Golden v. Clark

Lead Opinion

OPINION OF THE COURT

Simons, J.

This appeal questions whether the voters of New York City may adopt a Charter provision that requires high city officers to forego certain political offices as a qualification for holding public office. Plaintiffs, various City and political party officials, voters and political parties, instituted this action asserting that the provision, section 2604 (b) (15) of the New York City Charter,¹ deprives them of their fundamental rights under the State Constitution, that it does so without compelling justification and that it is, therefore, void. Defendants are the chairman and members of the City’s Conflicts of Interest Board charged with implementing and enforcing the section. After issue was joined, both sides moved for summary judgment. Supreme Court granted plaintiffs’ motion and declared the section void and the matter is now before us on direct appeal pursuant to CPLR 5601 (b) (2). There should be a reversal.

I

During the latter 1980’s corruption was exposed in the New York City government centering on Donald Manes, Borough President and Democratic leader of Queens, and a number of investigations were initiated by Federal and State authorities. Before the investigations concluded, several public and party officials in the City were convicted of criminal activities and sentenced to jail. These disclosures provided the impetus for the appointment by Governor Cuomo and Mayor Koch of a State-City Commission on Integrity in Government charged with the responsibility of assessing the lessons learned from the investigations and recommending reforms. In its report, the Commission called for the revision of the ethical provisions of the City Charter to protect the public against corruption and undue influence of a business or political nature.

At the time, the Charter was undergoing revision as a result of extended litigation in the Federal courts challenging the form of the city government, particularly the makeup and powers of the Board of Estimate (see, Morris v Board of Estimate, 647 F Supp 1463, affd 831 F2d 384, affd 489 US 688). The New York City Charter Revision Commission, appointed for that purpose, also recognized the weakness of the existing provisions governing ethical matters. Accordingly, it decided to recast chapter 68 of the Charter, entitled "Conflicts of Interest”, and submitted to the electorate a package of revisions addressing the issue. Section 2604 (b) (15) was among those the voters approved. Plaintiffs maintain that the section violates several provisions of the State Constitution (NY Const, art II, § 1 [right to vote]; art I, § 1 [right against disfranchisement]; art I, § 11 [equal protection]; art I, § 9 [right of association]; art I, § 8 [freedom of speech]).²

n

Plaintiffs contend first that section 2604 (b) (15) denies them equal protection of the law by infringing on various fundamental rights. The threshold determination is whether the challenged provision establishes a classification which burdens those rights. If it does, it must withstand strict scrutiny and is void unless necessary to promote a compelling State interest and narrowly tailored to achieve that purpose (see, Matter of Rosenstock v Scaringe, 40 NY2d 563; Alevy v Downstate Med. Center, 39 NY2d 326, 331-332). If plaintiffs’ fundamental rights are not impaired, then the provision may be sustained if there is a rational basis for its enactment (Maresca v Cuomo, 64 NY2d 242, 250; Matter of Rosenstock v Scaringe, 40 NY2d 563, supra).

A

We reviewed claims similar to those of plaintiffs in Matter of Rosenstock v Scaringe (supra). In that case, plaintiff challenged section 2103 (3) of the Education Law which prohibits more than one member of a family from being a member of the same board of education in any school district. She contended that the provision was an unconstitutional infringement under the Equal Protection Clauses of the Federal and State Constitutions of both her personal right to seek public office and the electorate’s fundamental right to vote. We held that the direct impact of the law was on the right to hold office which was not sufficient to require strict scrutiny of the statute (citing Bullock v Carter, 405 US 134, 142-144). Insofar as the fundamental right to vote was concerned, the statute had only an incidental effect, we said, and did not disfranchise any identifiable class of the electorate. Accordingly, we applied a rational basis test and found the law to be rationally related to the legitimate State interest of insuring that a board of education represent a wide cross section of the community. Plaintiffs maintain that the Rosenstock decision is not applicable to this action because it relates to positions on a school board. No persuasive constitutional basis for distinguishing that office from offices of other municipal corporations is suggested, however, and we find none.

Plaintiffs also rely on several Federal decisions. An analysis of them is appropriate because our State Constitution’s equal protection guarantee is as broad in its coverage as that of the Fourteenth Amendment (see, Under 21 v City of New York, 65 NY2d 344, 360, n 6; Matter of Elser v Walters, 56 NY2d 306, 313-314).

Generally, the Supreme Court has identified two types of ballot access cases which involve fundamental rights and require heightened scrutiny: restrictions based on wealth, which unfairly burden the availability of political opportunity, and restrictions arising from classification schemes that impose special burdens on new or small political parties or independent candidates (see, Clements v Fashing, 457 US 957, 964; see generally, Tribe, American Constitutional Law § 13-19 [2d ed 1988]). The two types are illustrated by Bullock v Carter (405 US 134, supra) and Illinois Elections Bd. v Socialist Workers Party (440 US 173).

Bullock v Carter (supra) involved a Texas statute imposing substantial filing fees on potential candidates as a condition to the right to run for local offices. Although the court found that the existence of barriers to a candidate’s access to the ballot "does not of itself compel close scrutiny”, it nonetheless held the filing fee requirement unconstitutional because it was "patently exclusionary [in] character. * * * fall[ing] with unequal weight on voters, as well as candidates, according to their economic status.” (Bullock v Carter, supra, at 143-144.) Inasmuch as the statute had a direct and appreciable impact on the right to vote, the court applied strict scrutiny ánd, finding no compelling State interest for the impositions, ruled that the statute denied Texas citizens equal protection of the laws (see also, Lubin v Panish, 415 US 709).

