In thе Matter of Terrence Stevens et al., Respondents, v. New York State Division of Criminal Justice Services, et al., Appellants
No. 70
State of New York Court of Appeals
September 22, 2023
WILSON, Chief Judge
This opinion is uncorrected and subject to revision before publication
Matthew W. Grieco, for appellants.
Doran J. Satanove, for respondents.
District Attorneys Association of the State of New York, Inc.; Alexander F. Roehrkasse; Parents of Murdered Children, Inc.; New York Civil Liberties Union; Brendan Parent; Erin E. Murphy, amici curiae.
OPINION
WILSON, Chief Judge:
The issue before us is whether the legislature’s grant of rulemaking authority to the Commission on Forensic Sciences was sufficient to authorize the Commission’s promulgation of the Familial DNA Search Regulations, codified at
I.
In 1994, cognizant of the promises and perils of the emerging use of DNA technology in law enforcement, the legislature took a measured but significant step by enacting the DNA Databank Act (L 1994, ch 737 [codified at
The Databank Act served a dual purpose; it authorized the creation of the New York State Commission on Forensic Science (Commission) (
The Commission and DNA Subcommittee are independent oversight agencies with different functions. The DNA Subcommittee, composed solely of scientists, is granted certain responsibilities,
The Databank Act provides strict guidelines on the approved uses of Databank information (see
After the Databank Act was adopted, the Commission created an implementation plan and promulgated a set of regulations governing the use of the Databank (
The Commission’s initial regulations permitted the New York State Division of Criminal Justice Services (DCJS) to release information contained within the Databank to law enforcement when a databank search yielded a “direct match,” i.e., when
“Partial matches,” on the other hand, are “near hit[s]” (Partial Match Policy at 5): matches in which alleles at the core loci in two DNA samples (one retrieved from the Databank, and one retrieved from a crime scene) are not the same but share a high number of matching alleles. Such “near hit[s] [may] greatly limit the pool of potential suspects” (id.), though they can indicate many things. A near hit might suggest that the person in the Databank is a “close blood relative” of the person whose DNA sample was found at the crime scene (id.), but it might also indicate that the sample found at the crime scene was partially degraded or contained a mixture оf multiple people’s DNA (see brief for petitioners-respondents at 12, citing
After four years of deliberation, in 2010 the Commission promulgated a partial match rule which, subject to certain restrictions, authorized the release of partial match information to law enforcement (Partial Match Policy at 5). The 2010 partial match regulations did not permit familial DNA searches (see id. [“The new regulations will not permit what is often called ‘familial searching,’ or singling out particular families and actively searching their DNA profiles”]). A familial DNA search is essentially an intentional search for partial matches, as opposed to the unintentional partial match system previously created (see NY St Div of Criminal Justice Servs Mem from Gina L. Bianchi, Deputy Commr & Counsel, to Members of the Commn on Forensic Science, dated Jan. 2, 2008 at 1-2).
In 2017, the DNA Subcommittee submitted to the Commission a recommendation to authorize familial DNA searches (FDS Policy at 9). The recommendation authorized familial DNA searches, subject to stringent restrictions regarding when such searches were to be permitted and practices on how law enforcement may request them. The Commission adopted the DNA Subcommittee’s recommendation (id. at 8). After a period of notice and comment, on October 18, 2017, the DCJS formally adopted the recommendation as part of formal Familial DNA Search (FDS) Regulations (codified at
Under the FDS Regulations, law enforcement officers wishing to conduct a familial search must first determine that, for a DNA sample collected at a crime scene, “there is not a match or a partial match to a[n] [existing] sample in the DNA databank” (
There is no provision in the FDS for an identified relative to be notified and/or challenge the search bеfore law enforcement officials may proceed with an investigation based on a familial match from the Databank. Petitioners Terrence Stevens and Benjamin Joseph are two Black men living New York who have never been convicted of a crime. Each has a brother whose genetic information has been collected and stored in the DNA Databank as the result of a felony conviction, in accordance with Databank Act requirements. Mr. Stephens and Mr. Joseph brought this CLPR article 78 proceeding against respondents the DCJS, the Commission, DCJS Executive Deputy Commissioner and Commission Chairman Michael C. Green, and the DNA Subcommittee alleging, among other claims, that respondents lacked statutory authority to promulgate the FDS Regulations and therefore violated the separation of powers doctrine under the New York Constitution. Respondents denied petitioners’ allegations and asserted that petitioners lacked standing to challenge the FDS Regulations.
