Appendix — Lamont v. Commissioner of Motor Vehicles

APPENDIX

Opinion of Court of Appeals, Second Circuit —

~~ >

v rT

CorLISsS Lamont, on behalf of himself and all others

similarly situated,

Plainti f-A ppellant,

v.

. CoMMISSIONER OF Movor VEHICLEs and R. L. Potx’& Co., |

Defendauts-A ppellees.”

No. 205, Docket 31595

United States Court of Aap

Second Circuit.

Argued Nov. 28, 1967.

i? Decided Dec. 12, 1967.

ie

» 4 7

‘Appeal from an order of the United States District

Court for the Southern District of New York, Marvin E.

Frankel, J., denying appellant’s motion to.convene a three-

judge court and granting’ appellees’ motion’ to dismiss the

complaint. Opinion below reported at 269 F: Supp: 880.

Leonard Boudin,. New York City (Rabinowitz &

Boudin, Victor Rabinowitz, New York City, David. Rein,

Washington, D. C., and Joan Goldberg, New York City,

of counsel), for plaintiff-appellant. | .

Mortimer Sattler, New York City (Louis J. Lefkowitz;

Atty. Gen., of the State of New York, Samuel A. Hirsho-

witz, First Asst. Atty. Gen., and Joel Lewittes, New York

la

Opinion of Court of Appeals, Second Circuit

_ City, of counsel), for defendant-appellee, Commissioner

of Motor Vehicles.

Wyllys S: Newcomb, New York City :( Royall, Koegs!,

Rogers & Wells, John M. O’Hara and Guy C. Quinlan,

New York City, of counsel), for ae

R...L. Polk & Co.

Before Moore, Smitu and Hays, Circuit Judges.

PER CuRIAM:

"We affirm for substantially the reasons contained in -

the opinion of Judge Frankel reported at 269 F. Supp.

880 (S. D. N. ¥. 1967).

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. Opinion of United States District Court,

Southern District of New York

=

ser

Cortiss LAmont,: on behalf of himself and all others.

similarly situated, , , ‘

. ; aoe Plaintiff,

v. ; e oe

Com MISSIONER oF Motor Ventctes and R. L. Poix & Co.,

Defendants.

No. 67 Civ. 1540.

United States ‘District Court

S. D. New York.

June 22, 1967.

P<

bd

Rabinowitz & Boudin, New York City, for plaintiff;

Leonard B. Boudin, Joan Goldberg, New York City, of

counsel.

Louis J. Lefkowitz, Atty. Gen. of State of New York,

New York City;-for defendant, Commission of Motor Ve-

hicles; Mortimer Sattler, Asst. Atty. Gen., of counsel.

Royall, Koegel, Rogers & Wells, New York City, for

defendant, R. L. Polk & Co.; Wyllys S. Newcomb, John M.

O’Hara, Russell H. Beatie, Jr., New York City, of counsel.

OPINION

FRANKEL, District Judge.

Suing for himself “and all other owners of motor

vehicles duly registered” in New York, plaintiff seeks de-

claratory and injunctive relief based upon the asserted

unconstitutionality of N. Y. Vehicle and Sram Law, ‘Mc-

4a

Opinion of United States District. Court,

Southern District of New York

Kinney’ s Consol. Laws, c. “71, § 202(3), which provides

that the Commissioner of Motor. Vehicles

“may, in his discretion, contract with the iene

_responsible bidder to furnish copies of records ,

all vehicle registrations for any registration period,

or number of periods not exceeding five years in the

aggregate, with respect to a given territory. In such

event, the fees provided by this section [for search-

ing and supplying copies of such records] ‘shall not

apply to copies of records furnished under any such

contract.” :

The defendants are the Commissioner of Motor Vehicles

and R. L. Polk & Co., which is said to be in the business,

inter alia, of compiling directories and is alleged to have

acquired the registration records as “the highest respon-

sible bidder” under the statute. In addition to seeking a

declaration that § 202(3) is unconstitutional under the

First, Fourth, Fifth, Ninth, and Fourteenth Amendments,

along with an injunction “restraining the enforcement and

operation” of the statute, plaintiff asks for a judgment of —

$10,000 against defendant Polk. The court’s jurisdiction |

is said to rest upon 28 U. S. C. §§ 1331, 1343(3), 2201,

2202, 2281, and 2284; 42 U.S. C. § 1983; and the foregoing

Amendments to the Federal Constitution.

Plaintiff has moved for the convening of a three-judge

court under 28 U.S. C. §§ 2281 and 2284.” Defendants

1Plaintiff’s motion papers also request a preliminary injunction,

but it was stated upon argument that this application is not being

pressed at this time, pending the ruling on whether a three-judge

court is appropriate.

Sa

Opinion of United States District Court,

Southern District of New York

| oppose the motion, urging that the asserted constitutional

‘ . issue is “plainly unsubstantial,” Ex parte Poresky, 290 U. S.

8, 42, 54 S. Ct. 3, 78 L. Ed. 152 (1933); cf. Bailey v.

