| All-County Taypayers Association | "The
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| STATE OF NEW YORK SUPREME COURT - ALBANY COUNTY _____________________________________________ ROBERT L. SCHULZ, AMENDED VERIFIED - against - Index No. 5545-98 GEORGE E. PATAKI, in his individual capacity and ROBERT L. SCHULZ, alleges: 1. This is a declaratory judgment action pursuant to CPLR 3001, a taxpayer action pursuant to Article 7A of the State Finance Law and a proceeding pursuant to Article 78 of the CPLR and a civil rights action pursuant to the First and Fourteenth Amendments to the United States Constitution and 42 USC Section 1983 et. seq. 2. The relief requested herein is a final order: a) declaring that the distribution of forty thousand or more free passes to the State Fair and forty thousand or more free lift passes to the State’s Whiteface Mountain Ski Center was violative of the provisions of the NY Constitution which prohibit "gifting" of State resources and "payment without appropriation by law," and violative of plaintiff’s fundamental right to an election free from governmental interference and corruption, and b) directing George Pataki and/or Friends of Pataki ’98 to pay the State Treasury $1.8 million plus the cost of printing and mailing the State Fair passes and the passes to Whiteface Mountain and the more than 20,000 letters that were mailed over the signature of Governor George Pataki on or about July 30, 1998, and c) for such other and further relief as to the court may seem just and proper.
PARTIES 3. Robert L. Schulz is a citizen of New York State. He resides in the Town of Fort Ann, Washington County. His mailing address is 2458 Ridge Road, Queensbury, New York 12804. He is an individual taxpayer and property owner liable to pay taxes upon an assessment of more than $1,000 in the Town of Fort Ann, Washington County, and in Queensbury, Warren County, New York. He pays State income, sales and compensating use taxes. He pays federal taxes. He is a registered voter registered to vote in the Town of Fort Ann, Washington County, New York. He voted in the last general election in New York State. He is eligible to vote in the next general election in New York State. 4. George E. Pataki is the duly elected Governor of the State of New York. His current term of office expires on December 31, 1998. He is actively campaigning for re-election to the office of Governor. He is on the statewide ballot, having been designated by the Republican and Conservative parties. The general election is scheduled for November 3, 1998. 5. Friends of Pataki (also known as Pataki ’98) is a private, political campaign committee created by or on behalf of and authorized by George Pataki to assist and take part in his bid for re-election. The principal office of Friends of Pataki ’98 is located at 355 Lexington Avenue, New York, NY 10017.
PRELIMINARY STATEMENT 6. The election pollsters show Governor Pataki leading his nearest rival by a margin greater than 2:1. He is, however, as a potential candidate for the office of President of the United States, using every opportunity to capitalize on the power, prestige and resources of his office and contributions to his campaign, to entice voters to vote for him so that he might win the election by a margin that is, historically, without parallel. 7. On information and belief, in 1998, -- the eve of the election -- most day-to-day activities of George Pataki, the Governor, are discussed, planned, executed and coordinated with his political party (the Republican State Committee) and all political committees created by or on behalf of George Pataki, including Friends of Pataki. It would be incredible were this not the case. 8. On information and belief, all political appointees of the Governor (approximately 2500), including all administrators of state agencies, departments and public authorities, have been charged by the Governor’s office with doing whatever they can do to take advantage of every opportunity to publicize the Governor, at state expense, in a way favorable to his poll ratings and to entice more votes for him. 9. On information and belief, certain expenses associated with the partisan "vote getting" activities for the Governor are being disguised as State expenses under the pretense of "caring for the people." The wasting of the fruits of the people’s labor under the pretense of caring for them is, unfortunately, an all too frequent occurrence in government. 10. The act of the Governor, and Friends of Pataki, which is the subject of this lawsuit, is but one example of the adverse effect of co-mingling private agendas with the public good and the influence this has on the day-to-day activities of elected officials. 11. George E. Pataki is the governor of the State of New York. For all intents and purposes, George E. Pataki is also Friends of Pataki, a political committee established for, created and controlled by George Pataki. All major expenditures by Friends of Pataki are approved by George Pataki. Therefore, Friends of Pataki was as guilty as George Pataki in the wrongful act of having the State rather than the Governor in his personal capacity, or Friends of Pataki, pay for the mailing of the letter and distribution of the free tickets which are the subject of this lawsuit. No veil, corporate or conceptual, can shield them from the analysis which results in the charges set forth in this complaint. Logic demands it. Friends of Pataki cannot take refuge in any supposed detachment from George Pataki, the person who is seeking re-election. 