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People v. Roth

52 N.Y.2d 440 Court N.Y. Decision date 1981-04-02 English

Decision Majority — Per Curiam. · Concurring — Jones, J.

Contents

Majority

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The People of the State of New York, Appellant, v Samuel J. Roth et al., Respondents.
Argued February 10, 1981;
decided April 2, 1981
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POINTS OF COUNSEL
Robert Abrams, Attorney-General (Bonnie G. Wittner and Shirley Adelson Siegel of counsel), for appellant.
I. The legislative history of the Donnelly Act demonstrates that physicians who engage in a boycott are within its scope. (State of New York v Mobil Oil Corp., 38 NY2d 460 ; State of New York v Horsemen’s Benevolent & Protective Assn., 55 AD2d 251 ; American Med. Assn. v United States, 317 US 519 .) II. Precedents in this court support the People’s contention that physicians who engage in a boycott are not exempt from prosecution under the Donnelly Act. (Matter of Freeman, 34 NY2d 1 ; Matter of Gordon, 48 NY2d 266 ; Goldfarb v Virginia State Bar, 355 F Supp 491 , 497 F2d 1 , 421 US 773 ; United States v Oregon Med. Soc., 343 US 326 .) III. That the profession is regulated under the Education Law is irrelevant and confers no immunity from prosecution for an illegal boycott. (State of New York v Horsemen’s Benevolent & Protective Assn., 55 AD2d 251 ; People v Masiello, 177 Misc 608 , 271 App Div 875 ; National Soc. of Professional Engrs. v United States, 435 US 679 .)
James M. O’Brien and Kevin J. Murtagh for Frank Oliveto, respondent.
I. The indictment is insufficient, as a matter of law, since the acts allegedly done by defendant, Oliveto, do no constitute a violation of sections 340 and 341 of the General Business Law. (Matter of Freeman, 34 NY2d 1 ; Matter of Gordon, 48 NY2d 266 ; Goldfarb v Virginia State Bar, 421 US 773 ; Feminist Women’s Health Center v Mohammad, 415 F Supp 1258 , 586 F2d 530 ; Erie R. R. Co. v Tompkins, 304 US 64 ; Government of French Republic v Cabot, 190 Misc 517 .) II. Under the reasoning of Goldfarb v Virginia State Bar, defendants-
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respondents are not subject to prosecution. (Goldfarb v Virginia State Bar, 421 US 773 ; American Med. Assn. v United States, 317 US 519 ; Lucomsky v Palmer, 141 Misc 278 .) III. The indictment is dismissable as a matter of law on precedent — in addition it cannot be sustained by traditional concepts of antitrust law. IV. The record does not support the attacks of the honor of defendants.
John J. Tigue, Jr., Elliot Silverman, John L. Kase, James O. Drucker and Paula Schwartz Frome for Seth Kaufman, respondent.
I. The courts below correctly held that the Donnelly Act is inapplicable to the acts charged in the indictment. (Matter of Freeman, 34 NY2d 1 ; New York Clothing Mfrs.’ Exch. v Textile Finishers Assn., 238 App Div 444 ; Matter of Davies, 168 NY 89 ; Matter of Williams v Du Mond, 282 App Div 76 ; S-P Drug Co. v Smith, 96 Misc 2d 305 ; Goldfarb v Virginia State Bar, 421 US 773 ; United States v Container Corp., 393 US 333 ; American Column Co. v United States, 257 US 377 ; Feminist Women’s Health Center v Mohammad, 586 F2d 530 , 591 F2d 1343 ; Markham v Gray, 393 F Supp 163 , affd on other grounds sub nom. Markham v Anderson, 531 F2d 634 .) II. A holding that the Donnelly Act applies to the acts alleged in this indictment would constitute an unforeseeable retroactive expansion of criminal liability, in violation of the due process clause. (United States v Harriss, 347 US 612 ; Coates v City of Cincinnati, 402 US 611 ; Lanzetta v New Jersey, 306 US 451 ; Connally v General Constr. Co., 269 US 385 ; Matter of Pomeroy v Whalen, 44 NY2d 992 ; People v Smith, 44 NY2d 613 ; People v Phyfe, 136 NY 554 ; Matter of Consolidated Mut. Ins. Co. v Keepnews, 41 NY2d 982 ; United States v Laub, 385 US 475 ; Bouie v City of Columbia, 378 US 347 .) III. The Donnelly Act should not be construed so as to prohibit defendants’ constitutionally protected activity of petitioning the Legislature. (Eastern R. R. Conference v Noerr Motors, 365 US 127 ; Thomas v Collins, 323 US 516 ; First Nat. Bank of Boston v Bellotti, 435 US 765 ; Metro Cable Co. v CATV of Rockford, 375 F Supp 350 , 516 F2d 220 ; Wilmorite, Inc. v Egan Real Estate, 454 F Supp 1124 , 578 F2d 1372 , 439 US 983 ; Mine Workers v Pennington, 381 US 657 ; Franchise Realty Inter
