The opinion of the court was delivered by: MICHAEL B. MUKASEY
MICHAEL B. MUKASEY, U.S.D.J.
Plaintiffs seek a declaratory judgment that the New York State milk pricing law, N.Y. Gen. Bus. Law § 396-rr (McKinney 1992), is so vague as to violate the Due Process Clause of the United States Constitution. Defendant moves to dismiss plaintiffs' complaint for failure to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6). Alternatively, defendant requests that this Court abstain from ruling on the validity of the milk pricing law. For the reasons stated below, defendant's request for abstention is granted.
Plaintiff The Greater New York Metropolitan Food Council is a New York trade organization whose members include numerous retailers who sell milk, among other products, in New York. (Compl. P 3) Plaintiff Sloan's Supermarkets Inc. is one such retailer. (Compl. P 4) Defendant Richard T. McGuire is the Commissioner of the New York State Department of Agriculture and Markets, the administrative agency charged with regulating the milk industry in New York. (Compl. P 5)
Plaintiffs challenge Section 396-rr of the New York General Business Law (the "milk pricing law"), under which a retailer who sells milk for an amount greater than an unspecified price incurs a risk of examination, prosecution, and civil penalties. N.Y. Gen. Bus. Law § 396-rr (McKinney 1992) ("G.B.L. § 396-rr"). Section 396-rr is a tiny portion of the vast 100 page-plus statutory scheme which regulates the sale of milk in New York. See, e.g., N.Y. Gen. Bus. Law § 396-r; N.Y. Agric. & Mkts. Law § 256 (entry, inspection and investigation), § 256-a,b (audits and accounting), § 257 (licensing), § 258-1 (bargaining agencies), § 258-m (fixing prices), § 258-o,q (sanitation and inspection), § 258-r (advertising). Several courts have upheld portions of this scheme. See Nebbia v. New York, 291 U.S. 502, 78 L. Ed. 940, 54 S. Ct. 505 (1934) (upholding regulation of milk prices); Noyes v. Landel, 18 N.Y.S.2d 676, aff'd, 259 A.D. 1108, 21 N.Y.S.2d 616 (1940) (holding that milk control law protects all producers from hazards, distributes burdens equally, and does not violate due process); cf. People v. Two Wheel Corp., 128 A.D.2d 507, 512 N.Y.S.2d 439 (2d Dep't 1987), aff'd, 71 N.Y.2d 693, 530 N.Y.S.2d 46, 525 N.E.2d 692 (1988) (upholding prohibition of "unconscionably excessive" prices during certain market disruptions). The milk pricing law took effect on May 2, 1991.
Plaintiffs filed their complaint on May 29, 1992. Plaintiffs seek a declaratory judgment, pursuant to 28 U.S.C. § 2201, that Section 396-rr is impermissibly vague and, therefore, violates the Due Process Clause. (Compl. P 39) Plaintiffs seek also an injunction to prevent defendant from enforcing Section 396-rr and regulations thereunder, (Compl. PP 41-42) and damages for an alleged deprivation of their rights, pursuant to 42 U.S.C. 1983. (Compl. PP 43-44)
Plaintiffs claim that the milk pricing law is unconstitutionally vague because it fails to "give fair warning or fair notice to milk retailers of whether the prices they charge for milk constitute violations of the statute." (Compl. P 36) In more basic terms, plaintiffs allege that retailers such as Sloan's do not know how much they may lawfully charge their customers for milk. (Compl. P 35)
The milk pricing law contains two paragraphs that purport to define the conduct the law forbids, and therefore are relevant to the issue at hand:
3. No person shall sell or offer for sale fluid milk for an amount which represents an unconscionably excessive price.
4. Whether a price is unconscionably excessive is a question of law for the court. Evidence that:
(b) the price charged at retail for fluid milk increased a greater amount than the price increased for an equivalent volume paid to producers under an order or interim price of the commissioner pursuant to section two hundred fifty-eight-m of the agriculture and markets law; and
(c) in addition to paragraphs (a) and (b) of this subdivision, the increased price charged by the person was not attributable to additional charges imposed by its suppliers, or other charges beyond the control of the person, including the cost of labor, shall constitute prima facie proof of a violation of this section in any ...