To be argued by:
RICHARD DEARING
20 minutes requested
Supreme Court, New York County
State of New York
Court of Appeals
TAXICAB SERVICE ASSOCIATION, et al.,
Plaintiffs-Respondents,
v.
THE STATE OF NEW YORK, et al.,
Defendants-Appellants.
. (Index No. 102553/12) .
METROPOLITAN TAXICAB BOARD OF TRADE, et al.,
Plaintiffs-Appellants,
v.
MICHAEL R. BLOOMBERG, as Mayor of the City of New York, et al.,
Defendants-Appellants.
. (Index No. 102472/12) .
GREATER NEW YORK TAXI ASSOCIATION, et al.,
Plaintiffs-Respondents,
v.
THE STATE OF NEW YORK, et al.,
Defendants-Appellants.
. (Index No. 102783/12) .
CORRECTED REPLY BRIEF FOR STATE APPELLANTS
BARBARA D. UNDERWOOD
Solicitor General
RICHARD DEARING
Deputy Solicitor General
ANDREW W. AMEND
CLAUDE S. PLATTON
Assistant Solicitors General
of Counsel
ERIC T. SCHNEIDERMAN
Attorney General of the
State of New York
Attorney for State Appellants
120 Broadway
New York, New York 10271
(212) 416-8022
(212) 416-8962 (facsimile)
Dated: March 22, 2013
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES.............................................................iii
PRELIMINARY STATEMENT ........................................................ 1
ARGUMENT .................................................................................... 4
POINT I - THE HAIL ACT DOES NOT VIOLATE THE
HOME RULE CLAUSE BECAUSE IT
REASONABLY ADDRESSES A
SUBSTANTIAL STATE CONCERN ........................ 4
A. Ensuring Safe and Reliable Transportation
for Millions of New Yorkers Is a
Substantial State Concern. .................................. 4
1. Plaintiffs wrongly trivialize the interests
in public health, safety, and welfare
served by the Act.............................................. 8
2. Plaintiffs’ factual distinctions between
taxi service and other modes of public
transportation have no constitutional
significance..................................................... 12
3. Plaintiffs’ slant on history does not
negate the existence of a substantial
state concern. ................................................. 17
B. The Act’s Provisions Directly and
Reasonably Relate to the State’s
Substantial Concern for Safe and Reliable
Transportation in New York City. ..................... 27
1. The provision delegating executive
implementation responsibility to the
Mayor is reasonable. ...................................... 29
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TABLE OF CONTENTS
Page
2. The provisions concerning the wheelchair-
accessibility grant program and allocation
of enforcement responsibility are likewise
reasonable.......................................................37
POINT II - PLAINTIFFS’ OTHER CLAIMS LACK
MERIT ......................................................................40
A. The Act Does Not Violate the Double
Enactment Clause. ..............................................40
B. The Act Does Not Violate the Exclusive
Privileges Clause.................................................43
CONCLUSION ................................................................................47
iii
TABLE OF AUTHORITIES
Cases Page
19th Street Associates v. State,
172 A.D.2d 380 (1st Dep’t 1991), aff’d on other grounds,
79 N.Y.2d 434 (1992) .................................................................. 44
Adler v. Deegan,
251 N.Y. 467 (1929) ........................................................ 15, 18, 26
Admiral Realty Co. v. City of N.Y.,
206 N.Y. 110 (1912) ................................................................ 5, 15
Admiral Realty Co. v. City of New York,
76 Misc. 345 (Sup. Ct. Kings County),
aff’d, 151 A.D. 888, aff’d, 206 N.Y. 110 (1912) .......................... 14
Affronti v. Crosson,
95 N.Y.2d 713 (2001) .................................................................. 34
Anderson v. Fidelity & Cas. Co. of N.Y.,
228 N.Y. 475 (1920) .................................................................... 16
Bugeja v. City of N.Y.,
24 A.D.2d 151 (2d Dep’t 1965), aff’d 17 N.Y.2d 606 (1966) ...... 11
City of Lafayette v. La. Power & Light Co.,
435 U.S. 389 (1978)..................................................................... 23
City of N.Y. v. Patrolmen’s Benevolent Ass’n of
the City of N.Y. Inc.,
89 N.Y.2d 380 (1996) .................................................... 5, 8, 19, 27
City of New York v. State,
168 Misc. 2d 750 (Sup. Ct. N.Y. County 1995) .......................... 28
Cmty. Commc’ns Co. v. City of Boulder,
455 U.S. 40 (1982)....................................................................... 23
iv
TABLE OF AUTHORITIES
Cases Page
Consumers Union of U.S., Inc. v. State,
5 N.Y.3d 327 (2005).....................................................................45
F.T.C. v. Phoebe Putney Health Sys., Inc.,
133 S. Ct. 1003 (2013).................................................................24
Fox v. Mohawk & Hudson River Society,
165 N.Y. 517 (1901).....................................................................44
Hotel Dorset Co. v. Trust for Cultural Res. of City of N.Y.,
46 N.Y.2d 358 (1978)........................................................11, 32-33
Matter of Kelley v. McGee,
57 N.Y.2d 522..............................................................................20
Matter of Osborn v. Cohen,
272 N.Y. 55 (1936)........................................................5, 14, 18-19
Matter of Town of Islip v. Cuomo,
64 N.Y.2d 50 (1984).......................................................................9
McAneny v. Bd. of Estimate & Apportionment,
232 N.Y. 377 (1922).................................................................5, 15
Metro. Transp. Auth. v. County of Nassau,
28 N.Y.2d 385 (1971)...................................................................11
Patrolmen’s Benevolent Ass’n of the City of N.Y. Inc. v.
City of N.Y.,
97 N.Y.2d 378 (2001).............................................................19, 27
Robertson v. Zimmermann,
268 N.Y. 52 (1935).........................................................................9
Salzman v. Impellitteri,
203 Misc. 486 (Sup. Ct. N.Y. County),
aff’d as modified, 305 N.Y. 414 (1953) ..................................14-15
v
TABLE OF AUTHORITIES
Cases Page
Uniformed Firefighters Ass’n v. City of N.Y.,
50 N.Y.2d 85 (1980) ....................................................10-11, 19-20
Vega v. Restani Constr. Corp.,
18 N.Y.3d 499 (2012) .................................................................. 13
Wambat Realty Corp. v. State,
41 N.Y.2d 490 (1977) .......................................................... passim
Constitutional Provisions
N.Y. Const.
