Legislator Jim Maisano is serving his 8th term on the Westchester Board of Legislators and represents District 11, which includes half of New Rochelle and all of Pelham. Is this email not displaying correctly?
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Dear Friends:
You may have heard that the Board of Legislators is voting on a law this Monday night regulating protest activities outside of clinics that provide abortion and reproductive health services. Despite the fact that federal and state laws already exist regulating this conduct, a few legislators are pushing this county law. If we are to pass such a law, it must properly balance the constitutional legal precedents of freedom of speech for protestors and right to abortion for women. While it is unfortunate that a few legislators plunged our legislature into controversial national issues instead of focusing on the important county issues before us, I reviewed this law as fairly, independently and objectively as possible and as an attorney with twenty years of experience. After considering the revelent legal issues, I have decided that I cannot support this law as drafted. Below, you will find the detailed legal memo I forwarded to my fellow legislators explaining the reasons for my vote. Whether you agree or disagree with me on this issue, I thought you might want to better understand my rationale for voting no on this law.
Jim Maisano
County Legislator
(914) 995-2826
CtyLegJimMaisano@gmail.com
MEMORANDUM
Date: May 4, 2012
From: County Legislator Jim Maisano
To: Westchester County Legislators
Re: Legal Concerns on Reproductive Health Care Facilities Access Act
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I wish to advise my colleagues that I cannot support the current draft of the “Reproductive Health Care Facilities Access Act” being voted on this Monday, May 7. I waited to make my decision until after Monday’s public hearing, because as a member of the legislation committee I was denied the opportunity to review any testimony or evidence from the proponents and opponents of this law at the committee level. Unfortunately, this law was forced out of the legislation committee on March 26, 2012, without any public comment, despite my request (along with other legislators) for two additional meetings to hear from the proponents and opponents. Here are my concerns about the current draft:
1) Sec. 425.51 (Civil Cause of Action) creates a free speech chilling effect.
This section can be used by a plaintiff as a sword to chill free speech by protesters at clinics, which was pointed out by several speakers at Monday’s public hearing. As I have stated in the legislation committee on several occasions, I am reluctant to support a private right of action in any proposed county law that does not allow a judge to grant attorney fees and costs to the prevailing party. This law makes clear that only the plaintiff can seek attorney fees and costs. I also cannot support granting a private right of action to an employee or volunteer, since they do not have the appropriate standing as an aggrieved party.
This law presents a troubling scenario: a “volunteer” (no definition in law) can sue protesters for injunctive relief, even though they may not have been violating the law (by bringing a frivolous case). This volunteer may just want to annoy them or stop them from coming back to peacefully exercise First Amendment rights outside the clinic. Eventually, the court will toss out the case for lack of evidence, but the volunteer can still seek attorney fees and costs, even in defeat (although I recognize that it is doubtful that a judge would grant them to a losing party). Meanwhile, the defendants still must pay their own lawyers to get the case dismissed and are granted no opportunity to seek attorney fees and costs, despite the fact that they were forced by our law to contest such a frivolous case. The legal fees payable by the protesters could be substantial. If this law is passed, I expect that some protesters will stop appearing at clinics and forgo exercising their constitutional rights because the private right of action is badly drafted, open to abuse by plaintiffs and unfair to victorious defendants. This law has an unacceptable potential to impermissibly chill freedom of speech.
I note that the State of New York chose not to include any right of private action in their clinic access law, and I believe our Board should consider making the same decision in light of the troubling issues for free speech that this section raises.
2) No satisfactory record has been established to support this law, and in particular, to modify the intent requirement in existing law.
One rationale I have been told for the adoption of this law is that the existing federal and state laws are difficult to enforce. And yet, no prosecutor or law enforcement official has come forward at any stage of our review, either this or last session, to confirm this point. We have been told by representatives of the clinics that this change is necessary, but I maintain that our Board should require independent evidence from the prosecutors and law enforcement officials responsible for enforcing this law before passing legislation to modify existing federal and state criminal statutes.
