Huminski v. RUTLAND COUNTY SHERIFF'S DEPT.Huminski v. RUTLAND COUNTY SHERIFF'S DEPT.
Pietro J. Lynn, Heather Elaine Thomas, Lynn & Associates, P.C., Burlington, VT, Joseph Leon Winn, Vermont Attorney General‘s Office, Montpelier, VT, Paul L. Reiber, Reiber, Kenlan, Schwiebert & Facey, P.C., Rutland, VT, for Defendants.
(Papers 120, 123, 125, 128, 132, 145)
MURTHA, District Judge.
Plaintiff Scott Huminski brings this lawsuit under
On February 27, 2001, the Court granted Huminski‘s motion for a preliminary injunction and temporarily barred Defendants from enforcing the trespass notices if they “are based solely upon Huminski‘s public expression of his political opinions so long as the expression does not disrupt or threaten the orderly performance of court business.” See Huminski v. Rutland County, 134 F.Supp.2d 362, 366 (D.Vt.2001) (Paper 67). Huminski now seeks a permanent injunction by moving for summary judgment. Defendants, asserting various immunity defenses, oppose Huminski‘s motion and also move for summary judgment.
Because there is a genuine factual dispute whether Defendants Nancy Corsones, M. Patricia Zimmerman and Karen Predom caused the trespass notices to be served due to legitimate concerns about courthouse security, or, instead, because of their disagreement with the views expressed by Huminski, the Court DENIES the motions of those Defendants. Given the factual dispute, however, the Court also finds there is no reasonable likelihood Plaintiff will prevail on his claims for declaratory and permanent injunctive relief. Accordingly, the Court DISSOLVES its prior grant of preliminary injunctive relief (Paper 67).
Finally, for additional reasons clarified below, the Court DENIES Plaintiff‘s motion for summary judgment and GRANTS summary judgment in favor of Defendants Elrick and Rutland County Sheriff‘s Department.
I. Background
As this case is now before the Court on cross-motions for summary judgment, the following facts, except where noted, are undisputed:3
On May 24, 1999, at approximately 7:30 a.m., Scott Huminski legally parked his van in a public parking lot located immediately adjacent to the Vermont District Court building at 92 State Street in Rutland, Vermont. The land on which the parking lot sits is owned by the State of Vermont.
Displayed on one side of Huminski‘s van were three posters, measuring 45 inches by 54 inches, on which was written:
JUDGE CORSONES, BUTCHER OF THE CONSTITUTION
• STRIPS DEFENDANTS OF RIGHT TO DEFENSE COUNSEL
• REINSTITUTES CHARGES VIOLATING ART 11, CH 1, VT CONST.
• PUNISHES PROTECTED EXPRESSION WITH CRIMINAL CHARGES
• MALICIOUSLY DISREGARDS DOUBLE JEOPARDY BY REINSTITUTING CHARGES AFTER CONVICTION AND FULL PUNISHMENT
• SUBVERTS DUE PROCESS BY VACATING BINDING PLEA AGREEMENT POST-PUNISHMENT
• UNCONSTITUTIONALLY PUNISHES DEFENDANT FOR SEEKING REDRESS OF GRIEVANCE IN CIVIL COURT
• IGNORES AND ENCOURAGES PROSECUTORIAL VIOLATIONS OF THE CODE OF PROFESSIONAL RESPONSIBILITY
The signs caught the attention of Rutland County Deputy Sheriffs Mark Beezup and Steven Schutt, who were stationed that morning at the District Court. After the deputy sheriffs determined that the van belonged to Scott Huminski and observed him seated in the front of the van, they requested he remove the signs from the van or move the van to another space in the parking lot. Huminski refused, telling them he planned to observe judicial proceedings in the District Court.
Huminski had no scheduled cоurt appearance that morning, but he had a prior history with the Vermont criminal justice system, in particular with Judge Corsones. Judge Corsones presided over State v. Huminski, Docket No. 203-2-97, a criminal case brought in Vermont District Court in Bennington, Vermont in 1998 by Bennington County State‘s Attorney William Wright. In the course of that proceeding, on September 3, 1998, Judge Corsones granted the State‘s motion to vacate as “involuntary” a plea agreement that would have resolved two obstruction of justice charges filed against Huminski.4 The next day, September 4, 1998, Huminski — evidently upset by the ruling — filed a formal complaint against Judge Corsones with the Vermont Judicial Conduct Board.5 Huminski later sued Judge Corsones in Vermont Superior Court for alleged violations of his constitutional rights.6
In addition to his formal efforts to challenge Judge Corsones and the State‘s handling
One of the letters, undated and addressed to Cindy Maguire, Chief of the Criminal Division of the Attorney General‘s Office, contained the fоllowing:
As it is the policy of the State of Vermont to encourage and allow crimes to be committed against myself and my wife without fear of prosecution I must take the law into my own hands and initiate activities that will get national media attention.... Vermont‘s policies ... have destroyed my life.... A State cannot target an innocent citizen for destruction. When the smoke clears, the nation will wonder what went wrong in Vermont. Hopefully that inquiry will prevent you from doing this to someone else.
