In the Matter of Feminists Choosing Life of N.Y. Inc. v. Empire State Stem Cell Bd.

• Decision Date: 16 June 2011
• Citation: 926 N.Y.S.2d 671,2011 N.Y. Slip Op. 05160,87 A.D.3d 47
• Parties: In the Matter of FEMINISTS CHOOSING LIFE OF NEW YORK, INC., et al., Appellants,v.EMPIRE STATE STEM CELL BOARD, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

87 A.D.3d 47

926 N.Y.S.2d 671

2011 N.Y. Slip Op. 05160

In the Matter of FEMINISTS CHOOSING LIFE OF NEW YORK, INC., et al., Appellants,

v.EMPIRE STATE STEM CELL BOARD, et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

June 16, 2011.

Thomas Marcelle, Albany (Kathleen M. Scanlon, New York City, of counsel), for appellants.Eric T. Schneiderman, Attorney General, Albany (Andrew B. Ayers of counsel), for respondents.Kelley Drye & Warren, L.L.P., New York City (Neil Merkl of counsel), for Kevin T. Fitzgerald, S.J., PhD and others, amici curiae.Edward T. Mechmann, New York City, for New York State Catholic Conference, amicus curiae.Philip J. Vecchio, East Greenbush, for Theresa Deisher, PhD, amicus curiae.Before: SPAIN, J.P., LAHTINEN, KAVANAGH, McCARTHY and GARRY, JJ.GARRY, J.

Appeal from a judgment of the Supreme Court (McDonough, J.), entered July 19, 2010 in Albany County, which dismissed petitioners' application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to, among other things, review a resolution of respondent Empire State Stem Cell Board permitting certain researchers to compensate oocyte donors.

In 2007, the Legislature created respondent Empire State Stem Cell Board (hereinafter ESSCB) to administer the Empire State Stem Cell Trust Fund (hereinafter Fund) by making grants to researchers working to advance the field of stem cell biology ( see Public Health Law § 265–a[1]; State Finance Law § 99–p; L. 2007, ch. 58, pt. H [hereinafter the Stem Cell Act] ). ESSCB consists of a funding committee responsible for, among other things, soliciting and approving grant applications, and an ethics committee responsible for, among other things, recommending and ensuring compliance with appropriate ethical, scientific and medical standards ( see Public Health Law §§ 265–b, 265–c). In 2009, upon the recommendation of the ethics committee, the funding committee adopted a resolution to include in future grant contracts a clause permitting contractors to reimburse women for donating oocytes, or eggs, for research purposes.¹ Petitioner Feminists Choosing Life of New York, Inc., along with individual members of its board of directors, brought this combined action, as amended, for declaratory judgment and proceeding pursuant to CPLR article 78 against ESSCB and respondent Commissioner of Health seeking, among other things, to annul the resolution. Respondents answered and sought to have the petition dismissed. After oral argument, Supreme Court dismissed the petition, in part on grounds of standing and in part on the merits. Petitioners appeal.

Initially, we agree with Supreme Court that the individual petitioners lack standing as citizen taxpayers to challenge the resolution on the ground that it fails to provide for fully informed consent ( see generally Public Health Law § 2441[5]; § 2442).² A citizen taxpayer may seek “equitable or declaratory relief ... against an officer or employee of the state who in the course of his or her duties [causes] a wrongful expenditure ... or any other illegal or unconstitutional disbursement of state funds” ( State Finance Law § 123–b[1]; see Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 813, 766 N.Y.S.2d 654, 798 N.E.2d 1047 [2003], cert. denied 540 U.S. 1017, 124 S.Ct. 570, 157 L.Ed.2d 430 [2003] ). While standing under State Finance Law § 123–b does not depend on a showing of aggrievement, the citizen taxpayer's claim “must have a sufficient nexus to fiscal activities of the [s]tate” ( Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d at 813, 766 N.Y.S.2d 654, 798 N.E.2d 1047 [internal quotation marks and citation omitted] ). “The statute is narrowly construed, and claims seeking review of a state actor's alleged mismanagement of funds or the arbitrary and capricious distribution of funds lawfully allocated to an agency are not covered by section 123–b” ( Matter of Humane Socy. of United States v. Empire State Dev. Corp., 53 A.D.3d 1013, 1016, 863 N.Y.S.2d 107 [2008], lv. denied 12 N.Y.3d 701, 876 N.Y.S.2d 348, 904 N.E.2d 503 [2009] [internal quotation marks, brackets and citations omitted]; accord Matter of Vector Foiltec, LLC v. State Univ. Constr. Fund, 84 A.D.3d 1576, 1578, 923 N.Y.S.2d 287 [2011] ). Here, petitioners assert that the informed consent standards developed by ESSCB's ethics committee are inadequate to ensure that the consent of compensated donors will be truly voluntary. This is a challenge to the manner in which the donor compensation program is conducted, rather than to the agency's authority to conduct it; as such, it is “not of the kind for which State Finance Law § 123–b confers standing” ( Matter of Transactive Corp. v. New York State Dept. of Social Servs., 92 N.Y.2d 579, 589, 684 N.Y.S.2d 156, 706 N.E.2d 1180 [1998] ).

