Video Interview, Ellen Yacknin, September 6, 2013
- CREW: Kevin, I am rolling.
- Whenever you're ready, sir.
- KEVIN INDOVINO: OK, Ellen, first, the important question.
- I need to correct spelling of your first
- and last name of how you want it to appear on screen.
- ELLEN YACKNIN: Ellen, E-L-L-EN--
- Middle initial M, as in Mary--
- Yacknin, Y-A-C-K, N, as in Nancy, I, N, as in Nancy.
- KEVIN INDOVINO: OK.
- Do we want to put esq, or esquire, or anything
- with that, or?
- ELLEN YACKNIN: No.
- KEVIN INDOVINO: OK.
- ELLEN YACKNIN: I don't think so.
- KEVIN INDOVINO: And a title underneath.
- How would you want us to refer to you?
- Attorney at law at the time or?
- ELLEN YACKNIN: Yeah.
- Attorney.
- And say--
- KEVIN INDOVINO: OK.
- ELLEN YACKNIN: You know, what I guess for the purposes--
- If you're going to want to identify who I am now,
- you can say Judge Yacknin.
- Or honorable-- H-O-N.
- KEVIN INDOVINO: Um-hm.
- ELLEN YACKNIN: But during this conversation,
- don't address me as judge.
- KEVIN INDOVINO: Right.
- But that maybe just enough.
- ELLEN YACKNIN: Yeah.
- KEVIN INDOVINO: H-O-N dot--
- ELLEN YACKNIN: Yeah That's good.
- KEVIN INDOVINO: Ellen Yacknin.
- OK.
- So let's start out-- and like I said,
- we're going to focus just on this case.
- We might--
- ELLEN YACKNIN: Yeah.
- KEVIN INDOVINO: Can you tell where you were
- and what you were doing at the time
- when you first heard about this tax exemption case
- against the Gay Alliance?
- ELLEN YACKNIN: I had moved to Rochester in 1989 from Buffalo.
- And when I moved here, I got involved with the Gay Alliance
- of the Genesee Valley.
- Having been involved with them, I
- became a board member probably in early 1990 or in mid-1990.
- By the time I became a board member,
- the GAGV was just in the process of having just
- bought its first building, which it'd bought in March, 1990,
- and was moving into its building.
- After moving into its building, I
- was on the board and the GAGV applied for a property tax
- exemption, which it was entitled under state law,
- because it was a charitable, educational, not
- for profit organization.
- However, after it applied for its property tax exemption--
- KEVIN INDOVINO: Hold that thought.
- CREW: Let's pause for a minute.
- ELLEN YACKNIN: Actually, I take that back.
- I want to correct something.
- KEVIN INDOVINO: OK.
- ELLEN YACKNIN: The GAGV bought it's building in March, 1990.
- And it was sometime after that, or during that period of time,
- that I became a board member.
- The GAGV moved into its building.
- It was very excited.
- And then in January, 1991, the GAGV
- applied for its property tax exemption,
- to which was entitled under state law,
- because it was a not for profit agency that
- provided charitable, educational services to the LGBT community.
- However, in March, 1991, when I was on the board, the City
- Assessor, Tom Ryan, who was mayor at the time,
- denied our application for a property tax exemption.
- That information was brought to the board's attention.
- And it was extremely important that we do something about it,
- because property taxes were extremely expensive.
- And it was not something that the GAGV
- had figured into its calculations
- in terms of its budget.
- Claire Parker was president at the time.
- And because I was a lawyer, I volunteered
- to help the GAGV out.
- KEVIN INDOVINO: What were your feelings
- when you first saw this denial from the City Assessor?
- What was your first thought of what they were trying to do?
- ELLEN YACKNIN: Well, my first thought
- was it's possible they didn't understand the law.
- And it was something that was possible to rectify
- administratively.
- Wrong decisions are made many, many times through error,
- inadvertence, not understanding the law.
- And I truly thought that all we had to do
- was appeal the denial administratively
- through its administrative appeal process,
- and we could resolve the whole matter.
- So, Claire and I worked together with other members of the board
- to prepare an administrative appeal.
- There was a hearing process.
- Claire came as president of the board
- and testified and explained what our mission was
- to provide charitable services to members
- of the LGBT community, to provide educational services
- to members.
- A lot of the services were provided for free.
- At the time there was a strong outreach effort
- for people with AIDS as well.
- That was one of our strong missions.
- We went through the hearing process.
- But we were surprised, after we went
- through that pretty elaborate process,
- to then have the administrative appeal denied as well.
- That's when it became clear to us
- that, in order to proceed further,
- we were going to have to go to court.
- And that was going to be a very tedious process.
- It was also, at that time, that we
- began to realize there was a lot more going on
- than just inadvertent mistake or misunderstanding
- of applicable law.
