Newspaper Gets Wish to Depose Pfau and 7 Judges Under Oath

New York Post's Bid to Depose Judges in Libel Suit Upheld
The New York Law Journal by Daniel Wise  -  May 16, 2011

Over the objections of the state court system, eight judges, including Chief Administrative Judge Ann Pfau, have been ordered to comply with subpoenas served by the New York Post requiring the judges to be deposed.  The Post is seeking the judges' testimony as part of its defense of a defamation suit brought by Brooklyn Justice Francois A. Rivera who claims he was maligned in four articles published by the Post, which reported in October 2005 that the judge was under investigation by the Brooklyn District Attorney's Office for allegedly paying $50,000 to buy a Democratic nomination to the Supreme Court.  Justice Milton A. Tingling in Rivera v. NYP Holdings, 114858/06, said the judges are required to answer questions under oath regarding the truth of the Post articles and the extent of injury they caused to Justice Rivera's reputation.  The Office of Court Administration, which moved to quash the subpoenas as overbroad and seeking opinion and conjecture rather than fact, "is not at the moment inclined to appeal" the April 12 ruling, said OCA Counsel John W. McConnell.  Mr. McConnell added, "we will closely monitor the depositions and take necessary steps to insure that our judges are appropriately represented."  Justice Tingling specifically noted that, while he was requiring compliance with the subpoenas, the judges and others who received third-party subpoenas are not constrained from asserting privilege as a basis for not answering questions when they are deposed.  The Post articles were published several weeks after then-Assemblyman Clarence Norman, who at the time was head of the Democratic party in Brooklyn, was convicted for campaign-finance violations.  With Brooklyn District Attorney Charles J. Hynes pressing Mr. Norman to divulge information about candidates paying bribes to obtain nominations for judgeships in Brooklyn, the Post reported that Justice Rivera had testified before a grand jury about other "alleged dirty jurists" after being "given an immunity deal."  The articles said that Justice Rivera was one of as many as 10 judges "targeted" with paying bribes to receive Democratic nominations to the bench, which meant that their elections were virtually assured in overwhelmingly Democratic Brooklyn. The Post reported that Justice Rivera had "allegedly bought his seat for $50,000" when he ran for election in 1996.  One of the articles also stated that the state Commission on Judicial Conduct was looking into allegations that Justice Rivera had stated he was from Brooklyn when he ran for the judgeship when he actually lived in Queens. Justice Rivera, who sits on the bench in Brooklyn, has never been charged with a crime by the Brooklyn District Attorney's Office and has never been publicly sanctioned by the conduct commission. Until a public sanction is issued, commission proceedings are confidential.

Basis for Testimony

In addition to Judge Pfau, the judges who have received subpoenas are Appellate Division, Second Department Justice Ariel Belen; and Brooklyn Supreme Court Justices David Schmidt, Michael L. Pesce, Arthur M. Schack, Yvonne Lewis, Leon Ruchelsman and Brooklyn Surrogate Margarita López Torres.  Justice Tingling rejected OCA's challenge that the subpoenas were overbroad and seeking opinion, finding that Justices Belen, Ruchelsman and Surrogate López Torres could provide testimony relevant to the truth of statements. The remaining judges, he further ruled, could offer testimony relevant to any damage to Justice Rivera's reputation.  The subpoena issued to Judge Pfau seeks information on whether the articles played a role in her decision not to promote Justice Rivera to two posts he sought.  Justice Tingling said that Justice Rivera is entitled to inquire whether she considered the Post reports when she chose Justice Belen over Justice Rivera for the posts of administrative judge in charge of civil cases in Brooklyn Supreme Court and on the Appellate Term in Brooklyn.  Also, he noted that Justice Rivera had testified that he and Justice Belen became judges the same way and that Justice Belen "has information about the D.A.'s investigation into Brooklyn judges."  Justice Rivera had not mentioned Surrogate López Torres at his deposition. Nonetheless, Justice Tingling found that as the plaintiff in New York State Board of Elections v. López Torres, 552 U.S. 196 (2008), which unsuccessfully challenged New York's convention system for nominating Supreme Court justices, Surrogate López Torres is "intimately familiar with the workings of the Brooklyn political system" and can provide information about "who would have received Rivera's alleged $50,000 bribe."  The Post had also issued a subpoena to the Brooklyn District Attorney's Office seeking the minutes of Justice Rivera's grand jury testimony. Justice Tingling quashed that subpoena, observing that "the confidentiality of Grand Jury proceedings, carefully cultivated and culled throughout our jurisprudential history, would be negatively impacted by the release of Grand Jury testimony in a private defamation suit."  Justice Tingling similarly wrote that the records of the judicial conduct commission are immune from compelled disclosure because confidentiality is the "cornerstone" of the commission's operations. However, he noted that both the Post and conduct commission had withdrawn their motions regarding the enforceability of that subpoena, leaving the issue for another day.

Earlier Ruling

More than two years ago, Justice Tingling had disallowed interrogatories issued by the Post which would have required Justice Rivera to disclose whether he had been questioned by the conduct commission or if he had testified before a grand jury.  That ruling, however, was reversed by the Appellate Division, First Department, in an unsigned, two-paragraph decision in June 2009. The panel said a "liberal" construction should be given to the Post in defining the range of its discovery.  Specifically, the panel held that the information sought from Justice Rivera concerning his dealings with the grand jury and commission is "sufficiently material and relevant to the defense of the action to warrant disclosure."  In the wake of the First Department's ruling, the Post served 29 subpoenas on third parties and sought documents directly from the district attorney's office and the commission.  The Post is the only party so far to file a notice of appeal of Justice Tingling's most recent decision. One of the Post's lawyers, Katherine M. Bolger of Hogin Lovells, said her client intends to appeal the decision to quash the subpoena for grand jury minutes.  Stuart A. Blander, of Heller Horowitz & Feit, who represents Justice Rivera, declined to comment on whether his client would appeal the portion of the judge's ruling allowing the third-party depositions to proceed. He did state, however, that no depositions have been scheduled.  In the meantime, Justice Tingling directed the two sides to attend a conference scheduled for today.  Daniel Wise can be reached at dwise@alm.com.