Petition — Slevin v. City of New York

Supreme Court brief1983

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83-484

Me. SEP 20 1983

ALBXAADES L STEVAS,

In THE CLERK

Supreme Court of the United States

Octoser Term, 1983

James Sievin, Mary Sieviy, Baran Curxton, Joan CLINTON,

Dr. Stantey C. Fevy, and Franx D’Amico, on their own

behalf and on behalf of all others similarly situated,

Petitioners,

Crry or New York; New York City Boarp or Eruics;

Epwarp I. Kocu, as Mayor of the City of New York;

Francis T.P. Purmpton, as Chairman of the Board of

Ethics; Powreitu Prerpornt and Barsara Scotr PREISKEL

as members of the Board of Ethics; and Davm N.

Drygrys as City Clerk,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Murray A. Gorpon

Attorney for Petitioners

666 Third Avenue

New York, New York 10017

(212) 661-7900

Of Counsel:

Ricwarp M. BerHein

Gorpon, SHecHTMAN & Gorpoy, P.C.

Question Presented for Review

Whether New York City Local 48 of 1979, which com-

pels public employees to file and to disclose to the public

at large extensive personal financial information, is con-

stitutional as applied to employees whom the District

Court found to perform no policy-making functions and

have no history of corruption or any significant opportunity

for corruption?

TABLE OF CONTENTS

PAGE

Question Presented for Review 2200...........ccceceececeeeeeneeees i

GE AR ER ik AE TORII iii

SLE A EO Oe IRAE ID crete 1

EERE ie ar OS aN TER ORE Sete TORENT ST 1

Constitutional and Statutory Provisions Involved sil 1

NE SLT aaa Oe ee 2

The Local Law Challenged .0.0.0......2......ccccececesecesseeeeee 2

The Plaintiffs and Their Duties —..0.0000000 eee 5

The Privacy Interests Affected 0.0..0.........:cccseececesees 8

The Purposes Served by LL 48 as Applied to

REP SIS ALO en WN Re Ro 12

Financial Disclosure Laws in Other Jurisdictions 14

a NO ence! osentisivowsnenbesnocietilss 16

REASONS FOR GRANTING THE PETITION 000000.0....ccccccseseeeeeeee 20

This Case Turns Upon Important Questions of

Federal Constitutional Law Which Have Not

Been, But Should Be, Settled by This Court ...... 20

Conciusion a 30

i i wenieennphbtneniniseaipaitiemaianaale la

NES er ee 7 Soe Der 26a

EE ee SANE 157a

EE AE a ce a a ee 167a

Appendix V ene 998

Appendix VI ee |) |

Appendix VII + 2050

iii

TABLE oF AUTHORITIES

Cases PAGE

Buckley v. Valeo, 424 U.S. 1 (1976) ........ 22

California Bankers Assn. vy. Schultz, 416 U.3. 21 (1974)

22, 23

Carey v. Population Services International, 431 U.S.

Oo a Se EN eas 24

City of Akron vy. Akron Center for Reproductive

Health, Inc., U.S. ——, 76 L.Ed.2d 687 (1983)

26, 26n

Doe v. Bolton, 410 U.S. 179 (1978) .............sc-ccecceoceseeree 26n

Eisenstadt v. Baird, 405 U.S. 453 (1972) 0.0... ssscesseeeees 25

Fritz v. Gorton, 527 P.2d 911 (Wash. 1974), app. dism.

417 U.S. 902 (1974) ..... 29, 29n

Griswold v. Connecticut, 381 U.S. 479 (1965) ................ 26

Hunter vy. City of New York, 58 A.D.2d 136, 369 N.Y.S.

2d 186 (1st Dept. 1977), aff’d 44 N.Y.2d 705 (1978)

2-3, 17

J.P. v. DeSanti, 653 F.2d 1080 (6th Cir. 1981) ............ 22

Loving v. Virginia, 388 U.S. 1 (1967) 25

Meyer v. Nebraska, 262 U.S. 390 (1923) 25

Montgomery County v. Walsh, 336 A.2d 97 (Md. 1975),

app. dism. 424 U.S. 901 (1976) 29, 29n

Nixon v. Administrator of General Services, 432 U.S.

425 (1977) 21, 22, 23, 26

O’Brien v. DiGrazia, 544 F.2d 543 (1st Cir. 1976),

cert, den., 431 U.S. 914 (1977) 25

Paul v. Davis, 424 U.S. 695 (1976) 21

Pierce v. Society of Sisters, 268 U.S. 510 (1925) ........ —

Planned Parenthood of Central Missouri v. Danforth,

428 U.S. 52 (1976) ......... 26n

PAGE

Plante v. Gonzalez, 575 F.2d 1119 (5th Cir. 1978), cert.

om, GD TT. TURD CUOTD) ancccceecesssiceccnscssnetrseciens 12n, 15, 25

Prince v. Massachusetts, 321 U.S. 158 (1944) —.0.00000..... 25

Roe . Wade, 410 U.S. 113 (1973) ....................ccccccscesceceee 26

Schachter v. Whalen, 581 F.2d 35 (2d Cir. 1978) ........ 22

Skinner v. Oklahoma, ex rel. Williamson, 316 U.S. 535

(1942) ........ sliidenihtiniciechninichharabssiiginigdiaaiccastmand 25

Slevin v. City of New York, 477 F.Supp. 1051 (S.D.

AS, CRC S ae Oe SA TRO Ie RR he 18

Stem v. Howlett, 289 N.E.2d 409 (Ill. 1972), app. dism.

ONS I I oes ecssepiesnscintesigundtinilephitleceitll 29, 29n

Umited States v. Westinghouse Electric Corp., 638 F.2d

I I: Os UI a a demesne elaenatanca nadia ial 22

Whalen v. Roe, 492 U.S. 589 (1977) 0s 21, 22, 23, 26

Zablocki v. Bethel, 434 U.S. 374 (1978) crecceccccccccccossssee 24

Statutes and Regulations

Ark. Stat. §12-3002(e) ............ " 14n

Cal. Govt. Code Ann. $§87200 ............. 14n

Executive Order 16 .. 13n

Hawaii Rev. Stat. §84.17(c) (1979 Supp.) ~.......-..-.00- 14n

Mass. Gen. Laws Ann. Ch. 268B $1(0) (1980 Supp.) .... 14n

Minn. Stat. Ann. §10A.01(18) (1980 Supp.) .................. 14n

New York City Administrative Code §1106-5.0 00000... 2

National Municipal League Model State Act ........ —

New York City Charter (42604) 13n

New York Penal Law (Art. 195, 200) 13n

PAGE

Ore. Rev. Stat. §244.050 (1980) 0................cscccceccesccseeeesees 14n

So. Car. Code §8-13-810 (1980 Supp.) ............:ccceceseeceeeee 14n

eT OR ES NT: 1 Te) See 15

a ER SS) Ee 15

Ir I a ecaehaon 15

ae ES eee 15

Ss IN, PUERCO) ccc scccsccecccseccsenecsesencnsvacesns 15

SI UI, UIE OND ssc cnsecnnccnneceesnnnstnesescencne 15

Reg Se eel EE Se 2

EE Se ee 2

Miscellaneous

Case Comment, A Constitutional Right to Avoid Dis-

closure of Personal Matter: Perfecting Privacy

Ananlysis in J.P. v. De Santi, 71 Geo. LJ. 219 (1982) 21n

Comment, Constitutional Law—A Missed Opportunity

for Clarification—Hollenbaugh vy. Carnegie Free Li-

brary, 4 W. New Ewa. L. Rev. 171 (1981) —..000000000.... 21n

Note, Constitutional Limitations on Florida’s Financial

Disclosure Laws, 31 U. Fua, L, Rev. 872 (1979) ...... 21n

Note, The Constitutional Right to Confidentiality, 51

ey Pe a | 21n

Note, The Constitutional Right to Withhold Private

Information, 77 Nw. U. L. Rev. 536 (1982)

Note, The Interest in Limiting The Disclosure of Per-

sonal Information: A Constitutional Analysis, 36

Vann. L. Rev. 139 (1983)

U.S. Bureau or Lavon Statistics, Dep’r or Lasor, Em-

PLOYMENT Situation or Avousr 1983 28n

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioners seek a writ of certiorari to review the judg-

ment of the United States Court of Appeals for the Second

Circuit entered on June 22, 1983.

Opinions Below

The opinion of the United States Court of Appeals for

the Second Circuit has not yet been reported, but is re-

produced as Appendix I. The opinion of the United States

District Court for the Southern District of New York ren-

dered after trial is reported at 551 F.Supp. 917 (1982)

and is reproduced as Appendix II. The opinion of the

District Court on defendants’ motion for a new trial is

unreported, but is reproduced as Appendix III. The opin-

ion of the District Court on plaintiffs’ motion for a pre-

liminary injunction is reported at 477 F.Supp. 1051 (1979)

and is reproduced as Appendix IV.

Jurisdiction

The judgment of the Court of Appeals, reproduced as

Appendix VIII, was entered on June 22, 1983. The juris-

diction of this Court is invoked pursuant to 28 U.S.C.

§1254(1).

Constitutional and Statutory

Provisions Involved

The constitutional and statutory provisions which are

relevant to a determination of the issues raised by this

petition are the First, Fourth, Fifth and Ninth Amend-

ments to the United States Constitution and New York

City Local Laws 48 of 1979 and 1 of 1975. The text of

each of these constitutional and statutory provisions is set

forth in Appendix IX.

Statement of the Case

This action was brought by the named petitioners and

all others similarly situated to enjoin the enforcement of

New York City Local Law 48 of 1979 (“LL 48”), enacted

as New York City Administrative Code §1106-5.0, as ap-

plied to the plaintiff class, and to declare that LL 48 is

unconstitutional as applied to them. The District Court

had jurisdiction over this action pursuant to 28 U.S.C.

§§1331 and 1343(3). The District Court for the Southern

District of New York (Sofaer, J.) enjoined enforcement of

LL 48 pendente lite by order dated September 6, 1979.

A trial was held before the District Court between

November 6 and December 3, 1980. In a decision dated

November 24, 1982, and pursuant to a judgment entered

on January 10, 1983, the District Court declared LL 48

to be unconstitutional as applied to petitioners insofar as

it provides for the disclosure to the public of petitioners’

financial disclosure reports, but sustained the constitu-

tionality of LL 48 insofar as it requires petitioners to file

such reports with the City Clerk to be available to City

officials,

In a decision and judgment entered June 22, 1983, the

Court of Appeals for the Second Circuit affirmed that part

of the District Court judgment which held the filing require-

ment of LL 48 to be constitutional and reversed the Dis-

trict Court to the extent it held the public disclosure pro-

visions of LL 48 to be unconstitutional.

The Local Law Challenged

Local Law 48 of 1979 is the latest version of a financial

disclosure law passed by the New York City Council. In

1975 the City Council enacted Local Law 1 of 1975 (“LL 1”)

requiring disclosure of personal financial information by

certain elected and appointed New York City officials, and

by all other City employees who earned over $25,000. LL

1 was challenged in the New York courts which, in Hunter

v. City of New York, 58 A.D.2d 136, 396 N.Y.S.2d 186 (1st

Dept. 1977), aff'd 44 N.Y.2d 708 (1978), declared the law

invalid insofar as it contained no mechanism to prevent

automatic public disclosure of all information disclosed.

The City Council enacted LL 48, effective July 27, 1979,

to amend LL 1 to provide a mechanism through which em-

ployees could assert claims of privacy with regard to some

or all of the information required to be disclosed pursuant

to LL 1.

LL 48 requires disclosure of personal financial informa-

tion by (a) elected officials, including the Mayor, City

Council President, City Councilmen, Borough Presidents,

and Comptroller; (b) candidates for those elective offices;

and compensated members of any board or commission;

(d) City employees who are members of the managerial

pay plan; and (e) all City employees whose annual salary

is equal to or exceeds $30,000. App. LX at 221a-222a. Peti-

tioners are subject to the law solely because they earn in

excess of $30,000.

LL 48 requires that the same financial information be

disclosed by all those to whom it applies. Each individual,

and his/her spouse, must provide extensive information

about his/her personal finances, including, among other

items, the identity of professional organizations from which

the employee or a spouse derives $1,000 or more in income

during the preceding year; the source of capital gains of

$1,000 or more, other than from the sale of a residence; the

source of gifts or honoraria of $500 or more; indebtedness

in excess of $5,000 that is outstanding for 90 days or more;

and the nature of investments or trusts worth $20,000 or

more. App. IX at 214a-219a.

The reports are to be filed with and maintained by the

City Clerk and made available for “public inspection.”

LL 48 does not limit in any manner the persons who may

have access to the reports or the purposes for which access

may be sought. Any person required by LL 48 to file a

financial report may submit a request to withhold any

item “from public inspection on the ground that inspection

of such item by the public would constitute an unwarranted

invasion of his or her privacy.”’ App. LX at 223a. Such

claims must be in writing, set forth the reason why the

item should not be disclosed, and be filed prior to the

making of any request for inspection. Ibid.

LL 48 provides no mechanism through which an employee

can assert a privacy claim to avoid reporting privileged

information. Reportiig each year, presumably with re-

peated privacy claims, is required as to all matters cov-

ered by LL 48, including those as to which privacy is

claimed. The City Clerk is required to notify the person

who filed the report when a request for inspection has

been made.? App. LX at 224a.

