Can New York City govern itself? The incongruity of the Court of Appeals' recent cases regarding regulation of New York City by New York City.

• Author: Kaplan, Roberta A.

1. INTRODUCTION

   This past June, the New York Court of Appeals struck down as exceeding the scope of permissible regulation the proposed "soda ban" in New York City, a public health measure that prohibited most establishments in New York City, including restaurants and movie theaters, from serving certain sugary drinks in portions larger than sixteen fluid ounces. (1) This decision was a blow to the legacy of former New York City Mayor Michael Bloomberg, who had strenuously advocated for its passage and had made it a centerpiece of his public health agenda in order to combat obesity and related diseases, such as diabetes, among New York City residents. (2) Although the soda ban had widespread support from the public health community, (3) it was vehemently opposed by a number of lobbying groups associated with the food and beverage industry, who ultimately were responsible for filing the lawsuit that successfully overturned it. (4)

   The year before, however, in a big win for Mayor Bloomberg, the Court of Appeals had upheld as constitutional the HAIL Act, (5) which had been passed by the New York State Legislature after Mayor Bloomberg failed to convince the New York City Council to enact his original proposal. (6) The HAIL Act, for the first time, allowed livery cabs to accept passengers in the outer boroughs and outside Manhattan's central business district who hail the livery cabs from the street, and also expanded the number of traditional yellow cabs accessible to passengers with disabilities. (7) Although the home rule clause of the New York State Constitution limits the authority of the New York State Legislature when dealing with purely local matters, and it had always been assumed previously that laws regulating New York City taxicabs required a "home rule message," (8) the Court of Appeals held that because the regulation of taxicabs in New York City constituted a matter of substantial state interest, the State was authorized to pass the legislation without input from the New York City Council. (9)

   The obvious question posed by these two decisions, only a year apart, is what explains the seemingly contradictory results? Why were outer-borough livery cabs approved by the Court of Appeals and limits on soda portions struck down? How can it be that a regulation proposed by New York City's own health commissioner was invalid for the soda ban, but regulation by the state legislature of New York City taxi cabs was appropriate? Both cases involved New York City regulations, namely the complex scheme of taxicab regulation or the proposed new limitation on the available portion size of soda. Both cases focused on the same or similar question: whether a regulation limited to New York City was appropriate under the New York State Constitution. And both cases were decided in opinions authored by Judge Pigott. Yet they came to starkly different answers--in one, a state regulation specifically limited in application to a New York City activity was held constitutional; in the other, a New York City health authority was held to lack the authority to promulgate an ordinance. Unfortunately, as discussed below, the answer to the question whether (and if) these two cases can somehow be comfortably reconciled with each other appears to be "no."

2. THE HAIL ACT CASE

   Last year's decision by the Court of Appeals in the HAIL Act case reflects the continued weakness of the state constitutional guarantee of home rule by New York City as interpreted by the courts. In Greater New York Taxi Association v. State, a local interest group based in New York City challenged the HAIL Act, a statute promulgated by the New York State Legislature, which authorized, among other things, the ability of thousands of livery cabs--not holders of taxicab medallions--to accept street hails in "underserved" areas of New York City. (10) This statute represented a direct challenge to local control of taxi services, which had been directly regulated by New York City for more than half a century. (11) Judge Pigott, who would later reject the soda ban, wrote for a unanimous Court of Appeals, finding that the HAIL Act addressed a "substantial state concern," and so should be upheld, (12) despite the lack of approval--and indeed outright rejection--of the proposal by the New York City Council. (13)

   The decision by the Court of Appeals in the HAIL Act case revolved around the interpretation of the home rule provision in the New York State Constitution. The home rule provision states in relevant part as follows:

   [T]he legislature ... [s]hall have the power to act in relation to the property, affairs or government of any local government only by general law, or by special law only ... on request of two-thirds of the total membership of its legislative body or on request of its chief executive officer concurred in by a majority of such membership..., (14) This clause limits the power of the New York State Legislature to enact laws regulating matters that fall within the purview of local government. Although the state legislature may pass laws of general application that apply to all cities, when it seeks to regulate the "property, affairs or government" of a specific city, the state legislature may only do so at the request of the local legislature, which issues what is known as a home rule message. (15)

   However, the home rule clause of the New York State Constitution is subject to a significant limitation. In the 1929 case of Adler v. Deegan, (16) the New York Court of Appeals created a judicial exception to the home rule provision of the New York State Constitution: the "state concern" doctrine. (17) As articulated by Judge Cardozo, "if the subject be in a substantial degree a matter of State concern, the Legislature may act, though intermingled with it are concerns of the locality." (18) Subsequent decisions by the Court of Appeals have interpreted this "state concern" doctrine broadly, (19) as Judge Pigott did in upholding the constitutionality of the HAIL Act, (20) a law passed by the state legislature without an enabling "home rule message." (21)

   According to Judge Pigott, the State of New York had a substantial concern in the regulation of local taxicabs in New York City because "[efficient transportation service in the State's largest city and international center of commerce is important to the entire State." (22) Judge Pigott noted in particular the millions of visitors to the city and that the HAIL Act promoted the ability of the disabled to obtain accessible vehicles. (23)

   Since the Court of Appeals issued its decision last year, a number of courts and commentators have noted the implications of that ruling for the continued application of home rule. Last year, this author noted that the Court of Appeals' reasoning concerning "the State's substantial interest has the potential to effectively eviscerate any separation of the local and state interest, at least for New York City." (24) Similarly, another commentator noted that "[j]udicial acceptance of the lack of need for such a home rule message might weaken the city's long-term interest in resisting interference from future state legislatures in the operations of New York City, to the dismay of future mayors and corporation counsels." (25) Courts have also cited to this decision when rejecting challenges to state legislation based upon the principle of home rule. (26)

   Effectively, the legal reasoning adopted by the HAIL Act case could be used to nullify any demarcation between state and local authority, at least with respect to New York City. Since the economy of New York State is dependent upon that of New York City, any local ordinance relating to New York City would likely affect New York State--and so constitute a "state concern" under Judge Pigott's expansive conception of the law. The court's rationale in the HAIL Act case for enabling the regulation permitting livery cabs to pick up passengers through street hails outside Manhattan is particularly striking. Judge Pigott cited the "[mjillions of people from within and without the State [who] visit the City annually" as a justification for the state legislature's action in approving the HAIL Act. (27) Yet...