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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK THE NOVEMBER TEAM, INC., et al., Plaintiffs, -against- NEW YORK STATE JOINT COMMISSION ON PUBLIC ETHICS, et al., Defendants. : : : : : : : : : : ECF Case No. 1:16-cv-1739 (LGS) MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS Dan K. Webb (pro hac vice) Winston & Strawn LLP 35 West Wacker Drive Chicago, IL 60601 Telephone: (312) 558-5600 Fax: (312) 558-5700 [email protected] Thomas Patrick Lane Seth E. Spitzer Winston & Strawn LLP 200 Park Avenue New York, New York 10166-4193 Telephone: (212) 294-6700 Facsimile: (212) 294-4700 [email protected] [email protected] Case 1:16-cv-01739-LGS Document 30 Filed 05/13/16 Page 1 of 32

description

MEMORANDUM OF LAW IN SUPPORT OFDEFENDANT’S MOTION TO DISMISS

Transcript of 30jcope Memo

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

THE NOVEMBER TEAM, INC., et al.,

Plaintiffs,

-against-

NEW YORK STATE JOINT COMMISSION

ON PUBLIC ETHICS, et al.,

Defendants.

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ECF Case

No. 1:16-cv-1739 (LGS)

MEMORANDUM OF LAW IN SUPPORT OF

DEFENDANT’S MOTION TO DISMISS

Dan K. Webb (pro hac vice)

Winston & Strawn LLP

35 West Wacker Drive

Chicago, IL 60601

Telephone: (312) 558-5600

Fax: (312) 558-5700

[email protected]

Thomas Patrick Lane

Seth E. Spitzer

Winston & Strawn LLP

200 Park Avenue

New York, New York 10166-4193

Telephone: (212) 294-6700

Facsimile: (212) 294-4700

[email protected]

[email protected]

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TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT .....................................................................................................1

STATEMENT OF FACTS ..............................................................................................................3

I. NEW YORK LOBBYING REGULATION HISTORY .....................................................3

II. THE ADVISORY OPINION ..............................................................................................5

III. PROCEDURAL HISTORY ................................................................................................7

ARGUMENT...................................................................................................................................7

IV. THE COMPLAINT SHOULD BE DISMISSED BECAUSE THE PLAINTIFFS

LACK STANDING AND THEIR CLAIMS ARE NOT RIPE FOR REVIEW .................7

A. Standard of Review..................................................................................................7

B. Plaintiffs Lack Article III Standing Because They Have Suffered No Injury In

Fact ..........................................................................................................................8

1. The Plaintiffs’ Reading of the Advisory Opinion Is Unreasonable...........10

2. The Plaintiffs Offer No Objective Evidence That They Face

Prosecution ................................................................................................12

C. The Plaintiffs’ Claims Are Not Ripe For Adjudication.........................................14

1. The Plaintiffs’ Claims are Not Constitutionally Ripe Because Their

Injuries are Speculative and Conjectural ...................................................14

2. The Plaintiffs’ Claims Are Not Prudentially Ripe Because They Are

Contingent On Positions JCOPE Has Rejected and the Plaintiffs

Would Suffer No Harm If the Court Awaited a Single Inquiry or

Enforcement Action to Sharpen the Issues ................................................15

V. THE COURT SHOULD ABSTAIN FROM REACHING THE PLAINTIFFS’

FEDERAL CLAIMS BECAUSE THEY TURN ON THE INTERPRETATION OF A

STATE REGULATION AND A STATE COURT DECISION COULD MOOT THE

FEDERAL QUESTIONS AND SO RENDER THIS COURT’S OPINION

ADVISORY.......................................................................................................................18

A. Deference to JCOPE’s Interpretation Would Moot The Federal Question ...........20

B. If a New York Court Considered the Advisory Opinion Potentially Overbroad, It

Would Construe the Opinion to Save It.................................................................21

C. The Court Should Abstain Under Pullman............................................................22

CONCLUSION..............................................................................................................................24

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TABLE OF AUTHORITIES

Page(s)

Cases

Abbott Labs. v. Gardner, 387 U.S. 136 (1967), overruled on other grounds by

Califano v. Sanders, 430 U.S. 99 (1977) ...........................................................................14, 15

Alliance for Envtl. Renewal, Inc. v. Pyramid Crossgates Co.,

436 F.3d 82 (2d Cir. 2006).........................................................................................................7

American Sav. Bank, FSB v. UBS Fin. Servs., Inc.,

347 F.3d 436 (2d Cir. 2003).....................................................................................................16

Aurecchione v. Schoolman Transp. Sys., Inc.,

426 F.3d 635 (2d Cir. 2005).......................................................................................................7

Bad Frog Brewery, Inc. v. New York State Liquor Auth.,

134 F.3d 87 (2d Cir. 1998).......................................................................................................22

Blancette v. Conn. Gen. Ins. Corps.,

419 U.S. 102 (1974)...................................................................................................................8

Blum v. Holder,

744 F.3d 790 (1st Cir. 2014)................................................................................................9, 12

Bordell v. General Elec. Co.,

922 F.2d 1057 (2d Cir. 1991).....................................................................................................8

Brennan v. Nassau County,

352 F.3d 60 (2d Cir. 2003).......................................................................................................14

Bronx Household of Faith v. Bd. of Educ. Of City of N.Y.,

492 F.3d 89 (2d Cir. 2007).......................................................................................................14

Chavis v. New York Temporary State Com’n on Lobbying,

16 A.D.3d 886 (3d Dep’t 2005) ...............................................................................................21

City of Houston, Texas v. Hill,

482 U.S. 451 (1987).................................................................................................................22

Commission on Independent Colleges and Universities v. New York Temporary

State Commission on Regulation of Lobbying,

534 F. Supp. 489 (N.D.N.Y. 1982)............................................................................2, 4, 12, 21

Connecticut v. Duncan,

612 F.3d 107 (2d Cir. 2010).....................................................................................................17

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Connecticut v. Spellings,

453 F. Supp. 2d 491 (D. Conn. 2006)................................................................................17, 18

Dombrowski v. Pfister,

380 U.S. 479 (1965).................................................................................................................22

Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co.,

261 F.Supp.2d 293 (S.D.N.Y. 2003) .........................................................................................7

Expressions Hair Design v. Schneiderman,

808 F.3d 118 (2d Cir. 2015)...................................................................................19, 20, 22, 23

Greater New York Metropolitan Food Council v. McGuire,

6 F.3d 75 (2d Cir. 1993)...........................................................................................................19

Hawaii Housing Authority v. Midkiff,

467 U.S. 229 (1984).................................................................................................................18

Human Life of Washington Inc. v. Brumsickle,

624 F.3d 990 (9th Cir. 2010) .....................................................................................................8

Isaacs v. Bowen,

865 F.2d 468 (2d Cir. 1989).....................................................................................................16

Johnson v. District of Columbia,

71 F. Supp. 3d 155 (D.D.C. 2014) .......................................................................................9, 13

Jones v. Schniederman,

101 F. Supp. 3d 283 (S.D.N.Y. 2015) ...............................................................................10, 13

Knife Rights, Inc. v. Vance,

802 F.3d 377 (2d Cir. 2015).......................................................................................................8

LaValle v. Hayden,

773 N.E.2d 490 (N.Y. 2002)....................................................................................................21

