Coe v. Town of Blooming Grove
| Decision Date | 07 July 2008 |
| Docket Number | No. 06 Civ. 8149 (WCC).,06 Civ. 8149 (WCC). |
| Citation | 567 F.Supp.2d 543 |
| Parties | Rev. Alexandra COE, Plaintiff, v. TOWN OF BLOOMING GROVE and Village of Washingtonville, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Bergstein & Ullrich, LLP, Stephen Bergstein, Esq., of Counsel, Chester, NY, for Plaintiff.
Jacobowitz and Gubits, LLP, J. Benjamin Gailey, Esq., of Counsel, Walden, NY, for Defendants,
Plaintiff Reverend Alexandra Coe brings suit against defendants Town of Blooming Grove (the "Town") and Village of Washingtonville (the "Village"), pursuant to 42 U.S.C. § 1983, alleging violations of her First Amendment rights. The dispute arises out of plaintiffs attempt to obtain a permit to hold a peace rally in the Village shortly before the federal elections of November 2006. Plaintiff ultimately succeeded in doing so, but only after filing suit in this Court. Plaintiff claims that the delay caused by the need for court intervention limited her ability to publicize the rally beforehand, which depressed turnout. Plaintiff now moves for summary judgment pursuant to Fed.R.Civ.P. 56, seeking a ruling that defendants' permit requirements in effect at the time of her application, as well as subsequent amendments to those requirements, are unconstitutional. Plaintiff also seeks damages. Defendants move for dismissal pursuant to FED. R. CIV. P. 12(b)(6) arguing, inter alia, that plaintiffs claims are moot because defendants have amended their statutes to remedy any constitutional defects that may once have existed. For the following reasons, each motion is granted in part and denied in part.
Plaintiff is an ordained minister and peace activist residing in the Village, which is a municipality located within the Town. Plaintiff sought to hold a peace rally on the Moffat Library lawn (the "Lawn"), a Town-owned property located in the Village, on November 4, 2006. (Id. ¶ 2.) She hoped to attract between forty and seventy-five people, and the event was to feature public speakers. (Id.) On September 25, 2006, plaintiff spoke with an official of the Village about the requirements for holding a rally; that official gave her a permit application (for which plaintiff paid $100) and told her to contact the Town Supervisor. (Id. ¶¶ 2-4.) The Town Supervisor informed plaintiff that the Town Code required her to purchase an insurance policy in order to hold a rally. (Id. ¶ 3.) Plaintiff, who is "unemployed and [has] very limited income," did not believe she could afford the premium on the required insurance policy. (Id. ¶ 5.) The relevant Town Code provision in effect at the time required permit applicants to purchase insurance coverage in the amount of one million dollars "or an amount approved by the Town," (id., Ex. 2); BLOOMING GROVE, N.Y.CODE § 165-4 (1993); the record does not indicate whether the Town Supervisor told plaintiff the amount of coverage that would be required for her event. Plaintiff asked the Town Supervisor if he would be willing to waive the insurance requirement, and he responded: "absolutely not." (Bergstein Aff'm Ex. 1 ¶ 5.)
Plaintiff then brought suit in this Court and sought a preliminary injunction requiring the Town Board to issue her a permit. At a Show Cause Hearing on October 25, 2006, the Court instructed plaintiff to apply for a permit and instructed the Town Board to rule on her application within five days, notwithstanding plaintiffs inability to obtain insurance. On October 30, the Town granted plaintiffs permit request. (Id. ¶ 6.) The rally took place on November 4, and fewer than ten people attended. (Id.) Plaintiff attributes the disappointing turnout to the limited amount of time she had to publicize the rally, which was a result of the fact that she needed to seek court intervention to obtain a permit. (Id.)
Plaintiff subsequently moved for an award of attorney's fees pursuant to 42 U.S.C. § 1988,1 which the Court denied without prejudice. See Coe v. Town of Blooming Grove, 2007 WL 1771562, 2007 U.S. Dist. LEXIS 44566 (S.D.N.Y. June 18, 2007) (Conner, J.). While that motion was pending, plaintiff also moved for summary judgment. The motion for summary judgment was held in abeyance beginning February 21, 2007 to allow defendants an opportunity to amend their local laws to address plaintiffs concerns. The Town did so on February 26, 2007 (Gailey Aff'm, Ex. B at 6), and the Village followed on May 7, 2007. (Id., Ex. C at 6.) (the "2007 Amendments").
