in the SUPREME court of THE UNITED STATES

John Padberg, Clifford Paolillo, and Rashid Ahmed, individually and on behalf of all others similarly situated,                      

Petitioners, 

-Against- 

DIANE MCGRATH-MCKECHNIE, RUDOLPH W. GIULIANI, JOSEPH MCKAY, MATTHEW DAUS, Harry Rubinstein, Elliot Sander, Harvey Giannoulis, Marvin Greenberg, Ramona Whaley, AND THE NEW YORK CITY TAXI AND LIMOUSINE COMMISSION,

Respondents

STATEMENT OF THE CASE

Petitioners are New York City taxi drivers who are among the hundreds whose commercial licenses were suspended without hearings and later revoked without lawful authority by the respondent New York City Taxi and Limousine Commission (the "TLC").  The TLC acted pursuant to a set of policies known as Operation Refusal.  In addition to the TLC, respondents are the then TLC chairwoman, its chief legal officers, its commissioners, and the city's Mayor.  This action was to declare the TLC's actions in violation of 42 U.S.C. § 1983, to gain return of the licenses, and for damages.

In order to operate a yellow taxi in the City of New York, a driver must have a valid taxi driver's license, also known as a hack license, which is issued by the TLC.  The TLC, pursuant to the terms of the New York City Charter and the City Administrative Code, regulates the taxi industry.  It is empowered to penalize drivers and other licensees, pursuant to city statute and its own regulations.  Ever since the TLC was founded in 1971, the Administrative Code, enacted by the City Council, has barred drivers from "refus[ing] without justifiable grounds, to take any passenger or prospective passenger to any destination within the city." N.Y.C. Admin. Code § 19-507 (a) (1989).

The same statute, § 19-507(b), determines the penalty for violations.  For the first offense, the penalty is a fine "not less than two hundred dollars or more than three hundred and fifty dollars." For the second offense within 24 months, the penalty is a fine of $350-to-$500 and a suspension "for a period not to exceed 30 days." For a third offense within 36 months, the penalty is revocation.  The TLC's own regulations mirror this statutory scheme.

In November 1999, however, a protest by the movie star Danny Glover, who complained that cabbies regularly bypassed him because he is black, precipitated a new policy.  After Glover's outcry gained national publicity, the TLC commenced a new policy, or set of policies, called "Operation Refusal."  The "summary suspension policy" (as the district court called it) dictated that any driver suspected of even a single service refusal would have his license suspended on the spot and his taxicab would be confiscated "for safekeeping."  The "revocation policy" dictated that, after a hearing, his license could be revoked on the first offense.  Neither policy called for proof that the alleged service refusal was racially motivated.

Petitioners, including cabbies whose licenses were suspended or revoked, sued.  On cross motions for summary judgment, the district court ruled on what it considered to be three distinct claims.  First, it held that the summary suspension policy violated the Federal Constitution and granted summary judgment to petitioners.  Second, it held that there was sufficient evidence to allow discovery on the claim that the TLC's own administrative law judges were systemically biased.  Third, it held that the revocation policy—while not necessarily legal—did not violate petitioners' civil rights.  Padberg v. McGrath-McKechnie, 203 F.Supp.2d 261 (E.D.N.Y. Apr 29, 2002).

The district court did not determine that the TLC's actions were lawful.  It held, rather, that the revocation policy was "arguably" within the agency's regulatory authority.  Even if the penalties were illegal, the district court held, "Substantive due process standards are violated only by conduct that is so outrageously arbitrary as to constitute a gross abuse of governmental authority." (A-36a)  Since the TLC's actions were not "conscience-shocking," "egregious," "arbitrary," or "outrageous," the district court granted summary judgment to respondents. (A-35-a-42a)  Respondents did not appeal the district court ruling as to the summary suspension policy or as to the judicial bias claim.

