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COMMISSION ON INDEP. COLLEGES & UNIVS. v. NEW YORK

March 10, 1982

COMMISSION ON INDEPENDENT COLLEGES AND UNIVERSITIES, individually and on behalf of its member institutions, Henry D. Paley, individually and as President of the Commission on Independent Colleges and Universities, James C. Ross, individually and as Vice-President of the Commission on Independent Colleges and Universities, Leon Botstein, Charles J. Lavery, Edward J. Mortola, Joseph C. Palamountain, James Shuart and Dorothy Ann Kelly, Plaintiffs,
v.
The NEW YORK TEMPORARY STATE COMMISSION ON REGULATION OF LOBBYING, Walter J. Mahoney, Gail L. Hellenbrand, S. Stanley Kreutzer, Harvey M. Lifset, individually and in their capacity as members of New York Temporary State Commission on Regulation of Lobbying and Frederick C. Stimmel, individually and in his capacity as Executive Director New York Temporary State Commission on Regulation of Lobbying, Defendants



The opinion of the court was delivered by: MCCURN

MEMORANDUM-DECISION AND ORDER

The Commission on Independent Colleges and Universities (CICU), the President and Vice-President of that organization, and the individual plaintiffs challenge the New York Regulation of Lobbying Act (lobby law). N.Y. Leg. Law §§ 1-16. The defendants are the New York Temporary State Commission on Regulation of Lobbying (Commission), its Executive Director and its individual members.

Plaintiffs seek a declaratory judgment that the lobby law is, "in its entirety, null and void, unconstitutional and of no force and effect." Plaintiffs also request an injunction restraining the "defendants, their successors, and all persons acting under their discretion, from enforcing, or attempting to enforce the Regulation of Lobbying Act or from advising, instituting, prosecuting or aiding in any action, suit or proceeding ... to impose upon or enforce against plaintiffs, their officers, agents or employees or any of them, any penalty or damage for failure or refusal to observe or comply with the provisions of said Act." (Plaintiffs' Amended Complaint A, B).

 Jurisdiction is predicated upon 28 U.S.C. §§ 1343, 2201 et seq., and 42 U.S.C. § 1983. Now before this Court are the plaintiffs' motion for summary judgment pursuant to Rule 56 of the Fed.R.Civ.P., and the defendants' motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Fed.R.Civ.P.

 I.

 BACKGROUND

 Plaintiff CICU is a corporation organized under the Education Law of the State of New York, N.Y. Educ. Law § 237. The individual plaintiffs Paley and Ross are officers of CICU and plaintiffs Botstein, Palamountain, Kelly, Shuart, Mortola and Lavery are presidents of CICU members institutions. The defendants are responsible for the enforcement of the lobby law. N.Y.Leg. Law §§ 4(c)(1), 15.

 On June 14, 1979, the Commission advised CICU by letter that if CICU determined "that any person, firm, corporation, or association (lobbyist) is or has been retained, employed or designated to lobby for CICU or any independent college or university and reaches or anticipates reaching the $ 1,000 threshold, it would be necessary for such lobbyist to immediately register and report to the Commission." (Plaintiffs' Exhibit "C"). In compliance therewith, CICU, its member institutions, and its members registered as lobbyists under protest.

 In connection with the plaintiffs' motion for summary judgment, the parties have filed statements of material facts as to which they contend there is no genuine issue to be tried. Rule 10(c) of the General Rules of the United States District Court for the Northern District of New York. From those statements the Court finds it undisputed that compliance with the lobby law entails recordkeeping and accounting efforts, *fn1" and that the State University of New York (SUNY) and the City University of New York (CUNY) are exempt from the jurisdiction of the defendant Commission. *fn2" The parties disagree as to the scope of the law's effects on first amendment rights.

 The lobby law defines a "lobbyist" as

 
every person, firm, corporation or association retained, employed or designated by any person, firm, corporation or association, or by any public corporation, who, on behalf of such entity and pursuant to such retainer, employment or designation, attempts to influence the passage or defeat of any legislation by either house of the legislature, or the approval or disapproval of any legislation by the Governor, or the adoption or rejection of any rule having the force or effect of law, or the outcome of any rate-making proceeding by a state agency.

