Appendix — Graseck v. Middlemiss
Supreme Court brief1979
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FILED
NOV 6
3 IN THE 7
SUPREME COURT OF THE UNTTEDUEMBRURCRIDAK, JR, CLERK
December Term, 1978 : ‘i
No. Y8-859
7
ARTHUR V. GRASECK, JR.,
Plaintiff-Petitioner,
- against -
County;
Defendants,
JOHN F. MIDDLEMISS, JR., Individually and
as Attorney-in-Charge, Legal Aid Society
of Suffolx County, New York,
Defendant-Respondent,
cTn
TELLO, Individually and as Attorney-
Di ourt Bureau of the
e Legal Aid Society
fol: County, New
Defendant,
LEGAL AID SOCIETY of Suffolk County, New
York, i
Defendant~-Respondent.
Att 2a DTCs TO
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Ce C. o> ae
erry Roa
llauppause, New York 11787
ARTHUR V._GRASECK, JR.
Nf Counsel ance
Attorneys for Petitioner
TABLE OF CONTENTS
2. 4
Page
APPENDIX A: sf |
Opinion of the United States ton
- Court of Appeals for the mE Me
Second Gircuit ........ AL 38
APPENDIX B:
inion of the United States
District Court for the
Eastern District of New York, Pi
Jacob Mishler, Chief Judge . . Bl. -. 55
APPENDIX C:
Judgment of the United States
Court of Appeals ran the i
BOGCUG GESCULe “sc 6 ee oe « Clla)-2(b)
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App. Al
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
No. 920 - September Term, 1977
(Argued March 31, 1978 Decided August 7, 1978)
Docket No. 77-7572 oa
Arthur V. Graseck, Jr., |
Plaintiff-Appellant,
Ve
Angelo Mauceri, individually and as
Administrative Judge of the District
Court of Suffolk County; Edward U.
Green, Jr., individually and as a
Judge of the District Court of
Suffolk County,
Defendants,
f John F. Middlemiss, Jr., individually
| and as Attorney-in-Charge, Legal Aid
Society of Suffolk County, New York,
Defendant~-Appellee,
: Ralph Costello, individually and as
Attorney-in-Charge of the District
Court Bureau of the Criminal Division
of the Legal Aid Society of Suffolk
) County, New York,
| Defendant,
Legal Aid Society of Suffolk County,
New York,
! Defendant-Appellee.
App. A2’
Before FEINBERG, MANSFIELD and OAKES,
Circuit Judges.
Appeal from dismissal of a 42 U.S.C.
§1983 action by the United States District
Court for the Eastern District of New York,
Jacob Mishler, Chief Judge, holding inter
alia that aripellees had not acted under color
of state law, thus depriving the court) of .
subject matter jurisdiction.
Affirmed.
Frederick J. Damski, New York
Civil Liberties Union, Smith-
town, N.Y. (Harlon L. Dalton,
Burt Neuborne, Arthur V.
Graseck, Jr., of counsel),
for Appellant.
Joseph P. Hoey, Brady, Tarpey,
Hoey, P.C., New York, N.Y.,
for Appellees John F. Middlemiss,
Jr., and Legal Aid Society of
Suffolk County, New York.
OAKES, Circuit Judge:
This appeal requires us to determine
whether conduct of a fundamentally private
institution challenged on constitutional
grounds constitutes "state action", one of
the more slippery and troublesome areas of
App. A3
civil rights litigation. =e brought
suit under 42 U.S.C. §1983° and its juris-
dictional counterpart, 28 U.S.C. §1343,
alleging that his discharge by the Legal Aid
Society of Suffolk County, New York (the
Society), violated the First,’ Sixth and Four-
teenth Amendments. He sought a declaratory
judgment, reinstatement and back pay. The
United States District Court for the Eastern
District of New York, Jacob Mishler, Chief
1/ = It provides:
Every person who, under color of
any statute, ordinance, regulation,
custom, or usage, of any State or
Territory, subjects, or causes to be
subjected, any citizen of the United
States or other person within the
jurisdiction thereof to the deprivation
of any rights, privileges, or immunities
secured by the Constitution and laws,
shall be liable to the party injured
in an action at law, el 9 in equity,
or other proper proceeding for redress.
42.U.S.C. §1983,
App. A4 2/
Judge, dismissed the complaint after a
bench trial,= holding that appellees: had
not acted under color of state vay,
Graseck v. Mauceri, No. 74-C-1157 (E.D.N.Y.,
*. ‘
2/ Defendants Middlemiss and Legal
a Aid were dismissed at this time. Prior
to the trial before Chief Judge Mishler,
the case was heard by Judge Weinstein,
who at the close of that trial dismissed
the complaint against defendants Mauceri,
Green and Costello. , Pursuant to the
remaining defendants' request, Judge
Weinstein then recused himself. There-
after the case was reassigned to Chief
Judge Mishler. Appellant's appeal is
limited to the dismissal of Middlemiss
and Legal Aid.
3/ The case was tried de novo before
m1 Chief Judge Mishler, although the trans-
cript from the earlier trial, see note 1
supra, was admitted into evidence.
4 / The district court alternatively
re concluded that the discharge did not
abridge any constitutional guarantee.
It is unnecessary to address this
holding.
a ' |
he tate ee oe ow 4 Oe ee
App. Ad
dated Oct. 28, 1977). Since we agree that
the Society's discharge of appellant did not
constitute state atten we affirm.
I. FACTS
Arthur Graseck began working for Legal
Aid as a staff attorney on July 12, 1971,
and was assigned to the District Court Bureau
of the Criminal Division in Hauppauge, Long
Island. Following a number of incidents
detailed below, he was discharged by his
supervisor, John Middlemiss~” on October 13,
7/
1972, after he refused to resign. On
5/ The "under color of state law"
a prerequisite of §1983 is synonymous
with the state action requirement of
the Fourteenth Amendment as first
explicated in Civil Rights Cases, 109
U.S. 3 (1883). Adickes Vv. S.-H. Kress
& Co., 398 U.S. 144, 15Z2 n./7 (19/0);
United States v. Price, 383 U.S. 787,
n. e terms are ysed
interchangeably throughout our dis-
cussion.
6/ Middlemiss was attorney-in-charge
of Suffolk Legal Aid during Graseck's
employment.
7/ Middlemiss discussed the reasons
nt for the discharge in a 45-minute meet-
ing with appellant. He dismissed Graseck
when it became apparent that appellant
could not adequately explain the numerous
App. A6
November 15, the Personnel Committee of the
Society held a hearing to review appellant's
iiicladia aida Wraaiaitanies appellant's charge
that judicial pressure provoked the decision.
The committee upheld the emkeust did
the Society's board of directors on January 24,
10/
1973.
7/ Cont.
incidents culminating in the dismissal.
Prior to the meeting, Middlemiss and
Ralph Costello, attorney-in-charge of
the District Court Bureau for the last
six to eight weeks of appellant's
employment, had agreed upon the need
to dismiss Graseck.
8 / The meeting was divided into three
7 stages. The first was a session open to
the public during which civil rights and
social service organizations and former
clients of oe ang on his behalf,
A closed session was then conducted with
the committee's five members, Costello,
Middlemiss, Lebar and Thomas Boyle,
| attorney-in-charge of the District Court
Bureau Seep most of appellant's employ-
ment. In this private meeting the four
attorneys presented their positions,
appellant submitted exhibits, and Boyle
spoke on Graseck's behalf.
| 9/ The vote was four to one.
ee ee ee eee
i Ee a i a a et A Se
OC BABEL EAA ute
App. A7
The district court found that appellant
was discharged due to his inability to work
with colleagues and to follow established
rules, his repeated exercise of poor judgment,
and his continual absence from astlghed areas.
In other words, Graseck was asked to resign
because his conduct over the course of the
year disrupted the efficient operation'of :
the Society. These were substantially the «
reasons proffered by Middlemiss and concerto”
The events which culminated in the dismissal
must be explored at some length in order
fully to appreciate Chief Judge Mishler's
conclusion that the discharge, far from being
a reaction to judicial pressure resulted from
the independent managerial decision of the
Society.
10/ Appellant was neither informed of
“nor present at this meeting.
11/ He replaced Thomas Boyle as attorney-
in-charge of the District Court Bureau
after Boyle transferred to the Riverhead
office.
ee 5 ee ee
Pe eee eae | wee ren eee
ae
App. A8
According to the district court, Graseck's
inability to work with other staff attorneys
stemmed from his repeated interference with
their clients. For example, a heated argu-
ment between.appellant and a Ms. Mottenburg
ensued after he took her client's file without
informing her. When the case was called, no
Ore answered and a bench warrant was issued
for the client's arrest. Similarly, on at.
least three other occasions, without consulting
assigned counsel, he induced their clients
either not to plead guilty after a contrary
decision had been made or to withdraw their
pleas. This conduct, however much it may
have aided the individual client, obviously
created tension and friction between appellant
and his co-workers.
_ The district court referred to three
incidents to support its finding that "(p)lain-
tiff's overwhelming desire to protect and
defend his assigned clients often led him to
exercise poor judgment and to deviate from
established standards of conduct. This
App. A9
weakness particularly emerged in his relations
with the judges of the District Court."
Graseck v. Mauceri, supra, No. 74-C-1157, at
Se ae ee
8. Two of the incidents, involving confronta-
tions with state judges, form the basis. of
appellant's assertion that his dismissal dir-
ectly resulted from the Society's inability
to withstand the pressure imposed by these.
judges, and hence was "state action." The..
first occurred in Fébruary, 1972. After a
presiding judge in a criminal trial denied
appellant's request for production of certain
police records, Judge Mauceri, the administra-
tive judge of the district court, denied a
subpoena duces tecum. Appellant then un-
successfully presented the subpoena to a
third judge, without disclosing the previous
denials. Thereafter Graseck, again without
revealing the previous denials, asked another
staff attorney to submit the subpoena to a
fourth judge, who signed the subpoena. Upon
discovering what he considered to be improper
App. ALO
conduct, Judge Mauceri suggested to Thomas
Boyle, the attorney-in-charge of the District
Court Burearu at that time, that Graseck be
transferred from the Bureau. Boyle consulted
with Middlemiss, and they agreed that a transfer
"would constitute ‘a submission by the Society.
to the authority of the court in a matter
which solely concerned the Society." Id.
at 9-10. Accordingly, they did not succumb:
to the judge's suggestion. Shortly thereafter,
Judge Mauceri explained in a transcribed ~
meeting with Boyle and appellant:
As far as your practice, I don't
want you to limit yourself or your
ability to defend the clients the wa
ou see fit. I don't intend to do that
ut 4g have to do it within the purview
of the rules and regulations of ethics.
Every lawyer is bound by it, not only
you but everyone, whether it be a private
attorney or one working for the State
as you are.
