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76 N.Y.2d 102, 556 N.E.2d 133, 556 N.Y.S.2d 840 (1990).
May 10, 1990

3 No. 110

Decided May 10, 1990

This opinion is uncorrected and subject to revision before publication in the New York Reports.

John M. Clarke, Gerald M. Oscar, Thomas J. Farrelly, David O. Simon, NY City, Lawrence H. Tribe, Cambridge, MA, for Appellant NY Telephone.
Stanley W. Widger, Jr., Jeffrey C. Parnell, Rochester, for Appellant Rochester Gas & Electric.
Richard D. Emery, Mark A. Sirota, Paul Neuborne, NY City, for Respondent Cahill.
Robert Abrams, Attorney General (Richard W. Golden of counsel) Respondent pro se.
David S. Smith, National Fuel Gas; Josephine S. Trubek, Rochester Telephone; F. Peter O'Hara, Peter M. Metzger, Brooklyn Union Gas; Peter Garam, Elizabeth S. Harding, Larry Carbone, Con Ed; Miriam Sparrow, NY Blood Center; James J. Sabella, Brenda F. Szydlo, NY Missions; Sol Neil Corbin, Marc J. Gottridge, Carolyn Schurr, NY Public Library; Owen Zuckert, United Way; Richard Cherry, NY Urban Coalition; Stanley Weithorn, Council for Aid to Education, amici curiae.


The policy of the New York Public Service Commission (PSC) authorizing utilities to pass along to ratepayers part of the cost of corporate charitable contributions is challenged on First Amendment grounds under the United States Constitution. We agree with the result in the lower courts on the merits declaring the policy unconstitution-al. The order of the Appellate Division should thus be affirmed. This Court also previously affirmed, at the threshold pleadings level, the determination that the PSC policy constituted state action (Cahill v Public Service Commn., 128 Misc2d 510, 113 AD2d 603, 69 NY2d 265, reh denied 69 NY2d 862, cert denied 494 US 829). That, of course, is the law of the case and sets the stage for the merits review here.

Prior to 1970, the PSC, as the State agency charged with plenary regulatory and rate-fixing powers over all public utilities in New York State (Public Service Law §§ 66[12]; 91[1]; 92[1]; 97[1]), did not allow recoupment from ratepayers of corporate sums given as charitable donations. These costs, in the millions of dollars, were absorbed within the particular utility's shareholder cost columns. In 1970, the PSC changed its policy and allowed reimbursement from customers through the authorized rate structure, and thus transformed these costs into and treated them as utility operating expenses. Appellants New York Telephone (NYTel) and Rochester Gas & Electric (RG&E) took advantage of the PSC's empowerment and sought retrieval of costs expended as contributions to numerous charities, including politically and religiously active organizations.

Cahill is a customer of appellant NYTel and of another utility which was a former intervenor in this case. His article 78 proceeding against the PSC and the utilities attacks this forced funding, through these publicly-regulated corporate conduits, (1) of organizations engaged in activities and causes contrary to his political or personal beliefs; (2) of religious institutions that expound beliefs inconsistent with his own; and (3) of organizations that promote the right to abortion, to which he is opposed on moral and religious grounds. The Attorney-- General also brought article 78 proceedings against the PSC and certain utilities seeking the same relief on behalf of all ratepayers. The proceedings were consolidated and are here as of right only by NYTel and RG&E, the PSC having shifted to a mute stance before this Court.

Cahill's First Amendment argument springs from his personal sense of real and perceived compulsion under the PSC policy effecting his contribution to and association with groups which advance beliefs contrary to his own and which are selected unilaterally and unrestrictedly by the utilities. The Attorney-General advances essentially the same argument on behalf of consumers generally.

The First Amendment protects the right to speak and to associate freely, as well as the right not to speak or associate. The Supreme Court, almost 50 years ago, extolled people's rights under the First Amendment freedom from governmental interference with speech or association activities (West Virginia Bd. of Ed. v Barnette, 319 US 624, 633). There, the First Amendment rights of pupils, Jehovah's Witnesses who refused to salute the flag, were upheld through the inspiring voice of Justice Jackson, whose opinion for the majority of the Court stated, in part:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us. (id., at 642).

