Federal Court against Village of KJ Transcript 8-31-11

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1 UNITED STATES DISTRICT COURT

1 SOUTHERN DISTRICT OF NEW YORK

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3 KIRYAS JOEL ALLIANCE, et al.,

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4 Plaintiffs,

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5 v. 11 CV 3982 (JSR)

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6 VILLAGE OF KIRYAS JOEL, et

6 al.,

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7 Defendants.

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9 New York, N.Y.

9 August 31, 2011

10 5:10 p.m.

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11 Before:

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12 HON. JED S. RAKOFF,

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13 District Judge

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14 APPEARANCES

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15 SUSSMAN & WATKINS

15 Attorneys for Plaintiff

16 BY: MICHAEL SUSSMAN

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17 COVINGTON & BURLING

17 Attorneys for Defendant Village of Kiryas Joel

18 BY: MARK GIMBEL

18 ALAN VINEGRAD

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19 MCCABE & MACK

20 Attorneys for Defendant Village of Kiryas Joel

20 BY: DAVID POSNER

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21 MORRIS, DUFFY ALONSO & FALEY

22 Attorneys for Defendant Witriol

22 BY: CARL SANDEL

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23 TARSHIS, CATANIA, LIBERTH, MAHON & MILLIGRAM

24 Attorneys for Defendants Congregation and David Ekstein

24 BY: RICHARD MAHON, II

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SOUTHERN DISTRICT REPORTERS, P.C.

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1 BONACIC, KRAHULIK, CUDDEBACK, McMAHON & BRADY

1 Attorneys for Defendant Town of Monroe

2 BY: JAMES GALVIN

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3 SOKOLOFF STERN

3 Attorneys for Defendants Goldstein, Freund, Landau,

4 Reisman and Weider

4 BY: BRIAN SOKOLOFF

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1 (Case called)

2 THE COURT: Good afternoon. I should probably mention

3 at the outset that Mr. Sussman is a lawyer who I have long had

4 a great admiration for, and Mr. Gimbel is not only a lawyer I

5 have had a great admiration for but also is my former law

6 clerk. I have great confidence that by the end of this case

7 neither will ever want to see me again, but until then, I just

8 wanted to mention that on the record.

9 OK. I'm ready to hear oral argument starting with the

10 movant.

11 MR. GIMBEL: Good afternoon. As the Court is aware,

12 Kiryas Joel is a community in upstate New York. It has over

13 20,000 residents.

14 THE COURT: All of whom are litigious.

15 MR. GIMBEL: Some of whom, at least, are litigious.

16 The plaintiffs are ten of those litigious residents who are

17 upset with the village government. But rather than exercising

18 their remedy at the ballot box, they decided to come here and

19 ask the Court to make the village government disappear. The

20 ask the Court to dissolve the village, or at the very least bar

21 its elected officials from office based on a variety of claims

22 of constitutional violations. The complaint is long and it's

23 full of melodrama. It has more than 400 paragraphs of

24 allegations laced with inflammatory rhetoric about how Kiryas

25 Joel is operated as a theocracy. But we think if you step back


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1 from the rhetoric and if you analyze the pleading claim by

2 claim and plaintiff by plaintiff, you'll come to the

3 inescapable conclusion that the complaint is full of sound and

4 fury but ultimately signifies nothing.

5 THE COURT: Let me ask you this, one of their

6 allegations is that the community room law impermissibly

7 advances religion because this is just a cover up for both

8 rooms that operate for religious purposes and also gives rise

9 to a community room fund that has been used, they say,

10 exclusively to fund the construction of places of worship for

11 what I will call the majority group. Why doesn't that survive?

12 Assuming for sake of argument that all the other claims died --

13 I'm just saying that for the sake of argument -- but why

14 doesn't that one survive?

15 MR. GIMBEL: I think there are a number of reasons,

16 your Honor. The first is that they don't allege, any of the

17 plaintiffs, they have been personally aggrieved by the

18 application of this community room law. If you read the

19 complaint carefully, there is a non-party, Lipa Deutsch, who

20 claims that the village applied the community room law in a

21 discriminatory manner, but it's not a claim made the

22 plaintiffs. So when they have a fundamental problem with

23 standing.

24 But if you get beyond the standing problem, the law

25 survives establishment clause challenge because it's a law that


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1 completely controlled on its face. And although the plaintiffs

2 claim that the effect of the law is establish religion because

3 of all of these community rooms are in fact used for religious

4 purposes by the majority congregation, that claim fails under

5 Supreme Court precedent because the fact that the rooms are

6 used, if plaintiffs are right, for religious purpose, is the

7 result of private choices made by individual residents of the

8 village. And so it doesn't suggest a government endorsement of

9 religion or carry any sort of imprimatur of the government.

10 And there's a line of Supreme Court cases that

11 basically say that when you have a neutral government statute

12 that provides a benefit to a broad class of citizens and those

13 citizens then in turn choose to use that benefit for religious

14 purposes, that doesn't implicate the establishment clause

15 because it's not a governmental act and it's not understood as

16 such. It's not understood as a governmental endorsement of

17 religion, it's understood as the choice of private citizens.

18 And probably the leading case on that point is the Supreme

19 Court's decision in Zelman v. Simmons-Harris.

20 THE COURT: Would that be true where the majority of

21 the citizens of a particular municipality were also members of

22 the group whose religion was being advanced by the law?

23 MR. GIMBEL: I think the answer is that it doesn't

24 matter how many people are taking advantage of the law for

25 religious purpose. And there's a discussion in Zelman where


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1 the court goes into the fact -- Zelman involved tuition

2 vouchers, and the court goes into the fact that under certain

3 analyses and the statistics up to 96 percent of the people who

4 were receiving those vouchers were using them in effect to fund

5 religious education. The court said that's not really the

6 issue, the issue is: Is this a function of private choice or

7 is it a function of governmental dictate?

8 THE COURT: Let's assume -- I have to go back and read

9 Zelman, but let assume that a community that consisted

10 96 percent of members of some obscure religious sect, the X

11 religion, that community passed a lot that said you can use

12 private school vouchers for any appropriate purpose, but they

13 knew and intended when they passed the law that they were

14 really going to use it to advance their religion, they just

15 said we will put on for the moment our secular hat, but our

16 purpose, as anyone would know if they put us on a lie detector,

17 is really to advance our religion. That wouldn't pass muster

18 under Zelman, would it?

19 MR. GIMBEL: I think it would, because again you have

20 a neutral law, and the only reason that there's a religious

21 purpose or the benefit is being put to religious use is because

22 citizens are exercising the right of choices.

23 THE COURT: So in your view, as long as that

24 superficial neutrality is preserved, you can never pierce

25 beyond a sham?


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1 MR. GIMBEL: Well, I don't think --

2 THE COURT: Supposing -- forgive me, I'm interrupting

3 you, but I'll make it even harder for you, so to speak. So

4 there's a tape recording of a meeting of the city council in my

5 hypothetical community, and at the meeting of the city council

6 off the record the members of the city council say we really

7 need to fund the money into our religion, here's a nice way to

8 do it. We'll pass a superficially neutral law that in fact

9 under the sham of private choice will allow us to take lots of

10 public money and put it to the benefit of our religion, now

11 let's go into the room and pass this neutral law. Unbeknownst

12 to them, unfortunately, the FBI is wiretapping this

13 conversation. And you're saying that still wouldn't matter?

