ALAA Roots — An Unofficial Site

November 29, 1999

1999.11.29: Solidarity Meeting: “Support Our Transit Workers!”

Filed under: Labor Solidarity — nyclaw01 @ 12:12 pm
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From: LHerschel@HQEAST.HQ [mailto:LHerschel@HQEAST.HQ]
Sent: Monday, November 29, 1999 9:41 AM
To: Everyone At The Legal Aid Society@HQWEST.WEST
Subject: Solidarity Meeting: “Support Our Transit Workers!”

Support the Transit Workers Union (TWU) in their fight!  They are the first major city union to take on Giuliani, after years of wage freezes, cut backs and replacement of decent union jobs with workfare slavery.  However, especially with the solidarity of other city unions, they can beat Giuliani and the city!  A victory for transit workers could help turn the tide against Giuliani’s union bashing for workers across the city!!!!!!

Panel:
Support Our Transit Workers! – fighting Giuliani, fighting for us all -Dec. 4 @ 7 pm at 322 W. 48th St. (b/w 8th & 9th Ave.)
Speakers:
Roger Toussaint – Chairperson Track Division TWU Local 100, New Directions Mark Rosenthal – President Local 983 AFSME DC37, Committee for Real Change Shaun Harkin – UPS Striker, Teamster Local 804, International Socialist Organization Representatives of the United Federation of Teachers and the TWU

Endorsed by:  ( *organizations for identification only) The International Socialist Organization, Mark Rosenthal, President Local 983 AFSME DC37*, Bobby Lesko, Treasurer Local 3882 AFT*, Ray Markey, President Local 1930 AFSCME DC 37*, Howard Redmond, President Local 804 Teamsters*, Jim Reynolds, Jimmy Moment & Chris Williams, Shop Stewards Local 804 Teamsters

Call 212-502-0707 to  request childcare.

E-mail me back for more info.

November 23, 1999

1999.11.23: Union Update

[Download .pdf version: bulletin2]

Union Update
November 23, 1999
568 Broadway, Rm. 702A, New York, NY 10012-3225●212.343.0708●FAX 212.343.0966
Contents
●Delegate Council Meetings
●Remaining Union Elections
●Civil/Volunteer Funding
●Criminal Funding
●Levine Sentence Overturned

Delegate Council Meetings
The ALAA Delegate Council (former Executive Committee) will meet on Tuesday, December 7, 1999 and Tuesday, January 18, 2000. On the agenda for both meetings are remaining union elections (see below). The meetings will begin at 6:30 p.m., at ALAA HQ (agendas forthcoming).

Remaining Union Elections
The following ALAA offices will be elected in January:
●At-large Executive Board members.
●Union Trustees.
●Pension Trustees.
●Joint Affirmative Action Committee.
●Delegates.
Nominations will close for all but delegate positions at the December 7, 1999 Delegate Council meeting. Please consider running for one of these offices; each plays an essential role in ALAA¬‘s democratic structure. For details, please see the attached notice or call the Union office.

Civil/Volunteer Funding
On Tuesday, November 30, there will be important meetings concerning the status of City EAF funding. Volunteer Division: 2 p.m. at CLO; Civil Division: 6 p.m., at 90 Church Street.

All members in those divisions are strongly encouraged to attend their respective meetings.

Criminal Funding
ALAA, 1199 and the Society continue to move forward in parallel lawsuits to reverse the Giuliani administration’s five-year assault on The Legal Aid Society’s criminal work. Depositions of current and former administration officials begin the week of December 6.

Meanwhile, City and RFP defendants are trying to block further depositions, including that of the Mayor, with a motion for summary judgment, to which the unions and Society have responded with the attached brief.

Levine Sentence Overturned
The ten-day jail sentence imposed on Manhattan CDD attorney Arnold Levine by Criminal Court Judge Donna Recant has been overturned in the attached decision.

1999.11.23: Notice of Election

Filed under: Union Democracy and Structure,Written Report — nyclaw01 @ 12:48 pm
Tags:

[Original format: ELECTION2]

568 Broadway, Rm. 702A, New York, NY 10012-3225●212.343.0708●FAX 212.343.0966

Notice of Election

At-Large Executive Board Members, Union Trustees,

Pension Trustees, Affirmative Action Reps, and Delegates

Elections at the Delegate Council

Elections for the following positions will take place at the January 18, 2000 Delegate Council. Nominations should be sent to ALAA HQ as soon as possible, and must be received by the December 7, 1999 Delegate Council.

All positions require consistency and a substantial commitment of time and energy. All representatives will be provided with union training during 2000. Please email or call in nominations as soon as possible.

●At-Large Executive Board Members. The following issue/caucus representatives sit, with the union officers, on the ALAA Executive Board, for a term of three years, ALAA Bylaws, Art. VIII, § 2: (1) Affirmative Action (co-chairs the ALAA Joint Affirmative Action Committee); (2) Attorneys of Color of Legal Aid (ACLA)(nominated by ACLA); (3) Gay & Lesbian Caucus; (4) Health Benefits; (5) Health & Safety; (6) Junior Attorneys (Steps LG-4); and (7) Senior Attorneys (10 years+). Id., Art. VI, § 2.

The ACLA and Gay/Lesbian caucus representatives must be members of their respective constituencies. Id., Art. VIII, § 1.

“Except for the Health Benefits and Health and Safety representatives, the At-Large EB members will be responsible for calling regular ongoing meetings of the caucus or committee s/he represents and for arranging advance notice of such meetings to the membership.” Id., Art. VI, § 2.

●Union Trustees. Three elected union Vice-Presidents will serve as Union Trustees for a term of three years, Id., Art. V, § 1; Art. VIII, § 2, to “have general supervision over all funds and property of the Local Union.” UAW Constitution, Art. 40, § 12.

●Pension Trustees. The Society and ALAA each appoint three pension trustees to monitor and oversee the Staff Attorney Pension Plan. Union trustees are elected for a term of three years. ALAA Bylaws, Art. 8, § 2.

●Affirmative Action Representatives. Union representatives to the Joint ALAA Affirmative Action Committee include a co-chair and representatives/alternates from the following vice-presidential constituencies: (1) Civil Division; (2) Criminal Appeals Bureau/Capital Defense/Federal Defender; (3) CDD-Bronx; (4) CDD-Brooklyn; (5) CDD-Manhattan; (6) CDD-Queens; (7) Juvenile Rights Division; and (8) Volunteer Division/CLO.

Pursuant to Union contract, the Joint Committee, which began its work earlier this year, sets Society policy in regard to affirmative action. To date, the Committee has hired a new Society affirmative action officer and begun to revamp LAS recruitment. It is now organizing diversity training for K2000.

In-Office Delegate Elections

Delegates/Alternates will be elected in local offices from January 3-January 11, 2000.

The newly-elected Delegate Council will first meet on January 18, 1999, at which time it will elect the remaining Executive Board members, trustees and other representatives (see above).

The increased member/delegate ratios are as follows: 0-14:1; 15-24:2; 25-34:3; 35-:4, etc. Each unit, regardless of its size, may elect a maximum of three ranked alternates. ALAA Bylaws, Art. V, § 2. All units will be notified in advance of the number of representatives to which they are entitled.

Delegates/Alternates are elected for a two-year term. Id., Art. VIII, § 2. Their responsibilities include: (1) Convening meetings of unit members; (2) Handling grievances; (3) Promoting dialogue between unit members and the rest of the union; (4) Working with other office representatives (if any), their Vice-President, and union headquarters; (5) Participating in meetings of the Delegate Council and other union activities; and (6) Generally carrying out union policy.

(November 23, 1999)

1999.11.23: Union Update

Filed under: Collective Bargaining,Union Democracy and Structure — nyclaw01 @ 12:28 pm
Tags:

Union Update

November 23, 1999

568 Broadway, Rm. 702A, New York, NY 10012-3225●212.343.0708●FAX 212.343.0966

 

Contents

●Delegate Council Meetings

●Remaining Union Elections

●Civil/Volunteer Funding

●Criminal Funding

●Levine Sentence Overturned

 

Delegate Council Meetings

The ALAA Delegate Council (former Executive Committee) will meet on Tuesday, December 7, 1999 and Tuesday, January 18, 2000. On the agenda for both meetings are remaining union elections (see below). The meetings will begin at 6:30 p.m., at ALAA HQ (agendas forthcoming).

 

Remaining Union Elections

The following ALAA offices will be elected in January:

●At-large Executive Board members.

●Union Trustees.

●Pension Trustees.

●Joint Affirmative Action Committee.

●Delegates.

Nominations will close for all but delegate positions at the December 7, 1999 Delegate Council meeting. Please consider running for one of these offices; each plays an essential role in ALAA¬‘s democratic structure. For details, please see the attached notice or call the Union office.

 

Civil/Volunteer Funding

On Tuesday, November 30, there will be important meetings concerning the status of City EAF funding. Volunteer Division: 2 p.m. at CLO; Civil Division: 6 p.m., at 90 Church Street.

All members in those divisions are strongly encouraged to attend their respective meetings.

 

Criminal Funding

ALAA, 1199 and the Society continue to move forward in parallel lawsuits to reverse the Giuliani administration’s five-year assault on The Legal Aid Society’s criminal work. Depositions of current and former administration officials begin the week of December 6.

Meanwhile, City and RFP defendants are trying to block further depositions, including that of the Mayor, with a motion for summary judgment, to which the unions and Society have responded with the attached brief.

 

Levine Sentence Overturned

The ten-day jail sentence imposed on Manhattan CDD attorney Arnold Levine by Criminal Court Judge Donna Recant has been overturned in the attached decision.

 

 

November 8, 1999

1999.11.08: MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTIONS FOR JUDGMENT ON THE PLEADINGS AND SUMMARY JUDGMENT

Filed under: 1994 Strike,Funding,Indigent Defense — nyclaw01 @ 12:25 pm
Tags:

Original format: BRIEF

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK

—————————————

x
THE LEGAL AID SOCIETY,Plaintiff,

v.

THE CITY OF NEW YORK ET AL,

Defendants,

:::::::::

96 Civ. 5141 (SHS)

—————————————

x

—————————————

x

THE ASSOCIATION OFLEGAL AID ATTORNEYS ET AL.,

Plaintiffs,

v.

THE CITY OF NEW YORK ET AL,

Defendants.

:::::::::

:

:

96 Civ. 8137 (SHS)

—————————————

x

MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTIONS

FOR JUDGMENT ON THE PLEADINGS AND SUMMARY JUDGMENT

Alan Levine

207 West 106th St., Suite 11C

New York, New York 10025

(212) 665-6711

Nancy Chang

Center for Constitutional Rights

666 Broadway, 7th Floor

New York, New York 10012

(212) 614-6420/6464

Counsel to Plaintiff Association of

Legal Aid Attorneys

 

 

D. Stuart Meiklejohn

Mark E. Coyne

125 Broad Street

New York, New York 10004

(212) 558-3665/4613

Counsel to Plaintiff The Legal Aid Society

 

Daniel Engelstein

Levy, Ratner & Behroozi, P.C.

