Soling v. New York State

• Decision Date: 15 October 1992
• Docket Number: No. 91 Civ. 5906 (VLB).,91 Civ. 5906 (VLB).
• Citation: 804 F. Supp. 532
• Parties: Chester P. SOLING, Plaintiff, v. NEW YORK STATE, New York State Thruway Authority and Triborough Bridge and Tunnel Authority, Defendants.
• Court: U.S. District Court — Southern District of New York

804 F. Supp. 532

Chester P. SOLING, Plaintiff, v. NEW YORK STATE, New York State Thruway Authority and Triborough Bridge and Tunnel Authority, Defendants.

No. 91 Civ. 5906 (VLB).

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

October 15, 1992.

Chester P. Soling, pro se.

August L. Fietkau, Asst. Atty. Gen., Dept. of Law, State of N.Y., New York City, for defendants.

MEMORANDUM ORDER

VINCENT L. BRODERICK, District Judge.

I

This is one of two overlapping lawsuits brought by the plaintiff asking the federal courts to declare invalid various practices of a state and state-created agency. In each lawsuit, plaintiff alleges that those agencies constitute non-elected bodies which charge tolls, amounting to taxes, not voted upon by elected representatives and used for purposes not approved by such representatives. For several reasons, discussed in greater detail below, I dismiss the complaint.

The analysis which follows establishes in some detail the reasons why plaintiff's complaint fails to state a claim on which relief may be granted. I have prepared the analysis for two reasons:

(1) so that, in recognition of the importance of access to the courts by individual citizens who challenge decisions in our system of government, as in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) (one-person one-vote decision contrary to prior precedent), plaintiff will have had a full day in court and will obtain a ruling discussing the merits of, as well as procedural barriers to, his claims; and

(2) so that further suits on overlapping grounds will be properly precluded in the future.¹

II

Plaintiff's pleadings in this action consist of a complaint and a further additional complaint.

1. Plaintiff's first claim in the original complaint is that New York State has established authorities (New York State Thruway Authority and Triborough Bridge & Tunnel Authority) which act as independent governments that impose tolls which amount to taxes without consent of the governed, which tolls are used in ways not decided upon by elected representatives, contrary to the constitutional guarantee of a republican form of government (Art. IV § 4).

2. The second claim in the original complaint alleges violation of the Federal Interstate Highway Act (23 U.S.C. § 129), which provides for an interstate highway system on which tolls are charged only to liquidate the cost of the highways and associated bonds. A subordinate claim asserts that the Authorities circumvent state sunset provisions by floating new and unrelated bonds with respect to which they continue to charge tolls.

3. The third claim in the original complaint alleges that the interstate highway system, initiated during the 1950s, was built partially for the purpose of facilitating national defense, and that the ability of bondholders to seize facilities for defaults imperils that objective.

Plaintiff's further additional complaint elaborates on the above points and adds the following claims:

4. Freedom of assembly guaranteed by the First Amendment is violated by obstruction of free use of roads.

5. Imposition of tolls in some locations and not others "makes classes of people."

6. The state-related status of the Authorities facilitates failure to deliver services which have been charged for — a failure which would be actionable if a private party were responsible.

7. By issuing new bonds, the Authorities evade state law sunset provisions with respect to their authority to collect tolls.

Plaintiff's first lawsuit, Soling v. New York State, 91 Civ. 3372 (KTD), was against the State of New York but was predicated on essentially the same core grounds as the pending action. It was dismissed by Judge Duffy on May 24, 1991 sua sponte, citing the Eleventh Amendment, lack of case or controversy, and lack of standing.²

Rather than seeking reargument or leave to amend the complaint in 91 Civ. 3372, or filing a notice of appeal from Judge Duffy's ruling, plaintiff initiated this lawsuit on August 28, 1991. In this action, plaintiff has again cast New York State as a defendant, and he has added the New York Thruway Authority and the Triborough Bridge and Tunnel Authority as additional defendants.

