to inquiries, see, e.g., 1975 N.Y. State Bd. of Elections Opinion # 13, 1976 N.Y. State Bd. of Elections Opinion #5. The Board also noted that it responds to “telephone requests for informal advice as to whether an entity constitutes a political committee.” Bucki letter, at 1.
In Vermont Right to Life Committee, State officials sought to preclude a pre-enforcement challenge on the ground that they had no intention of enforcing challenged regulations against the plaintiff. 221 F.3d at 383. We properly rejected the State’s claim that the plaintiff’s fear of suit was not well-founded because “there is nothing to prevent the State from changing its mind.” Id. The majority contends that the pending case “is no different from Vermont Right to Life Committee, [Op. P. 690] but that assertion overlooks a crucial difference between that case and ours. Not only does the Board of Elections stand ready to advise NOM whether it is considered to be a “political committee,” but the Board recognizes that, in the event that it advises that NOM is not a “political committee,” the Board may not change its mind without giving NOM the prior notice required by Williams v. Sclafani, 444 F.Supp. 906, 912 (S.D.N.Y.1978); aff’d sub nom. Williams v. Velez, 580 F.2d 1046 (2d Cir.1978). Furthermore, if the Board were unreasonably to delay either its response to NOM’s inquiry or its notice of a change of mind, that circumstance would surely warrant NOM’s prompt return to court. See Hirschfeld v. Board of Elections of City of New York, 984 F.2d 35, 40 (2d. Cir.1993) (prohibiting elections board to change its mind after undue delay). Thus, it is simply not so, as the majority contends, that “NOM would have no warning of imminent enforcement by the Board of Elections, beyond NOM’s own knowledge that it was violating the law.”[1] [Op. P. 691]
Instead of obliging NOM to inquire of the Board of Elections whether it is a “political committee,” the majority returns this case to the District Court for a ruling on NOM’s constitutional claims. That course, and the inevitable appeal, will likely precipitate far-reaching constitutional rulings that would be entirely avoided if the Board of Elections determines, upon a proper inquiry, that it does not consider NOM to be a “political committee.”
No doubt NOM would be interested in knowing whether New York would violate the First Amendment if the Board of Elections, if asked, were to determine that NOM was a “political committee,” but Federal courts do not sit to satisfy litigants’ intellectual curiosity. I respectfully dissent.
Patrick CARIOU, Plaintiff-Appellee,
v.
Richard PRINCE, Defendant-Appellant,
- ↑ The majority’s footnote 8 observes that an inquiry by NOM to the Board of Elections is not required “before an organization can be labeled a ‘political committee.’ ” Quite so. But the absence of a state law inquiry requirement is entirely irrelevant to whether federal court ripeness requirements oblige a plaintiff to take advantage of an available inquiry procedure before launching a pre-enforcement challenge.
