Greater New York Taxi Association, et al., Respondents,v.The State of New York, et al., Appellants, Livery Base Owners Inc., et al., Intervenors-Appellants.

Brief

N.Y.April 24, 2013

New York County Supreme Court Index Nos. 102472/2012 (MTBOT v. Bloomberg) 102553/2012 (TSA v. State) 102783/2012 (GNYTA v. State) To be argued by: SCOTT SHORR (20 Minutes) NEW YORK STATE COURT OF APPEALS 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- ------------------------------------------------------------------------------- (Caption Continued Below) MUNICIPAL APPELLANTS’ REPLY BRIEF LEONARD J. KOERNER, FRANCIS F. CAPUTO, SCOTT SHORR, of Counsel. March 18, 2013 MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, Attorney for Municipal Respondents-Appellants 100 Church Street, New York, New York 10007. (212) 788-1089 or -1055 sshorr@law.nyc.gov REPRODUCED ON RECYCLED PAPER (Caption Continued from Preceding Page) ------------------------------------------------------------------------------ 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. ------------------------------------------------------------------------------ TAXICAB SERVICE ASSOCIATION; LOMTO FEDERAL CREDIT UNION; MELROSE CREDIT UNION; MONTAUK CREDIT UNION; and PROGRESSIVE CREDIT UNION, Plaintiffs-Appellants, -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, ------------------------------------------------------------------------------ (Caption Continued Below) (Caption Continued from Preceding Page) ------------------------------------------------------------------------------ -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. TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................. ii PRELIMINARY STATEMENT ............................................................................1 POINT I: PLAINTIFFS HAVE FAILED TO SHOW THAT THE ACT REQUIRED A HOME RULE MESSAGE ....................................................................................................1 (A) Contrary to Plaintiffs’ Assertions, a History of Local Regulation Does not Displace the State’s Substantial Interest in New York City’s For-Hire Transportation System.............................2 (B) Plaintiffs have Failed to Overcome the City’s Showing that the Act Bears a Direct and Reasonable Relationship to a Substantial State Interest ...........................................................................8 (1) Plaintiffs have failed to show that this Court’s “reasonable relationship” test requires either “proportionality” between a State law’s local intrusions and its advancement of a substantial State interest, or heightened scrutiny of the particular means the Legislature selects to achieve its legislative objectives ......................9 (2) Plaintiffs have failed to show that the Act’s delegation of administrative authority to the mayor prevents the Act from bearing a direct and reasonable relationship to a substantial State interest ....................................................................12 (3) Plaintiffs have failed to show that the Act’s fiscal provisions prevent the Act from bearing a direct and reasonable relationship to a substantial State interest ...................17 POINT II: PLAINTIFFS HAVE ALSO FAILED TO DEMONSTRATE THAT THE ACT REQUIRED DOUBLE ENACTMENT ...............................................................19 POINT III: PLAINTIFFS HAVE FAILED TO DEMONSTRATE THAT THE ACT GRANTS UNCONSTITUTIONAL EXCLUSIVE PRIVILEGES .........................................................................................................19 CONCLUSION.......................................................................................................22 TABLE OF AUTHORITIES CASES 19th Street Assocs. v. State, 79 N.Y.2d 434 (1992).................................................21 19th Street Assocs. v. State, 172 A.D.2d 380 (1st Dept. 1991), aff'd on other grounds, 79 N.Y.2d 434 (1992) .........................................21 Adler v. Deegan, 251 N.Y. 467 (1929) ........................................................3, 6, 7, 10 Admiral Realty Co. v. New York, 206 N.Y. 110 (1912) ..................................3, 4, 14 Baldwin v. City of Buffalo, 6 N.Y.2d 168 (1959) ......................................................8 Board of Educ. v. City of New York, 41 N.Y.2d 535 (1977) ...................................12 Bourquin v. Cuomo, 85 N.Y.2d 781 (1995).............................................................13 Bugeja v. City of New York, 24 A.D.2d 151 (2d Dept. 1965), aff’d without opin., 17 N.Y.2d 606 (1966) ...............................................14 City of New York v. Patrolmen’s Benevolent Ass’n, 89 N.Y.2d 380 (1996) .....................................................................................7, 10, 11 City of New York v. State, 76 N.Y.2d 479 (1990)..................................................1, 9 City of New York v. State, 94 N.Y.2d 577 (2000)............................................6, 7, 16 Di Prima v. Wagner, 14 A.D.2d 36 (1st Dept.), aff’d without opin., 10 N.Y.2d 728 (1961)...................................................................14 Fox v. Mohawk & H. R. Humane Soc., 