Tuesday, February 9, 2016

Another courtroom closure habeas case

I have a soft spot for "closed courtroom" cases. In these cases, after a guilty verdict, the criminal defendant argues that he was denied a fair trial because the courtroom was closed for a period of time during trial. This may seem like the ultimate technicality, but it actually applies the Sixth Amendment's right to a public trial.

The case is Mickens v. Larkin, a summary order decided on February 5. This guy was convicted of various weapons and drug charges. But during trial when an undercover officer testified, the judge closed the courtroom. That's the basis for this habeas corpus petition.

Under Supreme Court authority, "the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure." The trial court temporarily shut the courtroom out of concern for the officer's safety, and the safety of his family. The question is whether the state appellate courts in upholding the conviction unreasonably misapplied Supreme Court authority in holding that the courtroom closure did not warrant reversal of the conviction.

Hope you read that carefully. The question is not whether the Appellate Division simply got it wrong. For defendant to win his federal habeas petition, the Appellate Division must have unreasonably gotten it wrong. Wrong is not enough. Very wrong is the legal standard. In this case, the Appellate Division did not unreasonably apply Supreme Court authority. Here's a flavor of the Second Circuit's (Calabresi, Lynch and Lohier) reasoning:

[Defendant] argues that the closure ordered by the state trial court, which permitted certain family members to remain in the courtroom and stated that other members of the public might be permitted to attend upon request, was broader than necessary to protect those interests. He does not identify any Supreme Court case so holding, however, and does not explain how his preferred alternative – posting an officer at the door of the courtroom and having the court make an individualized ruling for anyone seeking to enter – is superior to the measures in fact adopted by the trial court.
The courtroom-closure rule has to be one of the most obscure bases to overturn a criminal conviction. But again, it stems from the Sixth Amendment. It does not mean the defendant can run free; it means you have a re-trial. If you think this rule still goes too far, blame the constitutional framers. They were soft on crime. 

Monday, February 8, 2016

Another exciting case under the Collateral Order Doctrine

This case arose when a lawyer working for the State Attorney General's office brought a lawsuit over her termination, which she claimed violated the Americans with Disabilities Act. Her former employer argued that her case did not belong in federal court under an obscure law that says certain policymakers can only litigate their claims in the EEOC. The case then gets more and more technical and some readers will probably lose interest along the way, but it stands for an important point: some appeals are premature and have to wait until the case is over.

The case is Fischer v. New York State Department of Law, decided on February 5. Plaintiff worked in the Office of Appeals and Opinions writing briefs and taking on other legal analysis duties. She was fired after the defendant appeared to revoke a reasonable accommodation under the ADA because of her disability. Plaintiff then sued in federal court, and the state argued that the district court had no jurisdiction because state law says that policymakers can only have their discrimination claims adjudicated in administrative agencies like the EEOC. Concluding that plaintiff was not a policymaker, the district court disagreed and the state appealed that ruling.

Here is what you need to know. First, rulings like this are not immediately appealable. In the federal system, cases do not get appealed until the case is over, with few exceptions recognized under the Collateral Order Doctrine. Under that Doctrine, adverse rulings can be appealed right away if the order conclusively determines the disputed question, resolves an important issue completely separate from the merits of the case and be effectively unreviewable on appeal from a final judgment. This doctrine is so narrow you wouldn't believe it if it slapped you in the face. The most well-known application of this doctrine is that qualified immunity rulings can be appealed right away, because under that immunity, the defendant is immune from suit and the law wants the courts to decide immunity questions right away.

The case does not fall under the Collateral Order Doctrine. While the state argues that this case cannot be filed in federal court, the Court of Appeals (Kearse, Livingston and Pooler) says that "the collateral order doctrine has been held not applicable to permit immediate appeal of decisions denying motions to dismiss on the ground that plaintiffs' claims should be adjudicated in a different forum." In  the end, "the order rejecting [defendants'] contention -- that Fischer's claim can be pursued only by commencement of an administrative proceeding -- can be effectively reviewed on appeal from a final judgment."

