## Facts

- A proposed New York membership corporation submitted a certificate of incorporation stating purposes centered on “freedom of choice and association,” research and publication on intergroup relations, and efforts to remove barriers to such “freedom of choice.”
- New York law required judicial approval of the certificate before the Secretary of State could file it.
- A Supreme Court justice refused to approve the certificate, viewing the organization’s aims as, in substance, favoring racial discrimination and therefore contrary to public policy or injurious to the community.
- The Secretary of State refused to file the certificate because it lacked the required judicial approval.
- The applicant challenged both the denial of judicial approval and the refusal to file, including on constitutional grounds.

## Issues

1. Whether a justice reviewing an incorporation certificate under the membership-corporation approval statute may deny approval based on an open-ended personal judgment that the purposes are contrary to public policy or injurious to the community.
2. Whether the statutory scheme requiring judicial approval before filing is valid as applied, including in light of constitutional protections for speech and association.
3. Whether the Secretary of State may refuse to file a certificate that lacks the statutorily required judicial approval.

## Decision

- The court held that the approving justice does not have unfettered discretion to deny incorporation based solely on personal notions of public policy or community injury.
- The court reversed the order upholding the justice’s denial and remitted for further proceedings under the correct legal standard.
- The court upheld the statutory requirement that the Secretary of State refuse filing when judicial approval is required but absent.
- The Secretary of State’s refusal to file was proper under the statute, while the judicial-approval decision had to be reconsidered within lawful limits.

## Legal Principles

- Statutory “approval” of incorporation must be exercised within legally bounded standards; generalized, subjective public-policy judgments are not a sufficient basis to deny approval.
- A state may condition corporate formation on compliance with statutory requirements, but administration of those requirements may not operate as viewpoint-based suppression of lawful advocacy or association.
- The approval requirement may be construed to screen out corporations organized for unlawful purposes, while preventing its use to block controversial but facially lawful expressive and associational objectives.
- When statutes require judicial approval as a prerequisite to filing, the Secretary of State may treat the absence of approval as a filing defect and refuse to file; the filing function remains ministerial.

## Conclusion

The court confined the judicial-approval power for membership-corporation incorporations, rejecting denial based on a judge’s broad public-policy preferences, while sustaining the statutory scheme that makes judicial approval a prerequisite to filing and recognizing the Secretary of State’s authority to refuse filing absent that approval.


Ass’n for the Pres. of Freedom of Choice, Inc. v. Shapiro, 174 N.E.2d 487 (N.Y. 1961)