165 N.Y. 517 (1901) .................................20 Hotel Dorset Co. v. Trust for Cultural Resources, 46 N.Y.2d 358 (1978) ...........................................................................................7, 11 Hotel Dorset Co. v. Trust for Cultural Resources, 63 A.D.2d 157 (1st Dept.), rev’d, 46 N.Y.2d 358 (1978).........................................11 Kelley v. McGee, 57 N.Y.2d 522 (1982) .................................................................10 La Guardia v. Smith, 288 N.Y. 1 (1942) .................................................................13 Lanza v. Wagner, 11 N.Y.2d 317 (1962), cert. denied, 371 U.S. 901 (1962)....................................................................................................14 Matter of Mayor of City of N.Y. [Elm St.], 246 N.Y. 72 (1927) .....................................................................................................................6 Matter of New York Elevated Rail Co., 70 N.Y. 327 (1877)...................................20 McAneny v. Board of Estimate, 232 N.Y. 377 (1922)...........................................3, 4 New York State Pub. Employees Fed’n v. Albany, 72 N.Y.2d 96 (1988) ...................................................................................................5 New York v. Lawrence, 250 N.Y. 429 (1929)..............................................10, 11, 14 Noel v. New York City Taxi & Limousine Commission, 687 F.3d 63 (2d Cir. 2012)............................................................................................3 Osborn v. Cohen, 272 N.Y. 55 (1936).................................................................8, 11 Patrolmen’s Benevolent Ass’n v. City of New York, 97 N.Y.2d 378 (2001) ...................................................................................1, 7, 8, 11 People v. Kerr, 27 N.Y. 188 (1863)...........................................................................5 Racine v. Morris, 201 N.Y. 240 (1911) ...................................................................13 Rudack v. Valentine, 163 Misc. 326 (Sup. Ct., Special Term, N.Y. Cty.), aff’d without opin., 274 N. Y. 615 (1937) .....................................................................................................................2 Salzman v. Impellitteri, 305 N.Y. 414 (1953)............................................................3 Salzman v. Impellitteri, 203 Misc. 486 (Sup. Ct., Special Term, N.Y. Cty.), aff’d without opin., 281 A.D. 1023 (1st Dept.), aff’d as modified, 305 N.Y. 414 (1953).....................................................4 Under 21, Catholic Home Bureau for Dependent Children v. New York, 65 N.Y.2d 344 (1985).....................................................................13 Vega v Restani Constr. Corp., 18 N.Y.3d 499 (2012)...............................................6 Wambat Realty Corp. v. State, 41 N.Y.2d 490 (1977) ....................................3, 7, 19 iii iv CONSTITUTIONAL PROVISIONS N.Y. Const. Article IX § 2(c)(1) ..............................................................................14 N.Y. Const. Article XVI § 1 ....................................................................................15 STATUTES AND SESSION LAWS N.Y. Transp. Law § 10...............................................................................................5 L 1965, ch 324, § 1 ....................................................................................................5 L 1984, ch 498 ...........................................................................................................5 L 2011, ch 602, as amended by L 2012, ch 9 § 1 ........................................................................................................................4 § 8............................................................................................................... passim § 9 ................................................................................................................17, 18 § 23 ..............................................................................................................17, 18 NEW YORK CITY CHARTER New York City Charter § 109..................................................................................18 New York City Charter § 227..................................................................................18 New York City Charter § 2303(b)(4).......................................................................12 OTHER AUTHORITIES Rep. of Joint Leg. Comm. on Taxicab Operation and Fares, Legis. Doc. No. 83 (1936) .....................................................................................5 PRELIMINARY STATEMENT The City submits this brief in reply to the Respondents’ Briefs filed by the plaintiffs-respondents in Greater New York Taxi Association v. State of New York (the “GNYTA plaintiffs”); the plaintiffs-respondents and intervenor-plaintiffs- respondents in Metropolitan Taxicab Board of Trade v. Bloomberg (respectively, the “MTBOT plaintiffs” and “MTBOT intervenors”); and the plaintiffs- respondents in Taxicab Service Association v. State of New York (the “TSA