In the Matter of New York Statewide Coalition of Hispanic Chambers of Commerce, et al., Respondents,v.The New York City Department of Health and Mental Hygiene, et al., Appellants.

Brief

N.Y.Jun 4, 2014

APL-2013-00291 New York County Clerk’s Index No. 653584/12 Court of Appeals STATE OF NEW YORK NEW YORK STATEWIDE COALITION OF HISPANIC CHAMBERS OF COMMERCE, THE NEW YORK KOREAN-AMERICAN GROCERS ASSOCIATION, SOFT DRINK AND BREWERY WORKERS UNION, LOCAL 812, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, THE NATIONAL RESTAURANT ASSOCIATION, THE NATIONAL ASSOCIATION OF THEATRE OWNERS OF NEW YORK STATE, and THE AMERICAN BEVERAGE ASSOCIATION, Plaintiffs-Petitioners-Respondents, For a Judgment Pursuant to Articles 78 and 30 of the Civil Practice Law and Rules —against— THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE, THE NEW YORK CITY BOARD OF HEALTH, and DR. THOMAS FARLEY, in his official capacity as Commissioner of the New York City Department of Health and Mental Hygiene, Defendants-Respondents-Appellants. BRIEF OF AMICUS CURIAE DEAN ERIC LANE IN SUPPORT OF PLAINTIFFS-PETITIONERS-RESPONDENTS April 25, 2014 Noel J. Francisco Ryan D. Newman William D. Coglianese Anthony J. Dick Sarah A. Hunger Matthew R. McGuire JONES DAY 51 Louisiana Avenue NW Washington, DC 20001 Tel.: (202) 879-3939 Fax: (202) 626-1700 ajdick@jonesday.com Counsel for Amicus Curiae Dean Eric Lane i TABLE OF CONTENTS Page STATEMENT OF INTEREST ................................................................................ 1 PRELIMINARY STATEMENT .............................................................................. 2 ARGUMENT............................................................................................................ 4 I. The New York City Charter Forbids Administrative Agencies From Exercising Unconstrained Law-Making Authority. ............................. 4 A. The City Charter Clearly Separates The Legislative And Executive Powers Of The City Government. ............................... 5 B. This Court Has Long Recognized That Administrative Agencies Can Only Act Within The Scope Of Their Delegated Authority. ............................................................................ 8 II. Recent Reforms To The New York City Charter Remove Any Doubt That Agencies Cannot Exercise Unconstrained Law-Making Authority. ................................................................................ 10 III. Because The Board Of Health Is An Administrative Agency Within The Executive Branch, It Does Not Have Unconstrained Law-Making Authority. ....................................................... 17 A. The Board Of Health Is An Executive-Branch Administrative Agency. ..................................................................... 18 B. The Board Can Only Exercise Delegated Rule-Making Authority, Not Legislative Authority. ................................................ 21 C. Defendants’ Position Is Contrary To The Structural Reforms Adopted To Ensure That Only The City Council Wields Legislative Authority. .............................................. 24 CONCLUSION ...................................................................................................... 25 ii TABLE OF AUTHORITIES Page CASES Bd. of Estimate of City of N.Y. v. Morris, 485 U.S. 986 (1988) ............................................................................................ 14 Bd. of Estimate of City of N.Y. v. Morris, 489 U.S. 688 (1989) ............................................................................................ 14 Boreali v. Axelrod, 71 N.Y.2d 1 (1987) ......................................................................................passim Campagna v. Shaffer, 73 N.Y.2d 237 (1989) ................................................................................. 8, 9, 21 Grossman v. Baumgartner, 17 N.Y.2d 345 (1966) ......................................................................................... 24 In re Bakers Mut. Ins. Co. of N.Y., 301 N.Y. 21 (1950) ............................................................................................. 21 Levine v. Whalen, 39 N.Y.2d 510 (1976) ........................................................................................... 8 Med. Soc’y of State v. Serio, 100 N.Y.2d 854 (2003) ............................................................................. 9, 22, 23 Metropolitan Bd. of Health v. Heister, 37 N.Y. 661 (1868) ............................................................................................. 24 Morris v. Bd. of Estimate, 647 F. Supp. 1463 (E.D.N.Y. 1986) ................................................................... 13 Morris v. Bd. of Estimate, 831 F.2d 384 (2d Cir. 1987) ............................................................................... 13 N.Y. State Health Facilities Ass’n, Inc. v. Axelrod, 77 N.Y.2d 340 (1991) ......................................................................................... 22 N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C. Dep’t of Health & Mental Hygiene, 970 N.Y.S.2d 200 (N.Y. App. Div. 2013) ............................................................ 2 People v. Blanchard, 288 N.Y. 145 (1942) ........................................................................................... 24 Rent Stabilization Ass’n of N.Y.C. v. Higgins, 83 N.Y.2d 156 (1993) ................................................................................. 7, 9, 22 iii Subcontractors Trade Ass’n v. Koch, 62 N.Y.2d 422 (1984) ........................................................................................... 6 Under 21 v. City of New York, 65 N.Y.2d 344 (1985) ................................................................................... 4, 6, 8 CHARTER PROVISIONS N.Y.C. CHARTER § 3 .................................................................................................. 6 N.Y.C. CHARTER § 6 .................................................................................................. 6 N.Y.C. CHARTER § 21 .............................................................................. 5, 10, 21, 22 N.Y.C. CHARTER § 28 ................................................................................................ 