Davis v. New York State Board of Elections et al
Filing
81
OPINION AND ORDER re: 59 MOTION to Dismiss for Lack of Jurisdiction filed by Maria R. Guastella, Alan Schulkin, Bianka Perez, Frederic M. Umane, Lisa Grey, Simon Shamoun, Michael A. Rendino, John Flateau, Michael Michel, Jos e Miguel Araujo, 57 MOTION to Dismiss the First Amended Complaint filed by Gregory P. Peterson, Andrew J. Spano, Douglas A. Kellner, Peter S. Kosinski. The plaintiff, Evan A. Davis, brings this action for declaratory and injunc tive relief against the defendants, the Commissioners of the New York State and New York City Boards of Election in their official capacities. Davis alleges that §§ 6-138, 6-140, 6-146, and 7-104 of the New York Election Law (the &qu ot;Candidate Laws") are unconstitutional under the First and Fourteenth Amendments. Pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, the defendants moved to dismiss Davis's claims for lack of subject matte r jurisdiction and for failure to state a claim. For the reasons explained below, the Rule 12(b)(1) motion is granted; as further set forth herein. The complaint is dismissed without prejudice for lack of subject matter jurisdiction. Having con cluded that the Court lacks subject matter jurisdiction in this case, the defendants' motion to dismiss the plaintiff's complaint for failure to state a claim is denied as moot. The Clerk is directed to enter Judgment and to close this case. The Clerk is also directed to close all pending motions. (Signed by Judge John G. Koeltl on 11/4/2016) (mro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
EVAN A. DAVIS,
Plaintiff,
16-cv-1750 (JGK)
- against –
OPINION AND ORDER
PETER S. KOSINSKY, ET AL.,
Defendants.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
The plaintiff, Evan A. Davis, brings this action for
declaratory and injunctive relief against the defendants, the
Commissioners of the New York State and New York City Boards of
Election in their official capacities.
Davis alleges that §§ 6-
138, 6-140, 6-146, and 7-104 of the New York Election Law (the
“Candidate Laws”) are unconstitutional under the First and
Fourteenth Amendments.
Pursuant to Rules 12(b)(1) and 12(b)(6)
of the Federal Rules of Civil Procedure, the defendants moved to
dismiss Davis’s claims for lack of subject matter jurisdiction
and for failure to state a claim.
For the reasons explained
below, the Rule 12(b)(1) motion is granted.
I.
When presented with motions under both Federal Rule of
Civil Procedure 12(b)(1) to dismiss for lack of subject matter
jurisdiction and Rule 12(b)(6) to dismiss for failure to state a
claim upon which relief can be granted, the first issue is
1
whether the Court has the subject matter jurisdiction necessary
to consider the merits of the action.
See Rhulen Agency, Inc.
v. Ala. Ins. Guar. Ass’n, 896 F.2d 674, 678 (2d Cir. 1990);
S.E.C. v. Rorech, 673 F. Supp. 2d 217, 220-21 (S.D.N.Y. 2009).
To prevail against a motion to dismiss for lack of subject
matter jurisdiction, the plaintiff bears the burden of proving
the Court’s jurisdiction by a preponderance of the evidence.
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
In
considering such a motion, the Court generally must accept the
material factual allegations in the complaint as true. See J.S.
ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir.
2004). The Court does not, however, draw all reasonable
inferences in the plaintiff’s favor. Id.; Graubart v. Jazz
Images, Inc., No. 02-cv-4645 (KMK), 2006 WL 1140724, at *2
(S.D.N.Y. Apr. 27, 2006). Indeed, where jurisdictional facts are
disputed, the Court has the power and the obligation to consider
matters outside the pleadings, such as affidavits, documents,
and testimony, to determine whether jurisdiction exists. See
APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003); Kamen v. Am.
Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986). In
considering such materials, the Court “may not rely on
conclusory or hearsay statements contained in the affidavits.”
Attica Cent. Sch., 386 F.3d at 110.
In considering matters
outside the pleadings, the Court is guided by that body of
2
decisional law that has developed under Federal Rule of Civil
Procedure 56. Kamen, 791 F.2d at 1011; see also Rorech, 673 F.
Supp. 2d at 221.
II.
The following facts alleged in the Amended Complaint are
assumed to be true.
Article 19 of the New York State Constitution requires that
a statewide vote be held every 20 years to determine whether to
call a Constitutional Convention.
Am. Compl. ¶ 20.
