Grand Jury Subpoenas for Locals 17, 135, 257 and 608 of the United Broth. of Carpenters and Joiners of America, AFL-CIO, Matter of

• Decision Date: 06 July 1988
• Docket Number: AFL-CI,A
• Citation: 72 N.Y.2d 307,532 N.Y.S.2d 722,528 N.E.2d 1195
• Parties: , 528 N.E.2d 1195, 129 L.R.R.M. (BNA) 3047, 57 USLW 2047 In the Matter of GRAND JURY SUBPOENAS FOR LOCALS 17, 135, 257 AND 608 OF the UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA,ppellants. The People of the State of New York, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 722

532 N.Y.S.2d 722

72 N.Y.2d 307, 528 N.E.2d 1195, 129

L.R.R.M. (BNA) 3047,

57 USLW 2047

In the Matter of GRAND JURY SUBPOENAS FOR LOCALS 17, 135 257 AND 608 OF the UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA AFL-CIO, Appellants The People of the State of New York, Respondent.

Court of Appeals of New York.

July 6, 1988.

Certiorari Denied Nov. 28, 1988.

See 109 S.Ct. 492.

William J. Dealy, New York City, for appellants.

Robert M. Morgenthau, Dist. Atty. (Robert A. Mass, Mary C. Farrington and Mark Dwyer, New York City, of counsel), for respondent.

OPINION OF THE COURT

SIMONS, Judge.

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 Social Security numbers, and the possibility of limiting the number of names produced. After considering the District Attorney's arguments, the court denied the motion, but limited the subpoena to the extent of requiring that the lists remain under the direction and control of the principal Assistant District Attorney assigned to the investigation, ordering him not to duplicate them and requiring that he return the lists to the Locals upon completion of the Grand Jury's investigation.

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, 130 A.D.2d 987, 515 N.Y.S.2d 364, 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, 50 N.Y.2d 707, 713-714, 431 N.Y.S.2d 400, 409 N.E.2d 876; People ex rel. Geer v. Common Council, 82 N.Y. 575, 576). Ordinarily, if a party has surrendered subpoenaed material, the legal injury has occurred and the courts cannot provide an effective remedy. That being so, the appellate court must dismiss the appeal unless it falls within the well-recognized exception where courts may exercise their extraordinary discretion to entertain the appeal notwithstanding mootness (Matter of Roadway Express v. Commissioner of N.Y. State Dept. of Labor, 66 N.Y.2d 742, 744, 497 N.Y.S.2d 358, 488 N.E.2d 104). This case does not fall within the traditional exception ( see, e.g., Matter of Knight-Ridder Broadcasting v. Greenberg, 70 N.Y.2d 151, 154, n. 2, 518 N.Y.S.2d 595, 511 N.E.2d 1116; Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714-715, 431 N.Y.S.2d 400, 409 N.E.2d 876, supra; Matter of Jones v. Berman, 37 N.Y.2d 42, 57, 371 N.Y.S.2d 422, 332 N.E.2d 303). Although the First Amendment question posed is substantial, and novel in this court, it is not the type which will typically evade review because a stay can be obtained to preserve the issue for appellate review before the material is surrendered.

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, 58 N.Y.2d 436, 443, 461 N.Y.S.2d 773, 448 N.E.2d 440; Gilpin v. Mutual Life Ins. Co., 299 N.Y. 253, 261-262, 86 N.E.2d 737; see, Cohen and Karger, Powers of the New York Court of Appeals § 98, at 417 [rev. ed.] ). In this case, the rights of the parties remain undetermined because the membership lists which, pursuant to Supreme Court's order, cannot be copied, remain under the control of the Assistant District Attorney and continue to be used by him in the investigation ( cf., Matter of Roadway Express v. Commissioner of N.Y. State Dept. of Labor, 66 N.Y.2d 742, 497 N.Y.S.2d 358, 488 N.E.2d 104, supra [no argument that continued possession of the subpoenaed material constituted a continuing injury] ). We, therefore, turn to the merits.

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 being 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., 459 U.S. 87, 91-92, 103 S.Ct. 416, 419-420, 74 L.Ed.2d 250; Buckley v. Valeo, 424 U.S. 1, 64, 96 S.Ct. 612, 656, 46 L.Ed.2d 659; see also, Communist Party v. Control Bd., 367 U.S. 1, 92-103, 81 S.Ct. 1357, 1408-1414, 6 L.Ed.2d 625). Unquestionably, the State has a compelling interest in preventing and fighting corruption in the construction industry and the establishment of a specialized Grand Jury is a legitimate means of doing so. Although petitioners dispute it, the membership lists have a substantial relation to the investigation because they will enable the Grand Jury to locate and identify union members, the potential witnesses for Grand Jury testimony, without unduly burdening or delaying the search and without having to proceed through the traditional channels of first notifying the union leaders and exposing witnesses to possible intimidation.

The cases petitioners cite in support of their claim are inapposite. In N.A.A.C.P. v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488, the State of Alabama sought access to the membership rolls of the NAACP ostensibly to determine whether the Association was conducting an intrastate business in violation of the State foreign corporation registration statute. The court recognized in that case that petitioners had been subjected to prior harassment and reprisal from the government ( id., at 462-463, 78 S.Ct. at 1171-1172) and that the State did not actually need the membership lists to determine whether the Association was conducting a business ( id., at 464-465, 78 S.Ct. at 1172-1173). In Polla v. Roberts, 283 F.Supp. 248 [three-Judge court], affd. Per Curiam without opn. 393 U.S. 14, 89 S.Ct. 47, 21 L.Ed.2d 14, the State of Arkansas sought to obtain a list of the names of all contributors to the Republican Party to determine whether votes were being bought. In quashing the subpoena, the court held that the State had made no showing that the identities of Republican Party contributors was even "reasonably relevant to defendant's investigation of alleged vote buying" (id., at 257). The court also noted that although there had been no showing that any individuals had been subjected to reprisals on account of contributions to the party, "it would be naive not to recognize that the disclosure of identities of contributors * * * would subject at least some of them to potential economic or political reprisals of greater or lesser severity" (id., at 258). In this case, however, the Grand Jury has a legitimate and compelling need for the lists to conduct its investigation.

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., 2nd Cir., 667 F.2d 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 names the Commission sought. The parties...