checklist for determining the classification of and constitutional standards of review for traditional, designated, limited, and non-public forums for free speech purposes under the First Amendment.
Practical Law Government Practice
Determine the Forum
Gather information and context on the property at issue to determine whether the forum is:
An open public forum where content-based limitations on speech are almost always unconstitutional. Open public forums include:
traditional public forums; and
designated public forums.
A limited public forum or non-public forum where reasonable content-based limitations on speech are generally constitutional.
Traditional public forums are those portions of public property traditionally open for public:
Assembly and expression.
Protest.
Solicitation.
Debate.
Certain types of public property are almost always deemed traditional public forums, including:
Streets.
Sidewalks.
Parks.
Town squares.
Identify Designated Public Forums
Designated public forums are those portions of government property:
Intentionally opened by the government for open public expressive activity and discourse.
Not otherwise traditionally open for expressive conduct. Once the property is designated as a public forum, it is treated identically to a traditional public forum. However, the government is not required to indefinitely retain the open character of the forum.
Examples of designated public forums include:
Free speech zones that provide protestors a place to assemble on government property that is not otherwise open for expressive conduct.
Lampposts on which the public is allowed to place signs.
Identify Limited Public Forums
Limited public forums are a subclassification of designated public forums that the government specifically opens for:
Use by only certain groups.
The discussion of only certain subjects or genres. The government may impose blanket restrictions on the discussion of other genres that are outside the scope of the limited public forum’s purpose. However, if the government’s custom or actual practice allows indiscriminate use of or unfettered access to a forum that was previously opened as a limited public forum, courts are unlikely to uphold the original limitations of the forum.
A specific manner of communication.
Examples of limited public forums have included:
Theaters.
University meeting rooms opened for student groups.
School board meetings.
Subway platforms opened for charitable solicitations.
Public libraries.
Identify Non-Public Forums
Non-public forums are government properties not traditionally used or designated for use as a forum for expressive activity. In non-public forums, the government typically either:
Limits all private speech.
Selectively allows certain speech for proprietary purposes, such as generating revenue.
Examples of non-public forums include:
Military bases.
Proprietary moneymaking ventures, such as golf courses and racetracks.
Jails.
Police and fire stations.
Public schools.
Polling stations.
Courthouse lobbies and hallways.
Hospitals and nursing homes.
Municipal websites.
The interior of government office buildings.
Determine the Applicable Standard of Review
Understand that the standard of review differs based on the type of forum.
Apply the Standard of Review for Traditional and Designated Public Forums
In traditional and designated public forums, governmental limitations on speech receive strict scrutiny review unless they are content-neutral time, place, or manner restrictions. This means that:
Content-based restrictions are presumed unconstitutional unless the government can prove that the policy is necessary to serve a compelling state interest and narrowly tailored to achieve that end (strict scrutiny). A regulation is not narrowly tailored if a less restrictive alternative serves the government’s purpose.
Content-neutral restrictions on speech are reviewed under intermediate scrutiny, which is easier to satisfy than strict scrutiny. Reasonable, content-neutral time, place, or manner regulations are permissible in traditional and designated public forums.
Apply the Standard of Review for Limited Public Forums and Non-Public Forums
Governmental regulations of speech in limited public forums and non-public forums:
Must be reasonable in light of the purpose of the forum.
Must be viewpoint neutral.
Must not selectively deny access for speech in the genre or subject specifically allowed in a limited public forum. The regulations otherwise do not have to be content neutral.
Should convey a clear intent that the government is only opening the property as a limited public forum or non-public forum.
Should employ selective access policies on an individual, non-ministerial basis.
May allow for the closure of the forum at any time.
Related Content on Practical Law
Free Speech Limitations on Government Regulation: Overview
Stare Decisis, Precedent and Dicta By Joel R. Brandes Lawyers and judges regularly treat dicta like a case holding. 1
In this article we attempt to distinguish a holding which is precedent from dicta. “Stare decisis et non quieta movere” means to stand by things decided and not to disturb settled points.2 The doctrine of stare decisis provides that once a court has decided a legal issue, subsequent cases presenting similar facts should be decided in conformity with the earlier decision. 3 Stare decisis is the doctrine of precedent, the “rule that precedents must be followed when similar circumstances arise. “4
Stare Decisis requires that the decisions of the Court of Appeals which have not been invalidated by changes in statute, decisional law, or constitutional requirements must be followed by all lower appellate courts, such as the appellate division and the appellate term,5 and by all courts of original jurisdiction. 6 The doctrine of stare decisis requires trial courts in one department to follow precedents set by the Appellate Division of another department until the Court of Appeals or the Appellate Division in that Department pronounces a contrary rule. These considerations do not apply to the Appellate Division. While an Appellate Division should accept the decisions of sister departments as persuasive it is free to reach a contrary result.7 Trial courts within a Department must follow the determination of the Appellate Division in another Department until such time as the Appellate Division of their own Department or the Court of Appeals passes on the question.
