Thursday, December 31, 2009

No harm, no foul, no First Amendment case

The First Amendment makes it illegal for the government to retaliate against you for engaging in free speech. This issue usually arises in the context of public employees who blow the whistle on government misconduct. This time around it's different. It concerns a guy who sued the Town of Ridgefield, Connecticut.

The case is Tuccio v. Marconi, decided on December 18. Tuccio is a developer. He filed a lawsuit against a Town police officer. At the same time, he was trying to get a permit to use the municipal sewer system for his project. When the Board denied his request for the permit, he brought a retaliation suit in federal court, claiming the Town held the police case against him. Then, with the retaliation suit pending, Tuccio asked for a meeting with the Town's director of planning and zoning. The Town's lawyer objected to this and said that Tuccio should only communicate with her in writing. According to Tuccio, other Town officials also declined to meet with him.

So does Tuccio have a case? No. Well, yes and no. The case went to trial, and Tuccio won (winning $1 in damages). Then the trial court vacated the jury's verdict under Rule 50, "finding that plaintiff's evidence did not reasonably support a verdict in his favor." The Court of Appeals (Leval, Cabranes and Livingston) affirms, and Tuccio experiences the ultimate disappointment. He wins at trial but in the end he gets nothing.

Under Second Circuit authority, "our constitutional doctrine prohibits government officials from punitive retaliation against persons who exercise their First Amendment right to sue the government." That's the rule in Dougherty v. Town of N. Hempstead Board of Zoning Appeals, 282 F.3d 83 (2d Cir. 2002). If Town officials would not meet with Tuccio in retaliation for his lawsuits, why doesn't he have a case? Because there are limits to retaliation cases. The meetings which Tuccio wanted with Town officials were not that important. At the time of the proposed meetings, Tuccio had no business with the Town, and while he wanted a "sit down" with one of them, the record is devoid of any reason for that meeting. He was neither denied access to any public meetings nor any business opportunities. The meeting denials were trivial.

Instead, the Town attorney was being cautious: he did not want Town officials to meet with a guy who was suing the Town. Not a bad strategy, the Court of Appeals says. Allowing public officials to have meetings like this with a litigation adversary can only mean trouble, for reasons that any lawyer can tell you. God knows what the municipal official might say to a litigation adversary. It could hurt the Town and come out at trial. Since the meeting denials caused no harm, and balancing that against the Town lawyer's prudent refusal to allow public officials to meet with Tuccio, the plaintiff has no case under the First Amendment. No harm, no foul.

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