Kiryas Joel Dissidents Appeal Adverse Federal District Court Ruling to Second Circuit
Kiryas Joel Dissidents Appeal Adverse Federal District Court Ruling to Second Circuit
Kiryas Joel Dissidents, led by the Waldman’s are refusing to give up in their attempt to obtain justice against the oppressive village of Kiryas Joel, despite a string of unfavorable rulings in the state and federal court system. Their attorney, Michael Sussman –a highly accomplished and successful lawyer who has been working for the KJ dissidents for many decades now– filed an appeal with the 2nd Circuit Court of Appeals of the United States after a lower district court granted a motion by the defendant to dismiss the case due to a variety of loopholes; and it seems likely that the court will agree to hear the case.
The Essential gist of the original federal complaint is that the village of KJ is so intricately entangled with the dominant religion in the village –the Aaronite Satmar faction– as to constitute a violation of both the Establishment Clause in the constitution prohibiting state support of any particular religion, and the Equal Protection Clause (14th amendement) prohibiting discrimination on the basis of religion. The plaintiffs are seeking to dissolve the village or to oust its executives, whoa re also serving on the board and operating in the interest of the dominant religious faction, Congregation Yetev Lev (CYL).
The case is extremely complex and Mr. Sussman, in the brief he filed on March 5, 2012, excoriates the judge for dismissing the suit improperly. He claims the judge misunderstood many of the original complaint elements, is misapplying the statutes and the judicial precedents and even got some of the facts wrong. Worst of all, he didn’t even give him a chance to plead the case, improperly granting the defendant’s motion to dismiss the case.
So let’s review this case chronologically and examined how things got to this point:
Background: After Joel Teitelbaum died in 1978, his successor R. Moshe installed his son Aaron as Rav of the new village of Kiryas Joel, but many in the village did not want him as Rav. Having pleaded with the Rebbe to no avail, they gradually developed their independent communal institutions in KJ such as schools, synagogues and wedding Rabbi officiants. In the meantime, the main congregation with the blessing of the grand Rebbe Moses Teitelbaum embarked on a campaign of terror to persecute and hopefully rout the dissidents from the village. The dissidents, however, had a mighty resolve and plenty of money to back them up. They hired lawyers who regularly sued the village every time an infraction of the law or impropriety was detected. The village authorities and residents came to hate them even more.
One of the key points of conflagration was the “Rebbetzin’s house” where Ala Faiga, he widow of R. Joel lived. Alta Faiga was firmly aligned with the dissidents and allowed them to use her house as a synagogue. The caveat is that her house, which was formerly the residence of R. Joel was annexed to the CYL central synagogue. This proximity of two bitter enemies made for a very explosive environment with the opposing parties scuffling periodically over access to facilities, noise, etc…
Finally in 2004, CYL decided to cut the utilities to the Rebbetzin’s house, as a form of harassment. But when the dissidents contact village authorities to request relief, they were ignored. In response, they sued in State supreme court (which is the lowest court in the New York State Unified Court System) seeking to force CYL to restore electricity connections.
In turn, CYL counter-sued that the deed for the Rebbetzin’s house was obtained fraudulently, that the dissident synagogue is convening in a residentially zoned home unlawfully, and that the dissidents are using the CYL parking lot without permission.
The Supreme court threw out the claim against the title but awarded $750,000 in damages for using the parking lot and ordered that the dissidents no longer use the synagogue until they can get it re-zoned by the village. On appeal, the parking lot damages award was rescinded but the need to seek zoning permission from the village reaffirmed.
But when the dissidents sought to submit an application for site plan approval, they discovered that the village did not have an existing zoning appeal board. The village only established a zoning appeal board after the dissidents had sued in state court once more and had gotten the court to direct the village to do so. The court, however, refused to issue a declaration that the dissidents were in compliance with village zoning rules based on the use of the site for religious worship before it changed title (from Alta Faiga to the dissidents), a request the plaintiffs had made in the second suit, “Kiryas Joel II”.
Yet, even with the zoning appeal board in place the village still dilly-dallied, and review or approval of the site for religious worship was not forthcoming. And this is where things started to escalate. The dissidents and their highly competent lawyer Mr. Sussman realized that the state is not an ideal venue in which to have their case heard. State court judges are elected, or –in the case of judges on the highest bench, the court of appeals– appointed by the governor. This naturally makes them beholden to the political process and answerable to the electorate. With politicians and justices reluctant to rule against a village which reliably delivers them valuable votes for office, the dissidents became frustrated with the state judicial process, and strategically shifted away from the state and into federal court to sue on constitutional grounds.