The judge warned appellant that he would
refer the matter to the Character Committee
of the Bar Association if Graseck engaged in
similar conduct in the future. He ended the
App. All
meeting on an optimistic mote, however,
Stating: "I hope this is the end of it",
The second run-in with the judiciary
occurred in late September, 1972, when appel-
lant moved to dismiss a misdemeanox ‘ase for
failure to prosecute. In the affirmation
accompanying the motion, he accused Judge
Green of being an agent of the district
attorney, endeavoring to accommodate the ;
People's desires at the cost of the defendant's
constitutional and statutory rights. When
the judge learned of the charges he requested
a conference with appellant and Seatelie a”
There is conflicting testimony as to the
message Judge Green conveyed at the meeting.
According to appellant, the judge banned
him from further appearances in his courtroom.
Judge Green recalled having instructed
12/ After the meeting, Costello
criticized appellant for the language
used in the affirmation and reported
the incident to Middlemiss.
App. Al2
appellant to ask for the former's disquali-
fication in any future case in which appellant
feared bias. That Graseck did appear before
the judge subsequent to the conference was
supported by*Judge Green's testimony and
documentary evidence. Judge Green also
testified that he never intended to prompt
Graseck's dismissal by requesting the con-
ference. The district court accepted Judge
Green's version of the discussion. The
evidence supports this finding.
The third episode which, according to
the district court, revealed appellant's
poor judgment and was a factor underlying
Middlemiss's decision to seek Graseck's
dismissal, involved Graseck's attempt to bring
and Article 78 proceeding against a trial judge.
His purpose was to compel the judge to indicate
in the records that a trial had been adjourned
because of the prosecutor's lack of readiness
rather than court congestion. After Graseck
filed the papers at the Supreme Court in
App. Al3
Riverhead, and an official there informed
Middlemiss of Graseck's action, Middlemiss
ordered appellant to stop pursuit of the
action and to return to the district court.
Evidently, Middlemiss was irritated by-”
Graseck's recurring crusades for his clients
which often precluded his availability for
more routine matters. ag 3
Chief Judge Mishler found three afiditional
incidents revelatory of appellant's inability
to follow established rules. The most criti-
cal, for purposes of deciding the state action
issue, involved a second confrontation with
Judge Mauceri. On October 12, 1972, appellant
left a ball point pen with a client during a
visit in the holding pen. Upon discovery,
a guard prohibited appellant from entering
the holding pen and informed Judge Mauceri of
the security considerations involved. Whether
the security personnel had previously given
instructions never to leave such instruments
with detainees because of their potential use
App. Al4
as weapons is in dispute. Judge Mauceri
issued an order barring Graseck from entering
the holding pen, telephoned Middlemiss to
apprise him of the order and then sent
Middlemiss written confirmation of his deci-
sion. What was said during the telephone
conversation is also disputed. Boyle
testified" that Middlemiss told him that
Mauceri had stated, "You have got to get’ this
guy out of my court." Trial Transcript at
1-70. Middlemiss and Mauceri denied that.
13/ The letter stated: -
One of your attorneys, Mr. Grasseck
sic , committed a very serious offense
this morning while visiting a’prisoner
in the cellblock without the knowledge
of the security man. He gave to that
"aegis a fountain pen, which could
e used as a weapon. This is a serious
breach of secuirty and I have issued an
order today barring Mr. Grasseck from the
cellblock area.
I think that your office should
advise this man of the seriousness of
his action so that he does not repeat
it at any other location.
Letter from Administrative Judge Angelo
Mauceri to John F. Middlemiss, Jr.
(Oct. 12, 1972).
App. ALS
any such statement was made. Judge Mauceri
also denied having intended to pressure the
Society into dismissing appellant or even
having contemplated the possibility of
diiniacig
Judge Maucert was not the only person
who objected to appellant's practices.
Appellant was prohibited by an assistant
district attorney from entering the district
attorney's office without accompaniment after
Graseck was discovered one day rummaging
through the office's files after 5:00 p.m.
And Middlemiss revealed that appellant had
loaned to outsiders minutes of Legal Aid
cases on several occasions without the re-
quisite approval.
14/ Boyle resigned from Suffolk Legal
Aid in protest over Graseck's dismissal.
15/ To Middlemiss's knowledge, Graseck's
was the first and only dismissal of a
staff attorney in the Society's history.
/
App. Al6
The district court lastly found that
complaints received by Costello almost on a
daily basis about Graseck's absence from
his assigned part played a role in the Society's
decision to seek his removal. Although these
0" PR.
continual absences were caused by appellant's
good faith attempts to aid his clients, they
disrupted the organizational framework of the
Society and often shifted appellant's workload
onto the shoulders of his already overburdened
colleagues.
The district court's findings regarding
the events underlying the dismissal decision
are not clearly erroneous and find support
in the record. The question presented for
review then, simply stated, is whether the
judicial criticism of appellant together
with the working relationship between the
Society and the state judges constituted
sufficient state involvement in the dismissal
as to constitute "state action."
App. Al7
II. DISCUSSION
A prerequisite for any relief under
sedtion 1983, of course, is that the defendant
have acted under color of state law. See notes
1&5 supra. - There is no ate tee: over 167
Society's Sindementelly private nature.
Nevertheless, appellant asserts that the dis-
missal amounted to state action because (1)
the private entity conspired with state
officials to perform an unconstitutional act.
16/ The institution exists independent
of any state or local Regetatory authority.
It is a private membership corporation
organized under New York corporation law.
Pursuant to its r Spgr od a board of direc-
tors elected by the Society's general
members manages the organization. No
member of the board is a public official.
The attorney-in-charge has authority
for the supervision of the branch offices,
eg the hiring and firing of attor-
neys, subject to the control of the board.
The Society provides legal services
to indigent criminal defendants under a
contract with the County of Suffolk,
renewed on an annual basis. This contract
was made pursuant to New York state law
which authorizes the County to utilize
"public defender" or "private legal aid"
systems. It provides in pertinent part:
App. Al18g
Adickes v. S.H. Kress & Co., 398 U.S. 144
(1970); United States v. Price, 383 U.S. 787,
794 (1966), and (2) the State, through its
judicial officers' conduct and its administra-
tive and financial support of the Society,
”
»” °
‘
16/ Cont.
The governing body of each county .
shall place in operation throughout the
county. . .a plan for gris. counsel
to versons charged with a crime. . .who
are Pg ey unable to obtain counsel.
Each plan shall also provide for investi-
jag expert and other services necessary
or an adequate defense. The plan shall
conform to one of the following:
2. (R)epresentation by counsel
furnished by a private legal aid bureau
or society designated by the county or
city, organized and operating to give
legal assistance and representation to
persons charged with a crime within the
city or county who are financially unable
to obtain counsel. . .
3. Representation by counsel fur-
nished pursuant to a plan of a bar
association. .
4. Representation according to a
plan containing a combination of any of
\ the foregoing. . .
N.Y. County Law, art. 18-B, §722 (McKinney
Supp. 1977-78) (emphasis added).
App. -Al9
"significantly involved itself" in the ad-
ministration of the private institution, see
Moose Lodge No. 107 v. Irvis, 407 U.S. 163,
173 (1972); Reitman v. Mulkey, 387 U.S. 369,
- 380 (1967), and developed a "symbiotic
relationship" with the private ofganization.
See Burton v. Wilmington Parking Authority,
365 U.S. 715 (1961).
We believe that Lefcourt v. Legal-Aid.
Society, 445 F. 2d 1150 (2d Cir. 1971), is
dispositive of most of the theories advanced
by appellant and that the additional facts
extant in this case do not compel a contrary
result. In Lefcourt, a panel of this court
held that the dismissal of a legal aid attorney
by the Legal Aid Society of the City of New
York was not performed under color of state
law, notwithstanding the seat Y substantial
government funds by the Society. The lack
17/ Chief Judge Mishler was aware of
the more rigorous scrutiny imposed when
challenged activity does not involve
ee
App. A20
of governmental control over or interference
with the Society's affairs was deemed.
17/ Cont.
racial discrimination. See Lefcourt Vv.
Legal Aid Soc'y, 445 F, Zd 150, II55
n. é (2d Cir 1551). We agree that the
less stringent State action standard
utilized in racial discrimination cases
is inapplicable here. Schlein v. Milford
Hos Inc., 561 F. 2d 427, 428 n.5 (2d
Cir. “TO7T) (per curiam); Taylor v.. Consol.
Edison Co. of New York Inc. ; 552 F. 2d
ackson v..
Statler Fdiindat fon. 496 F. 2d 623, 629,
» cert. denied, "420 U. S.
927 ¢i975) But But Ces @.e., Downs v.
Sawtelle, No. 77-126 stip op p. .at 7-8
eRe ar. 30, 8) (urging that
"fundamental rights" should receive
identical scrutiny).
App. A21
18/
pivotal. Id. at 1155.
The similarities between Lefcourt and the
facts before us are, not surprisingly, striking.
The bylaws of both societies are almost identi-
cal, see note.16 supra, their respective
18/ The court in Lefcourt also rejected
the public function theory of state action
holding:
Although the Society by contract ~
has undertaken to make available to’:
indigents legal services which other-
wise governmental agencies might have
to assume, its history constitution,
by-laws, organization and management
definitely establish that it is a pri-
vate institution in no manner under
State of City sypervision or control.
Lefcourt v. Legal Aid Soc'y, supra, 445
F. 2d at 1156-57 (footnote omitted).
See also Flag Bros., Inc. v. Brooks, 46
03. LW. , - .5. May 15, 1978)
(rejecting public function doctrine of
state action where challenged private
conduct is not an exclusive prerogative
of the State); but see id. at Abo
(refusing to consider whether state
action is implicated by delegation to
private seek bt, of functions traditionally
more exclusive than dispute resolution,
such as education).
App. A22
contracts were made pursuant to the same New
York law requiring the State to implement a
plan for furnishing counsel to indigent
defendants, see Lefcourt v. Legal Aid Society,
supra, 445 F: 2d at 1155, they both receive
substantial government funding (although the
Society in Lefcourt evidently received some
funds for its criminal division from private
source >” thay are both housed in government
buildings, and, most importantly, there is no
formal mechanism through which any government
entity can exercise control or supervision over
the internal operations of the societies.
See id.
Thus far, Lefcourt supports if not compels
a finding of no state action. Its reasoning
applies with equal force to the instant facts:
19/ The criminal division of the Society
in the case before us is entirely funded
by the Suffolk County Legislature.
Id.
App. A23
(I1)t cannot be said that the Society
acts under color of State law by virtue
of the financial and other benefits (20/)
which it receives from the City and ~
various other Srrerpmentas agencies,
courts and subdivisions, since there has
been no sufficient showing of governmental
control, regulation or interference with
the manner in which the Society conducts
its affairs. . ree
(footnote omitted).
