JONES v. TEMMER Civ. A. No.
93-B-235.
829 F.Supp. 1226 (1993)
Leroy
JONES; Ani Ebong; Rowland Nwankwo; Girma Molalegne; Quick Pick Cabs, Inc.; and Reverend Oscar S.
Tillman, Plaintiffs, v. Robert TEMMER; Christine Alvarez; and Vincent Majowski, acting in their official capacities as members of
the Colorado Public Utilities Commission, Defendants.
United States District Court, D.
Colorado.
August 11, 1993.
Paula
Connelly, Gorsuch, Kirgis,
Campbell, Walker and Grover, Denver, CO, William H. Mellor III, Institute for
Justice, Washington, DC, for plaintiffs.
Mana L. Jennings-Fader, Jeffrey A. Froeschle, Asst. Attys. Gen., Regulatory Law Section,
Denver, CO, for defendants.
MEMORANDUM
OPINION AND ORDER
BABCOCK, District Judge.
Plaintiffs Leroy Jones, Ani Ebong, Rowland Nwankwo, Girma Molalegne, and Quick Pick Cabs, Inc. (Quick Pick), have
brought this action for injunctive and declaratory relief against Robert Temmer, Christine Alvarez, and Vincent Majowski
(collectively, defendants or commissioners) claiming violation of rights
protected by the Fourteenth Amendment to the Constitution. Specifically, in
Count I plaintiffs allege violations of the privileges and immunities clause
and deprivation of substantive due process. In Count II plaintiffs allege
violations of the equal protection clause of the Fourteenth Amendment. Finally,
in Count III plaintiff Tillman asserts a separate Fourteenth
[829 F.Supp. 1229]
Amendment
equal protection claim.
Plaintiffs seek a judgment declaring that the system of Colorado state laws and
regulations governing Denver taxicab business, as applied, effectively
prohibits entry into the business, violates their substantive due process
rights and is thus unconstitutional. In addition, plaintiffs seek to enjoin
defendants from enforcing Colorado's state regulatory process and policies in a
manner that unreasonably interferes with their right and opportunity to provide
taxi service within the Denver metropolitan area.
Plaintiffs bring this action
pursuant to the Fourteenth Amendment of the Constitution, 42 U.S.C. § 1983, and
28 U.S.C. § 2201. Jurisdiction is claimed pursuant to 28 U.S.C. §§ 1331 and
1343.
Defendants move to dismiss the
amended complaint or, in the alternative, for summary judgment with respect to
all counts of the amended complaint. They file this motion pursuant to Federal
Rules of Civil Procedure 12(b)(1), 12(b)(6), 12(b)(7),
and 56(b).
As the basis for this motion
defendants state: 1) plaintiffs Quick Pick Cabs, Inc., Leroy Jones, Ani Ebong, and Rowland Nwankwo, and Girma Molalegne lack standing to bring a portion of the first
claim for relief; 2) plaintiff Tillman lacks standing to bring the third claim
for relief; 3) the applicable principles of abstention enunciated in Colorado
River Water Conservation Dist. v. U.S., 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), and in Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943),
require abstention in this case; 4) plaintiffs have failed to join necessary
parties under Fed.R.Civ.P. 19; 5) plaintiffs have
failed to state a cause of action upon which relief can be granted under any
count in the amended complaint; and 6) summary judgment is appropriate in this
case as there are no genuine issues of material fact and defendants are
entitled to judgment as a matter of law.
For the reasons set forth below I
conclude that: 1) Quick Pick Cabs, Inc., and Ani Ebong lack standing to bring a claim under the privileges
and immunities clause; 2) Tillman lacks standing to bring the third claim for
relief; 3) I decline to abstain in this case; 4) taxicab companies operating in
Denver are not necessary parties under Rule 19(a); 5) plaintiffs' first and
second claims will be dismissed for failure to state a cause of action under
the privileges and immunities clause, substantive due process and equal
protection; and 6) plaintiff Tillman's third claim will be dismissed for lack
of standing and alternatively, for failure to state a claim. Because Rule 12
applies to resolve defendants' motions, I need not address their Rule 56
arguments.
I.