80 Eighth Avenue

New York, New York 10011

(212) 627-8100

Counsel to Plaintiff 1199

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES…………………………………………………………………………………….    iii

The City’s Interference with………………………………………………………………………………………… 5


TABLE OF AUTHORITIES

 

CASES

 

Page

196 Owners Corp. v. Hampton Mgmt. Co.,

227 A.D. 2d 296, 642 N.Y. S. 2d 316  (1st Dep’t 1996)  ……………………………………………….. 16

67 Wall Street Co. v. Franklin National Bank,

37 N.Y. 2d 245, 371 N.Y.S.2d 915 (1975)  …………………………………………………………………. 16

Air Transp. Ass’n v. City & County of San Francisco,

992 F.Supp. 1149 (N.D. Cal. 1998)  ………………………………………………………………………….. 25

ALAA v. City of New York,

No. 96 Civ. 8137 (SHS), 1997 WL 620831 (S.D.N.Y. Oct. 8, 1997)  ……………………………….. 35

Alameda Newspapers, Inc. v. City of Oakland,

95 F.3d 1406 (9th Cir. 1996)  ……………………………………………………………………………… 23, 31

Allee v. Medrano,

416 U.S. 802 (1974)  …………………………………………………………………………………………….. 23

Allen v. City of Yonkers,

803 F.Supp. 679 (S.D.N.Y. 1992)  ……………………………………………………………………………. 21

Arizona v. California,

460 U.S. 605 (1983)  …………………………………………………………………………………………….. 13

Bogan v. Scott-Harris,

523 U.S. 44 (1998)  ………………………………………………………………………………………………. 17

Branum v. Clark,

927 F.2d 698 (2d Cir. 1991)  ……………………………………………………………………………………. 12

Brooklyn Inst. of Arts & Sciences v. City of New York,

—    F.Supp.2d —-, 1999 WL 989081 (E.D.N.Y. Nov. 1, 1999)  ……………………………………….. 29

Building & Constr. Trades Council v. Associated Builders & Contractors,

507 U.S. 218 (1993)  ……………………………………………………………………………………. 24, 30, 31

Cardinal Towing & Auto. Repair, Inc. v. City of Bedford,

180 F.3d 686 (5th Cir. 1999)  …………………………………………………………………………………… 24

City of St. Louis v. Prapotnik,

485 U.S. 112 (1998)  …………………………………………………………………………………………….. 19

 

Day v. Moscow,

955 F.2d 807 (2d Cir. 1992)  ……………………………………………………………………………………. 14

Dee-K Enterprises, Inc. v. Heveafil Sdn. Bhd.,

985 F.Supp. 640 (E.D. Va. 1997)  ……………………………………………………………………………. 33

Dews Construction,

231 N.L.R.B. 182 (1977), enf’d, 578 F.2d 1374 (3d Cir. 1978)  ……………………………………….. 32

EEOC v. Home Ins. Co.,

672 F.2d 252 (2d Cir. 1982)  ……………………………………………………………………………………. 24

Fogel v. Chestnutt,

668 F.2d 100 (2d Cir. 1981)  ………………………………………………………………………………. 13, 14

Gideon v. Wainwright,

372 U.S. 335 (1963)  …………………………………………………………………………………………….. 31

Goldberg v. Town of Rocky Hill,

973 F.2d 70 (2d Cir. 1992)  …………………………………………………………………………………….. 17

Golden State Transit v. City of Los Angeles,

493 U.S. 101 (1989)  …………………………………………………………………………………………….. 23

Greenwich Citizens Comm. v. Counties of Warren & Washington Indus.

_Dev. Agency, 77 F.3d 26 (2d Cir. 1996)  …………………………………………………………………….. 29

Guggenheim Found. v. Lubell,

77 N.Y.2d 311, 567 N.Y.S.2d 623 (1991)  ………………………………………………………………….. 34

Hirsch v. Weisman,

189 A.D.2d 643, 592 N.Y.S.2d 337 (1st Dep’t), leave to appeal dism’d,

81 N.Y.2d 1067, 601 N.Y.S.2d 584 (1993)  ………………………………………………………………… 35

Hunt v. Washington State Apple Advertising Comm’n,

432 U.S. 333 (1977)  …………………………………………………………………………………………….. 22

ILGO v. Giuliani,

143 F.3d 638 (2d Cir. 1998)  ……………………………………………………………………………………. 22

In re C.K. Rehner, Inc.,

106 A.D.2d 268, 483 N.Y.S.2d 1 (1st Dept. 1984)  ………………………………………………………. 35

Jacobson v. Sassower,

66 N.Y.2d 991, 499 N.Y.S.2d 381 (1985)  ………………………………………………………………….. 16

Jett v. Dallas Indep. Sch. Dist.,

491 U.S. 701 (1989)  …………………………………………………………………………………………….. 21

Kentucky v. Graham,

473 U.S. 159 (1985)  …………………………………………………………………………………………….. 17

Lechmere, Inc. v. NLRB,

502 U.S. 527 (1992)  …………………………………………………………………………………………….. 23

Legal Aid Soc’y  v. City of New York,

242 A.D.2d 423, 662 N.Y.S.2d 303 (1st Dep’t 1997)  ………………………………………………. 14, 35

Legal Aid Soc’y  v. City of New York,

No. 96 Civ. 1541 (SHS), 1997 WL 394609 (S.D.N.Y. Jul. 11, 1997)  ……………………………….. 35

Lividas v. Bradshaw,

512 U.S. 107 (1994)  …………………………………………………………………………………………….. 32

Machinists v. Wisconsin Employment Relations Comm’n,

427 U.S. 132 (1976)  …………………………………………………………………………………………….. 22

Metropolitan Edison Co. v. NLRB,

460 U.S. 693 (1983)  …………………………………………………………………………………………….. 14

NAACP v. Alabama ex rel. Patterson,

357 U.S. 449 (1958)  …………………………………………………………………………………………….. 23

NAACP v. Button,

371 U.S. 415 (1963)  …………………………………………………………………………………………….. 23

Nationwide Life Ins. Co. v. Bankers Leasing Ass’n,

182 F.3d 157 (2d Cir. 1999)  ……………………………………………………………………………………. 12

New York Tel. Co. v. New York Labor Dep’t,

440 U.S. 519 (1979)  …………………………………………………………………………………………….. 32

 

O’Hare Truck Service, Inc. v. City of Northlake,

518 U.S. 712 (1996)  …………………………………………………………………………………………….. 15

Patrick v. LeFevre,

745 F.2d 153 (2d Cir. 1984)  ……………………………………………………………………………………. 24

Perry v. Sindermann,

408 U.S. 593 (1972)  …………………………………………………………………………………………….. 15

Sheppard v. Beerman,

18 F.3d 147 (2d Cir.) cert. denied, 513 U.S. 816 (1994)  ………………………………………………… 12

Shumway v. UPS, Inc.,

118 F.3d 60 (2d Cir. 1997)  …………………………………………………………………………………….. 14

Soto-Lopez v. New York City Civil Service Comm’n.,

840 F.2d 162 (2d Cir. 1988)  …………………………………………………………………………………… .13

Subcontractors Trade Ass’n v. Koch,

62 N.Y.2d 422, 477 N.Y.S.2d 120 (1984) …………………………………………………………………… 19

Suss v. ASPCA,

823 F.Supp. 181 (S.D.N.Y. 1993)  ……………………………………………………………………………. 21

Time Warner Cable v. City of New York,

943 F.Supp. 1357 (S.D.N.Y. 1996)  ………………………………………………………………………….. 29

UAW v. Hoosier Cardinal Corp.,

383 U.S. 696 (1996)  …………………………………………………………………………………………….. 22

Under 21 v. City of New York,

65 N.Y.2d 344, 492 N.Y.S.2d 522 (1985)  ………………………………………………………………….. 19

United States v. Yonkers Bd. of Ed.,

856 F.2d 7 (2d Cir. 1988)  ………………………………………………………………………………….. 13, 14

Van-Go Transport Co. v. New York City Bd. of Ed.,

53 F.Supp.2d 278 (E.D.N.Y. 1999)  …………………………………………………………………….. 27, 28

Watergate II Apartments v. Buffalo Sewer Auth.,

46 N.Y.2d 52, N.Y.S.2d 821 (1978)  …………………………………………………………………………. 33

Westchester Legal Servs., Inc. v. County of Westchester,

607 F.Supp. 1379 (S.D.N.Y. 1985)  ………………………………………………………………………….. 15

STATUTES, CHARTERS AND RULES

29 U.S.C. § 158  …………………………………………………………………………………………………….. 30

29 U.S.C. § 185  …………………………………………………………………………………………………….. 22

Fed. R. Civ. P. 8  ……………………………………………………………………………………………………. 34

Fed. R. Civ. P. 12  ………………………………………………………………………………………………….. 33

Fed. R. Civ. P. 15  ………………………………………………………………………………………………….. 34

Fed. R. Civ. P. 19  ………………………………………………………………………………………………….. 34

N.Y. Civ. Serv. Law § 200  ………………………………………………………………………………………. 26

N.Y. CPLR § 3211  ………………………………………………………………………………………………… 34

N.Y. County Law § 722  ……………………………………………………………………………………… 15, 31

N.Y. City Charter  ……………………………………………………………………………………………… 18, 20

MISCELLANEOUS

57 N.Y. Jur.2d, Estoppel § 55 (1986)  ……………………………………………………………………… 18, 20

The Legal Aid Society (“Legal Aid” or “the Society”), the Association of Legal Aid Attorneys, Local 2325, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, AFL-CIO/CLC (“ALAA”) and 1199 National Health and Human Services Employees Union, AFL-CIO/CLC (“1199”; together with ALAA, the “Unions”) jointly submit this memorandum of law in opposition to Defen­dants’ motions for judgment on the pleadings and/or summary judgment[1]

These motions are the latest examples of Defendants’ ceaseless efforts to delay consideration of the merits of the case.  Given the unusual timing of these motions — in the midst of  discovery and on the heel of Plaintiffs’ efforts to depose the Mayor, his former Criminal Justice Coordinator, Katherine Lapp, and others — the real reason for these motions seems to be to shield key City officials from depositions.

Defendants’ motions may buy delay — though they do not deserve much delay — but not more.  The Mayor is the architect of every significant event underlying these lawsuits.  His testimony and Defendant Lapp’s about the reasons for his actions, and the weighing of that testimony by a finder of fact, is inevitable.  So, we believe, is the denial of these motions.

PRELIMINARY STATEMENT

The futility of Defendants’ motions becomes apparent when they are placed in context.  The Society and the Unions assert two federal claims.  First, the City interfered with federally-protected collective bargaining between Legal Aid and the Unions, and then punished them for exercising their labor law rights.  Second, the City has waged a campaign of retaliation against the Society and the Unions in response to criticism of the Mayor and others and because of the Society’s continued association with Union activists.

The Society also asserts four claims that arise under state and local law.  First, the City violated Section 722 of the New York County Law by (a) changing without City Council approval the City’s method of providing criminal defense services and (b) awarding contracts for the provision of such services to for-profit corporations.  Second, the City violated its Charter and the Rules of the Procurement Policy Board (“PPB Rules”) by (a) excluding Legal Aid from consideration under the First and Second RFPs and (b) awarding multiple contracts through those RFPs.  Third, the City again violated its Charter and the PPB Rules by awarding contracts under the Third RFP to entities that will charge the City more to do less work than the Society would have done.  Fourth, the City breached its contractual duty of good faith and fair dealing by frustrating Legal Aid’s ability to perform its contract with the City in 1994, and then terminating that contract, and is responsible for the injury the Society has sustained as a result.                        The only arguments advanced by Defendants in their motions that even attempt to address all of these claims are that Legal Aid (and, through Legal Aid, the Unions) waived, and should be estopped from asserting, their claims because the Society’s February 1995 indigent defense contract acknowledged that the City could replace Legal Aid with other providers.  The First Department, however, has already rejected these arguments in this very case.  In any event, in agreeing that the City could replace it with other providers — a right that the City (though not the Mayor) already had under state law — the Society certainly never agreed that the City could do so in order to punish the Plaintiffs for exercising their rights under federal law and the First Amendment.

