Opinion
No. 03-CV-6363T(F).
July 23, 2004
DECISION and ORDER
INTRODUCTION
Plaintiffs Tim O. Mains ("Mains") and Edward Cavalier ("Cavalier") (collectively "plaintiffs"), name defendants City of Rochester, William A. Johnson, in his official capacity as Mayor of the City of Rochester ("Johnson") and Lois J. Geiss, in her official capacity as President of the Rochester City Council ("Geiss") (collectively "defendants"), in their constitutional challenge of Local Law No. 4, enacted on April 1, 2003, which prevents anyone who is an officer or employee of the Rochester City School District from holding the office of Mayor or member of the Rochester City Council. Specifically, plaintiffs assert that Local Law No. 4 is unconstitutional because it: (1) violates their rights to Freedom of Speech and Freedom Association in contravention of both the federal and state constitutions; (2) deprives them of equal protection of the laws; (3) is overbroad; and (4) deprives them of their fundamental right to vote. Defendants argue that Local Law No. 4 is constitutional and a valid exercise of municipal power because it is rationally related to a legitimate governmental purpose, namely to prevent any potential conflict of interest. For current determination are defendants' motion for summary judgment and plaintiffs' cross-motion for summary judgment. For the reasons set forth below, defendants' motion for summary judgment is denied and plaintiffs' cross-motion for summary judgment is granted.
BACKGROUND
Plaintiff Tim O. Mains ("Mains") has been an elected member of the Rochester City Council since 1986. From that time until the commencement of the 2002/2003 school year, he also was employed as a teacher in the Greece Central School District. In 2001, he obtained a school administrator's certification from New York State's Education Department, and he began to seek new employment opportunities related to his new licensure. In April 2002, Mains, without specifying the description of the position he sought, asked the advice of City of Rochester Corporation Counsel Linda Kingsley as to whether a legal conflict of interest would arise if he, as a City Council member, accepted employment with the Rochester City School District ("RCSD"). Kingsley responded to his inquiry in a letter opinion dated April 15, 2003, which because of its relevance to this decision is fully set forth below:
Plaintiff Cavalier is a resident taxpayer and registered voter of the City of Rochester, Monroe County, New York, and is included in this action as a member of a similarly situated class of putative plaintiffs.
First, let me state that I am aware of no state constitutional or statutory provisions that would be violated. As to the City Charter, Section 2-17 prohibits a person from holding two City offices. A position within the City School District would not constitute a city office for these purposes. As to the City Charter Code of Ethics, there are two relevant provisions in Section 2-18. Subsection C(1) prohibits employment that would impair a person's independence of judgment in the performance of his official duties. Subsection C(3) relates to action by a City official on a matter in which he would have a pecuniary interest. If the interest is minimal, which I believe is the case here since no action by the Council would directly affect a specific employment provision within the City School District, the Councilmember has to identify his interest but is not disqualified from deciding the matter. The only exception would be if the Superintendent's budget proposal identified a specific position to be cut and that position were occupied by you.
The issue of compatibility of offices if reviewed in Informal Opinion 89-53 of the New York State Attorney General. In that Opinion, the Attorney General found that a City Council member could not also serve as an employee of a City School District. That decision was based on the fact that, in that case, the Council would have line item power over the school budget. We have had subsequent discussions with James D. Cole, Assistant Attorney General in Charge of Opinions (the author of this Opinion) who indicated that the line item power was the key to this decision and that, absent such power, he did not believe there would be an incompatibility of office. As you realize, the City Council in Rochester does not have line item power over the School District's budget.
Without line item power, a conflict is a possibility, but not inevitable. Conflict can be avoided by declining to participate in the disposition of a matter if a conflict is only a possibility. If a conflict is inevitable, budgetary matters are so important to the work of a Council member and the persons represented by that council member that a Council member cannot decline to participate every time the budget comes up and the positions would be deemed incompatible. Here, where the Council has approval power over only the bottom line of the City School District budget, conflicts are only possibilities and not inevitable. The positions would thus not be deemed incompatible.
Therefore, in summary, we see no legal prohibition to a member of City council holding a position of employment within the Rochester City School District.
Letter from Linda Kingsley dated April 15, 2003, Plaintiff's Complaint, Ex. A (Doc. No. 1).
