New York County Clerk’s Index Nos. 102472/12, 102553/12 and 102783/12
Court of Appeals
STATE OF NEW YORK
METROPOLITAN TAXICAB BOARD OF TRADE, OSSMAN ALI,
AYALLO HACKING CORP., BONANZA CAB CORP.,
BATH CAB CORP., RONDEB CAB CORP. and NEW YORK CITY
COUNCIL MEMBER LEWIS A. FIDLER,
Plaintiffs-Respondents,
and
THE LIVERY ROUNDTABLE, INC., BIG EAST MULTI GROUP CORP.,
d/b/a/ PREMIER CAR SERVICE, N.J.M., INC.
d/b/a MID ISLAND CAR SERVICE OF STATEN ISLAND,
Intervenor-Plaintiffs-Respondents,
against
MICHAEL R. BLOOMBERG, in his official capacity as Mayor of the City of
New York; CITY OF NEW YORK; THE NEW YORK CITY TAXI AND LIMOUSINE
COMMISSION (“TLC”); DAVID S. YASSKY, in his official capacity as Commissioner,
Chair and Chief Executive Officer of the TLC,
Defendants-Appellants,
and
LIVERY BASE OWNERS INC. and THE EXCELLENT CAR SERVICE INC.,
Intervenor-Defendants-Appellants.
(Additional Captions on the Reverse)
>> >>
BRIEF FOR INTERVENOR-DEFENDANTS-APPELLANTS
GREENBERG TRAURIG, LLP
Attorneys for Intervenor-Defendants-
Appellants
MetLife Building
200 Park Avenue
New York, New York 10166
212-801-9200
Date Completed: January 17, 2013
To Be Argued By:
Stephen L. Saxl
Time Requested: 10 Minutes
Of Counsel:
Stephen L. Saxl
Israel Rubin
Ryan F. Harsch
TAXICAB SERVICE ASSOCIATION; LOMTO FEDERAL CREDIT UNION;
MELROSE CREDIT UNION; MONTAUK CREDIT UNION;
and PROGRESSIVE CREDIT UNION,
Plaintiffs-Respondents,
against
THE STATE OF NEW YORK; THE NEW YORK STATE ASSEMBLY; THE NEW YORK
STATE SENATE; ANDREW M. CUOMO, in his official capacity as Governor of
New York; THE CITY OF NEW YORK; MICHAEL R. BLOOMBERG, in his official
capacity as Mayor of the City of New York; the NEW YORK CITY TAXI AND
LIMOUSINE COMMISSION, a charter-mandated agency; DAVID YASSKY, in his
official capacity as Chairman and Commissioner of the New York City Taxi
and Limousine Commission,
Defendants-Appellants,
and
LIVERY BASE OWNERS INC. and THE EXCELLENT CAR SERVICE INC.,
Intervenor-Defendants-Appellants.
GREATER NEW YORK TAXI ASSOCIATION and EVGENY FREIDMAN,
Plaintiffs-Respondents,
against
THE STATE OF NEW YORK, THE NEW YORK STATE ASSEMBLY, THE NEW YORK
STATE SENATE; ANDREW M. CUOMO, in his official capacity as Governor of
New York; THE CITY OF NEW YORK; MICHAEL R. BLOOMBERG, in his official
capacity as Mayor of the City of New York; the NEW YORK CITY TAXI AND
LIMOUSINE COMMISSION, a charter-mandated agency, and DAVID YASSKY, in
his official capacity as Chairman and Commissioner of the New York City
Taxi and Limousine Commission,
Defendants-Appellants,
and
LIVERY BASE OWNERS INC. and THE EXCELLENT CAR SERVICE INC.,
Intervenor-Defendants-Appellants.
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................... iii
PRELIMINARY STATEMENT ............................................................................... 1
The Livery Industry and the Communities It Serves ............................................. 2
Summary of Argument ........................................................................................... 4
QUESTIONS PRESENTED ................................................................................................. 11
ARGUMENT ............................................................................................................................ 12
I. BECAUSE THE STATE LEGISLATURE ENACTED THE STREET
HAIL LIVERYLAW IN FURTHERANCE OF THE SUBSTANTIAL
STATE INTEREST IN NEW YORK CITY’S FOR-HIRE
TRANSPORTATION SYSTEM, AND THE ACT BEARS A DIRECT
AND REASONABLE RELATIONSHIP TO THAT SUBSTANTIAL
STATE INTEREST, THE ACT DID NOT REQUIRE A HOME RULE
MESSAGE. ....................................................................................................................... 12
A. This Court Has Established That The State May Enact
Legislation On A Broad Range Of State Concerns,
Notwithstanding Their Impact On A Particular Locality. ................. 12
B. The State Legislature’s Findings And Legislative History,
This Court’s Precedent, And The Record Evidence All
Demonstrate A Substantial State Interest In Expanding
Access To New York City’s For-Hire Transportation
System For Historically Underserved Communities And
People With Disabilities..................................................................... 16
C. The State’s Substantial Interest In New York City’s For-Hire
Transportation System Is Particularly Clear Because Livery
Cars And Yellow Taxicabs Frequently Travel Across City
Lines And Play A Crucial Role In New York State’s
Transportation Network. .................................................................... 27
D. The Street Hail Livery Law Is “Reasonably Related” To The
Substantial State Interest In New York City’s For-Hire
Transportation System. ...................................................................... 32
E. Supreme Court Erroneously Rejected The Legislature’s
Findings As Pretextual And Improperly Relied On Unfounded
And Irrelevant Speculation About The Legislature’s Motives. ......... 35
ii
II. BECAUSE THE STREET HAIL LIVERY LAW INVOLVES A
SUBSTANTIAL STATE INTEREST, THE STATE CONSTITUTION
DID NOT REQUIRE DOUBLE ENACTMENT. .................................................. 41
III. THE STREET HAIL LIVERY LAW DOES NOT GRANT
UNCONSTITUTIONAL EXCLUSIVE PRIVILEGES TO LIVERY
DRIVERS OR OWNERS. ............................................................................................ 41
CONCLUSION ........................................................................................................ 47
iii
TABLE OF AUTHORITIES
CASES
Adler v. Deegan,
251 N.Y. 467 (1929) ..................................................................................... passim
Admiral Realty Co. v. City of New York,
206 N.Y. 110 (1912) .................................................................................. 6, 20, 21
American Consumer Indus., Inc. v. City of New York,
28 A.D.2d 38 (1st Dep't 1967) ............................................................ 42-43, 44-45
Bordeleau v. State of New York,
18 N.Y.3d 305 (2011) ........................................................................................... 12
Bugeja v. City of New York,
24 A.D.2d 151(2d Dep't 1965), aff’d, 17 N.Y.2d 606 (1966) .............................. 15
City of New York v. New York,
67 Misc. 2d 513 (Sup. Ct. N.Y. Cty. 1971), aff’d, 31 N.Y.2d 804 (1972) .......... 15
City of New York v. Patrolmen’s Benevolent Association of City of
New York (PBA-1),
89 N.Y.2d 380 (1996) ................................................................................... 18, 33
City of New York v. State of New York,
94 N.Y.2d 577 (2000) ................................................................................... passim
City of New York v. Village of Lawrence,
250 N.Y. 429 (1929) ............................................................................................. 27
City of Rochester v. Gutberlett,
211 N.Y. 309 (1914) ............................................................................................. 44
Consumers Union of U.S., Inc. v. State of New York,
5 N.Y.3d 327 (2005) ............................................................................................. 43
Fox v. Mohawk & Hudson River Humane Society,
165 N.Y. 517 (1901) ............................................................................................. 42
Hotel Dorset Co. v. Trust for Cultural Resources of City of
New York,
46 N.Y.2d 358 (1978) ........................................................................................... 12
Lavalle v. Hayden,
98 N.Y.2d 155 (2002) ........................................................................................... 12
Matter of McAneny v. Board of Estimate & Apportionment of City of
New York,
232 N.Y. 377 (1922) ..................................................................................... passim
Matter of Osborn v. Cohen,
272 N.Y. 55 (1936) .................................................................................. 18, 19, 20
iv
Matter of Town of Islip v. Cuomo,
64 N.Y.2d 57 (1963) ......................................................................... 15, 20, 21, 27
Matter of Union Ferry Co. of Brooklyn,
98 N.Y. 139 (1885) ............................................................................................... 42
New York Steam Corp. v. City of New York,
286 N.Y. 137 (1935) ............................................................................................. 20
Patrolmen’s Benevolent Association v. City of New York (PBA-2),
97 N.Y.2d 378 (2001) ................................................................................... passim
Robertson v. Zimmerman,
268 N.Y. 52 (1935). ....................................................................................... 15, 27
Salzman v. Impellitteri,
203 Misc. 486 (Sup Ct. N.Y. Cty.), aff’d, 281 A.D. 1023 (1st Dep’t),
aff’d as modified, 305 N.Y. 414 (1953) ............................................................... 19
Uniform Firefighters Association v. City of New York,
50 N.Y.2d 85 (1980) ...................................................................................... 15, 16
Wambat Realty Corp. v. State of New York,
41 N.Y.2d 490 (1977) ................................................................................... passim
CONSTITUTION
N.Y. Const. Art. III, § 17 .................................................................................. 10, 41
N.Y. Const. Art. IX, § 2(b)(1) ........................................................................... 10, 41
N.Y. Const. Art. IX, § 2(b)(2) .................................................................................. 12
STATUTES
N.Y. Pub. Health Law § 1399-o(1)(e) ..................................................................... 32
Street Hail Livery Law, L 2011 ch 602, as amended by L 2012 ch 9 ............. passim
REGULATIONS
35 RCNY § 54-17(g) ................................................................................................ 28
35 RCNY § 82-33 .................................................................................................... 22
35 RCNY § 83-31 .................................................................................................... 22
PRELIMINARY STATEMENT
The State Legislature enacted the Street Hail Livery Law (the “Act”) to
address the problems that the “majority of residents and non-residents of the city of
New York do not currently have sufficient access to legal, licensed taxicabs
available for street hails in the city of New York” and that the current “supply of
accessible vehicles is insufficient to provide adequate and reliable transportation
for the residents of and the commuters and visitors to New York City who have
disabilities….” L 2011 ch 602, as amended by L 2012 ch 9, § 1. Supreme Court
took the extraordinary step of striking down the Act as unconstitutional, despite the
fact that the State Legislature expressly found that it furthers New York State’s
substantial interest in expanding access to safe and reliable for-hire transportation
“to, from, and within” New York City, particularly for those in communities which
have been historically deprived of access to street hail taxi service and for
residents, commuters and visitors with disabilities.
