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Molinari v. Bloomberg

April 28, 2009

GUY MOLINARI, PLAINTIFF, WILLAM C. THOMPSON JR., INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS THE NEW YORK CITY COMPTROLLER, BETSY GOTBAUM, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS PUBLIC ADVOCATE FOR THE CITY OF NEW YORK, BILL DE BLASIO, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE NEW YORK CITY COUNCIL, LETITIA JAMES, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS A MEMBER OF THE NEW YORK CITY COUNCIL, CHARLES BARRON, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE NEW YORK CITY CITY COUNCIL, ROSALIE CALIENDO, PHILLIP DEPAOLO, PHILIP FOGLIA, KENT LEBSOCK, ANDREA RICH, MIKE LONG, TOM LONG, SARAH LYONS, IDA SANOFF, GLORIA SMITH, ERIC SNYDER, KENNETH J. BAER, KENNETHA. DIAMOND STONE, PETER GLEASON, MARK WINSTON GRIFFITH, ARI HOFFNUNG, ALFONSO QUIROZ, YDANIS RODRIGUEZ, JO ANNE SIMON, NEW YORK PUBLIC INTEREST RESEARCH GROUP, INC., U.S. TERM LIMITS, LUVENIA SUBER, STANLEY KALATHARA, AND RESPONSIBLE NEW YORK, PLAINTIFFS-APPELLANTS,
v.
MICHAEL R. BLOOMBERG, IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF NEW YORK, CHRISTINE QUINN, IN HER OFFICIAL CAPACITY AS SPEAKER OF THE NEW YORK CITY COUNCIL, NEWYORKCITYCOUNCIL, CITY OF NEW YORK,
DEFENDANTS-APPELLEES, JAMES J. SAMPEL, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF COMMISSIONERS OF ELECTIONS FOR THE BOARD OF ELECTIONS IN THE CITY OF NEW YORK, AND BOARD OF ELECTIONS IN THE CITY OF NEW YORK, DEFENDANTS.



SYLLABUS BY THE COURT

On appeal from a judgment of the United States District Court for the Eastern District of New York (Charles P. Sifton, Judge), granting defendants' motion for summary judgment and dismissing plaintiffs' Amended Complaint. In October 2008, the New York City Council enacted Local Law 51, which Mayor Bloomberg signed into law on November 3, 2008. Local Law 51 amended previously existing term limits legislation by extending the number of eligible terms from two consecutive terms to three for the Mayor, Council Members, Public Advocate, Comptroller and Borough Presidents. Local Law 51 amends term limits legislation that was enacted in 1993 by referendum, and will allow certain officials to run for third terms in November 2009. Because we hold that Local Law 51 does not violate plaintiffs' First Amendment rights, substantive due process rights, New York State referendum law and the City of New York's conflict of interest law, we affirm.

The opinion of the court was delivered by: Straub, Circuit Judge

Argued: March 27, 2009

Last Suppl. Briefs Filed: April 10, 2009

Before STRAUB, POOLER, RAGGI, Circuit Judges.

Plaintiffs-Appellants appeal from the judgment of the United States District Court for the Eastern District of New York (Charles P. Sifton, Judge), granting defendants' motion for summary judgment and dismissing plaintiffs' Amended Complaint. At issue in this litigation is an amendment to the Charter of the City of New York, entitled Local Law 51, which was passed by the City Council and signed into law by Mayor Michael R. Bloomberg on November 3, 2008. It provides that Members of the City Council, the Mayor, Public Advocate, Comptroller and Borough Presidents are eligible to serve a maximum of three consecutive terms in office. It amends sections 1337 and 1338 of the City Charter, which previously provided for a maximum of two consecutive terms for these officials and which were enacted by a city-wide referendum in 1993.

The individual plaintiffs include the current Comptroller and Public Advocate of New York City, several current members of the New York City Council who voted against the legislation at issue in this case, several individuals who are alleged to "have developed concrete plans" to run for City Council seats in the November 2009 election, several individuals who are alleged to have expended time and money in favor of the two public referenda on term limits which are also at issue in this case, and "voters from all walks of life -- and all five boroughs of this great City -- who . . . voted to impose term limits" in these two referenda. The plaintiffs also include three organizations -- New York Public Interest Research Group, Inc., U.S. Term Limits and Responsible New York -- which were referred to by the District Court as "good-government groups."

