The opinion of the court was delivered by: Sifton, Senior Judge.
Plaintiffs Guy Molinari, the New York City Comptroller, various members of the New York City Council who voted against Local Law 51, the Public Advocate, voters, prospective candidates, and good-government groups ("plaintiffs") commenced this action against Michael Bloomberg ("Mayor Bloomberg"), Christine Quinn ("Speaker Quinn"), the City of New York, and other municipal entities ("defendants"),*fn1 alleging violations of the First Amendment of the United States Constitution, the Fourteenth Amendment, the New York State Constitution, the Municipal Home Rule Law, and the New York City Charter.*fn2 Plaintiffs seek a declaratory judgment that Local Law 51, amending the New York City Charter provisions limiting the eligibility of the Mayor, members of the City Council, and other elected officials to run for office, is unconstitutional and in violation of Municipal Law and the City Charter and an injunction barring the Board of Elections from listing City officials who have served two consecutive terms in office on the ballot in the 2009 City elections. Now before the Court are defendants' motion to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56, and plaintiffs' motion for summary judgment pursuant to the same rule. For the reasons stated below, defendants' motion for summary judgment is granted, and plaintiffs' motion is denied.
The following facts are drawn from the parties' submissions in connection with this motion. Disputes are noted.
In a 1993 city-wide referendum, New York City voters adopted an amendment to the City Charter instituting a two-term limit for city officials by a vote of 59% in favor versus 41% against, with over one million votes cast. Plaintiffs' Statement of Material Facts at ¶ 4 ("SMF"); Swain Decl. at ¶ 4(a). The City Charter was accordingly amended to state that it was the public policy of the City of New York to limit the eligibility to run for office of the Mayor, public advocate, comptroller, borough presidents or council members to persons who had not served to or more consecutive terms in the office they sought to fill.*fn3 In 1996, City Council members presented a proposal to City voters in a referendum seeking to extend term limits from two terms to three terms, which voters rejected by a margin of 54% against versus 46% in favor. SMF at ¶¶ 5, 7; Swain Decl. at ¶ 4(b).
At an October 2, 2008 press conference, Mayor Bloomberg announced his plan to support a City Council legislative proposal to alter term limits and to run for re-election, citing the impending economic crisis as the justification. Ex. 28, Press Release, Mayor Bloomberg Addresses New Yorkers About Term Limits, Office of the Mayor, October 2, 2008. The media reported extensive opposition by good-government groups, media columnists, and government officials to the change in the law.*fn4
Local Law 51 (the "term-limits amendment"), amending New York City Charter §§ 1137-38 to extend the number of terms an official could serve consecutively from two to three terms, was introduced on October 7, 2008, "by request of the mayor." SMF at ¶ 10; N.Y. City Council Introduction 845 of 2008.
On October 9, 2008, plaintiff Council members de Blasio, James, and Gotbaum submitted a request for an advisory opinion to the Conflicts of Interest Board of the City of New York (the "Board"), seeking an opinion on whether the City Charter's conflicts-of-interest provisions would bar term-limited City officials from enacting the term-limits amendment. See Oct. 9. 2008 Letter to Conflicts Board. On October 15, 2008, the Conflicts Board issued its opinion concluding that no violation of the conflicts laws existed or would occur. See Conflicts of Interest Board, Advisory Opinion No. 2008-3 ("COIB Op."). On October 22, 2008, Council members de Blasio and James commenced a special proceeding against the Board and the City Council, pursuant to N.Y. C.P.L.R. Article 78, in the Supreme Court of New York County.*fn5 They sought judicial review of the Board's Advisory Opinion and provisional emergency injunctive relief to postpone a Council vote on the term-limits amendment. See Ex. 55, Transcript of October 22, 2008 hearing. Chief Justice Silbermann of the New York Supreme Court denied the application for a temporary restraining order and declined to sign the proposed order to show cause, finding that the matter was not then justiciable. See id.
As the term-limits amendment was being prepared, plaintiffs de Blasio and James, along with Council member David Weprin, sponsored Introduction 858 of 2008, which would establish a Charter revision commission*fn6 to put the issue of term limits before New York voters in a referendum by special election in early 2009. See de Blasio Aff. at ¶ 7; James Aff. at ¶ 12. This resolution is still pending in the Council. See de Blasio Aff. at ¶ 7.
