Civil Rights Corps. v. Cushman

DOCUMENT

ELECTRONICALLY FILED

UNITED STATES DISTRICT COURT DOC #:

SOUTHERN DISTRICT OF NEW YORK DATE FILED: 5/5/2022

------- A XxX

CIVIL RIGHTS CORPS, ET AL., :

Plaintiffs, :

: 21 Civ. 9128 (VM)

- against - :

: DECISION & ORDER

GEORGIA PESTANA, ET AL., :

Defendants. :

------- A XxX

VICTOR MARRERO, United States District Judge.

On November 4, 2021, Plaintiffs Cynthia Godsoe, Nicole

Smith Futrell, Daniel Medwed, Justin Murray, Abbe Smith, and

Steven Zeidman, (together the “Law Professors”), and Civil

Rights Corps (“CRC,” and with the Law Professors,

“Plaintiffs”) filed suit against Georgia Pestana (“Pestana”),

Corporation Counsel of the City of New York; Melinda Katz

(“Katz”), Queens County District Attorney; Andrea Bonina

(“Bonina”), Chair of the State of New York Grievance Committee

for the Second, Eleventh, and Thirteenth Judicial Districts

(the “Grievance Committee”); Justice Hector D. LaSalle

(“LaSalle”), Presiding Justice of the Second Judicial

Department of the Appellate Division of the Supreme Court of

New York; and Diana Maxfield Kearse (“Kearse”), Chief Counsel

of the Grievance Committee (together, “Defendants”). (See

“Complaint,” Dkt. No. 59). Now before the Court are three

letters explaining Defendants’ intent to file a motion to

dismiss the Complaint. The first was filed by Pestana and

Katz (the “City Defendants”). (See “City Defendants Motion,”

Dkt. No. 36.) The second letter motion was filed by Bonina

and LaSalle (the “State Defendants”). (See “State Defendants

Motion,” Dkt. No. 41.) The third letter motion seeking

dismissal was filed by Kearse. (See “Kearse Motion,” Dkt. No.

47.) Also before the Court are Plaintiffs’ three letters in

opposition to the letter motions. (See “Opposition to City

Defendants,” Dkt. No. 39; “Opposition to State Defendants,”

Dkt. No. 44; and “Opposition to Kearse,” Dkt. No. 55.)

The Court now construes these letters as motions to

dismiss the Complaint. See Kapitalforeningen Lægernes Invest

v. United Techs. Corp., 779 F. App’x 69, 70 (2d Cir. 2019)

(Mem.) (affirming district court ruling deeming exchange of

letters as motion to dismiss). For the reasons stated below,

the letter motions are DENIED IN PART. The Court reserves

judgment on certain arguments pending the outcome of

Plaintiffs’ motion for partial summary judgment, which is

currently pending before the Court.

I. BACKGROUND1

The Court assumes familiarity with the factual

background as recited in the Court’s prior order directing

1 All factual and procedural background is drawn from the Complaint.

Except where directly quoted, no citations will be made to the relevant

docket entries.

the unsealing of the exhibits to the Complaint. (See

“Unsealing Order,” Dkt. No. 58, at 2–5.) To briefly summarize,

CRC is a non-profit organization that seeks to challenge

systemic injustice across the country, an interest shared

with the Law Professors. In May 2021, the Law Professors filed

twenty-one grievance complaints (the “Grievance Complaints”)

against current and former assistant district attorneys

working in the Queens District Attorney’s Office, claiming

prosecutorial misconduct they allegedly committed while so

employed. The Grievance Complaints requested that the

respective grievance committees publicly investigate and, if

appropriate, discipline each attorney specified. Plaintiffs

then created a website where they published the Grievance

Complaints for public viewing, urging visitors to email the

Grievance Committee about the allegations in the complaints.

Section 90(10) of the New York Judiciary Law, however,

states that “all papers, records, and documents . . . upon

any complaint, inquiry, investigation or proceeding relating

to the conduct or discipline of attorneys, shall be sealed

and deemed private and confidential.” N.Y. Jud. Law. § 90(10)

(“Section 90(10)”). Because of this provision, James Johnson

(“Johnson”), then-Corporation Counsel to the City of New

York, sent letters to each grievance committee expressing his

concerns about the online publication of the Grievance

Complaints (the “Johnson Letter”). Shortly thereafter, the

Law Professors received a letter from defendant Kearse

notifying them that any investigation into the Grievance

Complaints would be initiated sua sponte by the Grievance

Committee and kept confidential (the “Kearse Letter”),

essentially dismissing the Law Professors as complainants and

denying them access to information about the proceedings. The

Johnson and Kearse Letters provide the primary basis for the

allegations of wrongdoing asserted in the Complaint.

Following their receipt of the Johnson and Kearse

letters and the subsequent events, Plaintiffs brought suit in

this Court. They allege (1) Defendants retaliated against the

Law Professors in violation of their First Amendment rights;

(2) violations of the Fourteenth Amendment’s Equal Protection

Clause; (3) that Section 90(10) violates the First Amendment

and Article I, Section 8 of the New York Constitution both

facially and as-applied; (4) Defendants violated the United

States and New York Constitutions by denying Plaintiffs their

right to access government proceedings and records; and (5)

if the Court finds that the statute is constitutional,

Defendants must allow access to the records at issue under

Section 90(10)’s good-cause exception. Plaintiffs sue under

42 U.S.C. Section 1983 (“Section 1983”).

Shortly after filing the Complaint, Plaintiffs submitted

a motion to this Court requesting the Court order the

unsealing of the exhibits to the Complaint, and the Court

granted that motion on January 25, 2022. (See Unsealing

Order.) Plaintiffs then filed an unsealed version of the

Complaint. (See Dkt. No. 59.)

