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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
FRANK J. MEROLA,
Plaintiff,

1:19-cv-899
(GLS/TWD)

v.
ANDREW M. CUOMO et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Harris, Beach Law Firm
677 Broadway
Suite 1101
Albany, NY 12207
99 Garnsey Road
Pittsford, NY 14534
FOR THE DEFENDANTS:
HON. LETITIA JAMES
New York State Attorney General
The Capitol
Albany, NY 12224
28 Liberty Street
New York, NY 10005
FOR THE UNITED STATES:
Department of Justice
Civil Division, Federal Programs
Branch
1100 L Street, NW

ELLIOT A. HALLAK, ESQ.
KARL J. SLEIGHT, ESQ.

KELLY S. FOSS, ESQ.

KEITH J. STARLIN
Assistant Attorney General

LINDA FANG
Assistant Solicitor General

CHARLES E.T. ROBERTS, ESQ.

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Washington, DC 20005
FOR AMICUS CURIAE:
HON. WILLIAM TONG
Attorney General of Connecticut
P.O. Box 120
55 Elm Street
Hartford, CT 06106

JOSHUA PERRY, ESQ.

Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
To the dissatisfaction of the parties and public-at-large, courts are at
times unable to pass upon the merits of a case for one reason or another.
There are various reasons why the ultimate question for which parties seek
judicial review cannot be broached. This is such a case. It should be
noted that cases like this one, where the court is constrained to dismiss
without deciding the legal issues at play — here, a challenge to New York’s
Driver’s License Access and Privacy Act (DLAPA),1 more commonly
referred to as the “Green Light Law” — does not mean in the vernacular
that the “law is legal,” despite what any politician may claim, (Dkt. No. 27,
Attach. 7 at 2). Indeed the court has not and cannot pass upon that

1

See L. 2019, ch 37.

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question no matter how compelling the arguments are on one side or the
other. With that caveat in mind, the court turns to the issues now before it.
Pending are a motion for a preliminary injunction filed by plaintiff
Frank J. Merola, Clerk of the County of Rennselaer, New York, and a cross
motion to dismiss pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure2 filed by defendants Andrew M. Cuomo, Governor of the State
of New York, Letitia A. James, Attorney General of the State of New York,
and Mark J.F. Schroeder, Commissioner of the New York State
Department of Motor Vehicles (DMV) (hereinafter collectively referred to as

2

Without any explanation why they may be properly considered on a Rule 12(c)
motion, the State submitted affidavits and attached exhibits from two Department of Motor
Vehicle employees for the purpose of providing background information. (Dkt. No. 30,
Attachs. 2-6.) The matters presented outside of the pleadings must be excluded from
consideration absent any argument why they may be properly considered without conversion
to summary judgment. See Fed. R. Civ. P. 12(d); Sira v. Morton, 380 F.3d 57, 67 (2d Cir.
2004) (explaining that the complaint includes any attached written instrument, materials
incorporated by reference, and documents integral to the complaint). It is unclear why the
State moved for dismissal pursuant to Rule 12(c) only. (Dkt. No. 30, Attach. 1 at 1.) When
standing is lacking, the court’s subject matter jurisdiction is implicated and the proper method
for seeking dismissal on that basis is Rule 12(b)(1), which would allow for the submission and
consideration by the court of matters outside the pleadings. In any case, where standing is
questioned, even under a rule that would ordinarily require the court to exclude matters
presented outside of the pleadings, like Rule 12(b)(6) or (c), “the district court is authorized to
consider matters outside the pleadings and make findings of fact when necessary.” First
Capital Asset Mgmt. v. Brickellbush, Inc., 218 F. Supp. 2d 369, 378 (S.D.N.Y. 2002) (citations
omitted), on reconsideration, 219 F. Supp. 2d 576 (S.D.N.Y. 2002), aff'd sub nom. First Capital
Asset Mgmt. v. Satinwood, Inc., 385 F.3d 159 (2d Cir. 2004). For this reason, the court has
considered Merola’s declaration, which was submitted in conjunction with his preliminary
injunction motion, (Dkt. No. 27, Attach. 2), to the extent that it bears on the standing question.

