Judge Who Sparred With DA Reined In by Court

     ALBANY, N.Y. (CN) – A judge who tried to compel prosecution of four men over an Occupy Albany demonstration overstepped his authority, New York’s high court found.
     “Under the doctrine of separation of powers, courts lack the authority to compel the prosecution of criminal actions,” the unsigned Thursday opinion from the Court of Appeals states.
     The case stemmed from protests in Albany that began in fall 2011, sparked by demonstrations over income inequality that gained momentum in New York City with Occupy Wall Street.
     Albany County District Attorney David Soares made headlines late that year when he said he would not prosecute peaceful protesters arrested on trespass or curfew violations.
     Though the announcement by Soares led to the dismissal of many cases in Albany City Court, police arrested four men the following June for disorderly conduct after marchers clogged city streets. One of the men also was charged with resisting arrest.
     When City Judge William Carter denied a motion to dismiss those cases, the DA’s office offered each defendant a six-month adjournment in contemplation of dismissal. Carter refused to accept the pleas unless they were combined with community service, a condition the four men rejected.
     Soares then told Carter he was discontinuing the prosecution, but the judge rejected his notice. A stalemate ensued until a May 2013 suppression hearing, at which the DA’s office indicated it planned to call no witnesses.
     Carter accused Soares of willfully refusing to participate, and threatened to use his contempt powers against the DA’s office.
     Soares then sought a writ of prohibition against Carter from Albany County Supreme Court. The court granted a limited writ to enjoin the judge from compelling the DA’s office to call witnesses.
     The Appellate Division’s Third Department in Albany affirmed the writ last year, a decision that the Court of Appeals upheld Thursday, noting a writ can be used to restrain a lower court or judge on an issue over which they have jurisdiction.
     The instrument is “extraordinary,” though, requiring that a petitioner show the challenged action was “in reality so serious an excess of power incontrovertibly justifying and requiring summary correction,” according to the unanimous memorandum.
     In the Occupy case, “where the court assumes the role of district attorney by compelling prosecution, it has acted beyond its jurisdiction,” the judges said.
     “Thus, issuance of a writ here to preclude a limited ultra vires act was appropriate,” they added. “Any attempt by the judge here to compel prosecution through the use of his contempt power exceeded his jurisdictional authority.”
     Chief Judge Jonathan Lippman and Judges Susan Read, Eugene Pigott, Jenny Rivera, Sheila Abdus-Salaam and Eugene Fahey concurred.
     Having sat on the lower appellate panel that ruled on the case last year, Judge Leslie Stein took no part.
     During oral arguments before the high court in March, the judges seemed baffled that the case had gotten as far as it did.
     “What is this, a test of wills between the DA and the judge? What’s really underlying all of this?” Lippman asked Carter’s attorney at one point, according to a transcript on the court’s website.
     Said Fahey, “It seems to me that legally this case is a case of the laws of physics where an irresistible force meets an immoveable object.”

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