Supreme Court held that petitioners had standing to bring their article 78 petition, but denied the petition on the merits, determining that it was a proper exercise of the Commission’s statutory authority to promulgate the FDS Regulations (see 2020 NY Slip Op 30861[U], *1 [Sup Ct, NY County 2020]). The Appellate Division, with two Justices dissenting on standing, reversed Supreme Court’s judgment, granted the petition, and annulled the FDS Regulations (206 AD3d 88 [1st Dept 2022]).
Respondents appealed as of right (see
A petitioner challenging government agency action pursuant to an article 78 petition has the burden of demonstrating an “injury in fact” and that the alleged injury falls within the “zone of interests or concerns sought to be promoted or protected by the statutory provision under which the [government] has acted” in order to have standing to challenge that action (Matter of Mental Hygiene Legal Servs. v Daniels, 33 NY3d 44, 50 [2019], quoting New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 211 [2004]; see also Matter of Dairylea Coop. v Walkley, 38 NY2d 6, 9 [1976]). “The injury-in-fact requirement necessitates a showing that the party has an actual legal stake in the matter being adjudicated and has suffered a cognizable harm that is not tenuous, ephemeral, or conjectural but is sufficiently concrete and particularized to warrant judicial intervention” (Daniels, 33 NY3d at 50 [internal quotation marks and citation omitted]; see also Matter of Association for a Better Long Is., Inc. v New York State Dept. of Envtl. Conservation, 23 NY3d 1, 7 [2014]). While “[t]he requirement of injury in fact for standing purposes is closely aligned with our policy not to render advisory opinions” (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 761 [1991]), we have also cautioned that standing rules should not be applied “in an overly restrictive manner where the result would be to completely shield a particular action from judicial review” (Matter of Sierra Club v Village of Painted Post, 26 NY3d 301, 311 [2015], quoting Matter of Association for a Better Long Is., Inc., 23 NY3d at 6).
Although the injury in fact here is unusual, it is cognizable. Because each petitioner has a brother whose DNA is stored in the Databank, he has a unique risk of being identified through the Databank and targeted for police scrutiny because of his familial relationship and shared genetic material (Society of Plastics Indus., 77 NY2d at 774). Under these particular circumstances, that risk is not “founded on [impermissible] layers of speculation” (Novello, 2 NY3d at 213).
Similarly, petitioners have demonstrated that their injury falls “within the concerns the Legislature sought to advance or protect by the statute” (Society of Plastics Indus., 77 NY2d at 774 [zone of interests requirement “assures that groups whose interests are only marginally related to, or even inconsistent with, the purposes of the statute cannot usе the courts to further their own purposes at the expense of the statutory
III.
On the merits, this appeal presents two straightforward questions: (A) does the legislature have the power to delegate rulemaking authority over familial DNA searches to the Commission; and (B) did the legislature do so? The Court unanimously agrees that the legislature has that power; the disagreement is whether the Databank Act granted the Commission the authority to promulgate the FDS Regulations. We hold that it did so. Although the Appellate Division examined the factors laid out in Boreali v Axelrod, (71 NY2d 1 [1987]), that case has no application here.3 Interpretation of the Databank Act to determine whether the regulations fall within the scope of the statute’s grant of regulatory authority is a pure question of statutory interpretation.
A
New York Constitution, article V, § 3 expressly provides that “the legislature may from time to time assign by law new powers and functions to . . . commissions.” Although “the Legislature
Duly enacted statutes, including those pertaining to administrative action, enjoy a presumption of constitutionality (see Matter of County of Chemung v Shah, 28 NY3d 244, 262 [2016]). We note that the Commission has promulgated regulations governing both full and partial DNA matches and has done so without challenge to the legislature’s power to delegate rulemaking authority concerning access to, operation of, and restrictions on dissemination of information derived from the Databank. The Commission’s original regulations defined “matches” as direct matches, where the sample matched a record in the Databank with an extremely high degree of certainty (see Partial Match Policy at 5). Because the Databank Act delegated to the Commission the authority to determine what constituted a match, a claim that the legislature lacked the power to delegate rulemaking authority in this area to the Commission cannot turn on the particular definition of “match” chosen by the Commission.
B
The only real question on this appeal is whether the legislative grant of authority in the Databank Act delegated to the Commission the power to issue regulations concerning access to and use of the information stored in the Databank.
