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MINEOLA � Three years ago, Nassau County and attorney Andrew Campanelli had a shared vision: Bring in Mr. Campanelli as special counsel to prosecute 1,400 backlogged vehicle forfeiture cases against convicted drunken drivers and, in exchange, he would receive 26 percent of the proceeds from the resale of those seized vehicles. In theory, Nassau would get rid of the piles of cases, Mr. Campanelli would make a tidy profit and both could rest easy with the notion that Long Island’s streets were a bit safer. But what began as a potential boon to both sides has devolved into a knotty fee dispute between the parties, one complicated by the Court of Appeals decision in Nassau v. Canavan last November which threw out Nassau County’s forfeiture law as unconstitutional. Earlier this month, Nassau County Supreme Court Justice Robert Roberto Jr. dealt with some of the strife in an 11-page decision that noted the “unfortunate result” from the inability of the two parties to resolve their differences over Mr. Campanelli’s fees. The upshot of Justice Roberto’s recent decision in Nassau v. Califano, 9951-03, is that the county will not have to pay Mr. Campanelli for about 900 forfeiture actions he undertook pursuant to the now-vacated law. However, he is entitled to a quantum meruit award, the judge held, for some of the work he performed while the state’s higher courts pondered the constitutionality of the law. Justice Roberto’s ruling, signed March 4, noted that the case file for the dispute between Nassau and Mr. Campanelli is under seal, upon a motion by the county on the grounds that it contains matters covered by the attorney-client privilege. Nassau County Attorney Lorna Goodman said last week that the county was “studying” the decision. “We feel that he is not entitled under our contract” to the fees in dispute, she said, adding that she was satisfied with the work Mr. Campanelli had performed. Mr. Campanelli declined to comment on the litigation, citing the court’s sealing order. What complicates this “contentious dispute,” as Justice Roberto described it, are the ramifications of several court decisions pertaining to forfeiture law itself and how they affected the outside counsel contract. And even as the parties are feuding over fees, Nassau County has again reworked its forfeiture law, which some say still has problems. Unsold Cars in Storage Lots The chain of events began in 1999, when Nassau County began seizing vehicles under a decades-old provision of its Administrative Code that empowered the county to seek forfeiture of property used as an instrument of a crime. During the first year of the program, implemented by then-Nassau County Executive Thomas Gulotta, the county seized about 750 cars. Although several defense attorneys launched challenges to the law, usually on excessive fines grounds, those initial actions failed. But the county’s victory in the courts did not equate to success in the program’s execution. In August 2001, Newsday wrote that more than 1,400 cars were sitting unsold in lots paid for by the county. Many of those cars were deteriorating in the storage lots that were costing the county $250 per day. After the attorney within the County Attorney’s office who was handling the forfeitures quit, the county decided in December 2001 to hire Mr. Campanelli, who would not only prosecute the actions but also would hold auctions, for a cut of the profits, where the public could purchase the seized vehicles. The contract’s expiration date was July 1, 2003. Justice Roberto’s March 4 decision observed the “success and professionalism” of Mr. Campanelli’s work. It also noted that the county was not questioning the quality of legal services provided. A month before the official start of his contract, Mr. Campanelli told the Law Journal that the arrangement he made with Nassau was a “no-brainer,” which provided him with a strong incentive to pursue the actions and sell the cars swiftly. At the height of Mr. Campanelli’s endeavor, the Web site of his firm, Perry & Campanelli, included a link listing vehicles available at upcoming auctions. But just as the controversial program seemed to hit its stride, the Appellate Division, Second Department, put a halt to it, at least temporarily. In an unsigned decision issued in March 2003, the judges in Nassau v. Canavan, 303 AD2d 355, held that the law was unconstitutionally vague and inconsistently applied. Quickly, and some say, too quickly, the Nassau County Legislature responded by passing a new version of the forfeiture law within a week of the Appellate Division’s decision in Canavan. This time it was more specific about the type of conduct that could lead to forfeiture. And, taking a hint from a federal case that found New York City’s forfeiture law lacked due process, Nassau lawmakers required the new law to provide hearings to those defendants who requested them. By the time the Second Department had thrown out Nassau’s first law, Mr. Campanelli had handled 1,459 cases, according to Justice Roberto’s March 4 decision. Armed with the second forfeiture law, the attorney continued to pursue the civil actions and did so until the Court of Appeals, in an opinion by Chief Judge Judith S. Kaye, affirmed the Second