- And we began to realize that it had
- to do a lot with discrimination against this organization that
- provided services to the LGBT community,
- solely for that reason.
- KEVIN INDOVINO: So let's back it up a little bit.
- Let's break that down a little bit.
- You're at the administrative hearings.
- You once again got denied at the administrative hearings.
- What was the reason that they gave you
- for denying your tax exemption?
- ELLEN YACKNIN: The first reason, prior
- to the administrative hearing, that we
- were denied tax exempt status was
- because we were not exclusively an educational organization.
- We had checked the box that had been checked by Claire when
- she submitted the property tax exempt status application was
- educational.
- That was the reason that we were originally told.
- After we went through the administrative appeal,
- where we explained that the law said it was perfectly OK
- for an organization that was partially educational--
- which we were-- partially charitable-- which we were--
- partially incorporating advocacy type activities as well,
- that was permissible under the law.
- The city came back and argued, no.
- In order to get property tax exempt status
- you had to be exclusively either educational, or exclusively
- charitable, or exclusively for the moral interests
- of the community that you were serving.
- And having shifted their position,
- we began to realize that they were coming up
- with rationalizations to deny property
- tax exempt status, rather than any kind of legal basis.
- KEVIN INDOVINO: So from there, it
- was a little light bulb that went off in your head and said,
- this is bigger than what we thought it--
- ELLEN YACKNIN: Absolutely.
- KEVIN INDOVINO: --actually was.
- ELLEN YACKNIN: It was definitely bigger
- than what we had originally anticipated.
- KEVIN INDOVINO: Talk to me about that moment when you realized,
- this is more about discrimination
- than just a simple clerical error.
- ELLEN YACKNIN: Well, it was discouraging for me,
- having come from Buffalo, to find out that Rochester was
- reacting in that kind of way.
- Being a lawyer, I knew that the decision was not
- probably coming simply from the bureaucrats at the City
- Assessor's office.
- A decision to deny property tax exempt status,
- particularly after having gone through the appeal--
- which is where the City Assessor was
- represented by legal counsel from the city's office--
- was definitely coming from members of the government.
- And so this was a critical governmental decision
- to deny property tax exempt status to the GAGV solely
- because of its mission and who it served.
- To me, that was extremely discouraging,
- because I had always heard that Rochester
- was an extremely gay-lesbian friendly town and community.
- And, in fact, it was in many respects,
- because we had our community.
- KEVIN INDOVINO: I want to get that thought again so we
- can a little bit more clearly.
- But that same very thought.
- That same thought.
- ELLEN YACKNIN: Having come from Buffalo,
- I had always thought that Rochester
- was a very friendly gay-lesbian supportive community.
- And it was, in many respects.
- It had the oldest community center in the area.
- Rochester also has, and still continues
- to have, the Empty Closet, which is the oldest gay and lesbian
- newspaper in the country.
- And I thought that it was far more
- friendly than it appeared the city of Rochester was reacting.
- KEVIN INDOVINO: I'm going to have
- you say that one more time, because you said something
- that might not be correct.
- ELLEN YACKNIN: OK.
- KEVIN INDOVINO: We're not sure if the Empty Closet
- is the oldest in the country.
- ELLEN YACKNIN: Really?
- KEVIN INDOVINO: We know it's the oldest in New York State
- ELLEN YACKNIN: OK.
- KEVIN INDOVINO: But it may be only the second in the country.
- ELLEN YACKNIN: Oh, no.
- OK.
- KEVIN INDOVINO: So, basically, the same thought,
- maybe even just don't even mention the Empty Closet.
- ELLEN YACKNIN: Sure.
- Yeah.
- I was very discouraged when I realized
- that there was a lot more going on to the city's decision
- to deny property tax exempt status
- than we had first thought.
- I had moved to Rochester a couple of years
- earlier thinking that Rochester was
- an extremely gay friendly town and community.
- Had a very well established gay community center,
- the Empty Closet was one of the oldest newspapers
- for the gay and lesbian community in the country.
- And it was very discouraging when
- I realized that Rochester's decision, which
- was a governmental decision, not just a bureaucratic decision,
- was to treat the GAGV differently than it treated
- other organizations in town.
- KEVIN INDOVINO: So just prior to making the decision
- to take this court, I mean, you had
- hearings with the City Assessor's office
- and the administration.
- Were there any direct conversations
- with the mayor at the time?
- Did you get any sense from the mayor directly of really
- what was going on?
- ELLEN YACKNIN: Before we--
- well in order to go to court, there was a time line.
- There was a four month time line under the statutes that
- apply to this kind of case.
- So we had to proceed quickly.
- But before we filed the lawsuit, we
- did make gestures to try to communicate with Mayor Ryan.
- Directly, I wrote a letter to Mayor Ryan
- asking him to perhaps reconsider the decision,
- and to make some different decisions here.