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state Corp. v San Francisco Local Joint Executive Bd. of Culinary Workers, 542 F2d 1076 , 430 US 940 ; Feminist Women’s Health Center v Mohammad, 586 F2d 530 ; Lafayette v Louisiana Power & Light Co., 435 US 389 ; Mine Workers v Illinois Bar Assn., 389 US 217 .) IV. The Donnelly Act, if construed to prohibit the acts alleged in the instant indictment, imposes involuntary servitude on defendants in violation of the Thirteenth Amendment. (Bailey v Alabama, 219 US 219 ; Pollock v Williams, 322 US 4 ; Taylor v Georgia, 315 US 25 ; People v Lavender, 48 NY2d 334 .)
Harvey Paticoff for Joel Karen, respondent.
I. The Donnelly Act does not apply to the medical profession. (Matter of Hirschorn v Attorney-General of State of N. Y., 93 Misc 2d 275 ; Goldfarb v Virginia State Bar, 421 US 773 ; National Soc. of Professional Engrs. v United States, 435 US 679 ; American Med. Assn. v United States, 317 US 519 ; United States v Oregon State Bar, 385 F Supp 507 ; United States v Philadelphia Nat. Bank, 374 US 321 .) II. The doctrine of stare decisis excludes professions under the Donnelly Act. (Matter of Broderick v City of New York, 295 NY 363 ; Brooks v Horning, 27 AD2d 874 , 20 NY2d 760 ; People v Munoz, 40 AD2d 337 , 33 NY2d 998 ; American Med. Assn. v United States, 317 US 519 ; Matter of Gordon, 48 NY2d 266 ; Marsich v Eastman Kodak Co., 244 App Div 295 , 269 NY 621 ; Feminist Women’s Health Center v Mohammed, 586 F2d 530 .) III. There is no traditional antitrust concept and for that reason, too, the indictment was properly dismissed. (American Med. Assn. v United States, 130 F2d 333 , 317 US 519 ; United States v American Tobacco Co., 221 US 106 ; Standard Oil Co. v United States, 221 US 1 ; United States v Aluminum Co. of Amer., 148 F2d 416 ; United States v United Shoe Mach. Corp., 110 F Supp 295 ; United States v Griffith, 334 US 100 ; American Tobbacco Co. v United States, 328 US 781 ; People v Woman’s Christian Assn. of Jamestown, 44 NY2d 466 .) IV. The actions of defandant-respondent did not constitute a boycott. (State of New York v Horsemen’s Benevolent & Protective Assn., 55 AD2d 251 .)
Irving Anolik for Samuel J. Roth and others, respon
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dents.
I. The opinion and decision of Judge Santagata in the court below with respect to the applicability of the Donnelly Act to physicians is correct and should be affirmed. (National Soc. of Professional Engrs. v United States, 435 US 679 ; American Med. Assn. v United States, 317 US 519 ; United States v Oregon State Bar, 385 F Supp 507 ; United States v Philadelphia Nat. Bank, 374 US 321 ; Matter of Broderick v City of New York, 295 NY 363 ; Brooks v Horning, 27 AD2d 874 , 20 NY2d 760 ; People v Munoz, 40 AD2d 337 , 33 NY2d 998 ; Lee v Consolidated Edison Co. of N.Y., 98 Misc 2d 304 ; Matter of Gordon, 48 NY2d 266 .) II. While the courts below did not reach the question, we maintain that a violation of the Thirteenth Amendment and of the bill of attainder clause of the United States Constitution (bill of pains and penalties) is inherent in the argument of the Attorney-General that defendants-respondents were required to perform services for patients under the workers’ compensation program and the no-fault law. (United States v Lovett, 328 US 303 ; Whitney Stores v Summerford, 280 F Supp 406 , 393 US 9 ; People v Saffore, 18 NY2d 101 ; Matter of Freidus v Leary, 66 Misc 2d 70 ; Goldfarb v Virginia State Bar, 421 US 773 ; People v Lavender, 48 NY2d 334 .)
Jeffrey Weingard and Roy Broudny for S. Peter Ravitz and another, respondents.
I. The indictment was correctly dismissed on the ground that the Donnelly Act does not apply to the medical profession and, therefore, does not prohibit a purported combination of professionals which would restrain the furnishing of their own services. (Matter of Freeman, 34 NY2d 1 ; American Med. Assn. v United States, 317 US 519 ; Marsich v Eastman Kodak Co., 244 App Div 295 , 269 NY 621 ; Feminist Women’s Health Center v Mohammad, 586 F2d 530 ; Matter of Gordon, 48 NY2d 266 ; Engle v Talarico, 33 NY2d 237 ; Matter of Scheftel, 275 NY 135 ; Matter of Simonson v Cahn, 27 NY2d 1 ; Baden v Staples, 45 NY2d 889 ; Seider v Roth, 17 NY2d 111 .) II. Dismissal of the indictment is also required by the failure to state a violation of the Donnelly Act since it fails to contain the essential elements of either a mono-
