Tuesday, January 17, 2017

Courtroom closure during criminal trial was legal

Habeas corpus petitions are routinely denied by the federal courts because Congress in 1996 told them to defer to the constitutional judgments reached by the state appellate courts. This means the New York Appellate Divisions and the State Court of Appeals can get it wrong, but unless they get it unreasonably wrong, the conviction stands and the defendant remains in jail.

The case is Moss v. Colvin, issued on January 9. There are many ways to upset a criminal conviction. One way is to argue that that the trial court closed the courtroom during the criminal trial without a good reason. That's what Moss argues here. He was arrested for selling drugs. An undercover officer nailed him. Of course, undercover had to testify in court against Moss. But since undercover witnesses cannot show their faces, trial judges sometimes close the courtroom during their testimony. Since the State Court of Appeals upheld the conviction, the Second Circuit is his last resort.

Here is the test for determining whether the criminal court violated the Constitution in closing the courtroom:

(1) “the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced” if the courtroom is not closed, (2) “the closure must be no broader than necessary to protect that interest,” (3) “the trial court must consider reasonable alternatives to closing the proceeding,” and (4) the trial court “must make findings adequate to support the closure.”

The Second Circuit (Katzmann, Carney and Wesley) says the state courts got it right in finding the government had an excellent reason for closing the courtroom. The undercover officer continued to work in the area of the arrest (so that people attending the trial would know who he was), he had received numerous threats in the past, and he had encountered suspects in the courthouse. He also took steps to protect his identity when he entered courthouses. In finding the courtroom closure did not violate the Sixth Amendment right to a public trial, the New York Court of Appeals did not unreasonably apply the Constitution,

Tuesday, January 3, 2017

Some Privileges & Immunities action for y'all

The Privileges and Immunities Clause of the U.S. Constitution does not get much attention these days, but you can challenge state laws and regulations under that Clause if you are an out-of-stater and the state treats in-state people more favorably than you. That a simplified version of the P&I Clause but the point is that it ensures "the citizens of the United States [are] one people, by placing the citizens of each State upon the same footing with citizens of other States," even if people in those other states elect someone that we despise to the White House.

The case is Clement v. Durban, an Appellate Division ruling from December 21. Plaintiff is a personal injury victim. Her case was dismissed in State Supreme Court, so she wanted to take up an appeal. Since plaintiff moved to the State of Georgia while the lawsuit was pending, state law requires her to post a bond in case she loses the appeal and has to pay the defendant's costs. Is this legal? What about the P&I Clause, you know, the one that says we're on the same page, even if we live somewhere else?

The out-of-state bond requirement is legal. The Second Department summarizes how the P&I Clause works, but it cautions that strict equality is not required.

"This does not mean . . . that state citizenship or residency may never be used by a State to distinguish among persons.'" " Nor must a State always apply all its laws or all its services equally to anyone, resident or nonresident, who may request it so to do.'" "Rather, . . . the Privileges and Immunities Clause protects only those privileges and immunities that are fundamental.'"
New York imposes this out-of-state bond requirement to ensure that "if he loses the case he will not return home and leave defendant with a costs judgment that can be enforced only in plaintiff's home state." The rule protects the defendant "from frivolous suits and is assured that, if successful, he will be able to recover costs from the plaintiff."

While out-of-staters have a fundamental right under the P&I Clause to sue in New York, the Supreme Court said years ago that the Clause is satisfied "if the nonresident is given access to the courts of the state upon terms which in themselves are reasonable and adequate for the enforcing of any rights he may have, even though they may not be technically and precisely the same in extent as those accorded to resident citizens." This rule of law allows New York to require the Georgia plaintiff to post a bond to ensure the prevailing defendant will recover any costs expended on appeal.

The challenged statutory provisions do not deprive noncitizens of New York of reasonable and adequate access to New York courts. The requirement that a nonresident plaintiff who has not been granted permission to proceed as a poor person post the modest sum of $500 as security for costs is reasonable to deter frivolous or harassing lawsuits and to prevent a defendant from having to resort to a foreign jurisdiction to enforce a costs judgment. while the U.S. Supreme Court has never considered a direct challenge to a state statute requiring nonresident plaintiffs to post security for costs, it has cited such a requirement as an example of one that would not run afoul of the Privileges and Immunities Clause.

Friday, December 30, 2016

Ferrari's Farraari

This due process case is interesting because the Court of Appeals vacated a plaintiff's verdict and entered judgment for the County of Suffolk. The case is also interesting because the plaintiff's last name is Ferrari, and the case stems from the County's seizure of his Ferrari after Mr. Ferrari drove wildly while under the influence.

