Circuit rules against bus driver who objected to infrequent school bus safety reporting

This is the most important public employee free speech retaliation case in years, at least from the Second Circuit. The Court holds that a school bus driver cannot sue for retaliation after he spoke out about the school district's protocol for dealing with defective school buses. The Court says that plaintiff did not speak out as a citizen and that, even if he did, his speech was not on a matter of public concern.

The case is Shara v. Maine-Endicott Central School District, issued on August 18. Plaintiff was a bus driver who also vice president of the union. On behalf of other union members, plaintiff began arguing with a transportation mechanic over the frequency with which bus safety issues should be reported. Plaintiff said these safety issues should be reported daily until the safety issue is corrected. The mechanic said it's enough to raise the issue once. While another district official agreed that the issue only needs to be reported once, plaintiff continued to press this issue in his capacity as union vice president. Plaintiff was ultimately fired over his insistence that the district handle bus safety issues his way.

We have several issues here. In this blog post, I will cover the citizen-speech angle. In 2006, the Supreme Court said in the Garcetti decision if your speech is among your job duties. The Second Circuit interpreted Garcetti in 2010 to mean that the speech is unprotected if it is part and parcel of your ability to perform your duties. That's the Weintraub decision. The "part and parcel" language is a broad test, but it remains the law in the Second Circuit, which has frequently rejected public employee speech cases ever since. However, in the Second Circuit's Montero ruling (2018), the Court said that certain union speech is protected under the First Amendment. 

What it means for plaintiff is that the 2-1 Second Circuit majority (Sullivan and Park) says that plaintiff's speech was not citizen speech but unprotected work speech because it falls within the scope of plaintiff's duties as a bus driver and "constituted an indispensable prerequisite to the successful completion of his role as a bus driver." The Court finds in this Rule 12 posture that the Complaint does not allege that plaintiff 's discussions with school officials "concerned policy decisions that affected the School District's mission or the local community." Rather, plaintiff "merely asserted that he spoke in his union capacity. But his position as an officer of the union does not transform his employment-related conversations into speech as a citizen." And, the Court says, "the discussions detailed in Shara's Complaint simply reflected workplace disagreements about technical protocols for reporting bus inspection results." Put another way, this case simply highlights an "intermural dispute among school employees about the best way to report maintenance issues involving the School District's buses. Nowhere in his Complaint did Shara allege that the School District's reporting practice permitted unsafe buses to be out on the road" or that district officials "were attempting to sweep needed bus repairs under the rug."

Judge Pooler dissents, stating that plaintiff engaged in citizen speech "because [his comments] went beyond the scope of his job duties as a bus driver" as he "believed that the frequency of reporting school bus mechanical issues was too low and that such issues should have been reported more often." While plaintiff's duties included reporting whether his bus had a safety issue, "his comments went to the frequency of reporting by all bus drivers," thereby criticizing a district-wide policy regarding how often mechanical issues are reported. Since plaintiff's job was as a bus driver and complaining about the frequency of bus safety reporting was "not what he was employed to do" nor "was it part and parcel of his regular job," this is citizen speech, not unprotected work speech.

In the next blog post, I will cover the Circuit's holding in this case that plaintiff's speech did not address a matter of public concern, another requirement for a successful public employee speech case. In her dissent, Judge Pooler characterizes that holding as "the majority's gravest error."

Split ruling rejects habeas argument where criminal defendant was denied thousands of pages of rape victim's mental health records

Here we have a habeas corpus case, in which a man convicted of rape claims he was denied a fair trial in his state court criminal case because the trial judge did not allow him to review all of the victim's mental health records. The Court of Appeals says no habeas relief is warranted, and plaintiff remains incarcerated.

The case is McCray v. Capra, issued on August 17. McCray and the victim went out on a date in Albany, and she claims he violently raped her that night. As it happens, the victim has multiple mental health issues, and the criminal court reviewed 5,000 pages of her mental health documents, providing McCray's lawyer with 28 representative pages. The jury convicted McCray of rape following a credibility fight at trial. McCray argues that he was denied a fair trial because he was unable to review all of the victim's mental health records, a due process violation. The state appellate courts disagreed with that argument, and the Court of Appeals says those state court rulings did not violate clearly-established constitutional law, as determined by the Supreme Court.

