New York Civil Liberties Union v. New York City Transit Authority, 072011 FED2, 10-0372-cv

Docket Nº:10-0372-cv
Opinion Judge:CALABRESI, Circuit Judge:
Party Name:NEW YORK CIVIL LIBERTIES UNION, Plaintiff-Appellee, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant-Appellant, H. DALE HEMMERDINGER, ELLIOT G. SANDER, Defendants.
Attorney:CHRISTOPHER DUNN, New York Civil Liberties Union Foundation, (Arthur Eisenberg, on the brief), New York, N.Y., for Plaintiff-Appellee. RICHARD SCHOOLMAN, Office of the General Counsel, New York City Transit Authority, (Valerie K. Ferrier, on the brief), New York, N.Y. for Defendant-Appellant. Dav...
Judge Panel:Before: LEVAL, CALABRESI, LYNCH, Circuit Judges.
Case Date:July 20, 2011
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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NEW YORK CIVIL LIBERTIES UNION, Plaintiff-Appellee,

v.

NEW YORK CITY TRANSIT AUTHORITY, Defendant-Appellant,

H. DALE HEMMERDINGER, ELLIOT G. SANDER, Defendants.

No. 10-0372-cv

United States Court of Appeals, Second Circuit

July 20, 2011

Argued: December 16, 2010

The New York City Transit Authority ("NYCTA") appeals from an order of the district court for the Southern District of New York (Sullivan, J.) enjoining the enforcement of an NYCTA policy requiring third parties to obtain the consent of those contesting notices of violation before NYCTA's Transit Adjudication Bureau in order to observe such hearings. We hold that the First Amendment guarantees the public a presumptive right of access to the NYCTA's adjudicatory proceedings, and that the NYCTA has not overcome that presumption.

CHRISTOPHER DUNN, New York Civil Liberties Union Foundation, (Arthur Eisenberg, on the brief), New York, N.Y., for Plaintiff-Appellee.

RICHARD SCHOOLMAN, Office of the General Counsel, New York City Transit Authority, (Valerie K. Ferrier, on the brief), New York, N.Y. for Defendant-Appellant.

David A. Schulz, Jacob P. Goldstein, Levine Sullivan Koch & Schulz, LLP, New York, N.Y., for Amici Curiae The New York Times Company, et al., in support of Plaintiff-Appellee.

Brian Kreiswirth, Committee on Civil Rights, The Association of the Bar of the City of New York, Marjorie Lindblom, Evan Saucier, Kirkland & Ellis LLP, New York, N.Y. for Amicus Curiae The Association of the Bar of the City of New York.

Before: LEVAL, CALABRESI, LYNCH, Circuit Judges.

CALABRESI, Circuit Judge:

Defendant-Appellant New York City Transit Authority ("NYCTA") promulgates Rules of Conduct ("Rules") for those who use the city's public transportation and its associated facilities. N.Y. Pub. Auth. Law § 1204(5-a); see N.Y. Comp. Codes R. & Regs. § 1050 et seq.1 All New York City police officers are authorized to issue citations for violations of the Rules. New York Civil Liberties Union v. New York City Transit Authority, 675 F.Supp.2d 411, 414 (S.D.N.Y. 2009) ("NYCLU"); see N.Y. Comp. Codes R. & Regs. § 1050.12. A police officer has discretion to issue either a summons to New York Criminal Court ("Criminal Court") or a notice of violation for the Transit Adjudication Bureau ("TAB"), a department in the NYCTA where an alleged Rule-breaker may contest the citation in an in-person hearing. NYCLU, 675 F.Supp.2d at 414; see N.Y. Pub. Auth. L. § 1209-a(3). In each forum, a neutral decisionmaker determines whether the alleged violator has broken a Rule and imposes a penalty for such violations.

When a person who is issued a summons contests the citation in court, that hearing is, by statute, open to the public. N.Y. Judiciary Law § 4 (stating that, absent exceptions not relevant here, "[t]he sittings of every court within this state shall be public, and every citizen may freely attend the same . . . ."). NYCTA policy, in contrast, excludes from a TAB proceeding any observer to whose presence the person contesting the notice of violation, or "respondent, " objects.

Plaintiff-Appellee New York Civil Liberties Union ("NYCLU") brought suit under 42 U.S.C. § 1983 to enjoin this policy, claiming, inter alia, that the policy violated the NYCLU's First Amendment right of access to government proceedings.2 The district court (Sullivan, J.) granted a preliminary, and then a permanent, injunction. NYCLU, 675 F.Supp.2d at 439; New York Civil Liberties Union v. New York City Transit Authority, No. 1:09-cv-3595 (RJS) Doc. 39 (January 22, 2010), Doc. 40 (January 29, 2010). On appeal, the NYCTA claims that the public has no right of access to administrative adjudicatory proceedings generally and that, even if such a right exists, it should not apply to TAB hearings. We disagree.

The public's right of access to an adjudicatory proceeding does not depend on which branch of government houses that proceeding. To determine whether a particular adjudicatory forum should be presumptively open to the public, courts ask whether the forum has historically been open and whether openness enables its proper functioning. In the present case, both lines of inquiry lead squarely to the same answer. We reach no broad conclusions about the openness required of administrative proceedings generally. But we conclude that the First Amendment guarantees the public a qualified right of access to the administrative adjudicatory forum at issue in this case, and that no grounds have been adduced by the NYCTA supporting its rules limiting that right. We therefore affirm.