After the district court entered final judgment (except as to the judicial bias claim) petitioners appealed as to the revocation policy.  The Second Circuit affirmed by summary order.  Padberg v. McGrath-McKechnie, 60 Fed. Appx. 861 (2d Cir., Mar. 13, 2003) (A-1a).  Petitioners moved for a rehearing or a rehearing en banc. The Second Circuit denied the motion on April 23, 2003. (A-__)

The writ should be granted because the lower courts' holdings contradict and fundamentally misconstrue this Court's decisions with respect to 42 U.S.C. § 1983, which, at bottom, are to protect persons wronged by the misuse of power possessed by virtue of state law.  The decisions below also rely on dicta from this Court's "substantive due process" cases, applying it in way that disregards petitioners' well-established procedural rights and the democratic process.  Finally, by sanctioning illegal punishments, the decisions below permit a city agency to act in a lawless and draconian manner, depriving taxi drivers of their livelihoods, in spite of statutes written to protect them.  Ever since Monroe v. Pape, 365 U.S. 167 (1961), Section 1983 has been read to provide a federal remedy for such conduct.

1.  This action has its origins in November 1999 when Mr. Glover protested publicly that cabbies in New York tended to pass him by, thus refusing him, because he is black.  With racial issues a flashpoint, Mr. Glover's protest received massive publicity in New York and made the news as far away as Australia and India.  Though his complaint was longstanding—and no one denies it is legitimate and often true—the Mayor and the Chairwoman of the TLC reacted as never before.

The TLC announced a sting to ferret out drivers who refused service to passengers.  On November 10, in addition to on-the-spot license suspensions, the Mayor warned cabbies through the newspapers, "We will take your car away from you."  On the same day, the TLC issued a notice to drivers.  The notice, headlined "ATTENTION Medallion Taxicab Drivers," was posted at TLC offices and at taxi garages around the city.  It heralded the summary suspensions: "The driver's T.L.C. license will be confiscated and the taxicab will be removed to the nearest police precinct for safekeeping."  It also alerted drivers to the penalties "if a driver is found guilty of violating [TLC] Rule 2-50(a) or (b)," the TLC rules barring service refusals.  The penalties listed were those in the governing statute, the Administrative Code § 19-507(b):

1^ST Offense: $200- $350 fine;
2^nd Offense within 24 Months:
$350-$500 fine and possible suspension of up to 30 days;
3^rd Offense with [sic] 36 Months:
MANDATORY LICENSE REVOCATION

The next day, however, then TLC Chairwoman Diane McGrath-McKechnie sent a memorandum to "All Enforcement Personnel."  Headed "Operation Refusal Enforcement Directive," the directive required TLC agents to issue two summonses in all Operation Refusal cases.  The first summons was to be for refusal (TLC Rule 2-50(a) or (b)).  The second was to be for violating TLC Rule 2-61(a) (2), which proscribes in part "any willful act of omission or commission which is against the best interests of the public."  On February 18, 2000, the TLC's chief administrative law judge, Lisa Rana, issued a memorandum to all TLC administrative law judges: "Please be advised that, upon a finding of a refusal, the Commission's policy requires that both the Rule 2-50B and the Rule 2-61A2 violations be sustained." (emphasis added). The violation of the latter rule, the TLC would later argue, justified license revocation.[1]  

Neither the memorandum to enforcement personnel nor the order to judges was made public.  Neither decree was delivered to drivers.  Indeed, publicly, the city and the TLC emphasized the summary suspension policy, since held unconstitutional.  On November 14, for instance, the Mayor spoke to Operation Refusal in his weekly radio address: "I have directed the New York City Police Department and the Taxi and Limousine Commission to intensify their existing enforcement…. [A]nd when cabbies don't stop or otherwise refuse to do their job in compliance with the law, the officers will fine them, suspend their licenses, and take their cabs to a police precinct until it can be picked up."  The summonses issued to the drivers, while instructing them what must be done to retrieve their automobiles, likewise said nothing of the possibility of license revocation.  By the time the cases were tried, however, Ms. Rana's decree found its way into rulings by TLC judges.  According to Ms. Rana, not a single TLC judge failed to sustain a TLC Rule 2-61A2 along with the TLC Rule 2-50B violation.

The chairwoman's decree, as the district court noted, was applied to all types of service refusals whether or not allegedly based on race. (A-33a)  Although the policy was enforced in the name of the TLC, the full commission never approved it.  The full commission was never even called to vote despite a New York City Charter provision, requiring the TLC to create policy "by a majority of its members."  Indeed the commissioners other than the Chairwoman would, in time, explicitly reject the policy, albeit without any means to enforce their will.

