New York County Clerk’s Index Nos. 102472/12 (MTBOT v. Bloomberg), 102553/12 (TSA v. State), and
102783/12 (GYNTA v. State) (Engoron, J.)
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 COUNCILMEMBER LEWIS 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,
– v. –
MICHAEL R. BLOOMBERG, in his official capacity as Mayor of the City of New York; THE
CITY OF NEW YORK; THE NEW YORK CITY TAXI AND LIMOUSINE COMMISSION
(“TLC”); and DAVID 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.
(caption continued on following page)
AMICUS CURIAE BRIEF OF MANHATTAN BOROUGH PRESIDENT
SCOTT M. STRINGER IN SUPPORT OF DEFENDANTS-APPELLANTS
ANDREW L. KALLOCH 1 CENTRE STREET, 19TH FLOOR
OFFICE OF THE MANHATTAN NEW YORK, NY 10007
BOROUGH PRESIDENT TELEPHONE: (212) 669-3872
FACSIMILE: (212) 669-4900
Attorney for Amicus Curiae
Dated: February 21, 2013
TAXICAB SERVICE ASSOCIATION; LOMTO FEDERAL CREDIT UNION; MELROSE
CREDIT UNION; MONTAUK CREDIT UNION; and PROGRESSIVE CREDIT UNION,
Plaintiffs-Respondents,
– v. –
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,
– v. –
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.
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................................i
INTRODUCTION ................................................................................................................1
INTEREST OF AMICUS CURIAE ........................................................................................2
STATEMENT OF FACTS AND OF THE CASE .................................................................2
ARGUMENT ........................................................................................................................4
I. THE CONSTITUTIONAL HISTORY OF HOME RULE IN NEW YORK
SHOWS THAT WHILE MUNICIPAL GOVERNMENTS EXERCISE
CONTROL OVER PURELY LOCAL AFFAIRS, THE STATE RETAINS
PLENARY AUTHORITY OVER ISSUES OF STATEWIDE CONCERN .... .................8
A. The Dillon Rule and the Early Constitutional Showdon Between State Authority and
Municipal Government.............................................................................................. 9
B. The Trifecta of Local Control: “Property, Affairs, or Government”........................... 13
C. Home Rule in the 21st Century................................................................................. 15
II. TRANSPORTATION IN THE CITY OF NEW YORK AND ITS
SURROUNDING COUNTIES IS CLEARLY A MATTER OF SUBSTANTIAL
STATE CONCERN.................................................................................................17
A. Legislative History Supports the Conclusion that Transportation In and Around the
New York City Metropolitan Area is a Matter of Substantial State Concern............... 17
B. The Legislature Does Not Forfeit Its Right to Regulate in Areas of Substantial State
Interest Through Its Past or Present Use of Home Rul Messages.............................. 21
III. NEW YORK CITY EXERCISES CONSIDERABLE CONTROL OVER THE
IMPLEMENTATION OF THE HAIL ACT ...................................................................22
IV. THE HAIL ACT WILL FUNDAMENTALLY TRANSFORM TAXI SERVICE
IN NORTHERN MANHATTAN, THE BRONX, QUEENS, BROOKLYN, AND
STATEN ISLAND, AND WILL VASTLY IMPROVE ACCESSIBILITY IN
THE NEW YORK CITY METROPOLITAN AREA....................................................23
V. COURTS HAVE HISTORICALLY SHOWN DUE DEFERENCE TOWARD
THE LEGISLATURE...............................................................................................25
CONCLUSION ..................................................................................................................27
TABLE OF AUTHORITIES
Cases
Adler v. Deegan, 251 N.Y. 467, 491 (1929) ...................................................................... 13
Berenson v. New Castle, 38 N.Y.2d 102 (1975)........................................................................... 16
Board of Sup’rs v. Water Power & Control Com., 227 A.D. 345 (3rd Dep’t 1929), aff’d 255 N.Y.
531 (1930)............................................................................................................................ 25
City of New York v. State of New York, 76 N.Y.2d 479 (1990) .................................................... 25
City of New York v. State of New York, 94 N.Y.2d 577 (2000) .................................................... 21
Clinton v. Cedar Rapids & M. R. R. Co., 24 Iowa 455 (Iowa 1868) ...................................... 10
Elmwood-Utica Houses v Buffalo Sewer Auth., 65 N.Y.2d 489 (1985) ....................................... 26
Giuliani v. Council of the City of New York, 688 N.Y.S.2d 413 (Sup. Ct. N.Y. Cty. 1999) .......19
Hunter v. Pittsburgh, 207 U.S. 161 (1907)...........................................................................11
MacWade v. Kelly, 460 F.3d 260 (2d Cir. 2006) ...................................................................4
Morin v. Foster, 45 N.Y.2d 287 (1978)................................................................................... 21
New York Steam Corp. v. New York, 268 N.Y. 137 (1935) .................................................... 22, 23
Noel v. New York City Taxi & Limousine Comm’n, 687 F.3d 63 (2d Cir. 2012) .......................24
People v. Kerr, 27 N.Y. 188 (1863)......................................................................................... 20
Robertson v. Zimmermann, 268 N.Y. 52 (1935)..................................................................... 13, 25
S. Burlington County NAACP v. Mt. Laurel, 67 N.J. 151 (N.J. 1975).................................... 16
Sonmax, Inc. v. New York, 43 N.Y.2d 253 (1977)........................................................................ 23
Taxicab Serv. Assn. v State of N.Y., 2012 NY Slip Op 32221U (Sup. Ct. N.Y. Cty. 2012) .. passim
Taylor v. Sise, 33 N.Y.2d 357 (1974) ...................................................................................... 26
Whalen v. Wagner, 4 N.Y.2d 575, 581 (1958) ......................................................................21
ii
Statutes
2012 N.Y. Laws Ch. 9, § 1 .................................................................................................. 7
L 1897, ch 378 ................................................................................................................... 20
L 1910, ch 262 ................................................................................................................... 20
L 1967, ch 717 ................................................................................................................... 18
N.Y. Gen. Mun. Law § 181(1)............................................................................................ 20
N.Y. Trans. Law § 10............................................................................................................... 17
N.Y. Trans. Law § 80(5)..................................................................................................... 19
N.Y. Veh. & Tr. Law § 498 ..................................................................................................... 18
NYC Admin Code § 19-504.2 ........................................................................................... 19
Other Authorities
11 New York State Constitutional Convention Committee, Problems Relating to Home Rule and
Local Government Aid (1938) ........................................................................... 10, 14, 21, 23
13 Temporary State Commission on the Constitutional Convention (1967)................................ 15
3 Charles Z. Lincoln, The Constitutional History of New York (1905) ............................ 11, 12, 23
Andrew Grossman, “Cab of Future: Still Yellow, But Different,” Wall Street Journal
(16 Nov. 2010) ....................................................................................................................... 5
Campbell Gibson, U.S. Bureau of the Census, Population of the 100 Largest Cities and Other
Urban Places in the United States: 1790-1990 (1998)........................................................ 12
Dana Rubenstein, “Cuomo’s Summit on Bloomberg’s Taxi Bill Yields the Promise of Maybe
More Talks, at Least,” Capital New York (4 Nov. 2011) ...................................................... 6
Dana Rubenstein, “Delay of Mayor’s Borough Taxi Plan Could Increase Next Year’s Deficit to
$4 Billion,” Capital New York (6 Jun. 2012)...................................................................... 25
Gary Buiso, “City Seeks ‘Dollar Vans’ to Operate on Dead MTA Routes,” New York Post
(Jul. 28 2010) ...................................................................................................................... 19
Gerald Benjamin, The Oxford Handbook of New York State
Government and Politics (2012)........................................................................ 11, 13, 14, 15
iii
Kathleen Horan, “The Taxi Bill’s Long, Winding Road,” WNYC News Blog (22 Dec. 2011) ...... 6
Lizzie Widdicombe, “Thin Yellow Line,” The New Yorker (18 Apr. 2011).................................. 5
Michael W. Robbins & Wendy Palitz, Brooklyn: A State of Mind (2001)................................... 10
N.Y. Const. Art. III, § 17 ....................................................................................................... 4
N.Y. Const. Art. IX, § 2(b)(2)............................................................................................ 4, 7
N.Y. Const. Art. IX, § 2(b)(2) (1938).................................................................................. 15
N.Y. Const. Art. XII, § 2 (1894).......................................................................................... 13
N.Y. Const. Art. XII, § 2 (1924).......................................................................................... 13
New York City Charter § 2303................................................................................................ 19
New York City Charter § 82................................................................................................. 2
Rep. of Joint Leg. Comm. on Taxicab Operation and Fares, Legis. Doc. No. 83, at 3 (1936)..... 17
Taxi and Limousine Commission, Annual Report to the New York City Council
(Jan. 10 2005)................................................................................................................. 20
Terrance Sandalow, The Limits of Municipal Power Under Home Rule: A Role for the Courts,
48 Minn. Law Rev. 643 (1964)............................................................................................ 12
Thomas Friedman, The World is Flat: A Brief History of the 21st Century (2005)...................... 16
1
INTRODUCTION
This case presents the question of whether a historic law designed to give New York City
the opportunity to improve access to safe, legal and convenient taxi service for over seven
million residents who live outside of the neighborhoods where yellow taxi service is generally
available, duly signed into law by the Governor following nearly a year of public debate which
included discussions between the Governor, Mayor, and the Plaintiffs-Respondents in this
lawsuit, complies with the home rule provision of the New York State Constitution. N.Y. Const.
