Rory Lancman, Monica Corbett, Plaintiffs v. Bill De Blasio, City of New York, Alliance for Flushing Meadows-Corona Park Corporation Defendants

155577/2016

Defendants moved to dismiss plaintiffs' complaint arguing the claims were barred by the statute of limitations in this suit arising from the creation of the Alliance for Flushing Meadows-Corona Park—an entity overseeing land use deals entered into by N.Y.C. related to the park. Plaintiffs argued the Alliance's license with the city's Parks and Recreation Department, its by-laws violated Administrative Code §18-137(b), and funding structure violated City Charter §109. Defendants alleged a four month statute of limitations applied, arguing the substance of the action was an Article 78 proceeding, despite relief being sought was declaratory. Plaintiffs alleged the catch-all six year limitations period applied as they could not have brought this suit as an Article 78, noting the statute of limitations renewed each day as defendants continuously violated the law. The court ruled facts of the suit did not support defendants' conclusion the suit could have been brought as an Article 78 as it challenged a governmental body's action or determination, noting there was no determination made by the Alliance as plaintiffs sought a declaration the current by-laws and funding scheme violated the law. Thus, the six year limitations period applied, plaintiffs' claims were timely, and dismissal was denied.Read Summary of Decision

Defendants' motion to dismiss plaintiffs' complaint on the ground that plaintiffs' claims are barred by the statute of limitations is denied.

This action arises out of the creation of the Alliance for Flushing Meadows-Corona Park (the "Alliance"). This entity oversees certain land use deals entered into by the City of New York related to Flushing Meadows-Corona Park, the largest park in Queens County, New York. Plaintiffs maintain that the Alliance's license agreement with the City's Parks and Recreation Department and its by-laws violate NYC Administrative Code §18-137(b), which requires that there be at least one voting board member from each overlapping City Council district and one representative for every two abutting districts. Plaintiffs assert that the park overlaps four City Council districts, including the district represented by plaintiff Lancman (the 24th District), but his district has no representation.

Plaintiffs also insist that the Alliance's funding structure violates New York City Charter

§109 because the payments received from the United States Tennis Association (the "USTA")1 do not go to the City's general fund as required by this charter section. Plaintiffs claim that they first learned of the these issues when plaintiff Lancman received a copy of the Alliance's by-laws on January 6, 2016 and that the instant complaint was filed on July 26, 2016 seeking declaratory and injunctive relief.

Defendants claim that a four-month statute of limitations apply and that this period began on December 15, 2015 at a publicly-noticed Board meeting where the Alliance's by-laws were discussed and the license agreement was approved. Defendants argue, in the alternative, that the statute of limitations began to run on January 6, 2016, when plaintiff Lancman received a copy of the by-laws.

Defendants insist that a four-month statute of limitations applies because the substance of this action is an Article 78 proceeding even though the relief sought is declaratory. Defendants further argue that plaintiffs' claim regarding improper funding is time-barred because plaintiffs should have known about the funding arrangement as early as November 2013, when the Alliance was incorporated.

In opposition, plaintiffs insist that the catch-all six-year statute of limitations under CPLR 213(1) applies because they could not have brought this action as an Article 78. Plaintiffs also insist that the statute of limitations renew each day because the defendants are continuously violating the law. Plaintiffs further assert that the Alliance is a private, non-profit entity and not a body or officer pursuant to Article 78 and, therefore, the four-month limitations period is inapplicable.

"On a CPLR 3211 motion to dismiss, the court will accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Nonnon v. City of New York, 9 NY3d 825, 827, 842 NYS2d 756 [2007] [internal quotations and citation omitted]).

"[W]hen the proceeding has been commenced in the form of a declaratory judgment action, for which no specific Statute of Limitations is prescribed, 'it is necessary to examine the substance of that action to identify the relationship out of which the claim arises and the relief sought' in order to resolve which Statute of Limitations is applicable" (New York City Health & Hospitals Corp. v. McBarnette, 84 NY2d 194, 200-01, 616 NYS2d 1 [1994] quoting Solnick v. Whalen, 49 NY2d 224, 229 425 NYS2d 68 [1980]). "Only if there is no other form of proceeding for which a specific limitation period is statutorily provided may the six-year catch all limitations period provided in CPLR 213(1) be invoked" (id. [internal quotations and citation omitted]).

Defendants insist that this action could have been brought as an Article 78 proceeding because it challenges a governmental body's action or determination. However, the facts of the instant lawsuit do not support that conclusion. Defendants are unable to identify a specific determination made by the Alliance that could be raised in an Article 78 proceeding.

Merriam-Webster defines determination as "the resolving of a question by argument or reasoning" (Merriam-Webster Online Dictionary, determination [https://www.merriamwebster. com/dictionary/determination]). Defendants' suggested characterization of a determination — adoption of the by-laws of the Alliance — would stretch this definition beyond all reasonable interpretation. Adopting by-laws does not resolve a question by argument or

reasoning. Adopting by-laws is not a determination. Besides, the plaintiffs are challenging the inherent structure and funding scheme of the Alliance rather than a distinct, discrete finding made by the Alliance.

Defendants' reliance on cases such as Solnick is similarly unavailing. In Solnick, petitioner sought review of "a determination adjusting Medicaid reimbursement rates" (Solnick, 49 NY2d at 226 [emphasis added]). Here, there was no determination made by the Alliance. Instead, plaintiffs seek a declaration that the current by-laws and funding scheme of the Alliance violate the law. That is not in the nature of an Article 78 proceeding and therefore, a six-year statute of limitations applies (see Lacks v. City of New York, 201 AD2d 309, 311 607 NYS2d 32 [1st Dept 1994]).

Plaintiffs further assert that the Alliance maintains its structure and funding scheme that purportedly violates the law. This constitutes a continuing violation for purposes of the statute of limitations. In any event, plaintiffs' claims are timely.2

Accordingly, it is hereby

ORDERED that defendants' motion to dismiss plaintiffs' complaint is denied; and it is further

ORDERED that defendants are directed to file an answer pursuant to the CPLR. The parties are directed to appear for a preliminary conference on April 4, 2017 at 2:30 p.m.

This is the Decision and Order of the Court.

Dated: February 16, 2017

New York, New York

Arbitration awards are, by design, difficult to vacate. But what happens when one of the arbitrators who entered the award is later convicted of a crime related, at least to some extent, to an issue in the arbitration. In Litton v. Litton, the Appellate Division addressed this interesting but (hopefully) uncommon occurrence.

In Litton, plaintiff and defendant were married in 1982 and had one child. In 2008, the Family Part entered a judgment of divorce and ordered them to share joint custody of their son. They were also directed to proceed to arbitration before a rabbinical panel, or Beth Din, which they did. The panel, which was comprised of three rabbis, entered an award requiring the husband to pay the wife $5,000 per month until he gave her a Get. (As the Appellate Division explained, a Get is a "written document a husband must obtain and deliver to his wife when entering into a divorce. Without a Get, a wife cannot remarry under Jewish law.") Once the wife received the Get, the husband's monthly support obligation would be reduced to $3,500. The husband was also ordered to pay $20,0250 in arrears, $100,000 in the wife's legal fees, and a fine of $250,000 for "his refusal to disclose information about the couple's joint funds."

Several months later, the wife moved to enforce the award and, apparently, have the husband jailed for not complying with it. The Family Part denied the request and found that the husband was not capable of complying with the support order.

Four years later, the Family Part reduced the husband's support obligation from $5,000 per month to $23 per week. Around the same time, in a "wholly unrelated matter," one of the arbitrators on the panel was charged with, and apparently later convicted of, "criminal conspiracy to threaten and coerce Jewish husbands to give Gets to their wives." The husband moved to vacate the arbitration award, arguing that, in light of these charges against one of the rabbis on the panel, "the award was the product of corruption." The trial court denied the motion, holding that there was no causal connection between the arbitration in 2008 and the charges against the rabbi five years later, and that there were two other rabbis on the panel who were not charged as part of the conspiracy. The husband appealed.

