Court of Appeals - Louisiana State University … · apl-2013-00291 new york county clerk’s index no. 653584/12 court of appeals state of new york new york statewide coalition of

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


Steven F. Molo Ben Quarmby MOLOLAMKEN LLP 540 Madison Avenue New York, NY 10022 (212) 607-8170



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


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 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



Steven F. Molo BenQuarmby MOLOLAMKEN LLP 540 Madison Avenue New York, NY 10022 (212) 607-8170



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~ definite»¥ 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

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