November 12, 2014

New York Law Journal / Written by: Harvey M. Stone, Richard H. Dolan

In the U.S. District Court for the Eastern District of New York. Judge Dora L. Irizarry, relying on plaintiffs' right to intimate association, granted a preliminary injunction requiring defendant university to recognize an all-male fraternity despite the exclusion of females. Judge Nicolas G. Garaufis disqualified a law firm from representing a defendant in a death-penalty case where counsel had once represented a key witness regarding the same charged arson and murder. And Judge Arthur D. Spatt declined to dismiss Rehabilitation Act claims by a woman seeking handicapped-accessible housing.

§ 1983: Intimate Association

In Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City University of New York, 05 CV 2919 (EDNY, Aug. 11, 2006), Judge Irizarry granted a motion by plaintiffs, an all-male fraternity and its members, for a preliminary injunction requiring defendants to recognize that fraternity. Pending further proceedings, the court agreed with plaintiffs' § 1983 claims that the university's prohibitions against both gender discrimination and 'rushing and pledging' to justify nonrecognition violated plaintiffs' First Amendment right to intimate association.

The individual plaintiffs are male students at the College of Staten Island (CSI)--a senior college of defendant City University of New York (CUNY)--who are members of Chi Iota Colony (the fraternity), which is in the process of becoming a chapter of the international social fraternity Alpha Epsilon Pi (AEPi). Chi Iota Colony now has 18 members and will not likely exceed 50 members. About 4,500 of CSI's 11,100 undergraduates are male.

The fraternity's purpose and membership requirements are consistent with those of AEPi, which describes itself as 'the Jewish Fraternity of North America' but is 'non-discriminatory and open to all who are willing to espouse its purpose and values.' AEPi's purpose is 'not specifically religious, but rather social and cultural....'

AEPi's constitution limits membership in a particular chapter to male students. As set forth in AEPi's bylaws, one of its purposes is '[t]o foster and promote brotherly love.' Similarly, plaintiffs describe their fraternity's purpose as 'achieving a lifelong interpersonal bond called brotherhood [.]' According to plaintiffs, '[t]he single-sex, all male nature of the fraternity is essential to achieving and maintaining the congeniality, cohesion and stability that enable it to function as a surrogate family and to meet social, emotional and cultural needs of its members.'

In March 2004 the fraternity applied to be chartered and officially recognized by CSI. Such recognition would give the fraternity the many benefits and privileges accorded to other recognized student organizations. Turning down the application, CSI cited its policies against gender discrimination and 'rushing and pledging.'

In June 2005 plaintiffs filed the instant action claiming under § 1983 that defendants had, among other things, violated their rights to intimate and expressive association. Plaintiffs also sought a preliminary injunction. Defendants cross-moved to dismiss under Rule 12(b)(6).

In holding that injunctive relief was warranted, Judge Irizarry noted that irreparable harm could be presumed because the alleged First Amendment violations 'result directly' from defendant's policies leading to the denial of recognition.

As to the likelihood of success on the merits, Judge Irizarry observed that plaintiffs were asserting claims under two associational rights--'freedom of intimate association,' which protects the right to maintain certain human relationships against undue intrusion by the state, and 'freedom of expressive association,' which protects the right to associate for the purpose of engaging in speech, assembly, petition for the redress of grievances, and the exercise of religion.

The court concluded: 'Under the totality of circumstances, considering the fraternity's relatively small size, exclusivity in membership, and seclusion in activities central to the group's purposes, plaintiffs have shown 'clear' or ' substantial' likelihood of success on the merits that the Fraternity qualifies as an intimate association.' Slip op. 22.

Nor could the state action by CSI survive 'strict scrutiny.' CSI set forth no justification for its prohibition against 'pledging and rushing.' As the court stated, rushing and pledging are 'inseparable from the fraternity's existence,' and CSI has no 'compelling interest' in preventing student groups from forming. Thus, 'the critical state action' at issue is CSI's use of its nondiscrimination policy.

While there is a compelling interest in eradicating discrimination based on gender, 'fraternities and sororities have long-standing traditions of single-sex membership' and, in fact, have been specifically excluded from federal legislation against gender discrimination. Slip op. 23-25. Accordingly, 'CSI's denial of official recognition to the fraternity in the name of its nondiscrimination policy does not justify a violation of the fraternity's right to intimate association as an organization that promotes congeniality and a supportive social structure for male students.' Slip op. 25.

Defendants did not challenge the fraternity's status as an expressive association, but argued rather that the fraternity's expressive activity would not be burdened by inclusion of women members. Given the record before it, Judge Irizarry did not view expressive association as a sufficient ground for injunctive relief. But plaintiffs' claim in this regard was strong enough to withstand the motion to dismiss.

Judge Irizarry granted defendants' motion to dismiss plaintiffs' claims based on equal protection and Title IX as well as their claims for monetary damages against certain CSI officials. Slip op. 37-39.

Attorney Disqualification. In United States v. Galestro, OC CR 285 (EDNY, Aug. 16, 2006), Judge Garaufis granted the government's motion to disqualify defendant's chosen counsel in a death-penalty case because counsel had previously represented a key cooperating witness expected to testify against defendant in connection with the same charged offenses.

