51 A.D.2d 772 | N.Y. App. Div. | 1976
In an action inter alia to declare sections 2 through 10 of the General Business Law unconstitutional, plaintiffs appeal from (1) an order of the Supreme Court, Orange County, dated July 19, 1974, which (a) granted the separate motions of defendants Nelson Rockefeller, as Governor, and Louis J. Lefkowitz, as Attorney-General, for summary judgment and of defendants the County of Orange and Abraham J. Weiss-man, as District Attorney, to dismiss the complaint, and (b) dismissed the action as against all defendants, with prejudice, and (2) so much of a further order of the same court, dated August 30, 1974, as, upon reargument, adhered to its original determination. Appeal from order dated July 19, 1974 dismissed as academic. That order was superseded by the order of August 30, 1974. Order dated August 30, 1974 reversed insofar as appealed from, and motions denied. Plaintiffs are awarded one bill of $50 costs and disbursements, to cover both appeals, jointly against respondents appearing separately and filing separate briefs. The complaint contains several causes of action; the essential thrust of the complaint, however, is directed against the Sunday closing laws on the grounds that they are facially unconstitutional and that, as enforced, plaintiffs have been unconstitutionally discrimi
The Issues
In my view, the determinative issues in this case are (1) whether what Judge Wachtler, in his concurring opinion in People v Acme Markets (37 NY2d 326, 333) characterizes as the “polyglot of exceptions” contained in section 9 of the General Business Law, violates plaintiffs’ right to equal protection of the laws because the classifications there established have no rational relationship to the purpose of the law,
THE PRIOR PROCEEDINGS
A. THE COMPLAINT.
The lengthy, and by no means clearly drawn, complaint consists of six causes of action. The first alleges that plaintiffs were charged by some of the defendants with having violated the provisions of the General Business Law barring Sunday sales, that some of the plaintiffs were convicted of such violation in April, 1972 and that, thereafter, plaintiffs were threatened by those defendants that, if they again opened for business on any Sunday, and if a complaint were filed against them, plaintiffs would be prosecuted for those later violations and subjected to "the imposition of harsher penalties”, including confiscation, under section 12 of the General Business Law, of all plaintiffs’ goods, wares and merchandise offered for sale in violation of the law. The first cause of action then alleges that the statute involved is unconstitutional under the First and Fourteenth Amendments of the United States Constitution as a law interfering with the freedom of religion.
B. PRIOR CONVICTIONS OF PLAINTIFFS.
It appears from the affidavits in the record and the uncontradicted assertions in the complaint, that at least some of the plaintiffs were the subject of a prior prosecution for violation of the Sunday closing laws. In that prosecution they moved to dismiss the complaint, making contentions similar to those in this action. Before passing on their motions, the City Judge, in conformity with the procedure outlined in People v Utica Daw’s Drug Co. (16 AD2d 12), held a pretrial hearing to determine whether they had been the victims of discriminatory enforcement of section 9 of the General Business Law. The City Judge, based upon the uncontradicted testimony of the witnesses, found that many stores, both large and small, in
C. THE MOTIONS FOR SUMMARY JUDGMENT AND TO DISMISS THE COMPLAINT.
At Special Term, defendants, the County of Orange and the District Attorney of Orange County moved to dismiss the complaint, contending primarily that the issues raised therein were the same as those raised in the prior successful criminal prosecutions of plaintiffs and that, therefore, plaintiffs were foreclosed on those issues by "res adjudicata and/or collateral estoppel as to all issues now raised against the County of Orange and Abraham J. Weissman as District Attorney of the County of Orange.”
THE LAW
This case is still another example of the persistent nature of the economic, legal and social conflicts which have surrounded the existence and enforcement of the Sunday closing laws. An examination of the cases involving efforts to enforce or strike down those laws reflects not so much an interest in protecting the day-of-rest concept, which is supposedly the basis for such legislation (see McGowan v Maryland, 366 US 420), but rather a desire by one interest group to obtain for itself some competitive advantage over another interest group. Thus, in People v L. A. Witherill, Inc. (29 NY2d 446), the individuals who filed the information charging the Sabbath law violations against the defendant operator of a retail store, were "employees of rival stores” (id., p 448). In People v Genovese (24 NY2d 917), defendants, employees of a chain of drugstores, contended that the police enforced the-law only against their employer’s drugstores. In People v Utica Daw’s Drug Co. (16 AD2d 12, 13, supra), defendant maintained that the prosecution was part of a discriminatory design aimed at those engaged in "cut-rate” drugstore operations. In People v Paine Drug Co. (22 AD2d 156, 157-158, affd 16 NY2d 503), the complainants were the employees of "a group of prominent merchants in Rochester and environs—members of a Retail Merchants’ Council” who became "concerned with the general nonobservance of the Sabbath laws by certain of their competitors” and met with a group of public officials, including the Sheriff and District Attorney of the county, to request prosecution of violators. In People v Acme Markets (supra) it was the Amalgamated Meatcutters Union which sought to use the Sunday closing laws to protect the interests of its members working in supermarkets. Often those who seek to invoke the Sunday closing laws against those competing with them have sought to hide their self-interest in a cloak of concern for religious observance, or for the poor working