Wednesday, August 12, 2020

Federal judge says Covid-19 crowd restriction cannot prevent upstate wedding

A federal judge in Syracuse has enjoined the State of New York from enforcing a Covid-19 crowd restriction that prohibits 50-person "non-essential" public gatherings, including weddings. The Court rules that this restriction may violate the Constitution because other similarly-sized gatherings are legal, and the state cannot justify this distinction. The case is limited to weddings that take place in restaurants, and it does not allow all weddings to proceed.

The case is DiMartile v. Cuomo, issued by Judge Suddaby on August 7. This is the second Northern District ruling that strikes down a Covid-19 crowd restriction on constitutional grounds. Plaintiffs argued that the 50-person restriction is selective because the state allowed other crowds for mass demonstrations, outdoor graduation ceremonies, and indoor special education classes. Plaintiffs framed the issue as a religious freedom, free speech, and equal protection claim.

Since the lawsuit was filed in 2020, and there has been no discovery, plaintiffs seek a preliminary injunction, which the court cannot grant unless plaintiffs demonstrate a "likelihood of success on the merits" and irreparable harm without an immediate ruling. In other words, a preliminary injunction allows the plaintiff to win the case right away, but only if the case is compelling. Some judges will hold an emergency evidentiary hearing on the issues before issuing such a ruling, but Judge Suddaby resolved this case on the papers, focusing solely on the equal protection claim.

The court rules in plaintiffs' favor because "the State has failed to adequately rebut Plaintiffs' argument that a 50-person limit on a social gathering is not consistent with Defendants' allowance of exemptions to the 50-person gathering restriction for activities such as dining at restaurants and participating in graduation ceremonies." The judge finds that a wedding (prohibited) is not unlike dining in a restaurant (permitted), and plaintiffs say the wedding will have appropriate health and safety measures, such as mask-wearing and social distancing. Since there is no rational basis to distinguish between weddings and restaurant gatherings, the wedding prohibition violates the Equal Protection Clause.  

The Court notes that it is not suggesting that any wedding (such as the typical wedding that predated Covid-19) is sufficiently similar to the typical dining experience that all weddings should be allowed to proceed in any manner. This case is unique, the Court says, because "the Plaintiffs' chosen venues are already operating as functioning restaurants in addition to wedding venues and thus the unequal treatment is happening as a result of two different uses of the same venue." What the Court is doing is ruling that "a wedding that follows all the same rules that would be applicable to the given venue for dining when that venue is operating as a restaurant should not be treated differently than a restaurant."

Monday, August 10, 2020

Inmate exonerated from prison disciplinary violation cannot bring federal due process claim

I know that federal judges love their jobs because they write opinions like this which parse constitutional case law in determining whether state prison regulations governing gang symbols violate the Constitution. The Court of Appeals sides with the state in this case, but not before taking a deep dive into whether an inmate was properly disciplined for possessing photographs of family and friends depicting perceived signs of gang affiliation.

The case is Williams v. Korines, issued on July 20. This case arose from Shawangunk Correctional Facility, which five or six miles down the country road from where I write this. Plaintiff was sent to solitary confinement for six months after a prison hearing found him guilty of possessing "gang insignia or materials" in the form of these photographs. The photos showed people with their hands in certain configurations that prison officials thought promoted the Crips. I note that one way that plaintiff defended himself at the hearing was to introduce magazine pictures of celebrities posing with their hands in the same position, to prove that there was nothing gang-related about these pictures.

Plaintiff wisely challenges his punishment on the basis that the state rules governing this misconduct are too vague and did not place him on notice that the photos were illegal. The Court of Appeals agrees the regulations contain broad language, but it also finds any reasonable inmate would have interpreted them to prohibit material associated with the Crips, as he had previously been punished in 2012 for possessing a birthday card that referenced the Crips' favorite color, blue. While the rules also prohibit the possession of "gang-related material," the court is not sure that rule prohibits non-written materials such as photographs,  but it finds that someone like plaintiff would have known that it included photographs.

Plaintiff also brings a due process challenge to the disciplinary findings of guilt. After the first hearing,  a state court granted his Article 78 challenge to those findings, and the case returned to the prison for a second hearing, where he was again found guilty. But the second findings of guilt were actually vacated by the Director of Special Housing because "circumstances surrounding the incident raise questions [about the] inmate's culpability." So plaintiff was cleared, a rare occurrence in the state prison system, I can tell you that.

