LGBT Rights. Kramer Levin has assumed an increasingly prominent role in pro bono work in the area of LGBT rights.

Kramer Levin was co-counsel in Hernandez v. Robles, the historic but ultimately unsuccessful case seeking equal marriage rights for same-sex couples under the New York State Constitution. The case started with a victory in 2005 when Justice Doris Ling-Cohan of New York County Supreme Court ruled that the right to participate in civil marriage cannot constitutionally be denied to same-sex couples. The decision was reversed in the Appellate Division in December 2005, and that decision was affirmed by a 4-2 vote in the New York Court of Appeals in July 2006. Although the decision was disappointing, Chief Judge Judith Kaye’s passionate dissent was inspiring, and backlash against the decision has helped fuel the movement to provide equal marriage rights through legislation.

Hernandez was brought by Lambda Legal Defense and Education Fund, the nation’s oldest and largest organization devoted to advancing the rights of lesbians and gay men, with Kramer Levin as co-counsel. The Kramer Levin team was led by Jeff Trachtman and Norm Simon, who assisted Lambda Legal on several earlier landmark cases, including Lawrence v. Texas. The core litigation team also included Aaron Frankel, Michael Sternhell, and Tricia Seith who worked with the plaintiffs and their relatives to prepare affidavits that demonstrated the impact of the marriage ban on real families, and Darren Cohen and Josh Kelner, who made invaluable contributions during the appeal process. Other important contributions to the case were made by Kerri Ann Law, Jen Rochon, Paul Schoeman, Steve Sparling, Joel Taylor, Eric Tirschwell, and Jen Brevaire, as well as then-summer associates Michael Brooks, Adam Busch, Jean-Paul Ciardullo, Michael Feuer, Aaron Fleisher, Emily Groendyke, Arielle Warshall Katz, Matthew Keller, Alison Monahan, and Julie Weiswasser.

In the wake of Hernandez, Kramer Levin has continued to co-counsel with Lambda Legal in a series of cases seeking respect within New York State for marriages entered into in other jurisdictions. In one such case, Jeff Trachtman, Norm Simon, Darren Cohen, Aaron Fleisher, and Michael Eisenkraft represent a retired Nassau County schoolteacher who married his partner of 43 years in Canada but was denied the spousal health insurance benefits to which he was entitled. The school district and the Department of Civil Service, which administers health plans for municipal employees throughout the state, took this position even though the state Attorney General, Controller, and other public officials and private entities throughout the state have recognized New York’s long-standing legal rule that a marriage valid in the jurisdiction where it was celebrated should be respected in New York even if such a marriage could not be entered into within the State. Ignoring this long-settled precedent, a Nassau County Supreme Court Justice ruled in July 2006 that the recent Hernandez decision (which had simply upheld the constitutionality of limits on who can marry within New York) somehow foreclosed application of the rule requiring recognition of valid foreign marriages. While our appeal of this decision was pending, newly elected Governor Spitzer implemented a change in state policy consistent with the marriage recognition rule, extending marriage recognition rights to employees of more than 800 public entities.

The same team of Kramer Levin lawyers has also joined Lambda Legal in representing married same-sex couples who intervened as defendants in cases brought by conservative religious activists challenging the decisions of the New York State Comptroller and Westchester County Executive, consistent with the marriage recognition rule, to respect valid foreign marriages of same-sex couples. In one such action, Godfrey v. Spano, the trial court recognized that the County Executive had acted lawfully in declaring that he would respect valid foreign marriages, and dismissed the challenge. In the other case, Godfrey v. Hevesi, the court denied an initial motion to dismiss on standing grounds, but permitted Kramer Levin and Lambda Legal's clients to intervene and defend the Comptroller's actions on the merits. Both cases are still pending.