The Appellate Division affirmed the trial court's decision. It observed that New Jersey favors arbitration and therefore a court will only vacate an arbitration award if (1) it is "procured by corruption, fraud, or other undue means," or (2) the court finds partiality, corruption, or misconduct by the arbitrator that prejudices a party's rights. The husband argued that, based on the Family Part's decision that he could not afford to pay $5,000 per month, its subsequent reduction of the support obligation to $23 per week, and the rabbi's conviction, the court could "'connect the dots' and infer the arbitration award in the parties' case was fraudulently procured or corrupt." The Appellate Division disagreed, citing favorably the trial court's conclusion that "the dots [were] too far away and unrelated." Accordingly, the Appellate Division affirmed the trial court's decision that the husband could not satisfy his burden of showing that the arbitration award was the product of fraud or corruption.

The Appellate Division also rejected the husband's argument that the rabbi had a duty to disclose "the lengths he would go to to 'assure wayward husbands granted GETS to their wives.'" The court noted that an arbitrator is required to "disclose to all parties any financial or personal interest, and any existing or past relationship with any of the parties." If the arbitrator fails to do so, then a court may vacate a subsequent award. But, in Litton, the Appellate Division held that the husband could not establish that the rabbi had any personal or financial interest in the award or that he was even "unlawfully coercing husbands to give their wives Gets at the time plaintiff and defendant engaged the rabbinical panel." Accordingly, the arbitrator did not breach any disclosure obligation and the arbitration award could stand.

Betsy Combier

Manhattan lawyers knew Judge Joan Kenney was “confrontational,” “abusive” and “outright nasty” — and said so on a judge-ranking Web site, The Robing Room.

One fed-up attorney went further, complaining to the state Commission on Judicial Conduct that she was “rude” and failed to display “judicial temperament” during a settlement conference.

The city Bar Association publicly branded her with a damning “Not Approved” rating in 2010, saying she failed “to affirmatively demonstrate the requisite qualifications” to sit in judgment of others.

And last year, she was “universally not respected” by a Democratic screening committee that blocked her bid to run for a seat on the state Supreme Court, a panel member told The Post.

But none of the red flags affected her seat on the bench — or even her 2009 promotion to acting Supreme Court justice, for which she scored her first annual renewal just two months after being deemed unfit by the Bar Association.

That all ended on May 9, when Kenney showed up to court an hour late and disheveled, then erupted in fury at reporters taking notes in the public gallery.

“You can’t write everything I say. I think out loud,” she ordered. “In this courtroom, I’m the boss.”

She was demoted to handling lesser matters in Manhattan Civil Court — to which she was elected in 2000 and 2010 — and her conduct cost her the $13,600-a-year salary differential between the two jobs.

It also shone a light on the political machinations that turn lawyers into judges in the Big Apple, where the road to the bench has long been shadowed by suspicions that corrupt pols were putting unqualified hacks on the bench.

“There’s bad apples in any industry, and everybody knows who those judges are. There are several names you can say and the whole room will groan,” said high-profile Manhattan lawyer Elizabeth Eilender, who represented Atlanta Hawks hoopster Thabo Sefolosha in a false-arrest suit against the NYPD. “Even when outrageous behavior is brought to the state’s Commission on Judicial Conduct, nothing gets done. It’s not until the press shines a bright spotlight on this type of conduct that anything is done.”

New York City has more than 400 judges who are selected locally, according to the state Office of Court Administration.

Voters choose the judges for the Supreme, Surrogate’s and Civil courts, while the mayor appoints judges to the Family and Criminal courts and also fills interim vacancies in Civil Court.

For the elected judgeships, candidates must win nomination through a primary election, except for Supreme Court, where candidates are chosen through a judicial nominating convention.

But given the Democratic Party’s overwhelming dominance in every borough except Staten Island, “the ‘election’ of a judge is often determined de facto at the nomination stage,” according to a 2014 guide by the city Bar Association. “Political considerations, including a history of political party activity, contributions to political party organizations and acquaintance with political party officials, may influence the selection process to varying degrees,” the report notes.

That influence has been an issue since the at least the 1800s, when a crisis of confidence in the legal system led voters to amend the state Constitution in 1869 and ratify the election of judges, who at the time were all appointed to the bench.

The change helped sweep from power William “Boss” Tweed’s nakedly corrupt Tammany Hall political machine, with the bloody “Orange Riot” leading to its virtual destruction in the election of 1871.

But any hope that politics no longer corrupted the selection of city judges was irreparably dashed by the mid-2000s scandal that brought down Brooklyn Democratic boss and longtime Assemblyman Clarence Norman for extorting $10,000 from a judicial candidate.

During a 2007 trial — one of three at which Norman was convicted of crooked schemes — former Brooklyn Civil Court Judge Karen Yellen told jurors how the “King of Brooklyn” put the screws to her campaign manager, Scott Levenson, while negotiating his party’s endorsement of her re-election bid.

The deal included a $1,000 donation to the campaign of a Norman political ally, then-Assemblywoman Adele Cohen, and $9,000 to crony William Boone for a get-out-the-vote operation.

“Ultimately, the words he used were, ‘We will dump her,’ ” Yellen testified about the July 2002 shakedown inside Brooklyn’s Democratic Party headquarters on Court Street.

“He was very angry. It was very, very unpleasant. He rose up out of his seat, leaned across the desk and was in Scott’s face.

“I know I was shocked because the way it was done was not the way one expects it to happen — unprofessional and astonishing,” she added.

Yellen broke down in tears while describing the ultimate results of the 2002 Democratic primary. “I lost,” she said. “And I was out of a job.”

But she admitted forking over $9,000 a day after the defeat — in the vain hope it would help buy her another seat on the bench.

“I thought that possibly I could go up to the Supreme Court,” she said. “That I could get the nomination from the party if I paid the monies that were demanded of me, that I could save my career.”

Norman wound up serving nearly four years in the slammer for shaking down Yellen, soliciting illegal contributions from a lobbyist and stealing $5,000 in campaign funds, before being paroled in 2011. He and Yellen both declined to comment.

Kenney’s since-rescinded promotion to acting Supreme Court justice illustrates another way politics can affect the makeup of the city’s judiciary, sources said. While the number of Supreme Court seats in each judicial district is fixed by the state Constitution, the demands of an ever-increasing caseload has led court administrators to elevate certain lower-court judges to fill the gap.

Currently, 143 — or nearly half — of the city’s 294 Supreme Court justices are there by virtue of appointment by the chief administrative judge, in consultation with other court officials.

“The most important factor in making these appointments is ability to handle Supreme Court cases, but seniority is also a factor,” Chief Administrative Judge Lawrence Marks said.

Getting appointed an acting Supreme Court justice is considered “a plum,” said one court insider, who added, “It’s a much more prestigious position and a lot less work.”

“Some people get acting Supreme because they’re producers. Others get it because of support from the county [political] leaders,” the source said. “There’s political grease with 50 to 60 percent of them . . . Unless you do something bad, they don’t take it away from you.”

And while demotions are rare, Kenney’s was actually preceded earlier this year by the even-harsher punishment imposed on Manhattan Civil Court Judge Geoffrey Wright, who was bounced from Manhattan Supreme Court to Queens Family Court. Sources said it was for repeatedly clashing with Manhattan prosecutors, including cursing one out in open court.

Thanks to the Twitter habit of Donald Trump and those on his White House team, the public has been treated to a number of disturbing exchanges in which they spew accusations, threats, and other attacks against one another, as well as on members of the other two branches of government. (After you’ve ensured that no children are looking over your shoulder, you can view the most recent example of this infighting.) But below the radar, the Executive Branch is engaging in the same type of infighting—on issues that matter and have the potential to harm LGB people across the country.

Attorney General Jeff Sessions filed an unsolicited brief in Zarda v. Altitude Express, Inc., a case pending before the U.S. Court of Appeals for the Second Circuit, which raises the question whether Title VII’s ban on sex discrimination encompasses a ban on sexual orientation discrimination. By arguing that Title VII permits employers to discriminate against employees because they love or enter sexual relationships with people of the same sex, the Department of Justice broke with the Equal Employment Opportunity Commission (EEOC), the attorneys general of Connecticut, New York, and Vermont, and dozens of major corporations.

As we argue, here, the DOJ’s position in Zarda is not only morally repugnant but also analytically weak. Moreover, by filing a brief that urges the opposite conclusion of that urged in a separate brief by the EEOC, a federal agency charged with enforcing federal anti-discrimination, the federal government is bizarrely at war with itself, a fight that undermines the authority of the Executive Branch to enforce federal anti-discrimination laws, a harm that will outlast this attorney general.
Zarda v. Altitude Express, Inc.

