Sullivan v. N.Y.S. Joint Comm'n on Pub. Ethics

• Decision Date: 02 June 2022
• Docket Number: 532733
• Citation: 170 N.Y.S.3d 234
• Parties: Katherine C. SULLIVAN et al., Appellants, v. NEW YORK STATE JOINT COMMISSION ON PUBLIC ETHICS et al., Respondents.
• Court: New York Supreme Court — Appellate Division

170 N.Y.S.3d 234

Katherine C. SULLIVAN et al., Appellants,

v.NEW YORK STATE JOINT COMMISSION ON PUBLIC ETHICS et al., Respondents.

532733

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: April 21, 2022

Decided and Entered: June 2, 2022

Government Justice Center, Inc., Albany (Cameron J. Macdonald of counsel), for appellants.

Letitia James, Attorney General, Albany (Beezly J. Kiernan of counsel), for respondents.

Before: Clark, J.P., Pritzker, Colangelo and McShan, JJ.

OPINION AND ORDER

Pritzker, J.

Appeal from an order and judgment of the Supreme Court (Corcoran, J.), entered December 3, 2020 in Albany County, which granted defendants’ motion to dismiss the amended complaint.

In 2018, the Legislature was considering the Child Victims Act (see L 2019, ch 11 [hereinafter the CVA]), which prospectively extended the statutes of limitations for civil and criminal actions and temporarily revived otherwise time-barred civil actions related to sexual offenses against a child. Plaintiff Katherine C. Sullivan, a resident of Florida, supported the CVA and expressed that support, among other ways, through a website that explained that Sullivan was a survivor of child sexual assault that she was subjected to while attending a school in the City of Troy, Rensselaer County, but that she was barred from seeking legal recourse by then-applicable statutes of limitations. A list of state senators who opposed the CVA was provided, along with a script and postcard template for website visitors to contact state senators to voice support for the CVA. Sullivan also rented digital billboard space in this state that displayed a rotating set of screens, one of which purportedly read, "NY Pass the Child Victims Act," and another that displayed photographs of state senators next to text asking why they did not support the CVA. Some of the screens also purportedly displayed Sullivan's website address; all of the screens indicated that they were paid for by plaintiff Kat Sullivan LLC (hereinafter the LLC). Sullivan later arranged for an airplane to circle the Capitol and the school in Troy towing banners that displayed, among other things, the address of her aforementioned website and the hashtag # NYPASSCVA.

Defendant New York State Joint Commission on Public Ethics (hereinafter JCOPE) was, during the relevant time period, charged by statute with administration and enforcement of the Lobbying Act (see Legislative Law art 1–A).¹ The Lobbying Act requires individuals and organizations engaged in lobbying to register with JCOPE and submit periodic reports on such activity (see Executive Law § 94[1] ; Legislative Law §§ 1–c [a], [b] ; 1–d [a]; 1–e [a][3][ii]; [c]; 1–h [a]; 1–j [a]; see also Matter of New York Temporary State Commn. on Lobbying v. Crane, 49 A.D.3d 1066, 1066, 853 N.Y.S.2d 688 [2008] ). Commencing in June 2018, JCOPE notified plaintiffs that their efforts in support of the CVA may require them to register and begin reporting pursuant to the Lobbying Act or explain in writing why they should not be required to do so. Plaintiffs resisted, and JCOPE formally notified them that they had allegedly violated the Lobbying Act by failing to register and report their activity. Plaintiffs still did not cooperate, claiming, among other things, that they did not meet the reporting threshold or the definition of lobbyists. In December 2019, JCOPE notified plaintiffs that, although its records indicated a likely violation of the Lobbying Act, it was exercising its discretion to forgo "continued investigation and enforcement" and, instead, issue guidance and "regulatory clarification." Consequently, JCOPE did not take any further action against plaintiffs with respect to their attempts to influence passage of the CVA, but warned plaintiffs that, if they undertook any future activity covered by the Lobbying Act, the registration and reporting requirements would again be triggered, as well as the attendant policies for noncompliance.

In February 2020, plaintiffs filed an amended complaint against JCOPE and the Chair of JCOPE, asserting four causes of action and seeking, among other things, a multi-part declaration that the Lobbying Act was unconstitutional on its face and as applied to plaintiffs, that certain lobbying regulations were unconstitutional and promulgated without legislative authority and that, in 2018, plaintiffs did not engage in lobbying activity and were not lobbyists.² Defendants filed a pre-answer motion to dismiss the amended complaint, arguing that plaintiffs’ facial challenges to the Lobbying Act and lobbying regulations failed to state a claim and that their as-applied challenge was not ripe for judicial review in the absence of a determination by JCOPE that plaintiffs were lobbyists engaged in lobbying. Plaintiffs opposed. Following defendants’ reply, oral argument and supplemental briefing, Supreme Court granted defendants’ motion and dismissed the amended complaint, holding that the Lobbying Act was not facially unconstitutional. Furthermore, the court agreed with defendants that plaintiffs’ remaining causes of action were nonjusticiable. Plaintiffs appeal.

