Empire State Chapter of Associated Builders and Contractors, Inc., et al., Appellants,v.M. Patricia Smith,, et al., Respondents.BriefN.Y.April 24, 2013To be Argued by: TIMOTHY W. HOOVER (Time Requested: 20 Minutes) APL-2012-00231 Appellate Division Docket No. CA 11-01813 Erie County Clerk’s Index No. I 2009-3725 Court of Appeals of the State of New York EMPIRE STATE CHAPTER OF ASSOCIATED BUILDERS AND CONTRACTORS, INC., COUNTY OF ERIE, CHRIS COLLINS, BUFFALO NIAGARA PARTNERSHIP INC., INNOVATIVE MECHANICAL SYSTEMS, INC., M.G.M. INSULATION, INC., ALLEGHANY INDUSTRIAL INSULATION CO., DANIEL J. BRINSKY, and DOUG BYERLY, Plaintiffs-Appellants, – against – M. PATRICIA SMITH, in her official capacity, as Commissioner, New York State Department of Labor, and THOMAS P. DINAPOLI, in his official capacity, as Comptroller, State of New York, Office of the Comptroller, Defendants-Respondents. REPLY BRIEF FOR PLAINTIFFS-APPELLANTS PHILLIPS LYTLE LLP Attorneys for Plaintiffs-Appellants 3400 HSBC Center Buffalo, New York 14203 Tel.: (716) 847-8400 Fax: (716) 852-6100 Of Counsel: Michael B. Powers, Esq. Timothy W. Hoover, Esq. William J. Simon, Esq. March 28, 2013 - i - DISCLOSURE STATEMENT Pursuant to 22 NYCRR § 500.1(f): plaintiff-appellant Empire State Chapter of Associated Builders and Contractors, Inc. advises the Court that it is an independent, domestic, not-for-profit corporation that is affiliated with, as a chartered chapter of, Associated Builders and Contractors, Inc.; plaintiff-appellant Buffalo Niagara Partnership Inc. advises the Court that Buffalo Niagara Partnership Foundation, Committee for Economic Growth, Business Benefits LLC and 665 Main LLC are its affiliates; plaintiff-appellant Innovative Mechanical Systems, Inc. advises the Court that it has no parents, subsidiaries, or affiliates; plaintiff-appellant M.G.M. Insulation, Inc. advises the Court that it has no parents, subsidiaries, or affiliates; and plaintiff-appellant Alleghany Industrial Insulation Co. advises the Court that it has no parents, subsidiaries, or affiliates. - ii - TABLE OF CONTENTS Page DISCLOSURE STATEMENT ................................................................................... i TABLE OF AUTHORITIES ..................................................................................... v PRELIMINARY STATEMENT ............................................................................... 1 REPLY ARGUMENT ............................................................................................... 2 POINT I THE DIFFERENTIAL THRESHOLDS IMPOSED BY THE 2008 AMENDMENTS VIOLATE THE HOME RULE PROVISIONS OF THE NEW YORK CONSTITUTION, AS THEY BEAR NO REASONABLE RELATIONSHIP TO A SUBSTANTIAL STATE-WIDE CONCERN .................................................................................. 2 A. The language, structure, and legislative history of the 2008 Amendments do not identify a substantial state concern............ 2 B. Even assuming, arguendo, that a substantial state concern exists, the 2008 Amendments do not bear a reasonable relationship to it .......................................................................... 7 C. Plaintiffs have both capacity and standing to raise their meritorious Home Rule challenge ............................................ 15 1. Defendants’ contention that Erie County lacks capacity to raise the Home Rule claim is unpreserved because Defendants expressly disclaimed that argument in their motion to dismiss ............................... 15 2. Defendants’ inaccurate arguments regarding capacity and standing fail on the merits ......................... 17 POINT II DEFENDANTS’ SINGULAR, LIMITED ARGUMENT REGARDING THE SCOPE AND APPLICABILITY OF THE APPRENTICESHIP REQUIREMENTS FAILS, AND THE 2008 AMENDMENTS ARE UNCONSTITUTIONAL, AS DEFENDANTS DO NOT DEFEND THE 2008 AMENDMENTS ON ANY SUBSTANTIVE GROUND ....... 23 - iii - A. Introduction ............................................................................... 23 B. Defendants’ unilateral attempt to rewrite the 2008 Amendments to avoid constitutional infirmities must be rejected, as their interpretation is inconsistent with the plain language of the statute, and eschews the principles governing statutory construction ............................................................................... 24 1. As its plain language states, and its context confirms, Labor Law § 222(2)(e)’s apprenticeship requirements apply to all Wicks Law contracts ................................... 24 2. Labor Law § 222 does not permit contractors without approved apprenticeship programs, and who do not meet the other express requirements, to vicariously satisfy the apprenticeship requirements by signing on to a PLA ................................................... 32 C. Defendants do not address Plaintiffs’ Privileges and Immunities, Commerce Clause, and substantive due process causes of action ............................................................ 35 D. Even assuming, arguendo, that the apprenticeship requirements apply only to PLA opt-out contracting, Plaintiffs are still precluded from all PLA opt-out contacting, and therefore all of Plaintiffs’ causes of action have merit ............................ 36 E. The 2008 Amendments violate the Equal Protection Clause as to the upstate counties, and Plaintiffs have capacity and standing ................................................................ 37 POINT III PLAINTIFFS HAVE STANDING TO BRING A CITIZEN- TAXPAYER CLAIM, AND LABOR LAW § 222(2)(E) VIOLATES STATE FINANCE LAW § 123-B ....................... 39 CONCLUSION ........................................................................................................ 42 - iv - ADDENDUM ADDENDUM A: Excerpts from Defendants’ Trial Court Memorandum below ................................................................................... A-1 ADDENDUM B: Excerpt from Defendants’ Appellate Division Brief below ............................................................................................................ B-1 - v - TABLE OF AUTHORITIES Page CASES Adler v. Deegan, 251 N.Y. 467 (1929) ........................................................................................... 14 Alliance of Am. Insurers v. Chu, 77 N.Y.2d 573 (1991) ......................................................................................... 35 Bingham v. N.Y.C. Transp. Auth., 99 N.Y.2d 355 (2003) ......................................................................................... 15 Black Brook v. State, 41 N.Y.2d 486 (1977) ......................................................................................... 18 Burlington Northern Railroad Co. v. Ford, 504 U.S. 648 (1992) ............................................................................................ 11 Chamber of Commerce v. Pataki, 100 N.Y.2d 801 (2003) ....................................................................................... 39 City of New York v. Patrolmen’s Benevolent Ass’n, 89 N.Y.2d 380 (1996) (“PBA I”) ..............................................2, 3, 4, 5, 6, 10, 11 City of New York v. State, 94 N.Y.2d 577 (2000) ........................................................................................... 6 Cmty Bd. 7 v. Schaffer, 84 N.Y.2d 148 (1994) ................................................................................... 16, 18 Godfrey v. Spano, 13 N.Y.3d 358 (2009) ................................................................................... 40, 41 Golden v. Koch, 49 N.Y.2d 690 (1980) ......................................................................................... 34 Kelley v. McGee, 57 N.Y.2d 522 (1982) ............................................................................. 13, 14, 21 Leader v. Maroney, Ponzini, & Spencer, 97 N.Y.2d 95 (2001) ........................................................................................... 32 - vi - Matter of Blamowski v. Munson Transportation, Inc., 91 N.Y.2d 190 (1997) ......................................................................................... 34 Matter of N.Y.S. Chapter, Inc. v. N.Y.S. Thruway Authority, 88 N.Y.2d 56 (1996) ..................................................................................... 29, 30 McLearn v. Cowen & Co., 60 N.Y.2d 686 (1983) ................................................................................... 16, 17 Misicki v. Caradonna, 12 N.Y.3d 511 (2009) ......................................................................................... 15 Neidle v. Prudential Insurance Co. of America, 299 N.Y. 54 (1949) ............................................................................................. 34 Patrolman’s Benevolent Ass’n v. City of New York, 97 N.Y.2d 378 (2001) (“PBA II”) ................................................................ 2, 3, 4 Rosner v. Metro. Prop. & Liab. Ins. Co., 96 N.Y.2d 475 (2001) ......................................................................................... 32 Saltser & Weinsier, Inc. v. McGoldrick, 295 N.Y. 499 (1946) ........................................................................................... 35 Silver v. Pataki, 96 N.Y.2d 532 (2001) ......................................................................................... 17 Squadrito v. Griebsch, 1 N.Y.2d 471 (1956) ........................................................................................... 31 Wells Fargo Bank Minn., N.A. v. Matropaolo, 42 A.D.3d 239 (2d Dep’t 2007) .................................................................... 17, 37 Wolinsky v. Kee Yip Realty Corp., 2 N.Y.3d 487 (2004) ........................................................................................... 16 CONSTITUTIONAL PROVISIONS N.Y. Const. art. IX, § 3(d)(4) ................................................................................... 21 - vii - STATUTES AND LAWS General Municipal Law § 100-a ........................................................................ 3, 4, 5 Judiciary Law § 183-a .............................................................................................. 13 L. 1996, ch. 13 .......................................................................................................... 4 L. 1998, ch. 641 ......................................................................................................... 4 Labor Law § 222 .............................................................................................. Passim Labor Law § 222(2)(c) ............................................................................................. 27 Labor Law § 222(2)(d) ....................................................................................... 28, 32 Labor Law § 222(2)(e) ..................................................................................... Passim State Finance Law § 123-b ................................................................................ 