In the lawsuit brought by Saratoga County District Attorney Karen Heggen against Saratoga Springs Mayor Ron Kim and Commissioner of Public Safety James Montagnino, lawyers made what was apparently final arguments in front of Justice Dianne N. Freestone on Feb. 6 in her chambers.
Heggen’s outside counsel hired for this matter, Karl Jay Sleight of Lippes Mathias, said he had no comment on the discussions from the hearing with Freestone. Benjamin F. Neidl of Jones Hacker Murphy is representing the mayor and commissioner.
This legal proceeding stems from the Nov. 20, 2022 gunfight in the early-morning hours on Broadway in downtown Saratoga Springs. Hours after the gunfight, Kim and Montagnino held a press conference and released police bodycam video to dispel what they said was a significant amount of misinformation being spread on social media.
A couple days after the press conference, Heggen won a Temporary Restraining Order that kept nearly all employees and officials in City Hall from speaking on the case. The TRO, or “gag order,” sunset on Dec. 22, 2022, and Heggen's attorney admitted in a filing that the broad gag on nearly all employees was untenable. She then pursued an Article 78 lawsuit including a Writ of Prohibition aimed at Montagnino and Kim alone.
Kim and Montagnino have maintained that they, as elected officials, have a right and obligation to openness and transparency and that Heggen had no right to attempt to gag them.
The lawsuit asked that Kim and Montagnino or their underlings and agents be stopped from releasing “evidence and information related to an ongoing grand jury investigation into the Investigation” and to stop Kim and Montagnino from making public commentary on the investigation and evidence.
The D.A.’s argument cites the need to keep the evidence out of the public eye until a Grand Jury can see it and decide if a criminal case can be brought and against whom it should be brought. Heggen said in an earlier interview that the commission form of government is partially to blame here as politicians are not usually privvy to the materials that Kim and Montagnino released. However, under the commission form, Montagnino is the head of the police department.
In a filing Neidl, the attorney for the mayor and commissioner, makes the case that the D.A.’s prohibitions are overly broad and define terms such as “evidence” and “investigation” too broadly.
“Respondents do…have the right and the responsibility to speak about matters of public concern, including crimes that occur within the City. The restraints proposed the District Attorney reflect overreaching intrusions into Respondents’ rights and responsibilities,” Neidl argued in a court filing.
The counselors-only hearing with the judge ran about 45 minutes and both sides were able to make their cases before the judge.
Montagnino said in an interview Feb. 6 that the attorneys said neither side had no expectation that a solution could be found.
Montagnino said that all of the paperwork has been filed, but the timing of the filing may mean that Heggen can run out the clock. The judge might be able to hold back from issuing a decision until as late as July. By then, the Grand Jury may have met and made a decision, making moot the Article 78 filing.
"The judge indicated she would issue a written decision in the near future,” Sleight, the D.A.’s attorney, said in a short interview Feb. 7.