In Illinois Elections Bd. v Socialist Workers Party (440 US 173, supra), the court struck down provisions of an Illinois law which burdened independent candidates and small political parties running for offices of a political subdivision by requiring them to file petitions with signatures equaling 5% of the number of votes cast in the previous election in that subdivision. The law required only 25,000 signatures for State-wide candidates, however, and therefore produced incongruous results in Chicago where a new party or independent candidate had to obtain substantially more than 25,000 signatures to gain access to the ballot. The court applied strict scrutiny to the law because it burdened the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively (see also, American Party v White, 415 US 767, 780).

By contrast, in Clements v Fashing (457 US 957, supra), the Supreme Court upheld two provisions of the Texas Constitution which restricted a public official’s ability to become a candidate for another public office. A "serve-your-term” provision prohibited officeholders from cutting short their current terms to serve in the State Legislature and a "resign-to-run” rule provided that holders of certain offices automatically resign their positions if they become candidates of any other elected office. The court again refused to classify candidacy as a fundamental right (Clements v Fashing, supra, at 963 [plurality opn]) and held that the challenged provisions neither unfairly burdened the availability of political opportunity nor did they contain any classification that imposed special barriers on minority political parties or independent candidates. Justice Stevens, concurring, found no need to decide whether "strict scrutiny” or "rational basis” was the correct standard because he found that the disparate treatment in the case was not inconsistent with any Federal interest protected by the Equal Protection Clause.

Section 2604 (b) (15) comes within the Clements rationale. It neither imposes a barrier to candidacies based on wealth nor restricts the political opportunity of minorities, minority political parties or independents by means of an impermissible classification scheme. Rather, the section is neutral in its application and the burden it imposes on certain high officeholders does not "depend upon political affiliation or political viewpoint.” (See, Clements v Fashing, supra, at 965.) Moreover, the section has no direct impact on one’s fundamental right to vote and it does not disfranchise any identifiable class of voters (see, Matter of Rosenstock v Scaringe, supra). Its impact on voting rights is, at most, only incidental.

B

Inasmuch as plaintiffs’ fundamental rights have not been sufficiently impaired by section 2604 (b) (15) to require strict scrutiny, the section can be sustained against an equal protection challenge if it is shown to be rationally related to some conceivable and legitimate State interest (Maresca v Cuomo, supra; Matter of Rosenstock v Scaringe, supra; Alevy v Downstate Med. Center, supra, at 332).

Section 2604 (b) (15) is intended to eliminate conflicts of interest that arise when high public officials are simultaneously subject to the demands of both their constituencies and their political parties, to broaden opportunities for political and public participation, to reduce the opportunities for corruption inherent in dual officeholding, and, through all of these methods, to increase citizens’ confidence in the integrity and effectiveness of their government. These are legitimate governmental purposes and have been identified as such both judicially and legislatively. Thus, the courts have upheld laws limiting the partisan political activity of high-ranking city officials (see, Belle v Town Bd., 61 AD2d 352, 358 [forbidding town officers, employees or members of administrative boards from holding certain positions in political parties]) or limiting the political activity of State employees because of the public office they hold (Matter of Purdy v Kreisberg, 47 NY2d 354, 361-362 [rule proscribing police activity in political campaigns]; Boyle v Kirwin, 39 AD2d 993 [forbidding State police from holding public or political office]; Matter of Lecci v Looney, 33 AD2d 916, 917 [police officers prohibited from active politics and from active participation in any movement for the nomination or election of candidates for political or public office], Iv denied 26 NY2d 612).

The Legislature has also recognized the legitimate State interest of such restrictions by enacting Public Officers Law § 73 (9) which forbids certain party officers from serving as "a judge * * * attorney-general or deputy or assistant attorney-general or solicitor general, district attorney or assistant district attorney” (see also, Matter of Burns v Wiltse, 303 NY 319 [dual nomination for candidacy prohibited under County Law]). Indeed, the Legislature has forbidden even former State officers and legislators from engaging in certain activity related to their prior office for two years after their termination (Public Officers Law §73 [8]). As plaintiffs concede, in the absence of an infringement on a fundamental right, such laws are within the Legislature’s "hardly doubted power” (Rapp v Carey, 44 NY2d 157, 160; see also, Forti v New York State Ethics Commn., 75 NY2d 596, 612-613 [declaring Public Officers Law § 73 (8) constitutional on equal protection grounds because the Legislature could rationally conclude that risk of undue influence, or the appearance thereof, resulting from prior State service is significant]). Section 2604 (b) (15) is addressed to these State interests and is rationally related to advancing them. Consequently, it does not violate plaintiffs’ right to equal protection under the State Constitution.

m

Plaintiffs also allege that the City Charter provision, by prohibiting high City officials from holding certain political offices, violates fundamental rights of association and free speech secured to political parties and individuals by the State Constitution (NY Const, art I, §§ 8, 9).

Analysis starts by examining whether the challenged provision significantly burdens rights protected by the State Constitution. If it does, then it may be sustained only if it advances a compelling State interest (see, Eu v San Francisco Democratic Comm., 489 US 214, 222). Plaintiffs have failed to make that inquiry, however, and merely have assumed that section 2604 (b) (15) burdens political speech and associational rights. Finding no compelling State interest for the Charter provision, they contend it is invalid.