Where a privacy claim has been filed, LL 48 provides

for the public members of the City Board of Ethics, all

of whom are appointed by the Mayor, to determine whether

the item should be withheld from public inspection. No

standards are specified, the statute only requiring that the

Board “consider” whether the item is of “a highly per-

sonal nature;” “in any way relates to the duties of the

position held by such person;” or “involves an actual or

potential conflict of interest.” App. IX at 225a. The pro-

cedures to be followed by the Board in considering with-

holding requests are not detailed, except that the person

who has filed a withholding request is permitted to explain

why the information should not be disclosed to the public.

App. IX at 225. The Board is required to’render a written

decision and forward that decision to the City Clerk, who

may then make the statement available for disclosure, ex-

1 By its terms, LL 48 does not permit an employee to assert the

privacy rights of others whose privacy ny = invaded by the

disclosure.

* LL 48 does not require that the notice identify the person re-

questing inspection, although the City maintained in its appellate

brief that that is the practice.

cepting only those items with respect to which a request

for withholding has been sustained by the Board. App. IX

at 226a. No provision for notice of the decision to the per-

son filing the report is included in LL 48.°

The Plaintij}s and Their Duties

The named petitioners represent four sub-classes of

plaintiffs: (i) Battalion Chiefs, (ii) Deputy Chiefs and

(iii) Medical Officers in the New York City Fire Depart-

ment (“FD”), and (iv) their spouses. The employee sub-

classes all consist of members of the FD who oecupy civil

service positions which they obtained through competitive

examinations and who are required by LL 48 to file finan-

cial disclosure reports solely because they earn in excess

of $30,000 each year. App. Il at 43a. The Chief Officers

rose through the ranks of the FD uniformed forces by

such competitive examinations. Jbid. None of the plain-

tiffs are elected officials, incumbents of an appointed posi-

tion or in a managerial position.‘ The District Court found

that they perform no policy-making functions. App. IT at

146a-147a; JA 137, 141, 166, 248, 280, 316.

The duties of a Battalion Chief are to supervise the op-

erations of the five to eight fire companies in his command.

This includes direct supervision at the site of a fire, and

ongoing supervision of training, equipment maintenance

and other operations of the fire companies in his battalion.

* An affidavit submitted by defendants in support of their motion

for a new trial asserted that the practice of the Board has been to

e such notice. See Joint Appendix in the Court of Appeals

(“JA”) 716.

‘There are ten Assistant Chiefs and seven Deputy Assistant

Chiefs designated as such from the civil service title of

Chief. These officers are not covered by collective bargaining while

they hold managerial positions and are not oe in this law-

suit, In addition, six Chief Officers are detailed to special assign-

aon Bey 2 senneees yaa oo 422.26. These 23 officers are

not the subject of the discussion herein as to non-manageriality

on the part of FD Chief Officers and Medical Officers,

JA 131, 133-35, 247. The duties of a Deputy Chief are to

supervise the operations of from three to four battalions.

This includes direct supervision at the site of a large fire,

and ongoing supervision of the training, equipment main-

tenance and other operations of the fire battalions in his

command. JA 131, 135-36,247, 280. Four Chief Officers

work in the Maintenance and Communications Divisions of

the FD; none of the other Deputy Chi*fs or Battalion

Chiefs, totalling more than 360, have any role in the pur-

chase of equipment, nor any authority with regard to the

expenditure of funds. JA 160, 397, 420, 424-25. The pur-

chase of equipment for the FD is done by the City Depart-

ment of General Services, not the FD. JA 397.

No opportunity for corruption exists in the inspection

duties of Chief Officers. Thére was discredited testimony

about such opportunity in respect of the duties of two of

the approximately 360 Chief Officers. As to this testimony,

the District Court found:

“Plaintiffs discredited much of this testimony ... and

presented credible evidence to the contrary. .. . plain-

tiffs’ evidence is far more credible.” (App. II at 77a).

The duties of a FD Medical Officer are to determine the

fitness for duty of members of the FD and to attend mem-

bers of the FD injured at the site of a fire. JA 165, 249,

299. The District Court expressly found that Chief and

Medical Officers in the FD have neither a history of cor-

ruption nor any significant opportunities for corruption:

“The offices of Fire Department Deputy Chief, Bat-

talion Chief, and Medical Officer, have a virtually cor-

ruption-free history. [JA 132-33, 164-65, 448, 452, 457,

522]. Officers employed in these positions have little

or no contact with the public. [JA 150-56). Deputy

and Battalion Chiefs principally perform line duties,

supervising their fire companies and on-site firefight-

ing activities. [JA 133, 247-50, 280, 316]. Their duties

do not involve policymaking, and provide no significant

opportunities for venality or conflict of interest. [JA

136-42, 150-56, 166, 247-50, 252, 280, 297, 299-300, 316,

389-522]. All of their duties are performed in the

company of at least one aide, and often of several.

Chief Officers rarely, if ever, pass on a matter that

has not first been acted and reported upon by several

other members of the Fire Department. Because tours

of duty rotate, a matter passed on by one Chief Officer

will often later come to the attention of another officer

of the same rank; and all matters are routinely re-

viewed by superior officers. Consequently, a high risk

of exposure attends the limited opportunities for cor-

ruption Chief Officers may have. Evidence presented

by the City reveals that only six of the approximately

400 Deputy and Battalion Chiefs have duties that pre-

sent them with any significant opportunity for cor-

ruption or conflict of interest. These individuals are

easily identified by job description. [JA 420-26]. With

the possible exception of these six individuals, policy

in the Fire Department is set by the Commissioner

and his immediate staff, none of whom is in a plaintiff

class. Fire Department Medical Officers also have vir-

tually no opportunity for corruption. Their principal

duty is administering medical treatment to firemen in-

jured in the line of duty, and determining an injured

fireman’s fitness for duty. They have no policymaking

responsibilities. Rotation of tours of duty makes it

highly improbable that any injured fireman will ever

be seen twice in succession by the same Medical Officer.

Although Medical Officers file the first report with

respect to pension eligibility of injured firemen, it is

impossible for a Medical Officer acting alone to falsify

a pension claim, given the administrative framework

governing pensions. [J A 164-67, 297-300, 408-12, 452].”

(App. TT at 146a-147a).

The FD Inspector General, who testified for the defendants,

conceded that “[t]here is... no proof whatsoever of a

single instance of active corruption or conflict of interest

activity by a Chief Officer.” App. II at 77a; JA 522.

The Privacy Interests Affected

The testimony at trial demonstrated that the financial

reporting and disclosure mandated by LL 48 will disclose

and make available for public scrutiny significant aspects

of the social, familial and associational activity in which

plaintiffs are engaged. JA 259. As Professor Alan Westin

of Columbia University, a leading authority on privacy and

presidential appointee on the National Wiretapping Com-

mission, testified:

“(While it calls itself financial privacy, what [LL 48]

is doing is putting on the record, through the vehicle

of money reporting, relationships that deal with in-

dividual, family, parent, child, associational activity

..” (JA 240),

The evidence also established that the information pro-

vided on financial disclosure forms, which pursuant to LL

48 are available to the public, will be widely disseminated.

The defendants’ expert testified that reporters have been

the most common source of interest in the financial dis-

closure forms his office has collected. JA 368, And in the

past The Daily News, a widely read New York City news-

paper, has published stories based upon information re-

vealed in financial disclosure forms or FD lists of extra-

departmental employment. JA 174."6, The District Court

found:

“Among those likely to use the forms are insurance

salesmen seeking customers, T. [Transcript] 423, fam-

ily members or neighbors seeking knowledge of the

filer’s financial capacity for a variety of purposes,

[JA 285-89], former spouses seeking te determine

ability to pay alimony, [JA 344], business organiza-

tions seeking investors or customers, public interest

or other charitable organizations seeking contribu-

tions, and commercial interests seeking to expand mail-

ing lists, [JA 203]. As noted above, public disclosure

may lead to embarrassmeut that one lives above or be-

low one’s means, and will reveal many associations.

The impact will be felt with respect to the disclosure

of virtually every class of financial information speci-

fied on LL 48—sources of outside income, e.g., T. 295,

345, gifts and reimbursements, e.g., [JA 318], amount

and address of real property, e.g., T. 551; [JA 548-49],

identity of creditors and amount of debt.

Filers will also lose the power to minimize specific and

reasonable fears for their own safety, their family’s

safety, and the security of their property. T. 327-28,

532; T.D. 178-79.” (App. IT at 87a-88a).

It was also established at trial that the financial disclo-

sure mandated by LL 48 will compel many plaintiffs to

redefine their marital relationships.’ Financial disclosure

pursuant to LL 48 will compel the employee plaintiffs to

obtain financial information from their spouses to which,

in many cases, they have not previously been privy. Joan

Clinton, the named plaintiff representing the spouse sub-

class, testified that compulsory disclosure to her husband

of how she spent her salary, as would be required for him

to comply with LL 48, would strain their marriage of

twenty-six years:

“T think we have always just trusted one another that

‘whatever you are doing is fine with me’, and I would

5 Professor Westin testified :

“(T]he boundaries of information between husband and wife

are extraordinarily subtle and sensitive, especially at a time

when women . .. are having independent careers and indepen-

dent income . . . [so that] now you often have two working

partners, each with their monies and making decisions about

what they disclose, and I think that this automatic require-

ment of total disclosure on the part of the spouse .. . raises

very serious questions of family privacy and of spousal privacy

and threatens the balances that have to be set very sensitively

inside families, and the same thing I think takes place with

parent and child.” (JA 231),

resent his picking at what I did with my money.” (JA

293-94).

Similarly, according to plaintiff Frank D’Amico,—who, by

design, had never disclosed to his spouse the full extent

of his financial dealings—he would be compelled by LL 48

to make this disclosure because she might learn of these

through the press; such disclosure to his spouse at this

late date of information that had previously been with-

held would create marital strains and misunderstanding

between husband and wife. JA 309-10,

LL 48 requires an empioyee to make full disclosure of

all financial information regarding his spouse and depen-

dents, Where the employee has previously had access to

that information, it has been provided by his spouse in

most instances on the assumption that that information

will not be further disseminated.’ Thus LL 48 requires

plaintiffs to redefine their marital relationships and, in

particular, the way that they exchange money and infor-

mation with their spouses.

In similar fashion, LL 48 will compel plaintiffs to re-

define their relationships with their children. Plaintiffs

Brian Clinton and Frank D’Amico testified that they have

not revealed the extent of their financial assets to their

children in order to encourage the development of a sense

of self-reliance in the children. Public disclosure of their

assets would compel those plaintiffs to reveal to their

children information that they have intentionally kept

from them in the past in order to promote what they re-

gard as proper values. LL 48 would change the dialogue

* Professor Hannah Levin, a psychologist wtih special expertise

in the privacy area, associated with Rutgers Law School and Albert

Einstein College of Medicine, testified :

“A marriage is certainly built on expectation of a limited dis-

closure and trust between the husband and wife... [LL 48

compels a husband) to divulge information really given on the

conditions of what I would call limited disclosure . . . an

expectation that that is as far as the information will go.”

(JA 265-66).

within those plaintiffs’ families, in effect requiring them

to discuss their financial holdings with their children.

Moreover, limited disclosure practiced in the past in the

interest of promoting proper values would result in those

parents appearing untrustworthy to their children when

their true financial status is revealed. JA 263, 265, 285-86,

308-09.

The testimony at the trial also established that public

disclosure of plaintiffs’ finances will strain relationships

with friends, neighbors, and charitable and religious or-

ganizations because, in many cases, it will reveal a financial

status inconsistent with that projected by plaintiffs. In

some cases, plaintiffs will have presented themselves as

having more substantial income and assets than they ac-

tually possess. In others, they will have given the impres-

sion that their financial status was more modest than it

is. But whether they have lived above or below their means,

the discrepancy between the image of their financial status

projected to others and the income and assets they in fact

possess will result in lost credibility for the persons un-

masked. This will result in their subsequently being re-

garded as untrustworthy by those who feel that they have

been deceived. App. II at 87a; JA 258-60. In addition, if

the disclosure reveals that one’s income and assets are

less than he projected, that will result in a loss of status

for the individual among his peers. JA 261.’

According to defendants’ expert witness, the experience

in Alabama has been that at least 200 government officials

resigned as a result of the enactment of that State’s finan-

cial disclosure law. JA 369-70. Certain doctors who were

™The proof also showed that Medical Officers will have to list

the name of every patient who paid them in excess of $1,000 and

the nature of the service provided. JA 303. For the named plain-

tiff Dr. Fell, he would be required to make such disclosure as to

approximately 100 patients. /bid. And it was also testified by one

laintiff that the disclosure of his address and assets will make

a target for burglars, and facilitate retaliation against plain-

tiffs. JA 320-320a.

professors at the University of Alabama Medical Center

indicated that they would probably resign, but remained

when informed that they had been exempted from the

financial disclosure law. JA 369.

Disclosure will, further, “chill” plaintiffs in the choice

of activities and associations that may be reflected in the

financial information they must reveal. The testimony dis-

closed that fear that such activity or associations will be

revealed, and may be disapproved, by someone sometime

in the future will, in many cases, foreclose certain lawful

and constitutionally protected activities and associations.

JA 232, 261-62, 265.

The Purposes Served by LL 48 as Applied to Plaintiffs

Defendants, on the other hand, offered no proof at the

trial to establish that LL 48 serves any legitimate govern-

mental purpose as applied to members of the plaintiffs’

class.

