Case 1:08-cv-04539-CPS-JO Document 66 Filed 01/13/09 Page 1 of 64 PageID #: <pageID> UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------------X Guy Molinari, William C. Thompson, Jr., individually and in his official capacity as the New York City Comptroller, Betsy Gotbaum, individually and in her official capacity as Public Advocate for the City of New York, Bill de Blasio, individually and in his official capacity as a member of the New York City Council, Letitia James, individually and in her official capacity as a member of the New York City Council, Charles Barron, individually and in his capacity as a member of the New York City Council, Rosalie Caliendo, Phillip Depaolo, Philip Foglia, Kent Lebsock, Mike Long, Tom Long, Sarah Lyons, Andrea Rich, Ida Sanoff, Gloria Smith, Eric Snyder, Luvenia Suber, Kenneth J. Baer, Kenneth A. Diamondstone, Peter Gleason, Mark Winston Griffith, Ari Hoffnung, Stanley Kalathara, Alfonso Quiroz, Ydanis Rodriguez, Jo Anne Simon, New York Public Interest Research Group, Inc., U.S. Term Limits, and Responsible New York, Plaintiffs, CV-08-4539 (CPS)(JO) - against - MEMORANDUM AND ORDER Michael R. Bloomberg, in his official capacity as Mayor of New York City, Christine C. Quinn, in her official capacity as Speaker of the New York City Council, The New York City Council, The City of New York, James J. Sampel, in his official capacity as president of the Commissioners of Elections for the Board of Elections in New York City, and Board of Elections of New York City, Defendants. ----------------------------------------X SIFTON, Senior Judge. Case 1:08-cv-04539-CPS-JO Document 66 Filed 01/13/09 Page 2 of 64 PageID #: <pageID> - 2 - Plaintiffs Guy Molinari, the New York City Comptroller, various members of the New York City Council who voted against Local Law 51, the Public Advocate, voters, prospective candidates, and good-government groups (“plaintiffs”) commenced this action against Michael Bloomberg (“Mayor Bloomberg”), Christine Quinn (“Speaker Quinn”), the City of New York, and other municipal entities (“defendants”),1 alleging violations of the First Amendment of the United States Constitution, the Fourteenth Amendment, the New York State Constitution, the Municipal Home Rule Law, and the New York City Charter.2 Plaintiffs seek a declaratory judgment that Local Law 51, amending the New York City Charter provisions limiting the eligibility of the Mayor, members of the City Council, and other 1 For a detailed list of plaintiffs and defendants and their affiliations, see a prior opinion in this case at Molinari v. Bloomberg, 2008 U.S. Dist. LEXIS 101193, at *3-*7 (2008). 2The claims are as follows: (1) deprivation of First Amendment rights to a meaningful vote in violation of 42 U.S.C. § 1983 (“§ 1983”) (Claim I); (2) chilling of First Amendment rights to political expression in violation of § 1983 (Claim II); (3) denial of First Amendment rights to access to the ballot in violation of § 1983 (Claim III); (4) denial of Fourteenth Amendment rights to Due Process in violation of § 1983 (Claim IV); (5) disenfranchisement of voters in violation of Article I, § 1 of the New York State Constitution (Claim V); (6) violation of the requirement of Municipal Home Rule Law § 23(2) that voters approve fundamental changes to the City Council by referendum (Claim VI); (7) violation of the requirement of City Charter § 38 that voters approve fundamental changes to their electoral and governmental structure (Claim VII); (8) actions in excess of the powers of the City Council under Municipal Home Rule Law §§ 10, 23 and City Charter §§ 23, 38, and 40 (Claim VIII); (9) violating the public policy of New York expressed in City Charter §§ 38, 1137, 1138 (Claim IX); (10) conflicts of interest on the part of Council Members in violation of City Charter § 2604(b)(3) (Claim X); (11) conflicts of interest on the part of Mayor Bloomberg in violation of City Charter § 2604(b)(3) (Claim XI); and (12) knowingly aiding and abetting the Mayor’s violations of City Charter § 2604(b)(3) in violation of City Charter § 2604(b)(2) and Conflicts Board Rule 1-13(d)(Claim XII). Case 1:08-cv-04539-CPS-JO Document 66 Filed 01/13/09 Page 3 of 64 PageID #: <pageID> - 3 - elected officials to run for office, is unconstitutional and in violation of Municipal Law and the City Charter and an injunction barring the Board of Elections from listing City officials who have served two consecutive terms in office on the ballot in the 2009 City elections. Now before the Court are defendants’ motion to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56, and plaintiffs’ motion for summary judgment pursuant to the same rule. For the