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GREATER NEW YORK METRO. FOOD COUNCIL v. MCGUIRE

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


April 8, 1993

THE GREATER NEW YORK METROPOLITAN FOOD COUNCIL and SLOAN'S SUPERMARKETS INC., Plaintiffs,
v.
RICHARD T. McGUIRE, as Commissioner of the New York States Department of Agriculture and Markets, Defendant.

The opinion of the court was delivered by: MICHAEL B. MUKASEY

OPINION AND ORDER

 MICHAEL B. MUKASEY, U.S.D.J.

 Plaintiffs now complain that the March 29, 1993 order refusing to change the result in the March 8, 1993 Opinion and Order (the "Opinion") herein unfairly suggests that their application for such relief was untimely in addition to being devoid of merit. As to timeliness, they have a point. Accordingly, the March 29, 1993 order is withdrawn, and this one is substituted in its place and stead.

 In demanding reconsideration of the Opinion, plaintiffs advance two arguments. One is that there is no threshold issue of state law justifying abstention. That is wrong. The threshold issue is the meaning of the statute they challenge, as the March 8 Opinion and Order discussed at copious length.

 Second, plaintiffs argue that the interpretation of the statute proffered tentatively in the Opinion raises an equal protection problem, as follows: one milk retailer sells milk consistently 10 cents in excess of 200 percent of wholesale price; a second retailer raises his price by more than any wholesale price increase and more than any increase in his costs would justify, to a price that is only 5 cents in excess of 200 percent of the wholesale price; the reading of the statute suggested in the Opinion would mean that there was a prima facie case of price gouging against the second retailer but not against the first.

 There are numerous answers to this argument, of which two -- one more than is necessary -- should suffice. First, treating the hypothetical on its own contrived terms, the first retailer was not born charging the hypothesized price; at some point that retailer must have raised his price to reach the hypothesized level. At that point, a diligent law enforcement authority presumably would have acted. Second, the legislature may, if it chooses, concern itself simply with price increases and not with absolute price levels, preferring to leave the latter but not the former to the benign effects of competition. That may be inconsistent, and poor economics, but it is hardly a suspect distinction. Indolent price gougers are not yet a protected class. Plaintiffs

 

have not suggested that the statutory distinction [between those who raise prices and those who simply charge high prices] burdens a suspect group or a fundamental interest; and in cases where these considerations are absent, courts are quite reluctant to overturn governmental action on the ground that it denies equal protection of the laws. The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted. Thus, we will not overturn . . . a statute unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature's actions were irrational.

 Vance v. Bradley, 440 U.S. 93, 96-97 (1979).

 The motion for relief from the Opinion is -- again -- denied.

 SO ORDERED:

 Dated: New York, New York

 April 8, 1993

 Michael B. Mukasey,

 U.S. District Judge

19930408

© 1992-2004 VersusLaw Inc.



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