In the Matter of KEVIN B. ACEVEDO, Appellant, v NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES et al., Respondents. In the Matter of MICHAEL W. CARNEY, Appellant, v NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES et al., Respondents. In the Matter of CARALYN A. MATSEN, Appellant, v NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES et al., Respondents.
Court of Appeals of the State of New York
Argued March 23, 2017; decided May 9, 2017
[77 NE3d 331, 54 NYS3d 614]
GARCIA, J.
Gerstenzang, O‘Hern, Sills & Gerstenzang, Albany (Eric H. Sills of counsel), for appellant in the first above-entitled proceeding and action.
Eric T. Schneiderman, Attorney General, Albany (Jeffrey W. Lang, Barbara D. Underwood, Andrea Oser and Jonathan D. Hitsous of counsel), for respondents in the first above-entitled proceeding and action.
Eric T. Schneiderman, Attorney General, Albany (Jeffrey W. Lang, Barbara D. Underwood, Andrea Oser and Jonathan D. Hitsous of counsel), for respondents in the third above-entitled
GARCIA, J.
Following their most recent drunk driving convictions—the third for petitioners Kevin B. Acevedo and Caralyn A. Matsen, and the sixth for petitioner Michael W. Carney—petitioners’ driver‘s licenses were revoked pursuant to the Vehicle and Traffic Law. Petitioners’ relicensing applications were subsequently denied pursuant to recent amendments adopted by respondent New York State Department of Motor Vehicles (DMV), which govern the relicensing of recidivist drunk driving offenders.1 Petitioners now challenge the validity of those regulations and seek restoration of their driving privileges.
For the reasons set forth below, we reject petitioners’ challenges and affirm.
I.
“The carnage caused by drunk drivers is well documented” and “occurs with tragic frequency on our Nation‘s highways” (South Dakota v Neville, 459 US 553, 558 [1983]). “Drunk drivers take a grisly toll on the Nation‘s roads, claiming thousands of lives, injuring many more victims, and inflicting billions of dollars in property damage every year” (Birchfield v North Dakota, 579 US —, —, 136 S Ct 2160, 2166 [2016]). In New York alone, alcohol-related motor vehicle accidents are responsible for more than 300 deaths—nearly 30% of fatal crashes—and over 6,000 injuries each year (NY Reg, Mar. 13, 2013 at 43).
An alarming percentage of these tragedies involve recidivist offenders. In 2010, for instance, 28% of the alcohol-related crashes resulting in injury involved a driver with three or more drunk driving convictions (id.). Approximately 17,500 drivers
Statutory Background
To combat this persistent threat to public safety, the legislature has enacted a statutory scheme that criminalizes drunk driving (
The Vehicle and Traffic Law mandates “[p]ermanent revocation” for certain recidivist offenders—for instance, those who have three drunk driving convictions in four years, or four drunk driving convictions in eight years (
As a general matter, once an offender‘s license has been revoked—permanently or otherwise—reissuance of a new license is subject to the discretion of the Commissioner of the DMV (
Regulatory Scheme
The Vehicle and Traffic Law authorizes the Commissioner to, “[s]ubject to and in conformity with the provisions of the vehicle and traffic law[,] . . . enact, amend and repeal rules and regulations which shall regulate and control the exercise of the powers of the [DMV] and the performance of the duties of officers, agents and other employees thereof” (
The Commissioner first promulgated regulations to address post-revocation relicensing in 1980. Those regulations specified that DMV would decline to issue a new license to an applicant who had (i) a “history of abuse of alcohol or drugs . . . with insufficient evidence of rehabilitative effort” (15 NYCRR former 136.4 [a] [2]), or (ii) accumulated 25 or more “negative units“—corresponding to certain Vehicle and Traffic Law violations—within the three years immediately preceding the application (15 NYCRR former 136.4 [a] [3]; former 136.1 [b] [6]).
DMV has amended the 1980 regulations a number of times over the years—including in 1982, 2006, and 2011. In 2011, for instance, the regulations were amended to provide that, in considering relicensing applications, DMV would evaluate an applicant‘s “entire driving history” for purposes of determining whether the applicant was a “problem driver” who created “an unusual and immediate risk upon the highways” (15 NYCRR former 136.1 [b] [1]). If so, DMV would deny the application and decline to consider a further application for one year following the denial (15 NYCRR former 136.4 [b]).
