http://www.brooklyneagle.com/archive/category.php?category_id=4&id=8733

Roper Can Re-Plead Some Claims
By Charles Sweeney
Brooklyn Daily Eagle

CENTRE STREET — When Sandra Roper ran for Kings County District Attorney against incumbent Charles J. Hynes in the 2001 Democratic primary she ended up losing more than just an election — she lost her job and almost lost her freedom, after a criminal prosecution she believes was designed to destroy her.
Refusing to take her losses sitting down, Roper’s attorney filed an ambitious civil suit just before the 2005 Democratic primary for district attorney, a race Hynes won by a slim margin.

On top of naming Hynes and the Brooklyn District Attorney’s Office in her civil lawsuit, Roper’s attorney Ezra Glaser named several state, county and city judicial entities as defendants in the comprehensive legal action — a suit that seems to be gasping for air after a federal judge’s decision last week.

The suit brought by Glaser on Roper’s behalf was stripped of nearly all its teeth last week, when a federal judge dismissed almost every claim — leaving a single claim of a 14th Amendment violation against the judge who fired her.

The judge in the case, William H. Pauley III of the U.S. District Court, Southern District, wrote, “In sum, all of Roper’s claims against State defendants, the City Defendants and the Individual Defendants are dismissed — except her equal protection claim against Judge Carey.”

Roper’s equal protection claim revolves around her allegation that she was fired solely because Hynes had interfered with Roper’s employer, Deputy Administrative Judge Joan Carey — urging her to fire Roper from her position as court attorney.

The remaining claims filed by Roper were dismissed for one of two reasons: either immunity protected the defendants from federal legal action, or the statute of limitations had run out.

Roper’s attorney Glaser took issue with the way Pauley calculated time in reaching his decision on the statute of limitations. He said the time should have been calculated from the end of the criminal proceeding, in early 2006, not from the time of Hynes’ alleged interference in 2003.

“That’s reversible error,” Glaser said.

He was also confident that Pauley’s decision left room for him to re-plead some of the claims in the suit. “The decision leaves an opportunity to rewrite our claims. Pauley’s decision was a road map for us to file a successful claim based on his writing.”

Roper’s Reaction
Roper reacted to the decision as if she’d won.

In a brief interview with the Eagle on Friday, Roper said she was pleased with the overall tone of Pauley’s decision, despite his dismissal of so many claims.

She called the decision “a vindication.”

Asked why, Roper said, “Because all along, it appeared to people that the allegations were made out of whole cloth.”

After listening to the judge during oral arguments, then reading the decision, Roper feels Pauley saw the connection she was trying to make between the timing of Hynes’ prosecution and the election. “During oral arguments, the judge did indeed see that there was a nexus between where the criminal investigation started and my run against Hynes in 2001,” Roper said.

Regarding the dismissal of some claims based on immunity, Roper said it was a legal argument that had little to do with the actual allegations against Hynes.

“It’s very technical,” Roper said. “There are two kinds of immunity, and under the circumstances, it appears that the judge went by what I think is an open interpretation, and he resolved the immunity issue in Hynes’ favor.”

Pauley dismissed most of the claims “without leave to re-plead,” meaning Roper cannot try again with another claim based on different reasoning.

However, Pauley’s decision allows Roper the chance to re-plead some of the claims. For instance, Pauley wrote, “Those claims filed against D.A. Hynes, Judge Kaye, Judge Lippman and Judge Carey” were claims based on actions allegedly taken by individuals outside the scope of their duties as professionals.

The decision gave Roper’s attorney an option to resubmit a claim on the grounds that her civil rights were violated by Hynes’ alleged conversations with Judge Carey about Roper’s employment, conversations that had nothing to do with Hynes’ actions as a prosecutor.

One attorney who worked as an advisor on Roper’s campaign explained, “When you work for a Supreme Court judge, it’s up to that judge to hire and fire you. When you work for a Civil Court judge, it’s the Office of Court Administration that pulls all the strings.”

Glaser said he will be pursuing all those claims that can be resubmitted.

Roper’s position as a court attorney wasn’t a regular civil service job, like many state court positions are. As an “at will” employee, she lacked the protections civil servants enjoy based on safeguards written into union contracts.

Roper did not belong to a union. Her status as an “at will” employee was at the root of Pauley’s reasoning in dismissing Roper’s claim against the Office of Court Administration.

Roper alleged that Hynes caused her to be fired in 2003, shortly after her indictment. Pauley’s decision states that Hynes’ action in contacting Deputy Chief Administrative Judge Joan Carey, allegedly urging her to fire Roper, was actionable. This finding gives Roper’s attorney leave to re-plead that claim against Hynes as an individual acting outside his position as a prosecutor.

According to one of Roper’s former political advisors, her criminal prosecution resulted from her challenge to Hynes’ incumbency. “I don’t think anyone believes she would have been prosecuted if she hadn’t challenged Hynes in 2001.”

He may sound like a disgruntled second-place finisher, but the argument may resonate with Roper’s new federal claims. Until then, her wait continues.

http://www.nysun.com/article/40647

http://www.nysun.com/article/29154