Kim v. Town of Orangetown

• Decision Date: 17 May 1971
• Citation: 66 Misc.2d 364,321 N.Y.S.2d 724
• Parties: Young W. KIM, Plaintiff, v. TOWN OF ORANGETOWN, Defendant.
• Court: New York Supreme Court

Page 724

321 N.Y.S.2d 724

66 Misc.2d 364

Young W. KIM, Plaintiff, v. TOWN OF ORANGETOWN, Defendant.

Supreme Court, Rockland County.

May 17, 1971.

Shapiro, Weingard, Rieber & Broudny, New York City, for plaintiff; by Jeffrey Weingard, New York City, of counsel.

William Snair, Orangeburg, for defendant.

LEONARD RUBENFELD, Justice.

In this action for a declaratory judgment, plaintiff moves for a preliminary injunction restraining the defendant Town of Orangetown, and its officers, agents and employees, from enforcing Town of Orangetown Local Law No. 1 of 1971, entitled 'Regulation of Pregnancy Termination Facilities'.

Plaintiff is a licensed physician engaged in the private practice of medicine and specializing in obstetrics and gynecology. He maintains one office in New York City and another at his home located in the hamlet of Tappan, Town of Orangetown. The latter facility is operated under a certificate of occupancy issued by the Office of Building, Zoning and Planning Administration and Enforcement of the Town of Orangetown. As a part of his practice, plaintiff has performed a number of justifiable abortional acts, most of them in his office in Tappan.

The ordinance complained of by the plaintiff and which he seeks to have declared unconstitutional, provides as follows:

'Chapter 38 of the Code of the Town of Orangetown, Article 1.

Section 38--1. Purpose. The purpose of this ordinance is to protect the public health, safety, morals and welfare of the people of the Town of Orangetown by establishing standards governing where or under what circumstances or controls justifiable abortions may be performed.

Section 38--2. Permitted Place. A regulation requiring the performance of justifiable abortional acts in a licensed and duly accredited hospital notwithstanding any other law, statute, ordinance or other regulation.

justifiable abortional acts as defined in the Penal Law of the State of New York, shall be performed only in a hospital duly licensed and accredited under the New York State Department of Health, and having equipment and facilities acceptable to the State Hospital Review and Planning Council, or in a suitably equipped and staffed facility administered by such hospital or in a suitably staffed and equipped facility having a hospital affiliation agreement acceptable to the State Hospital Council.

Section 38--3. Prohibition. If it is found that any building, except where authorized and permitted pursuant to Section 38.2 of this Chapter, is being utilized for and equipped with facilities for acts of abortion, the Director of the Office of Building, Zoning and Planning Administration and Enforcement shall notify the owner of the property or the owner's agent to cease and desist the use of said building. Such order and notice shall be in writing and may be served upon the person, firm or corporation to whom it is directed either, by delivering it personally to him or his agent or by posting the same upon a conspicuous portion of the building where the act is being performed.

Section 38--4. Violations and Penalties. In addition to any penalties as provided by State law, the person, firm or corporation who shall violate this article or fails to comply with any requirements thereof or with any notice, order or directive, shall be guilty of a misdemeanor, and any person, firm or corporation violating the same, upon conviction, shall be punished by a fine not exceeding One Thousand ($1,000.00) Dollars, and/or imprisonment not exceeding 15 days, or by both such fine and imprisonment; and each day such violation shall be permitted to exist shall constitute a separate offense.

The imposition of penalties herein prescribed shall not preclude the Town from instituting an appropriate action or proceeding in law or in equity to prevent the use of the building for the unauthorized and/or illegal act.

This Local Law shall take effect immediately.'

Essentially then, the ordinance appears to prohibit the performance of justifiable abortional acts in any building--including a doctor's office--except a hospital, a facility administered by a hospital, or a facility having a hospital affiliation agreement. The owner of an unapproved building which is being utilized and equipped with facilities for acts of abortion is subject to a punishment of 15 days imprisonment and a $1,000.00 fine for each day a violation of the ordinance is permitted to exist.