5 N.Y.C. CHARTER § 551 ............................................................................................ 18 N.Y.C. CHARTER § 553 ...................................................................................... 18, 20 N.Y.C. CHARTER § 554 ............................................................................................ 18 N.Y.C. CHARTER § 556 ............................................................................................ 22 N.Y.C. CHARTER § 558 ............................................................................................ 21 N.Y.C. CHARTER § 1041 ............................................................................................ 7 N.Y.C. CHARTER § 1043 ............................................................................................ 7 CONSTITUTIONAL PROVISIONS N.Y. CONST. Article IX, § 1 ..................................................................................... 10 N.Y. CONST. Article XII, § 2 ................................................................................... 19 STATUTES AND REGULATIONS 1866 N.Y. Laws, Chapter 74, § 1 ............................................................................ 18 1866 N.Y. Laws, Chapter 74, § 2 ............................................................................ 19 1866 N.Y. Laws, Chapter 74, § 4 ............................................................................ 19 1866 N.Y. Laws, Chapter 74, § 9 ............................................................................ 19 1866 N.Y. Laws, Chapter 74, § 12 .......................................................................... 19 1870 N.Y. Laws, Chapter 137, § 29 ........................................................................ 19 1870 N.Y. Laws, Chapter 137, § 30 ........................................................................ 19 1870 N.Y. Laws, Chapter 137, § 31 ........................................................................ 19 1870 N.Y. Laws, Chapter 137, § 43 ........................................................................ 19 iv 1870 N.Y. Laws, Chapter 137, § 90 ........................................................................ 19 N.Y. MUN. HOME RULE § 36 .................................................................................... 14 R.C.N.Y. Title 24, § 81.53 ....................................................................................... 21 OTHER AUTHORITIES FINAL REPORT OF THE N.Y.C. CHARTER REVISION COMM’N, JAN. 1989 - NOV. 1989 (1990) ................................................................. 15, 16, 17 Frederick A.O. Schwarz, Jr. & Eric Lane, The Policy and Politics of Charter Making: The Story of New York City’s 1989 Charter, 42 N.Y.L. SCH. L. REV. 723 (1998) .............................................................passim N.Y.C. Dep’t of Health & Mental Hygiene, 2013 Notices of Adoption, available at http://goo.gl/20VV99 ...................................................................... 20 PRELIMINARY REPORT AND DRAFT OF PROPOSED CHARTER FOR THE CITY OF NEW YORK (1936) ................................................................... 20 REPORT OF THE N.Y.C. CHARTER REVISION COMM’N, DEC. 1986 - NOV. 1988 (1989) ................................................................ 11, 14, 20 WALLACE S. SAYRE & HERBERT KAUFMAN, GOVERNING NEW YORK CITY: POLITICS IN THE METROPOLIS (W.W. Norton & Co. 1965) ................................ 12 1 Dean Eric Lane respectfully submits this brief, accompanied by his motion for amicus curiae relief under N.Y. Court of Appeals Rules of Practice §§ 500.12 and 500.23, in support of Plaintiffs-Petitioners-Respondents New York Statewide Coalition of Hispanic Chambers of Commerce; the New York Korean-American Grocers Association; Soft Drink and Brewery Workers Union, Local 812; International Brotherhood of Teamsters; the National Restaurant Association; the National Association of Theatre Owners of New York State; and the American Beverage Association (collectively, “Plaintiffs”) in the above-captioned action. STATEMENT OF INTEREST This appeal poses fundamental questions about the structure of New York City’s government and the separation of powers. Amicus Eric Lane has unique insight into these questions, grounded in his personal experience as executive director and counsel to two successive Charter Revision Commissions that, during the late 1980s, crafted sweeping modifications to the City’s government. In addition, he currently serves as the Dean of the Maurice A. Deane School of Law at Hofstra University and as the Eric J. Schmertz Distinguished Professor of Public Law and Public Service. He regularly teaches courses in, among other things, constitutional law, administrative law, and the legislative process. Dean Lane submits this brief to aid the Court in understanding the nature and source of the New York City Board of Health’s authority. 2 PRELIMINARY STATEMENT This case is about the allocation of power in the City of New York. The parties agree that the specific question before the Court is whether the New York City Board of Health has the power to enact a rule banning many businesses from selling soda and other sugary drinks in containers larger than 16 ounces. But the parties disagree on the standards the Court should apply in answering that question. Historically, this Court has analyzed constitutional challenges to agency action by asking whether the action is beyond the scope of the agency’s delegated authority, and hence unlawful as a violation of the separation of powers. See generally Boreali v. Axelrod, 71 N.Y.2d 1 (1987). Both courts below accepted Plaintiffs’ argument that this analysis applies, and those courts found that the Board had gone beyond its delegated authority by “engag[ing] in broad-based public policy determinations.” N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C. Dep’t of Health & Mental Hygiene, 970 N.Y.S.2d 200, 206- 07 (N.Y. App. Div. 2013) (internal quotation marks and citation omitted). But Defendants contend that separation-of-powers limitations are inapplicable here because, they say, the Board has authority in matters of public health to exercise the powers of a legislature—even though they concede that the Board is no legislature. Defs.’ Reply Br. at 4. Under Defendants’ view, the Board is unconstrained in its authority to regulate matters pertaining to public health. 3 Defendants’ position flies in the face of one of the most venerable doctrines in all of American law: the separation of powers. This conclusion follows directly from several very basic—and entirely uncontroversial—premises: The New York City Charter adheres to traditional separation-of-powers principles by assigning the legislative power to the legislative branch and the executive power to the executive branch, by placing administrative agencies within the executive branch, and by providing that agencies can act only within the scope of authority that is specifically delegated to them. The Board is, and in fact can only be, part of the executive branch. Therefore, the Board—just like any other agency—cannot exercise the legislative power, and can only exercise delegated authority in accordance with basic separation-of-powers limitations. The fundamental building blocks of administrative law put to rest Defendants’ argument that the Board is somehow not subject to the usual standards for assessing challenges to agency action. And the applicability of those standards is further confirmed by New York City’s own recent history, for only 25 years ago the City adopted substantial revisions to its Charter specifically for the purpose of clarifying that the legislative power is vested exclusively in the City’s legislative branch—namely, the City Council. As executive director and counsel to the two Charter Revision Commissions that crafted these revisions, amicus has special insight into the implications of those reforms for this case. Through these reforms, 4 the people of New York City—who voted to accept both Commissions’ Charter revisions—reaffirmed the very line that Defendants now ask this Court to erase. Although it is not the purpose of this amicus brief to take a position on how the Court should resolve the ultimate question regarding the Board’s authority to enact the soda ban, there is no doubt that this question must be resolved using the same standards that this Court always applies in considering challenges to agency action. Specifically, the Court should ask whether the soda ban fits within the scope of the Board’s delegated authority or instead reflects a usurpation of the City Council’s legislative power. ARGUMENT I. The New York City Charter Forbids Administrative Agencies From Exercising Unconstrained Law-Making Authority. In establishing the contours of the City’s government, the New York City Charter adheres to traditional separation-of-powers principles by “provid[ing] for distinct legislative and executive branches.” Under 21 v. City of New York, 65 N.Y.2d 344, 356 (1985). The Charter also makes clear that agencies exist within the City’s executive branch and answer to the Mayor. As a result, this Court has long recognized that agencies cannot wield legislative power, and instead are constrained by the specific delegation of authority they have received. 5 A. The City Charter Clearly Separates The Legislative And Executive Powers Of The City Government. 1. The New York City Charter establishes a clear division between the legislative and executive powers. The Charter expressly provides that the City Council “shall be the legislative body of the city” and is “vested with the legislative power of the city.” N.Y.C. CHARTER § 21 (emphasis added). The Charter does not vest “the legislative power” in any other body, and specifically protects against encroachments on the Council’s authority: “[a]ny enumeration of powers in this charter shall not be held to limit the legislative power of the council, except as specifically provided in this charter.” Id. The Charter also establishes the sweeping nature of the Council’s authority as the City’s legislative body. Most fundamentally, the Council is empowered to enact the laws of the City: The council in addition to all enumerated powers shall have power to adopt local laws which it deems appropriate, which are not inconsistent with the provisions of this charter or with the constitution or laws of the United States or this state, for the good rule and government of the city; for the order, protection and government of persons and property; for the preservation of the public health, comfort, peace and prosperity of the city and its inhabitants; and to effectuate the purposes and provisions of this charter or of the other law relating to the city. Id. § 28(a). The Council possesses a number of other powers as well (see N.Y.C. CHARTER §§ 28-31), all flowing from the Council’s foundational role as the City’s lawmaking body. 6 2. The Charter vests the City’s executive power, by contrast, in the Mayor, whom the Charter designates as “the chief executive officer of the city.” Id. § 3. In this capacity, the Mayor is “empowered to implement and enforce legislative pronouncements emanating from the Council.” Subcontractors Trade Ass’n v. Koch, 62 N.Y.2d 422, 427 (1984). The Mayor cannot, of course, exercise the Council’s authority to enact laws—but he is responsible for ensuring that those laws are enforced. Under 21, 65 N.Y.2d at 356. 3. The Charter also makes clear where administrative agencies fit within this separation of powers: the executive branch. Agencies are placed under the authority of the Mayor, whom the Charter requires to “appoint the heads of administrations, departments, all commissioners and all other officers not elected by the people.” N.Y.C. CHARTER § 6(a). The Charter also generally authorizes the Mayor to remove those public officials from office, unless some other provision of law establishes a different mechanism for removal. Id. § 6(b). These administrative heads thus answer directly to the Mayor. In addition, the Charter includes detailed provisions establishing the nature of agency authority and making clear that this authority is unequivocally executive in nature. These provisions, known as the City Administrative Procedure Act (CAPA), apply to all City agencies, which are defined in part as “any one or more of the elected or appointed officers provided for in this charter and any other 7 official or entity which is acting” under the authority of such elected or appointed officers. Id. § 1041(2). Agency authority is necessarily limited in scope: CAPA authorizes agencies