The next
Constitutional Convention vote will be held in November 2017,
and if a majority of New York voters vote in favor, an election
to select delegates to the Convention will be held in November
2018, with the Convention to follow in April 2019.
20.
Am. Compl. ¶
The last time New York held a Constitutional Convention was
in 1967.
Am. Compl. ¶ 21.
The plaintiff Davis states that if a majority of voters
vote in favor of holding a Constitutional Convention, and if he
can thereafter obtain the 3,000 voter signatures required to
appear on the ballot, he intends to seek election as a nonpartisan delegate to the Convention.
Am. Compl. ¶¶ 23, 28.
Davis intends to campaign for the calling of a Constitutional
Convention by informing voters that they will have an
opportunity to elect delegates unaffiliated with any political
group.
Am. Compl. ¶ 27.
Davis alleges that the Candidate Laws
3
restrict the exercise of his constitutional rights because they
prevent him from running as an independent candidate untethered
to any particular political body name or symbol.
Am. Compl. ¶
32.
The Candidate Laws impose certain requirements before an
individual can appear on the ballot as an independent candidate.
To appear on the ballot, a candidate must submit a petition that
“select[s] [a] name . . . as the name of the independent body
making the [candidate’s] nomination,” and provide an “emblem of
such body.” 1
N.Y. Elec. Law § 6-140(1)(a).
If the candidate
fails to select a name for the independent body or provide an
emblem, the “officer or board in whose office the petition is
filed shall select an emblem or name or both to distinguish the
candidates thereby.”
N.Y. Elec. Law § 6-138(3)(f).
To appear
on the ballot, an independent candidate must also “accept the
designation or nomination as a candidate of each . . .
independent body.”
N.Y. Elec. Law § 6-146(1).
The Candidate
Laws also require that the nominating body’s name and emblem
appear on the ballot, and that the nominating body’s name appear
beside the candidate’s name.
See N.Y. Elec. Law § 7-104.
1
A candidate is free to select any name for the nominating body, provided
that the name does not cause confusion with the names of any previously filed
nominating body, is fewer than fifteen characters, and does not include words
such as “American,” “United States,” “National,” “New York State,” “Empire
State,” or any abbreviation thereof. See N.Y. Elec. L. §§ 2-124(2)-(3). A
candidate may also choose any emblem as long is it not similar to other
emblems used by governmental bodies, religious entities, or other groups such
that it would potentially cause confusion. See N.Y. Elec. L. § 2-124(2).
4
The plaintiff Davis brought suit against the Commissioners
of the New York State Board of Elections and the Commissioners
of the New York City Board of Elections.
15.
See Am. Compl. ¶¶ 12-
Davis alleges that the Candidate Laws severely burden his
First Amendment rights of free belief, speech and association,
and to be free of government-compelled belief, speech, and
association.
Am. Compl. ¶ 39.
Davis also claims that the
Candidate Laws violate the Equal Protection Clause of the
Fourteenth Amendment by discriminating between candidates who
choose to be nominated as a delegate to a Convention by a
specified body, and unaffiliated candidates who oppose being
nominated by a nominating body.
Am. Compl. ¶ 41.
The plaintiff
seeks declaratory relief declaring that the Candidate Laws are
unconstitutional both facially and as applied, as well as
injunctive relief enjoining the defendants from enforcing the
challenged provisions.
Am. Compl. ¶ 42.
The defendants filed a motion to dismiss pursuant to Rules
12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure on
the grounds that this Court lacks subject matter jurisdiction,
and that the plaintiff’s First Amendment Complaint fails to
state a claim upon which relief can be granted.
5
III.
A.
The defendants argue that the plaintiff’s complaint should
be dismissed under Rule 12(b)(1) because his claim is not ripe,
and he therefore lacks standing.
“[T]o satisfy Article III's standing requirements, a
plaintiff must show (1) it has suffered an ‘injury in fact’ that
is (a) concrete and particularized and (b) actual or imminent,
not conjectural or hypothetical; (2) the injury is fairly
traceable to the challenged action of the defendant; and 3) it
is likely, as opposed to merely speculative, that the injury
will be redressed by a favorable decision.”
Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
180–81 (2000).
Overlapping with the standing doctrine is the doctrine of
constitutional ripeness.
See Nat'l Org. for Marriage, Inc. v.
Walsh, 714 F.3d 682, 688 (2d Cir. 2013) (“Often, the best way to
think of constitutional ripeness is as a specific application of
the actual injury aspect of Article III Standing.”).