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992)...................................................................................................................8

Makarova v. United States,

201 F.3d 110 (2d Cir. 2000).......................................................................................................8

Many Cultures, One Message v. Clements,

830 F. Supp. 2d 1111 (W.D. Wa. 2011), affirmed in part, vacated in part,

520 F. App’x 517 (9th Cir. 2013) ......................................................................................10, 13

Marchi v. Bd. of Coop. Educ. Servs. of Albany,

173 F.3d 469 (2d Cir. 1999).....................................................................................................17

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Moore v. Sims,

442 U.S. 415 (1979)...........................................................................................................18, 19

Nat’l Org. for Marriage, Inc. v. Walsh,

714 F.3d 682 (2d Cir. 2013).......................................................................................................8

Nat’l Park Hospitality Ass’n v. Dep’t of Interior,

538 U.S. 803 (2003).................................................................................................................14

New York Civil Liberties Union v. Grandeau,

528 F.3d 122 (2d Cir. 2008)...................................................................................14, 16, 17, 18

New York v. United States Army Corps. of Engineers,

896 F.Supp.2d 180 (E.D.N.Y. 2012) .......................................................................................14

Nutritional Health Alliance v. Shalala,

144 F.3d 220 (2d Cir. 1998).....................................................................................................17

Pac. Capital Bank, N.A. v. Connecticut,

542 F.3d 341 (2d Cir. 2008).......................................................................................................9

Police Conference of N.Y. v. Kreutzer,

91 A.D.2d 735 (3d Dep’t 1982) .................................................................................................4

P’ship 92 LP v. State Div. of Hous. and Cmty. Renewal,

46 A.D.3d 425 (1st Dep’t 2007) ..............................................................................................20

Railroad Commission of Tex. v. Pullman Co.,

312 U.S. 496 (1941).......................................................................................................2, 18, 19

Ramirez v. Sanchez Ramos,

438 F.3d 92 (1st Cir. 2006)........................................................................................................9

Seegars v. Gonzales,

396 F.3d 1248 (D.C. Cir. 2005) ...............................................................................................13

Simmonds v. INS,

326 F.3d 351 (2d Cir. 2003)...................................................................................14, 15, 16, 17

State Employees Bargaining Agent Coalition v. Rowland,

494 F.3d 71 (2d Cir. 2007)...................................................................................................8, 11

Tunick v. Safir,

209 F.3d 67 (2d Cir. 2000).......................................................................................................19

United States v. Fell,

360 F.3d 135 (2d Cir. 2004).....................................................................................................14

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United States v. Harriss,

347 U.S. 612 (1954)..........................................................................................................passim

Vermont Right to Life Committee v. Sorrell,

221 F.3d 376 (2d Cir. 2000).......................................................................................................9

Zuffa v. Schniederman,

15-CV-7624 (KMW), 2016 WL 311298 (S.D.N.Y. Jan. 26, 2016) ............................20, 23, 24

Statutes

42 U.S.C. § 1983..............................................................................................................................1

N.Y. Exec. Law § 94(1) ...................................................................................................................3

N.Y. Exec. Law § 94(1)-(2) .............................................................................................................5

N.Y. Legis. Law Article 1-A, § 1-a ...........................................................................................1, 11

N.Y. Legis. Law. Article 1-A, § 1-d(a)............................................................................................5

N.Y. Legis. Law. Article 1-A, § 1-d(f) ............................................................................................5

N.Y. Legis. Law Article 1-A, § 1-h(b)(3)........................................................................................4

N.Y. Legis. Law Article 1-A, § 1-h(b)(5)(i)-(ii)..............................................................................4

N.Y. Legis. Law. Article 1-A, § 1-o(a)(i) ........................................................................................4

N.Y. Legis. Law. Article 1-A, § 1-o(b) ...........................................................................................4

N.Y. Legis. Law. Article 1-A, § 1-o(b)(iv)......................................................................................4

N.Y. Legis. Law §§ 1-16 .................................................................................................................3

Other Authorities

Fed. R. Civ. P. 12(b)(1)........................................................................................................7, 11, 24

Fed. R. Civ. P. 12(b)(6)....................................................................................................................8

15 James Wm. Moore, Moore’s Federal Practice § 101.71 (3d Ed. 2003)....................................14

Lobbying Commission Op. No. 36 (82-2) (1982) .........................................................................11

Lobbying Commission Op. No. 39 (97-1) (1997) ...........................................................................4

Lobbying Commission Op. No. 44 (00-3) (2000) .....................................................................4, 11

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N.Y. Comp. Codes R. & Regs. Tit. 22, § 500.27 ..........................................................................24

Temporary Commission Opinion No. 79-1 (1979)..................................................................11, 23

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Privileged and Confidential

Attorney Work Product

PRELIMINARY STATEMENT

This is an unfounded § 1983 action in which five public relations consulting companies

seek special exemption from New York’s 35-year-old requirement that any person or entity that

conducts lobbying activities disclose their clients and their expenses in the interest of

“preserv[ing] and maintain[ing] the integrity of the governmental decision-making process in the

state.”1 Plaintiffs challenge the New York State Joint Commission on Public Ethics’s

(“JCOPE”) Advisory Opinion No. 16-01 (the “Advisory Opinion”) as arbitrary and capricious

under the New York Constitution and as an imagined violation of their First and Fourteenth

Amendment rights under the United States Constitution.

Plaintiffs claim that the Advisory Opinion transgresses the bounds set forth in United

States v. Harriss, 347 U.S. 612 (1954), by requiring public relations consultants to disclose their

conversations with the press. It does no such thing. The Advisory Opinion does not require

consultants to identify media members they contact. Nor does it require that they report the

content of their conversations. As with all other lobbying, consultants need only disclose the

client, how much the client paid, and the specific government action that the consultants

attempted to influence. No more, no less.

The Complaint is premised on a completely disingenuous reading of the Advisory

Opinion. It should be dismissed for at least three reasons. First, the Plaintiffs lack any Article

III standing whatsoever. They are challenging an Advisory Opinion that has not been enforced

against anyone, much less against them. Plaintiffs have received no specific warnings regarding

their activity, and they have not articulated any concrete plan to violate the Lobbying Act. They

1 N.Y. Legis. Law. Article 1-A (“Lobbying Act”), § 1-a.

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have not even identified areas of state policy they would like to influence. At this point their

injury is purely hypothetical.

Second, Plaintiffs’ claims are not ripe for review. The controversy in this case has not

been sharpened by a specific charge against the Plaintiffs, and the Plaintiffs have not

demonstrated they would endure any hardship in waiting for such a charge to exist. The chilling

effect they fear is based on an unreasonable interpretation of the Advisory Opinion, which in no

way requires disclosure of conversations with the media.2 Indeed, it is difficult to see how their

activities would be chilled by a disclosure regime that has operated for decades without slowing

the pace of lobbying activities in New York.3

Third, the facts of this case typify a scenario in which federal courts have traditionally

abstained under the doctrine set out in Railroad Commission of Tex. v. Pullman Co., 312 U.S.