Art. IX, § 2(b)(2).1
Section I of this brief will discuss the history of the home rule provision from its first
appearance in the State Constitution in 1894 to its pre ent day incarnation.
Section II will describe the substantial state interest in transportation, as evidenced by the
State Legislature’s continued role in the issuance of taxi medallions as well as legislative history
from the State’s creation of the Metropolitan Transportation Authority.
Section III will focus on the fact that the HAIL Act does not mandate a change, but rather
enables the City to improve taxi service within certain parameters. New York City therefore
exercises considerable control over the plan.
Section IV describes the critical importance of this legislation for the nearly 550,000
residents of Northern Manhattan, as well as residents of the Bronx, Queens, Brooklyn and Staten
Island, and people with disabilities and limited mobility individuals in all five boroughs.
Section V states that the Court of Appeals’ traditional deference to the political branches
on matters related to home rule should be considered in this case.
1 Amicus argument is limited to the home rule amendment. Amicus concurs with the arguments of Defendants-
Appellants with respect to the Double Enactment Clause, but does not take a position on the applicability of the
Exclusive Privileges Clause to the statute in question.
2
INTEREST OF AMICUS CURIAE
Amicus, Scott M. Stringer, is the Manhattan Borough Presid nt, representing nearly 1.6
million Manhattan residents. The Charter-mandated responsibilities of the Borough President
include reviewing certain public and private land-use projects in Manhattan, appointing members
to Community Boards and providing support to those boards, exercising direct control over a
portion of the City’s capital and expense budget and, most broadly, improving the quality of life
in Manhattan by monitoring service delivery and proposing changes to policies affecting New
Yorkers. New York City Charter § 82.
Mr. Stringer was elected Manhattan Borough President on November 8, 2005, and has
been in office since January 1, 2006. Prior to serving as Borough President, Mr. Stringer served
for thirteen years in the New York State Assembly, representing Manhattan’s Upper West Side.
Given Mr. Stringer’s decades of public service, he is keenly aware of the importance of
taxi and livery service to the 8.2 million residents of New York City as well as the millions more
who work in and visit the City every year. Moreover, having grown up in Washington Heights,
Mr. Stringer is deeply familiar with how the dearth of yellow cab service has plagued
neighborhoods in Northern Manhattan and The Bronx, Queens, Brooklyn, and Staten Island for
decades.
As an elected representative of the people’s interes s, the Borough President has a
significant interest in the outcome of this litigation and the improvement of taxi service to all
corners of the Borough and the City.
STATEMENT OF FACTS AND OF THE CASE
The facts of the case are set forth in detail in the parties’ briefs to this court. The basic
facts are as follows.
3
On June 20, 2011, the Assembly passed an initial version of the Street Hail Livery Law
(hereafter the “HAIL Act”) by a vote of 110-28.2 That plan provided for the sale of up to 1,500
yellow taxi medallions and the creation of up to 30,00 Borough Taxis.
On June 24, 2011, the Senate passed the Assembly bill b a vote of 40-21 and sent it to
the Governor’s desk.3
The Governor did not sign the bill. Instead, over the next six months, the Governor
convened meetings in Albany and in New York City involving many interested parties, including
certain named Plaintiffs-Respondents.
On December 23, 2011, Governor Cuomo signed a modified HAIL Act into law as
Chapter 602 of the Laws of New York 2011, which was further modified by Chapter 9 of the
Laws of New York 2012.
Notably, the HAIL Act included significant changes from the bill passed by the
Legislature in June. In contrast to the June bill, the HAIL Act allows the sale of up to 2,000
yellow taxi medallions and the creation of up to 18,000 Borough Taxis. In addition, the Act
requires all 2,000 yellow taxi medallions to be for accessible vehicles and mandates that 20
percent of Borough Taxis also be wheelchair-accessible.
On April 18, 2012, Plaintiffs-Respondents Metropolitan Taxicab Board of Trade et al.,
filed the complaint in the instant case.4
2 Bill No. A-8476 (2011), available at
http://assembly.state.ny.us/leg/?default_fld=&bn=A08496&term=2011&Summary=Y&Text=Y;
http://assembly.state.ny.us/leg/?default_fld=&bn=A08496&term=2011&Summary=Y&Votes=Y&Text=Y; Only 12
of the 64 Assembly members from New York City voted against the bill.
3 Bill No. S-5825, available at http://open.nysenate.gov/legislation/bill/A8496-2011; Only 6 of the 28 Senators from
New York City voted against the bill.
4 Approximately ten days later, Plaintiffs-Respondents Taxicab Service Association et al., commenced thir action.
On May 24, 2012, Plaintiffs-Respondents Greater New York Taxi Association et al., filed another complaint. The
cases were later consolidated. See p. 4, n. 5, infra.
4
On April 19, 2012, TLC approved rules implementing the HAIL Act, which were to
become effective on June 2, 2012.
On June 1, 2012, this court issued a temporary restraining order halting the sale/auction
of medallions and permits.
On August 21, 2012, the Supreme Court, New York County (Engoron, J.), declared the
HAIL Act “null and void” because it violated three s ctions of the New York State Constitution:
Article IX, § 2(b)(2) (the “Home Rule Clause”), Article IX, § 2(b)(1) (the “Double Enactment
Clause”), and Article III, § 17 (the “Exclusive Privileges Clause”). Taxicab Serv. Assn. v State of
N.Y., 2012 NY Slip Op 32221U, 33 (Sup. Ct. N.Y. Cty. 201 ).5
By letters dated December 14, 2012, this Court agreed to hear direct appeals from
Supreme Court’s Judgments.