article IX, § 2......................................................................... 41, 42
article IX, § 3............................................................................... 41
art. IX, § 11 (McKinney 1954) .................................................... 24
art. IX, § 12 (McKinney 1954) .................................................... 15
art. XII, § 3 (McKinney Supp. 1938) .......................................... 15
Laws
State
Ch. 602, 2011 N.Y. Laws, as amended by ch. 9, 2012 N.Y. Laws...passim
General Municipal Law § 181................................................... 22, 24
Municipal Home Rule Law § 10...................................................... 42
Statute of Local Governments § 10 .......................................... 41, 42
Tax Law § 1281................................................................................ 25
vi
TABLE OF AUTHORITIES
Laws Page
New York City
N.Y. City Charter § 2303.................................................................30
N.Y. City Local Law
No. 90 (1989) ...............................................................................12
No. 15 (1996) .........................................................................31, 36
No. 51 (2003) .........................................................................31, 36
No. 18 (2006) .........................................................................31, 36
N.Y. City Admin. Code § 17-503(2)............................................16-17
Rules of City of N.Y. (2012)
tit. 24, § 175.105).........................................................................17
tit. 35 § 52-01...............................................................................16
Miscellaneous Authorities
1983 N.Y. Op. Att’y Gen. (Inf.) 4, 1983 WL 167364..................22-24
Bagli, Charles V., Dispute on Costs Delays Opening of 9/11
Museum, N.Y. Times (Sept. 8, 2012)..........................................34
Barbaro, Michael, & Nicholas Confessore, Bloomberg Presses
Cuomo on Teacher Seniority Rule, N.Y. Times (Jan. 30,
2011) ............................................................................................34
Blain, Glenn, Senate’s De-Livery for Boros, Street Hails for
Non-Medallion Cabs OKd, N.Y. Daily News (June 25,
2011) ............................................................................................34
Brief of Pl.-Resp., Hotel Dorset, 46 N.Y.2d 358 (N.Y. County
Index No. 18933/1976) ................................................................32
Bureau of Economics, FTC, An Economic Analysis of Taxicab
Regulation (1984), available at
http://www.ftc.gov/be/econrpt/233832.pdf..................................21
vii
TABLE OF AUTHORITIES
Miscellaneous Authorities Page
Competition Comm., OECD, Taxi Services: Competition and
Regulation (2007), available at http://www.oecd.org/
regreform/liberalisationandcompetitioninterventioninregu
latedsectors/41472612.pdf .......................................................... 21
Confessore, Nicholas, $8 Traffic Fee for Manhattan Gets
Nowhere, N.Y. Times (Apr. 8, 2008) .......................................... 34
Gershman, Jacob, Cuomo Abstains in City-UFT Fight, Wall
St. Journal (Feb. 15, 2012) ......................................................... 34
In re City of Minneapolis,
105 F.T.C. 304 (1984) ................................................................. 21
In re City of New Orleans,
105 F.T.C. 2 (1984) ..................................................................... 21
Kaplan, Thomas, Bloomberg Urges State Legislators to
Reduce Mandates, N.Y. Times (Feb. 8, 2011)............................ 34
Letter from Sen. Thomas C. Desmond to Daniel Gutman,
Counsel to the Governor, reprinted in Bill Jacket for ch.
209 (1956).............................................................................. 22, 24
Metro. Transp. Auth., New York City Transit—History and
Chronology, http://www.mta.info/nyct/facts/ffhist.htm............. 14
Olson, Jr., Mancur, The Logic of Collective Action: Public
Goods and the Theory of Groups 144 (1963).............................. 21
Schattschneider, E.E., Politics, Pressures and the Tariff: A Study
of Free Private Enterprise in Pressure Politics, as Shown in the
1929-1930 Revision of the Tariff 287 (1935) .................................. 20
PRELIMINARY STATEMENT
The taxi medallion owners and their co-plaintiffs do not
seriously dispute the express findings in the HAIL Act describing
the lack of safe, reliable, and lawful street-hail service in most of
New York City, including many minority, working-class, and
immigrant communities. Nor do they contest the finding that
there is a dearth of taxis and livery cars citywide capable of
serving persons with disabilities. These persistent deficiencies in
New York City’s vital transit network deny millions of city
residents and visitors access to a crucial means of transportation
to work, school, medical appointments, shopping, courthouses,
places of worship, tourist destinations, airports, and train
stations. Plaintiffs do not meaningfully dispute the State’s
showing that the HAIL Act directly addresses these problems by
putting taxis and livery cars on the city streets to meet the needs
of these underserved communities and groups.
Instead, plaintiffs contend that the Home Rule Clause
prevents the Legislature from addressing these systemic
disparities through the exercise of the State’s inherent police
2
power. But they provide no basis to disregard the Legislature’s
findings that the HAIL Act serves substantial state interests in
the health, safety, and welfare of millions of New York City
residents and visitors. And their arguments are contrary to a
century of home-rule precedent recognizing the Legislature’s
authority to ensure access to transportation in New York City.
Plaintiffs try to draw a bright line between taxicabs and
other forms of public transportation based on factual distinctions
that carry no constitutional significance. Their observation that
taxis are privately owned makes no difference—subways in New
York City were also privately owned when this Court recognized
the State’s power to legislate with respect to them. And while
plaintiffs claim that a history of local taxi regulation forecloses
state action, the city has always regulated taxis in the exercise of
delegated state authority; the State has always retained the
ability to act when needed.
Plaintiffs paint the HAIL Act as improper state interference
in a local power struggle between the City Council and the Mayor.
It is perhaps understandable that they see the Act this way, since
3
their own economic interests have fared quite well under City
Council regulation. But from the State’s perspective, the HAIL Act
is about public policy, not local politics. The Legislature and
Governor acted to address serious and long-standing deficiencies
in transportation access for residents and visitors on the streets of
New York City. The HAIL Act’s provisions directly and reasonably
serve that substantial state interest, and that is dispositive of
plaintiffs’ home-rule challenge.
4
ARGUMENT
POINT I
THE HAIL ACT DOES NOT VIOLATE THE HOME
RULE CLAUSE BECAUSE IT REASONABLY
ADDRESSES A SUBSTANTIAL STATE CONCERN
A. Ensuring Safe and Reliable Transportation
for Millions of New Yorkers Is a Substantial
State Concern.
The HAIL Act addresses the taxi industry’s near-complete
failure to serve many of New York City’s residents, visitors, and
communities. The Legislature’s detailed findings expressly
address the scope of that failure: the majority of the city’s
residents and visitors lack access to legal, licensed taxi service,
and less than two percent of taxis and livery cars are accessible to
persons with disabilities, inhibiting those persons’ basic daily
activities. Act § 1. The Legislature’s findings make clear that the
lack of street-hail service for these underserved groups is a matter
of substantial state concern because of its significant and direct
impact on public health, safety, and welfare. Id.
In making these findings, the Legislature followed the
process this Court has repeatedly endorsed in decades of home-
rule decisions, by identifying with specificity the state interests
5
that the legislation addresses. See City of N.Y. v. Patrolmen’s
Benevolent Ass’n of the City of N.Y. Inc., 89 N.Y.2d 380, 391 (1996)
(PBA I) (citing cases). The findings also accord with this Court’s
precedent long recognizing transportation in New York City as an
area of substantial state concern. See, e.g., Matter of Osborn v.
Cohen, 272 N.Y. 55, 59 (1936); McAneny v. Bd. of Estimate &
Apportionment, 232 N.Y. 377, 393 (1922); Admiral Realty Co. v.
City of N.Y., 206 N.Y. 110, 140 (1912).
The Taxicab Service plaintiffs wrongly argue that the Court
should make an exception to its home-rule doctrine in this case
because the Legislature’s findings were supposedly “reverse-
engineered” to fend off litigation (TSA Br. at 58-59).1 This
argument relies on the unremarkable and indeed laudable fact
that the February 2012 revisions to the Act, which included
1 This brief refers to the plaintiffs-respondents and their
briefs in these three appeals as follows: the “Taxicab Service
plaintiffs” and the “TSA Br.”; the “Greater New York Taxi
plaintiffs” and the “GNYTA Br.”; the “Metropolitan Taxicab
plaintiffs” and the “MTBOT Br.” Intervenor plaintiffs-respondents
in the Metropolitan Taxicab action are identified as the
“intervenor plaintiffs” and their brief is referred to as the
“Intervenor Pls. Br.”
6
provisions demanded by the Governor to further increase access
for persons with disabilities, were accompanied by additional
findings regarding the lack of wheelchair-accessible vehicles.