Patterson, 369 U. S. a, 82 S. Ct. 549, 7 L. Ed. 2d 512

| (1962), and that the complaint should, eo be

dismissed by a single judge. |

_ The allegations generating these opposing icilibi

as true, of course, for present purposes—are: that plaintiff

and others like him are. compelled to register their motor

vehicles with the Commissioner; that defendant Polk,

having acquired the registration records,-uses the names

itself, or sells or leases the lists to others, “for the solicita-

' tion through the mails, by telephone and in person, of. the

registered-owners of vehicles, for.the purchase of merchan-

dise ;” and that the result has been “considerable annoyance,

inconvenience and damage to the plaintiff and other regis-

trants by reason of the large volume of advertising and

crank mail and other solicitation to which they are sub-

jected.” Defendants’ actions and the provisions of § 202(3),

the complaint concludes, “are in violation of ‘the right of

privacy of the plaintiff and other registrants, and consti-

tutes [sic] deprivation of their liberty and property under

the First, Fourth, Fifth, Ninth and Fourteenth Amend-

ments to the United States Constitution.” o .-

In support of the view that the constitutional issue he

raises is sufficiently substantial to warrant the attention

2There is no allegation that plaintiff has demanded: exclusion of

. his namé from the list sold by the Commissioner. In response to the

court’s inquiry, the State Attorney General has taken the position

that this is immaterial in any event. With that representation, the

question is treated on the premise that such a demand by the plaintiff

‘would have been futile.

te- es pe ARE es at aed 2 ond ial ni yee naa ey 4 be a

6a _ le,

- Opinion ‘a United States District Court,

Southern District of New York

of a three-judge court, plaintiff’s able ‘counsel presents

written argument which reads in its entirety as follows:

“The substantiality of the constitutional question

raised by the complaint in this case is shown by

_the recent cases dealing with the sanctity of a man’s

* home and the privacies of life. Griswold v. Conn., .

381 U. S. 479 [85.S. Ct. 1678, 14 L. Ed. 2d 510]; —

Mapp v. Ohio, 367 U. S. 643 [81 S. Ct.°1684, 6

L. Ed. 2d 1081]; Breard v. [City of] Alexandria, |

341 U. S. 622 [71 S. Ct. 920, 95 L. Ed. 1233];

Public Utilities Comm’n v. Pollack [sic], 343 U. S.

451 [72 S. Ct. 813, 96 L. Ed. 1068]; Monroe .v. ©

Pape, 365 U. S. 167 [81 S. Ct. 473, 5 L. Ed. 2d

492]; Frank v, [State of] Maryland, 359 U. S: 360

[79 S. Ct. 804, 3 L. Ed. 2d 877]; Skinner v. [State

4 - of] Oklahoma, 316 U: S. 535 [62 S. Ct. 1110, 86 ©

L, Ed. 1655].”” |

To be sure, brevity, a somewhat rare delight in courthouses,

is not to be discouraged by equating it with “unsubstan-

tiality.” It should also be observed that counsel argued

engagingly, and at considerably greater length, in oral sup-

port of the view that expanding judicial concern for “the

" privacies ‘of life” shows enough movement in the law to

preclude dismissal of his complaint as frivolous. In the end,

however, plaintiff’s single sentence of written argument,

followed by the citation of seven cases, among which one

‘hurts him and six are inapposite, may fairly be taken as

‘the legal measure of his novel claim.

*Phainifs Memorandum of Lew, § pp. 5-6.

7a

ad

Opinion of United States District Court,

Southern District of New. York.

It would, be pedantic to linger over the many distinctions

between this case and those involving searches and seizures

(Mapp v. Ohio, supra; Monroe v. Pape, supra; cf. Frank

v. State of Maryland, supra‘), the sanctity of the marital —

relationship (Griswold v. Connecticut, supra), the power —

of States to limit solicitation (Breard v. City of Alexandria,

supra), and laws for compulsory sterilization (Skinner v.

’ State of Oklahoma, supra). The citation closest to the mark

in plaintiff’s list is Public Utilities Comm’n v. Pollak, and

that is adverse to him. There, the dispute was over govern-

mental approval of radio broadcasts, including commercial .

messages, to the captive audiences in publicly franchised

_ buses and street cars: The intrusive assault upon the privacy

and serenity. of unwilling listeners forced to use public con-

veyances was so jangling to one normally hardy “victim”

on the Supreme Court that he found himself unable to rule

dispassionately upon the constitutional issue, 343 U.S. at

466-467, 72 S. Ct. at 822-823 (Frankfurter, J.). The

Court majority pointedly recorded (p. 465, 72 S. Ct. p. 822)

its expression of “no opinion as to the desirability of radio

9

programs in public vehicles.” The Court then proceeded,

however, to reject the claim that the outraged listeners

- could invoke the right of privacy or other constitutionally

protected interests to shut out the radio broadcasts. Mr.

Justice Black dissented in ‘part on-grounds that give little ~

or no comfort to the plaintiff in this case. The dissent of

Mr. Justice Douglas, centering on the right of privacy,

distinguished “the man on the streetcar,” forced to hear

the broadcasts, from the person at home who is free to turn ©

*Overruled in Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct.

1727, 1741, 18 L. Ed. 2d 930 (1967).

8a

Opinion of United States District Court,

Southern District.of New York

off or away from an offensive. program. Id. at 469, 72.S.

Ct. 813.

_Strictly speaking, that iti’ is not noiieihs in point.

It contains important implications, however, that lead a

fortiori to the defeat of this plaintiff’s claim. There is no.

Captive quality in the plight of which plaintiff complains.

