Children First-Form C With Attachments

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
CIVIL APPEAL PRE-ARGUMENT STATEMENT (FORM C)

1. SEE NOTICE ON REVERSE. 2. PLEASE TYPE OR PRINT. 3. STAPLE ALL ADDITIONAL PAGES
Case Caption: District Court or Agency: Judge:
THE CHILDREN FIRST FOUNDATION, McCurn
NDNY
INC.,
Plaintiff,
Date the Order or Judgment Appealed District Court Docket No.:
from was Entered on the Docket:
04-CV-927 RAYMOND P. MARTINEZ, individually,
11-8-11
and BARBARA J. FIALA, in her official
capacity as Commissioner of the New York
State Department of Motor Vehicles,' Date the Notice of Appeal was Filed: Is this a Cross Appeal?
Defendants.
12-7-11
[Yes [Z]No
Counsel's Name: Address: Telephone No.: Fax No.: E-mail:
Appellant(s):
Attorney(s) for
Zainab A. O1auclhry, NYS Office of
the Attorney General
Ulaintiff
The Capitol (5.18) 474-3429 (518) 473-8963
:l]Defendant Albany, NY 12224
zainab.chaudhry@ag.ny.gov
Attorney(s) for Counsel's Name: Address: Telephone No.: Fax No.:
Appellee(s):
Jeffrey Shafer, Alliance Defense Fund,
[Z]Plaintiff
801 G St., NW, Suite 509, 202-393-8690 202-347-3622
.DDefendant
Washington, DC 20001 jshafer@telladf.org
Has Transcript Approx. Number of Number of Has this matter been before this Circuit previously? [l]Yes D No
Been Prepared? Transcript EJiliibits
Pages: Appended to If Yes, provide the following:
No
Transcript:
None Case Name:
C.F.F., Inc. and Rex v. Martinez, et al.
None
2d Cir. Docket No.: Reporter Citation: (Le., F.3d or Fed. App.)
05-0567-cv 05-1979-cv
ADDENDUM "A": COUNSEL MUST ATTACH TO THIS FORM: (1) A BRIEF, BUT NOT PERFUNCTORY; DESCRIPTION OF THE
NATURE OF THE ACTION; (2) THE RESULT BELOW; (3) A COpy OF THE NOTICE OF APPEAL AND A CURRENT COpy OF
THE LOWER COURT DOCKET SHEET; AND (4) A COPY OF ALL RELEVANT OPINIONS/ORDERS FORMING THE BASIS FOR
THIS APPEAL, INCLUDING TRANSCRIPTS OF ORDERS ISSUED FROM THE BENCH OR IN CHAMBERS.
ADDENDUM "B": COUNSEL MUST ATTACH TO THIS FORM A LIST OF THE ISSUES PROPOSED TO BE RAISED ON APPEAL,
AS WELL AS THE APPLICABLE APPELLATE STANDARD OF REVIEW FOR EACH PROPOSED ISSUE.
PART A: JURISDICTION
I. Federal Jurisdiction 2. Appellate Jurisdiction
D
u.s. a party D Diversity [{] Final Decision D Order by District Judge (Le.,
[l]
Federal question
(U .S. not a party)
D Other (specify):
D
Interlocutory Decision
Appealable As of Right
Fed. R. Civ. P. 54(b
D Other (specify):
IMPORTANT. COMPLETE AND SIGN REVERSE SIDE OF THIS FORM.
...
PARTB: DISTRICT COURT DISPOSITION (Check as many as apply)
I. Stage of Proceedings
D
D
D
D
D
2. Type of Judgment/Order Appealed 3. Relief
Default judgment
,
D Damages:
"-
Dismissal/other jurisdiction
DismissallFRCP 12(b)(l)
-
Dismissal/merit
8
lack of subj. matter juris.
7
Judgment / Decision of the Court Sought: $
---
DismissallFRCP 12(b)(6) Summary judgment Granted: $
--
failure to state a claim
I-
Declaratory judgment
D
Denied: $
--
Dismissall28 U.S.c. 1915(e)(2) :. Jury verdict
frivolous complaint = Judgment NOV
Dismissall28 U.S.C. 1915(e)(2) 8Directed verdict
other dismissal Other (specify):
D Injunctions:
BPreliminary
Permanent
D Denied
Pre-trial
During trial
After trial
I
I. Federal Statutes
-
-
-
Antitrust
I-
Communications
-
Bankruptcy
-
Consumer Protection
-
Banks/Banking
-
Copyright D Patent
-
Civil Rights
-
Trademark
-
Commerce,
-
Election
-
Energy _ Soc. Security
7
Commodities ,..... Environmental
Other (specify): First Amendment
""
5. Other
Forfeiture/Penalty
Real Prop erty
Treaty (specify):
D Other (specify):
PARTC: NATURE OF SUIT (Check as many as apply)
2. Torts 3. Contracts 4. Prisoner Petitions
D Admiralty/ D Admiralty/ D Freedom of Information Act Civil Rights
Immigration Maritime Maritime
Habeas Corpus
Labor DAssault/
,ubi.,'o.
Mandamus
OSHA

Commercial Parole
Securities Employment Vacate Sentence
Tax Products Liability Insurance
D
Other
Other (Specify): Negotiable
[j'struments
Other Specify
6. General 7. Will appeal raise constitutional issue(s)?
I-
Arbitration o Yes D No
/
Attorney Disqualification
r-
Class Action Will appeal raise a matter of first
I-
Counsel Fees impression"
I-
Shareholder Derivative
o Yes D L-
Transfer No
I. Is any matter relative to this appeal still pending below? D Yes, specify: 0No
2. To your knowledge, is there any case presently pending or about to be brought before this Court or another court or administrative agency
which:
(A) Arises from substantially the same case or controversy as this appeal? DYes [lINo
+RL?:s:We.5 f"'-f\t
lfyes, state 0 "A," or 0 "B," or 0 both are applicable, an'ltrovide til the spaces below the following information on the other action(sYC
J,(W
Case Name:
IDocket No. ICitation: ICourt or Agency:
1
e.vu
Name of Appellant:
Date:
Signature of Counsel of
NOTICE TO COUNSEL
Once you have fIled your Notice of Appeal with the District Court or the Tax Court, you have only 14 days in which to complete the following
important steps:
I. Complete this Civil Appeal Pre-Argument Statement (Form C); serve it upon all parties, and file it with the Clerk of the Second Circuit in
accordance with LR 25.1.
2. File the Court of Appeals Transcript Information/Civil Appeal Form (Form D) with the Clerk of the Second Circuit in accordance with LR 25.1.
3. Pay the$455 docketing fee to the United States District Court or the $450 docketing fee to the United States Tax Court unless you are authorized to
prosecute the appeal without payment.
PLEASE NOTE: IF YOU DO NOT COMPLY WITH THESE REQUIREMENTS WITillN 14 DAYS, YOUR APPEAL WILL BE
DISMISSED. SEE LOCAL RULE 12.1.
Children First Foundation v. Martinez et ano.
Docket No. 11-5199
ADDENDUM A
1. This is an action alleging, inter alia, First Amendment violations in connection
with plaintiffs application for a custom license plate containing the phrase
"Choose Life."
2. The District Court granted summary judgment in favor of plaintiffs on the alleged
First Amendment violation and granted summary judgment in favor of defendant
Martinez on qualified immunity grounds.
3. Notice of Appeal and Docket Sheet are attached hereto.
4. Memorandum, Decision and Order dated November 8, 2011 is attached hereto,
as is the Judgment dated November 9, 2011.
Case 1:04-cv-00927-NPM-RFT Document 228 Filed 12/07/11 Page 1 of 2
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
THE CHILDREN FIRST FOUNDATION, INC.,
Plaintiff,
-against-
RAYMOND P. MARTINEZ, individually, and
BARBARA J. FIALA, in her official capacity as
Commissioner of the New York State Department of Motor
Vehicles,
NOTICE OF APPEAL
04-CV-927
(NPM)(RFT)
Defendants.
Notice is hereby given that defendant Fiala hereby appeals to the United States Court of
Appeals for the Second Circuit from the Memorandum, Decision and Order in this action dated
November 8, 20 I I, in its and from any part thereof.
Dated: Syracuse, New York
December 7, 20 I I
ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
Attorney for Defendant Fiala
6 I5 Erie Boulevard West, Suite 102
Syracuse, New York 13204-2465

Senta B. Siuda
Assistant Attorney General, of Counsel
Bar Roll No. 104416
Telephone: (315) 448-4800
To: Brian W. Raum, Esq. (via electronic filing)
Attorney for Plaintiff
Alliance Defense Fund
15100 N. 90
th
Street
Scottsdale, AZ 85260
James Michael Johnson, Esq. (via electronic filing)
401 Market St.
Suite 900
Shreveport, LA 7110 I
Jeffrey A. Shafer, Esq. (via electronic filing)
801 G St. NW
Suite 509
Washington, DC 2000 I
James P. Trainor, Esq. (via electronic filing)
Trainor & Cutler, LLP
2 Memphis Place
Suite 153
Malta, New York 12020
Mark 1. McCarthy, Esq. (via electronic filing)
Attorney for Defendant Martinez
Harris, Beach, PLLC
677 Broadway
Suite 1101
Albany, NY 12207
Case 1:04-cv-00927-NPM-RFT Document 228-1 Filed 12/07/11 Page 1 of2
THE CHILDREN FIRST FOUNDAnON, INC.,
Plaintiff, CERTIFICATE OF
-against- SERVICE
RAYMOND P. MARTINEZ, individually, and 04-CV-927
BARBARA J. FIALA, in her official capacity as
Commissioner of the New York State Department of Motor
(NPM)(RFT)
Vehicles,
Defendants.
I hereby certifY that on December 7, 2011, I electronically filed the following document:
NOTICE OF APPEAL with the Clerk of the District Court using the CM/ECF system, which
sent notification of such filing to the following:
1. Brian W. Raum, Esq.
2. James M. Johnson, Esq.
3. Jeffrey A. Shafer, Esq.
4. James P. Trainor, Esq.
5. Mark J. McCarthy, Esq.
Case 1:04-cv-00927-NPM-RFT Document 228-1 Filed 12/07/11 Page 2 of 2
Dated: Syracuse, New York
December 7,2011
ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
Attorney for Defendant Fiala
615 Erie Boulevard West, Suite 102
Syracuse, New York 13204-2465
B Y : 1 / ~ g . ~
Senta B. Siuda
Assistant Attorney General, of Counsel
Bar Roll No. 104416
Telephone: (315) 448-4800
CMIECF LIVE - U.S. District Court.- NYND Page 1 of 36
APPEAL, CLOSED
u.s. District Court
Northern District of New York - Main Office (Syracuse) [LIVE - Version 4.2] (Albany)
CIVIL DOCKET FOR CASE #: 1:04-cv-00927-NPM-RFT
The Children First Foundation, Inc. et al v. Martinez et al Date Filed: 08/04/2004
Assigned to: Senior Judge Neal P. McCum Date 1110912011
Referred to: Magistrate Judge Randolph F. Treece Jury Demand: Both
Case in other court: SCCA,05-00567-cv Nature of Suit: 440 Civil Rights: Other
Cause: 42:1983 Civil Rights Act
Jurisdiction: Federal Question
Plaintiff
Children First Foundation, Inc. represented by Brian W. Raum
Alliance Defense Fund - AZ Office
15100 N. 90th Street
480-388-8140
Fax: 480-444-0028
Email: braum@telladf.org
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
James Michael Johnson
Alliance Defense Fund - Shreveport LA
Office
P.O. Box 52954
Shreveport, LA 71135
318-603-1435
Fax: 318-603-1437
Email: mjohnson@law.lacollege.edu
LEAD ATTORNEY
James P. Trainor
Cutler, Trainor Law Firm
2 Hemphill Place, Suite 153
Malta, NY 12020
518-899-9200
Fax: 518-899-9300
Email: jamest@ctclawfirm.com
Jeffrey A. Shafer
Alliance Defense Fund - DC Office
801 G Street NW
Suite 509
Washington, DC 20001
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Plaintiff
Elizabeth Rex
Dr.
TERMINATED: 0810612007
Plaintiff
Elizabeth Rex
V.
Defendant
Raymond P. Martinez
individually
202-393-8690
Fax: 202-347-3622
Email: jshafer@telladf.org
represented by Brian W. Raum
(See above for address)
LEAD ATTORNEY
James Michael Johnson
LEAD ATTORNEY
Jeffrey A. Shafer
represented by Krista A. Rock
New York State Attorney General
Albany Office
The Capitol
Albany, NY 12224
518-474-3602
Fax: 518-473-1572
Email: Krista.Rock@oag.state.ny.us
LEAD ATTORNEY
David M. Finkelstein
Albany Office
The Capitol
Albany, NY 12224
518-402-4579
Fax: 518-473-1572
Email: david.finkelstein@oag.state.ny.us
Kate H. Nepveu
https://ecf.nynd.uscourts.gov/cgi-biniDktRpt.pl?116423837387842-L_452 0-1 12/7/2011
Defendant
Jill A. Dunn
individually
TERMINATED: 04/24/2009
Albany Office
The Capitol
Albany, NY 12224
518-474-7201 (Main)
Fax: 518-473-8963
Email: Kate.Nepveu@oag.state.ny.us
Mark J. McCarthy
Harris, Beach Law Firm - Albany Office
677 Broadway
Suite 1101
Albany, NY 12207
518-427-9700
Email:
MMCCARTHY@HARRISBEACH.COM
A ITORNEY TO BE NOTICED
Michael G. McCartin
Office of Attorney General - Albany
The Capitol
Albany, NY 12224
518-474-8370 (Main)
Fax: 518-473-1572
Email: michael.mccartin@oag.state.ny.us
Nancy G. Groenwegen
New York State Department of Civil
Service
State Campus, Building #1
Albany, NY 12239
518-457-2487
Email: nancy.groenwegen@cs.state.ny.us
represented by Krista A. Rock
LEADAITORNEY
Linda J. Clark
Hiscock, Barclay Law Firm - Albany
Office
80 State Street
Albany, NY 12207
518-434-2163
12/7/2011 https://ecf.nynd.uscourts.gov/cgi-bin/DktRpt.pl?116423837387842-L_ 452 0-1
Fax: 518-427-3498
Email: lclark@hiscockbarclay.com
LEAD ATTORNEY
David M. Cost
Hiscock, Barclay Law Firm - Albany
Office
80 State Street
Albany, NY 12207
518-429-4286
Fax: 518-533-2913
Email: dcost@hiscockbarclay.com
David M. Finkelstein
Kate H. Nepveu
Michael J. Grygiel
Greenberg, Traurig Law Firm - Albany
Office
54 State Street
6th Floor
Albany, NY 12207
518-689-1406
Fax: 518-677-1861
Email: grygielm@gtlaw.com
Michael G. McCartin
Nancy G. Groenwegen
Defendant
David A. Paterson represented by Senta B. Siuda
in his official capacity as Governor of Office of Attorney General - Syracuse
the State ofNew York Office
TERMINATED: 04/24/2009 615 Erie Boulevard West
Suite 102
Syracuse, NY 13204-2455
315-448-4800
https://ecf.nynd.uscourts.gov/cgi-bin/DktRpt.pl?116423837387842-L 452 0-1 12/7/2011
CMIECF LIVE - U.S. District Court - NYND Page 5 of36.
Fax: 315-448-4853
Email: senta.siuda@ag.ny.gov
LEAD ATTORNEY
Kate H. Nepveu
Nancy G. Groenwegen
Defendant
George E. Pataki represented by Krista A. Rock
individually (See above for address)
TERMINATED: 04/24/2009 TERMINATED: 08/06/2007
LEAD ATTORNEY
Laura M. Midwood
Hoguet, Newman Law Firm
10 East 40th Street
New York, NY 10016
212-689-8808
Fax: 212-689-5101
Email: lmidwood@hnrklaw.com
LEAD ATTORNEY
Elizabeth Anne Musella
10 East 40th Street
New York, NY 10016
212-689-8808
Fax: 212-689-5101
Email: amusella@hnrlaw.com
Ira J. Lipton
10 East 40th Street
New York, NY 10016
212-689-8808
Fax: 212-689-5101
Email: ilipton@hnrlaw.com
Juan A Skirrow
10 East 40th Street
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CMIECF LIVE - U.S. District Court - NYND Page 6 of36
Defendant
Neal Schoen
in his official capacity as Deputy
Commissioner and Counsel to the New
York State Department ofMotor
Vehicles
Defendant
Barbara J. Fiala
formerly known as
David 1. Swartz
New York, NY 10016
212-689-8808
Fax: 212-689-5101
Email: JSkirrow@hnrklaw.com
Kate H. Nepveu
TERMINA TED: 04/13/2007
Nancy G. Groenwegen
represented by Senta B. Siuda
LEAD ATTORNEY
represented by Senta B. Siuda
LEAD ATTORNEY
Date Filed # Docket Text
08/0412004
1
COMPLAINT with Appendix #s 1 thru 3, against Jill A. Dunn, Raymond P.
Martinez, George E. Pataki, Eliot Spitzer ( Filing fee $ 150 receipt number
75199.), filed by Elizabeth Rex, The Children First Foundation, Inc..
(Attachments: # 1 Appendix, #s 4 thru 18)(wb1, ) (Entered: 08/1 012004)
08/0412004 Summons Issued as to Jill A. Dunn, Raymond P. Martinez, George E. Pataki,
Eliot Spitzer. (wbl, ) (Entered: 08/1 012004)
08/0412004
2
G.O. 25 FILING ORDER ISSUED Initial Conference set for 12/112004 10:00
AM in Albany before Magistrate Judge Randolph F. Treece. Civil Case
Management Plan due by 1112212004. (wbl,) (Entered: 08/1012004)
09/1612004
1
Letter for Jill A. Dunn, Raymond P. Martinez, George E. Pataki, Eliot Spitzer
requesting that defendants' response to the Complaint be due 11/15/04.
(Nepveu, Kate) (Entered: 09/1612004)
09/16/2004
'1
REQUEST & ORDER, Answer due date updated for Jill A. Dunn, answer
due 11/1512004; Raymond P. Martinez, answer due 11/1512004; George E.
Pataki, answer due 11/1512004; Eliot Spitzer, answer due 11/1512004. Signed
by Judge Randolph F. Treece on 9/16/04. (wjg,) (Entered: 09/18/2004)
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11/09/2004
~
Letter for Jill A. Dunn, Raymond P. Martinez, George E. Pataki, Eliot Spitzer
requesting permission to file a memorandum of law in support of defendants'
forthcoming motion to dismiss of not more than thirty pages. (Nepveu, Kate)
(Entered: 11/09/2004)
11/09/2004
2
Letter/ request and ORDER; counsel request to file a brief not to exceed 30
pages in support of defts. motion; So Ordered. Signed by Judge Neal P.
MeCum on 11/9/04. (kc1, ) (Entered: 11/16/2004)
11/10/2004 Q NOTICE of the Court re 2 G.O. 25 Filing Order, adjourning rule 16
conference without date pending filing of Dispositive Motion (tab) (Entered:
11/10/2004)
11/15/2004
1
MOTION to Dismiss Motion Hearing set for 12/28/2004 09:30 AM in
Syracuse before Senior Judge Neal P. MeCum. Response to Motion due by
12/13/2004 Reply to Response to Motion due by 12/17/2004. by Jill A. Dunn,
Raymond P. Martinez, George E. Pataki, Eliot Spitzer. (Attachments: # 1
Cover letter# 2 Memorandum of Law # .3. Appendix # 1. Appendix)(Nepveu,
Kate) (Entered: 11/15/2004)
11/15/2004
~
CERTIFICATE OF SERVICE by Jill A. Dunn, Raymond P. Martinez,
George E. Pataki, Eliot Spitzer re 1 MOTION to Dismiss (Nepveu, Kate)
(Entered: 11/15/2004)
11/16/2004 10 LETTER ORDER: setting Hearing on Motion, Re: 1 MOTION to Dismiss,
Motion Hearing set for 12/29/2004 at 2:00 PM in Syracuse before Senior
Judge Neal P. MeCum. The Court requests that a courtesy paper copy of all
future documents e-filed in this matter be sent to the Court for Chambers use.
Gmb) (Entered: 11/18/2004)
11/22/2004
11
SCHEDULING NOTICE: Re: 1 MOTION to Dismiss: Motion Hearing reset
to 1/4/2005 at 11 :00 AM in Syracuse before Senior Judge Neal P. MeCum.
Gmb) (Entered: 11/29/2004)
11/24/2004
12
REQUEST & ORDER: Re: 11 Scheduling Notice, the parties request that the
deadline for the response and reply be extended as to the 1 MOTION to
Dismiss: request granted. Response to Motion deadline reset to 12/20/2004.
Reply to Response to Motion deadline reset to 12/28/2004. Motion Hearing is
set for 1/4/2005 at 11 :00 AM in Syracuse before Senior Judge Neal P.
MeCum. Gmb) (Entered: 11/29/2004)
12/20/2004
U
RESPONSE in Opposition re 1 MOTION to Dismiss Complaint filed by The
Children First Foundation. (Attachments: # 1 Certificate of Service)(Raum,
Brian) (Entered: 12/20/2004)
12/28/2004 14 REPLY to Response to Motion re 1 MOTION to Dismiss filed by Jill A.
Dunn, Raymond P. Martinez, George E. Pataki, Eliot Spitzer. (Attachments: #
1 Cover Letter# 2 unpublished case)(Nepveu, Kate) (Entered: 12/28/2004)
12/28/2004
U
CERTIFICATE OF SERVICE by Jill A. Dunn, Raymond P. Martinez,
George E. Pataki, Eliot Spitzer re 14 Reply to Response to Motion (Nepveu,
01/04/2005 16 Minute Entry for proceedings held before Judge Neal P. MeCum: Motion
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12/7/2011
Hearing held on 1/412005 re 1 MOTION to Dismiss filed by George E.
