Opinion
5176-17
06-05-2018
Risa S. SUGARMAN, Chief Enforcement Counsel of the New York State Board of Elections, Petitioner, v. NEW YORK STATE COMMITTEE OF the INDEPENDENCE PARTY, Frank M. Mackay as Chair, Teresa Bogart as Treasurer; the Independent Democratic Conference of the New York State Senate, Jeffrey D. Klein as Leader and Chair; Senate Independence Campaign Committee and Senate Independence Campaign Committee Housekeeping, Jeffrey D. Klein as Chair, John L. Kase as Treasurer, John A. Emrick as Authorized Signer; Klein for New York, Rebecca Eduardo as Treasurer; Jeffrey Klein Excelsior as Successor in Interest to Klein for New York, Rebecca Eduardo as treasurer; Tony Avella for New York, Rocco D'Erasmo as Treasurer; David Carlucci for New York, John Mulgrew as Treasurer; People for Marisol Alcantra, Jetsenia Cenices as Treasurer, Respondents.
RISA S. SUGARMAN, Chief Enforcement Counsel of the New York State Board of Elections Petitioner, (Carla V. DiMarco, Esq., of Counsel), 40 N. Pearl Street, Suite 5, Albany, New York 12207-2729 KANTOR DAVIDOFF MANDELKER TWOMEY, GALLANTY & KOKHBA, P.C., Attorneys for Respondents, ( Lawrence A. Mandelker, Esq., Gary Hoppe Esq., and Michael E. Twomey, Esq., of Counsel), 415 Madison Avenue, 16th Floor, New York, New York 10017
RISA S. SUGARMAN, Chief Enforcement Counsel of the New York State Board of Elections Petitioner, (Carla V. DiMarco, Esq., of Counsel), 40 N. Pearl Street, Suite 5, Albany, New York 12207-2729
KANTOR DAVIDOFF MANDELKER TWOMEY, GALLANTY & KOKHBA, P.C., Attorneys for Respondents, ( Lawrence A. Mandelker, Esq., Gary Hoppe Esq., and Michael E. Twomey, Esq., of Counsel), 415 Madison Avenue, 16th Floor, New York, New York 10017
Kimberly A. O'Connor, J.
Petitioner Risa S. Sugarman ("petitioner"), Chief Enforcement Counsel of the New York State Board of Elections ("SBOE"), has brought this special proceeding, pursuant to Election Law § 16-100 and § 16-114 (3), seeking, among other relief, a judgment of this Court: (1) declaring Rule c of Article X, Section 5 ("Rule X.5.c") of the Rules of the New York State Committee of the Independence Party ("NYSCIP"), which provides for the creation of the Senate Independence Campaign Committee ("SICC") as a party committee that is chaired, and whose officers and members are appointed, by the leader of the Independent Democratic Conference of the New York State Senate ("IDC"), and all actions taken pursuant to such Rule, including the formation and registration of SICC and Senate Independence Campaign Committee Housekeeping ("SICC Housekeeping") invalid and void as contrary to law; and (2) compelling respondents NYSCIP, Frank M. Mackay ("Mackay") as Chair, Teresa Bogart ("Bogart") as Treasurer; the IDC, Jeffrey D. Klein ("Klein") as Leader and Chair; SICC and SICC Housekeeping, Jeffrey D. Klein as Chair, John L. Kase ("Kase") as Treasurer, John A. Emrick ("Emrick") as authorized signer; Klein for New York, Rebecca Eduardo as Treasurer; Jeffrey Klein Excelsior as successor in interest to Klein for New York, Rebecca Eduardo as Treasurer; Tony Avella for New York, Rocco D'Erasmo as Treasurer; David Carlucci for New York, John Mulgrew as Treasurer; People for Marisol Alcantra, Jetsenia Cenices as Treasurer (collectively "respondents") to comply with Election Law § 2-112, § 2-118, § 14-114, and § 14-118, and other provisions of the Election Law.
The Chief Enforcement Counsel of the SBOE is charged with investigating possible violations of Article 14 of the Election Law and other statutes governing campaigns, elections, and related procedures, and with instituting enforcement actions.
Respondents oppose the petition, and have cross-moved for: (1) an order pursuant to CPLR 3211(a) (7), dismissing this proceeding on the ground that, as a matter of law, the provisions of Election Law § 2-112 and § 2-118 neither apply to nor govern the selection of SICC's officers; and (2) alternatively, if Election Law § 2-112 and § 2-118 apply to and govern the selection of SICC's officers, an order pursuant to 42 USC § 1983, dismissing the petition on the ground that the application of § 2-112 and § 2-118 as against NYSCIP and SICC, among others, unconstitutionally infringes upon respondents’ rights, and particularly the rights of the Independence Party respondents, to freedom of association protected by the First Amendment and made applicable to the State through the Fourteenth Amendment, and awarding respondents reasonable counsel fees, pursuant to 42 USC § 1988. By their application, respondents also seek a judgment declaring that: (1) SICC is a validly created party committee of NYSCIP; (2) SICC and SICC Housekeeping's registration as a constituted committee and constituted committee housekeeping account was inadvertent and SICC and SICC Housekeeping be permitted to amend their registrations with the SBOE to correct their committee and housekeeping account types; and (3) all contributions received and expenditures made by SICC conformed to the requirements of Article 14 of the Election Law. Petitioner opposes the cross-motion, and respondents have replied to the opposition.
Relevant Factual Background
The IDC, formed in 2011 by Senator Jeffrey D. Klein and dissolved in 2018, was an unincorporated association of eight New York State Senators who are elected Democrats, but who caucused separately from the Senate Democratic Conference. The IDC was comprised of Senator Klein, who served as Leader, and seven other State Senators: Diane Savino, Anthony Avella, Jr., David J. Valesky, David Carlucci, Jesse Hamilton, Marisol Alcantra, and Jose Peralta. The IDC was not a political party, as defined in the Election Law.
In April 2018, the IDC dissolved and its members reunited with the Senate Democratic Conference ( see State of Politics blog, Senate Dems Unified, Officially , http://www.nystateofpolitics.com/2018/04/senate-dems-unified-officially/).
In or about August 2011, a political committee known as the IDC Initiative registered with the SBOE as a type 2 political action committee ("PAC"). According to the petition, the primary purpose of the IDC Initiative was to support IDC members and other candidates through contributions and independent expenditures.
NYSCIP is the state constituted committee and governing body of the New York State Independence Party, a political party, as defined in the Election Law. In July 2016, NYSCIP filed a Certificate of Adoption of Change in the Rules with the SBOE, adding new paragraph c to Article X, Subsection 5 of NYSCIP's Rules ("Rule X.5.c"). Rule X.5.c states:
There shall be a Senate Independence Campaign Committee which shall have responsibility on a day-to-day basis for the planning, organization, financing and conduct of election campaigns for the office of State Senator. The chair of such committee shall be the leader of the Independent Democratic Conference of the State Senate and such leader shall appoint the treasurer and other members of the committee.
The Senate Independence Campaign Committee shall be recognized as a party committee for all purposes under the Election Law, and the rules promulgated thereunder, including, but not limited to, the provisions of sections 2-100 and 14-100 thereof.
All other Independence Party of New York Campaign and Housekeeping accounts will still function under the direction of the Party Chairman and may, as in the past, participate in many campaign operations including those for State Senators.
Rule X.5.c was implemented when Senator Klein became chair of SICC, and Klein, in turn, appointed John L. Kase, as treasurer, and John A. Emrick, as additional authorized check signer. When they took their positions as officers of SICC, Klein, Kase, and Emrick were enrolled members of the Democratic Party. In June 2017, Kase filed an application with the Nassau County Board of Elections to change his enrollment to the Independence Party. His change of enrollment became effective on November 14, 2017.
Kase was an enrolled member of the Democratic Party at all times relevant to the actions complained of in this proceeding.
