Petition — Patrolmen's Benevolent Ass'n of New York v. DeMilia

83-1473 f

NO. MAR 6 84

AMNUER STEVAS,

RN :

Supreme Court of the United States

Ocroszr Tzrm, 1983

PATROLMEN’S BENEVOLENT ASSOCIATION OF

THE CITY OF NEW YORK, INCORPORATED,

AND PHIL CARUSO, PRESIDENT OF THE PA-

TROLMEN’S BENEVOLENT ASSOCIATION OF

THE CITY OF NEW YORK,

Petitioners,

against

YORK

LSSSSS— —_ ________

Ricuarp HAAR

Cownsel for Petitioners .

252-00 Horace Harding Expressway 1

Little Neck, New York 11362 4

(212) 423-1800

—

Question Presented

Whether the Respondent should have access to Peti-

tioner Corporation’s membership list, purportedly pursu-

ant to New York State statute (Not-for-Profit Corpora-

tion Law 6621), where said membership list consists of

r Cae ce

ing legitimate rights of privacy and

guaranteed by the United States — “heas Be.

spondent has no legitimate reason for obtaining said mem-

bership list.

cp NE ty NT CVn oe Bn gan See ee nm

. * 9

4

Orrstox BLOW.

JURISDICTION

Sraruronr Provision Ixvotvep ,

SraTeMENT or THE CasE

Reasons ror GRANTING THE WRIT:

Point I—Respondent should not have access to

Petitioner Corporation’s membership list, pur-

3 portedly pursuant to New York State statute

(Not-For-Profit Corporation Law 6621), where

said membership list consists of names and ad-

dresses of New York City Police Officers, hav-

ing legitimate rights of privacy and confiden-

tiality as guaranteed by the United States Con-

tution, where Respondent has no legitimate

reason for obtaining said membership list

J Conxciusion

7 _ APPENDIX:

A—Order of the Supreme Court of the State of

New York, County of New York

B—Memorandum Decision (Ascione, J.) of the

Supreme Court of the State of New York,

County of New York

C—Order of the Supreme Court of the State of

New York Appellate Division—First De-

partment

D—Order of the Court of Appeals of the State of

New York Denying Motion for Leave to Ap-

peal to the Court of Appeals

E—Decision of the Court of Appeals of the State

of New York Denying Motion for Reargu-

ment of the Motion for Leave to Appeal to

the Court of Appeals

10a

TABLE OF AUTHORITIES

PAGE

Table of Authorities

Cases Cited

Crane Company v. Anaconda Company, 39 NY2d 14

(1976) . 5

Matter of DePaula v. Memory Gardens, Inc., 90 AD2d

886 (3d Dept., 1982) 5

United States Cor titution Cited

Amendment 1 7

Amendment 4 7

Amendment 9

Statutes Cited

Not-for-Profit Corporation Law:

Sec. 621 i, 3,5

Sec. 621(b) 2,7

28 U.S. C.:

Sec. 1257 (3) , 2

S

oe

*

10)

NO.

Supreme Court of the United States

Ocroszr Tzrm, 1983

tin

>

PATROLMEN’S BENEVOLENT ASSOCIATION OF

THE CITY OF NEW YORK, INCORPORATED,

AND PHIL CARUSO, PRESIDENT OF THE PA-

TROLMEN’S BENEVOLENT ASSOCIATION OF

THE CITY OF NEW YORK,

Petitioners,

against

SAMUEL DeMILIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

Petitioners, Patrolmen’s Benevolent Association of The

City of New York, Incorporated and Phil Caruso, Presi-

dent of the Patrolmen’s Benevolent Association of the City

of New York pray for a writ of certiorari to review orders

of the Court of Appeals of the State of New York, entered

in these proceedings on December 20, 1983 and February

28, 1984, which denied a motion for leave to appeal to said

Court of Appeals, of an Order of the Supreme Court of

at

2 * rr

the State of New York, Appellate Division, First Judicial

Department entered in these proceedings November 1, 1983

and which affirmed a judgment of the Supreme Court of

the State of New York, County of New York, which granted

Respondents access to Petitioner Corporation’s member-

ship list of names and addresses of present and retired

members.