12. Undeniably, Friends of Pataki is as legally responsible and otherwise liable for the costs of the alleged misconduct by the Governor (undertaken by the Governor on behalf of the Governor), to aid his re-election efforts. 13. Undeniably, Friends of Pataki was in a position to purchase the tickets and pay the cost of distributing them, on behalf of the candidate, or to otherwise exercise control over the governor’s behavior in this regard. Consequently, it is "just" to impose such liability. 14. Friends of Pataki should not, of course, be exercising control in any way over George Pataki in his role as Governor, making day-by-day determinations in the affairs of state. However, when it comes to politicking, campaigning, and vote enticement, Friends of Pataki is George Pataki and is in a position to control this conduct and the type of maladministration that occurred when the tickets were obtained and the mailing was made. Friends of Pataki does have the right and obligation to exercise a measure of constraint over George Pataki, the candidate. In this case, however, the identities have been so submerged in each other, what Friends of Pataki do and what George Pataki does are one in the same. In effect, therefore, Friends of Pataki is liable and a necessary party to this suit. 15. In sum, Friends of Pataki, realizing what was occurring, should have said, "This is not your job as Governor. This is our job as Friends of Pataki." Pataki the Governor cannot be distinguished from Friends of Pataki in a situation where he is doing something that they should do. 16. George Pataki as Governor, and George Pataki as Friends of Pataki, have colluded, acted fraudulently and exhibited bad faith in performing the act being challenged here. George Pataki and Friends of Pataki have personally benefited from the alleged illegal act with which they are charged. 17. On information and belief, George Pataki’s tax-supported largess has purchased votes. Friends of Pataki have added to the Governor’s vote total without having to pay the cost of the $2.0 million program, which they should have done, retaining that much money to be used by the Governor in the campaign, or otherwise as he sees fit. 18. The money in the campaign chest is the Governor’s. Therefore, having Friends of Pataki pay for the transgression described in this complaint, is the same as having the Governor pay for it, which is only right and just.
STATEMENT OF FACTS 19. On or about July 30, 1998, under color of law, George E. Pataki mailed a letter at State expense, under the seal of the State of New York, to more than 20,000 private individuals. Exhibit A hereto is a photo copy of the letter. 20. Enclosed with each of the 20,000 letters were two free passes to the State Fair and two free lift passes to Whiteface Mountain, the State owned and operated ski center. Exhibit B hereto is a photocopy of each of the two passes. 21. The face value of each set of free tickets was approximately ninety-two dollars ($92), bringing the total value of the tickets mailed by the Governor to over $1.8 million. 22. On September 1, 1998, plaintiff formally requested of the Governor, under the Freedom of Information Law (FOIL), that he provide plaintiff with the names and addresses of the 20,000 recipients of his July 30, 1998 letter, along with any evidence that the public received something of corresponding value from each of the recipients. 23. On October 6, 1998, Mr. W. Brooks DeBow, Assistant Council to the Governor, responded by telling plaintiff that the information requested was on 379 pages of documents which would be made available, on computer diskettes, but that portions of those 379 pages are exempt from disclosure because if disclosed would constitute an unwarranted invasion of personal privacy. 24. On October 16, 1998, plaintiff obtained the computer diskette, only to discover, that the portions of the 379 pages withheld included all the addresses of the 20,000 people to whom the tickets were sent. And, the "documents" did not contain any information about any of the 20,000 recipients of the tickets, except each person’s name. There was no information about what work each person purportedly performed during the recovery efforts, nor was there any address identity attached to the names. 25. On information and belief, neither Governor Pataki nor Friends of Pataki made any effort to determine whether each recipient had actually participated in any of the recovery efforts or, if he did, whether the person did so of his own free will or had been ordered to do so, or whether that person had already been compensated for his time through some public or private source. 26. Exhibit C hereto contains a copy of the correspondence relating to plaintiff’s FOIL request. 27. On information and belief tickets were sent to people who did not participate in the recovery efforts at all, people who were reluctant participants who were ordered by their public and private employers to participate in the recovery effort, and people who participated but were well compensated for their efforts, including State employees who received "double and triple overtime."
FIRST CLAIM THE MASS-MAILING OF THE FREE PASSES 28. The Governor was without authority to mail free passes to the State Fair and to the ski lift at Whiteface Mountain as gifts to private individuals. 29. Neither the Constitution nor the law authorized the Governor to make such gifts. 30. Unless authorized by law, the mass distribution of the free passes was illegal.