In August 2016, Kase registered SICC and SICC Housekeeping with the SBOE, respectively, as a type 5 state constituted committee and a type 5h state constituted housekeeping committee, identifying himself as treasurer and Emrick as additional authorized check signer. That same month, the IDC Initiative made contributions totaling $809,024.29 to SICC and SICC Housekeeping, and terminated its SBOE registration. According to petitioner, in 2016, SICC and SICC Housekeeping received contributions in excess of the amounts that could have been received by a candidate committee, and SICC made transfers to and expenditures on behalf of IDC candidates in amounts exceeding candidates’ contribution receipt limits from non-party committees. This proceeding followed.
Relevant Statutory and Regulatory Background
A political "party" is defined in the Election Law as "any political organization which at the last preceding election for governor polled at least fifty thousand votes for its candidate for governor" ( Election Law § 1-104 [3] ). Under Article 2 of the Election Law, which addresses party organization, "party committees ... consist of a state committee, county committees, and such other committees as the rules of the party may allow" ( Election Law § 2-100 ). For purposes of Article 14 of the Election Law, which governs campaign receipts and expenditures, " ‘party committee’ means any committee provided for in the rules of the political party in accordance with section two-one hundred ... other than a constituted committee," and a "constituted committee" is "a state committee, a county committee or duly constituted subcommittee of a county committee" ( Election Law § 14-100 [2], [3] ).
Election Law §§ 2-102, 2-104, and 2-106, require that members of state and county committees (constituted committees) be elected at a primary election and be enrolled as members of the party, and Election Law § 2-110 provides that "[a]ll committees other than state and county committees shall be formed in the manner provided for by the rules of the party." Election Law § 2-112 (1) states:
Every state committee shall within fifteen days after its election, every county committee shall within twenty days after its election, and all other committees shall within the time specified by party rules, meet and organize by electing a chairman, a secretary, a treasurer and such other officers as they may by their rules provide. Within three days after their meetings all state and county committees shall file in the office of the state board of elections a certificate stating the names and post office addresses of such officers. County committees and any other committee contained therein shall file a copy of such statement with their county board of elections.
Pursuant to Election Law § 2-112 (2), "[s]uch officers shall be enrolled members of the party, but need not be members of such committee." Further, Election Law § 2-118 (1) reads, in relevant part, that:
[i]n the case of the death, declination, enrollment in another party, removal from the unit or removal from office of a member of a committee, or the failure to nominate or elect a member, the vacancy created thereby shall be filled by the remaining members of the committee by the selection of an enrolled voter of the party qualified for election from the unit of representation in which such vacancy shall have occurred.
Under Article 14 of the Election Law, party committees and constituted committees supporting a candidate of the party are not deemed "contributors" ( see Election Law § 14-114 [3] ). Therefore, they may coordinate certain expenditures with the candidate without those expenditures being deemed "contributions" subject to the candidate's contribution receipt limit. In addition, party and constituted committees may make "transfers" of money to candidates that are not subject to contribution limits ( see § 14-100 [10] [defining "transfer" as, among other things, "any exchange of funds between a party or constituted committee and a candidate or any of [the candidate's] authorized committees"]; § 14-100 [9] [2] [defining "contribution" as, among other things, "any funds received by a political committee from another political committee to the extent such funds do not constitute a transfer"]).
Furthermore, party and constituted committees are not subject to the prohibitions applicable to political action committees ("PACs") and independent expenditure committees ("IECs") ( see Election Law § 14-107-a [1], [2] [a] ; Election Law § 14-100 [15], [16] ), and as such, can support their candidates by both giving them money and making independent expenditures on their behalf. Only party committees and constituted committees are permitted to register separate housekeeping committees for the purpose of reporting contributions received and expenditures made "to maintain permanent headquarters and staff and carry on ordinary activities [that] are not for the express purpose of promoting the candidacy of specific candidates," which are not subject to contribution and receipt limits ( Election Law § 14-124 [3] ). Moreover, party committees have higher campaign contribution limits than single or multi-candidate committees ( see 9 NYCRR 6214.0 ).
PAC is defined in the Election Law as "a political committee which makes no expenditures to aid or take part in the election or defeat of a candidate, or to promote the success or defeat of a ballot proposal, other than in the form of contributions, including in-kind contributions, to candidates, candidate's authorized committees, party committees, constituted committees, or independent expenditure committees provided there is no common operational control between the political action committee and the independent expenditure committee; or in the form of communications that are not distributed to a general public audience as described in subdivision thirteen of [ Election Law § 14-100 ]" ( Election Law § 14-100[16] ).
Under the Election Law, IEC "means a political committee, that makes only independent expenditures as defined in [Article 14], and does not coordinate with a candidate, candidate's authorized committees or an agent of the candidate as defined in paragraph (g) of subdivision one of section 14-107" ( Election Law § 14-100 [15] ).
A housekeeping committee is a segregated accounting of housekeeping receipts and expenditures of a party committee. A housekeeping account can receive and expend unlimited amounts of money for non-candidate expenditures.
The maximum contribution permitted to a party or constituted committee is, and was in 2016, $109,600.00.
Arguments
Petitioner argues that Rule X.5.c, which provides for the creation of SICC as a party committee of the Independence Party, but designates the IDC leader, a Democrat, as the chair of the committee and authorizes the IDC leader to appoint the other officers and members of SICC, is in direct conflict with Election Law § 2-112 (2), which requires that officers of party committees be enrolled members of the party, and § 2-118 (1), which creates a vacancy when an officer of a party committee enrolls in a different party and requires that the vacancy be filled with an enrolled member of the party. Petitioner further submits that Rule X.5.c is in direct conflict with provisions of the Election Law that "clearly vest control of the party solely in enrolled members of the party," and that the "Election Law does not permit a person who is an enrolled member of a different political party to be vested with control of an Independence Party committee."
Petitioner asserts that in her capacity as Chief Enforcement Counsel for the SBOE, she has an interest in maintaining the integrity of political parties and their indispensable roles in New York State elections, and has an interest in enforcing contribution and receipt limits imposed by Article 14 of the Election Law for the purpose of preventing quid pro quo corruption and the appearance of corruption. Petitioner submits that if a political committee that is not controlled by a party is permitted to take advantage of benefits reserved in the Election Law to party committees, the committee is able to evade contribution and receipt limits established by Article 14, and the committee is able to retain unfair advantages over other committees.
According to the petitioner, Mackay, NYSCIP, Klein, and the IDC caused Rule X.5.c to be adopted for the purpose of allowing the IDC to avoid contribution limits imposed by Article 14 of the Election Law; allowing the IDC to avoid limitations on the activities of non-party committees such as PACs and IECs; and affording Klein and the IDC access to and control of an entity denominated a "party committee," despite the fact that the IDC is not a political party. In addition, petitioner maintains that Klein, Kase and Emerick caused SICC and SICC Housekeeping to be formed pursuant to Rule X.5.c and registered with the SBOE as state constituted and state constituted housekeeping committees to avail the IDC of benefits reserved only to constituted and party committees under the Election Law.
Petitioner contends that SICC is the alter ego of the IDC Initiative, being chaired by the leader of the IDC, controlled by the Democratic Party, and having received assets of the IDC Initiative, and that by receiving contributions far in excess of the amount it could have received if it was acting as a non-party committee and making expenditures not permitted by other types of non-party committees and far in excess of candidate receipt limits enforceable against non-party committees, SICC has obtained beneficial treatment under the Election Law with respect to campaign finance limitations. Petitioner asserts that because Rule X.5.c purports to create a party committee of the Independence Party, officers and members of any such party committee must be enrolled members of the Independence Party in accordance with Election Law § 2-112 (2). Moreover, petitioner maintains that if Rule X.5.c is not invalidated, it would lead to immediate vacancies in the offices of chair and treasurer pursuant to Election Law § 2-118 (1) due to enrollment in another party, and SICC would have no members.
