Lerman and D'Angelo v. Bd. Elections City of NY

• Decision Date: 01 August 1999
• Docket Number: Docket No. 99-9015
• Citation: 232 F.3d 135
• Parties: (2nd Cir. 2000) ANITA LERMAN and ANGELO D'ANGELO, Plaintiffs-Appellants, v. BOARD OF ELECTIONS IN THE CITY OF NEW YORK; BOARD OF ELECTIONS OF THE STATE OF NEW YORK; and GEORGE E. PATAKI, GOVERNOR, Defendants-Appellees
• Court: U.S. Court of Appeals — Second Circuit

Page 135

232 F.3d 135 (2nd Cir. 2000)

ANITA LERMAN and ANGELO D'ANGELO, Plaintiffs-Appellants, v. BOARD OF ELECTIONS IN THE CITY OF NEW YORK; BOARD OF ELECTIONS OF THE STATE OF NEW YORK; and GEORGE E. PATAKI, GOVERNOR, Defendants-Appellees.

Docket No. 99-9015

August Term, 1999

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: March 24, 2000

Decided: November 09, 2000

Appeal from a judgment of the United States District Court for the Eastern District of New York (Frederic Block, Judge), dismissing the plaintiffs' pro se complaint for failure to state a claim. The District Court upheld the requirement under section 6-132(2) of the New York Election Law that witnesses to ballot access "designating petitions" be residents of the political subdivision in which the office is to be voted. We reverse the District Court's judgment, holding that on its face, the witness residence requirement in section 6-132 of the New York Election Law significantly burdens interactive political speech and political association without advancing any legitimate state interest and, therefore, violates the First Amendment.

Judgment reversed and remanded with instructions.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] NANCY NORTHUP, Brennan Center for Justice (Gillian E. Metzger on the brief), New York, NY, for Plaintiffs-Appellants.

TAHIRIH M. SADRIEH, Office of the Corporation Counsel of the City of New York (Michael D. Hess, Corporation Counsel, Edward F. X. Hart on the brief), New York, NY, for Defendant-Appellee Board of Elections in the City of New York.

PATRICIA L. MURRAY, Deputy Counsel, Board of Elections of the State of New York, Albany, NY, for Defendant-Appellee Board of Elections of the State of New York.

NANCY A. SPIEGEL, Assistant Solicitor General, State of New York (Eliot Spitzer, Attorney General, Peter H. Schiff, Senior Counsel, Robert M. Goldfarb, Assistant Solicitor General on the brief), Albany, NY, for Defendant-Appellee Governor George E. Pataki.

Before: FEINBERG, JACOBS, and STRAUB, Circuit Judges.

STRAUB, Circuit Judge:

The late former Speaker of the United States House of Representatives, Thomas P. "Tip" O'Neill, was fond of saying that "all politics is local." TIP O'NEILL, ALL POLITICS IS LOCAL (1994). Through its requirement that witnesses to ballot access "designating petitions" be "resident[s] of the political subdivision in which the office or position is to be voted for," N.Y. ELEC. L. § 6-132(2) (McKinney 1998), the State of New York has attempted to elevate this political adage into an affirmative command. The Constitution, however, protects certain forms of political activity from government interference even if they transcend local political boundaries. While the state does have legitimate interests that justify regulating the electoral process-especially when it seeks to protect the integrity of that process-it cannot mandate that all political activity be "local" without demonstrating the required fit between its chosen means of regulation and those legitimate ends.

We conclude that the section 6-132(2) witness residence requirement severely burdens interactive political speech and association rights protected by the First Amendment (as incorporated by the Fourteenth Amendment) without advancing any legitimate or important state interest. Accordingly, we hold this particular statutory requirement unconstitutional on its face.

BACKGROUND

John Sollazo, a registered member of the Independence Party of New York, sought to compete in the primary election held September 14, 1999, in order to gain the nomination of the Independence Party for the New York City Council seat representing the 50th Council District in Staten Island. In order for a City Council candidate's name to appear on the primary election ballot, New York law requires that candidate to file a "designating petition" containing valid signatures from at least five percent of the registered party members within the district from which the candidate seeks election.¹ See N.Y. ELEC. L. §§ 6-118, 6-136(2) (McKinney 1998). In Sollazo's case, therefore, it was necessary for him to obtain 38 valid petition signatures, representing five percent of the 760 registered Independence Party members in the 50th District. Plaintiff Anita Lerman, a resident of the 49th Council District, served as a witness to the signatures on Sollazo's petition, witnessing a total of 58 signatures including those of Plaintiffs Angelo D'Angelo and Pio D'Agostino,² both of whom are residents of the 50th District. Lerman, however, lives outside the 50th District. Accordingly, defendant Board of Elections in the City of New York ("NYC Board") ruled, on August 3, 1999, that these 58 signatures were invalid, since New York law requires that designating petition signatures be witnessed by either a notary public, a commissioner of deeds, or an individual who not only is "duly qualified" to vote in New York and an "enrolled voter of the same political party" as the petition signers, but also is a "resident of the political subdivision in which the office or position is to be voted for." N.Y. ELEC. L. § 6-132(2) (3) (McKinney 1998). Lerman is neither a notary public nor a commissioner of deeds.

