     09-0331-cv
     Molinari v. Bloomberg

 1                           UNITED STATES COURT OF APPEALS
 2                               FOR THE SECOND CIRCUIT
 3
 4                                        _______________
 5
 6                                       August Term, 2008
 7
 8   (Argued: March 27, 2009 Last Suppl. Briefs Filed: April 10, 2009 Decided: April 28, 2009)
 9
10
11                                     Docket No. 09-0331-cv
12
13                                        _______________
14
15                                         GUY MOLINARI,
16
17                                                                                      Plaintiff,
18
19     WILLAM C. THOMPSON JR., INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS THE NEW YORK
20      CITY COMPTROLLER, BETSY GOTBAUM , INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS
21     PUBLIC ADVOCATE FOR THE CITY OF NEW YORK, BILL DE BLASIO , INDIVIDUALLY AND IN HIS
22        OFFICIAL CAPACITY AS A MEMBER OF THE NEW YORK CITY COUNCIL, LETITIA JAMES,
23   INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS A MEMBER OF THE NEW YORK CITY COUNCIL,
24     CHARLES BARRON , INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE NEW
25      YORK CITY CITY COUNCIL, ROSALIE CALIENDO , PHILLIP DE PAOLO , PHILIP FOGLIA , KENT
26    LEBSOCK , ANDREA RICH , MIKE LONG , TOM LONG , SARAH LYONS, IDA SANOFF, GLORIA SMITH ,
27       ERIC SNYDER, KENNETH J. BAER, KENNETH A. DIAMONDSTONE , PETER GLEASON , MARK
28    WINSTON GRIFFITH , ARI HOFFNUNG , ALFONSO QUIROZ, YDANIS RODRIGUEZ, JO ANNE SIMON ,
29      NEW YORK PUBLIC INTEREST RESEARCH GROUP, INC., U.S. TERM LIMITS, LUVENIA SUBER,
30                      STANLEY KALATHARA , AND RESPONSIBLE NEW YORK,
31
32
33                                                                           Plaintiffs-Appellants,
34
35                                                v.
36
37    MICHAEL R. BLOOMBERG , IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF NEW YORK,
38    CHRISTINE QUINN , IN HER OFFICIAL CAPACITY AS SPEAKER OF THE NEW YORK CITY COUNCIL,
39                          NEW YORK CITY COUNCIL, CITY OF NEW YORK,
40


                                                  1
 1                                                                              Defendants-Appellees,
 2
 3    JAMES J. SAMPEL, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF COMMISSIONERS OF ELECTIONS
 4    FOR THE BOARD OF ELECTIONS IN THE CITY OF NEW YORK , AND BOARD OF ELECTIONS IN THE
 5                                       CITY OF NEW YORK,
 6
 7                                                                                         Defendants.
 8
 9                                          _______________
10
11                                           Before:
12                               STRAUB, POOLER, RAGGI, Circuit Judges.
13
14                                          _______________
15
16           On appeal from a judgment of the United States District Court for the Eastern District of
17   New York (Charles P. Sifton, Judge), granting defendants’ motion for summary judgment and
18   dismissing plaintiffs’ Amended Complaint. In October 2008, the New York City Council
19   enacted Local Law 51, which Mayor Bloomberg signed into law on November 3, 2008. Local
20   Law 51 amended previously existing term limits legislation by extending the number of eligible
21   terms from two consecutive terms to three for the Mayor, Council Members, Public Advocate,
22   Comptroller and Borough Presidents. Local Law 51 amends term limits legislation that was
23   enacted in 1993 by referendum, and will allow certain officials to run for third terms in
24   November 2009. Because we hold that Local Law 51 does not violate plaintiffs’ First
25   Amendment rights, substantive due process rights, New York State referendum law and the City
26   of New York’s conflict of interest law, we affirm.
27                                           _______________
28
29   RANDY M. MASTRO , Gibson, Dunn & Crutcher LLP, New York, NY (Norman Siegel, New York,
30   NY, on the brief), for Plaintiffs-Appellants Willam C. Thompson Jr., Betsy Gotbaum, Bill de
31   Blasio, Letitia James, Charles Barron, Rosalie Caliendo, Phillip DePaolo, Philip Foglia, Kent
32   Lebsock, Andrea Rich, Mike Long, Tom Long, Sarah Lyons, Ida Sanoff, Gloria Smith, Eric
33   Snyder, Kenneth J. Baer, Kenneth A. Diamondstone, Peter Gleason, Mark Winston Griffith, Ari
34   Hoffnung, Alfonso Quiroz, Ydanis Rodriguez, Jo Anne Simon, U.S. Term Limits, Luvenia Suber,
35   Stanley Kalathara, and Responsible New York.
36
37   (Pieter Van Tol, Andrew Behrman, Lovells LLP, New York, NY, for Plaintiff-Appellant New
38   York Public Interest Research Group, Inc.)
39
40   ALAN G. KRAMS, Assistant Corporation Counsel (Michael A. Cardozo, Corporation Counsel of
41   the City of New York, on the brief), New York, NY, for Defendants-Appellees.
42
43   Harry Kresky, New York, NY, for Lenora B. Fulani and the New York City Organizations of the


                                                     2
 1   New York Independence Party as amici curiae in support of Plaintiffs-Appellants.
 2
 3   Robert D. Joffe, Cravath, Swaine & Moore LLP, New York, NY, for the Partnership for New
 4   York City, Inc. as amicus curiae in support of Defendants-Appellees.
 5                                           _______________
 6
 7   STRAUB, Circuit Judge:

 8           Plaintiffs-Appellants appeal from the judgment of the United States District Court for the

 9   Eastern District of New York (Charles P. Sifton, Judge), granting defendants’ motion for

10   summary judgment and dismissing plaintiffs’ Amended Complaint. At issue in this litigation is

11   an amendment to the Charter of the City of New York, entitled Local Law 51, which was passed

12   by the City Council and signed into law by Mayor Michael R. Bloomberg on November 3, 2008.

13   It provides that Members of the City Council, the Mayor, Public Advocate, Comptroller and

14   Borough Presidents are eligible to serve a maximum of three consecutive terms in office. It

15   amends sections 1337 and 1338 of the City Charter, which previously provided for a maximum

16   of two consecutive terms for these officials and which were enacted by a city-wide referendum in

17   1993.

18           The individual plaintiffs include the current Comptroller and Public Advocate of New

19   York City, several current members of the New York City Council who voted against the

20   legislation at issue in this case, several individuals who are alleged to “have developed concrete

21   plans” to run for City Council seats in the November 2009 election, several individuals who are

22   alleged to have expended time and money in favor of the two public referenda on term limits

23   which are also at issue in this case, and “voters from all walks of life – and all five boroughs of

24   this great City – who . . . voted to impose term limits” in these two referenda. The plaintiffs also

25   include three organizations – New York Public Interest Research Group, Inc., U.S. Term Limits


                                                       3
 1   and Responsible New York – which were referred to by the District Court as “good-government

 2   groups.”

 3             The individual defendants are the current Mayor of New York City, the Speaker of the

 4   City Council and the current head of the New York City Board of Elections. The institutional

 5   defendants are the New York City Council, the Board of Elections and the City of New York

 6   itself.

 7             The gravamen of plaintiffs’ Amended Complaint is that defendants violated federal, State

 8   and City law by amending existing term limit legislation enacted by referendum, thereby

 9   extending themselves the opportunity to run for an additional term in office. Plaintiffs assert

10   several causes of action, including violations of the United States and New York State

11   Constitutions, the New York Municipal Home Rule Law and the City Charter’s conflict of

12   interest provisions. The District Court dismissed plaintiffs’ Amended Complaint in its entirety

13   on summary judgment.

14             On appeal, appellants advance four principal arguments. First, they argue that defendants

15   violated their First Amendment rights because City voters will now be less likely to participate in

16   the referendum process, and thus engage in less First Amendment speech, if laws enacted by

17   referenda can be amended by City Council legislation. Second, they argue that defendants

18   violated their substantive due process rights guaranteed by the Fourteenth Amendment of the

19   United States Constitution because the sole purpose of Local Law 51 is to extend defendants’

20   own political careers by entrenching incumbents. Third, they argue that defendants violated New

21   York Municipal Home Rule Law § 23(2)(b), which they contend requires a mandatory

22   referendum to enact the provisions of Local Law 51. Finally, they argue that defendants violated


                                                       4
 1   the City Charter’s conflict of interest provisions by enacting legislation conferring upon

 2   themselves a political benefit. Because we hold that the enactment of Local Law 51 did not run

 3   afoul of any of these provisions, we affirm the District Court’s judgment.

 4                                            BACKGROUND

 5   I.      New York State’s Referendum Scheme

 6           As a general matter, this case touches upon the City Council’s and Mayor’s authority to

 7   enact local laws amending the City Charter. Cities in the State of New York are given broad

 8   power to enact local laws, including those amending a city charter, as long as they “relat[e] to its

 9   property, affairs or government” and are “not inconsistent with the provisions of th[e] [state]

10   constitution or any general law.” N.Y. CONST ., ART . IX, § 2; see also N.Y. MUN . HOME RULE

11   LAW § 10(1)(i)-(ii). This includes local laws relating to “[t]he powers, duties, qualifications,

12   number, mode of selection and removal, terms of office, compensation, hours of work,

13   protection, welfare and safety of its officers and employees.” N.Y. MUN . HOME RULE LAW §

14   10(1)(ii).

15           A city may enact such laws by a majority vote of its legislative body and the approval of

16   its mayor, and, in the case of a mayor’s veto, the legislative body may override the mayor’s veto

17   with a two-thirds vote. See id. §§ 20-21.1 Moreover, sections 36 and 37 of the New York

18   Municipal Home Rule Law allow voters to enact such laws directly by means of a referendum.

19   See id. at §§ 36, 37. Such a referendum may be initiated directly by voters through a process



             1
               There is one exception at issue here, which will be discussed in Part III of this Opinion,
     namely, New York Municipal Home Rule Law § 23, which sets forth certain types of local laws
     that are “subject to mandatory referendum,” N.Y. MUN . HOME RULE LAW § 23, including those
     that “change[] the membership . . . of the legislative body,” see id. § 23(2)(b).

                                                       5
 1   commonly referred to as a voter initiative. See id. § 37. Generally, if qualified voters file with

 2   the City Clerk a petition containing a certain number of signatures requesting that a proposed

 3   local law amending the City Charter be put to referendum, the proposed local law will appear on

 4   the ballot at the next general election. See id. A referendum proposing a local law amending the

 5   City Charter may also be initiated by a charter commission. See id. § 36. A charter commission

 6   may be created by a voters’ petition, the City Council or the Mayor. See id. § 36(2)-(4).

 7          Notwithstanding these provisions, the New York Court of Appeals has made clear that

 8   “[d]irect legislation in cities must always rest on some constitutional or statutory grant of power.

 9   Government by representation is still the rule. Direct action by the people is the exception.”

10   McCabe v. Voorhis, 243 N.Y. 401, 413 (1926).

11   II.    1993 Voter Initiative and 1996 Referendum

12          In November 1993, City voters put a referendum on the ballot by voter initiative

13   proposing term limits for certain elected City officials, which was ultimately adopted by a vote of

14   more than 59%. It provided:

15                                             CHAPTER 50
16                                             TERM LIMITS
17
18                          § 1137. Public Policy. It is hereby declared to be the public
19                  policy of the city of New York to limit to not more than eight
20                  consecutive years the time elected officials can serve as mayor,
21                  public advocate, comptroller, borough president and council
22                  member so that elected representatives are “citizen representatives”
23                  who are responsive to the needs of the people and are not career
24                  politicians.
25
26                          § 1138. Term Limits. Notwithstanding any provision to the
27                  contrary contained in this charter, no person shall be eligible to be
28                  elected to or serve in the office of mayor, public advocate,
29                  comptroller, borough president or council member if that person


                                                      6
 1                  had previously held such office for two or more full consecutive
 2                  terms (including in the case of council member at least one
 3                  four-year term), unless one full term or more has elapsed since that
 4                  person last held such office; provided, however, that in calculating
 5                  the number of consecutive terms a person has served, only terms
 6                  commencing on or after January 1, 1994 shall be counted.
 7
 8   N.Y. City Charter §§ 1137-38 (N.Y. Legal Publ’g Corp. 2001) (repealed Nov. 3, 2008)

 9   (hereinafter, the “1993 Voter Initiative”).

10          In 1996, the City Council put a referendum on the ballot seeking to increase the term

11   limits applicable to Council Members from two to three consecutive terms (“1996 Referendum”).

12   City voters rejected the 1996 Referendum by a margin of approximately 54% to 46%.

13   III.   2008 Term Limits Amendment

14          More than a decade later, on October 2, 2008, Mayor Bloomberg announced that he

15   intended to work with the Speaker of the City Council, Christine C. Quinn, to introduce

16   legislation to extend the City’s term limits set forth in sections 1137 and 1138 of the City Charter

17   from two consecutive terms to three and then seek re-election. The Mayor emphasized that the

18   change in law would allow voters to elect experienced leadership in a time of unprecedented

19   fiscal crisis. Thus, on October 7, 2008, City Council Members, at the Mayor’s request,

20   introduced bill No. 845-A, which, if signed into law, would amend sections 1137 and 1138 of the

21   City Charter to change the term limits from no more than two consecutive terms to no more than

22   three such terms.