The
purpose behind the doctrine of constitutional ripeness is to
“prevent[] a federal court from entangling itself in abstract
disagreements over matters that are premature for review because
the injury is merely speculative and may never occur.”
In re
Methyl Tertiary Butyl Ether (MTBE) Prod. Liab. Litig., 725 F.3d
6
65, 110 (2d Cir. 2013) (quoting Ross v. Bank of Am., N.A. (USA),
524 F.3d 217, 226 (2d Cir. 2008)).
A requirement for
constitutional ripeness is “that the plaintiff’s injury be
imminent rather than conjectural or hypothetical.”
Id.; Coffran
v. N.Y.C. Pension Fund, 46 F.3d 3, 4 (2d Cir. 1995)(per curiam)
(“Article III court[s] cannot entertain a claim which is based
upon contingent future events that may not occur as anticipated,
or indeed may not occur at all.” (quoting Oriental Health Spa v.
City of Fort Wayne, 864 F.2d 486, 489 (7th Cir. 1988))); see
also Schulz v. Cuomo, 22 N.Y.S. 3d 602, 605-06 (App. Div. 2015)
(dismissing as not ripe for adjudication a declaratory judgment
action seeking to bar certain officials from participating as
delegates to the Constitutional Convention because it was
speculative that the Convention would ever occur).
Moreover,
“[a] plaintiff must allege something more than an abstract,
subjective fear that his rights are chilled in order to
establish a case or controversy.”
Walsh, 714 F.3d at 689.
Here, the plaintiff alleges two distinct phases of possible
injury.
The first is an alleged injury to the plaintiff’s
ability to campaign for a Constitutional Convention.
The second
injury relates to whether –- assuming a Convention is called –the plaintiff will be hampered in his efforts to appear on the
ballot as a non-partisan candidate.
7
As for the first alleged harm, the plaintiff argues that he
has a currently cognizable injury due to his alleged inability
to argue to potential supporters that the Convention can be
attended by non-partisan delegates.
But it is plain that
regardless of the Candidate Laws, the plaintiff remains free to
argue for the election of non-partisan candidates to the
Convention and that, in his view, the Convention should be
peopled by such candidates.
Despite the necessity of a
nominating body in order to appear on the ballot, the body need
not be partisan or political.
Indeed, the New York Election Law
specifically refrains from defining independent nominating
bodies as political.
See N.Y. Elec. Law § 1-104(12) (“The term
‘independent body’ means any organization or group of voters
which nominates a candidate or candidates for office to be voted
for at an election, and which is not a party as herein
provided.”).
As the defendants note, the Candidate Laws do not
prevent the plaintiff from running as a candidate for a nonpartisan or unaffiliated committee.
Nor do the Candidate Laws
prevent the plaintiff from arguing that other candidates should
likewise run on a non-partisan basis.
The plaintiff claims that the Candidate Laws defeat one of
his “core messages . . . namely that a Convention need not be
dominated by partisan political interests because unaffiliated
non-partisan candidates, perceived as such by the voters, will
8
be able to run and attract the votes of people concerned about
undue partisanship.”
Davis Decl. ¶ 3.
But the plaintiff fails
to explain how the Candidate Laws interfere with his ability to
communicate this exact message. 2
In fact, the plaintiff has
already established a campaign website that states that the
plaintiff “intends to run as a non-partisan candidate for
convention delegate . . . if a convention is called,” and
further acknowledges that he already has “organized, met and
corresponded with an informal discussion group of persons,
including prominent former leaders of New York State and
municipal government, who favor calling a Constitutional
Convention.”
Davis Decl. ¶ 6; Schwartz Decl. Ex. A-1.
Davis
also admits that he has “already appointed a campaign finance
Treasurer, opened a campaign finance committee bank account,
registered that ballot issue committee with the New York State
Board of Elections (“State Board”), raised monies to fund [his]
advocacy, filed receipts and expenditures disclosure with the
State Board and established a website for that advocacy.”
Davis
Decl. ¶ 3.
The plaintiff is already engaging in the political speech
that he claims is being unconstitutionally burdened by the
2 The plaintiff relies primarily on his own affidavit and an affidavit from a
supporter to claim that he is currently being injured. However, the
descriptions of his alleged injury in both affidavits are completely
conclusory, such that they do not support a claim of current injury. See
Attica Cent. Sch., 386 F.3d at 110.