2.  The TLC charged two of the named plaintiffs in this action with violating the rule against service refusals.  In both cases, the TLC confiscated the driver's cab and summarily suspended his license.  (The cars were retrievable by their owners.)  Mr. Ahmed, who was charged and suspended on December 2, 1999, appeared before a judge employed by the New York City Office of Administrative Trials and Hearings ("OATH"), a city agency that hears cases initiated by a variety of city offices.  The OATH judge held that the statutory scheme did not permit revocation. "Prior decisions of this tribunal have concluded there is a mandatory penalty scheme divined by the City Council for violation of the refusal rules," the judge wrote.  As this offense was Mr. Ahmed's first, and in the judge's view it was not racially motivated in any event, he recommended a fine of $300.00.  The Chairwoman failed to act on the recommendation for seven months and, pursuant to a procedural rule, after this action was commenced, the license was reinstated.

This OATH opinion in Mr. Ahmed's case was consistent with a dozen similar rulings; there were no rulings to the contrary. The TLC Chairwoman knew about them and later appealed by letter to the Chief OATH Judge Rose L. Rubin for reconsideration of all 13.  Judge Rubin denied the chairwoman's appeal, calling it “most unorthodox” and “misplaced.”  In response, as of January 1, 2000, the TLC altered its own rules so Operation Refusal cases would be brought before the TLC's own judges.  The independent OATH judges were removed from the process. 

Mr. Padberg, who was charged and suspended on February 15, 2000, appeared before a TLC judge.  As with all Operation Refusal cases, the testimony was by two TLC inspectors against the lone driver.  The TLC judge found him guilty of a service refusal and, on the same facts, stated, "It is the policy of the Commission that a finding of a service refusal is sufficient to establish that the respondent acted against the best interests of the public." The TLC judge, therefore, recommended revocation to the chairwoman.  She agreed and revoked Mr. Padberg's license.

Petitioners do not know how many cabbies Operation Refusal threw out of work.  The record, however, indicates that by November 22, 2000, 254 drivers were issued summons and summarily suspended pursuant to its strictures.  While the summary suspension policy has ended, the TLC says, it adheres to the revocation policy to this day.  Each of the city's 41,000 cabbies, mostly immigrant, unorganized, and politically voiceless, suffers under the in terrorem effect of this regime.

3.  Petitioners sued alleging that license suspensions without a hearing and revocations without statutory authority both constituted a denial of a valuable property right without due process of law.  On November 6, 2000, petitioners moved for summary judgment, and on December 4, respondents cross-moved.  With respect to the TLC's revocation policy—the only policy at issue here—petitioners made three central arguments.  First, the TLC lacked authority to enact Operation Refusal because the full commission never voted on or approved the policy, despite a City Charter requirement.  Second, the TLC administrative law judges, who are hired on a per diem basis and have no tenure or job security of any kind, and who took orders from a chief judge who answered to the Chairwoman, were systemically biased in their rulings on Operation Refusal cases.  Third, and most fundamentally, longstanding city statutes established the mandatory penalties applying to service refusals.  These statutes, and the TLC regulations which followed, clearly state that the penalty for a first refusal offense is a monetary fine and not license revocation (which could only be ordered on a third offense within 36 months).  In short, the TLC's new policy was illegal.

Petitioners pointed out that OATH judges, shortly after Operation Refusal was announced, issued a dozen or more decisions holding that the revocation policy violated clear City law.  As one OATH judge put it: "[D]espite the legitimate policy interests advanced by [the TLC]…the penalties for service refusals are set by law….  Section 19-507 (b) of the Administrative Code is a particular legal provision and controls here.  It does not permit license revocation for a first-time refusal offense."  Taxi and Limousine Commission v. Park, Oath Index No. 1014/00 (Feb. 2, 2000).  (These decisions, however, were non-binding recommendations to the TLC chairwoman, who was free to reject or modify them.)  Before the Second Circuit ruled, a state trial court and a small claims court reached the same conclusion as the OATH courts.  Matter of Arif v. New York City Taxi and Limousine Commission, 2002 WL 1559732 (N.Y.Co. 2002); Pierre-Lys v. New York City Taxi and Limousine Comm'n, 2002 WL 338187 (N.Y.C. Civ. Ct. 2002). 