Petitioner also argues that SICC and SICC Housekeeping are not valid state constituted (type 5) and state constituted housekeeping (type 5 H) committees because the Election Law provides for only one state constituted committee of a political party and NYSCIP is the state constituted committee of the Independence Party; Election Law §§ 2-102 (2) and 2-112 (2) require that constituted committee members and officers be enrolled voters of the party and Klein and Kase are not enrolled voters of the Independence Party; and Election Law §§ 2-102 (1), 2-106, and 2-112 require that state constituted committee members be elected at a party primary election and that officers be elected at an organizational meeting of the committee, and neither Klein nor Kase were elected members of NYSCIP at a primary election or elected as officers at an organizational meeting.
Petitioner submits that since SICC is not a legally created party or constituted committee, SICC's SBOE registration and the SBOE registration of SICC Housekeeping are invalid. As such, petitioner contends that SICC Housekeeping's SBOE registration must be terminated; SICC's Election Law § 14-118 statement must be amended to reflect an appropriate committee name and type that is not a party or constituted committee; SICC and SICC Housekeeping must be prohibited from receiving or expending monies until the housekeeping account is closed and the amended § 14-118 statement is filed; SICC's previously filed campaign finance disclosure reports must be amended to include all receipts and expenditures previously reported as housekeeping; and SICC must take any other actions necessary to comply with the requirements of the Election Law.
In opposition to the petition and in support of their motion to dismiss, respondents argue that neither the NYSCIP's adoption of Rule X.5.c nor any actions taken pursuant to Rule X.5.c, including the creation of SICC as a party committee and SICC's registration and the registration of its housekeeping account with the SBOE, were contrary to the provisions of Election Law §§ 2-112 and 2-118 because those statutes, by their plain language, do not apply to SICC. Specifically, respondents assert that SICC is a party committee, "other than a state or county committee" within the purview of Election Law, as it was "formed in the manner provided by the rules of the party," specifically by Rule X.5.c. Respondents contend that nothing in Rule X.5.c requires members of SICC to be enrolled party members elected by the public at a primary election, or to be members from designated "units of representations," as is the case with state and county committees. Respondents also submit that unlike state and county committees, SICC is not a committee that had to meet and organize after its formation to elect its own officers because Rule X.5.c provides for the appointment of its officers. As such, respondent maintains that SICC is a committee that exists solely by virtue of party rules, and is not created by or subject to the organizational requirements of the Election Law.
According to respondents, by its plain terms, the requirement of Election Law § 2-112 (2) that "such officers" be "enrolled members of the party" applies only to officers of "state and county committees." Respondents maintain that "such officers," which is used only once in Election Law § 2-112 (1), is clearly limited to officers of "state and county committees," and, therefore, the meaning of "such officers" in § 2-112 (2) must be identical. Respondents assert that even if the Court were to look outside the plain language of the statute, the legislative history of Election Law § 2-112 confirms that the meaning of "such officers" as used in § 2-112 (2) is limited to "state and county committees" elected at their organizational meetings, not officers of party committees such as SICC.
In addition, respondents argue that Election Law § 2-118 has no application to SICC because, on its face, § 2-118 (1), like § 2-112 (2), applies only to filling vacancies "by the selection of an enrolled voter of the party qualified for election from the unit representation in which such vacancy shall have occurred." Respondents contend that Election Law § 2-118 (1) "could only apply to state and county committee[s][ ] whose members must be elected in a primary election ... and must be ‘enrolled members of the party’ and residents of the ‘unit of representation’ from which they are elected." Respondents submit that the limitation to enrolled voters and residency requirement of § 2-118 (1) is in line with the requirements for enrollment and residency set forth elsewhere in the Election Law for members of elected committees, and as such, Election Law § 2-118 (1) has no application to a non-elected party committee like SICC, which has no relation to "units of representation."
Respondents maintain that even if Election Law § 2-112 and 2-118 applied to SICC, and governed the qualifications of SICC's officers, enforcement of those statutes would unduly deprive them of their rights of freedom of association, and particularly the right of the Independence Party respondents (NYSCIP, Mackay, Bogart, and SICC) to freely associate with nonparty members and with one another in choosing their party leaders, which is protected by the First Amendment and Fourteenth Amendment of the United States Constitution. Respondents submit that their constitutional right of association includes the right of the Independence Party, as a political party, to advocate and advance its political agenda and goals. As such, respondents maintain that the formation of SICC and naming the leader of the IDC as SICC's chair (with the authority to name the treasurer) represents the Independence Party's internal decision about: (1) the best way for the Party to organize and structure itself; (2) with whom the Party should associate to advance its agenda; and (3) the most effective way to achieve the Party's policy, political, and legislative goals.
Respondents contend that although the State has a compelling interest in preserving the integrity of its elections and may enact laws that interfere with the internal affairs of a political party when necessary to ensure that elections are fair and honest, petitioner has not alleged such a compelling interest "for its undoubted interference with [r]espondents’ determination of the structure which best allows them to pursue their political goals and [the Independence Party's] ... discretion in how to organize itself, conduct its affairs, and select its leaders." Respondents aver that as such, Election Law § 2-112 and § 2-118 as applied to them, are unconstitutional.
In addition, respondents argue that the while the State might have an interest in preventing non-enrollees from forcing political parties to accept them as chairs of party committees, the State has no interest in preventing the Independence Party from designating enrolled Democrats as the chair and treasurer of SICC. Moreover, respondents assert that although petitioner is described as having an interest in enforcing contribution and receipt limits imposed by Article 14 of the Election Law for purposes of preventing quid pro quo corruption and the appearance of corruption, "[t]he [p]etition does not challenge a party committee's exemption from the contribution or activity limits in Article 14." Respondents contend that instead, "[p]etitioner's only complaint is with the Independence Party's decision to create a party committee with a Democratic chair to support the IDC as the best way to advance the Party's policies and interests," and "the First Amendment prevents her from substituting her judgment for the Party's judgment on these issues."
Respondents submit that since SICC is a valid party committee because, as a matter of statutory interpretation, Election Law § 2-112 (2) and § 2-118 do not require SICC officers to be enrolled in the Independence Party, or as a matter of protecting their rights of freedom of association under the First Amendment, § 2-112 (2) and § 2-118 (1) cannot be enforced as against them, SICC was entitled to receive the contributions it received and make the expenditures it made, and none of its activities violated either the contribution or activity limits of Article 14 of the Election Law.
Finally, respondents argue that they are entitled to an award of attorneys’ fees pursuant to 42 USC § 1988 because they have demonstrated, under 42 USC § 1983, that petitioner, by her application of Election Law § 2-112 (2) and § 2-118 (1), has sought to wrongfully deprived them of their constitutional rights of association under the First and Fourteenth Amendments to the United States Constitution.
In reply and opposition to the cross-motion, petitioner initially argues that the Court should decline to dismiss the petition for failure to state a cause of action because the petition raises a question of law, and the respondents have not shown that this proceeding is non-justiciable or not amenable to the Court's jurisdiction, but merely argue for a different result on the merits. Petitioner further contends that respondents’ interpretation of Election Law § 2-112 and Election Law § 2-118 as neither applying to SICC nor governing the selection of its officers is inconsistent with the plain language and history of those statutes.
Petitioner asserts that the 1909 predecessor law to Election Law § 2-112 was silent as to the organizational requirements for committees, other than state and county committees, and as to the qualifications of their officers, and that when subdivision one of the law was amended in 1922 to permit the election of officers from outside the committee, the requirement that officers also be enrolled members of the party reflected the concern the Legislature had for ensuring that party committees be composed of party members. Petitioner further submits that the plain language of § 2-112, recodified in 1976, makes clear that the Legislature intended to include "state, county and all other committees " in the requirement for timely organization, and because the entirety of Article two provides for only three committee types, and two -- state and county -- are mentioned by name, it follows that " all other committees " must refer to the third type -- i.e., "such other committees as the rules of the party may allow" (emphasis in original; see Election Law § 2-100 ).
