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APL-2013-00291New York County Clerk’s Index No. 653584 /12
Court of AppealsSTATE OF NEW YORK
NEW YORK STATEWIDE COALITION OF HISPANIC CHAMBERS OF COMMERCE,THE NEW YORK KOREAN-AMERICAN GROCERS ASSOCIATION, SOFT DRINK ANDBREWERY WORKERS UNION, LOCAL 812, INTERNATIONAL BROTHERHOOD OFTEAMSTERS, THE NATIONAL RESTAURANT ASSOCIATION, THE NATIONALASSOCIATION OF THEATRE OWNERS OF NEW YORK STATE and THE AMERICANBEVERAGE ASSOCIATION,
Plaintiffs-Petitioners-Respondents,
For a Judgment Pursuant to Article 78 and 30 of the Civil Practice Law and Rules
—against—
THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE, THENEW YORK CITY BOARD OF HEALTH, and DR. THOMAS FARLEY, in his officialcapacity as Commissioner of the New York City Department of Health and MentalHygiene,
Defendants-Respondents-Appellants.
BRIEF OF PLAINTIFFS-PETITIONERS-RESPONDENTS IN RESPONSE TO AMICI CURIAE
d
JAMES E. BRANDTLATHAM & WATKINS LLP885 Third AvenueNew York, New York 10022Telephone: (212) 906-1200Facsimile: (212) [email protected] for Plaintiff-Petitioner-
Respondent The American Beverage Association
Of Counsel:RICHARD P. BRESS
(admitted pro hac vice)WILLIAM K. RAWSON
(admitted pro hac vice)MICHAEL E. BERN
(admitted pro hac vice)KALA SHERMAN-PRESSER
(admitted pro hac vice)ANDREW D. PRINS
(admitted pro hac vice)LATHAM & WATKINS LLP555 Eleventh Street, NW, Suite 1000 Washington, DC 20004Telephone: (202) 637-2200Facsimile: (202) [email protected]
May 22, 2014
(For Continuation of Appearances See Inside Cover)
JAMES W. QUINNSALVATORE A. ROMANELLOGREGORY SILBERTWEIL, GOTSHAL & MANGES LLP767 Fifth AvenueNew York, New York 10153Telephone: (212) 310-8000Facsimile: (212) [email protected]
Counsel for Plaintiff-Petitioner-Respondent The NationalRestaurant Association
STEVEN F. MOLOBEN QUARMBYMOLOLAMKEN LLP540 Madison AvenueNew York, New York 10022Telephone: (212) 607-8170Facsimile: (212) [email protected]
Counsel for Plaintiffs-Petitioners-Respondents The New YorkStatewide Coalition of HispanicChambers of Commerce, The NewYork Korean-American GrocersAssociation
EVAN H. KRINICKBARRY I. LEVYBRIAN L. BANKRIVKIN RADLER, LLP926 RXR PlazaUniondale, New York 11556-0926Telephone: (516) 357-3483Facsimile: (516) [email protected]
Counsel for Plaintiff-Petitioner-Respondent Soft Drink andBrewery Workers Union, Local812, International Brotherhood of Teamsters
MATTHEW N. GRELLERMATTHEW N. GRELLER, ESQ., LLC75 Clinton AvenueMillburn, New Jersey 07041 Telephone: (917) 345-0005Facsimile: (973) [email protected]
Counsel for Plaintiff-Petitioner-Respondent The NationalAssociation of Theatre Owners of New York State
CORPORATE DISCLOSURE STATEMENT
In compliance with Rule 500.1(f) of the Rules of Practice for the Court of
Appeals of the State ofNew York, Plaintiffs state the following:
1. The New York Statewide Coalition of Hispanic Chambers of
Commerce is a not-for-profit organization under 26 U.S.C. § 501(c)(6),
incorporated in the State of New York. It has no parents or subsidiaries.
2. The New York Korean-American Grocers Association is a not-for-
profit organization under 26 U.S.C. § 501(c)(6), incorporated in the State ofNew
York. It has no parents or subsidiaries.
3. The Soft Drink and Brewery Workers Union, Local 812, International
Brotherhood of Teamsters is an unincorporated association recognized under New
York's General Associations Law and is recognized as a labor organization
pursuant to the National Labor Relations Act, 29 U.S.C. § 158. It has no parents or
subsidiaries.
4. The National Restaurant Association is a not-for-profit organization
under 26 U.S.C. § 501(c)(6), incorporated in the State of Illinois. Its subsidiaries
are Alliance Business Solutions, LLC; ARN 2055, LLC; The National Restaurant
Association Educational Foundation; National Restaurant Association Military
Foundation; National Restaurant Association Services, LLC; and National
Restaurant Association Solutions, LLC.
5. The National Association ofTheatre Owners ofNew York State is a
not-for-profit organization under 26 U.S.C. § 501(c)(6), incorporated in the State
of New York. It has no parents or subsidiaries.
6. The American Beverage Association is a not-for-profit organization
under 26 U.S.C. § 501(c)(6), incorporated in the District of Columbia. It has no
parents or subsidiaries.
TABLE OF CONTENTS
Page(s)
TABLE OF AUTHORITIES .................................................................................... ii
CORPORATE DISCLOSURE STATEMENT ......................................................... I
PRELIMINARY STATEMENT ................................................................................ !
ARGUMENT ............................................................................................................. 4
I. AMICI ARE ASKING THIS COURT TO REWRITE BOREAL!, NOT APPLY IT ............................................................................................... 4
A. Writing on a Clean Slate ............................................................. 5
B. Acting Where The Legislature Failed to Reach Agreement ................................................................................ 10
C. Impermissibly Balancing Health, Economic, and Political Concerns ................................................................................... 12
D. Not Exercising Specialized Expertise ...................................... 14
II. AMICI'S CALL TO OVERRULE BOREAL! SHOULD BE REJECTED ................................................................................................... 15
III. AMICI'S POSITION WOULD INVEST LOCAL BOARDS OF HEALTH WITH BREATHTAKINGLY EXPANSIVE POWER ............... 24
CONCLUSION ....................................................................................................... 26
1
TABLE OF AUTHORITIES
CASES
PAGE(S) AKM LLC v. Sec y of Labor,
675 F.3d 752 (D.C. Cir. 2012) ............................................................................ 22
Am. Kennel Club v. City of N.Y., Index 13584/89 (Sup. Ct. N.Y. Sept. 19, 1989) .................................................. 19
Am. Library Ass 'n v. FCC, 406 F.3d 689 (D.C. Cir. 2005) ............................................................................ 23
Boreali v. Axelrod, 71 N.Y.2d 1 (1987) ...................................................................................... passim
Bourquin v. Cuomo, 85 N.Y.2d 781 (1995) .............................................................................. ~ ........... 22
Casado v. Markus, 16 N.Y.3d 329 (2011) ..................................................................................... 5, 22
Ellicott Grp., LLCv. State ofN.Y. Exec. Dep't Off. ofGen. Servs., 85 A.D.3d 48 (4th Dep't 2011) ........................................................................... 17
FDA v. Brown & Williamson Tobacco Corp., 529 u.s. 120 (2000) ............................................................................................. 22
Gonzales v. Oregon, 546 u.s. 243 (2006) ............................................................................................. 22
Grossman v. Baumgartner, 17 N.Y.2d 345 (1966) ........................................................................................... 7
Health Ins. Ass 'n v. Corcoran, 154 A.D.2d 61 (3d Dep't 1990) .......................................................................... 17
Lezette v. Bd. ofEduc., Hudson City School Dist., 35 N.Y.2d 272 (1974) ......................................................................................... 15
11
Med. Soc y v. Serio, 100 N.Y.2d 854 (2003) ............................................................................. 5, 17, 22
N.Y. State Health Facilities Ass 'n v. Axelrod, 77 N.Y.2d 340 (1991) ......................................................................................... 17
People v. Blanchard, 288 N.Y. 145 (1942) ............................................................................................... 7
People v. Hobson, 39 N.Y.2d 479 (1976) .......................................................................................... 16
People v. Taylor, 9 N.Y.2d 129 (2007) ........................................................................................... 16
St. Vendor Projectv. City ofNY., 10 Misc. 3d 978 (Sup. Ct. N.Y. County 2005), aff'd, 43 A.D.3d 345
(1st Dep 't 2007) ...................................................................................................... 6
Subcontractors Trade Ass 'n v. Koch, 62 N.Y.2d 422 (1984) ........................................................................................... 18
Under 21, Catholic Home Bureaufor Dependent Children v. NY., 65 N.Y.2d 344 (1985) ............................................................................... 4, 16, 18
STATUTES AND LAWS
N.Y.C. Charter §553(a) .......................................................................................... 14
N.Y.C. Charter§ 556 ................................................................................................ 5
N.Y.C. Charter §556(c)(2) .................................................................................... 6, 7
N.Y.C. Charter§ 556(c)(9) ....................................................................................... 7
N.Y. Mun. Home Rule Law§ 21 ............................................................................. 12
N.Y. Pub. Bldgs. Law§ 3(12} ................................................................................... 17
N.Y. Pub. Health Law §225(5)(a) .......................................................................... 23
N.Y. Pub. Health Law§ 1399-o ............................................................................... 21
... 111
OTHER AUTHORITIES
National Institute of Health: National Heart, Lung, and Blood Institute, What Causes Overweight and Obesity, available at http://www.nhlbi.nih.gov/health/health-topics/topics/obe/causes.html (last visited May 12, 2014) ...................................................................................................... 25
Thomas Frieden, Thomas Farley et al., Public Health in New York City, 2002-2007: Confronting Epidemics of the Modern Era, 37 Int. J. of Epidemiology 966
(2008) ····················································································································· 8
lV
Pursuant to Court of Appeals Rule 500.12(±), Plaintiffs-Petitioners
Respondents ("Plaintiffs") The New York Statewide Coalition of Hispanic
Chambers of Commerce, et. al, respectfully submit this brief in response to the
briefs for amici curiae filed in support of Defendants-Respondents-Petitioners
("Defendants") New York Department ofHealth and Mental Hygiene, et al., by
Wilfredo Lopez and Andrew Goldberg ("Lopez"); National Association of County
and City Health Officials, et al.; ("Health Officials"); Paul A. Diller, et al.