14 MR. GIMBEL: What I'm saying is the critical thing is:

15 Is the law neutral on its face and is it put to a religious

16 purpose by virtue of private choice? And what we have here is

17 I think a step removed from your hypothetical, because this

18 fact we have a complaint where --

19 THE COURT: I could make it worse for you.

20 MR. GIMBEL: I'm sure you could make it much worse.

21 But we do have a complaint that alleges one person

22 attempted to use a community room for a secular purpose, and

23 the complaint concedes that that individual was in fact allowed

24 to use a community room for secular purpose. So what this

25 shows you is that private choices aren't a sham, they could be


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1 made in the village, and one can, and consistent with the

2 completely neutral character of the law, use the community room

3 for recreational purposes and purposes unrelated to religion.

4 And that's what makes it acceptable, because the law does not

5 suggest governmental endorsement of religion. It's neutral on

6 its face. In application, these rooms may be used for

7 religious purposes, but that's, again, the result of private

8 citizens making choices.

9 THE COURT: Maybe we ought to pause there, although

10 there's a lot of other claims, but just to hear your

11 adversary's response on this particular claim, then we'll come

12 back to moving counsel.

13 MR. SUSSMAN: Thank you, your Honor, may it please the

14 Court.

15 I'm frankly a bit astounded by the argument, because I

16 don't really follow it entirely. The complaint alleges, just

17 so we're clear, that the village of Kiryas Joel has passed on

18 ordinance, local law. The purpose of the local law is to

19 ensure or require or force private parties, developers, to

20 dedicate monies to a quote, community room, which the makers of

21 the law expect, require, effectively, to be used for religious

22 purposes which foster the entanglement that they otherwise have

23 fostered between themselves and the main congregation which

24 they either lead or are members of.

25 So when counsel says that the intervening thing that


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1 makes this constitutionally permissible is the personal choice,

2 the complaint does not allege that. He may allege that, the

3 proof at the end of the trial may allege that. I don't believe

4 they will or come close to that. The issue is the coercive

5 nature of the use of government, the Village of Kiryas Joel, to

6 require for a religious reason, not a secular reason,

7 developers, private developers, to do what they otherwise would

8 not do to foster religion.

9 I mean I don't see on that basis --

10 THE COURT: Well, what he's saying in part -- I want

11 to get back to the standing issue in a minute, but what he is

12 saying in part is if the law is neutral on its face, the fact

13 that it in practice works out the way you allege would not be

14 an impediment. So that, for example, if a councilman of the

15 city council somewhere in a hypothetical said, you know, we

16 should tax everyone in the following way, and then use it for

17 certain community purposes to be decided by the individual

18 recipients, some of which will be for religious purposes, and

19 someone on that city council said gee whiz, as a practical

20 matter, that means most of the money is going to be used to

21 support a particular kind of religious building or something

22 like that, and the other city councilman said well, that may

23 be, but why should we not take advantage of what the

24 Constitution allows in this respect when it will be a neutral

25 law, and as times change and the composition of our community


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1 changes it may a be used in different ways. So he is saying

2 the fact that you allege that it is being used for primarily

3 religious purposes is not sufficient by itself, and what is

4 your basis for alleging that the intent was religious purpose?

5 MR. SUSSMAN: Well, you can determine the intent by

6 the fact that the makers of the law are the same individuals --

7 that is, the local government -- which then operationally

8 controls the decision. Counsel is saying that the decisions

9 are made on some sort of decentralized, localized basis. We

10 allege very plainly, it seems to me, that's not the case, that

11 this was a contrivance which was intended to allow the village

12 to use its governmental authority to intentionally foster the

13 religion of the majority.

14 THE COURT: I thought in the formulation you used a

15 minute ago the victims were the developers.

16 MR. SUSSMAN: I'm not saying the victims are the

17 developers, what I'm saying is the law -- the law as it's

18 constructed requires developers -- that's how I formulated

19 it -- to do a certain act, whether they would otherwise do that

20 act or not. The complaint indicates that -- and the primary

21 problem with this is that the village has, with a primary

22 purpose of fostering a particular religion to the exclusion of

23 others, because they are the majority who control, both the

24 village boards and the congregations.

25 It's not a situation where, as your hypothetical


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1 posits, individual choice is the predominant feature. It's the

2 contrary, individual choice is subordinated here. There's

3 nothing in the complaint that indicates that individual choice

4 dictates the result, as in the voucher case cited in Zelman,

5 the complaint asserts the control by the majority institutions

6 not only inform the enactment, which is meant to funnel funds

7 for a religious purpose from the beginning, which is your

8 hypothetical. I agree with your hypothetical.

9 THE COURT: How are the plaintiffs here injured?

10 MR. SUSSMAN: Well, in the context of all of our

11 allegations, the plaintiffs are -- if you talk about the

12 organizational plaintiffs, the organizational plaintiffs are

13 injured because what you end of having, Kiryas Joel Alliance,

14 are a series of community rooms dominated by one religious

15 group. The members of the other group are not welcome in the

16 rooms, just like they were not welcome in the main synagogue

17 when we had to move the voting out of Kiryas Joel, and there is

18 a constant need, if you will, to defend the members of our

19 organization from the imposition of the other organization

20 which is now given a heightened position.

21 THE COURT: And this goes to your other claims as

22 well. Are you asserting that your clients are members of a

23 different religion, or are you asserting they are members of

24 same religious group who just disagree with who should be the

25 leader of the group?


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1 MR. SUSSMAN: Well, as we said earlier, they're all

2 Satmar Jews, so we cannot say they're a different religion, and

3 I don't say they're a different religion. But there are

4 differences in a religion, as I'm sure is obvious to anyone,

5 probably the most single important characteristic is who is

6 your leader, who is your leader, what your leader tells you to

7 do and believe.

8 Here, as is understood, there are two factions, one

9 faction has a hegemony in Williamsburg and another faction has

10 a hegemony in Kiryas Joel. In Kiryas Joel, the faction with

11 the hegemony, the one that we believe control both the

12 religious and civic life, through the examples we have given in

13 the complaint, have continually oppressed a particular group in

14 a number of enumerated ways, which are not exclusive in the

15 complaint but the complaint gives example of those.

16 The Kiryas Joel Alliance, one of its functions is to

17 advocate for and curb, if you will, that oppression, so they

18 hire security guards to accompany individuals expending their

19 resources -- which is one of the tasks for organizational

20 standing that remains valid -- in order to ensure that their

21 members are safe, thereby gaining organizational standing in

22 this case. Their individual members have been affected, and

23 some of them are plaintiffs individually, by a plethora of

24 specific practices, but the basic practice that they are

25 complaining about is they live in a village where there is


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1 this, across all spheres of social life -- that means

2 intersection between the government and residences --

3 discrimination.

4 And you can pick apart --

5 THE COURT: I'm trying to determine what the nature of

6 that discrimination is. For example, if you had again a

7 hypothetical community, you had a situation where one group of

8 African-Americans discriminated against another group of

9 African-Americans because of some political differences they

10 had or some original differences they had or whatever, it would

11 not be racial discrimination. It may be actionable under some

12 other law, but it would not be racial discrimination. So to

13 the extent that you're claiming, if you are, religious

14 discrimination or religious entanglement or so forth, I'm not

15 sure that is what going on here.