In our view, section 2604 (b) (15) does not impair constitutional rights of political parties and, therefore, the City need not demonstrate a compelling necessity for adopting it. Indeed, the section is entirely neutral on issues involving party politics and does no more than prohibit the holding of both high political office and high public office at the same time. It does not deprive political parties or their members of the right to associate with the individuals of their own choosing or the right to identify the people who constitute a political party. Nor does it prohibit political parties from expressing their opinions or selecting their own style of internal organization. The party is free to select a party official as its candidate for any position in City government and may also select a high City official to lead its party but the same person cannot represent the party members in both capacities at the same time. The dissenter contends that the restriction indirectly impairs the associational rights of political parties and that even "indirect restrictions may effect associational freedoms” and constitute a constitutional violation (see, dissenting opn, at 635, quoting Justice Brennan in Elrod v Burns, 427 US 347, 362). The point, however, is that there has been no impairment of plaintiff political parties’ associational rights, either directly or indirectly. Although groups of voters have a constitutional right to advance a candidate to represent their views, this associational right does not require that a particular individual serve as their candidate (see, Tribe, American Constitutional Law, at 1098, n 5 [2d ed]).

In contending otherwise, plaintiffs rely principally upon Tashjian v Republican Party (479 US 208) and Eu v San Francisco Democratic Comm. (supra), cases which differ from the one before us because they involve statutes that dictated how a political party should conduct its internal affairs. Thus, in Tashjian, the Republican Party of Connecticut challenged, on First Amendment grounds, a State election statute which required voters in any party primary to be registered members of that party. The Supreme Court held that the statute, which limited the group of registered voters whom the party could invite to participate in the basic function of selecting the parties’ candidates, deprived the party of its First Amendment right to enter into political association with individuals of its own choosing (Tashjian v Republican Party, supra, at 214-216).

In Eu the Supreme Court invalidated provisions of the California Election Code that prohibited official governing bodies of political parties from endorsing candidates in party primaries. The statute also controlled the size and composition of the State central committees, set forth the rules governing the selection and removal of committee members, set the maximum term of office for the chair of the State central committee and required that the chair rotate between residents of northern and southern California. The court found that this statute burdened the freedom of speech rights of political parties and their members by hindering the ability of the party to spread its message and the ability of voters to inform themselves about the candidates. Moreover, by dictating the organization and composition of the parties’ governing bodies and banning primary endorsements, the law also infringed upon a party’s protected associational right to identify the people who constituted the party and to select a leader who best represented its ideology and preferences.

These authorities are not persuasive because New York City’s Charter provision, unlike the statutes considered in those cases, does not speak to political party matters. It speaks to the qualifications for holding public office and was intended to do no more than prevent conflicts of interest and the possible corruption in City government they may engender by imposing qualifications on certain high City officials. It leaves political parties free to organize and participate in the election process without constraint.

Moreover, the section does not impermissibly burden the fundamental rights of the individual plaintiffs. The Supreme Court decision in Civil Serv. Commn. v Letter Carriers (413 US 548, 565) is dispositive. Although recognizing the extensive impairment of Federal employees’ First Amendment rights by the Hatch Act, the court there upheld its limitations on partisan political activities because they were necessary to insure that the government and its employees not only execute the laws impartially but also appear to the public to be doing so (see also, Broadrick v Oklahoma, 413 US 601). The Supreme Court referred to these decisions in Clements v Fashing (457 US 957, 972, supra) when discussing the First Amendment rights of elected State officials and suggested that even broader restraints would be permissible for elected officeholders, presumably because of their greater powers and responsibilities. Section 2604 (b) (15) is much less restrictive than the statute addressed in the civil servant cases, however, and permits City officials to engage in a broad range of personal or financial activity in support of a candidate or cause. Any de minimis burden the Charter provision imposes on individual rights of expression or association is justified by the important governmental interests underlying it (see, supra, at 626).³

IV

Finally, plaintiffs allege that section 2604 (b) (15) of the New York City Chárter constitutes an impermissible delegation of rule-making authority to the Conflicts of Interest Board. The provision authorizes the Board to promulgate rules defining two specific terms, i.e., (1) which enumerated public servants are "charged with substantial policy discretion”, and therefore subject to the section’s prohibition, and (2) the "lesser political officefs]” a member of the City Council may hold.

As we noted in Matter of Levine v Whalen (39 NY2d 510, 515), "[t]he Legislature may constitutionally confer discretion upon an administrative agency only if it limits the field in which that discretion is to operate and provides standards to govern its exercise.” The provisions of the Charter itself make clear that the framers sought to bar public servants with "substantial policy discretion” from certain party offices and to permit persons holding "lesser political offices” than district leader to also serve as City Council members. Section 2600, the preamble to chapter 68, sets forth the guiding purpose of the chapter, stating: "These prohibitions on the conduct of public servants are enacted to preserve the trust placed in the public servants of the city, to promote public confidence in government, to protect the integrity of government decision-making and to enhance government efficiency.” Section 2603 (a), which delegates to the Board the general power to make such rules as are necessary under the chapter, also provides direction by stating that such rules are to be "consistent with the goal of providing clear guidance regarding prohibited conduct.” Taken together, these Charter provisions provide reasonable standards to govern the Board’s action in a limited and specified field for a stated purpose (see, Matter of Consolidated Edison Co. v Department of Envtl. Conservation, 71 NY2d 186, 191; Matter of Levine v Whalen, 39 NY2d 510, 515, supra).

V

In sum, plaintiffs’ challenges must fail. There is simply no basis for plaintiffs’ assertions that a qualification for public office that broadens participation in government by addressing the conflicts and corruption that have resulted from the concentration of power in a few officeholders, somehow restricts associational or expressional freedoms. This conclusion may be reached by an application of common sense and logic, but it is also soundly supported by traditional constitutional analysis. The Charter provision, a result of New York City’s recent sordid experience, and the desire of its electorate to restore public confidence in government, is easily sustainable after that analysis is made.

