# Civil Rights Corps. v. Cushman

> District Court, S.D. New York · May 5, 2022

URL: https://www.frixlaw.com/law-library/cases/10341017

## Case

- **Court:** District Court, S.D. New York
- **Decided:** May 5, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10341017. Public record. Not legal advice.