These additional findings and provisions, far from showing the
Legislature’s conclusions to be a “sham” (TSA Br. at 7), resulted
from a months-long deliberative process inconsistent with any
notion that the HAIL Act was rushed through the Legislature
without foundation or analysis (GNYTA Br. at 17; MTBOT Br. at
21; TSA Br. at 20). To the contrary, representatives of the city,
with the taxi industry’s support, began discussing street-hail
legislation with state legislators in May 2011 following months of
investigation by the TLC. (T1346 (¶¶ 12-13), T1371.) The
Legislature did not pass its own version of the legislation until
late June. (T1349 (¶ 22).) And the Act in its final form is the
product of months of deliberation by the Governor and the
Legislature, including discussions with representatives of the taxi
industry and other stakeholders, which did not conclude until
February 2012. See State Br. at 27. Each step along the way,
including the Governor’s necessary consideration and approval,
7
was part of the legislative process that produced the HAIL Act,
not any extrinsic act of “reverse engineering.”
The Metropolitan Taxicab plaintiffs say that the Act’s
findings are deficient because there is not a separate finding to
correspond with each of a few cherry-picked implementation
provisions among the many in the Act. MTBOT Br. at 35. But no
such standard has ever been imposed in a home-rule case. The
right question is whether the Act’s provisions reasonably serve the
identified state interests, which they do.
The Metropolitan Taxicab plaintiffs also criticize the
Legislature for failing to specifically attribute its decision to
regulate for-hire transportation in New York City to a local
regulatory failure. See MTBOT Br. at 16. But the findings in the
Act amply identified the underlying problems in New York City’s
transportation system that local regulation had failed to address.
There was no need to make an additional record of the extent to
which local government may have contributed to those problems.
Nor can plaintiffs seriously deny the existence and scope of
the problems the Legislature expressly found to exist. It is
8
undisputed that ninety-five percent of taxi pick-ups are
concentrated in the Manhattan central business district and the
airports (T131 (¶ 4)); that the underground street-hail market
created by this concentration serves more than fifty million riders
per year (see T34 (¶ 84)); and that the few wheelchair-accessible
taxis on the city’s streets are readily available less than four
percent of the time, and taxi supply in general is insufficient, even
within the Manhattan central business district (State Br. at 22;
T124). Plaintiffs are thus left to argue that a lack of access to safe,
legal, and reliable street-hail transportation in New York City is
somehow unimportant or beyond the State’s power to regulate—no
matter the ramifications for millions of New York residents and
visitors. But that position is contrary to established home-rule
precedent as well as common sense.
1. Plaintiffs wrongly trivialize the interests
in public health, safety, and welfare
served by the Act.
This Court has repeatedly recognized the State’s substantial
interest in the health, safety, and quality of life of its people. See
PBA I, 89 N.Y.2d at 391; Wambat Realty Corp. v. State, 41 N.Y.2d
9
490, 495 (1977). The connection between that interest and this
legislation ensuring access to legal, reliable transportation for
millions of people who live in, commute into, and visit New York
City is neither fanciful nor obscure.
Plaintiffs contend that taxi service alone is not a sufficiently
important part of the transportation system in New York City to
raise a matter of state concern. MTBOT Br. at 57-59; TSA Br. at
33-47; GNYTA Br. at 40-42. But the Home Rule Clause does not
disable the Legislature from addressing a discrete problem within
a broader area of state interest. For example, a statute that
advances the State’s interests in health, welfare, and
environmental protection by resolving a local issue of water
pollution is not invalid because it fails to regulate air pollution, or
because it deals with landfills but not sewers. See Matter of Town
of Islip v. Cuomo, 64 N.Y.2d 50, 56-57 (1984) (regulating landfills
in Nassau and Suffolk Counties); Robertson v. Zimmermann, 268
N.Y. 52, 59 (1935) (sewers in Buffalo).
Moreover, contrary to various plaintiffs’ contentions, the
concerns addressed by the HAIL Act are neither “narrow” (TSA
10
Br. at 44) nor “trivial” (GNYTA Br. at 42). Taxis in New York City
do not simply provide a more convenient way “to go see a
Broadway show.” GNYTA Br. at 42. Rather, they are an
“indispensable transportation service,” 1936 Legis. Doc. No. 83, at
3, that facilitates myriad daily activities for New York City’s eight
million residents—more than forty percent of the State’s
population—and fifty million annual visitors (see State Br. at 10-
11). The HAIL Act will expand a crucial means of transportation
to persons in wheelchairs and to residents and visitors across the
city, especially in the outer boroughs.
The Taxicab Service plaintiffs wrongly argue that the only
interests substantial enough to warrant state intervention are
those specifically mentioned in the Constitution and “broad or
intensive statewide concerns” like public health and safety. TSA
Br. at 45-46. This Court has squarely rejected the contention that
matters of state concern are limited to “life and health” or subjects
enumerated in “a particular provision in the Constitution.”
Wambat, 41 N.Y.2d at 495; see, e.g., Uniformed Firefighters Ass’n
v. City of N.Y., 50 N.Y.2d 85, 90 (1980) (residency requirements for
11
local firefighters); Hotel Dorset Co. v. Trust for Cultural Res. of
City of N.Y., 46 N.Y.2d 358, 372 (1978) (preservation of museums
and cultural institutions); Bugeja v. City of N.Y., 24 A.D.2d 151,
151 (2d Dep’t 1965), aff’d 17 N.Y.2d 606 (1966) (municipal pension
obligations). 2
In any event, the availability of legal and reliable street-hail
service in vast portions of New York City bears directly on public
health and safety. Many city residents depend on for-hire vehicles
to get to hospitals and medical appointments. And the city’s
underground street-hail market, which currently serves more
2 Plaintiffs mistakenly attempt to distinguish a number of
these cases as involving general laws. TSA Br. at 45-46 & n.18. To
the extent the laws in these cases were general, the law at issue
here is as well. The Court has at times described legislation as
“general,” even though it did not apply to all localities statewide,
where the enactment addresse[d] a matter of substantial state
concern. See Uniformed Firefighters Ass’n, 50 N.Y.2d at 90 (“A
statute dealing with matters of State concern is no less general
because it . . . extends its benefits only to one or a few cities.”).
Thus, for instance, a law imposing costs solely on counties served
by the Long Island Rail Road was “sufficiently ‘general’ within the
sense of” the Home Rule Clause because it “transcend[ed] the
concerns of Nassau County alone and affect[ed] a sizable portion
of the State.” Metro. Transp. Auth. v. County of Nassau, 28 N.Y.2d
385, 390-91 (1971).
12
than 150,000 passengers a day (T34 (¶ 84)), poses substantial
safety risks. Licensed livery cars are often difficult to distinguish
from unlicensed vehicles, leaving passengers “exposed, without
their knowledge, to uninsured and possibly unsafe vehicles and to
drivers with unknown safety records.” (T1367.) The TLC has
found that the safety concerns posed by the underground market
are particularly acute for women, who are understandably
reluctant to enter unlicensed vehicles. (T1356-57.) And the City
Council has found that vehicles operating without an appropriate
license often “lack adequate insurance coverage, are mechanically
unsafe and are not driven by responsible drivers,” and thus “are a
threat to the health, safety and well-being of their passengers and
the general public.” N.Y. City Local Law No. 90, § 1 (1989).
2. Plaintiffs’ factual distinctions between
taxi service and other modes of public
transportation have no constitutional
significance.
In an effort to avoid the Court’s body of decisions recognizing
public transportation in New York City as an area of substantial
state concern (see supra at 5), plaintiffs cite irrelevant factual
13
distinctions between taxis and other forms of public
transportation. They repeatedly contend that taxis are a form of
“private” transportation, as if that label could obscure taxis’ role in
serving the millions of people who make up New York City’s riding
public. The Taxicab Service plaintiffs also assert that Supreme
Court’s differentiation of taxis from other forms of transportation
constitutes a “factual finding[]” beyond this Court’s review. TSA
Br. at 29-31. But factual findings are not properly made on
summary judgment. Vega v. Restani Constr. Corp., 18 N.Y.3d 499,
505 (2012). And the real issue here is not whether factual
distinctions can be drawn between taxis and others forms of public
transportation, but whether those distinctions have constitutional
significance.
