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OSTROM v. O'HARE
September 14, 2001
SONYA E. OSTROM AND THE GREEN PARTY OF KINGS COUNTY, PLAINTIFFS,
JOSEPH A. O'HARE, IN HIS OFFICIAL CAPACITY AS CHAIRMAN OF THE NEW YORK CITY CAMPAIGN FINANCE BOARD, THE NEW YORK CITY BOARD OF ELECTIONS, AND THE NEW YORK STATE BOARD OF ELECTIONS, DEFENDANTS.
The opinion of the court was delivered by: Trager, District Judge
Plaintiffs Sonya Ostrom ("Ostrom") and the Green Party of Kings County
(the "Green Party") brought this action against Joseph A. O'Hare, the
Chairman of the New York City Campaign Finance Board (the "Finance
Board"), as well as the New York City Board of Elections and the New York
State Board of Elections challenging the Finance Board's decision not to
grant Ostrom certain election campaign finance funds as well as the
constitutionality of the statutes underlying that decision. Both parties
now move for summary judgment as to plaintiffs' claims.
An election was held for City Council in the 48th Council District of
Kings County, New York in November of 1999. Michael Nelson was running as
the incumbent for a City Council seat in that district, and, through July
of 1999, the Green Party did not have a candidate contesting his seat.
The Green Party's interest in the 48th Council District increased,
however, in July of 1999, when Nelson voted in favor of a new lead-based
paint law, Local Law 38. Feeling that this vote was a betrayal of prior
promises made by Nelson, the Green Party decided to enter a candidate into
the race for his seat.
The Green Party contacted Sonya Ostrom, a retired school teacher well
known in the area, along with several other potential candidates, to
inquire as to whether they would be interested in running for the City
Council seat in the 48th Council District. Beginning on August 9, 1999,
and ending in the early morning of August 10, 1999, the Green Party held
a nomination meeting where it was decided that Ostrom would be the Green
Party candidate in the 48th Council District in the November election. In
addition, because the Green Party did not have a local organization in
Kings County up to that point, various officers were elected to serve in
Kings County for the Green Party and party rules were adopted for that
county. On August 18, 1999, the newly selected Secretary of the Kings
County Green Party filed papers with the New York City Board of Elections
to place Ostrom on the ballot as the Green Party candidate.
Under the New York City Campaign Finance Act (the "Finance Act"),
candidates for City Council may qualify for public campaign funds. In
order to qualify for these funds, called "matching funds" because they
are paid in ratio to other contributions, the candidate must agree to
certain requirements, including a limitation on the amount of
contributions she will accept, a limitation on her expenditures, and
certain public disclosure and auditing requirements. See N.Y.C. Admin.
Code §§ 3-703(1), 3-711. In addition, the candidate for city council
must receive at least $5,000 in "matchable" contributions and receive at
least ten dollars from fifty or more people in the council district
within which she wishes to run. Id. at § 3-703(2)(a)(iv). The
application for these
matching funds must be submitted by June 1st of the election year in
question. See id. at § 3-703(1)(c). Applications submitted after June
1st are granted only under "extraordinary circumstances," including: (1)
the death of a candidate; (2) the resignation or removal of the person
holding the office; or (3) the voluntary termination of the campaign of
the incumbent. Id. at § 3-703(1)(c).
On August 19, 1999, Ostrom submitted an application for public matching
funds for her campaign to the Finance Board. Because the application was
filed after the June 1, 1999 deadline, Ostrom included a declaration of
"extraordinary circumstances" with her application. Gordon Aff., Ex. F.
Ostrom listed several reasons why she should be awarded matching funds.
Initially, she pointed out that the Green Party was not operational in
Kings County until August 10, 1999, so there was no mechanism by which
she could not have been nominated by that party nor any officers to
submit her as a Green Party candidate. Further, she noted that the filing
deadline for the Green Party, as a new party under State Election Law,
was not until September 14, much later than other, established parties,
but the Finance Board does not allow for later applications for matching
funds for new parties. Moreover, she argued that it was "reasonable to
assume" that a nominee from a new party would have a later application
date for matching funds. Finally, Ostrom stated that she had no
foreknowledge that she was going to be a candidate until August 10,
1999, and thus could not have applied for matching funds before that
date. Indeed, she could not have even formed a campaign committee that
could have applied for funds. See id. When Ostrom submitted her
application, Leo Glickman, a member of the Finance Board, told her that he
"believed the petition would be granted."
