Civil Rights Corps. v. Cushman

DOCUMENT

ELECTRONICALLY FILE

UNITED STATES DISTRICT COURT DOC #:

SOUTHERN DISTRICT OF NEW YORK DATE FILED: 6/13/2023

------- A XxX

CIVIL RIGHTS CORPS, ET AL., :

Plaintiffs, :

: 21 Civ. 9128 (VM)

- against - :

: DECISION AND 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 non-

profit organization Civil Rights Corps (“CRC,” and with the

Law Professors, “Plaintiffs”) filed suit against Georgia

Pestana (“Pestana”), Corporation Counsel of the City of New

York (“Corporation Counsel”); 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).

Between December 20, 2021 and January 14, 2022, the Court

received three letters, so-deemed by the Court as motions to

dismiss, from different Defendants seeking dismissal of the

Complaint: one by Pestana and Katz (the “City Defendants”)

(see “City Defendants’ Motion to Dismiss,” Dkt. No. 35), the

second by Bonina and LaSalle (the “State Defendants”) (see

“State Defendants’ Motion to Dismiss,” Dkt. No. 41), and the

third filed by Kearse. (See “Kearse’s Motion to Dismiss,”

Dkt. No. 47.) On May 5, 2022, the Court denied the State

Defendants’ motion in full and denied the City Defendants’

and Kearse’s motions in part and reserved judgment in part.

(See Civil Rights Corps v. Pestana, No. 21 Civ. 9128, 2022 WL

1422852 (S.D.N.Y. May 5, 2022) (“CRC II”)).

Now before the Court is Plaintiffs’ motion for partial

summary judgment (“Motion,” Dkt. No. 63) and accompanying

memorandum of law (“Plaintiffs’ Brief,” Dkt. No. 64). For the

reasons explained below, the Motion is GRANTED in part. Also

before the Court are the undecided issues from City

Defendants’ and Kearse’s Motions to Dismiss. For the reasons

below, both motions are DENIED.

I. BACKGROUND

A. Factual Background

The Court assumes familiarity with the factual

background as recited in the Court’s two prior orders in this

matter. (See Civil Rights Corps v. Pestana, No. 21 Civ. 9128,

2022 WL 220020, at *1–2 (S.D.N.Y. Jan. 25, 2022) (“CRC I”);

CRC II, 2022 WL 1422852, at *1–2.) However, because a motion

for summary judgment is now before the Court, the Court is no

longer bound to accept the facts alleged in the Complaint as

true, nor must it draw all reasonable inferences in favor of

Plaintiffs. Instead, the Court draws the factual background

below from the undisputed facts set forth in the parties’

statements filed pursuant to Local Rule 56.1.1

CRC is a non-profit organization that seeks to challenge

systemic injustice across the country, an interest shared

with the Law Professors. On May 3, 2021, the Law Professors

filed twenty-one grievance complaints (the “Grievance

Complaints”) against current and former assistant district

attorneys working in the Queens County District Attorney’s

Office, claiming prosecutorial misconduct those attorneys

allegedly committed while so employed. Each Grievance

Complaint requested that the respective grievance committees

publicly investigate and, if appropriate, discipline the

attorney involved. Plaintiffs then created a website,

AccountabilityNY.org, and publicly published the Grievance

Complaints.

1 See “Plaintiffs’ 56.1 Statement,” Dkt. No. 66; “City Defendants’ 56.1

Statement,” Dkt. No. 76; “State Defendants’ 56.1 Statement,” Dkt. No.

79; “Kearse’s 56.1 Statement,” Dkt. No. 84. Except where directly

quoted, no further citations to the record will be made in this factual

recitation.

On June 2, 2021, James Johnson (“Johnson”), then-

Corporation Counsel of the City of New York, sent identical

letters to each grievance committee expressing his concerns

about the online publication of the Grievance Complaints (the

“Johnson Letter.”) Plaintiffs appended a copy of this letter

as Exhibit 1 to the Complaint. (See Ex. 1, Dkt. No. 59.)

Johnson wrote “[a]s Chief Legal Officer of the City of New

York and as legal counsel to the Office of the District

Attorney for Queens County” to “express [his] deep concern”

about the Grievance Complaints. (Johnson Letter at 1.)

Johnson explained the basis of his concern as that New York

State Judiciary Law Section 90(10) (“Section 90(10)”)

“designates attorney disciplinary records -- including the

complaint -- private and confidential.” (Id. at 2.) He

continued that “in direct contravention of this legal

directive and long-established public policy, the complainant

law professors not only posted the complaints online, but

designed a special website to host these and future grievance

complaints,” an act that Johnson stated was “an orchestrated

campaign to upend the attorney grievance process to advance

their stated goal of holding prosecutors accountable.” (Id.

at 2.) Johnson concluded by stating that he was writing “to

make sure that the Committee is aware” that Plaintiffs are

conducting a “very public campaign . . . which, [he]

submit[s], runs afoul of the confidentiality provisions of

the law and the purpose of the grievance process.” (Id. at

3.)

Section 90(10), the statutory provision upon which

Johnson relies, 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). Less than two weeks

after they received the Johnson Letter, the Law Professors

received a letter from defendant Kearse, a full copy of which

is appended as Exhibit 2 to the Complaint, notifying them

that any investigation into the Grievance Complaints would be

initiated sua sponte by the Grievance Committee and “remain

confidential pursuant to New York State Judiciary Law § 90.”

(“Kearse Letter,” Ex. 2, Dkt. No. 59.) Plaintiffs interpreted

the Kearse Letter as essentially dismissing the Law

Professors as complainants and denying them access to

information about the proceedings and any other benefits that

come with “complainant” status. The Johnson and Kearse

Letters provide the primary basis for the First Amendment

violations alleged in Plaintiffs’ Complaint.