Plaintiffs principally attempt to distinguish this Court’s
transportation cases on the ground that taxis are privately owned,
whereas rail facilities and buses are publicly owned. E.g., TSA Br.
14
at 47-55; MTBOT Br. at 57-58; GNYTA Br. at 40-42.3 But this
claim rests on an anachronism. The city’s railways and buses were
privately owned in whole or in part until deep into the twentieth
century—1940 for trains and 1962 for buses4—well after several
important decisions recognizing the State’s substantial interest in
the city’s transportation system.5 See Osborn, 272 N.Y. at 59;
3 The Greater New York Taxi plaintiffs also mistakenly
attempt to distinguish taxis from other means of transportation in
New York City on the basis that the latter serve departure and
arrival points for travel into and out of the city. GNYTA Br. at 40-
41. Taxis also bring thousands of travelers a year to these
departure and arrival points, including the city’s two international
airports (see State Br. at 13), one of which has no subway service.
4 Metro. Transp. Auth., New York City Transit—History and
Chronology, http://www.mta.info/nyct/facts/ffhist.htm; see also
Admiral Realty Co. v. City of New York, 76 Misc. 345, 356-57 (Sup.
Ct. Kings County) (noting private corporation’s ownership of
segments of city’s rail system), aff’d, 151 A.D. 888 (2d Dep’t), aff’d,
206 N.Y. 110 (1912).
5 In yet another anachronism, the Taxicab Service plaintiffs
try to explain these precedents by reference to a constitutional
provision that did not exist until 1938, after they were decided.
See TSA Br. at 37. This provision, former article IX, § 12, granted
local governments authority to regulate their transit facilities
absent any conflict with state law; it did not affect prior judicial
determinations that state authority over transit matters is exempt
from home-rule requirements, as the main case cited by the
Taxicab Service plaintiffs recognized. See Salzman v. Impellitteri,
(continued on next page)
15
McAneny, 232 N.Y. at 393; Admiral Realty, 206 N.Y. at 140.
Indeed, in Adler v. Deegan, the Court noted that even the city’s
ownership of half its train lines did not make them a purely local
concern for home-rule purposes. 251 N.Y. 467, 472 (1929).
Plaintiffs’ reliance on private ownership of taxis fails as a
matter of policy as well as precedent. Taxis’ impact on the public
welfare, safety, and health is not a product of the identity of their
ownership, or any other feature plaintiffs cite, but rather arises
from their critical role in facilitating commerce, tourism, and a
great variety of other activities by offering transportation at
standard rates to anyone who hails them. That fundamentally
public character is the reason that taxis are heavily regulated, and
there is nothing inherently “local” about the nature of that
regulation.
Nearly a century ago, this Court held that taxis, like trains
and buses and unlike private automobiles, are “public
203 Misc. 486 (Sup. Ct. N.Y. County), aff’d as modified, 305 N.Y.
414 (1953); see also N.Y. Const., art. IX, § 12 (McKinney 1954);
N.Y. Const. art. XII, § 3 (McKinney Supp. 1938) (text of
predecessor provision prior to 1938 amendment).
16
conveyance[s],” as they provide a “public offer of conveyance at a
fixed fare to all.” Anderson v. Fidelity & Cas. Co. of N.Y., 228 N.Y.
475, 487 (1920) (emphasis added); see also id. at 484-87. The Court
rejected unprincipled attempts to differentiate taxis from other
public transportation, including a claim, highly reminiscent of
arguments here (see GNYTA Br. at 40-41), that taxis are
fundamentally different because they carry single passengers or
groups to requested destinations without interruption. The Court
noted that express trains also carry limited groups of riders to a
specific destination without stopping. See Anderson, 228 N.Y. at
486-87. Neither this nor any other factual detail of taxis’ operation
changes their essentially public character.
As at least one group of plaintiffs here recognizes, taxis are a
“critical component of mass transportation in New York City.”
MTBOT Br. at 15 (emphasis added). Likewise, the City Council
has referred to “an overall public transportation policy governing
for-hire transportation,” 35 Rules of City of N.Y. § 52-01 (2012)
(emphasis added), and elsewhere identified taxis—along with
subways, buses, and vans—as “[p]ublic means of mass
17
transportation,” N.Y. City Admin. Code § 17-503(2) (emphasis
added); see also 24 Rules of City of N.Y. § 175.105(b)(1) (2012)
(“public modes of transportation” include taxis, buses, subways,
trams, car services, trains, and ferries).
3. Plaintiffs’ slant on history does not
negate the existence of a substantial
state concern.
Plaintiffs also contend that “the vagaries of politics and
history” have given the city sole and irrevocable authority over the
taxi industry. MTBOT Br. at 58; see also TSA Br. at 47-55;
GNYTA Br. at 33-40. But they are wrong on both the law and the
history. The Home Rule Clause does not freeze in place the details
of state and local regulatory history. Moreover, local taxi-supply
regulation has occurred pursuant to an express legislative grant of
authority, and numerous enactments demonstrate the State’s
ongoing interest in transportation access in New York City.
Plaintiffs are incorrect in saying that Wambat, Adler, and
Osborn assign the details of regulatory history a “control[ling]”
role in home-rule analysis. MTBOT Br. at 52-53; see also TSA Br.
at 47-49; GNYTA Br. at 33-35. The first two of those decisions
18
upheld state legislation over home-rule challenge. Wambat
recognized that a history of state regulation is one way to
demonstrate a substantial state concern, but did not suggest that
it is the only way. See 41 N.Y.2d at 495. And in Adler, Judge
Crane stressed the foundational nature of the State’s police
powers to reinforce the conclusion that reason and precedent
compelled—namely, that home-rule concerns cannot restrict the
State’s exercise of those historic powers. 251 N.Y. at 478. In the
same case, Judge Cardozo recognized, in concurrence, that in
matters involving both local and state interests, the locality is free
to regulate only until the State has intervened. Id. at 491.
Of the three cases cited by plaintiffs, only Osborn upheld a
home-rule challenge. The Court there emphasized the role of
history in identifying matters of local concern, but also
acknowledged that state legislation affecting a matter of local
concern will be upheld if it serves a state interest that transcends
purely local concern. Osborn, 272 N.Y. at 59. In rejecting the
health-and-safety interests proffered to justify state legislation
regarding the shifts of city firemen, the Court primarily relied not
19
on history, but on the absence of a foundation in the record
showing that the legislation was actually enacted to serve those
health-and-safety interests. Id. And Osborn expressly recognized
that “[t]ransportation” is an area of state concern. Id. at 59.
This Court’s recent decisions confirm that the legislative
record may demonstrate a substantial state interest absent a
history of state regulation. In PBA I, the Court cited Osborn for
the point that the terms and conditions of employment of local
safety employees are a matter of local concern, see 89 N.Y.2d at
389, but that did not end the matter. Rather, the Court proceeded
to ask whether the legislation at issue reasonably served a
substantial state interest discernible in statutory language,
structure, or history, and invalidated the statute only after
concluding that it did not. See id. at 392-94. Five years later, the
Court upheld legislation on the same subject, relying heavily on
the Legislature’s express findings that the reforms would further
the public health and safety. See Patrolmen’s Benevolent Ass’n of
the City of N.Y. Inc. v. City of N.Y., 97 N.Y.2d 378, 387-88 (2001)
(PBA II); see also Unif. Firefighters Ass’n, 50 N.Y.2d at 90 (State
20
has substantial interest in offering residential mobility to
municipal police, fire, and sanitation workers); Matter of Kelley v.
