Lead Opinion
OPINION OF THE COURT
A New York County Grand Jury has issued subpoenas duces tecum for the membership lists of four Union Locals of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and they have moved to quash, claiming the subpoenas violated their First and Fourth Amendment rights under the United States Constitution. The courts below denied the motion, and petitioners’ subsequent motion for a stay, and they now have surrendered the lists to the District Attorney. We conclude that the District Attorney’s continued possession of the membership lists pending the completion of the Grand Jury’s investigation does not violate the constitutional rights of the Union Locals or their members and therefore affirm.
The proceeding arises out of an investigation into corruption in the carpentry and drywall industry. It focused primarily on high-ranking union officials but the prosecutor informed the court that he assumed that some rank and file members might also become targets. Pursuant to this investigation the New York County District Attorney’s office issued subpoenas duces tecum to Locals 17, 135, 257 and 608 of the Carpenters Union, requesting that each produce a list containing the names, addresses, home telephone numbers and Social Security numbers of their members. The Locals moved to quash the subpoenas, claiming violations of their First and Fourth Amendment rights. The District Attorney opposed the motion claiming that the First Amendment rights of petitioners’ members were not implicated but contending alternatively that even if membership in a union came within the associational rights addressed in the Federal cases, that the People had met the compelling State interest test and were entitled to the records. On the basis of these claims, the trial court conducted an in camera hearing during which it pressed the District Attorney on the need for the information, particularly the need for the
The Appellate Division refused to stay Supreme Court’s order and petitioners surrendered the lists to the District Attorney. It subsequently affirmed Special Term’s order on the merits and petitioners appeal to this court on constitutional grounds.
I
Although neither petitioners nor respondent contends that the appeal is moot, mootness is a doctrine related to subject matter jurisdiction and thus must be considered by the court sua sponte (see, Matter of Hearst Corp. v Clyne,
Nevertheless, an appeal is not rendered moot if there remain undetermined rights or interests which the respective parties are entitled to assert (Matter of District Attorney of Suffolk County,
II
The Locals’ primary argument is that the continued enforcement of the subpoenas will have an inevitable "chilling effect” on the association rights of their members. Specifically, the Locals contend that carpenters in New York City will perceive a connection between being a union member and bеing called before the Grand Jury and this perception may deter individuals from joining the union or discourage members from attending union meetings or engaging in robust debate with other members.
When a First Amendment claim is presented, the government may not enforce a subpoena of this type unless it is substantially related to a compelling governmental interest (Brown v Socialist Workers ’74 Campaign Comm.,
The cases petitioners cite in support of their claim are inapposite. In N. A. A. C. P. v Alabama (
Petitioners also claim the subpoenas are overbroad because, although the primary focus of the Grand Jury’s investigation is on the illegal activities of the Union leaders and stewards, the Grand Jury seeks the names, addresses and Social Security numbers of each member of the four Locals. They contend that the reasoning of the court in Local 1814, Intl. Longshoremen’s Assn. v Waterfront Commn. (667 F2d 267) requires reversal here.