Where a question has not yet been decided by an Appellate Division, inferior courts in that Department must follow the determinations of the Appellate Division in any other Department until such time as their own Appellate Division or the Court of Appeals passes upon the question.8 Where there is no applicable decision from the Court of Appeals or from the Appellate Division in the trial court’s Department and the decisions from other Appellate Divisions are conflicting, the trial court is left to fashion its own decision, giving appropriate weight and consideration to the views expressed by the Justices of the Appellate Divisions and, where statutory interpretation is involved, developing a view which is consistent with the overall objective of the statute.9 A judgment of a trial court will not receive stare decisis treatment by an appellate court.10
Findings are a determination by a judge, or jury, of a fact supported by the evidence in the record.11 A holding is a court’s determination of a matter of law pivotal to its decision; a principle drawn from a decision. It is also a ruling on evidence or other questions presented at trial.12 A precedent is a holding that must be followed when similar circumstances arise. 13
Dicta are opinions of a judge which do not embody the determination of the court; opinions which are not on the point in question. 14 Statements made that are not essential to a decision on the questions presented, are the dicta, and not the decision of the court. A judicial opinion “is only binding so far as it is relevant; and, when it wanders from the point at issue, it no longer has force as an official utterance.” 15
In Matter of Fay, 16 the Court of Appeals wrote, with regard to the question of what is precedent, “it cannot be said that a case is not authority on one point because, although that point was properly presented and decided in the …consideration of the cause, something else was found …which disposed of the whole matter.”
In 40 West 67th Street Corp. v Pullman,17 defendant was a shareholder-tenant in the plaintiff cooperative building. At a special meeting called by the shareholders, the shareholders in attendance passed a resolution declaring defendant’s conduct “objectionable” and directing the Board to terminate his proprietary lease and cancel his shares. The cooperative terminated defendant’s tenancy in accordance with a provision in the lease that authorized it to do so based on a tenant’s “objectionable” conduct.” Defendant remained in the apartment, prompting the cooperative to bring this suit for, inter alia, possession and ejectment. Defendant challenged the cooperative’s action and asserted, that his tenancy could be terminated only upon a court’s independent evaluation of the reasonableness of the cooperative’s action. The primary issue in the Court of Appeals was the proper standard of review to be applied when a cooperative exercises its agreed-upon right to terminate a tenancy based on a shareholder-tenant’s objectionable conduct.
The Court of Appeals held that the proper standard of review to be applied was the business judgment rule. The rule could be applied consistently with RPAPL 711 (1), which applied to this termination and required competent evidence to show that a tenant was objectionable. Under the business judgment rule, a court should defer to a cooperative board’s determination so long as the board acts for the purposes of the cooperative, within the scope of its authority, and in good faith. Here, plaintiff was under a fiduciary duty to further the collective interests of the cooperative, whose shareholders overwhelmingly voted in favor of terminating defendant’s tenancy, and it followed the procedures contained in the lease for doing so. There was no evidence of any bad faith by plaintiff’s which would trigger further judicial scrutiny.
In Pullman, the shareholders acted to terminate the defendant’s tenancy – not the Board. Were the Court of Appeals’ statements about granting business-judgment deference to board votes directly related to the issue before the Court? Were they dicta? Does Matter of Fay support the conclusion that the statements were not dicta?18
Matter of McDermott v Bale, 19 was a Family Court custody proceeding, where the Attorney for the Children (AFC) appealed from an order which incorporated the terms of a written stipulation executed by the parties granting the parties joint custody of their two children, with primary physical residence to the mother and visitation to the father. The AFC refused to join in the stipulation, which Family Court approved over his objection. The Appellate Division affirmed.
