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LEGI-TECH v. KEIPER

December 4, 1984

LEGI-TECH, INC., Plaintiff, against DAVID W. KEIPER and JOHN J. FASO, as Commissioners of the Legislative Bill Drafting Commission of the State of New York, WARREN ANDERSON, as Temporary President of the Senate of the State of New York, STANLEY FINK, as Speaker of the Assembly of the State of New York, and MARIO CUOMO, as Governor of the State of New York, Defendants.


The opinion of the court was delivered by: MINER

ROGER J. MINER, D.J.

MEMORANDUM-DECISION and ORDER

 I

 This action arises out of alleged multiple constitutional violations stemming from defendants' recent introduction of a "Legislative Retrieval Service" ("LRS") and plaintiff's exclusion from access thereto. The action brought pursuant to 42 U.S.C. § 1983 and jurisdiction is predicated upon 28 U.S.C. §§ 1331, 1343. Before the Court is plaintiff's motion for a preliminary injunction, Fed. R. Civ. P. 65. The following represents the Court's findings of fact and conclusions of law as required by Fed. R. Civ. P. 52(a).

 II

 Plaintiff Legi-Tech is a California corporation offering to the public a news service known as the "Legi-Tech System," which disseminates to subscribers by electronic means a variety of information regarding state legislative activity. The system offers summaries of legislation, transmits the recorded votes on each bill, provides the attendance record of each state legislator, and indicates the amount of contributions given by lobbyists to particular legislators. Legi-Tech provides computer terminals to subscribers to enable them to receive the service. Some Legi-Tech's customers include news media, lobbyists, major corporations, and state and local agencies. Traditionally, in order to prepare its news date for distribution to its subscribers, Legi-Tech has obtained the printed version of each legislative bill and the summary memorandum prepared by the legislator who sponsored the bill. It accumulates additional information by having its staff monitor the proceedings of the legislature in person.

 In January of 1984, the Legislative Bill Drafting Commission of the State of New York ("Commission") instituted a pilot project to determine the feasibility of its LRS system for the transmission of legislative information to computers located on subscribers' premises. According to plaintiff, LRS is the only available method of obtaining the text of New York bills on the same day they are introduced. Moreover, plaintiff contends that during the period between the time the bill is introduced and the legislature makes available a printed copy of the complete text, LRS is the exclusive source of the exact text of pending legislation. The lag-time before printing is alleged to range from two days to two weeks, during which period only LRS subscribers are capable of learning the text of legislative proposals.

 Seeing the potential for enhancement of Legi-Tech's services, its president wrote to defendants David W. Keiper and John J. Faso, members of the Commission, requesting access to LRS. On February 22, 1984, Keiper and Faso responded that they were "not accepting any new applicants to [the] pilot project at this time" because the "customer population has exceeded the amount designated for this stage of the project." Complaint, P 17. In March, Legi-Tech again sought access to LRS but to no avail. The service was made available to the public on April 1, 1984, and Legi-Tech continued to seek access. Those efforts culminated in an Article 78 petition filed in New York State Supreme Court on June 1, 1984, seeking an order requiring the Commission to offer LRS to Legi-Tech in the same manner and on the same terms as offered to other subscribers.

 On June 7, 1984, legislation was introduced in the New York State Legislature establishing a fund to consist of revenues derived from, inter alia, the sale of electronic legislative information services.The bill, known as "Chapter 257," was signed into law on June 25, 1984. Chapter 257 establishes a "Legislative Computer Services Fund" consisting of revenues received by the legislature from the sale of electronic data processing services or charges for publications of statutes. Central to the present litigation is the bill's additional provision that:

 Notwithstanding any provision of law to the contrary, the legislature is hereby authorized to engage in the sale of any of the foregoing services, programs or materials to such entities as the temporary president of the senate and speaker of the assembly, in their joint discretion, deem appropriate, except those entities which offer for sale the services of an electronic information retrieval system which contains data relating to the proceedings of the legislature.

 (emphasis added).

 According to its complaint, Legi-Tech is the only entity other than LRS that offers to the public an information retrieval service that provides summaries of pending New York bills. Moreover, plaintiff claims that it is the only entity to which the Commission has refused to provide access to LRS, even though it is willing and able to pay the service's fees. The gravamen of plaintiff's complaint is that the statutory exception in Chapter 257 was enacted for the specific purpose of legitimizing defendants' refusal to offer LRS service to Legi-Tech, enhancing the competitive position of LRS vis-a-vis Legi-Tech, and impairing the ability of Legi-Tech to offer a competing legislative information service. In particular, plaintiff challenges the facial and as-applied constitutional validity of Chapter 257, and raises host of constitutional challenges to defendants' actions, vis., (1) that defendants' actions deny plaintiff and others freedom of speech and freedom of the press, in violation of the first and fourteenth amdendments; (2) that defendants have denied plaintiff equal protection in violation of the fourteenth amendment; (3) that defendants have denied plaintiff its right to due process; and (4) that Chapter 257 is a bill of attainder violating art. I, § 10, cl. 1 of the United States Constitution. *fn1" In the nature of relief, plaintiff seeks a declaration of the invalidity of Chapter 257, preliminary and permanent injunctions, and actual and punitive damages.

 II

 The standard for preliminary injunctive relief in this circuit requires that the moving party demonstrate "(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair grounds for litigation and a balance of hardships tipping decidedly . . ." in its favor. Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979) (per curiam); see also Bell & Howell: Mamiya Co. v. Masel Supply Co., 719 F.2d 42, 45 (2d Cir. 1983). A review of the claims raised here convinces this Court that plaintiff has failed to demonstrate its entitlement to the extraordinary remedy it seeks.

 A. Irreparable Harm

 According to plaintiff, "[e]ach day that [it] is denied access to LRS, it suffers incalculable injury to its constitutional rights of communication and freedom of expression." Plaintiff's Memorandum of Law in Support of Application for Preliminary Injunction at 42-43. There can of course be no question that a denial of first amendment rights constitutes irreparable harm. See Elrod v. Burns, 427 U.S. 347, 373-74, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976). Defendants do not, nor could they, dispute this proposition, other than to argue that reliance on a theory of first amendment deprivation as a predicate for a showing of irreparable harm only begs the question, since plaintiff has not established any first amendment injury.Suffice is to note that if plaintiff could establish a first amendment violation, it would be able to satisfy both prongs of the preliminary injunction standard. Because this Court concludes, however, that there remain, at the very least, serious questions concerning the existence of ...


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