(a) There was no evidence that disclosure pursuant to

LL 48 will deter plaintiffs from engaging in acts of cor-

ruption or conflict of interest.

(b) There was no evidence that disclosure pursuant to

LL 48 is effective in educating plaintiffs as to potential

conflicts of interest.

LL 48 will provide investigative information to the FD

that would not otherwise be available.*

§In Plante v. Gonzalez, 575 F.2d 1119 (1978), cert. den. 439

U.S. 1129 (1979) (“Plante”), the Court of Appeals for the Fifth

Circuit noted that financial disclosure by public officers or em-

ployees “may well be useless” as a tool for the detection of con-

flicts of interest :

“(The plaintiffs} make the reasonable point that few officials

mi to make a public disclosure of illegal income.” (Id.

at :

This places in serious doubt the speculation of the Second Circuit

here on the role which public disclosure of plaintiffs’ finances

(d) There was no evidence that disclosure pursuant to

LL 48 will increase public confidence in Chief Officers or

Medical Officers in the FD.

The evidence demonstrated, instead, that all of the in-

formation that the FD would obtain through financial dis-

closure pursuant to LL 48 is already available to the FD

pursuant to authority vested in the FD Inspector-General

_ to require any of the plaintiffs to provide information re-

garding any matter related to official duties, including

financial information relevant to an authorized ongoing

investigation. This could include all of the information

disclosed pursuant to LL 48. JA 705-06, 430-31. According

to the FD Inspector-General, the FD’s use of LL 48 as a

source of information would be equally well-served with-

out the public disclosure mandated by LL 48. JA 471-72.°

could play in the detection of corruption. The Court of Appeals

found that public disclosure of plaintiffs’ finances pursuant to LL

48 served an important governmental purpose in that the media

could review the disclosure statements and prod the government to

investigate instances of corruption and conflicts of interest. App. I

at 18a. But if the forms are unlikely to contain disclosure of

illegal income, as the Fifth Circuit noted, they are likely to be of

little or no use for the detection of corruption.

* Any act of corruption or conflict of interest by plaintiffs is a

violation of the New York Penal Law (Art. 195, 200), the New

York City Charter (§2604), and FD regulations specifically ad-

dressed to conflict of interest problems (JA 481-83). Any plaintiff

who engages in corrupt practices or conflict of interest is subject

to criminal prosecution, loss of his job, and loss of his pension.

Plaintiffs are aware of these consequences because the PD regu-

larly and frequently informs all FD members of them (JA 441) ;

plaintiffs’ promotional examinations test for knowledge of these

matters (see Exec. Order 16 § 8[{b}j; Defendants’ Exhibit [“Def.

Ex.”] T). The District Attorney, the New York City Department

of Investigation, and at least 168 investigators in the offices of the

FD Inspector-General and the Fire Marshal (see JA 445-46), are

all charged with the investigation of corruption and the prosecu-

tion of those found te be engaged in corrupt acts or conflicts of

inteerst. In addition, experienced FD personnel testified, without

contradiction, that the failure of a Chief Officer to properly per-

form his duty would so expose himself and his co-workers to a sub-

stantially increased risk of serious injury or death as to constitute

an effective deterrent to corruption. See, ¢.g., JA 146-49, 161-62,

Financial Disclosure Laws in Other Jurisdictions

LL 48 is the most invasive of financial disclosure laws

in its combination of range of officials/employees reached

and disclosure mandated. The overwhelming majority of

the laws in effect in other jurisdictions do not require

financial disclosure by career civil servants in positions

such as plaintiffs. In fact, the financial disclosure statutes

enacted by most jurisdictions do not reach employees, as

distinct from officials, at all. The National Municipal

League Model State Act, for examp'e, which the defen-

dants’ expert on financial disclosure iaws helped to draft,

limits financial disclosure to “state officials.” Def. Ex. C

at §9(a). Most of the laws that do reach employees, and

some of those that apply only to officials, restrict compul-

sory financial disclosure to the incumbents of certain enu-

merated positions.*® These positions have, presumably,

been selected as those that include policy-making functions

and/or present opportunities for corruption or conflicts of

interest. A few states have attempted to achieve the same

objective by expressly limiting financial disclosure to those

who occupy a “major policy-making position” or “are au-

thorized to receive or disperse State or Federal funds.” ™

Only five states use a salary figure to determine the

employees required to file financial disclosure statements.”

Those statutes do so as a means to separate out policy-

making positions. The defendants’ expert on the operation

of financial disclosure laws conceded that Congress re-

quired financial disclosure only of those above GS 16 in

1 See, e.g., Cal. Govt. Code Ann. §87200; Hawaii Rev. Stat.

§84.17(c) (1979 Supp.); Minn. Stat. Ann. §10A.01(18) (1980

Supp.) ; Ore. Rev. Stat. §244.050 (1980) ; So. Car. Code §8-13-810

(1980 Supp.).

" Ark. Stat. §12-3002(e) ; Mass. Gen. Laws Ann. Ch. 268B §1(0)

(1980 Supp.).

1 Ala. Code §§36-25-1 to 16 (Cum. Supp. 1979); I. Ann. Stat.

Ch. 127 §604A-101 to 107 (Smith Hurd 1973) (Cum. Supp. 1982) ;

9 N.Y.C.R.R. (A)3.10; Ohio Rev. Code Ann, §102.U1 (Cum. Supp.

1982) ; Wis. Stat. Ann, §19.43 (West Cum. Supp. 1982-83).

the federal service because “that begins. ior lack of a bet-

ter term, a super grade.... They would not have to go

-hrough the regular civil service steps to reach a 16.” Tr.

November 12, 180 at 368. Similarly, Common Cause

udopted a $20,000 figure when it drafted its model act

because “only those officials in important decision-making

positions must file disclosure statements.” JA 333.

With respect to the information to be disclosed, most

financial disclosure statutes, working from a conception

like that of the Fourth Amendment, “link the kind of in-

formation that is required to be disclosed to some real

sense of opportunity for conflict of interest occurring

within the job context, or a history of corruption which

has taken place.” Tr. November 6, 1980 at 183. In addi-

tion, most statutes exempt from disclosure certain infor-

mation that is regarded as infringing unduly upon consti-

tutionally- protected interests. The federal Ethics in Gov-

ernment Act of 1978 applicable to federal judges, for ex-

ample, exempts intra-familial gifts, debts and financial

transactions from its reporting requirement. 28 U.S.C,

App. §§302(a)(2)(A), (a)(3), (a)(5). That law also ex-

empts from reporting all real property held for residen-

tial purposes, mortgages on personal residences, and most

loans secured by a personal motor vehicle or household

effects. 28 U.S.C. App. §§302(a)(3), (a)(4). The Ethics

in Government Act expressly exempts “the reporting of

positions held in any religious, social, fraternal, or political

entity... .” (28 U.S.C. App. §302[a][6]), and distin-

guishes in its reporting between a “judicial officer” and

others subject to its disclosure requirement, requiring less

extensive disclosure from the latter (28 U.S.C. App. §302

(f][2]). Similarly, the financial disclosure law challenged

in Plante, supra, excluded intra-familial gifts and real

property owned for residential purposes from its report-

ing requirement. 575 F.2d at 1138-39. Thus these laws

are carefully tailored to avoid unnecessary intrusions upon

constitutionally-protected interests.

The Decisions Below

The District Court opinion is a comprehensive review

of the record and the law governing the issues presented

here by a judge who is exceptionally knowledgeable of the

area. The care and thoughtfulness of the opinion make it

appropriate to reference rather than paraphrase it in all

but its major aspects. Accordingly, although we disagree

with that opinion in some respects, in particular its treat-

ment of the filing provisions of LL 48 and plaintiffs’ First,

Fourth and Fifth Amendment claims,"* we regard that opin-

ion as the starting-point for our discussion.

The District Court held the public disclosure provisions

of LL 48 to be unconstitutional, saying that “the public

disclosure aspect of the challenged law would interfere

substantially with [plaintiffs’) privacy interests in auton-

omy and confidentiality”; and that because “[p]laintiffs

public disclosure component of LL 48 serves no defensible

purpose with respect to plaintiffs in this case.” App. IZ

are not elected, and they lack policymaking roles,” “the

at 37a-38a,

The Court determined that the $30,000 salary figure em-

ployed by LL 48 to determine which employees are re-

quired to file financial disclosure reports “is only tangenti-

ally related to the statute’s purposes, and wholly unneces-

sary.” App. II at 1lla. The Court found that the City

Council had known that the statute was both over and

under-inclusive at the time it was enacted and “had no

need to draw an arbitrary line.” App. II at 115a. The

Court continued:

“LL 48 was carefully written to cover all the important

elected and policymaking offices in City Government.

13 We, of course, reserve these claims in the event this petition

is granted. In our view, all claims based on the right to privacy

ultimately turn on whether the plaintiffs have a reasonable expec-

tation of privacy with respect to the matter for which privacy is

claimed. At the trial of this matter, plaintiffs showed by uncon-

tradicted testimony the nature of that expectation for individuals

in their positions, See supra at 8-12,

.... Only after covering all these offices does the stat-

ute seek to include all employees earning over $30,000.

The $30,000 line cannot, therefore, be justified as neces-

sary to include any of the elected or policymaking

personnel in City government. To the extent the City

Council believed that coverage of offices in addition

to those expressly covered was necessary, it could have

examined particular job categories and specified which

ones were to be covered; or it could have delegated

the screening task to the Board of Ethics, an agency

already created to deal with conflict-of-interest prob-

lems. As the record of the City Council’s deliberations

demonstrates, the City refused both to do the work

itself, or to delegate it. Rather, it simply decided to

draw an unnecessary line, only tenuously related to

its objectives, and in ignorance of the relevant facts.

Such a line is entitled to no special deference.” (App.

II at 115a-117a) (footnote omitted),

Finally, the Court found that the privacy mechanism,

which alone distinguishes LL 48 from a predecessor stat-

ute held unconstitutional by the New York Court of Ap-

peals in Hunter v. City of New York, supra, “will not pre-

vent, and in some ways will exacerbate, invasions of legiti-

mate expections of privacy.” App. IT at 9la. The Court

recognized that certain of the constitutionally cognizable

privacy concerns raised by plaintiffs will not qualify for

protection under the standards applied by the Board of

Ethics and, accordingly, private information would be dis-

closed to the public despite the privacy mechanism. The

Court concluded that the privacy mechanism was inade-

quate:

“Whatever value the statutory mechanism may have is

negated by the indefinite delay that occurs before a

claim of privacy is resolved [i.e., the privacy claim is

not decided until a request is made for access to the

claimant’s financial disclosure report].... During that

period of uncertainty, the filer and his spouse must

live with the continuing possibility of public disclosure.

.... The statutory mechanism does nothing to allay the

anxiety caused by loss of control over, and indeed less

of knowledge about, what information will eventually

be communicated to the public. ...

Furthermore, the requirement that employees detail

in writing their privacy claims will in many cases con-

dition the opportunity to avoid one invasion of privacy

on accepting a second, even more intrusive invasion.

The reasons financial information may be private or

personally embarrassing will almost always be more

personal and private than the information itself... .

Finally, the privacy mechanism of LL 48 has the effect

of placing in special jeopardy persons who succeed in

obtaining protection from disclosure of particular

items:

Since their reports will be publicly available except

for materials deemed to be protected, the public

will be placed on notice that [a specific] aspect of

the financial lives of these individuals is ‘highly

personal’....

Slevin v. City of New York, 477 F.Supp. at 1058. The

‘privacy mechanism’ will therefore have the effect of

flagging ‘highly personal’ aspects of a person’s life to

the public, thereby inviting focused intrusions by the

press.” (App. II at 93a-97a).

The District Court held, however, that the statute is con-

stitutional insofar as it requires plaintiffs to file financial

reports with the City. The Court observed that the injury

to plaintiffs’ privacy interests resulting from the filing of

the disclosure reports is less substantial than that result-

ing from tbe public disclosure of the reports and that the

City “is entitled to opt for a centralized system of monitor-

ing its employees’ finances, even if the new procedure is

less comprehensive than some departmental procedures.”

App. II at 79a. The District Court noted that “[fJiling

will necessarily compromise a spouse’s desire to keep secret

his or her finances from the filing employee.... [B]ut this

interest, though substantial in some families, is insufficient

to invalidate the filing requirement....” App. II at 75a;

footnote omitted. The Court found that “[i]f the central-

ized disclosure procedure mandated by LL 48 serves valid

governmental objectives, then requiring information about

spousal finances is necessary to make it effective.” App.

II at 80a. The Court also rejected plaintiffs’ claims that

LL 48 violated their rights »nder the First, Fourth and

Fifth Amendments to the United States Constituion. App.

II at 48a-58a. The Court held that the LL 48 disclosure

provisions, which it invalidated as applied to plaintiffs,

could be severed from the statute’s filing provisions, whose

constitutionality it sustained because of the presence of a

severability clause. App. II at 137a-139a.

With respect to the constitutionality of the filing provi-

sions of LL 48, the opinion of the Court of Appeals parallels

that of the District Court. With respect to the constitution-

ality of the public disclosure provisions of the ordinance,

however, the opinion of the Court of Appeals diverges

markedly from that of the District Court.