The clearly-established test is the product of a 1996 law enacted by Congress that makes it harder to win habeas petitions. It is not enough for the federal habeas judges to find that the state courts violated the Constitution. To win the habeas petition, you have to show the state court rulings contravened clearly-established Supreme Court authority. This standard gives state judges some authority to interpret the Constitution on their own, and federal judges have to defer to that judgment unless the state court rulings are completely out of bounds. This is not such a case, the Second Circuit (Sullivan and Lynch) says.

Under the Brady rule, the prosecutor has to give the defense team evidence that helps the defendant. But the prosecutor is not required to turn over his entire file. Only material, or relevant, evidence has to be produced. The question is whether the withheld evidence would have changed the result at trial. Nothing in the Supreme Court's caselaw suggests that providing only a sample of the victim's mental health records violates due process under the Brady rule. It was not objectively unreasonable for the state courts to find that many of the withheld documents were irrelevant or redundant. Fair-minded jurists could agree with the state court's finding that there was relevant information in the file that defendant never saw, and the Second Circuit finds that the records that defendant did see included a remarkable amount of information about the victim's mental health issues, including her memory issues, her hypersexuaity, her sexually risky behaviors, and other personality issues that defendant probably used at trial against her in attacking her credibility. That is enough to lose the habeas petition.

Judge Jacobs dissents. Bear in mind that Judge Jacobs is a conservative judge. Still, he says that more documents could've been provided to McCray beyond the 28 pages, and he notes that six appellate judges, including himself, believe that the trial judge got it wrong. (Of course, those appellate judges were outvoted by other appellate judges; still, an interesting point in a case for which McCray will spend many years in jail). He says those withheld documents included a treasure trove of significant mental health issues that McCray could have used against the victim in challenging her credibility and highlighting her memory issues. Judge Jacobs wraps it up this way:

On this present appeal, the majority has rigorously applied principles of finality and deference. But those principles and constraints in no way bind a prosecutor. A prosecutor who continues to enjoy a misbegotten victory is as much a menace as one who contrives it. Here, the Attorney General knows from successive appellate opinions that McCray, who is still in prison, was wholly denied the right to defend himself. Yet the Attorney General labors hard to maintain the advantage. The result here is that a person is more than halfway through a 22-year prison sentence, without a trial that anyone can now deem fair, and he is still without the opportunity to see the documents that could have acquitted him. I don’t know what happened in that abandoned house; but it is clear what is happening here. This is a sinister abuse. The last-ditch defense of such a conviction by the Attorney General is disreputable. Were I a lawyer for the State, I would not have been able to sign the brief it filed on this appeal.

Transit Authority employee loses reasonable-accommodation appeal

This disability discrimination case was tried before a judge in what we call a bench-trial. The judge ruled against plaintiff, determining that this hearing-impaired individual was not qualified to work as a train operator, track worker, or bus operator for the New York City Transit Authority. As such, plaintiff was not eligible for the position. The Court of Appeals affirms and plaintiff loses the case for good.

The case is Frilando v. New York City Transit Authority, a summary order issued on August 19. In this failure-to-accommodate claim, the Court of Appeals (Cabranes, Lynch and Chin) says that plaintiff is not qualified to work for these positions because he cannot understand spoken English. The district court said this is an essential job function for a track worker, and the Court of Appeals will not second-guess that factual finding. (Trial court factual conclusions are almost impossible to overturn on appeal, as the appellate judges defer to the trial judge's assessment of the evidence). 

While plaintiff argues that the evidence shows that some workers may not have worked on tracks and may have performed administrative or other tasks instead, which would not require clear communication of the English language, the Court of Appeals says that evidence is not enough to override the trial court's factual conclusions on what constitutes an essential job function, which in this instance is the ability to communicate in English. "This is not a case where, for example, the record shows that all or even most track workers did not have to communicate in English or hear sounds in order to perform the essential function of their jobs." The case that the Second Circuit cites in support of that proposition is Stone v. City of Mt. Vernon, 118 F.3d 92 (2d Cir. 1997).