II. LEGAL STANDARD

The City Defendants move for dismissal pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure (“Rule

12(b)(6)”), while the State Defendants move for dismissal

under Federal Rule of Civil Procedure 12(b)(1) (“Rule

12(b)(1)”), and Kearse moves to dismiss the Complaint under

both Rule 12(b)(1) and Rule 12(b)(6).

1. Rule 12(b)(1) Standard

Under Rule 12(b)(1), a defendant may move to dismiss a

complaint for lack of subject-matter jurisdiction. See Fed.

R. Civ. Pro. 12(b)(1). When faced with a motion to dismiss

for lack of subject-matter jurisdiction, a plaintiff must

establish the court’s jurisdiction by a preponderance of the

evidence. See Davis v. Kosinsky, 217 F. Supp. 3d 706, 707

(S.D.N.Y. 2016). In reviewing a Rule 12(b)(1) motion, a

district court “must take all uncontroverted facts in the

complaint (or petition) as true, and draw all reasonable

inferences in favor of the party asserting jurisdiction.”

Fountain v. Karim, 838 F.3d 129, 134 (2d Cir. 2016) (quoting

Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d

239, 243 (2d Cir. 2014)). However, where there is a factual

dispute, the court may look to evidence outside the complaint

to resolve any disputed issues of jurisdictional facts. See

id. In reviewing information outside the pleadings, courts

may not consider conclusory statements or hearsay, and the

body of law applicable to Federal Rule of Civil Procedure 56

applies. See Davis, 217 F. Supp. 33 at 708.

2. Rule 12(b)(6) Standard

Rule 12(b)(6) provides for dismissal of a complaint for

“failure to state a claim upon which relief can be granted.”

Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This

standard is met “when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Id. A

complaint should be dismissed if the plaintiff has not offered

factual allegations sufficient to render the claims facially

plausible. See id. However, a court should not dismiss a

complaint for failure to state a claim if the factual

allegations sufficiently “raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555.

The requirement that a court accept the factual

allegations in the complaint as true does not extend to legal

conclusions. See Iqbal, 556 U.S. at 678. In adjudicating a

Rule 12(b)(6) motion, a court “must confine its consideration

to facts stated on the face of the complaint, in documents

appended to the complaint or incorporated in the complaint by

reference, and to matters of which judicial notice may be

taken.” Leonard F. v. Israel Disc. Bank of N.Y., 199 F.3d 99,

107 (2d Cir. 1999) (internal quotation marks omitted).

III. DISCUSSION

Because jurisdiction is a threshold issue, the Court

will first assess the arguments for dismissal under Rule

12(b)(1) before turning to the arguments that Plaintiffs

failed to state a claim for relief.

A. LACK OF SUBJECT MATTER JURISDICTION

There is no question that this Court would ordinarily

have subject-matter jurisdiction over this action. See 28

U.S.C. § 1331 (conferring federal question jurisdiction),

§ 1343(a) (providing original jurisdiction over civil rights

actions), § 1367 (allowing federal courts to exercise

supplemental jurisdiction). However, the State Defendants

argue that this Court should decline to exercise its

jurisdiction over this case and dismiss it pursuant to Rule

12(b)(1), due to the principles articulated in any of three

abstention doctrines: Younger abstention, O’Shea abstention,

or Pullman abstention. (See State Defendants Motion at 1–3.)

Kearse joins in these arguments for dismissal. (See Kearse

Motion at 1–2.) For the reasons explained below, the Court

finds each of these abstention doctrines inapplicable to the

case at hand.

1. Younger Abstention

State Defendants and Kearse first argue that the

doctrine of Younger abstention counsels the Court to decline

jurisdiction over this case. The Supreme Court has long held

that “only exceptional circumstances justify a federal

court’s refusal to decide a case in deference to the States.”

New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491

U.S. 350, 368 (1989). The doctrine of Younger abstention,

however, provides that “federal courts must decline to

exercise jurisdiction in three such exceptional categories of

cases.” Trump v. Vance, 941 F.3d 631, 637 (2d Cir. 2019).

Those three categories say federal courts should not intrude

into (1) ongoing state criminal prosecutions; (2) certain

civil enforcement proceedings; and (3) “pending civil

proceedings involving certain orders uniquely in furtherance

of the state courts’ ability to perform their judicial

functions.” Id. (quoting Sprint Commc’ns v. Jacobs, 571 U.S.

69, 78 (2013)).

The State Defendants claim this case falls into the

second category. They cite the Supreme Court’s decisions in

Middlesex County Ethics Committee v. Garden State Bar

Association, 457 U.S. 423 (1982), and Sprint as primary

support for their contention that attorney disciplinary

proceedings are civil enforcement proceedings entitled to

Younger abstention. But both of those cases are notably, and

significantly, different from the case at hand.

