New York State Soc. of Surgeons v. Axelrod

• Decision Date: 02 May 1991
• Citation: 77 N.Y.2d 677,569 N.Y.S.2d 922,572 N.E.2d 605
• Parties: , 572 N.E.2d 605, 59 USLW 2687, 1 NDLR P 319 In the Matter of NEW YORK STATE SOCIETY OF SURGEONS et al., Appellants, v. David M. AXELROD, as Commissioner of Health of the State of New York, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 922

569 N.Y.S.2d 922

77 N.Y.2d 677, 572 N.E.2d 605, 59

USLW 2687, 1 NDLR P 319

In the Matter of NEW YORK STATE SOCIETY OF SURGEONS et al., Appellants, v. David M. AXELROD, as Commissioner of Health of the State of

New York, et al., Respondents.

Court of Appeals of New York.

May 2, 1991.

Bartley J. Costello, III and Paula Fitz Battiste, for appellants.

Robert Abrams, Atty. Gen. (Evelyn M. Tenenbaum, O. Peter Sherwood, Lawrence S. Kahn, and Susan L. Watson, of counsel), for respondents.

Thomas B. Stoddard, David G. Keyko, Robert F. Bacigalupi, Carroll Doyle, Wilfredo Fernandez, Armen H. Merjian, of the Connecticut Bar, admitted pro hac vice, Michael T. Isbell, Evan Wolfson and Herbert Semmel, for AIDS Action Council et al., amici curiae.

William B. Rubenstein, of the Pennsylvania and District of Columbia Bars, admitted pro hac vice, Arthur N. Eisenberg and Robert M. Levy, for the American Civil Liberties Union et al., amici curiae.

OPINION OF THE COURT

SIMONS, Judge.

Petitioners are four medical organizations whose membership consists of New York State physicians. Respondents are the Commissioner of Health and the New York State Public Health Council. In February of 1988, petitioners sent a letter to the Commissioner of Health requesting that infection with the human immunodeficiency virus (HIV infection) be added to the lists of communicable and sexually transmissible diseases pursuant to Public Health Law § 225(5)(h) and § 2311. ¹ The Commissioner denied the request on the ground that designation would be contrary to the health of the public because it would discourage cooperation of affected individuals and would lead to the loss of confidentiality for those infected with the disease. Petitioners then commenced this CPLR article 78 proceeding contending that the statutes imposed a duty on respondents to add HIV infection to the lists or, alternatively, if designation was a matter of discretion, that respondents' refusal to list HIV infection was arbitrary and capricious.

Supreme Court dismissed the petition, holding that designation was discretionary with respondents and that their decision was reasonable. A divided Appellate Division affirmed. 157 A.D.2d 54, 555 N.Y.S.2d 911. The court agreed that designation of a disease as communicable or sexually transmissible is within respondents' discretion but two Justices concluded in dissent that respondents' determination was arbitrary and capricious. We now affirm.

I

The Commissioner of Health is appointed by the Governor with the consent of the Senate and is charged with the responsibility of taking "cognizance of the interests of health and life of the people of the state, and of all matters pertaining thereto" (Public Health Law § 204[1]; § 206[1][a]. The statute provides that the appointee shall be a practicing physician skilled and experienced in public health duties (Public Health Law § 203). The Public Health Council consists of the Commissioner and 14 members appointed by the Governor with the consent of the Senate. It has the duty, at the request of the Commissioner, to consider any matter relating to the preservation and improvement of public health and it may also advise the Commissioner and recommend action concerning matters of public health (Public Health Law § 225[1]. The Council establishes health and health-related regulations, known as the Sanitary Code of the State of New York, subject to approval by the Commissioner (Public Health Law § 225[4].

The list of communicable diseases is promulgated by the Council with the approval of the Commissioner pursuant to Public Health Law § 225(4) and (5)(h). The list of sexually transmissible diseases is promulgated by the Commissioner pursuant to Public Health Law § 2311. Both are set forth in the Sanitary Code (see, 10 NYCRR 2.1, 23.1). Once a disease is designated as a communicable or sexually transmissible disease, statutory provisions requiring isolation and quarantine, reporting, testing and contact tracing apply to persons infected with it.

HIV infection is a communicable disease. It is transmitted by sexual contact, intravenous drug use or transfusions of infected blood. It can also spread from an infected mother to her infant during pregnancy or at the time of birth. Studies show no evidence that the infection is transmitted by casual contact. Individuals with HIV infection may or may not develop signs of infection and the disease can lead to AIDS. AIDS is a disease which damages the individual's immune system: those who develop it are vulnerable to unusual infections and cancers that do not generally pose a threat to anyone whose immune system is intact. At the present time there is no known cure for AIDS and the percentage of HIV infected individuals who will develop it is not known.

