Levi et al v. New York State Assembly et al

Filing 36

OPINION: re: 19 MOTION to Dismiss the Amended Complaint filed by Dean G. Skelos, Jeffrey D. Klein, The State Of New York, New York State Assembly, Sheldon Silver, New York State Senate, 23 CROSS MOTION for Summary Judgment filed by Uriel Levi. Defendants' motion is granted and the case is dismissed. This opinion resolves the motions listed as item numbers 19 and 23 on the docket. SO ORDERED. (Signed by Judge Thomas P. Griesa on 1/29/2014) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

URIEL LEVI
Plaintiff,
13 Civ. 00438
v.

NEW YORK STATE ASSEMBLY, NEW
YORK STATE SENATE, SHELDON
SILVER, DEAN G. SKELOS, JEFFREY D.
KLEIN, THE STATE OF NEW YORK,

OPINION

Defendants.

Plaintiff, Uriel Levi, individually and as father and natural guardian of
Elisheva Levi, an infant, brings this civil action under 42 U.S.C. § 1983 against
the following defendants: (1) the State of New York, (2) the New York State
Assembly and New York State Senate, and (3) the following state legislators—
Sheldon Silver, Speaker of the New York State Assembly, and Chair of the
Assembly Rules Committee; Dean G. Skelos, President Pro Tempore of The New
York State Senate, Chair of the Senate Republican Conference Committee, and
Chair of the Senate Rules Committee; and Jeffrey D. Klein, President Pro
Tempore of the New York State Senate, and Chair of the Senate Independent
Democrat Conference. Levi alleges that defendants violated his as well his
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daughter’s constitutional rights by failing to include private schools within the
coverage of Project SAVE (“Safe Schools Against Violence in Education”)—a set
of laws passed to protect public school students from sexual abuse by public
school employees. Levi seeks declaratory and injunctive relief, requiring
defendants to extend Project SAVE to private schools.
The defendants move to dismiss the complaint. The motion to dismiss is
granted on the basis that defendants are protected by sovereign and legislative
immunity.
The Complaint
The following facts are drawn from the complaint and assumed to be true
for purposes of the motion.
Levi is an Orthodox Jew and his daughter—Elisheva Levi—attends a
private, Modern-Orthodox Jewish school located in Nassau County, New York.
Levi alleges that there have been repeated instances of child abuse in private
schools, especially religious schools, and that school officials are not taking
sufficient steps to protect the students. In particular, Levi alleges that the
Ultra-Orthodox Jews, rather than the Modern-Orthodox Jews, have worked to
prevent government legislation that would reform private school practices to
prevent child abuse.
In 2001, the New York State Assembly and Senate considered Project
SAVE. The bill mandated that New York public schools: (1) conduct
fingerprinting and criminal history background checks for all public school job
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applicants throughout New York, (2) report to law enforcement all instances of
abuse committed by public school employees upon public school students, (3)
end secret agreement policies, or “silent resignations”, whereby public schools
agree not to report to law enforcement those public school employees accused
of abuse so long as the employees resign, and (4) require school safety plans.
When considering Project SAVE, legislators consulted with private school
officials. The legislators sought the school officials’ opinion as to whether
Project SAVE should also cover private schools. In particular, Levi alleges that
the Legislature consulted with private school officials at religious schools—
namely, Catholic and Ultra-Orthodox Jewish institutions. Levi alleges that
these school officials, without consulting with the parents of their school
children, advised the legislators that they did not want the bill to cover the
religious schools.
The New York State Legislature passed Project SAVE and the Governor
signed it into law. The legislation did not include private schools in its
coverage.
Through their failure to extend the Project SAVE legislation to include
religious schools, defendants, according to Levi, have violated his as well as his
daughter’s constitutional rights.
First, Levi alleges that defendants have denied both him and his
daughter their right to equal protection of the law under the Fourteenth
Amendment. Namely, by having to attend a school where the teachers are not
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subject to background checks, Levi’s daughter does not have the same
protection and security as students in public schools.
Second, Levi claims that the defendants have infringed upon the liberty
clause of the Fourteenth Amendment. In exempting religious schools from
Project SAVE, the defendants, according to Levi, have constructively abrogated
the constitutional right of children to attend religious schools and the rights of
parents to send their children to religious schools because the schools cannot
ensure the students’ safety.
Third, Levi alleges that defendants have infringed upon his as well his
daughter’s First Amendment right to freely exercise their religion. The
defendants, through failing to include religious schools in Project SAVE, have
created an unsafe educational environment for students, like Levi’s daughter
Elisheva, that threatens both children’s right to practice their religion and
impairs the parents’ right to send their children to religious school.
Fourth, Levi claims that defendants have violated the Establishment
Clause of the First Amendment. Specifically, by declining to extend Project
SAVE to private schools, the Legislature prioritized the values of the UltraOrthodox, who were strongly against the legislation, as opposed to the ModernOrthodox Jews, like the plaintiff who had had a less-defined position on the
legislation. As a result, Levi alleges that the Legislature has endorsed the form
of Judaism practiced by the Ultra-Orthodox.