The case is Ferrari v. County of Suffolk, decided on December 27. Suffolk County had a law that allowed the government to seize your car if you violated the drunk driving laws. After the County seized the car, there was a post-seizure hearing intended to comply with the Due Process Clause, which restricts when the government can seize your property. The district court granted the County's motion for summary judgment, ruling that plaintiff had established the County routinely fails to prove that it needs to retain the cars even though the County establishes at these post-seizure hearings that the vehicle was used as the instrumentality of a serious offense, as well as evidence that the driver had previously been convicted of car-related offenses. The County also usually proves at these hearings that the driver poses a danger to the public with his car. The district court also ruled that the County did not address alternative measures to ease the hardship on the driver. Following this ruling, a jury awarded Ferrari $95,000 in damages to compensate for the seizure of his car. (News reports at the time said the plaintiff bears no family relation to the Ferrari company).

The Court of Appeals (Livingston, Leval and Carney) reverses and says Ferrari did not deserve to win the case and that the County is entitled to judgment as a matter of law. The Due Process Clause is basically a fairness clause. It says very little about what the government must do to protect you from unwarranted seizures of property or liberty. The rules for this derive from case law, as judges adopt multi-part tests to weigh the interests of citizens and the competing interests of the government. This case raises a new issue for the Court of Appeals, which poses the question this way:

when, at a retention hearing, Suffolk County presents evidence that a driver such as Ferrari has a history of intoxicated or reckless driving (evidence that serves to make out a prima facia case that retention pendente lite is necessary to protect the County’s financial interest and its interest in protecting the public) may the County, consistent with the Due Process Clause, then shift the burden of going forward onto the owner‐driver to point to a specific alternative measure that he is willing and able to sustain that might satisfy the County’s interests, and to demonstrate that such alternative measures would be feasible for him?
The answer to this question is Yes. Suffolk County's procedure is legal. The County may, after putting on prima facie evidence that it needs to immediately seize the car, require the driver to prove other feasible ways to protect the government's interests. In weighing the competing interests, the Court says that (1) the driver ma have an important interest in retaining the use of his car right after the arrest, but (2) plaintiff's interest in forcing the County disprove the feasibility of alternative measures to seizing the car is weak. "A requirement that Suffolk bear the initial burden of proving the infeasibility of alternative measures as part of its prima facia case does not greatly add to the protection already afforded such owners pursuant to Suffolk’s existing procedures." Also, the County's practice of requiring the vehicle owners to articulate an alternative measure does not have a material effect on the owner's interests because he already knows from County prior to the hearing that the availability of alternative measures will be discussed at the hearing.

You get the point. Each side must be given a fair shake at these hearings. Under the Due Process Clause, it does not take much for the government to give you a fair shake. Most of the Due Process Clause cases that I have seen over the years do not put the government through the ringer in this regard. Some fairness, even if that fairness is not compelling, is all it takes.   

Thursday, December 29, 2016

Employment retaliation 101

This case provides a good introduction into how employment discrimination cases are decided in the Second Circuit. The plaintiff alleges retaliation for speaking out on financial abuses, and brings this action under the Sarbanes-Oxley Act, which courts resolve under traditional employment retaliation standards.

The case is Yang v. Navigators Group, a summary order decided on December 22. The district court threw out Yang's case on summary judgment. The Court of Appeals (Leval, Sack and Raggi) revives the claim, and it heads to trial. Here is how the district court got it wrong:

1. The district court said Yang did not engage in protected activity when she communicated concerns about some investment risk models because she only offered her own deposition and affidavit testimony about her protected activity. But the Court of Appeals reminds us that this "self-serving" testimony is enough to create an issue of fact for trial. We do not need corroborating evidence if the plaintiff testifies from her personal knowledge that something happened. For more on this concept, see Danzer v. Norden Sys. Inc., 151 F.3d 50, 57 (2d Cir. 1998) and Walsh v. N.Y.C. Hous. Auth., 828 F.3d 70, 80 (2d Cir. 2016). This is an important pointt in discrimination/retaliation cases, as plaintiffs often find they cannot find corroborating witnesses, most of whom will disappear once the lawsuit is filed because they do not want to suffer their own retaliation for assisting the plaintiff-traitor.

