SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ALBANY
BRENNAN CENTER FOR JUSTICE AT NYU
SCHOOL OF LAW; GERALD BENJAMIN; LIZ
KRUEGER; JOHN R. DUNNE; DANIEL L.
SQUADRON; MAUREEN KOETZ; and BRIAN
KAVANAGH,
Petitioners,

Index No. 3579-15

Assigned to Justice Lisa Fisher
Motion Sequence No. 1

For a Judgment Pursuant to Article 78 of the Civil

Practice Law and Rules,
-againstNEW YORK STATE BOARD OF ELECTIONS,
Respondent.

PETITIONERS SUPPLEMENTAL MEMORANDUM OF LAW IN FURTHER

SUPPORT OF PETITIONERS MOTION FOR JUDGMENT
PURSUANT TO ARTICLE 78

Emery Celli Brinckerhoff & Abady LLP

600 Fifth Avenue, 10th Floor
New York, New York 10020
(212) 763-5000
The Brennan Center for Justice
NYU School of Law
161 Avenue of the Americas, 12th Floor
New York, NY 10013
(646) 292-8310

On December 16, 2015, this Court held extensive oral argument on this hybrid
Article 78 and declaratory judgment Petition challenging the Board-created LLC
Loophole.1 At the Courts request, Petitioners submit this supplemental memorandum of
law to address two questions: whether the Petitioners have standing under the public
interest standing doctrine, and whether the political question doctrine bars this Courts
review of the Petition.
As set forth below, and as fully revealed at oral argument before this Court, this
case where lawless agency action has fatally undermined the states campaign finance
laws yet, by Respondents lights, no one has standing to challenge them presents the
quintessential circumstance where public-interest standing should be recognized. At the
same time, the political question doctrine a prudential rule designed principally to
keep courts from interfering with the internal processes of a legislature or with non-legal
policy-choices is not a bar to the exercise of this Courts power to say what the law
is. Marbury v. Madison, 1 Cranch 137, 177 (1803). To hold otherwise is to abdicate the
power of judicial review in a context where the Legislature delegated authority to the
Board of Elections subject to such review.
I. PETITIONERS HAVE STANDING UNDER THE PUBLIC INTEREST
DOCTRINE AND GENERAL STANDING JURISPRUDENCE
As explained below, in prior briefing, and at oral argument, Petitioners easily
meet ordinary standing requirements applicable in New York. See Pet. Reply Mem. Part
III; Ex. 1 at 5-16, 18-19, 29, 31, 51-54.

A copy of the transcript of that argument is attached as Exhibit 1 to the Supplemental Affirmation of
Elizabeth S. Saylor, dated December 22, 2015. All future references to Exhibit 1 are to this transcript.

Petitioners also have public interest standing. New York has a long tradition of
opening the courthouse doors to litigants who seek to raise issues of genuine public
interest through the legal process. A departure from ordinary standing jurisprudence, the
public interest standing doctrine permits courts to decide cases of significant public
concern that affect the operation of the government, even when the touchstones of
traditional standing may be absent. Here, Petitioners have standing under the public
interest standing doctrine because the Board-created LLC Loophole has gutted the states
campaign finance laws, permitted wholesale evasion of the Election Laws contribution
limits for individuals, and facilitated grotesque corruption, as demonstrated by the recent
convictions of the states former top two legislators.2 If ever there was a case where the
public interest standing doctrine should apply, this is it. This Court should acknowledge
Petitioners standing and move to the merits.
The public interest standing doctrine derives primarily from the Court of Appeals
decision in Andresen v. Rice, 277 N.Y. 271, 281 (1938).3 In Andresen, the Court
permitted a citizen to challenge the Superintendent of the Polices practice of appointing
members of the police force without competitive exams in alleged contravention of the
state law. Id. at 275-282. The Court found that the individual had standing as a citizen
and resident even though he had not applied for a position on the force. Id. at 273.
2

Editorial, Defending Corruption, ALBANY TIMES-UNION, Dec. 20, 2015, at

http://www.timesunion.com/tuplus-opinion/article/Editorial-Defending-corruption-6711833.php (noting
that a major LLC donor played a key role in the corruption schemes that recently brought down former
Assembly Speaker Sheldon Silver and ex-Senate Majority Leader Dean Skelos); William K. Rashbaum,
Albany Trial Exposed the Power of a Real Estate Firm, N.Y. TIMES, Dec. 19, 2015, at
http://nyti.ms/1PeUV1G (discussing how Glenwood Management, the largest LLC contributor, played a
key role in both trials and gained tax benefits of $100 million from one state program alone).