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ply in the furnishing of medical services or a restraint in competition or the free exercise of any activity in the furnishing of medical services by the respective defendants. (Matter of Aimcee Wholesale Corp. [Tomar Prods.], 21 NY2d 621 ; State of New York v Horsemen’s Benevolent & Protective Assn., 55 AD2d 251 .) III. Dismissal of the indictment is also required because it is bottomed upon allegations constituting constitutionally protected First Amendment activity, including the right to free speech, assembly and petition. To the extent that the Donnelly Act may be construed as prohibiting such activity, the provision must be declared unconstitutional as applied herein. (Eastern R. R. Conference v Noerr Motors, 365 US 127 ; Mine Workers v Pennington, 381 US 657 ; California Transp. v Trucking Unlimited, 404 US 508 ; Feminist Women’s Health Center v Mohammad, 586 F2d 530 ; Sacramento Coca-Cola Bottling Co. v Chauffeurs, Teamsters & Helpers Local No. 150, Int. Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of Amer., 440 F2d 1096 ; Parker v Brown, 317 US 341 ; Mine Workers v Illinois State Bar Assn., 389 US 217 ; State of Mo. v National Organization for Women, 467 F Supp 289 , 620 F2d 1301 ; Lafayette v Louisiana Power & Light Co., 435 US 389 .) IV. Ample grounds exist for the court to conduct an in camera inspection of the Grand Jury minutes and, thereafter, to sustain the dismissal of the indictment for legal insufficiency and because it is predicated upon a defective Grand Jury proceeding. (People v Fielding, 158 NY 542 ; People v Percy, 45 AD2d 284 , 38 NY2d 806 ; Barns v Dairymen’s League Co-op. Assn., 220 App Div 624 ; Park & Sons Co. v National Wholesale Druggists’ Assn., 175 NY 1 ; Solomon v Houston Corrugated Box Co., 526 F2d 389 ; Scranton Constr. Co. v Litton Inds. Leasing Corp., 494 F2d 778 ; Scott Med. Supply Co. v Bedsole Surgical Supplies, 488 F2d 934 ; People v Gassman, 295 NY 254 ; Rochette & Parzini Corp. v Campo, 301 NY 228 .) V. The prosecution by the State of New York of defendant physicians for exercising their constitutional right not to participate in the workers’ compensation and no-fault programs, is violative of the Thirteenth Amendment’s prohibition against involuntary servitude. (Pollock
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v Williams, 322 US 4 ; Bailey v Alabama, 219 US 219 ; Matter of Freeman, 34 NY2d 1 ; People v Lavender, 48 NY2d 334 .) VI. Dismissal of the indictment is required because the State of New York unlawfully singled out defendants for selective and discriminatory prosecution based upon the constitutionally impermissible consideration that defendant physicians saw fit to actively participate in a public protest against the State mandated fee schedules in the workers’ compensation and no-fault programs. (United States v Falk, 479 F2d 616 ; People v Walker, 14 NY2d 691 ; People v Utica Daw’s Drug Co., 16 AD2d 12 ; People v Goodman, 31 NY2d 262 ; United States v Gillings, 568 F2d 1307 .)
Taylor R. Briggs and Thomas G. Rohback for the Medical Society of the State of New York, amicus curiae.
I. This court has held that the Donnelly Act does not apply to the learned professions. (Matter of Freeman, 34 NY2d 1 .) II. A fortiori the medical profession, like the legal profession, is not covered by the Donnelly Act. III. Additional legislative history demonstrates that the Legislature never intended the Donnelly Act to apply to the learned professions. IV. Federal case law cannot alter the intention of the New York Legislature in enacting the Donnelly Act. (Goldfarb v Virginia State Bar., 421 US 773 ; Hotel Edison Corp. v Taylor, 185 Misc 681 , 268 App Div 1029 , 295 NY 581 ; Marsich v Eastman Kodak Co., 244 App Div 295 , 269 NY 621 ; Columbia Gas Co. of N. Y. v New York State Elec. & Gas Corp., 28 NY2d 117 ; Feminist Women’s Health Center v Mohammad, 586 F2d 530 .) V. As a matter of sound judicial policy, the Freeman precedent should be respected. (Matter of Freeman, 34 NY2d 1 ; Bing v Thunig, 2 NY2d 656 ; Seider v Roth, 17 NY2d 111 ; Shaffer v Heitner, 433 US 186 ; Matter of Higby v Mahoney, 48 NY2d 15 .)