plaintiffs”) (collectively, the “plaintiffs”). Nothing in the Respondents’ Briefs rebuts the City’s showing that Supreme Court erroneously declared the Act unconstitutional. Tellingly, plaintiffs fail to mention, let alone claim to have satisfied, their “heavy burden” to overcome the presumed constitutionality of the Act by proving its unconstitutionality “beyond a reasonable doubt.” City of New York v. State, 76 N.Y.2d 479, 485 (1990). POINT I PLAINTIFFS HAVE FAILED TO SHOW THAT THE ACT REQUIRED A HOME RULE MESSAGE. In its main brief, the City demonstrated that under Patrolmen’s Benevolent Ass’n v. City of New York, 97 N.Y.2d 378, 386, 388 (2001) (“PBA II”), the Act did not require a home rule message, because (1) the Legislature enacted the Act in furtherance of the State’s substantial concern with New York City’s for-hire transportation system (City Br. at 27-49); and (2) the Act bears a direct and reasonable relationship to that substantial State interest (id. at 49-62). Plaintiffs fail to overcome either point. (A) Contrary to Plaintiffs’ Assertions, a History of Local Regulation Does not Displace the State’s Substantial Interest in New York City’s For-Hire Transportation System. While the GNYTA and TSA plaintiffs concede the State’s substantial concern with New York City mass and rapid transit (GNYTA Br. at 5 n.4, 40-41; TSA Br. at 36), all plaintiffs reject the State’s substantial interest in New York City’s for-hire transportation system (GNYTA Br. at 33-43; MTBOT Br. at 35, 50- 60; MTBOT intervenors’ Brief [“PI Br.”] at 14-15; TSA Br. at 32-59). The GNYTA and TSA plaintiffs wrongly accuse the defendants of equating private for-hire transportation and mass transportation (GNYTA Br. at 5 n.4, 40-41 & n.20; TSA Br. at 34-40). It is the MTBOT plaintiffs who describe “the yellow cab industry . . . [a]s a critical component of mass transportation in New York City” (MTBOT Br. at 15; T1459). The City contended (City Br. at 33 & n.10, 48) that New York City’s taxicab industry, albeit private, “forms a vital part of the city’s transportation system.” Rudack v. Valentine, 163 Misc. 326, 329 (Sup. Ct., Special Term, N.Y. Cty.), aff’d without opin., 274 N. Y. 615 (1937). Contrary to 2 the assertions of the GNYTA and TSA plaintiffs (GNYTA Br. at 5 n.4; TSA Br. at 39-40), the City’s position here is consistent with its earlier position, in Noel v. New York City Taxi & Limousine Commission, 687 F.3d 63, 72 (2d Cir. 2012), that “by licensing and regulating a private taxi industry that fails to afford meaningful access to passengers with disabilities,” the New York City Taxi and Limousine Commission (the “TLC”) does not violate the Americans with Disabilities Act. Attempting to divorce the State’s substantial interest in New York City mass and rapid transit from the for-hire component of New York City’s transportation system, the GNYTA and TSA plaintiffs highlight the private nature of the for-hire vehicle industry (GNYTA Br. at 5 n.4, 40-41; TSA Br. at 33, 41-44 & n.14, 47, 61, 92). Private ownership and operation of the for-hire vehicles responsible for transporting 1.5 million travelers every day, however (see City Br. at 33 n.10), does nothing to undermine the State’s substantial interest in New York City’s for- hire transportation system. See, e.g., Wambat Realty Corp. v. State, 41 N.Y.2d 490 (1977) (upholding special State law regulating public and private lands within the Adirondack Park region); Adler v. Deegan, 251 N.Y. 467 (1929) (upholding special State law regulating New York City’s private housing industry). Next, the TSA plaintiffs (on pages 36-37 of their brief) strain to distinguish Salzman v. Impellitteri, 305 N.Y. 414 (1953), McAneny v. Board of Estimate, 232 N.Y. 377 (1922), and Admiral Realty Co. v. New York, 206 N.Y. 110 (1912), in 3 which this Court recognized a substantial State interest in New York City rapid transit. According to the TSA plaintiffs, all three cases turn upon a quirk in Article IX of the Constitution that supposedly prevents special State rapid transit laws – but not the Act – from relating to the “property, affairs or government” of a locality (TSA App. Br. at 37). Rather, this Court reasoned that because the Legislature adopts laws regarding New York City rapid transit for the benefit of “the whole [S]tate” (or the “public at large”), in addition to New York City, those laws do not relate to New York City’s “property, affairs or government” for home rule purposes. Salzman v. Impellitteri, 203 Misc. 486, 505-06 (Sup. Ct., Special Term, N.Y. Cty.), aff’d without opin., 281 A.D. 1023 (1st Dept.), aff’d as modified, 305 N.Y. 414 (1953); McAneny, 232 N.Y. at 393; Admiral Realty, 206 N.Y. at 140. Similarly, because the Legislature designed the Act to advance the State’s substantial interest in New York City’s for-hire transportation system, the Act does not, for home rule purposes, relate to the property, affairs or government of New York City (see City Br. at 27-29). Several plaintiffs further disparage, as a “sham” (GNYTA Br. at 18-19; PI Br. at 15; TSA Br. at 7, 9-10, 55-56, 58-60, 94-96 & nn.49-50), the Act’s articulation of the State’s substantial concern with the provision of