39, 41 State Finance Law § 123-b(1) .................................................................................. 41 OTHER AUTHORITIES 22 NYCRR § 500.1(f) ................................................................................................. i Arthur Karger, The Powers of the New York Court of Appeals (3d ed. 2005) ....................................................................................................... 15 Assembly Bill No. A9204 (2007) .............................................................................. 3 - 1 - PRELIMINARY STATEMENT Plaintiffs’ opening brief detailed the many reasons why the Appellate Division must be reversed. Defendants offer the Court no good reason to hold otherwise. The Court must conclude that the differential thresholds of the 2008 Amendments were not enacted in furtherance of, and do not bear a reasonable relationship to, a substantial State-wide concern identified in the legislation itself. No legislative history concerning the 2008 Amendments themselves identifies any concerns which motivated the Legislature to act. The statute’s text and structure are equally silent. To fill the void, Defendants turn to executive materials and other statutes, none of which are appropriate sources under this Court’s precedent. Moreover, Defendants’ purported evidence is no evidence at all, as it offers no actual or objective basis for setting the thresholds as the Legislature did. In the end, Defendants’ suggestion that the Court overlook, or disregard, the Court’s stringent and heightened Home Rule precedent to save the differential thresholds must be rejected. That said, given the lack of any legislative basis whatsoever, the differential thresholds are unconstitutional under any standard. Defendants fare no better with their statutory interpretation argument, which seeks to avoid the straightforward conclusion that the apprenticeship requirements of Labor Law § 222 unconstitutionally exclude most minority- and women-owned - 2 - businesses, most small businesses (including both union and non-union contractors), all out-of-state contractors, and all contractors without an approved apprenticeship program. Defendants’ interpretation of Labor Law § 222 relies on two propositions: (i) the statute does not mean what it says; and (ii) to save an unconstitutional statute, courts are free to render statutory text duplicative or ineffectual. Both propositions fail, and Defendants’ statutory argument fails with them. REPLY ARGUMENT POINT I THE DIFFERENTIAL THRESHOLDS IMPOSED BY THE 2008 AMENDMENTS VIOLATE THE HOME RULE PROVISIONS OF THE NEW YORK CONSTITUTION, AS THEY BEAR NO REASONABLE RELATIONSHIP TO A SUBSTANTIAL STATE-WIDE CONCERN A. The language, structure, and legislative history of the 2008 Amendments do not identify a substantial state concern As Defendants concede, the 2008 Amendments are unconstitutional unless they bear a reasonable relationship to a substantial state concern that is identified and articulated in the legislative history of the 2008 Amendments. See Brief for Defendants-Respondents (“Defendants’ Brief”) at 25-28; see also City of New York v. Patrolmen’s Benevolent Ass’n, 89 N.Y.2d 380, 391-93 (1996) (“PBA I”); Patrolmen’s Benevolent Ass’n v. City of New York, 97 N.Y.2d 378, 388-90 (2001) (“PBA II”). The requisite substantial state concern must be found in the language, - 3 - structure, or legislative history of the statute. PBA I, 89 N.Y.2d at 391-93. By exclusively addressing legislative history, Defendants concede that neither the legislative text nor structure of the 2008 Amendments identify or articulate a substantial state concern. The substantial state concern must be stated in the “legislative history of the act in question.” PBA II, 97 N.Y.2d at 388 (emphasis added). Evidence extrinsic to the legislative history of the contested statute cannot establish the requisite substantial state concern. Id. Non-legislative materials, or legislative materials pertaining to statutes other than the 2008 Amendments, are irrelevant. Lacking the requisite evidence for the 2008 Amendments, Defendants instead rely upon (i) the entirely distinct General Municipal Law (“GML”) § 100-a, along with two judicial decisions and an article interpreting it; (ii) an Assembly Record of Proceedings from June 22, 2007 (the “2007 Assembly Record”) regarding Assembly Bill No. A9204 from 2007 (the “2007 Bill”), which was not passed by the Senate and did not become law; and (iii) various executive branch materials. Defendants’ Brief at 28-32. None of these items qualify as legislative history for purposes of Home Rule analysis under PBA I and PBA II. Even if considered, none of these items identify a substantial state concern justifying the discriminatory thresholds. - 4 - GML § 100-a, of course, is simply a declaration of policy relative to the original Wicks Law. It has nothing to do with the differential thresholds established by the 2008 Amendments and is, therefore, irrelevant to the Home Rule analysis. The 2007 Assembly Record and the 2007 Bill are equally irrelevant. Defendants erroneously contend that the failed 2007 Bill is part of the legislative history of the 2008 Amendments, simply because they share certain similarities. The argument fails: the relevant legislative history is that of “the act in question.” PBA II, 97 N.Y.2d at 388. This Court has never relied upon a failed bill distinct from the challenged statute to identify the requisite substantial state concern. The defect is not cured by arguing, as Defendants do, that the 2007 Bill is the “predecessor” of the 2008 Amendments. In PBA I, this Court identified several motivating concerns in the legislative history of chapter 13 of the Laws of 1996 (“chapter 13”), but held that the statute violated Home Rule on other grounds. 89 N.Y.2d at 392-93. In PBA II, this Court examined chapter 641 of the Laws of 1998 (“chapter 641”). 97 N.Y.2d at 386. The Court recognized that prior chapter 13 was the “predecessor statute” of chapter 641. Id. at 389. Critically, however, the Court did not rely upon the concerns identified in chapter 13’s legislative history. Id. Instead, the Court examined chapter 641, not its predecessor statute, to identify a substantial state concern. Id. In other words, this Court has required that - 5 - a statute must withstand judicial scrutiny on its own terms, without reliance on an alleged predecessor statute, let alone predecessor, unenacted legislation. Moreover, as this Court held in PBA I, the identified substantial state concern must have motivated the enactment of the statute in question. 89 N.Y.2d at 392 (“Since chapter 13 itself does not expressly identify any State concern motivating its enactment, we turn to its legislative history.”) (emphasis added). Whatever concerns drove members of the Legislature to draft the 2007 Bill, they did not even motivate its own enactment, much less that of the entirely distinct 2008 Amendments. In sum, GML § 100-a and the 2007 Bill are irrelevant under PBA I and PBA II, and should be disregarded. Neither piece of legislation is the “act in question,” neither identifies a substantial state concern justifying differential thresholds, and, even assuming a state concern was expressed, this Court’s Home Rule precedent confirms that Defendants cannot bootstrap state concerns from other legislation into a statute which has none. Defendants also erroneously rely upon various executive branch materials to establish a substantial state concern. That argument fails for multiple reasons. First, executive branch materials simply do not constitute legislative history for purposes of this Court’s Home Rule analysis under PBA I and PBA II. When examining legislative history for the requisite substantial state concern, this Court - 6 - has always relied upon the legislative memoranda, reports, and debates of the challenged statute. PBA I, 89 N.Y.2d at 392; City of New York v. State, 94 N.Y.2d 577, 590 (2000). Defendants do not attempt to rebut Plaintiffs’ argument on this point. Brief for Plaintiffs-Appellants (“Plaintiffs’ Brief”) at 27. Defendants do not (and cannot) cite a single Home Rule case where this Court has relied upon executive branch materials to identify the requisite substantial state concern. Second, none of the materials Defendants cite (Defendants’ Brief at 29-30 (citing R 330; 331-332, 334, 336, 337-338, 351, 367)) establish a substantial state concern justifying the differential thresholds. Instead, they simply note the proposal for different thresholds. Plainly, a statute’s effect is not synonymous with its justification. Finally, the cited executive branch materials do not even relate to the 2008 Amendments. Almost all were made in reference to the separate, distinct 2007 Bill. In this sense, Defendants compound their erroneous reference to the 2007 Bill by relying on materials yet another step removed from the 2008 Amendments. Even assuming that the Legislature considered them, those executive materials possess no persuasive value. The Legislature ultimately rejected the 2007 Bill, and, by necessary extension, any related executive branch materials or alleged state concerns or justifications identified therein. - 7 - Defendants cannot cite a single item of actual legislative history, i.e., a legislative memorandum, report, debate, or finding, that refers to the 2008 Amendments and identifies a substantial state concern justifying the differential monetary thresholds. B. Even assuming, arguendo, that a substantial state concern exists, the 2008 Amendments do not bear a reasonable relationship to it Defendants argue that the State has a substantial interest in “regulating public works contracts to ensure the procurement of high quality goods and services at the lowest possible cost and guarding the public fisc without imposing undue financial and administrative burdens on local governmental entities.” Defendants’ Brief at 33. However, Defendants fail to demonstrate how the particular and wildly disproportionate monetary thresholds that were actually selected, as opposed to an increase in the Wicks Law threshold generally, are reasonably related to this alleged state concern.1 The 2008 Amendments fail because the differential thresholds bear no reasonable relationship to the purported substantial state concern. 