* * * * * *
You might achieve [State‘s Attorney William] Wright‘s goal of driving us out of Vermont (or killing us) and attaining my destruction, not without a fight. The conflict has begun. My demise won‘t be in vain. There will be national publicity and an outside investigation. Its [sic] odd how people like you who wonder why citizens form militias and arm themselves, now I know why. The government does target people for purely political reasons and the criminal justice system and law enforcement is a tool used by corrupt agencies to kill innocent civilians. For twenty months I have given the State multiple opportunities to prove that my assumptions in this letter were wrong, now its [sic] time for action as the State has revealed that corrupt policies are in place at the highest levels. Bill Wright‘s policies are being obeyed by the attorney general‘s office. No justice. No fairness. No constitution. No rights. Someone will be held accountable.
Paper 127, Ex. 2.
The other letter, dated September 3, 1998 and addressed to Vermont Attorney General William Sorrell, read, in part:
This State is crooked to the core. Your willingness to pervert the law of the State of Vermont for the purpose of attacking one person is criminal. I believe the state will prevail in its goals, however, I believe my future activities will prevent the state from engaging in this behavior ever again. I require a response to my previous correspondence by noon today. Continued evidence of your corrupt behavior requires that I accelerate my activities.
Id., Ex. 3.
In addition to the two letters, Huminski also sent at least three other letters to Corsones concerning her handling of his criminal case. These letters were sent by tele-facsimile to Corsones’ former law office, where her then-husband worked as an attorney.
Finally, on numerous occasions priоr to May 24, 1999, while Judge Corsones presided over cases at the Vermont District Court in Bennington, Huminski engaged in protests in the courthouse parking lot. These protests, not unlike the activities of May 24, entailed parking his van in the courthouse parking lot with signs expressing his opinions on the side of the vehicle facing the building. During the protests, however, Huminski‘s signs never criticized Judge Corsones; they criticized the conduct
While in her District Court office in Rutland on the morning of May 24, 1999, Corsones learned from Schutt that Huminski‘s van was parked in the lot immediately outside the courthouse with signs attached criticizing her judicial conduct. Schutt also expressed his concern to Corsones about Huminski‘s presence. Corsones then met with Defendant Karen Predоm, the Clerk or Court Manager of the District Court, and explained the following: (1) Corsones was concerned about security at the courthouse because of Huminski‘s presence that morning; (2) Huminski was protesting over a prior case in Bennington in which Corsones had issued a ruling against him; (3) he had previously sent faxes of a threatening nature to her then-husband‘s law office in Rutland concerning her handling of Huminski‘s criminal case; (4) he had protested the State‘s handling of his case by placing signs on the outside of his van while parked at the District Court building in Bennington; and (5) due to her concerns about security, Corsones was unwilling to take the bench that morning — despite a heavily-scheduled docket — unless Huminski left the District Court building.9
In addition to the information she learned from Corsones, Predom also saw the signs on Huminski‘s van when she parked her car that morning at the District Court building.
After Corsones and Predom conferred about Huminski, they spoke over the phone with Ed Polk, the chief of security for all Vermont courts. Predom told Polk she was concerned the van posed a security threat to the courthouse, in part because it was parked quite close to the building and the van‘s windоws appeared
At about this time, Defendant R.J. Elrick, a Deputy Sheriff of the Rutland County Sheriff‘s Department, while at work at the Department‘s office at 79 Center Street in Rutland, learned Huminski was at the District Court in Rutland. Elrick also was informed Huminski had parked his vehicle in the court parking lot with signs on it and court staff had expressed concern for their safety. Shortly after receiving this information, Elrick proceeded to the District Court on State Street. Although he saw Huminski‘s van at a distance on approaching the District Court, and observed there were signs on the van, he was never close enough to read any of the signs.
Inside the District Court building, Elrick was told by Corsones that Huminski was the individual she previously warned Elrick about as a potential security concern. Elrick already knew the following about Huminski: (1) Huminski had regularly protested outside the District Court in Bennington and thus created “a sense of fear amongst the employees of the courthouse in Bennington that hе was there to intimidate them“; (2) Judge Corsones presided over a criminal case brought against Huminski and held concerns — which she expressed to Elrick — about courthouse security in Rutland because of Huminski‘s behavior in the aftermath of the case; and (3) the Bennington County Sheriff‘s Department distributed an “officer safety bulletin” to the Rutland County Sheriff‘s Department indicating Huminski was a potential security concern in light of his past behavior at the courthouse in Bennington.
At about 8:30 a.m., Predom contacted the Rutland City Police Department to request Huminski be served with a trespass notice and Rutland City Police Officer Robert Emerick responded. Following Predom‘s instructions, Emerick filled in the blank spaces on a form entitled “Notice Against Trespass,” writing that Huminski was not to “enter ... or remain upon ... properties controlled by or utilized by the District Court including all parking areas ... [e]xcept you may enter only when you have a written notice from the Court directing your appearance or if you have made prior arrangements or permission of the Court Manager.” Paper 127, Ex. 5. Predom signed the form as “owner/tenant” for the District Court in Rutland, and listed her title as “Court Manager.” Id.