- In addition, Tim Mains, the first city
- councilman in Rochester, who is gay.
- We reached out to him as well.
- He made overtures to the mayor on our behalf.
- But, unfortunately, we received no responses
- from the mayor's office.
- And because there was this four month timeline
- we had to go further by filing a lawsuit.
- Once the lawsuit was filed, it then
- unfortunately it becomes the position, sometimes,
- of defendants--
- particularly governmental defendants,
- particularly when there's press around an issue
- like there was in this case--
- to dig in and say they're not going
- to discuss things further.
- I will say this.
- We had many, many private discussions and negotiation
- discussions, but only after the first decision came out,
- after Judge Siragusa issued his decision.
- Between Judge Siragusa's decision and the appeal,
- we did have many discussions with legal council
- for the city of Rochester.
- But those discussions led to no outcome either.
- KEVIN INDOVINO: OK.
- So let's talk about preparing to take this to court.
- What was your thought process?
- How were you going to prepare this?
- Because, to me, it seems to be pretty much a no-brainer.
- This shouldn't be a tough case to win.
- But I'm sure you don't go into a case thinking that.
- So just talk me a little bit about the thought process
- while preparing to take this to court.
- ELLEN YACKNIN: In terms of--
- I've done a lot of litigation in my career
- and I've done a lot of litigation
- before I took this case.
- No case is ever easy.
- No one can ever predict outcomes.
- If we could, there would be no reason
- to go to court and litigate.
- I knew that the law at the time was not
- very friendly to gays and lesbians
- with respect to discrimination claims.
- I knew that that was not going to be our strongest case.
- At the time, and even still, there
- is no constitutional right not to be discriminated
- against because you are gay, or lesbian, or bisexual,
- or transsexual.
- So that claim was going to be difficult.
- But it was also clear to us that that
- was the essential reason, the key reason,
- the only reason why the city of Rochester
- was denied property tax exempt status.
- So we made two basic arguments.
- One was that under the statute itself
- that New York has that says that every organization who performs
- educational, charitable, religious, serving poor people
- type activities is entitled-- it's
- non-discretionary-- to property tax
- exemption for their buildings.
- That was our first argument, that the statute itself
- required the GAGV to be entitled to that status.
- The second argument was our constitutional argument.
- And we pushed the envelope in terms of asking
- Judge Siragusa or the court--
- we didn't know it was Judge Siragusa at the time--
- to consider that the argument that the GAGV was being
- discriminated against, treated differently
- than any other agency in the city or the state,
- simply because it involved gay and lesbian,
- transgender, bisexual people.
- I knew it was going to be very difficult.
- KEVIN INDOVINO: For someone who is not a law person,
- like myself, can you define for me
- what makes this discrimination case a constitutional case?
- What is the basis that you're presenting
- a constitutional case?
- ELLEN YACKNIN: We raised two constitutional arguments.
- What makes this a constitutional case is
- that the Fourteenth Amendment of the United States Constitution
- and the comparable provision of the New York State Constitution
- both have provisions that say that, when
- the government discriminates--
- let me rephrase that.
- Both in Federal Constitution, the Fourteenth Amendment
- of the Federal Constitution and the comparable provision
- of the New York State Constitution
- provide that the government shall treat every person
- equally under law.
- When the City Assessor made its decision
- to deny tax exempt status, our argument
- was that the government was violating
- those constitutional provisions, because It
- was treating the GAGV differently
- than any other organization.
- KEVIN INDOVINO: Oh, OK.
- ELLEN YACKNIN: And that was our constitutional argument.
- We also raised the arguments, however,
- related to First Amendment, freedom of speech,
- saying that the reason we were being denied property tax
- exemption was because the government was making
- a decision based solely on the GAGV's message, which
- was to support gay, lesbian, bisexual, transgendered
- activities.
- And that was a freedom of association,
- freedom of speech argument.
- KEVIN INDOVINO: So, in retrospect--
- just going to give me your thoughts this--
- this went from a very simple, oh,
- this is an administrative error thing, obviously,
- to something that now challenges the federal constitution.
- Talk to me about that.
- Because I can't imagine, at the beginning, you were you
- were expecting that this would going
- to become this big, huge issue that calls into question
- our whole constitution.
- ELLEN YACKNIN: The case did transform itself,
- not by our desire, but by the city's continued denial
- of property tax exemption status to a case
- that involved constitutional dimensions
- and really affected--
- well, was significant throughout the United States.
- It really was.
- But I was aware of that when we started to take this case on.
- As a legal services lawyer, I'd been
- involved in many types of litigation that
- involve constitutional rights.
- And I had also done some other pro bono constitutional rights
- cases when I was in Buffalo.
- So I was pretty familiar with the implications
- of going forward with this kind of lawsuit.
- We made a decision, however, to stay in state court.
