SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 16 -------------------------------------------------------------------- x IN THE MATTER OF SUBPOENA ISSUED BY COMMISSION TO INVESTIGATE PUBLIC CORRUPTION TO FARRELL FRITZ, P.C. : : : : Index No. 160876/2013 Honorable Alice Schlesinger -------------------------------------------------------------------- x -------------------------------------------------------------------- x : IN THE MATTER OF SUBPOENA ISSUED BY COMMISSION TO INVESTIGATE PUBLIC CORRUPTION TO HARRIS BEACH PLLC : : : Index No. 160880/2013 -------------------------------------------------------------------- x -------------------------------------------------------------------- x : IN THE MATTER OF SUBPOENA ISSUED BY COMMISSION TO INVESTIGATE PUBLIC CORRUPTION TO HISCOCK & BARCLAY, LLP : : : Index No. 160909/2013 -------------------------------------------------------------------- (caption continues on next page) x MEMORANDUM OF LAW IN OPPOSITION TO THE MOTIONS TO QUASH AND TO INTERVENE AND IN SUPPORT OF THE CROSS-MOTIONS TO COMPEL AND MOTION TO DISMISS LESLIE B. DUBECK Special Assistant NICHOLAS SUPLINA Special Counsel JUDITH VALE Assistant Solicitor General SIMON BRANDLER Assistant Attorney General of Counsel ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for the Commission 120 Broadway, 25th Floor New York, NY 10271 (212) 416-6274 BARBARA D. UNDERWOOD Solicitor General KELLY DONOVAN Executive Deputy Attorney General and Chief Counsel to the Commission to Investigate Public Corruption STEVEN C. WU Deputy Solicitor General
Transcript
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 16 --------------------------------------------------------------------x IN THE MATTER OF SUBPOENA ISSUED BY COMMISSION TO INVESTIGATE PUBLIC CORRUPTION TO FARRELL FRITZ, P.C.
IN THE MATTER OF SUBPOENA ISSUED BY COMMISSION TO INVESTIGATE PUBLIC CORRUPTION TO HISCOCK & BARCLAY, LLP
: : :
Index No. 160909/2013
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x
MEMORANDUM OF LAW IN OPPOSITION TO THE MOTIONS TO QUASH AND TO INTERVENE AND IN SUPPORT OF
THE CROSS-MOTIONS TO COMPEL AND MOTION TO DISMISS LESLIE B. DUBECK Special Assistant NICHOLAS SUPLINA Special Counsel JUDITH VALE Assistant Solicitor General SIMON BRANDLER Assistant Attorney General of Counsel
ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for the Commission 120 Broadway, 25th Floor New York, NY 10271 (212) 416-6274 BARBARA D. UNDERWOOD Solicitor General KELLY DONOVAN Executive Deputy Attorney General and Chief Counsel to the Commission to Investigate Public Corruption STEVEN C. WU Deputy Solicitor General
NEW YORK STATE SENATE, NEW YORK STATE ASSEMBLY, DEAN G. SKELOS and JEFFREY D. KLEIN, as members and as Temporary Presidents of the New York State Senate, and SHELDON SILVER, as member and as Speaker of the New York State Assembly,
Petitioners,
- against - COMMISSION TO INVESTIGATE PUBLIC CORRUPTION,
NEW YORK STATE SENATE, NEW YORK STATE ASSEMBLY, DEAN G. SKELOS and JEFFREY D. KLEIN, as members and as Temporary Presidents of the New York State Senate, and SHELDON SILVER, as member and as Speaker of the New York State Assembly,
Plaintiffs,
- against - KATHLEEN RICE, WILLIAM J. FITZPATRICK and MILTON L. WILLIAMS, Jr. in their official capacities as Co-Chairs of the Moreland Commission on Public Corruption, and THE MORELAND COMMISSION TO INVESTIGATE PUBLIC CORRUPTION,
Defendants.
: : : : : : : : : : : : : : : : : : :
Index No. 160941/2013
--------------------------------------------------------------------(caption continues on next page)
POINT I - THE SUBPOENAS ARE AN AUTHORIZED EXERCISE OF THE COMMISSION’S DUAL STATUTORY SUBPOENA POWERS .....................17�
(Responds to Law Firms’ Motions to Quash; Legislators’ Motion to Quash; and Legislators’ Complaint)��
A.� The Subpoenas Are an Authorized Exercise of the Commission’s Section 6 Power. ...........................................................................................17�
B.� The Subpoenas Are an Authorized Exercise of the Commission’s Section 63(8) Investigatory Power. ...............................................................19�
C.� The Commission Properly Exercises Concurrent Authority Under Section 6 and Section 63(8). .........................................................................20�
ii
D.� The Funding of the Commission’s Investigation Is Consistent with Law, and in Any Event Does Not Invalidate the Subpoenas. .......................23�
POINT II - THE COMMISSION DOES NOT VIOLATE SEPARATION OF POWERS BY EXERCISING THE POWERS GRANTED TO IT BY THE LEGISLATURE ..........................................................................................27�
(Responds to Law Firms’ Motions to Quash; Legislators’ Motion to Quash; and Legislators’ Complaint)��
POINT III - THE SUBPOENAS ARE PROCEDURALLY PROPER ....................................33�
(Responds to Law Firms’ Motions to Quash; Legislators’ Motion to Quash; and Legislators’ Complaint)��
POINT IV - THE COMMISSION HAS AN AMPLE FACTUAL BASIS FOR THE SUBPOENAS .......................................................................................................35�
(Responds to Law Firms’ Motions to Quash and Legislators’ Complaint)��
� The Subpoenas Seek Information Reasonably Related to the A.Commission’s Investigatory Purposes. .........................................................36�
� No Suspicion of Wrongdoing Is Required To Support the B.Subpoenas. ....................................................................................................39�
POINT V - THE COMMISSION’S TARGETED SUBPOENAS DO NOT REQUEST PRIVILEGED INFORMATION AND ARE NOT OVERBROAD .....................................................................................................41�
(Responds to Law Firms’ Motions to Quash and Legislators’ Complaint)��
A.� The Subpoenas Do Not Seek Any Information Protected from Disclosure. ....................................................................................................41�
B.� The Subpoenas Are Not Unduly Burdensome, Overbroad, Vague, or Oppressive.....................................................................................................44�
POINT VI - THE LEGISLATORS HAVE NO STANDING TO QUASH, OR TO CHALLENGE THROUGH A DECLARATORY-JUDGMENT ACTION, SUBPOENAS NOT DIRECTED AT THEM .....................................46�
(Responds to the Legislators’ Motion to Quash and Legislators’ Complaint)��
� The Legislators Lack Standing As NonSubpoenaed Persons Who A.Have No Property or Privilege Rights in the Requested Materials. .............47�
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� The Legislators May Not Rely on the Narrowly Defined Doctrine of B.Legislator Standing Because the Subpoenas Do Not Nullify Votes or Usurp Legislative Power. ..............................................................................50�
� The Legislators Cannot Circumvent Their Lack of Standing by C.Seeking Declaratory-Judgment Relief. .........................................................53�
POINT VII - THE LEGISLATORS’ MOTIONS TO INTERVENE SHOULD BE DENIED ...............................................................................................................55�
(Responds to the Legislators’ Motions to Intervene)��
A.� The Legislators Cannot Intervene As of Right or By Permission of the Court Because They Lack Standing to Object to the Subpoenas. ...........55�
B.� The Legislators May Not Intervene as of Right Because the Law Firms Are Adequate Representatives and Because the Legislators Would Not be Bound by a Judgment Here. ..................................................56�
C.� The Legislators Should Not Be Granted Permissive Leave to Intervene Because They Have No Substantial Interest in the Law Firms’ Litigations..........................................................................................58�
Am. Dental Co-op., Inc. v. Attorney General, 127 A.D.2d 274 (1st Dep’t 1987) ............................................................................................44
Anheuser-Busch, Inc. v. Abrams, 71 N.Y.2d 327 (1988) ............................................................................................15, 16, 35, 36
Brigham City v. Stuart, 547 U.S. 398 (2006) .................................................................................................................33
Bronx Jewish Boys v. Uniglobe, Inc., 166 Misc. 2d 347 (Sup. Ct. N.Y. County 1995) ......................................................................43
Carl Andrews & Assocs. v. Office of the Inspector Gen., 85 A.D.3d 633 (1st Dep’t 2011), lv. denied, 18 N.Y.3d 805 (2012) .......................................46
Cherry v. Koch, 126 A.D.2d 346 (2d Dep’t 1987) .............................................................................................53
Clark v. Cuomo, 66 N.Y.2d 185 (1985) ..............................................................................................................27
Clark v. Putnam County, 168 F.3d 458 (11th Cir. 1999) .................................................................................................56
Coleman v. Miller, 307 U.S. 433 (1939) .................................................................................................................50
Gravel v. United States, 408 U.S. 606 (1972) .................................................................................................................29
Green v. Santa Fe Indus., Inc., 70 N.Y.2d 244 (1987) ..............................................................................................................58
Greenspon v. Stichman, 12 N.Y.2d 1079 (1963) ............................................................................................................22
Hire Counsel N.Y. LLC v. Owens, 2012 N.Y. Slip Op. 32009(U) (Sup. Ct. N.Y. County 2012) ...................................................41
v
TABLE OF AUTHORITIES (cont’d) Cases Page Hoffman v. City of Syracuse,
Hutchinson v. Proxmire, 443 U.S. 111 (1979) .....................................................................................................29, 48, 49
In re 50 Pine Co., 317 B.R. 276 (S.D.N.Y. Bankr. 2004) .....................................................................................42
Liao v. N.Y. State Banking Dep’t, 74 N.Y.2d 505 (1989) ..............................................................................................................22
Maron v. Silver, 14 N.Y.3d 230 (2010) ..............................................................................................................52
Mastr Adjustable Rate Mortgs. Trust 2006-Oa3 v. UBS Real Estate Secs., Inc., No. 12-cv-7322, 2013 U.S. Dist. LEXIS 15187 (S.D.N.Y. Jan. 11, 2013) .............................57
Matter of Alessi v. Pataki, 21 A.D.3d 1141 (3d Dep’t 2005) .............................................................................................31
Matter of Claydon, 103 A.D.3d 1051 (3d Dep’t 2013) ...........................................................................................42
Matter of Condon v. Inter-Religious Found. for Cmty. Org., Inc., 18 Misc. 3d 874 (Sup. Ct. N.Y. County), aff’d, 51 A.D.3d 465 (1st Dep’t 2008)...................38
Matter of Cunningham v. Nadjari, 39 N.Y.2d 314 (1976) ..............................................................................................................32
Matter of Di Brizzi (Proskauer), 303 N.Y. 206 (1951) ........................................................................................................ passim
Matter of Diamond Asphalt Corp. v. Sander, 92 N.Y.2d 244 (1998) ..............................................................................................................22
Matter of Greenspon v. Stichman, 18 A.D.2d 1053 (1st Dep’t 1963) ............................................................................................22
Matter of Hirshfield v. Craig, 239 N.Y. 98 (1924) ..................................................................................................................33
vi
TABLE OF AUTHORITIES (cont’d) Cases Page Matter of Hogan v. Cuomo,
Matter of Johnson v. Pataki, 91 N.Y.2d 214 (1997) ..................................................................................................21, 27, 31
Matter of La Belle Creole Int’l, S.A. v. Attorney General, 10 N.Y.2d 192 (1961) ..............................................................................................................35
Matter of Lancaster Dev. Inc. v. Power Auth., 145 A.D.2d 806 (3d Dep’t 1988) .............................................................................................25
Matter of Madison Square Garden, L.P. v. N.Y. Metro. Transp. Auth., 2005 N.Y. Slip Op. 50824(U) (Sup. Ct. N.Y. County June 2, 2005) ......................................54
Matter of McCrory v. Vill. of Mamaroneck, 34 Misc. 3d 603 (Sup. Ct. Westchester County 2011) ............................................................57
Matter of N.Y. Republican State Comm. v. N.Y. State Comm’n on Gov’t Integrity, 138 Misc. 2d 790 (Sup. Ct. N.Y. County), aff’d, 140 A.D.2d 1014 (1st Dep’t 1988) ......................................................................... passim
Matter of N.Y. Temporary State Comm’n on Lobbying v. Crane, 49 A.D.3d 1066 (3d Dep’t 2008) .............................................................................................15
Matter of Nassau County Grand Jury Subpoena Duces Tecum Dated June 24, 2003 (Spitzer), 4 N.Y.3d 665 (2005) ................................................................................................................42
Matter of Norse Energy Corp. USA v. Town of Dryden, 108 A.D.3d 25, lv. granted, 21 N.Y.3d 863 (2013) .................................................................57
Matter of Office of the Attorney General, 269 A.D.2d 1 (1st Dep’t 2000) ................................................................................................22
Matter of Oncor Commc’ns, Inc. v. State, 165 Misc. 2d 262 (Sup. Ct. Albany County 1995), aff’d, 218 A.D.2d 60 (3d Dep’t 1996) .........................................................................39, 47, 49
Matter of Pavillion Agency Inc. v. Spitzer, 9 Misc. 3d 626 (Sup. Ct. N.Y. County 2005) ..........................................................................42
vii
TABLE OF AUTHORITIES (cont’d) Cases Page Matter of Pier v. Bd. of Assessment Review of the Town of Niskayuna,
Matter of Reuters Ltd. v. Dow Jones Telerate, Inc., 231 A.D.2d 337 (1st Dep’t 1997) ............................................................................................43
Matter of Selesnick, 115 Misc. 2d 993 (Sup. Ct. Westchester County 1982).....................................................48, 59
Matter of Sigety v. Hynes, 38 N.Y.2d 260 (1975) ........................................................................................................20, 29
Matter of Sloma v. Hynes, 54 A.D.2d 493 (4th Dep’t 1976) ..............................................................................................25
Matter of Temporary State Comm’n on Living Costs & Econ. v. Bergman, 80 Misc. 2d 448 (Sup. Ct. N.Y. County 1975) ........................................................................22
Matter of Tierney v. Cohen, 268 N.Y. 464 (1935) ................................................................................................................22