At about this time, Predom called Defendant M. Patricia Zimmerman, a Vermont District Court judge who was presiding over the State Family Court at a different courthouse in Rutland. Predom asked Zimmerman to swap dockets that morning with Corsones, evidently to spare Corsones the burden of seeing or dealing with Huminski. Predom explained to Zimmerman that Huminski was parked close to the entrance of the District Court and was displaying protest signs criticizing Judge Corsones. Zimmerman thought Predom‘s request “unusual,” and was not told that Huminski posed a security threat.
At about 8:46 a.m., Deputy Sheriff Schutt — after speaking with Corsones and Predom about the van and apparently unaware that Predom had earlier called the Rutland City Police — called in a “trespassing” complaint to the Rutland County Sheriff‘s Department. Judge Corsones was named as the “complainant” in the incident report describing the request for a trespass notice.
At approximately 8:54 a.m., Emerick, accompanied by Elrick, served the Notice Against Trespass form on Huminski. The form indicated it was issued pursuant to
Shortly after being served with the notice pertaining to the District Court building and grounds, Huminski was served by Deputy Sheriff Schutt with a second trespass notice. This notice prohibited Huminski from entering Judge Corsones’ home and real property in Mendon, Vermont, as well as her then-husband‘s law office located in Rutland. This second notice was prepared and served at the express direction of Judge Corsones.
Huminski was then told by the officers that he would be arrested if he did not leave the District Court immediately. Huminski complied without incident or complaint.
Subsequent to the events of May 24, 1999, Elrick was told by various state officials that under a newly-enacted Vermont law, only the Vermont Court Administrator‘s Office had authority to issue trespass notices pertaining to state court buildings. The new statute also specified that the Vermont Commissioner of Buildings and General Services had the exclusive authority to issue such notices as to the land surrounding state court buildings. Elrick therefore contacted the Vermont Commissioner of Buildings and General Services, Tom Torti, and received permission to sign — on behalf of the Commissioner — a “renewed” notice of trespass against Huminski.
Thus, on May 27, 1999, a third notice was issued to Huminski, which Elrick signed on behalf of the Commissioner. Judge Zimmerman signed the form as well, evidently on behalf of the Court Administrator‘s Office, after she spoke by telephone with Francis B. McCaffrey, the Administrative Judge for Trial Courts in Vermont. Judge McCaffrey expressly requested that Zimmerman sign the form, explaining that Huminski had a dispute with Judge Corsones and at times attempted to contact her through her then-husband‘s law office.10
In contrast to the earlier notice signed by Predom, however, this third notice was not limited in scope to the property and grounds of the District Court building in Rutland. Instead, the May 27, 1999 notice expressly covered: “All lands and property under control of the Supreme Court and the Commissioner of Buildings and General Services, including the Rutland District
B. Defendants’ Motivations
Each Defendant in this case has asserted during sworn deposition testimony that their conduct was motivated by a well-founded concern that Huminski pоsed a risk to their own safety and security or that of the District Court. The Court finds there is a genuine dispute as to whether Defendants’ actions were motivated out of security concerns, or, as Plaintiff contends, out of their disagreement with the views expressed by him on the morning of May 24, 1999.
There are circumstantial factors that lend support to Defendants’ position. For example, on the morning of May 24, 1999, Judge Corsones was aware of the following: (1) through the faxes sent to her former law office and the ongoing protest in the District Court parking lot, Huminski was upset with her because of the ruling she made against him; (2) in two letters to State officials, addressing the State‘s conduct in the same criminal case Corsones handled, Huminski expressed what could be reasonably construed as an intent to cause a disturbance;12 (3) Deputy Sheriff Schutt, a trained law enforcement officer assigned to the District Court to provide security, expressed concern about Huminski‘s presence when he reported to Corsones on the morning of May 24; (4) Ed Polk, the chief of security for all Vermont court facilities, recommended, among other actions, issuing a notiсe against trespass to Huminski;13 and (5) court staff in Bennington had expressed a general concern to Corsones about Huminski‘s frequent presence at the District Court building and grounds. Furthermore, Corsones’ decision to request a trespass notice for her home and her then-husband‘s law office further confirms that her actions may have been motivated out of a concern for her safety.
As for Predom, the information she received from Corsones and Polk supports
Despite these factors favoring Defendants, howevеr, there are sufficient countervailing factors to create a genuine dispute as to Defendants’ motivations.
First, at all relevant times, Corsones, Predom, and Zimmerman knew that Huminski‘s May 24 protest signs contained pointed criticism of Judge Corsones.16
Second, Huminski appeared before Judge Corsones at least four times prior to May 24, 1999, and never disrupted the proceedings or threatened to harm anyone. And even though he regularly attended state court proceedings, there was no evidence that he had ever caused a disturbance.
Third, Huminski made no implicit or overt threats during the morning of May 24.17 He clearly stated to Beezup and Schutt that he was there to observe court proceedings. The deposition testimony of at least one law enforcement officer described Huminski as peaceful and respectful in his overall demeanor and verbal expressions. The trespass notices were issued to Huminski after he passed through court security screening and at least three armed law enforcement officers were present at the courthouse at all times. These facts negate the contention he was a security risk.