The crucial question is whether the actions
of JudgesMauceri and Green, and in particular
20/
." ia
Appellant lists as additional indicia
of state action Judge Mauceri's request
for funds for the Society in his 1971
annual address to the County Legislature,
his having provided the Society with a
Spanish-speaking interpreter, and his
adjustment of certain court procedures
to accomodate the Society when its case-
load became excessive. Such minimal
courtesies to ensure the continued effi-
cient operation of the Society and con-
comitantly of the criminal courts are
hardly grounds for distinguishing this
case from Lefcourt. Moreover, as is
true of the factors analogous to both
cases, there is no relationship or nexus
between state involvement of this sort
and the challenged dismissal. See note
22 infra. Lidia
App. A24
their communications with Graseck's super-
visors, provide sufficient invclvement in
the discharge to distinguish Lefcourt and
to render the conduct of the Society that of
the State. Since the judges in no sense
actively participated in the deéteivnneking
process itself, it must be determined whether
they encouraged or coerced the dismissal,
see, e.g., Flag Brothers, Inc. v. Brooks,
46 U.S.L.W. 4438, 4442 (U.S. May 15, 1978);
Jackson v. Metropolitan Edison Co., 419 U.S.
345, 356 n.15, 357 & n.17 (1974); Moose
Lodge No. 107 v. Irvis, supra, 407 U.S. at
173, 176-77; Schlein v. Milford Hospital, Inc.,
561 F. 2d 427, 428-29 (2d Cir. 1977) (per
curiam); Taylor v. Consolidated Edison Co.
of New York, Inc., 552 F. 2d 39, 43, 46 (2d
Cir. 1977); Note, State Action: Theories for
Applying Constitutional Restrictions to Private
Activities, 74 Colum. L. Rev. 656, 680, 682-
83 (1974). And even if that question were
answered affirmatively, the question would
App. A25
remain whether the discharge was in response
to their requests. See Writers Guild of
America, West, Inc. v. FCC, 423 F. Supp.
1064, 1136-38, 1140 (C.D. Cal. 1976)
(especially discussion of prior state action
cases); cf.’ Herrmann Vv. Moore, No. 77-6184,
slip op. 3005, at 3011-1 (2d Cir. May 10,
1978) (no "deprivation" under 42 U.S.C.
§1983 where trial continued despite alleged
attempts by state court judge to impede thie
action).
Appellant asserts that his discharge
‘was in direct response to the judicial
pressure imposed on the Society by Judges
Green and Mauceri. We are unpersuaded by
Graseck's argument, as were the courts below.
Judge Weinstein, in dismissing the complaint
against the state judges, see notes 2-3
supra, found totally lacking any evidence
that they encouraged or even desired the
discharge:
App. A26
There isn't the slightest direct
evidence that these judges asked
for the resignation or firing of
this plaintiff or that they desired
it. . . I don't see how there's any
basis for liability here in the judges. .
There simply has been no case made out.
The only thing we have is the hearsay
and surmise of the plaintiff, which
certainly doesn't suffice.
Trial eapape hae 268 (Weinstein trial)
(Nov. 26, 1976). Chief Judge Mishler con-
cluded in a similar vein that "their parti-
cipation was chiefly confined to criticizing
21/ We note that at the conclusion
of the initial trial Judge Weinstein
found the evidence too indirect to
justify retention of the state judges
as parties. He was, however, not dis-
cussing their involvement with the Society
for purposes of establishing state action.
In fact, Judge Weinstein denied a motion
to dismiss for lack of jurisdiction,
finding state action from the close working
relationship between the District Court
of Suffolk County and the Society. Trial
Transcript at 269 (Weinstein trial) (Nov.
26, 1976). .
App. A27
plaintiff for his errors of judgment and his
misdeeds, and to reporting these incidents to
his superiors," Graseck v. Mauceri, supra,
No. 74-C1157, at 24; and that "the decision
to dismiss (appellant) resulted from the
independent determination of the Society and
was grounded upon (appellant's) entire course
of conduct during the twelve month period of
his employment at the district Court Bureai.”
Id. at 25 (emphasis in original).
State involvement in any manner in the
activities of a private institution does not
necessarily establish state action. Its
existence depends on "whether there is a
sufficiently close nexus between the State
and the challenged action of the(private)
entity so that the action of the latter may
be fairly treated as that of the State itself".
Jackson v. Metropolitan Edison Co., supra, 419
Zif/
U.S. at 351; Moose Lodge No. 107 v. Irvis,
22/ The Supreme Court has not yet
addressed the extent to which the
App. A28
supra, 407 U.S. at 176. Im the typical
case, the question posed is relatively
simple: was the state "involved not simply
with some activity of the institution alleged
or” PR. *
to have inflicted injury upon a plaintiff
22/ Cont.
"symbiotic relationship" analysis
' of Burton v. Wilmington Parking Auth.,
365 U.S. 7IS5 (1961), survives Sackson
v. Metropolitan Edison Co., 4197 U.S.
345 19787. We have held that the
relationship beteeen the state and
a private entity may be so extensive
that the actions of the ostensibl
private institution will fall within
the ambit of state action, even in
the absence of direct state involvement
in the eons teegee activity. Holodnak v.
Avco Corp., 514 F. 2d 285, 288 (2d Cir.),
cert. denied, 423 U.S. 892 AL Sig
Accord, e.zg., Downs v. Sawtelle, supra,
No--77-1260" at 12-13 Chaltane v-
Wilmington Inst., No. 76-ZT3Z, slip op.
SETW0-t3 Cord Cir. Feb. 27, 1978)
tee banc); Braden v. Univ. of Pittsburgh,
52 F. 2d 943, 956-58 (3rd Cir. I977)
(en banc); Weise v. Syracuse Univ.,
922 F. 2d 397, n. r. 1975).
Not unmindful of the close working
relationship here, we believe that the
absence of governmental pos pers
let alone of "substantial" participation,
in the Society's general management and
internal operations precludes a finding
in this case of the degree of pervasive
App. A29
but with the activity that caused the injury(?)"
Powe v. Miles, 407 F. 2d 73, 81 (2d Cir. 1968)
(emphasis added). The instant case presents
a slightly different inquiry, however, because
the conflicts between Graseck and the judges
undisputedly were among the fiactors which
prompted the Society's decision to discharge
appellant. Thus, there is an attenuated
causal connection between the conduct of the
judges and the action taken by the Society
that normally does not exist in the regulatory
context. It still must be determined, however,
22/ Cont.
are or partnership
contemplated by Burton. See Braden
v. Univ. of Pittsburgh, supra, 552
EF. 2d at 959-61; Jackson v. Statler
Foundation, supra, 496 F. 2d at 635;
cf. Schlein v. lford Hosp., Inc.,
Supra, 06. F. 2d at 428-729 (holding
no state action because of absence
of a nexus without discussing symbiotic
relationship analysis, where the state
— no part in either formulating
sek procedures of hospital or
ng them to appellant),
apply
App. A30
“whether the state judges placed their
"imprimatur" on the Society's conduct,
| Jackson v. Metropolitan Edison Co., supra,
419 U.S. at 357, by expressing their un-
happiness and requesting the Society to con-
trol its attorney.’ In the words of the Supreme
Court, "where the (state) has not put its own
weight on the side of the proposed practice
by ordering it, . . .a practice initiated by
the(private entity) and approved by the (state
is not transmuted) into 'state action.'" -Id.
at 357. But where it has done so, Jackson
seems to imply, there perhaps may be state
~
action. Cf. Note, supra, 74 Colum. L. Rev. at
656, 582 n. 166, 683 (relying on Second Cir-
cuit cases for the proposition Yrat state
action "does not require that government
command, regulate or influence the challenged
activity. It is enough that government in-
fluence or encourage private persons to
perform functions or implement policies in
the course of which a challenged activity
App. A31l
occurred." (footnote omitted) ).
Our review of the three incidents
deemed crucial by appellant convinces us
that the limited nature of the judges'
conduct complained of precludes a finding of
state action. The chain of events following
Judge Mauceri's communications after the
subpoena incident is quite revelatory of his
lack of influence over both the Society's
internal operations in general and its
ultimate decision to discharge Graseck. Boyle
and Middlemiss adamantly refused to transfer
appellant, contrary to the judge's suggestion.
From the transcript of the subsequent meeting,
it is apparent that not only had Judge Mauceri
by this time acquiesced in the Sockety's deci-
sion, but he was hopeful of a good working
relationship in the future. The judge did
not again have contact with the Society con-
cerning Graseck until the pen incident, some
eight months later. Thus, the evidence re-
futes the notion that Graseck's discharge
2 oe Se
le ee ee + te as Feet
App. A32
was in response to Judge Mauceri's transfer
suggestion. Moreover, there is no indication
that the judge directly or indirectly en-
couraged the dismissal simply by bringing
to the attention of the Society with the
aim of arresting similar incidents conduct
of one of its staff thought by the judge to
be improper. See text accompanying notes
23-24 infra. :
Appellant's attempt to attribute his
dismissal to prompting by Judge Green fares
no better. There is no evidence that the
judge ever requested, suggested or desired
the Society's course of action. He was
solely controlling the administration of
his court. We do not doubt that the friction
between the judge and appellant could have
impeded appellant's ability meaningfully to
function for the Society; obviously, the
Society would not have “‘scounted this concern
when it reviewed appellant's past and future
utility. But much more in the way of state
App. A33
involvement is necessary to characterize
private conduct as that of the State.
"(T)he state action, not the private action,
must be the subject of the complaint." Powe
v. Miles, supra, 407 F. 2d at 8l. See Taylor
’ PR.
v. Consolidated Edison Co. of New York, Inc.,
supra, 552 F. 2d at 43 ("The relationship
of the state's involvement to the conduct
forming the basis of the constitutional claim
is likewise of prime importance. Where the
‘private'party is engaged in the alleged
deprivaticn at the state's express direction,
the actor may well be subjected to constitu-
tional limitations."). We are unwilling to
infer judicial fostering of the dismissal
simply because a judicial officer happened
to be involved in one of numerous incidents
which reflected appellant's inability to work
compatibly with the people around him. See
text accompanying notes 23-24 infra.
The lack of state direction is further
elucidated by the circumstances surrounding
App. A34
Judge Mauceri's order barring Graseck from
the holding pen. Undisputedly, appellant's
diminished utility to the Society resulting
from ee was one reason for his dis-
missal. We reiterate, however, that it
is not the effect alone that government
conduct has on private actions which establishes
the governmental character of the private
at tina. Rather, it is the degree of gdverti-
ment influence and control over the private
entity, and in particular eis se decision
itself that is determinative. Judge Mauceri's
°
23/ Middlemiss testified that his
ars decision to discharge appellant
crystalized after the pen incident
not only because of Graseck's impaired
utility to the Society stemming from
Judge Mauceri's order, but also be-
cause of the extreme impropriety and
seriousness of Graseck's conduct.
24 / Appellant's reliance on Writers
Guild of America, West, Inc. v. FCC,
G23 F. Supp. 1004 (C.D. cal. 19/70),
is unavailing. Judge Ferguson there
stated, after a thorough review of
the state action doctrine, that mere
governmental encouragement of a
programming policy ultimately adopted
| App. A35
order was made to promote the orderly func-
tioning of the criminal court system pursuant
to his duties as administrative judge. We
refuse to read into this action any other
motive, nor could we do so even if willing,
given our appellate role. Middlemiss, after
discussion with Costello, determined that
appellant's discharge was in the best interests
of the Society. That the’ decision was pettlally
based on prior clashes with two state court
judges and a desire to promote a good working
relationship with these judges (as well as
>
24/ Cont.
by the major networks would not
suffice to invoke the doctrine.
