Anonymous plaintiff loses appeal

This fellow brought a lawsuit pro se, claiming that local officials in upstate New York violated his rights under Section 1983 arising from their alleged failure to seal records pertaining to criminal records from his youth. The problem is that plaintiff wants to proceed anonymously and will not use his real name in the lawsuit. What does the court do in a case like this?

The case is Publius Publicola v. Lomenzo, issued on November 29. The answer to that question is the case was dismissed, not because plaintiff has no case on the merits but because he will not use his real name in pursuing the lawsuit. Since his mother did not name him Publius Publicola, and he will not comply with court rules that allow him to proceed anonymously, the case is over.

Plaintiffs can proceed anonymously in certain circumstances, but they must follow certain rules. One of those rules is that the trial court must grant permission to do so or disclose their identity to the court. This plaintiff ignored the trial court's order to comply with these rules, and the case was dismissed. The Court of Appeals (Sack, Sullivan and Lee) agrees that plaintiff cannot proceed with the case. In fact, he cannot even proceed with the appeal. The Court dismisses the appeal because plaintiff would not comply with the Court of Appeals' order that he not sign his appellate briefs under a pseudonym.

The Federal Rules of Appellate Procedure require litigants to disclose their identity to the court. The Federal Rules of Civil Procedure say the same thing. Why? Because it facilitates public scrutiny of judicial proceedings and the public's right to know who is using their courts. The rule also ensures that parties take responsibility for their court filings so that courts can sanction lawyers and parties for abusing the court system. This rule also protects against potential conflicts of interest. You can get permission from the court to waive this rule, but this plaintiff did not comply with that procedure. 

In the end, plaintiff's failure to comply with Rule 32(d) means the case is dismissed.

State orders upstate school district to drop Native American mascot and imagery

A culture war is brewing in the State of New York, as an upstate school district is challenging the Department of Educations' order that the district get rid of Native American imagery as the school mascot.

The case is Cambridge Central School District v. New York State Education Dept. The trial court ruling issued on June 22, 2022. It all started when the district was petitioned in October 2020 to consider abandoning the mascot name "Indians" and related imagery of a Native American wearing a Plains Indians-style headdress. This happened because in 2001, the State encouraged, but did not mandate, school districts to consider these mascots. 

In December 2020, the district voted to embark on an eight-month review of this issue, which involved soliciting public comment at school board meetings, reviewing hundreds of pages of academic studies on the use of Native American imagery by other school districts and professional and collegiate sports teams, and reviewing its own diversity policy. 

Following the eight-month review, on June 17, 2021, the school board voted to end the use of the "Indians" name and imagery. But on July 8, 2021, probably because of public pressure, the board voted to reverse itself and renewed its commitment to the "Indians" name and logo as a mascot for the time being. In changing its mind, the board did not undertake "formal efforts to reach out again to the community or to consult anew with other stakeholders, resources or educational professionals in connection with the July resolution" to retain the mascot. The State Education Commissioner determined that the school board's "unexplained reversal" of the June 2021 resolution was arbitrary and capricious in violation of state law. Moreover, the Commissioner said, even if the three-week change of mind had no basis in reason, "the retention of the 'Indians' mascot, name and imagery was itself an abuse of discretion on the part of the [School] Board." the Commissioner said.

That is how this dispute wound up in state court in Albany County: the school district wants to overturn the Education Commissioner's determination. The school district loses the case because, under state law, an administrative decision is only illegal if it is arbitrary and capricious and an abuse of discretion. That is not the case here, State Supreme Court said. An administrative decision is not arbitrary and capricious even if there are good arguments against that decision. Courts will not second-guess the judgment of an administrative agency if that judgment is not arbitrary and capricious. 