The opinion in McDermott stated, in relevant part: “We reject the AFC’s contention that the court erred in approving the stipulation. Although we agree with the AFC that he “ ‘must be afforded the same opportunity as any other party to fully participate in [the] proceeding’ ” …, and that the court may not “relegate the [AFC] to a meaningless role” …, the children represented by the AFC are not permitted to “veto” a proposed settlement reached by their parents and thereby force a trial….” “We cannot agree with the AFC that children in custody cases should be given full-party status such that their consent is necessary to effectuate a settlement. The purpose of an attorney for the children is “to help protect their interests and to help them express their wishes to the court” (Family Ct Act § 241). There is a significant difference between allowing children to express their wishes to the court and allowing their wishes to scuttle a proposed settlement. We note that the court is not required to appoint an attorney for the children in contested custody proceedings, although that is no doubt the preferred practice … Thus, there is no support for the AFC’s contention that children in a custody proceeding have the same legal status as their parents, inasmuch as it is well settled that parents have the right to the assistance of counsel in such proceedings….20
In sum, we conclude that, where the court in a custody case appoints an attorney for the children, he or she has the right to be heard with respect to a proposed settlement and to object to the settlement but not the right to preclude the court from approving the settlement in the event that the court determines that the terms of the settlement are in the children’s best interests. …”21
What was the holding? What was precedent? What was dicta? It appears to us that the holdings were (1) that when an AFC is appointed in a custody case, he has the right to object to a settlement but not to preclude the court from approving it and (2) children do not have full party status in a custody case. 22 These holdings are precedent in the Fourth Department. Everything else was dicta. No other portion of this brief opinion was “necessary to the result.”
In Matter of Newton v McFarlane,23 the Family Court held a hearing, without first determining if there had been a change of circumstances, and then modified the custody order to give the mother sole custody of the child. Its three-line decision stated its conclusions that there were changed circumstances and awarding her custody was in the best interest of the child, but did not state any findings or its reasoning. The Second Department reversed the order and dismissed the petition, for the reasons stated in the opening paragraphs of its opinion. There, it stated:” This appeal raises several important issues pertinent to child custody determinations. We conclude that: (a) the attorney for the child has the authority to pursue an appeal on behalf of the child from an order determining the custody of the child; (b) the child is aggrieved, for appellate purposes, by an order determining custody; (c) the Family Court should not have held a full custody hearing without first determining whether the mother had alleged and established a sufficient change in circumstances to warrant an inquiry into whether the child’s best interests were served by the existing custodial arrangement; and (d) the Family Court erred in failing to give due consideration to the expressed preferences of the child, who is a teenager.”
There can be no doubt the paragraph quoted above contains the four holdings of the Appellate Division, which it denominated as its conclusions. Are these holdings precedent or just limited to the facts of this case? Did the Court hold that the attorney for “a child” or “the child” has the authority to pursue an appeal on behalf of the child from an order determining the custody of the child? Did it hold that “a child” or “the child” is aggrieved by an order determining custody? Did it reverse and dismiss the petition because there were no findings, and no demonstration of a change of circumstances, or because the wishes of the child were not considered?
Not all cases are precedents. A close reading of the opinion will make it clear that the Court was referring to this child and this set of circumstances. It held that the attorney for “the child” had the authority to pursue the appeal on behalf of the child from the order determining the custody of the child. It also held that “the child” was aggrieved by the order determining custody.
Assuming the opinion was not limited to this child, the Newton opinion indicates that the Court based its conclusion that the attorney for the child has the authority to pursue an appeal on behalf of the child from an order determining the custody of the child on the language of Family Court Act §1120 (b). It provides that whenever an attorney has been appointed by the Family Court to represent a child, the appointment continues where the attorney files a notice of appeal on behalf of the child or where one of the parties files a notice of appeal. Because there is no requirement in the Domestic Relations Law or Family Court Act that the court to appoint an attorney for the child in a custody case, the holding must be limited to a case where an AFC is appointed, and would not be precedent in the Second Department beyond its holding.
Conclusion It is not easy to distinguish dicta from precedent in an opinion. The easiest way to determine what is dicta is by the process of elimination. Work backwards from the holding or holding(s) of the court, which are usually prefaced by the words ‘We hold‘ or “We conclude.” Everything that is not necessary for the court to reach the holding is dicta.Remember, that not all holdings are precedent.
