Pennsylvania Judge Rules Senator Cruz Is Eligible To Be President

—by Philip A. Perez

Elliott v. Cruz, 134 A.3d 51 (Pa. 2016).

Abstract:

On March 10, 2016, Senior Judge Dan Pellegrini authored an opinion for the Commonwealth Court of Pennsylvania that decided the Constitutional issue on the merits of whether Senator Ted Cruz, born in Canada, is eligible to hold the Office of President. Judge Pellegrini held that a “natural born citizen” includes “any person who is a United States citizen from birth,” and concluded that Senator Cruz is eligible to be President. The memorandum opinion is twenty-two pages and relies heavily on the research and conclusions of legal scholars published in law review articles and in a Congressional Research Service (“CRS”) report. The Pennsylvania Supreme Court affirmed the court’s opinion on March 31, 2016. A copy of the opinion is available here.

***

The Commonwealth Court’s opinion is the first to address this issue on the merits. The attorney for the petitioner stated his client intends to appeal the decision to the U.S. Supreme Court, which will give the Court the opportunity to decide this lingering constitutional question. The following analysis focuses on the lower court’s opinion on the merits.

 

Procedural History

Carmon Elliot (“petitioner”), a Pennsylvania resident and registered Republican, petitioned the Commonwealth Court of Pennsylvania to set aside Senator Ted Cruz’s (“respondent”) petition to appear on the Pennsylvania primary election ballots for the Office of President.

 

Facts

The parties agreed to stipulated facts. Among them, that respondent was born in Calgary, Alberta, Canada, that his mother was born in the State of Delaware, that his mother is and has always been a U.S. citizen, and that his mother had been physically present in the U.S. “for more than ten years of her life, including at least five years after she reached the age of fourteen,” and that Senator Cruz was a citizen from the moment of his birth.

It is worth mentioning that the opinion does not identify the requirements provided by Congress for whether a person is eligible to be a U.S. citizen by birth. However, under Section 301 of the Immigration and Nationality Act, a child born outside of the United States or its territories is considered a U.S. citizen if, inter alia, his parents are married and one is a U.S. citizen who meets the applicable time requirement (which for Senator Cruz required that his mother was “physically present” in the U.S. for ten years, five of which must have been after her fourteenth birthday). Immigration and Nationality Act, 8 U.S.C. § 1401 (2012).

 

Issues

 

Political Question Doctrine

The court first addressed the respondent’s claim that the issue is a political question for which the court does not have jurisdiction. Respondent argued that the question of whether a candidate is eligible for the Office of President is an issue for Congress or the Electoral College. The court found that the determination of whether a candidate is eligible to hold the Office of President is not textually committed to Congress or the Electoral College.

In support of its finding, the court looked to Article II, Section 1, clauses 2 and 3 and the Twelfth Amendment of the U.S. Constitution, and found that these provisions reaffirmed Congress’ role in “counting the ballots” but that neither “evidences a textually demonstrable constitutional commitment of the issue of Presidential eligibility to Congress.” The court also found that the Constitution does not give the Electoral College the power to determine whether a candidate is eligible since it only directs the members to select a candidate and transmit their votes.

The court held that the issue is justiciable, and found there was not a lack of judicially discoverable and manageable standards. The court pointed to other instances where U.S. courts decided issues regarding citizenship in other contexts, including issues regarding “natural born citizen[s].” Specifically, the court noted the Supreme Court’s finding in Hall v. Florida, that “No natural born citizen may be denaturalized,” could “never be applied” if the issue were not justiciable.

 

Meaning of “Natural Born Citizen” in Article II, Section 1, clause 4 of U.S. Constitution

 

Article II, Section 1, clause 4 of the U.S. Constitution provides that “[n]o Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President[.]”

The court noted that the term “natural born citizen” is not defined in the Constitution, and that the Supreme Court has never defined its meaning with regard to the eligibility of a presidential candidate.

The petitioner argued for Jus soli citizenship—meaning citizenship vests in a person “based on the geographic location of his or her birth, regardless of the parents’ citizenship status.” The respondent argued for Jus sanguinis citizenship—meaning citizenship vests in a person based on his ancestry. Specifically, respondent argued that a person is a natural born citizen if at least one of his parents is a United States citizen, regardless of whether the person was born in the United States or one of its territories.

The court acknowledged the importance of this question and gave examples of past presidential candidates who had their eligibility challenged. The candidates noted by the court included Charles Evan Hughes, born in the U.S. to non-citizen parents, Senator John McCain, born on a U.S. military base in the Panama Canal Zone to a U.S. citizen parent, Governor George Romney, born in Mexico to U.S. citizen parents, and President Barack Obama, born in the U.S. but his father was not a U.S. citizen.

The court then looked to articles by legal scholars and a CRS report published in 2016 for consensus and insight on the issue. First, the court cited an article by Charles Gordon published in 1968.[1] The court provides an excerpt of Gordon’s conclusion from the article: (1) “[N]atural-born” should be considered in light of the English usage at the time of the founding, and English statutes “accorded full status as natural-born subjects to persons born abroad to British subjects;” (2) The Framer’s intent was likely to exclude American citizens who acquired citizenship through naturalization; and (3) The Fourteenth Amendment and the Naturalization Act of 1790 did not limit or define the presidential qualification clause, nor bar the understanding that the clause includes children born abroad to American parents.