The plaintiffs filed a complaint pro se against the NYC Board, the New York State Board of Elections ("NYS Board"), and Governor George Pataki in August 1999, seeking declaratory and injunctive relief on the grounds that the witness residence requirement in section 6-132(2) violates the First and Fourteenth Amendments on its face by permitting only district residents to be eligible to witness signatures on the candidate's designating petition. The NYC Board moved for dismissal pursuant to Fed. R. Civ. P. 12(b)(6), and after oral argument on August 31, 1999, the District Court (Frederic Block, Judge) delivered an opinion from the bench dismissing Plaintiffs' complaint in its entirety. Judgment was entered on September 3, 1999. Plaintiffs moved this Court for an expedited appeal on the grounds that the primary election was to be held on September 14, 1999; that motion was denied. The primary election took place as scheduled without Sollazo's name on the ballot.

DISCUSSION

We review the District Court's dismissal of the plaintiffs' complaint de novo. See Posr v. Court Officer Shield No. 207, 180 F.3d 409 (2d Cir. 1999). Since most pro se plaintiffs lack familiarity with the formalities of pleading requirements, we must construe pro se complaints liberally, applying a more flexible standard to evaluate their sufficiency than we would when reviewing a complaint submitted by counsel.³ See, e.g., Hughes v. Rowe, 449 U.S. 5, 9 10 (1980) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 21 (1972) (per curiam). In order to justify the dismissal of the plaintiffs' pro se complaint, it must be "'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Haines, 404 U.S. at 521 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

I. Preclusive Effect of Molinari v. Powers

In another, widely noted New York ballot access case that was litigated in the Eastern District of New York after briefing in this appeal had been completed, but before oral argument, the NYS and NYC Boards entered into a stipulation providing that several provisions of the New York Election Law "impose[d] an undue burden on access to the ballot in connection with the 2000 New York State Republican Presidential Primary." Molinari v. Powers, No. 99 Civ. 8447, Stipulation at 2 (E.D.N.Y. Feb. 4, 2000). The parties in that case also agreed to waive their rights to appeal from any order entered by the district court based on that stipulation, see id., and upon acceptance by the district court, the stipulation served as the predicate for that court's order of preliminary injunctive relief. See Molinari v. Powers, 82 F. Supp. 2d 57, 68 69 (E.D.N.Y. 2000) (Korman, C.J.). The district court in Molinari accepted the parties' stipulation "only after independently concluding that the scheme, both in its totality and by virtue of two of its individual but related elements," including the section 6-132(2) witness residence requirement, "places an undue burden on the right to vote under the First Amendment." Id. at 69.

After counsel appeared for the pro seplaintiffs and oral argument was held in this appeal on March 24, 2000, we ordered the parties to submit supplemental briefs addressing all of the issues presented on appeal, including the preclusive effect, if any, of the stipulation and order entered in Molinari. See Lerman v. Board of Elections, No. 99 9015, Order at 1 2 (2d Cir. Mar. 30, 2000). In their supplemental brief, the plaintiffs argue that the defendants in this case⁴ are indeed precluded from defending the constitutionality of the section 6-132(2) witness residence requirement by virtue of the Molinari stipulation and order. The plaintiffs suggest that

the defendants' behavior looks disquietingly like an attempt to have the best of both worlds-to abandon their defense of § 6 137 in a politically sensitive, vigorously contested case that was closely followed in the press, but avoid the usual precedential effects of doing so by pursuing their defense of § 6-132 in what was a pro se, low profile, appeal.⁵ Supp. Brief of Plaintiffs-Appellants at 11. To allow the defendants to relitigate the constitutionality of the section 6-132(2) witness residence requirement, the plaintiffs maintain, would "give[] the lawsuit 'the aura of the gaming table.'" Id. (quoting Blonder-Tongue Labs., Inc. v. University of Illinois Found., 402 U.S. 313, 338 (1971)). The defendants respond that Molinari has no preclusive effect in this case, since Molinaridid not decide the precise issue that we confront in this case and the conclusion made by Chief Judge Korman in Molinari concerning the constitutionality of the section 6-132(2) witness residence...