 N.Y.Leg. Law § 3(a). The term "lobbying" or "lobbying activities" is defined as

 
attempts to influence the passage or defeat of legislation by either house of the legislature, approval or disapproval of any legislation by the Governor, or the adoption or rejection of any rule or regulation having the force and effect of law, or the outcome of any ratemaking proceeding in a state agency.

 N.Y.Leg. Law § 3(b).

 Every lobbyist must file an annual statement of registration that includes the name and address of the lobbyist, the lobby for which the lobbyist is retained, employed or designated, a copy of any agreement if written, or a statement of the terms of the retainer, employment or designation, a description of the subjects of the lobbying, and the agencies that will be lobbied. If the lobbyist is retained by more than one lobby a separate statement for each lobby must be submitted. N.Y.Leg. Law § 5.

 Lobbyists are required to file quarterly and annual reports with the Commission. A lobbyist who receives or incurs at least $ 1,000 of reportable expenditures in a year must register and file the first periodic report by the fifteenth day after the reporting period on which the cumulative total expended for lobby reaches $ 1,000. N.Y.Leg.Law § 8(a)(1). Thereafter, a quarterly report must be filed if the lobbyist receives, expends or incurs at least $ 250 for the purposes of lobbying during the quarter. N.Y.Leg.Law § 8(a)(2). The annual reports are to cumulate information provided in periodic reports, or are to provide equivalent information if periodic reports are not required. N.Y.Leg.Law § 10(b)-(d).

 Expenses under $ 50 are detailed in the aggregate. Expenses over $ 50 must be reported separately and detailed as to who paid and for what purpose, and must be substantiated by receipts. The term "expenses" does not include the personal sustenance, lodging or travel disbursements of the lobbyist, or expenses under $ 500 for one calendar year incurred for printing or other means of reproduction. N.Y.Leg.Law § 8(b)(5).

 The law does not apply to persons engaged in the drafting of legislation, rules, regulations, or rates; or to advising clients and rendering opinions on proposed legislation, rules, regulations or rates, where such professional services are not otherwise connected with legislative or executive action on such legislative or administrative action or rules, regulations or rates. N.Y.Leg.Law § 12(a)(1). The State of New York, including its officers, employees, counsels, or agents, when acting in their official capacity are also exempt from the law. N.Y.Leg.Law § 12(a)(2). The media, and the owners and employees of the media are exempt provided that their activities are limited to the publication or broadcast of news items, editorials, and paid advertisements in connection with proposed legislation, rules, regulations and rates. N.Y.Leg.Law § 12(a)(3). Persons appearing before legislative committees, open meetings, or public meetings are also excluded from compliance. N.Y.Leg.Law § 12(a)(4).

 Provision is made for both civil and criminal penalties for a wilful violation of the law. N.Y.Leg.Law § 13(a), (b). All statements or reports filed under the act are made under the penalty of perjury. N.Y.Leg.Law § 14(a). Upon receipt of notice from the Commission that a person or entity has failed to file a required report, the Attorney General or other appropriate authority "shall take such action as he deems appropriate to secure compliance...." N.Y.Leg.Law § 14(b)(3).

 Plaintiffs challenge this legislation on the grounds that it is an overbroad restriction of their First Amendment rights of freedom of speech, petition and association, that it is void for vagueness, and that it denies equal protection under the First and Fourteenth Amendments.

 II.

 DEFENDANTS' MOTION TO DISMISS

 The defendants have moved to dismiss the complaint under Rule 12(b)(6), for failure to state a claim upon which relief can be granted. A Rule 12(b)(6) motion tests the legal sufficiency, as opposed to the factual basis of a claim. Lowenschuss v. Kane, 520 F.2d 255, 262 (2d Cir. 1975); Oneida Indian Nation of New York v. State of New York, 520 F. Supp. 1278, 1308 (N.D.N.Y.1981). See also, Wright & Miller, Federal Practice and Procedure: Civil, § 1356; 2 A Moore's Federal Practice, P 12.08. The issue in this motion, then, is not whether the plaintiffs will prevail on the merits of their claim, but rather whether plaintiffs are entitled to offer evidence in support of their claim. Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957); Clay v. Martin, 509 F.2d 109 (2d Cir. 1975). See also Wright & Miller, supra. The Court is required to accept the plaintiffs' factual allegations as true. Scheuer v. Rhodes, supra, 416 U.S. at 236, 94 S. Ct. at 1686; Conley v. Gibson, supra, 355 U.S. at 45-46, 78 S. Ct. at 106; Oneida Indian Nation of New York v. State of New York, supra at 1308.