Second, the Court provides an excerpt from a report by the CRS that analyzes the historical and legal background of the issue.[2] The report concludes that the term “natural born” likely means a person who is entitled to U.S. citizenship by birth:

The weight of legal and historical authority indicates that the term “natural born” citizen would mean a person who is entitled to U.S. citizenship “by birth” or “at birth,” either by being born “in” the United States and under its jurisdiction, even those born to alien parents; by being born abroad to U.S. citizen-parents; or by being born in other situations meeting legal requirements for U.S. citizenship “at birth.” Such term, however, would not include a person who was not a U.S. citizen by birth or at birth, and who was thus born an “alien” required to go through the legal process of “naturalization” to become a U.S. citizen.

Third, the court provides an excerpt from an article by Paul Clement and Neal Katyal published in 2015.[3] The authors conclude that “a U.S. citizen at birth is a natural born citizen and constitutionally eligible to serve as President.” The authors found that the term meant someone who is a U.S. citizen at birth “with no need to go through a naturalization proceeding at a some later time.”

Clement and Katyal note that Congress has always taken the position that a child born abroad to a U.S. citizen parent generally becomes a U.S. citizen, subject to residency requirements on the parents. The authors note that British laws in place for the American colonies explicitly used the term “natural born” to include children born outside of the British Empire to British subjects, and that the Framers would have been familiar with the statutes and the way the term “natural born” was used. The authors then explain how the term has been used and defined in the Immigration and Naturalization Acts passed throughout U.S. history.

Clement and Katyal point to two sources that suggest the purpose of the “natural born” provision was to ensure that a “foreigner” could not be elected to the position of Commander in Chief.[4] The authors recognize Senator Cruz’s birthplace and conclude that “there is no question that Senator Cruz has been a citizen from birth and is thus a ‘natural born Citizen’ within the meaning of the Constitution.”

At the end of the opinion, the court acknowledged that there is not a consensus on the issue, and that some legal scholars contend that a presidential candidate must be born in the United States. However, the court found that the Jus soli position is a minority view and held “consistent with the common law precedent and statutory history, that a ‘natural born citizen’ includes any person who is a United States citizen from birth.”

The court found that Senator Cruz is eligible to run for President because he was a U.S. citizen from birth, and it denied the petition in this case.

 

[1]              Charles Gordon, Who Can Be President of the United States: the Unresolved Enigma, 28 Md. L. Rev. 1 (1968).

 

[2]              See Jack Maskell, Cong. Research Serv., R42097, Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement (2011).

 

[3]              Paul Clement & Neal Katyal, On the Meaning of “Natural Born Citizen,” 128 Harv. L. Rev. 161 (2015).

 

[4]              Letter from John Jay to George Washington (July 25, 1787), in 3 The Records of the Federal Convention of 1787; 3 Joseph Story, Commentaries on the Constitution of the United States § 1473, at 333 (1833).

 

In Jail? Be Careful What You Say on the Phone, It May be Used Against You in Court

—by D.J. Nugent

People v. Johnson, No. 37, 2016 N.Y. LEXIS 752 (N.Y. Apr. 5, 2016).

Abstract:

The Court of Appeals upheld a New York City regulation that permits prisons, such as Rikers Island, to monitor and record inmates’ non-privileged conversations. Furthermore, the Court held that upon request of the District Attorney’s Office, the prison may turn over any recording for use at trial.

***

Facts

Marcellus Johnson (“defendant”) was arrested for robbery and could not make bail, thus being held at Rikers Island (“Rikers”). While at Rikers, defendant made multiple telephone calls to his friends and family. In these calls defendant made incriminating statements and used vulgar language in reference to the victim and other individuals involved in the robbery. Pursuant to New York City Regulation, Title 40 RCNY § 1-10 (“regulation”), the Rikers administration listened to and monitored these calls.

The regulation provided that prisoners may make telephone calls, that telephones shall be installed in the housing areas of prisons, that upon the implementation of appropriate procedures prisoners’ phone calls may be listened to when legally sufficient notice has been given to the prisoners, and that telephone calls to several classes of people, such as attorneys, shall not be monitored or listened to.[1] Rikers implemented appropriate procedures to record prisoners’ phone calls. These procedures stated that three notices would be provided to prisoners to inform them that their phone calls were being recorded and or monitored. One notice, written in English and Spanish, was posted near the telephones the prisoners use, one notice was set forth in the inmate handbook, and one notice was played at the beginning of each call that a prisoner made from Rikers.

Rikers stated that it only records calls on a “needs basis” which means when a situation “prompts” review, such as calls that involve institutional and public safety and security. New York City District Attorneys’ Offices may request a copy of the prisoner’s recorded call, and such requests are decided within three business days by Rikers Deputy Commissioner for Legal Matters, which has no criteria for deciding such requests. The New York City District Attorney’s Office acquired the recordings of the calls that defendant made, and sought to play excerpts of these conversations at trial.

 

Procedural History

Defendant filed a motion in limine to bar the prosecution’s use of the recordings arguing the disclosure was unauthorized and unwarranted under Rikers’s procedures, and that disclosure to the District Attorney’s Office undermined his Sixth Amendment right to counsel. The trial court denied this motion, and the prosecution was allowed to play excerpts of the recordings for the jury. The jury then convicted defendant of robbery, larceny, and possession of stolen property. On appeal the appellate division found the recordings admissible, although defendant’s right to an attorney had attached. The New York Court of Appeals granted leave to appeal.