In August 2002, Mains informed defendants of his intention to accept a position with RCSD in September 2002, as the Principal of School No. 50, the Helen Barrett Montgomery School for grades K through 5 — a position he still occupies. As principal, Mains administers the educational programs at School 50, but lacks the authority to create the school's budget, which power is designated to the Superintendent's executive cabinet, of which Mains is not a member.
Concerns arose about a possible conflict of interest between the two positions occupied by Mains, because as a City Council member, he is charged with the responsibility of approving the RCSD's budget. That budget is prepared exclusively by the City School Board. The City Council's authority is limited to accepting or rejecting the budget as a whole, with no line item power. However, to address those concerns, the City Ethics Board held public hearings on October 30, 2002 and November 12, 2002. Following the second hearing, the Ethics Board issued a non-binding advisory statement that "a person who is an untenured (sic) employee of RCSD, whose position involves making recommendations on budget or policy matters, should not serve on the Rochester City Council."
In February 2003, Council Members Brian F. Curran and Nancy K. Griswold formally proposed Local Law No. 4, which codified the Ethics Board's non-binding advisory opinion and which would amend the City Charter to provide that:
No person who is an officer or employee of the Rochester City School District shall serve as Mayor or member of the City Council. An officer or employee of the Rochester City School District must vacate said office or employment prior to the effective date of his or her position as Mayor or member of the City Council, or the City office becomes vacant. If the Mayor, or member of City Council accepts an office or employment with the Rochester City School District, the City office becomes vacant.
On March 11, 2003, the Rochester City Council adopted the Amendment by a vote of 6 to 3, and Proposed Local Law No. 4 was then referred to the Mayor for his approval. On March 26, 2003 the Mayor conducted a public hearing, seeking public comment on Proposed Law No. 4, at which public opinion seemed to disfavor the measure. Nonetheless, the Mayor approved Local Law No. 4, which became effective on April 1, 2003. Simultaneously, he issued a memorandum explaining why he decided to approve Local Law No. 4. In it he stated, "[t]he larger truth illuminated by [Local Law No. 4] is that it is entirely consistent with past practice and prudent judgment for the [City] Council, through its creation and modification of the City Charter, to establish reasonable limitations and restrictions on membership on the City Council." (emphasis added).
As a result of the passage of Local Law No. 4, Mains is left with no choice but to either vacate his City Council seat or leave his position within the RCSD. Alleging that the City's adoption of Local Law No. 4 deprives plaintiffs of constitutionally protected rights, they bring this action, seeking a judgment declaring Local Law No. 4 unconstitutional and enjoining its enforcement.
DISCUSSION
Rule 56 of the Federal Rules of Civil Procedure provides that a party is entitled to summary judgment as a matter of law only where, "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact. . . ." F.R.C.P. 56(c) (2003). The party seeking summary judgment bears the burden of demonstrating that no genuine issue of material fact exists, and in making the decision the court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003) (citing Marvel Characters v. Simon, 310 F.3d 280, 285-86 (2d Cir. 2002)). "Summary judgment is improper if there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party." Id. I. Plaintiffs' First and Fourteenth Amendment Claims
First, plaintiffs claim that Local Law No. 4 unconstitutionally restricts their First Amendment rights to free speech and political association because it: (1) excludes thousands of RCSD employees, including Mains, from pursuing public office; and (2) infringes on their rights, as voters, to express their political views through the election of candidates of their choice. Defendants urge the Court to examine the law under a rational relation analysis, rather than a strict scrutiny analysis, contending that precedent requires a lesser degree of scrutiny, and that because Local Law No. 4 is rationally related to a legitimate government interest, it thus withstands plaintiffs' constitutional challenge. Plaintiffs argue that under either test, Local Law No. 4 fails to pass constitutional muster.
In most instances, pursuant to the principle of separation of powers, statutory or regulatory classification are presumptively constitutional and will not be disturbed unless they are without rational basis and rest on grounds wholly irrelevant to the achievement of some permissible governmental purpose. Green v. Waterford Board of Education, 473 F.2d 629, 632 (2d Cir. 1973). Nonetheless, "the presumption of constitutionality is lessened when the Court reviews legislation endangering fundamental constitutional rights, such as freedom of speech. . . ." Nixon v. Administrator of General Services, 433 U.S. 425, 506 (1977). In such cases, strict judicial scrutiny is required and classification will not stand unless justified by some compelling governmental interest. Green, 473 F.2d at 632. Thus, this Court must determine whether Local Law No. 4 should be reviewed under a rational basis or strict scrutiny analysis.