reasons stated below, defendants’ motion for summary judgment is granted, and plaintiffs’ motion is denied. BACKGROUND The following facts are drawn from the parties’ submissions in connection with this motion. Disputes are noted. In a 1993 city-wide referendum, New York City voters adopted an amendment to the City Charter instituting a two-term limit for city officials by a vote of 59% in favor versus 41% against, with over one million votes cast. Plaintiffs’ Statement of Material Facts at ¶ 4 (“SMF”); Swain Decl. at ¶ 4(a). The City Charter was accordingly amended to state that it was the public policy of the City of New York to limit the eligibility to run for office of the Mayor, public advocate, comptroller, borough presidents or council members to persons who had not served to or more Case 1:08-cv-04539-CPS-JO Document 66 Filed 01/13/09 Page 4 of 64 PageID #: <pageID> - 4 - consecutive terms in the office they sought to fill.3 In 1996, City Council members presented a proposal to City voters in a referendum seeking to extend term limits from two terms to three terms, which voters rejected by a margin of 54% against versus 46% in favor. SMF at ¶¶ 5, 7; Swain Decl. at ¶ 4(b). At an October 2, 2008 press conference, Mayor Bloomberg announced his plan to support a City Council legislative proposal to alter term limits and to run for reelection, citing the impending economic crisis as the justification. Ex. 28, Press Release, Mayor Bloomberg Addresses New Yorkers About Term Limits, Office of the Mayor, October 2, 2008. The media reported extensive opposition by good-government groups, media columnists, and government officials to the change in the law.4 Local Law 51 (the “term-limits amendment”), amending New 3As enacted pursuant to the 1993 Referendum, the City Charter’s term- limits provisions provided, in pertinent part: § 1137. Public Policy. It is hereby declared to be the public policy of the City of New York to limit to not more than eight consecutive years the time elected officials can serve as mayor, public advocate, comptroller, borough president and council member so that elected representatives are “citizen representatives” who are responsive to the needs of the people and are not career politicians. § 1138. Term Limits. Notwithstanding any provision to the contrary contained in this charter, no person shall be eligible to be elected or to serve in the office of mayor, public advocate, comptroller, borough president or council member if that person has previously held such office for two or more consecutive terms (including in the case of council member at least one four-year term), unless one full term or more has elapsed since that person last held such office... 4See, e.g., Ex. 32, Keith B. Richburg, Bloomberg Is Said to Seek Reelection Despite Term Limit, Wash. Post., October 1, 2008, at A2; Ex. 36, Michael Barbaro, Big Change at Hand, Political Pugilists Are Unusually Calm, N.Y. Times, October 4, 2008, at B1; Ex. 37, David Chen, Clinton: Path is ‘Disturbing’, N.Y. Times, October 16, 2008, at A 36. Case 1:08-cv-04539-CPS-JO Document 66 Filed 01/13/09 Page 5 of 64 PageID #: <pageID> - 5 - York City Charter §§ 1137-38 to extend the number of terms an official could serve consecutively from two to three terms, was introduced on October 7, 2008, “by request of the mayor.” SMF at ¶ 10; N.Y. City Council Introduction 845 of 2008. On October 9, 2008, plaintiff Council members de Blasio, James, and Gotbaum submitted a request for an advisory opinion to the Conflicts of Interest Board of the City of New York (the “Board”), seeking an opinion on whether the City Charter’s conflicts-of-interest provisions would bar term-limited City officials from enacting the term-limits amendment. See Oct. 9. 2008 Letter to Conflicts Board. On October 15, 2008, the Conflicts Board issued its opinion concluding that no violation of the conflicts laws existed or would occur. See Conflicts of Interest Board, Advisory Opinion No. 2008-3 (“COIB Op.”). On October 22, 2008, Council members de Blasio and James commenced a special proceeding against the Board and the City Council, pursuant to N.Y. C.P.L.R. Article 78, in the Supreme Court of New York County.5 They sought judicial review of the Board’s Advisory Opinion and provisional emergency injunctive relief to postpone a Council vote on the term-limits amendment. See Ex. 55, Transcript of October 22, 2008 hearing. Chief Justice Silbermann of the New York Supreme Court denied the application for a temporary restraining order and declined to sign the proposed order to show 5de Blasio et al. v. Conflicts of Interest Bd., Index No. 114189/08 (Sup. Ct. N.Y. County) (Silbermann, J.).