In a matter bridging gay rights and September 11th issues, Jeff Trachtman, Kerri Ann Law, and Eric Shimanoff helped vindicate the right of the same-sex domestic partner of a World Trade Center victim to compensation from the September 11th Victim Compensation Fund. Because the victim died intestate and her family refused to recognize our client’s partnership with the victim, our client was unable to act as the victim’s personal representative. Eric and Kerri Ann persuaded the Special Master to increase the award to recognize the domestic partnership. Unfortunately, once the Fund issued the full award to the victim’s brother in his role as personal representative, the brother declined to distribute any portion of the award to our client, as the Special Master had intended, or even to negotiate further, forcing the matter into litigation. Jeff and Eric obtained rulings sustaining the complaint and requiring the brother to maintain the funds in escrow pending resolution of the dispute. That decision was affirmed by the Appellate Division, Second Department, early in 2006, and the matter settled shortly thereafter on favorable terms. Then-summer associates Emily Groendyke and Jessica Tuchinsky assisted on the matter.

Voting Rights. In addition to the Florida case described above, the firm worked on voting rights issues with the Asian American Legal Defense and Education Fund (AALDEF), a 32-year old New York-based organization that protects and promotes the civil rights of Asian Americans through litigation, legal advocacy, and community education. Chatchada Chiamprasert, Jacqueline Edwards, Aaron Fleisher, Geoff Hu, Leslie Nguyen, and Susan Kim served in AALDEF’s annual voting rights protection project as polling monitors. Each year, volunteers in this project observe voting procedures at various polling sites and ensure that any irregularities, complaints, or violations of law are properly reported to government regulators. In 2006, approximately 625 volunteers monitored 60 polling sites in New York, New Jersey, Massachusetts, Michigan, Illinois, Pennsylvania, Virginia, Maryland, and Washington, D.C. Chatchada, along with other poll monitors, later testified before the New York City Voter Assistance Commission to report her findings and advocate for improvements in future elections.

Prisoner Rights. Craig Siegel, Michael Sternhell, Joseph Schwartz and Jennifer Diana represent Lawrence Johnson in his civil rights lawsuit against two corrections officers employed at the Metropolitan Detention Center (“MDC”) in Brooklyn, a facility that has recently come under sharp criticism from the federal government for its treatment of certain pretrial detainees. The suit alleges that while Mr. Johnson was a detainee, another detainee plunged a blade into his throat and slashed his face at the instigation of a corrections officer. The potentially lethal attack left Mr. Johnson permanently scarred. The officer was apparently upset that Mr. Johnson — a former barbershop owner — had shown an MDC barber how to do a “Fadeout” haircut without the officer’s permission. In addition, the suit alleges that soon after Mr. Johnson filed a pro se civil rights lawsuit arising out of the first attack, another corrections officer intentionally left him rear-cuffed in a cell with another uncuffed detainee for approximately seven hours. The officer repeatedly ignored Mr. Johnson’s pleas for help. When a supervisor finally responded, Mr. Johnson’s left hand was terribly swollen and numb and he was suffering severe pain in his left shoulder and upper back. The lawsuit seeks damages for Mr. Johnson’s physical and emotional injuries and for the injuries to his constitutional rights, including his rights under the Fifth Amendment’s Due Process Clause and the Eighth Amendment’s Cruel and Unusual Punishment Clause. The case is currently pending before the United States District Court in the Eastern District of New York, after the Second Circuit Court of Appeals overturned an earlier dismissal of the lawsuit on procedural grounds. Then-summer associate Emma-Ann Deacon assisted on this matter.

Kramer Levin also submitted an amicus curiae brief to the New York State Court of Appeals on behalf of The Sentencing Project and seventeen additional organizations, supporting a suit instituted by family members of New York prisoners and two organizations of criminal defense lawyers, challenging surcharges imposed on New York State prisoners' telephone calls to their families, loved ones, and counsel. Press reports have calculated the surcharge to make such calls six times more costly than those placed by persons not confined in state custody. The Sentencing Project, a Washington-based think tank and advocacy organization committed to criminal justice reform, urged the Court of Appeals to consider extensive research by which scholars and correctional professionals have found that prisoners who maintain family ties are less likely to commit crimes once they are released, and that telephone calls are a vital means by which prisoners preserve those bonds, particularly in light of the distant location of many facilities holding prisoners from New York City. Additional friends of the court joining the brief included the NAACP Legal Defense and Educational Fund, Inc., and the National Association of Criminal Defense Lawyers. In February 2007, the Court of Appeals ruled largely in favor of the family members challenging the surcharge, permitting their action to proceed insofar as it alleged violations of the state constitution. The brief was prepared by associate Keith Donoghue, with assistance from Erin Oshiro and Aaron Fleisher. Partner Eric Tirschwell supervised the project.

