney General). Similar proposals have been made and rejected numerous times since then. In 1872, a Constitutional Commission was convened at the urging of Governor Hoffman, who sought a constitutional amendment that would permit him, through an appointed Attorney General, “to have supervision over and be responsible for the conduct of all that class of officers, throughout the State, which is charged with the duty of prosecuting for crime and other violations of State laws.” Messages of Governor Hoffman, Annual Message (Jan. 2, 1872), reprinted in Public Papers of John T. Hoffman, Governor of New York, at 310. The Commission recommended amending the Constitution to make the Attorney General an appointee of the Governor, but the Legislature rejected that proposal. 2 Lincoln, supra, at 527; J. Hampden Dougherty, Constitutional History of the State of New York 236 (2d ed. 1915). A proposal to select County District Attorneys by gubernatorial 28 appointment failed to clear even the Commission. See Dougherty, supra, at 237. Proposals to have the Governor appoint the Attorney General were likewise considered by constitutional conventions or commissions in 1894, 1915, and 1919. 1967 Report, supra, at 195. Delegates to the Constitutional Convention of 1915 also considered a proposed constitutional amendment providing for County Sheriffs to be appointed by the Governor and County District Attorneys to be appointed by the Sheriffs. See Documents of the Constitutional Convention of the State of N.Y., Doc. No. 178 (May 12, 1915). All of these proposals failed, as did proposals— made to the Legislature in 1936 and 1937, and to the Constitutional Convention of 1938—to create a State Department of Justice under the direction of an Attorney General appointed by the Governor. 1967 Report, supra, at 195-96; see also Problems Relating to Execu- tive Administration and Powers, 8 Poletti Report, supra, at 113-19. As one court has observed, the framers of the Constitution “may well have feared to give . . . power over the persons of citizens to any one not chosen by them.” McEwan, 64 How. Pr. at 29 483 (discussing the office of County Sheriff). Thus, consistent with “the old principles of English law,” they provided that “[a] power so great . . . should be intrusted only to an officer chosen by the people.” Id. at 482-83; see also People v. Zimmer, 51 N.Y.2d 390, 393-94 (1980) (describing public prosecutor’s “paramount obligation” to the public and corresponding “wide latitude” to act). D. If Read to Invest the Special Prosecutor With Independent Prosecutorial Authority, the Act Would Overstep These Limits. 1. The Act would impermissibly assign core prosecutorial powers to an appointed officer not accountable to a County District Attorney or the Attorney General. A prefatory statement in the Protection of People with Special Needs Act describes the Special Prosecutor as having “concurrent authority with district attorneys to prosecute abuse and neglect crimes,” Ch. 501, § 1, 2012 McKinney’s N.Y. Laws at 1289. But the creation of such an officer would violate the constitutional principle that where the Constitution prescribes the means for filling an office, the Legislature may not assign core functions of that office to a different officer selected by different 30 means. See supra Point I.A. Criminal prosecution is a “substantial and essential attribute,” Wogan, 208 N.Y. at 458-59, of the positions of County District Attorney and Attorney General. See supra Point I.B. The Legislature therefore may not vest the “discretionary power to determine whom, whether and how to prosecute,” Haggerty, 89 N.Y.2d at 436 (quotation marks omitted), in an officer other than a County District Attorney or the Attorney General. There is no real difference between what the Special Prosecutor argues for here and what this Court held to be unconstitutional in Wogan. As the Court explained in that case, the Constitution does not permit legislation creating an appointed officer “who may exercise his [or her] functions in such a way as to exclude” an elected constitutional officer from performing essential duties of his or her office. Wogan, 208 N.Y. at 459. In the present case, the same rule bars legislation creating an appointed prosecutor “who may exercise his [or her] functions in such a way as to exclude,” id., an elected County District Attorney from prosecuting offenses in his or her county. Yet that is exactly what 31 the Protection of People with Special Needs Act would do if read to allow the Special Prosecutor to initiate and conduct prosecutions unilaterally, without being subject to the ultimate authority of— and indeed, without consulting or notifying—an elected County District Attorney. Moreover, making the Special Prosecutor’s authority concurrent with that of County District Attorneys does not solve the problem. This is because when the Special Prosecutor exercises prosecutorial authority, whether in filing charges, or accepting a plea of guilty to lesser charges, or in any other respect, the necessary result is to remove from the County District Attorney and transfer to the Special Prosecutor the authority to decide whether and how that matter should be prosecuted.11 By 11 These constitutional defects are not resolved by the Special Prosecutor’s assertion (Br. at 18) that the Protection of People with Special Needs Act embodies “a reasonable relationship between the end sought to be achieved and the means adopted to achieve it.” Similarly, because the issue here is not whether the Act violates the autonomy of local governments, the Special Prosecutor misplaces her reliance (Br. at 24-25) on the argument (continued on next page) 32 contrast, as noted below, no such problem arises if the Special Prosecutor instead is viewed as providing the State’s constitutionally created prosecutors with additional resources and expertise, and the statute is read to require the Special Prosecutor to act with the consent and authority of such a prosecutor. The Special Prosecutor’s brief identifies no instances where the Legislature has been permitted to create a new prosecuting official independent of the County District Attorneys or the Attorney General. The Special Prosecutor argues that a number of statutes “grant statutory authority to prosecute to . . . entities and persons who are not affiliated with a District Attorney” (Br. at 17), but almost all of the statutes referenced by her (id. at 22) rely on the prosecutorial power of the Attorney General, which also has historic and constitutional roots. For example, the Governor or the head of a state agency may give the Attorney General criminal jurisdiction over particular criminal matters, concurrent with that of County District Attorneys, under Executive Law §63(3). The that the Act complies with the Constitution’s Home Rule provisions, see N.Y. Const. art. IX. 33 Governor may give the Attorney General criminal jurisdiction in place of County District Attorneys under Executive Law § 63(2). And Executive Law § 70-a(2) gives statewide investigative jurisdiction over certain criminal matters to a State Organized Crime Task Force headed by a Deputy Attorney General in Charge appointed jointly by the Attorney General and the Governor; the task force has the authority to prosecute only with the consent of the relevant County District Attorney. In Johnson, discussed at length by the Special Prosecutor (see Resp. Br. at 19, 23-24), the Governor assigned a particular criminal matter to the Attorney General pursuant to Executive Law § 63(2). Johnson shows that the Legislature may empower the Governor to select which of the State’s existing prosecutors should have responsibility for a given criminal matter. See 91 N.Y.2d at 227 (“As permitted by Executive Law § 63(2), the Governor designated the Attorney-General in place of the District Attorney in prosecuting the entire matter, including the exercise of discretion regarding sentence.”). It does not support the Special Prosecutor’s contention that the Legislature has authority to 34 create a new prosecutor appointed by the Governor—nor could it do so consistent with Wogan and the many other cases applying a similar constitutional analysis (see supra Point I.A). County Law § 701(1)—the only statute referenced by the Special Prosecutor that does not involve prosecutions by the Attorney General or a County District