Yeah, it's legal

In 1993, the voters of New York City passed a referendum that places term limits on elected officials. Last year, the City Council overturned that law, notably allowing Mayor Bloomberg to seek a third term. Can the City Council overturn the will of the voters this way? The answer: yeah, its legal.

The case is Molinari v. Bloomberg, decided on April 28. One of the arguments made here is that the City Council violated the First Amendment in overturning the term-limits law because last year's enactment discourages citizens from further participating in the referendum process. After all, what's the point of passing a citizen referendum if the legislature is going to repeal it down the road?

There are limits to how the government can regulate the referendum process, i.e., in Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999), the Court ruled that it violates the First Amendment to require petition circulators to be registered voters, and they also cannot be forced to wear identification badges. These requirements drastically reduced the number of people available to circulate petitions. The rules in Buckley and other similar cases were unconstitutional in how they regulated who could circulate petitions and how they could do so.

These cases are unlike the term-limits rescission, however. There is no right to legislate by referendum, and there is also no constitutional prohibition against the government repealing a law that the citizens enacted through referendum. It's distinctions like this which make the constitutional world turn. Just because the Supreme Court has struck down restrictions governing the referendum process does not mean that the City Council cannot take action in respect to the 1993 term limits referendum. Other courts have similarly ruled, i.e., the Tenth Circuit which held a few years ago that the State of Utah was able to require that wildlife referenda (as opposed to citizen initiatives on other subjects) could not be passed without a super-majority of the voting public. So, even if the City Council has made it more difficult for the citizens to organize referenda in the future, "the difficulty in the process alone is insufficient to implicate the First Amendment, as long as the communication of ideas associated with the [referendum process] is not affected."

Refusal to testify can get your case dismissed at trial

An inmate sues corrections officers alleging racial discrimination. His jail cell at Auburn is 150 miles from the federal courthouse, so he is transported to a closer facility, at Great Meadow, 70 miles away. The inmate objects because Great Meadow is the very place where he claims he was abused by corrections officers. He's afraid that abuse will happen again, so on the morning of trial he decides he will not testify on his own behalf. What's a trial judge to do?

The answer is that the trial court can dismiss the claim. The case is Lewis v. Rawson, decided on April 28. Under the rules governing "failure to prosecute," the court has discretion to dismiss the case if the plaintiff will not testify and his account is the only evidence in support of his case.

The state wins the appeal. But this is not just an appeal about an inmate who refuses to testify. The reasoning would apply to any plaintiff who requests an adjournment or will not testify at his trial. The Second Circuit finds that the trial court has authority to dismiss the case if plaintiff will not testify and the jury has already been empaneled. A plaintiff simply cannot refuse to proceed at trial without a darned good reason.

The plaintiff here did request an adjournment of trial so that it could be held in Syracuse, not Albany, where he could be placed an a different prison during trial. But the trial court was allowed to presume that this guy was safe at Great Meadow and that he would be treated lawfully. The state also offered to place him in a special housing unit at Great Meadow.

In addition, the Court holds, the plaintiff should have known long before the first day of trial that he might be confined at Great Meadow during trial. His usual facility was 150 miles away, too far for the daily commute. The plaintiff was also a violent felon who could only be confined at a maximum security prison. Waiting until the first day of trial to object to this placement was unreasonable because it was always foreseeable that he would be at Great Meadow during trial. On this analysis, plaintiff waited too long to object, and the trial court was therefore able to reject that objection and dismiss the case on his refusal to testify.

Judge Berman dissents because the trial judge denied the plaintiff "his day in court" and a relatively brief postponement so the case could be heard in Syracuse is not significant considering this case has dragged on for more than a decade and it would only be a three day trial. Judge Berman also thinks the trial court acted too quickly, hearing from the plaintiff and both attorneys on the morning of trial and dismissing the case without any extended inquiry into the reasonableness of the plaintiff's security concerns about confinement at Great Meadow.

Ex-girlfriend can authorize police search of boyfriend's house

Here's a case that drives home the principle that a man's home is not always his castle. It may also be the castle of people who live there and have authority to invite the police over the threshold. For this reason, a search resulting from the ex-girlfriend's invitation got the boyfriend arrested.