In particular, the Court of Appeals rejected the District

Court’s analysis of LL 48’s privacy mechanism. Relying

upon a post-trial affidavit of one of the members of the

Board of Ethics created by LL 48 to review “privacy

claims” (see supra at 4) and representations in the City’s

appellate briefs, the Court of Appeals found that the

“statute’s privacy mechanism adequately protects plain-

tiffs’ constitutional privacy interests.” App. I at 14a. The

Court then deferred to the City’s assertion that the public

disclosure provisions of LL 48 serve legitimate govern-

mental interests:

“In this case, we cannot say that it was unreasonable

for the City Council to conelude that public disclosure

would materially advance the City’s attempt to prevent

corruption and conflicts of interest.” (App. I at 19a),

The Court of Appeals agreed with the District Court

that the $30,000 salary figure was both over-inclusive and

under-inclusive as a determinant of the employees subject

to LL 48. However, the Court held that such imprecision

was not sufficient to invalidate the public disclosure provi-

sions of LL 48. App. I at 19a-20a.

REASONS FOR GRANTING THE PETITION

This Case Turns Upon Important Questions of Fed-

eral Constitutional Law Which Have Not Been, But

Should Be, Settled by This Court.

In our view this case raises with unique clarity the issue

whether every public employee, and not just elected or

high or policy-making officials, substantially forfeits his/

her privacy solely by reason of such employment. That is

the effect of the decision of the Court of Appeals which

sustains the constitutionality of a local law compelling dis-

closure of private financial information by employees

whom ithe District Court found to perform no policy-

making functions and have no significant opportunity for

corruption. Pursuant to that ordinance, information which

traditionally has been regarded by the employees affected,

their employer, their spouses, and our society in general

as private information, must be yielded up by such em-

ployees and then made available to the public at large.

The issue presented on this petition is whether there is

any distinction of constitutional significance between the

plaintiffs and the Mayor of the City of New York with

respect to the private financial information which the pub-

lic can legitmately expect that individual to disclose as a

condition of governmental employment.

The Court of Appeals, in effect, invited this Court’s

clarification of the constitutional dimensions of the right

to privacy in the circumstances:

“The exact nature and scope of the right to privacy

has never been fully defined.” (App. I at 8a).

After reviewing the discussion of the right to privacy

by this Court in Whalen v. Roe, 429 U.S. 589 (1977)

(“Whalen”), Niron v. Administrator of General Services,

432 U.S. 425 (1977) (“Nixon”), and Paul vy. Davis, 424

U.S. 693 (1976), the Second Cireuit described the state of

the law as follows:

“The nature and extent of the interest recognized in

Whalen and Nixon, and the appropriate standard of

review for alleged infringements of that interest, are

unclear.” ** (App. I at 9a).

As the determination of this case turns upon the manner

in which the right to privacy is defined and the standard

of review to be applied when a statute is challenged as

allegedly violative of that constitutional right, the per-

4 This view is concurred in by the law review commentators on

the right to privacy, who note, in particular, the conflicting deci-

sions of the Courts of Appeals discussed infra at 22. See e.g.,

Note, The Constitutional Right to Withhold Private Information,

77 Nw. U. L. Rev. 536, 547-64 (1982); Note, The Constitutional

Right To Confidentiality, 51 Geo. Wasu. L. Rev. 133, 139-43

(1982); Note, Constitutional Limitations On Florida’s Financial

Disclosure Laws, 31 U. Fua. L. Rev. 872, 892 (1979); Case Com-

ment, A Constitutional Right To Avoid Disclosure Of Personal

Matter: Perfecting Privacy Analysis In J.P. y. DeSanti, 71 Geo.

L.J. 219, 220-21, 230-31 (1982); Comment, Constitutional Law—

A Missed Opportunity For Clarification—Hollenbaugh v. Carnegie

Free Library, 4 W. New Ewa. L. Rev. 171-73 (1981). Numerous

commentators have urged this Court to clarify the nature and

scope of the right to privacy in order to assist the lower courts

in applying that right to cases before them and to resolve the con-

flicting decisions of the lower courts:

“J.P. v. DeSanti creates a split among the federal courts of

appeals as to the existence and nature of a constitutional

right to nondisclosure of personal matters. The time is there-

fore ripe for the Supreme Court again to address the issue of

the existence and nature of this right. The Court should

clarify its ambiguous holding in Whalen and provide viable

guidelines for courts to follow when confronting nondiselosural

privacy claims.” (71 Geo. L.J., supra, at 251).

Accord, 77 Nw. U. L. Rev., supra, at 548; Note, The Interest In

Limiting The Disclosure of Personal Information: A Constitu-

tional Analysis, 36 Vanp. L. Rev. 139, 196 (1983); 4 W. New Ewe.

L. Rev., supra, at 173

ceived lack of clarity on those two issues, central to this

and other cases implicating like fundamental and liberty

interests, make this the appropriate occasion for this Court

to provide the clarification now sought,

The Courts of Appeals are in clear disagreement on the

constitutional dimensions of the right to privacy after

Whalen and Nixon. In J.P. y. DeSanti, 653 F.2d 1080, 1087-

91 (1981), the Sixth Circuit even questioned the existence

of a general “confidentiality” right as a component of the

privacy interest protected by the Constitution:

“Absent a clear indication from the Supreme Court we

will not construe isolated statements in Whalen and

Nizon more broadly than their context allows to reeng.

nize a general constitutional right to have disclosure

of private information measured against the need for

disclosure.” (653 F.2d at 1089),

The Courts of Appeals for the Second, Third and Fifth

Circuits are in clear disagreement with the Sixth Circuit.

See Schachter v. Whalen, 581 F 24 35 (2d Cir. 1978) ; United

States v. Westinghouse Electric Corp., 638 F.2d 570, 577-78

(3d Cir, 1980); Plante, 575 F.2d at 1135.

The confidentiality interests implicated by the financial

disclosure scheme of LL 48 are more substantial than those

at issue in the prior cases involving the right to privacy

decided by this Court, In California Bankers Assn. y.

Shultz, 416 U.S. 21 (1974) (“Shultz”), this Court recog-

nized that substantial constitutional interests are impli-

cated by the disclosure of private financial information

about individuals. In language which would be adopted by

the majority of this Court in Buckley v. Valeo, 424 U.S. i,

18 Among the latter courts, there is broad disagreement as to the

nature and extent of the “confidentiality” interest protected by the

Constitution, even as there appears to be on this Court. The dis-

sent of the Chief Justice in Viron construes the “confidentiality”

interest to be both broader and more fundamental to our constitu.

tional fabric than the majority of this Court, and apparently sub-

ject to a different standard of review, See 433 U.S. at 526.36.

66 (1976), Justice Powell, in an opinion joined by Justice

Blackmun, emphasized in Shu/tz the extent to which finan-

cial disclosure may implicate the most private realm of an

individual:

“In their f 1] reach the reports apparently authorized

by the open-ended language of the Act touch upon in-

timate areas of an individual's personal affairs. Finan-

cial transactions can reveal much about a person’s ac-

tivities, associations and beliefs.” (416 U.S. at 78-79).

Justices Powell and Blackmun concurred with the Court’s

determination that the Bank Secrecy Act of 1980 was con-

stitutional only because the Act, which required banks to

report transactions in excess of $10,000 to the Secretary

of the Treasury, had been narrowed by the Secretary’s

regulations. Jd. at 78-79. Justices Brennan, Douglas and

Marshall dissented in that case and would have held the

reporting requirements to be unconstitutional. Jd. at 79-99.

The intrusion upon plaintiffs’ constitutionally-protected

interest in confidentiality effected by LL 48 is much more

substantial than that at issue in Whalen, Nixon or Shultz.

None of those cases involved disclosure to the publie of

any information. In Nirvon the arguably private materials

would be subject to the review only of archivists and would

be returned to Mr. Nixon immediately after the materials

were screened and determined to be personal in nature.

This Court noted that “only a minute portion of the ma-

terial implicates [President Nixon’s] privacy interests”

because almost all related to the performance of his official

duties. 433 U.S. at 458-59. In Whalen the statute provided

for the retention by the State of New York for five years

of all prescriptions dispensng certain potentially harmful

drugs. This Court emphasized that the statute prohibited

public disclosure, that the State had established elaborate

precautions to assure against inadvertent disclosure, and

that the statute provided for the destruction of the records

after five years, 429 U.S. at 593-95, 597, 600-01. And in

Shultz, the information was obtained from banks, not in-

dividuals, and was subject to disclosure only to government

agencies engaged in criminal investigations. Pursuant to

LL 48, the private information obtained from the plain-

tiffs includes complete financial information about plain-

tiffs and their spouses, and will be indiscriminately dis-

seminated to any member of the public who requests

access,’*

The confidentiality interest implicated by LL 48 would

appear to be substantial, as the District Court found. App.

II at 37a. This Court’s precedents which discussed the

nature and extent of the confidentiality interest, support

the District Court in its findings. However, the Court of

Appeals, while noting the District Court’s finding that

“fpjublie disclosure will directly and materially affect the

confidentiality interests of filers and their spouses” (App.

I at 14a), treated the interest at issue as if this were a

challenge to some form of economic regulation (see infra

at 25), not as a right, interest or value entitled to the

protection accorded the confidentiality aspect of privacy.

This divergence of treatment of the confidentiality interest

by the Court of Appeals and the District Court indicates

the need for this Court to clarify the confidentiality in-

terest protected by the constitutional right to privacy.

This case also confirms that the autonomy interest pro-

tected by the constitutional right to privacy is likewise in

need of the clarification which only this Court can provide.

The Court described the scope of the autonomy phase of

privacy as follows in Zablocki v, Redhail, 434 U.S. 374, 385

(1978), quoting from Carey v. Population Services Inter-

national, 431 U.S. 678, 684-85 (1977):

“While the onter limits of [the right of autonomy]

have not been marked by the Court, it is clear that

among the decisions that an individual may make with-

out unjustified government interference are personal

® The sole exception to this unlimited access extends only to in-

formation which the Board of Ethics, at a later date, may find to

be protected under the privacy mechanism,

decisions ‘relating to marriage, Loving v. Virginia,

388 U.S. 1, 12 (1967); procreation, Skinner v. Okla-

homa, ex rel, Williamson, 316 U.S, 535, 541-542 (1942) ;

contraception, Eisenstadt v. Baird, 405 U.S. 453-454;

Id. at 460, 463-465 (White, J., concurring in result) ;

family relationships, Prince v. Massachusetts, 321 U.S.

158, 166 (1944): and child rearing and education,

Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925);

Meyer v. Nebraska, 262 U.S. 390, 399 (1923).’”

The Court of Appeals here noted its uncertainty as to

the application of the autonomy analysis to this case:

“Tt is unclear whether financial disclosure laws signifi-

cantly implicate any interest protected by the auton-

omy strand of the right to privacy. The Fifth Cireuit

has concluded that the autonomy interest does not

cover ‘financial privacy.’ Plan‘e v. Gonzalez, supra,

575 F.2d at 1132: see also O’Brien vy. DiGrazia, 544

F.2d 543, 545 (1st Cir. 1976), cert. denied, 431 U.S.

914 (1977).” (App. I at 8a).

That Court continued:

“The District Court in this case however, after a care-

ful analysis decided that financial disclosure laws may

sometimes ‘substantially, albeit indirectly, affect recog-

nized autonomy interests.” (App. I at 9a).

The evidence introduced at the trial of this matter, we

believe, establishes that LL 48 will interfere with the most

intimate aspects of the private realm protected by the con-

stitutional right to privacy—the structure of the marital

relationship. As we have seen (supra at 8-12), LL 48 will

compel plaintiffs to redefine marital and family relation-

ships in fundamental ways. This will inexorably alter the

pattern of communication and decision-making that has

existed within the families of many of the plaintiffs. That

interference is no less substantial because the City has not

directly declared that henceforth plaintiffs must structure

their families to allow for full communication of financial

information between spouses. That is the necessary effect

of a law that requires such communication in order for

plaintiffs to comply with its terms.”

Thus the proper determination of this case by the lower

courts requires the further definition of the autonomy in-

terest protected by the constitutional right to privacy.

The courts are in disagreement as to the extent of that

interest and whether it is even implicated by the case at

bar. We believe that it is, but this Court’s review is neces-

sary to make this clear to the Courts of Appeals.

As might be expected where the courts are in disagree-

ment on the nature of the interests protected by the con-

stitutional right to privacy, there is also a need for clarifi-

cation as to the standard of review to apply here. This

Court has required legislation that infringes upon recog-

nized autonomy interests to promote a compelling state

interest and to be the means to accomplish that purpose

that is leas intrusive of the constitutionally-protected in-

terest. Roe v. Wade, 410 U.S. 113, 115 (1973); Griswold

v. Connecticut, 381 U.S. 479, 485-86 (1965). This Court

recently reaffirmed that a statute which imposes an “in-

direct” burden on autonomy interests protected by the con-

stitutional right to privacy must he shown to advance a

“compelling state interest” to survive constitutional chal-

lenge. Akron, supra, 76 L.Ed.2d at 701. And at least two

members of this Court would appear to apply a strict

scrutiny analysis to the determination of plaintiffs’ claims,

even absent a demonstration that autonomy interests are

implicated, as we believe they are, Niron, 433 U.S. at 526-

27 (Burger, C.J.) ; Whalen, 429 U.S. at 606 (Brennan, J.),

The impact of LL 48 on marital and familial decision-making

cannot be minimized by characterizing it as “indirect.” City of

Akron v. Akron Center for Reproductive Health, Ine., US.