Disability discrimination plaintiff wins appeal

The Americans with Disabilities Act was amended in 2008 to make it easier for plaintiffs to win their discrimination cases, as Congress decided that the Supreme Court had narrowly interpreted the statute (initially passed in 1990) to increase the burden of proving that your ailment was a "disability," defined as a condition that substantially impairs a major life activity. That legislative amendment helps the plaintiff in this case, as the Second Circuit reverses summary judgment because the plaintiff's tendonitis is a disability under the Act.

The case is Greenbaum v. New York City Transit Authority, a summary order issued on August 15. Plaintiff got tendonitis in his wrist as a result of working at the computer. As I mentioned, a disability is defined as a condition that impairs a major life activity, such as the inability to work a class or broad range of jobs. For plaintiff, that class of jobs includes computer programing or any job that requires extensive computer use. While the district court said plaintiff does not qualify as a disabled individual under the ADA, the Court of Appeals (Lynch, Bianco and Nardini) disagrees, and this case will go to trial.

Plaintiff wins the appeal on this point because his bad wrist prevented him from working the broad class of jobs relating to working the computer. Under the rules, it is not enough to show you cannot work any job in particular; you have to show you cannot work a class of jobs. Plaintiff has enough evidence to prevail on this point. Plaintiff's doctor restricted him to using the computer for 30 minutes at a time, for a total of four hours a day. And, when he has a tendonitis flare-up, plaintiff's pain is magnified and he can't do any mouse-clicking at all. This allows the jury to find that plaintiff is disabled.

To win the case, plaintiff also has to show he was denied a reasonable accommodation under the ADA. He wanted the NYCTA to allow him to use voice-dictation software, and he submitted evidence that some of these programs actually work, including the Dragon Naturally Speaking program, on his laptop at home and the office computer. Based on her experience in other cases, plaintiff's expert said these programs are reasonable accommodations, and they are not expensive. Unless this proposed accommodation is an undue hardship on the agency, plaintiff is entitled to it under the ADA. That is how the statute works. 

Summary judgment was granted against plaintiff on this issue, but the Court of Appeals reinstates the accommodation claim because the evidence on undue hardship is contested on this summary judgment record. While the agency says the voice-dictation software is not compatible with agency computers and there may be issues with tech support, which plaintiff's department is unable to provide, the Court says that plaintiff's expert report rebuts the agency's defense, and plaintiff successfully tested the programs at home, and the agency's lawyer conceded at oral argument that there is no evidence that a system-wide computer breakdown will occur if the agency tests these programs on plaintiff's work computer. This issue simply cannot be resolved on a cold record. We'll have to empanel a jury to decide if plaintiff was denied a reasonable accommodation.

Important ruling on disability discrimination and test-taking

This disability discrimination case asks whether the plaintiff, who is hearing-impaired, may sue the MTA for denying him American Sign Language assistance for an examination that tested him on the Assistant Stockworker position. While the MTA gave him written instructions on how to take the test, plaintiff was denied the ASL accommodation. Plaintiff failed the test but claims that the ASL accommodation would have interpreted the test and its instructions in a manner that would have allowed him to pass. Plaintiff loses the case.

The case is Williams v. MTA, issued on August 12. This case was brought under the Rehabilitation Act of 1973, which offers similar protections to the Americans with Disabilities Act, which prohibits employment discrimination against qualified disabled individuals, and which requires a reasonable accommodation that allows employees to perform an essential function of the job. We have a series of holdings in this case, which took more than a year for the Court to decide following oral argument, as this case raises a few issues of first impression. 