adequate and reliable for-hire transportation service to disabled and non-disabled travelers throughout the five boroughs. See Chapter 9 § 1. These plaintiffs ignore the 4 evidence belying their “sham” theory – this Court’s and the Legislature’s previous recognition of the State’s substantial interest in New York City’s transportation system, including its for-hire transportation system: - Acting on behalf of “the people of the whole State,” the State may enact legislation designed to improve the provision of transportation for hire in New York City. People v. Kerr, 27 N.Y. 188, 213-14 (1863); see also New York State Pub. Employees Fed’n v. Albany, 72 N.Y.2d 96, 101 (1988) (citing Kerr with approval). - “Safe, adequate, and efficient taxicab operation at just and reasonable rates is an indispensible transportation service auxiliary to rapid transit and other transportation systems in large cities in this State.” Rep. of Joint Leg. Comm. on Taxicab Operation and Fares, Legis. Doc. No. 83, at 3 (1936). - “It is hereby declared to be 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 . . . .” N.Y. Transp. Law § 10. - “Efficient and adequate transportation of commuters within the New York metropolitan area is of vital importance to the commerce, defense and general welfare of the people of the New York metropolitan area, the state, and the nation.” L 1965, ch 324, § 1. - As a matter of State policy, the “transportation disabled” – especially in New York City – must have adequate access to transportation facilities and services in order “to participate fully in . . . economic, educational, recreational and cultural activities.” L 1984, ch 498, § 1. Clinging to their “sham” theory, the TSA plaintiffs assert that this Court lacks power to review Supreme Court’s supposed “factual finding” of Legislative legerdemain (TSA Br. at 3, 25, 29-30, 32, 35-36, 57-58). To the extent Supreme 5 Court purported to engage in fact-finding on cross-motions for summary judgment, Supreme Court erred. See, e.g., Vega v Restani Constr. Corp., 18 N.Y.3d 499, 505 (2012) (“[i]t is not the function of a court deciding a summary judgment motion to make . . . findings of fact”). In any event, neither Supreme Court nor this Court may inquire into the Legislature’s motives for even “hasty” exercises of its power. See City of New York v. State, 94 N.Y.2d 577, 591 (2000); cf. Matter of Mayor of City of N.Y. [Elm St.], 246 N.Y. 72, 77-78 (1927) (based “upon the face of the act, unaided by extrinsic evidence” except judicially noticeable materials, court may determine that State law seemingly applicable to large class is nevertheless “special and local in terms and in effect”). Next, plaintiffs argue that even if the State has an interest in New York City’s for-hire transportation system, the City’s interest must be stronger, given the City’s historical exercise of regulatory authority over New York City for-hire vehicles (GNYTA Br. 5, 9, 36-37, 39-42 & n.19; MTBOT Br. at 50, 57; PI Br. at 3, 5, 10-11, 13-14; TSA Br. at 1, 5-6, 10, 14-16, 32-33, 45-50, 74-75, 81 n.41, 89- 90). Several flaws undermine plaintiffs’ argument. First, as Supreme Court conceded (G377; M1226; T2153), the State may have a substantial interest in a subject that implicates local concerns, regardless of whether State or local interests “predominate.” Adler, 251 N.Y. at 490-91 (Cardozo, Ch. J., concurring). Moreover, as the City noted in its main brief (at 6 pages 38-39), this Court’s most recent home rule cases utilize legislative declarations and legislative history – not local regulatory history – to determine the existence of a substantial State interest. See PBA II, 97 N.Y.2d at 382-83, 387-88; City of New York, 94 N.Y.2d at 577, 590-91; City of New York v. Patrolmen’s Benevolent Ass’n, 89 N.Y.2d 380, 391-93 (1996) (“PBA I”); see also Hotel Dorset Co. v. Trust for Cultural Resources, 46 N.Y.2d 358, 373 (1978) (“legislative findings alone” provide “ample showing” of State concern). In addition, plaintiffs fail to cite any cases undermining the City’s contention that the State, despite having acceded to the City’s exercise of delegated authority to regulate for-hire vehicles, retains its substantial interest in New York City’s for- hire transportation system (City Br. at 30-31, 39). See, e.g., Adler, 251 N.Y. at 483 (with respect to “matters of State concern,” the Legislature may delegate regulatory power to cities or “act in its own way”) (Pound, J., concurring); id. at 488 (power delegated to City “to regulate the form of tenements . . . was subject in its creation to the over-riding action of the State”) (Cardozo, Ch. J., concurring). Contrary to plaintiffs’ assertions (GNYTA Br. at 5, 22, 28, 33-35; MTBOT Br. at 52-55; TSA Br. at 47, 49), this Court has never held that a history of local regulation on a particular subject displaces a substantial State interest in the same subject. Cf. Wambat, 41 N.Y.2d at 495 (upholding State law where 80-year history of constitutional and legislative efforts to preserve Adirondack area evidences 7 substantial State interest); Baldwin v. City of Buffalo, 6 N.Y.2d 168 (1959) (upholding local laws altering ward boundaries