National Organization for Marriage, Inc. v. Walsh et al
Filing
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ORDER granting defendants' motion to dismiss (Dkt No. 25) in part under FRCP 12(b)(1); dismissing plaintiff's amended complaint; denying 2 Motion for Preliminary Injunction; denying 48 Motion for Preliminary Injunction; finding as moot 6 Motion to consolidate. Clerk of Court to close case. Signed by Hon. Richard J. Arcara on 10/25/2010. (JMB)
National Organization for Marriage, Inc. v. Walsh et al
Doc. 63
UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK
N A T IO N A L ORGANIZATION FOR MARRIAGE, INC. , P la in tiff, D E C IS IO N AND ORDER 1 0 -C V -7 5 1 A v.
JAMES W A L S H in his official capacity as co-chair of the New York State Board of Elections et al., D e fe n d a n ts .
I.
IN T R O D U C T IO N P e n d in g before the Court are motions by plaintiff National Organization for
M a rria g e , Inc. for a preliminary injunction (Dkt. Nos. 2, 48) under Rule 65 of the F e d e ra l Rules of Civil Procedure ("FRCP") and for consolidation under FRCP 6 5 (a )(2 ); and a motion to dismiss under FRCP 12 by all four named defendants in th is case, who are sued in their official capacities as co-chairs or commissioners o f the New York State Board of Elections ("BOE"). Either by injunction or, in the a lte rn a tive , by declaratory judgment, plaintiff seeks to prevent defendants from c la s s ifyin g it as a "political committee" as that term is defined in Section 14-100(1) o f New York's Election Law. Plaintiff seeks to avoid political committee status b e c a u s e such a classification would trigger various disclosure and reporting
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requirements elsewhere in Article 14 of the Election Law that, it believes, are u n c o n s titu tio n a l facially and as applied to it. Defendants seek dismissal on the g ro u n d s that plaintiff's claims are not ripe for review and that plaintiff's pleadings a re 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 C o u rt will grant defendants' motion in part, dismiss plaintiff's amended complaint fo r lack of subject-matter jurisdiction, and deny plaintiff's motions as moot. II. B AC K G R O U N D T h is case concerns plaintiff's desire to engage in advertisements and direct m a ilin g s in New York concerning the issue of same-sex marriage. According to p la in tiff's amended complaint,1 plaintiff is a tax-exempt 501(c)(4) organization fo u n d e d in 2007 under the Virginia Nonstock Corporation Act. Among other p u rp o s e s , plaintiff was incorporated "[t]o promote the importance of preserving m a rria g e as the union of one husband and one wife [and to] advocate for policies th a t will preserve the historic definition of marriage and the natural family that s p rin g s therefrom, as well as the rights of the faith traditions that support and s u s ta in the foregoing." (Dkt. No. 45-7 at 1.) Consistent with its corporate
On October 18, 2010, plaintiff filed an amended complaint and an a m e n d e d motion for a preliminary injunction (Dkt. Nos. 45, 48). The Court a c c e p ts the amended complaint as a superseding pleading under FRCP 1 5 (a )(1 )(B ). The Court accepts the amended motion papers because the Court's g ro u n d s for dismissal do not implicate defendants' lack of an opportunity to re s p o n d . 2
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purpose, plaintiff seeks to engage in radio and television advertisements, direct m a il, and publicly accessible Internet postings of its advertisements and mailings in New York prior to the November 2010 election. The amended complaint in c lu d e s transcripts of the proposed advertisements, which would conclude with a re q u e s t that the reader or viewer vote for New York gubernatorial candidate Carl P a la d in o . The amended complaint also includes a proposed postcard mailing th a t 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 1 6 , 2010 out of concern about the impact that Article 14 of New York's Election L a w would have on it. Specifically, plaintiff is concerned that defendants or BOE a s an entity would classify it as a political committee under New York Election L a w § 14-100(1). The definition of "political committee" in Section 14-100(1) re a d s in relevant part as follows: "[P]olitical committee" means any corporation aiding or promoting a n d any committee, political club or combination of one or more p e rs o n s operating or co-operating to aid or to promote the success o r 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 o ffic e or to aid or take part in the election or defeat of a candidate for n o m in a tio n at a primary election or convention, including all p ro c e e d in g s prior to such primary election, or of a candidate for any p a rty position voted for at a primary election, or to aid or defeat the n o m in a tio n by petition of an independent candidate for public office; b u t nothing in this article shall apply to any committee or organization fo r the discussion or advancement of political questions or principles w ith o u t connection with any vote or to a national committee 3