In Middlesex, an attorney was charged with disciplinary

violations for engaging “in conduct that [was] prejudicial to

the administration of justice,” after criticizing a criminal

court to the media in the middle of a high-profile trial, to

which he was not counsel of record. Middlesex, 457 U.S. at

428. Instead of responding to the disciplinary committee, the

attorney brought suit challenging the disciplinary rules in

federal court. The Supreme Court ruled that federal courts

should abstain because (1) state bar disciplinary proceedings

“are of a character to warrant federal-court deference”; and

(2) the state had very important interests in the pending

judicial proceedings, so “as long as the constitutional

claims of [Plaintiffs] can be determined in the state

proceeding and so long as there is no showing of bad faith,

harassment, or some other extraordinary circumstance that

would make abstention inappropriate, the federal courts

should abstain.” Id. at 434–35.

Sprint more recently listed Middlesex as an example of

a decision applying Younger to a state enforcement

proceeding, which the Court described as “characteristically

initiated to sanction the federal plaintiff, i.e., the party

challenging the state action, for some wrongful act.” Sprint,

571 U.S. at 79. These two Supreme Court decisions show that

the State Defendants are correct that attorney disciplinary

proceedings are the type of state proceeding that warrants

abstention to avoid federal intrusion into the state process.

However, the federal action in this case would not

intrude into the attorney disciplinary process. Unlike the

federal plaintiff in Middlesex, Plaintiffs here are not the

subjects of state disciplinary proceedings. Per the

uncontroverted facts alleged in the Complaint, Plaintiffs are

not uninvolved in any state disciplinary proceeding that

resulted from the Grievance Complaints. This contention is

supported by the Kearse Letter, which told Plaintiffs that

any investigation into their grievance complaints would be

initiated sua sponte and remain confidential.

Because Plaintiffs are not parties to the grievance

proceedings, two significant conclusions follow, both of

which distinguish this case from Middlesex. First, the

grievance proceedings at issue here were not initiated to

sanction Plaintiffs for any acts of misconduct related to

state judicial functions. Second, it is unclear how

Plaintiffs would be able to bring their constitutional

challenges in those state disciplinary proceedings due to

their lack of direct involvement in the underlying actions.

Further, Defendants have provided no argument or evidence

that this Court, in deciding this federal case, would in any

way interfere with or intrude upon the possible state

disciplinary hearings.

The justification underpinning Younger abstention is the

“seriousness of federal judicial interference with state

civil functions.” Huffman v. Pursue, Ltd., 420 U.S. 592, 603

(1975). In this case, the federal judiciary is not being asked

to interfere with state civil functions. Plaintiffs’

challenge focuses on the alleged retaliation against them for

publishing their grievance complaints, as well as on the

potential constitutional issues implicated in the enforcement

of Section 90(10). This interpretation constitutes a major

distinction from prior cases that have applied Younger. In

Schorr v. DoPico, for instance, the Second Circuit affirmed

a Younger dismissal where the “focus of [the federal

plaintiff’s] claims is an ongoing state attorney disciplinary

proceeding, which falls squarely within Younger abstention.”2

686 F. App’x 34, 36 (2d Cir. 2017).

The focus of Plaintiffs’ suit here is not any ongoing

state disciplinary proceeding. Rather, it is the wrongful

retaliation Plaintiffs allege having been subjected to for

publishing the Grievance Complaints. For purposes of

resolving this dispute, it does not matter what the Grievance

Committee is doing to investigate the complaints in question.

What Plaintiffs seek is merely a federal court ruling that

the information about the grievance proceedings that

Plaintiffs requested Defendants provide constitute public

records, and that in connection with Plaintiffs’ publication

of the material, their First Amendment rights are being

adequately protected.

The relief Plaintiffs ask for further supports a

determination that this suit will not interfere with any state

disciplinary proceedings. The Complaint requests the Court

to:

(1) declare that Defendants’ harassment, threats, and

retaliation violate the First Amendment;

(2) enjoin Defendants from further harassment, threats,

and retaliation;

2 It is also worth noting that in Schorr the federal plaintiff was the

subject of the attorney discipline proceedings, again a distinction

from the case at hand.

(3) declare that Defendants unlawfully denied the Law

Professors the status of “complainant” in violation of the

Constitution, as the action was allegedly taken in

retaliation for their publishing the Grievance Complaints;

(4) enjoin Defendants from treating Plaintiffs’

complaints different from those of similarly situated

complainants and in retaliation for their publishing the

Grievance Complaints;

(5) declare that Section 90(10) violates the First

Amendment and the New York Constitution;

(6) enjoin all Defendants from enforcing or attempting

to enforce Section 90(10) to preclude Plaintiffs from

publishing the Grievance Complaints;

(7) declare that Section 90(10), by denying public

access to state disciplinary proceedings regarding alleged

misconduct by assistant district attorneys, violates the

federal and New York Constitutions;

(8) enjoin all Defendants from enforcing or attempting

to enforce Section 90(10) to deny such public access;

(9) order Defendants to make public all records

regarding the Law Professors’ complaints; and

(10) declare there is good cause to unseal all

disciplinary proceedings and records stemming from the Law

Professors’ complaints. (See Complaint at 38–40.)

