Slevin v. City of New York

• Decision Date: 15 December 1982
• Docket Number: 79 Civ. 4627 (ADS).,No. 79 Civ. 4524 (ADS),79 Civ. 4524 (ADS)
• Citation: 551 F. Supp. 917
• Parties: James SLEVIN, Mary Slevin, Brian Clinton, Joan Clinton, Dr. Stanley C. Fell, and Frank D'Amico, on their own behalf and on behalf of all others similarly situated, v. CITY OF NEW YORK; New York City Board of Ethics; Edward I. Koch, as Mayor of the City of New York; and David N. Dinkins as City Clerk, Defendants. John J. BARRY, Marguerite V. Barry and James Grebhardt, on their own behalf and on behalf of all others similarly situated, Plaintiffs, v. CITY OF NEW YORK; New York City Board of Ethics; Edward I. Koch, as Mayor of the City of New York; and David N. Dinkins, as City Clerk, Defendants.
• Court: U.S. District Court — Southern District of New York

551 F. Supp. 917

James SLEVIN, Mary Slevin, Brian Clinton, Joan Clinton, Dr. Stanley C. Fell, and Frank D'Amico, on their own behalf and on behalf of all others similarly situated, v. CITY OF NEW YORK; New York City Board of Ethics; Edward I. Koch, as Mayor of the City of New York; and David N. Dinkins as City Clerk, Defendants.

John J. BARRY, Marguerite V. Barry and James Grebhardt, on their own behalf and on behalf of all others similarly situated, Plaintiffs, v. CITY OF NEW YORK; New York City Board of Ethics; Edward I. Koch, as Mayor of the City of New York; and David N. Dinkins, as City Clerk, Defendants.

Nos. 79 Civ. 4524 (ADS), 79 Civ. 4627 (ADS).

United States District Court, S.D. New York.

November 24, 1982.

As Amended December 15, 1982.

COPYRIGHT MATERIAL OMITTED

Gordon & Shechtman, P.C., New York City, for Slevin plaintiffs; Murray A. Gordon and Richard M. Betheil, New York City, of counsel.

Schofield & Dienst, New York City, for Barry plaintiffs; John P. Schofield, New York City, of counsel.

Frederick A.O. Schwartz, Jr., Corp. Counsel, New York City, for defendants; Deborah Rothman and Denise Thomas, New York City, of counsel.

New York Civil Liberties Union, New York City, amicus curiae; Arthur Eisenberg, New York City, of counsel.

OPINION AND ORDER

SOFAER, District Judge:

These class actions present a challenge to one of the scores of financial disclosure laws adopted by legislatures at all levels of American government since the political scandals of the Nixon Administration. Plaintiffs represent uniformed members of the New York City Fire and Police Departments who earn over $30,000 per year, and their spouses. They challenge the constitutionality of Local Law 48 of 1979, N.Y.C. Admin.Code § 1106-5.0 (hereinafter "LL 48"), a financial disclosure law enacted by the New York City Council and approved by the Mayor. Plaintiffs claim that LL 48, as it applies to them, violates their constitutional rights under the first, fourth, fifth, ninth, and fourteenth amendments to the United States Constitution.

Financial disclosure laws were recognized long before the "Watergate" scandal as a potentially useful device for discovering and deterring conflicts of interest. Post-Watergate developments, however, have dramatically expanded the number, scope, and impact of disclosure laws. Few jurisdictions had adopted disclosure laws prior to 1970; those that existed in general applied to officials holding policymaking positions, and required disclosure, limited to the government involved or to other interested persons, of financial facts relevant to the work of the reporting officer. Since then, hundreds of such laws have been adopted at all levels of government; they frequently apply to large groups of employees, including civil service personnel having little or no important policymaking power and they require disclosure to all members of the public, irrespective of any need to know or purpose in knowing, of all the financial facts concerning the reporting employee or official as well as those concerning all members of the reporting person's family.¹

The significance of these developments has been heightened by the large number of Americans now employed by government. Furthermore, since many financial disclosure laws affect not only the privacy of government employees but also the privacy of their spouses and other household members, the number of affected individuals is far greater than the number of employees actually covered. Financial disclosure laws thereby potentially invade the privacy of millions of Americans as individuals and in their marital and family relations.²

