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July 20, 1978

NEW YORK CIVIL LIBERTIES UNION, INC., Plaintiff, against REMO J. ACITO, et al., Defendants.

The opinion of the court was delivered by: MOTLEY


The plaintiff in this action is the New York Civil Liberties Union, Inc. (NYCLU), a New York corporation and affiliate of the American Civil Liberties Union (ACLU). The defendants are the Commissioners of the New York State Board of Election sued both in their individual and official capacities. The essence of the Amended Complaint is the NYCLU's claim that its members' First Amendment *fn1" rights to freedom of speech and association are abridged by New York State Election Law § 14-100(a) which defines "political committee" for the purpose of reporting campaign receipts and expenditures. *fn2" Plaintiff moves for summary judgment, Rule 56, Fed.R.Civ.P., seeking a declaratory judgment *fn3" that § 14-100(a) is unconstitutional on its face or, alternatively, unconstitutional as applied to plaintiff. Defendants cross-move for summary judgment dismissing the complaint. The court holds that § 14-100(a) is unconstitutionally overbroad in that it imposes excessive restraints on the exercise of First Amendment rights under the Constitution.

 This court has jurisdiction under 28 U.S.C. § 1343 since plaintiff claims a violation of its members' rights under 42 U.S.C. § 1983. A declaratory judgment is sought pursuant to 28 U.S.C. § 2201. A single judge may appropriately decide the constitutionality of a state statute when only declaratory, as opposed to injunctive relief is sought. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 155, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963).

 Section 14-100(a) reads in pertinent part as follows:

. . . "political committee" means any corporation aiding or promoting and any committee or combination of one or more persons Operating or co-operating to aid or to promote the success or defeat Of a political party or principle, or Of any question submitted to vote at a public election; or to aid or take part in the election or defeat of a candidate for public office or to aid or take part in the election or defeat of a candidate for nomination at a primary election or convention, including all proceedings prior to such primary election, or of a candidate for any party position voted for at a primary election, or to aid or defeat the nomination by petition of an independent candidate for public office . . . . (relevant portion underscored)

 The statutory scheme operates such that when an organization or person is deemed a "political committee" as defined in § 14-100(a), that organization or person is then subject to the various record-keeping and reporting provisions of Article 14 of the Election Law (Article 14).

 Plaintiff argues that, while reporting and disclosure provisions may be constitutional as a general proposition, it is unconstitutional to subject Certain persons or organizations, such as the NYCLU, to the requirements of Article 14. The defendants do not dispute that the NYCLU is a political committee as defined by § 14-100(a).

 Factual Background

 In the fall of 1975 the voters of New York State were asked to vote on a proposed amendment to the New York State Constitution known as the Equal Rights Amendment (ERA). Under § 1-104(17) of the Election Law (formerly § 266(3)), the ERA was a "question" for the purposes of § 14-100(a). The NYCLU had worked actively in support of the ERA contributing both personnel and money in an effort to win votes in favor of the amendment. The money spent on the amendment campaign was drawn from the general fund of the NYCLU. The staff members who worked on the campaign were not hired specifically for the purpose but did other work for the NYCLU as well. Plaintiff alleges, and the defendants do not dispute, that the activities of plaintiff with respect to the 1975 ERA campaign would make the NYCLU a political committee under § 14-100(a).

 As a political committee, the NYCLU has the following general obligations under the Election Law:

 1) The treasurer of the political committee must file sworn statements with the State Board of Elections (Board) stating all the receipts, expenditures and liabilities of the committee. The information must include, among other things, the specific amounts received, the names and addresses of the contributors and the date the contributions were received. Similarly detailed information must be supplied as to expenditures. With certain exceptions, expenditures of less than $ 10 and receipts of $ 50 or less need not specifically be accounted for. Section 14-102 (formerly § 473).

 2) The treasurer of the political committee must keep detailed, bound accounts of all receipts and expenditures for any given election for a period of five years after the last statement was filed with respect to that election. Any receipts or expenditures in excess of $ 100 must be by check, draft or other instrument. Section 14-118 (formerly § 481).

