Roger Bennet Adler, left, and Staten Island D.A. Daniel Donovan Jr. (NYLJ/Monika Kozak, Rick Kopstein)
ALBANY – By early June, attorney Roger Bennet Adler should know whether he’ll be prosecuting Staten Island’s lingering criminal probe into suspected political shenanigans, or whether the case will revert back to the elected district attorney.
Regardless of what the Court of Appeals decides in Working Families Party v. Fisher, 59, a long-stymied investigation into a 2009 City Council election, the case apparently will move forward with a grand jury examining potential violations of campaign finance laws, election law and the penal code.
Adler, who was appointed special district attorney after Staten Island District Attorney Daniel Donovan Jr. bowed out for unspecified reasons, said a technical and procedural battle headed to the top court on Tuesday has frustrated his efforts to get to the bottom of the 2009 election and determine if political manipulations amounted to crimes.
“It has had, shall we say, a dampening effect on my ability to move as quickly as I would like,” Adler said in an interview. “But I am hopeful that after the April 29 argument we will have a resolution and be able to move forward once the cloud of uncertainty is removed.”
Adler took the appointment in January 2012, nearly two years after Donovan submitted a confidential ex parte bid to Deputy Chief Administrative Judge Fern Fisher asking to be relieved of a matter involving the Working Families Party. It remains unclear why Donovan felt he couldn’t handle the case, but his recusal and the manner in which Adler was appointed generated a lengthy legal battle culminating in a visit to the Court of Appeals.
The Working Families Party (WFP) contends that Fisher had no authority to disqualify Donovan without “a showing of actual prejudice based on a demonstrated conflict of interest,” as mandated by County Law §701. But the Court of Appeals may never get to the merits and could get hung up on procedural questions, such as whether a writ of prohibition is the appropriate vehicle to challenge Adler’s appointment, observers said.
A year after his appointment, Adler served grand jury subpoenas on the WFP’s treasurer and assistant secretary. A month later, the party brought an Article 78 petition for a writ of prohibition, challenging the validity of the subpoenas and arguing that Fisher had no authority to approve Donovan’s disqualification.
Last summer, the Appellate Division, Second Department, rejected the party’s petition and upheld Adler’s appointment. The panel said that a writ of prohibition was appropriate to challenge the appointment of a special district attorney only when the special D.A. is performing a quasi-judicial function, as opposed to “the purely investigative function of investigating ‘suspicious circumstances’ with a view toward determining whether a crime has been committed” (NYLJ, Aug. 8, 2013).
On appeal, the WFP contends that prohibition was appropriate because it was not challenging Adler’s investigation, only Fisher’s authority to relieve Donovan of his duties. The party also argued that only a Superior Court judge in the same county as the district attorney could disqualify the D.A. The party disputed the claim by Fisher and Donovan that the judge could, and did, appoint herself a Richmond County Supreme Court justice for the purpose of removing the district attorney from the case.
Can Elected D.A. Step Aside?
Depending on what the Court of Appeals decides on the technical and procedural issues, it may or may not get to a more substantive question: can district attorneys disqualify themselves from a case, and if so, does the disqualification standard of “actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence” apply?
The WFP, represented by Dentons partners Avi Schick and Richard Zuckerman and associate Kiran Patel, argues that a district attorney cannot step away from a case and abdicate his role to an appointee who was not elected by county residents.
“District Attorney Donovan was elected by the citizens of Richmond County and is subject to the vetting process that an election produces,” Schick, who will argue the appeal, said in his brief. “By contrast, the people of Richmond County have no say in the selection of Roger Bennet Adler, and no access to information that would be made public if the special prosecutor underwent the same vetting process. The special prosecutor is an unaccountable and unknown entity who from one day to the next is transformed from a typical private practitioner to one with the vast powers of the district attorney.”
Donovan, represented by Assistant District Attorney Morrie Kleinbart, said a prosecutor not only has the authority to step aside from certain cases, but the duty under the Rules of Professional Conduct.
“[D]onovan took the only path open to him to resolve his ineligibility to investigate the matter, while insuring that it would, in fact, be investigated,” Kleinbart argues in his papers. “The citizens of Staten Island deserved no less and any disagreement petitioners may have with [Donovan's] decision is properly addressed at election time.”
In an amicus brief, the District Attorneys Association of the State of New York maintains that a prosecutor who believes he cannot handle a particular case is entitled to “full deference” and insists that “justice is not served when a district attorney is put in a position where he or she believes there is a conflict of interest but recusal is not permitted.”
The D.A. Association said that any finding to the contrary would put all district attorneys in an untenable position of either proceeding with a prosecution when he or she believes doing so would violate the Rules of Professional Conduct, or declining to prosecute legitimate cases and thereby violate his or her oath of office.
“A rule that forces a district attorney between Scylla and Charybdis in that manner does not serve the ends of justice,” the organization said in an amicus brief submitted by its president, Nassau County District Attorney Kathleen Rice and Wendy Evans Lehmann of the New York Prosecutors’ Training Institute.
Fisher is represented by Lee Alan Alderstein of the Office of Court Administration. Alderstein claims Fisher had the clear right to briefly make herself a Richmond County Supreme Court justice and appropriately exercised authority that is not subject to a writ of prohibition. He also said the law makes plain that district attorneys have sole discretion to recuse themselves.
Interestingly, none of the issues before the Court of Appeals would stop the investigation from going forward. Rather, the most the Working Families Party can hope for is an order shifting the case back to Donovan.
It is unclear exactly what Adler has been investigating, although the probe appears to be at least partially related to a 2009 controversy when the Working Families Party was accused of using a not-for-profit arm, Data and Field Services, to aid liberal Democratic candidates it supported in a City Council election. In 2011, the party settled a civil lawsuit alleging it unfairly assisted Deborah Rose, D-Staten Island, and other candidates.
Adler said the lengthy battle has “left a cloud over the presumptive legitimacy of the special district attorney” and said he is hopeful the Court of Appeals will not permit the WFP to “pick who its prosecutor will be.”
“I am hoping that cloud lifts later this spring and we will be able to move forward and do the job I was appointed to do,” he said. “Many witnesses have been interviewed. We were getting ready to go into the grand jury.”
Adler said the underlying campaign finance issues transcend the Working Families Party matter.
“The public needs to know that people gaming the system will be held accountable,” he said. “Accountability is important to ensure that … people will not be able to game the system and take unfair advantage and unlawfully affect elections. The investigation deals with the fairness of the council campaign and whether or not the campaign finance system was gamed during the 2009 election. That is what the grand jury needs to resolve.”
City records show Adler has been paid $165,622 for his work to date on the WFP case. Donovan is paid $190,000 annually.
A six-judge panel will hear arguments late Tuesday afternoon. Chief Judge Jonathan Lippman has recused himself for unstated reasons.