The individual defendants are the current Mayor of New York City, the Speaker of the City Council and the current head of the New York City Board of Elections. The institutional defendants are the New York City Council, the Board of Elections and the City of New York itself.

The gravamen of plaintiffs' Amended Complaint is that defendants violated federal, State and City law by amending existing term limit legislation enacted by referendum, thereby extending themselves the opportunity to run for an additional term in office. Plaintiffs assert several causes of action, including violations of the United States and New York State Constitutions, the New York Municipal Home Rule Law and the City Charter's conflict of interest provisions. The District Court dismissed plaintiffs' Amended Complaint in its entirety on summary judgment.

On appeal, appellants advance four principal arguments. First, they argue that defendants violated their First Amendment rights because City voters will now be less likely to participate in the referendum process, and thus engage in less First Amendment speech, if laws enacted by referenda can be amended by City Council legislation. Second, they argue that defendants violated their substantive due process rights guaranteed by the Fourteenth Amendment of the United States Constitution because the sole purpose of Local Law 51 is to extend defendants' own political careers by entrenching incumbents. Third, they argue that defendants violated New York Municipal Home Rule Law § 23(2)(b), which they contend requires a mandatory referendum to enact the provisions of Local Law 51. Finally, they argue that defendants violated the City Charter's conflict of interest provisions by enacting legislation conferring upon themselves a political benefit. Because we hold that the enactment of Local Law 51 did not run afoul of any of these provisions, we affirm the District Court's judgment.

BACKGROUND

I. New York State's Referendum Scheme

As a general matter, this case touches upon the City Council's and Mayor's authority to enact local laws amending the City Charter. Cities in the State of New York are given broad power to enact local laws, including those amending a city charter, as long as they "relat[e] to its property, affairs or government" and are "not inconsistent with the provisions of th[e] [state] constitution or any general law." N.Y. CONST., ART. IX, § 2; see also N.Y. MUN. HOME RULE LAW § 10(1)(i)-(ii). This includes local laws relating to "[t]he powers, duties, qualifications, number, mode of selection and removal, terms of office, compensation, hours of work, protection, welfare and safety of its officers and employees." N.Y. MUN. HOME RULE LAW § 10(1)(ii).

A city may enact such laws by a majority vote of its legislative body and the approval of its mayor, and, in the case of a mayor's veto, the legislative body may override the mayor's veto with a two-thirds vote. See id. §§ 20-21.*fn1 Moreover, sections 36 and 37 of the New York Municipal Home Rule Law allow voters to enact such laws directly by means of a referendum. See id. at §§ 36, 37. Such a referendum may be initiated directly by voters through a process commonly referred to as a voter initiative. See id. § 37. Generally, if qualified voters file with the City Clerk a petition containing a certain number of signatures requesting that a proposed local law amending the City Charter be put to referendum, the proposed local law will appear on the ballot at the next general election. See id. A referendum proposing a local law amending the City Charter may also be initiated by a charter commission. See id. § 36. A charter commission may be created by a voters' petition, the City Council or the Mayor. See id. § 36(2)-(4).

Notwithstanding these provisions, the New York Court of Appeals has made clear that "[d]irect legislation in cities must always rest on some constitutional or statutory grant of power. Government by representation is still the rule. Direct action by the people is the exception." McCabe v. Voorhis, 243 N.Y. 401, 413 (1926).

II. 1993 Voter Initiative and 1996 Referendum

In November 1993, City voters put a referendum on the ballot by voter initiative proposing term limits for certain elected City officials, which was ultimately adopted by a vote of more than 59%. It provided:

CHAPTER 50 TERM LIMITS § 1137. Public Policy. It is hereby declared to be the public policy of the city of New York to limit to not more than eight consecutive years the time elected officials can serve as mayor, public advocate, comptroller, borough president and council member so that elected representatives are "citizen representatives" who are responsive to the needs of the people and are not career politicians.

