Past Legalization Efforts
Lawsuit against Mayor Giuliani and the Department of Health
Our Notes on Judge Braun's Ruling


What follows is our summary of Judge Braun's ruling on June 1, 2000. Please bear in mind that we are not lawyers and this summary is simply our understanding of the ruling.

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For anyone who isn't familiar with legal terms, "the Plaintiffs" in this case are our side (the Ferret Owners). "The Defendants" are Mayor Giuliani, the Department of Health and the Commissioner of Health.


In the first part the judge announces that the DOH lawyer tried to file an amendment to one of her documents by writing a letter and that a letter was not the appropriate way to file an amendment. He asked the plaintiffs' lawyer if he had any objection to her re-filing it the correct way right then and there, and the lawyer said he had no objection. Then they took a short break to allow her to do that. After the break, the judge confirmed for the record that the supplemental affirmation had now been filed. Then he continued...

The judge stated that the plaintiff had originally moved for a preliminary injunction (which would prevent the DOH from enforcing the ban pending the outcome of the lawsuit).

He also stated that the DOH had filed a cross-motion to dismiss the case but that because of the way it was filed, the motion to dismiss was not the appropriate motion. Based on the way it was presented, the appropriate motion should have been a motion for summary judgment. As the judge, he had the power to change the motion to the correct one and with no objections from the lawyers, he had done so. So the DOH's motion to dismiss was changed to the motion for summary judgment.

The judge confirmed that the DOH's motion to dismiss was originally based on only two grounds:

  1. failure to state a cause of action and
  2. standing

and stated that therefore the court would only base its summary judgment on those two grounds.

The judge stated that the Court is limited in what it can do regarding those two motions (the plaintiffs' motion for the preliminary injunction and the DOH's motion for summary judgment -which was previously the motion to dismiss).

He defined that this was a case in which the DOH had passed a rule (the ban) interpreting a regulation and that the DOH had determined that insofar as NYC is concerned, ferrets were considered to be wild animals.

The judge stated that the DOH or the city council were the ones who had the authority to determine if this ban was appropriate.

When reviewing an administrative regulation such as this, the judge has to determine whether the regulation has a rational basis or whether it is unreasonable, arbitrary or capricious. However, if it is determined that the agency (in this case the DOH) is acting in its area of "supposed" expertise, the judge must give their decision a high level of deference -meaning that in most instances the court must defer to their judgment and their presumed expertise.

If someone wants to nullify a regulation, they must show that the regulation is unreasonable and unsupported by any evidence.

In order for the plaintiffs to be granted their preliminary injunction (again, the "preliminary injunction" would prohibit the DOH from enforcing the ban pending the outcome of the lawsuit), the judge needs to be convinced that they will succeed in their case against the DOH by proving the things mentioned above. Based on those standards, he did not believe that the Plaintiffs were likely to win in court since (he emphasized again) based on the standard already set by the Court of Appeals, the plaintiffs had to show that the DOH's regulation was unsupported by any evidence, not some evidence or insufficient evidence. The judge reminded everyone that the Court's power was limited and that it could only make its decision based on those pre-established standards.

The judge also stated that ferrets being legal in the rest of NY state did not automatically mean that the City law must be the same. It is true that this would be the case if the state specifically stated or implied that its law must supercede local laws. However, the state has not made that specific statement with regards to ferret legalization and the NYC ban. If the state had done so, the city would have had to conform its local law to match the state's law. But, the state had not made such a statement with regards to ferret legalization nor did it seem likely that they had any plans to do so.

The judge stated that based on the New York City Charter the Department of Health and Board of Health have the power to act to protect the public health within the field of the jurisdiction of that agency. He believed that, with regards to the standards mentioned above, the DOH had acted within their field of jurisdiction here.

As a result, the plaintiffs' motion for a preliminary injunction was denied, and with it, the temporary injunction was no longer in effect.

Then the judge went on to discuss the DOH's cross motion to dismiss which was converted to the motion for summary judgment. He stated that their motion was granted but ONLY as it applied to the Humane Society as a plaintiff. He did not find that the Humane Society had any reason to be a plaintiff in this lawsuit and said that the plaintiffs did not file a specific statement opposing the removal of the Humane Society.

The judge then stated that the DOH did not submit sufficient evidence for him to award them complete summary judgment and dismiss the entire case.

Apparently, the DOH submitted affidavits in which they referred to other documents from previous cases. These documents would have supposedly shown that there was sufficient reason to institute the ban and would have worked against the remaining plaintiffs (who had to prove -as stated earlier- that the DOH's decision was unsupported by any evidence). However, the DOH did not actually attach or submit those documents, they just referred to them.

Since it had already been determined that the motion for summary judgment was not a motion for complete summary judgment, but only for a summary judgment on the two grounds the DOH had raised earlier as reasons to dismiss the case,
-Again, those two grounds were:

  1. failure to State a cause of action and
  2. standing

and since the DOH had not officially submitted sufficient evidence to support their decision, the judge said that his decision for summary judgment would be limited to the issue of "standing" as it related to the Humane Society remaining as a plaintiff.

As to the DOH's claim that the plaintiffs failed to state a cause of action, (the other grounds on which they sought to have the case dismissed), the judge stated that the plaintiffs absolutely did state a cause of action, so the lawsuit could not be dismissed on those grounds.

The judge reminded everyone again that he was bound by the precedents set by rulings in similar cases from the past (and he named those specific cases throughout his decision) and that as a result there was a limit to what he could legally rule on in this type of proceeding as well as strict guidelines as to what he was allowed to consider to determine those rulings.

The judge then stated:

"The Court does find it distressing that there appears to be evidence on the plaintiffs' behalf that the plaintiffs, as pet owners, in this case a particular type of pet which has been domesticated, I believe the plaintiffs have shown for centuries, if not millennia, are being treated differently from other owners of domesticated pets such as dogs and cats and are potentially being barred by the defendants from continuing to own those pets. And anyone who has been a pet owner, and this Court has been, although not of a ferret, pets are members of the human owners' families.

It is distressing that therefore the City is attempting to enforce by way of this regulation their power to regulate this pet ownership as a matter of public health and take away these pets. "

However, he restated that the DOH has the power to act in a manner to protect the public, and since that is what they claim to be doing in this instance, they are within their rights to do so (until it is proven otherwise and the ban is officially lifted.)

Again he stated that since they appeared to be acting in their area of presumed expertise, and since their decision appeared to be supported by some evidence, the courts could not intercede.

Due to the restrictions placed upon the court with regards to overturning a regulation such as this, he stated that the DOH and the City Council were really the only two governing bodies that had the true authority to change the ban.

The judge concluded his ruling by restating that

"the motion for summary judgment is granted to the extent of dismissing the complaint of The Humane Society of New York, and the motion for a preliminary injunction is denied."

After the judge gave his decision, he explained that the court system gets restructured from time to time and judges get shifted around. During the most recent restructuring in January of this year, he was shifted from being a "city part" judge to a "general part" judge. Due in part to that restructuring and also to a heavy caseload, he would not be able to continue with this case. Therefore the lawsuit will be transferred to an appropriate judge for this type of case which he believed would either be a "city part judge" (which is what he was before the restructuring), or an "administrative law part" judge.

He wished both parties the best of luck, and the proceedings ended.


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