("Diller"); Professors of Administrative Law and State and Local Government Law
("Law Professors"); and the National Alliance for Hispanic Health, et al.
("NAHH").
PRELIMINARY STATEMENT
While the specifics of amici's positions vary, they share a common goal: to
weaken or eliminate Boreali v. Axelrod, 71 N.Y.2d 1 (1987), and expand the power
ofNew York's administrative agencies to decide for themselves what the law
should be. Amici ask this Court to invest "expert agencies" with "power to initiate
policies independent from local elected politicians," Diller Br. at 29, reducing the
legislature's role to attempting to repeal agency-made laws with which they
disagree. That remarkably undemocratic vision is fundamentally incompatible
with this Court's established precedent and the intended roles of executive
1
agencies and legislative bodies under the State Constitution and New York City
Charter.
To be sure, amici initially pay lip service to Boreali, arguing that the Ban
can be upheld under that seminal precedent. But in doing so they urge an
interpretation of that case that would distort it beyond recognition, frequently
echoing the views of the Boreali dissent. If amici's understanding ofthe law were
correct, Boreali would have come out the other way. Amici's attempt to erode
Boreali' s guiding principles is not surprising; as the trial court and the Appellate
Division concluded, the Ban cannot be upheld under any faithful application of that
precedent.
. Because their claim so plainly fails under settled law, amici ultimately ask
this Court to confine Boreali to its facts or overrule it. Some go even further,
asking this Court to jettison all separation-of-powers constraints on executive
action. Advanced solely by amici, these requests to overturn long-established
precedent are not properly before this Court. Nor are they remotely justified.
Despite amici's rhetoric about the dangers of a paralyzed administrative state, New
York courts have routinely and successfully patrolled the "difficult-to-defme line
between administrative rule-making and legislative policy-making" without
creating any constitutional or practical crises. 71 N.Y.2d at 11. Agencies
statewide-including the Board-continue to function effectively. Indeed, amici
2
ultimately admit that New York City's executive branch has plentiful tools to
address health concerns. They concede that a suite of other initiatives undertaken
by executive departments and agencies, all of which fit comfortably within their
delegated authority, have succeeded in reducing obesity rates within the City even
though the Ban has never gone into effect. To the extent amici believe that a law
akin to the Ban nonetheless is a critical part of that program, nothing prevents them
or Defendants from advocating its adoption by the legislative branch-which is
precisely what happened when the legislature enacted a smoking ban in the wake
of Boreali.
Were the Board instead free to enforce this Ban on its own-as amici
contend-it is difficult to conceive of any measure that the Board could not enact
on its own authority. Amici, like Defendants, identify no limiting principle to their
position that the Board can regulate any matter that has any effect on health. In
amici's unrecognizable world, local health agencies could assume control over
countless lifestyle choices New Yorkers make every day, including whether and
how often to watch television, exercise, work late, walk, or drive, straying far from
any traditional or accepted notion of their delegated authority.
It is no answer to protest, as amici do, that this Board action serves an
important public health objective. The very same thing was argued in Boreali.
But "no matter how well-intentioned [the executive's] actions may be," New York
3
City's executive branch "may not unlawfully infringe upon the legislative powers
reserved to the City Council." Under 21, Catholic Home Bureaufor Dependent
Children v. NY., 65 N.Y.2d 344, 356 (1985). The radical consequences of
adopting amici's vision reinforce the importance of that bedrock principle. The
judgment of the Appellate Division should be affirmed.
ARGUMENT
I. AMICI ARE ASKING THIS COURT TO REWRITE BOREAL!, NOT APPLY IT.
Amici insist that all five New York judges to have considered this case have
badly misinterpreted Boreali. But that position is entirely outcome-driven: amici
believe that Boreali should remain good law only if it permits the agency action
challenged in this case. See, e.g., Health Officials Br. at 28-29 ("[I]f Boreali
actually required the result that the Appellate Division reached ... then amici
would be calling on this Court to reconsider the Boreali decision itself."); Law
Professors Br. at 24 ("Should our reading of Boreali be mistaken, however, that
aspect of Boreali should be overruled.").
In keeping with that premise, amici argue more generally that Boreali is
applied correctly only when it results in upholding agency action. Amici Law
Professors, for instance, canvass the universe of cases evaluating agency action
under Boreali' s guidance, and conclude that Boreali has been "flexibly" and
"pragmatically" applied by ev.ery court to affirm agency action, and "misread" by
4
every court to strike down agency action. Law Professors Br. at 1-14. Amici's
hostility to doctrines that constrain agency power is perhaps understandable. They
include local government agencies and public health professionals who may
believe that expert agencies govern more effectively than elected legislatures. But
the Constitution and New York City Charter reject that view. This Court has
rightly and consistently reaffirmed that the separation of powers-and Boreali
specifically-imposes important limits on agency action. See, e.g., Casado v.
Markus, 16 N.Y.3d 329, 337-38 (2011); Med. Soc yv. Serio, 100 N.Y.2d 854, 864
(2003).
To the extent amici make any attempt to apply Boreali's analytic framework
to the facts of this case, their arguments illustrate just how badly that decision
would have to be distorted to make it compatible with the Ban. The Department of
Health's longtime former General Counsel is explicit about this, urging this Court
to adopt the approach taken by the Boreali dissent. Lopez Br. at 29-32.
Collectively, amici's attempts to rewrite the Boreali factors confirm that the Ban
cannot survive a straightforward application of this Court's holding in that case.
A. Writing on a Clean Slate
Amici Law Professors argue that the legislature provided sufficient direction
towards the Ban by authorizing the Board to regulate '"all matters affecting health
in the city of New York."' Law Professors Br. at 16 (quoting N.Y.C. Charter
5
§ 556). But that general language is identical to the authority on which the Public
Health Council ("PHC") relied unsuccessfully in Boreali. See 71 N.Y.2d at 9. 1
Boreali explained that broad delegations of this sort are constitutional because (and
only to the extent) they are construed sufficiently narrowly to exclude agencies
from deciding for themselves broad issues of public policy without guidance from
the legislature.
This case presents an even clearer case of such agency overreach than the
action at issue in Boreali. In that case, the Public Health Council conceded that its
authority was not "unlimited," and in particular, that it extended only to
"protecting persons from harmful effects produced by others." Boreali v. Axelrod,
Appellants' Reply Brief(Oct. 7, 1987), at 5 n.2, ADD05 (Addendum). The dissent
echoed that view, contrasting the ban on public smoking, which addressed harm to
third parties, from more tenuous regulatory attempts to "protect[] [individuals]
from their own choices." 71 N.Y.2d at 17 (Bellacosa, J., dissenting). By insisting
that the Board's authority does extend to protecting New Yorkers from their own
1 Amici Law Professors also argue that the Ban falls within the Board's delegated role to supervise the reporting and control of "conditions hazardous to life and health." N.Y.C. Charter§ 556(c)(2). The Board did not rely on that authority when promulgating the Ban, and it therefore cannot be defended on that ground. See, e.g., St. Vendor Project v. City of NY., 10 Misc. 3d 978, 986 (Sup. Ct. N.Y. County 2005), a.ff'd, 43 A.D.3d 345 (1st Dep't 2007). In any event, not even amici argue that the consumption of a beverage larger than 16 ounces is in itself "hazardous to life and health."
6
choices-even choices that are not, in and of themselves, unhealthy-amici urge
this Court to adopt a broader vision of the scope of a public health agency's
authority than the one this Court rejected in Boreali.
Amici also complain that the Appellate Division too narrowly construed the
Board's authority to supervise "the reporting and control of communicable and
chronic diseases" and "the food and drug supply of the city," City Charter
§§ 556(c)(2) & (9), by holding that these powers extend only to addressing
conditions that are "health hazards per se." Health Officials Br. at 34 (citation
omitted). But the notion that those delegated powers were crafted with such health
hazards in mind is hardly controversial. See Appellees' Br. at 46-53. The City
Council, of course, may go further and direct the Board to address any number of
other public health concerns. The Appellate Division never suggested otherwise.
But if the agency is to be confined to appropriately implementing legislative
mandates rather than creating such mandates itself, the scope of broad directions
like those provided in§§ 556(c)(2) & (9) must be '"measured by tradition."
