their claim that the absence of a stay would subject them to immediate and irreparable injury. Hirschfeld v. Spanakos, 1995 WL 747759, *3. These factors, particularly when coupled with the appearance of bad faith from the timing of the motion, leads this Court to find that no reasonable litigant who was informed accurately of the applicable law realistically could have expected success on the merits.
The question whether there was a constitutional violation therefore turns upon the Board's subjective intent in filing the stay motion, which is the subject of the second branch of the Professional Real Estate Investors test.1 The possibilities range along a spectrum.
At one end is the possibility that the Board, although objectively chargeable with knowledge that it was unlikely to obtain a stay, was not subjectively aware that the odds were so heavily against it and, in fact, acted without any purpose to interfere with Hirschfeld's campaign except to the extent that the Second Circuit might hold that the Board was entitled to a stay that would have kept him off the ballot. In that event, it would have acted in a bona fide if ill-advised effort to enforce a provision of the New York Election Law that previously had been upheld by the Second Circuit. See Hirschfeld, 1995 WL 747759, *2.
The opposite end of the spectrum is implied by an argument previously made in this case by Hirschfeld. Hirschfeld has suggested that the effect of the Board's appeal and stay motion, the latter made as it was days before the election, was to create uncertainty as to whether Hirschfeld would be on the ballot and thus to discourage prospective voters, contributors and media coverage and generally undermine his prospects for success. If the Board subjectively understood that the stay motion was doomed, it is difficult to imagine any reason for the motion other than to disrupt the campaign.
In both of these two cases, the Board would have "interfered" with the exercise of Hirschfeld's constitutional rights in the sense that it would have taken action that made it more difficult for Hirschfeld to be elected to Congress. In the first case, however, the intention would have been to keep him off the ballot as the outcome of the judicial process. In the second, it would have been to make his election more difficult "through the 'use [of] the governmental process - as opposed to the outcome of that process...." Columbia, 499 U.S. at 380 (emphasis in original). There are many intermediate points at which both such intentions would have been present in varying proportions.
The Court is aware that the Second Circuit, in the prior action, imposed sanctions on the Board on the ground, among others, that its stay motion was made in bad faith. Hirschfeld v. Board of Elections in the City of New York, 984 F.2d 35 (2d Cir. 1993). That determination, however, does not have preclusive effect in this subsequent action for three reasons. First, the process by which appellate courts impose sanctions suits the appellate courts' need to police the behavior of parties before them. But it typically is a summary process in which no testimony is taken and no cross-examination permitted. It does not afford litigants the full opportunity to litigate factual issues that is a prerequisite to giving the determination of factual issues preclusive effect in subsequent litigation. See Hirschfeld, 984 F.2d 35, 1995 WL 747759, at *2 n.2 (citing cases). Indeed, this case well illustrates the dangers of according preclusive effect to such determinations. Second, as previously discussed, the Court of Appeals' bad faith finding was not necessary to its ruling in the sense required before it may be given preclusive effect. Id. Third, the issue before the Second Circuit, although certainly similar, was not necessarily the same as that now presented here. The issue here is whether the Board acted for the subjective purpose of interfering with Hirschfeld's campaign by the effect of making the stay motion, as distinct from the effect that would have flowed from a decision by the Second Circuit to grant the motion. The Court of Appeals' conclusion that the motion was an abuse and made in bad faith in the sense that it was vexatious, harassing, or made for another improper purpose, 984 F.2d at 40, does not necessarily reflect a finding that the Board acted with the quite specific subjective intent required for liability here.
The facts critical to disposition of this issue are these: Judge Knapp issued a preliminary injunction requiring the Board to place Hirschfeld on the ballot on September 30, 1992. The Board resolved to appeal from that decision at a meeting held on October 6, 1992 at which no representative of the Corporation Counsel was present.
The matter then passed to the Corporation Counsel's office.
