Children First Foundation, Inc. v. Martinez
| Decision Date | 03 August 2007 |
| Docket Number | Civ. No. 1:04-CV-0927 (NPM/RFT). |
| Citation | 631 F.Supp.2d 159 |
| Parties | The CHILDREN FIRST FOUNDATION, INC., a New York non-profit organization, Plaintiff, v. Raymond P. MARTINEZ, individually; David J. Swartz, in his official capacity as Commissioner of the New York Department of Motor Vehicle; Jill A. Dunn, individually and in her official capacity as Deputy Commissioner for the New York Department of Motor Vehicles; and George E. Pataki, individually, Eliot Spitizer, individually and in his official capacity as Governor of the State of New York; Andrew Cuomo, in his official capacity as Attorney General, Defendants.<SMALL><SUP>1</SUP></SMALL> |
| Court | U.S. District Court — Northern District of New York |
Gucciardo, Raum Law Firm, Brian W. Raum, of Counsel, New York, NY, for Children First Foundation, Inc.
Alliance Defense Fund, James M. Johnson, of Counsel, Shreveport, LA, for Children First Foundation, Inc.
Alliance Defense Fund—DC Office, Jeffrey A. Shafer, of Counsel, Washington, D.C., for Children First Foundation, Inc.
Hiscock & Barclay, LLP, Linda J. Clark, Michael J. Grygiel, of Counsel, Albany, NY, for Jill A. Dunn, individual capacity.
Houguet, Newman Law Firm, Ira J. Lipton, Elizabeth A. Musella, of Counsel, New York, NY, for George Pataki, individual capacity.
Harris Beach PLLC, Mark J. McCarthy, of Counsel, Albany, NY, for Raymond Martinez, individual capacity.
Hon. Andrew M. Cuomo, Attorney General, Krista A. Rock, David M. Finkelstein, Michael G. McCartin, of Counsel, Albany, NY, for Jill A. Dunn, Eliot Spitzer, Andrew M. Cuomo, and Nancy A. Naples, in their official capacities.
MEMORANDUM—DECISION AND ORDER ON MOTION TO AMEND
Presently before this Court is Defendant Dunn's Motion to Amend her Answer. Dkt. No. 67, Dunn's Mot. to Amend, dated Mar. 22, 2007.2 Although there are other parties to this action, only Plaintiff Children First Foundation, Inc. (hereinafter "CFF") opposes Dunn's Motion to Amend. Dkt. No. 78, Pl.'s Mem. of Law in Opp'n to Mot. to Amend, dated Mar. 29, 2007, with Exs. A-C.3 Based upon reasons to follow, the Dunn's Motion to Amend is granted in part and denied in part.
Generally the Court would presume that all are familiar with the facts of the litigation. However, due to the complexity of the issues, we will state the more salient facts and events so that the issues are properly framed.
Pursuant to New York's Vehicle and Traffic Law, § 401 et seq., the Commissioner of the Department of Motor Vehicles (hereinafter "DMV") was granted authority to establish three distinct categories of custom license plates: "Historical and Vintage Plates," "Special Number Plates," and "Picture Plates." Dk. No. 49, First Am. Compl. at ¶¶ 10-13. Basically, Picture Plates are commonly known as logo plates which permit a picture or logo in addition to an identification plate number. Id. at ¶ 16. As a part of the Picture Plate program, there are several sub-categories, which include, inter alia, "Organization and Causes." Id. at ¶ 17.5 A significant feature of this program permits Picture Plates to be used to raise funds for non-profit agencies. Although many of these "Organization and Causes" Picture Plates have already been approved by the State Legislature, the majority are approved by DMV. Id. at ¶ 21-27; see supra note 4.
Children First Foundations and alike organizations are ubiquitous throughout this nation. Dr. Elizabeth Rex formed CFF, a New York not-for-profit corporation, for the tri-states of Connecticut, New Jersey, and New York, with the promulgated purpose "to promote and support adoption as a positive choice for women with unwanted pregnancies or new borns" and with the mission of "increas[ing] . . . adoptions by raising public awareness, support and funds for the needs of women who choose life. . . ." See http://www.thechildrenfirst. org/mission.htm. CFF does not dispute that its underlying message is one of prolife inasmuch as Choose Life, Inc., an organization committed to the promotion of alternatives to abortion, has permitted CFF to use "Choose Life" as a part its mission statement. First Am. Compl. at ¶ 33. As has been done in Connecticut and New Jersey, CFF has attempted to secure a Picture Plate from New York since 2001, in order to increase the organization's identity, raise funds, increase membership, and promotes its causes. Id. at ¶¶ 37-91. CFF's prominent tag line for the Picture Plate would state "Choose Life," which has remained its constant theme throughout other modifications to the proposed plate. Id. at ¶¶ 33 & 50-55. CFF's application for this Plate was rejected repeatedly by the Commissioner of DMV, modifications notwithstanding. Id. at ¶¶ 50-70, Exs. to Am. Compl.