1 see Judith M. Stinson, Why Dicta Becomes Holding and Why It Matters, 76 Brook. L. Rev. 219 (2010). 2 People v Taylor, 9 NY3d 129, 878 NE2d 969 [2007]. 3 People v Bing, 76 NY2d 331, 337-38, 558 NE2d 1011 [1990] 4 Doctrine of Precedent, Black’s Law Dictionary (11th ed. 2019) 5 Warnock v Duello, 30 AD3d 818, 816 NYS2d 595 [3d Dept 2006] 6 Battle v State, 257 AD2d 745, 682 NYS2d 726 [3d Dept 1999]. 7 Mtn. View Coach Lines, Inc. v Storms, 102 AD2d 663, 476 NYS2d 918 [2d Dept 1984]. 8 Stewart v. Volkswagen of America, Inc., 181 A.D.2d 4, 584 N.Y.S.2d 886 (2d Dep’t 1992), order rev’d on other grounds, 81 N.Y.2d 203, 597 N.Y.S.2d 612 (1993). 9 Summit Const. Services Group, Inc. v. Act Abatement, LLC, 935 N.Y.S.2d 499 (Sup 2011). 10 Matter of Bull, 235 A.D.2d 722, 652 N.Y.S.2d 809, (3d Dept.,1997); Samuels v. High Braes Refuge, Inc., 8 A.D.3d 1110, 778 N.Y.S.2d 640 (4th Dept., 2004). 11 Finding of Fact, Black’s Law Dictionary (11th ed. 2019) 12 Holding, Black’s Law Dictionary (11th ed. 2019) 13 See Doctrine of Precedent, Black’s Law Dictionary (11th ed. 2019) 14 See Rohrbach v Germania Fire Ins. Co., 62 N.Y. 47 (1875) 15 See Colonial City Traction Co. v. Kingston City R.R. Co., 154 N.Y. 493, 495, 48 N.E. 900 (1897) 16 In re Fay, 291 N.Y. 198, 52 N.E.2d 97 (1943) 17 100 N.Y.2d 147, 149–50, 760 N.Y.S.2d 745, 747 (2003) 18 In London Terrace Towers v Davis, 6 Misc. 3d 600, 612–13, 790 N.Y.S.2d 813, 822–24, (N.Y. City Civ.Ct., 2004) the Court held that the additional statement was dicta. 19 94 A.D.3d 1542, 943 N.Y.S.2d 708 (4th Dept., 2012) 20 Id. Citations omitted 21 Citations omitted 22 See also Matter of Kessler v. Fancher, 112 A.D.3d 1323, 978 N.Y.S.2d 501 (4th Dept., 2017); Matter of Lawrence v Lawrence, 151 A.D.3d 187, 54 N.Y.S.3d 358 (4th Dept., 2017); and Matter of Kanya J v. Christopher K, 2019 WL 3475277 (3d Dept.,2019) each holding that a child in a custody matter does not have full party status. 23 174 AD3d 67, 2019 WL 2363541 (2d Dept., 2019)
Duke Energy’s Attempted Environmental Rape of the Shelton, WA community gets off to a bad start. The ferocious local grandmothers ultimately shut down the corporate interloper and its behemoth sponsor, Duke Energy.
17-2-01672-3 | IN THE SETTLEMENT GUARDIANSHIP OF AVA AND GREYSON SHREVE
Case Number 17-2-01672-3
Court Kitsap
File Date 09/19/2017
Case Type MST2 Minor Settlement – Civil
Case Status Completed/Re-Completed
Party
Minor SHREVE, GREYSON
Active Attorneys
Lead Attorney
Fong, Eric Michael
Retained
Minor SHREVE, AVA
Active Attorneys
Lead Attorney
Fong, Eric Michael
Retained
Guardian ad Litem (Participant) CLUCAS, MATTHEW
Events and Hearings
09/19/2017 Filing Fee Received Comment FILING FEE RECEIVED; ATTORNEY: Fong, Eric Michael;
1 09/19/2017 Case Information Cover Sheet View Document CASE INFORMATION COVER SHEET Comment 1: CASE INFORMATION COVER SHEET;
2 09/19/2017 Petition for Appointment of Guardian Ad Litem View Document Petition for Appointment of Guardian Ad LitemComment 2: PET FOR APPT OF GUARDIAN AD LITEM;
3 09/19/2017 Order Appointing Guardian Ad Litem View Document Order Appointing Guardian Ad LitemComment 3: ORDER APPOINT SETTLEMENT GAL; COMMISSIONER MICHELLE B. ADAMS; GUARDIAN AD LITEM: CLUCAS, MATTHEW;
09/19/2017 Ex Parte Action With Order Comment EX-PARTE ACTION WITH ORDER;
4 10/20/2017 Petition for Approval of Settlement View Document Petition for Approval of Settlement Comment 4: PETITION APPROVE MINOR SETTLEMENT;
5 10/20/2017 Notice of Hearing View Document NOTICE OF HEARINGComment 5: NOTICE OF HEARING; 11-03-2017P; APPROVAL OF MINOR SETTLEMENT;
11/01/2017 Report of Guardian Ad Litem View Document Report of Guardian Ad Litem
