To be Argued by:
ROBERT A. SPOLZINO
(Time Requested: 30 Minutes)
Court of Appeals
of the
State of New York
O
In the Matter of the Application of
VILMA LANCASTER, DONALD MILLER
and WILLIAM WHITE,
Petitioners-Appellants,
for a Judgment pursuant to Article 78 of the CPLR vacating
a Directive dated January 5, 2010 and compelling the
Incorporated Village of Freeport to Immediately comply
with New York Public Officers Law Section 18 and
Chapter 130, et seq. of the Village Code of the Incorporated
Village of Freeport
– against –
INCORPORATED VILLAGE OF FREEPORT and
BOARD OF TRUSTEES OF THE INCORPORATED
VILLAGE OF FREEPORT,
Respondents-Respondents.
(See inside Cover for Completion of Caption)
REPLY BRIEF FOR PETITIONERS-APPELLANTS
WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP
Attorneys for Petitioners-Appellants
3 Gannett Drive
White Plains, New York 10604
Tel: (914) 323-7000
Fax: (914) 323-7001
robert.spolzino@wilsonelser.com
Of Counsel:
PETER A. MEISELS
KATHLEEN A. DALY
Appellate Division, Docket No.: 2010-09082
Nassau County Clerk’s Index Nos.: 2876/10 & 5018/10
APPELLATE INNOVATIONS
(914) 948-2240 7738
_________________________
In the Matter of the Application of
WILLIAM F. GLACKEN, RENAIRE FRIERSON-DAVIS
and HARRISON J. EDWARDS,
Petitioners-Appellants,
for a Judgment pursuant to Article 78 of the CPLR
compelling the Incorporated Village of Freeport to
immediately comply with the New York Public Officers
Law § 18[3] and [4]; Chapter 130 of the Code of Freeport,
and §§ 103, 105, and 107 of the Public Officers Law for the
State of New York
– against –
INCORPORATED VILLAGE OF FREEPORT, ANDREW HARDWICK,
MAYOR, ROBERT KENNEDY, TRUSTEE, CARMEN PINEYRO,
TRUSTEE, WILLIAM H. WHITE, TRUSTEE, JORGE MARTINEZ,
TRUSTEE, each in their official capacity as “Trustee” for the Incorporated
Village of Freeport and collectively, together with Mayor Hardwick,
comprising the Board of Trustees for the incorporated Village of Freeport;
CUSTOMIZED CLAIMS SERVICES, LLC, in its capacity as claims
administrator for the incorporated Village of Freeport, and HOWARD
COLTON, in his official capacity as Village Attorney for the
Incorporated Village of Freeport,
Respondents-Respondents.
_________________________
Table of Contents
Table of Authorities ................................................................................................. iii
Preliminary Statement ................................................................................................ 1
Summary of Argument in Reply ................................................................................ 1
ARGUMENT ............................................................................................................. 4
I This Court Has Subject Matter Jurisdiction as the Constitutional Issues
Presented by the Appeal are both Preserved and Substantial .......................... 4
A. The constitutional issues were properly preserved. ................................... 5
1. The New York Constitutional Claims .................................................... 5
2. The Constitutional Issues were Raised and Decided by both the
Supreme Court and the Appellate Division ........................................... 6
B. The constitutional issues are substantial. ............................................ 13
II The Record Establishes that the Appellants did not Breach their Duty to
Cooperate ....................................................................................................... 16
III The Revocation and Termination of the Appellants’ Defense and
Indemnification Infringed their Constitutional Rights to Free Speech ......... 23
A. Garcetti does not apply. ...................................................................... 23
B. The restriction on the appellants’ speech was not “de minimus.” ...... 25
C. The Village’s demand was effectively a prior restraint. ..................... 27
IV The Open Meetings Law Violations were not “Mere Technical”
Violations ...................................................................................................... 28
Conclusion ............................................................................................................... 32
ii
APPENDIX
TAB 1— Letter from Court of Appeals, dated April 6, 2012 and the
submissions of the Appellants and Respondents.
TAB 2 — Order to Show Cause, dated May 5, 2010 and Affirmation of Stanley
A. Camhi in support, dated April 28, 2010.
TAB 3 — Letter from Harrison J. Edwards, dated May 21, 2010 on behalf of all
Petitioners consenting to Respondents’ consolidation motion.
TAB 4 — Excerpts from brief submitted on behalf of the Lancaster Appellants
in support of their appeal and filed in the Appellate Division, Second
Department.
TAB 5 — Excerpts from brief submitted on behalf of the Glacken Appellants in
support of their appeal and filed in the Appellate Division, Second
Department.
TAB 6 — Excerpts from brief submitted on behalf of the Village Respondents
and in opposition to the appeal of the Petitioners filed in the Appellate
Division, Second Department.
TAB 7 — Excerpts from reply brief submitted on behalf of the Lancaster
Appellants in further support of their appeal and filed in the
Appellate Division, Second Department.
TAB 8 — Excerpts from reply brief submitted on behalf of the Glacken
Appellants in further support of their appeal and filed in the
Appellate Division, Second Department.
TAB 9 — Excerpts from the memorandum of law submitted by the Glacken
Petitioners in support of the hybrid Article 78 proceeding.
TAB 10 — Affirmation and Affidavits of Appellants in opposition to the
Respondents’ motion to dismiss the appeal.