There is no question that an individual possesses no fundamental right to political candidacy. Ballot restrictions, in and of themselves, do not compel strict scrutiny. Clements v. Fashing, 457 U.S. 957, 963 (1982). However, it is well understood that "the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters." Bullock v. Carter, 405 U.S. 134, 143 (1972). When evaluating ballot access restrictions, "it is essential to examine in a realistic light the extent and nature of their impact on voters" since "not every limitation or incidental burden on the exercise of voting rights is subject to a stringent standard of review" Id. States retain an important regulatory interest in elections to ensure that they are fair, honest and orderly. To that end, an individual's right to vote will be affected somewhat, whether by voter registration requirements, candidate eligibility requirements or the voting process itself. Anderson v. Celebrezze, 460 U.S. 780, 788 (1983). Therefore, challenges to ballot restrictions "cannot be resolved by any `litmus-paper test' that will separate valid from invalid restrictions." Id. at 789.
As such, the Supreme Court in Anderson v. Celebrezze, announced a three-part test to be employed when determining the constitutionality of any particular statutory ballot restriction. First, the court must consider the "character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate." Second, it must "identify and evaluate the precise interests put forth by the State as justifications for the burden imposed by its rule." Lastly, it must "determine the legitimacy and strengths of those interests . . . and the extent to which those interests make it necessary to burden the plaintiff's rights." Anderson 460 U.S. at 789. In this case, proper analysis is "very much a matter of `consider(ing) the facts and circumstances behind the law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification.'" Storer v. Brown, 415 U.S. 724, 730 (1974); quoting, Williams v. Rhodes, 393 U.S. 23, 30 (1968); Schulz v. Williams, 44 F.3d 48 (2d Cir. 1994) (adopting Anderson test to evaluate ballot restriction statutes).
In Witt v. Berman, the Second Circuit Court of Appeals adopted the Anderson test when analyzing a constitutional challenge to a statutory ballot restriction brought on Equal Protection grounds. Witt v. Berman, 306 F.3d 1256 (2d Cir. 2002). Therefore, this Court's analysis of plaintiffs' First and Fourteenth Amendment claims under the Anderson framework is equally applicable to their Equal Protection claim.
A. Assessing the Burden
First, this Court must determine the degree to which Local Law No. 4 burdens plaintiffs' constitutional rights. Plaintiffs claim that Local Law No. 4 prohibits more than 4,000 RCSD employees from ever seeking election to the City Council, and that such an enormous exclusion of otherwise eligible candidates violates their rights as voters to express their political beliefs through a particular candidate.
As explained above, it is well-settled that an individual possesses no fundamental constitutional right to become a political candidate. However, unreasonable statutory ballot restrictions may impinge on a person's right to run for office or a voter's fundamental right to freedom of political association. Where the challenged restriction subjects speech to severe restrictions, the regulation must be narrowly drawn to advance a governmental interest of "compelling importance." Burdick, 504 U.S. at 434. In contrast, where the regulation imposes only reasonable administrative restrictions, the government's "important regulatory interests are generally sufficient to justify the restrictions."Id. "[I]n cases in which the regulation clearly and directly restricts core political speech, as opposed to the mechanics of the electoral process, it may make little difference whether [the Court] determine[s] burden first since restrictions on core political speech so plainly impose a sever burden that application of strict scrutiny will be necessary." Lerman v. Board of Elections in the City of New York, 232 F.3d 135, 146 (2d Cir. 2000).
Nonetheless, I find that the burden placed on voters by Local Law No. 4 is onerous. It can not be viewed as a mere administrative regulation aimed at ensuring orderly elections.See Dear v. Board of Elections of the City of New York, 2003 WL 22077679 (E.D.N.Y. 2003) (Local statutory ballot restriction upheld where not a permanent ban on a class's eligibility for certain office.) Local Law No. 4 restricts the core political speech of every registered voter within the City of Rochester by effectively excluding in excess of 4,000 otherwise eligible potential candidates from serving on the City Council. In addition, it forces anyone employed by the RCSD seeking political office as a member of City Council or as Mayor to choose between his livelihood and expressing his political beliefs through political candidacy. It should be left to the voters of the City of Rochester — not the six City Council members who voted in favor of Local Law No. 4 — to determine whether an RCSD employee can adequately represent interests of the electorate. Burdensome requirements that unduly restrict a potential candidate's access to the ballot are subject to fairly strict scrutiny. Clements, 457 U.S. at 963-964. Since Local Law No. 4 imposes significant hurdles to the core political speech of each eligible voter in the City of Rochester, I find that it presents an enormous burden warranting analysis by strict scrutiny.
