# Opposition — BARRY v. NEW YORK (Nos. 83-485, 83-484) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0481%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1983 ## Text No3483-485 And 33-484 IN THE SUPREME COURT OF THF UNITED STATES October Term, 1983 JOHN J. BARRY, MARGUERITE Vv. BARRY and JAMES GEBHARDT, on their own behaif and on behaif of ai! others similariy situatec, Petitioners, VS. CITY OF NEW YORK; NEW YORK CITY BOARD OF ETHICS; EDWARD I. KOCH, as Mayer cf the Citv of New York; and DAVID N. DINKINS, as City Clerk, Respondents. NOW CAPTION CONTINUED ON NEXT PAGE JAMES SLEVIN, MARK 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, Petitioners, vs. 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 PREISKEL as members of the Board of Ethics; and DAVID N. Dinkins, as City Clerk, Respondents. BRIEF OF THE RESPONDENTS IN OPPOSITION TOTHE PETITION FOR CERTIORARI FREDERICK A. O. SCHWARZ, JR., Corporation Counsel of The City of New York, Attorney for Respondents, 100 Church Street, New York, New York 10007 | (212) 566-4289 or | 566-4338 LEONARD KOERNER, PAUL T. REPHEN, Of Counsel. QUESTION PRESENTED Does the New York City Financial Disclosure Law, New York City Administrative Code, §1106- 5.0, as amended by Local Law No. 48 of 1979, violate any constitutionally protected right of privacy of the petitioner classes? Argument Conclusion TABLE OF CONTENTS 22 40 TABLE OF CASES Buckley v. Valeo, 424 U.S. 1(1976) tect ttt tte teees Califano v. Jobst, 434 US. 47 (1977) ote eeeee Carey v. Population Services International, 431 U.S. 678 (1977) secret ers sereeees City of Akron v. Akron Center for Reproductive Health, 76 L. Ed. 687 (1983) - County of Nevada v. MacMillen, 522 P. 2d 1345 (Sup. Ct., Calif.,1974) ****° Duplantier v. United States, 606 F. 24 654 (5th Cir., 1979), cert. den. 449 U.S. 1076 (1981) sess te rst t etree Fritz v. Gorton, 517 P. 2d 911 (Wash. Sup. Ct., 1974), app. dism'd 417 U.S. 902 (1974) s******°: Gideon v. Alabama State Ethics Comm., 379 So. 2d 570 (Ala. Sup. Ct., 1980) -***°> Goldtrap v. Askew, 334 So. 2d 20 (Fla. Sup. Ct., 1976) «++++° Griswold v. Connecticut, 381 U.S. 479 (1965) sss seer rset r eters 34 23 23 23 Page Greene v. McGuire, 683 F. 2d 32 (2d Cir., 1982) *-++++ereeeees 32 Hunter v. City of New York, 58 AD 2d 136, 396 NYS 2d 186 (1st Dept., 1977), aff'd 44 NY 2d 708 (1977), 376 N.E. 2d 928, 405 NYS2d 455 cece eee ewww wenn een eeecees 9, 10, Illinois Employees' Assn. v. Walker, 315 N.E. 2d 9 (1974), cert. den. sub. nom. Troopers Lodge No. 41 v. Walker, 419 U.S. 1058 (1974) ss eeeererecereeeces 24, 36 Lefkowitz v. Cunningham, 431 U.S. 801 (1977) settee treet te eee eee 29 Loving v. Virginia, 388 U.S. 1 (1967) seer e treet eee enews 23 Meyer v. Nebraska, 262 U.S. 390 (1923) PEO CHCHCOCOEH OOS HCE HO OCC EEE ES 22 Montgomery County v. Walsh, 336 A. 2d 97 (Ct. of Appeals, Md., 1975), app. dism'd 424 U.S. 901 (1976) ++++++rrs> 24, 35 Nixon v. Administrator of General Services, 433 U.S. 425 (1977) ss eseeecrecreceeces 24, 36 O'Brien v. DiGrazia, 544 F. 2d 543 (1st Cir., 1976), cert. den. sub. nom. O'Brien v. Jordon, 431 U.S. 914 (1977) sere eee eee eee wees 35 Opinion of the Justices to the Senate, 376 N.E. 2d 810 (Mass. Sup. Jud. Ct., 1978) -> Paul v. Davis, 424 U.S. 693 (1976) sere reer reece eeees Pesale v. Beekman, 81 AD 2d 590, 437 NYS 2d 448 (1st Dept., 1981), aff'd 54 NY 2d 707 426 NE 2d 483, 442 NYS2d 989 (1981) «+++ seer eee eens Pierce v. Society of Sisters, 268 U.S. 510 (1925) sere t tee e eee e ee Plante v. Gonzalez, 575 F. 2d 1119 (5th Cir., 1978), cert. den. 439 U.S. 1009 (1979) «++ssseeeers Plyler v. Doe, 457 U.S. 202 (1982) -+++++>:> Roe v. Wade, 410 U.S. 113 (1973) sc ccercrerccccveece Skinner v. Oklahoma, 316 U.S. 535 (1942) sere rt ee eee eee eee Smith v. Organization of Foster Families, 431 U.S. 816 (1977) «settee teeter eens Snider v. Thornburgh, 436 A. 2d 593 (Pa. Sup. Ct., 1981) -+*+++>+> -iii- Page 36 23 32 23 23 23 24 ty Page Stein v. Howlett, 289 N.E. 2d 409 (Ill. Sup. Ct. 1972), app. dism'd 412 U.S. 925 (1973) «+++++eee> 35 Whalen v. Roe, 429 U.S. 589 (1977) see errr eee ee secens 24, 34, 36 Zablocki v. Redhail, 434 U.S. 374 (1978) oo... 0:9 ao. 36 6 0.8 .6.6.6.6 8.8.6 23 -iv- IN THE SUPREME COURT OF THE UNITED STATES October Term, 1983 Nos. 83-485 and 83-484 JOHN J. BARRY, MARGUERITE V. BARRY and JAMES GEBHARDT, on their own behalf and on behalf of all others similarly situated, Petitioners, vs. 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, Respondents. CAPTION CONTINUED ON NEXT PAGE JAMES SLEVIN, MARK 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, Petitioners, vs. 