iii
Table of Authorities
Cases
Bond v. Floyd,
385 U.S. 116 (1966) ............................................................................................. 25
Boos v. Barry,
485 U.S. 312, 322 (1988)……………………………………………………….18
Cedar Swamp Holdings, Inc. v. Zaman,
487 F. Supp. 2d 444 (S.D.N.Y. 2007) .................................................................. 21
Crue v. Aken,
370 F.3d 668 (7th Cir. 2004) ................................................................................ 28
Esperanza Peace and Justice Center v. City of San Antonio,
2001 U.S. Dist. Lexis 6259 (W.D. Tex. May 15, 2001) ..................................... 25
Garcetti v. Ceballos,
547 U.S. 410 (2006) ................................................................ 9, 11, 12, 23, 24, 25
Gordon v. Village of Monticello,
207 A.D. 2d 55 (3d Dep’t 1994),
rev’d on other grounds, 87 N.Y.2d 124 (1995) .................................................... 30
Gordon v. Village of Monticello,
87 N.Y.2d 124 (1995) .................................................................................... 30, 31
Immuno AG v. Moor-Jankowski,
77 N.Y.2d 235, cert. denied, 500 U.S. 954 (1991) ................................................. 5
Katzman v. Victoria’s Secret Catalog,
167 F.R.D., 649, aff’d, 113 F. 3d 1229 (2d Cir. 1997) ........................................ 21
Matter of Local 342, Long Island Public Service Employees v. Town of
Huntington,
2012 N.Y. Misc. Lexis 2298 (Sup. Ct. Suffolk Cty. May 9, 2012) ..................... 23
iv
Nelson Electrical Contracting Corp. v. Transcontinental Insurance Co.,
231 A.D. 2d 207 (3d Dep’t. 1997)........................................................................ 18
Salinger v. Colting,
607 F.3d 68 (2d Cir. 2010) ..................................................................................26
Schultz v. State of New York,
81 N.Y. 2d 336 (1993) ............................................................................................ 8
Security & Law Enforcement Employees District Council 82 v. County of Albany,
96 A.D. 2d 976 (3d Dep’t. 1983), aff’d, 61 N.Y. 2d 965 (1984) ......................... 23
The New York State Nurses Association v. State University of New York,
39 Misc. 3d 588 (Sup. Ct. Kings Cty. 2013) ................................................. 29, 31
Thornhill v. Alabama,
310 U.S. 88 (1940) ............................................................................................... 27
Trump v. Trump,
179 AD 2d 201 (1st Dep’t 1992) .......................................................................... 15
Valz v. Sheepshead Bay Bungalow Corp.,
249 N.Y. 122, cert. denied, 278 U.S. 647 (1928) ................................................. 14
Weatherwax v. Town of Stony Point,
97 A.D. 2d 840 (2d Dep’t 1983) ........................................................................... 29
Zieper v. Metzinger,
474 F.3d 60 (2d Cir. 2007) ................................................................................... 16
Statutes
CPLR 5601(b)(1) …………………………………………………………………12
Public Officers Law § 18 ................................................................................ 1, 8, 13
Public Officers’ Law § 105(d) .......................................................................... 29, 30
Regulations
Freeport Code § 130 ................................................................................................... 8
v
Constitutional Provisions
U.S. Const. art. I ............................................................................................... passim
N.Y. Const. art. I, § 8 ................................................................................................. 5
Treatises
1-11 New York Appellate Practice § 11.03[3][a] .................................................... 12
Karger, The Power of the New York Court of Appeals, § 38 ................................. 14
Preliminary Statement
This brief is submitted on behalf of the appellants in reply to the brief
submitted by the respondents.
Summary of Argument in Reply
The respondents paid $3.5 million to settle a lawsuit brought against the
Village. They could have “ended the bleeding” of attorneys’ fees, as they claim
was their goal, by settling the claims against the appellants, as well, since the
appellants, who no longer had any authority to act on behalf of the Village, were
willing to settle the case. R.243, ¶ 62; R.407, ¶ 22; R.25, ¶ 22. The respondents,
however, were more concerned about the fact that the appellants were prepared to
state publicly that they objected to the settlement payment. R.243, ¶ 58. So they
insisted that, as part of the settlement, the appellants agree to a “gag order,”
prohibiting them from airing their opinions of the settlement. R.243, ¶ 58. When
the appellants refused, the respondents revoked the defense and indemnification to
which the appellants were entitled under Public Officers Law § 18 and the
corresponding local laws. R.26, ¶25; 241, ¶ 49.
These facts raise the central questions presented by this appeal. May a
municipality threaten to deprive a municipal official or employee of defense and
indemnification if he or she does not give up the right to speak freely? When the
official or employee refuses to relinquish the right to free speech, may the
2
municipality deprive the official or employee of the benefit of defense and
indemnification as a consequence of insisting on his or her First Amendment
rights? These are substantial constitutional questions.
To argue, as the respondents do, that their action was a “de minimus
imposition at best” on the appellants because this settlement was “far and away in
the best interests of the public,” and the appellants would continue to have “wide
latitude” to say virtually anything they wanted about the settlement agreement —
as long as they did not criticize it —Resp. Br. at 66, is offensive to the values of
the First Amendment. The respondents’ further assertion, that there is no
constitutional violation because the prohibitive language was contained in a
stipulation between private plaintiffs and the appellants, Resp. Br. at 70, is
fundamentally flawed. The Water Works plaintiffs may have come up with the
idea of a “gag order,” but it was not the Water Works plaintiffs who threatened to
revoke the appellants’ defense and indemnification if the appellants would not
agree, and it was not the Water Works plaintiffs who terminated the appellants’
defense and indemnification because the appellants would not agree to a settlement
that included a “gag order.” That is government action which is subject to the First
Amendment.
The appeal raises two additional issues with respect to the respondents’
revocation of the appellants’ defense and indemnification. Is the refusal to agree to
3
a settlement, irrespective of the First Amendment implications, a refusal to co-
operate within the meaning of Public Officers’ Law § 18? The appellants submit
that it is not. Second, may the Board of Trustees of a Village revoke the defense
and indemnification of an official or employee in a private meeting that fails to
satisfy any of the requirements for an executive session under the Open Meetings
Law and in fact followed a pattern of open meetings law violations? Again, the
appellants submit that it may not.
For all of these reasons, the appellants submit that the order of the Appellate
Division should be reversed and the petitions should be granted. The resolution
that the respondents adopted should, therefore, be declared null and void. Freeport
should be required to reimburse the appellants for any expenditures they have
made in the defense of the Water Works actions and, because of the Open
Meetings Law violation, should be required to pay the attorneys’ fees and litigation
expenses the appellants have incurred in this proceeding.
4
ARGUMENT
I
This Court Has Subject Matter Jurisdiction as the
Constitutional Issues Presented by the Appeal are
both Preserved and Substantial
In an effort to avoid the important and substantial constitutional issues
before this Court, the respondents argue, even after the Court’s sua sponte
jurisdictional inquiry1, that subject matter jurisdiction is lacking. This is a meritless
argument. The constitutional issues are substantial. They arise out of the
respondents’ demand that the appellants forfeit their free speech rights in order to
retain their defense and indemnification under the Public Officers Law, and the
retribution that followed when the appellants refused to sacrifice their fundamental
rights. These issues are not, as the respondents now claim, a “fanciful creation
designed by their attorneys to buy them another round of judicial review.” Resp.
Br. at 19. Rather, they were raised and decided in both the Supreme Court and the
Appellate Division. At their core, these issues require the Court to decide whether
the government can use the defense and indemnification of an official or employee
to enforce conformance to its viewpoint. Clearly, it cannot. Even more clearly, the
respondents’ attempt to do so here presents a substantial constitutional question
that is within the jurisdiction of this Court to determine.
