In the Matter of BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW et al., Appellants,
NEW YORK STATE BOARD OF ELECTIONS et al., Respondents.
Calendar Date: January 12, 2018
Celli Brinckerhoff & Abady LLP, New York City (Elizabeth
S. Saylor of counsel) and Wendy R. Weiser, Brennan Center for
Justice at NYU School of Law, New York City, for appellants.
William J. McCann Jr., New York State Board of Elections,
Albany, for New York State Board of Elections, respondent.
Sinnreich, Kosakoff & Messina, LLP, Central Islip (John
Ciampoli of counsel), for Edward Cox and another,
Before: Garry, P.J., McCarthy, Egan Jr., Lynch and Pritzker,
MEMORANDUM AND ORDER
from a judgment of the Supreme Court (Fisher, J.), entered
March 16, 2016 in Albany County, which dismissed
petitioners' application, in a combined proceeding
pursuant to CPLR article 78 and action for declaratory
judgment, to review a determination of respondent State Board
of Elections denying a
to rescind said respondent's 1996 Opinion No. 1.
background of this matter is more fully discussed in this
Court's decision in a related appeal (Matter of
Brennan Law Ctr. for Justice at NYU School of Law v New York
State Bd. of Elections, ___ A.D.3d ___ [appeal No.
524950, decided herewith]). In 1996, respondent State Board
of Elections (hereinafter respondent) issued 1996 Opinion No.
1 (hereinafter the 1996 opinion), which opines that limited
liability companies (hereinafter LLCs) are not subject to the
campaign contribution limits imposed upon corporations and
partnerships by the Election Law, and may thus make
contributions subject to the higher limits imposed upon
individuals - a result known as the "LLC Loophole."
Critics assert that LLCs have acquired inordinate political
influence as a result of the 1996 opinion, but legislative
efforts to lower the contribution limits imposed upon them
have been unsuccessful.
April 2015, one of respondent's commissioners made a
motion for respondent to direct its counsel to prepare an
opinion that would rescind the 1996 opinion and provide
updated guidance on the applicability of the Election
Law's contribution limits to LLCs. The motion failed in a
tie vote when two of the four commissioners voted against it
(see Election Law § 3-100 , ).
Petitioners - the Brennan Center for Justice at NYU School of
Law and six individuals - then commenced this combined CPLR
article 78 proceeding and action for a declaratory judgment
against respondent seeking, among other things, a judgment
rescinding the 1996 opinion and ordering respondent "to
issue a new opinion or regulation consistent with the text
and purpose of the Election and [Limited Liability Company]
Laws."  Supreme Court dismissed the
petition/complaint, finding, among other things, that
petitioners lack standing. Petitioners appeal.
establish standing to pursue this litigation, petitioners
must show that they have suffered injury-in-fact and that the
injury is within the zone of interests protected by the
statute at issue (see Matter of Association for a Better
Long Is., Inc. v New York State Dept. of Envtl.
Conservation, 23 N.Y.3d 1, 6 ; Matter of
Animal Legal Defense Fund, Inc. v Aubertine, 119 A.D.3d
1202, 1203 ). Here, as in the related appeal, the
contested issue is the injury-in-fact element, which requires
a showing that petitioners "will actually be harmed by
the challenged action. As the term itself implies, the injury
must be more than conjectural" (Matter of Graziano v
County of Albany, 3 N.Y.3d 475, 479  [internal
quotation marks, ellipsis and citation omitted]).
individual petitioners are current or former legislators or
candidates for legislative office. The Brennan Center
describes itself as "a not-for-profit, non-partisan
public policy and law institute that focuses on issues of
democracy and justice." Petitioners assert that
respondent should have granted the motion to rescind the 1996
opinion because the LLC Loophole damages effective governance
by intensifying the influence of large financial
contributions upon elections. As in the related appeal, their
arguments that the LLC Loophole raises issues "of vital
public concern" are persuasive, but do not, without
more, entitle them to standing (Society of Plastics
Indus. v County of Suffolk, 77 N.Y.2d 761, 769 
[internal quotation marks omitted]; see Matter of Gilkes
v New York State Div. of Parole, 192 A.D.2d 1041, 1042
, lv denied 82 N.Y.2d 654');">82 N.Y.2d 654 ). We find
that petitioners lack standing because they have not
established the required element of injury-in-fact.
confer standing, a claimed injury may not depend upon
speculation about what might occur in the future, but must
consist of "cognizable harm, meaning that [a petitioner]
has been or will be injured" (New York
State Assn. of Nurse Anesthetists v Novello, 2 N.Y.3d
207, 214  [internal quotation marks and citation
omitted; emphasis added]). Here, all of petitioners'
claims of injury resulting from the denial of the April 2015
motion rely upon the assumption that the LLC Loophole would
have been eliminated if the motion had been granted. That
assumption is not supported by the open-ended language of the
motion, which merely asked respondent to direct its counsel
to prepare an opinion "provid[ing] updated guidance on
the applicability of [Election Law] article 14 to
[LLCs]." Nothing in this language required the new
opinion to eliminate the LLC Loophole. If respondent had
granted the motion, the resulting opinion might have
reaffirmed the same analysis that established the LLC
Loophole in 1996, rather than providing the altered statutory
interpretation that petitioners contend should be adopted.
Thus, petitioners' claims of injury-in-fact rely upon
events that might not have occurred and are too speculative
to demonstrate "concrete injury fulfilling the
requirement of standing" (Matter of Town of E.
Hampton v State of New York, 263 ...