In holding that the law violated the Home Rule, Double Enactment, and
Exclusive Privileges Clauses of the New York State Constitution, Supreme Court
contravened well-established law of this Court, drew arbitrary and erroneous
conclusions based on speculation without any support in the record, and substituted
its own policy preferences for legal analysis. Because the Legislature’s findings,
the factual record, and this Court’s precedent make clear that the Street Hail Livery
2
Law was enacted in furtherance of, and is directly and reasonably related to, the
substantial State interest in New York City’s for-hire transportation system, the
law should be upheld and Supreme Court’s Judgment should be reversed.
The Livery Industry and the Communities It Serves
Intervenor-Defendant-Appellant Livery Base Owners Inc. is an umbrella
organization whose members include more than 125 livery companies with more
than 9,000 livery drivers based in the City of New York. These livery companies
provide crucial transportation service primarily for residents of Northern
Manhattan and the other four boroughs of New York City, who have been
traditionally neglected by the yellow taxi industry. Intervenor-Defendant-
Appellant The Excellent Car Service Inc. is one such livery company, a minority-
owned small business operating in the Bronx and member of Livery Base Owners.
Livery Base Owners and The Excellent Car Service intervened as defendants
in these three actions after Supreme Court issued a temporary restraining order
enjoining implementation of this important law on home rule grounds based on
what Supreme Court later admitted was the wrong test. (T2153.)1 They intervened
because the Street Hail Livery Law is vitally important to the livery industry and
1 Unless otherwise indicated, citations inside parentheses preceded by the letter “G,” “M,” or “T”
refer, respectively, to pages in the Record on Appeal for Greater New York Taxi Association v.
State of New York, Metropolitan Taxicab Board of Trade v. Bloomberg, or Taxicab Service
Association v. State of New York. When a document appears in multiple Records, only the “T”
citation to the Record in Taxicab Service Association v. State of New York is provided. Supreme
Court’s Decision and Order can be found at T2137, G361, and M1210.
3
the communities it serves in that it dramatically expands access to for-hire
transportation for residents of and visitors to these underserved areas and for
residents and visitors with disabilities. Intervenor-Defendants join in the
arguments made by the City and State Defendants and will not repeat all of them
here. Instead, Intervenor-Defendants submit this brief to highlight the perspective
of the livery industry and the communities it serves.
The livery industry consists of primarily small, neighborhood businesses that
operate privately-owned for-hire vehicles (“livery cars”) licensed by the New York
City Taxi and Limousine Commission (“TLC”). Commonly referred to as a “car
service,” a “livery base” dispatches livery cars to customers via telephonic pre-
arrangement. Currently, there are approximately 38,000 licensed drivers in the
livery industry based in New York City, with approximately 23,000 vehicles
registered and affiliated with approximately 450 livery bases. (T1447 ¶ 4.) These
livery bases are primarily minority-owned small businesses, which operate at small
profit margins. (Id.)
By law, livery cars, unlike yellow taxis, have not been permitted to accept
passengers via “street hail,” only by “pre-arrangement.” Studies conducted by the
TLC show that approximately 95% of yellow taxi pickups occur in the Central
Business District of Manhattan (defined as Manhattan south of 110th Street on the
West Side and south of 96th Street on the East Side) or at the New York City area
4
airports, despite the fact that only 17% of the City’s population lives in the Central
Business District. (T131-32 ¶ 4.)
As a result, residents of Northern Manhattan and the other four boroughs,
which have long suffered from inadequate access to yellow taxicabs, have relied on
livery car service as a crucial means of transportation. The livery industry focuses
primarily on serving the millions of people that reside outside the Central Business
District of Manhattan and has become, literally and figuratively, the engine of the
economy in these communities for over 40 years. Livery cars provide
transportation for a variety of crucial needs; for example, they frequently take
people to work and take children to school. (T1447-48 ¶¶ 5-6.) However, because
livery cars can only legally provide service via pre-arrangement, residents of these
communities are deprived of the opportunity to obtain safe, convenient, and legal
street hail transportation. Moreover, both yellow taxis and livery cabs have largely
failed to service people in wheelchairs, as most vehicles have not been equipped to
do so.
Summary of Argument
The Street Hail Livery Law is an important piece of legislation designed to
remedy this broken system and expand access to for-hire transportation for
millions of residents of, commuters, and visitors to New York City. The Street
Hail Livery Law creates Hail Accessible Inter-borough Licenses (“HAIL licenses”)
5
which will permit livery vehicles lawfully to pick up customers on the street
outside of the Central Business District of Manhattan and the airports without pre-
arrangement. Act §§ 4(b)-(c), 5(a). The Act also improves access to taxis and
livery cars for residents and visitors with disabilities by expanding the supply of
yellow taxi medallions for wheelchair-accessible taxis, requiring that a certain
percentage of HAIL licenses be reserved for wheelchair-accessible livery cars, and
providing subsidies for the purchase of accessible vehicles. Act §§ 5(b), 8, 9(a),
(b).
It is well-established by this Court that the State Legislature has wide
latitude to pass such a “special” law, i.e., a law not of general application but
targeting a specific locality, without a “home rule message” from the local
government if it “bears a direct and reasonable relationship to a substantial State
concern.” Patrolmen’s Benevolent Ass’n v. City of New York, 97 N.Y.2d 378, 386
(2001) (“PBA-2”). This Court has repeatedly rejected home rule challenges,
finding a substantial State interest in myriad areas, including transportation, and in
only one case has this Court found no substantial state interest.
In determining whether a substantial State concern exists, the Court looks to
the Legislature’s stated purposes and legislative history. PBA-2, 97 N.Y.2d at 388.
Here, the Legislature’s “Findings” specifically acknowledge the problem of lack of
accessible for-hire transportation in New York City and articulate that the State has
6
a substantial interest in “access to safe and reliable mass transportation such as
taxicabs” which promotes the “public health, safety and welfare of the residents of
the state of New York traveling to, from and within the city of New York” and
access for “residents of and the commuters and visitors to New York City who
have disabilities [which] therefore inhibits their basic daily activities.” Act § 1.
The legislative history of the Act echoes these concerns.
Indeed, this Court has previously held that transportation is an area of
substantial State concern and has upheld laws regulating public transit in New
York City against home rule challenges. Matter of McAneny v. Bd. of Estimate &
Apportionment of City of New York, 232 N.Y. 377 (1922); Admiral Realty Co. v.
City of New York, 206 N.Y. 110 (1912). For example, this Court recognized that
rapid transit strictly within New York City concerns the “public interest, affecting
not only the people of that city, but of the whole state. It has been generally
regarded as a state affair.” McAneny, 232 N.Y. at 393.
Just as New York City subways are considered a substantial State concern
because they benefit the public interest of the whole State, the Street Hail Livery
Law, as the State Legislature found, furthers a substantial State interest in
expanding access to for-hire transportation, including for the millions of people
who live in traditionally underserved communities, many of whom are minorities,
immigrants, or working class New Yorkers. As the Black, Latino and Asian
7
Caucus of the New York City Council wrote in support of the Act’s passage,
“historically, minority communities throughout New York City have been
underserved by the yellow cab industry” and the law “would ensure safe, legal, and
reliable services for the residents of neighborhoods through the five boroughs that
are not served by yellow taxis.” (T1463.) The Street Hail Livery Law is also of
vital importance to the livery bases and their drivers, as it would legitimize and
strengthen the livery industry, protecting crucial small businesses and the jobs of
tens of thousands of livery drivers. (T1466 ¶ 5, T1454 ¶ 31.) The Act also
benefits visitors, commuters, and tourists from outside New York City by
increasing the supply and availability of taxis and livery cars for street hail.
Finally, it dramatically expands the supply of wheelchair-accessible taxis and
livery cars.
The State’s interest in the for-hire transportation system is particularly clear
because livery cars and yellow taxicabs travel across New York City borders and
thereby directly affect areas of New York State outside of New York City. This
Court has recognized that cross-jurisdictional issues are a substantial State concern.