1 Defendants trace the evolution of Wicks Law threshold increases, apparently to demonstrate that the Legislature has periodically increased the triggering thresholds in the past. Defendants’ Brief at 33. However, the increases prior to the 2008 Amendments were across-the- board increases applicable to all counties by means of a general law, not discriminatory increases that treated counties differently. Defendants omit that the 2008 Amendments, for the first time, created differential thresholds in a chaotic, three-tiered scheme. It is these differential thresholds that are at issue, not whether the Legislature may simply increase the Wicks Law threshold generally. - 8 - Defendants claim, in purely conclusory fashion, that the Legislature “reasonably concluded” that it could provide comparable relief throughout the State by adopting different thresholds. Id. at 34. But, Defendants cite no portion of the legislative history (or any document whatsoever) to support that proposition. Id. Instead, Defendants rely solely on an out-of-context quote from the June 2007 Assembly Record for the erroneous proposition that the $500,000 threshold currently applicable to Erie County is “substantial,” because an adjustment of the former $50,000 threshold based on the consumer price index would allegedly have resulted in “a threshold significantly lower than $500,000.” Id. at 33 (citing R 390). The argument is irrelevant. Whether or not the $500,000 threshold is or is not “substantial” misses the point, because the Home Rule violation is focused on the discriminatory and disparate treatment by the three-tiered thresholds, without justification. The question here is not whether there is a Home Rule violation if the standard was uniformly raised to $500,000. Rather, it is whether there is a reasonable relationship between the discriminatory thresholds selected and the substantial state interest. There is none. As set forth above, the 2007 Assembly Record is doubly irrelevant, because it is not the legislative history of the 2008 Amendments. In any event, Defendants’ - 9 - citation does not support its point, as is made clear by the next speaker in the 2007 Assembly Record: [n]ow, when you say, if you adjust on inflation, some of the information I have is that if you just added purely on inflation since the original threshold of $25,000, not $50,000, but the original threshold…if you had just raised that by an inflation adjustment, that threshold would be well over $1 million.... R 390-91 (statement of Assemblyman Kolb) (emphasis added). The $500,000 threshold does not even cover inflation, much less relieve the Wicks Law’s financial and administrative burdens, waste of taxpayer dollars, and drain on the fisc. Defendants, unable to point to any consideration of, justification for, or basis for the differential thresholds in the 2008 Amendments or its legislative history, invite the Court to rewrite its Home Rule jurisprudence, and step back from PBA I and PBA II by applying Equal Protection rational basis review instead of the more stringent Home Rule analysis. The Court should decline the invitation. The existence of an actual substantial state interest that is articulated in the statute’s text, structure, or legislative history does not bring the heightened standard set forth in PBA I and PBA II to an end when the Court examines the reasonable connection between legislation and the substantial state interest. Defendants’ Brief at 34. To the contrary, this Court has held that the Equal Protection rational basis standard is not appropriate in the Home Rule context, as it - 10 - would fail to properly balance the sensitive State and local interests involved. PBA I, 89 N.Y.2d at 389. A statute is reasonably related to an identified substantial state concern only if the statute actually advances and can accomplish the substantial state concern. Id. at 393. This level of review for the relationship between the statute and the substantial state concern goes well beyond rational basis review. Contrary to Defendants’ claims, the statute does not provide “comparable relief” throughout the State, and no actual explanation of the justification for the differential thresholds was put forth by the Legislature, or posited by Defendants. Defendants’ Brief at 34. Apart from the lack of any justification whatsoever, an examination of the differential thresholds confirms that they are not only discriminatory, and not grounded in any objective factor or reality, but are nonsensical. As one example, the 2008 Amendments impose the lower $500,000 threshold upon Dutchess County, but confer upon Westchester County a threshold three times that amount, despite the fact that Dutchess County has identical, and sometimes higher costs of construction. Plaintiffs’ Brief at 34-35.2 The alleged 2 The exclusion of Dutchess County from the proper classification is entirely relevant to the harm wrought upon Erie County by the 2008 Amendments, as that unjustified classification confirms that the 2008 Amendments are not reasonably related to a substantial state concern, and therefore, that the 2008 Amendments do not satisfy the substantial state interest exception. Accordingly, Erie County’s local affairs were affected by an invalidly enacted special law absent a Home Rule message, in contravention of, and injuring, Plaintiffs’ constitutional Home Rule rights. - 11 - “relief” is not only not reasonably related to any substantial state concern, but turns the concept on its head. Defendants’ reliance on Burlington Northern Railroad Co. v. Ford, 504 U.S. 648, 653 (1992), is misplaced, as that is not a Home Rule case. In PBA I and PBA II, this Court explicitly eschewed reliance in the Home Rule context on Equal Protection rational basis review of the type involved in Burlington. At any rate, even one misclassification is sufficient to render the 2008 Amendments irrational, and not reasonably related to the alleged substantial state concern. For example, this Court held that the act at issue in PBA I was unconstitutional because it could not achieve the proffered state concern of uniformity in impasse procedures. 89 N.Y.2d at 393. Here, the state concern alleged by Defendants is to relieve every county in New York from the burdens imposed by the Wicks Law, and to provide comparable relief to all. Even one misclassification defeats those universal goals, a failure that was caused by unjustified, and even irrational, classifications based on county names alone, rather than objective criteria. Defendants’ argument that there need not be mathematical precision in the relationship between the tiered thresholds and the alleged regional differences in construction costs is beside the point. Plaintiffs have never argued that these, or any, thresholds must be a fixed multiple of costs, that there must be a “formula,” or - 12 - that a “three-fold increase in labor costs should result in a three-fold increase in the [Wicks Law threshold].” Defendants’ Brief at 34-35, 37. But, as this Court confirmed in PBA I and PBA II, the classification must still be reasonably related to the alleged substantial state concern. That inquiry necessarily requires some consideration of the numbers chosen. Here, the Legislature did not use any precision, did not establish any relationship, did not offer any justification, and did not provide a single word explaining how it set the differential thresholds. While the Court need not – and indeed may not – consider concerns beyond those expressed in the statute’s text, structure, and legislative history, doing so does not even assist Defendants. At most, the actual difference between construction costs in New York City and Erie County is a factor of two. Plaintiffs’ Brief at 35-36. While that does not necessarily mean that the relationship between the thresholds must also be a factor of two, the six-fold difference in the 2008 Amendments’ thresholds confirms that the 2008 Amendments are not aimed at “comparable relief.” Defendants also recite the general presumption that the Legislature has investigated and found facts necessary to support the legislation at issue, but fail to address or rebut, and therefore concede, Plaintiffs’ argument rebutting that presumption – namely, that the Legislature undertook no such investigation and made no such findings. Id. at 31. The Legislature’s failure to do so properly led - 13 - the dissenting justices below to conclude that the monetary thresholds, severed from any objective indicator, or any factual or evidentiary support whatsoever, were purely arbitrary. R at 427-28. Ultimately, the 2008 Amendments’ discriminatory effect, and lack of any reasonable relationship to any substantial state interest, is made clear by the law’s designation of the differential thresholds by specific county name alone, rather than by any objective criteria, such as the average cost of construction in each county. That is why Defendants’ reliance on Kelley v. McGee, 57 N.Y.2d 522, 540 (1982) is misplaced. In Kelley, the alleged substantial state concern was the adequate compensation of district attorneys. Id. at 538-40. Judiciary Law § 183-a created four salary tiers, and classified counties into these four tiers based on objective county population data. Id. This Court held that the classification (population size) was reasonably related to the state purpose of adequately compensating district attorneys, because a larger population required district attorneys to perform more work. Id. at 540. That classification was reasonable because counties were not only classified objectively, but a county’s classification could adjust with changes in population. - 14 - In other words, the salaries of district attorneys would increase or decrease as the population (the basis for their higher or lower salary) increased or decreased.3 In contrast, the 2008 Amendments classify counties based on name alone. Rather than, for example, increasing the Wicks Law threshold to $3 million for all counties where the average cost of construction exceeds a certain index, the 2008 Amendments simply confer a discriminatory benefit upon the downstate counties at the expense of Erie County and the rest of the upstate counties. Unlike in Kelley, where the salaries could, over time, change along with changes in population (the underlying basis justifying the salary level), the differential thresholds here cannot adjust with changes in the relative costs of construction (the alleged justification for the Wicks Law threshold levels). Simply put, a classification that is completely unaffected by changes in the alleged underlying justification for that classification is neither reasonable nor related to the alleged state purpose. 