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“the State”). (Dkt. Nos. 27, 30.)3 For the reasons that follow, the State’s
cross motion to dismiss is granted, and Merola’s motion for a preliminary
injunction is denied as moot.
II. Background4
The DLAPA, which goes into effect on December 14, 2019, modifies
sections 201, 502, and 508 of the New York Vehicle and Traffic Law. See
L. 2019, ch 37. The amendments alter the New York State driver’s
licensing scheme in three material ways that are at issue here by: (1)
forbidding disclosure or sharing of applicant information except under
limited circumstances; (2) expanding the approved forms of identification
accepted for obtaining a driver’s license; and (3) requiring prompt notice to
an individual about whom a request for information was made by “any
agency that primarily enforces immigration law.” Id. §§ 2-6. Some county

3

The court has also considered an amicus curiae brief filed by the Attorney General of
Connecticut on behalf of the State of Connecticut and joined by California, the District of
Columbia, Delaware, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont, and Washington,
(Dkt. No. 33, Attach. 1), and a memorandum of law filed by the United States as intervenor
pursuant to Rule 5.1(c) of the Federal Rules of Civil Procedure and 28 U.S.C. § 2403(a) to
defend the constitutionality of 8 U.S.C. §§ 1373 and 1644, (Dkt. No. 34). The amicus curiae
brief and United States’ memorandum of law present arguments that are ultimately not
germane to the disposition of the case.
4

In addition to the court’s prior Summary Order, (Dkt. No. 22 at 1-2), the Decision and
Order in Kearns v. Cuomo, No. 1:19-CV-00902, 2019 WL 5849513, at *2-3 (W.D.N.Y. Nov. 8,
2019), appeal docketed, No. 19-3769 (2d Cir. Nov. 13, 2019), includes relevant background
information.

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clerks throughout the State of New York, like Merola, are required to
perform DMV functions, such as the issuance of driver’s licenses. See
N.Y. Veh. & Traf. Law § 205(1).
Broadly speaking, Merola challenges the DLAPA as prempted by
federal law. (Compl. ¶¶ 40, 78, Dkt. No. 1.) He contends that he confronts
a dilemma: comply with the DLAPA and violate the United States
Constitution and expose himself to federal criminal liability, or refuse to
comply with the DLAPA and be subject to removal from office and a loss of
funding. (Compl. ¶ 77; Dkt. No. 32 at 5-6.) The State promotes this
legislation as advancing “public safety and economic growth.” (Dkt. No.
30, Attach. 1 at 1.)
Some sixteen days before this action was commenced, a nearidentical case was commenced in the United States District Court for the
Western District of New York, involving a similar challenge to the DLAPA.
(Kearns v. Cuomo, Dkt. No. 1, 1:19-cv-902.) The plaintiff there, Michael
Kearns, is the Clerk of Erie County, and he brought his action against the
same defendants named in this matter. (See generally id.) That action
has since been dismissed for lack of standing and an appeal is pending
with the Second Circuit. See Kearns v. Cuomo, No. 1:19-CV-00902, 2019
5

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WL 5849513 (W.D.N.Y. Nov. 8, 2019), appeal docketed, No. 19-3769 (2d
Cir. Nov. 13, 2019).
III. Standards of Review
“The standard for addressing a Rule 12(c) motion for judgment on
the pleadings is the same as that for a Rule 12(b)(6) motion to dismiss for
failure to state a claim.” Wright v. Monroe Cmty. Hosp., 493 F. App’x 233,
234 (2d Cir. 2012) (internal quotation marks and citation omitted). For a
full discussion of the governing standard, the court refers the parties to its
prior decision in Ellis v. Cohen & Slamowitz, LLP, 701 F. Supp. 2d 215,
218 (N.D.N.Y. 2010), abrogated on other grounds by J.C. Christensen &
Assocs., Inc., 786 F.3d 191 (2d Cir. 2015).
As mentioned above, see supra note 2, to the extent that standing is
challenged, the State’s motion is properly considered under Rule 12(b)(1).
Under Rule 12(b)(1), the standard of review is similar to that of Rule
12(b)(6), except that the court “may refer to evidence outside the pleadings
. . . [and a] plaintiff asserting subject matter jurisdiction has the burden of
proving by a preponderance of the evidence that it exists.” Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000) (citations omitted).
IV. Discussion
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A.

