NY Judge Dumps Stock, Won't Recuse Himself

NY Judge Dumps Stock, Won't Recuse Himself
The New York Law Journal by Mark Fass - May 15, 2008

A Brooklyn federal magistrate judge who discovered that his financial adviser had purchased shares of Visa Inc., "contrary to [his] instructions," has declined to disqualify himself from a class action against Visa, MasterCard and a number of the country's largest banks. In a decision Monday, Magistrate Judge James Orenstein stated that he learned of the April 25 investment on Saturday, May 10, and sold the shares "at the opening of the business day" on Monday. He did not state how many shares were purchased, nor if or how much the investment may have earned. He did, however, declare the investment too insubstantial to require his disqualification, citing the 2002 decision by the U.S. Court of Appeals for the Second Circuit, In re Certain Underwriter, 294 F.3d 297. As the Second Circuit has recognized, "Congress amended the [recusal] statute because it was 'troubled by the outcome' of a case in which a judge was forced to recuse himself after extensive work on a class action case after discovering a financial conflict of interest," Magistrate Judge Orenstein wrote in In re Payment Card Interchange Fee, 05-MD-1720.

"I conclude that this case, like the one before the court in In re Certain Underwriter, 'falls squarely within the situation envisioned by Congress - a . . . judge with a minor interest in a class action lawsuit discovered after assignment, who quickly divested [him]self of the conflicting interest.'" The plaintiffs in the underlying case claim that a handful of the nation's largest banks "unlawfully fix the fees charged to merchants for transactions over the Visa and MasterCard Networks and enact restrictions that prevent merchants from protecting themselves against those fees." The Judicial Panel on Multidistrict Litigation transferred the case to Eastern District Judge John Gleeson in October 2005. Judge Gleeson reassigned the case to Magistrate Judge Orenstein one month later. Nearly 30 months into the massive case - the court's electronic filing system lists 125 pages of attorneys and 973 individual filings - the magistrate judge discovered he owned shares in one of the defendant companies. The same day he sold off the Visa shares, Magistrate Judge Orenstein released the present decision.

"In the interest of bringing this matter to the parties' attention as quickly as possible," he wrote, "I have not solicited the parties' views before making the decision to remain assigned to the case." Magistrate Judge Orenstein found that two elements that determined the Second Circuit's decision in In re Certain Underwriter applied in the present case as well: He has devoted "substantial judicial time" to the matter and his investment did not create "an interest that could substantially be affected by the outcome." He concluded, "Because I owned Visa shares for such a short period of time and made no substantive rulings in this case during that period, I conclude that divestiture is a sufficient alternative to disqualification." The judge added that he would entertain motions for disqualification on the basis of his investment in Visa if filed by June 11. Calls to numerous attorneys involved in the case were not returned.

Judge Packing Gun Scared of Bailiff

Judge Packing Gun at Work Says He's Scared of Bailiff
New York Lawyer - May 15, 2008
TROY, Ohio (AP) _ A judge has begun carrying a gun at work after ordering a court employee to stay away from him. Miami County Municipal Court Judge Mel Kemmer filed an order last month banning bailiff Scott Niesley from his courtroom and chambers, his assistant's office or anywhere else the judge is in the courthouse. The county sheriff's records show that Niesley made a verbal threat against the judge and four other court employees to another bailiff in January. No criminal charges were filed. But Kemmer says he fears Niesley and thinks he should have been fired instead of getting a two-week suspension and counseling. Several messages for Niesley seeking comment were left at the court Thursday.

NY Daily News Editorial: Unfit for the Bench

Judges out of order
EDITORIAL - The New York Daily News - May 13, 2008

The state Commission on Judicial Conduct Monday issued an unusual and welcome statement warning judges not to court trouble by refusing to handle cases involving state legislators. New York's judiciary is aggrieved that the Legislature - actually Speaker Sheldon Silver's Assembly - is denying the jurists a pay raise after nine years of going without. And the judges are right to be angry that Silver is holding their incomes hostage to a pay hike for his members.

Chief Judge Judith Kaye has filed suit to force the Legislature to act, but some of her colleagues have taken to bowing out of matters when a legislator or a legislator's law firm shows up in a case. They are engaging in peevish payback that's unfit for the bench. The judges have right on their side. They should keep it that way. 

Chief Judge's Conflicts-of-Interest Results in Ouster

What I Did on My Summer Vacation . . . : Top Judge Out Over Getaway Photos
The New York Law Journal by Lawrence Messina - May 14, 2008

CHARLESTON, W.Va. (AP) _ West Virginia's top judge will be out a job after a conflict-of-interest scandal involving an exotic vacation with a coal company boss derailed his bid for another term. Chief Justice Elliott "Spike" Maynard finished third in a field of four candidates in the state's Democratic primary Tuesday, following an uproar that began in January when photos surfaced showing him vacationing in Europe with the chief executive of Richmond, Va.-based Massey Energy Co. The company had cases before the court.

"The voters have spoken and it appears we've lost the race," Maynard said. "I want to thank the people of West Virginia for allowing me the great privilege and honor of serving them as a judge and justice for nearly 28 years." The Democratic justice had raised the most money in a race where he was once considered a shoo-in. Maynard, 65, lost to former Justice Margaret Workman and Huntington lawyer Menis Ketchum. They will face Charleston lawyer Beth Walker, the only Republican to file, in the fall for the two open seats on the state's highest court. The photos showed Maynard on a 2006 Monaco vacation with Massey chief executive Don Blankenship. At the time, the nation's fourth-largest coal producer by revenue had cases either pending with or heading to the court on appeal. In one picture, the men are sitting side by side, smiling over empty glasses at a cafe along the Riviera as the Mediterranean sun sets behind them. In others, they are posing by the seaside.

Both men have said they paid their own way on the trip. Blankenship has said the two have known each other about 30 years and socialize a few times a year, but that it was the first time he met up with Maynard on vacation. "The appearance is overwhelming," said Bruce Green, director of the Louis Stein Center for Law and Ethics at Fordham Law School. "The photos make the relationship obvious and undeniable." Maynard blamed the furor on political foes and said his friendship with Blankenship had not affected his impartiality on the court. He removed himself from pending Massey cases after the photos surfaced and later said he wouldn't consider any future case involving Massey.

Class-Action Lawsuit Over Cuomo's Corruption Clean-Up

Class-action lawsuit in state pension cases?
Lawyer says he is preparing to challenge the stripping of credits
The Albany Times Union by by RICK KARLIN - May 14, 2008

An Albany lawyer is preparing a class-action lawsuit to try to stop Attorney General Andrew Cuomo and Comptroller Thomas DiNapoli from stripping pension credits from lawyers who state officials say don't deserve them.
The lawsuit will likely be filed later this week in state Supreme Court in Albany County and will seek restraining orders against Cuomo and DiNapoli, said lawyer James Roemer, who specializes in public sector employment issues.

While he wouldn't immediately divulge details of his legal strategy or name the initial plaintiffs, Roemer said he's representing four individuals from Long Island who have lost pension credits during the past few weeks. Roemer said he believes thousands of lawyers could potentially join the suit, given the many private attorneys who work for government entities, including towns and villages, school boards and utility districts, and who have enrolled in the state pension system. Cuomo and DiNapoli say lawyers in private practice generally shouldn't get public pensions. "We've been working on this project, if you will, for almost a month and we've dubbed it 'Operation Pushback,' " said Roemer who is with the Roemer Wallins & Minneaux. He also is working with members of the DeGraff, Foy and Kunz firm.