OPINION OF THE COURT

Defendants, all of whom are licensed physicians, were indicted under the Donnelly Act, which prohibits “combination [s] whereby * * * [c] ompetition or the free exercise of any activity in the conduct of any business, trade or commerce or in the furnishing of any service * * * is or may

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be restrained” (General Business Law, § 340). Specifically, it was alleged that defendants had violated this statute by organizing a group boycott and concertedly refusing to furnish professional services to nonemergency workers’ compensation and no-fault insurance patients. The boycott was ostensibly organized as a means of protesting the low fee schedules established by law for these plans.

Defendants promptly moved to dismiss the indictment, asserting, among other grounds, that combinations among licensed professionals involving the provision of professional services are exempt from the proscriptions of the Donnelly Act. County Court granted the motion after concluding that our decision in Matter of Freeman ( 34 NY2d 1 ) mandated adoption of defendants’ position. The Appellate Division unanimously affirmed, without opinion. Because we agree that Matter of Freeman (supra) is dispositive of the issue presented by defendants’ motion, we now affirm the decisions below.

In Freeman, we were asked to consider whether a minimum fee schedule adopted by a County Bar Association constituted a violation of the Donnelly Act. After examining the language and legislative history of the act, we held that it was simply not intended to apply to the legal profession (34 NY2d, at p 9). Since we can discern no principled basis for distinguishing between the legal profession and the medical profession, at least for purposes of the Freeman rule, we are obliged to conclude that the medical profession is similarly insulated from liability under the Donnelly Act.