This case was brought by Donald Zarda, who alleges he was fired from his job as a skydiving instructor because he is gay, in violation of Title VII of the Civil Rights Act of 1964, the nation’s main federal anti-discrimination law.

The firing seems to have arisen from a customer complaint. Rosanna Orellana and her boyfriend David Kengle purchased tandem skydives, in which a customer is tied to an instructor who takes responsibility for deploying the parachute. Zarda was the instructor assigned to help with Rosanna’s jump. He informed her that he was gay and had recently broken up with a boyfriend; he said that he would often reveal his sexual orientation to clients, particularly to women who were accompanied by a husband or boyfriend who might be jealous when another man was tightly strapped to her for the jump.

Kengle only learned later about Zarda’s disclosure to his girlfriend, but, when he did, he called the company to complain about Zarda’s behavior. Zarda was then fired. The parties make different claims about what motivated Zarda’s firing—facts that would get hashed out only if summary judgment is reversed and the case is sent back for trial. The employer claims that summary judgment is appropriate because even if Zarda was fired because of his sexual orientation, that does not violate Title VII.

The trial court granted summary judgment to the employer, Skydive Long Island, on Zarda’s Title VII claim on the theory that the statute does not protect against sexual orientation discrimination. On appeal, a three-judge panel of the Second Circuit was sympathetic to Zarda’s Title VII claim, but held that it was bound by prior opinions in the circuit that could only be overturned by an en banc panel. The Second Circuit did agree to rehear the case en banc, and that is the stage at which both the EEOC and the DOJ filed friend-of-the-court briefs—urging opposite conclusions.
A Recurring Question: Is Sexual Orientation Discrimination Sex Discrimination?

Zarda is certainly not the first case to raise this question. It has been raised periodically for decades, but as the understanding of sex and gender has evolved, many courts have taken a fresh look in recent years.

Title VII prohibits employers with at least fifteen employees from discriminating on the basis of race, color, religion, sex, or national origin. Sexual orientation is not on the list—nor would one to expect it to be specifically identified in a statute drafted when that term was not routinely used. But courts early on were asked to treat claims of sexual orientation discrimination as a form of sex discrimination.

Even in the earliest cases, the argument being made was logical and straightforward: Men should not be discriminated against for being attracted to men, when women are not punished for the same thing, and vice versa. But courts engaged in only the most superficial analysis in these cases and rejected the claim. Sex discrimination occurs when an employer discriminates “against women because they are women and men because they are men,” the Seventh Circuit wrote, simplistically, in Ulane v. Eastern Airlines, Inc. (1984).

Other courts rely on the lack of congressional intent to protect gays and lesbians from employment discrimination at the time Title VII was enacted. That is probably a correct understanding, but Congress probably did not contemplate many of the things we have come to understand as clear examples of sex discrimination, such as charging women more for employer-provided retirement benefits because they are actuarially likely to outlive men or discriminating only against women with preschool age children. Our understanding of sex discrimination has evolved incrementally as courts, especially the Supreme Court, have considered different theories and manifestations of discrimination.

During the decades when federal courts were simply unwilling to interpret Title VII in a way that protected LGBT employees, some stop-gap measures were put in place, including Bill Clinton’s executive order banning sexual orientation discrimination in the civilian federal workforce and Barack Obama’s revocation of the Don’t Ask, Don’t Tell policy that kept gays and lesbians from serving openly in the military. Meanwhile, bills to amend Title VII to add express protection against sexual orientation discrimination were introduced in one congressional session after another, never to become law.

But while Congress was busily not amending Title VII on this point, the Supreme Court was issuing opinions that radically transformed our understanding of sex discrimination. First, in Price Waterhouse v. Hopkins (1989), the Supreme Court ruled that reliance on sex-role stereotyping can be an actionable form of employment discrimination. A woman who was denied partnership in an accounting firm for being insufficiently feminine in her dress and manner of communication suffered sex discrimination. This launched sex stereotyping as an actionable type of sex discrimination. This case was used by effeminate gay men and masculine lesbian women who claimed, often successfully, that the hostility and adversity they experienced was sex, rather than sexual orientation, discrimination.

Second, in Oncale v. Sundowner Services (1998), the Court held that same-sex harassment could be actionable under Title VII as long as the plaintiff had some proof that the conduct was undertaken “because of sex.” Among other ways of satisfying this requirement, a plaintiff can show that the harassment was designed to police gender roles or that it was motivated by homosexual desire. This ruling reinforced the emphasis on stereotyping and supported claims for gender-targeted bullying.

Armed with these instructive precedents, lower federal courts have begun to reconsider their initial reactions to sexual orientation discrimination claims. The re-examination was also propelled by a 2015 EEOC ruling, in which it held, as a matter of agency interpretation, that discrimination against a man because he was gay constituted a form of actionable sex discrimination. The EEOC’s ruling depended on its view that “[d]iscrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms.” There is no way to understand this type of discrimination, the ruling reasons, without reference to a person’s sex.

After the EEOC ruling, several federal district courts reached the same conclusion. (Discussion of some of those cases can be found here and here.) Even more notably, the U.S. Court of Appeals for the Seventh Circuit recently issued an en banc ruling, in which it held that sexual orientation discrimination is sex discrimination under Title VII. Chief Judge Diane Wood began with the observation that while a court cannot add a word to a statute (i.e., it cannot make the words “sexual orientation” magically appear in Title VII), it can interpret the words already there, including “sex.” The court also avoided the red-herring arguments that Congress’s attempt to amend the statute proves that it did not already cover sexual orientation discrimination—or that Congress clearly did not want the statute to cover such discrimination. A legislative body’s failure to adopt a law could mean any number of things—including two things that are diametrically opposed. Congress might not have amended Title VII because it thought the coverage already existed, or it might not have amended because it did not want that coverage. There is no way to know which, if either, of these explanations is correct.

Rather than reading tea leaves, a notoriously unsound method of statutory interpretation, the Seventh Circuit focused on the Supreme Court’s rulings in Oncale and Price Waterhouse. In Oncale, Justice Scalia explained that courts are charged with interpreting words in the statute and prohibiting any type of discrimination “that meets the statutory criteria.”

The meaning of “sex” discrimination, the Hively court concluded, clearly applies to sexual orientation discrimination. First, sexual orientation discrimination, at its core, punishes a woman for being attracted to another woman, when it would not punish a man for being attracted to a woman. This “tried-and-true comparative method” shows the significance of the plaintiff’s sex to the employer’s decision. Second, the court drew on Loving v. Virginia, in which the Supreme Court struck down Virginia’s interracial marriage ban and rejected the state’s “equal application” theory of neutrality. Relevant to the question of sexual orientation discrimination, the Hively court cited Loving for the proposition that “[i]t is now accepted that a person who is discriminated against because of the protected characteristic of one with whom she associates is actually being disadvantaged because of her own traits.”
DOJ’s Brief in Zarda v. Atlantic Express

The opinions discussed above should make clear that discrimination against gays, lesbians, and bisexuals in the workplace is a form of sex discrimination. Yet, the Department of Justice took the position that an employee’s sexual orientation is unrelated to his sex. And it did so in a routine case, in which its views were not solicited, and in which the EEOC had already filed a brief arguing to the contrary.

The simple fact that DOJ filed this brief, under these circumstances, is remarkable. Not only does DOJ urge a different conclusion than the EEOC, it argues that the EEOC’s opinion should be ignored and given no deference. This, too, is remarkable in that the EEOC is the agency charged with enforcing federal anti-discrimination laws and has far greater expertise in employment discrimination law than DOJ, which deals only with a narrow slice of such cases. This attack on the EEOC can only undermine its power in future cases. In other words, Attorney General Sessions’s commitment to throwing LGBT individuals under the bus is so strong that he is willing to undermine his own branch’s power in future cases. DOJ’s brief warns that the “EEOC is not speaking for the United States.” If this is how Executive Branch officials treat sister agencies in writing, just imagine what conversations must be like behind closed doors.