The legislature’s policy determinations and limiting guidelines are evident from the plain text of the Databank Act and its structure. Although the petitioners characterize the statutory authorization to promulgate forensic DNA policy as granted to or shared with the DNA Subcommittee, a smаll
The DNA Subcommittee has a narrowly prescribed mandate: to provide the Commission with specialized expertise on the science of DNA forensics. The DNA Subcommittee’s authority to promulgate “binding” recommendations to the Commission is limited to specifically enumerated, highly technical areas pertaining to testing standards and accreditation. Our dissenting colleagues point to Subcommittee (not Commission) minutes that describe its recommendation to adopt the FDS Regulations as “binding” (dissenting op at 9). But the Attorney General at oral argument stated that those recommendations were not treated by the Commission as binding and, in any event, petitioners have not challenged the adoption of the regulations based on that alleged procedural error. Regardless, the Databank Act expressly confines the Subcommittee’s authority to promulgate a “binding recommendation” to narrowly delineated topics.4
In contrast, the Databank Act authorizes the Commission to “promulgate a policy for the establishment and operation of a DNA identification index consistent with the operational requirements and capabilities of the [DCJS]” (
“(a) one member shall be the chair of the New York state crime laboratory advisory committee;
“(b) one member shall be the director of a forensic laboratory located in New York state;
“(c) one member shall be the director of the office of forensic services within the [DCJS];
“(d) two members shall be a scientist having experience in the areas of laboratory standards or quality assurance regulation and monitoring and shall be appointed upon the recommendation of the commissioner of health;
“(e) one member shall be a representative of a law enforcement agency and shall be appointed upon the recommendation of the commissioner of criminal justice services;
“(f) one member shall be a representative of prosecution services who shall be appointed upon the recommendation of the commissioner of criminal justice services;
“(g) one member shall be a representative of the public criminal defense bar who shall be appointed upon the recommendation of an organization representing public defense services;
“(h) one member shall be a representative of the private criminal defense bar who shall be appointed upon the recommendation of an organization of such bar;
“(i) two members shall be members-at-large, one of whom shall be appointed upon the recommendation of the temporary president of the senate, and one of whom shall be appointed upon the recommendation of the speaker of the assеmbly; and
“(j) one member, who shall be an attorney or judge with a background in privacy issues and biomedical ethics, shall be appointed upon the recommendation of the chief judge of the court of appeals” (subd [2]).
Most importantly, the Act gives the Commission—not the DNA Subcommittee—the authority to “[p]romulgate standards for a determination of a match between the DNA records contained in the state DNA identification index and a DNA record of a person submitted for comparison therewith” (
Crucially, in
“DNA records contained in the state DNA identification index shall be released only for the following purposes:
“(a) to a federal law enforcement agency, or to a state or local law enforcement agency or district attorney’s office for law enforcement identification purposes upon submission of a DNA record in connection with the investigation of the commission of one or more crimes or to assist in the recovery or identification of specified human remains, including identification of missing persons, provided that there exists between the division and such agency a written agreement governing the use and dissemination of such DNA records in accordance with the provisions of this article”
As the dissent observes, the legislature did not “intend[] for the Databank to be used for any purpose deemed appropriate by the Commission” (dissenting op at 26). But it did intend exactly what it stated in section 995-c (6): the Databank is to be used for “law enforcement identification purposes.” The
only when such offices submitted a DNA sample for comparison; and only for specified purposes, including the investigation of a crime (id.). The challenged regulations implement and fully comply with the statutory mandate, including that the information released from the Databank is done only when the request is in connection with the investigation of a crime (or the other two statutory purposes not at issue here).
Indeed, as would be expected from the text of the Databank Act evidencing a legislative concern for the security and privacy of such information, the challenged FDS Regulations sharply limit the universe of data that might be disclosed. In the absence of those regulations—left purely to the statutory language—nothing would restrict requests for familial searches to, for example, instances where a law enforcement agency had not attempted any other means to identify the perpetrator.
