(Reuters) - If you’ve heard of it at all, you probably know the Town of Oyster Bay, Long Island, from a throwaway line in Billy Joel’s "Ballad of Billy the Kid." But it also happens to be where I live. And as an Oyster Bay taxpayer I was, of course, interested in a decision Tuesday from the 2nd U.S. Circuit Court of Appeals, which affirmed the unconstitutionality of a town ordinance prohibiting day laborers from gathering to solicit jobs. (The ordinance wasn’t quite so naked in its stated intent, but the 2nd Circuit found its “actual impetus” was to regulate the workers, many of whom are Spanish-speaking immigrants.)
It turns out that the 2nd Circuit’s opinion is noteworthy not just for those who care about civil rights, the First Amendment or Long Island immigration politics. The case, as I’ll explain, hinged on the constitutional standing of an immigrant advocacy group called The Workplace Project, which is based in a different Long Island town.
The 2nd Circuit divided 2-1 on Workplace’s right to challenge the Oyster Bay ordinance, exposing an intra-court division on the 2nd Circuit’s apparently unique standard for representational standing. And according to the dissenting judge in the Oyster Bay case, the appeals court has twisted itself into such knots to justify its precedent that its holdings have compromised constitutional limits on who is permitted to sue in federal court.
The ordinance at issue in the Oyster Bay case was enacted in 2009, after residents complained about traffic delays and unsightliness from day laborers gathering along a particular stretch of road to be picked up by contractors. The law barred people standing on or adjacent to a public right of way from stopping traffic to solicit employment.
Two groups sued to strike down the law, arguing that the ordinance, as a content-based restriction on commercial speech, is not narrowly tailored to serve the town’s interest in traffic safety. One of the groups, the Centro de la Comunidad Hispanica de Locust Valley, was nominally based in the Town of Oyster Bay but had no charter, bylaws, formal membership or bank account. The other, The Workplace Project, was a more formally organized group, with longstanding members and a clear mission, but its connections to Oyster Bay were rather tenuous. Workplace is based in a different Long Island town, albeit in the same county, and did not offer clear evidence that its organizers spent much time among the Oyster Bay day laborers.
In the 2nd Circuit, organizations must show that they – and not just their members – have standing to sue for civil rights violations. It’s not enough, in other words, for Centro del las Comunidad or the Workplace Project to show that day laborers who belong to their groups face imminent injury from the Oyster Bay ordinance. They have to prove that the groups themselves are at risk of concrete harm.
That standard, which dates back to the 2nd Circuit’s 1973 ruling in a class action by welfare recipients against the U.S. Department of Health, Education and Welfare, Aguayo v. Richardson, is unique among the federal circuits, according to Judge Dennis Jacobs’ dissent in the Oyster Bay case. After the U.S. Supreme Court said in dicta in 1975’s Warth v. Seldin that an association may have standing to sue on behalf of its members even if it has not been injured, other circuits have expressly held that organizations can assert civil rights claims on behalf of their members, Jacobs said.
The majority in the Oyster Bay case - Judge Barrington Parker of the 2nd Circuit and Judge Jane Restani of the U.S. Court of International Trade, sitting by designation – concluded that The Workplace Project was itself at risk of imminent, concrete injury from the anti-day-laborer ordinance. (They did not address Centro’s standing because they didn’t need to once they found Workplace had a right to sue.) According to the majority, Workplace established an injury-in-fact under the Supreme Court’s standard for nonprofits because it showed that it spent money to combat activity that threatened its core mission of organizing day laborers.
Although Oyster Bay has not actually attempted to enforce the ordinance and no one has been arrested for violating it, the 2nd Circuit majority said Workplace proved “substantially more than an imminent intention to engage in the activity that would subject it to the injuries it asserted.” In particular, the majority said, the group “has actively worked in Oyster Bay and actively campaigned against the ordinance on behalf of its members.” That’s enough, the 2nd Circuit found, to meet the constitutional standard as the 2nd Circuit has interpreted it for organizations.
Judge Jacobs called the majority’s reasoning a contortion of Article III requirements. “The supposed interference with the organizational mission of serving day laborers is conjectural, vague and generalized,” he said. “Worse, if it were sufficient, a pop-up organization could gin up standing by alleging a mission to oppose any law it wished to challenge.”
The problem, he said, is the 2nd Circuit’s insistence that organizations must prove harm to themselves to establish standing. The court’s holding in the Aguayo case in 1973 “may have outlived its usefulness,” Judge Jacobs wrote. But he said it’s no use hoping for the en banc court to bring the 2nd Circuit into line with other federal appellate courts, “given the desuetude of our in banc practice.” (The 2nd Circuit uses the phrase “in banc,” rather than “en banc,” to refer to all-court arguments it almost never hears.)
In the meantime, Judge Jacobs warned, “Our indulgence of increasingly tenuous and pretextual claims of injury to organizations themselves now threatens to swallow Article III limitations: The majority opinion holds, in essence, that an organization can achieve standing to challenge a law relevant to its mission by ‘allocating resources’ to learning about the law and attending a protest rally.”
Judge Jacobs’ discussion of the flaws in the majority’s standing analysis is pretty compelling. Don’t get me wrong: I agree with the majority that the Oyster Bay ordinance is a violation of the First Amendment, though it seems more clearly to compromise the rights of pedestrians subject to the law than the groups advocating against it. I’m glad the 2nd Circuit knocked the ordinance off of the books. But Article III standing is also a constitutional concern.
I called the Town of Oyster Bay’s counsel, Jonathan Sinnreich of Sinnreich Kosakoff & Messina, but didn’t hear back. Centro and The Workplace had counsel from the New York Civil Liberties Union Foundation and Latino Justice PRLDEF.