Barghout v. Mayor and City Council of Baltimore

• Decision Date: 30 September 1993
• Docket Number: Civ. No. L-91-141.
• Citation: 833 F. Supp. 540
• Parties: George BARGHOUT v. MAYOR AND CITY COUNCIL OF BALTIMORE, et al.
• Court: U.S. District Court — District of Maryland

833 F. Supp. 540

George BARGHOUT v. MAYOR AND CITY COUNCIL OF BALTIMORE, et al.

Civ. No. L-91-141.

United States District Court, D. Maryland.

September 30, 1993.

Polydorous Paul Cocoros, and Imad Khalil Dajani, Baltimore, MD, for plaintiff.

Neal M. Janey, City Sol. for Baltimore City, Burton H. Levin, Asst. City Sol., and Susan Goering, American Civil Liberties Union of MD, amicus, for defendants.

MEMORANDUM

LEGG, District Judge.

This case concerns the constitutionality of a Baltimore City ("City") ordinance designed to prevent the intentional mislabelling of kosher foods. The goal of protecting the City's consumers from fraud is commendable, reasonable, and important. Purchasers of kosher food should be able to rely on vendors' representations that food labelled "kosher." is indeed kosher. Unfortunately, this particular ordinance violates the Establishment Clause of the First Amendment of the United States Constitution.

Although the challenged ordinance violates the First Amendment in several ways, the primary defect is that it excessively entangles civil and religious authority. In order to prosecute any person under the ordinance, for example, the City must prove that food marketed as "kosher" is not in fact kosher. To decide this issue, courts must answer questions (perhaps esoteric ones) of orthodox Hebrew dietary law — for example, whether the suspect food or food preparation methods conform to orthodox Hebrew dietary law.¹ Under the United States Constitution, however, courts are neither equipped nor permitted to resolve such questions in the context of a criminal prosecution. Accordingly, because prosecution under the ordinance depends upon a secular court's interpretation of religious doctrine, the Court concludes that the challenged ordinance is unconstitutional.

Presently pending before the Court are the plaintiff's Motion for Summary Judgment and the defendant's Motion to Dismiss the Amended Complaint. Both motions have been fully briefed, and supplemental memoranda have been filed.² After considering the constitutional issues in this case, the Court will GRANT plaintiff's Motion for Summary Judgment and DENY defendant's Motion to Dismiss the Amended Complaint.

I. FACTS

Sections 49 and 50 of Article 19 of the Baltimore City Code constitute the City's kosher fraud ordinance. Section 50 criminally punishes any person who markets food labeled "kosher" that is not in fact kosher. To be kosher under Section 50,³ food must conform to orthodox Hebrew dietary rules. Article 19, § 49(e). Violations of the ordinance are considered misdemeanors "punishable by a fine of not less than fifty dollars ($50.00) or more than five hundred dollars ($500.00) or by imprisonment of not less than thirty (30) days or more than one (1) year, or both, at the discretion of the Court." Id. § 50.

The ordinance also establishes a six-person "Bureau of Kosher Meat and Food Control" ("Bureau") whose duties include inspecting the premises, records, equipment, and products of all places engaged in the manufacture, preparation, sale, or distribution of food which is represented to the public as "kosher." Id. § 49(e). The Bureau must consist of three duly ordained orthodox Rabbis and three laymen who are selected from a list submitted by "The Council of Orthodox Rabbis of Baltimore" and "The Orthodox Jewish Council of Baltimore." Id. § 49(a). The Mayor of the city of Baltimore appoints all six members of the Bureau, and they receive no compensation for their services. Id. Pursuant to statute, they must be chosen for their "expert knowledge and interest in the orthodox Hebrew rules, regulations and requirements pertaining to the sale, manufacture, distribution and preparation of kosher food." Id. § 49(b). In "administering and enforcing" the ordinance, the Bureau may hire an inspector for the "proper performance of the Bureau's duties and enforcement of the law." Id. §§ 49(e), 49(g). The Bureau shall report any violations of the ordinance to the Mayor and/or other law enforcement authority. Id. § 49(h).

The plaintiff George Barghout, whose sale of kosher food resulted in this litigation, owned and operated an establishment called "Yogurt Plus" in a Baltimore shopping mall.⁴ On September 1, 1989, the Bureau received a complaint that Yogurt Plus was violating kosher laws. Later that day, the Bureau dispatched its inspector, Rabbi Mayer Kurefeld, to investigate the complaint.

When he arrived at Yogurt Plus, Rabbi Kurefeld noticed an electric sign outside Yogurt Plus advertising "kosher hot dogs." Inside the store, the menu board also indicated that the store offered "kosher" hot dogs for sale. The inspector determined, however, that the "kosher" hot dogs were not actually kosher. Although there was nothing wrong with the hot dogs upon removal from the package, Rabbi Kurefeld explained that Barghout's method of hot dog preparation robbed the kosher hot dogs of their kosher status.