Defendants offer two other reasons why the federal claims should be dismissed.  First, Defendants contend that the City was acting for legitimate proprietary reasons in terminating Legal Aid’s contracts, slashing its budgets, and embarking upon the RFP Program.  The First Department has already ruled, however, that such an intensely fact-driven defense cannot be decided now.  Legal Aid and the Unions have not been afforded the opportunity to depose the principal architects of the City’s conduct — including the Mayor and Defendant Lapp.  Moreover, the record, such as it is, shows that the Mayor’s actions were driven by a singularly non-proprietary motive, namely, his belief that lawyers should not be permitted to strike.

Second, Defendants argue that Plaintiffs’ damages claims are barred because the Mayor and his subordinates lack “policymak­ing” authority over the Society’s funding, and because they were acting as legislators.  The Mayor, however, felt no need to consult with the City Council — the only other municipal body that might be thought to be a policymaking body — when he unilaterally terminated all of the Society’s contracts with the City in retaliation for the strike, compelled Legal Aid to renegotiate its largest City contract, and auctioned off portions of Legal Aid’s caseloads to entities staffed largely by people who left the Society in the wake of draconian budget cuts.  These actions certainly reflected municipal authority and imposed municipal policy.  Even if they were “legislative” acts, the City would still be liable:  municipalities do not enjoy legislative immunity.

Defendants’ last assault on the federal claims is the argument that the Unions lack standing to challenge the City’s conduct, because that conduct did not harm the Unions or its members directly.  The Unions have alleged, however, direct injury to them and their members, which the Unions have standing to vindicate.

As to the Society’s state and local law claims, Defendants offer a series of arguments that have all the hallmarks of confession and avoidance:

  • Defendants argue that Legal Aid’s challenges to the First and Second RFPs are barred because the Society did not exhaust its administrative remedies.   There is no need to exhaust administra­tive remedies, however, when doing so would be futile.  That certainly was the case here; a fact highlighted by the peremptory manner in which the Criminal Justice Coordinator dealt with Legal Aid’s challenge to the Third RFP.
  • AA and CAL ─ but not the City ─ argue that because Legal Aid was missing a page from its Third RFP proposals, the Society was not eligible to receive a contract under the Third RFP.  The Society’s proposals, however, did not materially vary from what the Third RFP required.
  • Finally, Defendants argue, incredibly, that because Legal Aid did not join CAL as a defendant until after the statute of limitations on the Society’s claims concerning the Second RFP had expired, those claims must be dismissed for failure to join indispensable parties.  A claim must be dismissed only if an indispensable party cannot be joined.  That is not the case here.  CAL resides in New York, and its joinder has not deprived this Court of subject matter jurisdiction in this action.

For these reasons, Defendants’ motions should be denied with dispatch, and the parties should be directed to complete discovery expeditiously and prepare for trial.

STATEMENT OF FACTS

The City and AA have submitted statements of allegedly “undisputed” facts.  These statements are in many respects inaccurate or contested, and in any event they do not constitute a legal basis for dismissal of Plaintiffs’ claims.

  1. A.                 The Society’s Role in Providing
    Legal Representation to the Poor

The Society is a not-for-profit organization that provides legal represen­tation in both civil and criminal matters to individuals who cannot afford a lawyer.  Legal Aid is the nation’s oldest and largest provider of legal services for the poor.  Pursuant to the plan for providing counsel to indigent criminal Defendants (the “Plan”) adopted by the City of New York (the “City”) in 1966, the Society represents all indigent defen­dants within the City with certain exceptions.  (LAS Compl. ¶¶ 1, 13, 29).

For almost thirty years, the Plan remained in place with successive contracts between the City and Legal Aid, supplemented 18-B lawyers and other not-for-profit legal aid bureaus.  (LAS Compl. ¶ 31).  In June 1994, in a clear reaffirmation of Legal Aid’s role in the Plan as a qualified and efficient provider of legal services, the Giuliani administration (“Administration”) an­nounced that it was shift­ing from the 18-B Panel in Manhattan to the Soci­ety all cases that Legal Aid could take.  The Administration explicitly recog­nized that this shift would reduce 18-B Panel expenses and improve the quality of Constitutionally-mandated services.  (Id. at ¶ 36 & Exh. B).

  1. B.                 ­Labor Relations at the Society Before 1994

In 1968, lawyers at Legal Aid formed ALAA.  Since 1969, Legal Aid has en­gaged in col­lective bargaining with ALAA, as it has with 1199 National Health & Human Service Employees Unions (SEIU) (AFL-CIO), which represents the Society’s non-legal staff.  (LAS Compl. ¶ 32).  For the most part, the collective bargaining has produced timely and effective contracts with uninterrupted performance by Legal Aid lawyers.

There have been strikes on occasion.  During those strikes, Legal Aid supervisors have stepped in to provide essential coverage, and striking lawyers whose clients were on trial continued to represent them.  In most cases, Legal Aid lawyers covered new arraignments as well.  In all cases (at times with increased use of lawyers from the 18-B panels), all criminal defendants entitled to appointed counsel were represented.  (LAS Compl. ¶ 33; 1/9/97 Letwin Decl. ¶ 20).

After the longest stoppage, which occurred in 1982, the City considered whether it should look at alterna­tive arrangements for indigent criminal defense.  The Com­mission appointed by Mayor Koch to investigate and report on the strike recommended that a public defender be authorized but the positions not filled.  No such amendment to the Plan was formally consid­ered by the City Council because the projected cost was seen to be prohibitively high.  (LAS Compl. ¶ 34).  In addition, it was perceived that public defenders, as employees of the City, could not act as independently as could Legal Aid.  (LAS Compl. Exh. B).

  1. The City’s Interference with

the Society’s Labor Relations

In 1994, Legal Aid’s contract with ALAA was set to expire on Septem­ber 30.  By late September, collective bargaining for a new ALAA contract had resolved all but one relatively modest economic issue.  The staff lawyers wanted a 2% cash payment (i.e., one-time bonuses that would not be built into the salary struc­ture) in each of two contract years, to parallel the 4.5% payments allocated a few months earlier to Legal Aid supervisors.  The Society was prepared to offer the 2% payments, but wanted the second one to be offset by any increases that were required in the employer portion of healthcare contributions for the staff lawyers.  The staff lawyers did not want there to be any such offset possibility.  (LAS Compl. ¶¶ 35, 37-38).

At this juncture, the gap between the parties was less than $1 million per year, against the Society’s budget of $130 million for fiscal year 1995.  If left to their own devic­es the parties might well have resolved the issue amicably.  Legal Aid was prepared to consider absorbing the cost in­creases on its own, as it informed City officials City from time to time during September.  (LAS Compl. ¶ 38).

In late September, however, the City made it clear to Legal Aid that it did not want to see any in­crease in the Society’s offer.  The City supposedly was concerned about the precedential effect the Society bargaining with the ALAA would have on upcoming City bargaining with municipal employees.  (Id. at ¶¶ 39-40 & Exhs. D, E at 3, F at 2; 1/22/97 Batterman Aff. ¶¶ 2-6).  The City in effect told Legal Aid officials that they were not to concede on the offset question.

The City did not explain why it had the right to dictate the terms of the collective bargaining agreements between the Society, a private employ­er, and ALAA members, who are not public employees.  Nonetheless, Defendant Lapp said the City would “replace” the Society if there were a strike and reminded the ALAA that the Mayor had been personally responsible for devising the permanent replace­ment of unionized air traffic controllers who went on strike in 1981.  (LAS Compl. ¶ 39; 1/9/97 Letwin Aff. ¶ 31).

As a result of the City’s intrusion into the collective bargaining between the Society and the ALAA, the Society was unable to increase its proposal, the ALAA de­clined to accept the existing proposal, and on Saturday morning, October 1, 1994 at 12:01 a.m., ALAA members went on strike.  Arraignments were handled over that weekend by Legal Aid supervisors, and ALAA members continued repre­sentation of clients whose cases were on trial.  (1/22/97 Baum Aff. ¶ 3; 1/9/97 Letwin Decl. ¶ 40).  There were no disruptions in the delivery of legal services to the Society’s clients.  (LAS Compl. ¶ 42)[2]

The City reacted promptly and vociferously to the strike.  On Monday, October 3, the City pur­ported to cancel all Legal Aid contracts with the City, including contracts for civil services that were in no way affected by the strike.  (LAS Compl. ¶ 43 & Exhs. C, E; 12/6/96 Bath Aff. ¶ 3).  The announcement ignored the fact that the City was required to give ninety days’ notice of its intention to cancel the criminal defense contract.  It ignored the fact that there was no basis for claiming that any of the contracts for the delivery of civil legal services, to the homeless, the elderly, and other Legal Aid clients, had been breached.  And it ignored the fact that no criminal defen­dant was left without representation in any pending matter.

Legal Aid personnel maintained that all cases were being handled and that new ones could be staffed if the City would allow Legal Aid lawyers to appear.  (LAS Compl. ¶ 45).  The City apparently agreed:  several City officials, including the Mayor and Defendant Lapp, were quoted as saying that things were running smoothly, notwithstanding the strike.  Legal Aid also told the City it did not believe there was any basis for the assertion that contracts for civil legal work had been breached.  (LAS Compl. ¶ 43).  The Mayor, on the other hand, announced his view that lawyers should not be permitted to strike and that those who did strike were acting unethically.  (LAS Compl. ¶ 44; 11/9/99 Coyne Decl. Exh. R).

ALAA officials responded to the City’s actions with highly-publicized criticism.  Al­though Legal Aid and ALAA personnel were barred from the press confer­ence in which the Mayor announced that he was terminating the Society’s contract, Michael Letwin, the ALAA president (and a former Legal Aid employee), delivered to the media direct negative commentary on the Mayor’s perfor­mance.  The encoun­ter escalated in a widely-publicized exchange between Mr. Letwin and the Mayor as the latter, flanked by security guards and visibly angry, descended the front steps of City Hall to his car.  (12/6/96 Bath Aff. ¶ 2; LAS Compl. ¶ 45).  There appears to be little doubt that the Mayor has held Letwin’s comments against the Society.

On Tuesday, October 4, the Mayor said that the Society had to agree that any lawyer who did not return to work by Wednesday, October 5, would be excluded from any further representation paid for by the City.  (12/6/96 Bath Aff. ¶ 3; LAS Compl. ¶ 46).  He also said any new contract between the City and Legal Aid would have to include no-strike clauses that would survive the term of the Legal Aid/ALAA collective bargaining agreement.  (LAS Compl. ¶ 46 & Exh. H).  And he reiterated that lawyers should not be permitted to strike.  (Id.)

Faced with these demands, the Society and ALAA reached an interim arrangement pursuant to which ALAA law­yers would return to work, which they did on October 5.  (LAS Compl. ¶ 47).  A few months later, however, the Administration’s retaliatory cuts in the Society’s funding would force ALAA to renegotiate this agreement to avoid layoffs through major economic concessions.  (1/9/97 Letwin Decl. ¶ 53).