Pataki, et al; Motion dismissed in part, Denied in part; Discovery due by
5/412005. Motions to be filed by 6/1512005. Case will be deemed trial ready
8/2005, Court will issue a pretrial scheduling order re: the same; Defts. to file
their answer by 2/1/05(Court Reporter Eileen McDonough) (kcl, ) (Entered:
01/05/2005)
0111012005 17 TRANSCRIPT OF MOTION HEARING: held on January 4, 2005 before
Judge Neal P. MeCum. Court Reporter: Eileen McDonough. {Document not
available for electronic view} Gmb) (Entered: 01/11/2005)
01/1912005
II
MOTION for Reconsideration re 16 Motion Hearing" Set Scheduling Order
Deadlines" Set Trial Management Order Deadlines, Motion Hearing set for
2/22/2005 10:00 AM in Syracuse before Senior Judge Neal P. MeCum.
Response to Motion due by 2/712005 Reply to Response to Motion due by
2/11/2005. by Raymond P. Martinez, Jill A. Dunn, Eliot Spitzer, George E.
Pataki. (Attachments: # 1 Declaration # 2 Exhibit(s) A to Nepveu Decl.# l
Memorandum of Law)(Nepveu, Kate) (Entered: 01/1912005)
01/1912005 19 CERTIFICATE OF SERVICE by Raymond P. Martinez, Jill A. Dunn, Eliot
Spitzer, George E. Pataki re II MOTION for Reconsideration re 16 Motion
Hearing" Set Scheduling Order Deadlines" Set Trial Management Order
Deadlines, (Nepveu, Kate) (Entered: 01/19/2005)
Spitzer, George E. Pataki re II MOTION for Reconsideration re 16 Motion
Deadlines, on J Michael Johnson by mail (Nepveu, Kate) (Entered:
0112012005)
02/0112005
21
ANSWER to Complaint with Jury Demand by Raymond P. Martinez, Jill A.
Dunn, Eliot Spitzer, George E. Pataki.(Nepveu, Kate) (Entered: 02/01/2005)
Spitzer, George E. Pataki re 21 Answer to Complaint (Nepveu, Kate)
(Entered: 02/0212005)
02/0212005 23 NOTICE OF APPEAL from the decision and order in this action announced
from the bench on January 4, 2005, the minutes ofwhich were entered on
January 5, 2005 by Raymond P. Martinez, Jill A. Dunn, Eliot Spitzer, George
E. Pataki. (Nepveu, Kate) (Entered: 02/0212005)
02/0312005 Appeal Filing fee Paid: $ 255.00, receipt number ALB000461 (ban) (Entered:
02/0312005)
02/0312005 24 ELECTRONIC NOTICE sent to US Court of Appeals re 23 Notice of Appeal
(tab) (Entered: 02/0312005)
02/07/2005 25 RESPONSE in Opposition re II MOTION for Reconsideration re 16 Motion
Deadlines, Memorandum ofLaw in Opposition to Defendants' Motion to
Reconsider filed by The Children First Foundation. (Raum, Brian) (Entered:
02/07/2005)
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02/11/2005 26 REPLY to Response to Motion re li MOTION for Reconsideration re 16
Motion Hearing" Set Scheduling Order Deadlines" Set Trial Management
Order Deadlines, filed by Raymond P. Martinez, Jill A. Dunn, Eliot Spitzer,
George E. Pataki. (Nepveu, Kate) (Entered: 02/11/2005)
02/15/2005 27 Letter for Raymond P. Martinez, Jill A. Dunn, Eliot Spitzer, George E. Pataki
requesting a stay of discovery while defendants' motion for reconsideration is
pending. (Nepveu, Kate) (Entered: 02/15/2005)
02/18/2005 28 ORDER: granting # 27 Letter Request filed by George E. Pataki, Eliot
Spitzer, Raymond P. Martinez, Jill A. Dunn, to Stay discovery until the # li
motion for reconsideration has been resolved. Signed by Judge Neal P.
McCum on 2/18/05. (jmb) (Entered: 02/18/2005)
03/02/2005 29 USCA Scheduling Order as to 23 Notice of Appeal filed by George E.
Pataki" Eliot Spitzer" Raymond P. Martinez" Jill A. Dunn,. USCA Case No.
05-0567-cv. Appealed to: SCCA. Appeal Index to the Record due by
3/25/2005. (tab) (Entered: 03/03/2005)
03/03/2005 30 ELECTRONIC CERTIFICATION toUS Court of Appeals of Record on
Appeal re 23 Notice of Appeal (tab) (Entered: 03/03/2005)
03/14/2005
11
MEMORANDUM-DECISION & ORDER: denying the # li Motion for
Reconsideration, and further the Court Orders that the Stay that was granted
on 2/18/05 be lifted. Signed by Judge Neal P. McCum on 3/14/05. (jmb)
(Entered: 03/15/2005)
04/05/2005 32 NOTICE OF APPEAL as to 11 Order on Motion for Reconsideration by
Raymond P. Martinez, Jill A. Dunn, Eliot Spitzer, George E. Pataki. (Nepveu,
04/05/2005 Appeal Filing fee: $ 255.00, receipt number ALB000927 (wbl, ) (Entered:
04/05/2005)
04/25/2005 33 ELECTRONIC NOTICE sent to US Court of Appeals re 32 Notice of
Appeal, 23 Notice of Appeal (tab) (Entered: 04/25/2005)
08/10/2005 34 ORDER Vacating document 16 in so far as it sets forth a timetable for
Discovery. A new scheduling order for Discovery and Dispositive motions, if
any, will be issued by the Court following consideration and determination by
the Second Circuit; Signed by Judge Neal P. McCum on 8/10/05. (kcl,)
(Entered: 08/11/2005)
03/30/2006 35 MANDATE of USCA that the appeal from the judgment of the district court
is dismissed as to 32 Notice of Appeal filed by George E. Pataki" Eliot
Spitzer" Raymond P. Martinez" Jill A. Dunn" 23 Notice of Appeal filed by
George E. Pataki" Eliot Spitzer" Raymond P. Martinez" Jill A. Dunn. (wjg, )
(Entered: 03/31/2006)
04/24/2006 36 NOTICE of Appearance by Nancy G. Groenwegen on behalf of Raymond P.
Martinez, Jill A. Dunn, Eliot Spitzer, George E. Pataki (Groenwegen, Nancy)
(Entered: 04/24/2006)
04/24/2006 37 COURT OF APPEALS VERIFIED BILL OF COSTS by Children First
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Foundation, Inc. (tab) (Entered: 04/25/2006)
NOTICE of Hearing: Initial Conference set for 5/31/200610:00 AM in
Albany before Magistrate Judge Randolph F. Treece. Civil Case Management
Plan due by 5/22/2006. (tab) (Entered: 04/25/2006)
NOTICE of Appearance by Krista A. Rock on behalf of Raymond P.
Martinez, Jill A. Dunn, Eliot Spitzer, George E. Pataki (Rock, Krista)
(Entered: 05/09/2006)
CERTIFICATE OF SERVICE by Raymond P. Martinez, Jill A. Dunn, Eliot
Spitzer, George E. Pataki re 39 Notice of Appearance in substitution for
Nancy Groenwegen, Esq. and Kate Nepveu, Esq. (Rock, Krista) (Entered:
05/09/2006)
NOTICE of Appearance by Jeffrey A. Shafer on behalf of Children First
Foundation, Inc., Elizabeth Rex (Shafer, Jeffrey) (Entered: 05/11/2006)
04/25/2006 38
05/09/2006 39
05/09/2006 40
05/11/2006 41
OS/22/2006 42 CIVIL CASE MANAGEMENT PLAN by Children First Foundation, Inc.,
Raymond P. Martinez, Jill A. Dunn, Eliot Spitzer, George E. Pataki. (Rock,
Krista) (Entered: OS/22/2006)
NOTICE by Children First Foundation, Inc., Elizabeth Rex Notice ofService
ofPlaintiffs' Rule 26(a)(1) Initial Disclosures (Shafer, Jeffrey) (Entered:
05/31/2006)
Minute Entry for proceedings held before Judge Randolph F. Treece: Initial
Pretrial Conference held on 5/31/2006 (tab) (Entered: 06/06/2006)
05/31/2006 43
05/31/2006 44
06/05/2006 45 UNIFORM PRETRIAL SCHEDULING ORDER: Anticipated length of trial:
3-5 days Gury trial). Preferred Trial Location: Albany, NY. Joinder of Parties
due by 8/31/2006. Amended Pleadings due by 8/31/2006. Discovery due by
2/28/2007. Motions to be filed by 4/16/2007. Trial Ready Deadline is
4/16/2007. Signed by Judge Randolph F. Treece on 6/5/06. (tab) (Entered:
06/06/2006)
Letter Motion from Jeffrey A. Shafer for Children First Foundation, Inc.,
Elizabeth Rex requesting Extension of Time to File Amended Complaint
submitted to Judge Randolph F. Treece. (Shafer, Jeffrey) (Entered:
08/31/2006)
.
TEXT ORDER granting 46 Plaintiffs Letter Request to extend the time to file
a Motion to Amend Pleadings to September 8, 2006. A Motion to Amend
cannot be served or filed without first conferring with the Defendants, and if
there is no agreement between the parties that the parties must meet and
confer with the Court. No Motion can be filed without permission of the
Court. But if permission is granted, the Motion to Amended Pleadings shall
be due by 9/8/2006. The Court also wishes to advise the parties that it is not
prudent to wait until the expiration date to seek an extension as they have
done here. Last minute requests may not be granted. SO ORDERED. Signed
by Judge Randolph F. Treece on 8/31/06. (Treece, Randolph) (Entered:
08/31/2006)
STIPULAnON ofParties to File First Amended Complaint by Children First
08/31/2006 46
08/31/2006 47
09/08/2006 48
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Foundation, Inc., Elizabeth Rex submitted to Judge Treece. (Shafer, Jeffrey)
(Entered: 09/08/2006)
09/08/2006 49 AMENDED COMPLAINT for Declaratory and Injunctive Reliefand
Damages against all defendants filed by Children First Foundation, Inc.,
Elizabeth Rex. (Attachments: # 1 Exhibit(s))(Shafer, Jeffrey) (Entered:
09/08/2006)
09/08/2006 50 STIPULATION AND ORDER, Answer due date updated for Raymond P.
Martinez answer due 10/11/2006; Jill A. Dunn answer due 10/11/2006; Eliot
Spitzer answer due 10/11/2006; George E. Pataki answer due 10/11/2006.
Signed by Judge Randolph F. Treece on 9/8/06. (tab) (Entered: 09/11/2006)
10/11/2006
51
ANSWER to Amended Complaint by Nancy Naples, Raymond P. Martinez,
Jill A. Dunn, George E. Pataki.(Rock, Krista) (Entered: 10/11/2006)
10/12/2006 52 CERTIFICATE OF SERVICE by Nancy Naples, Raymond P. Martinez, Jill
A. Dunn, George E. Pataki re 51 Answer to Amended Complaint (Rock,
Krista) (Entered: 10/12/2006)
12/29/2006 53 STIPULATION as to bifurcation, and as to deposition ofGovernor by Nancy
Naples, Children First Foundation, Inc., Raymond P. Martinez, Jill A. Dunn,
George E. Pataki submitted to Judge Treece. (Shafer, Jeffrey) (Entered:
12/29/2006)
12/29/2006 54 TEXT NOTICE and ORDER by the Court. The parties have filed with the
Court a Stipulation seeking a stay of discovery of damages pending motions
for summary judgment, permission to engage in discovery of damages
depending on how and when the District Court and the Second Circuit rules,
and, futher, there is an agreement not to depose Governor Pataki unless it is
establish that the Governor had first hand knowledge of the determination at
issue in this case. Dkt. No. 53 Stipulation. Before the Court rejects the
Stipulation we will give the parties an opportunity to be heard. On its face,
the Court is not inclined to accept a bifurcation of discovery stipulation but
may be inclined to accept the agreement not to depose Governor Pataki. It is
the Court's view that there is no reason to bifurcate the discovery of damages,
even if it is convenient for the parties. The parties are directed to provide
forthwith to this Court dates and times that they are available for a telephonic
conference during the week ending January 5, 2007.(Treece, Randolph)
(Entered: 12/29/2006)
12/29/2006 55 Letter Motion from Michael McCartin for Nancy Naples, Raymond P.
Martinez, Jill A. Dunn requesting Conf. Call Re Dkt. No. 54 submitted to
Judge Treece. (McCartin, Michael) (Entered: 12/29/2006)
01/03/2007 TEXT ORDER granting 55 Letter Request: A Telephone Conference is
hereby set in this matter for 1/5/2007 at 10:30 AM before Magistrate Judge
Randolph F. Treece. The Court shall initiate the Conference Call. Signed by
Judge Randolph F. Treece on 1/03/07.(rlh) (Entered: 01/03/2007)
01/05/2007 Minute Entry for proceedings held before Judge Randolph F. Treece: Jeffrey
Schaffer, Esq.; Brian Raurn, Esq.; Michael McCartin, Esq.; and Ira Lipton,
Esq. - Telephone Discovery Hearing held on On the Record 1/5/2007; Order
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to be issued. (CRD Hinman) (rzh, ) (Entered: 01/05/2007)
01/05/2007 56 STIPULATION/ORDER. Signed by Judge Randolph F. Treece on 1/5/07.
(ban) (Entered: 01/08/2007)
01/26/2007 57 Letter Motion from Brian W. Raum for Children First Foundation, Inc.
requesting Telephone Conference submitted to Judge Treece. (Raum, Brian)
(Entered: 01/26/2007)
01/26/2007 58 TEXT ORDER: Plaintiffs Letter Request, 57 , is granted. A telephone
conference was held on January 26, 2007. The Court discussed the matter set
forth in Plaintiffs Letter. Based upon the conversation, Plaintiff is hereby
given permission to file a motion for sanctions. Signed by Judge Randolph F.
Treece on 1/26/07. (sn) (Entered: 01/26/2007)
01/26/2007 Minute Entry for proceedings held before Judge Randolph F. Treece: Brian
Raum, Esq.; Michael McCartin, Esq.; Telephone Conference held on
1/26/2007; order to be issued. (rzh, ) (Entered: 01/26/2007)
01/31/2007 59 NOTICE of Appearance by Ira J. Lipton on behalf of George E. Pataki
(Lipton, Ira) (Entered: 01/31/2007)
02/22/2007 60 Joint Letter Motion from AAG Krista Rock on behalf of all parties for
Raymond P. Martinez requesting that the discovery deadline be extended
until May 31, 2007, and that the dispositive motion deadline be extended until
July 16, 2007 submitted to Judge Treece. (Rock, Krista) (Entered:
02/22/2007)
02/22/2007 61 NOTICE of Appearance by Linda J. Clark on behalf of Jill A. Dunn (Clark,
Linda) (Entered: 02/22/2007)
02/23/2007 62 TEXT ORDER granting Dkt. No. 60 , ajoint Letter Request seeking to
extend the discovery deadline to accommodate depositions of at least twelve
witnesses and parties. Inasmuch as this Order will be extending the discovey
deadline to permit solely these depositions, the Court's previous ruling that
any disagreement over "paper" discovery must be submitted to this Court on
or before March 10,2007, or forever be waived, still stands. Dkt. No. 56. We
also note that by the same order, discovery as to damages is stayed pending
the resolution of any motion for summary judgment as to the issue of liability.
Therefore, based upon the foregoing, it is hereby ordered that the amended
Pretrial Scheduling Order is hereby amended, once again, but only for the
purpose of permitting depositions, as follows: (1) Discovery to be completed
by 5/31/2007; (2) Final Date for Dispositive Motions shall be 7/16/2007; (3)
all other provisions of the Scheduling Order remain in effect. No further
extensions will be considered. SO ODERED. Signed by Judge Randolph F.
Treece on 2/22/07. (Treece, Randolph) (Entered: 02/23/2007)
02/23/2007 63 Letter Motion from Linda J. Clark for Jill A. Dunn requesting Revisions to
Discovery Schedule submitted to Judge Randolph F. Treece. (Clark, Linda)
(Entered: 02/23/2007)
02/27/2007 TEXT NOTICE: Based upon the Letter Request submitted, Dkt. No. 63 , the
Court will conduct a telephone conference. All parties are to contact
Chambers and provide dates and times they are available for a telephone
conference for the weeks of February 26 and March 5, 2007. If a party fails to
contact the Court, it will be assumed the party does not wish to participate.
Signed by Judge Randolph F. Treece on 2/27/07. (sn) (Entered: 02/27/2007)
02/27/2007 64 Letter Motion from L. Clark for Jill A. Dunn requesting sufficient time to
conduct document discovery and responding to Court's request for conference
dates submitted to Judge Treece. (Clark, Linda) (Entered: 02/27/2007)
03/01/2007 TEXT NOTICE: Based upon Defendant Dunn's Letter Requests, 63 & 64 , a
telephone conference has been scheduled for March 7,2007, at 3:30 p.m. Due
to the number of attorneys who will be participating, the Court asks Counsel
for Defendant Dunn, Linda Clark, to initiate the conference call on the
specified date and time. Therefore, all counsels participating in the conference
should contact Attorney Clark with phone numbers at which they can be
reached for the conference. Signed by Judge Randolph F. Treece on 3/1/07.
(sn) (Entered: 03/01/2007)
03/02/2007 65 NOTICE of Appearance by Elizabeth Anne Musella on behalf of George E.
Pataki (Musella, Elizabeth) (Entered: 03/02/2007)
03/07/2007 Minute Entry for proceedings held before Judge Randolph F. Treece:
Telephone Discovery Conference held on 3/7/2007 with appearances by
Brian Raum for Plaintiffs, Krista Rock and Mike McCartin for Defendants
Martinez, Spitzer, and Naples, Linda Clark for Defendant Dunn, and Ira
Lipton and Anne Musella for Defendant Pataki. Order to follow. 50 min. (sn)
(Entered: 03/07/2007)
03/07/2007 66 TEXT ORDER: A telephone conference was held on March 7, 2007, to
address several issues. Based upon rulings made during the conference, it is
hereby Ordered that: (l) Defendant Dunn is permitted to file a Motion to
Amend her answer. Said Motion shall be served and filed on or before March
22, 2007. Opposition to Said Motion to Amend shall be served and filed on or
before March 30, 2007. The Motion shall be on submit; (2) the last date to
address discovery disputes by Motion shall be May 31,2007; 3) Defendant
Dunn is permitted to serve one last round of Demands for Interrogatories and
Prodcution which address solely the First Amendment; and (4) Plaintiff shall
file a Status Report on April 30, 2007. IT IS SO ORDERED. Signed by Judge
Randolph F. Treece on 3/7/07. (Treece, Randolph) (Entered: 03/07/2007)
03/22/2007 67 MOTION to Amend/Correct Answer to Plaintiff's First Amended Complaint
Motion Hearing set for 4/5/200709:30 AM in Albany before Magistrate
Judge Randolph F. Treece.,Response to Motion due by 3/19/2007 by Jill A.
Dunn. (Attachments: # 1 Exhibit(s) Exhibit A# 2 Exhibit(s) Exhibit B# 1
Exhibit(s) Exhibit C#:! Memorandum of Law Memorandum of Law in
Support of Defendant Jill A. Dunn's Motion for Leave to Amend Her Answer
to the First Amended Complaint) Motions referred to Randolph F. Treece.
(Clark, Linda) (Entered: 03/22/2007)
03/22/2007 68 CERTIFICATE OF SERVICE by Jill A. Dunn re 67 MOTION to
Amend/Correct Answer to Plaintiff's First Amended Complaint (Clark, Linda)
(Entered: 03/22/2007)
CM/ECF LIVE - U.S. District Court - NYND Page 14 of 36
03/22/2007 69 NOTICE of Appearance by Michael J. Grygiel on behalf of Jill A. Dunn
(Grygiel, Michael) (Entered: 03/22/2007)
03/23/2007 70 Letter Briefand Letter Motion from Michael McCartin for Nancy Naples,
Raymond P. Martinez, Eliot Spitzer requesting a telephone conference with
the Court submitted to Judge Treece. (McCartin, Michael) (Entered:
03/23/2007)
03/23/2007 Set/Reset Deadlines as to 67 MOTION to Amend/Correct Answer to
Plaintiffs First Amended Complaint. In accordance with Judge Treece's Text
Order, dated 3/7/07 (Dkt. No. 66) a Response to Motion due by 3/30/2007.
No Reply is authorized. The matter shall be taken on submit. (rlh) (Entered:
03/23/2007)
03/26/2007 71 TEXT ORDER taking under advisement 70 Letter Request. All other parties
are to respond to State Defendants' Letter-Request with their respective
Letter-Memorandum by March 27, 2007, at 3:00 p.m. Those responding do
not have to provide case law - the court is familiar with the law - but should
provide a legal and factual discussion as to the issues raised by State
Defendants. Further, the parties are directed to provide the dates and times
during the week ending March 30, 2007, for a telephone conference, and the
telephone number by which they can be reached. If more than four parties
will be participating in the telephone conference, the State Defendants will be
responsibile for setting up the telephone conference. SO ORDERED. Signed
by Judge Randolph F. Treece on 3/26/07. (Treece, Randolph) (Entered:
03/26/2007)
03/26/2007 72 LETTER BRIEF advising the Court that the State Defendants take no
position with respect to the motion by Hiscock & Barclay, LLP seeking leave
to file an Amended Answer to the First Amended Complaint on Ms. Dunns
behalf (Dkt. No. 67) by Raymond P. Martinez, Jill A. Dunn, Eliot Spitzer.
(Rock, Krista) (Entered: 03/26/2007)
03/26/2007 73 Letter Motion from Ira J. Lipton for George E. Pataki requesting Telephone
conference submitted to Judge Treecejoining requests by State defendants.
