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COMMACK SELF-SERVICE KOSHER MEATS v. RUBIN

December 15, 1997

COMMACK SELF-SERVICE KOSHER MEATS, d/b/a COMMACK KOSHER, BRIAN YARMEISCH and JEFFREY YARMEISCH, Plaintiffs, against RABBI SCHULEM RUBIN as Director of the Kosher Law Enforcement Division of THE NEW YORK STATE DEPARTMENT OF AGRICULTURE AND MARKETS, Defendant, and HON. SHELDON SIVLER, ABE ALPER, JON GREENFIELD, JACK LEE, RABBI MOSHE PORTNOY, RICHARD SCHWARTZ, AGUDATH HARABONIM OF THE UNITED STATES AND CANADA, AGUDATH ISRAEL OF AMERICA, NATIONAL COUNCIL OF YOUNG ISRAEL, RABBINICAL ALLIANCE OF AMERICA, RABBINICAL COUNCIL OF AMERICA, TORAH UMESORAH - NATIONAL SOCIETY OF HEBREW DAY SCHOOLS, and THE UNION OF ORTHODOX JEWISH CONGREGATIONS OF AMERICA, Defendants-Intervenors.


The opinion of the court was delivered by: GERSHON

 GERSHON, United States District Judge:

 Plaintiffs, Long Island merchants servicing consumers of kosher products, challenge the constitutionality of the New York Agriculture and Markets Law §§ 201-a, et seq. ("the Kosher Laws"). In December 1996, several Jewish organizations, a rabbi, a competitor of plaintiffs, and individual consumers of kosher products were jointly permitted to intervene as defendants pursuant to Federal Rule of Civil Procedure 24(b)(2). *fn1" Defendant, the Director of the Kosher Law Enforcement Division of the New York State Department of Agriculture and Markets, now moves this court to abstain, pursuant to Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941), from adjudicating plaintiffs' challenge to the Kosher Laws. Plaintiffs and defendants-intervenors oppose the motion.

 This action arises from multiple citations of plaintiffs by the Kosher Law Enforcement Division for violations of the Kosher Laws. Plaintiffs raise a facial challenge to the constitutionality of the Kosher Laws, *fn2" which all parties agree were enacted to protect consumers of kosher products from fraud. See, e.g., Hygrade Provision Co. v. Sherman, 266 U.S. 497, 501, 69 L. Ed. 402, 45 S. Ct. 141 (1925) ("'The purpose of the statute, manifestly, is to prevent and punish fraud . . . .'") (quoting People v. Atlas, 183 A.D. 595, 596-97, 170 N.Y.S. 834 (1st Dept. 1918), aff'd without opinion, 230 N.Y. 629, 130 N.E. 921 (1921)). Section 201-a(1) of the Kosher Laws provides that any individual who,

 
with intent to defraud, sells . . . any . . . article of food . . . and falsely represents the same to be kosher or kosher for Passover, whether such . . . article of food . . . be raw or prepared for human consumption, or as having been prepared under, and of a product or products sanctioned by, the orthodox Hebrew religious requirements, either by direct statement orally, or in writing, which might reasonably be calculated to deceive or lead a reasonable man to believe that a representation is being made that such food is kosher or prepared in accordance with the orthodox Hebrew religious requirements . . . is guilty of a class A misdemeanor . . . .

 N.Y. AGRIC. & MKTS. § 201-a(1). Section 201-c(1) further provides that no person shall "wilfully mark . . . as kosher, or as kosher-style, or as having been prepared in accordance with the Hebrew orthodox religious requirements food or food products not kosher or not so prepared . . . ." N.Y. AGRIC. & MKTS. § 201-c(1). And Section 201-f, which bears the caption "Kosher meat or poultry," provides that

 
all meat or poultry which is sold . . . and is represented as having been prepared in accordance with orthodox Hebrew religious requirements and which has not been soaked and salted immediately after slaughter on the premises where slaughtered:
 
(a) shall have affixed to it a tag or plumba stating the date and time of day . . . of slaughter; and
 
(b) shall be washed in accordance with orthodox Hebrew religious requirements within seventy-two hours after slaughter, and within each subsequent seventy-two hour period, by a duly ordained orthodox rabbi or by a person authorized by him. . . .

 N.Y. AGRIC. & MKTS. § 201-c(1).

 Plaintiffs argue that these provisions define food that is "kosher" as food that is "prepared in accordance with orthodox Hebrew religious requirements," and in so doing they impermissibly establish Orthodox Judaism as the only legitimate form of Judaism in matters of the kosher dietary laws. Plaintiffs also argue that equating "kosher" with "orthodox Hebrew religious requirements" deprives Jewish consumers who do not follow Orthodox Judaism of their First Amendment right to the free exercise of religion and of their Fourteenth Amendment right to the equal protection of the laws. Finally, plaintiffs argue that the Kosher Laws are unconstitutionally vague because they fail to define "orthodox Hebrew religious requirements." *fn3"

 Defendant, represented by the Attorney General of the State of New York, urges the court to abstain from adjudicating plaintiff's constitutional challenges to the statute. Plaintiffs and defendants-intervenors argue that Pullman abstention is inappropriate because there is no unsettled state law issue; rather, the Kosher Laws have long been interpreted by the state courts as equating "kosher" with "prepared in accordance with orthodox Hebrew standards." Although they agree that abstention is inappropriate, plaintiffs and defendants-intervenors disagree over whether that definition of "kosher" renders the statute unconstitutional. For the reasons set forth above, plaintiffs argue that the statute is unconstitutional; defendants-intervenors argue that, because a "consensus" exists among kosher consumers that "kosher" goods are "prepared in accordance with orthodox Hebrew religious requirements," the statute's treatment of the terms as synonymous is unobjectionable.

 This opinion addresses only the question whether abstention is appropriate; it does not address, and the parties have not yet fully briefed, the merits of plaintiffs' constitutional challenges to the statute.

 "Federal district courts have an unflagging duty to adjudicate matters properly within their jurisdiction, and are not to decline jurisdiction simply because the issues presented may be decided in another forum." Greater New York Metropolitan Food Council v. McGuire, 6 F.3d 75, 77 (2d Cir. 1993); McRedmond v. Wilson, 533 F.2d 757, 760-64 (2d Cir. 1976). A district court may renounce its obligation to adjudicate controversies properly within federal jurisdiction only in exceptional circumstances. Id. The Pullman abstention doctrine carves out one such exception. It permits abstention to allow review by the state courts "when difficult and unsettled questions of state law must be ...


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