1 Copies of the letters with regard to that inquiry are annexed to this Reply Brief in the
tabbed Appendix [Tab 1].
5
A. The constitutional issues were properly preserved.
The respondents argue that the appellants cannot assert a violation of the
New York State Constitution because they did not raise this claim below and that
the Glacken appellants cannot raise the constitutional issue “because their
submissions below did not allege that the withdrawal of their defense and
indemnification violated their first amendment rights.” R. 21. Neither contention is
correct. While the respondents concede that the Lancaster appellants raised First
Amendment claims, they contend that those claims alleged only that the “gag
order” impaired the right of public officials to comment on matters of public
concern. R. 22. The record of the proceedings below, as well as long-standing
constitutional principles, defeat the respondents’ arguments.
1. The New York Constitutional Claims.
The New York State Constitution is even more protective of free speech
rights than the United States Constitution. See Immuno AG v. Moor-Jankowski, 77
N.Y.2d 235, 250, cert. denied, 500 U.S. 954 (1991) (“whether by the application of
‘interpretive’ (e.g., text, history) or ‘noninterpretive’ (e.g., tradition, policy) . . .
factors, the protection afforded by the guarantees of free press and speech in the
New York Constitution is often broader than the minimum required by the Federal
Constitution”) (internal quotation marks and citations omitted). Thus, to the extent
6
that the respondents violated the federal constitution, they have also necessarily
violated the New York State Constitution.
2. The Constitutional Issues were Raised and Decided by both the
Supreme Court and the Appellate Division.2
This matter began as two separate proceedings, one commenced by the
Lancaster appellants and the other commenced by the Glacken appellants. The two
proceedings were consolidated on the respondents’ motion. In making that motion,
the respondents’ counsel argued that “both cases raise virtually the identical issue -
- whether the Village properly withdrew the defense and indemnification it
previously provided petitioners in a federal lawsuit which the Village settled due to
their failure to cooperate with the Village with respect to the settlement of that
action.” Appendix, Tab 2 pg. 2, ¶ 1. In fact, in support of the consolidation of
both proceedings for all purposes, the respondents argued that “ [i]t is clear that the
Glacken and Lancaster proceedings concern common issues of law and fact.
Consolidation of the two proceedings will preserve judicial resources and avoid the
possibility of inconsistent results.” Id., pg. 6, ¶15. The appellants did not oppose
the consolidation. Appendix, Tab 3.
2While not included in the record, pertinent pages of the memoranda of law submitted by
both the appellants and the respondents in the underlying proceedings are annexed to this Reply
Brief in the tabbed Appendix.
7
In these consolidated proceedings, the Lancaster appellants argued that the
conditional stipulation that the Village demanded raised a number of First
Amendment issues. Specifically, counsel for the Lancaster appellants argued that:
“the Village’s action rescinding the petitioner’s defense and
indemnification in consequence of their justified refusal to be
silenced, is both illegal and an improper restraint upon Petitioner’s
First Amendment rights. Indeed, the United States Supreme Court
has made clear that statements made by public officials on matters
of public concern must be afforded First Amendment
protection…”
“[The] non-disparagement clause, promoted by whomever, runs
directly counter to transparent government, violates the First
Amendment rights of petitioners, and dismisses the rightful
expectations of the electorate that the Petitioners served.”
“[The] Petitioners’ attempt to meet their ‘obligations to take
positions on controversial political questions’ cannot be construed
as a lack of cooperation for purposes of entitling the Village to
withdraw their defense and indemnification. To the contrary, the
threat of withdrawal of Petitioner’s defense and indemnification
unless they acquiesced in their relinquishment of their
constitutional rights, and the ultimate directive to do exactly that,
constituted nothing less than unlawful behavior.”
R.222, ¶ 7 and 224, ¶ 11.
Similarly, the Glacken appellants raised issues concerning the constitutional
validity of what they described as a “one-way gag order,” arguing that there was no
legal or factual basis for terminating their defense and indemnification and that the
conditional stipulation proffered by the Village was both “illusory and
disingenuous” because it required them to “waive constitutionally-protected First
8
Amendment rights . . .” R.240, ¶ 46; R. 242-43, ¶ 58; R. 245, ¶ 76. Moreover, the
Glacken appellants expressly urged the Supreme Court to reject the respondents’
construction of the Public Officers Law because that construction had the effect of
impairing their free speech rights. Specifically, they stated:
[t]here is no provision in either Public Officer Law § 18
or Freeport Code § 130 et seq. that defines Petitioners’
duty to cooperate in the defense of the actions so as to
include a requirement that Petitioners waive any and all
claims against the plaintiffs in that actin, nor does the
statute require Petitioners to waive their right to object or
criticize a settlement between Freeport and the Water
Works plaintiffs as a condition precedent to the
continued application of Public Officers Law § 18 to
Petitioners’ defense in the Water Works actions.
R. 399. The Glacken appellants also cited to and incorporated into their petition the
First Amendment concerns raised by their former counsel, Peter Meisels, in his
letter addressed to the Village’s counsel. R.240, ¶ 46; R.245 ¶ 76.3
Significantly, the respondents vigorously opposed the constitutional
arguments raised by all of the appellants in the Supreme Court. With respect to the
Lancaster appellants, the respondents argued that “[c]riticism by Petitioners of the
Village’s Settlement is not speech which is protected by the First Amendment.”
R.103, ¶ 38. They also urged the trial court to reject the Lancaster appellants’
claim of a First Amendment violation because “restriction[s] on [appellants’]
3 It is because the Glacken Appellants raised their first amendment concerns at the
earliest opportunity, that the Village Respondents’ reliance upon Schultz v. State of New York, 81
N.Y. 2d 336 (1993) as “appeal with [a] similar procedural history” is misplaced. Resps. Br. at 21.
9
speech . . . with respect to the Village’s settlement of the Water Works action does
not violate the First Amendment.” R. 104, ¶ 41. With respect to the Glacken
appellants, the respondents raised virtually identical arguments, asserting that the
Glacken appellants’ “First Amendment rights were not implicated” by the
conditional stipulation. R.378. Similarly, they urged the trial court to reject any
constitutional challenge by the Glacken appellants as they were public officials,
and that the “[Garcetti] line of cases would suggest that petitioners’ First
Amendment rights are not implicated by restrictions on their speech.” R.378, ¶ 49,
n 6.
The fact that the First Amendment issue was raised on behalf of all of the
appellants is confirmed not just by the respondents’ opposition, but by the Supreme
Court’s decision. As the record reflects, the Supreme Court, while agreeing with
the respondents, addressed the constitutional issue as having been raised by all of
the petitioners, as it was:
[P]etitioners’ argument that their First Amendments
rights would be infringed upon by agreeing not to
interfere, challenge or criticize the settlement to be
unavailing. The Court finds the condition of non-
disparagement of the settlement reasonable, given the
benefits achieved by the petitioners from the settlement.
