UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO INTERVENE AS DEFENDANTS

Preliminary Statement

This case concerns the constitutionality of the New York statute that protects consumers in the State against false labelling of food as kosher. Sections 201-1 et seq. of the Agriculture and Markets Law requires those who describe the food they sell as "kosher" to be truthful in that representation. It also requires vendors who choose to label their food as "kosher" to disclose certain factual information about the treatment of the food that is relied upon by consumers who purchase kosher food. The plaintiffs have brought this action seeking a judicial determination that Sections 201 et seq. (hereinafter "the Statute") violates "both the Establishment and the Due Process Clauses of the First and Fourteenth Amendments to the United States Constitution and of Article I, 3 of the Constitution of the State of New York." Complaint, 1.

The proposed intervenors are:

1. the Speaker of the New York State Assembly, who has co-sponsored laws protecting kosher consumers, including Chapter 382 of the Laws of 1977, codified as 201-a(2) and (3) of The Agriculture and Markets Laws;
2. individual consumers of kosher food who rely on the Statute to protect them against consumer fraud;
3. a competing merchant who complies with the Statute and expects others who advertise their products as kosher to be truthful in their representations;
4. rabbinic and lay organizations that represent and speak for the observant Jewish community in the State of New York, elsewhere in the United States, and throughout the world; and
5. a vegetarian activist who relies on kosher labelling to indicate that food contains no animal products.

These intervenors have personal legal interests in the protection provided by the Statute, and they cannot rely exclusively on the Attorney General to represent those interests. For the reasons stated herein, the intervenors are entitled to intervention as of right pursuant to Rule 24(a)(2) of the Federal Rules of Civil Procedure⁽¹⁾ as well as to permissive intervention pursuant to Rule 24(b)(2).⁽²⁾

I. THE APPLICATION FOR INTERVENTION IS TIMELY

This application is being made 45 days after the plaintiffs filed their Amended Complaint and only 15 days after the first responsive pleading was filed. At this early stage of the proceeding, it is plain that the application is timely. Intervention will produce no delay whatever, and no party can therefore claim prejudice. See Herdman v. Town of Angelica, 163 F.R.D. 180, 185 (W.D.N.Y. 1995); Clarkson v. Coughlin, 145 F.R.D. 339, 344 (S.D.N.Y. 1993).

II. THE APPLICANTS ARE ENTITLED TO INTERVENTION AS OF RIGHT

Federal Rule of Civil Procedure 24(a)(2) grants a right to intervene to any person who "claims an interest relating to the property or transaction which is the subject of the action" if that party "is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest," and if the interest is not "adequately represented by existing parties."

A. The Intervenors Have a Legal Interest.

The words "interest relating to the property or transaction which is the subject of the action" have been interpreted to cover an interest in a statute that is under constitutional challenge. See, e.g., 44 Liquormart, Inc. v. Rhode Island, 64 U.S.L.W. 4313, 4316 (1996) (private association intervened as defendant in constitutional challenge to state law); Jones v. Butz, 374 F. Supp. 1284, 1287 (S.D.N.Y.) (allowing intervention as defendant in action challenging constitutionality of state law regarding ritual slaughtering of animals), aff'd, 419 U.S. 806 (1974). See also New York Pub. Interest Research Group, Inc. v. Regents, 516 F.2d 350, 351-52 (2d Cir. 1975) (allowing intervention as defendants by pharmacists and pharmacist association in action to enjoin enforcement of state law prohibiting advertising of prescription drug prices); Herdman, 163 F.R.D. at 187. The continued validity of the Statute is a subject in which each of the proposed intervenors has a legal interest that will be impaired if the law is invalidated:

(a) Speaker Silver is, first of all, a personal observer of the laws of kashruth. As a private consumer, he has a strong interest in a law that insures that he may be confident that food labelled "kosher" is, indeed, kosher. Jones, 374 F. Supp. at 1287. In addition, he was the co-sponsor of chapter 382 of the laws of 1977, which are codified as 201-a(2) and 201-a(3) of the Agriculture and Markets Laws, and he has sponsored many other bills dealing with the same issue. See, e.g., Assembly Bills A.6970, A.6969, A.3503, A.2284, A.1578, A.1577 of the 1993 Legislative Session. To be sure, the Supreme Court of the United States has reserved judgment on the question whether "individual legislators have standing to intervene and defend legislation for which they voted." Karcher v. May, 484 U.S. 72, 84 (1987) (White, J., concurring). Speaker Silver has more than a legislator's interest, however. His personal stake as a consumer of kosher foods clearly adds to his standing and to his right to intervene. Jones, 374 F. Supp. at 1287.

(b) Rabbi Moshe Portnoy is an Orthodox rabbi residing in Plainview, New York. He is the rabbi of the congregation Young Israel of Plainview, which numbers 200 families, most of whom reside in the area of Plainview, New York. The plaintiffs' store is in the nearby town of Commack, New York, and congregants of Rabbi Portnoy are among those who patronize the plaintiffs' store. Rabbi Portnoy is consulted by his congregants on questions of kashruth, and he advises them where kosher food is obtainable. The enforceability of a law requiring merchants to use the label "kosher" only if they do so truthfully is of great importance to Rabbi Portnoy in carrying out his professional obligations. Cf New York PIRG, 516 F.2d at 352 (explaining that intervening pharmacists "have an interest in the action as professionals" where invalidation of state law would "lead to significant changes in the profession and in the way pharmacists conduct their businesses").

