Village Officials Motion for Dissmisal

8/6/2019 Village Officials Motion for Dissmisal

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK

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KIRYAS JOEL ALLIANCE, CONGREGATION BAIS YOELOHEL FEIGE, ZALMAN WALDMAN, MEYER DEUTSCH,

BERNARD TYRNAUER, ISAAC SRUGO, JOSEPHWALDMAN, MOSHE TENNENBAUM, DAVID WOLNERand JOEL WALDMAN,

Plaintiffs,

-against-

VILLAGE OF KIRYAS JOEL, JACOB REISMAN, VillageTrustee, sued in his official capacity, MOSES GOLDSTEIN,

Village Trustee, sued in his official capacity, JACOB FREUND,

Village Trustee, sued in his official capacity, SAMUELLANDAU, Village Trustee, sued in his official capacity,

ABRAHAM WEIDER, Mayor of the Village of Kiryas Joel, sued

in his official capacity, MOSES WITRIOL, Director, Village of

Kiryas Joel Department of Public Safety, sued in his individualand official capacities, CONGREGATION YETEV LEV

DSATMAR OF KIRYAS JOEK, DAVID EKSTEIN, TOWN

OF MONROE, and CESAR A. PERALES, sued in his officialcapacity as acting New York State Secretary of State,

Defendants.

Docket No.11 Civ. 3982 (JSR)

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MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS

JACOB REISMAN,MOSES GOLDSTEIN,JACOB FREUND,SAMUEL LANDAU,

AND ABRAHAM WEIDERS MOTION TO DISMISS AND STRIKE

SOKOLOFF STERN LLP

Attorneys for Defendants

JACOB REISMAN, MOSESGOLDSTEIN, JACOB FREUND,

SAMUEL LANDAU, and

ABRAHAM WEIDER

355 Post Avenue, Suite 201Westbury, New York 11590

(516) 334-4500

Of Counsel:Brian S. Sokoloff

Leo Dorfman

Case 1:11-cv-03982-JSR Document 30 Filed 08/01/11 Page 1 of 27


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TABLE OF CONTENTS

TABLE OF AUTHORITIES.................................................................................................................. iii

PRELIMINARY

STATEMENT

.............................................................................................................. 1

STATEMENT OF FACTS ..................................................................................................................... 3

ARGUMENT ...................................................................................................................................... 6

POINT I .......................................................................................................................................... 6

PLAINTIFFSCLAIMS AGAINST THE INDIVIDUALS ARE DUPLICATIVE OF THEIR CLAIMSAGAINST THE VILLAGE ITSELF

POINT II ........................................................................................................................................ 6

THE COURT SHOULD STRIKE CLAIMS FOR RELIEF ASSERTED AGAINST MOVANTS

A. INJUNCTIVE RELIEF IS NOT AVAILABLE AGAINST THE INDIVIDUALDEFENDANTS AS INDIVIDUALS BECAUSE THEY ARE SUED ONLY IN THEIROFFICIAL CAPACITIES................................................................................................ 6

B. ANY INJUNCTION BARRING DEFENDANTS OR CONGREGATION MEMBERSFROM HOLDING ELECTIVE OR APPOINTIVE PUBLIC OFFICE WOULD VIOLATE

THE FIRST AMENDMENT ............................................................................................ 8

1. Plaintiffs Proposed Injunction Would Force CYL-KJ Congregation

Members to Choose Between Religion and Government Office......................... 8

2. Plaintiffs Proposed Injunction Barring Individual Defendants from

Elected Office Creates an Unconstitutional Religious Test for Office .............. 10

C. PLAINTIFFSPROPOSED INJUNCTION SINGLES OUT CYL-KJMEMBERS AS ACLASS FOR ADVERSE TREATMENT ON THE BASIS OF RELIGIOUS AFFILIATION

IN VIOLATION OF THE FOURTEENTH AMENDMENT .................................................. 11

D. PLAINTIFFS LACK STANDING TO SEEK INJUNCTIVE RELIEF THAT IS NOT GEAREDTOWARDS AN EXISTING OR PRESENTLY THREATENED INJURY................................ 13

