Hamptons tragedy yields no speech violation

This case has tragedy written all over it. It winds up in federal court under the First Amendment. You have the sense there was no way the plaintiffs were going to win this one.

The case is DeFabio v. East Hampton Union Free School District, decided on October 13. The facts are straightforward. After an Hispanic high school student died in a motorcycle accident, a rumor spread throughout school that Daniel DeFabio made a racist remark about his classmate's death, "one down, forty thousand to go." DeFabio denied saying this, but many classmates threatened him, prompting the school to remove him from classes for his own protection. DeFabio wanted to return to school to let everyone know that he had actually said in the wake of the motorcycle death that he was upset to hear someone else make the insensitive remark, and that his statement was therefore taken out of context. But the school refused to read his side of the story over the loudspeaker during morning announcements, fearing that it would further aggravate tensions. Meanwhile, the police had to patrol outside DeFabio's house for a week because the principal heard about threats to burn the house down.

DeFabio sues under the First Amendment over the school's refusal to let him defend himself to his classmates. The theory is that DeFabio went through hell because classmates did not hear his side of the story. He loses the case on summary judgment.

Two legal principles are at play here. First, under the Supreme Court's well-known Tinker case, the school cannot silence students unless they reasonably believe that the speech would materially disrupt the educational process. Second, public officials are immune from suit if their actions were objectively reasonable under the circumstances. Both standards tend to give school authorities the benefit of the doubt.

The Court of Appeals (Leval, Hall and Parker) says "[t]here is no question that Daniel's mere presence in the school, with or without his speech, would likely result in violence or the threat of violence and would therefore 'materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.'" While DeFabio also wanted school officials to read his statement over the loudspeaker, the Second Circuit grants them immunity on that First Amendment claim as well, concluding that officials reasonably thought this gesture would have only further confused and angered students who did not believe DeFabio.

"Class of One" lives!

All men are created equal. Thomas Jefferson said that. So did the Equal Protection Clause. The Supreme Court then said that you have an equal protection case if the government singles you out for no rational basis. That was Willowbrook v. Olech, 528 U.S. 562 (2000). Two years ago, the Roberts Court scaled back the Olech case in Engquist v. Department of Agriculture, 553 U.S. 591 (2008), ruling that these so called "class of one" claims must fail if you are challenging discretionary governmental decisionmaking, employment decisions in particular. "Class of one" claims are at a crossroads.

The case is Analytical Diagnostic Labs v. Kusel, decided on October 4. Suing the government, which had aggressively investigated its operations, the Lab invoked Olech. You can't blame the Lab. We had high hopes for Class of One cases after the Supreme Court issued Olech in 2000. That case involved a municipal zoning decision where a property owner was singled out for no rational basis. But in Engquist, the Supreme Court limited the reach of Olech in holding that Class of One cases cannot apply in the employment context, where government employers have discretion to make workplace decisions. Central to Engquist was governmental discretion. As the Second Circuit notes, "such state action does not violate the Equal Protection Clause 'when one person is treated differently from others, because treating like individuals differently is an accepted consequence of the discretion granted.' ... 'This principle applies most clearly in the employment context, for employment decisions are quite often subjective and individualized.'"

So, how far does Engquist go? Does it mean that no one can bring a Class of One case in challenging discretionary governmental decisionmaking? Some courts have read Engquist that way, sharply limiting the Class of One remedy, since so much governmental decisionmaking is discretionary. But the Second Circuit (Pooler, Calabresi and Chin) won't go that far. Class of One claims under Olech can challenge some discretionary acts. "We join the Seventh Circuit in holding that Engquist does not bar all class-of-one claims involving discretionary state action. While there may be some circumstances where Engquist is properly applied outside the employment context, the case before us is not one of them. Critically, the state defendants exercised the state's regulatory power," Judge Pooler writes.

Since the Supreme Court in Engquist said that there is a crucial difference "between the government exercising the power to regulate or license, as lawmaker, and the government acting as proprietor, to manage its internal operations," and the government has more leeway in dealing with employees than the citizens at large, the Second Circuit will not chop the head off Class of One claims that easily.

None of this helps the plaintiff in this case, however. The Lab cannot win because it cannot show that the government's investigatory practices were applied to the Lab differently from other laboratories, which were not comparable. There is no disparate treatment, which means that the Lab cannot bring a Class of One claim.