Before analyzing the procedural and substantive issues, a nuts-and-bolts review of the Lobbying Act is required. Generally, the Lobbying Act applies to "any attempt to influence" state or local legislation, executive action, regulation, rulemaking, ratemaking and procurement ( Legislative Law § 1–c [c] ). Citing ( United States v. Harriss 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 [1954] ), defendants assert that JCOPE has constructively narrowed application of the Lobbying Act to (1) direct contact with government officials and bodies and (2) campaigns to encourage others to make direct contact with government officials and bodies. Oversight of the second type of activity, which JCOPE calls "grassroots lobbying," purportedly derives from the "artificially stimulated letter campaign" that the Supreme Court of the United States, in United States v. Harriss ( id. at 620, 74 S.Ct. 808 ), determined could be permissibly regulated by the federal lobbying statute at issue in that case. Defendants attached to their motion a 2016 advisory opinion issued by JCOPE setting out the requirements for a grassroots lobbying communication as one that (1) "[r]eferences, suggests, or otherwise implicates an activity covered by [ Legislative Law § 1–c (c) ]"; (2) "[t]akes a clear position on the issue in question"; and (3) "[i]s an attempt to influence a public official through a call to action, i.e., solicits or exhorts the public, or a segment of the public, to contact [a] public official[ or officials]." In 2019, JCOPE promulgated lobbying regulations (see 19 NYCRR part 943), which purportedly "serve[d] to codify the constitutional authority to regulate grassroots lobbying" ( 19 NYCRR 943.1 [a]). The lobbying regulations include the definition of grassroots lobbying communication detailed in the 2016 advisory opinion (see 19 NYCRR 943.7 [b][2]), and further specify that such grassroots lobbying communication may be through letter writing campaigns or, among other things, billboards, print media advertisements, websites and social media communications (see 19 NYCRR 943.7 [g][1]).

The Lobbying Act further states that "every person or organization retained, employed or designated by any client to engage in lobbying" is a "lobbyist" ( Legislative Law § 1–c [a] ). To complete the circle, a "client" is "every person or organization who retains, employs or designates any person or organization to carry on lobbying activities on behalf of such client" ( Legislative Law § 1–c [b] ). Lobbyists and clients are subject to JCOPE's jurisdiction (see Executive Law § 94[1] ). At oral argument in Supreme Court, defendants represented that, based on JCOPE's interpretation of the statute, a lobbyist and client could be the same person or entity — that is, a lobbyist engaged in lobbying on her or his own behalf. JCOPE codified this interpretation in the lobbying regulations under the term "[d]esignated [l]obbyist" ( 19 NYCRR 943.3 [g][1]). The regulations were amended in 2020 to specifically hold that one who publishes a grassroots lobbying communication is engaged in grassroots lobbying on her or his own behalf and, thus, is her or his own designated lobbyist (see 19 NYCRR 943.7 [c][1]; compare 19 NYCRR 943.7 [former (c)]). That particular provision includes as its example "a person who buys billboard space that includes a[g]rassroots [l]obbying [c]ommunication" ( 19 NYCRR 943.7 [c][1][i]).

Every lobbyist who anticipates spending or receiving $5,000 or more annually for the purpose of lobbying, or actually does so receive or spend, must register with and submit bimonthly reports to JCOPE, and, with some exceptions, every client who reasonably anticipates spending $5,000 or more annually on lobbying must submit semiannual reports to JCOPE (see Legislative Law §§ 1–e [a][3][ii] ; [c]; 1–h [a]; 1–j [a]). Lobbyists and clients who meet the reporting threshold must reveal to JCOPE, essentially but among other things, each other's identities; the subject matter of the lobbying; the officials, bodies or agencies lobbied; and the amount of money spent on those efforts (see Legislative Law §§ 1–e [c] ; 1–h [b]; 1–j [b]). Knowing and willful failure to timely register or submit a report required by the Lobbying Act could result in civil and criminal penalties (see Legislative Law § 1–o [a], [b] ).

JCOPE may, on its own initiative, investigate possible violations of the Lobbying Act, which includes notice to the subject of the investigation and an opportunity for written response (see Executive Law § 94[13][a] ). JCOPE members may then vote to "commence a full investigation ... to determine whether a substantial basis exists to conclude that a violation of law has occurred" ( Executive Law § 94[13][a] ; see Executive Law § 94[13][b] ). Following a hearing before an independent hearing officer,...