to enact regulations only as “necessary to carry out the powers and duties delegated to [them] by or pursuant to federal, state or local law.” Id. § 1043(a). Agencies are thus “arm[s] of the executive branch,” Rent Stabilization Ass’n of N.Y.C. v. Higgins, 83 N.Y.2d 156, 169 (1993), that (1) are headed by elected or appointed officials, and (2) exercise specifically delegated authority. In implementing their delegated authority, agencies must comply with the detailed procedural requirements set forth in CAPA. Most importantly, agencies must allow a period of public comment on all proposed rules, and generally must conduct a public hearing before promulgating a final rule. N.Y.C. CHARTER § 1043(b)(1), (e). The Mayor’s office also must review every rule before it is published. Id. § 1043(d). Final rules are published in the Rules of the City of New York, not in the Administrative Code (which codifies the laws enacted by the City Council). Id. § 1043(f)(1)(c). Several foundational principles are thus evident from the City Charter. First, the Charter divides the powers of government between the legislative and executive branches. The Council exercises the former, the Mayor the latter, and neither can usurp the other’s authority. Second, administrative agencies are under the authority of the Mayor, who appoints and removes their heads, monitors their 8 operations, and reviews their rules. Third, in exercising the rule-making function, agencies act pursuant to specifically delegated authority. B. This Court Has Long Recognized That Administrative Agencies Can Only Act Within The Scope Of Their Delegated Authority. For the separation of powers to mean anything, agencies must act only in accordance with the specific delegation of authority they have received—anything else would result in the agency usurping the legislative power, which has been vested solely in the City Council. To ensure that the separation of powers is not circumvented in this manner, the Court has recognized in the context of the State Constitution—which, like the New York City Charter, operates according to traditional separation-of-powers principles (Under 21, 65 N.Y.2d at 356)—a distinction between delegable agency authority and the legislative power. The “law-making functions” cannot be shifted away from the legislative body, but there is no “prohibition against the delegation of power, with reasonable safeguards and standards, to an agency or commission to administer the law as enacted by the Legislature.” Boreali, 71 N.Y.2d at 10 (quoting Levine v. Whalen, 39 N.Y.2d 510, 515 (1976)). The power of agencies, in other words, is limited. Agencies necessarily “act pursuant to specific grants of authority conferred by their creator”—which, in New York City, is the Charter itself. Campagna v. Shaffer, 73 N.Y.2d 237, 242 (1989). 9 In elucidating the line between proper agency action and unlawful encroachments on legislative authority, this Court has emphasized that the terms of an agency’s delegated powers are paramount. “An agency is ‘clothed with those powers expressly conferred by its authorizing statute, as well as those required by necessary implication.’” Id. Most often, this delegated authority includes the power to enact regulations pertaining to certain defined subjects. But such a delegation of rule-making power does not convert an agency into an unelected legislature. “As an arm of the executive branch of government, an administrative agency may not, in the exercise of rule-making authority, engage in broad-based public policy determinations.” Rent Stabilization Ass’n, 83 N.Y.2d at 169. This Court has thus viewed it as “axiomatic” that an “administrative officer has no power to declare through administrative fiat that which was never contemplated or delegated,” nor can “[a]n agency … by its regulations effect its vision of societal policy choices.” Campagna, 73 N.Y.2d at 242-43. This distinction between rule-making and law-making has significant implications for democratic self-governance. The Council, as the City’s elected legislative body under the State Constitution (N.Y. CONST. art. IX, § 1(a)) and City Charter (N.Y.C. CHARTER § 21), wields broad authority to make decisions that impact virtually all aspects of life in the City. If residents disfavor the Council’s policy judgments, they can express this by voting out the Council members they 10 disagree with and replacing them with members who will follow their preferred course. Administrative agencies, by contrast, have none of these safeguards. Headed by appointees and staffed by ordinary employees, agencies are insulated from the people. It is therefore significant that, while the Charter delegates authority to agencies that specialize in particular subject-matters, it does not vest any unfettered law-making power in unelected agency officials. See N.Y.C. CHARTER § 21; see also, e.g., Boreali, 71 N.Y.2d at 9 (“[E]nactments conferring authority on administrative agencies in broad or general terms must be interpreted in light of the limitations that the Constitution imposes.”). II. Recent Reforms To The New York City Charter Remove Any Doubt That Agencies Cannot Exercise Unconstrained Law-Making Authority. The separation-of-powers principles discussed above are well-established, and those principles alone are sufficient to resolve the threshold question as to the nature of the Board’s authority. Moreover, these foundational principles are underscored by recent reforms to the City Charter, which were expressly designed to ensure that the legislative power is vested solely in the City Council and that no other body can exercise this law-making power. To understand the significance of these reforms, it is necessary to review developments that occurred during the late 1980s, when two successive Charter Revision Commissions crafted amendments to the Charter that, once ratified by voters, represented “the broadest and most radical changes to the[] Charter since 11 1901.” Frederick A.O. Schwarz, Jr. & Eric Lane, The Policy and Politics of Charter Making: The Story of New York City’s 1989 Charter, 42 N.Y.L. SCH. L. REV. 723, 729 (1998) (hereinafter Charter Making). 