Under Colorado Revised Statutes §
40-10-102, taxicabs are deemed motor vehicle carriers, and as such are
regulated as public utilities by the Public Utilities Commission (PUC). §
40-10-102, 17 C.R.S. (1984). The PUC is a regulatory agency created pursuant to
Article XXV of the Colorado Constitution. It regulates taxicabs pursuant to
Articles 1 through 7, inclusive, Article 10 of Title 40 of the Colorado Revised
Statutes, and pursuant to the rules and regulations found at 4 Code of Colorado
Regulations 723, promulgated pursuant to statutory authority.
The regulatory scheme in Colorado
for common carriers of passengers, including taxicabs, is regulated monopoly.
This state policy is found in § 40-5-101, 17 C.R.S. (1984). The policy
"was designed to prevent duplication of facilities and competition between
utilities, and to authorize new utilities in a field only when existing ones
are found to be inadequate." Public Serv. Co. v.
Public Utilities Comm'n of State of Colo., 765 P.2d 1015, 1021
(Colo.1988).
Anyone seeking to operate a taxicab
business in Colorado must obtain a "certificate of public convenience and
necessity" (CPCN) from the PUC. Under the current regulatory scheme, an
applicant for a CPCN has the burden of demonstrating (1) that existing service
in an area is substantially inadequate, and (2) that existing companies cannot
provide adequate service. Once a CPCN is obtained no other utility may provide
service in that territory unless it is established that the certified utility
is unable or unwilling to provide adequate service. This exclusive right to
serve an area is a
[829 F.Supp. 1230]
property right which cannot be affected except by due process of
law. Public Serv. Co., 765 P.2d at 1021. Until
changed by the state General Assembly, the doctrine of regulated monopoly
governs and restricts the PUC in exercising its discretion in the area of
granting CPCNs to taxicabs. See Rocky Mountain Airways, Inc. v. Public
Utilities Comm'n, 181 Colo. 170, 509 P.2d
804, 807 (1973).
Plaintiffs Jones, Ebong, Nwankwo, and Molalegne formed Quick Pick, a Colorado corporation, and in
July, 1992, Quick Pick filed an application with the PUC seeking a CPCN to
operate a taxicab service in the Denver metro area. The existing Denver taxicab
companies, along with 10 other companies operating elsewhere in Colorado,
intervened to protest the application. At present, three companies, Yellow Cab,
Zone Cab, and Metro Taxi, hold CPCNs and are authorized to provide taxicab
service in the Denver metropolitan area. On November 23-24, 1992, the PUC
conducted a hearing before an administrative law judge on Quick Pick Cabs'
application. At the end of the hearing, the application was dismissed without
prejudice.
II.
A.
Abstention
As a preliminary matter, defendants
move to dismiss the amended complaint based on the doctrine of abstention. The
doctrine of abstention represents "an extraordinary and narrow exception
to the duty of a district court to adjudicate a controversy properly before
it." Smith v. Paulk, 705 F.2d 1279, 1282
(10th Cir.1983) (quoting Colorado River Water Conservation Dist. v. U.S.,
424 U.S. 800, 813, 96
S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976)). The
decision to abstain is largely committed to the discretion of the district
court. Ramos v. Lamm, 639 F.2d 559, 564 n. 4
(10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct.
1759, 68 L.Ed.2d 239 (1981).
Defendants argue that abstention is
appropriate here because this case falls squarely within the principles
enunciated in Colorado River Conservation Dist. v. U.S., 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) and Burford
v. Sun Oil Co, 319
U.S. 315, 63 S.Ct. 1098, 87 L.Ed.
1424 (1943). The principle distilled from these cases
is that where timely and adequate state-court review is available, a federal
court sitting in equity must decline to interfere with the proceedings or
orders of state administrative agencies: (1) when there are "difficult
questions of state law bearing on policy problems of substantial public import
whose importance transcends the result in the case then at bar"; or (2)
where the "exercise of federal review of the question in a case and in
similar cases would be disruptive of state efforts to establish a coherent
policy with respect to a matter of substantial public concern." Colorado River Water Conservation Dist. v. U.S., 424 U.S. 800, 814, 96 S.Ct. 1236, 1245, 47 L.Ed.2d 483 (1976). Defendants
argue that the applicable ground for abstention in this case is that the case
presents difficult questions of state law bearing on policy problems of
substantial public import with importance that transcends the result in this
case. They assert that if this court were to modify either the basic nature of
Colorado's regulatory policy or any part of the overall regulatory scheme, the
modification would have ramifications and repercussions that would ripple
throughout the remainder of the comprehensive and complex regulatory scheme
established by the Colorado legislature and administered by the commission.