 

Court’s Analysis and Reasoning

The defendant claimed that Rikers’s practice regarding prisoners’ phone calls violated his right to counsel, exceeded the scope of Rikers’s regulatory authority, and was conducted without defendant’s consent. The Court held the claims were either without merit or were unpreserved, and did not warrant reversal or a new trial.

 

  1. Sixth Amendment Violation

Defendant’s Sixth Amendment argument was that by recording his phone calls Rikers essentially acted as an agent for the prosecution in eliciting damaging statements from him. The Sixth Amendment prohibits the use of incriminating statements deliberately elicited from a defendant by government agents. The Court emphasized that a violation of a defendant’s Sixth Amendment right to counsel requires the involvement of the state in eliciting that evidence.

The Court stated that there was no evidence that Rikers elicited or encouraged defendant to conduct these telephone conversations, and that defendant was on notice that the phone calls were being recorded, therefore analogizing this situation to an informer who passively receives information from a defendant, which the Court has held does not constitute acting as an agent of the government. Furthermore, defendant argued that his unique situation, specifically his limited access to the outside world, left him without options other than to make statements out of necessity during phone calls that were detrimental to his defense. The Court held that however true this argument may be it does not establish that Rikers acted as an agent of the prosecution in defendant’s case.

 

  1. Rikers Acting Beyond the Scope of its Authority Provided in the Regulation

The Court held that regardless of whether the record supports defendant’s argument, he is not entitled to suppression or preclusion of the phone calls on those grounds. The Court stated that suppression of evidence is warranted when the violation of a statute implicates a constitutionally protected right. Furthermore, defendant failed to identify a statutory right violated by Rikers because the regulation does not prohibit Rikers’s recording of prisoners’ conversations with friends and family.

 

  1. Lack of Consent

 

The Court held that defendant’s lack of consent argument was not preserved because he failed to argue to the trial court that his consent could not be broader than the notice of monitoring that was provided to him.

 

Concurrence

Judge Pigott concurred with the majority’s analysis and holding, but wanted to bring further attention to the District Attorney’s Office’s direct and unregulated access to all of an inmate’s non-privileged telephone conversations. The judge acknowledged that Rikers had a legitimate interest in maintaining the safety and security of its detention center, but compared this to the possibility that District Attorneys’ Offices may abuse the regulation. Specifically, the judge focused on the fact that the prosecution regularly is allowed access to phone recordings from Rikers, and that people who are detained before trial have a better chance of being convicted because of the inequities that a detained defendant faces in preparing his/her case. Faced with these realizations, the judge believed that a defendant’s only choice was not to use prison phones, which was a result that the judge could not sanction.

[1] Title 40 RCNY § 1-10.

New York Court of Appeals Holds “Symptom Threshold” Methodology Is Inadmissible, But Cites “Odor Threshold” Methodology With Approval

—by David M. Katz

Sean R. v. BMW of N. Am., LLC, 48 N.E.3d 937 (N.Y. 2016).

Abstract:

The New York Court of Appeals recently decided that the basis for an expert opinion on the specific concentration of a chemical cannot be predicated solely on a person’s symptoms, but also noted that expert opinion that a chemical was present at the concentration of scent detection could be admissible.

***

On February 11, 2016, the New York Court of Appeals decided Sean R. v. BMW of N. Am., LLC, 48 N.E.3d 937 (N.Y. 2016).

The plaintiff was born with significant physical and mental birth defects.  The plaintiff alleged that his injuries were caused when his mother inhaled high concentrations of gasoline fumes while driving her 1989 BMW 525i during her first trimester of her pregnancy.  Both the plaintiff’s mother and grandmother stated that they could smell gasoline odors in the car.  Additionally, the plaintiff’s mother suffered from “headaches, dizziness and throat irritation” after driving in the car.  Further, the plaintiff’s mother and father stated that they could smell gasoline in their house when the car was parked in the garage.

Two causation experts opined on the nexus between the gasoline vapor exposure, the concentration of the gasoline during the exposure, and the plaintiff’s birth defects.  Using two separate methodologies, the plaintiff’s two causation experts came to the conclusion that the plaintiff’s mother inhaled gasoline at a concentration of 1,000 parts per million based solely on the symptoms exhibited during exposure to the gasoline fumes.

The defendants first filed motions for summary judgment, arguing that the plaintiff’s experts failed to lay a foundation for their opinions.  The trial court denied the motions.  The appellate division modified the order on other grounds.

The defendants then challenged the experts’ “symptom-threshold” methodology, arguing that using symptoms to determine a concentration of a chemical is not generally accepted within the scientific community.  The trial court precluded the plaintiff’s experts from testifying because symptom-threshold methodology was not generally accepted in the scientific community as a means of determining concentrations of chemicals.  On reargument, the court reaffirmed its prior decision.  The appellate division affirmed and granted a motion for leave to appeal to the Court of Appeals.