First, the Court (Raggi, Carney and Cabranes) holds that a disability discrimination plaintiff must show he was qualified for the desired position. Plaintiff argues that job applicants raising failure-to-accommodate claims under the ADA and the Rehabilitation Act do not have to show they can perform the essential job function, and that he only has to prove that he was eligible to take the pre-employment test. Not so, says the Court of Appeals, which holds that since the ADA says that only "qualified individuals" who can perform the essential functions of the job can win their disability discrimination claims, that requirement guides the statute as a whole, even if other portions of the ADA do not use that phrase. Bottom line: Congress wanted qualified individuals to be eligible for relief under the statute. The ADA and Rehabilitation Act are both structured to reflect that legislative intent. Under this ruling, "qualified individual" is now incorporated into all subparts of 42 U.S.C. 12112(b).

Second, a job applicant must meet the requirements for the job. It is not enough to argue that, in the context of the testing accommodations, the applicant is able to perform the essential functions of test-taking. While plaintiff argues that allowing the MTA to refuse to provide reasonable accommodations during the test would greenlight discrimination for deeming a candidate not qualified for the position under some post-hoc justification, the relevant inquiry is whether the plaintiff was qualified for the position. Summarizing its holdings up until this point in the ruling, the Court says that pre-employment test-taking is not an "employment position" for which plaintiff was a "qualified individual."

Third, plaintiff was not qualified for the position. Under the ADA, you are qualified for the job if you can perform the essential job functions with or without a reasonable accommodation. The job position listed certain professional and educational qualifications. It also said that applicants can get around this by showing they have the "satisfactory equivalent of education and experience." Plaintiff does not meet the list requirements, and he provided no evidence that he had the satisfactory equivalents.

What about the City law claim? We all know the New York City HRL provides greater protections than federal law. Plaintiff interprets the statute to mean that, for MTA to win the case, it must show he was not only unable to satisfy the essential job functions but that he could not enjoy the right of taking the pre-employment test with a reasonable accommodation. The Court rejects this interpretation and finds that even under the City law, plaintiffs must show they are qualified for the position. Since the Court finds that plaintiff was not qualified for the position, he loses under the City law. 

How hard is it to back out of a settlement agreement?

This case demonstrates how difficult it is to walk back a settlement agreement. Plaintiff agreed to settle her age discrimination case but wanted that agreement revoked after she determined her employer was not being straight with her about the terms of her transfer to a new job location.

The case is Smith v. CVS Albany, LLC, a summary order issued on August 1. Plaintiff worked in a CVS location in Queens. As part of the settlement, plaintiff agreed to relocate to a CVS in Brooklyn. But now she wants out of the settlement, claiming that CVS misrepresented the hours she would have to work in Brooklyn. She said that during mediation, she thought the store was open 24 hours. It turns out that the store was in the process of converting to non-24 hours' operation. Is this enough to set aside the settlement?

It is not. The cases make it clear how difficult it is to back of a settlement that you've already agreed to. "A settlement agreement is a contract that is.... binding and conclusive,” and “a court cannot relieve [a party] of [her] choice [to settle] simply because h[er] assessment of the consequences was incorrect.” A motion to set aside a settlement agreement under Federal Rule of Civil Procedure 60(b)(3) “cannot be granted absent clear and convincing evidence of material misrepresentations.” That is a high bar. Clients need to recognize this when they enter into settlement negotiations. 

The district court denied that motion, and plaintiff filed a motion for reconsideration. Such motions are difficult to win, as well. That motion failed in the district court, and the Court of Appeals (Chin, Menashi and Sullivan) affirms. Plaintiff will have to live with the Brooklyn arrangement.

Smith v. CVS Albany, LLC, No. 20-4000, 2022 WL 3022526, at *1 (2d Cir. Aug. 1, 2022)

because “[a] settlement agreement is a contract that is.... binding and conclusive,” and “a court cannot relieve [a party] of [her] choice [to settle] simply because h[er] assessment of the consequences was incorrect,” Powell v. Omnicom, 497 F.3d 124, 128 (2d Cir. 2007) (internal citation omitted), a motion to set aside a settlement agreement under Federal Rule of Civil Procedure 60(b)(3) “cannot be granted absent clear and convincing evidence of material misrepresentations,”

Smith v. CVS Albany, LLC, No. 20-4000, 2022 WL 3022526, at *1 (2d Cir. Aug. 1, 2022)

Long Island housing proposal is ripe for federal court after Town Board for all intents and purposes rejected the proposal following community objections

 The developers wanted to building a housing complex called Village Green in Islip, Long Island. The community objected and the Town Board dilly-dallied on the application until the developers gave up and went to court, arguing that the "denial" violated the civil rights laws because it was motivated by the community's race-based opposition to the project. But the Town never formally denied the application. Is the case ripe for adjudication by the federal courts?