Specifically, the kosher hot dogs had been placed on a rotisserie next to non-kosher sausages and hot dogs. According to Rabbi Kurefeld, this cooking method permits grease from the sausages and non-kosher hot dogs to touch the kosher hot dogs. Rabbi Kurefeld explained that kosher food loses its kosher status if tainted by grease from non-kosher food. Rabbi Kurefeld stated that he advised Barghout "that a person is paying more money for kosher and ... deserves to get what he pays for and that's the intent of the law." Selling "kosher hot dogs" undeserving of that designation constitutes false advertising, the inspector concluded. Accordingly, Rabbi Kurefeld issued a violation warning to Barghout, who refused to sign it. The inspector also informed Barghout that he would be given time to correct the problem.

On October 11, Rabbi Kurefeld returned to Yogurt Plus and discovered that, even though the City Solicitor's office had also sent Barghout a warning letter, the problem had not been corrected. The inspector then issued another violation warning to Barghout. According to the rabbi's testimony, he came back twice again — on November 24, 1989, and May 15, 1990 — only to discover that the cooking methods had not changed. Barghout was issued yet another warning letter; he was also charged with violating the ordinance.

On November 15, 1990, a judge of the District Court of Maryland for Baltimore City found Barghout guilty of violating Article 19, Section 50. The vendor was fined $400 plus $100 in court costs. Two months later, Barghout sought a declaratory judgment from the United States District Court for the District of Maryland that Article 19, Sections 49 and 50 of the Baltimore City Code violated the First and Fourteenth Amendments of the United States Constitution. The vendor asserts that both Sections 49 and 50 are "unconstitutionally vague for want of any ascertainable standard of guilt"⁵ and that they violate the Establishment Clause of the United States Constitution. See Amended Complaint ¶¶ 8, 10, 11.

On May 31, 1991, Judge Frederic N. Smalkin certified two questions to the Court of Appeals of Maryland. See Md.Cts. & Jud. Proc.Code Ann. § 12-601 (1989).

I. Can an individual be convicted of violating Article 19, § 50 of the Baltimore City Code, if he or she sincerely believes that his or her conduct conforms to kosher requirements, even though the City inspector may disagree, or even though the individual's conduct might in fact be violative of religious laws?

II. Does Article 19, § 50 of the Baltimore City Code violate Article 36 of the Declaration of Rights of the Constitution of Maryland?

Barghout v. Mayor, 325 Md. 311, 600 A.2d 841, 841-42 (1992).⁶

Answering the first question in the negative, the Court of Appeals found that Section 50 is "meant to punish only those who knowingly deceive customers who buy products labeled as kosher but which the vendors do not believe are up to that standard." Barghout, 600 A.2d at 844. The Court stated that the law is "not designed to punish sellers who honestly but incorrectly believe that their products are kosher." Id. Vendors who "sincerely believe" that their food products meet the requirements of the statute do not violate the ordinance. Id. 600 A.2d at 845.

The Court of Appeals also answered the second question in the negative, concluding that "nothing in Baltimore's kosher food ordinance inhibits the free exercise of religion guaranteed under Article 36 of the Maryland Declaration of Rights." Barghout, 600 A.2d at 848. The Court noted, however, that "Article 36 does not contain an establishment clause, which would prohibit government from setting up a church, giving preferential treatment to any religion or coercing belief or disbelief in any religion." Id. 600 A.2d at 849. The Maryland Court of Appeals, therefore, did not (and could not) decide the Establishment Clause issue under the Maryland Constitution. Accordingly, this Court must analyze that issue under the First Amendment of the United States Constitution.

Before undertaking such an analysis, however, the Court must briefly explain the import of the term "kosher," which means "fit" or "ritually correct" and refers to the Jewish dietary laws. Ran-Dav's County Kosher, Inc. v. State, 129 N.J. 141, 608 A.2d 1353, 1355 (1992) (holding a similar kosher fraud statute unconstitutional), cert. denied, ___ U.S. ___, 113 S.Ct. 1366, 122 L.Ed.2d 744 (1993). The collective term for these laws and customs is the Hebrew word "kashrut." 6 Encyclopaedia Judaica 27 (MacMillan Publishing Co. 1971). The rules of kashrut are derived from biblical statute, rabbinic interpretation and legislation, and custom. 8 Encyclopedia of Religion 271 (MacMillan Publishing Co. 1987). Most biblical allusions regarding kashrut are found in the Old Testament books of Leviticus, Deuteronomy, Genesis, and Exodus. Id. The rules of kashrut pertain to permitted and forbidden animals, forbidden parts of otherwise permitted animals, the method of slaughtering and...