Parkhouse v. Stringer

• Decision Date: 25 June 2009
• Docket Number: No. 111.,111.
• Citation: 912 N.E.2d 48,12 N.Y.3d 660
• Parties: In the Matter of Virginia PARKHOUSE, Appellant, v. Scott M. STRINGER, as Borough President of Manhattan, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

912 N.E.2d 48

12 N.Y.3d 660

In the Matter of Virginia PARKHOUSE, Appellant, v. Scott M. STRINGER, as Borough President of Manhattan, et al., Respondents.

No. 111.

Court of Appeals of New York.

June 25, 2009.

Whitney North Seymour, Jr., New York City, and Gabriel North Seymour, Falls Village, Connecticut, for appellant.

Michael A. Cardozo, Corporation Counsel, New York City (Alan G. Krams and Kristin M. Helmers of counsel), for respondents.

Matthew Faiella, New York City, and Arthur Eisenberg for New York Civil Liberties Union, amicus curiae.

OPINION OF THE COURT

SMITH, J.

Petitioner's testimony at a public hearing before a New York City agency prompted a complaint by a public official, followed by a subpoena to petitioner from the New York City Department of Investigation (DOI). Petitioner seeks to quash the subpoena, claiming that it exceeds DOI's investigative authority and interferes with her First Amendment rights.

We recognize the importance of protecting citizens who speak publicly to their government from intrusion and harassment that may result from official displeasure with what they say. In this case, therefore, we apply with special stringency the general rule that an investigative subpoena will be upheld only where sufficient facts are shown to justify the inquiry. We nevertheless hold that DOI has made a sufficient showing here, and that its subpoena is valid.

I

Petitioner is associated with an organization known as "Landmark West!," which seeks the preservation of historic buildings on the Upper West Side of Manhattan. In 2006, Landmark West supported designating two stable buildings, the Mason/Dakota Stables and the New York Cab Company Stables, as landmarks. On August 14, 2006, the Borough President of Manhattan, Scott Stringer, wrote a letter to the Chair of the New York City Landmarks Preservation Commission (LPC) that was generally favorable to the proposed landmarking. The letter said that the buildings "are historic fixtures of Manhattan's Upper West Side and should be preserved"; it urged the Chair "to calendar these two important buildings for public hearing by the Landmarks Preservation Commission" and to "protect an important part of the history of the development of the Upper West Side." The letter did not say in so many words, however, that the Borough President thought the buildings should be landmarked.

The LPC did calendar the buildings for a public hearing, which took place on October 17, 2006. In the two months between the letter and the hearing, the Borough President apparently changed his mind and decided not to support the land-marking of one of the buildings; the record does not show whether petitioner or Landmark West knew of this change. The Borough President sent a representative to monitor the October 17 hearing, but did not seek to express any views at it.

Petitioner attended the October 17 hearing, signing a "speakers' sign-in sheet" as a representative of Landmark West. Another Landmark West representative, Lindsay Miller, also attended, signing in as a representative of Assemblymember Linda Rosenthal. Assemblymember Rosenthal later asserted, without contradiction, that she never authorized Ms. Miller to represent her. Indeed, the Assemblymember said she sent a member of her own staff to testify, but that person was not allowed to do so because the LPC limits each organization to one speaker, and Ms. Miller had usurped the slot.

Petitioner began her testimony by stating her name and saying "I'm volunteering today to read the statement of Borough President Scott Stringer." She then read an altered version of the Borough President's August 14 letter, without mentioning that she had altered it. She omitted the Borough President's request that the LPC "calendar" the buildings for public hearing, presumably because the LPC had already done so. More important, she added to the letter an express request for land-marking. The last sentence of the letter, as written by the Borough President, said: "I ask that you move to calendar these two buildings and protect an important part of the history of the development of the Upper West Side." The sentence became, in petitioner's reading: "I ask that you immediately protect the important part of history of the Upper West Side and landmark these buildings." Ms. Miller also testified, reading a letter from Assemblymember Rosenthal, which she altered to similar effect.