 The Court finds that the allegations regarding the scope of this law, as set forth in plaintiffs' complaint, if taken as true, are sufficient to support a finding of constitutional violation. Therefore, the defendants' motion to dismiss the complaint is denied.

 III.

 PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

 OVERBREADTH

 The primary claim advanced by the plaintiffs is that this statute is void because it restricts the exercise of First Amendment constitutional rights of speech, petition, and association. A law will be struck down for overbreadth when "it does not aim specifically at evils within the allowable area of government control ..., but sweeps within its ambit other activities that constitute an exercise" of protected expressive or associational rights. Thornhill v. Alabama, 310 U.S. 88, 97, 60 S. Ct. 736, 742, 84 L. Ed. 1093 (1940).

 Laws which purport to regulate the content or quantum of speech must be strictly scrutinized by the courts. Unless a compelling governmental interest is present that justifies such restrictions, the law will be invalidated. See, e.g., Consolidated Edison Company of New York v. Public Service Comm'n of New York, 447 U.S. 530, 100 S. Ct. 2326, 65 L. Ed. 2d 319 (1980) (law prohibiting utilities from inclusion of billing inserts that discuss controversial issues); First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S. Ct. 1407, 55 L. Ed. 2d 707 (1978) (law prohibiting corporations and banks from efforts to influence state referenda). See also, Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976); Gooding v. Wilson, 405 U.S. 518, 92 S. Ct. 1103, 31 L. Ed. 2d 408 (1972); Cohen v. California, 403 U.S. 15, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971); Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969); Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942). In such cases it is not necessary for a party to show that his own conduct is constitutionally protected, rather, the party must only show that there are other factual contexts in which the statute would limit protected speech. Central Hudson Gas Corp. v. Public Service Comm'n of New York, 447 U.S. 557, 565 n. 8, 100 S. Ct. 2343, 2351 n. 8, 65 L. Ed. 2d 341 (1980); Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S. Ct. 1116, 1121, 14 L. Ed. 2d 22 (1965); Kunz v. New York, 340 U.S. 290, 294, 71 S. Ct. 312, 315, 95 L. Ed. 280 (1951).

 However, not every interference with fundamental constitutional rights will be struck down by the courts. See e.g., Zablocki v. Redhail, 434 U.S. 374, 98 S. Ct. 673, 54 L. Ed. 2d 618; Califano v. Jobst, 434 U.S. 47, 98 S. Ct. 95, 54 L. Ed. 2d 228 (1978).

 The Supreme Court has developed a distinction to be observed in making an analysis of a statute's overbreadth. Broadrick v. Oklahoma, 413 U.S. 601, 612-13, 93 S. Ct. 2908, 2915-16, 37 L. Ed. 2d 830 (1973). Broadrick differentiated between laws which are straightforward regulations of the content or quantum of speech and those which seek to regulate conduct and have an incidental impact on First Amendment rights. Compare Gooding v. Wilson, supra; Keyishian v. Board of Regents, 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967); Grayned v. City of Rockford, 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972); Zwickler v. Koota, 389 U.S. 241, 88 S. Ct. 391, 19 L. Ed. 2d 444 (1967); Shelton v. Tucker, 364 U.S. 479, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960) with United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968); United States v. Harriss, 347 U.S. 612, 74 S. Ct. 808, 98 L. Ed. 989 (1954) (upholding lobby disclosure law); United States v. CIO, 335 U.S. 106, 68 S. Ct. 1349, 92 L. Ed. 1849 (1948).

 In Broadrick the Supreme Court stated that voiding a law for overbreadth is "strong medicine" that has only been applied as a last resort. 413 U.S. at 613, 93 S. Ct. at 2916. The Court observed that

 
facial overbreadth adjudication is an exception to the traditional rules of practice, and its function a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the state to sanction moves from "pure speech" toward conduct... (P)articularly where conduct and not merely speech is involved, we believe that the overbreadth must not only ...

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