The case is United States v. McGee, decided on April 24. Responding to an emergency call, the police came to the house and observed McGee (the boyfriend) running away. They also saw Ellison (the girlfriend) standing outside the house. She told the police that she was breaking up with McGee but he ran off with the keys which prevented her from retrieving her belongings. After proving that she lived there, the police allowed her to break a window to enter the house, and after that happened, she asked the police to wait around while she packed up all her stuff.

What happened next is the reason why this case wound up in court. As the Second Circuit describes it, "While retrieving her clothing from the front closet, Ellison informed the officer that McGee had guns hidden in that closet. The officer asked Ellison twice whether he could check the closet, to which she replied, '[G]o right ahead.' The officer and his back-up discovered a rifle, three shotguns, ammunition for a handgun, and a bulletproof vest of the type that is used by the police."

But that's not all. When the police went upstairs to watch Ellison pack up more of her stuff, they saw a photograph sticking out from the mattress. Ellison told the police they could look at it. Not good for McGee. The picture showed him holding a gun. Ellison also allowed the police to keep the picture.

So the question is, could this incriminating evidence be used against McGee? It was his house, but he did not allow the police inside, and he sure did not allow them to take the guns and photograph. Here's the basic rule, from a 1974 Supreme Court decision:

A warrantless police search of a defendant’s private premises which would otherwise violate the defendant’s rights under the Fourth Amendment is lawful if conducted pursuant to the consent, voluntarily given, of another person who has authority to consent by reason of that person’s “common authority over or other sufficient relationship to the premises .” United States v. Matlock, 415 U.S. 164, 171 (1974).

Years later, the Supreme Court added a wrinkle to this rule in holding that someone with "apparent authority" can allow the police inside the house, even if they did not have actual authority. In an attempt to get around this legal standard, McGee says that his ex-girlfriend had no authority -- actual or apparent -- because he locked her out of the house. McGee relies on a precedent that rejected a police search after the girlfriend allowed them into the defendant's locked study and no one was allowed to enter.

The Court of Appeals says that "McGee's argument is by no means unreasonable." The Court even says that McGee's argument is "respectable." But McGee loses. While the presence or absence of locks on the door is helpful in deciding whether someone else can let the police inside your house, "McGee did not lock Ellison out of the house and take away her key with the intention of excluding her from continuing to live in his house with him." The Court of Appeals explains:

McGee did not lock Ellison out of the house and take away her key with the intention of excluding her from continuing to live in his house with him. By locking the door, he was not saying, “Get out of my house and stay out.” To the contrary, McGee locked her bags in the house and locked her out temporarily in an effort to prevent her from leaving the house. Far from seeking to expel her from the house, his conduct was designed to insure that she would continue to reside in it. He was simply trying to put her baggage out of her reach so that she would not depart. While it is true that in doing so he temporarily prevented her from entering the house, that was an incidental consequence of his action rather than his objective.

In cases involving police searches and locked doors, the Second Circuit concludes, "The question in each case turns on the meaning of the locked door." In this case, "The objective of the locked door in this case was only to separate Ellison from her baggage, so as to prevent her from ceasing to occupy the premises she invited the police to search." As Ellison still had "access" to the house, she was authorized to invite the police inside, and the search was legal.

Supreme Court limits warrantless vehicle searches

Sometimes the federal courts just get it wrong, even after the Supreme Court issues a ruling intended to clarify the issues. So the Supreme Court has to revisit to issue to set the federal courts straight. That happened this week. Moral of the story: Supreme Court decisions are what the Supreme Court says they are

The case is Arizona v. Gant, decided on April 21. In Chimel v. California, 395 U.S. 752 (1969), the Supreme Court said that, upon arrest, the police may conduct a warrantless search in any area within your immediate control. Then, in Belton v. New York, 453 U.S. 454 (1981), the Supreme Court reached a similar holding in the context of warrantless vehicle searches. The idea is that the police have the right to search any area within the arrestee's reach in order to prevent him from grabbing a weapon or destroying evidence.