Legislatively mandated financial disclosure laws do not normally violate the first, fourth, or fifth amendments to the Constitution. If any constitutional principle provides protection against disclosure of private, financial information it is the concept of privacy. Justice Harlan, in his illuminating dissent in Poe v. Ullman, 367 U.S. 497, 540, 81 S.Ct. 1752, 1775, 6 L.Ed.2d 989 (1961), recognized that the Constitution is "the basic charter of our society, setting out in spare but meaningful terms the principles of government." The Constitution must protect "legitimate expectations of privacy," he wrote, not only against physical or electronic invasions but against "all unreasonable intrusion of whatever character." Id. at 550, 81 S.Ct. at 1780. See also Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting). More recently, the Supreme Court has indicated that the interest in avoiding disclosure of personal information is constitutionally protected. Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977); Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). Yet, while virtually every court that has considered financial disclosure laws has stated that the Constitution shields individual and family privacy as to financial matters, few courts have placed constitutional limits of any sort on legislatures requiring financial disclosures and providing that they be available to the public.³

Powerful reasons explain why courts have properly been restrained in reviewing disclosure laws on privacy grounds. The right of privacy, as protected by common law and the Constitution, relates to private revelations or direct public regulation of intimate activity, rather than to disclosures by government of information obtained and published for some public purpose.⁴ Financial disclosure laws are analogous to long accepted, lawful techniques for obtaining information reasonably necessary for governmental objectives. Furthermore, the objectives sought by financial disclosure laws are in principle unassailable and theoretically justify a broad scope of inquiry. Honest government is so patently a worthy objective, and the capacity for venality in human behavior is so profound and ingenious, that virtually any disclosure law however intrusive might be rationally justifiable. Financial disclosure laws also derive considerable strength from the benefits widely felt to be derived from openness and from an informed public. Justice Brandeis, an eloquent advocate of privacy, said: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Brandeis, Other People's Money and How the Bankers Use It 62 (1914), quoted in Plante v. Gonzalez, 575 F.2d 1119, 1127 n. 13 (5th Cir.1978). The interest in an informed citizenry also supports a legislature's decision to adopt financial disclosure legislation. An informed public is essential to the nation's success, and a fundamental objective of the first amendment. See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390, 89 S.Ct. 1794, 1806, 23 L.Ed.2d 371 (1969); New York Times Co. v. Sullivan, 376 U.S. 254, 269, 84 S.Ct. 710, 720, 11 L.Ed.2d 686 (1964).

The absence of any clear constitutional provision expressly protecting privacy no doubt adds to the judiciary's reluctance to fashion limits on laws justified as seeking to make government more ethical. None of the more specific and relatively well-defined provisions of the Bill of Rights applies to financial disclosure legislation. Courts are therefore left to consider possible limits based only upon the general right of privacy, an interest that permeates our constitutional scheme but finds no specific expression. While some former Justices of the Supreme Court could peer into the constitutional penumbra and discern with confidence the contours of the privacy right, less visionary readings now prevail. The sweeping claims generally advanced by plaintiffs challenging such laws have made judicial involvement even less tenable than the interests at stake might warrant. Courts have rarely if ever been provided the evidence in specific cases that might establish the propriety of limited protections against the overbroad use of an otherwise proper legislative device.

To the extent plaintiffs in these cases have presented a facial attack on LL 48, their challenge must fail. The Supreme Court's affirmances without opinion of three decisions upholding disclosure laws leave no room for an attack on LL 48's constitutionality as a whole. But plaintiffs in this case insisted, refreshingly, that the Court consider their particular claims, and not merely pass on the law as an abstract exercise. They produced comprehensive evidence of the law's purposes, its legislative background, its scope, its expected effects, and its potential utility. They also proved facts about themselves as municipal servants and human beings, the jobs they do, their record of performance, their fears and feelings.

Plaintiffs introduced strong evidence to support their claims that they should be relieved entirely of the burdens and intrusions created by LL 48. One could reasonably conclude from their evidence that LL 48 is a thoughtless and unwise intrusion by the City into the lives of many of its most valued employees. But the City is constitutionally free to abuse its employees and their families, so long as in doing so it is seeking to achieve a proper objective through a defensible means. Furthermore, with respect to the law's obligation that plaintiffs file the forms required by LL 48, plaintiffs lack any strong expectation of privacy, since such information is already available to the Fire and Police Departments, and the City was able to establish that disclosures of the information to City government might help deter and detect conflicts of interest and venality.

Plaintiffs did succeed, however, in establishing that on the present record the public disclosure aspect of the challenged law would interfere substantially with their privacy interests in autonomy and confidentiality. The law contains a mechanism that would enable covered employees to seek to have highly...