Even if the Court were to take every one of those

actions, nothing would necessarily affect the way in which

the State can conduct its disciplinary investigations and

disciplinary proceedings. The Court would not be stepping in

or directly interfering with such proceedings. Increased

public disclosure may generate increased attention and

publicity for the state’s actions, but as the Supreme Court

has said, “even in the presence of parallel state proceedings,

abstention from the exercise of federal jurisdiction is the

‘exception, not the rule.’” Sprint, 571 U.S. at 81–82 (quoting

Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 236 (1984)). The

Sprint Court cautioned against allowing the exception to

swallow the rule. In fact, federal court abstention here would

unduly extend the limited Younger exception to include

federal cases where a state proceeding would not be directly

affected by the outcome of the federal case, but where the

federal and state cases are tangentially related. The Court

finds Younger and its progeny do not provide a compelling

basis for the Court to take the exceptional and extraordinary

measure of declining jurisdiction over this matter.

2. O’Shea Abstention

The State Defendants and Kearse next argue that the Court

should decline to exercise its jurisdiction under the

abstention principles set forth in O’Shea v. Littleton, 414

U.S. 488 (1974). They assert that O’Shea abstention is

appropriate whenever the requested relief would “improperly

interfere in the ‘internal workings of state courts.’” (State

Defendants’ Motion at 3 (quoting Kaufman v. Kaye, 466 F.3d

83, 86 (2d Cir. 2006).) But that proposition represents an

overstatement of the doctrine and misrepresents both O’Shea

and Kaufman.

The plaintiffs in O’Shea sought an “injunction aimed at

controlling or preventing the occurrence of specific events

that might take place in the course of future state criminal

trials,” which the Supreme Court characterized as “an ongoing

federal audit of state criminal proceedings which would

indirectly accomplish the kind of interference that Younger

v. Harris and related cases sought to prevent.” O’Shea, 414

U.S. at 500. O’Shea counseled federal courts to abstain from

hearing cases where the requested relief would constitute “a

major continuing intrusion of the equitable power of the

federal courts into the daily conduct of state criminal

proceedings.” Id. at 502 (emphasis added).

The Second Circuit’s caselaw applying O’Shea clarifies

this guidance. Kaufman heard a challenge to the procedure for

assigning appellate panels in New York’s Second Department of

the Appellate Division, and the Second Circuit affirmed

O’Shea dismissal because the Court could not resolve the case

“without committing to resolving the same issues as to the

remedy chosen by the state and as to the subsequent case-by-

case implementation of the assignment procedures in the

Second Department.” Kaufman, 466 F.3d at 87. In simpler terms,

federal courts cannot “legislate and engraft new procedures

upon existing state criminal practices.” Id. at 86 (quoting

Wallace v. Kern, 520 F.2d 400, 404 (2d Cir. 1975)). O’Shea

abstention “seeks to avoid” “[o]ngoing, case-by-case

oversight of state courts.” Disability Rights N.Y. v. New

York, 916 F.3d 129, 136 (2d Cir. 2019).

That doctrine is very different from what Plaintiffs are

seeking in the case now before the Court. Here, Plaintiffs

are asking the Court to determine the constitutionality of a

state statute, not to oversee internal judicial procedures or

ongoing proceedings, and requesting appropriate relief in the

event the Court finds the statute unconstitutional.

Determining the constitutionality of a state statute is, to

quote Marbury v. Madison, “emphatically the province and duty

of the judicial department.” 5 U.S. (1 Cranch) 137, 177

(1803); see also id. at 178 (“So if a law be in opposition to

the constitution . . . the court must determine which of these

conflicting rules governs the case. This is of the very

essence of judicial duty.”).

In the same vein, the injunctive relief Plaintiffs

request does not ask the Court to change state procedure for

handling misconduct proceedings or anything similar.3 It is

either focused on the rights Plaintiffs themselves claim, or

asks this Court to prevent Defendants from enforcing an

invalid law if it rules that Section 90(10) is

unconstitutional. Thus, under the facts presented here,

O’Shea abstention is inapplicable and does not provide

compelling grounds for this Court to abstain from exercising

its jurisdiction.

3. Pullman Abstention

Defendants’ final argument for Rule 12(b)(1) dismissal

of the Complaint is that the Court should decline to exercise

its jurisdiction under the doctrine of Pullman abstention.

The Pullman abstention doctrine holds that federal courts

should “abstain from decision when difficult and unsettled

questions of state law must be resolved before a substantial

federal constitutional question can be decided.” Alliance of

3 In Disability Rights, the Second Circuit found O’Shea abstention applied

because the plaintiff-appellants were requesting relief that would “have

federal courts conduct a preemptive review of state court procedure in

guardianship proceedings.” 916 F.3d at 137. By contrast, Plaintiffs here

are not seeking to have this Court examine state court procedure

regarding attorney discipline proceedings. They are only asking the

Court to invalidate the privacy provision governing those procedures if

the Court concludes that that provision is unconstitutional, thus

otherwise leaving the existing procedure intact.

Am. Insurers v. Cuomo, 854 F.2d 591, 601 (2d Cir. 1988)

(quoting Midkiff, 467 U.S. at 236).

The Second Circuit has held that Pullman abstention “may

be appropriate” when three conditions are met: “(1) an unclear

state statute is at issue; (2) resolution of the federal

constitutional issue depends on the interpretation of the

state law; and (3) the law is susceptible ‘to an

interpretation by a state court that would avoid or modify

the federal constitutional issue.’” Vermont Right to Life

Comm. v. Sorrell, 221 F.3d 376, 385 (2d Cir. 2000) (quoting

Greater N.Y. Metro. Food Council v. McGuire, 6 F.3d 75, 77

(2d Cir. 1993) (per curiam)).

