Owner Operator Indep. Drivers Ass'n, Inc. v. N.Y.S. Dep't of Transp.

• Decision Date: 31 March 2022
• Docket Number: 531495
• Citation: 205 A.D.3d 53,166 N.Y.S.3d 337
• Parties: In the Matter of OWNER OPERATOR INDEPENDENT DRIVERS ASSOCIATION, INC., et al., Appellants, v. NEW YORK STATE DEPARTMENT OF TRANSPORTATION et al., Respondents.
• Court: New York Supreme Court — Appellate Division

205 A.D.3d 53

166 N.Y.S.3d 337

In the Matter of OWNER OPERATOR INDEPENDENT DRIVERS ASSOCIATION, INC., et al., Appellants,

v.NEW YORK STATE DEPARTMENT OF TRANSPORTATION et al., Respondents.

531495

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: February 17, 2022

Decided and Entered: March 31, 2022

Tabner, Ryan & Keniry, LLP, Albany (Charles R. Stinson of The Cullen Law Firm, PLLC, Washington, DC, of counsel, admitted pro hac vice), for appellants.

Letitia James, Attorney General, Albany (Kevin C. Hu of counsel), for respondents.

Before: Garry, P.J., Lynch, Pritzker, Colangelo and McShan, JJ.

OPINION AND ORDER

McShan, J. Appeal from a judgment of the Supreme Court (Cholakis, J.), entered May 7, 2020 in Albany County, which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, granted respondents’ motion to dismiss the petition/complaint.

The Federal Motor Carrier Safety Administration (hereinafter FMCSA) establishes and enforces federal safety standards for commercial motor vehicles (hereinafter CMVs) and their operators.

To encourage state cooperation in the enforcement of those federal regulations, the FMCSA provides grant funding to states that adopt the regulations into state law and assist in their enforcement (see 49 USC § 31102 ; 49 CFR 350.101, 350.209, 350.211 ). New York is a participant in the grant program and incorporates the required federal regulations into the regulations promulgated by respondent Department of Transportation (hereinafter DOT) (see 17 NYCRR part 820). DOT, assisted by the Department of Motor Vehicles and the State Police, is the agency primarily responsible for enforcing the FMCSA regulations in New York.

Among other safety requirements, the FMCSA and participating states regulate a CMV operator's maximum number of driving service hours (see 49 CFR part 395). To that end, state and federal laws require CMV operators to record their hours of service and duty status, as well as other relevant data, and to produce such records for inspection upon demand by state law enforcement (see 49 USC § 31142 [d]; Transportation Law § 140[2][b] ; 17 NYCRR 820.12 [a]). Hours of service data and duty status were previously documented on paper records or by automatic on-board recording devices (see 49 CFR former 395.8[a]). However, in 2012, Congress passed legislation requiring CMVs involved in interstate commerce and operated by drivers subject to the hours of service and record of duty status requirements to install electronic logging devices (hereinafter ELDs) (see 49 USC § 31137 [a]). ELDs integrate with a vehicle's engine and use GPS technology to automatically record the date, time and approximate geographic location of CMVs, as well as the number of engine hours and vehicle mileage (see 49 CFR 395.26 [b]). Drivers are required to manually input identifying information and any changes in their duty status, the categories of which include, among others, on-duty, off-duty and authorized personal use (see 49 CFR 395.24 [b]; 395.26[b]; 395.28). Upon request, information recorded by ELDs must be made available to law enforcement personnel during roadside safety inspections (see 49 USC § 31137 [b][1][B]; 49 CFR 395.24 [d]). The FMCSA promulgated the final rule in 2015, which, subject to certain exceptions, required that ELDs be installed and in use by December 18, 2017 (see 49 CFR 395.8, 395.15, 395.22, 395.24 ).

Petitioner Owner Operator Independent Drivers Association, Inc. (hereinafter OOIDA), a not-for-profit corporation whose members own and operate CMVs, commenced a proceeding in federal court challenging the ELD rule on various grounds, including that the warrantless inspection of ELD data constituted an unreasonable search and seizure under the U.S. Constitution. The Seventh Circuit rejected OOIDA's facial challenge to the ELD rule, concluding, insofar as is relevant here, that "the ELD mandate is a reasonable administrative inspection within the meaning of the Fourth Amendment" ( Owner–Operator Independent Drivers Assn., Inc. v. United State Dept. of Transp., 840 F.3d 879, 893 [7th Cir.2016] [internal quotation marks omitted], cert denied ––– U.S. ––––, 137 S. Ct. 2246, 198 L.Ed.2d 679 [2017] ). OOIDA then commenced a class action in Supreme Court alleging that the ELD rule was being enforced prior to its incorporation into state law and asserting that such enforcement violated CMV operators’ rights to due process and to be free from unreasonable searches and seizures under the N.Y. Constitution. Supreme Court (Platkin, J.) granted summary judgment dismissing the complaint, finding no evidence of any preadoption enforcement of the ELD rule and concluding that the prohibition against unreasonable searches and seizures is not violated by the roadside inspection of ELDs for the sole purpose of ensuring compliance with preexisting hours of service requirements ( Owner Operator Ind. Drivers Assn., Inc. v. Calhoun, 62 Misc.3d 909, 921–924, 93 N.Y.S.3d 802 [Sup. Ct., Albany County 2018], affd 188 A.D.3d 1313, 133 N.Y.S.3d 681 [2020] ). While OOIDA's appeal from that order and judgment was pending, DOT adopted the ELD rule as an emergency measure (see State Administrative Procedure Act § 202[6][a], [d][ii] ). Because the claims asserted by OOIDA in the state action related solely to the alleged preadoption enforcement of the ELD rule, this Court found that the adoption of the rule rendered those issues moot and dismissed the appeal ( Owner Operator Ind. Drivers Assn., Inc. v. Karas, 188 A.D.3d 1313, 1316, 133 N.Y.S.3d 681 [2020] ).