3 Home Rule case law does not accord New York City any automatic, required, or special preference or treatment that Defendants suggest and speculate, in passing, may exist. Defendants’ Brief at 35. While some older decisions, pre-dating PBA I and PBA II, have suggested that New York City might reasonably receive different treatment, those suggestions were based on a reasonable relationship between a state concern and New York City’s higher population, not alleged regional differences in construction costs. See Adler v. Deegan, 251 N.Y. 467 (1929). The cases do not provide any present basis for the differential treatment here, given the lack of any articulated justification for it (based on population or otherwise). Of course, even a purported New York City preference would not justify the differential treatment Erie County received compared to the preferential treatment conferred upon the Nassau, Suffolk, and Westchester counties. - 15 - C. Plaintiffs have both capacity and standing to raise their meritorious Home Rule challenge 1. Defendants’ contention that Erie County lacks capacity to raise the Home Rule claim is unpreserved because Defendants expressly disclaimed that argument in their motion to dismiss In their brief, Defendants contend for the first time that Erie County lacks capacity to pursue the Home Rule claim. Defendants’ Brief at 39-42. In a footnote, Defendants offer three reasons why this argument is preserved: (i) it appears in their answer; (ii) they moved to dismiss the complaint on the basis of “standing,” by which they meant “standing and capacity”; and (iii) when rejecting their standing argument, the Appellate Division cited a “capacity case.” Id. at 42 n.6. The first and third reasons are irrelevant; the second is inaccurate. This Court will not address issues not raised before the trial court, save in exceptional circumstances. Bingham v. N.Y.C. Transp. Auth., 99 N.Y.2d 355, 359 (2003); see also Arthur Karger, The Powers of the New York Court of Appeals 589-90 (3d ed. 2005). The reason is two-fold. First, fairness demands that parties have an opportunity to respond to their opponents’ arguments. Bingham, 99 N.Y.2d at 359. Second, the Court itself benefits from lower courts’ analysis of the issues. Id. at 360. Thus, this Court “limit[s] its review to issues that have first been presented to and carefully considered by the trial and intermediate appellate courts.” Id. at 359 (emphasis added); Misicki v. Caradonna, 12 N.Y.3d 511, 519 (2009) (same). - 16 - On a motion to dismiss, only those grounds advanced in the motion papers are “presented” to or “considered by” the trial court, and thereby preserved for appellate review. In McLearn v. Cowen & Co., 60 N.Y.2d 686 (1983), for example, the Court reversed the Appellate Division’s order granting a motion to dismiss for failure to state a claim when “[the defendant]’s motion was expressly based on…res judicata.” Id. at 689. Likewise, in Wolinsky v. Kee Yip Realty Corp., 2 N.Y.3d 487 (2004), the Court noted that an argument not raised in the defendant’s summary judgment motion was unpreserved. Id. at 490-91 & n.2. Defendants’ three rationales wilt under this Court’s preservation jurisprudence. The content of Defendants’ answer is immaterial. Only Defendants’ motion papers presented arguments that the Trial Court was able to carefully consider, and to which Plaintiffs had a fair opportunity to respond. Springing an alleged affirmative defense that has never been raised or considered before the Trial Court or Appellate Division is the antithesis of this Court’s preservation jurisprudence. Defendants contend that their motion papers raised capacity by referring to “standing,” which they now claim meant “standing and capacity.”4 In truth, 4 To the contrary, this Court has consistently recognized capacity and standing are completely distinct concepts, and that a reference to the one does not include the other. Cmty Bd. 7 v. Schaffer, 84 N.Y.2d 148, 154 (1994) (“We note at the outset that the concept of capacity is often confused with the concept of standing, but the two legal doctrines are not interchangeable.”) (emphasis added). - 17 - Defendants argued “standing” and “capacity” as entirely distinct concepts: “Erie County lacks standing to bring the Home Rule claim…and lacks capacity…with respect to all other claims.” Defendants’ Memorandum of Law in Support of Motion to Dismiss Complaint (“Defendants’ Trial Court Memorandum”) at 56 (emphasis added).5 Thus, the capacity defense was argued as to all claims except the Home Rule claim. Defendants cannot retroactively change the content of their Trial Court motion papers by characterizing an unspecified case in the Appellate Division’s opinion as a “capacity case.” On the Home Rule claim, Defendants objected only to Erie County’s standing, not its capacity, and the Appellate Division limited its opinion accordingly – indeed, it was powerless to do otherwise (see McLearn, 60 N.Y.2d at 689). Therefore, Defendants’ argument that Erie County lacks capacity to raise the Home Rule claim is unpreserved, and the Court must disregard it. 2. Defendants’ inaccurate arguments regarding capacity and standing fail on the merits Contrary to Defendants’ inaccurate arguments, “[s]tanding and capacity to sue are related, but distinguishable, legal concepts.” Wells Fargo Bank Minn., N.A. v. Matropaolo, 42 A.D.3d 239, 242 (2d Dep’t 2007) (citing Silver v. Pataki, 5 Excerpts from Defendants’ Trial Court Memorandum, demonstrating that Defendants argued capacity and standing as distinct concepts, and did not argue capacity as to the Home Rule claim, are attached as Addendum A, beginning at A-1. Although not part of the Record on Appeal, these pages were part of the original file, in that they were filed with the Trial Court below. The Court can and should take judicial notice of their content. - 18 - 96 N.Y.2d 532, 537 (2001)); Cmty. Bd. 7 v. Schaffer, 84 N.Y.2d 148, 154-55 (1994)). Although both are components of a party’s authority to sue, “capacity requires an inquiry into the litigant’s status, i.e., its power to appear and bring its grievance before the court, while standing requires an inquiry into whether the litigant has an interest in the claim at issue in the lawsuit.” Id. (emphasis added) (citations omitted) (internal quotation marks omitted). The capacity determination does not involve the complicated analysis Defendants urge.6 This Court has clearly answered the capacity question in the affirmative: political subdivisions, as a rule, have capacity to sue the state “when an act of the State Legislature is alleged to have encroached upon the powers of a locality in violation of the home rule article.” Black Brook v. State, 41 N.Y.2d 486, 487-89 (1977) (emphasis added) (requiring mere “contention” that statute violated Home Rule). Here, Erie County alleges a violation of its Home Rule power, and therefore has capacity to sue the State on that basis. That is the extent of the “capacity” inquiry. Plaintiffs also clearly have common-law standing to challenge the Legislature’s constitutional violation of Home Rule. First, Plaintiffs have more than adequately demonstrated an injury-in-fact by alleging a violation of their 6 Indeed, Defendants’ “capacity” arguments actually address the “standing” issue – namely, whether the State has interfered in Erie County’s local affairs, thereby injuring Erie County’s constitutional right to Home Rule. Defendants’ attempt to cast an additional argument related to “standing” under the guise of “capacity” should be rejected. - 19 - constitutional rights under the Home Rule provision. R 30-32, 56; Plaintiffs’ Brief at 19 (“Plaintiff County of Erie never submitted a Home Rule message that requested the Legislature to interfere with its Home Rule through adoption of a special law.”). Here, the Legislature interfered with the property, affairs, and government of Erie County by altering the Wicks Law threshold applicable to Erie County. R 30- 32. The Legislature did so by passing the 2008 Amendments, a special law that applied differently in terms and in effect to different counties. Id. Erie County did not ask the Legislature to interfere with its Wicks Law threshold by means of a special law, nor did Erie County submit a Home Rule message permitting the Legislature to do so. Id. This violation of Erie County’s constitutional rights is a valid and sufficient injury-in-fact. Moreover, Plaintiffs’ injury – the Legislature’s interference with Erie County’s affairs, property, and government through an invalidly enacted special law – obviously falls within the “zone of interests” protected by the Home Rule provisions. Erie County also seeks the relief necessary to address this constitutional injury – invalidation of the 2008 Amendments. R 30-32, 56; Plaintiffs’ Brief, passim. Defendants even concede the point. Defendants’ Brief at 43 (“Erie County affirmatively seeks the invalidation of the 2008 Amendments.”). Plaintiffs’ Home Rule rights are vindicated whether the Court strikes down the - 20 - 2008 Amendments entirely or, as Defendants suggest ( Defendants’ Brief at 43), the Court excises those parts of the 2008 Amendments that give certain counties special benefits, thereby subjecting all counties to the same threshold under what would then become a general law. Defendants also claim that Erie County was not “affected” by the 2008 Amendments, in that the statute simply adopted a special rule for eight counties, and “left the projects of the remaining governmental entities subject to the generally applicable threshold.” Defendants’ Brief at 40-41. That claim is inaccurate. Prior to the 2008 Amendments, every county, including Erie County, was subject to the uniform and “generally applicable threshold” of $50,000. The 2008 Amendments did not leave Erie County subject to that “generally applicable threshold.” Instead, the statute changed the threshold applicable to Erie County from $50,000 to $500,000; it also changed the threshold applicable to Suffolk, Westchester, and Nassau Counties from $50,000 to $1.5 million, and changed the threshold for New York City from $50,000 to $3 million.7 Defendants’ 7 No matter the degree to which Defendants mischaracterize the 2008 Amendments, this is simply not a case where Erie County is challenging a statute that affected only one county, or only some county other than Erie County. The 2008 Amendments affected every county in New York, including Erie County, but in differential terms and effects, so as to constitute a special law requiring a Home Rule message from Erie County. And despite Defendants’ mischaracterization of Plaintiffs’ arguments, Plaintiffs challenge the effect of the 2008 Amendments on Erie County, and the unconstitutional absence of a Home Rule message from Erie County. - 21 - unsupported argument that the 2008 Amendments “affected” New York City and its immediate suburbs, but not Erie County, should be rejected. Finally, Defendants advance several meritless arguments under the erroneous label “capacity.” First, Defendants claim that “all of the home rule challenges this Court has previously considered were brought by plaintiffs allegedly aggrieved by provisions that singled them out, rather than parties who were dissatisfied by the widely applicable treatment from which others were excepted.” Defendants’ Brief at 41. That claim is