- We had to make some decisions.
- One, do we go to a state court?
- Do we go to federal court?
- We could have brought this as a federal lawsuit
- as well, because it did involve federal constitutional
- dimensions.
- But, again, because our analysis was
- that the constitutional grounds were still
- very shaky in the early 1990s, bringing cases
- involving homosexuality to the courts
- was extremely rare and extremely provocative.
- We made a decision to go to state court,
- primarily because we thought our strongest argument was
- on the state statutory property tax exemption grounds.
- But we also knew that in terms of getting public support,
- getting the community involved, getting people around New York
- state involved-- which we were successful at doing later when
- we brought in amicus to support us--
- that the constitutional grounds were also going
- to be extremely important.
- And for education reasons and awareness reasons.
- So there were political reasons why we went forward
- on the constitutional grounds, but there were also
- very important legal reasons for doing so.
- KEVIN INDOVINO: So this goes to court.
- ELLEN YACKNIN: Yes.
- KEVIN INDOVINO: Was there actually
- court appearances or was it just done all on paper?
- ELLEN YACKNIN: There were several court appearances.
- And there were also several delays.
- When a plaintiff-- the GAGV was the plaintiff in this case--
- files a lawsuit in court, one of the main strategies and tactics
- that defendants use is delay.
- And the defendants tried to delay
- this case for months, and months, and months,
- and were successful in doing so.
- We filed our lawsuit in August of 19--
- was it--?
- August of 1991.
- That's when we filed our lawsuit.
- The provisions that we filed a lawsuit under
- required a very fast decision.
- In order to avoid a fast decision from the court,
- the city argued that we did not have the right
- to go in to court under those procedural requirements
- in those provisions.
- So I agreed, for the sake of allowing us to go forward,
- to have the case converted to a different kind of proceeding;
- what's called simply an action, which I knew would
- result in tremendous delays.
- By allowing the case to go forward in that way,
- the city delayed for quite some time in filing its answer,
- because it didn't have to file its answer quite so speedily.
- But it also gave us the ability to do the investigation
- that I knew we had to do in order
- to make our constitutional discrimination claims.
- I knew that, in order to argue that we were being treated
- differently than any other organization,
- it had to be more than just telling the judge.
- We have this gut reaction that we're
- being treated differently.
- We had to investigate and get the evidence for that.
- So, between me and my co-counsel, Susan Silverstein,
- who was not connected with the GAGV, but was a friend of mine
- and also some of the volunteers we had,
- we made outreaches to community centers
- from around New York state; in particular, the New York City
- Gay and Lesbian Center, the Albany Gay and Lesbian Center,
- who we discovered did have property as well, both of which
- had gotten property tax exempt status.
- We also did a lot of investigations and outreaches
- to local organizations, such as the YWCA, Planned Parenthood,
- EBERO, 14621 Association, and other organizations
- to see if they owned property and had
- property tax exempt status.
- Then we had to get their information.
- We had to get permission from them
- to use their information in our documents.
- That was extremely time consuming.
- But we were able to use that time
- to get that kind of information.
- Lo and behold, that was just as we expected and suspected.
- Both the Albany Gay and Lesbian Community Center the New York
- City Gay and Lesbian Community Center
- had property tax exempt status.
- Many other local organizations in Rochester
- had property tax exempt status.
- We were the only organization of similar nature
- that did not have property tax exempt status.
- It did take a long time.
- The first time we appeared in court,
- after filing papers and the defendants
- got to file their papers, was, I believe, December 1, 1992.
- So it was quite a long time.
- KEVIN INDOVINO: So let's start that from there on.
- Talk to me about the first time appearing in court
- and get into the tone or the mood of those proceedings.
- ELLEN YACKNIN: The first time I appeared in court
- was December 1, 1992 on this case.
- That was the first time that Judge Siragusa
- was willing to listen to our various arguments.
- We had arranged for as many people as possible
- from the GAGV to come to oral argument.
- I believe the press was also there.
- Judge Siragusa was aware because of the nature
- of the papers, and the documents,
- and the arguments that were presented
- that this was probably going to be
- a well-attended, important local case.
- There were a lot of people in the audience at the time.
- Judge Siragusa was very well prepared on this case,
- which I appreciated.
- I always think it's a good thing when a judge is well prepared.
- Having read the papers we had filed
- a motion for summary judgment.
- We had also filed another motion to be
- able to amend our complaint to add
- those additional constitutional claims that I mentioned
- earlier, which were the First Amendment message
- argument, the First Amendment freedom of association
- arguments to our papers.
- The city had also filed a motion asking the judge
- to throw out our case.
- The judge asked a lot of questions.
- I answered the questions as best they could,
- made the arguments as strongly as I
- could on all of those issues.
- The city attorney, Susan Hauser, was there as well.