On October 23, 2008, the City Council voted 28 to 22, with one abstention, against a resolution to put the matter of term limits to a vote by public referendum. Ex. 57, Sewell Chan and Jonathan Hicks, Council Votes, 29 to 22, to Extend Term Limits, New York Times, October 23, 2008. The Council then voted 29 to 22 in favor of the term-limits amendment.*fn7 Ex. 58, Transcript of New York City Council Meeting, October 23, 2008, at 92-129. ("Council Transcript"). Of the 35 Council members who would have been barred from seeking election in 2009 under the prior law, 23 voted in favor of the amendment. See Swain Decl. at ¶ 3; Council Transcript at 92-129. At the public bill-signing ceremony, Mayor Bloomberg stated his intention to convene a Charter revision commission in 2010 to put the term-limits issue on the ballot.
Ex. 59, Transcript of Bill Signing, November 3, 2008.
In the City Council, seniority tends to confer greater powers and responsibilities, including appointment to Committee chairmanships and other leadership positions. See de Blasio Aff. at ¶ 3; James Aff. at ¶¶ 3-7; Stern Aff. at ¶ 11. Were it not for the term-limits amendment, the Speakership and certain Committee chairmanship positions would have been vacant following the 2009 election, creating opportunities for current junior senators to rise to positions of authority. See James Aff. at ¶¶ 5-7; Stern Aff. at ¶ 11; Siegel Aff. at ¶ 6. Over the past ten years, more than 98% of Council incumbents have been reelected, Swain Decl. at ¶ 2(b)-(d). If incumbents are again elected in the 2009 election, junior Council members will not have the same access to positions of authority in the Council. The parties do not agree on the degree to which seniority is a factor in making leadership and chairmanship assignments, but for the reasons stated below, the dispute is not material.
I. Summary Judgment Standard
A court must grant a motion for summary judgment if the movant shows that "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). Summary judgment is appropriate "[w]hen the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587; 106 S.Ct. 1348; 89 L.Ed. 2d 538 (1986).
The party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists. Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir. 1987). In order to defeat such a motion, the non-moving party must raise a genuine issue of material fact. "An issue of fact is genuine if the evidence is such that a reasonable jury [or other fact finder] could return a verdict for the nonmoving party." Elec. Inspectors, Inc. v. Vill. of E. Hills, 320 F.3d 110, 117 (2d Cir. 2003). A fact is material when it "might affect the outcome of the suit under the governing law." Id. Although all facts and inferences therefrom are to be construed in the light most favorable to the non-moving party, the non-moving party must raise more than a "metaphysical doubt" as to the material facts. See Matsushita, 475 U.S. at 586; Harlen Assocs. v. Vill. of Mineola, 273 F.3d 494, 498 (2d Cir. 2001). The non-moving party may not rely on conclusory allegations or unsubstantiated speculation. Twin Labs., Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir. 1990). Rather, the non-moving party must produce more than a scintilla of admissible evidence that supports its pleadings or its defense. First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289-90; 88 S.Ct. 1575; 20 L.Ed. 2d 569 (1968); Niagara Mohawk Power Corp. v. Jones Chem. Inc., 315 F.3d 171, 175 (2d Cir. 2003). In deciding such a motion, the trial court must determine whether, "after resolving all ambiguities and drawing all inferences in favor of the non-moving party, a rational juror could find in favor of that party." Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000).
II. Relevant Provisions of Federal Constitutional Law
The Supremacy Clause of the United States Constitution states that the "Constitution and the Laws of the United States... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. Art. VI, cl. 2. "Federal preemption of a state statute can be express or implied, and... occurs ... where federal law conflicts with state law." SPGGC, LLC v. Blumenthal, 505 F.3d 183, 188 (2d Cir. 2007) (internal quotation marks omitted). "The... Fourteenth Amendment [makes] it unlawful for a State to abridge by its statutes the freedom of speech which the First Amendment safeguards...." Palko v. Connecticut, 302 U.S. 319, 324-25; 58 S.Ct. 149; 82 L.Ed. 288 (1937).