The legislative history of the Databank Act further confirms that the legislature intended to delegate to the Commission the power to regulate access to and use of information in the Databank (Assembly Mem in Support, Bill Jacket, L 1994, ch 737 at 5 [“the bill’s unprecedented creation of the
Given the clarity and specificity of the guidelines provided in the Databank Act, respondents acted within their delegated authority. The FDS Regulations are a result of “administrative rule-making,” not “legislative policy-making” (Matter of Independent Ins. Agents & Brokers of N.Y., Inc. v New York State Dept. of Fin. Servs., 39 NY3d 56, 69 [2022]). Here, the legislature made the policy determination that New York State should have well-developed DNA testing programs to assist law enforcement, that the use of the information should be limited, and the data and results secure. To achieve those ends, it directed the Commission to promulgate rules and administer that program in accordance with the legislature’s defined policy ends, including the protection of privacy interests (cf. Delgado v State, 39 NY3d 242, 263-264 [2022]). That the statute does not expressly mention familial searches is not pertinent; the statutory provisions cited above grant the Commission the power to determine what constitutes a “match” and to establish rules regarding use, dissemination, and confidentiality of information based on matches of DNA samples submitted by law enforcement (see e.g. Garcia v New York City Dept. of Health & Mental Hygiene, 31 NY3d 601 [2018] [holding that the Bоard of Health may require influenza vaccines even though influenza was not expressly listed among the vaccines required by statute]; Matter of Levine, 39 NY2d at 515 [statutory “standards or guides need only be prescribed in so detailed a fashion as is reasonably practicable in light
By contrast, in Matter of NYC C.L.A.S.H., Inc. v New York State Off. of Parks, Recreation & Historic Preserv. (27 NY3d 174) [2016], the Public Health Law demonstrated that the legislature had made the policy decision to limit secondhand smoke in certain areas of the state, “and left it to state agencies to act within the confines of that determination” (id. at 183). The Databank Act’s grant of regulatory is, in contrast, narrow and specific: it directed the Commission to weigh multiple specified interests, with technical guidance from the DNA Subcommittee, and promulgate rules that achieve the defined legislative goals. The Commission exists to promulgate standards, accreditation, and protect privacy. In choosing to allow, subject to strict restrictions, the use the familial DNA searches, it has defined matches and taken steps to protected privacy exactly as it was authorized to do.
Regulatory agencies are “clothed with those powers expressly conferred by [their] authorizing statute[s], as well as those required by necessary implication” (Matter of Acevedo v New York State Dept. of Motor Vehs., 29 NY3d 202, 221 [2017]). In general, agencies “can adopt regulations that go beyond the text of [enabling] legislation, provided they are not inconsistent with the statutory language or its underlying purposes” (Matter of General Elec. Capital Corp. v New York State Div. of Tax Appeals, Tax Appeals Trib., 2 NY3d 249, 254 [2004]).
IV.
Petitioners advance an alternative argument that the FDS Regulations are arbitrary and capricious and request that we remand this case to the Appellate Division for consideration of that issue. Petitioners argue that respondents promulgated the FDS Regulations without appropriate consideration of the potentially disproportionate impact of familial searches on Black and Hispanic New Yorkers, and whether the investigatory benefit of using familial searches outweighs that potential disproportionate impact. In
Accordingly, the order of the Appellate Division should be reversed, with costs, and the petition dismissed.
LINDLEY, J. (dissenting):
The decision to permit familial searching of the DNA Databank in New York was made by the Commission on Forensic Sciences (Commission) based upon the “binding recommendation” of its DNA Subcommittee pursuant to
I.
To understand the purposes behind the relevant authorizing legislation (i.e., the DNA Databank Act [
In 1989, following a three-month Frye hearing, the trial judge in People v Castro (144 Misc 2d 956, 979 [Sup Ct, Bronx County 1989]) ruled that, although “DNA forensic identification techniques and experiments are generally accepted in the scientific community and can produce reliable results,” certain DNA evidence in that case was inadmissible because the “testing laboratory failed in several major respects to use the generally accepted scientific techniques and experiments for obtaining reliable results, within a reasonable degree of scientific certainty” (id. at 980). The Castro case, and others like it, demonstrated the need in New York for an oversight body to ensure the scientific accuracy of DNA testing. In the years that followed, the so-called “DNA Wars” were fought in courtrooms across the country over the accuracy and reliability of DNA testing methods and results (see Jay D. Aronson, Genetic Witness: Science, Law and Controversy and the Making of DNA Profiling [2007], at 120-145).
In March 1994, this Court determined that DNA evidence (specifically, the “restriction fragment length polymorphism” [RFLP] methodology) was generally accepted as reliable in the scientific community (People v Wesley, 83 NY2d 417, 426 [1994]). The determination in Wesley established that the RFLP methodology satisfied the Frye standard of admissibility, thus
Several months later, “[i]n direct response to this Court‘s green light in People v Wesley [] for the introduction of DNA profile evidence” (People v Williams, 35 NY3d 24, 50 n 1 [2020] [DiFiore, J., concurring]), the legislature enacted the DNA Databank Act, which created the Commission on Forensic Science and “a subcommittee on forensic DNA laboratories and forensic DNA testing,” i.e., the DNA Subcommittee (
Pursuant to
II.
“(a) increase and maintain the effectiveness, efficiency,
reliability, and accuracy of forensic laboratories, including forensic DNA laboratories; “(b) ensure that forensic analyses, including forensic DNA testing, are performed in accordance with the highest scientific standards practicable;
“(c) promote increased cooperation and coordination among forensic laboratories and other agencies in the criminal justice system;
“(d) ensure compatibility, to the extent consistent with the provisions of this article and any other applicable provision of law pertaining to privacy or restricting disclosure or redisclosure of information, with other state and federal forensic laboratories to the extent necessary to share and exchange information, data and results of forensic analyses and tests; and
“(e) set forth minimum requirements for the quality and maintenance of equipment” (
§ 995-b [2] ).
