, 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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