The ELD rule was finally incorporated into New York law effective April 24, 2019 (see 17 NYCRR 820.6 ). Petitioners – OOIDA and three current or former CMV operators – thereafter commenced this combined CPLR article 78 proceeding and action for declaratory judgment against DOT and various state officials alleging that the ELD rule, on its face, violates their right to due process and the proscription against unreasonable searches and seizures guaranteed by the N.Y. Constitution. They further asserted that DOT's promulgation of the ELD rule was arbitrary and capricious in that it violated the State Administrative Procedure Act (hereinafter SAPA). Respondents moved to dismiss the petition/complaint for, among other reasons, failure to state a cause of action. Supreme Court (Cholakis, J.) granted the motion and dismissed the petition/complaint. Petitioners appeal.¹

Facial constitutional challenges are "generally disfavored" ( People v. Stuart, 100 N.Y.2d 412, 422, 765 N.Y.S.2d 1, 797 N.E.2d 28 [2003] ; see Overstock.com, Inc. v. New York State Dept. of Taxation & Fin., 20 N.Y.3d 586, 593, 965 N.Y.S.2d 61, 987 N.E.2d 621 [2013], cert denied 571 U.S. 1071, 134 S.Ct. 682, 187 L.Ed.2d 549 [2013] ), and a party mounting such a challenge "must surmount the presumption of constitutionality accorded to legislative enactments by proof beyond a reasonable doubt" ( Matter of Moran Towing Corp. v. Urbach, 99 N.Y.2d 443, 448, 757 N.Y.S.2d 513, 787 N.E.2d 624 [2003] [internal quotation marks omitted]; see Matter of E.S. v. P.D., 8 N.Y.3d 150, 158, 831 N.Y.S.2d 96, 863 N.E.2d 100 [2007] ). To prevail on their facial constitutional challenges, petitioners "bear the burden to demonstrate that ‘in any degree and in every conceivable application,’ the law suffers wholesale constitutional impairment" ( Cohen v. State of New York, 94 N.Y.2d 1, 8, 698 N.Y.S.2d 574, 720 N.E.2d 850 [1999], quoting McGowan v. Burstein, 71 N.Y.2d 729, 733, 530 N.Y.S.2d 64, 525 N.E.2d 710 [1988] ; see Overstock.com, Inc. v. New York State Dept. of Taxation & Fin., 20 N.Y.3d at 593, 965 N.Y.S.2d 61, 987 N.E.2d 621 ). Stated differently, petitioners "must establish that no set of circumstances exists under which the [rule] would be valid" ( Matter of Moran Towing Corp. v. Urbach, 99 N.Y.2d at 448, 757 N.Y.S.2d 513, 787 N.E.2d 624 [internal quotation marks and citation omitted]).

The crux of this appeal is that the ELD rule violates the privacy rights encompassed within article I, § 12 of the N.Y. Constitution.² That provision of the N.Y. Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures" ( N.Y. Const, art I, § 12 ). Warrantless searches are, as a general rule, per se unreasonable unless they fall within one of the recognized exceptions to the warrant requirement (see People v. Sanders, 26 N.Y.3d 773, 776, 27 N.Y.S.3d 491, 47 N.E.3d 770 [2016] ; People v. Diaz, 81 N.Y.2d 106, 109, 595 N.Y.S.2d 940, 612 N.E.2d 298 [1993], abrogated on other grounds Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 [1993] ; Matter of White v. State of N.Y. Tax Appeals Trib., 196 A.D.3d 927, 929, 150 N.Y.S.3d 414 [2021] ). One such exception is the so-called administrative search exception. Warrantless administrative searches may be upheld "where the activity or premises sought to be inspected is subject to a long tradition of pervasive government regulation and the regulatory statute authorizing the search prescribes specific rules to govern the manner in which the search is conducted" ( People v. Quackenbush, 88 N.Y.2d 534, 541, 647 N.Y.S.2d 150, 670 N.E.2d 434 [1996] [internal citation omitted]). As the Court of Appeals has explained, "a person involved in a closely regulated business or activity generally has a diminished expectation of privacy in the conduct of that business because of the degree of governmental regulation. Because of the minimal expectation of privacy in a closely regulated business, warrantless searches of such conduct are considered more necessary and less intrusive than such inspections would be if conducted on less heavily regulated businesses" ( id. at 541–542, 647 N.Y.S.2d 150, 670 N.E.2d 434 [internal quotation marks and citation omitted]; see Donovan v. Dewey, 452 U.S. 594, 599, 101 S.Ct. 2534, 69 L.Ed.2d 262 [1981] ; ...