§ 1138. Term Limits. Notwithstanding any provision to the contrary contained in this charter, no person shall be eligible to be elected to or serve in the office of mayor, public advocate, comptroller, borough president or council member if that person had previously held such office for two or more full consecutive terms (including in the case of council member at least one four-year term), unless one full term or more has elapsed since that person last held such office; provided, however, that in calculating the number of consecutive terms a person has served, only terms commencing on or after January 1, 1994 shall be counted.

N.Y. City Charter §§ 1137-38 (N.Y. Legal Publ'g Corp. 2001) (repealed Nov. 3, 2008) (hereinafter, the "1993 Voter Initiative").

In 1996, the City Council put a referendum on the ballot seeking to increase the term limits applicable to Council Members from two to three consecutive terms ("1996 Referendum"). City voters rejected the 1996 Referendum by a margin of approximately 54% to 46%.

III. 2008 Term Limits Amendment

More than a decade later, on October 2, 2008, Mayor Bloomberg announced that he intended to work with the Speaker of the City Council, Christine C. Quinn, to introduce legislation to extend the City's term limits set forth in sections 1137 and 1138 of the City Charter from two consecutive terms to three and then seek re-election. The Mayor emphasized that the change in law would allow voters to elect experienced leadership in a time of unprecedented fiscal crisis. Thus, on October 7, 2008, City Council Members, at the Mayor's request, introduced bill No. 845-A, which, if signed into law, would amend sections 1137 and 1138 of the City Charter to change the term limits from no more than two consecutive terms to no more than three such terms.

Plaintiffs claim that the Mayor was aware of his intentions to ask the City Council to pass legislation extending term limits as early as 2007,*fn2 but delayed his announcement until October 2008 so that voters could not put the issue of term limits on the ballot through a voter initiative prior to the November 2009 election. Under section 37 of New York Municipal Home Rule Law, if qualified voters were to have filed a petition following the introduction of the bill in October 2008 putting the term limits issue to a referendum, it would appear on the November 2009 election ballot at the earliest. See N.Y. MUN. HOME RULE LAW§ 37(6)-(7). Even if successful, such a voter initiative would not affect those made eligible for reelection in November 2009 as a result of the Mayor's proposed amendment.

In addition, plaintiffs emphasize the reported discussions between the Mayor and Ronald Lauder. Specifically, The New York Times reported that Mr. Lauder initially vowed to "vigorously oppose" the plan outlined by Mayor Bloomberg, but he "backed down" after the Mayor promised him a seat on a charter commission that the Mayor agreed to convene in 2010 to put the term limits issue back on the ballot for referendum. Michael Barbaro & Kareem Fahim, Lauder Opposes Mayor on Permanent Change to Term Limits, N.Y. TIMES, Oct. 6, 2008, at A21 (available at J.A. 353-54). Plaintiffs claim that this agreement is reflected in the following provision of the bill:

This local law shall take effect immediately and shall apply to elections held on or after the date of its enactment, provided that this local law shall be deemed repealed upon the effective date of a lawful and valid proposal to amend the charter to set term limits at two, rather than three, full consecutive terms, as such terms were in force and effect prior to the enactment of this local law, where such proposal has been submitted for the approval of the qualified electors of the city and approved by a majority of such electors voting thereon.

See S.A. 67-68. Plaintiffs argue that "[t]his alteration of the Term-Limits Bill made clear that the Bill's true purpose was to afford a third term in office to currently term-limited City officials only; afterward, the voters would decide the term limits applicable to subsequent generations of City officials." See Brief for Plaintiffs-Appellants William C. Thompson, Jr., et al. ("Brief for Appellants") at 11. Plaintiffs invoke a New York Times blog post reporting that Mr. Lauder stated, "'I believe very strongly that the mayor should get the extra term and the City Council should get a third term. That is part of the deal. But I never spoke about the first-term council members.'"*fn3 Michael Barbaro, Lauder Puts New Hurdle in Mayor's Path, N.Y. TIMES CITY ROOM, Oct. 21, 2008, http://cityroom.blogs.nytimes.com/2008/10/21/lauder-puts-a-new-hurdle-in-mayors-path/ (available at J.A. 360-61).