Attorney—allows a Supreme Court or County Court to appoint an attorney from the County as a Special District Attorney “[w]henever the district attorney of any county and such assistants as he or she may have shall not be in attendance at a term of any court of record, which he or she is by law required to attend, or are disqualified from acting in a particular case.” County Law § 701(1) (emphasis added). Its sole purpose and effect is to ensure that superior criminal courts are not deprived of the ability to function for want of a prosecuting officer. People v. Lytle, 7 A.D. 553, 555-56, 561-62 (4th Dep’t 1896) (discussing predecessors to County Law § 701(1)). County Law § 701(1) accordingly falls under a different constitutional paradigm from the legislation at issue here. It does not authorize a court or anyone else to make the discretionary 35 decision to displace a County District Attorney, and it does not operate on a class of cases. Rather, it operates only in an individual case when a County District Attorney is in fact absent or disqualified. Id. It is “designed narrowly by its terms and by its purpose to fill emergency gaps” in the authority of a prosecutor who is unable to act. People v. Leahy, 72 N.Y.2d 510, 513 (1988). Unlike the Protection of People with Special Needs Act (under the Special Prosecutor’s reading), “section 701 of the County Law was never intended to permit anything other than transitory relief” in circumstances where “an incumbent District Attorney . . . is prevented by illness, disqualification, or other cause, from carrying out the performance of his normal duties.” Matter of Bd. of Supervisors of Montgomery County v. Aulisi, 62 A.D.2d 644, 648 (3d Dep’t), aff’d on op. below, 46 N.Y.2d 731 (1978). County Law § 701(1) is thus not precedent for reallocating, to an officer other than the Attorney General, the prosecutorial 36 authority in a class of cases when the County District Attorney is able to act.12 2. The Act would violate important public policies protected by the Constitution. As this Court has observed, the “object of a written constitution is to regulate, define and limit the powers of government” by assigning “distinct and independent” authority to three principal branches of government. Burby, 155 N.Y. at 282. In this way, a constitutional system seeks to provide “checks and balances intended to ensure ‘the preservation of liberty itself.’” Saxton v. Carey, 44 N.Y.2d 545, 549 (1978) (quoting Burby, 155 N.Y. at 282). These principles apply equally to the distribution of powers and responsibilities among officers in the same branch. In Burby, for example, the Court concluded that important constitutional 12 Indeed, County Law § 701 was amended in 1991 to allow appointment of a County District Attorney from an adjoining county or another county in the same judicial department to act as a Special District Attorney. See Ch. 560, § 2, 1991 N.Y. Laws 3500, 3501-02. Thus, many appointments under § 701 are now appointments of County District Attorneys. 37 checks would be undermined if a town could reassign particular duties from a locally-elected justice of the peace to a locally-elected police justice; and the Court invalidated the law at issue on that basis. See 155 N.Y. at 281. Similarly, in Raymond, the Court held that the Constitution did not permit replacement of New York City’s local tax assessors with statewide tax commissioners responsible for “precisely the same essential functions,” 37 N.Y. at 430, concluding that this redistribution of responsibilities was inconsistent with the City’s historic right to control its own official functions, id. at 430-31. In this case, the creation of a gubernatorially-appointed prosecutor wholly independent from a County District Attorney or the Attorney General would contravene the distribution of powers the Constitution establishes between the Governor and the elected prosecutorial officials of the State. To be sure, the Constitution’s text does not “identify particular—let alone exclusive— prosecutorial duties or allocate the responsibility” among these offices of Governor, Attorney General, and County District Attorney, instead leaving the “delineation of law enforcement 38 functions . . . to the Legislature.” Johnson, 91 N.Y.2d at 225; see also Resp. Br. at 19. But as the framers of the current Constitution observed, the consistent failure of proposed constitutional amendments seeking to give the Governor supervisory authority over the State’s prosecutors demonstrates the absence “in the Governor of the power of appointment of prosecuting officials.” 8 Poletti Report, supra, at 366. See supra Point I.C. It also shows the popular will against changing the Constitution to create that power. The Constitution’s conscious choice to grant prosecutorial power and responsibility to officials elected separately from the Governor serves crucial public policies. It ensures the check of independent legal judgment before “the awesome power of the State,” People v. Russ, 79 N.Y.2d 173, 179 (1992), is brought to bear against a criminal defendant. See also Zimmer, 51 N.Y.2d at 394 (noting extent of public prosecutors’ ability to affect individuals’ liberty and reputation). That independent judgment provides important protection against the prospect of a criminal prosecution at the sole discretion of the State’s chief executive, 39 and it helps to ensure public confidence in the criminal justice system by guaranteeing that charging decisions are made by officers elected specifically for that purpose and accountable directly to the voting public for their decisions. See, e.g., Haggerty, 89 N.Y.2d at 436; Schumer, 60 N.Y.2d at 52; see also 8 Poletti Report, supra, at 118, 366-67; 1967 Report, supra, at 196-97, 201. The legislation at issue here, in contrast, gives the Special Prosecutor responsibility for prosecuting abuse and neglect in residential facilities operated by various state agencies but at the same time makes the Special Prosecutor a gubernatorially- appointed official. See Executive Law § 552(2)(a). Unsurprisingly, critics of the legislation, when opposing it, expressed concern that this arrangement would create a “lack [of] independence” that would undermine the Special Prosecutor’s ability to help to protect the disabled. See Ken Lovett, Justice Center Bill Done, N.Y. Daily News: The Daily Politics, June 17, 2012. Allowing the Special Prosecutor to exercise the full panoply of prosecutorial authority and 40 discretion without the knowledge and consent of a County District Attorney or the Attorney General exacerbates those concerns. POINT II THE STATUTE MAY BE READ TO CONFER PROSECUTORIAL AUTHORITY ON THE JUSTICE CENTER’S SPECIAL PROSECUTOR SUBJECT TO THE CONSENT OF A COUNTY DISTRICT ATTORNEY The Protection of People with Special Needs Act states that the Special Prosecutor shall have the “duty and power[ ] . . . to investigate and prosecute offenses involving abuse or neglect” as defined in Social Services Law § 488. See Executive Law § 552(2)(a). The Special Prosecutor argues that this language authorizes her to initiate and conduct criminal prosecutions without the consent of a County District Attorney. See Resp. Br. at 16. Defendant takes the same view. See App. Br. at 4 (arguing that the Act creates an unelected prosecutor against whose “caprice” defendants are entitled to the protection of a grand jury). But in light of the constitutional doubts set forth above, the Act need not—and should not—be read as conferring independent 41 prosecutorial powers on the Special Prosecutor. To be sure, the Act’s statement of legislative findings and purpose describes the Special Prosecutor as having “concurrent authority with district attorneys to prosecute abuse and neglect crimes” against vulnerable individuals. See Ch. 501, § 1, 2012 McKinney’s N.Y. Laws at 1289. Yet this is a prefatory statement that “enacts nothing” and “contains no directives.” Thompson v. Wallin, 301 N.Y. 476, 493 (1950). It therefore cannot expand or otherwise alter the meaning of the operative provisions of the Act. See Westchester County Soc’y for Prevention of Cruelty to Animals v. Mengel, 292 N.Y. 121, 126 (1944). The Act’s operative provisions expressly state that “nothing herein shall interfere with the ability of district attorneys at any time to receive complaints, investigate and prosecute any suspected abuse or neglect.” Executive Law § 552(2)(a). Accordingly, the Act’s grant of authority to the Special Prosecutor may and should be construed in harmony with the prosecutorial powers the County District Attorneys already possess. And the authority of County District Attorneys is comprehensive. 