Citizens Union of N.Y. v. Attorney Gen. of N.Y.

Citation269 F.Supp.3d 124
Decision Date01 September 2017
Docket Number16–cv–09592 (RMB) (KHP)
Parties CITIZENS UNION OF the CITY OF NEW YORK et al., Plaintiffs, v. The ATTORNEY GENERAL OF the State of NEW YORK, Defendant.
CourtU.S. District Court — Southern District of New York

Akiva Shapiro, Gabriel Kalman Gillett, Randy M. Mastro, Gibson, Dunn & Crutcher, LLP, New York, NY, Alan Joel Rothstein, Cortlandt Manor, NY, for Plaintiffs.

Andrew Stuart Amer, Attorney General of the State of New York, New York, NY, for Defendant.

OPINION AND ORDER

KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE

Plaintiffs Citizens Union of the City of New York and Citizens Union Foundation, Inc. of the City of New York (collectively, "Plaintiffs") commenced this action to challenge the constitutionality of New York Executive Law Sections 172–e and 172–f (the "Disclosure Provisions").

Currently pending before this Court is a dispute over a subpoena Plaintiffs served upon the Governor of the State of New York (the "Governor") insofar as it seeks non-public documents concerning the government's interest in enacting the Disclosure Provisions and the extent to which the Disclosure Provisions are tailored to address that interest. The Governor moved to quash this subpoena on the grounds that the non-public documents sought are not relevant and also are protected from disclosure under the legislative privilege, deliberative process privilege and/or attorney-client privilege. For the reasons that follow, the Governor's motion to quash is GRANTED .

BACKGROUND

On June 8, 2016, the Governor announced anticipated ethics, lobbying, and campaign-finance reform legislation intended to "curb the power of independent expenditure campaigns unleashed by the 2010 Supreme Court case Citizens United vs. Federal Election Commission ." (Doc. No. 41 ¶ 38.) In a speech announcing the legislation, the Governor stated:

[T]he power to influence and the power to be heard in elections was tilted beyond all recognition when the Supreme Court upheld Citizens United . This decision ignited the equivalent of a campaign nuclear arms race and created a shadow industry in New York—maligning the integrity of the electoral process and drowning out the voice of the people .... As Governor of New York, I am taking action to curb the powers of independent entities and ensure these committees cannot circumvent the law and cheat the system. We are also strengthening disclosure requirements so we know exactly where and from whom this dark money flows. Our message is clear: In New York, democracy is not for sale.

(Doc. No. 41 ¶ 39.)

On June 17, 2016, at the end of the Legislative Session, two bills that addressed ethics, lobbying, and campaign-finance reform—A10742 and S8160—were introduced into the New York State Assembly and New York State Senate. (Doc. No. 41 ¶ 41.) The two bills were accompanied by a "Message of Necessity" from the Governor,1 which states, inter alia : "[t]he bill would ... require disclosures of political relationships and behaviors widely recognized to be influential but which operate in the shadows. As passage of this bill would enact the strongest reforms in the country to combat the outsized influence of dark money in politics, it is imperative that New York pass this bill." (Doc. No. 41 ¶ 43.) The Senate and Assembly voted upon and passed the two bills on the same day.2 (Doc. No. 41 ¶¶ 43, 47.)

On August 24, 2016, the Governor signed the bills into law as Chapter 286. (Doc. No. 41 ¶ 5.) As described by Plaintiffs, Chapter 286 "contained many provisions aimed at much-needed ethics and campaign-finance reform," the majority of which are not at issue in this litigation. (Doc. No. 68 p. 1.) However, Chapter 286 also amended the New York Executive Law by adding the Disclosure Provisions, Sections 172–e and 172–f, which are the subject of Plaintiffs' constitutional challenges. (Doc. No. 41 ¶ 5.)

Section 172–e requires a non-profit organization ("501(c)(3) organization") that makes an in-kind donation in excess of $2,500 to a non-profit lobbying organization ("501(c)(4) organization") to disclose the identity of any donor who makes a donation in excess of $2,500 to the 501(c)(3) organization.3 N.Y. Exec. L. §§ 172–e(2)(a), 172–e(1). Section 172–f requires a 501(c)(4) organization that spends more than $10,000 on published communications that "refer[ ] to and advocate[ ] for or against a clearly identified elected official or the position of any elected official or administrative or legislative body relating to the outcome of any vote or substance of any legislation, potential legislation, pending legislation, rule, regulation, hearing, or decision by any legislative, executive or administrative body" to disclose "the name and address of any individual, corporation, association, or group that made a donation of [$1,000] or more" to the 501(c)(4) organization. Id. at §§ 172–f(2)(a), 172–f(1)(a)-(b). The Disclosure Provisions further mandate that the donor disclosure reports will made publicly available, absent a determination by the New York Attorney General that disclosure may result in harm to the source of the donation. Id. at §§ 172–e(3), 172–f(3).4 Section 172–e took effect on November 22, 2016, and Section 172–f took effect on September 23, 2016. (Doc. No. 41 ¶ 5.)