Opinion Below

The opinion of the Supreme Court of the State of New

York, County of New York, granting Respondent’s applica-

tion to have access to the membership list of the Petitioner

Corporation the Order of the District Court, appears at

page 5a to 7a of the attached appendix (1983). The

opinion has not been officially reported.

Jurisdiction

The final orders of the Court of Appeals of the State

of New York were entered on December 20, 1983 and Feb-

ruary 28, 1984.

The jurisdiction of this Court is invoked under 28 U.S.C.

§1257(3). This Court has jurisdiction of the controversy

because it involves a. . title, right, privilege or immunity

. specially set up or claimed under the Constitution,

treaties, statutes of, or commission held or authority exer-

cised under the United States.” 28 U.S.C. §1257(3).

Statutory Provision Involved

Section 621(b) of the Not-for-Profit Corporation Law

of the State of New York provides

3

“Any person who shall have been a member of rec-

ord of a corporation for at least six months imme-

diately preceding his demand, or any person hold-

ing, or thereunto authorized in writing by the holders

of, at least five percent of any class of the outstand-

ing capital certificates, upon at least five days writ-

ten demand shall have the right to examine in person

or by agent or attorney, during usual business

hours, its minutes of the proceedings of its members

and list or record of members and to make extracts

therefrom.”

Statement of the Case

Petitioner Patrolmen’s Benevolent Association of the

City of New York, Inc. is incorporated as a private, Not-

for-Profit corporation under the laws of the State of New

York. Petitioner Phil Caruso is President of the Patrol-

men’s Benevolent Association of the City of New York.

Respondent, Samuel DeMilia, is a retired member of the

aforesaid Corporation.

Respondent initiated an action, through an Order to

Show Cause, to compel Petitioners to provide him with

access to a list of the names and addresses of the mem-

bers of Petitioner Corporation. This action was based

upon §621 of the Not-for-Profit Corporation Law of the

Laws of New York. Respondent relied upon his status

with the Petitioner Corporation, as a retired member, to

justify receipt of said membership list.

In a memorandum decision dated May 27, 1983, Su-

preme Court of the State of New York, New York County

(Hon. Alfred M. Ascione, J.) granted Respondent’s mo-

tion and an Order was issued, dated July 26, 1983 (See

Appendix A) compelling the Appellants to:

4

“(A)llow plaintiff to make a computer disk copy of

the names and addresses of all members of the Pa-

trolmen’s Benevolent Association of the City of New

York at plaintiff’s sole cost and expense.” (See Ap-

pendix B).

Petitioners appealed the decision to the Supreme Court

of the State of New York, Appellate Division, First Judi-

cial Department. After the filing of briefs and hearing

of oral argument, the Appellate Division unanimously af-

firmed the lower Court, without rendering an opinion.

(See Appendix C).

A motion for leave to appeal to the Court of Appeals of

the State of New York, was duly made by Petitioners, The

Court of Appeals denied the Motion on December 20, 1983.

The Order denying the Motion, and the Notice of Entry

thereof were served upon Counsel for Petitioners on Jan-

uary 11, 1984. (See Appendix D).

Petitioners then made a motion to the Court of Appeals

of the State of New York for reargument of the aforesaid

denial of the motion for leave to appeal to said Court.

The Court of Appeals denied the motion on February 28,

1984. (See Appendix E).

The instant petition for a writ of certiorari ensued.

5

REASONS FOR GRANTING THE WRIT

POINT I

Respondent should not have access to Petitioner

Corporation’s membership list, purportedly pursuant

232 ee r

Law $621), where said membership list consists of

names and addresses of New York City Police Officers,

having legitimate rights of privacy and confidentiality

as guaranteed by the United States Constitution, where

Respondent has no legitimate reason for obtaining said

membership list.

A member’s right of inspection under both common law

and New York State Not-For-Profit Corporation Law 5621

(b) is not absolute. A member desiring to inspect and copy

a membership list from a corporation must make the

application in good faith and for a proper purpose. Matter

of DePaula v. Memory Gardens, Inc., 90 AD2d 886 (3d

Dept., 1982).

Once a member has established that he has such a legiti-

mate purpose and has acted in good faith, the corporation

in question must either provide the member with the list

or establish that the member seeks the list in bad faith

or an improper purpose. See Crane Company v. Anaconda

Company, 39 NY2d 14 (1976).

