As most New York practitioners know already, Justice Polizzi (Supreme Court, Queens County) in Graham v. Dunkley held that that the Transportation Equity Act of 2005 was unconstitutional (see prior post). As stated in the decision, the Act intends to preempt all state statutes to the extent that they hold those owners in the business of renting or leasing motor vehicles vicariously liable for the negligence of drivers, except when there is negligence or criminal wrongdoing on the part of the owner. In New York, the Act implicates Vehicle and Traffic Law sec. 388. That part of the Act which impacts sec. 388 is known as the Graves Amendment.
Notably, several cases decided subsequent to Graham have addressed some aspect of the applicability of the Act, recognizing that the Graves Amendment preempts state law. For example,
the Appellate Division, Second Department in Jones v. Bill discussed whether the relation-back doctrine applied in action that concerned the applicability of the Graves Amendment. The Second Department did not discuss the constitutionality of the Graves Amendment, nor did it acknowledge Graham. In fact, my reading of the appellate briefs revealed that neither party raised the constitutional issue.
The Appellate Division, Fourth Department in Williams v. White cited Jones v. Bill, and concerned a similar relation-back issue regarding the Graves Amendment. The Fourth Department also ignored the Graham decision.
Perhaps the most surprising is another Queens County Supreme Court Justice ignored the Graham decision and applied the Graves Amendment -- Infante v. U-Haul Co. of Fla.
What do these subsequent decisions say about the currency of Graham's precedential value? Seems to me that New York courts are just ignoring the Graham decision and treating it like an anomaly. We'll just have to see what the Second Department is going to do when it decides the Graham appeal.
This was my view of Graham v. Dunkley, as published in "The Rogak Report" of 16 October 2006:
QUEENS COUNTY JUDGE, CITING STATES' RIGHTS, DECLARES LEASED VEHICLE LAW
UNCONSTITUTIONAL
On September 11, 2006, Queens County Supreme Court Justice Thomas V.
Polizzi ruled that the federal Transportation Equity Act of 2005 (49
USC 30106), which insulates the owners of leased vehicles from tort
liability, does not take precedence over New York's vicarious liability
law (Vehicle & Traffic Law section 388) -- and that as a consequence,
the owner of the leased vehicle involved in the suit (Sharon Graham v.
Rayon S. Dunkley and Nilt, Inc., Index no. 6123/2006, 2006 NY Slip Op
26358) is not immune from liability.
In his decision, Justice Polizzi examines the Commerce Clause of the
United States Constitution, as well as the Tenth Amendment, and comes
to the conclusion that the Transportation Equity Act is "an
unconstitutional exercise of congressional authority under the Commerce
Clause of the United States Constitution."
Can this Queens County judge hold a Federal statute unconstitutional
when Congress has clearly expressed its will to control a certain
aspect of commerce?
The issue brings to mind an incident in American history called
the "Nullification Crisis."
One major and continuous strain on the Union, from roughly 1820 through
the Civil War, was the issue of trade and tariffs. Heavily dependent
upon trade, the almost entirely agricultural and export-oriented South
imported most of its manufactured needs from Europe or obtained them
from the North. The North, by contrast, had a growing domestic
industrial economy that viewed foreign trade as competition. Trade
barriers, especially protective tariffs, were viewed as harmful to the
Southern economy, which depended on exports.
Toward the end of his first term in office, President Andrew Jackson
was forced to confront the state of South Carolina on the issue of a
protective tariff which had been passed by Congress. In 1828, the
Congress passed protective tariffs to benefit trade in the northern
states, but which were detrimental to the South. Southerners vocally
expressed their tariff opposition in documents such as the South
Carolina Exposition and Protest in 1828, written in response to
the "Tariff of Abominations," as they called it. Exposition and
Protest was the work of South Carolina senator John C. Calhoun,
formerly an advocate of protective tariffs and internal improvements at
federal expense.
Business and farming interests in the state had hoped that Jackson
would use his presidential power to modify tariff laws they had long
opposed. In their view, all the benefits of protection were going to
Northern manufacturers, and while the country as a whole grew richer,
South Carolina grew poorer, with its planters bearing the burden of
higher prices.