Matter of Weil v. N.Y. State Comm’n to Investigate Harness Racing, 205 Misc. 614 (Sup. Ct. Nassau County), modified, 205 A.D. 808 (2d Dep’t 1954) ........17, 18
Metro. Waste Mgmt. Corp. v. Town of Hempstead, 135 Misc. 2d 548 (Sup. Ct. Nassau County 1987) ..................................................................53
Montano v. County Legislature of County of Suffolk, 70 A.D.3d 203 (2d Dep’t 2009) ...................................................................................51, 53, 54
Mylod v. Pataki, 171 Misc. 2d 556 (Sup. Ct. Albany County 1996) ............................................................25, 54
N.Y. Shredding Corp. v. N.Y. City Dep’t of Investigation, 184 Misc. 2d 174 (Sup. Ct. N.Y. County 2000) ......................................................................32
N.Y. State Comm’n on Gov’t Integrity v. Congel, 156 A.D.2d 274 (1st Dep’t 1989) .................................................................................... passim
N.Y. Temporary State Comm’n on Lobbying v. Crane, 2007 N.Y. Slip. Op. 30795(U) (Sup. Ct. Albany County 2007), aff’d, 49 A.D.3d 1066 (3d Dep’t 2008) ...................................................................................32
viii
TABLE OF AUTHORITIES (cont’d) Cases Page Osman v Sternberg,
People v. Di Raffaele, 55 N.Y.2d 234 (1982) ..............................................................................................................47
People v. Doe, 96 A.D.2d 1018 (1st Dep’t 1983) ............................................................................................48
People v. Grasso, 11 N.Y.3d 64 (2008) ................................................................................................................22
People v. Harris, 36 Misc. 3d 613 (Crim. Ct. N.Y. County 2012) ................................................................58, 59
People v. Ohrenstein, 77 N.Y.2d 38 (1990) ..........................................................................................................29, 48
People v. Robinson, 97 N.Y.2d 341 (2001) ..............................................................................................................33
People v. Thain, 24 Misc. 3d 377 (Sup. Ct. N.Y. County 2009) ..................................................................58, 59
Persichilli v. Metro. Paper Recycling Inc., 2010 N.Y. Slip Op. 52381(U) (Sup. Ct. Nassau County Nov. 30, 2010) ..........................55, 56
Raines v. Byrd, 521 U.S. 811 (1997) .................................................................................................................50
Rapp v. Carey, 44 N.Y.2d 157 (1978) ..............................................................................................................28
Roman Catholic Church of the Good Shepherd v. Tempco Sys., 202 A.D.2d 257 (1st Dep’t 1994) ............................................................................................41
Rudder v. Pataki, 93 N.Y.2d 273 (1999) ..............................................................................................................55
Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 N.Y.2d 801 (2003) ............................................................................................................54
Schiffman v. Bleakley, 46 N.Y.S.2d 353 (Sup. Ct. N.Y. County 1943) ...........................................................17, 18, 19
ix
TABLE OF AUTHORITIES (cont’d) Cases Page SEC v. Knopfler,
Silver v. Pataki, 96 N.Y.2d 532 (2001) ........................................................................................................ 50-53
Soc’y of the Plastics Indus., Inc. v. County of Suffolk, 77 N.Y.2d 761 (1991) ........................................................................................................47, 52
State ex rel. Field v. Cronshaw, 139 Misc. 2d 470 (Sup. Ct. Nassau County 1988) ............................................................55, 58
Statharos v. N.Y. City Taxi & Limousine Comm’n¸ 198 F.3d 317 (2d Cir. 1999).....................................................................................................27
Uhlfelder v. Weinshall, 47 A.D.3d 169 (1st Dep’t 2007) ..............................................................................................47
Vantage Petroleum v. Bd. of Assessment Review of the Town of Babylon, 91 A.D.2d 1037 (2d Dep’t 1983), aff’d 61 N.Y.2d 695 (1984) ......................................... 57-58
Wash. County Sewer Dist. No. 2 v. White, 177 A.D.2d 204 (3d Dep’t 1992) .............................................................................................16
Constitution
N.Y. Const. art. IV, § 3 ..................................................................................................................30
Public Officers Law § 73-a .................................................................................................... passim
State Finance Law § 123-b .....................................................................................................................................54 § 123-e ...............................................................................................................................25, 54
N.Y. Rules of Prof’l Conduct 1.6(a) (22 N.Y.C.R.R. pt. 1200) ....................................................42
Rules of the Senate of the State of New York for 2013-2014 .......................................................52
Miscellaneous Authorities
Blain, Glenn, Attorney General Eric Schneiderman: Moreland Commission’s Job Is To Promote Reform, Daily Politics (Nov. 12, 2013), available at http://www.nydailynews.com/blogs/dailypolitics/2013/11/attorney-general-schneiderman-says-moreland-commissions-job-is-to-promote-refo .........................................6
Commission to Investigate Public Corruption, Preliminary Report (2013) .......................... passim
Breuer, Ernest, Moreland Act Investigations in New York: 1907-65 (1965) ............................4, 30
Feerick, John D., Reflections on Chairing the New York State Commission on Government Integrity, 18 Fordham Urb. L.J. 157 (1990) ..................................................19, 26
Henry, Dennis Mitchell, Lawyer-Legislator Conflicts of Interest, 17 J. Legal. Prof. 261 (1992) ...................................................................................................10
Kaplan, Thomas, Albany Money Flows to Clients of Firms Employing Legislators, N.Y. Times, June 13, 2011, available at http://www.nytimes.com/2011/06/14/nyregion/ albany-money-flows-to-clients-of-firms-that-employ-legislators.html? pagewanted=all&_r=0 .........................................................................................................9, 10
xi
TABLE OF AUTHORITIES (cont’d) Miscellaneous Authorities Page Kaplan, Thomas, & Danny Hakim, Legislators Reap Benefits of Part-Time Jobs at Law
Firms, Filings Show, N.Y. Times, July 3, 2013, available at http://www.nytimes.com/ 2013/07/04/nyregion/legislators-reap-benefits-of-part-time-jobs-at-law-firms-filings-show.html ...........................................................................................................................10, 36
N.Y. City Bar Ass’n, Reforming New York State’s Financial Disclosure Requirements for Attorney-Legislators (Jan. 2010), available at http://www.nycbar.org/pdf/report/ uploads/20071850-ReformingNYSFinancialDisclosureRequirements.pdf .......................42, 43
N.Y. State Moreland Act Comm’n on Nursing Homes & Residential Facilities, Political Influence and Political Accountability: One Foot in the Door (1976) ....................................18
New York Legislators’ Secret Income, N.Y. Times, Sept. 23, 2013, available at http://www.nytimes.com/2013/07/04/nyregion/legislators-reap-benefits-of-part-time-jobs-at-law-firms-filings-show.html ..................................................................................10, 11
Norden, Lawrence, et al., Brennan Center for Justice, Meaningful Ethics Reforms for the “New” Albany (Feb. 11, 2011), available at http://www.brennancenter.org/ publication/meaningful-ethics-reform-new-albany ...................................................................9
Press Release, N.Y. Office of the Governor, Governor Cuomo Details Comprehensive Reforms to Prevent Public Corruption, Modernize New York’s Voting Laws, and Reduce the Influence of Money in Politics (June 11, 2013), available at http://www.governor.ny.gov/press/06-11-2013-Influence-of-Money-in-Politics .....................6
Press Release, N.Y. Office of the Governor, Governor Cuomo Appoints Moreland “Commission to Investigate Public Corruption,” with Attorney General Schneiderman Designating Commission Members as Deputy Attorneys General (July 2, 2013), available at http://www.governor.ny.gov/press/07022013-new-moreland-commission-named ................................................................................................................ 6-7
Public Papers of Alfred E. Smith, Governor, 1919 (1920) ........................................................4, 30
Robbins, Tom, The Art of the Shakedown, Village Voice, May 11, 2004 .......................................9
Saul, Michael Howard, et al., Six Arrested in Bribery Probe, Wall St. J., Apr. 2, 2013 .................5
Secret, Mosi, Senator in Corruption Case Spoke of Silencing Witnesses, Prosecutors Say, N.Y. Times, May 6, 2013 ..........................................................................................................5
Siegel, David A., New York Practice § 440 ...................................................................................16
xii
TABLE OF AUTHORITIES (cont’d) Miscellaneous Authorities Page Vielkind, Jimmy, Cuomo: We’ll deal with CampFin and abortion in elections, Capitol
Confidential (June 17, 2013), available at http://blog.timesunion.com/capitol/ archives/189263/cuomo-well-deal-with-campfin-and-abortion-in-elections/ ...........................6
Weiser, Benjamin, et al., In 2nd Alleged Bribe Scheme, a Legislator Was in on the Case, N.Y. Times, Apr. 4, 2013...........................................................................................................5
Weiser, Benjamin, Former State Senator Is Sentenced to 7 Years in Vast Bribery Case, N.Y. Times, Apr. 26, 2012.........................................................................................................9
Zaidi, Syed, Money in Politics This Week: Gov. Cuomo Establishes Moreland Commission to Investigate Corruption (Brennan Ctr. for Justice, July 19, 2013), http://www.brennancenter.org/blog/money-politics-week-gov-cuomo-establishes-moreland-commission-investigate-corruption ...........................................................................7
Zaidi, Syed, Money in Politics This Week: NY Senate Fails to Pass Reform Bill, Pushes Through Gambling Expansion (Brennan Ctr. for Justice, June 25, 2013), available at http://www.brennancenter.org/blog/money-politics-week-ny-senate-fails-pass-reform-bill-pushes-through-gambling-expansion ..................................................................................6
PRELIMINARY STATEMENT
In response to a public crisis of confidence in government, Governor Andrew M. Cuomo
formed the Commission to Investigate Public Corruption (Commission) in July 2013, and at the
Governor’s request Attorney General Eric T. Schneiderman designated Commission members as
his deputies. The Commission’s purpose is to conduct a broad investigation into the laws and
public agencies that regulate and oversee government ethics, conflicts of interest, and campaign
finance.
Like similar commissions formed by prior governors or attorneys general, the
Commission is an investigatory body tasked with achieving a comprehensive understanding of
the problems facing New York’s current government-ethics regime. The Commission cannot
itself enact laws or promulgate state policy, but its investigation is intended to lead to
recommendations for proposed legislative reforms. The Commission’s authority derives from
two distinct and complementary statutes: (1) Executive Law § 6, through which the Legislature
authorized the Governor to “examine and investigate the management and affairs of” state
agencies, and (2) Executive Law § 63(8), through which the Legislature separately authorized
the Attorney General, with the approval of or at the direction of the Governor, to investigate
matters concerning “the public peace, public safety and public justice.” Each statute expressly
authorizes the issuance of subpoenas for documents and witnesses.
As just one piece of its broad inquiry into government ethics, the Commission is
evaluating legislators’ practice of earning substantial income from employment outside of the
Legislature, such as from private businesses—an often unsupervised source of money that has
long created opportunities for improper political influence and triggered serious concerns about
conflicts of interest. To help it understand the scope and seriousness of such problems and
2
evaluate the efficacy of current laws and state agencies that address these concerns, the
Commission exercised its express subpoena powers under Sections 6 and 63(8) to request from
outside employers relevant information about their state-related business and their relationships
with legislator-employees.
Although many businesses and law firms are complying with the Commission’s
subpoenas, six law firms—Harris Beach PLLC, Farrell Fritz, P.C., Hiscock & Barclay, LLP,
Commission thus possesses the separate and complementary investigatory powers granted by the
Legislature to (1) inquire into the management or affairs of state entities under Section 6; and
(2) investigate matters of public peace, safety and justice pursuant to Section 63(8). Through
each of these statutes, the Commission is empowered to subpoena any documents relevant to its
investigation.
2. The Executive Order’s Broad Mandate
The Executive Order directs the Commission to investigate weaknesses in a wide range
of anticorruption laws, regulations, and procedures, including those overseen by two state
agencies, the Joint Commission on Public Ethics (JCOPE) and the State Board of Elections
(BOE). Specifically, the Commission is tasked with investigating:
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x “weaknesses in existing laws, regulations and procedures relating to addressing public corruption, conflicts of interest, and ethics in State Government”;
x “weaknesses in existing law, regulations and procedures relating to the
regulation of lobbying, including” compliance with laws administered by JCOPE; and
x “the management and affairs” of BOE, including “the Board’s interactions
with outside individuals and entities, including candidates, donors, and committees, to determine compliance with applicable state laws.”
Executive Order § II. For all of these topics, the Commission is charged with making
“recommendations to reform any weaknesses” in state law, regulation, or procedure that it
uncovers. Id. The Executive Order also directed the Commission to report its preliminary
findings by early December 2013 and to issue a final report before January 2015. Id. § VIII. The
order does not purport to give the Commission any power to implement policy changes, as
distinguished from recommending them.