The Second Circuit ruling does not get into the nitty-gritty of plaintiff's case and how exactly her former employer violated her rights. You will probably have to review the motion papers or the district court ruling for that. I also see that the Attorney General's office is defending this case. I wonder if plaintiff's former close colleagues are working on the case against her. The Second Circuit ruling is actually a motion decision that explores in detail the defendants' arguments for immediate appeal. The AG's office really does not want this case to proceed to trial. But proceed it will, under the settled rule that nearly all federal trial court rulings are not immediately appealable.

Monday, February 1, 2016

A man's home is his castle

A man's home is his castle, and, with a few exceptions, the police cannot cross the threshold to make an arrest without a warrant. That is what the Court of Appeals is telling us in a ruling that vacates a conviction for unlawful possession of a firearm.

The case is United States v. Allen, decided on January 29. This case was argued in December 2013, which means it took the Court of Appeals more than two years to decide this case. The police came to Allen's home because someone finked him out for assault. When the police spoke with Allen, they were outside the house, on the sidewalk. Allen was inside the house, talking to the police. Otherwise, they were face to face. The police told Allen he was under arrest for assault, and could he come with them to the police station? Allen said OK, but he needed to get his shoes from inside the house and speak to his daughter. He allowed the police to follow him into the house. Inside, the police saw drug paraphernalia and other unlawful things and they went and got a search warrant. While executing that warrant, the police found an unlawful gun and drug paraphernalia.

As the Second Circuit (Lynch, Lohier and Sack) remind us, the Fourth Amendment is particular in what the government cannot do. You are free from unreasonable searches in the home. Supreme Court and Second Circuit cases really say that your home is sacrosanct. The Court concludes that "where law enforcement officers have summoned a suspect to the door of his home, and he remains inside the home's confines, they may not effect a warrantless 'across the threshold' arrest in the absent of exigent circumstances." Put another way,
when officers approach the door of a residence, announce their presence, and place the occupant under arrest when he or she, remaining inside the premises, opens the door in response to the police request, the arrest occurs inside the home, and therefore requires a warrant.
This may seem like a technical ruling, but it is rooted in constitutional law, which sometimes lets the guilty go free because the search or arrest went too far. Other Circuits have decided this issue differently, "concluding that law enforcement officers may" make arrests like this "without physically entering the home." "These cases hold that the 'officers may not physically enter the home ...' partially because 'it is the location of the arrested person, and not the arresting agents, that determines whether an arrest occurs within a home." The Second Circuit charts its own path, in part because of prior Second Circuit precedent and also because the Supreme Court in Payton v. New York and other cases has emphasized that "the Fourth Amendment applies with its greatest force in the home." Moreover, "While it is true that physical intrusion is the 'chief evil' the Fourth Amendment is designed to protect against, we reject the government’s contention that this fact requires that Payton’s warrant requirement be limited to cases in which the arresting officers themselves cross the threshold of the home before effecting an arrest. The protections of the home extend beyond instances of actual trespass."

Thursday, January 28, 2016

Citing new federal rules, SDNY quashes subpoena in employment discrimination case

Discovery issues do not usually reach the Court of Appeals, as federal practice does not allow you to appeal rulings prior to the entry of judgment. By that point, the discovery disputes are long forgotten  and the discovery problem is largely unreviewable on appeal anyway because the Court of Appeals will not overturn a trial court's discovery ruling without an abuse of discretion, which is highly deferential to the trial court. This ruling is from the trial court, but it's worth discussing.

