Amicus Curiae Brief — Donovan v. San Antonio Metropolitan Transit Authority

Office Sur yeme Court, U.S.

FILED

6509 63/0} wm 8 1988

Nos. 82-1913 and 82-1951

ALEXAND: rEVAS

‘

— ey

<A SOE TS iP ON eres

IN THE

Suprene Court of the United States

OCTOBER TERM, 1982

JOE G. GARCIA,

y. Appellant

SAN ANTONIO METROPOLITAN TRANSIT AUTHORITY, et. al.,

Appellees

RAYMOND J. DONOVAN, SECRETARY OF LABOR,

y. Appellant

SAN ANTONIO METROPOLITAN TRANSIT AUTHORITY, et. al.,

Appellees

On Appeal from the United States District Court

for the Western District of Texas

BRIEF FOR THE NATIONAL LEAGUE OF CITIES,

THE NATIONAL GOVERNORS’ ASSOCIATION, THE

NATIONAL ASSOCIATION OF COUNTIES, THE

NATIONAL CONFERENCE OF STATE LEGISLATURES,

AND THE INTERNATIONAL CITY MANAGEMENT

ASSOCIATION AS AMICI CURIAE IN SUPPORT OF

A PLENARY HEARING AND AFFIRMANCE

OF THE DECISION BELOW Yee

LAWRENCE R. VELVEL

Chief Counsel

State and Local Legal Center

444 North Capitol Street, N.W.

Suite 349

Washington, D.C. 20001

(202) 638-1445

Counsel for the Amici Curiae

WILSON - EPES PRINTING Co.,. - 789-0096 - WASHINGTON. D.C. 20001

BEST AVAILABLE COPY

QUESTION PRESENTED

Whether publicly-owned and operated mass transit sys-

tems are a “traditional governmental function.”

(i)

TABLE OF CONTENTS

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(iii)

Page

o ff NW ES

iv

TABLE OF AUTHORITIES

Cases:

Alewine v. City Council of Augusta, Ga., 699 F.2d

ee es ee, ee cinsinenpiinenseniien

Dove v. Chattanooga Area Regional Trans. Auth.,

701 F.2d 50 (6th Cir. 1988) .................................

EEOC v. Wyoming, —— U.S. ——, 103 S.Ct. 1054

ESTER oe 1a I a ORO NE

Hodel v. Virginia Surface Mining and Reclamation

Assoc., 452 U.S. 264, 101 S.Ct. 2352 (1981) .......

Joiner V. City of Macon, 699 F.2d 1060 (11th Cir.

1983) ..... LEER A ATER ay RAB IO ay Se eel ayy OS CRED

Kramer v. New Castle Area Trans. Auth., 677 F.2d

308 (3rd Cir. 1982), cert. den. —— U.S. ——,

Be CN, Re I iain ciniioniisinlimniitaisdasbonbinns

Molina-Estrada Vv. Puerto Rico Highway Authority,

660 F.2d 841 (ist Cir. 1968) ..............................

National League of Cities v. Usery, 426 U.S. 833

UTI iescetieccteniatceniietiiialidiaaita taettchasecteht ei ia

San Antonio Metropolitan Transit Authority, et. al.

v. Donovan, et. al., 557 F.Supp. 445 (D.C.W.D.

A RIRRTRIES I a rine rete lie We ha or nn stows Crt

United Transportation Union v. Long Island Rail-

road, 455 U.S. 678, 102 S.Ct. 1349 (1982) .......

Statutes:

National Mass Transportation Assistance Act of

ery Ge Clee Oe Ie GE GD, vcceceeectrcettesiiertcces

Congressional Reports:

H.Rep. No. 204, 88th Cong., 2d Sess., 1964-2 U.S.

Code Cong. and Admin. News 2569 _..00000000000...

Miscellaneous:

Madden, Constitutional and Legal Foundation of

Federal Grants, in Federal Grant Law (Ameri-

can Bar Association, 1982) _.........00.002000002.2..

Page

6,7

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

Nos. 82-1913 and 82-1951

JOE G. GARCIA,

y. Appellant

SAN ANTONIO METROPOLITAN TRANSIT AUTHORITY, et. al.,

Appellees

RAYMOND J. DONOVAN, SECRETARY OF LABOR,

y. Appellant

SAN ANTONIO METROPOLITAN TRANSIT AUTHORITY, et. al.,

Appellees

On Appeal from the United States District Court

for the Western District of Texas

BRIEF FOR THE NATIONAL LEAGUE OF CITIES,

THE NATIONAL GOVERNORS’ ASSOCIATION, THE

NATIONAL ASSOCIATION OF COUNTIES, THE

NATIONAL CONFERENCE OF STATE LEGISLATURES,

AND THE INTERNATIONAL CITY MANAGEMENT

ASSOCIATION AS AMICI CURIAE IN SUPPORT OF

A PLENARY HEARING AND AFFIRMANCE

OF THE DECISION BELOW

INTEREST OF THE AMICI

The amici are organizations which represent state and

local governments located throughout the United States.

