2d Circuit strikes down another provision of the NY Elections Law

The Second Circuit has held that New York's Election Law which prohibits the use of absentee ballots to vote for political party county committees violates the First Amendment. Over the years, many of the archaic and difficult election laws in New York have been struck down as unconstitutional and excessively burdensome. This is another one of those cases.

The case is Price v. New York State Board of Elections, decided on August 22. The plaintiffs include a candidate for county committee, a committee voter and the Albany County Republican Committee. The Second Circuit (Hall, Parker and Livingston in dissent) accepts the argument that the rule against absentee ballots burdens these plaintiffs in the exercise of their associational rights, either in running for the committee or selecting candidates of their choice. But the Second Circuit rejects the district court's holding that rational basis review applies in assessing the constitutionality of this omission.

The distinction between rational basis and heightened judicial review makes all the difference. The government nearly always wins under rational basis review because it can then defend the challenged provision on the basis of any justification whatsoever. Under heightened scrutiny, in contrast, the government needs a good reason to justify the restriction on associational rights. As the Court of Appeals summarizes the issue:

The defendants assert that pure rational basis review should be utilized in this case in reviewing the constitutionality of Election Law § 7-122. They are incorrect. Under [the] “flexible standard," the court must actually “weigh” the burdens imposed on the plaintiff against “the precise interests put forward by the State,” and the court must take “into consideration the extent to which those interests make it necessary to burden the plaintiff’s rights.” By contrast, under rational basis review, the plaintiff must “negative every conceivable basis which might support” the challenged law, even if some of those bases have absolutely no foundation in the record.

The Court holds that the plaintiffs' burdens under the prohibition against absentee ballots are "not trivial." The Court makes this determination because the record does not explain how, exactly, the plaintiffs' rights were burdened. Were they in the hospital at the time of the election, or were they merely on vacation?

The state does not advance a sufficiently convincing reason for the restriction. Or, as the Court puts it, "the State has put forward no substantive justifications for the restrictions imposed by Election Law § 7-122. Instead, the State relies exclusively on its contrived argument that tabulating absentee ballots could cause a delay in finalizing election results, which could interfere with the ACRC’s ability to nominate a candidate in situations where quick action was required." In other words, counting absentee ballots could interfere with the orderly functioning of the party -- nominating and appointing officeholders -- when time is of the essence.

This justification does not work for several reasons. First, the Albany County Republican Party is a plaintiff and is therefore willing to take the risk outlined by the State. Second, the possibility that absentee ballots would actually disrupt the orderly functioning of the political party is remote, and in any event, most of these elections are uncontested anyway. In addition, in case of an emergency, the political party's committee chair can make the appropriate nomination. The Court concludes, "the State has burdened the plaintiffs’ rights for a reason that is exceptionally and extraordinarily weak. While the burden on the plaintiffs’ rights is not large, and while our review is accordingly deferential, we nonetheless conclude that the state’s proffered reasons have such infinitesimal weight that they do not justify the burdens imposed."

Peace activist can litigate damages claim against upstate Town

The right of public assembly is enshrined in the First Amendment. But that doesn't mean the Constitution provides easy answers when municipalities regulate this activity. A recent decision by district judge William Conner in the Southern District of New York outlines the rules governing when public property is a "public forum" and whether towns and village may require people to obtain liability insurance in order to receive a permit.

The case is Coe v. Town of Blooming Grove, 2008 WL 2735861 (SDNY July 7, 2008). My office represents the plaintiff, a Reverend who wanted to hold a peace rally in October 2006 on public property in front of the library. The Town argued that this property was not a public forum, and it amended the zoning code to reflect that position. Relying on the Second Circuit's leading case on the issue, Hotel Employees v. City of New York, 311 F.3d 534 (2d Cir. 2002), Judge Conner disagreed after reviewing photographs of the property, holding that the lawn has the physical characteristics of a public park:

The property is a small but open grassy area in a prominent location in the Village. The Lawn is open to the public and is located between a sidewalk-another “quintessential public forum[ ],” and the local library, a public building. Although the absence of walkways and benches may limit the extent to which members of the public enter or remain on the Lawn, the presence of war memorials indicates a desire to attract visitors. All of this convinces us that the Lawn is a public park for purposes of this decision, making it “part of a class of property which by history or tradition has been open and used for expressive activity.”