The mail box, however noxious its advertising contents

often seem to judges as well as other people, is hardly the —

kind of enclave that requires constitutional defense to pro-

tect “the privacies of life.” The short, though regular,

journey from mail box to trash can—for the contents of

which the State chooses to pay the freight when it facilitates

the distribution of trash—is an acceptable burden, at least —

so far as the Constitution is concerned. And the bells at the

door and on the telephone, though their ring is a more

imperious nuisance than the mailman’s tidings, accomplish

more peripheral assaults than the blare of an inescapable

radio.

The information sold by the Commissioner is not vital

or intimate. It is, moreover, in the category of “public rec-

ords,” available to anyone upon demand. See Vehicle and -

Traffic Law §401(2). Indeed, questions more. trouble-

some than plaintiff’s might arise if the State adopted a

policy of “privacy” or “secrecy” with respect to such in-

formation.’ What the State has done in practical effect is

to tap a small source of much-needed revenue by offering a

convenient “packaging” service. This may not be the most

5Compare the Act of July 4, 1966, 80 Stat. 250, sneniing Section

. 3 of the Administrative Procedure Act to expand the availability of

agency records and providing, inter alia, that “the burden shall be

upon the agency to ‘sustain its action” when it resists disclosure.

| Qa |

Opinion of U nited States District C ourt,

Southern District of New York

inspired kind of government function, although it may be_

i oe noted that eighteen other States appear to have adopted

| | similar practices.°. The point of importance, whatever |

eae aesthetic or. other judgments might.be prompted by this ac- ,

tivity, is that it r€flects a rational and allowable balancing

- of values by the elected representatives of the people.

In his contrary thesis, plaintiff proposes to stretch the -

constitutional dimensions of “privacy” far beyond any

reasonably foreseeable limits the courts ought to enforce. —

His claim is in an area where there is no invidious dis-

* crimination, no problem of a wrong unreachable’ at the

polls, no suggestion of an affiliction confined to a relatively

helpless minority. Cf. Reynolds v. Sims, 377 U. S. 533,

553, 84 S: Ct. 1362, 12 L. Ed. 2d 506 (1964); West

- Cal. Vehicle Code Ann. § 1811 (West Supp. 1966) ; Conn. Gen.

Stat. Rev. § 14-49 (r) (1958) ; Fla. Stat. § 319.25(5) (a), F. S.A.

(1965) ; Ill. Rev. Stat. ch. 95%, § 3-418 (1959) ; Ind. Ann. Stat.

§ 47-2625 (Burns’ Replacement 1965); Mich. Comp. Laws Ann.

ao (1967) ; Minn. Stat. Ann. § 168.33, Subd. 3 (1960) ; Mont.

_ Rev. Codes Ann. § 53-101(8) (1947); Ohio Rev: Code. Ann.

§ 4503.26 (Page 1965); Okla. Stat. Ann, tit. 47, § 22.24 (1962) ;

Pa. Stat. Ann. tit. 75, §417 (1960); S. C. Code Ann. § 46-120

(1962) ; Gen. & Special Laws of Texas, Chap. 720 § 36 of H. B. 12

(59th Legislature 1965) and Minute Order of Texas Highway Com-

_ mission pursuant thereto dated February 16, 1966; Utah e Ann.

aS §§ 41-1-60 (Supp. 1965), 41-1-61 (1953); Vt. Stat. Ann. tit. 23,

§ 109 (1959) ; Va. Code Ann. § 46.1-32 (1967); W. Va. Code Ann.

§ 1721 (140) (1961) ; Wis. Stat. Ann. § 341.17 (Supp. 1967).

‘Defendant Polk, in an undisputed compilation of statutes which

| need not be reproduced here, reports its finding of provisions in every

_. State except Kentucky making public records of vehicle. registration

information. The substantially uniform state practice is not decisive,

but it is another item of some weight against plaintiff’s constitutional -

theory. Cf. McGowan v. State of Maryland, 366 U. S. 420, 497, 81

_ §. Ct. 1153, 6 L. Ed. 2d (1961) (opinion of Mr. Justice Frankfurter ).;

_ Green v. Board of Electioris, 380 F. 2d 445 (2d Cir. 1967).

10a.

Opinion of United States District C ourt,.

' Southern District of New York

' Virginia State Board of Education v. Barnette, 319 U. S.

- 624, 638, 63 S. Ct. 1178, 87. L./ Ed 1628 (1943). ‘His

alleged injury, shared with what is probably a majority.

of the electorate, results from ja judgment by the State

which appears tobe well within its “vast leeway in the

management of its internal an Sailors v. Board of

Education, 387 U. S. 105, 109, 87 S. Ct. 1549, 1553, 18

L. Ed. 2d 650 (1967). °

’ Of course, the fact that’ a claim is sar does not in

itself brand it as unsubstantial. Cf. Joint Anti-Fascist

Refugee Committee v. McGrath, 341 U. S. 123,, 159 71

S. Ct. 624, 95 L, Ed.,817, (Frankfurter, J., concurring).

The nonmathematical task of the single judge in a case

like this is to decide onf¥ whether the contention has some

plausible chance of success, arguably sufficient to warrant

full-scale consideration in the-Supreme Court on an appeal

as of right from a three-judge district court. Perhaps

. “unsubstantiality” need not be so plain when a single judge

dismisses as it should probably be when a single judge finds

the defense of constitutionality frivolous (Bailey v. Pat-

terson, supra) and then enjoins enforcement of the state

. statute. In the latter situation, the protection of three-judge

deliberation is withheld though the case is squarely within

the primary purpose of the scheme—“that a single judge _

ought not to be empowered to invalidate a state statute

under a federal claim * * *.” Id., 369 U. S: at 33, 82 S. Ct.