Turning to the question of its validity, it should be recalled at the outset that there is a presumption in favor of the constitutionality of a legislative enactment which applies as strongly to a municipal enactment as to one passed by the Legislature of the State. One who attacks the constitutionality of a municipal ordinance has the burden of establishing its invalidity beyond a reasonable doubt (Wiggins v. Town of Somers, 4 N.Y.2d 215, 218--219, 173 N.Y.S.2d 579, 581--583, 149 N.E.2d 869, 870--872; Defiance Milk Products Co. v. Du Mond, 309 N.Y. 537, 541, 132 N.E.2d 829, 830; Van Curler Corp. v. Schnectady, 59 Misc.2d 621, 626, 300 N.Y.S.2d 765, 772). In addition, although the dangers sought to be alleviated or prevented are not clearly indicated in the ordinance or in the papers submitted to the Court, ¹ there is a rebuttable presumption that there exists a factual basis and necessity, known to the Legislature, which supports the provisions of the enactment (Matter of Davis v. Board of Elections, 5 N.Y.2d 66, 69, 179 N.Y.S.2d 513, 515, 153 N.E.2d 879, 880; Wiggins v. Town of Somers, Supra, 4 N.Y.2d 218--219, 173 N.Y.S.2d 581--583, 149 N.E.2d 870--872). If any state of facts reasonably can be conceived that would sustain the ordinance, the existence of that state of facts at the time the law was enacted is to be assumed (Matter of Spielvogel v. Ford, 1 N.Y.2d 558, 562, 154 N.Y.S.2d 889, 891, 136 N.E.2d 856, 857, app. dism. 352 U.S. 957, 77 S.Ct. 362, 1 L.Ed.2d 316; 8 N.Y.Jur. Constitutional Law § 62). Plaintiff has failed, on this motion, to make out a showing that the ordinance is not reasonably related and applied to some actual and manifest evil and, therefore, the requested relief may not be granted on that ground.

Plaintiff's principal argument is that the ordinance is unconstitutional in that it 'is in conflict with and seeks to override the policy of * * * the Penal Law' as amended by Chapter 127 of the Laws of 1970.

Section 125.40 of the Penal Law provides:

'A person is guilty of abortion in the second degree when he commits on abortional act upon a female, unless such abortional act is justifiable pursuant to subdivision three of section 125.05'.

Section 125.45 of the Penal Law provides:

'A person is guilty of abortion in the first degree when he commits upon a female pregnant for more than twenty-four weeks an abortional act which causes the miscarriage of such female, unless such abortional act is justifiable pursuant to subdivision three of section 125.05.'

Subdivision 3 of section 125.05 of the Penal Law provides in pertinent part as follows:

"Justifiable abortional act.' An abortional act is justifiable when committed upon a female with her consent by a duly licensed physician acting (a) under a reasonable belief that such is necessary to preserve her life, or (b) within twenty-four weeks from the commencement of her pregnancy.'

If the ordinance is in conflict with these provisions of the Penal Law, then the ordinance must be declared to be unconstitutional. Article 9, section 2(c) (ii) of the New York State Constitution provides that 'every local government shall have power to adopt and amend local laws Not inconsistent with the provisions of this constitution or any general law. * * *' (emphasis added). Article 9, section 3(d)(1) defines a 'general law' as 'a law which in terms and in effect applies alike to all counties, all counties other than those wholly included within a city, all cities, all towns or all villages.' The Penal Law has been declared to be a general law within the meaning of the Constitution (People v. Conte, 64 Misc.2d 573, 575--576, 315 N.Y.S.2d 348, 351; Town of Babylon v. Conte, 61 Misc.2d 1055, 307 N.Y.S.2d 735; People v. Del Gardo, 1 Misc.2d 821, 827, 146 N.Y.S.2d 350, 356).

The primary method of determining whether an ordinance is inconsistent with the Penal Law is to see whether the local law prohibits anything which the state law permits (People v. Lewis, 295 N.Y. 42, 51, 64 N.E.2d 702, 704; Wholesale Laundry Bd. v. City of N.Y., 17 A.D.2d 327, 329, 234 N.Y.S.2d 862, 864, affd. 12 N.Y.2d 998, 239 N.Y.S.2d 128, 189 N.e.2d 623; People v. Del Gardo, Supra, 1 Misc.2d 824, 146 N.Y.S.2d 353). 'Where what would be permissible under the state law becomes a violation of the local law, the latter law is unauthorized (Jewish Consumptives' Relief Soc. v. Town of Woodbury, 230 App.Div. 228, 243 N.Y.S. 686, aff'd 256 N.Y. 619, 177 N.E. 165)' (Wholesale Laundry Bd. v. City of N.Y. Supra, 17 A.D.2d 330, 234 N.Y.S.2d 865). The Court believes that to be the case here. The State Penal Law specifically exempts from the criminal category all 'justifiable abortional acts' as defined, whether performed in a hospital or in the plaintiff's office, while the local law makes it a crime for the plaintiff to perform a justifiable abortion in his own office. ²

Moreover, the Court is of the opinion that the ordinance conflicts not only with the letter of the law, but also with the policy which induced the enactment of abortion reform legislation of the sweeping character here involved. Several bills had been introduced in the New York Legislature which were more restrictive than the bill finally enacted into law, including at least two bills which provided that non-criminal abortions could be performed only in hospitals (see summary of Senate Bill 3500, 1970, New York Legislative Record, p. S218, and Assembly Bill 8, Id. at p. A2). And shortly before the New York law was enacted, the State of Hawaii passed a law which is similar in...