Abortion clinic protester's sentence might violate First Amendment

You don't see too much in the way of Seventh Amendment litigation these days. Here's one involving an anti-abortion protester who was convicted after a bench trial of violating the Freedom of Access to Clinic Entrances Act (FACE). He says that he deserved a jury trial. The Second Circuit disagrees. But it says the punishment might violate the First Amendment because the defendant has to stay 1,000 feet from abortion clinics.

The case is U.S. v. Dugan, decided on December 5. The Supreme Court says that under the Seventh Amendment, criminal cases get a jury trial if the defendant is charged with a "serious" and not a "petty" offense. The difference is that any offense that carries a maximum term of six months or less is presumed to be petty. You can overcome that presumption if additional penalties, such as a large fine, reflect a legislative determination that the offense is serious under the Seventh Amendment.

As the potential sentence for Dugan was six months, he can only win the appeal and get a jury trial if the fine is high enough under the Seventh Amendment. Although he faced a maximum penalty of $10,000, two other circuits hold that "FACE Act offenses like this one, i.e., nonviolent, first-time offenses, are not 'serious' and thus do not require a jury trial." The Court of Appeals agrees with those decisions and says that Dugan was not entitled to a jury trial.

For some reason, the Court of Appeals issues two decisions in this case. The jury trial issue gets a published opinion. The propriety of Dugan's sentence, though, gets a summary order. All the more strange since the summary order is a little more interesting, and the Court of Appeals says the punishment might violate the First Amendment. The district court ordered that Dugan cannot come within 1,000 feet of an abortion clinic. He was found guilty of blocking access to a clinic. "The testimony of the clinic’s security guard established that Puckett kneeled intentionally in front of the door to block it. ... The security guard testified that Puckett 'was kneeling directly in front of the door so the door could not have opened.' The security guard then indicated that the police arrested Puckett after he refused to move and that '[a]fter the police removed him . . . both staff and patients were able to enter into the clinic.'” OK, so Dugan is guilty. Is the penalty (stay away more than 1,000 feet from reproductive health facilities) excessive?

It might be. The Court wants the trial court to consider "whether the condition is narrowly tailored to serve a compelling government interest. Dugan had no prior notice that the condition might be imposed because it first was suggested in the government’s sentencing letter, submitted to the district court a day before the hearing and not copied to Dugan, who was proceeding pro se. On remand, the district court must determine whether the substantial limit on Dugan’s freedom of movement is 'reasonably related' to the government’s interest in deterring future violations of the FACE Act and in protecting the patients and staff of reproductive health facilities."

The Second Circuit also wants the district court to "consider Dugan’s history of protesting at reproductive health clinics, his First Amendment interests in free speech, as well as his statements that he has a 'duty' to prevent abortions. In addition, the district court must consider whether a stay-away distance of 1,000 feet (more than the length of three football fields) is narrowly tailored to the government interest where Dugan’s offense arose from the non-violent obstruction of a clinic entrance, and where, particularly in urban areas, the condition could significantly impede Dugan’s freedom of movement."

Supreme Court adopts "ministerial exception" to civil rights laws

The Supreme Court had a choice. It could honor Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination and retaliation, or it could honor the First Amendment, which prohibits government interference in the management of religious institutions. The Court unanimously goes with the First Amendment, identifying for the first time a ministerial exception to Title VII which prevents courts from resolving certain lawsuits against religious organizations.

The case is Hosanna-Tabor Evangelical Lutheran Church v. EEOC, decided on January 11. The plaintiff taught at a school that offered Christian-centered education, but her responsibilities include certain ministerial functions. After a dispute with her superiors over whether she could work despite her disability (narcolepsy), she threatened to sue for retaliation under Title VII. The Supreme Court says she can't do it under the ministerial exception. (The Second Circuit in 2008 adopted this exception in Rweyemamu v. Cole, 520 F.3d 198 (2d Cir. 2008)).