Grossman v. Baumgartner, 17 N.Y.2d 345, 350-51 (1966) (emphasis added)
(quoting People v. Blanchard, 288 N.Y. 145, 147 (1942)). That tradition has never
7
extended to broadly restricting the consumption of safe, lawful, and
uncontaminated products. 2
Reliance on the traditional scope of agency regulation as a limiting principle
is important in keeping executive action within its intended bounds. If the Board
could extend its general authorization regarding the control of chronic diseases and
regulation of the food supply in the way amici contend-to regulate any private
conduct that, when done to excess, constitutes a risk factor for a risk factor for a
chronic disease3-the Board's enabling legislation would constitute an unbounded
delegation of legislative authority over a nearly unlimited scope of human activity,
incompatible with the separation of powers. 4
2 Former Commissioners Farley and Frieden previously conceded this. See, e.g., Thomas Frieden, Thomas Farley et al., Public Health in New York City, 2002-2007: see also Confronting Epidemics of the Modern Era, 37 Int'l. J. of Epidemiology 966, 970 (2008) (noting Board's traditional regulatory authority over "food establishments," is traditionally limited "to protect[ing] people only from infectious agents and other contaminants"). 3 Even the American Diabetes Association acknowledged as recently as last year that "[d]rinking regular soda will not directly cause diabetes. However, if you drink it frequently, it will add extra calories to your diet. Those extra calories add up over time and cause weight gain, and being overweight puts you at a much higher risk for developing diabetes." https://web.archive.org/web/20130510171103/http://www.diabetes.org/livingwith-diabetes/treatment -and-care/ ask -the-expert/ ask -the-dietitian/ archives/ doesdrinking-too-much-pop-or.html. That explanation was deleted from its website during the pendency of this litigation. 4 Amici also complain that the Appellate Division improperly required the Board to take an "ali-or-nothing approach" under which its only option in addressing
8
Amici Health Officials insist that the Board acted with sufficient direction
here. They observe that the Ban is just one initiative among many taken by the
Mayor's office to address obesity in New York City, pointing, for example, to
actions taken by New York City's executive branch to promote exercise in City
parks and reduce soda consumption on City property and in public schools. But
even amici acknowledge that this Court's concern was with "whether an agency
has acted without legislative guidance in developing its own view of public
policy." Health Officials Br. at 33 (emphasis added). An executive agency may
not amass power beyond its own statutory mandate by bootstrapping the efforts of
other executive agencies or officials who are using legitimate, delegated authority
to tackle a similar goal. The Mayor's ability to dictate the food and beverage
options served at City facilities or encourage exercise at City parks does not
empower the Board to restrict the sale of food and beverages at private food
service establishments or require that New Yorkers run or lift weights.
purported health risks is an outright ban. Health Officials Br. at 31. That again misreads the Appellate Division's opinion. Of course the Board can take an incremental approach when enacting regulations within its delegated authority, at least so long as that approach is not arbitrary. What the Board may not do is exceed its executive authority by creating and delimiting policies and exceptions based on its own balancing of health, political, business, and social values without legislative direction or guidance.
9
B. Acting Where The Legislature Failed to Reach Agreement
Echoing the dissent in Boreali, amici ask this Court to disregard the City
Council's persistent unwillingness to target sugar-sweetened beverages, arguing
that later legislative inaction is an inappropriate tool for evaluating the intended
scope of an agency's statutory authority. Compare Law Professors Br. at 29;
Diller Br. at 17 with Boreali, 71 N.Y.2d at 18-19 (Bellacosa, J., dissenting). That
argument misapprehends the point of this factor. In this context, courts are not
using "the Legislature's failure to act as some indirect proof of its actual
intentions," but instead "as evidence that the Legislature has so far been unable to
reach agreement on the goals and methods that should govern in resolving a
society-wide health problem." Boreali, 71 N.Y.2d at 13. Agency regulation in the
face of a legislature's repeated refusal to act raises a suspicion that the agency is
overstepping its authority, which is exactly what happened here.5
Amici also argue that the city and state legislatures' refusal to enact
measures targeting sugar-sweetened beverages is irrelevant because none of the
5 See Interview with Mayor Michael Bloomberg, CBS This Morning (CBS television broadcast Mar. 13, 2013), available at https://web.archive.org/web/20 1305101711 03/http://www.diabetes.org/livingwith-diabetes/treatment -and-care/ ask-the-expert/ ask -the-dietitian/ archives/ doesdrinking-too-much-pop-or.html ("The federal government, we asked them to do something[,] [t]hey did nothing. We asked the President to ban the use of food stamps ... [t]hey did nothing. We asked the State, they [did] nothing. The city tries to do something.").
10
proposed measures used the same mechanism to limit consumption. Health
Officials Br. at 36; Law Professors Br. at 27-29. But this again misreads Boreali.
The PHC' s rule there also was not identical to the failed legislative efforts to target
smoking in public places. See, e.g., Boreali, 71 N.Y. at 6-7 (describing
unsuccessful legislative efforts). Consistent with its concerns about broad
executive policy-making without appropriate legislative guidance, this Court
looked to whether the "agency acted in an area in which the Legislature had
repeatedly tried-and failed-to reach agreement." Id. at 13 (emphasis added).
Here, the Board unquestionably acted unilaterally in the same area in which
considering bills proposing additional taxes, restrictions on the use of food stamps,
and the like-city and state legislatures failed to reach agreement. As amici City
Council Members and Public Advocate observe, "at least for now, the Council
having weighed the competing health, social, and economic concerns-does not
agree that laws specifically targeting sugar-sweetened beverages are appropriate,"
despite "intense deliberation over many different possible approaches for doing
so." City Council Br. at 30, 32.
Finally, some amici argue that the absence of action by the City Council to
overturn the Ban indicates that the Council believes the Ban was within the
Board's valid scope of authority. That argument fails on every level. First, a
majority of sitting Councilmembers filed an amicus brief in this case supporting
11
Plaintiffs' challenge to the Ban. Second, the Council as a body has had no need to
step in: because the lower courts struck down the Ban before it took effect, there
was nothing for the Council to overturn. Third, it is profoundly anti-democratic to
suggest that appointed agency officials should be free to make wide-ranging laws
impacting millions, based on their "expert" assessment of the public good, so long
as the People's representatives in the legislature cannot muster a veto-proof
supermajority to rescind the agency's choices. See N.Y. Mun. Home Rule
Law§ 21 (requiring a two-thirds vote to override mayoral veto).6
C. Impermissibly Balancing Health, Economic, and Political Concerns
Amici concede (indeed recount approvingly) that, just like the PHC in
Boreali, the Board weighed for itself economic, social, and even political
considerations in shaping its Ban. See Law Professors Br. at 19 ("The BOH's
Consideration Of Social [and] Economic ... Factors Was Appropriate"); id. at 24
(Ban's exemptions reflect Defendants' belief that there was a "greater likelihood of
consumer acceptance of a more measured restriction"); Health Officials Br. at 31
("Board is not only justified in considering 'non-health factors,' it is required to
consider them."); Diller Br. at 15 (criticizing Boreali for suggesting that "New
6 It is highly doubtful that courts' consideration of legislatures' failure to reach agreement would truly incentivize "opponents of agency regulation to introduce bills that they know will fail," as amici suggest. Diller Br. at 18. In any event, no one (not even amici themselves) says that happened here.
12
York agencies must sequester themselves and willfully ignore any political, social,
economic, or even jurisdictional consequences of the rules they make"). In asking
this Court to approve the Board's action anyway, amici are again urging this Court
to rewrite Boreali, not apply it.
Amici protest that agencies must be permitted to weigh political, social,
economic, and other consequences in order to make effective decisions. That same
argument was advanced by the lone dissent and rejected by the majority inBoreali.
See 71 N.Y.2d at 19 (criticizing majority for suggesting PHC should have
regulated only based on "public health concerns," not "ancillary social, economic
or even policy factors"). Three decades of experience since then confirms that the
administrative state has had no problem functioning effectively while at the same
time maintaining fidelity to Boreali's teaching that "[s]triking the proper balance"
among diverse policy concerns in the first instance is "a uniquely legislative
function." !d. at 12.
Amici's argument also vastly overstates the constraints that Boreali imposes
on agency authority. This Court recognized that many regulatory decisions
permissibly "involve weighing economic and social concerns against the specific
values that the regulatory agency is mandated to promote"; its concern was that the
PHC "ha[d] not been authorized to structure its decision making in a 'cost-benefit'
model" !d. (emphasis added). So too here. This would be a different case had the
13
City Council given a mandate to the Board to enact regulations addressing the
health consequences of basic lifestyle decisions-including individuals' choices
about food, sleep, and exercise-and in doing so directed the Board to consider the
social and economic effects of its regulations. But the Council has not done that,
and the Board's insistence on engaging in its own self-directed legislative policy
making exceeded its delegated authority.
D. Not Exercising Specialized Expertise
Amici Health Officials acknowledge that "[t]he fourth Boreali factor serves
as a way of determining whether an agency is operating outside the limits of its
own expertise." Health Officials Br. at 37. Amici insist, however, that "boards of
health have developed a more sophisticated understanding of how health-related
decisions are made and the myriad environmental, cultural, social, and ecological
factors that influence such decisions." !d. at 21. In effect, amici suggest that.the
Board should be viewed as expert in every discipline that might conceivably touch
on public health, and thus all of its actions are, by defmition, within its expertise.
But the Board's members are, by law, experienced in medicine, public health
administration, or health-related sciences, N.Y.C. Charter§ 553(a), not business
and marketing. The conclusions they drew when seeking to strike a "balance
between health impact and feasibility"-about retail competition, pricing, and
revenue-were far outside their expertise. See, e.g., R1461.
14
Moreover, to the extent the Ban's formulation took into account
considerations of medicine and public health, the Board was not involved. The
Board adopted a comprehensive code prepared and pre-packaged by the Mayor's
office without a single substantive change, even though obvious flaws were
exposed during the rulemaking process. See Appellees' Br. at 62-63. The Board's
insistence on enacting the Mayor's proposal lock, stock, and barrel belies amici's
insistence that the Ban was the product of the Board's expertise.
II. AMICI'S CALL TO OVERRULE BOREAL/ SHOULD BE REJECTED.
Several amici ask this Court to overrule Boreali altogether. That position is
not properly presented. Defendants themselves have not argued that Boreali
should be overruled, and it is well-established that "an amicus has no status to
present new issues" in a case. Lezette v Bd. ofEduc., Hudson City Sch. Dist., 35
N.Y.2d 272, 282 (1974).