42 County Law § 700, which the Protection of People with Special Needs Act did not amend, makes it the “duty of every district attorney to conduct all prosecutions for crimes and offenses cognizable by the courts” of his or her county. Moreover, a central aspect of that overall authority and responsibility includes “sole discretion” over whether to bring or pursue charges. Soares, 25 N.Y.3d at 1014. Yet that sole responsibility and discretion cannot reside in a constitutionally elected County District Attorney if the Protection of People with Special Needs Act is read to give the Special Prosecutor independent power to “initiate, prosecute, and discontinue criminal prosecutions,” People v. Fuller, 57 N.Y.2d 152, 159 (1982) (quotation marks omitted). But construing the statute to allow prosecutions subject to the ultimate authority of a County District Attorney would not present the same problem. Reading the Act to require that the Special Prosecutor proceed with the consent of a County District Attorney also would “avoid doubts concerning [the Act’s] constitutionality.” See Matter of Lorie C., 49 N.Y.2d 161, 171 (1980); see also Rector, Church 43 Wardens & Vestrymen of St. Bartholomew’s Church in City of New York v. Comm. to Preserve St. Bartholomew’s Church, Inc., 84 A.D.2d 309, 315-16 (1st Dep’t 1982) (“It is axiomatic that statutes are to be construed, inter se, so as to avoid constitutional conflict.”). As explained above (see supra Point I), interpreting the Act to give the Special Prosecutor independent prosecutorial authority would be inconsistent with long-standing constitutional principles prohibiting the Legislature from reassigning core functions of constitutional officers. Such a reading should be avoided, if possible. POINT III THE SPECIAL PROSECUTOR MAY IN ANY EVENT CONDUCT NON-FELONY PROSECUTIONS UNDER NON- STATUTORY AUTHORITY DELEGATED BY A COUNTY DISTRICT ATTORNEY Although the Protection of People with Special Needs Act is not a valid grant of independent prosecutorial authority (see supra Points I and II), it is possible that the Special Prosecutor may nonetheless conduct this prosecution pursuant to a non-statutory common law power of certain officers to bring non-felony 44 prosecutions subject to the overall authority of the County District Attorney. This Court has recognized that unelected persons such as the Special Prosecutor may prosecute minor crimes through a delegation of authority from a County District Attorney. County Law § 700, which makes the County District Attorney responsible for all criminal prosecutions, “does not require the District Attorney’s personal presence at every criminal hearing in a county.” People v. Soddano, 86 N.Y.2d 727, 728 (1995). Rather, it contemplates that “the prosecution of petty crimes or offenses may be delegated to subordinates and other public or administrative officers and even to private attorneys.”13 Id. 13 A statute could expressly authorize the Special Prosecutor to prosecute felony offenses under the authority of a County District Attorney or the Attorney General. See, e.g., Judiciary Law § 177-c (requiring County District Attorneys in New York City to provide for appointment to one of their staffs of an Assistant District Attorney to act as a city-wide special narcotics prosecutor). Such a statute could—for instance, by creating a dedicated class of abuse and neglect prosecutors—supplement available resources for the prosecution of those cases without presenting constitutional concerns. (continued on next page) 45 Thus, this Court has affirmed convictions for traffic infractions prosecuted by police officers or local officials. See id. at 727-28 (State Trooper); People v. Czajka, 11 N.Y.2d 253, 254 (1962) (Deputy Town Attorney); People v. DeLeyden, 10 N.Y.2d 293, 294 (1961) (Deputy Sheriff). Likewise, it has affirmed misdemeanor convictions for assault prosecuted by a complaining witness, see People v. Van Sickle, 13 N.Y.2d 61, 62-63 (1963); for disorderly conduct prosecuted by a Village Attorney, see People v. Leombruno, 10 N.Y.2d 900, 901 (1961); and for New York City Sanitary Code violations prosecuted by an Assistant Corporation Counsel, see People v. Schildhaus, 4 N.Y.2d 883, 884 (1958).14 In the absence of such a statute, however, the Special Prosecutor must rely on a category of delegated prosecutorial authority “not found in any statute but authorized by relevant case law,” Matter of People v. Christensen, 77 A.D.3d 174, 189 (2d Dep’t 2010), and that case law encompasses only “petty crimes [and] offenses,” Soddano, 86 N.Y.2d at 728. 14 See also Agriculture & Markets Law § 118(1)-(2) (permitting municipalities to prosecute violations of dog-licensure and similar requirements under Penal Law); General Municipal Law § 374 (allowing traffic and parking violations agencies in Nassau and Suffolk Counties to hire or contract with attorneys to serve as “traffic prosecutors” before those agencies); Village Law (continued on next page) 46 In these situations, the County District Attorney “retain[s] the ultimate, nondelegable responsibility for prosecuting.” Soddano, 86 N.Y.2d at 728. “[A]s the elected representative of the people . . . charged with this responsibility,” the County District Attorney “must carry the responsibility.” Van Sickle, 13 N.Y.2d at 62-63. But the County District Attorney “may allow appearances by public officers or private attorneys so long as [he or she is] kept aware of all the criminal prosecutions in the county.” Soddano, 86 N.Y.2d at 728. That is, in order to allow prosecutions by others, the County District Attorney “must set up a system whereby he knows of all the criminal prosecutions in his county and either appears therein in person or by assistant or consents to appearance on his behalf by other public officers or private attorneys.” Van Sickle, 13 N.Y.2d at 62. It is unclear from the record below whether the conditions set forth in Soddano and Van Sickle have been satisfied in this case, such that the present prosecution may proceed. The record § 20-2006(2-a) (allowing villages in Nassau County to authorize attorneys to prosecute offenses in Village Courts). 47 shows that the Special Prosecutor informed the District Attorney of Tompkins County of her intent to prosecute the case (Ltr. to District Attorney Gwen Wilkinson, supra), but does not reveal the response of the District Attorney. (Cf. A. 11 (defendant’s argument that County District Attorney chose not to pursue criminal charges).) Further factual development of that issue would clarify whether the County District Attorney consented to the prosecution as is required to allow it to go forward under the case- law of this Court. 48 CONCLUSION This Court should hold that the Legislature may not create a prosecutor whose authority is independent from a County District Attorney or the Attorney General, and should remand for further proceedings consistent with that holding. Dated: New York, NY December 22, 2015 BARBARA D. UNDERWOOD Solicitor General ANISHA DASGUPTA Deputy Solicitor General ANDREW W. AMEND Senior Assistant Solicitor General of Counsel Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: _______________________ ANDREW W. AMEND Senior Assistant Solicitor General 120 Broadway, 25th Floor New York, NY 10271 (212) 416-8022 Reproduced on Recycled Paper ADDENDUM TABLE OF CONTENTS PAGE i Excerpts from 2 Charles Z. Lincoln, The Constitutional History of New York (1906) ......................................... ADD1 Excerpts from Documents of the Constitutional Convention of the State of N.Y., Doc. No. 178 (May 12, 1915) ...................................... ADD9 Excerpts from J. Hampden Dougherty, Constitutional History of the State of New York (2d ed. 1915) ................ ADD13 Excerpts from Karl T.W. Swanson, The Background and Development of the Office of Attorney General in New York State (1954) .................... ADD16 Excerpts from Messages of Governor Hoffman, Annual Message (Jan. 2, 1872), reprinted in Public Papers of John T. Hoffman, Governor of New York ................................................................................ ADD21 Excerpts from Problems Relating to Executive Administration and Powers, 8 Reports of N.Y. Constitutional Convention Comm. (1938) ..... ADD23 Excerpts from Problems Relating to Home Rule and Local Government, 11 Reports of N.Y. Constitutional Convention Comm. (1938) ................ ADD35 Excerpts from Report 14, Temporary State Commission on Constitutional Convention, State Government (1967) ............................. ADD40 CONSTITUTIONAL HISTORY NEW YORK FROM 7TE HEGZNNWG OF T1TE COLONEAL P1UOD To TUE VEjR S1OWNG TH ORIGIN, DEVELOPMENT. AND UDLflAL CONSTRUCTION OF THI cONSTITUTION By CHARLES Z. LINCOLN *1’ fix Nsw Your Celis rtO. CY?io op i8, MID vos Six Vi,wi (i3O) CH*IRW,.R OP rli* S7Uimt’ IliVLP1ON Coiuiiso,i *u toAI. Aogius o Covsiixos Maow. 8.ic,c so toDuvE.? iN 1flVE VOLUMES VOL. IL I 822—t 894 TU tAWVERS C).OI’ERATIVI flJn.ISILING COMFANY RocI.s,R N. Y. ADD1 La øi or Co3gr8s, t) Lht udrad six. r ELLth1S . LINOGLN. Omcu or thu L.binrati oC Co 4Freu. ut WqziuIou, J). C. ‘i1i It I N ADD2 Canstit?üiowlt History of New York. into a state, before the Constitution was framed, and more than. a year before the state government was or ganizeci, the Convention, following, in this respect, its custom of adopting institutions with which the people were familiar, appointed Comfort Sands auditor general of the state. He held this office until October, 1781. when he resigned. Elis resignation gave the leg islatni e occasion in 1782, by chapter 21, to establish the ofilce of auditor general of the state, “to settle and adjust the public accounts of this state.” He was appointed by the governor, subject to confirmation by the Cottncil of Ap pointnient. The office was continued until 1797, fIfteen years, when it was abolished, and the office of comp troller created as a substitute for it. The comptroller was chatged with the duties previously performed by the i.uditor. He was also required to draw warrants on the treasurer for all sums payable from the state treasury, zind to “examine and liquidate claims against the state7’ when authorized by law. lie Was tharged with other duties and vested with other powers which have been ubstaiitialIy continued in subsequent statutes, and he is ow the chief financial officer of the state. His selection was transferred to the legislature by the second Consti tulion, and to the people by the constitution of 1846. Under the first Constitution the treasurer was chosen by the legislature, the appointment originating in the sseinbly. By the second Constitution this officer was ,till clio’en by the legislature, but on joint ballot. By ti e third Constitution the office was made ejective by the peopIe For a few years after the English occupation of New York the governor appointed the attorney general, but, hcgirzning about 1700, the appointment was made by the Crown. although the governor occasionally made tern porary appointments to fill vacancies in case of death ADD3 The Coiu1:uiionoJ Cnnssion of 527 until regular appointments could be made by the home government. The first attorney general of the state, Egbert Benson, was appdated by the Constitutional Convention of T77’, together with other officers deemed necessary to establish the new state government. After wards, under the first Constitution, the attorney general was chosen by the Council of Appointment. In the Con vention of i8zz the committee that had this subject in diarge, of which Martin Van J3urerz was chairman, re ported a plan for the appointment of state officers, by which the attorney general wa to be appointed by the governor, subject to confirmation by the senate. The niher state officers were to be chosen by the legislature on joint ballot. Mr. Van ]3uren, explaining the com mittee’s report, said the selection of these officers was vested in the legislature because they were “officers in— trusted with the public property, whose duties more im mediately connected them with that body.” While the plan was pending the attorney general was added to those to be chosen by the Tegislati.ire, but not without some opposition. Among others, Chancellor ICeut supported the origmal plan of the committee, saying that the at torney general was an executive officer, and his aipoint merit should emanate from the executive department. Here was good authority for the opirnon entertained by seval prominent delegates in the convention of r86, md by Governor Hoffma3l in t372, that the attorney ieral should be appornted by the governor; btit a lerent policy has prevailed in colony and state almost -ithout interruption for more than two centuries, and it is not probable now that the people will consent to re hinquisli the right to choose the attorney general. His duties, and ieporisibi1ities have beri materially nlarged, and his official obligations reach beyond the executive department His functions are uot all execu ADD4 528 Cansti1utkea1 Histoiy of Wew York. tive administrative, or ministerial. They art in many cases judiciaL He is the legal adviser of numerous de partinerits, and is the general law officer of the state. If Governor Hoffman’s plan to concentrate in the gov ernor all executive or administrative atithoritv and responsibility were to be adopted there would be force in hIs suggestion that the attorney general should be cx dusIvely subject to his appointment and removal. ‘flie 1tdminstrative powers of our government, however, have not been so concentrated, but have been divided and distributed among several officers, of which the governor is the chief; and the fact that these executive powers are so distributed does not militate against a popular elec tion. The attorney general has not been, and clearly should not be, a mere creature of the governor. Ir the preceding chapter 1 have quoted from the debate on both sides of this question in the convention of 867, and need not here repeat any of those arguments. While the governor in the colonial clays occasionally ex perienced some annoyance from the fact that the attor ney general was personally obnoxious to him, which ex perience has doubtless bacit sometimes repeated under the state government, the proper administration of public affairs has probably not been seriously impaired by this occasional condition. Besides, at least in recent years. the governor has availed himself of the opportunity afforded by law to employ counsel, and such counsel has acted as his confidential adviser; and so, whatever dif ferences may have existed between the governor and at torney general, arising from lack of political harmony, he governor has been able to administer his oflce and obtain needed legal advice. In !796 the legislature created the office of assistant attorney general, and provided for the appointment of seven of these officers, who were assigned to districts es- ADD5 j’he Co siitajr,qui Con ssii of ,87,. 5) iblishecl by the act. These tssistanti vcre charged with the duty of attending the criminal courts and con 4lucting criminal prosecutions, eccept in the county of New York. where similar duties were to be performed by the attorney general. In z8ox the oflice of district at torney was created, and seven districts were established cubstantially on the plan of the act of mj6, creating the office of assistant attomney general. A. district attorney was to be appointed for each district, which included everal counties, and the ditties imposed on this officer were the same as those imposed on the assistant attorney enera1 by the former act. The attorney general was still required to attend to criminal matters in the county of New York. Other districts were created by later saLuLes, and in 1815 the cotinty of New York was made a separate district. With this e’cception the state con inued to be divided into districts composed of everai ounties, with a district attorney appointed in each dis tmict, until iSt3, when a statute was passed providing for he appointment of a listrict attorney in each county. flic district attorney was required to be a lawyer and .vas charged with the same duties which had been im posed on the assistant attorney general by the act of 1796. The territorial jurisdiction of the district attor ey was reduced, but ti’e official title was not changed, and each county was and still is deemed a district for this purpose. ALL of these officers the attorney izen— cral, the assistant attorney