Pursuant to its investigatory powers under Section 6 and Section 63(8), the Commission
has, among other things, issued approximately two-hundred subpoenas and information requests;
reviewed millions of pages of documents; conducted dozens of interviews and depositions,
including of current legislators, lobbyists, and their clients; and heard testimony from
prosecutors, good-government groups, and members of the public. See Commission to
Investigate Public Corruption, Preliminary Report 6 (2013) (Affidavit of E. Danya Perry (“Perry
Aff.”), Ex. H). As just one piece of this extensive investigation, the Commission is evaluating
weaknesses in current laws, regulations, and procedures addressing legislators’ outside
employment and lobbying activities.
9
C. The Commission’s Inquiry Regarding Outside Employment
New York’s system of allowing its part-time legislators to earn substantial compensation
from nonlegislative employment has long played a central role in the “extreme levels of
corruption” and conflicts of interest facing the State. See Lawrence Norden, et al., Brennan
Center for Justice, Meaningful Ethics Reforms for the “New” Albany 5-6 (Feb. 11, 2011).
Numerous lawmakers have used their outside employment to funnel kickbacks and bribes, with
illegal payments often masquerading as consulting or attorneys’ fees. See id. at 5; Preliminary
Report, supra, at 4-5 (Perry Aff., Ex. H). Former Senator Guy Velella, for example, was
convicted of accepting bribes disguised as sham legal fees. See Tom Robbins, The Art of the
Shakedown, Village Voice, May 11, 2004. Former Senator Carl Kruger was likewise convicted
of taking over $1 million in bribes hidden as consulting payments to his codefendant’s business.
See Benjamin Weiser, Former State Senator Is Sentenced to 7 Years in Vast Bribery Case, N.Y.
Times, Apr. 26, 2012.
Outside employment presents not only the risk of criminal behavior as described above,
but also the risk of actual or apparent conflicts of interest. For example, a “vast pool of potential
conflicts” exists in the awarding of lucrative state contracts to clients of law firms that employ
state legislators. Thomas Kaplan, Albany Money Flows to Clients of Firms Employing
Legislators, N.Y. Times, June 13, 2011 ($7.4 billion in state contracts awarded to clients of firms
with legislator-employees in five year period ending in 2011). Similar conflicts can arise from
legislators who work for law firms that deal directly with the Legislature as lobbyists, or who
work for law firms that have clients who are registered lobbyists. See id.
The public’s trust and confidence in government are undermined when legislators’
outside employment is perceived as creating the potential for corruption, whether or not
10
legislators actually allow the interests of their firm’s clients to influence legislative action. This
concern persists, in part, because many lawmakers earn five or six-figure salaries “through law
firms or other jobs whose duties are often nebulous.” Thomas Kaplan & Danny Hakim,
Legislators Reap Benefits of Part-Time Jobs at Law Firms, Filings Show, N.Y. Times, July 3,
2013; see New York Legislators’ Secret Income, N.Y. Times, Sept. 23, 2013.
The dangers are especially acute for attorney-legislators, who owe fiduciary duties to
both their constituents and their private clients, because “[i]nevitably, some legislation will
benefit the former and burden the latter, or vice versa.” Dennis Mitchell Henry, Lawyer-
Legislator Conflicts of Interest, 17 J. Legal. Prof. 261, 262-64 (1992); see Kaplan, Albany Money
Flows to Clients of Firms Employing Legislators, supra. For example, the perception of
competing fiduciary interests arises where a legislator is a member of a personal injury or
malpractice firm and votes against tort reform that would limit the financial awards the firms’
clients could recover. See Preliminary Report, supra, at 16 (Perry Aff., Ex. H). Even where a
legislator does not personally represent clients with state business, that legislator may feel
compelled to serve those clients’ interests because the resulting fees contribute to the firm and,
ultimately, to the legislator’s financial well-being. See Henry, supra, at 267.
The Public Integrity Reform Act (PIRA) was enacted in 2011 partly in reaction to these
concerns regarding public corruption and conflicts of interest connected to outside income. See
Ch. 399, 2011 McKinney’s N.Y. Laws 1205. PIRA took the imperfect step of mandating some
increased public disclosure regarding public officials’ outside income and employment. Id. pt. A,
§ 5, 2011 McKinney’s N.Y. Laws at 1208 (amending Public Officers Law § 73-a(2)-(3)). The
statute also created JCOPE to oversee and enforce the disclosure regime and other laws
addressing government ethics. Id. pt. A, § 6, 2011 McKinney’s N.Y. Laws at 1222 (amending
11
Executive Law § 94). But the disclosures required by PIRA are relatively limited, raising serious
questions about their efficacy—questions that the Commission is tasked with investigating. For
instance, lawmakers are not required to describe in any detail the sources of their outside income
or the services they provide to clients. See New York Legislators’ Secret Income, supra;
Preliminary Report, supra, at 15 (Perry Aff., Ex. H). Moreover, existing law requires officials to
disclose their clients only in narrow circumstances where: the official personally provides
services to the client or refers the client to the firm; the official or the firm earns more than
$10,000 for the services; and those services are directly connected to proposed legislation, a state
contract or grant, or a case before a state agency. Public Officers Law § 73-a(3). Whether due to
the narrowness of this requirement, noncompliance by legislators, or some other reason, only one
legislator has disclosed a client who had dealings with the State for the 2012 calendar year. See
Preliminary Report, supra, at 15 (Perry Aff., Ex. H).
D. The Commission’s Subpoenas to Outside Employers
As part of its investigation, the Commission began gathering information to help it
understand the “real or perceived conflicts” arising from the confluence of legislators’ “public
and private activity” and “how any such conflicts may be redressed or eliminated.” See Letter
from D. Perry to M. Nozzolio, Aug. 27, 2013 (Perry Aff., Ex. B). Hoping to work cooperatively,
the Commission sent letters to legislators who reported more than $20,000 in outside income for
2012, explaining its goals and asking them to: describe the services they provided to outside
employers; explain the amount of and basis for their outside income; and, for attorneys, list their
clients in civil cases or in publicly filed criminal matters. Id. Certain legislators voluntarily
provided the requested information and are continuing to work with the Commission. See Perry
Aff. ¶ 12. Other legislators, however, refused to help the Commission. Instead, counsel
12
representing the Assembly and Senate represented that these legislators would provide only
publicly available information and claimed that even the Commission’s requests for voluntary
disclosure raised separation-of-powers issues. See Letter from M. Kasowitz and M. Garcia to D.
Perry, Sept. 20, 2013 (Perry Aff., Ex. C). This letter made clear to the Commission that, no
matter the scope of its requests, certain legislators planned to oppose providing any information
to the Commission about their nonlegislative conduct.
With this cooperative avenue to obtaining information on legislators’ outside
employment foreclosed, the Commission decided to subpoena the employers that possess the
documents relevant to the Commission’s inquiry. These materials include contracts, invoices,
and client lists, which demonstrate the services, if any, provided by legislators to their employers
and clients, as well as the compensation they received in return. See, e.g., Subpoena Duces
Tecum to Harris Beach PLLC ¶ C.1 (Perry Aff., Ex. D). To understand the potential conflicts
that might arise from these services, the Commission also sought documents showing the state-
related business and lobbying activities of the Law Firms and their clients. See id. ¶ C.2-3.
Although the Commission had the power then, as it does now, to subpoena the legislators
directly for information regarding nonlegislative activities, it chose not to do so for numerous
reasons. One reason was that relevant documents were more likely to be in the possession of the
law firms than in the possession of the legislators. Another reason was that directing subpoenas
to private firms might avoid the need to litigate claims based on separation of powers, in light of
the fact that the private Law Firms have made it clear that they view their work for clients with
lobbying and state-related business as “separate and independent” from the public duties of their
legislator-employees (see, e.g., Harris Beach PLLC’s Mem. of Law in Support of Pet. to Quash
13
Non-Judicial Subpoena (“Harris Mem.”) at 1).3 After constructive discussions with numerous
private employers, nine of the thirty subpoenaed businesses have completed productions and
another four are negotiating with the Commission regarding an appropriate production. Perry
Aff. ¶ 22.
E. The Law Firms and Legislators Begin Litigations
Rather than work with the Commission, as several other businesses have done, the Law
Firms responded to the subpoenas by sending letters to the Commission raising concerns about
the Commission’s authority to issue the subpoenas and the breadth of the information requests.
See, e.g., Letter from K. Sleight to D. Perry, Nov. 1, 2013 (Perry Aff., Ex. E). The Commission
tried to work with the Law Firms to resolve their alleged concerns without litigation by sending a
letter responding to the issues they had raised, offering to consider reasonable suggestions for
clarifying or narrowing the subpoenas, and meeting in person with attorneys representing the
Law Firms. See, e.g., Letter from K. Donovan and D. Perry to K. Sleight, Nov. 6, 2013 (Perry
Aff., Ex. F); Perry Aff. ¶ 21. After these efforts failed, the Commission unilaterally narrowed
and clarified several of its information requests. See Letter from K. Donovan & D. Perry to K.
Sleight and J. Wicks, Nov. 21, 2013 (Perry Aff., Ex. G). Nevertheless, seven firms filed motions
to quash the subpoenas on behalf of a total of eighteen outside employers. One of these law
firms, Jordan & Kelly, LLC, subsequently withdrew its motion to quash after deciding instead to
respond to the subpoena. See Notice of Voluntary Discontinuance, Jordan & Kelly LLC v.
3 Because the Law Firms raise nearly identical arguments, the Commission will reference
one Law Firm’s memorandum of law as representative of the Law Firms’ contentions, and will address any distinct issues raised by particular Law Firms as needed.
14
Comm’n to Investigate Public Corruption (Sup. Ct. N.Y. County Dec. 9, 2013) (Index No.
160937/2013).
Although no individual legislator or either legislative institution had received a subpoena,
the Legislators—in their official capacities as members of the Legislature and purportedly on
behalf of the Senate, Assembly, and every legislator—also filed their own motion seeking to
quash every subpoena issued to every outside employer. They then also separately filed a
declaratory-judgment complaint (“Complaint”) asserting claims essentially identical to the
arguments raised in their motion to quash. The Complaint, however, goes so far as to assert that
the arguments contained in the Legislators’ motion to quash also require this Court to declare
unconstitutional the Executive Order empanelling the Commission as well as all of the
Commission’s requests for voluntary disclosures and subpoenas, despite legislators and
employers having already provided information to the Commission. See Compl. ¶ 97. Almost a
week later, the Legislators filed motions to intervene in all six of the lawsuits filed by the Law
Firms.
The Commission opposes all the motions to quash filed by the Law Firms and the
Legislators, and has filed cross-motions pursuant to C.P.L.R. 2308(b) to compel the Law Firms’
compliance with the subpoenas. The Commission has also filed a motion seeking either dismissal
of the declaratory-judgment Complaint pursuant to C.P.L.R. 3211(a)(2), (3) and (7) for lack of
standing and failure to state a claim, or a declaration pursuant to C.P.L.R. 3001 explaining why
the Legislators are not entitled to relief. The Commission also opposes all of the Legislators’
motions to intervene.
15
F. The Commission’s Preliminary Report
On December 2, 2013, the Commission released a Preliminary Report providing its
initial findings regarding public corruption in New York and policy recommendations “to restore
ordinary New Yorkers’ faith in our political system.” Preliminary Report, supra, at 1 (Perry Aff.,
Ex. H). This ninety-eight-page report covered “four core areas” related to weaknesses in
government-ethics laws, regulations, and procedures: legislators’ outside income, member items,
and personal use of campaign accounts; the State’s campaign-finance system; the BOE and
election-law enforcement; and prosecutorial tools to combat corruption. See id. at 1, 3-13. The
Commission described the astonishing crimes, abuses of public funds, and conflicts of interest it
has been evaluating (id. at 3-5, 14-25), the sorry state of the BOE and the campaign-finance
system (id. at 27-40, 59-83), and hurdles facing prosecutors (id. at 86-97).
The Commission issued preliminary proposals to help the Legislature and Governor
begin crafting comprehensive reforms to resolve these problems. Id at 1, 10-13. The
Commission’s investigation is “active and ongoing,” and will continue to gather information and
“to consider new policy areas where reform can bring greater transparency, accountability, and
integrity to our governing bodies.” Id.
ARGUMENT
Because there “is authority, relevancy, and some basis for inquisitorial action,” the
Commission’s subpoenas must be upheld unless “the futility of the process to uncover anything
legitimate is inevitable or obvious or where the information sought is utterly irrelevant to any
proper inquiry.” Matter of N.Y. Temporary State Comm’n on Lobbying v. Crane, 49 A.D.3d
1066, 1067 (3d Dep’t 2008) (quotation marks omitted); see Anheuser-Busch, Inc. v. Abrams, 71
N.Y.2d 327, 331-32 (1988). Moreover, the Commission is entitled to a presumption that its
16
investigation is “in good faith.” See Anheuser-Busch, Inc., 71 N.Y.2d at 332. Under these broad
standards, the Law Firms’ and Legislators’ motions to quash must be denied and the
Commission’s cross-motions to compel must be granted.
Moreover, the Court should either dismiss the Legislators’ declaratory-judgment
Complaint for lack of standing or failure to state a claim, or determine on the merits that the
Legislators are not entitled to relief. Because the Complaint raises only issues of law through
repetition of claims already asserted in the various motions to quash, the Court may reach the
merits now and declare the rights of the parties. See Wash. County Sewer Dist. No. 2 v. White,
177 A.D.2d 204, 206 (3d Dep’t 1992); Hoffman v. City of Syracuse, 2 N.Y.2d 484, 487 (1957);
David A. Siegel, New York Practice § 440.