The case is Village Green at Sayville v. Town of Islip, issued on August 5. After the property was rezoned in 2006 to allow for residential buildings, it took years for the developers to raise money for the project and to comply with certain sewer requirements. In 2014, the Village Green asked the Town Board to allow an apartment complex of 64 rental units, with 20% set aside as affordable units. After members of the community objected, strongly implying racial objections in claiming the project would among other things attract crime, drugs and prostitution, Village Green modified its application to build only 59 units, with half set aside for senior citizens. This attracted more community opposition, and if you want your faith in humanity to diminish even further, take a look at some of the public comments in the opinion at pages 7-8; I have seen this before in other cases involving the construction of rental and low-income properties, as the comments imply that local residents are worried that Black residents will move in.

The Town took its time on the application, taking a vote in December 2016. But no one seconded the town supervisor's motion to approve the application, which meant the resolution failed for lack of a second. (I wonder what Robert's Rules of Order says about this). The Town Board has not acted on the application since that time, producing this lawsuit which the EDNY dismissed because the claim is not ripe for adjudication since there was no final decision on the application.

The Court of Appeals (Pooler, Chin and Carney) reverses and the case is revived. The Court does not rule on whether the Town acquiesced to race-based community opposition to the project. (Had that been the case, the Town Board's denial would have violated the Fair Housing Act and the Constitution). Instead it asks whether the case is ripe for adjudication by the EDNY. The case is ripe. While the Town did not publicly vote No on the application, the motion to approve failed for lack of a second, and it chose to treat the failed motion to approve as a denial of the application. The town also did not schedule any further proceedings on the application in nearly six years. So the Court of Appeals takes that as a No from the Town Board. Sometimes inaction is the same as No. The case reruns to the EDNY for discovery on the merits of the case.

SOX retaliation claim is thrown out over a bad jury charge

The plaintiff in this retaliation case brought under the Sarbanes-Oxley Act (SOX) prevailed at trial on his claim that the financial services firm that he worked for terminated his employment because he had reported an unethical practice in the workplace. That verdict is now gone because the district court did not properly charge the jury on the elements of a SOX retaliation claim. The Court uses this case to clarify the correct legal standard guiding these claims.

The case is Murray v. UBS Securities, LLC, issued on August 5. Plaintiff was responsible for performing research and creating reports that went to UBS's clients about the company's products and services. He testified that two company officials told him to skew his reports in a manner that would support the company's business strategies. Plaintiff worried this would compromise his integrity as a researcher and would make him "a shill for the market." After complaining about this, Plaintiff was fired. Defendant said Plaintiff was instead fired in a reduction-in-force, but the jury found in plaintiffs favor and awarded him $653,000 in lost wages and $250,000 in pain and suffering. The judge awarded plaintiff over $1.7 million in attorneys' fees. 

The Court of Appeals orders a new trial because the trial court charged the jury improperly. The jury was charged that plaintiff had to prove in part that his "protected activity was a contributing factor in the termination of his employment." The trial court further told the jury that this means the protected activity (plaintiff's complaints to management about having the skew the reports) "must have either alone or in combination with other factors tended to affect in any way UBS's decision to terminate plaintiff's employment." In addition, the jury was instructed, "Plaintiff is not required to prove that his protected activity was the primary motivating factor in his termination, or that UBS's articulated reasons for his termination ... was a pretext." 

