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July 24, 1998

NEW YORK STATE NATIONAL ORGANIZATION FOR WOMEN, et al., on behalf of themselves, their members, and all others similarly situated, and CLARICE SEEGARS, JANE DOE, DELLIE BRITT and BERNADETTE THOMAS, on behalf of themselves, and all others similarly situated, Plaintiffs-Intervenors, against MARIO CUOMO, individually and as former Governor of the State of New York, MARGARITA ROSA, individually and as former Commissioner of the Division of Human Rights of the Executive Department of New York State, GEORGE PATAKI, individually and as Governor of the State of New York, and EDWARD MERCADO, individually and as Commissioner of the Division of Human Rights of the Executive Department of New York State, Defendants.

Robert L. Carter, U.S.D.J.

The opinion of the court was delivered by: CARTER


ROBERT L. CARTER, District Judge

 This is a class action against defendants arising from constitutional violations allegedly committed by the New York State Division of Human Rights ("SDHR" or the "Division"). The plaintiffs-intervenors seek a declaratory judgment, injunctive relief, and damages.

 Defendants now move to dismiss the damage claims, pursuant to Rule 12(c), F.R. Civ. P., on grounds of qualified immunity. Alternatively, defendants ask the court to dismiss the damage claims asserted against defendant Mercado ("Mercado") under the doctrine of absolute legislative immunity.

 I. Background

 The background of this controversy is set forth in a previous opinion of this court, New York State Nat'l Org. for Women v. Cuomo, 1998 U.S. Dist. LEXIS 4361, No. 93 Civ. 7146, 1998 WL 157029 (S.D.N.Y. Apr. 3, 1998)(Carter, J.), with which familiarity is assumed.

 The present motion is made in response to the court's opinion of April 3, 1998, granting, inter alia, plaintiffs-intervenors' motion for leave to amend the complaint by adding claims against the defendants in their personal capacities. Cuomo, 1998 U.S. Dist. LEXIS 4361, 1998 WL 157029 at *5.

 On April 3, 1998, and April 6, 1998, the plaintiffs-intervenors filed amended and supplemental complaints. These complaints included claims against the defendants in their individual capacities on the grounds that the defendants are and were aware that the practices challenged in this suit violate(d) the constitutional rights of the plaintiffs-intervenors. (NOW Cmplt. at PP 30-35, 37-47, 50-51, 53; Seegars Cmplt. at PP 29-34, 36-45).

 The plaintiffs-intervenors' damage claims are based on New York Executive Law (the "Human Rights Law"), which permits any person claiming to be aggrieved by an unlawful discriminatory practice to file a complaint with the SDHR, and which provides an administrative process for resolving complaints of discriminatory practices within specific time periods. (NOW Cmplt. at PP 18-28; Seegers Cmplt. at PP 22-28). Plaintiffs-intervenors argue that this law creates an entitlement that constitutes a property right that is protected by the Fourteenth Amendment. (NOW Cmplt. at P 28; Seegars Cmplt. at P 28). *fn1" Specifically, the amended and supplemental complaints allege that the defendants have violated the due process and equal protection rights of the plaintiffs-intervenors by

permitting protracted administrative delays in the processing, investigation, and resolution of unlawful discrimination complaints, so egregious that their rights established by the state [pursuant to the Human Rights Law] may be extinguished, by, among other things, dismissal of their cases, because of prejudice to respondents, as a matter of law or fact, and dismissal because the delays have impaired and impeded their ability to prosecute or prove all or part of their claims.

 (NOW Cmplt. at P 3; Seegars Cmplt. at P 3); see also ((NOW Cmplt. at PP 4, 28; Seegars Cmplt. at P 7, 8, 28). Additionally, plaintiffs-intervenors claim that Mercado has violated their rights under the Supremacy Clause by "promulgating and implementing new rules and regulations which authorize employees of SDHR to refuse to accept complaints of aggrieved persons alleging unlawful discriminatory conduct under the Human Rights Law...." (NOW Cmplt. at P 28).

 Defendants claim that they were and are unaware that the practices challenged in this suit violate(d) the constitutional rights of the plaintiffs-intervenors. (Defs.' Mem. of Law at 2). Therefore, they argue, they are entitled to qualified immunity from the damage claims brought against them by the plaintiffs-intervenors as a matter of law. Id. Defendants also argue that Mercado is entitled to absolute legislative immunity from the damage claims as a matter of law because of the protection afforded to public officials acting in a legislative capacity. Id.

 II. Analysis

 A. Relevant Standard

 In Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982), the Supreme Court ruled that a government official who is sued in his individual capacity is entitled to qualified immunity from liability for civil damages if the alleged unlawful conduct did not violate "clearly established constitutional or statutory rights." Id. at 818.

