filed commonwealth ofkentuc y [dec 3 0 20i3j
TRANSCRIPT
, FILED
COMMONWEALTH OFKENTUC Y [DEC 3 0 20i3J SUPREME COURT OF KENTUC Y SUP CLERK
CASE NO: 2011-CA-001798 REME COURT
BULLITT-COUNTY BOARD OF HEALTH
vs. From the Bullitt Circuit Court
The Honorable Rodney D. Burress, Judge Case No: ll-CI-00348
Kentucky Court of Appeals
2011-CA-001798
BULLITT COUNTY FISCAL COURT CITYOFMT. WASIDNGTON CITY OFSHEPHERDSVILLE CITY OF HILLVIEW CITY OF LEBANON JUNCTION CITY OF PIONEER VILLAGE CITY OF HEBRON ESTATES CTIY OF HUNTER'S HOLLOW AND CITY OF FOX CHASE
APPELLANT
APPELLEES
MOTION FOR LEAVE TO FILE BRIEF FOR AMICI CURIAE ON BEHALF OF THE AMERICAN CANCER SOCIETY, THE AMERICAN CANCER SOCIETY CANCER ACTION NETWORK, THE AMERICAN HEART ASSOCIATION, AMERICAN LUNG ASSOCIATION, AMERICAN LUNG ASSOCIATION OF THE MIDLAND STATES, AMERICANS FOR NONSMOKERS' RIGHTS, CAMPAIGN FOR TOBACCO-FREE KIDS, THE NATIONAL ASSOCIATION OF COUNTY AND CITY HEALTH OFFICIALS, THE NATIONAL ASSOCIATION OF LOCAL BOARDS OF HEALTH, FOUNDATION FOR A HEALTHY KENTUCKY, KENTUCKY HEALTH DEPARTMENTS ASSOCIATION, KENTUCKY PUBLIC HEALTH ASSOCIATION, KENTUCKY MEDICAL ASSOCIATION, KENTUCKY NURSES ASSOCIATION AND TOBACCO CONTROL LEGAL CONSORTIDM
Come the American Cancer Society, American Cancer Society Cancer Action Network,
American Heart Association, American Lung Association, American Lung Association of the
Midland States, AInericans for Nonsmokers' Rights, Campaign for Tobacco-Free Kids, The
National Association of County and City Health Officials, The National Association of Local
Boards .of Health, Foundation for a Healthy Kentucky, Kentucky Health Departments
Association, Kentucky Public Health Association, Kentucky Medical Association, Kentucky
Nurses Association and the Tobacco Control Legal Consortium and, pursuant to Rule 76.12(7),
Kentucky Rules of Civil Procedure, respectfully move the Court for leave to file the Joint Brief
for Amici Curiae tendered herewith.
Each of the proposed Amici has a very distinct interest in the ability of governmental
entities, such as Appellant Bullitt County Board of Health, to protect the public health.
Moreover, each of the Amici has a particular interest in studying and educating the public
regarding the adverse health consequences associated with exposure to secondhand tobacco
smoke. These known adverse health consequences provide the scientific basis for the Regulation
10-01 of the Bullitt County Board of Health. It is the validity of that Regulation that must be
determined by this Court in the pending appeal. Movants describe in more detail below the
particular interest each has in seeking leave to file the Brief for the Amici Curiae that is jointly
tendered with this Motion.
(1) and (2) The American Cancer Society Cancer Society Cancer Action Network
The American Cancer Society Cancer Action Network (ACS CAN) is the nonprofit,
nonpartisan advocacy affiliate of the American Cancer Society (ACS). Our shared mission is to
eliminate cancer as a major health problem. Decades ago, research by ACS helped establish the
scientific link between tobacco use and cancer, therefore ACS CAN advocates for tobacco
control policies at the federal, state, and local levels. ACS CAN supported the Bullitt County
Board of Health in its promulgation of this regulation, including testifying in public hearings on
the deadly nature of second-hand smoke.
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(3) The American Heart Association
The American Heart Association ("AHA") is a voluntary health organization that, since
1924, has helped protect people of all ages and ethnicities from the ravages of heart disease and
stroke. AHA is one of the world's premier health organizations, with local offices in all 50
states, as well as in Washington DC, and Puerto Rico. The association invests in research,
professional and public education, and advocacy so people across American can live stronger,
longer lives, free of cardiovascular disease and stroke.