See Wambat Realty Corp. v. State of New York, 41 N.Y.2d 490, 498 (1977)
(recognizing that the home rule doctrine allows the State to “meet the problems
that transcend local boundaries, interests, and motivations”) (emphasis added).
While subways are considered a State concern even though they are physically
8
confined to New York City, livery cars and yellow taxicabs make millions of trips
transporting passengers to destinations outside the City each year. (M1202 ¶ 6.)
Moreover, taxis and livery cars are an essential part of New York State’s integrated
transportation network. Livery cars, as well as taxis, regularly take or pick up
passengers from train stations and bus stops from which they travel to other parts
of New York State and to other States. Surely there is a substantial State interest in
transportation that crosses the City’s boundary lines and is an important part of the
State’s transportation network.
In addition, this Court’s rulings make clear that the “reasonably related”
prong of the home rule inquiry is easily met here. See PBA-2, 97 N.Y.2d at 388.
By creating licenses for livery vehicles to accept street hails outside the Central
Business District of Manhattan and the airports, requiring that 20% of them be
wheelchair accessible, and increasing the supply of accessible yellow taxis, the
Street Hail Livery Law is plainly “reasonably related” to the State interest in
expanding access to for-hire transportation in New York City.
Supreme Court erroneously ignored precedent, the Legislative findings, and
the record evidence in concluding that this is “New York City ‘stuff’” and thus not
a “particular concern” for the State, (T2159), instead improperly adopting
Plaintiffs-Respondents’ conjecture that the Legislature’s statement of purpose was
a pretext. Supreme Court speculated that the Act’s findings “probably came last in
9
the legislator’s minds” and opined that the real purpose of the law was to
“rescramble the City taxicab industry (and, incidentally, government),” because the
law gives the Mayor, rather than the City Council, the power to authorize the TLC
to issue the 2,000 new wheelchair-accessible taxi medallions. (T2157.) This was
clear error.
First, the subjective reasons for the legislators passing the law are
completely irrelevant. This Court does not inquire into the political motivations
underlying a duly enacted law, which are not appropriate for judicial review. City
of New York v. State of New York, 94 N.Y.2d 577, 591 (2000). Second, Supreme
Court’s conclusion that improving the City’s for-hire transportation system was not
the real purpose of the law is not based on any record evidence, but on the Court’s
sheer speculation.
In fact, while legally irrelevant, the Supreme Court’s characterization of the
political history is wrong. Despite a recognized need for increased for-hire
transportation options for New York City residents and visitors, the New York City
Council had failed to take action. Thanks to the yellow taxi industry lobby, there
are fewer taxi medallions today (13,237) than in the 1930s, despite the enormous
increase in population, diversity, and expansion in New York City. (T140, T295.)
The yellow taxi industry has greatly benefited from resisting changes to this
10
arrangement, while residents of and visitors to areas of New York City that are
ignored by yellow taxicabs have suffered from a lack of accessible transportation.
The State Legislature passed the Act and the Governor signed it into law to
address these serious concerns. As this Court has recognized, “neither Constitution
nor statute was designed to disable the State from responding to problems of
significant State concern.” Wambat, 41 N.Y.2d at 497. Because the Street Hail
Livery Law is legislation enacted to benefit millions of people in New York State
and addresses a substantial State concern with access to for-hire transportation, no
home rule message was required and the Act should be upheld.
Supreme Court also incorrectly held that the Act violated the Double
Enactment Clause of Article IX, Section 2(b)(1) of the New York State
Constitution. Because the Street Hail Livery Law furthers a substantial State
interest in access to New York City’s for-hire transportation system, double
enactment was not required.
Finally, Supreme Court erroneously held that the Act violated the Exclusive
Privileges Clause, Article III, Section 17 of the New York State Constitution. But
the Act grants no exclusive privileges, as this Court’s precedents make clear. The
Legislature created no monopoly at all, and nothing was granted to a single entity.
In any event, the Act was a proper exercise of the State’s police power.
11
As shown herein, and by the City and State Defendants-Appellants, the
Street Hail Livery Law was enacted in compliance with the State Constitution and
the Judgment should be reversed.
QUESTIONS PRESENTED
1. Whether, because the State Legislature enacted the Street Hail Livery
Law in furtherance of the substantial State interest in New York City’s for-hire
transportation system, and because the Act bears a direct and reasonable
relationship to that substantial State interest, Supreme Court erred in concluding
that under the Home Rule Clause of the New York State Constitution, the Act
required a home rule message from the New York City Council.
2. Whether, because the Street Hail Livery Law involves a substantial State
interest, Supreme Court erred in concluding that the Double Enactment Clause of
the New York State Constitution required double enactment.
3. Whether, because the Street Hail Livery Law does not grant
unconstitutional exclusive privileges to livery drivers, owners or bases, Supreme
Court erred in concluding that the Act violated the Exclusive Privileges Clause of
the New York State Constitution.
12
ARGUMENT
As Supreme Court acknowledged, Plaintiffs-Respondents are required to
overcome a heavy burden to establish the unconstitutionality of the Street Hail
Livery Law. See Bordeleau v. State of New York, 18 N.Y.3d 305, 313 (2011).
“There is a simple, but well-founded, presumption that an act of the Legislature is
constitutional and this presumption can be upset only by proof persuasive beyond a
reasonable doubt.” Hotel Dorset Co. v. Trust for Cultural Resources of City of
New York, 46 N.Y.2d 358, 370 (1978). A court “must avoid, if possible,
interpreting a presumptively valid statute in a way that will needlessly render it
unconstitutional.” Lavalle v. Hayden, 98 N.Y.2d 155, 161 (2002). Supreme Court
erred because Plaintiffs-Respondents have not cleared the hurdle of proving
unconstitutionality beyond a reasonable doubt.
I. BECAUSE THE STATE LEGISLATURE ENACTED THE
STREET HAIL LIVERY LAW IN FURTHERANCE OF THE
SUBSTANTIAL STATE INTEREST IN NEW YORK CITY’S
FOR-HIRE TRANSPORTATION SYSTEM, AND THE ACT
BEARS A DIRECT AND REASONABLE RELATIONSHIP TO
THAT SUBSTANTIAL STATE INTEREST, THE ACT
DID NOT REQUIRE A HOME RULE MESSAGE.
A. This Court Has Established That The State May Enact Legislation On
A Broad Range Of State Concerns, Notwithstanding Their Impact On A
Particular Locality.
In challenging the Act under the State Constitution’s Home Rule Clause,
Article IX, Section 2(b)(2), Plaintiffs-Respondents must overcome not only the
13
general presumption of constitutionality that attaches to any law, but also this
Court’s well-established body of home rule case law, which grants the State
Legislature wide latitude to enact legislation on matters of substantial State
concern without a “home rule message,” notwithstanding that it is a “special law”
that targets a specific city.
In the seminal case of Adler v. Deegan, 251 N.Y. 467, 472-73 (1929), the
Court of Appeals concluded that the drafters of the Home Rule Amendment, which
requires a home rule message for any special law pertaining to the “property,
affairs or government of cities,” did not intend to prohibit all State legislation that
merely affects city “affairs.”2 Judge Cardozo, in a concurring opinion which
provided the framework that this Court has since followed to decide home rule
cases, recognized that while certain matters are either city functions (such as
building parks) or exclusively State functions, there are areas where “State and city
concerns overlap and intermingle.” Id. at 489 (Cardozo, J., concurring). In these
situations, Judge Cardozo concluded that the City and State share concurrent
powers, but city concerns must yield to State interests: “affairs, though concerns
of a city, are subject, none the less, to regulation through the usual forms of
legislation, if they are concerns also of the State.” Id. at 490. The question here is
2 The Court concluded that the “property, affairs or government of cities” were “words of art”
that meant “much less, very much less, than most people consider the word ‘affairs’ to mean,”
and that the drafters of the Home Rule Amendment incorporated that “special limited meaning”
into the Constitution. Adler, 251 N.Y. at 473.
14
not whether the for-hire transportation system is primarily a New York City issue,
because “predominance is not the test.” Id. As Judge Cardozo succinctly
summarized:
I assume that, if the affair is partly State and partly local, the city is
free to act until the State has intervened. As to concerns of this class
there is concurrent jurisdiction for each in default of action by the
other. The power of the city is subordinate at such times to the power
of the State, but may be exerted without restraint to the extent that the
two can work in harmony together.
Id. at 491 (emphasis added).
This Court has continued to endorse this “definitive principle” of State
supremacy where both city and State concerns are involved: “that a proper concern
for the State may also touch upon local concerns does not mean that the State may
not freely legislate with respect to such concerns … the phrase ‘property, affairs or
government’ of a locality has not served to paralyze the State Legislature where to
a substantial degree, in depth or extent, a matter of State concern is involved.”
Wambat, 41 N.Y.2d at 494.
Thus, this Court has adopted the test first proposed by Judge Cardozo: that
even a “special law” is constitutional if it “bears a direct and reasonable
relationship to a substantial State concern.” PBA-2, 97 N.Y.2d at 386. This test
has resulted in a long, firmly-established history of “home rule” case law which
points inexorably in one direction – that the “reasonably related to a substantial
State concern” test is easily met. Supreme Court acknowledged that the
15
“substantial State interest exception is alive and well,” and that “most, perhaps the
vast majority of, home rule challenges fail.” (T2151-52.) Indeed, this Court has
repeatedly rejected home rule challenges to State legislation on issues of State
concern that were undoubtedly of great local importance. See, e.g., PBA-2, 97
N.Y.2d at 391-92 (law affecting collective bargaining rights for public police and
fire unions in New York City and three surrounding counties); City of New York v.
