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Lawyers’ fees still debated in judge v. DA case

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HUDSON—District Attorney Paul Czajka did not alter court documents and Kinderhook Town and Village Justice David Dellehunt gets his attorneys’ fees paid.

These points are part of a stipulated court settlement recently reached in the protracted legal clash between District Attorney Paul Czajka and Kinderhook Town and Village Justice David Dellehunt.

But whether the settlement means the men’s bouts over prosecutorial discretion have ended seems to be a matter of opinion.

DA Czajka told The Columbia Paper in a September 7 interview at his office that the Dellehunt matter has resulted in such a “long and tortuous series of events, I would be happy to sit on this for the time being.”

While in a September 14 phone interview, Columbia County Democratic Committee Chairman Peter Bujanow said questions linger and certain aspects of the case remain unresolved.

After all, it is an election year.

The settlement document, dated September 1 and signed by State Supreme Court Judge Kevin M. Dowd, comes in response to the February 19 Appellate Division memorandum and order that dealt with requests made by the DA’s office for electronic recordings and transcripts of various proceedings in Kinderhook Town and Village Courts over which Justice Dellehunt presided.

The appellate court came down hard on the DA, calling for a hearing to get the facts on what the justices called the “grave and disturbing nature” of the DA’s conduct, which centered around deficiencies in the DA’s requests for the recordings, such as not following proper procedure, asking for a transcript of a town court session on an inaccurate date and most notably altering a court document without court permission.

The September 1 stipulation says that $43,000 will be paid and split between the Village and Town of Kinderhook in full satisfaction of all of Justice Dellehunt’s “claims for sanctions, expenses and attorney’s fees.”

The Columbia County Board of Supervisors picked up the tab for Judge Dellehunt’s attorney’s fees in August along with those amounting to $115,000 incurred by former Columbia County Department of Social Services Commissioner Paul Mossman, who sued the DA in an unrelated case two years ago. More about the Mossman case appears in a related sidebar.

The stipulation was reached at least in part because “the parties are desirous of avoiding the expense associated with conducting a hearing on the issues of sanctions, counsel fees and expenses.” It contains a signed statement by former Columbia County Assistant District Attorney Dominic J. Cornelius in which he states that he was assigned to prepare the documents seeking a court order to get Justice Dellehunt to transmit the electronic recordings sought by the DA’s office. After he noticed an omission on the document, which neglected to also include Justice Dellehunt in his capacity as village justice, Mr. Cornelius said he called the office of Acting Supreme Court Judge Cathryn Doyle, who had already signed the order, to notify her and get permission to make the insertion on the document. Mr. Cornelius said he got verbal permission and made the handwritten note on the document. While DA Czajka knew that Mr. Cornelius was preparing the documents, the DA “did not take part in my communications with the court which resulted in the addition of Judge Dellehunt in his capacity as Village Justice nor was he involved in the physical change to the documents,” Mr. Cornelius stated.

Mr. Cornelius writes that he doesn’t recall speaking with the DA after his call to Judge Doyle nor informing him about the change.

DA Czajka said in the interview that allegations that he had altered that document were “solely speculation” and with the stipulation signed by Judge Dowd he is “completely exonerated.”

With regard to the “frivolous and harassing” conduct alleged by Justice Dellehunt because his court was interfered with when the DA filed more than 100 motions seeking his recusal from presiding over criminal and vehicle and traffic matters, DA Czajka said he was acting as directed by Justice Dellehunt.

The DA noted that Justice Dellehunt could not be represented in legal matters against the DA by Kinderhook village or town attorneys because they are the county attorney or assistant county attorney.

Justice Dellehunt did have attorneys from the state Office of Court Administration (OCA) intervene on his behalf without charge, and the DA says he consented to that. Justice Dellehunt works for the OCA as special counsel. Justice Dellehunt also retained “his old law firm”—Cooper, Irving and Savage—in an effort to overturn Judge Doyle’s decision in the DA’s favor, Mr. Czajka said.

Had the matter gone to a hearing, instead of being settled, “attorneys’ fees could have doubled or tripled all because of false allegations against me,” said the DA. “I’m still hopeful insurance company will reimburse county for $43,000,” he added.

