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National Organization for Marriage, Inc. v. Walsh

January 25, 2010


The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge



Pending before the Court are motions by plaintiff National Organization for Marriage, Inc. for a preliminary injunction (Dkt. Nos. 2, 48) under Rule 65 of the Federal Rules of Civil Procedure ("FRCP") and for consolidation under FRCP 65(a)(2); and a motion to dismiss under FRCP 12 by all four named defendants in this case, who are sued in their official capacities as co-chairs or commissioners of the New York State Board of Elections ("BOE"). Either by injunction or, in the alternative, by declaratory judgment, plaintiff seeks to prevent defendants from classifying it as a "political committee" as that term is defined in Section 14-100(1) of New York's Election Law. Plaintiff seeks to avoid political committee status because such a classification would trigger various disclosure and reporting requirements elsewhere in Article 14 of the Election Law that, it believes, are unconstitutional facially and as applied to it. Defendants seek dismissal on the grounds that plaintiff's claims are not ripe for review and that plaintiff's pleadings are too conclusory in nature to set forth sufficiently detailed factual allegations. The Court held oral argument on October 21, 2010. For the reasons below, the Court will grant defendants' motion in part, dismiss plaintiff's amended complaint for lack of subject-matter jurisdiction, and deny plaintiff's motions as moot.


This case concerns plaintiff's desire to engage in advertisements and direct mailings in New York concerning the issue of same-sex marriage. According to plaintiff's amended complaint,*fn1 plaintiff is a tax-exempt 501(c)(4) organization founded in 2007 under the Virginia Nonstock Corporation Act. Among other purposes, plaintiff was incorporated "[t]o promote the importance of preserving marriage as the union of one husband and one wife [and to] advocate for policies that will preserve the historic definition of marriage and the natural family that springs therefrom, as well as the rights of the faith traditions that support and sustain the foregoing." (Dkt. No. 45-7 at 1.) Consistent with its corporate purpose, plaintiff seeks to engage in radio and television advertisements, direct mail, and publicly accessible Internet postings of its advertisements and mailings in New York prior to the November 2010 election. The amended complaint includes transcripts of the proposed advertisements, which would conclude with a request that the reader or viewer vote for New York gubernatorial candidate Carl Paladino. The amended complaint also includes a proposed postcard mailing that would thank selected state legislators by name for, inter alia, having "fought to stop gay marriage in the Legislature." (Dkt. No. 45-6 at 2.)

Plaintiff commenced this case and filed its pending motions on September 16, 2010 out of concern about the impact that Article 14 of New York's Election Law would have on it. Specifically, plaintiff is concerned that defendants or BOE as an entity would classify it as a political committee under New York Election Law § 14-100(1). The definition of "political committee" in Section 14-100(1) reads in relevant part as follows:

"[P]olitical committee" means any corporation aiding or promoting and any committee, political club or combination of one or more persons operating or co-operating to aid or to promote the success or defeat of a political party or principle, or of any ballot proposal; or to aid or take part in the election or defeat of a candidate for public office or to aid or take part in the election or defeat of a candidate for nomination at a primary election or convention, including all proceedings prior to such primary election, or of a candidate for any party position voted for at a primary election, or to aid or defeat the nomination by petition of an independent candidate for public office; but nothing in this article shall apply to any committee or organization for the discussion or advancement of political questions or principles without connection with any vote or to a national committee organized for the election of presidential or vice-presidential candidates.

N.Y. Elec. Law § 14-100(1) (Westlaw 2010).

Plaintiff "reasonably fears it is a political committee under New York law, N. Y. ELECTION LAW § 14-100.1 (1988), since its speech is express advocacy" (Dkt. No. 45 at 5 ¶ 18) and because that status would trigger several reporting and disclosure requirements found in several other provisions of Article 14 of the Election Law. The reporting and disclosure requirements in question include the periodic filing of sworn statements disclosing the amount of any donation received and the identity of the donor (Elec. Law §§ 14-102, 14-108); the inclusion, with any filed sworn statements, of copies of advertisements purchased (id. § 14-106); the designation of a treasurer and the filing of the treasurer's contact information with BOE (id. § 14-118); and the accounting of any contribution to the treasurer within 14 days of receipt (id. § 14-122). Plaintiff believes that the burdensome nature of these requirements "is such that the speech would simply not be 'worth it'" (Dkt. No. 45 at 5--6), which means that the requirements would have a chilling effect that is not permitted under the First Amendment.

Plaintiff's motions reduce to whether the definition of "political committee" in Election Law § 14-100(1) unconstitutionally burdens the type of speech that plaintiff seeks to produce in New York. In support of its motions, plaintiff argues that Section 14-100(1) is unconstitutional facially and as applied to it because it would place much greater burdens on its type of speech than the United States Supreme Court has permitted in cases such as Buckley v. Valeo, 424 U.S. 1 (1976) and Citizens United v. FEC, 558 U.S. ____, 130 S.Ct. 876 (2010). In the alternative, plaintiff seeks a declaratory judgment limiting Section 14-100(1) "to organizations that are under the control of, or have the major purpose of nominating or electing, a candidate or candidates." (Dkt. No. 45 at 8 ¶ 33.) In opposition to plaintiff's motions and in support of their own motion to dismiss, defendants contend that plaintiff lacks standing to bring its claims at this time because it has not stated any real or imminent injury that this Court could adjudicate. Additionally, defendants contend that plaintiff's pleadings are sufficiently lacking in factual detail and sufficiently riddled with conclusory legal assertions that it has failed to state a cognizable claim.


A. Jurisdiction and Standing Generally

As an initial matter, and especially because of defendants' pending motion,*fn2 this Court must decide if it has jurisdiction over this case. See United Food & Commercial Workers Union, Local 919, AFL-CIO v. CenterMark Props. Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994) ("[I]n our federal system of limited jurisdiction any party or the court sua sponte, at any stage of the proceedings, may raise the question of whether the court has subject matter jurisdiction. Where jurisdiction is lacking, moreover, dismissal is mandatory.") (internal quotation marks and citations omitted); see also Herrick Co., Inc. v. SCS Commc'ns, Inc., 251 F.3d 315, 322 (2d Cir. 2001) ("We cannot avoid addressing the threshold question of jurisdiction simply because our finding that federal jurisdiction does not exist threatens to prove burdensome and costly, or because it may undermine an expensive and substantially completed litigation.") (citation omitted). Specifically, this Court must decide whether plaintiff has standing to bring this case, because without standing, plaintiff's claims would amount only to impermissible invitations to offer legal advice. "[T]he irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an 'injury in fact'-an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not 'conjectural' or 'hypothetical.' Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be fairly . . . trace[able] to ...

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