Lastly, Huminski was a frequent protester on District Court property in Bennington and his actions never caused court staff or security personnel to serve him with a trespass notice, much less request he move his van off the courthouse parking lot. This factor is particularly suggestive, given that none of Huminski‘s prior protests were directed at Judge Corsones. Indeed, that Corsones and others were aware of Huminski‘s prior protests — and even heard concerns about such protests from court staff — yet never took any affirmative action toward Huminski until he directed the protests at Judge Corsones, supports the inference that the trespass
In conclusion, without discrediting Defendants’ sworn deposition testimony, or resolving the issue in either party‘s favor, there is genuine dispute as to the motivations of Defendants Zimmerman, Corsones, and Predom.
For the purposes of resolving Plaintiff‘s demand for equitable relief, neither party has presented evidence suggesting relevant circumstances have materially changed since the time the notices originally issued. For example, there is no еvidence Defendants have taken any action to rescind, retract, or nullify the trespass warnings.18
There is no reason, therefore, to conclude Huminski does not face a credible threat of arrest and prosecution for entering state court buildings or adjoining grounds. Cf. Vermont Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 383 (2d Cir.2000).
On the other hand, if Defendants’ security concerns in 1999 were reasonable, the Court is unable to conjecture that such concerns should have dissipated in the past three years. In that sense, the question whether Huminski presently poses a security threat sufficient to justify the trespass notices is inextricably tied to the question whether Huminski posed a legitimate security threat in May of 1999. Given the factual dispute over that latter issue, and since there is no evidence suggesting circumstances have otherwise materially changed, the Court is unable to conclude as a matter of law that Huminski does not currently pose a security threat sufficient to justify the trespass notices.
II. Discussion
A. State Sovereign Immunity and Municipal Liability under Section 1983
As a preliminary matter, and in order to clarify the issues before the Court, Defendants Corsones and Zimmerman — both state officials for purposes of the doctrine of state sovereign immunity — are immune from suit in federal court insofar as retrospective damages are sought against them in their official capacities for violations of federal law. See Huminski v. Rutland County, 148 F.Supp.2d 373, 379 (D.Vt.2001) (Paper 73). For the same reason, the Court now finds, sua sponte, Defendant Predom immune from retrospective (i.e., monetary) relief sought against her in her official capacity.19
Defendant Elrick is a deputy sheriff and employee of the Rutland County Sheriff‘s Department. Under Vermont law, however, county sheriffs act as policymakers for the State of Vermont when they provide security services at state courthouses and adjoining lands. See
Currently at issue, therefore, is Plaintiff‘s request for monetary relief against Defendants Corsones, Zimmerman, Predom, and Elrick in their personal capacities for alleged past violations of federal constitutional law,21 and a request for permanent injunctive and declaratory relief against Corsones, Zimmerman, and Predom in their official capacities22 for alleged ongoing federal constitutional violations.
B. Judicial Immunity
Defendants Corsones and Zimmerman assert judicial immunity as an affirmative defense. It is well established that judges are absolutely immune from Section 1983 claims for equitable and monetary relief arising from actions taken in their judicial capacity. See Montero v. Travis, 171 F.3d 757, 760-61 (2d Cir.1999); Sundwall v. Leuba, No. Civ.A. 300CV1309(JCH), 2001 WL 58834, at *7 (D.Conn. Jan. 23, 2001);
The factors determining whether an act is a “judicial” one “relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his [or her] judicial capacity.” Stump v. Sparkman, 435 U.S. 349, 362 (1978) (emphasis added). “In other words, [courts] look to the particular act‘s relation to a general function performed by а judge.” Mireles v. Waco, 502 U.S. 9, 13 (1991). The question of motive or intent is wholly irrelevant to the question
1. Judge Corsones
As a preliminary matter, Corsones argues she is not liable because she played no role in the decision-making process which led to the trespass notices being written, signed, and served on Huminski. Corsones’ contention fails for a number of reasons.
First, she not only personally provided Predom and Elrick with information about Huminski‘s prior behavior, but she also did not object to Polk and Predom‘s strategy for handling Huminski, namely, to serve him with a trespass notice barring him from the District Court building and grounds. This factor is at least proof that Corsones knew Huminski was likely to be served with the trespass notice. Second, Corsones indicated to Predom that she would not take the bench that morning, despite a heavily-scheduled docket, unless Huminski left the District Court building. Corsones was the presiding judge at the District Court. By telling Predom she was conditioning her decision to take the bench on Huminski leaving the building, Corsones impliedly authorized Predom — who Corsones knew was charged with managing the normal flow of court business — to take some official action to ensure Huminski left the building.
In sum, Corsones’ involvement is sufficient to trigger personal liability because she: (1) expressly raised her concerns to law enforcement officers and other subordinates about Huminski‘s presence; (2) made clear that official business would stop unless Huminski left the District Court building; thus (3) impliedly authorized her subordinates to take some official action to ensure Huminski‘s removal, fully aware Huminski would likely receive a trespass notice. Compare Colon v. Coughlin, 58 F.3d 865, 873 (2nd Cir.1995) (listing factors necessary to show personal involvement under Section 1983).
Turning to the question of Corsones’ judicial immunity, the Court finds the issuance of a criminal trespass notice in Vermont is not a judicial act.