03/27/2007 74 LETTER BRIEF pursuant to Court's text order dated 3/26/07 (Dkt. #71) by
Jill A. Dunn. (Clark, Linda) (Entered: 03/27/2007)
03/27/2007 75 RESPONSE in Opposition re 73 Letter Motion from Ira J. Lipton for George
E. Pataki requesting Telephone conference submitted to Judge Treece joining
requests by State defendants, 70 Letter Briefand Letter Motion from Michael
McCartin for Nancy Naples, Raymond P. Martinez, Eliot Spitzer requesting a
telephone conference with the Court submitted to Judge Treece Opposition to
Motion filed by Children First Foundation, Inc.. (Raum, Brian) (Entered:
03/27/2007)
03/28/2007 TEXT NOTICE: A telephone conference has been scheduled for March 30,
2007, at 9:45 a.m. The Court will initiate the conference call. Signed by Judge
Randolph F. Treece on 3/28/07. (sn) (Entered: 03/28/2007)
03/28/2007 76 Letter Motion from Linda J. Clark for Jill A. Dunn requesting in person
1 ')/'7r>f\ll
appearance at March 30th conference submitted to Judge Randolph F. Treece.
(Clark, Linda) (Entered: 03/28/2007)
03/29/2007 77 ***STRICKEN, as per Text Order of Magistrate Judge Treece***LETTER
BRIEF in Reply by Nancy Naples, Raymond P. Martinez, Jill A. Dunn, Eliot
Spitzer. (McCartin, Michael) Modified on 4/2/2007 (tab). (Entered:
03/29/2007)
03/29/2007 TEXT ORDER TO STRIKE: The Clerk of the Court shall strike State
Defendants' Reply Letter, Dkt. No. 77, as it was unauthorized. The parties
shall not file any further letter-briefs on this matter. If, after the conference,
the Court determines that further briefing is necessary as to all parties, the
Court shall set forth a briefing schedule. The Court will not entertain any
further letters from any party prior to the Conference currently set for
3/30/07. Signed by Judge Randolph F. Treece on 3/29/07.(rlh) (Entered:
03/29/2007)
03/29/2007 78 RESPONSE in Opposition re 67 MOTION to Amend/Correct Answer to
Plaintiffs First Amended Complaint filed by Children First Foundation, Inc..
(Raum, Brian) (Entered: 03/29/2007)
03/30/2007 79 Minute Entry for proceedings held before Judge Randolph F. Treece:
Discovery Hearing held on 3/30/2007(rlh) (Entered: 03/30/2007)
03/30/2007 80 Minute Entry for proceedings held before Judge Randolph F. Treece: Ex
Parte, Off Record Hearing held on 3/30/2007(rlh) (Entered: 03/30/2007)
03/30/2007
1
Minute Entry for proceedings held before Judge Randolph F. Treece:
Scheduling Conference held on 3/30/2007 (rlh) (Entered: 03/30/2007)
03/30/2007 82 ORDER re 79 Discovery Hearing Motions to Compel to be filed by
4/13/2007. Discovery is stayed and current scheduling order deadlines are
adjourned. Signed by Judge Randolph F. Treece on 3/30/07. (tab) (Entered:
04/02/2007)
03/30/2007 83 ORDER re: various discovery issues, setting forth a briefing schedule. Signed
by Judge Randolph F. Treece on 3/30/07. (tab) (Entered: 04/02/2007)
04/11/2007 84 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by
Raymond P. Martinez re 82 Order, Set Deadlines, Set Scheduling Order
Deadlines Motion Hearing set for 5/22/2007 10:00 AM in Syracuse before
Senior Judge Neal P. MeCum. (Attachments: # 1 Exhibit(s) 1 to Defendant's
Objections# 2 Exhibit(s) 2 to Defendant's Objections# 3. Exhibit(s) 3 to
Defendant's Objections# 1. Exhibit(s) 4 to Defendant's Objections# .5. Exhibit
(s) 5 to Defendant's Objections#.Q Memorandum of Law in Support of
Defendant's Objections)(Rock, Krista) (Entered: 04/11/2007)
04/12/2007 85 Letter Motion from Linda 1. Clark for Jill A. Dunn requesting Amendment of
Order Docket #83 regarding the order of briefing submitted to Judge
Randolph F. Treece. (Clark, Linda) (Entered: 04/12/2007)
04/13/2007 86 Minute Entry for proceedings held before Judge Randolph F. Treece:
Telephone Conference held on 4/13/2007 with Linda Clark, Esq., for
Defendant Jill Dunn in her individual capacity; and Krista Rock, AAG and
CMIECF LIVE - U.S. District Court - NYND Page 16 of 36
1 ') I7t'){\ 1 1
Michael McCartin, AAG, for the State Defendants. Plaintiffs Counsel could
not be located. Court will await further letter/stipulation from the parties. 25
min. (rlh) (Entered: 04/13/2007)
04/13/2007 87 NOTICE of Appearance by David M. Finkelstein on behalf of Nancy Naples,
Raymond P. Martinez, Jill A. Dunn, Eliot Spitzer (Finkelstein, David)
(Entered: 04/13/2007)
04/13/2007 88 MOTION to Compel Plaintiff's Responses to Ms. Dunn's First Set of
Interrogatories and First Request for the Production ofDocuments by Jill A.
Dunn. (Attachments: # 1 Declaration of Linda Clark# 2. Exhibit(s) A to
Declaration of Linda Clark# 1 Exhibit(s) B to Declaration of Linda Clark# <l
Exhibit(s) C to Declaration of Linda Clark# 5. Exhibit(s) D to Declaration of
Linda Clark) Motions referred to Randolph F. Treece. (Clark, Linda)
(Entered: 04/13/2007)
04/13/2007 Set/Reset Deadlines as to 88 MOTION to Compel Plaintiff's Responses to
Ms. Dunn 's First Set ofInterrogatories and First Request for the Production
ofDocuments. In accordance with Judge Treece's Order, dated 3/30/2007,
Dkt. No. 82 ,Response to Motion due by 4/27/2007. No Reply is
authorized. Motion shall be taken on submit.(rlh) (Entered: 04/13/2007)
04/13/2007 89 STIPULATION re 85 Letter Motion from Linda J. Clark for Jill A. Dunn
requesting Amendment of Order Docket #83 regarding the order of briefing
submitted to Judge Randolph F. Treece by Jill A. Dunn submitted to Judge
Treece. (Attachments: # 1 Letter to Judge Treece)(Clark, Linda) (Entered:
04/13/2007)
04/16/2007 TEXT NOTICE: The Court wishes to conduct a brieftelephone conference.
Therefore, the parties are to immediately contact Chambers and provide their
availability for a telephone conference today, April 16, 2007. Signed by
Judge Randolph F. Treece on 4/16/07. (sn) (Entered: 04/16/2007)
04/16/2007 TEXT NOTICE: A telephone conference has been scheduled for April 16,
2007, at 2:30 p.m. The Court will initiate the conference call. Signed by
Judge Randolph F. Treece on 4/16/07. (sn) (Entered: 04/16/2007)
04/16/2007 90 TEXT ORDER: The parties have stipulated to a briefing schedule which
proposes modification to this Court's March 30, 2007 Order. See Dkt. No. 83,
Order, dated 3/30/07 & Dkt. No. 89, Stip. The Court hereby adopts the
stipulated briefing schedule, which is attached to this Text Order. In addition,
the Court incorporates the terms of the prior Order, dated March 30, 2007,
and the parties shall be guided accordingly. Furthermore, the Court clarifies
that all depositions are adjourned pending resolution of these complex
privilege issues. IT IS SO ORDERED. Signed by Judge Randolph F. Treece
on 4/16/07.(rlh) (Entered: 04/16/2007)
Telephone Conference held on 4/16/2007. Appearances by Brian Raum, Esq.,
& Jeff Shafer, Esq., for Plaintiffs; Krista Rock, AAG, & Mike McCartin,
AAG, for State Defendants; Ira Lipton, Esq., for Def. Pataki; Linda Clark,
Esq., for Jill Dunn. 20 minutes. Court issued Text Order adopting briefing
schedule and incorporating terms of Court's previous Order. (Court Reporter
CMIECF LIVE - U.S. District Court - NYJ\ID Page 17 of36
0/70011
none)(rlh) (Entered: 04/16/2007)
04/17/2007 21
TRANSCRIPT REQUEST for telephonic conference by Children First
Foundation, Inc. for proceedings held on 3/7/2007 before Judge Hon.
Randolph F. Treece.. (Raum, Brian) (Entered: 04/17/2007)
04/18/2007 92 STIPULATION ofDefendant Martinez's Deposition Questions by Children
First Foundation, Inc. submitted to Judge Randolph F. Treece. (Raum, Brian)
(Entered: 04/18/2007)
04/23/2007 93 ORDER: approving the # 92 Stipulation of Defendant Martinez's Deposition
Questions. Signed by Judge Neal P. McCum on 4/23/07. (jmb) (Entered:
04/24/2007)
04/25/2007 94 Letter Motion from AAG Krista Rock for Raymond P. Martinez requesting
advising the Court that Defendant Martinez withdraws his Objections to the
Non-Dispositive Order ofthe Magistrate Judge which were filed on April 11,
2007 submitted to Judge McCum. (Rock, Krista) (Entered: 04/25/2007)
04/25/2007 95 LETTER BRIEF advising the Court that the Office ofthe Attorney General
has certified outside counsel to represent Defendant Martinez in this matter
by Raymond P. Martinez. (Rock, Krista) (Entered: 04/25/2007)
04/26/2007 96 RECORD of Proceedings: Telephone Conference digitally recorded held on
3/7/07 before Judge Randolph F. Treece, Tape Number: (FTR Recorded)
IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: In order to
remove personal identifier data from the transcript, a party must electronically
file a Notice of Intent to Redact with the Clerk's Office within 5 business days
of this date. The policy governing the redaction of personal information is
located on the court website at www.nynd.uscourts.gov. Read this policy
carefully. If no Notice ofIntent to Redact is filed within 5 business days of
this date, the court will assume redaction of personal identifiers is not
necessary and the transcript will be made available on the web 90 days from
today's date. Notice ofIntent to Redact due by 5/3/2007,Transcript due by
7/25/2007. (dm2, ) (Entered: 04/26/2007)
04/26/2007 97 RESPONSE in Opposition re 88 MOTION to Compel Plaintiffs Responses to
Ms. Dunn's First Set ofInterrogatories and First Request for the Production
ofDocuments filed by Children First Foundation, Inc., Elizabeth Rex.
(Attachments: # 1 Declaration of Brian W. Raum)(Raum, Brian) (Entered:
04/26/2007)
04/27/2007 98 Letter Motion from Linda J. Clark, Esq. for Jill A. Dunn requesting ten days
within which to submit a reply to Plaintiffs Opposition to Defendant Dunn's
Motion to Compel Discovery submitted to Judge Treece. (Clark, Linda)
(Entered: 04/27/2007)
04/27/2007 99 RESPONSE in Opposition re 98 Letter Motion from Linda J. Clark, Esq. for
Jill A. Dunn requesting ten days within which to submit a reply to Plaintiffs
Opposition to Defendant Dunn's Motion to Compel Discovery submitted to
Judge Treece filed by Children First Foundation, Inc., Elizabeth Rex. (Raum,
Brian) (Entered: 04/27/2007)
fl4)1R171R7R4)-T, 4';) 0-1
1')l7n011
Telephone Status Conference held on 4/30/2007; Linda Clark, Esq., Jeffrey
Schaffer, Esq.; Order to be filed. (rzh, ) (Entered: 04/3012007)
04/3012007 100 TEXT ORDER: Defendant Dunn has filed a Motion to Compel Discovery
and Plaintiffs have filed their Opposition thereto. Defendant Dunn now
wishes to serve and file a Reply to Plaintiffs' Opposition. Dkt. No. 98 .
Plaintiffs oppose Defendant Dunn's Application. Dkt. No. 99 . A telephone
conference was held on April 30, 2007, and based upon the discussions heard
during this conference this Court grants Defendant Dunn an opportunity to
serve and file a Reply to Plaintiffs' Opposition which shall not exceed ten (10)
pages and shall be due on or before May 4, 2007. Plaintiffs are permitted an
opportunity to serve and file a Sur-Reply which shall not exceed five (5)
pages and is due on or before May 11,2007. SO ORDERED. Signed by
Judge Randolph F. Treece on 4/30/07. (Treece, Randolph) (Entered:
04/30/2007)
05/0212007 101 TEXT ORDER granting 94; Deft Martinez's Letter Request, to withdraw 84
Appeal of Magistrate Judge Decision to District Court filed on April 11, 2007
and is hereby ordered removed from this Court's May 22, 2007 motion
calendar. Ordered by Judge Neal P. McCurn on 51212007. (ptm,) (Entered:
05/0212007)
05/0312007 TEXT NOTICE: On April 25, 2007, this Court received a letter, Dkt. No. 95 ,
from the Attorney General's Office regarding the certification of outside
counsel to represent Defendant Martinez. Because of the implications this
may have on the Scheduling Order issued in this case, the Court will conduct
a telephone conference. Therefore, all parties are to contact Chambers with
dates and times they are available for said conference on May 4 or during the
week of May 7, 2007. Signed by Judge Randolph F. Treece on 5/3/07. (sn)
(Entered: 05/0312007)
05/0312007 CORRECTIVE TEXT NOTICE: The parties are to provide dates and times
they are available for a telephone conference for either the afternoon of May
3 or all day May 4, 2007. Signed by Judge Randolph F. Treece on 5/3/07. (sn)
(Entered: 05/0312007)
05/03/2007 TEXT NOTICE: A telephone conference has been scheduled for May 3,
2007, at 3 p.m. The Court will initiate the conference call. Signed by Judge
Randolph F. Treece on 5/3/07. (sn) (Entered: 05/0312007)
Telephone Conference held on 5/312007; Jeffrey Schaffer, Esq., Krista Rock,
Esq., Michael McCartin, Esq., Ira Lipton, Esq. and Linda Clark, Esq.; Order
to be issued. (FTR/CRD Robin Hinman) (rzh, ) (Entered: 05/0312007)
05/0312007 102 TEXT ORDER: Recently, State Defendants advised this Court that Defendant
Martinez was certified to be represented by private counsel pursuant to New
York Public Officers Law Section 17, in his individual capacity only.
Previously, the parties had stipulated to a briefing schedule regarding motions
pertaining to State Defendants' privilege log. In this regard, State Defendants
opined that Defendant Martinez's new counsel may want to respond and/or
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participate in some fashion to these motions. On May 3,2007, the Court
convened a telephone conference to discuss Martinez's new counsel's role as
it may pertain to these motions. It was ascertained that Martinez had not yet
selected his new counsel, however, everyone agreed that in all likelihood he
would want to respond and/or participate in some manner. Rather than pursue
the stipulated briefing schedule, and based upon the consensus of the parties,
the motions related to State Defendants' privilege log will be stayed pending a
notice of appearance by Martinez's new counsel and their ability to participate
in a discussion on a revised briefing schedule. Therefore these motions will
be stayed and we direct State Defendants to advise this Court of the name of
Martinez's new counsel as soon as they learn of their identity. Defendant
Dunn's Motions to Compel and Amend her Answer will proceed as
scheduled. SO ORDERED. Signed by Judge Randolph F. Treece on 5/3/07.
(Treece, Randolph) (Entered: 05/03/2007)
05/04/2007 103 REPLY to Response to Motion re 88 MOTION to Compel Plaintiffs
Responses to Ms. Dunn's First Set ofInterrogatories and First Request for the
Production ofDocuments filed by Jill A. Dunn. (Clark, Linda) (Entered:
05/04/2007)
05/0712007 104 Letter Motion from Jeffrey A. Shafer for Children First Foundation, Inc.,
Elizabeth Rex requesting Extension of Page Limit for Surreply Memorandum
submitted to Judge Randolph F. Treece. (Shafer, Jeffrey) (Entered:
05/07/2007)
05/07/2007 105 Letter Motion from Linda J. Clark, Esq. for Jill A. Dunn requesting Plaintiffs
sur-reply be limited to five pages pursuant to prior Court Order submitted to
Judge Randolph F. Treece. (Clark, Linda) (Entered: 05/07/2007)
05/07/2007 TEXT ORDER denying 104 Letter Request. Plaintiffs sur-reply shall not
exceed six pages. Signed by Judge Randolph F. Treece on 5/7/07.(rlh)
(Entered: 05/07/2007)
05/08/2007 106 NOTICE of Appearance by Mark J. McCarthy on behalf of Raymond P.
Martinez (McCarthy, Mark) (Entered: 05/08/2007)
05/0812007 107 Letter request, Letter Motion from Mark J. McCarthy, Esq. for Raymond P.
Martinez requesting response to Court's request for telephone conference
submitted to Judge Randolph F. Treece. (McCarthy, Mark) (Entered:
05/08/2007)
05/09/2007 108 TEXT NOTICE AND ORDER SETTING TELEPHONE CONFERENCE:
Attorney Mark J. McCarthy has filed a Notice of Appearance on behalf of
Defendant Raymond P. Martinez. Dkt. No. 106. He has further filed with the
Court Martinez's interest in amending his answer, serving limited
interrogatories on Plaintiff, and his availability for a telephone conference.
Dkt. No. 107 . We also may need to address other pending motions that may
have an impact upon Defendant Martinez. Will all of the parties advise the
Court, as soon as possible, whether they can participate in a telephone
conference, on the record, on either May 15 or 16, after 4:00 p.m., and if so
the telephone numbers by which they can be reached and who will be
participating. Further, will all of the parties provide other dates and time
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when they may be available for a conference call if neither of these dates are
feasible. In considering other dates, the Court wishes to advise the parties that
we are available May 14 after 3:00 p.m. Signed by Judge Randolph F. Treece
on 5/9/07. (Treece, Randolph) (Entered: 05/09/2007)
05/10/2007 109 CERTIFICATE OF SERVICE by Raymond P. Martinez re 106 Notice of
Appearance, 107 Letter request, Letter Motion from Mark J. McCarthy, Esq.
for Raymond P. Martinez requesting response to Court's request for telephone
conference submitted to Judge Randolph F. Treece (McCaI.ihy, Mark)
(Entered: 05/1 0/2007)
05/11/2007 TEXT NOTICE: A telephone conference has been scheduled for May 14,
2007, at 4 p.m. The Court will initiate the conference call. Signed by Judge
Randolph F. Treece on 5/11/07. (sn) (Entered: 05/11/2007)
05/11/2007 110 RESPONSE to Motion re 88 MOTION to Compel Plaintiffs Responses to
Ms. Dunn 's First Set ofInterrogatories and First Request for the Production
ofDocuments Surreply Memorandum filed by Children First Foundation,
Inc.. (Raum, Brian) (Entered: 05/11/2007)
05/11/2007
ill
CERTIFICATE OF SERVICE by Children First Foundation, Inc. re 110
Response to Motion, Surreply Memorandum (Raum, Brian) (Entered:
05/11/2007)
05/14/2007 Minute Entry for proceedings held before Judge Randolph F. Treece: Brian
Raum, Esq., Jeffrey Shaffer, Esq., Krista Rock, Esq., Michael McCartin, Esq.,
Ira Lipton, Esq., Linda Clark, Esq, and Mark McCarthy, Esq. w/Carl Slade,
Esq.; Telephone Conference held on 5/14/2007; Order to be issued.
(FTR/CRD Robin Hinman) (rzh, ) (Entered: 05/14/2007)
05/15/2007 112 ORDER granting 107 Letter Request, holding conference and setting
deadlines for various motions. Signed by Judge Randolph F. Treece on
5/15/07. (tab) (Entered: 05/16/2007)
06/01/2007 113 MOTION to Compel Production ofPrivilege Log Motion Hearing set for
6/1/200706:00 PM in Albany before Magistrate Judge Randolph F.
Treece.,Response to Motion due by 5/15/2007 by Children First Foundation,
Inc.. (Attachments: # 1 Memorandum of Law in Support of Motion# 2
Exhibit(s) Unreported Case# 3. Exhibit(s) Unreported Case# :!: Exhibit(s)
Unreported Case) Motions referred to Randolph F. Treece. (Shafer, Jeffrey)
(Entered: 06/01/2007)
06/28/2007 Minute Entry for proceedings held before Judge Randolph F. Treece: Krista
Rock, AAG; Linda Clark, Esq.; Telephone Conference held on 6/28/2007.
