May the legislature amend a law having state-wide impact to treat counties within the state in a different manner?  Answer:  Yes.

At the outset of its decision in Empire State Chapter of Associated Builders and Contractors, Inc. v. Smith, 21 NY3d 309 (2013), the Court of Appeals held that “where the Legislature has enacted a law of state-wide impact on a matter of substantial State concern but has not treated all areas of the State alike, the Home Rule section of the State Constitution does not require an examination of the reasonableness of the distinctions the Legislature has made”.  Id. at 313.

The Wicks Law relates to the requirements to be followed by public entities seeking bids on construction contracts.  From its inception until 2008, “the Wicks Law applied everywhere in the State to contracts whose costs exceed $50,000.”  Id. at 314.

In 2008, the Legislature amended the Wicks Law with respect to the $50,000 threshold.

“The new, higher thresholds, unlike the old one, are not uniform throughout the State.  They are $3 million in the five counties located in New York City; $1.5 million in Nassau, Suffolk and Westchester Counties; and $500,000 in the other 54 counties.”  Id.  Plaintiffs’ challenged the 2008 amendment as violating the State Constitution (the so-called Home Rule section) “by unjustifiably favoring the eight counties with higher thresholds – i.e., by loosening Wicks Law restrictions to a greater extent for them than for other counties.”  Id.  Supreme Court dismissed the complaint; and a divided Appellate Division affirmed.

The State Constitution provides, in substance, that “every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this Constitution or any general law relating to its property, affairs or government”.  Id. at 316.

The Home Rule section of the State Constitution provides that the legislature “[s]hall have the power to act in relation to the property, affairs or government of any local government only by general law, or by special law only [in the following circumstances]”:  either based upon a Home Rule message from the Legislature or a certificate of necessity from the Governor.”  Id. Neither of the prerequisites were obtained in this case.  To the contrary, the 2008 amendments to the Wicks Law was based upon an argument that such an amendment was permitted without a “Home Rule message” or certificate of necessity from the Governor where the subject “is a matter of substantial State concern”.  Id. at 317.

The Court of Appeals held that “the manner of bidding on public construction contracts is a matter of substantial State concern [and the amendments] though they do not treat all counties alike unquestionably affect the State as a whole.”  Id.

The Court of Appeals noted that:  “to subject legislation like the 2008 amendments to the Wicks Law to Home Rule analysis would lead us into a wilderness of anomalies.  If state-wide legislation like this is subject to Home Rule restrictions, how are the restrictions to be implemented?  From where must a home rule message come?”  Id. at 319.

Accordingly, the Court of Appeals concluded that “the Home Rule provisions of the Constitution were never intended to apply to legislation like this.  They were intended to prevent unjustifiable State interference in matters of purely local concern.  No one contends such interference has occurred here.” Id.  [Parenthetically, the Court of Appeals also held that several of plaintiffs’ claims relating to the apprenticeship provisions of the 2008 legislation arguably unconstitutionally discriminated against out-of-state contractors.]