23          Plaintiffs claim that the Mayor was aware of his intentions to ask the City Council to pass

24   legislation extending term limits as early as 2007,2 but delayed his announcement until October


            2
             Plaintiffs point to a New York Times article, which reports that the Mayor’s “unofficial
     emissaries” “began approaching” term-limits proponent and “[b]illionaire” Ronald Lauder two

                                                      7
 1   2008 so that voters could not put the issue of term limits on the ballot through a voter initiative

 2   prior to the November 2009 election. Under section 37 of New York Municipal Home Rule

 3   Law, if qualified voters were to have filed a petition following the introduction of the bill in

 4   October 2008 putting the term limits issue to a referendum, it would appear on the November

 5   2009 election ballot at the earliest. See N.Y. MUN . HOME RULE LAW § 37(6)-(7). Even if

 6   successful, such a voter initiative would not affect those made eligible for reelection in

 7   November 2009 as a result of the Mayor’s proposed amendment.

 8           In addition, plaintiffs emphasize the reported discussions between the Mayor and Ronald

 9   Lauder. Specifically, The New York Times reported that Mr. Lauder initially vowed to

10   “vigorously oppose” the plan outlined by Mayor Bloomberg, but he “backed down” after the

11   Mayor promised him a seat on a charter commission that the Mayor agreed to convene in 2010 to

12   put the term limits issue back on the ballot for referendum. Michael Barbaro & Kareem Fahim,

13   Lauder Opposes Mayor on Permanent Change to Term Limits, N.Y. TIMES, Oct. 6, 2008, at A21

14   (available at J.A. 353-54). Plaintiffs claim that this agreement is reflected in the following

15   provision of the bill:

16                           This local law shall take effect immediately and shall apply
17                   to elections held on or after the date of its enactment, provided that
18                   this local law shall be deemed repealed upon the effective date of a
19                   lawful and valid proposal to amend the charter to set term limits at
20                   two, rather than three, full consecutive terms, as such terms were in


     years ago “to persuade him not to fight a one-time extension of term limits.” Sam Roberts &
     Eric Konigsberg, Enigmatic Billionaire Is Drawn Back to the Term Limits Fray, N.Y. TIMES,
     Oct. 9, 2008, at A1 (available at J.A. 281-83). They also cite a New York Post report indicating
     that the Mayor’s staff conducted polling no later than the beginning of June 2008 to explore
     whether voters would support a change to the City’s term limits, which showed “little sentiment”
     among voters for such a change. David Seifman, Mike’s Poll Sizing Up “3rd Term”, N.Y. POST ,
     June 4, 2008, at 11 (available at J.A. 790).

                                                       8
 1                  force and effect prior to the enactment of this local law, where such
 2                  proposal has been submitted for the approval of the qualified
 3                  electors of the city and approved by a majority of such electors
 4                  voting thereon.
 5
 6   See S.A. 67-68. Plaintiffs argue that “[t]his alteration of the Term-Limits Bill made clear that the

 7   Bill’s true purpose was to afford a third term in office to currently term-limited City officials

 8   only; afterward, the voters would decide the term limits applicable to subsequent generations of

 9   City officials.” See Brief for Plaintiffs-Appellants William C. Thompson, Jr., et al. (“Brief for

10   Appellants”) at 11. Plaintiffs invoke a New York Times blog post reporting that Mr. Lauder

11   stated, “‘I believe very strongly that the mayor should get the extra term and the City Council

12   should get a third term. That is part of the deal. But I never spoke about the first-term council

13   members.’”3 Michael Barbaro, Lauder Puts New Hurdle in Mayor’s Path, N.Y. TIMES CITY

14   ROOM , Oct. 21, 2008,

15   http://cityroom.blogs.nytimes.com/2008/10/21/lauder-puts-a-new-hurdle-in-mayors-path/

16   (available at J.A. 360-61).

17          When the bill was introduced into the City Council, Public Advocate Betsy Gotbaum and

18   City Council Members Bill de Blasio and Letitia James, who are plaintiffs and appellants in this

19   action, requested the City’s Conflicts of Interest Board to issue an advisory opinion as to whether



            3
               Plaintiffs make many allegations about the proposed apostasy of Ronald Lauder’s
     support for Local Law 51 in light of his former support for term limits in New York City, which
     took the form of large cash contributions to the pro-term limits position in the 1993 and 1996
     referenda. Mr. Lauder is said to have “struck a deal” with Mayor Bloomberg pursuant to which
     he changed his position in return for the Mayor’s promise to name him to the city commission
     which would seek to place the term limits issue on the ballot in 2010. But we think it important
     to note that Mr. Lauder is a private citizen who is free to change his political positions as he
     wishes. There is no allegation that he performed any illegal act and he is not a party to this
     action.

                                                       9
 1   Council Members would violate the City Charter’s conflict of interest provisions by voting on

 2   the bill. The Board ruled that no violation would occur. It reasoned that the conflict of interest

 3   provisions prohibit Members from voting on proposed legislation that would confer a personal

 4   benefit, but that an extension of term limits was a public benefit relating to their roles as public

 5   officials.

 6           Council Members de Blasio and James subsequently filed a petition in New York State

 7   Supreme Court, New York County (Jacqueline W. Silbermann, Justice), seeking a temporary

 8   restraining order enjoining Council Members from voting on the bill on the ground that it would

 9   violate the City Charter’s conflict of interest provisions. The court denied the petition, holding

10   that no irreparable harm would occur to petitioners because they could, inter alia, abstain from

11   voting on the bill and that “granting the TRO would be an undue interference by one branch of

12   government with another at this stage of the legislative process, and, thus, the matter is not now

13   justiciable.” DeBlasio v. Conflicts of Interest Board of the City of New York, No. 1141289/08

14   (N.Y. Sup. Ct. Oct. 22, 2008) (TRO Hearing).

15           On October 23, 2008, the City Council voted 29 to 22 to enact Local Law 51, amending

16   the City’s term limits law to three consecutive terms. Of the fifty-one sitting Members who

17   voted on the Bill, thirty-five would have been prohibited from running for reelection under the

18   term limits enacted in 1993. Of those thirty-five Members, twenty-three voted to enact Local

19   Law 51.

20           Mayor Bloomberg signed the bill into law on November 3, 2008. Local Law 51 provides,

21   in relevant part:

22                          § 1137. Public policy. It is hereby declared to be the


                                                       10
 1                  public policy of the city of New York to limit the time elected
 2                  officials can serve as mayor, public advocate, comptroller, borough
 3                  president and council member so that elected representatives are
 4                  “citizen representatives” who are responsive to the needs of the
 5                  people and are not career politicians. It is further declared that this
 6                  policy is most appropriately served by limiting the time such
 7                  officials can serve to not more than three full consecutive terms.
 8
 9                          § 1138. Term limits. Notwithstanding any provision to the
10                  contrary contained in this charter, no person shall be eligible to be
11                  elected to or serve in the office of mayor, public advocate,
12                  comptroller, borough president or council member if that person
13                  had previously held such office for three or more full consecutive
14                  terms, unless one full term or more has elapsed since that person
15                  last held such office; provided, however, that in calculating the
16                  number of consecutive terms a person has served, only terms
17                  commencing on or after January 1, 1994 shall be counted.
18
19   Local Law No. 51 (Nov. 3, 2008). Immediately prior to signing the bill, Mayor Bloomberg

20   expressed his commitment to convene a charter commission in 2010 to put the term limits issue

21   back on the ballot for referendum.

22   IV.    This Litigation

23          Plaintiffs commenced this action on November 10, 2008 and filed an Amended

24   Complaint on November 17, 2008. Their Amended Complaint alleges that defendants violated:

25   (1) plaintiffs’ First Amendment rights by amending the 1993 Voter Initiative through City

26   Council legislation, thereby discouraging voters from participating in the referendum process in

27   the future; (2) plaintiffs’ substantive due process rights guaranteed by the Fourteenth Amendment

28   by passing legislation with the sole purpose of extending their own political careers and

29   entrenching incumbents; (3) State and City law mandating a referendum to enact legislation

30   regarding term limits; and (4) the City Charter’s conflict of interest provisions by enacting

31   legislation that enabled certain Members of the City Council and the Mayor to run for reelection


                                                      11
 1   and retain positions of seniority, thus conferring personal benefits at public expense.4

 2          On December 12, 2008, defendants moved to dismiss the Amended Complaint and the

 3   parties cross-moved for summary judgment. On January 5, 2009, the District Court heard oral

 4   argument. On January 13, 2009, the District Court denied plaintiffs’ motion for summary

 5   judgment and granted summary judgment to defendants, entering judgment shortly thereafter.

 6   On January 22, 2009, appellants timely filed a notice of appeal from the District Court’s

 7   Memorandum and Order.5

 8                                             DISCUSSION

 9          “We review an award of summary judgment de novo, and we will uphold the judgment

10   only if the evidence, viewed in the light most favorable to the party against whom it is entered,

11   demonstrates that there are no genuine issues of material fact and that the judgment was


            4
               Plaintiffs also asserted claims under the provision of the New York State Constitution
     that is analogous to the First Amendment. The District Court held that these claims failed for the
     same reasons that plaintiffs’ First Amendment claims were subject to summary judgment.
     Although appellants do not appear to have made a direct statement that they have abandoned
     their state constitutional claims on this appeal, we agree with the appellees that they have in fact
     done so. The argument will therefore be treated by this Court as having been waived.
            5
               On January 16, 2009, the City filed its request for administrative pre-clearance pursuant
     to section 5 of the Voting Rights Act with the Department of Justice (“DOJ”). See 42 U.S.C. §
     1973c; 28 C.F.R. § 51.1 et seq. On March 17, 2009, the DOJ issued its pre-clearance letter,
     stating that it “does not interpose any objection to the specified changes [in Local Law 51,]” but
     its failure to object “does not bar subsequent litigation to enjoin the enforcement of the changes.”
     Because the District Court’s judgment was entered prior to the DOJ’s pre-clearance letter, it was
     without jurisdiction to do so. See, e.g., McDaniel v. Sanchez, 452 U.S. 130, 153 (1981); see also
     Branch v. Smith, 538 U.S. 254, 283-84 (2003) (Kennedy, J., plurality concurring opinion) (“To
     be consistent with the statutory scheme, the district courts should not entertain constitutional
     challenges to nonprecleared voting changes and in this way anticipate a ruling not yet made by
     the Executive.”). Accordingly, we remanded to the District Court on March 30, 2009 for it to
     affirm in full its prior judgment, which it did on April 7, 2009. The parties subsequently filed
     supplemental briefs on April 8, 2009, indicating that they reassert their identical pleadings and
     arguments previously filed in this appeal. This action is, therefore, ripe for our review.

                                                      12
 1   warranted as a matter of law.” Barfield v. N.Y. City Health & Hosp. Corp., 537 F.3d 132, 140

 2   (2d Cir. 2008) (citing Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

 3   (1986); Rubens v. Mason, 527 F.3d 252, 254 (2d Cir. 2008)).

 4   I.     The First Amendment

 5          In their Amended Complaint, plaintiffs allege that defendants violated their First

 6   Amendment rights by enacting Local Law 51. They claim that they as well as other voters in the

 7   City will be less likely to participate in the referendum process in the future, and thus engage in

 8   less First Amendment speech, if laws enacted by referenda can be amended or repealed by City

 9   Council legislation. Applying the First Amendment balancing test first set forth in Anderson v.

10   Celebrezze, 460 U.S. 780 (1983), the District Court dismissed plaintiffs’ claim. See Molinari v.

11   Bloomberg, 596 F. Supp. 2d 546, 565-67 (E.D.N.Y. 2009). It held, “On balance, no rational fact

12   finder could conclude that the claimed interference with plaintiffs’ [First Amendment] rights

13   outweighs the right of the City Council to let people choose the best candidates to deal with the

14   current economic situation.” Id. at 567.