at 551, 7.L. Ed. 2d 512; and see Green v. Board of Elec-

tions, supra, 380 F. 2d at 452. But where, as in this case,

a single judge finds the plaintiff’s contentions plainly un-

substantial, the normally less major consequence of error

is at most to postpone invalidation of the State’s law. And

ae | ae ‘ | lla |

| Opinion of. United S tates District C ourt,

Southern District of New York

_ that, in the circumstances of this case, is a bearable possi-

? . bility. hae ;

. For the reasons above stated, the motion to convene a

t | three-judge court is denied. The motions to dismiss the

| complaint are granted. The complaint is dismissed.

So ordered.

-

=)

“12a

: Statutes ‘eave

New York VEHICLE AND ERarFic Law, § 202(3)

‘ Fees for copies of records and documents, The fees

for copies or records and documents, other than accident

reports, shall be as follows: Written or typewritten copies,

- twenty-five cents per folio, with a minimum of one dollar.

Negative photostatic copies, fifty cents per page not ex-

ceeding ‘twenty-four square inches in area and one dollar

_ per page infall other cases. The fee fora positive photostatic

copy shall be double the. fee for’ a- negative photostatic

copy. The fee for a negative photostatic topy of an accident

‘report shall be two dollars. The fee for a positive copy of

such a* report shall. ‘be three dollars and fifty cents. If

certification of a copy Of.a record or document is required, ,

. there shall be an additional fee of fifty cénts.

The commissioner may, in ‘his discretion, contract with

the highest responsible bidder to. furnish copies of records

of all vehicle registrations for any régistration period, or

number of periods not exceeding five years in-the aggregate,

with respect to a given territory. In such everit; the fees.

provided by this section shall not apply to copies of records’

furnished under any such contract.

NEw YorxK VEHICLE AND TRAFFIC Law, § 401 (2)

2. ‘Registration record. Upon the receipt of a sufficient

application for registration of a motor vehicle or trailer,

as provided in this article, the commissioner, or the agent |

receiving it, shall register such motor vehicle or trailer and

maintain a record of the registration of such vehicle under

the distinctive number ‘assigned to such motor vehicle. or

trailer as provided i in this section, and the information in

138

Statutes I nvolved

«<

such record may be obtained upon payment of the fees.

specified in section two hundred two of this chapter.

28 U. S. C. §§ 2281, 2284 -

| § 2281. Injunction against enforcement of State Statute; ;

three-judge court required

An interlocutory or permanent injunction restraining

the enforcement, operation or execution of any State statute

by restraining the action of any officer of such State in the

enforcement or execution of such statute or of an order

made by an administrative board or commission acting

undér State statutes, shall not be granted by any district

‘court or judge thereof upon the ground of the unconstitu-

tionality of such statute unless the application therefor is

heard and determined by a district court of three judges

under section 2284 of this title. ;

§ 2284. Three-judge district court; composition ; procedure

In any action or proceeding required by Act of Congress

to be heard and determined by a district court of three

judges the composition and procedure of the court, except

as otherwise provided by law, shall be as follows:

(1): The. district judgé to whom the application for

injunction or other. relief is presented shall constitute one

member of such court. ‘On the filing of the application,

he shall immediately notify the chief judge of the circuit,

who shall designate two other judges, at least one of whom

- Shall be a circuit judge. Such judges shall serve as members

of the court to hear and determine the action or proceed-

— ing.

14a

Statutes Involved -

(2) If the action involves the enforcement, operation .

or execution of ‘State ‘statutes or State administrative

orders, at least five days notice of the hearing shall be

given to the governor and attorney general of the State.

If the action involves the enforcement, ' operation ‘or

execution of an Act of Congress or an order of any depart-

ment or agency of the United States, dt least five days’

- notice of the hearing shall be given to the Attorney General

- of the United States, to the United States attorney for the

district, and to such other persons as may be defendants.

' Such~notice shall be given by registered mail or by . .

certified mail by the clerk and shall be complete on the

mailing ese

(3). In any such case in which an applicatfonfor an_

interlocutory injunction is made, the district judge to whom

the application is made may, af any.time, grant a temporary

restraining order to prevent irreparable damage. The order,

unless previously revoked by the district judge, shall remain

in force only until the hearing and determination by the full

court. It shall.contain a specific finding, based upon evi-

dence submitted to such judge and identified by reference

thereto, that specified irreparable damage will result if the

order is not granted..: :

(4) In any such case the application shall be given prec-

edence and assigned for a hearing at the earliest practi- |

cable day. Two judges must concur in granting the ap-

plication.