County Democratic Committee Chair Bujanow said in a phone interview, “It’s a shame that taxpayers have to pay legal fees of this magnitude to address these types of issues instead of prosecuting criminals.”

Mr. Bujanow said there should be a distinction made between sanctions and a settlement, noting the only matter the stipulation addresses is the amount of money expended by the village and town of Kinderhook. He said the question of frivolous and harassing conduct by the DA was not resolved.

“It’s not a campaign issue and it is. It reflects on the character” of the DA, he said.

Referring back to the February court documents, Mr. Bujanow noted, “it’s not Democrats saying they were ‘startled’ or that [the DA’s] actions were ‘grave and disturbing’ it’s the judges saying that.” Mr. Bujanow, believes those matters are yet to be addressed.

The entity that investigates such complaints is the State Supreme Court, Appellate Division Third Judicial Department Committee on Professional Standards, operating as a part of the Unified Court System.

Reached by The Columbia Paper, Chief Attorney Monica Duffy said everything the committee does is covered under Judiciary Law 90-10. All papers, records and documents relating to attorney conduct are private, sealed and confidential. The committee may, after an investigation, issue a disciplinary letter, which is also confidential. However if it’s filed with the court and the court issues a disciplinary decision it becomes public. She said that the committee receives 1,200 complaints/year and the majority are investigated and closed without action. An attorney who is the subject of an investigation or complaint may not even be aware such an investigation is ongoing until it gets to a point where the committee needs information from them or puts them on notice, she said.

Asked if he is under investigation by the committee, DA Czajka said he knows he was not reported by Justice Dellehunt for frivolous or harassing conduct, because if the judge had made such a complaint, he would have had to, by law, disqualify himself from presiding in all cases involving the DA while the complaint is pending.

Mr. Czajka, a former county judge, noted last week the state’s highest court, the Court of Appeals, issued an opinion in May that states, “Under the doctrine of separation of powers, courts lack the authority to compel the prosecution of criminal actions.” That issue has been the primary point of the contention between Justice Dellehunt and the DA for years.

“If a judge had that ability,” said the DA, “I’d still be a judge.”

To contact Diane Valden email dvalden@columbiapaper.com

Withheld records prove costly

HUDSON—By resolution dated August 12, the Columbia County Board of Supervisors authorized the payment of $115,000 to the law firm of Hinckley Allen Snyder, LLP, for services rendered to former Columbia County Department of Social Services (DSS) Commissioner Paul Mossman, who won a court appeal seeking payment of his attorney’s fees.

In March 2013, Columbia County District Attorney Paul Czajka subpoenaed Mr. Mossman to appear before a grand jury to produce certain records having to do with business relationships between DSS and two contractors.

Mr. Mossman objected and sued on the basis that children were named in the records and the DA, who was formerly a county judge who heard cases involving the children, is precluded by Judiciary Law from issuing it.

Columbia County Court Judge Richard Koweek refused to quash the subpoena and later the Supreme Court Appellate Division noted that though the subpoena did reference named children, it did not relate to any court proceedings involving the children but rather social services provided to the children by the contractors.

District Attorney Czajka said in an interview last week that the Court of Appeals has ruled that if a social services worker knows something with regard to a criminal case, the district attorney is deemed to also know it. The same premise holds true for police, and a DA must turn over statements a defendant makes to law enforcement or DSS workers to the defense in a criminal case.

“We had to have the records. We’re responsible for knowing what is in the records, so when [Mr.] Mossman would not give them willingly, I subpoenaed them and it ended up in court,” said the DA. Though Mr. Mossman could have used attorneys available to him through the DSS as salaried employees, he hired an outside attorney, which he is allowed to do under Public Officers Law and be compensated for the costs according to an appellate court ruling.

Mr. Mossman lost his appeal over the records and they were granted to the DA after two and a half years.

“I did not cost the county a penny. [Mr.] Mossman hired the outside attorney,” said the DA.

The investigation connected to the records continues, said the DA, and so far has resulted in the arrest and incarceration of four people for child abuse.

“Difficulties in prosecuting the cases are now going to be magnified because it took me over two years to get the records,” he said. –Diane Valden

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