The court defers to the Education Commissioner because a school board cannot adopt a nickname, mascot or logo that interferes with the creation of a "safe and supportive environment that promotes the achievement of learning standards for all student." In addition, "a board will be determined to have abused its discretion if it changes its position from a prior approved course of action without explanation." While the school board first undertook an extensive review in deciding to get rid of the "Indian" name and mascot, the Commissioner found "the July resolution was entirely lacking in the evidence-based findings which impelled its June resolution." The school board did not change its mind on the basis of compelling evidence; it gave this issue "short shrift" only three weeks later, without reviewing objective evidence. It was also unclear, the Commissioner said, why the district deviated from its diversity policy.

This is a divisive issue. The discussion on my hometown Facebook page has been debating this issue ever since the state told the school district to dispense with the Chiefs logo or risk losing state education funding. Most of the commentators are in favor of keeping the Chiefs as the nickname and mascot. The trial court's on this issue is not the final word, as the Cambridge district is appealing to the Appellate Division. Since it filed the notice of appeal on July 19, 2022, their paperwork in the appellate court is due in January 2023.. A decision will most likely come down in 2023.

Racial discrimination and free speech claim dismissed

The Court of Appeals thought this case was so routine that it did not advance any analysis in affirming the grant of summary judgment on the plaintiff's discrimination and constitutional claims against the New York City Board of Education. The Court (Raggi, Wesley and Lohier) simply said the district court got it right and summarily affirmed the case. Of course, no case is routine for the plaintiff. 

The case is Johnson v. Board of Education Retirement System of City of New York, a summary order issued on November 18. Plaintiff served as the Manager of Infrastructure and Technical Services for the Information Technology (“IT”) Department at the Board of Education Retirement System of the City of New York. He raised concerns that an outside vendor, GJTZ, responsible for implementing an IT project called the Comprehensive Pension Management System, was not doing a good job in this role, i.e., they were not providing him plans or updates on CPMS. He also raised concerns about Vitech, a third-party software vendor engaged by GJTZ, whom Johnson believed was misrepresenting its products to the CPMS team. Plaintiff was eventually terminated. He claims First Amendment retaliation and racial discrimination.

The First Amendment claim is dismissed because plaintiff did not speak as a citizen in blowing the whistle; he did so as an employee. The Supreme Court in 2006 created that distinction, and since plaintiff was speaking pursuant to his official job duties, there is no First Amendment claim. It was basically plaintiff's job to speak out like this. That's the Garcetti case.

While plaintiff also brought a state law whistleblower claim, that claim was also dismissed because he did not bring his concerns "to a governmental body," as the statute requires. Instead, he communicated his internal dissent within the ambit of his employment. The district court noted that "Recent caselaw and legislative history confirm that not every issue raised internally by a public employee qualifies as a disclosure protected" under the state whistleblower law. As the district court reasoned, applying the New York Court of Appeals precedent in Tiplado v. Lynn, 26 N.Y.3d 204 (2015), 

If communication with internal supervisors qualified as a disclosure to a governmental body, then the requirement that a complainant report internally “[p]rior to reporting” a protected complaint would have been superfluous. Any disclosure would have been protected by the Civil Service Law as soon as the complainant raised the issue of wrongdoing to his or her supervisor. The most sensible reading of the text and caselaw is that the crucial inquiry is whether the speaker intended to blow the whistle on wrongdoing or, rather, whether the speech was simply raising issues about matters relating to the complainant's job.

What about the racial discrimination claim? The district court said plaintiff had "only one piece of evidence that could be construed as directly evincing discriminatory intent," a comment from his supervisor that he could grow marijuana in the office. But on the whole record, that is not enough to win the case. The district court held:

Johnson claims that Rich would not have made that statement had he not been in a meeting with two African Americans, Johnson and Miller, one of whom had his hair in dreadlocks. Even if Johnson is correct, however, Rich's comment—though awkward and inappropriate—is not enough to sustain Johnson's discrimination claim over the specific professional criticisms upon which Rich claims to have based his decision to terminate him. Defendant Orlando's objections to Johnson's starting salary also cannot sustain any inference of discrimination, as the record provides ample evidence that his concern was specifically that Johnson's salary was nearly double what he had been earning in the private sector.