general, and the ‘jisti ict at— t(3rney receved their appointment Erom the ‘iaine source; naniely, the governor and Council of Appoint ment, untd the constitution of T8, when the power of ippomtmeni of the district attorney was vested in the ounty court. This method of appointment continued until the Constitution of T846, which provided that dis ThL IL Comsr. Hn—14. ADD6 530 Cou.tiIuiiowd HLaory of New York. trict attorneys should be chosen by the electors of the respective counties. The supreme court in FeUow v lV4rw York, 8 Hun, 484 Cx 876) held that the office of district attorney was a state office, and a part of the state judicial system. The public officers law (8ga) defines a local officer as one “elected by the electors of a portion only of the state.” This clearly includes the district attorney, but notwith standing this definition he must still be deemed a part of the judicial system of the state, and therefore, in a general sense, a state officer. The definition in the pub lic officers law shoul4 doubtless, be limited to its ap parent purpose of classifying certain officers as distin guished from others designated as state officers, and the definition need not be construed as an attempt to define the stattts of the district attorney u his relation to other parts of the judicial system. The evolution of the office from that of the attorney general, whose place he takes and whose functions he performs in the county, shows that, although the method o selection has been changed from state to local authority, the inherent quality of the ollice has not been changed, and it may still be classed among state officers, eccept with tefer ence to the method of choosing an incumbent. The leg islative intent on tliis subject is further manifest from the executive lav (1892) which makes it the duty of the attorney general, whemver required by the governor, to attend any court of oyer and terminer, appear before the grand jury and take charge of a criminal prosecution &hcn pending; and while so attending for this purpose he shall exercise all the powers con terred on the distnct attorney, and that officer becomes subordinate to the attorney general in such a case, and iuibject to his di rection I have already quoted Governor Hoffman’s suggestion ADD7 The Co,stitutiona onuni.r.son of Z872. 31 that district attorneys ought to be deputes of the attor ney general, and appointed by him or by the governor, and it appears from the foregoing sketch that, except for i short time, hi the early history of the colony3 neither the attorney general nor the district attorney has heen appointed by the governor, but has been chosen by ifl dependent authority. Governor Noffman’s suggestion is less pertment since the enactment of the exccuth’e Law, tinder which the governor, in the exercise of his consti tutional duty to “take care that the laws are faithfully executed.” is expressly clothed with all the authority of the state, and may require its chief law officer to assume the management of any criminal procce(hng in any county. Tints, although the attorney general and (listnct attorney are chosen by the people, they are lirecmy or indirectly subject to the direction of the governor, especially itt the cases mentioned by Governor Hoffman. The office of commissary general was created in i8i. In the Convention of i&x the committee on the appoint-. merit of officers, to which I have already rferred, in- chided the commissary general in the list of officers to be chosen by Lhe legisbture. While the report of the t:oniinittee was under consideration, Peter A. Jay moved to strike out £commissary general,” on the ground that he was a military officer; but General Root opposed the i,,otion. saying that “those who have the custody of pub lic property and the disbursement tf ptUijtC moneys irtuid he appomtcrl by, inch irrwnahie to. the legislature.’ it will he ‘,bserved that this wis tile i eason itlready as— .Jgiied by Mr. Van i.uren tr the proposed section re ).ut:rlg to the method of cho sing state officers. ‘d r. Tay’s motion was lost. Under the third Constitution, $.6. the commissary general was appointed by the 140v- ct-nor and senate. and since the adoptiomi of the fourth LonstjWtion ( !g4) he has been appointed by the gov— ci nor. ADD8 STATE OP NEW YORK 1’Io. ITh tnt. 118 IN CONVENTION 12, 1915 I,tpdd by M L. M. WL’1N * (by rqiwL * vend twice nd rerred the ( ninhe n. Twn and Viflaa, t wir ()vnn$za.ticn. (yimnt ete, PROPOSED CONSI’ITIITTONAL AMENDMENT To amend sections one and two of article ten of the constitut1on in relation to cozzntiei and towua, their orgnnlzation. govern ment and omcers T D1eq&s of the Peopk of (k itafe of Yew York. in ascmh!ed, do propose as foflows.: 1 RTTULE X. 2 tShvriff, ‘krLs f ountie. district Ltorvn and i’citer 3 governor way remove. ‘cction L SherWa dorks v eonnties 4 tybi tt iav nod t istera n coontica ant t’ giter. haI1 5 1a boeen by the etc rs of the pectvc omrtiea oiae in every three cram and ae finn as vaenncie dtall happen. ewrpt hi the 7 o ties of New York and Kings, sntt in mnttea whose bonuderics are the same as those of a etv where n*h jjp 9 shall be ehoeu by the electors once hi every two or four years as tq the I islature shall direct. Sharitla shall hold no other office and j be ineligible for the nest term aftcr the terehination af their ADD9 L ith(44. I!it i)ij Ii, II’.IiI tc’’l I. iV L i.ns’v hei i’ 4riTirit, (runt 3 hHIP iIIW in •i iiiI ..t iVHif thu 1t”.V ,1Ut1Y. tht’ir :1 I I I .‘ l’fm4’d ai i n t. fli t hr oiin n t ‘. •hLl I I nvrr I ur’ in i4’41iihVjbIP i rh. t.ti4 if tht •h*riiT. iii iwr’rn.w tii.ev rnti. any utiierr. in hi —‘ii n it I nr4. t it Ii hi. Ii rw ‘r w hui d ii. .Iijll h.ivr’ 1u,n ult’rtiil .ivintX t4 ii. h tii.’i’r .i ‘.p ,.f, hint li.tttt 8t.!;itilui liitii. .Iflit ;ILI .t4I1.irthhTitt it I 4 42 III. liii 4 4 4j’tr’Wi. • 4 ppuiinthnt’nt r 44t).ih) “t tIlrI, n’uI iri,. tili 41 tIr I)i I lit ti tII i. in. . .t II ‘iii td V . l1ti,Prq thr”t’ phrt it t r appoint— tin ii ii nut p r ivi iled 1’ r hi— ‘“n 41 it in. .Ini H hi u Ir’r’te4 1w l t. rut f tln• rv.ip.ti vr’ in cut • r .t ppni ntttd I ho h4ttt rf14 j .j n ut’r .m, ir qth(ir r’ JWI tv tilt Iioi’ I n:4 t rlw Ic”i ii attire hai I •flr•, \Il itv. InwO nil ilhtott ,,Hiir’rut, vIirie i’Ir’uti,jn •r . pu.iflunh.nt mit pruvidid (r h ihut •nimtittiti.,n. 4 all h ulpittil liv I Iii’ ,‘Iiirut it 4W II i’it H’.. I ‘uW nut a itil iii hi t’ut. •r . .. .1; ‘m hi rI9uf. •lt ,i Iiu.lIiLiuif Ii’. ,ii.’Ii tiLit}1uirih’t ihi’rriii, :i ilnt I t I . h ‘ill .i ti r h,i t ill rJ’i’4r’, I t 1 ‘r •‘ 4Fut. vhu. e 4. ;iputi9itTfl1.t4t i ‘t *1 t•r I’’ nil ii! )it’tr4. r it’ it I trrc.l tt(t p urø;itc’. I h’ hi 3h,t 11 44 t,’ he h4 1 1. r P!’ ii bit 4,4 l t 1w i’ j..I cii rt. n .t v ) et.] 1. 11 •tut1I •in’H/. ti j’.r ilsllz.!ra#?r’’uulrp. .ut I 4 jf4,1 , *‘i.Ii ii’j •iii,ili. •1,;I ‘att,inu’/. 1 1’ ‘nut— )5 1hi flhQi 4Pft flPi” ‘iiufltii’,’4, , ,dd ru1I.1J. uf’ 1’ Jr II I ‘r’ ‘1 tII ‘ H41uII/. •t ‘t ;w’irei 1 ADD10 S from t atnrt ikan tic a n,rmbeas as peorutr at ¼ lnss a’pj.otnted or i )ber A akrfrat 4) itisde ) Ike 4teIt%W k’LtI 40 aIr aitit the repn”wal4&re4 if a/ide c14— a rflaflt I ‘hardy tint! 411,11! 