Ognibene v. Parkes
| Decision Date | 04 April 2013 |
| Docket Number | No. 08 Civ. 1335 (LTS)(FM),08 Civ. 1335 (LTS)(FM) |
| Parties | TOM OGNIBENE, YVETTE VELAZQUEZ BENNET, VIVIANA VAZQUEZ-HERNANDEZ, ROBERT PEREZ, FRAN REITER, SHEILA ANDERSEN-RICCI, MARTINA FRANCA ASSOCIATES, LLC, REITER/BEGUN ASSOCIATES, LLC, DENIS GITTENS, OSCAR PEREZ, THE KINGS COUNTY COMMITTEE OF THE NEW YORK STATE CONSERVATIVE PARTY, THE NEW YORK STATE CONSERVATIVE PARTY, MARTIN DILAN, and MARLENE TAPPER, Plaintiffs, v. JOSEPH P. PARKES, S.J, in his official capacity as Chairman of the New York City Campaign Finance Board, DALE C. CHRISTENSEN, JR., KATHERYN C. PATTERSON, and MARK S. PIAZZA, in their official capacity as members of New York City's Campaign Finance Board, MARK DAVIES, in his official capacity as Executive Director of the New York City Conflicts of Interest Board, and MONICA BLUM, STEVEN ROSENFELD, ANDREW IRVING, and ANGELA M. FREYRE, in their official capacity as members of New York City's Board of Conflicts of Interest, and MICHAEL MCSWEENY, in his official capacity as Acting City Clerk of New York City, Defendants. |
| Court | U.S. District Court — Southern District of New York |
DAVIDOFF, MALITO & HUTCHER, LLP
By: Charles Capetanakis, Esq.
THE BOPP LAW FIRM
By: James Bopp, Jr., Esq. (pro hac vice)
Anita Y. Woudenberg, Esq. (pro hac vice)
NYC LAW DEPARTMENT, OFFICE OF
THE CORPORATION COUNSEL
By: Jonathan L. Pines, Esq.
PROSKAUER ROSE LLP
By: Peter J.W. Sherwin, Esq.
Matthew J. Morris, Esq.
Jamison Davies, Esq.
David Munkittrick, Esq.
THE BRENNAN CENTER FOR JUSTICE
AT NYU SCHOOL OF LAW
By: J. Adam Skaggs, Esq.
Mark Ladov, Esq.
David Early, Esq.
JENNER & BLOCK LLP
By: Paul M. Smith, Esq.
Michael W. Ross, Esq.
Joshua H. Rubin, Esq.
Randall Adams, Esq.
LAURA TAYLOR SWAIN, United States District Judge Plaintiffs, who intend to run for public office in New York City or to contribute to candidates' campaigns,1 bring this action for declaratory and injunctive relief against the Defendants -- the chairmen and members of New York City's Campaign Finance and Conflicts of Interest Boards and acting City Clerk -- asserting that certain provisions of New York City's political campaign finance laws violate the First and Fourteenth Amendments to the Constitution of the United States. Specifically, Plaintiffs challenge provisions of the New York City Administrative Code ("Administrative Code" or "Code") which raise expenditure limits or permit additional matching funding for candidates participating in public financing when their opponents' spending and contribution receipts cross certain thresholds, or when certain other circumstances are present. Plaintiffs assert that these provisions of the Administrative Code unduly burden protected political speech and association rights in violation of the First Amendment and deny equal protection of the laws in violation of the Fourteenth Amendment, both facially and as applied. The Court has jurisdiction of this action pursuant to 28 U.S.C. §§ 1331 and 1343(a).
Plaintiffs filed an original and an amended complaint in February 2008. Shortly thereafter, Plaintiffs sought a preliminary injunction as to Counts II, III, IV, VII and VIII of the Amended Complaint, and Defendants cross-moved for partial summary judgment as to the same counts.2 The Court denied Plaintiffs' motion and granted Defendants' motion, upholding theconstitutionality of the challenged provisions of the Administrative Code. See Ognibene v. Parkes, 599 F. Supp. 2d 434 (S.D.N.Y. 2009), aff'd 671 F.3d 174 (2d Cir. 2011).3 On December 16, 2011, the Court issued an Order, pursuant to the parties' stipulation, declaring NYC Administrative Code §§ 3-706(3)(a)(ii)-(iii) and (b)(ii)-(iii) unconstitutional and permanently enjoining their enforcement.4 The parties could not reach agreement as to the provisions of the Code that are the subjects of the instant motion practice - § 3-706(3)(a)(I) and (b)(I) ("Expenditure Limit Relief" provisions), and § 3-705(7) ("Sure Winner" provision).