None of these three conditions are met here. First,

Section 90(10) is not unclear. It is a very straightforward

provision stating that “all papers, records, and documents

. . . upon any complaint, inquiry, investigation or

proceeding relating to the conduct or discipline of an

attorney or attorneys, shall be sealed and deemed private and

confidential.” N.Y. Jud. Law § 90(10). Second, resolution of

the constitutional issue does not depend on the

interpretation of state law; it depends on interpretation of

federal jurisprudence embodying the First Amendment. See

Flores v. Stanford, No. 18 Civ. 2468, 2019 WL 4572703, at *6

(S.D.N.Y. Sept. 20, 2019) (finding the second criterion for

Pullman abstention was not met where “plaintiffs’ federal

constitutional claims do not depend on an interpretation of

New York State law — rather, they depend on an interpretation

and application of federal [constitutional] jurisprudence”).

And third, a state court could not interpret Section 90(10)’s

confidentiality provision in a way that would avoid the First

Amendment question, as the First Amendment question is the

entire question at issue.

Because none of the necessary prerequisites for Pullman

abstention are met here, the Court’s declining to exercise

subject-matter jurisdiction under that doctrine is

unwarranted. This determination holds with particular force

because abstention “is not an automatic rule applied whenever

a federal court is faced with a doubtful issue of state law”

and where deciding whether to abstain, “the balance [is]

heavily weighted in favor of the exercise of jurisdiction.”

Vermont Right to Life Comm., 221 F.3d at 385 (internal

quotations omitted). The scales tip towards exercise of

jurisdiction here, and the Court declines to abstain.

Accordingly, Defendants’ motion to dismiss the Complaint

pursuant to Rule 12(b)(1) for lack of subject-matter

jurisdiction is denied.

B. FAILURE TO STATE A CLAIM

Having established its jurisdiction over this dispute,

the Court next turns to the arguments Defendants’ raise asking

the Court to dismiss the Complaint pursuant to Rule 12(b)(6).

The City Defendants and Kearse each put forth separate grounds

for dismissal, all of which are evaluated below in turn. While

the Court can reach a decision on several of the purported

grounds for dismissal, certain arguments -- that Plaintiffs

failed to state a claim for First Amendment retaliation and

that the Defendants are entitled to qualified immunity --

require the Court to first determine whether Section 90(10)

violates the First Amendment, either facially or as applied.

That question forms the basis of Plaintiffs’ currently

pending motion for partial summary judgment. (See Dkt. Nos.

63, 64.) The Court will reserve decision on those arguments

pending resolution of the motion for partial summary

judgment.

1. The City Defendants’ Arguments

The City Defendants present four arguments for

dismissal: (1) the claims are barred by “absolute privilege”

(City Defendants Motion at 1); (2) the City Defendants are

improper defendants for a challenge to Section 90(10); (3)

Plaintiffs failed to state a claim for First Amendment

retaliation because they cannot establish they engaged in

protected speech; and (4) that the City Defendants are

protected by qualified immunity because their conduct did not

violate a clearly established constitutional right.

As discussed, the latter two arguments require the Court

to determine whether Section 90(10) violates the First

Amendment, so the Court declines to assess those arguments at

this time. The Court can, however, determine whether

dismissal of the Complaint is warranted on the ground of

absolute privilege or that the City Defendants are improper

defendants.

a. Absolute Privilege

City Defendants’ argue they should be dismissed from the

suit because they are protected by absolute privilege.

Plaintiffs counter that absolute privilege does not apply to

Section 1983 cases.4 “Absolute privilege” refers to the

concept that “public policy demands that certain

communications . . . cannot serve as the basis for the

imposition of liability in a [legal] action.” Nevin v.

Citibank, N.A., 107 F. Supp. 2d 333, 343 (S.D.N.Y. 2000)

(quoting Toker v. Pollak, 376 N.E.2d 163, 166 (N.Y. 1978)).

4 The parties’ respective arguments are a bit clouded by some

interchangeable use of “privilege” and “immunity” on both sides. To be

clear, the City Defendants do not appear to be arguing that they are

absolutely immune from suit, but rather that their letters to the

Grievance Committee cannot serve as the basis for any legal claims

because those letters are protected by absolute privilege.

Such communications include those made by individuals

“participating in a public function, such as judicial,

legislative, or executive proceedings.” Toker, 376 N.E.2d at

166 (citations omitted). It is undisputed that attorney

disciplinary proceedings are considered judicial proceedings.

See Anonymous v. Ass’n of the Bar, 515 F.2d 427, 433 (2d Cir.

1975).

While they do not specify that their claim of privilege

is grounded in state law, the City Defendants cite New York

law principles and definitions for their assertation that

absolute privilege doctrine bars the claims at issue here.

(See City Defendants Motion at 1 (“It is well-established New

York law that statements made in the context of judicial or

quasi-judicial proceedings are absolutely privileged.”).)

However, Plaintiffs’ claims assert a mix of federal law and

state law claims. In the Second Circuit, when a plaintiff

brings both federal and state law claims and the evidence at

issue is relevant to all claims, “courts consistently have

held that the asserted privileges are governed by the

principles of federal law.” von Bulow v. von Bulow, 811 F.2d

136, 141 (2d Cir. 1987). Thus, the relevant inquiry is whether

federal law, not New York law, recognizes an absolute judicial

proceedings privilege applicable here, and, if it does not,

whether this Court should nonetheless defer to the state-law

privilege.

