v. Sugarman

• Decision Date: 25 October 2018
• Docket Number: 526007
• Parties: In the Matter of NEW YORK STATE SENATE REPUBLICAN CAMPAIGN COMMITTEE et al., Appellants, v. Risa S. SUGARMAN, as Chief Enforcement Counsel of the Division of Election Law Enforcement of the New York State Board of Elections, Respondent.
• Court: New York Supreme Court — Appellate Division

165 A.D.3d 1536
88 N.Y.S.3d 580

In the Matter of NEW YORK STATE SENATE REPUBLICAN CAMPAIGN COMMITTEE et al., Appellants,
v.
Risa S. SUGARMAN, as Chief Enforcement Counsel of the Division of Election Law Enforcement of the New York State Board of Elections, Respondent.

526007

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

Calendar Date: September 13, 2018
Decided and Entered: October 25, 2018

88 N.Y.S.3d 581

Covington & Burling LLP, New York City (Robert K. Kelner of Covington & Burling LLP, Washington, DC, of counsel, admitted pro hac vice), for appellants.

Risa S. Sugarman, New York State Board of Elections, Albany (John M. Tuppen of counsel), for respondent.

Barbara D. Underwood, Attorney General, Albany (Jennifer L. Clark of counsel), in her capacity under Executive Law § 71.

Before: Egan Jr., J.P., Clark, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.P.

88 N.Y.S.3d 582

Appeal from that part of an order of the Supreme Court (McDonough, J.), entered August 28, 2017 in Albany County, which denied petitioners' application pursuant to CPLR 2304 and 3103 to quash a subpoena duces tecum and for an order of protection, and granted respondent's motion to dismiss the petition.

Petitioner New York State Senate Republican Campaign Committee (hereinafter the Campaign Committee) is the "campaign arm of the New York State Senate Republicans" whose purpose is to promote the election of Republican candidates to that legislative body. Petitioner New York State Senate Republican Campaign Housekeeping Committee (hereinafter the Housekeeping Committee) is not a separate legal entity from the Campaign Committee but, rather, an administrative "housekeeping account" used by the Campaign Committee to account for those receipts and expenditures involving the maintenance of a permanent headquarters, staff and other "ordinary activities" separate and distinct from promoting specific candidates to elected office. Respondent is the chief enforcement counsel of the State Board of Elections and has the sole authority within the State Board to investigate alleged campaign finance violations pursuant to Election Law article 14 as well as "other statutes governing campaigns, elections and related procedures" ( Election Law § 3–104[1][b] ).

In March 2017, pursuant to Election Law §§ 3–102(5) and 3–104 (3), respondent issued two identical subpoenas duces tecum to the Campaign Committee and the Housekeeping Committee, respectively, seeking documents pertaining to those vendors who received payments from both committees between 2014 and 2016. In reply, petitioners made a request for respondent to withdraw the subject subpoenas, but that request was denied. Petitioners then commenced this special proceeding pursuant to CPLR 2304 and 3103 for an order quashing the subpoenas and seeking a protective order with regard thereto. Respondent thereafter moved to dismiss the petition and for an order directing petitioners to comply with the subpoenas.¹ Following oral argument, Supreme Court, among other things, granted respondent's motion to dismiss the petition and ordered petitioners to comply with the subpoenas within 45 days of its order. Petitioners now appeal.

As a threshold matter, petitioners argue that respondent's broad statutory authority to conduct investigations and issue subpoenas pursuant to the Election Law, without having to obtain the consent of a majority of the Commissioners of the State Board, violates N.Y. Constitution, article II, § 8 because it permits respondent to unilaterally regulate and affect the

88 N.Y.S.3d 583

State Board, upsetting the equal bipartisan representation requirement provided for in said provision. We disagree. "Legislative acts ... enjoy a strong presumption of constitutionality, and parties challenging a duly enacted statute face the initial burden of demonstrating the statute's invalidity beyond a reasonable doubt" ( New York State United Teachers v. State of New York, 140 A.D.3d 90, 95, 31 N.Y.S.3d 618 [2016] [internal quotation marks, brackets, ellipsis and citations omitted], appeal dismissed 28 N.Y.3d 978, 39 N.Y.S.3d 852, 62 N.E.3d 564 [2016], lv denied 28 N.Y.3d 915, 2017 WL 581847 [2017] ; see Overstock.com, Inc. v. New York State Dept. of Taxation & Fin., 20 N.Y.3d 586, 593, 965 N.Y.S.2d 61, 987 N.E.2d 621 [2013], cert denied 571 U.S. 1071, 134 S.Ct. 682, 187 L.Ed.2d 549 [2013] ; LaValle v. Hayden, 98 N.Y.2d 155, 161, 746 N.Y.S.2d 125, 773 N.E.2d 490 [2002] ). Here, a plain language reading of N.Y. Constitution, article II, § 8 establishes that, by its very terms, it applies only to those laws "creating, regulating or affecting boards or officers charged with the duty of registering voters, or of distributing ballots to voters, or of receiving, recording or counting votes at elections" (see Clark v. Cuomo, 66 N.Y.2d 185, 191, 495 N.Y.S.2d 936, 486 N.E.2d 794 [1985] ). The Court of Appeals has recognized that, where, as here, "the personnel who implement [the law] do not register voters, distribute ballots or receive, record or count votes at elections," the bipartisan representation requirement set forth in N.Y. Constitution, article II, § 8, is inapplicable ( id. ). Notably, respondent's statutory powers and duties do not include registering voters, distributing ballots or receiving, recording or counting votes at an election (see Election Law § 3–104[1][b] ). Accordingly, we find that petitioners have failed to establish, beyond a reasonable doubt, that the investigatory authority statutorily granted to respondent by the Election Law is unconstitutional.

We find petitioners' contention that respondent failed to articulate an adequate factual basis for issuance of the subject subpoenas to be unavailing. An agency may issue a subpoena duces tecum so long it has the proper authority and a sufficient factual basis for its investigation and the evidence sought is reasonably related to the subject of the inquiry (see Matter of A'Hearn v. Committee on Unlawful Practice of Law of N.Y. County Lawyers' Assn., 23 N.Y.2d 916, 918, 298 N.Y.S.2d 315, 246 N.E.2d 166 [1969], cert denied 395 U.S. 959, 89 S.Ct. 2099, 23 L.Ed.2d 745 [1969] ; Matter of Roemer v. Cuomo, 67 A.D.3d 1169, 1171, 888 N.Y.S.2d 669 [2009] ; Matter of Sachs v. New York State Racing & Wagering Bd., 227 A.D.2d 802, 803, 642 N.Y.S.2d 440 [1996] ). "An application to quash a subpoena should be granted only where the futility of the process to uncover anything...