Stony Brook doctor has a free speech claim

Dr. Krukenkamp was not afraid to speak his mind while employed by the Stony Brook University Medical Center, a public facility on Long Island. He gave interviews to the newspaper criticizing the Center's pediatric program and discussing the Department of Health's investigation into that program. Unlike most First Amendment retaliation cases, the issue is not whether he spoke out on a matter of public concern and therefore engaged in protected speech. Instead, the issue is whether defendants' retaliation was significant enough to support a lawsuit.

The case is Krukenkamp v. SUNY Stony Brook, a summary order decided on October 6. Laypeople and clients will say they "got screwed" after speaking out. Lawyers and judges call it an "adverse employment action." The former phrase makes sense to most of us, but the legal system prefers the latter, clunky, phrase.

If you speak out as a public employee and get screwed over, you have an "adverse employment action" if management's retaliation would deter any reasonable employee from speaking out again. In other words, if the retaliation would have a chilling effect on future speech. This is a lenient standard for plaintiffs, and the Court of Appeals (Pooler, Hall and Kravitz [D.J.]) reverses summary judgment on that basis.

First, the doctor has a case because defendants placed him on inactive clinical status, preventing him from performing surgery. Second, when he was on call, defendants referred fewer patients to him after he spoke out. Third, the Center took his name off the "Find a Doctor" website shortly after he spoke out, a move that made it more difficult for him to find new patients and work elsewhere. These are not trivial acts of retaliation, the Court of Appeals says. (The court does say that one retaliatory act -- seating him on a small stool next to the garbage during a meeting -- is too trivial to support a damages claim).

Interesting side-note to the case. Generally, if the adverse employment action takes place six months after the free speech, that's too attenuated a causal connection between the speech and the retaliation to support a claim. Courts prefer a tighter connection, i.e., no more than a few months. One way around this is to show that defendants waited for the right moment to retaliate. Here, the Second Circuit says defendants "waited six months for an opportune time to take the most visible adverse acts, when Dr. Krukenkamp was scheduled to go on Title F leave." Authority for this holding is found in Espinal v. Goord, 558 F.3d 119 (2d Cir. 2008), a prisoners' rights case, not an employment case. The Second Circuit extends that case to the employment context.

What happens when a workfare recipient wins the lottery?

Under New York law, anyone who received public assistance over the last 10 years has to give some of his lottery winnings to the state as reimbursement for these benefits. I know there are many New Yorkers who think this is a good idea. But this case exposes a potential flaw in the process.

The case is Carver v. City of New York, decided on September 23. Carver was in the workfare program, which means he had to work various jobs for the City from 1993 through 2000. He was paid the equivalent of minimum wage in cash and public assistance. When he won the lottery, the State intercepted some of his winnings (in the amount of $5,000) and sent the money to New York City. This money was credited against the public assistance that Carter received in the workfare program.

Can you spot the flaw in the lottery payback law? Carter sued, claiming that the law violated the Fair Labor Standards Act, which says you have to be paid minimum wage for your work. If the state takes some of the lottery winnings to recoup what it paid you in workfare benefits, then, minus the lottery take-back, you actually worked for less than minimum wage during the workfare period. Interesting lawsuit, but we do not know for the moment if the lottery take-back law violates FLSA. The Court of Appeals sends the case back to the trial court for that issue after ruling that Carter has standing to bring the lawsuit.

Standing issues are not as interesting as the clash between FLSA minimum wage and the lottery take-back law. But without standing to bring the case, Carter will never get an answer to the more interesting question. Although (for some reason) Carter did not sue New York State in this case, instead only suing the City of New York which was reimbursed through the intercepted lottery winnings, over a dissent from Judge Winter, the Second Circuit (Jacobs, Walker) rules that the City is a proper defendant because he Carver claims the City was supposed to pay him minimum wage during workfare and that the City violated minimum wage laws in requiring him to pay back some of the wages in the event he won the lottery. "On this theory, Carver was directly injured by the City's alleged failure to abide by state and federal labor when compensating him for this work." In addition, since the City indirectly caused the interception of Carver's lottery prize in requiring him to pay back part of his benefits if he won the lottery. However tangentially, the City is at least partly on the hook for this potential minimum wage violation, which allows Carver to proceed against the City in this lawsuit.