Even if amici's argument were properly presented, it is ill-advised. Boreali
is not a "curious precedent" or lone anomaly within New York jurisprudence that
can be considered and discarded in isolation. Diller Br. at 5. As amici Washington
Legal Foundation and Allied Educational Foundation explain in detail, Boreali
drew upon decades of precedent recognizing the crucial role that the separation of
powers, and its attendant limitations on executive action, play in New York's
system of government. See WLF Br. at 4-9. This Court has repeatedly rejected the
15
suggestion that the separation of powers is a "vestigial relic." Under 21, 65
N.Y.2d at 356 (internal quotation marks and citation omitted). Amici thus fall
woefully short of rebutting the "strong presumption" that Boreali remains good
law. People v. Taylor, 9 N.Y.3d 129, 149 (2007). Because Boreali was the
product of"reasoned and painstaking analysis," not "a conclusory assertion of
result," People v. Hobson, 39 N.Y.2d 479, 490 (1976), stare decisis applies with
great force.
Amici nonetheless ask this Court to overrule or modify Boreali because
(they claim) applying it here will impose a "straightjacket on regulation" that will
hamstring the ability of the Board, and boards of health across the state, to
implement effective solutions to "profound public health threats." Law Professors
Br. at 2-15; see also LopezBr. at 22-28; Health Officials Br. at 27-37; Diller Br. at
13-20. Amici also insist that Boreali's treatment of the nondelegation doctrine is
seriously out of step with federal practice and precedent. Neither argument has
merit.
Amici reveal no practical or constitutional crisis necessitating this Court's
departure from one of its "seminal" separation-of-powers precedents. Law
Professors Br. at 1. New York courts have applied Boreali effectively for nearly
30 years, carefully evaluating whether the "difficult-to-define line between
administrative rule-making and legislative policy-making has been transgressed"
16
on a case-by-case basis. 71 N.Y.2d at 1. And they generally find that executive
agencies regulate within the bounds of their delegated authority-just as every
other branch does. See, e.g., N.Y. State Health Facilities Ass 'n v. Axelrod, 77
N.Y.2d 340, 348 (1991) (upholding PHC regulations requiring new applicants
seeking nursing home approval to admit certain number of Medicaid patients in
light of "unmistakable legislative direction that the PHC should consider the
adequacy of a facility's responsiveness to the nursing home care needs of Medicaid
patients in approving a facility"); Med. Soc y v. Serio, 100 N.Y. 2d 854, 865
(2003) (upholding Superintendent of Insurance regulations setting time limits for
no-fault claims in light of, inter a}ia, 25-year record of Superintendent filling in
such "interstices" in statutory scheme).
At the same time, New York courts have consistently invalidated those
agency actions that exceed the agency's delegated role. See, e.g., Ellicott Grp.,
LLCv. StateofN.Y. Exec. Dep'tOff. ofGen. Servs., 85 A.D.3d48, 53 (4thDep't
2011) (striking down agency's attempt to insert a "prevailing wage clause" in state
leases with private companies on the basis of its delegated authority to "lease
buildings ... for state agencies 'upon such terms and conditions as [it] deems most
advantageous to the state"') (quoting N.Y. Pub. Bldgs. Law§ 3(12)); Health Ins.
Ass 'n v. Corcoran, 154 A.D.2d 61, 68-69 (3d Dep't 1990) (striking down
regulation prohibiting use ofHIV-test results to set insurance rates, where
17
purported delegated authority to bar "discrimination" historically did not extend to
bar differential treatment premised on actuarial risk). Those cases do not
"misread" this Court's separation-of-powers jurisprudence; they are faithful to it.
See Under 21, 65 N.Y.2d at 356 (invalidating on separation-of-powers grounds
New York City Mayor's attempt to insert clause in City contracts prohibiting
contractors from discriminating on the basis of sexual orientation); Subcontractors
Trade Ass 'n v. Koch, 62 N.Y.2d 422, 429-30 (1984) (holding, in the absence of
specific legislative authority, that Mayor's general powers to enter into contracts
and issue directives did not authorize him to "unilaterally initiate" a "remedial
plan" to promote business in economically depressed areas).
Amici warn that Boreali' s continued application to this case "Would Make It
All But Impossible For The Board To Operate," Health Officials Br. at 28, and
"Will Severely Undercut The Board's Ability to Act Promptly and Effectively to
Public Health Challenges," Lopez. Br. at 22. Those exact same arguments were
raised in Boreali by the PHC and its amici, and were rejected by this Court. See,
e.g., Boreali v. Axelrod, Appellants' Opening Brief (Aug. 27, 1987), at 16, ADD09
(Boreali rule would establish a "dangerous and unworkable precedent for striking
down agency rules"); Boreali v. Axelrod, Action on Smoking and Health Amicus
Brief (Aug. 5, 1987), at 8, ADD16 ("[A] strict application of the doctrine of
separation of powers would denude many agencies, such as the New York Public
18
Health Council, of their utility, and many exercises of government power would
become impossible.").
History has proved this Court right. Although Amici Lopez suggests that
the State Sanitary Code has "atrophied" in the wake of Boreali, revealing "no
significant new initiatives," Lopez Br. at 29, the Public Health Council has adopted
dozens of important regulations since 20 1 0 alone to prevent transmission of
influenza, improve newborn health, update school immunization requirements,
establish water quality standards and the like.7 The absence ofthe Public Health
Council and the State Solicitor General from the ranks of Defendants' amici is
telling in this respect. Boreali has not prevented the Public Health Council from
doing its important work.
Nor has Boreali unduly restricted the Board. New York courts have applied
Boreali to the Board since 1989. See Am. Kennel Club v. City of N.Y., Index
13584/89 (Sup. Ct. N.Y. County Sept. 19, 1989), R629-51 (applyingBorealito
invalidate Board regulation banning pit bulls in New York City). During that time,
by amici's own account, Defendants promulgated myriad rules, see Lopez Br. at 4,
the vast majority of which were unchallenged and are indisputably within the
Board's delegated authority. In no way has Boreali prevented the Board from
fulfilling its responsibilities. The Appellate Division's application of Boreali to
7 See http:/ /www.health.ny .gov /regulations/recently_ adopted/.
19
strike the singular and extraordinary rule at issue here maintained, and did not
alter, that status quo.8
Amici's insistence that the Appellate Division's ruling leaves the Board, or
New York City, powerless to confront emerging health issues generally (and
obesity in particular) is also contradicted by amici's own evidence. Amici Health
Officials admit that City executive officials have taken a wide range of steps to
promote physical activity in City parks, mandate the provision of healthy foods in
City schools, and educate urban designers to construct healthy urban spaces. See
Health Officials Br. at 7-13. Amici proclaim that through these measures the City
has "met what may be the greatest public health challenge of all time," observing
that "obesity rates in the City [have] started to abate." Id. at 4. That the Board
cannot enact the one aspect of the Mayor's program that Plaintiffs challenge here
hardly leaves New York City or the Board powerless to act in other meaningful
ways. Indeed, amici trumpet that New York City's programs are "moving [the
City] towards a healthier future for its children" without this Ban ever having taken
effect. I d. And the Mayor can of course continue to propose and support
legislation addressing sugar-sweetened drinks in the legislature if he thinks it
8 One amicus argues that the Boreali framework should not be applied to local agencies like the Department of Health at all. See Diller Br. at 23-35. That argument is meritless for reasons previously explained. See generally Appellees' Br. at 20-23.
20
important. The separation of powers, as correctly applied by the lower courts here,
is perfectly compatible with effective city government.
Amici protest that the legislative process is slow and uncertain, and that
legislators lack the expertise of public health officials. And they recount the
serious toll and costs of obesity. But the fundamental constraints imposed by the
separation of powers cannot be ignored or discarded because amici believe it is
inconvenient to work with the legislature to address their concerns. The public
smoking ban at issue in Boreali unquestionably implicated important health
concerns regarding the exposure of third-party customers and employees to toxic
and unwanted second-hand smoke. But even so this Court did not hesitate to
require that such policymaking originate in the legislature. Just as that case was
not about the health threat posed by second-hand smoke, this case is not about the
health threat posed by obesity. If amici feel strongly about the merits of this rule,
or that the Board should be given new authority to enact it, they should work to
advocate for their view before the legislative branch. That is exactly what
happened in the wake of Boreali. See N.Y. Public Health Law§ 1399-o (enacting
smoking restrictions).
Finally, Amici Law Professors and Diller complain that Boreali represents a
departure from federal nondelegation practice. Diller Br. at 13; Law Professors Br.
21
at 3. They vastly overstate the differences.9 Boreali maqe clear that it was not
invalidating the PHC's statutory delegation of power on nondelegation grounds,
but rather striking down the specific rule at issue because it could not reasonably
be construed as within the relevant delegation of power in light of the separation of
powers. See 71 N.Y.2d at 11-14. As amici acknowledge, federal courts have
found regulations to be outside an agency's claimed authority for identical reasons.
See, e.g., Law Professors Br. at 31 (" [federal] courts occasionally constru[ e]
statutes narrowly to address delegation concerns"). When agencies interpret their
authority to make "a monumental policy choice," the D.C. Circuit has cautioned,
"separation-of-powers considerations mean 'there may be reason to hesitate before
concluding that Congress has intended such an implicit delegation."' AKM LLC v.