R.14.
10
All of the appellants clearly raised the constitutional issues in the Appellate
Division. The Lancaster appellants framed the issues to be reviewed by the
Appellate Division as follows:
Q: Can the government deprive an elected or
appointed official of a statutorily mandated benefit
premised solely upon that official’s decision not to
consent to a prior restraint on speech relative to a
matter of public concern?
Q: Can the government force an elected or appointed
official to waive First Amendment rights and
subordinate his/her representative duties and
obligation to his/her personal interest?
Q: Can the refusal to waive a constitutionally
protected right or to forego one’s responsibilities
as a government official, be tantamount to a lack
of cooperation for defenses and indemnification
purposes?
Appendix, Tab 4, pgs. 3-4.
In their multi-pronged First Amendment argument to the Appellate Division,
the Lancaster appellants argued that the lower court had erred because:
“The First Amendment prohibits not only direct limitations on speech
but also adverse governmental action against an individual because of
their exercise of First Amendment freedoms.” Id. pg. 13 (internal
quotation and citation omitted);
“[I]n retribution for appellants’ refusal to agree to a prior restraint on
speech, or to otherwise be silenced on matters of public concern, the
Village revoked statutorily mandated defense and indemnification
benefits owing appellants. Such revocation was plainly unlawful.”
Id., pg. 14 (citation omitted)
11
“Under the auspices of ‘cooperation’ the Village sought to silence the
positions of appellants on an important Village matter. It did so
before any such positions were expressed, thus constituting an
unlawful prior restraint on speech.” Id., pg. 14 (citations omitted).
The United States Supreme Court’s decision in Garcetti v. Ceballos,
547 U.S. 410 (2006) does not apply in the context of this case because
none of the appellants were appointed officials except for Lancaster,
and with respect to Lancaster, “[Garcetti] only restricts the First
Amendment rights of non-elected government employees on
expressions made pursuant to their official responsibilities. It does
not restrict . . . an employee’s right to speak as a private citizen on
matters of public concern.” Id., pg. 18 (citations omitted).
The Glacken appellants expressly adopted each and every constitutional argument
raised by the Lancaster appellants. See Appendix, Tab 5, pgs. 30-31.
Again, the respondents addressed each of the constitutional arguments raised
by the appellants. In fact, they framed one item in their “Counter-Statement of
Questions Presented,” as follows:
“Did the Supreme Court properly determine that the non-
disparagement clause contained in the Stipulation of
Discontinuance did not infringe upon the Appellants’
First Amendment Rights?”
Appendix, Tab 6, pg. 1.
The respondents now claim that the Lancaster appellants failed to adequately
address the issue of prior restraint, id., pgs. 37-38, despite the fact that they argued
in the Appellate Division that the conditional stipulation did not amount to a prior
restraint, as the appellants were free to and did in fact choose not to participate in
the settlement. Id., pg. 39. They also argued that the termination and revocation of
12
defense and indemnification was not a retaliatory act, but was mandated once the
appellants “failed to cooperate by unreasonably refusing to participate in a
settlement.” Id., pg. 40. Finally, citing to Garcetti, the respondents asserted that the
prohibited language of the stipulation was not subject to First Amendment
protections as the appellants were both former and current public employees. Id.,
pg. 41. Even if Garcetti did not apply, respondents asserted that the conditional
stipulation was “narrowly tailored” to achieve the Village’s “compelling interest”
in a global settlement. Id., pgs. 43-50.
The Appellate Division, however, addressed the prior restraint issue directly,
holding that “under the circumstances of this case, non-disparagement clauses set
forth in the stipulations of settlement and discontinuance negotiated on their behalf
in the underlying civil actions did not constitute prior restraints on free speech.” R.
7. Thus, the First Amendment issues were raised at the Supreme Court and in the
Appellate Division by all appellants and, accordingly, there is no basis in the
record for the respondents’ argument that those issues have not been properly
preserved. Moreover, because the constitutional issues were properly preserved, the
non-constitutional issues raised by the appellants can also be reviewed. See 1-11
New York Appellate Practice § 11.03[3][a] (“when an appeal as of right lies from a
final Appellate Division order under CPLR 5601(b)(1), the Court of Appeals may
consider all issues that are otherwise within its scope of review”).
13
B. The constitutional issues are substantial.
This appeal arises in the context of a dispute over the defense and
indemnification of public officials and employees under Public Officers Law § 18.
The respondents’ attempt to characterize the issue presented here as solely
involving “whether the Village properly withdrew Appellant’s defense and
indemnification in the Waterworks actions based upon their failure to cooperate as
required,” Resps. Br. at 23, ignores what they did and how that violates the core
constitutional principles established by the First Amendment and the
corresponding provisions of the New York State Constitution.
There can be no real dispute that the respondents insisted that the appellants
accept a one-way “gag order” as a condition of settling the underlying action and
that when the appellants refused to do so, the respondents revoked their defense
and indemnification. R.216, ¶ 8; R.98. Because the appellants have a constitutional
right to free speech and the respondents took governmental action to threaten,
coerce and then punish the appellants for insisting on that right, the appeal presents
a substantial constitutional issue. The critical question before this Court is whether
the refusal of a municipal official or employee to waive his or her fundamental
First Amendment rights is a breach of the duty to cooperate under the Public
Officers Law. Answering that question “not only directly but necessarily” involves
the construction of both the United States Constitution and the New York State
14
Constitution. It therefore presents a substantial constitutional question that is
within the jurisdiction of this Court. See Karger, The Power of the New York
Court of Appeals, § 38 (quoting Haydorn v. Carroll, 225 N.Y. 84, 87-88 [1918]).
Simply put, if the Supreme Court and the Appellate Division incorrectly
decided that the “gag order” was permissible and that the appellants breached their
duty to cooperate by refusing to execute the conditional stipulation of
discontinuance, then the appellants’ free speech rights have been violated. Thus,
the Appellate Division’s order is appealable as of right under CPLR 5601(b)(1).
See, e.g., Valz v. Sheepshead Bay Bungalow Corp., 249 N.Y. 122, cert. denied, 278
U.S. 647 (1928) (holding that “[w]here the question of whether a judgment is the
result of due process is the decisive question upon an appeal, the appeal lies to this
court as a matter of right.”)