While the first hearing may have been a due process violation, his confinement in solitary resulted from the second, undisturbed, finding of guilt. So the first hearing's challenge is moot. As for the second hearing, while plaintiff was ultimately cleared, that does not mean he has a due process claim under the Constitution. Innocence of any state regulatory violation does not translate to a constitutional violation, the Court of Appeals says, and plaintiff has not established, at least for due process purposes, that he did not receive proper notice of the disciplinary violation, or that the documentary evidence against him was tainted or unreliable for constitutional purposes. 

Friday, August 7, 2020

Circuit revives religious objections to New York same-sex adoption rules

New York State said a private adoption agency was violating state anti-discrimination rules in refusing to allow unmarried and same-sex couples from adopting children. The private agency said these rules violated its rights under the First Amendment, in particular the free speech and religious freedom clauses. The district court dismissed the case, but the Court of Appeals revives the case.

The case is New Hope Family Services v. Poole, issued on July 21. New Hope has a religious objection to allowing unmarried and same-sex couples from adopting children. So the agency refers these families to other adoption providers. This case is decided in the middle of the culture wars brewing in these United States of America, where the Supreme Court recently held that Title VII prohibits discrimination on the basis of sexual orientation and gender identity, and religious groups are finding ways around governmental mandates.

The Second Circuit notes that the Supreme Court has stated that the Constitution protects religious objections to gay marriage, and the exercise of religion includes both belief and expression as well as "physical acts," such as assembling for religious purposes. Supreme Court rulings also hold that the government cannot interfere with religious principles if the rules demonstrate hostility toward religion. Nor may the government discriminate on the basis of religion in subtle ways. 

This case cannot be dismissed at this time, at least not prior to discovery, because the complaint alleges that New York is demonstrating religious animosity toward New Hope's religious principles against adopting children to unmarried and same-sex couples. State regulations do not require adoption agencies to approve adoption by any persons, and the state did not object to New Hope's practices for years before finally doing so in 2018. You might think that New Hope is violating state policy against this kind of discrimination, but New Hope is not the kind of "public accommodation" that must adhere to the anti-discrimination rules. The Court of Appeals also thinks that people from the State Office of Children and Families have made statements demonstrating hostility toward New Hope's religious principles, i.e., that some adoption providers have decided to compromise (their religious principles) to stay open. However we may interpret these comments, under the plausibility test guiding Rule 12 motions to dismiss, the Court of Appeals believes these comments are enough to prove religious hostility by the state.

We also have a free speech claim, the Court of Appeals (Raggi, Cabranes and Korman [D.J.]) says, because state policy might constitute compelled speech requiring New Hope to tell potential parents that it would be in the child's best interest to be adopted by an unmarried couple or same-sex couple. This compelled speech would violate New Hope's core religious beliefs. 

The case is remanded to the district court to determine whether New Hope is entitled to a preliminary injunction that would exempt these rules from plaintiffs like New Hope. 

Thursday, August 6, 2020

Kangaroo prison disciplinary hearing yields victory for inmate in Second Circuit

Inmates do have rights, you know. That includes rights arising from their discipline. You can't just punish an inmate for breaking prison rules. There has to be a hearing with a neutral decisionmaker, though the hearings are not quite like the ones we have outside the prison context. Still, the procedures have to be fair, even taking into account the deference prison officials enjoy in managing the inmates and the facility itself. Inmates rarely win their appeals from adverse disciplinary rulings, and rarer still are successful federal lawsuits arising from these disciplinary proceedings. This case presents the rare victory for the inmate.

The case is Elder v. McCarthy, issued on July 23. While a disciplinary hearing found that plaintiff had stolen money from another inmate's account by forging his name, a state court ruled the adverse findings were not supported in the record. Plaintiff now claims in federal court that the hearing violated the Due Process Clause because he received inadequate notice of the charges against him, there was no evidence proving his guilt, he was denied access to witnesses, and he was denied the assistance needed to defend himself. The inmate does not win on all of these claims, but he prevails on some of them, and that makes this case notable.

