ALBANY – Staten Island District Attorney Daniel Donovan Jr. is asking the state’s highest court to seal records relating to a political investigation and for permission to serve a redacted brief on his adversary, the Working Families Party.
The Court of Appeals in November agreed to hear Matter of Working Families Party v. Fisher, 2013-996, a case arising from an investigation into a 2009 City Council election on Staten Island.
Donovan asked to be relieved from the case for reasons he has never publicly disclosed. Justice Fern Fisher (See Profile), the deputy chief administrative judge for New York City, removed Donovan and appointed Roger Bennett Adler as special district attorney in January 2012, two years after Donovan made his request.
The case moved forward, and in August, the Appellate Division, Second Department, rejected the party’s claims (NYLJ, Aug. 8, 2013). The Court of Appeals subsequently granted leave and set oral arguments for March 24.
At issue in the appeal is whether the “actual prejudice” standard needed to disqualify a district attorney applies when the prosecutor himself asks to be replaced, and whether Fisher had authority to grant Donovan’s request and appoint Adler.
In a petition submitted to the high court earlier this month, Assistant District Attorney Morrie Kleinbart asked the judges to allow the district attorney to file his response under seal and serve the Working Families Party (WFP) with a redacted version.
Kleinbart said Donovan is “particularly sensitive to the risk that information identifying someone whose conduct was being investigated might become widely disseminated while a subsequent determination that there was no basis to believe that the person had committed any wrongdoing would not be as widely reported.”
The prosecutor contends that the information Donovan wants to keep under seal is akin to grand jury material.
“To paraphrase former United States Secretary of Labor Raymond Donovan after his acquittal on corruption charges, respondent Donovan [no relation to the former labor secretary] wanted to be sure no one would ask of him, ‘Where do I go to get my reputation back?’” Kleinbart wrote.
Kleinbart told the court that requiring his client to serve an unredacted brief would undermine the appeal by effectively giving the WFP part of the relief it wants.
“Should respondent Donovan be required to serve an unredacted copy of his brief on the parties, petitioners will have received that very relief without full briefing and argument,” Kleinbart said in an affirmation. “That ought not to be countenanced.”
In response, the WFP, represented by Avi Schick, Richard Zuckerman and Kiran Patel of Dentons USA, said the court “should decline District Attorney Donovan’s request to turn this appeal into a secret, ex parte proceeding.” The party said the absence of a full, unredacted brief would deprive members of a “fundamental right to review and respond” to opposing arguments.
“The motion’s stated justification for seeking to hide this appeal from the public is for the protection of the Working Families Party,” they said in their brief. “That concern was nowhere in evidence in February 2011, when District Attorney Donovan gave an interview to the New York Post demanding that a special prosecutor be appointed to investigate the Working Families Party.”
In opposing Donovan’s motion, the WFP argued that the district attorney cannot justify keeping portions of his brief secret.
“Questions such as whether District Attorney Donovan has a conflict of interest preventing him from fairly investigating allegations about the Working Families Party can and should be openly addressed without revealing any information that would compromise the underlying investigation,” the party said in its papers. “And even if there were a basis to seal the materials from the public, there is no reason to redact the briefs provided to the parties in this appeal.”
Deputy counsel Lee Alan Adlerstein of the Office of Court Administration represents Fisher.
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