Saturday, October 8, 2016

The Impact of BOREALI: New York’s Rulemaking Process and Article 78 Challenges

By Brittney M. Walker
Brittney Walker is a 2016 graduate of Albany Law School. She holds her bachelor’s degree in Political Science from Pace University and a MBA from Rensselaer Polytechnic Institute.
While at Albany Law, Brittney served as Editor in Chief of International Law Studies. She also competed in the Karen C. McGovern Senior Prize Trials Moot Court Competition.
In her free time, Brittney enjoys traveling, reading a good book, cooking and spending time with her family.
She prepared this paper for Prof. Rose Mary Bailly's Administrative Law course.

This paper examines two recent cases that deal with issues that arise when an administrative agency oversteps its authority. Specifically, it looks at three New York City agencies: the Department of Health and Mental Hygiene, the New York City Board of Health, and the New York City Taxi and Limousine Commission.

In doing so, this paper compares how these different agencies each acted beyond the scope of their authority. They did so by acting in a legislative capacity and enacting laws that they lacked the authority to enact.

At the center of these three cases is Boreali v. Axelrod, a 1987 decision of the New York Court of Appeals. The question in Boreali was whether the Public Health Council, a state agency, had the authority to regulate smoking in public places or whether this was a power designated solely to the legislature.

The Court explained that, while the legislature granted powers to the Public Health Council, these powers were limited to acting as an administrative agency and not a rule-making authority. Furthermore, the Court maintained that, had the legislature adopted a law prior to the enactment of the agency’s regulation and the agency had simply added to the already adopted law, then the agency's ban on smoking would have been appropriate.

But in the absence of such a prior law, the agency's promulgation was an overreach of authority and, therefore, invalid.
To read the paper, open HERE.