The respondents’ final argument as to lack of jurisdiction, that the issue is
not “substantial” because the constitutional issues raised involve little more than a
dispute between private parties — the appellants and the Water Works plaintiffs —
is flat out wrong. It was the respondents, not the Water Works plaintiffs, who
advised the appellants there would be consequences if the appellants did not sign
the stipulation “as is” and agree to the “gag order.” R.240, ¶¶ 45-46. It was the
respondents, not the Water Works plaintiffs, who carried through on the threat and
revoked the appellants’ defense and indemnification when they would not agree to
15
forfeit their constitutional rights. R.65-68. The respondents, in fact, had already
executed a separate stipulation of settlement with the Water Works plaintiffs by the
time the conditional stipulation, with its constitutionally offensive provision, was
presented to the appellants on a “take it or leave it” basis. R.43-57. Significantly,
when the appellants’ counsel, Mr. Meisels, objected to the conditional stipulation
with its prohibitive language, the respondents’ counsel, Mr. Warren, did not
disavow it or state that it was required by the Water Works plaintiffs as a condition
of settling. Rather, he defended it, going so far as to reserve all of the Village’s
rights, “including, but not limited to, its right to cease all payments for defense or
indemnity which accrue after November 16, 2009.” R.216-17.
The respondents’ reliance on Trump v. Trump, 179 A.D. 2d 201 (1st Dep’t
1992) for the proposition that the enforcement of an agreement between private
parties does not constitute a prior restraint is misplaced. The issue in Trump was
whether a confidentiality clause that had already been voluntarily agreed to in an
existing post-nuptial agreement could be incorporated into a judgment. There was
no such agreement here, however, since the appellants refused to agree to the
respondents’ settlement terms. Thus, the issue here is not a voluntary waiver of
First Amendment rights, but a municipality’s attempt to force its officials and
employees to waive their First Amendment rights. The appellants could have freely
and voluntarily chosen to waive their constitutional rights. They chose not to do so
16
and were punished for their refusal. That is an unconstitutional exercise of
governmental authority, not the enforcement of a private agreement. See Zieper v.
Metzinger, 474 F.3d 60, 65-66 (2d Cir. 2007) (the “First Amendment prohibits
government officials from encouraging suppression of speech in a manner which
‘can reasonably be interpreted as intimating that some form of punishment or
adverse regulatory action will follow the failure to accede to the official’s
request’”) (internal citation omitted). For these reasons and for the reasons set forth
in the Appellants’ initial brief, the issues presented are substantial.
II
The Record Establishes that the Appellants
did not Breach their Duty to Cooperate
The appellants did not put the Village treasury at risk; the respondents did.
The record establishes that the appellants were willing to settle the underlying
litigation as long as the settlement did not abrogate their right to speak freely about
the settlement. R.243, ¶ 62; R.407, ¶ 22; R.25, ¶ 22. The respondents, however,
were more concerned about the fact that the appellants were prepared to state
publicly that they objected to the settlement payment. R.243, ¶ 58. So they insisted
that, as part of the settlement, the appellants agree to a “gag order,” prohibiting
them from airing their opinions of the settlement. R.243, ¶ 58. There was no
benefit to the Village by insisting on that term; there was only political benefit to
17
the respondents. The duty to co-operate cannot require a municipal official or
employee to agree to settlement terms, at peril of losing his or her defense and
indemnification, solely because those terms provide a political benefit to the
current officeholders.
The record simply does not support the respondents’ position that the Water
Works plaintiffs would not settle the underlying litigation without the “gag order.”
There is no correspondence or other writing from them insisting on that condition.
There is nothing in the record from Mr. Warren, the appellants’ counsel in the
underlying action, who was an active participant in the negotiations, advising
anyone that the Water Works plaintiffs had demanded silence as a non-negotiable
part of the deal. There is no affidavit here from Mr. Warren stating that the Water
Works plaintiffs would not settle without such an agreement. There is only the
affidavit of respondent Howard Colton, who asserted upon information and belief,
that the clause “was insisted upon by the Water Works plaintiffs.” R.95. Surely if
that fact were true, and was as critical to this litigation as the respondents now
argue that it is, they would have offered some evidence from someone with
personal knowledge, like Mr. Warren, who could have attested to the truth of that
assertion. But they did not. Instead, they now rely on the words used by appellant
Harrison J. Edwards, responding to the Colton affidavit, referring to the stipulation
as “insisted on by the Water Works plaintiffs.” R.396. Edwards, of course, had no
18
personal knowledge of that fact. He was merely using the same terminology as
Colton had used in the affidavit to which he was responding. His statement
certainly cannot be read as an admission of a fact as to which he had no personal
knowledge.
The respondents’ argument in this regard is, in any event, without merit. It
was the respondents, not the Water Works plaintiffs, who threatened to revoke and
then did revoke the appellants’ defense and indemnification. That was a
governmental act, not a private act. Moreover, even if the one-way gag order had
been a non-negotiable requirement of the Water Works plaintiffs (and there is no
evidence that it was), this would still not have justified the actions taken by the
respondents. Demanding that First Amendment rights be forfeited in order to
placate a certain constituency cannot be reconciled with fundamental constitutional
values. See Boos v. Barry, 485 U.S. 312, 322 (1988) (“we have indicated that in
public debate our own citizens must tolerate insulting, and even outrageous, speech
in order to provide ‘adequate breathing space' to the freedoms protected by
the First Amendment”) (internal citations omitted).
Here, moreover, even if the appellants’ interests diverged from those of the
Village, they had a right to be defended and indemnified. The case law recognizes
that right. See Nelson Electrical Contracting Corp. v. Transcontinental Insurance
Co., 231 A.D. 2d 207 (3d Dep’t. 1997). The respondents completely ignore that
19
conflict, arguing that since the Village was funding the defense, it had the right to
compel the appellants to sign the conditional stipulation, notwithstanding the
appellants’ assertions, through their counsel, that their best interests were not being
served by entering into such a stipulation. Since the appellants were always ready
and willing to sign an unconditional stipulation of discontinuance with prejudice,
however, the respondents could have “stopped the bleeding” anytime they wanted
to do so. The fact that they did not establishes that they were more interested in the
“gag order” than the settlement. Thus, the respondents’ argument that the
appellants were somehow holding the Village “hostage” is absurd.
That argument is further undercut by the fact that the appellants were willing
to sign the stipulation without the “gag order” even though it did not “globally
settle” the Water Works actions. At the time, the appellants remained exposed to
claims from other non-settling defendants, including the County of Nassau. None
had interposed their answers, cross-claims or affirmative defenses due to the
pending motion to dismiss. Moreover, the stipulation did not include a general
release of the appellants from the Water Works plaintiffs, as requested by Mr.