- She argued, very vigorously, that the city was not doing
- any kind of discrimination.
- How could we possibly make that argument
- that they were unfriendly to gays and lesbians?
- I believe, in the interim, the city
- had also passed a domestic partnership law or ordinance,
- or if it was not the domestic partnership ordinance,
- it may have been the nondiscrimination
- ordinance or resolution.
- KEVIN INDOVINO: Probably the nondiscrimination--
- ELLEN YACKNIN: OK.
- That was it.
- KEVIN INDOVINO: Domestic partnership benefits
- came in '94.
- ELLEN YACKNIN: That was later.
- OK.
- It was the nondiscrimination resolution.
- I'm not even sure it was an ordinance.
- But it was a nondiscrimination resolution
- saying that people who worked for the city of Rochester who
- are gay and lesbian should not be discriminated
- against for that reason.
- So how could the city possibly be discriminating
- against the GAGV?
- It was simply a decision based on applicable law.
- That was her argument.
- At that court appearance, Judge Siragusa decided to punt.
- What I mean by that is he decided
- not to rule on the merits of our arguments.
- Instead, he denied, without prejudice,
- our motion to amend our complaint.
- He denied, without prejudice, our motion
- to have a ruling on the merits of our complaint.
- He denied, without prejudice, the defendants' cross motion
- to throw out our case.
- And he said, "You know what?
- The GAGV checked the box educational.
- I don't really think that that's an appropriate reason
- to have denied the property tax exempt status.
- But if, Ms. Hauser, you're arguing now
- that there's confusion because they checked the wrong box
- or they should have checked more than one box,
- I'm going to give them an opportunity
- to file an application again that checks
- all the relevant boxes; educational, charitable,
- serving the moral interests of the community.
- And I'm going to order the City Assessor to issue an expedited
- decision."
- So we did all that.
- We submitted an expedited application
- within two or three days.
- The city issued a decision denying the GAGV's amended
- application within thirty days.
- There was no explanation whatsoever.
- At that point, we immediately went there to Judge Siragusa
- and said, "Judge, we did what you asked us to do.
- The city still continues to deny our property tax
- exempt application."
- We filed a motion for summary judgment once again.
- The city cross moved for a dismissal of our case
- immediately.
- And at that time, which was--
- hold on a second.
- The city denied the application the second time
- for property tax exemption December 31, 1992.
- We filed our renewed motions in court January 12, 1993.
- At the time, when the city filed its response to our papers,
- not only did they file the same arguments
- they had filed initially--
- arguing that we shouldn't be getting the tax exempt status--
- but they also asked for lots of documents
- from the GAGV for the very first time.
- And they asked to conduct the deposition
- of Paul Scheib, who was then the president of the GAGV.
- We were concerned that they were going on a fishing expedition,
- as well as trying to use a deposition for the purposes
- of intimidating us.
- So, by the time we went back into court
- for our oral argument on our renewed application,
- we asked for a protective order.
- We gave the city all of the financial information
- that they had requested, not because we felt
- they were entitled to it, but because we didn't
- see any reason not to do it.
- And we didn't want to have that become a legal issue.
- But we did ask the judge to deny the city the right
- to conduct a deposition of Paul Scheib at the time,
- because that would have delayed things inordinately.
- When we went to court again in February of 1993,
- at that point, again, the courtroom was packed.
- The press was there.
- We made our arguments again and the judge held in early April,
- in his written decision, that he was going to,
- one, deny the city's request to conduct
- a deposition of Paul Scheib.
- Two, he issued an extremely eloquent decision
- granting our motion for summary judgment on all of the grounds
- that we had asked.
- One, that the state statute itself required the city
- to give us property tax exempt status.
- And two, that its conduct and treating us differently
- than the state treated other organizations that
- were gay and lesbian in nature, and also the city's decision
- to treat us differently than other local organizations,
- deprived the GAGV of its right to equal protection
- under the law.
- In addition, the judge also said that we
- should be entitled to consider sanctions against the city
- for trying to conduct depositions and discovery so
- late, a year and a half later after we
- filed our initial lawsuit.
- And he scheduled a date for a hearing.
- Before that hearing on the issue of sanctions ever arose,
- the city filed its appeal to the Fourth Department--
- which is the intermediate appeals
- court of New York state--
- challenging Judge Siragusa's decision.
- At that point, realizing that this was going to now have
- significant implications and because Judge
- Siragusa's decision was so eloquent, so well-written--
- for the very first time in New York state,
- a judge had written a decision talking about the fact that
- the government had violated the constitutional rights of gays
- and lesbians--
- I began to do outreach to other organizations
- to support us in our legal efforts.
- As a result of our outreach, the American Civil Liberties Union
- filed an amicus brief in support of us on the appeal.
- Lambda Legal Defense and Education Fund
- filed an amicus brief in support of the GAGV on appeal.
