N.Y. Legal Aid Attorneys' Claim Can Proceed Against Union, Alleging Retaliation Over Lawsuit Against Anti-Israel Union Resolution

From Kopmar v. Ass'n of Legal Aid Attorneys, decided yesterday by Judge Paul Oetken (S.D.N.Y.) (though see also another post this morning rejecting a different part of the claim):

Plaintiffs, who are public interest lawyers in the greater New York City area, … Plaintiffs allege that their local chapter of the Association of Legal Aid Attorneys ("ALAA"), unlawfully retaliated against Plaintiffs for suing in New York state court to prevent the ALAA from promulgating a resolution that Plaintiffs viewed as antisemitic {and that] Plaintiffs characterize as "an 1,147-word diatribe against Israel"}…. Plaintiffs have stated claims under the LMRDA, at least as to the ALAA and members of its Amalgamated Council. The LMRDA protects Plaintiffs' right to freedom of expression, as well as their right to sue, largely irrespective of the content being expressed. Thus, … the ALAA and its officers were barred from disciplining Plaintiffs in retaliation for that lawsuit….

Section 101 of the LMRDA enumerates certain rights that all union members shall have, including the right to sue, and the right to freedom of expression. Section 609 makes it unlawful for a union to "fine, suspend, expel, or otherwise discipline" any member for exercising such rights ….

Here, whether viewed as "infringement" of Plaintiffs' Section 101 rights, or as "discipline" prohibited by Section 609, the ALAA may be liable if the charges against Plaintiffs were based on Plaintiffs' protected conduct. Members of the ALAA "filed charges and initiated expulsion proceedings against plaintiffs," and the ALAA defended the propriety of those charges against Plaintiffs' appeals until Plaintiffs finally prevailed before the PRB. That is sufficient to state at least an infringement claim, and likely a discipline claim as well, as to the union….

The only remaining question, then, is whether the ALAA's charges were filed in connection with Plaintiffs' exercise of Section 101 protected rights…. Section 101(a)(4) protects union members' "right to sue," and is "designed to give union members the tools to insure the fairness of their union as a representative institution. As relevant here, the statute bars unions from "limit[ing] the right of any member thereof to institute an action in any court." The protection "is not limited to suits by a union member against the union or its officers," and "appl[ies] to the broad range of disputes and grievances … which arise in the context of labor union affairs." … "[T]here is nothing in the Act which distinguishes between suits involving members as opposed to employee rights, between suits involving internal as opposed to external union problems, or between suits brought in good faith as opposed to those brought in bad faith."

Defendants object that the disciplinary charges were filed against Plaintiffs in part because they "gratuitously and recklessly dox[ed]" other union members, and that the doxing aspect of their lawsuit is not protected by the LMRDA. Even accepting Defendants' dubious premise that publicly naming parties in a lawsuit constitutes improper "doxing," it would be irrelevant. The union members who filed the charges against Plaintiffs were abundantly clear, both in emails to the union membership and in the text of the charges themselves, that the charges were at least in part based on the lawsuit itself. Thus, whether the Charging Defendants could have filed charges based solely on the alleged doxing, the charges here may be plausibly construed as based at least in part on Plaintiffs' overall lawsuit….

More broadly, Defendants argue that Plaintiffs' state-court lawsuit was "self-serving" and anti-democratic in nature, and therefore is unprotected by the LMRDA's right-to-sue provision. But the LMRDA is not limited to particular types of lawsuits, nor even to meritorious ones. Indeed, as the Ninth Circuit has explained, the right to sue would be meaningfully degraded "if a member of a union is required to make a pre-suit determination that the union may not discipline him for bringing it because upon a post-suit examination of the matter it will appear to some union official or judge that the member's action was brought in good faith …." …

Plaintiffs also allege that the charges interfered with their protected freedom of expression under Section 101(a)(2)….. [Whether or not] the act of filing a lawsuit itself is … protected by Section 101(a)(2), the disciplinary charges here also targeted the speech contained in Plaintiffs' lawsuit and the ideas that Plaintiffs sought to communicate. The charges faulted Plaintiffs for "baselessly and publicly smearing their fellow union siblings as antisemitic." Plaintiffs' alleged misconduct, then, was their public advocacy for ideas with which Defendants disagreed, not simply Plaintiffs' recourse to the judicial process. It is therefore at least plausible to read quotes like this as indicating that Defendants filed and advanced the charges in retaliation for Plaintiffs' protected expression….

Comments

[ReaderY]

The Union claimed that it was not retaliating for suing union officials but for naming them in the lawsuit, which it characterized as “doxing” and claimed was separate and distinct from the lawsuit itself.

Identifying parties is inherent in any lawsuit. As Professor Volokh will tell you (and does so repeatedly on this blog), courts require parties to be named absent narrow circumstances which the Union didn’t even bother to argue which would be relevant here.

This is perhaps to its credit. Since public-sector union officials voluntarily step into the public eye by taking on their position, such an argument would be patently meritless under the most lenient privaacy standard, even if New York didn’t have a specific law making it public policy to regard public-sector union officials and their official actions as public matters, which is one of the things the very law the plaintiffs sued under does.

What the Union is claiming here is almost identical to the claim the guy in New Jersey who got a warrant for Professor Volokh’s arrest for “harassing” him by sending him legal mail related to his lawsuit that Professot Volokh had intervened in made - that conduct inherent to a lawsuit constitutes “harassment.”

But unlike the guy in New Jersey, this claim was made by lawyers. So I would have done two things:

1. Treated the Union’s argument as a “just pled yourself out of court” admission that the lawsuit was the reason for its attempted discipline, rather than even giving it the dignity of treating it as an argument against it.

2. Sanction the lawyers involved for making a frivolous, vexatious claim. It’s one thing for some disgruntled guy in New Jersey to be making this sort of argument pro se. it’s quite another for licensed attorneys to be making it.