State of New York, 94 N.Y.2d 577, 591-92 (2000) (repeal by State of New York
City commuter tax on non-residents of City); Wambat, 41 N.Y.2d at 495-96 (law
overriding local zoning powers in order to protect Adirondack Park region).
In fact, many laws which have been held to implicate State concerns are
laws that targeted exclusively New York City or some other locality. See, e.g.,
Adler, 251 N.Y. at 470-71, 478 (New York City’s Multiple Dwelling Law
regulating tenement houses); City of New York v. New York, 67 Misc. 2d 513, 514
(Sup. Ct. N.Y. Cty. 1971) (rent control law for New York City), aff’d, 31 N.Y.2d
804 (1972); Uniform Firefighters Ass’n v. City of New York, 50 N.Y.2d 85, 90
(1980) (residency requirement for members of New York City municipal service
departments).3 Indeed, “it has long been recognized that New York City and other
3 See also Matter of Town of Islip v. Cuomo, 64 N.Y.2d 50, 57 (1984) (protection of drinking
water supply for Long Island); Robertson v. Zimmerman, 268 N.Y. 52, 60-61 (1935) (law
establishing sewer authority for City of Buffalo); Bugeja v. City of New York, 24 A.D.2d 151,
152 (2d Dep’t 1965), aff’d, 17 N.Y.2d 606 (1966) (law authorizing New York City to issue bond
to fund City’s civil service pension and retirement liabilities because “efficient, modern civil
service system” is area of state concern because “civil servants deal directly with such areas of
16
large municipal centers might reasonably receive different treatment.” Uniformed
Firefighters Ass’n, 50 N.Y.2d at 91.
These authorities demonstrate that the State had broad authority to enact the
Street Hail Livery Law, notwithstanding the fact that it specifically addresses
livery cars and yellow taxicabs based in New York City.
B. The State Legislature’s Findings And Legislative History, This Court’s
Precedent, And The Record Evidence All Demonstrate A Substantial
State Interest In Expanding Access To New York City’s For-Hire
Transportation System For Historically Underserved Communities And
People With Disabilities.
The Street Hail Livery Law addresses substantial unmet public
transportation needs. The “Legislative findings” section of the Act expressly states
the “substantial state concern” the Act furthers:
The legislature finds and declares that the public health, safety and
welfare of the residents of the state of New York traveling to, from
and within the city of New York is a matter of substantial state
concern, including access to safe and reliable mass transportation
such as taxicabs. The majority of residents and non-residents of the
city of New York do not currently have sufficient access to legal,
licensed taxicabs available for street hails in the city of New York.
Act § 1 (emphasis added).
The Legislature also articulated the State’s interest in improving access for
residents, commuters, and visitors with disabilities:
undoubted State concern as education, public health, housing and transportation”) (emphasis
added).
17
Additionally, the legislature finds and declares that it is a matter of
public health, safety and welfare to ensure adequate and reliable
transportation accessible to individuals with disabilities in the city of
New York . . . . [The current] supply of accessible vehicles is
insufficient to provide adequate and reliable transportation for the
residents of and the commuters and visitors to New York City who
have disabilities and therefore inhibits their basic daily activities.
Id. (emphasis added).
The section concludes: “Improving access to mass transportation, including
taxicabs, for the residents of and the commuters and visitors to New York City
furthers these matters of substantial state concern.” Id.
The legislative history further bolsters these findings. For example, the New
York State Senate Introducer’s Memorandum in Support of the Act states:
The bill would allow the City to implement a taxi plan that will more
effectively service all five boroughs of New York City and greatly
increase the availability of accessible taxicabs and for-hire vehicles.
The creation of this plan was prompted by three persistent mobility
problems: the lack of accessible vehicles for people with disabilities;
nearly non-existent taxi availability in underserved areas of the City
(e.g., boroughs outside Manhattan); and, insufficient taxi supply in
Manhattan’s central business district.
Taken together, both the issuance of HAIL licenses for underserved
neighborhoods and of new, accessible medallions, as authorized by
this legislation, would substantially improve the ability of City
residents and visitors, including persons with disabilities, to get where
they need to go quickly and easily, without having to own a car, and
would make living and traveling to New York City more accessible,
affordable, and enjoyable.
(T123-24.)
18
This Court has held that in determining whether a substantial state interest
exists, “we ‘rel[y] upon the stated purpose and legislative history of the act in
question’ … the wisdom of that determination is not for court review here.” PBA-
2, 97 N.Y.2d at 388 (quoting City of New York v. Patrolmen’s Benevolent Ass’n of
City of New York, 89 N.Y.2d 380, 392 (1996) (“PBA-1”)); see City of New York v.
State, 94 N.Y.2d at 591 (“We have consistently relied upon the stated purpose and
legislative history of the act in question to find, or reject, a substantial State
concern, and do so here.”).
Indeed, in the two cases primarily relied on by Supreme Court and Plaintiffs-
Respondents below in which this Court struck down a law on home rule grounds,
there was no statement of purpose provided by the Legislature. See PBA-1, 94
N.Y.2d at 392; Matter of Osborn v. Cohen, 272 N.Y. 55 (1936). In PBA-1, the
Court did not even consider the issue of whether the law related to a substantial
State interest, but rather struck the law down because the legislative history was
directly at odds with, and thus not “reasonably related” to, the effect of the law. 94
N.Y.2d at 393 (proscribing reliance on justifications “having no support in the
language, structure, or legislative history of the statute”). Similarly, in Osborn, the
Supreme Court had relied on its own strained chain of reasoning to find a
substantial State concern, but there was no indication that the Legislature issued a
statement of purpose or that the lower Court’s rationale played any role in the
19
actual enactment of the legislation. 272 N.Y. at 58-59. However, here, there is a
statement of purpose, as the Legislature’s Findings and legislative history state
with clarity the substantial State concern implicated by the Street Hail Livery Law.
Accordingly, Supreme Court was required to rely on the Legislature in determining
whether the Street Hail Livery Law was enacted in furtherance of a substantial
State concern.
Deference to the Legislature is particularly appropriate here because this
Court has long classified transportation, and specifically public transit in New
York City, as an area of substantial State concern. “Rapid transit for the city of
New York has, for many years, been a matter of public interest, affecting not only
the people of that city, but of the whole state. It has been generally regarded as a
state affair.” Matter of McAneny v. Bd. of Estimate & Apportionment of City of
N.Y., 232 N.Y. 377, 392-93 (1922) (upholding against home rule challenge law
creating transit commission for New York City); see also Salzman v. Impellitteri,
203 Misc. 486, 506-07 (Sup Ct. N.Y. Cty.), aff’d, 281 A.D. 1023 (1st Dep’t), aff’d
as modified, 305 N.Y. 414 (1953) (upholding law establishing New York City
Transit Authority because “laws relating to transit [do] not require a request by the
city … ‘[t]ransportation … like health and education, ha[s] been, by custom,
20
tradition and practice, considered as matters of State concern’”) (quoting Osborn,
272 N.Y. at 59)).4
In Admiral Realty Co. v. City of New York, one of the earliest cases
analyzing the home rule doctrine, the Court upheld the Rapid Transit Act of 1891,
which regulated subways and rapid transit railroads in New York City. 206 N.Y.
110, 139-40 (1912). The Court held that the law was not a “special city law,” that
is, one which relates to “municipal property and affairs,” under the home rule
provisions of the Constitution because “[i]t was adopted not only for the benefit of
the cities which, of course, would be affected, but of the public at large[.]” Id.5
The Street Hail Livery Law, which indisputably relates to the improvement
of access to New York City’s public, for-hire transportation system, particularly
for underserved areas of New York City and people with disabilities, furthers the
4 While this Court has not had occasion to address taxicabs and livery cars specifically, it has
routinely recognized that the State’s general, substantial interests justify legislation on specific
topics related to that interest. Hence, the State’s interest in public safety justified the law in
PBA-2 that regulated collective bargaining rights of police and fire unions so as to prevent a
disruption in service, 97 N.Y.2d at 388; the State’s interest in public health justified legislation
regulating multiple dwelling houses in New York City, Adler, 251 N.Y. at 476-77, and Long
Island drinking water, Matter of Town of Islip, 64 N.Y.2d at 57-58; and the “health and welfare
of the city of New York” justified a law permitting New York City to assess a tax to address
unemployment, New York Steam Corp. v. City of New York, 286 N.Y. 137, 143 (1935).
5 The Court of Appeals recognized in Adler that the Home Rule Amendment of 1923
deliberately used the phrase “property, affairs or government of cities” with the understanding
given to it in Admiral Realty -- that New York City rapid transit was an area of State concern that
was outside the scope of the Home Rule provisions. Adler, 251 N.Y. at 473 (“When the people
put these words in article XII [now Article IX] of the Constitution, they put them there with a
Court of Appeals’ definition, not that of Webster’s Dictionary.”). Thus, as a matter of
Constitutional intent, public transit for New York City is a matter of State concern.