Over the years, though, federal courts began interpreting Belton quite broadly, finding that the police can search any area within the arrestee's reach at the time of the arrest, even if at the time of the search the arrestee was nowhere near the search area. As Justice Stevens observes in Arizona v. Gant, the Belton precedent "has been widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search." Moreover, the Supreme Court majority in Gant notes, "Justice Scalia has similarly noted that, although it is improbable that an arrestee could gain access to weapons stored in his vehicle after he has been handcuffed and secured in the backseat of a patrol car, cases allowing a search in this precise factual scenario ... are legion."

So here is the law of police searches in the context of arrests, as set forth by the Supreme Court this week: the police may "search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search." The Court throws in another permissible search practice: "we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle." The second search practice was first proposed in a concurrence by Justice Scalia in Thornton v. United States, 541 U.S. 615 (2004). It is now the law of the land.

So what about the fact that police agencies around the country have trained officers to seach vehicles on the basis of the courts' flawed interpretation of Supreme Court precedent? The Supreme Court is not about to alter its rulings on that basis. Justice Stevens writes, "we have never relied on stare decisis to justify the continuance of an unconstotitional police practice."

And the verdict is ... yanked away!

There are many obstacles to winning a First Amendment lawsuit against a government employer. Even if you win the trial, you can still lose.

The case is Cicchetti v. Davis, 07 Civ. 10546, 2009 WL 928618 (SDNY), decided on April 6. Cicchetti was Fire Commissioner for City of Mount Vernon, appointed by defendant Davis, who was the Mayor. Davis lost his re-election campaign to Clinton Young, and when Cicchetti was seen hanging around with Young and the publisher of a newspaper who didn't like Davis, plaintiff was fired by Davis before Davis left office. Davis called Cicchetti a traitor.

Facts like this predicate a lot of First Amendment retaliation lawsuits. Cicchetti (sort of) won his trial in March 2009, as the jury found that his political association motivated his termination. But there's a catch. The Supreme Court has held that the First Amendment does not protect policymakers from retaliation based on their political associations. Branti v. Finkel, 445 U.S. 508 (1981). "Policymaker" is a term of art. The point is that elected officials have the right to pick and choose which high-ranking appointed officials they want to work with in order to fulfill their electoral mandate.

So when the jury decided that Cicchetti was fired because of his political activity, it also answered written questions from the judge about the nature of Cicchetti's position. These questions were drawn from case law governing whether an appointed official is a policymaker under the First Amendment. Lawyers who handle cases like this would recognize these questions as the Vezzetti-factors. See, Vezzetti v. Pellegrini, 22 F.3d 483 (2d Cir. 1994). Among other things, the jury found that Cicchetti would be expected to perform his job duties in response to partisan politics and that it would be important for the Mayor and Fire Commissioner to share the same political ideology.

Answers like this mean that the Mayor had the right to fire Cicchetti. So phase two of the trial, if you will, involved the Court reviewing the jury's response to the Vezzetti questions and deciding if Cicchetti was a policymaker. Based on the jury's findings, the Court finds that Cicchetti's termination was legal and not prohibited by the First Amendment. And the jury's verdict that Cicchetti was fired because of his political association is ... yanked away.

No injunction, no fees

The students at a high school in Yonkers walked out of the building in protest over budget cuts. When the administration subjected the students to discipline (5 day suspension), their attorney filed an order to show cause because the punishment did not fit the crime. After a hearing, the district court found that the students had a likelihood of success on the merits of their First Amendment claim that the suspension would constitute irreparable harm. The kids were spared further suspension.


Any civil rights lawyer would next file a motion for attorneys' fees under Section 1988. That's what happened here, and the district court granted the motion. The Court of Appeals reverses.


The case is Garcia v. Yonkers School District, decided on April 1. While the district court did state from the bench that the plaintiffs had a likelihood of success and irreparable harm and the court further said it would sign the preliminary injunction, it never got around to doing so. The court also said that it would allow the district some time to be fully heard on the merits of the order to show cause. The students meanwhile graduated from high school, and the case lay dormant until counsel moved for attorneys' fees, which the trial court granted.