Following their receipt of both letters, Plaintiffs,

through counsel, wrote to the Grievance Committee, Pestana,

and Kearse, expressing their displeasure with the course of

events. Defendant Pestana, who had succeeded Johnson as

Corporation Counsel, responded and reasserted her Office’s

belief that Plaintiffs were running afoul of Section 90(10).

Similarly, Kearse replied and reiterated that any possible

investigation would be conducted by the Grievance Committee

sua sponte.

B. Procedural History

After the unsuccessful effort to resolve the parties’

dispute by letter exchange, Plaintiffs filed this action.

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

Constitutions of the United States and of New York State by

denying Plaintiffs their right to access government

proceedings and records; and (5) if the Court finds that

Section 90(10) is constitutional, Defendants must allow

access to the records at issue under the statute’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 CRC I, 2022 WL

220020. Plaintiffs then filed an unsealed version of the

Complaint. (See Dkt. No. 59.) While that motion was pending,

Plaintiffs filed a letter expressing their intent to file a

motion for partial summary judgment (Dkt. No. 29), and City

Defendants, State Defendants, and Kearse filed letters

seeking leave to file motions to dismiss the Complaint. The

Court ordered full briefing on Plaintiffs’ motion for partial

summary judgment but noted that it would resolve the

anticipated motions to dismiss on the basis of the parties’

pre-motion letters. (See Dkt. No. 56, (citing

Kapitalforeningen Lægernes Invest v. United Techs. Corp., 779

F. App’x 69, 70 (2d Cir. 2019) (Mem.)). On May 5, 2022, the

Court issued an order on the motions to dismiss, denying State

Defendants’ motion to dismiss in full and denying the motions

of Kearse and City Defendants in part, while reserving

judgment on the issues that required a determination

regarding Section 90(10)’s constitutionality. See generally

CRC II, 2022 WL 1422852.

Now before the Court is Plaintiffs’ Motion and

accompanying memorandum of law, which seeks summary judgment

on Plaintiffs’ third claim for relief: that Section 90(10)

violates the First Amendment of the United States

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

Constitution, both as-applied and on its face. The Court has

also received City Defendants’, State Defendants’, and

Kearse’s oppositions to the Motion (see “City Opposition,”

Dkt. No. 77; “State Opposition,” Dkt. No. 78; “Kearse

Opposition,” Dkt. No. 82); Plaintiffs’ reply to the

opposition briefs, (see “Plaintiffs’ Reply,” Dkt. No. 85); as

well as a brief in support of the Motion, filed by amicus

curiae Newsday LLC, Pro Publica Inc., The Associated Press,

and The New York Times Company. (See “Amicus Brief,” Dkt. No.

73.)

II. LEGAL STANDARD

A. Summary Judgment Legal Standard

Federal Rule of Civil Procedure 56 (“Rule 56”) states

that a court “shall grant summary judgment if the movant shows

that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). Summary judgment is appropriate where, upon

motion of one party, the non-moving party “fail[ed] to make

a showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will

bear the burden of proof at trial.” Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986). In deciding a motion for summary

judgment, the Court may consider all facts in the record

before it. Id. at 323.

When a motion for summary judgment is properly supported

by evidence, the party opposing a motion for summary judgment

“may not rest upon mere allegations or denials -- rather, he

must present sufficient probative evidence to establish a

genuine issue of material fact.” Horror Inc. v. Miller, 15

F.4th 232, 240 (2d Cir. 2021). Evidence that is “‘merely

colorable,’ or is not ‘significantly probative’” is

insufficient to defeat a motion for summary judgment. Id.

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–

50 (1986)). In short, the nonmoving party’s evidence must be

persuasive enough that a reasonable jury could return a

judgment in the nonmovant’s favor. Id. at 241.

B. First Amendment Legal Standard

The Court begins by noting that while certain free-

speech violations, such as retaliation, brought under Article

I, Section 8 (“Article I, Section 8”) of the New York State

Constitution are judged under the same principles that apply

to claims alleging violations of the First Amendment to the

United States Constitution (the “First Amendment”), see

Martinez v. Sanders, 307 F. App’x 467, 468 n.2 (2d Cir. 2008),

Article I, Section 8 generally offers broader protection than

the First Amendment. See O’Neill v. Oakgrove Constr., Inc.,

523 N.E.2d 277, 280 n.3 (N.Y. 1988) (“The protection afforded

by the guarantees of free press and speech in the New York

Constitution is often broader than the minimum required by

the First Amendment.”). This proposition is evident from the

text of both provisions. Compare U.S. Const. amend. I

(“Congress shall make no law . . . abridging the freedom of

speech, or of the press.”), with N.Y. Const. art. I § 8

(“Every citizen may freely speak, write and publish his or

her sentiments on all subjects . . . and no law shall be

passed to restrain or abridge the liberty of speech or of the

press.”). That means that any statute that fails to pass

muster under federal law will fail under the more protective

New York State Constitution.

The First Amendment protects against governmental

intrusion on the right to free speech, including statutory

intrusions. Statutes “may unconstitutionally restrict speech

in one of two primary ways,” the first of which is relevant

here: “a statute may restrict speech based on the content of

that speech.” Field Day, LLC v. Cnty. of Suffolk, 463 F.3d

167, 174 (2d Cir. 2006). Such content-based restrictions on

speech go against the principle that lies “[a]t the heart of

the First Amendment[:] . . . that each person should decide

for him or herself the ideas and beliefs deserving of

expression, consideration, and adherence.” Turner Broad. Sys.

v. F.C.C., 512 U.S. 622, 641 (1994). For that reason, “the

most exacting scrutiny” is used to evaluate the

constitutionality of laws that “suppress, disadvantage, or

impose differential burdens upon speech because of its

content.” Id. at 642. “Most exacting scrutiny,” or “strict

scrutiny,” means that the law must be narrowly tailored to

promote a compelling government interest.2 See John Doe, Inc.

v. Mukasey, 549 F.3d 861, 871 (2d Cir. 2008) (quoting United

States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 813 (2000)).

