
    [777 NE2d 235, 748 NYS2d 343]
    In the Matter of Peter M. Rivera et al., Appellants, v Pedro Espada, Jr., Respondent, et al., Respondents, and The Senate of the State of New York et al., IntervenorsRespondents.
    Argued August 28, 2002;
    decided August 30, 2002
    
      POINTS OF COUNSEL
    
      Stanley Kalmon Schlein, Bronx, for appellants.
    I. The jurisprudence of the Speech or Debate Clause in New' York State does not support the Appellate Division’s expanded view. (People v Ohrenstein, 77 NY2d 38; Campaign for Fiscal Equity v State of New York, 179 Misc 2d 907; 2BD Assoc. Ltd. Partnership v County Commrs. for Queen Anne’s County, 896 F Supp 528; Forrester v White, 484 US 219; Hutchinson v Proxmire, 443 US 111; People v Seaberg, 94 NY2d 1; Green v Montgomery, 95 NY2d 693; Oates v Marino, 106 AD2d 289; Matter of Pell v Board of Educ., 34 NY2d 222; United States v Lynch, 162 F3d 732.) II. There is no extrinsically determinable legislative intent for Election Law § 16-110 (2); the court below accepted a total misrepresentation of the statute’s legislative history. (Clark v Rose, 379 F Supp 73; Rosario v Rockefeller, 410 US 752; Matter of Zuckman v Donohue, 191 Misc 399, 274 App Div 216, 298 NY 627; Matter of Mendelsohn v Walpin, 197 Misc 993.) III. There is sufficient evidence in the record to cancel the Democratic Party enrollment of Pedro Espada, Jr. (Matter of Cruz v Espada, 176 AD2d 101; Matter of Buchanan v Espada, 
      230 AD2d 679, 88 NY2d 973; Matter of Acosta v Wollett, 55 NY2d 761; Matter of Rodriguez v Goord, 260 AD2d 736; Matter of Brennan v Grabowski, 47 AD2d 653; Matter of Greenberg v Cohen, 173 Misc 405; Warren County Conservative Party v Girard, 78 Misc 2d 964; Matter of McAuliffe v Senn, 97 AD2d 745, 62 NY2d 763; Matter of Bell v Brignola, 260 App Div 815; Matter of Newkirk [Lisandrelli], 144 Misc 765.) IV. The First Amendment guarantees the right of a political party to limit membership to those who share the interests and principles of the party. (Tashjian v Republican Party of Conn., 479 US 208; Kusper v Pontikes, 414 US 51; Democratic Party of U.S. v Wisconsin ex rel. La Follette, 450 US 107; California Democratic Party v Jones, 530 US 567; Eu v San Francisco County Democratic Cent. Comm., 489 US 214; Ray v Blair, 343 US 214; Nader v Schaffer, 417 F Supp 837; Matter of Newkirk [Lisandrelli], 144 Misc 765; Matter of Mendelsohn v Walpin, 197 Misc 993, 277 App Div 947, 301 NY 670.)
    
      Lewis & Fiore, New York City (David L. Lewis of counsel), for Pedro Espada, Jr., respondent.
    I. Bias of the tribunal reflected in published remarks and other action require annulling of the determinations. (Matter of Washington County Cease v Persico, 120 Misc 2d 207, 99 AD2d 321, 64 NY2d 923; People ex rel. Coffey v Democratic Gen. Comm. of Kings County, 164 NY 335; Wilcox v Supreme Council of Royal Arcanum, 210 NY 370; Matter of Hughes v Suffolk County Dept. of Civ. Serv., 74 NY2d 833, 942; Matter of Nieves v Coughlin, 157 AD2d 943; Commonwealth Coatings Corp. v Continental Cas. Co., 393 US 145; Matter of Baar & Beards [Oleg Cassini, Inc.], 37 AD2d 106, 30 NY2d 649; Matter of Labor Relations Section of N. N.Y. Bldrs. Exch. v Gordon, 41 AD2d 25; Matter of Cross Props. [Cimbel Bros.], 15 AD2d 913, 12 NY2d 806; Casterella v Casterella, 65 AD2d 614.) II. The multiple violations of the Speech or Debate Clause should have voided the party decision and the Supreme Court’s failure to see both the majority conference press conference and the seating of Senator Espada in the conference and on the senate floor as covered by article III (§ 11) of the State Constitution allowed the utilization of privileged speech and acts against Senator Espada to support this otherwise unsupportable decision. (Oates v Marino, 106 AD2d 289; Davis v Passman, 442 US 228; Powell v McCormack, 395 US 486; Supreme Ct. of Va. v Consumers Union of U.S., 446 US 719; Gravel v United States, 408 US 606; Campaign for Fiscal Equity v State of New York, 179 Misc 2d 907, 265 AD2d 277; Tenney v Brandhove, 341 US 367; People v 
      
