Perez v. Hoblock

• Decision Date: 18 May 2004
• Docket Number: Docket No. 03-0078.
• Citation: 368 F.3d 166
• Parties: Robert PEREZ, Plaintiff-Appellant, v. Michael J. HOBLOCK, Jr.; Cheryl Buley; Joseph P. Neglia; Edward J. Martin, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

368 F.3d 166

Robert PEREZ, Plaintiff-Appellant, v. Michael J. HOBLOCK, Jr.; Cheryl Buley; Joseph P. Neglia; Edward J. Martin, Defendants-Appellees.

Docket No. 03-0078.

United States Court of Appeals, Second Circuit.

Argued: November 17, 2003.

Decided: May 18, 2004.

COPYRIGHT MATERIAL OMITTED

Alan D. Levine (Joseph A. Faraldo, on the brief), Kew Gardens, New York, for Plaintiff-Appellant.

Michelle Aronowitz, Deputy Solicitor General (Shaifali Puri, Deputy Solicitor General, argued; Marion R. Buchbinder, Senior Assistant Solicitor General, of counsel; Eliot Spitzer, Attorney General of the State of New York, Caitlin J. Halligan, Solicitor General, on the brief), New York, New York, for Defendants-Appellees.

Before: WALKER, Chief Judge, CALABRESI and STRAUB, Circuit Judges.

STRAUB, Circuit Judge:

Plaintiff-Appellant Robert Perez appeals from a judgment entered March 5, 2003 by the United States District Court for the Southern District of New York (Richard M. Berman, Judge), granting summary judgment in favor of Defendants-Appellees Michael J. Hoblock, Jr., Chairman of the New York State Racing and Wagering Board ("Racing Board" or "Board"), Cheryl Buley, member of the Board, Joseph P. Neglia, member of the Board, and Edward J. Martin, the Board's Executive Director. The Racing Board is an administrative agency of the State of New York with "general jurisdiction over all horse racing activities and all pari-mutuel betting activities, both on-track and off-track, in the state and over the corporations, associations, and persons engaged therein." N.Y. RAC. PARI-MUT. WAG. & BREED. LAW § 101(1) (McKinney 2000); see also Capital Dist. Reg'l Off-Track Betting Corp. v. New York State Racing & Wagering Bd., 54 N.Y.2d 154, 157, 445 N.Y.S.2d 55, 429 N.E.2d 733 (1981). Perez is licensed by the Board as an owner of thoroughbred horses.

Perez brought this suit after being fined by the Racing Board for his conduct at an official Stewards' meeting that was held at Perez's request. On appeal, Perez argues that the imposition of the fine, pursuant to N.Y. COMP. CODES R. & REGS. tit. 9, § 4022.13 (2000), effected an unconstitutional restriction on his speech in violation of the First Amendment. He also claims that the regulation, which penalizes "any action detrimental to the best interest of racing generally," see id., is void for vagueness as applied to him. As to Perez's First Amendment claim, we find that the meeting in question was a nonpublic forum and that the restrictions imposed on Perez by the regulation are, therefore, constitutionally permissible because the regulation is both reasonable and viewpoint neutral. As to Perez's void-for-vagueness challenge, we hold that the regulation is not unconstitutionally vague as applied to Perez because Perez's disruptive conduct clearly fell within the ambit of the regulation. Accordingly, we affirm.

BACKGROUND

The events relevant to this case date to August 2000, when Perez requested a meeting with Carmine Donofrio, Dave Hicks and William Hill, the Stewards in charge of the Racing Board's annual meeting.¹ Perez sought an opportunity to present his complaint that Mike Lakow, the Racing Secretary of the New York Racing Association,² was acting unfairly in performing his job of selecting the number of horses to run in particular races.

A. The August 31, 2000 Meeting

On August 31, 2000, the Stewards held a meeting with Lakow and Perez to address Perez's allegations. During the meeting, Perez accused Lakow of "fixing" certain races by manipulating the number of horses in those races in order to favor some horse owners over others. Shortly after the meeting began, Perez became upset. His agitation grew into outbursts that included pounding on the desk, shouting vulgarities, and even threatening to "choke" or "strangle" Lakow.³ The outbursts were so pronounced that one employee working in a different room testified that she could hear the commotion — including shouting and banging on tables — and commented to her coworkers, "God, what the heck is going on back there?"