BACKGROUND

I. The Transit Adjudication Bureau

From 1966, when the Rules were first enacted, until 1986, when the TAB first began operating, the New York Criminal Court ("Criminal Court") had exclusive jurisdiction over citations for Rules violations. NYCLU, 675 F.Supp.2d at 415. A 1984 statute created the TAB to lessen the burden on the Criminal Court and to increase the rate at which fines were collected from Rules violators. See N.Y. Pub. Auth. Law § 1209-a. The statute also increased the fine that could be imposed: while the Criminal Court is limited to a fine of no more than $25 for a violation of an NYCTA Rule, the TAB may fine a violator up to $100, with an additional penalty of up to $50 for failing to respond to a notice of violation. N.Y. Pub. Auth. Law § 1204(5-a); see also NYCLU, 675 F.Supp.2d at 414. (The Criminal Court may also sentence a violator to a maximum of 10 days' imprisonment, NYCLU, 675 F.Supp.2d at 414, but the record suggests that this penalty is rarely, if ever, imposed.)

The police officer citing the violation has discretion to choose whether to issue a citation to Criminal Court or a notice of violation to the TAB. As the district court observed, "no violation appears to be, by definition, only returnable to one of the venues." NYCLU, 675 F.Supp.2d at 415; see N.Y. Pub. Auth. Law § 1209-a(3) (giving the TAB "non-exclusive jurisdiction over violations of" the Rules).

A person who receives a TAB notice of violation may pay the fine without contesting it, contest it by mail, or contest it at an in-person hearing. In 2008, officers issued 125, 155 notices of violation returnable to the TAB. That same year, 88, 236 notices of violation were paid without contest, and 19, 028 were contested at in-person TAB hearings. Attorneys appointed by the NYCTA President and paid on a per-diem basis preside over TAB hearings as TAB hearing officers. N.Y. Pub. Auth. Law § 1209-a(2).

The TAB can issue subpoenas, "accept pleas[, ] . . . hear and determine . . . charges of transit infractions[, ] . . . impose civil penalties[, ] . . . [and] enter judgments and enforce them, without court proceedings, in the same manner as the enforcement of money judgments in civil actions." N.Y. Pub. Auth. Law § 1209-a(4)(a)-(e), (g). A final order issued by the TAB serves as a "bar to . . . criminal prosecution" for the same conduct. Id. 1209-a(9)(b). TAB guidelines provide that respondents may be represented by counsel. NYCLU, 675 F.Supp.2d at 417; see Guidelines Governing Proceedings Before the Transit Adjudication Bureau § 1.7 ("TAB Guidelines").3 Respondents may show up at the TAB office any time during the period stated on their notices of violation and receive a hearing on a first-come, first-served basis.4 But if a hearing is scheduled by the TAB (as is sometimes done to facilitate the production of witnesses or evidence), the respondent must be told its date and location. NYCLU, 675 F.Supp.2d at 417. Hearing officers identify the parties and issues in the case; advise respondents of their rights to a hearing, representation, cross-examination, document production, and appeal; and oversee the presentation of motions, cases in chief, and rebuttals. Id. at 417-18. TAB guidelines govern the timing, formats, and procedures for filing documents, id. at 418, and specify that a Rules infraction must be established by clear and convincing evidence, with any affirmative defenses to be established by a preponderance of the evidence, id. Witnesses are sworn and exhibits may be introduced. Id. Respondents may appeal a hearing officer's decision to an internal appeals board and, from there, to state court. Id. at 419. The TAB is required by statute to "compile . . . complete and accurate records relating to all charges and dispositions." N.Y. Pub. Auth. Law § 1209-a(4)(f). In other words, in these and many other particulars, the TAB acts very much like a court of first instance.

At the same time, the TAB's powers and procedures are not the same as a court's. To enforce a subpoena that is not obeyed, the TAB "may make application to the [New York] supreme court." Id. § 1209-a(7)(e). Although a TAB final order "may be enforced without court proceedings in the same manner as . . . money judgments entered in civil actions, " id. § 1209-a(9)(b), the TAB may need to "apply to a court of competent jurisdiction for enforcement of" such a decision, id. § 1209-a(4)(g). Most of the rules of evidence do not apply to TAB hearings, id. § 1209-a(7)(e), and no pre-hearing motions or discovery are permitted, TAB Guidelines §§ 2.3, 2.8. The notice of violation itself, without additional corroboration, is deemed prima facie evidence of a violation. Id. § 2.1. And, significantly, the records the TAB compiles on charges and dispositions are, by statute, exempt from disclosure under New York's Freedom of Information Law. N.Y. Pub. Auth. Law § 1209-a(4)(f); see N.Y. Pub. Officers Law § 87.5

II. The TAB's Access Policy

The NYCTA describes its long-term access policy as one of presumptive openness to the public. Under that policy, a person who wishes to observe a TAB hearing must twice obtain the consent of the respondent whose case is being...

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