(4) and (5) American Lung Association/American Lung Association of the Midland
States
The American Lung Association is the nation's oldest vohmtary health organization, with
volunteers and regions representing all 50 states and the District of Columbia. The American
Lung Association of the Midland States serves as the American Lung Association's regional
affiliate for Kentucky, Michigan, Ohio and Tennessee. Because secondhand smoke causes lung
cancer, COPD and other diseases, the American Lung Association has long been active in
research, education and public policy advocacy regarding the adverse health effects caused by
tobacco use and exposure to secondhand smoke, as well as efforts to pass and enforce
comprehensive smoke-free air lawslregulations.
(6) Americans for Nonsmokers' Rights
Americans for Nonsmokers' Rights ("ANR") is a national advocacy organization with
more than 8,000 members consisting of individuals and organizations. ANR promotes the
protection of everyone's right to breathe smoke-free air, educates the public and policy-makers
regarding the dangers of secondhand smoke, works to prevent youth tobacco addiction, and
tracks and reports on the adversarial effects.ofthe tobacco industry. Founded in 1976 and based
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in Berkeley, CaIifornia, ANR began by backing legislation to prohibit smoking in the workplace
and other enclosed public spaces. Since the early 1980s, ANR has supported clean indoor air
initiatives in more than 3,000 communities in the United States.
(7) Campaign for Tobacco-Free Kids
The Campaign for Tobacco-Free Kids is a non-profit organization that works to reduce
tobacco use and its deadly toll in the United States and around the world. It advocates for public
policies that prevent kids from smoking, help smokers quit and protect everyone from
secondhand smoke.
(8) The National Association of County and City Health Officials
The National Association of County and City Health Officials ("NACCHO") is the
national non-profit organization that represents the country's nearly 2,800 local government
public health departments. NACCHO provides education, information, research, and technical
assistance to local public health departments and facilitates partnerships among local, state, and
federal agencies to promote and strengthen public health. NACCHO engages actively in the
promotion of tobacco prevention and control policy and has a long history of supporting local
public health departments as they implement local measures to control the sale of tobacco and its
use. NACCHO also supports autonomy and authority for local governments as they take steps to
protect people in their communities from the well documented costs and health hazards
associated with tobacco use.
(9) The National Association of Local Boards of Health
The National Association of Local Boards of Health (''NALBOH'') informs, guides, and
is the national voice for local boards of health. Uniquely positioned to deliver technical expertise
in governance and leadership, board development, health priorities, and public health policy,
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NALBOH strives to strengthen good governance where public health begins-. at the local level.
For over 20 years, NALBOH has been engaged in establishing this significant voice for local
boards of health on matters of national public health policy, including tobacco use prevention
and control, while maintaining its grassroots in Bowling Green, Ohio.
(10) Foundation for a Healthy Kentucky
The Foundation for a Healthy Kentucky was established in May 2001 as a result of the
settlement agreement between the Commonwealth of Kentucky and Anthem, Inc. regarding the
conversion of charitable assets after Anthem's merger with Kentucky Blue CrosslBlue Shield.
Its mission is to address the unrnet health care needs of Kentuckians. The Foundation makes
grants, funds research and provides training and technical assistance to nonprofit organizations in
Kentucky, to promote lasting change in the systems by which health care is provided, for the
purposes of improving access to health care, reducing health risks and disparities, and promoting
health equity. The Foundation's current focus areas are: (1) Promoting Responsive Health
Policy: To make public policy more responsive to the health and health care needs of the people
of Kentucky; and (2) Investing in Kentucky's Future: To reduce the risk that today's school-age
children will develop chronic diseases as they grow to adulthood, by fostering evidence-based
and promising community initiatives.
(11) Kentucky Health Departments Association
The Kentucky Health Departments Association ("KHDA") was formed in 1984 through
the merger of the Kentucky District Health Departments Association and the Kentucky County
Health Departments Association. The Association was incorporated under Kentucky law in
1987. The association was formed for the following five purposes: (1) To promote better health
services. (2) To obtain and exchange information. (3) To investigate problem areas common to
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health department administration and suggest solutions. (4) To promote continuing education for
health department directors and employees. (5) To establish a framework for more effective
communication among health departments, state agencies, local agencies and other interested
parties. Local health departments in the Commonwealth of Kentucky are members of the
association and are officially represented by the department's Public Health Director or their
designee.