21
same substantial State interests identified in this Court’s “transportation” case law,
both as a matter of precedent and logic. Just like the City’s rapid transit system,
taxicabs and livery cars affect not only the people of the City, but of the whole
state, and “benefit … the public at large.” Admiral Realty, 206 N.Y. at 140;
McAneny, 232 N.Y. at 393. See also Town of Islip, 64 N.Y.2d at 57 (upholding
law, passed without home rule message, protecting Long Island drinking water and
observing that the two counties contained “a substantial portion of the State’s
population … and encompasse[d] a substantial portion of the State’s commerce
and industry”).
The record evidence, including affidavits submitted by members of the
livery industry, vividly demonstrates the vital importance of the Street Hail Livery
Law to the public – particularly the millions of residents of and visitors to
underserved communities in New York City who rely on the livery industry. In
many cases, residents of these communities are not near subway or bus stations,
and this has left millions of people with limited transportation options. (T1449-50
¶ 14.) For these people, livery cars often fill the same role the New York City
subway plays for residents of the Central Business District of Manhattan. For
instance, livery cars regularly take people to work or take children to school.
(T1448 ¶ 6.)
22
The Street Hail Livery Law will benefit customers in these communities,
many of whom are minorities, immigrants or working class New Yorkers, by
permitting them access to safe, convenient, and legal street hail service, which they
have not had prior to the new law. (T1449-50 ¶ 14.) As the Black, Latino and
Asian Caucus of the New York City Council stated in a letter to Governor Cuomo
supporting the law, “[t]his measure would significantly improve the everyday lives
of residents of Upper Manhattan and the outer boroughs who seek the same level
of taxi service afforded to residents of Manhattan below 110th/96th St.” (T1396.)
The Act provides these residents with the convenience and expediency of simply
hailing a livery car without advance planning or waiting. When people are running
late, the weather is bad, or they have a sudden change in plans, they would benefit
from the opportunity to hail cars on the street. Businesses would benefit from
more efficient transportation for employees and for individuals who rely on livery
cars for shopping. When people need to get to a hospital, available street hail
service would permit them to get there quickly and safely, without requiring pre-
arrangement and waiting time. Moreover, people without cellphones would have
far greater opportunity for transportation. The Act also requires all HAIL-licensed
vehicles to have taximeters, and the TLC has mandated that such vehicles be
painted a uniform color and install credit card machines and GPS locators. (Act
§§ 5(g), 12; 35 RCNY §§ 82-33, 83-31; T136 ¶ 20.) Thus, the Act would provide
23
customers with safe, convenient, and legal service, and they would be easily able
to differentiate regulated HAIL-licensed vehicles from vehicles not licensed by the
TLC. (T1449-50, 1452 ¶¶ 14, 23.)
The Street Hail Livery Law also benefits visitors, commuters, and tourists in
New York City. As articulated in its Findings, the Legislature was concerned that
“the majority of residents and non-residents of the city of New York” do not have
sufficient access to street hail taxis and sought to improve access to mass
transportation for “residents of and the commuters and visitors to New York city.”
Act § 1. Visitors, commuters, and tourists frequently do not have their own cars
and rely on yellow taxicabs and livery cars for transportation. (T1453 ¶ 27; T136
¶ 21.) Indeed, estimates suggest that residents of suburban New York and out-of-
State and foreign visitors take between 15% and 30% of all yellow taxi trips.
(T279.) Under the Street Hail Livery Law, livery cars with HAIL licenses could
pick up visitors via street hail, including at popular locations outside the Central
Business District of Manhattan, such as Yankee Stadium, Citi Field, Coney Island,
and the beaches in Brooklyn. (T1453 ¶¶ 27-28.) The State has a substantial
interest in promoting and maintaining New York City’s status as a center of
commerce and tourism. See City of New York v. State, 94 N.Y.2d at 590 (noting
that the “stated intention” of repealing the commuter tax was “to make the City
24
more attractive for investment and growth, a goal with obvious implications for the
State”).
The Act also facilitates providing greater access to wheelchair accessible
yellow taxis and livery cars, which promotes the public safety and welfare for
these citizens. The Legislature found that just 1.8% of yellow taxis, and an even
smaller percentage of livery cars, are wheelchair accessible. Act § 1. Currently,
livery bases receive calls from people with disabilities but generally do not have
the capacity to provide service to customers with motorized wheelchairs. (T1453-
54 ¶ 29.) The Legislature’s findings emphasize that the lack of accessible
transportation imposes a substantial burden on persons with disabilities, preventing
them “from being able to rely on the street hail system to get to a destination
quickly, particularly in an emergency, or to travel to a location not near a subway
or bus stop.” Act § 1.
The Street Hail Livery Law would help ameliorate these problems by
creating an additional 2,000 yellow taxi medallions for accessible taxis and
requiring that 20% of each 1,000 of the 18,000 HAIL licenses be reserved for
accessible vehicles. Act §§ 5, 8. Recognizing that many livery bases do not have
accessible vehicles and often cannot afford the costly upgrades required to make
their vehicles accessible, the Act also makes HAIL license holders eligible to
receive up to $15,000 to purchase or retrofit an accessible vehicle. Act § 9.
25
Finally, the Street Hail Livery Law is also of vital importance to the livery
bases and their drivers. As the Black, Latino and Asian Caucus of the City Council
recognized, “the livery industry is comprised of community based small businesses
which employ thousands of drivers from all over the city including ‘mom and pop’
dispatchers from the districts we represent.” (T1396.)6 It would legitimize and
strengthen the livery industry, protecting these crucial small businesses, many of
which are minority-owned, and the jobs of tens of thousands of livery company
owners and drivers. (T1466 ¶ 5, T1454 ¶ 31.)
Notably, Plaintiffs-Respondents themselves have agreed that important State
interests are at stake. On May 24, 2011, when the yellow taxi industry was
supporting State legislation to facilitate street hails outside the Central Business
District of Manhattan (under which the benefits would have accrued to them),
Plaintiff-Respondent MTBOT took out a full-page advertisement in the Daily
News newspaper in support of such legislation. The ad urged that the legislation
would result in “Millions in Recurring Revenue for the City, State and the MTA,”
“Safer Taxi and Livery Service for Drivers and Passengers in the Boroughs,” “Jobs
6 The President of the New York Association of Independent Taxi Drivers (“ASOTINI”), an
organization representing approximately 15,000 drivers, urged the government to make it legal
for drivers to pick up passengers through street hails because of the economic impact on them of
being penalized for doing so in communities in which yellow taxis are not available. (T1466
¶ 5.) The Street Hail Livery Law would remove the risk of fines to livery bases and drivers for
picking up street hail passengers, and provide the public with lawful street hail transportation.
26
and Opportunities for Livery and Taxi Drivers to Rise Up the Economic Ladder,”
and “Improved Mass Transportation for All New Yorkers.” (T1459.)
Supreme Court ignored both this Court’s precedent finding that
transportation is an area of State concern and the mountain of record evidence
demonstrating in detail the nature of the interest in for-hire transportation furthered
by the Act. Supreme Court summarily concluded that “[h]ealth and safety are not
comparable to taxicab availability,” based on the erroneous reasoning that “[i]f
everybody in New York City died tomorrow, we would have a catastrophe; if all
housing in New York City disappeared tomorrow, we would have a disaster; if
nobody could find a taxicab tomorrow, we would have a hardship.” (T2158.) This
extraordinarily narrow interpretation of the home rule doctrine is, of course, not the
test. Suffice it to say that the lives or housing of all New York City residents
(thankfully) need not be at risk for a substantial State interest to arise. Numerous
authorities of this Court make this clear, not the least of which are those upholding
laws regulating public transit in New York City. Because the Street Hail Livery
Law is of great importance to New York State and millions of its residents, for all
of the reasons explained above, Supreme Court’s Judgment should be reversed.
27
C. The State’s Substantial Interest In New York City’s For-Hire
Transportation System Is Particularly Clear Because Livery Cars And
Yellow Taxicabs Frequently Travel Across City Lines And Play A
Crucial Role In New York State’s Transportation Network.
The State’s substantial interest in New York City’s for-hire transportation
system is particularly clear because livery cars and yellow taxicabs frequently
travel across City lines and play a crucial role in the State’s transportation network.
This Court has also long-recognized a substantial State interest in issues that
“transcend local boundaries.” Wambat, 41 N.Y.2d at 498 (recognizing that the
home rule doctrine furthers “strong local government” but “leav[es] the State just
as strong to meet the problems that transcend local boundaries, interests, and
motivations”) (emphasis added). As a result, the Court has consistently upheld
laws that touch on and affect more than one locality. See City of New York v. State
of New York, 94 N.Y.2d at 590 (commuter tax affecting non-residents of New
York City who travel into the City for work); Town of Islip, 64 N.Y.2d at 57
(protection of water supply for Nassau, Suffolk, and Queens counties); Robertson,
268 N.Y. at 60 (law regulating sewage system for Buffalo addresses a State
concern because pollution stemming from Buffalo affected “other communities
using the water … as well as the public generally”); City of New York v. Village of
Lawrence, 250 N.Y. 429, 440 (1929) (law affecting boundary line between New
York City and Town of Hempstead does not relate to the “property, affairs or
government” of a city).