According to DMV, the 2011 amendments remained inadequate to address the safety risk posed by recidivist drunk drivers, and DMV‘s statistics indicated that a small number of relicensed recidivist drunk drivers remained responsible for a
The amendments at issue in these appeals (the Regulations) were adopted as emergency regulations in September 2012 and took effect immediately. In relevant part, the Regulations provide that, “[u]pon receipt of a person‘s application for relicensing, the Commissioner shall conduct a lifetime review of such person‘s driving record” (
For applicants currently revoked for an alcohol- or drug-related driving conviction or incident with “three or four alcohol- or drug-related driving convictions or incidents in any combination within the 25 year look back period but no serious driving offenses within the 25 year look back period,” the Regulations provide that the Commissioner “shall deny the application for at least five years” in addition to the minimum statutory revocation period (
“the Commissioner may in his or her discretion approve the application, provided that upon such approval, the Commissioner shall impose the A2 restriction on such person‘s license for a period of five years and shall require the installation of an ignition interlock device in any motor vehicle owned or operated by such person for such five-year period” (
15 NYCRR 136.5 [b] [3] [ii] ).
An A2 restricted license is limited to operation to and from specified destinations—for instance, “the holder‘s place of employment or education” (see 15 NYCRR 135.9 [b]; 3.2 [c] [4]).
The Commissioner is expressly permitted to “deviate from the general policy” set forth in the Regulations “in the exercise of discretionary authority granted” under the Vehicle and Traffic Law (
Petitioners’ Challenges
Petitioners’ driver‘s licenses were revoked pursuant to
Petitioner Kevin Acevedo was convicted of three drunk driving offenses between 2003 and 2008. Each time, his license was revoked. Acevedo‘s most recent conviction triggered a one-year statutory revocation period, after which he applied for relicensing for the third time, in October 2011. In February 2012, Acevedo received a letter from DMV indicating that he had been approved to apply for a driver‘s license, subject to passing written and road tests. Three days later, DMV withdrew its approval and notified Acevedo that his application would be subjected to additional review. Eventually, in November 2012, Acevedo‘s application was denied pursuant to the Regulations; under
Petitioner Michael Carney has been convicted of six drunk driving offenses. Following his most recent conviction in 2011,
Petitioner Caralyn Matsen accumulated three drunk driving convictions between 2000 and 2010. She also received 12 points on her driving record based on two separate speeding incidents in 2004. In March 2012—following her 2010 drunk driving conviction and a one-year statutory revocation period—Matsen again applied for relicensing. DMV initially held her application in abeyance, and then in November 2012, Matsen‘s application was denied pursuant to
Petitioners appealed the denial of their respective relicensing applications to the Administrative Appeals Board, which affirmed DMV‘s denial of their applications. Petitioners then filed the instant suits, challenging the lawfulness of the Regulations as well as the application of the Regulations to each petitioner‘s relicensing application. Supreme Court dismissed each proceeding, and petitioners appealed.
The Appellate Division affirmed each case in split decisions (Matter of Acevedo v New York State Dept. of Motor Vehs., 132 AD3d 112 [3d Dept 2015]; Matter of Carney v New York State Dept. of Motor Vehs., 133 AD3d 1150 [3d Dept 2015]; Matter of Matsen v New York State Dept. of Motor Vehs., 134 AD3d 1283 [3d Dept 2015]). The Appellate Division panels determined that DMV did not exceed its regulatory authority because it “did not act on its own ideas of public policy, but rather implemented the Legislature‘s policies of promoting highway safety” (Acevedo, 132 AD3d at 119), and because the Regulations represented “an appropriate discretionary determination by the Commissioner” (Carney, 133 AD3d at 1152-1153). The Court also held that the Regulations do not conflict with the Vehicle and Traffic Law, and that they were not impermissibly applied retroactively to petitioners’ applications.
The dissenting Justices—two in Acevedo and Carney, and one in Matsen—argued that the Commissioner “exceeded the
II.
Initially, DMV contends that petitioners lack standing to the extent that they challenge provisions of the Regulations that are inapplicable to their respective relicensing applications. A court can act “only when the rights of the party requesting relief are affected” (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772 [1991]), and therefore a controversy is not justiciable unless the party requesting relief has “an interest sufficient to constitute standing to maintain the action” (American Ins. Assn. v Chu, 64 NY2d 379, 383 [1985]). Each petitioner must therefore show the existence of an “injury in fact” in order to demonstrate that he or she has “an actual legal stake in the matter being adjudicated” (Society of Plastics Indus., 77 NY2d at 772). To constitute an injury in fact, petitioners’ claimed harm must be “direct and immediate” such that it cannot be “prevented or significantly ameliorated by . . . administrative action or by steps available to the complaining party” (Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510, 520 [1986]).