Federal courts have not recognized an absolute judicial-

proceedings privilege under federal law. Where a privilege

has not yet been recognized under federal law, the Second

Circuit has advised that “as a matter of comity, federal

courts accord deference to state-created privileges, [but]

such privileges are construed narrowly and must yield when

outweighed by a federal interest in presenting relevant

information to the trier of fact.” United States v. 31-33

York St., 930 F.2d 139, 141 (2d Cir. 1991) (citations

omitted). Courts in this District have applied a “balancing

test” to these privilege questions, weighing the deference to

be accorded the state-law privilege with the need for the

information sought, including the public interest in either

protecting or disclosing the information. See Howard v. City

of New York, No. 12 Civ. 933, 2013 WL 174210, at *2 (S.D.N.Y.

Jan. 16, 2013).

Here, the scales tilt in favor of construing the

judicial-proceedings privilege narrowly and finding the

privilege inapplicable to the facts at hand. The Johnson and

Kearse Letters would both be barred from judicial

consideration if the privilege applied. The Johnson Letter is

at the heart of this dispute -- it forms the basis for all

Plaintiffs’ claims, including the claims under the federal

Constitution. There is a strong interest and need for the

information contained in that letter to be considered in the

Court’s adjudication of the controversy at hand. The New York

judicial-proceedings privilege is a prudent protective

measure against common law tort claims like defamation and

libel, but there is also an overwhelming interest in ensuring

public officials do not violate an individual’s

constitutional rights. The balance of these interests weighs

against applying a state-law privilege that has not been

recognized under federal law to shield a particular set of

public officials from litigating civil rights claims. After

balancing these considerations, the Court concludes that the

City Defendants’ letters are not barred by the judicial-

proceedings privilege from this Court’s consideration in the

resolution of the parties’ underlying dispute.

b. Improper Defendants

First, the Court notes that the City Defendants assert

that all claims against Katz should be dismissed because the

Complaint does not identify any actions taken by her. That

point is accurate. Mentions of Katz in the Complaint are

limited to the Corporation Counsel sending the Johnson Letter

in his capacity as Katz’s attorney. But while sparse, those

allegations are sufficient to withstand a motion to dismiss.

It is well-settled that “[t]he lawyer-client relation [is]

one of agent-principal,” United States v. Int’l Bhd. of

Teamsters, 986 F.2d 15, 20 (2d Cir. 1993), meaning the

Complaint alleges Katz’s agent acted on her behalf as her

attorney.

At the pleading stage, a plaintiff need only allege

“sufficient factual matter, accepted as true, to ‘state a

claim for relief that is plausible on its face.’” Iqbal, 556

U.S. at 678 (quoting Twombly, 550 U.S. at 570). “The

plausibility standard is not akin to a probability

requirement, but it asks for more than a sheer possibility

that a defendant has acted unlawfully.” Id. (quotations

omitted). The Complaint satisfies this requirement in its

allegations of Katz’s wrongdoing through her agent-attorney.

Perhaps discovery will show otherwise, but at this time, Katz

should not be dismissed from the suit.

Second, and more broadly, the City Defendants argue they

should be dismissed from the suit because they are not proper

defendants for a challenge to Section 90(10) because they do

not enforce that law. They do not cite any authority for this

argument. (See City Defendants Motion.) Plaintiffs counter

that the City Defendants’ wrote to the Grievance Committee

complaining that the Law Professors violated Section 90(10),

and that such action is enough to open the City Defendants up

to a lawsuit challenging the statute. (See City Defendants

Opposition at 3.)

Plaintiffs’ argument finds indirect support in the

Supreme Court decision in Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014). In that case, a non-profit organization

brought a pre-enforcement challenge to an Ohio law that

prohibited people from making false statements about the

voting record of a candidate during a political campaign. One

of the defendants was then-Congressman Steve Driehaus, the

subject of the alleged false statements. Driehaus had filed

a complaint with the Ohio Elections Commission alleging that

Susan B. Anthony List violated the Ohio law by falsely

representing his voting history on abortion. His complaint

led to a Commission hearing, which found probable cause that

a violation had occurred. The Supreme Court determined that

Susan B. Anthony List had demonstrated an injury-in-fact

sufficient for Article III standing in its suit against

Driehaus. Id. at 168.

Plaintiffs argue that the City Defendants are analogous

to Driehaus, and thus their action can go forward. But the

Supreme Court did not address or assess whether Driehaus was

a proper defendant -- and, on remand, Susan B. Anthony List

voluntarily dismissed all claims against Driehaus and

proceeded only against the Elections Commission and its

members in their official capacities. See Susan B. Anthony

List v. Ohio Elections Comm’n, 45 F. Supp. 3d 765, 770 n.4

(S.D. Ohio 2014). So Susan B. Anthony List does not end this

Court’s inquiry in the instant case, as Plaintiffs believe it

should.

Instead, the Court finds persuasive guidance in a recent

decision from another court in this Circuit. In Carpenter v.

James, No. 21 Civ. 6303, -- F. Supp. 3d --, 2021 WL 5879090

(W.D.N.Y. Dec. 13, 2021), the Western District of New York

considered several constitutional challenges to New York’s

public accommodations laws. New York State Attorney General

Letitia James sought to be dismissed from the lawsuit,

claiming she was an improper defendant because her

enforcement power consisted of the ability to file

administrative complaints, a task almost anybody could

complete. See id. at *8. The court held that James was a

proper defendant because “to show that her injury will be

‘redressed by a favorable decision,’ Plaintiff need not prove

that ‘a favorable decision will relieve [her] every injury.’”