  1. C.                 The City’s Immediate Retaliation for
    the Strike and Criticism from Legal Aid

After the strike ended, the City began negotiating a “modification” of the Society’s indigent criminal defense contract.  The City warned that the amount of money available for Legal Aid would be very sub­stantially reduced, even though the Society’s workload would remain the same or increase.  (LAS Compl. ¶¶ 48-49 & Exh. J).  (Ironically, such funding reductions made it more difficult for Legal Aid to deal with any future strike, since the City insisted that Legal Aid meet this budget reduction by slashing its supervisory ranks. (12/5/96 Greenberg Aff. ¶ 4; 1/9/97 Letwin Decl. ¶ 20).)  The Society had absolutely no leverage in these negotiations.  The City had Legal Aid over a barrel, and took every advantage.  (10/25/99 Greenberg Aff. ¶ 7; 11/9/99 Brome Aff. ¶¶ 3-5).

The City and Legal Aid ultimately entered into a contract modification agreement in early February 1995 (the “Modification Agreement”).  (LAS Compl. at ¶ 51 & Exh. L).  Legal Aid had to take an open-ended number of cases in exchange for substantially reduced City funding.  Under the Modification Agreement, Legal Aid’s Fiscal Year 1995 criminal defense budget was immediately slashed from $79 million to $70 million, followed by another $4 million cut in the next fiscal year, with further reductions in years following.  (12/5/96 Greenberg Aff. ¶ 4; LAS Compl. ¶ 49).  The cumulative reductions in the Society’s budget in the years since 1994 have been approximately $80 million.  It was under these conditions, in language sought and drafted by the City, that Legal Aid acknowledged that it could be replaced, something the City could have done under the prior contract and under state law. (10/25/99 Greenberg Aff. ¶ 5; 11/9/99 Brome Aff. ¶ 6).

  1. D.                 The City’s Further Retaliation
    Against Legal Aid
    __________

Although it had already caused substantial damage to the Society, the City’s campaign of retaliation did not end.  The City embarked upon a program to divert cases from Legal Aid to smaller, non-union organizations.  On October 20, 1995, the City’s Office of the Coordinator of Criminal Justice issued a “Request for Proposals for Indigent Criminal Defense Services”  (PIN # 00296DMPS090) (as amended, the “First RFP”) the principal purpose of which was to justify further cuts in the Society’s budget.  ­ (LAS Compl. ¶ 54).

The First RFP sought proposals from contractors to handle approximately 20% of the Society’s annual criminal defense workload overall, though it called for elimination of the Richmond County office.  (LAS Compl. ¶ 54).  Legal Aid immediately sought clarification from the City as to whether it would be permitted to submit a proposal in response to the First RFP.  Just nine days before proposals were due, the City clarified that “[g]iven the purpose of the RFP, as set forth therein, a proposal sub­mitted by the Legal Aid Society would be deemed not responsive.”  The City justified this exclusion on the grounds that the City needed “backup” in the event of a future strike, even though none was then foreseen.  (LAS Compl. ¶ 56).

In March 1996, the City eventually executed contracts in March 1996 with three new organizations for the delivery of legal services to the poor:  These contracts supposedly represented roughly 9% of the Society’s caseload (although, in fact, that caseload did not decrease by that much (8/2/99 Greenberg Aff. ¶ 6)).  Fifty former Legal Aid employees, including many who left Legal Aid to establish or work for the alternate providers, took positions with these organizations.  (12/5/96 Green­berg Aff. ¶ 3).  These providers had capped caseloads, and could not be required under their contracts to pick up the cases of another provider incapacitated by a strike.

Having withheld awards in response to the First RFP for trial level representation in New York, Bronx, and Richmond Coun­ties and appellate representation in the First Depart­ment, the City issued a second RFP on November 7, 1996 (the “Second RFP”).  Like the First RFP, the Second RFP aimed to replace Legal Aid as legal representa­tive for the poor in a portion of the cases it handled, supposedly about 10% of the Society’s annual case­load.  Once again, Legal Aid was barred from submitting a proposal.  (LAS Compl. ¶ 58).  In May 1997, the City awarded contracts to New York County Defender Services, Inc., Bronx Defenders, Battiste, Aronowsky & Suchow, and the Center for Appellate Litigation.  Each of these contracts was for a two-year term, beginning July 1, 1997, with provision for two two-year renewals.  (LAS Compl. ¶ 59).

Finally, in March 1999 the City issued a “Request for Proposals for Indigent Criminal Defense Appellate Representation” (PIN #00299DMPS146) (the “Third RFP”) (LAS Compl. ¶ 60 & Exh. M).  The Third RFP covered 100 appeals in the First Department and 100 appeals in the Second Department.  These supposedly were to be cases that had already been or would be assigned to Legal Aid as the default provider, as opposed to conflicts cases, which Legal Aid could not handle anyway.  Thus, the Third RFP offered the prospect of additional resources that would permit Legal Aid to more effectively handle appeals in the First and Second Departments.  (LAS Compl. ¶ 60).

Unlike the first two RFPs, the Third RFP did not expressly exclude the Society from bidding.  But this distinction exalted form over substance.  Even though Legal Aid was far and away the lowest cost responsive and responsible bidder, the City awarded contracts to entities that will be charging it — and the taxpayers — $720,000 more than the Society would have charged over the first two contract years to handle eighty cases fewer than Legal Aid would have handled over the same time period.  (LAS Compl. ¶ 61; 7/12/99 Wycoff Aff. ¶ 3).  The City’s purported justification was that Legal Aid’s appellate backlog disqualified it from handling additional cases, even though providing Legal Aid the funds to be awarded under the Third RFP would obviously help alleviate that very same backlog.

ARGUMENT

The standards governing motions for judgment on the pleadings and motions for summary judgment are well-settled.  “In deciding a Rule 12(c) motion,” this Court “must apply the same standard as that applicable to a motion under Rule 12(b)(6).”  Sheppard v. Beerman, 18 F. 3d 147, 150 (2d Cir.) (internal quotation marks omitted), cert. denied, 513 U.S. 816 (1994).  “Under that test, a court must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant; it should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”. Id.  This standard is “applied with particular strictness when the plaintiff complains of a civil rights violation.”  Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991).

“A motion for summary judgment,” on the other hand, “may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no issue warrant judgment for the moving party as a matter of law.”  Nationwide Life Ins. Co. v. Bankers Leasing Ass’n, 182 F.3d 157, 160 (2d Cir. 1999).  “The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment, and in assessing the record to determine whether there is a genuine issue as to any material fact,” this Court must “resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought.”  Id.  “This admonition should especially be kept in mind when the inferences which the parties seek to have drawn deal with questions of motive, intent, and subjective feelings and reactions.”  Id. at 161.

Under these standards, Defendants’ motions must be denied.

I.
LEGAL AID HAS NOT WAIVED, AND IS NOT
ESTOPPED FROM ASSERTING, ITS CLAIMS
.

Defendants argue that, because Legal Aid signed an agreement — at a time when its very survival was in jeopardy — that said the City could look to other providers of indigent criminal defense services, Legal Aid and the Unions have waived and should be estopped from asserting their claims.  (City Br. (LAS) at 7-13; AA Br. at 1-15).  These arguments are foreclosed by the law of this case, and are meritless in any event:  Plaintiffs have not waived their claims and are not estopped from asserting them.

  1. E.                 The First Department Has Already Rejected
    Defendants’ Waiver and Estoppel Defenses.

“[W]hen a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.”  Arizona v. California, 460 U.S. 605, 618 (1983).  This basic principle — the law-of-the-case doctrine — “applies both to that which is expressly decided ‘as well [as] to everything that is decided by necessary implication.’”  United States v. Yonkers Bd. of Educ., 856 F.2d 7, 11 (2d Cir. 1988) (quoting Fogel v. Chestnutt, 668 F.2d 100, 108 (2d Cir. 1981) (Friendly, J.)).  The law-of-the-case doctrine “imposes a duty on a lower court to follow a ruling made by [a] reviewing court at an earlier stage of [the] case, and . . . the lower court has no discretion to disregard that duty.”  Soto-Lopez v. New York City Civil Serv. Comm’n, 840 F.2d 162, 168 (2d Cir. 1988).

The First Department has already heard, and rejected, the very waiver and estoppel arguments that Defendants are raising now.  In defending Justice Saxe’s decision to dismiss Legal Aid’s state law, PPB Rule and labor law claims, the City and AA argued in their briefs that, by acknowledging that the City could contract with other providers of indigent criminal defense services, Legal Aid had waived, and should have been estopped from asserting, its labor law, state law and PPB Rules claims.  (Coyne Decl. Exhs. V, W).  In so arguing, the City and AA were repeating arguments they made to Justice Saxe in their verified answers and in their memoranda of law opposing Legal Aid’s request for relief in the trial court.  (Coyne Decl. Exhs. X, Y, and Z).

The First Department, reviewing the record de novo, was not persuaded by the waiver and estoppel arguments.  Instead, the court “reinsta­te[d]” the Society’s multiple awards and labor law claims because both claims were timely, and, with respect to the labor law claim, because the City’s “fact-driven contention” that it was acting as a proprietor was “a matter to be set up by the answer to the pleading, and to await proofs that develop in the course of further litigation herein.”  Legal Aid Soc’y v. City of New York, 242 A.D.2d 423, 423, 426, 662 N.Y.S.2d 303, 304, 305 (1st Dep’t 1997).

In so ruling, the First Department rejected “by necessary implication” the very waiver and estoppel arguments Defendants are raising now.  Fogel, 668 F.2d at 108.  Otherwise, the First Department would have affirmed Justice Saxe’s decision across the board.  See, e.g., Shumway v. UPS, Inc., 118 F.3d 60, 63 (2d Cir. 1997) (“It is beyond cavil that an appellate court may affirm the judgment of [a lower court] on any ground appearing in the record,” including “grounds different from those relied on by the court below.” ).  Consequently, “the law-of-the-case doctrine obliges” this Court to follow the decision of the First Department and reject Defendants’ latest invocation of waiver and estoppel.  Day v. Moscow, 955 F.2d 807, 812 (2d Cir. 1992)[3]

  1. F.                  Legal Aid Never Agreed That the City Could Violate the Constitution and
    Federal, State, and Local Laws in Contracting Work to Other Providers
    .

Even if the waiver argument were not already foreclosed, it is clear that Plaintiffs never intended to waive the legal claims advanced here.  This Court cannot “infer from a general contractual provision that the parties intended to waive a statutorily protected right unless the undertaking is ‘explicitly stated.’  More succinctly, the waiver must be clear and unmistakable.”  Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983).  There was no such waiver here.

To begin with, one cannot “waive” something one does not already have.  Since 1966, the Society’s status as a provider of indigent criminal defense services has as a matter of contract been terminable upon ninety days’ notice.  Beyond that, under state law, the City has always had the right to use other means of providing indigent defense representation:  it can establish a Public Defender Office, or it can rely exclusively on bar associations, instead of contracting with Legal Aid.  See N.Y. County Law § 722.  Thus, the so-called “waive­r” provision in the February 1995 Modification Agreement and testimony quoted by Defendants  did no more than acknowledge what had long been the case.