organized for the election of presidential or vice-presidential c a n d id a te s . N .Y . Elec. Law § 14-100(1) (W e s tla w 2010). Plaintiff "reasonably fears it is a political committee under New York law, N. Y. E L E C T IO N LAW § 14-100.1 (1988), since its speech is express advocacy" (Dkt. N o . 45 at 5 ¶ 18) and because that status would trigger several reporting and d is c lo s u re requirements found in several other provisions of Article 14 of the E le c tio n Law. The reporting and disclosure requirements in question include the p e rio d ic filing of sworn statements disclosing the amount of any donation re c e ive d and the identity of the donor (Elec. Law §§ 14-102, 14-108); the in c lu s io n , 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 c o n ta c t information with BOE (id. § 14-118); and the accounting of any c o n trib u tio n to the treasurer within 14 days of receipt (id. § 14-122). Plaintiff b e lie ve s that the burdensome nature of these requirements "is such that the s p e e c h would simply not be `worth it'" (Dkt. No. 45 at 56), which means that the re q u ire m e n ts would have a chilling effect that is not permitted under the First A m e n d m e n t. P la in tiff's motions reduce to whether the definition of "political committee" in E le c tio n Law § 14-100(1) unconstitutionally burdens the type of speech that p la in tiff seeks to produce in New York. In support of its motions, plaintiff argues
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that Section 14-100(1) is unconstitutional facially and as applied to it because it w o u ld place much greater burdens on its type of speech than the United States S u p re m e Court has permitted in cases such as Buckley v. Valeo, 424 U.S. 1 (1 9 7 6 ) and Citizens United v. FEC, 558 U.S. ____, 130 S. Ct. 876 (2010). In the a lte rn a tive , plaintiff seeks a declaratory judgment limiting Section 14-100(1) "to o rg a n iz a tio n s that are under the control of, or have the major purpose of n o m in a tin g or electing, a candidate or candidates." (Dkt. No. 45 at 8 ¶ 33.) In o p p o s itio n to plaintiff's motions and in support of their own motion to dismiss, d e fe n d a n ts contend that plaintiff lacks standing to bring its claims at this time b e c a u s e it has not stated any real or imminent injury that this Court could a d ju d ic a te . Additionally, defendants contend that plaintiff's pleadings are s u ffic ie n tly lacking in factual detail and sufficiently riddled with conclusory legal a s s e rtio n s that it has failed to state a cognizable claim. III. D IS C U S S IO N A. J u r is d ic tio n and Standing Generally
A s an initial matter, and especially because of defendants' pending m o tio n ,2 this Court must decide if it has jurisdiction over this case. See United F o o d & Commercial Workers Union, Local 919, AFL-CIO v. CenterMark Props. M e rid e n Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994) ("[I]n our federal system of Technically, defendants seek relief only under FRCP 8(a) and 12(b)(6). (S e e Dkt. No. 25.) The first point in defendants' memorandum of law, however, c o n c e rn s standing and essentially is a challenge under FRCP 12(b)(1). 5
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limited jurisdiction any party or the court sua sponte, at any stage of the p ro c e e d in g s , may raise the question of whether the court has subject matter ju ris d ic tio n . W h e re jurisdiction is lacking, moreover, dismissal is mandatory.") (in te rn a l quotation marks and citations omitted); see also Herrick Co., Inc. v. SCS C o m m c 'n s , Inc., 251 F.3d 315, 322 (2d Cir. 2001) ("W e cannot avoid addressing th e threshold question of jurisdiction simply because our finding that federal ju ris d ic tio n does not exist threatens to prove burdensome and costly, or because it may undermine an expensive and substantially completed litigation.") (citation o m itte d ). Specifically, this Court must decide whether plaintiff has standing to b rin g this case, because without standing, plaintiff's claims would amount only to im p e rm is s ib le invitations to offer legal advice. "[T]he irreducible constitutional m in im u m of standing contains three elements. First, the plaintiff must have s u ffe re d an `injury in fact'--an invasion of a legally protected interest which is (a) c o n c re te and particularized and (b) actual or imminent, not `conjectural' or `h yp o th e tic a l.' Second, there must be a causal connection between the injury and th e conduct complained of--the injury has to be fairly . . . trace[able] to the c h a lle n g e d action of the defendant, and not . . . th[e] result [of] the independent a c tio n of some third party not before the court. Third, it must be `likely,' as o p p o s e d to merely `speculative," that the injury will be "redressed by a favorable d e c is io n ." Lujan v. Defenders of Wildlife, 504 U.S. 555, 56061 (1992) (a lte ra tio n s in the original) (internal quotation marks and citations omitted). 6
B.
