Billboard companies face an uphill battle in challenging sign laws

The other day I was driving to work along Route 17 in Orange County and passed by a billboard that had collapsed in the winter flood. "Good," I thought to myself. "I hate billboards."

Love them or hate them, billboards have rights. Limited rights. The case is Clear Channel Outdoor, Inc. v. City of New York, decided on February 3. Clear Channel has billboards in New York City. It challenged the City's rule against billboards within 200 feet of certain highways. Another plaintiff is Metro Fuel, LLC, which puts up smaller signs. Both argue that the City's enforcement regime has loopholes and inconsistencies that undermine the municipality's interest in regulating these signs. The Second Circuit (Wesley, Pooler and Keenan, D.J.) rejects these constitutional challenges.

Since commercial speech enjoys fewer rights than political speech, the City only has to advance a substantial (and not compelling) interest in regulating billboards. Aesthetics and traffic safety meet that test. Not only does the City have to advance merely a substantial interest, but it has great flexibility in satisfying that interest. "It must not be more extensive than is necessary to serve that interest," the Supreme Court has held. The City is not required to adopt the least restrictive means in regulating billboards.

This is a very difficult legal standard for commercial speakers to satisfy. While Metro Fuel argues that the City violates the First Amendment because the regulatory scheme is premised on a "radical urban design theory, "it is not this Court's role to role to second guess the City's urban planning decisions." Clear Channel's similar objection is also rejected for this reason.

Plaintiffs' next argument is that the City violates the First Amendment because "it distinguishes between their signs or billboards and those located on government property." This argument won't fly, either. The Second Circuit holds, "the Supreme Court has already rejected 'the argument that a prohibition against the use of unattractive signs cannot be justified on aesthetic grounds if it fails to apply to all equally unattractive signs wherever they might be located." While the City is not fully accomplishing its articulated objectives, the loose standard governing commercial speech restrictions means that the imperfect regulatory regime is not unconstitutional.

And so, the next argument advanced by these companies also falls. Behind plaintiffs' back, the City went out and contracted with another company, Cemusa, to place and maintain bus shelters, public toilets and newstands. While plaintiffs argue that "the City's contract to permit coordinated advertising on street furniture makes the Zoning Regulation unconstitutionally underinclusive," a comparable Ninth Circuit ruling puts this argument to rest. "We ... accept the City's argument that the controlled advertising regime established by its contract with Cemusa is sufficiently distinct from Plaintiffs' advertising that is subject to the zoning restrictions."

See how hard it is to challenge commercial sign regulations? The City can employ a particularly inartful scheme, and well-settled case law permits the City to do so. The Court of Appeals reminds us that "signs 'post distinctive problems that are subject to municipalities' police powers.' This is so because 'signs take up space and may obstruct views, district motorists, displace alternative uses for land, and post other problems that legitimately call for regulation.'"

Judicial criticism of lawyer's performance is not appealable

Attorneys who are sanctioned by the district court can appeal to the Second Circuit to vacate the sanctions. What about attorneys who are criticized by the district court? It happens all the time. Trial judges do throw barbs at the attorneys who practice before them, without actually issuing sanctions. Can that be appealed also?The answer is no.

The case is Keach v. McDaniel, decided on January 28. It all started when Keach, a lawyer, settled a class action suit against County of Schenectady. The County asked plaintiffs (represented by Keach) to hold off on implementing the settlement until after the Sheriff was re-elected. This written request was stamped "confidential - for settlement purposes only." It was also not supposed to be placed on the court docket. In other words, secret.

It did not work out that way. Plaintiff did not go along with the enforcement delay. But Keach asked the district court if that letter could be unsealed, and his letter to the judge revealed the content of the sealed letter. This went into the public docketing system, which meant the confidential request was public. Keach told Judge Treece that he wanted to unseal the letter in order to include it in support of his attorneys' fees appeal to the Second Circuit. When the judge denied the unsealing request, Keach sent this information (including the sealed request) to the Albany newspaper, which of course published the juicy details of the County's request that the settlement be enforced only after the Sheriff's re-election.

Judge Treece was not happy about any of this. He suggested that Keach did not really want to use the sealed letter for his appeal and that the real reason to unseal it was to send it to the newspaper. Making things worse, there was a dispute over what Keach said to the judge's law clerk. The clerk thought that Keach was accusing the judge of improper ex parte contacts with the defendant's lawyer. But rather than sanction Keach for this alleged misconduct, Judge Treece questioned Keach's candor and honesty and said his behavior was "troubling."