Almost 40 years later, the Supreme Court met a man who objected to the New Hampshire motto "Live Free or Die" on his license plate (Wooley v Maynard, 430 US 705). The State argued that the motto served the state's interest by promoting an appreciation of history and state pride. The Court, harkening to Barnette (319 US 624, supra), protected the licensee's First Amendment freedom from participation in the dissemination of his state's ideological message on his license plate (see also, Elrod v Burns, 427 US 347; Buckley v Valeo, 424 US 1).

Only a month later, the Supreme Court weighed the validity of a Michigan statute that permitted "agency shop" agreements under which nonunion employees had to pay the union a fee equal to union dues (Abood v Detroit Bd. of Educ., 431 US 209). Observing that the First Amendment is implicated in such circumstances because "[a]n employee may very well have ideological objections to a wide variety of activities undertaken by the union in its role as exclusive representative" (id., at 222), the Court concluded nonetheless that interference with the employees' association rights was "constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress." (id., at 222.) The policies of labor peace and no "free riders" led the Court to hold the fee a qualifiedly permissible intrusion on the nonunion employees' First Amendment freedoms. For the first time, constitutional dispensation was accorded to an unimagined "exception" niche -- to use Justice Jackson's word in Barnette -- in the First Amendment pantheon. Even so, Abood narrowly restricted itself to fees used to finance expenditures by the union only for the purposes of collective bargaining, contract administration and grievance adjustment (431 US, supra, at 225-226). The Court critically distinguished union expenditures for political or ideological purposes unrelated to collective bargaining, reasoning that compulsory political contributions "work[] no less an infringement of [the objecting employees'] constitutional rights" than do prohibitions against such contributions (id., at 234). It then invoked Thomas Jefferson's ringing alarm that "to compel a man [or woman] to furnish contributions of money for the propagation of opinions which he [or she] disbelieves is sinful and tyrannical" (431 US, supra, at 234-235, n 31). To the extent that fees extracted from those who objected to the union's ideological viewpoint were used for political purposes, they were resoundingly condemned unanimously, with the plurality opinion expressing the rationale that this was violative of the First Amendment unless the activities were "germane to [the union] duties as collective bargaining representative" (431 US 209, supra, at 235).

Justice Powell issued the most extensive concurring opinion and agreed with the result more directly by stressing that the extracted payments for objectionable union expenditures could not withstand the traditional highest level of First Amendment scrutiny -- paramount state interest. Justice Powell challenged the coerced service fees imposed on nonunion employees as so serious an impingement of First Amendment freedoms that he lamented the plurality's failure to utter the more exacting level of scrutiny as controlling (id., 254-255).

This abridged precedential array provides a sufficiently relevant dispositional context in which to examine the two principal arguments advanced by the utilities in this case. They argue that the First Amendment freedom reflected in the pertinent cases is not available because ratepayers will never be personally identified with the ideological positions expressed through the charitable donations and entities selected by the utilities. Alternatively, they argue that even if First Amendment rights are implicated, the intrusion is minimal and should be measured against something less than a compelling or paramount state interest. They claim the "germaneness" proviso of Abood predominates, is satisfied, and controls the outcome in their favor.

We conclude that the critical inquiry starts with whether the extracted payments could reasonably be regarded by the individual ratepayer as an affirmation of or acquiescence in beliefs of the benefitted organizations, some of which beliefs happen to be anathema to the objecting ratepayer. The essence of the First Amendment impingement, as we have come to understand its modern nuanced application, is that the ratepayers are entitled to protection against forced financial support for causes and messages personally distasteful to them, because that would render those individuals faithless to their own beliefs. The monetary support here is direct, though small in amount, because it is spread across the entire rate-paying public (Teachers v Hudson, 475 US 292, 305-308). Thus, the first prong of the utilities' rationalization for its PSC-authorized actions is far too cramped. It is enough that the extracted payments impose on the ratepayers, in some measure actually and in their estimation subjectively, particular and objectionable expressions and causes of a host of organizations.

