The opinion of the court was delivered by: GERARD L. GOETTEL
This action concerns the constitutionality of a New York law imposing registration charges upon professional solicitors. Plaintiffs have brought suit under § 1983 challenging New York Executive Law § 173-b which requires professional solicitors to register with the state and pay an $ 80 annual fee before they are permitted to conduct fundraising activities. Plaintiffs are two organizations that educate the public on the issues of drug abuse and child abuse as well as various individuals, all New York residents, whose profession is telemarketing and who have paid the $ 80 registration fee.
Executive Law § 173-b(1), entitled Solicitation and Collection of Funds for Charitable Purposes, states in part that:
No person shall act as a professional solicitor in the employ of a professional fundraiser . . . before he has registered with the Secretary . . . registration shall be in writing . . . and shall be accompanied by a fee in the sum of eighty dollars.
N.Y. Exec. Law § 173-b. A "professional solicitor" is defined as:
Any person who is employed or retained for compensation by a professional fund raiser to solicit contributions for charitable purposes or for the purposes of any law enforcement support organization from persons in this state.
Violation of this law is deemed a misdemeanor. Generally, the plaintiffs contend that their abilities to retain professional fundraisers, conduct their public education programs, and operate as fundraisers are unfairly impaired by this statute. Plaintiff seeks to declare the law unconstitutional under the 1st and 14th Amendments and a permanent injunction enjoining its enforcement.
Plaintiffs argue that § 173-b's $ 80 registration fee violates the 1st Amendment to the United States Constitution as an unconstitutional tax and prior restraint on their 1st Amendment protected expression unrelated to the expenses associated with administering the law. They also contend that § 173-b violates their equal protection rights under the 14th Amendment by requiring $ 80 fees from solicitors working for professional fundraisers while exempting officers, volunteers, and employees of charitable organizations or fundraising counsel from the fee.
Before the court today are plaintiffs' and defendants' motions for summary judgment. We can only grant a motion for summary judgment where "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Challenges to the constitutionality of licensing statutes have been decided on summary judgment. The question is whether plaintiffs' constitutional claims involve disputed issues of fact or represent purely questions of law.
In general, registration fees are constitutionally permissible if they are nominal and are imposed to defray the administrative costs involved in the registration. Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 113-14, 87 L. Ed. 1292, 63 S. Ct. 870 (1943); Gannett Satellite Information Network, Inc. v. Metropolitan Transp. Authority, 745 F.2d 767, 774 (2d Cir. 1984). In Murdock, a license fee was declared invalid because it was "not a nominal fee imposed as a regulatory measure to defray the expenses of policing the activities in question." 319 U.S. at 113-14.
Plaintiffs argue firstly that the $ 80 fee is not nominal, but rather substantial and burdensome upon professional solicitors in New York. Secondly, plaintiffs contend that the revenues derived from the $ 80 fees are not used simply to ...