Previous Representation

In January 2006 attorney Levitt and his partner Kaizer represented one Michael Maggio at his arraignment and bail hearing. The prosecutor gave counsel transcripts of recorded conversations in which Mr. Maggio discussed the same alleged arson charged against defendant Galestro. Mr. Maggio also told counsel about participating in the alleged arson, a murder and other crimes, as well as the roles of participants in those crimes. Counsel discussed with Mr. Maggio the available options. After Mr. Maggio decided to cooperate, new counsel was appointed for him.

Messrs. Levitt and Kaizer now represent Mr. Galestro, a death-eligible defendant in the same case.

In moving for disqualification, the government submitted a sealed affidavit describing Mr. Maggio as a central witness against Mr. Galestro. Mr. Maggio refused to waive the attorney-client privilege and joined in the government's motion.

Messrs. Levitt and Kaizer argued that there is no conflict because any confidences revealed to them by Mr. Maggio were also revealed to the government during Mr. Maggio's cooperation. Counsel also emphasized the potential death penalty and their long relationship with Mr. Galestro.

As the court observed, Mr. Galestro's interests are materially adverse to counsel's former client:

Should Mr. Maggio testify, Mr. Maggio's ability to show that his inculpatory testimony is true will affect the extent to which he receives a reduced sentence in connection with his cooperation agreement. Conversely, Mr. Galestro will have an interest in showing that Mr. Maggio's testimony is false, and Mr. Galestro's counsel will undoubtedly seek to attack Mr. Maggio's credibility on cross-examination and in statements to the jury. (Slip op. 7).

Counsel, moreover, have a 'duty of loyalty' to Mr. Maggio not to attack his credibility. Even apart from the conflict arising from cross-examination, their confidential communications with Mr. Maggio would convert them into unsworn witnesses during arguments to the jury. Slip op. 10.

As to counsel's argument that Mr. Maggio told the government what he told them, Judge Garaufis stated: 'The privilege attaches not to the information but to the communication of the information' (citation omitted).

As Judge Garaufis also noted, the early stage of the litigation diminishes the prejudice to Mr. Galestro in obtaining new counsel.

The court also cited the need to preserve the integrity of the proceedings and the government's interest in a fair trial.

In short, despite defendant's Sixth Amendment right to counsel of choice, the court found it necessary to grant the disqualification motion.

Rehabilitation Act

In Telesca v. The Long Island Housing Partnership, Inc., 05 CV 5509 (EDNY, Aug. 12, 2006), Judge Spatt denied defendants' motions to dismiss plaintiff's claims for monetary damages under section 504 of the Rehabilitation Act, 29 USC § 794 (2006). Plaintiff claimed that she was denied housing benefits on account of her disability.

Plaintiff asserted that defendants Long Island Housing Partnership Inc. (LIHP), the Town of Islip and the New York State Division of Housing and Community Renewal (DHCR) violated § 504 of the Rehabilitation Act by excluding her from purchasing a home in South Wind Village and other affordable housing programs because of her disability. Plaintiff also sought an injunction to enforce HUD regulations implementing the Rehabilitation Act.

Plaintiff suffers from Achrondroplasia--a type of dwarfism that causes spinal chord compression and degenerative disc disease--which impairs her mobility and causes constant pain. Doctors have advised her to avoid stairs and use a motorized scooter. Plaintiff applied to participate in the lotteries of two qualified low-income affordable housing projects. In June 2001 she was notified that she had been selected to purchase a home at South Wind Village in the Town of Islip. She notified LIHP, which organized the project, that she would need a handicapped-accessible unit either on a single level or with an elevator. LIHP suggested instead installing a chair lift, which would not have enabled plaintiff to take her scooter to the second floor of the unit.

After her meetings and conversations with representatives from LIHP concerning accessibility alterations to the unit, LIHP notified plaintiff in November that it was offering her home to the next qualified applicant.

Judge Spatt refused to consider extraneous documents submitted by defendants because they violated the requirements of Rule 12(c) for judgment on the pleadings. These materials were not an appropriate subject for judicial notice nor integral to the complaint or incorporated in it by reference.

Next, the court described the Rehabilitation Act as narrower than the Americans With Disabilities Act (ADA) because it applied only to programs receiving federal funding. Together the Rehabilitation Act and the ADA prohibit discrimination against qualified disabled individuals by requiring that they receive 'reasonable accommodations' that allow them access to public accommodations. Judge Spatt concluded that plaintiff had stated a claim under the Rehabilitation Act. First, plaintiff was a qualified individual with a disability. Second, she was selected to purchase an affordable house in a program partially funded with federal funds. Third, after being selected, she requested a handicap accessible unit and the request was denied. These allegations were sufficient to put defendants on notice of her disability discrimination claim and to permit her to offer supporting evidence.

Concerning plaintiff's claim for an order compelling defendants to comply with Rehabilitation Act regulations, Judge Spatt found those regulations inapplicable to the sale of affordable housing and limited to 'multifamily' rental projects. Slip op. 27-28.

Harvey M. Stone and Richard H. Dolan are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.

[This article is reprinted with permission from the September 8, 2006, issue of the New York Law Journal. Copyright © 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]