Betty L. Kimmel, Respondent,v.State of New York et al., Appellants.--------------------------------Emmelyn Logan-Baldwin, Interested Party-Respondent.BriefN.Y.June 1, 2016COURT OF APPEALS STATE OF NEW YORK BETTY KIMMEL, Plaintiff-Respondent, EMMEL YN LOGAN-BALDWIN, Intervenor-Respondent, against STATE OF NEW YORK, and NEW YORK STATE DIVISION OF STATE POLICE, Defendants-Appellants. PROPOSED BRIEF OF MOV ANTS EMPIRE JUSTICE CENTER AND LEGAL SERVICES OF CENTRAL NEW YORK IN SUPPORT OF THEIR MOTION FOR AMICUS CURIAE RELIEF April25, 2016 Empire Justice Center Saima A. Akhtar Susan C. Antos 119 Washington A venue Albany, NY 12210 (518) 462-6831 X 2851 (518) 935-2852 sakhtar@empirejustic.org Legal Services of Central New York Samuel Young 221 S. Warrant Street, Ste. 300 Syracuse, NY 13202 (315) 703-6591 samyoung@lscny.org STATE OF NEW YORK COURT OF APPEALS BETTY KIMMEL, Plaintiff- Respondent, EMMEL YN LOGAN-BALDWIN, Intervenor-Respondent, against STATE OF NEW YORK, and NEW YORK STATE DIVISION OF STATE POLICE, Defendants-Appellants. NOTICE APR 2 6 2016 NEW YORK STATE COURT OF APPEALS OF MOTION TO PROCEED AS AMICUS CURIAE PLEASE TAKE NOTICE that on the zst day of May, 2016, pursuant to 22 NYCRR § 500.11 G) and upon the annexed Memorandum of Law dated the 25th day of April20 16, the Empire Justice Center and Legal Services of Central New York, proposed amici, appearing pro se, will make a motion before this Court at the Court of Appeals Hall in Albany, New York for an order granting the Empire Justice Center and Legal Services of Central New York leave to appear amicus curiae in support of Plaintiff-Respondent and Intervenor Respondent in the above- captioned case, and leave to file the attached proposed amicus curiae papers. Dated: April25, 2016 • To: HON. JOHN P. ASIELLO Clerk, Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, New York 12207 Mitchell J. Banas, Jr., Esq. Bradley A. Hoppe, Esq. Bond, Schoeneck & King Attorneys for Defendants-Appellants Avant Building, Suite 900 200 Delaware Avenue Buffalo, New York 14202-2107 Tel.: (716) 856-0600 Fax: (716) 856-0432 Empire Justice Center Appearing ProSe 119 Washington Avenue Albany, NY 12210 (518) 935-2851 (518) 935-2852 (fax) Sam Young Legal Services of Central New York Appearing Pro Se 221 South Warren Street, Suite 300 Syracuse, New York 13202 Phone: (315) 703-6500 syoung@lscny.org - - ( • Harriet L. Zunno, Esq. Attorney for Plaintiff- Respondent 35 Heinz Street P.O.Box624 Hiltdn, New York 14468 Tel.: (585) 392-6882 Fax: (585) 392-6364 A. Vincent Buzard, Esq. Harris Beach PLLC Attorneys for Intervenor-Respondent 99 Garnsey Road Pittsford, New York 14534 Tel.: (585) 419-8800 Fax: (585) 419-8801 ·' STATE OF NEW YORK COURT OF APPEALS BETTY KIMMEL, Plaintiff-Respondent, EMMEL YN LOGAN-BALDWIN, Intervenor-Respondent, against STATE OF NEW YORK, and NEW YORK STATE DIVISION OF STATE POLICE, Defendants-Appellants. AFFIRMATION IN SUPPORT OF MOTION TO PROCEED AS AMICUS CURIAE SAIMA AKHTAR, an attorney admitted to practice in New York State, affirms under penalty of perjury that the following is true and correct: 1. I am a senior staff attorney whose practice concentrates in public benefits policy and litigation at the Empire Justice Center located in Albany, New York. 2. I submit this Affirmation pursuant to 22 NYCRR 500.23 (a) (3) in support of the request of the Empire Justice Center to intervene as amicus curiae in the present case returnable on June 1, 2016. 3. The Empire Justice Center is a not-for-profit law firm with offices in Rochester, Albany, White Plains, Yonkers, and Central Islip, New York. The 1 Empire Justice Center provides support services, such as research, case assistance and the coordination of statewide training and substantive law task forces to civil legal service attorneys across New York State. In addition, we provide legal assistance to low income individuals in a wide variety of civil matters including issues related to public benefits, Medicaid, consumer, immigration, social security and employment. We provide these services to assist low-income New Yorkers all across the state, from Long Island to Buffalo, and up to the North Country, in every county except the five boroughs ofNew York City. 4. Through our recurring role as class counsel in impact litigation cases; as a resource and a support center for local legal services programs; and as co- counsel with other non-profit organizations in state-wide litigation brought on behalf oflow-income New Yorkers seeking to access or maintain subsistence benefits, Empire Justice Center is qualified to provide a perspective on the significance of the fee-shifting provisions of the State's Equal Access to Justice Act ("EAJA"), which seeks to address the most fundamental problem of our judicial system by ensuring that the pursuit of justice is not foreclosed by a lack of financial resources. 5. Many of our cases focus on issues that have far reaching social and economic effects on low income individuals. (See e.g. Matter of Carver v State, 26 NY 3d 272 [20 15] [holding that work performed as a requirement of New York 2 . ' City's Work Experience Program in exchange for cash public assistance and food stamp benefits was subject to the federal minimum wage protections of the federal Fair Labor Standard Act]; Dickerson v Thompson, 88 AD3d 121 [3d Dept 2011] [upholding the jurisdiction of the Supreme Court to dissolve the Vermont civil union of a same-sex couple]; Doe ex ref. Doe v Doar, 26 AD3d 787 [4th Dept 2006], lv dismissed 6 NY3d 891 [2006] [challenging a reduction of public assistance benefits in violation of the New York State Social Services Law to households with children where one or more household members receive Supplemental Security Income (SSI)]; Velazquez v State of New York, 7 AD3d 449 [1st Dept 2004] [receipt of public assistance or SSI constitutes relevant, significant but rebuttable evidence ofindigency and inability to pay child support]; Aliessa ex rei. Fayad v Novello, 96 NY2d 418 [200 1] [successful constitutional challenge to the termination of Medicaid benefits for lawfully present immigrants in certain types of status]; Karamalla v Devine, Sup Ct, Erie County, Feb. 26, 2016, Nugent- Panepinto, J., index No. 000107-2015 [successful constitutional challenge to the denial of state-funded cash public assistance benefits for lawfully present immigrants in Temporary Protected Status]; Brown v Wing, 170 Mise 2d 554 [Sup Ct, Monroe County 1996] [challenging an unconstitutional durational residency requirement for persons in state-funded public assistance programs].) 