Conviction upheld after excited utterance at police station

Shortly after a fatal shooting in New York City, one of the survivors (Pierre-Louis) saw the defendant, Richardson, at the police station and immediately shouted out that Richardson was the killer. This was not during a police lineup but, instead, Richardson and the other defendants were standing around in handcuffs. At more formal line-ups, Pierre Louis again identified Richardson as the killer. The question in this habeas corpus action is whether Richardson's conviction was the product of an "unduly suggestive" lineup?

The case is Richardson v. Superintendent of Mid-Orange Correctional Facility, decided on September 20. A few principles need to be clarified here. Many defendants are convicted after the jury hears that the crime victim picked the defendant at a police-lineup, which means that the lineups cannot be unduly suggestive, or the result of a police set-up. However, you cannot win a federal habeas corpus petition unless the state courts that affirmed the conviction unreasonably applied settled constitutional law. While Richardson won his habeas petition at the federal trial court, the Second Circuit Jacobs, Lynch and Restani [D.J.]), reverses, and Richardson's conviction stands.

Under the 1996 habeas corpus law, since the Supreme Court has never addressed any case quite like this one, the state courts have some leeway in interpreting the Constitution on their own in resolving this habeas action. So that even though a federal judge ruled in Richardson's favor on the suggestive lineup, that ruling is tossed out because the state court's ruling was not "unreasonable" (even if many federal judges are more experienced in applying the Constitution than state judges). The police station identification (when a very tall Richardson and other defendants were standing around in handcuffs) was not an unduly suggestive but, instead, an "accidental, unarranged viewing." No one told Pierre-Louis that Richardson was a suspect when Pierre-Louis saw him at the station house, and it is not unusual to see people in handcuffs there. As the Second Circuit notes, "every Supreme Court case addressing the suggestiveness of pretrial identifications in the due process context has involved police-conducted identification procedures."

I know what you're thinking. Richardson's fate was sealed precisely when Pierre-Louis shouted out, "He did it!" upon seeing Richardson. What the Court of Appeals is saying is that this was not quite a police-lineup, although it did in the end serve the same purpose. The Court of Appeals says, "while the police could have been more careful in coordinating the placement of the suspects and the arrival of the witnesses, it is too much of a stretch to say that the circumstances of Pierre-Louis's initial viewing are equivalent to 'the practice of showing suspects singly to persons for the purpose of identification' that 'has been widely condemned.'"

One last point. The Second Circuit has to also decide if the police station identification is sufficiently reliable to support Richardson's conviction. It was. One of the reasons for this is that another shooting victim (Ruiz) nearly jumped off his gurney and yelled at Richardson when Richardson presented to Ruiz in the hospital emergency room. This, and the fact that Richardson was at the crime scene, makes the spontaneous police-station identification all the more reliable.

Anti-religion vanity plate rule violates First Amendment

The Court of Appeals has struck down as unconstitutional the State of Vermont's scheme for issuing vanity license plates, ruling that it restricts religious expression in violation of the First Amendment.

The case is Byrne v. Rutledge, decided on October 8. Vanity plates generate a lot of money for the state because people are willing to pay a fee to broadcast their personalities to the world. In Vermont, there are limits to what your license plate can say, among them any combination of letters and numbers that would refer to a religion or deity. Apparatchiks in the Department of Motor Vehicles scrutinize the vanity applications to see if the plate is objectively or subjectively religious, which means that along with "JESUSLUVSU," a plate that means nothing to the average viewer is prohibited if the applicant wants it for religious reasons, or if DMV decides on its own that it has religious significance.

Even under the deferential nonpublic forum standard, this is process is not viewpoint neutral, and it therefore violates the First Amendment, the Court of Appeals (Livingston, Kearse and Raggi) holds, allowing Byrne to proceed with his plate that would read, JN36TN, another way of saying John 3:16. Under Supreme Court authority, "speech discussing otherwise permissible subjects cannot be excluded ... on the ground that the subject is discussed from a religious viewpoint." Since Vermont lets motorists put all sorts of philosophical messages on their license plates (such as CARP DM and PEACE2U) except for those expressing a religious philosophy or viewpoint, that exception violates the First Amendment.