In Burford
v. Sun Oil, a Federal District Court sitting in equity was confronted with
a Fourteenth Amendment challenge to the reasonableness of the Texas Railroad
Commission's grant of an oil drilling permit. The constitutional challenge was
of minimal federal importance, involving solely the question whether the
commission had properly applied Texas' complex oil and gas conservation
regulations. 319 U.S. at 331 and n. 28, 63 S.Ct. at 1106 and n. 28. Abstention was appropriate
in that case because the state courts had acquired a specialized knowledge of
the regulations and industry. Id. at 327, 63 S.Ct.
at 1104.
Here, plaintiffs seek relief for
alleged violations of their constitutionally based civil rights under 42 U.S.C.
§ 1983. The obligation to exercise jurisdiction is particularly
[829 F.Supp. 1231]
weighty when relief is sought pursuant to 42 U.S.C. § 1983. San Francisco County Democratic Cent. Comm. v. Eu,
826 F.2d 814, 825 n.
19 (9th Cir.1987). This case does not involve a federal claim
entangled in a complex state regulatory scheme. Although my inquiry in this
case could result in an injunction against the enforcement of the state
regulatory scheme as applies to these plaintiffs, abstention is not required
merely because resolution of a federal question may result in the overturning
of a state policy. Zablocki v. Redhail, 434 U.S. 374, 380 n. 5,
98 S.Ct. 673, 678 n. 5, 54 L.Ed.2d 618 (1978).
I decline to abstain from hearing plaintiffs' claims in this case.
B.
Failure to Join Parties Under Rule 19
Defendants argue that taxicab
companies operating in Colorado generally, and in the Denver area specifically,
are necessary parties under Rule 19 and must be joined as defendants in this
action, and if they cannot be joined, the action must be dismissed pursuant to
Rule 12(b)(7).
To show that the taxicab companies
are indispensable parties, defendants must establish that the companies fall
within Rule 19(a)'s definition of necessary parties. Once a party has been
found "necessary," Rule 19(b) provides factors to be considered to
determine whether the suit should be dismissed if joinder
of the party destroys jurisdiction. See Fed.R.Civ.P.
19(b). A party is "necessary" under Rule
19(a) if:
(1) in the person's absence complete
relief cannot be accorded among those already parties, or (2) the person claims
an interest relating to the subject of the action and is so situated that the
disposition of the action in the person's absence may (i)
as a practical matter impair or impede the person's ability to protect that
interest or (ii) leave any of the persons already parties subject to a
substantial risk of incurring double, multiple, or otherwise inconsistent
obligations by reason of the claimed interest.
Fed.R.Civ.P. 19(a).
There are at present 38 persons or
entities in Colorado holding CPCNs to operate as taxicab companies. Defendants
argue that current holders of CPCNs are necessary parties under both 19(a)(2)(i) and 19(a)(2)(ii).
Defendants contend that the question of the constitutionality of the regulatory
scheme governing taxicabs as applied to these plaintiffs raises the state law
issue of protection of the property rights of the present taxicab CPCN holders.
Defendants argue that the current holders of CPCNs are so situated that the
disposition of this case in their absence may, as a practical matter, impair or
impede their ability to protect that interest. See Fed.R.Civ.P.
19(a)(2)(i). Alternatively, defendants
assert that because disposition of this case in the absence of these taxicabs
companies may leave one or more of the present parties subject to a substantial
risk of incurring inconsistent obligations, the CPCN holders must be joined as
defendants. Fed.R.Civ.P. 19(a)(2)(ii).
I find no merit in defendants arguments. Since I
conclude that 19(a) does not apply, 19(b) cannot be applied to dismiss the
action.
C.
Standards for Dismissal
Under Rule 12(b)(6), a district
court may dismiss a complaint for failure to state a claim upon which relief
can be granted if it appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). In reviewing
the sufficiency of the complaint, all well-pled facts, as opposed to conclusory allegations, must be taken as true. Weiszmann v. Kirkland & Ellis, 732 F.Supp. 1540, 1543 (D.Colo. 1990). All
reasonable inferences must be liberally construed in the plaintiff's favor. Id.