3 6. In light of our experience in these cases and others like it, we have seen firsthand the important role that fee-shifting statutes such as EAJA can play in securing just results. Even more so than the federal EAJA, our State's Equal Access to Justice Act provisions point to a decided concern about the access of low-income individuals, such as our clients, to the help of competent counsel to bring their claims to court. The State EAJA provisions limit fee recovery to individuals with a net worth less than $50,000 (CPLR 8602 [ d] [i]) while the comparable provision in the federal EAJA allows individuals with a net worth of up to $2 million to recover fees (28 USC§ 2412 [d] [2] [B] ). 7. As a law firm specializing in issues affecting low income individuals, Empire Justice Center can provide the Court with legal and factual perspectives that might otherwise escape the Court's attention. We are particularly familiar with issues related to one of the State's most significant efforts to ensure that individuals whose resources are so limited that they depend on state agencies for the basic necessities of life, as many of our clients do, have access to the judicial system through competent counsel when those same agencies act against their interests or illegally. 8. Through our work as a not-for-profit law firm that represents indigent individuals who are often in crisis because of their poverty, Empire Justice Center has a unique perspective on the importance of the Fourth Department Decision 4 STATE OF NEW YORK COURT OF APPEALS BETTY KIMMEL, Plaintiff- Respondent, EMMEL YN LOGAN-BALDWIN, Intervenor-Respondent, against STATE OF NEW YORK, and NEW YORK STATE DIVISION OF STATE POLICE, Defendants-Appellants. AFFIRMATION IN SUPPORT OF MOTION TO PROCEED AS AMICUS CURIAE SAMUEL YOUNG, an attorney admitted to practice in New York State, affirms under penalty of perjury that the following is true and correct: 1. I am the Director of Advocacy at Legal Services of Central New York located in Syracuse, New York. My practice encompasses overseeing litigation and advocacy efforts across a range of poverty law areas. 2. I submit this Affirmation pursuant to 22 NYCRR § 500.23 (a) (3) in support of the request ofLegal Services of Central New York to intervene as amicus curiae in the present case returnable on June 1, 2016. 3. Legal Services of Central New York ("LSCNY'') is a non-profit law firm founded in 1966 to provide free, civil legal assistance to low-income families and individuals in thirteen counties of Central New York-Broome, Cayuga, 4821-3393-6689, v. 1 I '' Chenango, Cortland, Delaware, Herkimer, Jefferson, Lewis, Madison, Oneida, Onondaga, Otsego, and Oswego. LSCNY employs 40 lawyers plus paralegals and support staff in 6 offices in order to meet our client's legal needs. 4. LSCNY represents people in court, at administrative hearings, before government agencies and the legislature. We apply our resources and expertise to ensure our clients' needs are addressed fairly and their voices heard. We address important local issues and concerns, guiding our clients through complicated laws, helping them know and enforce their rights. In short, we help stabilize the lives of people who have been marginalized, helping them achieve dignity. 5. Through our work representing low-income New Yorkers seeking to ,' access or maintain subsistence benefits through both individual representation and as class counsel in impact litigation cases, LSCNY is qualified to provide a perspective on the significance of the fee-shifting provisions of the state's Equal Access to Justice Act ("EAJA") in helping to ensure that pursuit of justice is not foreclosed by a lack of financial resources. 6. Many of our cases focus on issues that have far reaching social and economic effects on low income individuals. For example, we were class co- counsel in the case of Howardv. So/data, 10-CV-1557 (NDNY), which challenged illegal application delays for filing public benefits applications in Oneida County. Currently, we are class counsel in Williams v. Conway, 15-CV-427 (NDNY), 4821-3393-6689, v. 1 which involves the failure to provide access to deaf and hard of hearing inmates at a local county jail. We are also co-counsel in Tuyizere v. Utica City School District, 20 15-cv-488, which complains of a city school district's failure to provide access to education for immigrant students over the age of sixteen. 7. In our practice, LSCNY attorney observe the firsthand the critical role that fee-shifting statutes such as EAJA can play in securing justice for our clients. As a law firm specializing in issues affecting low income individuals, LSCNY can provide the Court with legal and factual perspectives which might otherwise escape the Court's attention. 8. The Fourth Department Decision upholding the plain language of the statute, that the EAJA unambiguously applies to "any civil action brought against the state" including, but not limited to, Ms. Kimmel's action, is vital to the work of LSCNY as a not-for-profit law firm that represents indigent individuals who are often in crisis because of their poverty. As set forth more fully in the accompanying brief, the Appellate Division's decision below should be affirmed because it advances an essential purpose of the BAJA in a matter consistent with the clear legislative intent: to increase the access of low-income New Yorkers to the courts and competent, qualified counsel when confronting organizations that act with the power and resources of the State. 4821-3393-6689, V. 1 9. Because of the high level oflegal needs in our region and throughout New York State, we are unable to provide representation to all of the eligible people who apply for and have needs of our services. In fact, civil legal services offices like our can meet only about twenty-five percent of the legal needs in the community. 