——, 76 L.Ed.2d 687 (1983) (“Akron”): Doe vy. Bolton, 410 US.

179 (1973) ; Planned Parenthood of Central Missousi vy. Danforth,

428 U.S. 52 (1976). In those cases, the Court held that the impo-

sition of conditions upon an individual's decision-making would

invoke the constitutional right to privacy in the same way that an

absolute prohibition of a certain option would, See Akron, supra,

76 L.Ed.2d a 696 nl,

Here both the Court of Appeals and the District Court

employed what they described as some form of interme-

diate scrutiny, characterized by a “balancing” test, but they

appear to mean very different things by that term. The

District Court concluded:

“The plaintiff classes in this case have demonstrated

that public disclosure of their finances will substan-

tially and adversely affect recognized privacy interests,

while serving no substantial public purpose.” (App. II

at 46a).

The Court of Appeals, while articulating a similar stan-

dard, appeared to apply in practice a “rational basis”

test. App. I at lla. To reach this result the Court of

Appeals treated the plaintiffs’ challenge to LL 48 as if it

were a facial challenge to the law, which it expressly is not.

Thus the Court of Appeals ignored the following District

Court findings:

“The City made no attempt at trial to establish that

public disclosure of the information secured from

plaintiffs by LL 48 would enhance to any extent the

investigation or deterrence of corruption or conflicts.

Indeed, the City’s principal witnesses explicitly dis-

claimed any such result....

These concessions cannot be disregarded. They strongly

buttress plaintiffs’ claim that public disclosure of vir-

tually every aspect of plaintiffs’ finances could not con-

ceivably lead to publie .crutiny that affects public con-

fidence in government.” (App. II at 101la-103a).

Defendants offered no evidentiary support for their asser-

tion that LL 48 furthered any governmental purpose as

applied to the plaintiffs. Nonetheless, the Court of Ap-

peals sustained the law in its entirety on the basis of defen-

dants’ conjecture as to governmental purposes which the

law might further, as if it were applying a “rational basis”

test:

“In this case, we cannot say that it was unreasonable

for the City Council to conclude that public diselosure

would materially advance the City’s attempt to pre-

vent corruption and conflicts of interest.” (App. I at

19a).

Such deference, we submit, is not appropriate where recog-

nized interests in confidentiality and autonomy are at issue.

The District Court concluded that although “the precise

standard of review remains a subject of dispute” (App. I

at 67a), LL 48 transgressed any standard appropriate to

the privacy interests affected because “to the extent LL 48

provides for disclosure to the public of all information col-

lected from the plaintiff groups, limited only by the stat-

ute’s ‘privacy’ mechanism, it fails to satisfy any standard

of review other than on an improperly ‘toothless’ applica-

tion of ‘mere rationality’ ” (id. at 72a). And yet, although

the Court of Appeals nominally adopted the same standard

of review as the District Court, that Court held the public

disclosure provisions of the statute to be constitutional in

an opinion which would appear to sustain the ordinance

as applied to any public employee.

The privacy interests implicated by LL 48 raise increas-

ingly significant issues because ot the prevalency of laws

or regulations requiring financial disclosure by public offi-

cials or employees.’* Moreover, as the District Court

pointed out, the number of persons employed by govern-

ment has substantially increased in the last decade, thereby

subjecting an increasing proportion of the population to

such laws.'*® See App. II at 142a-14sa.

18 Our research indicates that thirty-seven states and the District

of Columbia have financial disclosure statutes or regulations at

present. In addition, the federal government and numerous local

governments require certain of their ofticers or employees to under-

take some form of financial disclosure pursuant to statute or

regulation.

19 As of August 1983, public employees represent 17.5% of the

total non-agricultural workforce, U.S. Bureau or LaBor STATIS-

mics, Dep't or Lanor, EMPLOYMENT SITUATION OF Avoust, 1983,

TaBLe Bl,

This case presents a unique opportunity to clarity the

privacy interests affected by such laws and the standard

of review to be applied. The parties have developed at trial

an extensive evidentiary record as to the nature of the

privacy interests impaired by LL 48 as applied to the plain-

tiffs, the legitimate expectations of privacy which they

enjoy in their particular positions, the injuries which would

result from the extension of the law to them, and the gov-

ernmental purposes allegedly advanced by the law as ap-

plied to them. See supra at 8-13. That record provides this

Court with the opportunity to clarify in important respects

the nature and scope of the right to privacy on the basis

of a complete evidentiary record.

This Court has never heard argument on a case present-

ing a constitutional challenge to a financial disclosure law.

Prior to the articulation by this Court of the confidentiality

interest protected by the constitutional right to privacy in

Whalen and Nixon, the Court dismissed for lack of a sub-

stantial federal question three appeals from state court

decisions upholding financial disclosure laws. Montgomery

County v. Walsh, 336 A.2d 97 (Md. 1975), app. dism, 424

U.S. 901 (1976) ; Fritz v. Gorton, 527 P.2d 911 (Wash. 1974),

app. dism, 417 U.S. 902 (1974) ; Stein v. Howlett, 289 N.E.

2d 409 (Ill. 1972), app. dism. 412 U.S, 925 (1973). Those

cases involved facial challenges to statutes more narrowly

drawn than LL 48. Petitioners here have not challenged

LL 48 on its face and, accordingly, as the Court of Appeals

noted, have raised different, more difficult constitutional

issues:

2 The statutes at issue in Fritz v. Gorton, supra, and Mont.

gomery County v. Walsh, supra, clearly would not reach employees

in positions similar to those held by plaintiffs, In Frite the finan-

cial disclosure statute only reached elected officials and lobbyists.

417 P.2d at 921 n.2 and 927 n4. In Montgomery County the

statute only applied to elected officials and appointed officials in a

small numbe: of designated positions, such as Deputy Attorney

General and Deputy Comptroller, 336 A.2d at 100 0.1, It is not

possible from the text of the opinion in Stein v, Howlett, supra,

to determine whether the statute there at issue reached officials or

employees beyond those in the highest governmental offices.

“As the district court recognized, the statute challenged

in this case, and the issues raised, differ in important

respects from the statutes and issues considered in the

state court decisions cited above.” (App. I at 7a).

The issue presented in this case is whether every public

employee and his/her spouse may be required, consistently

with the Constitution, to reveal to the public at large all

personal financial information as a condition of employ-

ment. That is the effect of the decision of the Court of

Appeals which requires such disclosure by the plaintiffs—

public employees with respect to whom the District Court

has entered express findings that they perform no policy-

making functions and have no history of corruption or

significant opportunity for corruption in their jobs. In

light of the substantial number of financial disclosure laws,

the significant proportion of the population subject to re-

porting and disclosure requirements, and the undeveloped

state of the law in this area noted by the Court of Appeals,

the District Court and the law review commentators, we

believe that the issues presented in the instant petition

warrant review by this Court.

CONCLUSION

The petition for a writ of certiorari should be granted.

Dated: New York, New York

September 16, 1983

Respectfully submitted,

Murray A. Gorpon

Attorney for Petitioners

666 Third Avenue

New York, New York 10017

(212) 661-7900

Of Counsel:

Ricnarp M,. Berner.

Gorpon, SHecutmMan & Gorpoy, P.C,

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Nos. 1312, 1313, 1439—August Term, 1982

Argued: May 25, 1983 Decided: June 22, 1983

Docket Nos. 83-7010, 7012, 7080

JOHN J. BARRY, MARGUERITE V. BARRY and JAMES

GEBHARDT, on their own behalf and on behalf of all

others similarly situated,

Plaintiffs-A ppellees,

—against—

City oF NEw York; NEw YorK City BOARD OF ETHICS;

EDWARD I. KOCH, as Mayor of the City of New York;

and DaviD N. DINKINS, as City Clerk,

Defendants-Appellants.

a am

JAMES SLEVIN, MARY SLEVIN, BRIAN CLI) ‘TON, JOAN CLIN-

TON, Dr. STANLEY C. FELL, and Frank D’AmICcO, on

their own behalf and on behalf of all others similarly

situated,

Plaintiffs-A ppellees-

Cross-Appellants,

—against—

City oF NEw York; NEW YORK City BOARD OF ETHICS;

EDWARD I. KOCH, as Mayor of the City of New York;

FRANCIS T.P. PLIMPTON, as Chairman of the Board of

Ethics; POWELL PIERPOINT and BARBARA SCOTT PREIS-

KEL as members of the Board of Ethics; and Davip N.

DINKINS as City Clerk,

Defendants-A ppellants-

Cross-A ppellees.

Before:

FEINBERG, Chief Judge,

LUMBARD and WINTER, Circuit Judges.

City of New York and other defendants appeal from

decision of United States District Court for the Southern

District of New York, which struck down public inspec-

tion provisions of City financial disclosure law. Slevin

plaintiffs cross-appeal that portion of decision upholding

constitutionality of law’s filing requirements.

Affirmed in part and reversed in part.

—

Murray A. GorDdon, New York, NY (Gor-

don, Shechtman & Gordon, P.C., Rich-

ard M. Betheil, of Counsel), for

Plaintiffs-A ppellees-Cross-A ppellants.

JOHN P. SCHOFIELD, New York, NY (Schofield

& Dienst, New York, * %. Richard A.

Dienst, Karl S. Katcher, Eileen M. Scho-

field, of Counsel), for Plaintiffs-A ppel-

lees.

PAUL T. REPHEN, Assistant Corporation

Counsel of the City of New York (Fred-

erick A.O. Schwarz, Jr., Corporation

Counsel of the City of New York,

Leonard Koerner, Assistant Corporation

Counsel, of Counsel), for Defendants-

Appellants-Cross-A ppellees.

FEINBERG, Chief Judge:

Defendants-appellants, the City of New York and vari-

ous City officials, appeal from that portion of a decision

of the United States District Court for the Southern

District of New York, Abraham D. Sofaer, J., that struck

down the public inspection provisions of a financial

disclosure law enacted by the New York City Council.

This is a consolidated appeal: the named plaintiffs in

Slevin are employees of the New York City Fire Depart-

ment and their spouses suing for themselves and others

similarly situated; the similar suit in Barry is brought by

employees of the Police Department and their spouses.

The Slevin plaintiffs cross-appeal from that portion of

the district court decision that upheld the constitutionality

of the law insofar as it requires plaintiffs to file annual

financial reports with the City Clerk. The opinion of the

district court is reported at 551 F. Supp. 917 (1982). We

affirm the district court’s decision in part, and reverse in

part.

I. Background

In 1975, after several years of study, the New York City

Council enacted Local Law 1, New York City Admin.

Code § 1106-5.0. As originally passed, Local Law |

required a variety of City officials, candidates for City

office, and all City employees whose salary was $25,000

or greater, to file annual reports disclosing certain finan-

cial information. The law made the reports available for

public inspection. Local Law | was upheld by the New

York State Supreme Court in Hunter v. City of New

York, 88 Misc. 2d 562 (1976). On appeal, however, the

Appellate Division, First Department, invalidated the

law. Hunter v. City of New York, 396 N.Y.S.2d 186 (Ist

Dept. 1977), aff'd, 44 N.Y.2d 708 (1978). The Aunter

court recognized that the purpose of the law, to deter

corruption and conflicts of interest among City employ-

ees, was valid. Nonetheless, the court determined that

Local Law 1 was invalid insofar as it contained no

mechanism to prevent automatic public disclosure of all

information provided. Hunter v. City of New York,

supra, 396 N.Y.S.2d at 189-90.

In response, the City Council passed Locai Law 48

(hereafter LL 48), which took effect in July 1979. LL 48

amends Local Law | to permit covered employees to

assert privacy claims with respect to any of the informa-

tion the statute requires. As amended, the City’s financial

disclosure law requires annual financial reports from

most elected and appointed officials, candidates for City

office, and all civil service employees with an annual

salary equal to or greater than $30,000.' Covered employ-

! LL 48 requires the following individuals to file:

(i) the Mayor, City Council President, City Councilman, Bor-

ough Presidents, and ee. and candidates for such posi-

tions (Sec. 1106-5.0a, subd. 1,2); and

ees and their spouses must provide extensive information

about their personal finances, including, among other

items, the identity of professional organizations from

which the employee or a spouse derives $1,000 or more in

income during the preceding year; the source of capital

gains of $1,000 or more, other than from the sale of a

residence; the source of gifts or honoraria of $500 or

more; indebtedness in excess of $500 that is outstanding

for 90 days or more; and the nature of investments worth

$20,000 or more.* Intentional violations of these report-

ing requirements are punishable by imprisonment not to

exceed one year or a fine not to exceed $1,000, or both.

The reports must be filed with the City Clerk, and may

be inspected by a member of the public on request.

Unlike its predecessor, however, LL 48 explicitly permits

covered individuals to request that any item or items in

their reports be withheld from public inspection on the

ground that inspection “would constitute an unwarranted

invasion of his or her privacy.” In general, a privacy claim

may be made at any time. When a request for access is

pending, however, a privacy claim cannot be asserted for

the first time, although a prior privacy claim can be

supplemented on notice of a request for access.

When an inspection request is made and a privacy

claim has been asserted, LL 48 requires the public mem-

bers of the City’s Board of Ethics’ to consider the

(ii) [eJach agency head, deputy agency head, assistant agency

head, member of any board or commission other than a member of

a board or commission who serves without compensation and each

city employee who is a member of the managerial pay plan or whose

salary is thirty thousand dollars a year or more. . . . (Sec. 1106-

5.0a, subd. 3).