1. This overhaul of the City’s government began with events surrounding a unique entity known as the Board of Estimate. The Board of Estimate had “been one of the city’s key governing institutions since the turn of the century.” REPORT OF THE N.Y.C. CHARTER REVISION COMM’N, DEC. 1986 - NOV. 1988 at 14 (1989) (hereinafter 1986-1988 REPORT). This body had no equal in the City’s government because, unlike any other organ of City government, it had arrogated to itself the power to exercise both executive and legislative authority. For example, the Board of Estimate retained control of the appropriations process and the City’s zoning law (paradigmatic legislative responsibilities), while also exercising authority over land-use and contracting decisions (standard executive powers). Charter Making, 42 N.Y.L. SCH. L. REV. 723 at 767; see also 1986-1988 REPORT at 14 (noting the Board’s various powers). Due to “the inclusiveness of its powers,” the Board of Estimate “occupie[d] the center of gravity in the city’s political process.” WALLACE S. SAYRE & HERBERT KAUFMAN, GOVERNING NEW YORK CITY: POLITICS IN THE METROPOLIS 626-27 (W.W. Norton & Co. 1965) (hereinafter GOVERNING NEW YORK CITY). 12 Reflective of—and contributing to—its power in the City, the Board of Estimate consisted of the City’s most powerful executive and legislative officials: the Mayor, the comptroller, the City Council president, and the presidents of the five boroughs. Charter Making, 42 N.Y.L. SCH. L. REV. 723 at 766. The Mayor, comptroller, and City Council president each received two votes on all decisions, while the borough presidents each received only one vote. Id. In large part due to its unification of the eight “most influential elected officials in the city government,” the Board of Estimate, unlike any other agency, was able to “steadily acquir[e] more formal power [and] regularly enhanc[e] its informal powers, increasingly fulfilling its own expectations as an institution.” GOVERNING NEW YORK CITY at 627. This arrogation of power was “achieved most clearly at the expense of … the [City] Council,” whose functions the Board of Estimate had “swallowed up.” Id. at 627, 649. Over time, the result of the Board’s accumulation of power was that, contrary to the City Charter, “New York City ha[d] no [] legislative institution” and instead had “a caucus of officials, acting ex officio as members of the Board of Estimate.” Id. at 650. 2. This paradigm was upended in 1986, when a federal district court declared the Board of Estimate unconstitutional. Morris v. Bd. of Estimate, 647 F. Supp. 1463 (E.D.N.Y. 1986). This decision was not made on separation-of-powers grounds; rather, the court held that the Board of Estimate violated the Equal 13 Protection Clause’s “one person, one vote” principle, because all five borough presidents received an equal vote in Board of Estimate decisions, regardless of the size of the population each president represented. The significance of the district court’s decision is difficult to overstate. Given the Board of Estimate’s central role in New York City’s governance, its newly established invalidity meant that changes needed to be made immediately. Although the City appealed the district court’s decision, officials recognized that “there was a substantial chance the defense would fail.” Charter Making, 42 N.Y.L. SCH. L. REV. at 736. As a consequence, within one month of the district court’s decision, Mayor Ed Koch appointed the first of two Charter Revision Commissions to determine how the City would respond. Id. Amicus served as counsel and executive director to both of those Commissions. The first commission—known as the Ravitch Commission (after its chair, Richard Ravitch)—quickly got to work assessing how to respond to the district court’s decision, which was soon affirmed by the Second Circuit. Morris v. Bd. of Estimate, 831 F.2d 384 (2d Cir. 1987), opinion corrected, 842 F.2d 23 (2d Cir. 1987). But these efforts were interrupted by the Supreme Court’s unexpected decision to grant review of the case. See Bd. of Estimate of City of N.Y. v. Morris, 485 U.S. 986 (1988). Because the Ravitch Commission was required by law to disband before the Supreme Court would issue its decision, see N.Y. MUN. HOME 14 RULE § 36(5)(b), Mayor Koch appointed a second Charter Revision Commission in 1989, this time chaired by Frederick A.O. Schwarz, Jr. (“the Schwarz Commission”), to pick up where the Ravitch Commission left off. Charter Making, 42 N.Y.L. SCH. L. REV. at 737. The Ravitch Commission accordingly decided to refrain from making any decision as to the future of the Board of Estimate, instead leaving this task for the Schwarz Commission to handle after the Supreme Court issued its decision.1 3. Soon after the Schwarz Commission convened, the Supreme Court affirmed the Second Circuit’s decision, thus confirming once and for all the Board’s invalidity. Bd. of Estimate of City of N.Y. v. Morris, 489 U.S. 688 (1989). The Commission thus faced an immediately pressing question: should the Board of Estimate be reconstituted in a manner consistent with the Equal Protection Clause, or abandoned altogether? Because the Supreme Court invalidated the Board of Estimate based only on its voting structure, it was conceivable that the Commission could simply retool the Board’s voting structure to cure the representational problems, without necessarily altering the Board’s unique combination of legislative and executive authority. Charter Making, 42 N.Y.L. SCH. L. REV. at 765-66. 1 The Ravitch Commission instead focused its efforts on crafting more discrete revisions to the City’s charter. One of these revisions was the addition of the CAPA, discussed supra at I.A.3. The Ravitch Commission’s proposed revisions—including the addition of CAPA—were ratified by voters in 1989. See 1986-1988 REPORT at 11. 