10. Accordingly, because Legal Services of Central New York, Empire Justice Center, The Legal Aid Society, and Housing Works can identify law and arguments that might otherwise escape the Court's attention and because we may be of assistance to the Court in this case which raises issues of public importance, we satisfy the criteria specified in 22 NYCRR § 500.23 (a) (4) (ii) and (iii) regarding when to a motion for amicus relief may be granted. 4821-3393-6689, v. 1 11. FOR ALL OF THE FOREGOING REASONS, we respectfully request that the motion of Empire Justice Center, the Legal Aid Society, Legal Services of Central New York, and Housing Works to intervene as amicus curiae in the case at bar be granted, and that the accompanying brief be accepted for filing. Dated: April25, 2016 Syracuse, New York 4821-3393-6689, v. 1 ~!mt~G:J; Director of Advocacy Legal Services of Central New York 221 S. Warren Street, Suite 300 Syracuse, NY 13202 (315)-703-6592 samyoung@lscny.org COURT OF APPEALS STATE OF NEW YORK BETTY KIMMEL, Plaintiff-Respondent, EMMEL YN LOGAN-BALDWIN, Intervenor-Respondent, against STATE OF NEW YORK, and NEW YORK STATE DIVISION OF STATE POLICE, Defendants-Appellants. State of New York County of Albany: ss AFFIRMATION OF SERVICE Saima Akhtar, being duly sworn deposes and says: That I run an individual over the age of 18 years old and reside in Schenectady County, New York. I run not a party to this action. On Monday, April25, 2016, I served one true and correct copy each of the Notice of Motion to Proceed As Amicus Curiae, Affirmation of Saima Akhtar, Affirmation of Srunuel Young, and the Brief in Support of the Motion to Proceed as Amicus Curiae on each party to this action by documents were depositing the papeJiS into the Federal Express pick up box located on the first floor of the office building located at 111 Washington Ave, Albany, New York 12210 at 5:51pm. The papers were directed to the parties through their counsel of record at the following addresses: Mitchell J. Banas, Jr., Esq. Bradley A. Hoppe, Esq. Bond, Schoeneck & King Attorneys for Defendants-Appellants Avant Building, Suite 900 200 Delaware Avenue Buffalo, New York 14202-2107 4826·5305-6305, v. 1 ' , '• Harriet L. Zunno, Esq. Attorney for Plaintiff-Respondent Kimmel 35 Heinz Street P.O. Box624 Hilton, New York 14468 A. Vincent Buzard, Esq. Harris Beach PLLC Attorneys for Intervenor-Respondent Logan-Baldwin 99 Garnsey Road Pittsford, New York 14534 Dated: April26, 2016 Sworn to before me this 26th day of April, 2016 4826·5305-6305' v. 1 SIISAN C. ANTOS NOTARY PUBLIC, S!ote of New York No. 02AN4859427 Ou_alified in qoJumbia County CommiSSion Exp1res April21, 20_!& ~a A. Akhtar • • COURT OF APPEALS STATE OF NEW YORK BETTY KIMMEL, Plaintiff-Respondent, EMl\ffiL YN LOGAN-BALDWIN, Intervenor-Respondent, against STATE OF NEW YORK, and NEW YORK STATE DIVISION OF STATE POLICE, Defendants-Appellants . APR 2 6 2016 NEW YORK STATE COURT OF APPE~.LS . PROPOSED BRIEF OF MOV ANTS EMPIRE JUSTICE CENTER AND LEGAL SERVICES OF CENTRAL NEW YORK IN SUPPORT OF THEIR MOTION FOR AMICUS CURIAE RELIEF April25,2016 Empire Justice Center Saima A. Akhtar Susan C. Antos 119 Washington Avenue Albany, NY 12210 (518) 462-6831 X 2851 (518) 935-2852 sakhtar@empirejustic.org Legal Services of Central New York Samuel Young 221 S. Warrant Street, Ste. 300 Syracuse, NY 13202 (315) 703-6591 samyoung@lscny.org • TABLE OF CONTENTS I. Preliminary Statement ................................................................................ 1 II. Question Presented .................................................................................... 4 Ill. Statement of the Facts ............................................................................... 4 IV. Argument .................................................................................................. 6 A. The Appellate Division Correctly Found That the Plain Language of the EAJA Entitled Plaintiffs to Recovery Attorney's Fees ................. 6 B. EAJA Does Not Demand The Limitations That Defendant Proposes ................................................................................................ 7 C. The Appellate Decision Should Be Upheld Because Broad Reading of the EAJA Safeguards Access to Justice .............................................. 8 1. The Intent of the EAJA is to Provide Access to Justice ................. 8 2. New York's Current Access to Justice Crisis .............................. 10 D. Limiting the EAJA to Administrative Appeals Will Compromise the Ability of Legal Services Providers to Vindicate the Constitutional Rights of Low-Income People ........................................................... 13 V. Conclusion .............................................................................................. 19 i 4821-4681-8608, v. 5 • TABLE OF AUTHORITIES CASES Aumick v Bane, 161 Mise 2d 271 [Sup Ct, Monroe County 1994] .............................................. 16 Brown v Wing, 170 Mise 2d 554 [Sup Ct, Monroe County 1996] .............................................. 15 Coleman v Daines, 79 AD3d 554 [1st Dept 2010] ....................................................................... 14, 15 Carr v Westchester County Dept. of Social Services, 33 NY2d 111 [1973] ........................................................................................... 16 Edwards v McMahon, 834 F2d 796 [9th Cir 1987] .................................................................................. 7 Graves v Doar, 87 AD3d 740 [2d Dept 2011] ................................................................. 14, 16, 17 Graves v Doar, 87 AD3d 744 [2d Dept 2011] .............................................................................. 17 Gunn vBlum, 48 NY2d 58 [1979] ............................................................................................. 16 Jiggetts v Grinker, 75 NY2d 411 [1990] ............................................................................................. 7 Johnson v Blum, 83 AD2d 731 [3d Dept 1981], revd in part 58 NY2d 454 [1983] ...................... 