The Worst Judges Money Can Buy

The System Is the Crime

Judicial Reports by Mark Lagerkvist - October 29, 2008
mark@lagerkvist.net

Judicial campaign committees around Albany are raising funds from law firms with business pending before the judge — and one firm is particularly generous. Supreme Court Appellate Justice Anthony J. Carpinello’s re-election campaign accepted a $10,000 gift in May from an Albany law firm that had recently appeared before him in court to argue a medical malpractice appeal. Three months after the contribution, which was disclosed in his campaign’s filings with the State Board of Elections, Carpinello cast a deciding vote in a 3-2 decision on the case, Caruso v. Northeast Emergency Medical Associates. He also wrote the majority opinion that could allow the firm, Powers & Santola, to collect as much as $200,000 in fees. The judge claims he was unaware of the contribution. “I’ve never done anything unethical in my life,” said Carpinello. “I follow the law, and I’m not supposed to know who contributes to my campaign.” The law firm, meanwhile, contends it would never give a campaign gift to a judge who could be influenced by it. “If this is somebody we think we can curry favor with by making a contribution, we won’t make the contribution,” said senior partner John K. Powers. “Because if we can curry favor, so can someone else. And that’s not somebody we want sitting on the bench.”

SERIAL SHILLING

If there is a guilty party, it is arguably the controversial process of electing judges throughout New York State. Lawyers are allowed to fork over campaign cash to judges running for re-election — even while they have cases pending before those judges. Gifts from attorneys account for roughly half of money raised by Supreme Court candidates, incumbents and challengers, for the coming election. Judges claim they are not influenced because court rules forbid them from learning who contributes to their campaigns or how much. However, details on donors are part of a public record readily available to anyone with an Internet connection.

“They’re not supposed to know who contributes money to them, but they’re also not idiots,” said Powers. “Now that it’s online, somebody’s going to mention to you, at some point, who contributed money.” For next Tuesday’s election, Justice Carpinello’s campaign has raised in excess of $238,000, more than any of the other 51 candidates running for Supreme Court seats across the State, according to its disclosures to the Board of Elections. “I am fighting for my professional career,” said Carpinello. “I’ve worked so hard to schedule my fundraisers – and I do attend because I’m permitted to be there.” A Judicial Reports investigation found that lawyers have handed out more than $116,000 to Carpinello, nearly half of the money raised by his campaign. His political committee has accepted 142 contributions from individual attorneys and 89 from law firms or partnerships, according to disclosures to State Board of Elections. Thirty-eight of the gifts from lawyers were for $1,000 or more.


THE POWERS & SANTOLA THAT BE

At the top of the list is Powers & Santola, a plaintiff’s firm that specializes in personal injury and medical malpractice cases. Its five partners and one associate frequently appear in the Supreme Court venues that surround Albany, including the Appellate Division’s Third Department, where Carpinello sits. And the firm is extraordinarily active on the campaign front, having given five-figure contributions to nine sitting Supreme Court justices, as well as Carpinello’s opponent.


Since 2004, Powers & Santola has doled out $157,725 in campaign cash to Supreme Court candidates in the firm’s primary area of practice, Judicial Reports found in an analysis of campaign filings. Those gifts included:

• $25,000 in 2004 to Presiding Appellate Justice Anthony V. Cardona of the Third Department;
• $20,125 last year to Albany County Supreme Court Justice Joseph C. Teresi;
• $15,000 in 2006 to Appellate Justice Karen K. Peters of the Third Department;
• $15,000 in 2005 to Appellate Justice Edward O. Spain of the Third Department;
• $10,000 last year to Saratoga County Supreme Court Justice Frank B. Williams (who is also Supervising Judge of the Third Judicial District); and
• $10,000 last year to Rensselaer County Supreme Court Justice George B. Ceresia, Jr. (who is also Administrative Judge of the Third District.)

That pattern continues in this year’s election. In addition to its gift to Carpinello, Powers & Santola has written five-figure checks to the following judicial campaigns:

• $10,000 to Schenectady County Supreme Court Justice Vito C. Caruso )who also serves as Administrative Judge of the Fourth District.)
• $10,000 to Saratoga County Supreme Court Justice Stephen A. Ferradino.
• $10,000 to Rensselaer County Court Judge Patrick J. McGrath, who is running against Carpinello for Supreme Court in the Nov. 4 election.