In Waterfront a labor union and its political action committee brought suit to enjoin the Waterfront Commission from enforcing a subpoena issued during an investigation into whether longshoremen were being coerced into authorizing payroll deductions for contributions to a political action committee. The subpoena sought the list of all longshoremen who recently authorized payroll deductions. The District Court enforced the subpoena but only after modifying it to limit disclosure on a random basis to 10% of the namеs the Commission sought. The parties cross-appealed, and the Court of Appeals for the Second Circuit affirmed, holding that although disclosure of the names of the contributors to the PAC would have a chilling effect on free association rights the Commission had a compelling interest in obtaining them. The court observed that the subpoena bore a substantial relation to
Waterfront may be distinguished from this case on several grounds. First, the union in Waterfront raised a First Amendment claim because it feared that the disclosure of the names of contributors to political parties or political action committees sought by subpoena would discourage future activity or contributions by its members (see also, Pollard v Roberts, supra). Economic activity, such as membership in a union, may also be protected. As the Supreme Court noted in N. A. A. C. P. v Alabama (
But the effect subpoenas have on the membership of a union and participation in its activities is quite different from the effect subpoenas may have on membership in a political group or participation in its activities. Because of the advantages of union membership and the need to disclose it for employment it is not generally concealed or denied. Accordingly, we cannot presume that individuals would give up their union status, and corresponding assurance of well-paid jobs, simply because the Grand Jury knows they are union membеrs and petitioners have not demonstrated that organizational activity would be curtailed because of the delivery of the lists. Waterfront is also distinguishable because there the requesting governmental body had access to the names and addresses of the longshoremen from another source, the Commission’s membership list, a fact which certainly affected the balancing process performed by the courts. Some of the information here also could be obtained from other sources, as the District Attorney conceded, but not from any central list, only by far more intrusive searches through countless personal records. Finаlly, while a random selection of names in Waterfront sufficiently served the Commission’s interest in determining whether coercion of the union rank and file existed, in this case we agree with the courts below, after examining the transcript of the in camera hearing, that the District Attorney
III
Petitioners also contend that the subpoenas are so broadly drafted that they violate the Fourth Amendment’s prohibition against unreasonable searches and seizures. The Supreme Court has stated that the Fourth Amendment provides protection against a Grаnd Jury subpoena duces tecum "too sweeping in its terms to be regarded as reasonable” (Hale v Henkel,
The standard of reasonableness rather than probable cause is appropriate because of the substantial differences between a search warrant and a subpoena duces tecum. A search and seizure is conducted abruptly, without advance notice, often with force or the threat of force. A subpoena, in contrast, remains at all times under the control and supervision of a judicial officer and may be challenged before compliance through a motion to quash (see, id., at 394; United States v Doe [Schwartz], 457 F2d 895, 898, cert denied
Based on this standard, we conclude that the subpoenas are neither overly broad nor burdensome and that the information sought is relevant.
It is useful to compare this case with Hale v Henkel (supra), where the Supreme Court found the subpoena to be overly broad and unduly burdensome. In that case the court stressed the fact that if the subpoena were enforced as written it would "completely put a stop to the business of [the] company” (201 US, supra, at 77). Here, by contrast, the subpoenas only request that the Locals submit a copy of the membership lists. Nor is the subpoena subject to criticism on the grounds of vagueness or, using Fourth Amendment terminology, lack of particularity in the description of the documents sought. The Locals were told specifically what they were obligated to produce, the tasks required only a matter of minutes to accоmplish and it did not interfere with the Locals’ continued operation.
Petitioners contend further that the names, addresses and Social Security numbers of every member of all four Locals are not relevant. The District Attorney contends that to limit the subpoenas to one Local, to a portion of the membership of one or more Locals, or to certain jobsites would immediately signal the suspected parties and that it would not be adequate because he has no way of knowing which members, for example, witnessed bribes, the illegal violation of collective bargaining agreements or other corrupt activities. He agrees that the information subpoenaed is not necessary in all cases and that some areas of inquiry do not relate to all the Locals but he asserts that narrowing the demand to produce would clearly indicate the areas of investigation and potential charges against each Local and those members who are believed to have knowledge, information which could seriously impede the investigation. His claim is supported by the material revealed to the Trial Justice during the in camera hearing.
Relevancy, of course, cannot be reduced to a formula; only general guidelinеs can be restated. We have often noted the Grand Jury subpoenas are presumptively valid and can only be quashed by proving an affirmative act of impropriety or
Addressing briefly the points raised by the dissent, both the Locals and the Pеople extensively argued the applicability of the First Amendment claim in the moving and responding papers and in their briefs to Supreme Court. While the trial court did not issue a written decision when it denied petitioners’ motion, it had the applicable law presented to it and necessarily engaged in a balancing process before denying the motion to quash. Whether it did so or not is academic at this stage, however, because we have reviewed the record and balanced the competing interests and conclude its decision was correct. Insofar as the dissent contends that the union offered alternatives to compromise the matter, the alternatives were suggested for the first time in the Appellate Division. Finally, although the Assistant District Attorney conceded the obvious, that not all members of the Locals would be called to testify before the Grand Jury, he insisted on the need for all names because at this stage of the investigation it is impossible to determine which members had pertinent information and because it is important that all names be delivered so that the investigation will not be endangered.