It is conceded that Plaintiff-Respondent is a retired

police officer and that he is a retired member of the De-

fendant-Appellant Corporation. However, it is submitted

that the Record adduced in the proceedings below fails

to establish that Plaintiff-Respondent made his application

either in good faith or for a proper purpose. Therefore,

without further analysis, it would appear that in order

a rns ‘ 2

8 rr 4 4 ee” Mae

to receive the sought after membership list, Plaintiff-

Respondent must make more of a showing than he has

done up to date. The fact that Plaintiff-Respondent has

made no showing as to the purpose for which he wishes

to employ the membership list, and indeed, he has made

absolutely no good faith assertions in connection with his

quest, Defendants-Appellants were justified in denying his

request.

It is submitted that Petitioners herein, both corporate

and the corporate president, have a duty to ensure that

the membership list of their corporation does not fall into

the wrong hands.

This is all the more of significance when one considers

the nature of the membership of Defendant-Appellant

Corporation. Indeed, the issue does not involve the mem-

bership of a milkman’s association or an auto mechanic’s

union. It involves a benevolent association of New York

City Police Officers. It is beyond dispute and states the

in the course of their duties, work in an undercover capa-

city, where their identities are necessarily secret. Many

other police officers, in the course of carrying out of their

fore, it is clear that the identities and residences of police

officers must remain confidential, absent a substantial show-

ing, not present here.

7

It is submitted that when the Courts of the State of New

York, pursuant to the cited State statute, ordered Petitioner

Corporation to turn over to Respondent, their membership

list, certain rights of the membership of the Corporation,

guaranteed by the United States Constitution were affected.

These rights involve legitimate concerns of privacy, con-

fidentiality and freedom from hostile action by criminal

elements of society, who would seek reprisals against the

membership of the Petitioner Corporation, who are or were

actively involved in law enforcement activities. Surely,

Amendments 1, 4 and 9 to the United States Constitution

protect the Petitioner Corporation and its membership

from improper intrusion, such as that, which in effect, was

ordered, albeit unwittingly, by the orders of the Courts of

the State of New York.

It is requested that this Court intervene and act to shield

Petitioner Corporation and its membership from this seri-

ous threat to Constitution rights.

In passing, the Court should be made aware that both

Houses of the Legislature of the State of New York have

passed a bill to amend the said section §621(b) of the State

Not-for-Profit Corporation Law. The intent of the Legis-

lature, in so amending the statute, reflects a concern of

said body, lest the improvident judicial construction of

the statute by the New York Courts, in allowing the po-

tentially unchecked distribution of the names and addresses

of New York City Police Officers, result in tragedy. The

bill is presently awaiting the signature of the Governor

of the State of New York.

9 9

f

Little Neck, New York 11362

(212) 423-1800

Certificate

Richard Hartman hereby certifies that he is a member

of the bar of the Supreme Court of the United States

and states that three copies of the Petition for a Writ of

Certiorari to the Court of Appeals of the State of New

York were mailed by postpaid First Class Mail to the

following:

Peter J. Maloney

Counsel for Respondent

2248 Broadway

New York, New York 10024

by depositing same in a United States Post Office at

90 Church Street, New York 10007

with first class postage prepaid and that forty copies were

deposited in a United States Post Office at 90 Church

Street, New York, New York 10007 with first class postage

prepaid and properly addressed to The Clerk of the

Supreme Court of the United States, Supreme Court

Building, One First Street, N.E. Washington, D.C. 20543,

Sworn to before me

this 5th day of

March, 1984

Rot AnDο W. Jonson

Notary Public, State of New York

No. 4502705

Qualified in Deleware County

Commission Expires March 30, 1985

APPENDIX A

Order of the Supreme Court of the State of New York,

County of New York

At a Special Term, Part I of the

Supreme Court of the State of New

York, held in and for the County

of New York, at the Courthouse

thereof, 60 Centre Street, New

York, New York on the 20 day of

July, 1983

Present:

Hon. Alfred M. Ascione

Justice

| SAMUEL DeMILIA,

Plaintiff,

PATROLMEN’S BENEVOLENT ASSOCIATION OF

: THE CITY OF NEW YORK, INCORPORATED, and

N PHIL CARUSO, as President of the Patrolmen’s Ben-

q evolent Association of the City of New York,

4 Defendant.

Index No. 24852/82

—

Oa

N

b

2a

Appendia A

Upon reading and filing the order to show cause signed

by the Honorable Thomas J. Hughes, Supreme Court of

the State of New York, on the 3rd day of May, 1983, the

affidavit of Samuel DeMilia, sworn to on the 3rd day of

May, 1983, and the exhibits annexed thereto, the affidavit

of Phil Carusa, sworn to on the 12th day of May, 1983,

and the exhibits annexed thereto, the affidavit of Samuel

DeMilia, swort o on the 17th day of May, 1983, and the

exhibits annexed thereto, and the decision of the Honorable

Alfred M. Ascione dated the 27th day of May, 1983, it is

hereby

ORDERED, that defendant, Patrolmen’s Benevolent As-

sociation of the City of New York, Inc. allow plaintiff to

make a computer disk copy of the names and addresses

of all members of the Patrolmen’s Benevolent Association

of the City of New York at plaintiffs sole cost and expense.

ENTER:

AMA

(Filed: July 26, 1983, County Clerk’s Office New York)

4

APPENDIX B

Memorandum Decision (Ascione, J.) of the Supreme

Court of the State of New York, County of New York

SUPREME COURT OF THE STATE OF NEW YORK

Special Term Part I, New York County

at the Courthouse thereof, 60 Centre Street, New York,

New York, 10007.

Present :

Hon. Alfred M. Ascione

Justice |

‘ |

— —

SAMUEL DeMILIA,

Plaintiff,

—against—

PATROLMEN’S BENEVOLENT ASSOCIATION OF

THE CITY OF NEW YORK, INCORPORATED, and

PHIL CARUSO, as President of the Patrolmen’s Ben-

evolent Association of the City of New York,

Defendant.

+

The following papers numbered 1 to 6 read on this

motion submitted.

: No. 146 on Calendar of May 18, 1983.

+4

Appendiæ B

Papers Numbered

Plaintiffs’ Order to Show Cause and Affidavits

Annexed 1&2

Defendant’s Answering Affidavit in Opposition 4

Plaintiffs’ Replying Affidavit in Support 5 & 6

Affidavit of Service 3

Upon the foregoing this motion is decided in accordance

with accompanying memorandum decision.

A.M.A

JS.C.

Dated May 27, 1983

Briefs: Plaintiff’s X, Defendant’s X.

County Clerk’s No. 24852 1982

Spee I D62, 9 1988

: 5a

Appendiz B

SUPREME COURT : NEW YORK COUNTY

Special Term, Part I

i

_

SAMUEL DeMILIA,

Plaintiff,

—against—

PATROLMEN’S BENEVOLENT ASSOCIATION OF

THE CITY OF NEW YORK, INCORPORATED, and

PHIL CARUSO, as President of the Patrolmen’s Ben-

evolent Association of the City of New York,

Defendant.

MEMO

Index No. 24852/82

# 146 of 5/18/83

ALFRED M. ASCIONE, J.:

Motion for an order permitting plaintiff to inspect the

membership list of the defendant corporation is granted.

Section 621 (b) of the Not-for-Profit Corporation Law

provides in pertinent part:

Ls

6a

Appendia B

Any person who shall have been a member of record

of a corporation for at least six months immediately

preceding his demand .. . upon at least five days

written demand shall have the right to examine

[the] record of members and to make extracts there-

from.

It is undisputed that plaintiff is a lifetime member of

the corporation; that he held such membership for the

six months immediately preceding his demand to inspect

the membership list; and that his request has been refused

by defendants. Defendants justify their refusal on the

grounds that plaintiff is not a qualified candidate for elec-

tive office and cannot have a legitimate fieed for the list;

that as a retired member of the PBA he has only a mini-

mal interest in the corporation; and that there is a strong

public policy against publication of the names and ad-

dresses of police officers. None of these grounds provides

a reasonable basis for defendants’ refusal, however.

