Evans v. Carey

• Decision Date: 02 July 1976
• Citation: 53 A.D.2d 109,385 N.Y.S.2d 965
• Parties: James T. EVANS, M.D., et al., Respondents, v. Hugh L. CAREY, Governor, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 965

385 N.Y.S.2d 965

53 A.D.2d 109

James T. EVANS, M.D., et al., Respondents, v. Hugh L. CAREY, Governor, et al., Appellants.

Supreme Court, Appellate Division, Fourth Department.

July 2, 1976.

Ruth Kessler Toch, Sol. Gen., Louis J. Lefkowitz, Atty. Gen., Albany, for appellants (Michael F. Colligan, Albany, of counsel).

Kavinoky, Cook, Hepp, Sandler, Gardner & Wisbaum, Buffalo, for respondents (Charles R. Sandler, Buffalo, of counsel).

Before MARSH, P.J., and MOULE, SIMONS, GOLDMAN and WITMER, JJ.

MARSH, Presiding Justice:

Defendants appeal from a judgment and amended judgment of Supreme Court, Erie County, which granted injunctive relief and declared Executive Order No. 10 (9 N.Y.C.R.R. 3.10) ¹ unconstitutional as construed and applied and denied defendants' cross motion for summary judgment.

Plaintiffs, the first three named being medical doctors employed by the Department of Health, are among 700 employees of the State who were asked to complete and file financial disclosure statements pursuant to Executive Order No. 10.

In order to narrow the focus of the constitutional inquiry required, the relevant point of departure is the legitimacy of governmental limitations upon constitutional rights when the sanctions concern the government's own employees. The Supreme Court of the United States has sanctioned the imposition of special restraints over the political activity of Federal employees which, if applied to the body politic generally, would cripple the democratic process (United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754). As far back as 1871, with the creation of the Federal Civil Service Commission, certain limited restrictions were placed on the political activity of employees of the Executive Branch. Pursuant to an Executive Order of President Theodore Roosevelt in 1907, employees in the Classifi Civil Service were forbidden to take part in political campaigns or political management. By virtue of the Hatch Act, the restriction of the 1907 Executive Order was extended to the entire Federal service, excluding the President, Vice President and specified officials in policy making positions (CSC v. Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796). The Supreme Court in Letter Carriers determined that substantial curtailment of otherwise constitutionally protected behavior with respect to the political process was justified by the need of the Federal Government to be free of the corrupting and debilitating influences of rampant partisan activity on behalf of its own employees. The abolition of the spoils system and the creation of a competent, efficient and corruption free career service necessitated the creation of a non-partisan image and attitude among Federal employees. These legitimate and compelling interests of government were sufficient to justify the curtailment of the constitutionally protected political rights of the employees. The employees were still privileged, however, to express their views on candidates and issues. The court concluded that the Hatch Act and the 1907 regulations were narrowly drawn in order to achieve the legitimate purpose of curtailing partisan political activity and did not unduly bring within its sanctions areas of expression and association not substantially connected to the properly proscribed partisan political activity.

In Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830, the Supreme Court considered the questions raised by the Hatch Act and the Letter Carriers case in the context of a State proscription against partisan political activity concerning State employees. The attack in Broadrick v. Oklahoma (supra) concerned the extent of the prohibition of partisan political activity which in its outer reaches could be deemed to apply in certain instances to protected conduct the curtailment of which would be unjustified by the legitimate and compelling State need to curtail partisan activity of governmental employees. The Supreme Court refused to treat the speculations of the contesting employees as a proper constitutional challenge to the face of the statute. It ruled the statute valid upon its face and put off to another day claims that certain types of conduct which could conceivably come within its prohibitory language might be deemed constitutionally protected. The conduct engaged in by the current plaintiffs was clearly within the valid purview of the statute and thus properly prohibited.