A.
Plainly, petitioners will not incur any harm—let alone any direct or immediate harm—as a result of those provisions of the Regulations that are not applicable to their respective relicensing applications. Accordingly, each petitioner has standing only to challenge those aspects of the Regulations that are triggered by his or her application.
Collectively, however, petitioners have standing to challenge the most salient provisions of the Regulations implicated by these appeals: petitioner Carney has “five or more” drunk driving offenses and is subject to a lifetime denial (
B.
With respect to petitioner Acevedo, DMV further contends that his appeal is entirely nonjusticiable, even with respect to
Accordingly, we review petitioner Carney‘s challenge to
III.
Turning to the merits, petitioners raise a number of challenges to the Regulations, arguing that the Regulations (i) conflict with statutory provisions of the Vehicle and Traffic Law; (ii) violate the separation of powers doctrine; (iii) are arbitrary and capricious; and (iv) were improperly applied retroactively to petitioners’ relicensing applications.
Statutory Conflict
Petitioners argue that the Regulations conflict with the Vehicle and Traffic Law, and because an agency may not adopt regulations that are “inconsistent with . . . statutory language” (Matter of General Elec. Capital Corp. v New York State Div. of Tax Appeals, Tax Appeals Trib., 2 NY3d 249, 254 [2004]), the Regulations cannot stand. We disagree.
Petitioners’ statutory conflict argument relies on the flawed premise that an offender is entitled to relicensing under the Vehicle and Traffic Law upon expiration of the statutory revocation period. Rather, the Vehicle and Traffic Law expressly provides that the statutory revocation periods are “minimum” time periods during which an offender‘s driver‘s license must remain “revoked” (
We similarly reject petitioners’ contention that
Petitioners also argue that the Commissioner has contravened her statutory mandate to exercise discretion on a case by case basis by adopting hard and fast rules that are waivable only under limited circumstances. But contrary to petitioners’ claim, the Commissioner does not abdicate her discretion by formalizing it. By promulgating rules to govern relicensing, the Commissioner ensures that her discretion is exercised consistently and uniformly, such that similarly-situated applicants are treated equally. The Regulations also provide notice to the public concerning the Commissioner‘s general practices with regard to relicensing. And in any case where the presumptive provisions of the Regulations are, in the Commissioner‘s discretion, inappropriate in light of “unusual, extenuating and com-
Nor do the look back periods contained in the Regulations conflict with any shorter look back period prescribed by statute. For instance,
Separation of Powers
Petitioners next contend that the Regulations amount to legislative policymaking—not administrative rulemaking—in violation of the separation of powers doctrine. “[T]he separation of powers doctrine gives the Legislature considerable leeway in delegating its regulatory powers” to an administrative agency to “administer the law as enacted by the Legislature” (Boreali v Axelrod, 71 NY2d 1, 9-10 [1987]). As a “creature of the Legislature,” an agency “is clothed with those powers expressly conferred by its authorizing statute, as well as those required by necessary implication” (Matter of City of New York v State of N.Y. Commn. on Cable Tel., 47 NY2d 89, 92 [1979]). To that end, an agency is permitted to adopt regulations that go beyond the text of its enabling legislation, so long as those regulations are consistent with the statutory language and underlying purpose (Matter of General Elec. Capital Corp., 2 NY3d at 254).
The scope of authority delegated to the Commissioner, particularly with regard to licensing, is broad. The Commissioner has the express authority to issue driver‘s licenses (
With respect to license revocation and reissuance, the Vehicle and Traffic Law confers discretionary authority on the Commissioner in a number of ways. For instance, following a permanent license revocation, the Commissioner may refuse to restore an applicant‘s license “in the interest of the public safety and welfare,” even if the applicant is otherwise qualified for a permanent revocation waiver (
But no matter how facially broad, the legislature‘s grant of authority “must be construed, whenever possible, so that it is no broader than that which the separation of powers doctrine permits” (Boreali, 71 NY2d at 9). We have made clear that the legislature “cannot cede its fundamental policy-making responsibility to an administrative agency” (id.). Nor may an agency use its enabling statute “as a basis for drafting a code embodying its own assessment of what public policy ought to be” (id.). To be sure, “it is the province of the people‘s elected representatives, rather than appointed administrators, to resolve difficult social problems by making choices among competing ends” (id. at 13).