The district court also ruled that the Town's insurance requirements violate the First Amendment. Many communities require parade organizers to take out insurance in case someone gets hurt and sues the Town. There is an exception to this rule, however, as outlined in a smattering of court decisions over the years: even content-neutral insurance requirements can improperly restrict speech if the municipality does not make an exception for the indigent:

“Freedom of speech, freedom of the press, freedom of religion are available to all, not merely to those who can pay their own way.” Thus, while the government may operate a permit system to regulate competing uses of a public forum, courts have not hesitated to strike down regulations that impose prohibitive financial costs on the exercise of First Amendment rights. . . . Specifically, several courts, including the Second Circuit, have held insurance requirements like those involved here unconstitutional as applied to persons who could not afford the premium.

After concluding that the Supreme Court requires an intermediate standard of scrutiny in reviewing these restrictions, Judge Conner ruled:

People of limited financial means who wish to exercise their First Amendment rights may not be shut out of the public square. Whatever marginal benefit the Town might derive from choosing not to exempt indigent persons from its insurance requirement does not justify the very substantial burden this decision placed on plaintiff's rights of freedom of speech and assembly.

A few other rulings of note in this case: first, the Town requires a permit for any group that wants to publicly assemble. Under precedents from around the Circuits, this requirement is not narrowly tailored to further the important government interest in placing the municipality on notice that crowds may gather, requiring a police presence. Since small groups do not place the same burden on government officials trying to keep order, the omission of any small group exception for the permit process violates the First Amendment.

Finally, a procedural issue. If the Town amends the ordinance during litigation, that tactic can moot out the suit. The Second Circuit used to hold that the district courts should address these challenges on the merits since the Town may revert to the offending provisions after the case ends. That case was National Advertising v. Town of Babylon, 900 F.2d 551 (2d Cir. 1990). The Court of Appeals has since modified that holding, ruling that the case is moot under those circumstances because we can assume that a Town board that votes to change the law it will not play these games when the case ends. Lamar Advertising v. Town of Orchard Park, 356 F.3d 365 (2d Cir. 2004).

The way around this is a damages claim. The plaintiff claimed that her inability to hold an adequate peace rally damaged her. The First Amendment recognizes that damages may result from the denial of speech rights. These damages may be low, but the case remains ripe for judicial review even if the challenged provisions have been repealed by the Town board. Although the defendants in this case twice amended the law to moot out the case, the damages exception to the mootness principle kept this case alive as to several of the claims.

False Claims Act cases cannot be handled pro se

False Claims Act cases are filed when someone thinks the United States is being defrauded. You sue on behalf of the U.S., technically representing the interests of the government. The question is whether a pro se litigant can do this? The answer is no.

The case is United States v. Flaherty, decided on August 19, the same day the Second Circuit dismissed another False Claims case because of an untimely notice of appeal.

The Court reminds us in a footnote that "The False Claims Act imposes civil liability upon 'any person' who . . . 'knowingly presents, or causes to be presented, to an officer or employee of the United States Government . . . a false or fraudulent claim for payment or approval.' A suit brought under the Act may be commenced by either the federal government or by a private person, or “relator,” who sues for the United States in a qui tam action." The plaintiff in a suit like this can keep some of the proceeds if the defendant is found to have defrauded the government.

The Court of Appeals has never squarely addressed the issue raised in this case. But it alluded to it many years ago, stating, "Although the False Claims Act does not specifically address whether private parties may bring qui tam actions pro se, . . . we have previously suggested that they cannot, albeit in dicta. See, Safir v. Blackwell, 579 F.2d 742, 745 n.4 (2d Cir. 1978) (positing that “a litigant cannot prosecute a qui tam action under [the Act] pro se”). Nevertheless, the proposition is a sound one." (Emphasis supplied).

In Flaherty the Second Circuit confirms what it hinted at in 1978. You need a lawyer to bring a False Claims (qui tam) action. The reason for this is that the plaintiff is representing the interests of the U.S. government. The case is not unique to the plaintiff, who can normally represent himself in such cases. Just as a layman cannot represent a corporation, he cannot represent the interests of the U.S. government in a False Claim suit, as the government remains a "real party in interest" even though the plaintiff may recover 30 percent of the proceeds for bringing the case. The court summarizes, "In short, while the False Claims Act permits relators to control the False Claims Act litigation, the claim itself belongs to the United States." Accordingly, "Because relators lack a personal interest in False Claims Act qui tam actions, we conclude that they are not entitled to proceed pro se."