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Levi requests that the court issue a declaratory judgment stating that
defendants have violated his as well as his daughter’s constitutional rights and
requiring defendants to pass legislation extending Project SAVE to private
schools.
Discussion
Defendants raise several defenses to Levi’s claims: (1) defendants are
protected from suit by sovereign and legislative immunity, (2) Levi does not
have standing to file suit against defendants, and (3) Levi has failed to state a
claim for which relief can be granted. The court need not address all of
defendants’ arguments as the court finds that defendants are protected from
suit by sovereign and legislative immunity.
In the complaint, Levi names multiple defendants—the State of New
York, the New York State Assembly and New York State Senate, and individual
members of the State Senate and State Assembly. The court will address each
defendant in turn.
The Eleventh Amendment prevents Levi from filing suit against the State
of New York. The Eleventh Amendment to the United States Constitution
states that “[t]he judicial power of the United States shall not be construed to
extend to any suit in law or equity commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any
Foreign State.” U.S. Const. amend. XI. “It has been interpreted to prevent
federal courts from exercising jurisdiction over suits brought by citizens of a
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state against the state or the state's agencies.” MCI Telecommunications
Corporation v. New York Telephone Company, 134 F. Supp. 2d 490, 496
(N.D.N.Y. 2001).
It is true that there are limits to state sovereign immunity. Congress
may enact a statute that abrogates state immunity and subjects the states to
suit. See In Re Deposit Insurance Agency, 482 F. 3d 612, 617 (2d Cir. 2007)
(citing Tennessee v. Lane, 541 U.S. 509, 517 (2004)). Also, a state may waive
its Eleventh Amendment immunity- for example, by voluntarily invoking federal
jurisdiction, as when the state itself brings a federal suit or removes a case
from state to federal court. Id. However, in this case, Congress has not
sanctioned, nor has the State of New York consented to the present litigation.
Accordingly, the cause of action against the State of New York is dismissed.
Both the New York State Assembly and the New York State Senate are
also protected from suit by the doctrine of sovereign immunity. A
governmental entity that is “like an arm of the state” is entitled to Eleventh
Amendment immunity. See Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir.
2009) (quoting Woods v. Rondout Valley Central School District Board of
Education, 366 F.3d 232, 236 (2d Cir. 2006)). Surely, the Legislature is an
arm of the state and protected from suit by sovereign immunity. See Gollump
v. Spitzer, 568 F.3d at 366. Thus, the cause of action against the New York
State Assembly and the New York State Senate is dismissed.

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The doctrine of legislative immunity prevents Levi from filing suit against
the individually named legislators. The legislators are not protected by
sovereign immunity because “under the venerable doctrine of Ex parte Young,
209 U.S. 123 (1908), a plaintiff may sue a state official acting in his official
capacity-notwithstanding the Eleventh Amendment-for ‘prospective injunctive
relief’ from violations of federal law.” In re Deposit Insurance Agency, 482 F.3d
at 617. In his complaint, Levi has alleged violations of federal law pursuant to
§ 1983 and named the following defendants in their official capacity: (1)
Sheldon Silver—Speaker of the New York State Assembly and Chair of the
Assembly Rules Committee, (2) Dean G. Skelos—President Pro Tempore of the
New York State Senate, Chair of the Senate Republican Conference Committee,
and Chair of the Senate Rules Committee, and (3) Jeffery D. Klein—president
Pro Tempore of the New York State Senate and Chair of the Senate
Independent Democrat Conference.
While under Ex Parte Young a plaintiff may file suit against a state
official, the Supreme Court has held that state legislators are protected by
legislative immunity. State legislators are immune from suit under § 1983
actions for declaratory or injunctive relief. See Supreme Court of Virginia v.
Consumers Union of U.S., Inc., 446 U.S. 719, 732 (1980). The Court explained
that “a private civil action, whether for an injunction or damages, creates a
distraction and forces [legislators] to divert their time, energy, and attention

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from their legislative tasks to defend the litigation.” Id. at 733 (quoting
Eastland v. United States Servicemen’s Fund, 421 US 491, 503 (1975)).
Legislators are entitled to absolute immunity—both in their official and
individual capacity—when they are performing legislative functions. See
Schubert v. City of Rye, 775 F.Supp. 2d 689, 701 (S.D.N.Y. 2011). “Courts
apply a functional test to determine whether an act is legislative, which focuses
‘not on the official’s identity, or even on the official’s motive or intent, but on
the nature of the act in question.’” Id. (quoting State Employees Bargaining
Agent Coalition v. Rowland, 494 F.3d 71, 82 (2d Cir. 2007)). “Absolute
legislative immunity attaches to all actions taken in the sphere of legitimate
legislative activity.” Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998). There is no
doubt that through their involvement in the Project SAVE legislation, the state
legislators in this case were involved in legislative activity. Accordingly, the
state legislators have absolute immunity from Levi’s suit.
On June 26, 2013, Levi filed a cross motion to amend his complaint and
for summary judgment. In particular, Levi moved to amend his complaint to
also name each legislator in his individual capacity. However, given that
legislators have absolute immunity when performing legislative activities, see
Schubert v. City of Rye, 775 F.Supp. 2d at 701, Levi has proposed a futile
amendment and thus, the court denies the motion to amend the complaint.
See Lipton v. New York University College of Dentistry, 865 F. Supp. 2d 403,

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407 (S.D.N.Y. 2012). Furthermore, the court need not reach Levi's motion for
summary judgment as the court finds that this case is dismissed.
Conclusion

Defendants' motion is granted and the case is dismissed. This opinion
resolves the motions listed as item numbers 19 and 23 on the docket.
SO ORDERED.
Dated: New York, New York
January 29,2014

'JSDCSDNY
DOCUMENT
ELECfRONICALLY FILED
DOC#: _ _______~DATE FILED: , I z. 4\ II ""

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Thomas P. Griesa
U.S. District Judge

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