inaccurate. In Kelley v. McGee, 57 N.Y.2d 522, 537-38 (1982), three counties raised a Home Rule challenge against a statute that did not “single out” any one of them, but rather classified all of the various counties in New York State into four tiered thresholds (related to district attorney salaries). Although the statute did not single out any one county, the Court effectively conceded that it was a special law that violated the Home Rule provisions, but ultimately denied the challenge on a different ground. Id. Defendants’ argument misrepresents the constitutional definition of a special law, which is “[a] law which in terms and in effect applies to one or more, but not all, counties….” N.Y. Const. art. IX, § 3(d)(4) (emphasis added). There is no requirement that a county be “singled out.” Second, Defendants argue that requiring Home Rule messages from all fifty- four counties of the State would “impose an infeasible and unnecessary burden on - 22 - the Legislature.” Defendants’ Brief at 41. That contention fails. Initially, what Defendants really argue is that the Legislature simply prefers not to put in the work necessary to comply with the constitutional procedures imposed by the Home Rule provisions. That argument is unsettling, to say the least. The Home Rule provisions confer upon counties a constitutional right to be free from special laws affecting their local affairs. To overcome this barrier, the Legislature must obtain Home Rule messages from the affected counties. If the Legislature desires to interfere with the Home Rule rights of many counties, then it must obtain many Home Rule messages. Doing so may be difficult, but that is the price of bypassing the New York Constitution’s Home Rule provision. Whatever burden the State bears is commensurate with the level of State intrusion. If a massive encroachment on Home Rule was truly necessary in a matter involving a substantial state interest, then the Governor could issue an emergency certificate of necessity, or the substantial state interest exception might apply. In any event, the issue here is much simpler: Defendants failed to obtain any Home Rule messages. - 23 - POINT II DEFENDANTS’ SINGULAR, LIMITED ARGUMENT REGARDING THE SCOPE AND APPLICABILITY OF THE APPRENTICESHIP REQUIREMENTS FAILS, AND THE 2008 AMENDMENTS ARE UNCONSTITUTIONAL, AS DEFENDANTS DO NOT DEFEND THE 2008 AMENDMENTS ON ANY SUBSTANTIVE GROUND A. Introduction Defendants do not attempt to defend the apprenticeship requirements of Labor Law § 222 on any substantive ground. Instead, Defendants claim only that the statute does not mean what its plain language says, and that this Court should rewrite an unconstitutional statute. The plain language of Labor Law § 222(2)(e)(second sentence) (the “Second Sentence”) requires that every contractor satisfy three distinct apprenticeship requirements on all Wicks Law contracting. These three requirements – the contractor’s participation in a New York State approved apprentice training program, the contractor’s graduation of an apprentice from such program within a specific timeframe, and the contractor’s current enrollment of an apprentice in such program (collectively, the “apprenticeship requirements”) – exclude most contractors from significant public works projects in New York. If the Court rejects Defendants’ statutory argument, it must find that the 2008 Amendments are unconstitutional, as Defendants offer no substantive defense - 24 - of the statute, and do not even attempt to dispute Plaintiffs’ briefing on the substantive issues. B. Defendants’ unilateral attempt to rewrite the 2008 Amendments to avoid constitutional infirmities must be rejected, as their interpretation is inconsistent with the plain language of the statute, and eschews the principles governing statutory construction 1. As its plain language states, and its context confirms, Labor Law § 222(2)(e)’s apprenticeship requirements apply to all Wicks Law contracts Labor Law § 222(2)(e)(second sentence) clearly and unequivocally provides that its apprenticeship requirements apply to “any contract for construction” subject to the Wicks Law thresholds. R 151. Unlike the Second Sentence, Labor Law § 222(2)(e)(first sentence) (the “First Sentence”) is limited to “project[s] undertaken pursuant to this section [Project Labor Agreements] . . . .” R 150. In an attempt to defeat that plain text, Defendants argue that the Second Sentence simply modifies the First Sentence, and, inexplicably, that the Second Sentence is therefore constrained by language (found only in the First Sentence) limiting the First Sentence to project labor agreements (“PLAs”). To inject ambiguity where none exists, Defendants ask this Court to ignore the plain language of the statute, render entire phrases of Labor Law § 222 superfluous and meaningless, and otherwise violate the rules of statutory construction. The text, structure, and context of Labor Law § 222(2)(e) confirm - 25 - that the Second Sentence does not simply modify the First Sentence, but instead is an independent provision. Defendants acknowledge, as they must, that the Second Sentence’s phrase “any contract” does not state “any PLA contract,” but urge the Court to imply this limitation, on the ground that the Legislature somehow implicitly meant the Second Sentence to incorporate the limiting clause “pursuant to this section” found in the First Sentence. Defendants’ Brief at 48-49. Yet again, Defendants are undone by the words on the page. Three clauses define the First Sentence’s application. That sentence applies only to (i) “[a]ny contract, subcontract, lease, grant, bond, covenant, or other agreement” for (ii) “construction, reconstruction, demolition, excavation, rehabilitation, repair, renovation, alteration, or improvement,” with respect to (iii) a “project undertaken pursuant to this section.” Labor Law § 222(2)(e)(first sentence). If the Legislature intended the Second Sentence to implicitly incorporate all of these definitions, it would not need to repeat any of them in the Second Sentence. But it repeated one of the definitional clauses, but not others, and not the crucial limitation to PLAs. Both sentences identically involve agreements for “construction, reconstruction, demolition, excavation, rehabilitation, repair, renovation, alteration, or improvement.” Id. § 222(2)(e). The Second Sentence does not, on the other hand, repeat the First Sentence’s string - 26 - of agreement-related terms (“contract, subcontract, lease, grant, bond, covenant, or other agreement”), instead referring only to “any contract.” Id. § 222(2)(e)(second sentence). Nor does it repeat “pursuant to this section.” Thus, when it drafted the Second Sentence, the Legislature used one of the First Sentence’s descriptions as to types of actual work, but purposefully omitted other terms and limitations. “Pursuant to this section” was omitted, and Defendants’ attempt to resurrect it and read it into the Second Sentence cannot be reconciled with this textual proof of the Legislature’s precise choices. Nor does the word “further” authorize the Court to selectively incorporate “pursuant to this section” into the Second Sentence. Instead, the word “further” refers to the general Wicks Law requirements applicable to all Wicks Law projects, which are referenced internally within the Second Sentence. The Second Sentence states: With respect to any contract for construction, reconstruction, demolition, excavation, rehabilitation, repair, renovation, alteration, or improvement in excess of three million dollars in the counties of the Bronx, Kings, New York, Queens, and Richmond; one million five hundred thousand dollars in the counties of Nassau, Suffolk and Westchester; and five hundred thousand dollars in all other counties within the state; the entity shall further require that each contractor [summarizing the apprenticeship requirements]. Id. - 27 - The structure of the Second Sentence, therefore: (i) sets out an introductory phrase demarcating the scope of agreement type and subject-matter type to which it applies; (ii) applies itself to projects in excess of the differential thresholds – i.e., to Wicks Law projects; (iii) by this reference to the Wicks Law, necessarily refers to the general requirements imposed on all Wicks Law projects; and (iv) requires that, in addition to these general requirements applicable to all Wicks Law contracts, the public entity shall “further” satisfy the apprenticeship requirements. Therefore, the word “further” expands upon the general Wicks Law requirements implicated by the Second Sentence’s citation to the Wicks Law thresholds, not the unrelated requirements set forth in the independent First Sentence. Properly interpreted, the Second Sentence provides that, in addition to soliciting separate bid specifications for the separate prime contracts, managing the separate prime contracts, maintaining oversight of construction, coordinating the construction schedule, and resolving contract disputes,8 the public entity shall “further require” that each contractor satisfy the apprentice training program requirements – participation, graduation, and enrollment. Other subsections of Labor Law § 222 demonstrate that the Legislature knew how to make a sentence apply to several types of agreements when it wanted to (Labor Law § 222(2)(c)), and that the Legislature knew how to, and did, make a 8 Defendants concede that all Wicks Law contracting generally imposes these requirements on the public entity. Defendants’ Brief at 8. - 28 - subsection applicable to contracts beyond and without limitation to a PLA (Labor Law § 222(2)(d) (provisions apply to all contracts entered into, with no limitation to those entered into pursuant to PLAs)). For example, the first sentence of Labor Law § 222(2)(d) begins with an introductory phrase that demarcates its scope. Labor Law § 222(2)(d)(first sentence) applies to “[e]very contract entered into by any agency, board, department, commission or officer of the state of New York, or any political subdivision thereof, municipal corporation, public benefit corporation or local or state authority.” The second sentence of Labor Law § 222(2)(d) begins with “[i]n addition, every such contract shall….” (emphasis added).9 In other words, where the Legislature intended a second sentence of a subsection to relate to, and import the definitional provisions of, the preceding sentence, the Legislature knew how to express that intent clearly and unambiguously. The Legislature did not express such intent with respect to the second sentence of Labor Law § 222(2)(e), but rather it made clear that the Second Sentence and First Sentence apply differently in terms and scope, are separate, and that the Second Sentence is not limited by the First Sentence.10 9 Defendants contend that comparisons to Labor Law § 222(2)(d) are unpersuasive, because that sub-section has not received extensive interpretive treatment. No prior interpretive treatment is necessary to recognize the obvious textual and structural differences between Labor Law §§ 222(2)(d) and 222(2)(e). 