Borough President Stringer and Assemblymember Rosenthal were unhappy when they heard of these events, and made their displeasure known in letters to the LPC Chair. The more relevant letter for our purposes was written by the Borough President's Counsel, and focuses on petitioner's role at the hearing. The letter says that petitioner was not authorized to speak for the Borough President, and adds:

"We are concerned that any person and/or organization may have falsely induced reliance from a public agency based on representations appearing to derive from the authority of an elected official or public servant. Such conduct is highly inappropriate and, if pursued with the intent to mislead, a potential violation of New York Penal Law Section 190.25 proscribing criminal impersonation, an offense that includes acting with intent to cause another to rely upon pretended official authority."

After receiving the public officials' letters, the LPC complained to DOI that petitioner and Ms. Miller had made misrepresentations at the public hearing, and DOI began an investigation. DOI asked petitioner to talk to it voluntarily, and when she refused DOI served a subpoena to compel her testimony. Petitioner moved by order to show cause to quash the subpoena; DOI cross-moved to compel compliance. Supreme Court denied the motion to quash and granted the motion to compel (17 Misc.3d 1119[A], 851 N.Y.S.2d 72), and the Appellate Division affirmed (55 A.D.3d 1, 863 N.Y.S.2d 400 [1st Dept. 2008]). Petitioner appeals as of right pursuant to CPLR 5601(b)(1), and we now affirm.

II

DOI's powers under the New York City Charter are broad. Section 803(b) of the Charter says:

"The commissioner [of DOI] is authorized and empowered to make any study or investigation which in his opinion may be in the best interests of the city, including but not limited to investigations of the affairs, functions, accounts, methods, personnel or efficiency of any agency."

Charter § 803(d) says:

"the jurisdiction of the commissioner shall extend to any agency, officer, or employee of the city, or any person or entity doing business with the city, or any person or entity who is paid or receives money from or through the city or any agency of the city."

The latter subdivision has not been read as a limitation on the witnesses DOI may subpoena. Matter of Weintraub v. Fraiman, 30 A.D.2d 784, 291 N.Y.S.2d 438 [1st Dept.1968], aff'd. 24 N.Y.2d 918, 301 N.Y.S.2d 983, 249 N.E.2d 762 [1969] holds that "inquisitorial" power "reaches any person, even though unconnected with city employment, when there are grounds present to sustain a belief such person has information relative to the subject matter of the investigation" (30 A.D.2d at 784-785, 291 N.Y.S.2d 438 [citation omitted]). We thus reject petitioner's suggestion that she is immune from subpoena by DOI merely because she is neither a city employee nor a person doing business with the city. The harder question is whether the facts here provide an adequate basis for subpoenaing her.

III

Myerson v. Lentini Bros. Moving & Stor. Co., 33 N.Y.2d 250, 351 N.Y.S.2d 687, 306 N.E.2d 804 [1973] establishes that public agencies do not have carte blanche in issuing investigative subpoenas. In that case, which involved an investigation by the Department of Consumer Affairs into alleged deceptive trade practices, we held "that a witness subject to a `non-judicial' subpoena duces tecum may always challenge the subpoena in court on the ground it ... subjects the witness to harassment" (id. at 256, 351 N.Y.S.2d 687, 306 N.E.2d 804 [citations omitted]). This holding applies with equal force to a subpoena seeking testimony. In Myerson, we quashed a broad subpoena duces tecum, because of the "slim showing made to support inquisitorial action" (id. at 260, 351 N.Y.S.2d 687, 306 N.E.2d 804). The question here is whether DOI has made a sufficient showing of justification for its "inquisitorial action" in seeking to compel petitioner's testimony.

In answering this question, we must take account of the unusual subject matter of this investigation: the actions and words...