The statute further provides that the Commission, “in consultation with the DNA [S]ubcommittee, shall promulgate a policy for the establishment and operation of a DNA identification index consistent with the operational requirements and capabilities of the division of criminal justice services” (
The DNA Subcommittee, for its part, is authorized to “assess and evaluate all DNA methodologies proposed to be used for forensic analysis, and make reports and recommendations to the commission as it deems necessary” (
As can be surmised from its provisions, the DNA Databank Act was designed by the legislature to address “[o]ne of the
For the first two decades or so of its existence, the DNA Databank was used for its intended purpose, i.e., to compare DNA recovered from crime scenes with the genetic profiles of designated offenders in the Databank to look for matches, which, if found, would lead the police directly to the perpetrator. In October 2017, however, DCJS permitted a new use of the Databank when it promulgated the familial search regulations at issue herein.
III.
Familial searching generally refers to the “deliberate search of a DNA database conducted for the intended purpose of potentially identifying close biological relatives to the unknown forensic profile obtained from crime scene evidence” (Allison Murray et al., Familial DNA Testing Current Practices and Recommendations for Implementation, 9 INVEST. SCI. J. 1, 2 [2017]). Instead of targeting convicted criminals whose DNA is already stored in the database, all of whom have been eliminated as suspects following an unsuccessful search for direct genetic matches, familial searching targets their siblings, parents and children, many of whom has never committed a crime. And familial searching can identify multiple people in the Databank who may be related to the perpetrator. “[F]amilial searches generate only leads, which in turn point to a list of possible suspects, all but one of whom definitely did not leave the evidence” (Erin Murphy, Relative Doubt: Familial
The use of familial searching as an investigatory tool was developed in the United Kingdom in the early 2000‘s, leading to the arrest and conviction of several violent criminals (Family Ties: The Use of DNA Offender Databases to Catch Offenders’ Kin, 34 J. L. Med & Ethics 248 [2006]). In 2009, California became the first state to expressly permit familial searching of its DNA database, followed by Colorado the next year. By 2014, after several other states had adopted familial search policies, the legislature in New York began to consider its use here. Bills to amend the DNA Databank Act to permit familial searching were proposed and submitted in the Assembly in 2014, 2015, 2016, 2017 and 2018, but none made it out of committee (see e.g., 2014 Assembly Bill 9247, 2015 Assembly Bill 1515). In the Senate, a bill to authorize the use of familial searching was introduced in December 2016 and then again in early 2017. The Senate approved the bill in February 2017 by a vote of 49-11 (S-2956A), but the bill, after delivery to the Assembly, died in committee (A-683).
Meanwhile, over in the executive branch, the Acting Commissioner of DCJS (the Commissioner) received a letter in December 2016 from the Queens County District Attorney requesting that the Commission authorize the use of familial searching of the DNA Databank. The District Attorney referenced the unsolved murder of a Howard Beach woman who was found to hаve male DNA under her fingernails, on her neck and on her cell phone. The genetic profile extracted from that DNA did not match any profiles in the state Databank, and the District Attorney wanted to know whether the perpetrator might instead be related to someone in the Databank.3
The DCJS Commissioner referred the request to the DNA Subcommittee, which held a joint public meeting with the Commission on February 10, 2017 to consider the use of familial searching of the Databank. Following that joint meeting,
On April 12, 2017, the Commission reviewed the proposed regulations and, after discussing various provisions at length, voted to send the regulations back to the Subcommittee with several proposed amendments. The Commission requested that the Subcommittee consider the suggested changes and make a “binding recommendation with regard to the issue of Familial Search; specifically the policy, regulations and implementation plan” (Commission Minutes, 4/12/17).
During a public meeting held on May 17, 2017, the DNA Subcommittee voted unanimously to “make a binding recommendation to the Commission on Forensic Sciences that New York State adopt the familial searching policy as it was amended, as well as the regulations and implementation plan that have been similarly revised to reflect the changes in policy” (Subcommittee Minutes, 5/17/17). The Subcommittee also made a binding recommendation to the Commission as to the level of kinship thrеshold that should be established when conducting a familial search. At that time, only one of the seven Subcommittee members resided in New York State.