Plaintiffs challenge Section 90(10) both facially and as

applied, so it is important to distinguish the two types of

challenges. A facial challenge looks to “only the text of the

statute itself, not its application to the particular

2 Plaintiffs also emphasize that the law is a “prior restraint” on speech

because it “prohibit[s] speech before it occurs.” (Plaintiffs’ Brief

at 13.) The Court notes the statute at issue here differs from those

in classic prior-restraint cases. See, e.g., Near v. Minnesota, 283

U.S. 697 (1931) (striking down a statute that allowed the state

attorney general or any citizen to seek an injunction prohibiting a

news publication from publishing certain information); Lovell v. City

of Griffin, 303 U.S. 444 (1938) (holding unconstitutional an ordinance

that prohibited the distribution of pamphlets without a permit); CBS

v. Davis, 510 U.S. 1315 (1994) (staying a circuit court injunction

that prohibited CBS from broadcasting certain footage). The fact

pattern here more closely resembles the challenged law in Landmark

Communications v. Virginia, which required strict confidentiality of

all papers and proceedings before Virginia’s judicial review

commission and that the Supreme Court said “[did] not constitute a

prior restraint.” 435 U.S. 829, 838 (1978). However, because prior

restraints on speech and content-based restrictions on speech are both

subject to strict scrutiny, it is unnecessary to establish whether

Section 90(10) is a prior restraint on speech, as there is no dispute

it is a content-based restriction.

circumstances of an individual.” Field Day, 463 F.3d at 174

(citing City of Lakewood v. Plain Dealer Pub. Co., 486 U.S.

750, 770 n.11 (1988)). On the other hand, an as-applied

challenge “requires an analysis of the facts of a particular

case to determine whether the application of a statute, even

one constitutional on its face, deprived the individual to

whom it was applied of a protected right.” Id.

III. JURISDICTIONAL ISSUES

Before addressing the substantive claims at issue in the

Motion, the Court must assess a few jurisdictional arguments

presented by Defendants, fulfilling a federal court’s

obligation to establish its own jurisdiction before

proceeding to consider the merits of a case.

First, State Defendants and Kearse argue that the Court

should abstain from hearing this case. The Court has already

addressed these arguments in its prior order and explained

why each abstention doctrine is inapplicable to this matter.

See CRC II, 2022 WL 1422852, at *3–7. Similarly, the second

jurisdictional issue stems from City Defendants’ claim that

they are not proper parties to this dispute. The Court already

denied this argument for dismissal in CRC II. See id. at *9–

10.

Kearse next argues that there is no justiciable

controversy and that the Court’s deciding the

constitutionality of Section 90(10) would be equivalent to

issuing an advisory opinion. (See Kearse’s Opposition at 4.)

She makes this argument because “[s]he never told Plaintiffs”

they could not publicly disclose the Grievance Complaints.

(Id.) Similarly, and together comprising the third

jurisdictional issue, City Defendants argue that the case is

not ripe for review. (See City Opposition at 6.)

Federal courts are empowered to hear only live,

definite, and concrete disputes, the resolution of which

would directly impact the interests of the parties before the

Court. See In re Motors Liquidation Co., 829 F.3d 135, 167–

68 (2d Cir. 2016) (detailing the constraints of federal

courts’ jurisdiction). The Court cannot render “an opinion

advising what the law would be upon a hypothetical state of

facts.” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241

(1937). Courts have recognized two ripeness doctrines:

constitutional and prudential. An action is constitutionally

unripe if “plaintiff’s claimed injury, if any, is not ‘actual

or imminent,’ but instead ‘conjectural or hypothetical.’”

National Org. for Marriage, Inc. v. Walsh, 714 F.3d 682, 688

(2d Cir. 2013) (quoting Lujan v. Defs. of Wildlife, 504 U.S.

555, 588 (1992)). Prudential ripeness asks whether the issues

are fit for judicial decision and what hardship withholding

consideration would bring to the parties. See National Org.

for Marriage, 714 F.3d at 691.

Reading the Complaint and all its claims for relief in

full, the Court finds the case is both constitutionally and

prudentially ripe for review. Plaintiffs’ alleged injury is

neither conjectural nor hypothetical, as it has already

occurred. Plaintiffs allege their First Amendment rights were

violated after the following sequence of events: (1) they

filed the Grievance Complaints and published them online, (2)

because of the publication of the Grievance Complaints,

Johnson, then New York City Corporation Counsel, sent

Plaintiffs, and the Grievance Committee, a letter stating

that Plaintiffs had violated New York law, (3) Plaintiffs

felt threatened and harassed by the Johnson Letter, (4) the

Grievance Committee, through Kearse, dismissed Plaintiffs as

complainants, and (5) the parties continued to exchange

correspondence in which neither the Corporation Counsel nor

the Grievance Committee would rescind their comments.

Plaintiffs allege the second, third, and fourth actions in

this sequence were done in retaliation for their exercise of

First Amendment rights. Without prematurely evaluating the

merits of Plaintiffs’ allegations, the Court finds nothing

abstract, conjectural, speculative, or hypothetical about the

injury Plaintiffs allege.