10 Defendants argue that consideration of the structure of Labor Law § 222(2)(d) is not persuasive because that sub-section is “not at issue here.” Defendants’ Brief at 51. - 29 - The Legislature had good reason to give the two sentences varying applicability; their subject-matter is completely unrelated, and they are intended to accomplish entirely different goals. The First Sentence requires the public entity to consider the contractor’s financial and organizational capacity, its record of performance, its history of compliance with labor standards, and its work with minority- and women-owned businesses. Labor Law § 222(2)(e)(first sentence). These “due diligence” recording requirements derive from Matter of N.Y.S. Chapter, Inc. v. N.Y.S. Thruway Authority, 88 N.Y.2d 56 (1996), where this Court held: [a]s applied particularly to PLAs, which are clearly different from typical prebid specifications in their comprehensive scope, more than a rational basis must be shown. The public authority’s decision to adopt such an agreement for a specific project must be supported by the record; the authority bears the burden of showing that the decision to enter into the PLA had as its purpose and likely effect the advancement of the interests embodied in the competitive bidding statutes. Curiously, Defendants elsewhere argue that this Court should consider the “context” of the statute to interpret the Second Sentence of Labor Law § 222(2)(e). In other words, Defendants take the position that this Court should consider “context,” but only when it suits Defendants’ purpose. When the context demonstrates that other subsections of Labor Law § 222 apply to all Wicks Law contracting and not just PLA opt-outs, and that the Legislature purposefully used differential terms within the section to apply to different kinds of construction projects, thereby confirming Plaintiffs’ interpretation, Defendants claim that those portions of the statute are “not at issue.” Defendants cannot have it both ways – the context of the section’s language, inasmuch as it reveals the Legislature’s purposeful use of differential language both within the section and subsection, is relevant. - 30 - Id. at 68-69 (emphasis added). The purpose of the First Sentence, therefore, is to comply with the recording requirements that this Court imposed in Thruway. The Legislature logically limited the First Sentence (only) to PLAs, because the Thruway record requirements apply only to PLAs. The substance and applicability of the Second Sentence, however, is entirely different. Not only are the apprenticeship requirements of the Second Sentence completely unrelated to the due diligence requirements of the First Sentence, the purpose of imposing the apprenticeship requirements applies to all Wicks Law contracting, whereas the utility of the due diligence requirements applies only to PLAs. In other words, the apprenticeship requirements were ostensibly intended to increase the number and training of skilled workers on a construction project, a goal equally applicable to both Wicks multi-prime and PLA opt-out projects. Accordingly, the Legislature did not restrict the Second Sentence and its apprenticeship requirements to PLAs, but broadly applied those requirements to “any contract” applicable to the Wicks Law. The only sensible interpretation is that the Legislature purposefully defined the scope and applicability of the First and Second Sentences of Labor Law § 222(2)(e) differently, because the two sentences are separate and distinct provisions that impose distinct requirements, applicable to distinct situations, to accomplish different goals. The Second Sentence, therefore, stands on its own, is - 31 - not simply a continuation of the First Sentence, and is not bound by the First Sentence’s limitation to PLAs. Defendants argue that the section heading of Labor Law § 222 limits every sentence within that section to PLAs. Defendants’ Brief at 48-49. That interpretation is unavailing, for multiple reasons. First, there is no need to resort to the section heading because there is no ambiguity in the meaning of “any contract” in the Second Sentence. The text of the Second Sentence, which trumps the section heading, does not contain any limiting language. Instead, the broad and plain language applies the apprenticeship requirements to “any” contract exceeding the Wicks Law thresholds. As demonstrated above, the Second Sentence, as intentionally defined and applied, is independent of the First Sentence. The text of the First Sentence, therefore, cannot create the ambiguity necessary to permit consideration of the section heading. Nor can reference to the section heading itself create the necessary ambiguity. Squadrito v. Griebsch, 1 N.Y.2d 471, 475 (1956). Second, using the heading as Defendants suggest would nullify at least thirty-two words of the statutory text. If the section heading alone resolved the issue for every sentence in the section, then the phrase (or substantially similar phrase) “[w]ith respect to each project undertaken pursuant to this section” in some sentences – but not others – would be unnecessary and meaningless. A statutory - 32 - interpretation that would render key portions of a statute superfluous must be rejected. Leader v. Maroney, Ponzini, & Spencer, 97 N.Y.2d 95, 104 (2001); Rosner v. Metro. Prop. & Liab. Ins. Co., 96 N.Y.2d 475, 479 (2001). If those phrases are to retain any meaning, then they must be interpreted as necessary to identify the sentences that are limited to PLAs. Sentences without those restrictive phrases necessarily face no such limitation. Third, Defendants’ argument is inconsistent with Labor Law § 222(2)(d). As noted above, that subsection’s first sentence applies to “any contract entered into by any [governmental entity].” Labor Law § 222(2)(d) (emphasis added). The very next sentence is expressly limited to PLA contracts, confirming that the preceding sentence applies more broadly. Id. Plainly, then, the heading does not exert the limiting force Defendants ascribe to it. Therefore, Labor Law § 222(2)(e)(second sentence) applies to all Wicks Law contracts. 2. Labor Law § 222 does not permit contractors without approved apprenticeship programs, and who do not meet the other express requirements, to vicariously satisfy the apprenticeship requirements by signing on to a PLA Defendants’ argument that contractors do not need their own approved apprenticeship programs, but can satisfy the apprenticeship requirements by signing on to a PLA (Defendants’ Brief at 52), likewise fails. Defendants rely entirely upon the erroneous statutory interpretation found in the two Department of Labor (“DOL”) opinion letters. Defendants, however, do not even attempt to - 33 - rebut, and therefore concede, Plaintiffs’ arguments demonstrating that the DOL opinions are faulty, irrelevant, and entitled to no deference (Plaintiffs’ Brief at 52- 55). Defendants’ interpretation also completely ignores the other two apprenticeship requirements. Again, Defendants do not even attempt to rebut, and therefore concede, Plaintiffs’ argument on this point. Id. at 50-51. In addition to “participation” in an apprenticeship program, the Second Sentence also requires that “each contractor…shall have graduated at least one apprentice in the last three years,” and that “each contractor…shall have at least one apprentice currently enrolled in such apprentice training program.”11 “Each contractor” cannot graduate at least one apprentice, and “each contractor” cannot enroll an apprentice, without its own apprentice training program. Defendants’ interpretation reads these two requirements out of the statute and must therefore be rejected. Defendants’ remaining arguments are without merit. Defendants contend, in purely conclusory fashion, that the word “participate” “does not usually mean 11 Defendants also fail to address or rebut Plaintiffs’ argument that the phrases “shall have graduated…” and “shall have at least one apprentice currently enrolled….” refer to duties required of each contractor, not merely adjectives describing the apprentice training program in which contractors must participate. Plaintiffs’ Brief at 51. When the Legislature wanted to describe the apprenticeship program, it used the word “that,” i.e., “apprenticeship training programs…that have been approved [for three years].” Labor Law § 222(2)(e)(second sentence) (emphasis added). When the Legislature prescribed the duties of each contractor, it used “shall,” i.e., the contractor “shall participate,” “shall have graduated [an apprentice],” and “shall have [an apprentice] currently enrolled.” Id. In other words, each contractor must satisfy three independent requirements, not simply participate in an apprentice training program that has two additional specific attributes. - 34 - ‘maintain’ or ‘establish’.” Defendants’ Brief at 53. Of course, Defendants offer no support or explanation for that contention,12 nor is Defendants’ interpretation consistent with the Second Sentence’s alleged “express legislative intent” to create opportunities for minority apprentices. In truth, it is entirely at odds with it. That intent, if any, was to increase the total number of apprenticeship programs, and, by extension, the total number of opportunities for apprentices and minority apprentices. Defendants fail to explain how the statute furthers that intent when contractors (i) do not need to establish or maintain an apprentice program of their own; (ii) do not need to interact with or train any apprentices; and (iii) have no direct role whatsoever with an apprentice program, but instead merely sign on to a PLA that involves a separate, preexisting apprentice program. In other words, under Defendants’ interpretation, the contractor does nothing. That is not “participation” in any sense of the word. 12 This Court has held that the word “participate” connotes a level of personal involvement absent from Defendants’ construction of the term. In Matter of Blamowski v. Munson Transportation, Inc., 91 N.Y.2d 190 (1997), for example, the Court held that the respondent did not “participate” in the arbitration process by sending approximately six letters to the American Arbitration Association. Id. at 196. In Neidle v. Prudential Insurance Co. of America, 299 N.Y. 54 (1949), the Court wrote that an insurance benefit payable if the insured died while “participating in military service in time of war” might not apply if the insured had died on furlough, rather than on the battlefield. Id. at 57. When construing a charter provision prohibiting the Mayor of