The subpoenas are independently authorized by both the Governor’s powers under
Section 6 and the Attorney General’s distinct Section 63(8) authority. Because these two
complementary statutes, duly enacted by the Legislature, fully support the Commission’s
subpoena power, there can be no separation-of-powers concerns. Moreover, the Commission’s
requests for documents relating to legislators’ outside income seek information directly relevant
to its inquiry, without asking for any privileged information or imposing an undue burden on the
Law Firms. Finally, there is no merit to the procedural objection raised by the Law Firms and the
Legislators. The Commission will address these merits issues first because resolution of the
claims on the merits disposes of all of the cases as to all parties. The Commission will then
address the Legislators’ lack of standing to raise any of their purported claims or to intervene.
17
POINT I
THE SUBPOENAS ARE AN AUTHORIZED EXERCISE OF THE COMMISSION’S DUAL STATUTORY SUBPOENA POWERS
Responds to Law Firms’ Motions to Quash; Legislators’ Motion to Quash; and Legislators’ Complaint
The Commission’s investigation is authorized by two distinct but complementary
statutory provisions duly enacted by the Legislature: Executive Law § 6 and Executive Law
§ 63(8). Pursuant to the investigatory powers granted to it by these statutes, the Commission is
evaluating the weaknesses in existing laws, regulations, and procedures governing ethics and
conflicts of interest, including those administered by JCOPE and BOE. Contrary to the Law
Firms’ and Legislators’ arguments, the Commission’s subpoenas are fully supported by both
Section 6 and Section 63(8).
A. The Subpoenas Are an Authorized Exercise of the Commission’s Section 6 Power.
The subpoenas are an authorized exercise of the Governor’s Section 6 investigatory
authority to “examine and investigate the management and affairs” of State entities. Executive
Law § 6. The Governor properly exercised this statutory discretion by appointing the
Commission to investigate laws, regulations, and procedures overseen by two state entities,
JCOPE and BOE. Executive Order ¶ II; see Schiffman v. Bleakley, 46 N.Y.S.2d 353, 354 (Sup.
Ct. N.Y. County 1943). In conducting this inquiry, the Commission is expressly authorized to
issue subpoenas. Executive Order ¶ V; see Matter of Weil v. N.Y. State Comm’n to Investigate
Harness Racing, 205 Misc. 614, 619 (Sup. Ct. Nassau County), modified, 205 A.D. 808 (2d
Dep’t 1954).
18
The Commission’s Section 6 investigatory power extends beyond the regulations and
procedures of JCOPE and BOE to “non-State entities or individuals whose activities are
regulated [by] or directly relate to” JCOPE and BOE, which in this case include the outside
employers and their legislator-employees. See Matter of N.Y. Republican State Comm., 138
Misc. 2d at 794; Matter of Weil, 205 Misc. at 619. JCOPE oversees the mandatory financial
disclosures regarding legislators’ outside employment, enforces compliance with conflicts-of-
interest rules, and regulates lobbying. See Executive Law § 94; Public Officers Law § 73-a.
Indeed, in 2011 through PIRA, the Legislature chose to provide JCOPE with regulatory authority
over such matters for legislators. See Ch. 399, pt. A, § 6, 2011 McKinney’s N.Y. Laws at 1222.
And BOE regulates the campaign activities and contributions of the Law Firms, their members,
and the legislators. See Election Law §§ 3-102, 3-104.
Any investigation into the regulatory regimes administered by these two state entities
necessarily involves some investigation into the parties and activities that the entities regulate—
particularly when, as here, a principal purpose of the investigation is to determine whether the
state entities are engaged in effective regulation. A contrary rule precluding such inquiry would
wholly undermine Section 6 investigations into regulatory agencies, preventing any such
investigation from achieving its purpose of providing comprehensive information to the
Governor about the functions of state government. For this reason, courts have consistently
rejected any such rule. See Matter of Weil, 205 Misc. at 619; Schiffman, 46 N.Y.S.2d at 354.
Accordingly, prior Section 6 commissions have inquired into nonlegislative activities of
legislators. For example, a Section 6 commission established to evaluate corruption in the
nursing home industry conducted extensive inquiries into the roles of legislators, among others,
in exerting public influence for the proprietary benefit of a nursing home. See N.Y. State
19
Moreland Act Comm’n on Nursing Homes & Residential Facilities, Political Influence and
Political Accountability: One Foot in the Door 8-9, 73-81 (1976).
The Law Firms’ and Legislators’ insistence that the Commission’s inquiry improperly
targets “the Legislature” (Harris Mem. at 8-10; Legislators’ Mem. of Law in Support of Pet. to
misunderstands the scope of Section 6 and the “the purpose of the Commission.” See Schiffman,
46 N.Y.S.2d at 354. As part of its broad inquiry into the anti-corruption regimes overseen by
JCOPE and BOE, the Commission seeks disclosure of information about conduct (i.e., outside
employment) that is closely regulated by these executive agencies and that is by definition
separate from legislative duties. This investigation is thus not into the Legislature alone as an
institution or “the affairs of legislators as legislators,” see John D. Feerick, Reflections on
Chairing the New York State Commission on Government Integrity, 18 Fordham Urb. L.J. 157,
158-59 (1990), such as legislative acts protected by the Speech and Debate Clause, see infra, at
29-30. Rather, the investigation concerns the state-regulated conduct of the Law Firms and their
public-official employees. See Matter of N.Y. Republican State Comm., 138 Misc. 2d at 795.
B. The Subpoenas Are an Authorized Exercise of the Commission’s Section 63(8) Investigatory Power.
Although Section 6 alone supports the subpoenas, the subpoenas are also independently
authorized by the Attorney General’s broad authority under Section 63(8) to “inquire into
matters concerning” public peace, safety, and justice when directed by the Governor. Executive
Law § 63(8). By its plain terms, this statute empowers the designees of the Attorney General,
which here include certain members of the Commission, to subpoena any documents relevant to
the Commission’s investigation. Id.
20
This broad Section 63(8) investigatory power alone supports the Commission’s
investigation and subpoenas to outside employers. The Attorney General’s Section 63(8)
authority is not limited to the executive branch and extends to all matters concerning public
peace, safety, or justice. See Leg. Mem. at 27 (admitting that Section 63(8) authority extends
“beyond the Executive Branch”). As the Court of Appeals has explained, the Attorney General
may inquire into any matter within Section 63(8)’s “terms and its general purpose and policy,”
which cannot be interpreted with “a narrow [or] technical meaning.” Matter of Di Brizzi, 303
N.Y. at 214.
New York courts have accordingly upheld Section 63(8) subpoenas issued pursuant to
inquiries into precisely the same subjects under review by the Commission: weaknesses in laws
that combat public corruption, id. at 214; the effectiveness of laws addressing government ethics,
conflicts of interest, and campaign finance, Matter of N.Y. Republican State Comm., 138 Misc.
2d at 791-92, 798; and the activities of businesses in regulated industries such as lobbying, cf.
Matter of Sigety v. Hynes, 38 N.Y.2d 260, 268 (1975) (nursing home industry). There is
therefore no merit to the Legislators’ vague claim, raised only in their Complaint (¶¶ 34, 94), that
the Commission’s investigation does not address issues “severe” enough to warrant a Section
63(8) investigation. The Commission’s evaluation of laws that govern public corruption and
protect the public’s faith in their government falls squarely within Section 63(8)’s purview.
C. The Commission Properly Exercises Concurrent Authority Under Section 6 and Section 63(8).
Because the Legislature has clearly authorized the Commission’s subpoenas through
Section 6 and Section 63(8), the Law Firms and Legislators pivot and claim that the Commission
cannot exercise concurrent powers under both statutes. See Harris Mem. at 11-12; Leg. Mem. at
21
24-25; Compl. ¶¶ 36, 95. Although the Legislators do not explain why they believe that “joinder”
of these two complementary authorities is “improper” (see Compl. ¶ 95), the Law Firms assert
that the Attorney General cannot under Section 63(8) subpoena information related to legislators’
outside employment because the Governor allegedly cannot investigate “the Legislature”
pursuant to Section 6 (Harris Mem. at 11-12). The contentions of the Law Firms and the
Legislators are meritless.
As explained above, the Commission’s inquiry is into the various anticorruption laws,
regulations, and procedures administered by state agencies, and into the problems they confront;
the Governor is authorized to conduct such an investigation by Executive Law § 6. But in any
event the Governor’s power under Section 6 does not limit the Attorney General’s separate
authority under Section 63(8). In Section 63(8) the Legislature authorized the Attorney General
to inquire into certain matters of acute public concern when requested by the Governor. See
Matter of Di Brizzi, 303 N.Y. at 214-17. Once directed by the Governor to investigate, the
Attorney General is “an elected official in his own right” who has complete discretion in
conducting the inquiry. See id. at 213. Whatever restrictions Section 6 might place on the
Governor, they simply do not apply to the Attorney General when he acts under Section 63(8).
Nothing in Section 6 suggests that the Legislature intended to limit the independent and
separate authority it granted to the Attorney General in Section 63(8). Rather, Sections 63(8) and
6 “provide two different, but complementary, avenues” by which the Commission can
investigate and issue subpoenas. See Matter of Johnson v. Pataki, 91 N.Y.2d 214, 225 (1997)
(discussing § 63(2)). Put simply, the “procedural arrangement” about which the Law Firms and
Legislators complain (Harris Mem. at 11-12; see also Compl. ¶ 95)—a Commission with dual
Sections 6 and 63(8) investigatory authority—is authorized by law. See Matter of Di Brizzi, 303
22
N.Y. at 217-18 (Fuld, J. concurring) (commission could “no doubt” issue subpoenas pursuant to
“both” Section 6 and Section 63(8)); Matter of N.Y. Republican State Comm., 138 Misc. 2d at
795 (dual Sections 6 and 63(8) authorities “augment” one another). Indeed, this Court and the
Court of Appeals have summarily rejected a challenge to a subpoena issued pursuant to both
Section 6 and Section 63(8) in a case where the appellant argued, as the Law Firms and
Legislators do here, that one commission could not wield both of these statutory authorities. See
Greenspon v. Stichman, 12 N.Y.2d 1079, 1079-80 (1963) (reporter’s syllabus); Matter of
Greenspon v. Stichman, 18 A.D.2d 1053 (1st Dep’t 1963).
The cases relied upon by the Law Firms (Harris Mem. at 9, 11) are irrelevant because
they address assertions of implied powers that conflict with an express statutory scheme.4 In
People v. Grasso, for example, the court rejected the Attorney General’s assertion of implied
common-law authority to bring certain claims against the officers of a not-for-profit corporation,
holding that enactment of the Not-for-Profit Law had codified the powers of the Attorney
General in this area and displaced any preexisting implied common-law power to bring
nonstatutory claims that were “fundamentally inconsistent” with the statutory scheme. 11 N.Y.3d
64, 70-71 (2008).5 Here, by contrast, the Attorney General has exercised the power to issue
4 Matter of Office of the Attorney General (Detroit Diesel Corp.), also cited by the Law
Firms (Harris Mem. at 11), is similarly inapposite because it involved the preemption of State action by federal law. 269 A.D.2d 1, 10-11 (1st Dep’t 2000).
5 See also Matter of Diamond Asphalt Corp. v. Sander, 92 N.Y.2d 244, 259, 264-66 (1998) (city agency lacked power to bypass public-bidding rules under charter amendment adopted after express statutory cutoff date even though amendment embodied historically accepted bypass power); Liao v. N.Y. State Banking Dep’t, 74 N.Y.2d 505, 510 (1989) (agency could not reject license based on factor not “explicitly enumerated” in authorizing statute); Matter of Tierney v. Cohen, 268 N.Y. 464, 470-71 (1935) (city’s attempt to fund project through agency contradicted “clear wording” of statute authorizing construction using taxes or city bonds); Matter of Temporary State Comm’n on Living Costs & Econ. v. Bergman, 80 Misc. 2d
(continued on next page)
23
subpoenas expressly conferred by the Legislature in Section 63(8), and the Law Firms claim that
the Moreland Act impliedly prohibits him from exercising this statutory power. Neither the Law
Firms nor this Court can alter the Legislature’s policy judgment to expressly empower the
Attorney General, through the Commission, to investigate any matter of public peace, safety, or
justice, when directed to do so by the Governor. See Matter of Di Brizzi, 303 N.Y. at 214. The
Governor’s powers under Section 6 and the Attorney General’s authority under Section 63(8) in
no way limit one another.
D. The Funding of the Commission’s Investigation Is Consistent with Law, and in Any Event Does Not Invalidate the Subpoenas.
The Legislators and some of the Law Firms also claim that the subpoenas are invalid
because the Commission may not act at all in the absence of funds appropriated by the
Legislature for the purposes of a Section 63(8) investigation. Leg. Mem. at 26-27; Comp. ¶¶ 31-
32; see, e.g., Mem. of Law of Sahn Ward Coschignano & Baker, PLLC, at 9. They are mistaken
for three independent reasons.
