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,

Video Interview, Ellen Yacknin, September 6, 2013

In collections