28
While the New York City subways physically do not cross New York City’s
boundaries but are nonetheless regarded as a State concern, livery cars and yellow
taxis take millions of trips each year to points outside New York City.7 In this
sense, this appeal is actually the easy case in terms of assessing whether there is a
State, as opposed to a purely local, concern. The livery cars and taxicabs
themselves, and the passengers who ride in them, can and do easily move across
city lines. Indeed, the Legislature considered this particular purpose, as its findings
expressly refer to people “traveling to, from, and within the city of New York.”
Act § 1 (emphasis added).
Supreme Court grudgingly acknowledged that “the record demonstrates
some cross-border traffic (2% for livery vehicles; probably much less for
medallioned taxicabs) ....” (T2159.) Estimates indicate that people take more than
350,000 trips via livery car every day. (M1202 ¶ 6.) Thus, by Supreme Court’s
calculation, livery cars based in New York City make roughly 2.5 million trips
outside New York City each year (roughly 7,000 trips per day).8 The Street Hail
7 For example, livery cars are regularly called upon for pre-arranged rides to take passengers
from the Bronx to locations such as the Cross-County Mall in Yonkers or the Casino at Yonkers
Raceway, and to White Plains and other locations in Westchester County. Livery cars in Queens
regularly take passengers across the border into Nassau County. (T1450 ¶ 17; T1466 ¶ 8; T1470
¶ 5; T1474 ¶ 6.)
8 The TLC has a specific rate structure in place for trips in yellow taxis to destinations in
Westchester County or Nassau County, or to Newark Airport, 35 RCNY § 54-17(g), and some
portion of the approximately 470,000 daily yellow taxi trips go to these destinations beyond New
York City boundaries. (T276.)
29
Livery Law would permit residents of Northern Manhattan and the other four
boroughs to street hail a licensed livery car to take them outside New York City to
other parts of the State or to other states. This demonstrates that the Act impacts
not just New York City, but businesses and individuals outside New York City.
Supreme Court overlooked the interests of the residents of the communities
serviced by the livery industry by dismissing cross-border traffic as not a
“particular ‘concern’” or at least not one of “a substantial order of magnitude.”
(T2159.) The Court concluded that “[o]ccasional trips across the periphery of New
York City cannot justify the State Legislature in driving a stake through the heart
of home rule.” (Id.) But Supreme Court mistakenly focused on the 2% estimate.
Judge Cardozo in Adler rejected the notion that the question in home rule analysis
is whether the subject is “predominantly” a State concern. Adler, 251 N.Y. at 490.
The question is whether the interest of the State is “substantial”; in light of the case
law, it strains credulity to conclude that millions of trips per year across New York
City borders are not a substantial State interest, particularly when combined with
the State’s interests in access to transportation for City residents, commuters, and
visitors articulated above.
In addition, the Street Hail Livery Law furthers a substantial State interest
because livery cars and taxicabs are a crucial part of New York State’s integrated
transit network and provide a link to other forms of transportation that take
30
passengers outside New York City. Livery cars are regularly called on to pick up
passengers in New York City and take them to train and bus stations to leave New
York City, or to pick up passengers at those locations.9 The Street Hail Livery
Law would permit HAIL license holders to service these customers by street hails
without pre-arrangement, which is critical for customers being picked up from
these transit hubs, who often do not have the time or ability to call ahead for a car.
Similarly, yellow taxis provide transportation to and from hubs such as Grand
Central Station, Penn Station, and the Port Authority Bus Terminal in Manhattan,
and they are the number one means of transportation from Manhattan to the New
York City airports. (T276.) The State has a profound interest in ensuring access to
these transit hubs.
Supreme Court dismissed this evidence with the conclusory assertion that
“[w]hen all is said and done, railways are a State concern, taxicabs are a local
concern.” (T2159.) The Court accepted Plaintiffs-Respondents’ argument that
railways are “integrated into ‘the State-level transportation infrastructure governed
by the Metropolitan Transportation Authority’ and ‘are owned by the government
and operated as public transportation.’” (Id.) By contrast, the Court concluded
9 Livery cars pick up and take passengers to 242nd Street and Broadway (Van Cortlandt Park) in
the Bronx to catch the bus to Yonkers, Metro-North and Amtrak railroad stations including
Fordham Road in the Bronx and 125th Street in Manhattan to head to other counties, Pelham
Parkway in the Bronx to get to areas in Westchester and Rockland counties such as New
Rochelle, Mount Vernon, or Yonkers, and Long Island Railroad stations in Queens to head to
Nassau or Suffolk counties. (T1451-52 ¶ 21-22; T1467 ¶ 10; T1470-71 ¶ 7; T1474-75 ¶ 8.)
31
“the contents of the subject legislation are all New York City ‘stuff.’” (Id.) This
was incorrect as both a matter of fact and law.
First, the conclusion that the Act is unconstitutional because it addresses
New York City “stuff” contravenes the fundamental tenet of this Court’s Home
Rule Clause case law that the State can have an interest in issues of importance to
New York City. Indeed, this Court has upheld laws regulating static structures
which are permanently in New York City, such as multiple dwelling units and rent
control laws. See supra, Point I(A).
Moreover, just as subways restricted to New York City are integrated into a
broader transportation network, the record evidence noted above demonstrates that
livery cars and yellow taxicabs are a critical part of New York City’s – and New
York State’s – integrated transportation network as well. Even Intervenor-
Plaintiffs-Respondents acknowledged below that “livery service is a vital part of
the transportation network of New York City.” (M1143 ¶ 8.) Similarly, the “Taxi
Fact Book” relied upon by Plaintiffs-Respondents and Supreme Court touts the
“central transportation role” of yellow taxis, which it describes as a “vital part of
New York City’s transportation network.” (T271.) The mere fact that taxis and
livery cars are privately-owned, like apartments subject to rent control, does not
remove them from the realm of State interests. They are certainly forms of
32
“public” transportation.10 Like privately-owned common carriers such as bus
companies, taxis and livery cars are to be made available to all passengers.
In sum, by facilitating access to transportation between New York City and
points outside the City – both through direct trips out of the City via livery car or
yellow taxicab or through connections to other forms of mass transportation – the
Street Hail Livery Law would benefit not only residents in Northern Manhattan
and the other four boroughs, but also individuals and businesses outside of New
York City.
D. The Street Hail Livery Law Is “Reasonably Related” To The
Substantial State Interest In New York City’s For-Hire Transportation
System.
Having established that the State has a substantial interest in improving
access to New York City’s livery car and yellow taxicab transportation system, the
only question remaining is whether the Street Hail Livery Law is “reasonably
related” to that interest. Intervenor-Defendants-Appellants join in the arguments
by the City and State on this point, all of which will not be repeated here.
This Court’s case law makes clear that the “reasonable relationship” test is
easily met here. In PBA-2, the Court concluded that requiring New York City and
surrounding counties to allow their police and fire unions access to state-level
collective bargaining procedures was “rationally” related to the legislative purpose
10 Indeed, Taxicabs are “public transportation” as a matter of statutory law. See N.Y. Pub.
Health Law § 1399-o(1)(e) (defining “public means of mass transportation” to include taxis).
33
of enhancing public safety and preventing a disruption of public services; that
conclusion merited little discussion from the Court. 97 N.Y.2d at 388. In fact, in
only one case, PBA-1, did the Court find a lack of a “reasonable relationship.” 89
N.Y.2d at 393. But in that case, there were no legislative findings, and the Court
found that the statute was diametrically opposed to the proffered purpose of the
law reflected in the legislative history – to create uniformity in collective
bargaining impasse procedures – because it singled out New York City for
different treatment. Id.
Plainly a statute that creates 18,000 licenses for livery cars to conduct street
hails in areas underserved by yellow taxis, requires 20% of them to be wheelchair
accessible, and increases the supply of wheelchair accessible yellow taxicabs
furthers the State’s interest in improving access to New York City’s for-hire
transportation system and is directly and reasonably related to that end.
Despite the fact that the City Council did not join these suits challenging the
Act, Supreme Court erroneously accepted the political attack in the submissions of
the yellow taxicab industry, holding that “a law that shifts power from the City’s
legislative branch to its executive branch, and micro-manages the exercise of that
power, fails to bear a reasonable relationship to any such interest or concern.”
(T2136.) This ruling was not supported by any authority and is incorrect for all the
reasons demonstrated by the City and State. First, only the statute need be
34
reasonably related to a substantial State interest. PBA-2, 97 N.Y.2d at 388. The
manner in which the State Legislature chooses to implement its solution is not a
relevant consideration. Second, the Street Hail Livery Law does not shift any
power in the City; it simply delegates authority to carry out this law to the Mayor
and the TLC. The Legislature authorized creation of the 2,000 new wheelchair-
accessible medallions, and it was free to decide who can authorize their issuance at
the City level. Moreover, the City Council never had the unilateral power to
authorize the TLC to issue taxi medallions without approval by the State
Legislature, and it has not been stripped of its power to propose such increases in
the future.
If licenses and medallions are to be authorized to be issued to improve
access to for-hire transportation, it furthers that end to specify who authorizes
them, even if there could reasonably be a policy dispute about the wisdom of that
choice. In reality, given the political history and the yellow taxi industry’s
influence (see below, Point (I(E)), it would have been inimical to the State’s
concern of improving access to transportation to vest the City Council with the
power to authorize the new medallions and HAIL licenses. If the City Council did
nothing, the Legislation would be rendered a dead letter.