And as for Kearse’s argument that any opinion would be

advisory because she never told Plaintiffs they could not

publish the Grievance Complaints, that statement

misrepresents the alleged injury. It does not matter that

Kearse never told any of the Plaintiffs that they could not

publish their complaints; it does matter that Kearse

allegedly deprived them of complainant status in retaliation

for publishing the complaints. While Plaintiffs may claim

other Defendants directly attempted to block the publication

of the Grievance Complaints, Plaintiffs acted well within the

confines of the Federal Rules of Civil Procedure when they

brought several related claims against multiple Defendants in

one lawsuit. See, e.g., Fed. R. Civ. P. 18 (joinder of

claims); 20 (permissive joinder of parties).

Insofar as Plaintiffs claim they will be subject to

future threats or harassment, the Second Circuit has advised

that “pre-enforcement First Amendment claims” are reviewed

under “somewhat relaxed standing and ripeness rules.”

National Org. for Marriage, 714 F.3d at 689. In these cases,

“a real and imminent fear [that rights will be chilled] is

enough.” Id. (citing Laird v. Tatum, 408 U.S. 1, 13–14

(1972)). Given that Defendants repeatedly sent Plaintiffs

allegedly threatening and harassing letters, several of which

invoked Section 90(10), following Plaintiffs’ publication of

the Grievance Complaints, the Court is persuaded that

Plaintiffs felt a real and imminent fear that their First

Amendment rights would continue to be chilled.

As for prudential standing, the Court finds nothing

about this action that suggests “the case will be better

decided later and that the parties will not have

constitutional rights undermined by the delay.” Simmonds v.

INS, 326 F.3d 351, 357 (2d Cir. 2003). This case is similar

to the type of many cases federal courts adjudicate every day

that ask the Court to determine the constitutionality of a

state statute and whether certain factual circumstances

amount to a violation of law under Section 1983. The Court

sees no compelling reason why a decision on these issues

should be delayed. More importantly, though, parties could

have their constitutional rights undermined by a delay if

Section 90(10) is eventually deemed unconstitutional but the

state continued to enforce the law in the time lapse between

this suit and a subsequent one. Thus, the Court is unpersuaded

that Defendants have shown there is a valid ripeness challenge

in this litigation.

The fourth jurisdictional question raises similar

issues: the State Defendants contest that any claim for public

disclosure of investigative documents lacks ripeness because

Plaintiffs have not sought remedy in the proper

administrative channels. (See State Opposition at 23.) The

Court does not interpret Plaintiffs’ claim at issue in this

motion for partial summary judgment to seek the release of

any investigative documents, and, as such, the Court lacks

the benefit of full argument and briefing on this issue. State

Defendants may renew this argument at a later in stage of the

litigation when the Court evaluates claims that may lead to

the public disclosure of investigative documents.

Fifth, City Defendants argue that the case is not ripe

for review because “plaintiffs seek to enjoin the enforcement

of Judiciary Law § 90(10), but no one has sought or threatened

to enforce the law against them.” (City Opposition at 7.)

This contention demonstrates a misunderstanding of applicable

legal principles. Plaintiffs’ First Amendment claim is that

they were retaliated against after exercising their First

Amendment rights. As detailed below, the alleged retaliatory

acts consisted of (1) Johnson telling the Grievance Committee

that Plaintiffs were acting in violation of state law, an

action that may be viewed as harassing or threatening, and

(2) Kearse rescinding Plaintiffs’ complainant status.

Plaintiffs allege Defendants, including City Defendants, hide

behind the auspice of enforcing Section 90(10) in making these

threats. They seek enjoinment of the law’s enforcement to the

extent that the law is being applied as a weapon to stifle

Plaintiffs’ free speech rights.

Sixth, City Defendants claim Plaintiffs lack standing to

bring suit. To satisfy the requirements of constitutional

standing, a plaintiff must have suffered a concrete,

particularized, actual, and imminent injury-in-fact which was

caused by “the conduct complained of” and will likely be

redressed by a favorable judicial decision. Lujan, 503 U.S.

at 560—61. The Court already has, above, found that Plaintiffs

suffered a concrete and particularized, non-hypothetical

injury, and the Court now finds Plaintiffs easily satisfy the

remaining standing factors as well.

City Defendants do not dispute causation, and the

Court’s discussion of that factor is not difficult.

Plaintiffs’ alleged injury is that their First Amendment

rights were violated when Defendants allegedly retaliated

against them for exercising their constitutional right to

free speech. That alleged injury was directly caused by

Defendants’ actions -- Defendants sent the Johnson Letter,

the Kearse Letter, and subsequent correspondence, plus they

dismissed Plaintiffs from the suit as complainants, and those

actions caused the injury Plaintiffs allege.

City Defendants’ argument for lack of standing largely

relies on the redressability requirement, as they state that

“Plaintiffs simply cannot demonstrate that the City

[D]efendants caused them a redressable injury related to the

alleged enforcement of a law that the City [D]efendants have

no power to interpret or enforce.” (City Opposition at 1.)

This argument, while dressed in different terminology,

duplicates City Defendants’ earlier argument that they should

be dismissed as improper defendants. The Court assessed this

argument at length in CRC II, and it sees no reason to

reevaluate its conclusion from that decision. See CRC II,

2022 WL 1422852, at *9–10. As the Court stated in its prior

Order, a favorable decision would provide Plaintiffs with

redress for their injuries, so Plaintiffs have satisfied

their burden of establishing standing. See id. at *9. The

Court finds it has jurisdiction to decide this lawsuit and

that there are no jurisdictional reasons to dismiss the

Complaint.

IV. SUMMARY JUDGMENT DISCUSSION

Section 90(10) is a content-based restriction on speech,

as it prohibits disclosure of “all papers, records and

documents” specifically related to attorney discipline

proceedings. There is no dispute that the statute, on its

face, “applies to particular speech because of the topic

discussed or the idea or message expressed.” Reed v. Town of

Gilbert, 576 U.S. 155, 163 (2015). That determination means

the law is “presumptively unconstitutional and may be

justified only if the government proves that [the law is]

narrowly tailored to serve compelling state interests.” Id.