15 Karamalla v Devine, Sup Ct, Erie County, February 26, 2016, Nugent-Panepinto, J., index No. 000107-2015 ................................................................................... 14 Kimmel v State of New York 76 AD3d 188 [4th Dept 2010] ................................................................. 3, 5, 6, 13 ii 4821-4681-8608, v. 5 • Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577 [1998] ............................................................................................. 6 Malta Town Ctr. L Ltd. v Town of Malta Bd. of Assessment Review, 3 NY3d 563 [2004] ............................................................................................... 6 Mitchell v Bane, 218 AD2d 537 [1st Dept 1995] ........................................................................... 17 Raynor v Landmark Chrysler, 18 NY3d 48 [20 11] ............................................................................................... 6 Scott v Coleman, 20 AD3d 631 [3rd Dept 2005] .............................................................................. 6 Shvartszayd v Dowling, 239 AD2d 104 [1st Dept 1997] ........................................................................... 18 Simon v Usher, 17 NY3d 625 [2011] ............................................................................................. 6 Tambe v Bowen, 839 F2d 108 [2d Cir 1988] .................................................................................... 7 Thomasel v Perales, 78NY2d561 [1991] ........................................................................................... 17 Tormos v Hammons, 259 AD2d 434 [1st Dept 1999] ...................................................................... 17, 18 Watergate II Apartments v Buffalo Sewer Authority, 46 NY2d 52 [1978] ............................................................................................. 15 STATUTES 42 usc § 1988 ........................................................................................................ 15 42 USC § 2000e-5 ................................................................................................... 13 NY Executive Law§ 297 ........................................................................................ 13 1989 McKinney's Session Laws of NY, ch 770 at 2436 ........................................... 9 iii 4821-4681·8608,v.5 RULES CPLR 8600 ................................................................................................................ 9 CPLR 8601 ................................................................................................................ 4 CPLR 8601 (a) ............................................................................................... 5, 6, 7, 8 CPLR 8602 (a) ........................................................................................................... 8 CPLR 8602 (d) .......................................................................................................... 8 CPLR 8602 (f) ........................................................................................................... 7 REGULATIONS 22 NYCRR 51.1. ..................................................................................................... 11 OTHER AUTHORITIES Assn of the Bar of the City of New York, Repori on Legislation S 3321-A & A 3313-A, Bill Jacket L 1989, ch 770 ................................................................. 9, 10 Legal Servs Corp, 2013 Legal Services Corporation By The Numbers: The Data Underlying Legal Aid Programs [2013] .............................................................. 12 Letter from Advocates for Children, Bill Jacket L 1989, ch 770 [August 7, 1989] ......................................................... 9 New York State Unified Court System, The Future of Pro Bono in New York Volume II: Report and Recommendations from the New York State Unified Court System's Pro Bono Convocations [2004] ................................................. 11 Press Release, New York State Unified Court System, Creation of Statewide System Called For to Boost Numbers of New York Attorneys Providing Free Legal Services for the Poor, January 15, 2004 ................................................... 11 The Task Force to Expand Civil Legal Services in New York, Report to the Chief Judge of the State of New York [Nov 2013] ............................................ 10, 11, 12 US Census Bureau, Poverty: 2012 and 2013 American Community Survey Briefs [Sept. 20 14] ......................................................................................................... 10 iv 4821-4681-8608, v. 5 • I. Preliminary Statement Proposed amici curiae submit this brief in support of the response by Plaintiff-Appellee, Betty Kimmel and Emmelyn Logan-Baldwin, to this appeal by the State of New York and the New York State Police (hereinafter State), from a Decision and Order of the Appellate Division, Fourth Department. The appellate Decision, entered June 18, 2010, reversed an order of the Supreme Court, Monroe County (Hon, Evelyn Frazee, J., entered March 26, 2007) and awarded attorney's fees and costs to Plaintiff-Respondent, Betty Kimmel (hereinafter Ms. Kimmel) and her former attorney, Intervener-Respondent Emmelyn Logan-Baldwin (hereinafter Attorney Logan-Baldwin), pursuant to the New York Equal Access to Justice Act (hereinafter BAJA), as codified in CPLR article 86. The Appellate Division found, based upon the plain language of the statute that BAJA unambiguously applies to the instant action brought under the Human Rights Law. Proposed amici are all organizations that provide legal representation to New York's poor and disadvantaged. Proposed amicus, the Empire Justice Center, is a not-for-profit law firm with offices in Rochester, Albany, White Plains, Yonkers and Central Islip, New York. We operate as a statewide support center for legal services programs and community organizations, providing technical assistance and training in the substantive law areas that have the most impact on low-income communities, including public benefits, heath care access, foreclosure I 4821-4681·8608, v. 5 prevention, education, immigration, civil and disability rights, non-mortgage