Beyond the odd circumstances of the filing, though, is the odd substance of the brief. It recycles a series of bad arguments might have been persuasive to a court in the 1970s, hearing for the first time a claim of “gay rights.” But in 2017, more sophistication is required.

The DOJ brief first argues that Title VII’s ban on sex discrimination is not violated unless an employer treats men and women unequally. This is not untrue, but it doesn’t prove the result for which DOJ argues. A simple hypothetical reveals the Trump Administration’s error. If an employer fires a female worker because she has relationships with other women, that employee is mistreated because of her sex. She would not have been wronged by her employer if her intimate partners were solely men. In other words, sex was the dispositive factor when her employer decided to unjustifiably terminate her employment.

The DOJ brief also argues that Title VII should be read to exclude sexual orientation discrimination because “until recently” that is what courts had held. But given the significance of the recent, game-changing U.S. Supreme Court decisions, the opposite is probably a better argument. The early cases, as discussed above, were uniform in their superficial treatment of the question before them—and their unwillingness to engage with argument about the nature of sexual orientation discrimination. More recent cases dug deeper, took a more nuanced view of sex and gender, took account of highly relevant Supreme Court precedents and drew a well-supported conclusion that sexual orientation discrimination is, by its nature, sex discrimination. DOJ should not be persuaded by those thin, early opinions any more than it should cite the early sexual harassment cases in which courts said that the only way to avoid sexual harassment would be to hire only asexual employees or that rape did not become actionable discrimination just because it occurred in an office rather than a back alley.

The DOJ brief then makes two spectacularly bad arguments about the meaning of congressional action. First, it argues that because Congress has amended Title VII since courts decided that sexual orientation discrimination was not covered, Congress is presumed to have ratified that understanding of the statute. The brief points to the amendments contained in the Pregnancy Discrimination Act (PDA) of 1978 and those contained in the Civil Rights Act (CRA) of 1991. This argument makes no sense given that neither of these acts would reasonably have addressed the issue of sexual orientation discrimination; it is thus inappropriate to draw any inference about Congress’s state of mind. This is especially so when the only rulings were from lower federal courts rather than the Supreme Court. Moreover, when the PDA was enacted, no court had issued a ruling on sexual orientation discrimination yet, a temporal problem that the DOJ brief just glosses over. The 1991 amendments did not touch the provision in which the protected traits are listed.

Second, it argues that Congress’s failure to approve the proposed amendments to add express protection for sexual orientation discrimination proves that Congress did not want to extend such protection. As explained above, though, legislative silence tells us nothing.

Third, it lists the usual arguments about the nature of sex and sexual orientation discrimination. They are just not convincing.
The EEOC and the Seventh Circuit are Right

While the plain reading of Title VII should readily resolve this case, there are other reasons that federal employment anti-discrimination law prohibits sexual orientation bias in the workplace.

In Loving v. Virginia, the Supreme Court rejected Virginia’s argument that anti-miscegenation laws did not discriminate on the basis of race because white and black Virginians were punished equally if they married outside their race. The Supreme Court held that each partner in an interracial relationship was denied the fundamental right to marry solely on the basis of their race. While that was a constitutional case, courts used the same logic to safeguard workers’ rights who were in interracial relationships.

In 1988, a federal appellate court in Atlanta decided that Title VII protects interracial associations. Don Parr, who was white, applied for an insurance salesman position but was rejected after white hiring managers learned about his interracial marriage. Don Parr was not discriminated against because management held animosity towards whites, but the court ruled that just like in Loving he was nevertheless denied employment because of his race.

It is nonsensical to deny these associational employment protections in federal law after the Supreme Court’s decision in Obergefell v. Hodges, which held the right to marry extends to same-sex couples. As Chief Judge Wood explained in Hively, “if it is race discrimination to discriminate against interracial couples, it is sex discrimination to discriminate against same‐sex couples.”

A second theory also supports the position that sexual orientation discrimination is banned under the Civil Rights Act. The sex stereotyping theory recognized in Price Waterhouse means that “gender must be irrelevant to employment decisions” and that “in the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.” Simply put, this stands for the proposition that Title VII doesn’t permit an employee to be treated adversely because their appearance or conduct fails to conform to stereotypical gender roles.

The animus aimed at gay, lesbian, and bisexual Americans stems from an outmoded societal belief that men should be exclusively attracted to women and women should be exclusively attracted to men. This is a quintessential stereotype—no different from antiquated expectations that women should be feminine and men should be masculine.

The Trump Administration woefully misunderstands the nature of anti-gay animus. The DOJ brief claims that employers’ “moral beliefs” about sexuality could “not be based on views about gender at all” and thus not a form of sex-based discrimination. This claim made on behalf of the United States is disingenuous. Individuals’ beliefs about homosexuality are inherently based on stereotypes and the “proper role” of how men and women should behave. You cannot harbor ill will towards gays, lesbians, and bisexuals unless you also take into account the sex of their intimate partners.
Conclusion: Actions Speak Louder Than Words

The Department of Justice’s position will have dangerous consequences if it prevails. In a small Georgia town, one man faced an excruciatingly painful choice: remain in an unhealthy, corrosive marriage or risk losing his employment. Despite loving his job and coworkers, the man feared his managers deeply disliked gay men and would fire him if they knew his true identity. Because Georgia has no protections against employment discrimination, he stayed in his marriage fearing that if he filed for a divorce and his husband subpoenaed his employment records, he’d lose everything.

There are far too many Americans like that Georgia man who are torn over living their authentic lives at the office or who wonder if they’ll have a job on Monday after getting married the weekend before. The Trump Administration has shamefully asked federal judges to dilute of one of this nation’s greatest civil rights achievements for the sole purpose of keeping LGB persons second class. Judges must reject the invitation.

President Trump made repeated assertions on the campaign trail that his administration would support the rights of lesbian, gay, bisexual, and transgender Americans. If President Trump’s knee-jerk action banning transgender persons from military service (by tweet, no less) was not sufficient to prove otherwise, the Department of Justice has made clear it was a farce.

By Janet Phelan

As reported here, activist attorney Andy Ostrowski was taken into custody by the Wilkes-Barre, PA police department on September 19, for a forced mental health evaluation.  Ostrowski was reached later that afternoon at General Hospital in Wilkes-Barre, where he asserted he was being held as a political prisoner.

Ostrowski, a radio talk show host and civil rights advocate, also made a run for Congress in 2014.

Per hospital protocol, Ostrowski was subsequently transferred to another facility. And now, no one can say where he is.

HIPAA—Health Insurance Portability and Accountability Act—disallows hospitals from confirming if a person is at their facility, if he is on a psych unit. In the conversation on Tuesday, Ostrowski asserted he was most likely to be transferred to First Hospital, in Kingston.

First Hospital, however, will not confirm or deny his presence. As Ostrowski had expressed not only appreciation to this reporter for reaching him at General Hospital, but also asserted the necessity to follow up on his forced incarceration, the failure to reveal his whereabouts  becomes a central issue vis-à-vis his right to freedom of association.

However, the hospitals in question do not seem to honor this historical right. The behaviors by staff at both General and First Hospitals couldn’t be more alarming. Yesterday, in an effort to ascertain where he was transferred, I called General Hospital and spoke with a woman who initially identified herself at “Joanne.” Joanne refused to give information as to where Ostrowski was transferred and when asked her full name, she replied “Julia.” According to Joanne/Julia, to disclose where Ostrowski is would violate HIPAA.

Well, it didn’t get much better at First Hospital. This reporter spoke with the media relations director,  who not only declined any information as to Ostrowski’s presence, but shot back, “You’ll never know if he is here or not!”

And that may be true and how scary is it….

In an effort to get assistance in determining his whereabouts, contact was made with the Luzerne County District Attorney’s office. The call was transferred to a “Marilyn,” who, after hearing that a request was being made to locate Andy Ostrowski, promised to look into this. When no call back was received, the DA’s office was repeatedly called, at which point they repeatedly hung up the phone on me. An initial request for an email contact was also refused. “We don’t give out our email addresses,” the receptionist stated.

These are public servants, folks….

Recently, yet another radio show host was psychiatrically detained. Speaking on conditions of anonymity, she told me that she was picked up this July in front of a library in a Colorado county, where she had just emerged after speaking with the librarian and others about connections between the local government and a for-profit foster care facility, which may be  self enriching through unnecessarily removing children from homes. This radio host was assaulted by a person on leaving the library and when she called 911, the deputy came, slammed her into the wall, cuffed her and brought her to a psych hospital.