The rule is that you can appeal any sanction or a judicial finding that the attorney engaged in misconduct. "A finding that an attorney is guilty of specific misconduct is an adverse decision that can be appealed, even if the court decides that no additional punishment needs to be levied." But there can be no appeal here. What Judge Treece said about Keach was merely "routine judicial commentary or criticism" about a lawyer's performance. The Court of Appeals (Cabranes, Pooler and Lynch) says that "unlike the cases in which we and other Circuits have permitted appeals, the district court here did not make findings of violations of specific professional standards, refer the matter to disciplinary authorities, issue a reprimand, or declare that Keach was guilty of misconduct." What does it all mean? It means the Court of Appeals has no jurisdiction to even decide the appeal.

Involuntary commitment case is going to trial

Here's an interesting case. A man with a history of mental illness sued a public doctor who had him involuntarily committed after he allegedly threatened mental health officials who expressed skepticism over his claim that he had a sexual relationship with a case worker. The case is going to trial.

The case is Bolmer v. Oliveria, decided on February 8. The due process clause of the Constitution makes it illegal to lock you up in a mental institution against your will "if the decision to commit is based on substantive and procedural criteria that are ... substantially below the standards generally accepted in the medical community." Rodriquez v. City of New York, 72 F.3d 1051 (2d Cir. 1995).

On this legal standard, Bolmer brought the lawsuit after he was released from the facility after 15 days, when a staff member discovered that Bolmer had many text messages with the female case worker, seriously undercutting the preliminary diagnosis of erotomania (the delusional belief that you are in a sexual relationship with someone else). As mental health officials had a cursory meeting with Bolmer before committing him to the hospital and he did not yell or truly threaten any violence, Bolmer legitimately raises questions about whether he was a threat to himself or others. Of course, by this point, the hospital had injected Bolmer with anti-psychotic medication.

Who knows where the truth lies? The parties have different accounts over what happened when mental health officials questioned Bolmer about his alleged delusions. After the district court denied Oliveria qualified immunity, he appealed. The Court of Appeals can hear interlocutory (or premature) appeals on qualified immunity grounds, but not if qualified immunity is denied on the basis of disputed facts as opposed to the defendant's argument that the law is sufficiently unclear that he gets the benefit of the doubt on close constitutional issues. Since the district court denied qualified immunity on factual grounds, the Court of Appeals lacks jurisdiction to resolve the qualified immunity appeal on the merits.

Although the Court of Appeals (McLaughlin, Wesley and Kahn [D.J.]) has no jurisdiction to resolve Oliveria's defense, it does take the time to shoot down his argument that the Rodriguez case cited above is no longer good law in light of a subsequent Supreme Court case, County of Sacramento v. Lewis, 523 U.S. 833 (1998), which applies a "shocks the conscience" test for substantive due process claims. This is more stringent than the Rodriguez case, but the Second Circuit saves Rodriguez from the trash bin by pointing out that the Supreme Court in County of Sacramento said that "shocks the conscience" is "not a stand-alone test for determining whether particular executive conduct violates substantive due process; rather, it provides a framework for making such a determination." As the Rodriguez test is consistent with the Supreme Court's framework in resolving substantive due process claims, it remains good law.

One last point. Bolmer also proceeds under the Americans With Disabilities Act because defendants stereotyped him in committing him against his will. Defendant raised an Eleventh Amendment argument against enforcing Title II of the ADA in this context. (For the non-lawyers, the Eleventh Amendment has been interpreted to disallow lawsuits in federal court against the states unless Congress validly sets aside that immunity). The Second Circuit rejects that argument because Congress validly abrogated Eleventh Amendment immunity in authorizing Bolmer's claim against these officials. This is a complicated legal issue, boiling down the finding that Congress properly allowed people like Bolmer to sue the state in federal court where he makes out a Title II and Equal Protection claim arising from an involuntary commitment.

2d Circuit reinstates remedial NYC Human Rights claim

The New York City Human Rights Law prohibits employment discrimination, and you can invoke that law in federal court if you also sue under Title VII or the Age Discrimination in Employment Act. As a plaintiff you have more rights under the City law.

