National Psychological Ass'n for Psychoanalysis, Inc. v. University of State of N.Y.

Decision Date25 May 1959
Citation18 Misc.2d 722,188 N.Y.S.2d 151
PartiesNATIONAL PSYCHOLOGICAL ASSOCIATION FOR PSYCHOANALYSIS, INC., Theodor Reik, Nandor Fodor, Edward Frankel, and Saul Gurevitz, Plaintiffs, v. UNIVERSITY OF THE STATE OF NEW YORK, Defendant.
CourtNew York Supreme Court

Lyman Stansky, New York City, for plaintiffs.

Louis J. Lefkowitz, Atty. Gen., of the State of New York (Philip Watson, Asst. Atty. Gen., of counsel), for defendant.

Pofcher, Schlussel & Katcher, New York City (Irwin E. Schlussel, New York City, of counsel), for American Association of Psychotherapists, Inc.

EDGAR J. NATHAN, Justice.

In this action for declaratory judgment, plaintiffs move for summary judgment to invalidate on constitutional grounds Article 153 of the Education Law, which provides for the certification of individuals representing themselves as psychologists. The Attorney-General cross-moves for judgment dismissing the complaint as insufficient in law.

Chapter 737 of the Laws of 1956 added to the Education Law sections 7601 through 7614, which comprise the Article here being challenged.

Section 7602 provides:

'Qualifications for psychologists

'After July first, nineteen hundred fifty-seven no individual shall represent himself as a psychologist within the meaning of this act of other than those certified and registered under the provisions of this act.'

Section 7601(2) provides:

'Definitions

'As used in this article:

* * *

* * *

'A person represents himself to be a 'psychologist' when he holds himself out to the public by any title or description of services incorporating the words 'psychological', 'psychologist' or 'psychology', and under such title or description offers to render or renders services to individuals, corporations, or the public for remuneration.'

In Section 7603, provision is made for the establishment of a state board of examiners of psychologists, consisting of seven members appointed by the Regents on the recommendation of the Commissioner of Education. This section clearly sets forth the qualifications, powers and duties of members of the board.

Section 7605 sets up standards of age, character, citizenship, education and experience for certification of those who pay a $40 fee and pass a satisfactory examination in psychology, the subject and scope of which is determined by the board of examiners, subject to approval by the Education Department. It also provides that for a prescribed period the board may waive examination for those having doctorate degrees from accredited institutions based on programs that are primarily psychological 'or the substantial equivalent thereof in both subject matter and extent of training', and having five years of professional experience. Similar waiver is provided for holders of Master's degrees, or the equivalent, having eight years of experience. Veterans are given additional time in which to apply for certification. This section was amended by L.1958, c. 854 to extend the time for waiver of examination and for certification of veterans for an additional year.

Other sections of the Article provide for: Establishment of an advisory council of twelve to eighteen members, 'broadly representative of psychology', to aid in formulation of policy under the Article (§ 7604); Biennial registration of certified psychologists (§ 7606); Revocation or suspension of certificates after notice and hearing before the Commissioner, with right of judicial review of any refusal to issue or renew certificates, as well as any revocation or suspension (§ 7607); Punishment for violation by prosecution for misdemeanor (§ 7608); Confidential communications between registered psychologist and client (§ 7611); Department supervision pursuant to Education Law, sec. 211 (§ 7613).

This action to declare the statute unconstitutional is brought by a New York membership corporation (hereafter referred to as the Association), organized for the advancement of psychoanalysis as a profession and as a science, and by four practicing psychologists who are members of the Association. A principal activity of the Association is the operation of a psychoanalytic institute or training program to prepare psychologists and other qualified persons to practice or teach psychoanalysis. Each of the individual plaintiffs has a Ph.D. in Psychology, or its equivalent, granted by a recognized European university; each has been a practicing psychologist in New York for at least ten years; and each is admitted to membership in reputable professional societies.