I must point out that intent is a critical component of the criminal justice process, and as such, our Board should tread carefully when modifying the intent requirement that is set forth in both federal and state laws governing clinic access. For centuries, American and English jurisprudence have required that criminal statutes include intent as an essential element of a crime under the doctrine of “Mens Rea,” a Latin term that means “guilty mind.” The general rule is that criminal liability does not attach to a person who acted without mental fault. There was little if any discussion of this critically important legal precedent at any phase of our Board’s review of this law over the past two sessions, and this is a serious omission in our Board’s record.
Further, supporters of this law have failed to present sufficient evidence that protesters are currently violating the existing federal and state laws, much less that there is insufficient enforcement of such laws, thereby triggering a need for the passage of a county law. This is an additional flaw in our record, which presents additional concerns for the legality of this law should it become the subject of a constitutional challenge under First Amendment grounds.
Lastly, a proponent of passing this law stated at the legislation committee on March 26 that we did not need further committee review because of the extensive review conducted last year. Upon reflection, this argument is legally incorrect. The current law was a new piece of legislation introduced in 2012 for this current session (2012-2013), and the March 26 meeting was the first and only official review of this law. Last year’s review was conducted for a different law during a different legislative session (2010-2011). No part of last year’s review can be legally considered part of the review for the current law. Also, three members of the legislation committee were not members of our legislature last year and were not present for that review, and they remain entitled to a full committee review of this legislation prior to any vote being conducted.
3) This law could lose a challenge on state preemption grounds.
While I recognize this issue is debatable, I still believe it is quite possible that a legal challenge to this law on preemption will be successful. When the State of New York, which is responsible for passing penal laws to address crimes in this state, passed its criminal statute addressing protester activities at clinics where abortions are performed, I believe this is state action on a penal law where the state “traditionally occupies the field.” Therefore, no local or county government can pass an additional law that modifies the state clinic access law. And the argument that this law is not preempted because the City of New York has passed a very similar law is not persuasive because that law has not yet faced any court challenge. If we pass the pending law, our county should expect such a challenge.
4) Potential liability for churches has not been evaluated.
There was testimony at the public hearing that the joint and several liability section of this law (Section 425.71) could allow a church to be sued in a private right action if the church was sending protesters to a particular clinic. There was no discussion of this issue at any phase of the review of this law (last year or this year), and we should not pass this law until a substantive legal review of this concern is conducted.
5) Section 425.31(a)(2) & (b)(3) may be found to be impermissibly vague on a First Amendment challenge.
I believe our Board needs to review the First Amendment law in greater detail relating to two parts of Section 425.31. In (a)(2), the concept of “reasonable fear of physical harm, or attempt to do the same” could be viewed very differently by different people. It is certainly possible that a volunteer or patient at a clinic could feel that particular behavior outside the clinic places them in reasonable fear of physical harm, even when the protestor’s actions fall within legally accepted First Amendment protected areas. For (b)(3), when this section is used for a criminal prosecution or as the basis for a civil action, I believe the concept of “knowingly interfere with the operation of a reproductive health care facility” could be viewed in an expansive way by law enforcement or plaintiffs to include First Amendment protected speech or conduct. The Board should seek to modify these two areas of Section 425.31 to avoid any vagueness concerns. If we are to regulate the conduct outside of clinics with a county law, we must do so in the least restrictive way possible from a constitutional perspective. Courts historically view statutes that target only one particular type of speech with great suspicion, and because of this reality, we must be very careful that any law we pass avoids any hint of vagueness.
LINKS:
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Above these links is a photo of the Westchester County Office Building in White Plains – the home of the Board of Legislators. If you click on the photo, you will find a brief history of the Board of Legislators.
County Legislator Jim Maisano serves as the Republican Minority Leader on the Westchester County Board of Legislators for the 2012-2013 term and has served in this position since 2010. As Minority Leader, Jim is committed to working in an independent and bipartisan manner with his colleagues on the Board of Legislators and the County Executive. He is greatly honored to represent the people of New Rochelle and Pelham. Jim is committed to playing a leadership role in bringing real change and reform to Westchester, and he will continue his advocacy for fiscal responsibility to control property taxes, protection of the quality of life in our neighborhoods and preservation of our environment. (Click on photo above for Jim’s full bio).
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To learn more about the Westchester County Board of Legislators, visit the website:
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Call Jim at: 914-995-2826
Bazzo 05/07/12