Department’s ruling in November 2003. In addition to finding that the first version of the law violated due process because it did not provide all defendants with prompt post-seizure hearings, Judge Kaye wrote that Nassau’s second version was equally flawed, suggesting, in dicta, that Nassau revamp the law. At that point, the county stopped seizing cars. Work Prior to Second Department Ruling In his recent decision, Justice Roberto was left to decide how the appellate courts’ decisions affected the county’s contract with outside counsel. He first tackled the issue of work performed prior to the Second Department’s ruling. He wrote that, in general, he was “constrained to agree” with the county that it owed Mr. Campanelli nothing for the 1,459 cases that remained open prior to the Second Department’s decision. The judge reasoned that because the contract anticipated constitutional challenges to the law and required Mr. Campanelli to defend such challenges as part of his contingency fee, the appeals panel’s ruling was not an “unanticipated event.” Justice Roberto further reasoned that the attorney was not entitled to quantum meruit recovery for those cases because the county had not discharged him and he had not filed a motion to be relieved during the term of the contract. However, the judge wrote that of the 1,459 files, Mr. Campanelli deserved payment for those cases in which he worked to return the cars to their owners. Prior to the Second Department’s decision, Nassau County had to return about 450 cars because it had missed the time period for prosecuting the cases or had improperly issued process of service. In reaching his decision on those fees, the judge referred to a provision in the contract stating that the county would bear responsibility for returning cars in cases where defendants won the forfeiture lawsuits. The judge called for a hearing to determine the amount in quantum meruit owed to Mr. Campanelli, since he was directed by the county to perform that work. ‘Altered Legal Landscape’ Justice Roberto then turned to the time period following the Second Department’s Canavan decision and up to the time of the Court of Appeals decision. He wrote that it was clear that the attorney and the county had discussions about adjusting his compensation “in view of the altered legal landscape.” With that premise, he said that since the county had passed a second version of the law, Mr. Campanelli had the right to quantum meruit relief for the 300 or so forfeiture cases opened under the second law and that remained open when the Court of Appeals made its decision in November. He determined that even though the county had not renewed the contract in July, it still had to pay Mr. Campanelli for those cases he continued to work on following the Second Department’s decision until the November 2003 Court of Appeals decision since the option to renew rested solely with the county. Justice Roberto also noted that the parties apparently had engaged in conversations about renewing the contract, which spurred Mr. Campanelli to continue working past the expiration date. Furthermore, the “altered landscape” following the Second Department’s decision also included the second law’s provision for providing forfeiture defendants with retention hearings when requested, Justice Roberto wrote. The county had argued that it was not required to pay Mr. Campanelli for appearing at some 250 retention hearings on the county’s behalf, since the County Attorney had not obtained the authority from the county legislature under a provision of the County Government Law to hire Mr. Campanelli other than on a contingency basis. Justice Roberto rejected that argument. Instead, he found that the County Attorney’s office indeed had power to pay Mr. Campanelli on a per diem basis under County Government Law and that since Mr. Campanelli agreed to accept $60 for each of the 250 hearings he attended, his remuneration was well below the $25,000 amount that requires legislative approval. Justice Roberto also concluded that paying those fees did not materially alter the original agreement, since Mr. Campanelli’s primary responsibility was prosecuting the forfeiture actions on a contingency basis. In the end, Justice Roberto called for a hearing April 7 to determine the amount of compensation the attorney will receive. As for the third version of a forfeiture law passed by the county legislature last week, attorney Michael A. Montesano, who won the Appellate Division decision for his client, Michaele Canavan, said it has some improvements. Specifically, the law does not allow the county to seize cars owned by innocent third parties and it makes provisions for hardship cases. Also, the law initially gives back vehicles to drivers who have no previous drunken driving convictions until the criminal proceedings are complete. Still, the law is faulty, Mr. Montesano said. He argues that forfeiture is a matter for the state Legislature because individuals who are not from Nassau County have no notice of the county’s law. “I’ll be challenging it when I have the right client,” Mr. Montesano said. But Ms. Goodman called the new law “innovative.” She said, “We believe it will pass all constitutional scrutiny.”

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