New York State Court of Appeals Issues a Long-Awaited Decision in Kane/Keil Cases For Religious Freedom

The Fight For Religious Liberty

November 13, 2024 Betsy Combier ADVOCATZ, ADVOCATZ Op-Ed 0

The COA DECISION-Kane-Keil ends this case for all Plaintiffs except two from this Group. There is no class action.

Picture at left: Nationally known religious rights Attorney John Bursch, February 8, 2023 on the steps of the 2nd Circuit after oral argument.

Here is the Order in the District Court: Kane-Keil Memorandum and Order

Plaintiffs Natalie Solon and Heather Clarke will proceed with their requests for compensation, but all the others are dismissed. The Plaintiffs may try to petition the United States Supreme Court for Certiorari.

From Google: Certiorari is a legal process that allows a higher court to review a lower court’s decision or a government agency’s action. The term comes from a writ issued by an English court to order a lower court to send its records to the higher court for review. Certiorari is, therefore, a corrective remedy that ensures a lower authority acted within its legal authority. It’s most commonly associated with the U.S. Supreme Court, which uses it to decide which cases to hear. Certiorari is used to quash a “determinative” decision, and is unlikely to be available if the decision maker was only answering questions. 

In the United States, the Supreme Court uses certiorari to review cases that could have national significance or that could help reconcile conflicting decisions in the federal courts. The Supreme Court usually only accepts 100–150 cases out of the more than 7,000 it’s asked to review each year. For the Supreme Court to hear a case, four of its nine justices must vote to accept it. 
The process for seeking certiorari is as follows:
  1. The losing party in a lower court case files a petition for certiorari, also known as a “cert petition”.
  2. The respondent, or the party that won in the lower court, has 30 days to file a brief opposing the petition.
  3. The justices usually consider the petition, the respondent’s brief, and the petitioner’s reply brief about a month after the respondent’s brief is submitted.

The Supreme Court will grant review and hear oral argument if at least four justices vote to do so. 

Then there is also mandamus: A command to an inferior authority to perform a public duty. It’s generally used in cases involving ministerial duties, which are non-discretionary obligations. For example, a writ of mandamus can be used to force a governmental officer to pay a pension, free a prisoner, or allow a minority shareholder to inspect corporate records. 
Both certiorari and mandamus have special prerequisites, but two common ones are:
  • There must be no adequate remedy available to the petitioner.
  • The petitioner must be aggrieved and have locus standi in the petition.
Certiorari may be issued ancillary to a writ of mandamus or writ of prohibition.
I have not had time to read the Decision fully, but my first reading of it tells me that the COA Judges did not believe that the Kane/Keil Attorneys supported their claims sufficiently.  More of my opinions will be filed soon.
I urge everyone to read the websites below, just to see what New York City and State does not want to support:
Let me just say that I am hugely disappointed with this Decision, but there were flaws that I saw from my perception of the New York Courts, namely that when New York City makes a decision to do something even if it is against the law, the Courts will agree. The unfairness is, I believe, rampant throughout the State and Federal court Systems in this State. Politics matters, not rights.
I believe one of the rights that get in the way of terminating someone, religious rights, have no value in New York City because the goal is to remove the employee from payroll no matter what race, religion, gender, they have or hold.
For 30 years I have assisted union members fight New York City public employers to retain their jobs. As an investigative reporter, the first thing I saw was the omission of a full, fair, and thorough investigation by City so-called “investigators”. If a false claim is made against an employee, the next step is to call in the “investigators” who prove the false claim. These so-called investigators are not looking into what happened. Instead, they look for ways to support a complaint that was never valid so that the accused can be terminated.
I reported what I saw to the agency involved, and suffered the consequences.
I have four children, three of whom started in private school, but then we put them all in the NYC Department of Education. When I started investigating the investigators and people who I believed were forcing out teachers for no reason, “they” – the New York City Department of Education – attacked me. They wanted me to shut up. I did not, and started my blog NYC Rubber Room Reporter on the NYC DOE, the rubber rooms, and 3020-a arbitration.
Then, the NYC DOE started attacking my four children: teachers made fun of them in class (2 went to Stuyvesant HS, 1 was at La Guardia HS For the Performing Arts, and 1 at NEST+M), but told me in secret that they were forced to do that by the administration and supervisors. Without their telling me the backstory, I don’t think I or my kids would have survived as well as we did. Thank god all four are out of college and working, and 2 are married. They are ok. However, the false attacks by the NYC DOE made it a bad time. I was not prepared. But now I am, and I will stand up to attacks because someone doesn’t like what I say. I must pay my success forward.
Let me be clear: I am not out to “get” anyone. I am here to give facts as I know them, but I will not cover up untrained investigators, fraudulent investigations, or lawyers who do not do their homework and leave their clients without their jobs or salaries because of their mistakes. I know that no one likes to be held accountable for their actions. But I will do that only with facts that I believe matter, not with unprofessional conduct. If I cannot support what I say with a point, I may give my opinion, which is a right I treasure.
I have opinions on why Kane-Keil failed, and I will write about what I feel should have been included in the Complaint.  For that reason, I will post one last thing: on May 18 2023 Attorney Sujata Gibson, one of the Attorneys in the Kane-Keil case, called me. I didn’t get to the phone in time so I called her back. We had had many conversations prior, which I, a non-Attorney, certainly appreciated. I was honored to be in conversation with her. But not May 18. When I called her back that day, she told me I better not talk with anyone; everyone was her client, and I better keep silent, I should tell people I am not an attorney (I ALWAYS make sure everyone knows that). Then she hung up on me. I believe she was saying that non-attorneys know nothing, so stay away.
I’m not going to be silent, I am very ready to keep writing about what I believe went wrong. For instance: No attorney ever mentioned the rubber rooms as an accommodation for the NYC DOE. Why? I do not understand that. For more than 20 years the minute a complaint is filed against a teacher in NYC, he/she is reassigned to a “rubber room” and given a problem code on their personnel file. Then they stay there, every day until they start their 3020-a. Teachers I know (I started going to the rubber rooms to sit and talk with the teachers there in 2003) sat in their reassigned locations for months or years, some 10 years or more, on full salary. They were not told why. Starting in 2020, the reassignment rooms have been, and currently are, home. See the reassignment Notice given to an accused teacher in 2022:
remote reassignment 2022
Why didn’t any attorney mention this reassignment as an accommodation by the NYC DOE? Also, the NYC DOE is currently setting up remote schools and virtual learning all over New York City. The “undue burden” of keeping unvaccinated teachers on salary while removed from their schools never existed.
Betsy Combier

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