Sec y of Labor, 675 F.3d 752, 765 (D.C. Cir. 2012) (quoting FDA v. Brown &
9 The Law Professors also err in suggesting that this Court has retreated from Boreali's teaching. They rely heavily on Bourquin v. Cuomo, 85 N.Y.2d 781 (1995), but that case only illustrates the differences between permissible and impermissible executive action. In concert with the policy of the State Legislature, the executive branch had created a non-profit corporation to represent residential customers before state regulators, after finding that individual participation was impracticable. This Court distinguished that procedural tool created by the executive branch from "detailed and comprehensive Executive Orders and administrative regulations that this Court has struck down in the past" because it amounted to an administrative mechanism that did "not formulate a specific policy" and had "no substantive content." Id. at 787. Nothing in the case signaled a retreat from Boreali, and this Court has since cited Boreali approvingly numerous times, including quite recently. See, e.g., Casado, 16 N.Y.3d at 337-38; Med. Socy, 100 N.Y.2d at 864.
22
Williamson Tobacco Corp., 529 U.S. 120, 159 (2000)); see also id. ("'withholding
deference for fear of 'unrestrained' agency power in an area which is 'the subject
of an earnest and profound debate' and which requires policy judgments best
reserved to legislatures"' (quoting Gonzales v. Oregon, 546 U.S. 243, 262, 267-68
(2006)). Boreali enforces similar principles. Compare Boreali, 71 N.Y.2d at 14
("while Public Health Law§ 225(5)(a) is a valid delegation of regulatory authority,
it cannot be construed to encompass the policy-making activity at issue here
without running afoul of the constitutional separation of powers"), with Am.
Library Ass 'n v. FCC, 406 F.3d 689, 703 (D.C. Cir. 2005) (refusing to "construe
[statutory delegation] in a manner that imposes no meaningful limits on the scope
of the FCC's general jurisdictional grant").
Even if New York courts enforced the separation of powers more vigorously
than federal courts, however, that would be cause for comfort, not concern. In
amici's world, courts would forego any "direct separation of powers assessment"
and ask only whether the agency engaged in "reasoned decision-making," Law
Professors Br. at 30, and "expert agencies" would wield "power to initiate policies
independent from local elected politicians," Diller Br. at 29. The People, through
their elected representatives, would be constrained to attempting affirmative
legislative overrides (if, that is, they have the super-majority votes needed to
overcome an executive veto) or pursuing other even more difficult-to-accomplish
23
steps, like "lobbying the New York State Legislature to preempt the rule." Diller
Br. at 5. In such a world, fundamental laws would be passed by unelected boards
over whom New Yorkers exert little direct control. That vision is profoundly at
odds with the principles of democratic self-governance that ground this Court's
separation-of-powers jurisprudence. This Court's safeguarding of those principles
does not warrant an apology.
III. AMICI'S POSITION WOULD INVEST LOCAL BOARDS OF HEALTH WITH BREATHTAKINGLY EXPANSIVE POWER.
Through multiple rounds of briefing in this case, Defendants have never
been able to identify any limiting principle constraining their conception of the
Board's powers to address health-related issues. Amici's arguments-whether
directed to overruling Boreali or construing the Board's delegated authority under
Boreali-reinforce that concern.
Amici insist that the Ban is "plainly" within the Board's authority because it
"targets ... a major contributor to the city's obesity epidemic." Law Professors
Br. at 16; see also NAHH Br. at 24 (Ban defensible because it would be "a useful
way to combat obesity and associated chronic disease"); Lopez Br. at 8-9 (Board
has "plenary authority to address all public health concerns"). Because obesity is a
product of excessive energy intake as compared to energy expenditure, however,
the list of factors that contribute to obesity is endless. Among the causes
enumerated by the National Institute of Health, for instance, are: "more than 2
24
hours a day of regular TV viewing time," "lack of sleep," "relying on cars instead
of walking," long "[w]ork schedules," too much time in front of computers doing
"schoolwork," being "bored, angry, or stressed," and a "[l]ack of ... affordable
gyms."10 If the Board]1as authority to enact the Ban, there is no reason it cannot
similarly set minimum physical activity requirements, set caps on television
watching and car use, impose a maximum work-week, limit pizza consumption,
and unilaterally make countless other lifestyle decisions for New Yorkers. Nor is
any of this far-fetched. Health Officials admiringly note that New York City
imposed requirements on Group Child Care Centers under contract with the City,
including minimum daily requirements for physical activity and restrictions on
television viewing time. Health Officials Br. at 12. If amici's construction of the
Board's own authority were correct, Defendants could extend those day care
regulations to all adult New Yorkers as well. 11
10 National Institute of Health: National Heart, Lung, and Blood Institute, What Causes Overweight and Obesity, available at http://www .nhlbi.nih.gov/health/health-topics/topics/ obe/ causes.html (last visited May 12, 2014). 11 Nor would that be the limit. Amici's position would allow the Board to regulate any condition affecting or affected by health-something that encompasses nearly everything. See, e.g., R1486 (Boardmember Dr. Kiltzman: "[T]he profit margin for sugar sweetened beverages is 90 percent and for produce it is 1 0 percent. What are we going to do about that, because as my colleague, Dr. Caro, said, there is an economic issue here. So we need to address that as well, and economics are part of
25
This vision of rule by expert agencies bears little resemblance to the form of
governance that New Yorkers chose for themselves in the City Charter. Amici
present no justification for discarding this Court's jurisprudence and New Yorkers'
choice to embrace the separation of powers in their form of government, all to save
one misguided rule.
CONCLUSION
For the foregoing reasons, the judgment of the Appellate Division should be
affirmed.
Dated: May 22,2014 New York, New York
LATHAM & WATKINS LLP 885 Third Avenue New York, New York 10022 Telephone: (212) 906-1200 Facsimile: (212) 751-4864
Richard P. Bress (admitted pro hac vice) William K. Rawson (admitted pro hac vice) Michael E. Bern (admitted pro hac vice)
public health. Public health addresses the conditions in which people can be healthy, and that includes the economic conditions as well.").
26
Kala Sherman-Presser (admitted pro hac vice)
Andrew D. Prins (admitted pro hac vice)
LATHAM & WATKINS LLP 555 Eleventh Street, NW, Suite 1000 Washington, DC 20004 Telephone: (202) 637-2200 Facsimile: (202) 637-2201
Counsel for Plaintiff-Petitioner-Respondent The American Beverage Association
(Additional counsel listed on following page)
27
James Inn Salvatore A. Romanello Gregory Silbert WElL, GOTSHAL & MANGES LLP 7 67 Fifth Avenue New York, New York 10153 (212) 310-8000
Counsel for Plaintiff-PetitionerRespondent The National Restaurant Association
Steven F. Molo BenQuarmby MOLOLAMKEN LLP 540 Madison Avenue New York, NY 10022 (212) 607-8170
Counsel for Plaintiffs-PetitionersRespondents The New York Statewide Coalition of Hispanic Chambers of Commerce and The New York KoreanAmerican Grocers Association
Evan H. Krinick Barry I. Levy Brian L. Bank RIVKIN RADLER, LLP 926 RXR Plaza Uniondale, New York 11556-0926 (516) 357-3483
Counsel for Plaintiff-Petitioner-Respondent Soft Drink and Brewery Workers Union, IfJcal 812, International Brotherhood of Teamsters
Matthew N. Greller MATTHEW N. GRELLER, ESQ., LLC 7 5 Clinton A venue Millburn, NJ 07041 (917) 345-0005
Counsel for Plaintiff-Petitioner-Respondent The National Association of Theatre Owners of New York State
28
James W. Quinn Salvatore A. Romanello Gregory Silbert WElL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York 10153 (212) 310-8000
Counsel for Plaintiff-PetitionerRespondent The National Restaurant Association
Steven F. Molo Ben Quarmby MOLOLAMKEN LLP 540 Madison Avenue New York, NY 10022 (212) 607-8170
Counsel for Plaintiffs-PetitionersRespondents The New York Statewide Coalition of Hispanic Chambers of Commerce and The New York KoreanAmerican Grocers Association
Evan H. Krinick Barry I. Levy Brian L. Bank RIVKIN RADLER, LLP 926 RXR Plaza Uniondale, New York 11556-0926 (516) 357-3483
Counsel for Plaintiff-Petitioner-Respondent Soft Drink and Brewery Workers Union, Local 812, International Brotherhood ofTeamsters
Matthew N. Greller MATTHEW N. GRELLER, ESQ., LLC 7 5 Clinton A venue Millburn, NJ 07041 (917) 345-0005
Counsel for Plaintiff-Petitioner-Respondent The National Association of Theatre Owners ofNew York State
29
James W. Quinn Salvatore A. Romanello Gregory Silbert WElL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York 10153 (212) 310-8000
Counsel for Plaintiff-PetitionerRespondent The National Restaurant Association -
Steven F. Molo BenQuarmby MOLOLAMKEN LLP . 540 Madison Avenue New York, NY 10022 (212) 607-8170
Counsel for Plaintiffs-PetitionersRespondents The New York Statewide Coalition of Hispanic Chambers of Commerce and The New York KoreanAmerican Grocers Association
Evan H. Krinick Barry I. Levy Brian L. Bank RIVKIN RADLER, LLP 926 RXR Plaza Uniondale, New York 11556-0926 (516) 357-3483
Counsel for Plaintiff-Petitioner-Respondent · Soft Drink and Brewery Workers Union, Local 812, International Brotherhood ofTeamsters
Matthew N. Greller MATTHEW N. C!RELLER, ESQ., LLC 75 Clinton Avenue Millburn, NJ 07041 (917) 345-0005
Counsel for Plaintiff-Petitioner-Respondent The National Association ofTheatr~ Owners ofNew York State
30
James W. Quinn Salvatore A. Romanello Gregory Silbert WElL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York 10153 (212) 310-8000
Counsel for Plaintiff-PetitionerRespondent The National Restaurant Association
Steven F. Molo BenQuarmby MOLOLAMKEN LLP 540 Madison Avenue New York, NY 10022 (212) 607-8170
Counsel for Plaintiffs-PetitionersRespondents The New York Statewide Coalition of Hispanic Chambers of Commerce and The New York KoreanAmerican Grocers Association
Evan H. Krinick Barry I. Levy Brian L. Bank RIVKIN RADLER, LLP 926 RXR Plaza Uniondale, New York 11556-0926 (516) 357-3483
Counsel for Plaintiff-Petitioner-Respondent Soft Drink and Brewery Workers Union, Local 812, International Brotherhood ofTeamsters
Matthew N. Greller MATTHEW N. GRELLER, ESQ., LLC 75 Clinton Avenue Millburn, NJ 07041 (917) 345-0005
Counsel for Plaintiff-Petitioner-Respondent The National Association of Theatre Owners ofNew York State
31
ADDENDUM
ADDENDUM TABLE OF CONTENTS
Excerpts from Appellants’ Reply Brief in Boreali v. Axelrod (N.Y. Court of Appeals Oct. 7, 1987) .......................................................................... ADD01
Excerpts from Appellants’ Opening Brief in Boreali v. Axelrod (N.Y. Court of Appeals Aug. 27, 1987) ....................................................................... ADD08
Excerpts from Brief of Action on Smoking and Health (ASH) as Amicus Curiae in Support of Defendants-Appellants in Boreali v. Axelrod (N.Y. Court of Appeals Aug. 25, 1987) ....................................................................... ADD11
ADD01
STATE OF NEW YORK
COURT 01' APPEALS
I'RBJ) BOUALI I BOREAL I I s RES'rAURANl', l'NC. I
c:l/bta- BOHALl IS: UNITED RESTAURANT I BOTZL, TAVERN- ASSOCIATION 0!' NEW YO~ STATE, INC~; DENNIS PAPERMAN as President of the BRIGHTON BEAd! ~ 01' TRADE1· - ~OOI(LYN CHAMBER ., 01' COMMDC;!:, INC. i ROBERT WER.l'Z and.. • TJ!OMAS BAR'.rOSIJ:WICZ,
Plaintiffs-Respondents,
-aqainst-
DAVID M. AJtELROD, as Collllllissioner of the New York State Depar1:11lent of .~ealth, 'and Td NEW YOIUC STATE PUBLIC BEALm COUNCIL,
Defendan~a-Appellanta.