B. Assessing Defendants' Interest
Second, the Court must examine defendants' proffered interest in enacting Local Law No. 4. According to defendants, the law was passed to avoid any potential conflict of interest arising from an RCSD employee voting, as a council member, on the RCSD budget. I find that this purported purpose for passing Local Law No. 4 is not a necessary exercise of legislative authority in furtherance of a compelling governmental need.
1. The RCSD Budget Approval Process
First, the record is completely devoid of any evidence tending to indicate that the positions of City Council Member and RCSD employee are inherently incompatible. The RCSD is a separate State entity, and relies on the City Council only in two instances: (1) for a local appropriation of funds to fund operations of the District (because the State deprives it of the authority to levy the necessary taxes); and (2) to approve requests for the issuance of municipal bonds to fund the District's capital projects and debt. For the 2003/2004 school year, RCSD obtained approximately $126.1 million from the City, or about 23% of RCSD's budget for that year.
Each year the RCSD annual budget is prepared by the Superintendent of the school district, developed with input from the Superintendent's Cabinet. The principals of each school within the RCSD have no formal role in this process. See Affidavit of Henry Marini in Support of Plaintiffs' Cross-Motion for Summary Judgment, p. 9, ¶ 38 (Doc. No. 33); Affidavit of Kim J. Dyce Faucette in Support of Plaintiffs' Cross-Motion for Summary Judgment, p. 5, ¶ 19 (Doc. No. 32); Affidavit of Louis N. Kash in Support of Plaintiffs' Motion for Summary Judgment, p. 7, ¶ 19 (Doc. No. 36); Affidavit of Tim Mains in Support of Plaintiffs' Motion for Summary Judgment, pp. 6-9, ¶¶ 42-58 (Doc. No. 42). In fact, each building principal receives knowledge of the amount of funds designated for use in a particular building only upon City Council having passed the Superintendent's proposed budget.
The Superintendent's Cabinet is comprised of three Chiefs of School Development Operations, Chief Executive Officer, Chief Academic Officer, Chief Communications Officer, Chief Human Resources Officer, Chief Legal Counsel, Chief Planning Officer, Chief of Surround Care and Community Partnerships, Chief Financial Officer and the Special Assistant to the Superintendent.
Once the Superintendent submits the budget for City Council approval, the City Council is left with only two options — to either approve or disapprove the budget in its entirety. There is no provision in the City Charter which allows the City Council to adjust individual allocations within the proposed budget. Instead, pursuant to Local Law Section 3-9.1 of the City Charter, the City's local revenue allocation is fixed in advance. Thus, the Council's limited duty with respect to the RCSD annual budget is to vote on a predetermined allocated amount. Moreover, once the budget is approved, the RCSD has sole discretion with respect to how the funds are spent without first seeking City Council approval.
Similarly, the City Council has little, if any discretion in approving or disapproving a request for the issuance of a municipal bond. The Council's duty and power is limited to voting on the entire request and it may not adjust individual items within the request. Also, the level of debt incurred by the RCSD is fixed by the City Charter and established City Council policy. As such, discussion between City Council members and the Superintendent "tend to focus on the scope and details of the projects and related technical issues, as a matter of information." Affidavit of Louis N. Kash in Support of Plaintiffs' Motion for Summary Judgment, p. 7, ¶ 17 (Doc. No. 36).
Throughout their voluminous submissions, defendants' only evidence of a conflict of interest between the position of a City Council member and an RCSD employee is the emphasis placed on the amount of funding allocated to the RCSD each year, which is $126.1 million for the 2003/2004 school year, about 27% of the City's entire annual budget. However, a council member has little, if any input into the approval of the RCSD's annual budget. Furthermore, the vast majority of the RCSD employees have no input in developing the Superintendent's proposed budget. As ably explained by Linda Kingsley, the Corporation Counsel, in her letter opinion to Mains on the very topic, "[c]onflict can be avoided by declining to participate in the disposition of a matter if a conflict is only a possibility." Letter from Linda Kingsley dated April 15, 2003, Plaintiff's Complaint, Ex. A (Doc. No. 1). In any event, an RCSD employee or officer on the City Council is but one vote of the total membership of nine. His or her vote alone could not carry the motion. As such, I am unable to find that the classification contained in Local Law No. 4 is rationally related to a legitimate governmental interest, let alone necessary to fulfill a compelling governmental interest.