(rzh, ) (Entered: 06/28/2007)
06/29/2007 114 RESPONSE in Opposition re 113 MOTION to Compel Production of
Privilege Log filed by Nancy Naples, Eliot Spitzer. (Attachments: # 1
Memorandum of Law # 2 Exhibit(s) 1 of MOL# 3. Exhibit(s) 2 of MOL# :!:
Exhibit(s) 3# 1 Exhibit(s) 4 ofMOL# ~ Exhibit(s) 5 of MOL# 1 Exhibit(s) 6
of MOL# .& Exhibit(s) 7 of MOL# 2 Exhibit(s) 8 of MOL# lQ Exhibit(s) 9 of
MOL# II Affidavit of Schoen (Cover page only)# 12 Exhibit(s) A of Schoen
Aff. (Priv. Log)# li Exhibit(s) of Schoen Aff. (6/26/07 Letter)# l:!: Exhibit(s)
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C of Schoen Aff. (Priv. Material- Cover page only)# U Exhibit(s) D of
Schoen Aff. (Plaintiffs Letters))(McCartin, Michael) (Entered: 06/29/2007)
07/05/2007 115 CERTIFICATE OF SERVICE by Nancy Naples, Eliot Spitzer re 114
Response in Opposition to Motion" (McCartin, Michael) (Entered:
07/05/2007)
07/19/2007 116 RESPONSE in Opposition re 113 MOTION to Compel Production of
Privilege Log (filed under seal) filed by Jill A. Dunn. (Attachments: # 1
Exhibit(s) Exhibit A to Declaration of Linda J. Clark (filed under seal)# 2
Exhibit(s) Exhibit B to Declaration of Linda J. Clark (filed under seal))(Clark,
Linda) (Entered: 07/19/2007)
07/19/2007 117 MEMORANDUM OF LAW re ill Response in Opposition to Motion, 114
Response in Opposition to Motion" 113 Motion to Compel, (filed under seal)
filed by Jill A. Dunn. (Clark, Linda) (Entered: 07/19/2007)
07/20/2007 118 AFFIDAVIT in Opposition re 113 MOTION to Compel Production of
Privilege Log filed by George E. Pataki. (Lipton, Ira) (Entered: 07/20/2007)
07/20/2007 119 AFFIDAVIT of Service for Declaration of Linda J. Clark (with exhibits) and
Defendant Jill A. Dunn's Memorandum of Law in Response to Plaintiffs
'Motion to Compel served on Hon. RandolfF. Treece, Krista A. Rock, Esq. on
7/19/07, filed by Jill A. Dunn. (Clark, Linda) (Entered: 07/20/2007)
07/20/2007 120 AFFIDAVIT of Service for redacted version of Defendant Jill A. Dunn's
Memorandum of Law in Response to Plaintiffs Motion to Compel served on
James Michael Johnson, Esq., Jeffrey A. Shafer, Esq., Brian W. Raum, Esq.,
IraJ. Lipton, Esq. on 7/19/07, filed by Jill A. Dunn. (Clark, Linda) (Entered:
07/20/2007)
07/20/2007 121 REPLY to Response to Motion re 113 MOTION to Compel Production of
Privilege Log filed by Children First Foundation, Inc. (Shafer, Jeffrey)
Modified on 7/20/2007 to remove filer Elizabeth Rex. Gmb) (Entered:
07/20/2007)
07/20/2007 CLERK'S CORRECTION OF DOCKET ENTRY, Re: the # 121 Reply to
Response to Motion filed by Children First Foundation, Inc., Counsel
contacted the Court and advised that the pleading is submitted on behalf of
The Children's First Foundation only, not Elizabeth Rex. Therefore Elizabeth
Rex has been removed as a filer for this docket entry. Gmb) (Entered:
07/20/2007)
07/20/2007 122 AFFIDAVIT Declaration ofMark J McCarthy by Raymond P. Martinez.
(McCarthy, Mark) (Entered: 07/20/2007)
07/20/2007 123 CERTIFICATE OF SERVICE by Raymond P. Martinez ofthe Declaration of
Mark J McCarthy (McCarthy, Mark) (Entered: 07/20/2007)
07/20/2007 124 AFFIDAVIT re 118 Affidavit in Opposition to Motion by George E. Pataki.
07/26/2007 125 TRANSCRIPT of Proceedings (Unredacted): Telephone Conference digitally
recorded held on 3/7/07 before Judge Randolph F. Treece, (dm2, ) (Entered:
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07/26/2007)
07/27/2007 126 TRANSCRIPT REQUEST by Jill A. Dunn for proceedings held on 03/30/07
before Judge Hon. Randolph Treece.. (Clark, Linda) (Entered: 07/27/2007)
07/27/2007 127 Letter Motion from AAG Krista Rock for Nancy Naples, Eliot Spitzer
requesting an extension of the State Defendants' deadline for replying to
Defendant Dunn's response to Plaintiffs Motion to Compel submitted to
Judge Treece. (Rock, Krista) (Entered: 07/27/2007)
07/30/2007 TEXT ORDER granting 127 State Defendants' Letter Request extending their
time to file a Reply to Dunn's Response to Plaintiffs Motion to Compel to
August 31, 2007. IT IS SO ORDERED. Signed by Judge Randolph F. Treece
on 7/30/07. (Treece, Randolph) (Entered: 07/30/2007)
08/03/2007 128 MEMORANDUM-DECISION AND ORDER granting in part and denying in
part 67 Motion to Amend/Correct. Signed by Judge Randolph F. Treece on
8/3/07. (tab) (Entered: 08/03/2007)
08/14/2007 129 RECORD of Proceedings: Conference held on March 30, 2007 before Judge
Randolph F. Treece, Court Reporter: Theresa J. Casal. IMPORTANT
NOTICE - REDACTION OF TRANSCRIPTS: In order to remove personal
identifier data from the transcript, a party must electronically file a Notice of
Intent to Redact with the Clerk's Office within 5 business days of this date.
The policy governing the redaction of personal information is located on the
court website at www.nynd.uscourts.gov. Read this policy carefully. Ifno
Notice ofIntent to Redact is filed within 5 business days of this date, the
court will assume redaction of personal identifiers is not necessary and the
transcript will be made available on the web 90 days from today's date.
Notice ofIntent to Redact due by 8/21/2007,Transcript due by 11/13/2007.
(tjc, ) (Entered: 08/14/2007)
Children First Foundation, Inc. re 128 Order on Motion to Amend/Correct
Motion Hearing set for 9/18/2007 10:00 AM in Syracuse before Senior Judge
Neal P. McCum. (Attachments: # 1 Memorandum of Law in Support of
Plaintiffs Objections to Magistrate Judge's Non-Dispositive Order)(Shafer,
Jeffrey) (Entered: 08/17/2007)
08/17/2007 131 MOTION to Vacate 128 Order on Motion to Amend/Correct Motion Hearing
set for 9/25/2007 09:30 AM in Albany before Senior Judge Neal P.
McCurn.,Response to Motion due by 9/1 0/2007,Reply to Response to Motion
due by 9/14/2007. by Jill A. Dunn. (Attachments: # 1 Memorandum of Law
Defendant Jill A. Dunn's Objections to the Magistrate Judge's Memorandum-
Decision and Order on Motion to Amend# 2. Exhibit(s) Compendium of cases
solely in electronic format - part 1 of 4# 1 Exhibit(s) Compendium of cases
part 2 of 4# 1 Exhibit(s) Compendium of cases - part 3 of 4# 2 Exhibit(s)
Compendium of cases - part 4 of 4) (Clark, Linda) (Entered: 08/17/2007)
08/17/2007 132 CERTIFICATE OF SERVICE by Jill A. Dunn re 131 MOTION to Vacate
128 Order on Motion to Amend/Correct MOTION to Vacate 128 Order on
Motion to Amend/Correct MOTION to Vacate 128 Order on Motion to
Amend/Correct (Clark, Linda) (Entered: 08/17/2007)
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08/21/2007 133 NOTICE OF INTENT TO REDACT by Jill A. Dunn re 129 Record of
Proceedings", (Clark, Linda) (Entered: 08/21/2007)
08/21/2007 134 CERTIFICATE OF SERVICE by Jill A. Dunn re 133 Notice ofIntent to
Redact (Clark, Linda) (Entered: 08/21/2007)
08/22/2007 135 NOTICE of Appearance by Senta B. Siuda on behalf of David J. Swartz,
Andrew Cuomo, Eliot Spitzer (Attachments: # 1 Certificate of Service)
(Siuda, Senta) (Entered: 08/22/2007)
08/23/2007 136 Letter Motion from Senta B. Siuda for David J. Swartz, Andrew Cuomo,
Eliot Spitzer requesting extension of time to respond to defendant Dunn's
cross-motion to compel (Dkts. 116 and 117) submitted to Judge Treece.
(Siuda, Senta) (Entered: 08/23/2007)
08/24/2007 TEXT ORDER taking under advisement 136 State Defendants' Letter
Request for additional time to file a reply to Defendant Dunn's cross motion
to compel ( 116 & 117 ). State Defendants seek an extension to reply until
September 14,2007. All parties with the exception of Plaintiffs have
consented to the extension. State Defendants have sought Plaintiffs' consent
but have not received a return call from them. The Court will grant the
extension unless it receives objections from Plaintiffs. Said objections must
be filed by the end of August 24,2007. SO ORDERED. Signed by Judge
08/24/2007 NOTICE to Children First Foundation, Inc. The Court received your
telephone confirmation that you have no objections to State Defendants
Request for an extension to respond to Defendant's cross motion to compel.
Thank you for your prompt call. (Treece, Randolph) (Entered: 08/24/2007)
08/24/2007 TEXT ORDER regarding 136 Letter Motion from Senta B. Siuda for David J.
Swartz, Andrew Cuomo, Eliot Spitzer requesting extension of time to respond
to defendant Dunn's cross-motion to compel (Dkts. 116 and 117) submitted to
Judge Treece filed by Eliot Spitzer, Andrew Cuomo, David J. Swartz. All
other parties have consented to State Defendants request to extend the time to
respond to Defendant Dunn's cross motion until September 14,2007. Said
extension is granted. IT IS SO ORDERED. Signed by Judge Randolph F.
Treece on 8/24/07. (Treece, Randolph) (Entered: 08/24/2007)
08/28/2007 137 ORDER SETTING HEARING AS TO APPEAL OF MAGISTRATES
DECISION AND MOTON TO VACATE 131 MOTION to Vacate 128 Order
on Motion to Amend/Correct MOTION to Vacate 130 APPEAL OF
MAGISTRATE JUDGE DECISION to District Court by Children First
Foundation, Inc. re 128 Order on Motion to Amend/Correct: Response to
Motion due by 9/1 0/2007 Reply to Response to Motion due by 9/14/2007.
Motion Hearing set for 9/25/2007 11 :00 AM in Syracuse before Senior Judge
Neal P. MeCum. Signed by Judge Neal P. MeCum on 8/28/2007. (ptm,)
(Entered: 08/28/2007)
09110/2007 138 RESPONSE in Opposition re 131 MOTION to Vacate 128 Order on Motion
to Amend/Correct MOTION to Vacate 128 Order on Motion to
Amend/Correct MOTION to Vacate 128 Order on Motion to Amend/Correct
filed by Children First Foundation, Inc., Elizabeth Rex, Elizabeth Rex(Dr.).
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(Raum, Brian) (Entered: 09/1 0/2007)
09/10/2007 139 AFFIDAVIT re 131 MOTION to Vacate 128 Order on Motion to
Amend/Correct MOTION to Vacate 128 Order on Motion to Amend/Correct
MOTION to Vacate 128 Order on Motion to Amend/Correct by George E.
Pataki. (Attachments: # 1 Affidavit Certificate of Service)(Lipton, Ira)
(Eptered: 09/1 0/2007)
09/10/2007 140 MEMORANDUM OF LAW re 130 Appeal of Magistrate Judge Decision to
District Court, filed by Jill A. Dunn. (Clark, Linda) (Entered: 09/10/2007)
09/12/2007 141 Letter Motion from Senta B. Siuda for David J. Swartz, Andrew Cuomo,
Eliot Spitzer requesting further extension of time to respond to defendant
Dunn's cross-motion submitted to Judge Treece. (Siuda, Senta) (Entered:
09/12/2007)
09/1212007 TEXT ORDER granting 141 State Defendants' Letter Request to extend the
time for them to file their reply to a cross motion to compel. Said reply is due
on or before September 20,2007. SO ORDERED. Signed by Judge Randolph
F. Treece on 9/12/07. (Treece, Randolph) (Entered: 09/12/2007)
09/1312007 142 Letter Motion from Brian W. Raum for Children First Foundation, Inc.
requesting Extension of Reply Deadline set for 9/14/07 submitted to Judge
MeCum. (Raum, Brian) (Entered: 09/1312007)
09/1312007 143 ORDER denying 142 Letter Request, 142 Letter Motion from Brian W. Raum
for Children First Foundation, Inc. requesting Extension of Reply Deadline
set for 9/14/07 to 9/19/07 submitted to Judge MeCum: Reply to Response to
Motions SHALL BE ELECTRONICALLY FILED NO LATER THAN
9:00AM on MONDAY 9/17/2007.Signed by Judge Neal P. MeCum on
09/1312007. (ptm, ) (Entered: 09/1312007)
09/1312007 144 NOTICE of Appearance by Laura M. Midwood on behalf of George E. Pataki
(Midwood, Laura) (Entered: 09/1312007)
09/1712007 145 Appellant's REPLY BRIEF by Jill A. Dunn. (Attachments: # 1 Exhibit(s)
Exhibit "A" to Reply Brief of Jill A. Dunn# 2 Exhibit(s) Exhibit "B" to Reply
Brief of Jill A. Dunn)(Clark, Linda) (Entered: 09/17/2007)
09/17/2007 146 REPLY to Response to Motion re 130 APPEAL OF MAGISTRATE JUDGE
DECISION to District Court by Children First Foundation, Inc. re 128 Order
on Motion to Amend/Correct APPEAL OF MAGISTRATE JUDGE
DECISION to District Court by Children First Foundation, Inc. re 128 Order
on Motion to Amend/Correct filed by Children First Foundation, Inc..
(Shafer, Jeffrey) (Entered: 09/17/2007)
09/2012007 147 REPLY to Response to Motion re 113 MOTION to Compel Production of
Privilege Log [Reply to defendant Dunn's Cross-Motion (Docket Nos. 116
and 117)) filed by David J. Swartz, Eliot Spitzer. (Attachments: # 1
Certificate of Service)(Siuda, Senta) (Entered: 09/20/2007)
0912012007 148 Letter Motion from Senta B. Siuda for David J. Swartz, Eliot Spitzer
requesting a change in the caption and docket sheet submitted to Judge
Treece. (Siuda, Senta) (Entered: 0912012007)
09/21/2007 TEXT ORDER taking under advisement 148 State Defendants' Letter-Motion
to change the caption ofthis case. By this Letter-Motion, State Defendants
advise the Court that the caption of the August 3,2007 Order may be error in
that we listed Attorney General Andrew Cuomo as a party in his official
capacity, and Eliot Spitzer in his individual capacity as well as in his official
capacity as Governor. State Defendants observe that former Attorney
General, Eliot Spitzer, was dropped from this case at the time Plaintiffs filed
their First Amended Complaint. Further, State Defendants note that Neal
Schoen should be noted in the caption as a party in his official capacity
inasmuch as he has replaced Defendant Jill Dunn as Deputy Commissioner
and Counsel to DMV. The Court has reviewed the First Amended Complaint
and notes that then Attorney General Eliot Spitzer was not listed as a party.
The Court is prepared to amend the caption and the case docket accordingly
but would ask Plaintiffs to verify whether these observations are accurate, as
soon as possible but no later than September 25,2007. We will then issue an
order correcting the caption and the case docket. Signed by Judge Randolph
F. Treece on 9/21/07. (Treece, Randolph) (Entered: 09/21/2007)
09/24/2007 149 ORDER AMENDING CAPTION on DOCKET and updating current attorney
of record information. Signed by Judge Randolph F. Treece on 9/24/07. (tab)
(Entered: 09/24/2007)
09/25/2007 150 Minute Entry for proceedings held before Judge Neal P. McCurn : Motion
Hearing held on 9/25/2007 re 131 MOTION to Vacate 128 Order on Motion
to Amend/Correct filed by Jill A. Dunn, and 130 APPEAL OF
MAGISTRATE JUDGE DECISION to District Court by Children First
Foundation, Inc. re 128 Order on Motion to Amend/Correct. Appeal/Motion
Taken Under Advisement: Senior Judge McCurn reviews procedural history
and issues within the instant Appeal of and Motion to Vacate Magistrate
Judge RandolfF. Treeses Memorandum Decision and Order dated August 3,
2007, and after extensive questioning of counsel as to all relevant issues and
upon hearing further statements of counsel, Senior Judge McCurn
RESERVES DECISION and takes both matters under advisement (Court
Reporter Diane Martens) (ptm,) (Entered: 09/27/2007)
11/12/2007 151 Letter Motion from Linda J. Clarke for Jill A. Dunn requesting Permission to
File Redacted Transcript submitted to Judge Randolph F. Treece.
(Attachments: # 1 Transcript Part 1 of Redacted Transcript ofProceedings# 2
Transcript Section 2 of Redcted Transcript# .3. Transcript Section 3 of
Redacted Transcript)(Clark, Linda) (Entered: 11/12/2007)
11/14/2007 152 Letter Motion from Linda 1. Clark, Esq. for Jill A. Dunn requesting
Permission to File Redacted Transcript submitted to Judge Treece.
(Attachments: # 1 Transcript Section 1 of Redacted Transcript# 2 Transcript
Section 2 of Redacted Transcript# .3. Transcript Section 3 of Redacted
Transcript)(Clark, Linda) (Entered: 11/14/2007)
11/14/2007 TEXT ORDER temporarily denying 151 Letter Request & temporarily
denying 152 Letter Request: Defendant Dunn may re-file a Motion to Seal,
which shall be accompanied by a Memorandum of Law setting forth the legal
bases for the requested relief. To the extent sensitive or privileged
information will be discussed in such Memorandum of Law, it may be
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temporarily filed under seal. Notwithstanding such ruling, the Court directs
that such Motion be served on all parties in its entirety. Signed by Judge
Randolph F. Treece on 11/14/07.(rIh) (Entered: 11/14/2007)
11/14/2007 153 Redacted Version of 117 Memorandum of Law re 116 Response in
Opposition to Motion, 114 Response in Opposition to Motion, 113 Motion to
Compel, filed by Jill Dunn. (Attachments: # 1 Redacted Memorandum of
Law)(Clark, Linda) Modified on 11/16/2007 (rIh). (Entered: 11/14/2007)
11/15/2007 154 TRANSCRIPT of Proceedings (Umedacted): Conference held on March 30,
2007 before Judge Randolph F. Treece, Court Reporter: Theresa J. Casal.
(tjc, ) (Entered: 11/15/2007)
11/16/2007 CLERK'S CORRECTION OF DOCKET ENTRY: Corrected Do.cket Text of
Dkt. No. 153 to reflect that it is Defendant Dunn's redacted version of the
memorandum of law regarding Plaintiffs Motion to Compel. Also terminated
Motion as it had been originally filed as a letter motion. (rIh) (Entered:
11/16/2007)
11/19/2007 TEXT ORDER: A Telephone Conference is set for 11/20/2007 at 03:00 PM
before Magistrate Judge Randolph F. Treece. The Conference will be held on
the record. The Court will initiate the Conference call. Signed by Judge
Randolph F. Treece on 11/19/07. (rIh) (Entered: 11/19/2007)
11/20/2007 155 NOTICE by Jill A. Dunn re Order" Set Deadlines/Hearings, 88 MOTION to
Compel Plaintiffs Responses to Ms. Dunn's First Set ofInterrogatories and
First Request for the Production ofDocuments Unredacted Memo ofLaw
(Attachments: # 1 Memorandum of Law)(Clark, Linda) (Entered:
11/20/2007)
11/20/2007 156 Minute Entry for proceedings held before Judge Randolph F. Treece: Interim
Pretrial Conference held on 11/20/2007. Appearances by Jeff Shafer, Esq.,
representing Plaintiff The Children First Foundation, Inc.; Mark McCarthy, '
Esq., representing Defendant Raymond Martinez; Linda Clark, Esq., & David
Kost, Esq., representing Defendant Jill Dunn; Laura Midwood, Esq.,
representing Defendant George Pataki; Senta Suida, AAG, representing State
Defendants. Court discusses filing of March 30, 2007 Hearing Transcript and
Defendant Jill Dunn's redacted Memo of Law regarding Plaintiffs Motion to
Compel. Umedacted version of Dunn Memo of Law should be filed. (Court
Reporter none/FTR/Law Clerk Robyn Hoffman). 15 Min.(rIh) (Entered:
11/21/2007)
12/10/2007 157 MEMORANDUM-DECISION AND ORDER granting in part and denying in
part 113 Motion to Compel, granting Defendant Dunn's motion to compel,
staying compliance with this order for 10 days. Signed by Judge Randolph F.
Treece on 12/10/07. (tab) (Entered: 12/10/2007)
12/18/2007 158 Letter Motion from Senta B. Siuda for David J. Swartz, Neal Schoen, Eliot
Spitzer requesting extension of time to file objections to 12-10-07 MDO
submitted to Judge MeCum. (Siuda, Senta) (Entered: 12/18/2007)
12/19/2007 159 ORDER granting 158 Letter Request. Signed by Judge Neal P. MeCum on
12/19/2007. Date for any party to file objections and/or appeal Memorandum
452 0-1
Decision and Order of Magistrate Treece at Dkt 157 extended to January 14,
2008. Stay of compliance continued until Court rules as to any objections
filed. (ptm, ) (Entered: 12/19/2007)
12/27/2007 160 MEMORANDUM-DECISION & ORDER: Upon due consideration ofthe #
130 Appeal of Decision to District Court and the # 131 Motion to Vacate the
# 128 Order on the # 67 Motion to Amend/Correct Answer. It is hereby
ordered that Judge Randolph Treece's # 128 Memorandum.,Decision & Order
is reversed; it is ordered that defendant Jill A. Dunn's # 67 Motion be granted
in part to allow her to amend her answer with a government speech doctrine
affirmative defense, and denied in part, to prevent her from amending her
answer with an Establishment Clause neutrality defense. Further ordered that
defendant, Jill A. Dunn file an amended answer no later than 1/26/2008.
Signed by Judge Neal P. McCum on 12/27/07. Umb) (Entered: 12/28/2007)
01/14/2008 161 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by David
1. Swartz, Neal Schoen, Eliot Spitzer re 157 Order on Motion to Compel
Motion Hearing set for 2/12/2008 10:00 AM in Syracuse before Senior Judge
Neal P. McCum. (Attachments: # 1 Memorandum of Law # 2 Appendix of
cases annexed to MOL, Part 1# l Appendix of cases annexed to MOL, Part
2# 1: Appendix of cases annexed to MOL, Part 3# ~ Affidavit of Neal Schoen
(Supplemental)# QCertificate of Service)(Siuda, Senta) (Entered:
01/14/2008)
George E. Pataki re 157 Order on Motion to Compel Motion Hearing set for
2/12/2008 10:00 AM in Syracuse before Senior Judge Neal P. McCum.