consumer and employment law. Expanding access to justice is core to our mission. In addition to training and technical support, the Empire Justice Center also provides direct representation to low-income individuals. Statutory attorney's fees, including fees from EAJA, provide on average about 10% of our revenue and allow us to represent hundreds of additional clients. Proposed amicus, Legal Services of Central New York, is a non-profit law firm providing free, civil legal assistance to low-income families and individuals in thirteen counties of Central New York-Broome, Cayuga, Chenango, Cortland, Delaware, Herkimer, Jefferson, Lewis, Madison, Oneida, Onondaga, Otsego, and Oswego. With more than 30 attorneys working out of 6 offices, LSCNY works, through representation in court and administrative proceedings, as well as by advocating before government agencies and the legislature, to ensure their clients have those necessities of life that many take for granted. By advocating at a local level and helping to stabilize the lives of people who have been marginalized, LSCNY helps its clients achieve dignity. Our interests as amici in the instant appeal are to ensure and preserve access to the courts for low and moderate income New Yorkers. Amici are gravely concerned that if this Court accepted the State's proposed limitation of the EAJA, it would restrict the access of low income individuals to the courts in any case 2 4821-4681-860B,v.5 • where compensatory damages are part of a valid claim against the state. This is because there would be significantly fewer private attorneys and publicly funded counsel willing to represent such litigants, even where the position of the state has no substantial justification. In addition, where the state faces potential liability for fees under EAJA, the state will properly consider cost in the determining the scope of its defense. Removing liability for fees gives the state an unfair advantage over low and moderate income parties who would have to bear their own costs, or more likely, forego litigation of valid claims. The effects of accepting the arguments of the State in this appeal would be profound for lower-wage workers, even more severely limiting their ability to secure counsel in employment discrimination cases based on probability of compensation, since their damages are likely to be much lower than those awarded to more highly paid workers. Without representation, most of these litigants have little hope of obtaining adequate relief. The holding in the instant matter, correctly decided by the Appellate Division, fortifies the ability of organizations like amici to represent our clients. We urge this Court to affirm the decision of the Fourth Department in Kimmel v State of New York(76 AD3d 188 [4th Dept 2010]), which held that under the plain language of the statute, the EAJA unambiguously applies to "any civil action brought against the state" including, but not limited to, Ms. Kimmel's action. 3 4821-4681-8608, v. 5 • Amici ask this Court to affirm the Fourth Department's refusal to limit the scope of the EAJA, thereby access to justice for those oflow and moderate income. If this Court were to accept the State's proposed reading of the EAJA and the decision of the Appellate Division were reversed, the applicability of the EAJA could be vastly constrained and would, subsequently, limit litigation far beyond the scope of the case at issue. For these reasons, the undersigned legal services providers respectfully request that this Court allow us to proceed as amici curiae and affirm the decision of the Fourth Department Appellate Division in full. II. Question Presented Was the Appellate Division correct in its determination to award attorney's fees to a prevailing plaintiff pursuant to CPLR 860 1 in an action against the State brought under the Human Rights Law? Yes. By properly relying on the plain language of the EAJA referencing "any civil action," the Appellate Division rightly held that Ms. Kimmel and Attorney Logan-Baldwin were entitled to payment of attorney's fees as prevailing plaintiffs under the Human Rights Law. ill. Statement of the Facts This case arises from a lengthy history of extensive sex-based misconduct directed at Ms. Kimmel while employed by the State of New York. Ms. Kimmel, a 4 4821-4681-8608, v. 5 • former New York State trooper, commenced this action in May of 1995 against the State, alleging that she was subjected to sexual discrimination, sexual harassment, and retaliation. After more than a decade of bitter pre-trial litigation, in which defendant appellants challenged every adverse ruling, Ms. Kimmel's case was finally heard by a jury in 2007. She prevailed in her sex discrimination action and was awarded damages of$798,000 upon a jury verdict in her favor; however, the trial court held that the attorney's fees provisions, codified in the EAJA, were inapplicable to this case because Ms. Kimmel recovered compensatory damages for tortious acts. Ms. Kimmel and Attorney Logan-Baldwin were thus denied recovery of attorney's fees provided for by the EAJA. On June 18, 2010, the Fourth Department reversed the trial court's decision, holding that the EAJA unambiguously applies to "any civil action brought by the state" and therefore, Ms. Kimmel and Attorney Logan-Baldwin are eligible to recover reasonable attorney's fees and expenses under CPLR 8601 (a). The Appellate Division rejected the State's argument that the EAJA only applies to proceedings brought under CPLR article 78 and declaratory judgment actions. Further, the Appellate Division agreed with Ms. Kimmel and Attorney Logan- Baldwin that the action fell into none of the statutory exceptions in the CPLR (Kimmel v State of New York, 76 AD3d 188, 192 [4th Dept 2010]). Because the language of the EAJA reveals no express intent to exclude actions of this type from 5 4821-4681·8608,v.5 • recovery under the statute, the Appellate Division correctly concluded that looking to the legislative history was unnecessary based on the plain and unambiguous language of the statute (Kimmel, 76 AD3d at 196). The Court noted: "the purpose of the EAJA is 'to assist economically disadvantaged