Now before the Court are the parties' cross motions for summary judgment as to Counts XI, XII, XIII, and XIV of the Amended Complaint, which challenge the constitutionality of the Expenditure Limit Relief and Sure Winner provisions.5 Citizens Union, the Brennan Center for Justice, Common Cause/NY, the League of Women Voters of New York City and New York Public Interest Research Group (collectively, the "Organization Amici"), filed an amicus curiae brief in support of Defendants. City Council candidates Brad Lander and Mark Winston Griffith (collectively, the "Candidate Amici") also filed an amicus curiae brief insupport of Defendants. The Court has considered carefully the submissions and arguments of the parties and amici and, for the reasons explained below, Plaintiffs' motion for summary judgment is granted in part and denied in part, and Defendants' motion for summary judgment is granted in part and denied in part.
Unless otherwise indicated, the following material facts are undisputed. New York City's Campaign Finance Act (the "CFA") established the New York City Campaign Finance Program (the "Program") in 1988. (Defs.' 56.1 Stmt. ¶ 1.)6 The Campaign Finance Board (the "Board") administers the Program and provides public matching funds to eligible candidates running for Mayor, Comptroller, Public Advocate, Borough President and City Council member. (Id. at ¶ 2.) Under the CFA, candidates are classified as "participating," "non-participating," or "limited participating." (Plaintiffs' 56.1 Statement ¶ 4.) Participating candidates are those who meet the requirements to participate in the public funding Program and choose to participate by filing the appropriate written certification. (Id. at ¶ 5.) Non-participating candidates are those who either choose not to participate in the Program or who do not meet the requirements to do so. (Id. at ¶ 6.) Limited participating candidates are those who file appropriate paperwork indicating their decision to file the requisite certification to be such a candidate. (Id. at ¶ 7.) Limiting participating candidates agree, inter alia, to (1) not accept contributions; (2) abide by the expenditure limits imposed on participating candidates; and (3) forego the public funds available to participating candidates. (Id.)
The CFA imposes certain obligations on all candidates, including required filing of financial disclosure statements reporting contributions and expenditures, limitations on the amount of contributions that can be received from any single contributor, and the obligation to respond to the Board's requests for documentation and information to verify compliance with the Program. (Defs.' 56.1 Statement at ¶ 4.) A participating candidate's campaign receives public matching funds for all eligible individual private contributions by New York City residents of up to $175, at a rate of six dollars in public funds for every dollar in private contributions (up to $1,050 in public funds per contributor). (Id. at ¶ 5.) Thus, a $100 qualifying contribution to a participating candidate by a New York City resident would be matched with $600 in public funds. (Id.) The Campaign Finance Program does not impose expenditure limitations on non-participating candidates. (Id. at ¶ 9.) Participating and limited participating candidates, however, are subject to expenditure limits. (Id.) For the 2013 primary and general elections, the expenditure limits for participating candidates running for offices covered by the CFA are as follows:
+-----------------------------------------+
¦Mayor: ¦$6,426,000¦
+------------------------------+----------¦
¦Public Advocate & Comptroller:¦$4,018,000¦
+------------------------------+----------¦
¦Borough President: ¦$1,446,000¦
+------------------------------+----------¦
¦City Council: ¦$168,000 ¦
+-----------------------------------------+
(Id. at 10.)
Sections 3-706(3)(a)(i) and (b)(i) of the Administrative Code, commonly known as the "Expenditure Limit Relief" provisions, set out the circumstances under which the expenditure limits to which participating and limited participating candidates are usually subject may be altered. Specifically, § 3-706(3)(a)(i) provides that, when the Campaign Finance Board has determined that a non-participating candidate has "spent or contracted or ha[s] obligated to spend, or received in loans or contributions, or both," more than half the applicable expenditurelimit for the relevant office, the expenditure limit applicable to a participating or limited participating opponent will be increased to 150% of that limit. (Code § 3-706(3)(a)(I); Defs.' 56.1 Statement at ¶ 35.) Similarly, when a non-participating candidate raises or spends more than three times the applicable expenditure limit for the relevant office, participating or limited participating opponents will no longer be subject to any expenditure limit. (Code § 3-706(3)(b)(I); Defs.' 56,1 Statement at ¶ 36.)
Pursuant to Admin. Code Section 3-705(2)(b), eligible participating candidates may receive public matching funds up to a maximum of 55% of the stated expenditure limits. (Defs.' 56,1 Statement at ¶ 12.) This maximum public funding level does not change, even though the expenditure limits may be increased or eliminated under certain circumstances. (Id. at ¶ 14.) Accordingly, for participating candidates running for a covered office in 2013, the maximum public matching funds available are as follows:
+-------------------------------------------------------------+
¦Mayor: ¦$3,534,300 (55% of $6,426,000)¦
+------------------------------+------------------------------¦
¦Public Advocate & Comptroller:¦$2,209,900 (55% of $4,018,000)¦...To continue reading
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