The Court of Appeals follows the lead of the other appellate courts in reaching this conclusion, but it also notes a concern that the Federal government should not be bound by court rulings handled by non-lawyers.

False Claims appeal is untimely

Any federal practitioner knows that you have 30 days from the adverse court ruling to file a notice of appeal. But there is a loophole: if the United States is a party to the lawsuit, you have 60 days to file the notice of appeal. That rule seems simple enough, but it isn't. Today the Court of Appeals dismisses an appeal because the notice of appeal was filed too late, and the 60 day exception doesn't apply.

The case is United States v. City of New York, decided on August 19. The plaintiff brought a False Claims Act (qui tam) case against New York City. The claim has to do with the City's requirement that non-resident employees pay a fee equivalent to the municipal income taxes paid by resident City-employees. In cases like this, the U.S. has the option of joining the lawsuit. It didn't. Here's the question: is there a way to take advantage of the 60-day notice of appeal rule if the U.S. did not join the case?

The Second Circuit says no. The deadline for filing a notice of appeal is set out in the Federal Rules of Appellate Procedure. Under the plain meaning of that rule, the U.S. is not a "party" to the case, because it declined to intervene in the lawsuit. So how does the plaintiff get around this? By arguing that the U.S. is the "real party in interest." This is a term of art. As the Second Circuit reminds us, "Generally, the ‘real party in interest’ is the one who, under the applicable substantive law, has the legal right which is sought to be enforced or is the party entitled to bring suit. . . . The use of the 'real party in interest,' as a term of art, permits courts to intelligibly discuss those instances in which an individual with a substantive right must appear as a party to
litigate a claim, and those instances in which another may appear in his stead.”

Nice try, says the Court of Appeals. The rule outlining the deadlines for notices of appeal carefully avoids such language as "real party in interest" in setting forth when the 60 day rule applies. We know this because that phrase appears elsewhere in the procedural rules. Moreover, the whole point in allowing a 60 day deadline when the U.S. government is a party is to accommodate the slow process by which the government decides whether to appeal. That is not a concern here since the U.S. did not join the case in the first instance.

The moral of the story is that the rules should be taken literally. The federal rules are no place to carve out unique exceptions to general principles of procedure. That's why there are few "legendary" cases interpreting the federal rules. As the Court of Appeals advises in this opinion, if there is any doubt in a case like this, file the notice of appeal within 30 days and bypass the procedural questions that would normally follow if the other party may reasonably argue that the rules were violated.

2d Circuit rejects 9/11 case against Saudi officials

Representatives of the victims of the September 11 attacks sued members of the Saudi kingdom and leadership, including the Kingdom of Saudi Arabia, four Saudi princes, a Saudi banker and the Saudi High Commission for Relief to Bosnia and Herzegovina, claiming that they helped funnel money and logistical support to al Qaeda. They theory of the lawsuit is that "there would not be a trigger to pull or a bomb to blow up without the resources to acquire such tools of terrorism and to bankroll the persons who actually commit the violence.” Boim v. Quranic Literacy Inst., 291 F.3d 1000, 1021 (7th Cir. 2002). The case is dismissed under the Foreign Sovereign Immunities Act.

The case is In Re the Terrorists Attacks on September 11, 2001, decided on August 14. The FSIA protects foreign governments from lawsuits in the United States. “Under the Act, a foreign state is presumptively immune from the jurisdiction of United States courts; unless a specified exception applies, a federal court lacks subject-matter jurisdiction over a claim against a foreign state.” The FSIA is intended to prevent U.S. courts from interfering with foreign relations. The Second Circuit states:

Recognizing “the potential sensitivity of actions against foreign states,” the FSIA “aimed to facilitate and depoliticize litigation against foreign states and to minimize irritations in foreign relations arising out of such litigation.”