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 PREISKEL as members of the Board of Ethics; and DAVID N. DINKINS, as City Clerk, Respondents. BRIEF OF RESPONDENTS IN OPPOSITION TO THE PETITION FOR WRIT OF CERTIORARI oj- STATEMENT OF THE CASE (1) These cases are class actions brought pursuant to 42 USC §1983 by New York City police officers (Barry v. City of New York), fire officers (Slevin v. City of New York), and their spouses challenging the constitutionality of New York City Administrative Code, §1106-5.0, as amended by Local Law No. 48 of 1979. The law requires candidates for City office, elected officials, agency heads, members of City boards and commissions who receive compensation, employees in the City's managerial pay plan and all other City employees earning annual salaries of $30,000 or more to file with the City Clerk annual reports disclosing certain financial interests, and makes such reports available for public inspection. The statute also contains a procedure by which a person required to file a financial disclosure report can assert a privacy claim against public disclosure of a portion or all of the information contained in the report. «Qo The petitioner class in Barry consists of police officers of the rank of captain and above and their spouses. This class, out of a total force of 25,000 police officers, includes approximately 250 captains, 80 deputy inspectors, 40 inspectors, 20 deputy chiefs, 10 assistant chiefs, 5 bureau chiefs and 1 chief of operations. All ranks above the rank of captain are non-civil service and are appointees of the police commissioner. The Barry class also includes lieutenants designated as supervisors of detective squads and/or special assignment, and police surgeons. Police surgeons are physicians who are members of the uniformed force and treat police officers and determine their fitness for duty. The petitioner class in Slevin consists of battalion chiefs, deputy chiefs and medical officers of the Fire Department and their spouses. At the time the litigation was commenced, the Fire Department employed approximately 80 deputy chiefs, 280 battalion chiefs and 10 medical officers out of a total force of 9,500 firefighters. The -3- primary duty of deputy chiefs and battalion chiefs is to supervise firefighting operations. Battalion chiefs supervise five to eight fire companies, and deputy chiefs supervise three or four battalions. Medical officers, like their counterparts in the Police Department, supervise the treatment of firefighters and determine their fitness for duty. In addition to their firefighting responsibilities, battalion chiefs and deputy chiefs have broad responsibility for supervising fire inspections within the areas of their commands (Slevin, Joint Appendix, pp. 391-393, 399-404). In addition, chiefs hold important supervisory positions in the Fire Department's Bureau of Fire Prevention, which inspects major buildings and structures, and in its Maintenance and Communications Divisions, whose responsibilities include the purchase of new equipment and spare parts (Slevin, Joint Appendix, pp. 377-381, 396-399). Facts (1) Legislative History of §1106-5.0 Administrative Code, §1106-5.0 was initially enacted by the City Council in 1975 (Local Law No. 1 of 1975). As originally enacted, §1106-5.0 required the Mayor, the City Council President, the members of the City Council, the five Borough Presidents, the City Comptroller and declared candidates for those positions, as well as each commissioner or agency head, assistant commissioner or assistant agency head, board member, and city employee whose salary was $25,000 or more, to file with the City Clerk not later than June thirtieth of each year a report disclosing certain financial interests. Each person filing a report was, and after subsequent amendments to the statute still is, required to list the following items on behalf of himself or herself and his or her spouse (§1106-5.0, subd. b): The mame, address and type of practice of any professional organization in which the person reporting or his spouse was an officer, director, partner, proprietor, employee or advisor from which income of $1,000 or more was derived during the preceding calendar year. The source of any income of $1,000 or more received during the preceding calendar year (for services rendered. Any capital gain from a single source of $1,000 or more other than from the sale of a residence occupied by the filer. Reimbursement for expenditures of $1,000 or more in each instance. Honoraria from a single source in an aggregate amount of $500 or more and any gift in the aggregate amount of $500 or more from any single source received during the preceding year. Each creditor to whom the person reporting or his spouse was indebted for a period of ninety consecutive days or more during the preceding calendar year in an amount equal to or exceeding $5,000. Each investment or parcel of real estate in which a value of $20,000 or more was held at any time during the preceding calendar year based on its cost or if acquired by means other than purchase, its estimated value at the time of receipt. The identity of each trust or other fiduciary relation in which a beneficial interest was held during the preceding calendar year having a value of $20,000 or more. The statute does not require the filer to disclose the precise amount of the income, investments and indebtedness items required to be disclosed. Rather, it requires only approximate disclosure within broad dollar ranges. (§1106-5.0, subd. b (6)(a)(b)(c)) Thus, with respect to income derived from services