Moreover, petitioner contends that § 2-112 ’s division into two separate paragraphs makes clear that the Legislature intended subdivision two to apply to the officers of all committees referenced in subdivision one, not just the officers of state and county committees, and argues that respondents’ construction of § 2-112 fails to give effect to the words " and all other committees " in subdivision one. Petitioner further submits that the filing requirement of subdivision one, which applies only to "state and county committees," is not evidence of an intent on the part of the Legislature to limit the application of subdivision two to only state and county committees. Petitioner maintains that if the Legislature intended subdivision two to apply only to state and county committees, it would have used the same limiting language used in subdivision one.
Next, petitioner argues that amendments to Election Law § 2-116 and 2-118, in which "enrollment in another party" became an event that created an automatic vacancy ( see Election Law § 2-118 [1], as amended) rather than serving as a basis for discretionary removal of a committee officer or member ( see Election Law § 2-116, prior to amendment), indicates the importance the Legislature attached to having committees of political parties made up of enrolled members of the party, and gives effect to § 2-112 by providing a mechanism to enforce the requirement that officers of all party committees be enrolled members of the party. In addition, petitioner urges the Court to reject respondents’ argument that Election Law § 2-118 can only be read to apply to state and county committees because members of those committees are elected from units of representation. Petitioner asserts that state and county committees are not the only committees whose members come from units of representation, and submits that respondents’ strained interpretation of that statute would result in its application to some committees based on units of representation and not others, or to some committees created pursuant to party rules and not others.
Furthermore, petitioner claims that the Independence Party and IDC respondents have done more than create and staff an internal party committee, but instead have created a separate "political committee" as defined in statute and regulated under Article 14 of the Election Law. Petitioner maintains that respondents have failed to identify anything in the law or legislative history to show that the Legislature intended the unique privileges extended to party committees in the campaign finance law to support their candidates, gain access to the ballot, and build their party to be extended to independent bodies, political "conferences" such as the IDC, lobbying groups, unions, PACs, IECs, or any other special interest group. Petitioner asserts that if the Legislature intended to extend these special benefits to special interest groups, it could have done so. Petitioner argues that because the Legislature evinced a clear intent to reserve special benefits and exemptions only to committees of political parties, as defined in the Election Law, and not to extend those same benefits to "conferences" such as the IDC, respondents should not be permitted to circumvent the limitations imposed by Article 14 and give the IDC benefits reserved under the Election Law solely to political parties.
Moreover, petitioner asserts that respondents’ claim that enforcement of Election Law § 2-112 and § 2-118 would unduly burden their rights of freedom of association under the First and Fourteenth Amendments "fails as a matter of law because the [S]tate's ‘important regulatory interests’ are ‘enough to justify reasonably nondiscriminatory restrictions.’ " Petitioner contends that the IDC respondents (IDC, Klein, Kase, and Emerick) have articulated no associational interest that would be impacted by the application of § 2-112 and § 2-118 to NYSCIP and SICC. Petitioner asserts that the IDC respondents have exercised their right to associate with a political party and have chosen to associate with the Democratic Party, and nothing in § 2-112 and § 2-118 prevents the IDC respondents from being officers of a party committee of the Democratic Party.
Petitioner maintains that a legislative "conference" created solely by virtue of internal Senate Rules is not entitled to the same benefits under the Election Law or the United States Constitution as a political party since it has no role in the election process — specifically, it does not build a party, nominate candidates, have a presence on the ballot, hold primaries, or undertake any of the quasi-public functions entrusted to political parties under the Election Law. As such, petitioner submits that the Election Law does not recognize a legislative conference or contemplate that a legislative conference is entitled to receive any special benefits under the law, and that the First Amendment does not provide any protection for associational interests, if any, of a legislative conference. Thus, petitioner contends that the IDC respondents have no associational interest in being an officer in a party committee of a party in which they are not enrolled, and have no standing to assert the associational interests of the Independence Party.
Petitioner also argues that respondents have failed to articulate, in any factual manner, how enforcement of Election Law § 2-112 and § 2-118 impinges on the Independence Party's associational rights to advance its policies and goals of: (1) "maximizing its vote" and maintaining its status as a political party; and (2) increasing its ability to influence the legislative process. According to the petitioner, application of §§ 2-112 and 2-118 to the Independence Party and SICC does not preclude the Independence Party from allying publicly with the IDC, prevent the Independence Party from nominating IDC members as its candidates or spending money to support them, and does not preclude the Independence Party from forming and using campaign committees as party committees or using such committees to support IDC candidates. Nor do those sections prevent the Independence Party from establishing and registering SICC or SICC Housekeeping, or impact its ability to influence the legislative process.
Petitioner contends that the only effect of §§ 2-112 and 2-118 is to require that party committee officers be enrolled members of the Independence Party, and asserts that the Supreme Court has repeatedly held that requiring an individual to disaffiliate with a political party to associate with another is, at most, a minimal burden on the individual's and political party's First Amendment associational rights. Petitioner submits that while there is little question that the Independence Party has the right to form party affiliations, determine its own strategy, and determine with whom it will form alliances to advance its policies and goals, it does not follow that Independence Party or its members have a right to expect the State to recognize a committee as party committee, entitled to the benefits afforded by Article 14 of the Election Law, if its members and officers do not meet the qualifications imposed by the State for a committee to be so recognized.
Petitioner asserts that the Supreme Court has rejected the argument that if the law burdens the rights of political parties or their members in any way, such law will only survive constitutional scrutiny if it is narrowly tailored to advance a compelling State interest, and has instead adhered to the analytical framework of applying a rational based analysis to cases where the burdens imposed are minimal. Petitioner submits that as applied here, Election Law §§ 2-112 and 2-118 are not intra -party regulations, but rather inter -party regulations because they prevent a party from selecting individuals who are enrolled as members of another party as officers of their committee, and that there is no constitutional impediment to restricting committee officers to enrolled members of a party. Thus, petitioner argues that §§ 2-112 and 2-118 are legitimate restrictions on non-internal party functions that are properly analyzed under a rational basis standard.
Noting the Supreme Court's recognition of a state's compelling interest in preventing quid pro quo corruption or its appearance, and its holdings that contribution limits on how much a candidate and political committee can accept from a single donor are closely drawn to prevent quid pro quo corruption or the appearance thereof, petitioner further argues that the requirement that officers of party committees, which are given unique privileges under the State's campaign finance laws not available to any other type of political committee, be enrolled members of the party is reasonable and rationally related to preventing candidates and political parties from evading contribution limits by abusing the exceptions in Article 14, and thereby furthers the State's interest in preventing quid pro quo corruption. Petitioner also submits that Election Law §§ 2-112 and 2-118 further New York's important interests in ensuring fair and efficient elections by preserving the integrity of political parties as viable and identifiable interest groups, retaining the importance of party affiliations to aid in parties’ electioneering and party building efforts, guarding against party raiding and sore loser candidacies, and ensuring that party committees are actually run by a party, as opposed to a "conference" of another party, and that those committees serve the interests of the party.
Finally, petitioner avers that respondents are not entitled to an award of attorneys’ fees under 42 USC § 1988 because they have proceeded in this case by motion to dismiss, have not filed an answer or counterclaim, pursuant to 42 USC § 1983, or any other cause of action, and have not alleged facts necessary to state a claim under 42 USC § 1983, such as a deprivation of rights caused by a person acting under color of state law. According to petitioner, respondents have instead asserted the unconstitutionality of Election Law § 2-112 and § 2-118 as a defense and not as a 42 USC § 1983 claim. Petitioner argues that even if this was a proper case for the Court to consider a 42 USC § 1988 fee award, respondents would not be entitled to such an award as they are in the position of a defendant in this proceeding, and petitioner's action cannot be deemed frivolous, unreasonable, or groundless.
