American Trucking Associations, Inc. et al v. Alviti

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
____________________________________
)
AMERICAN TRUCKING ASSOCIATIONS, )
INC.; CUMBERLAND FARMS, INC.; )
M&M TRANSPORT SERVICES, INC.; and )
NEW ENGLAND MOTOR FREIGHT, INC., )
)
Plaintiffs, )
)
v. ) C.A. No. 18-378-WES
)
PETER ALVITI, JR., in his official )
capacity as Director of the Rhode )
Island Department of Transportation;)
and RHODE ISLAND TURNPIKE AND )
BRIDGE AUTHORITY, )
)
Defendants. )
____________________________________)
ORDER
This pretrial order resolves certain legal and evidentiary
questions raised by the parties to narrow the scope of issues in
this case. Consequently, for the reasons stated in this Order,
Defendants’ Motion for Judgment on the Pleadings, ECF No. 41, is
DENIED.
I. Background
This case involves a dispute over implementation and
collection of highway tolls in Rhode Island. The Court has more
fully articulated the facts of this case in American Trucking
Associations, Inc. v. Alviti, 377 F. Supp. 3d 125 (D.R.I. 2019).
In short, Plaintiffs — various trucking, transport, and freight
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companies — have brought a constitutional challenge to the “Rhode
Island Bridge Replacement, Reconstruction, and Maintenance Fund
Act of 2016” (“RhodeWorks Act”), R.I. General Laws § 42-13.1-1 et.
seq. Plaintiffs allege that the RhodeWorks Act violates the
Commerce Clause of the United States Constitution because the
statute is discriminatory in purpose and effect, the toll scheme
does not fairly approximate the use of the tolled facilities, and
the tolls are excessive in relation to the benefit conferred on
the user. See Compl. ¶¶ 3-7, ECF No. 1.
Upon return to this Court after an appeal to the United States
Court of Appeals for the First Circuit, see American Trucking
Ass’ns, Inc. v. Alviti, 944 F.3d 45 (1st Cir. 2019), Plaintiffs
filed a Motion for Preliminary Injunction, see ECF No. 38.
Defendants, in turn, filed a Motion for Judgment on the Pleadings,
to which Plaintiffs objected. See Defs.’ Mot. J. on Pleadings;
Pls.’ Opp’n to Defs.’ Mot. J. on Pleadings, ECF No. 46. The Court
held a hearing on both motions on May 28, 2020. During and
following that hearing, the Court discussed with the parties the
need for further briefing on several issues, including those
subjects addressed in this Order. The Court now makes certain
rulings to narrow the issues at hand and aid in focusing the scope
of discovery.
II. Discussion
A. Motion for Judgment on the Pleadings
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1. Legal Standard
In reviewing a motion for judgment on the pleadings, the Court
“accept[s] the non-movant’s well-pleaded facts as true and draw[s]
all reasonable inferences in the non-movant’s favor.” Martinez v.
Sun Life Assurance Co. of Canada, 948 F.3d 62, 68 (1st Cir. 2020).
A court should grant a motion for judgment on the pleadings “only
if the uncontested and properly considered facts conclusively
establish the movant’s entitlement to a favorable judgment.” Id.
(quoting Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 54 (1st Cir.
2006)).
2. Analysis
In short, Defendants argue that Congress has authorized the
tolling at issue through the Intermodal Surface Transportation
Efficiency Act of 1991 (“ISTEA”), 23 U.S.C. § 129. Defs.’ Mot. J.
on Pleadings 12-14. Consequently, Defendants contend, the
RhodeWorks Act is immune from Commerce Clause scrutiny.1 Id. at
16. In their supplemental memoranda, Defendants suggest that, at
a minimum, Congressional authorization through ISTEA disposes of
two prongs of the Commerce Clause analysis – that the tolls must
1 In support of their arguments, Defendants rely on two
recent decisions from the Second and Third Circuit Courts of
Appeal. See Defs.’ Mot. J. on Pleadings 1-2 (citing Owner Operator
Indep. Drivers Ass’n v. Pa. Tpk. Comm’n, 934 F.3d 283 (3d Cir.
2019) and Am. Trucking Ass’ns, Inc. v. N.Y. State Thruway Auth.,
886 F.3d 238 (2d Cir. 2018)). These cases largely focus on the
allocation of toll revenue for purposes other than maintenance of
toll facilities.