(Attachments: # 1 Memorandum of Law IN SUPPORT OF DEFENDANT
PATAKIS OBJECTION TO AND APPEAL OF THE MAGISTRATE
JUDGES MEMORANDUM-DECISION AND ORDER DATED
DECEMBER 10, 2007)(Lipton, Ira) (Entered: 01/14/2008)
01/14/2008 163 CERTIFICATE OF SERVICE by George E. Pataki re 162 APPEAL OF
MAGISTRATE JUDGE DECISION to District Court by George E. Pataki re
157 Order on Motion to Compel APPEAL OF MAGISTRATE JUDGE
DECISION to District Court by George E. Pataki re 157 Order on Motion to
Compel (Lipton, Ira) (Entered: 01/14/2008)
01/15/2008 164 MEMORANDUM-DECISION AND ORDER denying 88 Motion to Compel,
except Plaintiff shall provide a response to Interrogatory No.1 and the
documents for Demand to Produce No.1, on or before 2/11/08. Signed by
Judge Randolph F. Treece on 1/8/08. (ban) (Entered: 01/15/2008)
01/15/2008 165 ORDER TAKING APPEALS OF MAGISTRATE JUDGE DECISION ON
SUBMIT 161 APPEAL OF MAGISTRATE JUDGE DECISION to District
Court by David J. Swartz, Neal Schoen, Eliot Spitzer re 157 Order on Motion
to Compel APPEAL OF MAGISTRATE JUDGE DECISION to District
Court by David J. Swartz, Neal Schoen, Eliot Spitzer re 157 Order on Motion
to Compel, 162 APPEAL OF MAGISTRATE JUDGE DECISION to District
Court by George E. Pataki re 157 Order on Motion to Compel APPEAL OF
157 Order on Motion to Compel: No oral argument shall be heard and no
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reply papers will be accepted without prior pennission of the Court. Court
further orders that the opposition papers as to both appeals shall be
electronically filed with the Court no later than 4:00pm on Monday, January
28,2008. Ordered by Judge Neal P. McCum on 1115/2008. (ptm,) (Entered:
01/1512008)
01/15/2008 166 NOTICE by George E. Pataki re 162 APPEAL OF MAGISTRATE JUDGE
Compel APPEAL OF MAGISTRATE JUDGE DECISION to District Court
by George E. Pataki re 157 Order on Motion to Compel Appendix OfCases
Annexed To Memorandum OfLaw In Support OfDefendant Patakis
Objection To And Appeal OfThe Magistrate Judges Memorandum-Decision
And Order Dated December 10, 2007 (Lipton, Ira) (Entered: 01115/2008)
01122/2008 167 Letter Motion from Brian W. Raum for Children First Foundation, Inc.
requesting Extension of Time to File Opposition to Defendants' Objections
submitted to Judge Neal P. McCum. (Raum, Brian) (Entered: 01/22/2008)
01124/2008 170 ORDER: granting the # 167 Letter Request, resetting the response deadline to
the # 161 & # 162 APPEALS OF MAGISTRATE JUDGE DECISION to
2118/2008. Signed by Judge Neal P. McCum on 1124/2008. Gmb) (Entered:
01/25/2008)
0112512008 168 Letter Motion from Linda J. Clark for Jill A. Dunn requesting Extension of
Time to File Opposition Papers to State Defendant's Appeal submitted to
Judge Neal P. McCum. (Clark, Linda) (Entered: 01125/2008)
01/2512008 169 MOTION for Certificate of Appealability Motion Hearing set for 2/26/2008
10:00 AM in Syracuse before Senior Judge Neal P. McCum. by Jill A. Dunn.
(Attachments: # 1 Memorandum of Law) (Clark, Linda) (Entered:
01/25/2008)
0112512008 171 ORDER SETTING FILING DATE FOR RESPONSES FOR ALL PARTIES
as to: 161 APPEAL OF MAGISTRATE JUDGE DECISION to District Court
by David J. Swartz, Neal Schoen, Eliot Spitzer re 157 Order on Motion to
by David J. Swartz, Neal Schoen, Eliot Spitzer re l57 Order on Motion to
Compel, 162 APPEAL OF MAGISTRATE JUDGE DECISION to District
Court by George E. Pataki re 157 Order on Motion to Compel APPEAL OF
157 Order on Motion to Compel: Response to Motion due by 2118/2008.
Signed by Judge Neal P. McCum on 112512008. (ptm, ) (Entered: 01125/2008)
02/05/2008 172 ORDER TAKING MOTION ON SUBMITTED PAPERS 169 MOTION for
Certificate of Appealability: Court further orders that any opposition papers
shall be electronically filed with the Court no later than 4:00pm on Friday,
February 15,2008. No reply papers will be accepted without prior pennission
of the Court. Ordered by Senior Judge Neal P. McCum on 2/5/2008. (ptm, )
(Entered: 02/05/2008)
02115/2008 173 RESPONSE in Opposition re 169 MOTION for Certificate of Appealability
filed by Children First Foundation, Inc.. (Shafer, Jeffrey) (Entered:
02/1512008)
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02/1512008 174 RESPONSE in Opposition re 162 APPEAL OF MAGISTRATE JUDGE
by George E. Pataki re 157 Order on Motion to Compel, 161 APPEAL OF
MAGISTRATE JUDGE DECISION to District Court by David 1. Swartz,
Neal Schoen, Eliot Spitzer re 157 Order on Motion to Compel APPEAL OF
MAGISTRATE JUDGE DECISION to District Court by David 1. Swartz,
Neal Schoen, Eliot Spitzer re 157 Order on Motion to Compel filed by Jill A.
Dunn. (Clark, Linda) (Entered: 02/15/2008)
02/15/2008 175 CERTIFICATE OF SERVICE by Jill A. Dunn re 174 Response in
Opposition to Motion" (Clark, Linda) (Entered: 02/15/2008)
02/1812008 176 MEMORANDUM OF LAWre 162 Appeal of Magistrate Judge Decision to
District Court, 161 Appeal of Magistrate Judge Decision to District Court,
Opposition to Objections filed by Children First Foundation, Inc.. (Raum,
Brian) (Entered: 02/1812008)
0612012008 177 ORDER affirming in part and reversing in part the # 161 Appeal of
Magistrate Judge Decision by David J. Swartz, Neal Schoen, Eliot Spitzer
and the # 162 Appeal of Magistrate Judge Decision by George E. Pataki; and
it is further Ordered that Magistrate Treece's determination that defendants
Swartz, Schoen and Paterson placed qualified immunity at issue and waived
privilege is Reversed; and it is further Ordered that all remaining
determinations to which objections have been filed are hereby Affirmed.
Signed by Senior Judge Neal P. McCum on 612012008(kee) (Entered:
06/20/2008)
06/20/2008 178 ORDER denying the # 169 Motion for Certificate of Appealability. Signed by
Senior Judge Neal P. McCum on 6/2012008. (kee) (Entered: 0612012008)
07/0712008 179 AMENDED ANSWER to Amended Complaint with Certificate o/Service by
Jill A. Dunn. (Clark, Linda) (Entered: 07/0712008)
03/1112009 180 NOTICE of Appearance by Juan A Skirrow on behalf of George E. Pataki
(Skirrow, Juan) (Entered: 03/1112009)
03/26/2009 181 STATUS REPORT by Jill A. Dunn. (Grygiel, Michael) (Entered:
03/2612009)
03/26/2009 182 NOTICE of Appearance by David M. Cost on behalf of Jill A. Dunn (Cost,
David) (Entered: 03126/2009)
04/0112009 Minute Entry for proceedings held before Magistrate Judge Randolph F.
Treece: Jeffrey Shafer, Esq., Senta Siuda, AAG, Mark McCarthy, Esq. and
Michael Grygiel, Esq. participate in Telephone Conference held on 4/112009.
(rzh, ) (Entered: 04/01/2009)
04/0212009 ORDER AND NOTICE: The Court has received a Status Report filed by
Defendant Dunn. Dkt. No. 181 . Defendant Dunn apprised the Court that
certain depositions are about to occur, and the Court knows that these
depositions have ensued because of a telephone conference held on April 1,
2009. During that telephone conference, the parties alerted the Court that
121712011
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Judge McCum had rendered two Memorandum-Decisions and Orders in
June, 2008. Dkt. Nos. 177 & 178 . This Court was unaware of those events,
primarily due to a malfunction with the ECF. After reviewing the case docket,
it has come to the Court's attention that we need to revisit the Scheduling
Order. The last Order which dealt with scheduling was issued on February 23,
2007, Dkt. No. 62 , and all ofthose deadlines have expired. Thus it is
incumbent upon the Court and the parties to discuss the Uniform Pretrial
Scheduling Order. Therefore, the parties are directed to electronically file all
of the dates and times that they may be available for a telephone conference
to address the Scheduling Order. This Court is available for a telephone
conference on April 13, 14, 17,20-24, and 27-30. The parties immediate
attention is requested. IT IS SO ORDERED. Signed by Magistrate Judge
04/03/2009 183 LETTER BRIEF regarding availabilityfor conference call by David J.
Swartz, Neal Schoen, David A. Paterson. (Siuda, Senta) (Entered:
04/03/2009)
04/03/2009 184 STATUS REPORT by Jill A. Dunn. (Grygiel, Michael) (Entered:
04/03/2009)
04/03/2009 185 NOTICE by Children First Foundation, Inc. regarding availability for
telephone conference (Shafer, Jeffrey) (Entered: 04/03/2009)
04/03/2009 186 STATUS REPORT by Raymond P. Martinez. (McCarthy, Mark) (Entered:
04/03/2009)
04/03/2009 187 NOTICE by George E. Pataki regarding availabilityfor telephone conference
04/06/2009 NOTICE of TELEPHONE CONFERENCE scheduled with Judge Treece on
4/24/2009 at 3:00 p.m.; Conference call will be initiated by Chambers; if
counsel would like to be contacted at a phone number, other than the number
listed on the docket, please call Chambers at 518-257-1843 or email Robin
Hinman at rhinman@nynd.uscourts.gov with that information. (rzh,)
(Entered: 04/06/2009)
04/24/2009 188 STIPULATION of Dismissal ofDefendants George E. Pataki, Jill A. Dunn,
Neal Schoen, and David A. Paterson by Children First Foundation, Inc.
submitted to Judge Randolph F. Treece. (Raum, Brian) (Entered: 04/24/2009)
04/24/2009 189 SCHEDULING ORDER: Based upon the telephone conference held on April
24,2009, the Uniform Pretrial Scheduling Order is amended as follows: (1)
Discovery Deadline is 9/11/2009; (2) Final Day to file Dispositive Motions is
10/30/2009; and (3) All other provisions of the Scheduling Order shall remain
in effect. Should the parties complete discovery prior to 9/11/09, they need
not wait until 10/30/09 to pursue dispositive motions. SO ORDERED. Signed
by Magistrate Judge Randolph F. Treece on 4/24/09. (Treece, Randolph)
(Entered: 04/24/2009)
04/24/2009 Minute Entry for proceedings held before Magistrate Judge Randolph F.
Treece: Brian Raum, Esq., Mark McCarthy, Esq., Michael Grygiel, Esq.,
Senta Siuda, Esq., and Juan Skirrow, Esq. participate in Telephone
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Conference held on 4/24/2009; Text Order issued. (rzh, ) (Entered:
04/27/2009)
05/15/2009 190 NOTICE of Appearance by James P. Trainor on behalf of Children First
Foundation, Inc. (Trainor, James) (Entered: 05/15/2009)
08/07/2009
121
NOTICE of Change of Address by Jeffrey A. Shafer Effective Date
08/07/2009 Old Address: Telephone (202) 637-4610 New Address:
Telephone: (202) 393-8690 (Shafer, Jeffrey) (Entered: 08/07/2009)
09/16/2009 192 Letter Motion from Jeffrey A. Shafer for Children First Foundation, Inc.
requesting extension of deadline submitted to Judge Randolph F. Treece.
09/17/2009 TEXT ORDER granting 192 Letter Request: Dispositive Motions to be filed
by 12/15/2009. Signed by Magistrate Judge Randolph F. Treece on 9/17/09.
(rIh) (Entered: 09/17/2009)
12/08/2009 193 Letter Motion from Senta B. Siuda for David J. Swartz requesting extension
of dispositive motion filing deadline submitted to Judge Treece. (Siuda,
Senta) (Entered: 12/08/2009)
12/09/2009 194 ORDER granting 193 , Defendants' Letter Request; seeking an extension of
time to serve and file their dispositive motions. This Request is granted with
the consent of the Plaintiffs and the Honorable Neal P. McCum, United States
District Judge. Because of the possible complexity of the motion, the Court
has modified the responding dates accordingly. Therefore, (1) Defendants
may serve and file their dispositive motions on or before 1/22/2010, (2)
Plaintiffs' Response to Motion is due by 2/12/2010, (3) Defendants' Reply to
Plaintiffs' Response to Motion is due by 2/26/2010, and (4) Motion Hearing is
set for 3/9/2010 10:00 AM in Syracuse before Senior Judge Neal P. McCum.
Oral argument is not permitted unless Judge McCum sua sponte directs or
grants a request for oral argument. For future reference, when discovery has
been completed and litigants are moving to the dispositive motion stage, any
request to modify the filing dates or briefing schedule should be made
directly to the district judge. SO ORDERED. Signed by Magistrate Judge
12/09/2009 AMENDED TEXT ORDER granting 193, Defendants' Letter Request,
seeking an extension of time to serve and file their dispositive motions. This
Request is granted with the consent ofthe Plaintiffs and the Honorable Neal
P. McCum, United States District Judge. Because of the possible complexity
of the motion(s), the Court has modified the responding dates accordingly.
Therefore, (1) the Parties may serve and file their dispositive motions on or
before 1/22/2010, (2) a Response to any such Motion is due by 2/12/2010, (3)
a Reply to any such Response is due by 2/26/2010, and (4) Motion Hearing is
set for 3/9/201010:00 AM in Syracuse before Senior Judge Neal P. McCum.
Oral argument is not permitted unless Judge McCum sua sponte directs or
grants a request for oral argument. For future reference, when discovery has
been completed and litigants are moving to the dispositive motion stage, any
request to modify the filing dates or briefing schedule should be made
directly to the district judge. SO ORDERED. Signed by Magistrate Judge
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Randolph F. Treece on 12/9/09. (bh) (Entered: 12/09/2009)
01/22/2010
1 5 l ~
Letter Motion from Mark J. McCarthy for Raymond P. Martinez requesting
joint application for extension of time to file dispositive motions submitted to
Judge Neal P. McCum. (McCarthy, Mark) (Entered: 01/22/2010)
01122/2010 196 ORDER granting 195 Letter Request, Motions to be filed by 1/25/2010.
Signed by Senior Judge Neal P. McCum on 1/22/2010. (ptm, ) (Entered:
01/22/2010)
01/25/2010 197 MOTION for Summary Judgment Motion Hearing set for 3/9/2010 10:00
AM in Syracuse before Senior Judge Neal P. McCum Response to Motion
due by 2/22/2010 Reply to Response to Motion due by 2/26/2010. filed by
Raymond P. Martinez. (Attachments: # 1 Statement of Material Facts, # Z
Affidavit of Raymond P. Martinez sworn to January 25, 2010, #.3.
Memorandum of Law in Support of Defendant Martinez' Motion for
Summary Judgment) (McCarthy, Mark) (Additional attachment(s) added on
1126/2010: # 1 Certificate of Service) (dpk,). (Entered: 01125/2010)
01/25/2010 198 MOTION for Summary Judgment (exhibits to 7.1 Statement to be filed in
another docket entry) Motion Hearing set for 3/9/2010 10:00 AM in Syracuse
before Senior Judge Neal P. McCum Response to Motion due by 2/22/2010
Reply to Response to Motion due by 2/26/2010. filed by David J. Swartz.
(Attachments: # 1 Statement of Material Facts, # ZAffirmation of Neal
Schoen, # .3. Exhibit(s) A to Schoen Affirmation, # 1 Memorandum of Law, #
.2 Certificate of Service) (Siuda, Senta) (Entered: 01125/2010)
01125/2010 199 NOTICE by David J. Swartz re 198 MOTION for Summary Judgment
(exhibits to 7.1 Statement to be filed in another docket entry) MOTION for
Summary Judgment (exhibits to 7.1 Statement to be filed in another docket
entry) Filing exhibits to Swarts 7.1 statement, starting with Exhibit 1
(Attachments: # 1 Exhibit(s) 2 to 7.1 statement, # ZExhibit(s) 3 part 1 to 7.1
statement, # .3. Exhibit(s) 3 part 2 to 7.1 statement, # 1 Exhibit(s) 4 to 7.1
statement, # .2 Exhibit(s) 5 to 7.1 statement)(Siuda, Senta) (Entered:
0112512010)
0112512010 200 NOTICE by David J. Swartz re 198 MOTION for Summary Judgment
(exhibits to 7.1 Statement to befiled in another docket entry) MOTION for
entry) Filing exhibits to Swarts 7.1 statement, starting with Exhibit 6 part 1
(Attachments: # 1 Exhibit(s) 6 part 2 to 7.1 statement, # ZExhibit(s) 6 part 3
to 7.1 statement, #.3. Exhibit(s) 6 part 4 to 7.1 statement)(Siuda, Senta)
(Entered: 01125/2010)
0112512010 201 NOTICE by David J. Swartz re 198 MOTION for Summary Judgment
entry) Filing exhibits to Swarts 7.1 statement, starting with Exhibit 7part 1
(Attachments: # 1 Exhibit(s) 7 part 2 to 7.1 statement, # ZExhibit(s) 7 part 3
to 7.1 statement, # .3. Exhibit(s) 7 part 4 to 7.1 statement, # 1 Exhibit(s) 7 part
5 to 7.1 statement, # .2 Exhibit(s) 7 part 6 to 7.1 statement, # QExhibit(s) 7
part 7 to 7.1 statement)(Siuda, Senta) (Entered: 01/25/2010)
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01/25/2010 202 NOTICE by David 1. Swartz re 198 MOTION for Summary Judgment
entry) Filing exhibits to Swarts 7.1 statement, starting with Exhibit 8 and 9
(Attachments: # 1 Exhibit(s) 10 part 1 to 7.1 statement, # 2 Exhibit(s) 10 part
2 to 7.1 statement, # 1 Exhibit(s) 10 part 3 to 7.1 statement, # 1. Exhibit(s) 10
part 4 to 7.1 statement, # .5. Exhibit(s) 10 part 5 to 7.1 statement, # QExhibit
(s) 10 part 6 to 7.1 statement, # 1 Exhibit(s) 10 part 7 to 7.1 statement)(Siuda,
Senta) (Entered: 01/25/2010)
01/25/2010 203 MOTION for Summary Judgment Motion Hearing set for 3/9/2010 10:00
AM in Syracuse before Senior Judge Neal P. McCum Response to Motion
due by 2/22/2010 Reply to Response to Motion due by 2/26/2010. filed by
Children First Foundation, Inc.. (Attachments: # 1 Memorandum of Law, # 2
Declaration of Jeffrey A. Shafer, # 1 Statement of Material Facts, # 1. Exhibit
(s) A-C, # .5. Exhibit(s) D-L, # QExhibit(s) M) (Shafer, Jeffrey) (Entered:
01/25/2010)
01/25/2010 204 NOTICE by David J. Swartzre 198 MOTION for Summary Judgment
entry) Filing exhibits to Swarts 7.1 statement, starting with Exhibit 10 part 8
(Attachments: # 1 Exhibit(s) 10 part 9 to 7.1 statement, # 2 Exhibit(s) 10 part
10 to 7.1 statement, # 1 Exhibit(s) 10 part 11 to 7.1 statement, # 1. Exhibit(s)
10 part 12 to 7.1 statement, # .5. Exhibit(s) 10 part 13 to 7.1 statement, # Q
Exhibit(s) 10 part 14 to 7.1 statement, # 1 Exhibit(s) 10 part 15 to 7.1
statement)(Siuda, Senta) (Entered: 01/25/2010)
01125/2010 205 NOTICE by David 1. Swartz re 198 MOTION for Summary Judgment
entry) Filing exhibits to Swarts 7.1 statement, starting with Exhibit 11
(Attachments: # 1 Exhibit(s) 12 to 7.1 statement, # 2 Exhibit(s) 13 to 7.1
statement, # 1 Exhibit(s) 14 to 7.1 statement)(Siuda, Senta) (Entered:
01125/2010)
01125/2010 206 NOTICE by Children First Foundation, Inc. re 203 MOTION for Summary
Judgment Continued Exhibits, beginning with Exhibit N Part 1 (Attachments:
# 1 Exhibit(s) N Part 2, # 2 Exhibit(s) 0 - Y)(Shafer, Jeffrey) (Entered:
01125/2010)
01125/2010 207 NOTICE by Children First Foundation, Inc. re 203 MOTION for Summary
Judgment Continued Exhibits, beginning with Exhibit Z (Attachments: # 1
Exhibit(s) MM - TT, # 2 Exhibit(s) UU)(Shafer, Jeffrey) (Entered:
01125/2010)
01/25/2010 208 NOTICE by Children First Foundation, Inc. re 203 MOTION for Summary
Judgment Continued Exhibits, beginning with Exhibit VVpart 1
(Attachments: # 1 Exhibit(s) VV part 2, # 2 Exhibit(s) WW - XX, # 1 Exhibit
(s) YY - AAA, # 1. Certificate ofService)(Shafer, Jeffrey) (Entered:
01125/2010)
4'i? 0-1
1 ')r7/")()ll
0112612010 CLERK'S CORRECTION OF DOCKET ENTRY re 197 Motion for
Summary Judgment. Added Certificate of Service to docket entry at the
request of Mark McCarthy, Esq. (dpk) (Entered: 01/2612010)
requesting Extension of Deadline submitted to Judge Neal P. MeCum.