D.
Standing
Before the plaintiffs filed their
amended complaint, the commission filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) asserting that this court lacks
subject matter jurisdiction because plaintiffs lack standing to bring a portion
of the first claim for relief and the entirety of the third claim for relief.
Defendants renew this motion now.
[829 F.Supp. 1232]
The focus of an inquiry into
standing "is whether the litigant is entitled to have the court decide the
merits of the dispute or of particular issues. This inquiry involves both
constitutional limitations on federal-court jurisdiction and prudential
limitations on its exercise...." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). The
constitutional limitations of standing are derived from Article III, which
limits judicial power to cases and controversies.
To overcome the Article III
limitation on standing, often referred to as the "injury in fact"
requirement, a plaintiff must at a minimum show an actual or threatened injury
caused by the defendant and that a favorable judicial decision is likely to
redress the injury. Valley Forge Christian College v. Americans United for
Separation of Church and State Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). There are, in
addition, prudential principles applying to standing that limit the class of
persons who may invoke a courts' powers. Id. at
474, 102 S.Ct. at 759-60. In Valley Forge
Christian College, the court listed the three "prudential
principles": (1) the plaintiff must assert his own rights and may not rely
on the constitutional rights of third parties; (2) the court must not
adjudicate "generalized grievances" that are more appropriately
addressed by the executive or legislative branches of government; and (3) the
plaintiff must come within the zone of interests to be protected or regulated
by the statute or constitutional guarantee in question. Id. at 474-75,
102 S.Ct. at 759-60.
Defendants first argue that
plaintiff Quick Pick has no standing to bring the first cause of action.
According to paragraph 8 of the complaint, plaintiff Quick Pick is a
corporation. The Tenth Circuit has held that a corporation has no standing to
maintain a claim under the privileges and immunities clause of the Fourteenth
Amendment. Smith v. Paulk, 705 F.2d 1279, 1283
(10th Cir.1983). The privileges and immunities claim with respect to
Quick Pick Cabs, Inc. will be dismissed for lack of standing.
Second, defendants argue that
plaintiff Ebong has no standing to maintain a claim
under the privileges and immunities clause because he is not a citizen of the
United States. See Banerjee v. Roberts, 641 F.Supp. 1093, 1103 (D.Conn.1985). By its terms, § 1 of the Fourteenth
Amendment protects only "persons born or naturalized in the United
States." By his own admission, plaintiff Ebong
is neither; he is a "permanent resident of the United States." (Complaint ¶ 5.) Thus, the privileges and immunities claim
with respect to plaintiff Ebong will be dismissed for
lack of standing.
Defendants further argue that all
plaintiffs lack standing to bring the privileges and immunities portion of the
first claim for relief because that clause protects nonresidents of Colorado
from discrimination based on their nonresident status, and here, each plaintiff
is a resident of Colorado. Plaintiffs respond that defendants have confused the
privileges and immunities clause of the Fourteenth Amendment with the
privileges and immunities clause under Article IV, section 2 of the
Constitution.
The privileges and immunities clause
of the Fourteenth Amendment protects very few rights because it neither
incorporates any of the Bill of Rights nor protects
all rights of individual citizens. See Slaughter-House Cases, 83 U.S.
(16 Wall.) 36, 21 L.Ed. 394 (1873).
Instead, this provision protects only those rights peculiar to being a citizen
of the federal government; it does not protect those rights which relate to
state citizenship. Id. Accordingly, it is not necessary that plaintiffs
have non-resident status in order to bring a claim under the privileges and
immunities clause of the Fourteenth Amendment. As discussed below in section E(a), however, plaintiffs have failed to state a claim under
the privileges and immunities clause of the Fourteenth Amendment.
Finally, defendants argue that plaintiff
Tillman has no standing to bring the third claim for relief. In the third
claim, Tillman alleges that: he is a member of the general public in Denver; he
uses taxicabs in Denver; Colorado's regulatory scheme for taxicabs artificially
limits the availability of taxicabs in Denver; and, as a result, he and
[829 F.Supp. 1233]
other individuals in the neighborhood in which he lives and
resides are denied "opportunities equal to those of other Denver residents
to enjoy taxicab services." (Complaint at 14.) On
these allegations, Tillman brings his claim of deprivation of his rights to
equal protection under the Fourteenth Amendment.