The plaintiff’s experts employed the symptom-threshold methodology.  Under the symptom-threshold methodology, an expert uses statements regarding odors and the symptoms that resulted to determine the concentration of chemicals that a person was exposed to.  The Court of Appeals began by noting that the plaintiff could not show any scientific literature employing the symptom-threshold methodology for causation purposes.  While the Court of Appeals noted that smelling chemicals and experiencing symptoms could be corroborative of a level of concentration, that evidence alone cannot “divine an otherwise unknown concentration of gasoline vapor.”  Thus, the court found that a symptom-threshold methodology, where symptoms are used to determine the concentration of a chemical, was not generally accepted in the scientific community.

The Court of Appeals distinguished the symptom-threshold methodology from other cases where experts employ the “odor threshold” methodology.  Similar to the methodology employed by the plaintiff’s experts, experts using the odor threshold methodology determine that a chemical concentration exists because the witness smelled a chemical.  However, unlike the plaintiff’s experts, experts employing the odor threshold methodology limit their opinion to the fact that the concentration was at least at the minimum concentration required for humans to smell the chemical.  The Court of Appeals noted that the odor threshold methodology is admissible because the level of detection is self-proving: if someone can smell a chemical, then it must be present at a certain minimum level.  As a result, the Court of Appeals, while rejecting the symptom-threshold methodology, also opened the door for the odor threshold methodology in toxic tort cases where the level of detection is equivalent to the level of toxicity.

Taxing the Human Body

—by Kelly Pare

Perez v. Comm’r, 144 T.C. No. 4 (2015)

Abstract:

Advances in modern medicine have brought new meaning to the idea of selling one’s body. Surrogacy arrangements, egg and sperm donations, and even black market kidney transactions are commonplace in today’s society. From a tax perspective, these types of commercial transactions are very interesting.

***

Perez v. Comm’r, a 2015 United States Tax Court case, seems to raise more questions than it answers about the tax treatment of income derived from egg donations.  Nichelle Perez contracted with Donor Source, a for-profit California company, to donate eggs. See Perez v. Comm’r, 144 T.C. No. 4 (2015). Nichelle received $20,000 in 2009 for the pain, suffering, time, and inconvenience that the egg donation caused her. Id. Donor Source sent Nichelle a 1099 in the amount of $20,000. Id. Instead of reporting this income on her tax return, Nichelle concluded that the money was excluded from gross income under section 104(a) of the Tax Code. I.R.C. 104(a) (2014) (excluding from gross income damages received on account of personal physical injuries or physical illness).

The tax court rejected Nichelle’s argument, reasoning that the payments, although in compensation for physical pain and suffering, arose out of a consensual contract between Nichelle and Donor Source and did not merit exclusion from gross income. See Perez v. Comm’r, 144 T.C. No. 4 (2015).  Consequently, Nichelle had to pay income tax on the money she received by Donor Source. The court was adamant in addressing only the particular issue and facts before it, and expressly stated what the case was not about.  The court refrained from deciding whether human eggs are capital assets, figuring out how to allocate basis in the human body, determining the holding period for human body parts, or deciding the character of the gain from the sale of human body parts. Id. at 9.

The decision in Perez is narrowly confined to the facts of the case and decided only the tax liability of the particular individual at issue.  Moreover, current law is ambiguous as to the tax treatment of transfers in human body parts and the IRS offers little guidance. See Lisa Milot, What Are We—Laborers, Factories, or Spare Parts? The Tax Treatment of Transfers of Human Body Materials, 67 Wash. & Lee L. Rev. 1053, 1053 (2010).  This lack of clarity surrounding the taxability of transfers in human body parts makes tax planning and compliance difficult. Id. at 1108. Given the increasing volume of these types of transactions, perhaps the time is ripe for Congress to legislate in this area.

Unfortunately, the questions left unanswered by the court in Perez are more thought provoking and interesting from a tax standpoint than the questions on which the court focused.  Do human body parts properties constitute capital assets?  Is your basis in your body zero, or does it adjust upward and downward?  If for example, you sell a kidney that you have stored outside your body for more than a year, can the proceeds of that sale be characterized as a capital gain?  At the very least, the unanswered questions posed by the court in Perez would surely make for an interesting conversation at a bar, and the facts in Perez provide ideas for a great law school exam hypothetical.

For a more comprehensive overview of the taxation of transfers of human body parts and a framework of how these transactions should be taxed, see Lisa Milot, What Are We—Laborers, Factories, or Spare Parts? The Tax Treatment of Transfers of Human Body Materials, 67 Wash. & Lee L. Rev. 1053 (2010) and Bridget J. Crawford, Our Bodies, Our (Tax) Selves, 31 Va. Tax Rev. 695 (2012).

Obama’s Endgame for Military Detention at Guantanamo

—by Kyle Tucker

Source: President Barack Obama, Remarks by the President on Plan to Close the Prison at Guantanamo Bay (Feb. 23, 2016), https://www.whitehouse.gov/the-press-office/2016/02/23/remarks-president-plan-close-prison-guantanamo-bay.

Abstract:

President Obama announced that a plan was submitted to Congress to close down the detention facility in Guantanamo Bay, Cuba. The plan seeks to transfer some of the detainees to foreign countries and create a facility in the United States for those detained in the future.