A sua sponte dismissal of a complaint should, absent unusual circumstances, be treated as technically res judicata. And the res judicata effect of such a sua sponte dismissal should apply as strictly to pro se as to other plaintiffs; the necessity for avoiding multiplicitous lawsuits is intuitively obvious to everyone — especially to one such as plaintiff here, who has made himself familiar with court procedure (see, in addition to this case and 91 Civ. 3372 (KTD), 91 Civ. 2922 RWS, 1991 WL 79165, 90 Civ. 1349 LBS, 90 Civ. 1348 MGC). The filing of such lawsuits multiplies litigation in an unacceptable and entirely improper manner. Plaintiff's current suit is impermissible because of the obvious waste of resources and confusion caused by multiple suits concerning overlapping claims. See Smith v. Russell Sage College, 54 N.Y.2d 185, 192-93, 445 N.Y.S.2d 68, 429 N.E.2d 746 (1981).

III

Judge Duffy's ruling that there was no case or controversy under Article III of the Constitution and no standing on plaintiff's part to sue draws support from the long-standing doctrine that one may not utilize the courts to challenge qua "tribune of the people," governmental taxation or expenditures merely because one is a taxpayer (or, here, potential or actual tollpayer) or a citizen. For there to be a constitutional case or controversy, and for one to have standing, it is necessary to allege a specific injury more concrete in nature, or to allege injury to a constitutional right that cannot otherwise be protected. See Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). Here, plaintiff has not shown specific individualized injury which would create a case or controversy between him and defendants cognizable under Article III or give him standing to sue. The inclusion of the case or controversy requirement in Article III, and indeed the very language of Article III,³ indicate that the Framers did not intend that the courts be dragged into disputes over public policy absent some concrete reason for judicial intervention. Otherwise, every citizen, whether or not that citizen suffered specific harm, could challenge almost every governmental activity; this would tend to place the judiciary in the inappropriate role of exercising generalized supervision over the legislative and executive branches. It would create practical difficulties for the courts and would promote undue judicial interference with legitimate governmental activity.⁴

These textual, prudential and precedential considerations are buttressed by the reality that toll charges and uses of toll proceeds are more or less ordinary grist for the mill of democratic political controversy.⁵ Motorists are hardly a discrete and insular minority who have been denied the right to vote or who are routinely outvoted and hence particularly subject to oppression. There is no reason to exercise enhanced scrutiny of dispositions to their disadvantage under broadly phrased constitutional provisions. See United States v. Carolene Products Co., 304 U.S. 144, 152-53 n. 4, 58 S.Ct. 778, 783-84 n. 4, 82 L.Ed. 1234 (1938); City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Powell, Carolene Products Revisited, 82 Colum.L.Rev. 1987 (1982); Dowling, The Methods of Mr. Justice Stone in Constitutional Cases, 41 Colum.L.Rev. 1160 (1941). Thus there is no claim in this case that interstate commerce has been unreasonably burdened by actions taken by the Authorities affecting out of state interests not represented by the state's elected officials. See Southern Pacific Co. v. Arizona, 325 U.S. 761, 767-68 n. 2, 65 S.Ct. 1515, 1519 n. 2, 89 L.Ed. 1915 (1945). Nor is there any claim that plaintiff has personally suffered injury.

Nor, despite plaintiff's citation to the First Amendment guarantee of freedom of assembly, is there any indication of inhibition of any specific efforts to assemble or of any constraint on the right to speak, to make views known to elected representatives, or to vote one's convictions.

Under these circumstances, the political branches of government — the executive and the legislative — provide the appropriate fora for exploration of plaintiff's complaints.

Plaintiff, seemingly aware of the realities, seeks to sidestep them by pointing to the non-elected nature of the management of the two defendant Authorities. Plaintiff has apparently not, however, succeeded in convincing the responsible elected state officials that the policies or structure of the Authorities should be changed in the ways he proposes. If he and others were to do so and the state were then unable to effect its will, a different question might be presented.⁶

IV

The Eleventh Amendment barrier to direct suit by citizens against a state, referred to by Judge Duffy in dismissing 91 Civ. 3372, is based on longstanding albeit nontextual judicial interpretation of that Amendment as creating state sovereign immunity; literally, the Eleventh Amendment merely bars invocation of diversity of citizenship jurisdiction to permit a citizen of one state to sue another state. See generally Gibbons, The Eleventh Amendment and State Sovereignty: A Reinterpretation, 83 Colum.L.Rev. 1889 (1983). The Eleventh Amendment barrier can be overcome in several ways, including (a) consent on the part of the state, as in Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 110 S.Ct. 1868, 109 L.Ed.2d 264 (1990),⁷ (b) abrogation of the immunity by Congress pursuant to one of its constitutionally granted powers, as in Hilton v. South Carolina Public Railways Comm'n, ___ U.S. ___,...