litigants in obtaining legal assistance in the prosecution of actions seeking to obtain redress from wrongful actions of the state"' (Kimmel, 76 AD3d 188 at 191, quoting (Matter of Scott v Coleman, 20 AD3d 631, 631 [3rd Dept 2005]). Amici wholeheartedly support the position espoused by the majority of the Appellate Division in this decision. IV. Argument A. The Appellate Division Correctly Found That the Plain Language of the EAJA Entitled Plaintiffs to Recover Attorney's Fees. The Appellate Division correctly found the EAJA applicable to Ms. Kimmel's case based on the language in CPLR 8601 (a) which awards fees and costs in "any civil action" against the State. In interpreting a statute, courts should give "effect to the plain meaning" of the words in the statute (Raynor v Landmark Chrysler, 18 NY3d 48,56 [2011]; Simon v Usher, 17 NY3d 625,628 [2011]; Malta Town Ctr. I, Ltd. v Town of Malta Bd. of Assessment Review, 3 NY3d 563, 568 [2004] ["plain language of the statutes as the best evidence oflegislative intent"]; see also, Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]). The plain language ofCPLR 8601 (a) regarding the entitlement to 6 4821-4681-8608. v. 5 attorney's fees could not be more clear. The plain meaning of the words "shall award to a prevailing party" means that the court must issue an order for attorney's fees and costs to a prevailing party, as defined by CPLR 8602 (f). The statutory use ofthe word "shall" "import[s] duty, not discretion," making clear the mandatory nature of the directive (Jiggetts v Grinker, 75 NY2d 411, 417 [1990]). The language of the subsequent clause ofCPLR 8601 (a) further defmes the class of cases in which this mandatory award ofEAJA attorney's fees and costs must be paid to the prevailing party. These EAJA fees are mandated in "any civil action brought against the state" where the position of the state was not substantially justified and unless special circumstances would make such an award unjust. (CPLR 8601 [a] [emphasis supplied]). The word "any" means "without restriction or limitation. The plain meaning of the statute could not be broader." (Tambe v Bowen, 839 F2d 108, 110 [2d Cir 1988] citing Edwards v McMahon, 834 F2d 796,799 [9th Cir 1987].) The plain and clear meaning of the statutory language delineates the precise conclusion reached by the Appellate Division: that Ms. Kimmel and Attorney Logan-Baldwin were entitled to a payment of attorney's fees under EAJA. B. EAJA Does Not Demand The Limitations That Defendant Proposes. The State's attempt to narrow the types of cases or claims that would entitle a prevailing plaintiffto EAJA fees is misguided and contrary to the spirit of the 7 4821-4681-8608, v. 5 Act and should be rejected. The State offers a long, torturous argument to urge this Court to interpret the term ''judicial review" under CPLR 8602 (a) as limiting the civil actions described in 8601 (a) to those in which the plaintiff is seeking a court's review of a state agency decision. If the State's interpretation is adopted, not only would Ms. Kimmel and Attorney Logan-Baldwin be precluded from recovering their attorney's fees and costs in this case, but prevailing parties in a potentially wider range of civil actions against the State could be denied attorney's fees and costs. Neither the language of the statute itself, nor the legislative history, preclude plaintiffs, as defmed by CPLR 8602 (d}--a defmition which covers virtually every person for whom amici advocate and provide legal representation-from recovery ofEAJA fees in a civil action against the State where there is not a record below. Even though the Appellant's arguments are cognizable, they are not dispositive and should not control. C. The Appellate Decision Should Be Upheld Because Broad Reading of the EAJA Safeguards Access to Justice. I 1. The Intent of the EAJA is to Provide Access to Justice. Although there is no need to resort to interpreting the EAJA based on legislative history where the plain language conveys clear and sufficient instruction, the basic intent of the EAJA aligns with the holding of the 8 4821-46B1·B60B,v. 5 • Appellate Division below. The purpose of the EAJA is to "create a mechanism authorizing the recovery of counsel fees and other reasonable expenses in certain actions against the state of New York" (CPLR 8600). As its title conveys, the EAJA "directly promotes equal access to justice by significantly lowering economic barriers that currently prevent many individuals from contesting irrational and illegal State govenunent action" (Assn of the Bar of the City ofNew York, Report on LegislationS 3321-A & A 3313-A, Bill Jacket L 1989, ch 770). Moreover, the EAJA was designed to "improv[e] access to justice for individuals and businesses who may not have the resources to sustain a long legal battle against an agency that is acting without justification" ( 1989 McKinney's Session Laws of NY, ch 770 at 2436). The importance of providing access to justice to indigent persons in New York with civil legal needs was repeatedly recognized when the EAJA was enacted. The EAJA was supported as a "desperately needed" avenue to improve access to justice for the poor (Letter from Advocates for Children, Bill Jacket L 1989, ch 770 [August 7, 1989]). Passage of the EAJA was viewed as "particularly timely" in light of reports that documented "the critical problem of underrepresentation of the poor" (Letter from New York State Bar Assn, Bill Jacket L 1989, ch 770 [August 6, 1989]). The Letter submitted on behalf of the New York State Bar Association pointed out that, at the time the EAJA was 9 4821-4681-8608, v. 5 • passed, there was a real concern expressed by the New York courts about the lack of access to justice for low-income New Yorkers, (Letter from New York State Bar Assn, Bill Jacket L 1989, ch 770 [August 6, 1989]). A study on the lack of legal assistance for the poor conducted by the New York Bar Association along with a special committee appointed by Chief Judge Wachtler found that ''the problem ha[d] assumed 'crisis proportions which jeopardizes both the welfare of poor persons and the legitimacy of the legal system itself,"' (Letter from New York State Bar Assn, Bill Jacket L 1989, ch 770 [August 6, 1989]). 