(12) Kentucky Public Health Association
The Kentucky Public Health Association, Inc. ("KPHA") was organized in 1949 as a
nonprofit, independent, voluntary organization. KPHA is in the capable position of confronting
critical issues relating to legislation at the local, regional, and state level. KPHA sponsors/co
sponsors workshops, seminars, and conferences relating to the personal and professional growth
and development of its members and other interested citizens. The Kentucky Public Health
Association is an affiliate of the Southern Health Association, and the American Public Health
Association.
(13) Kentucky Medical Association
The Kentucky Medical Association ("KMA") is a non-profit, non-stock membership
Kentucky corporation organized under KRS Chapter 273. Initially organized in 1851, the KMA
was first incorporated in 1929. The KMA currently includes among its membership
approximately 4500 physicians actively engaged in the practice of medicine in Kentucky.
Among its purposes is the enforcement of just medical laws, the protection of its members
against unjust encroachments on their professional care of patients, and the enlightenment of
public opinion with regard to matters of great import to Kentucky physicians and their patients.
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The KMA has for many years worked to educate the public about and protect the public
. from the devastating health and economic consequences oftobacco use. As recently as 2013, the
KMA's House of Delegates - its governing body represented by physicians from across the
Commonwealth - adopted policy that supports prohibition of smoking in public places including
restaurants, bars, hospital campuses and in motor vehicles with children and encourages
physicians to counsel patients about the health risks attributed to exposure to secondhand
smoke.
(14) Kentucky Nurses Association
Established in 1906, the Kentucky Nurses Association ("KNA") is the only full-service
professional organization for the state's entire nurse population. In addition to its role to promote
the essential role of the registered nurse in health care delivery, the Association serves as an
advocate for quality patient care in all settings. From the halls of Frankfort and state agencies to
boardrooms, hospitals and other health care facilities, the KNA is the strong voice for the nursing
profession in Kentucky.
(15) Tobacco Control Legal Consortium
The Tobacco Control Legal Consortium is a national network of non-profit legal centers
providing technical assistance to public officials, health professionals and advocates concerning
legal issues related to tobacco and public health. Among its other activities, the Consortium
supports public policies that will reduce the harm caused by tobacco use. l
lThe Consortium is based at the Public Health Law Center at William Mitchell College of Law in St. Paul, Minnesota. Affiliated legal centers include: ChangeLab Solutions, Oakland, California; Legal Resource Center for Tobacco Regulation, Litigation & Advocacy at University of Maryland School of Law, Baltimore, Maryland; Public Health Advocacy Institute at Northeastern University School of Law, Boston, Massachusetts; Center for Public Health and Tobacco Policy at New England Law I Boston; Smoke-Free Environments Law Project at Center
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The Amici listed above seek leave from this Court to file a single joint brief addressing
the scientific body of evidence that supports the Bullitt County Board of Health's determination
that the Regulation at issue was necessary to properly protect the health of its citizens. While the
tendered Brief for Amici Curiae touches on the determinative legal issues, the brief focuses on
the body of science that supports the adoption of the Regulation, which was invalidated by the
Court below. Accordingly, we urge the Court to grant leave to the above listed Amici to file their
tendered Brief for Amici Curiae.
Respectfully submitted,
,Jt l .; !) {!;xiT, C,V\..-G....L.. \ dw.~
MICHAEL J. O'HARA O'HARA, RUBERG, TAYLOR, SLOAN & SERGENT 25 Town Center Boulevard, Suite 201 Covington, KY 41017 Office: (859) 331-2000IFax: (859) 578-3365 ATTORNEY FOR AMICI
CERTIFICATION
The undersigned does hereby certify that copies of the Brief were served upon the following named individuals by first-class mail, postage prepaid, on this 27th day of December 2013: Judge Rodney D. Burress, PO Box 97, Shepherdsville, KY 40165; Monica Meredith Robinson, Bullitt County Attorney, 300 S. Buckman Street, Shepherdsville, KY 40165; Matthew Lemme, 275 Snapp Street, PO Box 285, Mt. Washington, KY 40047; Joseph J. Wantland, PO Box 515 Shepherdsville, KY 40165; Mark Edison, 216 S. Buckman Street, Shepherdsville, KY 40165; and Margaret A. Miller, Esq. and James T. Ams, Esq., 300 W. Vine Street, Suite 1100, Lexington, KY 40507.
MICHAEL J. O'HARA === O'HARA, RUBERG, TAYLOR, SLOAN & SERGENT
for Social Gerontology, Ann Arbor, Michigan; and Tobacco Control Policy and Legal Resource Center at New Jersey GASP, Summit, New Jersey.
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