During oral argument before the Court and again in their papers, the state defendants have taken the position that this Court should not attempt to adjudicate the final merits of plaintiffs' claims but rather should abstain from assuming jurisdiction over the litigation under the principle of abstention that the Supreme Court first espoused in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61S.Ct. 643 (1941). The doctrine of "Pullman-type abstention," as this form of federal court refusal to exercise jurisdiction over cases the court has the power to adjudicate has come to be known, provides that where unsettled questions of state law may, depending on their resolution, make it unnecessary to decide the issues of federal constitutional law the action involves, a federal court should abstain from wielding its jurisdiction over the litigation until a state court has determined the state law questions in dispute. The state defendants contend that since New York state courts have not ruled on whether plaintiffs' specific situations and religious beliefs fall with the coverage of § 2164(9)'s religious exemption, a federal court should abstain from exercising its jurisdiction over plaintiffs' claims.

A court, however, should not lightly turn its back on cases properly invoking the court's jurisdiction over purported violations of the guarantees of individual liberties made by the United States Constitution. As Justice Brennan noted in Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244 (1976):

Abstention from the exercise of federal jurisdiction is the exception, not the rule. "The doctrine of abstention, under which a District Court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it. Abdication of the obligation to decide cases can be justified under this doctrine only in the exceptional circumstances where the order to the parties to repair to the State court would clearly serve an important countervailing interest." County of Allegheny v. Frank Marshuda Co., 360 U.S. 185, 188-1S9 (1950).

The Supreme Court has emphasized that "[t]he abstention doctrine is not an automatic rule to be applied whenever a federal court is faced with a doubtful issue of state law" but "rather involves a discretionary exercise of a court's equity powers" on a case-by-case basis. Baggett v. Bullitt, 377 U.S. 360, 375, 84 S.Ct. 1316, 1344 (1964). The Second Circuit, furthermore, has seen invocation of the Pullman-type abstention doctrine to be warranted only if three essential conditions have been met, namely, (1) the state statute involved is unclear or the issue of state law uncertain; (2) resolution of the federal issue depends upon the interpretation to be given to the state law; and (3) the state law is susceptible of an interpretation that would avoid or modify the federal constitutional issue. McRedmond v. Wilson, 533 F.2d 757, 761 (2d Cir. 1976).

The Court finds that the circumstances the Sherrs and Levy's actions present are not of the "exceptional" nature that the Supreme Court has indicated to be required for a federal court to abstain from its duty fully to adjudicate cases and controversies properly placed before it and that the first of the three necessary conditions for abstention delineated by the Second Circuit is lacking in the situation now before the Court. If § 2164's religious exemption were to be interpreted so as to except from the statute's immunization requirements the children of individuals whose religious beliefs prohibit vaccinations against disease even if these persons do not belong to a "recognized religious organization," plaintiffs' constitutional challenges to the statute and defendants' application of the law to them might well be mooted. Also, there can be little question that § 2164 can reasonably be interpreted in a manner that would alter the constitutional questions presented or make it unnecessary for the court to reach them: Those state courts that have addressed the scope of § 2164's religious exemption appear uniformly to have found that the exemption cannot be limited to members of recognized religious groups. E.g., Brown v. City School District of the City of Corning, 104 Misc. 2d 796, 429 N.Y.S.2d 355 (Sup. Ct. Steuben Co. 1980), affirmed, 83 A.D.2d 755, 444 N.Y.S.2d 878 (4th Dep't 1981); Matter of Maria R., 81 Misc. 2d 286, 366 N.Y.S.2d 309 (Fam. Ct. N.Y. Co. 1975); Meier v. Besser, 73 Misc. 2d 241, 341 N.Y.S.2d 411 (Sup. Ct. Onondaga Co. 1972).

