Petitioner, Mayank V. Munsiff ("Munsiff"), commenced this proceeding under Article 78 of the Civil Practice Law and Rules ("CPLR"), to review a decision of Respondent, Office of Court Administration ("OCA"), which denied Munsiff's application for a Secure Pass to the court buildings as an attorney. Munsiff seeks an order from this Court requiring it to order OCA to grant such application.

Responding to security concerns following the September 11, 2001 terrorist attack on the World Trade Center, OCA, as the administrator of the New York State Unified Court System, adopted new procedures for access to court buildings. Among these procedures was a new identification card, with enhanced security features, for use by attorneys to gain access to such buildings. While attorneys with the old identification cards could bypass the magnetometers, and generally, the search procedures which had been in effect prior to the terrorist attack, only attorneys with the newer "Secure Pass" could do so under the new procedures; attorneys without a Secure Pass would only be able to gain access to court buildings through the same magnetometers, search procedures, lines and delays to which the public was subject. While attorneys had to apply for an appropriate identification card both before and after the terrorist attack, OCA added a new requirement for the Secure Card, that the applicant pass a background search. If no criminal history was revealed by the search, a Secure Pass was issued. If any criminal history was found (including convictions under the New York Vehicle and Traffic Law), the application was reviewed by the Chief Administrative Judge. If the Judge found the applicant's criminal record limited to violations or convictions for minor offenses that "did not reflect a propensity for violence or dishonesty," a Secure Pass was issued. If not, the application was referred to the OCA inspector general for further investigation and if, on further investigation, the underlying facts of a conviction "reflected violence or dishonesty, the secure pass application was denied." Munsiff, a member of the bar, had a background of convictions for a number of serious crimes involving violence and dishonesty, and after following the procedures set forth above, OCA denied his application for a Secure Pass. [*2]

Munsiff first sought administrative review of this denial, on the grounds, effectively, that as a member of the New York bar, a Secure Pass had to be issued to him. After review by OCA and its Chief of Public Safety, on August 5, 2003, Munsiff was advised that the application was still denied. Munsiff applied for reconsideration of this denial, submitting additional material. OCA did not respond to this application.

Munsiff admitted that he committed the crimes and offenses which OCA had determined were the basis of its action to deny his application, and Munsiff makes no facial challenge to the standards on which the determination was made. Munsiff, instead, asserts that certain provisions of the Americans with Disabilities Act, 42 USCA §§12101-12213 (the "ADA"), and the New York State Human Rights Law, Executive Law Article 15, ("HRL") override OCA's security rules with respect to him and that accordingly, he is entitled to a Secure Pass.

OCA concedes that the ADA, if applicable, binds OCA,^[FN1] but denies that the ADA supports Munsiff's claim. Similarly, to the extent that the OCA procedures in Munsiff's case violate the HRL, a New York statute, the HRL, will trump OCA rules and regulations.

FACTS

Whether the HRL and the ADA apply depend on the facts of this dispute, as well as Munsiff's personal status and personal history as a possible disabled person under applicable law. Because OCA has not challenged the facts, as recited by Munsiff, this Court is bound by Munsiff's recitation of such facts in his petition in its review of OCA's determination under CPLR Article 78. Such facts, excluding the unpleasant details of Munsiff's illness and behavior during his illness not relevant for this proceeding, are that Munsiff, from between 1984 and 1992, suffered from untreated paranoid schizophrenia. During such period, he committed the crimes in question. In 1992, he was diagnosed and successfully treated for that condition. Munsiff committed no crimes before such period and none following his diagnosis and treatment. Following such treatment, Munsiff has been assiduous in maintaining his medications and following his medical regimen. He has been admitted to the bar and has since successfully functioned as an attorney. To the extent he maintains his medication and counseling regimen, Munsiff presents no risk of improper behavior different than attorneys who have never had run-ins with the law. Munsiff's assertion, supported by his physicians, that he will not suffer a relapse, is unchallenged by OCA.

A significant number of attorneys with criminal records have had their applications for a Secure Pass referred to the Chief Administrative Judge. While most have eventually received a Secure Pass following the OCA review process set forth above, approximately three dozen attorney applicants (of which Munsiff is one) have been turned down for a Secure Pass. No one whose criminal record was as extensive as Munsiff has been granted a pass.

No attorney is required to apply for a Secure Pass; there is no restriction on an attorney who has not applied, has been denied a Secure Pass, or had left his or her pass home from gaining access to court buildings, other than having to wait in the public line, which is often lengthy, and being subjected to passing through a magnetometer and possibly having his or her [*3]bags searched.