16 MR. SUSSMAN: I think it is what's going on here.

17 Because as I said earlier and as I think the complaint makes

18 clear, the basis of the discrimination in this case is one

19 group's membership in a religious organization, a synagogue, a

20 congretation, which is distinct in leadership and in some of

21 its fundamentals, some of its belief systems, from the other

22 group. They're both Satmar Jews, I'm not arguing that.

23 THE COURT: What is the difference in their creed, the

24 fundamentals that you refer to, other than they disagree on the

25 leadership?


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1 MR. SUSSMAN: The fundamental difference in creed, as

2 I would explain it to the Court, and I think this goes a little

3 beyond the complaint, so I'll try to explain.

4 THE COURT: If necessary, if that were critical, you

5 might be given leave to amend.

6 MR. SUSSMAN: Thank you. I think there are two -- as

7 I have been in this community for over 20 years, there are two

8 or three most discernible differences, one is that one group

9 believes that it is appropriate to take and utilize state funds

10 to directly advance religion. The other group believes as a

11 matter of religious belief and practice that it is

12 impermissible to do so because doing so, in the case of a

13 public school, which one group supports and the other

14 vehemently opposes, is essentially to deceive the state by

15 claiming that you're not engaging in religious activity in that

16 school when you are and must in order to maintain the

17 attributes of your religion.

18 THE COURT: Is that really a religious difference?

19 MR. SUSSMAN: It is.

20 THE COURT: It has been true from time immemorial in

21 this country that when religious groups were small and weak

22 they were great believers in total separation of church and

23 state, and as they became larger and more powerful, their views

24 changed. But I'm not sure that change was a religious creed

25 change.


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1 MR. SUSSMAN: Here's why I would define it as

2 religion. One group it prepared to represent to the state that

3 a number of its members, here defined broadly as handicapped or

4 disabled, will be educated in a way bereft of religion in a

5 public school. The other group believes as a matter of

6 religious principle that you cannot separate those who are, if

7 you will, disabled or handicapped from religious education.

8 You must not take the largess of the state or the broader

9 community, and you will take care of your own as a religious

10 obligation, and not, if you will, lie or deceive the state. I

11 think that is a religious distinction. I don't think it's

12 merely a political distinction, I think it's a religious

13 distinction because it relates to fundamental religious values

14 of inclusion of honesty or integrity in the public process and

15 in the individual process.

16 I also think there are significant differences with

17 regard to views about Israel and whether Israel represents a

18 state which can be, from a religious -- you certainly

19 understand, I think what I'm getting to -- from a religious

20 point of view, accepted, traveled to, tolerate, revered by one

21 group and the other group rejects it as something which is

22 unfulfilled.

23 THE COURT: I think that may qualify as religious.

24 MR. SUSSMAN: And the disputes, if one reads about

25 them in the journals and papers, that is certainly highlighted.


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1 Then there are other more technical religious -- but I think

2 fundamentally, going back to your initial question, the

3 greatest issue is who do you recognize as having responsibility

4 for dictating and passing on the creed.

5 And in this case, the two groups have fundamentally

6 different understandings of who has that legitimacy, and that

7 is at base a religious dispute. It can obviously have

8 political manifestations, everything can, but it has to do with

9 how one understands succession in the religious sense. And

10 that is the heart of controversy as it has existed since the

11 death of grand rebbe. So I think it's religious in nature.

12 And the other part that I make clear to the Court --

13 and this is not in the complaint -- this has been played out in

14 a deeply -- in rituals and institutions which are deeply

15 religious institutions, like marriage, who can marry someone,

16 that, too, is a religious ceremony in this community. And as

17 the complaint does aver to, with regard to marriage, our group

18 marries through rabbis who are not recognized by theirs, now at

19 facilities not recognized by theirs, and that has engendered

20 some of the vitriol which is outlined in the complaint. I

21 submit to the Court that, too, in this context has religious

22 connotation, denoting who is able, from a religious

23 perspective, is a deeply religious determination, it's not

24 merely something else.

25 THE COURT: All right. Let me thank you, that's


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1 helpful.

2 Let me go back to Mr. Gimbel.

3 MR. GIMBEL: Briefly, your Honor, a couple of points.

4 First on the standing point, none of the plaintiffs in this

5 case claim to be aggrieved by the operation of community law.

6 There's not a plaintiff who came in and said I tried to use the

7 community room for secular purposes and I wasn't permitted.

8 There's not a plaintiff in the case who said I was kept out of

9 the community room because I'm not part of the majority

10 congregation.

11 THE COURT: I have to go back, and it is a somewhat

12 verbose claim, part of claim is this is serving to establish

13 one religious sect at the cost -- at the implicit cost of the

14 others.

15 MR. GIMBEL: Well, certainly that claim is made, but

16 again, that goes back to the fact that this is law that's

17 neutral on its face. And if what is happening in community

18 rooms is one sect is using them more than another, that's a

19 function of private choice. There's no allegation by any

20 plaintiff they have been preventing from using a community room

21 for purposes of their own so-called dissident congretation.

22 And what we often hear in response to arguments that

23 we make about standing from Mr. Sussman is that the Kiryas Joel

24 Alliance can come in and make all of these claims, and I want

25 to address that briefly. Because it's very clear under Second


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1 Circuit law that Section 1983 claims are personal to the

2 plaintiff. And what that means is an organization can't come

3 in on a representational standing theory and advance a 1983

4 claim on behalf of their various members, and that that's

5 clearly established.

6 THE COURT: The only people that the Supreme Court

7 recognizes other than human beings are corporations.

8 MR. GIMBEL: Quite correct, your Honor.

9 And the Kiryas Joel Alliance really only alleges in

10 this complaint two things, according to Mr. Sussman, that

11 constitute, in its view, an injury. First, it says well, we

12 had to once retain the honest ballot association to monitoring

13 an election back in 2004, and second, we have had to hire

14 private security because the KJ police, public safety

15 department isn't providing adequate security.

16 So on the first of these, the honest ballot

17 association claim, there's no question, Mr. Sussman doesn't

18 dispute it, that these claims of election irregularities are

19 time barred. There's a three-year statute of limitations.

20 That doesn't getting into the standing of the complaint about

21 anything.

22 And with respect to the claims about the public safety

23 department, at most, that would give it standing to complain

24 about public safety, it wouldn't give it standing to come in

25 here and complain about community room law or any of the many


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1 other things that are going on in this complaint that aren't

2 tied to any particular individual claim.

3 And that's really one of the fundamental problems with

4 this complaint. When you look at it claim by claim and

5 plaintiff by plaintiff, you realize there's a whole litany of

6 allegations here that really have to do with third parties that

7 are not before the Court.

8 I did want to briefly address the point that your

9 Honor made about whether this is really a case of religious

10 discrimination. And there are a lot of conclusionary

11 allegations in the complaint about how the so-called dissidents

12 are being discriminated against on the basis of their religion.

13 But as Mr. Sussman conceded when he said that his explanation

14 was beyond the complaint, there isn't actually any explanation

15 in here at all of any belief that supposedly differs between

16 the dissidents on the one hand and the so-called majority

17 congregation on the other. They're all Satmar Hasidim, and as

18 far as the complaint goes --

19 THE COURT: Isn't there -- I mean I don't know whether

20 I can look at this for these purposes, but there are certainly

21 many reported cases involving these two groups, and the heart

22 it would seem of the difference is the one that Mr. Sussman

23 mentioned as who should be the leader and make the religious

24 determination as the leader and pass on the religious creed.