The case is Kolenovic v. ABM Industries Incorporated, a summary order decided on January 21. The federal and state law sexual harassment claims in this case were dismissed on summary judgment, and the Court of Appeals affirms because there was no evidence that the harassment was severe or pervasive, the well-known test under federal and state law. But on the same factual record, the City law claim survives. Why?

The New York City Human Rights Law was amended in 2005 to "abolish 'parallelism' between" the City Human Rights law and the state and federal civil rights laws. What this means is that these three laws no longer operate under the same standard. The City law is more favorable to plaintiffs, and the law specifically commands the courts to liberally interpret its terms. So, in Loeffler v. Staten Island Community Hospital, 582 F.3d 268 (2d Cir. 2009), the Second Circuit for the first time recognized this distinction, ruling in a non-employment disability rights claim that the federal/state laws are not coterminus with the City law.

In this case, the Court of Appeals (Jacobs, Sack and Hall) applies Loeffler to employment discrimination cases, reinstating the City sexual harassment claim which does not require "severe or pervasive" harassment but proof that "the plaintiff has proven by a preponderance of the evidence that she has been treated less well than other employees because of her gender ... and questions of severity and frequency reserved for consideration of damages.” Williams v. New York City Housing Authority, 61 A.D.3d 62, 78 (1st Dept. 2009).The Court of Appeals summarizes its reasoning:

Prior to the issuance of our decision in Loeffler, the district court evaluated Kolenovic’s Title VII, NYSHRL, and NYCHRL hostile work environment claims under the single “severe or pervasive” standard. We affirm the district court’s grant of summary judgment with respect to the federal and state law hostile work environment claims, but under the Restoration Act and Loeffler, the NYCHRL claim should have been evaluated separately from its federal and state counterpart claims. Accordingly, we vacate the district court’s grant of summary judgment with respect to the NYCHRL hostile work environment claim.

Batson challenge is forfeited

Mark Garraway went to trial in state court on a murder charge in 1997. During jury selection, the prosecutor tried to get rid of seven black jurors during voir dire. Garroway's lawyer made a Batson challenge, named after a Supreme Court case that says that blacks cannot be stricken from the jury because of their race. The prosecutor only explained his decision as to six of the jurors, which means that he never answered the seventh objection. Does Garraway have a legitimate habeas corpus challenge to his conviction?

The case is Garraway v. Phillips, decided on January 7. The answer is that Garraway does not have a challenge.

What happened during jury selection was this: the prosecutor tried to excuse seven black jurors (we call them venirepersons). Garraway raised the Batson challenge. While the prosecutor gave seven explanations, apparently one for each of the jurors he had tried to strike, one of the explanations was for a stricken juror whose strike to which Garraway had not objected. So in trying to do his job, the prosecutor was confused. He explained away a juror for whom there was no objection, and in doing so, he neglected to explain away a juror for whom there was an objection. As the Court of Appeals notes, "this omission was evidently missed by the prosecutor and the judge. Garraway noted his general 'exception' without objecting specifically to the prosecutor's failure to explain the seventh challenged strike."

Normally, if the prosecutor has no explanation (or an unconvincing one) for trying to excuse a black juror, the objecting party (the defendant) wins that argument and the juror remains on the case. Here, though, it's a little different. Garraway's lawyer did not properly object in a timely fashion. His general objection was not enough. He had to specifically tell the trial judge that the prosecutor did not explain why he wanted to excuse the seventh black juror. The objection is forfeited.

What do we learn from this? Really pay attention during jury selection. The opportunity to gain every advantage at trial is fleeting. The Second Circuit (Jacobs, Walker and Leval) recognizes the need for quick and specific objections:

This case illustrates the critical need for timely objection. Garraway was convicted in 1997 (over 12 years ago); the prosecutor, now living in Arizona, no longer specifically recalls the individual jurors; and the case file has been destroyed. A reconstruction hearing may no longer be feasible. The remedy of a new trial still would be available to Garraway, but there can be no remedy for venireperson Martin, who had a right to serve as a juror without suffering racial discrimination, or for the court system, which is alleged to have held a trial corrupted by racial bias. These considerations support the conclusion that a defendant forfeits a Batson objection unless it is made before the end of jury selection. These considerations justify finding forfeiture in this case as well.