First, the Commission’s investigation is conducted by staff members who are either
volunteers or are state employees paid through existing appropriations. The use of pro bono work
or cross-designation of state employees is common and fully authorized by Section 6 and Section
63(8). See, e.g., Executive Order (Spitzer) No. 22, 9 N.Y.C.R.R. § 6.22 (2008) (drawing staff for
Section 6 commission investigating property taxes from personnel of “the Office of Real
Property Services, the Governor’s Office of Regulatory Review, the Division of the Budget and
the Department of State,” at the Governor’s discretion); Executive Order (Paterson) No. 11, 9
448, 451, 453 (Sup. Ct. N.Y. County 1975) (statutory authority to examine “cost of consumer commodities” did not include investigation with “sole purpose” of uncovering “criminal acts”).
authorization “no matter how narrow, germane and infused with the public interest”).
The contrary argument by the Legislators and Law Firms has already been rejected by the
Court of Appeals. The Legislators and Law Firms echo an argument made by the dissenters in Di
Brizzi, who believed that the same funding language quoted by the Legislators and Law Firms
created a need for “prior legislative authorization” for a Section 63(8) inquiry. 303 N.Y. at 223
(Dye J., dissenting). But the majority opinion in that case concluded that the commission’s
inquiry and subpoenas were fully authorized by Section 63(8), see id. at 216-17, despite the
Legislature’s failure to provide the specific funding that the dissenters believed was necessary.
The Legislators also misconstrue the history of the Feerick Commission in claiming that
that commission “encountered” any statutory “legislative check” on its funding. Leg. Mem. at
27. When the Legislature’s leaders refused to provide funding to the Feerick Commission, the
6 The Legislators’ Complaint attempts to assert a separate cause of action seeking
declaratory relief under State Finance Law § 123-e, see Compl. at 23, but this statute “does not create a substantive cause of action,” Matter of Lancaster Dev. Inc. v. Power Auth., 145 A.D.2d 806, 807 (3d Dep’t 1988); Mylod v. Pataki, 171 Misc. 2d 556, 562 (Sup. Ct. Albany County 1996). In any event, this claim is based on the same arguments regarding Section 63(8)’s funding provision and must be rejected for the reasons explained above.
26
Governor did not believe that such funding was required and vowed to raise money himself.
Feerick, supra, at 158. Eventually, the Feerick Commission agreed to accept legislative funding
on the condition that these monies would not be used to investigate the Legislature’s affairs. Id.
This agreement shows, at most, that the Feerick Commission needed special funding badly
enough that it was willing to accept conditions, not that the Legislature may always unilaterally
block an inquiry under Section 63(8). Indeed, John D. Feerick, the chair of that commission and
then-dean of Fordham Law School, lamented that:
This limitation, unfortunately, itself damaged confidence in government, since it was subject to the interpretation that members of the Legislature had something to hide. It also was unnecessary because the [c]ommission’s Executive Order did not reach the affairs of legislators as legislators, as opposed to their private activities.
Id. at 158-59. And the Feerick Commission, which was jointly authorized under Sections 6 and
63(8), continued its investigation even after expending all of the agreed-upon funding from the
Legislature by relying on volunteer work. Feerick, supra, at 161 n.15. Thus, the history of this
commission confirms that Section 63(8)’s funding language does not give the Legislature a
unilateral veto over a commission’s investigatory authority, and that the Commission may
conduct its investigation through volunteers and state employees.
Finally, the enforceability of the subpoenas would not be negated even if there were
some issue with the Commission’s funding, which there is not. Neither Section 6 nor Section
63(8) require as a prerequisite to the Commission exercising its subpoena powers that it receive
special appropriations from the Legislature. Under the contrary theory asserted by the Legislators
and the Law Firms, any issue with the funding for one employee’s salary would render illegal all
actions of his or her state-agency employer. That is not the law.
27
POINT II
THE COMMISSION DOES NOT VIOLATE SEPARATION OF POWERS BY EXERCISING THE POWERS GRANTED TO IT BY THE LEGISLATURE
Responds to Law Firms’ Motions to Quash; Legislators’ Motion to Quash; and Legislators’ Complaint
The Legislators’ lofty and repeated invocations of “separation of powers” principles
(Leg. Mem. at 19-23; Compl. ¶¶ 61-63, 67-69, 88-89), which the Law Firms echo (Harris Mem.
at 8-15), present nothing more than a rehash of their failed arguments regarding the scope of the
Commission’s dual statutory authorities. Separation of powers can be violated “only when the
Executive acts inconsistently” with its constitutional or statutory authorities or usurps legislative
prerogatives. Clark v. Cuomo, 66 N.Y.2d 185, 189 (1985). Here, however, the Legislature chose
to pass two separate statutes granting broad investigative discretion to the Governor and
Attorney General, along with subpoena power. The Commission’s lawful exercise of these
authorities, see supra, at 17-26, by definition cannot violate separation of powers. See Matter of
Johnson, 91 N.Y.2d at 226; see also Statharos v. N.Y. City Taxi & Limousine Comm’n¸ 198 F.3d
317, 321-22 (2d Cir. 1999) (commission’s exercise of power “specifically authorized” by statute
did not “impermissibly arrogate[]” legislative powers).
Contrary to the Legislators’ contentions (Leg. Mem. at 20-21; Compl. ¶¶ 51-55, 68, 89),
neither the Executive Order nor the Commission’s subpoenas seek to enact or block legislation
or otherwise “usurp the Legislature’s authority” (Leg. Mem. at 20). The Commission is a “fact-
finding body” that seeks, pursuant to its statutory powers, to “subpoena and collect any
information reasonably related to” its goal of analyzing weaknesses in the current ethics regime.
See Matter of N.Y. Republican State Comm., 138 Misc. 2d at 796. Rather than “promulgate any
rules” or policies regarding ethics, Matter of Johnson, 91 N.Y.2d at 226, the Commission is
28
gathering facts and presenting recommended legislative solutions to the problems it uncovers.
The Legislature is then free to exercise its constitutional prerogative to decide whether to enact
statutory changes.
The circumstances here are therefore completely unlike those presented in Rapp v. Carey,
44 N.Y.2d 157 (1978), on which the Legislators rely (Leg. Mem. at 20-21). In Rapp, the Court of
Appeals concluded that the Governor could not by executive order dictate a new “policy”
mandating that state employees file “multidetailed personal financial statements” and “abstain
from various political and business activities” because such rules nullified the existing code-of-
ethics statute. 44 N.Y. 2d at 160. No such attempt to promulgate a new conflicts-of-interest
policy exists here. Indeed, the Court of Appeals in Rapp recognized that while the Governor
cannot institute new state policies, he is empowered to investigate under Section 6 or to direct a
Section 63(8) inquiry. Id. at 162.
The Legislators state that the investigations in Di Brizzi and Sigety “were motivated by
specific allegations of misconduct” (Leg. Mem. at 21) to infer that separation of powers limits
the Commission to inquiring into instances of wrongdoing. That is incorrect. As with the
commissions in Di Brizzi and Sigety, a disturbing level of misconduct—including a slew of
indictments involving legislators using outside employment to facilitate their crimes—
demonstrated the need for a reevaluation of the weaknesses in government ethics rules. See
Preliminary Report, supra, at 4-5. But as in Di Brizzi and Sigety, the Commission has a broad
reform.7 Matter of Di Brizzi, 303 N.Y. at 216; see also Matter of Sigety, 38 N.Y.2d at 264-66.
The subpoenas in Di Brizzi and Sigety were “not issued to legislators or their employers” (Leg.
Mem. at 21) because the private conduct of legislators or their outside employers was apparently
not relevant to those inquiries. See Matter of Di Brizzi, 303 N.Y. at 211 (organized crime and
government); Matter of Sigety, 38 N.Y.2d at 264 (quality of care provided by private nursing
homes). Here, by contrast, the private employment of legislators is reasonably relevant to the
Commission’s investigation and properly subject to subpoena. See infra, at 35-39.
Indeed, the Legislators and Law Firms twist the principle of separation of powers beyond
recognition by claiming that all information remotely relevant to the nonlegislative conduct of
outside employers and their legislator-employees is exempt from disclosure pursuant to lawfully
issued subpoenas. The Legislators even go so far as to claim that the empanelling of the
Commission and any of its “conduct” that “pertains to the Legislature” are unconstitutional.
Compl. ¶¶ 90, 97(1)-(2). The performance of legislative duties is protected from interference by
“other branches of government” through the Speech and Debate Clause. But that narrow
constitutional check applies only to “legislative acts” that are “an integral part of the deliberative
and communicative” legislative processes, Gravel v. United States, 408 U.S. 606, 625 (1972),
not to working for a private business or billing time to private clients. See People v. Ohrenstein,
77 N.Y.2d 38, 54 (1990); see also Hutchinson v. Proxmire, 443 U.S. 111, 127 (1979) (speech-
and-debate immunity serves to “protect the integrity of the legislative process,” not the “personal
or private” interests of legislators (quotation marks omitted)). Information on nonlegislative
7 The Deputy Attorney General in Sigety also had the authority pursuant to Executive
Law § 63(3) to prosecute certain crimes, but the court in that case carefully noted that this distinct prosecutorial role did not limit the deputy’s fact-finding power under Section 63(8). 38 N.Y.2d at 267.
30
topics is not subject to speech-and-debate immunity and does not implicate any separation-of-
powers concerns.
Both the Legislators and the Law Firms further assert that the subpoenas violate
separation of powers because media comments allegedly show that the Governor’s subjective
motivation in appointing the Commission was “to coerce the Legislature into passing” ethics
reform. Harris Mem. at 13-15; Leg. Mem. at 22-23; Compl. ¶¶ 5, 62, 68, 89. This argument fails
as a matter of fact and law.
First, neither the Commission nor the challenged subpoenas are designed to harass
individual legislators. The Commission’s mandate is to build the factual case for reforming laws
that govern public corruption, conflicts of interest, and campaign finance. Courts have long
upheld Section 6 or Section 63(8) investigations conducted for this purpose, which aid the
Governor in fulfilling his constitutional duties to report “the condition of the state” to the
Legislature, “recommend such matters to it as he shall judge expedient,” and “take care that the
laws are faithfully executed.” N.Y. Const. art. IV, § 3; see Matter of Di Brizzi, 303 N.Y. at 215-
16. Indeed, New York governors have repeatedly utilized their authority under the Moreland Act
to support proposed legislative reforms after the Legislature refused to take action. Governor
Hughes appointed the very first Moreland Commission, for example, after the Senate refused his
request to remove the Superintendent of Insurance, and that commission later recommended to
the Senate that the Superintendent be replaced. See Breuer, supra, at 37-38; see also Public
Papers of Alfred E. Smith, supra, at 447-48, 456-63 (establishment of Moreland Commission to
investigate milk pricing after Senate refused to consider dairy-industry reforms).
Moreover, the Commission’s subpoenas to the Law Firms are just one small part of an
extensive investigation that includes the efficacy of the BOE, campaign-finance reform, and
31
prosecutorial tools to combat corruption. In furtherance of this inquiry, the Commission issued
almost two-hundred subpoenas and information requests, collected millions of pages of
documents, conducted dozens of interviews and depositions, heard testimony, and issued the
ninety-eight-page Preliminary Report. This in-depth endeavor is not about the legislators
themselves, but about trying to convince a majority of the Legislature through facts and
recommendations that it should enact the Commission’s wide-ranging proposals. At bottom, the
Legislators’ and Law Firms’ “coercion” claim is really a complaint that the Commission’s
factual findings might so strongly demonstrate the need for legal reforms that voters will press
the Legislature to act. That is not a separation-of-powers concern; it is a reflection of a properly
functioning democracy.
Second, the subjective motivations of the Governor are legally irrelevant. Where, as here,
“the Governor acts by Executive Order pursuant to a valid grant of discretionary authority,” the
only proper question for the Court is whether the Governor’s action is constitutionally and
statutorily authorized; the Governor’s subjective motivations have no bearing on that question.
See Matter of Johnson, 91 N.Y.2d at 223; see also Matter of Alessi v. Pataki, 21 A.D.3d 1141,
1143 (3d Dep’t 2005). The separation-of-powers claims thus again boil down to one simple
question: whether appointment of the Commission or issuance of the subpoenas exceeded both
of the distinct statutory authorities granted by the Legislature to the Governor and the Attorney
General. Because the answer to that question is no, the claims of the Legislators and the Law
Firms must be rejected.
Indeed, the subjective motivations of the Governor are particularly “irrelevant” to the
enforceability of subpoenas issued by the Commission. The Commission issues subpoenas by the
unanimous agreement of its three Co-Chairpersons, not by the direction of the Governor.
32
Executive Order ¶ V. The Governor’s personal intentions when he first established the
Commission are therefore not relevant because the Governor chose to create a Commission with
independent authority to make investigatory decisions that he does not control. Cf. SEC v.
Knopfler, 658 F.2d 25, 26 (2d Cir. 1981) (per curiam) (rejecting motion to quash subpoena based
on claim that one investigator was improperly motivated because subpoena was issued by the
SEC, not the investigator). The Commission’s Co-Chairpersons exercised this power in issuing
the subpoenas. Moreover, the Attorney General has independent discretion in conducting an
investigation pursuant to Section 63(8) after the Governor directs an inquiry. The Governors’
subjective motivations in first initiating a Section 63(8) investigation also have no relevance to
the Attorney General’s exercise of his own discretion. See Matter of Di Brizzi, 303 N.Y. at 213-14.
Third, courts generally avoid such parsing of the subjective intentions of public officers
exercising their discretion, and instead evaluate challenges to investigatory subpoenas under a
well-established objective standard: the subpoenas must be upheld if there is “authority,
relevancy, and some basis for inquisitorial action.” N.Y. Shredding Corp. v. N.Y. City Dep’t of
Investigation, 184 Misc. 2d 174, 184 (Sup. Ct. N.Y. County 2000) (quotation marks omitted).