2 The section of the statute detailing the information required is

reprinted in full as an appendix to this opinion.

3 The Board of Ethics consists of “public members of the board of

ethics appointed pursuant to section twenty-six hundred of the char-

Inspectors, Lieutenants, Police Surgeons, and their

spouses’ filed the companion action, Barry v. City of

New York, No. 79 Civ. 4627 (S.D.N.Y.), against most of

the same defendants, seeking to enjoin the application of

LL 48 to the plaintiff class. The plaintiff officers in both

cases are “uniformed city employees, occupying competi-

tive civil service positions, who earn in excess of $30,000

annually.” Slevin v. City of New York, supra, $51 F.

Supp. at 923. The district court issued a preliminary

injunction enjoining the application of LL 48 to the

Slevin plaintiffs, and later expanded the injunction

against defendants to cover the Barry plaintiffs. The cases

were then consolidated and tried on the merits.

In a wide-ranging attack on the statute, plaintiffs

claimed below that as applied to them, LL 48 violated

their constitutional rights under the First, Fourth, Fifth,

Ninth and Fourteenth Amendments. In a comprehensive

opinion, Judge Sofaer sustained the constitutionality of

ihe statute’s filing requirements, but struck down the

public inspection provisions as an unwarranted invasion

of plaintiffs’ privacy.

On appeal, the City challenges that portion of the lower

court decision invalidating LL 48’s public inspection

provisions. The S/evin plaintiffs contend in their cross-ap-

peal that the statute should be struck down in its entirety;

$ According to the record before us: At the time of the hearing in this

case, the Barry plaintiffs included 22 deputy chiefs, 39 inspectors, 81

deputy inspectors, 250 captains, 21 police surgeons and some lieuten-

ants. Captain is the highest rank that can be attained through civil

service examination. Captains normally command a precinct of 100 to

400 men. Lieutenants are a rank below captain, but the plaintiff

lieutenants are those “designated as Supervisor of Detective Squad

and/or Special Assignment,” and apparently have a salary and respon-

sibilities commensurate with those of police captains. Police surgeons

treat police officers and determine their fitness for duty. All ranks

above captain are appointed by the Police Commissioner, and involve

significant supervisory responsibilities.

the Barry plaintiffs argue only that the district court was

correct in striking down the law’s public disclosure provi-

sions. For simplicity, we deal first with the arguments

raised by the City in its appeal, and by the Slevin

plaintiffs in their cross-appeal.

[I]. The City Appeal and the Slevin Cross-Appeal

We note as an initial matter that the Supreme Court has

dismissed for lack of a substantial federal question three

appeals from state court decisions upholding financial

disclosure laws. Montgomery County v. Walsh, 336 A.2d

97 (Md. 1975), appeal dismissed, 424 U.S. 901 (1976):

Fritz v. Gorton, 527 P2d 911 (Wash. 1974) (in banc),

appeal dismissed, 417 U.S. 902 (1974); Stein v. Howlett,

289 N.E.2d 409 (Ill. 1972), appeal dismissed, 412 U.S.

925 (1973). These dismissals are dispositions on the

merits, and are binding on “the precise issues presented

and necessarily decided by those actions.” Mandel v.

Bradley, 432 U.S. 173, 176 (1977) (per curiam). But

although these dismissals “caution us against finding [LL

48] unconstitutional,” Plante v. Gonzalez, 575 F.2d 1119,

1126 (Sth Cir. 1978), cert. denied, 439 U.S. 1129 (1979),

they cannot, as the district court put it, “fairly be said to

preclude all of plaintiffs’ challenges.” 551 F. Supp. at 924.

As the district court recognized, the statute challenged in

this case, and the issues raised, differ in important re-

spects from the statutes and issues considered in the state

court decisions cited above. Id. Moreover, all three dis-

missals occurred prior to two Supreme Court decisions

that recognized a constitutional interest “in avoiding

disclosure of personal matters.” Whalen v. Roe, 429 U.S.

$89, 599 (1977); Nixon v. Administrator of General

Services, 433 U.S. 425, 457 (1977). Accordingly, this court

must “undertake an independent examination of the

merits.” Mandel v. Bradley, supra, 432 U.S. at 177.

A. Right to Privacy

The central issue in this case is whether LL 48 violates

plaintiffs’ right to privacy. The exact nature and scope of *

the right to privacy has never been fully defined. In

Whalen v. Roe, however, the Supreme Court summarized

the relevant case law as follows:

The cases sometimes characterized as protecting

“privacy” have in fact involved at least two different

kinds of interests. One is the individual interest in

avoiding disclosure of personal matters, and another

is the interest in independence in making certain

kinds of important decisions.

429 U.S. at 598-600 (footnotes omitted). These two in-

terests have been characterized by the Fifth Circuit as

interests in “confidentiality” and in “autonomy”, respec-

tively. Plante v. Gonzalez, supra, 575 F.2d at 1128.

The autonomy branch of privacy protects persona!

choice in “matters relating to marriage, procreation,

contraception, family relationships, and child rearing and

education.” Paul v. Davis, 424 U.S. 693, 713 (1976). It is

unclear whether financial disclosure laws significantly

implicate any interests protected by the autonomy strand

of the right to privacy. The Fifth Circuit has concluded

that the autonomy interest does not cover “financial

privacy.” Plante v. Gonzalez, supra, 575 F.2d at 1132; see

also O’Brien v. DiGrazia, 544 F.2d 543, 545 (Ist Cir.

1976), cert. denied, 431 U.S. 914 (1977). The Fifth Circuit

reasoned that financial regulations, such as tax laws, are

common in this society, and that “[t]he indirect effects

caused by financial disclosure pale by comparison” with

the effects of other regulations. Plante v. Gonzalez,

supra, 575 F.2d at 1131. The court concluded that al-

though “financial disclosure may affect a family. . . any

influence does not rise to the level of a constitutional

problem.” Id. The district court in this case, however,

after a careful analysis, decided that financial disclosure

laws may sometimes “substantially, albeit indirectly, af-

fect recognized autonomy interests.” 551 F. Supp. at 928.

As will be seen below, however, it is not necessary for us

to decide the general applicability of the autonomy

branch of privacy to financial disclosure laws.

The confidentiality branch of the right to privacy was

at issue in Whalen v. Roe, supra. In that case, the

Supreme Court upheld a New York statute authorizing

the state to record the names and addresses of patients

who received prescriptions for certain drugs, but stated

that individuals have a protectible “interest in avoiding

disclosure of personal matters.” 429 U.S. at 599. The

existence of that interest was reaffirmed in Nixon v.

Administrator of General Services, supra, 433 U.S. at

457, a case in which the Supreme Court upheld an Act

providing for the screening of former President Nixon’s

presidential materials to segregate official documents for

public preservation from personal documents for return

to Mr. Nixon.

The nature and extent of the interest recognized in

Whalen and Nixon, and the appropriate standard of

review for alleged infringements of that interest, are

unclear. See J.P. v. DeSanti, 653 F.2d 1080, 1087-91 (6th

Cir. 1981) (questioning whether Whalen and Roe created

any general right to non-disclosure of personal informa-

tion against which infringing government actions have to

be balanced). Most courts considering the question, how-

ever, appear to agree that privacy of personal matters is a

10a

protected interest, see, e.g., Plante v. Gonzalez, supra,

575 F.2d at 1135; United States v. Westinghouse Electric

Corp., 638 F.2d 570, 577-78 (3d Cir. 1980); Schachter v.

Whalen, 581 F.2d 35 (2d Cir. 1978), and that some form

of intermediate scrutiny or balancing approach is appro-

priate as a standard of review, see Slevin v. City of New

York, supra, 55! F. Supp. at 930 (listing cases). The

Supreme Court itself appeared to use a balancing test in

Nixon v. Administrator of General Services, 433 U.S.

425, 458 (1977). Moreover, an intermediate standard of

review seems in keeping both with the Supreme Court’s

reluctance to recognize new fundamental interests re-

quiring a high degree of scrutiny for alleged infringe-

ments, and the Court’s recognition that some form of

scrutiny beyond rational relation is necessary to safeguard

the confidentiality interest. See Plante v. Gonzalez, su-

pra, 575 F.2d at 1134. With these principles in mind, we

turn to plaintiffs’ contentions that the filing and public

inspection provisions of LL 48 violate both the confiden-

tiality and the autonomy strands of the right to privacy.

1. The Filing Requirement

The district court reached the following assessment

with respect to LL 48’s requirement that each covered

individual file a financial report with the City Clerk:

The evidence established that autonomy and confi-

dentiality interests will be somewhat affected by the

filing requirement, but that governmental interests in.

deterring and detecting conflicts of interest and

venality will be furthered sufficiently to justify that

requirement.

Slevin v. City of New York, supra, 551 F. Supp. at 931.

After reviewing the record, we agree. Plaintiffs contend

lla

that LL 48 impairs their “constitutionally protected

privacy rights in the spousal relationship” because, as the

district court recognized, “[fliling will necessarily com-

promise a spouse’s desire to keep secret his or her fi-

nances from the filing employee. . . .” 551 F. Supp. at

931. The district court also recognized, however, that

filing of information regarding spouses was necessary to

make LL 48 effective. And the district court went on to

conclude that “no evidence suggested that [the filing

requirement] would significantly affect the decisions

whether to marry, whether and when to procreate, or

other family decisions heretofore held protected by the

autonomy branch.” Id. at 932.

Plaintiffs concede that this conclusion would be valid if

LL 48 furthered a substantial government purpose. We

think the statute as a whole plainly furthers a substantial,

possibly even a compelling, state interest. The purpose of

the statute is to deter corruption and conflicts of interest

among City officers and employees, and to enhance

public confidence in the integrity of its government.

Hunter v. City of New York, supra, 396 N.Y.S.2d at 187.

In addition, as the district court noted, “[flinancial dis-

closure laws also derive considerable strength from the

benefits widely felt to be derived from openness and from

an informed public.” 551 F. Supp. at 921.° The Supreme

Court has recognized a compelling state interest in the

maintenance of an honest civil service, see Lefkowitz v.

Cunningham, 431 U.S. 801, 808 (1977), and that “[a]n

informed public is essential to the nation’s success, and a

6 The district court went on to conclude that in this case the public

right to know was outweighed by plaintiffs’ privacy interests, since

plaintiffs do not occupy policymaking positions. As indicated below,

we do not think that on this record the distinction between policymak-

ing positions and nonpolicymaking positions is conclusive.

l2a

fundamental objective of the first amendment.” Slevin v.

City of New York, supra, 551 F. Supp. at 921 (citing Red

Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969);

New York Times Co. v. Sullivan, 376 U.S. 254, 269

(1964)). Whatever one may think of the intrusiveness of

financial disclosure laws, they are widespread, see Slevin

v. City of New York, supra, 551 F. Supp. at 919 n.1, and

reflect the not unreasonable judgment of many legisla-

tures that disclosure will help reveal and deter corruption

and conflicts of interest.

Plaintiffs argue, however, that the filing requirement is

unnecessary because all the information obtained through

LL 48 is already available to the City under existing

procedures, where necessary to further an authorized

investigation. We agree with the district court, however,

that “(t]he City is not required to rely. . . on departmen-

tal mechanisms io achieve its aims; it is entitled to opt for

a centralized system of monitoring its employees’ fi-

nances, even if the new procedure is less comprehensive

than some departmental procedures.” 551 F. Supp. at

933.

Plaintiffs in Slevin, which primarily involves officers of

the Fire Department, also claim that LL 48 is unnecessary

because there is no history of or opportunity for corrup-

tion among Fire Department Chief or Medical officers.

The City contends that Fire Department employees face a

variety of opportunities for corruption or conflicts of

interest; e.g., a Fire Department Chief or his spouse

might hold real estate investments in an area of his

command subject to inspections or enforcement proceed-

ings, or a medical officer might receive payments from a

firefighter who desires to remain on paid sick leave.

Plaintiffs succeeded in discrediting much of the City’s

evidence on this issue, and the district court determined

i3@

that “opportunities for corruption” among the Fire

Department plaintiffs were “limited”. 551 F. Supp. at

932-33. The court went on to find, however, that

“[c]orruption and more subtle conflicts of interest are

possible in each group of plaintiff employees.” Id. at 933.

We agree with this assessment. In our view, the City

Council could reasonably conclude that LL 48 would help

deter corruption and conflicts of interest in the Fire

Department, despite its “virtually corruption-free his-

tory.” 551 F. Supp. at 932 n.11.

Plaintiffs also challenge the establishment of a $30,000

threshhold disclosure level as both underinclusive and

overinclusive. We consider that argument at some length

below, in the context of our discussion of the public

inspection provision of LL 48.

Plaintiffs’ final privacy argument with respect to the

filing requirements is that LL 48 lacks adequate security

precautions to prevent inadvertent disclosure of financial

reports. Cf. Whalen v. Roe, supra, 429 U.S. at 605-06

(discussing importance of security measures); United

States v. Westinghouse Electric Corp., supra, 638 F.2d at

580. Plaintiffs do not point to any instances in which

material covered by a privacy claim has been inadver-

tently released since the statute was enacted in 1979. We

would expect that the City will treat the LL 48 reports

“with the same degree of confidentiality now accorded

private information in the City’s personnel records,”

Slevin v. Citv of New York, 551 F. Supp. at 949 n.21, and

that it will take adequate precautions to prevent inadver-

tent disclosure of material protected by a privacy claim.