Accordingly, the judgment of Supreme Court should be reversed, with costs, plaintiffs’ motion for summary judgment denied, defendants’ cross motion for summary judgment granted, and section 2604 (b) (15) of the New York City Charter declared constitutional.

Notes

1 . Section 2604 (b) (15) states:

"Prohibited Conduct

* ** *

"No elected official, deputy mayor, deputy to a citywide or boroughwide elected official, head of any agency, or other public servant who is charged with substantial policy discretion as defined by rule of the board may be a member of the national or state committee of a political party, serve as an assembly district leader of a political party or serve as the chair or as an officer of the county committee or county executive committee of a political party, except that a member of the council may serve as an assembly district leader or hold any lesser political office as defined by rule of the board.”

2 . Although plaintiffs rest their case solely on State grounds, they have not distinguished the State constitutional provisions from their Federal counterparts nor have they attempted to demonstrate how the State provisions, either singly or in combination, establish any more or greater rights than those guaranteed to the citizens of New York by the Federal Constitution (see, People v P. J. Video, 68 NY2d 296, 301-303; see also, People v Alvarez, 70 NY2d 375, 378-379). They argue only that fundamental rights guaranteed them by the State Constitution have been impaired and seek to persuade the Court that section 2604 (b) (15) cannot survive strict scrutiny. Paradoxically, in doing so plaintiffs deny the applicability of the few available State precedents and rely principally on Federal law.

3 . The dissent charges the majority, inaccurately, with applying "a standard of review less than strict scrutiny” to test whether section 2604 (b) (15) violates the individual plaintiffs’ speech and associational rights (dissenting opn, at 637; see also, at 634-635, n 5). However, standards of review are applied only to provisions which impair constitutionally protected rights (see, Elrod v Burns, 427 US 347, 362; Eu v San Francisco Democratic Comm., 489 US 214, 222; Tashjian v Republican Party, 479 US 208, 214; Anderson v Celebrezze, 460 US 780, 789). Since there is no significant impairment of plaintiffs’ speech and associational rights in this case, there is no need to engage in an examination of whether section 2604 (b) (15) withstands strict scrutiny analysis (see, dissenting opn, at 632, 641, n 8).

---

Dissenting Opinion

Hancock, Jr., J.

(dissenting). A compelling theme has persisted in New York jurisprudence from colonial times.¹ It reflects the deeply rooted concern in our State for safeguarding expression-related freedoms. The wording of the State Constitution, we have noted, is more expansive than the First Amendment² of the United States Constitution (see, O’Neill v Oakgrove Constr., 71 NY2d 521, 528-529, and at 531 [Kaye, J., concurring]) and we have maintained a consistent tradition of providing the broadest possible protection of such freedoms, "often broader than the minimum required by the First Amendment” (O’Neill v Oakgrove Constr., supra, at 529, n 3; see, People ex rel. Arcara v Cloud Books, 68 NY2d 553, 557-558). Today, however, in a seeming break with this constant theme, the court applies a narrow interpretation of article I, §§ 1, 8 and 9 of our State Constitution — one which appears to afford decidedly less protection to expressional and associational freedoms than the First Amendment.

It upholds a Charter provision which cuts sharply into two liberties which are clearly protected under the First Amendment and which, under our established New York tradition, should be entitled to the same, if not greater, protection under article I, §§ 1, 8 and 9: (1) the freedom of association of political parties and their adherents; and (2) the expressional and associational rights of candidates for political office and of the voters who might support and vote for them (see, e.g., Illinois Elections Bd. v Socialist Workers Party, 440 US 173, 184; Bullock v Carter, 405 US 134, 142-144; see also, Clements v Fashing, 457 US 957, 986, n 8 [Brennan, J., dissenting]). And the court reaches its conclusion by avoiding the application of any level of scrutiny — strict or otherwise. It simply brushes aside as meaningless the serious invasion of plaintiffs’ freedoms of association and expression. No authority has been cited for the propositions that an invasion of a political party’s freedoms of this magnitude can properly be ignored as creating no impairment of constitutional rights (majority opn, at 628) or that a provision restricting the pool of available candidates and party leaders can in some way "broaden” participation in government, rather than "restrict[ ] associational or expressional freedoms.” (Majority opn, at 631.) As to the invasion of the rights of candidates and voters, the majority concedes that if protected rights are burdened, strict scrutiny must be applied (id.). Nevertheless, it seemingly concludes that strict scrutiny analysis is not required on the ground that whatever burden is imposed is "de minimis” and "justified by the important governmental interests underlying it” (id., at 630). To my knowledge, the court’s responses to these constitutional challenges have no support in analogous case law or in recognized authorities (see generally, Tribe, American Constitutional Law § 12-26, at 1010-1022 [2d ed]).³ For these reasons and others which follow, I dissent.

I

The parties to this lawsuit espouse decidedly different views on the necessity for section 2604 (b) (15) and the extent to which it serves governmental interests. Regardless of these differences, one thing is certain: if it constitutes a significant intrusion on the freedoms of expression and association guaranteed under our State Constitution, it cannot be upheld unless it is found to serve a compelling governmental interest under strict scrutiny (see, Eu v San Francisco Democratic Comm., 489 US 214, 222; majority opn, at 627-628).