On December 12, 2016, Plaintiffs filed a Complaint in the Southern District of New York against the Governor, the Attorney General of the State of New York, and various other state officials,5 seeking declaratory and injunctive relief from the implementation and enforcement of the Disclosure Provisions. (Doc. No. 1.) The Complaint alleged that the Disclosure Provisions are facially overbroad under the First Amendment. Plaintiffs subsequently filed an Amended Complaint, which added claims that the Disclosure Provisions are unconstitutional under the First Amendment as applied to Plaintiffs and invalid under the New York State Constitution. (Doc. No. 41.) In the Amended Complaint, Plaintiffs also assert that the Governor signed the legislation "to retaliate against good government groups like Plaintiffs for criticizing his ethics reform efforts."6 (Doc. No. 41 ¶¶ 4, 32–34, 87, 97, 120, 131.)

On December 30, 2016, Plaintiffs wrote to the Court advising that they sought leave to file a motion for a preliminary injunction, preceded by "targeted discovery on the existence and scope of the government's interest in obtaining donor disclosures from covered organizations, and the interest's relationship to the amount of burdened speech, both of which are vital to analyzing the facial overbreadth of the statutes." (Doc. No. 28 pp. 1, 5–6 & n.2.) Plaintiffs further explained that the necessary discovery included "basic documents like the bill jacket, message of necessity, and legislative history, and any other documents from the Governor's office concerning the rationale for the statute." (Doc. No. 28 p. 1 n.2.) On January 11, 2017, the Honorable Richard M. Berman ruled that "limited expedited discovery" would be permitted prior to Plaintiffs' application for a preliminary injunction. (Doc. No. 34 p. 7.)

On January 24, 2017, Plaintiffs served Requests for the Production of Documents (the "Requests") on the Governor seeking documents regarding the nature and extent of the government interest in the Disclosure Provisions, the scope of the Disclosure Provisions, the application of the Disclosure Provisions, and the Governor's Message of Necessity, among other documents and information. (Doc. No. 38–1.) Plaintiffs also served the New York State Senate (the "Senate") and the New York State Assembly (the "Assembly") with subpoenas seeking similar types of information on the same day. (See Doc. No. 63–1.) The Governor, Senate, and Assembly agreed to produce copies of publicly available documents in their possession regarding the Disclosure Provisions, but objected to Plaintiffs' demands for the production of non-public documents. Specifically, the Governor objected to the Requests on relevance grounds and insofar as they sought production of privileged documents and communications.

The Governor subsequently requested a conference to address his anticipated motion for a protective order quashing the Requests. (Doc. No. 38.) On March 3, 2017, this Court held a pre-motion conference and granted the Governor leave to proceed with filing a motion for a protective order. (Doc. Nos. 44–45, 50.)

Following the March 3, 2017 conference, the Senate and Assembly (collectively, the "Intervenors") sought leave to intervene in this action for the limited purposes of participating in the briefing for the Governor's motion for a protective order, explaining that their privileges would also be implicated by any ruling regarding the Governor's claims of privilege. (Doc. Nos. 46, 49, 53–54.) Judge Berman granted the Intervenors' applications on March 10, 2017. (Doc. No. 55.)

On March 17, 2017, the Governor filed the instant motion for a protective order quashing Plaintiffs' Requests. (Doc. Nos. 64–65.) The Intervenors filed memoranda of law in support of the issuance of a protective order on the same day. (Doc. Nos. 61–63.) The Governor and Intervenors all argue in their briefs that the discovery Plaintiffs seek is not relevant and, further, is protected from disclosure under the legislative and deliberative process privileges, as well as attorney-client privilege in some instances. Plaintiffs oppose the Governor's motion. (See Doc. No. 68.)

On April 25, 2017, this Court held oral argument on the pending motion for a protective order. During the conference, the Court ordered Plaintiffs to serve revised and narrowed discovery requests on the Governor by May 5, 2017. The Court also directed the parties to provide supplemental briefing regarding two issues raised during oral argument: the relevance of the discovery sought and the potential waiver of privilege.7 The Court further ordered the Governor to serve a redacted privilege log upon Plaintiffs and to provide an unredacted version of the...

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