15 Ultimately, the Commission decided that “the Board of Estimate had flaws beyond its representational illegality.” Charter Making, 42 N.Y.L. SCH. L. REV. at 771; see also FINAL REPORT OF THE N.Y.C. CHARTER REVISION COMM’N, JAN. 1989 - NOV. 1989, at 8 (1990) (hereinafter 1989 REPORT) (reporting that “members of the Commission and various witnesses raised policy questions about the governmental value of the Board of Estimate”). Chief among these problems was that the Board of Estimate, by wielding legislative authority, “threw a stunting shadow across the City’s legislative branch—the City Council.” Charter Making, 42 N.Y.L. SCH. L. REV. at 771; see also id. at 781 (“Among the reasons for the historic weakness of the Council was the presence and prestige of the Board [of Estimate], with its jurisdiction over items that normally would be legislative.”). This, in turn, represented a threat to the separation of powers in New York City: by so weakening the City Council, the Board of Estimate “impeded the healthy development of countervailing power to the mayoralty.” Id. at 771-72. The Commission thus came to the conclusion that eliminating the Board of Estimate was an essential step in restoring democratic self-government and a functional system of checks and balances in New York City’s government. Once the Commission made this threshold decision not to revive the Board of Estimate, it became clear that it would need “to examine the City government’s structure and all of its decision-making processes.” Id. at 775. In doing so, the 16 Commission established as one of its guiding principles the need to “[b]alance power” between the City’s legislative and executive branches, which had long been melded in the Board of Estimate. 1989 REPORT at 4. This principle became especially important without the Board of Estimate, as the Commission recognized that only the City Council could serve as an effective check on the significant power afforded to the Mayor. “Balancing and checking power would be particularly important in a world without a Board of Estimate and in a City without a flourishing two-party system.” Charter Making, 42 N.Y.L. SCH. L. REV. at 752. 4. With these considerations in mind, the Schwarz Commission decided that merely eliminating the Board of Estimate would not solve the structural problems in the City’s government—rather, it was necessary to “ma[k]e the City Council the sole legislative body of the City.” Id. at 828. Except for the decision not to resurrect the Board of Estimate, this decision to “empower and expand the [City] Council” was the Schwarz Commission’s most significant contribution to City governance. Id. at 776. Restoring the Council’s authority was an essential step in strengthening the City’s separation of powers: “For a legislature to balance and check the executive branch is the American norm. For all the messiness of legislatures, for all the criticism of them, the basic concept is readily understood and reasonably accepted…. To accommodate this, [the Commission] needed to focus on the legislative branch of City government.” Id. at 777. In short, the 1989 17 Charter reaffirmed the City Council’s role as the City’s “local lawmaking body.” 1989 REPORT at 16. The Schwarz Commission’s revisions, which were ratified by the people of New York City in November 1989, “eliminated the Board of Estimate” and “shifted all of its legislative powers to an enlarged City Council.” 1989 REPORT at 1 (emphasis added). Coupled with the comprehensive administrative-procedure reform the Ravitch Commission had successfully proposed a year earlier, the New York City voters reaffirmed their desire to eliminate governing bodies holding both legislative and executive authority and to maintain a clear and consistent separation of the legislative and the executive power in the City government. III. Because The Board Of Health Is An Administrative Agency Within The Executive Branch, It Does Not Have Unconstrained Law-Making Authority. The foregoing points lead inexorably to one conclusion in this case: the Board of Health is an administrative agency that can only exercise limited, delegated authority and is therefore subject to the same separation-of-powers principles as any other agency. See Boreali, 71 N.Y.2d at 1. Defendants’ contention that the Board actually wields “legislative authority,” Defs.’ Reply Br. at 4, cannot be reconciled with the separation of powers that is embodied in the City Charter and confirmed by the recent reforms aimed at ensuring that only the City Council can exercise the legislative power. 18 A. The Board Of Health Is An Executive-Branch Administrative Agency. The Board of Health is—and has been for virtually its entire history—an administrative agency situated within the City’s executive branch. It is not by any measure equivalent to the Board of Estimate, exercising both executive and legislative powers. This is evident from the text of the City Charter itself, which assigns the Board to the Department of Health and Mental Hygiene, an executive- branch department. N.Y.C. CHARTER § 553(a). The Board’s members—the Department commissioner, the chairperson of the Mental Hygiene Advisory Board, and nine other members—are all appointed to six-year terms by the Mayor. Id. §§ 551(a), 553(b). And only the Mayor has the authority to remove those officials prior to the end of their appointed term. Id. § 554. The Board’s role as an executive-branch agency is nothing new: it has been this way almost since its inception. The Board came into existence in 1866, when the State legislature created the Metropolitan Board of Health. 1866 N.Y. Laws, Ch. 74, §§ 1-33. This entity was charged with “the greater protection and security of health and life” within the “Metropolitan police district of the State of New York” (an area around the modern New York City). Id. §§ 1, 2, 12. And although the State initially retained supervisory authority over the Metropolitan Board, this State oversight only lasted four years. Id. §§ 2, 4, 9. In 1870, the State legislature enacted amendments to the New York City Charter that placed the Board under the 19 authority of the City’s executive branch. See 1870 N.Y. Laws, Ch. 137, §§ 29-30, 90. Like the present-day Charter, the 1870 version established the Board as the head of the Health Department (the predecessor to today’s Department of Health and Mental Hygiene), id. § 90, with members—the City’s police commissioners, the health officer of the port, and four additional officers—who were all appointed by the Mayor and subject to his removal, id. §§ 29, 30, 43, 90.2 And the Health Department was required to report directly to the Mayor, “furnish[ing] to him such information as he may demand within such time as he may direct.” Id. § 31. No amendments since 1870 have altered these fundamental characteristics of the Board. Notably, the City did not alter the Board’s place within the separation of powers when it gained the authority to structure its own affairs after the State’s adoption of home rule in 1923. See N.Y. CONST. art. XII, §§ 2-3 (amended 1923) (allowing for increased local governance). Instead, the City maintained the Board’s identity as an executive-branch agency. See e.g., PRELIMINARY REPORT AND DRAFT OF PROPOSED CHARTER FOR THE CITY OF NEW YORK, §§ 551, 553 (1936) (hereinafter 1936 REPORT) (maintaining Board as administrative agency within Department of Health, with commissioner and members appointed by the 2 The 1870 Charter also repealed the Governor’s authority to remove such officers. See id. § 29 (“Any provision of law giving to the Governor power to remove any officer of the city government referenced to in this act is hereby repealed.” (emphasis added)). 