A

There can be no question that political parties have a constitutional right to be free from governmental interference with their internal affairs.⁴ This fundamental right — which stems from the parties’ constitutionally protected freedom of association (see, Democratic Party v Wisconsin, 450 US 107, 122-124; Kusper v Pontikes, 414 US 51, 56-58; Tribe, American Constitutional Law, at 790-791 [2d ed 1988]) — includes the freedom of a political party to choose its own leaders (see, Eu v San Francisco Democratic Comm., 489 US, at 223-229, supra) and select its own candidates (Tashjian v Republican Party, 479 US 208, 214-217). In Eu v San Francisco Democratic Comm. (supra, at 224), Justice Thurgood Marshall summarized the principle in these words: "It is well settled that partisan political organizations enjoy freedom of association protected by the First and Fourteenth Amendments. [Citations omitted.] Freedom of association means not only that an individual voter has the right to associate with the political party of her choice, [citations omitted], but also that a political party has a right to ' "identify the people who constitute the association,” ’ [citations omitted], and to select a 'standard bearer who best represents the party’s ideologies and preferences.’ ”

Section 2604 (b) (15) prohibits any party member who happens to hold one of several important party positions from serving in elective political office. Unquestionably, this prohibition infringes on the rights of political parties and their adherents to select and elect candidates of their choice to positions in city government (see, Tashjian v Republican Party, supra, at 214-217). Nor can it be doubted that section 2604 (b) (15), by precluding elected officers and virtually all important appointed officials from holding any one of several significant party positions (e.g., county leader, officer of the county committee, national or State committeemen), abridges the associational rights of parties concerning "decisions about the identity of * * * [their] leaders.” (See, Eu v San Francisco Democratic Comm., supra, at 229.)⁵

The majority holds, nevertheless, that because the provision only prohibits elected officials and certain important appointed officers from holding significant party positions — and does not expressly speak to any limitations on the party itself — there is no burden on the party’s associational rights (see, majority opn, at 628-630). The argument elevates form over substance, for the effect is the same whether the prohibition results from a measure which prevents elected and appointed officials from holding party office or whether it prevents the party from choosing these officials for party positions. Moreover, the contention squarely contradicts established authority to the effect that indirect restrictions may effect associational freedoms and require strict scrutiny analysis in the same way as restrictions which are direct (see, Elrod v Burns, 427 US 347; Buckley v Valeo, 424 US 1, 64-65). Indeed, as Justice Brennan stated in Elrod (supra, at 362): "It is firmly established that a significant impairment of First Amendment rights must survive exacting scrutiny. Buckley v. Valeo, 424 U. S., at 64-65; NAACP v. Alabama, 356 U. S. 449, 460-461 (1958). 'This type of scrutiny is necessary even if any deterrent effect on the exercise of First Amendment rights arises, not through direct government action, but indirectly as an unintended but inevitable result of the government’s conduct. * * *’ Buckley v. Valeo, supra, at 65. Thus encroachment 'cannot be justified upon a mere showing of a legitimate state interest.’ Kusper v. Pontikes, 414 U. S., at 58. The interest advanced must be paramount, one of vital importance, and the burden is on the government to show the existence of such an interest.” (Emphasis added.)

In my opinion, section 2604 (b) (15) necessarily constitutes a serious impairment of the constitutional freedoms of political parties. The challenged provision does not merely involve the government’s broad power to regulate the time, place and manner of elections. This provision clearly diminishes the pool of persons available to the party from which it may choose its representatives. Can there be any measure which encroaches more directly on the core freedom of a political party than one which restricts — on the basis of the candidate’s activities within the party — a political party’s power to perform the primary function for which it exists: the selection, nomination and election of persons who, in its opinion, are best suited to represent the party as candidates? And can any measure more surely curtail the autonomy of a political association than one which forces it to choose between using its talented advocates to direct its own affairs and using them to carry out its policies and public objectives as candidates for political office? But, regardless of how it is viewed, the debasement of these constitutional prerogatives of political parties is unquestionably significant. That being so, there is no way — consistent with established precedent (see, e.g., Elrod v Burns, supra)— that section 2604 (b) (15) can be upheld except by holding that it passes strict scrutiny.

Nor can it be an acceptable answer to the complaint of the political parties that section 2604 (b) (15) markedly reduces their freedom to select candidates and leaders to say to them that they need not be concerned because the section "simply puts high officials in public parties to a choice: whether to retain their high public office and abstain from holding political party positions or the converse.” (Amici brief, at 21 [emphasis added]; see, majority opn, at 629.) Defendants’ proposition, apparently, is that such a deprivation is of no consequence because nothing prevents a party from nominating a candidate who has been a high party official in the past or prevents it from choosing as one of its top party leaders someone who formerly held an elective or important appointed city position.

In short, the argument is that the section merely precludes a party from vesting the responsibilities of candidacy and high party office in the same person at the same time. But the argument overlooks a key point: the very person who the party believes is best suited to carry its standard as a candidate may be one of its prominent party leaders and the party’s interest may be best served by having this chosen candidate retain the party position.⁶ It is precisely this right of the political party to make such a choice — regardless of its wisdom — which the constitutional freedom of association guarantees (see, Eu v San Francisco Democratic Comm., supra, at 222-223; Tashjian v Republican Party, supra, at 214; Cousins v Wigoda, 419 US 477, 487). Section 2604 (b) (15) denies to the parties the right to do so.