The Supreme Court has never had a case like this before, so it looks to the original intent of the Establishment Clause by drawing from decisions made by James Madison when he was both Secretary of State and President. Madison said that the government cannot tell religious organizations how to run their internal affairs. Older Supreme Court cases also hint at this in the context of disputes over church property. Chief Judge Roberts says that "[o]ur decisions in that area confirm that it is impermissible for the government to contradict a church' determination of who can act as its ministers." So here is the Court's holding in this case:

The members of a religious group put their faith in the handsof their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

Now, the plaintiff in this case was not technically a minister, but she did take on some ministerial responsibilities, like "conveying the Church's message and carrying out its mission," i.e., "leading others toward Christian maturity and teaching faithfully the Word of God, the Sacred Scriptures, in its truth and purity and as set forth in all the symbolical books of the Evangelical Lutheran Church." She was also "held out as a minister, with a role distinct from that of most of [the Church's] members." As plaintiff is a minister as defined by the Court, her calls falls under the ministerial exception, and she cannot proceed with the case.

So where does this leave us? What about church employees who are not ministers? Can they sue? The Supreme Court does not tell us, though it seems to broadly define who is a "minister" in defining the plaintiff's role. But the holding in this case is narrow; the Court says:

The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise.

Judge's private pow-wow with juror gets guilty defendant a new trial

What do you get when you put eight strangers in the same room together? At the U.S. Courthouse during a criminal fraud trial, you get madness, and a judge's ex parte meeting with a juror who complained that another juror threatened him with violence. All this prompts the Court of Appeals to grant the defendant a new trial because of the ex parte meeting.

The case is U.S. v. Collins, decided on January 9. The trial lasted for weeks, with 22 days of testimony. Jury deliberations took a while, too. They were marked by threats and raised voices which led a court security officer to see what was going on. Jurors began writing Judge Patterson notes complaining about the lack of collegiality and the possibility of a hung jury, which no one wants (except maybe the defendant) because that means you have to start all over again.

The juror notes are recited in the opinion. The Court of Appeals (Chin, Calabresi and Carney) focuses on the foreman's note that said Juror 4 might have been trying to barter his vote and Jurors 4 and 9 almost had an altercation. The note also said Juror 4 preferred a hung jury rather than "do further evidence research." This led the trial court to meet privately with Juror 4. Without the lawyers and the parties present, the judge told Juror 4 that his behavior was "not conducive to getting this matter resolved, and it is important to both parties that the matter be resolved." The juror said he was trying to deliberate but that it was hard to do his job when other jurors were calling him a "jerk" and "having my skin tone made fun of." The judge then told the juror to keep an open mind and try his best to deliberate. The jury went on to enter a guilty verdict on some of the charges.

New trial for defendant. This ex parte meeting amounted to a supplemental jury instruction, and it resembled an Allen charge, where a judge tells a deadlocked jury that it's important to reach a verdict. Supplemental jury instructions cannot be given outside the presence of counsel and their clients. This was not harmful error. Here's why, says Judge Chin:

We cannot say, with "fair assurance," that the district court's errors in this case did not substantially affect the verdict. The court singled out a dissenting juror, and emphasized to him the importance of reaching a verdict. We cannot ignore the possibility that Juror 4 walked out of the ex parte conference with the impression that he should not stand in the way of a prompt resolution of the case. Had the court initially shared the Note with counsel and solicited counsel's input before responding, any mistaken impressions might have been avoided.

Budget hotels denied injunction for lack of irreparable harm

The State of New York passed a law that makes it harder for property owners to rent hotel rooms for less than 30 days at a time. The idea was that building owners were circumventing strict fire safety standards applicable to hotels by renting out rooms for shorter periods of time under a loophole in the Multiple Dwellings Law. The state also wanted to prevent unfair competition to legitimate hotels and also to protect the rights of permanent occupants who have to live with short-term residents. A building owner challenged the law under the Takings Clause and sought an injunction. The district court denied the injunction, and the Court of Appeals agrees that the plaintiffs have not shown irreparable harm.

The case is Dexter 345, Inc. v. Cuomo, decided on December 5. Who knows if the plaintiffs have a legitimate Takings claim on the merits? The Court of Appeals does not address the merits. It finds that under the strict "irreparable harm" standard governing preliminary injunctions, the plaintiffs really only have monetary damages, which can be recouped at the end of the case. That's not irreparable harm. As the courts see it, monetary loss is not irreparable.

Plaintiff says it will suffer irreparable harm because it will lose goodwill with its customer base. The Second Circuit (Newman, Leval and Pooler) disagrees. The Dexter House has been operating since 1957 and Hotel Alexander since 2007. This is long enough for plaintiffs to calculate lost profits, based on previous rent figures. "The District Court correctly found that any loss of goodwill would result from the Appellants' inability to continue operating their budget hotel business as they had in the past. The long history of operation by both Appellants ensures that they will be able to calculate money damages for any loss of goodwill they may have suffered if a taking is found." This reasoning contrasts this case with those brought by less-established businesses who claim that calculating damages is too difficult and that the challenged regulation will destroy the business.