The investigators’ personal motivations in issuing the subpoenas are “irrelevant” to the court’s
inquiry. See N.Y. Temporary State Comm’n on Lobbying v. Crane, 2007 N.Y. Slip. Op.
30795(U) (Sup. Ct. Albany County 2007), aff’d, 49 A.D.3d 1066 (3d Dep’t 2008); see also
Matter of Cunningham v. Nadjari, 39 N.Y.2d 314, 318 (1976) (even a “plausible argument” of
intent to “harass” cannot justify quashing subpoena if information is within the “relevant scope
of inquiry”). Because the Commission here seeks information relevant and material to its
investigation it has “necessarily mitigate[d] against” any risk of alleged “unjustified harassment.”
See N.Y. Shredding, 184 Misc. 2d at 184.
33
The Court of Appeals long ago explained this principle in Matter of Hirshfield v. Craig,
where the city legislature had authorized a commissioner to conduct certain investigations as
directed by the mayor or as the commissioner deemed in “the best interests of the city.” 239 N.Y.
98, 105 (1924) (quotation marks omitted). The Court analyzed whether the commissioner acted
within the authority granted by the city charter, but refused to consider whether he had issued
subpoenas “for the purpose of harassing and annoying the Comptroller.” Id. at 106, 110.
Utilizing objective criteria makes perfect sense in light of the “difficulty, if not futility” of basing
the legal validity of investigatory subpoenas “on judicial determinations of the subjective
motivation” of public officers. See People v. Robinson, 97 N.Y.2d 341, 350 (2001) (quotation
marks omitted). For this reason, objective standards, rather than subjective intentions, often
control a court’s evaluation of investigatory action. For instance, the constitutionality of a traffic
stop is judged by whether the officer had probable cause to believe that a traffic violation
occurred; the officer’s “primary motivation” in making the stop is irrelevant. Id.; see also
Brigham City v. Stuart, 547 U.S. 398, 404 (2006) (“officer’s subjective motivation” is immaterial
to determining if exigent circumstances justify warrantless search under the Fourth Amendment).
POINT III
THE SUBPOENAS ARE PROCEDURALLY PROPER
Responds to Law Firms’ Motions to Quash; Legislators’ Motion to Quash; and Legislators’ Complaint
The Law Firms and the Legislators both raise the same procedural objection that the
Commission may not exercise its subpoena authority until it has publicly disseminated
“procedures and rules” related to transparency and privacy. Harris Mem. at 15-16; Leg. Mem. at
28-30; Compl. ¶¶ 73-74. That objection has no support in law. The subpoenas were issued
34
pursuant to Executive Law Sections 6 and 63(8), and neither statute requires the adoption of any
particular procedures.
Nor does the Executive Order establishing the Commission condition its exercise of
subpoena authority on the adoption of procedures and rules. Rather, the Executive Order
authorizes the Co-Chairpersons of the Commission to adopt, by unanimous vote, “such
procedures and rules as they believe necessary” to the Commission’s exercise of authority,
including rules “designed to provide transparency” while protecting privacy. Executive Order
¶ V (emphasis added). Read in context, this is a grant of authority to the Co-Chairpersons to
promulgate procedures they unanimously deem necessary to balance transparency and privacy,
not a requirement that they promulgate any such procedures, much less a requirement that they
do so before exercising the Commission’s statutorily defined subpoena power. In any event, even
if the Governor’s Executive Order had required such procedures and rules, which it does not, the
Governor may not by executive order limit the Attorney General’s separate and independent
subpoena authority under Section 63(8). See Matter of De Brizzi, 303 N.Y. at 213 (executive
order requesting inquiry by the Attorney General under Section 63(8) could not deprive Attorney
General of discretion granted by that statute). Deputies of the Attorney General exercised this
independent discretion in issuing the subpoenas here.
Although the Commission is not obliged to adopt procedures, certain statutory provisions
that balance transparency and privacy already govern the Commission’s activities. First,
Section 63(8) provides that it shall be a misdemeanor to “disclose to any person other than the
governor or the attorney-general the name of any witness examined or any information obtained
upon such inquiry.” Second, the Commission’s inquiry is governed by Section 73 of the Civil
Rights Law, which creates a “Code of fair procedure for investigating agencies” that applies to
35
the Commission. These statutory rules protect the interests of any witness required to provide
testimony or information to the Commission. Moreover, the Executive Order requires that each
subpoena be unanimously approved by the three Co-Chairpersons. The subpoenas issued to the
Law Firms were so approved and issued consistent with all applicable requirements. See Perry
Aff. ¶ 18. The fact that the Governor authorized the Commission’s Co-Chairpersons to provide
further rules they deemed necessary does not mean that the existing rules are insufficient or that
more rules are needed.
POINT IV
THE COMMISSION HAS AN AMPLE FACTUAL BASIS FOR THE SUBPOENAS
Responds to Law Firms’ Motions to Quash and Legislators’ Complaint
The Commission is empowered to require the production of any “books, records,
documents or papers relevant or material to [its] inquiry.” Executive Law § 63(8) (emphasis
added); see also id. § 6. This broad standard authorizes the Commission to subpoena materials
that bear any “reasonable relation to the subject matter” and “public purpose” of its investigation.
Anheuser-Busch, Inc., 71 N.Y.2d at 332 (quotation marks omitted); see also, e.g., Matter of La
Belle Creole Int’l, S.A. v. Attorney General, 10 N.Y.2d 192, 196 (1961). Moreover, the
Commission is entitled to a presumption that it is “acting in good faith” and that the materials it
seeks are reasonably related to its investigatory goals. Matter of Hogan v. Cuomo, 67 A.D.3d
1144, 1146 (3d Dep’t 2009) (citing Anheuser-Busch, Inc., 71 N.Y.2d at 332). The Commission
has more than a sufficient factual basis to subpoena information regarding the legislators’ outside
employment, contrary to the arguments of the Law Firms and the Legislators in their declaratory-
judgment Complaint. See Harris Mem. at 16-19; Compl. ¶¶ 47-49.
36
The Subpoenas Seek Information Reasonably Related A.to the Commission’s Investigatory Purposes.
The Commission is a “fact-finding body” tasked with comprehensively examining the
weaknesses in current government-ethics laws, such as PIRA, and the regulations and procedures
of the two state agencies that oversee those laws, JCOPE and BOE. See Matter of N.Y.
Republican State Comm., 138 Misc. 2d at 795. This broad purpose is not limited to investigating
particular misdeeds. Id. at 795-96; see Congel, 156 A.D.2d at 278. Rather, the Commission’s
investigation is intended to produce a comprehensive understanding of the operation and
enforcement of existing government-ethics laws in order to evaluate how those laws may be
reformed to address potential weaknesses or to better promote the public’s confidence in
government. The subpoenas cannot be quashed unless “the futility” of this broad investigation
“to uncover anything legitimate is inevitable or obvious or where the information sought is
utterly irrelevant to any proper inquiry.” Anheuser-Busch, Inc., 71 N.Y.2d at 331-32 (citations
and quotation marks omitted).
Information about the Law Firms’ relationships with their public-official employees, as
well as the lobbying and state-related business of the firms and their clients, is central to the
Commission’s investigatory purpose. See Executive Order ¶ II; see Matter of N.Y. Republican
State Comm., 138 Misc. 2d at 796. One of the focuses of the Commission’s investigation is
examining whether PIRA requires sufficient disclosure to combat concerns about conflicts of
interest and the appearance of corruption. The Legislators therefore wrongly claim that “there is
no question about the adequacy” of current laws governing disclosure of legislators’ outside
income. See Compl. ¶ 6. To the contrary, after the first round of PIRA filings, the public
expressed extreme skepticism about legislators reporting large private salaries without adequate
explanation of the work they provide or the clients that they serve. See, e.g., Kaplan & Hakim,
37
supra. Indeed, only one legislator disclosed a single client with state business for 2012. Without
knowing the “until now undisclosed” identities of the legislators’ clients or their state-related
businesses, the Commission cannot evaluate whether there are serious conflicts of interest that
remain hidden from the public or what legislative changes could remedy such problems. See
Matter of N.Y. Republican State Comm., 138 Misc. 2d at 796; Congel, 156 A.D.2d at 278. Put
simply, in order to make a fully informed decision about whether to recommend more
disclosures, the Commission reasonably seeks to discover what those further disclosures might
reveal.
Contrary to the Law Firms’ contentions (Harris Mem. at 20-21), information regarding
the state-related business of the Law Firms and their clients is relevant to the Commission’s
inquiry even if that business is not directly connected to a public-official employee. Under
familiar profit-sharing arrangements employed at many law firms, legislators may gain
substantial income from any of their firms’ clients, giving them an incentive to advance their
employers’ general financial position through their positions of public trust. Yet PIRA requires
disclosure only where the legislator-employee personally provides services to clients with state
business or refers such clients to the firm. See Public Officers Law § 73-a. To determine whether
PIRA’s limited disclosures are adequate, the Commission reasonably decided to inquire into
potential conflicts of interest outside of PIRA’s current scope of disclosure—including from
clients and State-related business not directly connected to a legislator-employee. Certainly this
information is “in some measure relevant” to the Commission’s inquiry, which is “all that is
required” to uphold and compel compliance with the subpoenas. Congel, 156 A.D.2d at 278
(brackets and quotation marks omitted).
38
The Law Firms’ argument (Harris Mem. at 20-21) that their potential state-related
contacts with “low-level government employees” are not “relevant and necessary” to the
Commission’s inquiry fares no better. As long as the materials sought are reasonably relevant to
the Commission’s inquiry, it is not for the Law Firms or the courts “to determine whether the
subpoenaed materials are necessary.” Congel, 156 A.D.2d at 278. In any event, this assertion is
factually misguided—the Commission needs a complete picture of the Law Firms’ state business
to know which contacts trigger conflicts of interest and should be covered by further regulation,
and which do not and accordingly need not be the subject of recommended reforms.
In light of the Commission’s broad mission to completely evaluate the current ethics
laws, regulations, and procedures overseen by JCOPE and BOE, the other generic claims of the
Law Firms and the Legislators regarding materiality and relevance (Harris Mem. at 20; Compl.
¶¶ 9, 49) also fail. See Matter of N.Y. Republican State Comm., 138 Misc. 2d at 797. The
Commission has already addressed the Law Firms’ specific concern that the subpoenas call for
“all documents” regarding the Law Firms’ relationships with legislator-employees by tailoring
two requests to documents sufficient to show these relationships.8 See infra, at 45. Some Law
Firms claim that the Commission’s subpoenas or letters do not sufficiently explain the relevancy
of the information sought (see, e.g., Mem. of Law of Pet. Farrell Fritz, P.C. (“Fritz Mem.”) at 14-
16), but the Commission need only “come forward with a factual basis” after the subpoenas are
challenged. See Matter of Condon v. Inter-Religious Found. for Cmty. Org., Inc., 18 Misc. 3d
8 The Law Firms and Legislators incorrectly claim that building-access records are
irrelevant to the Commission’s inquiry. Harris Mem. at 22; Leg. Mem. at 22. Documents relating to attendance are directly connected to public concerns about legislators being paid exorbitant salaries despite providing few, if any, actual services to their employers. In any event, the Commission has already narrowed its request for these records. See infra, at 45.
39
874, 877-78 (Sup. Ct. N.Y. County), aff’d, 51 A.D.3d 465 (1st Dep’t 2008). Under the
presumption of good faith accorded to the Commission, there is more than a sufficient basis here
to establish the reasonable relevancy of the materials sought. See Matter of Oncor Commc’ns,
Inc. v. State, 165 Misc. 2d 262, 268 (Sup. Ct. Albany County 1995), aff’d, 218 A.D.2d 60 (3d
Dep’t 1996).
No Suspicion of Wrongdoing Is Required To Support the Subpoenas. B.
The Law Firms argue that the subpoenas are “a fishing expedition” because the
Commission does not have “evidence of wrongdoing” by particular firms or their employees, a
contention also hinted at by the Legislators’ Complaint. Harris Mem. at 16-18; Compl. ¶¶ 1, 6.
This contention fundamentally misunderstands the Commission’s purpose and statutory
authority. “No specific complaint of wrongdoing is required to trigger the Commission’s
reasonable investigation,” Matter of N.Y. Republican State Comm., 138 Misc. 2d at 796, because
the aim of the Commission is not to sanction individual violations of the law, but rather to
understand how the legal and regulatory regime governing corruption, conflicts of interest,
lobbying, and campaign finance currently works—and how it may be improved.9
The Law Firms are therefore wrong in asserting (Harris Mem. at 17-18) that the
subpoenas are based on individualized suspicions of wrongdoing, inferred either from recent
public-corruption scandals or from the refusal of legislators to respond voluntarily to the
9 The Law Firms speculate that the subpoenas might be “part of a criminal inquiry” that requires a factual basis akin to “probable cause.” Harris Mem. at 18-19. They point to an off-the-cuff comment by one of the Commission’s Co-Chairpersons, made during a radio interview (id. at 19 n.40), that does not alter the Commission’s civil fact-finding mandate. The Commission is not authorized “to conduct a criminal investigation against a particular person,” see Matter of Di Brizzi, 303 N.Y. at 217, and indeed must refer all potential violations of law that it uncovers to the proper prosecutorial authorities, Executive Order ¶ VI; see Congel, 156 A.D.2d at 279.