As for Supreme Court’s objection that the statute “micro-manages” the City,
that is nothing more than an objection to the wisdom of the law. (See T2161
35
(“Wouldn’t it just be easier to mandate that a certain percentage of all taxicabs in
all cities (not just New York) be wheelchair-accessible, and let each locality go
about deciding how to achieve that worthy goal?”) (emphasis in original)). While
Plaintiff-Respondents and Supreme Court may have preferred that the State
Legislature passed a different law, it did not. Whether the Street Hail Livery Law
is too detailed, not detailed enough, or poor policy for any number of reasons is not
a proper consideration under the home rule doctrine, as this Court has previously
established. Thus, Supreme Court’s ruling on the “reasonable relationship” prong
was clearly in error.
E. Supreme Court Erroneously Rejected The Legislature’s Findings As
Pretextual And Improperly Relied On Unfounded And Irrelevant
Speculation About The Legislature’s Motives.
As shown above, Supreme Court erroneously ignored the teachings of this
Court’s home rule decisions, rejected the Legislature’s findings, and disregarded
the record evidence buttressing those findings – all of which compel a conclusion
that the Street Hail Livery Law furthers a substantial State interest.11 Instead,
11 For all the reasons stated in the City and State Defendants’ briefs, Supreme Court applied the
incorrect tests. In particular, Supreme Court determined that the history of City regulation of
taxicabs is virtually dispositive of the home rule analysis, and it created out of whole-cloth a new
test, never before articulated by this Court, that only “inherent State interests,” primarily those
based on Constitutional provisions, are protected from home rule challenge. As this Court’s
recent cases demonstrate, history does not control the home rule analysis. In both PBA-2 and
City of New York v. State, the laws at issue took away historically local powers due to an
overriding State interest. PBA-2, 97 N.Y.2d at 388; City of New York v. State, 94 N.Y.2d at 591.
In addition, this Court has rejected the proposition that “legislation dealing with issues of State
concern must … look for its source to a particular provision in the Constitution.” Wambat, 41
N.Y.2d at 495.
36
Supreme Court adopted Plaintiffs-Respondents’ conjecture that the Legislature’s
stated purposes for the Act were pretextual. Supreme Court wrote that the
Legislature’s “findings” in the Act are the “tail that wags the dog,” and concluded
without any basis that “the determination to rescramble the City taxicab industry
(and, incidentally, government) came first, the ‘legislative findings’ came later,
quite possibly with the subject litigation in mind.” (T2157.) Apparently, Supreme
Court concluded that, because one provision of the Act allows the Mayor to
authorize the TLC to issue 2,000 wheelchair-accessible taxi medallions, the
purpose of the Act was not to increase access to for-hire transportation, but to
transfer power away from the City Council to the Mayor. This unbridled
speculation about the ulterior motives of the State Legislature is improper as a
matter of law, without foundation in the record, and incorrect.
First, an inquiry into the political motivations leading to passage of a State
law is irrelevant as a matter of law and has been foreclosed by this Court. In City
of New York v. State, the stated justification of the law repealing the New York
City commuter tax was “tax relief to State residents who live in communities
outside New York City.” 94 N.Y.2d at 590. The City argued, just as Plaintiffs-
Respondents do here, that the law should be struck down on home rule grounds
because the “true” political motivations underlying the statute were, inter alia,
electoral politics and hasty procedures were used to pass the statute. Id. at 591.
37
The Court of Appeals rejected this inquiry, recognizing that “[i]f the Legislature
might constitutionally pass such an act, if the act be clothed with all the requisite
forms of law, a court sitting as a court of law cannot inquire into the motives by
which the law was produced.” Id. (quotation omitted). Instead, this Court
emphasized that courts must rely on the “stated purpose and legislative history of
the act in question” to determine whether it furthers a State interest. Id.; see supra,
Point I(A).
Supreme Court found “telling” the lack of any evidence that “suburban or
upstate legislators, or indeed any legislators, spontaneously decided to address
New York City motor vehicle for-hire transportation.” (T2157.) But that is not
relevant; the Court need not concern itself with who decided the Act was a good
idea, whether it was spontaneous, or the motives of individual legislators.
Moreover, Supreme Court’s conclusions about the intent of the Legislature
were based on sheer speculation, contradicted by the record. Supreme Court itself
only went as far as to state: “Although placed first in the statute, “the [legislative]
findings probably came last in the legislators’ minds.” (T2157) (emphasis added).
Yet there was more than ample evidence in the record that lack of access to for-
hire transportation was a real problem. Supreme Court ignored it. Indeed, even
Plaintiffs-Respondents recognized this problem, and they supported earlier plans to
address it, including new street hail permits. (T1454-44 ¶ 33; T1459.) And
38
Supreme Court itself, in granting a temporary restraining order, recognized that
“[f]or decades, the problem of lack of legal, reliable taxi service in the outer
boroughs has proven intractable.” (T1179.)
In contrast with the evidence about the pressing need for the Act, there is no
evidence in the record that the State Legislature and the Governor supported the
Street Hail Livery Law for any reason other than they thought it was good policy
for New York State. There is, of course, no basis to conclude that the Mayor
exerted a Svengali-like influence over the entire State government and convinced
the Governor, the Republican-controlled Senate, and the Democratic-controlled
Assembly to pass a law on pretextual grounds, solely to aggrandize the Mayor’s
power and agenda (and, as shown above, it would be legally irrelevant).
Finally, Supreme Court’s selective and slanted portrayal of the history of the
Street Hail Livery Law ignores political reality. A far more plausible explanation
was reported in The New York Times the day after the law passed: “The bill’s
success was also a rare defeat for the yellow taxi lobby, a group of wealthy fleet
owners who have wielded immense political power for decades and have usually
succeeded at resisting changes to their industry.” (M173.) There are just 13,237
taxi medallions now -- fewer than there were in the 1930’s -- despite the enormous
increase in population, diversity and expansion in New York City. (T140 ¶ 31.)
Meanwhile, residents of Northern Manhattan and the other four boroughs have
39
gone without access to safe, reliable, and convenient for-hire street hail
transportation.
Despite this long recognized need for access to for-hire transportation, the
City Council has not taken action. When Mayors Koch and Dinkins attempted to
increase the supply of taxis to improve service, “[t]he industry, helped by
influential council members, successfully pushed back, taking advantage of the
Council’s oversight over the city’s [TLC].” (T1573.) When a plan to increase
street hail access was proposed by the TLC in 2011, it failed to even make it out of
the City Council’s Transportation Commission following a long series of meetings
with the yellow taxi industry’s lobbyists. (T1288-89 ¶¶ 10-17.) Indeed, when
legislation on the issue was subsequently considered at the State level, Plaintiffs-
Respondents themselves supported State legislation and recognized the importance
of improving access to yellow taxis and liveries in underserved communities --
when the benefit would have gone to the purchasers of yellow taxi medallions.
(T1459.)12
However, after much negotiation and compromise, the State Legislature
chose to adopt a very different plan, the essence of which constitutes the Street
12 In May 2011, Plaintiff-Respondent MTBOT urged the State Legislature to approve a plan
authorizing a new class of borough street hail taxis that would have been linked to the sale of
1,500 new yellow taxi medallions, such that each purchaser of a corporate medallion would be
entitled to operate six additional new borough street hail taxis and each purchaser of an
individual yellow taxi medallion would be entitled to operate one additional new borough street
hail taxi. (T1454-55 ¶ 33.) Plaintiffs Greater New York Taxi Association (“GNYTA”) and
Taxicab Service Association (“TSA”) also supported that plan. (Id.)
40
Hail Livery Law. Debunking Supreme Court’s speculation that the Act was
intended to “rescramble” the New York taxi industry, the Act was the result of a
long period of advocacy and negotiation by all stakeholders in the for-hire vehicle
industry and disability advocates. (T1456 ¶ 37.) Following overwhelming passage
by both houses of the State Legislature in June 2011, the Governor then undertook
an exhaustive process of meetings and deliberations in search of a compromise
over the course of months. (T1456 ¶ 37; T26-29 ¶¶ 48-60.)13 Ultimately, after a
final compromise on the issue of wheelchair accessible vehicles, Governor Cuomo
signed the legislation passed by the Legislature. (T1457 ¶ 39.)
The final legislation signed by Governor Cuomo was a result of
compromises that would improve transportation for millions of people, while
raising much needed revenue and improving accessibility options. Far from a
pretext, the purposes articulated by the Legislature were substantial and genuine.
The Legislature passed the Act to protect a substantial State interest when the City
Council failed to act. This Court has stated that the Home Rule provisions are no
impediment to State intervention in precisely such situations. As the Court
explained in Wambat: “[t]he issue is … whether the State may override local or
13 In letters dated July 25, 2011 and September 23, 2011 to Governor Cuomo, the Co-Chairs of
the Black, Latino and Asian Caucus of the City Council, which now comprises a majority of the
Council’s members, urged Governor Cuomo to sign the legislation previously passed by the
Legislature. (T1396, T1463.) Similarly, the New York State Puerto Rican/Hispanic Task Force
of the State Assembly echoed the same support for the bill, adding that “[l]egislators from all
over the state, especially minority legislators, remain solidly behind this legislation.” (T1400.)