Not surprisingly, no case has been cited for the proposition that a standard of review less than strict scrutiny should be applied to curtailments of associational freedoms of political parties of the type in question here. Moreover, to my knowledge, no court has upheld comparable restrictions under any standard. There is, however, substantial authority to the contrary. In Eu v San Francisco Democratic Comm. (supra), for example, the Supreme Court, applying strict scrutiny, invalidated various provisions of the California Election Code as violative of the basic rights of political parties to choose their own candidates and leaders. The court stated (supra, at 230): "By requiring parties to establish official governing bodies at the county level, California prevents the political parties from governing themselves with the structure they think best. And by specifying who shall be the members of the parties’ official governing bodies, California interferes with the parties’ choice of leaders. A party might decide, for example, that it will be more effective if a greater number of its official leaders are local activists rather than Washington-based elected officials. The Code prevents such a change.” (Emphasis added; see also, Tashjian v Republican Party, supra, at 214-217; Geary v Renne, 911 F2d 280 [9th Cir 1990].) Indeed, 80 years ago, our Court, in Matter of Callahan (200 NY 59), recognizing the fundamental principle that a party "has the right to choose whom it will for its candidate for office and to appeal to the whole electorate for votes in his behalf’ (id., at 61), invalidated a statute which curtailed that right (see also, Matter of Hopper v Britt, 204 NY 524, 530-532).

Defendants’ reliance on Civil Serv. Commn. v Letter Carriers (413 US 548) is misplaced. Far from holding that the limitations on Federal employees’ First Amendment rights imposed by the Hatch Act should be tested under a "rational basis” test, the court there found the aim of keeping Federal executive employees separate from partisan politics to be "in the best interest of the country, indeed essential” (413 US, at 557) and the court traced the history of the separation principle through the centuries (id., at 557-559). Unlike the asserted governmental interest here in preventing corruption by political and public officials, Letter Carriers — as this Court has previously recognized — involved the government’s interest as an employer in ensuring the stability and efficiency of its civil service arm (see, Evans v Carey, 40 NY2d 1008, 1009; see also, Matter of Curie v Ward, 46 NY2d 1046, 1052-1053 [Wachtler, J., dissenting]). Moreover, as Justice Brennan later explained in Elrod v Burns (427 US 347, supra): Letter Carriers upheld Hatch Act restraints "sacrificing political campaigning and management, activities themselves protected by the First Amendment [because] it was the Court’s judgment that congressional subordination of those activities was permissible to safeguard the core interests of individual belief and association.” (Id., at 370-371 [emphasis supplied].) Unlike Letter Carriers, here the infringement of plaintiffs’ associational rights cannot be said to be counterbalanced by any offsetting infringement of fundamental rights of others.

It is true that minimal restrictions and limitations on the methods of organizing political parties and reasonable regulations as to the time, place and manner of selecting party candidates and leaders have been allowed (cf., Anderson v Celebrezze, 460 US 780 [Ohio’s candidacy early filing deadlines held unconstitutional]). But such measures have been upheld only because they served the purpose of assuring the fairness, stability and integrity of the process and, therefore, could be found to further compelling interests of the State under strict scrutiny (see, Eu v San Francisco Democratic Comm., supra, at 229-231; and see, e.g., Rosario v Rockefeller, 410 US 752 [sustaining New York Election Law provision requiring voter to enroll in party of choice at least 30 days before general election to vote in primary]; Marchioro v Chaney, 442 US 191 [restricting size and composition of State committee]).

In contrast to such cases, the regulation here is not established for the purpose of assuring the fairness, stability or integrity of the process of selecting candidates or party leaders (see, Eu v San Francisco Democratic Comm., supra, at 229-231; Storar v Brown, 415 US 724, 730-733; Tribe, American Constitutional Law § 13-22 [2d ed]). The very purpose of section 2604 (b) (15) is to regulate who the candidates and party leaders should be, not how they should be chosen. The theory of the legislation is simply this: that corruption and conflicts of interest will be prevented by curtailing the parties’ rights to choose their candidates and leaders through a measure which makes it impossible for them to nominate any of their leaders for elective office or to select for one of their party leadership positions any elected officer or prominent appointed city official.

Cases such as Matter of Rosenstock v Scaringe (40 NY2d 563) and Clements v Fashing (457 US 957, supra) are not on point. They do not involve complaints brought by political parties for alleged violations of their associational rights to be free from governmental control (see, e.g., Cousins v Wigoda, supra, at 487; Buckley v Valeo, 424 US 1, 15, supra). Rather, these cases involve complaints brought by individuals, as in Rosenstock (supra), where a challenge was brought against a statute, on equal protection grounds, because it restricted a person’s right to serve on a board of education. And in Clements — an action brought by officeholders challenging restrictions on the right to seek election to other offices during incumbents’ current terms — the court, in upholding the restrictions, specifically noted that the provisions did not preclude the plaintiffs from holding offices in a political party (Clements v Fashing, supra, at 972). Thus, contrary to the majority view (majority opn, at 628), section 2604 (b) (15) abrogates fundamental rights of association of political parties guaranteed by the State Constitution (art I, §§ 8, 9) and must, therefore, be tested under strict scrutiny (see, Eu v San Francisco Democratic Comm., supra, at 229-231; Tashjian v Republican Party, supra, at 217; Elrod v Burns, supra, at 362; see generally, Berdon, The Constitutional Right of the Political Party to Chart Its Own Course: Defining Its Membership Without State Interference, 22 Suffolk U L Rev 933, 940).

