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OSTROM v. O'HARE

September 14, 2001

SONYA E. OSTROM AND THE GREEN PARTY OF KINGS COUNTY, PLAINTIFFS,
V.
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

    MEMORANDUM AND ORDER

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.

Background

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.

Discussion

(1)

Standing

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 provision.

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 challenges.

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 ...


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