On August 19, 1999 (the day of Ostrom's application) the Finance Board
sent Ostrom a letter stating that the Finance Board would review the
application and notify her of its decision. While the application was
pending, the Finance Board posted a list of the candidates participating
in the matching funds program as well as the financial information for
each candidate. While Ostrom's name did not appear on the overall list of
candidates receiving matching funds, it did appear on the page reciting
the candidate's financial information.
The Finance Board convened at its next regularly scheduled meeting on
September 16, 1999. At that meeting, the board considered and denied
Ostrom's application by a unanimous vote. The Finance Board sent a letter
to Ostrom on September 17, 1999, informing her that her application for
matching funds had been denied, although the letter did not indicate a
reason for this decision. Gordon Aff., Ex. J.
On October 7, 1999, Ostrom, through her campaign committee, appealed
this denial. The committee, represented by counsel, appeared before the
Finance Board and again argued that the application should have been
granted in light of the fact that the Green Party did not exist in Kings
County prior to August 10, 1999. This appeal was denied, and the Finance
Board affirmed its original denial.
Because she was unable to obtain matching funds, Ostrom asserts that
she was forced to cut back on her campaign. In total, the lack of
matching funds cost Ostrom approximately $40,000. As a result, she only
mailed one-third the number of campaign promotional flyers she would have
mailed if she had been granted the funds. Moreover, she was unable to
open a storefront as a campaign headquarters.
On October 29, 1999, Ostrom and the Green Party moved for a temporary
restraining order to prevent the election from taking place in the 48th
Council District. The motion was denied, but the present action
continued. On November 2, 1999, the election took place, and Nelson won.
Defendants first argue that the Green Party lacks standing to challenge
any of the Finance Board's decisions or any provisions of the Campaign
Finance Act. The argument is based on the fact that the matching funds
are applied for and distributed to individual candidates without regard
to party affiliation. Therefore, the defendants maintain, the Green Party
cannot establish any injury caused to it by the that statutory
Standing requires that: (1) the party suffer an actual or imminent
"injury in fact" that is "concrete and particularized"; (2) here is a
causal connection between this injury and that conduct of the
defendants; and (3) that the injury can be redressed by a favorable
decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112
S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). The issue in the present case
is whether the Green Party has suffered any actual injury. Although the
Green Party does not directly contest this point in its opposition
papers, it does discuss what it considers to be "injuries" caused by the
Finance Board rules and actions.
The first injury claimed is that the June 1, 1999 deadline
"restrict[ed] the Green Party's choice of candidates to a person who
already filed" for matching funds. Pl's Mem., p. 10. In addition, the
Green Party argues that newly formed parties are placed at a disadvantage
based on the disjunction between the state and city deadlines.
Specifically, the Green Party argues that it was not required to form as a
party under State Election Law until August, see N.Y. Election L. §
6-128(2) (McKinney's 1998) (certificate of nomination of candidate from
new party due seven weeks before election),*fn1 but at that point it was
already too late to enter a candidate into the race in time to receive
matching funds. Finally, the Green Party argues that it was deprived of a
"level playing field" without notice and an opportunity to be heard in
violation of the due process clause of the Fourteenth Amendment.
The problem with all of these alleged "injuries" is that they are all
based on the lack of matching funds. However, the Green Party (or any
other party for that matter) is never entitled to matching funds-rather,
it is undisputed that campaign funds are distributed to a candidate
individually. Accordingly, the Green Party did not suffer any direct
injury as a result of any of the statutes or actions in dispute in the
present case because it was not deprived of anything. Therefore, it would
seem that the Green Party does not have standing to make any of these
We need not decide that issue, however, because there is another ground
upon which the Green Party does have standing. The Green Party alleges
that the free speech and associational rights of Green Party voters are
being infringed by unconstitutional deadlines and policies. Although not
phrased as such, these allegations can be read as an attempt to argue
for associational standing on behalf of the Green Party members.
The modern doctrine of associational standing has developed from the
Supreme Court's decision in Warth v. Seldin, 422 U.S. 490, 95 S.Ct.
2197, 45 L.Ed.2d 343 (1975). In Warth, the Court held that an association
can bring a suit on behalf of its members if the "members, or any one of
them, are suffering immediate or threatened injury as a result of the
challenged action of the sort that would make out a justicible case had
the members themselves brought suit." Id. at 511, 95 S.Ct. at 2211-12.
But, the Court cautioned that "the nature of the claim ...