423 F. Supp. at 1135-40. The
court found state action extant
due to the FCC's exertion of. sig-
nificant pressure to adopt the policy
accompanied by threats of severe sanc-
tions. Id. at 140-43. See Kuczo v.
Western TOnnecticut Broadcasting Co.,
566 F. 2d 304, 307-08 (2d Gil. POTTS.
° ’
In other words, the private decision
was not an independent one. Here,
by contrast, evidence of active
encouragement is meager; evidence of
pressure to discharge appellant is
totally lacking.
App. A36 |
between the staff attorneys) does not shift
responsibility for an internal decision
generated by an autonomous organization into
state action. To characterize the one dis-
puted Statement of Judge Mauceri, "EO get
this guy out of my court," seé text accompany-
ing notes 14-15 supra, as having significantly
influenced the dismissal distorts the Signi -
ficance of the statement, made in a moment :
of anger, as well as the record, brimming -with
additional incidents, out of all proportion.
Judge Mauceri's expression of his displeasure
with appellant's behavior was a feeling
evidently not unique to the judges. Given
the continuing working per ersenshtp between
2 judges and the Society, his cement to
minimize strain through discussion is per-
fectly understandable. In the final analysis
we must, in the light of the district court's
findings, view Judge Mauceri's possible request
for appellant's removal as no more than an
unfortunate expression of outrage which the
App. A37
Society never interpreted as a demand for
dismissal.
In sum, we agree with the district
court that the Society initiated the dis-
missal based “on its own independent evalua-
tion of its ‘needs, rather than at the behest
(25/
of the state judges. See Taylor v. Consoli-
dated Edison Co. of New York, Inc., supra,
552 F. 2d at 45. Official "involvement, ! if
it can even be characterized as such, -:merely
amounted to the judges' contribution of. ~
material facts, their reactions thereto, and
their exercise of supervisory powers over
{
25/ To so extent that the con-
spiracy theory of state action
utilized in Adickes v. S.H.Kress
& CO., supra, 1S distinguishable
trom the coercion or encouragement
theory discussed above, compare
Writers Guild of America, West, Inc.
v. FCC, Supra, 425 F. Supp. at L1l5s-
35 n. 129 (noting a sonsibie differ-
ence), with Flag Bros., Inc. v. Brooks,
supra, 46 U.S.L.W. at 4447 (implying
no difference), it is inapplicable
here. The state judges’ Yack of
encouragement to dismiss appellant
and lack of intent in this regard
belie the existence of a conspiracy.
App. A38
their courts. There being no official
intrusion into the personnel policies of
the Society, its management decision may
not be attributed to the State.
Judgment affirmed.
EE ———- ye
—— A
App. Bl(a)
MEMORANDUM OF DECISION AND ORDER
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ARTHUR V. GRASECK, JR.,
Plaines fe,
J
-against-
ANGELO MAUCERI, individually and as
Administrative Judge of the District
Court of Suffolk spank b EDWARD U.
GREEN, JR., individually and as a
Judge of the District Court of
Suffolk County; JOHN F. MIDDLEMISS,
JR., individually and as Attorny-
in-Charge, Legal Aid Society of
Suffolk County, New York; RAPLH
COSTELLO, individually and as
Attorny-in-Charge of the District
Court Bureau of the Criminal Divi-
sion of the Legal Aid Society of _ .
Suffolk County, New York; LEGAL AID
SOCIETY OF SUFFOLK COUNTY, NEW YORK,
Defendants.
No. 74-C-1157
App. Bl(b)
MEMORANDUM OF DECISION AND ORDER
ee ee ee eee xX
RESERVE INSURANCE -COMPANY,
Plaintiff, +’ “Memorandum of
ey Decision and
-against- Order
(Consolidated |
ANGELO MAUCERI, individually, Actions )
etc., EDWARD U. GREEN, JR.,
individually, etc., JOHN F.
MIDDLEMISS, JR., individually,
etc., RALPH COSTELLO, indivi-
dually, etc., LEGAL AID SOCIETY
OF SUFFOLK COUNTY, NEW YORK No. 74-C-1559
and ARTHUR V. GRASECK,
Defendants. October 28, 1977
App. B2
Memorandum of Decision and Order
APPEARANCES:
Attorneys for Plaintiff Graseck
LEGAL ACTION CENTER OF THE CITY OF
NEW YORK, INC.
271 Madison Avenue
New York, New York 10016. ~. .
by: DEBORAH M. GREENBERG, ESQ. and
4 HARLON L. DALTON, ESQ. -Of Counsel
- an —
BURT NEUBORNE, ESQ.
40 Washington Square South
New York, New York 10003
Attorneys for Plaintiff Reserve Insurance Co.
BOWER AND GARDNER, ESQS.
415 Madison Avenue
New York, New York 10017
by: RICHARD T. WOLF, ESQ.-Of Counsel
FN s for Defendants John F. Middlemiss,
Jr., Ralph Costello and Legal Aid Society
of suffolk County, New York
BRADY, TARPEY, HOEY, P.C.
84 William Street
New York, New York 10038
by: JOSEPH P. HOEY, ESQ.-Of Counsel
MISHLER, CH. J.
Plaintiff brings this action to
redress his alleged improper discharge as a
staff attorney with the Legal Aid Society of
Suffolk County, New York ("the Society").
App. B3
Memorandum of Decision and Order
He contends that defendants, acting under
color of state law, terminated his employment
in violation of (i) substantive rights pro-
tected by the first, sixth and fourteenth
amendments to the United States Constitution
and (ii) procedural rights protected by the
fourteenth amendment to the United States
Constitution. More specifically, plaintifé
argues that his dismissal was prompted by the
exercise of free speech and the assertion of
his clients’ rights to a fair trial and to
effective legal representation. Plaintiff
also contends that the reasons proferred by
defendants for his termination are unconstitu-
tionally arbitrary and that the dismissal was
motivated by judicial pressure. Finally,
plaintiff asserts that defendants' failure
to afford him written notice of the basis of
his dismissal and to factually investigate
these grounds violated the due process clause ,
of the fourteenth amendment.
v App. B4
Memorandum of Decision and Order
Plaintiff bases his claim upon
42 U.S.C. 1985"and upon the first, sixth and
fourteenth amendments to the United States
Constitution. Thus, jurisdiction is conferred
by the federal question statute, 28 U.S.C.
§1331(a), and 28 U.S.C. §1343(3) and (4).
Plaintiff seeks a declaratory judgment
stating that his dismissal was unconstitutional;
an order directing his reinstatement with the
Society; and back pay commencing from the date
of his discharge.
/l1 42 U.S.C. §1983 provides that:
etm,
Every person who, under color of any
statute, ordinance, regulation, custom,
or usage, of any State or Territory, sub-
jects, or causes to be subjected, any
citizen of the United States or other
person within the jurisdiction thereof
to the deprivation of any rights, privi-
leges, or immunities secured by the
Constitution and laws, shall be liable
to the party injured in an action at law,
suit in equity, or other proper proceed-
ing for redress.
App. B5
Memorandum of Decision and Order
Defendants take the position that
the Society is a private entity whose actions
were not taken under color of state law and
therefore isnot subject to jurisdiction
under 42 U.S.C. §1983. Furthermore, defendants
argue that even if the Society is deemed an
instrumentality of the state (i) they did not
deprive plaintiff of any constitutional rights
and (ii) plaintiff was an employee édecharee-
able at will who was dismissed for good cause.
The case was tried before the under-
/2
signed.
/2 Approximately six months before the case
~ was heard by this court, the action was
fully tried by Judge Weinstein. At the
close of trial, J ge Weinstein granted
motions to dismiss by defendants Mauceri,
Green and Costello; denied similar motions,
by defendants Middlemiss and the Society;
and reserved decision on all other issues.
Thereafter, Judge Weinstein recused him-
self and the case was reassigned to the
undersigned. At retrial, the parties
agreed to incorporate the transcripts of
the Weinstein trial as evidence and were
eg the opportunity to call any witnesses
or additional examination.
App. B6
Memorandum of Decision and Order
FINDINGS OF FACT
On July 12, 1971, plaintiff began
working for the Society as a staff attorney in
its Criminal Division. In October, he was
assigned to the District Court Bureau in
Hauppauge, Long Island where he remained until
his dismissal apptoxisiately one year later.
E. Thomas Boyle, Attorney-in-Charge of the
District Court Bureau from October 1971 to
August 1972, served as plaintiff's Aieetnte
supervisor. In August 1972, Ralph Costello
replaced Boyle as Attorney-in-Charge of the
District Court Bureau and thus supervised
plaintiff during the final two months of his
{3 The Criminal Division of the Society has
~ two offices, one in Hauppauge where the
District Court is located (this office
is referred to as the District Court
Bureau) and one in Riverhead where the
County Court and the Supreme Court are
located. The District Court Bureau pro-
vides representation to indigents prose-
cuted in the District Court on misdemeanor
charges and also provides representation
to indigents at felony examinations. The
District Court Bureau is physically situ-
ated in the courthouse itself.
App. B/7
Memorandum of Decision and Order
employment.
On October 13, 1972, defendant John
F. Middlemiss, Jr., Attorney-in-Charge of the
Society, met with plaintiff - Costello.
Defendant Middlemiss asked plaintiff to resign,
setting forth the grounds for the request.
When plaintiff refused to resign -- stating
that he needed the weekend to consider it at
defendant Middlemiss dismissed him. ,
A few days later, Boyle met with
defendant Middlemiss to protest plaintiff's
discharge and to urge his reinstatement. When
defendant Middlemiss declined to rehire plain-
tiff, Boyle resigned. In his letter of resigna-
tion dated October 31, 1972, Boyle accused the
Society of discharging plaintiff for incurring
judicial disfavor. He stated that "...Mr.
Graseck was fired as a result of certain pre-
ssures brought to bear by the administrative
judge of the District Court, Angelo Mauceri,
J.D.D., and that Mr. Graseck's firing was
Sain
App. B8
Memorandum of Decision and Order
totally unwéirramted under the circumstances.
." (Plaintiff's Exhibit 2, p.1).
On November 15, the Personnel Committee
of the Society held a hearing to review plain-
tiff's termination, Sdeticulaviy ‘hs charge
levelled against the Society by plaintiff and
Boyle that judicial pressure provoked the
decision. Plaintiff was notified of the meet-
ing, but he did not receive a written statement ™
of the grounds for his dismissal. The meeting
was divided into two parts; during the first
half, which was open to the public,. former
clients of plaintiff testified on his behalf.
Thereafter, the balance of the meeting was
conducted in private among plaintiff, Boyle,
defendant Middlemiss, Costello and the five
members of the Personnel Committee. The four
attorneys were afforded full opportunity to
present their "cases" to the Committee: plain-
tiff expressed his view as to why he was
discharged and submitted exhibits in support
App.B9 |
Memorandum of Decision and Order
thereof; Boyle spoke on plaintiff's behalf;
and defendant Middlemiss and Costello summarized
their reasons for plaintiff's removal. At the
conclusion of the hearing, the Personnel
Committee, on the basis of the evidence pre-
sented, voted four to one to uphold the decision
of defendant Middlemiss to dismiss plaintiff.
