Under 21, Catholic Home Bureau for Dependent Children v. City of New York
| Decision Date | 15 November 1984 |
| Citation | 126 Misc.2d 629,481 N.Y.S.2d 632 |
| Parties | , 37 Empl. Prac. Dec. P 35,377 UNDER 21, CATHOLIC HOME BUREAU FOR DEPENDENT CHILDREN, Kennedy Child Study Center, and Catholic Charities Counseling Service, individually and on behalf of all others similarly situated, Plaintiffs, v. The CITY OF NEW YORK, Mayor Edward I. Koch, Harrison J. Goldin, Carol Bellamy, Andrew J. Stein, Stanley Simon, Howard Golden, Donald R. Manes and Anthony R. Gaeta, individually and as Members of the Board of Estimate of the City of New York, Defendants. The SALVATION ARMY, Plaintiff, v. The CITY OF NEW YORK, Mayor Edward I. Koch, Harrison J. Goldin, Carol Bellamy, Andrew J. Stein, Stanley Simon, Howard Golden, Donald R. Manes and Anthony R. Gaeta, individually and as Members of the Board of Estimate of the City of New York, Defendants. |
| Court | New York Supreme Court |
John P. Hale, P.C., New York City, for plaintiffs, Under 21 et al.
Cadwalader, Wickersham & Taft, New York City, (William Moss, Joseph Polizzotto, New York City, of counsel), for plaintiff, The Salvation Army.
Frederick A.O. Schwarz, Jr., Corp. Counsel for the City of New York, New York City, (Alfred Weinstein, Michael S. Adler, New York City, of counsel), for defendants.
An individual's freedom of opportunity to work and earn a living has been recognized as a fundamental liberty. (Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 11, 60 L.Ed. 131 (1915)). Discrimination in employment affects not only the sharing in certain tangible benefits of being an American citizen, but also an individual's ability to provide decently for himself and his family in a job or profession for which he is qualified (Culpepper v. Reynolds Metal Co., 421 F.2d 888, 891 (5th Cir.1970)).
For too long a time, homosexuals have been the victims of this type of discrimination. As a result, an important unit of our municipal government--the New York City Board of Estimate--through a resolution, requested certain private agencies seeking renewal of various social service contracts, to eschew discrimination based on sexual orientation in their hiring or firing of persons connected with these contracts.
Two groups affected by this turn of events--the Roman Catholic Archdiocese of New York and the Salvation Army--in furtherance of what appears to be the moral imperatives of their dogma, which views homosexuality as evil, rather than in furtherance of their presumed devotion to charitable endeavors and good works, have asked this Court to issue preliminary injunctive relief against the enforcement of this resolution.
Their request is denied for two principal reasons: first, the Board of Estimate resolution under scrutiny is within the realm of authority that is properly exercised by the Board of Estimate; and second, the resolution is merely an expression of what I perceive to be the existing law--that discrimination in employment based on sexual orientation or affectional preference is a violation of equal protection under the 14th Amendment to the United States Constitution and Article I, Section 11 of the New York State Constitution.
The plaintiffs are various non-profit charitable organizations sponsored by and affiliated with the Salvation Army (Salvation Army v. Board of Estimate, Supreme Court, New York County, Index No. 24895/1984) and the Roman Catholic Archdiocese of New York (Under 21 et al., v. City of New York, Supreme Court, New York County, Index No. 24891/1984). Each plaintiff-agency provides social services to children, the aged, and others in need in New York City (City) under contracts with the City which contributes a substantial portion (40% to 90%) of the costs of running these programs. These contracts expired on October 31, 1984. The extension agreements offered to each plaintiff contained provisions requiring them not to discriminate in employment on the basis of "sexual orientation" and "affectional preference", i.e., homosexuality. The plaintiffs contend that their religious principles teach them that homosexual behavior is contrary to the teachings of the Bible and destructive of family life and they cannot contract not to discriminate on this basis.
These provisions were included in the extension-contracts by the Board of Estimate which is charged with the duty of approving personal service contracts (Sec. 349 N.Y.C. Charter) and specifically through Resolution No. 382, which was adopted on October 25, 1984 and is applicable to the social services contracts which expired on October 31, 1984. The plaintiffs have applied for preliminary injunctive relief seeking to enjoin the defendants from incorporating into the affected contracts any provision prohibiting discrimination in hiring by the plaintiffs based on sexual orientation and affectional preference. At the hearing, I granted the plaintiffs a temporary restraining order to maintain the status quo.
