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The Pataki Administration’s assertion that a state lawyer was fired as part of a widespread political purge, and not because his wife sued the New York governor’s allies, opens the door to discovery, a federal magistrate judge has ruled. On Friday U.S. Magistrate Judge David R. Homer of the U.S. District Court for the Northern District of New York refused to quash major portions of a subpoena requiring Senate Majority Leader Joseph L. Bruno to disclose records and divulge information on executive department candidates who were retained or fired by Governor George Pataki following an endorsement by the senator. Additionally, Homer held that one of Bruno’s top aides, Director of Operations Richard Burdick, can be deposed by counsel for Alan M. Adler. Homer declined to order Bruno to submit to a deposition, but indicated he would reconsider if Burdick’s testimony fails to answer all relevant questions or raises other questions that only the Majority Leader can answer. The pretrial ruling comes in the case of Adler v. Pataki, 96-CV-1950 and involves a former high-ranking attorney in the Office of Mental Retardation and Developmental Disabilities. Adler was fired by the Republican administration of Governor Pataki on Dec. 6, 1996, just after his wife had embarrassed then-Attorney General Dennis C. Vacco, a Republican, in a lawsuit. Mrs. Adler, an assistant attorney general fired by Vacco, had alleged she was ousted for political reasons. Her case was dismissed, but not before pretrial discovery and depositions uncovered embarrassing and sensitive information, infuriating Republicans. The claim by Mr. Adler is based on the allegation that he was fired not for reasons of political patronage, which is permissible under decisions rendered in his wife’s case. Rather, Mr. Adler contends that Republican officials targeted him to get back at Mrs. Adler, which the 2nd U.S. Circuit Court of Appeals ruled is impermissible. But the defense in that case on Friday opened a door that advocates for Bruno vigorously opposed opening. FIRST AMENDMENT The defendants deny retribution and instead claim that Mr. Adler was terminated simply to make room for loyalists to the Republicans, who assumed power for the first time in two decades when Pataki unseated Democratic Governor Mario Cuomo in 1994. Since the defendants claim they ousted Mr. Adler to make room for politically connected candidates, and since Mr. Adler apparently had the support of key Republicans such as Bruno, that raises a question of whether the patronage defense is merely a “pretext,” Homer said. John T. Casey Jr., appearing for Bruno, argued strenuously that the discovery sought by the plaintiffs is protected by both the First Amendment and the Speech and Debate Clause of Article I, Section Six, of the U.S Constitution, which shields members of Congress from being “questioned in any other place” for their legislative acts. Casey said that requiring Bruno to reveal the behind-the-scenes maneuvering for patronage positions would violate the senator’s free speech and association rights, and chill an important component of the political process. “Once you start opening up the files of top political officials … there would be chaos,” Casey said. “Government would come to a halt.” Casey said the selection of patronage employees requires a “full and confidential review of records not subject to discovery in future litigation.” He also said Senator Bruno has a First Amendment right to communicate his thoughts on prospective appointees, and a reasonable expectation that those communications will be private. Homer responded: “The First Amendment also protects the people’s right to know, Mr. Casey.” RELEVANCE CHALLENGED Casey also challenged the relevance of the information sought by Mrs. Adler, who is acting as counsel to her husband. He stressed that Mr. Adler was just a constituent of Bruno, that he had never met the senator or campaigned for him, had never donated to his campaign and was not the type of Republican who would warrant the protection of the majority leader. Mrs. Adler, in her opposition to the motion to quash, described Bruno’s opposition to the subpoenas as a “desperate attempt” to avoid a potentially compromising position. Mrs. Adler said that the Senator is in a position of either having to admit that he failed to advocate on behalf of a client, as Mr. Adler contends he promised to do, or acknowledge that he had no influence with Pataki on this matter. Homer’s discovery order, however, does not go nearly as far as Mrs. Adler had requested. In addition to denying, for now, her request to depose Bruno, Homer limited his order to a fairly narrow category of political appointees seeking to retain positions in the Pataki Administration. Mrs. Adler had sought information not only on employees who wanted to keep their jobs, but also on people who sought to tap political connections, or did tap political connections, to secure positions.

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