In reply to petitioner's opposition to the cross motion, respondents reiterate their argument that the requirement of Election Law § 2-112 (2) that "[s]uch officers shall be enrolled members of the party," by its clear language and legislative history, applies only to officers of a "state committee" and "county committees and any other committees contained therein," namely "constituted committees" and "duly constituted subcommittees of county committees" whose members are elected in primary elections. Respondents also argue that Election Law § 2-118 is a vacancy filling statute, not an eligibility statute as suggested by petitioner, that the "vacancy" to which § 2-118 refers is a vacancy in the unit of representation, that a unit of representation is defined in the Election Law as "any political unit from which the members of any committee or party convention shall be elected," and that the only committees for which members are elected from units of representation are the state committee, county committee, and subcommittees of the county committee. Thus, respondents submit that § 2-118 is applicable only if there is a vacancy that has been created after the members of the committee have been elected, and only to a vacancy on a committee that has been constituted "at the close of the primary election," and as such, furnishes no guidance on any issue in this proceeding, and no suggestions as to how § 2-112 should be construed. Therefore, respondents contend that party committees such as SICC, which are created by party rule, are not governed by the Election Law's statutory restrictions and "may operate with any personnel permitted by its own rules."
Additionally, respondents maintain that petitioner has no basis to argue that the application of Election Law § 2-112 and § 2-118 to SICC is required to ensure that nominations and elections are fair, honest, and free from disorder or confusion because SICC has no role in insuring that elections are fair, honest, and free from disorder or confusion or in establishing the qualifications of electors. Furthermore, respondents assert that the First Amendment protects the rights of citizens to associate and form political parties for the advancement of common political goals and ideas, that NYSCIP formed SICC and named Klein as the chair because in the exercise of its political judgment, Klein was in the best position on a day-to-day basis to recruit the candidates, raise and deploy resources to protect vulnerable incumbents, and engage with vendors and consultants need to mount successful elections to legislative office, thereby helping the Independence Party achieve its political and policy agenda. According to respondents, prohibiting the Independence Party from naming Klein as chair of SICC places a severe burden on its associational rights under the First Amendment, and is, thus, subject to strict scrutiny.
Moreover, citing Buckley v Valeo (424 US 1 [1976] ) and acknowledging that in 2016, SICC transferred and spent money on the candidates it supported far in excess of the contribution limits applicable to such candidates and their campaign committees, respondents claim that "[p]etitioner's proposed restriction on the Independence Party's ability to further its policy goals through ... SICC would also impose a substantial burden on the Party's right to engage in core political speech, noting that a "restriction on the amount of money a person or group can spend on political communication during a campaign ... necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached." Respondents maintain that laws restricting political speech may be upheld only if they are narrowly tailored to advance a compelling state interest, and the State's interest in preventing quid pro quo corruption and the appearance of corruption is insufficiently compelling to justify an expenditure limitation. Respondents also submit that prohibiting a party committee such as SICC from engaging in core political speech solely because its officers are not enrolled in the Independence Party would constitute an impermissible restriction based on the identity of the speaker i.e., SICC with officers who are enrolled in the Independence Party and SICC with officers who are enrolled in the Democratic Party — allowing speech by the former, but not by the latter in violation of the First Amendment.
Lastly, respondents argue that an award of attorney's fees pursuant to 42 USC § 1988 "is more than justified" in this case because "[t]he request for a declaration by petitioner is ... the mirror image of a § 1983 suit by [r]espondents" and petitioner is seeking an injunction if she prevails and reserves the right to seek the imposition of fines and criminal penalties; this is a summary proceeding, not a plenary action, respondents’ motion is the functional equivalent of a counterclaim, and there was no need for respondents to attenuate this proceeding by first filing an answer and counterclaim and then moving for summary judgment; and it is petitioner, a state actor, who under color of law is seeking to deprive respondents, and particularly the Independence Party respondents, of their rights to association and free speech protected by the First Amendment and respondents who are attempting to prevent such deprivation.
Discussion
As a preliminary matter, the Court notes that on or about April 16, 2018, the IDC was formally dissolved and its members rejoined the Senate Democratic Conference, and that Senator Klein is no longer Leader of the IDC, but is now Deputy Leader of the Democratic Conference ( see State of Politics blog, Senate Dems Unified, Officially , http://www.nystateofpolitics.com/2018/04/senate-dems-unified-officially/). The Court also acknowledges receipt of correspondence from respondents’ counsel, informing the Court that on April 21, 2018, NYSCIP amended Article X, Subsection 5, paragraph c of the Independence Party's Rules to provide that "[t]he chair of [SICC] shall be the Chairman of the Independence Party of New York State Committee, who shall appoint the treasurer and other members of the committee," that on April 23, 2018, the SBOE received NYSCIP's Certificate of Adoption of Change in the Rules, and that SICC's chair and treasurer are now enrolled members of the Independence Party. These recent events, however, do not implicate the Court's jurisdiction in this matter nor do they render this proceeding moot as the actions complained of occurred prior to the IDC's dissolution and NYSCIP's amendment of the Independence Party's Rules.
Turning to respondents’ motion to dismiss, pursuant to CPLR 3211(a) (7), "[a] party may move for judgment dismissing one or more causes of action asserted against [such party] on the ground that ... the pleading fails to state a cause of action." "In reviewing the merits of a motion to dismiss for failure to state a cause of action," the Court " ‘must afford the pleadings a liberal construction, take the allegations of the [petition] as true and provide [the] [petitioner] the benefit of every possible inference’ " ( Matter of Dashnaw v Town of Peru , 111 AD3d 1222, 1225 [3d Dept 2013], quoting EBC I, Inc. v Goldman, Sachs & Co. , 5 NY3d 11, 19 [2005] ). As relevant here, declaratory judgment "is available in cases where a constitutional question is involved or the legality or meaning of a statute is in question[,] and no question of fact [is raised]" ( Matter of Morgenthau v Erlbaum , 59 NY2d 143, 150 [1983] ). The remedy is also available "when the controversy is over the validity of a statute" ( id. at 151 ).
When deciding a pre-answer motion to dismiss a declaratory judgment action, "the only issue presented for consideration is whether a cause of action for declaratory relief is set forth, not ... whether the [petitioner] is entitled to a favorable declaration" ( Matter of Dashnaw v Town of Peru , 111 AD3d at 1225 ; see North Shore Towers Apts. Inc. v Three Towers Assoc. , 104 AD3d 825, 827 [3d Dept 2013] ). However, "[w]here no question of fact is raised but only a question of law or statutory interpretation is presented on a motion to dismiss a declaratory judgment action, the court may render a determination [on the merits] and declare the rights of the parties" ( Spilka v Town of Inlet , 8 AD3d 812, 813 [3d Dept 2004] ; see Washington County Sewer Dist. No. 2 v White , 177 AD2d 204, 206 [3d Dep't 1992] ; St. Lawrence Univ. v Trustees of Theology Sch. of St. Lawrence Univ. , 20 NY2d 317, 325 [1967] ).
Here, because no issues of fact are raised and resolution of this proceeding solely involves questions of law and statutory interpretation, "a determination may properly be made on the merits" ( Washington County Sewer Dist. No. 2 v White , 177 AD2d at 206 ). Therefore, the Court denies the motion to dismiss the petition for failure to state a cause of action, and will proceed to declare the rights of parties ( see id. ; St. Lawrence Univ. v Trustees of Theology Sch. of St. Lawrence Univ. , 20 NY2d at 325 ).