New York City from “participat[ing] in any action or vote of the board of estimate on the budget,” the Court rejected a sweeping definition of “participation,” concluding that this clause meant only that the Mayor could not personally approve the original budget. Golden v. Koch, 49 N.Y.2d 690, 693, 694 (1980). - 35 - Finally, the “rule of constitutional avoidance” is not the panacea Defendants claim. That rule of statutory construction applies only where the Court may select from among permissible interpretations. Saltser & Weinsier, Inc. v. McGoldrick, 295 N.Y. 499, 509 (1946) (holding that constitutional interpretation must be “fairly possible”); Alliance of Am. Insurers v. Chu, 77 N.Y.2d 573, 585 (1991) (holding that court must avoid unconstitutional interpretation “if such a construction can be avoided”). Where, as here, the alternative to an unconstitutional interpretation requires the Court to violate the rules of statutory construction, the Court has reached the limit of its authority. Defendants’ interpretation ignores plain meaning, rewrites the word “participate” to mean “do nothing,” reads the independent graduation and enrollment requirements out of the statute, renders other statutory language meaningless, frustrates the alleged intent to increase opportunities for minority apprentices, and otherwise violates the rules of statutory interpretation. The Legislature enacted an unconstitutional statute, and there is simply no permissible constitutional interpretation for this Court to select or save. C. Defendants do not address Plaintiffs’ Privileges and Immunities, Commerce Clause, and substantive due process causes of action Defendants have offered no substantive defense of the discriminatory and exclusionary impact of the 2008 Amendments’ apprenticeship requirements. Defendants do not cite a single case in opposition to Plaintiffs’ Privileges and Immunities, Dormant Commerce Clause, and substantive due process claims. - 36 - Defendants do not rebut, and therefore concede, that the right to work remains a fundamental right in New York, and that the 2008 Amendments must therefore survive strict scrutiny. Plaintiffs’ Brief at 58-62. Defendants’ arguments, which focused exclusively on statutory interpretation, fail to address the harm caused by Labor Law § 222. Defendants ignore the minority- and women-owned contractors, the small businesses, the out- of-state contractors, and all businesses without an approved apprentice training program (both union and non-union), which either cannot afford or cannot obtain approval for an apprentice training program, or have not had such a program in existence for three years, and are thereby excluded from participating in large public works projects. R 32-36, 38-56. This is why Labor Law § 222 is unconstitutional. D. Even assuming, arguendo, that the apprenticeship requirements apply only to PLA opt-out contracting, Plaintiffs are still precluded from all PLA opt-out contacting, and therefore all of Plaintiffs’ causes of action have merit Defendants ignore the fact that Plaintiffs’ Privileges and Immunities Clause, Dormant Commerce Clause, and Equal Protection Clause claims brought on behalf of minority-owned businesses, women-owned businesses, most small contractors, and upstate counties, as well as Plaintiffs’ substantive due process claims, are not exclusively premised on the applicability of the apprenticeship requirements to Wicks multi-prime contracting. - 37 - Even if the Court accepts Defendants’ construction, the 2008 Amendments still create an unlawful burden on, and discriminate against, out-of-state contractors and interstate commerce (R 35-36) by excluding all out-of-state contractors from all Wicks PLA opt-out contracting. Plaintiffs’ Privileges and Immunities Clause and Dormant Commerce Clause claims therefore have merit. The 2008 Amendments would also still exclude minority- and women- owned contractors and all contractors without an approved apprenticeship program. R 38-49. Minority- and women-owned contractors, few of whom have approved programs and can meet the additional apprenticeship requirements, are automatically excluded from all Wicks PLA opt-out contracting. Defendants offer no substantive response to these arguments and no justification for the widespread discrimination against such broad swaths of New Yorkers and non-New Yorkers. The exclusion of these groups from significant public contracting is equally unconstitutional, whether or not they are excluded from all Wicks Law contracting, or only from Wicks Law PLA opt-outs. E. The 2008 Amendments violate the Equal Protection Clause as to the upstate counties, and Plaintiffs have capacity and standing Defendants have expressly waived any alleged capacity defense against Erie County on its Equal Protection claim. Mastropaolo, 42 A.D.3d at 242 (holding that capacity defense may be waived). In Defendants’ own words: “[t]hat is not to say that Erie County cannot challenge a statute conferring a special benefit on another - 38 - county. It can do so, but the proper vehicle for such a challenge is the Equal Protection Clause….” Appellate Division Brief for Defendants-Respondents (“Defendants’ Appellate Division Brief”) at 20 (emphasis added).13 To the extent that Defendants argue common-law standing, Plaintiffs have more than adequately alleged an injury-in-fact, as they are precluded from the higher Wicks Law thresholds, and are thus more greatly exposed to the Wicks Law’s wasteful effects. Such injury, resulting from facial and de facto classification, clearly falls within the zone of interests protected by the Equal Protection Clause. Plaintiff Chris Collins also has capacity and standing to pursue this claim in his individual capacity as a citizen taxpayer. See infra, Point III. Regarding the contractor plaintiffs, Defendants confuse the issue of capacity and standing with an argument on the merits. Plaintiffs’ Equal Protection challenge on behalf of the upstate counties also has merit. The 2008 Amendments cannot survive rational basis review, as the purely geographic classifications are completely irrational. 13 The relevant excerpt from Defendants’ Appellate Division Brief is attached as Addendum B, beginning at B-1. Although not part of the Record on Appeal, this page was part of the original file, in that it was filed with the Appellate Division below. The Court can and should take judicial notice of its content. - 39 - POINT III PLAINTIFFS HAVE STANDING TO BRING A CITIZEN-TAXPAYER CLAIM, AND LABOR LAW § 222(2)(E) VIOLATES STATE FINANCE LAW § 123-B Plaintiffs have standing to bring a citizen-taxpayer claim. In Chamber of Commerce v. Pataki, 100 N.Y.2d 801 (2003), this Court held that citizen-taxpayers have standing under State Finance Law § 123-b to correct the illegality of official action. Id. at 808. There, the plaintiffs asserted standing under State Finance Law § 123-b to maintain a challenge that the governor had illegally and unconstitutionally entered into agreements with Indian tribes without legislative authorization or approval. Id. This Court held that, while a claim that state funds are not being spent wisely may be insufficient, “a claim that it is illegal to spend money at all for the questioned activity likely would provide the plaintiff with standing.” Id. at 813-14. Contrary to Defendants’ mischaracterization of Plaintiffs’ Complaint and Brief, Plaintiffs do not simply challenge the wisdom of state expenditures related to the 2008 Amendments, but instead argue that the 2008 Amendments are unconstitutional and illegal, and that any and all state expenditures arising from the 2008 Amendments are the result of unconstitutional and illegal actions. R 36-37. Critically, Defendants’ argument that the Legislature’s enactment of the 2008 Amendments was a purely “nonfiscal activity” dooms their misguided Home - 40 - Rule argument. Defendants variously (but inaccurately) contend that the 2008 Amendments implicate the (non-existent) substantial state concerns of ensuring “the procurement of high quality goods and services at the lowest possible cost” and relieving the “increasing financial and administrative strain on local governments.” Defendants’ Brief at 28-29. Defendants cannot have it both ways. If the 2008 Amendments lack a “sufficient nexus to fiscal activities of the State,” as Defendants now contend (id. at 56), then by necessity the 2008 Amendments neither identify any state concern regarding alleged fiscal relief, nor bear a reasonable relationship to any such (unidentified) state concern. Plaintiffs’ citizen-taxpayer challenge is also meritorious. Defendants’ reliance on Godfrey v. Spano, 13 N.Y.3d 358, 374 (2009) is misplaced, as that case involved the bare allegation that state funds would be expended. Here, Plaintiffs have more than adequately alleged a threat of specific expenditures of state funds that would not otherwise have occurred, including: (i) the imminent use of funds to enforce the provisions of the Wicks Law and the unconstitutional 2008 Amendments; (ii) the imminent expenditure of state monies to municipalities and political subdivisions that are specifically earmarked for use to pay for Wicks Law projects under the 2008 Amendments; and (iii) increased construction costs and state public works expenditures due to the multiple bidding requirements. R 37. No further specificity is required. - 41 - Finally, Defendants cite an out-of-context quote from Godfrey for the erroneous proposition that every citizen-taxpayer challenge must demonstrate “some specific threat of an imminent expenditure.” Defendants’ Brief at 57 (emphasis added).14 Instead, State Finance Law § 123-b provides that an action lies against an officer of the state who “has caused, is now causing, or is about to cause…[an] illegal or unconstitutional disbursement of state funds or state property.” State Finance Law § 123-b(1) (emphasis added). Here, Plaintiffs adequately alleged specific past, present, and future unconstitutional disbursements of state funds. R 37. 