2. The district court also said that plaintiff cannot prove she was fired because of her outspoken objections. She was fired two weeks after plaintiff opened her mouth. That is normally close enough to draw a retaliatory inference, but the district court said there was an intervening factor that cut off the causal connection: she gave a disorganized and incoherent presentation to defendant's senior executive team. Intervening factors can in fact kill off a retaliatory inference, and defense lawyers are always looking for this kind of evidence, but the parties here dispute what happened at that meeting. The jury has to resolve this evidentiary conflict, not the district court. As an aside, the district court relied on another district court case in support of its holding that the intervening cause entitled management to summary judgment. But that district court ruling has since been overturned by the Second Circuit, Sharkey v. JP Morgan Chase, 2016 WL 4820997 (2d Cir. Sept. 12, 2016).

3. Plaintiff also wins this appeal because defendant offered conflicting reasons for her termination. Those conflicting reasons suggest defendant was dissembling to shield a retaliatory motive. While defendant cites generalized performance concerns to justify plaintiff's termination, she was never told of these concerns during her employment. Rather, plaintiff says she was only told she was fired because she did not fit into defendant's "culture" and lacked a "hands on" approach to her position. This is an interesting holding. Usually, the "inconsistent explanations" theory of retaliatory or discriminatory intent involves different reasons offered by defendant once the case proceeds to litigation. In this case, we look at what management told plaintiff prior to her termination and compare it with defendant's explanations post-lawsuit.

Wednesday, December 28, 2016

A slew of sexist comments not enough for discrimination lawsuit

This female New York City police officer sued over gender discrimination. The issue is whether she presented evidence of intentional gender discrimination. The Court of Appeals says No.

The case is Camarda v. City of New York, a summary order decided on December 14. It looks like plaintiff was treated unfairly. Her evidence that this happened because of her gender is that (1) Sgt. Festa said that Sgt. Milone "was looking to hurt plaintiff and would give her assignments that would making the necessary arrests required by her job" and (2) Sgt. Festa was transferred for refusing to "participate in getting [plaintiff] with unnecessary discipline." You can work with evidence like this in building a case of gender discrimination, but the Second Circuit (Calabresi, Raggi and Lynch) says it's not enough. While this evidence suggests plaintiff was treated unfairly, we cannot assume it was motivated by gender because "defendants subjected male officers to some of the same disciplinary actions for some of the same actions for which Camarda was cited." That's a clunky way of saying plaintiff was treated no differently than then men.

We have a lot of sexist comments in this case, but none are enough to support the inference of gender discrimination. Plaintiff presents evidence that Sgt. Mai told her "you are a girl and you can't type." This can also support a claim of gender discrimination. But not in this case. Plaintiff does not dispute that her actions -- "contesting a superior's retype order after preparing a flawed summons" -- justified discipline. While this was an "insensitive" comment, it does not establish discriminatory motive.

There were other sexist comments in the record. Sgt. O'Leary "pointed at [her], said 'no low cut shirts' and ... was looking [at her]." This does not support plaintiff's case, either. The evidence shows that O'Leary's disciplinary action was based not only on plaintiff's dress but on her failure to have her memo book with her, in violation of department policy. Men were disciplined over this also.

Another gender-related comment: members of the department said they did not want plaintiff around because she is a female. The problem with this evidence is that it's hearsay and therefore inadmissible.

What do we learn from this case? A slew of stupid comments will not necessarily create a viable Title VII case. We have hearsay evidence to worry about. We also have sexist comments that refer to to the plaintiff's actual performance deficiencies, negating the import of the sexist comments. We have men who were disciplined over the same misconduct as plaintiff. This case could have been decided differently, I surmise.  

Tuesday, December 27, 2016

Circuit rejects constitutional claims arising from school district expulsion orders

Courts do not like it when dangerous or even potentially dangerous people want to enter a public school building. The facts of this case suggest to me that the Second Circuit was not about to give this guy any leeway.

The case is Jones v. Bay Shore Union School Free School District, a summary order decided on December 20. In the late 1980s, Jones coached the girls' softball team when the district had reason to believe he had sexually assaulted four students, prompting his resignation. In 1998, after plaintiff tried to reengage with the district as an NAACP representative, school officials barred him from the property. In 2008, when Jones' daughter was attending school in the district, the school allowed him to enter the school to participate in her education. A few years later, the district told Jones he could address the Board of Education in writing instead of doing so in person. A few years later, in 2012, the district said he could address the Board in person if he gave advance notice.