McGee, 57 N.Y.2d 522, 538-40 (same, with respect to salaries of
district attorneys). In the intervening years, the legislative record,
not the history, changed.
This Court has wisely declined to adopt any rule that ossifies
particular historical patterns in state and local regulation. Such a
rule would discourage the Legislature from deferring to local
regulation, lest that restraint result in loss of the power to act
later. Such a rule would also have the perverse effect of barring
state intervention to remedy local regulatory failure. This would
facilitate capture of local regulators by special interest groups.6
Studies have shown that capture of local authorities has been a
6 See E.E. Schattschneider, Politics, Pressures and the Tariff:
A Study of Free Private Enterprise in Pressure Politics, as Shown
in the 1929-1930 Revision of the Tariff 287 (1935) (“[A] few can
exert great influence on the process of government because they
are organized and because . . . they know what they want, and
have [economic] power . . . .”); see also Mancur Olson, Jr., The
Logic of Collective Action: Public Goods and the Theory of Groups
144 (1963) (“[T]he organized and active interest[s] of small groups
tend to triumph over the unorganized and unprotected interests of
larger groups.”).
21
significant problem as to taxi regulation in many major cities,
including New York City.7
In any event, the history in New York does not support
plaintiffs’ claim that regulation of taxi supply is inherently or
exclusively a city domain. Plaintiffs adopt a myopic and distorted
view, focusing solely on the regulatory history of taxis to the
exclusion of other forms of transportation, and then
misrepresenting key elements of the history of taxi regulation.
Local governments across the State did not have the authority to
regulate taxi supply until the Legislature expressly delegated it to
7 Competition Comm., OECD, Taxi Services: Competition
and Regulation 7-8 (2007), available at http://www.oecd.org/
regreform/liberalisationandcompetitioninterventioninregulatedsec
tors/41472612.pdf. In a 1984 report, the Federal Trade
Commission found that “it appears that taxi regulations have
often been designed to protect . . . existing taxi firms from
competition,” and concluded that many such regulations “impose a
disproportionate burden on low income people.” Bureau of
Economics, FTC, An Economic Analysis of Taxicab Regulation 1,
6-7 (1984), available at http://www.ftc.gov/be/econrpt/233832.pdf.
The same year, the FTC brought administrative actions against
two cities over anticompetitive conduct in the regulation of their
taxi industries. See In re City of New Orleans, 105 F.T.C. 2 (1984);
In re City of Minneapolis, 105 F.T.C. 304 (1984). FTC decisions are
available at www1.ftc.gov/os/decisions/index.shtm.
22
them through General Municipal Law § 181 in 1956. Having
delegated this power to cities by statute, the Legislature remains
free to act in the field.
The Metropolitan Taxicab and Taxicab Service plaintiffs
argue that § 181 should be viewed as a codification of local
governments’ inherent home-rule authority (MTBOT Br. at 55-56,
60; TSA Br. at 38-39), but the history refutes this point. Before
§ 181 was enacted, localities came to the Legislature one by one
for authority to limit taxi supply. The statute was enacted to
address the matter by general law. Letter from Sen. Thomas C.
Desmond to Daniel Gutman, Counsel to the Governor, reprinted in
Bill Jacket for ch. 209 (1956), at 6.
The Metropolitan Taxicab and Taxicab Service plaintiffs
wrongly contend that a 1983 informal opinion of the Attorney
General endorses their view of § 181. See MTBOT Br. at 55-56, 60
(citing 1983 N.Y. Op. Att’y Gen. (Inf.) 4, at 66, 1983 WL 167364);
TSA Br. at 38-39 (same). But the opinion neither says nor implies
what they suggest it does. Rather, the opinion emphasizes that
the statute represents a “clear grant of authority by the State
23
Legislature” regarding taxis that reflects a “clearly articulated
policy of the State Legislature to displace competition with
regulation.” 1983 N.Y. Op. Att’y Gen., supra, at 67, 71. That
conclusion was pivotal to the opinion’s conclusion that cities in
New York are not subject to federal antitrust scrutiny for limiting
the number of taxicab licenses they issue. Id. at 71.
As the opinion explained, federal antitrust law recognizes a
doctrine of absolute “state-action immunity” that gives States
room to restrict competition in particular areas without drawing
federal antitrust scrutiny. State-action immunity extends to a
local restriction on competition only if a city adopts it pursuant to
a clearly articulated state policy to exclude competition. See City of
Lafayette v. La. Power & Light Co., 435 U.S. 389, 414-15 (1978).
The Supreme Court has made clear that state-action immunity
does not apply when a municipality acts pursuant to general
constitutional home-rule powers. See Cmty. Commc’ns Co. v. City
of Boulder, 455 U.S. 40, 54-56 (1982) (city not immune for
anticompetitive regulation of cable television pursuant to state
constitutional home-rule grant of autonomy over local affairs); see
24
also F.T.C. v. Phoebe Putney Health Sys., Inc., 133 S. Ct. 1003,
1012 (2013) (applying City of Boulder to anticompetitive
acquisition practices of local hospital authorities created by state
law). The Attorney General’s conclusion that municipal
restrictions on taxi supply in New York enjoy state-action
antitrust immunity thus confirms that § 181 expresses a state
policy that the Legislature is free to change.
The opinion’s description of § 181 as “a home rule measure,”
1983 N.Y. Op. Att’y Gen., supra, at 67, is not to the contrary. The
statement paraphrases part of a 1956 letter by § 181’s legislative
sponsor that, when read in full, conveys a very different meaning
from the one plaintiffs suggest. See MTBOT Br. at 55-56, 60; TSA
Br. at 38-39. The 1956 version of the Home Rule Clause authorized
the Legislature to pass general laws granting cities such powers
“as it may, from time to time, deem expedient,” and equally
authorized the Legislature to “withdraw such powers.” N.Y.
Const., art. IX, § 11 (McKinney 1954). It was in this specific sense,
not helpful to plaintiffs here, that § 181’s sponsor regarded the
legislation as a “home rule measure.” Desmond Letter, supra, at 6.
25
Consequently, neither the legislative history of § 181 nor any
statement by the Attorney General supports plaintiffs’ argument
that taxis are a matter of purely local concern under the Home
Rule Clause. In fact, the State’s long history of regulating
transportation in New York City and taxis in the metropolitan
area and elsewhere confirms that the Legislature has not
relinquished its authority over the subject matter of the HAIL Act.
See State Br. at 58-59. Although the Taxicab Service plaintiffs
object that general laws regulating taxi service are not probative
(TSA Br. at 42), the State has passed special legislation relating to
taxis as well, see Tax Law § 1281 (imposing a tax on taxi trips
within the region around New York City). In any case, general
legislation regarding taxis confirms the State’s continuing interest
in the subject matter.
26
* * *
The HAIL Act addresses substantial state concerns as the
Legislature expressly found in § 1 of the Act. That determination
accords with more than a century of home-rule decisions by this
Court, and neither taxis’ supposedly distinctive characteristics nor
the history of taxi regulation changes the analysis.
Faced with this reality, the Metropolitan Taxicab plaintiffs
hint that an expansion of home-rule doctrine is warranted because
of a supposed trend of increasing home-rule powers in succeeding
constitutional amendments. See MTBOT Br. at 29-34. But this
Court has expressly held that each amendment of the Home Rule
Clause—the last of which occurred in 1963—preserved “the
judicial gloss of the pre-1963 cases . . . favoring the State’s power”
over matters of substantial state concern. Wambat, 41 N.Y.2d at
497. And plaintiffs offer no persuasive reason to “limit[ ] or
whittle[ ] away” the Legislature’s ability to protect the public
health, safety, and welfare in the name of home rule. Adler, 251
N.Y. at 478.