Id. (quoting Susan B. Anthony List., 573 U.S. at 157, and

Larson v. Valente, 456 U.S. 228, 243 n.15 (1982)). The

plaintiff in Carpenter would obtain partial relief through an

injunction against Attorney General James, and that was

sufficient to establish jurisdiction over her as a defendant.

The same principles apply here. An injunction against

the City Defendants would provide Plaintiffs with, at

minimum, partial relief. They allege that the City Defendants

will continue to send letters to the Grievance Committee, or

as they say, that, absent an injunction, the “threats and

retaliation will continue,” (Complaint ¶ 77). According to

the Complaint, the Kearse and Johnson letters accuse the Law

Professors of violating New York state law, and the Law

Professors are concerned the letters could hurt their

reputation or position as attorneys in good standing in New

York. Plaintiffs would obtain relief from that potential

injury if the Court enjoins the City Defendants from telling

the Grievance Committee that the Law Professors are violating

Section 90(10). That relief would be enough to allow the

action against the City Defendants to continue. Accordingly,

the Court finds that the City Defendants are proper defendants

in this lawsuit.

2. Kearse’s Arguments

Kearse argues the suit against her should be dismissed

because (1) the Eleventh Amendment bars a suit against her in

her official capacity as Chief Counsel to the Grievance

Committee; (2) she is entitled to absolute immunity as an

official acting in a quasi-judicial capacity; and (3) the

doctrine of qualified immunity prohibits a suit against her

in her personal capacity. (See Kearse Motion at 2–3.) For the

reasons explained above, the Court will not assess the

qualified immunity argument at this time.

a. Eleventh Amendment Immunity

The Eleventh Amendment to the United States Constitution

bars “federal suits against state governments by a state’s

own citizens” or by citizens of another state. Woods v.

Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232,

236 (2d Cir. 2006) (citing Hans v. Louisiana, 134 U.S. 1, 15

(1890)). It is well-established that “[t]he immunity

recognized by the Eleventh Amendment extends beyond the

states themselves to ‘state agents and state

instrumentalities’ that are, effectively, arms of the state.”

Id. (quoting Regents of the Univ. of Cal. v. Doe, 519 U.S.

425, 429 (1997)); see also Mancuso v. N.Y. State Thruway

Auth., 86 F.3d 289, 292 (2d Cir. 1996) (explaining that a

government body is entitled to Eleventh Amendment “immunity

if it can demonstrate that it is more like an ‘arm of the

State,’ such as a state agency, than like ‘a municipal

corporation or other political subdivision.’” (citations

omitted)).

Plaintiffs do not dispute that the Grievance Committee

is an arm of the State of New York and is entitled to Eleventh

Amendment immunity. Indeed, the Second Circuit has already

acknowledged as much to be true. See Napolitano v. Saltzman,

315 F. App’x 351, 351 (2d Cir. 2009) (“We affirm the district

court’s holding that the Eleventh Amendment bars

[Plaintiff’s] claims for damages against . . . the Grievance

Committee[] and [Counsel to the Grievance Committee] in his

official capacity.”).

Nevertheless, Eleventh Amendment immunity does not

insulate the Grievance Committee and Kearse from every

lawsuit. First, Kearse may still be sued in her individual

capacity rather than her official capacity. See Ford v.

Reynolds, 316 F.3d 351, 356 (2d Cir. 2003). Second, Kearse

may still be sued in her official capacity for prospective,

injunctive relief under the doctrine set forth in Ex parte

Young, 209 U.S. 123 (1908). See Henrietta D. v. Bloomberg,

331 F.3d 261, 287 (2d Cir. 2003) (“The Eleventh Amendment,

however, does not preclude suits against state officers in

their official capacity for prospective injunctive relief to

prevent a continuing violation of federal law.”). The Ex parte

Young exception to Eleventh Amendment immunity applies when

“the complaint alleges an ongoing violation of federal law

and seeks relief properly characterized as prospective.” D.K.

v. Teams, 260 F. Supp. 3d 334, 352 (S.D.N.Y. 2017) (quoting

Verizon Md. Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635,

645 (2002)).

Plaintiffs’ Complaint meets that standard. They seek

injunctive relief to stop an alleged violation of federal

law. They allege Section 90(10) violates the First Amendment

and that they will face future, continued harassment,

retaliation, or punishment for exercising their First

Amendment rights. In terms of the injury alleged and the

requested relief, this case presents the quintessential

lawsuit that falls under the Ex parte Young doctrine.

While Plaintiffs may not properly seek monetary damages

from Kearse, to the extent they seek relief from her in

Kearse’s official capacity as counsel to the Grievance

Committee, they may seek injunctive (or declaratory) relief

to prohibit future constitutional violations. To that extent,

the Eleventh Amendment does not bar this action and dismissal

on Eleventh Amendment grounds is unwarranted. Defendants’

motion to dismiss the Complaint on the ground of state

sovereign immunity is denied.

b. Quasi-Judicial Immunity

Finally, Kearse claims she is entitled to absolute

immunity because in taking the action at issue she was

functioning in a quasi-judicial capacity. The Second Circuit

has indeed held that counsel to the Grievance Committee

“enjoys absolute immunity for his actions as counsel . . .,

which are ‘quasi-public adjudicatory [or] prosecutorial’ in

nature.” Napolitano, 315 F. App’x at 351–52 (quoting Barbara

v. N.Y. Stock Exch., Inc., 99 F.3d 49, 58 (2d Cir. 1996)).