The Petitioner in Andresen sought a mandamus to compel, which is an extraordinary remedy, whose
issuance is to a great extent discretionary. 277 N.Y. at 282. Petitioners here, however, seek a mandamus
to review, which must be granted because the agency determination was arbitrary and capricious or
affected by an error of law. See Scherbyn v. Wayne-Finger Lakes Bd. of Co-op. Educ. Servs., 77 N.Y.2d
753, 757-58 (1991); see also Pet. Reply Mem. n.10.

Relying on Andresen and its progeny, New York courts have repeatedly granted
standing where the case involves one of significant public importance that affects the
operation of the government, even if those who bring the case do[] not show a personal
grievance or a personal interest in the outcome. See Policemens Benev. Assn of
Westchester Cnty., Inc. v. Bd. of Trustees of Vill. of Croton-on-Hudson, 21 A.D.2d 693,
694 (2d Dept 1964). For example, in 2005, the Third Department held that an individual
had standing to bring an Article 78 action to prevent a mayor from illegally issuing
marriage licenses to same-sex couples. Hebel v. West, 25 A.D.3d 172 (3d Dept 2005).
While the petitioner was merely an ordinary citizen, and thus suffered no unique and
personal harm, the court granted him standing because the matter was one of obvious
statewide concern. Id. at 176. Had public-interest standing not been granted, the court
held, a single official would be allowed to effectively amend the marriage laws of this
State without judicial review. Id.
Precisely the same rationale justifies application of the doctrine here. Indeed, that
rationale is further buttressed by the fact that the agency action at issue in this case
profoundly undermines the democratic process itself. In Julian v. LaSalle, 22 A.D.3d
1033, 1034 (4th Dept 2005), the Appellate Division afforded standing to a mayor who
sought an order removing a proposition from the ballot in an upcoming election. The
court granted standing because the case involved a question of significant concern to all
of the citys residents. In Andrews v. Nagourney, 41 A.D.2d 778 (2d Dept 1973), affd,
32 N.Y.2d 784 (1973), the Appellate Division reached the same result, concluding that
the petitioner, a citizen and taxpayer, had standing to challenge the holding of a special
election because it involved a matter of significant municipal concern. Id. at 778.

These cases are only a few examples of the many times New York courts have applied
the public interest standing doctrine.4
The public interest standing doctrine is applicable here because Petitioners
challenge an invalid interpretation of the Election Law that has debilitated the states
campaign finance structure and led to corruption and the outsized influence of business
entities on state politics. The public therefore has a great interest in the proper
interpretation of a central provision of the Election Law. Closing the courthouse doors to
these Petitioners would be detrimental to the publics interest because if they lack
standing then no one has standing to challenge the Boards illegal actions. Notably,
Respondents themselves effectively admitted that if Petitioners were denied standing,
then no one would have standing.5
Denying standing to these Petitioners would also violate the states general
standing jurisprudence. Just last month, the Court of Appeals reiterated that even in the
more restrictive SEQRA context,6 standing is not to be denied simply because many
people suffer the same injury, and that standing principles should not be so restrictive as
to completely shield a particular action from judicial review. Sierra Club v. Vill. of

See, e.g., Elefante v. Hanna, 54 A.D.2d 822 (4th Dept 1976), affd as modified by 40 N.Y.2d 908 (1976);
Marone v. Nassau Cnty., 39 Misc.3d 1034, 1041 (Sup. Ct. Nassau Cnty. 2013).
5

At oral argument, Petitioners argued that the Boards decision would be completely shielded from review
if Petitioners were denied standing. Counsel for the Intervenors responded by asserting that the people or
entities who initially sought the Boards 1996 opinion are the only permissible petitioners. That answer is
woefully inadequate. First, the 1996 opinion was not a discrete decision that affected only those who
sought an opinion from the Board; it created a general rule that applies to all candidates and contributors.
To limit court review to such a small group of people would violate fundamental principles of fairness.
Second, the Boards public records do not identify those who sought the opinion, and it is not even clear
whether those people or entities are alive and able to bring a lawsuit.
6

See Assn for a Better Long Island, Inc. v. N.Y. State Dept of Envtl Conservation, 23 N.Y.3d 1, 6 (2014)
(explaining stricter standing doctrine applied in land use matters).

