Gregory Dubinski, who argued the case Friday on Cuomo’s behalf, issued a statement following the hearing, saying: “We appreciate that we have a judge who clearly understands the important constitutional issues here and are confident that we will prevail.” The investigation could lead to the former governor forfeiting his $5.1 million in earnings from “American Crisis: Leadership Lessons from the COVID-19 Pandemic.” Marcelle said he expects to issue a decision in the case within a couple months - which would be ahead of a scheduled September ethics commission hearing on Cuomo’s COVID-19 book. “Only a bunch of law school deans could come up with a phrase, 'your lived experience,' blah, blah, blah,” Marcelle said. Marcelle took issue with the commissioner qualifications the deans crafted, which were not binary considerations like one’s age or standing as a lawyer, but rather subjective items including someone’s “lived experience.” The deans made decisions in meetings that are private and not subject to the state’s Open Meetings Law.

“It may not make a hill of beans one way or another, but I’m troubled by it,” Marcelle said, describing the law school deans as “academic elites.”

But Marcelle questioned the fact the committee is not subject to public scrutiny. The intent of that setup, lawmakers have stated, was to create independence from public officials. The judge pointed to the commission’s “Independent Review Committee,” a group of law school deans who were given the authority to vet and appoint members of the commission. Marcelle described the use of a constitutional amendment to establish a commission as a “safe harbor” from potential criticism that it exists on unstable legal footing.

Other independent state commissions, including the Independent Redistricting Commission and the Commission on Judicial Nomination, were authorized through constitutional amendments that allowed voters to decide on their creation, Marcelle noted. The ethics commission was established by the Legislature and Gov. State Supreme Court Justice Thomas Marcelle presided over the two-hour hearing he will decide whether the new ethics panel was legally established or may be required to be set up through a constitutional amendment. The ethics panel was forged last year and designed to be more independent of the executive branch in the wake of disbanding of its troubled predecessor - the Joint Commission on Public Ethics.Īn attorney for Cuomo, in court filings, described the state’s defense of the ethics commission as a “blatant trampling of the governor’s constitutional duty and powers,” and, more simply, as “hogwash.” His legal team described the state’s defense as a “parade of red herrings and inapposite hand-waving, resting upon a strawman version” of its arguments. Cuomo’s attorneys are asserting that the state’s ethics agency is unconstitutional because of its lack of executive oversight, which, in turn, violates separation of powers.

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