Plaintiffs also say that the new law will harm their reputation, as the law suggests that short-term budget hotels are unsafe and unwanted. But this kind of reputational harm is not irreparable, the Court of Appeals says. If plaintiffs are to get any damages, they have to endure discovery and a trial on the merits.

Circuit upholds $200k racial discrimination verdict under Section 1981

Here's an interesting racial discrimination case that produced a $200,000 jury verdict against a former police officer who hurled racial slurs at a black motorist and then initiated a fight with him, landing the plaintiff in a hospital. The Court of Appeals upholds the verdict under 42 U.S.C. sec. 1981.

The case is Wong v. Mangone, a summary order decided on December 6. The evidence showed that Mangone, a large white man, saw Wong, a black man, driving his car in Mangone's neighborhood. Mangone stuck his head in the window of Wong's car and made some vile racist comments about drug use and promiscuous sex by racial minorities. He basically told Wong to get the hell out of his neighborhood. Wong and Mangone then got into a fight. "The exchange quickly escalated to a physical fight involving a range of impromptu weapons, including the driver's side mirror of Wong's car, a circular saw, a metal pipe, a wooden broom handle, and a baton." Wong ended up face down on the ground. The facts were sharply disputed by the parties, but the jury awarded Wong $183,000 in compensatory damages and $17,000 in punitives.

The Court of Appeals (Cabranes, Livingston and Carney) upholds the verdict because there was enough evidence for the jury to find that Mangone violated Wong's right to be free from racial discrimination. What makes the case interesting is that Wong sued under Section 1981, which most of us associate with the right to be free from racial discrimination in contracts. Section 1981 is also used as an employment discrimination statute. But it also provides relief if you are denied the right "to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens." Private individuals can violate Section 1981, which is how Mangone got sued. As the Second Circuit notes, "a section 1981 violation may occur when a private individual injures 'the security of persons and property' in violation of a state law, and does so with a racially discriminatory purpose.'" Wong can invoke Section 1981 because Mangone violated state laws prohibiting assault and battery, "which are clearly intended for the 'security of persons."

This is a little-known protection under Section 1981. The only cases cited in the Second Circuit ruling in this case are district court cases from the Southern, Eastern and Western Districts of New York. Normally, when the Court of Appeals stakes out new ground, it will publishe an opinion rather than issue a summary order. The Second Circuit obviously agrees with this interpretation of Section 1981. Although this is an "unpublished" ruling, the Court is giving the go-ahead for federalizing certain torts claims if they involve race and assault or battery.

First Department rejects pretext-plus in City HRL discrimination claims

Lawyers who litigate under the New York City Human Rights Law know that this statute provides broader protection for plaintiffs than its federal counterparts, Title VII and the Age Discrimination in Employment Act. A recent decision by the Appellate Division, First Department drives that point home in squarely rejecting the pretext-plus model adopted by some federal courts, including the Second Circuit.

The case is Bennett v. Health Management Systems, decided on December 20. The facts in this case do not look good for Bennett. Management claimed it fired him for losing focus and drinking on the job. Bennett says he was fired because of his race (white) and age. The First Department uses this routine case as a vehicle to outline the burdens of proof in disparate treatment cases under the City Human Rights Law, ruling as follows:

1. The Court reiterates the oft-stated mandate "to ensure the liberal construction of the City HRL by requiring that all provisions of the City HRL be construed 'broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.'" Under that test, while the First Department approves of the Supreme Court's McDonnell-Douglas burden-shifting procedure, it emphasizes that the fourth prong of the prima facie inquiry -- whether the plaintiff was terminated under circumstances creating an inference of discrimination -- not require the plaintiff to prove his entire case. The First Department's approach invokes the Supreme Court's observation that the prima facie inquiry is not supposed to be onerous. Moreover, and more important, the Appellate Division says that if the employer comes forward with a neutral reason for terminating the plaintiff's employment, the prima facie inquiry is not necessary:

a court should ordinarily avoid the unnecessary and sometimes confusing effort of going back to the question of whether a prima facie case has been made out in the first place. Instead, the court should turn to the question of whether the defendant has sufficiently met its initial burden as the moving party of showing that there is no evidentiary route that could allow a jury to believe that discrimination played a role in the challenged action. We stop short of holding that there is never a circumstance under the City HRL where such an inquiry would be proper, but do conclude that such circumstances will be rare and unusual.