IV
We have reviewed the Locals’ remaining contention that the Labor-Management Reporting and Disclosure Act of 1959 (see, 29 USC § 481) shields disclosure оf the membership lists to a Grand Jury and conclude that it is without merit.
Accordingly, the order of the Appellate Division should be affirmed.
Dissenting Opinion
(dissenting). I agree with the majority’s conclu
As a result of a New York County Grand Jury investigation into corruption in the carpentry and drywall industries, the District Attorney issued subpoenas duces tecum to four Locals of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Although the Union’s officials were the primary targets of the investigation, the subpoenas sought the entire membership lists of all four Locals, consisting of some 10,000 names, addresses, home telephone numbers and Social Security numbers. Contending that the broad disclosure requested by the District Attorney implicated the First Amendment rights of the membership, the Union sought to quash the subpoenas. Alternatively, the Union argued that the subpoenas were overbroad, and requested that the disclosure be limited to what was reasonably necessary to serve the legitimate needs of the investigation.
In issuing the subpoenas in an ex parte proceeding at which only the District Attorney’s office was represented, not one word was mentioned regarding the First Amendment rights of the Union membership. After the Union moved to quash the subpoenas on First Amendment grounds, the Supreme Court failed to indicate whether it had even considered the constitutional claim or balanced the conflicting rights of the government and the members of the Lоcals. Similarly, there is nothing in the record to indicate that the courts below carefully scrutinized the reasonableness of the District Attorney’s demands or considered the feasibility of less restrictive alternatives. Whether or not the Appellate Division considered the Locals’ constitutional claim is also unknown, since that court affirmed, without opinion.
What is known is that even the Assistant District Attorney admitted that not all of the names on the membership lists were necessary to the investigation. Nevertheless, the majority concludes that "the District Attorney’s continued posses
Although acknowledging the substantial First Amendment interest involved, the majority minimizes the significance of the arguments advanced by the Union in support of its position. The Locals do not merely contend that individuals may be deterred from joining the Union, and that members may be discouraged from engaging in Union activities. Rather, the Locals assert that forced disclosure of all 10,000 names, addresses, phone numbers and Social Security numbers of its members infringes on associational, and privacy rights by chilling the exercise of First Amendment rights of the rank- and-file. Thе Union points out that with its members’ Social Security numbers, the government now has access to the tax returns, financial and other personal information of each and every Union member. Fear of becoming visible may well cause some members to refrain from fully exercising their right to engage in the full range of Union activities, which include political as well as economic and social activities. With the entire membership’s home telephone numbers in his possession, the District Attorney may contact the rank-and-file at home any time he wishes. In sum, the Union’s position is that "the First Amendment protects one’s freedom of association, privacy and freedom to participate in a political life without unjustified governmental interference”. To further support its contention that disclosure here may adversely affect the Union, and thereby chill the exercise of constitutionally protected rights, the Locals point out the undisputed fact that newspapers have already reported on the investigation as a result of a news leak. These issues were explicitly raised below and again before this court in the Union’s brief, and, by implication, in the cases cited by the Locals.
A demand by the government that seeks to obtain constitutionally protected materials is subject to the most exacting scrutiny. "It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty’ assured by the Due Process Clause of the Fourteenth Amendment * * * Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny”
Nevertheless, the majority perceives no problem in requiring the Locals to turn over these membership lists and Social Security numbers because they believe that the Locals "have not demonstrated that organizational activity would be curtailed because of thе delivery of the lists.” (Majority opn, at 314.) Even if we were to agree with this premise, we would still be compelled to dissent because this approach is contrary to the well-established constitutional principles enunciated in a long line of Federal cases (see, e.g., Buckley v Valeo, supra; Pollard v Roberts,
The majority distinguishes the Waterfront case on the ground that it involved political speech. This implies that First Amendment rights were actually somehow capable of being prioritized into some dеscending order of importance. Federal law dictates otherwise. All fully protected First Amendment rights — whether involving association, privacy, speech, religion, or economics — are entitled to the identical protection and strict scrutiny that political speech enjoys (see, N. A. A. C. P. v Alabama, supra; Local 1814, Intl. Longshoremen’s Assn. v Waterfront Commn., supra). Further, the Locals do indeed argue that the free exercise of the rank-and-file’s political rights are being violated insofar as these rights are intimately bound up with participating in the political activities of the Locals.