This high burden is especially important in cases such as

this one, where the speech at issue relates to the conduct of

government prosecutors. The Supreme Court has repeatedly

stated, “there is practically universal agreement that a

major purpose of [the First] Amendment was to protect the

free discussion of governmental affairs.” Landmark Commc’ns

v. Virginia, 435 U.S. 829, 838 (1978) (quoting Mills v.

Alabama, 384 U.S. 214, 218 (1966)).

As the Second Circuit recently noted, “[f]acial

challenges are disfavored,” so “it is a proper exercise of

judicial restraint for courts to adjudicate as-applied

challenges before facial ones in an effort to decide

constitutional attacks on the narrowest possible grounds and

to avoid reaching unnecessary constitutional issues.” Kane v.

De Blasio, 19 F.4th 152, 174 (2d Cir. 2021) (modification in

original) (quotations omitted). With that in mind, the Court

begins by assessing the as-applied challenge and determining

whether Section 90(10)’s publication prohibitions are

narrowly tailored to serve a compelling government interest.

A. Section 90(10) Is Unconstitutional As Applied to

Plaintiffs’ Case

In this case, an as-applied challenge means this Court

is tasked with determining the constitutionality of Section

90(10)’s prohibition on (1) the publication of attorney

grievance complaints by the private individuals who filed the

complaints, and (2) the publication of correspondence related

to grievance complaints or Grievance Committee business by

the private recipients of that correspondence, as those are

the two factual circumstances in which Section 90(10) applies

here. Each prohibition must be narrowly tailored to support

a compelling government interest.

1. Grievance Complaints

When Johnson, as Corporation Counsel of the City of New

York, wrote to the Grievance Committee to inform it of

Plaintiffs’ publication of the Grievance Complaints, he

specifically wrote, “As you know, New York State Judiciary

Law § 90(10) designates attorney disciplinary records --

including the complaint -- private and confidential.”

(Johnson Letter at 2 (emphasis added).) However, in their

opposition to Plaintiffs’ Motion, Defendants have seemingly

conceded that Section 90(10) does not prohibit complainants’

publication of their own grievance complaints. The State

Defendants’ Opposition and Kearse’s Opposition both directly

say that a party is free to publish its own grievance

complaints under Section 90(10). (See Kearse’s Opposition at

4; State Opposition at 2.)3 This means, at minimum, that

Johnson purported to enforce Section 90(10) while clearly

acting outside the law’s bounds.

State Defendants spill much ink examining the text of

Section 90(10) to explain why the statute does not prohibit

the publication of grievance complaints, all of which may be

relevant when evaluating a facial challenge to the statute.

In an as-applied challenge, however, the Court’s inquiry

concerns “the facts of [the] particular case” and “whether

the application of a statute, even one constitutional on its

face, deprived the individual to whom it was applied of a

protected right.” Field Day, 463 F.3d at 174. Under this

doctrine the Court is concerned with the application of the

statute rather than its text.

A concession that the text of Section 90(10) does not

prohibit the publishing of grievance complaints does not

resolve the concern that the New York City Corporation Counsel

sought to halt and punish the publication of the grievance

complaints under the auspice of upholding Section 90(10). The

Johnson Letter is quite clear that the Corporation Counsel

3 Despite Plaintiffs’ clear statements that they were moving only for

partial summary judgment on the issue of Section 90(10)’s

constitutionality, City Defendants’ Opposition completely fails to

respond to the challenges to Section 90(10)’s constitutionality,

instead addressing jurisdictional issues (some of which the Court has

previously decided in CRC II) and discussing claims that are not at

issue in the instant motion.

believed -- or at least asserted – that the publication of

Plaintiffs’ grievance complaints contravened Section 90(10)’s

confidentiality provisions and that the Grievance Committee

should be aware of this alleged illegal act. And Plaintiffs’

as-applied challenge focuses on that action -- they ask the

Court to determine whether Section 90(10) was enforced

against them in violation of their First Amendment rights.

The Court concludes that if Section 90(10) is being used

to block Plaintiffs’ publication of their own grievance

complaints, the statute is being applied in an

unconstitutional manner. The Second Circuit has already so

suggested. In Kamasinski v. Judicial Review Council, the

Second Circuit noted that Section 90(10) could apply to three

different categories of information that individuals may want

to disclose: (1) “the substance of an individual’s complaint

or testimony;” (2) “the complainant’s disclosure of the fact

that a complaint was filed, or a witness’s disclose of the

fact that testimony was given;” and (3) “information that an

individual learns by interacting with the [Judicial Review

Council].” 44 F.3d 106, 110 (2d Cir. 1994). While, unlike

this case, the facts in Kamasinski did not involve the first

category, the Court continued to note,

Whether the state may prohibit the disclosure of the

substance of an individual’s complaint or testimony

merits little discussion. Penalizing an individual for

publicly disclosing complaints about the conduct of a

government official strikes at the heart of the First

Amendment, and we agree with the district court that

such a prohibition would be unconstitutional.

Id. (citing Mills, 384 U.S. at 218–19).

The situation contemplated in Kamasinski is exactly what

unfolded here. There is no genuine factual dispute that

Johnson wrote to the Grievance Committee expressing concern

that Plaintiffs published the Grievance Complaints in

violation of Section 90(10). In other words, a government

official used Section 90(10) in an effort to prohibit the

publication of grievance complaints publicly filed by the

complainants themselves, an action this Court finds contrary

to the First Amendment.