First, under Vermont‘s criminal trespass statute, the service of a “notice against trespass” document merely satisfies the “actual communication” element of the offense under subsection (a) of the statute. See
Second, it is telling that on the same morning Huminski received the first notice barring him from the District Court building and grounds, Corsones directed Deputy Sheriff Schutt to serve Huminski with an additional notice barring him from entering her own property and the offices of her then-husband‘s law firm. Just as Corsones was acting in her capacity as a mere landowner in requesting the issuance of this second notice, she acted in a similarly non-judicial capacity — as the representative of the true landowner (the State of Vermont) — in facilitating the issuance of the initial trespass notice.
Third, the general rule that judges act in a judicial capacity whenever they order the removal of persons from their courtroom who disrupt or otherwise negatively impact the judicial process, see, e.g., Sheppard v. Maxwell, 384 U.S. 333, 358 (1966); Sheppard v. Beerman, 18 F.3d 147, 152 (2d Cir.1994), does not apply here.23 The first trespass notice was served on Huminski before courtroom proceedings had commenced that morning, and the notice ordered him to leave both the buildings and grounds of the District Court in Rutland, not merely the courtroom areas. There is no evidence Huminski‘s conduct interrupted or otherwise negatively impacted judicial proceedings at the District Court. Indeed, despite a well-known history of protest activities at the District Court in Bennington, Defendants present no evidence that Huminski ever disrupted or otherwise negatively impacted the course of a single, prior judicial proceeding.
Furthermore, providing security at a courthouse building is the sort of routine policing activity that takes place at numerous public facilities and government offices; security activities do not resemble an adjudicative or other traditional function of a court or judge. Cf. Fanoele v. United States, 975 F.Supp. 1394, 1401 (D.Kan.1997) (“Decisions involving thе scope of security protection at federal [courthouse] buildings generally are grounded in economic, social, and political considerations.“) (citations and quotations omitted).
In addition, although
Lastly, Corsones’ actions were non-judicial because Huminski had no official business
2. Judge Zimmerman
For the same reasons that apply to Judge Corsones, Judgе Zimmerman does not enjoy judicial immunity for signing the May 27, 1999 trespass notice. The very broad scope of the notice, coupled with the fact her action was taken upon the request of the chief administrative judge, confirms that Zimmerman‘s actions were not an exercise of her inherent authority as a judge to maintain decorum, safety, and effective judicial processes inside her own courtroom.24
In conclusion, Judge Corsones and Judge Zimmerman are not entitled to the defense of judicial immunity.
B. Plaintiff‘s Claims for Monetary and Equitable Relief
Having resolved the question of judicial immunity, the Court now considers first, whether Defendants are immune from Plaintiff‘s monetary claims under the doctrine of qualified immunity, and second, whether Plaintiff has demonstrated actual success on the merits, in order to prevail on his claims for declaratory and permanent injunctive relief.25
1. Qualified Immunity
State and municipal officers sued under Section 1983 are immune from claims for monetary relief “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Evaluating a motion for summary judgment on the basis of qualified immunity requires a two-step analytical process. First, the Court must determine whether Defendants’ conduct violated a constitutional right. See Hope v. Pelzer, 536 U.S. ___, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).26 If no constitutional right was
On the other hand, if past violation is found, the next, sequential step is to ask whether the right “was clearly established at the time the violation occurred.” Poe v. Leonard, 282 F.3d 123, 132 (2d Cir.2002) (quoting Saucier, 533 U.S. at 202). A right is “clearly established” if it is defined with “reasonable specificity” under decisional law of the Supreme Court or Second Circuit, and a reasonable official would have understood that his or her acts were unlawful. African Trade & Info. Ctr., Inc. v. Abromaitis, 294 F.3d 355, 359-60 (2d Cir.2002) (citing Shechter v. Comptroller of New York, 79 F.3d 265, 271 (2d Cir.1996)).
a. Alleged Constitutional Violations
Huminski claims his constitutional rights were violated in two respects. First, the trespass notices denied him the right under the First Amendment to attend and access court proceedings for the purpose of gathering and disseminating information. See Pl.‘s Mem. in Supp. of Mot. for Partial Summ.J. (Paper 122), at 2. Second, “[t]he trespass notices discriminate against Huminski because of his views, and they unreasonably limit the expression of his opinions.” Id.27
The Court agrees that the trespass notices clearly implicate the First Amendment. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); Niemotko v. Maryland, 340 U.S. 268, 282 (1951) (Frankfurter, J., concurring in result); Gagliardi v. Vill. of Pawling, 18 F.3d 188 (2d Cir.1994); Westmoreland v. Columbia Broadcasting Sys., Inc., 752 F.2d 16 (1984). But cf. In re the Herald Co., 734 F.2d 93, 100 (2d Cir.1984) (“To claim a value in access to information, even information conсerning significant governmental activities, comparable to the value of freedom of expression, is to ignore 200 years of First Amendment jurisprudence.“).