The case is Henry v. Morgan's Hotel Group, issued by SDNY Magistrate Judge Cott on January 25. The cite is No. 15-CV-1789 (ER)(JLC), 2016 U.S. Dist. LEXIS 8406 (S.D.N.Y. Jan. 25, 2016). This is an employment discrimination case. Defendant wanted to acquire plaintiff's employment records from a past employer. You will see this from time to time. The way to get these records is for the defendant's lawyer to serve a subpoena on the prior employer. Plaintiff has an opportunity to object to that subpoena before it reaches the employer. One objection may be that the records are irrelevant, or that the request will hurt him in some way.

The judge quashes the subpoena, for the following reasons:

1. The employer's attorney did not give plaintiff's counsel a chance to object to the subpoenas before they went to the prior employers. "The subpoenas were served on Christmas Eve (an arguably sharp tactic to begin with) on both the third-party employers and Henry's counsel. Some courts have quashed subpoenas due to untimely notice alone. The failure to give proper notice is not an insignificant matter, and should not be lightly glossed over by a court." While the employer says plaintiff suffered no prejudice from this tactic, the court disagrees. That brings us to holding number

2. "While it is true that Henry's counsel was able to file a motion to quash before the return date of the subpoena (the subpoena return date being January 11 and the motion to quash being filed on January 8), it is still the case that one of the third-party employers (Café Luxembourg) has already produced records and thus Defendant has had to take steps to ensure that these records have not been made available to counsel litigating the case. Thus, the premature service of the subpoena has created a set of circumstances where defense counsel have had to represent to plaintiff's counsel and the Court that they have not reviewed the documents produced by the third-party. This scenario alone is at least arguably prejudicial to Henry. It would not have occurred had Defendant complied with the Rule."

3. More interestingly, the court finds prejudice to plaintiff because the subpoenas that were served on his prior employers might someday be in a position to hire plaintiff again. That they know plaintiff is bringing a lawsuit might cost plaintiff a future job.

As Henry's counsel points out in her reply memorandum, one of the subpoena recipients, North End Grill, is owned by Union Square Hospitality Group, which owns at least 12 other restaurants in New York City, and another, Café Luxembourg, is under the same ownership as two other well-known restaurants in the City. Thus, if Henry were to seek employment at any of these 16 restaurants in the future, his application to any of them (or any other restaurants to which the managers of these establishments might relocate) might well be adversely affected by the fact that his records had been subpoenaed in this lawsuit. While Defendant makes light of this argument, it is a legitimate concern. Indeed, the Court would hardly be surprised that, if Defendant (or any other establishment) knew that an applicant for employment had brought a lawsuit against another restaurant for discrimination, it might take that into account in the hiring process.

4. The subpoena also violates the recently-amended federal rules. "The amendments to Rule 26(b)(1) now allow discovery of 'any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.'"

Defendant says the records from Henry's prior employers are relevant because "Plaintiff held himself out as being an exceptional waiter, and relied upon his employment at these prior employers as evidence of his employable qualities," and that "if Plaintiff's representations were false, which Defendant strongly suspects, the records from these prior employers are extremely relevant both in connection with Plaintiff's credibility and the doctrine of after-acquired evidence." The court says this is a stretch.

The Court finds this explanation to be an insufficient basis to warrant the subpoenas served on the prior employers. Defendant predicates these subpoenas on wholesale speculation that Henry was untruthful about some of the events of his prior employment. Even if Henry was not an "exceptional" waiter at his prior jobs (whatever that may mean), it is not remotely apparent what difference that would make regarding the allegations of discrimination and retaliation he has made in this case. The issue presented here is whether Defendant's actions directed toward Henry were based on valid considerations or violated the discrimination laws. Henry's prior employment has little if any bearing on that issue. In addition, as Henry notes, Defendant has not offered sufficient (indeed any) evidence that he made misrepresentations to Defendant regarding his prior employment to justify production of any of the records that Defendant seeks, or satisfied the Court that its production is proportional to the needs of the case.

Wednesday, January 27, 2016

Idaho is still part of the United States

Federal laws apply everywhere, from Maine to San Diego. State courts cannot interpret federal laws as they see fit. They have to follow Supreme Court authority. In this case, the Supreme Court slaps down a court in Idaho that thought otherwise.

