Matter of Roman Catholic Diocese of Albany v. New York State Dept. of Health

In Matter of Roman Catholic Diocese of Albany v. New York State Dept. of Health (66 N.Y.2d 948, 489 N.E.2d 749, 498 N.Y.S.2d 780 [1985], revg on dissent of Levine, J., 109 A.D.2d 140, 490 N.Y.S.2d 636 [3d Dept 1985]) the Diocese had challenged the permission which the New York State Department of Health (DOH) had granted to Planned Parenthood to expand nonhospital abortion services in the cities of Albany and Hudson. In granting the permission, DOH had relied on its "50% rule." Pursuant to that rule, when less than 50% of a locality's abortions were being performed in nonhospital clinics, the DOH deemed that region of the state to be in need of additional nonhospital services. Finding that Albany and Hudson satisfied these criteria, DOH granted Planned Parenthood permission to expand its nonhospital abortion services. The Roman Catholic Diocese, in an article 78 proceeding, challenged the DOH determination, claiming that the "50% rule" on which it was based was a "rule" which had not been properly promulgated. The Appellate Division agreed, finding that "DOH impermissibly relied upon a rigid numerical policy (the 50% rule) not found in any statute or regulation." (109 A.D.2d at 145.) Justice Howard A. Levine vigorously dissented in a lengthy opinion (109 A.D.2d at 146-49) which the Court of Appeals ultimately adopted. In so doing, the Court of Appeals stated: "We agree with Justice Howard A. Levine, the dissenter at the Appellate Division, that only a fixed, general principle to be applied by an administrative agency without regard to other facts and circumstances relevant to the regulatory scheme of the statute it administers constitutes a rule or regulation . . . We agree also, for the reasons stated by the dissenting Justice . . . that the 50% guideline employed by the Department of Health in passing on the applications involved in the present proceeding did not constitute and was not applied as such a rule . . . ." (66 N.Y.2d at 951 .) Justice Levine had found that the "50% rule" was a "policy" rather than a "rule" because it was "neither the sole nor the determinative basis for the [agency's] finding" of public need for the proposed abortion facilities. (109 A.D.2d at 146.) Rather, it was "a nonconclusive, nonbinding guideline to be weighed along with other factors on the public need issue in adjudicating individual cases." (109 A.D.2d at 148.) Included among those factors were medical and population trends, issues relating to confidentiality and cost, and public policy. (109 A.D.2d at 146-147.) Thus, while the 50% calculation was undeniably a factor in the DOH determination, it was not "a 'preset, rigid numerical policy . . . which foredoomed' the result without reference to the facts and merits of the application." (109 A.D.2d at 147.) In reaching his conclusion, Justice Levine relied on, and oftentimes quoted, various cases by the Court of Appeals and the Appellate Divisions defining the circumstances when a policy had been erroneously applied as a rigid rule. He emphasized that "an agency is free to evolve standards, if consistent with the statutory framework, on a case-by-case basis and to apply them to the individual proceeding at hand [as] 'a guideline for a case-by-case analysis of the facts' . . . ." (109 A.D.2d at 148 .) However, unless the standard is filed as a rule, it may not be applied as "a rigid, unvariable standard or procedure completely conclusive of the rights and remedies of the affected party." (109 A.D.2d at 147.) Wholly improper is the "mechanical application" of a policy so it "establishes a pattern or course of conduct for the future" (109 A.D.2d at 147).