A good primer on federal abstention

Federal abstention doctrine is not the most exciting part of federal litigation, but it is important, as it recognizes that federal courts cannot always stick their hands in the state court cookie jars. There may be an assumption that federal law trumps state law, and that is usually true, but in some cases, we have to wait for the state courts to resolve their cases before the federal courts can take on similar issues in the same case. Got that? 

The case is Gentes v. Town of Sprague, a summary order issued on November 17. The town sued plaintiff in state court for a variety of infractions, including his alleged mishandling of public money. Plaintiff was the Business/Facilities Manager for this town in eastern Connecticut. That lawsuit was brought in state court in 2019. Plaintiff then sued the town under the First Amendment, claiming that the town went after him for speaking out on matters of public concern. So we then had two lawsuits going on at once, one in state court, one in federal court, each dealing with some overlapping issues. The federal court stayed the federal lawsuit until resolution of the state lawsuit, invoking what we call Colorado River abstention, one of the many abstention rules created by the Supreme Court in the 1970s to allow state courts to do their thing before a federal judge can take on a related issue in the same case.

The Court of Appeals (Bianco, Sack and Wesley) reverses the federal district court, and plaintiff thus does not have to wait for the state court proceeding against him to wind down before he can proceed with his constitutional claims against the town. The federal lawsuit may proceed right now because, while the federal trial court determined that staying the federal case would avoid the risk of piecemeal litigation and it did not want conflicting judgments in state and federal court, the trial court did not consider other relevant factors in the Colorado River analysis. 

Under Colorado River, we also have to consider whether (1) federal law provides the rule of decision and (2) state procedures are adequate to protect plaintiff's federal rights. Plaintiff asserts multiple constitutional claims, none of which will be litigated in state court. So that reality favors plaintiff under Colorado River. Also, even if the town proves in state court that plaintiff mismanaged public money, that would not necessarily kill of plaintiff's federal claims under the Due Process Clause and the First Amendment.  The case returns to federal court in Connecticut where plaintiff can pursue his federal claims right now.

Rockland County measles requirement might violate Free Exercise (of religion) Clause

The Court of Appeals has ruled that a jury must determine whether the County of Rockland eliminated a religious exception for a mandatory measles vaccine because of the religious bias of the County Executive.

The case is M.A. v. County of Rockland, issued on November 9. Following a measles outbreak in Rockland County in 2018, the County Department of Health ordered that a Waldorf School exclude all non-vaccinated students for 21 days because the school was in the outbreak zone. Prior to this, many of the students got religious exemptions from the measles vaccine. But this and subsequent exclusion orders eliminated all religious and medical exemptions. In March 2019, the County Executive, Day, issued an emergency declaration that barred unvaccinated children from places of public assembly, including schools, unless they had a medical exemption. Day said he did this because he was concerned about a possible rise in measles during the upcoming holiday season of Easter and Passover, and in April 2019, he lobbied the State Legislature to repeal New York's statutory religious exemption to the measles vaccine requirement for schoolchildren. During this lobbying effort, Day said the "anti-vaxxers" were "loud, very vocal, also very ignorant." He also said "There's no such thing as a religious exemption." 

While the district court granted the County's motion for summary judgment, the Court of Appeals (Lee, Park and Pooler) reverses,  holding that a jury might find that Day repealed the religious exemption out of anti-religious bias. The Free Exercise claim is thus reinstated. 

1. The Court holds that "a reasonable juror could find that Defendants acted with religious animus. Notably, Day testified that he issued the Declaration after Ruppert expressed concern over a rise in measles cases during the Easter and Passover holidays. Moreover, in connection with his lobbying for the repeal of a religious exemption to vaccination, Day commented that “[t]here’s no such thing as a religious exception” and characterized 'anti-vaxxers' as 'very ignorant.' Based on these facts, a reasonable juror could find the Declaration was designed 'to target religious objectors to the vaccine requirement because of their religious beliefs.' As the Supreme Court has recognized, the government 'cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices.'” The Court adds that a jury could also find there was no religious animus and that Day's statements were merely insensitive and not hostile toward religion. Since there are two ways of assessing Day's comments, this issue is for the jury.