15          Here, appellants claim that the District Court used the correct analytical framework but

16   misapplied it. They emphasize that the record contains evidence showing that those who

17   participated in the 1993 and 1996 referenda process have no intention of doing so in the future if

18   the law ultimately enacted and maintained thereby can simply be amended by City Council

19   legislation. In essence, they argue that Local Law 51 “decreases [their speech’s] effectiveness”

20   and, as a result, their speech is chilled. See Brief for Appellants at 22. They contend, moreover,

21   that the “timing [of Local Law 51] exacerbated these already-significant burdens by directly

22   frustrating the timely exercise of New York City voters’ acknowledged right to put the term


                                                      13
 1   limits issue to a third citywide vote prior to this November’s election.” See id. at 25. They allege

 2   that the sole purpose of Local Law 51 was to “entrench” incumbents and, as such, their First

 3   Amendment interests outweigh the interests of the City. See id. at 26-31. Appellees, for their

 4   part, claim that the objective of Local Law 51 was to provide the City’s citizens the opportunity

 5   to vote for experienced public officials in a time of financial crisis. Appellants contend,

 6   however, that Local Law 51 was not necessary to achieve this objective because the Mayor or the

 7   City Council could have timely put the issue of term limits to a referendum prior to the

 8   November 2009 election.6 See generally N.Y. MUN . HOME RULE LAW § 36.

 9          We agree, however, with appellees’ further argument that Local Law 51 does not

10   implicate plaintiffs’ First Amendment rights and, therefore, we need not decide whether the

11   District Court erred in determining that the City’s interests outweighed plaintiffs’ First

12   Amendment interests. No balancing is necessary because plaintiffs do not have a viable First

13   Amendment claim in the first place.

14          A.      Plaintiffs Have Not Identified a Burden on Their First Amendment Rights

15          The logical starting point is to identify precisely what plaintiffs are claiming it is that

16   violates their First Amendment right to free speech. There is no doubt that New York law

17   permits the City Council to amend a law previously enacted by referendum, as the New York

18   Court of Appeals has so held. See Caruso v. City of N.Y., 517 N.Y.S.2d 897 (Sup. Ct. 1987)

19   (Blyn, J.), aff’d on op. of Blyn, J., 533 N.Y.S.2d 379 (App. Div. 1st Dep’t 1988), aff’d on op. of



            6
               The Mayor and the City Council each has authority to create a charter commission,
     which could theoretically put an issue on the ballot for referendum at a special election as early
     as sixty days after the proposed legislation is filed with the city clerk. See N.Y. MUN . HOME
     RULE LAW § 36(2), (4), (5)(b).

                                                      14
 1   Blyn, J., 547 N.E.2d 92 (N.Y. 1989), cert. denied, 493 U.S. 1077 (1990). By adopting the lower

 2   court’s opinion, the New York Court of Appeals stated:

 3                   [T]he laws proposed and enacted by the people under an initiative
 4                   provision are subject to the same constitutional, statutory and
 5                   charter limitations as those passed by the Legislature and are
 6                   entitled to no greater sanctity or dignity. Inasmuch as a legislative
 7                   body may modify or abolish its predecessor’s acts subject only to
 8                   its own discretion, it likewise should be able, in the absence of an
 9                   express regulation or restriction, to amend or repeal an enactment
10                   by the electorate, its co-ordinate unit, and vice versa.
11
12   Id. at 900 (internal citations omitted).7

13           Although we are clearly bound to follow Caruso as a matter of New York State law, see

14   Van Buskirk v. N.Y. Times Co., 325 F.3d 87, 89 (2d Cir. 2003), plaintiffs, at bottom, contend that

15   this scheme violates the First Amendment because it discourages citizens from participating in

16   the referendum process.

17           The First Amendment provides that “Congress shall make no law . . . abridging the

18   freedom of speech, or of the press; or the right of people peaceably to assemble, and to petition

19   the Government for a redress of grievances.” U.S. CONST ., amend I. The Fourteenth

20   Amendment makes that prohibition applicable to the State and City of New York. See Thornhill


             7
               Appellants appear to argue in a footnote that Caruso is distinguishable because it did
     not address “whether that power allows a wholly self-interested legislature to completely
     eviscerate a referendum that was explicitly intended to constrain that body’s own power.” See
     Brief for Appellants at 48-49 n.15. This is simply a recast of plaintiffs’ conflict of interest
     argument, which we address infra, Part IV. Appellants also appear to argue that Caruso is
     inapposite because the term limits law enacted by the 1993 Voter Initiative expressly stated that
     it was the “public policy” of New York City not to permit an elected official to serve more than
     eight consecutive years. We fail to see how Caruso is limited to those laws that do not affect the
     City’s “public policy.” It is clear that that the New York Court of Appeals did not intend to limit
     the import of Caruso in this respect: the issue presented was “whether the Council may amend
     or repeal a local law enacted by voter initiative.” See Caruso, 517 N.Y.S.2d at 899. This
     question was answered in the affirmative. See id. at 899-901.

                                                      15
 1   v. Alabama, 310 U.S. 88, 95 (1940). It is axiomatic that “[t]he First Amendment ‘was fashioned

 2   to assure unfettered interchange of ideas for the bringing about of political and social changes

 3   desired by the people.’” Meyer v. Grant, 486 U.S. 414, 421 (1988) (quoting Roth v. United

 4   States, 354 U.S. 476, 484 (1957)).

 5          Although it is self-evident that the referendum can serve “[a]s a basic instrument of

 6   democratic government,” City of Eastlake v. Forest City Enters., Inc., 426 U.S. 668, 679 (1976),

 7   the right to pass legislation through a referendum is a state-created right not guaranteed by the

 8   U.S. Constitution, see Save Palisade FruitLands v. Todd, 279 F.3d 1204, 1210-11 (10th Cir.)

 9   (“[N]othing in the language of the Constitution commands direct democracy, and [the court is]

10   aware of no [contrary] authority.”), cert. denied, 537 U.S. 814 (2002). See also Marijuana

11   Policy Project v. United States, 304 F.3d 82, 85 (D.C. Cir. 2002); Stone v. City of Prescott, 173

12   F.3d 1172, 1174-76 (9th Cir.), cert. denied, 528 U.S. 870 (1999); Taxpayers United for

13   Assessment Cuts v. Austin, 994 F.2d 291, 295 (6th Cir. 1993) (“[T]he Constitution does not

14   require a state to create an initiative procedure.”); Pony Lake Sch. Dist. 30 v. State Comm. for

15   Reorganization of Sch. Dists., 710 N.W.2d 609, 623 (Neb.) (“Because the rights of initiative or

16   referendum are a means of direct democracy, federal courts have concluded that the partial

17   reservation or total absence of the right of initiative or referendum in a state constitution does not

18   violate a fundamental right to vote.”), cert. denied, 547 U.S. 1130 (2006); cf. Hunter v. Erickson,

19   393 U.S. 385, 392 (1969) (implying the same); Meyer, 486 U.S. at 421-25 (same).

20          Nonetheless, as the Supreme Court has recognized, if a state chooses to confer the right of

21   referendum to its citizens, it is “obligated to do so in a manner consistent with the Constitution.”

22   Meyer, 486 U.S. at 420; Taxpayers United for Assessment Cuts, 994 F.2d at 295 (“[W]e conclude


                                                      16
 1   that although the Constitution does not require a state to create an initiative procedure, if it

 2   creates such a procedure, the state cannot place restrictions on its use that violate the federal

 3   Constitution.”). Thus, courts have decided whether particular regulations of voter initiative or

 4   referendum schemes have run afoul of the U.S. Constitution. See, e.g., Cipriano v. City of

 5   Houma, 395 U.S. 701 (1969) (holding unconstitutional under the Equal Protection Clause the

 6   restriction of the right to vote in a revenue bond referendum to only those who pay property

 7   taxes); Wirzburger v. Galvin, 412 F.3d 271 (1st Cir. 2005) (rejecting a Free Exercise challenge to

 8   provisions of the Massachusetts Constitution prohibiting voter initiatives to amend the state

 9   constitution to allow public financial support of private, religiously affiliated schools), cert.

10   denied, 546 U.S. 1150 (2006).

11           The Supreme Court, in Meyer v. Grant and Buckley v. American Constitutional Law

12   Foundation, Inc., 525 U.S. 182 (1999), addressed the First Amendment restrictions on such

13   governmental regulation of voter initiatives. In Meyer, the Supreme Court held that Colorado’s

14   prohibition against paying circulators of voter initiative petitions violated the First Amendment.

15   See 486 U.S. at 415-16, 422-23. The Court made clear “that the power to ban initiatives entirely”

16   does not allow a state “to limit discussion of political issues raised in initiative petitions.” Id. at

17   425. The Court explained:

18                           The circulation of an initiative petition of necessity
19                   involves both the expression of a desire for political change and a
20                   discussion of the merits of the proposed change. Although a
21                   petition circulator may not have to persuade potential signatories
22                   that a particular proposal should prevail to capture their signatures,
23                   he or she will at least have to persuade them that the matter is one
24                   deserving of the public scrutiny and debate that would attend its
25                   consideration by the whole electorate. This will in almost every
26                   case involve an explanation of the nature of the proposal and why


                                                        17
 1                   its advocates support it. Thus, the circulation of a petition involves
 2                   the type of interactive communication concerning political change
 3                   that is appropriately described as “core political speech.”
 4
 5   Id. 421-22 (internal footnote omitted).

 6           The Court went on to say that the refusal to permit the plaintiffs to pay petition circulators

 7   restricted protected speech in two ways:

 8                   First, it limits the number of voices who will convey appellees’
 9                   message and the hours they can speak and, therefore, limits the size
10                   of the audience they can reach. Second, it makes it less likely that
11                   appellees will garner the number of signatures necessary to place
12                   the matter on the ballot, thus limiting their ability to make the
13                   matter the focus of statewide discussion.
14
15   Id. at 422-23 (internal footnote omitted). The Court rejected “the State’s arguments that the

16   prohibition is justified by its interest in making sure that an initiative has sufficient grass roots

17   support to be placed on the ballot, or by its interest in protecting the integrity of the initiative

18   process.”8 Id. at 425. The Court concluded, therefore, that the State failed to justify the burden

19   on political expression and held the law unconstitutional. See id. at 428.

20           In Buckley, the Supreme Court held unconstitutional under the First Amendment each of

21   the following three conditions that Colorado placed on the ballot-initiative process: “(1) the

22   requirement that initiative-petition circulators be registered voters; (2) the requirement that they

23   wear an identification badge bearing the[ir] . . . name; and (3) the requirement that proponents of

24   an initiative report the names and addresses of all paid circulators and the amount paid to each


             8
              As to the former, the Court concluded that it was “adequately protected by the
     requirement that no initiative proposal may be placed on the ballot unless the required number of
     signatures has been obtained.” Meyer, 486 U.S. at 425-26. As to the latter, the Court explored
     the various other “provisions of the Colorado statute” that “deal expressly with the potential
     danger that circulators might be tempted to pad their petitions with false signatures” and found
     them to be sufficient to achieve the State’s objective. Id. at 427.

                                                        18
 1   circulator.” 525 U.S. at 186 (citations omitted). The Supreme Court concluded that all three of

 2   Colorado’s requirements drastically reduced the number of persons, both volunteer and paid,

 3   available to circulate petitions. Id. at 193-205. It went on to conclude that the State’s dominant

 4   justification – to police lawbreakers among petition circulators – was “served by the requirement

 5   . . . that each circulator submit an affidavit setting out, among several particulars, the ‘address at

 6   which he or she resides, including the street name and number, the city or town, and the county.’”

 7   Id. at 196 (brackets omitted). It held, therefore, that the requirements were unconstitutional, as

 8   they “cut[] down the number of message carriers in the ballot-access arena without impelling

 9   cause.” Id. at 197.

10          Both Meyer and Buckley “involved an unconstitutional regulation of speech that

11   happened to occur in the context of an . . . initiative scheme.” Save Palisade FruitLands, 279

12   F.3d at 1212. The challenged laws “specifically regulated the process of advocacy itself: the

13   laws dictated who could speak (only volunteer circulators and registered voters) or how to go

14   about speaking (with name badges and subsequent reports).” Initiative & Referendum Inst. v.

15   Walker, 450 F.3d 1082, 1099 (10th Cir. 2006) (en banc), cert. denied, 549 U.S. 1245 (2007).

16   Together, Meyer and Buckley make clear that the First Amendment protects political speech from

17   undue government interference in the context of referendum petitioning.

18          However, Meyer and Buckley do not guarantee a right to legislate by referendum, much

19   less a right protecting a law enacted by referendum from amendment or repeal by a legislative

20   body. As explained by the Tenth Circuit en banc:

21                         Although the First Amendment protects political speech
22                  incident to an initiative campaign, it does not protect the right to
23                  make law, by initiative or otherwise. . . . The distinction is


                                                       19
 1                   between laws that regulate or restrict the communicative conduct
 2                   of persons advocating a position in a referendum, which warrant
 3                   strict scrutiny, and laws that determine the process by which
 4                   legislation is enacted, which do not.
 5
 6   Id. at 1099-1100 (citation omitted); see also Biddulph v. Mortham, 89 F.3d 1491, 1498 n.7 (11th

 7   Cir. 1996) (explaining that in Meyer, “the Court established an explicit distinction between a

 8   state’s power to regulate the initiative process in general and the power to regulate the exchange

 9   of ideas about political changes sought through the process. The Court only addressed the

10   constitutionality of the latter.”).

