Preliminary injunction to immediately compensate assigned counsel – New York County Lawyers Association ET AL vs. The State of New York ET AL

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

 

PRESENT: HON. LISA HEADLEY PART 28M

Justice

——————— —————————– ———————–X

NEW YORK COUNTY LAWYERS ASSOCIATION,

BRONX COUNTY BAR ASSOCIATION,

QUEENS COUNTY BAR ASSOCIATION,

RICHMOND COUNTY BAR ASSOCIATION,

ASSIGNED COUNSEL ASSOCIATION OF NEW YORK STATE,

INC. (ACA-NYS, INC.),

MACON B. ALLEN BLACK BAR ASSOCIATION,

LATINO LAWYERS ASSOCIATION OF QUEENS COUNTY,

BROOKLYN BAR ASSOCIATION,

METROPOLITAN BLACK BAR ASSOCIATION,

ASIAN AMERICAN BAR ASSOCIATION OF NEW YORK,

 

 

Plaintiff, DECISION + ORDER ON

MOTION

– v –

 

THE STATE OF NEW YORK, THE CITY OF NEW YORK,

NEW YORK CITY DEPARTMENT OF FINANCE, SHERIF SOLIMAN,

 

Defendant.

——————– ———————— ———————– ————–X

 

The following e-filed documents, listed by NYSCEF document number (Motion 001) 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 131, 132, 133, 134

were read on this motion to/for

__PREL INJUNCTION/TEMP REST ORDR__

.

 

Before the Court is the Order to Show Case filed by plaintiffs, the New York County Lawyers Association, Bronx County Bar Association, Queens County Bar Association, Richmond County Bar Association, Assigned Counsel Association of New York State, Inc., Macon B. Allen Black Bar Association, and Latino Lawyers Association of Queens County (hereinafter, “plaintiffs”), for a preliminary injunction to immediately compensate assigned counsel, who represent children and indigent adults in Family Court, Criminal Court and other court proceedings in New York City, in the amount of $158.00 per hour. Defendants, the State of New York, The City of New York, New York City Department of Finance, and Sherif Soliman, in his official capacity as now-former Commissioner of the New York City Department of Finance (hereinafter, “defendants”) filed opposition papers. Plaintiffs filed a reply.

On April 21, 2022, this Court held oral arguments on the Order to Show Cause, and present before this Court were the attorneys for plaintiffs, Kramer Levin Naftalis & Frankel LLP by counsels, Michael Dell, Esq., and Aaron Webman, Esq., the Attorney General for the State of New York by Assistant Attorney Generals, Anjali Bhat, Esq. and Charles Sanders, Esq. for defendant, The State of New York, and Corporation Counsel by Assistant Corporation Counsel Jonathan Pines, Esq., for the City defendants.

In the Order to Show Cause, plaintiffs request that this Court issue an immediate preliminary injunction for defendants to set new rates for counsel at the rate of $158.00 per hour. In support of their motion, the movant-plaintiffs argue that implementing the increase pay rate of assigned counsel from $90.00 to $158.00 would prevent the ongoing violation of the constitutional rights of children and indigent adults, so that these litigants could receive effective legal representation by assigned counsel in Family and Criminal Court proceedings at the trial and appellate levels in New York City. Plaintiffs rely on a prior ruling of this Court in 2002, in which a preliminary injunction for the similar issue at bar was granted. See, New York County Lawyers’ Ass’n v. State, 192 Misc. 2d 424, 433 (Sup. Ct. 2002). Additionally, plaintiffs rely on a prior ruling, in 2003, in which this Court granted a permanent injunction against the State of New York and New York City. The Court ruled that the State and City of New York violated the New York State Constitution, as well as the United States Constitution for not increasing assigned counsel compensation, and the delays in such increase resulted in severe and irreparable harm to the due process rights of children and indigent adults. New York County Lawyers’ Ass’n v. State, 196 Misc. 2d 761, 771-784 (Sup. Ct. 2003).