2. The jury may also find the Declaration was not generally applicable and therefore noncompliant with the Free Exercise Clause. Plaintiffs argued that the medical exemption permits unvaccinated children for non-religious reasons to assemble in public places, but that the religious objectors cannot publicly assemble. The Court cannot tell on the summary judgment record whether the Declaration only affects children with medical exemptions and children with religious exemptions, or whether it affects other kids, such as those who are home-schooled or those who object to the vaccine on philosophical grounds. If it only affects children with medical and religious objections, then the Declaration is not generally applicable and would violate the Free Exercise Clause. The jury is going to have to sort this out.

Court rejects hostile work environment claim

There was a time when sexual harassment, while commonplace, was not a well-known phrase, and it was not until 1986 that the Supreme Court determined that such harassment is a form of sex discrimination under Title VII of the Civil Rights Act of 1964. In that case, Meritor, the Court said sexual harassment is actionable if it is severe or pervasive such that it alters the work environment for the worse. That is a steep standard, and many cases fail because the court decide that the harassment does not rise to that level. This is one of those cases.

The case is Estevez v. Berkeley College, a summary order issued on November 10. I argued the appeal and will try to be neutral here. 

The three plaintiffs claimed that (1) a female co-worker had an unusual obsession with their physical appearance and frequently made comments about the same, sometimes with an ominous tone; (2) a male co-worker often said there was "too much estrogen" in the office and he found an isolated location for perform his work, away from the women; and (3) a supervisor made comments suggesting his bias against working mothers. The district court said this is not enough for a Title VII case, and the Court of Appeals (Walker, Sullivan and Vyskocil [D.J.]) affirms. The case is over. Here is how the Court sees it:

Even if we assumed for the sake of argument that the conduct a reasonable person might consider severe or pervasive can evolve over time, as amicus curiae suggests, the conduct alleged here — primarily consisting of a female co-worker staring and frequently making backhanded compliments about the Employees’ clothes, bodies, and appearances, a male co-worker frequently commenting that there was too much estrogen in the room, and a male supervisor making  a  single  comment  arguably  evidencing  a  bias  against  working mothers — is not sufficiently severe or pervasive to support a hostile-work-environment claim.

An amicus brief, as noted, argued that the definition of sexual harassment can change over time to make additional offensive conduct actionable. Certainly the MeToo movement has reconceptualized our understanding of sexual harassment. The Court accepted that proposition as true for purpose of this appeal but still found the plaintiffs cannot proceed under Title VII. I argued that the Court of Appeals in 1998 said that close cases involving sexual harassment are for the jury as they represent the community and they are in a better position than judges to know when sexist behavior crosses the line and becomes actionable sex discrimination, compelling the Court to reverse summary judgment. That case is Gallagher v. Delaney. The Court in this case did not mention that argument in sustaining summary judgment.

In granting summary judgment, the district court said that this kind of workplace misconduct may have been "distasteful" but that the "estrogen" comment "is the sort of conduct ordinarily greeted with eyerolls or snappy comebacks." Plaintiffs argued on appeal that this observation improperly excused the bad behavior and put the onus on the plaintiffs to deal with it. But the Court of Appeals "find[s] nothing improper in the district court's remark."

 

State court strikes down COVID-19 mandate for public workers

A State Supreme Court Justice a few weeks ago struck down New York City's requirement that all City and private employees must be vaccinated for COVID-19. The directive was deemed arbitrary and capricious because the Mayor exempted certain private employees from the mandate.

The case is Garvey v. City of New York, issued by Justice Ralph J. Porzio of Staten Island Supreme Court on October 25. In October 2021, the City's Health Commissioner ordered that all City employees get at least one dose of the vaccine by October 29, 2021. The petitioners who brought this lawsuit work for the Sanitation Department. They were fired in February 2022 for failure to comply with the vaccine requirement. Meanwhile, the Commissioner extended this mandate to employees in the private sector. But the private sector mandate had exemptions for athletes, performers, and other artists. 