It has been suggested that the recent decision of the Supreme Court in Goldfarb v Virginia State Bar ( 421 US 773 ) requires a re-examination of our categorical ruling in the Freeman case. We cannot agree. The Goldfarb court merely held that the language and legislative history of the Federal antitrust laws did not support the conclusion that Congress intended to exempt the learned professions from the strictures of the Sherman Act (421 US, at pp 786-788). As we noted in Freeman, the ruling of a Federal court interpreting a Federal statute has no direct bearing upon a State court’s analysis of an analogous provision enacted by the State Legislature (34 NY2d, at p 7).

Concurrence

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Of course, it could be argued that the Goldfarb analysis represents the more “modern” view of the relationship between the antitrust laws and the learned professions and that, accordingly, we should re-examine our own State antitrust statutes in light of that decision. Such an argument, however, cannot seriously be maintained in the face of the clear language in Freeman, which indicates that our decision in that case rested not upon general policy considerations, but rather upon a specific analysis of the legislative history underlying the Donnelly Act and the intent of our own State Legislature in enacting that statute. Inasmuch as nothing has occurred since Freeman was decided which would suggest that we were mistaken in that analysis, we can see no sound reason to abandon the Freeman rule merely because a Federal court has reached a different conclusion about an analogous Federal statute (cf. Monell v New York City Dept. of Social Servs., 436 US 658 , overruling Monroe v Pape, 365 US 167 ).[1]

Accordingly, the order of the Appellate Division should be affirmed.

(concurring). I agree that there should be an affirmance but not on the ground that the allaged conduct of defendant physicians does not fall within the proscription of the Donnelly Act (General Business Law, § 340). In my view, while at least certain activities of members of the medical and other professions should now be held to come within the embrace of our State statute, constitutional principles preclude the prosecution of the physicians charged in this instance.

I am impelled to dissent from the conclusion that the

* Indeed, in Freeman we specifically noted our awareness that the Federal District Court in the Goldfarb case had reached the conclusion that the learned professions are not exempt from regulation under the Federal antitrust laws ( 355 F Supp 491 ). We expressly declined to follow the Goldfarb holding, however, noting that the question presented in Freeman was strictly a matter of the proper interpretation of a State statute (Matter of Freeman, 34 NY2d 1 , 7, supra). All that has occurred in the seven years since Freeman was decided is the Supreme Court’s decision upholding the ruling of the District Court in the Goldfarb case ( 421 US 773 , supra). That ruling, however, is no more persuasive now on the question of the proper application of the Donnelly Act than it was when we first addressed the question in Freeman.

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Donnelly Act is inapplicable because I think the majority ignores the basal legislative intent disclosed in the history of the 1957 revision of that statute as identified and underscored in our decision in State of New York v Mobil Oil Corp. ( 38 NY2d 460 ), as well as the now controlling significance of the decision of the United States Supreme Court in Goldfarb v Virginia State Bar ( 421 US 773 ). I recognize that in Matter of Freeman ( 34 NY2d 1 ) our court, after a careful examination of the language and legislative history of our State statute, concluded in 1974 that the legal profession was exempt from any application of the Donnelly Act. I also perceive no significant legal difference between the medical profession and the legal profession for present purposes. But acknowledgment of these two propositions does not dictate the disposition of the appeal now before us. At the time of our decision in Freeman there had been no final, authoritative decision as to whether the Federal antitrust laws applied to the professions. After the Supreme Court’s decision in Goldfarb in 1975, however, it is clear that the professions are not wholly exempt from the Federal antitrust laws.