Cross Motion to Dismiss
The State makes a handful of arguments in support of its cross

motion to dismiss. (Dkt. No. 30, Attach. 1.) Two of them urge dismissal for
the threshold issues of lack of standing and capacity, while the others go to
the merits of Merola’s claims. (Id. at 9-35.)
i.

Standing

Standing is a “threshold question,” which should be addressed at the
outset of the litigation. See Nat’l Org. for Women, Inc. v. Scheidler, 510
U.S. 249, 255 (1994). The broad contours of standing — an injury-in-fact,
causation, and redressability, see Lujan v. Defs. of Wildlife, 504 U.S. 555,
560-61 (1992) — and the finer points were discussed at length in Kearns v.
Cuomo, 2019 WL 5849513, but Merola’s sole theory of standing here is
different from that proffered in Kearns. (Dkt. No. 32 at 3-9.)
Relying on Board of Education of Central School District No. 1 v.
Allen, 392 U.S. 236 (1968), and Aguayo v. Richardson, 473 F.2d 1090 (2d
Cir. 1973), Merola contends that he “unquestionably [has] established
oath-of-office standing to pursue his claims in his official capacity as

7

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County Clerk.” (Dkt. No. 32 at 3.)5 While the State attempted to get out in
front of this theory in its memorandum of law filed in support of its cross
motion, it primarily focused on other bases of standing, or the lack thereof.
(Dkt. No. 30, Attach. 1 at 11-20.) That is, in part, the fault of the briefing
schedule, which was set to accommodate the sensitive timing issues in this
case, and the State has not had the opportunity6 to address Merola’s
specific contentions about oath-of-office standing raised in his response.
In any case, the State argues that compliance with the DLAPA is not at
odds with either the Federal or State Constitutions. (Id. at 19.) It claims
further that Merola’s subjective belief that his compliance would violate the
Federal Constitution is insufficient, and his argument about the adverse
consequences that would befall him (removal from office and loss of

5

Merola makes no effort to oppose the several other arguments, largely overlapping
with those that formed the basis of the dismissal for lack of standing in Kearns, which have
also been advanced by the State here. (Compare Dkt. No. 30, Attach. 1 at 11-20, with Dkt.
No. 32 at 3-9.) In addition, Merola, who brings this action only in his official capacity, has
requested leave to amend to add individual capacity claims in the event the court “deems it
necessary and appropriate.” (Dkt. No. 32 at 8 n.5.) The court does not engage in such handholding. If Merola was inclined to seek leave to amend, he should have done so consistent
with the Local Rules of Practice. See N.D.N.Y. L.R. 7.1(a)(4). Additionally, it is not clear how
Merola would establish standing by bringing his causes of action in his individual capacity.
Indeed, Kearns soundly rejected individual standing under nearly identical circumstances. See
2019 WL 5849513, at *6-12.
6

Despite the limitations of the briefing schedule, the State did not request permission
to file an otherwise unpermitted reply in further support of its cross motion, which is
contemplated by the Local Rules of Practice. See N.D.N.Y. L.R. 7.1(c).

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licensing revenue) are “highly speculative and premature.” (Id. at 19-20.)
In Allen, the Supreme Court indicated, in dicta, the existence of
standing where a plaintiff who“ha[s] taken an oath to support the United
States Constitution” is “in the position of having to choose between
violating [his] oath and taking a step—refusal to comply with [a challenged
state statute]—that would be likely to bring [his] expulsion from office and
also” a loss of funding. 392 U.S. at 241 n.5. This doctrine, sometimes
called the “‘dilemma’ theory of standing,” has been recognized by the
Supreme Court, Second Circuit, and other Circuits in subsequent cases,
although it is infrequently invoked. Bd. of Educ. of Mt. Sinai Union Free
Sch. Dist. v. N.Y. State Teachers Ret. Sys., 60 F.3d 106, 112 (2d Cir.
1995); see Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 544 n.7
(1986); Aguayo, 473 F.2d at 1100.
Here, Merola took an oath of office in which he “solemnly sw[ore] that
[he] w[ould] support the constitution of the United States, and the
constitution of the State of New York, and that [he] w[ould] faithfully
discharge the duties of the office . . . , according to the best of [his] ability.”
(Dkt. No. 27, Attach. 2 ¶ 8.) He argues that the only requirement he need
meet in order to establish oath-of-office standing is his good faith belief
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that compliance with the DLAPA would require him to violate the Federal
Constitution. (Dkt. No. 32 at 5.) Merola disputes the applicability of Finch
v. Mississippi State Med. Association, Inc., 585 F.2d 765, 774 (5th Cir.
1978), modified, 594 F.2d 163 (5th Cir. 1979), relied upon by the State,
(Dkt. No. 30, Attach. 1 at 19-20), which held that a mere belief that a
statute violates the constitution is insufficient to establish standing, see
Finch, 585 F.2d at 774, as at odds with Allen and Aguayo, and not binding
on this court in any event, (Dkt. No. 32 at 6). Alternatively, Merola argues
that he has adequately demonstrated a realistic threat of removal from
office or the loss of funding should those requirements be deemed a part of
the test for oath-of-office standing by this court. (Id. at 6-7.) Because the
briefing is lacking on the finer points, and Merola has made a colorable
argument for standing based on his oath of office, (id. at 5-6), dismissal on
this ground would be inappropriate at this juncture.
ii.

