Large menorah on City property does not violate Establishment Clause

A state appellate court has held that the City of Poughkeepsie could place an 18-foot menorah in the downtown business district near a Christmas tree and a display of the Muslim faith. But the court also holds that the City cannot use public money and labor for the nightly menorah lighting.

The case is Chabad of Mid-Hudson Valley v. City of Poughkeepsie, decided by the Appellate Division, Second Department, on August 31. You don't see too many Establishment Clause cases filed in state court, particularly in Dutchess County. These cases are usually brought in federal court.

This Section 1983 action involves the overly complex questions of whether the public display of religious symbols and lights violates the separation of church and state. The City wins on the claim that placing the large menorah on public property violates the First Amendment. Under the Supreme Court's crazy quilt of Establishment Clause legal standards, the plaintiff has to show that the menorah represented an endorsement of religion.

In context, the menorah does not represent such an endorsement because the public sidewalk location is in front of a privately-owned building and also near the Civic Center Plaza, also privately-owned. While the menorah is quite large, "it is set against the 'neutralizing secular background' of the five-story, commercial, and privately owned Barney Building. The City also wins the case because garlands, wreaths and white lights are nearby. Although these decorations go up for the Christmas season, believe it or not, the Supreme Court has held that these things, like Christmas trees, "typify the secular celebration of Christmas." Further negating any inference that the government is endorsing the Jewish holiday is the presence of a display of the Muslim faith in the form of a star and crescent. This is the kind of "big picture" analysis that favors the government in Establishment Clause cases.

But the City loses on a secondary claim. It is not allowed to use public money and employees for the nightly menorah lighting, even if private actors reimburse the City for these expenses. This fosters "the perception of an unconstitutional excessive government entanglement with religion."

Wiretapping in the iPhone age

So this is how people treat each other in the modern age. This case arises from a wills and estates dispute. Various family members, including in-laws, were visiting a dying mother. They met in the kitchen to discuss their different intentions about mom's will. For strategic advantage, someone tape-recorded someone else on an iPhone without his knowledge.

The case is Caro v. Weintraub, decided on August 13. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 makes it illegal to wiretap or record an oral communication for the purpose of committing a crime or a tort. The guy who was taped can sue the taper.

Caro cannot sue family member Weintraub. The Second Circuit (Cabranes, Wesley and Livingston) agrees that Caro is a "party" to the communication under the statute even though others were in the room. But in order to proceed with his case against Weintraub, Caro has to show that the conversation was intercepted "for the purpose of committing any criminal or tortious act." Here's the dilemma for the Second Circuit:

whether Title III requires that the claimant assert that the recording occurred with a separate and independent tortious intent, or whether the necessary tortious intent can be inferred from the act of recording itself. In other words, must a plaintiff plead that the defendant had intent to use the illicit recording to commit a tort beyond the act of recording illicitly or may the defendant merely have the intent to record and that alone is sufficient?

Other Circuits have taken up this issue. They have all held that the defendant must intend to use the illicit recording to commit a tort or a crime beyond the act of recording itself, such as blackmail or some other harmful act. The secret recording itself is not the requisite tort or crime. The Second Circuit adopts that view and therefore holds that Caro cannot sue Weintraub. While Caro argues that the independent tort was the violation of his privacy rights under Connecticut law, unfortunately for Caro, state privacy law does not reach that far. The closest privacy interest that Caro might assert is the "invasion of privacy by intrusion upon the seclusion of another." But Connecticut law recognizes no such right. Caro cannot sue Weintraub under Title III.

Due process cases are not fun anymore

Due process claims are not what they used to be. Back in the 1970s, a very different Supreme Court was breathing life into the due process clause with new rulings that clarified when and how the government could fairly take away your property and liberty interests. People called it the due process revolution. But it's not 1973 anymore.

The case is Chase Group Alliance LLC v. City of New York, decided on September 14. Here is the problem with due process cases. Due process is all about the right to be heard before the government takes your property or liberty interest. But few lawsuits are allowed to proceed under the due process clause because there is usually a built-in mechanism for you to be heard when you're about to lose the property interest. In other words, the due process clause today is enforced through laws and regulations that the government has to follow before it takes your property. The lawsuit is often dismissed because, by that point, you already had your due process. The lawsuit is redundant.