To curb Perez's escalating temper, Hicks, the Steward who had called the meeting at Perez's request, attempted to escort Perez outside the meeting room so that Perez could settle down. Perez refused to leave the room, however, and instead continued his tirade. The Stewards concluded that because of Perez's behavior — including his "hollering, ... shouting,... cursing, and ... banging on the desk" — the meeting could not continue. As Lakow and the Stewards attempted to exit the meeting, Perez continued ranting and cursing. After Hicks warned Perez to "watch his language," Perez proceeded to call both Hicks and Lakow a "cocksucker." At that point, Hicks fined Perez $500. Perez taunted Hicks to "make it a thousand" and proceeded to curse again. Hicks obliged and raised the fine to $1,000. This escalation continued until Hicks reached the regulation's prescribed maximum fine of $5,000. Perez challenged Hicks to "make it ten," but Hicks explained that he couldn't go that far. By that time, a security guard — who had heard the commotion from a room at least 50 feet away — arrived. Perez left the scene.

After Perez departed, the Stewards discussed the matter, agreed that a fine was appropriate under the regulation and decided to lower Perez's fine to $3,000. See N.Y. COMP. CODES R. & REGS. tit. 9, § 4022.13 (2000) (directing that before a penalty is imposed, "the steward of the board shall give the other two stewards of the meeting a reasonable opportunity to submit recommendations relative to such penalty"). At the time of the incident, section 4022.13, one of the rules and regulations promulgated pursuant to New York's Racing, Pari-Mutuel Wagering and Breeding Law, provided that "the steward of the board is hereby authorized to impose a civil penalty in an amount not to exceed $5,000 for ... any action detrimental to the best interests of racing generally." The penalty notice provided to Perez stated that he was fined for his "display of temper towards the Stewards and the Racing Secretary on August 31, 2000."

B. Perez's Administrative Appeal

After receiving the penalty notice, Perez appealed and was granted an administrative hearing by the Racing Board. See N.Y. COMP. CODES R. & REGS. tit. 9, § 4022.14 (2000) (setting forth appeal procedures). At the hearing, which was held on January 18, 2001, the Executive Director and Designated Hearing Officer rejected Perez's arguments predicated on the First and Fourteenth Amendments. The Hearing Officer found that the Stewards' meeting was "a non-public forum for the purpose of investigating a racing-related complaint" and that, therefore, Perez's conduct could be regulated "as long as the restrictions were not intended to suppress an expression that differed from the public officials' view."

With respect to the nature of Perez's complaint that Lakow was manipulating the size of the field to benefit certain owners, the Hearing Officer indicated that, "if valid, [the complaint] could affect the integrity of the sport." He found, however, that Perez's disruption of the meeting prevented the Stewards from investigating these serious allegations thoroughly. As a result, the Hearing Officer concluded that section 4022.13 was not unconstitutionally vague as applied to Perez's conduct, because "[Perez's] actions were detrimental to the best interests of racing generally, in that he demonstrated disrespect to the stewards and disrupted the stewards' meeting,... ma[king] further investigation into his complaint impossible." Finally, the Hearing Officer recommended reducing Perez's fine from $3,000 to $1,000.

Although the Racing Board upheld the Hearing Officer's other findings, it did not accept his recommendation with respect to the amount of the fine. Instead, the Board affirmed the Stewards' imposition of a $3,000 fine, permitting Perez to pay a reduced fine ($1,250) only if he expressed remorse in an apology to the Stewards.

C. Perez's Lawsuit

On June 19, 2001, Perez filed a complaint in the United States District Court for the Southern District of New York. Perez subsequently filed an amended complaint on July 11, 2001, pursuant to 42 U.S.C. § 1983, seeking: (i) a declaratory judgment finding section 4022.13 unconstitutional both facially and as applied; (ii) a permanent injunction barring the defendants from penalizing him for his behavior; and (iii) a declaratory judgment that the fine levied by defendants pursuant to section 4022.13 was an unconstitutional taking without due process of law.

By order dated February 28, 2002, the District Court granted defendants' summary judgment motion and dismissed the complaint. Perez v. Hoblock, 248 F.Supp.2d 189, 201 (S.D.N.Y.2002). Analogizing state-licensed horse owners to public employees, the court engaged in the balancing analysis for regulating public employee speech mandated by Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Perez, 248 F.Supp.2d at 196-97. The District Court weighed Perez's interest in speaking on matters of public concern against the State's interest in promoting the efficiency of services performed by its employees. In so doing, the court found that Perez was not penalized for commenting on a matter of public concern, but rather for the abusive manner in which he behaved and that, in any event, the disruptiveness of Perez's conduct outweighed any First Amendment value his speech might have had. Id. at 197. The court alternatively observed that Perez's First Amendment claim failed because the Stewards' meeting was a nonpublic forum, and in such a forum, the State could impose restrictions that are reasonably related to maintaining order as long as those restrictions are viewpoint neutral. Id. at 197 n. 11. Finally, the court determined that section 4022.13 was neither overbroad nor unconstitutionally vague. Id. at 197-200. On March 20, 2003, Perez filed a timely...