Posted by: Patricia Salkin | June 1, 2009

NY Court of Appeals Set to Hold Oral Arguments On Whether Subpoena May be Issued to Private Citizen Who Misrepresented Letter at Hearing

Virginia Parkhouse, a volunteer with a Manhattan architectural preservation group called Landmark West!, attended an October 2006 public hearing held by the Landmarks Preservation Commission to determine whether to give landmark status to the Dakota Stables and New York Cab Company Stables on the Upper West Side. She signed in as a representative of Landmark West!, but when it came her turn to speak, she said, “I’m volunteering today to read the statement of Borough President Scott Stringer.” She then read from a letter Stringer sent to the Commission two months earlier, in which Stringer discussed the architectural significance and historical importance of the stables. He had written, “Both are historic fixtures of Manhattan’s Upper West Side and should be preserved…. I ask that you move to calender these two buildings [for public hearing] and protect an important part of the history of the development of the Upper West Side.” Parkhouse omitted Stringer’s requests to calendar the matter, which the Commission had done, and added a phrase to the last quoted sentence asking it to “landmark these buildings.” She then submitted a copy of the letter with her handwritten changes.                                                        

Stringer had not authorized Parkhouse to represent him and he had apparently changed his mind about preserving one of the stables, after learning it had been partially demolished. His counsel wrote to the Commission that Parkhouse did not have Stringer’s permission to present his views or alter his letter. The counsel said, “Such conduct is highly inappropriate and, if pursued with the intent to mislead, a potential violation of [Penal Law190.25] proscribing criminal impersonation, an offense that includes acting with intent to cause another to rely upon pretended official authority.” The Commission filed a complaint against Parkhouse with the City’s Department of Investigation (DOI), saying she had misrepresented Stringer’s letter.

The DOI began an investigation and subpoenaed Parkhouse to testify about the matter. She moved to quash the subpoena on constitutional free speech grounds, among other things, arguing it would have a chilling effect on political speech. Supreme Court denied her motion and granted DOI’s cross-motion to compel compliance with the subpoena.

The Appellate Division, First Department affirmed, saying DOI’s “investigation is not aimed at the content of petitioner’s speech…. Here, DOI is examining [the Landmarks Commission’s] procedures, which, as they stand, could allow citizens to misrepresent their affiliations with public officials or other groups and undermine the legitimacy and efficacy of the public hearing process.” It said Parkhouse “does not have a constitutionally protected right to disseminate false information in a public forum….” Even if the investigation were aimed at the words she spoke at the hearing, the court said, “it is motivated by a permissible content-neutral purpose…, namely to investigate and recommend changes to [the Commission’s] current practices and procedures.”

Parkhouse says, “Using the machinery of government to compel a citizen to explain her testimony at a public hearing is a direct violation of her constitutional rights.” She contends that DOI’s investigation of the Commission’s procedures “is pretext for threatening criminal sanctions against [her] for her inadvertent exposure of the Borough President’s reversal of position.” Even if she had claimed to speak for him or deliberately misrepresented his position, she says, “It is not the role of government to police ‘false doctrine.’ That object is left to the natural process of free speech to correct itself in the marketplace of ideas….”

 Matter of Parkhouse v. Stringer [Abstract prepared by the Court of Appeals Public Information Office]

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