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

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
THE NOVEMBER TEAM, INC., et al.,
Plaintiffs,
-againstNEW 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

DEFENDANTS 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
dwebb@winston.com
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
tlane@winston.com
sspitzer@winston.com

Case 1:16-cv-01739-LGS Document 30 Filed 05/13/16 Page 2 of 32

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

C.

V.

1.

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

2.

The Plaintiffs Offer No Objective Evidence That They Face

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

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

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 COURTS OPINION
ADVISORY.......................................................................................................................18
A.

Deference to JCOPEs 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 Comn on Lobbying,
16 A.D.3d 886 (3d Dept 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

ii

Case 1:16-cv-01739-LGS Document 30 Filed 05/13/16 Page 4 of 32

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. Appx 517 (9th Cir. 2013) ......................................................................................10, 13
Marchi v. Bd. of Coop. Educ. Servs. of Albany,
173 F.3d 469 (2d Cir. 1999).....................................................................................................17

iii

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Moore v. Sims,
442 U.S. 415 (1979)...........................................................................................................18, 19
Natl Org. for Marriage, Inc. v. Walsh,
714 F.3d 682 (2d Cir. 2013).......................................................................................................8
Natl Park Hospitality Assn v. Dept 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 Dept 1982) .................................................................................................4
Pship 92 LP v. State Div. of Hous. and Cmty. Renewal,
46 A.D.3d 425 (1st Dept 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

iv

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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, Moores 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

vi

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Draft 5/13/2016 12:19 PM
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 Yorks 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 Ethicss
(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

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 questionwhether New Yorks Lobbying Act, as interpreted by the
Advisory Opinion, violates the First and Fourteenth Amendments to the United States
Constitutiondepends 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
legislatures 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.

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).
3

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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 Opinions 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 Yorks 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 regulationsmeaning 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. JCOPEs 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 Harrisss 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.

Police Conference of N.Y. v. Kreutzer, 91 A.D.2d 735, 735 n.* (3d Dept 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).

Case 1:16-cv-01739-LGS Document 30 Filed 05/13/16 Page 12 of 32

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 Yorks 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 Acts application to consultants who attempt . . . to induce a third-party
whether the public or the pressto deliver the clients 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.

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 Opinions 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.
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 Opinions 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 clients] 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 reporters 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
13

Lane Decl. Exh. 2 (JCOPE FAQ), at 2.

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 courts 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.

Case 1:16-cv-01739-LGS Document 30 Filed 05/13/16 Page 15 of 32

(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 factan 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); Natl 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 preenforcement 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. Natl 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

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

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

Case 1:16-cv-01739-LGS Document 30 Filed 05/13/16 Page 17 of 32

Even where a plaintiffs 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 Yorks 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 nonprofit political organizations lacked standing to challenge Washington states 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. Appx 517 (9th Cir.
2013); see also Many Cultures, One Message v. Clements, 520 F. Appx 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. Appx 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
10

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identities of reporters they contact or the content of their conversations with those reporters. As
JCOPEs 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 Courts 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 Opinions reporting requirementswho paid, how much, and for
whatare 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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Case 1:16-cv-01739-LGS Document 30 Filed 05/13/16 Page 19 of 32

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 Acts regulationsregulations 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 interpretationungrounded in the Advisory Opinions textis 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 Plaintiffsor any other consultantsfor
any such failure to report. The absence of a specific threat is often fatal to plaintiffs standing.
17
18

See supra note 10 and accompanying text.

Such an allegation would be baseless, given that the Advisory Opinion does not require those disclosures.

12

Case 1:16-cv-01739-LGS Document 30 Filed 05/13/16 Page 20 of 32

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 beganindeed, 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 regulationreporting, not an outright banis 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. Appx 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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Case 1:16-cv-01739-LGS Document 30 Filed 05/13/16 Page 21 of 32

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. Natl Park Hospitality Assn v.
Dept 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-infact, 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, Moores Federal
Practice 101.71 (3d Ed. 2003)); see also United States v. Fell, 360 F.3d 135, 139 (2d Cir. 2004)

14

Case 1:16-cv-01739-LGS Document 30 Filed 05/13/16 Page 22 of 32

(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 enforcedor threatened to enforceagainst 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 14849).
The fitness analysis depends in large part on a matters factual development. It is
concerned with whether the issues sought to be adjudicated are contingent on future events or

15

Case 1:16-cv-01739-LGS Document 30 Filed 05/13/16 Page 23 of 32

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 companys motion
to enforce subpoenas served on a brokers 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 Commissions
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 Commissions counsel followed up with a letter clarifying that the Commissions 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 policys

16

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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 courts 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 Educations interpretation of the No Child Left Behind Acts 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 Educations 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

17

Case 1:16-cv-01739-LGS Document 30 Filed 05/13/16 Page 25 of 32

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 JCOPEs 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 COURTS 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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Case 1:16-cv-01739-LGS Document 30 Filed 05/13/16 Page 26 of 32

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, Pullmans logic suggests that the state courtsif
they have not definitively construed the statute alreadyshould 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 laws 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 timethus 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 Yorks 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 Yorks 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 agencys 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 Opinions 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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Case 1:16-cv-01739-LGS Document 30 Filed 05/13/16 Page 28 of 32

A.

Deference to JCOPEs Interpretation Would Moot The Federal Question

If a New York court were permitted to interpret the Advisory Opinion, it could defer to
JCOPEs own interpretation of its Advisory Opinion. See Pship 92 LP v. State Div. of Hous.
and Cmty. Renewal, 46 A.D.3d 425, 429 (1st Dept 2007) ([I]t is . . . well settled that an
agencys interpretation of the statutes and regulations it is responsible for administering is
entitled to great deference, and must be upheld if reasonable. (citations omitted)). JCOPEs
interpretation of the statutes requirementsin this case disclosure of clients, payments, and
targeted legislationhas already been cleared of constitutional doubt. CICU , 534 F. Supp. at
497. Deferring to JCOPEs 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 hereNew Yorks Lobbying Actwould remain susceptible
to an interpretation that raises no federal issues. CICU approved the Lobbying Act as
conforming to Harrisss guidelines over thirty years ago. 534 F. Supp. at 497. Although the
text of the Lobbying Act and the Commissions 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 Harrisss 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 Opinions
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

21

Case 1:16-cv-01739-LGS Document 30 Filed 05/13/16 Page 29 of 32

statute in a way that will needlessly render it unconstitutional. Chavis v. New York Temp. State
Commn on Lobbying, 16 A.D.3d 886, 887 (3d Dept 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. JCOPEs reasonable interpretation of the statute
embodied in the text of the Advisory Opinion and the explanatory FAQis 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, 489490 (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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Case 1:16-cv-01739-LGS Document 30 Filed 05/13/16 Page 30 of 32

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 states 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 requiresthe client, how much the client paid, and the specific
government action (e.g., the bill number) that he or she attempted to influenceare 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 stateincluding New Yorkhas explicitly endorsed.

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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 JCOPEs 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
tlane@winston.com
sspitzer@winston.com
Dan K. Webb (pro hac vice)
WINSTON & STRAWN LLP
35 West Wacker Drive
Chicago, Illinois 60601
Tel.: (312) 558-5600
Fax: (312) 558-5700
dwebb@winston.com

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.

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

Attorneys for Defendant New York State

Joint Commission on Public Ethics

25