Ethics Issues in Litigation over the NYC Mosque

See:

 

http://www.aclj.org/media/pdf/ACLJ_EXECUTED-PETITION_20100804.pdf

 

This complaint was filed against the New York City Landmarks Preservation Commission seeking to compel reversal of the Commission’s decision to allow destruction of a nineteenth century building and its replacement with a new building that will be used principally for religious and cultural purposes.

 

Many, including the President of the United States and the Mayor of New York, and just about everyone running for office in New York, have weighed in on this controversy. 

 

There are three concerns from a legal ethics perspective:

1. The complaint mentions that the site is now used as  a prayer center for persons of the Muslim faith (P. 26).  Nowhere, however, does the complaint disclose that a principal motivating factor for the suit is the fact that the new building will be a Muslim house of worship rather than a church or temple of a different sect or something else.  Does this omission make the complaint materially misleading if the principal motivation for the lawsuit is the plaintiffs’ concern that Islam is the particular religion that will be practiced in the new building?  Are the repetitive references to the September 11 terrorist attacks throughout the complaint sufficient to put the Court on notice as to the true motivating factor behind the complaint?
2. If such is indeed the principal motivating factor for the complaint, does this constitute abuse of process?  See Restatement Third, The Law Governing Lawyers, Section 57, cmt. d., citing Restatement Second of Torts, Section 682 (abuse of process is the use of "legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed.").  If the purpose of the complaint is preventing construction of a mosque, and if preserving the existing building is of secondary importance to the plaintiff, is this complaint abuse of process? 
3. If the principal motivating factor for the complaint is animosity toward a particular religion, or a belief that a particular religion should not be practiced on that site, does the complaint manifest bias or prejudice based upon religion that is prejudicial to the administration of justice, or is the complaint instead legitimate advocacy?

Landmark preservation proceedings are sometimes used to accomplish objectives having little or nothing to do with preservation of historic buildings.  This also would not be the first time that government has been asked to interfere with the exercise of religion by using a seemingly neutral process such as historic preservation that minimizes likelihood of rigorous First Amendment review. 

 

On the other hand, religious organizations sometimes use free exercise arguments to justify development projects that undermine historic preservation goals.  See Rector and Wardens, and Vestry of St. Bartholomew’s Church v. City of New York and the Landmarks Preservation Commission, 914 F.2d 348 (2^nd Cir. 1990) (rejecting free exercise argument in favor of an Episcopal Church’s proposal to replace part of a historic church building with an office tower).   The facts in that case were, however, very different from the present controversy, including the fact that there was little overt animosity toward a particular religion or denomination on the part of persons opposing the Church’s development plan.

   

Was it ethical for a lawyer to sign the above complaint that was filed in the present controversy?