      Ohrenstein, 77 NY2d 38; Doe v McMillan, 412 US 306; United States v Johnson, 383 US 169.) III. The evidence presented against Senator Espada was insufficient to meet the burden of proof under Election Law § 16-110 (2) which was designed to prevent party raiding by newcomers seeking to usurp the party they recently joined in favor of their prior political party. (Matter of Greenberg v Cohen, 173 Misc 405; Warren County Conservative Party v Girard, 78 Misc 2d 964; Matter of Zuckman v Donohue, 298 NY 627; Matter of Ingersoll v Heffernan, 188 Misc 1047, 297 NY 524; Rosario v Rockefeller, 410 US 752; Matter of Werbel v Gernstein, 191 Misc 275, 273 App Div 917; Matter of Newkirk [Lisandrelli], 144 Misc 765; Matter of Goldshein v D’Angelo, 27 NY2d 658; Matter of Mendelsohn v Walpin, 197 Misc 993; Eccles v Gargiulo, 497 F Supp 419.) IV. The Appellate Division’s construction of Election Law § 16-110 (2)’s limited use was designed to save it from being held unconstitutional as applied to Senator Espada. (New York Trust Co. v Eisner, 256 US 345; Clark v Rose, 379 F Supp 73; Matter of Zuckman v Donohue, 298 NY 627; Matter of Werbel v Gernstein, 191 Misc 275, 273 App Div 917; Connally v General Constr. Co., 269 US 385; People v Smith, 44 NY2d 613; United States v Harriss, 347 US 612; Groyned v City of Rockford, 408 US 104; Kolender v Lawson, 461 US 352; Papachristou v City of Jacksonville, 405 US 156.) V. Senator Espada testified under oath as to his principles. (Matter of Zuckman v Donohue, 274 App Div 216, 298 NY 627; Matter of Mendelsohn v Walpin, 197 Misc 993.) VI. The dissent’s adoption of petitioners-appellants’ reading of 50-year-old case law is erroneous. (Matter of Werbel v Gernstein, 191 Misc 275, 273 App Div 917.) VII. The dissent’s interpretation of the federal cases as to the power of a party to disassociate is erroneous and creates a barrier to the First Amendment rights of Senator Espada rendering unconstitutional the cancellation of enrollment and Election Law § 16-110 (2) as unconstitutional as applied to Senator Espada. (Republican Party of State of Conn, v Tashjian, 599 F Supp 1228, 770 F2d 265, 479 US 208; California Democratic Party v Jones, 530 US 567; Timmons v Twin Cities Area New Party, 520 US 351; Eu v San Francisco County Democratic Cent. Comm., 489 US 214; Democratic Party of U.S. v Wisconsin ex rel. La Follette, 450 US 107; National Assn, for Advancement of Colored People v Alabama ex rel. Patterson, 357 US 449; Bush v Gore, 531 US 98; McPherson v Blacker, 146 US 1; United States Civ. Serv. Commn. v National Assn. of Letter Carriers, 413 US 548; Ray v Blair, 343 US 214.)
    