The HRL has developed by accretion. Article 15 was, for example, earlier titled "State Commission Against Discrimination," and the law set forth in such Article was known as the Law Against Discrimination. In 1966, the name of the Commission was changed to the State Commission for Human Rights. (Laws 1962, ch.165). In 1969, the name of the Article and the name of the Law was changed to its present form, viz: the Human Rights Law (Laws 1969, ch. 359). In 1951, for example, when the current Executive Law was recodified (Laws 1961, ch. 800), the law applied only to discrimination in employment and only addressed discrimination by reason of "race, creed, color or national origin." By 1969, the areas of discrimination covered by the HRL had been extended to certain aspects of public accommodation, resort or amusement, to certain housing accommodations and, in 1969, coverage was extended to educational institutions and public services. Even as late as 1970, the litany of race, creed, color and natural origin were the sole proscribed discriminations.

Over the years, through continuing legislation, new areas of behavior have been proscribed by the HRL such as "blockbusting" and extension of credit (Laws 1973, ch. 656) and the definition of discrimination have been extended inter alia, to discrimination by reason of sex (Laws 1971, ch. 1194), discrimination by reason of disability (Laws 1974, ch. 988), and discrimination by reason of marital status (Laws 1975, ch. 803). The HRL is, however, not the complete repository of New York anti-discrimination laws, which are sometimes found elsewhere. For example, the HRL, as presently written, does not include as an "unlawful discriminatory practice" (which practices are proscribed by the HRL) discrimination in public facilities, other than in renting publicly aided housing, fire departments in their membership activities (Executive Law §296(9)), in the discrimination against persons in public employment by reason of their holy days or Sabbath observance. (Executive Law §296(10)). Many other rights usually considered part of New York statutory constellation of personal rights are set forth in the New York Civil Rights Law ("CRL"). For example, provisions relating to discrimination against persons using guide dogs are set forth in CRL Art. 4-B, and discrimination in the approval of the transfer of cooperative apartment shares are dealt with in CRL §19-a.

This double source of law is explainable by the structure of New York's enforcement mechanisms and a myriad of individual legislative determinations as to whether certain rights should be enforceable administratively (as are "unlawful discriminatory practices" as defined in the HRL ^[FN2]) or whether the courts are the appropriate forum (as are the rights set forth in the CRL). These legislative choices are the products of compromises made between competing interests and concerns when the state has moved to address changing views of society's balance restricting personal choices against perceived injustices. The continued refinement by legislation of provisions of the HRL and continued controversy over details is illustrative of this process.

One tension between the legislative decision to include proscriptions against [*4]discrimination in the HRL as distinct from the CRL has been the mode of enforcement, between private and governmental action. While it is clearly understood that, once a legislative policy relating to discrimination is set, government (especially) must comply, it is not equally clear that an executive administrative agency such as the State Division for Human Rights ("SDHR") is the appropriate body to define or enforce these rules against other governmental bodies especially including those not in the executive branch of government, such as OCA. In fact, through the definition of "person" which excludes governmental agencies, most governmental activities are excluded from HRL coverage, and therefore enforcement by the SDHR. The express inclusion of certain governmental bodies where the legislature had determined to extend the reach of the HRL (See, eg, Executive Law §296((9) (fire department or fire company) Executive Law §296(16) (adds language "including the state and any political sub-division thereof in connection with the case of certain criminal records)), reinforces this structure and approach.

Another example of the piecemeal approach of the HRL is that although discrimination by reason of disability is recognized as an "unlawful discriminatory practice" only for certain purposes, the "opportunity to obtain employment without discrimination," "the opportunity to obtain education, the use of places of public accommodation and the ownership, use and occupancy of housing accommodations and commercial spaces," which are made a civil right by Executive Law §291, does not specify discrimination by reason of disability in its litany of proscribed discrimination.

Accordingly, HRL provides no basis for any claim by Munsiff that OCA has violated any right Munsiff may have under the HRL.^[FN3] Accordingly, Munsiff's petition is denied to the extent that it is based on claims under the HRL.

Federal law, through the ADA, follows a different approach as to its scope and coverage of proscription of discrimination by reason of disability. First, the ADA, by its own terms, asserts the congressional intent to extend coterminously to the ends of Federal power ^[FN4] and to provide a "clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C.A. §12110(b)(1). Thus, as OCA does not in this [*5]proceeding challenge the scope of Federal power, this Court must determine only whether the ADA, by its terms, applies to OCA's action in denying Munsiff a Secure Pass. The relevant ADA provision here, 42 U.S.C.A. §12132, makes it clear that: "Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity."

There is little question that under the ADA, the New York State Court system is a public entity.^[FN5] Accordingly, the next question is whether the Secure Card is a "service, program or activity." Under cases which have construed "service, program or activity," the Secure Pass is clearly a "service, program or activity. See eg. Innovative Health Systems, Inc. v. City of White Plains, 117 F3d 37 (2d Cir. 1997) (citing, with approval, congressional legislative history of the ADA that such language was intended to include all activities of State and local governments so as to prohibit them from discriminating against a covered individual) and Pennsylvania Dept of Corrections v. Yeskey, 524 US 206 (1998) (Per Scalia, J.).