Another protective tariff passed by Congress and signed into law by
Jackson in 1832 was milder than that of 1828, but it further embittered
many in the state. In response, a number of South Carolina citizens
endorsed the states' rights principle of "nullification," which was
enunciated by John C. Calhoun, Jackson's vice president until 1832, in
his South Carolina Exposition and Protest of 1828. South Carolina dealt
with the tariff by adopting the Ordinance of Nullification, which
declared both the tariffs of 1828 and 1832 null and void within state
borders. The legislature also passed laws to enforce the ordinance,
including authorization for raising a military force and appropriations
for arms.
Nullification was only the most recent in a series of state challenges
to the authority of the federal government. There had been a continuing
contest between the states and the national government over the power
of the latter, and over the loyalty of the citizenry, almost since the
founding of the republic. The Kentucky and Virginia Resolutions of
1798, for example, had defied the Alien and Sedition Acts, and had
declared nullification to be the rightful remedy of the states for all
unauthorized acts done under the pretext of the Constitution. And in
the Hartford Convention, New England voiced its opposition to President
Madison and the war against the British.
The Kentucky Resolution, authored secretly by Thomas Jefferson and
James Madison, read as follows: "Resolved, that the several States
composing the United States of America, are not united on the principle
of unlimited submission to their general government; but that by
compact under the style and title of a Constitution for the United
States and of amendments thereto, they constituted a general government
for special purposes, delegated to that government certain definite
powers, reserving each State to itself, the residuary mass of right to
their own self-government; and that whensoever the general government
assumes undelegated powers, its acts are unauthoritative, void, and of
no force: That to this compact each State acceded as a State, and is an
integral party, its co-States forming, as to itself, the other
party....each party has an equal right to judge for itself, as well of
infractions as of the mode and measure of redress."
The Kentucky and Virginia Resolutions were the classic statement
of "States Rights" and became the bedrock principles of Jefferson's
Democratic-Republican Party. Those supporters, such as John Randolph,
who insisted loudest on states' rights, were called "Old Republicans"
into the 1820s and 1830s.
Another dispute occurred over the War of 1812. At the Hartford
Convention, New England states voiced opposition to President Madison
and the war, and discussed secession from the Union.
In response to South Carolina's threat, Jackson sent seven small naval
vessels and a man-of-war to Charleston in November 1832. On December
10, he issued a resounding proclamation against the nullifiers. South
Carolina, the president declared, stood on "the brink of insurrection
and treason," and he appealed to the people of the state to reassert
their allegiance to that Union for which their ancestors had fought.
Jackson, however, privately felt that South Carolina had a legitimate
grievance, and behind his show of force he encouraged the friends of
compromise, led by Henry Clay, to draft an ordinance which the
Southerners might accept.
When the question of tariff duties again came before Congress, it soon
became clear that only one man, Senator Henry Clay, the great advocate
of protection (and a political rival of Jackson), could pilot a
compromise measure through Congress. Clay's tariff bill -- quickly
passed in 1833 -- specified that all duties in excess of 20 percent of
the value of the goods imported were to be reduced by easy stages, so
that by 1842, the duties on all articles would reach the level of the
moderate tariff of 1816.
This compromise tariff was rushed through Congress, and after its
passage (1833) the South Carolina state convention reassembled and
formally rescinded the ordinance nullifying the tariff acts. To
preserve its prerogative it adopted a new ordinance nullifying the
force bill. But the issue was not pressed further until the election of
Abraham Lincoln, when the doctrine of secession was brought to the
foreground.
Nullification leaders in South Carolina had expected the support of
other Southern states, but without exception, the rest of the South
declared South Carolina's course unwise and unconstitutional.
Eventually, South Carolina rescinded its action. Both sides,
nevertheless, claimed victory. Jackson had committed the federal
government to the principle of Union supremacy. But South Carolina, by
its show of resistance, had obtained many of the demands it sought, and
had demonstrated that a single state could force its will on Congress.