Our separation of powers analysis is guided by the four factors set forth in Boreali v Axelrod (71 NY2d 1 [1987]). These four factors—or “coalescing circumstances“—are not “discrete, necessary conditions that define improper policymaking by an agency,” nor are they “criteria that should be rigidly applied in every case in which an agency is accused of crossing the line into legislative territory” (Matter of New York Statewide Coalition of Hispanic Chambers of Commerce v New York City Dept. of Health & Mental Hygiene, 23 NY3d 681, 696 [2014]). Rather, the factors are related considerations, designed to ascertain whether an agency has transgressed the bounds of permissible rulemaking (id. at 696-697).
A.
The first Boreali factor examines whether the agency merely “balanc[ed] costs and benefits according to preexisting guidelines,” or instead made “value judgments entail[ing] dif-
But the ultimate aim of the Regulations—the legislative policy goal—is both well-established and widely shared: protecting the public from the dangers of recidivist drunk driving. The legislature, not DMV, made a value judgment between competing ends, concluding that public safety may outweigh the licensing interests of recidivist drunk driving offenders. The legislature has also expressed a clear intention to delegate broad authority to DMV to decide post-revocation relicensing applications, leaving all reissuance determinations subject to the “discretion of the commissioner” (
Moreover, to the extent the Commissioner chose among competing ends in enacting the Regulations, those choices were not very difficult or complex, given their direct connection to public safety (see Matter of New York Statewide Coalition of Hispanic Chambers of Commerce, 23 NY3d at 699). Given the widespread acceptance of their underlying ends, the Regulations do not “raise difficult, intricate, and controversial issues of social policy” (id.). Nor do they interfere with matters of personal autonomy; although driving may implicate a “commonplace daily activit[y] preferred by large numbers of people” (Greater N.Y. Taxi Assn., 25 NY3d at 612), drunk driving—the problem targeted by the Regulations—does not.
B.
The second Boreali factor considers whether the agency wrote on “a clean slate, creating its own comprehensive set of
Here, by contrast, in enacting
C.
Pursuant to the third Boreali factor, we assess “whether the legislature has unsuccessfully tried to reach agreement on the issue, which would indicate that the matter is a policy consideration for the elected body to resolve” (Greater N.Y. Taxi Assn., 25 NY3d at 611-612). Petitioners first argue that the
Even accepting petitioners’ claim that the legislature has repeatedly tried to reach agreement in this field, the dearth of successful legislation affords limited probative value in our analysis. As we have repeatedly noted, “[l]egislative inaction, because of its inherent ambiguity, affords the most dubious foundation for drawing positive inferences” (Matter of Oswald N., 87 NY2d 98, 103 n 1 [1995], quoting Clark v Cuomo, 66 NY2d 185, 190-191 [1985]). Nor does “the mere fact that the Legislature has enacted specific legislation in a particular field” necessarily indicate that “broader agency regulation of the same field is foreclosed” (Matter of Consolidated Edison Co. of N.Y. v Department of Envtl. Conservation, 71 NY2d 186, 193 [1988]).
Notably, DMV has been regulating in the realm of post-revocation relicensing since 1980. In the ensuing decades, the legislature—though fully capable of corrective action—has done nothing to curb the Commissioner‘s authority or otherwise signal disapproval. To the contrary, the legislature has, for nearly 40 years, left the Commissioner‘s authority intact, demonstrating the legislature‘s ongoing reliance on DMV‘s expertise. Given the absence of any legislative interference over this extended time period, “we can infer, to some degree, that the legislature approves” of the Commissioner‘s actions (Greater N.Y. Taxi Assn., 25 NY3d at 612).
D.
The fourth and final Boreali factor concerns whether any “special expertise or technical competence” was involved in the development of the challenged Regulations (Boreali, 71 NY2d at 14). Both highway safety (
Invoking its expertise, the Commissioner tightened relicensing requirements in order to target these high-risk, recidivist offenders. By categorizing drunk driving offenders based on a review of their driving history, the Regulations ensure consistent treatment of relicensing applicants in a manner commensurate with the risk that they pose to the public. And by implementing relicensing guidelines aimed at promoting highway safety, the Regulations operate squarely within DMV‘s area of expertise.
On balance, the Boreali factors overwhelmingly weigh in favor of DMV. Though the line between administrative rulemaking and legislative policymaking may be “difficult to define” (Boreali, 71 NY2d at 11), here, the Regulations fall squarely within the bounds of valid administrative action. The legislature delegated clear authority to the Commissioner over post-revocation relicensing applications and, in enacting the Regulations, the Commissioner acted squarely within the confines of that authority. Boreali is not “an escape hatch for those“—like petitioners—“who are unhappy with a regulation” (Matter of New York Statewide Coalition of Hispanic Chambers of Commerce, 23 NY3d at 718 [Read, J., dissenting]). Accordingly, we hold that the Regulations were a valid exercise of the Commissioner‘s rulemaking authority, consistent with the separation of powers doctrine. We reject petitioners’ claim to the contrary.