40
Commission’s letter requests for information. The fact that certain legislators have used their
private employment, including at law firms, as a funnel for bribery and kickbacks highlights the
need for a reevaluation of the ethics laws, including those governing outside employment. But
learning where the current laws and enforcement practices are working as planned is just as
important to the Commission’s goals as learning where they are not working. A focus purely on
the system’s dysfunctions would provide a distorted picture of the existing government-ethics
regime, hampering the Commission’s ability to understand the strengths and weaknesses of
current laws and enforcement practices. By contrast, knowing where the current laws are more
and less effective accomplishes several purposes: it promotes the Commission’s ability to
propose appropriate reforms to further enhance transparency and confidence in government; it
informs the Governor’s ability to report to the Legislature “matters affecting the condition of the
[S]tate”; and it focuses enforcement decisions by the Governor and Attorney General on the most
critical issues, while targeting future legislative reform efforts toward genuine problems. See
Matter of Di Brizzi, 303 N.Y. at 216. The fact that the Commission’s subpoenas do not solely
target suspected wrongdoing is thus not a flaw—the very breadth of the investigation
underscores the Commission’s intent to study and address government ethics systemically, rather
than case by case.
41
POINT V
THE COMMISSION’S TARGETED SUBPOENAS DO NOT REQUEST PRIVILEGED INFORMATION AND ARE NOT OVERBROAD
Responds to Law Firms’ Motions to Quash and Legislators’ Complaint
The “party moving for a protective order bears the burden of demonstrating that the
disclosure sought is improper, and must offer more than conclusory assertions that the requested
disclosure is overbroad or unduly burdensome.” Hire Counsel N.Y. LLC v. Owens, 2012 N.Y.
Slip Op. 32009(U), at *5 (Sup. Ct. N.Y. County 2012); see also Roman Catholic Church of the
Good Shepherd v. Tempco Sys., 202 A.D.2d 257, 258 (1st Dep’t 1994). The Law Firms have not
come close to satisfying this burden. They argue that the subpoenas (1) seek privileged or
confidential information, and (2) are overbroad, vague, unduly burdensome, and oppressive.
While the Legislators focus on only the first of these claims, both arguments fail.
A. The Subpoenas Do Not Seek Any Information Protected from Disclosure.
There is no merit to the claim of the Law Firms or the Legislators that the subpoenas seek
materials protected by the attorney-client privilege or client-confidentiality rules. See Harris
Mem. at 23-25; Compl. ¶¶ 1, 47-48. The subpoenas on their face do not seek any privileged or
confidential material, providing instead that such documents can be withheld and listed in an
explanatory affirmation. See, e.g., Subpoena Duces Tecum to Harris Beach PLLC ¶ B.7 (Perry
Aff., Ex. D). Indeed, the Commission explained via letter to the Law Firms that it does “not
seek” documents protected by “the attorney-client privilege or Rule 1.6 of the Rules of
Professional Conduct” and that documents “subject to these protections . . . should be redacted or
withheld through use of a privilege log.” Letter from K. Donovan & D. Perry to K. Sleight (Perry
Aff., Ex. G). Any disputes over potentially privileged information can be litigated if the
42
Commission raises specific objections to the Law Firms’ privilege logs; the possibility of such
disputes does not support a motion to quash the subpoenas altogether. See Matter of Nassau
County Grand Jury Subpoena Duces Tecum Dated June 24, 2003 (Spitzer), 4 N.Y.3d 665, 679
(2005).
Moreover, contrary to the Law Firms’ assertions, information that merely identifies
clients and fee arrangements is not protected as privileged or confidential.10 See id.; Matter of
Claydon, 103 A.D.3d 1051, 1053 (3d Dep’t 2013). Documents such as retainer agreements,
engagement letters, billable hour reports, client lists, or materials containing general descriptions
of client services are also not usually protected. Matter of Nassau County Grand Jury Subpoena,
4 N.Y.3d at 670-72, 678-79; see also In re 50 Pine Co., 317 B.R. 276, 286 (S.D.N.Y. Bankr.
2004). As the New York City Bar Association has explained, requiring attorney-legislators to
disclose their sources of outside income and clients “will not violate the rules governing attorney
conduct and will go a long way toward restoring public confidence in New York State’s
governing process and the independence of legislators.” N.Y. City Bar Ass’n, Reforming New
York State’s Financial Disclosure Requirements for Attorney-Legislators 2 (Jan. 2010).
Indeed, despite arguing that identifying their clients might theoretically violate client
confidences in some instances, the Law Firms’ six separate briefs do not provide any facts
suggesting that such circumstances actually exist. In any event, the confidentiality rules’ narrow
protection of information “likely to be embarrassing or detrimental to the client,” N.Y. Rules of
10 The Law Firms’ reliance on Matter of Pavillion Agency Inc. v. Spitzer, 9 Misc. 3d 626
(Sup. Ct. N.Y. County 2005), is misplaced. In the narrow context of an investigation into potential Human Rights Law violations, the Pavillion court did not require disclosure of the identities of prospective employers of domestic workers because the Legislature had sought to prevent government interference with this precise type of personal employment relationship. Id. at 633. No such legislative protection exists for the identities of the Law Firms’ clients.
43
Prof’l Conduct 1.6(a) (22 N.Y.C.R.R. pt. 1200), does not generally apply to client names, see
N.Y. City Bar Ass’n, supra, at 4-5 (client names might be confidential on a case-by-case basis in
matters involving crimes, family law, or confidential business transactions such as hostile
takeovers).11
The Law Firms’ conjectural concern about competitive disadvantages that might result
from complying with the subpoenas (see Fritz Mem. at 19) is equally meritless. They rely on an
inapposite case that involved a business disclosing information to its competitor, see Matter of
Reuters Ltd. v. Dow Jones Telerate, Inc., 231 A.D.2d 337, 344-45 (1st Dep’t 1997), not to a
governmental fact-finding body tasked with an important public investigation. Under the Law
Firms’ theory, no business could ever be required to provide information in response to
government inquiries because of a theoretical impact on its competitive position. That is not the
law. Similarly unavailing is the conclusory claim by the Legislators and one Law Firm that the
Commission’s subpoenas to nonlegal outside employers sought proprietary or confidential
information. See Compl. ¶¶ 5, 48; Ruskin Moscou Faltischek, P.C. Mem. of Law in Support of
Pet. to Quash, at 19-20. Neither the Legislators nor the Law Firm have asserted any facts
suggesting that the information requested, such as revenue and salary information, is
confidential.
11 One Law Firm asserts in a footnote (Fritz Mem. at 17 n. 12) that the Commission seeks
“client files” or documents that belong to the firm’s clients, without specifying which documents or even categories of documents they think are responsive to the subpoena and belong to the client. Regardless, this is a rehash of the Law Firms’ privilege arguments that should be dealt with later if the Commission objects to the firms’ privilege logs. This assertion is in any event incorrect. The subpoenas seek business and financial records that belong to the firm. See Bronx Jewish Boys v. Uniglobe, Inc., 166 Misc. 2d 347, 349-50 (Sup. Ct. N.Y. County 1995).
44
B. The Subpoenas Are Not Unduly Burdensome, Overbroad, Vague, or Oppressive.
The Law Firms’ conclusory allegations that the subpoenas are burdensome or overbroad
are equally meritless. They provide no support for their claim that compliance “would be
onerous and all-consuming” (Harris Mem. at 26), such as explaining the steps that they would
need to take to respond to the subpoenas or the time and cost that such steps might entail.12 In
any event, the subpoenas are “not rendered invalid” even if they do require “production of a
substantial number of documents.” Am. Dental Co-op., Inc. v. Attorney General, 127 A.D.2d
274, 282 (1st Dep’t 1987). “Relevancy, and not quantity,” determines the subpoenas’ validity. Id.
The subpoenas target material relevant to the Commission’s inquiry and are therefore not
overly broad or burdensome. See Matter of N.Y. Republican State Comm., 138 Misc. 2d at 796-
97. The requests are reasonably limited to information within a four-year period. See id. And the
subpoenas seek information regarding the Law Firms’ relationships with their legislator-
employees, the firms’ lobbying and state-related business, and campaign contributions—all
topics central to the Commission’s investigation. In urging otherwise, the Law Firms and
Legislators simply repeat their failed arguments regarding the factual basis for the Commission’s
inquiry. They assert that PIRA did not require disclosure of all of the legislators’ clients (Harris
Mem. at 28; Compl. ¶ 22), but this potential weakness in current law is precisely why the
Commission needs to understand the undisclosed sources of legislators’ outside income.
12 The Law Firms’ argument that the subpoenas’ standard definitions somehow require
“production of never transcribed oral communications between or among persons no longer” employed at the firms (Harris Mem. at 26) is simply incorrect. The Commission specifically instructed that where “documents do not exist or are not in the firms’ possession, no document production is necessary.” Letter from K. Donovan & D. Perry to K. Sleight & J. Wicks (Perry Aff., Ex. G).
45
Legislators’ alleged compliance with current public disclosure law (Fritz Mem. at 25; Compl.
¶¶ 25, 38-39) does not negate their legal obligation to comply with the Commission’s subpoenas.
Nor can the Law Firms complain that the potential breadth of their own state-related business or
that of their clients “makes disclosure burdensome when it is th[e] very scale” of such activities,
see Matter of N.Y. Republican State Comm., 138 Misc. 2d at 796, which is the concern of the
Commission.
The Law Firms’ claims of overbreadth, undue burden, and vagueness are particularly
inappropriate and largely moot because the Commission has already further narrowed the
subpoenas. The Commission voluntarily modified its requests to resolve many of the issues
about which the Law Firms now complain (Letter from K. Donovan & D. Perry to K. Sleight &
J. Wicks (Perry Aff., Ex. G)), despite the Law Firms’ refusal to provide any reasonable
suggestions on how to narrow the subpoenas. See Congel, 156 A.D.2d at 280 (upholding
subpoenas where commission “commendably offered to narrow” its subpoenas). For example,
the Law Firms allege that the subpoenas broadly seek “all” documents and communications (see
Harris Mem. at 20, 26), but in response to this concern, the Commission narrowed two requests
to accept documents and communications “sufficient to show” the needed information. See
Letter from K. Donovan & D. Perry to K. Sleight & J. Wicks (Perry Aff., Ex. G). And the
Commission clarified the alleged vagueness in its request for documents relating to campaign
contributions (see Harris Mem. at 27) by specifying that this request applies to the firms,
political organizations “under the firm’s control,” members or partners of the firms, and their
“immediate families.” Letter from K. Donovan & D. Perry to K. Sleight & J. Wicks (Perry Aff.,
46
Ex. G).13 To the extent that the Law Firms are confused by the subpoenas’ use of other
commonly used terms (see, e.g., Fritz Mem. 22), the Commission is willing to provide further
clarification upon request.
Finally, the Law Firms’ vague claim that the subpoenas are “oppressive” (Harris Mem. at
29) is based on the same flawed premises that do not support their other arguments, namely, that
the Commission requests confidential or irrelevant material. Because the Commission can easily
establish its “authority to conduct the investigation, the relevance of the documents [it] seeks,
and some basis for inquisitorial action,” Carl Andrews & Assocs. v. Office of the Inspector Gen.,
(2012), the subpoenas must be upheld, the motions to quash of the Law Firms and Legislators
must be denied, the Legislators’ Complaint must be dismissed or resolved with a declaration
explaining why they deserve no relief, and the Law Firms must be compelled to comply with the
subpoenas.
POINT VI
THE LEGISLATORS HAVE NO STANDING TO QUASH, OR TO CHALLENGE THROUGH A DECLARATORY-JUDGMENT ACTION, SUBPOENAS NOT DIRECTED AT THEM
Responds to the Legislators’ Motion to Quash and Legislators’ Complaint
All of the arguments raised by the Law Firms’ motions to quash, the Legislators’ motion
to quash, and the Legislators’ declaratory-judgment action are meritless for the reasons explained
above. But the Legislators’ claims, both in their motion to quash and Complaint, must be rejected
13 Contrary to the Law Firms’ contentions (Fritz Mem. at 21), the campaign contributions
of those closely affiliated with the firms contribute to the potential for corruption or the appearance of corruption, and are therefore relevant to the Commission’s inquiry.
47
for another, independent reason: the Legislators lack standing to challenge subpoenas not
directed at them.
Parties seeking to adjudicate claims must possess standing, or an “injury in fact” from the
complained of conduct. Soc’y of the Plastics Indus., Inc. v. County of Suffolk, 77 N.Y.2d 761,
772 (1991); Uhlfelder v. Weinshall, 47 A.D.3d 169, 181 (1st Dep’t 2007). This requirement
ensures that the dispute is one “capable of judicial resolution” and protects against advisory
opinions. Soc’y of the Plastics Indus., 77 N.Y. at 772-73. Courts have added to “this essential
principle of standing” prudential limitations that prohibit a litigant from “raising the legal rights
of another,” asserting “generalized grievances,” or claiming injuries not “within the zone of
interests protected by the statute invoked.” Id. at 773. The Legislators did not receive subpoenas
and cannot establish that they have suffered any concrete injury from subpoenas issued to private
business entities. They therefore lack standing to challenge the subpoenas, and the Court should
deny the Legislators’ motion to quash and grant the Commission’s motion pursuant to C.P.L.R.
3211(a)(2), (3) and (7) to dismiss the Complaint.
The Legislators Lack Standing As Nonsubpoenaed Persons Who Have A.No Property or Privilege Rights in the Requested Materials.