Thus, the City, AA and CAL essentially argue that because the Society has no contractual right to be the City’s only provider of indigent criminal defense services, it has no right to challenge the City’s conduct here.  However, the Supreme Court has repeatedly held that a plaintiff’s “lack of a contractual” right to a benefit, such as a government contract or tax exemption, “is immaterial to his free speech claim.”  Perry v. Sindermann, 408 U.S. 593, 597-98 (1972).  As the Court recently said in O’Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712  (1996),

[I]f the government could deny a benefit to a person be­cause of his constitu­tion­ally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited.  This would allow the government to “produce a result which [it] could not command directly.”  Such interference with consti­tu­tional rights is impermissible.

Id. at 721 (quoting Perry, 408 U.S. at 597 (quoting Speiser v. Randall, 357 U.S. 513, 526 (1958))).  See also Westchester Legal Servs., Inc. v. County of Westchester, 607 F. Supp. 1379 (S.D.N.Y. 1985) (termination of county funding in retaliation for lawsuits filed against county violates First Amendment).  The actions challenged here raise precisely the same constitutional issues.

Defendants’ estoppel argument makes even less sense.  Under their reasoning, an assault victim would be estopped from suing her attacker because she didn’t put up enough of a fight.  The “benefit” the Society received from the City was draconian cuts in funding that resulted in massive layoffs.  Legal Aid’s choices in February 1995 were either to take what the City offered, or shut down.  (11/9/99 Brome Aff. ¶¶ 2-5).  Beyond that, as Legal Aid has said from the outset, the way in which the City has proceeded is not lawful.  If the City thought it could trample on the Society’s labor law rights and the public interest, it did so at its own peril.  Estoppel is not available for those guilty of wrongdo­ing.  See 57 N.Y. Jur. 2d, Estoppel § 55 (1986).

Finally, it is well-settled in New York that “any ambiguity in” an agreement “should be construed against the drafter.”  196 Owners Corp. v. Hampton Mgmt. Co., 227 A.D.2d 296, 642 N.Y.S.2d 316, 317 (1st Dep’t 1996).  As New York’s highest court has held time and again, “a contract must be construed most strongly against the party who prepared it and favorably to a party who had no voice in the selection of its language.”  67 Wall Street Co. v. Franklin Nat’l Bank, 37 N.Y.2d 245, 249, 371 N.Y.S.2d 915, 918 (1975); accord, e.g., Jacobson v. Sassower, 66 N.Y.2d 991, 993, 499 N.Y.S.2d 381, 382 (1985) (same).  The contractual provision upon which Defendants base their waiver and estoppel arguments was drafted by the City.  (12/5/96 Greenberg Aff. ¶ 6; 11/9/99 Brome Aff. ¶ 6). Because Legal Aid had no say in the drafting of the “waiver” provision, and because that provision does not unambiguously state that Legal Aid was waiving its right to challenge wrongdoing by the City, this provision must be strictly construed against the City.

>II.
LEGISLATIVE IMMUNITY DOES NOT APPLY HERE, AND
LIABILITY HAS BEEN ESTABLISHED UNDER MONELL
.

Defendants make arguments about legislative immunity and municipal liability that, as presented by Defendants, appear to be linked.  The two arguments are, in fact, unrelated.  They are also without merit.

  1. G.                 Since No City Officials Have Been Sued in Their IndividualCapacities, Legislative Immunity Is Irrelevant Here.______

Defendants argue that the withdrawal of funding from the Society and the award of contracts to the alternate providers were essentially budgetary actions for which the City Council, and not the Mayor, was principally responsible, and, to the extent that the Mayor was involved, he was acting in a legislative capacity.  (City Br. (LAS) 13-14).  From this flawed factual premise they assert an even more gravely flawed legal conclusion:  under Bogan v. Scott-Harris, 523 U.S. 44 (1998), the municipal Defendants, including the City of New York, enjoy legislative immunity for their actions.

Bogan, however, held only that those who might be acting in a legislative capacity enjoy personal immunity from liability for their actions.  Since the individual Defendants have been sued only in their official capacities, they would not be personally liable for damages whether or not they were acting in a legislative capacity.  Kentucky v. Graham, 473 U.S. 159 (1985).  In addition, the Second Circuit has squarely rejected the argument that municipalities themselves are immune from suit for acts of City officials that violate constitutional and statutory rights.  Goldberg v. Town of Rocky Hill, 973 F.2d 70, 72-74 (2d Cir. 1992).  Accordingly, even if the individual Defendants had been sued in their personal capacities for acts deemed to be legislative, the City would remain liable for any damages caused by those acts.

  1. H.                Municipal Liability Attaches Here Because the Acts at Issue Were
    Committed or Endorsed by the Mayor on Behalf of the City
    .____

Plaintiffs’ federal claims rest on the allegation that the Mayor, in canceling the Society’s contract, later modifying it to impose draconian budget cuts on the Society, and awarding contracts under the RFPs, was retaliating against the Plaintiffs for acts that were protected by the NLRA and the First Amendment.  Defendants pretend that Plaintiffs are challenging only budgetary decisions approved or ratified by City Council, and that, therefore, the retaliatory animus held by the Mayor cannot be the basis for municipal liability under the Monell doctrine.  T­his argument does not withstand legal or factual analysis.

To begin with, it was not the City Council that intruded into the collective bargaining between Legal Aid and the Union.  Nor was it the City Council that unilateral­ly terminated all of the Society’s contracts with the City during and after the Union’s strike.  It was not the City Council that subsequently forced Legal Aid to modify its indigent criminal defense legal services contract with the City.  Nor was it the City Council that then designed the RFP Program.  And it was not the City Council that awarded contracts to the alternate providers under the three RFPs.  Quite the contrary:  it was the Mayor and his proxy, the Criminal Justice Coordinator, who did or ordered all of these things.

As a matter of law, these actions by the Mayor and Defendant Lapp were those of the City of New York.  Under the City Charter, the Mayor has “the authority to enter into contracts on the city’s behalf and to determine the manner of transacting its business affairs.”  Under 21 v. City of New York, 65 N.Y.2d 344, 357, 492 N.Y.S.2d 522, 527 (1985); see Subcontractors Trade Ass’n v. Koch, 62 N.Y.2d 422, 428, 477 N.Y.S.2d 120, 123 (1984).  With these powers comes the “power to regulate the terms of the city’s contracts” with entities such as Legal Aid.  Under 21, 65 N.Y.2d at 357-58, 492 N.Y.S.2d at 527.  Because under the City Charter, “policymaki­ng authority” in these areas lies with the Mayor, municipal liability will attach under § 1983.  City of St. Louis v. Prapot­nik, 485 U.S. 112, 125 (1988) (plurality opinion).

Defendants concede as much.  The City asserts, as an undisputed fact, that it was the Mayor who, on October 25, 1994, terminated the existing contract with the Society (City Statement ¶ 36), and that it was the Criminal Justice Coordinator who prepared the RFPs.  (City Statement ¶ 37).  When the RFPs were issued a year later, it was still the Mayor claiming full responsibility for their issuance.  According to Defendants, on October 20, 1995,

the Mayor issued a Statement in which he stated that . . . “‘[t]he issuance of this RFP fulfills my commitment made one year ago, when the strike by Legal Aid Society staff attorneys threatened to cripple the operations of our City’s criminal justice system, to ensure that the City has several contract providers in place to provide these constitutionally mandated services in order to prevent any one entity from threatening the continued operation of the system.’”

 

(City Statement ¶ 47).

As for budgetary matters, Defendants’ tortured effort to attribute to the City Council responsibility for the decision to withdraw funding from the Society and to fund the Alternate Providers not only defies the Mayor’s repeated boasts to the public that he alone deserved credit for those actions, it also ignores the reality of the budget process.  Under the City Charter, the Mayor has considerable power over budgetary matters.  The Mayor can withhold, set aside or impound funds in fiscal emergencies, and City agencies must expend “unit[s] of appropriation” in accordance with quarterly schedules set by the Mayor.  See N.Y. City Charter § 106.  The Mayor has not been shy about using these powers in his budget negotiations with the City Council.  For example, although for fiscal year 1999 the City Council allocated $10 million more to the Society than the Mayor had proposed (City Br. (LAS) at 16 n.4), the Mayor threatened to impound those funds unless the City Council reduced the appropriation.  (Coyne Decl. Exhs. T, U).  As a result, the Society received only $5 million more than what the Mayor had originally proposed.  (Coyne Decl. Exhs. S, T, U)

Because the reality is that the City Council must compromise with the Mayor on budget matters, the Mayor is a policymak­er even there.  At the least, the Mayor and City Council share authority in this area, a point even De­fendants concede. (City Br. (LAS) at 15).  Consequently, if, as Plaintiffs allege and the record shows, the Mayor slashed Legal Aid’s budget for an impermissible motive, and the City Council was forced to give the Mayor at least some of what he wanted, th­en the City is liable for the violation of Plaintiffs’ statutory and constitutional rights.  See, e.g., Suss v. ASPCA, 823 F. Supp. 181, 189 (S.D.N.Y. 1993); Allen v. City of Yonkers, 803 F. Supp. 679, 683 (S.D.N.Y. 1992).

Finally, while the causal connection between the Mayor’s actions and the municipal policy for which the City is liable under Monell seems unarguable, Defendants argue it nonetheless.  (City Br. (LAS) at 17 n.4; City Br. (Union) at 16 n.5).  To the extent that the connection is disputed, it is a factual matter to be resolved by the jury.  In Jett v. Dallas Independent School District, 491 U.S. 701, 737 (1989) — which Defendants cite (City Br. at 14) — the Supreme Court held that “[o]nce those officials who have the power to make official policy on a particular issue have been identified, it is for the jury to determine whether their decisions have caused the deprivation of rights at issue by policies which affirmatively command that it occur . . . or by acquiescence in a longstanding practice or custom which constitutes the ‘standard operating procedure’ of the local governmental entity.”  491 U.S. at 737 (emphasis added).

III.

BECAUSE THE UNIONS AND THEIR MEMBERS HAVE BEEN
DIRECTLY INJURED BY DEFENDANTS, THEY HAVE
STANDING TO ASSERT CLAIMS IN THIS SUIT.

Defendants’ argument that the Unions and their members lack standing to seek money damages and injunctive relief in this action is without merit.  (City Br. (Union) at 7-10).  Defendants rely on the flawed assumption that the Unions are derivatively asserting claims that belong in the first instance to the Society.  To the contrary, the Unions are suing in their capacities as organizations that have suffered direct injury from Defendants’ actions.

As the Second Circuit recently explained:

It is well-established that “organizations are entitled to sue on their own behalf for injuries they have sustained.”  To do so, the organization must “meet[] the same standing test that applies to individuals . . . [by] show[ing] actual or threatened injury in fact that is fairly traceable to the alleged illegal action and likely to be redressed by a favorable court decision.

ILGO v. Giuliani, 143 F.3d 638, 649 (2d Cir. 1998) (citations omitted) (alterations in original) (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982), and Spann v. Colonial Village, Inc., 899 F.2d 24, 27 (D.C.Cir. 1990)).

Moreover, it is fundamental to the federal labor law scheme that unions, by virtue of their unique status as the exclusive bargaining representatives of their members, have standing to sue on behalf of their members for losses arising out of the collective bargaining process.  See, e.g., UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 699-700 (1966).  Thus, the NLRA provides that “[a]ny . . .  labor organization may sue . . . as an entity and in behalf of the employees whom it represents in the courts of the United States.”  29 U.S.C. § 185(b).  The line of cases upon which Defendants rely in arguing that the Unions lack representational standing, including Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343-46 (1977), is inapposite because none of these cases addresses the unique considerations that attach when a labor union files suit as the exclusive bargaining representative of its members.

