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.

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. 

 

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. 

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.

Private farm broke the law when it refused to host same-sex wedding

The New York State Division of Human Rights ruled a few years ago that a farm in upstate New York broke the law when it refused to allow a same-sex wedding on its property. This is the kind of case that attracts attention now that same-sex couples are allowed to marry. An appellate court upholds the finding that the farm violated state law.

The case is Gifford v. McCarthy, decided by the Appellate Division, Third Department, on January 14. The Court resolves a host of issues, including the following:

1. Liberty Ridge Farm is a public accommodation under state law, and must therefore comply with state law prohibiting discrimination on the basis of sexual orientation. "In addition to harvesting and selling various crops to the public, Liberty Ridge rents portions of the farm to the public as a venue for, among other things, wedding ceremonies and receptions. It hosts both religious and secular wedding ceremonies on the farm. When providing a venue site, Liberty Ridge offers several wedding-related event services, including transportation of guests within the premises, a light beverage station, decoration and set-up services, flower arrangements and event coordination." As the Appellate Division sees it, "Liberty Ridge [is open] to the public as a venue for wedding ceremonies and receptions and offer[s] several wedding-related event services in connection therewith." "The fact that the wedding ceremonies occur on private property and pursuant to a written contract does not, as petitioners contend, remove Liberty Ridge's facilities from the reach of the Human Rights Law; the critical factor is that the facilities are made available to the public at large."

2. The record also shows that the farm did in fact refuse to allow these women to marry at the facility, in violation of state law. "Cynthia Gifford displayed no unwillingness to allow the McCarthys to marry at the farm until Melisa McCarthy referred to her fiancée as a 'she.' Despite Cynthia Gifford's clear rejection of the McCarthys as customers, petitioners nonetheless argue that, in advising Melisa McCarthy that 'we do not hold same[-]sex marriages here at the farm,' they did not deny services to the McCarthys 'because of' their sexual orientation. Instead, petitioners claim that the decision to do so was based solely upon the Giffords' religious beliefs regarding same-sex marriage. Such attempts to distinguish between a protected status and conduct closely correlated with that status have been soundly rejected [by other courts]. The act of entering into a same-sex marriage is 'conduct that is inextricably tied to sexual orientation' and, for purposes of the Human Rights Law, we hold that there is 'no basis for distinguishing between discrimination based on sexual orientation and discrimination based on someone's conduct of publicly committing to a person of the same sex.'"

In other words, this was not a legitimate religious objection by the property owners. Since the farm was a place of pubic accommodation, the womens' right to marry there overrides the religious objection. As the Court puts it, "the statute does not permit businesses to offer a 'limited menu' of goods or services to customers on the basis of a status that fits within one of the protected categories."

3. The farm raised First Amendment objections to the requirement that they have to marry the same-sex couple. The Free Exercise (of religion) clause is part of the First Amendment. Under Supreme Court authority, "the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his [or her] religion prescribes (or proscribes)." Or, if the law applies to everyone, and does not single out a particular religion, then you have to comply with that law, even if complying with that law violates your religious principles. The Court says the farm is not required to "participate in the marriage of a same-sex couple. Indeed, the Giffords are free to adhere to and profess their religious beliefs that same-sex couples should not marry, but they must permit same-sex couples to marry on the premises if they choose to allow opposite-sex couples to do so."


4. The farm also raises a "compelled free speech" objection to all of this. The Third Department is not buying it. "Despite the Giffords' assertion that their direct participation in same-sex wedding ceremonies would 'broadcast to all who pass by the Farm' their support for same-sex marriage, reasonable observers would not perceive the Giffords' provision of a venue and services for a same-sex wedding ceremony as an endorsement of same-sex marriage. Like all other owners of public accommodations who provide services to the general public, the Giffords must comply with the statutory mandate prohibiting discrimination against customers on the basis of sexual orientation or any other protected characteristic. Under such circumstances, there is no real likelihood that the Giffords would be perceived as endorsing the values or lifestyle of the individuals renting their facilities as opposed to merely complying with anti-discrimination laws."