- And, at that point, I became associated
- with the National Lawyers Guild, which
- I had been a member of, for purposes
- of allowing the National Lawyers Guild to get involved as well.
- So those three organizations were national organizations,
- who were involved with us on the appeal.
- KEVIN INDOVINO: So the city puts forth an appeal.
- The appeal is denied, right?
- ELLEN YACKNIN: The city filed its motion to appeal.
- KEVIN INDOVINO: Yeah.
- ELLEN YACKNIN: And once they filed a motion
- to appeal Judge Siragusa's decision,
- everything is on hold.
- Because, under New York state law,
- when a judge issues the decision against a governmental agency--
- such as the City Assessor--
- then if the city or the governmental agency
- files an appeal from that decision,
- everything is on hold until the appeals court
- can render its decision.
- That took another several months before that process
- was completed.
- That process involved the most work.
- Because the Fourth Department, like the other appeals courts
- in New York state, had very specific requirements
- for filing an appeal.
- We had to file a record.
- We had to file our briefs.
- We also had to make sure that all the documents that we
- had submitted to Judge Siragusa were properly in the record.
- The good news, from our point of view,
- is that as much work as an appeal process involves,
- it is far more work for the person doing the appeal.
- And in this case, it was the city
- who had to do all the harder work to prepare
- the case for the appeal.
- We just had to respond.
- Once we saw their arguments, we were
- able to write a response brief.
- The-- let's see here--
- oral argument on-- hang on a second.
- The city filed its appeal--
- its request to appeal on May 11, 1993.
- Oral argument was not heard in the Fourth Department
- until November 30, 1993.
- KEVIN INDOVINO: Well that.
- Hang on.
- ELLEN YACKNIN: OK.
- KEVIN INDOVINO: OK.
- ELLEN YACKNIN: We'll do that again.
- KEVIN INDOVINO: Let's pick it up from there.
- ELLEN YACKNIN: Yeah.
- KEVIN INDOVINO: When the appeal was filed.
- ELLEN YACKNIN: Yeah.
- The city filed its notice of appeal in May, 1993.
- They then had to file their briefs.
- We had to file response briefs.
- All the documents had to be filed.
- The Fourth Department finally scheduled oral argument
- for November 30, 1993.
- That court, being an intermediate appeals court,
- is a court comprised of five judges.
- The Fourth Department, which governs, Buffalo, Rochester,
- and Syracuse, sits in Rochester.
- So, again, the courtroom was packed
- with supporters of the GAGV.
- The press was there as well.
- That argument was, in many respects,
- a disappointment for me.
- There were five judges on the panel.
- I did not get a single question.
- Actually, I take that back.
- I got one question.
- Somebody just asked me whether or not the discrimination
- issues involve issues of fact.
- And I said, yes, they did but they were undisputed facts.
- It was a puzzling question, because it was irrelevant as
- to whether our claims were valid or not.
- The city's attorney, Susan Hauser,
- did not get a single question asked of her.
- Normally, the Fourth Department is
- known to be very involved, very active--
- what's called a very hot bench.
- That day-- November 30, 1983--
- it was an ice cold, frigid bench.
- So because they didn't ask hardly any questions,
- other than that one question of me,
- we walked out of their courtroom very unsure,
- not having a sense at all as to where
- they were going to fall out.
- I was pretty confident of the strength
- of our statutory argument, the argument that, under the law,
- we were entitled to tax exempt status.
- But I had no idea where they were
- going to come out in terms of the constitutional arguments.
- The court finally came out with its decision
- on February 4, 1994, three years after this whole process
- had begun; from the time that the GAGV had filed
- its initial requests for tax exempt status to the time
- that the Fourth Department finally
- came out with its decision.
- The Fourth Department's decision was great,
- but not nearly as wonderful as Judge Syracuse's decision.
- In the Fourth Department's decision, which was unanimous,
- the Fourth Department held that just because the GAGV
- was a composite of different kinds of activities
- that would be entitled to tax exempt status--
- educational, charitable, helping the moral viewpoints
- of its constituency--
- did not mean that the city had the authority to deprive us
- of property tax exempt status.
- The court held that, under the words of the statute itself,
- we were entitled to property tax exempt status.
- So the outcome is good.
- We got what we were asking for, which
- is property tax exempt status.
- The court, however, found in a single sentence,
- without any analysis at all--
- the court said we find that the GAGV was not deprived
- of its constitutional rights.
- There was no analysis, no discussion.
- In some ways that could be a good thing, because the court
- did not go so far as it might have gone by saying gays
- and lesbians in York state are not
- entitled to any constitutional protections.
- Therefore, we find that Judge Siragusa's decision
- finding that their rights were violated is wrong.
- It didn't go that far.
- But on the other hand, it basically
- said that Judge Siragusa's finding
- that our constitutional rights were violated
- was wrong, period.
