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CUNNINGHAM v. BRONX CTY. DEMOCRATIC EXEC. COMM.

April 22, 1976

Patrick J. CUNNINGHAM, Plaintiff,
v.
BRONX COUNTY DEMOCRATIC EXECUTIVE COMMITTEE et al., Defendants



The opinion of the court was delivered by: TENNEY

TENNEY, District Judge.

 Plaintiff Cunningham, a member and the duly elected chairman of the Bronx County Democratic Executive Committee ("the County Committee"), and a member of the Executive Committee and chairman of the New York State Democratic Committee ("the State Committee"), has instituted this action for a preliminary and permanent injunction and declaratory judgment, *fn1" restraining the enforcement, operation and execution of ┬ž 22 of the Election Law of the State of New York and declaring the unconstitutionality of the said statute as violative of the First, Fifth and Fourteenth Amendments to the Constitution of the United States and the invalidity of any action taken under the said statute with respect to plaintiff.

 On April 13, 1976, by order to show cause alleging such unconstitutionality, Cunningham moved for the convening of a three-judge court and a temporary restraining order against defendants. After hearing the parties on that date, the single district judge found that plaintiff had raised issues that were neither insubstantial nor obviously without merit and accordingly issued a temporary restraining order and requested the convening of a three-judge court. *fn2" Pursuant to the April 14, 1976 order of Chief Judge Irving R. Kaufman the motion for injunctive relief was submitted to this statutory three-judge court which heard argument on April 19, 1976. At that time, the Court ordered the trial of the action on the merits advanced and consolidated with the application for injunctive relief pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure.

 It appears that on December 29, 1975 Cunningham was subpoenaed to appear and testify before the Extraordinary Special Grand Jury for Bronx County. Thereafter, he unsuccessfully moved in the state court to quash the subpoena upon the ground, among others, upon which relief is sought in the instant action. Such motion was denied by the Supreme Court on February 23, 1976 and such order of denial was affirmed by the state appellate courts.

 Following such affirmance and on April 12, 1976 Cunningham appeared before the said grand jury pursuant to the subpoena. On that date he was asked to execute a waiver of immunity from prosecution in accordance with Section 22 which he declined to do. Section 22 reads as follows:

 
"If any party officer shall, after lawful notice or process, wilfully refuse or fail to appear before any court or judge, grand jury, legislative committee, officer, board or body authorized to conduct any hearing or inquiry concerning the conduct of his party office or the performance of his duties, or having appeared, shall refuse to testify or answer any relevant question, or shall refuse to sign a waiver of immunity against subsequent criminal prosecution, his term or tenure of office shall terminate, such office shall be vacant and he shall be disqualified from holding any party or public office for a period of five years."

 There is no dispute that the grand jury was empowered to inquire concerning Cunningham's conduct of his party offices or the performance of his duties as a party officer. *fn3"

 Cunningham, supported by the New York Civil Liberties Union, as amicus curiae, claims that the statute, insofar as it would remove him from his various party offices, impinges upon the First Amendment rights of political association of the Democratic Party and its members, which Cunningham has vicarious standing to assert. He further contends that his refusal to execute a waiver of immunity from prosecution is a valid exercise of his rights under the Fifth and Fourteenth Amendments. In sum, plaintiff contends that, since Section 22 would operate to remove him from his present party offices and to bar him from holding party or public office for a period of five years as a sanction for a valid exercise of his constitutionally guaranteed rights, the provision is invalid as to him as violative of the First, Fifth, and Fourteenth Amendments to the Constitution. In addition, plaintiff contends that since the Section is self-executing, it causes him immediate and irreparable harm for which no adequate remedy at law exists.

 Since we find Section 22 violative of Cunningham's rights under the Fifth and Fourteenth Amendments, *fn4" we do not pass upon the First Amendment claim. Nor have we considered the due process implications of Slochower v. Board of Higher Education of New York City, 350 U.S. 551, 76 S. Ct. 637, 100 L. Ed. 692 (1956).

 Plaintiff relies on a line of cases emanating from the United States Supreme Court beginning with Garrity v. New Jersey, 385 U.S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562 (1967), and including Spevack v. Klein, 385 U.S. 511, 87 S. Ct. 625, 17 L. Ed. 2d 574 (1967); Gardner v. Broderick, 392 U.S. 273, 88 S. Ct. 1913, 20 L. Ed. 2d 1082 (1968); Uniformed Sanitation Men v. Sanitation Commissioner, 392 U.S. 280, 88 S. Ct. 1917, 20 L. Ed. 2d 1089 (1968); and Lefkowitz v. Turley, 414 U.S. 70, 94 S. Ct. 316, 38 L. Ed. 2d 274 (1973). Plaintiff claims that the statutes at issue in each of these cases, all of which were struck down, are analogous to the statute in the instant case in that each conditioned an individual's continuation as a public employee or a public contractor upon the individual's waiver of his privilege against self-incrimination. *fn5"

 Defendant, Louis J. Lefkowitz, the Attorney General of the State of New York, contends that the interest of the State in preserving the integrity of its political system outweighs plaintiff's interest in his offices and his assertion of his constitutional rights. Defendant's argument begins with the proposition that each of the several states retains power to "establish and maintain" its own political system in accordance with the Tenth Amendment. Essential to the exercise of this power is the need for the State to demand from party officers both integrity and the appearance thereof. Defendant claims that since the offices held by Cunningham are creations of State law, and since the offices carry with them tremendous responsibility for the selection of candidates for political office, they constitute an important part of the overall political system of the State. Thus, defendant would have this Court hold that the interest of the State in maintaining the integrity of party office and, in fact, the political system of the State, predominates over the constitutional rights of the individual.

 Defendant would distinguish the instant situation from that existing in the many cases cited by plaintiff on several grounds.

 The initial ground upon which the State seeks to distinguish the instant case is the applicability of the statute. Defendant contends that in each of the cases cited by plaintiff the statute was uniformly applicable to all citizens while the statute in the instant case applies to a relatively limited and select number of persons.

 Secondly, the State would distinguish the instant situation based upon the sensitivity of the positions held by persons affected by the statute. While the cases cited by plaintiff dealt with public employees and public contractors, the sensitivity and importance of the positions held by party officers must lead, defendant contends, to the conclusion ...


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