Golden v. Clark

• Citation: 563 N.Y.S.2d 1,76 N.Y.2d 618,564 N.E.2d 611
• Parties: , 564 N.E.2d 611, 59 USLW 2304 Howard GOLDEN et al., Respondents, v. Merrell E. CLARK, Jr., as Chair of the Conflicts of Interest Board of the City of New York, et al., Appellants.
• Decision Date: 23 October 1990
• Court: New York Court of Appeals

Page 1

563 N.Y.S.2d 1

76 N.Y.2d 618, 564 N.E.2d 611, 59 USLW 2304

Howard GOLDEN et al., Respondents, v. Merrell E. CLARK, Jr., as Chair of the Conflicts of Interest Board of the City of New York, et al., Appellants.

Court of Appeals of New York.

Oct. 23, 1990.

Victor A. Kovner, Corp. Counsel (Frederick P. Schaffer and Grace Goodman, New York City, of counsel), for appellants.

Henry Mark Holzer and Kenneth K. Fisher, Brooklyn, for Howard Golden et al., respondents.

Robert Allan Muir, Jr., New York City, for Lilly B. Bachmann et al., respondents.

Robert B. Fiske, Jr., New York City, for Citizens Union of the City of New York et al., amici curiae.

OPINION OF THE COURT

SIMONS, Judge.

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 F.2d 384, affd. 489 U.S. 688, 109 S.Ct. 1433, 103 L.Ed.2d 717). 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 (N.Y.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

II

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 N.Y.2d 563, 388 N.Y.S.2d 876, 357 N.E.2d 347; Alevy v. Downstate Med. Center, 39 N.Y.2d 326, 331-332, 384 N.Y.S.2d 82, 348 N.E.2d 537). 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 N.Y.2d 242, 250, 485 N.Y.S.2d 724, 475 N.E.2d 95; Matter of Rosenstock v. Scaringe, 40 N.Y.2d 563, 388 N.Y.S.2d 876, 357 N.E.2d 347, 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 U.S. 134, 142-144, 92 S.Ct. 849, 855-856, 31 L.Ed.2d 92). 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 N.Y.2d 344, 360, n. 6, 492 N.Y.S.2d 522, 482 N.E.2d 1; Matter of Elser v. Walters, 56 N.Y.2d 306, 313-314, 452 N.Y.S.2d 333, 437 N.E.2d 1090).

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 U.S. 957, 964, 102 S.Ct. 2836, 2844, 73 L.Ed.2d 508; see generally, Tribe, American Constitutional Law § 13-19 [2d ed. 1988]. The two types are illustrated by Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 supra and Illinois Elections Bd. v. Socialist Workers Party, 440 U.S. 173, 99 S.Ct. 983, 59 L.Ed.2d 230.

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, 405 U.S. at 143-144, 92 S.Ct. at 856.) Inasmuch as the statute had a direct and appreciable impact on the right to vote, the court applied strict scrutiny and, 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 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702).

In Illinois Elections Bd. v. Socialist Workers Party, 440 U.S. 173, 99 S.Ct. 983, 59 L.Ed.2d 230 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 U.S. 767, 780, 94 S.Ct. 1296, 1305-06, 39 L.Ed.2d 744).

By contrast, in Clements v. Fashing, 457 U.S. 957, 102 S.Ct. 2836, 73 L.Ed.2d 508, 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, 102 S.Ct. at 2843-44 [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...