- The next month, we negotiated with the city.
- And we argued that all the property tax
- money that the GAGV had been paying all along
- should be refunded.
- We did have some arguments about how much money that was.
- But in the end we settled for about six thousand
- five hundred dollars that the GAGV
- was able to get a refund of.
- One more thing here.
- KEVIN INDOVINO: OK.
- ELLEN YACKNIN: Between the time between Judge Siragusa's
- decision and the final decision from the Fourth Department,
- we had the most extensive negotiation sessions
- with the city's lawyers at that time.
- The city corporate counsel was a man named Lewis Cash.
- Susan Hauser, who did most of the arguing in court,
- was an assistant corporate counsel.
- We negotiated most extensively with Lewis Cash.
- We had three meetings with him.
- There were other people involved in the meetings--
- Tim Mains-- other people involved in the meetings.
- But in the end, we cannot reach a settlement.
- Mr. Cash's primary bottom line was
- to say that the GAGV should accept only a partial tax
- exemption.
- In other words, something like he
- was throwing out numbers like 60 percent or 70 percent.
- And what he wanted to do was to argue
- how much of a tax exempt percentage
- the GAGV should have.
- But that was our bottom line as well.
- We said, we're willing to discuss attorney's fees.
- We can give up attorneys fees.
- We can give up the amount of retroactive tax refunds
- the GAGV could get.
- We could even discuss when the tax exempt status should begin.
- But our bottom line was we should
- be treated no differently than any other agency.
- And we're not going to settle for less than 100 percent
- tax exempt status.
- And because our bottom lines did not overlap,
- the discussions went nowhere.
- So the city took its chance in court, the GAGV prevailed,
- and we're happy to say that that decision has been cited
- by other courts throughout New York state
- as well since that decision came out.
- KEVIN INDOVINO: I want to follow up on that.
- Just a quick thought on--
- when we look at just the overall history of gays and lesbians
- here in Rochester and all of the things
- that have gone on over the generations,
- how significant is this case to that history in what it
- set for future precedence?
- ELLEN YACKNIN: This case, I think,
- was extremely important for at least a couple of reasons.
- One, it was a very good focus of attention
- of the LGBT community, and at least the GAGV, community
- for about three years.
- And it was a good point of public attention.
- The public was focused on gay and lesbian issues
- during the times that the case went to court, during the times
- that the decisions came out.
- And it helped to educate the community
- about the gay and lesbian community.
- Very often in community organizing,
- a combination of public education,
- railing in the streets, and court activity
- combine to help raise the level of awareness
- and the level of education.
- So I think it was important in that respect.
- With respect to involving organizations
- of a national level, it was a very important case as well.
- It was important for those decisions.
- The ACLU had a gay and lesbian project going.
- They're the ones who helped to write their amicus brief.
- Lambda Legal Defense and Education Fund
- also found this issue extremely important in rallying
- its supporters around the issues that were going on in Rochester
- with respect to the GAGV.
- With respect to Judge Siragusa's decision
- in our arguments on constitutional rights,
- it was a landmark decision.
- Very much a landmark decision.
- It was the first decision in New York state, one
- of the first in the country, that was forced to deal with
- whether or not gays and lesbians were being discriminated
- against by a governmental agency.
- And we were absolutely ecstatic and thrilled
- when Judge Siragusa's decision came out and how
- that, yes, the GAGV was being treated differently
- because we were gay and lesbian organization.
- That part of his decision was thrown out.
- But it still was extremely important in the history
- of gays and lesbians around the country,
- and was cited in other arguments in other courts.
- KEVIN INDOVINO: I just want to explore something here.
- You may have an answer on it, you may not.
- When Susan Hauser was here, when you first
- appeared at Judge Siragusa's court,
- she was arguing that, no, we don't discriminate
- against gays and lesbians.
- We just passed a nondiscrimination act--
- dadadada--
- my little suspicious mind went off
- and said, well, it wasn't the mayor's office or certainly not
- the assessor's office that passed the nondiscrimination
- act.
- It was city councilmen that passed that.
- Yet, this case seems to me like it was coming more
- from the mayor's office.
- ELLEN YACKNIN: Can you hold on one second?
- I'm not sure if it was an ordinance or a resolution.
- I had a reference in a letter to it.
- Let me just go look.
- Because if it was a resolution-- well, if it was a resolution,
- I guess that was city council also.
- KEVIN INDOVINO: Yeah.
- ELLEN YACKNIN: Let me just see if they can find it.
- KEVIN INDOVINO: I mean, if you don't feel comfortable speaking
- to it, that's fine.
- It's just something--
- ELLEN YACKNIN: Yeah.
- OK.
- KEVIN INDOVINO: It's just something
- that kind of went off in my head when you were talking about it.
