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Garcia v. New York City Department of Health & Mental Hygiene

New York Court of Appeals

June 28, 2018

Magdalena Garcia, & c., et al., Respondents,
v.
New York City Department of Health and Mental Hygiene, et al., Appellants.

          Richard Dearing, for appellants.

          Aaron Siri, for respondents.

          STEIN, J.

         On this appeal, respondents the New York City Department of Health and Mental Hygiene (the Department), the New York City Board of Health (the Board), and Dr. Mary Travis Bassett, as Commissioner of the Department, argue that Supreme Court and the Appellate Division erred by enjoining enforcement of the Board's amendments to the New York City Health Code mandating that children between the ages of 6 months and 59 months who attend city-regulated child care or school-based programs receive annual influenza vaccinations. We agree. The Board's promulgation of the flu vaccine rules falls squarely within the powers specifically delegated to the Department in New York City Administrative Code § 17-109, and the Board's actions did not violate the separation of powers doctrine. Further, the flu vaccine rules are not preempted by state law.

         I. Background

         New York City and New York State share regulatory authority over child care facilities and programs located in the City. Through the New York City Health Code, the Department and Board [1] regulate health and safety standards for school-based programs for children ages three through five years, as well as public and private group day care services for children under the age of six (see NY City Health Code [24 RCNY] arts 43 & 47), while the State maintains oversight of smaller family and group family day care programs, as well as school-age child care (see Social Services Law § 390 [1] [c]-[f], [13]).

         As a matter of state law, Public Health Law § 2164 requires every child between the age of 2 months and 18 years to receive vaccines against certain enumerated diseases-namely, "poliomyelitis, mumps, measles, diphtheria, rubella, varicella, Haemophilus influenzae type b (Hib), pertussis, tetanus, pneumococcal disease, and hepatitis B" (Public Health Law § 2164 [2] [a]). Absent proof of these immunizations, the Public Health Law prohibits officials in charge of "any public, private or parochial child caring center, day nursery, day care agency, nursery school, kindergarten, elementary, intermediate or secondary school" within the state from allowing any unvaccinated child to attend for more than 14 days (id. § 2164 [1] [a], [7] [a]). However, a statutory exception permits admission of an unvaccinated child if a physician certifies that "immunization may be detrimental to [the] child's health" or if the child's parent or guardian objects based on "genuine and sincere religious beliefs" (id. § 2164 [8], [9]). [2]

         Prior to the amendments at issue here, New York City Health Code §§ 43.17 and 47.25 required that children attending child care programs under the Department's jurisdiction "be immunized in accordance with Public Health Law § 2164, or successor law, and have such additional immunizations as the Department may require" (former NY City Health Code [24 RCNY] §§ 43.17 [a] [2]; 47.25 [a] [2]). In December 2013, following a public hearing and comment period, the Board amended Health Code §§ 43.17 and 47.25, as relevant here, to provide that all children between the ages of 6 months and 59 months who attend child care or school-based programs under the Department's jurisdiction must also receive annual influenza vaccinations (see NY City Health Code [24 RCNY] §§ 43.17 [a] [2] [B] [i]; 47.25 [a] [2] [B] [i]). As with the other required vaccinations, a child may be exempt from the flu vaccine requirement upon a physician's certification or on the basis of "genuine and sincere religious beliefs" held by the child's parent or guardian (NY City Health Code [24 RCNY] §§ 43.17 [a] [2] [B] [i]; 47.25 [a] [2] [B] [i]). The Board's amendments authorized officials in charge of child care and school programs to deny admission to any child who fails to provide proof of influenza vaccination and established an appeals process for those denied admission on that ground (see id. §§ 43.17 [a] [2] [B] [ii]; 47.25 [a] [2] [B] [ii]). Under the new flu vaccine rules, a child care provider or school "that fails to maintain documentation showing that each child in attendance has either received each vaccination required by this subdivision or is exempt from such a requirement... will be subject to fines" for each unvaccinated child permitted entry (id. § 43.17 [a] [2] [C]; see id. § 47.25 [a] [2] [C]).

         Petitioners-parents of children enrolled in child care programs subject to the flu vaccine rules who object to their children receiving the vaccination-commenced this hybrid CPLR article 78 proceeding and declaratory judgment action to enjoin respondents from enforcing the flu vaccine rules or, alternatively, to have the court declare such rules invalid. Petitioners maintained that the Board's adoption of those rules exceeded its regulatory authority and violated the separation of powers doctrine. Petitioners also argued that the flu vaccine rules were preempted by the Public Health Law and that only the state legislature may mandate vaccinations for school children. Respondents cross-moved to dismiss the petition.

         Supreme Court granted petitioners' motion, denied respondents' cross motion, and permanently enjoined respondents from enforcing the flu vaccine rules (2015 NY Slip Op 32601[U] [Sup Ct, NY County 2015]). The court held that the "New York State Legislature retains the statutory authority to mandate vaccinations not already expressed within the Public Health Law," and that "[r]espondents['] actions in enacting the [flu vaccine rules] are not contemplated in the statute and are outside of the law" (id. at *5).