When the bill was introduced into the City Council, Public Advocate Betsy Gotbaum and City Council Members Bill de Blasio and Letitia James, who are plaintiffs and appellants in this action, requested the City's Conflicts of Interest Board to issue an advisory opinion as to whether Council Members would violate the City Charter's conflict of interest provisions by voting on the bill. The Board ruled that no violation would occur. It reasoned that the conflict of interest provisions prohibit Members from voting on proposed legislation that would confer a personal benefit, but that an extension of term limits was a public benefit relating to their roles as public officials.

Council Members de Blasio and James subsequently filed a petition in New York State Supreme Court, New York County (Jacqueline W. Silbermann, Justice), seeking a temporary restraining order enjoining Council Members from voting on the bill on the ground that it would violate the City Charter's conflict of interest provisions. The court denied the petition, holding that no irreparable harm would occur to petitioners because they could, inter alia, abstain from voting on the bill and that "granting the TRO would be an undue interference by one branch of government with another at this stage of the legislative process, and, thus, the matter is not now justiciable." DeBlasio v. Conflicts of Interest Board of the City of New York, No. 1141289/08 (N.Y. Sup. Ct. Oct. 22, 2008) (TRO Hearing).

On October 23, 2008, the City Council voted 29 to 22 to enact Local Law 51, amending the City's term limits law to three consecutive terms. Of the fifty-one sitting Members who voted on the Bill, thirty-five would have been prohibited from running for reelection under the term limits enacted in 1993. Of those thirty-five Members, twenty-three voted to enact Local Law 51.

Mayor Bloomberg signed the bill into law on November 3, 2008. Local Law 51 provides, in relevant part:

§ 1137. Public policy. It is hereby declared to be the public policy of the city of New York to limit the time elected officials can serve as mayor, public advocate, comptroller, borough president and council member so that elected representatives are "citizen representatives" who are responsive to the needs of the people and are not career politicians. It is further declared that this policy is most appropriately served by limiting the time such officials can serve to not more than three full consecutive terms.

§ 1138. Term limits.Notwithstanding any provision to the contrary contained in this charter, no person shall be eligible to be elected to or serve in the office of mayor, public advocate, comptroller, borough president or council member if that person had previously held such office for three or more full consecutive terms, unless one full term or more has elapsed since that person last held such office; provided, however, that in calculating the number of consecutive terms a person has served, only terms commencing on or after January 1, 1994 shall be counted.

Local Law No. 51 (Nov. 3, 2008). Immediately prior to signing the bill, Mayor Bloomberg expressed his commitment to convene a charter commission in 2010 to put the term limits issue back on the ballot for referendum.

IV. This Litigation

Plaintiffs commenced this action on November 10,2008 and filed an Amended Complaint on November 17, 2008. Their Amended Complaint alleges that defendants violated:

(1) plaintiffs' First Amendment rights by amending the 1993 Voter Initiative through City Council legislation, thereby discouraging voters from participating in the referendum process in the future; (2) plaintiffs' substantive due process rights guaranteed by the Fourteenth Amendment by passing legislation with the sole purpose of extending their own political careers and entrenching incumbents; (3) State and City law mandating a referendum to enact legislation regarding term limits; and (4) the City Charter's conflict of interest provisions by enacting legislation that enabled certain Members of the City Council and the Mayor to run for reelection and retain positions of seniority, thus conferring personal benefits at public expense.*fn4

On December 12, 2008, defendants moved to dismiss the Amended Complaint and the parties cross-moved for summary judgment. On January 5, 2009, the District Court heard oral argument. On January 13, 2009, the District Court denied plaintiffs' motion for summary judgmentand granted summary judgment to defendants, entering judgment shortly thereafter. On January 22, 2009, appellants timely filed a notice of appeal from the District Court's Memorandum and Order.*fn5

DISCUSSION

"We review an award of summary judgment de novo, and we will uphold the judgment only if the evidence, viewed in the light most favorable to the party against whom it is entered, demonstrates that there are no genuine issues of material fact and that the judgment was warranted as a matter of law." Barfield v. N.Y. City Health & Hosp. Corp., 537 F.3d 132, 140 (2d Cir. 2008) (citing Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Rubens v. Mason, 527 F.3d 252, 254 (2d Cir. 2008)).

