A judge in the Supreme Court, Queens County has challenged the constitutionality of The Transportation Equity Act of 2005 " in particular, the federal governments preemption of New York State law with respect to vicarious liability.

In his decision, Justice Thomas V. Polizzi asserted that Congress did not have the authority to preempt state law because, in the instance of vicarious liability, the Tenth Amendment " which states that [t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people " should trump the Supremacy Clause " which provides that the laws of the United States shall be the supreme law of the landanything in the constitution or the law of any state to the contrary notwithstanding. His reasoning was that the federal preemption was an improper application of the Commerce Clause of the United States Constitution, Article I, Section 8.

This ruling applies only in Queens County, the jurisdiction of the court.

In the case at hand, plaintiff, Sharon Graham, alleged that she suffered personal injuries as a result of a motor vehicle accident that occurred at or near the intersection of Linden Boulevard and 195th Street, Queens County, New York, on June 17, 2005. Rayon S. Dunkley was the driver of the offending vehicle, and Nissan Infiniti, LT (NILT) was the registered owner of the vehicle. NILT Inc. submitted an affidavit of Warren York, manager of the regional collections department, who confirmed that NILT was the lessor of the vehicle at the time of the accident. Plaintiff filed a summons and verified complaint on March 16, 2006, and service of process was thereafter made upon Rayon S. Dunkley, and upon NILT, Inc.

NILT Inc. made a pre-answer motion for dismissal of plaintiffs tort action and all cross claims, stating that, according to Article 6 of the United States Constitution (the Supremacy Clause), the Transportation Equity Act of 2005 (49 USC 30106), signed into law in August of 2005, expressly preempts New York State Vehicle and Traffic Law section 388, which imposes vicarious liability upon owners of motor vehicles for negligent acts of permissive users of vehicles.

Polizzis Premise

Polizzi began by noting that four state courts and one federal court have all concluded that the Transportation Equity Act of 2005 preempts state vicarious liability laws. However, Polizzi claimed that [t]he case law concerning 49 USC 30106 has heretofore looked no further than the Supremacy Clause in its analysis, and has not addressed the issue whether a court of original jurisdiction may inquire whether Congress has legislated within the scope of powers traditionally reserved to New York State by the United States Constitution, and by doing so has expropriated any part of New York States authority to legislate the same subject matter.

He asserted, Although the text of the Supremacy Clause and established precedent make explicit the charge for judicial enforcement where Congress has preempted state law by express terms, this court must consider if it has jurisdiction to examine whether the powers reserved to New York State, pursuant to the Tenth Amendment of the United States Constitution, include New York States ability to legislate the scope of vicarious liability within the particular jurisprudence of civil tort law, free from arrogation by the federal government.

Defining the State Law

Speaking to New York State Vehicle and Traffic Law section 388, Polizzi said, The purposes of the statute are to ensure injured plaintiffs that there will be a financially responsible party to provide compensation for negligent driving.

In fact, the New York State Legislature and the courts of this state have recognized that this state has a grave concern in affording recompense to innocent victims of motor vehicle accidents for the financial loss inflicted upon them.

Proposed legislation that would amend the Vehicle and Traffic Law section 388 to limit a lessors liability in the New York State Senate (2005 N.Y. Senate Bill S4192) and the New York State Assembly (2005 N.Y. Assembly Bill A10592) has not been reconciled by the two houses and passed into law.

Federal Preemption

In describing how the federal government may preempt state law, Polizzi said, Pursuant to the Supremacy Clause, state law may be preempted in three circumstances:

First, through express statutory language;

Second, where federal law has so thoroughly occupied a legislative field as to make a reasonable inference that there is no room for the state to supplement it;

And third, where a state law conflicts with a federal law.

Polizzi added, There is a strong presumption against preemption, particularly with regard to laws that affect the states historic police powers over the health, safety, and welfare of its residents.

He added, This court shallendeavor to determine whether the Transportation Equity Act of 2005was enacted within the powers delegated to Congress by the Constitution, or whether it intrudes on powers reserved to New York State. In doing so, this court is mindful that if the power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to New York State, but if a power is an attribute of New York State sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress.

To determine this, Polizzi next analyzed Article 1, Section 8, of the United States Constitution (the Commerce Clause) to see if the Transportation Equity Act of 2005 falls within Congress power under that clause.

The Commerce Clause

Polizzi said, The Commerce Clause of the United States Constitution grants to Congress the power to regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes.

Noting that the United States Supreme Courts interpretation of the Commerce Clause has changed over the years, he stated, Presently, the United States Supreme Court has identified three categories of activity that Congress may regulate under its commerce power:

First, Congress may regulate the use of the channels of interstate commerce;

[S]econd, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may only come from intrastate activities;

And third, Congress commerce authority includes the power to regulate those activities having a substantial relation to interstate commercei.e., those activities that substantially affect interstate commerce (Hodel v. Virginia Surface Mining & Reclamation Assn., Inc. [1981]; Perez v. United States [1971]).

Unconstitutional Exercise of Congressional Authority

Polizzi concluded that vicarious liability does not fall under the Commerce Clause. He said, Vehicle and Traffic Law section 388 is a statute that defines the scope of vicarious liability as part of the substantive law of torts, and it has nothing to do with commerce.

He also asserted, This court cannot conclude that Vehicle and Traffic Law section 388 has a substantial affect on interstate commerce, or that there is a rational basis for 49 USC 30106.

Polizzi continued, This court holds that New York State Vehicle and Traffic Law section 388 is a legislative act within the New York State Legislatures inherent authority pursuant to the United States Constitution, Tenth Amendment, and that 49 USC 30106 is an unconstitutional exercise of congressional authority under the Commerce Clause of the United States Constitution, Article 1, Section 8.

Polizzi also made clear his views on vicarious liability as a concept, stating, While the courts decision is strictly limited to the facts of this case, this court can not wholly exempt a corporate class of tortfeasor from liability to otherwise innocent men, women, and children, who seek recompense in the courts of the State of New York when they become sick, seriously injured, permanently maimed or even killed, directly as result of a dangerous instrumentality owned by that corporate class of tortfeasor who is doing business in the State of New York and subject to the laws of the State of New York, unless otherwise directed by the New York State Legislature.

Analysis

Lawrence N. Rogak " of Lawrence N. Rogak LLC, an insurance defense law firm, and also an Insurance Advocate columnist " responded to the case in the form of an essay posted on The Rogak Report, and he predicted that this decision will likely be overturned upon appeal.

He wrote, There is a cacaphony of cognitive dissonance here. New York is a famously liberal bastion of federalism. 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.