This looks like a motivating factor charge, which does not require the plaintiff to prove his protected activity was the determining, or but-for, cause of his termination. (We see charges like this under Title VII disparate treatment claims). A motivating factor charge asks if the unlawful factor (retaliation, etc.) played any role in the termination. The problem, says the Court of Appeals (Park, Menashi and Perez) is that the SOX statute says the employer cannot "discriminate against an employee . . . because of" whistleblowing. Under the common definition of "discriminate" and "because of," the Court says, the statute "prohibits discriminatory actions cause by -- or 'because of' -- whistleblowing, and actions are 'discriminatory' when they are based on the employer's conscious disfavor of an employee for whistleblowing." This means the plaintiff has to prove retaliatory intent "that the employer's adverse action was motivated by the employee's whistleblowing." SOX does not permit a motivating factor charge but a "but-for" or determining factor charge.

Other statutes that use nearly identical language have been interpreted to require the but-for causation, and that retaliatory intent is an element of the claim, including the Federal Railroad Safety Act. The Second Circuit notes that the Fifth and Ninth Circuits have interpreted the SOX law to hold that retaliatory intent is not an element of a SOX claim. So we have a circuit-split that may reach the Supreme Court at some point. We have seen a steady trend by the courts to interpret most employment statutes to require "but-for" causation and not motivating factor causation, a more plaintiff-friendly test. This case furthers that trend. My guess is that if the Supreme Court takes on this issue, it will agree with the Second Circuit in this case.

What it means for plaintiff is that the bad jury charge is not harmless error. The best way to win an appeal when you lost the trial is to challenge the jury charge, because a bad charge will mislead the jury about the elements of the case, and the Court of Appeals holds this was a close case in any event, which means with the right charge, the employer can win the trial.

Court of Appeals vacates 40% reduction in fee award for successful plaintiff

We all know that attorneys' fees are available to prevailing plaintiffs in a civil rights case. The courts have said they don't want the fees portion of the case to turn into a second major litigation, but fee petitions are often hotly contested by the losing party, requiring extensive motion practice and sometimes even appellate work. The problem for plaintiffs is that a bad fee ruling is very difficult to challenge on appeal, as the appellate judges will defer to the trial court's judgment on how much money the plaintiff is entitled, based on the trial court's familiarity with the case. So most of these appeals are unsuccessful. But not all. This appeal succeeds.

The case is Raja v. Burns, issued on August 1. I would say this case is a must-read for civil rights practitioners, as it provides the most guidance I've seen in a published attorneys' fees case in years. 

After litigating this procedural due process case, the parties settled and plaintiff was allowed to move for attorneys' fees. The trial court reduced plaintiff's fee entitlement by 40%, reasoning that plaintiff did not succeed on certain claims, and that plaintiff's attorney had used "block billing" in his fee records, making it difficult for the district court to know precisely what kind of work the attorney was performing. Forty percent is a mighty large reduction. I have seen this before, as some judges will even reduce by 50% depending on the circumstances. Are these decisions worth appealing? The consensus is they are not always worth an appeal since the appellate courts, as I mentioned, are instructed by the Supreme Court to defer to the trial court's judgment on these issues.

Plaintiff appealed from the 40% reduction. The Court of Appeals (Carney, Calabresi and Robinson) says the 40% reduction was an abuse of discretion. Starting with the block-billing issue, the Court says it was not so bad. Bear in mind that courts frown on block-billing, which can look something like this: "10.50 hours -- reviewing Defendant's brief, conducting legal research, organizing the file, and phone call with client." That time entry does not itemize the work, making it difficult for the court to know if you reasonably billed for the work. On the other hand, courts don't need such precision in billing that you spend half your time organizing your time entries. District courts have said that block-billing for a few hours at a time is generally not objectionable, and in noting that plaintiff's block-billing was not too voluminous, this case recognizes for the first time at the appellate level that short block-billing entries are not enough to reduce the fee award. The entries in this case do not justify a 40% reduction, though some smaller reduction may be in order. The Second Circuit also deems it relevant that plaintiff only had one lawyer on the case, making it less likely that the block-billing might obscure redundant or unreasonable billing practices.