This case shows us how it works. The plaintiff owns properties in New York City. The tenants complained to the city about housing code violations. The City Housing Court has various procedures to follow. Among other things, an administrator is assigned to oversee the dispute, and he has authority to collect and use rents to remedy the code violations by, for example, ordering supplies and labor. The administrator can also take out a loan for this work, and that loan would place a lien on the property. This is where the plaintiff objected under the due process clause. The landlords claim that the administrator deprived them of their property interest without due process when he took out a loan in excess of $700,000, all of which the City deemed as a lien against the property. The landlords sued in federal court, claiming this lien violated due process.

The case cannot get out of the starting gate. It is dismissed under Rule 12(b)(6). The administrator cannot take out those loans and place the lien on the property without a state-court order. That court order cannot issue without notice to the landlord. Due process is nothing more than notice and an opportunity to be heard before your property is taken away. The landlords got due process long before the lawsuit was filed. They got due process when the state court issued the procedure that allowed the landlords an opportunity to be heard. As the Court of Appeals (Winter, Walker and Pooler) sums up, "It is hard to conceive of a remedy more attuned to appellants' claim than a court order preventing the imposition of a lien without a notice, hearing, and court approval. Indeed, such an order is much of the relief they seek in the present action. The Housing Court order, therefore, provided all the process that was constitutionally due at pertinent times." So plaintiffs got their due process, built into the initial lien process. That means they cannot sue under Section 1983 for relief in federal court. This is why due process cases aren't fun anymore.

Even criminals have constitutional rights

When a federal judge in Albany gave Warren Green supervised release that prohibited him from wearing street gang colors, he sued under the due process clause because that requirement was vague. He wins the case.

The case is U.S. v. Green, decided on August 13. The defendant is no angel, that's for sure. He went to jail as a cocaine dealer and was then caught in jail with drugs. He was given an additional sentence and then supervised release that said he could not associate with any street gangs or wear certain colors. Here's the actual court order: "The defendant shall not associate with any member or associate of the Bloods street gang, or any other criminal street gang, in person by mail (including email), or by telephone. this shall include the wearing of colors, insignia, or obtaining tattoos or burn marks (including branding and scars) relative to these gangs."

Even criminals have rights. Who knows where the twists and turns of constitutional doctrine will take us? The Constitution is complex, with nuances that are sometimes counterintuitive. You could argue that somewhere along the line we took a wrong turn at Alberquerque, so that some inmates have more constitutional rights than the police officers who arrested them. That's a function of the many legal tests governing the First Amendment, but the inmate/police officer paradox is another story.

It was legal for the district court to prohibit Green from associating with street gangs. But the restrictions against certain colors, tattoos, etc., are too vague to satisfy the due process clause, which requires precise clarity to ensure that the defendant is not tripped up accidently. The Second Circuit (Pooler, Katzmann and Livingston) says:

The range of possible gang colors is vast and indeterminate. For example, the L.A. Police Department’s explanation of gang colors and clothing includes “white T-shirts,” “blue or black or a combination of the two,” red, green, black, brown and purple. ... Eliminating such a broad swath of clothing colors would make his daily choice of dress fraught with potential illegality. People of ordinary intelligence would be unable to confidently comply with this condition.

UConn gadfly has no free speech claim

The Court of Appeals has dismissed a First Amendment claim filed by a high-ranking public employee who spoke out against his public university's policies, holding that his employer's interest in efficient management outweighs the plaintiff's right to speak out on matters of public concern.

The case is Faghri v. University of Connecticut, decided on September 17. Faghri was Dean of the School of Engineering. He became an outspoken critic of many of the university's policies, and the Second Circuit (Leval, Hall and Murtha [D.J.]) give us the laundry list. For example, he publicly objected to the university's plans to establish a regional campus in Dubai, and he opposed plans to close out the university's School of Family Studies and other programs. He also accused the university of mismanaging funds. Six categories of public objections in all. Faghri was a gadfly. The college probably thought he was a pain in the ass. It made him resign his deanship, but he retained his teaching position.

