Civil Rights Corps. v. Cushman

Background

Civil Rights Corps. and six law professors sued Georgia Pestana, Melinda Katz, Andrea Bonina, Justice Hector D. LaSalle, Diana Maxfield Kearse, and the Corporation Counsel of the City of New York. The plaintiffs proceeded under 42 U.S.C. § 1983, a law allowing claims against government officials for violating federal rights.

The law professors filed 21 grievance complaints against current and former assistant district attorneys working in the Queens County District Attorney’s Office. The complaints alleged prosecutorial misconduct and asked the relevant grievance committees to investigate publicly and discipline attorneys if appropriate. The plaintiffs then published the complaints on AccountabilityNY.org.

James Johnson, then the City’s Corporation Counsel, sent letters to the grievance committees stating that the plaintiffs’ publication of the complaints appeared to violate New York Judiciary Law § 90(10), which provides that papers and records relating to attorney-discipline matters are sealed and confidential. Kearse later informed the law professors that any investigation would be initiated by the Grievance Committee and remain confidential. The plaintiffs viewed these actions as retaliation and as removing them from the role of complainants.

Rulings on Jurisdiction and Summary Judgment

The court rejected arguments that the case was not ripe, that the plaintiffs lacked standing, and that the City Defendants were improper parties. It found that the plaintiffs alleged an actual injury based on the letters, the alleged threats, and the removal of their complainant status.

The court considered the plaintiffs’ motion for partial summary judgment on their claim that § 90(10) violated the First Amendment and Article I, Section 8 of the New York Constitution. Summary judgment is a ruling entered when there is no genuine dispute over important facts and one side is entitled to judgment under the law.

The court held that § 90(10) was unconstitutional as applied to the plaintiffs’ circumstances. First, the court concluded that the First Amendment prevented the government from using § 90(10) to stop complainants from publishing their own attorney-grievance complaints. The court noted that the defendants’ written arguments appeared to concede that the statute did not prohibit complainants from publishing their own complaints, yet Johnson had invoked the statute in response to the plaintiffs’ publication.

Second, the court held that the statute was unconstitutional as applied when government officials used it to prevent the plaintiffs from publishing correspondence related to their grievance complaints. Because this was a content-based speech restriction, the defendants had to show that the restriction was narrowly tailored to serve a compelling government interest. The court found that they had not made that showing and that less restrictive alternatives existed.

The court therefore granted in part and denied in part the plaintiffs’ motion for partial summary judgment. It granted the motion as to the as-applied constitutional challenge and denied it as to the facial challenge. A facial challenge asks whether a law is unconstitutional in general; an as-applied challenge asks whether the law was unconstitutional in the particular circumstances before the court. The court declined to decide the facial challenge.

Motions to Dismiss

The City Defendants moved to dismiss the First Amendment retaliation claim for failure to state a claim, arguing that the plaintiffs’ publication was not protected speech and that the alleged government actions were not sufficiently adverse. The court rejected those arguments. It held that the plaintiffs adequately alleged protected speech, adverse actions—including threatening letters and removal of complainant status—and a causal connection between the speech and the alleged retaliation. The City Defendants’ motion to dismiss on this ground was denied.

Kearse separately moved to dismiss for failure to state a claim, arguing that her letters did not threaten, harass, or punish the plaintiffs. The court held that this argument depended on factual disputes that could not be resolved on a motion to dismiss, and denied Kearse’s motion on that ground.

The City Defendants and Kearse also argued that qualified immunity protected them from the First Amendment retaliation claim. Qualified immunity can protect government officials from liability when the law was not clearly established at the time of the challenged conduct. The court concluded that existing Second Circuit precedent had clearly established that the government could not punish people for publishing their own attorney-grievance complaints. The court therefore denied the qualified-immunity arguments.

Order

The court denied the City Defendants’ motion to dismiss and denied Kearse’s motion to dismiss. It granted in part the plaintiffs’ motion for partial summary judgment, granting it insofar as it sought judgment on the as-applied constitutional challenge. The defendants were ordered to answer the remaining claims within 21 days of the order.