2. Holding the Dual Positions of City Council Member and RCSD Employee are Not Incompatible
In the recent past, the Council has permitted the RCSD employees to serve as Council Members. When first elected to the City Council, Councilman Robert Stevenson was employed by the RCSD as a teacher, without any evidence that an ethical objection was interposed concerning the incompatibility of the two positions. Even after his retirement from that position, he continued to teach at the RCSD on a contract basis, while still maintaining his position on the City Council. He also continued his service on the Council even while his wife was employed by the RCSD.
On June 19, 1990, Louis N. Kash, they City's Corporation Counsel at the time, issued Councilman Stevenson a letter opinion in which he noted that nothing in the City Charter or the City's Code of Ethics prohibited him from voting on the RCSD's annual budget while his wife was employed as an RCSD teacher. Affidavit of Louis N. Kash in Support of Plaintiffs' Cross-Motion for Summary Judgment (Doc. no. 36). Specifically, he stated, "your vote cannot provide you with any economic benefit [because the City Council has no line item power]. Therefore, you have no interest that would conflict with, or prohibit you from performing, your essential duty as a Councilmember to vote on the District's appropriation at the aggregate level you think best." Plaintiffs' Ex. I (Doc. No. 20).
Plaintiffs have proven that past council members have been employed by the RCSD and satisfactorily discharged the duties required of each position. More importantly, the electorate was aware of his employment by the RCSD and chose to elect him — precisely how the Constitution envisioned the choice should be made. Onerous prohibitions on an individual's candidacy, such as the one contained in Local Law No. 4, offend the "fundamental rights of personal choice and expression which voting in this country was designed to serve." Rosario v. Rockefeller, 410 U.S. 752, 769-770 (1973).
In the instant case, the City's Corporation Counsel, Linda Kingsley, at Mains' request, opined that serving on the Council while simultaneously working for the RCSD would not create a conflict of interest under the City Code of Ethics, Ms. Kingsley's opinion was consistent with earlier Corporation Counsel opinions concerning Councilman Stevenson. Both opinions held that the personal pecuniary interest that an RCSD employee would have in the budget process would be minimal and that "the council member need not disqualify himself from the process." Letter from Linda Kingsley dated April 15, 2003, Plaintiff's Complaint, Ex. A (Doc. No. 1). No council member requested an additional opinion from the New York State Attorney General.
C. Assessing the Means Employed
Lastly, having decided that Local Law No. 4 is severe and that it is not justified by defendants' proffered goals, the Court need not assess the reasonableness of the means employed.Schulz, 44 F.3d at 58.
II. Plaintiffs' Other Claims
Generally, the Supreme Court invites lower courts to refrain from unnecessarily deciding constitutional questions. Since I find that Local Law No. 4 is unenforceable because it violates plaintiffs' Fourteenth Amendment Equal Protection Rights, I refrain from addressing plaintiffs' other constitutional claims.Webster v. Reproductive Health Services, 492 U.S. 490, 495 (1989) ("This Court refrains from deciding constitutional questions where there is no need to do so, and generally does not formulate a constitutional rule broader than the precise facts to which it is to be applied.").
CONCLUSION
The underpinning of the constitutional guarantee of representative government is the unfettered right of its citizens to vote and seek office. To place undue restrictions on a person's right to hold office defeats the constitutional mandate of inclusiveness. Unless a compelling reason exists, any impediment imposed upon an individual's right to vote or hold office should be viewed with scrutiny and should not be allowed to stand unless it passes constitutional muster. At stake is each citizen's right to select his representatives from the broadest spectrum of candidates possible.
As such, I find that Local Law No. 4 is unconstitutional because the purported purpose for its enactment fails to justify the burdens it places on the voters of the City of Rochester. Therefore, defendants' motion for summary judgment is denied in its entirety and plaintiffs' cross-motion for summary judgment is granted. Accordingly, plaintiffs' request for a declaratory judgment declaring Local Law No. 4 unconstitutional is granted. ALL OF THE ABOVE IS SO ORDERED.