Empire State Chapter of Associated Builders v. Smith
| Decision Date | 06 June 2013 |
| Citation | 970 N.Y.S.2d 724,2013 N.Y. Slip Op. 04038,21 N.Y.3d 309,992 N.E.2d 1067 |
| Parties | EMPIRE STATE CHAPTER OF ASSOCIATED BUILDERS AND CONTRACTORS, INC., et al., Appellants, v. M. Patricia SMITH, in Her Official Capacity as Commissioner, New York State Department of Labor, et al., Respondents. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Phillips Lytle LLP, Buffalo (Timothy W. Hoover, Michael B. Powers and William J. Simon of counsel), for appellants.
Eric T. Schneiderman, Attorney General, Albany (Andrea Oser, Barbara D. Underwood and Allyson B. Levine of counsel), for respondents.
We hold that, where the legislature has enacted a law of statewide impact on a matter of substantial state concern but has not treated all areas of the state alike, the Home Rule section of the State Constitution does not require an examination into the reasonableness of the distinctions the legislature has made.
The Wicks Law, originally enacted in 1912, requires public entities seeking bids on construction contracts to obtain “separate specifications” for three “subdivisions of the work to be performed”—generally, plumbing, electrical and HVAC (heating, ventilating and air conditioning) work (L. 1912, ch. 514, § 50, now codified in General Municipal Law § 101, Public Housing Law § 151–a, State Finance Law § 135 and elsewhere). The law has long been controversial; public entities have complained that it makes contracting more burdensome and expensive ( see generally Rosenstein & O'Reilly, Wicks Law Revisited, NYLJ, Nov. 13, 2007 at S1). Until 2008, the Wicks Law applied everywhere in the state to contracts whose cost exceeded $50,000.
This case concerns amendments to the Wicks Law enacted in 2008 that raised the $50,000 threshold, imposed so-called “apprenticeship requirements” on some public contracting, and made other changes not relevant here (L. 2008, ch. 57, part MM). The new, higher thresholds, unlike the old one, are not uniform throughout the state. They are $3 million in the five counties located in New York City; $1.5 million in Nassau, Suffolk and Westchester Counties; and $500,000 in the other 54 counties ( see id. §§ 1, 2–6, 14).
Plaintiffs' main claim, asserted in their first cause of action, is that the 2008 legislation violates article IX, § 2 of the State Constitution (the Home Rule section) by unjustifiably favoring the eight counties with higher thresholds—i.e., by loosening Wicks Law restrictions to a greater extent for them than for the other counties. Plaintiffs also assert 20 other claims, largely directed at the apprenticeship requirements imposed by the 2008 legislation.
On defendants' motion pursuant to CPLR 3211, Supreme Court dismissed the complaint, holding, as to the Home Rule cause of action, that plaintiffs lacked standing to assert it and that in any event the challenged amendments to the Wicks Law did not violate the Home Rule section because they “were enacted in furtherance of and bear a reasonable relationship to a substantial statewide concern” (Empire State Ch. of Associated Bldrs. & Contrs., Inc. v. Smith, 30 Misc.3d 455, 457, 915 N.Y.S.2d 903 [Sup.Ct.Erie County 2010] ). Supreme Court also rejected plaintiffs' other claims. The Appellate Division held that one plaintiff, the County of Erie, did have standing to sue, but agreed with Supreme Court that plaintiffs' Home Rule claim and all of their other claims failed on the merits; it modified Supreme Court's judgment by reinstating the complaint to the extent it sought declaratory relief, and declaring the 2008 legislation valid and constitutional (98 A.D.3d 335, 949 N.Y.S.2d 549 [4th Dept.2012] ). Two Appellate Division Justices dissented; they agreed with the majority that the amendments addressed substantial state concerns, but concluded that the three-tiered classification of counties was not “rational and reasonably related to those State concerns” and was therefore invalid under the Home Rule section ( id. at 351, 949 N.Y.S.2d 549 [Peradotto, J., dissenting] ).