APPBLLAN'l'S I REfLY BRIE!'
POINT I
T!fE PU8LIC BEAL'l'H CO~IL, ·BY :PROMULGATING PART 25 OF 'i'BB QNITARY COD!;, Dm. NO'.r ACT AS A "ROVI!ro COMMISSION" WITH I~S ONLY GUIDANCE AND LIMITATION BEING 'l'JIE "GENERAL WELFARE".
Plaintiffs attempt (Br, pp 26-28) to paint the Public
Health Council as a "roVinq.commisaion", unconstrained by any
meaninqful: leqislative stanc:lard or limitation of field. oth.er
than the "general welfare". As we demonstrate in our main brief
(pp 16•38), plaintiffs' characterization is simply wrong •. The
PUblic S.alth CoUncil acted to reduce the public's exposure to
·.
ADD02
2.
anvir~~ental tobacco smoke.pursuant to its.qrant of authority
under sections 225(4) and 225(5)(a) of the Public Health Law,
whiCh only permit the Public Health COuncil to adopt regulations
designed to preserve ana protect the public health. In so .. . doinq, the_Council expressly conclu~ed that exposure to
environmental tobacco IIIDOke 0.is a Si9Jlificant health hazard
which does adversely affect the public health" (112). In ...
Chiropractic Aasn·. .2{ New ~ y Hill.eboe, 12 NY2d 109 ( 1962),
this Court •quareiy upheld the Public ~aal~ Council'• general
grant of authority as-being sufficiently limited and gUided by
leqislative stand&rcla and approved the regulation there involved
after concluding that the negative health effects foUnd to exist
by the Counc;l fully .upported the exercise of that authority.
Thus, whether Part 25 is a valid r•9Ulation d~pen.da very
much on W~ether it de&lS·W~th a bona fide public health concern.
Pl•intiffs, like the ~ajority at ttie Appellata Division, are
wrong when they argue (Br, p 2) that the health effects of
environmental tobacco amok• are not at isaue. If environmental
tobacco smoke creates significant public health impacts, a• the
court below acknowl&dqed· it ~id, then the_requlation of
-~ '
. ;
;. ;. r. •
I, ,. ,.
I i l_'
ADD03 .. ~sz~,~s.,a.~-~<.•: ~--.-.---~ .. ~-~4~-~~.:·~-~.a•ea .. .. ·:~
3.
enviro~ental tobacco smoke lies within the purview of the
PUblic Health Council to enact and amend the Sanitary Code. 1
Disreqardinq Hilleboe, plaintiffs arque (Br, pp 16-23) that
the "(p) recedente of this court make clear that the broader the
deleqation, the more specific the leqislatively prescribed
standards and limits must be", but cite no judicial precedent •
whatsoever, State or Federal, which articulates such a rule.· To
the contrary, the law of this State. was clearly enUnciated in
Matter of City .of Utica ~ Water Pollution Control ~, 5 NY2d
164 (1959), and appli~d in Billeboe: where. leqislativ~ powei is .
deleqated, standards or quides,muet be prescribed "in only so
detailec:J a faishion as is reasonal)ly practicable in light of· the
complexitie• of the particular ·area to be regulated". l2.NY2d
at 120. This ·COurt in Billeboe concluded that, qiven the
diverse, chanqeable,, and ta_chnical nature of the field,. the
deleqation of authority now contained in sections ~25(4) and
22S(S}(a) is as detailed as is reasonably practicable.
l Plaintiffs' claim· (Br, p 2) that the •ti~lation that there were no material issues of fact (90) sqows that "plaintiff never conceded that the PBC' s view of ETS is correct" is hard.to underst~d. In'fact, plaintiffs' complaint did not challen9e those findinqa of the Council. Accordinqly~ plaintiffs necessarily conceded, for purposes of this lawsuit, the· validity of the Council's well-supported fin~nqs and conclu•ion that environmental tobacco smoke poses a significant health hazard to nonsmokers.
.-
• I
ADD04 '-----------------···-
4.
Billeboe and this Court's other cases approvinq broad
delegations of authority all recoqnize that the exercise of
broad delegations such as that involved here, or in protecting
the "public interest" or in determininq "the pUblic convenience
and necessity", must be evaluated in the context in which the·
challenqed regulation is adopted. Accordinqly, the Public
Health Council's authority to adopt the present regulations in
the Sanitary Code for "the preservation and improvement of
public heal.th" are properly judged by the context in which it
has long acted. As we discuss in our main brief (Br, pp 19•20),
much of the Sanitary Code is aimed at reducing involuntary
exposure of the generai public to harmful agents, such as
bacteria, other toxic organic and inorganic compounds, and
radiation emitted into air or water, or tranafer~ed through
other media by one individual to anbther. Environmental tobacco
smoke is precisely the type of health concern traditionally
regulated under the Sanitary Code. There was no need for the . Legislature to have referred to environmental tobacco smoke
specifically to enable the Council to deal with hazards caused
by such smoke because the very purpose of delegating a broad
.·
AD DOS
5.
qrant of authority· was to qive the Council the ability to . 2
evaluate newly-emerging and ~ewly-understood health concerns.
Plaintiff• attempt (Br, p 31) ~o distinguish Billeboe by
arguing f~rat tbat Billaboe did not decide the issue of whether
the Public Health Council's qeneral qrant of authority ·
constitutes a valid delegation, citinq the Appellate Division's
dec~aion. They ~eqlect the three pages of this ·court's decision
atartinq with the sentence: "It r~~ns to consider whether
under the Sta.te Constitution. the Leqislature coulci delegate the
power to the Public H•alth Council to adopt this requl~tion as
part of the State Sanitary Code. n 12 NY2cl-at 118. · Plaintiffs
cannot rewrite the decision in B1lleboa to say otherwiseJ thi• . .
9ourt held the Public Health Council's general grant to be a
valid delegation of interstitial leqialative authority. . ll
.Plaintiffs also suqgest (Br, pp 31-32) that the decision
upholdinq the regulations in Hilleboe is based on the specific
delegation of authority to the Department, Public Health Law
i •• 20l(l)(s), 201(3), or on the apecific grant of authority to I.
2
-:··
~laintiffa, at pagee 26-~7 of their brief, suggest a number of regulations that the Council might allegedly adopt to prove that the delegation under Public Health Law § 225(5)(a) is unlimited. While the delegation is broad, the Council has essentially viewed its authority as · protectinq persons from h&rmful effects produced by others. Moreover, we note that the regulation of some matters that might oth•rwise come within the Council's purview may be preempted by comprehensive regulation entrusted to other agencies.
ADD06
6.
the Public Health ~ouncil in s~ction 225(5)(p) added in 1960
subsequent to the promulgation of its regulations reqardin~
ionizjl.nq radiation. One searches in vain, however~ for any . reference to these provisions in the Billeboe decision. Its
ltoldinq dicl not rest on any specific qrant of authority.