Plaintiff was apprised of- the Committee's
affirmation the day of the hearing. On January
24, 1973, the Board of Directors of the Society
reviewed plaintiff's dismissal and stistained
the decision of the Personnel Committee. Plain-
tiff was neither informed of, nor present at,
this meeting.
A barrage of oral and dokwientary
evidence reflecting plaintiff's employment
record, including the reasons for his termina-
tion, was presented at trial. A careful review
of the record discloses that plaintiff was
discharged for a manifest inability to function
within the organizational framework of the
we ¥ -ppeatneinemedeted
App. B10
Memorandum of Decision and Order
Society. The evidence amply demonstrates
that plaintiff was unable to work with collea-
gues, to adhere to elementary rules and pro-
cedures of the Soceity and the District Court;
and to exercise the degree ok amuei judgment
that is necessary when presenting a case before
the court. During the twelve month period of
his employment at the District Court Bureau,
plaintiff was unwilling to work as a member of
a team but rather consistently performed J
according to his personal concept of. his
position. The incidents which culminated in
plaintiff's dismissal might, when viewed singly,
seem insignificant; however, when regarded in
the aggregate, they unequivocally support the
Society's contention that plaintiff's conduct
impeded its proper functioning and reflected
adversely on its good name. The summary below
constitutes our findings of fact as to the
reasons for plaintiff's discharge:
Se
App. Bll
Memorandum of Decision and Order
INABILITY TO WORK WITH COLLEAGUES
The friction between plaintiff and
his coworkers was not the product of persona-
lity conflicts, but rather resulted from
plaintiff's repeated intéetetence with the
clients of his fellow staff attorneys. These
encroachments not only angered plaintiff's
colleagues, but also hindered the smooth opera-
tions of the Society and the courthouse. —
a
(a) The Mottenburg Incident
Without informing Mrs. Mottenburg,
plaintiff took one of her client's files so
he could discuss the case with the client.
While advising her client outside the courtroom,
the case was called, nobody answered, and a
bench warrant was issued for the client's
arrest. This incident led to a heated argument
between plaintiff and Mrs. Mottenburg.
(b) The Kuzmier, Lardner and
Elliott Incidents
After Mr. Kuzmier negotiated a dis-
position with the District Attorney and
=~
SS App. B12
Memorandum of Decision and Order
obtained the consent of the client as well as
the judge, the client subsequently refused to
plead guilty to a violation. It seems that
plaintiff, without the knowledge or consent
of Mr. Kuzmier, interviewed the defendant and
advised him not to plead guilty. Plaintiff
similarly interfered with the clients of Mr.
Lardner and Mr. Elliott; he advised or induced
these defendants to withdraw their pleas with-
out consulting assigned counsel.
ERRORS OF JUDGMENT
Plaintiff's overwhelming desire to
protect and defend his assigned clients often
led him to exercise poor judgment and to
deviate from established standards of conduct,
This weakness particularly emerged in his
relations with the judges of the District
Court.
(a) The Subpoena Incident
In February 1972, plaintiff was
assigned to defend Lee Conyers. During the
App. B13
Memorandum of Decision and Order
trial, plaintiff orally applied for the pro-
duction of certain police records for employ-
ment in cross-examination, but the presiding
judge denied*the request. After the court
recessed for the day, plaintiff drafted a sub-
poena duces tecum for the production of these
documents and, the next morning, asked Judge
Angelo Mauceri, the Administrative Judge of
the District Court, to sign the subpoena.
' Judge Mauceri declined. Plaintiff then pre-
sented the subpoena to Judge Orgera without
disclosing that the same application had been
denied. Judge Orgera refused to sign because
of its overbroad scope. Plaintiff. thereafter
delivered the unsigned subpoena to Edward
Elliott, a fellow staff attorney, and requested
that he submit it to Judge Colinari, the
judge before whom Mr. Elliott was presently
appearing. Judge Colinari signed the subpoena.
Again, plaintiff did not inform his colleague
or Judge Colinari that both Judge Mauceri and
App. B14
Memorandum of Decision and Order
Judge Orgera had previously denied the applica-
tion.
When Judge Mauceri discovered the
procedure employed by plaintiff to obtain
the subpoena, he summoned Boyle sé bia office
and suggested that plaintiff should be trans-
ferred from the District Court Bureau. Boyle
consulted with defendant Middlemiss and both
agreed that a transfer of plaintiff would con-
stitute a submission by the Society to the
authority of the court in a matter which solely
concerned the Society. Shortly thereafter,
Judge Mauceri conducted a meeting with Boyle
and plaintiff in his chambers. Judge; Mauceri
expressed the view that plaintiff had violated
the Canons of Ethics by not apprising the judges
of the prior submissions of the subpoena.
However, Judge Mauceri stressed that his pur-
pose was not to hinder plaintiff's proper
representation of clients. He advised plain-
tiff that "(a)s far as your practice, I don't
App. B15
Memorandum of Decision and Order
want you to limit yourself or your ability to
defend the clients the way you see fit. I
don't intend to do that but you have to do
it within the purview of the rulgs and regul.a-
tions of Ethics. Every lawyer is bound by it,
not only you but everyone, whether it be a
private attorney or one working for the State
as you are." (Plaintiff's Exhibit 15, p. 5).
(b) The McElhiney Affirmation
On September 27, 1972, plaintiff
moved to dismiss for failure to prosecute
People v. McElhiney, a misdemeanor prosecution
that had been on the calendar on eight different
occasions. Plaintiff filed an affirmation in
support of the motion in which he stated that
"(t)he sequence of events detailed above might
lead an objective observer to conclude that
the Court has functioned as an agent of the
District Attorney, focusing on the convenience
of the prosecution, ignoring the defendant's
right to a speedy trial, and endeavoring to
as
App. B16
Memorandum of Decision and Order
to assure that a case which the People might
lose on trial not be tried." (Plaintiff's
Exhibit 1, p. 3). This accusation was ob-
viously aimed at Judge Green who, earlier in
the affirmation, was charged by plaintiff
with speaking for the office of the District
Attorney in offering an explanation for the
prosecution's lack of readiness for trial.
When Judge Green learned of the affirmation,
he summoned plaintiff and Costello to his
chambers and instructed plaintiff that, in
the future, he should request his disqualifi-
cation from any case in which plaintiff felt
he was biased. Costello reported the incident
to defendant Middlemiss. |
(c) The Article 78 Proceeding
against Judge Tisch
This episode involved a case which
plaintiff was ready to try but was adjourned
upon the request of the District Attorney.
When Judge Tisch adjourned the case, he marked
App. B17
Memorandum of Decision and Order
_the file "No Parts Available". Plaintiff
believed that Judge Tisch's inaccurate des-.
cription was intentional and attempted to bring
an Article 78 proceeding to compel the proper
notation for the diitnnede:: Pathetic travel-
led to Riverhead to file the proceeding, but
defendant Middlemiss interceded: and instructed
plaintiff not to pursue the matter. Plaintiff
not only abandoned his assigned part in the
District Court Bureau to file the proceeding,
but he also brought it in the wrong court.
INABILITY TO FOLLOW ESTABLISHED RULES
(a) The Pen Incident
On October 12, 1972, plaintiff accom-
panied a client he was currently defending at
trial to the courthouse holding pen. .To enable
the defendant to take notes for plaintiff's
use at summation, plaintiff gave the defendant
a ball point pen, notwithstanding previous oral
admonishments by the security force personnel
not to leave such instruments with detainees.
App. B18
Memorandum of Decision and Order
Upon discovery that plaintiff had provided the
defendant with the pen, a member of the holding
pen security force refused to allow plaintiff
to enter the detention area and notified Judge
Mauceri of the incident. Judge Mauceri issued
an order barring plaintiff from the holding
pen; telephoned defendant Middlemiss to inform
him of his action; and subsequently sent a formal
letter to defendant Middlemiss reciting his
decision to bar plaintiff from the holding pen.
(b) The Volz Incident
Assistant District Attorney Volz
discovered plaintiff rummaging through files
in the Suffolk County District Attorney's
Office, which was located in the District Court
building, after 5:00 p.m. Volz reported the
incident to his supervisor and the latter
forbade plaintiff from entering the District
Attorney's Office without accompaniment by an
Assistant District Attorney.
a a
App. B19
Memorandum of Decision and Order
(c) Lending of Minutes
Without Permission
On several ovcasions, plaintiff,
without the requisite approval, loaned minutes
of Legal Aid cases which were ordered and paid
for by the Society to outsiders.
ABSENCE FROM ASSIGNED PARTS
During the course of his employment
with the Society, plaintiff evidenced a strong
interest in police brutality cases. Plaintiff
often accompanied these defendants to the
Suffolk County Human Rights Commission and the
Internal Affairs Bureau of the Suffolk County
Police Department to assist them in filing formal
complaints of police misconduct. Plaintiff also
personally argued more writs of habeas corpus
than any other staff attorney, which proceedings
necessitated frequent trips to the County and
Supreme Courts in Riverhead. Although the
Society's philos8Sphy was clearly not to restrict
plaintiff from pursuing such cases, these pre-
occupations disrupted the organization of the
App. B20
Memorandum of Decision and Order
Society and often shifted plaintiff's workload
to the shoulders of his colleagues. For example,
Edward Elliott, a staff attorney who was assigned
to the arraignment part with plaintiff, was
often forced to administer the duties single-
handedly because of plaintiff's continuous
disappearance. Plaintiff's absence was sorely
felt since there were as many as 180 arraingments
a day, of which fifty to sixty constituted
prisoners who had been transported from the six
precincts and from the county jail. It was
necessary to interview each prisoner in order to
decide whether he or she qualified for Legal
Aid. Costello received almost daily complaints
concerning plaintiff's absence from assigned
parts, including his nonappearance in the court-
room when cases were called. Plaintiff's
presence in the arraignment part was,so scarce
in September 1972 that Costello was forced to
reassign him to the identical part in October.
a
tm eee ~~!
App. B21
Memorandum of Decision and Order
CONCLUSIONS OF LAW
Jurisdiction: Under Color of State Law
To state a cause of action under
§1983, two elements must be proven. First,
plaintiff must establish that defendants have
acted ", . . under color of any statute, ordi-
nance, regulations, custom, or usage, of any
State or Territory. . ." Or, expressed in its
colloquial terms, plaintiff must demonstrate
that defendants have acted "under color of
/4
state law." Second, plaintiff must prove that
/4 Similarly, plaintiff's claim under the
~ first, sixth and fourteenth amendments
requires a showing of state action. The
due process clause of the foutteenth
amendment provides:
"No State shall . . .deprive any person
of life, age ag $s or property, without
due process of law. . ." (emphasis added).
The "under color of state law" re-
quirement of §1983 is synonymous with the
"state action!
requirement of the fourteenth
amendment. United States v. Price, 383 U.S.
= — wer err oe a> ee
ew EEE
— So Ge Re es
App. B22
Memorandum of Decision and Order
defendants deprived him of a right, privilege
or immunity secured by the Constitution and
laws of the United States.