Amici and their members have a vital interest in the

powers and responsibilities of these governments, and in

legal issues affecting such powers and responsibilities.

2

As pointed out infra, issues of profound consequence for

the authority and functions of state and local jurisdic-

tions are presented by this case. Amici are therefore

submitting this brief to assist the Court in its considera-

tion of the questions raised by this litigation.’

STATEMENT

1. The opinion below is one of several recent lower

court decisions on whether a publicly-owned mass transit

system is a “traditional governmental function.”* This

question has repeatedly arisen because an activity must

be a “traditional” function in order to qualify for Tenth

Amendment immunity under the third prong of the im-

munity test established by this Court. In its entirety,

the third prong is that “it must be apparent that the

States’ compliance with the federal law would directly

impair their ability ‘to structure integral operations in

areas of traditional governmental functions.” EEOC

v. Wyoming, USS. : , 103 S.Ct. 1054, 1061

(1983).

The lower courts are in conflict on whether mass

transit is a traditional function. The court below, and

the Court of Appeals for the First Circuit,* have ruled

mass transit is a traditional governmental function. The

Third, Sixth and Eleventh Circuits have ruled it is not.*

1 Pursuant to Rule 36, the parties have consented to the filing of

this amicus brief. Their letters of consent have been lodged with

the Clerk of the Court.

2 The opinion below is San Antonio Metropolitan Transit Author-

ity, et. al. v. Donovan, et. al., 557 F. Supp. 445 (D.C.W.D. Tex.,

1983).

3 Molina-Estrada v. Puerto Rico Highway Authority, 680 F.2d

841 (1st Cir. 1982).

4 Kramer v. New Castle Area Trans. Auth., 677 F.2d 308 (3rd

Cir. 1982), cert. den. — U.S. ——, 103 S.Ct. 786 (1983); Dove v.

Chattanooga Area Regional Trans. Auth., 701 F.2d 50 (6th Cir.

1983) ; Alewine v. City Council of Augusta, Ga., and Joiner v. City

of Macon, 699 F.2d 1060 (11th Cir. 1983).

3

Two of the conflicting cases are presently pending in this

Court. They are the present case, in which Jurisdictional

Statements have been filed on direct appeal, and City of

Macon v. Joiner, No. 82-1974, O.T. 1982, in which the

petitioner seeks a writ of certiorari directed to the Elev-

enth Circuit.

2. The court below issued a wide-ranging opinion on

whether mass transit is a “traditional” governmental

function. It found that “[t]he historical reality of mass

transit reveals a long record of state concern and activ-

ity in the field.” 557 F.Supp. at 448. Prior to today’s

predominantly public ownership of mass transit, this gov-

ernmental concern had been expressed through state and

city “regulation of fares, routes, schedules, franchising,

and safety.” Ibid. The private ownership previously ex-

isting under this regulation, ruled the court, did not

negate the fact that today’s publicly-owned mass transit

systems are a governmental function. /d. at 448, 450.

The court felt a contrary holding would represent the

“ ‘static historical view of state functions’” eschewed by

this Court in United Transportation Union v. Long Island

Railroad Co., 455 U.S. 678, 102 S.Ct. 1349 (1982). Id.

at 450.

In a section of its opinion dealing with an extensive

list. of federal statutes, the court held that federal regu-

latory authority would not be eroded by ruling mass

transit to be a governmental furction. Jd. at 448-50.

The court pointed out that the statutes are inapplicable

anyway (often because of exemptions), are only of recent

vintage, or, like clean air laws, will continue to govern.

The court also looked at other relevant factors in deter-

mining whether publicly-owned mass transit is a tradi-

tional governmental function. It noted that the states

and Congress have both recognized that public transpor-

tation is an essential state function, id. at 451, and it

quoted numerous legislative statements showing this con-

gressional view. [bid. It aiso found that it is “extremely

4

difficult” to distinguish mass transit from activities this

Court has ruled to be traditional governmental functions,

ibid., activities such as police protection, fire protection,

schools, public health, parks and recreation. In this re-

gard, the court noted that while Congress has made

money available to loca] governments for mass transit, it

has also made huge annual amounts available for the

other activities. Jd. at 452. The iutter amounts range

from hundreds of millions of dollars per year to many

billions of dollars per year. Ibid.

Finally, the court pointed out that in urban areas mass

transit is pervasively supplied by government, which pro-

vides it “over 90 percent of the time” when measured by

vehicle miles and passenger trips, and “[i]n 230 of ...