 3) All contributions shall be in the true name of the contributor. Section 14-120 (formerly § 482).

 4) A person who fails to file a statement is subject to a maximum civil penalty of $ 100. If the failure to file was knowing and wilful, the person is guilty of a misdemeanor. Section 14-126 (formerly § 485).

 The NYCLU argues that the above provisions of the Election Law are generally burdensome and violate the First Amendment rights of members of organizations such as itself which are not traditionally regarded as political organizations, but which are organizations designed to educate the public on a variety of both political and non-political topics. It is, of course, undisputed that these organizations which seek to convey various ideas to the public enjoy the protection of the First Amendment. The question is whether these organizations in general, and plaintiff in particular, can be obligated to comply with the requirements of the New York Election Law before voicing their opinions on any "question" which is before the voters of this State at an election.

 Plaintiff argues that the statute defining "political committee" may be held to be unconstitutional on any one of three independent theories: First, the definition of "political committee" is overbroad since it would include organizations whose Primary purpose is not to influence the outcome of any given election. Since the governmental interest is minimal in applying the provisions of the Election Law to essentially non-political organizations such as these, the Act cannot be constitutionally applied to these groups where the application would violate their members' First Amendment rights.

 Second, the definition is unconstitutionally vague in that it may include some organizations (subjecting them to civil or criminal penalties) even though it is not apparent to those organizations that their activities come within § 14-100(a).

 Finally, the NYCLU argues that the statute is unconstitutional as applied to the NYCLU since it is uncontroverted that disclosing the names of NYCLU contributors may discourage future contributions to the organization thus chilling its members' First Amendment activities.

 Defendants claim that the issue is a far narrower one than that posed by plaintiff. They first note that the Election Law serves the State's compelling interest in assuring that elections are free of corruption and improper influence. The issue which defendants would have the court decide is whether it is constitutional to require the NYCLU to report expenditures made in support of the ERA vote and to report Only those contributions which were "earmarked" for political purposes.

 Preliminary Issues

 On April 6, 1978 the court heard oral argument on this motion. At that time, the court requested that the parties submit supplemental briefs on two issues not raised in the original briefs: 1) whether there is a case or controversy and 2) whether this court should abstain from deciding this case in order to give the state courts an opportunity to first decide the questions involved.

 1. Case or Controversy

 In order for this court to have jurisdiction over this action, which seeks a declaratory judgment, there must be a case or controversy. United States Constitution, Art. III, § 2. The Supreme Court has defined "controversy" in the context of a suit seeking declaratory relief:

A "controversy" in this sense must be one that is appropriate for judicial determination. A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. Where there is such a concrete case admitting of an immediate and definitive determination of the legal rights of the parties in an adversary proceeding upon the facts alleged, the judicial function may be appropriately exercised although the adjudication of the rights of the litigants may not require the award of process or the payment of damages. And as it is not essential to the exercise of the judicial power that an injunction be sought, allegations that irreparable injury is threatened are not required.

 Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 240-41, 57 S. Ct. 461, 464, 81 L. Ed. 617 (1937) (citations omitted). In addition to the facts of this case already noted above, other facts are relevant to the question whether a justiciable controversy exists.

 The reason why the "case or controversy" question arises is that the defendants have not yet taken any action whatever against the NYCLU. This action was initiated by the NYCLU when it became apparent to it that it was subject to the reporting and disclosure provisions of Article 14. Defendants do not dispute, and in fact they contend, that the activities of the NYCLU in connection with its ERA referendum campaign subjects the NYCLU to the provisions of Article 14. At oral argument before this court on April 6, 1978 defendants refused to stipulate that they would not require the NYCLU to comply with Article 14 when this lawsuit terminated. When asked why the state was not now pressing for compliance, defendant answered that it would take no action while this lawsuit was pending.

 Other undisputed facts suggest that plaintiff has a legitimate fear that it will be forced to comply with the reporting and disclosure provisions of Article 14. The current statute was passed in 1974 during a period of nationwide enactment of campaign "reform" legislation. Various provisions of the law broadened the sweep of the predecessor statutes. The 1974 law also created the State Board of Elections and gave it new enforcement powers. ...

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