Meisels, notwithstanding the fact that the appellants were required to waive any
claim that they had against the Water Works plaintiffs and issue general releases.
R. 59.
20
In addition, and contrary to the respondents’ claims, the proffered stipulation
lacked the standard language that the settlement was not to be construed as an
admission of wrongdoing. This was obviously a deliberate omission. Notably, such
a provision was included in the separate settlement agreement between the Water
Works plaintiffs and the respondents. This provision provided:
The undersigned hereby agree that the Settlement is not
an acknowledgement or an admission of wrongdoing by
the current Mayor Andrew Hardwick, Village Attorney
Howard Colton, nor by the current Board of Trustees of
the [Village] nor by the [Water Works plaintiffs] and
that this suit is being settled, among other reasons, to
avoid further litigation and to avoid the costs, trouble and
distractions such further litigation would involve.
R. 53 ¶ 8.
When Mr. Meisels first reviewed the proffered stipulation, received late on
November 11, 2009, he immediately wrote to Mr. Warren with his concerns about
the omission of comparable language in the separate stipulation the appellants were
being asked to sign, and requested that a similar clause be inserted. R. 211. Mr.
Warren, rejected this suggestion. R. 215. This was very problematic for the
appellants, considering the fact that they were being accused of a heinous breach of
their duties as public officials. The centerpiece of the Water Works actions against
the appellants was a civil RICO claim alleging that they were participants in a
criminal enterprise which was intended to deprive the Water Works plaintiffs of
their property. Some of the appellants were practicing attorneys and all were long-
21
standing members of the community who had vigorously denied these unproven
allegations and had participated in the preparation of the defense in the Water
Works actions. Numerous courts have recognized the almost inevitable
stigmatizing effect on those named in a civil RICO action. See Katzman v.
Victoria’s Secret Catalog, 167 F.R.D., 649, 660, aff’d, 113 F. 3d 1229 (2d Cir.
1997). Indeed, courts have recognized that civil RICO is considered an unusually
potent weapon, often referred to as the “litigation equivalent of a thermonuclear
device.” See Cedar Swamp Holdings, Inc. v. Zaman, 487 F. Supp. 2d 444, 449
(S.D.N.Y. 2007).
Finally, and in addition to all of the foregoing, the conditional stipulation
prohibited any criticism as to any of the terms contained in either the Village’s
separate settlement agreement or by the appellants to this stipulation. There was no
reciprocal obligation required of either the Respondents or the Water Works
plaintiffs. Compare R. 43-57 with R. 58-60. The effect of this is that the appellants
would be forced to remain silent while the Village and its current officials would
be free to blame the $3.5 million settlement on the appellants’ conduct — which is
ultimately what Mayor Hardwick did in his press release. R. 193-94.
These facts clearly disprove any claim by the respondents that the appellants
refused to co-operate. Moreover, the trial court made only a cursory finding that
the Village acted diligently to bring about cooperation. In fact, the Village did
22
nothing. It merely demanded that the appellants execute a stipulation which was
clearly not in their best interest. While the respondents hang their hats on the many
months of negotiations with Mr. Meisels, the undisputed fact remains that Mr.
Meisels was not privy to the settlement discussion leading to the Village’s
settlement with the Water Works parties and did not participate in the drafting of
the conditional settlement that Mr. Warren attempted to foist upon the appellants
with directions to take it or leave it. The one-way gag order appeared for the first
time in the November 10, 2009 stipulation. Negotiations were over long before Mr.
Meisels ever had a chance to participate.
In short, there is nothing in the record or in the orders of the Supreme Court
or the Appellate Division to support a finding that the Village acted diligently to
secure the Appellants cooperation. Under these facts, the Supreme Courts and the
Appellate Division erred in finding that the appellants’ refusal to sign the proffered
conditional stipulation of discontinuance amounted to “wilful and avowed
obstruction.” R.7; see also R.14. For these reasons and for the reasons stated in the
initial brief, the respondents did not even come close to meeting their “heavy
burden of proof” demonstrating that they “acted diligently in seeking to bring
about the insured’s co-operation . . . that the efforts employed by [them] were
reasonably calculated to obtain the [Appellants’] co-operation . . . and that the
attitude of the [Appellants] was one of willful and avowed obstruction.’” Thrasher
23
v. United States Liab. Ins. Co., 19 N.Y. 2d 159, 169 (1967) (internal citation
omitted).
Finally, there was no gift of public funds here and there would have been no
such gift even if the respondents had not revoked the appellants’ defense and
indemnification. Where there is a prior legal obligation to defend, the
constitutional provision against a gift of public funds is not implicated. See
Security & Law Enforcement Employees District Council 82 v. County of Albany,
96 A.D.2d 976 (3d Dep’t. 1983), aff’d, 61 N.Y. 2d 965 (1984); Matter of Local
342, Long Island Public Service Employees v. Town of Huntington, 2012 N.Y.
Misc. Lexis 2298 (Sup. Ct. Suffolk Cty. May 9, 2012) (same). Here, for all of the
reasons that have been stated, there was a clear obligation to defend. Accordingly,
the respondents’ argument in this regard is without merit.
III
The Revocation and Termination of the Appellants’
Defense and Indemnification Infringed their
Constitutional Rights to Free Speech
A. Garcetti does not apply.
The respondents’ argument that the rule established in Garcetti bars the
appellants’ First Amendment claim because the appellants were each, at some
point, public officials is without merit. Not surprisingly, the respondents cite no
authority for this proposition. The appellants submit that there is none.
24
The Garcetti Court held that before it can be determined whether speech by
a public employee is entitled to constitutional protection, a threshold inquiry must
be made as to whether the employee was speaking as a private citizen or pursuant
to official duties. 547 U.S. at 421 (“when public employees make statements
pursuant to their official duties, the employees are not speaking as citizens for First
Amendment purposes”). Here, all of the Appellants, except for Lancaster and
White, were not serving in any capacity with the Village and no longer had any
official duties on behalf of the Village at the time of the proposed settlement. Thus,
they could only have been speaking as private citizens and any comments they
would have made addressing a matter of public concern must be deemed protected
political speech.
With respect to Lancaster, the respondents have offered nothing in support
of her official duties other than vague and conclusory statements as to how any
criticisms or concerns that might be voiced by her would have jeopardized either
the settlement agreement or detrimentally affected the operation of the Village
Treasurer’s office. The Constitution requires more.