14 In Godfrey, this Court required a threat of a specific, imminent expenditure because the particular facts of that case involved allegations of prospective harm. See 13 N.Y.3d at 374. Godfrey did not limit the plain language of State Finance Law § 123-b to require a threat of future, imminent expenditure in every citizen-taxpayer challenge. CONCLUSION The Court should reverse the decision of the Appellate Division, and declare that the 2008 Amendments to the Wicks Law are unconstitutional. Dated: March 28,2013 Buffalo, New York Respectfully submitted, ·~tJcL By: __________ -r ____________ __ Michael B. Po ers, Esq. Timothy W. Hoover, Esq. William J. Simon, Esq. Attorneys for Plaintiffs-Appellants 3400 HSBC Center Buffalo, New York 14203 Tel.: (716) 847-8400 Fax: (716) 852-6100 - 42- ADDENDUM A A-1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE EMPIRE STATE CHAPTER OF ASSOCIATED BUILDERS AND CONTRACTORS, INC. et aI., PlaintiffS, Index No. I 2009/003725 -against- M. PATRICIA SMITlI, in her official capacity as Commissioner, New York State Department of Labor, and THOMAS P. DiNAPOLI in his official capacity as Comptroller, State of New York, Defendants. DEFENDANTS' MEMORANDUM OF LA W IN SUPPORT OF MOTION TO DISMISS COMPLAINT PATRICIA KAKALEC Assistant Attorney General in Charge of Labor Bureau GEORGE MICHAEL ZIMMERMA~ Assistant Attorney General Regional Office Main Place Tower, Suite 300A 350 Main Street Buffalo, New York 14202 716-853-8444 D ANDREW M. CUOMO ATTORNEY GENERAL OF THE STATE OF NEW YORK By: SETH KUPFERBERG Assistant Attorney General Chief, General Labor Section 120 Broadway New York, NY 10271 (212) 416-8856 Attorney for Defendants A-2 constitutionality," with the party which challenges a statute's constitutionality bearing "a heavy burden of proving its uncbnstitutionality beyond a reasonable doubt .... Only as a last resort should courts strike down legislation on the ground of unconstitutionality." North Hempstead v. Westbury, 182 A.D. 2d 272, 282 (2d Dep't 1992), modif. on other grounds, 208 A.D.2d 614 (2d Dep't 1994) i cf. Hotel Dorset Co., 46 N.Y.2d at 370j Schulz v. N.Y. State Legislature, 5 A.D.3d 885, 888-9 (3d Dep't 2004) i Bldg. Contractors' Ass'n v. State, 218 A.D.2d at 723. In this case, the Complaint's first asserted cause of action, the Home Rule claim, must be dismissed for each of two reasons. First, none of the plaintiffs has standing to raise the cla~m. Second, it would fail even if the lack of standing were overloOked, since the 2008 Amendments were enacted in furtherance of and bear a reasonable relationship to a substantial State-wide concern. A. NONE OF THE PLAINTIFFS HAS STANDING TO RAISE THE CLAIM Black Brook v. State, 41 N.Y.2d 486 (1977), explains that while a local government is normally "without standing to attack the constitutionality of State legislation affecting its powers," there is "a limited exception" when a statute allegedly violates Art. 9, id. at 487, because of the locality's "direct political interest in ensuring the preservation of its home rule power," id. at 489. In addition, a private plaintiff allegedly hurt by the Home Rule violation - "like the landowner in the companion case" Wambat Realty Corp., 41 N.Y.2d 490, a "would-be developer" 31 D A-3 restricted by an allegedly violative law - also has standing, see Black Brook, id. at 488-9. Here, each of two basic problems with standing requires dismissal of the Home Rule claim. First, all the plaintiffs, including Erie County, are subject to the standard $500, 000 wicks Law monetary threshold which applies in 54 New York counties, not the higher thresholds which apply in eight counties. While Art. 9 § 3(d) defines "special law" as one which "applies to one or more, but not all, counties," it is in the one or more counties where a law does apply, not the many where it does not, that Home Rule rights might conceivably be violated. The point of the Home Rule clause is to protect local governments - here, if any, New York City or Nassau, Suffolk or Westchester County - from unwanted "special" treatment, not to invalidate laws elsewhere. Otherwise, Art. 9 § 2(b) would state that a law "in relation to the property, affairs or government of any local government" must be requested not only by "its legislative body or. .. chief executive officer" (emphasis supplied), but also by those of all local governments to which the law does not apply. Besides being impractical, that would make the Home Rule clause self-contradictory. In effect, localities would be empowered not to govern themselves but to keep sister localities from doing so. Case law confirms that Home Rule protects the local government to which a special provision applies, not those to which it does not apply. See,~, City of New York v. PBA, 89 N.Y.2d 380, 385 (1996) (striking down law "which relates to the 'property, 32 D A-4 POINT IV SIX PLAINTIFFS ALSO LACK STANDING FOR ADDITIONAL REASONS With respect to six of the nine plaintiffs, the entire Complaint must also be dismissed for lack of standing. The Empire State Chapter of Associated Builders and Contractors, Inc. ("ABC") and Buffalo Niagara Partnership Inc. lack standing because they have not alleged harm either to themselves or to any members, apart from the completely conclusory claim that the latter include "many ... who are subject to and directly and negatively af,fected by the Wicks Law and the 2008 Amendments." Complaint ~~ 40 and 43. Organizational standing "requires a showing of 'cognizable harm,' meaning that an individual member of plaintiff organizations 'has been or will be injured. "' N.Y. State Ass'n of Nurse Anesthetists v. Novello, 2 N.Y.3d 207, 214 (2004) (quoting Rudder, 93 N.Y.2d at 279)); ~ Brown v. Erie County, 60 A.D.3d at 1444. ABC's lack of standing is especially clear because ~ 40 of the Complaint implies that ABC has as members plumbing, HVAC, and electrical as well as general contractors; those groups' interests with respect to the Wicks Law do not coincide. 22 As held in Rudder, 93 N.Y.2d at 279- 80, organizations "seeking to enhance job opportunities of only some... members" and "implicitly seek [ingJ to diminish job 22 See generally, ~, N.Y. Legis. Annual, 1946 at 206 (stating that Public Housing Law § lSI-a, extending Wicks Law requirements to public housing agencies, was enacted "on recommendation of the New York State Association of Electrical Contractors and Dealers") . 55 D A-5 opportunities for other of their members" have an "imperfect alignment of interests" that counts against standing. Erie county lacks standing to bring the Home Rule claim for reasonS discussed in point I(A) above, and lacks capacity to sue the defendants with respect to all other claims. Black Brook, 41 N.Y.2d at 487; cf. City of New York v. State, 86 N.Y.2d 286, 289- 292 (1995); Jeter v. Ellenville Cent. Sch. Dist., 41 N.Y.2d 283, 287 (1977). County Executive Chris Collins, who purports to sue "in his personal capacity and as a taxpayer," Complaint ~ 42, is also not a proper plaintiff. "Municipal officials ... suffer the same lack of capacity to sue the State with the municipal corporate bodies they represent" /I City of New York v, State, 86 N, Y. 2d at 291. Mr. Collins lacks standing to bring the State Finance Law § 123-b claim for reasons discussed in Point III above, and does not assert any other personal grounds to sue. Daniel J. Brinsky and Doug Byerly allege that they are, respecti vely, "the President and owner" and a foreman for Alleghany Industrial Insulation Co. ("All"), a corporation which alleges (incorrectly, as discussed above) that not having a DOL-approved apprenticeship program bars it from work on Wicks Law projects. Complaint "44-46. Even if All had a valid cause of action, Mr. Brinsky and Mr. Byerly, who do not claim to be contractors as individuals, would lack standing. That All's fortunes affect them no more lets them stand in its shoes to assert claims than ownership of All makes Mr. Brinsky liable for its debts. See 56 D A-6 generally, ~, We're Associates Co. v. Cohen, Stracher & Bloom, P.C., 65 N.Y.2d 148, 151-2 (1985) (no individual liability for corporate debts, even for "single-person businesses"). CONCLUSION For the reasons above, the Complaint must be dismissed in its entirety. Dated: July 14, 2009 PATRICIA ~~ALEC Assistant Attorney General In Charge of Labor Bureau GEORGE MICP~L ZIMMERMANN Assistant Attorney General Regional Office Main Place Tower, Suite 300A 350 Main Street Buffalo, New York 14202 716-853-8444 Respectfully submitted, ANDREW M. CUOMO ATTORNEY GENERAL OF THE STATE OF NEW YORK By: -. _-~I I ~::Hi~f=;~to~:r:::J Chief, General Labor Section 120 Broadway New York, NY 10271 212-416-8856 57 D ADDENDUMB B-1 CA 11-01813 To he argued by: ALL YSO N B. LEVINE" }, Time requested: 15 ininutes ERIE COUNTY1NDEXNo. 1-2009-3725 ~upreme (tOUtt of tbe $tate of ~efu ~otk ~ppellateJlibtgion -' jfouttb Jlepartment EMPIRE STATE, CHAPTER OFASSOCIATED BUILDERS AND CONTRACTORS, INC., COUNTY OF ERIE,CHRIS COLLINS, BUFFALO NIAGARA PARTNERSHIP INC., INNOVATIVE MECHANICAL SYSTEMS, INC., M.G.M.INSULATION, INC. ALLEGHANY INDUSTRIAL INSULATION, DANIEL J. BRINSKY, AND DOUG BYERLY, Plaintiffs-Appellants, ·AGAINST· M. PATRICIA SMITH, IN HER OFFICIAL CAPACITY, AS COMMISSIONER, NEW YORK STATE DEPARTMENT OF LABOR, AND THOMAS P. DINAPOLI, IN HIS OFFICIAL CAPACITY, AS COMPTROLLER, STATE OF NEW YORK, OFFICE OF THE COMPTROLLER, Respondents-Respondents. BRIEF FOR RESPONDENTS ANDREAOSER Deputy Solicitor General . ALLYSON B. LEVINE Assistant Solicitor General' of Counsel ERIC T. SCHNEIDERMAN Attorney General of the .. State of New York, . AttorneY for Respondents The Capitol Albany, New York 12224-0341 (518) 473-6948 QAG No. 09-099655 Dated: March 21,2012 Reproduced on Recycled Paper D B-2 l 1 \ • Erie County thus lacks standing to assert a violation of the Home Rule Provision. That is not to say that Erie County cannot challenge a statute conferring a special benefit on another county. It can do so, but the proper vehicle for such a challenge is the Equal Protection Clause, not the Home Rule Provision. While plaintiffs seek to raise that challenge too (PI. Br. at 39), it fails, as explained below. See, infra, at 27-28. B. AsSUMING THE 2008 AMENDMENTS CONSTITUTE A SPECIAL LAw, THEIR ENACTMENT DID NOT REQUIRE A HOME RULE MESSAGE BECAUSE THEY BEAR A REASONABLE RELATIONSHIP To A SUBSTANTIAL STATE- WIDE CONCERN. Even assuming that the three-tiered monetary thresholds implemented by the 2008 Amendments constitute a special law subject to the Home Rule Provision, which they do not, see Point I(C), supra, their enactment did not require a home rule message because, as Supreme Court properly found, they were enacted in furtherance of a substantial state concern and they bear a reasonable relationship to that concern. As a general matter, there is a strong presumption that legislative enactments are constitutional, and this presumption may only be rebutted by proof persuasive beyond a reasonable doubt. Hotel Dorset Co. v. Trust for Cultural Resources of City of N. Y.., 46 N.Y.2d 358, 370 (1978); Farrington v. Pinckney, 1 N.Y.2d 74, 88 (1956). With respect to the Home Rule Provision in 20 D B-3 CONCLUSION For the reasons stated above, Supreme Court's decision and judgment should be affirmed. Dated: Albany, New York March 21,2012 ANDREAOSER Deputy Solicitor General ALLYSON B. LEVINE Assistant Solicitor General of Counsel By: Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondents WLrk$,/~ ALLYSON . LEVINE C7. Assistant Solicitor General Office of the Attorney General The Capitol Albany, New York 12224 Telephone (518) 473-6948 Reproduced on Recycled Paper 36 D