Judging from the out-of-state case law citations throughout the opinion, it looks like this is the first case in New York to address the issue of when a private business must allow or accommodate same-sex marriages. This is the issue de jure. As a national religion-rights law firm represents the farm, it is sure to ask the New York Court of Appeals to hear the case.

Say hello to the equal opportunity jerk

Did you know that an employer can defend against a sexual harassment case by arguing that the male supervisor is simply a bad person who can't get along with anyone,not just women? Courts call him the equal-opportunity jerk. We got such a guy in this case.

The case is Dotel v. Wal-Mart Stores, a summary order issued on January 14. In order to win a sexual harassment case, the plaintiff has to prove she endured a hostile work environment because of her gender. Same holds true for gender harassment cases, where the plaintiff says she was singled out for mistreatment (bad work assignments, etc.) because of her gender. But if the manager treats everyone that way, it's not sexual/gender harassment but boorish behavior that falls outside the scope of Title VII and other employment laws.

The "equal opportunity jerk" defense can make a difference. For it to work, management and its lawyer might clear it with the offending manager, who probably has no say in the matter because he is not a litigation decisionmaker. The attorney probably tells him, "Look, John, we have a case to defend. We have spoken to your subordinates. They all say you are insufferable. Nobody likes you. That is how we will defend the case. Take one for the team." For this defense to work, it helps if other subordinates submit affidavits that describe Johnny's horrible personality. I have seen this happen.  ("He is a demanding and sometimes difficult supervisor, but he gets the job done").

In this case, plaintiff sued Walmart in Connecticut. She said her manager created a hostile work environment because of gender. But the Court of Appeals (Pooler, Hall and Carney) doesn't see it.

Assuming arguendo that Dotel believes she was the victim of a sex-based hostile work environment, the record lacks objective evidence from which to raise a material question of fact sufficient for her suit to survive summary judgment. Dotel argues that her supervisor engaged in abusive insults and verbal harassment of herself and other women on a daily basis, and while the majority of those insults were gender-neutral on  their face, each could also be read as insulting to women. However, the record does not support such a finding. Dotel’s contemporaneous written complaints make no mention of gender-based comments directed toward her, and there is no evidence in the record to suggest her supervisor treated the female associates in the department differently than the one male associate. Indeed, the strongest inference that can be drawn from the record is that the supervisor was rude to all the department’s associates. 

 In other words, equal opportunity jerk. Plaintiff does have evidence that "her supervisor had stated that 'women [are] good for nothing.'” But "this isolated statement is not 'sufficiently severe or pervasive to alter the conditions of [Dotel’s] employment and create an abusive working environment.'” And with that, the case is over.

Vicious killer wins appeal in Supreme Court

I read years ago that when the Supreme Court battled over the death penalty in the 1970s and 1980s, the liberal justices would focus on legal precedent in arguing that the death penalty in some case was unconstitutional. But that Chief Justice Rehnquist would focus on the grisly, nauseating facts of the killing, down to the last drop of blood, before holding that the death penalty was legal in that case. This case is similar, except this time around, even the conservative justices (except for one) focused on the law.

The case is Hurst v. Florida, decided by the Supreme Court on January 12. The majority decision, written by Justice Sotomayor, says little about the stabbing. The real focus is on how criminal justice works in the State of Florida. If the jury finds the defendant guilty of murder, it then hears evidence about the punishment. But the jury cannot mandate the death penalty; it can only make that recommendation to the judge, who then hears evidence to determine whether there was enough aggravating evidence to support the ultimate punishment. So the judge really imposes the death penalty. By an 8-1 vote, the Supreme Court says this scheme violates the right to trial by jury under the Constitution.