Painted Post, -- N.Y.3d --, 2015 WL 7288109, at *4 (Nov. 19, 2015) (quotation marks
omitted).
Petitioners here candidates for public office, elected officials, voters, and a
public-interest law organization (the Brennan Center for Justice) all satisfy the
requirements for traditional standing. All have suffered and will continue to suffer
concrete injuries in the zone of interest of the Election Law. Pet. Reply Br. Part III. For
example, Petitioners who have been and will be candidates for office have been forced to
compete in a rigged competitive environment where their opponents are free to receive
contributions that violate the Election Law.7 New York and federal courts have
consistently recognized that competitive injury is sufficient to confer standing. See Shays
v. FEC, 414 F.3d 76, 84 (D.C. Cir. 2005) (finding that candidates had standing to
challenge FEC rule because their opponents may undertake any conduct permitted by
the challenged regulations without fear of penalty, even if that conduct violates campaign
statutes); Marchi v. Acito, 77 A.D.2d 118 (3d Dept 1980) (allowing a candidate to
challenge the Board of Elections failure to prevent his opponents violations of the Fair
Campaign Code); N. State Autobahn, Inc. v. Progressive Ins. Grp. Co., 102 A.D.3d 5, 17
(2d Dept 2012) (recognizing competitor standing in the business context). The
Petitioners who are elected officials have also been injured because the political power
wielded by LLCs due to their large contributions has prevented those Petitioners
attendance at legislative meetings and affected their ability to provide information to
constituents, among other things. See Pet. Reply Br. at 10 (collecting cases allowing
7

See also Schulz v. N.Y. State Bd. of Elections, 633 N.Y.S.2d 915, 918 (Sup. Ct. Albany Cnty. 1995) revd
on other grounds, 214 A.D.2d 224 (3d Dept 1995) (Firstly, as a citizen-taxpayer and a person specifically
aggrieved by the prohibitive impact of [the Election Law], upon his quest for ballot access for the Office of
Governor, plaintiff-petitioner has standing to bring this lawsuit.).

persons to sue based on an injury that prevents them from performing their duty); see
also Ex. 1 at 5-16, 18-19, 29, 31, 51-54 (explaining why each of the Petitioners have
standing).
In sum, Petitioners have standing under the general standing rules and the public
interest doctrine.
II. BECAUSE THE PETITION ASKS THE COURT TO INTERPRET
STATUTES, IT PRESENTS JUSTICIABLE QUESTIONS OF LAW
The Courts review of this case is not barred by the political question doctrine.
Indeed, far from being outside the scope of this Courts power, the exercise of power that
this Petition calls for is nothing less than the very core of the judicial function, i.e.,
judicial review. Where the Legislature delegates to an administrative agency the power
to promulgate regulations consistent with the statutory scheme, it is emphatically the
power and duty of the judiciary to police that through the exercise of judicial review.
This case calls for no more, and no less than that.
Petitioners ask this Court to declare that the 1996 Opinion and the April 2015
Decision conflict with the Elections Law and the LLC Law, and to rule that both laws
foreclose treating LLCs as natural persons for purposes of campaign donations. Such a
review is not only within the authority of this Court; it is at the core of the judicial
function. The Board issued these decisions pursuant to authority specifically issued by
the Legislature to promulgate rules and regulations relating to . . . campaign financing
practices consistent with the provisions of law. N.Y. Election Law 3-102(1) (emphasis
added). The Court is thus obligated, using the traditional tools of statutory interpretation,
to determine if the Boards treatment of LLCs is consistent with the provisions of the
Election Law.
6

The political question doctrine is a narrow exception to the judiciarys general

ability to hear cases, and it only applies where there is a textually demonstrable
constitutional commitment of the issue to a coordinate political department; or a lack of
judicially discoverable and manageable standards for resolving it. Zivotofsky ex rel.
Zivotofsky v. Clinton, 132 S. Ct. 1421, 1427 (2012) (internal quotations omitted).
Nonjusticiable political controversies typically involve the internal rules of the
Legislature or questions of judgment, allocation of resources and ordering of priorities 8
by the Executive branch. N.Y. State Inspection, Sec. and Law Enforcement Emps. v.
Cuomo, 64 N.Y.2d 233, 239 (1984). For example, the Court of Appeals declined to rule
on a case questioning the Governors decision to close a prison, holding that deciding
otherwise would embroil the judiciary in the management and operation of the State
correction system. Id. Courts have similarly declined jurisdiction over cases about the
internal rules of the Legislature, Urban Justice Ctr. v. Pataki, 38 A.D.3d 20 (1st Dept
2006),9 legislative staffing, People v. Ohrenstein, 153 A.D.2d 342 (1st Dept 1989), the
discretion of an executive to hire and fire outside counsel, Prospect v. Cohalan, 112
A.D.2d 1018 (2d Dept 1985), and eligibility and qualifications of candidates for federal