and creating councilmanic districts); Osborn v. Cohen, 272 N.Y. 55 (1936) (citing history of local control over fire departments to invalidate special State law enacted without articulation of substantial State interest). A rule requiring the State to “use or lose” delegable powers would encourage the State to over-regulate and under-delegate, thus diminishing local autonomy. Accordingly, this Court should reject plaintiffs’ assertion that the Act is unsupported by a substantial State interest in New York City’s for-hire transportation system. (B) Plaintiffs have Failed to Overcome the City’s Showing that the Act Bears a Direct and Reasonable Relationship to a Substantial State Interest. As demonstrated in the City’s main brief (at pages 49-62), the Act satisfies this Court’s “reasonable relationship” test because it bears “a direct and reasonable relationship” to the State’s substantial interest in New York City’s for-hire transportation system. See PBA II, 97 N.Y.2d at 386, 388. Unable to overcome the City’s showing, plaintiffs question the wisdom of the Act (GNYTA Br. at 2-3, 7, 14-15 & n.8, 16-17 & n.10, 19-20 n.13, 25 n.15, 31, 37-38 & n.18; MTBOT Br. 8 at 17, 20; PI Br. at 1, 4-5, 16-18; TSA Br. at 3, 21, 51-55 & nn.22-24); invent artificial “reasonable relationship” tests; and attack particular provisions of the Act. All of their arguments lack merit. See City of New York v. State, 76 N.Y.2d 479, 487 (1990) (“whether or not we endorse their wisdom,” State laws “cannot be overturned unless proved unconstitutional beyond a reasonable doubt”). (1) Plaintiffs have failed to show that this Court’s “reasonable relationship” test requires either “proportionality” between a State law’s local intrusions and its advancement of a substantial State interest, or heightened scrutiny of the particular means the Legislature selects to achieve its legislative objectives. Misstating this Court’s “reasonable relationship” test, plaintiffs argue that: (1) the Act intrudes upon municipal powers without a “compensating offset in the advancement of a concern or interest of the State” (MTBOT Br. at 38, 46-47; PI Br. at 15, 18; TSA Br. at 7-8, 10-11, 63-68 & nn.30-33, 70, 88-92); and (2) select provisions of the Act – in particular, the Act’s delegation of administrative authority to the mayor – lack a direct and reasonable relationship to substantial State interests (GNYTA Br. at 5-6, 25, 30, 32, 43 n.21; MTBOT Br. at 38-39; PI Br. at 15, 18-20; TSA Br. at 69-71 & n.35, 75, 77-82). Both attempts to transform the “reasonable relationship” test fail. 9 As this Court explained in PBA I, the “reasonable relationship” test ensures that special State laws compensate for intrusions into local affairs by advancing State interests. 89 N.Y.2d at 390-91. In applying the “reasonable relationship” test, this Court has never balanced the degree to which a special law intrudes on local powers against the degree to which the special law advances State interests (see City Br. at 54-56). As Justice Cardozo acknowledged in a similar context, “[c]onsiderations of ‘more or less’ will lead us . . . into a morass of indecision.” Adler, 251 N.Y. at 491 (Cardozo, Ch. J., concurring). Defending their insistence upon “proportionality,” the TSA plaintiffs misplace reliance upon Kelley v. McGee, 57 N.Y.2d 522 (1982), and New York v. Lawrence, 250 N.Y. 429 (1929) (TSA Br. at 63-64, 66 n.31, 89). In Kelley, this Court applied, to a special State law passed in furtherance of a substantial State interest, the familiar rule that legislative classifications among local governments – classifications which are not at issue here – must be reasonable. 57 N.Y.2d at 538- 40. In Lawrence, this Court explicitly declined to adopt a test for determining the degree to which the Legislature, in furtherance of a substantial State interest, may intrude upon local property, affairs, or government. 250 N.Y. at 444-45. Plaintiffs’ second proposed home rule test – scrutinizing the relationship between every statutory provision and a substantial State interest – also fails. As the City contended in its main brief (at page 43), and as the TSA plaintiffs 10 inadvertently concede (TSA Br. at 31, 32 n.5, 61-62, 89), the “reasonable relationship” test considers whether a State statute – not each discrete section and sentence of the statute – “bears a direct and reasonable relationship” to the substantial State concern animating the legislation. PBA II, 97 N.Y.2d at 386, 388. Attempting to support their atomistic approach to home rule, the MTBOT intervenors and the TSA plaintiffs misplace reliance upon PBA I, 89 N.Y.2d 380; Osborn, 272 N.Y. 55; and Lawrence, 250 N.Y. 429 (PI Br. at 18; TSA Br. at 70- 71). In each case, this Court considered whether the relevant State statute, not each individual component of the statute, related to a matter of State concern. The MTBOT intervenors further misplace reliance (at pages 18-19 of their brief) upon Hotel Dorset Co. v. Trust for Cultural Resources, 63 A.D.2d 157 (1st Dept.), rev’d, 46 N.Y.2d 358 (1978). In Hotel Dorset, the Appellate Division, First Department invalidated a State museum preservation law drafted to take effect upon Board of Estimate ratification, rather than City Council ratification. The First Department condemned that statutory provision on home rule grounds, however, only after characterizing the challenged statute as a special State law, affecting only New York City, that lacked a supporting substantial State interest. 