The City responds that its consistent administrative construction and well-established practice cures any problems. For example, the City argues that the NYPD does respond to applicants in a reasonable time after a permit application is submitted, and that this response is required by the Admin. Guide P. 321-14 which states that the applicant for a disapproved permit must be contacted and that the Police Department is to "initiate discussion, and seek to accommodate the applicant with an alternate time or location for the parade, if feasible." (Pl.'s Ex. 5, P 13; Defs.' Ex. 1, P 13.) This could only be done if the applicants received sufficient advance notice of disapproval. The City also argues that the reasons for the denial of a permit are stated on the endorsement to the parade permit application and is a Departmental record. In this case the endorsements indicated that the reason for the denial of the permit was a conflict with a previously scheduled event. Moreover, the City argues that under the Administrative Code it must grant a permit unless, after investigation, the police commissioner concludes that the parade will be "disorderly in character or tend to disturb the public peace." Admin. Code. § 10-110(a)(1). The City argues that this policy is consistently administered to deny permits in only limited circumstances based on objective factors such as traffic and safety problems, and whether two parades will conflict in time and place.
The issue of the administration of the statute is one that must await full development of the factual record. There was only a limited opportunity to develop the testimony with respect to a well-established practice, if any, because of the time constraints attendent to the motion for a preliminary injunction. It cannot be said at this time that ILGO has established a clear likelihood of success on this claim.
There are two additional reasons that ILGO has not demonstrated a clear likelihood of success on its facial challenge. First, the City has asserted both re judicata and collateral estoppel as bars to ILGO's facial challenge, arguing that this issue was fully litigated and decided before Judge Keenan. Second, even if ILGO were to overcome the preclusive effect of last year's decision, it would still not be entitled to preliminary injunctive relief in light of the fact that the regulation of ILGO's speech in this case was a reasonable time, place, and manner restriction that the Court would not disturb.
The City's collateral estoppel and res judicata arguments with respect to ILGO's facial challenge to § 10-110 are persuasive given the record at this time. The City argues that ILGO presented its facial challenge to § 10-110 in its action before Judge Keenan, and his disposition of the action both actually and necessarily decided the issue of the permitting ordinance's facial validity against ILGO.
As described above, collateral estoppel bars relitigation of issues fully and fairly litigated in a prior action that were necessarily decided. Res judicata, on the other hand, bars subsequent litigation of "any ground of recovery that was available in toe prior action, whether or not it was actually litigated or determined." Balderman, 870 F.2d at 62. See Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 n.5 1977, 58 L. Ed. 2d 552, 99 S. Ct. 645) (describing standard for both res judicata and collateral estoppel). In the present case, both doctrines may bar ILGO's challenge to the permitting ordinance for overbreadth.
In 1995, ILGO began its litigation against the City by bringing a Petition for relief under Article 78 of the New York Civ. Prac. L. & R. That petition, brought by order to show cause, sought to compel the NYPD to respond to ILGO's permit application, enjoin the NYPD from denying ILGO's parade permit, and permanently enjoin the NYPD from denying ILGO such a permit in the future. (See Affidavit of Virginia Waters, sworn Mar. 7, 1996, Ex. 5.) The City removed the action to the United States District Court where it came before Judge Keenan. The petition was deemed a Complaint with a motion for a preliminary injunction (See Waters Aff., Ex. T at 5.) In papers submitted to Judge Keenan in support of the motion for a preliminary injunction, ILGO plainly challenged the facial validity of § 10-110:
The Defendants have shown that they have the unbridled discretion to allow or disallow a march to take place in spite of the regulations set forth in this section of the Administrative Code. This type of unbridled discretion is a prior restraint, and may result in censorship, [City of Lakewood] One cannot presume that such unbridled discretion will be exercised in a legal manner . . . . The record reflects that the NYPD has ignored this section in the past. . . . Accordingly, that section of the Administrative Code which grants the Defendants the power to deny the exercise of First Amendment rights must be found to be unconstitutional as a matter of law both in general and in its application to the matter at bar.