For the past few weeks, following reports of alleged pension fund abuse reported in the Long Island newspaper Newsday, DiNapoli and Cuomo have been investigating lawyers who've worked for government organizations, starting with school districts and BOCES. So far, DiNapoli has suspended about a dozen people from the pension system or stripped them of their retirement credits, saying they should have been categorized as independent contractors rather than employees. And Cuomo last week got settlements worth $100,000. But Roemer, 63, who himself draws a six-figure pension for his work for a number of Capital Region municipalities, contends that the pensions are justified. "For 70 years plus, this has been authorized," Roemer said, explaining that no one from the comptroller or other office had questioned the practice until now. Cuomo spokesman John Milgrim said his office couldn't comment since the legal action hasn't been filed.

DiNapoli spokeswoman Emily DeSantis predicted the comptroller would withstand any challenge. "These individuals were not entitled to that service credit because they acted as independent contractors, not employees," she said of those who've lost their credits. "We are confident that our determinations will be upheld." Roemer has been one of the central characters in the pension controversy. His situation was detailed in a 1997 Times Union story that disclosed how he had accrued $80,240 in annual pension credits for his work as a labor contract negotiator for the cities of Utica, Schenectady and Saratoga Springs, as well as the town of Colonie and Schoharie and Sullivan counties. By the time Roemer started collecting his pension in 2001, it was worth $119,874 a year, according to state records. While Cuomo hasn't publicly commented on Roemer's case in particular, his situation fits what the attorney general said is a pattern in which lawyers statewide have improperly gathered pension credits.

Essentially, Cuomo and DiNapoli say, these lawyers as well as some other professionals didn't meet commonly recognized conditions for being considered employees. Those conditions include having one's own place to work, being directed by a supervisor and keeping regular hours. Roemer maintains he and others meet that threshold. "You don't need a desk and a telephone to be considered an employee," Roemer said. He has set up a Web site for people looking to learn more about the lawsuit, at http://snysr.com, although as of Tuesday evening it was still under construction.   Karlin can be reached at 454-5758 or by e-mail at rkarlin@timesunion.com. James M. Odato contributed to this story.

NY Judges Get Commission Warning

Recusals Could Lead to Discipline, Conduct Commission Forewarns
Also Backs Efforts To Win Raise for Judges
The New York Law Journal by Daniel Wise - May 13, 2008

The Commission on Judicial Conduct yesterday warned the state's 1,300 judges that using recusals to protest legislative inaction on a pay raise could result in disciplinary action. The commission's statement cited 10 different sections of the Rules Governing Judicial Conduct that could be implicated when judges refuse to handle cases where parties are represented by lawmakers or their law firms. The warning was issued despite what the commission called "the judiciary's understandable disappointment at the continuing compensation impasse."

The agency also endorsed a pay raise for the judges as "well deserved and long overdue." The statement was adopted by the commission at its monthly meeting last week. The warning reinforced a similar caution issued earlier this month by Chief Judge Judith S. Kaye (NYLJ, May 2). Although opinions by the court system's Advisory Committee on Judicial Ethics allow judges to recuse themselves as a matter of "individual conscience," Chief Judge Kaye in an e-mail to all state judges cautioned that use of recusals as a "strategy" could "hurt our cause." In warning the judges of the potential ethical repercussion of recusals, the judicial conduct commission noted that it was acting in the wake of "recent published reports that at least some judges are encouraging or engaging in acts of recusal" out of a purported "frustration over the compensation issue." Within the last two weeks, news reports have said at least seven judges either have recused themselves or openly mused about it. They sit in counties as diverse as Nassau, Orange, Cattaraugus and Erie.

In addition, Steven Schlesinger, the managing partner of Long Island-based Jaspan Schlesinger Hoffman, which has two legislators as members, said yesterday that about 25 judges had refused to handle the firm's cases and that the number has grown in the last two weeks. In its statement, the conduct commission noted that it would not benefit the judges' "justifiable interest" in a pay raise for "the Commission to be constrained to consider complaints against judges" alleging violations of the 10 cited conduct code provisions or others. Robert H. Tembeckjian, the commission's counsel and administrator, declined to comment on whether the agency has received any complaints or is itself examining the recusals. The commission, however, called on "all parties with a role to play" to do so "responsibly, professionally and with the utmost sensitivity to promoting public confidence in the independence, integrity and impartiality of the judiciary."

Independence Stressed

In backing a pay raise, the commission also stressed the need to preserve the independence of the judiciary. It warned that without "fair compensation," the ability to maintain a bench of talented and honorable men and women," a critical element of the democratic system of checks and balances, may come under "acute" strain. The claim that the toll taken by inflation on judicial salaries, which have not been raised since January 1999, has compromised judicial independence, is central to three pay raise lawsuits, including one brought by Chief Judge Kaye on behalf of the court system. The lawsuits also contend that judicial independence has been compromised by the tying of judicial raises to extraneous issues such as raises for lawmakers, who also have not had a raise since 1999.

The commission expressly noted in its statement calling for enactment of "an appropriate judicial compensation measure" that it was doing so "without comment on the merits" of the pending lawsuits. Chief Judge Kaye's lawsuit seeks an order raising the salary of Supreme Court justices from $136,700 to the $169,300 now being earned by federal District Court judges, with the salaries of judges from other state courts to be adjusted proportionately.

Code Provisions Cited

Among the conduct code provision that could be implicated in a recusal, the commission noted, were those requiring judges not to "use the prestige of judicial office to advance a private interest, Rules §100.1, and barring any "pledges or promises" inconsistent with the impartial performance of their duties, Rules §100.3(B)(9)(a,b).

Two recent opinions by the ethics advisory committee concerning questions related to recusals when dealing with legislators' firms expressly mentioned that judges must recuse themselves when they are convinced they can not be fair (Opinion 08-76 [April 24, 2008] and Opinion 07-190 [Dec. 6, 2007]). In Opinion 08-76, however, the advisory committee concluded that Chief Judge Kaye's filing a lawsuit in her official capacity on behalf of the court system did not require judges to recuse themselves from cases involving lawmakers. To the contrary, the committee concluded judges must hear those cases if they believe they can be fair. In an earlier opinion, the advisory committee concluded that judges should not recuse themselves solely because of the "long standing issue of judicial salary increases pending before the Legislature" (Opinion 07-25, Feb. 22, 2007).

Act of Conscience Asserted

Cattaraugus County Judge Larry M. Himelein (See Profile), who was widely quoted as saying he has recused himself from cases involving Weitz & Luxemburg, a firm with which Assembly Speaker Sheldon Silver, D-Manhattan, is affiliated, said in an interview yesterday he had acted "absolutely" as a matter of individual conscience. Since "I recused myself from a case where I owned 100 shares of stock in one of the parties," he said, "how could there not be a conflict if I were to sit upon a case involving a firm of one of the lawyers who sets my salary?" Judge Himelein serves as Cattaraugus County's judge for County, Family and Surrogate's courts. With respect to his widely published quote calling Mr. Silver "a slug," Judge Himelein said the statement was not made directly to a reporter but in an e-mail to other judges that had been leaked to the press. Sullivan County Court Judge Frank J. LaBuda (See Profile) had been reported to be considering recusing himself because of the chief judge's lawsuit prior to the advisory committee's issuing its opinion that recusal was not mandated.

Since that opinion was issued on April 24, Judge LaBuda has decided to handle cases involving the law firms of legislators, according to his law clerk, John Diuguid. Mr. Diuguid, however, said Judge LaBuda, who sits in County and Surrogate's courts, could not be reached yesterday. Mr. Diuguid also said he was unaware of the reason Judge LaBuda had against recusal. David Bookstaver, a spokesman for Chief Administrative Judge Ann Pfau (See Profile), said it would be inappropriate for her to comment on the conduct commission's statement. — Daniel Wise can be reached at dwise@alm.com.