I. The First Amendment

In their Amended Complaint, plaintiffs allege that defendants violated their First Amendment rights by enacting Local Law 51. They claim that they as well as other voters in the City will be less likely to participate in the referendum process in the future, and thus engage in less First Amendment speech, if laws enacted by referenda can be amended or repealed by City Council legislation. Applying the First Amendment balancing test first set forth in Anderson v. Celebrezze, 460 U.S. 780 (1983), the District Court dismissed plaintiffs' claim. See Molinari v. Bloomberg, 596 F. Supp. 2d 546, 565-67 (E.D.N.Y. 2009). It held, "On balance, no rational fact finder could conclude that the claimed interference with plaintiffs' [First Amendment] rights outweighs the right of the City Council to let people choose the best candidates to deal with the current economic situation." Id. at 567.

Here, appellants claim that the District Court used the correct analytical framework but misapplied it. They emphasize that the record contains evidence showing that those who participated in the 1993 and 1996 referenda process have no intention of doing so in the future if the law ultimately enacted and maintained thereby can simply be amended by City Council legislation. In essence, they argue that Local Law 51 "decreases [their speech's] effectiveness" and, as a result, their speech is chilled. See Brief for Appellants at 22. They contend, moreover, that the "timing [of Local Law 51] exacerbated these already-significant burdens by directly frustrating the timely exercise of New York City voters' acknowledged right to put the term limits issue to a third citywide vote prior to this November's election." See id. at 25. They allege that the sole purpose of Local Law 51 was to "entrench" incumbents and, as such, their First Amendment interests outweigh the interests of the City. See id. at 26-31. Appellees, for their part, claim that the objective of Local Law 51 was to provide the City's citizens the opportunity to vote for experienced public officials in a time of financial crisis. Appellants contend, however, that Local Law 51 was not necessary to achieve this objective because the Mayor or the City Council could have timely put the issue of term limits to a referendum prior to the November 2009 election.*fn6 See generally N.Y. MUN. HOME RULE LAW§ 36.

We agree, however, with appellees' further argument that Local Law 51 does not implicate plaintiffs' First Amendment rights and, therefore, we need not decide whether the District Court erred in determining that the City's interests outweighed plaintiffs' First Amendment interests. No balancing is necessary because plaintiffs do not have a viable First Amendment claim in the first place.

A. Plaintiffs Have Not Identified a Burden on Their First Amendment Rights

The logical starting point is to identify precisely what plaintiffs are claiming it is that violates their First Amendment right to free speech. There is no doubt that New York law permits the City Council to amend a law previously enacted by referendum, as the New York Court of Appeals has so held. See Caruso v. City of N.Y., 517 N.Y.S.2d 897 (Sup. Ct. 1987) (Blyn, J.), aff'd on op. of Blyn, J., 533 N.Y.S.2d 379 (App. Div. 1st Dep't 1988), aff'd on op. of Blyn, J., 547 N.E.2d 92 (N.Y. 1989), cert. denied, 493 U.S. 1077 (1990). By adopting the lower court's opinion, the New York Court of Appeals stated:

[T]he laws proposed and enacted by the people under an initiative provision are subject to the same constitutional, statutory and charter limitations as those passed by the Legislature and are entitled to no greater sanctity or dignity. Inasmuch as a legislative body may modify or abolish its predecessor's acts subject only to its own discretion, it likewise should be able, in the absence of an express regulation or restriction, to amend or repeal an enactment by the electorate, its co-ordinate unit, and vice versa.

Id. at 900 (internal citations omitted).*fn7

Although we are clearly bound to follow Caruso as a matter of New York State law, see Van Buskirk v. N.Y. Times Co., 325 F.3d 87, 89 (2d Cir. 2003), plaintiffs, at bottom, contend that this scheme violates the First Amendment because it ...


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