Plaintiff believed that the amended statutes were unconstitutional in several respects and filed a Second Amended Complaint challenging them. Defendants responded with the present motion to dismiss, and plaintiff in turn filed a renewed motion for summary judgment, followed by a Third Amended Complaint. At a settlement conference held on December 14, 2007, defense counsel relayed defendants' willingness to amend their local laws once again to address plaintiffs remaining concerns. Although a settlement was not achieved at the conference, and plaintiffs counsel made clear that further amendment of defendants' local laws was unlikely to lead to one, defendants nevertheless amended their statutes in March 2008 (the "2008 Amendments"). Plaintiff responded by filing a Fourth Amended Complaint.
Plaintiff challenges several provisions of the Town and Village Codes in effect at the time she applied for a permit (the "Original" Statutes or Codes), as well as some of the 2007 and 2008 Amendments. Defendants argue that the 2008 Amendments, which are designed to remedy the alleged constitutional shortcomings of the Original Statutes and the 2007 Amendments, make plaintiffs challenges to those earlier versions of the statutes moot. As discussed below, the Court finds that plaintiff has a viable claim for at least nominal damages based on the Town's Original insurance requirement (section 165-4 of the Original Town Code) and the Town's designation (in section 221-9 of its 2007 Amendments) of the Lawn as "not a traditional public forum." All other challenges to repealed provisions of the Original Codes and 2007 Amendments are dismissed as moot.
Section 165-2 of the Original Town Code requires "[t]he applicant and any and all persons using the facilities . . . to indemnify and hold harmless the Town of Blooming Grove for all claims, damages, expenses, costs, etc., including, without limitation, those resulting from the negligence of the town, if any." BLOOMING GROVE, N.Y.CODE § 165-2 (1993). Section 165-3 makes the user "responsible for any damage to the facilities resulting from use under this chapter," makes the user responsible for cleaning up the facility after the event and requires the applicant to submit a refundable damage and clean-up deposit. Section 165-4 states: "The applicant agrees to provide insurance naming the town as an additional insured in the amount of $1,000,000 or an amount approved by the Town of Blooming Grove (a certificate of insurance must accompany the application)."
Plaintiff argues that the Original Town Code is unconstitutional in that it: does not provide objective criteria for the Board to consider in evaluating an application (4th Am. Complt. ¶ 12); does not provide criteria for granting a fee waiver (id. ¶ 13); does not provide criteria by which the Board may adjust the amount of insurance coverage required (id. ¶ 14); and does not exempt indigent applicants from the insurance requirement. (Id. ¶ 16.)
On February 26, 2007, the Town rescinded its Original Code and enacted its 2007 Amendments. Those amendments provide ten objective criteria for the Town Board to consider in reviewing a permit application. See BLOOMING GROVE, N.Y.CODE § 221-10(A) (2007). Plaintiff maintains that the 2007 Amendments are nevertheless unconstitutional because they: limit permits to "bonafide non-profit group[s]" or persons without providing objective factors for determining whether a group is a "bonafide non-profit" (4th Am. Complt. ¶¶ 21-22); require users to cover all cleanup costs regardless of fault and without an exemption for indigent persons (id. ¶ 24); impose an application fee without an indigency exemption and without providing any objective factors to guide the Town Board in waiving or adjusting the fee (id. ¶¶ 25-26); designate the Lawn as "not a traditional public forum" (id. ¶¶ 27-28); allow for appeals of permit denials without providing objective criteria to guide the appellate review (id. ¶ 29); and do not exempt small groups from the permit requirement. (Id. ¶ 31.)
The Town Board passed its 2008 Amendments on March 10, 2008. (3/19/08 Letter from J. Benjamin Gailey, Esq., attorney for defendants, to the Court.) These amendments eliminate the term "bonafide," BLOOMING GROVE, N.Y.CODE § 221-1 (2008); limit the applicant's responsibility for damage and cleanup costs to damage "caused by the applicant or the applicant's group," id. § 221-4; exempt indigent applicants from the permit fee requirement, id. § 221-8; eliminate the statement that the Lawn is "not a traditional public forum," id. § 221-9; and provide that, in ruling on the appeal of a permit denial, the Town Board shall consider only the objective permit-denial standards contained elsewhere in the Code. Id. § 221-11.
In response to the 2008 Amendments, plaintiff sought and was granted leave to file a Fourth Amended Complaint. In it, she alleges that the Town Code as amended in 2008 is unconstitutional for several reasons. Plaintiff first takes issue with section 221-1, which requires applicants seeking to use Town property for a "First Amendment purpose" to apply for a permit at least five days ahead of time. BLOOMING GROVE, N.Y.CODE § 221-1 (2008). The...
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