25 And there the two sides have obvious differences.


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1 MR. GIMBEL: There is a difference there, and we cited

2 a case that I think is actually directly on point on this, this

3 is the Nachman Brach case, which is unpublished, so we put in

4 as Exhibit L to my declaration.

5 THE COURT: Let me pull that out. Hold on just one

6 second.

7 MR. GIMBEL: And the case considers the question of

8 whether discrimination on the basis of the failure to accept

9 the legitimacy of a particular leader is discrimination on the

10 basis of religion for purposes of the Section 1985 claim. And

11 the Court concludes in that case that in fact it's not

12 discrimination on the basis of religion. There's really one

13 religion here, the Satmar Hasidim, and it's really just

14 discrimination on basis of the failure to accept a particular

15 rabbi, which is something else entirely.

16 THE COURT: This is very helpful, and I need to read

17 it in more detail, but is that really true? Supposing you

18 have, as I think historically is the case many times, two

19 Catholic groups, one of whom says the Pope is Joe and the other

20 of who says the Pope is Sam. If I recall my history right,

21 that was an issue that came up repeatedly in the Middle Ages,

22 and there were very substantial disagreements as to who was the

23 real Pope. And that was critical and people died because of

24 that difference, because the Pope was viewed not just simply as

25 we might view it someone who is the leader for the moment,


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1 because as the whole embodiment of the religion, the person who

2 was vested with the power to determine what was religiously

3 correct and incorrect and to determine that for ages to come.

4 Why isn't that a religious difference?

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1 MR. GIMBER: Well, I think when you have a religious

2 difference that is just to who the leader is, who the rabbi is

3 so to speak, that really what you have is an internecine,

4 intramural dispute within a single religion that doesn't bring

5 in the same -- bring into play the whole range of concerns

6 about discrimination on the basis of religious creed.

7 Now, it is of course true that religion could develop

8 over time, I suppose, if there were real differences in creed

9 that developed over time by operation of differences in

10 leadership but, again, those differences haven't been pleaded

11 in this complaint.

12 Mr. Sussman talks about differences over whether

13 Israel is a state but that is not pleaded nor is it explained

14 that that's somehow a function of religious creed.

15 Mr. Sussman talks about how one group --

16 THE COURT: I agree, but on the other hand he was up

17 front that that wasn't in the complaint.

18 MR. GIMBEL: Right.

19 THE COURT: I said if that were critical I might allow

20 amendment for that purpose, but what he is representing is that

21 their views towards Israel follow about their views about the

22 Messiah and things of that sort and the Messianic, the nature

23 of the Messianic views; that would be a fairly central

24 religious difference. If he is correct would it be.

25 MR. GIMBEL: It could be a central religious


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1 difference but the answer is we don't know what we are shooting

2 at because it hasn't been identified in the complaint.

3 THE COURT: Go ahead. I'm sorry.

4 MR. GIMBEL: So, getting back, if I may, your Honor, I

5 think that they have a community derivative claim, we have

6 addressed that; that's one aspect of the establishment clause.

7 The other principal reason that they seem to say there is an

8 establishment clause violation is there is supposedly

9 interlocking leadership between the dominant congregation and

10 the village and there are a couple of answers I think to this

11 argument and the first is that it is res judicata in that these

12 very same allegations were raised in Waldman I and Waldman II

13 and in the Casheratam litigation before your Honor and there is

14 a good discussion of this in the Second Circuit's opinion in

15 this in Waldman II which talks about all of the allegations

16 that were made in support of various claims and, sure enough,

17 allegation of interlocking leadership was in all of the past

18 complaints.

19 But, getting beyond that hurdle, I think it goes to

20 there is another defect which is that the whole establishment

21 clause theory here has been discredited and that is to say the

22 theory that it is an establishment of religion to have members

23 in the clergy serve in government and the Supreme Court in the

24 McDaniel case considered essentially just this argument, it

25 considered a Tennessee law that disqualified clergy from


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18V5kir2 argument

1 serving as delegates to a constitutional convention. And

2 Tennessee came in and defended the law and said, look, this law

3 is necessary to prevent an establishment of religion because if

4 we let these clergy members serve in public office what they're

5 going to do is they're going to favor their sect and they're

6 going to thwart the objectives of other religious sects. The

7 Court rejected that rationale.

8 First of all, it says there is no reason to suspect

9 that someone who is a member of the clergy will necessarily

10 favor one sect over another but beyond that it -- and this is

11 critical -- it said that if you hold that it is an

12 establishment clause violation for a clergy member to serve in

13 public office then what you are really doing at the end of the

14 day is penalizing members of the clergy for exercising their

15 religious rights to become members of the clergy by withholding

16 political rights.

17 And so, at end of the day you can't bring an

18 establishment clause claim based purely on the theory that

19 there is interlocking leadership between a particular religious

20 organization and village government. You have got to do

21 something more. And I think the something more is really what

22 we don't have.

23 THE COURT: The reason I start off with the community

24 room claim is because it was the one I had the most questions

25 about. There are so many claims here that I don't want to have


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18V5kir2 argument

1 counsel spend what would take, I'm sure, far into the evening

2 to discuss each and every claim but I will give each side the

3 opportunity if there is something you particularly wanted to

4 respond to or particularly wanted to stress that you felt that

5 it was not perhaps covered as fully in your briefs as you

6 ideally would like, this would be the time to cover it.

7 So, with that sort of cabining, again, let's hear

8 first from movant's counsel and then from plaintiff's counsel.

9 MR. GIMBEL: Well, with those guidelines in mind I

10 would make a couple of brief points, your Honor. The first is

11 that there is a whole universe of claims in this case that fall

12 into a legal category called been there and done that and

13 those, of course, are the claims that were litigated and

14 decided up and down in state court and refer here in particular

15 to the so-called Bais Joel claims that have to do with Bais

16 Joel's desires, supposed desire to use a residential apartment

17 as a synagogue where it can hold services for hundreds of

18 people there are two state court decisions that say that can't

19 be done unless it gets expanded easements because the property

20 in question is limited residential easements for access and for

21 utilities and there is a requirement embedded in those state

22 court decisions that you go to the village and you get

23 municipal approval and you prove that you have expanded

24 easement rights before you engage in any religious services

25 here. And I think what Mr. Sussman's clients are attempting to


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18V5kir2 argument

1 do here is relitigate that issue yet again under establishment

2 clause theories free exercise theories and so that falls in the

3 been there and done that category.

4 Mr. Sussman, and we only touched upon briefly on

5 reply, says that there were two sort of --

6 THE COURT: I like the doctrine of been there done

7 that, it has so much better ring than res judicata and

8 collateral estoppel.

9 MR. GIMBEL: I'm terrible at pronouncing Latin.

10 THE COURT: Go ahead.

11 MR. GIMBEL: Mr. Sussman tries to avoid preclusion for

12 two reasons and I want to touch on those. He says, number one,

13 that the town -- that he is really focused on two independent

14 fact patterns that weren't before the Court in the prior

15 litigations. He says, number one, there is a fact pattern that

16 revolves around the village's attempt to thwart this

17 application process for approval to use this single family

18 residence as a synagogue and, number two, there is a fact

19 pattern that revolved around what he calls a construction blitz

20 which was some parking lot work that occurred outside of the

21 residence and led to a fracas where some people were arrested.