4, cpp.nskd ¼ liar qiWernar rtinftrin nt lit a ha h Jilt’ i.tflaf/a’ (1 1 tnn uk/n I tj !Ita fit t’flWt’ cI hoc plensarn I In’ U,,. , Sn raif ,‘.ctQ appanci i chs!rt r! a! (O 11(1/ 11 1117 *114411 fault! nfk. a ‘a! ll) 1114 lb. plenwur ag it £ i/tn i/f flat Jo nfl anal? lie p tut rec4 to $ hnt 5th’, ily mon Putt h. hint’ if sit nSa ‘an .oai f <5, 47 ‘at 9 rapisasada fist Ike pats q tint *4. psnt to in n 4 oa,sJ fhr knit It 1 a hat iii inpnssafr.f n ft cart q ted by ii t anatig anainqea a t / a rentnaq • tan ‘a ta,nlwr , a cninh, amp n final, r .ini,, nail Jar a ‘naidaj tied at ngtalrt a ra.nUa/ 13 tettisutot nil sIiek tsiker raiwlq titai.tts tnt and//lit aiiriittd ha tin the r 14 •gnt,.høsant<* h% tad 4 3 I on as a/vat! ¼ ma innS of pne;dr an act oath ci ibid thwaj a an t Jilt:!, j.rttrfl. atilq at a nnaai u.n aicp tat/k abc asian diatindi i t bnsr#es I 17 oat.! sor’ci life ataiti fraactahmes oh we jR flsastuaaq faa. at* .j, a anta#iia’d, bid Ike kuçavlaaiaarr uwia, prot ada at, aj haj atyc ay tat nn uo< an*uk rhanup s sac skatli anacnSe for taut a ante £ IrIS 20 uII$, 44 (Pat4 mania’ at ta4l to alkait! hi ion it inisacasu 1h Nw rk .jrar fm t ADD33 Exacwrwa sr1i*rxor.4sm Powrn 367 (3) The proposa’ is hsroncaliy unsound, because the county is the historical unit of govcrwnenr, it being the succe5sor of the AngloSaxon shire, the peace ofttcer af %vhith, the shire-reeve, is the predecessor of our modern sheriff. (4) The proposal is humanly impractical because of the large volume of work now carried an by the .Attorney-General, 9 per cent of which is civil in nature. (5) Centralization tends toward bureaucracy and away from a virile democracy. Mr. Bcttzuan expresses this argument as follows: “The nearer government is to the governed, the more it can be watched and the more searching is the liit of truth. Removal of authority to the state capital is no guarantee of higher ability nor higher purpose nor less politics.” (ibid., p. 166.) (6) It has also been urged that local electorates are more familiar with local conditions than an appointing agency located else where. Summary The foregoing presentation of the avaihibl material in connection with a State Department of Justice indicates that there is some dk’ satisfaction with the current system of decentralized la enforeeroent agencies. Although the proposals which have been made dir among themselves, their advocates feel that ancient county boundaries of pro cution must be eradicated and a State-wide organization established for the enforcement of the criminal law. Unification of the administration of the criminal law in New York does not necessarily involve a change from the present system or the popular election of local prosecutors. On the uther hand, it is urged, that as a practical matter, it is impossible to subject county prosecurs to effective coordination by State authority14$ .iistinguished from nominal or occasional supervision, under a system where each county prosecutor i locally electtd. Appointment at the Attorney-General by the Governor is generally -egarded as an integral part of the proposal. It s said that the popular election at an Attorney-General, who assumes a subordinate place upon be ticket, is ordinarily dependent upon the election of the Governor1 the principal candidate. It is also argued that appointment of the Attorney-General by the Governor would vest in him not anly the responsibility for law enforcement but also thc power to discharge that responsibility. ADD34 TO TUE DELEGATES TO THE NEW YORK STATE CONSTITUTIONAL CONVENTION OF 1938: Governor Herbert a Lehman appointed the New York State Constkutiou1 Convention Committee to coflate factual dtta for thu use of the de]egates to the Cozwention. In accordance with the duty a imposed, this volume is respectfu]ly suhmitted. Charles Poletti, Chairmam MEMBERS OF COMMITTEE WmruRoP W. Ait*uca Wrn J Kaw.w Joan J. BENlcnTr, Ja. Faiwaxs IX MoCunr IL Bom GEoo ?Lwi Joszi’E M. CAt.tAsUr Gioso a M.EDAUE WELLtAM P. Os FRANK C). MOORE WnLxA C. CAiLzR Wnu J. 0 Sim. JR. FtoK FL Ca& PrRtzr A. Prrca DAVID DTA!vOD CRAat1Pota’i’ri Joim J. Dtio Jusr Wsit Poiza IIENET ErEzi ANNA M Eoi 1ontus L. Ei.ww LioNiat S. SAm J&tra A. Fot J0EN GODR$E Si Enwo S. ?osiza Cax B. Sraa GlrolwE IL rl4wi Ja. Fnmcz M. Snn.& Oswiz.D D. IDxuc Owca J. Sm&a ELINoa iL 1Izuc IRwul aaur CnLnx EVANS Huo, Ja. Uwar L. SmtsoN ftvrna M. Ivs Gin Swoa JAconefl’ Tnotis D. TaBmt Jon B. JOaNSTON LOTJs WALDm DANaL J. KxiLF!cIz WALrn Wmrz ADD35 Th PROBLEMS RELATING TO HOME RULE AND LOCAL GOVERNMENT SW YORK STATE ‘ONSTITUTIONAL CONVENTION cOMMITTEE 938 ADD36 NW YORK STAlE LISRARY ALBANY ALBANy , LYON COMPAN’Y PIWTh3 ADD37 122 CONMuTUIONAZ. CoNvs’rxoN ow 1938 vision of the Constitntion by Its limitation with regard to the selection of local officers should be removed. It is not the purpose of this report to recommend on that question, but merely to mdi cate what the existhg restraints are and wherein constitutional revisin or amendment may be made to remove them. The County home Rule Amendment insiree their removal by permissive legisla tion possible within the very narrow sphere of its operatioil, as explained abcive. To eliminate any doubt as to the constitu. tionality of extending the permissive principle by mere legislative enactment to the many local units continuing unaffected by that amendment, it has been suggested that the Constitution be further revised or amended so as to authorize legislation transferring local functions with regard to any local units where this might be deemed advisahie, subject to the adoption or approval of such legislation by the unit concerned. Or, should the compulsory transfer of certain functions, such as tax assessment and coUec tion, or public health, appear desirable, it has similarly been proposed that concrete authorizatiou to that effect be udded to the ConstitutIon The Status of Constitutional Ofilcers Many local officers, particularly of the county, are specifically required by the Constitution itself. The effect of such require ment is that the Legislature is prohibited from interfering with the oce in any essential respect. It may modify or enlarge the rowers and duties, but it cannot substantially impair them, as by transfer to another office, nor prescribe a different method of appointment or election than is specified in the Contitution, nor abolish the offiee.2 Constitutional officers, then., not only enjoy as “xtcnsive protection against transfer of their functions as do statutory local officers under the home rule provision, but are m addition protected against abolition of their office—except as may be otherwise expressly provided by the Constitution hi a few instances. Prior to the adoptirna of the County Rome Rule Amendment in 1335, the county board of supervisors, county clerk, district attor Popie es rei. Wsn V. R.afferiy (1913) 208 N. Y. 401; WeMier V. !‘pi ]S45) S Denia 72; ?opl8 rL Ptieon v Prdegs.st (1910) 73 App D)v. 018; Paopl se v ffowland 119?) 7 App. Div. UD8) 15 N. . 270, MU of Grium v. Rd. f pervors US8) 1t N. Y. ]70; Pcop c id. Ha1,w.9 V. Lw (1O0O 63 App. Div. 551 ADD38 !IosiN RULE AWE) I.o0At GOVINMaNr iaey-, sheriff, reglster, if any-, county judge, and surrogate—subject to the proviso that the duties of the last two ofileers might be discharged by the same person—were constitutionafly protected oeers?’ The office of town justice of the peace is likewise a constitatianal one. Judges of the Court of Gezaexal Sesaious of New York county and justices of City Court of New York City are similarly estab1isled by the Constitution. Since the adoption of the County Home Rule Amendment, a board of supervisors is no longer required in a county, but the Legislature is recinirut to provide such form of elective legislative body as it may choose.’ tn addition, the new farm of government for a county which the legislature is required to srovide, and which any county may adopt by majority vote as prescribed, may not only provide for the appointment or election of any county oicers, but may entirely abolish their offices. As previously indi cated1 transfer of functions to or from the county is also author ized, and the abolition of offices all of whose functions have been transferred, without regard to ‘auy other provisions of this Constitution wconsisteut herewith. “ Thus, protections surround iug constitntional offices no longer operate with regard to a form of government adopted under the. County Home Rule Amendment. In a county proceeding under the amendment, therefore, the police functions of a sheriff, which form a substantial portion of the duties of this constitutional officer, could be transferred to the State police; or the oflce could be made appointive, or abolished entirely; or any other desired change in eonneetion with any existing constitutional office could be effected. Outside of such counties, however, the old constitutional pro tections still apply. They could not be overcome by means of permissive legislation in the case of eanstitutional offices) as dis tinguished from merely statutory offices under the protection of the home rule provision, because n the former ease the Con atitution is not simply conferring a right with regard to the c’iThe but imposing a requirement. Only by express provision mserted in the Constitution itself could any desired changes ha the status of these officers be satisfactorily provided.” Y, Const, art. LII, t’.CL. 6, art X, . I; aI.. VII L U. 2) Thid., art.. vr, ac. 17. G N. Y. Coost., art. VI, 14. 