The First Amendment of the United States Constitution provides that Congress "shall make no law... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." U.S. Const. Amend. I. First Amendment rights are "among the most fundamental personal rights and liberties which are secured to all persons by the Fourteenth Amendment against abridgment by the States." Thornhill v. Alabama, 310 U.S. 88, 95; 84 L.Ed. 1093; 60 S.Ct. 736 (1940) (footnote omitted).
The Due Process Clause of the Fourteenth Amendment provides that "no State shall... deprive any person of life, liberty, or property, without due process of law." U.S. Const. Amend. XIV, § 1.
III. Relevant Portions of New York State Law
Section 2(c) of Article IX of the New York State Constitution sets forth the framework of municipal home rule in New York. That section authorizes cities and other local governments to adopt local laws relating to their "property, affairs or government" so long as such laws are "not inconsistent with the provisions of this constitution or any general law." In the case of cities, "general laws" are those that apply to all of the State's cities. See N.Y. Const. Art. IX, § 3(d)(1); N.Y. C.L.S. Municipal Home Rule Law § 2(5) ("Mun. H.R.L."). The State Constitution further authorizes local laws concerning the "powers, duties, qualifications... [and] terms of office... of [a municipality's] officers and employees," subject to restriction by the State Legislature. These powers are implemented and repeated in § 10 of the New York Municipal Home Rule Law. Municipalities thus have flexibility in structuring their governance, except where in conflict with the State Constitution and general laws of the State. See Jancyn Mfg. Corp. v. County of Suffolk, 71 N.Y.2d 91, 518 N.E.2d 903; 524 N.Y.S.2d 8 (1987).
If a local law concerns certain matters specified in Home Rule Law § 23 or Charter § 38, the law must be the subject of a referendum. The Municipal Home Rule law provides, in pertinent part, that a law must be submitted to the voters if it:
a. provides a new charter for the city;
b. changes the membership or composition of the legislative body;
c. changes the term of an elective office; or
d. abolishes, transfers or curtails any power of an elective officer.
N.Y. Mun. H.R.L. § 23(2). The Charter provides, in pertinent part, that a law must be submitted to the voters if it:
a. abolishes or changes the form or composition of the council;
b. changes the term of an elective officer; or
c. abolishes, transfers or curtails any power of an elective officer.
Aside from the short lists of changes cited above that require a mandatory referendum, neither the Municipal Home Rule Law nor the City Charter place any limitations on the legislature's ability to overturn or modify laws passed by referendum, or vice versa. As a result, each subsequent enactment takes priority over previous ones, regardless of the source. The New York Court of Appeals has endorsed the statement that "laws proposed and enacted by the people under an initiative provision are subject to the same constitutional, statutory, and charter limitations and those passed by the legislature and are entitled to no greater sanctity or dignity." Matter of Caruso v. City of New York, 136 Misc. 2d 892, 895-96; 517 N.Y.S.2d 897 (1987), aff'd, 143 A.D.2d 601 (1st Dept.), aff'd for reasons stated by trial court, 74 N.Y.2d 854 (1988). New York courts have on a number of occasions upheld legislative amendments to laws that were originally enacted by referendum. In Benzow v. Cooley, 12 A.D.2d 162; 209 N.Y.S.2d 364 (4th Dept. 1961), aff'd, 9 N.Y.2d 888; 175 N.E.2d 830; 216 N.Y.S.2d 701 (1961), the court upheld the legislative addition of civilian members to the civilian complaint review board, whose membership had been limited to police officers by a prior referendum. In Golden v. New York City Council, 305 A.D.2d 598; 762 N.Y.S.2d 410 (2d Dept. 2003), the Appellate Division upheld an amendment to the 1993 term-limits law permitting Council members with unusually short terms to serve an additional two years.*fn8 In addition, four local laws enacted since 1991 have amended Charter provisions originally enacted by referendum.*fn9
The Municipal Home Rule Law and certain provisions in the New York City Charter specify the procedures and restrictions that govern the passage of local legislation. The City Council has the power to adopt local laws, subject to mayoral approval or veto, which may be overridden by a two-thirds vote of the City Council. N.Y. Mun. H.R.L. §§ 20-21; N.Y.C. Charter §§ 34-37 ("Charter"). The Mayor, the City Council, or a voter petition may create a Charter revision commission, which may propose amendments to the City Charter that are subject to approval by referendum. N.Y. Mun. H.R.L. § 36. Additionally, a local law amending the City Charter "however extensively" or providing a new City Charter may be initiated by petition and may be passed either by the legislature or by referendum. N.Y. Mun. H.R.L. § 37. New York City's term-limits law was first adopted by the voters through the latter process in 1993, after the New York Court of Appeals affirmed that the law was within the City's local home rule powers. See Matter of Roth v. Cuevas, 82 N.Y.2d 791; 624 N.E.2d 689; 604 N.Y.S.2d 551 (1993).