The Unions here are asserting statutory and constitutional claims for themselves and for their members.  First, the Unions seek to vindicate their rights and those of their members under the NLRA to engage in collective bargaining and to strike, unencumbered by governmental interference, and to be free from retaliation for exercising those rights.  See Machinists v. Wisconsin Employment Relations Comm’n, 427 U.S. 132, 140 (1976) (NLRA preempts governmental entities from regulating or otherwise controlling the “free play of economic forces” that Congress meant to leave unregulated when it enacted the NLRA); see also Golden State Transit v. City of Los Angeles, 493 U.S. 101, 110 (1989).  Such a claim is cognizable under § 1983.  See Golden State, 493 U.S. at 112-13; see also Alameda Newspapers, Inc., v. City of Oakland, 95 F.3d 1406,1411-1412 (9th Cir. 1996) (union has standing to appeal ruling in a Section 1983 action that city’s boycott was pre-empted)

In addition, the Unions seek to vindicate their First Amendment rights and those of their members to freedom of association and expression.  That the First Amendment’s protections extend to all associations, including labor unions, is beyond dispute.  E.g., Allee v. Medrano, 416 U.S. 802, 820 n.13 (1974) (recognizing that “protected First Amendment rights flow to unions as well as to their members and organizers” and that a union may raise any of the claims that a member of the union would have standing to raise).  See also  NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958); NAACP v. Button, 371 U.S. 415 (1963).  Thus, the Unions have standing to challenge Defendants’ ongoing retaliation against them and their members for associating with each other and for publicly criticizing the City’s actions.

IV.
SUMMARY JUDGMENT CANNOT BE GRANTED ON
THE LABOR LAW AND FIRST AMENDMENT CLAIMS
.

Even though discovery is far from over, and the principal architects of the City’s policy toward Legal Aid since October 1994 have yet to be deposed, Defendants argue that plaintiffs’ labor law and First Amendment claims can be decided now on the merits by summary judgment.  Not so.

  1. I.                   ­The City’s Motivation Is a Material Issue of Fact.

It is well-settled in this Circuit that “summary judgment is rarely appro­priate where the moving party’s state of mind is a material issue.”  EEOC v. Home Ins. Co., 672 F.2d 252, 257 (2d Cir. 1982).  “The need for a full exposition of facts is profound under such circumstances since determining a man’s state of mind is an awesome problem, capable of resolution only by reference to a panoply of subjective factors.”  Patrick v. LeFevre, 745 F.2d 153, 159 (2d Cir. 1984) (internal quotation marks omitted).  “Further­more, a sojourn into an adherent’s mind-set will inevitably trigger myriad factual inferences, as to which reasonable persons might differ in their resolution,” a function that “[t]raditionally . . . has been entrusted to the jury.”  Id.   Here motive is both material and very much in dispute with regard to both the NLRA and First Amendment claims.

The NLRA Claim.  Defendants say the City’s actions “were motivated by concerns” that were purely proprietary, and thus exempt from preemption under the Supreme Court’s decision in Building & Construction Trades Council v. Associated Builders & Contractors, 507 U.S. 218 (1993) (“Boston Harbor”).  (City Br. (LAS) at 24).  Legal Aid and the Unions, on the other hand, contend that the City has acted the way it has because the Mayor, conscious of the need to assert his own authority, believes that lawyers should not be permitted to strike; because the City was pursuing the “general societal goal[]” of discouraging lawyers from striking “rather than narrow proprietary interests,” Boston Harbor is inapplicable.  Cardinal Towing & Auto Repair, Inc. v. City of Bedford, 180 F.3d 686, 692 (5th Cir. 1999) (noting that “attempts by government entities to punish labor and benefits practices they disfavor by withholding contract work have been found preempted by the NLRA”).

As one court has explained:

[i]In Boston Harbor, the Court held that States and local governments, when they are directly participating in the marketplace, are not free to take any action that a private party could take in that role.  When either a State or a private party refuses to enter into a contract based on a “policy concern rather than a profit motive,” the Court explained, that actor “would be attempting to ‘regulate’ the suppliers and would not be acting as [a] typical proprietor.”  While private parties may take such actions, “States have a qualitatively different role to play from private parties.”  When States pursue policy objectives, even in the marketplace, they play a characteristically governmen­tal role and are more powerful than private parties . . . . Therefore, where federal law bars State regulation in a certain field, States may not pursue their policy goals in that field either through generally-applicable legislation or through proprietary actions.”

Air Transp. Ass’n v. City & County of San Francisco, 992 F. Supp. 1149, 1178 (N.D. Cal. 1998) (citations omitted).

The record is replete with indications that the Mayor’s motives had nothing to do with those pursued by ordinary proprietors dealing with a strike.  The City announced that:  (i) the Legal Aid Attorneys were not permitted to strike; (ii) the Society should consider firing them for having gone on strike; and (iii) when the Society refused to do so, the City would blacklist any employee who did not immediately abandon the strike.  Not content with simply breaking the 1994 strike, the Mayor and his subordinates made good on their promise to punish Legal Aid and the Unions for the strike by terminating the Society’s contract and thereafter gutting its funding, with the express purpose of chilling the future exercise of that right.  As Defendant Lapp explained, “Mayor Giuliani terminated the contract for a number of reasons, foremost being his belief that the strike by the Association of Legal Aid Society Attorneys constituted an unacceptable breach of the attorneys’ ethical obligation to their clients.”  (Coyne Decl. Exh. J).

Despite the City’s attempt to cast their actions in proprietary terms, there is, at the least, a genuine and material dispute of facts concerning the Mayor’s motivations, a dispute that is fundamental to the applicability of Boston Harbor.  The Mayor’s remarks at the time of the strike speak clearly of his belief that lawyers and others “delivering vital services to the city” should not be permitted to strike.  Those remarks speak unarguably in the language of regulatory policy, tracking, as they do, New York regulatory policy concerning public employees.  See N.Y. Civ. Serv. Law § 200(e).  If, as those remarks suggest, the Mayor’s actions were motivated partly by his desire to establish a policy for those who deliver “vital services to the city,” and to punish ALAA members for violating that policy, then Boston Harbor does not apply and his actions are preempted.

Moreover, if such a motivation contributed to his actions, it does not matter that there might have been good proprietary reasons for contracting with the alternate providers.  As a New York federal court noted recently:

In Boston Harbor, the Supreme Court held that state action is not violative of the NLRA “when the state acts as a market participant with no interest in setting policy.”  The emphasized language implies that motive or purpose for the governmental action may be a relevant factor in determining wheth­er the action is pre-empted by the NLRA, as when a state, while purporting to act as a market participant, assumes the role of regulator.

Van-Go Transport Co. v. New York City Bd. of Educ., 53 F. Supp. 2d 278, 290 (E.D.N.Y.  1999) (citation omitted) (quoting Boston Harbor, 507 U.S. at 229)).  There is a factual dispute that may not be resolved on this motion as to whether the City “while purporting to act as a market participant, assume[d] the role of regulator.”  Id.

Beyond the direct evidence of impermissible motives, the City’s purported proprietary reasons for embarking on the RFP process are post hoc rationalization that fall far short of justifying the conduct here.  For example, the City says that the RFP process was necessary to prevent strike-related interruptions in the delivery of indigent defense services.  But, as discussed above, Defendant Lapp virtually conceded that the termination of the Society contract and the decision to contract out some of its work was motivated primarily by the Mayor’s personal view, which he insisted become City policy, that the strikers should be punished by what he declared was unlawful behavior.

Moreover, the timing of the RFPs, the other retaliatory punishments, and the lack of nexus between the RFPs and the asserted rationale all raise factual issues as to pretext.  Defendants were well aware of the prior strikes when they increased reliance upon the Society in the summer of 1994.  Notwithstanding prior strikes by the Society’s lawyers, including one in 1982 that the City says massive­ly disrupted the criminal justice system, the City determined in June 1994 that “Legal Aid offered the best representation for the cheapest price,” and urged Legal Aid to take more cases in Manhattan than it had been taking.  (LAS Compl. ¶ 36 & Exh. B).  The City’s change in tune, so soon after the events of October 1994, is evidence from which a reasonable jury could conclude that the rationale was a mere pretext.

The claimed motivation is also belied by the evidence that there were no material disruptions in service during the short-lived strike.  The Society fulfilled all of its contractual obligations, and did not turn away any cases until the City itself ordered the Society to not appear at arraignments on Monday evening, Oct. 3.  (1/22/97 Baum Aff. ¶¶ 3-5).  Likewise, the claimed motivation is undercut by the fact that, long before issuing RFPs, the City withheld­ and then reduced the Society’s funding, thereby forcing layoffs of the Society’s supervisory personnel, which had been historically the most effective means of ensuring continuity of service during any strike.  Defendants do not dispute that the virtual elimination of Legal Aid’s ranks of supervisors — who in the past were available to cover for striking staff attorneys — and the creation of small alternate providers with set case loads have left the City even more vulnerable to work stoppages.

The First Amendment Claim.  For similar reasons, Plaintiff’s First Amendment claims cannot be dismissed on this record.  Defendants contend the City acted for legitimate reasons; the Society and the Unions contend that the City was in fact retaliating against them for, among other things, criticizing the Mayor and others in the Administration and for associating with critics of the Mayor.  This dispute as to whether or not impermissible retaliatory motives influenced the City’s actions can be resolved only by the jury.  As held by the Second Circuit,

[w]hether the impermissible reason had a causative effect on the adverse state action in a dual-motivation case is decided by asking the trier-of-fact first to determine whether the impermissible reason was at least part of the defendant’s basis for its action, and, if so, then to answer the hypothetical question, “Would the defendant have taken the same adverse action even if the impermissible reason had not existed.”

Greenwich Citizens Comm. v. Counties of Warren & Washington Indus. Dev. Agency, 77 F.3d 26, 32 (2d Cir. 1996).  Those issues cannot be resolved on these motions.

Furthermore, the willingness of this Mayor to engage in the kind of retaliatory actions alleged by Plaintiffs is, by now, a well-documented and dismal phenomenon.  Last week’s decision in the Brooklyn Museum case is but the latest example.  See Brooklyn Inst. of Arts & Sciences v. City of New York, — F. Supp. 2d —-, 1999 WL 989081 (E.D.N.Y. Nov. 1, 1999).  Ther­e, as here, City policy — the withholding of already appropriated funds, the threat to terminate all future funding, and the commencement of an  action to evict the Brooklyn Museum from its City-owned building — was driven by the Mayor’s personal affront at protected activities.  Id. at **6, 15.  There, as here, the City sought to cloak the Mayor’s unlawful motive in assertions that were plainly pretextual.  Id. at ** 7-8, 11 & n.2.  The court was not fooled.  Id. at *12 (“The undisputed record demonstrates that the Mayor and other senior City officials were offended by the content of the Exhibit, as they stated from the beginning, and then sought to find a basis in the pertinent legal instruments which could plausibly justify their determination to compel the Museum to remove certain offending works from the Exhibit, or cancel the Exhibit, or, failing that, to deprive the Museum of funding and seek replacement of its Board.”).