Justices Teresi, Peters, Spain, Williams, Ceresia and McGrath did not respond to calls from Judicial Reports. Through aides, Justices Cardona and Ferradino said they complied with court rules forbidding them from knowing any details about their campaign contributors in compliance. In an interview, Justice Caruso said that although he did see lawyers from Powers & Santola at two of his fundraisers this year, he does not know any details about the contributions from that firm or any other political donors.

“I really do maintain that wall between me and finding out,” said Caruso. “Anybody who wants to can go online and find out. Who’s stopping me, other than my own ethical feelings about it? People say to you, ‘Did you get my contribution?’ How the heck do I know? You look kind of foolish that you don’t know.” Caruso said he has never disqualified himself from a case because of a campaign gift, and that his court decisions could not be swayed by contributions, even if he did know who gave and how much. According to Powers, all of the solicitations from his firm were initiated by the judges’ political committees — which often regard the firm and its renowned political generosity as “low-hanging fruit” for their harvests of campaign cash. “I can’t speak for the judges, but if I were a judge, yes, I’d feel awkward about it,” said Powers. “I’d feel awkward about soliciting contributions from anyone. Because however you go about doing it, that is not going to be a perfect system from insulating you from the fact you’re trying to raise large sums of money over a short period of time.”

Also awkward may be the frequency with which Power’s firm appears in the courts of the judges it supports. Teresi, Ferradino, Ceresia, Caruso and Williams serve as trial-level Supreme Court Justices. Powers & Santola has appeared in their courts in a total of 35 cases during the past two decades, according to the New York State Unified Court System’s eCourts index. Powers & Santola has also appeared repeatedly before Judges Carpinello, Cardona, Spain and Peters in the Third Department of Supreme Court’s Appellate Division. In the past 11 years, the firm has argued 49 cases before the Third Department. In 47 of those instances, the panels of judges included at least one judge who would sooner or later accept a campaign gift of $10,000 or more from the firm. “In my view, we should have public financing of judicial elections because those are the people you want to have the most independence from even the taint of who’s giving the money,” said Powers. “But the reality is until we have that, the only people who are likely to make contributions to candidates are going to be lawyers.”

THE LATEST CONFLICT

The most recent Powers & Santola case before the Third Department was Caruso v. Northeast Emergency Medical Associates. The lead plaintiff was Thomas Caruso of Colonie, who claimed a hospital and emergency room physician failed to diagnose intracranial bleeding in 2001 that led to permanent neurological damage. The defendants were Ellis Hospital, Dr. Alex Pasquariello and Northeast, Pasquariello’s employer.

The case was settled before trial. Pasquariello agreed to pay Caruso $3 million. Ellis Hospital agreed to pay $1 million, plus assign Caruso its right to receive another $1 million, its anticipated indemnification payment from Northeast. However, Northeast refused to pay the $1 million, declaring Caruso had relinquished any rights to collect when he signed the general release in the settlement paperwork. In 2007, the trial court granted a summary judgment in Northeast’s favor. For Powers & Santola, it was a decision that could cost the firm an estimated $200,000 in lost contingency fees. The plaintiff appealed to the Supreme Court’s Appellate Division; the appeal was received by the Third Department on Oct. 15, 2007. A five-judge panel heard oral arguments on Jan. 18, 2008. Seven months later, on August 21, the case was decided by a 3-2 decision in favor of the plaintiff — and Powers & Santola.

The majority opinion, written by Carpinello, ruled that the general release was ambiguous. A dissenting opinion argued that the general release was valid. Northeast has petitioned the Appellate Division for leave to appeal to the State Court of Appeals; a decision has yet to be announced. Absent from the court record is the fact that Carpinello’s re-election campaign accepted the five-figure gift from Powers & Santola on May 13, while the case was being decided. Carpinello asserted that he has never disqualified himself from any case because of political contributions because he said he has no knowledge of those gifts. Sources confirmed that the issue of recusal was not raised in the Caruso appeal. “He probably doesn’t know it,” said Powers. “And if he does know it, he also knows I gave $10,000 to his opponent [Rensselaer County Court Judge Patrick J. McGrath]. Or maybe he knows that I gave $10,000 to his opponent but not [about] the $10,000 to him. I don’t think those things make a difference one way or another. “Is there a chance of [negative] public perception? I guess. Do those who contribute get some sort of favored treatment? If you’re talking about certain boroughs of New York City, that already exists…but it doesn’t happen up here.”