When you want to challenge a government mandate, one way to do so is through an Article 78 petition, which will succeed if the court finds the mandate is arbitrary and capricious. These petitions are difficult to win, as the government often gets the benefit of the doubt. Not this case. The petitioners win because the private employee exemption is not rational. The Court writes, "There is nothing in the record to support the rationality of keeping a vaccination mandate for public employees, while vacating the mandate for private sector employees or creating a carveout for certain professions, like athletes, artists, and performers. This is clearly an arbitrary and capricious action because we are dealing with identical unvaccinated people being treated differently by the same administrative agency."This mandate also violates the Equal Protection Clause of the New York Constitution.

The Court further notes that most of the plaintiffs here sough exemptions but received generalized or vague denials. "There was no reason that they could not continue to submit to testing and continue to fulfill their duties as public employees." Also, as of November 1, 2022, the private employee mandate was lifted. The Court writes:

Though  vaccination should be encouraged, public employees should not have been terminated for their noncompliance. Over 79% of the population in New York City are vaccinated. These unvaccinated employees were kept at full duty while their exemptions were pending. Based upon the Petitioners' vague denial of their exemption, the fact they were kept at full duty for several months while their exemptions were pending, the Mayor's Executive Order granting exemptions to certain classes of people  and the lifting of the private sector mandate, this Court find the Commissioner Orders of October 20, 2021 and December 13 2021 as well as the Mayor's Executive Order No. 62 to be arbitrary and capricious.

The mandate is stricken for other reasons, as well. The Court finds that the Health Commissioner acted outside his authority as only the Legislature can issue a mandate like this.I have seen other cases like this, mostly in federal court, where the government imposes a vaccine mandate on some but not all residents. This often arises in the religious discrimination context, but in this case the rationale for striking down the mandate is broader: the government permitted arbitrary exemptions not based on religion but instead to favor athletes and performers.

The result is the terminated employees got their jobs back with lost wages. The City has filed a notice of appeal to the Appellate Division, Second Department. It originally asked the Second Department for a discretionary stay of Supreme Court's ruling, but a few days later it withdrew that application, noting that Supreme Court made clear that its ruling was stayed in any event pending appeal.

 

Federal court strikes down parts of 2022 NY gun law

A federal  judge has enjoined the State of New York from enforcing parts of the 2022 gun safety law that the State Legislature enacted after the U.S. Supreme Court held that New York's prior gun laws were unconstitutional.

The case is Antonyuk v. Hochul, issued by Judge Suddaby of the Northern District of New York on November 7. The Concealed Carry Improvement Act of 2022 requires gun owners who want to carry a concealed weapon in public to (1) satisfy a "good moral character" clause, (2) provide a list of current and past social-media accounts, the names and contact information of family members, cohabitants, and at least four character references, (3) attend an in-person interview; and (4) complete 18 hours of in-person and "live-fire" firearm training. The law also provides a list of "sensitive locations" and "restricted locations" were firearms are prohibited, including churches and other houses of worship, libraries, bars, and public parks.

When the Supreme Court issued its New York Second Amendment case in June 2022, it created a new legal standard to review laws like this, holding that the government must identify a well-established and representative historical analogue to demonstrate that the constitutional framers in 1791 would have honored today's gun restrictions. In short, in order to defend a gun law, the government must show the firearm “regulation is consistent with this Nation's historical tradition of firearm regulation.” Moreover, "Regarding what and how many historical analogues constitute part of this Nation’s historical
tradition of firearm regulation, such an inquiry must begin by observing the principle that, 'where
a governmental practice has been open, widespread, and unchallenged since the early days of the
Republic, the practice should guide our interpretation of an ambiguous constitutional provision.'” This is a difficult legal standard to satisfy, and New York cannot do so, Judge Suddaby holds in issuing the injunction.