What about the reduction for plaintiff's lack of success on all his claims? That does not justify the reduction, either. Plaintiff's primary claim was that his due process rights were violated in the way the City of New York adversely affected his employment. The claims that plaintiff lost were secondary to his primary claim, and it shared a common core of facts with the successful claims. It also does not appear that plaintiff's lawyer spent much time on one unsuccessful claim in particular, devoting only three pages of his summary judgment brief to that issue. Simply put, the unsuccessful claims do not justify the steep 40% reduction in the overall fee award.

Some interesting evidence issues at the Second Circuit

I am not seeing a lot of Second Circuit rulings on trial-related issues, like evidence, hearsay, and jury issues. This case raises those issues, but as expected, the plaintiff loses because trial courts have broad discretion in managing their affairs, and you'll need a catastrophic error at trial in order to get a retrial.

The case is Askew v. Lindsay, a summary order issued on August 1. This police misconduct case went to trial in White Plains. The plaintiff lost. His attorneys have identified trial errors that might lead to a new trial. The Court of Appeals does not see it that way. Here are the issues.

1. Plaintiff's romantic partner saw the whole thing but she did not testify at trial. But she did testify at a preliminary hearing in Monticello Village Justice Court. Plaintiff wanted to read that testimony to the jury. The trial court said no to this. While this is sworn testimony, but there might not have been any cross-examination. This is hearsay, but we have exceptions to the hearsay rule, including former testimony from an unavailable witness. The problem for plaintiff, the district court held, was there is no legal authority for the proposition that the District Attorney, who handled the Village Justice Court proceeding, is a "predecessor-in-interest" to the police officers such that that the DA had an incentive to ensure the criminal court testimony was fair to the officers. The Second Circuit has never defined who is a predecessor-in-interest. But that issue will await another case because plaintiff cannot satisfy a more fundamental problem: there was no proof that the female witness was unavailable for trial. Yes, plaintiff tried to contact her through Facebook and six old phone numbers, but plaintiff "did not call [her] at the phone number she had used during their relationship" and did not hire a process server to serve her with a trial subpoena at her old address. Nor did he seek court intervention to ensure that she would testify in court. 

2. What about the residual exception to the hearsay rule? I don't see too many cases invoking this exception, but Rule 807 permits hearsay in special circumstances provided it is trustworthy. That exception does not apply here, the district court held, because the female witness was plaintiff's romantic partner. Courts have held that witnesses like this might not have trustworthy testimony. Moreover, the Court of Appeals (Pooler, Perez, Rakoff [D.J.]) says, the witness had a pending misdemeanor charge relating to plaintiff's arrest incident, so she would have had an incentive to give testimony at the criminal court hearing that was unfavorable to the police. And her testimony is not corroborated by the 911 call relating to the incident. Her testimony was properly excluded.

3. Final issue: the jury wanted the court to read back certain trial testimony during their deliberations. Juries do this from time-to-time, requiring the court and the parties to figure out the best way to comply with the jury's request. Sometimes the court asks the jury to specify exactly what it wants to hear. That's what happened here. The jury then changed its mind and said it did not want any read-backs. I guess plaintiff says the read-back would have helped his case but that the jury's inquiry about what the jurors really wanted caused them to change their mind involuntarily. The Court of Appeals, however, says the trial court's inquiry was proper in order to clarify what the jurors wanted. No new trial on this basis, either.

Court of Appeals upholds New York State measles vaccination requirements

We have another vaccination ruling from the Court of Appeals, but this one does not involve Covid-19 but measles. A few years ago, the State of New York revised its measles vaccination rules, narrowing but not limiting the medical exemption for children who cannot medically tolerate a measles shot. Plaintiffs argue that these rules violate due process because they allow school districts to override the medical certifications submitted by the students' doctors.  The Court of Appeals disagrees and the state procedures remain on the books.

The case is Goe v. Zucker, issued on July 29. Since the school districts rejected the certifications submitted by the plaintiff-students' doctors, some were expelled and others enrolled in private schools. Plaintiffs offer a series of constitutional argues dealing with fundamental rights to education, and their right to a medical exemption. The Court of Appeals (Leval, Cabranes and Chin) does not see it that way.