27
B. The Act’s Provisions Directly and Reasonably
Relate to the State’s Substantial Concern for
Safe and Reliable Transportation in New
York City.
The HAIL Act reasonably serves the substantial state
interests in ensuring safe and reliable transportation for
underserved areas and persons with disabilities by making
thousands of additional vehicles available for street hail,
especially in the outer boroughs, and putting thousands more
wheelchair-accessible for-hire vehicles on the streets throughout
the city. See Act §§ 5, 8; State Br. at 29-31. Plaintiffs variously
argue that these measures are “overbearing” (TSA Br. at 92) or
unwise (see Intervenor Pls. Br. at 16-18), but they do not seriously
dispute that the provisions are rationally related to the state
interests identified in the Act’s express findings, see Act § 1. That
ends the matter under the Court’s precedents. See PBA II, 97
N.Y.2d at 388 (special law constitutional if it “rationally serve[s]”
substantial state interest); PBA I, 89 N.Y.2d at 391 (“reasonable
relationship” between ends and means required).
Unable to rebut that the Act as a whole is rational, plaintiffs
attack a few of its details under a form of exacting clause-by-
28
clause scrutiny that this Court has never applied in any home-rule
case.8 See State Br. at 64-68. A home-rule challenge does not open
the door for litigants to second-guess each of the innumerable
decisions and points of compromise embodied in state legislation.
Nor would it be workable or appropriate for the constitutionality
of such legislation to turn on whether litigants can hypothesize a
less-restrictive means that they contend would achieve state
objectives equally well.
In any event, each of the provisions targeted by plaintiffs
directly and reasonably advances the Act’s objectives. The
Legislature is not required to defer to local regulatory
arrangements when addressing a matter of substantial state
concern. And there is no reason to start imposing such a
8 Plaintiffs collectively are able to cite only a single trial-
court decision, City of New York v. State, 168 Misc. 2d 750 (Sup.
Ct. N.Y. County 1995), as authorizing scrutiny of individual
statutory provisions under the Home Rule Clause. MTBOT Br. at
46. But the case does nothing of the sort. The plaintiffs there
challenged a distinct statute within an omnibus bill containing
numerous unrelated measures. Id. at 752. Here, by contrast,
plaintiffs try to pick apart individual provisions of a single
program to ensure access to safe and reliable for-hire
transportation for residents and visitors to New York City.
29
requirement in this case, when local arrangements have
persistently failed to address the very problems giving rise to state
action.
1. The provision delegating executive
implementation responsibility to the
Mayor is reasonable.
Among the Act’s numerous provisions, plaintiffs focus
primarily on the language delegating to the Mayor executive
implementation authority as to the issuance of new taxi
medallions for wheelchair-accessible vehicles. See GNYTA Br. at
29-30; MTBOT Br. at 39; TSA Br. at 72. Section 8 of the Act
provides: “The city of New York may, acting by the mayor alone,
administratively authorize the TLC or its successor agency to
issue up to two thousand taxicab licenses.” In addition to capping
the number of authorized medallions at two thousand, the section
constrains the Mayor’s implementation authority by imposing
specific wheelchair-accessibility standards and conditioning the
issuance of any new medallions on the TLC’s issuance of outer-
borough HAIL licenses for livery cars. Act § 8.
30
Plaintiffs give this uncontroversial delegation provision a
significance it does not deserve. The choice of the Legislature—
itself an elected body—to delegate cabined authority to the Mayor
is no affront to local democracy. To the contrary, giving
implementation authority to the city’s elected chief executive,
rather than to a state agency, shows deference to local
government. Nor is the delegation provision unusual: the
Legislature regularly delegates implementation authority to the
Mayor using essentially identical statutory language, as we have
shown. See State Br. at 69-70. Plaintiffs say that this commonly
used delegation clause is unconstitutional here, because it “shifts
power” between the Mayor and City Council without serving any
state interest. See MTBOT Br. at 64; TSA Br. at 82. But they are
wrong on both points: (1) the delegation does not effect any such
shift of power, and (2) the clause would be constitutional even if it
did shift power because it rationally serves state objectives.
Plaintiffs rely on a provision in the New York City Charter
stating that additional taxi medallions may be issued “only upon
the enactment of a local law,” N.Y. City Charter § 2303(b)(4). But
31
the City Charter does not constrain acts of the State Legislature.
The HAIL Act does not give the Mayor any local legislative power
that the City Council formerly possessed. Instead, the State
Legislature has exercised its legislative power to authorize the
Mayor to issue additional medallions administratively.
In this regard, the Act differs little from the local laws
passed by the City Council on the rare occasions since 1937 when
it has approved new medallions: the Act and local laws alike
delegate to an executive agency or officer the authority to issue up
to a certain number of medallions.9 Such a limited grant of
authority to implement a specific legislative decision is hardly
comparable to the general authority wielded by the authorizing
legislative body. That the delegation in this case is to the Mayor,
as opposed to TLC, does not change this basic fact—especially if
one accepts the Taxicab Service plaintiffs’ description of the TLC
9 For example, a 1996 local law provided: “[T]he commission
[TLC] is hereby authorized to issue additional taxicab licenses,
provided, however, that the number of such additional licenses
issued shall not exceed four hundred.” N.Y. City Local Law No. 15
(1996); see also N.Y. City Local Law No. 18 (2006); N.Y. City Local
Law No. 51 (2003) (both similar).
32
as the Mayor’s agency (TSA Br. at 76, 77, 81). Plaintiffs’ real
complaint is not that the Act delegates implementation authority
to the Mayor, but that the City Council did not do the delegating.
Yet that is just another way to say that a home-rule message is
required for any state-level authorization of additional taxi
medallions, a point we have elsewhere refuted. See State Br. at 58
n.30.
Even if the delegation provision did shift power among city
actors (and it does not), this would not make it unconstitutional.
In Hotel Dorset, this Court rejected essentially the same argument
that plaintiffs make here, upholding over home-rule challenge a
statute to fund the Museum of Modern Art. 46 N.Y.2d at 372-73.
By its terms, the legislation took effect only upon ratification by
the New York City Board of Estimate. Id. at 366-67. The law’s
challengers, like plaintiffs here, argued that the purpose of this
provision was to circumvent the City Council, which opposed the
legislation. Brief of Pl.-Resp. at 41, Hotel Dorset, 46 N.Y.2d 358
(N.Y. County Index No. 18933/1976). But the Court rejected that
argument and upheld the legislation. Hotel Dorset, 46 N.Y.2d at
33
372-73. The Metropolitan Taxicab plaintiffs rely heavily on the
dissenting opinion in Hotel Dorset (MTBOT Br. at 41-42), but the
majority opinion went the other way.
Nor are plaintiffs correct that the delegation of executive
authority to the Mayor, as opposed to the City Council, serves no
state interest. At bottom, plaintiffs’ argument rests on the
implausible assertion that the Legislature and Governor’s real
objective was not to increase access to for-hire vehicles on New
York City’s streets, but to aggrandize the Mayor in an internal
struggle with the City Council. This is refuted by the record
showing that the Legislature and Governor gave careful
consideration to the Act and made major changes to the Mayor’s
original proposal. State Br. at 24-27, 63-64.