2. New York's Current Access to Justice Crisis The l~test census data show that over 3 million New Yorkers are living in poverty-16% of the state's population (US Census Bureau, Poverty: 2012 and 2013 American Community Survey Briefs, 3, http:/ /www.census.gov/content/dam/Census/library/publications/20 14/acs/acsbr 13- Ol.pdf [Sept. 2014] [accessed on April 19, 2016]). At best, only 20% of the need for civil legal services is being met, and "more than 2.3 million litigants continue to attempt to navigate the complex civil justice system without counsel each year" in New York (The Task Force to Expand Civil Legal Services in New York, Report to the Chief Judge of the State of New York, 19-20, https://www.nycourts.gov/accesstojusticecommission!PDF/CLS- 10 4821-4681-8608, v. 5 • .. Task:ForceREPORT.pdf [Nov 2013] [accessed on April19, 2016]). Each of New York's poor households experiences an average of 2.37 unmet civil legal needs annually, a total of approximately 2.5 million legal problems for which no lawyer is available (New York State Unified Court System, The Future of Pro Bono in New York Volume /1: Report and Recommendations from the New York State Unified Court System's Pro Bono Convocations, iii, http://nycourts.gov/reports/probono/proBono _ Vol2 _report. pdf [2004] [accessed April 19, 2016]). Fonner Chief Judge Judith S. Kaye remarked, "it is a sad reality that the poor are often left to fend for themselves in New York's challenging legal arena because they cannot afford to hire a lawyer" (Press Release, New York State Unified Court System, Creation of Statewide System Called For to Boost Numbers of New York Attorneys Providing Free Legal Services for the Poor, January 15, 2004, http://nycourts.gov/press/pr2004 15.shtml [accessed on April 19, 2016]). This crisis has become so acute that Chief Judge Jonathan Lippman established a Task Force to Expand Civil Legal Services in New York (hereinafter Task Force) to create meaningful interventions and solutions. (The Task Force was made pennanent June 3, 2015, pursuant to 22 NYCRR 51.1.) Most civil legal services programs that serve low-income clients handle family law, housing, and benefits matters, including domestic violence, child support and custody, evictions and foreclosures, and unemployment insurance 11 4821-4681-8608, v. 5 I ' ··~ appeals (see Legal Servs Corp, 2013 Legal Services Corporation By The Numbers: The Data Underlying Legal Aid Programs, 15-21, 23 http://www.lsc.gov/sites/default/:files!LSCILSC2013BTN.pdf [2013] [hereinafter LSC Data] [accessed on April19, 2016]). Given the crisis of poverty and shortage oflegal services attorneys in our state, the most recent Task Force report understandably recommends that Judiciary Civil Legal Services funding continue ''to prioritize civil legal assistance in the core 'essentials oflife'-housing, family matters, access to healthcare and education, and subsistence income" (Report to the Chief Judge of the State of New York, supra at 3). Legal aid programs in New York, the largest providers of free civil legal services in the state, typically are not funded to take on discrimination cases (see Legal Services Corp, LSC-Funded Programs in New York, . http://www.lsc.gov/local-programs/state-profile?st NY [accessed on April19, 20 16]). These programs' clients are those populations most acutely impacted by poverty and, in turn, discrimination including people of color, people with disabilities, the elderly, and veterans (LSC Data, supra at 10). Civil rights organizations in New York, and some of the amici who are not LSC funded, provide free representation to victims of discrimination, but all are limited in the type and number of cases they are able to accept. Inevitably, amici must tum away more cases than we can handle (Affirmation of Samuel Young in Support of 12 4821-4681-8608, v. 5 ; .. Motion to Proceed As Amici Curiae ~ 9). Because the damages in employment discrimination cases generally are highly influenced by the annual wages of an employee, low wage workers who are unable to secure representation from a legal services office can rarely find private attorneys who will take their cases on a contingent retainer (see e.g. 42 USC § 2000e-5 [g] [i]; NY Executive Law§ 297). Therefore, the access-to-justice gap is particularly wide in this area. This means that victims of discrimination are often unable to obtain legal redress. In the interest ofhonoring the intent underlying the passage of the BAJA, amici ask this Court to uphold the decision of the Appellate Division and award Ms. Kimmel and Attorney Logan-Baldwin the fees and costs they are owed. D. Limiting the EAJA to Administrative Appeals Will Compromise the Ability of Legal Services Providers to Vindicate the Constitutional Rights of Low-Income People. Contrary to the position espoused by the dissenting appellate opinion below, the scope ofEAJA must necessarily encompass more than the mere appeals of administrative action (see Kimmel, 76 AD3d at 199; Brief for Appellants- Defendants at 31-32). The harms and violations that give rise to Article 78 actions, and actions seeking declaratory or injunctive relief, often do not stand alone or arise in isolation; the facts underlying such actions often give rise to other legal violations. Ms. Kimmel's claims for relief were of various modalities-some 13 4821-4681-8608, v. 5 ' claims, like those seeking declaratory and injunctive relief, are claims for which BAJA relief is clearly available (A-50-51; Brief for Appellant-Defendant at 13-14 ["that universe consists of Article 78 proceedings, actions seeking declaratory relief pertaining to state agency rulings, regulations and/or procedures, and actions seeking injunctive relief prohibiting a state agency from enforcing the same"]). Other claims for relief raised in Ms. Kimmel's Complaint have proven more challenging for the State and the trial court to contextualize---such as the request for damages-although those claims remain inexorably linked to the same underlying facts and grave harms that Ms. Kimmel suffered that also gave rise to the claims for declaratory and injunctive relief. For legal services providers