Nonetheless, the fact that state courts in diverse regions of the State of New York have fundamentally been at one in their reading and application of § 2164(9) undercuts any claim that the state statute plaintiffs call into question in this litigation is so unclear or the issue of state law so uncertain that this Court should refrain from even considering the merits of plaintiffs' contentions. The statute, moreover, has been on the books since 1966 and it has remained unchanged in any manner pertinent to plaintiffs' law suits since its enactment. The actions at bar, therefore, offer a situation far different from those presented in cases in which courts have deemed abstention warranted because of the unsettled nature of recently enacted state laws that had never been construed by any state courts. E.g., Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 92 S.Ct. 1749 (1972); Bellotti v. Baird, 428 U.S. 132, 96 S.Ct. 2857 (1976); Catlin v. Ambach, 820 F.2d 588 (2d Cir. 1987). Additionally, abstention is especially inappropriate in circumstances where not only is the state law issue not particularly unsettled but the delay that abstention necessarily entails would be highly prejudicial to plaintiffs' interests in obtaining a judicial determination that they hope will allow them to conduct their affairs in conformance with their purportedly religious beliefs and allow their children to continue their formal education without further obstacles. As the Supreme Court noted in Baggett, "abstention operates to require piecemeal adjudication in many courts, thereby delaying ultimate adjudication on the merits for an undue length of time, a result quite costly" where what is at stake is the "exercise of First Amendment freedoms." 377 U.S. at 378-79, 84 S.Ct. at 1326 (citations omitted). See also, e.g., Procunier v. Martinez, 416 U.S. 396, 404, 94 S.Ct. 1800, 1807 (1974); Long Island Vietnam Moratorium Committee v. Cahn, 437 F.2d 344 (2d Cir. 1970), affirmed, 418 U.S. 906, 94 S.Ct. 3197 (1974).

Maier v. Good, 325 F.Supp. 1268 (N.D.N.Y. 1971), which the state defendants cite in their papers, does not require an opposite conclusion. Maier v. Good, like the instant actions, involved a constitutional challenge to the denial of a religious exemption to a family who claimed that inoculation was prohibited by the dictates of their religious beliefs but did not actually belong to any formal religious denomination. A three judge court determined that it should abstain from deciding the constitutional issues the Maiers' case presented. The court premised its ruling on two separate grounds. First, the court noted that the statute was a relatively new one and its application to facts similar to those presented by the Maiers' lawsuit had not yet been ruled upon by the New York state courts. Second, the court rejected the plaintiffs' argument that an administrative appeal to the New York Commissioner of Education would be futile and that therefore they need not exhaust the state administrative remedy that N.Y. Educ. L. §§ 310, 311 made available to them. Plaintiffs relied for their position upon the fact that, prior to the enactment of § 2164, the State Department of Education had issued a memorandum opposing the granting of any exemptions to the statute's mandatory immunization requirements. The Court held that this pre-enactment statement bore little weight upon how the Commissioner of Education would interpret the statute as enacted.

Meier v. Good is easily distinguishable from the situation the cases currently before the Court present. Section 2164 is no longer new and the state courts have had ample time to rule upon the scope and constitutionality of § 2164(9)'s religious exemption. In fact, one of the cases in which a state court has construed § 2164 is the Maier family's own action in state court after the federal court declined to hear their case. Maier v. Besser, 73 Misc. 2d 241, 341 N.Y.S.2d 411. Furthermore, since the federal court Maier decision was handed down, the Commissioner of Education has ruled on a number of occasions that an administrative appeal to the Commissioner cannot be used as a means of challenging the constitutionality of a statute, and has declared it to be his formal opinion that in order to secure an exemption to § 2164's vaccination requirements, one must establish membership in a religious organization whose teachings are contrary to immunization rather than simply a personal, religiously mandated opposition to inoculation. E.g., Matter of Van Druff, 21Educ. Dept. Rep. 635 (1982); Matter of Curtin, 20 Educ. Dept. Rep. 473 (1981); Matter of Maier, 12 Educ. Dept. Rep. 56 (1972).3/

Accordingly, the Court holds in its discretion that it should not abstain from assuming jurisdiction over the Sherrs and Levys' actions.

3/ Matter of Maier is the administrative appeal to the Commissioner that followed the Maier family's action in federal court and preceded their state court action.

IV. STANDING - Wexler Decision

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