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be “based on some fair approximation of use of the facilities . .
. [and] not excessive in relation to the benefits conferred . . .
.” Nw. Airlines, Inc. v. Cnty. of Kent, 510 U.S. 355, 369 (1994);
see Defs.’ Suppl. Mem. Following June 18, 2020 Chambers Conference
(“Defs.’ Suppl. Mem.”) 2, ECF No. 68.
Congress has the power to regulate interstate commerce, and
through that authority, it “may ‘redefine the distribution of power
over interstate commerce’ by ‘permit[ting] the states to regulate
the commerce in a manner which would otherwise not be
permissible.’” S.-Cent. Timber Dev., Inc. v. Wunnicke, 467 U.S.
82, 87-88 (1984) (quoting S. Pacific Co. v. Arizona, 325 U.S. 761,
769 (1945)). “When Congress so chooses, state actions which it
plainly authorizes are invulnerable to constitutional attack under
the Commerce Clause.” Ne. Bancorp v. Bd. of Governors of Federal
Reserve Sys., 472 U.S. 159, 174 (1985). Defendants must meet a
significant burden to demonstrate that this principle applies here
— congressional consent for the state action must be either
“expressly stated” or “made unmistakably clear.” New York State
Dairy Foods, Inc. v. Ne. Dairy Compact Comm., 198 F.3d 1, 9 (1st
Cir. 1999) (internal citations omitted).
After careful review, the Court is unpersuaded by Defendants’
broad interpretation of congressional authorization in ISTEA. It
is true that Congress in ISTEA expressly authorized a state to
allocate toll revenue for purposes other than those related to
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maintenance of the toll facility. See 23 U.S.C. § 129(a)(3)(v)(“if
the public authority certifies annually that the tolled facility
is being adequately maintained, [toll revenue may be used for] any
other purpose for which Federal funds may be obligated by a State
under title [23].”); see also Am. Trucking Ass’ns, Inc. v. New
York State Thruway Auth., 886 F.3d 238, 246-47 (2d Cir. 2018).
However, this language, along with the other provisions of ISTEA,
does not evince an “unmistakably clear” intent by Congress to
completely shield state highway tolling activity from Commerce
Clause challenges.2 For this reason, Defendants’ Motion for
Judgment on the Pleadings is denied.
As to Defendants’ alternative argument, Plaintiffs concede
that congressional authorization in ISTEA dispensed of at least
one element of the Commerce Clause analysis – the excessiveness
prong. Pls.’ Suppl. Reply Br. 3-4, ECF No. 70. But as to fair
approximation, Plaintiffs contend that this factor is not
displaced because it serves a different purpose — while the
2 Defendants also point to the First Circuit’s decision in
Trailer Marine Transport Corp. v. Rivera Vazquez, 977 F.2d 1 (1st
Cir. 1992), for the proposition that congressional authorization
may insulate state action from Commerce Clause scrutiny, even where
the state action is discriminatory. Defs.’ Reply to Pls.’ Suppl.
Mem. Following June 18, 2020 Chambers Conference (“Defs.’ Suppl.
Reply”) 2 (citing Trailer Marine Transport Corp., 977 F.2d at 12),
ECF No. 71. While the Court agrees with Defendants’ representation
of this legal principle, the federal statute at issue in Trailer
Marine sweeps much more broadly than the limited authorization in
ISTEA. See Trailer Marine, 977 F.2d at 12-13 (citing 15 U.S.C. §§
1011-15).
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“excessiveness limit focuses on the amount [of tolls] collected,”
fair approximation “focuses on the method used by the state to
impose the charge.” Id. at 5 (emphasis in original). For this
reason, Plaintiffs argue, a tolling scheme could violate the
Commerce Clause “even if, under ISTEA, a state may use the tolls
collected for purposes that do not benefit the taxpayer at all.”
Id. The Court agrees; it does not read the congressional
authorization in ISTEA to completely displace the fair
approximation element of the Commerce Clause analysis. Therefore,
at trial, the parties may introduce evidence related to
discriminatory purpose, discriminatory effect, and fair
approximation.3
B. Evidentiary Rulings
Plaintiffs have expressed an intent to introduce at trial
several statements made by state officials in support of the
argument that the RhodeWorks Act was enacted with discriminatory
purpose or intent.4 See Pls.’ Suppl. Br. 3, ECF No. 69. Many of
3 Significant issues remain to be sorted out at trial
regarding all three of these elements, some of which the parties
have addressed in their briefing. For example, is proof of
discriminatory purpose alone enough to establish a Commerce Clause
violation? And, what are the outer limits of “fair approximation”?