279 urban areas.” Jd. at 453. As well, the court ruled

mass transit “benefits the community as a whole,” can-

not be provided at a profit, is in fact provided at a 75 per-

cent operating loss which is primarily subsidized by state

and local taxes, and, in the absence of profit, can only be

provided by government. [bid.

REASONS FOR GRANTING A PLENARY HEARING

1. This litigation is one of the two currently pending

cases that present this Court with the question whether

publicly-owned and operated mass transit systems are a

“traditional governmental] function.” The other pending

case is City of Macon Vv. Joiner, No. 82-1974, O.T. 1982.

In their brief in support of certiorari in Macon, amici

have set forth the reasons why this Court should grant

a plenary hearing in the two proceedings. Thus, those

reasons will only be summarized here. For a more ex-

tensive treatment of them, amici respectfully refer the

Court to their brief in Macon, which can be read in

conjunction with this brief.

In summary, the reasons for a plenary hearing are

these:

5

A. The cases present the highly important issue of

whether an activity now predominantly conducted by local

governments is precluded from being a protected govern-

mental function because it formerly was conducted by

private erterprise. If an activity is so precluded, then

governmental activities essential to the welfare of mil-

lions of citizens will be completely foreclosed from Tenth

Amendment immunity against federal regulation. The

power of state and local governments to effectively meet

the needs of their citizens will be hindered, and the costs

encountered by these governments will rise.

B. State and local governments are not static. They

change their activities as required by the needs of citi-

zens. In recent decades they have increasingly found it

necessary to provide their citizens with a wide range of

essential services, including airports, waste disposal fa-

cilities, hospitals, nursing homes, utility services, and

other necessities of life. State and local governments

need to know the circumstances in which their activities

will be “traditional governmental functions” eligible for

Tenth Amendment immunity. Lower courts have not

provided the necessary guidance, and a clarifying deci-

sion from this Court is required.

C. There is a Girect conflict among the lower courts

on whether mass transit is a “traditional governmental

function.” The conflict exists among the circuits and be-

tween circuit court decisions and the opinion below.

D. The decisions holding mass transit is not a protected

governmental function are inconsistent with this Court’s

decision in United Transportation Union v. Long Island

R.R., supra. This is true both as a factual matter and a

legal one. As a factual matter, the commuter railroad

services at issue in Long Island R.R. were overwhelm-

ingly provided by privately-owned systems, whereas mass

transit is overwhelmingly provided by publicly-owned sys-

tems. As a legal matter, the decisions holding mass

transit is not a “traditional” governmental function have

imposed precisely the “static historical view” of state

6

functions that was explicitly eschewed by this Court in

Long Island R.R., 445 U.S. at 686, 102 S.Ct. at 1357.

2. Nothing presented by appellants in this case alters

the need for plenary hearing and decision by this Court.

Appellants essentially make two arguments not covered

in amici’s brief in Macon. They argue, first, that mass

transit is not a traditional governmental function be-

cause Congress provided some of the money used by local

governments in acquiring and operating mass transit sys-

tems. Second, they assert that federal regulatory author-

ity would be eroded by holding mass transit to be a tra-

ditional governmental function. This alleged erosion is

particularly inappropriate, they say, because federal

grant monies helped finance local governments’ purchase

of transit systems.

Neither of these additional arguments provides war-

rant for holding that mass transit is unprotected by the

Tenth Amendment:

A. That Congress provided grants that were used in

purchasing and operating mass transit does not prevent

publicly-owned mass transit systems from being a pro-

tected governmental function. Rather, the congressional

grants to local governments illustrate the national legis-

lature’s own recognition that it is essentia] for these gov-

ernments to provide a vita] service indispensable to the

daily welfare of millions of their citizens.’

5 The legislative record of congressional enactments dealing with

mass transit contains numerous statements that mass transit is

vital to today’s society. These statements appear in statutory

declarations of policy, in committee hearings and reports, and on

the floor of Congress. See, e.g., 49 U.S.C. §§ 1601b(2), 1601b(4),

1601b(5), 1601b(7); H.Rep. No. 204, 88th Cong., 2d Sess., 1964-2

U.S. Code Cong. and Admin. News, pp. 2571, 2572, 2573; see also

the congressional statements quoted in the opinion below, 557

F.Supp. at 451.

Furthermore, in its Jurisdictional Statement the government

properly concedes that by 1964 Congress “had concluded that mass

transportation needs have out-stripped the present resources of

cities and States,” and that a “nationwide program” would “assist

7

Appellants’ argument would vitiate federalism, a re-

sult wholly inconsistent with this Court’s decision in

National League of Cities v. Usery, 426 U.S. 833 (1976).

