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Johnson v. Pataki, 91 N.Y.2d 214 (Dec. 4, 1997).





On March 21, 1996, in anticipation of a potential capital case against the alleged killer of a police officer, Governor Pataki issued Executive Order No. 27 pursuant to Art. IV, § 3 of the New York State Constitution and Executive Law § 63(2). The Executive Order required New York State Attorney General Dennis C. Vacco to replace Bronx District Attorney Robert T. Johnson because of Johnson's alleged "blanket policy" against imposition of the death penalty. The Executive Order stated that this policy violated both the District Attorney's statutory duty to determine death penalty eligibility on a case-by-case basis and also raised the possibility that future death sentences would be challenged on proportionality grounds.

Subsequently, Angel Diaz was indicted for first degree murder for the death of the police officer. Diaz's alleged accomplices, Jesus Mendez and Ricardo Morales ("the accomplices"), were each indicted for second degree murder.

The District Attorney and Bronx County voters and taxpayers challenged the legality of the Executive Order in separate Article 78 proceedings. Supreme Court dismissed these petitions, holding that the superseder was a valid executive action and was nonjusticiable. The court alternatively held that even if subjected to judicial review, the Governor's action was justified by the District Attorney's public anti-death penalty stance.

During the appeals process, Diaz committed suicide. Both accomplices were convicted in federal court for their involvement in the death of the police officer. The Appellate Division concluded that the appeal was not moot and affirmed the Supreme Court's opinion. Petitioners appeal.



1. Whether the District Attorney's appeal challenging the validity of a superseder order is mooted by intervening events which include the death of the capital case defendant, the federal convictions of his accomplices, and the dismissal of state indictments against the accomplices.

2. Whether Governor Pataki exceeded his constitutional and statutory authority in superseding the District Attorney's prosecution of defendant in a death eligible case.


1. No, because the question of whether the Executive Order was valid was a live issue before the court. The District Attorney could have sought additional indictments against the accomplices and the Executive Order required Bronx County to pay all costs relating to the Attorney General's prosecution.

2. No, the Governor was acting within his statutory authority pursuant to Art. IV, § 3 of the New York state Constitution and Executive Law § 63(2).


Cases Cited by the Court

Other Sources Cited by the Court

Cases Relied on by the Dissents

Other Sources Cited by the Dissents



State of the Law Before Johnson

Under New York law, a question is not moot if a live controversy exists as to the matters before the court. A live controversy exists where both the rights of the parties will be directly affected by adjudication and the judgment has "immediate consequence" for the parties. Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714 (N.Y. 1980).

New York courts have declared that the right of a governor to act pursuant to a valid grant of discretionary authority is beyond judicial review. See Gaynor v. Rockefeller, 15 N.Y.2d 120, 131 (N.Y. 1965). See also Nistal v. Hausauer, 308 N.Y. 146, 152-53 (N.Y. 1954). Specifically, the Governor has discretion to supersede the District Attorney without establishing the necessity of his action. Mulroy v. Carey, 396 N.Y.S.2d 929 (N.Y. App. Div. 1977), aff'd  43 N.Y.2d 819 (N.Y. 1977). Neither the case law nor Executive Law § 63(2) question the ability of the governor to replace the local District Attorney with the Attorney General, even absent a local conflict of interest. See People v. Leahy, 72 NY2d 510, 513 (N.Y. 1988). The Governor's authority in such cases is limited only if his order conflicts with the legislature's intent. Rapp v. Carey, 44 NY2d 157 (N.Y. 1978).

Effect of Johnson on Current Law

The Johnson court holds that the appeal had not been mooted by intervening events, that the disposition of this case would have "immediate consequences" for both the Bronx County and the accomplices, and that therefore a live controversy exists. Johnson at para. 7.