ARGUMENT
In 2006, the Second Circuit Court of Appeals waxed poetic about the seminal place of the
New York City subway system in the City’s urban fabric:
The New York City subway system is a singular component of America’s urban
infrastructure. The subway is an icon of the City’s culture and history, an engine
of its colossal economy, a subterranean repository of its art and music, and, most
often, the place where millions of diverse New Yorkers and visitors stand elbow
to elbow as they traverse the metropolis.
MacWade v. Kelly, 460 F.3d 260, 264 (2d Cir. 2006).
While no public transit system in America can compare to the size of the New York City
Subway, the link between the yellow cab and New York City in the popular imagination reflects
5 The decision by the Supreme Court involved the consolidation of motions for preliminary and dispositive relief of
the three cases described above: Taxicab Service Association et al., v. State of NewYork et al.; Metropolitan
Taxicab Board of Trade et al., v. Bloomberg et. al.; nd Greater New York Taxi Association et al., v. State of New
York et al. These three cases remain consolidated before the Court. As a result, amicus refers to the Plaintiffs-
Respondents in the three cases—including intervenors—as “Plaintiffs-Respondents,” and to the Defendants-
Appellants—including intervenors—as “Defendants-Appellants.”
5
the remarkable scope of the taxi industry in New York City. See Andrew Grossman, “Cab of
Future: Still Yellow, But Different,” Wall Street Journal (16 Nov. 2010), available at
http://online.wsj.com/article/SB10001424052748703326204575617033297091158.html (New
York taxis have “an outsize importance in popular culture”). Every day, nearly 1.5 million
people take more than 485,000 taxi trips in New York in one of 50,000 vehicles driven by one of
nearly 100,000 drivers, making the system the seventh-largest transportation system in the
country. Lizzie Widdicombe, “Thin Yellow Line,” The New Yorker (18 Apr. 2011), p. 72; see
also “About TLC,” available at http://www.nyc.gov/html/tlc/html/about/about.shtml.6
And yet, for decades, this network has largely served neighborhoods in the “Manhattan
Core” (south of E. 96th St. and W. 110th St.) and the airports. According to GPS data provided
by the TLC, only 2 percent of yellow taxicab pickups are in Northern Manhattan.7 Ninety-five
percent of yellow taxicab pickups are in the Manhattan Core, at John F. Kennedy International
Airport or LaGuardia Airport.8 And only 3 percent of yellow taxicab pickups are in The Bronx,
Brooklyn, Queens, and Staten Island.9
In 2011, in an effort to address this longstanding issue, Mayor Bloomberg called for a
transformative change in the taxi system at his annu l State of the City Address.
This year, we’ll establish a new category of livery cars that can make on-street
pickups outside of Manhattan. It will give New Yorke s in all five boroughs
another safe, reliable and convenient option for getting around. Because whether
6 While the taxi system is not “public transit” in the traditional sense of the term, it is essentially mechanism by
which individuals who would be unable to afford theconvenience of automobile service alone are able to access
cars at an affordable price. Indeed, in part because of congestion and cost (parking in the Manhattan Core averages
over $500 a month) only 46 percent of City residents and 23 percent of Manhattan residents own a car. See
http://www.dailyfinance.com/2011/07/12/parking-car-10 most-expensive-us-cities/; http://www.nycedc.com/blog-
entry/new-yorkers-and-cars. These non-car owning households have been found to be significantly less wealthy than
car owners. See http://www.tstc.org/reports/cpsheets/Manhattan_factsheet.pdf;
www.nyc.gov/html/tlc/downloads/pdf/annual_report_2011.pdf, at 8.
7 NYC Taxi and Limousine Commission GPS Tripsheet data.
8 Id.
9 Id.
6
you’re standing on 42nd Street in Manhattan or 42nd Street in Sunset Park,
Brooklyn or 42nd Street in Sunnyside, Queens, you ought to be able to hail a cab.10
Soon after, the legislative process began in earnest. The lawyer-poet John Godfrey Saxe
famously said, “Laws, like sausages, cease to inspire respect in proportion as we know how they
are made.”11 However, while legislative logrolling has a long and infamous history in American
politics, the deliberation and debate over the HAIL ct was loud, boisterous, and very much
open to the scrutiny of the press and the public.
As WNYC, the local affiliate of National Public Radio, reported, “In the six months
between the announcement of the plan in January and the passage of the legislation in June, there
were feverish negotiations and loud rallies organized by various factions of the yellow and black
car stakeholders.” Kathleen Horan, “The Taxi Bill’s Long, Winding Road,” WNYC News Blog
(22 Dec. 2011), available at h tp://www.wnyc.org/blogs/wnyc-news-blog/2011/dec/22/year-
taxis/.
In addition, following the bill’s initial passage in June 2011, Governor Cuomo continued
to engage in high-level talks with stakeholders for another six months. In fact, the Governor
personally chaired two “taxi summits” calling industry stakeholders to his offices in New York
City and Albany. Id. According to Capital New York, a meeting in November 2011 included
“representatives from the city and from the state legislature…[and] representatives from every
segment of the industry.” Dana Rubenstein, “Cuomo’s Summit on Bloomberg’s Taxi Bill Yields
the Promise of Maybe More Talks, at Least,” Capital New York (4 Nov. 2011), available at
http://www.capitalnewyork.com/article/politics/2011/ /4019245/cuomos-summit-bloombergs-
taxi-bill-yields-promise-maybe-more-talks-.
10 www.nyc.gov/html/om/html/2011a/pr021-11.html.
11 The Daily Cleveland Herald, (29 Mar. 1869), cited in Fred Shapiro, “Quote…Misquote,” The New York Times (21
Jul. 2008), available at http://www.nytimes.com/2008/07/21/magazine/27wwwl-guestsafire-t.html?_r=1.
7
The discussions were apparently constructive. As the spokesperson for one of the lead
Plaintiffs-Respondents in this lawsuit stated at the time, “Everyone had an opportunity to talk. It
was a lot of listening. And most of the issues thatwe’ve been working with and working through
were raised.” Id.12
In its final form, the Borough Taxi law authorized, but did not require, the City to issue a
new class of taxi permit (a “HAIL” permit or “Borough Taxi” permit) for service in underserved
neighborhoods outside the Manhattan Core, as well as up to 2000 additional yellow taxi
medallions, provided those medallions are for accessible vehicles.
Describing 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” as a “substantial state concern,” the
bill stated what seven million New Yorkers already know: “[that] the majority of residents and
nonresidents of the city of New York do not currently have access to the necessary amount of
legal, licensed taxicabs available for street hails when traveling within the city.” 2012 N.Y. Laws
Ch. 9, § 1.
Months before the plan was to take effect, Plaintiffs-Respondents filed the instant lawsuit
seeking to block the plan, arguing that its passage violates the home rule amendment of the New
York State Constitution. N.Y. Const. Art. IX, § 2(b) 2).
However, the history of the home rule clause, since ts first appearance in the New York
State Constitution in 1894 to its most recent amendment in 1963, suggests that the HAIL Act
does not run afoul of the Constitution in the manner described by Plaintiffs-Respondents and the
lower court.