Possible End to Selective Law Enforcement in Manhattan

Ex-judge wants Morgenthau rematch
The New York Daily News by ELIZABETH BENJAMIN - May 12, 2008

Ex-judge Leslie Crocker Snyder has Manhattan District Attorney Robert Morgenthau in her sights - again. The 2009 elections are well over a year away, and the 2008 presidential contests are yet unsettled. But Crocker Snyder, a former state Supreme Court judge who failed to unseat Morgenthau in a 2005 Democratic primary, is gearing up to formally kick off her rematch bid. She will host her first big fund-raiser at the New York Athletic Club on June 23. Tickets start at $500, with a goal of raising $150,000-$175,000. "You have to start early because, unfortunately, politics seems to revolve in large part to how much money you can raise," said Crocker Snyder. "It's a shame that a position like the DA's office requires that."

She raised some $2 million in 2005 to Morgenthau's $1.3 million, but suffered a decisive 59%-41% primary loss. It was Morgenthau's first significant challenge since 1985 and most of the Democratic establishment lined up behind him - even after The New York Times endorsed her. Mayor Bloomberg's pollster Doug Schoen is working with Crocker Snyder but is not yet on her payroll. Crocker Snyder, 66, said the DA's office needs to be "modernized from top to bottom" - a not-so-subtle dig at the fact Morgenthau will be 90 in 2009 and has held his post since 1975. Morgenthau and his aides have worked to quell rumors he won't seek reelection next fall, holding fund-raisers that have given the DA a healthy $525,802 balance in his campaign account as of January.

Speculation has continued, in part because Morgenthau's former protégé, Cyrus Vance Jr., has started a campaign committee and is raising cash. Vance and others have so far said they won't run against Morgenthau out of "respect." Crocker Snyder, who started fund-raising a few weeks ago, sees no need for such niceties. "He has been outraged [that] anyone would have the temerity to run against him," she said. "Anyone who wants to run should run."  ebenjamin@nydailynews.com

Albany Times Union: New York Ethics panel works in secret

Ethics panel works in secret
Commission keeping eye on legislators works behind closed doors, in consultation with lawmakers' counsel
The Albany Times Union by IRENE JAY LIU - May 11, 2008

ALBANY -- A special commission that legislators claim is their "independent" ethics watchdog is anything but, a monthlong Times Union investigation has found. In practice, the Legislative Ethics Commission is an extension of the legislators' own team of lawyers, particularly the counsels of the majorities -- the Senate Republicans and Assembly Democrats. The commission's staff is hired by and regularly consults with the legislative lawyers. They draft recommendations behind closed doors, long before the commission's appointed members sit down for an official vote. The commission's co-chair, a Senate representative, signs the staff's paychecks. The commission is in a suite of Senate majority offices in the Alfred E. Smith state office building.

"Part of the problem here, since it's not independent and it's secret, it's the worst of both worlds," said Blair Horner, legislative director for the New York Public Interest Research Group. "It's the legislators self-policing in New York, so that doesn't inspire confidence." The commission's duties include "administration and enforcement" of the Public Officers Law for members and employees of the Legislature and candidates for state legislative office. It issues advisory opinions, investigates complaints and keeps financial disclosure statements of elected officers and candidates. Few activities are made public. Like its predecessor, the Legislative Ethics Committee, it operates in secrecy. Advisory opinion requests and responses are not subject to the state's Freedom of Information Law. Investigations of complaints aren't made public unless a "notice of probable cause," a formal finding that wrongdoing may have occurred, is issued.

In the nearly two decades the ethics panels have existed, not one such notice has been issued, said Melissa Ryan, executive director and commission counsel. Financial statements are available to the public, but dollar amounts are redacted. Filers don't have to certify "under penalty of perjury" that their disclosures are accurate. The commission also provides guidance on ethics laws through advisory opinions to legislators, staff and candidates. The development of the advisories provide a window into the commission's secrecy, lack of independence and significance of the commission's decisions on civil or criminal cases. Based on interviews with people involved with the commission, some of whom would speak only on condition of anonymity, a picture of its inner workings emerges.

When legislators or staff members want guidance on the ethics law, they often seek informal advice from the commission, Ryan said. But if the issue is complex or doesn't have precedence, Ryan said she will suggest the person request a formal advisory opinion. The person seeking an advisory opinion makes a written request, often hand-delivered to the commission, according to a person familiar with the commission operations. All the correspondence from the commission is hand-delivered, possibly to avoid mail fraud prosecution, the person said. Federal prosecutors frequently use statutes that outlaw mail fraud to prosecute public corruption cases involving elected officials. Ryan said hand deliveries are simply more convenient.

"Why would I mail? They're right here," said Ryan, pointing out an office window to the Capitol across the street. After a request for a formal advisory opinion, Ryan, as counsel, will draft an advisory opinion. It goes to four legislative lawyers, one from each party in each house, in sealed envelopes marked confidential, according to several people familiar with the commission. The lawyers review the draft and discuss changes but no written record of the meeting is kept. Previous drafts of opinions are destroyed to prevent confusion, Ryan said. For many years, no meeting could be held without a longtime committee member from the Senate majority, former Sen. James Lack, according to a source close to the committee. Lack, who served on the committee from its inception in 1989 until he retired in 2001, was described as the person who "seemed to be in charge," according to the source. Lack, now a Court of Claims judge, did not return a call for comment Friday.

A day or two before the meeting, binders with the agenda and related documents, including the draft advisory opinions, are hand-delivered to members. At the meeting, commission members and conference lawyers vote to accept or reject the opinions, or hold off voting if changes are needed. According to Ryan and commission co-chair Sen. Andrew Lanza, R-Staten Island, about half the time advisory opinions are passed as is. Most changes are minor, Ryan said. Not every draft opinion makes it to the commission. After the legislative lawyers and Ryan finalize an opinion, the counsel will advise the legislator of the outcome. Legislators can withdraw their requests for any reason, including the prospect that they don't like what the draft says. Once the commission votes on the opinion, it is legally binding. Since 2000, 15 out of 94 requests for opinions have been withdrawn. "If it really stunk, their lawyer would tell them to withdraw the request," said Assemblyman Jack McEneny, D-Albany, a former co-chair of the Legislative Ethics Committee.

If an opinion has already been printed and put in the commission's binders and a legislator then asks to withdraw it before a vote, the draft is removed and replaced by a blank sheet of paper, according to a source familiar with the commission. Ryan said the main reason opinions are withdrawn is because the question "becomes moot" and that "usually they get withdrawn before the opinion is drafted." Lanza said the withdrawal of unfavorable opinions has "not been my experience at all." Ryan says it is important that withdrawn opinions remain confidential. "We don't want them to fear that if they asked for an opinion and it said no, that it would come out," said Ryan. A favorable opinion, on the other hand, has great value. Under state law, "such opinion ... may be introduced and shall be a defense in any criminal or civil action."

But while an opinion can be a strong defense, its strength depends on the integrity of the process that generated it, Columbia Law school professor and former assistant U.S. Attorney Daniel Richman said. "Certainly to the degree that there was collusion between the legislator and the commission in the creation of the opinion, I wouldn't give it much faith in a good-faith defense," Richman said. Federal authorities, for example, are examining the process by which Senate Majority Leader Joseph L. Bruno may have received authorization from within state government for his private business dealings, according to sources with knowledge of the investigation.

