With Spineless Leaders, He said-She said Continues

NY Judge Faults Senate Suits in Spitzer Case as "Shameful" Waste of Resources
The New York Law Journal by Joel Stashenko - October 27, 2008

A state judge concluded the politically charged litigation between the state Senate and former Governor Eliot Spitzer last week, but not before condemning the parties for their "cavalier" and "shameful" wasting of court time and taxpayer money. State Supreme Court Justice Emily Jane Goodman in Manhattan ordered that the proceedings be discontinued, with prejudice, pursuant to stipulations of discontinuance submitted to the court by the litigants earlier this month. However, the judge complained that judicial and non-judicial staff in her chambers had spent "considerable" time and effort between August, when she got the case after Supreme Court Justice Richard F. Braun recused himself, and October, pouring through the voluminous briefs to prepare for a scheduled Oct. 16 hearing. On Oct. 7, however, Justice Goodman wrote that her chambers was informed that stipulations of discontinuance were about to be filed with the court to end the litigation in Matter of Office of the Governor of the State of New York v. Winner, 406848/07 and Matter of Dopp v. Winner, 114958/07. "Now it appears the effort was a shameful waste of public resources and took precious time from other matters," she wrote. "No comment is necessary concerning the considerable fees paid by the public to private law firms litigating this matter on behalf of the Legislative and Executive bodies. . . . While it is always the Court's goal to end conflict, the cavalier use of Court time and public resources is less welcome."

Justice Goodman wrote that the motion practice in the litigation between the Senate and the Spitzer administration "underscores the low regard" the executive and Senate have for the Judiciary. Republicans in the Senate majority had sought to subpoena e-mails, BlackBerry messages and other internal communications related to efforts by the Democratic Spitzer administration to use the state police to gather records on state-funded travel by Mr. Spitzer's former chief rival, Senate Majority Leader Joseph Bruno. Mr. Spitzer and Darren Dopp, the governor's one-time communications director, moved separately to quash subpoenas for the information issued by Senator George H. Winner Jr., R-Elmira, chairman of the Senate Committee on Investigations. Mr. Spitzer's attorneys argued that the Legislature does not have the power to subpoena the governor's office and that many of the materials were privileged. Mr. Winner on Friday said Senate Republicans favored dropping the litigation because the internal documents they sought had been released earlier this year after investigations of the Spitzer administration activities by the Commission on Public Integrity and Albany County District Attorney P. David Soares.

Both of those investigations would not have been mounted had it not been for the Senate's efforts to push for more information, Mr. Winner contended. "We prodded Public Integrity and Soares to at least do something," said Mr. Winner, R-Elmira. "Without our actions, none of these misdeeds by the governor's staff and the governor would have come to light." As for Justice Goodman's comments about wasteful litigation, Mr. Winner blamed Justice Braun for the length of the case. "The fact of the matter is, the arbitrary recusal of her colleague was the reason this has dragged on," Mr. Winner said. "We had briefed the case and held arguments before Judge Braun and we were waiting for a decision. Instead of a decision we got an arbitrary recusal." The urgency surrounding the Senate investigation dissolved following the abrupt resignation of Mr. Spitzer in March for patronizing a prostitute. Mr. Bruno has since retired. Senate Republicans said they spent $132,000 in taxpayer money to retain Washington, D.C., attorney Joseph E. diGenova of diGenova & Toensing to advise them on the Winner commission's investigation.

Governor David Paterson's office did not respond to messages seeking comment on Justice Goodman's ruling and an estimate of how much it cost the governor's office to fight the Senate subpoenas. A spokeswoman for Mr. Spitzer did not respond to a call for comment. Mr. Dopp was suspended by Mr. Spitzer last year and was never allowed to return to work for the state. He is now with an Albany lobbying and public relations firm. Mr. Dopp's attorney, Michael L. Koenig of Greenberg Traurig in Albany, declined comment Friday on Justice Goodman's criticism of the litigation but said he was grateful that Mr. Dopp's case against the Senate had been concluded. Mr. Dopp was found by the public integrity commission to have violated a provision of Public Officers Law by using his official position to secure unwarranted privileges from the state police for himself and Mr. Spitzer. Mr. Dopp has promised to challenge that finding at a hearing before a commission administrative law judge, though Mr. Koenig said Friday the commission has yet to schedule a date for that hearing.