(c) Abe Alper and Jack Lee are consumers of kosher food whose religion requires them to limit their diets to kosher foods only. They live in Plainview, New York. They have an interest of conscience in knowing that food advertised as "kosher" is not being misrepresented. Jones, 374 F. Supp. at 1287. Indeed, they would suffer incalculable emotional distress if they were ever to consume non-kosher food because it had been held out to them as "kosher." These consumers also necessarily rely on factual information that vendors are required to disclose under the Statute about how food has been treated before sale. They also have a pocketbook interest because they know that kosher food costs significantly more than similar non-kosher food. They are prepared to pay this extra amount for the food, provided that the food is indeed kosher. But if merchants -- including the plaintiffs -- are selling nonkosher food as kosher, the proposed intervenors should not be expected to pay the premium that kosher food commands. They are, in effect, being cheated of that premium if the food they purchase is not truly kosher.

(d) Jim Greenfield is a competitor of the plaintiffs who owns two stores located in Plainview, New York, that sell kosher food. He cannot compete effectively in the kosher trade with merchants who sell nonkosher food as kosher. They can purchase the nonkosher food more cheaply and undercut his prices. Consequently, Greenfield -- who complies with the Statute -- has an interest in preserving the law and in insuring that competitors can sell food as kosher only if it truly is kosher. New York PIRG, 516 F.2d at 351-52 (allowing intervention of pharmacists where challenged regulation affected their economic interests).

(e) The Union of Orthodox Jewish Congregations of America, Rabbinical Council of America, Agudath Israel of America, National Council of Young Israel, The Rabbinical Alliance of America, Agudath Harabonim of the United States and Canada, Torah Umesorah - National Society of Hebrew Day Schools, and The Union of Orthodox Jewish Congregations of America are charitable organizations that serve and represent the Orthodox Jewish Community. The membership of these organizations has a strong interest in effective regulation of anyone who purports to be selling kosher food, and in the prevention of fraud against those who purchase kosher food because it satisfies their obligations as observant Jews. Jones, 374 F. Supp. at 1287. The organizations have supported the enactment of laws protecting the kosher consumer for many decades, and the constitutional issues presented in this case are of vital interest to all the intervenor membership organizations. Idaho Farm Bureau Federation v. Babbitt, 58 F.3d 1392, 1397 (9th Cir. 1995) (an organization "is entitled as a matter of right to intervene in an action challenging the legality of a measure it has supported").

(f) Richard Schwartz is a vegetarian activist, a member of Jewish Vegetarians of North America, and the author of Judaism and Vegetarianism. He is a consumer of kosher foods who wishes to avoid ingesting all animal products. He relies on kashruth certifications that specify that products are "pareve" (neither dairy or meat) to indicate that a product is satisfactory. Invalidation of the challenged law would deprive Mr. Schwartz of legal protection that he now deems necessary. Jones, 374 F. Supp. at 1287. Like the consumers discussed above, Mr. Schwartz is willing to pay premium prices for kosher food, provided that it is accurately represented as kosher.

B. The Intervenors' Legal Interest Is Threatened.

"Disposition of this action" in the plaintiffs' favor by an invalidation of the Statute would plainly jeopardize the proposed intervenors' interests. The Second Circuit has observed that the "impairment" condition of Rule 24(a)(2) imposes only a modest burden that must be shown to be threatened "as a practical matter." United States v. Pitney Bowes Co., 25 F.3d 66, 70 (2d Cir. 1994); New York PIRG, 516 F.2d at 352; Herdman, 163 F.R.D. at 188. To obtain intervention as of right, proposed intervenors need not show that rights will be finally and absolutely determined by an adverse final disposition. It is enough to show a real practical risk. That was the import of a 1966 amendment to the Rule. See 7C Wright, Miller & Kane, Federal Practice and Procedure 1908 (1986 & Supp. 1996).

C. The Named Defendant Cannot Adequately Represent the Intervenors' Interest.

Case law in this Circuit "indicate[s] that in considering a motion to intervene as of right on the side of a government entity in an action in which the government entity is . . . defending . . . the validity of its laws . . . courts should examine both (1) whether the government entity has demonstrated the motivation to litigate vigorously and to present all colorable contentions, and (2) the capacity of that entity to defend its own interests and those of the prospective intervenor." Herdman, 163 F.R.D. at 190. This is precisely the sort of case in which the state cannot adequately represent the intervenors' interest.

The complaint contains a broad constitutional challenge to the New York law, but it also centers on a narrow factual dispute. The plaintiffs assert that they were wrongly accused of violating the law and that their reputation has been damaged. They further allege that the named defendants acted "arbitrar[ily]" and "capricious[ly]" (see Complaint 246), and that they published an accusation about the plaintiffs "with reckless disregard as to its truth or falsity" (Complaint 258). The named defendant and other state officials may be more interested in a favorable resolution of these specific allegations than in a full-fledged defense of the constitutional claim. Cf. Planned Parenthood v. Citizens for Community Action, 558 F.2d 861, 870 (8th Cir. 1977) (intervenor's interest in protecting local ordinance from constitutional challenge differed from interest of defendant city councilmembers, who must also consider threat of personal liability).