20 Mayor). And to this day, the foundational provisions relating to the Board’s authority as an executive-branch agency remain unchanged. Like any other administrative agency, the Board is subject to the requirements of CAPA. The Board undeniably fits CAPA’s definition of an “agency,” as its members are mayoral appointees. N.Y.C. CHARTER § 553. Accordingly, the Board must comply with CAPA’s “defined and standardized” procedures for the adoption of new regulations. SUMMARY OF FINAL PROPOSALS OF THE N.Y.C. CHARTER REVISION COMM’N, at 9 (1988) (explaining that city agencies “must notify the public, conduct public hearings, and publish the rule before it becomes effective”). The Board has never disputed this—to the contrary, it has always recognized that it is bound by CAPA’s notice-and-comment procedures in promulgating additions or amendments to the Health Code. In 2013, for instance, the Board promulgated 13 rules, adhering to CAPA every time. See N.Y.C. Dep’t of Health & Mental Hygiene, 2013 Notices of Adoption, available at http://goo.gl/20VV99. By contrast, amicus is not aware of a single instance in which the Board has disregarded CAPA’s requirements in enacting a regulation. Moreover, in compliance with CAPA, the Board of Health’s amendments to the Health Code—like any other agency rules—are published within the Rules of the City of New York. See R.C.N.Y., tit. 24. These rules include the soda ban presently at issue. R.C.N.Y. tit. 24, § 81.53. 21 In short, the Board of Health is an administrative agency that is situated within the City’s executive branch, answers to the Mayor, and complies with CAPA in promulgating its regulations. The Board’s identity as an executive- branch administrative agency is undeniable. B. The Board Can Only Exercise Delegated Rule-Making Authority, Not Legislative Authority. As an administrative agency, the Board “is clothed with those powers expressly conferred by its authorizing statute”—here, the Charter itself. Campagna, 73 N.Y.2d at 242. The Charter authorizes the Board to “add to and alter, amend or repeal any part of the health code,” “embrac[ing] ... all matters and subjects to which the power and authority of the department extends.” N.Y.C. CHARTER § 558(b), (c).3 And the Department’s authority extends to “all matters affecting health” in the City of New York, including a long list of enumerated considerations. Id. § 556. These provisions set the outer bounds of the Board’s authority. See supra at I.B. And the fact that the Charter “vested … the legislative 3 The Board is also authorized to “confer additional powers on the [D]epartment [of Health and Mental Hygiene] not inconsistent with the constitution, laws of this state or this charter.” N.Y.C. CHARTER § 558(b). As this Court has recognized, the “not inconsistent with” language applies only to the Board’s authority to increase the Department’s power; it does not modify the Board’s authority to amend the Health Code. In re Bakers Mut. Ins. Co. of N.Y., 301 N.Y. 21, 26 (1950). Amici Wilfredo Lopez and Andrew Goldberg thus err in suggesting that the Board’s amendments to the Health Code must only be consistent with state law but “not necessarily” with Local Laws enacted by the City Council. Lopez Amicus Br. at 12. Indeed, any attempt by the Board at enacting regulations inconsistent with Local Laws would infringe upon the legislative power that the Charter vests exclusively in the City Council. N.Y.C. CHARTER § 21. 22 power of the city” in the City Council, N.Y.C. CHARTER § 21 (emphasis added), eliminates the possibility that the Charter delegated any such power to the Board. Defendants nevertheless contend that because the Board’s delegated authority is crafted in broad terms, its authority to enact the soda ban cannot be questioned. See Defs. Reply Br. at 26-28. But this turns the idea of delegated authority on its head: the fact that the Board has been granted power to regulate in the area of public health means that it must adhere to the terms of that delegation, and cannot exercise unlimited power. “Even under the broadest and most open- ended of statutory mandates, an administrative agency may not use its authority as a license to correct whatever societal evils it perceives.” Boreali, 71 N.Y.2d at 9. This Court has confronted many agencies with purportedly “broad” delegations of authority, but has always assessed the specific enactment at issue to determine whether the agency had nonetheless exceeded that authority.4 And as Boreali itself shows, even agencies acting under “broad grant[s] of authority” can exceed that authority, thereby violating the separation of powers. Id. Even more to the point, this Court has never held that an administrative agency acting pursuant to a delegation of authority—broad or not—could simply 4 See, e.g., Serio, 100 N.Y.2d at 864 (noting the Superintendent of Insurance’s “broad grant of regulatory power,” and applying Boreali); Rent Stabilization Ass’n, 83 N.Y.2d at 168 (noting the Division of Housing and Community Renewal’s “broad mandate to promulgate regulations in furtherance of the rent control and rent stabilization laws,” and applying Boreali); N.Y. State Health Facilities Ass’n, Inc. v. Axelrod, 77 N.Y.2d 340, 347 (1991) (noting the Public Health Council’s “broad” authority to enact regulations, and applying Boreali). 