***

On February 23, 2016, President Obama once again spoke of a plan to shut down the facility at Guantanamo Bay and relocate those detained there. The President has similarly tried to introduce a plan to close this facility in the past, but his efforts were opposed by Congress. Previously, Congress responded by imposing narrow restrictions on appropriations to block any executive attempt to shut the facility down. However, it is the belief of President Obama that America’s ongoing experience with the facility at Guantanamo has reached a turning point. Not only does the President believe the facility no longer adequately represents core American ideals, such as strict adherence to the rule of law and human rights, but he also is of the opinion that the facility undercuts the national security and counterterrorism efforts of the United States.

Even though this issue has divided many along partisan lines, both President George W. Bush and Obama were still able to influence the current nature of the facility at Guantanamo. For example, in his speech, President Obama emphasized that around 500 transfers from the facility to other countries occurred throughout the Bush Administration, and that he has been able to transfer 147 additional detainees. As a product of this cross-administration trend to transfer those detained at Guantanamo, 91 detainees are all who remain in the facility.

To continue this declining trend, the Department of Defense, working alongside the Office of Management and Budget, produced and submitted to Congress a four-part plan on behalf of the Obama Administration. First, the plan states that 35 detainees, whose transfers were already approved, will be transferred to certain countries for subsequent monitoring. With these transfers, the federal government will monitor them to ensure that the foreign countries have proper security measures in place. Second, the review process in place to determine if an individual’s detention is still necessary to national security will be accelerated for all of the remaining detainees. If detention is no longer required for an individual after the review board’s decision, the plan may allow that individual to be transferred to another country.

Third, the legal mechanisms previously in place will continue to be used for those detained under the law of war. For example, continued implementation of the military commissions process is one method to be utilized with the remaining detainees. However, the President’s plan seeks to make further changes to this process because of its cost and duration in individual cases. Furthermore, even though military commissions will continue to be an option for those detained on the battlefield, President Obama stated that the best route in the future for those detained outside of the battlefield would be to utilize Article III courts. Lastly, the plan focuses on finding a suitable location in the United States to hold detainees. The facility will house those to be tried by military commissions, those who cannot be transferred to another country, or those determined to be a significant threat to national security. Since the President will work alongside Congress to find a particular facility in the United States, the plan did not name a specific location.

Just like any proposal, especially one that has produced a strong partisan divide, its potential effect on the future of American national security is unknown and unpredictable. Any plan President Obama comes up with is conditioned upon the approval of Congress to cut the check and make his plan a reality. Regardless of its ultimate outcome, the legal issues arising from the President’s plan will produce a debate with the potential to reshape the future of American national security.

New York Court of Appeals Finds State Thruway Authority not Responsible in Slip-and-Fall Outside Precinct

—by Adam Kuhn

Sherman v. N.Y. State Thruway Auth., No. 56, 2016 N.Y. LEXIS 1061 (May 5, 2016).

Abstract:

The New York Court of Appeals granted summary judgment for the defendant in a personal injury claim for a slip-and-fall. Applying the “storm in progress” doctrine, the Court concluded that the storm had not ended at the time of plaintiff’s fall, and therefore the defendant was not responsible.

***

Rodney Sherman, a New York State Trooper, brought a personal injury claim against the New York State Thruway Authority after falling on an icy sidewalk outside the precinct. Sherman argued that the Authority was negligent for failing to keep the sidewalk clear of ice. The Authority argued that it was entitled to summary judgment on the “storm in progress” doctrine. The Appellate Division, Second Department, granted summary judgment for the Authority, and Sherman appealed. The New York Court of Appeals affirmed the appellate division.

The storm in progress doctrine says that a landowner is not responsible for injuries occurring on his or her property if the injuries result from an icy condition “during an ongoing storm or for a reasonable time thereafter.” The Authority established that there was an ongoing storm at the time of Sherman’s fall. An ice storm occurred the night before the fall, and a weather report showed it was raining at near freezing temperatures when Sherman fell. Since the storm was still ongoing, the Authority’s responsibility of reducing the icy condition did not yet arise. Sherman was unable to raise a triable issue of fact.

In a dissenting opinion, Judge Rivera argued there were issues of fact about whether the storm had ended, and if it did, whether a reasonable time had passed for the Authority to manage the icy sidewalk.

Sodium Wars: New York City’s Effort to Warn

— by Forrest Young

ABSTRACT:   In 2015, New York City’s Board of Health announced new regulations requiring chain restaurants to provide warnings about the sodium in their menu options.  In February, a trial judge rejected the National Restaurant Association’s challenge. The First Department issued a temporary stay while the case is on appeal.

***

On February 26, 2016, New York Supreme Court Judge Eileen Rakower issued an order denying the National Restaurant Association’s petition to prevent implementation of New York City’s new health code regulation requiring select restaurants to label foods with high sodium content. Nat’l Restaurant Ass’n v. N.Y.C. Dep’t of Health and Mental Hygiene, No. 654024/15, 2016 WL 751881 (Sup. Ct. New York Cty. 2016).

The new regulation, enacted as Section 81.49 of the New York City Health Code, would require chain restaurants (those with 15 or more locations under the same name) to post a saltshaker symbol next to standard menu items with 2,300 milligrams of sodium or more. The regulation also mandates the menu to include a warning that reads “Warning: [this salt symbol] indicates that the sodium (salt) content of this item is higher than the total daily recommended limit (2300 mg). High sodium intake can increase blood pressure and risk of heart disease and stroke.” Restaurants found in violation of the section would be required to pay a 200 dollar fine.