Rationality
Petitioners next contend that the Regulations are arbitrary and capricious, and therefore cannot withstand rational basis scrutiny. Petitioners’ rationality challenge focuses on the meaning of “[s]erious driving offense” (
“The standard for judicial review of an administrative regulation is whether the regulation has a rational basis and is not unreasonable, arbitrary or capricious” (Matter of Consolation Nursing Home v Commissioner of N.Y. State Dept. of Health, 85 NY2d 326, 331 [1995]). To meet this “limiting” standard,
Petitioners fail to meet this heavy burden.
A.
Petitioner Matsen argues that the definition of “serious driving offense” (
In formulating the Regulations, DMV “deliberated extensively about how to restrict the driving privileges of persons who are eligible for relicensure but who might continue to present highway safety concerns” (NY Reg, Mar. 13, 2013 at 46). Among other things, DMV considered its own collection of empirical data, including statistics pertaining to drunk driving offenders and other high-risk relicensing applicants (
B.
Petitioners Acevedo and Carney next challenge the Regulations’ definition of “alcohol- or drug-related driving conviction or incident” (
Contrary to petitioners’ claim, the definition of “alcohol- or drug-related driving conviction or incident” is not “so lacking in reason” that it is “essentially arbitrary” (Kuppersmith, 93 NY2d at 96). The exclusion of youthful offender violations, for instance, reflects a reasonable determination by the Commissioner that, unlike other drunk driving offenders, a youthful offender‘s conduct—although serious—may be largely attributable to the offender‘s age and immaturity at the time of the incident (see People v Drayton, 39 NY2d 580, 584 [1976]). Similarly, the Commissioner‘s exclusion of certain felony convictions, such as first-degree aggravated unlicensed operation of a motor vehicle (
Because the Regulations have a sound and reasonable basis, petitioners’ rationality challenge must be rejected.
Retroactivity & Ex Post Facto
Lastly, petitioners argue that the denial of their relicensing applications constitutes an impermissible retroactive application of the Regulations and a violation of the Ex Post Facto Clause of the United States Constitution (
While New York law does not favor retroactive operation, the Regulations were not impermissibly applied retroactively
For the same reason, we reject petitioners’ contention that the Regulations, as applied to their applications, constitute a violation of the Ex Post Facto Clause of the United States Constitution (Forti, 75 NY2d at 610 n 4; Matter of St. Clair Nation, 14 NY3d at 458 n 3). In any event, “[t]he prohibition on ex post facto laws” is inapplicable, as it “applies only to penal statutes” (Kellogg v Travis, 100 NY2d 407, 410 [2003]). The “revocation of the privilege of operating a motor vehicle“—and by extension, the denial of the privilege of relicensing—is “essentially civil in nature,” as it serves primarily to “protect[ ] . . . the public from such a dangerous individual” (Matter of Barnes v Tofany, 27 NY2d 74, 78 [1970]). Because they “do[ ] not seek to impose a punishment,” the Regulations “do[ ] not run afoul of the Ex Post Facto Clause” (Kellogg, 100 NY2d at 410).
We therefore reject petitioners’ argument that the Commissioner‘s consideration of conduct that occurred before the promulgation of the Regulations constituted retroactive application.
IV.
The lower courts properly upheld the Regulations—and their application to petitioners’ relicensing applications—as a valid exercise of the Commissioner‘s delegated authority. Accordingly, in Matter of Acevedo and Matter of Carney, the order of the Appellate Division should be affirmed, without costs; and in Matter of Matsen, the order of the Appellate Division should
In Matter of Acevedo v New York State Dept. of Motor Vehs. and Matter of Carney v New York State Dept. of Motor Vehs.: Order affirmed, without costs.
Opinion by Judge GARCIA. Chief Judge DIFIORE and Judges RIVERA, FAHEY and WILSON concur. Judge STEIN taking no part.
In Matter of Matsen v New York State Dept. of Motor Vehs.: Order affirmed, without costs, and certified question not answered as unnecessary.
Opinion by Judge GARCIA. Chief Judge DIFIORE and Judges RIVERA, FAHEY and WILSON concur. Judge STEIN taking no part.