The opinion of the court was delivered by: ZAVATT
ZAVATT, Senior District Judge.
This is an action brought by Edward Lecci, a police officer, individually and as a representative of the Nassau County Patrolmen's Benevolent Association, against the District Attorney and the Commissioner of Police of Nassau County to declare § 426(3) of the New York Election Law, McKinney's Consol. Laws, c. 17 unconstitutional as being in violation of the First Amendment of the Constitution.
Section 426(3) provides as follows:
"§ 426. Misdemeanors concerning police commissioners or officers or members of any police force
Any person who, being a police commissioner or an officer or member of any police force in this state:
3. Contributes any money, directly or indirectly, to, or solicits, collects or receives any money for, any political fund, or joins or becomes a member of any political club, association, society or committee,
Is guilty of a misdemeanor."
The defendants' amended answer is a general denial of all material allegations of the complaint, except those which identify the plaintiff as a police officer and the defendants as holders of their respective titles and offices. It also pleads lack of standing, lack of case or controversy and res judicata as complete affirmative defenses. The defendants have moved for summary judgment pursuant to Fed. R. Civ. P. 56(b). The Attorney General of the State of New York, upon invitation of the court, see New York Executive Law, McKinney's Consol. Laws c. 18, § 71, Financial Services, Inc. v. Ferrandina, 474 F.2d 743 (2d Cir., 1973), has filed a memorandum in support of the defendants' motion for summary judgment.
Standing; Case or Controversy
Defendants have raised the issues of plaintiff's standing to maintain this action and, since no official action has been taken or threatened against the plaintiff, whether a case or controversy exists. In First Amendment cases, the standing requirement is less stringent in order to avoid a possible "chilling effect" on fundamental rights. Gooding v. Wilson, 405 U.S. 518, 92 S. Ct. 1103, 31 L. Ed. 2d 408 (1972); Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965); Muller v. Conlisk, 429 F.2d 901 (7th Cir. 1970); Gray v. City of Toledo, 323 F. Supp. 1281 (N.D. Ohio 1971). In Muller v. Conlisk, supra, the court, concerned with a police officer's standing to challenge the constitutionality of his department's disciplinary rule 31, stated:
"Rule 31 stands as a 'threat of sanctions' intended to inhibit the right of policemen to speak as freely as other citizens on matters of public concern. If, as alleged, it sweeps too broadly, it has the effect of inhibiting constitutionally protected speech. Plaintiff is a member of the group at which Rule 31 is directed and, as such, his right to speak is presently subject to curtailment by Rule 31. This is sufficient to establish his standing to challenge the rule quite apart from any specific sanction which has been imposed upon him for its violation." Id. 429 F.2d at 903.
The mere threat that sanctions may be imposed for violating the law in question is sufficient present infringement to justify redress in the courts. See, e.g. Zwickler v. Koota, 389 U.S. 241, 88 S. Ct. 391, 19 L. Ed. 2d 444 (1967); Dombrowski v. Pfister, supra ; Baggett v. Bullitt, 377 U.S. 360, 84 S. Ct. 1316, 12 L. Ed. 2d 377 (1964); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S. Ct. 631, 9 L. Ed. 2d 584 (1963); NAACP v. Button, 371 U.S. 415, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963); Gray v. City of Toledo, supra.3
A case or controversy does exist as to which the plaintiff has standing to challenge the constitutionality of this section of the New York Election Law.
The defendants contend that this case is governed by Ex Parte Curtis, 106 U.S. 371, 1 S. Ct. 381, 27 L. Ed. 232 (1882) and McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 29 N.E. 517 (1892), as well as their progeny in the Supreme Court, particularly United Public Workers v. Mitchell, 330 U.S. 75, 67 S. Ct. 556, 91 L. Ed. 754 (1947) (hereinafter Mitchell).
In Ex Parte Curtis, the Supreme Court sustained the conviction of an employee of the United States for having received money for political purposes from other employees of the Government, in violation of a federal statute which antedated the Hatch Act. Under that statute, Chapter 287, 19 St. 143, 1 Supp. Rev. St. 245, political assessments upon officeholders were prohibited, as well as the requesting, giving to or receiving of a contribution for political purposes as between federal officers or employees. The majority opinion invoked the "legislative reasonableness" test, and held the statute constitutional since its "evident purpose . . . to promote efficiency and integrity in the discharge of official duties" was "within the just scope of legislative power." 1 S. Ct. at 384.
The dissenting opinion of Mr. Justice Bradley in Ex Parte Curtis, written ten years before Judge Holmes' opinion in McAuliffe, supra, seems prophetic in light of the subsequent erosion of the "no right to public employment" principle:
"[This law], in effect, [makes] it a condition of accepting any employment under the government, that a man shall not, even voluntarily and of his own free will, contribute in any way through or by the hands of any other employe of the government to the political cause which he desires to aid and promote. I do not believe that congress has any right to impose such a condition upon any citizen of the United States. The offices of the government do not belong to the legislative department to dispose of on any conditions it may choose to impose.
. . . Every person accepting any, the most insignificant, employment under the government must withdraw himself from all societies and associations having for object the promotion of political information or opinions. . . . Congress might just as well, so far as the power is concerned, impose as a condition of taking any employment under the government, entire silence on political subjects, and a prohibition of all conversation thereon between government employees." 106 U.S. at 376-377, 1 S. Ct. at 386-387.
The view which Mr. Justice Bradley rejected in Ex Parte Curtis was articulated pithily by Judge Oliver Wendell Holmes (then Chief Judge of the Supreme Court of the Commonwealth of Massachusetts) in McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 29 N.E. 517 (1892), decided more than eighty years ago, long before the twentieth-century liberalization of the First Amendment rights of public employees.
In McAuliffe, Judge Holmes articulated the "no right to public employment" principle and upheld the Mayor's decision to discharge a policeman for having solicited contributions for a political purpose, an act contrary to police regulations. In an oft-quoted passage, Holmes wrote: "[the] petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." Id. at 220, 29 N.E. at 517. That crisp aphorism delimited the free speech rights of government employees for half a century. Ironically, twenty years later, in Hyde v. United States, 225 U.S. 347, 391, 32 S. Ct. 793, 811, 56 L. Ed. 1114 (1912), Mr. Justice Holmes commented: "It is one of the misfortunes of the law that ideas become encysted in phrases and thereafter for a long time cease to provoke further analysis." Although the McAuliffe principle has not survived as a principle of law, it has done little to advance First Amendment rights, particularly for policemen. It seems to be well-regarded, even today, by a number of police departments which still maintain rigid regulations prohibiting critical speech by policemen against their department, its leaders and its policies. See generally, Note, The Policeman: Must He Be a Second Class Citizen with Regard to his First Amendment Rights? 46 N.Y.U.L. Rev. 536 (1971); Moody, Extending the Shield of the First Amendment to the Outspoken Policeman, 8 Crim. L. Bull. 171 (1972).
In Mitchell, the Supreme Court upheld the constitutionality of a portion of the Hatch Act, now codified as 5 U.S.C. ...