In New York, an administrative regulation will be upheld if it has a “rational basis, and is not unreasonable, arbitrary or capricious.” Nat’l Restaurant Ass’n, 2016 WL 751881 at *1.  To receive a preliminary injunction, the petitioner must show by clear and convincing evidence that must show (1) a likelihood of success on the merits, (2) a danger of irreparable harm without such relief, and (3) a balancing of equities in its favor. Id.   The National Restaurant Association argued that Section 81.49 was invalid because (1) it violated separation of powers; (2) it is arbitrary and capricious; (2) it violates members’ First Amendment rights; and (4) it was preempted by the federal Nutrition Labeling and Education Act (NLEA). Id.

The court took these issues in turn, first holding that the sodium warnings do not violate separation of powers because the Board of Health relied on its public health expertise in regulating restaurants and the rules are not outside the bounds of its authority. The court held that the Board did not overstep into legislative-policy making because it “relied on its expertise in weighing the scientific evidence concerning the risks associated with excess sodium consumption.” The court distinguished these regulations from previous regulations limiting proportions of sugary drinks because “in contrast to the Soda Ban, by adopting Section 81.49, the Board did not devise a new rule that “significantly changes” the manner in which menu items containing sodium are provided to customers at eating establishments. It is within the Board’s regulatory authority to require the posting of information and warning labels concerning health risks.” Id. at *3.

Next, the court rejected the Association’s claim that the regulations were arbitrary and capricious finding that the agency’s determination was predicated on rational concerns regarding known health risks caused by high sodium intake. Nat’l Restaurant Ass’n, 2016 WL 751881 at *3.   Judge Rakower accepted the City’s contention that the regulations were a reasonable approach to the problem because the average New Yorker consumes nearly 1,000 milligrams more than the daily recommendation, and the average chain restaurant meal contains 3512 milligrams of sodium,. Id. The court held that the regulations were not unduly burdensome on chain restaurants because of their uniformity of menus options and preparation techniques.   Id.

The First Amendment challenge was dismissed on the basis that the warnings empower consumers with necessary information. Although the court recognized that commercial speech is protected, it found that the regulation simply provides consumers with “factual and uncontroversial” information. Id. at *4. Judge Rakower reasoned that “[p]ersonal autonomy is not hindered, but rather encouraged by providing information so that consumers can make informed decisions about health; said differently, information promotes autonomy, giving a consumer the opportunity to make choices appropriate to himself or herself individually.” Id. at *2.

Finally, the court directly rejected the Association’s preemption claim using a plain language interpretation. The NLEA “provides that express preemption provision ‘shall not be construed to apply to any requirement respecting a statement in the labeling of food that provides for a warning concerning the safety of the food or component of the food.’” Id. at *4. The court held that this language clearly allows states and localities to require their own food safety warnings, and that Section 81.49 falls squarely within those confines. Id.

For those reasons, the court ultimately rejected both the Association’s petition for declaration judgment, and preliminary injunction.   On February 29, 2016, the First Department granted an interim stay on enforcing the new rule, which would have gone into full-effect on March 1, 2016.

To Challenge Governmental Action in Land Use Matters, No Need for Unique Injury

— by Moira Ferguson

Source: In re Sierra Club v. Village of Painted Post, No. 151 (N.Y. Nov. 19, 2015)

Abstract: To have standing to challenge governmental action in land use matters, a party must show it would suffer a “special injury.” An injury is special where it is direct and in some way different from that of the public at large. However, the possibility that more than one person may be harmed by the governmental action does not defeat standing.

***

The Village of Painted Post is situated at the intersection of the Cohocton, Tioga and Chemung Rivers. Below these rivers sits the Corning aquifer. In February of 2012, the Village entered into a sales agreement with a subsidiary of Shell Oil Co. The sales agreement provided for the sale of 314 million gallons of water from the Corning aquifer, to the Shell Oil Co. subsidiary. The Village also entered into a lease agreement with Wellsboro & Corning Railroad. This lease agreement allowed for the construction of a water transloading facility in the Village. Water from the aquifer would be withdrawn, loaded, and transported via train at this facility.

Following the formation of these two agreements, petitioners commenced a proceeding against the Village. Petitioners included The Sierra Club, People for a Healthy Environment, Inc., Coalition to Protect New York, and individual residents of the Village. Petitioners claimed by failing to take into consideration adverse environmental impacts of the agreements, the Village failed to comply with the State Environmental Quality Review Act (SEQRA). Due to this neglect, petitioners asked the court to preliminarily enjoin any effects of the agreements until the Village complied with SEQRA. In response, the Village moved to dismiss, insisting petitioners lacked standing to bring a claim.

In Society of Plastics Indus. v. Cty of Suffolk, the Court set forth a framework for deciding when parties have standing to challenge governmental action in land use matters generally, and under SEQRA specifically. The Court decided that for standing purposes, the plaintiff must have a “special injury.” To be special, the injury must be direct, and different from that of the injury suffered by the public at large.1

The Supreme Court applied this rationale to each of the petitioners in the present case. The court found the organizations only alleged indirect, generalized environmental injuries that the public at large would suffer. These did not equate to the special injuries needed to confer standing. However, the Supreme Court found one individual petitioner, John Marvin, did suffer direct harm, distinct from that suffered by the general public. This harm equated to the special injury required to confer standing to challenge a governmental action in land use matters.