9
Candidate Laws; the plaintiff’s alleged injury-in-fact is in
actuality nothing “more than an abstract, subjective fear that
his rights are chilled” that is insufficient to “establish a
case or controversy.”
Walsh, 714 F.3d at 689; see also Zherka
v. DiFiore, 412 F.App’x 345, 348 (2d Cir. 2011) (summary order)
(concluding that a plaintiff could not establish a cognizable
injury when it continued to participate in allegedly chilled
First Amendment activity because any “claim of [a] chilling
effect was purely subjective and . . . plaintiffs have provided
no objective evidence of a reasonable fear of prosecution”).
There is no plausible basis to conclude that the plaintiff is
currently being injured by the Candidate Laws.
The plaintiff unsuccessfully attempts to liken the facts of
his case to Walsh.
But Walsh involved a plaintiff who wanted to
express political messages related to an election being held a
month away, and the plaintiff provided evidence of a political
advertisement that, if aired, could subject the plaintiff to
civil or criminal liability.
714 F.3d at 686.
Here, by
contrast, the plaintiff’s political messages relate to a vote
for a Constitutional Convention that will be held in November
2017, and an election for delegates to the Convention that will
be held, if ever, in November 2018.
Moreover, the plaintiff
fails to specify any current or proposed political activity that
10
would precipitate a credible threat of criminal or civil
liability as a result of the Candidate Laws.
The lack of any direct restrictions that the Candidate Laws
currently impose on the plaintiff makes his reliance on Lerman
v. Board of Elections in the City of New York, 232 F.3d 135 (2d
Cir. 2000) similarly unpersuasive. In Lerman, the court found
that a plaintiff had standing to challenge a requirement that
all witnesses to ballot access petitions be residents of the
relevant political subdivision, because the New York City Board
of Elections had stricken all petitions witnessed by the nonresident plaintiff.
See Lerman, 232 F.3d at 138, 142.
In this
case, the plaintiff does not allege that the defendants have
even objected to any advertising by the plaintiff, much less
taken any action against it.
Moreover, there is no imminent
threat that the defendants will take any action against any
nominating petitions for the plaintiff because no such petitions
could be circulated until after voters decide in November 2017
whether to hold a Constitutional Convention. 3
The plaintiff’s references to New Mexicans for Bill
Richardson v. Gonzales, 64 F.3d 1495 (10th Cir. 1995) and Miller
3
The plaintiff also fails in his attempt to rely on Lerman to argue that he
has third-party standing to bring his claim. The plaintiff has failed to
show that any third party is being injured for whom the plaintiff could
assert rights. As the lack of any injury-in-fact makes clear, the plaintiff
has failed to “demonstrate a substantial risk that [the] application of the
[Candidate Laws] will lead to the suppression of speech.” Lerman, 232 F.3d
at 143-44.
11
v. Brown, 462 F.3d 312 (4th Cir. 2006), are also unpersuasive.
The court in Gonzalez determined that the candidate plaintiff
had standing to challenge campaign finance laws that were
already restricting his ability to engage in political
fundraising, while also noting that the plaintiff had “shown
that possible statutory violations already have occurred which
might subject him to criminal prosecution.” 64 F.3d at 1500-02.
And the court in Miller concluded that a local political party
had standing to challenge Virginia’s open primary requirements
because such laws would “dramatically change[] the plaintiffs’
decisions about campaign financing, messages to stress, and
candidates to recruit.”
462 F.3d at 317.
Standing in stark
contrast to these cases, the plaintiff here fails to plead
sufficient facts showing that the Candidate Laws inhibit his
political activity in a way that resembles the challenged laws
in either Gonzalez or Miller.
In sum, the Candidate Laws do not
prevent the plaintiff from engaging in any constitutionally
protected activity, and the defendants are treating the
plaintiff equally with all other candidates.
The plaintiff has
failed to meet his burden to establish an injury-in-fact.
As to the plaintiff’s alleged injury that he will be
hampered from appearing on the ballot on a non-partisan basis if
a Convention were to be called, it is clear that any such injury
is “conjectural or hypothetical” rather than “actual or
12
imminent.”
Friends of the Earth, 528 U.S. at 180.
For the
plaintiff to appear on the ballot to the Constitutional
Convention as a potential delegate, a majority of New York
voters would first have to vote for a Constitutional Convention
in November 2017, something that they have failed to do since
1967.
Then, the plaintiff would be required to obtain 3,000
signatures of registered voters, 4 a process that the plaintiff
could not start until July 2018.