11           Here, plaintiffs are not in any way restricted from engaging in First Amendment activity

12   as the referenda proponents were in Meyer and Buckley. In fact, plaintiffs emphasize that they

13   were free to exercise their First Amendment rights in connection with the 1993 and 1996

14   referenda in an attempt to highlight the time and cost they expended on those efforts. Plaintiffs

15   remain free to do so in connection with referenda or otherwise now and in the future. Plaintiffs’

16   claim is simply that their First Amendment rights are violated by Local Law 51 because City

17   voters will be less likely in the future to engage in the referendum process if a law enacted by that

18   process can be amended or repealed through City Council legislation.9 This claim implicates no

19   First Amendment right. Cf. Smith v. Ark. State Highway Employees, 441 U.S. 463, 464-65

20   (1979) (per curiam) (“The First Amendment right to associate and to advocate ‘provides no

21   guarantee that a speech will persuade or that advocacy will be effective.’”) (quoting Hanover

22   Township Fed’n of Teachers v. Hanover Cmty. Sch. Corp., 457 F.2d 456, 461 (7th Cir. 1972));


             9
             It would be remiss not to mention the fact that the 1993 Voter Initiative imposed the
     previous term limits on elected officials in New York City for over fifteen years – even
     withstanding the 1996 Referendum – thereby underscoring the significant effect that City voters
     have had on the electoral process.

                                                      20
 1   Ukrainian-Am. Bar Ass’n, Inc. v. Baker, 893 F.2d 1374, 1379 (D.C. Cir. 1990) (“The right to

 2   speak protected by the first amendment is not, however, a right to be heeded.”). At bottom,

 3   “there is a crucial difference between a law that has the ‘inevitable effect’ of reducing speech

 4   because it restricts or regulates speech, [as in Meyer and Buckley,] and a law that has the

 5   ‘inevitable effect’ of reducing speech because it makes particular speech less likely to succeed.”

 6   Initiative & Referendum Inst., 450 F.3d at 1100. The former implicates the First Amendment and

 7   the latter does not. See generally id.

 8          We find instructive the Tenth Circuit’s en banc decision in Initiative & Referendum Inst.

 9   It addressed whether an amendment to the Utah Constitution authorizing referenda violated the

10   First Amendment by singling out initiatives regarding wildlife management by requiring a super-

11   majority for their adoption. See id. at 1086. The plaintiffs, including six wildlife and animal

12   advocacy groups, argued that by raising the bar for wildlife initiatives, this provision imposed a

13   “chilling effect” on the exercise of their First Amendment rights because it made it more difficult

14   to pass such initiatives. See id. The Tenth Circuit rejected their argument, writing:

15                           Under the Plaintiffs’ theory, every structural feature of
16                  government that makes some political outcomes less likely than
17                  others – and thereby discourages some speakers from engaging in
18                  protected speech – violates the First Amendment. Constitutions
19                  and rules of procedure routinely make legislation, and thus
20                  advocacy, on certain subjects more difficult by requiring a
21                  supermajority vote to enact bills on certain subjects. . . . [citing
22                  examples] These provisions presumably have the “inevitable
23                  effect” of reducing the total “quantum of speech” by discouraging
24                  advocates of nuclear power plants, general banking laws, or
25                  unauthorized state flags from bothering to seek legislation or
26                  initiatives embodying their views. Yet if it violates the First
27                  Amendment to remove certain issues from the vicissitudes of
28                  ordinary democratic politics, constitutions themselves are
29                  unconstitutional. Indeed, the Plaintiffs’ theory would have the


                                                      21
 1                   ironic effect of rendering the relief they seek in this litigation
 2                   unconstitutional under the First Amendment: if it is
 3                   unconstitutional to amend the Utah constitution to require a
 4                   supermajority to approve a wildlife initiative, those who favor such
 5                   an amendment would be less likely to engage in advocacy in its
 6                   favor.
 7
 8                            No doubt the Plaintiffs are sincere in their many sworn
 9                   statements that they find the heightened threshold for wildlife
10                   initiatives dispiriting, and feel “marginalized” or “silenced” in the
11                   wake of Proposition 5. Their constitutional claim begins, however,
12                   from a basic misunderstanding. The First Amendment ensures that
13                   all points of view may be heard; it does not ensure that all points of
14                   view are equally likely to prevail.
15
16   Id. at 1100-01 (internal citations omitted).

17           We believe that the Tenth Circuit’s analysis is sound and equally applicable here. That is,

18   while the plaintiffs in Initiative & Referendum Inst. claimed that their First Amendment rights

19   were chilled because Utah’s super-majority requirement made it more difficult to pass wildlife

20   referenda, plaintiffs here claim that their First Amendment rights are chilled because New York

21   State law puts referenda and City Council legislation on equal footing, permitting the latter to

22   supersede the former (and vice versa). As such, like in Initiative & Referendum Inst., there is no

23   restriction on plaintiffs’ speech.

24           Other courts have addressed analogous circumstances and come to similar conclusions

25   that reinforce our holding that no First Amendment right is implicated in this case. For example,

26   Pony Lake School District 30 v. State Committee for Reorganization of School Districts, 710

27   N.W.2d 609, 624-25 (Neb.), cert. denied, 547 U.S. 1130 (2006), held that Nebraska’s

28   referendum process did not violate the First Amendment by requiring a heightened amount of

29   petition signatures to temporarily suspend the operation of a law that was enacted by a legislative



                                                      22
 1   body pending a referendum approving it. The court reasoned:

 2                         Although plaintiffs primarily rely on Meyer and Buckley to
 3                  support their position, neither case is applicable to initiative or
 4                  referendum processes that do not restrict political communication
 5                  or association. Neither do they apply to legislation which is not
 6                  intended to regulate these procedures.
 7
 8                          [The act] does not impose any restrictions or conditions on
 9                  plaintiffs’ right to communicate with voters about the political
10                  change they seek. Nor does [the act] attempt to regulate the
11                  circulation of initiative or referendum petitions. Rather, plaintiffs’
12                  assertion that their right to free speech has been diminished is
13                  based entirely upon their claim that unless [the act] is suspended
14                  until the referendum vote, the ability of those opposed to [it] to
15                  persuade voters to reject it will be more difficult. Plaintiffs’ claim
16                  is not based upon any actual restrictions on their right to
17                  communicate with voters.
18
19                           Given the conditions the people of Nebraska have imposed
20                  on their power to suspend an act’s operation pending a referendum
21                  election, the “difficulty,” as described by plaintiffs, can be avoided
22                  only by this court’s expanding the scope of the referendum power
23                  itself. As discussed, the U.S. Constitution does not guarantee a
24                  right of referendum, and to expand this right would be to ignore the
25                  clear and unambiguous procedure set out by the people in article
26                  III, § 3, of the state Constitution. This we shall not do.
27
28   Id. (internal citations omitted); see also Marijuana Policy Project v. United States, 304 F.3d 82,

29   84, 85 (D.C. Cir. 2002) (rejecting a First Amendment challenge to a law denying the District of

30   Columbia authority to “enact . . . any law” reducing penalties associated with possession, use, or

31   distribution of marijuana, because the legislation “restricts no speech; to the contrary, medical

32   marijuana advocates remain free to lobby, petition, or engage in other First

33   Amendment-protected activities to reduce marijuana penalties.”); Stone v. City of Prescott, 173

34   F.3d 1172, 1775 (9th Cir.) (holding that an Arizona ordinance denying its citizens the

35   opportunity to petition for a city-wide referendum with respect to laws passed under an


                                                      23
 1   emergency declaration did not fall within the orbit of Meyer and Buckley, as the law at issue was

 2   “not a restriction, condition, or requirement that impermissibly burdens the exercise of the

 3   referendum power, thereby invoking the protection of the First Amendment. Instead, it is a

 4   delegation to the legislature by the people of a part of their reserved power of referendum.”), cert.

 5   denied, 528 U.S. 870 (1999); Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291, 297

 6   (6th Cir. 1993) (“Unlike the challenged provisions in Meyer, Michigan’s initiative system does

 7   not restrict the means that the plaintiffs can use to advocate their proposal. . . . Our result would

 8   be different if, as in Meyer, the plaintiffs were challenging a restriction on their ability to

 9   communicate with other voters about proposed legislation, or if they alleged they were being

10   treated differently than other groups seeking to initiate legislation.”); Wellwood v. Johnson, 172

11   F.3d 1007, 1009 (8th Cir. 1999) (upholding an Arkansas law that required the signatures of 15

12   percent of the registered voters in a political subdivision to put on the ballot a local initiative

13   regarding whether a county is “wet” or “dry” because the requirement “in no way burden[s] the

14   ability of supporters of local-option elections to make their views heard”).

15           As our Sister Circuits (and the Nebraska Supreme Court) have recognized, plaintiffs’

16   First Amendment rights are not implicated by referendum schemes per se (and certainly not by

17   the City Council’s amendment of a law previously enacted by a referendum), but by the

18   regulation of advocacy within the referenda process, i.e., petition circulating, discourse and all

19   other protected forms of advocacy. Even if plaintiffs are correct that the enactment of Local Law

20   51 will make it more difficult for plaintiffs to organize voter initiatives and referenda in the

21   future, “the difficulty of the process alone is insufficient to implicate the First Amendment, as

22   long as the communication of ideas associated with the [referendum process] is not affected.”


                                                       24
 1   Dobrovolny v. Moore, 126 F.3d 1111, 1113 (8th Cir. 1997), cert. denied, 523 U.S. 1005 (1998).

 2          Here, no such effect exists. Nothing is preventing plaintiffs from engaging in First

 3   Amendment speech regarding term limits, whether within the referendum context or not. While

 4   we appreciate the practical reality that City voters will not be able to stop certain elected officials

 5   from seeking a third term in office through a voter initiative because the process would take until

 6   at least the November 2009 election, see supra [pp. 7-8], this temporal fact does not amount to a

 7   First Amendment violation. See, e.g., Save Palisade FruitLands v. Todd, 279 F.3d 1204, 1210-

 8   11 (10th Cir.) (holding that the United States Constitution does not guarantee the right to pass

 9   legislation by means of a referendum), cert. denied, 537 U.S. 814 (2002).

10          B.      Balancing Under Anderson v. Celebrezze is Unnecessary

11           Appellants argue, however, that Local Law 51 is entitled to First Amendment scrutiny

12   under Anderson v. Celebrezze, 460 U.S. 780 (1983). They state, because “[a]ll election laws

13   invariably impose some burden upon individual voters,” Green Party of N.Y. State v. N.Y. State

14   Bd. of Elections, 389 F.3d 411, 419 (2d Cir. 2004) (internal quotation marks omitted), Local Law

15   51 is subject to First Amendment balancing. Their argument begins from a faulty premise.

16   Anderson and its progeny deal with election and voting rights laws that restrict speech or ballot

17   access. Local Law 51 does neither.

18          To clarify this point, it is necessary to briefly discuss Anderson, its progeny and the cases

19   cited by appellants in their briefs. In Anderson, the Supreme Court addressed the First

20   Amendment validity of Ohio’s early filing deadline, which required an independent candidate for

21   the President of the United States to file his or her paperwork by March 20 in order to be on the

22   general election ballot for November 1980. See 460 U.S. at 782-83. As the Supreme Court


                                                       25
 1   pointed out, by March of an election year, “developments in campaigns for the major-party

 2   nominations have only begun, and the major parties will not adopt their nominees and platforms

 3   for another five months.” Id. at 790-91. The Supreme Court wrote:

 4                            Constitutional challenges to specific provisions of a State’s
 5                   election laws . . . cannot be resolved by any “litmus-paper test” that
 6                   will separate valid from invalid restrictions. Instead, a court must
 7                   resolve such a challenge by an analytical process that parallels its
 8                   work in ordinary litigation. It must first consider the character and
 9                   magnitude of the asserted injury to the rights protected by the First
10                   and Fourteenth Amendments that the plaintiff seeks to vindicate. It
11                   then must identify and evaluate the precise interests put forward by
12                   the State as justifications for the burden imposed by its rule. In
13                   passing judgment, the Court must not only determine the
14                   legitimacy and strength of each of those interests, it also must
15                   consider the extent to which those interests make it necessary to
16                   burden the plaintiff’s rights. Only after weighing all these factors
17                   is the reviewing court in a position to decide whether the
18                   challenged provision is unconstitutional.
19
20   Id. at 789. The Supreme Court concluded that the early filing deadline had the effect of “totally

21   exclud[ing] any candidate who makes the decision to run for President as an independent after

22   the March deadline.” Id. at 792. It reaffirmed that “it is especially difficult for the State to

23   justify a restriction that limits political participation by an identifiable political group whose

24   members share a particular viewpoint, associational preference, or economic status.” Id. at 793.

25   The Court wrote:

26                           A burden that falls unequally on new or small political
27                   parties or on independent candidates impinges, by its very nature,
28                   on associational choices protected by the First Amendment. It
29                   discriminates against those candidates and – of particular
30                   importance – against those voters whose political preferences lie
31                   outside the existing political parties. By limiting the opportunities
32                   of independent-minded voters to associate in the electoral arena to
33                   enhance their political effectiveness as a group, such restrictions
34                   threaten to reduce diversity and competition in the marketplace of


                                                       26
 1                  ideas. Historically political figures outside the two major parties
 2                  have been fertile sources of new ideas and new programs; many of
 3                  their challenges to the status quo have in time made their way into
 4                  the political mainstream. In short, the primary values protected by
 5                  the First Amendment – “a profound national commitment to the
 6                  principle that debate on public issues should be uninhibited, robust,
 7                  and wide-open”– are served when election campaigns are not
 8                  monopolized by the existing political parties. . . . The Ohio filing
 9                  deadline challenged in this case does more than burden the
10                  associational rights of independent voters and candidates. It places
11                  a significant state-imposed restriction on a nationwide electoral
12                  process.
13
14   Id. at 794-95 (internal citations and footnote omitted). The Court proceeded to hold the statute

15   unconstitutional, concluding that these burdens outweighed the State’s minimal interests in

16   imposing a March deadline. See id. at 796-806.