Plaintiffs contend this immunity is inapplicable for the same

reason as Eleventh Amendment immunity: the immunity does not

apply to claims for injunctive relief (see Opposition to

Kearse at 2), but the inquiry is not as simple as either party

would like the Court to believe.

Ex parte Young provided an exception to Eleventh

Amendment immunity for suits seeking prospective injunctive

relief, but in 1996, Congress amended Section 1983 to state

that in “any action brought against a judicial officer for an

act or omission taken in such officer’s judicial capacity,

injunctive relief shall not be granted unless a declaratory

decree was violated or declaratory relief was unavailable.”

42 U.S.C. § 1983. While the statute does not speak to so-

called “quasi-judicial officers,” the category into which

Kearse falls, the Court need not determine the extent to which

the protection for quasi-judicial officers differs, if at

all, from that for judicial officers for two reasons.

First, the amended text of Section 1983 explicitly

allows for suits seeking declaratory relief. See id.; see

also Brown v. City of New York, 210 F. Supp. 2d 235, 239 n.6

(S.D.N.Y. 1999) (“The doctrine of individual immunity does

not protect against claims for declaratory relief.” (citing

the Senate Report to the 1996 amendment to Section 1983)).

This exception means that a judicial officer can still be

sued for declaratory relief. Because quasi-judicial immunity

has the same reach as judicial immunity, see, e.g., Thaler v.

Casella, 960 F. Supp. 691, 700 (S.D.N.Y. 1997), a quasi-

judicial officer like Kearse may still be sued for declaratory

relief. The doctrine of absolute immunity does not require

the dismissal of Plaintiffs’ entire suit insofar as they

request declaratory relief on several issues.

Second, judicial immunity does not apply -- and, thus,

does not bar a suit for injunctive relief -- when “the action

in question is not judicial in nature, as when the judge

performs an administrative, legislative, or executive act.”

Huminski v. Corsones, 396 F.3d 53, 75 (2d Cir. 2005). The two

necessary factors to determine whether an action was judicial

in nature “relate to the nature of the act itself, i.e.,

whether it is a function normally performed by a judge, and

to the expectations of the parties, i.e., whether they dealt

with the judge in his judicial capacity.” Id. (quoting Stump

v. Sparkman, 435 U.S. 349, 362 (1978)). In Napolitano, the

Second Circuit concluded that counsel to the Grievance

Committee was acting within the scope of the position that

entitled him to quasi-judicial immunity when he “receiv[ed

grievance] complaints . . . , investigat[ed] them, and ma[de]

recommendations to the Appellate Division.” Napolitano, 315

F. App’x at 352.

Here, based on the facts alleged in the Complaint, Kearse

did not merely receive, investigate, and provide a

recommendation to the Grievance Committee. Plaintiffs allege

she acted without any authority and “refuse[d] to treat a

complainant as a complainant,” departing from both the

procedure followed in other grievance cases and New York law

governing attorney grievance proceedings. (Complaint ¶¶ 72–

75.) At this stage in the proceedings, the Court must “accept

the allegations in the . . . complaint as true.” Hill v. City

of New York, 45 F.3d 653, 657 (2d Cir. 1995) (reviewing an

order denying dismissal due to absolute immunity). The

allegations in the Complaint are sufficient to plausibly

suggest Kearse acted outside the scope of her authority. Under

that determination, Kearse’s actions would not be protected

by judicial immunity.

While discovery may reveal Kearse did not act improperly

towards Plaintiffs, the Court cannot conclude, at this time,

that Kearse is entitled to absolute quasi-judicial immunity.

Without quasi-judicial immunity, Plaintiffs’ action for

declaratory and injunctive relief may go forward. Because the

law allows Plaintiffs to seek both declaratory and injunctive

relief from Kearse, Kearse’s motion to dismiss the Complaint

is denied.

IV. ORDER

It is hereby ORDERED that the motion so-deemed by the

Court (Dkt. No. 35) filed by Defendants Georgia Pestana and

Melinda Katz (“City Defendants”) to dismiss the unredacted

complaint (“Complaint,” Dkt. No. 59) filed by Plaintiffs

Civil Rights Corps, Cynthia Godsoe, Nicole Smith Futrell,

Daniel S. Medwed, Justin Murphy, Abbe Smith, and Steven

Zeidman (”Plaintiffs”) is DENIED IN PART; and it is further

ORDERED that the motion so-deemed by the Court (Dkt. No.

41) filed by Defendants Andrea E. Bonina and Hector LaSalle

to dismiss Plaintiffs’ Complaint is DENIED; and it is further

ORDERED that the motion so-deemed by the Court (Dkt. No.

47) filed by Defendant Diana Maxfield Kearse (“Kearse”) to

dismiss Plaintiffs’ Complaint is DENIED IN PART. The Court

will reserve judgment on the remaining arguments made in the

motions filed by the City Defendants and Kearse pending

resolution of Plaintiffs’ motion for partial summary

judgment.

SO ORDERED.

Dated: New York, New York Af ae

5 May 2022 JZ Z

Victor Marrero

Deal;

35