"Context matters" in Title VII retaliation cases

The Supreme Court in 2006 (Burlington Northern v. White) made it easier for Title VII plaintiffs to prevail on their retaliation claims, ruling that an "adverse employment action" exists where it "could well dissuade a reasonable worker form making or supporting a charge of discrimination." What does it all mean?

The Second Circuit provides a good primer in Hicks v. Baines, decided on February 2. Hicks and two other plaintiffs worked for the New York State Office of Children and Family Services, mandated in part to protect children from violence and abuse. They supported a co-worker's discrimination charge against their supervisor, Baines, who in turn retaliated against the plaintiffs in the Hicks case. The district court granted summary judgment. The Court of Appeals (Jacobs and Cabranes) reverses and find jury issues on some of the retaliation claims. Not only does the Second Circuit look at the new retaliation standard from different angles, but the Court tells us when summary judgment affidavits are too conclusory.

In running through the legal standard for Title VII retaliation claims, the Court of Appeals quotes the Supreme Court in emphasizing that the objective standard in White ensures that not all workplace annoyances are "adverse employment actions." On the other hand, "context matters" such that a job action in one place of employment may be "adverse" under Title VII even though it may not meet that standard were it to surface in the office across the street. Of course, "even minor acts of retaliation can be sufficiently 'substantial in gross' as to be actionable.'"

The following claims in Hicks were too conclusory. (This is worth noting, and plaintiffs' lawyers should study this to ensure that their summary judgment affidavits pass muster):

“Defendant Baines, on numerous occasions, entered the E.R.C. after [Hicks] and his fellow Plaintiffs had secured the facility for the night to purposefully disturb the facility and compromise the security of the site in an effort to not only cause a poor reflection on [Hicks] and his fellow Plaintiffs’ job performances in securing the building, but also to further torment, harass and retaliate against them.” Hicks Aff. ¶ 29

“On or about May 9, 1998, [Hicks] discovered that the facility’s security had been compromised during the night by someone having the security codes and keys to the building (upon information and belief, Defendant Baines was in fact entering the facility during non-operational hours).” Hicks Aff. at ¶ 37.

The first paragraph may at first glance satisfy the "adverse employment action" test under White, but it is too conclusory. Apparently, plaintiff did not provide enough details to really set out how Baines tried to sabotage the workplace. The second paragraph fails because a plaintiff cannot avoid summary judgment "upon information and belief." You can put that in the Complaint, but "information and belief" is not evidence, and you certainly cannot testify in court that you know something happened "on information and belief." Other claims in Hicks' affidavit also fail. While he argued that Baines issued false memoranda about his job performance, the "affidavit ... explains neither circumstances leading up to the memoranda nor why the memoranda were false." These and other examples show how not to write a summary judgment affidavit.

Other portions of the summary judgment affidavit in this case suffice to avoid summary judgment, and they allege actions that are sufficiently adverse under the circumstances to satisfy the Supreme Court's ruling in White. Plaintiffs argued that Baines purposely left a window open which meant that Hicks could not set the facility alarm. Hicks got blamed for this. Judge Jacobs tells us why this claim can go to trial:

This claim withstands scrutiny under generally applicable principles of summary judgment. Context and averments demonstrate that this is no mere allegation that a window was left open. The open window prevented the security system from being armed. The window was behind a locked door; Baines had the key and knew that no one else did. The inability to arm the security system created risks that a vulnerable resident might wander out or become the victim of an intruder. These risks furnished grounds for discipline against whomever failed to arm the security system. And plaintiffs were in fact reprimanded notwithstanding that Baines was the only person in a position to lock the door with the window ajar.

A "punitive scheduling" claim is also good enough for trial under White. Baines manipulated Hicks' schedule to require him to attend mandatory training sessions during his time off and he also assigned Hicks to work in a facility where a juvenile inmate had brought a frivolous claim against Hicks and had threatened violence against his family members. Baines also required one of the plaintiffs to work alone, a hazardous assignment in light of the violent tendencies of some of the youths at the facility. This claim constitutes an "adverse employment action" and the affidavit is specific enough since plaintiffs provide the dates on which they had to work alone.