The FBI is looking at several opinions Bruno received more than a decade ago from the then-Legislative Ethics Committee. The Commission on Public Integrity, which governs the executive branch, state employees and lobbyists, regularly publishes advisory opinions, with the names redacted. Ryan, however, argues the small number of legislators and others covered by the commission would make it easier to identify redacted names. McEneny said that without confidentiality, lawmakers won't seek guidance. NYPIRG's Horner said there's a simple solution: Create a single independent ethics body for the Legislature and everyone else, as 36 states have done.

"Our primary purpose is not to provide defenses for legislators, it's to provide guidance to legislators. ... it works well as a sounding board for people who want to do the right thing." said Ryan. As for the notion that the commission enables lawmakers to bend the law, Lanza replied that its purpose is to foster and ensure ethical behavior. "It's not going to prevent someone who is intent on breaking the law, but we hope that it will act as a deterrent," he said. Horner, though, notes that the commission hasn't deterred corruption in the Legislature, with several lawmakers convicted or currently under indictment or investigation for acts ranging from bribery to funneling state money to family members. "An independent commission should deter people from getting into trouble," he said. "Obviously, it hasn't worked." Jay Liu can be reached at 454-5081 or by e-mail at iliu@timesunion.com.

Former NY "Officer of Court" Gets 25 Years

Ex-lawyer gets 25 yrs for hiring hit man
The New York Daily News by BARBARA ROSS - May 10, 2008

A former lawyer got 25 years in jail Friday for hiring a hit man to kill a client's husband - and prosecutors said they are building a murder case against the victim's wife. Manuel Martinez again insisted he had nothing to do with the 1990 slaying of millionaire businessman George Kogan, but Manhattan Supreme Court Justice Michael Obus said the evidence was solid. "To say that this is an unusual case may be the understatement of my career," Obus said as he slammed Martinez with the maximum sentence. Prosecutor Joel Seidemann said Barbara Kogan wanted her wealthy, 49-year-old husband shot after he dumped her for a younger woman. Cops say she hired Martinez, who brought in hit man Paulie Pisano. "Murder for hire is the ultimate evil because it requires premeditation," Seidemann said. Barbara Kogan, 64, collected $4 million in life insurance after her husband's death.

Federal Agents "welcomed" by NY Lawmaker

Prosecutors subpoena Michael Spano
The Journal News by Timothy O'Connor and Glenn Blain - May 10, 2008

YONKERS - Federal prosecutors investigating the Yonkers City Council's handling of the controversial Ridge Hill development have issued a grand jury subpoena to Assemblyman Michael Spano. Two federal agents visited Spano on Thursday at his office and asked him about his dealings with Ridge Hill as well as powerbroker Albert Pirro, the estranged husband of former Westchester County District Attorney Jeanine Pirro and a one-time lobbyist for the $630 million project. "I welcome their visit," Spano said of the federal agents last night, "and I wouldn't need a subpoena to talk to them."

The subpoena marks the latest event in what has been a flurry of recent activity in the federal probe launched in March 2007, when federal prosecutors demanded all council records dating to the time the proposed development came before the seven-member City Council in January 2004. Federal prosecutors issued two rounds of subpoenas in February and March to City Council members, seeking records connected directly to Ridge Hill and Forest City Ratner, the project developer. The project was approved in July 2006, when Councilwoman Sandy Annabi cast the deciding vote in favor after having previously voted against project. Federal prosecutors asked for Annabi's financial disclosure form from 2006 and all of her e-mails from 2004 until March 2008 in a subpoena issued March 5. Annabi's lawyer, Murray Richman, met with federal prosecutors Thursday. A source familiar with the investigation said Annabi has been told she faces possible indictment on mortgage fraud charges.

Spano's subpoena orders him to appear before a federal grand jury in White Plains on May 20. After he left the Assembly in 2004, Spano worked for the Patricia Lynch Associates lobbying firm, which has Forest City Ratner as a client. He said he was asked in 2005, because of his knowledge of Yonkers, to speak to city officials to gauge their views and objections to the project. He said he spoke to council members Annabi, Dee Barbato and John Murtagh. His dealings were "strictly informational," he said. He did not lobby them, he said, but just relayed the information to his firm.

"No one at any time did anything inappropriate that I am aware of," Spano said. The probe has focused on lobbying efforts of council members on behalf of the project. One subpoena sought Councilwoman Patricia McDow's e-mail correspondence with Melvin Lowe, whom council members described as a consultant for the developer. In addition, federal prosecutors asked council members about Albert Pirro's role in the project when they interviewed them in February and March. Pirro could not be reached last night for comment.

Prosecutors also asked council members about Annabi and former Yonkers Republican Party Chairman Zehy Jereis. FBI agents served a subpoena on the city in March 2007 seeking all of Jereis' financial records. Jereis arranged a meeting between Murtagh, an opponent of the project, and the developer on July 11, 2006, to make a last-ditch effort to sway Murtagh, the councilman told The Journal News this week. That meeting came after Annabi had already announced her decision to change her vote, thus ensuring approval of the project. Murtagh said that in the meeting Jereis took the lead in trying to persuade him to go along with the project. Reach Timothy O'Connor at tpoconnor@lohud.com or 914-694-3523.

Daily News on NY State Sponsored "Hit Jobs"

Something rotten in state police
EDITORIAL - The New York Daily News - May 10th 2008

The investigation into an alleged dirty-tricks operation within the state police has triggered what appears to be a potentially criminal coverup. If anyone has obstructed justice - which seems likely - there must be hell to pay.At the request of Gov. Paterson, Attorney General Andrew Cuomo is probing whether rogue officials in and around the state police have been abusing their law enforcement powers to conduct political hit jobs. Paterson has said he admitted his extramarital affairs because he feared the state police had the information and might use it against him.

Senate Majority Leader Joe Bruno sees evidence of a rogue operation in the Troopergate scandal, in which embarrassing details of his travels on state police helicopters became public. There were also damaging leaks about former Rep. John Sweeney. A central figure in the suspected conspiracy is the shadowy Dan Wiese, a former state police colonel who headed Gov. Pataki's security detail and serves as inspector general of the New York Power Authority. Cuomo's office subpoenaed Wiese's e-mails and other records from the authority, only to discover that his computer files had been deliberately wiped clean April 1 - the very day Cuomo's probe was announced. The obvious conclusion is that someone with access to Wiese's computer records tried to destroy incriminating evidence, a serious matter, regardless of whatever else Cuomo finds. That it happened in the office of someone paid $181,000 a year to keep the Power Authority honest compounds the outrage. All those implicated should immediately lose their jobs and, quite possibly, face jail time.

It's now incumbent on Power Authority Chairman Roger Kelley - a Pataki administration holdover - to earn his $246,750 salary by cleaning house. His decision Wednesday to stop paying a salary to Wiese, who has been on paid suspension for a month, was a good start. Now, Kelley must ensure his agency fully cooperates with Cuomo's probe, including doing everything possible to recover the lost records. And Cuomo must spare no effort in getting to the bottom of the reeking affair. The smoke is undeniable. Let's find the fire.

AG Cuomo Predicts "Hundreds" of NY Lawyers to be Implicated

Pension Probe Will Snare "Hundreds" of NY Attorneys, Cuomo Predicts
The New York Law Journal by Joel Stashenko - May 9, 2008

ALBANY - Attorney General Andrew M. Cuomo predicted yesterday that "hundreds and hundreds" of attorneys will ultimately be implicated in his office's investigation of government entities improperly enrolling non-employees in public pension funds. While his investigators have only exposed the "tip of the iceberg" so far, Mr. Cuomo said the problem is not limited to a few school districts on Long Island which were initially exposed for having put attorneys doing work for the districts on the public pension rolls.

