Judge Eugene Faughnan of Binghamton will hear oral arguments tomorrow in the two lawsuits filed by County Executive Chris Moss and County Attorney Hyder Hussain against the Chemung County Legislature, its lawyer Bryan Maggs and former legislative clerk Linda Palmer.

Arguments will begin at 9:30 a.m. in the Hazlett Building’s Third Floor courtroom. Live-streaming is not permitted, but the proceeding is open to the public.

Procedure

Attorney William Kinnery, hired by the Legislature and Palmer, and Attorney Bryan Maggs, representing himself, filed a motion last week to consolidate the two lawsuits. I expect Judge Faughnan will grant it as the issues involve the same parties and seem to be inextricably intertwined.

At the hearing, Robert Rosborough, the attorney hired by Moss and Hussain to bring the lawsuits, will be permitted to argue first as he represents the Petitioners, i.e. the people who brought the actions. There are no hard rules about how long his argument can last, but judges can – and often do – tell lawyers to stop arguing when they feel their questions have been adequately answered.

Attorney Kinnery will likely argue next, followed by Attorney Maggs. It is possible Judge Faughnan will allow each side to rebut depending on whether he feels further argument is necessary.

Many people have asked whether I believe Judge Faughnan will issue a decision tomorrow morning. I highly doubt it. Instead, my guess is that he will issue a written decision sometime within the next 4-6 weeks.

Substance

I have written several posts about the lawsuits, including this overview of the issues from March 12th.

Rather than recapping what I have written, I have embedded all of the official filings below so that anyone who is interested has a chance to review them ahead of tomorrow’s arguments.

Notice and Petition from Rosborough on behalf of Petitioners in Lawsuit #1:

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Download [13.21 MB]

Affidavit and Memorandum of Law from Rosborough on behalf of Petitioners in Lawsuit #1:

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Download [6.55 MB]

Respondents’ Answer, Affidavits and Memorandum of Law in Lawsuit #1:

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Download [5.12 MB]

Notice, Petition and Memorandum of Law from Rosborough on behalf of Petitioners in Lawsuit #2:

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Download [5.26 MB]

Exhibits attached by Rosborough to Lawsuit #2

(The exhibits are too voluminous to allow the preview function to work, but they can be downloaded.)

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Download [20.22 MB]

Respondents’ Answer, Affidavits and Memorandum of Law in Lawsuit #2:

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Download [7.21 MB]

Who pays?

The Legislature voted unanimously to pay for private counsel in this matter, and its Personnel Committee voted unanimously against using taxpayer money to pay for Rosborough.

The rationale is straightforward.

The first time Moss informed the Legislature that he intended to fire Attorney Maggs, he was asked by several legislators if we could find some way to sort through this issue short of litigation. Moss’ response was that had made up his mind, and if we wanted to challenge him we would have to do so in court.

Since then several legislators – including myself – have tried to find ways to resolve this matter without the need for lawyers and litigation, but it has been unsuccessful. Short of acquiescing and thereby fundamentally changing the way the Legislature has functioned vis-a-vis the Executive Branch for nearly 40 years, we have had no choice but to defend our actions. This case is not about the current legislators themselves but rather the governing body on which we have all been elected to serve.

It is interesting to note that New York State’s Appellate Division for the Third Department issued a unanimous ruling today in the case of Krusen v. Moss. The case stems from allegedly defamatory statements made by Moss during last year’s campaign involving Krusen’s use of a county-issued gas card.

Aside from upholding Krusen’s claims, the Third Department found Moss was not acting in his official capacity when he made the statements, meaning he is not protected from being sued and arguably cannot ask taxpayers to cover his attorney’s fees.

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To the best of my knowledge Moss has amassed substantial bills for his defense in the Krusen v. Moss case, and likely done the same in the cases against the Legislature.

As I have stated many times in this blog, my hope is that we can move past these issues soon in order to focus on doing things that actually make a difference for our community.

–Christina Sonsire