1. ‘ Tii, art. ui; aec. 20, ulcL 1. UicZ, art. III, aco. 20, anbt. 2. Meniorandum prepared by Audrey ‘t 1) Lvka of the Ioetftate Pu1ili rntntri.tion. ADD39 — — — — — Cl, Pr’ ‘I cL c n ç ADD40 I THE ATTORNEY GENERAL 1 he Lcinstgution no’ j ovde tur iJuce nthccs wtth sptc rcsponsibthr br the Lcgal sniccs zuid law enkrnccrnertt pob of the stale wd 1, s bira I sit hdi isIorts the A) tomes (rnera I. distrwt attorneys and tue coumnv dwritfs. The duties ol these ct!) are specified not in the (;onstiiutiolt but in statutory ldw. I Inw because these othces aie referred to in the (onsütuion. legñid may nor abrogate what has been deemed to be their essenLl4l I tions. En addition to the Atromnes General, the district attorr and the county sheriffc, various state dud local agencies not ret to in ihe Constitution also provide legal services and participatt law enforcement. these agencies include the Counsel to the 1- emnor, the State (.onsmtssion of Investigations, county attornes Scare Police and various county and local police forces. This chapter describes the present constitutional and stau previsions relating tn the ttornev General, the district attcn and the county sheritFc; describes their history, and analvies ri. Lernatives [or constitutonaI revision. ADD41 1. TUE ITTORNEY GENEILIL A. COMSIITUT!OIeAL PtOV)SION I he .Pi’H nev ;ni a) ic of Jour ce otis e 4l( en iv 1xupuLur nie flfl .1 siatc-s ttic h:i’4is. I lie otlwr’i .ire the Cuuinp. ii Icr. t I .‘uten.ent (;vrrnu;r ,i nil, of ti uurse, I he C u ,ernr .tt (Eu V, St tinti I. ni the (‘inst iltitson pins ,de thtt i he \i tin nev nea a1 ‘h.tlI he net ,‘4 4( 5 he (fl(,() (‘!f’( (I4J) kS I lie (.iWITfl()r .ir,d th.g ?ir shall he the twnI of the ‘i hpart silent ol bw” )ther cont,iULIcnU) nlrreni es 14) the uilI,t e :u e founil in A, S it le I. sect soil 6. hi h pr 1t14’S (lit stilt by t II t tot 11ev C.t’iietaL ii it tints t’ it turn i i public ufftcrr ss Iii,, ii sic let cci tat fl i Ut U tnsisi t cc, ef uses UI S L’%I t lv IWII H ( ‘I t,iinI Jill 5’ III iii,t,uI II) 441114 iii IEli%ltHidhl( 1 IT) i1l1 It \F/. Si’c on ht ii pruisscluc (or nmue to the \t(mnt (.enriI 111 a suit liv t to ii utE,lfl pjS,nLiit of t,iit It1O1W thtIIJL .IUdI( bs the iptrnller. uid in .\tttc le (I’i. ‘w rum 1, whit Is pins icks that inn. iwtiotial ,ncncl,ne,tt, pi oj usu ,I in t he I iusLI nrc shaH hr refri ti I .1 nw .1ws nrv (.i neral tot un pinion us lii the i urn if in ii iTIcn(IIncnt n (infl •n (icr provisiunit ii the ( ifl’IIJ list ion VhiIe the ilht of Ilit’ I(OV11V (t’neirii is I rr’atvii by I he *lttI1)itIt)fl .11 II) untieprntlerii nlhct’, the nnguuiinnal 10% fit nit c’prt.”idv u ! line ill ‘‘I hr jss’er itni Isitic liorsi cd I (IC 4 lrt,iIfliflltil,tt ..L ih 54 uupe 01 tlir’e jiossc is :sinl (tint 111)11% 15 oti)e ii ‘it omplita I LII liv the fa4 t s haL u ithrr cOflsl itO ritinl 4 IIIILCS. lv the .iivcrnnr titul Ihe dtsrnic t )Z10Tn(’Y, P$%c5i nnFN)rtflt iiid, Ii HHC li’5(iii 15, ii ft It’d C’H lore rITWItI fitcttti, \ttitir IV. etlon I iitosnles that eru(tse nosier sh.ft he ‘it n Itc ( .nsrrnor 11141 \t I tilt’ IV ‘t ii lOll I 111I)1151 I h,it (IC o ill ‘t tk i :1” ii) Ii the las s tic’ Ltsihhiflv u tt itird.” \l iii Ic ‘ 111. 11411) I . ri ue!i Ioi usc’ eh’c ttnn of ulistit 4! Iti14’SS U ci slit i iht’ ii c 14,15 iii t’ Iipctiisi cHrlttc’,. I l’e I ,isl,ui,uuc’, ouuh_r i h lllt’st’tIt nnsluiiiritui;ul is ninc ii urn! 1(11) tilt III I 3%C tfl I Iii. Yt’a%e the nss tic iuj I he \i tot nev t.t nrrl, I Insrvr’r, u try h’ishuttvu’ c punston ef he p ising ub I cads of t 1w sldtr dcf)31 tnwrns on mattes uw iiial. i is tonitet non. utfictu lishirig Ioam ions r Rt_nctrt iii! it IOI ni,tl Oj ti 111011 tO iflhitlic 9) I hi ics on •lici in oIiiig nitittIc ptl ,tttti cit tic H ivsint tit f=cnernoi on r ,scci kgislai Inn whidi been passed by 1w Legistat urt aini is beiore thi’ (cn, for eecuttve .uc lion, ) Preparing rontrac is for the (.oanptrol!i. h) Publishing hot on th Code of Eths futit public ofhrei dditioi, ui orut v C, oct ha’s ii on pec’ial ft lion S tpelsetIlnu a ii. tic t t t.toi i i iii (.,os rnoi ‘s req iii ci iniuitaf prricredtti I tn’estigatin intl pinsec unit • at the r quest of C Ci iii departments ‘. i l,ion. of the liw administered Iv ‘.uc) departments Procecurm’’ pci sons ; ho bribe niemhei s of the LegisLirut ADD43 or !eçibtnnelerr.S Inveuiatirir, c the tequest of he (.iernir. my nuen i oncerfling he publu ;*‘c’, public dctv nd public utic C. HISTORY I he tillite vii tl(irnev (inriji ;vi.i .11ip,nhivr tlu:ing the v;lofli2l periud. t.rt by the (,v,t:nor .uid later fr (lie Crown. [he lirt .Ltornev (enrtiI ni the tre wa appointed by the COn-itiLu tiviflal c:otIve.iIgllI If 3777. .fterwaid. ii,itil 11421. hi. office was filled liv the t:i,idl til ppuiriiInrnt. t the second coI1sLifuUoflI con. ‘riitirin in l?421. ilie Cuundi vif •ppoIntzIIetIt wjt :Il.Nthbtd and .i ‘tan was inuoduced liv he (omnircee ‘rn ctde Oullcen to have ihe lrcirney (.cnrral appointtil by the Goerntir s Itfi the cvjtiwflt of the ‘wHale.. [he Cunienimn rejected rhit plan and provided L[I4L the tiornev Grneral (like llIOI other state exec1i1i4e •i&ei) 4hould be hiostn by the I. giahuure.” In i he I t416 Cons*Üiniuni1 (i)flvCfltiofl. t h S.IaIIding (4ifl- liner in: %t;IIr i )thcer rrporlect in savor of LICCL on of the .unrney (;cnerjl iw the icopIe. 11% rrv linmenlbi ion w.is .ucepwd by the .vbaivCrtlJnfl .iiiit iiuorporattil mm the Constitution. fliere ssas teb. ii nv liii Ir cit hie ‘iii 11115 1 Iiatite, In the •ifue Convention. the CcitnperllIlrr. Se,etatv ot itr. Iirasiirei- anti Siirvcvnr were .4110 matte elective. the C i7nventinn of tn amendment wa proposed pm. tdintg fiw the ;*ppoirnmenr of the AIKInICF (;rner1 by th Gwcrnor with the oinbrmaLiiin of the ‘eflatt?. .5ft4T lvfllSuIL’rahie ilehate. the .wlernlmena was defeated. 1 he proposed I Si17 ( ms:it!inon was, its Ill! t.ase. injected at the Ii 11472, a special committee a,stablishrvf by Covernor I-loft. mail cetum,rirncjttd that the .\tt’irnrv ( nez.,) he :tppnirued by the (;O%L’mnOr. hi vs r imi,intend;ition, hiiwrser, ‘ .i iv.zC .1 tprovrd liv the I .CL%J,tlIIIC lvii itl,ittssci tO fit’ ;;ciph’. f i’lt (.in4’ntlon. in ivitnclrncui ii ure,vicle lir .I1J• vilII?flcI1 tL li. .‘tt)iTit’v I .ctier:il ‘v;Is .cf;virl IvII”.t’II hut ih’rc’ cr;lii lit III.’ 14LIS%L(Jfl .0111 i 1% .15 I1)t .iih.1itecl lii I 31U I) 3 •; (:.,1B t’fl(iotl. v ie (.tninulttve on t_.over ri’vr mci ( )ther tite I htei .5 IILI hut make .1 ,_ OIIIOICTkIJI t iii Ill I 111.5 I5%11c. .il I ridis Icitiji clriv’te subrniLued ill .v itiriitfnttiit Li) I IIC IflIiIl ii i lie ( )tIVIt1tiOi1 WhIt ii idt..1 br ihe .i!ILX)Ifltfl1lflL iii I fTC .ttOI lWv L.t’neral btit I his w.is lqec-Lc41 h (:nnn. ii ‘•I 39, -i (.4 .s irnc ltiith tf( flfl ADD44 mended that the Attorney General be appo but this recommendation was again rejected I l96 and 1937, amendsnems were i posing the creatwn of a State Department tion of the Attorney General, to be appol These amendments died in committee. In W again made, this time to the Constitutional Cotr a State Deparunent of justice and to provide f of the Attorne’ General and the county was rejected by the Convention, In New York and in 41 other states, the At elected. The United States 4ttorney General t: - erals of I other states’ are appointed by the c) the advice and consent of the upper house of t %tate the governor’s appointment mnnL be c houses of the legvdature and in another s’” il. The leislatuft of one state appoints O CONSITTUTIONAL. ISSUES I. Should the Attorney General be appointive or elective? Since New York’s Aorney General i - pends upon the people’s favor and not i Candidates for Attoni General stand for as cann’’ es for (.rnernor. If the Governor s -‘r the nomination and election of ‘ CXtL tF tL - - -- itat L eer, the Attorney a vote - Lonsequendy be Ireer i - t his ow i Governor and - -) which has har’’ tbc to of to a 4rments offered in favor of the t-1ciiv system: The electhe method, it has the past. After careful scrutiny, this chosen over an appoinctve svtetn by iion of 1867, the Canvenrton of ZqI. the i the Legislature on numerous occa ions. The present electhe ss tern, ,t v ii Attorney General with his important leg4l functions sponsible to the people. The large voting turnout in in ADD45 \it, )it’ I .‘ I II 4. •l 1.4 ‘.I*,,*v j,.,t tifl’ I I,( *e’l,lIe i k t4I 4)1)4’) 1*11 3)4 44444 I) 48,4)4 ‘41 1144% 4h. (•.