Opinion
0105064/2006.
October 17, 2007.
DECISION and ORDER
Defendants move under CPLR § 3211 (a) (1) (2), and (7) to dismiss the complaint. Although this motion was fully briefed more than a year ago, the parties jointly requested the court to postpone a decision until after the Appellate Division, First Department, decided the parties' cross appeals of this court's decision in a related case, Urban Justice Center v. Pataki. Index No. 102180/05 (the "Related Action"). Now that the First Department has ruled in the Related Action (Urban Justice Centner v. Pataki. 38 A.D.3d 20 [1st Dep't 2006]), the parties have agreed to reinstate this action to the court's calendar, and have submitted supplemental briefs.
In the Related Action, the plaintiffs alleged that a number of rules and practices in the State Assembly and Senate prevented members of the minority party in each Chamber from being able to act as effective legislators. In this action, plaintiffs allege that, in violation of the Free Speech Clause in the Federal and the State Constitutions, staff members appointed by the majority party, in each Chamber, censor the content of minority Members' constituent communications eligible for the franking privilege, and use overbroad and vague criteria to do so. For example, such communications may not use the words "Democrat" or "Republican," or the names of the Governor or the legislative leaders, including defendants Bruno and Silver. Nor may such communications discuss how the Legislature operates, or any legislative proposals to modify current legislative rules and practices, or criticize any legislative issue about which the majority is particularly concerned.
As an initial matter, plaintiff Urban Justice Center (the "Center") lacks standing. The gravamen of the complaint is that the franking privilege provided by Legislative Law § 16 is being restricted on the basis of content. The Center, however, is not entitled to the franking privilege in any circumstances.
Plaintiffs Kreuger and Kirwan, however, do have standing to raise their claims. Although neither alleges any proposed communication by either of them has been refused the franking privilege, to the extent that the content-based restrictions described above are known among the legislators, Kreuger's and Kirwan's subsidized mailings to their constituents are, in effect, being censored. Moreover, a party has standing to raise a freedom of speech claim even when a restriction on speech "may cause others not before the court to refrain from constitutionally protected speech or expression." Broadrick v. Oklahoma. 413 U.S. 601, 612 (1973); see also People v. Duoont, 107 A.D.2d 247 (1st Dep't 1985); Highway Tavern Corp. v. McLauahlin, 105 A.D.2d 122 (2nd Dep't 1984).
Legislative Law § 16 (a) provides that:
[t]he secretary of the senate . . . and the clerk of the assembly . . . shall prepay the postage on all official mail deposited in the post office of the respective houses for transmission through the mails by members of the senate and assembly, respectively.
What communications qualify as "official mail," within the meaning of Legislative Law § 16, must be defined by the Legislature. See generally. Urban Justice Center v. Pataki, 38 A.D.3d 20, supra. Moreover, neither Senator Kreuger nor Representative Kirwan, nor any other member of the Legislature, is being prevented from using the mail. The limitations of which plaintiffs complain are solely limitations on the use of a subsidy (see Gottlieb v. Durvea, 38 A.D.2d 634 [3rd Dep't 1971], aff'd 30 N.Y.2d 807), and the government can make content-based distinctions when it subsidizes speech. Davenport v. Washington Educ. Assn., ___ U.S. ___, 127 S.Ct. 2372 (2007); Regan v. Taxation With Representation of Wash., 461 U.S. 540 (1983).
Accordingly, it hereby is
ORDERED that the motion is granted and the complaint is dismissed with costs and disbursements as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it further is
ORDERED that the Clerk is directed to enter judgment accordingly.