man, but such deceptions should not be given credence by law enforcement agencies, or by the courts, for neither the agencies enforcing our criminal laws nor the courts should allow themselves to be thus used as cat’s-paws by those who seek to utilize the Sunday closing laws for their selfish competitive advantage. When prosecutors follow a policy with respect to enforcement of the Sunday closing laws of initiating criminal prosecutions for violations only on the complaints of private individuals, they become the tools of the private interest of the complainants and thus prostitute the State’s law enforcement power to the service of selfish private goals. In People v Acme Markets (37 NY2d 326, supra), a majority of five members of the Court of Appeals reached precisely that conclusion in dealing with an attack on a system of enforcement of the Sunday laws similar to that used in this case. There, the District Attorney of Erie County testified that, over a seven-year period, it was his policy not to prosecute Sunday sales law violations, but that if an arrest were made, i.e., if an information was filed, prosecution would follow. It was his view that active and general enforcement would deluge the already over-burdened courts and, he stated, he had no general enforcement plan for Sunday sales violations. There was also police testimony that it was the policy of the police in the area to act on Sunday sales violations only on complaints by private citizens. Thus, the enforcement pattern there was similar to that in this case. Judge Jasen, speaking for the court in Acme Markets, said of this pattern (p 331):
THE REMEDY
Since all defendants appearing herein now concede that there are no issues of fact to be tried, and since the attack on section 9 of the General Business Law is based solely on its claimed unconstitutionality, plaintiffs are entitled to a declaratory judgment and to injunctive relief, if that is needed to implement the declaratory judgment. If my analysis of the law and the facts is correct, the orders here under appeal, granting summary judgment to defendants and dismissing the complaint, should not only be reversed but, since the dispute between the parties is solely one of law, the situation is similar to that in Peoples Sav. Bank of Yonkers, v County Dollar Corp. (43 AD2d 327, affd 35 NY2d 836 on the opn below), where we held that CPLR 3212 (subd [b]) permits the court, on a summary judgment motion, to grant it instead to the movants’ adversaries even though the latter did not request such relief, and that the exercise of that right may take place even at the appellate level. Accordingly, the orders under review should be reversed and summary judgment should be granted to plaintiffs to the extent of (1) enjoining the Orange County defendants, including the District Attorney of the County of Orange, from enforcing the Sunday closing laws against plaintiffs, and (2) declaring section 9 of the General Business Law unconstitutional and void.
. Section 9 of the General Business Law provides: "Public traffic on Sunday All manner of public selling or offering for sale of any property upon Sunday is prohibited, except as follows: 1. Articles of food may be sold, served, supplied and delivered at any time before ten o’clock in the morning: 2. Meals may be sold to be eaten on the premises where sold at any time of the day; 3. Caterers may serve meals to their patrons at any time of the day; 4. Prepared tobacco, bread, milk, eggs, ice, soda water, fruit, flowers, confectionery, souvenirs, items of art and antiques, newspapers, magazines, gasoline, oil, tires, cemetery monuments, drugs, medicine and surgical instruments may be sold and delivered at any time of the day. 5. Grocers, delicatessen dealers and bakeries may sell, supply, serve and deliver cooked and prepared foods,
. There is now no doubt that Sunday closing laws do not violate the religious clauses of the First Amendment of the Constitution (see McGowan v Maryland, 366 US 420, 422, supra, and People v L. A. Witherill, Inc., 29 NY2d 446, supra) so that a discussion of that question is not germane to the issues before us.
. In their brief on this appeal, the County of Orange and the District Attorney of Orange County do not urge the res judicata collateral estoppel argument recognizable under the authority of a case such as Quaker Oats Co, v City of New York (295 NY 527, affd sub nom. Hill Packing Co. v City of New York, 331 US 787) (see, also, 903 Park Ave. Corp. v City Rent Agency, 31 NY2d 330). These defendants state that "in reaching a decision, this Court must consider the law as it is today and not as it was at the time of the decision in the lower court.” While there is no such concession by the Governor and the Attorney-General of the State of New York, there is no merit to the res judicata collateral estoppel conclusion for a number of reasons. In the first place, the decision by the City Court was rendered at a time when the Appellate Division had held that there was no selective enforcement in the Acme Markets case and, therefore, before the reversal of that decision by the Court of Appeals. Secondly, in every case of collateral estoppel, as Mr. Justice Hopkins said in Read v Sacco (49 AD2d 471, 473), "the question of fairness—an inherent element of due process—in the application of the doctrine must be the crowning consideration” and, as I said in Vincent v Thompson (50 AD2d 211, 218), "the collateral estoppel doctrine should not 'be applied rigidly’, and then only when the issue which has been decided in the prior action 'is decisive of the present action’ and that the litigant urging the applicability of that doctrine has 'the burden of showing that the issue was identical’ ”. Collateral estoppel cannot be indiscriminately applied and must be viewed in each case, on an ad hoc basis, to see that its invocation does not infringe upon basic fairness and due process.
. Even if the mootness claim had any validity, we should still decide the issues for, as the Court of Appeals said in Matter of Jones v Berman (37 NY2d 42, 57), "to