Even though the “First Amendment does not guarantee access to property simply because it is owned or controlled by the government,” United States Postal Serv. v. Greenburgh Civic Ass‘ns, 453 U.S. 114, 129 (1981), when the government is “acting in its proprietary capacity, [it] does not enjoy absolute freedom from First Amendment constraints,” United States v. Kokinda, 497 U.S. 720, 725 (1990).
b. Forum Analysis
Upon finding that the activity at issue implicates protected speech, the next step is to “determine the level of scrutiny that applies to the regulation of protected speech at issue.” Kokinda, 497 U.S. at 725. “In evaluating government regulations concerning private individuals’ speech on government-owned property, the Supreme Court has identified three categories of forums — the traditional public forum, the designated public forum, and the nonpublic forum — and has developed a body of law styled `forum analysis.‘” Perry v. McDonald, 280 F.3d 159, 166 (2d Cir.2001) (citing Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802 (1985), and Perry Educ. Ass‘n v. Perry Local Educators’ Ass‘n, 460 U.S. 37, 45 (1983)). The Second Circuit recently reiterated the “forum analysis” standards, as follows:
[1] A traditional public forum is property, such as a public street or a park, that by long tradition or by government fiat has been devoted tо public assembly and debate. Government restrictions on speech in a traditional public forum are subject to strict scrutiny and must be necessary to serve a compelling state interest and narrowly drawn to achieve that interest. [2] A designated public forum is created by purposeful governmental action — that is, when the government intentionally opens a nontraditional forum for public discourse. Restrictions on speech in a designated public forum are also subject to strict scrutiny. [3] Other governmental properties are nonpublic forums. The government may impose restrictions on speech in a nonpublic forum as long as these restrictions are reasonable and viewpoint-neutral.
Id. (internal citations and quotations omitted, emphasis added).
In this case, Huminski does not suggest the buildings and grounds of the Vermont state court system, including the District Court in Rutland, are traditional public fora. Moreover, there is no evidence of a long history of public assembly and open debate in such places. The issue, therefore, is whether these state-owned and controlled properties are nonetheless subject to strict scrutiny because they arе designated public fora. Again, the Second Circuit‘s recent opinion in Perry v. McDonald, supra, provides the relevant legal standard:
In order to determine whether a particular species of government property is a designated public forum, we examine factors such as the policy and practice of the government and the nature of the property and its compatibility with expressive activity. The focus of this analysis is on the government‘s intent; accordingly, a court must ascertain whether the government intended to designate a place not traditionally open to assembly and debate as a public forum ... bear[ing] in mind that the government creates a public forum by designating a place or channel of communication for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects. The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening
a nontraditional forum for public discourse.
Id. at 167 (internal citations and quotations omitted).
For the reasons explained below, the Court concludes that Vermont state court buildings and grounds, including the District Court and parking lot in Rutland, are not designated public fora.28
Notes
First, Huminski does not expressly deny Corsones and Zimmerman‘s statement that “[t]he parking lot in which Mr. Huminski parked his van is intended for use for court staff and those going to court.” Defs.’ Statement of Facts (Paper 127), at ¶ 7; see Pl.‘s Statement of Disputed Facts (Paper 134), at 2. Common sense dictates that state court buildings and their adjacent public parking lots are intended to further efficiency and administrative convenience, not create an open forum for assembly and debate.
Second, there is no evidence the State of Vermont or Defendants ever freely permitted all manner of political protests on state court buildings or grounds. Huminski‘s evidence that on prior occasions certain politicаl protests — including those by Huminski himself — were allowed to take place on state court lands such as the District Court in Bennington, is not sufficient proof of a government intention to create a forum for public discourse. See Gen. Media Communications, Inc. v. Cohen, 131 F.3d 273, 279 (2d Cir.1997) (“It is ... well established that the presence of some expressive activity in a forum does not, without more, render it a public forum.“). Nor is it sufficient that Vermont courthouses and adjoining parking lots are freely open to all comers. See Greer v. Spock, 424 U.S. 828, 836 (1976) (expressly rejecting the suggestion that “whenever members of the public are permitted freely to visit a place owned or operated by the Government, then that place becomes a `public forum’ for purposes of the First Amendment“); United States v. Grace, 461 U.S. 171, 177 (1983); Knolls Action Project v. Knolls Atomic Power Lab., 771 F.2d 46, 49 (2d Cir.1985).
Lastly, “examin[ing] `the nature of the property and its compatibility with expressive activity to discern the government‘s intent,‘” McDonald, 280 F.3d at 168 (quoting Cornelius, 473 U.S. at 802), there is a lack of compatibility between state courthouses, such as the District Court building in Rutland, and the sort of unfettered speech and assembly that occurs in traditional public forums. Unlike a park or street corner, the primary purpose of a courthouse is to fairly and effectively cаrry out adjudicatory business. An atmosphere of decorum and order is expected and enforced in a courthouse not for the sake of good manners; such an atmosphere facilitates the fair and efficient administration of justice. Cf. Dorfman v. Meiszner, 430 F.2d 558, 561 (7th Cir.1970) (“[T]he law not only allows but compels the courts to insure that judicial proceedings are conducted in an orderly, solemn environment free from the interferences which so often accompany modern news coverage of the events.“); Claudio v. United States, 836 F.Supp. 1219, 1225 (E.D.N.C.1993) (“[T]he court perceives a legitimate interest by the Government in preserving a certain elevated level of decorum within (and upon) the walls of a building which houses federal judicial, executive, and administrative offices. Not every manner of expression is compatible with the ambiance of a government building.“).
