Dreier, Scalera and D'Annunzio. The opinion of the court was delivered by Dreier, J.A.D. D'Annunzio, J.A.D. (dissenting).
After dismissal of various claims in the Chancery Division, appellants Ran-Dav's County Kosher, Inc. and its principals (plaintiffs) here present a challenge to N.J.A.C. 13:45A-21.1 et seq., the New Jersey Kosher regulations. Plaintiffs have also challenged the parallel disorderly persons statute, N.J.S.A. 2C:21-7.2 et seq.; but since plaintiffs have not been charged with a violation of the disorderly persons statute, they have no basis for a direct attack in this proceeding.*fn2
The action commenced when the Attorney General filed a complaint against plaintiffs, Ran-Dav's County Kosher Inc. and
Arthur Weisman, one of Ran-Dav's principals, alleging various violations of the Kosher food requirements set forth in the challenged regulations. These included possession of certain "Shelat" chicken breasts (determined to be non-Kosher by an out-of-state authority), and various specifications of the improper handling or packaging of purportedly Kosher meats. At the State's request, the Chancery Division entered an order requiring Ran-Dav's and Weisman to show cause why Ran-Dav's should not be preliminarily enjoined from holding itself out as an establishment selling Kosher food.
Defendants answered each allegation of the complaint. They defended in part by claiming that the regulations were unconstitutional, and by demanding an injunction against their enforcement. Ran-Dav's and Weisman obtained their own order directing the Attorney General to show cause why he should not be restrained from enforcing the regulations. They then filed counterclaims seeking a declaration of unconstitutionality, an injunction against enforcement, and damages suffered as a result of the enforcement of the regulations and allegedly defamatory press releases. The Attorney General moved to dismiss these counterclaims.
The trial judge denied the Attorney General's application for summary relief and both parties' applications for preliminary injunctions. Although jurisdiction of the enforcement actions was retained, the Chancery judge determined that the challenge to the regulations was properly a matter to be heard by the Appellate Division. The counterclaim was thus dismissed,*fn3 and this appeal was taken.
Plaintiffs (hereafter referred to as "County Kosher" or "Weisman") are the owners and operators of a Kosher food business in Linden. As such, they are subject to regulation both privately, through religious rabbinical supervision provided by Rabbi Harry Cohen of New York, and civilly, by the State's Bureau of Kosher Enforcement in the Division of Community Affairs, directed by its Chief, Rabbi Yakov M. Dombroff.
The regulations' basic operative provision declares it to be "an unlawful consumer practice" to sell or attempt to sell food "which is falsely represented to be Kosher." N.J.A.C. 13:45A-21.2. They are designed to insure that food represented to be "Kosher" is in fact "Kosher." The challenged regulations define "Kosher" as food "prepared and maintained in strict compliance with the laws and customs of the Orthodox Jewish religion." N.J.A.C. 13:45A-21.1.*fn4 "Kosher-style" or similar words are defined in the regulations as meaning, inter alia, a non-Kosher food or product that simulates the taste, appearance and/or consistency of a Kosher food or product but "which has not been prepared or maintained in strict compliance with the laws and customs which are generally recognized as being among the Orthodox Jewish religious requirements." Such "Orthodox Jewish religious requirements" are nowhere spelled out with respect to stores which sell solely Kosher products.*fn5
Plaintiffs' principal claim is that the regulations violate the Establishment Clause of the First Amendment of the United States Constitution ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"), and the coordinate provision of the N.J. Const. (1947), Art. I, par. 4 ("There shall be no establishment of one religious sect in preference to another. . . ."). Plaintiffs assert that so long as they have conformed to the Kosher standards established by their supervising rabbi, the State is without authority to establish different religious standards to which plaintiffs must conform.
The State contends that the Jewish Kosher standards are recognized with little dissent by all branches of Judaism as being those developed and codified in the Orthodox tradition, and that by holding itself out as a purveyor of Kosher food, County Kosher represents to the public that it conforms to these standards. If it does not, the State has an obligation to protect consumers from such misrepresentation, and therefore the Kosher regulations have a valid secular purpose.*fn6
In order to enforce the regulations, the Attorney General has created the Bureau of Kosher Enforcement within the Division of Consumer Affairs. Its present chief is a rabbi, Rabbi Dombroff, who employs several inspectors on his staff. The
inspectors are not rabbis, and some are not even Jewish. We have been advised that the former chief was not a rabbi. In addition, the Attorney General promulgated Executive Directive No. 1987-2 creating a "State Kosher Advisory Committee." The Committee consists of ten members appointed by the Attorney General, and its task is to "advise the Attorney General on Kosher matters and enforcement of the New Jersey Kosher regulations . . . and make recommendations for regulatory changes." We are advised that all of the committee members are rabbis, one Conservative and the rest Orthodox.
As to the meaning of the word "Kosher," "[t]he Hebrew term is kashrut, which . . . [means] "fit" or "proper." The word appears in the Bible only three times . . . and even then not in connection with food." Encyclopaedia Judaica, Vol. 6 at p. 26. Herman Wouk in his biographical/philosophical work, This Is My God (Doubleday & Company, Inc. 1961) at pp. 130-131 writes:
The concept [of Kosher] is in all truth a hard one to pin down. "Kosher" is a late Hebrew word that does not occur in the books of Moses. Perhaps the nearest English word is "fit," in the sense of proper or suitable. But the fitness, it must be clear, is mostly ceremonial. Kosher preparation of food does result in a high degree of hygienic fitness. But a hog could be raised in an incubator on antibiotics, bathed daily, slaughtered in a hospital operating room, and its carcass sterilized by ultra-violet rays, without rendering kosher the pork chops that it yields.