Because the federal government’s ability to tax and

otherwise raise money is vastly superior to that of state

and local governments, Congress has felt it necessary to

grant the latter scores of billions of dollars annually to

enable them to carry out vital activities. These activi-

ties preeminently include ones this Court has held to be

traditional governmental functions protected by the

Tenth Amendment. As the court below pointed out, in

1979 alone the federal government granted state and

local governments almost six billion dollars for education,

over fourteen billion dollars for health, more than three

and one-half billion dollars for sewage plants, and over

one-half billion dollars for the administration of justice.

If the use of grant funds were a criterion for assessing

whether an activity is a traditional governmental func-

tion, these activities could not be protected under the

Tenth Amendment, a result directly at odds with Na-

tional League of Cities v. Usery, supra. As well, Con-

gress’ superior ability to tax and otherwise raise money

would be converted into an instrument for injuring fed-

eralism by precluding state and local governments from

receiving immunity for local activities that are plainly

their responsibility.

These untoward consequences are not changed by the

federal government’s strained argument that mass transit

is different from other activities because grant funds

were used not only in the operation of publicly-owned

transit systems, but in acquiring and constructing gov-

in solving transportation problems.” Jurisdictional Statement of

Appellant Donovan, p. 18, quoting H.Rep. No. 204, 88th Cong., 1st

Sess. 4 (1963).

*It has been estimated that the federal government granted

82.9 billion doilars to state and local governments in 1980. Madden,

the Constitutional and Legal Foundation of Federal Grants, in

Federal Grant Law (American Bar Association, 1982), at p. 6, n.3.

8

ernmentally-owned transit facilities. The fact is that

federal grant funds have been used extensively to acquire

and construct governmentally-owned facilities for many

activities that are protected governmental functions. Be-

yond this, there is no meaningful distinction for Tenth

Amendment purposes between the use of grant funds in

acquiring necessary facilities and their use in conducting

necessary daily operations. Funds for the adequate daily

operation of an activity are as essential to state and local

governments as funds for acquiring the requisite capital

facilities. A lack of sufficient funds for either purpose

would greatly hinder the ability of state and local govern-

ments to carry out vital functions.

B. The appellants’ argument concerning alleged erosion

of federal regulation is no sounder than their argument

on grant monies. For as shown by the court below, spe-

cific regulation of mass transit has chiefly been regula-

tion by state and local governments, not regulation by the

federal government. It has been state and local govern-

ments that have regulated entry into the business, fares,

routes, schedules and safety.”

But even were federal regulation lessened by holding

mass transit to be a traditional governmental function, a

contrary holding would still be unjustified. Federal reg-

ulation is preeminently regulation of private parties, and

this Court has made clear that federal regulatory author-

ity can be exercised over private companies where it can-

not be exercised over state and local governments. Hodel

v. Virginia Surface Mining & Reclamation Assoc., 452

U.S. 264, 286-287, 101 S.Ct. 2352, 2365 (1981); Na-

tional League of Cities v. Usery, supra, 426 U.S. at 845,

855-856, 101 S.Ct. at 2471, 2475-2476 (1976). Thus,

that the federal government has regulated private parties

who owned mass transit systems does not justify it in

7 As said before, the lower court also pointed out that federal

laws that could affect mass transit are inapplicable anyway, are

only of recent origin, or—as in the case of generalized environ-

mental and other laws th t affect a host of activities besides

transit—-will continue to guvern.

9

regulating local governments when they have now be-

come the overwhelmingly predominant supplier of transit

services (and have done so to fulfill their governmental

responsibility to accommodate vital needs of citizens

whom the private parties could no longer serve). Corre-

latively, a lessening of federal regulation if mass transit

is ruled to be a protected governmental function does not

justify an opposite ruling.

Nor is any of this changed because federal grants were

used by local governments in acquiring transit facilities.

For as said earlier, if the use of grant monies made a

difference, then grants would gravely harm federalism by

precluding Tenth Amendment immunity for local activi-

ties that have to be conducted by state and local gov-

ernments.

CONCLUSION

For the foregoing reasons, this Court should order a

plenary hearing in this case and, upon such hearing,

should affirm the decision below.*

Respectfully submitted,

LAWRENCE R. VELVEL

Chief Counsel

State and Local Legal C -nter

444 North Capitol Street, N.W.

Suite 349

Washington, D.C. 20001

(202) 638-1445

Counsel for the Amici Curiae

8 As indicated in amici’s brief in Macon, p. 15, a plenary hearing

is desirable both in that case and this one. For each case presents

certain differing facets of the same problem. Thus Macon contains

judicial findings showing that an overwhelming percentage of the

citizens who use mass transit are dependent upon it, while in the

instant case the publicly-owned transit system received UMTA

funds from the federal government.

If a plenary hearing is granted in only one of the two cases, the

other should be retained on the docket pending the Court’s plenary

decision.