Similarly, with respect to White, an elected member of the Board of
Trustees, the respondents have presented no reason why his silence on the
settlement would have been essential to the efficient operation of Village
government. Indeed, as an elected legislator, he was duty-bound to state his
25
position on matters of public concern, which presumptively included the
expenditure of public monies. See Bond v. Floyd, 385 U.S. 116 (1966). Notably,
Mayor Hardwick felt the same way, when he issued a public statement asserting
that he considered it his “duty” to vote for this settlement. R.193. Apparently, the
respondents’ position is that an elected official who agrees with them has a right
and a duty to speak out, but one who disagrees has neither. That view is not
consistent with the First Amendment or the free speech protections of the New
York State Constitution.
B. The restriction on the appellants’ speech was not “de minimus.”
The respondents assert that, even if Garcetti does not apply, they
nevertheless had an “adequate justification” for demanding that the appellants sign
a stipulation prohibiting critical speech because it was in the best interest of the
Village. Indeed, in what can only be construed as a scare tactic to justify its overt
bullying, the Village claims that, had they not taken such action, it would have
been forced to “cut back on essential services and/or … saddle its citizens with
additional tax burdens.” Resp. Br. at 66. This is nonsense.
A municipality cannot violate First Amendment rights merely because it is
less expensive to violate those rights than it is to respect them. See Esperanza
Peace and Justice Center v. City of San Antonio, 2001 U.S. Dist. Lexis 6259 * 63
(W.D. Tex. May 15, 2001) (noting that city council “may not choose to withhold
26
funds from a group merely because the council — or its constituents — disagree
with the message the group espouses”) (emphasis in original). Even if it could,
however, that is not what the respondents did here. The fact of the matter is that the
appellants were always willing to end the litigation and would have readily signed
an unconditional stipulation of discontinuance with prejudice. R.407, ¶22. It was
the respondents that rejected this, instead demanding silence from the appellants on
any aspect of the settlement with which they disagreed. This is not a de minimus
imposition on the appellants’ constitutional rights. Rather, it is a fundamental
violation of free speech with the potential to cause irreparable harm. Salinger v.
Colting, 607 F.3d 68, 81 (2d Cir. 2010) (noting that the infringement of First
Amendment Freedoms “for even minimal periods of time, unquestionably
constitutes irreparable harm”) (quoting Elrod v. Burns, 427 U.S. 347, 373 [1976]).
Moreover, as noted above, the respondents’ claim that they were merely the
messenger for the Water Works plaintiffs in imposing the “gag order” is
completely inconsistent with the record. First, there is no evidence of this other
than a hearsay statement by Mr. Colton. R.95 ¶15. Indeed, Mr. Edwards’ statement
that the Water Work Plaintiffs “insisted” on the condition, was in reply to Mr.
Colton’s statement. See R.391. In any event, this argument is, at best, a red herring,
because the Village and the Water Works plaintiffs had already executed a
settlement agreement prior to the presentment of the conditional stipulation to the
27
Appellants with its offending clause. R.43-57. The imposition of a “gag order” on
the appellants, therefore, was not a pre-condition to a settlement by the Village. In
sum, the key issue before this Court is and remains whether the respondents, by
virtue of the power of the purse, were entitled to demand that the appellants forfeit
their constitutional free speech rights. Clearly, they were not.
C. The Village’s demand was effectively a prior restraint.
Claiming that the appellants always had the “ultimate power to choose”
whether or not to participate in the settlement, the respondents contend that they
had no choice but to revoke the appellants’ defense and indemnification when they
allegedly exercised their “option” not to sign the conditional stipulation. Resp. Br.
67-68. Simply stated, however, the respondents’ “offer” to the appellants was
nothing more than a Hobson’s choice; that is, the appellants could either choose to
retain their free speech rights and undertake the enormous obligation to defend
themselves in these civil RICO actions on their own or, instead, they could forfeit
their rights in order to retain their statutorily-mandated benefits. On its face, the
stipulation prohibited critical speech. If the appellants did not agree to be silent,
they faced revocation of the defense and indemnification benefits that the Village
had already recognized it was otherwise obligated to pay. That was the threat and
that constitutes the prior restraint. See Thornhill v. Alabama, 310 U.S. 88, 97
(1940) (“it is not merely the sporadic abuse of power by the censor but the
28
pervasive threat inherent in its very existence that constitutes the danger to
freedom of discussion.”); Crue v. Aken, 370 F.3d 668, 678 (7th Cir. 2004) (e-mail
from University Chancellor to faculty and students seeking to have the
University’s athletic director pre-approve certain communications deemed a prior
restraint.)
IV
The Open Meetings Law Violations
were not “Mere Technical” Violations
In their effort to evade any close scrutiny of the executive session at which
the respondents revoked and terminated the appellant’s defense and
indemnification, the respondents argue that they still had an “interest in avoiding
the disclosure of litigation strategy in connection with any pending litigation for
which it is financially responsible.” Resps. Br. at 50. They further posit that the
“purpose of meeting in that executive session was to consider whether the Village
was actually under a continuing obligation to defend Appellants.” Id. Neither
justification satisfies the Open Meetings Law. Not surprisingly, the respondents
fail to cite even one case supporting this novel theory. The obvious reason for this
is that it plainly undercuts the purpose and goal of the Open Meetings Law—
transparency. As just recently stated by one court: “The Open Meetings Law was
created to mandate transparency in the operation of government and its entities. In
29
this way, the public is informed and decision-making cannot occur in secret.” The
New York State Nurses Association v. State University of New York, 39 Misc. 3d
588, 592 (Sup. Ct. Kings Cty. 2013). Secrecy, however, is what the respondents
wanted, and achieved, here, illegally.
It is undisputed that when the respondents revoked the appellants’ defense
and indemnification there was no litigation pending in which the Village or the
Village Board was a named party. Its after-the-fact rationale for conducting the
executive session — “the Appellants’ conduct in the defense of the [WaterWorks
actions]”— does not even remotely fit within the contours of section 105(d). The
Village and the appellants already had separate counsel because of an
acknowledged conflict. R.404, ¶ 3. In addition, when the executive session was
convened, the Village was no longer a party to any litigation.