      
      John Ciampoli, Albany, and Leahey & Johnson, P.C., New York City (Peter James Johnson, Peter James Johnson, Jr., and James P. Tenney of counsel), for intervenors-respondents.
    The Appellate Division’s order should be affirmed, the petition should be denied and the proceedings should be dismissed with prejudice because the Supreme Court lacked subject matter jurisdiction to review the intraparty determination because the petition and the Heastie hearing were riddled with legislative acts including immunized speech, documents, communications and rules shielded from judicial review by the “Speech or Debate Clause” set forth in article III (§ 11) in harmony and consonance with the legislative grants of power in article III (§§ 1, 9). (Matter of Straniere v Silver, 218 AD2d 80, 89 NY2d 825; Matter of Board of Educ. v City of New York, 41 NY2d 535; United States v Johnson, 383 US 169; Eastland v United States Servicemen’s Fund, 421 US 491; Gravel v United States, 408 US 606; United States v Brewster, 408 US 501; Tenney v Brandhove, 341 US 367; Kilbourn v Thompson, 103 US 168; People v Ohrenstein, 77 NY2d 38; People v Abrahams, 40 NY2d 277.)
   OPINION OF THE COURT

Per Curiam.

This appeal concerns the interpretation of Election Law § 16-110 (2), allowing cancellation of the enrollment of a member of a political party after a finding that the party enrollee is not in sympathy with party principles. Because we conclude that the political party’s determination was based both on evidence subject to immunity conferred by the Speech or Debate Clause of the New York State Constitution (art III, §11) and on independent nonprivileged evidence, we reverse the order of the Appellate Division and remit for further proceedings consistent with this opinion.

On February 4, 2002, Pedro Espada, Jr., a Democratic State Senator from the 32nd Senatorial District in Bronx County, publicly announced at a press conference called by Senate Republicans, his intention to change his party affiliation and join the Republican Party. He joined the State Senate’s Republican Conference, declaring his “political emancipation” from the Democratic Party. At a televised press conference, Senator Espada “affirm [ed] and declare [d]” his intent to enroll as a Republican. He later made a number of other statements to the print and broadcast media evincing his intention to enroll as a Republican. A Republican National Committee letter announced the event. Additionally, a number of Republican Web sites characterized Espada as a new party member, and he discussed his intended new affiliation on a local radio show.

Despite his declared intention, Espada ultimately deferred his enrollment in the Republican Party. In a New York Times article, he explained: “I learned that it would take a year for my change in registration to take effect * * * [s]o I have opted to file the papers to run in the Democratic primary. * * * I will re-enroll as a Republican at a later time, maybe even later this year.”

In April 2002, Democratic Party members filed a written complaint with the Bronx Democratic County Committee seeking the cancellation of Senator Espada’s party enrollment. The County Committee conducted a hearing concerning the cancellation of Espada’s enrollment, and on July 10, 2002, a determination was made concluding that Espada was not in sympathy with the principles of the Democratic Party and he was expelled from the party.

Petitioners thereafter filed an application in Supreme Court, seeking an order to direct the Board of Elections to cancel Espada’s party enrollment pursuant to Election Law § 16-110 (2). Supreme Court granted the petition and cancelled his Democratic enrollment. Espada appealed and the Appellate Division reversed on the law (297 AD2d 251 [2002]), holding that evidence of privileged legislative activity was improperly received at the hearing thus tainting the entire determination, and, in any event, that the determination was not “just.” Accordingly, the Court not only reversed, but also dismissed the petition and ordered that Espada’s Democratic enrollment be reinstated. Two Justices dissented finding that Espada’s unprivileged statements and conduct were sufficient to support the petition. Petitioners appeal to this Court as of right pursuant to CPLR 5601.

As a threshold issue, respondents and intervenors attempt to limit the scope and applicability of section 16-110 (2) to the prevention of “raids” on political parties. Contrary to respondents’ assertions, neither a plain reading of the statute, nor our case law limits section 16-110 (2)’s applicability to party raiding (see generally Matter of Zuckman v Donohue, 191 Misc 399, mod 274 App Div 216 [3d Dept], affd 298 NY 627 [1948]).