Marvin was a longtime resident of the Village, and lived less than a block for the transloading facility. He stated that when the water trains began running, the noises were so loud that they kept him and his wife awake at night. Marvin worried the noises would degrade not only the value of his home, but the quality of his life.

The Appellate Division also applied the standing framework set out in Society of Plastics, but rendered an opposite holding. The Appellate Division focused on the fact that Marvin complained about the noise from the trains, but did not address the noise from the transloading facility. The court acknowledged that many other Village residents lived along the train tracks, were subject to the injurious noise of the trains, and therefore suffered the same injury as Marvin. For the Appellate Division, because many residents of the Village suffered the same injury as Marvin, Marvin’s injury was not direct or different from that of the public at large. Therefore, he did not establish the special injury required to confer standing.

The Court of Appeals found the Appellate Division applied an overly restrictive analysis of the requirement to show standing. The Court reiterated that to have standing to challenge a governmental action in land use matters generally, the petitioner must suffer a special injury, meaning the injury is direct and is different from that of the public at large. However, to be special, the injury need not be unique.

Here, Marvin did not assert the increased train noise would cause him an indirect, collateral harm, congruent to the burden felt by the public at large. Instead, Marvin alleged a particularized harm that may also be inflicted upon other residents of the Village who live near the train tracts. Standing is not to be denied simply because many people suffer the same injuries.

The Court found the Appellate Division’s restrictive analysis of standing has detrimental effects on the judiciary system. Specifically, to deny standing to persons who are injured, simply because others suffer the same injury, insulates the most injurious and widespread government action from judicial review.

Although other Village citizens residing along the tracks could hear the trains, for Marvin, the injurious noise was still direct and different from that of the public at large. Accordingly, the noise equated to a special injury, sufficient to confer standing to challenge the Village’s two agreements, the governmental action that lead to Marvin’s injuries.

Second Amendment Precedence Developing Through SAFE Act Litigation

— by William Woodworth

Recently, two courts considered the constitutionality of New York’s SAFE Act. Both courts assessed whether the regulation burdens a second amendment right, and whether the regulation survives appropriate scrutiny. Here, the courts found the second amendment’s protections applied, and both applied intermediate scrutiny. However, the courts diverged on the application.

 

In the midst of the public debate about the extent that citizens should have a right to keep and bear arms, courts are faced with the problem of determining the scope of the constitutional right to keep and bear arms.  In late October, a state and federal court reached opposite conclusions on the constitutionality of the New York Secure Ammunition and Firearms Enforcement (SAFE) Act’s prohibition on loading more than seven rounds in the magazine of a firearm.  The New York court upheld the provision in Schulz v. State of New York Executive,[1] and the Second Circuit Court of Appeals invalidated it in N.Y. State Rifle & Pistol Ass’n, Inc. v. Cuomo.[2]

Despite the different outcomes in the cases, both applied the same general framework for analyzing the second amendment claims.  The courts first determined whether the restrictions were protected by the second amendment, and then determined which level of scrutiny to apply.  The Schulz court merely assumed that the SAFE Act imposed burdens on the rights protected by the Second Amendmet.  The Second Circuit applied a two-prong test.  Applying an objective, statistics-based standard, the court found magazines loadable with seven rounds were in common use.  Applying a subjective standard, the court then found that there was not strong evidence that possession of such rounds were for lawful purposes.  Thus, it concluded that although the protections were within the scope of the second amendment, the right to possess seven or more rounds in a magazine were not subject to the strongest second amendment rights.

Both the state and federal appellate courts applied intermediate scrutiny to the SAFE Act.  The New York appellate court was bound by the prior Court of Appeals decision in People v. Hughes.[3]  There, the Court of Appeals argued that the U.S. Supreme Court’s decision in District of Columbia v. Heller[4] expressly rejected rational basis review, yet implicitly rejected strict scrutiny by claiming Heller would not invalidate many traditional restrictions on firearm ownership.  The Second Circuit reached the same conclusion by applying the test from United States v. Carolene Products Co.  Finding (1) the second amendment’s core right is self-defense in a person’s home, and (2) alternative magazines remained available, the Second Circuit applied intermediate scrutiny.

Applying intermediate scrutiny, both courts found public safety and crime prevention were substantial government interests.  However, the courts diverged on whether the magazine regulations were substantially related to the important governmental interest.  In Schulz, the court held Schulz did not offer evidence showing reducing access to weapons id not substantially further public safety.  However, the Second Circuit found New York had not established that only loading seven rounds in a ten round clip would reduce crime.  Thus, that provision of the SAFE Act was invalidated on constitutional grounds.

Despite the rulings, both courts left open the possibility of reversing their holdings when new facts are presented.  The Schultz court presented a relatively brief constitutional analysis because of a lack of data opposing New York’s conclusions about the relationship between access to magazines and crime.  The Second Circuit was concerned about the compromise New York had created.  Because ten-round clips are more commercially available than seven-round clips are, the state legislature reached the compromising of allowing ten-round clips while only loading seven rounds in the magazine.  It seems the court may have been more favorable upholding a requirement where the number of rounds loaded in the magazine is equal to the magazine capacity.  Perhaps limiting magazines to a five-round capacity would meet the court’s concerns.