  1. J.                  ­The City Cannot Invoke the “Proprietary” Exception to Preemption.

Aside from the dispute in motivation — which alone forecloses summary judgment on this record — it is by no means clear that the Boston Harbor “proprietary” exception even applies here.  In Boston Harbor, the Supreme Court held that a municipality was not preempted from using the pre-hire type of construction contract expressly permitted by the NLRA for private sector construction industry employers.  See Boston Harbor, 507 U.S. at 231 (“There is no reason to expect these defining features of the construction industry to depend upon the public or private nature of the entity purchasing contracting services”); see also 29 U.S.C. § 158 (f).  The Court reasoned that where a municipality is acting “just like a private contractor would act, and conditions its purchasing upon the very sort of labor agreement that Congress explicitly authorized and expected frequently to find,” the very aim of preemption — to maintain uniformity in the scheme of regulation intended by the NLRA — could not possibly be threatened.  Boston Harbor, 507 U.S. at 232-33.

Contrary to Defendants’ assumption,  a finding that the City was using its purchasing power would begin, not end the factual inquiry.  No bright line exists between purely proprietary conduct outside the reach of preemption and purchasing activity that is tantamount to preempted regulation.  “Rather, the court must scrutinize the totality of the circumstances and decide whether, as a practical matter, the governmental entity is ‘functioning as’ a regulator or a proprietor.”  Hotel Employees & Restaurant Employees Union v. Marriott Corp., No. C-89-2707 MHP, 1993 WL 341286, at *8, (N.D. Cal. Aug. 23, 1993).  Pertinent considerations include whether there is a private sector analog to the state activity, whether the activity would have been permissible even if undertaken by a private entity, and whether, in any event, the activity so encumbers protected NLRA conduct as to warrant preemption regardless of whether permissible by a private actor.  As to each of these factors Plaintiffs have raised genuine issues of fact that preclude summary judgment.

As a threshold matter, the parties disagree as to whether there is even a private sector proprietary analog to the City’s contracting with the Society.  As the Supreme Court noted in Boston Harbor, a public entity “perform[ing] a role that is characteristically a governmental rather than a private role,” is not “just like a private” actor.  507 U.S. at 229.  Provision of legal services to indigent criminal defendants is, under Gideon v. Wainwright, 372 U.S. 335 (1963), a governmental function that under New York law can be performed only by the appropriate political subdivision — here, New York City.  See N.Y. County Law § 722.   Indeed, even Defendant Lapp has conceded that contracts “for defense services for the indigent address[] the provision of constitutionally mandated services, plac[ing them] in a category different from other service contracts.”  (LAS Compl. ¶ 77 & Exh. Q at 1).

Furthermore, as the only “purchaser” of legal services for the indigent in New York City, the City is a monop­sonist.  Far from being one market participant, ­as was the case in Boston Harbor, the City here is the market.  As such, it holds virtual life or death power over the Society by virtue of its power to contract with or refuse to contract with the Society.  Because “the City, drawing on its powers to tax and spend,” can act in this area “in a manner that a typical consumer cannot,” its conduct is “both coercive  and governmental in nature.”  Alameda Newspapers, Inc. at 95 F.3d 1417.

Also in dispute is whether the NLRA would have permitted private employers to do what the City did here, and, if so, whether the conduct was so coercive of protected conduct that it was nonetheless preempted.  Unlike in Boston Harbor, there is no explicit sanction for what the City did here.  This is not a case of entering into an authorized pre-hire contract under 29 U.S.C. § 158(f); rather this case raises the intensely factual issues of whether the conduct constituted unlawful interference and coercion.  The NLRA prohibits private employers from “direct[ing], instruct[ing], or order[ing] another employer with whom it has business dealings to discharge, lay off, transfer or otherwise affect[] the working conditions of the latter’s employees because of the union activities of said employees.”  Dews Constr., 231 NLRB 182, 182 n.4 (1977), enf’d, 578 F.2d 1374 (3d Cir. 1978).  Plaintiffs have plainly asserted factual issues concerning whether the City did precisely that by, among other things, suggesting that the Society fire the striking employees and, through budget reductions and the RFPs, causing the Society to reduce its staff, increase their caseloads and otherwise adversely affect their working conditions.

Similarly, Plaintiffs have raised issues concerning the substantial coercive impact of Defendants’ conduct.  Because of the power of government, the NLRA “demands a more scrupulous evenhandedne­ss from the States” than it does from private actors.  Lividas v. Bradshaw, 512 U.S. 107, 118 n.12 (1994).  Consistent with the rationale underlying the preemption principles, the ultimate issue is whether the governmental conduct unduly intrudes upon rights protected by the NLRA.  On this record, the evidence of the coercive impact on NLRA rights at a minimum creates a genuine issue of material fact.

  1. K.                ­The Local Feelings Exception Does Not Apply, Either.

Finally, although the NLRA does not preempt “general state laws that protect state interests ‘deeply rooted in local feeling and responsibility,’” such as traditional tort claims, New York Tel. Co. v. New York Labor Dep’t, 440 U.S. 519, 548 (1979) (Black­mun, J., concurring, joined by Marshall, J). (quoting San Diego Bldg. Traders Council v. Garmon, 359 U.S. 236, 244 (1959)), this exception to NLRA preemp­tion has no place in a case like this one, in which a municipal government has attempt­ed to “prohibit private conduct in the labor-management field.”  Id. at 532 (plurality opinion).  Beyond that, the “local feeling[s] and responsibilit[ies]” the City claims to be serving — preventing “chaos” in the criminal justice system and saving money (City Br. (LAS) at 28) — are very much in dispute here.  If, in fact, the City’s actions were for a retaliatory motive, then no legitimate “local feelings and responsibilities” have been served.  The presence or absence of a retaliatory motive may not be resolved on these motions.

V.
DEFENDANTS MAY NOT NOW ARGUE THAT
LEGAL AID FAILED TO EXHAUST ADMINISTRATIVE
REMEDIES REGARDING THE FIRST TWO RFPs
.

The City and AA have waived the exhaustion of administrative remedies defense, since it was “available” to them years ago.  Fed. R. Civ. P. 12(g), (h).  With respect to the First RFP, the City and AA did not assert a failure-to-exhaust defense in their answers in state court, and never raised the defense in the proceedings before Justice Saxe and the First Department.  With respect to the Second RFP, the City did not raise the failure-to-exhaust defense when it moved to dismiss Legal Aid’s federal suit in November 1996.  And the City did not assert this defense when it finally filed an answer in those proceedings, in November 1998.

It does not matter that the City and AA belatedly asserted a failure-to-exhaust defense in their Answers to the Second Amended Complaint.  The “‘[f]ili­ng of an amended complaint [does] not revive the right to present by motion defenses that were available but were not asserted in timely fashion prior to amendment.’”  Dee-K Enterprises, Inc. v. Heveafil Sdn. Bhd. 985 F. Supp. 640, 643 n. 2 (E.D. Va. 1997) (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1388, at 738 (2d ed. 1990)); see id. at 642-43.

Moreover, as the very authority cited by Defendants holds (City (LAS) Br. at 19), “[t]he exhaustion rule . . . is not an inflexible one . . . . It need not be followed . . . when an agency’s action is challenged as either unconstitutional or wholly beyond its grant of power, or when resort to an administrative remedy would be futile.”  Watergate II Apartments v. Buffalo Sewer Auth., 46 N.Y.2d 52, 57, 412 N.Y.S.2d 821 (1978) (citations omitted).  Here, the Society has challenged the City’s conduct as “beyond its grant of power” in that it violates state law, the City Charter, and the PPB Rules.  And given the cursory reception that CJC accorded Legal Aid’s requests for an explanation of why Legal Aid’s proposals were rejected under the Third RFP (9/29/99 Becker Aff. Exhs. K and M), similar administrative challenges to the First and Second RFPs would have been futile.


VI.
DEFENDANTS’ “UNTIMELY JOINDER” AND
“MISSING PAGE” ARGUMENTS ARE DEVOID OF MERIT
.

The City’s and CAL’s argument that Legal Aid’s request for injunctive relief against the Second RFP on state law grounds must be dismissed for failure to timely join indispensable parties borders on the frivolous

Failure to join a necessary party requires dismissal of an action — as opposed to a claim for relief — only when an  indispensable party “cannot” be joined in the action because doing so would “deprive the court of jurisdiction over the subject matter of the action, the absent party is not “subject to service of process,” or, once joined, the “joined party objects to venue and joinder of that party would render the venue of the action improper.”  Fed. R. Civ. P. 19.  None of those concerns applies here.  CAL is subject to service of process; its joinder has not deprived this Court of subject matter jurisdiction; and CAL has not objected to venue.

Moreover, the “untimely joinder” argument assumes erroneously that this Court has no subject matter jurisdiction over a time-barred claim.  Not so.  The statute of limitations is an affirmative defense.  See Fed. R. Civ. P. 8(c); N.Y. CPLR § 3211(a) (5).  Unlike statutes of repose, statutes of limitations can be waived.  See Guggenheim Found. v. Lubell, 77 N.Y.2d 311, 314, 316, 567 N.Y.S.2d 623, 624, 625 (1991); Hirsch v. Weisman, 189 A.D.2d 643, 644, 592 N.Y.S.2d 337, 338 (1st Dep’t), leave to appeal dism’d, 81 N.Y.2d 1067, 601 N.Y.S.2d 584 (1993).

Beyond that, the four-month statute of limitations that applies to Legal Aid’s County Law § 722 and wrongful exclusion claims began running on the day the Second RFP was announced.  See Legal Aid Soc’y, 242 A.D.2d at 426-27, 662 N.Y.S.2d at 306.  That was some seven months before contracts were awarded, meaning that the statute of limitations had expired three months before Legal Aid knew which alternate providers were awarded contracts under the Second RFP.  Thus, under the City’s and CAL’s reasoning, the City could foreclose state law challenges to contract awards by waiting more than four months after rejecting a bidder before announcing the awards.

In addition, if CAL was so concerned about protecting its rights, it could have moved to intervene.  See Fed. R. Civ. P. 24.  It was no secret that Legal Aid and the Unions were challenging the Second RFP.  See, e.g., Legal Aid Soc’y v. City of New York, No. 96 Civ. 5141 (SHS), 1997 WL 394609 (S.D.N.Y. Jul. 11, 1997); ALAA v. City of New York, No. 96 Civ. 8137 (SHS), 1997 WL 620831 (S.D.N.Y. Oct. 8, 1997).  If he did not know of them before,  Robert Dean, who heads CAL, could have heard about the suits from his wife, Lynn Fahey, who heads AA.

AA’s and CAL’s eleven-page argument that a single page missing from Legal Aid’s proposals in response to the Third RFP — a page that was not even included in Legal Aid’s copy of the Third RFP guidelines — was material “variance” from the Third RFP’s requirements (AA Br. at 19-30) is even less deserving of this Court’s attention.  It is the City, not AA or CAL, whose views in this regard matter, and the City has never taken this position.  See In re C.K. Rehner, Inc., 106 A.D.2d 268, 269-70, 483 N.Y.S.2d 1, 2 (1st Dep’t 1984).

AA’s and CAL’s suggestion that Legal Aid intended to perfect only 67 appeals per year per contract under the Third RFP (AA Br. at 26) is beneath contempt.  Legal Aid said it would perfect, not just accept, 100 appeals per year under each contract.  (8/2/99 Wycoff Supp. Aff. ¶ 26).  That meant if Legal Aid was conflicted out of a case, it would take another one in its place.  (Id.).  And, unlike AA and CAL, who might in this respect have been engaged in a material variance from the RFP, Legal Aid did not ask to be paid $1,000 for each case it had to decline because of a conflict.  (Id.).