Respondents have claimed that this case is about whether to expend the resources to have a Board
attorney draft an opinion on the treatment of LLCs, but the April 2015 motion that failed by a 2-2 vote also
contained a clear directive to rescind the 1996 Opinion. See Tr. of April 16, 2015 NYSBOE Meeting
Commissioners Meeting, at 27, 35, Ex. 13 to Saylor Aff., July 13, 2015. The refusal to rescind was a
decision on the merits to continue treating LLCs as natural persons. Similarly, the 1996 Opinion, which
can be challenged under the continuing harm doctrine, was also a decision on the merits. See Pet. Reply
Mem. Part II; Ex. 1 at 19-20, 23-24, 51.
9

The court found that plaintiff Urban Justice Center lacked standing to sue for declaratory relief because it
included no allegation that any complained-of practice . . . has caused UJC to expend additional resources
in performing its mission. Urban Justice Ctr., 38 A.D.3d at 25. By contrast, the Brennan Center
specifically alleged that the LLC Loophole had forced the organization to divert resources from its core
mission. Pet. 96. See Mixon v. Grinker, 157 A.D.2d 423, 426 (1st Dept 1990) (holding that the
Coalition for the Homeless had standing to request that the court compel the city to provide housing for
HIV-positive men because Coalition had alleged a specific burden on its resources); see also Havens
Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982).

office, Strunk v. N.Y. State Bd. of Elections, 35 Misc. 3d 1208(A) (Sup. Ct. Kings Cnty.
2012).
The political question doctrine does not, however, preclude a Court from deciding
cases involving politically sensitive questions or issues currently debated by the
legislature or executive branches. As the Court of Appeals explained, [t]he political
question doctrine [is] a regrettable misnomer to the extent that it implies that a case
which involves a political question is not justiciable. Anderson v. Krupsak, 40 N.Y.2d
397, 403 (1976). Courts are constantly asked to decide cases with obvious political
overtones, such as legislative apportionment, the legislative response to the New York
City financial crisis, and countless election matters. Id.10 To conclude otherwise
would be to write the doctrine of judicial review out of existence.
Indeed, as the Court of Appeals has explained, courts are obligated to rule on
cases before them even in fraught political contexts:
Whenever faced with questions of law, we always have,
and shall continue to, decide those questions, regardless of
the political context in which such questions arise. To do
otherwise would only undermine the function of the
judiciary as a coequal branch of government.
Id. at 404. In general, the Judiciary has a responsibility to decide cases properly before
it, even those it would gladly avoid. Zivotofsky, 132 S. Ct. at 1424 (internal quotation
marks omitted); Japan Whaling Assn v. Am. Cetacean Soc., 478 U.S. 221, 230 (1986)

10

New York courts have weighed in on many politically sensitive questions that involve other branches of
government. For example, the Court of Appeals held that a petition seeking to compel the New York City
Department of Sanitation to implement programs and studies as required by the citys recycling law was
not a political question; rather, it was a fully justiciable question of the meaning of the city law. Nat. Res.
Def. Council, Inc. v. N.Y.C. Dept of Sanitation, 83 N.Y.2d 215, 220 (1994). Similarly, the Fourth
Department, engaging in statutory interpretation, ruled that the legislative process by which the Marriage
Equality Act was passed was valid. New Yorkers for Constitutional Freedoms v. N.Y. State Senate, 98
A.D.3d 285 (4th Dept 2012).