6 11/03/2017 P Probate View Document Probate Minutes Judicial Officer Houser, William C Hearing Time 9:00 AM Result Held Comment APPROVAL OF MINOR SETTLEMENT Parties Present Guardian ad Litem: CLUCAS, MATTHEW Minor: SHREVE, GREYSON Attorney: Fong, Eric Michael Minor: SHREVE, AVA Attorney: Fong, Eric Michael
7 11/03/2017 Motion Hearing View Document Probate MinutesJudicial Officer Houser, William CComment COURT APPROVES MINOR SETTLEMENT
8 11/03/2017 Order Approving Settlement View Document Order Approving Settlement Judicial Officer Houser, William CComment AND TO DISBURSE FUNDS
9 11/03/2017 Case Resolution Closed by Court Order After a Hearing
01/10/2018 Receipts View Document ReceiptsComment OF FUNDS INTO BLOCKED ACCOUNT
I fight hard to restore judicial accountability of corrupt judges presently held above the law and who perpetrate crimes against the people with impunity. The Tennessee Board of Judicial Conduct is repugnant to the Tennessee Constitution and must be abolished, and the power of impeachment restored to the legislative houses.
All other candidates seeking office, or in office, do not have the courage, intellect, or integrity to stand in defense of justice against a judiciary where admitted corruption runs rampant.
Take a stand with me to secure the Blessings of Liberty and JUSTICE to ourselves and our Posterity. All Tennessee – WRITE IN “JOHN GENTRY” FOR U.S. Senate, the only constitutionally competent candidate fighting to end govt corruption, restore the republic and restore rights of the people.
Vote “JOHN GENTRY” on the ballot – Tennessee state Senate, District 18; Sumner, Trousdale, and part of Davidson Counties.
Humbly stated, my work is as profoundly important as when our forefathers declared independence from Great Britain.
Kitsap County Family Superior Court Commissioner Matthew Clucas’ kidnapping of of Heather Wood’s 16yo daughter, Adeline, and stripping her of her most fundamental right, to parent her child in a lawless Kangaroo impromptu Hearing, w/o even the color of State law prompts a complaint to the Judicial Conduct Conduct Commission of Washington State.
6 08/30/2023 Acceptance of Service View Document Acceptance of Service
08/31/2023 Ex Parte Original Type Ex ParteJudicial Officer Robinson, Tina Hearing Time 8:30 AMResult HeldParties PresentPetitioner: FEULNER, ADELINE MARYLYNN
7 08/31/2023 Motion Hearing View ocument Motion HearingJudicial Officer Robinson, Tina Comment GAL APPOINTED; HEARING SET 10/6/23 @1:30 MLC
8 08/31/2023 Order Appointing Guardian Ad Litem View Document Order Appointing Guardian Ad Litem Judicial Officer Robinson, Tina
9 08/31/2023 Note for Motion Docket View Document Note for Motion Docket Comment 10/06/2023 AT 1:30 PM MLC. EMANCIPATION
9.1 09/08/2023 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
10 09/12/2023 Counter Declaration of Heather Wood View Document Comment & OBJECTIONS OF HEATHER WOOD TO ADELINE FEULNER’S DECLARATIONS; COUNTER
11 09/15/2023 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
18 10/04/2023 Note for Motion Docket View Document Note for Motion DocketComment 10/06/2023 1:30PM; EMANCIPATION; STRICT SCRUTINY
19 10/04/2023 Affidavit Declaration Certificate Confirmation of Service View Document Affidavit Declaration Certificate Confirmation of Service
10/06/2023 Emancipation Hearing Judicial Officer Clucas, Matthew L Hearing Time 1:30 PM
10/06/2023 Ex Parte Judicial Officer Fleischbein, Lynn K Hearing Time 3:30 PM
20 10/06/2023 Return of Service View Document Return of Service
21 10/06/2023 Correspondence View Document Correspondence Comment TO HEATHER WOOD/JOHN SMITH RE INABILITY TO FILE VIDEO AND AUDIO RECORDINGS INTO CASE MANAGEMENT SYSTEM
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