We have a series of rulings in this case. First, while plaintiff was entitled to have a correction officer assist in rounding up witnesses for his defense (something inmates cannot really do since they are locked up and cannot Sherlock Holmes their way around the facility), the officer assigned to assist plaintiff did not take the steps necessary to help him by, for example, reviewing the proper prison records that might have exonerated him. The record is so clear on this point that the Court of Appeals holds that plaintiff wins this claim on summary judgment, which is the first time I have seen this in the Second Circuit.

Another officer who was assigned to help plaintiff prepare for the hearing may have violated the due process clause in not carrying out plaintiff's reasonable requests to obtain copies of the documents that plaintiff was accused of forging. The officer even had a duty to review records that might not have been legally made available to the inmate. Nor did the inmate have enough time to review the records that were made available to him at the hearing. 

Procedural violations are one way to challenging adverse findings. But plaintiff also claims the evidence was not sufficient to support the findings. This is a much more difficult burden, particularly in the prison context, where administrators and hearing officers are given the benefit of the doubt and federal judges really don't like getting involved in disputes like this. But the Court of Appeals says the evidence against plaintiff was not sufficiently reliable to support the adverse finding, as the evidence the plaintiff had forged another inmate's name to get his money the entire proceeding rested on the false assumption that theft and forgery had actually occurred, and there was no direct evidence that the victim had even complained of forgery and theft, or that money was taken from his account against his will. 

Plaintiff can get damages for these violations, as the law was clearly-established that rights like this cannot be infringed. Interesting how this holding is reached at a time when immunity is the talk of the town in the police context and many civil rights lawyers complain that courts are defining "clearly established" too narrowly and allowing law enforcement off the hook. But here we are. There are cases on point that support plaintiff's claims, and that is enough to pierce the immunity. 

Tuesday, August 4, 2020

Court affirms arbitration award against two union members

Usually, when a claim goes to arbitration and the losing party asks the federal court to vacate that ruling, the appellant loses. Federal courts don't like to interfere with arbitrations. It is the parties who agree to arbitrate in the first place, and the whole point of arbitration is to keep the case out of court in the first place. So these appeals usually lose. Like this one, though it may seem unfair to the employees who are bound by the ruling.

The case is ABM Industry Groups, LLC v. International Union of Operating Engineers, issued on July 29. When Company 1 was sold to Company 2, the employees (who were also members of the union) learned they would not have jobs with Company 2. John Phillip and Eugene Clerkin were among those employees, so Company 1 gave them termination pay, accrued vacation and sick pay, pursuant to the union contract. But then Company 2 decided to hire Phillip and Clerkin. Company 1 then next demanded that these guys pay back the termination and accrued vacation pay, classified by Company 1 as "inadvertent wage overpayment." You can imagine how this demand went over with Phillip and Clerkin.

This dispute went to arbitration, and the arbitrator ruled that these guys had to repay Company 1 some of that money. Company 1 filed suit in federal court to confirm that award, and the union opposed that motion, arguing that the award was improper because it imposed obligations on Phillip and Clerkin, who were not parties to the arbitration; only the union was such a party.

The district court agreed with the union's position, but the Court of Appeals (Winter, Calabresi and Chin) reverses and holds that while the guys were not present at the hearing, they had manifested their intent to be represented by the union and to be bound by any arbitration award. 

Case law holds that "employees are bound by arbitration decisions and settlements of grievances by union representatives," even if the individual employees were not signatories to the agreement. Since the union contract states that the union was the exclusive bargaining agreement for Phillip and Clerkin, and correspondence in the course of this dispute confirms the union was representing their interests in the proceeding, the arbitrator's award is binding on these guys. I don't know who will have to pay out the arbitration award to Company 1, but under this ruling, that amount will be paid by someone. And they will not be happy about it.

Monday, August 3, 2020

Another broad ruling from the First Department on the New York City Human Rights Law

Here is another example of how the New York City Human Rights Law is far more expansive than federal and state disability laws. The First Department says that Sloan Kettering Hospital may have violated the city law in not taking seriously the plaintiff's request for her disability accommodation.

The case is Hosking v. Memorial Sloan Kettering, issued by the First Department on June 18. The general outline guiding reasonable accommodation law under federal, state and city law is similar: if you have a disability and cannot perform certain job functions, the employer has to accommodate you if the accommodation does not create an undue burden on management and the accommodation does not eliminate an essential job function. But we have significant differences in these laws. 