The subpoenas were issued exclusively to law firms and other private businesses that
employ legislators, not to any individual legislator or to the Senate or Assembly. Well-settled
New York law dictates that as nonsubpoenaed outsiders, the Legislators lack standing to
challenge the subpoenas unless they possess a property interest or claim of privilege over the
requested materials. See People v. Di Raffaele, 55 N.Y.2d 234, 242 (1982); Matter of Oncor
Commc’ns Inc. v. State, 218 A.D.2d 60, 62 (3d Dep’t 1996). The Legislators have no such
proprietary or privilege rights.
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The Legislators do not (and cannot) claim any personal property rights in the subpoenaed
materials. The documents sought by the Commission are records that “belong to” the subpoenaed
businesses, not to the Legislators. See Matter of Selesnick, 115 Misc. 2d 993, 994-95 (Sup. Ct.
Westchester County 1982) (subpoenaed hospital records belong to hospital, not to doctor); see
also, e.g., People v. Doe, 96 A.D.2d 1018, 1019 (1st Dep’t 1983) (subpoenaed bank records
belong to bank, not to customer). The entities that own the requested documents therefore have
standing to challenge the subpoenas, and indeed many Law Firms have done so in this case. But
the Legislators have asserted “no proprietary interest in the” requested materials and therefore
have no right to question the subpoenas. 38-14 Realty Corp. v. N.Y. City Dep’t of Consumer
Affairs, 103 A.D.2d 804, 804 (2d Dep’t 1984); see Matter of Selesnick, 115 Misc. 2d at 994-95.
Nor can the Legislators allege any cognizable claim of privilege over the subpoenaed
information. They point to the Speech and Debate Clause (Leg. Mem. at 17), but as explained
above, this narrow privilege for legislative acts in the Legislature by definition has no
applicability to the Commission’s request for information about legislators’ outside employment
with private-sector businesses. See supra, at 29-30. Indeed, courts have routinely held that
information regarding nonlegislative activities enjoys no legislative privilege from disclosure.
See Hutchinson, 443 U.S. at 127 (no immunity for senator’s newsletters or press releases);
Ohrenstein¸ 77 N.Y.2d at 54 (no immunity for legislators’ activities seeking to secure
community support or reelection). And certain information regarding legislators’ outside
employment and income must already be disclosed under current law, see Public Officers Law
§ 73-a(2)-(3), yet the Legislators do not contend that such mandatory disclosure is
unconstitutional. There is no reason why further details regarding these same nonlegislative
topics should be shielded by speech-and-debate immunity, which serves to “protect the integrity
49
of the legislative process,” not the “personal or private” interests of any legislator.14 See
Hutchinson, 443 U.S. at 127.
The Legislators’ argument (Leg. Mem. at 18; see also Compl. ¶¶ 4-6) that they possess
standing as the alleged “target[s]” of the Commission’s investigation is factually flawed and
legally irrelevant. The Commission’s focus is not on legislators “themselves” but rather on the
“relationship of” legislators and their outside employers to the current government-ethics laws,
as well as on “the efficacy of those laws to promote confidence in government.” Matter of N.Y.
Republican State Comm., 138 Misc. 2d at 795. Indeed, the ethical dilemmas raised by legislators’
outside employment are only one of many systemic problems under evaluation, including the
campaign-finance system, the BOE, and prosecutorial tools for combatting corruption. See
generally Preliminary Report, supra (Perry Aff., Ex. H). In any event, even if the Legislators
were the Commission’s focus, which they are not, the “mere fact that one is a target of
investigation or that the information sought may prove adverse” does not confer standing. Oncor,
165 Misc. 2d at 264.
Nor is there any merit to the Legislators’ unsubstantiated claim (Leg. Mem. at 18; see
also Compl. ¶¶ 6-7) that the Commission “had no reason” to subpoena the outside employers
except to reach the legislators through indirect means. The Commission can directly subpoena
the legislators for information regarding nonlegislative activities, and has already issued one
such subpoena to a legislator (see Perry Aff. ¶ 16). But after some legislators, including those
who have filed suit here, refused to provide descriptions of their outside employment, the
Commission chose to issue subpoenas to the Law Firms and other employers because these
14 The Legislators do not claim that attorney-client privilege or client confidentiality
provides them with standing, but any such assertion would fail. See supra, at 41-43.
50
entities, not their legislator-employees, possess the documents relevant to the Commission’s
inquiry. And the Commission had hoped that directing subpoenas to private firms that insist that
they are “separate and independent” from their legislator-employees (see, e.g., Harris Mem. at 1)
would avoid unnecessary litigation about separation-of-powers.
The Legislators May Not Rely on the Narrowly Defined Doctrine of B.Legislator Standing Because the Subpoenas Do Not Nullify Votes or Usurp Legislative Power.
The Legislators’ only other asserted basis for standing is their vague allegation that the
subpoenas are a “usurpation of power” by the Executive Branch (Leg. Mem. at 17 n.57) that
“threatens the Legislature’s fundamental rights” (id. at 18; see also Compl. ¶¶ 50, 55). This
argument invokes so-called “legislator standing,” but that legal doctrine confers standing in
exceedingly narrow circumstances not present here.
Legislator standing exists only in the rare instance where the challenged conduct causes a
concrete and specific reversal of a legislative decision. See Raines v. Byrd, 521 U.S. 811, 821,
823-24 (1997); Silver v. Pataki, 96 N.Y.2d 532, 542 (2001). As the United States Supreme Court
has explained, such standing arises where a legislator’s vote is “completely nullified” because
the executive branch’s act reverses a specific legislative action supported or defeated by a
legislator’s individual vote. Raines, 521 U.S. at 823; see Coleman v. Miller, 307 U.S. 433, 441,
446 (1939) (senators whose votes defeated ratification of constitutional amendment had standing
to challenge power of Lieutenant Governor to issue tie-breaking vote enacting ratification). By
contrast, abstract concerns about “dilution of institutional legislative power” do not provide
67-68, with Leg. Mem. at 19-23; Harris Mem. at 13-15); are procedurally improper (compare
Compl. ¶¶ 73-74, with Leg. Mem. at 28-30; Harris. Mem. at 15-16); and lack a factual basis or
seek privileged information (compare Compl. ¶¶ 1, 47-49, with Harris Mem. at 16-25). The
Legislators’ repackaging of their arguments in the guise of a declaratory-judgment action
changes nothing of substance.
Any plaintiff seeking declaratory-judgment relief must, like all litigants, establish that he
has suffered or will suffer an injury in fact that provides him standing. See Urban Justice, 38
A.D.3d at 24-26; Cherry v. Koch, 126 A.D.2d 346, 351 (2d Dep’t 1987); see generally Silver, 96
N.Y.2d at 539-40. As nonsubpoenaed persons without legislator standing, the Legislators have
no concrete interest in challenging the Commission’s subpoenas. See supra, at 46-52. The
Legislators cannot flout these long-established standing principles through a declaratory-
judgment action. See Metro. Waste Mgmt. Corp. v. Town of Hempstead, 135 Misc. 2d 548, 552
(Sup. Ct. Nassau County 1987) (dismissing complaint for lack of standing regardless of whether
action labeled as “declaratory judgment”). Indeed, the cases dismissing legislators’ claims for
lack of standing rejected parallel requests for declaratory relief. See Urban Justice, 38 A.D.3d at
22, 25-27; Montano, 70 A.D.3d at 205, 215-16. Nor can the Legislators succeed in an end-run
54
around their lack of standing by seeking through their Complaint a declaration regarding not only
the validity of the subpoenas, but also the validity of the Commission itself. The Complaint
asserts all of the same legal theories as the Legislators’ motion to quash, and does not identify
any concrete actions by the Commission other than issuing the subpoenas that could have caused
cognizable harm to the Legislature. The Complaint focuses almost exclusively on the subpoenas,
and asserts the same statutory and constitutional arguments as the Legislators’ motion to quash.
And the Legislators’ claims regarding the appointment of the Commission assert equally
“abstract and theoretical” political grievances as their subpoena-related claims. See Montano, 70
A.D.3d at 216.
Nor can the Legislators manufacture standing through State Finance Law § 123-e
(Compl. ¶¶ 79-84), a provision they do not even bother to raise in their motion to quash. This
statute allows only “citizen taxpayer[s]” to maintain an action against state officers who cause
illegal or unconstitutional disbursements of funds. See State Finance Law § 123-b. But the
Legislators do not sue as citizen-taxpayers or even in their individual capacities, alleging instead
(Compl. ¶¶ 12-14; id. at 1) that they bring suit in their “official” capacities as “member[s]” of the
Senate or Assembly and “on behalf” of those institutions—all parties who must allege a
particularized injury, see Matter of Madison Square Garden, L.P. v. N.Y. Metro. Transp. Auth.,
2005 N.Y. Slip Op. 50824(U), at *16-*17 (Sup. Ct. N.Y. County June 2, 2005); cf. Mylod, 171
Misc. 2d at 562 (rejecting § 123-b standing claim for not-for-profit organizations). In any event,
standing pursuant to State Finance Law § 123-e must be “narrowly construed,” Kennedy v.
Novello, 299 A.D.2d 605, 607 (3d Dep’t 2002), and cannot be utilized as a mere “pretense to
challenge a governmental decision,” Saratoga County Chamber of Commerce, Inc. v. Pataki,
100 N.Y.2d 801, 813 (2003). It is clear from the Legislators’ motion to quash, motions to
55
intervene, and Complaint that they improperly seek “to obtain judicial scrutiny” of the
Commission’s discretionary decision to issue subpoenas, which is a “nonfiscal” activity. See
Rudder v. Pataki, 93 N.Y.2d 273, 280-81 (1999) (quotation marks omitted); Kennedy, 299
A.D.2d at 607 (rejecting claim where “dispositive activity challenged” was “state’s nonfiscal
determination”). This last attempt at establishing standing must therefore also be rejected, and
the Complaint must be dismissed for that reason.
POINT VII
THE LEGISLATORS’ MOTIONS TO INTERVENE SHOULD BE DENIED
Responds to the Legislators’ Motions to Intervene
The Legislators have also moved to intervene in all of the litigations initiated by the Law
Firms and filed a separate memorandum of law in support of these motions (“Intervention
Mem.”). These motions must also be denied because the Legislators lack standing to bring any
claims challenging the subpoenas and are not entitled to intervention as of right or by the Court’s
permission.
A. The Legislators Cannot Intervene As of Right or By Permission of the Court Because They Lack Standing to Object to the Subpoenas.
The Legislators cannot intervene as of right pursuant to C.P.L.R. 1012(a)(2) or by
permission of the Court pursuant to C.P.L.R. 1013 because they lack standing to bring any of
their purported claims. A proposed intervenor “must actually have standing to assert the claims
or interests that he” wishes to interpose in the litigation. Persichilli v. Metro. Paper Recycling
Inc., 2010 N.Y. Slip Op. 52381(U), at *4 (Sup. Ct. Nassau County Nov. 30, 2010); see State ex
rel. Field v. Cronshaw, 139 Misc. 2d 470, 473 (Sup. Ct. Nassau County 1988) (“[I]ntervention
56
will not be permitted unless the movant has an interest which he seeks to protect sufficient to
provide the necessary standing.”). Here, neither the Legislators nor the Legislature have standing
to challenge subpoenas not directed at them. See supra, at 46-52. Put simply, the Legislators
have no “basis in law” to assert their putative claims, regardless of whether they attempt to bring
those claims in their own petition to quash the subpoenas, a declaratory-judgment action, or as
intervenors in the Law Firms’ petitions. See Persichilli, 2010 N.Y. Slip Op. 52381(U), at *4.
Without standing to bring suit, the Legislators cannot manufacture a way into these litigations
through intervention.
B. The Legislators May Not Intervene as of Right Because the Law Firms Are Adequate Representatives and Because the Legislators Would Not be Bound by a Judgment Here.
Even if the Legislators had standing (which they do not), they have no right to intervene
here. A litigant seeking to intervene as of right must make two showings: (1) that “the
representation of the person’s interest by the parties is or may be inadequate” and (2) that the
“person is or may be bound by the judgment.” C.P.L.R. 1012(a)(2). The Legislators fail to satisfy
both of these prerequisites.
The Legislators cannot show that the representation of their purported interests by the
Law Firms is or may be inadequate. The Legislators do not assert any interest distinct from the
Law Firms’ goals; instead the Legislators and the Law Firms both ask this Court to quash the
same set of subpoenas issued to the Law Firms. The Legislators and the Law Firms share this
same ultimate objective regardless of whether they have different subjective motivations in
seeking to quash the subpoenas, as the Legislators allege (Intervention Mem. at 17-19). This
shared goal ensures that the Law Firms will be adequate representatives of the Legislators’
interests. See Clark v. Putnam County, 168 F.3d 458, 461 (11th Cir. 1999) (“We presume
57
adequate representation when an existing party seeks the same objectives as the would-be
interveners.”); Mastr Adjustable Rate Mortgs. Trust 2006-Oa3 v. UBS Real Estate Secs., Inc.,
No. 12-cv-7322, 2013 U.S. Dist. LEXIS 15187, at *6 (S.D.N.Y. Jan. 11, 2013) (“When a
potential intervenor shares the ‘same ultimate objective’ as an existing party in the case,
however, adequate representation is presumed.”). Certainly these mutual interests are not “so
divergent” as to render the Law Firms’ representation of the Legislators’ interests “inadequate.”
See Vantage Petroleum v. Bd. of Assessment Review of the Town of Babylon, 91 A.D.2d 1037,