22 Neither of these arguments are sufficient to avoid res

23 judicata. On the first one the village's supposed attempt to

24 thwart the application process, there is really almost nothing

25 pleaded in the complaint. There is an allegation that the


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18V5kir2 argument

1 village failed to form a properly constituted zoning board but

2 that claim was made in Bais Joel II. The second Bais Joel

3 litigation in fact resulted in a judgment by the village that

4 it would reconstitute the zoning board so that doesn't give

5 rise to a claim here. There is a judgment that bars it that

6 renders it moot. But, he again goes beyond the complaint in

7 his opposition briefs, he introduced all these other

8 allegations about how, first of all, after the zoning board was

9 reconstituted he claims that it failed to act on the theory

10 that in 1975 the Town of Monroe site plan gave them the

11 permission they desired to use this for religious services. It

12 is not pleaded in the complaint, number one. Number two, it is

13 frivolous because this very same theory about the 1975 Town of

14 Monroe site plan which allegedly was approved before the

15 Village of Kiryas Joel was incorporated was litigated in State

16 Court and rejected by State Court.

17 So, the fact that the Village doesn't act on this

18 discredited theory that has actually been ridiculed in the

19 State Court decision really doesn't give rise to a claim.

20 The second is that Mr. Sussman alleges that the

21 Village hasn't acted on a site plan application that was

22 supposedly submitted to use this property again for religious

23 services and the critical point -- I would go on at length

24 about this but the critical point here is that this site plan

25 application that was submitted didn't address the elephant in


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18V5kir2 argument

1 the room and the elephant in the room is that this single

2 family residential property has been ruled by the state court

3 to have limited residential easements and there is a state

4 court ruling that says you can't use this as a synagogue until

5 you obtain expanded easements from the surrounding land owners.

6 So, this site plan application that goes in doesn't

7 address this elephant in the room at all and in fact plaintiffs

8 don't plead that they ever fulfilled this court ordered

9 prerequisite to the expanded right that they're seeking. And

10 so, to the extent that anyone is thwarting the plaintiffs it is

11 the plaintiffs themselves and it is the plaintiffs' limited

12 property rights. They've got a single-family apartment with an

13 easement that says it can be used for residential purposes for

14 access and utilities. You simply can't turn around and use

15 that as a synagogue without invading the property rights of

16 another party. And that is what is thwarting the use of this

17 residence and nothing else, nothing on the part of the village.

18 A couple other points, briefly. They attempt to bring

19 a claim under the religious land use and institutionalized

20 persons act based on this same allegations about the residents.

21 It is barred because it is not ripe. There is a very clear

22 Second Circuit decision in Murphy that says that before you

23 bring this claim you have to have a final definitive decision

24 from the local zoning authorities. They haven't done that

25 because they haven't addressed this elephant in the room and


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18V5kir2 argument

1 submitted a complete application and gone through the process.

2 There are a bunch of selective -- equal protection and

3 selective enforcement claims. There is a disparate taxation

4 claim that dissidents in the village are discriminated against

5 in the property taxes. This fails for lack of standing. There

6 is no plaintiff in the case who claims injury and I think

7 Mr. Sussman sort of abandons that claim in a footnote so it

8 should be dismissed.

9 There is a claim that the village discriminates by

10 assessing municipal fees in a disparate manner. Again, this

11 claim is barred for lack of standing. The parties who are

12 affected are non-party organizations not before the Court and,

13 for that matter, there is a prior litigation there, too. So,

14 if anyone had standing to assert this claim it would be barred

15 by prior federal case which resulted in stipulation and

16 dismissal. Then we get to the remaining equal protection claim

17 of public order noise and zoning ordinances and if you look at

18 them again claim by claim, the critical defect here is that

19 they don't plead an essential element of selective enforcement

20 which is that a similarly situated party was treated

21 differently. So, just by way of example, they have an

22 allegation that Plaintiff Tenenbaum applied for a permit to

23 hold a mass protest on a small residential street that houses

24 an ambulance service and didn't receive his permit. Surprise,

25 surprise.


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18V5kir2 argument

1 They don't allege that anybody else was granted a

2 permit under similar circumstances or look to hold a protest

3 without a permit. There is no similarly situated party. That

4 same problem infects claims of selective enforcement from a

5 whole bunch of the plaintiffs. I wouldn't go through them one

6 by one here because they're all addressed.

7 I do want to address briefly one legal argument that

8 Mr. Sussman makes. He says that under the Second Circuit's

9 decision in Pike v. Cuomo there is no need to plead disparate

10 treatment of similarly situated parties and that actually just

11 reads what is a very narrow holding in Pike far too broadly.

12 Pike is a case that involved Native American

13 plaintiffs who basically brought an equal protection claim on

14 the theory that the State of New York had failed to protect

15 them from very serious crimes, arson, murder, etc. over a

16 period of years, and it is not a selective enforcement claim it

17 is a you-failed-to-protect-us claim. What the Second Circuit

18 says is, look, it would probably be impossible to find

19 similarly situated parties in this case because the plaintiffs

20 are Native Americans who reside on quasi-sovereign reservation,

21 but in this particular kind of equal protection case it is

22 sufficient if you go out and plead that the defendants acted

23 out of discriminatory animus. But, what is critical to

24 remember about Pike is that it goes on to draw a distinction:

25 It says that's not true of selective prosecution. In a


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18V5kir2 argument

1 selective prosecution claim you still have to go plead that

2 similarly situated parties were not prosecuted, were treated

3 differently. What we have here for the most part with equal

4 protection claims are selective enforcement type claims where

5 that requirement continues to apply.

6 So, the only other point I would make for the moment,

7 your Honor, is going back to the establishment clause, a couple

8 of other things in support of this establishment clause, one is

9 religious gerrymandering. I said plea but that was actually a

10 mistake because if you look at complaint there are no

11 allegations about religious gerrymandering but in their

12 opposition briefs they claim that the boundaries of Kiryas Joel

13 was drawn many years ago to ensure that the majority of the

14 congregation would be in control and that that, in itself, is

15 an establishment of religion and I think that also falls in the

16 been there done that category because in the Waldman litigation

17 that allegation was raised and also because the Supreme Court

18 touched on it when it considered the validity of the Kiryas

19 Joel School District.

20 As you recall, the Supreme Court invalidated a special

21 act of the legislature which created the school district but in

22 doing so it drew a distinction and said we are not talking here

23 about the formation of the village itself because that was done

24 pursuant to a religiously neutral self-incorporation scheme

25 that is available to any citizen of the State of New York and


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18V5kir2 argument

1 according to objective criteria -- and Justice Kennedy

2 explained -- that in a concurrence that that really doesn't

3 raise establishment clause concerns because you have private

4 citizens coming in and take advantage of the neutral statute to

5 create a community and that doesn't suggest a governmental act

6 to endorse religion. And also that if you were to hold that

7 that was enough to simply indicate the establishment clause you

8 get into a problem because what you would do at the end of the

9 day is you would be saying that religious individuals who

10 choose to live together can't take advantage of self-governance

11 rights that are extended to all other citizens in the state to

12 form villages pursuant to this legal statute.

