2000.09.20 – Court approves Legal Aid Society Free Speech Suit – NYLJ – ALAA — OCR
Court Approves
Legal ./lid Society ·
Free Speech Suit
BY DANIEL WISE
A BITTER LEGAL dispute between.
the Legal .!Xid Society and Mayor Giu-·
liani triggered. by a four-day strike in
1994 should live to see another day in
a truncated form, a Southern. District
judge ruled yesterday.
Judge Sidney H. Stein, ruling on the
City’s motion to dismiss lawsuits. filed
by Legal Aid and·its 80(}.1aw)rer union,
kept alive clahns that the Mayor had
retaliated against protected First
Amendment
activity. But ‘
the judge, in
Legal’ Aid
Society v. Giuliani;
9&5141} ;Sfiarpl¥ cut badt.cl~ims
thattheMayor’s·WQj:cjs·anaactionsviolated
the National·Labor Relations Ad.
The dispute·erupted.when•Legal Aid
lawyers went out on strike in. October
1994. The Mayor immediateiy terminated
the Legal Aid Society’s contract
as the exclusive provider of representation
to indigents accused of crimes in
New York City.
Legal Aid Society Claims .Survive
Continued from page 1, column 3
Four days later the strike was over,
after Mayor Giuliani had given the striking
lawyers an ultimatum: return to
work .within 24 hours or face a permanent
bar on work funded by the City of
New York.
The Mayor also insisted that any
future contract contain a “no-strike”
provision, and that the Society relinquish
its contractual status as. the sole
provider of indigent legal representation
in criminal cases.
In .the wake of the strike, the City
negotiated $20 million in contracts with
seven new legal aid organizations; and
cut the Legal Aid Society’s funding by
that amount to $59 million.
In the lawsuits, which were- filed in
1996, both the union and Legal Aid cdntende<;
Itnat thene:wcontracts and cut~
ba:cks•were:the.resultof retaliatioq;fon:
their (lSS.ertiqn of rights. protected by
theNatibnahLabor. Relations -Act and
the FirstlXinendment; .
The•.co~traef wasi ultimately reinstated
in. F:ebrJ:Iary 1995, but only after.
Legal Aid had negotiated a “modification,”
inwhich it agreed that City could
contract with others “in whole or in
parf’ to provide the work it had previ~
ouslyprovided exclusively under the
contract it had with the City going back
to 1966. –
Key Concession
Judge Stein looked to that concession
in concluding that Legal Aid had
waived its rights to challenge the
Mayor’s actions as· impermissibly
intruding.upQn the collective bargaining
process protected by the National
Labor Relations Act.
While that language contained no
specific waiver of the right to sue, Judge
Stein concluded that under applicable
precedents from the U.S. Court of
Appeals for the Second Circuit, it was
sufficient that a waiver could be
implied. An analysis ofthe modification
signed by Legal Aid, he wrote, made it
clear that the provision allowing the
City to contract out work was “a safeguard
intended to minimizethe possible
disruption from future strikes.”
While barring Legal Aid from pursuing
its labor act claims, Judge Stein, did
rule that discovery could proceed· on
the uilion’s claims that City had intruded
into · the collective bargaining
process by insisting on a contract that
barred any wage increase, even one
that was self-funded without the use of
City money.
But Judge Stein also rejected any
labor Jaw claim. stemming from the
City’s decision to insist upon having
the right· to contract with new
providers and to cut Legal Aid’s budget,
“Common sense alone suggests,” he
; wrote, that the City in COiltr~ct.ng for
legal:services shouldbe.p.ermitted to
seek out “new;o~~~ernative1~providers
to a~oid “potentially disruptive labor
disputes,” . ,.·.··. t .: ……….. ·· •..
Judge Stein cu:lqeq.thathe was· letting
Ui~;Fi17st~ Amendirient. claims’ proceed
because tne U.S. Supreme Court has
held a higher standard ..:.:. “clear and
compelling”‘ evidence , to .apply in
assessing. whether a.waiver had taken
place ..
Since the Supreme Court did not
clearly enunciate the circumstances in
which.a government contractor could
pursue a claim for First Amendment
retaliation until after. the February 1995
modification,.he wrote, Legal Aid could
not have “knowingly” and “intelligently”
waived its First Amendment claims.
The City’-was represented by Assis.
tant Corporation Counsel tewis Finkelman.
Legal Aid was represented by D. Stuart
Meiklejohn, of Sullivan & Cromwell.
The Association of Legal Aid Attorneys
was represented by Alan Levine. Daniel
Engelstein, of Levy, Ratner & Behroozi
represented Local 1199; the union for
Legal Aid’s non~legal staff.
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