Moreover, observers of New York politics know that the
Mayor’s proposals have often run aground in Albany.10 For
10 Plaintiffs wrongly object to the State’s references to
matters of public record. TSA Br. at 31 n.4, 41. Those materials
are properly considered because they disclose legislative facts that
illuminate the context of the challenged legislation, not
(continued on next page)
34
instance, the Mayor’s signature “congestion-pricing” proposal for
Manhattan died in the Assembly in 2008 despite his vigorous
advocacy, as did the Mayor’s proposal to build a football stadium
on Manhattan’s West Side.11 The Mayor also has publicly clashed
with the Legislature over pension reform and the state budget,12
and with the Governor on issues ranging from seniority protection
for school teachers and teacher evaluations to funding for the 9/11
museum.13 All this led one New York City newspaper, upon
passage of the HAIL Act, to proclaim: “Throw your hands up,
Mayor Bloomberg finally won one in Albany!”14
evidentiary facts about the parties and the litigation. See Affronti
v. Crosson, 95 N.Y.2d 713, 719 (2001).
11 Nicholas Confessore, $8 Traffic Fee for Manhattan Gets
Nowhere, N.Y. Times (Apr. 8, 2008).
12 Glenn Blain, Senate’s De-Livery for Boros, Street Hails for
Non-Medallion Cabs OKd, N.Y. Daily News (June 25, 2011);
Thomas Kaplan, Bloomberg Urges State Legislators to Reduce
Mandates, N.Y. Times (Feb. 8, 2011).
13 Charles V. Bagli, Dispute on Costs Delays Opening of 9/11
Museum, N.Y. Times (Sept. 8, 2012); Michael Barbaro & Nicholas
Confessore, Bloomberg Presses Cuomo on Teacher Seniority Rule,
N.Y. Times (Jan. 30, 2011); Jacob Gershman, Cuomo Abstains in
City-UFT Fight, Wall St. Journal (Feb. 15, 2012).
14 Blain, Senate’s De-Livery for Boros, supra.
35
The reason the Legislature and Governor took up the
Mayor’s proposal this time, albeit with significant changes, is that
they found a need to address serious and persistent deficiencies in
taxi access in New York City. Though the Mayor’s support for the
legislation is not why the Legislature enacted the bill or the
Governor signed it, the Mayor’s support meant that delegating
implementation authority to the Mayor made perfect sense. The
Legislature could be confident that the Mayor would implement
the Act to serve the legislative objective of putting needed for-hire
vehicles on the road in an orderly yet expeditious manner.15
Indeed, the TLC has made clear that it plans to auction the full
two thousand authorized medallions for wheelchair-accessible
taxis within three years. (M32-33 (¶¶ 33-35)).16
15 Other provisions of the Act are likewise designed to ensure
that city officials implement the statute to address the identified
deficiencies in transportation access without undue delay. For
example, the Act: (1) exempts the issuance of HAIL licenses to
existing livery licensees from lengthy environmental review, Act
§ 5(h); and (2) directs TLC to offer six thousand HAIL licenses
within the first twelve months of the program, id. § 5(b).
16 For the same reason, the Legislature’s decision to cap the
number of medallions to issue, rather than specifying an exact
(continued on next page)
36
It also made sense not to delegate implementation authority
to the City Council. The Legislature had reason to be concerned
that the City Council, as “longtime recipients of the taxi industry’s
largesse” via campaign contributions (M174), might not
implement the Act fully or expeditiously. See State Br. at 18-19
(detailing the history of City Council opposition to measures to
improve access to taxis). The industry had aggressively lobbied
the Council to oppose the Mayor’s initial street-hail proposal. (See
T1573.) And the Taxicab Service plaintiffs themselves say the
Council rejected the Mayor’s proposal partly because they thought
it authorized too many new medallions. TSA Br. at 19. Plaintiffs
number, does not suggest any nefarious motive, as Supreme Court
supposed. (T2162.) The number of medallions ultimately issued is
beyond the Mayor’s control, because it depends on numerous
purchasers’ decisions at auction. But there was little doubt that
the Mayor would offer the full number of medallions authorized.
(See M506, T1366.) In the three local laws authorizing new
medallions, the City Council also set a cap, not an exact number to
be issued. N.Y. City Local Law No. 18 (2006); N.Y. City Local Law
No. 51 (2003); N.Y. City Local Law No. 15 (1996). In each
instance, the TLC auctioned the full number authorized, and all of
the medallions sold. (See T2143 (total of 1,450 medallions
authorized in three issuances); T131-32 (¶ 4) (noting total of 1,450
additional New York City taxis since 1970s).)
37
are thus incorrect that the Legislature’s goals would have been
achieved equally well if the Act had made issuance of the newly
authorized medallions for wheelchair-accessible vehicles “a
Council prerogative” (MTBOT Br. at 45).
2. The provisions concerning the wheelchair-
accessibility grant program and allocation
of enforcement responsibility are likewise
reasonable.
The Metropolitan Taxicab and Taxicab Service plaintiffs
further contend that the effects of the HAIL Act on the city’s
finances render the law invalid. MTBOT Br. at 61-63; TSA Br. at
82-87. Neither they nor Supreme Court has identified any case in
which a state law was struck down under the Home Rule Clause
for affecting city finances. Nor does the HAIL Act infringe on the
city’s control over its finances in any way.
First, plaintiffs challenge the Act’s provisions in § 9(b)
regarding the grant program to help HAIL licensees purchase or
retrofit wheelchair-accessible vehicles. MTBOT Br. at 61-63; TSA
Br. at 83-86. But the grant program furthers the goal of increasing
street-hail service for persons with disabilities, without impairing
38
the city’s power of the purse. We have shown that the grant
program can be understood merely as using HAIL license fees
from licensees who do not obtain or retrofit wheelchair-accessible
vehicles to defray costs for those who do. See State Br. at 71-72.
Plaintiffs do not dispute that the $54 million ceiling on the grant
program exactly equals the amount in HAIL license fees the city
would earn if it issued all 18,000 HAIL licenses authorized by the
Act.
Plaintiffs counter that the TLC may decide to issue fewer
than the full 18,000 HAIL licenses. MTBOT Br. at 63; TSA Br. at
85. But so too the city may implement a proportionally smaller
grant program, because the Act does not specify a minimum dollar
amount for the grant program. A reasonable reading of the Act
would permit the city to tailor the size of the grant program to the
number of HAIL licenses issued by TLC. Moreover, even if this
were not so, there is no reasonable possibility that the grant
program will strain the city’s coffers. The Metropolitan Taxicab
plaintiffs acknowledge that the city stands to receive as much as
$2 billion from auctioning new taxi medallions. MTBOT Br. at 38.
39
They do not explain why the Home Rule Clause would bar the
Legislature from requiring the city to implement an accessibility
grant program of up to $54 million as a modest offset to those
huge revenues. They suggest that the State should have funded
the grant program itself, and say there is no independent state
interest in having the city pay. MTBOT Br. at 62. But it is the city
and not the State that will receive the revenue from the issuance
of HAIL licenses and new taxi medallions under the Act. That is
reason enough to require the city to fund the grant program.
Second, the Taxicab Service plaintiffs contend that the HAIL
Act improperly prohibits the City Council from controlling funds
that city agencies receive from enforcing the Act’s restrictions.
TSA Br. at 86-87. They claim the Act overrides the requirement of
the City Charter that such funds be remitted to the city’s general
fund (TSA Br. at 86-87), but they are simply incorrect in their
reading of the statute. The language that they contend removes
the City Council’s control—“[n]otwithstanding the provisions of
any other law to the contrary”—appears in a sentence that
authorizes the state police and Port Authority police to enforce the
40
Act, and cannot plausibly be read to affect how the city manages
the funds city agencies receive. See Act § 23. Both the State and
the city are on record saying that the Act does not affect the City
Council’s control over funds received by city law-enforcement
agencies for citations issued to enforce the Act. State Br. at 72;
City Br. at 61.