Wrapping up, the Court of Appeals fuses the evidence with the Supreme Court's emphasis on context:

plaintiffs’ surviving workplace sabotage and punitive scheduling claims, if believed by a jury, constitute “adverse employment actions” for purposes of the third element of plaintiffs’ prima facie case. Plaintiffs work (with a partner) in secure residential facilities where safety concerns are paramount. A reasonable employee in plaintiffs’ position “may well be dissuaded” from participating in a discrimination investigation or proceeding if he knew that in retaliation, he would be disciplined (though innocent) for failing to arm a security system that is needed to protect vulnerable residents, and/or that his work schedule would be changed such that he would have to work (alone) at a facility more dangerous and threatening than the facility at which he usually worked. In so reasoning, we give effect to White’s teaching that “[c]ontext matters.”

2d Circuit rejects constitutional challenge to New York's felon disenfranchisement laws

The Court of Appeals has rejected an ambitious lawsuit alleging that New York's felon disenfranchisement law is discriminatory in violation of the Constitution. The case is Hayden v. Paterson, decided on January 28.

This case has reaches the Second Circuit for the second time. In 2006, an en banc Court of Appeals rejected the claim that the law prohibiting felons from voting violates the Voting Rights Act. This time around the Court takes up an Equal Protection Clause argument. Like the Voting Rights Act claim, the constitutional argument focuses on the law's effect on minority voters.

The plaintiffs argued that "there is a history of race discrimination in New
York State’s disenfranchisement laws, that there is disparate application of New York State Election Law § 5-106(2), and that racial disparities exist in the disenfranchisement rates of Blacks and Latinos. Based on these allegations, plaintiffs contend that New York’s constitutional provision mandating felon disenfranchisement was enacted with the intent to discriminate against persons on account of their race in violation of the" Constitution.

The New York Constitution was amended several times in the 1800's. Prior to 1894, the Second Circuit finds, racial discrimination did partially motivate state lawmakers to prohibit felons from voting while incarcerated and on parole. We know this from racist statements that the legislators themselves made in support of these restrictions. Along with the racially disparate impact these laws have on blacks and Hispanics, this kind of historical evidence is a good start in arguing that the current disenfranchisement laws are unconstitutional. But the roadblock is the 1894 state constitutional amendment which prohibits felons from voting. Here is where Iqbal plausibility kicks in.

Iqbal was a Supreme Court decision from 2009 which says that lawsuits have to allege a plausible basis for relief. There is no doubt that Iqbal places a new burden on plaintiffs in pleading their cases. It is no longer enough to say that the complaint on its face alleges a violation. It has to plausibly allege a violation. Here, the lawsuit fails under Iqbal. While the 1894 constitutional amendment furthers the felon disenfranchisement rule, the Court says that it is more plausible that this happened for non-racial reasons because the Legislature was required to pass laws like this. Here is the heart of the Second Circuit's reasoning:

In 1894, however, the constitutional delegates made permanent the mandatory aspect of the provision, and felon disenfranchisement laws have been required in New York ever since. This amendment served to substantively change how legislatures were permitted to consider, or no longer consider, whether felon disenfranchisement laws should be passed—such laws were mandated. Given this substantive amendment to New York’s constitutional provision and the lack of any allegations by plaintiffs of discriminatory intent “reasonably contemporaneous with the challenged decision,” we cannot hold that plaintiffs state a plausible claim of intentional discrimination as to the 1894 constitutional provision, which is the bridge necessary for plaintiffs to sufficiently trace any disparate impact of New York Election Law § 5-106(2) “to a purpose to discriminate on the basis of race.”

So the mandatory nature of the 1894 felon disenfranchisement amendment cuts off the racially-discriminatory motive that had long fueled these laws in the 19th Century. What also makes racial discrimination less plausible for the current disenfranchisement laws is another creation of the Iqbal ruling: the "obvious alternative explanation" that most states prohibit felons from voting and its widespread support among New York politicians. After deliberating on the appeal for more than two years, the Court of Appeals (Straub, Walker and Pooler) concludes, "Absent any adequately supported factual allegations as to discriminatory intent behind the enactment of the 1894 constitutional provision, we are compelled to find that the New York Constitution’s requirement that the legislature pass felon disenfranchisement laws is based on the obvious, noninvidious purpose of disenfranchising felons, not Blacks or Latinos." The only good news for plaintiffs is that the Court of Appeals gives them a second chance to amend the lawsuit to amend their deficient complaint.