496, 500-02 (1941). No New York court has ruled on the Advisory Opinion. If the Plaintiffs’

reading of the Advisory Opinion were taken at face value, it would raise an unsettled question of

state law. The federal question—whether New York’s Lobbying Act, as interpreted by the

Advisory Opinion, violates the First and Fourteenth Amendments to the United States

Constitution—depends on the resolution of that state law question. It is plainly possible for a

New York court to construe the Lobbying Act in a way that avoids the federal question because

that is how the statute has been interpreted for over thirty years.

In Commission on Independent Colleges and Universities v. New York Temporary State

Commission on Regulation of Lobbying (“CICU”), a federal district court cited the New York

legislature’s manifest intent to follow Harriss and the absence of contrary enforcement actions as

evidence that the Lobbying Act could be interpreted to fit within Constitutional limits. 534 F.

2 See infra note 12 and accompanying text.3 See Declaration of Thomas Patrick Lane (“Lane Decl.”) Exh. 3, at 7, 29 (showing that lobbying spending has

increased from 1992-2015 and reached a record high in 2015).

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Supp. 489, 497 (N.D.N.Y. 1982). No textual change has rendered that interpretation

implausible. If, as the Plaintiffs suggest, the Advisory Opinion expands the Lobbying Act

beyond Harriss and into a constitutional gray area, then a New York court is perfectly capable of

narrowing or rejecting the Advisory Opinion’s construction of the Lobbying Act, thus mooting

the federal question.

STATEMENT OF FACTS

I. NEW YORK LOBBYING REGULATION HISTORY

New York state regulation of lobbying dates back to the 1977 “Regulation of Lobbying

Act,” which governed:

attempts to influence the passage or defeat of any legislation by either house of

the legislature or the approval or disapproval of any legislation by the governor,

or the adoption or rejection of any rule or regulation having the force and effect of

law or the outcome of any rate making proceeding by a state agency.

N.Y. Legis. Law §§ 1-16. The Act created the first iteration of New York’s lobbying regulatory

body, the Temporary Commission on the Regulation of Lobbying (the “Commission”),4 to

interpret and enforce its provisions.

In 1979, the Commission issued Opinion No. 21 defining “lobbying activity” under state

law as direct, verbal, written, or printed communication with legislators, including “contacts with

those staff members of the decision maker to whom authority to decide has been delegated and to

those staff members upon whom the decision maker relies for informed recommendations on

matters under consideration.” The Commission stated it was acting to “conform with Federal

case law” on lobbying regulations—meaning United States v. Harriss, 347 U.S. 612 (1953), in

which the Court upheld the Federal Regulation of Lobbying Act against First Amendment

4 The Temporary Commission was reconstituted under the 1981 Lobbying Act and continued until its merger into

the Commission on Public Integrity in 2007. In 2011, New York replaced the Commission on Public Integrity with

JCOPE. Lane Decl. Exh. 1 (“Advisory Opinion”), at 3. JCOPE’s creation did not “revoke[] or rescind[] any

regulations or advisory opinions issued by the . . . commission on public integrity . . . [or] the temporary lobbying

commission.” N.Y. Exec. Law § 94(1).

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challenge, 347 U.S. at 620-26. The Court held that the First Amendment did not prohibit

regulation of “direct pressures exerted by lobbyists themselves” and indirect pressure via

exhortations to the public. Id. at 620.

In 1981, New York replaced the Regulation of Lobbying Act with the Lobbying Act that

operates today.5 Under the Lobbying Act, “lobbying . . . occurs when the activity in question

relates to pending legislation, a position is stated, and the activity is an attempt to influence

decision makers.” Lobbying Commission Op. No. 44 (00-3) (2000). Lobbyists must register

themselves and report, among other things, their clients, their compensation and expenses, and

the subject matters on which they lobby. See Lobbying Act §§ 1-h(b)(3), 1-h(b)(5)(i)-(ii). This

is true whether the lobbying involves direct contact with public officials (“direct lobbying”) or

indirect calls to action such as letter-writing campaigns (“grassroots lobbying”). Lobbying

Commission Op. No. 39 (97-1) (1997).6

Just one year after enactment, a federal district court for the Northern District of New

York upheld the constitutionality of the Lobbying Act in CICU. 534 F. Supp. at 497. The court

noted that the Commission had already committed in Advisory Opinion 21 to applying the

Lobbying Act within Harriss’s guidelines. Id. at 497. Absent evidence the Commission had

strayed from that commitment, the court would not strain to strike down the law based on

plaintiffs’ fears of overbreadth. Id. at 497.

5 Police Conference of N.Y. v. Kreutzer, 91 A.D.2d 735, 735 n.* (3d Dep’t 1982) (“Although chapter 937 of the

Laws of 1977 was repealed by chapter 1040 of the Laws of 1981, chapter 1040 of the Laws of 1981 carries forward

the relevant provisions of the Lobbying Act relating to the definition of lobbying and the reporting and registration

requirements contained therein. This re-enactment indicates an uninterrupted application of the provisions relevant

to plaintiff.”).6 Knowing and willful violation of these requirements is a class A misdemeanor and may result in a fine. Lobbying

Act §§1-o(a)(i), 1-o(b). Repeat offenders face stiffer penalties, including possible prohibition from lobbying

activities. See, e.g., id. at § 1-o(b)(iv).

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Since that time, the Commission and its successors have continued to interpret and

enforce the Lobbying Act. None of their actions have been held to violate Harriss or any other

legal authority.

II. THE ADVISORY OPINION

JCOPE is the current iteration of New York’s lobbying regulation agency.7 It consists of

fourteen appointed commissioners.8 Collectively, these commissioners are empowered to

“administer and enforce all the provisions” of the Lobbying Act, including by “issu[ing] advisory

opinions to those under its jurisdiction . . . which . . . shall not be binding upon such commission

except with respect to the person to whom such opinion is rendered.”9

On January 26, 2015, JCOPE, after eight months of extensive outreach, public comments,

and revisions, issued the Advisory Opinion. The Advisory Opinion advises on, among other

things, the Lobbying Act’s application to consultants who “attempt . . . to induce a third-party—

whether the public or the press—to deliver the client’s lobbying message to a public official.”

Advisory Opinion at 9. This application of the Lobbying Act to consultants reflected the

common sense view that not all lobbying activity is performed by people who call themselves

lobbyists.10

The Advisory Opinion did not subject public relations consultants to restrictive or

unprecedented reporting requirements. It informed them that they were responsible for the same

disclosures as other lobbyists with respect to direct and grassroots lobbying activities.11 “To be

clear, consultants should not be barred from [communicating with or facilitating access to public

7 See supra note 4.8 N.Y. Exec. Law § 94(1)-(2). 9 Lobbying Act §§ 1-d(a), 1-d(f).10 Cf. Lane Decl. Exh. 4, at 2 (praising the proposed Advisory Opinion for adopting the “common sense” advice that

“the obligation to report does not depend on whether one calls oneself a lobbyist”).11 The Advisory Opinion’s discussion of what constitutes lobbying activities simply “affirms while clarifying” a

prior opinion finding a grassroots campaign is reportable lobbying when the “lobbyist” controlled the delivery of the

message and had input into its content. Advisory Opinion at 8.

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officials]; but, at the same time, these transactions should merit that ‘modicum of information

from those who for hire attempt to influence legislation’ that the Supreme Court called for in

Harriss.” Advisory Opinion at 6-7.