What is now known as the Donnelly Act was initially adopted in 1893. Our present focus, however, must be on the major revision of the statute enacted in 1958; the statute today is virtually the product of the 1957 redrafting based in large part on a report of the Special Committee to Study the New York Antitrust Laws of the New York State Bar Association. A reading of its report can leave no doubt that it was the intention of that committee that our Donnelly Act should be considered the mirror counterpart of the Federal Sherman Act and that interpretations of the former were to be guided largely by interpretations and applications of the latter. Portions of the committee’s report[1] are illustrative. For instance, at p 10: “The changes which we advocate are designed merely to simplify and not to alter in any respect the coverage and meaning of the statute save to make clear that it relates to all subjects of commerce, or in other words, that it embraces the same economic activi

1 (NYS Bar Assn., Section on Antitrust Law, Report of the Special Committee to Study the New York Antitrust Laws [1957].)

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ties as the Sherman Act.” (Emphasis in original.) Not only is it evident that the drafters intended the State courts to consider Federal antitrust principles as they existed in 1957, it is equally clear that they intended and expected that the Donnelly Act would be interpreted compatibly with future interpretations of the Sherman Act. Indeed, the special committee stated that expectation as one of the reasons it considered it unnecessary to substitute the wording of the Sherman Act for the diction of the Donnelly Act.[2]

Subsequent to our decision in Freeman, we explicitly recognized this principle of counterpart conformity (State of New York v Mobil Oil Corp., 38 NY2d 460 , 463, supra; see, also, Matter of Aimcee Wholesale Corp. [Tomar Prods.], 21 NY2d 621 , 626). It was the dissent in Mobil Oil which unsuccessfully contended for an independent construction of our State statute. While it would unquestionably lie within the competence of our State Legislature to adopt antitrust proscriptions at variance, large or small, with the provisions of the Federal statutes, there is no ground to conclude that such was in fact the intention of the Legislature nor has any rational elucidation been advanced in this instance for any such disparity. Indeed, with the continual constriction of the areas of commercial activity held to be of intrastate dimension only and the increasing Federal-State nexus in both the provision and the financing

2 Upon consideration of the substantive adequacy of the Donnelly Act, the special committee wrote: “The Committee finds New York law substantively adequate for the task at hand. However, in contrasting state and federal law one is struck by the verbosity, turgidity and complexity of the New York legislative language. Were we to start from scratch, in order to avoid placing businessmen in the dilemma of having to comply with conflicting standards, we might urge the use of identical wording in both state and federal statutes. * ** V “But the Donnelly Act has been on the books for close to sixty years and the substitution of Sherman law wording would produce more confusion than it would allay. Moreover, the state decisions seem to rest on the same fundamental concepts as does the federal law, and the differences between state and federal jurisprudence are insubstantial. In the few instances where the state law seems to diverge from federal, the state decisions are often generations old. Should the same issues arise again, they would presumably be decided in the light of modern antitrust concepts which have been developed federally. “For these reasons we find no need for legislative alteration of any of the doctrines developed by the New York courts.” (Report, at p 8.)

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of medical care services, no sound reason is perceived for the application of differing antitrust standards under State and Federal statutes; sound reason would dictate parallel application of the two similar statutes.

Respect for the basic requirement of parallel statutory construction did not dictate any particular result when Freeman was before us. At the time of that appeal there had been no definitive decision with respect to the application of the Sherman Act to the professions.[3] Now there has been.[4] This is not, as the majority would characterize it, an instance in which “the ruling of a Federal court interpreting a Federal statute has no direct bearing upon a State court’s analysis of an analogous provision enacted by the State Legislature” (majority opn, at p 447). Acceptance of any rubric that the dogma of stare decisis mandates slavish adherence to a State court application of the Donnelly Act which by happenstance antedates but later proves to have been at variance with a subsequent definitive construction of the Federal antitrust statute by the Supreme Court would, pro tanto, vitiate the fundamental counterpart conformity principle which was at the heart of the 1957 revision of the Donnelly Act.