These issues will be reserved for another day.
4 In the Complaint, Plaintiffs point to statements made by
Governor Gina Raimondo, Speaker Nicholas Mattiello, two of the
Governor’s spokespersons, Rhode Island Department of
Transportation Director Peter Alviti, and Representative Stephen
Ucci. See Compl. ¶¶ 79-83, 87-88, 92, 99.
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these statements are contained within press reports in the
Providence Journal or other news publications. See Compl. ¶¶ 79-
83, 87-88, 92, 99. Defendants challenge the admissibility of these
statements on relevance and hearsay grounds. See Defs.’ Suppl.
Mem. 11-19.
1. Relevance
Defendants proffer several reasons why the statements by
Rhode Island officials are not relevant to the determination of
legislative purpose. Specifically, they contend that (1) the words
of the statute and legislative findings provide clear evidence
that the statute was not enacted with a discriminatory purpose;
(2) many of the statements were published prior to the introduction
of the bill that became law; and (3) statements by individual
legislators or officials have no probative value where the
legislature has clearly expressed a purpose within the text of the
statute. Defs.’ Suppl. Mem. 14-17.
True, “[t]he words of a legislative body itself, written or
spoken contemporaneously with the passage of a statute, are usually
the most authoritative guide to legislative purpose.” Wine &
Spirits Retailers, Inc. v. Rhode Island, 481 F.3d 1, 13 (1st Cir.
2007). However, in the context of dormant Commerce Clause
challenges, courts have considered circumstantial evidence offered
as proof of discriminatory purpose, so long as the party offering
it “show[s] the relationship between the proffered evidence and
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the challenged statue.” Alliance of Auto. Mfrs. v. Gwadosky, 430
F.3d 30, 39 (1st Cir. 2005). Here, Plaintiffs point to statements
made by certain state officials who were allegedly key players in
the crafting and/or passing of this legislation. These statements
clearly could be relevant to the issue of discriminatory intent
and therefore admissible, if not excluded for other reasons.
Importantly, however, should this evidence be introduced at trial,
the Court will need to decide how much weight to afford it in
relation to the text of the statute, which offers the best evidence
of the legislature’s intent. See Wine & Spirits Retailers, 481
F.3d at 13. The Court takes no position on this question at this
juncture.
2. Hearsay
Defendants argue that both the press reports and the
statements contained therein constitute inadmissible hearsay.
Defs.’ Suppl. Mem. 17. Newspaper articles quite often contain
multiple levels of hearsay. Horta v. Sullivan, 4 F.3d 2, 8 (1st
Cir. 1993); see Brooks v. Miller, 158 F.3d 1230, 1242 (11th Cir.
1998). In order for this evidence to be admissible, both the
statements and the press reports must fall under an exception to
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the hearsay rule or classify as non-hearsay. See Fed. R. Evid.
805; Fed. R. Evid. 801(c).
a. Statements
Plaintiffs contend that the statements made by Director
Alviti, Speaker Mattiello, and Representative Ucci are not hearsay
because they will be offered to show intent and not the truth of
the matter asserted; namely, Plaintiffs say they will be offered
to show “what the officials believed” or “the ground on which they
advocated for enactment.”5 Pls.’ Suppl. Br. 7, 9. The Court
agrees. To the extent that Plaintiffs offer statements for this
purpose and not to prove the underlying factual assertion, the
statements are not hearsay and are admissible. See Staniewicz v.
Beecham, Inc., 687 F.2d 526, 530 (1st Cir. 1982).