On this record, we cannot say that the statute must be

invalidated for lack of adequate security measures.

l4a

2. The Public Inspection Requirement

More difficult constitutional questions are raised by the

provision of LL 48 that permits public inspection of

plaintiffs’ annual financial reports. The adverse effect of

public disclosure on privacy interests is considerably

greater than the effect of disclosure to the City; at the

same time, the City’s interest in public inspection is

weaker in significant respects than its interest in obtaining

financial information for internal review. Nonetheless, we

think the statute, as strengthened by the privacy claim

procedures, withstands constitutional scrutiny even with

respect to the broad public inspection requirement.

As the district court noted, “[t]he degree of intrusion

stemming from public exposure of the details of a per-

son’s life is exponentially greater than disclosure to gov-

ernment officials.” 551 F. Supp. at 934 (citations

omitted). Plaintiffs contend that public disclosure will

impair their autonomy interests by forcing them to rede-

fine their marital and family relationships. The district

court founc that “public filings will reveal in some

instances facts that could damage a variety of associa-

tions and relationships.” 551 F. Supp. at 935. In addition,

the district court found that “[p]ublic disclosure will

directly and materially affect the confidentiality interests

of filers and their spouses,” id., citing a variety of

examples, such as the possibility of an embarrassing

revelation “that one lives above or below one’s means.”

Id.

We recognize that public disclosure of financial infor-

mation may be personally embarrassing and highly intru-

sive. Unlike the district court, however, we think that the

statute’s privacy mechanism adequately protects plain-

tiffs’ constitutional privacy interests.

l5a

An employee filing a financial report may make a claim

of privacy with respect to any item of information sought

by the City by explaining in writing the reasons for the

request. Privacy claims are not adjudicated by the Board

of Ethics unless a request for public inspection is made;

while this may leave the filer in a state of uncertainty as to

the eventual outcome ot his privacy claim should an

inspection request ever be made, we do not think that by

itself is of constitutional significance. If a privacy claim

has been made and someone requests access to the claim-

ant’s report, the matter is referred to the Board of Ethics

for evaluation. As indicated above, the Board must con-

sider three factors in evaluating a privacy claim: whether

the item is highly personal; whether it relates to the

claimant’s duties; and whether the item involves a possi-

ble conflict of interest.

We do not think that the right to privacy protects

public employees from the release of financial informa-

tion that is related to their employment or indicative of a

possible conflict of interest. Nor do we think the release

of information that is not “highly personal” rises to the

level of a constitutional violation.

Moreover, the record does not support plaintiffs’ con-

tentions that the privacy mechanism is inadequate. Ac-

cording to an affidavit of one of the members of the

Board of Ethics, twenty-six privacy claims have come

before the Board. Sixteen were granted, six were with-

drawn, and one was “otherwise disposed of.” Only three

privacy claims were denied, apparently because insuffi-

cient information was provided in support of the claims.

When an inspection request is made, the filer is notified

of the identity of the person seeking access. According to

the City, the filer is then afforded the opportunity to

present additional material in support of his privacy

l6a

claim. If the privacy request is denied, the City informs us

that the filer has ten days in which to seek reconsideration

by the Board or judicial review. In light of the actual

experience with the privacy procedure discussed above,

we think this process affords plaintiffs an adequate op-

portunity to contest the disclosure of any information

whose release might violate their right to privacy.

The S/evin plaintiffs argue that the affidavits relied on

by the City to support its contentions with respect to the

actual operation of the privacy claim mechanism are not

properly before this court. According to plaintiffs, the

affidavits, which were submitted to the district court after

trial on a motion for a new trial, are inadmissible because

they consist primarily of matter alleged on information

and belief, and because plaintiffs did not have an oppor-

tunity to conduct discovery, cross-examine the affiants, or

introduce rebuttal evidence. Ordinarily, we might be in-

clined to remand the case to the district court to clarify

this issue. But we see no need for that procedure here.

The contested affidavits were before the district court

on defendants’ motion for a new trial, which was denied

even in the absence of any rebuttal evidence from the

plaintiffs. Moreover, plaintiffs do not contest the ac-

curacy of the information regarding the actual disposition

of privacy claims; indeed, they rely on the same facts to

support their claim that the privacy procedures are inade-

quate.

Plaintiffs characterize defendants’ statements that

filers may supplement their privacy claims when a request

for access is made, and that filers are given adequate time

to seek judicial review when a privacy claim has been

denied as “a hitherto unknown construction of the stat-

ute,” but do not actually contest the accuracy of these

assertions. We note that Judge Sofaer relied on the

17a

affidavits in finding that in practice filers are afforded a

“meaningful opportunity for judicial review.” The statute

itself explicitly authorizes the Board of Ethics to “estab-

lish procedures for the consideration” of privacy re-

quests. Accordingly, it is clearly within the Board’s power

to afford filers an opportunity to supplement existing

privacy claims when a request for access is made, and to

provide an adequate opportunity to seek judicial review

when a claim is denied. We therefore rely on the City’s

assurances that the privacy mechanism so operates in

practice.

The City further informs us that a filing employee may

specify that he does not want information released to

particular persons or groups, and that the Board of Ethics

may deny an inspection request if the Board “has reason

to believe that the person or organization making the

request is not acting in good faith or is attempting to

obtain the information for some inappropriate or im-

proper purpose.” Again, plaintiffs claim that this is a

novel and possibly erroneous construction of the statute,

and that there is no indication in the record that the

Board of Ethics operates in this fashion. Nothing in the

statute requires the Board of Ethics to consider the

identity of the person seeking access, but nothing appears

to bar the Board from doing so either. Whether or not the

Board follows the sensible practice of considering the

identity of the person requesting access, however, we

think the privacy procedure is adequate to protect plain-

tiffs’ rights. We note by way of comparison that courts

have upheld financial disclosure laws that hit much closer

to home and do not have any similarly broad privacy

mechanism. See, e.g., Duplantier v. United States, 606

F.2d 654 (Sth Cir. 1979), cert. denied, 449 U.S. 1076

(1981) (upholding Ethics in Government Act). However,

18a

in view of the apparent confusion as to the exact opera-

tion of the privacy mechanism, the City might be well

advised to explain it more fuily to the affected City

personnel.

In any event, we think the City’s interest in public

disclosure outweighs the possible infringement of plain-

tiffs’ privacy interests. Plaintiffs argue that the City’s

efforts to deter corruption and conflicts of interest would

be as well served by disclosure to the City only as by

public disclosure. We disagree.

In the City’s view, public disclosure will significantly

bolster its efforts to deter official malfeasance. The City

cites the example of the 1972 Knapp Commission investi-

gation, which uncovered extensive corruption in the Po-

lice Department, and determined that despite charges of

corruption, no serious official investigation was made

until the press publicized the allegations. According to the

City, public disclosure of financial reports will spur City

agencies and officials to be aggressive in their efforts to

police corruption, if only for fear that evidence of mis-

conduct might be found in a financial report and publi-

cized by the press, a public interest group, or a vigilant

citizen. In addition, the City contends that public disclo-

sure will enhance public confidence in the integrity of

City government if only because the reports will demon-

strate that most City officials and employees are honest

and not subject to conflicts of interest in the performance

of their duties.

The district court was not persuaded by the City’s

arguments. But as the Supreme Court noted in Whalen v.

Roe, supra, 429 U.S. at 597 (footnotes omitted);

State legislation which has some effect on individual

liberty or privacy may not be held unconstitutional

simply because a court finds it unnecessary, in whole

19a

Or in part. For we have frequently recognized that

individual States have broad latitude in experiment-

ing with possible solutions to problems of vital local

concern.

In this case, we cannot say that it was unreasonable for

the City Council to conclude that public disclosure would

materially advance the City’s attempt to prevent corrup-

tion and conflicts of interest.

As noted above, plaintiffs also challenge the $30,000

threshold disclosure level. Plaintiffs contend that unlike

the plaintiffs in Plante v. Gonzalez, supra, 575 F.2d 1119,

or in Duplantier v. United States, supra, 606 F.2d 654,

they are not all public figures, nor do they all occupy

policymaking positions “with substantial discretion over

the disposition of valuable goods.” They conclude that

the pro-disclosure balance reached in Plante and Duplan-

tier is therefore inappropriate here. But the fact that

many of the plaintiffs are not public figures or policy-

making officials does not immunize them from all possi-

bilities of corruption or conflict of interest. Indeed, as

noted earlier, the district court in holding the filing

requirement constitutional found that corruption and

conflicts of interest are possible in each group of plain-

tiffs. Given the magnitude of the City’s interests, we

think the constitutional balance still tips in favor of

permitting public disclosure.

The district court decided that the potential for corrup-

tion does not justify “across-the-board, public disclosure

of finances.” 551 F. Supp. at 940. In addition, the district

judge found that the $30,000 level was both overinclusive

and underinclusive. Id. at 940-44.

We recognize that full disclosure is burdensome, and

that some City employees earning less than $30,000 might

have opportunities for corruption, while others earning

20a

more than $30,000 might not. Moreover, we agree with

the district court that the statute would be better if it

specified the “particular job categories” that should be

subject to disclosure, and defendants themselves concede

that “it may now be time” to consider raising the

threshhold for reporting “to take into account the effect

of inflation since 1979.” Nonetheless, we cannot say that

the statute must therefore fall. Ordinarily, legislative clas-

sifications of this sort must stand unless “very wide of

any reasonable mark.” Buckley v. Valeo, 424 U.S. 1, 83

n.111 (1976) (per curiam). And the City argues that there

are toO many positions involved to permit classification

by particular job categories, a determination that it is

difficult for a court to characterize as erroneous. In any

event, however, the burden imposed by an imprecise

classification, and by the broad nature of the required

disclosure, is mitigated by the statute’s privacy mecha-

nism, which permits covered employees to challenge the

proposed release of irrelevant “highly personal” informa-

tion. Accordingly, we cannot say that the law is unconsti-

tutionally overbroad or that it violates the constitutional

right to privacy.

B. Additional Constitutional Claims

Plaintiffs also contend that LL 48 violates their rights

under the Fourth and First Amendments. We agree with

the district judge that there is little merit to these argu-

ments.

1. Fourth Amendment

Plaintiffs contend that they have a reasonable expecta-

tion of privacy with respect to the disclosure of financial

information, and that therefore the Fourth Amendment

shields them from compelled disclosure. It is doubtful,

cia

however, whether the Fourth Amendment applies in this

context. See Whalen v. Roe, supra, 429 U.S. at 604 n.32.

Moreover, as the district court noted, plaintiffs plainly

have no reasonable expectation that the information

sought by LL 48 can be withheld from their employers.

551 F. Supp. at 925. In addition, even if plaintiffs have a

reasonable expectation of privacy with respect to public

disclosure, the Fourth Amendment prohibits only unrea-

sonable inquiries. Cf., e.g., California Bankers Associa-

tion v. Shultz, 416 U.S. 21, 59-70 (1974); Camara v.

Municipal Court, 387 U.S. 523, 536-39 (1967). As stated

above, we cannot say that the demands of LL 48, as

limited by its privacy mechanism, are unreasonable.

2. First Amemdment

Plaintiffs also contend that LL 48 impairs their First

Amendment rights of freedom of association and speech,

because it will force disclosure of organizational activities

and affiliations. The district court found, however, that

plaintiffs failed to demonstrate that LL 48 would “signifi-

cantly inhibit the exercise of their first amendment

rights.” 551 F. Supp. at 927. We agree with the district

court that on this record the threat that LL 48 will

significantly interfere with plaintiffs’ First Amendment

rights is “too remote”. See id.; Plante v. Gonzalez, supra,

$75 F.2d at 1132-33.

Il. The Barry Appeal

The Barry plaintiffs challenge only the public inspec-

tion provisions of LL 48. For the most part, their argu-

ments parallel those of the S/evin plaintiffs, and the Barry

plaintiffs incorporate by reference the arguments pre-

sented by the S/evin plaintiffs. The principal. difference

22a

between the two groups of plaintiffs, for purposes of this

appeal, is the different opportunities for corruption and

conflicts of interest available to each group. Unlike the

Fire Department, the Police Department “has a history of

pervasive corruption.” Slevin v. City of New York, supra,

551 F. Supp. at 933 n.12. Moreover, the district court

found that “corruption in the Department ... has

markedly diminished, but it persists.” Id. Thus, the City’s

justification for seeking financial disclosure from the

Barry plaintiffs and for permitting public inspection of

their reports is stronger than in the case of the S/evin

plaintiffs. Accordingly, our decision of the S/evin appeal

controls the disposition of the Barry appeal.

Conclusion

After reviewing the record and considering all of plain-

tiffs’ arguments, we conclude for the reasons stated

above that LL 48 is constitutional in its entirety as applied

to the plaintiffs. Accordingly, we affirm that portion of

the district court’s opinion relating to the filing require-

ments, and reverse that portion of the opinion dealing

with the public inspection requirements.

APPENDIX

b. The report shall contain the following information:

1. List the name, address and type of practice of

any professional organization in which the person

reporting or his spouse, is an officer, director, part-

ner, proprietor or emplovee, or serves in any advisory

capacity, from which income of one thousand dollars

Or more was derived during the preceding calendar

year.

2. List the source of each of the following items

received or accrued during the preceding calendar

year by the person reporting or his spouse.

