May 19, 2009 NYLJ: Newspaper Subpoenas 9 Judges

NY Post Subpoenas Nine Judges in Libel Case Brought by Another NY Judge
The New York Law Journal by Mark Fass - May 19, 2009 

As part of its defense against a libel action brought by a state court judge, the New York Post has subpoenaed nine current and former Brooklyn judges, including four former administrative judges. Brooklyn Supreme Court Justice Francois Rivera filed the libel suit in 2006, claiming the Post defamed him in a series of four articles published in October 2005, which stated that the judge had allegedly paid Brooklyn Democratic Party officials $50,000 for his seat. The first three articles also reported that "sources" had said the judge testified before a grand jury regarding other judges in return for immunity.  Specifically, the stories claimed that numerous insiders said Justice Rivera sought easier treatment from prosecutors by testifying about judges who paid then-party leader Clarence Norman for their seats on the Brooklyn bench. Mr. Norman is serving a three-to-nine year prison term after being convicted at three separate trials of soliciting illegal campaign contributions, stealing a check intended for his campaign and forcing a court candidate to use favored vendors. Last year, Justice Rolando T. Acosta, who was then a Manhattan Supreme Court judge, ruled that the Post could not question Justice Rivera regarding his grand jury testimony - key evidence in the Post's case, if it asserts truth as a defense to libel.  The Post has now subpoenaed nine judges as part of its attempt to show either that the stories were true, or that the paper did not act with malice, the standard Justice Rivera, as a public official, must satisfy. It is not clear what role or knowledge, if any, the subpoenaed judges may have had.

The nine judges and their present titles are:

• Ann Pfau, the state's chief administrative judge;
• Michael Pesce, presiding justice, Appellate Term, Second and Eleventh Judicial Districts;
• Ariel Belen, justice, Appellate Division, Second Department;
• Abraham Gerges, Brooklyn Supreme Court justice.
• Yvonne Lewis, Brooklyn Supreme Court justice.
• David Schmidt, Brooklyn Supreme Court justice.
• Leon Ruchelsman, Brooklyn Supreme Court justice.
• Arthur Schack, Brooklyn Supreme Court justice.
• Edward Rappaport, former Brooklyn Supreme Court justice.

The Post also subpoenaed Luz Bryan, the chief of security for the Brooklyn Supreme Court. Justice Schack yesterday called the subpoenas "a waste of time." "To me, it's one big fishing trip. I'll send them a rod," Justice Schack said in an interview, noting that the misconduct alleged in the Post's articles would have taken place before he joined the bench in 1999 and before he met Justice Rivera shortly thereafter. "I have nothing to offer the case."  The Office of Court Administration filed a motion to quash the subpoenas, arguing they were facially defective and that they did not comply with the special rules applicable to discovery from high-level state officials. "CPLR 2307 provides that a subpoena seeking documents from an officer of the State must be so-ordered by a Justice of the Supreme Court, based upon a motion on notice to the State officer, and CPLR 3120(4) makes clear that this requirement also applies to a discovery subpoena," Deputy Counsel John Eiseman wrote in a memorandum in support of the motion. "Accordingly, a subpoena duces tecum served upon a nonparty State officer in conjunction with a deposition subpoena must comply with the motion-on-notice provisions of CPLR 2307 and CPLR 3120(4)." The subpoenas represent just the latest twists in the three-year-old litigation.  Slade R. Metcalf and Katherine M. Bolger of Hogan & Hartson represent the Post. Mr. Metcalf declined to comment on the subpoenas. A spokesman for the OCA also declined to comment. Stuart A. Blander of Heller, Horowitz & Feit represents Justice Rivera. Justice Schack did see one silver lining to being subpoenaed. "I haven't had a pay raise. I could use the $18 deponents are paid for testifying," he said.