Some of the statements in Plaintiff’s Complaint, however,
purport to specifically describe the intent of the declarant —
5 Plaintiffs highlight statements made by these officials in
the Providence Journal, Providence Business News, and The Hummel
Report. See, e.g., Compl. ¶ 80 (quoting Mary MacDonald, Improved
business climate positions R.I. for growth, Providence Business
News, Dec. 23, 2015 (citing Speaker Mattiello: “a lot of the burden
for the repair of our bridges, overpasses and infrastructure is
passed on to out-of-state truckers”; “a lot of the cost gets
shifted to out-of-state truckers”)); id. ¶ 83 (quoting Jim Hummel,
Taking a Toll, The Hummel Report, Mar. 19, 2018 (purporting to
quote Director Alviti as stating “the majority of tolls that are
going to be paid here are from out of state trucks”)); id. ¶ 87
(quoting Patrick Anderson, R.I. House passes Raimondo’s truck-toll
plan, The Providence Journal, Feb. 11, 2016, (citing Rep. Stephen
Ucci: “[t]he tolling relies on 60 percent revenue from out of state
trucks who would have never paid to come through this state”)).
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Governor Raimondo.6 To the extent that statements attributed to
Governor Raimondo are introduced for the truth of the matter
asserted — the Governor’s intent — the statements would not be
hearsay because they are admissions of an opposing party. See
Fed. R. Evid. 801(d)(2)(D). As Plaintiffs note, the state is
effectively the party in interest in this case, and Governor
Raimondo is clearly an agent of the state. See Pls.’ Suppl. Br.
7; see also Bennet v. Yoshina, 98 F. Supp. 2d 1139, 1154 (D. Haw.
2000) (finding that where several state officials were “sued in
his or her official capacity, the suit can properly be seen as an
action against the state itself”).7 Accordingly, such statements
are admissible.
Additionally, to the extent that statements made by the
Governor’s spokespersons are offered for the truth of the matters
6 For example, it is possible Plaintiffs would introduce the
following statement by the Governor for the truth of the matter
asserted: “The reason I prefer the tolling proposal is because the
majority of the burden is on out-of-state truckers and out-of-
state companies who are using—and I would say abusing—our roads .
. . .” Compl. ¶ 80 (quoting Patrick Anderson & Katherine Gregg,
Raimondo: Plan shifts burden off R.I., Providence Journal, Oct.
29, 2015). There are several things asserted in the statement, one
of which is the reason why the Governor preferred the “tolling
proposal”, and Plaintiffs would be introducing this for its truth.
7 Certainly, Rule 801(d)(2) should not be extended to every
statement made by any state employee. See Bennett v. Yoshina, 98
F. Supp. 2d 1139, 1154 (D. Haw. 2000) (“This does not mean,
however, that every state employee therefore speaks for the
state.”) But that is not the case here. Unlike the individual
legislators in Bennett, Governor Raimondo does speak for the state
through her role as chief executive official.
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asserted, this evidence may be admissible under Rule 801(d)(2)(C);
however, this evidence would likely be cumulative should
Plaintiffs introduce the Governor’s statements.
b. Newspaper Articles
The second layer of hearsay (the newspaper article hearsay)
is less straightforward. Plaintiffs argue that the press reports
within which the statements are reproduced are admissible under
the residual exception to hearsay, Federal Rule of Evidence 807.
Pls.’ Suppl. Br. 11. In order for a statement to be admissible
under this exception, it must be (1) “supported by sufficient
guarantees of trustworthiness” and (2) “more probative on the point
for which it is offered than any other evidence that the proponent
can obtain through reasonable efforts.” Fed. R. Evid. 807. The
First Circuit has instructed that “Congress meant for trial courts
to admit evidence under the residual exception ‘very rarely, and
only in exceptional circumstances.’” Bradley v. Sugarbaker, 891
F.3d 29, 34 (1st Cir. 2018) (quoting United States v. Benavente
Gomez, 921 F.2d 378, 384 (1st Cir. 1990)).
The Court finds that Plaintiffs have met the trustworthiness
requirement. However, so long as the state officials are available
to testify in a deposition or at trial, the press reports are not
the most probative evidence on the subjects and are inadmissible.8
8 Importantly, if the declarants are not available to testify
- whether due to the assertion of privilege or other basis for
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See Planned Parenthood Se., Inc. v. Strange, 33 F. Supp. 3d 1381,
1385 (M.D. Ala. 2014) (rejecting the plaintiffs’ request to
introduce newspaper articles under the residual exception where
the party could have elicited testimony from the legislators or
reporters as to the statements at issue).