‘‘ I hI’ 4,’, )H;H .44 1,r ‘ C .4))’ 14, ,( 7’, .41%.) ,447)i*1I, w)%r.. ,‘, . ,)2’,)))’ “4 le,IH” 4448’ li4 I UlIah (4)11141 Iw 4.48))) )l)l,,IL4l In iI*r *1*.’ 1...i l,*i \n l4,dI**’ (.‘flt’i ,l .44J4431114’tI h4 II))’ I ,.. .1 44.8* ‘4.4. 441% 41 44.4’ ‘9*4’)) 44% 1 .i’ti’t II ‘‘4’4!’ ‘l,,1))41I s**li’.i ii fl!’) 1,44,4444 *9.4 I I)t..14 4)44 4)1 I)44(’I% 4 444)444. 4’.4 Ill dlv. • 4)II4.4ll/!’ 1*3.8444, ,l ,II)1184** 4)4 441 3444’ 4 .48’.( I 4)41) ‘. II.Illd’,. I..), ‘3* 1t’4 ‘‘ I t4* 4’. ‘4 ‘‘1 •i)*, ‘*!‘*(l, 4’ ‘4%I* ‘*1’ I ‘‘.i’ 4’ II) I 44 444’ ili,ii I 444.’ 4(4 4(84 343 ‘9 (.,‘lII’t .11 4)4’ 34 I 94 8)8)48,44 I ‘‘ 444 (,*8’ 44334)8 444414 *4.14 448% 1’, 4418’ IIII’4 4)44 IIIIHI 4,! ‘Il4*I)L11)L LI))’ ‘43 4’’) 4’’ 1**tIitt r.4143I17* 43)8) *4 4)I,i,4I,*f(’ 4’* . .Lt’ I i h • 44 I (lit 4% 1 \4 41)1141, , 4 444* (‘I II I’. 44*. 4,44)4*81)) I)’. 1444 443 4 444’ 14144 8 4.4311411,ItL’4l ‘‘‘,4< IL) *48’ 44444)1 t4’4, IL L’ ‘ (‘*444 )44’I 14 4411* 444’ ‘4*443 1 I ) II *78)4.’ I 1)4’ I1(’,441’. .4! I,s’ 4 II 4 ‘,4 4 4(43% 4’ lIt .H t3Ii4’lll%, 414* 144(11)144 1144’ 1>) 4)1) II)I)’IL( III I , ‘) 4 •l, h4’ .,It4, i’ 41 4 li8’ tI*,I ))‘‘‘9 I .rIil’4:l4 .411Hl14(’ 444411k1 44,4 4 4 4) ‘‘,I*4’1 I. • *t 1I*II,III ‘94 (‘44(44 JJI)lt(’) 784 IIIC l*.,i*vI’. *.1 • 4*44’ 44 4’ 44 ‘3,4,43844 •*4t4’j’ ‘‘4 hIt’ I .14454 )LIIIC 44)44 ‘lie 444 4 4’) 94’ .4 44’ (444(14 4.4)4 ‘3)*I4I 4 ‘.4)1111434 4,4 441’% *ik’ 4rl 1 4** 4ê**’ 2,44 444 • 44*444441 4 \1’I )133(’ .83III(144 IIY )44 1443444 4 1 4144’ 1 .‘*‘L4iiii 4444414 )4’4 II) 44)4’ .)lt.l ‘I! 4 14 4 4 4 4 44’l 44.*% ‘4’ Ills)) .414 it l .444 4, It ill% 4’ ‘914.4)))) 9. 474 4 41 44 4s(’ ‘4 1*44 2,4 344818’)) 314 ,‘*l* 4*4 8*114 3)1 ‘*1 3 rlt’ 4*4 488)41) 4,4 ‘4 ‘**I ‘3.3’ t*’ *4 .4 4444)8 III 4.’IIIUJI 4 114 *48 III 4414’ (,,J%4’1)4(44 (‘44444.448*8 124 32)4 4 ‘5 444.1 4’) 444 118 4*41’ ‘9 C .34) 4’ 4)4 I*44I4\ ‘l 444*44,424) .41 4,”’,j! 4’) *I 4 .4)4(4 ,I% 23 4344443)48)44 3941444*7, “I 9.’).)) 4 444’ 3’’(’)II 4,’, I 4 Us 4443 .44)84114 , 4*4’ 4 113)7 744 ‘24 lU’ ‘‘.14 44*4) ‘4 4478’,* I 1(4’ (.42’. 4)4434) 4484 44 . II I 4 4 *34. II *4* 1I4 4 4.4)t’ 2 ‘974 134 14 .4 44344444 guI, *4 4 2’ 21 4 41’ 434,4 h •,)*,( ‘14)44 t’*! 1 4) ‘4 ‘171191(’414 44 .24 444)44 . I ‘(1 ‘44441.3 4 ‘ h HI*414h441 ‘44144 ,*itt 44441I 44814 4 444. 4 hou1d th At1orny General have ierieral law enforcement nowers? 1’’’ ‘ , 34(33442 nIl 414 34 ‘944.43444 4 .‘ 414 4 2444 4 447)41 ‘4 4 II I’ll.) 3’4,2 4 11) ‘1 * . ‘2) 44411)I4’ ‘ I 444 9 434 4 * .9444 4 4’ U I . ‘441 ‘K 1 40 ?‘14 ‘ , . ‘ 4. I,’j, ‘1 i’ll) 3’ 02 4 U K 11 .2 4 , 4 4 4’. In 44 41 44 ‘4* 4 8)44 ‘ 1,4 3444 ,4 44’ 44 4 4’ I ADD46 • IIIIIIII s. hr 4’ HI .‘I (1154 lii ii NH SW’.’. I’. ri •i i hic’.’ S i’ll . (‘‘II 1. .Ii’.ej iii .114.4111.”.’. ii i ‘.‘. iatiiu \t s’. a k 4. ii’.. liii Ii IIi r.I%Lll)t*r til:i’. *41 ii 461 HI 144441 %r.)T.. %4 1,lr%4’SII, the it ,t For 3.41 41441t1w’.’. II t +ik 4. II’. I.. l.iiii ‘ II’.. I III’ I .4’. t’4 44$ + Ii,). i hr 4,, entn’.r .i .h’.i 4 i, i illol 13eV It II’. ((It’ll hi’ 1’ LI’..4 Il 4(43(444’ .4 I hr i ,,,rs jnst liina .n1 .ln IlI1t1t — 411)44’, So Ipe 14CJ144 41) il’. “sil itek n’.e. %l434 L’ .I’.t, III 44t,4 4)4”.’. .414.’ 4.43 1%? lI14I3l)IIJI lull (‘t*. lit i) 1)11144’ 144.4’. 1(414 1.4’ 4444)1I’IIII’SI ..l ihi( II ,hiit’’. sIlI)’.(.I4lll.4lI’. ()14)JII14I h’. II ‘.l’.’ f.11h4’ 44 14(444 I I.i’. r’. 5. i hr 4. . l%45444114)ll :HI4hIH iw’. ihie .lillIp;l14Il .il pi 14,11.41 144 III) .l’ ()434444 1’’. I J114114’I4I 41)5 31)41114(44 I(131’.I(Ie \IW 4)41. 4. ‘4)411 I 1444)lI(.ll 14)11)1% 4)4 L((LII1t% “(4’.) 4)33)46 111 41.4’, Iiç’ 1$)6 ((It’ll (‘1(1)14 ‘. .4(3)’ II .L i,s ii It .iI I 4’. ((III (4(43*4 l L’ I ‘. (‘II 134. I hit !l’. 4(31 344’ 4)4 1144 ((4(4414 . “.346)1 •)fI(’I 44.ilL’.4’ I) 4)3% III 1 +*II14’, ‘l)4,.t’) 71 714(441 714,3’ )I(4)I1’,h (‘S 54 )llstC( 41) .(II44iIIL .41154 r S1H’ tills, 1314)’. 434 ,)l4’ II’. 4.’ 14(4,41 411114 i.th, 314 II4LIIIS1 i1e 111611141 ,I441) 334’’. I IiI.’’.L 111<’) II I I I (((43444’. 111’,4 I l1)IICIII 4444)’. I%(4)(I% 4)1 4174’ 4. ‘‘tIs) 1411414)14 Ilr 41(31 3)1’ II 313k (, \4 ‘. I,. II’.. I hi II’ (5 11,) ,)))‘,tljtIlHll),() 44111)414(1,1141)71 ‘4) 4474 )I)(I1l11)(lI .4) 3 ll(’.lr) .14 )l1 .4111 4”, ((4. 14,31 ‘.1’ 4)4.14441 )ll4nhlr’, S 41,4 Il’.e 4’ 4*41)14’, III 7h4’ • (14., 3. STATUTORY PROVISIONS I 1’ (.IIIII’. I (fl l’’. 4(14’. 443.34 1114 ).I 41). Ij.I1 lIll4.lI4I 4)1 lIlt’ I ‘It 544 (53(44444”. 4’. .4 1 ‘111411)44 I 41 jl)l 1< (3)114’)’’. Ii (F I 4)4434”. 111(1 4414444 ‘‘‘Ll11J,II1ll 114 lIt,’ . “4443’. 735 (‘‘(1)44’ ‘‘ I )‘ i’s’. 1.44114 1 (1 I’ (41 1)) 4(44 4(4 I 4.)) h. .11,44)44 (45(4 1)1’’. 1’, 14.4. .fn.ll’.411l<’ *4(4 II.(4(( I Il(S) 344)4,3(4 (43)3414 44)4(4) 4) llhJli 4) 1 (441)4 ‘‘ii I 14446.4’’.; r I1 * ..iI,t. Ii I%r 1’<’ ‘114111)1 114144 3.44’. 1(414) 5 lb II) Sill’ .*) I( 3 ,135(441)4 % + • I’s’ (44’) 743)’ ‘43111111 ‘‘‘‘1.37 34433’. • I Ill ‘.l.4l)(l 1444 7(1 3’. 1 (II ))7.iI(4 (II 1174 I (II.)) Il’,% 4(43 ((II. 344 ‘ ‘ (I th<’. 414’ (4 ‘,I’41114’fl ‘‘44 At (t4lIll.)14 II 14411 (4 (It’d 14)14)4’, I 7)’ (C II I + 4 41 1)7.4 ,Lti t’. ‘41 114 ‘1 4 h.,i ;*l ‘4 7 411’S 4 4,4(4* I’ ‘‘ ((4 + (I 4(4+ 1*4114 3(4.4) + (3 133’ l%(++)4 44411 4% 4, 4)74 (‘1(41(1% ‘‘1 4’ I 31(1 + 1 l(.1’’ It 4’ I’, 4) * 7(4. 7 4 1 1 1 I 1111341 ii i> I 4 14 44 (4’ , 3’, + I < (+ II 4 1 II ‘ 1 ‘liii I.I1 4)344 4, 1) 14 1 4+114, I, (‘1.314. • II? I ii III I) 4.4 4 1(44 4 4 41’ 1(114) 3 4)44 I ‘ (4 41)’, ((( h+l,l +.+i. I + 7 (1 1 4 ‘.44 4 44.43) 4 4’. 4 1) 1;’.(i 4+4 14 I 1’ 4 1 • I 4 4’ 1(444’. 11.13+1 4 ‘. ‘4’ •‘. , ‘ ‘1’ 41. 1 4 4 t 1r .44.) 41(1 ((1 ..+1 ‘,‘ 33 ‘4+ 4+3(4 44 7 1 1 hI’ 1 174 4 ‘. 414334444 71(I”.1’4 ((4 (414 ADD47 0. cORS1flUT1O*I. LSSU!S Shud isftIct afteriiqs ba e1.cti or apeated? II ‘4f4’(4 lj 1 ‘I (III If ‘4f4 ‘t,.,1141444 .4 • k, ii..a’ I !I44%e’ 41h.p 4344w ‘hr * ‘‘I.II,w.uue 4 *I• I*1It rfrttise i. (II) .t%4’4 I I (*.II *4 14.1% ‘**,I I. i.tt * I • I 4*4 (.I’.(. I hr 4 a rn hrv .*..ci t. ‘4.1% 4(44’ .4411 .1I1I.Il4 Ill I 41144 III4L .1 I s)4t’l44Iti .11)44’ 4 I*4tI4’ II III4’4I4C ,slr’ ‘4 I 14V I 41(1*14 (‘444(114 I h., i .4 111% 11It *III4(’4 I*I4I*g .114111 11444 *111 CI 114 (44 itil llI*’Qbt’S.l)lI(’ I’I I(I( I (Ii II,I,II( I,I .4 •I*lII)4’.. I’JIIMI 1IIII4I( tt4,t l1l’l% iI,i te( 1)4 %IIIS IllellIalIl. II * .iiiic al. 1**,I 4113(IV 4irtlIIhI Ik’ I :iih.* IbIIIt 1,44 .41 (44. l’4?45 II .I%1 44(4*44 (1414 *44. LIII 414111 ‘a ItrY 11*41’ 44* ri r tI*l’ (4.44444 $11.11 tri ak 141 4 i t*111144, (4344 I4444 (II 4I I 4*11 II,’* S 41.4*444 ‘ till III I.(4’( I’I lie a ‘*441)1*1 I i I,it *41 ‘.141’ 4 ‘(‘11(4 1 ta*rsr i4h., I 44*4( I)4 l1C%II4t 444)%1t4I1114,IL*1 (a4444l*S *41 ‘.vlI II it. %I44 4) 44 4’ II a”.ir.il,(r (i.ir *l*lI41)l%e ‘IlsIrl. I il)*44 41 4, tlt*’. II*IIII (I(’ .44*111’ 44) 1 I lliI4*’4 ,,1l1%.ldt’ \a 4V I)1L. I 41) I LW II 4 •1.’fldIllt* (.tlISII.,lIl lhr .*Ii#*t4.i1 4,,414Il% I)’. II)flh III (I1IISI%I.*flS .4 Ilir 4 ,ri* iiii.stt I 1ç *44, .,i, (I’ll 1t(44l4t , b’s t...” 411 1F1 .44I4 .4) I )ar ru *sa it h.4t It ft *gtncnts (4W I 114*444 rnwflt ‘“144 t(”l II $4 ‘ 4 ,4I1$fl.*1 (.4l*4&’( 1*4*4 444 44,4434 ((‘ii h% t* .114(4*1 I .4 i,4TI4v 4$ 41*4’ 44,l’ , 1*41 .4 t*4t,44t 4% rj.( II.iI .11441 rh *4 3* 11411” li*s ‘11 i ,a 44 14 14*1 ‘‘4 Ii( 144 (4Irl4L’1I*I% ‘I ,ta a 1.1()43I4 4,44*1.44*14 1 )lUI.II4I4 *lL, *4)4*41114414 *14.141 ‘*1 a 11(1411.41 II’*it* 4’ ‘4 ‘1 i’ “I 4*4’, I’’I4 l), *1114 4’. 4 *14 44 ‘44, r *14 4’ 4.,44J( I *tI.t1ll”.’ 44,44 , 4lif4’t I a “444,I,*11( II I 4.11 * ir ‘, 4.,4’ III 44 ,4%(’* (‘.4 411 (44 4% ‘*4 1*4*4 I II all ,I* t,14( I I I 444 4% .* III It) ‘1416r4 144114 * 41* n 4 I )‘‘IftaI I * ,4444*44 (4 4 1141 II 411 11 1.111 ‘4 4 4s14 H** i *31 11444*. 4*4 .4 4 lat’ *I 4141 I 1,1441’ 1 4 1 14441 41(4 • .14414 4 44 Ias***it ,*jt’,* 13* 4% 44.i44 41 1*4 *J’(4h1I’’ *1 II 114*’ (.444* * 444*4 .14.444 V ‘I4I4 *4 114 F(’441’*I.IIIIr I *1LIII)lfl.414aI14, ‘4 (II 1), 44 (,*a’e t4Il4*.1,i44 ,44I( ‘(lint .,*It” Ji*.l4l1* II 1* 4U(11.I1l*114S. 4 4 )Ii* .4844(1 I)*,* 44*.. 41144)411444 ‘.4 114 I4*(.4.*I)IIIi’ .4444’Ifl *4 • It44SI4I’ 4*1441114’ \4’%4 ‘**f4k C 144 (iv 4 *‘ .1 . ‘.‘*rlIIl,4)14 ‘, •..4*( **,t I’ IIt%44.ahlI’ 44454 C 44 414,44)41 *4,41 ‘* I 1444) • .(..1lI 314(1’ I,444 4 1*141411* 4444444 ()(I* 4I1 544444 44 f)4f,444,4)4,,I) I! 4 41.’4 44*44 4*1.44 441 141’ *. Ii*r tf I* 4’ iL 4 11,1444’ ..,44I(’ 444 4 jIr .41 * 4*1. * ,4 4’* I ‘fij • 4 4’ 8* 14 * ‘‘II 4*44414 * ‘ 4 44 ‘‘‘ ‘ ‘ t l •41’(*l*flTl 4 1 3I**;*11(I 4’ 4 1 I P4 ADD48