B

In addition to the effect on parties’ fundamental associational rights, the challenged provision limits voters’ choices and, thus, curtails their opportunity to assert their preferences " 'through candidates or parties or both’ ” (Illinois Elections Bd. v Socialist Workers Party, 440 US 173, 184, supra [quoting Lubin v Panish, 415 US 709, 716]). As Justice Marshall emphasized in Illinois Elections Bd. (supra, at 184), by "limiting the choices available to voters, the [government] impairs the voters’ ability to express their political preferences. And for reasons too self-evident to warrant amplification here, * * * voting is of the most fundamental significance under our constitutional structure.” (See also, Tashjian v Republican Party, supra, at 215 [" ' "Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents” ’ ”]; Clements v Fashing, 457 US 957, 986, supra [Brennan, J., dissenting] ["the Court has clearly recognized that restrictions on candidacy impinge on First Amendment rights”].) Again, it is no answer to say that the challenged provision expressly affects only candidate requirements. "[T]he rights of voters and the rights of candidates do not lend themselves to neat separation” (Bullock v Carter, 405 US 134, 143, supra).

The voters’ rights here arise not only from article I, §§ 8 and 9 of the State Constitution which safeguard freedoms which would otherwise be protected by the First Amendment (see, supra, at 631-632), but also from article I, § 1 which expressly provides that no "member of this state shall be disenfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land.” From early in our history, the Court has noted that in regulating enfranchisement, the Legislature must do so "subject to and, presumably, in furtherance of the constitutional right and its enactment are to be construed in the broadest spirit of securing to all citizens * * * the right to freely to cast their ballots” (People ex rel. Goring v President & Bd. of Trustees, 144 NY 616, 620-621 [1895]; see, Matter of Crane v Voorhis, 257 NY 298,301 [1931] [the purpose of the Constitution is that " 'all voters shall, so far as the law provides, have equal, easy and unrestricted opportunities to declare their choice for each office’ ”]; Matter of Callaghan v Voorhis, 252 NY 14, 17-18 [1929] [the same]; see also, Green v Shumway, 39 NY 418, 426-427 [1868]).⁷

In sum the undeniable effect of section 2604 (b) (15) is that registered party voters are deprived of their rights (1) to select seven categories of party officials as elected city officers and (2) to choose specified officials as their party leaders. Because section 2604 (b) (15) implicates fundamental rights under article I, §§ 1, 8 and 9 of the State Constitution, the provision must pass strict scrutiny.

II

Defendants contend, however, that even if section 2604 (b) (15) is scrutinized strictly, it should be upheld as serving compelling governmental interests.⁸ Without hesitation, they proclaim that in "light of the corruption uncovered in the past five years in New York City it would seem obvious that * * * section 2604(b)(15) furthers compelling governmental interest” (appellant’s reply brief, at 11 [emphasis added]). In a similar vein, amici, under the rubric "Impetus for Ethical Reform” (amici brief, at 12), cite the "constant flow of bribes, PVB contracts and accompanying kickbacks” during the regime of Donald Manes, Borough President of Queens.

From this and the testimony of the sponsors of the legislation (amici brief, at 4-9), it is evident that the purpose of section 2604 (b) (15) is to prevent the corruption which has occurred in the past from occurring again; and the assumption underlying that purpose is that because some politicians have been corrupt in the past, it is likely that some will be corrupt in the future. Whether this premise is based on a proper appraisal of the level of honesty that the city may rightfully expect from its future public officeholders and politicians or one that tends unfairly to stigmatize all politicians as "suspect” because of the past sins of some is not the question. The question is whether this premise is a sufficient justification for the substantial intrusion into the rights of political parties, candidates and voters which section 2604 (b) (15) inflicts.

While some will say, perhaps, that it is unrealistic, even naive to think it, I firmly believe that most public and party officials remain true to their public trust and their oaths of office. Until now, the instruments for rooting out and preventing corruption in public and political office have been found in the polling places, in State and Federal prosecutors’ offices and in the newsrooms of newspapers and television and radio stations. Of course, I recognize the possibility that conflicting interests may tend to effect City officials in performing their public function when such officials maintain strong ties to their parties. To be sure, such officials are obligated to adhere to their oaths of office in face of many other potentially conflicting demands and interests.

The same possibility for conflict may be said to exist in the positions of majority and minority leaders of the Assembly and Senate, positions that are formally recognized by statute and vested with special prerogatives (see, Legislative Law §§ 6, 7). Similarly, at least a potential for conflict is present in the position of Board of Elections member which is constitutionally required to be based upon party representation (NY Const, art II, § 8). Indeed, in the same sense, a potential for conflict is inherent in the very system of electing governmental officials through the partisan political process, for elected officials have an allegiance both to their party and to their constituents. But recognition of the fact that some conflict inheres in the partisan political system does not mean that the system cannot serve the public honestly and effectively; it certainly does not justify the stringent restraints imposed by section 2604 (b) (15) on political parties in fulfilling their important roles in the governmental process.

This statute, which is premised on the notion that major party leaders are not to be trusted to hold high political office, can by no means be viewed as one which is narrowly tailored to accomplish the intended result of preventing corruption (compare, Buckley v Valeo, 424 US 1, 25, 44-48, supra [governmental interest in preventing corruption and the appearance of corruption inadequate to justify certain dollar expenditure limitations]; Dunn v Blumstein, 405 US 330, 353 [waiting period as prerequisite to vote "is not the least restrictive means necessary for preventing fraud”]; see generally, Note, Local Nonpartisan Elections, Political Parties and the First Amendment, 87 Colum L Rev 1677, 1698-1699 [discussing prevention of corruption as insufficient justification for restrictions on political party campaigning in nonpartisan schemes]). Manifestly, means far less drastic than truncating a party’s right to choose its candidates and leaders (in addition to the means already mentioned) are available to further the aim of preventing corruption — for example, Public Officers Law § 73-a (requiring full financial disclosure from high ranking elected and appointed officials) and Public Officers Law § 87 (providing for free access to governmental records).