02/04/2010 210 ORDER granting 209 Letter Request for an extension to file responses to :
198 MOTION for Summary Judgment (exhibits to 7.1 Statement to bejiled in
another docket entry) MOTION for Summary Judgment (exhibits to 7.1
Statement to bejiled in another docket entry), 197 MOTION for Summary
Judgment, 203 MOTION for Summary Judgment: Responses to Motions due
by 2/2212010. Signed by Senior Judge Neal P. MeCum on 2/3/2010. (ptm,)
(Entered: 02/04/2010)
02/0512010 CLERK'S CORRECTION OF DOCKET ENTRY: Clerk has deleted the #
211 Amended Document relating to the # 203 Summary Judgment Motion
from the docket at the request of Attorney Shafer's Office. The corrected
document will be refiled ASAP. (mae) (Entered: 02/0512010)
02/0512010 211 AMENDED DOCUMENT by Children First Foundation, Inc.. Amendment to
203 MOTION for Summary Judgment Amended Statement ofMaterial Facts
correcting exhibit references at paragraphs 16, 21, 44, 46, 84, and 88.
(Attachments: # 1 Memorandum of Law correcting exhibit reference on page
8, previously cited as "Def. Ex. SS", correct citation is "Ex. SS", # 2
Certificate ofService)(Shafer, Jeffrey) (Entered: 02/05/2010)
02/19/2010 212 Letter Motion from Senta B. Siuda for David J. Swartz requesting extension
of opposition and reply deadlines submitted to Judge MeCum. (Siuda, Senta)
(Entered: 02/1912010)
02/19/2010 ORDER granting 212 Letter Request. Motions for summary judgment at Dkt.
Nos. 197, 198 and 203 are to be taken on submit and no oral argument will be
heard. Opposition papers are due March 1, 2010 and reply papers are due
March 15,2010. Signed by Senior Judge Neal P. MeCum on 2/19/10. (cas)
(Entered: 02/19/2010)
03/01/2010 213 RESPONSE in Opposition re 198 MOTION for Summary Judgment (exhibits
to 7.1 Statement to be jiled in another docket entry) MOTION for Summary
Judgment (exhibits to 7.1 Statement to be jiled in another docket entry) filed
by Children First Foundation, Inc.. (Attachments: # 1 Certificate of Service)
03/0112010 214 MEMORANDUM OF LAW in Opposition to Plaintiffs Motion for Summary
Judgment filed by Raymond P. Martinez. (Attachments: # 1 Exhibit(s)
Exhibit A to Memorandum of Law in Opposition to Plaintiffs Motion for
Summary Judgment, # 2 Certificate of Service)(McCarthy, Mark) (Entered:
03/0112010)
03/0112010 215 STATEMENT OF MATERIAL FACTS re 198 MOTION for Summary
Judgment (exhibits to 7.1 Statement to be jiled in another docket entry)
MOTION for Summary Judgment (exhibits to 7.1 Statement to be jiled in
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another docket entry) Plaintiffs Response to Defendants' Statement of
Material Facts filed by Children First Foundation, Inc.. (Attachments: # 1
Certificate ofService)(Shafer, Jeffrey) (Entered: 03/01/2010)
03/0112010 216 RESPONSE in Opposition re 197 MOTION for Summary Judgment filed by
Children First Foundation, Inc.. (Attachments: # 1 Certificate of Service)
(Shafer, Jeffrey) (Entered: 03/0112010)
03/0112010 217 RESPONSE in Opposition re 203 MOTION for Summary Judgment
(response to 7.1 Statement) filed by David J. Swartz. (Attachments: # 1
Affirmation (Supplemental) of Neal Schoen, # ~ Memorandum of Law, # 1
Certificate of Service)(Siuda, Senta) (Entered: 03/01/2010)
0311512010 218 REPLY to Response to Motion re 203 MOTION for Summary Judgment
Reply Memorandum ofLaw in support ofDefendant Martinez' Motion for
Summary Judgment filed by Raymond P. Martinez. (Attachments: # 1
Certificate of Service)(McCarthy, Mark) (Entered: 03115/2010)
Plaintiffs Reply to Defendant Raymond Martinez filed by Children First
Foundation, Inc.. (Attachments: # 1 Appendix, # ~ Certificate of Service)
(Shafer, Jeffrey) Text added on 3/17/2010. (mae) (Entered: 0311512010)
03/1512010 220 REPLY to Response to Motion re 203 MOTION for Summary Judgment
Plaintiffs Reply to Defendant David J Swarts filed by Children First
Foundation, Inc.. (Attachments: # 1 Certificate ofService)(Shafer, Jeffrey)
(Entered: 03115/2010)
entry) filed by David J. Swartz. (Attachments: # 1 Certificate of Service)
(Siuda, Senta) (Entered: 0311512010)
0411212010 222 NOTICE by Children First Foundation, Inc. re 203 MOTION for Summary
Judgment Letter notifying the court ofsupplemental authority. (Shafer,
Jeffrey) (Entered: 04/1212010)
0411512010 223 LETTER BRIEF in response to plaintiffs April 12, 2010 letter by David J.
Swartz. (Siuda, Senta) (Entered: 0411512010)
11/0812011 224 MEMORANDUM-DECISION AND ORDER: It is ORDERED that the #
198 motion for summary judgment by Barbara J. Fiala, in her official
capacity as Commissioner for the NYS DMV is DENIED; that the # 197
motion for summary judgment by Raymond P. Martinez regarding his
affirmative defense of qualified immunity is GRANTED; and that the # 203
motion for summary judgment by Children First Foundation, Inc. is
GRANTED. Further ORDERED that Barbara J. Fiala, in her official capacity,
as well as her agents, employees, officials and any other person acting in
concert with her or on her behalf, shall approve Children First Foundation,
Inc.'s preferred custom plate design application that was submitted prior to
the i n s t i t u ~ i o n of the moratorium on acceptance of new plate applications.
Further ORDERED that execution of Judgment in this action shall be stayed
12/7/2011
pending a potential appeal, and shall continue to be stayed until resolution of
that appeal. The Clerk of the Court is to amend the caption to reflect that
Barbara J. Fiala is substituted as a defendant for David. J. Swartz pursuant to
Rule 25(d) of the Fed.R.Civ.P. and to reflect that Raymond P. Martinez has
been terminated as a defendant to this action. Signed by Senior Judge Neal P.
MeCum on 1118/2011. (mae) (Entered: 11108/2011)
11/09/2011 225 JUDGMENT in favor of Children First Foundation, Inc. against Barbara J.
Fiala. Entered in accordance with the # 224 Memorandum-Decision and
Order of Senior District Judge Neal P. MeCum. {Execution of this Judgment
is to be stayed pending the appeal time frame. If an appeal is filed, execution
shall remain stayed pending resolution of said appeal} (mae) (Entered:
11/09/2011)
requesting order approving Parties' stipulated Attorney Fee and Cost Motions
deadlines submitted to Judge MeCum. (Attachments: # 1 Stipulation)(Shafer,
Jeffrey) (Entered: 11/14/2011)
11/18/2011 227 ORDER granting 226 Letter Motion from Jeffrey A. Shafer for Children First
Foundation, Inc. requesting order approving Parties' stipulated Attorney Fee
and Cost. Signed by Senior Judge Neal P. MeCum on 11118/2011. (ptm)
(Entered: 11118/2011)
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https://ecf.nvnd.uscourts.gov/cgi-binlDktRpt.pl?116423837387842-L 452 0-1
THE CHILDREN FIRST FOUNDATION,
INC.,
Plaintiff,
-v.
RAYMOND P. MARTINEZ, individually,
and BARBARA J. FIALA, in her official
capacity as Commissioner of the New York
State Department of Motor Vehicles,
1
1:04-CV-0927
(NPM/RFT)
Defendants.
APPEARANCES:
ALLIANCE DEFENSE FUND
Attorneys for Plaintiff
15100 N. 90th Street
401 Market Street, Suite 900
Shreveport, LA 71101
801 G Street NW, Suite 509
Washington, D.C. 20001
OF COUNSEL:
BRIAN W. RAUM, ESQ.
JAMES M. JOHNSON, ESQ.
JEFFREY A. SHAFER, ESQ.
I Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Barbara J. Fiala, as
urrent Commissioner of the New York State Department of Motor Vehicles, is substituted for
avid. J. Swartz.
TRAINOR & CUTLER, LLP JAMES P. TRAINOR, ESQ.
2 Memphis Place, Suite 153
Malta, New York 12020
HARRIS BEACH PLLC MARK J. MCCARTHY, ESQ.
Attorneys for Raymond Martinez
677 Broadway, Suite 1101
Albany, NY 12207
HON. ERIC T. SCHEIDERMAN, SENTA B. SIUDA, ESQ.
Attorney General for the State of Assistant Attorney General
New York
Attorney for Barbara J. Fiala
615 Erie Boulevard West, Suite 102
Syracuse, NY 13204-2455
Neal P. MeCum, Senior District Judge
MEMORANDUM, DECISIONAND ORDER
1. Introduction
Like many other states, New York operates a program that allows vehicle
owners to display specialty license plates which bear a specific message or symbol.
In this civil rights action, the plaintiff, the Children First Foundation, Inc. ("CFF"),
challenges the denial of its application for a specialty plate by defendants, the
former and current commissioners of the New York Department of Motor Vehicles
("DMV"). CFF sues Raymond Martinez ("Martinez"), the former commissioner,
in his individual capacity and sues Barbara J. Fiala ("Fiala"), the current
commissioner, solely in her official capacity (collectively, "Defendants"). CFF
argues primarily that Defendants violated its rights under the Free Speech Clause
of the First Amendment to the United States Constitution, but also asserts claims
under the Equal Protection and Due Process Clauses of the Fourteenth
Amendment. Presently before the court are motions for summary judgment by
each party. Decision is rendered solely on the papers submitted, without oral
argument. Because the court concludes that defendants violated CFF's First
Amendment free speech rights as a matter of law, it need not address either of
CFF's Fourteenth Amendment claims. Also, because Martinez prevails on his
affirmative defense of qualified immunity, CFF's individual capacity claims
against him are dismissed.
II. Procedural Background
Familiarity with much of the procedural background of this case is
presumed, but will be summarized here for purposes of clarity.
This action was originally commenced in August 2004. The defendants
subsequently filed a pre-answer motion to dismiss the entire complaint. After
hearing oral argument regarding the motion, this court issued a bench order
granting the motion in part, based on stipulation by plaintiffs, and denying the
motion in part.
Thereafter, defendants filed both a motion for reconsideration with this court
and an appeal of this court's decision on the motion to dismiss with the Court of
Appeals for the Second Circuit. The sole issue on reconsideration and appeal was
this court's denial of qualified immunity. This court denied defendants' motion for
reconsideration, noting that they failed to overcome the "formidable hurdle" faced
by movants seeking dismissal on qualified immunity grounds via a motion to
dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See
Dkt. No. 31. Shortly thereafter, defendants appealed the denial of their
2
reconsideration to the Court of Appeals for the Second Circuit.
The Second Circuit dismissed both appeals by summary order, finding that
because facts supporting the defense of qualified immunity do not appear on the
face of the complaint, said defense cannot be determined as a matter of law, and
therefore, the court lacks appellate jurisdiction. See Children First Found., Inc. v.
Martinez, 169 Fed. App'x. 637, 639 (2d Cir. 2006). Defendants' appeals were
dismissed accordingly.
A few months later, after stipulation by all parties, plaintiffs amended their
complaint to comport with this court's ruling on the Rule 12(b)(6) motion. Shortly
after CFF amended its complaint, defendants collectively filed an answer. At some
point within the following six months, one of the defendants made a motion to
amend her answer, which was granted in part and denied in part by Magistrate
Judge Randolph F. Treece, see Children First Found., Inc. v. Martinez, 631 F.
Supp. 2d 159 (N.D.N.Y. 2007), and later, upon objection of the parties, reversed by
this court, see Children First Found., Inc. v. Martinez, No.1 :04-cv-0927, 2007 WL
4618524, at *1-3 (N.D.N.Y. Dec. 27, 2007). Interlocutory appeal was requested,
and denied. See Children First Found., Inc. v. Martinez, No.1 :04-cv-0927, 2008
WL 2557433 (N.D.N.Y. June 20,2008).
The parties eventually stipulated to the dismissal of all defendants except
Martinez and Fiala. Subsequently, the presently pending motions for summary
judgment were filed.
Ill, Factual Background
The relevant facts are not in dispute. Accordingly, there are no material
questions of fact to prevent summary judgment here. CFF is a non-profit
organization, incorporated in New York State, that exists to raise funds and
3
awareness to promote and support adoption as a positive choice for women with
unwanted pregnancies or newborns in New York, New Jersey, and Connecticut.
CFF restricts its donations to non-profit organizations that receive no government
funding, provide services to pregnant women, and do not perform or refer for
abortion. In December 2001, CFF, through its director and president, Dr. Elizabeth
Rex ("Rex"), applied for a custom plate through the DMV's specialty plate
program, which was later denied. Martinez was the commissioner ofDMV at that
time.
New York State law enables the commissioner of the DMV ("the
Commissioner") to issue special number (or "custom") license plates for an
additional fee, and to promulgate regulations in relation thereto. N.Y. VEH. &
TRAF. LAW 404(1) (McKinney 2009). The Commissioner shall not issue any
special number plate that, among other things, "is, [in his or her discretion,]
obscene, lewd, lascivious, derogatory to a particular ethnic or other group, or
patently offensive." N.Y. COMPo CODES R. & REGs. tit. 15, 16.4 (2001). One
category of special number plates is referred to by the DMV as a "Picture Plate"
and is defined as "a vehicle plate that has the words 'New York' contained in a
blue banner, and a picture or logo next to the plate number." There are several
categories and sub-categories of custom plates,2 some of which are authorized by
legislative action. See 404-b through 404-w. Otherwise, the procedure for the
application for and issuance of a custom plate is purely within the discretion of the
2 Atthe time ofCFF's application for a special number plate, these categories included
ports Teams and NASCAR; Organizations and Causes; Professions; Emergency Services;
ounties and Regions of New York State; Colleges, Fraternities and Sororities; and Military and
eterans.
4
Commissioner and is not governed by statute or regulation. According to the
DMV's website at the time of CFF's application for a custom plate, there are
certain pre-requisites to applying for a custom plate: (1) an organization must be
not-for-profit and registered with the New York State Department of State; (2) it
must have a sponsoring agency or organization as the main point of contact; and
(3) it must pay a $5000 deposit and sign a memorandum of understanding with the
DMV that the deposit is refunded when two hundred sets of the plate are sold
within a three-year period.
3
An organization can request a "custom plate
development kit" from the DMV, which includes information and the required
forms.
Ostensibly, a request was made for such a "development kit" because on
September 6,2001, a DMV employee sent Rex a letter and packet of information
that presented the requisite form and content of an application for a new custom
plate, including administrative details with respect to marketing, submission of
artwork, means of payment, and other matters. On December 28,2001, Rex, on
behalf ofCFF, submitted an application for a custom plate to DMV. CFF's
application included proposed artwork and design for the custom plate, which
reflects the corporate logo of Choose Life, Inc.:
4
"a yellow sun behind the faces of
two smiling children that are drawn as if in crayon by a child." Am. Compi. , 33a.
The plate design also included the tag line, "Choose Life," which also appears as if
3 Effective August 2, 2004, the DMV temporarily suspended consideration and approval
f requests for creation of new custom plate series.
4 Choose Life, Inc. ("CLI") is an organization that is incorporated in the State of Florida
nd that has assisted individuals and organizations in 49 states regarding applications for
Choose Life" license plates. CLI gave CFF permission to use its trademarked and copyrighted
ogo for CFF's specialty plate application in New York State.
5
drawn in crayon by a child. Two months later, Martinez denied CFF's application,
citing the denial of a request for a similar "Choose Life" plate by the DMV in
1998. The 1998 Choose Life plate was denied by DMV's then commissioner
Richard E. Jackson, Jr., citing "the State of New York's policy not to promote or
display politically sensitive messages" on its license plates due to the potential for
"road rage." Ex. W to Decl. of Jeffrey A. Shafer, Jan. 25, 2010, Dkt. No. 203-2
("Shafer Decl.").
Thereafter, CFF's legal counsel contacted Martinez by letter, wherein he
argued that the DMV's stated reason for the denial of CFF's custom plate
application constitutes impermissible viewpoint discrimination through Martinez's
unbridled discretion. In reply by letter on June 10, 2002, Deputy Commissioner
and Counselor Jill A. Dunn ("Dunn") stated that CFF's application was rejected
"on the grounds that the requested custom plate series is inconsistent with [the
DMV's] regulations in that the message is patently offensive and could provoke
outrage from members of the public." Ex. E to Shafer Decl., Dkt. No. 206-2.
Dunn went on to explain that
despite CFF's laudable goals and purposes, the message
chosen to convey them, as indicated in the application, is
subject to varying interpretations as best, and may even be
misleading. We believe that the phrase "Choose Life" is
more commonly associated with the abortion rights debate
than it is with the promotion and funding of adoption. The
[DMV's] issuance of a "Choose Life" custom plate series
would readily be perceived as governmental support for one
side of a controversy that has existed in this country for
several decades.
Id. Dunn next explained the merits of the DMV's concern about road rage, noting
that "[t]here is, quite clearly, a significant segment of the population that finds such
6
plates to be 'patently offensive. '" Id. Dunn concluded by stating that the DMV's
"decision is not based on the content of the proposed speech, but instead is
intended to preserve viewpoint neutrality by insuring that plates issued by the State
do not present or support either side of this issue, or any other political, religious or
social issue that has proven to be so contentious and divisive." Id. (emphasis in
original).
In October 2003, CFF submitted a revised custom plate design that included
a change in the tag line from "Choose Life" to "FUND-ADOPTION.ORG." The
revised plate also included a smaller version of CFF's corporate logo, with the
faces of two smiling children that are drawn as if in crayon by a child and the
phrase, "Choose Life," as if drawn in crayon by a child, directly underneath. Ex. N
to Shafer Decl., Dkt. No. 206. In February 2004, after receiving a follow-up
telephone message from Rex regarding the status ofCFF's revised plate, Martinez
notified Rex by letter that the revised plate design was being reviewed and
considered.
On March 31, 2004, Martinez wrote to Rex to inform her that the DMV was
adhering to its earlier denial of CFF's plate application. Martinez incorporated by
reference and attached Dunn's June 10,2002 letter explaining the legal basis and
rationale for the DMV's decision. Regarding the DMV's consideration ofCFF's
proposed plate design revision, Martinez noted that included in CFF's packet of
information in support of the revision is the acknowledgment that "the phrase
'Choose Life,' rather than 'Choose Adoption' or 'Support Adoption' is more
appealing to [CFF] specifically because it appeals to pro-life and anti-death penalty
supporters." Ex. GG to Shafer Decl., Dkt. No. 207 (emphasis in original).
Accordingly, Martinez added, he interprets that acknowledgment to state that "the
7
proposed plate design is, in fact, intended to draw attention to the very political,
social and religious issues that were addressed in [Dunn's] June 2002 letter." Id.
Martinez went on to explain that "in issuing a special plate, control over the design,
marketing and issuance of any custom plate series is solely within [the discretion
of the Commissioner of DMV] , unless otherwise directed by State law." Id.
On July 26, 2004, CFF again proposed an updated custom plate design with
its corporate logo and domain name, "SafeHavens-Adoption.org" or alternatively,
"NYChoose-Life.org" as the tag line. One week later, Dunn notified CFF that
Martinez suspended the custom plate program, and therefore CFF had no
application that was ripe for consideration. On August 4, 2004, CFF initiated the
present action.
IV, Discussion
A. Legal Standard
A motion for summary judgment shall be granted "if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter oflaw." Fed. R. Civ. P. 56(a). The movant has the initial
burden to show the court why it is entitled to summary judgment. See Salahuddin
v. Goord, 467 F.3d 263,272 (2d Cir. 2006) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323, 106 S. Ct. 2548 (1986)). If the movant meets its burden, the burden
shifts to the non-movant to identify evidence in the record that creates a genuine
issue of material fact. See id., at 273 (citing Matsushita Elec. Indus. C o . ~ Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348 (1986)).
When the court is deciding a motion for summary judgment, it must resolve
all ambiguities and draw all reasonable inferences in the non-movant's favor. See
Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241,244 (2d Cir.
8
2004) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 157,90 S. Ct. 1598
(1970)). Where, as here, a court is considering cross-motions for summary
judgment, each party's motion must be evaluated "on its own merits, taking care in
each instance to draw all reasonable inferences against the party whose motion is
under consideration." Byrne v. Rutledge, 623 F.3d 46,53 (2d Cir. 2010)
(quotation and citation omitted).
B. 42 U.S.c. 1983
In order to establish a claim pursuant to 42 U.S.c. 1983, a plaintiff must
show "(1) that some person has deprived him of a federal right, and (2) that the
person who has deprived him of that right acted under color of state ... law." Velez
v. Levy, 401 F.3d 75, 84 (2d Cir. 2005) (quoting Gomez v. Toledo, 446 U.S. 635,
640, 100 S. Ct. 1920 (1980) (internal quotations omitted)). "Section 1983 is not
itself a source of substantive rights[,] but merely provides a method for vindicating
federal rights elsewhere conferred[.]" Patterson v. County of Oneida, 375 F.3d 206,
225 (2d Cir. 2004) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3, 99 S. Ct.
2689 (1979)).
1. Freedom ofSpeech
The Free Speech Clause of the First Amendment to the United States
Constitution provides that "Congress shall make no law ... abridging the freedom
of speech." U.S. CONST. amend. I. The Free Speech Clause restricts government
regulation of private, not government, speech. See Pleasant Grove City. Utah v.
Summum, 555 U.S. 460, 467, 129 S. Ct. 1125, 1131 (2009) (citations omitted).
However, "[i]t is well established that 'the government need not permit all forms of
speech on property that it owns and controls.'" Perry v. McDonald, 280 F.3d 159,
166 (2d Cir. 2001) (quoting International Soc'y for Krishna Consciousness. Inc. v.