17          We recently had occasion to apply the Anderson balancing test in Price v. New York State

18   Board of Elections, 540 F.3d 101 (2d Cir. 2008), upon which appellants rely heavily in their

19   brief. In Price, we addressed the First Amendment constitutionality of New York’s prohibition

20   on voting by absentee ballot in elections for political party county committees. See id. at 103-04.

21   We reiterated the Supreme Court’s statement that “[a]ll ‘[e]lection laws will invariably impose

22   some burden upon individual voters.’” Id. at 107 (quoting Burdick v. Takushi, 504 U.S. 428, 433

23   (1992)) (second alteration in original). We emphasized that, in determining whether to apply the

24   First Amendment balancing test, “it is important only that there is at least some burden on the

25   voter-plaintiffs’ rights.” Id. at 109. We held that the plaintiffs “have an associational right to

26   vote in political party elections, and that right is burdened when the state makes it more difficult

27   for these voters to cast ballots.” Id. at 108 (internal citations omitted). In addition, we held that

28   “candidates’ associational rights are affected, in at least some manner, when barriers are placed



                                                       27
1    before the voters that would elect these candidates to party positions.” Id. (citing Anderson, 460

2    U.S. at 786). We concluded: “Because there is some burden on the plaintiffs’ associational

3    rights, we must apply the framework articulated in Burdick.” Id. (citing Burdick, 504 U.S. at

4    433-34). On balance, we concluded that the State’s interests were of “infinitesimal weight” and

5    thus could not outweigh the plaintiff’s First Amendment interests. See id. at 110-12.

6           In an attempt to convince us to apply the Anderson balancing test to Local Law 51,

7    appellants seize on our recent reaffirmation that “[a]ll election laws will invariably impose some

8    burden upon individual voters.” Price, 540 F.3d at 107 (quoting Burdick, 504 U.S. at 433)

9    (internal quotation marks and alteration omitted). But Anderson, Burdick and their progeny (as

10   well as all the other cases cited by appellants) are completely inapposite.10 These cases all


            10
               See, e.g., Crawford v. Marion County Election Bd., 128 S. Ct. 1610 (2008) (applying
     Anderson’s balancing test and upholding a Voter ID law); Randall v. Sorrell, 548 U.S. 230
     (2006) (plurality opinion) (striking down, in the face of a First Amendment challenge, Vermont’s
     campaign finance statute limiting both the amounts that candidates for state office could spend
     on their campaigns and the amounts that individuals, organizations, and political parties could
     contribute to those campaigns); Clingman v. Beaver, 544 U.S. 581 (2005) (applying Anderson’s
     balancing test and rejecting the Libertarian Party’s challenge to Oklahoma’s semi-closed primary
     allowing a party to invite its own members and those registered as Independents to vote in the
     party’s primary, but not members of other parties); Burdick, 504 U.S. 428 (applying Anderson’s
     balancing test and upholding Hawaii’s ban on write-in voting); Rutan v. Republican Party of Ill.,
     497 U.S. 62 (1990) (holding that the First Amendment prohibits government officials from
     discharging or threatening to discharge public employees solely for not supporting the political
     party in power); Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214 (1989)
     (holding that California violated the First Amendment by, inter alia, banning primary
     endorsements by political parties); Bullock v. Carter, 405 U.S. 134 (1972) (upholding an Equal
     Protection challenge to a Texas law requiring a candidate to pay a filing fee as a condition to
     having his name placed on the ballot in a primary election); Williams v. Rhodes, 393 U.S. 23, 24
     (1968) (invalidating Ohio’s election laws that made “it virtually impossible for a new political
     party, even though it has hundreds of thousands of members, or an old party, which has a very
     small number of members, to be placed on the state ballot to choose electors pledged to
     particular candidates for the Presidency and Vice Presidency of the United States”); Libertarian
     Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir. 2006) (invalidating an Ohio election law
     requiring all minor parties to file a petition no later than 120 days prior to the date of the primary

                                                      28
 1   involve direct restrictions on speech or access to the ballot. Plaintiffs face no such restrictions by

 2   virtue of Local Law 51. Rather, plaintiffs argue that they and other voters will be less likely to

 3   engage in speech and that their speech will potentially become less effective if law passed by

 4   referenda can be amended or repealed by City Council legislation. For the reasons explained,

 5   this does not amount to a First Amendment violation.

 6          Finally, in footnote five of their Brief and throughout their Reply Brief, appellants argue

 7   that their First Amendment rights are violated because the extension of term limits “burdens both

 8   voters in their ability to effectively support would-be challengers to entrenched incumbents and

 9   challengers in their ability to mount effective campaigns.” Brief for Appellants at 24 n.5. Thus,

10   in order to trigger First Amendment scrutiny, appellants argue that Local Law 51 affects the

11   “eligibility of candidates.” Reply Brief for Plaintiffs-Appellants William C. Thompson, Jr., et al.

12   (“Reply Brief for Appellants”) at 5 (citing Anderson, 460 U.S. at 788 (“Each provision of these

13   schemes, whether it governs the registration and qualifications of voters, the selection and

14   eligibility of candidates, or the voting process itself, inevitably affects – at least to some degree –

15   the individual’s right to vote and his right to associate with others for political ends.”) (emphasis

16   added)).

17          Notwithstanding appellants’ protestations to the contrary, this argument necessarily

18   focuses on the substantive impact that the extension of term limits has on the political landscape.


     election); Green Party of N.Y. State v. N.Y. State Bd. of Elections, 389 F.3d 411 (2d Cir. 2004)
     (applying the Anderson balancing test and invalidating New York’s voter enrollment scheme,
     which did not keep data on enrollment in political parties that failed to receive 50,000 votes for
     their gubernatorial candidates in the previous election); Unity Party v. Wallace, 707 F.2d 59 (2d
     Cir. 1983) (rejecting a First Amendment and Equal Protection challenge to New York’s
     requirement that minor party candidates accept the nomination of the party by a certain date prior
     to the election).

                                                       29
 1   See Reply Brief for Appellants at 5 (“As a matter of law, the Term-Limits Amendment, by

 2   regulating eligibility requirements for office, necessarily burdens First Amendment activity to at

 3   least some degree.”). But they ultimately concede, and the law is clear, that they have no First

 4   Amendment right to term limits. See id. at 5. Cf. U.S. Term Limits, Inc. v. Thorton, 514 U.S.

 5   779, 837 (1995) (explaining that the issue of term limits at the state and local level does not

 6   implicate the U.S. Constitution). Moreover, their Amended Complaint, in its eighty-six pages,

 7   makes no allegation that plaintiffs’ First Amendment rights are somehow burdened, even if only

 8   in the slightest way, by Local Law 51’s substantive change to term limits.

 9          Faced with these insurmountable problems, appellants quickly switch gears and argue that

10   the First Amendment “burdens [do not] flow[] from the substance of the Term-Limits

11   Amendment itself. Rather, they are all the direct result of the process by which that law was

12   enacted and, more specifically, of [defendants’] calculated disregard for the voice of City voters.”

13   See Reply Brief for Appellants at 7. In particular, they argue, defendants’ “eleventh-hour

14   undoing of the 1993 and 1996 Referenda has discouraged referenda-related speech, impaired its

15   future effectiveness, and directly frustrated the present exercise of New York City voters’

16   acknowledged right to put the term-limits issue to a third citywide vote.” Id. Thus, appellants

17   transform the very essence of their claim as they arrive at different junctures of the First

18   Amendment analysis.

19          We are not persuaded by these efforts. At bottom, plaintiffs challenge New York’s equal

20   treatment of law enacted by referendum and law enacted by a legislative body. Such a scheme,




                                                      30
 1   however, does not run afoul of the First Amendment.11 Any chilling of plaintiffs’ First

 2   Amendment activity is self-imposed and thus “incidental[] and constitutionally insignificant.”

 3   Cohen v. Cowles Media Co., 501 U.S. 663, 672 (1991).

 4   II.    Substantive Due Process

 5          Appellants argue next that Local Law 51 violates their substantive due process rights

 6   guaranteed by the Fourteenth Amendment of the U.S. Constitution. Specifically, they argue that

 7   because the purpose of Local Law 51 was an “incumbency re-employment program” to allow

 8   “those in power to have the opportunity to remain in power,” rational-basis review is not

 9   applicable. See Brief for Appellants at 36, 38, 40.

10          The law in this Circuit is clear that “[w]here, as here, a statute neither interferes with a

11   fundamental right nor singles out a suspect classification, ‘we will invalidate [that statute] on

12   substantive due process grounds only when a plaintiff can demonstrate that there is no rational

13   relationship between the legislation and a legitimate legislative purpose.’” Maloney v. Cuomo,

14   554 F.3d 56, 59-60 (2d Cir. 2009) (per curiam) (quoting Beatie v. City of N.Y., 123 F.3d 707, 711

15   (2d Cir. 1997)). Appellants identify neither a fundamental right nor a suspect classification that

16   is at issue here. As for a fundamental right, appellants appear to argue that Local Law 51

17   implicates a right to term limits or a right to be free from law enacted by legislators acting in

18   their own political self-interest.12 The Due Process Clause guarantees neither.13 As for a suspect


            11
                Although plaintiffs in fact criticize the City’s procedures for holding referenda because
     “[c]itizens seeking a vote by referendum . . . face an arduous task to merely appear on the ballot,
     let alone to persuade fellow voters of the desirability of their position,” J.A. 54 (Pls. Am.
     Complt. ¶ 65), they make no legal challenge to that process in the instant suit.
            12
             Appellants do not appear to argue that laws enacted by referenda cannot be
     subsequently amended or repealed by a legislative body without contravening the Due Process

                                                      31
 1   class, clearly plaintiffs are not so situated, nor do they suggest otherwise.

 2          To avoid rationality review, appellants argue that it “is deeply inappropriate for

 3   legislation that threatens to distort or manipulate regular democratic processes, such as ‘when

 4   [incumbent] state legislators are passing laws dealing with their own re-election prospects.’” See

 5   Brief for Appellants at 36 (alteration in original). For this proposition, they rely on a dissenting

 6   opinion from the Fourth Circuit’s denial of a petition for rehearing en banc, see Miller v.

 7   Cunningham, 512 F.3d 98, 99 (4th Cir. 2007) (Wilkinson, J., dissenting), and the First Circuit’s

 8   decision in Bonas v. Town of North Smithfield, 265 F.3d 69 (1st Cir. 2001). Neither stands for

 9   this proposition, and both are entirely inapposite.

10          Although we need not heed a dissent from the Fourth Circuit’s denial of a petition for

11   rehearing en banc, we have satisfied ourselves that it is irrelevant to this appeal. In his dissent,

12   Judge Wilkinson addresses a Virginia election law entitling an incumbent state legislator to

13   select the method of nomination for his own seat, to which he was himself eligible to seek

14   reelection. See Miller, 512 F.3d at 99-100 (Wilkinson, J., dissenting). Judge Wilkinson appears

15   to opine that it violates the Equal Protection Clause by discriminating in favor of incumbents, as

16   well as the First Amendment rights of political parties to free association. See id. at 104-05.



     Clause of the Fourteenth Amendment. Assuming, arguendo, that they do raise such an
     argument, it must be rejected because there is no fundamental right to pass law by referendum at
     all. See supra [p. 16].
            13
               Cf. U.S. Term Limits, Inc. v. Thorton, 514 U.S. 779, 837 (1995) (regarding term limits);
     Vieth v. Jubelirer, 541 U.S. 267 (2004) (plurality opinion) (with respect to politically self-
     interested legislation, holding that political gerrymandering raises a non-justiciable question
     because, inter alia, incumbents pass redistricting legislation with an intent, at least in part, to
     gain “political advantage,” and determining when the motive of “political advantage” reaches an
     intolerable level is impracticable).

                                                       32
 1   Although appellants cherry pick statements from his dissent that appear to support their position,

 2   the dissent, taken as a whole, directly contradicts their argument. Indeed, it explicitly recognizes

 3   that the issue of term limits, even if the lack thereof tends to favor incumbents, is not one of

 4   constitutional dimension. See id. at 104. Moreover, Judge Wilkinson notes:

 5                  [T]here is certainly nothing unconstitutional per se about
 6                  incumbents shaping the electoral process to their advantage. This
 7                  is merely a feature of American politics. The Framers were surely
 8                  aware of the desire of those who hold elective office to retain
 9                  elective office, yet they were clearly comfortable giving
10                  incumbents the authority to write election law. Judicial
11                  intervention into the electoral process, merely for the purpose of
12                  rooting out self-interested political behavior, would therefore be a[]
13                  “substantial” incursion into textually and traditionally legislative
14                  prerogatives.
15
16   Id. at 102.