The case is James v. City of Boise, decided on January 25. The issues here were so clear-cut that the Supreme Court decided the case without oral argument. Under a federal statute that we call Section 1988, in civil rights cases, the prevailing plaintiff can recover his attorneys' fees from the losing party. But that is a one-way street. "Loser pays" does not apply when the defendant wins the case. When the defendant wins, the plaintiff pays the defendant nothing, unless the case was completely frivolous and off-the-wall. The Supreme Court has interpreted Section 1988 that way for years.

A plaintiff in Idaho brought a civil rights case against a city and lost. The plaintiff wanted damages after she was bitten by a police dog when she was mistaken for a burglar. The state court in Idaho decided that Section 1988 required the plaintiff to pay the City its attorneys' fees solely on the ground that the City won the case. The court did not decide whether the lawsuit was frivolous. That was wrong, and the Supreme Court reminds us that federal law reigns supreme in the U.S., and that state courts have to follow Supreme Court precedent.

The Idaho court noted that Section 1988 is a federal statute. But it also said it could interpret the statute in its own way:

Although the Supreme Court may have the authority to limit the discretion of lower federal courts, it does not have the authority to limit the discretion of state courts where such limitation is not contained in the statute. Therefore, in cases filed in the Idaho state courts seeking to recover under 42 U.S.C. section 1988, the court has discretion in deciding to award attorney fees to the prevailing party, whether the prevailing party is the plaintiff or the defendant.

Not so, the Supreme Court says:

“It is this Court’s responsibility to say what a [federal] statute means, and once the Court has spoken, it is the duty of other courts to respect that understanding of the governing rule of law.” And for good reason. As Justice Story explained 200 years ago, if state courts were permitted to disregard this Court’s rulings on federal law, “the laws, the treaties, and the constitution of the United States would be different in different states, and might,perhaps, never have precisely the same construction, obligation, or efficacy, in any two states. The public mischiefs that would attend such a state of things would be truly deplorable.” Martin v. Hunter’s Lessee, 1 Wheat. 304, 348 (1816).
Do you see that case citation from 1816? That was a Supreme Court case that foreshadowed cases like this one. All laws students read Martin v. Hunter's Lessee. No one remembers the facts in that case, and many of us have probably forgotten its holding. The modern Supreme Court reminds us of that holding in this case. 

Tuesday, January 26, 2016

When can a Rule 68 offer moot the case?

It is a statistical fact that most lawsuits will settle before trial. For defendants' lawyers, one way to push for settlement to serve the plaintiff with a Rule 68 offer, which proposes to enter a judgment against the defendant in exchange for a sum of money. The plaintiff has 14 days to accept the offer, at which time the offer expires. This case explores what happens if the Rule 68 offer would give the plaintiff everything he asks for and the plaintiff rejects it.

The case is Campbell-Ewald v. Gomez, decided by the Supreme Court on January 20. This case was brought under the Telephone Consumer Protection Act, which prohibits the use of an automatic dialing system to send an unsolicited text message to someone's cell phone. Plaintiff wanted to bring a class action under the TCPA. But the defendant tried to make the case go away by serving plaintiff with a Rule 68 offer. The offer would have paid plaintiff his maximum damages entitlement for all the text messages. It would also stipulate to an injunction against any further text messages. In other words, the Rule 68 offer would have given plaintiff all that he was suing for. Plaintiff rejected the offer.

The issue here is whether that Rule 68 offer mooted the case once plaintiff rejected it. At first glance, why wouldn't it? The defendant is giving the plaintiff everything he wants, right? By a 5-4 vote, the Supreme Court says the offer did not moot the case. The Court offers very technical reasoning: the unaccepted offer is simply that: an unaccepted offer.