Additiona4ly, plaintiffs attempt to characterize the ~ant
of authority as app~yinq only to the Public Health Council's
authority to regulate the health profeal!ion. ·.Clearly this was
not the case, as the Court expressly recoqDized that many of ~e
subjects addressed in-the Sanitary Code enumerated by the court, ·
only two of which involved qualifications of health
professionals, were enacted pursuant to the general qrant·of
authority. 12 NY2d at 119-120. 3
Plainti~fs' reliance (Br, p 30) on the. recent amendment-to
Public Health Law·§ 225(5)(u), which directs the Public ~ealth
Council to require certain ~ypea and frequencies of testinq for
3 Industrial Union Dept., AFL•CIO y American Petroleum Insti,tute, 448 US 607 (1980), cited by plaintiffs at paqe ·16, does not support plaintiffs' position. In that case OSSA hacl imposed more restrictive standards on benzene levels in the workplace without having made any. finclinga tha~ the existing permi••ible level presented a significant risk of maeerial health impairment. The plurality opinion concluded (448 US at 653) that, as a matter of statutory construction, such a finclinq was required. While thftre was clic~ that the need for such a fipdinq was required for the delegation to pass constitutional muster, the qase· fully supports defendants' position here since the Council acted only after findinq that environmen~l tobacco smoke posed a significant health hazard for nonsmokers~
....,:ak.. ___ -:--___ .__...._ ___________ -···------· ---
·,
ADD07
·. 7.
bottled water, L 1987, ch 193, as support for their position
that a speqific qrant of authority is needed to enable the
Council to deal with a aubject matter in the Sanitary Code. is . . .
similarlY' unwarranted.. In fact, the enactment of the bottled
water amendment proves just the oppos~te, that the Leq~slature
and. Public Health Council act in parallel in the field..of public
he•lth, and. that, when it wishes, the LeqislatU_re expreealy
sub•titut~• its judgment for ·that of the Council. Prior to the
enac~~nt of the 198'7 ·amendment, the PUblic Health Council had
aetablished. quality st~d.ard.s and. testinq frequencies for
bbttled. water in Part s-·J. of the Sanitary cOcie. see 10 NYCRR
5-1.40, 5-1.41. ~ouqh the 1987 amendllient, the Leqislature
imposed more stringent requirements, mandating the monitorinq of
certain sUbstance• at frequencies ~t meet or exce~ ~oae tor
public water supplies. ~, !.:.S[:., Bill Jacket, A. 3315, letter
from Peter Millock, General Counsel to the State Department of
Health to Counsel to the Governor; Kemo from· Jean Miller,
General COunsel to State Consume~ ~rotection Board, to Counsel
to the Governor. Part 5·1 of the Sanitary Code, entitled
"Public Water Supplies", itself was adopted. as a chapter in 1932
pur~ant to the COuncil' a general authority to enact San! tary
Code provisions.
• AD DOS
•'" •,I'
·. To be argued by
- PETER B •. SCBI!T
Eetimateci tillle 1 30 minutes
S T .A T E. 0. F N E W Y 0 R K
FRED sOR£ALI; BOREALI~S .S'tAtJRANT, INC.,,. · -.d/b/a .~R£1U.I '·s.: . tJNI$ umUB,AN'.l' I. BO'l'BL,.
'.
T.t.~ ,.SSOC.IAT.I.O~ Q!' N;EW YOIUC. &UTE~. -INqaJ D~.I-$ 'PAJ'ERMAN;·aa Pre•~~t;Q' 't;he ~XC}BTON SEAC:Il BOARD 0!' TRAJ)E; . Ta:E BROOKL'YN. PBAMBER 0!' COMMERCE,·· INC.; 'ltOBERT WERTZ· and TH~ BARTOSIEWIC~, ... - .·
fia!ntitfs•Respondente, ~ .
' DAVID M. AXELROD, ·aa Colilmi•sioner of the Ney York State'. Department of Health, · and THE NEW YORK STATE PUBLIC HEALTH. CO~IL,
Defendanta·A~~lants.
APPELLANTS·' BRIE!' . ·.
. . . ,
ROBERT ABRAMS
. RECE\VEO _ .. t:».UG ~·71987
cOuRT 0~ ApPEALS c
Attorney General of the State of New York
Attor.ney.for Defendants-. .
0. PETER SHERWOOD Solicitor Ge~eral
PETER B. SCHIFF Deputy Solicitor General
NANCY A. SPI-EGEL DENISE A. BARTMAN Aasistant Attorneys General
of Counsel
Appellants The capitol Albany, New York 12224 Tel~~one (SlS)· 473~0330
Dated: AugUst 27, 1987
.,_
. !
.·:
. '• ~J.·~
" -..
·_;)
' .....
,>
• •• .. 't .i 1"~
.·
,,.·
ADD09
ARGUMENT · .. POIN'.r I
THE t.EGI!;LATUQ BAS PROJi'Biq.Y D~ · Am$)al'!Y '1'0 mB ~LIC BBALm COUNQIL TO.
=ll=-:.&'ta~l~~mi ·AND .. IMPRovBMitirt ·or THE PUBLIC BBAL'!L'B, INCLUDING ;;u·. ADvERsE E!'!'ECTs 0!'. ENVIRON•
'R!:NTAL ToBAcCo SMOltE. ·
16.
::'11~ majority below err4tci iJ;l holding. that ~e Public Health · .. . ~ . " . . ·~ . '
, Council exceeded ita authority to enact regula~ona for the
·preservat.f:on and improvemet of the public health . and ~au~ci
~. ieqia_lati:ve function ~rel_y ~cause the ismold.nq regulations ,
may have broad social and economic effects •. 7he majority's
appr_oach would establish a dangerQua an~ ~workable precedent
for atriking.down agency rUl,. clearly Vithin an ~ress leqielativ~ delegation. It would permit a court.to substitute
it~ own jud~nt for that of the L;eqislature reqardinq ~e scope
of'agency authority, baaed on ao~e.amo~oua conclusion that the.
social and economic effects of challenged_revulationa are '"just
too much" •
Furthermore, "public health~ by definition involves broad
· •egmen,ta ·of· the population. Consequently, measures enacted to
protect the 'public health will frequently have broad social
and/or economic impacts. 7he majority' a rationale w~uld
effectively relegate the Public Health Councdl's role to dealing
only with minor public health problems. Such a holding would
ADD10
17 . .
eviscerate the Leqielature' s intended d~le9At:ion to· ;the Public··
Health COuncil to deal with any· serious, .tatewide health ..
problem.
As obaerved by the·di•senters below,· the majority'a-holdinq
f'ailts tp ~ec~ze the prin.cipl~S of _administratiVe law Which,·. :
e.P.cialiy in instances~ere adaptability and expertise are the
~llmarks of the deleqa.fion, permit. ~e Le~islature to confer - . interstitial policymakinq authority. upon an administrative:·
aqency so lonq aa'the Leqialature establiahes standards to guide . - . . administrative discretion. The Leqiaiature has "proper~y
. . "· · conferr~d broad in~erstitial ·authority upon the Public'Bea~~·
- • 'I •
pouncil to enact and amend, the Sanitary· C~e . for the improvement
and prese.rvation· of .:th• public health. ·It is undisp.lt~ that
environmental tobacco smoke. cre~tea·a ~rioua health haZard to
ncmSJilokers and that the IIDlokinq requlations codified- at· lb NYCRR · - . . . par't 25 were devisecl to ·improve and preserve the public hea~th
by reducinq invol~tary exposur~ to environmental tobacco ·smoke.
~. r~qulationa, therefore, fall squarely within respondents' . deleqation of authority. They may be struck down only if they
are irrational or otherwise trammel upon some identifiable
con.ti tutional right.
,. .
• 1
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.. ~= ;.
<· • ~-
-~:-;t~~.~~fll~j<7.~., ~.r.:::;:o,r';.\~i"'
I ADD11
'l'HE COURT OF APPEALS
OF
THE S~ATE OF NEW YORK
-----------------------~--------------------------------. . . FRED. BOREALI: BORBALI 1 S RESTAURANT, J:NC. , d/b/a BORBALJ: 1 S 1 . t1HJ:TBD ·RESTA~, HOTJ!L, TAVERN ASSOC~ATION ()F -.. YORI( STA~,· l[lfC.·, DENNIS PAPBRMAH as Prestdent. ot the BRIGHTON BEACH BOARD OF ·:'l'RADi:, Tim BROOKLYN CHAMBER OF COMMERcii:, INC. , ROBERT WERTZ an~ THOMAS :BARTOSIEWICZ,
...
DOL. NO:
87070104
·plaintiffs-Respondents
-aqaitlst-
DAVJ:D M. AXELROD, aa·commissioner ot. the New York State Department of Health,· ~d ~ ·NBW YORK STATE PUBLIC HEAL'l'H COUNCIL,
.P8fendants-Appellants •
.. ------------------------------------------------------,..-
BRIEF OF ACTION ON SMOKING AND HEALTH '(ASH)
AS AMICUS MIAI IN SUPPORT OF DEFENDANTS-APPELLANTS
Action on smokinq and Health (ASH) 201.3 H street, N.W. · washington, o.c. 20006 (202) 659 .... 4310
by its Chief Counsel John F. Banzhaf III apmitted to practice in N.Y.S. and D.C.
SUbmi~ted: August 25, 1987
ADD12
federal and New York law, but would denude many state agencies of
th~ir utility, and ignores the realities of delegation reqtiirea
and practiced by modern· government.
Neither.the New.York P.ublic Health Law §225 nor the
counail 1s.regulations made thereunder demonstrate ~ny illegal ' .
delegation of· legislative authority. The p~wers granted by th~
Legislature to the council were wide and necessary to protect and
promote puqlic ~ealth in the state o~ New York, and in • ~i
promulgating its smo_king limJ,.tation ret;JUlat-ions, tlie Council did
not exceed the authority granted to it.