17           The First Circuit opinion in Bonas is equally unhelpful to plaintiffs, as it involves nothing

18   more than the interpretation of state election law. In Bonas, the voters of North Smithfield,

19   Rhode Island passed a 1998 referendum switching municipal elections from odd-numbered to

20   even-numbered years starting in the year 2002. See 265 F.3d at 71-73. Three school committee

21   members were elected in 1997, each to serve a four-year term in accordance with the election law

22   at that time. See id. The committee members asserted that the 1998 referendum “erases any

23   need for an election in 2001.” See id. at 71. The referendum, however, did not explicitly

24   mention any changes in the election schedule leading up to 2002, nor was any official action ever

25   taken aimed at lengthening the terms for these offices. See id. at 72. The defendants,

26   nevertheless, decided not to hold a municipal election in 2001. See id. at 73. The plaintiffs sued,

27   seeking to compel the election in November 2001 for those whose terms expired that year. The



                                                      33
 1   court wrote:

 2                  Here, our evaluation of whether such widespread
 3                  disenfranchisement has occurred starts – and ends – with a
 4                  question of state law: Do state and local rules mandate an election
 5                  in North Smithfield for the offices of town council and school
 6                  committee in the fall of 2001? [If] such an election is required . . .
 7                  the Town’s refusal to hold it would work a total and complete
 8                  disenfranchisement of the electorate, and therefore would
 9                  constitute a violation of due process (in addition to being a
10                  violation of state law).
11
12   Id. at 75. The court ultimately concluded that “the language of the referendum requires that the

13   odd-year election cycle continue undisturbed until the year 2002.” Id. at 77. Thus, Bonas holds

14   only that incumbents cannot sua sponte do away with an election when state law mandates it.

15   This has nothing to do with the issues presented on this appeal.

16          Let us be clear. It is indisputable that, as a result of Local Law 51, several Members of

17   the City Council who voted for it and were ineligible to run for reelection under the previous

18   term limits law will now be able to seek reelection in the City’s November 2009 election. Some,

19   perhaps even many, of these incumbents may be elected to a third term. Nevertheless, Local Law

20   51 neither interferes with a fundamental right nor singles out a suspect classification.

21   Accordingly, it is subject to rationality review.

22          Here, the City’s purported reason for enacting Local Law 51 is to provide the voters with

23   an opportunity to elect experienced public officials in a time of financial crisis. It is beyond

24   dispute that extending New York City’s term limits to three consecutive terms is rationally

25   related to that legitimate objective. The fact that defendants also may have been motivated by

26   political reasons – the desire to remain in office and in positions of seniority – is inconsequential

27   under our substantive due process analysis. See Beatie, 123 F.3d at 712 (“To uphold the


                                                         34
 1   legislative choice, a court need only find some ‘reasonably conceivable state of facts that could

 2   provide a rational basis’ for the legislative action.”) (quoting Heller v. Doe, 509 U.S. 312, 320

 3   (1993)). We note only that this consideration may well play a part in the voters’ decision to vote

 4   them back into office (or not).

 5           Finally, plaintiffs make much of the fact that the Mayor and various Council Members

 6   have stated that they intend to put the issue of term limits to referendum after the next election

 7   cycle in an effort to return the law to a maximum of two consecutive terms. Plaintiffs state that

 8   this “one time only deal” violates due process. However, Local Law 51 does not contain a sunset

 9   provision; rather, it states that it:

10                    shall be deemed repealed upon the effective date of a lawful and
11                    valid proposal to amend the charter to set term limits at two, rather
12                    than three, full consecutive terms, as such limits were in force and
13                    effect prior to the enactment of this local law, where such proposal
14                    has been submitted for the approval of the qualified electors of the
15                    city and approved by the majority of such electors voting thereon.
16
17   See S.A. 67-68. Of course, the fact that this law may be repealed by a referendum makes it no

18   different than any other law amending the City Charter. We fully agree with the District Court’s

19   statement that terming Local Law 51 a “one-time only” measure “does not change [the Due

20   Process] analysis.” Molinari v. Bloomberg, 596 F. Supp. 2d 546, 571 (E.D.N.Y. 2009).

21           In conclusion, Local Law 51 does not violate plaintiffs’ substantive due process rights

22   guaranteed by the Fourteenth Amendment.

23   III.    New York State Referendum Law

24           Plaintiffs argued before the District Court that under Municipal Home Rule Law §

25   23(2)(b), (e) and (f), the substance of Local Law 51 could be enacted only by referendum. These



                                                       35
 1   subsections provide, in relevant part:

 2                  Except as otherwise provided by or under authority of a state
 3                  statute, a local law shall be subject to mandatory referendum if it:
 4                  ...
 5                  b. In the case of a city, town or village, changes the membership or
 6                  composition of the legislative body or increases or decreases the
 7                  number of votes which any member is entitled to cast.
 8                  ...
 9                  e. Abolishes an elective office, or changes the method of
10                  nominating, electing or removing an elective officer, or changes
11                  the term of an elective office, or reduces the salary of an elective
12                  officer during his term of office.
13
14                  f. Abolishes, transfers or curtails any power of an elective officer. .
15                  ..
16
17   N.Y. MUN . HOME RULE LAW § 23(2) (emphasis added). Plaintiffs advanced this challenge under

18   the parallel provisions of the New York City Charter as well.14

19          On appeal, however, appellants have abandoned their arguments with respect to

20   subdivisions (e) and (f), as well as New York City Charter § 38,15 and argue here only that Local

21   Law 51 “changes the membership . . . of the legislative body,” as provided under Municipal


            14
               New York City Charter § 38 provides, in relevant part, that a referendum is required for
     the passage of a local law that: “Abolishes or changes the form or composition of the council[,] .
     . . changes the term of an elective officer, or [a]bolishes, transfers or curtails any power of an
     elective officer.” N.Y. City Charter § 38 (N.Y. Legal Publ’g Corp. 2001).
            15
                They make no argument in their opening brief with respect to subdivisions (e) or (f) of
     section 23(2) of the New York Municipal Home Rule Law or New York City Charter § 38,
     except for noting in a footnote that if we were to certify the question regarding section 23(2)(b)
     to the New York Court of Appeals, we should certify the questions regarding the former
     provisions as well. See Brief for Appellants at 48 n.15. Moreover, appellants offer no response
     in their Reply Brief to appellees’ argument that their claims under subdivisions (e) and (f) and
     New York City Charter § 38 are abandoned. Appellants merely reassert their request for
     certification. See Reply Brief for Appellants at 20-21. In short, they make no argument
     whatsoever regarding their claims under subdivisions (e) or (f) or New York City Charter § 38.
     Accordingly, such claims are deemed abandoned. See, e.g., United States v. Restrepo, 986 F.2d
     1462, 1463 (2d Cir.), cert. denied, 510 U.S. 843 (1993).

                                                      36
 1   Home Rule Law § 23(2)(b).16 As noted at the outset, the New York Court of Appeals has made

 2   clear that local governments have broad power to enact local laws, and direct democracy in New

 3   York is the exception, not the rule. See McCabe v. Voorhis, 243 N.Y. 401, 413 (1926). Section

 4   10 of the Municipal Home Rule Law provides that city governments shall have the power to

 5   adopt and amend local laws relating to “[t]he powers, duties, qualifications, number, mode of

 6   selection and removal, terms of office, compensation, hours of work, protection, welfare and

 7   safety of its officers and employees.” N.Y. MUN . HOME RULE LAW § 10(1)(a)(1). Indeed, the

 8   Second Department in Golden v. New York City Council, 762 N.Y.S.2d 410 (App. Div. 2d

 9   Dep’t), appeal denied, 793 N.E.2d 411 (N.Y. 2003) held that a referendum was not required to

10   enact Local Law 27 (2002), which amended term limits and had the effect of allowing certain

11   City Council Members to seek reelection who were ineligible under the previous term limit law

12   and, in some instances, to serve two more consecutive years than previously allowed. The parties

13   in that case did not, however, invoke subsection 23(2)(b) of the New York Municipal Home Rule

14   Law. Thus, we are now faced with the question of whether plaintiffs’ invocation of this

15   subsection commands a different result than as in Golden.

16          Appellants argue that Local Law 51 “changes the membership of” the City Council

17   because it will inevitably result in the reelection of many incumbents in November 2009 who


            16
               By pursuing only a claim under Municipal Home Rule Law § 23(2)(b), appellants have
     necessarily abandoned their argument that extending term limits for the Mayor, Comptroller and
     Borough Presidents requires a referendum under state law because section 23(2)(b) does not
     apply to executive officials. See N.Y. MUN . HOME RULE LAW § 23(2)(b) (applying only to those
     laws that “change[] the membership or composition of the legislative body . . . .”) (emphasis
     added). Accordingly, appellants’ argument relates only to City Council Members and the Public
     Advocate. See N.Y. City Charter §§ 21-22 (“There shall be a council which shall be the
     legislative body of the city. . . . The council shall consist of the public advocate and of fifty-one
     other members termed council members.”).

                                                      37
 1   were ineligible to seek reelection under the previous term limit law. The parties do not dispute

 2   that the incumbent reelection rate in New York City is approximately 98%. Appellees offer two

 3   responses to this argument. First, they contend that the phrase “membership” refers to structural

 4   changes in the legislative body, not changes in the identity of the individuals who constitute it.

 5   For example, they claim that an increase or decrease in the number of seats in the City Council

 6   would constitute a “change[]” in “membership.” Second, they argue that the law in question

 7   must directly cause the “change[] in membership” to trigger section 23(2)(b). They contend that

 8   Local Law 51 merely permits certain incumbents to run for reelection who were term limited

 9   under the previous law, but it is the voters who will cause the “change[]” in “membership” by

10   voting for particular candidates in the November 2009 election. New York State’s jurisprudence

11   in this area makes clear that appellees are correct in both respects.

12           There is no case law interpreting Municipal Home Rule Law § 23(2)(b), which went into

13   effect on January 1, 1964. There is case law, however, interpreting its predecessor, City Home

14   Rule Law § 15(1), which provided, in relevant part, “Except as otherwise provided by or under

15   authority of an act of the legislature, a local law shall be subject to mandatory referendum if it . . .

16   [c]hanges the form or composition of the local legislative body . . . .” N.Y. CITY HOME RULE

17   LAW § 15(1) (repealed Jan. 1, 1964) (McKinney’s 1952) (emphasis added). The only notable

18   difference between City Home Rule Law § 15 and Municipal Home Rule Law § 23(2)(b) is that

19   the former uses the word “form” where the latter uses “membership.”

20           It is clear, however, that the New York State Legislature did not intend to make a

21   substantive change in the meaning of the provision by virtue of this revision. The passage of

22   New York Municipal Home Rule Law in 1964 consolidated several separate statutes that defined


                                                       38
 1   the powers of different types of municipalities. Specifically, it replaced “the City Home Rule

 2   Law, the Village Home Rule Law, articles 6 and 6A of the County Law (containing general

 3   grants of local law powers to counties) and §§ 51-a though 51-f of the Town Law (containing

 4   general grants of local law powers to suburban towns).” N.Y. MUN . HOME RULE LAW § 58

 5   (note). The New York Office for Local Government was assigned the task of drafting the

 6   Municipal Home Rule Law. Its stated purpose in drafting the law was to “assure uniformity” in

 7   governance among the various types of municipalities and to make it “easier to effectuate”

 8   “future amendments and revisions of law . . . since only one law would have to be amended

 9   rather than four.” See Purpose and Scope of Mun. Home Rule Law, Memorandum of N.Y.

10   Office for Local Gov’t, reprinted in 35C McKinney’s Consol. Laws of N.Y., at XI, XIII-XIV

11   (1994); see also Analysis of the Mun. Home Rule Law, Memorandum of N.Y. Office for Local

12   Gov’t (enacted by L. 1963, c. 843), reprinted in 35C McKinney’s Consol. Laws of NY, at XV-

13   XXIII (1994).

14          Furthermore, the Municipal Home Rule Law states that it was not intended:

15                   to abolish or curtail any rights, privileges, powers or jurisdiction
16                   heretofore conferred upon or delegated to any local government or
17                   to any board, body or officer thereof, unless a contrary intention is
18                   clearly manifest from the express provisions of this chapter or by
19                   necessary intendment therefrom, or to restrict the powers of the
20                   legislature to pass laws regulating matters other than the property,
21                   affairs or government of local governments as distinguished from
22                   matters relating to their property, affairs or government.
23
24   N.Y. MUN . HOME RULE LAW § 50(3).

25          With particular respect to section 23 of the Municipal Home Rule Law, New York’s

26   Office for Local Government stated:



                                                      39
 1                   Section 23 is based on City Home Rule Law, section 15, with some
 2                   clarification in the first subdivision. . . . With respect to matters
 3                   subject to mandatory referendum, the subjects are as they appear in
 4                   the City Home Rule Law provision, except that changes are made
 5                   to adjust the section to the fact that it also applies to counties,
 6                   towns and villages.
 7
 8   Analysis of the Mun. Home Rule Law, 35C McKinney’s Consol. Laws of N.Y., at XXI; see also

 9   Home Rule Handbook, N.Y. Office for Local Gov’t, Memorandum, Constitutional Amendment

10   Re Home Rule and Related Legislation, May 1963, at J.A. 813-15 (“The procedure for adoption

11   of local laws, the specification of types of local laws subject to referenda (mandatory or

12   permissive), the restriction and prohibitions against the adoption of local laws would be

13   substantially as they now are in the City Home Rule Law.”).