More importantly, the initial inquiry is not on the specific First Amendment rights asserted. Rather, the court must inquire into whether the disclosure requested by the government "is substantially related to a compelling governmental
The majority further attempts to distinguish Waterfront on the ground that the requesting governmental body actually had access to the names and addresses of the longshoremen from another source, thereby minimizing the government’s need for the disclosure, while here, the information was not readily available. This argument, however, cuts both ways. Befоre the judiciary permits compelled disclosure of personal information that is otherwise difficult to obtain, it has an obligation to strictly scrutinize the reasonableness of such a request. But in any event, this was at most a minor factor in the Waterfront decision. Before considering the availability of the information from public sources, we are first obligated to scrutinize the District Attorney’s demands.
There is, however, a valid ground upon which to distinguish the instant case from Waterfront that mandates reversal. In Waterfront, the government sought some 450 members names, all of which had some direct relevance to the investigation. In this case, the government sought some 10,000 names and addresses, as well as home рhone numbers and Social Security numbers, even though the government itself admitted that not all the information was relevant to the investigation. Further, as the majority aptly points out, in Waterfront, the disclosure sought was limited. The criteria used to determine whether a member’s name had to be disclosed was predicated on whether the Union member signed a political contribution card after a specific date. In our case, however, the District Attorney demanded the name of every Union member, regardless of which Local they belonged to, and regardless of whether the member was a potential source of relevant information whо might shed some light on the investigation. In the instant case, there was absolutely no limiting criteria. Thus, every member whose involvement in the Union was politically motivated, as well as those members whose Union participation was economically or socially motivated, was demanded. In other words, the disclosure at issue here was far more intrusive than that presented in Waterfront.
Finally, the majority contends that "in this case * * * the District Attorney has established” during the in camera hearing "that a random selection of names would not adequately
Second, the Assistant District Attorney indicated to the issuing Magistrate that the primary target of the investigation was only one of the four Locals. Indeed, the District Attorney’s main justification for this sweeping disclosurе was that to limit the subpoenas would immediately signal the suspected parties and jeopardize the investigation. This excuse is insufficient to warrant the full disclosure of the entire membership lists of all four Locals, since there were viable alternatives that could have been employed that would satisfy the reasonable needs of the investigation without infringing upon the First Amendment rights of the membership to such an intrusive degree. For example, the lists of names unrelated to the investigation could have been held by a neutral third party, as suggested by the Locals, disclosure could have been limited to a percentage of the totаl Union population, as was done in the Waterfront case. However, apparently, neither the majority nor the courts below even considered such reasonable alternatives. Indeed, no alternatives were considered.
Had the required balancing been done, and the requested disclosure been subjected to the demanding constitutional scrutiny required, it is inevitable that the broad disclosure demanded would have been significantly limited.
Accordingly, I would reverse and remit for a proper hearing.
Chief Judge Wachtler and Judges Kaye and Hancock, Jr., concur with Judge Simons; Judge Titone dissents and votes to reverse in a separate opinion in which Judges Alexander and Bellacosa concur.
Order affirmed, with costs.
Notes
The majority points out that "the effect subpoenas have on the membership of a union and participation in its activities is quite different from the effect subpoenas may have on membership in a political group or participation in its activities. Because of the advantages of union membership and the need to discuss it for employment it is not generally concealed or denied.” However, we see a vast distinction between a union member voluntarily deciding to provide an employer with his Social Security number and union membership informatiоn, and the situation presented here, where