E. THE PROPOSED INJUNCTIONS ARE DISPROPORTIONATE TO THE ALLEGEDVIOLATIONS,IMPERMISSIBLY PUNITIVE RATHER THAN REMEDIAL INNATURE, AND ENTIRELY FAIL TO RESPECT THE ROLE OF STATE AND LOCALAUTHORITIES .......................................................................................................... 15



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POINT III ........................................................................................................................................ 21

DEFENDANTS REISMAN,GOLDSTEIN,FREUND,LANDAU, AND WIEDER HEREBY

INCORPORATE

CO

-DEFENDANTS

ARGUMENTS BY THE

OTHER

MOVANTS

CONCLUSION.................................................................................................................................. 21



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TABLE OF AUTHORITIES

CasesAssociation for the Preservation of Freedom of Choice, Inc. v. Dudley,

29 Misc.2d 710, 222 N.Y.S.2d 631 (Sup. Ct. NY Co. 1961) ................................................... 19

Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet,

512 U.S. 687 (1994) ........................................................................................................ 8, 11, 16

City of Los Angeles v. Lyons,

461 U.S. 95 (1983) .................................................................................................................... 14

City of New Orleans v. Dukes,

427 U.S. 297 (1976) .................................................................................................................. 12

Connecticut v. Massachusetts,

282 U.S. 600 (1931) .................................................................................................................. 13

Frank v. Relin,1 F.3d 1317 (2d Cir. 1993).......................................................................................................... 7

Gen. Fireproofing Co. v. Wyman,444 F.2d 391 (2d Cir. 1971)...................................................................................................... 13

Giano v. Senkowski,

54 F.3d 1050 (2d Cir. 1995)...................................................................................................... 12

Good News Club v. Milford Cent. Sch.,

533 U.S. 98 (2001) ...................................................................................................................... 8

Hafer v. Melo,

502 U.S. 21 (1991) ...................................................................................................................... 7

Hartford-Empire Co. v. United States,

323 U.S. 386 supplemented, 324 U.S. 570, (1945) .................................................................... 7

Hecht Co. v. Bowles,321 U.S. 321 (1944) .................................................................................................................. 16

In re Carp,179 A.D. 387 (4th Dept 1917) .................................................................................................. 19

Incantalupo v. Lawrence Union Free Sch. Dist. No. 15,

652 F. Supp. 2d 314 (E.D.N.Y. 2009) affd, 380 F. Appx. 59 (2d Cir. 2010) ........................ 12

Jewell v. Mohr,

136 N.Y.S. 273 (Sup. Ct. Erie Co. 1912).................................................................................. 19



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Kentucky v. Graham,473 U.S. 159 (1985) ................................................................................................................ 6, 7

Matter of Gardner,

68 N.Y. 467 (1877) ................................................................................................................... 19

McDaniel v. Paty,

435 U.S. 618, 98 S. Ct. 1322, 55 L. Ed. 2d 593 (1978) ......................................................... 8, 9

Milliken v. Bradley,

418 U.S. 717 (1974) .................................................................................................................. 17

Milliken v. Bradley,

433 U.S. 267 (1977) ............................................................................................................ 15, 17

Missouri v. Jenkins,495 U.S. 33 (1990) .............................................................................................................. 17, 18

Monell v. Dept of Soc. Servs.,436 U.S. 658 (1978) .................................................................................................................... 6

OShea v. Littleton,

414 U.S. 488 (1974) .................................................................................................................. 14

Quinn v. Nassau County Police Dept,

53 F. Supp. 2d 347 (E.D.N.Y. 1999) ........................................................................................ 12

Shannon v. Jacobowitz,

394 F.3d 90 (2d Cir. 2005)........................................................................................................ 13

Torcaso v. Watkins,

367 U.S. 488 (1961) ............................................................................................................ 10, 11

Tsotesi v. Bd. of Educ.,258 F. Supp. 2d 336 (S.D.N.Y. 2003)......................................................................................... 6

United States v. Nelson,

CR-94-823 DGT, 2010 WL 2629742 (E.D.N.Y. June 28, 2010) ............................................ 10

Valenti v. Massapequa Union Free Sch. Dist.,

09-CV-977, 2010 WL 475203 (E.D.N.Y. Feb. 5, 2010) ............................................................ 6

StatutesExecutive Law 63-b ................................................................................................................... 18



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OtherAuthorities11 C. Wright & A. Miller, Federal Practice & Procedure 2942 (1973 ...................................... 13