(5) Any one of the three judges of the court may per-

~form all functions, conduct all proceedings except the trial,

and enter all orders required or permitted by the rules of

ote Mo AOU RII DAI CL CRAIN OIG PE OAR TER IE EGE RII OIG ER INR IT REE NS “

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15a

- Statutes Involved | ces

civil procedure. A single judge shall not appoint.a master

or order a reference, or hear and determine any application

for an interlocutory injunction or motion to vacate the

same, or. dismiss the action, or enter a summary or final

judgment.. The action of a single judge shall be review-

able by the full court at any time bef6¥e final hearing. -

A district court of three judges Shall, before’ final hear-

ing, stay any action pending therein to enjoin, suspend or

restrain the enforcement or execution of a State statute

or order thereunder, whenever it appears that a State court

of competent jurisdiction has stayed proceedings under such —

statute or order pending the determination in such State

court of an action to enforce the*same. If the action in

the State court is not prosecuted diligently and in good faith,

the district court of three judges may vacate its stay after

hearing upon ten days notice served upon - attorney gen-

eral of the State.

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18a

Petitioner’s Complaint in the District Court

UNITED STATES DISTRICT COURT

SouTHERN ‘District oF NEw York;

ay.

vv

Cortiss Lamont, on behalf of himself and all others

similarly situated,

| | Plaintiff,

—against— |

_. COMMISSIONER OF Motor VEHICLES and R. L. PotK &Co.,

: : Defendants.

a.

vw

Plaintiff for his complaint alleges:

1. Jurisdiction of the Court arises under 28 U. S. C.

— -§§ 1331, 1343(3), 2201, 2202, 2281, 2284; 42 U. i on

§ 1983, and under the Constitution of the United States

and, in particular, under the First; Fourth, Fifth, Ninth

and Fourteenth Amendments thereto.

2. The plaintiff is a resident of the City, County and

State of New York and brings this action on behalf of

himself and all other owners of motor vehicles duly regis-

_ tered under New York Vehicle and Traffic Law. § 401.

The number of owners of registered motor vehicles is so

great that it is impracticable to bring them all before this

Court ; there are questions of law and fact presented herein

. which are common to the entire class of persons registered

undef said Vehicle and Traffic Law; the plaintiff’s claim

is typical of the claims of the class; the plaintiff will fairly

and adequately protect the interests of the class. °

3. The defendant, Commissioner of Motor Vehicles

of the State of New York (herein called the “Commis-

« BE RE PRET

eoer onanfae OR PET 5 Res

ee ne ee, eee

19a :

Petitioner's C omplaint in the District Court

sioner”) is in charge of the Motor Vehicle Department

pursuant to New York Vehicle and Traffic: Law § 200.

4. Section 202(3) of said Vehicle and Traffic Law

provides that the Commissioner may

“in his discretion, contract with the highest respon-

sible bidder to furnish copies of records of all

vehicle registrations for any registration period, or

-number of periods not exceeding five years in the

aggregate, with respect to a given territory.’ In

such event, the fees provided by this section shall

not apply to copies of records enews under any

such contract.” : é

5. Defendant, R. L. Polk & Co. (herein called “Polk ”)

_is a corporation organized under the laws of the State of

Delaware, doing business in the State of New York at

551 Fifth Avenue, New York City, and duly licensed to |

_ do so. It is engaged in the business of compiling, preparing,

editing, publishing directories, reference books and so forth.

6. Plaintiff and those for whom he sues have duly

registered their motor vehicles under the said § 401 which

requires that “No motor vehicle shall be operated or driven

upon the public highways of this state without first being

registered in accordance with the provisions of this

article... .”

7. Upon information and belief, the defendant Com-

missioner has sold and delivered the current list of names

of registered owners of motor vehicles to defendant ‘Polk

pursuant to § 202(3) of the said Vehicle and Traffic Law,

and will continue to sell said list to defendant Polk or to

20a ~

Petitioner's Complaint in the District Court

the highest bidder unless ordered to cease and desist from

such sales. —

8. Upon information and belief, Polk in turn uses the

said names as a basis for the solicitation through the mails,

by. telephone and in. person, of the registered owners of

vehicles, for the purchase of merchandise ; the said solicita-

tion is done either by Polk directly or by those to whom it

sells or leases the said names of registered owners. \

\

9. The aforesaid actions of the defendants, and the

provisions of § 202(3) are in violation of the right of

privacy of the plaintiff ‘and other registrants, and consti-

‘tutes deprivation of their liberty and property under the

First, Fourth, Fifth, Ninth and Fourteenth Amendments

to the United States Constitution. |

10.. The said operation of the statute and the defend-

ants’ conduct pursuant thereto has resulted in considerable

annoyance, inconvenience and damage to the plaintiff and

other registrants by reason of the large volume of adver-

tising and crank mail and: other — to which’ they.

are subjected.

11. The plaintiff has been individually dnsvaget 3 in an

amount exceeding $10,000 .as a result of such action by

the defendants under the said statute.

a Plaintiff has suffered and continues to suffer im- .

mediate serious and irreparable injury by reason of the

operation and enforcement of said statute.

13. Plaintiff has no adequate remedy at law.

dusts inner WAT KD «Ole Ye ender ee wah .'

ORO A ete cee

2la

Petitioner's Complaint. in the- District C ourt

- Wuereror:, plaintiff prays for the following relief:

3 A. That pursuant to 28 U. S. C. §§ 2281 and 2284, a

three-judge federal district court be immediately convened

to hear and determine plaintiff’s application for preliminary

and permanent injunction.

B. That a declaratory judgment issue declaring that

§ 202(3) of the New York Vehicle and Traffic Law is null *

and void as violative of the: Constitution of the United

States. .