9
Lee, 505 U.S. 672, 678, 112 S. Ct. 2701 (1992)). Here, the parties agree that the
speech at issue in this case is private speech
5
and that New York license plates are
government property. In evaluating government regulations of private speech on
government 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.'"
~ , 280 F.3d at 166 (citing Cornelius v. NAACP Legal Def. & Educ. Fund. Inc.,
473 U.S. 788, 802, 105 S. Ct. 3439 (1985); PeflY Educ. Ass'n v. PeflY Local Educ.
Ass'n, 460 U.S. 37, 45, 103 S. Ct. 948 (1983)).
In a traditional public forum, speakers can be excluded "only when the
exclusion is necessary to serve a compelling state interest and the exclusion is
narrowly drawn to achieve that interest." Cornelius, 473 U.S. at 800, 105 S. Ct. at
3448. Strict scrutiny also applies when speech is excluded from a designated
public forum. See id. Such a forum is created "when the government has
intentionally designated a place or means of communication as a public forum."
Id.
6
In a nonpublic forum, however, speech may be restricted "as long as the
restrictions are reasonable and are not an effort to suppress expression merely
because public officials oppose the speaker's view." Id. (quotation and citation
5 While Defendants argue that the speech involved here is in part government speech and
n part private speech, they agree that as long as at least some private speech is involved, a forum
nalysis is required. See Perry v. McDonald, 280 F.3d 159, 166-67 (2d Cir. 2001).
6 The Supreme Court has recognized a subset ofthe designated public forum, called the
imited public forum, wherein restrictions that are viewpoint neutral and reasonable do not
iolate the First Amendment. See Perry Education Assn. v. Perry Local Educators' Assn., 460
.S. 37, 46-47, 103 S. Ct. 948, 955-56 (1983). See also Christian Legal Soc'y Chapter ofthe
niv.ofCal. Hastin s ColI. of the Law v. Martinez, - U.S. -, -, 130 S. Ct. 2971, 2984
2010).
10
omitted). In other words, a restriction on speech in a nonpublic forum will be
upheld so long as it is reasonable and viewpoint neutral. See Byrne, 623 F.3d at 53
(citing Cornelius, 473 U.S. at 800).
In support of their motion for summary judgment, Defendants
7
argue that the
custom plate program at issue here is a nonpublic forum, and that the denial of
CFF's plate application was a permissible content based restriction that was both
viewpoint neutral and reasonable, and therefore did not violate CFF's free speech
rights. In opposition, CFF argues that Defendants' restriction was both viewpoint
discrimination and unreasonable and therefore, unconstitutional in any forum.
Also, CFF argues, because the forum here is actually a designated public forum,
Defendants' purported content based exclusion is unconstitutional.
The parties essentially submit these same arguments regarding CFF's motion
for summary judgment, except in support of its motion, CFF makes the argument
regarding the level of scrutiny to be applied in a designated public forum, which is
that there is no compelling state interest in censoring private speakers presenting a
"choose life" viewpoint in a forum the state has opened to such speakers for the
purpose of expressing viewpoints. CFF also argues in support of its motion that
Defendants' restriction of their plate application was an unconstitutional exercise
of unbridled discretion to deny its plate application based on viewpoint.
a. Forum Analvsis
Because the parties agree, and the record supports the conclusion that the
speech here is private, not government, speech, the next step is to conduct a forum
7 Although Martinez seeks summary judgment on the basis ofqualified immunity, he
dopts the arguments set forth by Fiala in her motion, opposition and reply papers.
11
Case 1:04-cv-00927-NPrvI-RFT Document 224 Filed 11/08/11 Page 13 of 34
analysis in order to detennine the level of scrutiny to be applied to Defendants'
denial of CFF' s plate application. Initially, the issue of defining the relevant forum
must be resolved. Defendants argue that the forum is custom license plates in New
York State, while CFF argues the forum is limited to the empty spaces on those
license plates that the State makes available for private messages. To be sure,
courts that have analyzed First Amendment challenges regarding messages on
special or custom license plates have either explicitly concluded, or presumed it to
be, that as Defendants argue here, the forum is the license plate program or the
license plate itself. See, e.g., Roach v. Stouffer, 560 F.3d 860, 868 (8
th
Cir. 2009);
Choose Life Illinois, Inc. v. White, 547 F.3d 853, 864 (7
th
Cir. 2008), cert. denied,
130 S. Ct. 59 (2009); Arizona Life Coalition, Inc. v. Stanton, 515 F.3d 956, 968
(9
th
Cir. 2008), cert. denied, 129 S. Ct. 56 (2008); Planned Parenthood of S.C. v.
Rose, 361 F3d 786, 795 (4
th
Cir. 2004), cert. denied, 125 S. Ct. 1036, (2005);
Sons of Confederate Veterans, Inc. v. Comm'r of VA Dep't of Motor Vehicles,
288 F.3d 610, 625 (4
th
Cir. 2002), reh' g en bane denied, 305 F.3d 241 (4
th
Cir.
2002). CFF cites no legal authority to support its argument seeking a limited
definition of the forum beyond that which many other courts have found.
Moreover, a conclusion that the forum here is, as Defendants argue, New York's
custom plate program, does not prejudice CFF. Therefore, the court concludes, in
accordance with the aforementioned caselaw, that the forum at issue here is New
York's custom license plate program.
Next, it is necessary to detennine whether New York's custom license plates
are a traditional public, designated public, or nonpublic forum. "A traditional
public forum is property, such as a public street or a park, that 'by long tradition or
by government fiat ... ha[s] been devoted to assembly and debate. '" ~ , 2 8 0
12
F.3d at 166 (citing Perry Educ. Ass'n, 460 U.S. at 45,103 S. Ct. 948). Clearly, by
this definition, New York's custom license plate program is not a traditional public
forum. Moreover, none of the courts dealing with First Amendment challenges to
private messages on license plates have found that license plates are a traditional
public forum. Instead, most courts have found the forum to be a nonpublic forum
or a limited public forum. See, e.g., Choose Life Illinois, Inc., 547 F.3d at 864-65
(nonpublic forum); Arizona Life Coalition, 515 F.3d at 968-71 (limited public
forum); Planned Parenthood of S.C., 361 F.3d at 798 (limited public forum). In
any event, the parties in this case do not argue that New York's custom license
plate program is a traditional public forum. Instead, Defendants argue that New
York's custom plate program is a nonpublic forum and CFF argues it is a
designated public forum.
The Court of Appeals for the Second Circuit has twice found license plates,
albeit "vanity" license plates, to constitute a nonpublic forum. See Byrne, 623
F.3d at 280 F.3d at 167-169. the court considered five
factors before concluding that vanity plates in the State of Vermont are a nonpublic
forum as opposed to a designated public forum: (1) Vermont's stated policy in
issuing license plates is vehicle identification; (2) Vermont's vanity license plates
serve the purpose of raising revenue; (3) the expressive activity on Vermont's
vanity plates is subject to numerous restrictions; (4) the general public does not
have unimpeded access to Vermont license plates; and (5) vanity plates are a
"highly limited and extremely constrained means of expression" because they are
"physically restricted by size and shape and by the state's interests, including that
of vehicle identification." Id. To be sure, New York's custom license plates are
arguably different than vanity plates, albeit in limited respects. However, other
13
courts have conducted forum analyses of similar custom license plate programs,
which this court finds instructive.
The Court of Appeals for the Seventh Circuit has concluded, based on
factors similar to those considered by the court in ~ , that the specialty license
plate program in the State of Illinois is not a designated public forum, but a
nonpublic forum. See Choose Life Illinois, 547 F.3d at 865. Specifically, the
court found that "[l]icense plates in Illinois, as elsewhere, are heavily regulated by
policy and practice. [citation omitted.] Their primary purpose is to identify the
vehicle, not to facilitate the free exchange of ideas. License plates are not by
nature compatible with anything more than an extremely limited amount of
expressive activity." In contrast, the Court of Appeals for the Ninth Circuit
concluded that Arizona's special license plate program was a limited public forum.
See Arizona Life Coalition, 515 F.3d at 969-71. Noting that "the designated and
limited public forum classifications have been the source of much confusion," the
court explained that "[a] limited public forum exists when the government
intentionally opens up a nonpublic forum to expressive activity by a certain class
of speakers to address a particular class of topics." Id., at 969 (internal quotation
and citation omitted). The court concluded that because Arizona opened up its
special license plate program to a certain class of organizations, subject to
numerous restrictions, with the general public having only limited access, the
program is a limited public forum. Id., at 969-971.
Here, CFF argues that New York's custom plate program is a designated
public forum because the DMV has designed and operated a program that made
and makes available special license plates, which are the channel of
communication, that bear the logo and tag line which advertise for certain
14
speakers, to wit, eligible participants and vehicle owners. CFF contends that the
DMV has imposed no substantive restrictions on access to the custom plate
program outside of stylistie and other factors unrelated to message. See PI.' s Mem.
of Law in Opp'n to Fiala?s Mot. for Summ. 1., at 17-18, Dkt. No. 213 (citing
Cornelius, 473 U.S. at 802, 105 S. Ct. 3439).
"A designated public forum is created by purposeful governmental
action-that is, when the government' intentionally open[s] a nontraditional forum
for public 280 F.3d at 166 (quoting Cornelius, 473 U.S. at 802,
105 S. Ct. 3439). By Supreme Court definition, a designated forum exists when
the government designates "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." Cornelius, 473 U.S. 802,105 S. Ct. 3439. Because
such a forum is not created by government inaction or by the government
permitting limited discourse, courts must look to "the policy and practice of the
government" as well as "the nature of the property and its compatibility with
expressive activity" in order to determine "whether [the government] intended to
designate a place not traditionally open to assembly and debate as a public forum."
Id. That expressive activity occurs in the context of the forum does not imply that
the forum becomes a public forum for First Amendment purposes. Id., at 805, 105
S. Ct. 3439. Instead, it is the government's intent that controls.
In Cornelius, the Supreme Court found that the federal government's
Combined Federal Campaign ("CFC") is a nonpublic forum, noting the
government did not create the CFC for expressive activity and the government has
wide discretion to limit access to the CFC in order to avoid interruptions to the
performance of the duties of its employees. See id., at 805-806,105 S. Ct. 3439.
15
In doing so, it distinguished its previous cases where it found the government to
have designated its property as a public forum. Id., at 802-803, 105 S. Ct. 3439
(citing Widmar v. Vincent, 454 U.S. 263, 267, 102 S. Ct. 269 (1981) (where a state
university had an express policy of making its meeting facilities available to
registered student groups); Madison Joint School District v. Wisconsin
Employment Relations Comm's, 429 U.S. 167, 174 n.6, 97 S. Ct. 421 (1976)
(where a state law provided for open school board meetings); Southeastern
Promotions, Ltd. v. Conrad, 420 U.S. 546, 555, 95 S. Ct. 1239 (1975) (where a
municipal auditorium and a city-leased theater were designed for, and dedicated to
expressive activities).
CFF's argument that New York designated its custom plate program as a
public forum is inconsistent with the relevant legal authority. Here, while New
York arguably opened up its custom plate program to a class of organizations, it
did not give the general public open access. See R.O. ex reI. Ochshorn v. Ithaca
City Sch. Dist., 645 F.3d 533, 540 (2d Cir. 2011) (stating that a designated forum
exists where government permits "indiscriminate use by the general public")
(quoting Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267, 108 S. Ct. 562
(1988)). See also Hotel Emps. & Rest. Emps. Union Local 100 v. N.Y.C. Dep't of
Parks & Recreation, 311 F.3d 534, 545 (2d Cir. 2002) (stating that a designated
public forum is one intentionally "opened for all types of expressive activity").
Thus, by definition, New York's custom plate program is not a designated public
forum.
To be sure, it is arguable that New York created a limited public forum, as
the Ninth Circuit found in Arizona Life Coalition. See id., 515 F.3d at 969-71. In
contrast to a designated public forum, "a limited public forum is created when the
16
state 'opens a non-public forum but limits the expressive activity to certain kinds
of speakers or to the discussion of certain subjects. '" R.O. ex reI. Ochshom, 645
F.3d at 539 (quoting Hotel Emps. & Rest. Emps. Union Local 100, 311 F.3d at
545). However, the court need not decide whether New York's custom plate
program is a limited public or nonpublic forum, because in both forums,
government restrictions on speech are permissible if they are reasonable and
viewpoint neutral. See Christian Legal Soc'y Chapter of the Univ. of CaL
Hastings ColI. ofthe Law v. Martinez - U.S. -, -, n.ll, 130 S. Ct. 2971,
2984-85 (2010) ("in [a limited public] forum, a governmental entity may impose
restrictions on speech that are reasonable and viewpoint-neutral") (quoting
Pleasant Grove City, 555 U.S. at 470, 129 S. Ct. 1125).8
8 CFF points out that the Court of Appeals for the Second Circuit has held that in a
imited public forum, strict scrutiny applies to restrictions on speech that fall within the category
or which the forum has been opened. See Pl.'s Mem. of Law in Opp'n to Fiala's Mot. for
umm. J. at 20 (citing Make the Road by Walking, Inc. v. Turner, 378 F.3d 133, 143 n.4 (2d Cir.
004). Not surprisingly, CFF makes the argument that even if the court finds that New York's
ustom plate program is a limited public forum, strict scrutiny should apply, requiring the court
o decide whether Defendants' denial ofCFF's plate application was necessary to serve a
ompelling state interest and narrowly drawn to achieve that interest. To be sure, the Second
ircuit has previously found that in a limited public forum, strict scrutiny may apply depending
n whether restrictions on speech fall within the category for which the forum has been opened.
ee Hotel Emps. & Rest. Emps. Union Local 100 v. N.Y.C. Dep't of Parks & Recreation, 311
.3d 534,545-46 (2d Cir. 2002) (citing Travis v. Owego-Apalachin Sch. Dist., 927 F.2d 688,
92 (2d Cir.1991); Fighting Finest. Inc. v. Bratton, 95 F.3d 224, 229 (2d Cir.1996)). In other
ases, however, the court has found that restrictions in limited public fora are permissible if
easonable and viewpoint neutral. See R.O. ex reI. Ochshorn, 645 F.3d at 540 (citing Peck v.
aldwinsville Cent. Sch. Dist., 426 F.3d 617, 626 (2d Cir. 2005)); Byrne, 623 F.3d at 54, n.8
citing Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106-07, 121 S. Ct. 2093 (2001);
osenber er v. Rector & Visitors ofUniv. of Va., 515 U.S. 819, 829,115 S. Ct. 2510 (1995));
eneral Media Commc'ns Inc. v. Cohen, 131 F.3d 273, 278, n.6 (2d Cir. 1997). While the court
as recognized the incongruity between these rulings, it has not yet resolved the issue. See
me, 623 F.3d at 54, n.8; Make the Road by Walking, Inc., 378 F.3d at 143, n.4. In any event,
he Supreme Court has repeatedly concluded that restrictions in a limited public forum are
ermissible if they are reasonable and viewpoint neutral. See Christian Legal Soc'y, - U.S. at
17
Case 1:04-cv-00927-NPM-RFT Document224 Filed 11/08/11 Page 190f34
b. Viewpoint Neutrality and Reasonableness
Defendants' denial of CFF' s plate application will be deemed constitutional
if it was both viewpoint neutral and reasonable. Defendants argue their denial was
a permissible content-based restriction that was both viewpoint neutral and
reasonable, while CFF argues their denial was not content-based, but was instead
unreasonable viewpoint discrimination. CFF argues in the alternative that New
York's statutory and regulatory scheme is unconstitutional because it allowed
Defendants unbridled discretion to engage in viewpoint discrimination.
Defendants argue, citing Choose Life Illinois for support, that they
permissibly denied CFF's plate application pursuant to DMV's policy to exclude
the entire subject of abortion from New York's custom license plate program. See
id., 547 F.3d at 865. According to Defendants, the record reflects that "denying
[CFF's] 'Choose Life' custom plate was clearly an effort to avoid any appearance
of favoring either side of the abortion debate and to maintain viewpoint neutrality
on this contentious issue." Defso' Mem. of Law on Opp'n to PIo's Mot. for Summ.
1. at 9, Dkt. No. 217-2. See also Defso' Mem. of Law in Support of Mot. for
Summ. 1. at 13, Dkt. No. 198-4. Defendants cite Cornelius for support, where the
court concluded that the federal government did not violate the First Amendment
when it limited participation in the CFC "to avoid the appearance of political
favoritism without regard to the viewpoint of the excluded groups." Id., 473 U.S.
at 813, 105 S. Ct. 3439.
, n.ll, 130 S. Ct. at 2984-85; Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 129 S. Ct.
125,1131 (2009); Good News Club, 533 U.S. at 106-07, 121 S. Ct. 2093; Rosenberger, 515
.S. at 829, 115 S. Ct. 2510; Perry Education Assn., 460 U.S. at 46-47, 103 S. Ct. 948.
ccordingly, the court need not address CFF's argument that strict scrutiny should apply.
18
CFF disputes Defendants' characterization of their denial as content based,
arguing instead that Defendants' intent to deny participation in New York's custom
plate program to groups that have a controversial or divisive message is viewpoint
discrimination. See Pl.'s Mem. of Law in Support of Mot. for Summ J. at 11, Dkt.
No. 203-1 (citing Child Evangelism Fellowship ofNJ., Inc. v. Stafford Twp. Sch.
Dist., 386 F.3d 514,527 (3d Cir. 2004)). See also Pl.'s Mem. off Law in Opp'n to
Defs.' Mot. for Summ J. at 8, Dkt. No. 213. CFF also cites Arizona Life Coalition
for support, noting that the Ninth Circuit there dismissed a similar argument in
favor of its finding of viewpoint discrimination. Moreover, CFF argues, there is no
evidence that the DMV had a policy to restrict the entire subject of abortion that
was in existence at the time of CFF's application for a custom license plate.
"As the Supreme Court has noted, the distinction between content and
viewpoint discrimination 'is not a precise one.'" General Media Commc'ns, Inc. v.
Cohen, 131 F.3d 273,281 (2d Cir. 1997) (quoting Rosenberger v. Rector &
Visitors of the Univ. of Va., 515 U.S. 819, 831,115 S. Ct. 2510, 2517-18 (1995).
The Court in Rosenberger explained the distinction as "between, on the one hand,
content discrimination, which may be permissible if it preserves the purposes of
that limited forum, and, on the other hand, viewpoint discrimination, which is
presumed impermissible when directed against speech otherwise within the
forum's limitations." Rosenberger, at 830-31 (citing Pem Educ. Ass'n, 460 U.S.
at 46, 103 S. Ct. at 955).
The Court of Appeals for the Seventh Circuit and the Court of Appeals for
the Ninth Circuit have each relied on Rosenberger to decide the same issue here,
whether the government's denial of a "Choose Life" custom or specialty plate is
content discrimination or viewpoint discrimination. In Choose Life Illinois, the
19
Case 1:04-cv-00927-i'JPM-RFT Document 224 Filed 11/08/11 Page 21 of 34
Seventh Circuit found the government's restriction was a pennissible content based
restriction, while in Arizona Life Coalition the Ninth Circuit found the restriction
was impennissible viewpoint discrimination. Accordingly, discussion of each of
these cases is warranted.
In Arizona Life Coalition, the Arizona License Plate Commission ("the
Commission") denied an application for a "Choose Life" license plate after
"[m]embers of the Commission raised concerns over whether the general public
would believe Arizona had endorsed the message of the 'Choose Life' license
plate, as well as concerns over whether groups with differing viewpoints would file
applications." Id., 515 F.3d at 956. The statute governing the issuance of special
organization license plates in Arizona requires that the license plate "cannot
promote a specific product for sale, or a specific religion, faith or antireligious
belief." Id., at 972. While the statute does not "create objective criteria for
limiting' controversial' material, ... [nor does it] prohibit speech related to
abortion," id., at 972, it does require that "the primary activity or interest of the
organization ... is not offensive or discriminatory in its purpose, nature, activity or
name," id., at 961 (quoting ARIZ. REv. STAT. ANN. 28-2404(B)).
In rejecting the Commission's argument that it did not engage in viewpoint
discrimination because, similar to Defendants' argument here, it did not grant a
special organization plate to a group with an opposing viewpoint and therefore,
neither side of the "Choose Life" issue is represented by a special organization
plate, the Ninth Circuit relied upon the Supreme Court's rejection of "a similar
argument in Rosenberger." Arizona Life Coalition, 515 F.3d at 971 (citing
Rosenberger, 515 U.S. at 823,115 S. Ct. 2510. There, the Court "found a First
Amendment violation when a public university withheld funding to a student
20
publication because its paper primarily promoted or manifested a particular belief
in or about a deity or an ultimate reality." Id. (internal quotations omitted). The
dissent disagreed, concluding that there was no viewpoint discrimination because
the university limited all religious speech, both theistic and atheistic. See
Rosenberger, 515 U.S. at 831,115 S. Ct. 2510. In rejecting this argument, the
five-justice majority explained:
The dissent's assertion that no viewpoint discrimination
occurs because the Guidelines discriminate against an
entire class of viewpoints reflects an insupportable
assumption that all debate is bipolar and that antireligious
speech is the only response to religious speech. Our
understanding of the complex and multifaceted nature of
public discourse has not embraced such a contrived
description of the marketplace of ideas. If the topic of
debate is, for example, racism, then exclusion of several
views on that problem is just as offensive to the First
Amendment as exclusion ofonly one. It is as objectionable
to exclude both a theistic and an atheistic perspective on the
debate as it is to exclude one, the other, or yet another
political, economic, or social viewpoint.