Whether Johnson intended to penalize Plaintiffs with

that action is a question for resolution at a later stage of

this litigation, as all that matters in the motion for partial

summary judgment now before the Court is whether Section

90(10) is unconstitutional as applied to the facts at issue

in this case. Here, the uncontroverted facts and Second

Circuit precedent show that Section 90(10) was applied in an

unconstitutional manner. The First Amendment prohibits a

state from banning complainants from publishing their own

attorney grievance complaints.

2. Correspondence Related to Complaints

Plaintiffs’ as-applied challenge is not limited to the

publication of the Grievance Complaints, as Defendants also

invoked Section 90(10) in an effort to bar Plaintiffs from

publicizing the Johnson Letter and subsequent

correspondence.4 Plaintiffs challenge that application of the

statute, and also any future government attempts to prohibit

the publication of information related to the Grievance

Complaints. Thus, the question before the Court is whether a

state prohibiting individuals from publishing correspondence

and documents related to a grievance complaint would violate

the First Amendment.

This challenge concerns the other two types of

information that the Kamasinski court described, broadly

categorized as (1) facts related to the mere existence of an

investigation, complaint, or testimony and (2) information

learned from correspondence with the body investigating the

complaints (here, the Grievance Committee). To assess whether

prohibition on disclosure of information in these categories

4 The Johnson Letter includes a footnote stating, “[T]his letter is sent

in response to specific grievances and, thus, is private and

confidential under Judiciary Law 90(10). As such, any disclosure of this

letter by complainants without proper court permission would be unlawful

under the Judiciary Law.” (Johnson Letter at 3 n.4.) The Kearse Letter

is marked “personal and confidential.” (Kearse Letter at 1.) The parties

disagree about whether that label meant the letter was to be kept

confidential pursuant to Section 90(10), which uses the term “private

and confidential.”

violates the First Amendment, the Court must “balance

[Plaintiffs’] asserted First Amendment rights against [the

Government’s] interests in preserving the confidentiality” of

its attorney grievance proceedings. Butterworth v. Smith, 494

U.S. 624, 630 (1990); see also Kamasinski, 44 F.3d 110–11;

Landmark Commc’ns, 435 U.S. at 841.

Because this inquiry entails a content-based regulation

of speech, in balancing those interests the Court uses strict

scrutiny to weigh the scales. In content-based First

Amendment cases, it is well settled that the Government bears

the burden of showing a law is narrowly tailored to support

a compelling government interest. See, e.g., Playboy Entm’t

Grp., 529 U.S. at 817. Yet, while Plaintiffs devote a

considerable portion of the Motion explaining why Section

90(10) cannot survive strict scrutiny (see Plaintiffs’ Brief

at 15–22), Defendants do not make any attempt to rebut the

presumption of unconstitutionality that attaches to a

content-based restriction on speech. Again, they instead

argue that the statute, on its face, does not proscribe the

publication of these materials. But, once again, even “the

application of a facially neutral law so as to discriminate

against certain speakers or idea[s] violates the First

Amendment.” Field Day, 463 F.3d at 193.

The Court notes that Section 90(10) is not facially

neutral.5 On its face, it imposes content-based restrictions.

Defendants argue, however, that the law is constitutional on

its face because the actions underlying the dispute here fall

outside the bounds of Section 90(10) and the statute does not

prevent the disclosure of the materials at issue. The trouble

with this argument is that the Corporation Counsel, on behalf

of the City of New York, repeatedly invoked and attempted to

enforce Section 90(10) in the exact situations in which State

Defendants (the only defendant group to make any arguments

regarding the constitutionality of Section 90(10)) say the

law does not apply. So, much like the above discussion

regarding the publication of grievance complaints, the

textualist analysis is irrelevant in the as-applied

challenge. Even if the law, on its face, would allow the

publication of the Johnson Letter and subsequent

correspondence, here Section 90(10) is being used by

government officials to stifle that speech.

Because no defendant attempted to explain why this

limitation on speech was narrowly tailored to meet a

compelling government interest, Defendants did not carry

their burden of satisfying strict scrutiny. The only

5 Despite this difference, the Court cites Field Day to highlight the

distinction between facial and as-applied challenges to statutes.

government interests the Court is able to identify from the

opposition papers are “broad-based privacy interests” that

“require that these documents remain confidential and sealed

from public disclosure.” (State Opposition at 26.) State

Defendants do not elaborate on that interest -- a far cry

from the detailed interests that justified upholding the

confidentiality of judicial misconduct proceedings in

Kamasinski. See Kamasinski, 44 F.3d at 109–10. The Court also

notes that the Second Circuit has specified that the interests

in Kamasinski “inhere in the nature of judicial misconduct

proceedings,” and are thus not immediately applicable to

attorney grievance proceedings. John Doe v. Mukasey, 549 F.2d

861, 877 (2d Cir 2008).

The Court recognizes that there may be valid and

important, and perhaps even compelling, government interests

in maintaining confidentiality in some aspects of attorney

grievance proceedings. But even if Defendants had clearly

articulated those interests, they did not make any showing

that the application of Section 90(10) to block the

publication of the correspondence at issue from government

officials was narrowly tailored to achieve those interests.

“A law is not narrowly tailored if a less restrictive

alternative would serve the same interests.” Open Soc’y

Justice Initiative v. Trump, 510 F. Supp. 3d 198, 211

(S.D.N.Y. 2021) (citing Playboy Entm’t Grp., 529 U.S. at 813).

The Court need not craft a less restrictive alternative to

Section 90(10) because State Defendants’ Opposition presents

one: the law bars only Grievance Committee members, staff,

and their agents from disclosing information related to

proceedings. Thus, the statute does not apply to complainants

or members of the general public.6 (See State Opposition at

6.)