On June 16, 2017, the Commission approved the Subcommittee‘s binding recommendations by a vote of 9-2.4 Notice of the proposed familial search regulations (FDS regulations), as drafted by the DNA Subcommittee, was published in the state register, thus commencing the statutory 45-day public comment period. According to the state register, the “[S]tatutory authority” for the proposed regulations was Executive Law sections 837 (13), 995-b (9) and 995-b (13). Following receipt of comments from supporters and opponents of familial searching, the FDS regulations became effective on October 18, 2017. The notice of adoption set forth in
I note that, although all states have had DNA databases since 1998, the vast majority do not allow familial searching. The legislatures in several states declined to approve bills to authorize familial searching, while Maryland and the District of Columbia have laws expressly forbidding its use (
IV.
In this proceeding pursuant to
In their joint answer, respondents asserted as an objection in point of law that petitioners lacked standing to challenge the FDS regulations because they have not suffered an injury-in-fact and are outside the zone of interests sought to be promoted or protected by the DNA Databank Act (see generally Matter of Mental Hygiene Legal Serv. v Daniels,33 NY3d 44, 52 [2019]). According to respondents, petitioners failed to establish an injury-in-fact because they have not been investigated by the police or otherwise suffered any actual harm because of the familial
V.
Although Supreme Court determined that petitioners have standing to sue, it dismissed the petition on the merits, finding that “the adoption of the Regulations were within the broad and ‘large scale’ delegation of authority from the Legislature to the Division in its enabling statute” (2020 NY Slip Op 300861 [U], 5 [Sup Ct NY County 2020]). Using the Boreali factors as a guide (see Boreali v Axelrod, 71 NY2d 1, 11-15 [1987]), the court further determined that respondents, in promulgating the FDS regulations, did not overstep their permissible rule-making authority and cross over into the legislature‘s policy-making domain. Finally, the court determined that the regulations have a rational basis and are not arbitrary and capricious.
In a 3-2 decision, the Appellate Division reversed and granted the petition (206 AD3d 88 [1st Dept 2022]). The majority agreed with Supreme Court that petitioners have standing but concluded that respondents lacked authority to adopt the familial search policy. Having so concluded, the majority did not address whether the regulations were arbitrary or capricious. The dissenters would have dismissed the petition on standing grounds alone, noting that “the regulations will not affect petitioners unless many rare conditions are all independently satisfied” (id., at 108 [Singh, J. dissenting]). This appeal ensued.
VI.
As a threshold matter, I agree with the majority that petitioners have standing to commence this proceeding. I add only that respondents’ argument with respect to standing—that the risk of petitioners being investigated by the police as a result of the familial search regulations is too remote and speculative to allow them access to the courts—would, if accepted, mean that the only people who could possibly have had standing to sue were those who were actually investigated by the police before the four-month statute of limitations period expired, which would be no one. That would be contrary to this Court‘s admonition that common-law standing rules should not be applied ” ‘in an overly restrictive manner where the result would be to completely shield a particular action from judicial
Respondents do not dispute that their position on standing would effectively close the courthouse doors to everyone who seeks to challenge the familial search regulations in an
But respondents assume that criminal defendants have standing to seek suppression of evidence obtained following disclosure to the police that they are related to someone in the Databank whose DNA is a partial match with forensic DNA, a position rejected by the Appellate Division (Stevens, 206 AD3d at 100-101). The only criminal court in New York to consider the legality of familial searching in the context of a suppression motion concluded that the defendant—who relied on the Appellate Division‘s determination in this case that the FDS regulations were unlawfully promulgated—lacked “standing to invoke the exclusionary rule to suppress the statements and the DNA evidence obtained because of the investigative efforts taken after the familial DNA search” (People v Williams, 77 Misc 3d 782, 785 [Sup Ct, Monroe County 2022]). Regardless, it would be incongruous if, as respondents assert, the only people who may challenge the legality of the familial search policy are those who have been charged with committing a heinous crime, while law-abiding citizens like petitioners have no such right.