The court further holds that the Governor's executive order was valid under Art. IV, § 3 of the New York State Constitution and Executive Law § 63(2). Id. at para. 13. The court acknowledges that under the appropriate circumstances it could review the rationality of an executive order (Id. at para. 12 (citing Mulroy)), but that the circumstances of the instant case did not qualify for such a review. Id. at para. 19. In effect, the court seems to apply a low level of scrutiny for executive orders.

The appellants argue that because the district attorney is an elected official, he is insulated from nonconsensual superseder by a "zone of independence." Id. at para. 14. The court finds that the legislature specifically authorized superseder in this context in Executive Law § 63(2). Id. at para. 15. In fact, the statute says nothing in regard to the status of the district attorney as an elected official.

Appellants posit that Executive Law § 63-d obviates the applicability of section 63(2) to a district attorney's discretion in death penalty cases. Id. at para. 17. Section 63-d, passed in conjunction with recent death penalty legislation, allows the district attorney to request the assistance of the Attorney General in a death penalty case. The court finds that section 63-d did not constrict the Governor's authority under section 63(2); instead, the two laws are complementary to each other. Id. at para. 17.

The appellants further argue that the Governor's act conflicted with legislative intent, and that the court disallowed such action in Rapp. Id. at para. 18 (distinguishing Rapp). However, the court here construes legislative intent as requiring the District Attorney to consider the death penalty. Id. The Governor could act to ensure that the death penalty would at least be considered by replacing the District Attorney with the Attorney General.


Titone, J., Dissent

The basis of this dissent is that the supersession power is "subject to at least the limitation that it cannot be exercised in a way that directly contravenes a specific legislative enactment" because it is "based wholly on an act of the legislature." Dissent para. 2 (citing Rapp). Judge Titone argues that in this case, the Governor's exercise of the supersession power contradicts the legislature's intent to give the District Attorney "unfettered discretion" to decide whether to seek the death penalty. Dissent para. 5 (emphasis in original).

The scope of the District Attorney's discretion is, according to Judge Titone, nearly absolute. Absent corruption or incompetence, no "particular criteria or methodology" is prescribed to govern the District Attorney's decision. See Dissent para. 3, 7. The dissent argues that even a decision based on the District Attorney's policy not to seek the death penalty in any case is permissible because "a decision based on overriding policy considerations is as much an exercise of prosecutorial discretion as is one based on individualized factors." Dissent para. 7 (citing People v. Bratton, 65 NY 2d 675 (N.Y. 1985)).

Smith, J., Dissent

Judge Smith first argues that the case is moot. The fact that a claim will be made against Bronx County for the costs incurred by the Attorney General does not mitigate mootness because no such claim for payment has been made and "it is not presently clear that it ever will be." Dissent para. 8. Judge Smith also asserts that the argument that the District Attorney may bring additional charges is speculative.

As to the superseder claim, Judge Smith states that exercise of the supersession power should be evaluated under a rational basis standard. This standard gives "the proper and necessary regard to the changed role of district attorneys" in New York. Dissent, para. 14. The dissent implies that since district attorneys in New York are elected by the people and are constitutional officers, the rational basis standard strikes the proper balance between the power of the Governor and the constitutional role of a district attorney. Dissent para. 14 (citing People v. Leahy, 72 N.Y.2d 510, 513; N.Y. Const. Art. XIII, § 13).

Unanswered Questions

First, because the majority finds that the consequences of their decision would affect the remaining parties, they decline to contemplate the mootness doctrine exception. Johnson at fn. 1. Judge Smith asserts that the exception is not applicable to this case. Smith dissent para. 17. Because the majority's decision obviates the need to examine the mootness exception, it is unclear whether the majority would have applied the mootness exception. Under what circumstances would the majority conclude that the mootness exception renders an otherwise moot issue a live controversy?