C. That a permanent injunction issue restraining the

enforcement and operation of § 202(3) as unconstitutional

_and restraining the defendant Commissioner from selling

the list of names of owners of motor vehicles under

§ 202(3), and restraining the defendant Polk and those in

privity with it from selling or otherwise using said list of

registered owners.

.D. That ees against defendant Polk be: entered

in the sum of $10,000, cy with the costs of this action.

. Rsicnntios & Boupin

Leonard B. Boudin ~

Attorneys for Plaintiff

30 East 42nd Street

> New York, N. Y. 10017

22a

. Opinion of Superior Court of

Hartford County, Connecticut in Chapin v. Tynan .

No. 150994- ©

tp _<

¢ : . a na

_ Norman S. CHAPIN

“U8.

_ Joun J. Tynan, CoMMISSIONER OF inti VEHICLES

OF THE STATE OF ConneEcticuz, .ET AL.

4

»™ ew

Af

Koei 25, 1968

MEMORANDUM OF DECISION

The plaintiff is duly licensed by the State of Connecticut

to operate a motor vehicle owned by him and registered

under the laws of the State of Connecticut. Prior to the

issuance of a temporary injunction obtained by the plaintiff,

. reference to which will be made hereafter, the State of

Connecticut, acting through the defendant Commissioner

- of Motor Vehicles, ( hereinafter referred to as-“the com-

‘missioner” ) furnished the’ defendant R. L. Polk and Com-

pany (hereinafter referred to as “the company”) microfilm |

copies of all new registrations and transfers of. registra-

' tions on a twice-weekly cycle and back-up magrietic tape

records of the entire alphabetic registration file on an

annual basis. The evidence clearly discloses that as a result

of the registration data furnished the company by the

commissioner, the plaintiff has received two pieces of mail

in which he had no interest from ‘third: parties to whom

the company ‘furnished the information and a third com-.

munication, likewise unwanted by the plaintiff, from a

23a ; .

Opinion of Superio*’Court of

' Hartford County, Connecticut in Chapin v. Tynan

source that directly or indirectly received the plaintiff’s

- name and address from the commissioner’s disclosure of.

the registration or license records pertaining to the name.

and address of the plaintiff. The plaintiff is required to

list his name“and address with the commissioner or face

a suspension of his license and revocation of his registration.

The State of Connecticut has received $15,000 annually

.for the furnishing of the information under a contractual

- agreement entered into by the commissioner and the com-

pany. 4

While this action is being maintained by the plaintiff

in an individual capacity (in contrast to representative),

‘the commissioner has deemed it prudent to cease furnishing

the company registration information completely although

the temporary injunction restrained further disclosure of

information relating to the plaintiff only. The plaintiff by

these proceedings seeks to make that injunction permanent.

Succinctly stated, the plaintiff’s claim is that the sale of.

this ..ormation is unauthorized under the’ statutes of this

state and that if authority is construed to be granted by

virtue of #14-49(r)°of the General Statutes, that statute .

‘permits the invasion of his privacy and thus is unconsti-

tutional, the basis of this averment being that he will suffer

_ irreparable injury by being subjected to the receipt of

' unwanted mail and commercial solicitation.

At the threshold, our inquiry must be directed to the -

question as to whether the evidence supports a basis for.

the claim that there has been a violation of the -plaintiff’s

right of privacy, that is whether he has standing to attack

the constitutionality of the statute. Coyle v. Housing

Authority, 151 Conn. 421, 424; Hardware Mutual C. seasied

YS PROUT 2 YE EOE LIEN al OE oF ON OME OEE LEI NT TIT II EY IIE EAP LONE OT RPP , bate Sil al aah as Tne a

24a

Opinion of Superior Court of °

. Hartford County, Connecticut in Chapin v. Tynan

Co. v. Premo, 153 Conn. 465, 470, 471. One who suffers

‘no injury by the operation of a statute will not be heard

to claim that it is unconstitutional. Carroll v., Socony-

Vacuum Oil Co., 136 Conn. 49, 60. | i

The plaintiff's claim that he is threatened with an.-

invasion. of -his right of privacy is of course the crux of

his complaint that he will suffer irreparable injury, which

. injury must be proven to entitle him to injunctive relief.

- Riley v. Liquor Control Commission, 153 Conn. 242, 247.

With reference to the latter, since the injunctive process

is a harsh remedy, to justify its issuance, the injury must —

be substantial, not merely technical and there must be not

only a violation of the plaintiff’s rights, but a violation that

will be attended with serious damage unless the injunction

is issued. Crouchley v. Pembianofi, 152 Conn. 224, 227.

That this state recognizes thé violation of: privacy as

affording a valid cause of action is now accepted. Horn v..

Rennison,.21 Conn. Sup. 400; Steding v. Battistoni, 3 Conn.

- Cir. 76; Carey v. Statewide Finance Co., 3 Conn. Cir. 716.

This mode of redress requires a demonstration that a person

unreasonably and seriously interfered with another’s inter-

est in not. having his affairs known to others. The defend-

ant’s conduct must be offensive to persons of ordinary sen-

sibilities, and in the determination of this, the habits of the

plaintiff with reference to publicity are considered. Restate-

ment of the Law, Torts, #867.

‘The right to privacy has been defined as “the right to be

let alone”. 4 Harvard Law Review 193, Warren and

Brandeis. Relative considerations are necessarily involved

in each case in any determination, as to the impact of the

alleged offensive conduct.. While the legal standard—that

25a .