In Abood (431 US 209, supra), it was unlikely that the public would attribute to the nonunion employees the ideological or political views advanced by the union merely because of the nonunion members' compelled financial support of the union. Yet, the constitutional canopy covered the employees if they viewed the compelled contribution as an endorsement of the union's nonessential public causes (id., at 222). The parallel in the instant case is more potent. Here, ratepayers are powerless against governmentally regulated monopolies and have no place else to seek indispensable public utilities services. By that unique circumstance, they are more seriously burdened and disadvantaged than the contributing nonunion members in Abood (see, Cahill v Public Service Commn., 69 NY2d 265, supra, 272-272). In assessing the infringement on the ratepayers' freedoms, we may at least agree that while it may not be "sinful," it is surely "tyrannical", and that should be enough, with all the factors present here, to extend the First Amendment canopy (Abood v Detroit Bd. of Ed., 431 US, supra, at 234-235, n 31; see also, Austin v Michigan Chamber of Commerce, ___ US __, __ S Ct __; 58 USLW 4371, 4373; Gaebler, First Amendment Protection Against Government Compelled Expression and Association, 23 BC L Rev 995, 1016-1023).

The utilities' contingent argument that a First Amendment intrusion may be justified, in any event, by something less than a compelling state interest is an artful proposition. Did the Supreme Court in Abood displace the compelling state interest test -- the traditional strict scrutiny standard by which First Amendment intrusions are measured -- with a "germaneness test"? We do not think it did. But if it did, the utilities urge, an intrusion "germane" to some state interest will be justified and will pass constitutional muster here.

Without question, the Supreme Court plurality in Abood built its rationale first on some identified governmental interest. Only then did Justice Stewart inject the germaneness facet in his differentiated analysis of the permitted intrusion on the nonmembers' First Amendment freedoms (see also, Ellis v Railway Clerks, 466 US 435, at 455-456). In this case, therefore, no one can doubt that there is an obligation to present some sufficient state interest justifying the governmentally enforced retrieval of contributions from ratepayers. It must even be germane to the reasonable cost of doing business and to the provision of utility services. Only then can the cost be ultimately chargeable to ratepayers instead of to the corporation itself and its shareholders. The "germaneness" notion is thus inextricably interwoven into the analysis of whether the state has established some government interest and is not a substitute for a state interest component (see, Cantor, Forced Payments to Service Institutions and Constitutional Interests in Ideological Non-Association, 36 Rutgers L Rev [1983]). That is as far as the Supreme Court majority in Abood found it necessary to go as of that time.

Recently, in Austin v Michigan Chamber of Commerce (__ US __, __ S Ct __ [58 USLW 4371]), the Supreme Court applied the compelling state interest standard in upholding the Michigan Campaign Finance Act, which prohibits corporations from using corporate treasury funds for independent political expenditures, and required instead that separate, segregated funds be used for such expenditures. The Court held the statute was narrowly tailored to further the compelling governmental interest of eliminating distortion caused by corporate spending while permitting spending of segregated funds in a way that accurately reflects contributors' support for a corporation's political views (see, 58 USLW 4371, 4373).

In light of the recent Supreme Court pronouncement in Austin and consistent with our understanding of Abood, we believe appellants are required to demonstrate a compelling state interest -- the traditional First Amendment prerequisite. The tendered state interest in this case does not qualify. The germaneness aspect, so heavily leaned on by the utilities, in any event fails to bridge the gap because the nexus between the coerced recoupment of contributions and the provision of the utility services is too tenuous, or at least not proven with necessary definitiveness. We agree and understand that charitable contributions may enhance important quality of life aspects in selected spheres of the affected communities, thus benefitting in many intangible ways the utilities' employees, customers and boosters. The lineup of amici curiae supporting the position of the utilities in this case are a testament to that desideratum. But the effects of this gossamer civic good will on the elementary provision of utility services are at best speculative, and at worst clearly not a sufficient basis upon which to compromise First Amendment freedoms held by so many affected persons.

In sum, the utilities have not fulfilled their burden of justification for imposing on their ratepayers, rather than on their shareholders, the bill for their selected philanthropy. Indeed, the beneficial corporate public relations generated by the largesse made in the name of public utilities essentially advances predominately the private interests of the utility corporations and their shareholders -- especially their financial interests -- and are too peripheral to the service interests of the ratepayers. As we have stated previously in another context, "nothing in the Constitution requires that the shareholders get a free ride on the backs of the ratepayers" (Matter of Consolidated Edison Co. v Public Serv. Commn., 66 NY2d 369, 372).