CONCLUSION

For three years, now, the City and the alternate providers have done all they can to stave off addressing the merits of this litigation.  These ill-conceived motions are the latest step in that effort.  They should be denied.

Respectfully submitted,

__________________________________

Alan Levine

207 West 106th St., Suite 11C

New York, New York 10025

(212) 665-6711

Nancy Chang

Center for Constitutional Rights

666 Broadway, 7th Floor

New York, New York 10012

(212) 614-6420

Counsel to Plaintiff Association of

Legal Aid Attorneys

__________________________________

D. Stuart Meiklejohn

Mark E. Coyne

125 Broad Street

New York, New York 10004

(212) 558-3665/4613

Counsel to Plaintiff The Legal Aid Society

 

__________________________________

Daniel Engelstein

Levy, Ratner & Behroozi, P.C.

80 Eighth Avenue

New York, New York 10011

(212) 627-8100

Counsel to Plaintiff 1199

November 8, 1999


[1] /         Citations in the form “_____ Br.” are to the memoranda of law of the City, Appellate Advocates, Brooklyn Defender Services and Queens Law Associates, P.C. (collectively, “AA”) and the Center for Appellate Litigation, New York County Defender Services, Inc., Bronx Defenders and Battiste, Aronowsky & Suchow, Inc. (collectively, “CAL”) in support of their respective motions for judgment on the pleadings or summary judgment.  Citations in the form “_____ Aff.” and “_____ Decl.” are to the affidavits, affirmations and declarations of the persons named.  Citations in the form “_____ Statement” are to the Local Rule 56.1 statements submitted in support of or in opposition to the pending motions.   Citations in the form “LAS Compl.” and “Union Compl.” are to the Society’s Verified Second Amended Complaint and the Unions’ Complaint, respectively.

[2] /         Although the City points to trials purportedly postponed in Queens as a result of the strike (City Br. (LAS) at 4), Legal Aid knows of no instance in Queens — or anywhere else in the City — where a trial was postponed because of the unavailability of a Legal Aid lawyer.  (1/22/97 James Aff. ¶ 4; 1/22/97 Baum Aff. ¶ 6).

[3] /         This rule applies even though Defendants now rely on cases they did not cite to the First Department, and devote more pages of briefing to the waiver and estoppel arguments than they did when before that court.  “[L]aw of the case will be followed absent cogent or compelling reasons,” and “[i]t is not enough for the party seeking consideration to make a more persuasive argument.”  Yonkers Bd. of Educ. 856 F.2d at 11.

[4]/ The remarks attributed by Defendants (wrongly) to Thomas Brome (e.g., City Br. (LAS) at 5-6, AA Statement ¶ 18), who then was the President of the Society, reflect nothing more than an acknowl­edg­ment by Legal Aid that the City had always had the right to make alternate arrangements for the provision of indigent defense services.  Daniel Greenberg — the actual speaker — said nothing that would have waived Legal Aid’s claims that the City was not complying with the law in making such arrangements.  (10/25/99 Greenberg Aff. ¶ 2-3).

[4]/ Defendants’ pleas of partial performance of the RFP contracts (City Br. (LAS) at 19 n.5) is similarly unavailing.  The City has assured the Court that it “has the inherent authority to nullify the contracts with” AA and CAL, and that, if this happens, the City will recover any moneys paid to AA and CAL under the contracts, less, presumably, a quantum meruit set-off.  (7/26/99 City Br. Opp. Mot. Prelim. Inj. at 12).  Moreover, the Society’s statement that it was too late in December 1996 to enjoin the First RFP (City Br. (LAS) at 19 n.5) was simply an acknowledgment that contracts under that RFP had already been awarded and that, while performance of those contracts could be enjoined, the RFP itself was now moot.

[4]/ Under the City Charter, the Criminal Justice Coordinator is part of “the executive office of the Mayor,” and is responsible for, among other things, “review[ing] the budget requests of all agencies for programs related to criminal justice and recommend[ing] to the mayor budget priorities among such programs.”  N.Y. City Charter § 13.

[4]/ Defendants’ position here conflicts with not only Defendants’ position on the County Law issue — where they have said the Mayor is the City, in effect — but also the position recently taken by the City in the Brooklyn Museum litigation.  There, the City argued that:

it is the power and duty of the Mayor and his appointees to ensure that the designated recipients of appropriated funds are using public resources for authorized and legitimate purposes; indeed, a failure to so ensure would shirk that duty.  This authority is not implied, but is rather explicit in the Charter.  Section 3 [of  the Charter] provides for the Mayor to be the City’s chief executive officer.  Powers of budget administration are vested broadly in the executive branch.  Charter § 106.  Section 8(a) provides for the Mayor to be “responsible for the effectiveness and integrity of city government operations” (which obviously include grant, contract and lease administra­tion) and to “establish and maintain such policies and procedures as are necessary and appropriate to accomplish this responsibility . . .”  Mayoral agencies are charged with the management of agency programs and expend­itures, and with reducing vulnerability to fraud, waste and abuse consistent with mayoral policies.  Charter §§ 387, 388, 389.  Further, the Council and Mayor alike are deemed “trustees of the property, funds and effects of the City” under Charter § 1110, and as such have the duty to ensure that funds appropriated by the City are properly administered.

(Coyne Decl. Exh. BB, at 39-40).

[4]/ Defendants’ reliance on Lechmere, Inc. v. NLRB, 502 U.S. 527, 532 (1992), is misplaced.  (City Br. (Union) at 7).  Lechmere merely stands for the proposition that an employer does not commit an unfair labor practice by barring union organizers from its property when its employees are otherwise accessible to those organizers.  Lechmere has no bearing on whether, under the Machinist preemption doctrine, the Unions have standing to sue the City for interfering with the rights of the Unions and their members to engage in collective bargaining and to strike.

[4]/ Of course, summary judgment may be granted when an allegation of unlawful motive is merely conclusory and lacking in evidentiary support.  As explained in this section, the evidence of Defendants’ unlawful motive, even without further discovery, is substantial.

[4]/ The Mayor stated that “in public service . . . you give away . . . the right to strike against the public,” Channel 11 news broadcast, October 3, 1994, and “don’t go on strike when you’re involved in delivering vital services to the city.”  Channel 11 Interview, October 6, 1994.

[4]/ Corporation Counsel Paul Crotty suggested that Legal Aid “could always fire those lawyers for going out on strike.  That’s an option they ought to consider.”  (Coyne Decl. Exh. B).

[4]/ The City announced in a press release that “[a]s a condition of any subsequent discussions with the Legal Aid Society, the Society must agree that any lawyer who does not return to work by tomorrow morning, Wednesday, October 5, 1994, will be excluded from any further representation paid for by the City of New York.”  (1/9/97 Letwin Dec. Exh. E) (emphasis added).  In a televised press conference, the Mayor also threatened that “if they don’t go back to work tomorrow, then any future negotiations as to how we reconstitute a new contract with whatever group, they would not be included in it.“  New York 1 TV Broadcast, October 4, 1994.

[4]/ The Mayor was quoted as saying “[h]opefully this will be the last time lawyers strike against the public interest.  As a lawyer, I’m absolutely offended that lawyers would strike.”  (Coyne Decl. Exh. S).

[4]/ Where performance was prevented or inhibited by the City, any claims of non- performance would not justify termination of the Society’s contract.  See, e.g., Van-Go, 58 F. Supp. 2d at 298.

[4]/ The City also says the RFP process was necessary to foster competition, reduce expenses, and test new ways of providing indigent criminal representation.  This, too, is hotly contested (LAS Compl. ¶ 70), and will require further discovery.

[4]/ Likewise, in Time Warner Cable v. City of New York, 943 F. Supp. 1357 (S.D.N.Y. 1996), after a cable company — Time Warner — rejected a proposal from the Mayor, the City embarked upon a campaign of retaliation, which it later vigorously denied.  This Court found otherwise, condemning the “irregularity of the City’s actions in this case,” which were “far beyond acceptable.”  Id. at 1364.  The Court found that “the City acted on its threat” to take punitive action and “acted both to coerce Time Warner and to retaliate against it” for failing to accede to the City’s position.  Id. at 1384.  Referring to the City’s “continuing effort, through means fair and foul” to achieve its unconstitutional goals, id. at 1398, the Court found that the City’s actions in the cable dispute were motivated by the desire to “reward a friend” and to “punish” an adversary.  Id. at 1400.  The City’s alleged justifications for its actions were merely “pretexts­.” Id. at 1401.

[4]/ Defendants’ analogy to the compliance with the Clean Water Act present in Boston Harbor (City. Br. (LAS) at 26) fails.  Although the obligation to provide counsel to indigents accused of a crime is a peculiarly governmental role, the Clean Water Act applies to private as well as public entities.

[4]/ The City’s argument that the Unions’ claims for injunctive relief against performance of the contracts awarded under the RFPs should also be dismissed for failure to join indispensable parties can be readily mooted.  The limitations period has not run on the Unions’ § 1983 claims for injunctive relief, and the Alternate Providers are already parties to Legal Aid’s action seeking the same relief.  Consequently, the Unions can amend their Complaint to add the Alternate Providers as parties.  See Fed. R. Civ. P. 15.

November 5, 1999

1999.11.05: After the Elections

Download in PDF format: 1999.11.05- After the Elections

M E M O

To:    ALAA Members

Fr:    Michael Letwin, President
George Albro, Secretary-Treasurer
Charlotte Hitchcock, Recording Secretary

Re:    After the Elections

Da:    November 5, 1999

We wish to thank everyone who ran for union office in last week’s elections, and all members who came out to vote for the candidates of their choice.

Like other aspects of ALAA’s participatory democracy, the election process that has just ended contrasts sharply with too many unions in which elections are routinely poisoned by unfair rules, personal attacks, intimidation, low membership turnout, and/or stuffed ballot boxes.  

In ALAA, each candidate has had full opportunity to address the membership.  With few exceptions, our contested presidential race has generated constructive, issue-oriented discussion, in which members and candidates alike were free to speak their mind.  Balloting in the offices, held for the first time pursuant to new ALAA’s new bylaws, has achieved its intended effect by boosting voter participation to an unprecedented 70%—a figure matched by few elections of any kind, anywhere.  Our scrupulously-fair Election Committee has rendered outstanding service.

We now ask you to help maintain this high level of membership participation.  One such opportunity is the impending election of delegates, whose much larger number is designed to make the Delegate Council (formerly Executive Committee) more representative of the members.  The new Council, in turn, will elect seven issue/constituency Executive Board members (Affirmative Action, Attorneys of Color (ACLA), Gay & Lesbian, Health Benefits, Health & Safety, Junior Attorneys and Senior Attorneys).  (Details about these elections will be forthcoming).

More than ever, these scores of additional representatives can help ensure that all voices are heard.  Whether you are a veteran or new member, please consider running for one of these positions, for which comprehensive training will be provided.

We also reiterate an invitation to participate in the campaigns to restore and/or increase funding for all of our divisions, in the work of the Joint ALAA Affirmative Action Committee, in decision-making at all Legal Aid offices and divisions, in negotiating the Y2000 collective bargaining agreement, in the Attorneys of Color of Legal Aid (ACLA), in political action, and in numerous other activities.

To facilitate greater direct communication with the membership, we hope to visit offices more frequently.  As always, please contact us with your questions, comments and concerns.

In these ways, we can all help strengthen ALAA and the mission of The Legal Aid Society in the crucial period ahead.

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