In January 2008, they filed suit in one of the federal district courts for the state of New York. The suit alleged the following violations:
1) Violation of equal protection clause.
a. Tax exemptions were granted to CYL synagogues and Rabbis but not to to Congregation Bene Yoel (CBY) of the dissidents, constituting discrimination on the basis of religion.
b. The village did not charge CYL for sanitation services but it did charge CBY.
c. CYL was allowed by the village do unlawfully blast music after hours (perhaps on sukkoth?) and on another occasion the mayor himself, Abraham Weider, accompanied a loudspeaker truck registered to CYL making public announcements against the village ordinance. But when the dissidents were caught doing something similar they were cited.
d. Dissidents were assaulted on the street by UTA (United Talmudical Academy; aka Satmar) students but the village public safety officers did not come to their rescue (allegedly on the basis of them holding a different “religion”).
e. leaflets aganist the dissidents were distributed on the streets and the village then purposefully did not clean up afterwards. When a dissident littered some more to force the vilage to clean up, he was cited for a violation.
f. The village refused to grant zoning permission for conducting public worship in the Rebbetzin’s house, while 40-50 shtieblekh belonging to the main congregation were operational throughout the village in residentially-zoned houses.
2) Violation of establishment clause.
The village has a law on the book called “community room law” (CRL) which requires multi-unit real estate developments to put aside space for a community room. If the developer cannot comply with this requirement, then they must pay a fine which the village allocates for the building of such community rooms in other sructures. In virtually every case, those “community rooms” function as synagogues. In the case of a development undertaken by a dissident member, the village initially claimed that the room did not meet specifications and thus required him to pay the fine. This fine would have ultimately been channeled into the synagogue construction fund which masquerades as the “community room” fund, thus constituting village promotion of CYL synagogues.
3) Violation of RELUIPA, a federal statute that requires governements to make a strenuous effort to allow the dedication of a public house of worship in an otherwise incompatible zoning area. According to the law, if denying the request for public worship zoning would pose a “substantial burden” to the worshipers, then the government must accomodate them. According to the complaint, even though there are other dissident synagogues in the village, the Rebbetzin’s house carries special religious significance since R. Joel used to pray there and it therefore meets the “substantial burden” threshold.
Justice Rakoff dismissed most of the charges made in the complaint; he never even allowed it to come to trial. This has infuriated the plaintiffs and Mr. Sussman minces no words in his disdain and ascription of incompetence to his honor. Rakoff’s argument for dismissal are as follows:
1) res judaica (a latin term which means “already judged”) prevents a case that is substantially the same as a previous case to be litigated again against the same party based on the same action, even if a new infraction is being alleged. Accordingly, Rakoff argues, the plaintiffs should have brought up the constitutional issues when they first filed charges in state court. They cannot decide later, after the state court is unsympathetic that there is an additional violation they’d like the court to consider. Sakoff thus dismissed all the alleged violations pertaining to the Rebbetzin House component of the suit.
rebuttal: the original suit brought in state court was against CYL, NOT the village. The federal, on the other hand, is being brought against the village. This is a dubious rebuttal, however, since the second supreme court suit, known as “Kiryas Joel II” did involve the village, wherein plaintiff asked the court to interpret the village ordinance regarding zoning differently from the way it was being interpreted and applied by the village (which the state court ultimately declined to do).
2) standing. Sakoff made a very bold statement in asserting that the dissident organization that is listed as a party to the plaintiff, Kiryas Joel Alliance (KJA), does not have “standing” to sue on behalf of its members. Since some of the constitutional violations pertaining to the equal protection clause were allegedly committed against individuals that were not listed as plaintiffs in the suit, the court refused to entertain those grievances.
Regarding the establishment clause, the court recognized that the Community Room Law may be unconstitutional and thus entitle the real estate developer who paid the relevant fees for violating the ordinance, redress. However, the developer must sue directly. Any other person who did not suffer any monetary damages resuting from the alleged support of an established religion by the village, does not have standing to sue. The plaintiffs could have revised their suit to list the appropriate real estate parties and the court would have heard the case, but since Sakoff insisted on throwing out every other part of the suit, the plaintiffs asked for the case to be closed so that they can pursue it in the federal system.
3) By far the most controversial of Sakoff’s pronouncements is that the whole equal protection clause does not apply here. Sakoff rules that “differences in the Hasidic community are largely centered on a political controversy over wh should be the leads of the Satmar Hasidim.”
In other words, when the dissidents insist that they want to pray in their own synagogues it isn’t that there is any dogmatic or religious divergence of opinion from the main congregation. It’s simply that they don’t like the leadership of the main congregation; they hate Aaron and his cronies.
While no previous court in the last three decades and dozens of lawsuits in KJ has seriously tinkered with this theory, it does seem quite plausbile, especially for Hasidic insiders who are well aware that 1) there are indeed no doctrinal disparities between the Bene Yoel and CYL and 2) the bene yoel are not blind followers of ANYONE in the name of faith. Thus, Sussman’s claim that the Bene Yoel will not pray in the main synagogue as a matter of faith –the belief that they must follow a holy and righteous leader but they must not follow an unworthy leader such as Aaron– isn’t quite accurate.