Matter of Freeman ( 34 NY2d 1 , supra) should, therefore, be expressly overruled and total exemption from the

3 In earlier cases there had been opinions which intimated that members of the medical profession might be within the ambit of the Federal antitrust laws (United States v Oregon Med. Soc., 343 US 326 ; American Med. Assn. v United States, 317 US 519 ). It is worth noting that the report of the special committee in 1957 cites both of these cases in comparing the text of the Donnelly Act, which prior to the 1957 revision was couched in terms of described activities with that of the Federal antitrust statute, observing that “[t] he Sherman Act, on the other hand, is not limited in application to specific articles or services. Advertising, investment banking, insurance, medicine, are all within its reach” (Report, at p 23a; emphasis added).

4 Goldfarb and its progeny have firmly established that “The nature of an occupation, standing alone, does not provide sanctuary from the Sherman Act” (421 US, at p 787). Since Goldfarb, the Federal courts have consistently reaffirmed that the professions fall within the ambit of the Sherman Act. (See, e.g., National Soc. of Professional Engrs. v United States, 435 US 679 ; Virginia Academy of Clinical Psychologists v Blue Shield of Va., 1980-2 CCH Trade Cases, par 63,395 [4th Cir]; Arizona v Maricopa County Med. Soc., 1980-1 CCH Trade Cases, par 63,239 [9th Cir], cert granted 49 USLW 3663 ; Boddicker v Arizona State Dental Assn., 549 F2d 626 ; Ballard v Blue Shield, 543 F2d 1075 .)

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proscriptions of the Donnelly Act be denied the members of the medical profession. It would suffice for present purposes to hold that the conduct here alleged (organization of a group boycott and concerted refusal to furnish professional services to nonemergency workers’ compensation and no-fault insurance patients as a means to protest low fee schedules established by law for such services — a blatant effort to advance the economic self-interest of members of the medical profession) falls within the scope of the Donnelly Act prohibitions. Recognizing, as did the Goldfarb court, that professional activities may be considered for antitrust purposes under a slightly different standard from that applicable to businesses (421 US, at p 792), we would not find it necessary to reach or consider whether there might not be certain combinations that, while restraining the free rendering of medical services, would nonetheless be exempt from both Federal and State antitrust law proscription because they were grounded in legitimate professional rather than economic objectives (for instance, enforcement of a requirement that for certification of physicians as specialists they continue their training under Continuing Medical Education [“CME”] programs — to use the illustration tendered by the Attorney-General).[5]

Notwithstanding that I would overrule Freeman and reject the holding in that case as requiring a dismissal of this indictment, I would nonetheless affirm the order of the Appellate Division and uphold the dismissal of the indictment as against these defendants on constitutional grounds. Inasmuch as our decision in Freeman was a very clear statement of the inapplicability of this State’s antitrust laws to the professions, as a matter of fundamental justice it cannot be said that the individual defendants in this case acted at their peril in relying on a prior holding of this court. To hold the Donnelly Act applicable to the activities alleged in this indictment would run afoul of the fair warning requirement set down by the United States Supreme

5 Indeed in Freeman we acknowledged that price-fixing arrangements the primary purpose of which would be to produce a certain minimum financial reward to individual members of the legal profession might fall into a different category (34 NY2d, at p 11).

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Court in Bouie v City of Columbia ( 378 US 347 ) (cf. Marks v United States, 430 US 188 ).[6]

Chief Judge Cooke and Judges Jasen, Gabrielli and Wachtler concur in Per Curiam opinion; Judge Jones concurs in a separate opinion in which Judge Fuchsberg concurs; Judge Meyer taking no part.

Order affirmed.

6 Additionally, it might have been that, at later stages of the criminal action, if the indictment were now to be sustained, a defense would have been available under section 15.20 of the Penal Law. Subdivision 2 provides: “A person is not relieved of criminal liability for conduct because he engaged in such conduct under a mistaken belief that it does not, as a matter of law, constitute an offense, unless such mistaken belief is founded upon an official statement of the law contained in * * * a judicial decision of a state * * * court”.

Cases cited

Statutes and regulations cited