Soares v. Herrick

Rose, J. (dissenting).

We respectfully dissent. The extraordinary remedy of prohibition “should be available only when a court exceeds its jurisdiction or authorized power in such a manner as to implicate the legality of the entire proceeding” (Matter of Rush v Mordue, 68 NY2d 348, 353 [1986]). It is not available to correct procedural or substantive errors of law (see Matter of Dondi v Jones, 40 NY2d 8, 15 [1976]). In our view, respondent County Judge of Albany County (hereinafter respondent) did not exceed his jurisdiction or authorized powers by disqualifying petitioner, a District Attorney, on the basis of a *155conflict of interest. Whether that conflict warranted disqualification “is a question of law not reviewable by way of prohibition” (Matter of Kavanagh v Vogt, 58 NY2d 678, 679 [1982]). Inasmuch as the Court of Appeals squarely addressed this question in Kavanagh, there is nothing novel about petitioner’s claim that prohibition should be available here and, accordingly, we would dismiss the petition.

While not necessary to the foregoing analysis, it seems obvious to us that petitioner has a conflict of interest here given his adversarial relationship to respondents Naomi Loomis, Robert Loomis, Kenneth Michael Loomis, Kirk Calvert and Tony Palladino (hereinafter collectively referred to as the defendants) in their pending civil lawsuit (see People v Zimmer, 51 NY2d 390, 394-395 [1980]; see also Young v United States ex rel. Vuitton et Fils S. A., 481 US 787, 814 [1987]; Cowles v Brownell, 73 NY2d 382, 387 [1989]; People v La Brake, 28 NY2d 625, 626-627 [1971]; Matter of Kavanagh v Vogt, 88 AD2d 1049, 1049 [1982, Levine, J., dissenting] [noting that a civil adversarial relationship “is no less a possible ground for disqualification than prior representation”], affd 58 NY2d 678 [1982]). Although the existence of a conflict may not necessarily require disqualification (see e.g. People v English, 88 NY2d 30, 33-34 [1996]), it bears repeating that the issue of the propriety of the disqualification ruling is a question of law not reviewable by way of prohibition (see Matter of Kavanagh v Vogt, 58 NY2d at 679).

The majority seems to accept that there is at least a potential for prejudice here, but goes on to determine that there is no actual prejudice arising from the conflict of interest so as to warrant disqualification. To the extent that the cases from the First and Second Departments cited by the majority employ this approach (see Matter of Dillon v Kowtna, 270 AD2d 219 [2000]; Matter of Johnson v Collins, 210 AD2d 68 [1994]; Matter of Morgenthau v Altman, 207 AD2d 685 [1994], lv denied 84 NY2d 812 [1995]; Matter of Morgenthau v Crane, 113 AD2d 20 [1985]), they ignore Kavanagh. Instead, they purport to rely upon Matter of Schumer v Holtzman (60 NY2d 46 [1983]) and La Rocca v Lane (37 NY2d 575 [1975], cert denied 424 US 968 [1976]). Matter of Schumer v Holtzman (supra), however, does not support the extraordinary remedy of prohibition in this case as it involved a District Attorney acting in excess of her powers by transferring her duties to a Special District Attorney without any statutory authority to do so (Matter of Schumer v Holtzman, 60 NY2d at 52-53; see County Law §§ 700, 701; Executive Law § 63 [2], [3]). Further, the issue of the District Attorney’s *156disqualification was premature because she had not yet commenced the criminal prosecution and, therefore, the objector could allege no more than a possible appearance of impropriety (Matter of Schumer v Holtzman, 60 NY2d at 56). This case is also unlike La Rocca v Lane (supra), in which prohibition was found to lie due to an “arguable, substantial, and novel claim that a court has exceeded its powers because of a collision of unquestioned constitutional principles” (La Rocca v Lane, 37 NY2d at 581). There is no such collision here. Although petitioner is a constitutional officer (see NY Const, art XIII, § 13), his duties are defined by statute (see County Law § 700 [1]; People v Gilmour, 98 NY2d 126, 130 [2002]; Matter of Dondi v Jones, 40 NY2d at 19) and may be infringed upon “when a conflict of interest potentially impairs the prosecutor’s obligation to do justice” (Matter of Sedore v Epstein, 56 AD3d 60, 68 [2008], citing People v Shinkle, 51 NY2d 417 [1980]; People v Zimmer, 51 NY2d 390 [1980]).

We would also note that, in determining whether the conflict warrants disqualification here, the majority effectively reviews the merits of respondent’s dismissal of the fifth indictment despite the fact that no direct appeal lies from that dismissal (see CPL 450.20). The People’s ability to appeal is strictly limited to those instances listed in CPL 450.20 (see People v Laing, 79 NY2d 166, 170 [1992]), and the majority’s approach here will frustrate the statutory limits on review by improperly allowing the writ of prohibition to be used for collateral review of an issue of law in a pending criminal action. As for the majority’s concern that petitioner has no other means for review of his disqualification, the appealability or nonappealability of an issue is not dispositive (see Matter of Holtzman v Goldman, 71 NY2d 564, 570 [1988]), and prohibition has been found not to lie even though a court’s decision might be insulated from appellate review (see Matter of State of New York v King, 36 NY2d 59, 62-63 [1975]).

We also disagree with the majority’s holding that the appearance of impropriety cannot cause the disqualification of a district attorney. While the Court of Appeals has held that “the appearance of impropriety, standing alone, might not be grounds for disqualification” (Matter of Schumer v Holtzman, 60 NY2d at 55 [emphasis added]), that statement necessarily implies that the appearance of impropriety may be grounds for disqualification. Indeed, in People v Zimmer (supra), the Court of Appeals dismissed an indictment noting that, even in the absence of *157actual prejudice, the prosecutor should have recused himself because of his “personal and financial attachments” to the case (People v Zimmer, 51 NY2d at 395). Thus, even if we were to properly reach the merits of the underlying disqualification issue here, we would not disturb respondent’s ruling given the inherent conflict presented by the prosecution of a criminal case by a prosecutor who is personally and financially interested in the outcome (see id.).

Finally, we disagree with the majority’s conclusion that public policy warrants their approach. Meritless lawsuits filed by defendants in an attempt to disqualify prosecutors are unlikely to be successful in achieving such a result. Here, the factual circumstances are unique and the defendants, rather than merely commencing a federal lawsuit, engaged in what appears to be extensive discovery and survived a fully briefed motion for summary judgment before a federal district court judge. In our view, the risk of criminal defendants successfully disqualifying prosecutors based on the mere initiation of a civil lawsuit is slight and does not warrant our departure from settled precedent.

Malone Jr. and Garry, JJ., concur with Peters, J.E; Rose, J., dissents in a separate opinion in which Lahtinen, J., concurs.

Adjudged that the petition is granted, without costs, orders dated November 15, 2010 and November 22, 2010 are vacated and respondent County Judge of Albany County is prohibited from taking any action in reliance on said orders.