Looking only at the facts of the case before the Court,

government officials of the State and City of New York applied

Section 90(10) to prohibit Plaintiffs from sharing at least

one letter they received regarding their Grievance

Complaints. That action infringed on Plaintiffs’ First

Amendment right to freedom of speech in the name of upholding

a governmental interest in keeping attorney discipline

proceedings confidential. But because less-restrictive

alternatives exist and Section 90(10), as it was applied to

6 In perhaps their closest effort to identifying a compelling government

interest furthered by the application of Section 90(10), State

Defendants argue that eliminating the entire confidentiality provision

of Section 90(10) would put confidential information, such as witness

statements, financial records, privileged documents, and medical

information, at risk of disclosure. (See State Opposition at 26.) The

Court does not question the importance of the State’s interest in keeping

such information confidential, but no such information was contained in

the documents for which Section 90(10)’s confidentiality provision was

invoked against Plaintiffs, rendering the concern inapplicable in the

as-applied challenge. Further, in a facial challenge to the statute,

this asserted interest raises serious doubts about whether the statute

is narrowly tailored, as Section 90(10) prohibits the disclosure of “all

papers, records and documents,” not just those containing legitimately

confidential or sensitive information.

the facts of this case, is not narrowly tailored to a

government interest in maintaining the confidentiality of

attorney grievance proceedings, Plaintiffs’ First Amendment

right to publish the letters they received and similar

correspondence not containing indisputably confidential or

sensitive information outweighs the government’s interest in

confidentiality. This Court is unconvinced that the First

Amendment allows the government to broadly prevent

complainants, such as the Law Professors, from publicly

sharing any and all correspondence, communication, or

documents related to their own grievance complaints.

To the extent that Section 90(10) is being used to

prohibit complainants from publicly sharing “papers, records

and documents” related to that complainant’s own grievance

complaint related to attorney discipline, the law’s

confidentiality provision violates the First Amendment of the

United States Constitution. Because Article I, Section 8 of

the New York Constitution is even more protective of free

speech, such applications of Section 90(10) also violate the

New York State Constitution.

B. Section 90(10)’s Constitutionality on its Face

Because the Court has found that the challenged statute

is unconstitutional as it was applied to Plaintiffs’ case,

the Court declines to determine the constitutionality of the

statute on its face. See Kane, 19 F.4th at 174 (describing

such decisions as a proper exercise of judicial restraint);

United States v. Grace, 461 U.S. 171, 175 (1983) (noting the

Court would only address whether a statute was

unconstitutional under the facts of the case at hand despite

a facial challenge to the statute). Accordingly, Plaintiffs’

Motion for partial summary judgment is GRANTED in part and

DENIED in part. The Motion is granted as to Plaintiffs’ as-

applied challenge to Section 90(10) as a violation the First

Amendment of the United States Constitution and Article I,

Section 8 of the New York State Constitution as-applied. The

Motion is denied as to Plaintiffs’ facial challenge to Section

90(10), as the Court finds it imprudent and unnecessary to

the disposition of this case to determine the

constitutionality of Section 90(10) in circumstances

factually different from those at issue here.

IV. MOTION TO DISMISS LEGAL STANDARD

Having decided that Section 90(10) is unconstitutional

as applied to the facts of this case, the Court now turns to

the remaining issues raised by Defendants’ motions to

dismiss, beginning with the applicable legal standard. Unlike

the above discussion regarding the motion for summary

judgment, the Court’s review of the motions to dismiss is

limited 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).

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.

V. MOTION TO DISMISS DISCUSSION

In CRC II, the Court reserved decision on two issues

from City Defendants’ Motion to Dismiss because both relied

on a determination of the constitutional question regarding

Section 90(10). First, City Defendants moved for dismissal

under Rule 12(b)(6), arguing that Plaintiffs failed to state

a claim for First Amendment retaliation. (See City

Defendants’ Motion to Dismiss at 2.) Second, City Defendants

argue that, even if Plaintiffs did state a claim for relief,

the Complaint should be dismissed because City Defendants are

entitled to qualified immunity. (See City Defendants’ Motion

to Dismiss at 3 n.2.) Kearse joined the qualified immunity

argument, and separately moved for dismissal for failure to

state a claim. (See Kearse’s Motion to Dismiss at 3–4.)

A. FAILURE TO STATE A CLAIM

City Defendants argue Plaintiffs failed to adequately

allege that (1) their publication of the Grievance Complaints

was protected speech; and (2) that City Defendants took

adverse action against them. (See City Defendants’ Motion to

Dismiss at 2–3.) Both of these circumstances, along with a

showing of a causal connection between the protected speech

and the adverse action, are necessary elements of a First

Amendment retaliation claim. See Matthews v. City of New York,

779 F.3d 167, 172 (2d Cir. 2015).

Plaintiffs’ Complaint easily satisfies the first

element. As the Court has explained above, Plaintiffs had a

constitutionally protected right to publish their own

Grievance Complaints. They were private individuals

exercising their First Amendment right to free speech, and no

statute or law validly prohibited that exercise of speech.

The Complaint alleges Plaintiffs published the Grievance

Complaints, or, in other words, that they engaged in protected

speech. That allegation is sufficient to satisfy Plaintiffs’

burden on a motion to dismiss.

As for the second element, not every negative

governmental disciplinary or retaliatory measure constitutes

an adverse action, as the burden imposed by some retaliatory

acts may be minimal. An “adverse action” in First Amendment

retaliation cases is “conduct that would deter a similarly

situated individual of ordinary firmness from exercising his

or her constitutional rights.” United States v. N.Y.C. Dep’t

of Educ., 407 F. Supp. 3d 365, 410 (S.D.N.Y. 2018) (quoting

Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 225 (2d Cir.

2006)). The Second Circuit has highlighted that the question

of whether retaliatory conduct amounts to an adverse action

is a context-specific inquiry that “must be tailored to the

different circumstances in which retaliation claims arise.”

