833 F.3d 166 (2nd Cir. 2016), 15-2249-cv, Tapper v. Hearn

Docket Nº:15-2249-cv
Citation:833 F.3d 166
Opinion Judge:Hall, Circuit Judge:
Party Name:Marlene Tapper; Yvette Velazquez Bennett; Vivianna Vazquez-Hernandez; Robert Perez; Fran Reiter; Sheila Andersen-Ricci; Martina Franca Associates LLC; Reiter Begun Associates, LLC; Denis Gittens; Oscar Perez; The Kings County Committee of The New York State Conservative Party; The New York State Conservative Party; and Martin Dilan, Plaintiffs-...
Attorney:JAMES BOPP, JR., Randy Elf and Anita Y. Milanovich (on the brief), The Bopp Law Firm, P.C., Terre Haute, IN, for Plaintiffs-Appellants. JANE L. GORDON, Richard Dearing (of counsel), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY, for Defendants-Appellees.
Judge Panel:Before: Walker, Calabresi, And Hall, Circuit Judges.
Case Date:August 10, 2016
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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833 F.3d 166 (2nd Cir. 2016)

Marlene Tapper; Yvette Velazquez Bennett; Vivianna Vazquez-Hernandez; Robert Perez; Fran Reiter; Sheila Andersen-Ricci; Martina Franca Associates LLC; Reiter Begun Associates, LLC; Denis Gittens; Oscar Perez; The Kings County Committee of The New York State Conservative Party; The New York State Conservative Party; and Martin Dilan, Plaintiffs-Appellants,

v.

ROSE Gill Hearn, in her official capacity as a New York City Campaign Finance Board Chair; Art Chang, Richard J. Davis, Courtney C. Hall, and Mark S. Piazza, in their official capacities as New York City Campaign Finance Board members; Mark Davies, in his official capacity as New York City Conflicts of Interest Board Executive Director; Richard Briffault, in his official capacity as New York City Conflicts of Interest Board Chair; Fernando Bohorquez, Jr., Anthony Crowell, Andrew Irving, and Erika Thomas-Yuille, in their official capacities as New York City Conflicts of Interest Board members; and Michael McSweeny, in his official capacity as New York City Clerk, Defendants-Appellees. *

No. 15-2249-cv

United States Court of Appeals, Second Circuit

August 10, 2016

Argued: April 25, 2016

Page 167

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

Page 168

JAMES BOPP, JR., Randy Elf and Anita Y. Milanovich (on the brief), The Bopp Law Firm, P.C., Terre Haute, IN, for Plaintiffs-Appellants.

JANE L. GORDON, Richard Dearing (of counsel), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY, for Defendants-Appellees.

Before: Walker, Calabresi, And Hall, Circuit Judges.

OPINION

Hall, Circuit Judge:

Plaintiffs appeal from an order of the United States District Court for the Southern District of New York (Swain, J. ) denying their October 2014 motion under Fed.R.Civ.P. 60(b)(5) and (6) for reconsideration of the district court’s February 2009 summary judgment decision, which denied plaintiffs a preliminary and permanent injunction, granted defendants’ summary judgment motion, and dismissed plaintiffs’ claims challenging the constitutionality of certain contribution restrictions within New York City’s campaign finance laws. 1 In their February 27, 2008 amended complaint, plaintiffs— a group of New York City voters, aspiring candidates, lobbyists, and affiliated individuals and entities— claimed, as relevant here, that the laws’ restrictions on contributions unduly burdened their protected political speech in violation of the First Amendment and denied them equal protection of the laws in violation of the Fourteenth Amendment. Plaintiffs moved for a preliminary injunction against defendants— members of New York City’s Campaign Finance Board and other City representatives (collectively “ the City” ). In its February 2009 summary judgment decision the district court denied plaintiffs’ request for injunctive relief and dismissed their claims challenging the constitutionality of the contribution restrictions. Ognibene v. Parkes (Ognibene I ), 599 F.Supp.2d 434 (S.D.N.Y. 2009). This Court affirmed that decision. Ognibene v. Parkes (Ognibene II ), 671 F.3d 174 (2d Cir. 2011), cert. denied, __ U.S. __, 133 S.Ct. 28, 183 L.Ed.2d 676 (2012). Several years later, the Supreme Court issued its decision in McCutcheon v. FEC, __ U.S. __, 134 S.Ct. 1434, 188 L.Ed.2d 468 (2014). Plaintiffs contend that McCutcheon has altered in their favor the jurisprudence governing campaign finance. Using McCutcheon as their sword, plaintiffs now seek to reattack the district court’s February 2009 order that denied them injunctive relief and that upheld as constitutional the challenged provisions of the City’s laws. For the following reasons we affirm the district court’s decision to deny plaintiffs’ motion for reconsideration.

BACKGROUND

Subject of this challenge are three provisions of New York City’s Administrative Code commonly known as the “ pay to play” rules. These provisions (1) lower the generally applicable base campaign contribution limits for people engaged in business dealings with the City, see N.Y.C. Admin. Code §§ 3-703(1-a), 3-719(2)(b) (the “ doing business contribution limits” ); (2) deny matching funds, which are otherwise generally available, for any contribution made by people engaged in business dealings with the City and certain people associated with lobbyists, see N.Y.C. Admin. Code §§ 3-702(3), 3-703(1-a) (the “ non-matching funds provision” ); and (3)

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extend the existing prohibition on corporate contributions to partnerships, LLCs, and LLPs, see N.Y.C. Admin. Code §§ 3-703(1)(l), 3-719(2)(b) (the “ entity contribution ban” ).

In the course of deciding Ognibene I, the district court consolidated plaintiffs’ motion for a preliminary injunction with the merits of their claim for permanent injunctive relief. Pursuant to the Supreme Court’s...

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