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In wrangling over the free expression case of an artist who wants to pose dozens of nude models on the streets of lower Manhattan, a federal appellate panel sought guidance from New York’s highest court. On Friday, the New York State Court of Appeals declined to embroil itself in the saga of Spencer Tunick. The Court, citing the fact that the issue may well be moot before it ever gets around to rendering a decision, declined to answer three certified questions presented to it by the 2nd U.S. Circuit Court of Appeals. Its decision in Tunick v. Safir, No. 86, represents an unusual but hardly unprecedented rejection of a matter brought to its attention by the federal court. At the heart of the case is an attempt by Tunick to stage a photographic shoot involving between 75 and 100 nude models on Manhattan streets on a Sunday morning. Tunick had previously received a permit for a five-minute photo shoot of clothed models. But when he sought a permit to do a nude version, the Giuliani Administration turned him down, citing Penal Law �245.01, which prohibits public nudity, and Penal Law �245.02, which forbids the promotion of public nudity. Two days before the planned July 18, 1999, shoot, U.S. District Judge Harold Baer Jr. enjoined the City from interfering. The following day, the 2nd Circuit stayed the injunction and expedited the appeal, which was argued on Sept. 13, 1999. On March 24, the 2nd Circuit issued two separate opinions certifying three questions to the New York Court of Appeals: whether Tunick’s proposed photo shoot constitutes performance in a “play, exhibition, show or entertainment” within the exception to ��245.01 and 245.02; if so, whether the exceptions are limited to indoor activities; and if not whether ��245.01 and 245.02 are constitutional. SOME OTHER TIME On Friday, the State Court declined to answer the certified questions, noting that even an expedited process would take months, and expressing concern that the matter will be moot before it renders a ruling. It also observed that since the constitutionality of ��245.01 and 245.02 has not been raised by the parties to the litigation, it would be inappropriate for the Court of Appeals to address the third certified question. “In view of the already lengthy delay in adjudication of plaintiff’s civil rights claims (a matter of concern to both our courts) the fact that we would not in any event reach the proposed State constitutional question and the definite possibility of mootness in the remaining questions before they can be answered, we conclude that certification should be declined in the mutual interest of expeditious resolution of the primary injunction/prior restraint issue,” the Court said in a per curiam opinion. The Court, however, went out of its way to praise the value of the procedure, noting that it nearly always accepts questions certified to it by the 2nd Circuit, and describing interjurisdictional certification as “an effective device that can benefit both Federal and State courts as well as litigants.”

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