She was let go four and a half hours later, and subsequently received a bill for $7300 for her unwanted detention.

Andy Ostrowski, however, may not be so fortunate. He is now “desaparecido”—missing in the gulag.

Several years back, this reporter covered the plight of a man who was under a mental health conservatorship in California. The guardian kept moving Charlie Castle from place to place, as those who were trying to help him assert his rights in fixed proceedings kept discovering his new location. When Castle died under suspicious circumstances, a request for a coroner’s inquiry was made. All that we ever discovered was that the toxicology report—which would have contained the  information concerning the suspected cause of his death—had been somehow removed from the file.

The mental health laws tilt against the rights of those under “evaluation” or “care.” They protect the privacy of the institutions which may, in fact, be abusing the individual and the matter of Andy Ostrowski well exemplifies this. When we spoke on Tuesday, he was overpouring with gratitude that I had reached him. He wanted to make sure his story was told. Until those who have a vise grip on his life and his rights decide to honor the latter, he is just one more who is missing in the system and nowhere to be found.

NY Daily News, "Do you feel like it’s necessary to make large contributions (to politicians) in the cost of doing business?”

“I personally don’t,” replied the developer who’d given a fortune to various New York politicians in the course of doing business here. “I think the perception is in a way worse when I make a large contribution . . . where I was asking for something proper and even good, and a candidate really was under pressure to reject it because I made contributions to his campaign.”

That word-salad— which I stumbled over in the files Donald Trump biographer and indefatigable money-trail follower Wayne Barrett generously shared at the end of his life — came in 1988, as the august members of a special State Commission on Government Integrity came to 725 Fifth Ave., better known as Trump Tower, to question The Donald.

The exchange jumped out at me because of the questioner, listed in the transcript as MR. VANCE. That was the former secretary of state under President Carter, whose namesake son, Cyrus Vance Jr., is running unopposed for a third term as Manhattan district attorney amidst a brutal wave of stories about his decisions not to prosecute powerful people that came too late for anyone else to get on the ballot.

Start with Vance’s 2015 call not to charge Harvey Weinstein with forcible touching and sexual abuse after the NYPD provided an appalling tape, recorded by the victim, of him vowing “I won’t do it again” even as he cajoles her to enter his hotel room while threatening her career.

That old news was revisited, in a harsh new light, after the New Yorker published the recording in its blockbuster story last week in which several women accused the movie mogul of rape.

That came less than a week after the magazine reported that the DA’s Major Economic Crimes Bureau had spent two years building a fraud case, including smoking-gun emails, against Donald Trump Jr. and Ivanka Trump for lying to prospective buyers about sales at the Trump SoHo.

By Eric Levenson, CNN, NEW YORK —

The explosive sexual harassment and sexual assault accusations against movie mogul Harvey Weinstein aren't just roiling Hollywood. They're also shaking up the New York City criminal justice system.

The New York Police Department and the Manhattan District Attorney's office traded public finger-pointing on Tuesday in response to questions about why Weinstein was not charged with a crime after a 2015 sting operation recorded him making potentially incriminating comments to a young woman.

The office of Manhattan District Attorney Cyrus Vance Jr. accused the NYPD of providing "insufficient" evidence to prove a crime, while the police department defended its techniques and investigation.

Weinstein, the studio executive and political power broker, is facing allegations of rape, unwanted touching and assault by a number of women, including accusations of sexual harassment by actresses Gwyneth Paltrow and Angelina Jolie, in recent stories published in The New York Times and The New Yorker.

The sting operation

A story Tuesday in The New Yorker accuses Weinstein of rape by multiple women and includes an audio recording of Weinstein speaking with Ambra Battilana Gutierrez, a young model, as part of a sting operation. The NYPD set up the sting after Gutierrez told authorities that Weinstein groped her the day before.

Gutierrez, wearing a recording device, met up with Weinstein at a hotel in Manhattan. On the tape, Weinstein can be heard repeatedly telling Gutierrez to come inside his hotel room. She repeatedly rebuffs his requests and says she is not comfortable doing so.

At one point, Gutierrez asks him, "Why yesterday (did) you touch my breast?"

"Oh please, I'm sorry, just come on in. I'm used to that," he responds.

"You're used to that?" she says.

"Yes, come in," he says.

"No, but I'm not used to that," she says.

"I won't do it again," he says.

Weinstein's representatives said they have no comment on the tape.

Despite the tape, Weinstein was not arrested or charged with any wrongdoing at the time.

"After analyzing the available evidence, including multiple interviews with both parties, a criminal charge is not supported," the District Attorney's Office said at the time, according to The New Yorker.

NYPD sources told CNN the department has no open investigations into Weinstein's actions and no additional victims have come forward with accusations against him.

The sources also said there are a number of reasons why the case will not be reopened, one being that the statute of limitations for what could have been a misdemeanor offense has expired.

A representative for Weinstein released a statement denying any accusations of rape.

"Any allegations of non-consensual sex are unequivocally denied by Mr. Weinstein. Mr. Weinstein has further confirmed that there were never any acts of retaliation against any women for refusing his advances," the statement said.

"Mr. Weinstein obviously can't speak to anonymous allegations, but with respect to any women who have made allegations on the record, Mr. Weinstein believes that all of these relationships were consensual. Mr. Weinstein has begun counseling, has listened to the community and is pursuing a better path. Mr. Weinstein is hoping that, if he makes enough progress, he will be given a second chance."

Why no criminal charges?

So why did Weinstein not face charges?

On Tuesday, after The New Yorker published that audio, the Manhattan District Attorney's office released a statement implying that the NYPD had dropped the ball in its investigation.

The NYPD arranged the sting "without our knowledge or input" and did not give prosecutors "the opportunity before the meeting to counsel investigators" on what was needed to prove a misdemeanor sex crime, according to Chief Assistant District Attorney Karen Friedman Agnifilo.

"While the recording is horrifying to listen to, what emerged from the audio was insufficient to prove a crime under New York law, which requires prosecutors to establish criminal intent," Friedman Agnifilo said in the statement.

"Subsequent investigative steps undertaken in order to establish intent were not successful. This, coupled with other proof issues, meant that there was no choice but to conclude the investigation without criminal charges."

Friedman Agnifilo said Weinstein's reported pattern of mistreating women is "disgraceful and shocks the conscience."

"If we could have prosecuted Harvey Weinstein for the conduct that occurred in 2015, we would have," she said.

NYPD defends its actions

But the NYPD took issue with that characterization of their investigation, saying in a statement that the case was carried out by experienced detectives and supervisors from the department's Special Victims Unit.

"The detectives used well-established investigative techniques. The recorded conversation with the subject corroborates the acts that were the basis for the victim's complaint to the police a day earlier," the NYPD said.

"This follow-up recorded conversation was just one aspect of the case against the subject. This evidence, along with other statements and timeline information, was presented to the office of the Manhattan District Attorney."

In addition, Vance's office has faced criticism for accepting a $10,000 donation from David Boies, an attorney for Weinstein, in August 2015 -- four months after the decision not to press charges, according to campaign financial disclosure forms from the New York State Board of Elections.

However, Vance campaign spokesperson Stephen Sigmund said in a statement that Boies was not Weinstein's lawyer in that criminal case.

"Mr. Boies has been a longtime supporter of Cy Vance, both well before 2015 and well after. His contributions, like those of any other contributor, do not and never will influence the work of the DA s office," the statement said.

The disclosure form also shows that Boies donated $15,000 to Vance's campaign in 2013, $10,000 in 2011 and $20,000 in 2008.

Boies' office did not immediately respond Wednesday to a request for comment.

Vance told reporters Wednesday that his office's decision not to press charges was guided by a recommendation from the head of the Sex Crimes Unit and had nothing to do with any donations.

"No contribution ever in my seven years of (being) District Attorney has ever had any impact on my decision making in a case," Vance said.

In his decades at Miramax and the Weinstein Company, Weinstein produced such Oscar-winning movies as "Pulp Fiction,""Shakespeare in Love" and "The English Patient." He was fired from the film company he co-founded on Sunday.

