Merola v. Cuomo

• Decision Date: 13 December 2019
• Docket Number: 1:19-cv-899 (GLS/TWD)
• Citation: 427 F.Supp.3d 286
• Parties: Frank J. MEROLA, Plaintiff, v. Andrew M. CUOMO et al., Defendants.
• Court: U.S. District Court — Northern District of New York

427 F.Supp.3d 286

Frank J. MEROLA, Plaintiff,

v.Andrew M. CUOMO et al., Defendants.

1:19-cv-899 (GLS/TWD)

United States District Court, N.D. New York.

Signed December 13, 2019

FOR THE PLAINTIFF: Harris, Beach Law Firm OF COUNSEL: ELLIOT A. HALLAK, ESQ., KARL J. SLEIGHT, ESQ., 677 Broadway, Suite 1101, Albany, NY 12207, OF COUNSEL: KELLY S. FOSS, ESQ., 99 Garnsey Road, Pittsford, NY 14534.

FOR THE DEFENDANTS: HON. LETITIA JAMES, New York State Attorney General OF COUNSEL: KEITH J. STARLIN, Assistant Attorney General, The Capitol, Albany, NY 12224, OF COUNSEL: LINDA FANG, Assistant Solicitor General, 28 Liberty Street, New York, NY 10005.

FOR THE UNITED STATES: Department of Justice Civil Division, Federal Programs Branch OF COUNSEL: CHARLES E.T. ROBERTS, ESQ., 1100 L Street, NW, Washington, DC 20005.

FOR AMICUS CURIAE: HON. WILLIAM TONG, Attorney General of Connecticut OF COUNSEL: JOSHUA PERRY, ESQ., P.O. Box 120, 55 Elm Street, Hartford, CT 06106.

MEMORANDUM-DECISION AND ORDER

Gary L. Sharpe, Senior District Judge

I. Introduction

To the dissatisfaction of the parties and public-at-large, courts are at times unable to pass upon the merits of a case for one reason or another. There are various reasons why the ultimate question for which parties seek judicial review cannot be broached. This is such a case. It should be noted that cases like this one, where the court is constrained to dismiss without deciding the legal issues at play — here, a challenge to New York's Driver's License Access and Privacy Act (DLAPA),¹ more commonly referred to as the "Green Light Law" — does not mean in the vernacular that the "law is legal," despite what any politician may claim, (Dkt. No. 27, Attach. 7 at 2). Indeed the court has not and cannot pass upon that question no matter how compelling the arguments are on one side or the other. With that caveat in mind, the court turns to the issues now before it.

Pending are a motion for a preliminary injunction filed by plaintiff Frank J. Merola, Clerk of the County of Rennselaer, New York, and a cross motion to dismiss pursuant to Rule 12(c) of the Federal Rules of Civil Procedure² filed by defendants Andrew M. Cuomo, Governor of the State of New York, Letitia A. James, Attorney General of the State of New York, and Mark J.F. Schroeder, Commissioner of the New York State Department of Motor Vehicles (DMV) (hereinafter collectively referred to as "the State"). (Dkt. Nos. 27, 30.)³ For the reasons that follow, the State's cross motion to dismiss is granted, and Merola's motion for a preliminary injunction is denied as moot.

II. Background ⁴

The DLAPA, which goes into effect on December 14, 2019, modifies sections 201, 502, and 508 of the New York Vehicle and Traffic Law. See L. 2019, ch 37. The amendments alter the New York State driver's licensing scheme in three material ways that are at issue here by: (1) forbidding disclosure or sharing of applicant information except under limited circumstances; (2) expanding the approved forms of identification accepted for obtaining a driver's license; and (3) requiring prompt notice to an individual about whom a request for information was made by "any agency that primarily enforces immigration law." Id. §§ 2-6. Some county clerks throughout the State of New York, like Merola, are required to perform DMV functions, such as the issuance of driver's licenses. See N.Y. Veh. & Traf. Law § 205(1).

Broadly speaking, Merola challenges the DLAPA as prempted by federal law. (Compl. ¶¶ 40, 78, Dkt. No. 1.) He contends that he confronts a dilemma: comply with the DLAPA and violate the United States Constitution and expose himself to federal criminal liability, or refuse to comply with the DLAPA and be subject to removal from office and a loss of funding. (Compl. ¶ 77; Dkt. No. 32 at 5-6.) The State promotes this legislation as advancing "public safety and economic growth." (Dkt. No. 30, Attach. 1 at 1.)

Some sixteen days before this action was commenced, a near-identical case was commenced in the United States District Court for the Western District of New York, involving a similar challenge to the DLAPA. (Kearns v. Cuomo , Dkt. No. 1, 1:19-cv-902.) The plaintiff there, Michael Kearns, is the Clerk of Erie County, and he brought his action against the same defendants named in this matter. (See generally id. ) That action has since been dismissed for lack of standing and an appeal is pending with the Second Circuit. See Kearns v. Cuomo , 415 F.Supp.3d 319 (W.D.N.Y. 2019), appeal docketed , No. 19-3769 (2d Cir. Nov. 13, 2019).