63 A.D.2d at 168-69. Reversing, this Court upheld the challenged law as advancing a substantial State interest, even if the law preserved just one New York City cultural institution. Hotel Dorset, 46 N.Y.2d at 373. 11 This Court should therefore reject plaintiffs’ legally-unsupported attempts to subject the Act and its provisions to a degree of home rule scrutiny this Court has never applied. (2) Plaintiffs have failed to show that the Act’s delegation of administrative authority to the mayor prevents the Act from bearing a direct and reasonable relationship to a substantial State interest. As the City noted in its main brief (at pages 41 and 44), State legislation enacted in furtherance of a substantial State interest, “even though of localized application and having a direct effect on the most basic of local interests[,] does not violate the constitutional home rule provisions.” Board of Educ. v. City of New York, 41 N.Y.2d 535, 542 (1977). Nor does the Constitution bar the Legislature, acting in furtherance of a substantial State interest, from delegating authority to a municipal executive to implement State legislative initiatives. Thus, in advancing the State’s substantial interest here, the Legislature had sufficient discretion – exercised in Chapter 9 section 8 of the Act – to authorize the City, “acting by the mayor alone, [to] administratively authorize the TLC” to issue up to 2,000 new accessible taxicab medallions “by public sale” (see City Br. at 53, 55-58). Plaintiffs assert that because New York City Charter section 2303(b)(4) conditions the City’s issuance of additional medallions upon the enactment of a 12 local law, Chapter 9 section 8 “transfers” City Council’s legislative power to the Mayor, thereby violating the City’s constitutionally-protected separation of executive and legislative powers (GNYTA Br. at 6, 29-30, 32, 43; MTBOT Br. at 1-4, 8, 38-45 & nn.22-23, 47; PI Br. at 6, 18-20; TSA Br. at 2, 6-8, 10, 16, 23, 61, 63 n.29, 65-66, 69-73 & n.35, 75, 80). Their arguments on this point misconstrue the Constitution, the Act, the City Charter, and this Court’s precedents. Contrary to plaintiffs’ assertions (GNYTA Br. at 30, 32; MTBOT Br. at 1-4, 41, 44-45, 47; TSA Br. at 7-8, 61, 69-70, 75-77, 81 n.41), nothing in the Constitution requires the separation of executive and legislative municipal powers. See La Guardia v. Smith, 288 N.Y. 1, 6 (1942) (State Constitution does not prescribe “tripartite, independent branches of government” in New York City); cf. Bourquin v. Cuomo, 85 N.Y.2d 781, 784-85 (1995) (State Constitution separates State executive and legislative powers); Under 21, Catholic Home Bureau for Dependent Children v. New York, 65 N.Y.2d 344 (1985) (City Charter does not allow Mayor to promulgate executive order forbidding discrimination by city contractors on basis not covered by any legislative enactment). Nor does the Charter, by allocating executive and legislative functions to different branches of municipal government, limit the State’s power to authorize the issuance of taxicab medallions. See, e.g., Racine v. Morris, 201 N.Y. 240, 244 (1911) (only Federal and State Constitutions constrain Legislature’s power). Even if the State had an 13 obligation to respect municipal power allocations, however, Chapter 9 section 8 delegates an executive function to the Mayor – “administrative authoriz[ation]” for the issuance of new taxi medallions by public sale – not a legislative one. Plaintiffs further claim that Article IX section 2(c)(1) of the Constitution, which authorizes every local government to adopt local laws relating to the powers and duties of its officers, prevents the Legislature from assigning functions to municipal officers (MTBOT Br. at 43-44, 47; TSA Br. at 63 n.29, 73). But this Court has upheld laws “relat[ing] to matters of State concern and affect[ing] the public at large” that “confer[] new powers upon [C]ity officers.” Lawrence, 250 N.Y. at 444 (citing Admiral Realty Co. v. New York, 206 N.Y. 110 [1912]). See also Lanza v. Wagner, 11 N.Y.2d 317, 327 (1962) (“in exercising his appointive and removal powers” regarding the New York City Board of Education, the mayor acts “by legislative direction as a State officer in support of the State system of education”), cert. denied, 371 U.S. 901 (1962); Bugeja v. City of New York, 24 A.D.2d 151 (2d Dept. 1965) (upholding special State law, advancing substantial State concern, that empowers mayor to issue serial bonds), aff’d without opin., 17 N.Y.2d 606 (1966); Di Prima v. Wagner, 14 A.D.2d 36 (1st Dept.) (upholding general State law effectively transferring Charter revision power from City Council to mayor), aff’d without opin., 10 N.Y.2d 728 (1961). 