The super-majority thinks this is an easy case. In 1984 and again in 1989, a very different Supreme Court said capital punishment procedures like the one in Florida was constitutional. But in 2000, the Court said in the Apprendi case that any fact that "exposes the defendant to a greater punishment than that authorized by the jury's guilty verdict" is an "element:" that must be submitted to the jury. Then, in 2002, the Court said in the Ring case that the jury must decide any fact that can increase the criminal defendant's punishment. Since the death penalty is more severe than life in prison, the jury has to impose that punishment, not the judge, even if the jury recommends to the judge that the defendant deserves the Chair. Apprendi means the 1984 and 1989 precedents are no longer good law.

Justice Alito dissents. He argues that the Florida death penalty law does not run afoul of Apprendi. He also gives a detailed account of how the victim was stabbed to death. It is not a pleasant read, I can tell you that. He argues from those details that even if the Florida scheme violates the Constitution, it was harmless error for the judge to impose the death penalty. Alito concludes:

In light of this evidence, it defies belief to suggest that the jury would not have found the existence of either aggravating factor if its finding was binding. More than 17 years have passed since Cynthia Harrison was brutally murdered. In the interest of bringing this protracted litigation to a close, I would rule on the issue of harmless error and would affirm the decision of the Florida Supreme Court.

No excessive force claim without affirmative evidence that defendant used force against plaintiff

In this police misconduct case, the jury returned a verdict in plaintiff's favor on a series of claims, including false arrest and excessive force. The trial court then took away the excessive force verdict as to certain defendants. The Court of Appeals finds that the plaintiff has no case against these defendants on the excessive force claim who testified they did not do anything wrong.


The case is Walker v. City of New York, a summary order issued on January 5. The district court in July 2015 summarized the verdict as follows:

The jury returned a verdict in favor of plaintiff on five of the eight remaining claims and awarded a total of $260,000. On the excessive pre-arraignment detention and fabrication of evidence charges, the jury found defendant Hennin liable and imposed $125,000 in compensatory and punitive damages. The jury awarded another $85,000 based on its findings that defendant Morrissey and "Another Employee" used excessive force and that defendant Barbieri failed to intervene. Finally, Walker received an award of $50,000 due to the finding that the City of New York was liable for the state law assault and battery claims. The jury found for defendants on the false arrest and malicious prosecution claims and did not reach the negligence issue.

Here is the issue on appeal: Defendant Morrissey says she did not assault plaintiff. Plaintiff testified that Morrissey was not present at the time of the assault and that everyone near him during the assault were men. Morrissey is a woman. "Both witnesses, then, testified that Morrissey did not employ force against Walker, and no other evidence supports a contrary conclusion." 

So how did the jury rule against Morrissey? The Court of Appeals says it was not allowed to do so. This holding implicates an interesting legal principle that surfaces from time to time: "plaintiff does not carry his burden of proving a fact merely by having witnesses deny that fact and asking the jury to decline to believe the denials." There has to be some affirmative evidence that the incident happened.

Practically speaking, this means that great trial lawyering will not always win you the case. If the defendants deny they did anything wrong, and your cross examination makes them look foolish or stupid, the jury cannot find in the plaintiff's favor solely on the basis of that cross examination without some affirmative evidence that the plaintiff was wronged. 

Citizen/activist free speech claim dies on the vine

Few citizen activist/free speech cases reach the Second Circuit. This one did. The Court of Appeals finds the plaintiff cannot state a claim that a school district retaliated against her for her public advocacy against the district.

The case is Munoz-Feliciano v. Monroe-Woodbury School District, a summary order decided on January 4. I briefed and argued this appeal. Plaintiff spoke out against the district's failure to deal with student bullying and other issues. She then ran for the school board. During the campaign, she claims district officials conducted a smear campaign against her, falsely telling voters that she was aligned with the controversial Hasidic Jews who live in the community. After the election (plaintiff lost) she claims the district failed to protect her daughter from bullying at school.