Article 3, Section 5 of the Constitution and By-laws of

the Patrolmen’s Benevolent Association provides that mem-

bers such as plaintiff are entitlled to all the rights and

benefits of active members. Thus, plaintiff is entitled to

make an application under section 621 of the NPCL.

Moreover, the status of plaintiff’s candidacy is irrelevant

to the present application. As a member of the associa-

tion, subject to its policies and decisions regarding bene-

fits, representation, and other emoluments of membership,

plaintiff has the right to express his opinions and commu-

nicate his views concerning the administration of the or-

ganization to other members. This right is not necessar-

ily contingent on his actively seeking elective office in the

association. In this regard, the court also notes paren-

7a

Appendiæ B

‘ thetically that plaintiff has challenged defendants’ refusal

‘ to recognize his candidacy and that he commenced the in-

stant action, inter alia in an effort to annul that decision.

Nor, as conceded by plaintiffs, does the publie policy of

this state require that plaintiff be denied access to the

membership list so long as he has standing to apply un- |

der the statute and has a legitimate reason for release ;

7

3 1

r ee

of the information.

Dated: May 27, 1983

A.M.A

J. S. C.

8a

APPENDIX C

Order of the Supreme Court of the State of New York

| Appellate Division—First Department

(Filed—November 1, 1983)

ORDER OF AFFIRMANCE BY THE APPELLATE

DIVISION FIRST DEPARTMENT held in and for the

First Judicial Department in the County of New York, on

November 1, 1983.

Hon. Leonard H. Sandler, Justice Presiding

Joseph P. Sullivan :

David Ross

Sidney H. Asch

Fritz W. Alexander, II, Justices.

17819

SAMUEL DeMILAA,

Plaintiff-Respondent,

—against—

PATROLMEN’S BENEVOLENT ASSOCIATION OF :

THE CITY OF NEW YORK, INCORPORATED, and

PHIL CARUSO, as President of the Patrolmen’s Ben-

evolent Association of the City of New York,

Defendants-A ppellants.

|

7

9a

Appendiz C

An appeal having been taken to this Court by the de-

fendants-appellants from an order of the Supreme Court,

New York County (Alfred Ascione, J.), entered on July

26, 1983, which granted plaintiff’s motion to permit plain-

tiff to inspect and make a computer disc copy of names

and addresses of the membership list of the defendant

Policemen’s Benevolent Association,

And said appeal having been argued by John Maguire

of counsel for appellants, and by Peter J. Maloney of coun-

sel for respondent; and due deliberation having been had

thereon,

It is unanimously ordered that the order so appealed

from be and the same is hereby affirmed, without costs and

without disbursements.

ENTER:

Fnaxcm X. Gap

Deputy Clerk.

10a

APPENDIX D

Order of the Court of Appeals of the State of New York

Denying Motion for Leave to Appeal to the

Court of Appeals

STATE OF NEW YORK,

COURT OF APPEALS

At a session of the Court, held at

Court of Appeals Hall in the

City of Albany on the twentieth

day of December A. D. 1983

Present,

Hon. Lawrence H. Cooke,

Chief Judge, presiding.

#1 Mo. No. 1201

in

—_

In THe Matrer or THE APPLICATION

of

SAMUEL DzMILIA,

Respondent,

PATROLMEN’S BENEVOLENT ASSOCIATION OF

THE CITY OF NEW YORK, INCORPORATED, ET

AL,

Appellants,

4

:

vy >

¥

1

a

lla

Appendiz D

A motion for leave to appeal to the Court of Appeals in

the above cause having been heretofore made upon the

part of the appellants herein and papers having been sub-

mitted thereon and due deliberation thereupon had, it is

ORDERED, that the said motion be and the same here-

by is denied with twenty dollars costs and necessary re-

production disbursements.

Donato M. Sn

Clerk of the Court

In THE MatTer or THE APPLICATION

of

SAMUEL DeMILIA,

Respondent,

PATROLMEN’S BENEVOLENT ASSOCIATION OF

THE CITY OF NEW YORK, INCORPORATED, ET

AL.,

Appellants.

*

Motion for reargument of motion for leave to appeal

denied with twenty dollars costs and necessary reproduc-

tion disbursements.

Decision Court of Appeals February 28, 1984.