Plaintiffs appeal to us as of right, pursuant to CPLR 5601(a) and (b)(1). Like the Appellate Division majority, we conclude that at least one plaintiff, the County of Erie, has standing to assert the Home Rule claim ( see Town of Black Brook v. State of New York, 41 N.Y.2d 486, 393 N.Y.S.2d 946, 362 N.E.2d 579 [1977] ), but that that claim fails on the merits. We find that most of plaintiffs' other claims fail also, but modify the Appellate Division order to reinstate four causes of action challenging the apprenticeship requirements as applied to out-of-state contractors.
The Home Rule section of the State Constitution says:
“(b) Subject to the bill of rights of local governments and other applicable provisions of this constitution, the legislature: ...
“(2) Shall 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 (a) 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, or (b) except in the case of the city of New York, on certificate of necessity from the governor reciting facts which in the judgment of the governor constitute an emergency requiring enactment of such law and, in such latter case, with the concurrence of two-thirds of the members elected to each house of the legislature.” (N.Y. Const., art. DC, § 2[b][2].)
It is undisputed that neither of the prerequisites described in subdivisions (a) and (b) of section 2(b)(2)—a so-called “home rule message” or a certificate of necessity from the governor—was met in this case. And we assume, without deciding, that the distinctions drawn between counties in the 2008 legislation make that legislation a “special law,” defined in article DC, § 3(d)(4), as relevant here, to be “[a] law which in terms and in effect applies to one or more, but not all, counties.” Nevertheless, we conclude that the legislation was not forbidden by the Home Rule section.
The language of article DC, § 2(b)(2) seems broadly to prohibit, where the specified prerequisites are not met, the enactment of any special law “in relation to the property, affairs or government of any local government.” Another subdivision of the same section, section 2(c)(i), uses similar language in granting power to local governments:
“every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to its property, affairs or government.”
These two provisions might be read to mean that, in the absence of a home rule message or certificate of necessity, a local government's “property, affairs or government” is an area in which local governments are free to act, but from which the state legislature is excluded unless it legislates by general law. It was long ago recognized, however, that such a reading of the Constitution would not make sense—that there must be an area of overlap, indeed a very sizeable one, in which the state legislature acting by special law and local governments have concurrent powers. As Chief Judge Cardozo put it in his concurring opinion in Adler v. Deegan, 251 N.Y. 467, 489, 167 N.E. 705 (1929) (): “The Constitution ... will not be read as enjoining an impossible dichotomy.” He added:
We have adopted in later cases the test as Chief Judge Cardozo formulated it ( e.g. Wambat Realty Corp. v. State of New York, 41 N.Y.2d 490, 494, 393 N.Y.S.2d 949, 362 N.E.2d 581 [1977];Matter of Town of Islip v. Cuomo, 64 N.Y.2d 50, 56–57, 484 N.Y.S.2d 528, 473 N.E.2d 756 [1984];City of New York v. Patrolmen'sBenevolent Assn. of City of NY, 89 N.Y.2d 380, 390–391, 654 N.Y.S.2d 85, 676 N.E.2d 847 [1996];Greater N.Y. Taxi Assn. v. State of New York, 21 N.Y.3d 289, ––– N.Y.S.2d ––––, ––– N.E.2d ––––, 2013 WL 2435073 [2013] [decided today] ). And we have found support in the Constitution's text for the view that the permitted spheres of the state legislature and localities overlap. We relied in Town of Islip on article IX, § 3(a)(3) of the Constitution, which says:
“Except as expressly provided, nothing in this article shall restrict or impair any power of the legislature in relation to ... [m]atters other than the property, affairs or government of a local government.” ( See Town of Islip, 64 N.Y.2d at 55–56, 484 N.Y.S.2d 528, 473 N.E.2d 756.)
This language is not a mere redundancy—a statement that article IX, § 2(b)(2) does not prohibit what it does not prohibit. A great deal of legislation relates both to “the property, affairs or government of a local government” and to “[m]atters other than the property, affairs or government of a local government”—i.e., to matters of substantial state concern. Where that is true, section 3(a)(3), as we interpreted it in Town of Islip, establishes that section 2(b)(2) does not prevent the State from acting by special law.
This principle controls this case. It can hardly be disputed, and plaintiffs here do not dispute, that the manner of bidding on public construction contracts is a matter of substantial state concern. The existence of the Wicks Law itself for the last century, and of much other legislation governing public contracting ( e.g.General Municipal Law § 100–a [requiring...
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