The plaintiffs question the validity of Resolution No. 382, contending that 1) the defendants are precluded from taking this action because of the application of the doctrines of res judicata and collateral estoppel and 2) the Board's action constitutes an illegal exercise of legislative power. The City takes the position that Resolution No. 382 was a valid exercise of the Board's power to approve contracts and that neither res judicata nor collateral estoppel apply here.
Earlier this year, the plaintiffs brought an action (Under 21 v. City of New York, Supreme Court, New York County, Sept. 5, 1984, Index No. 15046/1984) to invalidate Executive Order 50 (EO 50) which was issued by Mayor Edward I. Koch on April 25, 1980. Executive Order 50 required that all contracts with the City of New York contain a provision prohibiting City contractors from discriminating based on "sexual orientation" or "affectional preference." Also, at issue in that action was Resolution No. 520, adopted by the Board of Estimate on June 28, 1984 which generally approved and ratified the Mayor's executive order. It is interesting to note that apparently the prior leadership of the Archdiocese of New York did not object to this mayoral order and at present, the Brooklyn Diocese finds no conflict between agreeing to the order and providing secular services on behalf of the City.
The prior Court decided that EO 50 was an invalid exercise of mayoral power and granted the plaintiffs summary judgment. Under 21 v. City of New York, Index No. 15046/1984 (Supreme Ct., N.Y.Co., September 5, 1984).
Relying on various cases dealing with executive power, (Subcontractors Trade Assn. v. Koch, 62 N.Y.2d 422, 477 N.Y.S.2d 120, 465 N.E.2d 840 (1984); Broidrick v. Lindsay, 39 N.Y.2d 641, 385 N.Y.S.2d 265, 350 N.E.2d 595 (1976); Fullilove v. Beame, 48 N.Y.2d 376, 423 N.Y.S.2d 144, 398 N.E.2d 765 (1979)), the Court ruled that EO 50 was invalid because it created new policies beyond those established by legislative authority. The Court stated: "Although the Mayor is vested with the power to issue regulations implementing present anti-discrimination legislation, he is not empowered to by-pass the legislative process and create new social policy absent a proper legislative basis."
Concerning Resolution No. 520, passed by the Board of Estimate, the Court likewise ruled it invalid because: "The fact that the Board of Estimate subsequently ratified and approved the Executive Order is of no consequence because the Board cannot validate an invalid Mayoral Order."
The plaintiffs contend here that the City is bound by Special Term's decision in the prior case and as a result is barred by the doctrine of res judicata and collateral estoppel from relitigating the issue of whether the Board of Estimate has the power to enact and enforce a contractual provision prohibiting employment discrimination on the basis of "sexual orientation" or "affectional preference."
The standard for the application of the doctrines of res judicata and collateral estoppel are "that the issue as to which preclusion is sought be identical with the issue decided in the prior proceeding, that the issue have been necessarily decided in the prior proceeding, and that the litigant who will be held precluded in the present proceeding have had a full and fair opportunity to litigate the issue in the prior proceeding."
Capital Telephone Co., Inc. v. Pattersonville Telephone Co., Inc., 56 N.Y.2d 11, 17, 451 N.Y.S.2d 11, 436 N.E.2d 461 (1982); See also Shanley v. Callanan Industries, Inc., 54 N.Y.2d 52, 444 N.Y.S.2d 585, 429 N.E.2d 104 (1981); Schwartz v. Public Administrator, 24 N.Y.2d 65, 71, 298 N.Y.S.2d 955, 246 N.E.2d 725 (1969). Additionally, the issue "must be the point actually to be determined in the second action or proceeding such that 'a different judgment in the second would destroy or impair rights or interests established by the first.' " Ryan v. New York Telephone Co., 62 N.Y.2d 494, 501, 467 N.E.2d 487, 478 N.Y.S.2d 823 (1984), quoting from Schuylkill Fuel Corp. v. B. & C. Nieberg Realty Corp., 250 N.Y. 304, 307, 165 N.E. 456 (1929) (Cardozo, Ch.J.).
The plaintiffs state the issue too broadly in support of their position that the issues are identical in the two actions. They contend that the issue in both actions is: whether the Board of Estimate, absent legislative authority, may compel city contractors to agree not to discriminate in employment decisions based on "sexual orientation" or "affectional preference."
Primarily, the issue in the prior action was the validity of an executive order and the power of the Mayor in enacting it. Based on the finding that the Executive Order was invalid, the Court held that Board Resolution No. 520, insofar as it ratified an invalid Executive Order, was equally invalid. Under 21 v. City of New York, supra. Resolution No. 520 was a blanket resolution passed by the Board of Estimate of general applicability...
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