New York’s Top Court Just Narrowed the Case That Spelled Doom for Bloomberg’s Soda Ban

While the United States Supreme Court seeks to restrict the government’s ability to regulate, the New York Court of Appeals is broadening it.

Sam Mellins   ·   November 28, 2023
Chief Judge Rowan Wilson sits on the Court of Appeals bench.
The investiture of Court of Appeals Chief Judge Rowan Wilson on September 12, 2023. | Darren McGee / Office of Governor Kathy Hochul

A decision from New York’s top court last month weakens one of the most powerful tools used to fight state regulations on topics from promoting vaccines to discouraging tobacco and soda consumption.

In a case known as Matter of Stevens, the Court of Appeals ruled that in limited circumstances, law enforcement can search a DNA database to investigate a crime if they get permission from the state Commission on Forensic Services. Though prosecutors cheered the ruling and civil rights groups criticized it, its direct impact is likely limited, as the database is only used a handful of times a year.

But the reasoning upon which the ruling relied could have a much greater impact. The decision by the court’s new chief judge, Rowan Wilson, narrows the scope of a landmark Court of Appeals ruling under which judges have overturned state regulations for nearly 40 years.

In that case, known as Boreali, the Court of Appeals overturned a 1986 state regulation that banned smoking in many public places, including schools and hospitals. The state Public Health Committee had overstepped its authority by implementing the ban without a law explicitly allowing it to do so, the court ruled. Legislative attempts to enact a similar smoking ban had failed, the majority opinion noted, and the Public Health Committee had weighed economic factors, rather than health alone, in structuring the ban.

The ruling created a unique method to challenge government actions and regulations that remained in use until today.

“The ‘sword of Boreali’ as we called it, has hung over the NYC Board of Health,” Mary Bassett, a former commissioner of both the city and state health departments, told New York Focus in an email. “It was a damaging ruling, tying the hands of the BoH regarding more robust actions that protect health.”

In 2014, Boreali was used to strike down former Mayor Michael Bloomberg’s “soda ban,” an intensely controversial regulation limiting soda sizes to 16 ounces. Two years later, a state appeals court used it to strike down another regulation that required toddlers attending city-regulated daycares and preschools to get flu shots. Though the Court of Appeals eventually overturned the latter ruling, finding that the city had acted within its powers, New York City was forced to spend years defending the measure in court.

Boreali has also been used in attempts to overturn rules beyond public health, such as a regulation meant to ensure that sellers of life insurance policies act in their customers’ best interest. That attempt was ultimately rejected by the Court of Appeals.

“The ‘sword of Boreali’ as we called it, has hung over the NYC Board of Health.”

—Mary Bassett, former health commissioner

“Anytime we have a client who wants to look at challenging some agency decision for one reason or another, we always look at Boreali,” said Robert Rosborough, an attorney who argues cases before the Court of Appeals and authors a blog focused on its rulings. “Boreali has for years provided a basis to say to agencies, ‘You’re stepping beyond the bounds of what the legislature has allowed you to do.’”

Rolling Boreali back has been a goal of Wilson’s for years. In a 2018 dissent, he noted that no other state had a similar test — “and for good reason: it is unhelpful.” If Boreali was not to be eliminated entirely, he wrote, “We should make sure its cage is small.”

His ruling last month sought to achieve that goal. He noted that the original Boreali decision focused on a law that had granted the Public Health Committee “exceedingly broad” authority to “deal with any matters” affecting public health, which could include just about any human activity. The courts wanted to place a limit somewhere, and so overturned the smoking ban.

The law at issue in Matter of Stevens, on the other hand, was fairly narrow: It permitted the state’s Commission on Forensic Searches to write regulations related to DNA searches. Since there was no broad grant of power, Boreali didn’t apply and couldn’t be used to overturn the regulations, Wilson wrote.

That logic could make it difficult to use Boreali against regulations that aren’t based on similar wide-ranging grants of authority, which are rare in New York law.

But the impact of Wilson’s ruling will depend on the courts’ view of what qualifies as a broad grant of authority.

“Until someone in the courts tells us what it actually means, we’re only guessing,” Rosborough said.

Amit Vora, a lawyer at the firm Kasowitz Benson Torres and an expert in appeals, noted that even if courts don’t cite Boreali as often as they used to, they could still rely on its underlying logic. “In other words, Boreali might not be as dead as it seems,” he said.

Some observers see Wilson’s ruling as a sign that the Court of Appeals is working as a counterweight to the conservative supermajority on the US Supreme Court, as Governor Kathy Hochul said it should last year.

In recent years, the Supreme Court has used a novel legal theory known as the “major questions doctrine” to limit federal agencies’ abilities to make regulations. Critics of the trend charge that the doctrine gives the Supreme Court a veto over any regulation that it doesn’t like.

Thanks to Boreali, New York courts have had a similar ability for decades. While the Supreme Court strips federal regulators of their powers, Wilson’s opinion could restore them to New York regulators.

“The Supreme Court has a lot of distrust of government agencies,” said Sam Feldman, a public defender who has argued before the Court of Appeals. “The New York Court of Appeals here is going in the opposite direction.”

Sam Mellins is senior reporter at New York Focus, which he has been a part of since launch day. His reporting has also appeared in The San Francisco Chronicle, The Intercept, THE CITY, and The Nation. 
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