On April 29, 2002, the district court denied petitioners' motion and granted the cross motion.  It held that suspending a license on a mere allegation without a hearing of any kind violated the Due Process Clause. It further held that there was sufficient evidence that TLC administrative judges were systemically biased to permit discovery.

As to the revocation policy, the district court determined, sua sponte, that "plaintiffs'… arguments advance substantive due process claims as opposed to procedural due process claims."[2]  In a decision remarkable for its near complete reliance on a label, it held: "[T]he protections of substantive due process are limited to government action that is 'arbitrary, conscience-shocking, or oppressive in a constitutional sense, but not against government action that is incorrect or ill-advised.'" quoting Lowrance v. Achtyl, 20 F.3d 529, 537 (2d Cir. 1994) (adding emphasis and omitting quotation marks and citations) (A-35a).  It rejected petitioners' claims that the revocation policy was void as it was not enacted by a majority of the TLC, as the Charter requires, because, "[the chairwoman's] action, even if unauthorized by the Charter, cannot be considered a 'gross abuse' of her power rising to the level of a constitutional violation." (A-36a) 

On the claim that the penalty imposed exceeded that authorized by law, the district court again invoked substantive due process.  It held: "Regardless of whether plaintiffs or defendants are correct in their interpretation of the law, plaintiffs' argument that defendants violated substantive due process by suspending and revoking their licenses for a first or second service refusal offense is unavailing.  As previously explained, substantive due process does not protect against government action that is merely 'incorrect or ill-advised.'" citing Lowrance, 20 F.3d at 537 (A-37a). 

The district court rested its ruling in part on the asserted good faith of the respondents: "Moreover, there is nothing to suggest that Chairperson McGrath-McKechnie or Mayor Giuliani were prompted to act by anything but legitimate motives … [in] pursuit of an otherwise legitimate government objective."  The district court added its view— unsupported by testimony or affidavits— that "[d]efendants were acting pursuant to authority that they believed they possessed in order to further the legitimate interest of eliminating racial discrimination among taxicab drivers." (A-42a)

In response to petitioners' motion, the district court entered a final judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, and petitioners appealed.  The Second Circuit affirmed by summary order. It held: "Because a reasonable, though arguably incorrect, interpretation of the city regulations supports the Chairwoman's actions, these actions were not 'arbitrary or irrational' and therefore do not give rise to a constitutional violation." citing Interport Pilots Agency, Inc. v. Sammis, 14 F.3d 133, 145 (2d Cir.1994) (A-3a).  Thus, neither the district court nor the Second Circuit ruled on whether or not the TLC policy was, put simply, against the law.  While the district court mentioned the OATH and state court decisions in passing, the Second Circuit ignored them altogether and neither mentioned the statements by the TLC commissioners. 

Petitioners moved for a rehearing on the grounds that the Second Circuit ruled on the basis of TLC regulations, not the statutes, which supersede them, and because it had never before applied substantive due process theory to express municipal policy as distinct from sporadic or unauthorized conduct. On April 23, 2003, the Second Circuit denied the petition. (A-__)

4.  This petition for a writ of certiorari followed.

REASONS FOR GRANTING THE WRIT

The decisions below labeling petitioners' claim "substantive due process" note that this Court has been wary of "expand[ing] the concept" and conclude that the concept should only apply to government action that is "'arbitrary, conscience-shocking, or oppressive in a constitutional sense, but not against government action that is incorrect or ill-advised." Lowrance v. Achtyl, 20 F.3d 529, 537 (2d Cir. 1994) (emphasis added).   Leaving aside whether deliberately illegal conduct might be arbitrary, even shocking, substantive due process is the wrong term, and it led the lower courts in the wrong direction.  Misbranding the claim, the decisions below conflict fundamentally with holdings of this Court in Section 1983 cases since Monell v. New York City Dep't of Soc. Services, 436 U.S. 658 (1978).  Even more basic, the decisions below ignore core constitutional principles of notice and due process reiterated by this Court as recently as last term in State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. __, 123 S.Ct. 1513 (2003).

I.    The Decisions Below Misunderstand Due Process, Which Requires Notice, Adherence to Law, and Faithfulness To the Democratic Process.