12 The deliberations were not just for show. In fact, they led to significant changes in the legislation ultimately
signed into law in December 2011 and further modifie in February 2012. See Statement of Facts, upra, p. 3.
8
Just as importantly, the state clearly has a substantial interest in downstate transit issues,
particularly a taxi system that makes nearly a half-mi lion trips daily in the five boroughs of New
York City and surrounding counties. The legislative history of the Transportation Law and the
Public Authorities Law, under which the Metropolitan Transportation Authority was created,
further prove the significance of this interest.
Moreover, the bill, as passed by the State Legislature, does not require TLC to make any
changes to the existing taxi system. Rather, it provides the Mayor—a democratically-elected
official answerable to voters in all five boroughs—with administrative authority to make changes
within set parameters and does not change existing rules related to public notice and comment
required for rule promulgation. Contrary to Justice Engoron’s assertion, Taxicab Serv. Assn.,
2012 NY Slip Op 32221U, at 24, home rule is not designed to impose separation of powers
principles on municipalities, but rather maintain an appropriate balance between state and local
authority.
Furthermore, the fact that the State Legislature has specifically delegated authority over
commuter vans to the City, but has not taken similar steps with regard to the City’s taxi system,
suggests that the State continues to retain—as it always has—control over the issuance of
additional taxi medallions, notwithstanding Justice Arthur Engoron’s contrary statement. Id at
23.
I. THE CONSTITUTIONAL HISTORY OF HOME RULE IN NEW YORK
SHOWS THAT WHILE MUNICIPAL GOVERNMENTS EXERCISE
CONTROL OVER PURELY LOCAL AFFAIRS, THE STATE RETAIN S
PLENARY AUTHORITY OVER ISSUES OF STATEWIDE CONCERN
Since the 19th century, New Yorkers have forcefully argued about the balance between
state and local power in the Empire State. Some havasserted that, as creatures of the State,
municipal governments lack unilateral authority over even the most distinctly local affairs.
9
Others have claimed that municipalities should enjoy a broader sphere of influence over
governance within its borders.
The history of New York’s home rule clause shows that at while New Yorkers had
multiple chances to adopt an absolutist approach on one side or the other, they instead chose a
middle path where cities and towns exercise home rule power over purely local affairs, while the
State retains broad control over areas of substantial state concern.
A. The Dillon Rule and the Early Constitutional Showdon Between State Authority and
Municipal Government
The constitutional history of New York’s home rule provision begins in 1868, when an
Iowa Supreme Court Justice by way of Northampton, New York—John Forrest Dillon—set forth
a doctrine that would profoundly shape the relationship of state/municipal government in
America. The “Dillon Rule”, as it came to be known, emerged in the case of City of Clinton v.
Cedar Rapids and Missouri River Rail Road Company.
In the case, the City of Clinton, Iowa, claimed that the railroad company was not
authorized to build a proposed track in the city and that the company had no right to use the
street without the city’s consent. The Iowa Supreme Court rejected this argument, finding that
the legislature did not give the city power as a public municipal corporation to prevent the
construction of the railroad. In a passage that would reverberate throughout the nation, Chief
Justice Dillon declared:
Municipal corporations owe their origin to, and deriv their powers and rights
wholly from, the legislature. It breathes into them the breath of life, without which
they cannot exist. As it creates, so it may destroy. If it may destroy, it may abridge
and control. Unless there is some constitutional limitation on the right, the
legislature might, by a single act, if we can suppose it capable of so great a folly
and so great a wrong, sweep from existence all of the municipal corporations in
the State, and the corporation could not prevent it. We know of no limitation on
this right so far as the corporations themselves ar concerned. They are, so to
phrase it, the mere tenants at will of the legislature.
10
Clinton v. Cedar Rapids & M. R. R. Co., 24 Iowa 455, 475 (Iowa 1868); see also 11 New York
State Constitutional Convention Committee, Problems Relating to Home Rule and Local
Government Aid 35 (1938) (“Under the American political system, municipalities have been
traditionally regarded as creatures of the sovereign or the people acting through the agency of
representatives. After the Revolution, the charter-granting power became exclusively vested in
the State legislative body, and whatever rights, powers, and privileges the municipal corporation
exercised were granted by charter.”).
Nearly forty years later, the Supreme Court of the United States cited the “Dillon Rule” in
holding that the 14th Amendment prevented a municipality from objecting to state action related
to its consolidation with another city. In Hunter v. Pittsburgh, the City of Allegheny,
Pennsylvania claimed that its consolidation with Pittsburgh violated the Due Process Clause of
the 14th Amendment. The City had
opposed consolidation from the
start and while the combined vote
of the residents of Pittsburgh and
Allegheny supported consolidation,
the residents of Allegheny voted
firmly against it.13
The Court held that the
state-endorsed consolidation did not violate the 14th Amendment, since the municipality itself
was subordinate to the interests of the state.
13 A similar situation nearly unfolded in New York at the time of the consolidation of the five boroughs. In a
citywide referendum in 1895, voters supported consolidation by a vote of 176,170 to 131,706. However, the
measure passed in the City of Brooklyn by a mere 277 votes. The ambivalence of Brooklyn is showcased in a
famous cartoon from Puck Magazine in 1894 titled “Selfish Objections to a Good Match.” Michael W. Robbins &
Wendy Palitz, Brooklyn: A State of Mind 331 (2001). The cartoon, reproduced above, shows “Father
Knickerbocker” (representing New York) proposing marriage to “Miss Brooklyn” while Brooklyn’s newspapermen
and politicians strenuously object below.
11
Municipal corporations are political subdivisions of the State, created as
convenient agencies for exercising such of the governm ntal powers of the State
as may be entrusted to them…The number, nature and duration of the powers
conferred upon these corporations and the territory over which they shall be
exercised rests in the absolute discretion of the State…The State, therefore, at its
pleasure may modify or withdraw all such powers, may take without
compensation such property, hold it itself, or vest it in other agencies, expand or
contract the territorial area, unite the whole or a part of it with another
municipality, repeal the charter and destroy the corporation. All this may be done,
conditionally or unconditionally, with or without the consent of the citizens, or
even against their protest. In all these respects the S ate is supreme, and its
legislative body, conforming its action to the state constitution, may do as it will,
unrestrained by any provision of the Constitution of the United States.
Hunter v. Pittsburgh, 207 U.S. 161, 178-179 (1907).
Dillon’s Rule came to dominate issues of local/state power in the latter half of the 19th
century. Prior to the passage of New York’s first Home Rule amendment in 1894, the State
Legislature exercised direct and nearly-complete control over municipalities—a power it did not
shirk from using. In fact, more than a quarter of all laws passed in Albany in 1870 dealt directly
with a particular village(s). Gerald Benjamin, The Oxford Handbook of New York State
Government and Politics 230 (2012).
In his seminal work on New York’s Constitutional history, Charles Lincoln found that
prior to 1894, local governments were limited to chosing their own local officers and to the
limitation of municipal indebtedness. 3 Charles Z. Lincoln, The Constitutional History of New
York 605 (1905).14
Around the turn of the 20th century, however, the Dillon Rule became increasingly
controversial. The Progressive Movement had spurred th widespread expansion of public
schools supported by local taxation, leading many Americans to believe that the Dillon Rule was
no longer in tune with the respect they believed should be accorded to municipal governments.