It appears that upon the effective date of the Article, all four individual plaintiffs fell into a small group of psychologists who, by reason of circumstances beyond their control, were unable to produce documentary evidence of their training abroad, as is required by the Education Department for certification. One of them has since produced credentials which enabled the Department to certify him, but the remaining three have not, and by the terms of the statute, they are prohibited from representing themselves as psychologists. It is stated, however, in the affidavit of the secretary of the board of examiners, that they 'have been granted amnesty' pending adoption of legislation introduced for their relief.

It is apparent on this motion, nevertheless, that there is a justiciable controversy between the parties as to the necessity for and the requirements of certification of the plaintiffs under the Act. That the complaint contains no words of art to that effect is not fatal, since the existence of the controversy appears from the pleading as a whole. An action for declaratory judgment is appropriate for determination of a constitutional question, and jurisdiction should be entertained pursuant to section 473 of the Civil Practice Act and rule 212 of the Rules of Civil Practice (Dun & Bradstreet v. City of New York, 276 N.Y. 198, 206, 11 N.E.2d 728, 731; Wingate v. Flynn, 139 Misc. 779, 249 N.Y.S. 351, affirmed 233 App.Div. 785, 250 N.Y.S. 917, affirmed 256 N.Y. 690, 177 N.E. 195; Tropp v. Knickerbocker Village, 205 Misc. 200, 122 N.Y.S.2d 350, affirmed 284 App.Div. 935, 135 N.Y.S.2d 618).

The voluminous affidavits, exhibits and memoranda submitted in support of plaintiffs' position express strong convictions against the wisdom and efficacy of the challenged legislation. That aspect of the argument is not for the court's determination, of course, and no opinion is expressed thereon. It is noted, however, that the Association is listed in the Governor's Memorandum on the law in question as one of the private organizations that had approved the bill (McKinney's 1956 Session Laws, p. 1684). Even if that does not result in estopping the corporate plaintiff from challenging the Article on constitutional grounds, it is a strong indication that the gravamen of the action here is not any infirmity in the law as written, but is solely an alleged invalidity in its administration. Mindful, however, of the rights of the individual plaintiffs who should not be deemed bound by any previous position taken by the Association, and mindful as well of the importance of the constitutional question to the entire profession, all the asserted grounds upon which the Article is challenged will be examined.

Plaintiffs recognize, of course, that under a proper exercise of the police power, the State may regulate occupations that affect the public health or welfare. They concede that the specific area of their activity, psychoanalysis and psychotherapy, if not every branch of psychology, is subject to such regulation. They contend, however, that Article 153 of the Education Law violates the due process and equal protection clauses of the Constitution, Const. art. 1, §§ 6, 11 in that (a) it fails to define psychology as a profession; (b) it fails to provide standards for compliance and delegates legislative authority to the administering agency; and (c) its provisions have no real relation to protection of the public health or welfare and are not reasonably calculated to eradicate the declared evil. They contend that enforcement of the law will deprive them of valuable property rights and will result in substantial injury to them in their reputation and practice.

In considering these contentions, a few basic tenets must be borne in mind. Every statute is presumed to be constitutional, and every intendment is in favor of its validity (Farrington v. Pinckney, 1 N.Y.2d 74, 78, 150 N.Y.S.2d 585, 590). A statute can be declared unconstitutional only when it can be shown beyond reasonable doubt that it conflicts with the fundamental law. Unless resort to every reasonable mode of reconciliation of statute with constitution has been explored and reconciliation has been found impossible, the statute will be upheld (In re Fay, 291 N.Y. 198, 207, 52 N.E.2d 97, 98; Tropp v. Knickerbocker Village, supra). Particularly, courts of first instance should not exercise transcendent power of declaring an act of the Legislature unconstitutional except in rare cases where life and liberty is involved and invalidity of the act is apparent on its face (In re 1175 Evergreen Avenue, City of New York, 158 Misc. 158, 284 N.Y.S. 16, affirmed 270 N.Y. 436, 1 N.E.2d 838; Bohling v. Corsi, 204 Misc. 778, 127 N.Y.S.2d 591, affirmed 306 N.Y. 815, 118 N.E.2d 823, appeal...

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