The good moral character clause violates the Second Amendment because it's too burdensome in that it turns on open-ended discretionary findings of "temperament," "judgment" and "trust." There is some evidence that a test like this was in place two centuries ago but the test was imposed on certain groups of people and could be avoided by taking an oath. As for the four character references, that requirement is not unconstitutional, as early America imposed a similar requirement on gun owners. But the requirement that you provide the names of family members does violate the Second Amendment, as the government can obtain this information on its own, making the requirement "exorbitant." What about the social media accounts? The concern is that a gun applicant may have posted something online that would show them to be a danger to themselves or others. Since there is no historical analogy for this requirement, and the state had not provided the court with examples of people who abused their gun privileges after making troublesome comments on social media, this provision violates the Second Amendment and even has some troublesome First Amendment implications.

As for the other provisions, the requirement that gun applicants provide “Such Other Information Required by the Licensing Officer that is Reasonably Necessary and Related to the Review of the
Licensing Application” is also unconstitutional, as it gives the government too much discretion in making its determination. The firearm training requirement is upheld however, despite any financial burden on gun-owners, as the U.S. has a historical tradition of imposing similar requirements. The in-person meeting requirement is also legal in the absence of any evidence that it poses a significant burden on gun owners. 

Finally, the restrictions on guns in certain public places, including places of worship. There is no historical analogy for some but not all of these restrictions. The church restriction is unconstitutional in particular may also infringe on the First Amendment right to participate in congregate religious services. The schools restriction is constitutional, as American history has traditionally banned firearms in schools. The public parks restriction is struck down as unconstitutional. While the New York law also prohibits guns at zoos, that restriction violates the Second Amendment, as there is no historical tradition in support of such laws. The prohibition against guns at bars and taverns, theaters, conference centers and banquet halls is also unconstitutional.

You get the picture. Second Amendment cases require the parties and the courts to engage in historical research to ensure that any gun laws are not inconsistent with American gun traditions. Judge Suddaby himself conducted research into this issue to the extent the parties did not provide enough information. Under the Supreme Court's recent Second Amendment cases, the legal standard adopted by the Court in reviewing these laws is quite difficult for the government to satisfy. Gun laws like the one passed in New York in 2022 will continue to be largely struck down.

Court of Appeals frowns upon sua sponte dismissals without notice to the party

Plaintiff filed this lawsuit pro se, alleging that a security guard at Trinity Church in Manhattan attacked him with chemical spray. He sued under Title VII, which makes it unlawful to retaliate against employees in certain contexts. The district court dismissed the case sua sponte, even before the Church made an appearance in the case, claiming plaintiff has no case and that he does not even allege an employer-employee relationship sufficient to proceed under Title VII. The Court of Appeals reinstates the case.

The case is Moroshkin v. Rev. Dietsche, a summary order issued on November 1. Here is how the district court summarizes the complaint:

The events giving rise to this complaint occurred on January 10, 2021, while Plaintiff was standing by the gate of Trinity Church waiting to receive a sandwich. The complaint sets forth the following facts. A security guard named Louis attacked Plaintiff “from the back by chemical spray used by military forces against active civilians in occupied territories to trace their movement and place of residence.” The chemical “bioweapon” caused Plaintiff to lose teeth and experience cardiac distress and chronic pain to his back and left leg. Later that evening, a black car came to Plaintiff’s temporary residence, and a person from the car shouted to Plaintiff’s landlord, “is Sergei living here?”

The district court held that even if these allegations were true, plaintiff did not allege he was an employee of Trinity Church. Hence, no Title VII claim. The Court of Appeals reverses, noting that "dismissing a case without an opportunity to be heard is, at a minimum, bad practice in numerous contexts and is reversible error in others." Since plaintiff did  not simply pay a filing fee to pursue "fantastic or delusional claims," the Circuit Court (Carney, Lohier and Nathan) says, the case is reinstated. The Court of Appeals does not address how plaintiff did not plead an employer-employee relationship, but I guess plaintiff will have a chance to replead his complaint on remand to the district court.