Lastly, like most parking lots, the one at issue contains marked spaces for automobiles, see Paper 131, Ex. 41, Attachs. A-C; id., Ex. 27, Attach. B, which not only indicates to persons entering from the street or sidewalk that they have “entered ... [a] special type of enclave,” Kokinda, 497 U.S. at 728, but also suggests the government does not intend to facilitate open public assembly or expression, cf. Grace, 461 U.S. at 183.
In sum, the parking lot at the District Court is for the convenience of persons who are visiting the Court, and that purpose is not compatible with or suggestive of typical public form activities.
c. Nonpublic Forum: Viewpoint Neutrality and Reasonableness
“[T]he government may reasonably restrict expressive activity in a nonpublic forum on the basis of content, so long as the restriction is not `an effort to suppress the speaker‘s activity due to disagreement with the speaker‘s view.‘” Cohen, 131 F.3d at 280 (quoting Int‘l Soc‘y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679 (1992)); see also Kokinda, 497 U.S. at 730.
i. Viewpoint Neutrality
Content discrimination is permissible in a nonpublic forum: “Implicit in the concept of the nonpublic forum is the right to make distinctions in access on the basis of subject matter and speaker identity.” Perry, 460 U.S. at 49. Viewpoint discrimination is illegal, however, in a nonpublic forum. See McDonald, 280 F.3d at 170; Cohen, 131 F.3d at 280.
“As a general matter, viewpoint discrimination represents a particularly `egregious’ subset of content discrimination in which the `government targets not subject matter but particular views taken by speakers on a subject.‘” Cohen, 131 F.3d at 281 (quoting Rosenberger v.
As noted above, there is a genuine dispute concerning the motivations behind Defendants\’ actions. If the Court were to adopt the Defendants\’ position, the trespass notices likely would pass muster as a regulation merely based on “a reason that stops well short of suppression of speech.” It is insufficient, however, for Defendants to assert the trespass notices were facially viewpoint-neutral. There is some circumstantial evidence to support the conclusion that Defendants Corsones, Zimmerman, and Predom acted not simply because Huminski was protesting, or even because he was expressing political views generally, but because he was expressing a particular view (one highly critical) of Judge Corsones\’ judicial performance.
ii. “Clearly Established” Rights
The genuine factual dispute regarding Defendants\’ motivations prevents the Court from granting Defendants\’ motions for summary judgment under the second step of the qualified immunity test. It has long been “clearly established” that government officials may not discriminate against a speaker in a public or nonpublic forum based their disagreement with the speaker\‘s viewpoint. See Lee, supra. It is clearly established that officials may not exercise their authority to retaliate against an individual on the basis of that individual\‘s exercise of protected First Amendment rights. See Perry v. Sindermann, 408 U.S. 593, 597 (1972); City of Houston v. Hill, 482 U.S. 451, 462, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987); Sheppard v. Beerman, 94 F.3d 823, 828 (2d Cir.1996). But see Shechter v. Comptroller, 79 F.3d at 271 (right of “access to courts” does not meet the spеcificity requirements necessary to preclude qualified immunity defense).
Accordingly, the Court must deny the motions for summary judgment by Defendants Corsones, Zimmerman, and Predom with respect to Plaintiff\‘s claims for monetary relief.30
iii. Reasonableness
Because speech regulations in a nonpublic forum must be both viewpoint-neutral and reasonable to survive constitutional scrutiny—that is, a viewpoint-neutral speech regulation may be struck down for lack of reasonableness31—the Court is required to make a determination as to the reasonableness of the trespass notices in order to rule on Plaintiff\‘s summary judgment motion.32
“A governmental restriction on speech in a nonpublic forum `need only be reasonable in light of the purpose of the forum ... and reflect a legitimate government concern.\‘” McDonald, 280 F.3d at 169 (quoting Cohen, 131 F.3d at 282); see also Kokinda, 497 U.S. at 730, 110 S.Ct. 3115 (“`The Government\‘s decision to restrict access to a nonpublic forum need only be reasonable; it need not be the most reasonable or the only reasonable limitation.\‘“) (quoting Cornelius, 473 U.S. at 808, 105 S.Ct. 3439); United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985) (“The validity
Furthermore, “[i]f a restriction on speech in a nonpublic forum serves a legitimate governmental interest ... then the fact that the prohibited expression does not `interfere\’ with a principal purpose of the forum does not render that prohibition unconstitutional.” McDonald, 280 F.3d at 169. Nor must the government prove that every manner or form of expressive activity is incompatible with the principal character and purpose of the government-owned facility in order to impose a total and complete ban on all forms of free speech activities. See Knolls Atomic, 771 F.2d at 50. As the Supreme Court has held:
The First Amendment does not bar application of a neutral regulation that incidentally burdens speech merely because a party contends that allowing an exception in the particular case will not threaten important governmental interests. Regulations that burden speech incidentally or control the time, place, and manner of expression must be evaluated in terms of their general effect.
Albertini, 472 U.S. at 688-89, 105 S.Ct. 2897 (citing Clark, 468 U.S. at 296-99 n. 8, 104 S.Ct. 3065) (emphasis added).