(Courts cannot shirk their responsibility to decide cases with significant political
overtones.).11
While this case involves legal issues that touch on politics, it does not present a
nonjusticiable political question in any sense of that narrow doctrine. The Petition
presents pure questions of law, whose answers require the use of traditional tools of
statutory interpretation: analyzing the text, purpose, and legislative history of the Election
Law and the LLC Law. Interpreting a statute is directly in the wheelhouse of the
judiciary, not some other branch of government. And the judiciary has long since
established manageable standards for doing so. As the Court of Appeals explained,
[w]hether administrative action violates applicable statutes and regulations is a question
within the traditional competence of courts to decide. Matter of Dental Socy v. Carey,
61 N.Y.2d 330, 335 (1984); Zivotofsky, 132 S. Ct. at 1427 (interpreting a statute is a
familiar judicial exercise); see also Pet. Reply Br. Part IV; Ex. 1 at 21-32, 54-58.
Nor does the fact that the case involves elections and election financing remove it
from the Courts purview. Courts have not hesitated to rule on the legality of campaign
finance regulations. For example, in Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004),
affd, 414 F.3d 76 (D.C. Cir. 2005), the court struck down multiple campaign finance
regulations created by the Federal Election Commission, because they undercut[] [the
Federal Election Campaign Acts] statutory purpose of regulating campaign finance and
11

It is irrelevant that the LLC Loophole has been debated in the legislature and discussed by the governor.
That another branch of government could act on an issue does not mean that it is the only branch of
government so empowered. As the Court of Appeals explained in Bourquin v. Cuomo, 85 N.Y.2d 781
(1995), [l]egislative inaction . . . affords the most dubious foundation for drawing positive inferences
regarding the intent of the legislature. Id. at 787-88 (internal quotation marks omitted). In Bourquin, the
Court examined the propriety of an executive order establishing a private non-profit corporation, after the
legislature considered but failed to enact a bill with substantially similar provisions. While it may have
been more desirable for the Legislature to have passed a statute establishing the board, the Court held, that
the legislature failed to act did not bar the Executive from acting. Id. at 788.

preventing circumvention of the campaign finance rules and severely undermine[]

FECAs purposes. Id. at 64, 70; see also Kurland v. N.Y.C. Campaign Finance Bd., 23
Misc.3d 567 (Sup. Ct. N.Y. Cnty. 2009) (ruling that the boards advisory opinion was
consistent with the N.Y.C. Campaign Finance Act); Corning v. Bd. of Elections of Albany
Cnty., 57 N.Y.2d 746 (1982) (ruling on constitutionality of Elections Law provision
regarding early voting).12 The Petition is thus just one of countless election matters
appropriately before the courts. See Anderson, 40 N.Y.2d at 404. The Court is therefore
required to determine whether the Board, in treating LLCs like natural persons, followed
its statutory mandate to implement rules consistent with the provisions of [the Election]
law. N.Y. Elec. Law 3-102(1).
Because the LLC Loophole is not consistent with the provisions of the Election
Law, the Court must strike down the 1996 Opinion and April 2015 Decision as arbitrary
and capricious and contrary to law. The Court must also issue a declaration ordering the
Board to treat LLCs like other artificial business entities. Here, there is nothing inherent
in [Petitioners] attempts to seek a declaration and enforcement of their rights that renders
the controversy nonjusticiable. They do not wish to controvert the wisdom of any
program. Instead, they ask only that the program be effected in the manner that it was
legislated. Klostermann v. Cuomo, 61 N.Y.2d 525, 537 (1984).

12

Respondents rely on Corrigan v. Bd. of Elections, 38 A.D.2d 825 (1st Dept 1972) and Delado v.
Carolee, 97 N.Y.2d 420 (2002) to argue that the Court has narrow authority to review Board action. Those
actions, however, involved summary proceedings under the Election Law where a statute expressly limits
the Courts authority to alter general elections.

10

Dated: December 22, 2015

New York, New York

&
;;;b
EMERY CELLI BRINCKERHOFF

Andre,f'G:Celli, Jr.
Elizabeth S. Saylor
Alison Frick
Emery Celli Brinckerhoff
& Abady LLP
600 Fifth Avenue, 1oth Floor
New York, NY 10020
Telephone (212) 763-5000
Fax (212) 763-5001

BRENNAN CENTER FOR

JUSTICE AT NYU SCHOOL OF
LAW
Wendy Weiser
Lawrence D. Norden
Daniel I. Weiner
Brent Ferguson
Brennan Center for Justice
161 Avenue of the Americas, 1ih Fl.
New York, NY 10013
Telephone (646) 292-8310
Fax (212) 463-7308

Counsel for Petitioners

11