14 Lincoln noted (pp. 608, 621) that a modicum of h me rule power has been present in New York since the
founding of the New Amsterdam colony in the 17th century, at which time the Dutch West India Company was
vested with the power to build forts, appoint governors, keep order, and promote trade.
12
On the other hand, as urbanization took hold in the decades following the Industrial Revolution
and the need for public services increased, state legislatures began to assert greater influence in
the governing of cities. See Terrance Sandalow, The Limits of Municipal Power Under Home
Rule: A Role for the Courts, 48 Minn. Law Rev. 643, 647 (1964).15
It was during this period that many states, including New York, first passed “home rule”
or “municipal governance” amendments to their state constitutions. The 1894 Constitutional
Convention opened with “public sentiment in favor of s me plan of treating municipal affairs
which would give the people directly interested larger opportunities of control over subjects of
local administration.” Lincoln, supra at 605-606.
The debate over home rule saw New Yorkers generally sp it into two camps: (1) those
advocating for something approaching complete municipal autonomy; and (2) those who
believed that while a sphere of topics should be left to local control, the state legislature should
exert substantial control of subjects which affect the whole state. Id. at 606.
As a result of this split, the issue of local/state control was “[o]ne of the really great
problems which confronted [the 1894] Convention,” taking up 16 days of deliberations. Id at
626, 636. The result was a sound defeat for the absolutists and the continued preeminence of the
Dillon Rule.
The policy conferring on a city absolute sovereignty over specified local subjects, which
had been recommended by the Tilden Commission of 1875 (named for then-Governor Samuel
Tilden) and again by the standing committee on cities at the 1894 Convention, was rejected, and
15 The population of the City of New York soared from 1.5 million in 1890 to 5.6 million in 1920 as a result of
consolidation, immigration, and industrialization. Campbell Gibson, U.S. Bureau of the Census, Population of the
100 Largest Cities and Other Urban Places in the United States: 1790-1990 (1998), available at
http://www.census.gov/population/www/documentation/twps0027/twps0027.html.
13
the state “continued to possess … undiminished authority over the government of every part of
its territory.” Id. at 650.
As Charles Lincoln concluded, “There are not and cannot be any free cities as the term is
understood and applied to the cities of the middle ag s, nor any autonomous cities like those of
ancient Greece, but each state, as a larger municipal corporation, is the creature of the nation,
and each city, or subordinate municipal corporation, is the creature of the state.” Id. at 607.
B. The Trifecta of Local Control: “Property, Affairs, or Government”
Despite the continued vitality of the Dillon Rule, the 1894 Convention was not a total
loss for advocates of additional municipal authority. The 1894 Constitution bestowed upon cities
the power to veto special legislative enactments relating to their “property, affairs or
government.” N.Y. Const. Art. XII, § 2 (1894).
While the Constitution of 1924 amended the home rulclause, it retained the phrase
“property, affairs or government.” N.Y. Const. Art. XII, § 2 (1924).16 In the ensuing decade, this
Court issued a series of rulings that have formed th bedrock of constitutional home rule
jurisprudence for the past 90 years. See, e.g. Adler v. Deegan, 251 N.Y. 467, 491 (1929) (“if the
subject be in a substantial degree a matter of State concern, the Legislature may act, though
intermingled with it are concerns of the locality…”) (Cardozo, J., concurring); Robertson v.
Zimmermann, 268 N.Y. 52, 59 (1935) (“An act designed to remedy conditions affecting the
public generally, though imposing restrictions or obligations upon a particular municipality as a
means of affecting the larger purpose can hardly be said to be local in its effect.”).17
16 The 1924 Constitution also included an important exception to home rule. The so-called emergency message
clause provided that the Legislature may pass special laws if two conditions are fulfilled: (1) A bill received “on
message from the governor declaring that an emergency exists,” which is (2) passed by the “concurrent action of
two-thirds of the members of each house,” becomes a valid special or local law. Benjamin, supra at 466.
17 The briefs of Defendants-Appellants ably navigate this litany of cases in further detail. See Brief of Defendant-
Appellant City of New York (hereafter “City’s Br.”), pp. 28-29; Brief of Defendant-Appellant State of New York
(hereafter “State’s Br.”), pp. 38, 48-49.
14
In part as a result of these rulings, home rule was once again a topic of intense debate at
the New York Constitutional Convention of 1938. The Poletti Report18—a document
commissioned by Governor Herbert Lehman prior to the start of the convention—posed the
following questions to the delegates:
(1) Should the fields of special legislative power of State and city be made
mutually exclusive?
(2) Should one of the following alternatives be adopted in the interests of
clarification of the phrase “property, affairs or government”?
(a) Replace the phrase “property, affairs or governme t” with an
enumeration of subject matter intended to be covered.
(b) Retain the phrase “property, affairs or governme t” with a
supplementary definition.
New York State Constitutional Convention Committee, at 15.
At first glance, these questions seem designed to press delegates into considering
strengthening the power of home rule. However, other passages from the Poletti Report clearly
indicate that the absolutist position shared by many in 1894 had been buried for good. “The goal
of home rule is not complete autonomy, but rather a division of governmental responsibility
between State and city. Its purpose is to permit local control of matters which are best
administered locally, without legislative interference by the State.” Id. at 17. Moreover, the
Poletti Report added, “Economic change has, in large degree, served through the years to bring
more unity to interests throughout the State.” Id. at 7 (emphasis added).
In 1938, it was still an open question as to whether various issues, while of vital
importance, were of truly statewide concern. As the Constitutional Convention Committee wrote,
18 The State commissioned the Poletti Report—chaired by Charles Poletti, counsel to the Governor a d later
Lieutenant Governor and Governor, himself— to help guide the delegates. The Poletti Report, as it came to be
known, was designed to be “non-partisan and non-political in character and in motive, to undertake anddirect the
preparation and publication of accurate, thorough, and … impartial factual studies on the important phases of
government, certain to be considered at the Constitutional Convention.” Benjamin, supra at 4.
15
“Is low-cost housing, for instance, a State-wide problem, or a local one, to be treated separately
by each city?” Id. at 8.
Despite these open questions and numerous calls for a h me rule amendment of greater
strength and specificity, the formulation ultimately adopted maintained the phrase “property,
affairs or government” and implicitly endorsed the Court of Appeals’ narrow interpretation of
the home rule amendment. N.Y. Const. Art. IX, § 2(b)(2) (1938).
The most recent changes to the home rule amendment took place in 1963.19 While far
from a radical departure, the 1963 Constitution gave the State more authority over local affairs
than the 1938 Constitution. The 1938 Constitution allowed the State to pass special laws only via
a two-thirds vote upon a home rule request. Under th 1963 Constitution, the Legislature may
pass a special law by two-thirds vote upon a messag from the Governor even in the absence of a
home rule message, with the notable exception of the City of New York. 13 Temporary State
Commission on the Constitutional Convention 80 (1967).
When all was said and done, however, the 1963 Convention kept the phrase “property,
affairs or government” as the basic yardstick for hme rule power. Id. at 86; see also Benjamin,
supra at 484.
C. Home Rule in the 21st Century
If economic change had, in 1938, already served “to bring more unity to interests
throughout the State,” supra, p.14, 75 years later, cities across the Empire State—from Niagara
Falls to New York—are more tightly linked than ever b fore. Globalization has flattened our
world, and with it, our states as well. See Thomas Friedman, The World is Flat: A Brief History
19 The last constitutional convention to be held in New York took place in Albany from April 4 - September 26,
1967. As in 1938, the State Commission on the Constitutional Convention created a series of briefing papers about
various topics of interest, including local government. Available at
http://www.nysl.nysed.gov/scandocs/nyconstitution.htm The proposed Constitution was submitted to the vot rs on
November 7, 1967 at a general election. All of the 1967 Convention’s proposals were rejected by the People.