like amici, recovery ofEAJA attorney's fees and costs often arise in matters where there are a range of legal claims, as in Ms. Kimmel's case. An Article 78 proceeding is often a hybrid proceeding directed at securing constitutional property or due process rights that have been reduced, delayed or denied by a State actor or agency. (See e.g. Graves v Doar, 87 AD3d 7 40 [2d Dept 2011] [hybrid Article 78 class action brought on behalf of SSI recipients residing in group homes whose SNAP benefits were reduced]; Coleman v Daines, 79 AD3d 554 [1st Dept 2010] [hybrid Article 78 class action on behalf ofMedicaid applicants seeking immediate needs personal care services]; Karamalla v Devine, Sup Ct, Erie County, February 26, 2016, Nugent-Panepinto, 14 4621-4681·8608, v. 5 ' J., index No. 000107-2015 [hybrid Article 78 class action challenging to the denial of State-funded cash public assistance benefits for lawfully present immigrants in Temporary Protected Status]; Brown v Wing, 170 Mise 2d 554 [Sup Ct, Monroe County 1996] [hybrid Article 78 class action challenging an unconstitutional durational residency requirement for persons in State funded public assistance programs].) The characteristic action involves improper action or failure to act by an administrative agency that subsequently infringes on the constitutional interests of low-income persons. Moreover, in the public benefits cases that amici regularly handle, benefits recipients are not required to exhaust administrative remedies when they challenge state statutes, regulations and policies on Constitutional grounds or if pursing administrative remedies would be futile (Watergate II Apartments v Buffalo Sewer Authority, 46 NY2d 52, 57 [1978]; Johnson v Blum, 83 AD2d 731, 732 [3d Dept 1981] [finding no need to exhaust administrative remedies in this hybrid Article 78 proceeding to challenge unconstitutional termination of public assistance to minor children whose .parents had resources in excess of public assistance resource limit and denying attorney's fees], reild in part 58 NY2d 454 [1983] [awarding attorney's fees under 42 USC§ 1988 to petitioners' counsel]; Coleman, 79 AD3d at 560 [hybrid Article 78 and constitutional due process proceeding that challenged failure to timely process Medicaid applications for personal care services and 15 4821-4681-8608, v. 5 failure to notify applicants of those determinations]). Under the State's argument, no attorney's fees under BAJA would be available in cases like those brought by some of the amici to challenging critical constitutional issues in the state courts (Carr v Westchester County Dept. of Social Services, 33 NY2d Ill [1973] [overturning a denial of Medicaid based on an impermissible durational residency requirement]; Aumick v Bane, 161 Mise 2d 271 [Sup Ct, Monroe County 1994] [hybrid Article 78 action that struck down recent amendment to Social Services Law§ 158 (f) that implemented a durational residency requirement to receive Home Reliefbenefits]; Gunn v Blum, 48 NY2d 58 [1979] [hybrid Article 78 proceeding with underlying constitutional law grounds brought to challenge denial of public assistance to minor child whose mother owned a car with value in excess of State resource limit]). In Graves v Doar (87 AD3d 740) a hybrid Article 78 class action was brought to challenge the reduction in food stamp benefits to a group oflow-income disabled persons who lived in group homes as a result of a change to the budgeting methodology used by the New York State Office for Temporary and Disability Assistance (hereinafter OTDA) that was promulgated outside the procedures contained in the State Administrative Procedures Act. The petitioner-plaintiffs in the Graves case prevailed on their Equal Protection argument and the court found that the challenged rule lacked any rational basis. Petitioners were awarded their 16 4821-4681-8608, v. 5 • ,, the hearing and the conciliation letter was not properly addressed (Tormos v Hammons, 259 AD2d 434 [1st Dept 1999]). Both of these issues readily form the basis of basic procedural due process violations actionable under the State and Federal Constitutions in addition to the Article 78 proceeding brought to reinstate Ms. Tormos' public assistance benefits. (See also Shvartszayd v Dowling, 239 AD2d 104 [1st Dept 1997].) The State attempts to delineate a small sampling of cases in which EAJA fees are available and asserts that Ms. Kimmel and Attorney Logan-Baldwin should be foreclosed from recovering fees and costs under the BAJA because the underlying nature of the claim does not fit within a tiny box of the State's making. The limitations to BAJA offered by the State would impose unworkable and unjust limits on EAJA recoveries far beyond this case. A decision consistent with the State's self-interested reasoning would either entirely foreclose the ability of plaintiffs with combined claims that arise in myriad legal services cases to seek any BAJA fees on their cases in state court, or it would put courts hearing cases with hybrid claims, as described above, in a position where the claims had to be apportioned between EAJA eligibility and non-eligibility. Both of these outcomes would be in inefficient for courts and disastrous for low-income plaintiffs with civil rights claims that arise against State agencies or actors. It would effectively undermine the access to justice purposes of the EAJA and burden all involved. 18 4821-4681-8608, v. 5 • ., ' Because of the complexity and hardship this reading of the law would create, amici once again prevail upon this Court to reject the limited and short-sighted reading of the BAJA offered by the State and uphold the position of the Appellate Division. V. Conclusion For these reasons, amici respectfully ask that the decision of the Fourth Department Appellate Division be upheld and the case be remanded to the trial court for an Order directing Defendants to pay the Plaintiffs' attorney's fees and costs by a date certain. 19 4821-4681-8608, v. 5 Respectfully submitted, , ~ A .. ~-\M\--- s ima A. Akhtar enior Staff Attorney Empire Justice Center 119 Washington Avenue, 3rd Fl. Albany, NY 12210 (518) 935-2851 sakhtar@empirejustice.org ••