rendered, including services rendered to professional organizations, reimbursements or capital gains other than from the sale of a personal residence, the filer checks an appropriate box on the report indicating whether the income received by him or his spouse was at least $1,000 but less than $5,000, at least $5,000 but less than $25,000, at least $25,000 but less than $100,000, or in excess of $100,000. Similar -7- categories are provided for gifts and honoraria with the addition that the filer can check a box indicating that the gift or honoraria was between $500 and $1,000. With respect to indebtedness, the person filing the report checks the appropriate box indicating whether his or his spouse's debt was at least $5,000 but less than $25,000, at least $25,000 but less than $100,000, at least $100,000 but less than $500,000 or was $500,000 or greater. Lastly, with respect to investments, trusts and fiduciary relationships, and real property holdings, the categories are: at least $20,000 but less than $100,000, at least $100,000 but less than $500,000 and $500,000 or greater. Intentional violations of §1106-5.0 constitute a misdemeanor punishable by imprisonment for not more than one year or a fine not to exceed $1,000 or both (§1106-5.0, subd. g). Local Law No. 1 of 1975 made the financial disclosure reports available to taxpayers. Unlike the law now being challenged, however, it did not establish a procedure by which a person making a report could claim that its public disclosure would invade his or her privacy. (2) In June 1975 a class action was commenced in the Supreme Court of the State of New York on behalf of all individuals in the competitive and non- competitive classes of the civil service of the City earning annual salaries of $25,000 or more, challenging the constitutionality of Local Law No. 1 of 1975, inter alia, on the ground that it violated the privacy rights of the class under the United States Constitution. That action was rejected by the State Supreme Court in Hunter v. City of New York, 88 Mise. 2d 562 (Sup. Ct., N.Y. Co., 1976). On appeal, the Appellate Division, First Department of the Supreme Court held that the City Council could enact a provision requiring that class of employees and their spouses to make public disclosure of their financial interests, but held Administrative Code, §1106-5.0 infirm on the ground that it did not afford a covered employee the opportunity to present a claim that the public disclosure of an item contained in the report would unnecessarily intrude upon the employee's privacy. Hunter v. City of New York, 58 AD 2d 136, 396 NYS2d 186 (1977). The New York Court of Appeals unanimously affirmed the order of the Appellate Division, First Department on the opinion of that Court. 44 NY 2d 708, 376 N.E.2d 928, 405 NYS2d 455 (1977). In 1979 the City Council acted to correct the constitutional infirmity in §1106-5.0 which was found to exist by the Court in Hunter. in addition, it made other changes with respect to its scope of coverage (Local Law No. 48 of 1979). The Council adopted a procedure whereby an employee could assert a privacy claim with respect to any items contained in his or her financial disclosure report. Any person required to file a report is permitted, at the time the report is filed or at anytime thereafter, except when a request for public inspection is pending, to submit a request to withhold any item disclosed therein from public -10- inspection on the grounds that such inspection would constitute an "unwarranted invasion of his or her privacy" (§1106-5.0, subd. d[1]). Privacy requests must be made in writing and must set forth the basis for the claim. The financial disclosure report form provides space for an individual to make a privacy claim and to set forth the basis for that claim (JA29-32).1 Privacy requests are evaluated by the public members of the New York City Board of Ethics, a board consisting of three public members, in addition to the Corporation Counsel and City Personnel Director. The Board of Ethics is established by New York City Charter, Chapter 68 ($2600 et seq.) to render advisory opinions to City officers and employees with respect to questions of ethical conduct, conflicts of interest and other matters arising under that chapter of the City Charter (Charter, §2602, subd. [a]). In determining +Numbers in parentheses preceded by "JA" refer to the pages of the joint appendix in Barry. Other numbers in parentheses refer to the appendix to the Barry petition. -ll- whether public inspection of an item would constitute an unwarranted invasion of privacy, the Board of Ethics must consider the following factors (§1106-5.0, subd. d[2]): "(a) whether the item is of a highly personal nature; (b) whether the item in any way relates to the duties of the position held by such person [making the privacy request]; (c) whether the item involves an actual or potential conflict of interest." The Board of Ethics is empowered to establish procedures for consideration of privacy requests. The procedure, inter alia, permits the filer to appear before the Board in person