Opinion
02-15-2024
In the Matter of PEOPLE of the State of New York, BY Letitia JAMES, etc., Petitioner-Respondent, v. VDARE FOUNDATION, INC., Respondent-Appellant.
Frederick C. Kelly, Goshen, for appellant. Randazza Legal. Group, PLLC, Brooklyn (Jay M. Wolman of counsel), for appellant. Letitia James, Attorney General, New York (Andrea W. Trento of counsel), for respondent.
Frederick C. Kelly, Goshen, for appellant.
Randazza Legal. Group, PLLC, Brooklyn (Jay M. Wolman of counsel), for appellant.
Letitia James, Attorney General, New York (Andrea W. Trento of counsel), for respondent.
Manzanet–Daniels, J.P., Oing, Kapnick, Shulman, Pitt–Burke, JJ.
Order, Supreme Court, New York County (Sabrina B. Kraus, J.), entered January 25, 2023, which, to the extent appealed from as limited by the briefs, granted petitioner’s motion to compel compliance with the subpoena duces tecum dated June 23, 2022, subject to certain agreed-to redactions, and to produce a redaction log, and denied respondent’s motion to dismiss, unanimously affirmed, without costs.
[1] The court providently exercised its discretion in granting petitioner’s motion to compel compliance with its subpoena (see Suresh v. Krishnamani, 212 A.D.3d 514, 514, 183 N.Y.S.3d 72 [1st Dept. 2023]). The Office of the Attorney General (OAG) only had to make a preliminary showing that the information it sought was "reasonably related to a proper subject of inquiry" (Matter of Roemer v. Cuomo, 67 A.D.3d 1169, 1171, 888 N.Y.S.2d 669 [3d Dept. 2009] [internal quotation marks omitted]; see also Anheuser–Busch, Inc. v. Abrams, 71 N.Y.2d 327, 332, 525 N.Y.S.2d 816, 520 N.E.2d 535 [1988]; Matter of Libre by Nexus, Inc. v. Underwood, 181 A.D.3d 488, 122 N.Y.S.3d 7 [1st Dept. 2020]). The information sought was highly relevant to the investigation undertaken by the OAG into respondent’s potential violations of the Not–for–Profit Corporation Law.
[2] The subpoena does not impermissibly infringe on respondent’s or its vendors’ and contractors’ First Amendment rights. Asserting a First Amendment privilege does not presumptively shield a charitable organization from OAG scrutiny, (see Abrams v. New York Found. for the Homeless, 190 A.D.2d 578, 593 N.Y.S.2d 518 [1st Dept. 1993], lv dismissed 81 N.Y.2d 954, 597 N.Y.S.2d 939, 613 N.E.2d 971 [1993]). Respondent is required to make some showing that producing the information would impermissibly infringe on its First Amendment rights (see Matter of Evergreen Assn. Inc. v. Schneiderman, 153 A.D.3d 87, 100, 54 N.Y.S.3d 135 [2d Dept. 2017]), such as by showing that the enforcement of the discovery requests will result in "harassment, membership withdrawal, or discouragement of new members" or other consequences that "suggest an impact on, or chilling of, [its] members’ associational rights" (Perry v. Schwarzenegger, 591 F.3d 1147, 1160–1161 [9th Cir. 2010] [internal quotation marks omitted], cert dismissed 559 U.S. 1118, 130 S.Ct. 2432, 176 L.Ed.2d 945 [2010]).
[3] Respondent has not made a prima facie showing that producing the information would have an impact on or chill its members’ associational rights (see Matter of Evergreen Assn., Inc. v. Schneiderman, 153 A.D.3d at 100, 54 N.Y.S.3d 135). Contrary to respondent’s claim, anonymity of its vendors and contributors would not be sacrificed, as both the OAG and the court have agreed to a so-ordered confidentiality agreement. Moreover, while respondent has acknowledged having detractors which has resulted in certain adverse consequences, it does not follow that identifying names of vendors subject to a confidentiality agreement would result in harassment, membership withdrawal, or discouragement of new members, or other consequences that would impact its members’ associational rights (see Perry v. Schwarzenegger, 591 F.3d at 1160).
We find no support for respondent’s contention that the OAG conceded any retaliatory animus or was targeting it for its protected speech.
We have considered respondent’s remaining arguments and find them unavailing.