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."

Law prohibiting jury nullification signs near the courthouse is not unconstitutional

This guy would stand outside the Bronx County courthouse with a sign that told passersby to "Google jury nullification." He wanted people to know that juries can render verdicts that would reject unjust laws. Judges do not tell jurors about jury nullification, and state law prohibits communications like this within 200 feet from any courthouse, as it might influence jurors to wreak havoc on the system. Does this law violate the First Amendment?

The case is Picard v. Magliano, issued on July 27. Picard was arrested for the sign, but the charges were dropped because it was unclear if he stood within 200 feet of the courthouse. He sues to strike down the law, arguing that he can be used against him again. The Court of Appeals therefore provides an extended discussion on plaintiff's standing to even bring the case, determining that he does have standing under the principle that "if a plaintiff's interpretation of a statute is reasonable enough and under that interpretation, the plaintiff may legitimately fear that it will face enforcement under the statute, then the plaintiff has standing to challenge the statute."

The State of New York is defending the case, having taken up the appeal in the first place, as the district court said the law violates the First Amendment on its face. The state does not disagree that, as applied to plaintiff, the law might be unconstitutional, perhaps because there were not trials going on the day he was arrested or no proof that any jurors were influenced by his sign. 

So the question is whether the statute is unconstitutional on its face. The Court of Appeals (Lynch and Park) says it is not unconstitutional, at least not on the limited preliminary injunction record before the district court. (In dissent, Judge Newman says the law violates the First Amendment on its face). While the law is a content-based speech restriction in that it prohibits placards dealing with jury nullification and nothing else, the statute is narrowly-tailored to satisfy a compelling governmental interest. While this is the most difficult legal standard to overcome in constitutional law, the state is able to preserve the statute because the compelling interest is preserving the integrity of the justice system in ensuring that jurors issue verdicts on the facts and law and not based on their personal beliefs. The statute is also narrowly-tailored because it only prohibits such speech close to the courthouse.