The Second Circuit says the trial court should never have granted the attorneys' fees because no preliminary injunction was formally entered (notwithstanding the trial court's erroneous statement to the contrary in its written opinion granting attorneys' fees). It's true that a preliminary injunction can qualify you as a "prevailing party" in certain instances for the purposes of a fee award, but without a formal preliminary injunction, the plaintiffs are not entitled to them.


Making things even more complicated, although the trial court suggested it would sign the preliminary injunction when the order to show cause was filed, it also said it would allow the school district an opportunity to be fully heard on the merits of the application, which necessarily entangled the court in the disciplinary judgment of school officials, something the courts generally frown upon. But the school district did not receive adequate notice of the injunction application, the Court of Appeals rules, because its lawyers were given the paperwork as they entered court on the day of the order to show cause. In any event, under Fed.R.Civ.P. 65, the district court is supposed to clarify the basis for the injunction. The court did not do this, further supporting the Second Circuit's conclusion that no injunction was entered.


Finally, while the school district did not follow through with the suspension, you could make the argument that the lawsuit compelled the district to forego the punishment, thereby making the students prevailing parties under the attorneys' fees statute. That argument may have worked prior to 2001, but that year the Supreme Court, in Buckhannon v. West Virginia, 532 U.S. 598 (2001), held that you are not a prevailing party without a formal court judgment. No judgment here. That means no attorneys' fees.

Threatening to politically "assassinate" someone's "ass" can get you fired

The Court of Appeals has granted summary judgment to a former New York City Council employee who engaged in disruptive behavior over a proposal to name a city street after controversial black leader Sonny Carson.

The case is Plummer v. Quinn, decided by summary order on April 7. There were two incidents that got plaintiff in trouble. First, when the City Council debated the issue, while seated in the staff section, Plummer yelled out “that’s a lie” and “liar” when two councilmembers made what she believed were false comments about Carson. Then, at a press conference outside, Plummer threatened to derail the political career of a councilmember, Comrie, who had abstained from voting on the street-naming measure. The Second Circuit summarizes what happened: "Unfortunately, particularly given that Plummer was aware of the 2003 murder of a councilmember in City Hall, she did so using more colorful language, stating that she would seek to politically 'assassinate' Comrie’s 'ass.' Plummer acknowledges that these comments were the subject of negative press."

Can language like this get you fired? Under the First Amendment, you can't be fired for expressing matters of public concern. As the Court of Appeals reminds us, "[T]he First Amendment protects the eloquent and insolent alike.” But public employees are not protected if their comments have potential to unduly disrupt the workplace. We call that the Pickering balancing rule, named after a Supreme Court ruling from 1968.

Pickering balancing requires the Court to consider not only the statements at issue but the “context in which the dispute arose” and “the nature of the employee’s responsibilities” since “[t]he level of protection afforded to an employee’s activities will vary with the amount of authority and public accountability the employee’s position entails.” Melzer v. Bd. of Educ., 336 F.3d 185, 197 (2d Cir. 2003). Plummer's position as a City Council staffer and the Council Speaker's concern for the public safety of a councilmember justifies Plummer's termination under Pickering balancing. Also, under Piscottano v. Murphy, 511 F.3d 247, 271 (2d Cir. 2007), the City has an easier time in firing Plummer because she held a "public contact" position.

First Amendment does not protect employee's request NOT to perform unsafe work

A man who tells his boss that he is not fit to handle certain public job responsibilities has not engaged in First Amendment speech, the Court of Appeals has ruled.


The case is Mulcahey v. Mulrenan, decided on March 31. The plaintiff was a Fire Department Captain who wrote to his superiors that he lacked the training and experience to serve as an "acting battalion chief" of a fire unit and that he would not "accept any responsibility for actions or decisions that may cause injury or death to civilians or members of" the fire department while serving in that capacity. Defendants retaliated against plaintiff for saying this.


So is this First Amendment speech? I guess the argument could be that he is speaking on a matter of public concern, i.e., public safety. (Only "public concern" speech is protected under the First Amendment). But it's not protected, the Second Circuit (Jacobs, Wesley and Crotty) holds in this summary order, because it was really "calculated to redress personal grievances."