or by writing to state the basis for the claim that the information should be withheld from the public (§1106-5.0, subd. d(3]). In instances where a person has asserted a privacy claim, the disclosure report is sealed and kept in the office of the City Clerk. A privacy claim is not evaluated by the Board of Ethics unless -12- a member of the public requests permission in writing to inspect an item contained therein (JA 345). At that time, the City Clerk refers the request for public inspection and the financial disclosure report, including tnat portion of the report in which the filer states the basis for his privacy request, to the Board of Ethics for evaluation (JA 345). The City Clerk also notifies the employee that a request has been made to inspect his report and that the matter has been referred to the Board of Ethics (JA 346).2 The employee is reminded of his right to appear before the Board, and is offered the opportunity to submit additional material in support of his claim (JA 346). Determinations by the Board of Ethics are in writing and set forth the reasons for the determination ($1106-5.0, subd. d[4]). “Persons filing financial disclosure report forms are always notified when a member of the public seeks to inspect his or her report regardless of whether a privacy request has been claimed by the employee. If the privacy claim is sustained, the parties are notified, and the disclosure report, with the item or items adjudged to warrant privacy protection deleted from the report, is returned to the City Clerk (JA 346). If the privacy request is not upheid, the person filing the privacy claim is so notified by the Board of Ethics and is afforded the opportunity to request a rehearing by the Board and to submit additional material (JA 347). He is also advised of his right to seek judicial review of the Board's determination (JA 347). The employee is allowed ten days to determine his course of action, thus affording hirm the opportunity to seek judicial relief, including injunctive relief, by way of a proceeding in state court. If the Board does not hear from the employee within ten days, the report is returned to the City Clerk and made available for public inspection without deletion (JA 347). That portion of the financial disclosure report in which the filer discusses the basis for the assertion of the -14- privacy claim is never made available for public inspection (347). In addition to establishing a privacy procedure, Local Law No. 48 of 1979 contained several other amendments. Employees in the City's managerial pay plan were made subject to §1106-5.0 regardless of their salary, and the minimum salary level at which other City employees are required to file reports was increased from $25,000 to $30,000.3 The Board of Ethics has been called upon to make twenty-six determinations of privacy claims since the enactment of Local Law No. 48. Sixteen of those claims were sustained by the Board of Ethics, six were withdrawn by the employees and one was otherwise disposed of (JA 347). Only three privacy requests have been denied by the Board (JA 347). Those three requests were denied because the filers failed to provide the Board of Ethics with *The City administration has recently transmitted to the City Council a bill which, if enacted, would increase the filing threshold from $30,000 to $42,000. -15- additional information supporting their claims (JA 349). (3) The Litigation Challenging Local Law No. 48 of 1979 On September 4, 1979, plaintiffs commenced the instant action on their own behalf and on behalf of others similarly situated. District Court Judge Abraham Sofaer granted a preliminary injunction prohibiting the City from enforcing §1106-5.0, as amended by Local Law No. 48 of 1979, with respect to the plaintiff classes. Following hearings on these cases, the District Court concluded that §1106-5.0 was constitutional insofar as it required disclosure to City government, but unconstitutional with respect to _ public inspection of the plaintiffs' reports (4la-103a). It held that government access to the reports would help to root out corruption and conflicts of interest. The Court observed (70a): -16- "Corruption and more subtle conflicts of interest are possible in each group of plaintiff employees. That no corruption has been proven among several groups of plaintiffs does not establish that improprieties have not occurred or would never be deterred or uncovered by the filings." The Court also rejected the argument that the inclusion of information relating to the spouse's activity would significantly affect decisions to marry, procreate or to make other intimate family decisions protected by the Constitution (67a). The District Court held that the public disclosure of the reports in the case of persons who are neither elected officials nor "policymakers" did not serve any useful public purpose (80a-93a). It also concluded that the financial disclosure reports would be made readily available to members of the public, including salesmen, neighbors, relatives, former spouses, and business and charitable organizations (74a).