         On respondents' appeal, the Appellate Division affirmed, but employed different reasoning, concluding that "[t]he motion court improperly found that the Board of Health's adoption of the challenged [flu vaccine rules] was preempted by state law" (144 A.D.3d 59, 65 [1st Dept 2016]). According to the Appellate Division, "[t]here is no field preemption here because the State has not assumed full regulatory responsibility over the entire field of disease control and vaccination" and, further, "[t]he absence of the flu vaccination from the mandated list does not present a conflict because [Public Health Law § 2164] contains no language prohibiting localities from requiring additional vaccinations not mandated by the State" (144 A.D.3d at 65, 67).

         Nevertheless, the Appellate Division held that the flu vaccine rules were invalid as enacted, under the analysis set forth in Boreali v Axelrod (71 N.Y.2d 1');">71 N.Y.2d 1 [1987]) and its progeny, because the "particular scheme adopted by the Board exceeded the scope of its regulatory authority" (144 A.D.3d at 62). The Court clarified, however, that it was not holding that the Board lacked the authority to mandate vaccination of young children, given that section 17-109 of the Administrative Code of the City of New York empowers the Department to "take measures, and supply agents and offer inducements and facilities for general and gratuitous vaccination" (Administrative Code of the City of New York § 17-109 [a], [b]; see 144 A.D.3d at 71-72). Rather, the Appellate Division emphasized, its "only holding" was that "the particular scheme" adopted by the Board "involved improper policy decisions, and thus did not constitute appropriate rulemaking" (144 A.D.3d at 72).

         We granted respondents leave to appeal (lv granted 28 N.Y.3d 913 [2017]), and now reverse.

         II. Separation of Powers

         Respondents argue that the Appellate Division erred in concluding that the Board violated the separation of powers doctrine by adopting the flu vaccine rules. More specifically, respondents contend that the legislature has delegated to the Board, through Administrative Code § 17-109, the necessary authority to promulgate rules relating to vaccinations, including those challenged here. Respondents further assert that the Appellate Division inappropriately applied the Boreali factors (71 N.Y.2d at 11-14) to second-guess the manner in which the Board exercised its regulatory authority, instead of merely determining whether the Board possessed the requisite authority to promulgate the rules in the first instance. In response, petitioners argue that the Appellate Division correctly held that the Board exceeded its regulatory authority and impermissibly crossed the threshold into legislative policy-making.

         " The concept of the separation of powers is the bedrock of the system of government adopted by this State in establishing three coordinate and coequal branches of government, each charged with performing particular functions'" (Matter of NYC C.L.A.S.H., Inc. v New York State Off. of Parks, Recreation & Historic Preserv., 27 N.Y.3d 174, 178 [2016], quoting Matter of Soares v Carter, 25 N.Y.3d 1011, 1013 [2015]). This principle, "implied by the separate grants of power to each of the coordinate branches of government, requires that the Legislature make the critical policy decisions, while the executive branch's responsibility is to implement those policies" (Bourquin v Cuomo, 85 N.Y.2d 781, 784 [1995] [internal quotation marks and citations omitted]; see NY Const., art III, § 1; art IV, § 1).

         Separation of powers challenges often involve the question of whether a regulatory body has exceeded the scope of its delegated powers and encroached upon the legislative domain of policymaking (see Greater N.Y. Taxi Assn. v New York City Taxi & Limousine Commn., 25 N.Y.3d 600, 608 [2015]). However, the distinction between unauthorized policymaking and permissible regulating is not always an easy one to define. The powers of the legislative and executive branches "cannot be neatly divided into isolated pockets" (Bourquin, 85 N.Y.2d at 784). A regulatory agency "is clothed with those powers expressly conferred by its authorizing statute, as well as those required by necessary implication" (Matter of Acevedo v New York State Dept. of Motor Vehs., 29 N.Y.3d 202, 221 [2017]; see Matter of General Elec. Capital Corp. v New York State Div. of Tax Appeals, Tax Appeals Trib., 2 N.Y.3d 249, 254 [2004]). Generally, "an agency can adopt regulations that go beyond the text of [its enabling] legislation, provided they are not inconsistent with the statutory language or its underlying purposes" (Matter of General Elec. Capital Corp., 2 N.Y.3d at 254). The guiding legislation "need not be detailed or precise as to the agency's role" and, as an overarching principle, "common sense must be applied when reviewing a separation of powers challenge" (Greater N.Y. Taxi Assn., 25 N.Y.3d at 609).

         In Boreali and subsequent cases, we have clarified the "difficult-to-define line between administrative rule-making and legislative policy-making" by articulating four "coalescing circumstances" relevant to rendering such a determination (71 N.Y.2d at 11; see Matter of Acevedo, 29 N.Y.3d at 222; Greater N.Y. Taxi Assn., 25 N.Y.3d at 610; Matter of New York Statewide Coalition of Hispanic Chambers of Commerce v New York City Dept. of Health and Mental Hygiene, 23 N.Y.3d 681, 696 [2014]). These circumstances are: whether (1) the regulatory agency" balanc[ed] costs and benefits according to preexisting guidelines,' or instead made value judgments entail[ing] difficult and complex choices between broad policy goals to resolve social problems'" (Matter of Acevedo, 29 N.Y.3d at 222-223, quoting Greater N.Y. Taxi Assn., 25 N.Y.3d at 610); (2) the agency "merely filled in details of a broad policy or if it wrote on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance'" (Matter of NYC C.L.A.S.H., 27 N.Y.3d at 182, quoting Greater ...


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