14 Turning again to history, plaintiffs argue that because City Council home rule messages preceded three prior State statutes authorizing the City to enact local laws providing for the issuance and public sale of new taxi medallions, the Act required a home rule message from City Council (MTBOT Br. at 6, 8, 13-15, 50- 51, 55-57; PI Br. at 11, 14; TSA Br. at 48-49). This argument misconceives State and local legislative powers. As plaintiffs concede, City Council lacks plenary power to enact local laws providing for the issuance and public sale of new taxicab licenses; under Article XVI section 1 of the Constitution, a locality’s public sale of new taxi medallions requires Legislative approval (GNYTA Br. at 13 n.7; MTBOT Br. at 14; T2058). The Legislature may authorize the issuance and public sale of taxicab medallions in three ways: by enacting a general law; by enacting a special law that bears a direct and reasonable relationship to a substantial State interest; or by enacting a special law with a home rule message from the relevant locality or localities. In its 1995, 2003, and 2006 “Home Rule Request[s]” to the Legislature, the City requested special State laws authorizing the City to enact local laws providing for the issuance of new taxi medallions by public sale. The City made those requests because (1) the City needed Legislative authorization to enact such local laws; and (2) the Legislature had not passed any general laws or “substantial State interest” 15 laws providing the necessary authorization. See, e.g., Home Rule Request, dated June 28, 1995, Bill Jacket, L 1995, ch 359, at 4. Chapter 9 section 8 of the Act authorizes the City’s issuance “by public sale” of 2,000 new accessible taxi medallions. The Act provides this authorization as one part of an integrated program directly and reasonably related to the State’s substantial interest in New York City’s for-hire transportation system. Accordingly, a home rule request would have been superfluous. As the City noted in its main brief (at page 49), previous legislative requests for home rule messages do not mean that “such messages were constitutionally required.” City of New York v. State, 94 N.Y.2d 577, 591 (2000). Misstating the record, plaintiffs also highlight a supposed acknowledgment by TLC Commissioner Yassky “that any State law authorizing new medallions would require [City] Council’s approval through a home rule message” (GNYTA Br. at 15 & n.9; MTBOT Br. at 51; TSA Br. at 19, 48). The cited pages M168-71 and T371 of the MTBOT and TSA records contain an e-mail from Commissioner Yassky dated January 18, 2011, and its accompanying two-page memorandum. In both documents, Commissioner Yassky noted that implementing the five-borough street-hail plan proposed by the Mayor and the TLC would “require authorizing City Council legislation.” Commissioner Yassky said nothing, however, about new medallions, a home rule message, or the prospect of State legislation (M168- 16 71; T371). He simply made the point that the Mayor and the TLC could not implement the proposed street-hail program on their own; the program, like many mayoral initiatives, would require a legislative enactment.1 In any event, as the City contended in its main brief (at pages 58-59), Chapter 9 section 8 does not “transfer” any power from City Council to the Mayor, because the power delegated to the Mayor – to provide administrative authorization for the TLC’s issuance of new taxi licenses “by public sale” – is not one City Council ever possessed (see page 15 above). Plaintiffs fail to address this point, much less rebut it. This Court should thus reject plaintiffs’ attempt to undermine the Act by attacking the Act’s delegation of administrative authority to the mayor. (3) Plaintiffs have failed to show that the Act’s fiscal provisions prevent the Act from bearing a direct and reasonable relationship to a substantial State interest. As the City showed in its main brief (at pages 52-54), Chapter 9 section 9 of the Act (regarding the HAIL grant program) and Chapter 9 section 23 (regarding 1 In Supreme Court, the MTBOT and TSA plaintiffs similarly misreported Commissioner Yassky’s statements (M313-14; T25[¶42]; T566; T1308-09; T1598). Thus misinformed, Supreme Court criticized Commissioner Yassky for supposedly contradicting his “original” statement that City Council “would have to issue a ‘home rule message’ approving any new taxicab plan” (G381; M1230; T2157). 17 the disposition of HAIL violation fines) directly and reasonably relate to the State’s substantial interest in New York City’s for-hire transportation system. Subject to valid State-imposed obligations, City Council determines – with limited exceptions inapplicable here – how to appropriate all City revenues (see Charter §§ 109, 227). Despite recognizing City Council’s appropriations authority (TSA Br. at 82, 86), the TSA plaintiffs join the MTBOT plaintiffs in attacking Chapter 9 section 9 as a “mandate” requiring the TLC to spend money without a City Council appropriation (MTBOT Br. at 61-63 & n.29; TSA Br. at 8, 10, 61, 82- 86 & n.42). To the contrary, while section 9 implicitly (and constitutionally) obligates City Council to appropriate a reasonable amount of money for HAIL support programs (see City. Br. at 60), and directs the TLC to use appropriated funds for designated HAIL purposes, nothing in section 9 imposes a “mandate” on the TLC to spend unappropriated funds. Disputing the City’s point that any HAIL fines distributed to City enforcement agencies must flow to the City’s general fund (under Charter section 109), the TSA plaintiffs misconstrue Chapter 9 section 23 as “stating that bounties will be paid to the City’s executive agencies ‘notwithstanding the provisions of any law to the contrary’” (TSA Br. at 4, 23-24, 86-87). The “notwithstanding” proviso applies to the authority of the State police and the Port Authority police department to enforce HAIL rules, not to the disposition of HAIL fines. Chapter 9 § 23. 