13 And the remaining establishment clause arguments I

14 really think are attempts to resurrect otherwise defective

15 claims under an establishment clause theory so they're

16 allegations that the time-barred election fraud example, for

17 example Mr. Sussman says, well, that proves an establishment

18 clause violation. But there is no exception to the statute of

19 limitations for establishment clause claims and you can't

20 resuscitate stale claims under another legal theory. At the

21 end of the day the whole just isn't greater than the sum of its

22 defective parts and the establishment clause claim should be

23 dismissed.

24 THE COURT: Thank you very much. Let me hear from

25 Mr. Sussman.


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18V5kir2 argument

1 MR. SUSSMAN: I think others may want to speak for

2 defendants.

3 THE COURT: I'm sorry, yes. Does anyone else want to

4 speak.

5 MR. MAHON: Your Honor, I would like to speak.

6 Richard Mahon for defendants the Congregation and David

7 Ekstein.

8 THE COURT: Okay. Actually, bear with me one half

9 second. (Pause)

10 Go ahead.

11 MR. MAHON: Thank you, your Honor.

12 Your Honor, I will not repeat the points that

13 Mr. Gimbel so amply made. I want to focus on the one claim

14 that he didn't talk about and that is conspiracy claim.

15 Of all the claims in the complaint it is by far the

16 weakest claim and you may not recognize the name David Ekstein

17 because it only appears in two paragraphs in the entire

18 complaint and everybody had all the right cases but nobody

19 really tied it together, your Honor, and I just want to

20 clarify.

21 If you look at all the cases with the Second Circuit

22 in the various districts the essential elements you can distill

23 from all the cases. If you are going to plead conspiracy under

24 Section 1985 you have to show facially specific overt acts, you

25 have to plead those acts, you have to plead an agreement, you


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18V5kir2 argument

1 have got to plead joint action; a particular end, often

2 unlawful or discriminatory end, intention to enter into a

3 conspiracy and a meeting of the minds of the alleged

4 co-conspirators. Nowhere in all 427 allegations is that

5 anywhere mentioned, your Honor.

6 Like Mr. Sussman I have a long history in the

7 community. I've spent 20 years involved in various litigation.

8 I tried the case involving Judge Owen and Bais Joel. I also

9 was involved in a case before Judge Elaine Slobod last year

10 where she dismissed all these claims based on res judicata

11 grounds.

12 The one other point, your Honor -- again, I'm going to

13 cut right to it -- the other point is that there is the

14 allegation or suggestion that a CYL congregation closed the

15 shul and all of the cases, whether it is the Supreme Court

16 level cases or the appellate division cases are before the

17 Court. The Courts closed this down. This was intended to be

18 simply an apartment and what was indicated in the papers is

19 that there is no surrounding land, it is literally a footprint.

20 It is as if, your Honor, somebody conveyed a wing of your

21 house, your living room to somebody else without any kind of

22 easements for access, for parking, for anything of that nature.

23 And so, there was a problem created years ago which is

24 beyond the scope of this litigation and now it is coming to

25 roost now. We have an apartment that was never intended to be


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18V5kir2 argument

1 a house of worship. The courts saw that and the courts closed

2 it down. We also applied to the Appellate Division to enforce

3 that because after the order closing it down they continued to

4 operate. Judge Owen rendered an order of contempt. That was

5 also affirmed by the Appellate Division. In total, your Honor,

6 we had four or five years of continuous litigation, we had a

7 trial in the matter. I have been to the Appellate Division at

8 least six times on this issue. Of all the claims in the

9 complaint conspiracy is the one that is the weakest of all,

10 your Honor.

11 THE COURT: Thank you very much.

12 What I infer from what you just said is that the sad

13 state of the legal economy would not be a problem if all

14 communities were like Kiryas Joel. But, let's hear now from

15 plaintiff's counsel.

16 MR. SUSSMAN: Thank you, Judge.

17 I think, your Honor, I would like to start with the

18 standing analysis since that was raised. I think the current

19 leading case is pronounced Nnebe, 644 F.3d 147. Counsel for

20 the village has stated that there is standing with regard to

21 the Kiryas Joel Alliance because with regard to the area of

22 security, the complaint makes clear that monies have been

23 expended by that organization, its resources have been expended

24 in order to protect its members in light of the conduct of the

25 village and he says, okay, there may be standing there but that


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18V5kir2 argument

1 standing is only with regard to that claim, not other claims.

2 Your Honor, I think that if there is standing for the

3 organization to protect its members which is part of its

4 organizational purpose, and that standing relates to its own

5 expenditure of resources, it is predictable in the future based

6 on the pervasiveness of what is alleged in the complaint that

7 that standing can be cabined to a particular claim. The

8 standing relates to the establishment clause because the police

9 activity which we have alleged in great detail is activity,

10 your Honor, which pervades the community and is reflective of

11 the preference which the police agency has demonstrated over a

12 long period of time against one group and for the other.

13 Now, the analysis in Nnebe states, and I'm quoting,

14 this is at 157: We have recognized that only a "perceptible

15 impairment" of an organizations activities is necessary for

16 there being an injury in fact citing Reglan, 6 F.3d to 698.

17 And it is clear reading the standing decision which is, as the

18 Court mentioned, represents a somewhat peculiar doctrine.

19 Organizations are distinct from corporations even though both

20 have members and really should be able to advocate for their

21 members but applying these you must do that, it is the Second

22 Circuit law, we clearly have standing for Kiryas Joel Alliance

23 and I would suggest if that standing is not limited to one area

24 it is limited to the establishment claim.

25 Now, counsel raised a number of other issues and,


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18V5kir2 argument

1 again, I think the case law should be looked at carefully.

2 McDaniel is a Second Circuit case cited at 435 U.S.

3 618, 98 Supreme Court 1322 is entirely inapposite to this

4 controversy. It has nothing to do with this case. We have

5 never taken the position that a religious person, because of

6 his religion, should be barred from office. Frankly, from my

7 point of view, that is an absurd position and I think the

8 Supreme Court in McDaniel is exactly right. There can't be a

9 speculation that by dint of religious faith someone will

10 violate the Constitution. And that's clearly not our position.

11 Our position is that over a long period of time and

12 through acts both long and short in time from here there has

13 been a continual intermingling of church, state, and Kiryas

14 Joel such that -- such that -- persons of particular -- and the

15 Court, by the way, not the same provision in the consent decree

16 in 1997, limiting individuals to serve in particular ways not

17 because of their religious status but because of their conduct

18 and it is their conduct which is relevant and it is their

19 conduct which has violated the Constitution, not their

20 membership, not the fact that they're an orthodox or Hasidic

21 Jew. That's not the issue.

22 The Supreme Court has no evidence that McDaniel, who

23 was the plaintiff there and the petitioner in the Supreme Court

24 or anyone else had in fact used or misused their position.

25 That wasn't the issue. It was dealing with the statute and the


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18V5kir2 argument

1 statute's unconstitutional prohibition. So, I would suggest to

2 the Court that McDaniel bears no relevance here and the Court

3 should disregard that argument.