23 act in whatever manner it saw fit. And for good reason: such a holding would be irreconcilable with the separation-of-powers doctrine. Where an agency is specifically delegated authority, any action it takes beyond that delegation unlawfully usurps legislative power that the Charter vests solely in the City Council. See, e.g., Med. Soc’y of State v. Serio, 100 N.Y.2d 854, 864 (2003) (“[T]he legislative branch may not constitutionally cede its fundamental policymaking responsibility to a regulatory agency.”); Boreali, 71 N.Y.2d at 10 (“Because of the constitutional provision that [t]he legislative power of this State shall be vested in the Senate and the Assembly, the Legislature cannot pass on its law-making functions to other bodies ….”). Defendants’ boundless interpretation of the Charter’s delegation of authority to the Board upends this foundational separation-of-powers principle by essentially creating two legislatures in the realm of public health—the City Council and the Board of Health. Defendants acknowledge this by alluding to the possibility that the Board and the City Council could issue conflicting enactments on a matter of public health. See Defs. Reply Br. at 23. But Defendants offer not the slightest suggestion for how the courts should go about resolving this conflict. There is no basis—and no need—for the Court to accept an interpretation of the Charter that inevitably leads to an irreconcilable conflict between the City Council and the Board. Instead, this Court need only adhere to normal separation- 24 of-powers principles in determining whether the Board’s adoption of the soda ban is within the scope of its delegated authority.5 The purported breadth of the Board’s authority “does not mean … that the regulations at issue here should be deemed valid without further analysis.” Boreali, 71 N.Y.2d at 11. C. Defendants’ Position Is Contrary To The Structural Reforms Adopted To Ensure That Only The City Council Wields Legislative Authority. As explained above, traditional separation-of-powers principles doom Defendants’ claim that the Board exercises legislative authority. And this conclusion is only bolstered by the Ravitch and Schwarz Commissions’ reforms of the City Charter. Defendants have not even attempted to explain how their position could possibly be reconciled with the overhaul effectuated by those Commissions—nor could they. The Ravitch Commission’s adoption of CAPA 5 Defendants rely on a number of decades-old cases to support their claim that the Board has “legislative” authority. However, those decisions merely describe the Board’s delegated authority to promulgate regulations, which is, in a sense, akin to legislative activity. But none of those authorities stand for the proposition that the Board wields authority to act as a legislature. See, e.g., Grossman v. Baumgartner, 17 N.Y.2d 345, 349-50 (1966) (assessing a Board regulation under the standard for reviewing agency action, asking whether “the Board of Health acted arbitrarily or capriciously or” enacted an “unreasonable” regulation); Metropolitan Bd. of Health v. Heister, 37 N.Y. 661, 672 (1868) (“The power to be exercised by this board upon the subjects in question … falls more properly under the head of an administrative duty.”). Indeed, in People v. Blanchard, the decision that Defendants principally emphasize, this Court specifically relied on the distinction between delegated rule-making authority and the legislative power in concluding that the Board of Health had no authority to define criminal offenses—a paradigmatic “legislative” action: “It is true that the substantive law-making power of the People is vested by the Constitution in the Legislature and cannot be delegated. It is also true that the definition of criminal offenses and the prescription of punishment therefor is part of that legislative power…. But there has been no infringement of these standards [by the Board] in this instance.” 288 N.Y. 145, 147-48 (1942). This Court has never held that the Board possesses legislative power unconstrained by any delegation. 25 established a set of rules for administrative agencies that is entirely distinct from the rules the City Council adheres to in exercising its undeniably legislative powers. And the Schwarz Commission’s subsequent efforts had as their cornerstone the vesting of all legislative authority exclusively in the City Council, precisely to avoid repeating a situation in which an organ of the City government would exercise both legislative and executive authority (as the Board of Estimate had done before it was eliminated). These reforms leave no room for Defendants’ argument that the Board of Health, alone among all entities within the City’s government, somehow exercises legislative authority that is not subject to the normal rules for judicial review of agency rule-making. The Commission never even considered making an exception for the Board of Health, and such an exception would be flatly inconsistent with the Commission’s unequivocal decision not to resurrect the one body that had exercised both legislative and executive power (the Board of Estimate). Because Defendants’ position would give the Board powers that no other agency possesses—at the expense of the City Council—it is impossible to reconcile with the Schwarz Commission’s structural reforms. CONCLUSION Defendants ask this Court to treat the Board differently from any other administrative agency in the City government. That position is inconsistent with the City Charter's separation of powers and with the structural reforms undertaken to ensure that only the City Council wields legislative authority. Defendants thus cannot shield the Board from the question that this Court always asks when confronted with agency actions that are allegedly beyond the scope of their delegated authority: can that delegation "be construed to encompass the policy- making activity at issue here without running afoul of the constitutional separation of powers doctrine"? Boreali, 71 N.Y.2d at 14. The Court should analyze the Board's enactment of the soda ban under this well-established standard. Dated: April25, 2014 New York, New York Respectfully submitted, Noel J. Francisco Ryan D. Newman William D. Coglianese Sarah A. Hunger Matthew R. McGuire JONES DAY 51 Louisiana A venue NW Washington, DC 20001 Tel.: (202) 879-3939 Fax: (202) 626-1700 ajdick@jonesday .com Counsel for Amicus Curiae Dean Eric Lane 26