The. Society is a membership corpora-
tion created and organized under Article 2 of
the Membership Corporation Law of the State of
New York, At all relevant cimes, it was under |
contract with the County of Suffolk to provide
legal isi iaiion to indigent criminal defendants
in that county pursuant to Article 18-B, §722
of the County Law of New York (McKinney Supp.
1976-77), which requires each county to insti-
tute a scheme for providing counsel to indigent
/5
persons charged with a crime. The Criminal
/4 Cont.
767, 796 n./'%5- 86S. Ct. 1152, 2157 (1966);
Perez v. Sugarman, 499 F. 2d 761, 764 (2d
Cir. 1974); Shirley v. State Nat. Bank of
Connecticut, 493 F. 2d /39, /41 (2d Cir.
1574), cert. denied, 419 U.S. 1009, 95
S. Ct.
/5 §722 of Article 18-B provides, in pertinent
part:
App. B23
Memorandum of Decision and Order
Division of the Society is funded entirely
by the Legislature of Suffolk County.
The Society is governed by a Board
of —* elected by its general member-
ec At all relevant times, no ‘member of the
Board of Directors was a public official, nor
ween -
/5 Cont.
The governing body of each county.
shall place in operation throughout the
county. . .a plan for providing counsel
to persons charged with a crime.
who are financially unable to obtain
counsel. Each plan shall also provide
for investigative, expert and other
services necessary for an adequate de-
fense. The plan shall conform to one
of the following:
1. Representation by a public defender..--
2. (R)epresentation by counsel furnished
by a private legal aid bureau or
society designated by the county or
city, organized and operated to give
legal assistance and representation
to persons charged with a crime within
the city or county who are financially
unable to obtain counsel.
3. Representation by counsel furnished
pursuant to a plan of a bar associa-
tion.
oe oS aetna
App. B24
Memorandum of Decision and Order
does any public official become a member of
the Society or its Board by virtue of his or
her public office. Authority for the hiring
and firing of attorneys is vested in the
Attorney-in-Charge who, ", i eebcles to the
control and direction of the Board, shall be
responsible for the the Society's legal work.
and shall have charge and supervision of its
offices and branches." (Society's By-Laws,
Article VI, §6.1 (Defendant's Exhibit PP, p. 5)).
,2 Cont.
4. Representation according to a plan
containing a combination of any of
the foregoing. |
/6 Article IV of the Society's By-Laws
™ provides that "(T)he management of
the affairs, property, business and
Operations of the society is vested
in a Board of Directors." (Defendant's
Exhibit PP, p. 2).
- SS Sar
~ wt Ot. hee ee a oe ers *
ee ee eee
App. B25
Memorandum of Decision and Order
The history, constitution and by-
laws, and organization of the Society un-
questionably establish its status as a
private institution. Plaintiff, however,
does not dispute the fact that the Society
is fundamentally a private entity. Rather,
plaintiff asserts two theories commonly applied
to private institutions which, he argues,
conclusively demonstrate that the Society
acted under color of state law: first, that
a private entity may act under color of state
law by conspiring with state officials to
perform an unconstitutional act, Adickes v.
S.H. Kress and Company, 398 U.S. 144, 90 S. Ct.
1598 (1970); Umited States v. Price, 383 U.S.
787. 86 S. Ct. 1152 (1966) and second, that
the state and its officers have so extensively
involved themselves in the administration of
the Society as to render the conduct of the
Society state action., Burton v. Wilmington
Parking Authority, 365 U.S. 715, 81 S. Ct. 856
(1961).
sere cnc ms cesrecetinane
App. B26
Memorandum of Decision and Order
Defendants, on the other hand,
contend that Lefcourt v. The Legal Aid
Society, 445 F. 2d 1150 (2d Cir. 1971) is
dispositive of the state action issue; that
there is no substantial state involvement with
the Society; and that, in any event, there was
no connection between the state activity and
the ailezed wrongful discharge of plaintiff.
Plaintiff's first theory of state
. action, based on the doctrine enunciated by
the Adickes and Price decisions, must fail.
Those cases stand for the proposition that
private persons are liable under §1983 where
it is shown that they conspired with state
officials to deprive a person of federal rights:
Private yer jointly nernec with
state officials in the prohibited action,
are acting ‘under color' of law for pur-
poses of the statute. To act'under color'
of law does not require that the accused
be an officer of the State. It is enough
that he is a willful participant in joint
activity with the State or its agents.
Adickes v. S.H. Kress and Company, supra
at 152, 90 S. Ct. 1605-6, quoting United
States v. Price, supra at 57, Be 7
LL5/7
ee ee ee
_———— an *
~ 2 etn ~~ ee
ee
App. B27
Memorandum of Decision and Order ;
Fundamental to this principle of
state action is the involvement of the state
official in the proscribed activity; it is his
conduct which provides the state action neces-
sary to establish a §1983 claim. Adickes,
supra at 152, 90 S. Ct. 1605. Where no cause
of action is stated against the government
official, the claim against the private person
fails as well. Thus, it is well settled that
where the state official is immune from suit,
private persons cannot be held liable under
§1983 because they did not act in conspiracy
with a state official against whom a valid
claim could be stated. Consequently, the
alleged wrongful action was not done under
color of state law. Sykes v. State of Cali-
fornia Dept. of Motor Vehicles, 497 F. 2d
197, 202 (9th Cir. 1974); Bergman v. Stein,
404 F. Supp. 287, 296 n. 9 (S.D.N.Y. 1975);
Stambler v. Dillon, 302 F. Supp. 1250 (S.D.
N.Y. 1969).
—= ee ee
Ls Se
nat
Direct see ee —
App. B28
Memorandum of Decision and Order
In the instant case, plaintiff
relies upon the actions of judicial defendants
Mauceri and Green to satisfy the requirement
of state participation in the prohibited act.
However, such reliance is unwarranted since
Judge Mauceri and Judge Green did not partake
in the decision to discharge plaintiff. In
dismissing the complaint against these defen-
dants, Judge Weinstein noted the lack of °
evidence to support plaintiff's contention
that these judges sought, or even desired,
plaintiff's dismissal:
No claim .,. has been made out sufficient
on constitutional grounds to support any
judgment against these two judges. All
the evidence shows (is) that they complained
to Legal Aid about aspects of this plain-
tifft's work that they didn't care for. In
each case the complaint was arguably a
justifiable complaint.
It's the duty of judges to observe lawyers
before them, bring to the lawyers' atten-
tion defects that they see in their work
and where they see, to bring it to the
attention of the lawyers or if they are
lawyers, to the Bar Association or others.
th Oe ae re Rotem Pe OO
App. B29
Memorandum of Decision and Order
There isn't the slightest direct evidence
that these se asked for the resigna-
tion or firing of this plaintiff or that
they desired it. I don't see how there's
any basis for liability here in the judges.
I don't even reach the question of whether
they have a valid defense on the ground
that this is part of their judicial duties,
just as treating them as normal civilians
without consideration for their judicial
capacity.
There simply has been no case made out.
The only thing we have is the hearsay and
surmise of the plaintiff, which certainly
doesn't suffice. (Weinstein Transcript,
11/26/76, pp. 267-8).
Hence, the absence of the judges' participation
in the alleged unconstitutional act -- the
wrongful termination of plaintiff -- is fatal
to the claim of state action under the Adickes
and Price conspiracy doctrine. Plaintiff has
failed to establish a valid claim against the
State officials and thereby satisfy the color
of state ear sawitinancek
Plaintiff's second theory of state
/7 As noted previously, where the state
official is shielded by immunity, the
claim against the private person is defeated.
| , App. B30
| Memorandum of Decision and Order
action, based upon the proposition that
"(c)onduct that is formally private may
become so entwined with government policies
or so impregnated with a governmental
character as to become subject to the consti-
tutional limitations placed upon state action."
Evans v. Newton, 382 U.S. 296, 299, 86 S. Ct.
486, 488 (1966), is also deficient. It should
be noted at the outset that, under this
principle,".. . the question of whether ©
ee ee
particular discriminatory conduct is private,
on the one hand, or amounts to "state action"
on the other hand, frequently admits of no
easy answer. Moose Lodge No. 107 v. Irvis,
ee aes
407 U.S. 163, 172, 92 S. Ct. 1965, 1971 (1972).
j7 Cont.
Here, the case is an even stronger one
: since Judge Weinstein dismissed the com-
plaint against the judicial defendants
on the merits. |
App. B31
\ Memorandum of Decision and Order
It is "(o)nly by sifting facts and weighing
circumstances (that) the nonobvious involve-
’ ment of the State in private conduct can be
attributed its true significance." Burton v.
Wilmington Parking Authority,’ 365 U.S. 4424
722, 81S. Ct. 856, 860 (1961).
Instrumental to a finding of state
action under this doctrine is what is commonly
referred to as the "nexus requirement": the
state must be involved with the activity that
caused the injury. This prerequisite was ex-
|
pressed by the court in Powe v. Miles, 407
|
| F. 2d 73, 81 (2d Cir. 1968):
(T)he state must be involved not simply
| with some activity of the institution
alleged to have inflicted injury upon
a plaintiff but with the activity that
caused the injury. aghabges the point
another way, the state action, not the
private action, must be the subject of
complaint.
eS ee a ed ee SO as
Accord, Jackson v. Metropolitan Edison Co.,
419 U.S. 345, 351, 95 S. Ct. 449, 453 (1974);
Moose Lodge No. 107, supra, at 173, 92 S. Ct.
App. B32
. Memorandum of Decision and Order
1971; Weise v. Syracuse University, 522 F. 2d
397, 405 (2d Cir. 1975).
Plaintiff sets forth the following
factors to establish state action: the Criminal
Division of the Society receives’ its funding
exclusively from governmental sources; the
Society serves a public function by fulfilling
the state's constitutional obligation to pro-
vide counsel to indigent persons accused of a
crime; and, defendant Mauceri, in his capacity
as administrative judge of the District Court,
assisted the Society in securing funding
in obtaining the services of a Spanish inter-
preter, and in decreasing its workload by
adjusting the court's assignment policy. These
factors share the common fatality of bearing
no relationship to the termination of plain-
tiff. Consequently, the absence of the required
*
/8 In discussing the budget for the District
~ Court during his annual address before the
County Legislature in 1971, Judge Mauceri
rejuested funds for the Society.
a
App. B33
Memorandum of Decision and Order
"nexus" between the state's involvement and
the challenged act negates a finding of state
action.
It is well established that the
mere receipt of money from Lies seni, without
a nexus between the funding and the activity
under attack, is insufficient to deem the ©
recipient an agent or instrumentality of the
state. Weise, supra at 405; Barrett v. United
Hospital, 376 F. Supp. 791, 801-2 (S.D.N.Y.