R ip e n e s s and the First Element of Standing
U p o n review of all the submissions from the parties both on papers and at o ra l argument, the Court's most immediate concern under the first prong of the s ta n d in g test is whether plaintiff's claims are ripe for review. That is, even if p la in tiff might have a cognizable claim against defendants or BOE at some point in time, does it have a cognizable claim right now? "The basic rationale of the rip e n e s s doctrine is to prevent the courts, through avoidance of premature a d ju d ic a tio n , from entangling themselves in abstract disagreements over a d m in is tra tive policies, and also to protect the agencies from judicial interference u n til an administrative decision has been formalized and its effects felt in a c o n c re te way by the challenging parties." Pacific Gas & Elec. Co. v. State Energy R e s . Conservation & Dev. Com'n, 461 U.S. 190, 20001 (1983) (internal q u o ta tio n marks and citation omitted). In the context of First Amendment litig a tio n , "[a] plaintiff bringing a pre-enforcement facial challenge against a s ta tu te need not demonstrate to a certainty that it will be prosecuted under the s ta tu te to show injury, but only that it has an actual and well-founded fear that the la w will be enforced against it." Vermont Right to Life Comm., Inc. v. Sorrell, 221 F .3 d 376, 382 (2d Cir. 2000) (internal quotation marks and citation omitted). The evidence available in the docket so far indicates that plaintiff's fear of a n improper classification under Section 14-100(1) is too remote. There is no e vid e n c e in the docket suggesting that plaintiff ever communicated with 7
defendants or any other BOE officials at all prior to the commencement of this c a s e . The lack of communication between the parties is critical because "[t]here h a s been no finding that [plaintiff] is a political committee within the meaning of E le c tio n Law § 14-100(1). Until that determination is made, [plaintiff] is under no o b lig a tio n to disclose the identity of its contributors as required by Election Law § 14-102(1). Further, such identification is not necessary for the purpose of d e te rm in in g whether [plaintiff] is a political committee." Wallace v. Wiedenbeck, 6 7 4 N.Y.S.2d 230, 231 (App. Div. 4th Dep't 1998). Because plaintiff would not h a ve to make any statutory disclosures until its status under Section 14-100(1) w e re determined by the state court system, it would have time to avail itself of the ju d ic ia l proceedings described in Article 16 of the Election Law in the event of a d e te rm in a tio n with which it disagreed. Additionally, plaintiff has barely a c k n o w le d g e d the second half of Section 14-100(1), which contains the explicit p ro vis io n that "nothing in this article shall apply to any committee or organization fo r the discussion or advancement of political questions or principles without c o n n e c tio n with any vote or to a national committee organized for the election of p re s id e n tia l or vice-presidential candidates." This provision, which the state L e g is la tu re added in response to N.Y. Civil Liberties Union, Inc. v. Acito, 459 F. S u p p . 75 (S.D.N.Y. 1978), would appear to give plaintiff at least a notable chance o f avoiding the disclosure requirements with which it does not wish to comply. Under these circumstances, there is no reason to believe that plaintiff faces 8
sanctions under Section 14-126 anytime soon, if ever, which means that any s u b s ta n tive analysis that the Court attempted now would be only an academic e xe rc is e concerning unripe claims. The Court thus finds that it lacks subject-matter jurisdiction over this case a n d will dismiss plaintiff's amended complaint accordingly. W ith o u t subjectm a tte r jurisdiction, an examination of any other issues that the parties have ra is e d is neither necessary nor appropriate. IV . C O N C L U S IO N F o r all of the foregoing reasons, the Court hereby grants defendants' m o tio n to dismiss (Dkt. No. 25) in part under FRCP 12(b)(1) and dismisses p la in tiff's amended complaint. The Court denies defendants' motion in all other re s p e c ts as moot. The Court also denies plaintiff's motion for a preliminary in ju n c tio n (Dkt. Nos. 2, 48) and motion to consolidate (Dkt. No. 6) as moot. T h e Clerk of the Court is directed to close this case. SO ORDERED.
s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE DATED: January 25, 2010
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