Despite the district court's appellation, petitioners' claims are, in fact, procedural.  Due process of law requires notice, a fair hearing, an unbiased tribunal, and a penalty (if any) that is sanctioned by law.  If, for example, a state judge were to impose a ten-year sentence for possession of marijuana where the maximum sentence is five years, no one would be heard to wonder whether the added penalty was egregious or outrageous.  No one would claim that the additional five-year punishment was "merely ill-advised" or that it could be justified by the judge's sincere belief that he was doing right.  The penalty would be unauthorized and thus it would violate both state law and the Constitution.  Apprendi v. New Jersey, 530 U.S. 466, 481 (2000) ("We have often noted that judges in this country have long exercised discretion of this nature in imposing sentence within statutory limits in the individual case.")  That a punishment fixed by statute cannot be exceeded is fundamental.  See, e.g., Williams v. New York, 337 U.S. 241, 246, (1949) (emphasizing that sentencing judges may have discretion "within limits fixed by law.")

In this case, petitioners had a property right to their licenses, long established by state law.  Bell v. Burson, 402 U.S. 535, 539 (1971); Hecht v. Monaghan, 307 N.Y. 461 (1954).  The issue is whether the punishment was authorized, not whether the government has the power to define the misconduct in the first place.  The claim relates to whether petitioners were on notice that a single service refusal might lead to revocation.  It also relates to whether the policy applied was validly enacted.  Such concerns have long been considered governed by the due process clause.  See Bouie v. City of Columbia, 378 U.S. 347 (1964) (retroactive application of new construction of statute violated due process); Lankford v. Idaho, 500 U.S. 110 (1991) (due process violated where defendant and his counsel did not have adequate notice that judge might impose death sentence).

The strict constitutional safeguards afforded to criminal defendants may not apply in civil cases.  But the basic protection against "judgments without notice" afforded by the Due Process Clause is implicated by civil penalties as well.  See Shaffer v. Heitner, 433 U.S. 186, 217 (1977) (Stevens, J., concurring in judgment).  The district court held, of course, that the taxi drivers were entitled to a pre-suspension hearing.  But the Due Process Clause also speaks to the ultimate penalty.  As Justice Stevens wrote in BMW of North America, Inc. v. Gore, "Elementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose." 517 U.S. 559, __ (1996).  Last term, this Court reiterated that "there are procedural and substantive constitutional limitations on [punitive damage] awards" on large corporations.  State Farm, 123 S.Ct. at 1519.  The same should hold true for penalties applied the taxi drivers.  Here, however, there was no notice.  Indeed there was contrary notice as the TLC's flyer heralding Operation Refusal specifically stated the penalty for refusals—that is, a $200-$350 fine for the first offense.

Beyond the lack of notice, Operation Refusal policy was never validly enacted.  It is undisputed that the full TLC (which had seven active commissioners serving staggered seven year terms including the chairwoman, who acts as the chief executive) never voted.  This failure violated The City Charter § 2301(e), which gives the TLC jurisdiction over taxi policy, but permits its exercise only "by a majority of its members."  Even if they do not relate to individual hearings these aspects of the claim are procedural in every sense.

Indeed, when Operation Refusal cases came before the full commission on July 25, 2000, the commissioners firmly rejected the chairwoman's edict.  In case after case, the commissioners rejected appeals by TLC lawyers to revoke and accepted the cabbies’ arguments that TLC rules do not authorize revocation for a first refusal offense.  In most cases, the Chairwoman cast the sole vote for revocation.[3]  (The only exception was a case where the cabbie did not appear to contest the charges.)  Commissioner Elias Arout summarized the tenor of the hearings:

Now it clearly states in language—section 19-507(b) is clear and unambiguous.  There is a mandatory monetary penalty for 200 to $350 for the first offense, mandatory monetary penalty for 350 to $500, and a discretionary suspension up to 30 days for the second offense, and a mandatory license revocation for three or more incidents as a refusal within 36 months…. Clearly, had the City Council wished to provide the license revocation for the first instance of refusal it would have done so.

The commissioners, like the OATH judges, would have enforced the penalty that the TLC itself put in its November 10, 1999 notice to drivers, which is to say the penalty designated by the governing statute and TLC regulations.  But the commissioners, again like the OATH judges, had no effective enforcement power.  (Apart from the Chairwoman, the commissioners are unpaid and have no offices at the TLC headquarters in Manhattan.)  The chairwoman bypassed them as well, as the vast majority of revocation orders were made absent the commissioners in "executive session." See Arif v. New York City Taxi and Limousine Commission, 2002 WL 1559732 (N.Y.Co. 2002) (holding Operation Refusal policies illegal under state law).  Thus opinions of ALJs and TLC commissioners—later joined by state trial court judges— carried no more weight than the plain language of the statute.