Mr. Cuomo said the problem is also evident at BOCES school districts, "special" districts like sewer or water districts and towns and villages. "In many ways, this situation is the public integrity version of death by a thousand cuts," Mr. Cuomo said. "Ten thousand governments. Little scams. Chronic widespread corruption and fraud. And in the end, the taxpayers bleed millions of dollars." While "there will be people beyond lawyers" found to be receiving improper public pension benefits, "the predominant class will be lawyers," Mr. Cuomo said. Mr. Cuomo announced settlements of $50,000 each yesterday between his office and the Hodgson Russ law firm in Buffalo and with Albany attorney Maureen Harris. Ms. Harris, a 2006 appointee to the state Public Service Commission by then-Governor George Pataki, was formerly with Girvin & Ferlazzo, an Albany firm Mr. Cuomo said he is investigating for its relationship with the Hamilton-Fulton-Montgomery BOCES.

Ellen Biben, special deputy attorney general for public integrity, said yesterday that Ms. Harris went on the Hamilton-Fulton-Montgomery BOCES payroll in 2005 as a $30,000-a-year labor relations specialist. However, she provided no such services in 2005 or 2006, when she left Girvin & Ferlazzo and the BOCES payroll, Ms. Biben said. Ms. Harris agreed in her settlement with Mr. Cuomo's office to forfeit pension credits she earned for being an employee of the BOCES district. Ms. Biben said Ms. Harris was one of at least 12 Girvin & Ferlazzo attorneys appearing on the Hamilton-Fulton-Montgomery BOCES payroll between 1991 and 2008. She contended that the firm, paid more than $200,000 a year by the BOCES district, paid some attorneys with that money regardless of whether they did work for the district.

"The Girvin firm was given the discretion to determine how many and which Girvin lawyers would be placed on the BOCES payroll and set the salary that each lawyer would receive regardless of whether that lawyer was doing any work for the BOCES," Ms. Biden said. "Indeed, to the Girvin firm, participation in the New York state pension system was a perk of partnership instead of the benefit earned from actual state employment." Mr. Cuomo said a criminal and civil investigation by his office is continuing against Girvin & Ferlazzo and that the settlement announced yesterday was only with Ms. Harris. Her attorney, Michael L. Koenig, said Ms. Harris regarded the pension credits she received as a firm benefit for partners at Girvin & Ferlazzo "pursuant to a longstanding relationship her firm had with BOCES." Ms. Harris' settlement will not affect her position at the Public Service Commission, Mr. Koenig said.

"It does not and it should not in any way affect her status as a commissioner," he said. "It was one year out of nine years she was an attorney in private practice. It has no bearing on her current position." Girvin & Ferlazzo's managing partner, Jeffrey D. Honeywell, was one of the firm's lawyers who Ms. Biben said received pension credits for being classified as an employee of the BOCES district. Mr. Honeywell issued a statement yesterday that the firm's contracts were reviewed and approved in the past by the state Education Department and that former Comptroller H. Carl McCall found in the late 1990s that it did not violate state pension fund rules for attorneys employed by multiple school districts to be enrolled in the retirement fund.

"The rules and regulations covering the area of employment in this area are at best confusing and not universally applied," Mr. Honeywell said. "Our hope is that the review by the attorney general and comptroller will result in clarity for the future to guide our clients and all municipal entities." Mr. Honeywell said his firm is cooperating with Mr. Cuomo. "We do this because we have done nothing wrong," Mr. Honeywell said. Mr. Honeywell was one of four attorneys at Girvin & Ferlazzo who were removed from the state and local retirement system by Comptroller Thomas DiNapoli last month for being improperly classified as employees of the Hamilton-Fulton-Montgomery BOCES district. Service credits were deducted from a fifth attorney with the firm.

Hodgson Russ agreed in its settlement with Mr. Cuomo to also pay $50,000 and to end its long-standing practice of having its attorneys on the payrolls of five BOCES districts in western New York as part-time employees. Unlike the Girvin & Ferlazzo lawyers, Mr. Cuomo's office said the Hodgson Russ attorneys were not enrolled in the public pension system nor did they receive other benefits such as health insurance coverage. Mr. Cuomo said BOCES districts have classified outside attorneys as employees because there is an advantage for them to do so under state regulations that provide higher state education aid for the payment of employees as opposed to paying independent contractors. State Education Commissioner Richard Mills on Wednesday informed school districts that those incentives would be eliminated.

Hodgson Russ' president and CEO, Gary M. Schober, said in an interview yesterday that neither the firm nor its attorneys gained financially in any way by their being named as employees of the Cattaraugus-Allegany-Erie-Wyoming BOCES, the Erie 1 BOCES, the Erie 2 BOCES, the Orleans-Niagara BOCES and the Monroe 2 BOCES districts. "We believe there was nothing improper with our lawyers being placed on the payrolls of the BOCES," Mr. Schober said in an interview. "At the same time, we understand the attorney general's point of view. Since he does have strong feelings about the issues, we are willing to discontinue the practice and continue representing our clients as independent contractors instead of employees."

Mr. Cuomo said yesterday lawyers can legitimately be employees of school districts and other local government units, but he said the rules are clear when people qualify as bona-fide employees and when they are independent contractors. "You're an employee," Mr. Cuomo said. "You have an office, a desk, a telephone. You go there." Lawyers, of all professionals, should know when employment arrangements are legitimate, the attorney general said. "This is not a discrete area of the law," Mr. Cuomo said. "This is a very well-known issue. This is a question between being an employee and being an independent contractor. It's well litigated. It arises in business all day long. It arises in households."

Music to Our Ears, NY Ethics on the Fed's Brain

Bruno probe focus on ethics opinions
FBI investigation looks at legislative panel's 10-year-old rulings
The Albany Times Union by BRENDAN J. LYONS - May 8, 2008

ALBANY -- An FBI investigation of Senate Majority Leader Joseph L. Bruno is focusing on several opinions he received more than a decade ago from the Legislative Ethics Commission that relate to his personal business ventures, including real estate development and horse breeding, the Times Union has learned. Two FBI agents hand-delivered a federal grand jury subpoena to the ethics commission staff about two months ago requesting copies of the opinions, which were promptly turned over, a person familiar with the matter said. Another person close to the investigation said federal authorities are closely examining the process by which Bruno may have received authorization from within state government for his various private business dealings.

Bruno, R-Brunswick, has sought at least four opinions from the commission, which was known as the Legislative Ethics Committee before being renamed last year. The opinions, which have never been made public, were issued more than 10 years ago in the early 1990s, the person familiar with the ethics rulings said. One of the opinions relates to First Grafton Corp., a secluded Rensselaer County development in which Bruno was a 25-percent investor. Bruno was a principal of First Grafton until 1992, when his investment in the development group was placed in a trust. That took place around the time he received an opinion from the ethics committee regarding his financial interest in the project, a source close to the committee said.

Another opinion Bruno received from the ethics committee was in connection with the senator's ownership of horses and business dealings with his friend, Columbia County veterinarian Jerry Bilinski. Bilinski is a former chairman of the Racing and Wagering Board, and a principal of Excelsior Racing Associates, which had bid on the franchise to run races at the three NYRA tracks. Two years ago, Bilinski also received a federal grand jury subpoena related to his horse ownership records as part of the investigation of Bruno. "I'd never seen anything treated with such importance as that was," said a person who was involved with the ethics committee's work in the Bilinski matter 12 years ago. "It was like a meeting of the war department."

