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Should a Republican judge who called a Republican public official and asked him to retain a staffer because he was a “good Republican” preside over a case in which a Republican administration is defending itself in a politically laced retaliation action? That is the convoluted and exceptionally contentious central issue in a recusal motion pending before District Chief Judge Frederick J. Scullin Jr. of U.S. District Court for the Northern District of New York in Adler v. Pataki, 96-CV-1950. The case involves a former state lawyer, Alan M. Adler, who alleges he was fired from his job at the New York State Office of Mental Retardation and Developmental Disabilities in retaliation for a lawsuit that his wife, Sue H.R. Adler, brought challenging her own, earlier ouster from the office of the Attorney General. Mr. Adler was fired by the Republican administration of New York Governor George Pataki in late 1996, just after Mrs. Adler, who was forced out of the Republican administration of then-Attorney General Dennis C. Vacco, embarrassed the GOP with her lawsuit. He claims the firing was in retaliation for his wife’s lawsuit; the defendants contend that the firing was part of a statewide action to create patronage slots for loyalists to the governor, and had no connection whatsoever to Mrs. Adler’s suit. The case is pending before Scullin in Syracuse and Magistrate Judge David R. Homer in Albany. But Scullin, who has longtime connections to the GOP, has been asked to step aside because of comments he made on behalf of a friend some five years ago. Those comments, memorialized in a deposition in an unrelated matter, have resurfaced in Mr. Adler’s case and form the basis for his recusal motion. In the deposition, the top assistant to then-Attorney General Vacco — William M. Flynn � said that he received a call from Scullin in 1995. At the time, Vacco had just taken office as the first Republican Attorney General in 16 years and was in the process of establishing his professional staff. All 450 attorneys who wanted to remain on the payroll had to re-apply for their jobs. Approximately one-third of them were fired, including one who happened to be a personal friend of the U.S. district judge. Scullin wanted Vacco to reconsider, and informed Flynn that the attorney “was a good Republican, and he had a large family that he had to feed,” according to the deposition transcript. Flynn said the judge asked him to bring the matter to the attention of his boss, and he did so. However, Vacco responded, “We are not going to change our decision based upon whether someone is a good Republican,” Flynn said in the deposition. Because of that deposition, Franklyn H. Snitow of Snitow & Pauley, a Manhattan firm representing some of the defendants in Adler v. Pataki, including Flynn, wrote to Scullin on Jan. 16, 1997, and suggested he recuse himself. In that letter, Snitow said that given the facts, a “reasonable person … might question the court’s impartiality,” and expressed concern that Scullin’s continued involvement in the case “will foster suspicions of the judicial process.” Scullin declined to recuse himself and ensured the parties that he could be impartial despite the communication with Flynn. The issue of his objectivity remained dormant for the next three years, when it was resurrected by Mrs. Adler. Now, Mrs. Adler, who is representing her husband, is fighting tooth-and-nail for Scullin’s recusal, even though neither she nor her husband made much of a ruckus when Snitow first raised the issue in January 1997. And Snitow, who in 1997 argued forcefully that Scullin should not sit on the case, now is fighting just as hard to keep him on Adler v. Pataki. ACRIMONIOUS BRIEFS Briefs and reply papers submitted to the court overflow with acrimony and hostility. After arguing that the recusal motion is about three years too late and indicates a judge-shopping expedition on the part of Mrs. Adler, Snitow charges his opponent with “arrogance,” calls her “impertinent,” and accuses her of employing “exasperating techniques” and using “inflammatory rhetoric” to pursue “guerrilla warfare with political objectives.” The motion, he said, is based on “pure speculation laced with Ms. Adler’s usual hyperbole,” and that her allegation of judicial bias is “outrageous.” Snitow characterizes Mr. Adler’s claim of retaliatory termination “specious,” and contends that the Adlers’ inability to coerce a settlement has prompted them to “adopt the desperate tactic of insulting the court in order to engage in forum shopping.” Their motion, he complains, is nothing more than “saber rattling to secure a desired result.” “Plaintiff and his counsel apparently believe that if by publicly maligning the court through claims of partiality they will either find a ‘friendlier’ forum or paralyze this court when the ultimate dispositive motion is made by defendant,” Snitow said in a Sept. 8 declaration filed with the court. Mrs. Adler responded by accusing Snitow of waging a “personal attack quite outside the bounds of civility.” Mrs. Adler said further: “Snitow is more than just defendants’ counsel in this case, he is their colleague, a staunch Republican who served on Dennis Vacco’s transition committee and his declaration is just further proof of how angry they all are over what happened [in the previous case].” She contends in court papers that Snitow is still stewing over her litigation with Vacco, which was dismissed but not before the attorney general was sanctioned for his conduct, and discovery yielded embarrassing facts that became campaign fodder for the man who defeated Vacco in 1998, current Attorney General Eliot Spitzer. And Mrs. Adler implies that Snitow has a financial interest in avoiding settlement, since “continuing to litigate serves only to further line the pockets of trial counsel.” “The more he tries to smear me, the more he proves plaintiff’s case — defendants and their alter-ego attorney are still so embittered over the prior lawsuit that they will use any opportunity to get back at me, whether through court papers or firing my husband,” Mrs. Adler said in court papers. Almost lost in the exchange between Snitow and Mrs. Adler are a host of legal issues, including the grounds for recusal and standard for review. Those issues are currently pending before Scullin. UNDERLYING CASE The underlying case hinges solely on whether Mr. Adler was fired in retaliation for Mrs. Adler’s litigation against the Vacco Administration. After Scullin dismissed the case, the 2nd U.S. Court of Appeals f partially reversed, holding that the Pataki Administration had every right to fire Mr. Adler for reasons of political patronage, if that is what it did. However, the 2nd Circuit said the administration did not have the right to penalize Mr. Adler for the conduct of his wife. It held that firing a state employee in retaliation for his wife’s lawsuit violates the First Amendment right of “intimate association.” Last week, Magistrate Judge David R. Homer ruled in a pretrial discovery motion that since the defendants claim Mr. Adler was fired for political reasons, the plaintiff is entitled to limited discovery that would serve to show how the patronage system worked in practice.

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