Addressing the merits, "[t]he primary consideration of courts in interpreting a statute is to ascertain and give effect to the intention of the Legislature" ( Riley v County of Broome , 95 NY2d 455, 463 [2000] [internal quotation marks and citation omitted]; see Matter of DaimlerChrysler Corp. v Spitzer , 7 NY3d 653, 660 [2006] ; People v Finnegan, 85 NY2d 53, 58 [1995] ["[t]he governing rule of statutory construction is that courts are obliged to interpret a statute to effectuate the intent of the Legislature"). The best evidence of the Legislature's intent are the words of the statute ( see Riley v County of Broome , 95 NY2d at 463 ; Matter of Theroux v Reilly , 1 NY3d 232, 239 [2003] ; Majewski v Broadalbin-Perth Cent. Sch. Dist. , 91 NY2d 577, 583 [1998] [since "the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself" ]; Matter of Price Chopper Operating Co., Inc. v New York State Liquor Auth. , 52 AD3d 924, 925 [3d Dept 2008] ). " ‘As a general rule, unambiguous language of a statute is alone determinative’ " ( Matter of Theroux v Reilly , 1 NY3d at 239, quoting Riley v County of Broome , 95 NY2d at 463 ). Therefore, "[w]here the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used" ( Wise v Jennings , 290 AD2d 702, 703 [3d Dept 2002], quoting Patrolmen's Benevolent Assn. of City of New York v City of New York , 41 NY2d 205, 208 (1976) ][internal quotation marks and citations omitted]).
Guided by these principles, upon review of the clear and unambiguous language of Election Law § 2-112, and giving effecting to the plain meaning of the words used, the requirement that "[s]uch officers shall be enrolled members of the party" in subdivision two is intended to and does apply to all three types of party committees referenced in subdivision one, including "and all other committees," i.e., "such other committees as the rules of the party may allow," like SICC ( Election Law § 2-100 ). The Court rejects respondents’ claim that use of the language "and all other committees" in § 2-112 (1) does not extend the reach of § 2-112 (2) ’s party enrollment requirement to "every and any political party committee" because such language is circumscribed by the succeeding terms in that subdivision to committees that, some time "after [their] election," have to meet to elect officers, and to state and county committees.
A plain reading of the Election Law § 2-112 (1) makes clear that the language "meet and organize by electing a chairman, a secretary, a treasurer and such other officers as they may by their rules provide," was intended to apply to all three committee types preceding that language, not just elected constituted committees. For a state and a county committee, the requirement to meet and organize to elect officers must take place within the specified number of days "after its election," whereas "all other committees" are required to meet and organize to elect officers "within the time specified by the party rules." The fact that a party's rules might set forth the manner in which the officers of committees formed by party rule are elected does not remove those committees from the purview of the organizational requirement of Election Law § 2-112 or establish that the party enrollment requirement of § 2-112 (2) does not apply to the officers of such committees. And the caselaw cited by respondents, including Matter of Licitra v Power (10 AD2d 996 [2d Dept 1960] ) and Matter of Battipaglia v Exec. Comm. of Democratic County Comm. of County of Queens (9 AD2d 774 [2d Dept 1959] ), does not stand for the contrary proposition.
Nor is the Court persuaded that reference to "such officers" in relation to the filing requirement for state and county committees in subdivision one compels the conclusion that "such officers" as used in subdivision two must necessarily refer only to state and county committees. While use of the words "such officers," in relation to the filing requirement, is plainly intended to refer to the officers of those committees immediately preceding that language, namely state and county committees, the fact that the party enrollment requirement is contained in separate subdivision two in § 2-112 makes clear that subdivision two was intended to apply to the entirety of subdivision one, specifically, the officers of state committees, county committees, " and all other committees " (emphasis added). Indeed, if the Legislature intended the requirement that enrollment as member of the party apply only to the officers of state and county committees, it would have used the same limiting language it used with respect to the filing requirement in subdivision one.
Under such circumstances, the unambiguous language of the statute is determinative, and the Court need not look to the legislative history. Nevertheless, were the Court to look outside of statute's plain language, the legislative history of Election Law § 2-112 does not, in this Court's opinion, credit the respondents’ construction of the statute. Moreover, the Court is inclined to agree with petitioner that Election Law § 2-118 (1), which provides for a vacancy when, among other things, there is enrollment in another party and requires such vacancy to "be filled by the remaining members of the committee by the selection of an enrolled voter of the party qualified for election from the unit of representation in which such vacancy shall have occurred," must be read consistently with § 2-112 as applying equally to all party committees, not just to state and county committees, and serves as a means of enforcing the mandate of § 2-112 requiring officers of party committees to be enrolled members of the party.
For these reasons and notwithstanding respondents’ arguments to the contrary, the Court finds that Election Law § 2-112 and § 2-118 apply to and govern the qualifications of SICC's officers. Now, the Court must decide whether enforcement of those statues would unduly burden respondents’ rights of freedom of association protected by the First Amendment and made applicable to the State by Fourteenth Amendment of the United States Constitution.
It is without question that "[t]he First Amendment protects the rights of citizens to associate to form political parties for the advancement of common political goals and ideas" ( Timmons v Twin Cities Area New Party , 520 US 351, 357 [1997] ). As a result, a political party's "discretion in how to organize itself, conduct its affairs, and select its leaders" enjoys constitutional protection ( Eu v San Francisco County Democratic Cent. Comm. , 489 US 214, 230 [1989] ; see Timmons v Twin Cities Area New Party , 520 US at 358 ; Colorado Republican Fed. Campaign Commn. v Fed. Election Comm. , 518 US 604, 616 [1996] ; Tashjian v Republican Party of Connecticut , 479 US 208, 224 [1986] ). It is equally clear, however, that "[s]tates may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election- and campaign-related disorder" ( Timmons v Twin Cities Area New Party , 520 US at 358 ; see Burdick v Takushi , 504 US 428, 433 [1992] ; Tashjian v Republican Party of Connecticut , 479 US at 217 ; Anderson v Celebrezze , 460 US 780, 788 [1983] ; Storer v Brown , 415 US 724, 730 [1974] ). Furthermore, "[a]ll election laws impose at least some burden on the expressive and associational rights protected by the First Amendment" ( Maslow v Bd. of Elections in City of New York , 658 F3d 291, 296 [2d Cir. 2011] ; see Burdick v Takushi , 504 US at 433 ; Anderson v. Celebrezze , 460 US at 788 ).
There is "[n]o bright line [test] [that] separates permissible election-related regulation from unconstitutional infringements on First Amendment freedoms" ( Timmons v Twin Cities Area New Party , 520 US at 359 ; see Storer v Brown , 415 US at 730 ). Instead, a court must resolve constitutional challenges to a specific provisions of a state's election laws "by an analytical process that parallels its work in ordinary litigation" ( Anderson v Celebrezze , 460 US at 789 ). Therefore, when deciding whether a state's election laws violate First and Fourteenth Amendment associational rights, the Court must "weigh the ‘character and magnitude’ of the burden the [s]tate's rule imposes on those rights against the interests the [s]tate contends justify that burden, and consider the extent to which the [s]tate's concerns make the burdens necessary" ( Timmons v Twin Cities Area New Party , 520 US at 358, quoting Burdick v Takushi , 504 US at 434 ; Anderson v Celebrezze , 460 US at 789 ). Toward that end, "[r]egulations that impose severe burdens on associational rights must be narrowly tailored to serve a compelling state interest" ( Clingman v Beaver , 544 US 581, 586 [2005], citing Timmons v Twin Cities Area New Party , 520 US at 358 ; Burdick v Takushi , 504 US at 434 ; Norman v Reed , 502 US 279, 289 [1992] ). "However, when regulations impose lesser burdens, ‘a [s]tate's important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions’ " ( Clingman v. Beaver , 544 US at 586-587, quoting Timmons v Twin Cities Area New Party , 520 US at 358 ; see Anderson v Celebrezze , 460 US at 788 ).
