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--