Plaintiffs also argue that defendants’ failure to increase the hourly rates of assigned counsel since 2004 has caused the number of assigned counsel willing to take on cases to decrease. The decreased number of assigned counsel has led to an increased workload for the fewer assigned counsel in the program. Plaintiffs argue that the increased workload has directly caused assigned counsel to spend less time on tasks that are critical to effective representation. Plaintiffs further argue that a number of children and indigent adults are not receiving adequate legal representation, which directly violates their due process rights, liberty interests, and their right of having effective counsel at critical stages of the family and/or criminal law process. Furthermore, plaintiffs request that this Court follow precedent to end defendants’ ongoing violation of the New York and the United States Constitution and to prevent the severe and irreparable injury children and indigent adults will face as a result of defendants’ failure to increase compensation for assigned counsel.

In opposition, defendant (the State of New York) argues that the rate of compensation paid to assigned counsel is a budgetary issue, which lies in the discretion of the Legislative and Executive branches. Defendant (the State of New York) contends that the Executive and Legislative branches are currently in ongoing negotiations concerning compensation to assigned counsel. In addition, defendant argues that this Court should “refrain from intervening to avoid undermining the principle of separation of powers.” In addition, defendant argues that co-plaintiffs Metropolitan Black Bar Association, the Macon B. Allen Black Bar Association, the Latino Lawyers Association of Queens County, and the Asian American Bar Association of New York have no direct standing in this matter. Furthermore, at oral argument, the State of New York defendant conceded that there is a necessity for an increased rate, and that the Governor does not even “oppose doubling the rates.”

Also in opposition, defendants (the City of New York, the New York City Department of Finance, and Sherif Soliman in his official capacity as now-former Commissioner of DOF) contend that the State Legislature is engaged in ongoing discussions concerning the State’s budget, and requests that this Court refrain from entering any Order that may interfere in the State Legislature’s role in setting these rates. Additionally, the said defendants argue that delaying consideration of this matter is appropriate because plaintiffs have not established they will suffer irreparable harm in the absence of a preliminary injunction, and plaintiffs also fail to account for the complex practical and political considerations that are part of determining a rate increase. Therefore, defendants (the City of New York, the New York City Department of Finance, and Sherif Soliman in his official capacity as now-former Commissioner of DOF) request that this Court deny plaintiffs’ motion for a preliminary injunction.

In reply, plaintiffs argue, inter alia, the defendant’s argument that four plaintiff bar associations lack standing is erroneous. Plaintiffs argue that the State of New York defendant has waived this argument by failing to raise it in its Answer, and the four bar associations (Metropolitan Black Bar Association, the Macon B. Allen Black Bar Association, the Latino Lawyers Association of Queens County, and the Asian American Bar Association of New York) meet the requirements for third-party standing and organizational standing.

DISCUSSION

It is well settled that in order for a party to establish entitlement to a preliminary injunction, “a movant must establish a likelihood or probability of success on the merits, irreparable harm in the absence of an injunction, and a balance of the equities in favor of granting the injunction.” Stockley v. Gorelik, 24 A.D. 3d 535, 536 (2d Dep’t 2005). Movants must show that the irreparable injury is “material and actual for which monetary compensation is inadequate.” New York County Lawyers’ Ass’n v. State, 192 Misc. 2d 424, 433 (Sup. Ct. 2002). Additionally, “the determination to grant or deny a preliminary injunction rests in the sound discretion of the Supreme Court.” Coinmach Corp. v. Alley Pond Owners Corp., 25 A.D. 3d 642, 643 (2d Dep’t 2006).

After oral argument, and upon examination of the motion papers, affirmations, affidavits and exhibits presented, this Court hereby grants plaintiffs’ Order to Show Cause for interim injunctive relief to immediately compensate plaintiffs in the amount of $158.00 per hour. This Court finds that plaintiffs’ motion for a preliminary injunction is equitable, as plaintiffs established a likelihood of success on the merits, that severe and irreparable harm to children and indigent adult litigants would occur without an injunction, and a balance of the equities favor in granting the injunction.