First, the Court says, the state is not forcing any child to be vaccinated against her parents' will. Instead, the new regulations permit a medical exemption under certain circumstances, and the parents and their doctors have to comply with evidence-based national standards to ensure that doctors do not recommend medical exemptions in conclusory fashion or for non-medical reasons. In this case, the Court says, some exemptions were denied because the doctors did not provide thorough information in support of the exemption requests. In other instances, the school districts relied on the opinion of the district physicians rather than the students/parents' physicians. Read that again: school district doctors could enforce their second opinion on the students. Nor is there any fundamental right to have a medical exemption based solely on the students/parents' physicians. 

What about the fundamental right to an education? You may be surprised to know there is no such fundamental right under the Constitution, which does not mention education at all; the Supreme Court said this in 1973. And, the Court says, "no court appears ever to have held" that the Constitution requires strict scrutiny (the most difficult legal standard to overcome in American law) in reviewing immunization mandates. With all the talk about substantive due process in the past few months in the abortion and family planning context, there has been almost not talk about the lack of any fundamental right to an education under the Constitution. 

Since the state regulations do not implicate a fundamental right, the Court applies the rational basis test, which is highly deferential to governmental decisionmaking. The state meets this test because it has a legitimate need to vaccinate students to prevent the spread of measles. We had an outbreak in 2018-19 and the state doesn't want a repeat performance. The state regulations are also reasonably related to this objective, the Court says, because they conform to national medical exemption standards and prevent parents from obtaining illegitimate medical exemptions following the religious exemption repeal a few years ago. The state may also delegate to school districts the authority to grant or deny these medical exemptions; that process is also rationally related to the state's interest in regulating measles and other viruses.

Judge Newman's dissent on courthouse speech issue

It is not very often that we get a pure free speech issue before the Second Circuit. In this case, the Court of Appeals rules that a state law prohibiting certain speech within 200 feet from a state courthouse may be unconstitutional as applied to a jury nullification activist who stood outside Bronx Supreme with a sign telling everyone to Google "jury nullification." But the Court splits on whether the statute is unconstitutional on its face. The majority sidesteps that issue because the record in the district court is not fully developed yet. Judge Newman disagrees. Here I will discuss Judge Newman's dissent on that issue.

The case is Picard v. Magliano, issued on July 27. I know Judge Newman to be a free-speech warrior. I recall a concurrence he issued in 1993 on workplace speech retaliation where he said the Court of Appeals was moving too fast on these issues, to the detriment of plaintiffs. Thirty years later, Judge Newman weighs in on the courthouse picketing law, noting that content-based speech restrictions are reviewed under the "strict scrutiny" test, the most unforgiving test in constitutional law, presuming the law is unconstitutional unless the government has a compelling reason for the speech restriction and the. restriction is narrowly-tailored to satisfy that compelling interest.

Judge Newman notes the statute does not prohibit expression that is likely to disrupt ongoing proceedings. It simply prohibits picketing that would "concern[] the conduct of a trial being held in such courthouse." He notes that some placard-speech would not interfere with ongoing proceedings, such as a sign that says that "the trials in this courthouse are generally unfair." That sign would concern an ongoing trial, but it would not influence any jurors. That makes the statute overbroad, and the First Amendment does not like overbroad statutes.

What also makes the statute overbroad is its geographic scope, barring certain speech. within 200 feet from the courthouse. That's just too far from the building to communicate your message to anyone relevant. Judge Newman notes that 200 feet is two-thirds the length of a 100-yard football field. "The subsection forces a person delivering a message about ongoing court proceedings to stand away from potential listeners and readers at a location equivalent to that of a person standing on a 33-yard line whose spoken words could not be heard in the far end zone or whose writings displayed at that location could not be read in that end zone." As those with an important message "are entitled to have their views heard and read in the vicinity of a courthouse, even though the State can bar speech unduly influencing such proceedings expressed to close to the courthouse that their views can be easily heard or read."