C. Privilege
In their Supplemental Memorandum, Defendants assert that
should the Court admit statements made by the Governor, the
Speaker, and Representative Ucci, certain state and federal
privileges may apply to preclude questioning of these officials as
to the context of the statements. Defs.’ Suppl. Mem. 20.
Assertions of privilege are not yet before the Court in this
matter, so it is unclear if and when such claims of privilege may
be asserted and for what purpose. Nonetheless, Defendants request
a pretrial ruling on the legal framework that would apply in order
to inform the scope of discovery and related matters.9 Id. at 20-
21.
In this litigation – a federal constitutional challenge to
state law, in federal court - federal common law principles control
unavailability - the Court would be inclined to admit the press
reports under the residual exception.
9 Defendants argue that an evidentiary ruling admitting the
statements may raise ethical issues for Defendants’ counsel
because the Rhode Island “speech in debate” clause, see R.I. Const.
art. VI, § 5, and an implied executive privilege might forbid
counsel from questioning the state legislators and the Governor
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on the question of privilege. See McDonough v. City of Portland,
No. 2:15-cv-153-JDL, 2015 WL 12683663, at *1 (D. Me. Dec. 31, 2015)
(“[W]hen a state or municipal legislator seeks to invoke
legislative privilege in federal court with respect to a federal
claim, ‘[t]he common law – as interpreted by United States courts
in the light of reason and experience – governs [the] claim of
privilege[.]’”) (quoting Fed. R. Civ. P. 501) (emphasis
added)(alternations in original). Rooted in the Speech or Debate
Clause of the United States Constitution, state legislators and
non-legislators performing legislative acts enjoy a parallel
privilege similar in scope to that afforded to federal
legislators.10 Nat’l Ass’n. of Social Workers v. Hardwood, 69 F.3d
622, 629-30 (1st Cir. 1995).
However, courts have held that the evidentiary privilege
afforded to state legislators under common law is limited.
McDonough, 2015 WL 12683663, at *2 (quoting ACORN (N.Y. Ass’n of
Comty. Orgs. For Reform Now) v. Cnty of Nassau, No. CV 05-
2301(JFB)(WDW), 2007 WL 2815810, at *2 (E.D.N.Y. Sept. 25, 2007))
about their public statements. Defs.’ Suppl. Mem. 24. Defendants’
counsel has indicated that he may seek a state ethics advisory
opinion on this question.
10 Legislative privilege may extend to state executive
officials where those officials “perform legislative functions.”
See Bogan v. Scott-Harris, 523 U.S. 44, 55 (1998) (finding that
legislative immunity extended to the Governor because
“introduction of a budget and signing into law an ordinance . . .
were integral steps in the legislative process”).
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(“The Supreme Court has. . . rejected the notion that the common
law immunity of state legislators gives rise to a general
evidentiary privilege.”). Should state officials assert an
evidentiary privilege, “the court must balance the extent to which
the production of the disputed evidence would have a chilling
effect on the [state official] against those factors favoring
disclosure.” Id. (internal citations omitted). In making this
determination, the Court would look to the following factors:
(i) the relevance of the evidence sought to be protected;
(ii) the availability of other evidence; (iii) the
seriousness of the litigation and the issues involved;
(iv) the role of the government in the litigation; and
(v) the possibility of future timidity by government
employees who will be forced to recognize that their
secrets are violable.
Id. Accordingly, even if similar state privileges afford a broader
protection for state officials in the context of state law claims,
federal common law dictates the bounds of privilege in this case,
and will guide the Court’s rulings on any claims of privilege here.
III. Conclusion
For the foregoing reasons, Defendants’ Motion for Judgment on
the Pleadings, ECF No. 41, is DENIED. Furthermore, as to the press
reports quoting state officials which Plaintiffs intend to
introduce as evidence of discriminatory purpose, the Court finds:
(1) the statements are relevant, but if admitted into evidence
will be afforded proper weight; (2) the statements within the press
reports are not hearsay (the first level of hearsay analysis); but
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(3) the residual exception does not apply to the press reports so
long as the state officials are available to testify, and therefore
the statements would be inadmissible under the hearsay rules;
however, if such officials are unavailable, for whatever reason,
the residual exception would apply and the statements would be
admissible. Finally, the Court finds that federal common law would
apply to any assertions of privilege from state officials.
IT IS SO ORDERED.
William E. Smith
District Judge
Date: July 20, 2020
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