Applying these principles, and viewing the disputed material facts in Defendants\’ favor, the Court is persuaded the trespass notices are reasonable.
The primary purpose of state court facilities and their parking lots is the effective and fair administration of justice. As Defendants observe, a necessary condition to reaching that goal is a safe and orderly environment in and around the courthouse facilities. The trespass notices achieve Defendants\’ purported interest by excluding Huminski from all courthouse premises in Vermont, ensuring that he will not interfere or threaten courthouse security. In fact, the question of Defendants\’ motives notwithstanding, the trespass notices have the same general effect—namely, excluding Huminski from all state court property—as if the State had implemented screening procedures barring all persons, except those bearing a government-issued identification, from entering state courthouses and parking lots.
Furthermore, the breadth of the trespass notices does not make them unreasonable; restrictions on speech in a nonpublic forum need not be narrowly-tailored, or even the most reasonable or best form of regulation. As long as they serve the purported government interest, they deserve judicial deference. See Albertini, 472 U.S. at 688-89, 105 S.Ct. 2897; Adderley v. Florida, 385 U.S. 39, 48 n. 7, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966) (“`The conduct which is the subject of this statute—picketing and parading—is subject to regulation even though intertwined with expression and association. The examples are many of the application by this Court of the principle that certain forms of conduct mixed with speech may be regulated.\‘“) (quoting Cox v. Louisiana, 379 U.S. 536, 553, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965)).
Another factor bearing on reasonableness is the availability of alternative channels
In this case, there are public sidewalks on two sides of the District Court building and grounds. See Paper 131, Ex. 27, Attach. B. In fact, the main entrance to the Court building faces one sidewalk, and the entrance to the parking lot transgresses anоther stretch of sidewalk. See id. “The First Amendment does not demand unrestricted access to a nonpublic forum merely because use of that forum may be the most efficient means of delivering the speaker\‘s message.” Cornelius, 473 U.S. at 809, 105 S.Ct. 3439. Thus, while attending court and protesting in the courthouse parking lot may be the most efficient way for Huminski to monitor judicial processes and communicate his views regarding Judge Corsones or other officials within the Vermont criminal justice system, there is nothing in the trespass orders that prevent him from communicating his views from the sidewalks to his intended audience—those who come and go and conduct business in the District Court, including Corsones herself.
Finally, even were the Court mistaken on whether the trespass notices were reasonable, Plaintiff fails to demonstrate that a reasonable official in Defendants\’ position—and therefore concerned about security in light of Huminski\‘s presence— would have known that the notices against trespass were “clearly” unreasonable as a matter of law. In conclusion, therefore, Plaintiff\‘s motion for summary judgment on his monetary claims must fail.
d. Defendant Elrick\‘s Motion for Summary Judgment
Given that Sheriff Elrick did not see Huminski\‘s protest signs—аnd therefore could not have discriminated against Huminski on the basis of viewpoint—the reasonableness of the trespass notices in light of the undisputed evidence warrants summary judgment in Elrick\‘s favor. Furthermore, were the Court mistaken whether the regulation at issue was reasonable in light of undisputed facts, Plaintiff fails to demonstrate that a reasonable official in Elrick\‘s position—not aware of Huminski\‘s viewpoint—would have known that the trespass notices were “clearly” unreasonable as a matter of law. Elrick thus enjoys qualified immunity from Huminski\‘s claim for damages.
2. Equitable Relief: Actual Success on the Merits
If no constitutional right is being violated by Defendants\’ conduct, there is no basis on which to grant equitable relief. See City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). However, if an ongoing constitutional violation is found, the doctrine of qualified immunity is no bar to the Court\‘s power to grant equitable relief. See Charles W. v. Maul, 214 F.3d 350, 358 (2d Cir.2000).
In this case, disputed material facts regarding Defendants\’ motivations preclude the Court from determining whether the trespass notices constitute an ongoing deprivation of Huminski\‘s First Amendment rights. Accordingly, the motions for summary judgment by Huminski, Corsones, Predom, and Zimmerman on Huminski\‘s claims for declaratory and injunctive relief must be denied.
Given the genuine dispute as to material facts, however, the Court also finds there
III. Conclusion
For the reasons set forth above:
the Court DISSOLVES its prior grant of preliminary injunctive relief (Paper 67);
the motion by Defendants Rutland County Sheriff\‘s Department and Deputy Sheriff R.J. Elrick for summary judgment on all claims (Paper 123) is GRANTED;
the motion by Plaintiff Scott Huminski for summary judgment (Paper 120) is DENIED;
the motion by Defendant Karen Predom for summary judgment (Paper 128) is DENIED;34
the motion by Defendants Nancy Corsones and M. Patricia Zimmerman for summary judgment (Paper 125) is DENIED;
the motion by Defendants Rutland County Sheriff\‘s Department and R.J. Elrick to strike Plaintiff\‘s consolidated opposition memorandum (Paper 145) is DENIED;35
the motion by Plaintiff to strike portions of Defendants\’ Statements of Undisputed Material Fact (Paper 132) is DENIED;36
Plaintiff\‘s claim for monetary relief under
Plaintiff\‘s state law claims against Defendants are dismissed, sua sponte, for lack of subject-matter jurisdiction.37
SO ORDERED.