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LOCAL 32B-32J

April 21, 1998

Local 32B-32J, Service Employees International Union, AFL-CIO, for and on behalf of its members; and Local 2, Service Employees International Union, AFL-CIO, for and on behalf of its members, Plaintiffs, against Port Authority of New York and New Jersey; The Port Authority of New York and New Jersey Police; Frank B. Fox, in his capacity as Acting Superintendent of Police of the Port Authority of New York and New Jersey; Gene Ceccarelli, in his capacity as Captain of the Port Authority of New York and New Jersey Police; Charles Maikish, in his capacity as Director & Chief Executive Officer of the World Trade Center; Edwin Monteverde, in his capacity as General Manager, Tenant Services, World Trade Center; Thomas Rush, in his capacity as Manager of the World Trade Center; Ken Philmus, in his capacity as Manager of the Port Authority Bus Terminal, Barbara Ann Davis in her capacity as Administrator of the Port Authority Bus Terminal; and Pearline Washington, in her capacity as Administrator of the Port Authority Bus Terminal, Defendants.


The opinion of the court was delivered by: SCHEINDLIN

OPINION AND ORDER

 SHIRA A. SCHEINDLIN, U.S.D.J.:

 Plaintiffs Local 32B-32J, Service Employees International Union, AFL-CIO ("Local 32B") and Local 2, Service Employees International Union, AFL-CIO ("Local 2") filed a complaint on February 28, 1996 alleging that the defendants (hereinafter referred to collectively as "the Port Authority") violated their First Amendment rights by promulgating and enforcing certain rules regulating expressive activity at the World Trade Center ("WTC") and the Port Authority Bus Terminal ("Bus Terminal"). A trial was held on November 12-21, 1997. On November 24, 1997, the jury reached a verdict, finding for plaintiffs on the issue of liability, but awarding only nominal damages. Based on largely the same evidence that was presented to the jury, *fn1" I now address plaintiffs' request for permanent injunctive relief.

 I. Collateral Estoppel Effect of the Jury Trial

 A preliminary issue is whether the court is bound by the findings of fact made by the jury. When an action contains both legal and equitable claims, a court that sits in equity following a jury trial is "not free to reject the jury's determination of facts essential to both the legal and equitable claims," due to the collateral estoppel effect of the jury verdict. Guzman v. Bevona, 90 F.3d 641, 647 (2d Cir. 1996). However, a jury's finding of fact is not "essential" within the meaning of this rule unless the court can determine with confidence that the verdict actually relied on it. Thus, a verdict that could have been premised on any one of a number of different factual determinations has no estoppel effect. See Jim Beam Brands Co. v. Beamish & Crawford Ltd., 937 F.2d 729, 734 (2d Cir. 1991) ("If an issue was not actually decided in a prior proceeding, or if its decision was not necessary to the judgment, its litigation in a subsequent proceeding is not barred by collateral estoppel."); Tucker v. Arthur Andersen & Co., 646 F.2d 721, 728 (2d Cir. 1981) (general jury verdict for defendant did not preclude relitigation of an issue that may or may not have been decided by the jury); In re Air Disaster at Lockerbie, Scotland on December 21, 1988, 811 F. Supp. 89, 92 (E.D.N.Y. 1993).

 Here, the jury found that the Port Authority had violated the plaintiffs' First Amendment rights at both the WTC and the Bus Terminal, see Trial transcript ("Tr.") at 793, having been instructed that such a violation could be found if either the Port Authority's written rules or its informal practices regarding expressive activity exceeded constitutional limitations. See Tr. at 748-50. The verdict did not specify whether it was based upon the written rules, the unwritten practices, or both. See Tr. at 793. Because it therefore cannot be determined what acts the jury found to be violative of the Constitution, different findings of fact are not precluded by collateral estoppel. In any event, as the next section will show, the court's findings are entirely consistent with those of the jury.

 II. Findings of Fact

 A. Introduction

 Local 32B and Local 2 are labor organizations that represent building service and window cleaning employees in the New York City metropolitan area. See Joint Pretrial Order, Undisputed Facts ("Undisputed Facts") at PP 1-2. The Port Authority is a bi-state agency created in 1921 by a compact between the States of New York and New Jersey. The Port Authority operates a variety of facilities in the New York area, including the WTC and the Bus Terminal. See id. at P 3.

 Plaintiffs began strikes at both sites in January, 1996. See Tr. at 45, 81-82. *fn2" During these strikes, the Port Authority failed to apply its regulations regarding free speech activity evenhandedly: As many of the Port Authority's witnesses admitted, plaintiffs were forced to abide by rules from which other groups were exempted. See, e.g., Tr. at 140, 380-88, 400-01, 413. The Port Authority has recently replaced the rules that were in effect when these events occurred. This opinion addresses only its new guidelines. Plaintiffs' demonstrations are ongoing. See Tr. at 161, 523.

 B. The WTC Guidelines

 The new WTC rules define "expressive activity" as the "continuous display of a sign to passersby, [the] continuous distribution of literature to passersby, [or] continuous speech to passersby." Defendants' Ex. E at P 1(a). Expressive activity is prohibited at the WTC except in specified parts of its "Concourse" and "Plaza" areas and on its "perimeter sidewalks." Id. at P 1(b).

 Thirteen spots are designated for expressive activity in the Concourse area. Eleven of these accommodate only one speaker. See id. at unnumbered page 6. According to the rules as written, the remaining two accommodate up to five people; at trial, however, the WTC's General Manager for Tenants' Services admitted that they are no longer available. See Trial Transcript ("Tr.") at 488. Four spots are available in the Plaza area, each accommodating one person. See Defendants' Ex. E at unnumbered page 5. No limit is given as to the number of people who may engage in expressive activity on the perimeter sidewalks.

 To obtain the right to use one of the designated areas in the Plaza or Concourse areas, a would-be speaker must submit a written request to the WTC's Assistant Director during business hours. This request must be made no later than 36 hours in advance of the proposed use. The request must identify the site and time requested, the type of activity to be conducted, and the name and address of the person making the request. A request will be denied only if it is incomplete, the area requested is unavailable, the proposed activity will violate other provisions of the rules, or if the Assistant Director determines that there exists

 
an emergency such as a snowstorm, fire, accident, power failure, transportation delay, or other condition such that the conduct of permitted activities would cause a danger to persons or property or unreasonably interfere with pedestrian or vehicular traffic flow, the formation or progress of any line of persons waiting for service, such as a line at a sales, service or information kiosk, bus stop, taxi loading area, or automatic teller machine, or any construction or maintenance activity.

 Id. at PP 3, 4(f). A space is considered unavailable for these purposes when it is occupied by a structure erected by the ...


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