Initially, the Court declines to address respondents’ argument, raised for the first time in their reply papers, that enforcement of Election law § 2-112 and § 2-118 would impose a substantial burden on the Independence Party's right to engage in core political speech ( see People v Jones , 300 AD2d 1119, 1120 [4th Dept 2002] ; People v Abreu , 248 AD2d 124, 125 [1st Dept 1998] ; People v Clanton , 204 AD2d 810, 812 [3d Dept 1994] ). "The practice of raising a new substantive issue in a reply brief at a time when an adversary can no longer respond is improper" ( People v Minota , 137 AD2d 837, 838 [2d Dept 1988] ). Turning to the claims that were properly raised, the Court concludes that Election Law § 2-112 and § 2-118, as applied, would not violate respondents’ associational rights under the First and Fourteenth Amendments of the United States Constitution.
The IDC respondents’ rights to associate with the political party of their choice would not be impaired by the application of §§ 2-112 and 2-118. Indeed, the IDC respondents have exercised their rights to association with a political party, and have chosen to associate with the Democratic Party, and nothing in Election Law § 2-112 and § 2-118 prevents the IDC respondents from being officers of a party committee of the Democratic Party. Yet, the IDC respondents want to be officers of a party committee of the Independence Party without associating with that Party in any formal sense, thereby allowing their legislative conference to benefit from certain privileges in the Election Law, specifically those under Article 14 governing campaign finances, reserved solely to party committees.
However, the Court is not persuaded that a legislative "conference," like the IDC, created by virtue of internal legislative rules, is entitled to the same benefits under the Election Law and same protections guaranteed by the United States Constitution as a political party. As noted by the petitioner, a legislative conference has no role in the election process. More particularly, it does not build a party, nominate candidates, or have a presence on the ballot. Nor does it hold primary elections or undertake any of the other quasi-public functions entrusted to political parties under the Election Law. In addition, a legislative conference is not recognized in the Election Law, and the Election Law does not contemplate that a legislative conference shares the same status as and benefits of a political party. Furthermore, the Court has been unable to locate any First Amendment jurisprudence that would support a finding that, in these circumstances, a legislative conference such as the IDC has the same constitutionally protected associational rights as a political party.
Moreover, in Clingman v. Beaver , the Supreme Court, upholding Oklahoma's semi-closed primary system wherein a political party may invite only its own party members and voters registered as independents to vote in the party's primary, found that "a voter who is unwilling to disaffiliate from [one] party to vote in [another party's] primary forms little ‘association’ with the [other party] or the [other party] with him" ( 544 US at 589 ). The Supreme Court noted that "the issue [was] not dual associations ... but seemingly boundless ones," and explained that "[i]f the concept of freedom of association is extended to every voter's desire at the ballot box, it ceases to be of any analytic use" ( id. [internal quotation marks and citation omitted]). The Court went further to hold that even if Oklahoma’ semi-closed primary system burdened an associational right, the burden was not severe, and was justified by the State's important regulatory interests in preserving political parties as viable and identifiable interest groups, enhancing parties’ electioneering and party building efforts, and guarding against party raiding and sore loser candidacies.
Here, even if enforcement of Election Law § 2-112 and § 2-118 could be found to burden the associational rights of the IDC respondents, the Court finds such burden to be minimal, at best, and justified by the State's important, valid, and nondiscriminatory regulatory interests in preventing the circumvention of its campaign finance laws and in preserving the integrity of identifiable political parties by ensuring that party factions cannot act as their own political party outside of the party organization. Finally, "as non-members," the IDC respondents "are in no position to assert the [Independence Party's] associational rights" ( Maslow v Bd. of Elections in City of New York , 658 F3d at 297, citing New York State Bd. of Elections v Lopez Torres , 552 US 196, 203-204 [2008] and California Democratic Party v Jones , 530 US 567, 573, n.5 [2000] ).
Furthermore, enforcement of Election Law § 2-112 and § 2-118 as against NYSCIP and SICC would not interfere with the Independence Party's rights to organize and structure itself, determine with whom the Party should associate to advance its agenda, and decide the most effective way to achieve the Party's policy, political, and legislative goals. Nor would application of those statutes preclude the Party from advancing its policies and goals of maintaining its status as a political party by maximizing its vote, and increasing its ability to influence the legislative process. As petitioner correctly argues, nothing in §§ 2-112 and 2-118 prevent the Independence Party from publicly allying with the IDC; from nominating IDC members as its candidates or spending money to support them; from establishing its campaign committees as party committees and using those committees to support its candidates who are members of the IDC; or from forming SICC and SICC Housekeeping and registering them with the SBOE. The only effect of § 2-112 and § 2-118 is to require that SICC's officers be enrolled members of the Independence Party, and nothing in those statutes prevents the members of the IDC seeking to serve as SICC's officers from switching their party registration to the Independence Party, as was done by Kase in June 2017.
Furthermore, regulations requiring individuals to disaffiliate with one party in order to associate with another party have been held by the Supreme Court to be constitutional ( see Storer v Brown , 415 US 724, 730 [1974] ; Timmons v Twin Cities Area New Party , 520 US 357 [1997]; Clingman v. Beaver , 544 US 581 [2005] ).
In Storer v. Brown , applying a strict scrutiny standard, the Supreme Court upheld, as constitutional, a California statute that denied access to the ballot to any independent candidate who had voted in a party primary or had been registered as a member of a political party within one year prior to the immediately preceding primary election. In rendering its determination, the Supreme Court recognized that the disaffiliation requirement was "expressive of a general state policy aimed at maintaining the integrity of the various routes to the ballot" and "involve[d] no discrimination against independents" ( 415 US at 733 ), and concluded that it "further[ed] the State's interest in the stability of its political system" by preventing "splintered parties and unrestrained factionalism," which the Court found to be not only permissible, but compelling and outweighed the interest of the candidate and his supporters in making a late rather than early decision to seek independent ballot status ( id. at 736 ). The Court also found no "reason for concluding that the device California chose, [the disaffiliation requirement], was not an essential part of its overall mechanism to achieve its acceptable goals" ( id. ).
Further, in Timmons v Twin Cities Area New Party , employing a rational basis analysis, the Supreme Court upheld, as constitutional, Minnesota's antifusion laws, which prohibit candidates from appearing on the ballot as a candidate of more than one political party. Rejecting New Party's claim that it should be permitted to have another party's candidate run on its ballot line, the Court found that while New Party, and not someone else, unquestionably had the right to select its own candidate — "standard bearer" — "[i]t does not follow ... that a party is absolutely entitled to have its nominee appear on the ballot as the party's candidate" ( 520 US at 359 ). The Court explained that "[a] particular candidate might be ineligible for office, unwilling to serve, or ... another party's candidate" ( id. ; citing Burdick v Takushi , 504 US at 440, n 10 ["limiting the choice of candidates to those who have complied with state election law requirements is the prototypical example of regulation that, while it affects the right to vote, is eminently reasonable"] and Anderson v Celebrezze , 460 US at 792, n 12 ["[a]lthough a disaffiliation provision may preclude voters from supporting a particular ineligible candidate, they remain free to support and promote other candidates who satisfy the State's disaffiliation requirements"]).
The Supreme Court, in Timmons , "concluded that the burdens Minnesota impose[d] upon [New] [P]arty's First and Fourteenth Amendment associational rights — though not trivial — were not severe" because the antifusion laws did not restrict the Party's ability to endorse, support or vote for anyone it liked or directly limit the Party's access to the ballot; only slightly limited the Party's ability to send a message to the voters and its preferred candidates; and was silent on the Party's internal structure, governance, and policymaking (520 US at 363 ). Instead, according to the Court, the laws "reduced the universe of potential candidates who [could] appear on the ballot as [New Party's] nominee by ruling out those few individuals who both ha[d] already agreed to be another party's candidate, and also, if forced to choose, themselves preferred that other party" ( id. ). Finding its determination in Storer relevant, the Court further concluded that the burdens imposed on New Party's associational rights by the fusion ban were justified by the "correspondingly weighty" valid state interests in ballot integrity and political stability ( id. at 369 ).