This Court finds that the defendants have not set forth sufficient evidence for this Court to stray from precedent. “Stare decisis, [is] a departure to be resorted to only with the greatest restraint.” Matter of Khotim, 41 N.Y. 2d 845, 847 (1977). Here, plaintiffs established a likelihood of success on the merits by referencing the prior Court’s decision to grant injunctive relief in 2003 regarding this similar issue at bar. In 2003, the Court held “[t]hese litigants suffer irreparable constitutional harm when they are denied their rights to counsel, when they are unrepresented during critical periods of their proceedings where their due process and liberty rights are at stake because no assigned counsel are available to represent them, when they are represented by overburdened and inattentive assigned counsel who fail to, or are unable to, perform the basic tasks necessary to provide meaningful and effective representation, and when they must endure prolonged delays in Family and Criminal Court proceedings.” See, New York County Lawyers’ Ass’n v. State, 196 Misc. 2d 76, 784 (Sup. Ct. 2003).

This Court further finds that, without implementing this preliminary injunction, children and indigent adults would suffer severe and irreparable harm that is “imminent, not remote or speculative.” White v. F.F. Thompson Health Sys., Inc., 75 A.D. 3d 1075, 1077 (4th Dep’t 2010). Here, the plaintiffs have demonstrated that the quality of legal representation for children and indigent adults, as well as their due process rights would continue to decline without a preliminary injunction. The plaintiffs have demonstrated that such harm is neither remote nor speculative, as it is certain that a decrease in the number of assigned counsel leads to an already overburdened assigned attorney having to assume an increased workload. Furthermore, the plaintiffs have established that the overburdened workload affects the quality and time an assigned counsel spends on each child litigant or indigent adult’s case.

This Court also finds that a balance of the equities weighs in favor of granting injunctive relief because if such injunctive relief was not issued by this Court, the constitutional rights of children litigants and indigent adults would be violated. Said children and indigent adults would be subject to inadequate counsel, which would deprive them of the opportunity to have effective counsel in critical Family Court and Criminal Court proceedings. Furthermore, the interim injunctive relief would not interfere with defendants’ inherent or constitutional rights. Pursuant to the injunctive relief, defendants would be required to increase compensation for assigned counsel, a responsibility that has been bestowed on them long before this Court’s ruling.

In addition, this Court finds that the four bar associations and co-plaintiffs (Metropolitan Black Bar Association, the Macon B. Allen Black Bar Association, the Latino Lawyers Association of Queens County, and the Asian American Bar Association of New York) have standing in this case. Defendant (The State of New York) waived this argument, as they failed to include this defense in their Answer.

Inasmuch as the State of New York and the City of New York defendants contend that this matter is of paramount importance, we are again at the same point we were almost 20 years ago. It should also be noted that the State of New York defendant acknowledged, during oral argument, the necessity of increased compensation for assigned counsel. To avoid being in this position again, this Court hereby directs defendants (the State of New York and the City of New York) to revisit and consider an increase in salary for assigned counsel, who represent children and indigent adults in Family Court, Criminal Court and other court proceedings in New York City, at the same rate and at the same time the federal assigned counsel receive an increase in compensation.

 

Accordingly, it is hereby

ORDERED that plaintiffs’ Order to Show Cause seeking an interim preliminary injunction is GRANTED, and the defendants are directed to pay assigned counsel the interim rate of $158.00 per hour; and it is further

ORDERED that the directed pay rate of $158.00 per hour to assigned counsel is retroactive from February 2, 2022, the date plaintiffs’ Order to Show Cause was filed; and it is further

ORDERED that any requested relief sought not expressly addressed herein has nonetheless been considered; and it is further

ORDERED that within 30 days of entry, plaintiffs shall serve a copy of this Decision/Order upon the defendants with notice of entry.

This constitutes the Decision/Order of the Court.

_____7/25/2022_____

DATE

CHECK ONE:		CASE DISPOSED	X	NON-FINAL DISPOSITION
	X	GRANTED DENIED		GRANTED IN PART		OTHER
APPLICATION:		SETTLE ORDER		SUBMIT ORDER
CHECK IF APPROPRIATE:		INCLUDES TRANSFER/ REASSIGN		FIDUCIARY APPOINTMENT		REFERENCE

Footnote:

 

156916/2021 NEW YORK COUNTY LAWYERS ASSOCIATION ET AL vs. THE STATE OF NEW

YORK ET AL

Motion No. 001

 

 

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