Jones sues the district, arguing that he was barred from school property in retaliation for his First Amendment activity: advocating on behalf of minority students. The Court of Appeals agrees with the district court: Jones has no case. True, Jones had engaged in First Amendment activity when he wanted to be the NAACP representative. But the district had legitimate concerns about student safety. While the school superintendent had initially been receptive to Jones' attempt to be the NAACP representative back in 2008, he changed his mind when he learned about the sexual misconduct allegations.

The Second Circuit (Winter, Jacobs and Cabranes) does not provide much analysis, but this looks like a Mount Healthy case, where the government can repel First Amendment claims by showing it would have denied the plaintiff an entitlement even if the plaintiff had not engaged in First Amendment activity. I sometimes see this as a judgment call by the courts. How do you figure out the hypothetical question of whether the government would have reached its adverse decision even without the free speech? In this instance, the Second Circuit solves that puzzle quickly.

Jones also sues under the Due Process Clause over the procedures he must follow to attend school board meetings. The Second Circuit doesn't see it. While Jones has to provide advance notice before attending the meetings, that is a de minimus burden in light of the district's interest in protecting students from someone who was discharged from teaching for suspected sexual misconduct with students.

Thursday, December 22, 2016

Discrimination verdict is upheld as 2d Cir. rejects jury instruction challenge

This case will be of interest only to lawyers who try cases in federal court. The Second Circuit applies a few interesting rules that can make or break the appeal for those of us unlucky enough to lose at trial.

The case is McFadden v. County of Monroe, a summary order decided on December 6. Losing at trial is awful, no matter what side you're on. Think about what it takes for a case to go to trial. The case proceeds to discovery for six months to a year, followed by motion practice, when each side tries to convince the judge either that you have a great case (plaintiff's argument) or there is no case at all and a jury trial would be a waste of time (defendant's argument). If the case cannot settle (most cases settle prior to trial) it means the parties have dug into their positions such that any settlement offer or demand is regarded as an insult and the other side can go to hell. In this context, hell is trial, where eight strangers sit in judgment of your clients. After a week of testimony and trial madness, the jury reaches a verdict. The losing side picks itself off the floor and looks for a way to bring an appeal.

Most jury verdicts are essentially unreviewable on appeal unless the lawyer can argue that the trial court did something wrong that denied you a fair trial. One way to do that is to challenge the jury instructions on appeal. A bad jury instruction can go a long way toward a meritorious appeal. But even those arguments can lose. That's what happened here.

This is an employment discrimination case. The jury ruled against the plaintiff, who relied on the Cat's Paw theory of liability. Cat's Paw is a judge-made doctrine that says if the decisionmaker is a nice guy who happened to rely on the recommendation of a racist or sexist supervisor in terminating your employment, you can win the case because the racist or sexist supervisor tainted the process. Judges like Cat's Paw cases because it allows them to drop a footnote telling us about the Aesop's Fable from which the Cat's Paw language derives. It has something to do with a monkey, chestnuts, a fire and a cat.

Plaintiff argues that he was denied a fair trial because the trial court did not charge the jury on Cat's Paw. He also argues that the court should have told the jury that a retaliation plaintiff can win his case with proof of "a convincing mosaic of circumstantial evidence that would support the inference that retaliatory animus was at work."

Let's look at the mosaic argument. This language comes straight from a Seventh Circuit case, Smith v. Bray, 681 F.3d 888 (7th Cir. 2012). The "mosaic" theory of discrimination proof has turned up in Second Circuit cases, as well. It's another way of saying the plaintiff can win the case with bits and pieces of circumstantial evidence that together make out a mosaic of discrimination. But the mosaic language is useful only for resolving summary judgment motions, where the trial judge decides if the plaintiff has enough evidence to win the case. "Mosaic" is not a legal standard. For that reason, the Seventh Circuit said in the Smith case that any judge who mentions "mosaic" in the jury charge will probably be reversed on appeal. Since the trial court in McFadden's case did tell the jury he can win the case on circumstantial evidence, the jury charge was OK.

Equally interesting, at least for the trial lawyers, is why the Second Circuit (Katzmann, Winter and Calabresi) rejects the Cat's Paw argument. Yes, Cat's Paw language can go into the jury charge. But it was not reversible error for the trial court to omit that language from the jury charge. Since McFadden did not object to the jury charge during the trial, he can only win the appeal if the omission was "plain error," which is another way of saying the trial judge totally blew it. The trial court did not blow it in this case because the Second Circuit had neither accepted nor rejected the Cat's Paw approach when the trial took place. Since plain error only exists when the the trial court's ruling was contrary to law at the time of the ruling, McFadden cannot win the appeal on this basis. Which means the verdict stands.