Capacity

The State contends that Merola lacks capacity to sue under New
York law and that he cannot demonstrate that he should benefit from an
exception to the general bar preventing municipalities and their officers
from challenging state legislation. (Dkt. No. 30, Attach. 1 at 9-11.) In
10

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opposition, Merola argues that the DLAPA would require him to violate a
federal constitutional proscription, namely the Supremacy Clause, as well
as a state constitutional proscription “on voting by non-citizens,” and that
he, therefore, has capacity to sue despite the general bar against suits by
municipal officers. (Dkt. No. 32 at 9.) Because Merola lacks capacity as
discussed below, dismissal is required.
Capacity, juxaposed with standing, “is conceived to be a party’s
personal right to litigate in a federal court.” 6A Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 1542 (3d ed. Supp.
2019). The “[c]apacity to sue or be sued is determined,” as relevant here,
“by the law of the state where the court is located.” Fed. R. Civ. P.
17(b)(3). In New York, municipalities, and, by extension, their officers, lack
capacity to sue because they “are merely subdivisions of the State, created
by the State for the convenient carrying out of the State’s governmental
powers and responsibilities as its agents.” City of New York v. New York,
86 N.Y.2d 286, 290 (1995). There are limited “exceptions to the general
rule barring local governmental challenges to State legislation,” only one of
which is at issue here: “where ‘the municipal challengers assert that if they
are obliged to comply with the State statute they will by that very
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compliance be forced to violate a constitutional proscription.’” Id. at 291-92
(quoting In re Jeter v. Ellenville Cent. Sch. Dist., 41 N.Y.2d 283, 287 (1977)
(citing Allen, 20 N.Y.2d 109, aff’d, 392 U.S. 236)); see Bd. of Educ. of
Roosevelt Union Free Sch. Dist. v. Bd. of Trustees of State Univ. of New
York, 185 Misc. 2d 704, 708 (Sup. Ct. 2000), aff’d as modified, 282 A.D.2d
166 (3d Dep’t 2001).
Merola contends that his compliance with the DLAPA will force him to
violate proscriptions in both the Federal and State Constitutions. (Dkt. No.
32 at 9.) He snarkily points the finger at the State for “not surprisingly,
fail[ing] to provide a single citation for the unsupportable argument that the
Supremacy Clause is not a ‘constitutional proscription.’” (Id.) While his
observation is true, it is similarly true that he failed to cite contrary
authority. Insofar as his one-sentence State Constitution argument is
concerned, which is best described as half-hearted, Merola provides no
citation to where in the State Constitution the “proscription on voting by
non-citizens,” (id.), exists, leaving the court to guess.
While the court is loathe to engage in semantics, it is necessary
here. A “proscription” is a prohibition or “an imposed restraint or
restriction.” Merriam Webster’s Collegiate Dictionary (10th ed. 1997).
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Anecdotally, New York courts have interpreted constitutional or statutory
proscriptions to be something expressly forbidden and along the lines of
“no (blank) shall (blank).” See, e.g., Bellanca v. N.Y. State Liquor Auth.,
54 N.Y.2d 228, 230-31 (1981) (referring to an older version of N.Y. Alco.
Bev. Cont. Law § 106(6-a)’s prohibition against topless dancing as a
“blanket proscription against all topless dancing” as well as New York State
Constitution Art. 1, § 8’s prohibition against any law abridging speech as a
proscription (emphasis added)); accord Weiner v. McCord, 264 A.D.2d
864, 866 (3d Dep’t 1999) (considering the following language: “No member
of this state shall be disfranchised” as an express constitutional
proscription).
With this interpretation in mind, Merola’s first argument carries no
weight. Indeed, the Supremacy Clause contains no proscription
whatsoever. The Clause in its entirety provides:
This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; and all
Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every State shall
be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.
U.S. Const. art. VI, cl. 2. No proscription is evident, unlike, for example,
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the First Amendment’s “Congress shall make no law . . .,” id. amend. I, or
the Fourth Amendment’s proclamation that the right against unreasonable
searches “shall not be violated,” id. amend. IV. The list of federal
constitutional proscriptions is long, but it does not include the Supremacy
Clause and, therefore, cannot support Merola’s assertion.
Merola’s argument about the State Constitution fares no better. As
mentioned above, no citation is provided to the supposed “proscription on
voting by non-citizens.” (Dkt. No. 32 at 9.) However, Article I, § 1 of the
New York State Constitution provides:
No member of this state shall be disfranchised, or
deprived of any of the rights or privileges secured to
any citizen thereof, unless by the law of the land, or
the judgment of his or her peers, except that the
legislature may provide that there shall be no primary
election held to nominate candidates for public office
or to elect persons to party positions for any political
party or parties in any unit of representation of the
state from which such candidates or persons are
nominated or elected whenever there is no contest or
contests for such nominations or election as may be
prescribed by general law.
If this is the wellspring of the proscription referenced by Merola, it does not
help his cause. The language contains a proscription, see Weiner, 264
A.D.2d at 866 — a prohibition against disenfranchisement — but it is not