To the extent that we may address petitioners’ third cause of action, alleging that the FDS regulations are arbitrary and capricious, I readily agree with the majority that it lacks merit.7 As can be seen from recordings of the various public meetings that are incorporated by reference into the record, members of the Cоmmission and the DNA Subcommittee carefully balanced competing policy considerations to formulate rational regulations allowing familial searching under limited circumstances subject to the approval of the DCJS Commissioner. Inasmuch as I agree with the majority on standing and the arbitrary and capricious cause of action, this appeal turns on petitioners’ cause of action alleging that respondents, in allowing familial searching, exceeded the scope of powers delegated to them by the legislature under the DNA Databank Act.8
It is well settled that “[a] governmental agency exceeds the scope of its delegated authority in promulgating a regulation when it engages in impermissible ‘legislative policy-making,’ as opposed to permissible ‘administrative rule-making’ ” (Matter of Independent Ins. Agents & Brokers of N.Y., Inc. v New York State Dept. of Fin. Servs., 39 NY3d 56, 69 [2022], quoting Boreali, 71 NY2d at 11). Because the line between policy-making and rule-making actions is often difficult to discern, this Court, for the past 35 years, has consistently used the Boreali factors as a guide to resolve challenges to administrative action (see e.g. Garcia v New York City Dept. of Health & Mental Hygiene, 31 NY3d 601, 609 [2018]; Matter of Acevedo v New York State Dept. of Motor Vehs., 29 NY3d 202, 222 [2017]; Matter of NYC C.L.A.S.H., Inc. v New York State Off. of Parks, Recreation & Historic Preserv., 27 NY3d 174, 179 [2016]).
The factors to consider under Boreali are “whether (1) the agency did more than balance costs and benefits according to preexisting guidelines, but instead made value judgments entailing
“Any Boreali analysis should center on the theme that ‘it is the province of the people‘s elected representatives, rather than appointed administrators, to resolve difficult social problems by making choices among competing ends’ ” (Matter of New York Statewide Coalition of Hispanic Chambers of Commerce v New York City Dept. of Health & Mental Hygiene, 23 NY3d 681, 697 [2014], quoting Boreali, 71 NY2d at 13).
Here, Supreme Court found that the Boreali factors weighed in respondents’ favor and concluded that the Commission did not engage in impermissible policy-making when adopting the FDS regulations. The Appellate Division disagreed, concluding that the Boreali factors overwhelmingly favored petitioners and that respondents exceeded their rule-making authority in allowing familial searching. Respondents contend that the Appellate Division erred in applying the Boreali factors as a guide to determining whether they had authority to promulgate the regulations. This is so, respondents reason, because the DNA Databank Act clearly grants them such authority, which should end the analysis. As petitioners point out, however, respondents failed to make that argument to the trial court. Indeed, respondents addressed the Boreali factors and argued that all four of them weighed in their favor.
The majority agrees with respondents that the Boreali factors do not inform our analysis, and it would “exile Boreali” (Matter of LeadingAge N.Y., Inc. v Shah, 32 NY3d 249, 282 [2018] [Wilson, J.,dissenting]) to an island of cases involving “exceedingly broad and nonspecific” grants of legislative authority (majority op at 10, n 3). The majority instead focuses its analysis exclusively on whether the legislature‘s grant of
With respect to the first Boreali factor, it is clear that members of the Commission and DNA Subcommittee, in adopting the FDS regulations, made value judgments on a wide spectrum of public policy issues. The decision to allow familial searching necessitated a balancing of many factors, including society‘s interest in solving serious crimes against the civil liberty interests of citizens to be free from unreasonable governmental intrusions. Of course, there is also a racial component to consider because the DNA Databank comprises a disproportionate number of African-Americans, meaning that a disproportionate number of African-Americans will likely be investigated by the police as a result of familial searching.
Moreover, although DNA of suspects investigated by the police will never enter the state‘s Databank unless they are ultimately convicted of a crime (see
The seminal point here is that the Commission, in deciding whether to approve the DNA Subcommittee‘s binding recommendation to adopt the FDS regulations, necessarily had to make value judgments with respect to the many and varied public policy considerations. The first factor thus militates heavily in favor of petitioners.
The second Boreali factor also favors petitioners inasmuch as the legislature, when it passed the
The third factor—whether the “legislature has unsuccessfully tried to reach agreement on the issue“—is, at best for respondents, a push considering that we are reluctant to draw inferences one way or the other from legislative inaction due to its ” ‘inherent ambiguity’ ” (Matter of Oswald N., 87 NY2d 98, 103 n. 1 [1995]; see Acevedo, 29 NY3d at 202). But the fact that the legislature considered bills to allow familial searching annually from 2014 through 2019 and failed to enact any of them into law certainly does not support respondents’ position, as they contend. With respect to the third factor, the Boreali Court stated: “The repeated failures by the Legislature to arrive at such an agreement do not automatically entitle an administrative agency to take it upon itself to fill the vacuum and impose a solution of its own” (71 NY2d at 13). That general principle is as valid today as it was back then, and is apropos here.
In sum, while acknowledging that the Boreali factors should not to be “rigidly applied in every case” and overlap to some degree (Matter of New York Statewide Coalition of Hispanic Chambers of Commerce v New York City Dept. of Health & Mental Hygiene, 23 NY3d 681, 696 [2014]), I conclude that they amply support the Appellate Division‘s finding that respondents did not engage in mere regulatory rule-making when promulgating the FDS regulations and instead made significant policy decisions reserved for the legislature.