Betsy Combier

betsy@advocatz.com

A former clerk for Judge Alex Kozinski said the powerful and well-known jurist, who for many years served as chief judge on the U.S. Court of Appeals for the 9th Circuit, called her into his office several times and pulled up pornography on his computer, asking if she thought it was photoshopped or if it aroused her sexually.

Heidi Bond, who clerked for Kozinski from 2006 to 2007, said the porn was not related to any case. One set of images she remembered was of college-age students at a party where “some people were inexplicably naked while everyone else was clothed.” Another was a sort of digital flip book that allowed users to mix and match heads, torsos and legs to create an image of a naked woman.

Bond is one of six women — all former clerks or externs in the 9th Circuit — who alleged to The Washington Post in recent weeks that Kozinski, now 67 and still serving as a judge on the court, subjected them to a range of inappropriate sexual conduct or comments. She is one of two former clerks who said Kozinski asked them to view porn in his chambers.

In a statement, Kozinski said: “I have been a judge for 35 years and during that time have had over 500 employees in my chambers. I treat all of my employees as family and work very closely with most of them. I would never intentionally do anything to offend anyone and it is regrettable that a handful have been offended by something I may have said or done.”

When Bond was clerking, Kozinski was on the precipice of becoming chief judge for the 9th Circuit — the largest federal appeals court circuit in the country, handling cases for a large swath of the western United States as well as Hawaii and Alaska. The other people who alleged that Kozinski behaved inappropriately toward them worked in the 9th Circuit both before and after her, up to 2012.

Bond said she knew that she was to come to the judge’s office when her phone beeped twice. She said she tried to answer the judge’s inquiries as succinctly and matter-of-factly as possible. Bond was then in her early 30s and is now 41.

If the question was about photoshopping, Bond said, she would focus on minor details of the image. If Kozinski asked whether the images aroused her, Bond said, she would respond: “No, this kind of stuff doesn’t do anything for me. Is there anything else you need?” She said she recalled three instances when the judge showed her porn in his office.

“I was in a state of emotional shock, and what I really wanted to do was be as small as possible and make as few movements as possible and to say as little as possible to get out,” Bond said.

Bond, who went on to clerk for the Supreme Court and now works as a romance novelist writing under the name Courtney Milan, and another clerk, Emily Murphy, who worked for a different judge on the 9th Circuit and is now a law professor, described their experiences in on-the-record interviews. The other four women spoke on the condition that their names and some other identifying information not be published, out of fear that they might face retaliation from Kozinski or others.

Kozinski, who served as the chief judge on the 9th Circuit from 2007 to 2014, remains a prominent judge, well known in the legal community for his colorful written opinions. His clerks often win prestigious clerkships at the Supreme Court.

Murphy, who clerked for Judge Richard Paez, said Kozinski approached her when she was talking with a group of other clerks at a reception at a San Francisco hotel in September 2012. The group had been discussing training regimens, and Murphy said she commented that the gym in the 9th Circuit courthouse was nice because other people were seldom there.

Kozinski, according to Murphy and two others present at the time who spoke to The Post, said that if that were the case, she should work out naked. Those in the group tried to change the subject, Murphy and the others present said, but Kozinski kept steering the conversation toward the idea of Murphy exercising without clothes.

“It wasn’t just clear that he was imagining me naked, he was trying to invite other people — my professional colleagues — to do so as well,” Murphy said. “That was what was humiliating about it.”

Murphy, who was 30 at the time of the incident and is now 36, provided The Post with a 2012 email showing that she told a mentor about what had happened at the time. Two of Murphy’s friends who were present at the time of the encounter, speaking on the condition of anonymity, also confirmed her account. Bond, similarly, provided emails showing that she told a friend what had happened at least as of 2008.

The friend, fellow romance novelist Eve Ortega, provided the same emails. She confirmed that Bond had told her years ago that Kozinski made inappropriate sexual comments and showed her porn.

Kozinski has previously been embroiled in controversies relating to sexually explicit material.

In 2008, the Los Angeles Times revealed that Kozinski had maintained an email list that he used to distribute crude jokes, some of them sexually themed, and that he had a publicly accessible website that contained pornographic images.

A judicial investigation ultimately found that Kozinski did not intend to allow the public to see the material, and that instead the judge and his son were careless in protecting a private server from being accessible on the Internet.

Anthony J. Scirica, then the chief judge of the U.S. Court of Appeals for the 3rd Circuit, wrote at the time that Kozinski’s “conduct exhibiting poor judgment with respect to this material created a public controversy that can reasonably be seen as having resulted in embarrassment to the institution of the federal judiciary.”

According to Scirica’s report, Kozinski said that he used the server to keep a variety of items he received by email, including TV commercials, video clips, cartoons, games and song parodies.

Of the sexually explicit files, Kozinski testified: “Some I thought were odd or funny or bizarre, but mostly I don’t have a very good reason for holding onto them. I certainly did not send them to anyone else or ask anyone to send me similar files,” according to Scirica’s report.

Kozinski also testified that he “does not visit and has no interest in pornographic websites,” according to Scirica’s report. He separately apologized for any embarrassment he had caused in maintaining the email list and said he had stopped sending the jokes.

Bond said the images Kozinski showed her seemed to come from his private server, because he pulled them from a site containing the term “kozinski.com.”

The other Kozinski clerk who said the judge showed her porn declined to provide specifics out of fear that Kozinski would be able to identify her. Bond said Kozinski also showed her a chart he claimed he and his friends from college had made to list the women with whom they had had sexual relations.

Bond said either Kozinski or his administrative assistant reached out to her around the time of the news reporting on his private server, asking if she would be willing to defend his character. She wrote Ortega about the inquiry in 2008, according to emails the women shared with The Post, and Ortega responded that it “sounds like a very bad idea to me.”

“I know he brought you into his office to show you porn, I know he made sexual innuendos to you. I know this because you told me so in DC, and you even used the words sexual harassment,” Ortega wrote. “You said you would warn off other women thinking of clerking for him. And if there’s a woman out there he harassed worse than you, do you really want to be pitted against her? Because that’s what it would be. I’m worried that this is what he’s asking you to do — to be the female, intelligent face of his defense and make whoever it is accusing him look like a stupid slut, and then he hopefully never has to actually address those allegations.”

Kozinski was born in Romania to Holocaust survivors in 1950, and the family fled the communist state when he was a boy. Decades ago, long before he was a federal judge, he appeared on the television show “The Dating Game,” planting a kiss on a surprised young woman who selected him for a date. He is married and has three sons.

Kozinski was appointed to the 9th Circuit by President Ronald Reagan in 1985. He is an atypical federal appeals court judge — authoring irreverent opinions and not shying, as many of his colleagues do, from media appearances.

He styled one opinion in 2012 not as a traditional concurrence or dissent, but instead as “disagreeing with everyone.” He famously wrote during a trademark dispute between the toy company Mattel and the record company that produced the 1997 song “Barbie Girl,” “The parties are advised to chill.”

In more recent years, Kozinski wrote that using lethal injections to impose the death penalty was “a misguided effort to mask the brutality of executions by making them look serene and beautiful — like something any one of us might experience in our final moments,” and he told the Los Angeles Times, “I personally think we should go to the guillotine, but shooting is probably the right way to go.”

The Post reached out to dozens of Kozinski’s former clerks and externs for this story. Many of those who returned messages said they experienced no harassment of any kind, and their experience — which entailed grueling work into the wee hours of the morning every day — was a rewarding one. They noted Kozinski’s wry sense of humor.

Those who talked to The Post about negative experiences said that they felt his behavior went beyond bad jokes or that they felt personally targeted.

A former Kozinski extern said the judge once made a comment about her hair and looked her body up and down “in a less-than-professional way.” That extern said Kozinski also once talked with her about a female judge stripping.

“I didn’t want to be alone with him,” the former extern said.

A different former extern said she, similarly, had at least two conversations “that had sexual overtones directed at me,” and she told friends about them at the time. One of the friends, also a former extern, confirmed that the woman had told her about the remarks — though both declined to detail them for fear of being identified.