1974), aff'd, 506 F. 2d 1395 (2d Cir. 1974);
Grossner v. Trustees of Columbia University
in the City of New York, 287 F. Supp. 535
(S.D.N.Y. 1968). In Lefcourt v. Legal Aid
Society, supra, the Court of Appeals for the
Second Circuit held that the dismissal of an
attorney by his employer, the Legal Aid Society
of the City of New York, did not constitute
action taken under color of state law. The
court concluded that the receipt of government
funds by the Society was not decisive of the
ne ee a er | ee 8 6 nes «et
App. B34
Memorandum of Decision and Order
State action issue because Lefcourt failed to
demonstrate that the government controlled the
Society's employment practices:
Lefcourt has failed to establish that
the City or any other govertmental sub-
division or agency had any right what-
ever to intervene in any significant
way with the affairs of the Society with
respect to its employment practices or
otherwise Thus, .... it cannot be said
that the Society acts under color of
State law by virtue of the financial
and other benefits which it receives from
the City and various other governmental
agencies, courts and subdivisions, since
there has been no sufficient showing of
governmental control, regulation or inter-
ference with the manner in which the
Society conducts its affairs (footuote
omitted). Id. at 1155. -
The argument that the Society's
conduct constitutes state action because of the
public function which the Society fulfills in
providing counsel for indigent criminal defend-
ants as mandated by the sixth amendment was
also rejected in the Lefcourt decision. The
court noted that the representation of persons
accused of crimes is traditionally performed
by private individuals and hence does not
Oe et ee Ri = i eR ee
App. B35
Memorandum of Decision and Order
constitute an essential state function:
Activities which are constitutionally
essential to the functioning of the
judicial process, including the representa-
tion of indigent persons accused of criminal
activity, are doubtlessly among the most
significant functions that any agency,
public or private, might be called on to
perform. However, the representation of
persons accused of crimes, far from being
the function of any agency which "tradi-
tionally serves the community" is normally
performed for’and by private persons. ...
The City has sought to have the Society
function under similar circumstances.
Under the contract, the City retains few
controls over the Society, and the Society's
obligation under the contract is to its
clients and not to the City. Id. at 1156.
Nor were the acts of judicial defend-
ants Mauceri and Green so related to the dis-
charge of plaintiff as to render the conduct
of the Society state action. As noted earlier,
Judge Weinstein found that neither Judge Mauceri
nor Judge Green dictated or requested the termi-
nation of plaintiff. Rather, as indicated
above, their participation was chiefly confined
to criticizing plaintiff for his errors of
judgment and his. misdeeds, and to reporting
elite Pt Sn ee te ae elite eel athe wantin _
App. B36
Memorandum of Decision and Order
these incidents to his superiors. Although
Judge Mauceri suggested in February 1972 that
plaintiff should be transferred, see pp. 9-10
infra, both Boyle and Middlemiss refused to
do so. The’-record reveals that the only sub-
stantial connection between the actions of the
judicial defendants and plaintiff's discharge
was Judge Mauceri's decision to bar plaintiff
from the courthouse holding pen. Defendant
Middlemiss acknowledged that one of the reasons
for plaintiff's removal was that his. utility
to the Society was diminished by his exclusion
from this area.
Certainly, the presence of one link
connecting the state activity with the decision
to discharge plaintiff is insufficient under
the facts of this case to render the Society's
conduct attributable to the State. The
evidence amply demonstrates that the decision
to dismiss plaintiff resulted from the
independent determination of the Society and
i elisa in sth li ilalin
bk ne ee ee Oe ees va ee ee ae
App. B37
Memorandum of Decision and Order
and was grounded upon plaintiff's entire
course of conduct during the twelve month
period of his employment at the District
Court Bureau. Plainly stated, the facts of
this case do not warrant the ‘finding that
. . the state action, not the private
action, (is). . .the subject of the complaint."
/9
Powe v. Miles, supra at 81.
The absence of state action renders
it unnecessary to treat plaintiff's claim
/9
Had plaintiff's claim been one of racial
discrimination, the state-private relation-
ship might have triggered a finding of
state action. The Second Circuit has
traditionally applied different standards
of state action to §1983 claims, depending
on the offensiveness of the alleged mis-
conduct and the constitutional guarantee
in dispute. This principle was recently
reaffirmed in Weise, supra at 405:
We must. . .look to the nature of
the right infringed as well as the .
extent of the state's involvement.
. In both Grafton v. Brooklyn Law
School and Powe v. Miles, we expli-
citly noted that our findings of no
state action might be different if
the cases involved discriminatory
App. B38
Memorandum of Decision and Order
that the procedural aspects of his dismissal
violated the due process clause of the four-
teenth amendment.
DEPRIVATION OF CONSTITUTIONAL RIGHTS
Even assuming arguendo*that the
jurisdictional requisite of action taken under
color of state law is present, plaintiff has
failed to establish a case on the merits.
/9 Cont.
admissions policies. Moreover,
we have recognized the existence
of a "double standard" in state
action - "one, a less onerous test
for cases involving racial discrimi-
nation, and a more rigorous standard
for other claims," Jackson v. The
Statler Foundation. . . (citations
and footnote omitted).
——
App. B39
Memorandum of Decision and Order
Plaintiff focuses upon three episodes
to support the claim that his dismissal was
predicated on the exercise of constitutionality
protected activity: the McElhiney Affirmation;
the subpoena incident; and the pen incident.
Each of these events involved plaintiff's role
as an advocate of the rights of his clients.
The purpose of the subpoena was to obtain records
for cross-examination of witnesses who testified
against his client; the purpose of the motion
to dismiss the McElhiney case for failure to
prosecute was to vindicate the right of his
client to a speedy trial; and the purpose of
providing his client with a pen was to enable
the latter to communicate with his attorney
and with the court. Therefore, plaintiff argues,
by basing his dismissal on these three incidents,
plaintiff was unconstitutionally punished for
exentcising his right of free speech and for
exercising the rights of his clients to a fair
trial and to adequate legal representation.
OO 5 ee
———
App. B40
Memorandum of Decision and Order
It is well settled that the termina-
tion of a public employee may not be grounded
upon the exercise of constitutionally protected
activity. The Supreme Court reaffirmed this
estabiished principle in Perry et al. v.
Sindecmann, 408 U.S. 593, 597, 92 S. Ct. 2694,
2697 (1972):
For at least a quarter-century, this
Court has made clear that even though
a person has no "right" to a valuable
governmental benefit and even though
the government may deny him the benefit
for any number of reasons, there are
some reasons upon which the government
may not rely. It may not deny a benefit
to a person on a basis that infringes
his constitutionally protected interests-
especially, his interest in freedom of
speech. For if the government could
deny a benefit to a person because of
his constitutionally protected speech or
associations, his exercise of those free-
doms would in effect be penalized and
inhibited. This ‘would allow the govern-
ment to "produce a result which (it)
could not command directly." Speiser
v. Randall... Such interference with
constitutional og is impermissible.
(citations omitted).
Therefore, the primary issue a court
must resolve when faced with a claim of un-
constitutional dismissal of a public employee
atti —eo
App. B41
Memorandum of Decision and Order
is whether the terminatiun was based upon
conduct that is protected by the Constitution.
Perry, supra at 598, 92 S. Ct. 2698. Or, to
phrase it in other terms: was the employee
discharged for the assigned reasons or did
the real motive involve constitutionally
protected activity? Shaw v. Board of Trustees
of the Frederick Community Hospital, 549°F.’ 2d
929, 933 (4th Cir. 1976); Hetrick v. Martin,
480 F, 2d 705, 707 (6th Cir. 1973), cert.
denied, 414 U.S. 1075, 94S. Ct. 592. (1973).
In order to prevail, the employee must prove
that the decision to dismiss was, in fact, made
in retaliation for the exercise of shis consti-
tutional rights. When a plaintiff has been
given full opportunity to establish that the
discharge was a reprisal, and he fails in his
proof, the discharge must stand. Calo v. Paine,
521 F. 2d 411, 413 (2d Cir. 1975).
This court is convinced that plain-
tiff's termination was in no manner based
Sess
aia
App. B42
Memorandum of Decision and Order
upon the exercise of his first amendment
right of free speech or upon the assertion
of the sixth amendment rights of his clients.
Plaintiff offers no proof that the Society's
actions were motivated by a desire to impede
or interfere with his representative duties.
At no time during his employment was plaintiff
ever instructed how to try a lawsuit or how
to defend an indigent client whom he was
assigned to represent. Nor was plaintiff ever
restricted by his supervisors in the execution
of his duty to represent an indigent criminal
defendant within the bounds of the law.
Plaintiff's claim, though theoreti-
cally correct, is unsupported by the evidence.
A study of the record reveals that the decision
to discharge plaintiff was not made because
he was attempting to obtain evidence useful
in cross-examination, or seeking to vindicate
his client's right to a speedy trial, or
attempting to communicate with a client.
— —— <= 4
or E. - =
App. B43
Memorandum of Decision and Order
Rather, these episodes played a part in the
decision to terminate plaintiff because they
demonstrated his inability to adhere to
elementary rules and procedures of the Society
and the court. These occurrences, together
with many others, compel the finding that
plaintiff was removed for his failure to
function within the organizational framework
of the Society. ‘er
Lefcourt v. The Legal Aid Society,
312 F. Supp. 1105 (S.D.N.Y. 1970), aff'd,
supra, factually similar.to the instant case,
is particularly noteworthy, thee. former
Legal Aid attorney, Gerald B. Lefcourt,
brought an action against the Society under
42 U.S.C. §1983, claiming that his termination
was based solely on the exercise of his first
amendment rights. Plaintiff contended that
he was discharged because of critical state-
ments he had made to fellow attorneys about
the Society and because of his role in the
App. B44
Memorandum of Decision and Order
organization of "The Association of Legal
Aid Attorneys." As in the case at bar, the
court found that the alleged unconstitutional
conduct constituted only one piece of a large
puzzle -- the Lefcourt record revealed a
history of frictional episodes between Lefcourt
and his superiors as well as a failure by
Lefcourt to follow the Society's instructions.
The court was convinced by the evidence that
Lefcourt was not discharged solely for the
exercise of his first amendment rights but,
like plaintiff herein, was dismissed because
his services were not in harmony with the
welfare of the Society:
Without questioning the good faith of
Lefcourt's efforts to achieve the
crucial and important objective of ©
improving the quality of defense of
indigents in the courts in which he
worked, I find that the Society, also
as in good faith and with equal
zeal for the welfare of its clients,
discharged plaintiff lawfully. In
reaching this determination I have
concluded that Lefcourt was discharged
as the result of an amalgam of acts of
which his statements constituted a
-_
a
i
App. B45
Memorandum of Decision and Order
part, but only a part, and that his
total behavior during the course of
his employment with the Society was
such as to permit the Society to
decide in good faith that his service
was not in harmony with the welfare
of the organization. (footnotes omitted).
Lefcourt v. Legal Aid Societyet al.,
31Z F. Supp. 1107.
Plaintiff's reliance on Pickering
v. Board of Education of Township High School
District 205, Will County, Illinois, 391 U.S.