The ethics commission was revamped last year as part of what state leaders said was a sweeping ethics reform bill. It is touted by those leaders as a bipartisan panel that provides lawmakers with opinions and clarifications about ethics rules. But its work is not subject to the state's Open Meetings or Freedom of Information laws. However, an individual lawmaker is free to publicly release any opinion he receives from the commission. Bruno's office declined to do so on Wednesday when asked by the Times Union. Melissa Ryan, executive director of the Legislative Ethics Commission, said she could not discuss details of opinions or disclose information about subpoenas received by the commission. "There is an investigation," Ryan said in a recent interview. "We've been fully cooperative with it, as has Senator Bruno's office."

In an interview on Wednesday, Ryan said she could not confirm her office's receipt of the federal subpoena two months ago. "I can't talk about any requests that are made in a specific case," she said. The FBI's review of the ethics' opinions comes as the federal investigation of Bruno is in its second year with no indication of whether any charges, or any action by a federal grand jury, will be forthcoming. In recent months there has been a new round of federal subpoenas in the investigation, according to people with knowledge of the investigation. Bruno's office declined on Wednesday to respond to questions about the investigation, including whether any Senate staffers have been subpoenaed. No one in the office would say how many staffers have retained attorneys or how those attorneys are being paid.

"We will respond when we are ready," said Mark Hansen, Bruno's spokesman. "You guys do whatever you are going to do, when you are going to do it. We just finished session and we are not going to answer you tonight." A person involved in the case said several "secretaries" for the Senate majority have retained counsel in recent months. Also, Francis Gluchowski, legislative counsel for the Senate majority, has retained Latham attorney Peter Moschetti in connection with the investigation, the person said. Gluchowski was formerly counsel to the legislative ethics panel and, in his position for the Senate majority's office, is heavily involved in crafting draft ethics opinions that are forwarded to the panel for consideration, according to people familiar with the process. Gluchowski and Moschetti did not respond to requests for comment. Bruno's attorney in the criminal investigation, William Dreyer, declined to comment for this article.

Dreyer's law firm has been paid more than $203,000 over the past two years from campaign funds connected to Bruno, records show. A 1989 state Board of Elections opinion holds that campaign funds may be used to pay legal expenses of public officers who are the target of a criminal investigation "if the criminal matter arises out of the campaign or the holding of public office." Bruno has publicly said that he has "followed the letter of the law" and has done nothing wrong. He confirmed the FBI probe in December 2006 but denied he was a target, even though his name has appeared at the top of several federal grand jury subpoenas. U.S. Attorney Glenn T. Suddaby and federal prosecutors handling the investigation have declined to comment.

Copies of some of the subpoenas show the probe of Bruno is broad. There have been subpoenas related to his real estate dealings, his ownership and breeding of horses, his ties to state labor unions and his work as a consultant for a Connecticut investment firm that has handled investments for those unions. Bruno abruptly resigned from that investment firm, Wright Investors Service of Milford, Conn., last year. He has declined to disclose how much he was paid as their consultant. Bruno also has declined to identify the clients of his private business, Capital Business Consultants. Brendan J. Lyons can be reached at 518-454-5547 or by e-mail at blyons@timesunion.com.

Someone Has to Take Ethics Lead (Cuomo)

CUOMO'S POWER PLAY
The New York Post by FREDRIC U. DICKER, State Editor

May 8, 2008 -- ALBANY - A furious Attorney General Andrew Cuomo yesterday demanded that the state Power Authority disclose who destroyed e-mail and BlackBerry messages involving Daniel Wiese, the agency's suspended inspector general and a central figure in the probe of political-espionage activities by the State Police. Cuomo also revealed that "back-up tapes" containing Wiese's deleted messages may exist at the authority, and he demanded in a letter that its president, Roger Kelley, produce them for his investigators. "During the course of our review of the materials produced by NYPA in response to subpoenas, we have learned that affirmative steps were taken by NYPA personnel to purposefully destroy responsive information, specifically e-mails on the BlackBerry of Daniel Wiese," Cuomo wrote. "This destruction took place on April 1, the day this investigation was announced in the media. In addition, it appears that NYPA's IT system deleted many past e-mails on Wiese's computer system.

"Undoubtedly, you appreciate the seriousness of this extremely troubling conduct," Cuomo continued, noting he had yet to decide "what specific action to take to address this conduct." Sources said Cuomo could seek criminal charges for obstructing an investigation or destroying state records. Cuomo also asked Kelley for a list "of any and all NYPA personnel involved in the deletion" of the records, and requested all e-mails relating to the activities of Laura DiMichelle - a Wiese friend and NYPA travel director - and Albert Swanson, Wiese's deputy.

Kelley spokeswoman Christine Pritchard pledged to "do everything in our power to get to the bottom of the matter and take appropriate action, including holding accountable any personnel who acted in an inappropriate manner." Cuomo's letter confirmed The Post's report Monday that Wiese's official computer was purged of potentially critical e-mail and other information. That happened shortly after Gov. Paterson authorized the attorney general to conduct a sweeping criminal probe of reports that a renegade State Police unit had engaged in political dirty tricks over several years. Wiese, a former State Police colonel and longtime friend of former Govs. George Pataki and Eliot Spitzer, became the PA's inspector general in 2003, but continued to exercise strong control over the State Police.

Early last night, the NYPA announced that, in light of Cuomo's letter, it had changed Wiese's status from suspended with pay to suspended without pay from his $180,000-a-year job.Wiese was linked by the Albany County District Attorney's Office to the Dirty Tricks Scandal last summer in which then-Gov. Spitzer used the State Police to gather purportedly damaging information on Senate Majority Leader Joseph Bruno (R-Rensselaer) and then leaked it to the press. Wiese has not responded to repeated requests for comment. fredric.dicker@nypost.com

Cuomo Not Happy About Erased Files

Cuomo wants Power Authority backup tapes in probe
The Albany Times Union by RICK KARLIN, Staff writer - May 7, 2008

ALBANY -- Saying it was "extremely troubling," that emails from the agency have been erased, Attorney General Andrew Cuomo is demanding backup tapes as well as a list of people in charge of computer information systems at the state Power Authority.
Cuomo had subpoenaed the emails and other information from the agency as part of his probe of possible political interference by past and present members of the State Police. The Power Authority's Inspector General, Daniel Wiese, is a former State Police colonel with ties to former governors George Pataki and Eliot Spitzer. Wiese has been on paid administrative leave from his $179,000 job since Cuomo's probe started last month.

Three "Officers of the Court" Caught Being Greedy

DiNapoli pulls 3 from retirement system
The Albany Times Union by RICK KARLIN, Staff writer - May 7, 2008

ALBANY -- State Comptroller Tom DiNapoli today said he has pulled three lawyers out of the state retirement system and rescinded credit from two other lawyers and an accountant. Included in the list is at least one lawyer with close ties to the Pataki Administration; Public Service Commissioner Maureen Harris who had her credits rescinded. She was appointed to the PSC by Pataki and is a sister to Pataki's former counsel, Mike Finnegan. Harris had briefly worked for Albany's Girvin & Ferlazzo law firm and was among the lawyers with credits for work at the Hamilton Fulton Montgomery BOCES. DiNapoli and AG Andrew Cuomo have said that the BOCES lawyers should be considered independent contractors, not employees, and therefore not eligible for pension credits.

NY Lawyer's Scheme a "Cancerous Growth"

NY Firm's Kickback Scheme Has GOP Calling Lawyers' Conduct an "Economic Threat"
The National Law Journal by Amanda Bronstad - May 7, 2008

Referring to the kickback issue at the heart of the federal government's case against the firm formerly known as Milberg Weiss as "a cancerous growth" and an "economic threat" that puts American jobs at risk, two high-ranking Republican Congressmen have called on House Judiciary Committee Chairman John Conyers Jr., D-Mich., to set a hearing to investigate the pervasiveness of unethical conduct among trial lawyers.