When can governmental officials get away with in attacking candidates for public office? Both sides have a free speech interest. The officials have the right to speak, and the candidates have the right to run without actionable retaliation. The Court of Appeals (Walker, Katzmann and Winter) says "as to the alleged 'smear campaign,' Feliciano has no First Amendment right to prevent public officials from criticizing her. ... in the absence of 'threats, intimidation, or coercion,' a public official’s advocacy is not actionable in a First Amendment retaliation suit.'" Even if defendants made defamatory public comments, "because Feliciano’s candidacy rendered her a public figure, the allegedly false statements only lose First Amendment protection if they were made with actual malice, that is, with knowledge of or reckless disregard for their falsity." The complaint does not allege that the district officials spoke out against plaintiff with malice.

Plaintiff's other retaliation claim also fails. The district's conduct against her daughter took place too long after plaintiff engaged in protected speech. That kills off the causal connection necessary to plead a First Amendment case. Without direct evidence of retaliatory intent ("we hate you for what you said"), the circumstantial evidence of retaliation has to be quite tight. Although I argued that the district retaliated against plaintiff at the first available opportunity, the Court of Appeals rejects that argument, and the case is dismissed for good. 

Landlord loses constitutional claim against Long Island village

This landlord got into a major fight with the Village of Patchogue, on Long Island. That dispute led to a federal lawsuit under the First Amendment and other constitutional provisions. In the end, the Village wins. Along the way, we learn something about First Amendment retaliation and the constitutional tort of "abuse of process."

The case is Mangino v. Village of Patchogue, decided on December 22. Plaintiff owned an apartment building and obtained a rental permit that expired at some point, though plaintiff continued to rent out the apartment. The Village issued criminal summonses in connection with the expired rental permit, and Village prosecutor supposedly threatened plaintiff that he would be hit with more summonses if he did not settle this lawsuit. A tenant then complained to the Village that the apartment had electrical problems.When inspectors showed up, they found no such problems but discovered instead other potential hazards in the basement. Plaintiff was then hit with a bunch o' summonses over these problems, including ones relating to the failure to renew the rental permits. Parts of the claim got dismissed on summary judgment, and a jury rejected the rest at trial.

Reading the statement of facts in this case, it's hard to see where the potential constitutional claims fit in. But there is a First Amendment claim here. The Court of Appeals (Cabranes, Newman and Winter), however, says there really is no First Amendment case. Plaintiff says the Village initiated the criminal prosecutions in retaliation for his speech. But the Second Circuit notes that probable cause to arrest defeats a First Amendment retaliation claim. While plaintiff says the ticket was written a day before he allegedly committed any crime, that does not matter. "We find unpersuasive Mangino's position that 'whether probable cause existed for the issuance of [the ticket] should be determined by the circumstances at the time the summons was issued' -- by which he means at the time the summons was written -- and 'not when the summons was served and filed." When it was served and filed, the Court says, there was probable cause.

Plaintiff raises another First Amendment retaliation claim, alleging that the Village improperly charged him with disregarding fire hazards and issued a Fire Prevention Violation Order. Yet, plaintiff does not dispute that he committed the violations upon which the charge was based. "While it may be true that, at least under certain circumstances, a plaintiff can prove First Amendment retaliation even if the measures taken by the state were otherwise justified, he may do so only if he can show that the defendant, for improper motive, took regulatory action that was significantly more serious than other action he had discretion to take. Here, Mangino has not made any argument that the issuance of the FPVO was significantly more serious than other action Poulos had discretion to take."

Plaintiff also has an abuse of process claim against the Village. Claims like this allege that someone dragged plaintiff through the legal system for no good reason. But the law is not clear whether probable cause defeats an abuse of process claim. The courts in this Circuit are all over the place on this issue. Which means the individual defendants get qualified immunity from suit, as they could not have been expected to know they were violating plaintiff's rights when they treated him this way.