Defendants argue that Tillman cannot
prove a fairly traceable causal relationship between Colorado's regulatory
scheme and his alleged injury. They also contend that Tillman has not shown,
and cannot prove without engaging in gross speculation, that he will have any
greater access to taxicab service in Denver if this court grants his request
for declaratory and injunctive relief. Defendants further argue that Tillman
asserts no special harm personal to him, but rather complains only about the
general unavailability of taxicabs in some neighborhoods of Denver and
complains that this has incidentally affected him.
As to defendants
allegation that Tillman has alleged only a generalized grievance, Tillman need
only allege a distinct and palpable injury to himself, even if it is an injury
shared by a large class of other possible litigants. Warth,
422 U.S. at 501, 95 S.Ct. at 2206. I find that
Tillman has satisfied this requirement. I conclude, however, that defendants
other arguments have merit.
Accepting his allegations as true,
and construing the complaint in his favor, Tillman has failed to allege facts
from which I can reasonably infer that, absent the defendants' restrictive
regulatory scheme, there is a substantial probability that he would have access
to taxicabs equal to that of other Denver residents. See Warth
v. Seldin, 422 U.S. at 505-07, 95
S.Ct. at 2208-10. In addition, I am unable to infer
that if I grant the relief requested, there is a substantial probability that
the perceived inequity will be removed. See id. I conclude, therefore,
that Tillman lacks standing to bring the third claim for relief.
E.
First Claim for Relief
The Supreme Court has established
two necessary elements for recovery of damages under a 42 U.S.C. § 1983 civil
rights claim. A plaintiff must prove that the defendant has deprived him of a
right secured by the United States Constitution and, second, that the defendant
deprived plaintiff of this right under color of state law. Adickes v. S.H. Kress
& Co., 398 U.S.
144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142
(1970). Here, defendants do not dispute that all actions were taken
under color of state law; the only issue is whether plaintiffs suffered a
constitutional deprivation. Plaintiffs allege violations of their Fourteenth
Amendment rights. I will address, seriatim, plaintiffs
claims relating to privileges and immunities, substantive due process and equal
protection.
a)
Privileges and Immunities
Plaintiffs Jones, Ebong, Nwankwo, Molalegne, and Quick Pick Cabs, Inc. seek declaratory and
injunctive relief based on the allegation that the Colorado regulatory regime
for taxicabs deprives them of privileges and immunities of citizenship under
the Fourteenth Amendment. That which plaintiffs seek to redress in this context
is their "basic right to pursue their chosen livelihoods and to operate a
legitimate business." (Amended Complaint at 1.)
The privileges and immunities clause
of the Fourteenth Amendment protects very few rights. To my knowledge, in the
history of the United States Supreme Court, only one decision determined that a
state violated this provision and that decision was overruled within a few
years. Colgate v. Harvey, 296 U.S. 404, 56 S.Ct. 252, 80 L.Ed.
299 (1935), overruled in Madden v. Commonwealth of
Kentucky, 309 U.S. 83,
60 S.Ct. 406, 84 L.Ed.
590 (1940). In the Slaughter-House
Cases, 83 U.S. (16 Wall.) 36, 21 L.Ed. 394
(1873), the Supreme Court held that this clause neither incorporates the Bill
of Rights nor protects all rights of individual citizens. Rather the provision
protects only those rights peculiar to being a citizen of the United States; it
does not protect those rights which relate to state citizenship. As a court of
this district noted, "the argument that the clause creates a substantive
right to pursue one's lawful occupation or profession free from state
limitations was laid to rest long
[829 F.Supp. 1234]
ago by the United States Supreme Court." Galahad v. Weinshienk, 555 F.Supp. 1201, 1207 (D.Colo.1983). Here, plaintiffs have failed to allege
that defendants have eliminated a federal right protected by the privileges and
immunities clause. I will dismiss the privileges and immunities claim against
all defendants for failure to state a claim upon which relief can be granted.
b)
Substantive Due Process
Plaintiffs Jones, Ebong, Nwankwo, Molalegne, and Quick Pick Cabs, Inc., seek declaratory and
injunctive relief claiming that Colorado's regulatory regime for taxicabs
deprives them of due process under the Fourteenth Amendment. Plaintiffs make a
substantive due process attack on the Colorado regulatory scheme.