POINT II
PLAINTIFFS’ OTHER CLAIMS LACK MERIT
A. The Act Does Not Violate the Double
Enactment Clause.
Plaintiffs do not dispute that the Court held in Wambat that
the Double Enactment Clause is inapplicable to legislation
addressing matters of substantial state concern. See 41 N.Y.2d at
497. One group of plaintiffs asks the Court to overrule that
holding. See GNYTA Br. at 46 n.22. But the principle recognized
in Wambat has deep constitutional roots and cannot easily be
disturbed—it is grounded in the Constitution’s express textual
reservation to the Legislature of authority over “matters other
41
than” local property, affairs, or government, N.Y. Const. art. IX,
§ 3(a)(3); see Wambat, 41 N.Y.2d at 495-97.
Moreover, the HAIL Act does not trigger the Double
Enactment Clause. Though the Metropolitan Taxicab plaintiffs
argue that double enactment is required whenever state
legislation overrides a provision of local law (MTBOT Br. at 65-
66), that is not what the clause says. Nor has the Court ever so
held. By its terms, the clause imposes the requirement of double
enactment only in the narrow circumstance where a state law
repeals or impairs one of the powers enumerated in the Statute of
Local Governments. See N.Y. Const. art IX, § 2(b)(1). Section 10 of
the Statute of Local Governments lists the power of localities to
“adopt, amend, and repeal ordinances, resolutions, and rules and
regulations,” § 10(1); acquire, dispose of, and earn rents from
property and recreational facilities, § 10(2)-(5); enact zoning
regulations, § 10(6); and perform planning work relating to its
jurisdiction, § 10(7). The power to regulate taxis and restrict taxi
supply is not enumerated in the Statute of Local Governments.
Rather, that power is delegated to local governments in General
42
Municipal Law § 181, and thus as a plain textual matter it is not
subject to the Double Enactment Clause.17
Nor do the Metropolitan Taxicab plaintiffs identify support
for their contention (MTBOT Br. at 65-66) that the Double
Enactment Clause is triggered every time the Legislature
overrides or amends particular local enactments made in the
exercise of a power conferred by the Statute of Local
Governments. The only instance in which this Court has found the
clause to apply involved legislation that entirely precluded certain
localities from exercising one of those powers in the future. See
Wambat, 41 N.Y.2d at 492-95 (legislation effectively prevented
17 We have already refuted plaintiffs’ suggestion that the
power to enact “ordinances, resolutions, and rules and
regulations” is implicated here. State Br. at 76 n.34. The city has
regulated taxi supply through local laws, which are different from
“ordinances, resolutions and rules and regulations.” The power to
enact local laws derives directly from the Constitution’s home-rule
article, see N.Y. Const. art. IX, § 2(c), not the Statute of Local
Governments. See also Municipal Home Rule Law § 10. The
Metropolitan Taxicab plaintiffs point to the general reference to
“local legislation and administration” in the prefatory paragraph
of § 10 of the Statute of Local Governments (MTBOT Br. at 64),
but that prefatory language does not confer any power protected
by the Double Enactment Clause; the specific enumeration of
powers later in the section does so.
43
localities from enacting zoning ordinances). The HAIL Act, which
merely amends particular provisions of local law to conform with
the Act’s substantive provisions, see Act §§ 25-29, does not
similarly displace any power of the city, let alone any power that
is enumerated in the Statute of Local Governments.
B. The Act Does Not Violate the Exclusive
Privileges Clause.
Like Supreme Court, the Greater New York Taxi and
Metropolitan Taxicab plaintiffs fundamentally misconstrue the
scope of the Exclusive Privileges Clause. As we have explained,
this Court has held for more than 125 years that the clause is a
narrow prohibition on the creation of monopolies by the
Legislature. State Br. at 79-89. Plaintiffs do not, and cannot,
make any serious argument that a law granting licenses to an
open class of thousands of livery operators, all in competition with
one another, amounts to a monopoly.
Nor can they avoid the irony inherent in their contention
that the Exclusive Privileges Clause bars legislation granting
others an outer-borough street-hail privilege that they already
44
hold, yet seldom exercise. And they do not even attempt to defend
Supreme Court’s erroneous holding that the creation of the
accessibility grant program violates the Exclusive Privileges
Clause (T2164-65).
Plaintiffs claim the HAIL Act violates the Constitution
because only livery operators in good standing for specified
periods are eligible to obtain HAIL licenses and base permits.
GNYTA Br. at 47-48; MTBOT Br. at 71. But they cannot credibly
compare the legislation in this case, which provides for the
issuance of 18,000 HAIL licenses to a class of 60,000 livery
operators meeting generalized criteria, to any statute that this
Court or any other has found to confer an unconstitutional
“exclusive” privilege.
The legislation in Fox v. Mohawk & Hudson River Society,
165 N.Y. 517 (1901), was held unconstitutional because it granted
a monopoly to one humane society in each county, and the First
Department’s decision in 19th Street Associates v. State, 172
A.D.2d 380, 381 (1st Dep’t 1991), aff’d on other grounds, 79 N.Y.2d
434 (1992), involved a statute that effectively nullified a prior
45
consent decree that would have allowed eviction of specified
tenants in a single New York City apartment building after a
designated period.
In addition, plaintiffs ignore that the Act neither prevents
the Legislature (or the City Council) from issuing additional HAIL
licenses and base permits or otherwise conferring equivalent
rights on others, nor promises any HAIL licensee the right to
exclude others from competition.
The Metropolitan Taxicab plaintiffs wrongly try to
distinguish this case from Consumers Union of U.S., Inc. v. State,
5 N.Y.3d 327 (2005), by arguing that here there are “only” 18,000
prospective HAIL licenses, whereas, in Consumers Union, an
infinite number of corporations theoretically could have been
allowed to convert from nonprofit to for-profit status. See MTBOT
Br. at 71. This argument misses the point of Consumers Union,
which is that an exclusive-privileges claim will lie only if the
Legislature could not grant the same privilege to others without
invading the privilege granted to the beneficiary of the challenged
legislation. See State Br. at 80-81. That element is not satisfied
46
here, because the Act does not promise HAIL licensees that the
number of such licenses will be forever capped at 18,000.18
18 Though the Greater New York Taxi and Metropolitan
Taxicab plaintiffs argue that HAIL licensees will be charged a fee
lower than market value for their licenses (see GNYTA Br. at 48;
MTBOT Br. at 71), the Exclusive Privileges Clause does not
require that all government licenses be auctioned by competitive
bidding. In any event, plaintiffs offer no evidence that the market
value of this new and untested category of license will be
substantially greater than the licensing fee. See MTBOT Br. at 71.
Indeed, they argue that street-hail service is not economically
well-suited to the outer boroughs (see MTBOT Br. at 10-11), and
that the issuance of 18,000 HAIL licenses will lead to chaos in the
for-hire vehicle industry (see GNYTA Br. at 37-38)—which stands
in tension with their claims about the supposed resale value of
those licenses.
47
CONCLUSION
For the reasons stated above and in our principal brief,
Supreme Court’s judgment should be reversed.
Dated: New York, NY
March 22, 2013
BARBARA D. UNDERWOOD
Solicitor General
RICHARD DEARING
Deputy Solicitor General
ANDREW W. AMEND
CLAUDE S. PLATTON
Assistant Solicitors General
of Counsel
Respectfully submitted,
ERIC T. SCHNEIDERMAN
Attorney General of the
State of New York
By: ____________________________
ANDREW W. AMEND
Assistant Solicitor General
120 Broadway
New York, NY 10271
(212) 416-8022
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