14            We conclude, therefore, that the New York State Legislature did not intend a substantive

15   change by replacing the word “form” as used in section 15 of the City Home Rule Law with

16   “membership” as used in section 23(2)(b) of the Municipal Home Rule Law. See, e.g., In re

17   Estate of Horchler, 322 N.Y.S.2d 88, 90 (App. Div. 2d Dep’t 1971) (“[N]o general or material

18   change in the existing law is intended by a revision, unless the legislative design to accomplish a

19   change is evident.”) (internal citations omitted), aff’d on op. of App. Div., 283 N.E.2d 768 (N.Y.

20   1972).

21            It necessarily follows that case law interpreting the former is persuasive as to the proper

22   interpretation of the latter. These cases demonstrate that a law that has the effect of changing

23   who constitutes a legislative body, as plaintiffs allege Local Law 51 will do, does not “change[]

24   the form or composition of the legislative body.” In Neils v. City of Yonkers, 237 N.Y.S.2d 245

25   (Sup. Ct. 1962), the court addressed whether the changing of ward boundary lines constituted “a



                                                       40
 1   change in the form or composition” of the local legislative body under section 15(1) of the City

 2   Home Rule Law. See id. at 250-51. Even though the changing of boundary lines would appear

 3   to affect who would be elected to office, the court held that it did not come within section 15(1)

 4   of the City Home Rule Law and so did not require a referendum. See id. at 251.

 5          In Mehiel v. County Board of Legislators, 571 N.Y.S.2d 808 (App. Div. 2d Dep’t),

 6   appeal denied, 578 N.E.2d 443 (N.Y. 1991), New York’s Appellate Division addressed whether

 7   a local law passed by the Westchester County Legislature providing for the reapportionment of

 8   its legislative districts required a referendum under New York Municipal Home Rule Law §

 9   34(4), which deals with permissive referenda in counties. Like section 15 of the City Home Rule

10   Law, section 34(4) requires a referendum to enact any local law that “changes the form or

11   composition of the board of supervisors of such county.” See id. at 809. The court held that

12   “[t]he redistricting plan under consideration merely changes the boundary lines of the legislative

13   districts in Westchester County and does not constitute a change in the ‘form or composition’ of

14   the Westchester County Legislature.” Id. (internal citations omitted).

15          We find Neils and Mehiel especially instructive because redistricting has as much

16   potential to change the individual members of a legislative body as does a change in term limits.

17   Nevertheless, both courts decided that redistricting does not “change[] the form or composition”

18   of the relevant body. This case law leads us to conclude that Municipal Home Rule Law §

19   23(2)(b) refers to structural changes, and not changes in the identity of the individual members

20   who comprise the legislative body.

21          We also find persuasive the District Court’s discussion of the term “membership” as used

22   in the Optional County Government Law, a New York State statute enacted around the same time


                                                     41
 1   as the Municipal Home Rule Law. This statute, enacted in 1961 but since repealed, provided in

 2   relevant part:

 3                    If such city elects to withdraw from the jurisdiction of its civil
 4                    service commission and adopt the county civil service
 5                    administration, the membership of the county civil service
 6                    commission shall, on the date on which such change of form of
 7                    administration by the city becomes effective, be increased to five
 8                    members, all of whom shall be appointed by the county manager,
 9                    and not more than three of whom shall at the same time be
10                    adherents of the same political party.
11
12   Chapter 565 (the Optional County Government Law § 1008) (1961), reprinted in LAWS OF N.Y.,

13   184th Session, 1961, Vol. 2, at 1787 (emphasis added). As aptly noted by the District Court:

14                    It is unlikely that the legislature radically revised its understanding
15                    of the term “membership” between 1961 and 1963. Hence, the
16                    1963 legislature, which passed the Municipal Home Rule Law,
17                    conceived of the term “membership” as referring to structural
18                    characteristics, including the number of persons in the legislative
19                    body.
20
21   Molinari v. Bloomberg, 596 F. Supp. 2d 546, 572 (E.D.N.Y. 2009).

22          We also find persuasive the relatively recent New York Court of Appeals decision in

23   Mayor of City of New York v. Council of City of New York, 874 N.E.2d 706 (N.Y. 2007). In

24   2001, the City Council, over then-Mayor Rudolph Giuliani’s veto, enacted Local Laws 18 and

25   19. Prior to the enactment of these local laws, the Mayor was required to engage in collective

26   bargaining with City employees through one certified employee organization regarding certain

27   matters. There was one exception: the Mayor had to bargain directly with unions representing

28   “uniformed” employees, e.g., uniformed police, fire, sanitation and correction services. The

29   2001 local laws, however, expanded the definition of “uniformed” employees to include fire

30   alarm dispatchers and emergency medical technicians. See id. at 707-09. The Mayor challenged


                                                        42
 1   the local laws on the ground that it was subject to a mandatory referendum under Municipal

 2   Home Rule Law § 23(2)(f), which provides: “Except as otherwise provided by or under

 3   authority of a state statute, a local law shall be subject to mandatory referendum if it . . .

 4   [a]bolishes, transfers or curtails any power of an elective officer.” See id. at 710.

 5           The Court rejected the Mayor’s challenge, reasoning:

 6                            The requirement of a referendum for legislation that
 7                   “curtails any power of an elective officer” must be read as applying
 8                   only to legislation that impairs a power conferred on the officer as
 9                   part of the framework of local government. For example, a local
10                   law limiting the power of New York City’s Mayor to appoint
11                   commissioners, or to prepare a budget, or to create or abolish
12                   positions within his executive office would require a referendum
13                   (see N.Y. City Charter §§ 6, 8 [f]; § 225 [a]). But, as a general
14                   rule, a law that merely regulates the operations of city government,
15                   in collective bargaining or in some other area, is not a curtailment
16                   of an officer’s power. . . .
17
18                          So here, the Mayor’s power in the New York City
19                   governmental structure is unimpaired. A local law prescribing a
20                   procedural rule for collective bargaining is not an encroachment
21                   on the Mayor’s role in City government. The limitation on his
22                   freedom to act is merely a consequence of legislative
23                   policymaking. By contrast, the cases the Mayor relies on all
24                   involved limitations on an elected officer’s structural authority.
25
26   Id. at 711 (internal citations omitted) (emphasis added). Thus, the New York Court of Appeal’s

27   analysis clearly emphasizes Municipal Home Rule Law § 23(2)’s concern with structural changes

28   made by law, as opposed to an incidental consequence of a law.

29           Based on these authorities, we agree with appellees that the term “membership” as used

30   in Municipal Home Rule Law § 23(2)(b) refers to the structural characteristics of the legislative

31   body. A structural change to the “membership” might occur, for example, where a law directly




                                                       43
 1   increases or decreases the number of seats in the legislative body.17 Local Law 51, however,

 2   affects only an incumbent’s eligibility to seek reelection.

 3          Even assuming, arguendo, that the term “membership” as used in the statute refers to the

 4   specific individuals constituting a legislative body, as appellants suggest, Local Law 51 does not

 5   trigger Municipal Home Rule Law § 22(2)(b) because it does not directly change the

 6   membership; rather, the election results in November 2009 will cause this change. See Lane v.

 7   Johnson, 28 N.E.2d 705 (N.Y. 1940).

 8          In Lane, the Village of Peekskill, which was part of the Town of Cortlandt, decided to

 9   form its own city, the City of Peekskill. It drafted a charter with that effect, which provided,

10   inter alia, for the election of two supervisors who were defined thereunder as “City officers.”

11   See id. at 710-11. Under New York law at the time, “[t]he supervisors of the cities . . . in each

12   county, when lawfully convened, [were also] the board of supervisors of the county.” See id. at

13   711 (internal quotation marks omitted). Thus, when the two supervisors were elected as


            17
               We note that City Charter § 22 provides that “the size of the council . . . may be
     increased by local law without approval” by the electors in a referendum. See N.Y. City Charter
     §§ 22, 38 (N.Y. Legal Publ’g Corp. 2001). On its face, this seems to conflict with section
     23(2)(b), though appellants do not raise this argument. We need not resolve this conflict. We
     note, however, by its express terms section 22 is subject to state law. See N.Y. City Charter § 22
     (“Consistent with state law, the size of the council and the number of districts from which
     council members are elected may be increased by local law without approval pursuant to section
     thirty-eight.”) (emphasis added); see also id. § 28 (“The council in addition to all enumerated
     powers shall have power to adopt local laws which it deems appropriate, which are not
     inconsistent with the provisions of this charter or with the constitution or laws of the United
     States or this state, for the good rule and government of the city;”) (emphasis added); see also
     N.Y. MUN . HOME RULE LAW § 10 (enumerating powers and limits of local government).
     Moreover, the New York Court of Appeals has long held that a city charter cannot be
     “inconsistent with [the] laws of the State.” People v. Lewis, 64 N.E.2d 702, 703 (N.Y. 1945); see
     also Fossella v. Dinkins, 485 N.E.2d 1017, 1018-19 (N.Y. 1985) (per curiam). Thus, any
     analysis of section 22 of the City Charter would in turn implicate state law, including New York
     Municipal Home Rule Law § 23.

                                                      44
 1   Peekskill “City officers,” they also became members of the Board of Supervisors of the county,

 2   thereby increasing the number of supervisors on the county Board. See id. The plaintiffs argued

 3   that the Peekskill charter violated New York law prohibiting any law “which . . . changes the

 4   form or composition of the elective body of such county . . . without adoption by the electors of

 5   such county . . . .” See id. The Court of Appeals rejected the argument, writing:

 6                  [The City of Peeskill] has not by the special or local law . . .
 7                  changed in any manner any provision of law which fixes the form
 8                  of county government of Westchester or the form or composition
 9                  of any elective body. It has merely exercised its power to
10                  incorporate a city[;] and by force of the provisions of the general
11                  law which determines the form or composition of the Board of
12                  Supervisors, city officers become members of the Board of
13                  Supervisors and thus the number of members of the Board of
14                  Supervisors is increased.
15
16   Id. at 712.

17           As in Lane, Local Law 51 is not what works the change in the membership of the City

18   Council. Rather, any effect caused by Local Law 51, although real, is indirect. The change will

19   be caused by the November 2009 election results. Local Law 51 affects only certain candidates’

20   eligibility to seek reelection. It is of no moment that a number of formerly term-limited Council

21   members will likely – indeed, almost certainly – win reelection because of the opportunity

22   afforded them by Local Law 51. The City’s argument in this regard appears to us to be

23   unassailable: “If merely changing the likelihood that particular individuals will serve in the

24   future constitutes ‘changing’ the Council’s membership or composition, then a host of other

25   legislation with similar spillover effects – campaign finance changes, for one example – would

26   also need voter approval.” Brief for Defendants-Appellees Michael R. Bloomberg, et al. at 4.

27   This conclusion is consistent not only with Lane but also with the redistricting decisions in Niels


                                                     45
 1   and Mehiel. Clearly redistricting is likely to have the ultimate effect of changing who will run

 2   and sit in a legislative body, but New York courts have held it does not require a referendum.

 3            For all the reasons discussed, we hold that section 23(2)(b) of New York Municipal

 4   Home Rule Law does not require a referendum to enact Local Law 51. We decline appellants’

 5   invitation to certify the interpretation of this provision to the New York Court of Appeals.

 6   “Despite our discretionary authority to certify, certification is an exceptional procedure, to which

 7   we resort only in appropriate circumstances.” McGrath v. Toys “R” Us, Inc.. 356 F.3d 246, 250

 8   (2d Cir. 2004) (citing Krohn v. N.Y. City Police Dep’t, 341 F.3d 177, 180 (2d Cir. 2003)). “In

 9   the past, we have certified questions to the New York Court of Appeals only where there is a

10   split of authority on the issue, where the statute’s plain language does not indicate the answer, or

11   when presented with a complex question of New York common law for which no New York

12   authority can be found.” Riordan v. Nationwide Mut. Fire Ins. Co., 977 F.2d 47, 51 (2d Cir.

13   1992).

14            These circumstance are not present here. We are confident as to how the New York

15   Court of Appeals would rule on this issue in light of the presumption of representative

16   democracy in New York, the plain meaning of the statute, its legislative history, the holdings in

17   Niels and Mehiel, the meaning of the term “membership” as used in the Optional County

18   Government Law § 1008 and the New York Court of Appeals decisions in Mayor of City of New

19   York v. Council of City of New York and Lane v. Johnson. Conversely, there is a complete

20   absence of authority suggesting that the New York Court of Appeals would hold that section




                                                      46
1    23(2)(b) is triggered by Local Law 51.18 Accordingly, we perceive no benefit from certifying this

2    question to the New York Court of Appeals because we are in a position to conclude with

3    sufficient certainty what it would hold. That is, New York Municipal Home Rule Law § 23(2)(b)

4    does not require a referendum to enact Local Law 51.