Respondents and intervenors are correct in noting the involvement of the Speech or Debate Clause of the New York State Constitution. It provides: “For any speech or debate in either house of the legislature, the members shall not be questioned in any other place” (NY Const, art III, § 11). A legislator is therefore afforded immunity from any proceeding challenging lawful action taken in his or her official capacity (see People v Ohrenstein, 77 NY2d 38, 53-54 [1990]).

A review of the record before us indicates that the hearing evidence, as well as the findings and conclusions of the Chair of the Bronx Democratic County Committee before whom the hearing was held, were significantly based upon actions that were constitutionally immune from sanction. The record reveals there was substantial hearing testimony regarding Senator Espada’s participation in Senate Majority Conference activities, his voting record on legislation, the change in his seating in the Senate Chamber and other legislative conduct. This conduct was privileged and should not have been considered in the party Chair’s determination. To the extent that Espada’s expulsion was based on such acts, it cannot stand.

We disagree, however, with the Appellate Division majority’s determination that Espada’s unprotected conduct was insufficient as a matter of law to merit expulsion. The law is clear that the Speech or Debate Clause is not so broad as to protect “acts which a legislator performs to secure support in the community or to insure reelection, such as giving speeches in the community [and] issuing newsletters and press releases” (People v Ohrenstein, 77 NY2d 38, 54 [1990]; see also Hutchinson v Proxmire, 443 US 111 [1979]). It is this type of other non-legislative activity that must be examined here.

Election Law § 16-110 (2) assigns the task of determining whether a voter “is * * * in sympathy with the principles” of his or her political party to a leader of that party — the County Committee Chair — and limits courts to deciding whether this determination is “just.” This division of responsibility reflects a legislative choice not to involve courts in determining party “principles.” Thus, the court’s role is to ensure that the County Committee Chair reaches a decision on the basis of sufficient evidence and does not consider inappropriate factors.

In Matter of Mendelsohn v Walpin, Supreme Court, in determining whether a voter was in sympathy with the purpose of a potential party, and whether the determination of a party leader was just, noted:

“In so holding I do not mean that a voter may not change his party as he sees fit; that he may not enter a party for the sole purpose of seeking nomination and election; that he may not disagree with the party in its choice of candidates; that he may not criticize the party leadership and try to change it; or that he may not even oppose candidates of the party in an election. He may do any or all of these things and still remain a member of the party provided he is in reality in sympathy with its principles. But where, as I think it has been conclusively shown here, a man is not in reality in sympathy with the principles of a party he is not entitled to enroll in order to further his ulterior motives” (197 Misc 993, 1000, affd 277 App Div 947, affd 301 NY 670 [1950]).

Limiting the record before us to statements and conduct not sheltered by the Speech or Debate Clause, a finder of fact might well conclude that Espada was out of sympathy with the principles of the Democratic Party. The record contains evidence, from several public sources, of repeated and consistently maintained statements denouncing the Democratic Party, that could support such a conclusion. We do not assume that the proper finder of fact would or should accord the greatest weight to Espada’s choice ultimately not to change his party enrollment.

However, the proper finder of fact to make this determination is the County Committee Chair. Here, we cannot say what the Chair would have decided on a record purged of statements and conduct sheltered by the Speech or Debate Clause. Such a record would exclude the evidence that relates solely to Espada’s legislative acts or Majority Conference participation.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the matter remitted to Supreme Court with direction to remit to the Chair of the Bronx Democratic County Committee for redetermination.

Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley and Graffeo concur in per curiam opinion; Judge Rosenblatt taking no part.

Order reversed, without costs, and matter remitted to Supreme Court, Bronx County, for further proceedings in accordance with the opinion herein. 
      
       Election Law § 16-110 (2) provides, in pertinent part, that
      “The chairman of the county committee of a party with which a voter is enrolled in such county, may, upon a written complaint by an enrolled member of such party in such county and after a hearing * * * determine that the voter is not in sympathy with the principles of such party. The Supreme Court or a justice thereof within the judicial district, in a proceeding instituted by a duly enrolled voter of the party * * * shall direct the enrollment of such voter to be cancelled if it appears from the proceedings before such chairman or sub-committee, and other proofs, if any, presented, that such determination is just” (emphasis added).
     