When a plaintiff rejects such an offer—however good the terms—her interest in the lawsuit remains just what it was before. And so too does the court’s ability to grant her relief. An unaccepted settlement offer—like any unaccepted contract offer—is a legal nullity, with no operative effect. As every first-year law student learns, the recipient’s rejection of an offer ‘leaves the matter as if no offer had ever been made.’ Nothing in Rule 68 alters that basic principle; to the contrary, that rule specifies that ‘[a]n unaccepted offer is considered withdrawn.’ Fed. Rule Civ. Proc. 68(b). So assuming the case was live before—because the plaintiff had a stake and the court could grant relief—the litigation carries on, unmooted.
The significance of this ruling is that if the Supreme Court went the other way on this issue and held that a Rule 68 offer that gives away the store moots the case if the plaintiff rejects it, then corporate defendants could make class action lawsuits by doing this before the plaintiff moves for class certification. This would be so because there is no class action if the plaintiff settles the case before the court certifies the class. This particular case might have yielded relatively low damages, but a class action could have yielded a fortune if thousands of other people also got these unsolicited text messages.

The Court does say there might be other ways for defendants to moot cases like this:

We need not, and do not, now decide whether the result would be different if a defendant deposits the full amount of the plaintiff’s individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount. That question is appropriately reserved for a case in which it is not hypothetical.
In other words, what if the defendant literally gives the plaintiff the money that plaintiff is seeking in the lawsuit? Would that moot the case? Some defendant right now is probably attempting that tactic. That issue will reach the Supreme Court in a few years. 

Monday, January 25, 2016

School districts must deal with disability-related bullying in the IEP's

One category of civil rights law does not get much attention: students with disabilities. Their rights are protected under the Individuals with Disabilities in Education Act. This is a complicated law that requires public schools to give disabled students a free and appropriate public education, or a FAPE. The districts must also work with the parents to ensure that the kids get a FAPE. If the district fails to do that, the parents can enroll their children in private schools at the district's expense.

The case is TK v. New York City Department of Education, decided on January 20. If you are not familiar with student disabilities law, the bottom line is this: the Court of Appeals holds that if in-school bullying affects a disabled student's education, the school must address that bullying in discussing the student's Individualized Education Plan with the parents.

The disabled student in this case was bullied at school so badly that it destroyed her emotionally. The school did not appear to stop the bullying. Her parents asked the school to address the bullying problem in her Individualized Educational Program, or IEP, which the IDEA requires the school to prepare for disabled students with input from the parents. An IEP covers the student's educational goals for the year and how the district will meet them. According to the Court of Appeals (Lohier, Lynch and Carney), "school officials ... refused to discuss bullying, concluding that it was an inappropriate topic to consider when developing LK's IEP."

The district court granted the parents summary judgment in this case, and the Court of Appeals affirms, holding for the first time that "the bullying of a student with a disability is an appropriate consideration in the development of an IEP and can result in the denial of a FAPE under the IDEA." This holding is consistent with the US Department of Education's view that bullying can interfere with a student's ability to receive an appropriate public education.

We conclude that the Department denied L.K. a FAPE by violating her parents’ procedural right to participate in the development of her IEP. At two separate meetings, both of which were integral to the development of L.K.’s IEP, Plaintiffs sought to discuss L.K.’s bullying, but school officials refused to do so. The undisputed record evidence confirms that, in asking to speak with the officials about the bullying, L.K.’s parents had reason to believe that the bullying would interfere with L.K.’s ability to receive meaningful educational benefits and could prevent L.K.’s public education from producing “progress, not regression.”

. . .

The Department’s persistent refusal to discuss L.K.’s bullying at important junctures in the development of her IEP “significantly impede[d]” Plaintiffs’ right to participate in the development of L.K.’s IEP. This constituted a procedural denial of a FAPE similar to other procedural violations that our sister circuits have held to constitute denials of a FAPE, such as the predetermination of an issue prior to an IEP meeting, or the failure to inform parents about a face significant to the development of an IEP.