Under the Americans with Disabilities Act, as well as state and city law, the employer must engage the employee in the "interactive process," which means the parties have to try in good faith to find a reasonable accommodation. If the employer does not take that obligation seriously, but there is no reasonable accommodation available to the employee in any event, there is no separate lawsuit against the employer under federal and state law. In 2009, the First Department held in Phillips v. City of New York, 66 A.D.3d 70, that the employer's failure to engage the employee in a good-faith interactive process violates the New York City Human Rights Law, which expressly mandates more expansive civil rights protections than federal and state law. But the New York Court of Appeals rejected that interpretation in Jacobson v. New York City Health & Hosp. Corp., 22 N,Y.3d 837 (2014). This led the City Council in 2018 to amend the City law to codify the holding in Phillips and reject the contrary holding in Jacobson.

Under the 2018 law, the City law characterizes the "interactive process" as "cooperative dialogue." It means the employer must "engage in good faith in a written or oral dialogue concerning the person's accommodation needs," including any alternatives to the requested accommodation. These differences between federal, state and city law may make life confusing for HR departments, but the city has the right to create greater protections for plaintiffs in the civil rights context. This means additional training for managers and supervisors to ensure that employees are not suffering employment discrimination, and it means that briefs and legal memos are longer because they contain separate sections dealing with the different laws that may govern the employment relationship.

The record here permits the finding that the employer did not engage in a good faith cooperative dialogue in responding to plaintiff's request for a reasonable accommodation. The employer simply told plaintiff (whose disability prevented her from performing certain doorman functions at the hospital) that she did not fit within "the new model" at the facility and she should apply for another position within the hospital. The First Department concludes with this statement:

There is no rule that an employer has to engage in the process for a certain number of days or that it ultimately has to give the employee what the employee is demanding. However, the process has to be held in good faith and the essential functions of the position need to be part of the interactive process the law requires, not a unilateral employer decision cloaked by business judgement. Indeed, what happened here "is a long way from the framework of cooperative problem solving based on open and individualized exchange in the workplace that the [Americans with Disabilities Act [ADA] intended." 

Thursday, July 30, 2020

Here is how qualified immunity works on appeal

Police misconduct cases usually do not lend themselves to summary judgment motions, especially when the plaintiff claims the police subjected her to excessive force. These cases cannot be resolved on paper unless there is something unusual about the case that prevents a jury from ruling for the plaintiff. Or the police can seek summary judgment on qualified immunity grounds, claiming they did not violate clearly established law. If that motion fails, the police can take an immediate appeal, one of the rare instances where a pre-trial appeal is permissible. That's what happened here. This strategy worked for one officer, but not the second officer.

The case is Lennox v. Miller, issued on July 29. After the police charged plaintiff with endangering the welfare of a child following her alleged physical confrontation with some neighborhood teenagers who were hanging around plaintiff's troublesome ex-boyfriend, she claims the police handcuffed her for no reason and subjected her to excessive force. She wanted to pull away from the officer at this time but was unable to do so because he was too strong. In the end, the handcuffs were too tight, and she claims the police pushed her to the ground so hard that she urinated herself and also bashed her head to the ground.

The district court denied summary judgment on qualified immunity grounds. You normally cannot appeal from the denial of summary judgment in federal court. You can do so in state court, which has different appellate rules, which is why the state appellate courts are so backed up that you'll wait over a year for oral argument in the Second Department. But the federal rule has a major exception: the denial of qualified immunity can be appealed right away - if, and only if, the municipal defendant can show that even on the plaintiff's facts, the defendant did not violate clearly established case law as handed down by the Supreme Court and the Second Circuit.

So what happens here: the Court of Appeals (Hall, Lohier and Park) says that the officer who assaulted plaintiff cannot win the appeal because, viewing the facts in her favor, the officer violated clearly established law, which is that police officers cannot subject people to the gratuitous use of force, whether it's with the officers fists, or with a Taser. Second Circuit cases are now holding that all uses of force, even through innovative and novel technologies, like Tasers, are treated like traditional use of force cases. Force is force. So no qualified immunity for the officer whom plaintiff says subjected her to excessive force.

There was a second police officer on the scene who did not intervene to prevent the first officer from violating plaintiff's constitutional rights. The second officer was also denied qualified immunity. On appeal, the Court of Appeals says this officer is entitled to that relief because there is no evidence to suggest that he had any realistic opportunity to intervene but failed to do so.