Judge Smith's dissent raises a related mootness issue. Judge Smith asserts that the speculative nature of the consequences of this case upon the remaining parties renders the appeal moot. In replying to Judge Smith, the majority states that "[w]e have no cause to doubt the District Attorney's own argument that the case is not moot because of several additional steps he could take" in the event the superseder was invalidated, and therefore concludes that this possibility is not speculative. Johnson at fn. 1. Would any charge that the District Attorney could bring be sufficient to avoid a charge of mootness? When would the contingency of future events render an appeal moot?

Third, the majority cites Mulroy to assert the view that the court has left open the possibility of circumstances requiring judicial review of the use of the executive's superseder power. If the majority does not believe that the Governor's use of the superseder power in the present case requires a rational basis test, what prevents the Governor from superseding a District Attorney's judgment in the future when he disagrees with any part of the prosecution? Whether the District Attorney's judgment is painted as a "blanket policy" or a singular decision, it seems the Governor could always claim that he must make sure that the laws of New York are properly enforced and that he does not believe the District Attorney is doing so. When faced with a superseder, will the District Attorney's decisions ever be given the benefit of the doubt over the Governor's preferences? Under what circumstances will the court invoke the power it reserved in Mulroy and require review of a superseder order?

Survey of the Law in Other Jurisdictions

In our survey, we did not find any cases dealing with superseder in the context of a capital case. However, other jurisdictions have addressed the superseder problem in other contexts.

The state of California provides for the governor to appoint the attorney general to, "[A]ssist any district attorney in the discharge of his duties and may where he deems it necessary to take full charge of any investigation or prosecution of violations of law of which the superior court has jurisdiction. In this respect he has all the powers of a district attorney, including the power to issue or cause to be issued subpoenas or other process." Cal. Gov't Code § 12550 (West 1992); see also People v. Honig, 48 Cal. App. 4th 289, 354 (Cal. Ct. App. 1996) (quoting Cal. Gov't Code § 12550) (Attorney General was able to prosecute criminal case as long as, in the attorney general's opinion, the law of the state was not being adequately prosecuted).

However, in California the attorney general is allowed to intervene on his or her own initiative. Cal. Gov't Code § 12550. This independent authority of the attorney general does not exist in New York or in Colorado; in both of those states, only the governor may order supersession of local prosecution. See N.Y. Exec. Law sec. 63(2); Colo. Rev. Stat. Ann. 24-31-101(1)(a) (1997). In Pennsylvania the Attorney General is limited in authority to the prosecution of criminal cases as set forth in the Pennsylvania statutes (Pa. Stat. Ann. tit. 71, § 732-205 (West 1990); cf. Va. Code Ann. § 2.1-124 (Michie Supp. 1997) (effective Jan. 1, 1998)) and does not possess any inherent additional powers, such as the power to supersede and set aside the district attorney in a given case. Commonwealth v. Carsia, 517 A.2d 956 (Pa. 1986).

In Maine, a statute exists which is similar to the statute at issue in Johnson. "Whenever the Governor and Council, upon complaint and due notice and hearing, shall find that the district attorney has violated any statute or is not performing his duties faithfully and efficiently, they may remove a district attorney from office and appoint another attorney in his place." Me. Rev. Stat. Ann. tit. 30, § 451 (West 1997). Also, the Justices of the Maine Supreme Judicial Court found that Me. Rev. Stat. Ann. tit. 30, § 451 did not violate Article III (regarding distribution of powers) of the Maine Constitution. Me. Const. art. 3; Opinion of the Justices of the Supreme Judicial Court Given Under the Provisions of Section 3 of Article VI of the Constitution, 343 A.2d 196 (Me. 1975).

Wyoming does not give the governor the power to appoint the attorney general as a prosecutor, but only as an investigator. In addition, when the district attorney fails or refuses to act in a case, the Board of Commissioners or district judge has the power to request a prosecution. Wyo. Stat. Ann. § 9-1-603 (Michie 1997); Hilderbrand v. Padget (In re Padget), 678 P.2d 870, 874 (Wyo. 1984) (It is improper for the judiciary to make the charging decision).

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