16
of the 21st Century (2005). No longer are cities—once separated by week-long journeys—
economically distinct silos. Rather, cities and towns interact continuously in commerce and
culture, leading to the creation of common problems requiring common solutions.
Courts have become more attuned to the increasingly i tegrated nature of local, state, and
regional governance. In 1975, this Court answered th question posed by the Poletti Report
concerning whether low-income housing was a matter of state concern with a resounding yes. In
Berenson v. New Castle, the Court held that “consideration must be given to regional needs and
requirements” when dealing with municipal zoning ordinances. 38 N.Y.2d 102, 110 (1975).
The Court noted that while New Castle itself may alre dy have enough multiple-dwelling
units to satisfy its present and future populations, “residents of Westchester County, as well as
the larger New York City metropolitan region, may be searching for multiple-family housing in
the area to be near their employment or for a variety of other social and economic reasons.” Id
The Court thus concluded,
There must be a balancing of the local desire to maintain the status quo within the
community and the greater public interest that regional needs be met. Although
we are aware of the traditional view that zoning acts only upon the property
lying within the zoning board's territorial limits, it must be recognized that
zoning often has a substantial impact beyond the boundaries of the
municipality. Thus, the court, in examining an ordinance, should take into
consideration not only the general welfare of the residents of the zoning township,
but should also consider the effect of the ordinance on the neighboring
communities…While the people of New Castle may fervently desire to be left
alone by the forces of change, the ultimate determination is not solely theirs.
Id. at 110-111 (emphasis added); see also S. Burlington County NAACP v. Mt. Laurel, 67 N.J.
151, 174 (N.J. 1975) (holding that cities “cannot foreclose the opportunity of the classes of
people mentioned for low and moderate income housing and in its regulations must affirmatively
afford that opportunity, at least to the extent of he municipality’s fair share of the present and
prospective regional need therefore”) (emphasis added).
Of course, while low-income housing is a matter of state concern that does not and
should not prevent the Legislature from delegating certain powers over housing or other issues to
17
municipalities where appropriate. For instance, even though transportation in the metropolitan
region has long been a matter of substantial state concern, see infra, Part II, the State has
delegated significant authority to the Taxi and Limousine Commission and other regional transit
agencies, such as the Niagara Frontier Transportation Authority.
Ultimately, while the world may no longer be round, there remain issues that are
exclusively the provenance of municipalities. The qu stion in the instant case is whether
transportation in general and taxi service in particular is one such issue. Both legislative history
and case law indicate that transportation is clearly a matter of statewide concern.
II. TRANSPORTATION IN THE CITY OF NEW YORK AND ITS
SURROUNDING COUNTIES IS CLEARLY A MATTER OF
SUBSTANTIAL STATE CONCERN
A. Legislative History Supports the Conclusion that Transportation In and Around the
New York City Metropolitan Area is a Matter of Substantial State Concern
For generations, transportation within the five boroughs of New York City, as well as in
the metropolitan area writ large, has been an issue of substantial state concern. As early as 1935,
the State Legislature had created a committee to ensur the “[s]afe, adequate, and efficient
taxicab operation at just and reasonable rates…in large cities in this State.” Rep. of Joint Leg.
Comm. on Taxicab Operation and Fares, Legis. Doc. N. 83, at 3 (1936) (cited in City’s Br. at
7). The Committee asserted that said operation was “an indispensible transportation service
auxiliary to rapid transit and other transportation systems.” Id.
In 1967, the State of New York created a new Transportation law, finding that
It is…the policy of the state of New York that adequate, safe and efficient
transportation facilities and services at reasonable cost to the people are essential
to the economic growth of the state and the well-being of its people and that the
planning and development of such facilities and servic s shall be coordinated by a
state department of transportation with overall responsibility for balanced
transportation policy and planning.
18
N.Y. Trans. Law § 10.
As part of this transformative act, the State created the Metropolitan Transportation
Authority, further entrenching state control over transportation networks in New York City.
In a letter to Governor Nelson Rockefeller expressing support for the bill, the Mayor of New
York, John Linsday, wrote, “Transportation in metropolitan New York by definiti on
transcends the governmental or logical boundaries of any one jurisdiction. It demands a
concert of planning, financing, and operations.” Letter from Mayor John Lindsay to Governor
Nelson Rockefeller (Apr. 12, 1967), L 1967, ch 717 (emphasis added).
Lindsay added that “This program will provide a modern, unified transportation system
based on sound and responsible financing...which demonstrates the value of cooperation between
the City and State in achieving mutual ambitions.” Id 20
The state interest in transportation has not abated in the decades that followed. In 2006,
Governor Pataki signed a significant amendment to the Vehicle and Traffic Law governing
interjurisdictional for-hire transportation. The legislative findings attached to that bill suggest the
continued vitality of transportation in New York City as a state interest of the first order:
The legislature finds that for-hire transportation s a major source of moving
people in and around the city of New York. In the city alone, it is estimated that
for-hire transportation services provide over one million passenger rides per day.
Many for-hire transportation providers cross jurisdictional boundaries in the
course of their daily business. However, in the course of such trips, they often
face conflicting local regulatory requirements and may even be prevented from
operating in jurisdictions in which they are not licensed. It is important both that
for-hire transportation providers be able to cross juri dictional boundaries when
necessary without undue difficulty or expense, and that local regulatory bodies be
able to ensure that their constituents are being served by transportation providers
that meet appropriate standards of safety and responsibility.
20 Governor Rockefeller harbored equally-optimistic hopes for the MTA. In his approval memo accompanying the
bill, he wrote, “This legislation, combined with the voters’ approval in November of the $2.5 billion transportation
capital funding bond issue, would mark the greatest transportation advance taken by the State of New York to
prepare the way for a future of promise, prosperity and progress since the Erie Canal opened in 1825.” Governor’s
Approval Memorandum 2 (1967), L 1967, Ch. 717.
19
2006 N.Y. Laws, ch 549, § 1 (N.Y. Veh. & Tr. Law § 498).
Furthermore, even as the State has delegated responsibility for certain types of transit to
cities, its failure to similarly delegate plenary authority over taxi service shows the continued,
unbroken state interest in these services.
Following a series of transit strikes in 1980, commuter vans proliferated outside the
Manhattan Core. These vans, despite providing transportation services within New York City,
were regulated by the New York State Department of Transportation until 1992, when
Transportation Law § 80(5) allowed the City to assume local control over the vans. Giuliani v.
Council of the City of New York, 688 N.Y.S.2d 413, 415-416 (Sup. Ct. N.Y. Cty. 1999).
Transportation Law § 80(5) states that the commissioner of the State Department of
Transportation:
[S]hall not have jurisdiction over the regulation of any van service or other
common carrier of passengers by motor vehicle covered under article seven of
this chapter when such van service or other such common carrier is operated
wholly within the boundaries of such city or is operat d partly within such city if
the partial operation consists of the pick up and discharge of passengers wholly
within such city, when such city has adopted an ordinance, local law or charter to
regulate or franchise such operations.