 The standard established in Harlow is an objective one. Id. at 818-19. Whether the relevant law is clearly established does not turn on an official's state of mind or subjective belief. See e.g. Crawford-El v. Britton, U.S. , 118 S. Ct. 1584, 1592, 140 L. Ed. 2d 759 (1998)("Evidence concerning the defendant's subjective intent is simply irrelevant to [the qualified immunity defense]."). Rather, the court must ascertain whether "in light of pre-existing law the unlawfulness [of the alleged conduct] is apparent." Anderson v. Creighton, 483 U.S. 635, 639, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987); see also Crawford-El, 118 S. Ct. at 1593 ("It is not unfair to hold liable the official who ... should know he is acting outside the law.")(quoting Butz v. Economou, 438 U.S. 478, 506, 57 L. Ed. 2d 895, 98 S. Ct. 2894 (1978)). To grant qualified immunity "no rational jury could fail to conclude that it was reasonable" for the defendant officials to believe that their conduct was lawful. LaBounty v. Coughlin, 137 F.3d 68, 74 (2d Cir. 1998)(internal quotation marks omitted). Thus, in qualified immunity analysis, the court's inquiry consists of a determination as to whether a defendant official reasonably could have expected that his action was consistent with established legal principles, or conversely, whether he reasonably should have known that his action was taken in disregard of the law. See Malley v. Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986); Mitchell v. Forsyth, 472 U.S. 511, 528, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985); Davis v. Scherer, 468 U.S. 183, 194-96, 82 L. Ed. 2d 139, 104 S. Ct. 3012 (1984); Crawford-El, 118 S. Ct. at 1597.

 The court's evaluation of whether relevant law is "clearly established" is made on the basis of Supreme Court precedent and the law of this circuit. See Elder v. Holloway, 510 U.S. 510, 516, 127 L. Ed. 2d 344, 114 S. Ct. 1019 (1994)(citing Davis, 468 U.S. at 192, n.9); see also Russell v. Scully, 15 F.3d 219, 223 (2d Cir. 1993). Although violation of state rules or regulations may inform the court's analysis of a qualified immunity defense, the defense may only be defeated by the court's determination that the official violated "clearly established" federal law. See Davis, 468 U.S. at 193-96 & n. 14.

 B. Application of the Standard

 The parties disagree fundamentally on the threshold question of what law governs the conduct challenged in this litigation. Thus, initially the court must determine what law is applicable to the case. See Harlow, 457 U.S. at 808, 818 ("The judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred.").

 The defendants' definition of plaintiffs-intervenors' claims, and thus the rights at issue, is exceedingly specific. They cite a single case, Polk v. Kramarsky, 711 F.2d 505 (2d Cir.), cert. denied, 464 U.S. 1000, 104 S. Ct. 505, 78 L. Ed. 2d 695 (1983), as controlling authority, (Defs.' Mem. of Law at 12), claiming that Polk stands for the proposition that SDHR's delay in processing complaints cannot constitute a Fourteenth Amendment violation if an avenue remains (at SDHR or another tribunal) through which a claimant can pursue his discrimination complaint. (Defs.' Mem. of Law at 12).

 In Polk the appellant argued that SDHR's seven year delay in processing his employment discrimination claim, which had been deferred to the agency by the Equal Employment Opportunity Commission ("EEOC)," gave rise to a claim under the state's Human Rights Law, 42 U.S.C. § 1983, and Title VII, 42 U.S.C. § 2000e, for violation of his Fourteenth Amendment right to due process. In support of his claim, the appellant relied primarily upon Logan v. Zimmerman Brush Co., 455 U.S. 422, 71 L. Ed. 2d 265, 102 S. Ct. 1148 (1982), in which the Supreme Court held that the right to use a state's adjudicatory procedures was a form of property that could not be "finally destroyed without first giving the putative owner the opportunity to present his claim of entitlement." Id. at 431.

 The Second Circuit ruled that Polk's due process rights had not been violated by the Division's delay because his action had survived, albeit long delayed. Polk, 711 F.2d at 509. The Court reached this conclusion because Polk had brought a Title VII action against his former employer, then pending in federal court: given the pending claim, Polk could not logically claim that he had actually been prejudiced by the Division's conduct. Id. That is, Polk was not in the position to establish actual prejudice prior to learning the outcome of the Title VII case. Id. Therefore, the Court held, the principle enunciated in Logan was inapplicable. Id. at 508-09. For whereas Logan involved a "state law [that] completely deprived a claimant of an opportunity to pursue a discrimination claim," Polk's property interest had not been altogether destroyed. Id. Thus, it was unclear whether he had suffered as a result of SDHR's actions.

 Noting the significance that the Second Circuit placed on Polk's inability to demonstrate actual prejudice to his discrimination claim, plaintiffs-intervenors argue that Polk is distinguishable from this case. Unlike Polk, many of their state law claims "have been finally destroyed, in whole or in part"; or the Division's policies and practices have placed their claims in a "zone of risk whereby they face complete or partial extinguishment of all or part of their claim." (Plfs.' Mem. of Law at 7).

 One point of consensus is apparent from the parties' submissions: that in the Second Circuit it is "clearly established" law that the Division's complete destruction of a party's right to pursue a discrimination claim would constitute a Fourteenth Amendment violation. (Defs.' Mem. of Law at 12; Plfs.' Mem. of Law at 9-10). Proceeding from this consensus to ascertaining what law governs qualified immunity analysis, the court finds that important distinctions exist among the members of the plaintiff-intervenor class. These distinctions relate to the basis upon ...

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