18 * * * None of plaintiffs’ arguments demonstrate that the Act bears anything less than a direct and reasonable relationship to the State’s substantial interest in New York City’s for-hire transportation system. POINT II PLAINTIFFS HAVE ALSO FAILED TO DEMONSTRATE THAT THE ACT REQUIRED DOUBLE ENACTMENT. As the City contended in its main brief (at pages 63-66), the Constitution did not require double enactment of the Act, because the Act furthers a substantial State interest. With the exception of a footnote urging this Court to revisit its decision in Wambat Realty Corp. v. State, 41 N.Y.2d 490 (1977), plaintiffs do not dispute that if this Court rejects their home rule challenge to the Act, their double- enactment challenge should also fail (see GNYTA Br. at 7, 9, 44-47 & n.22; MTBOT Brief at 7, 9, 63-66; PI Br. at 20 n.10 ). POINT III PLAINTIFFS HAVE FAILED TO DEMONSTRATE THAT THE ACT GRANTS UNCONSTITUTIONAL EXCLUSIVE PRIVILEGES. The City further demonstrated, in its main brief (at pages 66-73), that the Act is consistent with the Constitution’s Exclusive Privileges Clause, because 19 (among other reasons) the Act does not constitute a “private or local bill,” is not directed at a single entity, and does not grant exclusive privileges to for-hire vehicle drivers, owners or base stations. Because the Act authorizes the issuance of only 18,000 HAIL licenses, the MTBOT plaintiffs argue, the Act grants an exclusive privilege to the 18,000 for- hire vehicle drivers and owners who will acquire them (MTBOT Br. at 71). As the City explained in its main brief (at pages 68-69), this is not the kind of “exclusivity” the Exclusive Privileges Clause forbids, because (1) the class of potential HAIL licensees fluctuates over time; and (2) HAIL licensees will have no power to prevent other qualified applicants from obtaining HAIL licenses. Cf. Fox v. Mohawk & H. R. Humane Soc., 165 N.Y. 517, 526-28 (1901) (striking down State law granting, to one animal-cruelty-prevention society per county, both the exclusive privilege to harbor dogs without paying licensing fees, and the power to seize and destroy unlicensed dogs). Misplacing reliance upon Matter of New York Elevated Rail Co., 70 N.Y. 327, 346 (1877), the MTBOT plaintiffs further argue that the Act grants exclusive privileges because only qualified for-hire vehicle drivers and owners – as opposed to “all the citizens of the State” – may acquire HAIL licenses (MTBOT Br. at 70). In the cited portion of New York Elevated Rail, this Court – without discussing the test for determining whether a “private or local” State law violates the Exclusive 20 Privileges Clause – described as “general” a State law offering all State citizens the same opportunity to form a railroad corporation. 70 N.Y. at 344-46. Unable to defend the erroneous exclusive privileges holdings the Appellate Division and Supreme Court reached in 19th Street Associates v. State, 172 A.D.2d 380 (1st Dept. 1991) (see City Br. at 68 n.18, State Br. at 82-83), the GNYTA and MTBOT plaintiffs misplace reliance upon this Court’s decision in 19th Street, 79 N.Y.2d 434 (1992), even though this Court did not reach the exclusive privileges issue. In 19th Street, this Court held that because the challenged State statute impaired the plaintiffs’ contractual rights for the benefit of a handful of tenants in one apartment building, without advancing a legitimate public purpose, the statute – with “all the indicia of special interests legislation” – violated the plaintiffs’ rights under the federal Constitution’s Contracts Clause. 79 N.Y.2d at 442-44. Contrary to the assertions of the GNYTA and MTBOT plaintiffs (GNYTA Br. at 48, MTBOT Br. at 7, 67-68, 69-70 & n.32), whether a State statute constitutes “special interests legislation” under the federal Constitution’s Contracts Clause has no bearing on whether the statute is consistent with the State Constitution’s Exclusive Privileges Clause. In any event, the Act – designed to expand access to street hail transportation for disabled and other travelers throughout the five boroughs – hardly constitutes “special interests legislation.” 21 22 CONCLUSION THE JUDGMENT APPEALED FROM SHOULD BE REVERSED, THE ACT DECLARED CONSTITUTIONAL, AND THE COMPLAINTS DISMISSED, WITH COSTS. Respectfully submitted, MICHAEL A. CARDOZO Corporation Counsel of the City of New York Attorney for Municipal Defendants- Appellants By: _________________________ Scott Shorr LEONARD J. KOERNER, FRANCIS F. CAPUTO, SCOTT SHORR, of Counsel.