The Board held another meeting on October 27, 1992 at which an Assistant Corporation Counsel appeared to report on the Hirschfeld appeal, which of course had not yet been taken. He began by advising the Board that the case would not be heard before election day and that Hirschfeld's name would appear on the ballot. He advised that the appeal was not frivolous but that the Board might lose. He indicated that the State Board of Elections would submit an amicus brief in support of the City Board. Nevertheless, members of the Board expressed annoyance at what they perceived to be foot-dragging by the Corporation Counsel. A motion to discharge the Corporation Counsel as the Board's attorney on the ground that he "was not doing [his] job and not working in the Board's best interest" was made and seconded, though later withdrawn. (DX C) A motion to have the Corporation Counsel "proceed immediately on the appeal" then carried unanimously. (Id.) The appeal and the stay motion were filed on the following day. The record thus is plain, and the Court finds, that the Board of Elections was not responsible for any undue delay in filing the appeal and the stay motion. On the contrary, it protested about the delay in pursuing the appeal to the Corporation Counsel's office.
The evidence is unclear as to whether the Board ever considered whether to seek a stay pending appeal, as distinct from pursuing the appeal as promptly as possible.
Perhaps it did, as the Court is inclined to believe, or perhaps the Corporation Counsel's office filed the motion for a stay without specific instructions from the Board in response to the displeasure with its representation so clearly manifested at the Board's October 27 meeting. In either case, however, the Court finds that the Board was not aware that a stay motion would stand no realistic prospect of success. The Court further finds that there is no persuasive proof that the Board intended any of its actions, in whole or in part, to interfere with the campaign except to the extent of the interference that would have occurred as the result of a judicial decision to grant the motion.
In light of Professional Real Estate Investors, Omni Outdoor and, indeed, the entire history of the sham exception to the Noerr doctrine, the plaintiffs may not recover in these circumstances. They have failed to establish that the defendants sought to interfere with Hirschfeld's campaign through the process rather than the outcome of litigation.
As this case presents what appears to be a question of first impression, it is appropriate to take account of the possibility that a reviewing court may take a different view of the liability issue and to proceed to the question of damages so that there will be no need for a remand in any event.
Plaintiffs claim that Hirschfeld would have won the election
but for the Board's actions and that they were damaged in other ways. The Court appreciates the frustration and irritation they feel. Nonetheless, the basic problem established by plaintiffs' evidence was one common to virtually all independent campaigns, particularly independent Congressional and other local campaigns in this major media market in presidential election years. The ballot access laws of New York present formidable obstacles to independent candidacies, not least of them the uncertainty that often exits as to whether independent candidates will secure ballot positions. Even if successful in securing places on the ballot, such candidates have great difficulty in competing successfully against the torrent of political and other news for media attention. They have great difficulty too in persuading prospective voters, contributors and others that they are serious contenders. The most plaintiffs could have hoped to establish in this case is that the stay motion made a virtually insurmountable task marginally more difficult. But with due respect to their sincerely held feelings, it suffices to say that their claims of injury and of compensable damages have not been established by a preponderance of the evidence. The Court finds that the defendants' actions, insofar as they remain at issue in this action, caused no compensable injury to plaintiffs and that there is no basis whatever for any compensatory recovery.
Accordingly, even if there were liability here, the Court would fix damages at six cents, a nominal figure appropriate under Carey v. Piphus, 435 U.S. 247, 266-67, 55 L. Ed. 2d 252, 98 S. Ct. 1042 (1978), in a case in which the defendants are guilty of a constitutional violation but no compensatory damages are established. See also Farrar v. Hobby, 506 U.S. 103, 113 S. Ct. 566, 573, 121 L. Ed. 2d 494 (1992); Memphis Community School District v. Stachura, 477 U.S. 299, 308-10 & n. 11, 91 L. Ed. 2d 249, 106 S. Ct. 2537 (1986). Inasmuch as the only claims remaining are against the City, a City board, and City officials in their official capacities, plaintiffs could not recover punitive damages even if the defendants were liable. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 69 L. Ed. 2d 616, 101 S. Ct. 2748 (1981.)
Hence, in the event that liability had been established, which it was not, the Court would enter judgment in plaintiffs' favor in the amount of six cents.
Accordingly, this action is dismissed. The foregoing constitute the Court's findings of fact and conclusions of law.
Dated: December 28, 1995
Lewis A. Kaplan
United States District Judge