Opinion of Superior Court of

Hartford County, Connecticut in Chapin v. Tynan

the conduct be offensive to persons of ordinary sensibili-

ties—remains constant, yet whether there has been a bruis-

ing of those sensibilities remains a question of fact, i.e.

whether the conduct ‘is offensive. Activity which a Greta

Garbo personality (with a passion for seclusion ‘and an

inordinate desire to remain incognita) would resent as an”

intrusion upon her privacy, might be welcomed by an extra-

verted, gregarious; and ambitious young starlet.

‘Prior to the institution of the instant action, during its

pendency, and practically up to the time of trial, the plaintiff

has encouraged and promoted publicity via interviews for

* television and newspapers. His posed picture has been pub-

lished in newspapers.. He had made trips to newspaper

offices and a New York television station office with his

family to publicize his cause. His modus operandi. is com-

pletely incongruous with his position that his right of privacy

—the right to be let alone—has been intruded upon. His

readiness to bask in the sun of publicity generated by his

cause celebre does not demonstrate that the receipt of three

pieces of mail advertising men’s clothing, seat covers, and |

leather goods, has been offensive to him, especially when one —

considers that as a result of the publicity promulgated by

him, he has been receiving more mail from other sources.

The information sold is not intimate, Nor is the mail re-

‘ceived offensive. The requisite proof.to support a claim of

invasion of privacy is lacking. It might be noted, paren-

thetically, that he has willingly given his name and address

to other sources available to the direct mailing industry.

The cardinal requirement in an action for an injunction .

is proof of an irreparable injury. Even assuming that the

plaintiff was offended by the receipt of this mail, “[t]here

are some . . . inconveniences and annoyances which mem- -

~

26a

Opinion of Superior Court of —

- Hartford County, Connecticut in Chapin v. Tynan

bers of society in the nature of things must absorb without

‘the right of redress”. Davis v. General Finance & Thrift —

Corp., 80 Ga. App. 708, 57 S. E. 2d 225, 227. The pace at

which our commercial world runs does not permit its in-

habitants the seminarian solitude and serenity of the-cloist-

ered cleric without interference from the bustle of mundane

life. This annoyance cannot be termed an injury.

“The mailbox, however noxious its advertising contents

seem to judges as well as other people, is hardly.the kindof

enclave, that requires constitutional defense to protect ‘the

_ privacies of life’ ”. Lamont v. Commissioner of Motor '

Vehicles, 269 F. Supp. 880, 883 (1967). These annoy-

ances are not irreparable injuries within the contemplation

of the law that can justify the issuance of ‘an injunction—a

harsh remedy—against the defendants.

While this disposes of the complaint of the plaintiff con-

cluding further consideration of his case, since the commis-

sioner has seen fit to stop completely his “packaging” serv-

ice to the company with reference to all registrants, and _ |

since this is a matter of public interest, the court deems it

necessary to pass upon the constitutional questions posed

and the claim that the commissioner’s selling of the infor-

mation is unlawful. State v: Sul, 146.Conn. 78, 83, 84.

Section 1-19 of the Connecticut General Statutes—the

_ so-called “Right-to-Know-Statute”—authorized the copy-

- ing of all records kept by an administrative agency and

-- clearly encompassed the. records kept by the motor vehicle

commissioner with reference to licenses and registrations

of motor vehicles. This statute was repealed via P. A. No.

723 of the 1967 General Assembly. The supplanting stat-

- ute repeated the rights of access ‘to public records, but. the

27a

Opinion of Superior Court of

Hartford County, Connecticut in Chapin v. Tynan

amendment excluded certain data from public revelation to

- reconcile the need of individuals for privacy in sensitive per-

sonal matters. It now excepts certain types’ of records |

including commercial or financial information from dis-

closure. ,

Section 14-10 expressly accords the public the right to

inspect records pertaining to licenses and registrations of

motor vehicles. No restriction appears therein. This statute,

of long standing, was in effect when Public Act No. 723

was passed, and the legislature did not include automobile

registration or license records in the list of records exempt

from public viewing or copying. Obviously‘the legislature

in enacting Public Act No. 723 did so with existing relevant

statutes in mind and thus evinced a desire not to exempt .

license or motor vehicle registration data. The General As-

sembly is presumed to know all existing statutes and is

- presumed to know the effect which its non-action will have

- upon any one of them. Hartley v. Vitielle, 113 Conn. 74,

82. By not including license or motor vehicle registration

data from public perusal, the legislature must have intended

that the commissioner .should continue to. allow inspection

of that information. And that right to inspect the records

carries with it the right to copy them. Direct Mail Service,

Inc. v. Registrar -of Motor Vehicles, 296 Mass. 353, 5

N. E. 2d 545, 547.

Neither is the plaintiff’s argument that the registration

data is commercial or financial information and thus specifi-

cally excluded by Public Act No. 723 meritorious. While

the information ultimately finds itself in the commercial and

financial world, through correlation with other statistics, it

is not commercial or financial information when received by

’ the commissioner.