- Finallyr the App~ll.ate D-ivision erred in holding invalid the
exemption·from the r•qulations of certain establishments, such as
small rest~urants, bars, convention and trade halls. such
exemptions w~re suppo.rted by good r~asons, ·are in accordance with
New York law, and are n~t arbitrary or capricious. They are,
moreover, similar to provj,.sions oontained in Clean Indo9r Air
laws in many parts of the United States, where such exemptions
have been unchallenged or sustained.
ARGUMENT
POINT I
THE APPELLATE· DIVISION FAILED TO RECOGNIZE THE LIMITED NATURE OF
THE DOCTRINE OF SEP~TION OR DISTRIBUTION OF POWERS AND , . MISAPPLIED THAT DOCTRINE TO NuLLIFY THE SMOKING LIMITATI~N
REGULATIONS VALlDLY MADE UNDER NEW YORK PUBLIC HEALTH LAW §225.
4
r '
,.,
~-
ADD13
A. THJ APPELLATE DIVISION EAILED_TQ BECOGNIZE THAT THI DOQTijiUI
OF SEPABATIQN QR DISTRIVOTION OF PQWERS MYST BE YNQERSTQQD IN A
LJ;MITED ~ENSE.
Although it is well established that the doctrine of
separation or distribution of powers must.be respected by the
cou~s·(Meyer.v. aurns 16 Misc. 2d 252, 182 NYS 2d 56 (1958) and
that it is a fundamental of the doctrine of distribution of
powers that each department should be free from interference, in
the discha~ge of its peculiar duties, by either of the others (B§
Lotie c. 49 NY 2d 161, 424 NYS 2d 395, 400 N.E. 2d 336 (1980) ·'
the Appellate Division erred in attributihg t.oo wiae a scope to
the doctrine. · '" As·long ago as ~902, the Supreme Court of the United
states drew attention to ~e·need to g~ve limited effect to the .·
doctrine of separation of powers. In deliverinq the Opinion of
the cou:z:t in Dreyer v. IllinoJ.a 1s·1 u.s. 71, 84, ~- Just~ce
Harlan quoted, with approval, Ml:-. Justice Story on the
const:itution (Sth ~ed.) 393,~ 395. "Wh~ri we spe·ak" s~lid Story, "of
a separation of the three great department~ of government! and
m~intain_that the separation· is indispensable to.public· liberty,
we are to un4erstand tbis maxim in a limited sense. It is not
meant to affirm that they must be kept wholly and entirely
separate ana distinct, and have no common link or connection or
dependenc,, the one upon the other in the -slightest degree. ~
true meaning is. that the whole power·of one of these dtpartments
should not_ be exercised py tbe same hands which possess the whole
5
ADD14
pqwer of eitber of the other departm§nts; and that such exercise
of tbe whol' ~ould subyert the principles of_ a free constitution •
• Indeed, there is.not a sinqle constitution in ariy state of
the union, which does not practica~ly embrace acknowledgment of
the maxim, and at the same time some admixture of powers
constituting an ex.ception to it." [Emphasis supplied]
This understanding of the doctrine of separation of . .
powers in Dreyer was approved by Chief Justice·CUll~n in Trustees
.of Saratoga Sprin~s v. saratqga Gas. Electric Light and Power co.
·. i91 NY 123 (1908) _when the court considered whether a New York
law -- establishing a gas and electricity commission, and giving
the commission autho~~ty to fix a maximum price ~- was
unconstitutional as violating the doctrine of separation of
powers; and held that it was not. The·court stated·'that a
legislature may certaiply delegate to·others powers which the
legislature may rightfully exercise itself and pointe~ out, as an
example, that th& state frequently delegates legislative powers
to municipal governments.
In the light of such a limited interpretation of the
doct':_ine of s~paration of powers, the Appeal Division's wide
understanding would appear to be erroneous.
B. THE NEW YORK CO;tJSTITUTION DOES NOT SUPPORT A RIGID.
INTEBPRETATION OF THE DOCTRINE OF SJPABATION OF PQWERS.
Many_state constitutions contain a spe~ific provision making
an express division of the powers of government between the
legislative, executive ~nd judicial branches.
6
ADD15
The New York constitution, which the Appellate Division
cited as authority for its Opinion does not, however, contain any
~uch express provision and separation of. powers is included only
by implication.
New York.courts have, moreover, held that the separation of
powers doctrine does not require an'entire and complete
separation; or completely bar a.ny blending of ~~vernment powers
. Thus, in Trustees of Saratoga Springs, (suPrar at p. 126)
Chief Justice cullen pointed out that in New York the legislative
power is plenary, except as limited by federal and state
constitutions "and that there has never been in this state that
sharp line o~ demarcation between ~e functions of the. three
br~ches of go.vernment which obtains in some other'
jurisdictions."
Simllarly; in feople v. 1'remaine 252 NY 27, 30, 168 N.E.
a17, 820 (1929) the court stated that, notwithstanding the
division of powers between the executive, legislative and
judicia'! departmt~mts, the fact that 11the border lines of the
three great departments of government are no~ definiteȴ traced
and that ~he division of such powers is not absolute.is well
understood. . ••• It may be said in general terms that the
Legislature makes laws and the executive enforces them when made,
and each ~s, in the main, supreme within its own field of action,
although comm~n sense and the necessities of government do not •
require or permit a captious, doctrinaire and inelastic
classification of governmental functions."
7
ADD16
The New York constitution does not, therefore; provide a
basis for a rigid interpretation of the doctrine of separation or
distribution of powers.
C. A STRICT APPLICATION .OF THE DOQTRINE OF SEPABATION OF
POWJRS WOULD DENUDE MANX A&ENCIES. Sl(CB AS THE NEW YORK .PUBLIC
HEA"TH COUNCIL, OF· TBEIR UTILITY, AND MANY EXERCISES OF.
GO'VE~T Powj:R WOULP BICOME .. IMPQSSIBLE. . .
The United States Supreme ~ourt and New York.courts have
recognized that a r~gid interpretation and application of the
doctrine of.separation of powers is incompatible with tHe role of
government action in a democratic.soci~ty:
Thus, in Ya)rus v. Upit?d states 321 u.s. 414, 424 .(1943)· the
court upheld"a rule, with"penal sanctions, that prices should not . .
be greater. than those fixed by maximum price requlations which • 4 * •
conformed to standards established by COriC!Jre&s, and which would
tend to further the.poliey which Congress· had establ~shed~ Mr.
Justice stone stated that the Constitution, ~s a continuously
operative charter of government, did not demand the impossible or
the impracticable. .It did not require that Congress find for
itself every fact upon which it desired legislatlve action or
~at it should make for itself detailed determinations ~hich it
had declared to be prerequisite to the application of the
legislative policy to particular facts and circumstances
impossible for congress it~elf properly to investigate. The
essentials of the legislative function are th~ determination of
8
'··
ADD17
t~e leqislativ~ policy and.its formulation and promulgation as a
defined and binding rule of conduct • .. ~r. Justice stone added "Nor does the doctrine of separation . .
of powers deny to Congress power to direct that an ad.minist:a:ative
officer properly designated for that purpose have ample latitude
within which he is to ·ascertain the co~ditions whidh congress has
made prerequisite to 1;he oper«:Ltion of· its leqislative ~omman.d."
Regulations qoverning holding companies were challenged in ~
Am!rigan Power co. v. S.E.c 329 u.s .. 90, 105 (19461 on the ground . ·that ~here h~d been an \mconsti tutional delegation of legislative
power to the Securitiea and Exchange-commission because of an
alleged absence Qf any ascertainable standards for guidance in . .
carryinq out its functions. In holdinq the regulations valid Mr • . . Justice Murphy stated tmat the "legislative.process would
frequently bog down if congress were required to appraise
befor~hand the m~iad situatio~s to which it wishes a particular
policy to be applied and to formUlate rules for each situation•"
.. Nec.essity, therefore, fixed a point· so far as is reasonabl~ and
practicable, and •ust leave to executive officers the authority "
to accomplish its purpose. Congress, moreover, need not make
specific standard~ for each sQbsidiary executive action in
carryinq out a policy.
In New York, a long succession of cases has recqgnized the
limits placed upon the.doctrine qf separat~on o~ powers by the
demands made upon modern government, and the need to delegate
powers to comply with such dema~ds.
9
~· ..
ADD18
Thus, in BA Rioharason 247 N.Y. 401, 403, 160 N,E. 655, 657
(1928) Chief Justice ca,rdozo said that "The ·exigencies of
government have made it necessary to relax a merely doctrinaire
adherence to a principl.e so flexible and practical, so largely a
matter of sensible· approximation, as that of the· sep~ration of
powers. 11
Many subsequent New York cases have upheid, as
constitutional, the delegation of .. quasi-legislative functions to
state ~gencies of which utica v. water Pollution Control aoard 5
N.Y. 2d 164, i69, 182 N .• Y.s. 2d 584, 58S (1959) ·is but one
example. Th~re the court held that a water pollution contro~ law
was not an inval~d delegation of legisl~tive a~thority where the
Water Poilut~on·Control Board was given wide powers to empl~y
~rts fnd adopt c],assi"ficatic;ms of pollution. . . . . .
Judge Fuld held that it was "proper and fitting for the
Legisiature to assign b~oad fUnctions to the Board, particularly
when it was contemplated and understood that its members were to
bring to their work a famili~rity with con~itiQns which the
individual legislators would not be expected to possess."
utict affords an i~teresting comparison with the instant
case whe~e .the protection of health under N~w York Publi~ Health
Law 022~ requires action by the Public Health council i~
consultation with medical. and other experts wh~ would bring to
health problema.s~ch as smoking "a familiarity wit~ condition~
which the individual legislators could not be expected to
possess.n
10