N.Y. Trans. Law § 80(5).21
The fact that the State Legislature specifically delegated its authority over commuter vans
that operated within the confines of the five boroughs suggests the following: (a) that the State
Legislature assumed it had authority to regulate those vans based on its plenary control over
21 The City Council, armed with authority over jitney vans, quickly moved to restrict their operation on City streets.
See NYC Admin. Code § 19-504.2 (also known as Local Law 115 (1993)). In more recent years, commuter vans
have become a more important part of the City’s public transit network, particularly as the Metropolitan
Transportation Authority has been forced to cut roues due to lack of funding. See Gary Buiso, “City Seeks ‘Dollar
Vans’ to Operate on Dead MTA Routes,” New York Post (Jul. 28 2010), available at
http://www.nypost.com/p/news/local/brooklyn/city_seeks_dollar_vans_to_operate_FabeCpZ3VYL9dGbFLK4PYK
(discussing TLC’s approval of an initiative that would allow vans to operate along bus routes eliminated by the
MTA).
20
issues related to transportation; and, more importantly, (b) that the fact that no similar delegation
of authority has been made from the State Legislature o the City of New York or the TLC
regarding taxi medallion issuances signals that the State Legislature has long believed that it
possesses the independent right to regulate the field.
Indeed, while it is true that the TLC enjoys a broad grant of authority under New York
City Charter § 2303 to “promulgate and implement a pervasive regulatory program for the
taxicab industry, including standards and conditions of service, safety, design, comfort and
convenience, requirements for the issuance, renewal, suspension and revocation of licenses, and
requirements for the maintenance of financial security, insurance and minimum coverage,” TLC
does not and has never enjoyed the authority to issue taxi medallions or permits at will, contrary
to Justice Engoron’s claim. New York City Comm. for Taxi Safety v. New York City Taxi &
Limousine Comm’n, 681 N.Y.S.2d 509, 510 (1st Dep’t 1998); contra Taxicab Serv. Assn., 2012
NY Slip Op 32221U at 23 (“New York City has managed to establish and maintain its exalted
place in world commerce and tourism without State interference in the quantity…of its
taxicabs”). Rather, the State Legislature retains express authority to grant authorization for
additional permits and medallions. See City’s Br. at 39 (citing N.Y. Gen. Mun. Law § 181(1);
1938 City Charter, § 436; L 1910, ch 262, § 51; L 1897, ch 378, § 49; People v. Kerr, 27 N.Y.
188, 213-14 (1863)).22
While the State Legislature’s continued exercise of authority over taxi medallion issues in
New York City does not, standing alone, decide the merits of this case, that authority, as well as
the legislative findings included in the HAIL law, are entitled to due deference by this court. See
Section V, infra, p. 25-26.
22 The last authorization for the issuance of new medallions prior to the legislation at issue in the instant matter was
in 2003, when the State Legislature authorized the sal of up to 900 yellow cab medallions. See Taxi and Limousine
Commission, Annual Report to the New York City Council 4 (Jan. 10 2005).
21
B. The Legislature Does Not Forfeit Its Right to Regulate in Areas of Substantial State
Interest Through Its Past or Present Use of Home Rul Messages
Justice Engoron further asserts that, “the subject l gislation appears to be the first
instance in which the State Legislature passed a law without a home rule message after having
passed laws on the very same subject with a home rule messages.” Taxicab Serv. Assn., 2012 NY
Slip Op 32221U at 20. However, even if the Legislature passes a law pursuant to a home rule
message, that does not bar it from passing a similar law without a home rule message, provided
that the underlying law is of substantial state intrest.
There is nothing in the history of the home rule clause to suggest that the State lacks the
authority to act unilaterally in an area where it had previously acted pursuant to a home rule
message. To the contrary, the 1938 Poletti Report noted that “from the time of the adoption of
the home rule amendment, the Governors of the State h v followed the practice, a kind of
‘mayoral courtesy,’ of sending to the Legislature with emergency message only laws
recommended by the mayor of a city for emergency action, and no others.” New York State
Constitutional Convention Committee, at 6 (emphasis dded).
In fact, this Court has specifically cautioned against transforming the historic use of home
rule messages into a constitutional command. “Although the Legislature may have asked for
home rule messages in the past, that is not determinative of . . . whether such messages were
constitutionally required.” City of New York v. State of New York, 94 N.Y.2d 577, 591 (2000)
(citing Whalen v. Wagner, 4 N.Y.2d 575, 581 (1958)); see also Morin v. Foster, 45 N.Y.2d 287,
293 (1978) (“Elected officials…may not so exercise their powers as to limit the same
discretionary right of their successors to exercise that power and must transmit that power to
their successors unimpaired.”).
22
III. NEW YORK CITY EXERCISES CONSIDERABLE CONTROL OVER
THE IMPLEMENTATION OF THE HAIL ACT
The Plaintiffs-Respondents’ contention that the legislative process has left New York
City residents without a voice fails to acknowledge th important roles played by both the Mayor
and State Legislators from New York City in securing the passage of the HAIL Act.23 In
addition, the fact that the HAIL Act is enabling legislation reaffirms the argument that the act is
not an unlawful intrusion of New York City’s autonomy.
Because the HAIL Act is enabling legislation which does not require that New York City
take any action whatsoever, the City retains significant power over how/whether to implement
the Act. The legislation authorizes the TLC, under th direction of the Mayor, to create a new
class of taxis within certain parameters. In other wo ds, what the City decides to do with its
authorization from the State is entirely within the City’s discretion, and the Mayor, as the City’s
top elected official, is directly answerable to thevoting public of New York City.
This Court addressed a nearly identical scenario in New York Steam Corp. v. New York,
268 N.Y. 137 (1935). That case concerned the Buckley Act, a law passed by the State
Legislature that enabled, but did not require New York City to impose additional taxation for a
six-month period to offset the cost of unemployment r lief. The City chose to impose such a tax
and a home rule challenge was filed by the New York Steam Corporation, alleging that the
underlying Act violated home rule.
The Court of Appeals found that unemployment had “undermined standards of living to a
degree which threatens the economic stability of State and nation and affects the welfare of all
the American people,” and therefore that unemployment was clearly a substantial state interest.
23 As noted, supra, p. 3, n. 2-3, the vast majority of New York City legislators voted for the HAIL Act.
23
Id. at 143. More importantly for the case at bar, the Court held that the Buckley Act, as an
enabling statute, did not touch on the sovereign power of the City.
The city of New York is not thereby commanded to relieve unemployment or to
raise taxes to that end. What shall be done in that regard is left to the
determination of the local authority. There has been no encroachment upon the
conception of the autonomy of the city as a State wi hin a State.
Id. at 143-144 (emphasis added); see also Sonmax, Inc. v. New York, 43 N.Y.2d 253, 258 (1977)
(upholding Local Law regulating tax foreclosure proceedings because, “By express provision the
State procedure is optional, rather than mandatory, i.e., local tax districts may elect to take
advantage of its provisions but are not required to o so.” (emphasis added)).
While Justice Engoron acknowledged that the HAIL Act was an enabling statute, he
nevertheless declared that the “cardinal sin” of the State’s action in passing the HAIL Act was
the “reallocati[on] [of] local power.” Taxicab Serv. Assn., 2012 NY Slip Op 32221U at 24.
