Lawyers for former Gov. Andrew Cuomo and New York state appeared before a judge Friday. Cuomo's attorneys are arguing the state’s newly formed ethics panel is unconstitutional, partially in an attempt to derail the panel's investigation into his pandemic-era book deal.
Cuomo’s case questions the constitutionality of the Commission on Ethics and Lobbying in Government (COELIG), a panel formed to replace the Joint Commission on Public Ethics last year.
One of the main pillars of the lawsuit argues that the structure and potential enforcement powers of the panel violate separation of powers given to the governor under the state constitution.
Members of the commission are nominated by state legislative leaders, the governor, state comptroller and attorney general. They are then confirmed by a panel of law school deans from around New York.
The law school deans, Cuomo’s attorneys argue, are not public officials and are not subject to laws like public meeting requirements, when considering whether to approve the appointments. They also pointed out that only the commission itself has power to remove members, despite it remaining under the executive branch.
Judge Marcelle seemed particularly interested in this point.
“Isn't that a problem?” Marcelle asked regarding the confirmation process with the law school deans. “That you have a few people who are unelected, who are unrepresentative of the state or of the people as a whole, who are not public officers, who take no oath to uphold the laws of the state of New York, who are exempt from public meetings laws, who operate in secret, who then cast upon elected officials' nominees with no explanation whatsoever?”
Ryan Hickey, a lawyer with the attorney general's office, defended the appointment structure.
"I don't think we have that concern here. Number one, because the quote unquote private individuals here are the deans of the [American Bar Association] accredited law schools who are charged with not selecting from carte blanche from anyone in the world that they want with sitting on this commission, but charged with evaluating the nominees made by the various selection officials," Hickey said.
Judge Marcelle conferred with the parties following arguments Friday to set up a schedule for both sides to file additional written briefs prior to him rendering a decision in the case. During arguments, Marcelle himself alluded to the likelihood that his ruling is likely a first step in what could be an appeals process that drags on, possibly for several months.
A previously scheduled hearing of Cuomo’s case before COELIG had been scheduled for later this month, but has since been postponed to September.
