Richard Emery recently got a check for $190,000 from Mayor Rudolph Giuliani. That’s in addition to the $100,000 that the Mayor already sent him. The New York Civil Liberties Union’s checks from Mr. Giuliani run into the six figures. The Center for Constitutional Rights has collected $56,000. Ronald Kuby figures he has gotten more than $1 million from the city.
And some of the biggest prizes for these lawyers are yet to come. City Hall may well have to fork over millions more to this small band of free speech defenders.
Make no mistake about it, the Mayor is not a big fan of these lawyers. It’s not like he’s tossing them lucrative city contracts. The Mayor is making his enemies rich because the city must pay the legal fees of groups that have successfully sued City Hall for violating their First Amendment rights. A federal judge recently took note of “a relentless onslaught” of First Amendment litigation brought on by City Hall’s attempts to limit speech and expression. The judge’s remarks were prompted by the city’s decision to deny photographer Spencer Tunick a permit to shoot nude models on a residential city street at 5:30 a.m. The photographer hired Mr. Kuby and won his case.
Ironically enough, Mr. Kuby and his fellow First Amendment watchdogs are going to miss Mr. Giuliani when he eventually vacates Gracie Mansion.
“We talk in wistful terms about what it’s going to be like when Rudy Giuliani is gone,” Mr. Kuby said. “Rudy Giuliani is in large part responsible for maintaining my law practice.”
In the Tunick decision, Second Circuit Court of Appeals Judge Guido Calabresi said, “We would be ostriches if we failed to take note of the heavy stream of First Amendment litigation generated by New York City in recent years.”
Included in that stream was the case of Housing Works Inc. v. The City of New York. That’s the case in which Housing Works, the confrontational organization that provides housing for people with AIDS, sued the city for, in effect, taking away its federal funding because the group criticized the Mayor. In the lawsuit that followed City Hall’s actions, Judge Calabresi found “a clear and substantial likelihood” that the city had withdrawn Housing Works funds “in retaliation [for] criticism of the Mayor’s administration.”
As a result of that legal victory, Housing Works got its federal funding restored, and U.S. Department of Housing and Urban Development secretary Andrew Cuomo took away the city’s power to decide which groups would get federal dollars to house the homeless. And Mr. Emery’s law firm, which defended Housing Works, got $190,000.
“Mayor Giuliani is a lawyer,” Mr. Emery said. “He perfectly well understands constitutional balance and yet he tramples it regularly with the fervor of Savanorola. In the process, he’s established case law and publicized very important precedents for First Amendment rights. One could look at him oddly and ironically as a First Amendment hero.”
Daniel Connolly, special counsel at the New York City Law Department, maintains the Housing Works case was wrongly decided. He says Housing Works mismanaged its funds and deserved to be downgraded. “We don’t like writing big checks to anyone, but it is an assessment that we make in every case that we handle. There are fights we would like to take on that we can’t, in the risk of putting a case before a jury.”
Mr. Connolly said much of this litigation was filed under civil rights statutes designed to give impoverished plaintiffs access to the court system by ensuring that lawyers who took on these kinds of cases-and won them-would be paid the market rate.
“It was right-minded legislation, but it gives enormous advantage to the plaintiffs and enormous disadvantage to the defendants,” Mr. Connolly said.
Mr. Emery’s law firm, Emery, Cuti, Brinckerhoff & Abady, has collected another $32,000 for representing East Timor Action Network in a case in which the group was denied a permit to erect temporary street signs. (Mr. Emery’s co-counsel in that case, the Center for Constitutional Rights, got $56,000.) Mr. Emery was written a $65,000 check for representing news vendors upon whom the city wanted to impose hefty licensing fees.
Big Prizes in Future?
But his law firm’s biggest prize may yet be on its way. In another Housing Works case, a more general case charging that the city tried to put the group out of business, the law firm has already clocked about 2,000 hours. The case is slated for trial, perhaps as early as this fall.
In fact, Housing Works may prove to be the costliest of all the First Amendment plaintiffs. At the end of April, the Mayor reluctantly opened City Hall Plaza-but only by way of metal detectors-after Housing Works won a case saying the Mayor’s policy of limiting press conferences, rallies and demonstrations on or near the City Hall steps violated the First Amendment. U.S. District Court Judge Harold Baer ruled that the city’s rules were unconstitutional.
The case has gone on for nearly two years. The city has promulgated seven sets of rules. Each time the rules got to his desk, Judge Baer ruled against the city. (In some cases the city rewrote the regulations before Judge Baer ruled.) The case has involved two preliminary injunction hearings, a three-day trial, status conferences, depositions, motions and briefs. Private civil rights attorneys say that work is worth $500,000, at least. Norman Siegel, executive director of the New York Civil Liberties Union (N.Y.C.L.U.), said he hasn’t yet reviewed attorneys’ time sheets.
The city hasn’t said whether it will appeal that case-it has until May 8 to decide. If it doesn’t, the N.Y.C.L.U. can put in an application for legal fees. If the city does appeal, the N.Y.C.L.U.’s clock will keep ticking.
But Mr. Siegel has won other free speech cases against the city. He represented Rosalie Harman, a Human Resources Administration employee who was suspended without pay after speaking to ABC News about how the agency handles child abuse cases. The Second Circuit Court of Appeals found the policy unconstitutional; Ms.Harman was reinstated with all lost benefits and salary, and was paid about $12,000 in damages. The N.Y.C.L.U. got $90,000.
The Mayor’s First Amendment cases have cost taxpayers in other ways. The Metropolitan Transportation Authority-not a city agency-hired Skadden, Arps, Slate, Meagher & Flom at $416 an hour in its losing battle to defend its decision to take down bus ads for New York magazine that claimed the magazine was “possibly the only good thing in New York Rudy hasn’t taken credit for.” The Mayor did not find the ads humorous.
Actually, the city dodged a bullet in its most recent First Amendment case. When City Hall tried to withdraw funding for theBrooklyn Museum of Art over its controversial Sensation exhibit, the museum sued and won. Fortunately for City Hall, however, the museum’s officials gave up their right to obtain legal fees as part of the settlement.
Of course, the city doesn’t pay its lawyers based on the specific cases they do. But there’s a very telling statistic in the Mayor’s executive budget this year. In the last budget before Mr. Giuliani became Mayor, the Law Department-which defends the city in litigation-was allotted $60.8 million.
The most recent budget request was for $90.5 million.