JCOPE subsequently issued a Frequently Asked Questions (“FAQ”) form to clarify the

Advisory Opinion’s application. The FAQ states, with regard to registration requirements:

A consultant who communicates with the media does not, generally, have to register as a

lobbyist. “However, if a paid consultant ‘controls the delivery’ of [a client’s] message by

encouraging an editorial board to support a position on a specific government action . . .

then the consultant may need to register . . . .” A consultant who responds to a reporter’s inquiry on behalf of a client does not have to

register. Reporters who seek information from consultants do not have to register. “Journalists are

not lobbyists.” 12

The FAQ is emphatic that consultants need not identify their media contacts nor disclose the

content of their conversations with the media:

If a consultant is required to register as a lobbyist, does the consultant have

to disclose every communication it has with a media outlet?

No. Consultants are not required to report individual interactions with members of

the media, or identify media outlets with whom they have spoken.

Does a consultant need to disclose the content of communications with media

outlets under the Lobbying Act or this Advisory Opinion?

No. The content of communications does not need to be disclosed. Although the

consultant must file a bi-monthly report with the commission, the consultant must

only disclose the client, how much the client paid, and the specific government

action (e.g., the bill number) that he or she attempted to influence. The consultant

does not need to disclose the content or details of specific communications with

reporters or others.13

To date, JCOPE has not enforced the Advisory Opinion against anyone. Nor has it

threatened the Plaintiffs, or anyone else, with prosecution. Nonetheless, Plaintiffs assert that the

Advisory Opinion requires them to “report their press communications to the Commission[,]”

12 Lane Decl. Exh. 2 (“JCOPE FAQ”), at 2.13 Id.

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“reveal every communication [with reporters,]” and “disclose confidential sources” (Compl. ¶¶

1, 45, 48). It does no such thing.

III. PROCEDURAL HISTORY

Plaintiffs filed this suit on March 8, 2016. The Complaint named JCOPE and each of its

individual commissioners, in their official capacities, as Defendants. By stipulated order entered

April 21, 2016, the Court dismissed the individual Defendants from the action.14

ARGUMENT

The Plaintiffs’ Complaint relies on a bizarre and baseless reading of the Advisory

Opinion. It is unsupported by any concrete threat or enforcement action, and the Plaintiffs bring

this challenge without waiting for a New York court to consider this state regulatory issue. Any

declaratory judgment issued by this Court would be, in effect, advisory. The Court should

dismiss the Complaint because the Plaintiffs lack Article III standing and their claims are not

ripe for adjudication. In the alternative, the Court should abstain from deciding this case until a

New York state court has interpreted the Advisory Opinion.

IV. THE COMPLAINT SHOULD BE DISMISSED BECAUSE THE PLAINTIFFS

LACK STANDING AND THEIR CLAIMS ARE NOT RIPE FOR REVIEW

A. Standard of Review

Motions to dismiss for lack of standing or ripeness go to the court’s subject matter

jurisdiction and are therefore made under Rule 12(b)(1). See Alliance for Envtl. Renewal, Inc. v.

Pyramid Crossgates Co., 436 F.3d 82, 88 n.6 (2d Cir. 2006) (standing); Duane Reade, Inc. v. St.

Paul Fire & Marine Ins. Co., 261 F. Supp. 2d 293, 294 (S.D.N.Y. 2003) (ripeness). On a Rule

12(b)(1) motion, the plaintiff bears the burden of proving subject matter jurisdiction by a

preponderance of the evidence. Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638

14 Stipulation and Order dated April 21, 2016, The November Team, Inc. v. New York Joint Commission on Public

Ethics, 16-CV-1739 (LGS), ECF No. 21.

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(2d Cir. 2005); Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Unlike on a Rule

12(b)(6) motion, the Court may resolve factual disputes by reference to evidence outside the

pleadings. State Employees Bargaining Agent Coalition v. Rowland, 494 F.3d 71, 77 n.4 (2d Cir.

2007); Makarova, 201 F.3d at 113.

B. Plaintiffs Lack Article III Standing Because They Have Suffered No Injury

In Fact

Article III requires, among other things, that litigants in the federal courts demonstrate

they have suffered an injury in fact—“an invasion of a legally protected interest which is (a)

concrete and particularized . . .; and (b) actual or imminent, not conjectural or hypothetical.”

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (quotation marks and citations

omitted); Nat’l Org. for Marriage, Inc. v. Walsh, 714 F.3d 682, 688 (2d Cir. 2013). While

“[o]ne does not have to await the consummation of threatened injury to obtain preventive

relief[,]” Blancette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 143 (1974), “[i]n the context of pre-

enforcement constitutional challenges, where the plaintiff has not yet been penalized for

violating the challenged statute, neither the mere existence of a proscriptive statute nor a

generalized threat of prosecution satisfies the ‘case or controversy’ requirement[,]” Human Life

of Washington Inc. v. Brumsickle, 624 F.3d 990, 1000 (9th Cir. 2010). There must be a credible

threat of prosecution. Knife Rights, Inc. v. Vance, 802 F.3d 377, 384 (2d Cir. 2015).

Even pre-enforcement First Amendment claims, which are assessed under “somewhat

relaxed” rules, require plaintiffs to “proffer some objective evidence to substantiate [the] claim

that the challenged statutory provision has deterred [them] from engaging in protected activity.”

Bordell v. Gen. Elec. Co., 922 F.2d 1057, 1061 (2d Cir. 1991). There must be a “real and

imminent fear.” Nat’l Org. for Marriage, 714 F.3d at 689. Whether an actual, well-founded fear

exists is necessarily a case-specific issue. Knife Rights, Inc. v. Vance, 802 F.3d at 384. But in

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examining the existence of a credible threat, courts ask, among other things, whether the

plaintiff’s interpretation of a statute is “reasonable enough” that the plaintiff “may legitimately

fear that it will face enforcement.” See Pac. Capital Bank, N.A. v. Connecticut, 542 F.3d 341,

350 (2d Cir. 2008) (quoting Vermont Right to Life Comm. v. Sorrell, 221 F.3d 376, 383 (2d Cir.

2000)).

Courts regularly dismiss claims where the plaintiffs’ alleged injury depends on an

unreasonable statutory construction. See, e.g., Johnson v. District of Columbia, 71 F. Supp. 3d

155, 162 (D.D.C. 2014) (finding plaintiff lacked standing where the Government had never

enforced the statute as plaintiff feared, had never threatened to enforce it, and had stated its belief

that the statute did not proscribe the plaintiff’s conduct); Blum v. Holder, 744 F.3d 790, 803 (1st

Cir. 2014) (holding plaintiffs could not establish Article III standing based on statutory

construction the Government had explicitly rejected); Ramirez v. Sanchez Ramos, 438 F.3d 92,

99 (1st Cir. 2006) (holding plaintiff could not establish Article III standing based on an

overbroad reading of the Riot Act).

In Blum v. Holder, the plaintiffs argued that a section of the Animal Enterprise Terrorism

Act (“AETA”) criminalized expressive activity that intentionally caused an animal enterprise to

lose profits. 744 F.3d at 800. But the plaintiffs’ interpretations were inconsistent with textual

limitations and legislative history evincing Congress’s desire to protect expressive conduct, so

the court dismissed their claims for lack of standing: “[P]laintiffs’ fear of prosecution under

AETA is based on speculation that the Government will enforce the Act pursuant to

interpretations it has never adopted and now explicitly rejects. Such unsubstantiated and

speculative fear is not a basis for standing under Article III.” Id. at 800-03.