28a

Opinion of Superior Court of

Hartford C wns, Connecticut in Chapin v. rasa

Section 14-49 (r) authorizes the commissioner to de-

termine the charge for “a complete list of the’ owners of

motor vehicles each year, and for current supplementary

lists of new registrations.” It is this section under which »

the commission effected the contract with the company. The

plaintiff contends that the authority allows a compilation of

the list of owners (emphasis added) only and not other i in-

formation, such as addresses of owners. :

- An act should be construed in a way that avoids absurd-

ity. Blanos v. Kuleava, 107 Conn. 476, 482. Furthermore,

a statute conferring a privilege or a right carries with it

by implication everything necessary to insure the realiza-

tion of that privilege or to establish that right in order to

make it effectual and complete: Beroner v. State, 144 Conn.

282, 288. It would’be utterly useless and meaningless for

the commissioner to sell and the company to buy just a list

of nanies without the address and data the company obvi-

ously needed to effect its purpose in promoting its business.

: The commissioner’s sale of the registration information

was lawful and under statutory authority. ,

The plaintiff maintains that even if this authority exists

by statitte, # 14-49 (r) is unconstitutional and permits an

invasion of his privacy. He cites several provisions under

- the Constitution of Connecticut. and the United States. His

- brief emphasizes the ninth (righits retained by people) and

’ the fourteenth amendments—the so-called due process of

law aniendment. The plaintiff’s position, even if sustained,

would not give him the protection he seeks since all this

statute purports to effect is the providing of authority to.

the commissioner to arrange a charge for providing the

names “in bulk”, as it were, rather than on an individual

29a:

‘Opinion of Superior Court of

Hartford County, Connecticut in Chapin v. Tynan

basis. That is to say, even without this statute, under: #14-

10 the commissioner could disclose the information but not -

ona “packaging” basis. However, in the interests of justice

the court will consider the proffered constietional objec-

tions with relation to both statutes.

In considering the attack on the constitutionality of

statutes, courts can assume that they were passed by the .

legislature not only to serve the best interest of the public

of this state but also to operate in a manner not violative

of individual rights. If there are any reasonable grounds

sustaining the statute’s validity, or if, there is any proper

"public purpose served by the statute, the courts may presume.

that the legislature intended them. State v. Doe, 149 Conn.

216, 231 (1962). “The legislative department is the judge, ~

within reasonable limits, to determine what public commerce

and public welfare requiré, and the wisdom of its legislature

_is not the concern of the courts. It is our duty to sustain

an act unless its invalidity is in our judgment beyond a

reasonable doubt.” State v. Bassett, 100 Conn. 430, 432,

433. The record is replete with evidence affording sufficient

grounds for the existence of the laws under which the

commissioner acted, particularly witlireference to his con-

tracting with the company. First of course is the tapping

of a source of revenue, although it may not be the most

inspired type of governmental function. Lamont v. Com-

missioner of Motor Vehicles, supra, 883. Other statistical

data compiled by this “in bulk” furnishing of names has,

as disclosed by the company’s experience, potential or actual

value in instant recall of defective vehicles potentially dan-

gerous to the public, determination of parts inventory,

publication of city directories, assistance to governmental

30a

s

Opinion of Superior C ourt of

Hartford County, Connecticut in Chapin v. Tynan

agencies and law enforcement officials. Indeed the plaintiff

concedes a segment of the public welcomes the mail which

he resents. Furthermore, this “packaging” method is more

convenient for the commissioner rather than the manual

‘ preparation of the records.

It may well be that the actual benefit to the public is -

outweighed by the inconvenience and mischief caused by

disclosure of names and addresses of registrants and that

the receipt of tons of unwanted mail from direct mailing

institutions .“‘has aroused resentment among many house-

holders who find their mailboxes and patience loaded by .

_ these commercials,” ds recently editorialized in the New

Haven Evening Register. However, courts cannot concern

themselves with the wisdom of statutory provisions, and

such complaints of the “there-ought-to-be-a-law” variety

are best addressed to the legislature rather than to the

courts. It is noted that Congress recently passed legislation

relative to prohibition of pandering advertisements in the

mails, Public Law, 90-206, 90th Congress, December 16,

1967, caves

However, no such hue and cry seems to have pervaded

the halls of our legislature. A reading of the minutes of a

legislative committee hearing on April 1, 1965 relative to

Bill No. 3604 entitled “An Act Concerning the Prohibition

of the State or State Agencies from Selling Lists of Names”

reveals complete opposition by representatives of various

interests determined to perpetuate the present system.

Nobody appeared in support of the measure, certainly

affording some justification for the legislature’s retaining

# 14-49 (r) on the statute books. When. the legislature has

enacted a statute, the terms of which are clear and precise,

oe

0’.

. Jia .-:

Opinion of Superior Court of

Hartford County, Connecticut in Chapin v. Tynan’

it is the duty of the courts to apply it without limitation,

extension, or exception. Washburn v. LaMay, 116 Conn.

576, 578. The statutes, # 14-10 and 14-49 (r) meet the —

test of constitutionality. |

To summarize: (a) The plaintiff has failed to sustain

the burden of proof that his right of privacy has been in-

vaded, (b) the plaintiff has failed to demonstrate an irrepa-

rable injury, (c) the commissioner’s action in selling

~ registration information to the defendant company is sanc-

tioned under the law, and. (d) the statutes in question

able.

Judgment may enter for the defendants. No costs will

be taxed. | we ) }

GRILLO, J.

(# # 14-10 and 14-49 (r)) are constitutionally unassail- ~*

SO Oe EO gO NONE ARLEN OTTO

set th ae