- It was like, well, you know, it was a really weak argument.
- Because she's really representing
- the mayor's office--
- ELLEN YACKNIN: Oh, OK.
- KEVIN INDOVINO: --and the assessor's office.
- She's not really representing city council.
- But she was using something the city council did to try
- and bolster her position.
- ELLEN YACKNIN: Give me one minute
- here, because I have an answer here.
- All right.
- It was extremely insidious and disingenuous when Susan Hauser
- argued to Judge Siragusa that the city of Rochester cannot
- possibly be discriminating against the GAGV,
- because how could it?
- City council had just passed its ordinance or resolution--
- some legal pronouncement-- that gay and lesbian employees
- of the city should not be discriminated against.
- The reason that was so disingenuous is because--
- a couple of reasons.
- One, the city council had passed that, not the city.
- But this was a city decision.
- So it was an executive decision, not city council's decision
- to deny the GAGV property tax exempt status.
- Frankly, I never talked at all to Mayor Ryan.
- Never had any communications from him.
- Never knew of whether or not the decision was coming directly
- from his office.
- But I will say this.
- I am positive that he was extremely
- aware of what his corporate counsel was saying to us.
- He was extremely aware of what positions his corporate counsel
- was taking before the court.
- And he was extremely aware that after Judge Siragusa
- issued his decision decisions about appealing
- came from his office.
- It's disingenuous in another respect as well.
- But it was extremely important for her, Susan Hauser,
- to make that argument for the judge.
- If one is being charged or there are allegations
- of discrimination, it is very difficult
- to prove discrimination by another entity--
- another organization-- particularly an organization
- that claims to have a nondiscrimination policy.
- When decisions are based on discrimination,
- most governmental agencies, even in the early 1990s,
- said at the time that the decision
- was based on something else.
- Because it is easier to argue that they're just
- following a law.
- It's not based on discrimination.
- Nobody will ever admit discrimination.
- The only way to prove discrimination
- is to go out and do the hard digging that we did to find out
- here are concrete facts that show conclusively
- that the GAGV was being treated differently
- than other agencies.
- But the city would never admit to that
- and was never going to admit to that.
- And to argue that they treat gays and lesbians well
- is just one argument for showing they don't discriminate.
- KEVIN INDOVINO: It's interesting, too,
- how things can quickly turn on a dime.
- Because we had this case, which was argued as a discrimination
- case against the GAGV by city the city of Rochester.
- You know, this case went right up to 1994.
- But then in 1994, we have a new mayor.
- And I think it was in his first year
- in '94 he passed the domestic partnership
- benefits for city employees.
- ELLEN YACKNIN: You raised the fact that in 1993 we
- had one mayor, Tom Ryan.
- But in 1994, we had Bill Johnson, who
- had just been elected mayor.
- Interestingly, between the time that the city
- filed its appeal, May 1993, we argued the case November 30.
- That was the after election day.
- Bill Johnson had just been elected mayor
- three weeks earlier.
- We knew based on the Fourth Department's timetable
- that the decision would probably not be coming out
- until early February.
- We made a decision to contact Bill Johnson directly.
- And we made a decision, because at some public event,
- Bill Johnson was asked pretty directly, how
- do you feel about the city's decision to deny property
- tax exempt status to the GAGV?
- And this was after he'd been elected mayor.
- And he said publicly-- in a public statement--
- that he disagreed with that decision.
- We were thrilled.
- And, of course, because you never
- know what the outcome of a decision is going to be--
- we could have lost everything.
- We could have won even more in the Fourth Department
- than we ended up doing--
- we decided to take Bill Johnson--
- Mayor-elect Johnson-- up at his apparent offer to us
- to contact him.
- And we did, through Tim Mains, through Gary Muldoon,
- who was also a city council member at the time.
- And I also wrote Mayor-elect Johnson a letter
- myself explaining the procedural history,
- reminding him of the statements that he had just made publicly
- a couple of weeks earlier, and asking if he would talk to us
- and meet with us to try to resolve this issue.
- He never responded.
- I don't fault him for that.
- He was in the middle of trying to organize his own cabinet,
- his own government.
- He was about to take office in January.
- The decision came out in early February.
- Maybe if we had had more time, maybe Mayor Johnson
- would have been more amenable to talking to us.
- But we did definitely follow up with him
- to see if he would be willing to step in at the time.
- KEVIN INDOVINO: OK.
- We'll leave it at that.
- ELLEN YACKNIN: All right.
- Great.
- All right.
- Great.
- KEVIN INDOVINO: Great information.
- Thank you.
- ELLEN YACKNIN: Yeah.
- You're welcome.
- KEVIN INDOVINO: Don't take off until we
- get that microphone off of you.
- ELLEN YACKNIN: Oh, yeah.
- Good point.
- You obviously did your homework though.
- You were very aware of--