2. The Court rejects the pretext-plus model of proving discrimination. The Supreme Court says that if the employer comes forward with a false or pretextual reason why it fired the plaintiff, that does not compel the jury to find in the plaintiff's favor. The Supreme Court also said that the defendant can still get summary judgment in discrimination cases if the employer comes forward with a pretextual reason. (The First Department does not say this, but the Second Circuit usually looks for more than mere pretext for the plaintiff to win the case, usually evidence of disparate treatment or discriminatory remarks). But those Supreme Court cases interpreted Title VII, not the City HRL. The First Department says that under the City HRL,

Once there is some evidence that at least one of the reasons proffered by defendant is false, misleading, or incomplete, a host of determinations properly made only by a jury come into play, such as whether a false explanation constitutes evidence of consciousness of guilt, an attempt to coverup the alleged discriminatory conduct, or an improper discriminatory motive co-existing with other legitimate reasons. These will be jury questions except in the most extreme and unusual circumstances.

. . .

We recognize that there has been a growing emphasis on using summary judgment in discrimination cases to promote "judicial efficiency." But at least in the context of the City HRL, the Restoration Act provides a clear and unambiguous answer: a central purpose of the legislation was to resist efforts to ratchet down or devalue the means by which those intended to be protected by the City HRL could be most strongly protected. These concerns warrant the strongest possible safeguards against depriving an alleged victim of discrimination of a full and fair hearing before a jury of her peers by means of summary judgment. In short, evidence of pretext should in almost every case indicate to the court that a motion for summary judgment must be denied.

 Ironically, after outlining a pro-plaintiff approach to reviewing summary judgment motions in discrimination claims brought under the City HRL, the First Department finds that Bennett cannot win before a jury. There was undisputed evidence that he slept and drank alcohol on the job and his work performance left something to be desired.

Bergstein & Ullrich strike down anti-leafleting law

A federal judge in White Plains has held that a municipal law that forbids windshield leafleting violates the First Amendment in the absence of any evidence that the prohibition serves the government interest of avoiding litter. The trial court awards summary judgment to the plaintiff on his as-applied challenge against the Town and also orders a trial against two police officers who allegedly told the plaintiff he could not engage in face-to-face leafleting at a Community Day in Putnam County.

The case is Robinson v. Town of Kent, 2011 U.S. Dist. LEXIS 149255, decided by Southern District Judge Seibel on December 29. Bergstein & Ullrich, LLP, represents the plaintiff. It all started when Ernest Robinson showed up at Town of Kent Community Day on September 13, 2009 to hand out provocative leaflets that criticized a local judge. When Robinson placed these leaflets under the windshield wipers of parked cars in the parking lot, a police officer ordered him to cease and desist under a Town law that prohibited this kind of leafleting. Robinson did as he was told and removed the flyers from the vehicles. When Robinson next went into the park where the Community Day was situated for the purposes of leafleting members of the community, he testified that two police officers told him he could not do that, either. He sued under the First Amendment.

The district court ruling is in two parts. On the windshield leafleting claim, Judge Seibel adopts the reasoning of the Seventh, Eighth and Ninth Circuits, which hold that the "time, place and manner" test requires the government to prove that the windshield anti-leafleting law is justified by concrete littering concerns. (The Sixth Circuit went the other way on this issue). This makes Robinson v. Town of Kent the first case in the Second Circuit to strike down such a law, as the Town is only able to speculate that the need to prohibit littering outweighs the First Amendment right to leaflet. The Court states, "[t]he Town has not carried its burden. It has not shown either the reasons for the law's passage in 1973 or established a factual basis for concluding that leafleting on vehicles causes the problems the Town asserts. Although this Court can imagine an ordinance like Section 45-12 being justifiable, the Defendants in this case have not shown that the justifications apply here."As the law violates the First Amendment, the Town is liable because the police invoked it in telling Robinson to stop leafleting parked windshields. Robinson is granted summary judgment.

Robinson also claims that when he then went over to the public park where the Town was hosting Community Day, the police told him that he could not leaflet people face-to-face. Although the police deny that allegation, if the jury believes Robinson's testimony, then he wins that portion of his First Amendment case as well. That part of the case goes to trial.