On August 4, 2004, CFF filed a 42 U.S.C. § 1983 civil rights action against Raymond Martinez, then Commissioner of DMV, Jill A. Dunn, then Deputy Commissioner and Counsel for DMV, Elliot Spitzer, then Attorney General, and George E. Pataki, then Governor, in both their official and individual capacities, alleging that Defendants violated CFF's rights to Freedom of Speech, Due Process, and Equal Protection of the Law. Dkt. Nos. 1, Compl., & 49, First Am. Compl.6 The crux of CFF's Complaint is that the rejections of their proposed Picture Plate with the tag line of "Choose Life" is content-based and view-point discrimination. First Am. Compl. at ¶ 109.
CFF's action was met immediately by Defendants' Motion to Dismiss, pursuant to FED. R. CIV. P. 12(b)(6). Dkt. No. 7, Defs.' Mot. to Dismiss, dated Nov. 15, 2004. At that juncture of the litigation, New York State's Attorney General was representing all of the named Defendants in both their official and individual capacities. Oral arguments were held before the Honorable Neal P. McCurn, Senior United' States District Judge, on January 4, 2005, in which a myriad of First Amendment issues were discussed. Among those many issues, which included a failure to state a cause of action, the bar under the Eleventh Amendment of the United States Constitution, lack of personal involvement by Defendants, and the doctrine of qualified immunity, was whether Defendants' actions, particularly Martinez's, were reasonable and viewpoint neutral as DMV attempted not to endorse a position on abortion, now the fulcrum of the current Motion to Amend. Dkt. Nos. 7, Defs.' Mem. of Law, & 17, Oral Argument, Jan. 4, 2005 (hereinafter "Hr'g Tr."). After listening to a thorough discussion on the Motion to Dismiss, Judge McCurn ruled that CFF has sufficiently alleged violations of the First and Fourteenth Amendments to the United States Constitution, though claims for money damages against Defendants in their official capacities were dismissed. Dkt. Nos. 16, Min. Entry, dated Jan. 5, 2005, 17, Hr'g Tr. at pp. 70-73. Additionally, qualified immunity was a keen focus during the oral arguments. In terms of Defendants' qualified immunity defense, Judge McCurn decided not to treat or consider the qualified immunity defense under a Rule 12(b)(6) motion to dismiss analysis and suggested that this affirmative defense could be asserted within an answer and raised later during a motion for summary judgment. Id. at p. 76.
Shortly thereafter, State Defendants filed a Motion for Reconsideration of the January 4, 2005 Ruling and Order, pursuant to FED. R. CIV. P. 54(b), primarily raising the matter of qualified immunity again by arguing that such defense should be addressed within a motion to dismiss context. Dkt. No. 18, Defs.' Mot. to Recons. Relying upon McKenna v. Wright, 386 F.3d 432 (2d Cir.2004), where the Second Circuit held that it lacked appellate jurisdiction because it could not determine the availability of qualified immunity as a matter of law during a motion to dismiss review, Judge McCurn found that "[D]efendants have not established that the facts on the face of the [C]omplaint support a qualified immunity defense." Dkt. No. 31, Mem.-Decision & Order, dated Feb. 18, 2005, at p. 5 (citations omitted). Defendants immediately filed a Notice of Appeal as to both the January 5 and February 18, 2005 Orders. Dkt. Nos. 23 & 32. In the interim, Defendants filed their Answer. Dkt. No. 21.7
On March 6, 2006, the Second Circuit issued a Summary Order dismissing Defendants' appeal. Dkt. No. 35, Second Circuit Mandate; Children First Foundation, Inc., et. al. v. Martinez, et. al., 169 Fed. Appx. 637 (2d Cir.2006). First, the Circuit pointed out that New York's picture plate program is a nonpublic forum and "even in a nonpublic forum, restrictions on speech must be reasonable and viewpoint neutral." 169 Fed. Appx. at 639 (citing Perry v. McDonald, 280 F.3d 159, 169 (2d Cir.2001)). Accepting all allegations and reasonable inferences in favor of Plaintiffs, the Second Circuit found that CFF had sufficiently pled a claim of viewpoint discrimination by alleging that Defendants "denied the [P]icture [P]late [A]pplication based on their disagreement with [the] life-affirming viewpoint expressed by the plate." Id. Second, noting that the defense of qualified immunity cannot "usually" be sustained upon a Rule 12(b)(6) motion, the Circuit Court wrote that "[b]ecause the facts supporting the defense of qualified immunity do not appear on the face of the complaint, we lack appellate jurisdiction." Id. (). Yet a critical critique, possibly the lynchpin to our analysis of Dunn's Motion to Amend, resulted when the Second Circuit succinctly addressed Defendants' invocation of the government speech doctrine:
Defendants also argue that it would have been reasonable for them to believe their actions were permissible under the government speech doctrine. Although the government may discriminate on the basis of viewpoint when it is speaking only for itself, see Legal Services Corp. v. Velazquez, 531 U.S. 533, 541-42, 121 S.Ct. 1043, 149 L.Ed.2d...
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