One former 9th Circuit clerk said she was at a dinner in Seattle, seated next to Kozinski, when he “kind of picked the tablecloth up so that he could see the bottom half of me, my legs.” She said Kozinski remarked, “I wanted to see if you were wearing pants because it’s cold out.” The former clerk said that she was wearing pants at the time. The incident, she said, occurred in either late 2011 or early 2012.

“It made me uncomfortable, and it didn’t seem appropriate,” said the former clerk, who worked for a different judge.

All of the women The Post interviewed said they did not file formal complaints at the time. Bond said Kozinski had so vigorously stressed the idea of judicial confidentiality — that what is discussed in chambers cannot be revealed to the outside — that she questioned even years later whether she could share what had happened with a therapist, even though she had already talked with Ortega about what had happened.

Bond said Kozinski worked his clerks so hard that “there was no thought that I could see him as anything other than in complete control,” and she feared that not leaving with a good recommendation from him might jeopardize her career.

“I did think about walking away and concluded I just didn’t know what I would do if I did,” Bond said.

The other former Kozinski clerk who said the judge asked her to watch porn in his chambers said she both feared what the judge might do and knew that a complaint was unlikely to strip him of his influence.

“I was afraid,” the former clerk said. “I mean, who would I tell? Who do you even tell? Who do you go to?”

Murphy said she discussed what had happened with the judge for whom she was clerking, and he was supportive of her filing a complaint. But because the complaint would first go to Kozinski himself, then be referred elsewhere, Murphy said she chose not to proceed. The judge, Paez, declined to comment for this story through a representative.

As a judge, Kozinski has addressed the topic of sexual harassment in important ways. In 1991, he joined an opinion that decided such cases should be judged from the perspective of the victims, using what was then called the “reasonable woman” standard. The opinion, written by then-Judge Robert R. Beezer, noted pointedly, “Conduct that many men consider unobjectionable may offend many women.”

Beezer died in 2012. Kozinski himself wrote about sexual harassment in 1992, commenting on how legal remedies could come with unforeseen consequences.

He wrote that men “must be aware of the boundaries of propriety and lean to stay well within them,” while women “must be vigilant of their rights, but also have some forgiveness for human foibles: misplaced humor, misunderstanding, or just plain stupidity.”

He acknowledged, though, that the problem of harassment was a real one.

“But who knew, who understood, that it was quite so pervasive,” Kozinski wrote. “Apparently most women did, while most men did not. It was the best-kept secret of modern times.”

Julie Tate contributed to this report.

betsy@advocatz.com

The New York Times said late Tuesday that it had ended its relationship with David Boies and his firm after new details emerged about Boies’ work for Harvey Weinstein.
By Miriam Rozen | November 07, 2017 | Originally published on The American Lawyer

One down, and all the rest of the judges we know who are corrupt should be worried. But we know they are not.

Judicial corruption is rampant in America, and the quick departure of Judge Kozinski gives us at least some hope that more people in the judicial arena will follow.

See 

and,

Betsy Combier

Remember how there was a Biglaw partner caught up in the whole Martin Shkreli securities fraud mess? While the rest of the world celebrated the downfall of the massive douchebag that rose to infamy by raising the price of a life-saving pill, Daraprim, by 5,000% (from $13.50 to $750), over in our little corner of the internet, there was plenty of schadenfreude-laced glee over the fact that a Kaye Scholer partner, Evan Greebel, got arrested alongside his former client. (Greebel represented Shkreli while at Katten Muchin, where he worked for more than a decade before joining Kaye Scholer.)

Though Greebel was still gainfully employed in Biglaw back in December, it seems that is no longer the case. As Law360 reports:

That isn’t the only shake-up in the notable case — he’s also made a change at the counsel’s table. With the means to hire the best of the best and the experience to know the big players in the white-collar world, Greebel initially tapped a well-known boutique, Morvillo Abramowitz Grand Iason & Anello, and partners Jonathan Sack and Benjamin Fischer. But all that is different now:

White-collar enthusiasts may remember Brodsky for his former role in the U.S. Attorney’s office for the Southern District of New York, where he was lead prosecutor in the conviction of Rajat Gupta on insider trading charges. Though he is now on the other side of the room, this case is sure to reverberate in the legal world.

He was a good dad with a bad son.

Former state Senate Majority Leader Dean Skelos took the witness stand Friday at his federal corruption retrial to admit, yes, he pulled a few strings for his ne’er-do-well son — but no favorable legislation was advanced in exchange.

The former Albany bigwig, who’s accused of soliciting bribes and extorting businesses to employ his slacker son, Adam, explained what he did for the love of his kid.
“Quite frankly, I’ve asked a lot of people to help my son,” he said. “If I had the opportunity to ask (somebody) to help Adam, I would.”

But the disgraced ex pol said he never threatened or intimidated anyone for the favors, almost laughing off the insinuation under questioning.

The Long Island Republican — once one of the three powerful men who decided how the state budget would be spent — told the court about his decades-long political career, his son’s behavioral problems from a young age and their close-knit father and son relationship. Skelos cut a confident figure, wearing a beige suit and a blue tie, and cracking more than one joke during his testimony.

The fallen legislator said he and his adopted son, 35, had a impenetrable bond from the get-go, which he partially attributed to his wife leaving in 1982.

“(Life circumstances) changed — number one, I lost my election,” he said. “But also the marriage did not work out, and for a while, I was the primary caregiver of Adam.”

Skelos, 70, said he would take his baby boy to political events, even holding him up on stage when he gave speeches. Offstage, Adam Skelos grew up struggling in school and with behavioral problems, he said.

“We would discuss school. We would discuss our personal lives. Adam had certain issues he was dealing with,” Skelos said. When the boy was 7 or 8, his dad enrolled him in special-education classes for reading and language, where he remained for four or five years. Skelos said he tried to be a positive force in his son’s life, telling him, “Move forward — have confidence in yourself, do the right thing.”

By the time Adam Skelos reached his early 20s, drug and alcohol addiction became a bigger issue.

“What I would always try to do is manage him through those issues,” he said. “There’s nothing more important than being a parent.”

Skelos didn’t shy away from talking about his son’s temper.

“His temperament, sometimes he could get a bit abrasive,” he said. “It could get a little ugly.”

For all his close parenting, Skelos wasn’t able to instill a strong work ethic in his son.

Anthony Bonomo, a medical malpractice CEO who hired Adam Skelos at his father’s request, complained about the son not coming to work.

“He called me and indicated that Adam was not performing well — that he wasn’t showing up the way he felt he should,” the former senator told the court.

Instead of addressing it himself, Skelos said he kicked the problem back to Bonomo, who he said had been a friend for 30 years. He told the insurance executive, “If there’s any way you could remediate the problem, it would be nice.”

His lawyer, Robert Gage asked about his tone.

“Certainly not threatening,” he said. “I think what he heard was my frustration with Adam.”

Adam Skelos, center

ALBANY — A female attorney who was terminated from her job at the state Division of Criminal Justice Services for cooperating in a sexual harassment investigation filed a federal lawsuit Friday accusing the agency's leader of covering up the allegations against a former forensics director.

The civil rights lawsuit was filed in U.S. District Court by Gina L. Bianchi against DCJS Commissioner Michael C. Green and two other agency leaders, general counsel John Czajka and human resources director Karen Davis.

The lawsuit also targets state Inspector General Catherine Leahy Scott, whose office conducted the harassment investigation of former DCJS director Brian J. Gestring, and subsequently turned over Bianchi's confidential testimony to the agency without her knowledge.

The decision by Green last December to terminate Bianchi — after interrogating her for more than two hours with a copy of her testimony from the inspector general's office — has resonated across state agencies and left many workers saying they no longer feel safe cooperating with Leahy Scott's office.

Leahy Scott's decision and Green's actions have not been questioned by Gov. Andrew M. Cuomo, who has declined comment.

The lawsuit notes that Green took no action against Gestring, who was found to have engaged in years of sexual harassment, racism, ageism and workplace violence.

A DCJS spokeswoman on Friday declined comment and said they have not been served with a copy of the lawsuit. A spokesman for Leahy Scott also declined to comment.

Bianchi's lawsuit said that Green, who had counseled Gestring in 2012 for workplace misconduct, told her repeatedly during the December interrogation that she should have been more evasive in her testimony to the inspector general's office, "with a statement that was, in sum or substance, 'I do not have a specific fact upon which to base an answer to your question.'"