SECOND CLAIM THE MASS-MAILING VIOLATED PLAINTIFFS’ 31. The U.S. Constitution reads in part:
"Congress shall make no law...abridging...the right of the people…to petition the Government for a redress of grievances." First Amendment 32. The First Amendment of the U.S. Constitution and Article I, Section 9 of the N.Y. Constitution expressly provide the right to petition the government. Voting rights are included. Plaintiffs have a right to a free election, i.e., an election free from governmental interference and corruption. That right was denied by defendants, as they used public funds to sway the vote for Governor and as they traded on the credit and prestige of the office of Governor while actively campaigning for re-election. 33. The New York Constitution also reads in relevant part: "The money of the state shall not be given or loaned to or in aid of any private corporation or association, or private undertaking; nor shall the credit of the state be given or loaned to or in aid of any individual, or public or private corporation or association, or private undertaking...."
Article VII, Section 8 34. George Pataki and Friends of Pataki used public funds and the credit, power and prestige of public office to sway the results of the vote for Governor by distributing over 80,000 free passes to the State Fair and to the ski lift at Whiteface Mountain. Such action is repugnant to plaintiffs’ right to an election free of governmental tampering and to Article VII, Section 8 of the New York Constitution. 35. There is to be a slate of candidates for Governor on all of the ballots in the State on November 3, 1998. The question of who is to be Governor during 1999 through 2002 is being placed before the electorate. The election will affect the nature and extent of governmental programs and governmental power. The question is a matter of concern at the moment of the people as the electorate, not the present Governor. Instead of a level playing field with a neutral government and with a free discussion of the issues by private individuals and lobbying organizations, we have had the present Governor and his political campaign committee using the might of the State’s power, money and influence, and the prestige of the office of the Governor to sway the election by buying votes. Plaintiffs do not deny that the State does have certain authority to promote volunteerism, especially in time of natural disasters, but that authority must be construed in the context of the State and Federal Constitutions. The Governor’s activities in this regard were partisan in violation of the State Constitution. 36. Use of public power, resources and prestige to propagandize for re-election, especially when his re-election is opposed by plaintiff and others of the electorate who were taxed to pay for such resources, is an abridgment of fundamental freedoms and the rights of plaintiff and those other individuals. 37. Public power, resources and prestige are to be used only for operations of government. For government officials and agencies to attempt to influence public opinion on such matters as the election inhibits the democratic process through the misuse of government power, resources and prestige. 38. Improper use of power, resources and prestige, whether directly through promotional and advertising or indirectly through the use of gifts of things of value cannot be countenanced under the State and Federal Constitutions. 39. There is no constitutional grant of power and authority to the Governor to use State resources to entice votes for his re-election. He, like all officials and agencies of government, must look to the Federal and State Constitutions and statutes to determine what is authorized. Nothing in those supreme organs of law can be considered to be a specific grant of authority to use public credit, power, resources and prestige in the (innovative) manner in which they were used. State resources simply cannot be used to sway the results of a vote by the electorate. 40. Plaintiff’s injury is in the form of the value of the vote. Value that was lost because government was improperly utilizing its influence and resources in denial of an election free from corruption. All elections ought to be free and without corruption. 41. If individual liberty is to be protected and enhanced, our right to a free election, rather than State-sponsored propaganda or vote buying, must be maintained. 42. Neither the language of any statutory authority nor the statutory scheme of our jurisprudence contemplates public officials engaging in the type of promotional activities the Governor engaged in order to secure a "landslide" re-election. 43. The spectacle of the Chief Executive trading on the credit of his public office while campaigning for or against propositions to be voted on by the public, can only demean the democratic process. Stern v. Kramarsky, 84 Misc 2d 447, 452. For government agencies to attempt to influence public opinion on such matters directly or indirectly inhibits the democratic process through the misuse of government funds and credit. Stern v Kramarsky , 84 Misc 2d 447, 452. 44. The very foundation of our political system rests on the public’s freedom of choice. It is a simple and fundamental principal of government. This case involves use of the power of the government to use public resources to sway the results of a ballot question. The danger in allowing this type of activity to continue should be painfully obvious and is antithetical to the nation’s democratic process. 