Respondents, of course, insisted below that the chairwoman acting alone had authority through her power to superintend the TLC.  The courts below did not resolve the issue, and held instead that arguable authority was enough—though the penalty scheme is really so clear that it's hardly arguable.  This Court would not necessarily have to construe the state law, either.  But the Due Process Clause does demand that a law be validly enacted in advance of the taking of a license that is crucial to a livelihood.  See I.N.S. v. Chadha, 462 U.S. 919 (1983) (deportation order reversed where it was caused by a legislative veto).  Failure to vote on a policy when a vote is required can hardly be consistent with due process of law.   It is more than "incorrect" or "ill advised;" it is a fundamental thwarting of the democratic process.  If respondents' considered, deliberate actions were illegal—even if arguably not "egregious"— this Court should at least consider whether that deliberate, illegal conduct by a municipal agency is inconsistent with due process.

II.  Where A Plaintiff's Right Is Taken By Virtue of An Explicit Municipal Policy, Nothing In This Court's Due Process Jurisprudence Requires Him To Demonstrate That The Policy Shocked the Conscience.

Ever since Monroe v. Pape, 365 U.S. 167 (1961), there has been a universal consensus that Section 1983 restricts state policies that deprive persons of life, liberty or property.  Even Justice Frankfurter, who dissented in Monroe, would have held for the plaintiff if the conduct in question had been "authorized by state law" or was "the custom or usage of the Police Department," rather than the illegal action of individual police officers.  See Monroe, 365 U.S. at 258. (Frankfurter, J. dissenting).  In Monell v. New York City Dep't of Soc. Services, 436 U.S. 658 (1978), this Court, overruling Monroe in part, held that cities and city agencies could be liable under Section 1983, when explicit policy or custom that is tantamount to policy inflicts the injury." 436 U.S. at 694.  Since Monell, much of the debate in construing Section 1983 has been about what customs or practices could be considered policy.  Where a policy is at issue, moreover, this Court has held that municipalities, unlike individual actors, could not claim qualified immunity in defense to a Section 1983 claim.  Owen v. City of Independence, 445 U.S. 622, 638 (1980)

There is no dispute that a municipal policy is at issue here, or that it caused a taking.  While the decisions below are not crystal clear, they appear to hinge on whether a constitutional wrong has been done, which, as this Court has held, is a separate question. County of Sacramento v. Lewis, 523 U.S. 833, 856 (Kennedy, J. concurring) (1998); Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992).  The decisions below apply this Court's substantive due process analysis, but in a way that is wholly foreign to this Court's cases. For this Court has never invoked substantive due process where a considered policy is involved, but only where the cases involved random and unauthorized acts by particular officials.

Lewis, for instance, involved a high-speed police chase that resulted in the death of a motorcycle passenger.  Justice Souter described the inquiry as whether there was "an abuse of executive power so clearly unjustified by any legitimate objective of law enforcement as to be barred by the Fourteenth Amendment." 523 U.S. at 840 (citations omitted). The Court held that in the context of a high-speed chase, "only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience, necessary for a due process violation." Id. at 836.  The action was inadvertent and, at worst, negligent.  Had there been a deliberate policy of killing bystanders, or even instigators of police chases, surely the result would have been different. 

This Court was careful to point out that what shocks the conscience in one case might not be sufficient in another.  In his dissent, Justice Scalia criticized the test as too subjective, and said the test should be "whether our Nation has traditionally protected the right" asserted. Id. at 862.  Both tests have the same design: to prevent undue expansion of the concept of due process.  Still, the core idea of due process is "'to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice.'" Hurtado v. California, 110 U.S. 516, 527 (1884) (quoting Bank of Columbia v. Okely, 17 U.S. 235, 4 Wheat. 235-244, 4 L.Ed. 559 (1819) (Johnson, J.)).