The due process clause of the
Fourteenth Amendment includes a substantive component which guards against
arbitrary and capricious government action. Sinaloa Lake Owners Ass'n v. City of Simi Valley, 882 F.2d 1398, 1407
(9th Cir.1989), cert. denied, 494 U.S. 1016, 110 S.Ct.
1317, 108 L.Ed.2d 493 (1990). Substantive due process imposes limits on what a
state may do regardless of what procedural protection is provided. Harrington
v. Almy, 977 F.2d 37, 43 (1st
Cir.1992) (quoting Pittsley v. Warish, 927 F.2d 3, 6 (1st Cir.), cert.
denied, ___ U.S. ___, 112 S.Ct. 226, 116 L.Ed.2d
183 (1991).
The Tenth Circuit case law is
unclear on what interest is required to trigger substantive due process
guarantees. Compare Harris v. Blake, 798 F.2d 419, 424 (10th
Cir. 1986), cert. denied, 479 U.S. 1033, 107 S.Ct.
882, 93 L.Ed.2d 836 (1987) (claim for denial of substantive due process
requires that plaintiff allege a liberty or property interest); Brenna v.
Southern Colorado State College, 589 F.2d 475, 476 (10th
Cir.1978) (same); Weathers v. West Yuma County School Dist., 530 F.2d 1335, 1342
(10th Cir.1976) (same), with Mangels v. Pena, 789 F.2d 836, 839 (10th
Cir.1986) ("Rights of substantive due process are founded not upon state
provisions but upon deeply rooted notions of fundamental personal interests
derived from the Constitution.") The interest alleged by the plaintiffs,
their liberty to pursue a chosen livelihood, has not been treated as a
fundamental right by the courts. See City of New Orleans v. Dukes, 427 U.S. 297, 303-04, 96
S.Ct. 2513, 2516-17, 49 L.Ed.2d 511 (1976); Harper
v. Lindsay, 616 F.2d
849, 854 (5th Cir.1980). Nor is the mere denial of a business or employment
opportunity, "without more," the deprivation of a liberty interest
because plaintiffs ability to obtain future business
or employment opportunities is not jeopardized. Bannum, Inc. v. Town of
Ashland, 922 F.2d 197,
201 (4th Cir.1990). The necessary "more" referred to by the
court is provided when there is either public disparagement damaging to an
individual's standing in the community or a stigmatic injury to an employment
interest likely to impair future work-related opportunities. Schneeweis v. Jacobs, 771 F.Supp. 733, 737 (E.D.Va.
1991), aff'd, 966 F.2d 1444 (4th
Cir.1992). Here, plaintiffs allege no public disparagement or stigmatic injury
to their future ability to obtain employment.
Even assuming arguendo
a protectable interest, I conclude that plaintiffs have failed to state a claim
under substantive due process. The regulatory scheme at issue here is economic
or business regulation based on the exercise of Colorado's police powers.
Colorado's scheme for the regulation of motor vehicle carriers of passengers
does not employ any classification based on a "suspect" category.
Further, the regulatory scheme does not implicate any fundamental
constitutionally-protected values. Thus, the substantive due process inquiry
requires me to determine if the governmental action is rationally related to a
legitimate state interest. Allright
Colorado, Inc. v. City and County of Denver, 937 F.2d 1502, 1511
(10th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct.
587, 116 L.Ed.2d 612 (1991).
Governmental bodies have "wide
latitude in enacting social and economic legislation; the federal courts do not
sit as arbiters of the wisdom or utility of these laws." Allright
Colorado, 937 F.2d at 1512, quoting Alamo Rent-A-Car, Inc., 825 F.2d
at 370. I need not satisfy myself that the challenged rules will in fact
further their articulated purposes; it is sufficient if the Colorado General
Assembly could rationally have concluded that
[829 F.Supp. 1235]
the purposes would be achieved. See Allright
Colorado, 937 F.2d at 1512.
The Colorado Supreme Court has
specifically identified the following as public health, welfare, and safety
interests justifying public utility regulation: (1) prevention of, or reduction
of, destructive use of the public highways, Public Utilities Comm. v.