(a) any income for services rendered, other

than any source of income otherwise disclosed

pursuant to paragraph one, of one thousand

dollars or more;

(b) any capital gain from a single source of

one thousand dollars or more other than from

the sale of a residence occupied by the person

reporting;

thousand dollars or more in each instance;

(d) honoraria from a single source in the

aggregate amount of five hundred dollars or

more;

(e) any gift in the aggregate amount or value

of five hundred dollars or more from any single

source received during the preceding year, except

as otherwise provided under the election law

covering campaign contributions.

3. List each creditor to whom the person reporting

or his spouse was indebted for a-period of ninety

244

consecutive days or more during the preceding calen-

dar year in an amount of five thousand dollars or

more.

4. List the identity of each investment and each

parcel of real property in which a value of twenty

thousand dollars or more was held by the person

reporting or his spouse at any time during the preced-

ing calendar year, based on the cost thereof or when

acquired by means other than purchase, an estimate

of the value at the time of receipt.

5. List the identity of each trust or other fiduciary

relation in which the person reporting or his spouse

held a beneficial interest having a value of twenty

thousand dollars or more during the preceding calen-

dar year.

6. (a) Indicate if the total amount of income

received from each and every source listed (1) pur-

suant to the provisions of paragraph one and sub-

paragraphs a, b and c of paragraph two of this

section is at least one thousand dollars but less than

five thousand dollars, at least five thousand dollars

but less than twenty-five thousand dollars; at least

twnety-five thousand dollars but less than one hun-

dred thousand dollars or one hundred thousand

dollars or more; and (2) pursuant to the provisions of

subparagraphs d and e of paragraph two of this

section is less than one thousand dollars; at least one

thousand dollars but less than five thousand dollars;

at least five thousand dollars but less than twenty-

five thousand dollars; at least twenty-five thousand

dollars but less than one hundred thousand dollars or

one hundred thousand dollars or more.

25a

(b) Indicate if the total amount of indebtedness

owed each creditor listed pursuant to paragraph

three of this section was at least five thousand dollars

but less than twenty-five thousand dollars; at least

twenty-five thousand dollars but less than one hun-

dred thousand dollars; at least one hundred thousand

dollars but less than five hundred thousand dollars

or over five hundred thousand dollars.

and real property interest identified pursuant to

paragraph four of this section and each beneficial

interest identified pursuant to paragraph five of this

section was during the reporting period, at least

twenty thousand dollars but less than one hundred

thousand dollars; at least one hundred thousand

dollars but less than five hundred thousand dollars

or five hundred thousand dollars or more.

}

eae ~ . eg ¢

et he oA ries ao .:

APPENDIX II

26a

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF NEW YORK

79 Civ. 4524 (ADS)

79 Civ. 4627 (ADS)

JAMES SLEVIN, MARY SLEVIN, BRIAN CLINTON,

JOAN CLINTON, DR. STANLEY C. FELL, and

FRANK D'AMICO, on their own behalf and on

behalf of all others similarly situated,

-against-

CITY OF NEW YORK; NEW YORK CITY BOARD OF

ETHICS; EDWARD L. KOCH, as Mayor of the

City of New York; and DAVID M. DINKINS

as City Clerk,

Defendants.

JOHN J. BARRY, MARGUERITE V. BARRY and

JAMES GREBHARDT, on their own behalf and

on behalf of all others similarly situated,

Plaintiffs,

“-against-

CITY OF NEW YORK; NEW YORK CITY BOARD OF

ETHICS; EDWARD I. KOCH, as Mayor of the

City of New York; and DAVID M. DINKINS,

as City Clerk,

Defendants.

OPINION AND ORDER

27a

APPEARANCE 8:

GORDON & SHECHTMAN, P. C.

666 Third Avenue

New York, New York 10017

Of Counsel: Murray A. Gordon, Esq.

Richard M. Betheil, Esq.

Attorneys for Slevin Plaintiffs

Schofield & DIENST

299 Broadway

New York, New York 10007

Of Counsel: John P. Schofield, Esq.

Attorneys for Barry Plaintiffs

FREDERICK A.O. SCHWARZ, JR.

Corporation Counsel

100 Church Street

New York, New York 10007

Of Counsel: Deborah Rothman, Esq.

Denise Thomas, Esq.

Attorneys for Defendants

NEW YORK CIVIL LIBERTIES UNION

84 Fifth Avenue

New York, New York 10001

Of Counsel: Arthur Eisenberg, Esq.

mt , .

Amicus Curiae

28a

ABRAHAM D. SOFAER, D.J.:

These class actions present a challenge

to one of the scores of financial disclosure

laws adopted by legislatures at all levels

of American government since the political

scandals of the Nixon Administration.

Plaintiffs represent uniformed members of

the New York City Fire and Police Depart-

ments who earn over $30,000 per year, and

their spouses. They challenge the con-

stitutionality of Local Law 48 of 1979,

N.¥.C. Admin. Code § 1106-5.0 (hereinafter

"LL 48"), a financial disclosure law en-

acted by the New York City Council and ap-

proved by the Mayor. Plaintiffs claim that

LL 48, as it applies to them, violates their

constitutional rights under the first,

fourth, fifth, ninth, and fourteenth amend-

ments to the United States Constitution.

Financial disclosure laws were recog-

nized long before the "Watergate" scandal

as a potentially useful device for discover-

29a

ing and deterring conflicts of interest.

Post-Watergate developments, however, have

dramatically expanded the number, scope,

and impact of disclosure laws. Few juris-

dictions had adopted disclosure laws prior

to 1970; those that existed in general ap-

plied to officials holding. policymaking

positions, and required disclosure, limited

to the government involved or to other in-

terested persons, of financial facts rele-

vant to the work of the reporting officer.

Since then, hundreds of such laws have been

adopted at all levels of government; they

frequently apply to large groups of em-

ployees, including civil service personnel

having little or no important policymaking

power and they require disclosure to all

members of the public, irrespective of any

need to know or purpose in knowing, of all

the financial facts concerning the report-

ing employee or official as well as those

concerning all members of the reporting

30a

person's family.>

The significance of these developments

has been heightened by the large number of

Americans now employed by government.

Furthermore, since many financial disclo-

sure laws affect not only the privacy of

government employees but also the privacy

of their spouses and other household mem-

bers, the number of affected individuals

is far greater than the number of employees

actually covered. Financial disclosure

laws thereby potentially invade the privacy

of millions of Anericans as individuals and

in their marital and family relations.“

Legislatively mandated financial dis-

closure laws do not normally violate the

first, fourth, or fifth amendments to the

Constitution. If any constitutional prin-

ciple provides protection against disclosure

of private, financial information it is the

concept of privacy. Justice Harlan, in his

illuminating dissent in Poe v. Ullman, 367

U.S. 497, 540 (1961), recognized that the

3la

Constitution is "the basic charter of our

society, setting out in spare but meaningful

terms the principles of government." The

Constitution must protect "legitimate ex-

pectations of privacy," he wrote, not only

against physical or electronic invasions but

against "all unreasonable intrusion of what-

ever character." Id. at 550. See also

Olmstead v. United States, 277 U.S. 438, 478

(1928) (Brandeis, J., dissenting). More

recently, the Supreme Court has indicated

that the interest in avoiding disclosure of

personal information is constitutionally

protected. Nixon v. Administrator of General

Services, 433 U.S. 425 (1977); Whalen v.

Roe, 429 U.S. 589 (1977). Yet, while wir-

tually every court that has considered

financial disclosure laws has stated that

the Constitution shields individual and

family privacy as to financial matters, few

courts have placed constitutional limits of

any sort on legislatures requiring financial

32a

disclosures and providing that they be

available to the public. °

Powerful reasons explain why courts

have properly been restrained in reviewing

disclosure laws on privacy grounds. The

right of privacy, as protected by common

law and the Constitution, relates to pri-

vate revelations or direct public regulation

of intimate activity, rather than to dis-

closures by government of information ob-

tained and published for some public pur-

pose.* Financial disclosure laws are anal-

ogous to long accepted, lawful techniques

for obtaining information reasonably neces-

sary for governmental objectives. Further-

more, the objectives sought by financial

disclosure laws are in principle unassailable

and theoretically justify a broad scope of

inquiry. Honest government is so patently a

worthy objective, and the capacity for

venality in human behavior is so profound

and ingenious, that virtually any disclosure

33a

law however intrusive might be rationally

justifiable. Financial disclosure laws also

derive considerable strength from the bene-

fits widely felt to be derived from openness

and from an informed public. Justice Bran-

deis, an eloquent advocate of privacy, said:

"Publicity is justly commended as a remedy

for social and industrial diseases. Sun-

light is said to be the best of disinfec-

tants; electric light the most efficient

policeman." Brandeis, Other People's Money

and How the Bankers Use It 62 (1914),

quoted in Plante v. Gonzalez, 575 F.2d 1119,

1127 n. 13 (5th Cir. 1978). The interest in

an informed citizenry also supports a legis-

lature's decision to adopt financial dis-

Closure legislation. An informed public is

essential to the nation's success, and a

fundamental objective of the first amendment.

See Red Lion Broadcasting Co. v. FCC, 395

U.S. 367, 390 (1969); New York Times Co. v.

Sullivan, 376 U.S. 254, 269 (1964).

34a

The absence of any clear constitutional

provision expressly protecting privacy no

doubt adds to the judiciary's reluctance to

fashion limits on laws justified as seeking

to make government more ethical. None of

the more specific and relatively well-

defined provisions of the Bill of Rights

applies to financial disclosure legislation.

Courts are therefore left to consider pos-

sible limits based only upon the general

right of privacy, an interest that permeates

our constitutional scheme but finds no

specific expression. While some former

Justices of the Supreme Court could peer

into the constitutional penumbra and discern

with confidence the contours of the privacy

right, less visionary readings now prevail.

The sweeping claims generally advanced by

plaintiffs challenging such laws have made

judicial involvement even less tenable than

the interests at stake might warrant.

Courts have rarely if ever heen provided the

35a

evidence in specific cases that might estab-

lish the propriety of limited protections

against the overbroad use of an otherwise

proper legislative device.

To the extent plaintiffs in these cases

have presented a facial attack on LL 48,

their challenge must fail. The Supreme

Court's affirmances without opinion of three

decisions upholding disclosure laws leave no

room for an attack on LL 48's constitution-

ality as a whole. But plaintiffs in this

case insisted, refreshingly, that the Court

consider their particular claims, and not

merely pass on the law as an abstract exer-

cise. They produced comprehensive evidence

of the law's purposes, its legislative back-

ground, its scope, its expected effects, and

its potential utility. They also proved

facts about themselves as municipal servants

and human beings, the jobs they do, their

record of performance, their fears and feel-

ings.

36a

Plaintiffs introduced strong evidence

to support their claims that they should be

relieved entirely of the burdens and intru-

sions created by LL 48. One could reason-

ably conclude from their evidence that LL 48

is a thoughtless and unwise intrusion by

the City into the lives of many of its most

valued employees. But the City is consti-

tutionally free to abuse its employees and

their families, so long as in doing so it

is seeking to achieve a proper objective

through a defensible means. Furthermore,

with respect to the law's obligation that

plaintiffs file the forms required by LL 48,

plaintiffs lack any strong expectation of

privacy, since such information is already

available to the Fire and Police Departments,

and the City was able to establish that dis-

closures of the information to City govern~

ment might help deter and detect conflicts

of interest and venality.

Plaintiffs did succeed, however, in

37a

establishing that on the present record the

public disclosure aspect of the challenged

law would interfere substantially with their

privacy interests in autonomy and confiden-

tiality. The law contains a mechanism that

would enable covered employees to seek to

have highly personal matters kept from public

view. But that mechanism would itself be

greatly destructive of privacy. Plaintiffs

also proved that the public disclosure com-

ponent of LL 48 serves no defensible purpose

with respect to plaintiffs in this case.

Public disclosure serves the useful purposes

of deterring and detecting corruption, of

enabling the public to perform its legisla-

tive and elective roles, and of increasing

public confidence in and knowledge about

government by enabling the public to evaluate

all the facts relevant to public issues, in-

cluding the financial facts about government

policymakers. But these purposes lacked any

evidentiary support or rational basis in this

38a

particular case. Plaintiffs are not elected,

and they lack policymaking roles; rather,

they are civil servants who achieved the

lower managerial ranks of their agencies

through success on competitive exams, after

Many years of service. The law's purpose as

to these plaintiffs appears to be disclosure

for disclosure's sake.

On the basis of the findings and con-

Clusions that follow in this opinion, there-

fore, the City's financial disclosure law is

upheld insofar as it requires disclosure to

the City government of the family financial

data sought from the plaintiff groups. The

law is invalid, however, pen as it man-

dates disclosure of all the information col-

lected from the plaintiff groups, to any

person irrespective of purpose or need.

LL 48 requires, on pain of criminal

penalty,” that all covered individuals file

annual financial statements with the City.

39a

The ordinance covers candidates for City of-

fice, most elected and appointed officials,

and all civil service employees of the City

who earn $30,000 per year or more.° LL 48

requires that these people disclose the fol-

lowing information:

"the name, address and type of

practice of any professional or-

ganization in which the person

reporting or his spouse" has any

interest "from which income of

one thousand dollars or more was

derived during the preceding

calendar year", § 1106-5.0b,

subd. 1;

the source of items "received or

accrued during the preceding

calendar year" by the employee

or his or her spouse constituting

income for services rendered of

$1,000 or more, § 1106-5.0b,

subd. 2;

each capital gain of $1,000 or