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Even where a plaintiff’s interpretation of a statute is plausible, the plaintiff must establish

that she intends to engage in conduct that would arguably violate the statute. In Jones v.

Schniederman, a federal district court found that several mixed martial arts promoters lacked

standing to challenge New York’s combative sports ban because at the time they filed their

complaint, they had no concrete plans to organize banned activities, and no official responsible

for enforcing the statute had communicated a specific warning regarding plaintiffs’ hypothetical

activities. 101 F. Supp. 3d 283, 294-95 (S.D.N.Y. 2015).

In Many Cultures, One Message v. Clements, a federal district court found that two non-

profit political organizations lacked standing to challenge Washington state’s lobbying law

because neither had articulated a concrete plan to violate the law or shown through its history

with the enforcement body that it would certainly be injured by the statute. 830 F. Supp. 2d

1111, 1150-52 (W.D. Wa. 2011), affirmed in part, vacated in part, 520 F. App’x 517 (9th Cir.

2013); see also Many Cultures, One Message v. Clements, 520 F. App’x at 519 (“Neither party

here has standing to challenge the constitutionality of the Washington grassroots lobbying law

because neither has demonstrated that it actually intends to undertake activities that come within

the scope of the challenged statute.”). One plaintiff had not even identified specific areas of state

policy advocacy in which it wished to engage. Many Cultures, One Message, 520 F. App’x at

519.

Here, the Plaintiffs cannot establish a credible fear of prosecution because their reading

of the Advisory Opinion is unreasonable, and they have articulated no concrete plans that would

place them in violation of the Lobbying Act.

1. The Plaintiffs’ Reading of the Advisory Opinion Is Unreasonable

The Plaintiffs are attacking an imaginary version of the Advisory Opinion. Nothing in

the text of the Advisory Opinion or the Lobbying Act suggests that consultants must disclose the

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identities of reporters they contact or the content of their conversations with those reporters. As

JCOPE’s FAQ states, consultants need only disclose the same things as any other lobbyists: “the

client, how much the client paid, and the specific government action (e.g., the bill number) that

he or she attempted to influence.”15 These disclosures are a key part of “preserv[ing] and

maintain[ing] the integrity of the governmental decision-making process in the state.”16 They

are, in the Supreme Court’s words, a “modicum of information . . . plainly within the area of

[legislative] power and . . . designed to safeguard a vital national interest.” Harriss, 347 U.S. at

625. The Plaintiffs are jumping at shadows and demanding that the Court put out an essential

light source on legislative integrity.

Contrary to the Plaintiffs’ hyperbolic reading, the Advisory Opinion is a common-sense

application of long-standing New York regulatory policy. Plaintiffs’ attempts to send lobbying

messages through the press may not have been subject to any reporting requirements previously,

but the conduct clearly falls within the definition of lobbying that the Commission has applied

for decades. See, e.g., Lobbying Commission Op. No. 44 (00-3) (2000) (“[L]obbying . . . occurs

when the activity in question relates to pending legislation, a position is stated, and the activity is

an attempt to influence decision makers. . . . Direct contact is not required.”); Lobbying

Commission Op. No. 36 (82-2) (1982) (finding advertisements, fliers, pamphlets, and similar

documents, as well as messages broadcast over radio or television, which are addressed to

specific legislation and which urge the public to contact legislators constitute “lobbying

activity”). And the Advisory Opinion’s reporting requirements—who paid, how much, and for

what—are the same as New York has imposed for as long as it has regulated lobbying. See

Temporary Commission Opinion No. 79-1 (1979).

15 JCOPE FAQ, at 2. As explained above, on a Rule 12(b)(1) Motion, the Court may resolve factual disputes by

reference to evidence outside the pleadings. State Employees Bargaining Agent Coalition, 494 F.3d at 77 n.4.16 Lobbying Act § 1-a.

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What the Plaintiffs are really asking for is a special exemption from a statute that has

long guarded the integrity of the legislative process. But the obligation to report does not depend

on what one calls oneself.17 There is nothing special about the title “consultant” that places the

Plaintiffs outside the Lobbying Act’s regulations—regulations that have long been approved as

constitutional. See CICU, 534 F. Supp. at 497. To allow an entity engaged in lobbying to escape

public scrutiny merely by changing its title to “consultant” would elevate form over substance

and hollow out an important safeguard against corruption in the legislative process.

Read objectively, the Advisory Opinion does not threaten to expose media contacts and

conversations but merely applies important, Supreme Court approved reporting requirements to

all those who engage in lobbying activities, whether they call themselves lobbyists or not. The

Plaintiffs’ interpretation—ungrounded in the Advisory Opinion’s text—is clearly unreasonable

and so cannot form the basis for a credible fear of prosecution. The Plaintiffs are simply

speculating that JCOPE will enforce the Lobbying Act pursuant to interpretations it has never

adopted and explicitly rejects. Such unsubstantiated and speculative fear is not a basis for

standing under Article III. Blum v. Holder, 744 F.3d at 803.

2. The Plaintiffs Offer No Objective Evidence That They Face Prosecution

Given the completely speculative nature of their fears, it is unsurprising that the Plaintiffs

have proffered no evidence that the Advisory Opinion has chilled their protected activities.

There is no allegation that JCOPE has enforced the Advisory Opinion against consultants who

fail to report the content or details of their conversations with the press.18 Nor is there any

allegation that JCOPE has specifically threatened the Plaintiffs—or any other consultants—for

any such failure to report. The absence of a specific threat is often fatal to plaintiffs’ standing.

17 See supra note 10 and accompanying text.18 Such an allegation would be baseless, given that the Advisory Opinion does not require those disclosures.

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See Johnson, 71 F. Supp. 3d at 160 (“[C]ourts often find the absence of a specific threat fatal.”

(citing Seegars v. Gonzales, 396 F.3d 1248, 1252 (D.C. Cir. 2005))). It was fatal in Jones v.

Schneiderman, which concerned the chilling effect of an outright ban on mixed martial arts

(“MMA”) events. 101 F. Supp. 3d at 294 (“There is no evidence that the [Office of the Attorney

General] contacted [the plaintiff] about its involvement with sanctioned professional MMA

before this action began—indeed, the record indicates that the [Office of the Attorney General]

never warned anyone that the Ban would prohibit sanctioned professional MMA.”). It is still

more deadly here, where the regulation—reporting, not an outright ban—is milder and the

chilling threat correspondingly less severe.

Moreover, the Plaintiffs have articulated no concrete plan that would place them in

violation of the Lobbying Act. They have not even identified specific areas of state policy they

would like to influence. See Many Cultures, One Message, 520 F. App’x at 519 (“Conservative

Enthusiasts has not provided evidence of concrete plans to pursue activities that qualify as . . .

lobbying under the statute, nor has it even identified specific areas of state policy advocacy in

which it would like to engage.”). They are, at best, several steps removed from the “real and

immediate” injury that Article III requires.