In 1968, the Supreme Court held in Pickering v. Board of Education that public employers can discipline subordinates who speak out on matters of public concern if the speech in some way disrupted workplace or governmental efficiency. We call this Pickering balancing. Faghri falls victim to Pickering balancing. The Court of Appeals rules that "because the deanship of the School of Engineering is an executive, policymaking position, the management of the university was entitled to have such a position occupied by one who voiced support for, or at least did not voice opposition to, the university's policies. It was therefore entitled to remove Faghri from that position for publicly opposing the university policies." In other words, while the man on the street can say these things, and Faghri can even say these things in his capacity as professor without fear of retribution, his managerial position restricts what he can say under Pickering.

This is not the first time the Second Circuit has rejected speech claims by high-ranking public employees in this context, but it's been a while since we saw a case like this. The mid-1990s saw a few such cases, including McEvoy v. Spencer, 124 F.3d 92 (2d Cir. 1997), and Faghri's case ties this doctrine together in a fairly bright-line way. Managerial employees in the public sector had better get with the program and put a lid on it if they want to avoid discipline. Their free speech rights rest on a very thin reed at this point.

Maybe you do have a right to own a chuka stick

More than a year ago, the Second Circuit rejected the argument that the Second Amendment affords you the right to own a chuka stick. In summarizing that decision, I headlined the blog post, "You have no right to own a chuka stick." That was before the Supreme Court breathed life into the Second Amendment.

The case is Maloney v. Cuomo, decided on August 13 by summary order. As I wrote in January 2009, "A chuka stick (also known as a nunchakus) is a crude weapon that 'consist[s] of two or more lengths of a rigid material joined together by a thong, rope or chain in such a manner as to allow free movement of a portion of the device while held in the hand and capable of being rotated in such a manner as to inflict serious injury upon a person by striking or choking. At least that's how the New York Penal Law defines it." The Court of Appeals rejected Maloney's case because, at the time, the Second Amendment did not apply against the States, only the Federal government.

In McDonald v. Chicago, the Supreme Court ruled in June 2010 that the Second Amendment does apply to the States. Maloney had the foresight to file a petition for Supreme Court review after he lost in the Second Circuit. When the Supreme Court issued its ruling in McDonald, Maloney rode that wave. The Supreme Court granted Maloney's petition for the purposes of immediately sending it back to the Second Circuit. The Court of Appeals now sends it to the trial court without analysis. So maybe we really do have a right to own a chuka stick.

We trust the jury on "joint employer" question

It's been said that you can only have one master. This means you have only one employer. But that's not really true. Under the labor laws, you can sue joint employers that are not bound by any official relationship so long as, among other things, the second company also controls your labor. This why many plaintiffs suing for minimum wage and overtime violations name more than one employer as defendants. The more the merrier.

The case is Zheng v. Liberty Apparel Company, decided on August 10. The case reaches the Court of Appeals because 25 Chinese garment workers prevailed at trial in alleging that their actual employer -- Lai Huen Yam -- and a joint employer -- Liberty Apparel -- basically ripped them off and denied them proper compensation. Liberty delivered partially-finished clothes to Yam's factory in Chinatown, and plaintiffs would finish the clothes by sewing the fabrics together and adding buttons, labels, cuffs and hems. The Liberty company regularly sent quality control people over to Yam's factory to supervise plaintiff's work. So, while Yam was technically plaintiff's official employer, it was as if they also worked for Liberty.

Liberty Apparel claims on appeal that the jury should not have decided whether Liberty was a joint employer, and that only the trial court should have made that decision. This is actually a mixed question of law and fact, as we apply the legal standard to a particular set of facts. Having lost at trial, this point was really one of Liberty's last non-frivolous arguments before they have to pay up in this protracted litigation. The Second Circuit (Jacobs, Parker and Hall) trusts the jury on these issues and affirms the verdict:

FLSA claims typically involve complex mixed questions of fact and law ... The jury’s role was to apply the facts bearing on the multi-factor joint employment inquiry to the legal definition of joint employer, as that term had been (properly) defined by the district court in the jury charge. “[M]ixed questions [of law and fact] are ‘especially well-suited for jury determination ...’”

While Liberty argued that the trial court should have given the jury a special verdict form "so that the jury could detail its factual findings regarding the various joint employment factors, and so that the district court could then have applied those findings to make the final determination as to joint employment," that would "distort" the jury's role of applying facts to law and, in any event, "appellate courts rarely--if ever--vacate for failure to use a special verdict form."