Reproductive Freedom. Gregory Horowitz, Ilyssa Sena, Patricia Seith, and Josh Kelner prepared an amicus curiae brief on behalf of the American Civil Liberties Union and the ACLU of Texas that helped convince a state court of appeals in Texas to reverse the convictions of two pregnant women for delivering a controlled substance to their fetuses under a statute barring delivery of drugs to children. Our brief argued, under both the U.S. and Texas Constitutions, that the novel prosecutions violated the women’s right to privacy by opening the door to widespread interference with virtually every aspect of a pregnant woman’s life on the pretext of protecting the fetus; that subjecting pregnant women to potential criminal prosecution in such circumstances would discourage them from seeking medical treatment and prenatal care, cause them to be less candid with their physicians, or prompt them to terminate their pregnancies rather than face prosecution; and that the prosecutor’s reading of the statute violated due process because the law was not sufficiently clear to provide citizens with fair notice that this conduct was criminally prohibited. In a March 2006 decision, a state court of appeals in Texas unanimously reversed the women’s convictions. In a separate matter, Grace O’Hanlon, Ilyssa Sena, and Tobias Jacoby researched certain reproductive freedom issues for the New York Civil Liberties Union.

Establishment Clause. Kramer Levin filed an amicus curiae brief with the United States Court of Appeals for the Eleventh Circuit in a potentially landmark First Amendment Establishment Clause case involving the placement of an evolution disclaimer sticker in high school science textbooks in the public schools of Cobb County, Georgia. The sticker states, among other things, that “evolution is a theory, not a fact” and singles out evolution for special scrutiny. The Kramer Levin brief argued that “the district court correctly held that, regardless of the School Board’s purpose in adopting the sticker, the sticker has the impermissible effect of sending a message that the School Board has taken the side of religious objectors in the debate over the teaching of evolution.” Kramer Levin’s brief was authored by Eric Tirschwell and Marjorie Sheldon, with the assistance of Joshua Kelner and Nugzari Jakobishvili. The brief was filed on behalf of the American Jewish Congress, an organization founded in 1918 to protect the civil, political, economic, and religious rights of American Jews that has participated in many cases involving the constitutional principles guaranteeing the separation of church and state.

Free Speech. In November 2006, several middle school students in Staten Island faced the possibility of lengthy suspensions after allegedly posting false and derogatory profiles of their school’s principal and two assistant principals on the popular networking website MySpace.com. Under the supervision of partner Tom Moreland, associates Dana Post and Seth Schinfeld took on the representation of one of these students and worked closely with staff attorneys from Legal Services for New York City to provide counsel to two additional students implicated in the creation of the online postings. In early December, Dana and Seth appeared before the Office of Student Suspension Hearings in Brooklyn and appealed the student suspensions in a consolidated hearing. Though the Hearing Officer’s written decision remains forthcoming, a short disposition issued less than a week after the hearing dismissed the suspension of Kramer Levin’s client in its entirety, and the student was immediately reinstated to the classroom.

Education Rights. Gregory Horowitz, assisted by Parthena Psyllos, Shoshana Altschuler, Julie Weiswasser, and Seth Schinfeld, are representing Saint Basil Academy, the Greek Orthodox Archdiocese home for children in need, in an effort to obtain free and appropriate public education for the children in its care. St. Basil, which operates on a magnificent 250 acre Hudson River estate in Garrison, New York (formerly owned by Jacob Ruppert, the original owner of the New York Yankees), has a distinguished history dating back to its founding in 1944 and includes among its alumni Senator Olympia Snowe of Maine. In 1998, St. Basil closed down its on-site school and sought to enroll its children in the public schools of Garrison and neighboring communities. For reasons that are at least economic and perhaps less honorable, the Town has put up vigorous resistance. In November 2006, an administrative law judge ruled that the New York State Office of Children and Family Services improperly denied an operating certificate to St. Basil, resolving the key issue in dispute. The firm continues to represent St. Basil in related disputes and hopes to negotiate a consensual resolution of outstanding issues that will benefit all parties. Then-summer associate Jennifer Sharret also worked on this matter.

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