Manley, 99 Colo. 153, 60 P.2d 913, 919 (1936); (2) increased safety of
those traveling on or using the public highways, McKay v. Public Utilities Comm'n, 104 Colo. 402, 91 P.2d 965, 969 (1939); (3)
coordination of commercial motor vehicle transportation on the public highways,
id.; and (4) prevention, "in the interest of the general public,
[of] unnecessary duplication of facilities or systems for furnishing [service]
to customers," Public Serv. Co. v. Public Utilities Comm'n,
142 Colo. 135, 350 P.2d
543, 550 (1960), cert. denied, 364 U.S. 820, 81 S.Ct.
53, 5 L.Ed.2d 50 (1960). Plaintiffs agree that a legitimate state interest
exists in protecting the public health, safety, and welfare and contest only
whether the regulatory scheme is rationally related to protecting these
legitimate interests. I find and conclude that they clearly are rationally
related to a legitimate Colorado state interest. I will, therefore, dismiss
plaintiffs claim based on violation of substantive due process.
F.
Second Claim for Relief—Equal Protection
The Equal Protection Clause requires
that no state "deny to any person within its jurisdiction the equal protection
of the laws." U.S. Const.Amend.
XIV, § 1. A violation of equal protection occurs when
the government treats someone differently than another who is similarly
situated. Jacobs, Visconsi & Jacobs v. City of
Lawrence, Kan., 927
F.2d 1111, 1118 (10th Cir.1991); see also City of Cleburne, Tex. v.
Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985); Landmark Land
Co. of Oklahoma, Inc. v. Buchanan, 874 F.2d 717, 722 (10th
Cir.1989). In determining whether an equal protection violation has occurred,
the court must (1) identify the questioned classification of groups, and (2)
determine whether the classification is valid applying the appropriate standard
of review. See Allright Colorado v. City and
County of Denver, 937 F.2d 1502, 1511 (10th
Cir.1991). Plaintiffs bear the burden of demonstrating the unconstitutionality
of the challenged classification and courts generally presume that the
legislative act is valid. Parham v. Hughes, 441 U.S. 347, 351, 99 S.Ct. 1742, 1745-46, 60 L.Ed.2d 269 (1979).
The standard of review applicable
when a plaintiff challenges economic or commercial legislation as violating the
equal protection requires the state or municipal defendant to show that the
classification has a rational basis. Jacobs, Visconsi
& Jacobs Co., 927 F.2d at 1119; see also City of Cleburne Living
Center, 473 U.S. 432,
105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Alamo
Rent-A-Car, Inc. v. Sarasota-Manatee Airport Auth., 825 F.2d 367 (11th
Cir.1987), cert. denied, 484 U.S. 1063, 108 S.Ct.
1022, 98 L.Ed.2d 987 (1988). The Supreme Court has recently reiterated this
principle:
Whether embodied in the Fourteenth
Amendment or inferred from the Fifth, equal protection is not a license for
courts to judge the wisdom, fairness, or logic of legislative choices. In areas
of social and economic policy, a statutory classification that neither proceeds
along suspect lines nor infringes fundamental constitutional rights must be
upheld against equal protection challenge if there is any reasonably
conceivable state of facts that could provide a rational basis for
the classification. [Citations omitted.] Where there are "plausible
reasons" for [legislative] action, "our inquiry is at an end."
[Citation omitted.]
Federal
Communications Comm'n v. Beach Communications, Inc., ___ U.S. ___, ___, 113 S.Ct.
2096, 2101, 124 L.Ed.2d 211 (1993) (emphasis in original). The limitation in this analysis is that a State may not
rely on a classification whose relationship to an asserted interest is so
attenuated as to render the distinction arbitrary or irrational. Cleburne,
473 U.S. at 446, 105 S.Ct. at 3257-58.
Here, plaintiffs' claim is grounded
in their objection to the policy choice made by the Colorado General Assembly
when it decided to regulate motor vehicle carriers of
[829 F.Supp. 1236]
passengers under the doctrine of regulated monopoly. Plaintiffs
identify three separate classification schemes. First, plaintiffs allege that
there are two groups of common carriers by motor vehicle: one that transports
property, and another that transports people. The transportation of property is
regulated under the scheme of "regulated competition," while the
transportation of people is regulated under the scheme of "regulated
monopoly." Defendants do not dispute this classification,
however, they argue there is a rational basis for it. Defendants have presented
that the Colorado General Assembly could have determined the following: 1) that
relaxed entry into the market for common carriers of property was acceptable as
an experiment despite the possibility of the elimination of some carriers or an
increase in the costs to carry the goods; 2) the availability of common
carriers of passengers is an important means of public transportation and,
thus, is too important to serve as a vehicle for an experiment in relaxed
regulation; 3) public transportation of passengers is too important to risk the
elimination of carriers, the disgruntlement of drivers who find their earnings
decreasing, or the increase in the rates paid by passengers. I find and
conclude, therefore, that a rational basis exists for this classification.