III. Standards of Review

"The standard for addressing a Rule 12(c) motion for judgment on the pleadings is the same as that for a Rule 12(b)(6) motion to dismiss for failure to state a claim." Wright v. Monroe Cmty. Hosp. , 493 F. App'x 233, 234 (2d Cir. 2012) (internal quotation marks and citation omitted). For a full discussion of the governing standard, the court refers the parties to its prior decision in Ellis v. Cohen & Slamowitz, LLP , 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010), abrogated on other grounds by Altman v. J.C. Christensen & Assocs., Inc. , 786 F.3d 191 (2d Cir. 2015).

As mentioned above, see supra note 2, to the extent that standing is challenged, the State's motion is properly considered under Rule 12(b)(1). Under Rule 12(b)(1), the standard of review is similar to that of Rule 12(b)(6), except that the court "may refer to evidence outside the pleadings ... [and a] plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000) (citations omitted).

IV. Discussion

A. Cross Motion to Dismiss

The State makes a handful of arguments in support of its cross motion to dismiss. (Dkt. No. 30, Attach. 1.) Two of them urge dismissal for the threshold issues of lack of standing and capacity, while the others go to the merits of Merola's claims. (Id. at 9-35.)

i. Standing

Standing is a "threshold question," which should be addressed at the outset of the litigation. See Nat'l Org. for Women, Inc. v. Scheidler , 510 U.S. 249, 255, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994). The broad contours of standing — an injury-in-fact, causation, and redressability, see Lujan v. Defs. of Wildlife , 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) — and the finer points were discussed at length in Kearns v. Cuomo , 415 F.Supp.3d 319, 2019 WL 5849513, but Merola's sole theory of standing here is different from that proffered in Kearns . (Dkt. No. 32 at 3-9.)

Relying on Board of Education of Central School District No. 1 v. Allen , 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), and Aguayo v. Richardson , 473 F.2d 1090 (2d Cir. 1973), Merola contends that he "unquestionably [has] established oath-of-office standing to pursue his claims in his official capacity as County Clerk." (Dkt. No. 32 at 3.)⁵ While the State attempted to get out in front of this theory in its memorandum of law filed in support of its cross motion, it primarily focused on other bases of standing, or the lack thereof. (Dkt. No. 30, Attach. 1 at 11-20.) That is, in part, the fault of the briefing schedule, which was set to accommodate the sensitive timing issues in this case, and the State has not had the opportunity⁶ to address Merola's specific contentions about oath-of-office standing raised in his response. In any case, the State argues that compliance with the DLAPA is not at odds with either the Federal or State Constitutions. (Id. at 19.) It claims further that Merola's subjective belief that his compliance would violate the Federal Constitution is insufficient, and his argument about the adverse consequences that would befall him (removal from office and loss of licensing revenue) are "highly speculative and premature." (Id. at 19-20.)

In Allen , the Supreme Court indicated, in dicta, the existence of standing where a plaintiff who "ha[s] taken an oath to support the United States Constitution" is "in the position of having to choose between violating [his] oath and taking a step—refusal to comply with [a challenged state statute]—that would be likely to bring [his] expulsion from office and also" a loss of funding. 392 U.S. at 241 n.5, 88 S.Ct. 1923. This doctrine, sometimes called the " ‘dilemma’ theory of standing," has been recognized by the Supreme Court, Second Circuit, and other Circuits in subsequent cases, although it is infrequently invoked. Bd. of Educ. of Mt. Sinai Union Free Sch. Dist. v. N.Y. State Teachers Ret. Sys. , 60 F.3d 106, 112 (2d Cir. 1995) ; see Bender v. Williamsport Area Sch. Dist. , 475 U.S. 534, 544 n.7, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) ; Aguayo , 473 F.2d at 1100.

Here, Merola took an oath of office in which he "solemnly sw[ore] that [he] w[ould] support the constitution of the United States, and the constitution of the State of New York, and that [he] w[ould] faithfully discharge the duties of the office ..., according to the best of [his] ability." (Dkt. No. 27, Attach. 2 ¶ 8.) He argues that the only requirement he need meet in order to establish oath-of-office standing is his good faith belief that compliance with the DLAPA would require him to violate the Federal Constitution. (Dkt. No. 32 at 5.) Merola disputes the applicability of Finch v. Mississippi State Med. Association, Inc. , 585 F.2d 765, 774 (5th Cir. 1978), modified , 594 F.2d 163 (5th Cir. 1979), relied upon by the State, (Dkt. No. 30, Attach. 1 at 19-20), which held that a mere belief that a statute violates the constitution is insufficient to establish standing, see Finch , 585 F.2d at 774, as at odds with Allen and Aguayo , and not binding on this court in any event, (Dkt. No. 32 at 6). Alternatively, Merola argues that he has adequately demonstrated a realistic threat of removal from office or the loss of funding should those requirements be deemed a part of the test for oath-of-office standing by this court. (Id. at 6-7.) Because the...