45. A political cause or group cannot, in any manner nor to any extent, be allowed to become part of the state. This is, in effect, what occurs when the power of the government -- its money, credit, influence and prestige -- are used in aid of a particular political cause or party. The consequences are apparent by the examples of other nation states wherein one political cause or party also constitutes the state. The political party in power quickly and completely suppresses all other causes or parties. The argument here is not that a political party should not promote its ideas and beliefs through newsletters, television or by whatever legal means it is capable of getting out a favorable vote. However, the party should use its own financing and not public employees or resources to influence the voters. Permitting the Legislature and/or the Executive, which have access to the biggest campaign resource chest of all, to use the power of its office "solely for campaign purposes in an attempt to dominate elections, threatens the basis integrity of the democratic process and implicates important constitutional concepts of government neutrality and fair dealing." People v Ohrenstein, 77 NY2d 38 at 59 (Simons, J. Dissenting). (Footnote No. 1: Normally a dissenting opinion would not be something on which one would rely for guidance as to future decisions of a court. In Ohrenstein, however, the decision was very narrowly applied, and the majority emphasized its disapproval of the use of public resources for ballot issues that Judge Simon’s words carry special weight.) 46. Article VII, Section 8 of the New York Constitution also represents an effort "to prevent improvidence...to safeguard the credit of the state, and the interests of the people as a whole." People v Westchester County National Bank of Peekskill, 231 N.Y. 465, 474 (1921). The partisan campaign activities of the Governor is one example of the misuse of the money and the credit of the State and the type of activity from which the public needs protection. 47. The dissent in Ohrenstein comes right to the point when stating that New York and every other jurisdiction has labeled partisan political activities private, not public functions and that, therefore, the use of public power and resources for such purposes is improper. Ohrenstein at 58 (Simons, J. Dissenting) citing Matter of Phillips v Maurer, 67 NY2d 672, 673-674; Stern v Kramarsky, 84 Misc.2d 447, 451-452; see, 1981 Opns. St. Comp. No. 81-26, at 25; 1980 Pons. St. Comp. No. 80-762, at 209; 1980 Opns. St. Comp., 80-411, at 117; and see, NY Const., art. VII, sec. 8; see also, Stanson v Mott, 17 Cal.3d 206, 551 P.2d 1; Anderson v City of Boston, 376 Mass. 178, 380 NE2d 628; Burt v Blumenauer, 299 Ore. 55, 699 P2d 168; Commonwealth v Brownmiller, 141 Pa. Super. 107, 14 Ad2d 907. "It is not possible, therefore, to render a service to the public or perform ‘proper duties’ of the Legislature by working solely to elect the candidates of a particular party or to increase the power and influence of a particular political leader. Such work has no reasonable connection with serving the public." Ohrenstein at 58, 59 (Simons, J. Dissenting). 48. An analogous case further supports the contention that partisan political activities do not warrant the use of public power by trading on the credit and prestige of public office. The case involved a congressman’s mass mailing of questionnaires to voters in a congressional district where he was a candidate for election to Congress, for the purpose of promoting his candidacy. The mailing was found not to be "upon official business" under the statute granting franking privileges. Hoellen v Annunzio, 468 F.2d 522 (1972). The court in Hoellen stated that the franking privilege does not apply "...to personal or purely partisan mail..." nor does it apply to "...appeals for political support, references to what a member expects to do in the next Congress sent out before an election... discussion of a coming political campaign and reference to campaign opponents..." because they are all matters beyond the concept of "official business". Hoellen at 524. 49. It is difficult enough for citizens to relinquish money to the state, even for purposes they support and in which they believe. Citizens must also accept the fact that their money funds organizations which they oppose, when the decision to provide funding has passed through legitimate political processes. Taxpayers, however, cannot be expected to allow one political cause, group or party, such as Friends of Pataki, through a representative in a dominant political position, to expend public money, credit, time, influence or prestige for the purpose of promoting its own political purposes.
THIRD CLAIM THE FREE PASSES WERE GIFTS IN VIOLATION 50. The N.Y. Constitution reads in part: "The money of the State shall not be given or loaned to or in aid of any private corporation or association or private undertaking; nor shall the credit of the state be given or loaned to or in aid of any individual, or public or private corporation or association, or private undertaking...."
Article VII, Section 8 51. On information and belief, thousands of individuals receiving the free tickets were either not involved at all in the rescue and salvage efforts related to the ice storm which struck upstate New York during the winter of 1998, or if they were involved they were not volunteers but were paid by their private or public employers for their efforts. 52. On information and belief, the State did not receive anything of value from thousands of ticket recipients much less value corresponding to the value of the tickets. 53. The mailing of the tickets was violative of Article VII, Section 8 of the New York Constitution.
FOURTH CLAIM THE MASS-MAILING VIOLATED ARTICLE VII, 54. The N.Y. Constitution reads in part: "No money shall ever be paid out of the state treasury or any of its funds, or any of the funds under its management; except in pursuance of an appropriation by law...."
Article VII, Section 7 55. Handing out free tickets to the State Fair and to a State ski lift without appropriation by law is the equivalent of making a payment out of the funds under the care and management of the State without appropriation by law and in violation of Article VII, Section 7. The "opportunity cost" of the tickets and the preparation and mailing of the transmittal letter represent the expenditure of State funds for which there was no appropriation or budget allocation.
CONCLUSION 56. This behavior by defendants is unprecedented and should not be tolerated and steps must be taken by the Judiciary to prevent it from ever happening again. DATED: October 26, 1998 ROBERT L. SCHULZ, Pro Se |