41
parochial interests when State concerns are involved. That issue is, and has been,
resolved in favor of State primacy.” 41 N.Y.2d at 498. Supreme Court’s
Judgment should be reversed, and the Street Hail Livery Law should be upheld.
II. BECAUSE THE STREET HAIL LIVERY LAW INVOLVES A
SUBSTANTIAL STATE INTEREST, THE STATE CONSTITUTION
DID NOT REQUIRE DOUBLE ENACTMENT.
As Supreme Court recognized, the Double Enactment Clause of Article IX
Section 2(b)(1) of the New York State Constitution is not implicated when a law
involves a substantial State interest. (T2164); Wambat, 41 N.Y.2d at 491-92, 496-
97. Thus, this inquiry overlaps with the “home rule” analysis addressed in Point I
above. Because the Street Hail Livery Law furthers a substantial State interest in
access to New York City’s for-hire transportation system, it did not require double
enactment and should be upheld as Constitutional.
III. THE STREET HAIL LIVERY LAW DOES NOT GRANT
UNCONSTITUTIONAL EXCLUSIVE PRIVILEGES TO
LIVERY DRIVERS OR OWNERS.
Supreme Court also took the extraordinary step of striking down the Street
Hail Livery Law as unconstitutional for violating the Exclusive Privileges Clause,
Article III, Section 17 of the New York State Constitution. Intervenor-Defendants-
Appellants join in the arguments set forth by the City and State Defendants as to
why the Act does not violate the Exclusive Privileges Clause and therefore should
42
be upheld. Intervenor-Defendants-Appellants write separately here to highlight
several key points.
Supreme Court’s Decision and Order reflects an inexplicable hostility to the
livery industry. It is, to say the least, ironic that New York City’s yellow taxi
industry persuaded Supreme Court that livery drivers and owners would be the
beneficiary of an unconstitutional monopoly. The sole basis for Supreme Court’s
ruling is that, in the first three years, the Act allows only the tens of thousands of
livery car drivers and owners in good standing with the TLC and who have been
licensed for one year to apply for HAIL licenses.
First, as Supreme Court acknowledged, “literal monopolies appear to be the
central inquiry at which the ‘exclusive privileges’ clause is aimed.” (T2165.)
Matter of Union Ferry Co. of Brooklyn, 98 N.Y. 139, 150 (1885) (noting that the
prohibition was “evidently aimed at monopolies,” and at legislation “granting to
corporations or individuals not merely privileges and franchises not possessed by
others, but the right to exclude others from the exercise of enjoyment of like
privileges or franchises”). This exceedingly narrow prohibition has been applied a
very small number of times, and nearly always in instances where a monopoly
right was involved. See Fox v. Mohawk & Hudson River Humane Society, 165
N.Y. 517, 526-27 (1901) (striking down law granting only one humane society per
county the exclusive right to board dogs without a license); American Consumer
43
Indus., Inc. v. City of New York, 28 A.D.2d 38, 39 (1st Dep’t 1967) (striking down
grant of exclusive franchise to one company to sell and deliver ice in Hunts Point
Market). 14
The Street Hail Livery Law does not grant any privilege that remotely
approaches establishing a monopoly. Despite apparently recognizing this,
Supreme Court decided to strike the Act down anyway on the basis of its
perception of “unfairness of bestowing rewards on one entity of group” and that it
is “anticompetitive.” (T2165.) That erroneous reasoning ignores the law and the
facts. As a matter of law; “unfairness” and “anti-competitiveness” are not part of
the inquiry. In Consumers Union of U.S., Inc. v. State of New York, 5 N.Y.3d 327,
360-61 (2005), the first Exclusive Privileges case this Court decided in over one
hundred years, the Court held that, to violate the Exclusive Privileges Clause, a
“private or local” bill must: (1) “be directed at a single entity”; and (2) “confer a
privilege upon the single entity to the exclusion of all others.” The Act makes
HAIL licenses available to roughly 60,000 livery drivers and owners who meet the
eligibility requirements. (T138 ¶ 26.) A law that makes a license available to such
14 The cases cited by Supreme Court for the proposition that “statutes bestowing favors on
groups have also been declared unconstitutional,” (T2165) (emphasis in original), are inapposite.
The very few cases in which the Exclusive Privileges Clause has been applied all involved grants
of a right to a single entity or individual or an extremely narrow group of individuals. The Street
Hail Livery Law does not single out any specific company or entity for preferential treatment.
Neither the Supreme Court nor Plaintiffs-Respondents identified any case in which the State’s
decision to apply neutral licensing criteria to a broad class of licensees – whose only shared
characteristic is that they already meet the TLC’s licensing qualifications – has been invalidated.
44
a huge class – members of which compete with one another – is not aimed at a
“single entity” and does not run afoul of a prohibition on monopolies. Indeed,
contrary to Supreme Court’s irrelevant assertion that the law is “anti-competitive,”
the Street Hail Livery Law is unquestionably good for competition in the market
for street hail for-hire service outside the Central Business District of Manhattan,
as it will allow livery vehicles to provide service to underserved communities.
Moreover, Supreme Court did not even identify a “privilege” that is truly
“exclusive” within the meaning of the Constitution. The right to accept street hail
passengers is already held by yellow taxis, so is in no way exclusive. Supreme
Court erroneously concluded that the “privilege” granted by the Act is the right to
purchase HAIL licenses at a “bargain basement price,” which it speculated could
be re-sold for a “windfall” and constitutes a “bonanza to a limited but politically
potent group.” (T2164-65.) For the reasons articulated by the City and State,
limiting the initial issuance of HAIL licenses to existing licensed livery drivers for
a short-period of time does not constitute an “exclusive” privilege within the
meaning of the case law.
In addition, the Act was a valid exercise of the State’s police power, which
removes it from the ambit of the Exclusive Privileges Clause, and constitutes
another basis for overturning Supreme Court’s ruling. See City of Rochester v.
Gutberlett, 211 N.Y. 309 (1914); see also American Consumer Indus., 28 A.D.2d
45
at 39 (“It may fairly be stated if the granting of the exclusive franchise was a
proper exercise of the police power of the City of New York it is not subject to
successful attack.”). The Act is an eminently sensible solution to expanding access
to for-hire transportation service quickly, as the eligible individuals and entities
have been previously screened by the TLC and have a track record. Indeed, it
would make no sense for the TLC to issue licenses to individuals or entities who
do not operate or own livery cars and do not intend to use the licenses, only resell
them. Supreme Court did not even consider these issues.
Finally, Supreme Court did not cite any facts in the record to support its
speculative assertions about the value of the HAIL licenses; indeed, there are none.
Without any basis, Supreme Court suggested that the value of the HAIL licenses
may compare to the “million dollars or more” value of unrestricted yellow taxi
medallions. (T2164.) The notion that the Act is a “bonanza” (1238) because the
HAIL licenses are significantly less expensive than yellow taxi medallions is both
incorrect and illogical. Simply put, a HAIL license is not remotely analogous to a
taxi medallion. The exclusive right to pick up street hail passengers in the Central
Business District of Manhattan and at the airports, where 95% of yellow taxi
pickups occur, is what gives a taxi medallion its value. Given that yellow taxis
rarely take advantage of street hails outside those limited areas, that comprises at
most a tiny portion of the value of a taxi medallion. Because competition for street
46
hails outside of those areas will come from thousands of other HAIL licensees,
livery companies providing pre-arranged rides, and (very occasionally) yellow
taxis, there is simply no factual basis to conclude that the value of a HAIL license
will have anything to do with the value of an unrestricted taxi medallion.
Similarly, no evidence was presented to suggest that the value of a HAIL
license will skyrocket in the manner that Supreme Court apparently assumes it
will. Given the only evidence before Supreme Court,15 it is inconceivable that
HAIL licenses would appreciate much at all, and certainly not enough to deem
their re-sale a “windfall, at taxpayer expense, to a particular group.” (T2164.)
Indeed, absolutely nothing in the record suggests that livery companies or drivers
would resell their HAIL licenses, rather than use the licenses to provide street hail
service, which is precisely what the Act is intended to accomplish and the yellow
taxi Plaintiffs-Respondents are attempting to block.
For these reasons, and those set forth by the City and State, the Act does not
violate the Exclusive Privileges Clause.
15 The limitation on acquiring HAIL licenses is time bound and contains a built-in mechanism to
constrain their value. In the first year, HAIL licenses will be available for $1,500, but another
issuance of licenses will be available in the second and third years for $3,000 and $4,500,
respectively. Act § 5(d). All that a person who wants to enter the livery street hail business
would need to do is obtain a TLC license and operate a livery car for one year, and he or she will
become eligible for a HAIL license.
CONCLUSION
For the foregoing reasons, the Judgment appealed from should be reversed
and the Complaints dismissed, with costs.
Dated: New York, New York
January 17,2013
Respectfully Submitted,
GREENBERG TRAURIG, LLP
BY:~··
""Stephen L. Saxl
Israel Rubin
Ryan F. Harsch
MetLife Building
200 Park Avenue
New York, New York 10166
Tel: (212) 801-9200
Fax: (212) 801-6400
Attorneys for Intervenor-Defendants-
Appellants
Livery Base Owners Inc. and
The Excellent Car Service Inc.
47