However, that finding ignores the constitutional history of home rule, which does not
mention separation of local powers as a motivating principle for the amendment, but instead
focuses exclusively on the division of state and municipal authority. As the President of the 1894
Constitutional Convention, Joseph Choate, stated, the two evils to be avoided in crafting the
home rule power were (1) “the abandonment of the power of the state over the city,” and the (2)
“constant, causeless, unchecked, undeliberate, unnotified interference with its domestic affairs.”
Lincoln, supra at 637-638; see also New York State Constitutional Convention Committee, at 36
(“The raison d’etre of home rule became more the adjustment of the complicated state-city
relation.”).
IV. THE HAIL ACT WILL FUNDAMENTALLY TRANSFORM TAXI
SERVICE IN NORTHERN MANHATTAN, THE BRONX, QUEENS,
BROOKLYN, AND STATEN ISLAND, AND WILL VASTLY IMPROV E
ACCESSIBILITY IN THE NEW YORK CITY METROPOLITAN ARE A
While the HAIL Act was first discussed by Mayor Michael Bloomberg in his January
2011 State of the City address, the problem that the Mayor sought to solve—the lack of reliable,
24
legal, regulated taxi service in Northern Manhattan and The Bronx, Queens, Brooklyn, and
Staten Island—has been a persistent problem in New York City for decades.
In fact, New York City has long had two separate and u equal taxi systems depending on
where you live. In the Manhattan Core and at the airports, passengers can either call ahead for a
livery car or street hail a yellow taxi. In the rest of the city, passengers effectively have the
choice of calling ahead for a livery car or illegally hailing a livery car, since yellow cabs rarely
serve areas outside the Manhattan Core.
As a result, illegally hailing livery cabs is a daily part of life for the nearly 550,000
residents of Northern Manhattan, who report hailing veries an average of 5.2 times per month,
according to TLC surveys.24 Twenty-seven community-based livery base stations in Northern
Manhattan serve this market. Collectively, these stations dispatch a total of 3,707 cars and
employ over 5,000 drivers, the majority of whom areimmigrants and/or people of color.25
Livery cabs, while providing a valuable service to meet the demand of the over 7 million
New Yorkers who live outside the Manhattan Core, do not have the benefits yellow taxi
passengers currently enjoy. These include metered fa s, credit/debit card payment, GPS
mapping, and vehicles that have roof lights and distinctive markings that make them easy to
distinguish from unlicensed and sometimes unsafe vehicles.
This legislation would provide all of those benefits in underserved communities, while
also dramatically improving accessibility for people with disabilities. While approximately
60,000 New Yorkers are wheelchair users, a mere 233 yellow cabs are accessible. Noel v. New
York City Taxi & Limousine Comm’n, 687 F.3d 63, 66 n. 5 (2d Cir. 2012).
24 TLC Passenger Survey conducted Nov. 2010 through Feb. 2012. 120 respondents identified themselves as living
in Northern Manhattan.
25 TLC Licensing data.
25
The HAIL Act will increase yellow cab accessibility nearly ten-fold, with all 2,000 new
taxi medallions being issued for wheelchair-accessible cabs. In addition, 20 percent of the 18,000
new borough taxis will be accessible.
In addition to improving transit within the five boroughs, the HAIL Act will be felt far
beyond the borders of New York City. Both yellow taxis and for-hire vehicles transport
passengers to destinations throughout the metropolitan area, including Nassau, Suffolk, and
Westchester counties, as well as New Jersey and Connecticut.26
Lastly, the HAIL Act also promises a boost to the City’s fiscal health, providing an
additional $1 billion of revenue. While the City “has some limited ability” to absorb the loss of
funds from the sale of yellow cab medallions, such a loss would only widen the already $2.4
billion projected deficit in Fiscal Year 2015.27
V. COURTS HAVE HISTORICALLY SHOWN DUE DEFERENCE
TOWARD THE LEGISLATURE.
The Court of Appeals has historically shown considerable deference to the political
branches on questions related to the extent of home rule rights.
[W]hile fully mindful of the importance of home rule, we are sensitive as well to
another fundamental precept of government: that, whether or not we endorse their
wisdom, acts of the Legislature are presumptively valid and cannot be overturned
unless proved unconstitutional beyond a reasonable doubt.
City of New York v. State of New York, 76 N.Y.2d 479, 487 (1990); see also id. at 485
26 While Justice Engoron is correct that not every cross-border transaction creates a substantial State in er st,
Taxicab Serv. Assn, 2012 NY Slip Op 32221U at 23, this Court has made clear that the “substantial state interest”
analysis necessarily takes into account the effect of a particular statute on individuals outside the municipality.
Board of Sup’rs v. Water Power & Control Com., 227 A.D. 345, 348-349 (3rd Dep’t 1929), aff’d 255 N.Y. 531
(1930) (holding that the water supply of the City of Rochester was a matter of state concern because “The statute
affects the health and safety not only of the residents of Rochester, but of persons temporarily there”); s e also
Robertson, 268 N.Y. at 61 (holding that an act concerning the sewage of the city of Buffalo was a matter of public
interest affecting the whole State).
27 http://www.nyc.gov/html/omb/downloads/pdf/sum1_13.pdf, p.42; Dana Rubenstein, “Delay of Mayor’s Borough
Taxi Plan Could Increase Next Year’s Deficit to $4 Billion,” Capital New York (6 Jun. 2012),
http://www.capitalnewyork.com/article/politics/2012/06/6007190/delay-mayors-borough-taxi-plan-could-increase-
next-years-deficit-4-.
26
(“[E]nactments of the Legislature, a co-equal branch of government, are presumed to be
constitutional; those who challenge statutes bear a heavy burden of proving unconstitutionality
beyond a reasonable doubt.” (citing Elmwood-Utica Houses v Buffalo Sewer Auth., 65 N.Y.2d
489, 495 (1985))).28
In addition, in our constitutional order, it is settl d law that questions of policy are to be
decided by the political branches alone, not by courts sitting as super-legislatures. While Justice
Engoron may well be correct that it would have been asier 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,” that is not his decision to make. Taxicab Serv.
Assn, 2012 NY Slip Op 32221U at 25.
Rather, as this Court declared in Taylor v. Sise, “Assuming that there were other effective
methods by which to accomplish the same end, this court should not substitute its judgment for
that of the Legislature in determining the particular method to meet a given need.” 33 N.Y.2d
357, 365 (1974); see also City’s Br. At 44 (scrutiny of the means the Legislature chose to
achieve its legitimate objectives contravenes generally-accepted rules of statutory construction).
The State Legislature has asserted that taxi service in New York City and the surrounding
metropolitan area is a matter of “substantial state concern” and has chosen to address inequities
in the existing system through the HAIL Act. While this statement alone does not determine the
applicability of home rule, it warrants traditional deference in the consideration of this court.
28 While deference is due on issues related to the constitutionality of duly-passed legislation, it is particularly
reasonable to exercise discretion in home rule cases, since when a bill is introduced in the Assembly or Senate, it is
automatically reviewed by home rule Counsel in each house to determine whether a home rule message is required.
See http://www.nysl.nysed.gov/libdev/libs/pldtools/guide/1homerul.htm.
27
CONCLUSION
For the reasons cited above, and those discussed in the briefs of Defendants-Appellants,
amicus urges the court to reverse the ruling of the Supreme Court and affirm the constitutionality
of the HAIL Act.
ANDREW L. KALLOCH
Office of the Manhattan Borough President
1 Centre Street, 19th Floor
New York, NY 10007
(212) 669-3872
Counsel for Amicus Curiae
Manhattan Borough President