A second classification scheme
alleged by plaintiffs is a difference in classification among transporters of
passengers. Plaintiffs contend that while taxicab service is operated to impose
an insurmountable barrier to entry, other passenger services, such as off-road
scenic tours and charter buses seating over 32 passengers, impose no
regulations that operate as barriers to entry. Defendants argue that a
distinction between these two groups is justified because common carriers, such
as taxicabs, are responsible for providing service in a designated service
territory to any and all who seek its services while other passenger carriers
are not. Defendants contend considerations such as wear and tear on the roads,
control of traffic flow, and the need to assure the availability of different
forms of transportation could have motivated the General Assembly. Again,
defendants have presented a rational basis for this classification.
Plaintiffs claim a third classification
scheme exists in the organization of the taxicab industry within the state.
They contend that in almost every other market in Colorado the taxicab industry
truly is a "regulated monopoly" in that there is only one certified
taxicab company within a service area. In Denver, however, there is a
"shared regulated monopoly" as a result of the existing companies
being "grandfathered" into the regulated monopoly scheme decades ago
resulting in three operating companies. I find and conclude that plaintiffs
have failed to state how this "classification," works to deny them
equal protection. Nevertheless, there is certainly a conceivable rational basis
for grandfathering in existing companies at the time the regulatory scheme was
enacted. Accordingly, plaintiffs claim based on violation of equal protection
must fail.
G.
Third Claim for Relief—Equal Protection, Tillman
Plaintiff Tillman argues that the
effect of the PUC regulatory regime is to artificially limit the supply of
taxicabs in Denver which results in poor service for low-income neighborhoods
where Tillman resides and works. The effective ban on new companies denies
individuals in these neighborhoods, including Tillman, opportunities equal to
those of other Denver residents to enjoy taxicab services. Tillman argues that
the regulatory regime affects his fundamental right to intra-state travel,
requiring me to apply strict scrutiny in determining that the state regulations
are necessary to achieve a compelling government interest.
I have held, above, that Tillman
lacks standing to bring this third claim for relief. Even assuming Tillman's
standing to assert this claim, dismissal is appropriate for failure to state a
claim.
The strict scrutiny test is invoked
in either of two situations: first, where there is a "suspect"
classification based upon race, alienage or national
origin; and second, where a fundamental interest is at stake. These fundamental
interests include the right to vote, the right of access to the courts, and the
right to interstate travel.
[829 F.Supp. 1237]
San
Antonio Indep. School Dist. v. Rodriguez, 411
U.S. 1, 18-20, 32-36, 93 S.Ct. 1278, 1288-90,
1296-98, 36 L.Ed.2d 16 (1973). The Supreme Court has never directly considered
the right to intra-state travel. History teaches that the founding fathers were
concerned with the former and not the later. I decline to recognize such a
right under the facts presented here.
Accordingly, it is ORDERED that
1) defendants'
motion to dismiss the privileges and immunities claim brought by plaintiffs
Quick Pick Cabs and Ebong for lack of standing is
GRANTED;
2) defendants'
motion to dismiss the privileges and immunities claim brought by plaintiffs
Rowland Nwankwo and Girma Molalegne for lack of standing is DENIED;
3) defendants'
motion to dismiss the third claim for relief because Tillman lacks standing, or
alternatively for failure to state a claim, is GRANTED;
4) defendants'
motion to join necessary parties pursuant to Rule 19(a) is DENIED;
5) defendants'
request that I abstain from hearing this case is DENIED;
6) defendants' motion to dismiss
plaintiffs' first and second claims based on privileges and immunities,
substantive due process and equal protection, for failure to state a claim for
which relief may be granted is GRANTED;
7) this
action is dismissed and costs are awarded to defendants.