The question here is whether FSIA also protects individual officials of a foreign state acting in his official capacity, and not just foreign states. The Court of Appeals has never resolved this issue before, but other Circuits have, and the Second Circuit follows their lead, holding, "We join our sister circuits in holding that an individual official of a foreign state acting in his official capacity is the 'agency or instrumentality' of the state, and is thereby protected by the FSIA." Since FSIA prohibits these lawsuits against agencies of a foreign government, the Second Circuit interprets the law to include high ranking officials of those agencies, without whom the agencies could not function.

Court of Appeals upholds psychotherapist privilege in garden variety damages claims

An inmate sued corrections officers who allegedly used excessive force against him. The attorney general's office wanted his psychiatric records on the theory that the pro se inmate waived the privilege at deposition and the records were otherwise useful to probe his state of mind and that his mental state is at the heart of the case. The AG's office also argued that even garden variety emotional distress claims allow for the review of these otherwise privileged records. Not so fast, says the Second Circuit.


The case is In re Sims, decided on July 17. The Second Circuit has not yet resolved an issue like this, which explains the very lengthy decision granting the inmate's petition for an interlocutory appeal to resolve this discovery dispute. The Circuit does not entertain these appeals very often, preferring to wait until the case is over. The Court held that this issue is too important and that delayed review of the district court's contrary ruling could kill the privilege, which the Supreme Court recognized in 1996.


The inmate prevails on appeal because his Complaint is limited to damages for physical, not emotional, injuries. While the inmate hinted at emotional damages at his deposition, he was pro se and not sophisticated enough to object (and the district court denied his request for counsel). While the attorney general's office argued that the records could resolve whether he suffers from psychological problems and could have started the altercation, the Court notes that this argument would bury the privilege and require both sides in an excessive force case to produce their psychiatric records.


Most interestingly, the Second Circuit rejects the argument "that 'anybody' who requests damages for 'pain and suffering has waived the psychiatric privilege' ' because the psychiatric records might conceivably disprove the experiencing of the pain and suffering,' ' that even . . . 'garden variety' injury waives the psychotherapist-patient privilege,' and that a plaintiff's mental health is placed in issue whenever the plaintiff's claim for 'unspecified damages' may 'include some sort of mental injury.'" As the Court sees it, this argument would always require production of these records in order to test the plaintiff's credibility or some other probative reason. The strong public policy reasons for the privilege (encouraging people to open up to their psychotherapists without fear that these confidences will be revealed) override these concerns.

When can you sue under a pseudonym?

Under special circumstances, you can file a lawsuit anonymously. At least that's what other Court of Appeal have held over the years. That issue never came before the Second Circuit, which resolves the issue today.

The case is Sealed v. Sealed, decided on August 12. The plaintiff brought a lawsuit claiming she was sexually assaulted in violation of her civil rights. The district court dismissed the case for procedural reasons, including the plaintiff's failure to use her real name in the lawsuit. The Second Circuit reverses that dismissal and directs the district court to reconsider in light of the balancing test outlined below, taken from other court rulings around the country on the utility of pseudonyms in litigation:

We note with approval the following factors, with the caution that this list is non-exhaustive and district courts should take into account other factors relevant to the particular case under consideration: (1) whether the litigation involves matters that are “highly sensitive and [of a] personal nature”; (2) “whether identification poses a risk of retaliatory physical or mental harm to the . . . party [seeking to proceed anonymously] or even more critically, to innocent non-parties”; (3) whether identification presents other harms and the likely severity of those harms, including whether “the injury litigated against would be incurred as a result of the disclosure of the plaintiff’s identity”; (4) whether the plaintiff is particularly vulnerable to the possible harms of disclosure, particularly in light of his age; (5) whether the suit is challenging the actions of the government or that of private parties; (6) whether the defendant is prejudiced by allowing the plaintiff to press his claims anonymously, whether the nature of that prejudice (if any) differs at any particular stage of the litigation, and whether any prejudice can be mitigated by the district court; (7) whether the plaintiff’s identity has thus far been kept confidential; (8) whether the public’s interest in the litigation is furthered by requiring the plaintiff to disclose his identity; (9) “whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigants’ identities”; and (10) whether there are any alternative mechanisms for protecting the confidentiality of the plaintiff.

The district courts have discretion in applying this multi-factor balancing test. The case is now sent back to the Northern District of New York to apply it.