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what Merola claims it to be: a proscription on voting by non-citizens.7 The
court by no means intends to intimate that the DLAPA results in
disenfranchisement, but, even if it did along the lines of Merola’s argument,
his claim that “as the State agent offering voter registration” he would be
required “to violate the State Constitution proscription on voting by noncitizens,” (Dkt. No. 32 at 9), is steps removed and wholly speculative. The
DLAPA requires no such conduct by Merola. This is chiefly so because
any prospective non-citizen voter licensed to drive under the DLAPA would
have to affirmatively lie about his or her eligibility to vote. (Dkt. No. 30,
Attach. 1 at 4-5.) Ultimately, the county board of elections is tasked with
review and examination of voting applications and verification of the
applicant’s identity. See N.Y. Elec. Law § 5-210(8)-(9). For obvious
reasons, it cannot be said that Merola would be forced to violate the State
Constitution’s proscription against disenfranchisement in the event that
such a person engages in criminal conduct. For all of these reasons,
Merola cannot demonstrate that he has capacity to sue under the

7

The court is left to guess at whether Merola intends to suggest that watering down the
vote with ineligible voters who fraudulently register disenfranchises lawful voters. Just like his
failure to elaborate upon his argument about where in the State Constitution the proscription
exists, he has not adequately explained his argument in this regard, which is a basis to reject
it.

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constitutional proscription exception, and dismissal is required.
B.

Preliminary Inunction
Because dismissal is required given Merola’s lack of capacity to bring

suit, his motion for a preliminary injunction, (Dkt; No. 27), is denied as
moot.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the State of Connecticut’s letter motion seeking
permission to file an amicus curiae brief (Dkt. No. 33) is GRANTED; and it
is further
ORDERED that the State’s letter motion seeking permission to
respond to the United States’ memorandum of law (Dkt. No. 35) is
DENIED; and it is further
ORDERED that the State’s cross motion to dismiss (Dkt. No. 30) is
GRANTED, and the complaint (Dkt. No. 1) is DISMISSED; and it is further
ORDERED that Merola’s motion for a preliminary injunction (Dkt. No.
27) is DENIED as moot; and it is further
ORDERED that the Clerk close this case; and it is further

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ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
December 13, 2019
Albany, New York

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