Tunick v. Safir, 94 N.Y.2d 709 (2000)
New York’s Court of Appeals may decline to answer certified questions from a federal court when the issue may become moot during the certification process, especially if a key issue like a state constitutional question was not adequately raised by the parties.
Summary
The Second Circuit Court of Appeals certified three questions to the New York Court of Appeals regarding the legality of a planned nude photography shoot in public, specifically whether it constituted a form of “entertainment or performance” exempt from public lewdness laws and whether those laws violated the New York Constitution. The New York Court of Appeals declined to answer, citing concerns about potential mootness, as the photo shoot could occur while the certification process was ongoing. Further, the court noted that the parties had not adequately raised or briefed the state constitutional issue, making it inappropriate for the court to address it in the first instance.
Facts
Spencer Tunick planned a nude photography shoot involving 75 to 100 people on a public street in New York City. City officials threatened to arrest participants under New York’s public lewdness laws (N.Y. Penal Law §§ 245.01 and 245.02). Tunick sought an injunction to prevent the arrests, arguing the photo shoot was artistic expression protected by the First Amendment.
Procedural History
The District Court granted a preliminary injunction in favor of Tunick. The Second Circuit stayed the injunction pending appeal and expedited the appeal process. The Second Circuit then certified three questions to the New York Court of Appeals. A dissenting judge opposed certification, suggesting the issue could become moot. The New York Court of Appeals then declined to answer the certified questions.
Issue(s)
Whether the New York Court of Appeals should answer certified questions from a federal court when: (1) the underlying issue may become moot during the certification process, and (2) a significant issue (like a state constitutional question) was not adequately raised and briefed by the parties in the lower courts?
Holding
No, because: (1) the delay inherent in the certification process could lead to mootness if the Second Circuit lifted the stay and allowed the photo shoot to occur and (2) the court deemed it inappropriate to address the state constitutional issue when the parties had not adequately presented it.
Court’s Reasoning
The court weighed the benefits of answering the certified questions against the potential for the case to become moot. The court recognized New York’s certification procedure provides great value when Federal appellate courts are faced with questions of New York law on which the Court of Appeals has not previously spoken. However, the court was concerned about the already lengthy delay in adjudicating the plaintiff’s civil rights claims. The court emphasized the need for expedited review in cases involving prior restraints on artistic conduct. Because answering the questions would add months to the case, the photo shoot could take place, thus terminating the plaintiff’s action.
The court also noted the state constitutional issue was not raised, briefed, or argued by the parties themselves. The court stated, “This Court could not responsibly engage on that question where the parties to the litigation have not sought relief under this State’s Constitution and the issue would be first briefed and raised in our Court.”
The court underscored the value of the certification procedure but found that in this particular case, the potential for mootness and the lack of adequate briefing on the state constitutional issue outweighed the benefits of answering the certified questions.