4 Now, with regard to establishment -- and I will try to

5 pronounce it correctly -- the Hsu case which I believe is cited

6 at 885 F.3d 839 and is cited by defendants; that case, your

7 Honor, sets forth, I think, the contemporary understanding of

8 the establishment clause and let me just again cite to the

9 Court some paragraphs we think it puts in perspective what we

10 are saying.

11 It said rather Lemon's purpose -- the purpose

12 requirement from Lemon aims at preventing the relevant

13 governmental decision-maker from abandoning neutrality and

14 acting with the intent of promoting the particular point of

15 view in religious matters.

16 Now, that's precisely what we are arguing has occurred

17 here. The government in Kiryas Joel through the myriad of

18 practice we have cited has in fact endorsed a particular point

19 of view in religious matters.

20 Where an individual wants to make religious

21 proclamations of a particular sort we alleged, and it has to be

22 taken as accurate for purposes of this complaint, to get an

23 escort from the public services chief Mr. Vitreal so they can

24 in fact go around the community breaking the noise ordinance

25 and he says that there are no comparators and that's not true,


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18V5kir2 argument

1 there are clear comparators. Breaking the noise ordinance goes

2 with the public safety commissioner. He does not have a permit

3 by our allegations to do what he is doing but he is allowed to

4 go do with an escort and he spreads vitreal hatred toward our

5 group. His content of speech is religious in nature and it is

6 being facilitated by the public officer that is the police

7 chief. It is not really a police department, he is head

8 constable but for all purposes the same function. Whereas when

9 our individuals indicate that they want to engage in speech,

10 public speech and try to seek the permit from the government,

11 they're denied the permit. That's alleged in the complaint.

12 You have the use of government to foster a particular

13 religious message and that's the heart of the matter and that

14 is what Hsu speaks of when it speaks of abandoning neutrality

15 and acting with the intent of promoting a particular point of

16 view in religious matters. It is a religious matter, the who

17 can marry you, it is a religious matter. What is the

18 consequence of your being married by a rabbi that we don't

19 endorse in a facility that is outside of the community that we

20 don't endorse? The consequence in Kiryas Joel is you get rocks

21 thrown at you in the street. And that is what is in the

22 complaint. Nothing less.

23 This is an academic discussion, it is an intellectual

24 discussion but it has to be infused with the reality of street

25 life there. It will be and the complaint, as pro lix as it may


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18V5kir2 argument

1 be, is pro lix because he tries to bring that to the Court.

2 Now, that issue has never been litigated anywhere.

3 All this res judicata in this case is about one single issue

4 which I will address so when you hear about res judicata it is

5 not res judicata of the whole establishment clause claim, it is

6 res judicata by a single instance that we allege with regard to

7 the synagogue. It hasn't been anywhere and there is no claim

8 that it has been in any of the pro lix papers. None.

9 Now, this is the other part of Hsu that is relevant.

10 The lawsuit is not unconstitutional simply because it allows

11 churches to advance religion which is their purpose. Again, we

12 are not arguing about that. It must be fair to say the

13 government itself has advanced religion through its own

14 activities and influence and this takes us back to the

15 community room example we started with. The example that we

16 use, because it is so central, is the government intruding in

17 the building process which it can go in New York, as you know

18 the government can say if you are a developer you have to

19 contribute something, usually done for park land under New York

20 State law. Here what they're doing is a community room but

21 they're doing it understanding -- understanding -- and

22 pressuring -- and this is in the complaint, the specific

23 developer that that community room be used for religious

24 purposes by the majority community. I don't see how government

25 can advance religion through its activities and influence,


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18V5kir2 argument

1 quoting, and this is a Supreme Court case here, Lemon, any more

2 directly and it is in the complaint and has to be taken as

3 true.

4 Again, counsel citing cases which are many of them

5 summary judgment cases, we're at a motion to dismiss stage now

6 and we have not had full disclosure by the village. One of the

7 village counsel writes it is absurd for us to complain about

8 FOIA but it is not absurd. We have a Rule 112 obligation, as

9 the Court very well knows, and part of that obligation is

10 implemented by trying to get information from this government

11 about what the government has done with similarly situated

12 properties and there are a number, probably 250 FOIA requests

13 which have been made by us, by our clients, none of them have

14 been responded to by this government. None. And there is a

15 reason for that: Transparency, transparency, transparency, and

16 they want none of it and that's why we are desperate to get on

17 with this litigation.

18 They have entirely stonewalled so that the political

19 process cannot work because, as you know, the lifeblood of

20 political process is information. And if information is

21 maintained by the government and the government does not

22 release it despite state laws requiring that release, this is

23 what we get.

24 Now, what I'm suggesting, though, is that Hsu sets the

25 proper parameters for the analysis and the complaint


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18V5kir2 argument

1 sufficiently indicates in all of the areas -- and I know there

2 is something about a contrivance going on here. We are not in

3 the complaint arguing and I want to be clear with the Court on

4 this that the taxation policy, the sanitation fee policy, we

5 are not setting those forth to get relief from them directly.

6 Our objective is to, as you know, dismantle the village because

7 inherent in the village's operation over time is a

8 discrimination manifest in those areas. We are using them as

9 examples of that discrimination because there is an inherency

10 which has been played out, as I said earlier, in all spheres of

11 social life in this village.

12 If you look at every intersection between the people

13 and the government -- and that's the same analysis that we used

14 in Yonkers, that is what is relevant -- those intersections you

15 will find the discrimination and that discrimination is pled in

16 this complaint. It is not because we are seeking you to say go

17 ahead and make for a fairer tax system, make for better

18 sanitation fees so they're equal. We want to prove to you and

19 to the jury that that discrimination has infected and tainted

20 every aspect of their intersection and that is what is in this

21 complaint and that is why it is as long as it is. And if it

22 wasn't in there, they would say you don't have enough. You are

23 not presenting evidence that there is this inherency.

24 Inherency is what goes to the heart of religion claim

25 here because if it was scattered, if it was advantageous, if it


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18V5kir2 argument

1 didn't go on over a long period of time, the inherency that is

2 required for radical relief -- and I have said to this Court

3 radical relief and understand that, I have been around this

4 block a few times -- and when we took over the Cleveland School

5 System in 1979 with Judge Batista because the district would

6 not fulfill the segregation order so when Judge Sand took over

7 Yonkers with regard to housing, these were because of inherent

8 issues. They weren't situational, they weren't passing, they

9 were demonstrated over a long period of time.

10 And while these remedies may now be out of fashion,

11 the Supreme Court's decision in Milliken still applies. The

12 nature of the violation and its scope dictates the nature of

13 the remedy. And if we are right on the facts, if there is this

14 systemic systematic discrimination across all spheres of social

15 life, there is only one remedy. The Court can't run the

16 village on a day-to-day basis.

17 Now, let me address some of the other points --

18 THE COURT: Well, all that you say is very interesting

19 but the question of remedy is not before me on this motion.

20 MR. SUSSMAN: But remedy is raised by Mr. Sokoloff's

21 papers, as I'm sure you read, where he claims that the Court

22 should now dictate that a remedy of the sort we seek is

23 impermissible. And that is also referenced in some of other

24 papers which is why I am addressing it. It hadn't been

25 addressed in oral argument.


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1 THE COURT: That's enough.

2 MR. SUSSMAN: I'm sorry. I won't speak any more about

3 it.