Bianchi said that in 2012, not longer after Gestring was hired as director of the agency's Office of Forensic Science, that Green removed Gestring from her supervision. The move took place after Bianchi had documented Gestring's alleged misconduct in a counseling memo. When she subsequently reported additional acts of inappropriate behavior by Gestring, the complaint states, Green did nothing and told her to "stay out of OFS"— a reference to Gestring's office.

"The actions taken by defendants have been taken with the intention to chill the speech of plaintiff, as well as the speech of all DCJS employees — and, indeed, all state employees generally — who might consider complaining of, and/or testifying about, civil rights and other violations," the complaint states.

The agency's decision to punish Bianchi and another female employee who testified about Gestring's alleged misconduct was exposed by the Times Union in a story published on March 18. Cuomo's office subsequently issued a statement saying the governor had asked the state's Joint Commission on Public Ethics to conduct another investigation — the fourth investigation of the case by a state agency. The probe by JCOPE has languished and Bianchi and the other female employee, Kimberly Schiavone, have not been interviewed by its investigators.

Bianchi and Schiavone, who was transferred out of the forensic science office against her wishes after she filed a complaint against Gestring, were later ordered by DCJS officials to move into smaller offices — including one that was formerly a closet. DCJS then rescinded its directive against Bianchi not long after the Times Union asked what had prompted the decision.

The lawsuit claims that employees who cooperated with Leahy Scott's investigation of Gestring last year "were specifically told, and/or understood, that the sworn testimony they provided would be confidential.  ... It is not the standard or routine practice of the office of the New York state inspector general to release tapes or transcripts of state employees' testimony to those employees' supervisors, or to agency heads, or to agency counsels in connection with the inspector general's investigations."

Gestring was abruptly fired March 23 for what the agency said was an unrelated complaint involving inappropriate comments made at an off-site training seminar in June 2017. Sources familiar with that allegation said the incident took place during a DNA training session at the State Police crime laboratory, where Gestring allegedly had made a vulgar remark as the group examined a rape case involving young children. A female State Police scientist filed a complaint about his remark, but the agency took no action.

The investigation of Gestring revealed a history of offensive and inappropriate behavior that began shortly after he started working for DCJS in July 2012. Records indicate that about four months after Gestring was hired, he received two counseling memos for misbehavior. Gestring signed the memos certifying that he had read them, but added handwritten notes claiming he disagreed with the findings, had been forced to sign them, and that staff at DCJS had "agendas," according to details of the inspector general's investigation shared with the Times Union.

Leahy Scott's investigators, who obtained sworn testimony from multiple DCJS employees, said they were also told that Gestring had once encouraged a female manager to file fraudulent sexual harassment charges against a male colleague in an apparent effort to have him terminated. The woman refused.

In October, Leahy Scott and her deputy inspector general, Spencer Freedman, met with Czajka, DCJS's top legal counsel, and Green to outline the findings of their investigation.

Leahy Scott, who was appointed inspector general by Cuomo in 2013, followed up the October meeting with a five-page letter to DCJS on Dec. 6 outlining the findings of her office's investigation. The letter recommended the agency take action against Gestring and two other officials accused of mishandling the allegations, First Deputy Commissioner Mark Bonacquist and Davis, the human resources director.

The agency did not take action against those employees. Instead, DCJS said it had conducted its own investigation and could not sustain the allegations against Gestring.

Bianchi, an attorney who has worked at DCJS for 24 years, was terminated by Green a day before Leahy Scott's report — in the form of a letter — was sent to Green. It's unclear why Leahy Scott outlined her findings in a letter rather than a report, which are normally made public.

Although Bianchi was terminated, she was able to fall back into a lower-paying job with the agency due to state hiring regulations, but took a $44,000-a-year pay cut.

Schiavone had filed a workplace violence complaint against Gestring last August, but the agency did not follow up and never interviewed her about the complaint, said John W. Bailey, who is the attorney for Schiavone and Bianchi.

In a prior statement, DCJS said its decision last December to terminate Bianchi and transfer Schiavone were "appropriate actions ... to maintain the appropriate work environment at DCJS."

NY Daily News, Stephen Rex Brown, Aug. 5, 2018

He was left to languish on Rikers Island for five months without being told his bail was only a dollar – but there’s no one to blame.

A judge has tossed a lawsuit filed by a Queens man who alleges the city violated his constitutional rights through the unnecessary time in jail, ruling that the debacle was not “outrageous.”

Aitabdellah Salem’s ordeal revealed a disastrous failure in court bureaucracy. He was arrested for shoplifting and assault following a struggle with a cop on Nov. 21, 2014. At the time of his arraignment, he was facing a previous assault charge and a judge slapped him with $50,000 bail. Less than a week later, his bail was reduced to $1 during a hearing he didn’t attend. He missed a total of four hearings regarding his case.

The public defenders who waived his appearances never gave him updates, and jail staff did not follow orders to bring him to court, Salem charges. He didn’t learn he could have bought his freedom for less than the price of a cup of coffee until April 2015.

Nevertheless, Salem’s stay at the Anna M. Kross Center on Rikers wasn’t egregious enough to sustain his lawsuit for violations of his due process rights, Manhattan Federal Court Judge John Koeltl wrote.

“Failure to produce Salem in court and failure to inform Salem that his bail had been reduced may amount to negligence, but in total, his detention under these circumstances does not meet the standard required to be considered outrageous,” Koeltl wrote.

Salem, 43, is serving five years in prison for second-degree assault and petty larceny for shoplifting at a Zara store in the Flatiron district. That sentence weighed heavily in Koeltl’s decision.

“Salem has not challenged the validity of his convictions,” Koeltl wrote in a ruling released Wednesday. “The defendants were justified in holding Salem until bail was paid.”

Salem’s attorney, Welton Wisham, was outraged.

“I just can’t believe you can hold a guy for $1 bail!” he said. “But according to this judge, it’s OK!”

On April 15, 2015 — after 138 days on Rikers — Salem was freed on bail. A correction officer told him a jail chaplain — who never met Salem but heard about his case — paid his bail.

Salem was convicted on Aug. 9, 2016, his time served at Rikers will be applied to his prison time as a credit.

The city Law Department declined to comment. Koeltl gave Wisham until next month to file an amended complaint to address legal issues in the suit.

The attorney said he hadn’t yet broken the news of the court defeat to Salem.

“I don’t know if the system is racist. I don’t know what to say,” Wisham said. “How can he pay the bail if he didn’t know about it?”

Queens man who spent five months at Rikers not knowing his bail was only $1 suing city, Legal Aid lawyers
Now he wants the city and his lawyers to pay.

A Queens man who languished at Rikers Island for five months without knowing his bail was just $1 is suing the city and his Legal Aid lawyers for keeping him in the dark.

Aitabdel Salem, 42, was arrested on Nov. 21, 2014, on charges he attacked an NYPD officer trying to collar him after he allegedly stole a coat at a Zara store in the Flatiron district, according to court documents.

His bail was initially set at $25,000 in that case and in a second case the next day.

On Nov. 26, his return court date, he was never produced in court, and a judge dropped the bail in one of those cases to a buck.

Two days later, he was again not produced in court. A judge ordered him released on his own recognizance in the second case because prosecutors hadn't convened a grand jury within 144 hours, as is required by law if a felony suspect is held on bail, according to the lawsuit.

Salem had another court date on Feb. 11, and again, he wasn't produced before a judge, the lawsuit claimed.

At each court date after his arraignment, his lawyer waived his appearance and allowed the proceeding to go on without him, the lawsuit alleges.

"Mr. Salem implored corrections officers within (Rikers Island) to tell him what happened on his respective court dates," the lawsuit alleges. "None of the corrections officers told him that he was ordered to be free on Nov. 28, 2014, because his bail had been reduced from to $1.

"In fact, they all ignored his unrelenting pleas for information regarding his freedom," the lawsuit alleges.

A prison chaplain ultimately paid his bail on April 15, 2015.

The Daily News first broke Salem's story in June 2016, after he was acquitted on bail-jumping charges. He missed a court date about a month after his release because he hadn't been told of a scheduling change, according to the lawsuit.

Salem was ultimately convicted on felony assault and criminal tampering charges in August, and is serving four and a third to five years in state prison.