II

Petitioners contend first that the provisions of section 225(5)(h) and section 2311 require respondents to list HIV infection as a communicable and sexually transmissible disease. We do not construe those sections as imposing a flat, unvarying duty on respondents to designate as such every communicable or sexually transmissible disease in the Sanitary Code.

Section 225(5)(h) of the Public Health Law provides that "[t]he sanitary code may * * * designate the communicable diseases which are dangerous to the public health." Petitioners noting that HIV infection is both "communicable" and "dangerous to the public health", contend that the statute requires respondents to list it. The Legislature's use of the permissive word "may", however, supports the conclusion that designation is left to the discretion of respondents. Indeed, we find no language in Public Health Law § 225(5)(h) that arguably could be construed as mandating that they list all communicable diseases.

Our construction of the statute is confirmed by the language found in section 225(4) and (5)(a) of the Public Health Law. Section 225(4) authorizes the Council, with the approval of the Commissioner, to "establish, and from time to time, amend and repeal sanitary regulations, to be known as the sanitary code of the state of New York." Subdivision (5) of the same section provides that the Sanitary Code "may" "deal with any matters affecting the security of life or health or the preservation and improvement of public health in the state of New York" (Public Health Law § 225[5][a]. We addressed the scope of respondents' powers under section 225 in Chiropractic Assn. v. Hilleboe, 12 N.Y.2d 109, 120, 237 N.Y.S.2d 289, 187 N.E.2d 756 and stated that "the Sanitary Code in general presents a situation where flexibility and the adaptation of the legislative policy to infinitely variable conditions constitute the essence of the program". That observation is pertinent to respondents' powers to amend and adapt the Sanitary Code in order to deal with changing public health concerns regarding HIV infections.

The Commissioner of Health is vested with similar discretion under section 2311 of the Public Health Law. That section provides that the Commissioner shall promulgate a list of sexually transmissible diseases, "such as gonorrhea and syphilis." In determining the diseases to be included in such list, the Commissioner "shall consider those conditions principally transmitted by sexual contact and the impact of particular diseases on individual morbidity and the health of newborns" (Public Health Law § 2311).

Petitioners assert that because HIV infection is principally transmitted by sexual contact ² and has an impact on individual morbidity and the health of the newborns, respondents must include it on the list of sexually transmissible diseases. However, the statute does not require that every sexually transmitted disease be listed. It identifies the type of diseases to be covered, "such as gonorrhea and syphilis", and directs the Commissioner to "consider" conditions transmitted by sexual contact. Under the terms of the statute, the Commissioner has the discretion to "determin[e] the diseases to be included in such list." The discretionary nature of the power conferred is confirmed by the legislative history of the statute. As originally proposed, section 2311 could have been read as requiring that all sexually transmitted diseases be listed. Governor Carey vetoed it for that reason (see, Bill Jacket, L.1980, ch. 878). The bill was subsequently amended to vest discretion in the Commissioner by limiting its provisions to only those diseases "principally transmitted by sexual contact" (emphasis added; see, Bill Jacket, L.1980, ch. 878, Governor's Mem. in approval, dated Nov. 26, 1980, 1980 McKinney's Session Laws of N.Y., at 2559, 2560 [list would "include such other sexually transmissible diseases as may be determined by the Commissioner of Health"].

There are valid reasons for giving the Commissioner discretion in these matters. Placement of any disease on the communicable or sexually transmitted disease lists triggers statutory provisions relating to isolation and quarantine, reporting, mandatory testing and contact tracing (see, Public Health Law arts. 21, 23; 10 NYCRR parts 2, 23)--provisions which, for public health reasons, may not be appropriate in dealing with every type of communicable or sexually transmissible disease. The Commissioner has determined, for example, that no public health purpose is served by placing influenza, a communicable disease, and chlamydia, a sexually transmissible disease, on the lists. Whether HIV infection should be listed or not involves a similar determination by respondents after considering the circumstances attendant to the disease.

III

Petitioners urge alternatively that if respondents have discretion in these matters, their determination in this case is arbitrary and capricious because they failed to consider the pervasive and serious effect of the disease on the public as a whole and petitioners in particular. They argue that the reporting, mandatory testing and contact tracing...