Where the deliberate, illegal actions of a municipal agency effect the taking of a vital right, that defines an "arbitrary exercise of the powers of government."  The cabbies' private rights, long established by statute, proved no restraint on the TLC or its chairwoman.  Instead of looking to the statute, the courts below looked to their own views of what was outrageous or conscience shocking.  It is generally the case that illegal actions by the state are normally considered arbitrary (or just as bad).

For the courts below to rely on "a reasonable, though arguably incorrect, interpretation of the city regulations" ignores a fundamental concept of administrative law that illegal actions, no less than arbitrary ones, should be set aside.  See F.C.C. v. NextWave Personal Communications Inc., __ U.S. __, 123 S.Ct. 832 (2003) (Scalia, J.) "The Administrative Procedure Act requires federal courts to set aside federal agency action that is 'not in accordance with law,' — which means, of course, any law, and not merely those laws that the agency itself is charged with administering.") (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413-414 (1971)).   As Justice Rehnquist said in Securities and Exchange Comm'n v. Sloan, "[T]he power to summarily suspend trading in a security even for 10 days … is an awesome power with a potentially devastating impact….. A clear mandate from Congress … is necessary to confer this power." 436 U.S. 103, 112 (1978). The same clear mandate should be necessary to revoke a humble taxi driver's license, for it is essential to his trade. See also Chadha, 462 U.S. at 944 ("[T]he fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution.")

"Historically, th[e] guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property." Lewis, 523 U.S. at 863 (Scalia, J. dissenting) (citing Daniels v. Williams, 474 U.S. 327, 331 (1986) (citations omitted) and Collins, 503 U.S at 127, n. 10).  Thus it is not surprising that this Court has rejected due process arguments in the context of high-speed police chases (Lewis), alleged failures to provide safety in the workplace (Collins), allegedly inadequate police training (Canton v. Harris, 489 U.S. 378 (1989)), and prison riots (Whitley v. Albers, 475 U.S. 312 (1986)).  In those cases, and others, this Court was "reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended." Collins, 503 U.S. at 125.  But here the guideposts are fixed and certain.

This case is not a chase; it is not a riot; there are no split-second judgments demanding deference.  Just the opposite, respondents' actions were cool and calculated.  If they were nonetheless illegal, respondents should be liable.  The district court credits the Chairwoman and the Mayor with "legitimate motives."  This conclusion is akin to a granting the good faith defense that Owen precludes.  There was, in any event, no basis for this factual finding: no deposition testimony, no affidavits, no documentary evidence of any kind—and no discovery.  Respondents' motives were hotly contested in the pleadings, and they are contested still.  Circumstances suggest that respondents were motivated at least as much by electoral politics as anything else.[4]

Even if their motives were pure, respondents' revocation policy was unlawful nonetheless. When 13 OATH rulings held unanimously that it was illegal, they would not relent. When the TLC commissioners, rejected the policy, they did not cease.  Set on an illegal course, they stuck to it. 

The central aim of the Civil Rights Act was to provide protection to those persons wronged by the  "'[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" Monroe, 365 U.S. at 184 (quoting United States v. Classic, 313 U.S. 299, 326 (1941)).  The TLC, clothed with authority, destroyed a wide swath of property rights and livelihoods by the hundreds.  These "arbitrary action[s] of government" (See Wolff v. McDonnell, 418 U.S. 539, 558 (1974)) are precisely the kind that the Due Process Clause should prevent.

CONCLUSION

Danny Glover's protest quite properly struck a nerve, and certainly it unleashed a firestorm of publicity.  But neither the legitimacy of his complaint, nor the allegedly heartfelt desire to cure it justified the systemic trampling of the constitutional rights of taxi drivers, as occurred here. The TLC and its top official defied their city's charter, enabling statutes, their own regulations, independent judges, and their own commissioners.  In their zeal, they deprived hundreds of other taxi drivers of their livelihoods.  As this Court has said, "Whatever other concerns should shape a particular official's actions, certainly one of them should be the constitutional rights of individuals who will be affected by his actions." Owen, 445 U.S. at 656.  When officials ignore this injunction, Section 1983 is there to provide a remedy.

For the reasons stated, the petition for a writ of certiorari should be granted.

Respectfully submitted,
      /s/

Daniel L. Ackman
   counsel of record
201 West 89th Street
New York, New York 10024
(212) 496-2263

Attorney for Petitioners