IN RE: Robert L. SCHULZ

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Robert L. SCHULZ, Respondent, v. H. Carl McCALL, as Comptroller of the State of New York, Appellant.

Decided: January 30, 1997

Before CARDONA, P.J., and MIKOLL, MERCURE, CREW and YESAWICH, JJ. Dennis C. Vacco, Attorney General (Lew A. Millenbach, of counsel), Albany, for appellant. Robert L. Schulz, Queensbury, respondent in pro. per.

Appeal from an order of the Supreme Court (Harris, J.), entered July 10, 1996 in Albany County, which, in a combined proceeding pursuant to CPLR article 78 and action for a declaratory judgment, denied respondent's motion for summary judgment.

So much of this combined proceeding and action as is relevant to this appeal arises out of respondent's alleged use of public funds to advocate a particular position on a constitutional amendment that was proposed for the voters' consideration at the November 7, 1995 general election.   On a prior appeal, we determined that the petition/complaint stated a valid cause of action against respondent under N.Y. Constitution, article VII, § 8(1) to the extent that it alleged respondent's dissemination at public expense of an article “Debt Reform Amendment:  A Good First Step Toward Fiscal Responsibility” (220 A.D.2d 984, 986, 632 N.Y.S.2d 883).   In so doing, we rejected respondent's contention that the article was a mere attempt to educate the public (see, Matter of Schulz v. State of New York, 86 N.Y.2d 225, 236, 630 N.Y.S.2d 978, 654 N.E.2d 1226, cert denied 516 U.S. 944, 116 S.Ct. 382, 133 L.Ed.2d 305;  Matter of Phillips v. Maurer, 67 N.Y.2d 672, 673, 499 N.Y.S.2d 675, 490 N.E.2d 542);  to the contrary, we found that the article sought “to induce a positive vote on the proposed constitutional amendment” (Matter of Schulz v. McCall, 220 A.D.2d 984, 986, 632 N.Y.S.2d 883, supra ).

Following the defeat of the proposed constitutional amendment and joinder of issue, respondent moved for summary judgment dismissing the petition/complaint upon a factual showing that, although $300 in public funds was expended in the dissemination of the subject article to the news media, “[respondent] and his Office were significantly involved in the development of the proposed constitutional amendment from its inception” and the article was prepared and disseminated in response to media requests.   Supreme Court denied the motion, respondent appeals and we now affirm.

We agree with Supreme Court's conclusion that respondent's evidentiary submissions by no means mandated a finding that he did not violate N.Y. Constitution, article VII, § 8(1) because his dissemination of public funds was merely accomplished in furtherance of a civic responsibility to speak on matters of public concern.   Rather, as clearly expressed in our prior decision, our reading of the subject article leads us to the conclusion that the expenditure was incurred as the result of an affirmative effort on respondent's part to influence the election (Matter of Schulz v. McCall, supra, at 985-986, 632 N.Y.S.2d 883).   Thus, we are not persuaded by respondent's efforts to distinguish the present situation from the facts underlying Matter of Phillips v. Maurer (supra ) and Matter of Schulz v. State of New York (supra ).

The additional points raised in petitioner's voluminous brief are irrelevant to the discrete issue raised on respondent's motion and the appeal therefrom.

ORDERED that the order is affirmed, with costs.

MERCURE, Justice.

CARDONA, P.J., and MIKOLL, CREW and YESAWICH, JJ., concur.

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