John Boehner, R-Ohio, and Lamar Smith, R-Texas, said the hearing should take place before May 19, when plaintiff's securities lawyer William Lerach, a former partner at Milberg Weiss, is scheduled to begin serving a two-year prison sentence. Mr. Lerach, who founded the firm Coughlin Stoia with partners after breaking away from Milberg. pleaded guilty earlier this year to one count of conspiracy in a case alleging that his former firm, now called Milberg, and seven of its partners, including himself, obtained $250 million in attorneys' fees by paying kickbacks to lead plaintiffs.

In a May 2 letter submitted to Mr. Conyers, Messrs. Boehner and Smith said that Mr. Lerach has admitted his crime was "industry practice" and that federal securities class actions cases are filed four times more often than other federal class actions. The letter also states that international employers are discouraged from employing workers in the United States because of the threatening legal climate.

"The Republican-led Congress responded aggressively to the Enron and WorldCom scandals earlier this decade," the letter says. "Now the Democrat-led Congress needs to do its job and examine the scandal at Milberg Weiss, which potentially has deeper and more far-reaching implications." Specifically, the letter asks Mr. Conyers to investigate how many cases involve illegal payments to plaintiffs, what other types of conflicts exist between lawyers and investors and what reforms should be undertaken to remedy the wrongdoing.

National Chaos: Feds Raid U.S. Special Counsel Offices

Special counsel's office raided amid obstruction probe
The Associated Press by LARA JAKES JORDAN - May 6, 2008, 645pm

WASHINGTON (AP) -- Federal agents raided the office and home of U.S. Special Counsel Scott Bloch on Tuesday while investigating whether the nation's top protector of whistle-blowers destroyed evidence potentially showing he retaliated against his own staff. Computers and documents were seized during the raid on the special counsel's downtown office, according to two law enforcement officials who spoke on condition of anonymity because of the ongoing inquiry. At least 20 agents were still on the scene as of mid-afternoon Tuesday. Bloch's home, in a Virginia suburb of Washington, also was raided, the officials said. FBI spokesman Richard Kolko confirmed that agents with the FBI and White House Office of Personnel Management executed "a number of court authorized federal search warrants today" but declined further comment. Jim Mitchell, communications director with the Office of the Special Counsel, confirmed the search of Bloch's work area and computers. He said the office was cooperating with the investigation.

"We do not yet know what this is about," Mitchell said in a statement, adding that "we are continuing to perform the independent mission of this office." The raids mark the latest twist in what critics describe as Bloch's bizarre tenure at the head of the federal agency responsible for protecting the rights of federal workers and ensuring that government whistle-blowers are not subjected to reprisals. He has been on the hot seat since he took office in 2004, in part for closing hundreds of whistle-blower cases allegedly without investigating them. "It's like finding out that your town fire chief is an arsonist," said Jeff Ruch, executive director of Public Employees for Environmental Protection, a whistle-blower group. "It's just sort of jaw-dropping how bizarre this entire episode has been."

A group of current and former Office of Special Counsel workers filed a complaint against Bloch in 2005, accusing him of retaliating against those who opposed with his policies through intimidation and involuntary transfers. The employees also accused Bloch of refusing to protect federal workers from discrimination based on sexual orientation. Those charges are being investigated by the inspector general at the Office of Personnel Management. A year later, in December 2006, Bloch paid $1,149 in taxpayer money to have an outside tech company, Geeks on Call, scrub his government laptop computer, according to transcripts of an interview he gave to House investigators in March. At that time, Bloch told the House Oversight and Government Reform Committee staff that the data wipe was done to protect government and personal information on the computer, not to destroy it. Rep. Tom Davis of Virginia, the top Republican on the House panel, asked Democrats to subpoena Bloch for his sworn testimony and personal e-mails that could clarify what was destroyed. He suggested Bloch "misused his government computer for personal business."

"The e-mails were essential in determining whether Mr. Bloch had used his computer for inappropriate purposes," Davis wrote in a letter Tuesday to House Oversight Committee Chairman Henry Waxman, D-Calif. Tuesday's raids were done in connection to a criminal investigation of whether Bloch obstructed justice and, potentially, lied to Congress, according to the law enforcement officials. Bloch has denied any wrongdoing. In the meantime, he has opened an investigation into whether former White House deputy political director and Karl Rove protege J. Scott Jennings violated the Hatch Act by making a presentation to political employees at the General Services Administration. The Hatch Act prohibits federal employees from engaging in political activities with government resources or on government time.

Last year, Bloch also recommended that then-GSA chief Lurita Doan be disciplined for engaging in illegal political activities and doling out no-bid awards. Doan abruptly resigned last week at the White House's behest. Whistle-blower groups demanded that Bloch follow suit, and called on the White House to secure his resignation immediately. White House spokesman Tony Fratto declined comment. "The fact is, this office is not functioning, this office does not protect whistle-blowers and this office is not meeting its mission," said Debra Katz, an employment lawyer representing the Special Counsel employees who filed the 2005 complaint. "President Bush needs to just tell this man that he needs to resign. There has been misconduct and he should not be allowed to continue his mission."

Judge Sues to Get Job Back

Pants suit judge sues to get job back - Pearson says he was "vilified in the media."
The Washington Post - May 6, 2008

(AP) WASHINGTON (AP) - A former judge who lost a $54 million lawsuit against a dry cleaners over a missing pair of pants is suing to get his job back and at least $1 million in damages. In the suit filed in federal court, Roy Pearson claims he was wrongfully dismissed for exposing corruption within the Office of Administrative Hearings, the department where he worked. In court documents, Pearson said he was protected as a whistle-blower and that the city used the fact that he was being "vilified in the media" to cut him out of his job. In a response to a Freedom of Information Act request from The Associated Press, the city's general counsel wrote that Pearson's term as an administrative law judge expired in May 2007, and the D.C. Commission on Selection and Tenure of Administrative Law Judges voted not to reappoint him. The panel reached its decision based on Pearson's work and temperament as a judge and the $54 million lawsuit. Pearson had requested to be appointed for a 10-year term.

The $54 million pants suit saga began when Pearson filed a civil suit against Jin Nam and Ki Chung, the owners of Custom Cleaners in Northeast, for losing a pair of pants and using signs that Pearson claimed were deceptive. In June 2007, Judge Judith Bartnoff ruled that the Chungs did not violate the consumer protection law by failing to live up to Pearson's expectations of the "Satisfaction Guaranteed" sign once displayed in the store. The Chungs sold the business because of the revenue losses and emotional toll the family suffered as a result of the lawsuit. Initially, Pearson calculated his losses at $67 million but lowered his request to $54 million.

Continuing Chaos: NY Judge Sues Attorney and Newspaper

NY Judge Sues Manhattan Attorney, Daily News for $10 Million
The New York Law Journal by Noeleen G. Walder - May 5, 2008

A Brooklyn judge has filed an unusual $10 million defamation suit against attorney Ravi Batra and the New York Daily News. The suit, Martin v. Daily News, 100053/08, filed earlier this year in Manhattan Supreme Court by Justice Larry D. Martin, alleges that Mr. Batra was the source of two Daily News columns and related blog postings falsely accusing the judge of improperly presiding over a case involving a lawyer who had defended him before the New York State Commission on Judicial Conduct.

