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Ethics panel unconstitutional, appeals court says

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(The Center Square) – A now-defunct New York state ethics panel that targeted former-Gov. Andrew Cuomo over a controversial book deal is unconstitutional, a state appeals court has ruled.

The unanimous ruling by New York’s Appellate Division’s Third Department upholds a September decision by state Supreme Court Judge Thomas Marcelle. He determined the state Commission on Ethics and Lobbying in Government was created without a required constitutional amendment, and lacks oversight of how the governor and other top officials appoint panel members.

“The Legislature, though well-intentioned in its actions, violated the bedrock principles of separation of powers,” the panel wrote in the six-page ruling. “Even the most advantageous legislation violates the dictates of separation of powers if it results in one branch of government encroaching upon the powers of another for the purpose of expanding its own powers.”

The ruling stems from a lawsuit filed by former Cuomo saying the ethics panel doesn’t have the authority to seize $5.1 million from a book he wrote about the state’s response to the COVID-19 pandemic.

Cuomo’s lawyer, Gregory Dubinsky of the law firm Holwell Shuster & Goldberg, said in a statement they are “gratified” by the appellate court’s ruling which they said “recognized that the act creating COELIG usurped the power of the governor and placed it in the hands of individuals who answer neither to the governor nor the electorate.”

In 2020, the Joint Commission on Public Ethics initially approved Cuomo’s request to write the book. But a year later, the commission walked back that approval, saying Cuomo had used his staff and state resources on the book. The panel ordered Cuomo to forfeit the $5.1 million a publisher paid him.

Cuomo sued to block the move, saying it was fueled by politics and deprived him of due process. In August 2022, a state judge overturned the commission’s order after ruling that the panel had sidestepped the rules by not holding a hearing on the fines.

Gov. Kathy Hochul, a Democrat who took over after Cuomo resigned in August 2021 amid a sex scandal, signed a bill last year disbanding the commission and creating the new panel, which rekindled efforts to clawback the money from Cuomo’s book deal.

In court filings, Cuomo’s lawyers say Hochul’s move to create the ethics commission “blatantly violates the separation of powers because it creates an unaccountable agency exercising quintessentially executive powers.”

In a joint statement, Chairman Frederick Davie of the Commission on Ethics and Lobbying in Government and Executive Director Sanford Berland said they “respectfully disagree” with the ruling and are “reviewing all options, including, if appropriate, recommending interim legislation.”

“We will work with the Attorney General’s office to promptly seek review in the Court of Appeals and to continue the stay of the lower court’s order for the duration of the appellate process,” they said.

The officials stressed the state’s ethics laws “remain intact” and that the commission “will continue to promote compliance with the state’s ethics and lobbying laws as this matter works its way through the full appellate process.”

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