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Media Alerts - National Organization for Marriage, Inc. v. Walsh - Second Circuit
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April 22, 2013
  National Organization for Marriage, Inc. v. Walsh - Second Circuit
Headline: Second Circuit Allows "National Organization for Marriage," a nonprofit advocacy organization opposing same-sex marriage, to Proceed with Challenge to New York Election Law

Area of Law: Constitutional Law

Issue(s) Presented: Whether National Organization for Marriage's ("NOM") pre-enforcement challenge to New York Election Law § 14-100.1 was ripe and non-moot.

Brief Summary: The National Organization for Marriage, Inc. ("NOM") is a nonprofit organization dedicated to opposing same-sex marriage. In the fall of 2010, NOM sued the co-chairs and commissioners of the New York State Board of Elections ("BOE"), explaining that it sought to advocate for certain candidates for statewide office in the November 2010 election, but feared that doing so would render it a "political committee" under New York law, thus subjecting it to various statutory requirements. NOM's lawsuit alleged that these requirements had a chilling effect on its protected speech and thus violated the First Amendment. The District Court for the Western District of New York granted Defendants' Motion to Dismiss on ripeness grounds, explaining that NOM had not yet tried to ascertain its status with the BOE, nor had the BOE tried to enforce the "political committee" requirements against NOM. The Second Circuit vacated and remanded, holding that NOM's claim was ripe and that it was not moot even though the 2010 election cycle was over. To read the full opinion, please go to:

Extended Summary: The National Organization for Marriage, Inc. ("NOM"), a nonprofit advocacy organization dedicated to opposing same-sex marriage, filed a First Amendment lawsuit against the chairs and commissioners of the New York State Board of Elections ("BOE") in the United States District Court for the Western District of New York. The claim centered on allegations that NOM wanted to engage in advocacy connected to the November 2010 elections in New York State, but was chilled from doing so for fear that BOE would determine that NOM is a "political committee" under N.Y. Elec. Law § 14-100(1) and thus subject NOM to the regulations found in the remainder of N.Y. Elec. Law Art. 14. The district court granted Defendants' Motion to Dismiss for lack of subject matter jurisdiction, as the court found that NOM's fears were not well founded and that NOM had a chance of qualifying for an exception to § 14-100(1).

The Second Circuit, by a 2-1 vote, vacated and remanded. The majority held that NOM's claim satisfied both the constitutional and prudential standards for ripeness. The constitutional ripeness standard requires that a plaintiff's injury be actual or imminent. Here, NOM's fear of enforcement was justified in that NOM pled detailed facts regarding what it planned to do in future elections. These pleadings included examples of print and radio advertising NOM would run were it not for the chilling effect of the relevant N.Y. Elec. Law regulations, such as a radio advertisement stating "tell your family and friends to vote for Carl Paladino. He'll stand up for marriage between one man and one woman." These pleadings were sufficient to establish that NOM would have been a "political committee." Furthermore, the district court's reliance on the exception to § 14-100(1) was misplaced, because the nature of the above-mentioned advertisements indicated that NOM would not qualify for that exception.

In dealing with the issues of prudential ripeness and mootness, the majority quickly dispatched any remaining obstacles to moving forward with the case at trial. Prudential ripeness was not an obstacle because the court found no precedent supporting the assertion that BOE had to undertake a specific effort to regulate NOM before a challenge was proper. Indeed, BOE could regulate NOM as a political committee as soon as NOM acted in a qualifying manner. Finally, the majority found that there were no mootness issues, even though NOM's claims were brought in the context of the 2010 elections. Because these claims were "capable of repetition, yet evading review," as is often the case with election law-related claims, the court found it proper to allow the claims to proceed. Thus, the case was remanded to the district court for further consideration of the merits of NOM's claim.

In dissent, Judge Newman seized on an administrative mechanism that allowed NOM to request, from BOE, a determination as to whether its activities would qualify the organization as a "political committee." Furthermore, once an applicant uses such a mechanism and receives a negative answer, BOE must alert the applicant before acting contrary to its prior response. As such, Judge Newman found NOM's claim to be not yet ripe, as NOM had not requested such advice from BOE. For NOM's claim to be ripe in the pre-enforcement context, Judge Newman would require NOM first to apply for such advice.

To read the full opinion, please go to:

Panel: Circuit Judges Newman and Hall; Chief District Judge Preska (sitting by designation).

Argument: 08/24/2011

Date of Issued Opinion: 04/22/2013

Docket Number: No. 10-4572-cv

Decided: Vacated and Remanded to the United States District Court for the Western District of New York for further proceedings.

Case Alert Author: Joseph E. Fornadel III

Counsel (if known): RANDY ELF (James Bopp, Jr., Jeffrey P. Gallant, Austin J. Hepworth, James Madison Center for Free Speech, and Laurence Behr, Barth Sullivan Behr, Buffalo, NY, on the brief), James Madison Center for Free Speech, Terre Haute, IN, and as substitute counsel Kaylan L. Phillips, ActRight Legal Foundation, Washington, DC, and John C. Eastman, Center for Constitutional Jurisprudence, Orange, CA, for Plaintiff-Appellant. KENNETH A. MANNING (Michael B. Powers, Craig R. Bucki, on the brief) Phillips Lytle LLP, Buffalo, NY, for Defendants-Appellees Douglas Kellner and Evelyn Aquila. Justin E. Driscoll, Brown & Weinraub, PLLC, Albany, NY, for Defendants-Appellees James Walsh and Gregory Peterson.

Author of Opinion: Judge Hall (majority); Judge Newman (dissent).

Case Alert Circuit Supervisor: Emily Gold Waldman

    Posted By: Emily Waldman @ 04/22/2013 08:15 PM     2nd Circuit  

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