Petitioners further contend that they have common-law standing as taxpayers to raise the informed consent challenge. This doctrine permits “taxpayers to challenge important governmental actions, despite such parties being otherwise insufficiently interested for standing purposes, when the failure to accord such standing would be in effect to erect an impenetrable barrier to any judicial scrutiny of legislative action” ( Matter of Colella v. Board of Assessors of County of Nassau, 95 N.Y.2d 401, 410, 718 N.Y.S.2d 268, 741 N.E.2d 113 [2000] [internal quotation marks and citation omitted]; accord Matter of Vector Foiltec, LLC v. State Univ. Constr. Fund, 84 A.D.3d 1576, at 1578, 923 N.Y.S.2d 287). No such impenetrable barrier exists here, since no showing has been made that an oocyte donor would be unable to challenge the procedures used to obtain her informed consent ( see Matter of Transactive Corp. v. New York State Dept. of Social Servs., 92 N.Y.2d at 589, 684 N.Y.S.2d 156, 706 N.E.2d 1180; compare Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d at 814–815, 766 N.Y.S.2d 654, 798 N.E.2d 1047). Accordingly, Supreme Court correctly concluded that the individual petitioners lack standing to raise this claim and declined to address its merits.

A brief review of the pertinent scientific terms will be helpful before addressing the substantive issues. Stem cells are “stem or progenitor cells that divide and are capable of generating one or more different types of progeny. Stem cells and their progeny can potentially repair or replace specific tissues or be used to develop disease models” (Public Health Law § 265). Embryonic stem cells can be created through in vitro fertilization, in which an oocyte is fertilized and permitted to develop into a blastocyst. A blastocyst is an early stage in the development of an embryo, consisting of a hollow structure of 100 to 250 cells with an inner layer of “pluripotent” stem cells, meaning that the cells are capable of developing into any cell in the body. In theory, stem cells may also be developed through somatic cell nuclear transfer (hereinafter SCNT), in which the nucleus of an oocyte is replaced with the nucleus of a somatic cell (that is, a cell that is neither an egg nor a sperm), and the oocyte—now carrying the genetic material of the somatic cell—is stimulated to grow into a blastocyst. However, stem cells have not yet been successfully developed from human oocytes using SCNT.

Petitioners contend that Supreme Court erred in rejecting their claim that ESSCB exceeded its statutory authority in authorizing the Fund to compensate women for oocyte donations that may be used to create stem cells using SCNT. In their view, the donor compensation program violates Public Health Law § 265–a(2), which provides that “[n]o grants made available in the [Fund] from any source shall be directly or indirectly utilized for research involving human reproductive cloning.” ³ We reject this contention, finding that the use of SCNT to create stem cells does not constitute “ human reproductive cloning” and that the donor compensation program does not improperly make grant funds available to be “directly or indirectly utilized” for such cloning.

The Legislature did not provide a definition of the phrase “human reproductive cloning” ( see generally Public Health Law, art. 2, tit. V–A). When the interpretation of unambiguous language depends on “pure statutory reading and analysis,” courts accord no deference to an agency's interpretation ( Kurcsics v. Merchants Mut. Ins. Co., 49 N.Y.2d 451, 459, 426 N.Y.S.2d 454, 403 N.E.2d 159 [1980] ). However, “where the statutory language is special or technical and does not consist of common words of clear import, courts will generally defer to the agency's interpretative expertise unless that interpretation is unreasonable, irrational or contrary to the clear wording of the statute” ( Kennedy v. Novello, 299 A.D.2d 605, 607, 750 N.Y.S.2d 175 [2002], lv. denied 99 N.Y.2d 507, 757 N.Y.S.2d 817, 787 N.E.2d 1163 [2003] [internal quotation marks and citations omitted]; see Matter of New York State Assn. of Life Underwriters v. New York State Banking Dept., 83 N.Y.2d 353, 359–360, 610 N.Y.S.2d 470, 632 N.E.2d 876 [1994] ). We agree with Supreme Court that the meaning of “human reproductive cloning” is not commonly understood, and that ESSCB's administrative expertise in interpreting this technical term is entitled to deference ( see Matter of Teachers Ins. & Annuity Assn. of Am. v. City of New York, 82 N.Y.2d 35, 41–42, 603 N.Y.S.2d 399, 623 N.E.2d 526 [1993]; Kennedy v. Novello, 299 A.D.2d at 608, 750 N.Y.S.2d 175).

Under ESSCB's interpretation, “human reproductive cloning” means attempting to establish a pregnancy or the birth of a human child by transferring a human embryo created by SCNT into a woman's uterus, and does not include “therapeutic cloning,” in which SCNT is used to produce stem cells for research or therapeutic purposes. Respondents supported this interpretation with an affidavit from Lawrence Sturman, the Executive Director of New York...