The state also loses the case on a different ground: the rejection of Byrne's license plate is not reasonable because of the crazy way that it grants and denies applications. "[T]he state generally adopts the motorist's supplied meaning rather than the plate's objective meaning and, as a result, will (1) approve plates that, to the general public, appear to contain overt religious references simply because the motorist supplied a personal, secular meaning, and (2) deny applications for combinations that are objectively meaningless to third-party observers on the grounds that a registrant ascribes a personal religious meaning to the proposed plate." By way of example, the Court says, the state offers no rationale for how or why a presumably religious GENESIS plate will not distract other motorists or risk the public perception that the government is sponsoring a religious message simply because the driver is honoring his favorite rock group rather than the Old Testament.

The election lockbox is legal

New York Election Law contains all kinds of arcane provisions that people challenge in court. One of them is the lockbox. But you can take this to the bank: the lockbox is legal.

The case is Van Allen v. Cuomo, decided on September 17. The lockbox is shorthand for the Election Law rule that says you cannot change your party enrollment within 25 days of the election. This is to prevent "party raiding," when voters enroll with the opposing party to influence or determine the results of a primary election.

Van Allen challenged this time limitation under the Equal Protection Clause after he was told he could not change his party enrollment from "non-enrolled" to the Independence Party at the last minute. The Supreme Court actually resolved this issue in Rosario v. Rockefeller, 410 U.S. 752 (1973), ruling that the delay provision did not violate the right to vote since they still enjoyed the electoral franchise and could have changed their party affiliation earlier.

While the right to vote is fundamental, that does not mean that every restriction is unconstitutional. The courts will uphold "evenhanded restrictions that protect the integrity and reliability of the electoral process itself." Like everything else in constitutional law, this is a balancing test. Van Allen loses because the state's interest in discouraging party raiding and encouraging the participation of new voters outweighs Van Allen's interest in registering with the party of his choice only a few weeks before the election. The Second Circuit (Calabresi, McLaughlin and Livingston) do not think it too much a burden for Van Allen to register earlier in complying with a modest timing requirement. The Court of Appeals has too much class to really tell us what's going on here: if you want to change political parties, get off your duff and do it earlier.

Life's not fair, and neither is the due process clause

The due process clause is all about fairness. If the government wants to deprive you of a property or liberty interest, it has to do so fairly. Easier said than done. The courts have interpreted the due process clause in a way that balances the rights of the individual with the government's interest in efficiency. You are entitled to be heard before the government makes its decision, but the government has a lot of leeway.

The case is Faghri v. University of Connecticut, decided on September 17. Faghri lost his First Amendment retaliation claim, described here. He also brought a due process claim because the public college took away his position as Dean of the School of Engineering after, inter alia, his colleagues complained about him. Assuming he has a property interest in the position, his due process rights are minimal, and he loses the case.

The Second Circuit (Leval, Hall and Murtha [D.J.]) notes that while due process entitles you to notice and a hearing prior to the deprivation, that does not mean you get a full-blown evidentiary hearing with a court reporter and neutral judge. The Court says that "the requisite hearing is a minimal one, designed to serve as an initial check against mistaken decisions. It need not be conducted before a neutral decisionmaker, and it is not intended to resolve the propriety of the discharge, but to ensure there are reasonable grounds to find the charges against the employee are true and would support his termination." However, when the plaintiff is demoted and not terminated, his due process rights are even more limited. Here is the crux of the Second Circuit's decision, which affords management significant leeway in efficiently disciplining managers like Faghri:

Faghri (who was not terminated, but merely demoted) received oral notice of the university’s intent to remove him from the deanship, a brief explanation of the university’s evidence, and an opportunity to be heard. Nicholls summoned him to a face-to-face meeting and told him the university’s reason. Faghri had the opportunity in that meeting and immediately afterward to respond. As a sophisticated actor holding a prominent position in the university hierarchy, Faghri was well-equipped and well-positioned to make use of that opportunity. Any significant delay to afford Faghri more time to construct a response, during which time he would remain in his position, would have been detrimental to the university’s interest in its efficient governance. Faghri furthermore did not request additional time to mount a defense or present explanations. No clearly established constitutional law required the university to provide additional predeprivation process to such a management and policymaking employee in these circumstances.