Dawes v. Walker, 239 F.3d 489, 493 (2d Cir. 2001) (internal

quotations omitted), overruled on other grounds, Swierkiewicz

v. Sorema N.A., 534 U.S. 506 (2002). For example, certain

groups, like public employees, “may be required to tolerate

more than average citizens” in deciding whether a retaliatory

act is adverse. Id.

The alleged retaliatory acts here entail (1) City

Defendants sending letters to the Grievance Committee stating

that Plaintiffs were violating Section 90(10) and, allegedly,

threatening Plaintiffs; and (2) Kearse and the Grievance

Committee removing Plaintiffs as grievance complainants and

denying them the benefits accorded to individuals who file

attorney grievance complaints. (See Complaint ¶¶ 55–75.) The

Court finds that these alleged retaliatory acts constitute

adverse actions sufficient to support a claim for First

Amendment retaliation. The Court is persuaded that

individuals of ordinary firmness would be deterred from

exercising their constitutional right to publish their own

grievance complaints if they knew that exercise could result

in losing their status as complainants or being charged with

violating the law and potentially being subjected to

consequential legal proceedings. The Court is persuaded that

attorneys of ordinary firmness would be deterred from

publishing grievance complaints if they knew that publication

would lead to a government official informing the Grievance

Committee that they were violating New York law, possibly

risking their status as attorneys in good standing.

The Court finds that Plaintiffs have adequately alleged

that they engaged in constitutionally protected speech and

that they were subjected to adverse action as a result of

engaging in that speech. Because Defendants do not challenge

Plaintiffs’ satisfaction of the third element of a prima facie

case of First Amendment retaliation, the Court finds

Plaintiffs have stated a claim for relief. City Defendants’

motion to dismiss for failure to state a claim is denied.

Kearse moved the Court to dismiss the Complaint for

failure to state a claim, arguing that Plaintiffs failed to

show she violated their First Amendment rights because the

Complaint states Defendants “engag[ed] in an ongoing effort

to harass, threaten, and punish” Plaintiffs and “neither of

Kearse’s two letters to Plaintiffs did anything of the sort.”

(Kearse’s Motion to Dismiss at 3–4.) Kearse’s argument is

premised entirely on a question of fact that the Court is

unable to resolve at this stage in the proceeding. The Court

has already determined, above, that Plaintiffs adequately

alleged they were subjected to adverse actions in retaliation

for their exercise of their First Amendment rights. A motion

to dismiss pursuant to Rule 12(b)(6) is not the proper

occasion for the Court to weigh differing interpretations of

an exhibit to the Complaint, as the Court, in evaluating Rule

12(b)(6) motions is bound to “accept the factual allegations

set forth in the complaint as true and draw all reasonable

inferences in favor of the plaintiff.” Ebomwonyi v. Sea

Shipping Line, 473 F. Supp. 3d 338, 344 (S.D.N.Y. 2020).

Kearse’s motion to dismiss for failure to state a claim is

also denied.

B. QUALIFIED IMMUNITY

The last argument City Defendants, joined by Kearse,

present is that the Complaint should be dismissed because,

even if their actions constituted a constitutional violation,

they are entitled to qualified immunity.7 The Court finds this

argument unpersuasive.

Government officers acting under the color of state law

are entitled to qualified immunity for actions taken in the

course of performing official duties if they did not violate

a clearly established constitutional or statutory right,

meaning that a reasonable public officer would not have known

that, at the time of the offending action, such conduct

constituted a violation of law by depriving an individual of

a clearly established statutory or constitutional right. See

White v. Pauly, 137 S. Ct. 548, 551 (2017). The Supreme Court

7 The Court notes that Defendants assert a qualified immunity defense only

over Plaintiffs’ First Amendment retaliation claim.

“does not require a case directly on point for a right to be

clearly established, [but] existing precedent must have

placed the statutory or constitutional question beyond

debate.” Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 7–8

(2021) (quoting White, 137 S. Ct. at 551).

As the Court recounted above, the Second Circuit, in

1994, noted that “[w]hether the state may prohibit the

disclosure of the substance of an individual’s complaint or

testimony merits little discussion. Penalizing an individual

for publicly disclosing complaints about the conduct of a

government official strikes at the heart of the First

Amendment, and we agree . . . that such a prohibition would

be unconstitutional.” Kamasinski, 44 F.3d at 110. That

statement constitutes an unequivocal declaration that there

is little merit in the argument that a state may prevent

individuals who file attorney grievance complaints from

publicly disclosing such complaints.

In 2021, when the events giving rise to the Complaint

occurred, a reasonable government officer should have been

aware that punishing private individuals for publishing their

own grievance complaints runs afoul of the First Amendment.

It is especially true that three high-ranking legal officers

of the State and City of New York –- the Corporation Counsel,

the Queens County District Attorney, and the Chief Counsel to

the Grievance Committee -- would have known that, under the

First Amendment, attorney grievance complainants are free to

publicly publish their own complaints. The First Amendment

and applicable doctrine under Kamasinski clearly established

that right. Thus, Defendants are not entitled to qualified

immunity for the adverse actions at issue here. City

Defendants’ and Kearse’s Motions to Dismiss Plaintiffs’

complaint on this basis are denied.

VI. ORDER

For the reasons stated above, 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 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; 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; and it is further

ORDERED that the motion filed by Plaintiffs for partial

summary judgment (Dkt. No. 63) is GRANTED IN PART. The motion

is granted insofar as it seeks summary judgment on Plaintiffs’

as-applied constitutional challenge.

Defendants are hereby ORDERED to file their answer to

the remaining claims brought in the Complaint within twenty-

one days of the date of this Order.

SO ORDERED.

Dated: New York, New York

13 June 2022

Victor Marrero

U.S,

40