4 THE COURT: What I am focused on at least are the

5 issues of whether you have adequately pled your causes of

6 action.

7 MR. SUSSMAN: I understand and that's proper,

8 obviously.

9 Okay, counsel cites Grumet and he said what Grumet --

10 he says what it stands for is that religious people, like every

11 other individual, can get together and they can organize a

12 community, self-government. That's what he says but he doesn't

13 really read what Grumet says. This is what Justice Kennedy

14 says and it is very important and pertinent to this case. This

15 is at 2505, 512 U.S. 687 and then 114 Supreme Court 2481, 2505

16 and this is the language: And, again, people who share a

17 common religious belief or lifestyle may live together without

18 sacrificing the basic rights of self-governance that all

19 American citizens enjoy comma -- comma -- so long as they do

20 not use those rights to establish their religious faith.

21 That's an aversion to the government they create and

22 how that government functions vis-a-vis in similar minorities

23 in their midst. If their intention in creating their own

24 community is to discriminate against others who have a

25 different creed or who practice their own creed in a different


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1 way as your example about Catholicism pointed out, they may not

2 use government to that effect and that is what the case here is

3 about.

4 So, Grumet is relevant. It is relevant but it is not

5 relevant for the point that counsel makes and I think if the

6 Court reads that concurrence you will see that's the central

7 point.

8 Now, RLUPA was made some fun of but RLUPA is pertinent

9 here and I will explain why it is pertinent here. And I'm

10 going to cite to the Court the Coraleem case which is 664

11 F.Supp.2d 267 which is cited again by defendants.

12 Counsel says that there needs to be final action

13 which, of course, is the normal standard but as in the special

14 education area if the court reads Heldman v. Sobol -- is

15 everything okay?

16 THE COURT: What was that sound?

17 MR. SUSSMAN: Someone said something. I don't know

18 what they said.


20 MR. SUSSMAN: Thank you.

21 The determination that was reached on the motion to

22 dismiss by District Court Warren Eginton, Senior District Judge

23 sitting by designation on that case in White Plains in this

24 case out of Suffern, this is the language --

25 THE COURT: I think he pronounces it Eginton.


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1 MR. SUSSMAN: Eginton, I'm sorry.

2 Where an appeal to a zoning board would be feudal the

3 plaintiff need not appeal to the board, citing the Second

4 Circuit in Southview Associates v. Limit v. Bongards also

5 citing Murphy 402 F.3d 349 which counsel cited. A property

6 owner need not pursue such applications which a zoning agency

7 has dug in its heels and made clear that all such applications

8 will be denied.

9 Now, the arguments that we present to the Court in

10 this case as opposed to the state case with regard to Horizon

11 and with regard to the Bais Joel Rabbi son's house have not

12 been decided by the state court. Let's be, again, very clear

13 of what is happening. We are not saying we don't need cite

14 plan approval. That is not our position. Our position is we

15 have sought site plan approval and this, first of all, they had

16 no constituted board at all. Second of all, where they

17 constituted a board we made presentations to the board. As we

18 indicate months went on and we were thwarted. They have made

19 clear they will not present us with even a review process.

20 That is what we are saying.

21 Now Judge Eginton, your Honor, was faced with the same

22 kind of argument that is being made here and I'm pointing this

23 out for the Court because it is so directly on point. Here is

24 what he writes: "whether the application was inadequate and

25 properly dismissed on its merits or was adequate and was


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1 rejected in violation of RLUPA is a fact-based question better

2 suited for summary judgment. What matters at this stage is

3 whether private plaintiffs adequately pleaded that their

4 variance was denied. That they did.

5 So, my point is we have met the standard in this

6 complaint and the argument that somebody attached, I think, 18

7 or 23 exhibits for the Court's review, that's not appropriate

8 at this stage. I think Judge Eginton is correct in that and I

9 don't think the Court should deal with it. It is a

10 reality-based test from Murphy. Here is what the Court said:

11 A case is ripe when the Court can look to a final definitive

12 position from a local authority to assess precisely how they

13 can use their property. We have that. We have a final

14 definitive position from these individuals and, again, the

15 complaint says they worked together, that they overlapped in

16 their personnel, the head of the congregation is the mayor,

17 that still existed, it existed in '97 and still does. It

18 doesn't mean it the res judicata, it means it exists and it is

19 still a factor in this new set of facts and events which we

20 have right to complain about on the Waldman Second Circuit case

21 from 2000. Eleven years have passed and we have been subjected

22 to an exacerbation of conditions.

23 So, my point is, as pled -- as pled -- we have gotten

24 around res judicata. We have not focused on that, we are

25 focused on what has happened after those discussions and the


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1 irascible and recalcitrant position of the village controlled

2 by the same individuals, the congregation.

3 Now, there is some other technical points on this res

4 judicata argument which go back to your decision actually,

5 Judge.

6 THE COURT: Yes. I am aware of that but I do need to

7 bring this, somewhat, to a conclusion.

8 MR. SUSSMAN: All right. I am bringing it to a

9 conclusion.

10 THE COURT: Okay.

11 MR. SUSSMAN: I'm sorry. I'm sorry.

12 THE COURT: No. No. I had a conference call at 6:00

13 which I just moved to 6:30 and I don't want to miss it again.

14 MR. SUSSMAN: All right.

15 I will simply cite to the Court, if the Court will

16 allow me to, the Westchester Day case which, again, is a RLUPA

17 case, the case is cited 504 F.3d 338, it is a Second Circuit

18 case. I am citing to the Court page 351, specifically, and I'm

19 going to then end. If the Court has a conference call I don't

20 want to take more time.

21 THE COURT: Thank you very much.

22 MR. SOKOLOFF: Your Honor, if I may? 30 seconds.


24 MR. SOKOLOFF: Brian Sokoloff, I represent the mayor

25 and the individual trustees who are all sued in their official


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1 capacity. We made a motion to dismiss. In response, though,

2 to that motion Mr. Sussman says he is dropping the case against

3 those individuals. So, I would like to perhaps be the only

4 individual who leaves the Court today with an order saying that

5 they're out of the case.

6 MR. SUSSMAN: Except, except --

7 THE COURT: Except he said he wanted to sue them and

8 to amend to sue them.

9 MR. SUSSMAN: One.

10 MR. SOKOLOFF: There is only one individual and no

11 proposed -- no proposed complaint that I suggest has to be by

12 motion.

13 THE COURT: All right.

14 Well, I will take that under advisement.


16 THE COURT: I'm sorry to deprive you of your desire

17 for an instant order but obviously there has been a concession

18 there by the plaintiffs that will have operative effect in the

19 near future.


21 THE COURT: So, I need that -- I'm sure there are many

22 other points that both sides want to make and I regret having

23 to bring this to a close, but I think I have not been

24 disappointed in the level of argument and you are bringing to

25 me the thrust of most of your points and that is really very


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1 helpful to the Court.

2 I will stay all proceedings in this court until I

3 render a decision and I will try to get the decision out

4 promptly. I have a trial going on now so it probably won't be

5 until after that trial. That is a three-week trial but

6 hopefully it will be soon after that.

7 MR. SUSSMAN: Thank you very much, your Honor.

8 THE COURT: So, I thank all counsel very much.

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Federal Court against Village of KJ Transcript 8-31-11

Documents

Transcript of Federal Court against Village of KJ Transcript 8-31-11