The established purpose of section 105(d) is to permit a public body which is
a party to litigation to discuss its litigation strategy without fear that the strategy
will be disclosed to an adversary. Weatherwax v. Town of Stony Point, 97 A.D. 2d
840 (2d Dep’t 1983). Here, however, the Village had no adversary and there was
no legal strategy to discuss, only the respondents’ threats to the appellants. There
was, therefore, no legal basis for an executive session. If the respondents’ view
were to be accepted, the exceptions for executive sessions would swallow the rule
on openness. Id., 97 A.D. 2d at 841 (in rejecting a similar argument, the court
30
observed “[t]o accept this argument would be to accept the view that any public
body could bar the public from its meetings simply be expressing the fear that
litigation may result from actions taken therein.”)4
The respondents’ further assertion that appellant White is to blame if the
Board’s actions were less than transparent, because he moved to go into executive
session, Resps. Br. at 54, again misses the point. It was the Village Board, not
appellant White, that egregiously and intentionally violated the Open Meetings
Law when it terminated the appellants’ defense and indemnification in an
executive session, notwithstanding the prohibition, established in Public Officers’
Law § 105(d), against discussing anything in executive session other than specified
litigation. Gordon v. Village of Monticello, 207 A.D.2d 55, 58 (3d Dep’t 1994),
rev’d on other grounds, 87 N.Y.2d 124 (1995) (it is well-settled that the topics
which can be discussed during the executive session “must remain within the
exceptions enumerated in the statute… and these exceptions . . .‘must be narrowly
scrutinized, lest the article’s clear mandate be thwarted by thinly veiled references
to the areas delineated hereunder’.”)
4 The respondents’ claim that the Glacken Appellants “never before argued that the
withdrawal of Appellants' defense and indemnification should not have been discussed during
executive session because it does not qualify as a discussion about ‘litigation’” is wrong. Resps.
Br. at 48. The Glacken appellants raised the issue in a memo of law submitted to the Supreme
Court. See Appendix, Tab 9, pgs. 8-9. Accordingly, it has been properly preserved.
31
Appellant White stated that the resolution revoking the appellants’ defense
and indemnification was presented for the first time to the Board during the
executive session. R.410, ¶5. The topic was never placed on any agenda, nor was it
announced prior to the move into executive session. It was “moved, seconded and
carried by a vote of three to two” in secrecy. The Board never “return[ed] to
legislative session.” R. 410 §§ 5-6.5 The respondents’ excuse that it was motivated
by financial concerns for the Village is of no moment. As noted by one court:
It is necessary to set forth the reason for the executive
session as a guidepost to Board Members that other
matters are not to be discussed in the executive session
no matter how tempting it is to discuss other issues once
they are in executive session. The motion reminds
everyone that the executive session is only on that issue
mentioned in the motion.
New York State Nurses Association, 39 Misc. 3d at 594 (quoting Matter of
Stephenson v. Board of Education of the Hamburg Central School District, 31
Misc. 3d 1227 [A] (Sup. Ct. Erie Cty. 2011).
In sum, nothing that occurred during the course of the executive session held
on January 4, 2010 comported with the requirements of the Open Meetings Law.
In fact, the actions taken were in “blatant disregard” of the Law.6 Gordon v.
Village of Monticello, 87 N.Y.2d 124, 128 (1995). As a result of the wrongful
5 The appellants do not dispute that only the Glacken appellants asserted violations of the
Open Meetings Law.
6 This was simply following a pattern of blatant violations as set forth in appellants’
initial brief. See Appellants Br. at 55-58.
32
actions taken by the Village Board during the improperly convened executive
session, all of the appellants have been prejudiced. Indeed, as the motions papers
before this Court set forth, the appellants were compelled to pay significant sums
out of pocket in order to be defended in the Water Works Actions. See Appendix,
Tab 10. In such circumstances, and as this Court has held, the determination
should be set aside and, “an award of fees is justified.” Gordon, 87 N.Y.2d at 128.
Conclusion
For all of the foregoing reasons, the appellants submit that the order of the
Appellate Division should be reversed and the petitions should be granted.
Freeport violated the appellants First Amendment rights by revoking their defense
and indemnification. It did so, moreover, in a manner for which there was no basis
in the law upon which Freeport relied, the Public Officers Law, and which violated
the Open Meetings Law. The resolution Freeport adopted should, therefore,
declared null and void and Freeport should be required to reimburse the appellants
for any expenditures they have made in the defense of the Water Works actions.
The appellants should also recover the attorneys’ fees and litigation expenses they
have incurred in this proceeding.
33
Respectfully submitted,
WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP
Attorneys for Appellants
By: ____________/S/_______________
Robert A. Spolzino
Peter A. Meisels
Kathleen A. Daly
3 Gannett Drive
White Plains, New York 10604
(914) 323-7000
Dated: White Plains, New York
June 14, 2013
IDENTICAL COMPLIANCE OF BRIEFS CERTIFICATION
It is hereby certified that the Reply Brief
which was filed electronically (by CD-Rom), June 17, 2012
is identical to the Reply Brief being filed physically with
the New York State Court of Appeals.
Dated: June 17, 2013
WILSON ELSER MOSKOWITZ
EDELMAN & DICKER LLP
By:________/S/____________
Robert A. Spolzino, Esq.
Peter A. Meisels, Esq.
Kathleen A. Daly, Esq.
Attorneys for Petitioners-Appellants
3 Gannett Drive
White Plains, New York 10604
Tel: (914) 323-7000
Fax: (914) 323-7001
robert.spolzino@wilsonelser.com
Appendix
APPENDIX
TAB 1 — Letter from Court of Appeals, dated April 6, 2012 and the submissions of
the Appellants and Respondents.
TAB 2 — Order to Show Cause, dated May 5, 2010 and Affirmation of Stanley A.
Camhi in support, dated April 28, 2010.
TAB 3 — Letter from Harrison J. Edwards, dated May 21, 2010 on behalf of all
Petitioners consenting to Respondents’ consolidation motion.
TAB 4 — Excerpts from brief submitted on behalf of the Lancaster Appellants in
support of their appeal and filed in the Appellate Division, Second
Department.
TAB 5 — Excerpts from brief submitted on behalf of the Glacken Appellants in
support of their appeal and filed in the Appellate Division, Second
Department.
TAB 6 — Excerpts from brief submitted on behalf of the Village Respondents and in
opposition to the appeal of the Petitioners filed in the Appellate Division,
Second Department.
TAB 7 — Excerpts from reply brief submitted on behalf of the Lancaster Appellants
in further support of their appeal and filed in the Appellate Division,
Second Department.
TAB 8 — Excerpts from reply brief submitted on behalf of the Glacken Appellants
in further support of their appeal and filed in the Appellate Division,
Second Department.
TAB 9 — Excerpts from the memorandum of law submitted by the Glacken
Petitioners in support of the hybrid Article 78 proceeding.
TAB 10 — Affirmation and Affidavits of Appellants in opposition to the
Respondents’ motion to dismiss the appeal.
Tab 1
Tab 2
Tab 3
Tab 4
Tab 5
Tab 6
Tab 7
Tab 8
Tab 9
Tab 10