Analysis of the nature of the constitutional interest upon which Executive Order No. 10 impinges has not been clearly set forth by the plaintiffs. It is true that Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 speaks in terms of a right of privacy emanating from the specific language of several amendments; the First Amendment dealing with freedom of speech, freedom of the press, freedom of religion; the Fourth Protecting from unreasonable searches of the person, home and private effects; the Fifth against compulsory incrimination and the due process clauses of the Fifth and Fourteenth Amendments.

The right of a person to be free from unreasonable intrusion of governmental power partakes of the very essence of constitutional government and, of necessity, permeates all the specific guarantees of the Bill of Rights. Justice Douglas writes in general terms with respect to a right of privacy. However, his specific analysis is bottomed upon references to the right of association and freedom of speech with respect to the dissemination of information concerning contraceptives. The conclusion of the court is that the State's legitimate right to regulate some aspects of a citizen's sexual life does not permit the State to assert jurisdiction over all aspects. Irrespective of the nature of the compelling State interest, the court in Griswold concluded that the right to disseminate information concerning contraceptives found justification under the First Amendment's freedom of speech, assembly and association. The right to use contraceptives in the privacy of one's home and in the sanctity of the marriage relationship concerned aspects of privacy touching upon the concerns of the Fourth and Fifth Amendments and also apparently of the Ninth Amendment concerning certain rights retained by the people. The question was posed by Justice Douglas whether a proper search could be made of the marital abode to secure evidence of the illegal use of contraceptives. The majority found the idea constitutionally repulsive.

On occasion the public's right to know embodied in the First Amendment's guarantee of freedom of speech and press conflict with the individual's desire for privacy. In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328, the Supreme Court ruled unconstitutional a Georgia law that prohibited the publication of the name of a rape victim by the news media notwithstanding the name had been made public through official court records and proceedings in open court. In concluding that the State could not prohibit the dissemination by publication of the name of the rape victim, the Supreme Court stated:

'* * * (I)t is appropriate to focus on the narrower interface between press and privacy that this case presents, namely, whether the State may impose sanctions on the accurate publication of the name of a rape victim obtained from public records--more specifically, from judicial records which are maintained in connection with a public prosecution and which themselves are open to public inspection. We are convinced that the State may not do so.' (Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491, 95 S.Ct. 1029, 1044, 43 L.Ed.2d 328, 347).

The Cox case and several cases that followed thereafter exhibit a tendency to look more narrowly at the specific complaint and the immediate impact of the governmental intrusion (California Bankers Assn. v. Schultz, 416 U.S. 21, 94 S.Ct. 1494, 39 L.Ed.2d 812; United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71; Fisher v. United States and United States v. Kasmir, et al., 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39; Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659). The disclosure of political contributions by candidates and committees has long had constitutional sanction although First Amendment freedom of speech and association were involved (see Buckley v. Valeo, supra, at p. 60 et seq., 96 S.Ct. 612). In California Bankers Association v. Schultz (supra) the Supreme Court found no constitutional question posed where the Federal Government required banks to maintain records of checking accounts and to report certain domestic and foreign financial transactions. It ruled constitutional the requirements that banks maintain records on microfilm of checking account transactions in excess of $100. This is a function which the banks usually performed without legal compulsion and the banks could not assert either Fourth or Fifth Amendment rights concerning unreasonable searches or compulsory incrimination. No chilling impact upon constitutionally protected areas was made imminent by the requirement that the banks keep such records; hence, the challenge to the face of the statute was denied. The requirements of reporting transactions dealing with the transfer of monetary instruments into or out of the United States in the amount of $5,000 or more posed no problem with respect to the bank's requirement to report. The same analysis was applied to a requirement that all cash transactions in the amount of $10,000 or more be reported to the Internal Revenue Service. No constitutional violation with respect to the reporting requirements of the foreign or domestic transactions was found. The government had a very legitimate concern with large denomination cash transactions outside the normal ambit of a person's business and, since the transaction was openly disclosed to the bank and its employees, no reason prohibited the...