Corruption in political and public office — as in other segments of our society — unfortunately does exist. It cannot be tolerated and, to be sure, all lawful steps to stop it are required. But it is far better, and unquestionably less harmful, to rely on an alert citizenry, diligent prosecutors and resourceful reporters to combat corruption — in ways which are consistent with our democratic process — than to resort to legislation that strikes at the very heart of the associational freedoms on which the process is based.

I would affirm Supreme Court’s judgment striking down section 2604 (b) (15) as violative of the State Constitution.

Chief Judge Wachtler and Judges Kaye, Alexander and Bellacosa concur with Judge Simons; Judge Hancock, Jr., dissents and votes to affirm in a separate opinion in which Judge Titone concurs.

Judgment reversed, etc.

1 . "This State has long provided one of the most hospitable climates for the free exchange of ideas. The tradition existed in colonial times, as is exemplified by the acquittal in 1735 of John Peter Zenger” (Matter of Beach v Shanley, 62 NY2d 241, 255 [Wachtler, J., concurring]).

2 . As we noted in O’Neill v Oakgrove Constr. (71 NY2d 521, 529, n 3) "Article I, § 8 of the Constitution assures, in affirmative terms, the right of our citizens to 'freely speak, write and publish’ and prohibits the use of official authority which acts to 'restrain or abridge the liberty of speech or of the press.’ ”

3 . Moreover, neither defendants nor amici advance the argument adopted by the majority that the political rights of the parties are not in any way burdened or that the candidates’ and voters’ challenges can be dismissed by simply identifying a governmental interest. Instead, defendants and amici assert that a rational basis test — rather than strict scrutiny — is applicable (see, appellant City’s brief, at 17-29; amici brief, at 31-35).

4 . In Cousins v Wigoda (419 US 477, 487-488), Justice William Brennan explained the constitutionally protected right of political association in this way: " 'There can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of "orderly group activity” protected by the First and Fourteenth Amendments. * * * The right to associate with the political party of one’s choice is an integral part of this basic constitutional freedom.’ Kusper v. Pontikes, 414 U. S. 51, 56-57 (1973). 'And of course this freedom protected against federal encroachment by the First Amendment is entitled under the Fourteenth Amendment to the same protection from infringement by the States.’ Williams v. Rhodes, 393 U.S. 23, 30-31 (1968). Moreover, '[a]ny interference with the freedom of a party is simultaneously an interference with the freedom of its adherents.’ Sweezy v. New Hampshire, 354 U. S. 234, 250 (1957)”. (See also, Berdon, The Constitutional Right of the Political Party to Chart Its Own Course: Defining Its Membership Without State Interference, 22 Suffolk U L Rev 933, 940 [because this associational freedom "is inseparable from at least the fundamental rights of speech and assembly, it is also a fundamental constitutional right”].)

5 . The freedom of association of political parties is deeply embedded in the constitutional law of our State (see, NY Const, art I, §8 [freedom of speech and press]; art I, § 9 [right to assembly and petition]; see also, Matter of Nicholson v State Commn. on Judicial Conduct, 50 NY2d 597, 607 ["the rights of political expression and association are at the heart of the First Amendment”]). Professor Lawrence Tribe has noted that the associational right is "among the preferred rights derived by implication from First Amendment’s guarantees of speech, press, petition and assembly” (Tribe, American Constitutional Law § 12-26, at 1010 [2d ed 1988]; see also, Starr, The Legal Status of American Political Parties, I, 34 American Political Science Review 439, 442-444 [June 1940] [referring specifically to the rights of free speech and to petition and assembly guaranteed in article I, §§ 8, 9 of the New York State Constitution]). As long ago as 1910, our court recognized the rights of political parties to be free from governmental interference (see, Matter of Callahan, 200 NY 59, 60-61 [invalidating restriction on nominating committee’s right to nominate the candidate of its choice]; see also, Matter of Hopper v Britt, 204 NY 524, 530-532). Moreover, our State Constitution (unlike the Federal Constitution) expressly recognizes the role of political parties in our system of democratic government (see, NY Const, art I, § 1; art II, § 8; see, Starr, op. cit., at 442-443 [the "mere mention of political parties in the State Constitution * * * is probably sufficient to establish them on a firm footing in constitutional law, and to give them a constitutional right to exist”]).

6 . For example, under section 2604 (b) (15), neither the State nor the national party may choose the Mayor of the City of New York to serve in the important policy-making role of member of the State or national committee, even though it may be in the best interest not only of the party but of the City, State and Nation that the Mayor serve in such position.

7 . The majority’s reliance on Clements v Fashing (457 US 957) for the proposition that "even broader restraints [than those imposed on judicial officers] would be permissible for elected officeholders, presumably because of their greater powers and responsibilities” (majority opn, at 630) is misplaced. In Clements, the court, in upholding restrictions barring judicial officers from seeking elective office noted the distinction between the duties of Judges and legislators and the extent to which they are prohibited by the nature of their respective offices from making politically motivated decisions. In contrast to Judges who are precluded from making decisions for political reasons, the court noted that "it is to be expected that a legislator will vote with due regard to the views of his constituents” (id., at 968; see, id., at 971).

8 . Nowhere in the majority opinion is it claimed that the section will survive a strict scrutiny analysis. Indeed, as noted (see, supra, at 633, n 3), the majority takes a position not advanced by defendants or amici: i.e., that no scrutiny of any kind is required.

Case Details

Case Name: Golden v. Clark

Court Name: New York Court of Appeals

Date Published: Oct 23, 1990

Citation: 1990 N.Y. LEXIS 3411

Court Abbreviation: NY