Finally, the utilities protest that ratepayers' objections to compelled recoupment of charitable contributions is no different from objections raised by taxpayers obliged to financially support ideologically offensive programs directly effected by the government. As troublesome and controversial as governmental expenditures may be in their fiscal and policy implications, they are very different from what we are confronted with in this case. To be sure, the government may collect and spread benefits -- even ones highly offensive to some citizens -- through the entire tax-paying society. But this cannot form a constitutional predicate for the government to go the next gigantic step and delegate this unique power to publicly regulated enterprises, especially corporate utility monopolies, and to allow them to extract across-the-board ratepayer subsidies.

The doctrinal integrity of First Amendment jurisprudence must be protected from such governmental channelling or blockading of public expression through preferred agents, who then, as in this case, exert monolithic or majoritarian power through a mini-- taxing authorization certainly against the interests and beliefs of some ratepayers. This would convert the free marketplace of ideas to the consumer-subsidized preserve of corporate utility ideas.

Accordingly, the order of the Appellate Division should be affirmed with costs.

Titone, J. (concurring):

I continue to believe, as I stated in Cahill v Public Service Commission (69 NY2d 265, 274-280 [Titone, J. dissenting], cert den 494 US 829), that the challenged practice at issue here, i.e., regulatory setting of utility rates, is nothing more than governmental acquiescence in private economic decision-making not rising to the level of state action. Nonetheless, since the conclusion that state action is involved is now the "law of the case," I am bound by that conclusion and must analyze the First Amendment issue presented accordingly. Even with that element settled, however, I find myself unable to agree with my colleagues' approach to the complex and subtle problems presented by this ratepayer's arguments. While I concur in their ultimate conclusion that the challenged practice, if it involves "state action," is violative of the ratepayers' constitutional rights, the route I have travelled to reach that conclusion differs in several important respects from that which the majority has taken. Accordingly, I write separately.

First, I find the majority's heavy reliance on Abood v Detroit Bd. of Educ. (431 US 209) to be extremely troubling. The threshold question in Abood, which the Court discussed at the outset of its opinion, was whether the government employees in that case could be compelled to pay union dues (or the equivalent in service fees) at all in light of the apparent infringement of their right not to associate with causes abhorrent to their beliefs. The Court acknowledged that a significant impairment of First Amendment rights was involved, since there may be some employees who are opposed to the very concept of unions and collective bargaining. However, the impairment arising from the forced contributions to union coffers was justified by an important governmental interest in promoting and preserving labor peace. It was in this context that the Abood Court went on to hold that the notion of forced contributions to the union is constitutionally valid only to the extent that the money is used for activities "germane to" collective bargaining, the union function most closely related to the identified state interest in labor peace.

The threshold constitutional problem that existed in Abood is not present in this case. In contrast to the obligatory union dues/service fees challenged in Abood, it does not violate any associational or expressional rights to compel an individual to pay for the services he has obtained from a utility company. This distinguishing feature is critical. Although reasonable minds may differ on this point, Abood may most readily be analyzed as falling within the well-established principle that even where laws impairing First Amendment rights are justified by "compelling" governmental interests, they must be narrowly tailored and may not go beyond that which is necessary to accomplish the identified governmental purpose that justifies the impairment. Viewed in that light, Abood would not be controlling here, since there is no initial impairment of the ratepayers' First Amendment rights that is analogous to the clear associational and expressional impairment involved in forcing public employees to contribute to union activities.

Furthermore, even if Abood is not be viewed as a "narrow tailoring" case, the absence of the threshold constitutional problem discussed above is significant. In Abood, because of the very nature of unions as representative agencies, the forced payment of union dues/service fees implicated the employees associational rights. Like it or not, the employees were associated with the union and the union's activities by virtue of their involuntary contributions and of the union's reciprocal duty to represent them. Because of this initial implied association, the further affront of requiring dissidents to pay for the union's "nongermane" political activities -- and to thereby associate themselves even further with offensive positions -- was deemed violative of the employees' First Amendment expressional and associational rights. Here, in contrast, there is, once again, no implicit association of the ratepayer with the utility company by virtue of the former's payment of his utility bills. Therefore, the problem of compelled association that was an important consideration in Abood is not present here (see also, Pruneyard Shopping Center v Robins, 447 US 79, 87).