5    IV.    Conflict of Interest

6           Finally, plaintiffs allege that defendants violated the conflicts of interest provisions set

7    forth in Chapter 68 of the City Charter, § 2604(b)(2), (3), as well as Conflicts Board Rule 1-13(d)

8    (“Rule 1-13(d)”).

9           The provisions provide, in relevant part:

10                  2. No public servant shall engage in any business, transaction or
11                  private employment, or have any financial or other private interest,
12                  direct or indirect, which is in conflict with the proper discharge of
13                  his or her official duties.
14


            18
                Appellants rely exclusively on Forti v. New York State Ethics Commission, 554 N.E.2d
     876 (N.Y. 1990), in which the New York Court of Appeals addressed the constitutionality of the
     Ethics in Government Act, to argue that Local Law 51 implicates “membership” as used in
     section 23(2)(b). In Forti, the plaintiffs claimed, inter alia, that the Act violated the Equal
     Protection Clause because its “revolving door” rules treated former executive employees more
     stringently than former legislative employees. See id. at 878-79. The New York Court of
     Appeals rejected this argument, explaining, inter alia, that the disparate treatment could be
     justified by “the fact[] that each legislator is personally accountable to his or her constituency and
     that the Legislature itself is reconstituted every two years with an attendant change in
     membership, political orientation and priorities.” Id. at 883 (emphasis added). Honing in on
     this language, appellants argue that “change[] in [] membership” must mean a change in the
     individual members. However, the mere happenstance that the New York Court of Appeals used
     the word “membership” in the latter context to mean change in the legislature’s individual
     members carries little, if any, weight with respect to the proper interpretation of New York
     Municipal Home Rule Law § 23(2)(b), which was not even remotely at issue in Forti. Moreover,
     even assuming that a change in “membership” encompasses a mere change in the individual
     members, Forti reinforces our conclusion that the November 2009 election, not Local Law 51, is
     what will affect that change. See Forti, 554 N.E.2d at 883 (referring to a change in membership
     every two years as a result of elections).

                                                      47
 1                  3. No public servant shall use or attempt to use his or her position
 2                  as a public servant to obtain any financial gain, contract, license,
 3                  privilege or other private or personal advantage, direct or indirect,
 4                  for the public servant or any person or firm associated with the
 5                  public servant.
 6
 7   City Charter § 2604(b)(2)-(3) (N.Y. Legal Publ’g Corp. 2001). Rule 1-13(d) provides that “[i]t

 8   shall be a violation of City Charter § 2604(b)(2) for a public servant to intentionally or

 9   knowingly[] . . . aid, induce or cause another public servant to engage in conduct that violates any

10   provision of City Charter § 2604.” N.Y. Board of Conflicts Rule 1-13(d), available at

11   http://www.nyc.gov/html/conflicts/downloads/pdf3/Rules%20Amendments%20by%20Rule%20

12   Number/1_13.pdf.

13          Prior to voting on Local Law 51, Council Members de Blasio and James and Public

14   Advocate Gotbaum filed an inquiry with the City of New York Conflicts of Interest Board (the

15   “Board”), requesting an advisory opinion as to whether Council Members and the Public

16   Advocate would violate these provisions by voting on the bill. On October 15, 2008, the Board

17   issued Advisory Opinion No. 2008-3 (“Advisory Opinion”), holding that Members of the City

18   Council would not violate the conflict rules by voting on Local Law 51. Specifically, it held:

19                  [I]t is the Board’s view that their official actions in participating in
20                  a legislative process that might yield them this arguable benefit [of
21                  an extra term] would not confer upon them any “private or
22                  personal advantage” within the meaning of Charter Section
23                  2604(b)(3), nor would it constitute a “private interest” in conflict
24                  with the proper discharge of their official duties in violation of
25                  Charter Section 2604(b)(2).
26
27   Id. at 773. The Board concluded that “it is squarely within the proper discharge of Council

28   Members’ official duties as legislators (and, in Ms. Gotbaum’s case, as an elected official whose

29   duties include presiding over the Council) for them to vote upon, and otherwise participate in the


                                                       48
 1   legislative process regarding, a bill lawfully pending before the Council.” Id. It wrote, “while

 2   term-limited elected officials may have a personal political interest in the Bill’s outcome, that

 3   interest does not fall within the ‘definable and crucial subset’ of Chapter 68 that would disqualify

 4   them from participating in consideration and possible enactment of the proposed legislation.” Id.

 5   The Board also cited Golden v. New York City Council, 762 N.Y.S.2d 410 (App. Div. 2d Dep’t),

 6   appeal denied, 793 N.E.2d 411 (N.Y. 2003), in which the Appellate Division held that the City

 7   Council had authority to enact laws regarding term limits. See id. at 775. The Board concluded:

 8   “Given this judicial authority, to hold that all Members of the Council who would arguably

 9   benefit by being enabled to run for another term are disqualified by Chapter 68 from voting on

10   such a law would deny to the people’s elected representatives one of the powers afforded them

11   by State and local law.” Id. The Board commented that, if plaintiffs’ position were correct, “it

12   [would] follow that they could not vote on any measure affecting the terms and conditions of

13   their public service as Council Members.” Id. at 776-77. But this is not the case, the Board

14   explained, as Council Members can vote on pay raises, campaign contribution limits, ethics rules

15   regarding lobbyists, etc. See id. at 777. Otherwise, it opined, “democratic government” would

16   come “to a halt.” Id.

17          Displeased with the Board’s conclusions, plaintiffs assert three causes of action in their

18   Amended Complaint seeking a declaratory judgment that defendants violated City Charter §

19   2604(b)(2) and(3) and Rule 1-13(d) by proposing and/or voting upon Local Law 51, and that the

20   Law is therefore invalid. They allege that defendants violated the conflict provisions by voting

21   on legislation that resulted in pecuniary benefits, including six-figure salaries, substantial benefits

22   package and additional annual financial allowances. They also allege that defendants will gain


                                                       49
 1   an “increase in the political cache wrought by additional years spent in the public eye, which

 2   unquestionably serves to increase future political and employment prospects for these public

 3   servants.” See id. at 111, 112 (Pls. Am. Complt. ¶¶ 317, 322). With respect to Mayor

 4   Bloomberg, plaintiffs allege that “[t]he Mayor’s political dealings to guarantee the passage and

 5   enactment of the Term-Limits Amendment, including, but not limited to, his deal with Ronald

 6   Lauder and City Council Speaker Christine Quinn, also involved the use of his position to confer

 7   upon himself other direct and indirect forms of ‘financial gain’ and ‘private or personal

 8   advantage.’” Id. at 112 (Pls. Am. Complt. ¶ 323).

 9          The District Court held that a private right of action existed under Chapter 68 of the

10   Charter, but dismissed plaintiffs’ claims essentially for the reasons stated by the Board in its

11   Advisory Opinion. See Molinari v. Bloomberg, 596 F. Supp. 2d 546, 577-82 (E.D.N.Y. 2009).

12   In doing so, the court gave considerable weight to the conclusions of the Board. See id. at 579-

13   80. Appellees argue that the District Court was correct on the merits but contend that we need

14   not reach these questions because no private right of action exists under Chapter 68 of the City

15   Charter.

16          Assuming, without deciding, that a private right of action exists under Chapter 68 of the

17   City Charter, we hold that the District Court properly dismissed plaintiffs’ claims under City

18   Charter § 2604(b)(2) and(3) and Rule 1-13(d). First, we note that the District Court properly

19   deferred to the Board’s conclusions. See DiLucia v. Mandelker, 493 N.Y.S.2d 769, 771 (App.

20   Div. 1st Dep’t 1985) (noting that the Board’s “opinions should be given considerable weight by

21   the courts. . . . [T]he conclusion is plain that absent a clear showing to the contrary, advisory

22   opinions of such agencies should be given great deference and validity.”), aff’d for reasons stated


                                                      50
1   below, 501 N.E.2d 32 (N.Y. 1986). Here, plaintiffs have failed to make a “clear showing” that

2   the Board was incorrect.

3           The cases and Board opinions cited by appellants make this clear. In each one, the

4   interest served by the public servant’s official actions resulting in a conflict was a personal,

5   private interest, not an interest in the terms and conditions of his or her public office.19


            19
                See Baker v. Marley, 170 N.E.2d 900 (N.Y. 1960) (finding violation where mayor
    participated in meetings of village board, which adopted resolutions leading to the condemnation
    of various parcels of real property, including one owned by the mayor from which he stood to
    gain financially); Zagoreos v. Conklin, 491 N.Y.S.2d 358, 363-64 (App. Div. 2d Dep’t 1985)
    (finding violation where determinative votes on construction-related applications to town and
    zoning boards were cast by board members who were employees of the construction company);
    Tuxedo Conservation & Taxpayers Ass’n v. Town Bd. of Town of Tuxedo, 418 N.Y.S.2d 638
    (App. Div. 2d Dep’t 1979) (finding violation where town-board member voted on a multi-million
    dollar construction project from which his advertising company stood to gain financially); In re
    Sanders, Jr., COIB Case No. 2005-442 (May 31, 2007) (finding violation where New York City
    Council Member, having married his Chief of Staff, continued to employ her in that capacity, as
    his subordinate, in direct violation of the City’s conflict of interest provision); In re Sass, COIB
    Case No. 98-190 (June 29, 1999) (finding violation where Director of Administration of the
    Manhattan Borough President’s Office used her position to authorize the hiring of her own
    private company to clean the Borough President’s offices); In re Ross, COIB Case No. 97-76
    (Dec. 22, 1997) (finding violation where Assistant District Attorney issued a false grand jury
    summons to a police officer to interfere with his scheduled testimony against the Assistant’s
    husband in traffic court on the same day); Advisory Opinion 94-17 (July 11, 1994) (advising that
    member of City commission should not vote on an application submitted by a private company
    for a project that a not-for-profit corporation with which he had a financial relationship publicly
    supported); Advisory Opinion 93-21 (July 12, 1993) (advising that a Council Member was not
    permitted to nominate a family member for appointment to a community board because it could
    create an appearance that the Council Member was securing a private advantage for someone
    with whom he or she was associated); Advisory Opinion 90-04 (April 16, 1990) (advising then-
    Mayor of the City of New York to recuse himself from matters before the Board of Estimate
    concerning the renewal of two Manhattan cable franchises in which Time Warner, Inc. had an
    interest because the Mayor had an indirect financial interest in Time Warner); cf. George v. City
    of Cocoa, Fla., 78 F.3d 494, 498 (11th Cir. 1996) (holding that city council member in Florida
    did not have conflict barring him from voting on a redistricting plan because of his political
    interests as an incumbent planning to run for reelection in one of the new single member
    districts, reasoning, inter alia, that every one of the incumbent city council members had such an
    interest and it would be “absurd” to interpret Florida’s voting conflicts statute in such a way that
    would disqualify all members of legislative bodies from participating in legislative redistricting

                                                      51
 1   Appellants rely heavily upon Advisory Opinion, 95-24 (Oct. 30, 1995), but that opinion is

 2   inapposite. It advises only that Council Members may use City employees and resources in

 3   conducting non-partisan voter registration drives, as long as no partisan political activity is

 4   conducted during the drives which would promote the interests of a particular Council Member,

 5   elected official or candidate for elective office. The Board opined that “if the voter registration

 6   drives were to be used to promote the political campaign of Council Members or others, it would

 7   constitute a conflict of interest for the Council Members to ask their aides to participate in such

 8   drives . . . . ” J.A. 619.

 9           Appellants cite this opinion for the proposition that City Council Members can violate the

10   City Charter’s conflict of interest provisions when engaging in purely political activity. As is

11   clear, this opinion relates to the use of public monies for private campaigns and has nothing at all

12   to do with the present case.

13           Plaintiffs stress that Local Law 51 is particularly egregious because it provides a one-time

14   benefit to those who voted for it. However, as noted supra, Local Law 51 does not contain a

15   sunset provision; it merely states that it can be repealed by a subsequent referendum.

16           Finally, plaintiffs rehash their allegations regarding Mayor Bloomberg’s communications

17   with Mr. Lauder. However, as the District Court stated, even if these allegations were true, they

18   would not establish a violation of Chapter 68. “The Mayor’s alleged ‘benefit’ was a former

19   opponent’s support for a piece of legislation, not a personal or financial reward in his private

20   capacity.” Molinari, 596 F. Supp. 2d at 580. We agree.

21           Accordingly, the District Court properly dismissed plaintiffs’ claims under City law


     decisions).

                                                      52
 1   alleging that defendants had a conflict of interest in violation of sections 2604(b)(2) and (3) of

 2   the City Charter and Rule 1-13(d).

 3                                              CONCLUSION

 4           Local Law 51 has no doubt stirred controversy. Some feel that it disregards the will of

 5   the people as expressed by the 1993 Voter Initiative and 1996 Referendum. That may be a

 6   justifiable reaction. But it is not the role of this Court to interject itself into city politics. We

 7   shall only adjudicate the constitutional and legal claims properly before us, which we have

 8   analyzed exhaustively.

 9           For the foregoing reasons, we AFFIRM the District Court’s judgment granting

10   defendants’ motion for summary judgment and dismissing plaintiffs’ Amended Complaint.




                                                        53