(Waters Aff., Ex. Q at 14.)
In his decision, Judge Keenan set forth the permitting ordinance in full and held that the City's denial of ILGO's 1995 permit application pursuant to § 10-110 was a constitutional restriction of ILGO's First Amendment rights. Judge Keenan denied ILGO's motion for a preliminary injunction and dismissed the Complaint. See ILGO 1995, 882 F. Supp. at 321. After the Court of Appeals affirmed the denial of preliminary relief, ILGO 1995, 52 F.3d 311 (2d Cir. 1995), a judgment was entered dismissing ILGO's complaint. (See Waters Aff. Ex. W.) In light of ILGO's presentation of the challenge to the ordinance, and the necessity that the permitting ordinance be valid in order for a valid time, place and manner restriction to be imposed under its authority, the City's argument that Judge Keenan necessarily decided the issue is a strong one.
At least as strong is the City's argument that res judicata bars ILGO's challenge to the overbreadth of § 10-110. ILGO argues that its facial challenge in this action is based on the City's denial of its parade permit application for 1996. But unlike the as-applied challenge relating to the 1996 permit, the facial challenge is no different today than it was when ILGO challenged the 1995 permit process. The material changes in traffic conditions or time for starting the ILGO protest parade are not relevant to the issue of whether § 10-110, the Admin. Guide P. 321-14, and the NYPD's past practices comport with the requirements of the First Amendment--that issue remains on the same legal footing as it would have had during the 1995 lawsuit. Moreover, it is well-established that a plaintiff need not be rejected for a permit or even apply for one to challenge a permitting scheme as overbroad. See City of Lakewood, 486 U.S. at 755-56 ("Our cases have long held that when a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license."); Freedman v. Maryland, 380 U.S. 51, 56, 13 L. Ed. 2d 649, 85 S. Ct. 734 (1965) ("It is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute, and whether or not he applied for a license."). Consequently, there was no need for ILGO to apply for a 1996 parade permit to challenge Administrative Code § 10-110 as unconstitutional on the basis of unfettered discretion. That claim should have been litigated fully in the action before Judge Keenan, and res judicata would bar ILGO from asserting it now. See Balderman, 870 F.2d at 62 "Res judicata . . . prevents the subsequent litigation of any ground of recovery that was available in the prior action whether or not it was actually litigated or determined.")
The strength of the City's preclusion arguments effectively undermines ILGO's effort to demonstrate a likelihood of success on the merits of its facial challenge to the New York City permitting scheme. Accordingly, ILGO has not satisfied the standard required to warrant a preliminary injunction based on its claim that § 10-110 is unconstitutionally overbroad.
Even if ILGO had demonstrated a clear or substantial likelihood of success on the merits of its overbreadth claim, or indeed any likelihood of success, there is an additional obstacle to injunctive relief. Having already found that the denial of ILGO's permit application was itself a reasonable time, place, and manner restriction in the circumstances of the 1996 St. Patrick's Day Parade, this Court would not simply declare the, permitting scheme unconstitutionally overboard and grant an injunction requiring that ILGO's permit be granted. Rather, this curt would follow the approach indicated by the Court of Appeals for the Second Circuit in Olivieri v. Ward, 801 F.2d 602 (2d Cir. 1986). The Court of Appeals explained that:
Ordinarily, a court would simply rule on the constitutional validity of the restraints imposed and refrain from devising its own plan. Yet here time constraints forced the district court--and this Court, too--to choose between striking down defendants' [restriction] or deferring to government imposed limitations on First Amendment rights. Neither alternative was desirable: to choose the former risks ignoring public safety concerns because demonstrators and counterdemonstrators would at the same time occupy the [forum]; by choosing the latter, a court abdicates its independent responsibility to examine the constitutionality of First Amendment restrictions--it simply adopts them. The scheme devised by the district court steered a middle course between these extremes--limiting plaintiff's members, yet upholding the exercise of their communicative rights. Obviously under such circumstances courts must and do have the power to rule in this fashion.