Having concluded that Abood is not controlling, I am left to consider whether, in the absence of a rationale based directly on Abood, there is a constitutional prohibition against forcing an individual to contribute indirectly to causes with which he disagrees. On this issue, the observation that such a compulsion is "sinful and tyrannical" (431 US, at 234-235 n31, supra; see, majority slip op, at 7) is simply too facile. Our entire system of government by majority rule is built on the notion that individual citizens may be compelled to pay for, and even serve in wars fought for, causes and ideas that offend their own personal principles (see, e.g., United States v Seeger, 380 US 163; see also, Gillette v United States, 401 US 437). As one commentator has noted, "incursions on conscience through forced 'support' of distasteful causes is an inevitable concomitant of living in an organized society" and, accordingly, "pure peace of mind cannot be accorded high constitutional status" in a non-anarchic state (Cantor, Forced Payments to Service Institutions and Constitutional Interests in Ideological Non-association, 36 Rutgers L Rev 3, 25, 26).

While the First Amendment may, as a general matter, prohibit the state from restricting citizens' free expression of ideas, and from compelling them to express or even associate with ideas offensive to them (see, Wooley v Maynard, 430 US 705), there can be no doubt that the government may, through general taxes or special levies, force citizens to pay for projects and causes that are abhorrent to their beliefs. Thus, the real question here is whether there is anything in the Constitution that prohibits the government from doing indirectly what it unquestionably may do directly, i.e., effect a transfer of wealth from individuals to arguably socially useful projects, by permitting private business entities to "tax" their customers as a means of financing their own charitable contributions.

As to this issue, it does not suffice to attack the Public Service Commission's policy on the ground that it represents "governmental channelling * * * of public expression through preferred agents" or that it "would convert the free marketplace of ideas to the consumer-subsidized preserve of corporate utility ideas" (majority slip op, at 11). Once again, the majority's hyperbole proves too much. The government establishes "preferred agents" -- and delegates to corporations (and other private citizens) the power to spend public money on the causes of their choice -- whenever it allows a tax deduction or credit for private "charitable contributions" (Regan v Taxation With Representation, 461 US 551, 544).

Hence, there can be no serious constitutional objection to a governmental policy that delegates to a private concern the power to select the causes that will receive subsidies derived, directly or indirectly, from citizens' pockets, provided, of course, that the policy is a content-neutral one (see, id., at 548). The constitutional objection, if any, must thus be based on the other prong of the equation -- the state's delegation of its power to impose a tax, as distinguished from its power to spend the taxed funds. It is this aspect of the PSC's policy which I find to be most troublesome.

The analogy between the typically governmental function of taxation and the utilities' government-approved "pass-along" policy exists because the latter entails the imposition on ratepayers of a levy that is then used to support activities aimed at advancing the interests of the community at large, as distinguished from the interests of the utilities' shareholders and employees. In a democratic society, such a levy is permissible, if implemented directly by the government, because the government is ultimately accountable to the taxed citizens through the established political mechanisms for the expression of the majority's will. These mechanisms are circumvented, however, when the decisions as to whether and how much to "tax" are delegated to a private corporation, which is not accountable through any of these mechanisms.

Viewed in this light, the problem presented in this case may more readily be categorized as one involving the "no taxation without representation" principle than as one involving an impairment of First Amendment associational or expressional rights. Whatever its proper characterization, however, it seems clear that, assuming the existence of state action, a problem of constitutional magnitude exists. Accordingly, I concur in the majority's decision to affirm the order of the court below.

Before closing, I must stress that my conclusion herein does not represent any implicit skepticism about the value to the community of the charitable activities that the PSC policy was designed to promote -- or about the social utility of the policy itself. The past decade has ended with a widespread recognition of the limits of government's ability to tax its citizens to pay for necessary and important social programs. This recognition has, in turn, brought about an increased sensitivity to the pressing need for volunteerism in general and, more specifically, governmental policies that encourage businesses with large concentrations of capital to donate to social and charitable projects. While the PSC's efforts to promote volunteerism have, unfortunately, been proven to be constitutionally problematic in this specific context and, for that reason, cannot be upheld, I would hope that the Court's holding here will not be perceived as a rejection of the charitable intentions, as well as the goals, underlying the challenged actions of both the PSC and the utility companies it regulates.

* * * * * * * * * * * * * * * * *

Order affirmed, with costs. Opinion by Judge Bellacosa. Chief Judge Wachtler and Judges Simons, Kaye and Alexander concur. Judge Titone concurs in a separate opinion. Judge Hancock took no part.