The referendum process in New York City is governed by Municipal Home Rule Law § 37(2), which requires that a referendum proponent gather a number of signatures equaling at least 10% of the total votes cast in the last gubernatorial election, or thirty thousand, whichever is less. Only signatures of qualified electors who were registered to vote in the preceding election may be counted towards the petition. Id. Once a petition is filed with the City Clerk, it is passed to the City Council for consideration. Mun. H.R.L. § 37(6). If the Council does not adopt the provision within two months of filing, advocates must file an additional petition within two months, which ensures the submission of the question to a public vote. Mun. H.R.L. § 37(7). The additional petition must be signed by half the number required for the initial petition, and signatures on the additional petition may not replicate any of the signatures on the initial petition. Id.
Plaintiffs assert claims under the Federal Constitution, the New York State Constitution, New York State law, and New York City law. The claims under Federal law are brought pursuant to 42 U.S.C. § 1983. "It is well established that in order to state a claim under § 1983, a plaintiff must allege (1) that the challenged conduct was attributable at least in part to a person acting under color of state law, and (2) that such conduct deprived the plaintiff of a right, privilege or immunity secured by the Constitution or laws of the United States." Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir. 1994) (quoting Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993)). Generally, § 1983 "allows plaintiffs with federal or constitutional claims to sue in federal court without first exhausting state judicial or administrative remedies." Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 881 (2d Cir. 1996) (citations omitted). Plaintiffs allege that the defendant City officials' actions in passing and seeking to enforce Local Law 51 deprived them of rights under the First and Fourteenth Amendments.
Reflecting the diversity of their group, including voters, members of the minority in the City Council vote on Local Law 51, prospective challengers to incumbents seeking public office, present holders of elective office seeking seniority and good government groups, among others, plaintiffs rely on several different lines of cases from the Supreme Court of the United States and Courts of Appeal of this (the Second) and other circuits analyzing the several rights protected by the First Amendment. Plaintiffs argue on behalf of past and future voters on referenda in Claim I of their complaint that Local Law 51 has denied them their rights to vote effectively and meaningfully, a right recognized by Williams v. Rhodes, 393 U.S. 23, 30; 89 S.Ct. 5; 21 L.Ed. 2d 24 (1968), by 'nullifying' the results of the 1993 and 1996 referenda, which established the two-terms limit, and by discouraging voters from voting for similar referenda in the future.
Plaintiffs argue in Claim III on behalf of past and future supporters of referenda and prospective candidates for elective office and their supporters that Local Law 51 denies supporters of referenda access to the ballot, a right recognized as among the several protected in the First Amendment in Buckley v. Am. Constitutional Law Found., 525 U.S. 182; 119 S.Ct. 636; 142 L.Ed. 2d 599 (1999) and Meyer v. Grant, 486 U.S. 414, 420; 100 L.Ed. 2d 425; 108 S.Ct. 1886 (1988), by demonstrating that the results of referenda are not shielded from legislative revision, thereby discouraging supporters from investing the time and resources necessary to place matters like term limits on the ballot and by discouraging challengers to incumbents for City office and their supporters from running for public office because of the incumbents' advantages in such a contest.
Plaintiffs argue further in Claim II on behalf of all their members that Local Law 51 limits their rights of free speech by "chilling" speech or making it less likely that candidates, their supporters, and proponents of future referenda will speak out in support of their cause, having been discouraged by the reversal of the decision of the 1994 and 1996 referenda. Plaintiffs refer to Laird v. Tatum, 408 ...