For an understanding of the State's and plaintiffs' respective claims, we must briefly explain some of the basic laws of Kashrut, apparently accepted by all parties in this case. After doing so, we will also briefly describe the specific allegations against plaintiffs.
Although the word "Kosher" may not originally have applied to food or diet, for hundreds of years it has been understood to refer at least in part to the system of Jewish dietary laws.*fn7 Those laws set forth the rules of "(1) permitted and forbidden [243 NJSuper Page 241] animals, (2) forbidden parts of otherwise permitted animals, (3) the method of slaughtering and preparing permitted animals, (4) forbidden food mixtures, and (5) proportions of food mixtures prohibited ab initio but permitted ex post facto." Encyclopedia of Religion, Volume VIII, p. 270-271 (MacMillan Publishing Company 1987). Encyclopaedia Judaica states that "[t]he dietary laws are exceedingly complex and a great deal of material in the Talmud*fn8 is devoted to them." Id. at 40. The historical development of the religious laws of Kosher appears to have led to unaniminity (or at least near unaniminity) of opinion as to whether the majority of food and food preparations encountered in modern, everyday life are Kosher. There are, however, ongoing disputes over a variety of foods. Certain fish,*fn9 birds, hard cheeses, and wines are accepted by the
Conservative movement and a few Orthodox scholars, but rejected by the majority of the observant Orthodox. The Reform and Reconstructionist movements have institutionally not taken a position on the Kosher nature of particular food, since such ritual observance is not required and is left to individual choice.
The laws relating to the ritual slaughter of meat are "[s]o complex and minute . . . that the slaughter must be carried out by a carefully trained and licensed shohet." (Encyclopaedia Judaica, supra, at p. 28). Compliance with the rules "is highly labor intensive" and causes the price of Kosher food to be "consistently higher" than its non-Kosher counterparts." ("Shopping Guide for the Kosher Consumer," published by the New York State Consumer Protection Board). Also, the laws concerning preparation of meat are detailed. Meat requires "Koshering" to draw out all blood, since the consumption of blood is forbidden in the Bible. (Lev. 7:26-27; 17:10-14). Meat must be soaked and salted (the timing of the salting process and the texture of the salt is specified), and then left to stand, followed by additional washings. If more than 72 hours had elapsed since slaughter, the blood can be removed only by roasting over an open flame. (Encyclopaedia Judaica, supra, at p. 28).
The investigators employed by the Bureau of Kosher Enforcement in the Division of Consumer Affairs inspected plaintiffs' place of business on five occasions and noted specific violations. The first alleged violation involved the deveining of calf tongues. The inspector found calves' tongues in a brine solution in a refrigerator. Plaintiffs contended that 25 to 30 tongues were being cleansed in a mild brine solution prior to deveining and prior to pickeling by injection of full-strength brine. The inspector contended that there were even a larger number of tongues in a metal container, and that they were already in a full-strength brine solution without having been deveined. Both parties agree that deveining was required, and the State agrees that pre-soaking in a mild brine solution, if
acceptable to the establishment's supervising rabbi, would not be a basis for a violation notice.
The second charge involved the presence of Shelat brand boned chicken breasts, six boxes of which were found in the bottom of a storage freezer. Plaintiffs had been notified that certain Shelat products were no longer considered Kosher as a result of out-of-state inspections. Plaintiffs contended that these boxes were merely being held for return to the supplier.*fn10
The third problem, which the State claims occurred on two dates, involved finding blood and a vein in meat to be ground for hamburger. Plaintiffs explained that the meat was defrosting and had not yet been trimmed to remove any veins or blood. Only then would it be ground.
The next problem involved labeling. The inspector found approximately 10 packages (out of 1,750 packages) with labels showing the meat had been packaged prior to the 72 hour period required for rewashing. Plaintiffs contended that some of the packages had been sold earlier, but the customer had not yet picked them up. Insofar as the packages contained veal, the veal labeling and dating machine was broken, and was incorrectly labeling the packages. The balance of the items were prepackaged Kosher briskets purchased from a third party so that the labeling was irrelevant.*fn11
As can be seen, the issues in the parallel enforcement proceedings do not involve doctrinal disputes concerning interpretations of Jewish law to determine what is Kosher. What is involved is akin to a claim by the State of fraud or mistake and denials by plaintiffs. For example, if plaintiffs, knowing that the Shelat chickens were not Kosher, were holding them for sale to consumers, such actions would have justified a claim of consumer fraud, irrespective of any variant interpretations of what is Kosher. Similarly, if the untrimmed meat, complete with veins and blood, was either intentionally or negligently to be thrown into the grinder, even plaintiffs do not contend that the resultant product would have been properly labeled. They claim, however, that the inspector failed to recognize that this meat was being held to be trimmed, not to be ground.
Yet plaintiffs still challenge the regulations. They claim that the Kosher determination is to be made by their supervising rabbi*fn12 and, since the determination is solely a matter of interpretation of religious law, the State may not adopt or establish a religious standard further to assess their actions. Especially, the State may not adopt what it considers to be a singular "Orthodox Jewish" standard. Since it is clear that the State's specific claims of violations do not implicate a challenge to ...