Here, the Independence Party undoubtedly has a First Amendment right to organize and structure itself, determine with whom the Party should associate to advance its agenda, and decide the most effective way to achieve the Party's policy, political, and legislative goals. However, it does not follow that by virtue of that constitutional protection, the Independence Party has a right to permit individuals who do not wish to formally associate with the Party in any constitutional sense to serve as officers of a Party committee, with the ability to control the committee's money, strategy, fundraising, and expenditures and to receive benefits afforded exclusively to party committees under the State's campaign finance laws. Notably, in Clingman v Beaver , the Supreme Court stated that "[i]f a party may be prevented from associating with the candidate of its choice — its desired ‘standard bearer’ ... because the candidate refuses to disaffiliate from another political party, a party may also be prevented from associating with a voter who refuses to do the same" ( 544 US at 590 ).
Furthermore, unlike the election laws struck down by the Supreme Court in Eu v San Francisco County Democratic Cent. Comm. and Tashjian v Republican Party of Connecticut as unconstitutional, Election Law § 2-112 and § 2-118, as applied, do not "prevent the [Independence Party] from taking internal steps affecting [its] own process for the selection candidates" ( Tashjian v Republican Party of Connecticut , 479 US 208, 224 [1986], quoted in Eu v San Francisco County Democratic Cent. Comm. , 489 US 214, 227 [1989] ). The Independence Party and its members remain free to govern themselves internally and to communicate with the public as they wish. As such, the burdens imposed on their associational rights by the requirement that Party committee officers be enrolled members of the Party "though not trivial — are not severe" ( Timmons , 520 US at 363 ), and "advance[ ] a number of [the State's] regulatory interests that th[e] [Supreme] Court [has] recognize[d] as important: It preserves political parties as viable and identifiable interest groups, ... enhances parties’ electioneering and party building efforts, ... and guards against party raiding and ‘sore loser’ candidacies" ( Clingman v Beaver , 544 US at 593-594 [internal quotation marks, brackets, and citations omitted]), by ensuring that Party's committees are actually run by the Party, not a conference of the Democratic Party, and serve the Independence Party's interests.
Moreover, the Supreme Court has held that "preventing corruption or the appearance of corruption are ... legitimate and compelling government interests ... for restricting campaign finances" ( Fed. Election Commn. v Natl. Conservative Political Action Comm. , 470 US 480, 496-497 [1985] ; see McCutcheon v Fed. Election Commn. , 134 S Ct 1434, 1445 [2014] ). In this regard, the Court has "recognized that government has a valid anticorruption interest in preventing the circumvention of contribution limits" ( Hispanic Leadership Fund, Inc. v Walsh , 42 F Supp 3d 365, 377 [NDNY 2014], citing Federal Election Commn. v. Colorado Republican Fed. Campaign Comm. , 533 US 431, 433 [2001] ["circumvention is a valid theory of corruption"]), and has upheld, as constitutional, contribution limits where "a [s]tate demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms" ( Buckley v Valeo , 424 US 1, 25 [1976] ; see McCutcheon v Fed. Election Comm'n , 134 S. Ct. at 1444 ).
The Supreme Court has drawn a distinction between limits on contributions and limits on independent expenditures. The Court has held that contribution limits are "only a marginal restriction upon the contributor's ability to engage in free communication" because "[a] contribution serves as a general expression of support for the candidate and [the candidate's] views, but does not communicate the underlying basis for the support," and "[t]he quantity of communication by the contributor does not increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated symbolic act of contributing" ( Buckley v Valeo , 424 US at 20-21 ; see Hispanic Leadership Fund, Inc. v Walsh , 42 F Supp 3d at 376 ). As such, "contribution limitations are subject to a less rigorous standard of review" ( Hispanic Leadership Fund, Inc. v Walsh , 42 F Supp 3d at 376 ). Expenditure limitations, on the other hand, have been held by the Court to "impose significantly more severe restrictions on protected freedoms of political expression and association," and are, thus, subject to strict scrutiny because they "necessarily reduce[ ] the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached" ( Buckley v Valeo , 424 US at 23, 44-45 ; see Hispanic Leadership Fund, Inc. v Walsh , 42 F Supp 3d at 376-377 ). Because the petitioner's papers do nothing to address this distinction as it relates to this proceeding, the Court's review is limited to the State's interest in preventing the circumvention of contribution limits in its application of Election Law §§ 2-112 and 2-118.
Here, the requirement that officers of party committees be enrolled members of the party serves the State's "sufficiently important interest" in preventing quid pro quo corruption or its appearance by ensuring that campaign contribution limits are not circumvented. The State gives party committees unique privileges in the Election Law not available to any other type of political committee. To allow the Independence Party to turn over a party committee to members of the IDC, enrolled Democrats, would open the door to political parties allowing other independent bodies or special interest groups, regardless of party affiliation, to control party committees, have their own housekeeping accounts, and receive benefits afforded solely to party and constituted committees under the Election Law. Such a result was clearly not intended by the Legislature, and would render the contribution limits, among other things, meaningless.
For these reasons, the Court finds that Election Law § 2-112 and § 2-118 as applied to the respondents are not unconstitutional, and may be properly enforced against them. As such, respondents’ claim under 42 USC § 1983, to the extent that they had one, and their request for attorney's fees pursuant to 42 USC § 1988 based on that claim have been rendered moot and are denied on that ground.
Any remaining arguments not specifically addressed herein have been considered and found to be without merit, or need not be reached.
Accordingly, it is hereby
ORDERED , the respondents’ motion to dismiss and the relief requested therein is denied for the reasons stated herein; and it is further
ORDERED AND ADJUDGED , that the petition is granted only to the extent that it is ADJUDGED AND DECLARED , that Election Law § 2-112 and § 2-118 apply to and govern SICC's officers, and that SICC's officer must be enrolled members of the Independence Party; and it is further
ADJUDGED AND DECLARED , that Election Law § 2-112 and § 2-118, as applied, do not unconstitutionally infringe upon respondents’ rights of association protected by the First and Fourteenth Amendments of the United States Constitution; and it is further
ORDERED AND ADJUDGED , that respondents must take whatever actions are necessary to comply with the Election Law in light of this Decision and Order/Judgment.
This memorandum constitutes the Decision and Order/Judgment of the Court. The original Decision and Order/Judgment is being returned to the petitioner. A copy of this Decision and Order/Judgment together with all other papers in this proceeding are being forwarded to the Albany County Clerk for filing. The signing of this Decision and Order/Judgment and delivery of the copy of the same to the County Clerk shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that rule with respect to filing, entry, and notice of entry of the original Decision and Order/Judgment.
SO ORDERED, ADJUDGED, AND DECLARED .
Papers Considered: 1. Amended Order to Show Cause (O'Connor, J.), dated August 14, 2018; Verified Petition, dated August 8, 2017, with Exhibits A-E annexed, including Affirmation of Carla V. DiMarco, Esq., dated August 8, 2017;
2. Notice of Motion to Dismiss; Affidavit in Support of Notice of Motion to Dismiss of Frank M. Mackay, sworn to September 13, 2017; Affidavit in Support of Notice of Motion to Dismiss of John L. Kase, sworn to September 8, 2017; Exhibits A-E; Respondent's Memorandum of Law in Support of Their Notice of Motion to Dismiss Petition, for Issuance of Declaration and for an Award of Counsel Fees;
3. Petitioner's Affirmation in Opposition to Respondent's Motion to Dismiss (Carla V. DiMarco, Esq.), dated October 2, 2017; Exhibit A; Petitioner's Memorandum of Law in Opposition to Respondent's Motion to Dismiss;
4. Letter from Andrea Oser, Deputy Solicitor General, dated October 4, 2017;
5. Respondent's Reply Memorandum of Law in Support of Their Notice of Motion to Dismiss Petition, for Issuance of Declaration and for an Award of Counsel Fees;
6. Letter from Lawrence A. Mandelker, Esq., dated May 7, 2018, with unmarked attachments; and
7. Email from Carla V. DiMarco, Esq., dated May 7, 2018.