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The two most powerful Republicans in New York state government — Gov. George Pataki and Senate Majority Leader Joseph L. Bruno — have been spared the burden of giving depositions in unrelated pending lawsuits. In both matters, federal judges in Albany, N.Y., said in recent days they would not readily compel deposition testimony from such high-ranking government officials. Magistrate Judges Randolph F. Treece and David R. Homer said in separate matters decided almost simultaneously that a two-prong test creates a lofty hurdle for a litigant attempting to depose a high government figure. That test requires that the litigant establish that the information sought is not available elsewhere, and that a deposition would not interfere with the official’s ability to carry out his or her duties. Judge Treece said the Oneida Indian Nation has not met the test with regard to the governor and one of his top aides, Secretary to the Governor Bradford Race — at least not yet. Similarly, Judge Homer said former state attorney Alan M. Adler has not met his burden with respect to Bruno. The two cases are Pataki v. Oneida Indian Nation, 95-CV-0554, which was decided Friday, and Adler v. Pataki, 96-CV-1950, which was handed down Tuesday. Pataki v. Oneida Indian Nation arises out of a decision by the New York State Racing and Wagering Board that allowed the tribe to operate the Instant Multi-Game, a so-called slotless slot machine, at the Turning Stone Casino near Syracuse, N.Y. The Racing and Wagering Board granted its approval on Nov. 23, 1994, just after Gov. Mario M. Cuomo was defeated in a re-election bid. Shortly after taking office, Gov. Pataki challenged the determination, arguing that only a governor has the authority to issue use of Instant Multi-Game, and since neither he nor Gov. Cuomo did so, there was no authority under the Indian Gaming Regulatory Act of 1993 to operate the electronic gambling device. Since then, the state has offered to permit Instant Multi-Game at Turning Stone in exchange for a cut of the revenues. That offer, the Oneidas contend, is evidence of bad faith. The Oneida Nation responded with a motion to compel depositions from Pataki, Race, former Associate Counsel to the Governor Judith Hard and Special Advisor to the Governor Michael Clemente. Magistrate Judge Treece said he would not order the governor and Race to submit to depositions without a “showing that all alternative sources have been exhausted and that their knowledge is truly unique.” However, he is allowing depositions of Hard, within the confines of the attorney-client privilege, and of Clemente. “Without a doubt, Governor Pataki is … a high-ranking government official for whom the court should not lightly impose the burden of providing a deposition,” Judge Treece said. “Obviously, he is consumed daily with matters of statewide and even national relevance. The same holds true for [Mr. Race]. No one else is so intimately and inextricably involved with the Governor on the operation of state government and the formulation of policy at the highest level.” Treece said the information sought may be available from other sources, such as Clemente. On Hard, now considered a candidate for U.S. Attorney for the Northern District, Judge Treece said the former gubernatorial associate counsel does not qualify as a high-ranking government official. He observed that Hard may be restrained by the privilege to some extent, and noted that “depositions of attorneys are generally frowned upon” because of the potential of attempts “to invade the sacrosanct protected relationship between a lawyer and her client.” However, Treece said Hard’s “observations, nonlegal conversations, her personal statements and statement of others that she heard” and communications “she may have gleaned personally are fertile areas of inquiry.” Arguing the motion were Dwight A. Healy of White & Case in Manhattan for the governor, and George F. Carpinello of Barrett Gravante Carpinello & Stern in Albany and William W. Taylor III of Zuckerman Spaeder in Washington, D.C., for the Oneida Indian Nation. RETALIATION CLAIMED The Adler matter is a long-simmering matter of political intrigue. It involves a former state attorney who claims he was fired from his government position because his wife, also a former State lawyer, had sued allies of Gov. Pataki. Adler was a senior attorney in the Office of Mental Retardation and Developmental Disabilities. He was fired by Gov. Pataki’s Republican administration on Dec. 6, 1996, just after his wife had embarrassed then-Attorney General Dennis C. Vacco, a Republican, in a lawsuit. Mrs. Adler, who had been an assistant attorney general until she resigned, contended that she was constructively discharged for political reasons. Her suit, which was pending at the time Mr. Adler was fired, was eventually dismissed. While the courts said that Mrs. Adler could be replaced for reasons of political patronage, they also said that Mr. Adler could not be ousted in retaliation for his wife’s litigation. Counsel for the administration contend that Mr. Adler was fired to make room for political appointees, and that his termination was unrelated to the litigation pursued by Mrs. Adler. Mrs. Adler, appearing for her husband, sought to depose Sen. Bruno and one of his top assistants, Director of Operations Richard Burdick. Her intent was to show that Mr. Adler had received endorsements from prominent Republicans such as Bruno and former Chief Judge Sol Wachtler, thus suggesting that the defense of political patronage was a pretext. Judge Homer previously ordered Burdick to submit to a deposition. But in his decision Tuesday, Homer refused to compel Bruno’s testimony. Magistrate Judge Homer said that while Bruno apparently instructed Burdick to attempt to help Adler retain his job, there is no evidence that the majority leader himself ever directly interceded. He characterized as “pure speculation” Mr. Adler’s contention that Bruno, if deposed, would testify differently than Burdick. Consequently, the court found that Mr. Adler could not clear the first prong of the high-ranking figure test, that of proving that the official to be deposed has unique information that is not available elsewhere. Appearing were Mrs. Adler for her husband; Frederic S. Newman and Melissa L. Weiss of Hoguet Newman & Regal in Manhattan for the governor and his aides; Franklyn H. Snitow and Richard A. Braunstein of Snitow Kanfer Holtzer & Millus in Manhattan for former Attorney General Vacco and his top assistant; and John T. Casey Jr. of Albany for Sen. Bruno.

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