Arizona Life Coalition, at 971 (quoting Rosenberger, at 831, 115 S. Ct. 2510). The
Ninth Circuit noted that unlike the university's guidelines in Rosenberger, the
Arizona statutes do not expressly prohibit abortion-related speech, but instead open
the license plate forum to "all organizations that serve the community and
contribute to the welfare of others in a nondiscriminatory way." Id., at 971-72,
(citing ARIZ. REv. STAT. ANN. 28-2404(B)). The only justification the
Commission can give for denying Life Coalition's plate application was that it
chose not to enter the Choose Life/Pro-Choice debate, and therefore, the Ninth
Circuit held, it engaged in viewpoint discrimination. Id. (citing Sammartano v.
21
First Judicial Dist. Court, 303 F.3d 959, 971 (9
th
Cir. 2002) ("where the
government is plainly motivated by the nature of the message rather than the
limitations of the forum or a specific risk within that forum, it is regulating a
viewpoint rather than a subject matter")). Moreover, the Ninth Circuit found, the
Commission's concern that other organizations would seek to express opposing
views is also "a clear form of viewpoint discrimination." Id., at 972. The court
further noted that "[r]estrictions based on community standards of decency must be
based on objective criteria set out in advance." Id. (internal citation and quotation
omitted).
In Choose Life Illinois, a non-profit organization, Choose Life Illinois
("CLI"), applied to the Illinois Secretary of State ("the Secretary"), in accordance
with the basic statutory requirements for obtaining a specialty license plate,
seeking issuance of a license plate bearing the words, "Choose Life." See id., 547
F.3d at 857. With "insignificant historical exceptions," each of the sixty specialty
license plates available for purchase in Illinois at that time had its own authorizing
statute. Id. at 856. The Secretary informed CLI that it could not issue a license
plate without approval by the legislature, and thereafter, CLI's attempts for such
approval failed. CLI filed suit arguing, among other things, that the Secretary
and/or the legislature's failure to allow its plate application amounted to viewpoint
discrimination. The district court granted summary judgment for CLI, and on
appeal, the Court of Appeals for the Seventh Circuit reversed.
The Seventh Circuit found that Illinois "excluded the entire subject of
abortion from its specialty-plate program[,]" which "is a content-based but
viewpoint-neutral restriction[,]" distinguishing the Fourth Circuit's holdings in
Sons of Confederate Veterans and Rose as well as the Ninth Circuit's holding in
22
Arizona Life Coalition. Choose Life Illinois. Inc., 547 F.3d at 865 (citing Sons of
Confederate Veterans, 288 F.3d 610; Rose, 361 F.3d 786; Arizona Life Coalition,
515 F.3d 956. In Sons of Confederate Veterans, the Court of Appeals for the
Fourth Circuit found viewpoint discrimination where the Virginia DMV excluded
the Confederate flag from a specialty plate design because it was a "specific
symbol commonly understood to represent a specific viewpoint." Choose Life
Illinois, 547 F.3d at 865, citing Sons of Confederate Veterans, 288 F.3d at 625-26.
In Rose, where the State of South Carolina allowed a specialty plate bearing the
"Choose Life" message but did not offer a license plate with an alternative "pro
choice" message, the Fourth Circuit concluded that the state was engaging in
viewpoint discrimination because it was favoring one viewpoint on the subject of
abortion over any other. Id. (citing Rose, 361 F.3d at 795). The Seventh Circuit
concluded that in contrast to the state action in Sons of Confederate Veterans and
Rose, the State of Illinois engaged in a content based but viewpoint neutral
restriction because it excluded the entire subject of abortion.
The court then went on to explain in some detail its disagreement with the
Ninth Circuit's conclusion in Arizona Life Coalition that the state of Arizona
engaged in viewpoint discrimination. Specifically, the Seventh Circuit stated that
the passage from Rosenberger relied on by the Ninth Circuit actually undermines
that court's conclusion. See Choose Life Illinois, 547 F.3d at 866. According to
the Seventh Circuit
excluding a faith-based publication from a speech forum
because it is faith based is indeed viewpoint discrimination;
where all other perspectives on the issues of the day are
permitted, singling out the religious perspective for
exclusion is discrimination based on viewpoint, not content.
23
In contrast, here (and in [Arizona Life Coalition,] too), the
State has effectively imposed a restriction on access to the
specialty-plate forum based on subject matter: no plates on
the topic of abortion. It has not disfavored any particular
perspective or favored one perspective over another on that
subject; instead, the restriction is viewpoint neutral.
Id. (emphasis in original).
The Seventh Circuit fails to reconcile its conclusion with the Rosenberger
Court's opinion that "exclusion of several views on [an issue] is just as offensive to
the First Amendment as exclusion of only one." Rosenberger, 515 U.S. at 831,
115 S. Ct. at 2510. That is exactly what the Defendants did when they denied
CFF's application for a "Choose Life" custom plate based on a policy to exclude
the entire subject of abortion from New York's custom license plate program. As
the Ninth Circuit concluded in Arizona Life Coalition, in accordance with
Rosenberger, the exclusion of the entire subject of abortion from the forum is not
permissible content based discrimination, but is discrimination based on viewpoint,
which runs afoul of the First Amendment.
9
The remaining issue of whether Defendants' denial ofCFF's plate
9 Notably, the Court of Appeals for the Second Circuit recently relied on Rosenberger in
upport of its conclusion that the State of Vermont's denial of an application for the vanity
icense plate "JN36TN" was impermissible viewpoint discrimination, but emphasized that its
olding was limited to "the context of a ban on religious messages, an area in which the Supreme
ourt's guidance has been both extensive and clear." Byrne, 623 F.3d at 59. The court went on
o explain that "[w]e neither question the state's ability to limit expression in a nonpublic forum
o certain subject matters, nor disturb the prior holding of this Court that Vermont's related ban
n 'scatological subjects' effects such a permissible viewpoint neutral and reasonable
estriction." Id. (citing Perry, 280 F.3d at 170). Here, however, Rosenberger appears to direct
he result, as the court in Arizona Life Coalition held, that the exclusion of viewpoints on an
ntire topic from a forum that, as here, has been opened by the state to non profit organizations
or expression on a range of topics, is impermissible viewpoint discrimination. See Arizona Life
oalition, 515 F.3d at 971-72.
24
application was reasonable "must be assessed in light of the purpose of the forum
and all the surrounding circumstances," Cornelius, 473 U.S. at 809, 105 S. Ct.
3439, and "reflect a legitimate government concern,"..my, 280 F.3d at 169.
Defendants argue that it was reasonable for the DMV to avoid being associated
with one side of the very contentious and politically charged abortion debate, citing
Cornelius for support. In Cornelius, the Court concluded that the federal
government did not violate the First Amendment when it limited participation in
the CFC "to avoid the appearance of political favoritism without regard to the
viewpoint ofthe excluded groups." Id., 473 U.S. at 813, 105 S. Ct. 3439.
Defendants also rely on ..my, for support of their argument that they acted
reasonably. In..my, the Second Circuit found that Vermont's revocation of a
"SHTHPNS" vanity license plate was reasonably related to the State's interest in
not communicating the message that it approves of the public display of
scatological terms on its license plates. Id., 280 F.3d at 169. Moreover,
Defendants argue, their denial of CFF's application did not prevent CFF from
communicating its message in other ways, such as displaying a bumper sticker
with a similar message, as the court found in..my. See id., at 170.
CFF counters that the DMV intentionally opened up the custom license plate
forum to diverse viewpoints and therefore, the denial of its plate application was
unreasonable in light of the purpose of the forum. CFF argues that Cornelius is
clearly distinguishable because there, the federal government excluded all
politically oriented speakers from the CFC and more importantly, the Court there
specifically found that the government did not create the CFC to provide a forum
for expressive activity, unlike here. See Cornelius, 473 U.S. at 805. As for..my,
CFF correctly points out that the court there found that Vermont did not oppose the
25
plaintiffs viewpoint, but instead acted in support of a policy against profane
utterances, which was appropriate under the First Amendment. See ..gry, 280
F.3d at 170.
In light of the purpose of New York's custom plate forum, Defendants'
denial of CFF's plate application was unreasonable. It is undisputed that CFF
complied with the requirements for entry into the program: it is a non-profit
organization that is incorporated in New York State; and it submitted its
application for a "Choose Life" custom plate, including all of the requested
information and documentation in accordance with DMV's requirements. As this
court has found, the sole basis for Defendants' denial of CFF's license plate
application was viewpoint discrimination. Accordingly, the court finds that
Defendants' restriction was both discrimination based on viewpoint and
unreasonable.
While this finding alone is sufficient to grant CFF's motion for summary
judgment and deny Fiala's motion for summary judgment, the court will also
address CFF's additional argument that Defendants' restriction of its plate
application from New York's custom plate program was an unconstitutional
exercise of unbridled discretion to deny its plate application based on viewpoint.
c. Unbridled Discretion
CFF argues that Defendants had unbridled discretion to engage in viewpoint
discrimination, which is an independent ground for its Free Speech claim.
A law or policy permitting communication in a certain
manner for some but not for others raises the specter of
content and viewpoint censorship. This danger is at its
zenith when the determination of who may speak and who
may not is left to the unbridled discretion of a government
26
Case 1:04-cv-00927-I\JPNI-RFT Document 224 Filed 11/08/11 Page 28 of 34
official. Without standards governing the exercise of
discretion, a government official may decide who may
speak and who may not based upon the content of the
speech or viewpoint of the speaker.
Roach v. Stouffer, 560 F.3d 860, 869 (8
th
Cir. 2009) (quoting Lakewood v. Plain
Dealer Publ'g Co., 486 U.S. 750, 763-64, 108 S. Ct. 2138 (1988)). In Roach, the
Court of Appeals for the Eighth Circuit found that the State of Missouri violated
the First Amendment rights of plaintiffs, including the nonprofit organization,
Choose Life of Missouri, Inc., because it gave unbridled discretion to the Joint
Committee on Transportation Oversight ("Joint Committee") to engage in
viewpoint discrimination. There, the Missouri law which authorizes the Joint
Committee to approve or deny specialty license plate applications, provides that
[t]he [Joint Committee] shall also review for approval or
denial all applications for the development of specialty
license plates submitted to it by the department ofrevenue.
The committee shall approve such application by a
unanimous vote. The committee shall not approve any
application ifthe committee receives a signed petition from
five house members or two senators that they are opposed
to the approval of the proposed license plate. The
committee shall notify the director of the department of
revenue upon approval or denial of an application for the
development of a specialty plate.
Id., at 862,869-70 (quoting Mo. REv. STAT. 21.795(6)). The court concluded
that 21.795(6) provides "no standards or guidelines whatsoever to limit the
unbridled discretion of the Joint Committee[, and] [c]onsequently, the Joint
Committee can deny an application for a specialty plate based solely on the
organization's viewpoint."
Likewise, New York enables the Commissioner to issue special number
27
license plates for an additional fee, and to promulgate regulations in relation
thereto. See N.Y. VEH. & TRAF. LAW 404(1). The regulation governing the
Commissioner's issuance of special number plates provides that he or she shall not
issue any special number plate that, among other things, "is, [in his or her
discretion,] obscene, lewd, lascivious, derogatory to a particular ethnic or other
group, or patently offensive." N.Y. COMPo CODES R. & REGs. tit. 15, 16.4
(2001). Otherwise, the procedure for the application for, and issuance of, a custom
license plate in New York is purely within the discretion of the Commissioner and
is not governed by statute or regulation.
It bears repeating that, as the Ninth Circuit noted in Arizona Life Coalition,
"[r]estrictions based on community standards of decency must be based on
objective criteria set out in advance." Id., 515 F.3d at 972 (internal citation and
quotation omitted). No such objective criteria exist in New York. As the court in
Roach concluded regarding the Missouri statute, here New York gives unbridled
discretion to the Commissioner to "decide who may speak and who may not based
upon the content of the speech or viewpoint of the speaker ... [w]ithout standards
governing the exercise of discretion." Lakewood, 486 U.S. at 763-64, 108 S. Ct.
2138. Accordingly, New York has run afoul of the First Amendment by giving the
Commissioner unbridled discretion to engage in viewpoint discrimination. Thus,
CFF prevails on its motion for summary judgment on this independent ground for
its First Amendment claim.
Because CFF prevails on its First Amendment claim, the court need not
address its claims pursuant to the Fourteenth Amendment's Equal Protection and
Due Process Clauses.
Co Qualified Immunity
28
Case 1:04-cv-00927-NPM-RFT Document224 Filed 11/08/11 Page 30 of 34
Finally, Martinez seeks summary judgment as to his affirmative defense of
qualified immunity regarding his denial of CFF's custom plate application.
[W]hen a defendant official invokes qualified immunity
as a defense in order to support a motion for summary
judgment, a court must consider two questions: (1)
whether the evidence, viewed in the light most favorable
to the plaintiff, makes out a violation of a statutory or
constitutional right, and (2) whether that right was clearly
established at the time of the alleged violation.
Tracy, 623 F.3d at 95-96 (citing Gilles v. Repicky, 511 F.3d 239,243-44 (2d
Cir.2007); Saucier v. Katz, 533 U.S. 194,208,121 S. Ct. 2151 (2001) (modified by
Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808 (2009)). To determine if a right
is clearly established, a court evaluates
whether (1) it was defined with reasonable clarity, (2) the
Supreme Court or the Second Circuit has confirmed the
existence ofthe right, and (3) a reasonable defendant would
have understood that his conduct was unlawful. The
question is not what a lawyer would learn or intuit from
researching case law, but what a reasonable person in the
defendant's position should know about the
constitutionality ofthe conduct. Moreover, when faced with
a qualified immunity defense, a court should consider the
specific scope and nature of a defendant's qualified
immunity claim. That is, a determination of whether the
right at issue was clearly established must be undertaken in
light of the specific context of the case, not as a broad
general proposition. Thus, the qualified immunity analysis
must be particularized in the sense that the contours of the
right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.
This is not to say that an official action is protected by
qualified immunity unless the very action in question has
previously been held unlawful; but it is to say that in the
28
light ofpre-existing law the unlawfulness must be apparent.
Doninger v. Niehoff, 642 F.3d 334,345-46 (2d Cir.2011) (citations and quotations
omitted). This inquiry turns on the "objective legal reasonableness of the action,
assessed in light of the legal rules that were clearly established at the time it was
taken." Pearson, 555 U.S. at 244 (quoting Wilson v. Layne, 526 U.S. 603, 614,
119 S. Ct. 1692 (1999) (internal quotation marks omitted)).
Based on the clearly established decisional law of the Supreme Court and the
Second Circuit at the time Martinez acted, see African Trade & Info. Ctr., Inc. v.
Abromaitis, 294 F.3d 355,360 (2d Cir. 2002) (citing Shechter v. Comptroller of
City of New York, 79 F.3d 265,271 (2d Cir.1996)), he argues that it was
objectively reasonable for him to deny CFF's custom plate application. This court
agrees.
Approximately four months prior to CFF's application for a custom license
plate, the Court of Appeals for the Second Circuit issued its decision in ~ ,
wherein it held that the State of Vermont did not engage in viewpoint
discrimination when it revoked a vanity license plate with the letters, "SHTHPNS"
because it is offensive. S e e ~ , 280 F.3d at 164,170. According t o ~ ,
Vermont's policy of excluding scatological terms from its vanity license plates was
both viewpoint neutral and reasonable, and therefore did not violate the plaintiffs
First Amendment right to free speech. See id. at 169-70. Thus, at the time
Martinez denied CFF's plate application, it was clearly established law in this
Circuit that the DMV could deny an application for a special license plate as long
as the decision to do so was reasonable and not based on the viewpoint of the
speaker. Accordingly, Martinez argues, it was objectively reasonable for him to
deny CFF's plate application due to the desire to completely remove the State of
29
Case 1:04-cv-00927-NPM-RFT Document 224 Filed '11/08/11 Page 32 of 34
New York from the abortion debate.
CFF makes several arguments opposing Martinez's motion for summary
judgment in this regard, all of which are based on its conclusion that Martinez's
decision to deny CFF's plate application was viewpoint discrimination. While this
court clearly agrees that Defendants here engaged in viewpoint discrimination, that
is only the first step in analyzing the issue of whether Martinez is entitled to
qualified immunity. Because, in light of the clearly established Second Circuit and
Supreme Court law at the time of the denial ofCFF's plate application, it was
objectively reasonable for Martinez to believe that the denial was a permissible
content-based but viewpoint neutral restriction, he is entitled to qualified
immunity.
CFF argues that the Second Circuit Court of Appeals already decided that
Martinez is not protected by qualified immunity when it dismissed Defendants'
appeal ofthis court's denial of their Rule 12(b)(6) motion to dismiss the complaint
based on qualified immunity grounds. See Children First Found., Inc. v. Martinez,
169 Fed. Appx. 637, 639, 2006 WL 544502, at *1(2d Cir. 2006). To be sure, the
court, c i t i n g ~ , did state that "it is clearly established that, even in a nonpublic
forum, restrictions on speech must be reasonable and viewpoint neutral." Id.
(citing ~ , 280 F.3d at 169). However, the difference between viewpoint and
content restrictions was not clearly established at the time Martinez denied CFF's
plate application. In fact, the Supreme Court has acknowledged that "the
distinction between content and viewpoint discrimination 'is not a precise one.'"
General Media Commc'ns, Inc., 131 F.3d at 281 (quoting Rosenberger, 515 U.S. at
831, 115 S. Ct. 2510). Moreover, this court's decision that Defendants' denial of
CFF's application for a custom licence plate was viewpoint discrimination and not
30
Case 1:04-cv-00927-NPrvI-RFT Document 224 Filed 11/08/11 Page 33 of 34
a content-based but viewpoint neutral restriction, was based on decisional law from
outside of this circuit. Thus, at the time Martinez denied CFF's plate application,
he did so with the reasonable belief, in accordance with the decisional law of the
Second Circuit and Supreme Court, that his denial was a content-based but
viewpoint neutral restriction. Accordingly, Martinez is entitled to qualified
immunity and his motion for summary judgment is likewise granted.
V. Conclusion
After due consideration of the arguments of the parties regarding the
pending motions and in accordance with the foregoing discussion, it is ORDERED
that the motion for summary judgment by defendant, Barbara J. Fiala, in her
official capacity as Commissioner for the New York State Department of Motor
Vehicles, see Dkt. No. 198, is DENIED; and it is further
ORDERED that the motion for summary judgment by defendant Raymond
P. Martinez regarding his affirmative defense of qualified immunity, see Dkt. No.
197, is GRANTED; and it is further
ORDERED that the motion for summary judgment by plaintiff, Children
First Foundation, Inc., see Dkt. No. 203, is GRANTED; and it is further
ORDERED that defendant Barbara J. Fiala, in her official capacity as
Commissioner for the New York State Department of Motor Vehicles, as well as
her agents, employees, officials and any other person acting in concert with her or
on her behalf, shall approve plaintiff, Children First Foundation, Inc.'s preferred
custom plate design application that was submitted prior to the institution of the
moratorium on acceptance of new plate applications; and it is further
ORDERED that execution of Judgment in this action shall be stayed only for
such time as is required for any party to file a timely Notice of Appeal in this
31
action, and should a Notice of Appeal be timely filed, execution of Judgment in
this action shall continue to be stayed until resolution of that appeal.
The Clerk of the Court shall amend the caption in this action to reflect that
Barbara J. Fiala is substituted as a defendant for David. J. Swartz pursuant to Rule
25(d) ofthe Federal Rules of Civil Procedure and to reflect that Raymond P.
Martinez has been terminated as a defendant to this action.
IT IS SO ORDERED.
DATED: November 8,2011
Syracuse, New York
Neal P. MeCum
Senior U.S. District Judge
32
JUDGMENT IN A CIVIL CASE
CHILDREN FIRST FOUNDATION, INC.
Plaintiff
vs.
CASE NUMBER: 1:04-CV-927
(NPMfRFT)
RAYMOND P. MARTINEZ, individually,
and BARBAR j. FIALA, in her official
capacity as Commissioner of the New
York State Department of Motor Vehicles
Defendants
Decision by Court. This action came to hearing before the Court. The issues have been heard
and a decision has been rendered. Plaintiff Elizabth Rex having been terminated from this action
by Order of Magistrate Judge Randolph F. Treece, issued August 6,2007; and defendants Jill A.
Dunn, David A. Paterson, George E. Pataki, and Neal Schoen having been terminated from this
action by stipulation of the parties on April 24, 2009.
IT IS ORDERED AND ADJUDGED that the motion for summary judgment by defendant,
Barbara J. Fiala, in her official capacity as Commissioner for the New York State Department of
Motor Vehicles is DENIED; the motion for summary judgment by defendant Raymond P.
Martinez regarding his affirmative defense of qualified immunity, is GRANTED; and the motion
for summary judgment by plaintiff, Children First Foundation, Inc. is GRANTED.
IT IS FURTHER ORDERED AND ADJUDGED that defendant Barbara J. Fiala, in her
official capacity as Commissioner for the New York State Department of Motor Vehicles, as
well as her agents, employees, officials and any other person acting in concert with her or on her
behalf, shall approve plaintiff, Children Pirst Foundation, Inc. 's preferred custom plate design
application that was submitted prior to the institution of the moratorium on acceptance of new
plate applications
All of the above pursuant to the Memorandum-Decision and Order of the Honorable Senior
United States District Judge Neal P. MeCum, dated the 8
th
day of November, 2011.
DATED: November 9,2011
sl Melissa Ennis
Melissa Ennis, Deputy Clerk
Children First FoundatioD, v. Martinez et ano.
Docket No. 11-5199
ADDENDUMB
1. Does defendants' denial of plaintiffs cllstom plate application violate the First
Amendment?
Legal standard of review:
de novo review
2. Do plaintiffs due process and equal protection claims fail as a matter of law?
de novo review
Legal standard of review:
Conclusions of law, including those involving constitutional
questions, are reviewed de novo. See, e.g., United States v.
Fell, 531 F.3d' 197 (2008).

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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

CIVIL APPEAL PRE-ARGUMENT STATEMENT (FORM C)

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