Court of Appeals June Session: Arguments of Interest for June 6, 2018

It’s the second to last day of arguments at the Court of Appeals before the two month summer recess, and the Court has four cases on the docket (the Court’s case summaries can be found here). The Court will hear arguments on the following issues: (1) whether a criminal defendant’s guilty plea should be thrown out because the trial court never explained to him the  consequences of waiving indictment by grand jury; (2) whether the New York City Board of Health’s regulations requiring all kids in certain child care, pre-K, and kindergarten programs to get the flu vaccine exceeded the scope of the Board’s authority; (3) in fraud claims relating to failed residential mortgage backed securities, whether an insurer of the securities was required to show justifiable reliance and losses directly attributable to the fraudulent representations; and (4) whether statements made to FDA investigators during an investigation are protected by an absolute privilege from liability for defamation.

No. 64     Garcia v New York City Department of Health and Mental Hygiene

When you send your kids to day care, pre-K, or kindergarten, you know that they will get sick and bring home plenty of germs. You just hope those germs aren’t the flu. That would be a win.

To try to ensure that all kids in those programs won’t send home the flu, the New York City Board of Heath issued amendments to the New York City Health Code  to require that all children from 6 months to 5 years who attend child care and school-based programs under the jurisdiction of the City Department of Health and Mental Hygiene (DHMH) be vaccinated against the flu each year. Although there are exemptions for when a vaccine would be harmful to the child’s health and for parents’ religious convictions, and the programs can accept unvaccinated kids, the amendments require the programs to pay a stiff penalty per child for doing so.

Upon adoption of the amendments, a group of parents challenged the Board’s authority to adopt them and sought a permanent injunction against their enforcement. Supreme Court held that the Board had acted outside the lawful bounds of its power because the amendments were preempted by the Public Health Law, and enjoined application of the flu vaccine regulations.

The Appellate Division, First Department affirmed, albeit on different grounds.  The Court held that the amendments weren’t preempted because local governments may adopt stricter health standards than the state baseline. But, the Court held, under the factors set forth in the Court of Appeals’ decision in Boreali v Axelrod (71 NY2d 1 [1987]), the amendments exceeded the scope of the Board’s regulatory authority. The Court held that the amendments represent value judgments and exceptions not grounded in public health concerns because the rule doesn’t preclude unvaccinated children from attending the school programs. Instead, those children can still attend the programs if the schools simply pay a monetary fine. This doesn’t protect the public health, the Court held, and it was further evidence that the amendments went beyond the lawful bounds of the Board’s regulatory authority.

The Board and DHMH now ask the Court of Appeals to reverse the First Department’s order, and reinstate the amendments. They argue that the First Department impermissibly intruded on their discretionary authority to promulgate vaccine regulations. Now, the Court of Appeals will decide.

The Appellate Division, First Department’s order can be found here.

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