Indeed, stories have appeared in English-language newspapers serving the Jewish community reporting that the defendants may settle the litigation on terms that will not contemplate full and vigorous future enforcement of the law. See, e.g., The Jewish Week, March 22, 1996, p. 1. Such a disposition would substantially undermine the proposed intervenors' interests. Accordingly, the interests of the proposed intervenors are not adequately protected by the existing parties. See New York PIRG, 516 F.2d at 352 (interests of intervenors not adequately protected where there was a likelihood that the intervenors "will make a more vigorous presentation" of certain sides of an argument); Town of North Hempstead v. Village of North Hills, 80 F.R.D. 714, 717 (E.D.N.Y. 1978) (same); see also Trbovich v. United Mine Workers, 404 U.S. 528, 538-39 (1972) (explaining that intervenor's interests were not adequately represented by government entity where government entity has obligation not only to intervenor's interests but also to broader public interests); In re Sierra Club, 945 F.2d 776, 780 (4th Cir. 1991) (explaining that state agency did not adequately represent public interest group's opposition to constitutional challenge to state regulations where state agency "in theory" represented all state citizens, including citizens who opposed the regulation, while public interest group represented only the "subset of citizens" who supported the regulation). Moreover, the intervenors, each of whom has a unique perspective on the importance of the challenged laws to private citizens, will be able to provide facts and argument that the current defendants cannot provide. See Bass v. Richardson, 338 F. Supp. 478, 492 (S.D.N.Y. 1971) (intervention allowed where, unlike existing parties, intervenor is in "a unique position to inform the court as to the factual matters with which it must deal in deciding the case").

The adequacy of representation by the named defendant is not a subject that a court should examine stringently. The Supreme Court has said, "The requirement of the rule is satisfied if the applicant shows that representation of his interest `may be' inadequate; and the burden of making that showing should be treated as minimal." Trbovich, 404 U.S. at 538 n.10. The general rule is that "there is good reason in most cases to suppose that the applicant is the best judge of the representation of his own interests." 7C Wright, Miller & Kane, Federal Practice and Procedure 1909, at p. 317 (1986 & Supp. 1996).

The proposed intervenors have the requisite interest in these proceedings. They will suffer a substantial impairment of their ability to protect those interests unless intervention is permitted, and their interests are not fully represented by existing parties. They are therefore entitled to intervene as of right, and their motion to intervene pursuant to Rule 24(a)(2) should be granted.

III. THE APPLICANTS SHOULD BE GRANTED PERMISSIVE INTERVENTION

Federal Rule of Civil Procedure 24(b)(2) grants this Court broad discretion to allow intervention when "an applicant's claim or defense and the main action have a question of law or fact in common." "The Rule is to be construed liberally . . . and it does not require an identity of facts." Clarkson v. Coughlin, 145 F.R.D. 339, 343 (S.D.N.Y. 1993) (citations omitted). Although the contentions and approach of defendant and the applicants for intervention are not identical, they do share many common legal and factual defenses. The applicants, therefore, unquestionably satisfy the modest test of Rule 24(b)(2).

Moreover, this case is exceptionally well suited for the exercise of the Court's discretion to permit intervention because of the important constitutional rights at stake and the different interests of the various parties in this controversy. A consolidated hearing on the claims and defenses of all parties would unquestionably serve the interests of the judicial system by assuring the most expeditious and comprehensive resolution of this controversy.

The Federal Rules instruct a court, in exercising its discretion under Rule 24(b), to "consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties." This application presents no danger of delay or prejudice. Indeed, because counsel for the applicants is experienced in Establishment Clause law,⁽³⁾ the participation of the applicants is likely to promote the effective and efficient litigation of this case involving facts that are essentially undisputed.

CONCLUSION

For all the foregoing reasons, applicants' motion to intervene as of right under 24(a)(2), Fed. R. Civ. P., should be granted. Alternatively, the Court should allow applicants to intervene permissively pursuant to Rule 24(b)(2), Fed. R. Civ. P.

Dated: May 31, 1996.

Footnotes

1. Rule 24(a)(2) provides:

Upon timely application anyone shall be permitted to intervene in an action: . . . when the applicant claims an interest relating to the property or transaction which is the subject of the action and the transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

2. Rule 24(b)(2) provides:

Upon timely application anyone may be permitted to intervene in an action: . . . when an applicant's claim or defense and the main action have a question of law or fact in common. . . . In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

3. Mr. Lewin argued the following Religion Clause cases, inter alia, in the Supreme Court of the United States: Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977); Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985); Goldman v. Weinberger, 475 U.S. 503 (1986); County of Allegheny v. ACLU, 492 U.S. 573 (1989); Board of Educ. of Kiryas Joel v. Grumet, 114 S. Ct. 2481 (1994).