Over the following decades, another dispute over states' rights moved
to the forefront. The issue of slavery polarized the union, with the
principles espoused by Thomas Jefferson often being cited by by both
anti-slavery Northerners and secessionists on the debates that
ultimately led to the American Civil War. Supporters of slavery often
argued that one of the rights of the states was the protection of slave
property wherever it went, a position endorsed by the Supreme Court in
the 1857 Dred Scott decision of the U.S. Supreme Court.
Jefferson Davis used the following argument in favor of the equal
rights of states, as opposed to the declaration that all men are
created equal:
Resolved, That the union of these States rests on the equality of
rights and privileges among its members, and that it is especially the
duty of the Senate, which represents the States in their sovereign
capacity, to resist all attempts to discriminate either in relation to
person or property, so as, in the Territories -- which are the common
possession of the United States -- to give advantages to the citizens
of one State which are not equally secured to those of every other
State.
The Preamble to the Confederate States Constitution begins: "We, the
people of the Confederate States, each State acting in its sovereign
and independent character..."
The term states' rights was used as a code word by last-ditch defenders
of segregation in the 1960s, such as the late Alabama Governor George
Wallace. Wallace frequently said that he should have stood in the
schoolhouse door saying, "States' rights now ... states' rights
tomorrow ... states' rights forever." In 1980, on the opening day of
the presidential campaign, Ronald Reagan said "I believe in states'
rights" at speech at Neshoba County fairgrounds near Philadelphia,
Mississippi, the scene of the murder of civil rights workers 16 years
before . At the same event, South Carolina Senator Strom Thurmond
declared: "We want that federal government to keep their filthy hands
off the rights of the states."
But the ground has shifted to general issues of federal versus state
power, especially to moral issues such as abortion, which some
conservatives want decided at the state level because they control
numerous states. Other conservatives hold the states' rights belief
that a government is better when closer to the population.
Current states' rights issues include the death penalty, assisted
suicide, gay marriage, doctor-assisted suicide, and the medical use of
marijuana, the last of which is in violation of federal law.
Therefore, for over 200 years, the doctrine of states' rights has been
employed principally by Southern states, most often in defense of
slavery and racial segregation, but sometimes in the name of economic
issues where a law that benefitted one part of the country harmed a
particular state or region -- again, the South.
But now, in what can only be described as a strange twist of legal
history, the doctrine of states' rights has been employed by Justice
Polizzi to nullify a Federal law designed to protect passive owners of
leased vehicles from liability for torts they did not commit, in order
to give more sources of recovery to persons injured in automobile
accidents who already have the protection of insurance policies that
are mandated by the vehicle owners themselves.
How odd, that a legal concept famously employed by Mississippi Governor
Ross Barnett in 1962 to keep James Meredith from registering as a
student at his State University, should be employed by a New York judge
to expand the range of pockets that can be opened to compensate auto
accident victims.
The states' rights concept that was argued to keep Rosa Parks from
sitting in the front seat of a public bus, is invoked in New York to
make leasing companies responsible for the negligence of drivers.
There is a cacaphony of cognitive dissonance here. New York is a
famously liberal bastion of federalism. This is the state where every
aspect of an individual's life -- what we smoke, what we eat, what we
wear when we ride a bicycle -- is considered fair game for Big Brother
to legislate here. New York is the ultimate exponent, on the East
Coast, anyway (not to be outdone by California) of Government-As-
Nanny.
Shoot, you can't even make a right turn on a red light in New York
City.
My cursory search of Westlaw finds that the Tenth Amendment to the U.S.
Constitution has been cited by New York State courts fewer than 57
times in over 200 years, and while I did not read every one of those
cases, none of the several that I did read involved declaring a Federal
law unconstitutional.
This ruling has no effect outside of Queens County, which is the
jurisdictional limit of the Supreme Court of Queens. I predict that,
if appealed, it will be handily reversed by the Appellate Division,
accompanied by a lengthy discourse on the Supremacy Clause. But for
now, this decision stands out as quite the oddity.
Larry Rogak
Posted by: Larry Rogak | March 21, 2007 at 12:45 PM