In short, the tocsin of ADA, sounded loud and clear, is that it is national policy that state and local government should not be a party to a discrimination against a "qualified individual" with a disability "by reason of" such individuals' "disability." That leaves three defined terms to consider in this case to determine whether the ADA is applicable so as to support Munsiff's petition: viz: "qualified individual," "by reason of" and "disability."

For that portion of the ADA which relates to discrimination in the services program or activities of a public entity, a "qualified individual" with a disability is defined as "a person with a disability who...meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." 42 USCA §12131(2). Here, the "essential eligibility requirement" for a pass is that the applicant (a) be a lawyer and (b) not pose a threat, by reason of his criminal past, to the security of a court house. While the second of these two requirements is not expressly spelled out, there can be no doubt that OCA's restrictions on the issuance of a Secure Pass is based on this security issue. The history of the change to the Secure Pass from the prior attorney pass, triggered by the terror attack of September 11, 2001, leads to no other conclusion. Thus, Munsiff's right to a Secure Pass depends on two tests, whether he has a disability and whether he meets the essential eligibility requirements.

The record before this Court shows Munsiff to be clearly "disabled" under the ADA definition of disability. Absent his ongoing treatment and medication, Munsiff would be unable to work. It is not an answer that Munsiff can now work as the definition of disability also includes having "a record of such impairment." 42 USCA §12102(2)(B). Munsiff's history of bizarre behavior prior to treatment, his response to treatment, the psychological evidence presented by Munsiff and the lack of any counter evidence presented by OCA, drives this Court to no other conclusion.

The next step in the analysis relates to whether the differential treatment of Munsiff is "by reason of" his disability or for some other reason. [*6]

Life is full of differential treatment of individuals for various reasons. Some of these differential treatments are legally permissible and some are not, but to be permissible as a matter of law, there must be a law which makes the distinctions. Classification of people based on their history of criminal convictions is a differentiation often used in our society, and is often embedded in specific laws. Many legal privileges are denied to convicted felons under New York law. Where an appropriate delegation under statute may authorize an agency of government to consider criminal history as a basis for making distinctions, such history may also be used for distinguishing treatment. Munsiff does not challenge the power of the State or OCA to enact by law or authorized regulation the Secure Pass program as a general matter, but asserts that the ADA, to the extent applicable in this case, can trump these otherwise legitimate classifications. Accordingly, this case, he asserts, and this Court concurs, has nothing to do with the power of OCA to establish or enforce rules for the issuance of a Secure Pass or to deny a Secure Pass to an applicant by reason of that applicant's prior criminal record, absent the applicability of the ADA to the situation and that applicant.

Under the record before this Court and the procedures heretofore had in this matter, the operable facts before this Court are that Munsiff has a criminal record solely by reason of his disability. Thus, the test "by reason of" is satisfied. The final test, that of meeting the "essential eligibility requirement" is also satisfied by the record which shows that Munsiff will not in the future by reason of his disability, pose a threat to the security of a Courthouse.

Accordingly, Munsiff has established that the decision of OCA in denying him a Secure Pass is, as a matter of law, impermissible under the ADA. His request for an order setting aside the decision is therefore granted and OCA is ordered to grant Munsiff's application for a Secure Pass within fifteen days of the service upon OCA of notice of entry of this Decision and Order.

In issuing this Decision and Order, this Court is not unmindful of the need for the "eternal vigilance which is the price of liberty,"^[FN6] and the risks to our society from terrorists and the greater threat that persons who have transgressed society's laws pose as possible participants in future improper or dangerous acts, nor is the Court unmindful of potential uncertainties in the prediction of future activity or adherence to a medical regimen by persons with severe mental disabilities who have, prior to treatment engaged in unacceptable behavior. Further, the Court recognizes that unacceptable behavior may arise out of a combination of a mental disability and a moral failing of an individual to conform to society's standards embodied in the Penal Law. Our law generally recognizes that transgressions caused by such a combination may be punished by penal sanctions. The criminal insanity defense, for example, is narrowly drawn to distinguish between a mixed cause and a pure cause in considering whether a crime has been committed. Because this petition is before this Court, upon the undisputed facts submitted by the petitioner, this Court's decision is based solely on the conclusion that Munsiff's behavior which resulted in his criminal convictions was caused solely by his mental disability and did not result, even in part, from a moral lapse. Thus, the question as to how the ADA would apply to a case of mixed causes has not been answered in this proceeding.

Further, the factual predicate of this decision is, as stated above, based on Munsiff's statement of the facts, which were not challenged by OCA. Thus, this decision is made under the [*7]rubric set forth in CPLR §7803(3), whether the determination to deny Munsiff his Secure Pass "was affected by an error of law." Had OCA held a fact finding hearing and made a determination based thereon, this Court would have been bound to review such facts under the usual procedure for review of a factual finding under CPLR Article 78, before reaching the applicability of the ADA to such facts.

This is the Order and Decision of the Court.

DATED:JUNE 28, 2004

NEW YORK, NEW YORK

E N T E R :

Hon. Lewis Bart Stone

Justice of the Supreme Court