The application of constitutional analysis to firearm regulations remains unclear.  The recent challenges to the SAFE Act have been decided on an absence of evidence basis where the courts were not required to distinguish competing facts in the record to determine whether the state had the proper level of interest or a sufficient nexus between the interests and goals of the regulation.  This will provide uncertainty to states and litigants as new legislation regulating firearm rights is considered.

 

[1]               Case No. 520540, slip op. 07728 (N.Y. App. Div. 3d  Oct. 22, 2015).  The court broadly considered all provisions of the SAFE Act, including the seven round maximum for loading rounds in a magazine.

[2]               Nos. 14-36-cv, 14-319-cv (2d Cir. Oct. 19, 2015).  The court did uphold many other provisions of the SAFE Act.

[3]               1 N.E.3d 298 (2013).

[4]               554 U.S. 570 (2008).

Injured? You May be Covered: Court Of Appeals Extends the Duty of Care Owed by Medical Providers to Members of the General Public

— By Andrew Stewart

Davis v. South Nassau Communities Hosp., 2015 NY Slip Op 09229 (December 16, 2015).

Abstract: The Court of Appeals recognized a legal duty owed by medical providers to a non-patient, third party even in the absence of a special relationship. In doing so, the Court has joined the trend of other States, expanding the duty of care jurisprudence to include members of the general public.

***

In 2009, Lorraine Walsh drove herself to the Hospital and was checked into the emergency room. At 11:00 AM, two medical professionals (collectively with the Hospital referred to as “Defendants”) intravenously administered Dilaudid, an opioid narcotic painkiller and Ativan, a benzodiazepine drug. Examination of the warning labels supplied with the drugs, in addition with testimony elicited by an expert, established that the common side effects of Ativan include “sedation, dizziness, and disorientation”, which can create a “sedative/hypnotic” state. Additionally, Dilaudid can be up to eight times as powerful as morphine, with effects lasting between two to four hours. Dilaudid’s warning labels explicitly warn against the dangers of “driving a car or operating machinery.” Nevertheless, the two medical professionals at the Hospital failed to warn Walsh about the dangers of driving after receiving the medications. At 12:30 PM, only 90 minutes after administration of both drugs, Walsh was released from the hospital. Nineteen minutes later, she crossed the double centerline and crashed into another vehicle, seriously injuring the driver, Edwin Davis.

Davis filed suit alleging medical malpractice because Defendants failed to warn Walsh of the effects of the medication. His wife also alleged a derivative action for loss of consortium. Defendants moved to dismiss for failure to state a cause of action, which was granted by the trial court. The Appellate Division affirmed, stating that the Defendants did not owe a duty of care to the plaintiff because of the lack of a physician-patient relationship (that relationship existed between Walsh and Defendants, not Davis).

The Court of Appeals disagreed. It concluded that the duty of care extended to Davis: “the defendants owed to plaintiffs a duty to warn Walsh that the medication administered to her either impaired or could have impaired her ability to safely operate an automobile.”

Before reaching its conclusion, the Court of Appeals reviewed New York’s history of evaluating duty questions in the context of the medical profession. It noted the court’s precedent had been reluctant to impose a duty of care to “the general public” because it consists of “indeterminate, faceless, and ultimately prohibitively large class of plaintiffs, as opposed to a

‘known and identifiable group.’” The Court had only recognized a small exception for “special relationships.” Special relationships were limited to “members of a patient’s immediate family or household who may suffer harm as a result of the medical care a physician renders to that patient” because those plaintiffs are of a definable class. Importantly, the Court noted it had expanded the duty in such cases because the third party’s injury resulted from the physician’s performance of the duty of care owed to the patient [emphasis added]. The Court, therefore, concluded it had left the door open to expand the duty of care between a treating physician who takes the affirmative step of administering medication, but fails to warn the patient of the dangers of operating a motor vehicle, to a member of the general public who is affected by that omission [emphasis added].

In the instant case, the Court imposed a duty of care extending from the Defendants to Davis. In parting from previous decisions, the court identified several others factors that are used to calculate whether a duty should exist. Those include capacity of the parties to bear the loss, a policy of preventing future injuries, and the moral blame attached to the wrongdoer. Further, the Court quoted Prosser and Keaton; “no better general statement can be made than that the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists.” Torts § 54 at 359 {5th Ed. 1984).

Here, the Defendants took affirmative step to administer medication, but had failed to warn the patient about the risks to driving. Their failure to warn created a peril affecting every driver in Walsh’s vicinity. A duty of care must be imposed on medical professionals in this scenario, said the Court, because the “cost” of imposing the duty is small: he or she must simply warn the patient of the dangers. Physicians often advise patients of the risks of certain medications; requiring them to do so imposes no additional, significant obligations. Just as a pharmacist administers warnings to a patient that prescribed medication could impair the ability to drive when the patient picks up his or her prescription, a medical provider should be required to take a similar, simple prophylactic measure [emphasis added]. Furthermore, the Court recognized that other States extend the duty of care from the physician to members of the general public to warn the patient about adverse side effects of medications when the physician has administered the medication, or in other ways has treated the patient.

“This is an instance in which defendants’ ‘relationship with. . .the tortfeasor. . .placed them in the best position against the risk of harm.’” Therefore, the Court concluded that the Defendants owed a duty of care to Davis as a third party member of the general public.