Justice Martin maintains that Mr. Batra "requested and urged" Daily News columnist Errol Louis to publish "defamatory statements" about him. He claims the articles were "outrageous, grossly irresponsible, malicious and evinced a complete and utter indifference" to his "rights and reputation." Both Mr. Batra and the Daily News have filed motions to dismiss. On Jan. 28, 2007, Mr. Louis wrote that the "complicated world of judicial corruption in Brooklyn - a snakepit filled with bribery and back-room political deals" - was on the verge of being "blown wide open." He cited an action brought by Mr. Batra, relating to Singer v. Riskin, 015812/01, an ongoing multimillion dollar real estate dispute between Mr. Batra's clients, Martin and Grace Riskin, and Ted Singer. That dispute has spawned 11 lawsuits.

In November 2006, Mr. Batra filed Riskin v. Karp, 34131/06, on behalf of his clients against attorney Jerome M. Karp. The suit alleges Mr. Karp represented Mr. Singer "in secret" in Riskin v. Belinda, 048555/98, a mortgage foreclosure action and offshoot of Singer v. Riskin. Mr. Batra alleged that Mr. Karp's failure to disclose his representation of Mr. Singer in Belinda, over which Justice Martin presided, created an undisclosed conflict since Mr. Karp had served as the judge's attorney before the judicial conduct commission.

The commission, in a determination issued in December 2001 and modified in June 2002, admonished Justice Martin for sending ex parte letters seeking favorable consideration on behalf of defendants awaiting sentencing in other courts. Mr. Batra alleged in Riskin v. Karp that Mr. Karp's representation of Justice Martin during 2000 and 2001 rendered Mr. Karp unable to act as Mr. Singer's undisclosed attorney from July 25, 2000, to "the present time." Mr. Batra maintained that this representation violated the "core holding" of Matter of Huttner 2, a 2005 decision in which the judicial conduct commission censured Brooklyn Supreme Court Justice Richard D. Huttner.

Mr. Karp represented Justice Huttner in that matter, in which the judge was faulted for failing to disclose his "close social relationship" with Mr. Batra in the Cypress Hill Cemetery litigation, which was pending before him. The judge, who often dined and socialized with Mr. Batra, had appointed Mr. Batra as fiduciary in 11 matters and as counsel to receiver in Cypress Hill. Nancy Ledy-Gurren of Ledy-Gurren Bass & Siff, who represents Mr. Karp in Riskin v. Karp, said in an e-mail last week that Mr. Batra's case against her client is "frivolous and substantively without any merit."

She wrote that Mr. Karp represented Justice Martin in a single matter, beginning in late 2000 and ending in August 2002. She added that Mr. Karp does not have and has never had a social relationship with Justice Martin. She said Mr. Karp's involvement in Belinda, over which Justice Martin presided, was limited to a single letter he wrote at the request of Mr. Singer, who wanted to intervene in the litigation. She said Mr. Karp was "a third party respected by both sides, to try and get settlement talks started." Nothing came of the letter, and "there was no further connection or knowledge of the controversy on Mr. Karp's part," Ms. Ledy-Gurren wrote.

Stuart A. Blander of Heller, Horowitz & Feit, who represents Justice Martin in his libel action, said that Mr. Singer withdrew his motion to intervene in the Belinda action shortly after making the request. At that point, he said that Justice Martin had not retained Mr. Karp for the judicial conduct matter and had no attorney-client relationship with him. He said that Mr. Singer's only current connection with the Belinda foreclosure action related to a "lingering" sanctions motion that Mr. Batra brought on behalf of Mr. Riskin. Despite Mr. Batra's allegations of a conflict, no formal motion was made for Justice Martin to recuse himself in Belinda, although the judge did deny an oral application for recusal made in 2005, Mr. Blander said.

Citing Mr. Batra's Riskin v. Karp lawsuit, Mr. Louis wrote in his January 2007 column that Mr. Karp gave "legal advice" to Mr. Singer without disclosing that he had "once represented Supreme Court Justice Larry Martin, the judge hearing the multimillion-dollar case." The column later stated that Mr. Karp's representation of Mr. Singer and the judge occurred "simultaneously." On Feb. 8, 2007, in a follow-up Daily News piece, Mr. Louis wrote that Justice Martin is "in the hot seat again" for allegedly overseeing a case involving his "personal lawyer." In his February column, Mr. Louis mistakenly referred to Riskin v. Belinda as Singer v. Riskin.

According to Mr. Blander, Justice Martin's attorney, the judge "had nothing to do with Singer v. Riskin," which is before Brooklyn Judge Michael A. Ambrosio. Justice Martin was assigned to the smaller foreclosure action Riskin v. Belinda, Mr. Blander said. When readers pointed out Mr. Louis' error on the newspaper's blog, "The Daily Politics," he clarified the case caption but stuck by his claim that the judge should have recused himself from Belinda. "It's clear as a bell and you know it," Mr. Louis wrote. Mr. Batra then suggested in a related blog posting that skeptics should take a trip to the Brooklyn courthouse, if they had doubts about the accuracy of Mr. Louis' February column. Mr. Batra contended that he had an obligation to remedy readers' "sloppy" misconceptions, particularly where "fraud upon the court is afoot!"

Judge's Contentions

In his suit against the Daily News, Mr. Louis and Mr. Batra, Justice Martin maintains that the articles and blog postings got the facts wrong on a number of counts. The judge says that he never presided over Singer v. Riskin, and argues that Mr. Karp was not an attorney of record in the proceeding. Justice Martin also contends the newspaper and blog posts gave readers the false impression that Mr. Karp currently represented the judge, when he had not been his attorney for "more than five years." Justice Martin pegs Mr. Batra as the "source" of the misinformation. He claims Mr. Louis' columns, which were "widely read and discussed by the public," the "legal community" at large, family and friends, including his church group, "brought him into public scandal and disrepute."

'Accurate Portrayals'

In his motion to dismiss, Mr. Batra denies he provided the Daily News with a copy of his lawsuit against Mr. Karp. But he adds that even if he did, his alleged statements, made in his "capacity" as the Riskins' attorney, are protected under Civil Rights Law §74, which grants absolute immunity from civil suit for the publication of "a fair and true report of any judicial proceeding." "[T]here is universal agreement that the columns are based upon the verified complaint previously filed in Riskin v. Karp - and are substantially accurate portrayals of the same," Mr. Batra claims in an affidavit filed in support of his motion to dismiss. Mr. Batra also claims his statements could not have defamed Justice Martin, since they "are not even about the plaintiff - but about Jerome Karp." Mr. Batra has requested attorney's fees and sanctions against Justice Martin and his counsel.

In papers filed with the court, the Daily News admits Mr. Louis erred in his Feb. 8, 2007, column when he identified Justice Martin as the presiding judge in Singer v. Riskin, instead of Riskin v. Belinda. But the newspaper argues that the fair reporting privilege renders it immune from suit, since Mr. Louis "substantially stated the substance" of Mr. Batra's complaint against Mr. Karp. The Daily News also argues that Mr. Louis' pieces amounted to "non-actionable" opinions. Anne B. Carroll, deputy general counsel for the New York Daily News, declined to comment on pending litigation.

Mr. Blander said in an interview that Justice Martin learned of Mr. Batra's claim that Mr. Karp was secretly representing Mr. Singer in Riskin v. Belinda for the first time in 2005, when Mr. Batra sent a letter to then-Administrative Justice Neil J. Firetog raising the issue. Mr. Blander said that "any sitting judge values very, very highly his reputation for honesty and for fairness" and that the "entire thrust of the [Daily News] columns was that Justice Martin wasn't doing what he was supposed to do." In an interview, Mr. Batra called Justice Martin's pending action "a frivolous lawsuit [that] ill serves one who sits on the noble bench." The suit is before Supreme Court Justice Martin J. Schulman.