563, 88 S. Ct. 1731 (1968), is misplaced. In
fact, Pickering stands for the proposition
that in certain circumstances -- which are
present in the instant case --- the exercise
of constitutional rights may be considered
in the termination of employment. In Pickering,
a teacher was dismissed for writing and publish-
ing a letter which criticized the School Board's
treatment of proposals to raise new revenue for
the, schools. Illinois courts affirmed Picker-
ing's discharge, but the Supreme Court reversed,
holding that the dismissal violated Pickering's
first amendment right to free speech. The
App B46
Memorandum of Decision and Order
f °
Court refused to adopt a hard and fast rule
that public statements by employees may never
furnish the grounds for their termination:
j : At the same time it cannot be gainsaid
that the State has interests as an
. employer in mogucetceg the speech of
its employees that differ significantly
from those it possesses in connection
with regulation of the speech of the
citizenry in general. e problem in
J any case is to arrive at a balance
between the interests of the teacher,
as a citizen, in commenting upon matters
; of public concern and the interest of
the State, as an employer, in promoting
the seo ocoemged 4 of the public services
it performs through its employees. Id.
at 568, 88 S. Ct. 1734 5. BS
In the course of its opinion, the
Court delineated the couitervilling interests
of the state which, if sufficiently strong,
may provide the basis for the dismissal of the
employee. For example, where the statements
threaten to disrupt harmony among coworkers,
to impede the proper performance of the employee's
duties, or to interfere with the systematic amd
orderly operation of the schools, the employee's
first amendment rights may be outweighed by
App. B47
Memorandum of Decision and Order
the interest of the State". . .in promoting
the efficiency of the public services it
performs through its employees." Id. at
568, 88 S. Ct. 1735.
These factors are unquestionably
present in the case at bar. It has previously
been shown how plaintiff's conduct interfered
with the orderly operation of the Society and
impeded ‘the proper performance of plaintiff's
a duties. Thus, even if his removal were ,based
in part on the exercise of free speech, or
the assertion of his clients' sixth amendment
rights, such reliance by the Society would be
permissible. The Court's elucidation in
Chitwood v. Feaster, 468 F. 2d 359, 361
i (4th Cir. 1972) of when a teacher's statements
cannot shield him from dismissal is particularly
apposite to plaintiff's actions:
A college has a right to expect a
teacher to follow instructions and
to work cooperatively and harmoniously
with the head of the Department. If
one cannot or does not, if one undertakes
~~ we = aa
App. B48
Memorandum of Decision and Order
to seize the authority and prerogatives
of the department head, he dba not
immunize himself against loss of his
position simply because his noncoopera-
ggg aggressive conduct are verba-
zed.
See also Sprague v. Fitzpatrick,
546 F. 2d 560 (3rd Cir. 1976) (Court applied
Pickering to sustain the discharge of a First
Assistant District Attorney who had accused
his superior of not telling the truth);
Lefcourt v. The Legal Aid Society, 312 F. Supp.
1111-14 (Court applied Pickering and held that
Statements by a Legal Aid attorney could form
the basis of his dismissal since they had a
definite impact on the internal operation of
the Society and threatened to disrupt harmony
among coworkers).
Plaintiff's claim that he was denied
due process because the reasons proferred by
defendants for his dismissal were arbitrary
and irrational lacks merit. The evidence
more than adequately supports defendants' _
: Kresge seae>. a
:
r
App. B49
Memorandum of Decision and Order
contention that plaintiff's termination was
based upon his inability to adhere to |
organizational procedures and to develop
amiable working reltionships with his colleagues.
In Simard y. Board of Education of the Town of
Groton, 473 F. 2d 988 (2d Cir. 1973), the
court rejected a similar claim by a nontenured
teacher whose one year contract was not renewed
by the Superintendent of Schools. The Board
of Education conducted a hearing to review
the Superintendent's decision and, having
found that Simard's infractions of the rules
and regulations were not conducive to an ;
effective administration of the school system,
upheld the dismissal. Simard contended that
the reasons proferred for the nonrenewal of
his contract were unrelated to the legitimate
educational interests of the school and hence
denied him due process of law. The court
rejected plaintiff's claim and held that the
infractions ".. .are not so minimally related
ee ae ee i
.~. » “fk Oe! Oe _- ~<a
. :
App. B50
Memorandum of Decision and Order
to the effective performance of a high school
teacher as to be unconstitutionally capricious
or arbitrary . ..-.A school system may
justifiably demand more from its teachers
than competent classroom instruction; a chronic
refusal to comply with reasonable administra-
tive obligations can surely have a disruptive
effect: on students, fellow teachers and
administrators alike.. . ." Id. at 994-5. As
in Simard, plaintiff's infractions of the.
regulations of the Society and his inability
to work with colleagues were not so unrelated
to the interests of the Society as to be
capricious or irrational.
CLAIM OF RESERVE INSURANCE COMPANY
Plaintiff Reserve Insurance Company
("Reserve") seeks a declaratory judgment
stating that it is not contractually bound
to defend or indemnify the Society, the
defendant Middlemiss or defendant Ralph
Costello in the consolidated action decided
App. B51
Memorandum of Decision and Order
above. Since Graseck has failed to establish
a cause of action, the only issue to be resolved
is Reserve's obligation to defend. It is the
position of Reserve that "., . .the acts com-
plained of in Graseck are not covered under
Reserve's policy of liability insurance issued
to the National Legal Aid and Defender Associa-
tion (with subcertificate to Legal Aid Society
of Suffolk County, Inc.)" (Reserve Trial
Memorandum, p. 1). More specifically, Reserve
argues that the policy insures the Society and
its members against legal malpractice actions
brought by its clients, and not clnims, such
as Graseck's, which emanate from the termina-
tion of an employer-employee relationship.
A, plain and reasonable reading of the insurance
ir | contract, which is unambiguous in its terms,
convinces this court that Graseck's action does
not fall within the coverage of the policy.
The policy states in pertinent part
that:
App. B52
Memorandum of Decision and Order
This Insurance is to indemnify. . .
any claim or claims for breach of
professional duty as lawyers which
may be made against them. .. by
reason of any negligent act, error,
or omission. . . in their professional
capacity as ‘lawyers acting as Tegal
a or defenders as define n Article
T of the Bylaws of the National Legal
Aid and Defender Association. (emphasis
added). (Exhibit A to Reserve's Trial
Memorandum, p. 1).
Section 1.2 and 1.3 of Article I of the
Society's By-Laws define "legal aid" and
"defender" as follows:
1.2 The terms "legal aid". . . mean
the rendering of legal services
in civil matters to persons unable
to employ counsel for lack of means,
either in the nature of consultation
and advice or in the nature of
representation in court. .
1.3 The terms defender. . . mean
the rendering of legal services
to persons unable to employ counsel
i ' for lack Of means who are accused
% Of a crime, either in the nature of
) consultation and advice or in the
nature of representation in court...
# (Exhibit C to Reserve's Trial Memo-
‘f ' randum, p. 5).
,
Thus, the language of the contract and the
bi terms of the By-Laws which it incorporates
App. B53
Memorandum of Decision and Order
clearly indicate that the claim must be one
for misfeasance or nonfeasance in the rendering
of legal services to indigent clients.
The obligation of an insurance
company to defend an action brought against
the insured by a ‘third party’ is determined
by the allegations of the complaint: if the
complaint upon its face alleges facts which
fall within the coverage of the policy, the
insurer is obligated to assume the defense
of the action. Rochester Woodcraft Shop, Inc.
v. General Accident Fire and Life Assurance
Corp., Ltd., 35 App. Div. 2d 186, 187, 316
N.Y.S. 2d 281, 263 (Fourth Dept. 1970);
Gallivan v. Pucello, 68 Misc. 2d 713, 715,
328 N.y.S. 2d 37, 40 (Sup. Ct. Onondaga County,
1971), aff'd, 40 App. Div. 2d 749, 338 N.Y.S.
2d 411 (Fourth Dept. 1972). The gravamen of
Graseck's complaint is that his dismissal
was unconstitutionally predicated on the ex-
ercise of his first amendment right and the
App. B54
Memorandum of Decision and Order
sixth amendment rights of his clients. The
complaint does not contain factual allegations
that the Society, defendant Middlemiss or
defendant Costello were negligent while ren-
dering services to indigent clients. The
averments that defendants dismissed him
(Graseck) "for properly performing his duties
as an attorney and specifically asserting his
clients' constitutionally protected rights... n
and that "by establishing. . .a pattern of
judicial interference. . .(defendants) 7
intended to discriminate against. . .plaintiff
. - in prejudice of. . . the rights of
indigents represented by Suffolk Legal Aid",
(Plaintiff's Complaint dated August 7, 1974,
pars. 33, 38), do not, as defendants contend,
transform the action into one arising out of
the negligent representation of clients.
Since Graseck's claim is not embraced by the
terms of the policy, Reserve had no obligation
to defend the Society, defendant Middlemiss
—_
~/
App. B55
Memorandum of Decision and Order
and defendant Costello.
CONCLUSION
For the reasons cited above, the
complaint in Graseck v. Mauceri (74-C-1157)
is dismissed and judgment is granted for
defendants Legal Aid Society of Suffolk County,
New York and John F. Middlemiss, Jr. In
Reserve Company v. Mauceri (74-C-1559),
plaintiff is entitled to a declaratory |
judgment that it is not contractually bound
to defend or indemify the Legal Aid Society
of Suffolk County, New York, John F. Middle-
miss, Jr. and Ralph Costello. ;
The Clerk of the Court is directed
to enter judgment in accordance with this
memorandum of decision and order.
/s/ Jacob Mishler
WeiGe De Ve
App. Gl (a)
UNITED STATES COURT OF APPEALS
for the .
SECOND CIRCUIT
At a stated Term of the United States
Court of Appeals for the Second Circuit,
held at the United States Courthouse in the
City of New York, on the seventh day of
oy one. thousand nine hundred and seventy-
eight
Present:
HON. WILFRED FEINBERG
HON. WALTER R. MANSFIELD
HON. JAMES L. OAKES a
Circuit Judges to
ARTHUR V. GRASECK, JR.
Plaintiff- -Appellant,
v.
ANGELO MAUCERI, individually and as
Administrative Judge of the District
Court of Suffolk Saualle EDWARD U. 77-7572
GREEN, JR., individually and as Judge
of the District Court of Suffolk County;
JOHN F. MIDDLEMISS,JR., individually and
as At torney-in-Charge, LEGAL AID SOCIETY
i , OF SUFFOLK COUNTY, NEW YORK; RALPH
i COSTELLO, individually and as Attorney-
r in-Charge of the Criminal Division of
the tenal Aid Society of Suffolk County,
New York; LEGAL AID SOCIETY OF SUFFOLK
. COUNTY, NEW YORK;
! Defendants-Appellees.
ad
App. C1(b)
Appeal from the United States District
Court for the Eastern District of New York
This cause came on to be heard on the
transcript of record from the United States
District Court for the Eastern District of
New York, and was argued by counsel.
ON CONSIDERATION WHEREOF, it is now
hereby ordered, adjudged, and de@reed that
the order of said District Court be and it
hereby is affirmed in accordance with the
opinion of this court with costs to be taxed
against the appellant.
A. DANIEL FUSARO,.
Clerk >
-
By /s/ Sara Piovia
Deputy Clerk
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