The Plaintiffs bring this case based on a flatly-contradicted reading of the Advisory

Opinion, with no evidence whatsoever that they face imminent prosecution. Their fanciful

reading of the opinion renders any fear of injury purely hypothetical. The absence of specific

threats or a concrete plan to violate the Lobbying Act leaves the Court to conjecture whether the

Plaintiffs might, at some point, face enforcement under the statute. Because they have suffered

no injury in fact or reality, the Plaintiffs lack Article III standing and cannot meet their burden of

showing this Court has jurisdiction over the case.

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C. The Plaintiffs’ Claims Are Not Ripe For Adjudication

“The ripeness doctrine is drawn both from Article III limitations on judicial power and

from prudential reasons for refusing to exercise jurisdiction.” Nat’l Park Hospitality Ass’n v.

Dep’t of Interior, 538 U.S. 803, 808 (2003) (quotation marks and citation omitted). “A central

purpose of this doctrine ‘is to prevent the courts, through avoidance of premature adjudication,

from entangling themselves in abstract disagreements over administrative policies.’” New York

Civil Liberties Union v. Grandeau, 528 F.3d 122, 130-31 (2d Cir. 2008) (Sotomayor, J.) (quoting

Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967), overruled on other grounds by Califano v.

Sanders, 430 U.S. 99, 105 (1977)). Ripeness principles “bear heightened importance when . . .

the potentially unripe question presented for review is a constitutional question.” Bronx

Household of Faith v. Bd. of Educ. Of City of N.Y., 492 F.3d 89, 114 (2d Cir. 2007) (Leval, J.,

concurring).

1. The Plaintiffs’ Claims are Not Constitutionally Ripe Because Their Injuries are Speculative and Conjectural

Constitutional ripeness is a limitation on the power of the judiciary. It “prevents courts

from declaring the meaning of the law in a vacuum and from constructing generalized legal rules

unless the resolution of an actual dispute requires it.” Simmonds v. INS, 326 F.3d 351, 357 (2d

Cir. 2003). In this sense it overlaps with constitutional injury-in-fact analysis, and “a plaintiff

that can assert an injury-in-fact will usually have a constitutionally ripe claim.” New York v.

United States Army Corps. of Engineers, 896 F. Supp. 2d 180, 195 (E.D.N.Y. 2012) (citing

Simmonds, 326 F.3d at 358). Conversely, if a plaintiff has not yet suffered a concrete injury-in-

fact, as here, her suit “could also be said to suffer from a lack of ripeness.” Brennan v. Nassau

County, 352 F.3d 60, 65 n.9 (2d Cir. 2003) (quoting 15 James Wm. Moore, Moore’s Federal

Practice § 101.71 (3d Ed. 2003)); see also United States v. Fell, 360 F.3d 135, 139 (2d Cir. 2004)

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(“At the core of the ripeness doctrine is the necessity of ensur[ing] that a dispute has generated

injury significant enough to satisfy the case or controversy requirement of Article III of the U.S.

Constitution.” (internal quotation marks omitted; brackets in original)).

Here, the Plaintiffs’ claims are unripe for the same reasons they lack an injury-in-fact.

They are seeking a declaration on a law that the enforcing body does not interpret as they fear

and has not enforced—or threatened to enforce—against anyone in the manner the Plaintiffs

claim. There is no mature dispute between the parties. At this point, the Court would simply be

entangling itself in an abstract disagreement over a hypothetical administrative action. The

Court should therefore dismiss the Complaint as constitutionally unripe.

2. The Plaintiffs’ Claims Are Not Prudentially Ripe Because They Are Contingent On Positions JCOPE Has Rejected and the Plaintiffs Would Suffer No Harm If the Court Awaited a Single Inquiry or Enforcement Action to Sharpen the Issues

“Prudential ripeness is . . . a tool that courts may use to enhance the accuracy of their

decisions and to avoid becoming embroiled in adjudications that may later turn out to be

unnecessary or may require premature examination of, especially, constitutional issues that time

may make easier or less controversial.” Simmonds, 326 F.3d at 357. “[W]hen a court declares

that a case is not prudentially ripe, it means that the case will be better decided later and that the

parties will not have constitutional rights undermined by the delay.” Id. (emphasis in original).

As such, there are two prongs to the prudential ripeness inquiry: first, the court asks whether the

issue is fit for judicial decision (the “fitness” prong); second, the court asks whether and to what

extent the parties will endure hardship if decision is withheld (the “hardship” prong). Id. at 359

(citing Abbott Labs., 387 U.S. at 148–49).

The fitness analysis depends in large part on a matter’s factual development. It “is

concerned with whether the issues sought to be adjudicated are contingent on future events or

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may never occur.” Isaacs v. Bowen, 865 F.2d 468, 478 (2d Cir. 1989). In Simmonds,

uncertainty about whether or when the plaintiff would be detained by the INS “reduce[d] the

adjudicative fitness” of his claims. 326 F.3d at 360; see also American Sav. Bank, FSB v. UBS

Fin. Servs, Inc., 347 F.3d 436, 440 (2d Cir. 2003) (per curiam) (dismissing a company’s motion

to enforce subpoenas served on a broker’s former employees because (a) the plaintiff had not

exhausted its administrative remedies; (b) judicial review would “only benefit by awaiting [the

agency]’s views” of how best to interpret its own regulations; and (c) it would be unwise to

“prematurely address[ ] the novel issues of first impression”).

In New York Civil Liberties Union v. Grandeau, plaintiffs challenged the Commission’s

inquiry into lobbying expenses in connection with a billboard advertisement. 528 F.3d at 126.

Two days after the complaint was filed, the Commission withdrew its inquiry and stated that

plaintiffs had no reporting requirements with respect to the billboard. Id. at 127. The plaintiffs

maintained their suit, hoping for a broader ruling that the billboard was not lobbying activity. Id.

The Commission’s counsel followed up with a letter clarifying that the Commission’s position

“ha[d] never been that the billboard in and of itself constitute[d] lobbying, but rather, its use as

part of a lobbying campaign would make the cost of the billboard a reportable lobbying expense

if paid for by a registered lobbyist.” Id. In court, the Commission contended that “even if [the

court] read the complaint to challenge a policy of targeting non-lobbying advocacy efforts for

reporting and investigation, the alleged policy ha[d] not been adopted by the Commission, let

alone enforced against the NYCLU or anyone else.” Id. at 130 (internal quotation marks

omitted).

The Court of Appeals held that although the plaintiffs possessed Article III standing, the

challenge was unfit for review because “a court cannot coherently rule on a policy’s

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constitutionality where . . . it is at best unclear to what extent an agency has actually adopted a

policy or how stringently the agency will enforce it.” Id. (internal quotation marks omitted). In

the court’s view, the case “would certainly benefit from additional factual development and is in

many ways contingent on future events, such as an inquiry by the Commission into activity that

the [plaintiffs] deem[] non-lobbying advocacy.” Id. at 133.

The fact that an agency has issued a formal opinion does not, by itself, render associated

legal issues ripe for adjudication. In Connecticut v. Spellings, plaintiffs challenged the Secretary

of Education’s interpretation of the No Child Left Behind Act’s “Unfunded Mandates”

provision. 453 F. Supp. 2d 459 (D. Conn. 2006), affirmed by Connecticut v. Duncan, 612 F.3d

107 (2d Cir. 2010). A federal district court found the claim was not constitutionally ripe because

even if the Secretary of Education’s statements on the subject constituted “final agency action”

and presented a purely legal question, “consideration of the underlying legal issues would

necessarily be facilitated if they were raised in the context of a specific attempt to apply and/or

enforce the regulation.” Id. at 491 (quoting Nutritional Health Alliance v. Shalala, 144 F.3d 220,

225 (2d Cir. 1998) (internal quotation marks omitted)).