In this case, the Second Circuit nibbles around Garcetti v. Ceballos, 547 U.S 410 (2006), which held that speech that arises from your official job duties is not protected speech under the First Amendment. I'm still waiting for the Court of Appeals to decide a tough case under Garcetti, which has certainly reduced the amount of successful public employee free speech cases. But this case does not add a serious wrinkle to Garcetti because the plaintiff was seeking an exemption from his official job duties. As the Second Circuit sees it, "Under Garcetti, a request for a personal exemption from an official duty is clearly an administrative act made in the course of public employment." That brings this case within Garcetti, which states that "The controlling factor . . . is that his expressions were made pursuant to his [public] duties."

Bergstein & Ullrich, LLP, settle Federal retaliation lawsuit

State parole officer settles unlawful retaliation lawsuit
MidHudsonNews.com
GOSHEN – A female state parole officer has settled her federal lawsuit against the state Division of Parole for $125,000.

On the eve of her trial, Rita Flynn of Orange County accepted the settlement, said her attorney Stephen Bergstein.

The lawsuit, filed in 2007, alleged retaliation for complaints of gender discrimination by supervisors and managers in the state agency that supervisors prisoners after their release from incarceration.

The lawsuit alleged that after Flynn had complained about gender discrimination to management and the state Division of Human Rights in 2005, the Division of Parole removed Flynn from her position as sex offender parole officer; suspended her for almost three months; revealed personal information about her to the community, jeopardizing her safety; and denied her overtime and other job benefits, said Bergstein.

“The issues that were for trial were not the gender discrimination issues. The issues at the trial had to do with retaliation after she was complaining about gender discrimination,” he said. “The Parole Department, I think, is a male dominated workplace.”

Flynn’s other attorney, Helen Ullrich, said women “have a right to speak out when their basic right to equal treatment is violated, without fear of retaliation from the employer.”

Age discrimination claims can be arbitrated under the union contract

In 2007, the Second Circuit held that a union contract cannot require an age discrimination plaintiff to arbitrate his dispute rather than proceed in Federal court. That decision, Pyett v. Pennsylvania Building Co., 498 F. 3d 88 (2d Cir. 2007), has been reversed by the Supreme Court.

The case is 14 Penn Plaza v. Pyett, decided on April 1. As Justice Thomas frames the issue, "The question presented by this case is whether a provision in a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate claims arising under the Age Discrimination in Employment Act of 1967 (ADEA)." Framing the question that way provides the answer. The answer is that the union, on the employees' behalf, can negotiate a union contract that requires the employees to arbitrate their age discrimination claims.

The Second Circuit had ruled that it could not compel arbitration because a prior Supreme Court ruling, Alexander v. Gardner-Denver, 415 U.S. 36 (1974), held "that a collective bargaining agreement could not waive covered workers’ rights to a judicial forum for causes of action created by Congress." The Court of Appeals also observed that Gardner-Denver was in tension with the Supreme Court's more recent decision, Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20 (1991), which "held that an individual employee who had agreed individually to waive his right to a federal forum could be compelled to arbitrate a federal age discrimination claim."

In a 5-4 vote to sustain the mandatory arbitration provision, the Supreme Court noted that the labor union has authority to negotiate on the employee's behalf on pay and other "conditions of employment." The Supreme Court finds that the resolution of discrimination claims qualifies as a condition of employment under labor law. While the employees argued that "the arbitration clause here is outside the permissible scope of the collective-bargaining process because it affects" their "individual, non-economic statutory rights," the Court finds otherwise. Giving up the right to take your age discrimination case to court is part of the give and take between unions and management when they negotiate a contract, particularly since arbitration (in the Supreme Court's view) is seen as an efficient and less expensive means to resolve employment disputes.

Bolstering the Court's reasoning is its recent ruling in Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20 (1991), which held that age discrimination claims are appropriate for arbitration. Gilmer has now been extended to collective bargaining agreements: "The Gilmer Court’s interpretation of the ADEA fully applies in the collective-bargaining context. Nothing in the law suggests a distinction between the status of arbitration agreements signed by an individual employee and those agreed to by a union representative."

In dissent, Justice Souter states that the Supreme Court's ruling undercuts the precedential value of Gardner-Denver, and that "The majority evades the precedent of Gardner-Denver as long as it can simply by ignoring it."