VIII.
The majority does not seem to dispute that respondents engaged in policy-making by permitting familial searching of the DNA Databank. In the majority‘s view, however, the legislature delegated to the Commission the authority to do so, and the FDS regulations were therefore lawfully promulgated. To reach that conclusion, the majority focuses on the role of the Commission in approving the regulations and relies on various provisions of
I will first address the statutes cited in the state register as authorizing promulgation of the regulations.
Respondents’ brief does mention
But the legislative authorization required to permit the Commission, after a binding recommendation by the Subcommittee, to allow familial searching is a significantly broader authorization than that actually granted by the legislature, which was merely the authority to approve new testing methodologies. In establishing the Subcommittee, the legislature clearly intended to create a technical advisory committee, not a policy-making committee. The Subcommittee, however knowledgeable and experienced its members may be in matters relating to the science of DNA, is not the type of body that the legislature would entrust with authority to make significant policy decisions. For that reason, I conclude that
With that precept in mind, I agree with the Appellate Division that the decision of whether or not to allow a familial search does not fall within the Commission‘s grant of regulatory authority and remains with the legislature.
The majority, however, states that “[t]he Commission exists to promulgate standards, accreditation, and protect privacy” (majority op at 20, n 9). In so stating, the majority appears to take the position that, because the legislature tasked the Commission with protecting privacy in certain regards, the legislature authorized the Commission to expand the purpose of the Databank so that it could be used to intentionally target people who are outside the Databank and who have never been convicted of a crime. And as far as the protection of privacy is concerned, the
“ensure compatibility, to the extent consistent with the provisions of this article and any other applicable provision of law pertaining to privacy or restricting disclosure or redisclosure of information, with other state and federal forensic laboratories to the extent nеcessary to share and exchange information, data and results of forensic analyses and tests” (
§ 995-b [2] [d] ).
But that is it. There are no other provisions of the
The other provision that respondents and the majority rely on as demonstrating the Commission‘s authority to approve the FDS regulations is
Nor is authorization for the FDS regulations found in the Commission‘s mandate is to “develop minimum standards and a program of accreditation for all forensic laboratories in New York state” (
This leads to respondents’ contention that familial searching is not, in fact, a new use of the Databank and that it is not substantially different from partial matching, which was authorized by the Commission in 2010 (see
The fact that no one has challenged the partial matching regulations does not mean that they were lawfully promulgated. But even assuming, for the sake of argument, that partial matching is authorized under the
With familial searching, in contrast, the Databank is intentionally searched for non-matches (i.e., people who are not designated offenders). In fact, FDS regulations permit familial searching only after the search for a direct or partial match fails (see
Although
“In a May 2006 Science article entitled ‘Finding criminals through DNA of their relatives,’ the authors propose that if a crime stain does not
match anyone in the offender database that there is a chance that a relative might be in the database. Since relatives will have similar DNA to one another, loosening the search stringency to permit partial matches rather than full high-stringency matches (where every allele in an STR profile must match) may return a list of results that could include a brother or other close relative. This list of potential relatives could be narrowed through further testing with Y-chromosome markers, which would require all of the potential relatives plus the crimе scene sample to be examined with the additional genetic markers. In theory with this approach, the database is effectively enlarged to include close relatives of criminals whose profiles are already on the DNA database. “The United Kingdom pioneered this partial matching technique, better known as ‘familial searching,’ and has used it to solve a number of cases—but not without controversy. It is worth noting that during routine searches of a DNA database, partial matches can result from samples that have common STR alleles—particularly with moderate or low stringency searches. Generally speaking, a familial search is a second deliberate search looking for relatives” (John M. Butler, Fundamentals of Forensic DNA Typing 282 [2010]).
Inasmuch as a familial search means that a DNA database “is effectively enlarged to include close relatives of criminals whose profiles are already on the DNA database” (id.), even if only temporarily, we should expect that the legislature would have to authorize that temporary expansion of the database at issue here—i.e., the Databank—just as they have felt it necessary to authorize permanent expansions of the Databank in the past. But that is not what was done.Finally, I note that the term “match” is not defined in
I thus conclude that the Appellate Division properly granted the petition and annulled the FDS regulations as being promulgated “in violation of lawful procedure” (
Order reversed, with costs, and petition dismissed. Opinion by Chief Judge Wilson. Judges Garcia, Singas and Cannataro concur. Judge Lindley dissents in an opinion, in which Judges Troutman and Lynch concur. Judges Rivera and Halligan took no part.
Decided October 24, 2023