See N.Y. Elec. L. § 6-138(4).
Accordingly, if the Court were to address any claimed injury
related to the plaintiff’s appearance on a potential ballot, it
would be the equivalent of “entertain[ing] a claim . . . based
upon contingent future events that may not occur as anticipated,
or indeed may not occur at all.”
Coffran, 46 F.3d at 4 (quoting
Oriental Health Spa, 864 F.2d at 489).
Even if these contingencies were to materialize, it is
unclear how the plaintiff would be harmed by a requirement that
the plaintiff designate a name and emblem for his nominating
body.
The plaintiff remains free to choose any of a number of
titles, such as “unaffiliated” or “non-partisan,” so long as no
other candidates have such a designation.
See, e.g., Schulz v.
Williams, 44 F.3d 48, 55, 59 (2d Cir. 1994) (noting that a
“myriad of independent bodies . . . have held a place on New
4
The plaintiff makes no attempt to challenge the validity of the signature
requirement.
13
York’s Ballot,” including a body designated as “No Party,” and
upholding the constitutionality of a requirement that signers of
nomination petitions must also include their election district,
assembly district, and ward).
Moreover, the plaintiff
apparently has no qualms with being associated with a group in
relation to his candidacy, having already registered a committee
named “Friends of Evan Davis” with the State and New York City
Boards of Elections.
See Davis Decl. ¶ 6.
It is implausible to
conclude that requiring the plaintiff to choose a name and
emblem for his unaffiliated nominating body –- in effect,
requiring the plaintiff to designate a name and emblem for the
group supporting him –- results in a cognizable injury of a
constitutional dimension.
Cf. Timmons v. Twin Cities Area New
Party, 520 U.S. 351, 369–70 (1997) (concluding that a law
prohibiting candidates from appearing on a ballot as a candidate
of more than one party did not violate the plaintiff’s First and
Fourteenth Amendment’s associational rights).
While the plaintiff raises the specter that the defendants
will designate a false committee name or emblem for him, this
would occur only if the plaintiff fails to comply with the
Candidate Laws and opts not to designate a committee name and
emblem.
If the Court were to engage in conjecture and assume
this would occur, it would “entangl[e] itself in abstract
disagreements over matters that are premature for review because
14
the injury is merely speculative and may never occur.”
In re
MTBE, 725 F.3d at 110 (quoting Ross, 524 F.3d at 226).
It is evident that the plaintiff has failed to meet his
burden of establishing by a preponderance of the evidence that
this Court has jurisdiction to hear his claim.
201 F.3d at 113.
See Makarova,
The plaintiff’s claims are not
constitutionally ripe.
B.
Moreover, the plaintiff’s claims are also premature under
the doctrine of prudential ripeness.
See Simmonds v. INS, 326
F.3d 351, 357 (2d Cir. 2003) (noting that the doctrine of
prudential ripeness –- as distinct from constitutional ripeness
-- may be used by courts when a “case will be better decided
later and . . . the parties will not have constitutional rights
undermined by the delay”).
For the reasons stated above, it is clear that the issues
before the Court are not fit for judicial decision because the
plaintiff’s appearance on any ballot for a Constitutional
Convention are “contingent on future events or may never occur.”
Walsh, 714 F.3d at 691 (quoting N.Y. Civil Liberties Union v.
Grandeau, 528 F.3d 122, 132 (2d Cir. 2008)).
Moreover, because
the Candidate Laws do not in any plausible way limit the
plaintiff’s political activity, they do not “create[] a direct
and immediate dilemma” for the plaintiff.
15
Id.
This case is
plainly one where the Court should “avoid becoming embroiled in
adjudications that may later turn out to be unnecessary or may
require premature examination of, especially, constitutional
issues that time may make easier or less controversial.”
Simmonds, 326 F.3d at 357.
Accordingly, the plaintiff’s claims
are not prudentially ripe.
CONCLUSION
The complaint is dismissed without prejudice for lack of
subject matter jurisdiction.
Having concluded that the Court
lacks subject matter jurisdiction in this case, the defendants’
motion to dismiss the plaintiff’s complaint for failure to state
a claim is denied as moot.
The Clerk is directed to enter
Judgment and to close this case.
The Clerk is also directed to
close all pending motions.
SO ORDERED.
Dated:
New York, New York
November 4, 2016
______________/s/______________
John G. Koeltl
United States District Judge
16
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