The second step in the ripeness analysis, the hardship prong, turns on “whether the

challenged action creates a direct and immediate dilemma for the parties.” Marchi v. Bd. of

Coop. Educ. Servs. of Albany, 173 F.3d 469, 478 (2d Cir. 1999). “The mere possibility of future

injury, unless it is the cause of some present detriment, does not constitute hardship.” Simmonds,

326 F.3d at 360. The hardship standard is relaxed somewhat in the First Amendment context “to

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avoid the chilling of protected speech,” but “some credible fear of enforcement must exist.”

Marchi, 173 F.3d at 479.19

Here, even if the Plaintiffs could establish an injury-in-fact, their claims would remain

prudentially unripe for review. As in Grandeau, the Plaintiffs are challenging an imagined and

baseless version of administrative policy, and “it is at best unclear to what extent an agency has

actually adopted [that] policy or how stringently the agency will enforce it.” 528 F.3d at 130.

There is no live inquiry into the Plaintiffs’ activities or specific attempt to enforce the Advisory

Opinion that would sharpen the issues for review. See Connecticut v. Spellings, 453 F. Supp. 2d

at 491. Nor is there any evidence that the Plaintiffs would suffer hardship if the Court waited for

such an enforcement action to take on the potential constitutional questions. The Plaintiffs are

asking the Court to declare the Advisory Opinion unconstitutional based on conjecture about

what JCOPE might do (ignoring what JCOPE itself has said about its intentions).

Because the Plaintiffs’ claims are neither constitutionally nor prudentially ripe for review,

the Court should grant JCOPE’s motion and dismiss the Complaint.

V. THE COURT SHOULD ABSTAIN FROM REACHING THE PLAINTIFFS’

FEDERAL CLAIMS BECAUSE THEY TURN ON THE INTERPRETATION OF

A STATE REGULATION AND A STATE COURT DECISION COULD MOOT

THE FEDERAL QUESTIONS AND SO RENDER THIS COURT’S OPINION

ADVISORY

Even if this Court were to find that the Plaintiffs possess Article III standing, which they

do not, and that their claims are ripe for review, which they are not, it should abstain from

deciding the case under the doctrine set out in Railroad Commission of Tex. v. Pullman Co., 312

U.S. 496, 500 (1941). Pullman abstention is appropriate “when difficult and unsettled questions

of state law must be resolved before a substantial federal question can be decided.” Hawaii

19 In Marchi, the plaintiff failed to demonstrate hardship where the challenged directive had not yet been applied to

his activities. Id.

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Hous. Auth. v. Midkiff, 467 U.S. 229, 236 (1984).20 As the Second Circuit recently explained,

“[i]f a state statute is susceptible of multiple interpretations, one of which might render it

overbroad and another of which would not, Pullman’s logic suggests that the state courts—if

they have not definitively construed the statute already—should be afforded the opportunity to

adopt the narrower, less problematic interpretation.” Expressions Hair Design v. Schneiderman,

808 F.3d 118, 138 (2d Cir. 2015) (citing Tunick v. Safir, 209 F.3d 67, 75-76 (2d Cir. 2000)

(Calabresi, J.) (noting that state courts typically apply some version of the rule that a statute

should be interpreted, if possible, so as to avoid constitutional doubts)).21

Three conditions are necessary for a court to abstain under Pullman: (1) there must be an

unsettled question of state law, (2) resolution of the federal issue must depend on the

interpretation of state law, and (3) the state law must be susceptible to an interpretation by a state

court that would avoid or modify the federal constitutional issue. Greater New York

Metropolitan Food Council v. McGuire, 6 F.3d 75, 77 (2d Cir. 1993).

In Expressions Hair Design, five New York businesses and their owners challenged a

New York law prohibiting vendors from imposing a surcharge on payments by credit card. 808

F.3d at 121. Part of the challenge assumed that the law applied even where sellers posted

separate prices for credit card payments, rather than a single sticker price with a surcharge. Id. at

135. But it was not clear whether the statute actually applied in such circumstances. Id. at 137.

No New York appellate court had interpreted the law’s scope. Id. at 137.

20 The Supreme Court has identified three constitutional considerations behind this exception to federal courts’

general obligation to exercise jurisdiction where they have it. The first two focus on the federal courts’ obligation to

decide only “concrete cases or controversies” and the danger of issuing an advisory opinion. Moore v. Sims, 442

U.S. 415, 428-29 (1979) (“[A] constitutional determination . . . predicated on a reading of [a state] statute that is not

binding on state courts . . . may be discredited at any time—thus essentially rendering the federal-court decision

advisory and the litigation underlying it meaningless.”). The third consideration reflects the broader concern that

needless obstruction of states’ domestic policies undermines “our federal system of government.” Id.21 See also id. at 137 (“When anticipatory relief is sought in federal court against a state statute, respect for the place

of the states in our federal system calls for close consideration of whether a ruling on the constitutionality of the

state law is, in fact, necessary.”).

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In reviewing the challenge, the United States Court of Appeals for the Second Circuit

noted the federal courts’ long reliance on Pullman principles in handling First Amendment

overbreadth suits: “[F]ederal courts have consistently reaffirmed that in considering an

overbreadth challenge to a state statute, we must presume that the state courts will give the law a

narrow construction so long as the law is readily susceptible to that construction.” Id. at 138

(quotation marks and citations omitted). Because New York’s surcharge prohibition could be

saved from Constitutional doubt by interpreting it to function identically to its federal

predecessor statute, the court abstained under Pullman. Id. at 139. The court explained: “we

cannot hold a duly enacted state law unconstitutional based entirely on speculation that the New

York courts might give it an expansive and arguably problematic reading that its text does not

require.”

In Zuffa v. Schniederman, a federal district court for the Southern District of New York

abstained from being first to interpret New York’s combative sports law. 15-CV-7624 (KMW)

2016 WL 311298, at *6 (S.D.N.Y. Jan. 26, 2016). It found that the meaning of the statute was

unsettled, as evidenced by the enforcing agency’s history of shifting interpretations, and New

York state courts could construe the statute in a way that mooted all federal questions in the case.

Id. The court concluded, moreover, that delay would not chill the plaintiffs’ expression because

the statute did not prevent the plaintiffs from engaging in any protected conduct. Id.

All three conditions for Pullman abstention are present in this case. First, no New York

state court has ruled on the Advisory Opinion’s interpretation of the Lobbying Act. Second, the

resolution of the Plaintiffs’ Constitutional claims depends on interpretation of state law: initially,

the Advisory Opinion and, conditionally, the Lobbying Act. Third, the state laws are susceptible

of interpretations that would avoid the federal question.

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A. Deference to JCOPE’s Interpretation Would Moot The Federal Question

If a New York court were permitted to interpret the Advisory Opinion, it could defer to

JCOPE’s own interpretation of its Advisory Opinion. See P’ship 92 LP v. State Div. of Hous.

and Cmty. Renewal, 46 A.D.3d 425, 429 (1st Dep’t 2007) (“[I]t is . . . well settled that an

agency’s interpretation of the statutes and regulations it is responsible for administering is

entitled to great deference, and must be upheld if reasonable.” (citations omitted)). JCOPE’s

interpretation of the statute’s requirements—in this case disclosure of clients, payments, and

targeted legislation—has already been cleared of constitutional doubt. CICU , 534 F. Supp. at

497. Deferring to JCOPE’s reading would therefore moot the federal issue presented by the

Plaintiffs’ erroneous reading of the statute.

B. If a New York Court Considered the Advisory Opinion Potentially

Overbroad, It Would Construe the Opinion to Save It

Even if the Court were to accept the Plaintiffs’ reading of the Advisory Opinion, the law

that is ultimately being challenged here—New York’s Lobbying Act—would remain susceptible

to an interpretation that raises no federal issues. CICU approved the Lobbying Act as

conforming to Harriss’s guidelines over thirty years ago. 534 F. Supp. at 497. Although the

text of the Lobbying Act and the Commission’s interpretations have evolved since then, the basic

regulations and requirements still conform to Harriss, and it remains the case that the

Commission has no history of transgressing Harriss’s bounds. If, as the Plaintiffs suggest, the

Advisory Opinion expands the Lobbying Act beyond Harriss and into a constitutional gray area,

then a New York court is perfectly capable of narrowing or rejecting the Advisory Opinion’s

gloss on the Lobbying Act, thus mooting the federal question.

Under New York law, “[l]egislative enactments enjoy a strong presumption of

constitutionality . . . [and] courts must avoid, if possible, interpreting a presumptively valid

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statute in a way that will needlessly render it unconstitutional.” Chavis v. New York Temp. State

Comm’n on Lobbying, 16 A.D.3d 886, 887 (3d Dep’t 2005) (quoting LaValle v. Hayden, 773

N.E.2d 490, 494 (N.Y. 2002)). Therefore, a New York court would apply a strong presumption

that the correct interpretation of the Lobbying Act is one that does not raise constitutional

problems under Harriss or under the New York constitution.

C. The Court Should Abstain Under Pullman

In sum, however the Advisory Opinion is read, principles of statutory interpretation will

favor avoiding a constitutional issue. JCOPE’s reasonable interpretation of the statute—

embodied in the text of the Advisory Opinion and the explanatory FAQ—is entitled to deference.

This would moot the Plaintiffs’ First Amendment allegations. But if a New York court were

somehow persuaded by the Plaintiffs’ reading of the Advisory Opinion, then that court would be

bound to favor the settled interpretation of the Lobbying Act over a potentially unconstitutional

alternative.

It is true that, as a general matter, abstention is disfavored in cases involving facial

challenges based on the First Amendment, City of Houston, Texas v. Hill, 482 U.S. 451, 467

(1987); see also Dombrowski v. Pfister, 380 U.S. 479, 489–490 (1965) (“[A]bstention . . . is

inappropriate for cases [where] . . . statutes are justifiably attacked on their face as abridging free

expression.” (emphasis added)); Bad Frog Brewery, Inc. v. New York State Liquor Auth., 134

F.3d 87, 94 (2d Cir. 1998). But this disfavor arises from concerns about expression chilled while

the parties seek a state court ruling. City of Houston, 482 U.S. at 467-468 (“In such case[s] to

force the plaintiff who has commenced a federal action to suffer the delay of state-court

proceedings might itself effect the impermissible chilling of the very constitutional right he seeks

to protect.” (quotation marks and citation omitted)). The same concerns do not apply when the

plaintiffs’ fears of prosecution are not justified.

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Indeed, even in the context of a First Amendment challenge, abstention remains

appropriate where the Pullman interests at stake outweigh the federal interests, whether because

the state’s courts have not had a chance to construe the statute, Expressions Hair Design, 808

F.3d at 189, or because the state law being interpreted touches issues that are traditionally a

matter of state concern. Zuffa v. Schniederman, 15-CV-7624 (KMW), 2016 WL 311298, at *6

(S.D.N.Y. Jan. 26, 2016).

As JCOPE has emphasized throughout this memorandum, the Advisory Opinion does not

actually require the disclosures that the Plaintiffs’ allege would violate their First Amendment

rights. The disclosures it requires—the client, how much the client paid, and the specific

government action (e.g., the bill number) that he or she attempted to influence—are the same that

the Supreme Court approved in Harriss and New York law has required since 1979. See

Temporary Commission Opinion No. 79-1 (1979) (“[The legislature] wants only to know who is

being hired, who is putting up the money, and how much.” (quoting Harriss, 347 U.S. at 625)).

Consequently, the Plaintiffs’ fears of chilled expression are not justified. They do not need to

stop speaking to reporters in order to protect confidential conversations and relationships. See

Zuffa, 2016 WL 311298, at *6 (finding abstention would not chill the plaintiffs’ expression

because the statute did not prevent the plaintiffs from engaging in any protected conduct).

By contrast, the Pullman interests at stake in this matter are substantial. No New York

court has had an opportunity to consider this New York regulatory question that could determine

the fate of a critically-important 35-year-old statute. And weighing the Plaintiffs’ First

Amendment claims would require this Court to rule on a completely hypothetical disclosure

regime that no state—including New York—has explicitly endorsed.

Case 1:16-cv-01739-LGS Document 30 Filed 05/13/16 Page 30 of 32

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Plaintiffs are asking the Court to hold a New York regulation unconstitutional based

entirely on speculation that the New York courts might give it an expansive and arguably

problematic reading that its text does not require. See Expressions Hair Design, 808 F.3d at 189.

New York state courts should be afforded the opportunity to adopt the narrow, unproblematic

interpretation suggested either by the enforcing agency itself or the text and history of the

Lobbying Act.22

CONCLUSION

For the foregoing reasons, the Court should grant JCOPE’s Motion to Dismiss the

Complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(1). In the alternative,

JCOPE respectfully requests that the Court abstain from exercising its jurisdiction until a New

York court has had a chance to consider this New York regulatory issue.

New York, New York

Dated: May 13, 2016 By: /s/ Thomas Patrick Lane

Thomas Patrick Lane

Seth E. Spitzer

WINSTON & STRAWN LLP

200 Park Avenue

New York, NY 10166

Tel. (212) 294-6700

Fax (212) 294-4700

[email protected]

[email protected]

Dan K. Webb (pro hac vice)

WINSTON & STRAWN LLP

35 West Wacker Drive

Chicago, Illinois 60601

Tel.: (312) 558-5600

Fax: (312) 558-5700

[email protected]

22 Although it is not possible for a federal district court to certify a question to the New York Court of Appeals, see

N.Y. Comp. Codes R. & Regs. Tit. 22, § 500.27, the court may retain jurisdiction pending a determination by a state

court as to the meaning of the challenged state law. Zuffa LLC v. Schniederman, 2016 WL 311298, at *7. This

Court should do so.

Case 1:16-cv-01739-LGS Document 30 Filed 05/13/16 Page 31 of 32

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25

Attorneys for Defendant New York State

Joint Commission on Public Ethics

Case 1:16-cv-01739-LGS Document 30 Filed 05/13/16 Page 32 of 32