U.S. Const. Art. VI........................................................................................................................ 10



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PRELIMINARY STATEMENT

Plaintiffs are Satmar Hassidic Jews and residents of the Village of Kiryas Joel who style

themselves dissidents because they are not members of Congregation Yetev Lev of Kiryas Joel

(CYL-KJ), a Satmar Hasidic congregation that counts a majority of Village residents among its

members. Disgruntled by the fact that current members of the leadership enjoy more popular

support and have had more success at the ballot box, plaintiffs bring this fundamentally

undemocratic action, seeking to accomplish by judicial fiat what they cannot at the voting booth

to have this Court, inter alia, (1) permanently oust democratically elected Village Trustees

Jacob Reisman, Moses Goldstein, Jacob Freund, and Samuel Landau, and Village Mayor

Abraham Wieder from public office; and (2) bar leaders of CYL-KJ from serving in public office

in the Village. Plaintiffs claim that they are entitled to this patently anti-democratic (and

religiously discriminatory) relief because the Village engaged in a course of conduct that

discriminates against plaintiffs and other non-members of CYL-KJ.

Plaintiffs do not allege that Messrs. Reisman, Goldstein, Freund, Landau, and Wieder

have, themselves, engaged in any misconduct. Instead, plaintiffs seek to disqualify them from

public office based solely on the membership of those individuals in a religious congregation.

First and foremost, since Messrs. Reisman, Goldstein, Freund, Landau, and Wieder are

sued only in their official capacities, the claims against them are duplicative of plaintiffs claims

against the Village, and the Court should dismiss them outright. For this same reason, injunctive

relief is not available against these defendants as individuals.

Regardless of whether the names of these individuals stay in the caption, the Court

should strike plaintiffs claims for injunctive relief that seek to bar these defendants and others

from public office on account of their membership in CYL-KJ. These claims violate Article VI



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and the First Amendment of the United States Constitution as they seek to impose a religious test

for public office and an impermissible burden on defendants religious beliefs and practices.

Further, plaintiffs proposed injunction would have this Court enshrine in a judgment the

kind of discriminatory treatment of CYL-KJ leaders that the Fourteenth Amendment prohibits.

What is more, plaintiffs lack standing for a prospective injunction against defendants and

other members of CYL-KJ; since plaintiffs have suffered no constitutional violations as a result

of the individual defendants actions and can show no likelihood of suffering such harm in the

future, they cannot set forth a live case or controversy justifying an injunction.

Even if plaintiffs could show standing, the injunctions they seek are wildly

disproportionate to any alleged violations, are impermissibly punitive, and entirely fail to respect

the role of state and local authorities in managing local affairs.

For these reasons, defendants respectfully request that the Court dismiss all claims

against them and strike from the complaint those prayers for relief that seek to bar defendants

and others from seeking election or appointment to public office in the Village.



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STATEMENT OF FACTS1

The Village of Kiryas Joel was incorporated in 1977 and has since existed as an enclave

for followers of the Satmar Hasidic sect of Judaism. First Amended Complaint (FAC), 40-

41. Many of Kiryas Joel residents are members of Congregational Yetev-Lev DSatmar (CYL-

KJ), led by Grand Rebbe Aron Teitelbaum. Id., 44, 45. Some residents, though also Satmar

Hassidic Jews, do not approve of Rabbi Arons role as Grand Rebbe and/or his leadership over

CYL-KJ and the KJ Satmar community. Id. 48-50. According to the Amended Complaint,

some 40 percent of the Villages population shares this view about CYL-KJs leadership. Id.

48. Some of these residents belong to the Congregation Bais Yoel Ohel Feige, a plaintiff in this

case. Id. 12. Plaintiffs Zalman Waldman, Meyer Deutsch, Bernard Tyrnauer, Isaac Srugo,

Joseph Waldman, Moshe Tennenbaum, Davis Wolner, and Joel Waldman count themselves

among this 40 percent. Id. 13-20. In a resort to Cold War rhetoric, plaintiffs dub themselves

dissidents.

Plaintiff Kiryas Joel Alliance (KJ Alliance) is a nonprofit, unincorporated association,

whose primary mission is the promotion of social welfare by advocating for the rights of the

citizens of Kiryas Joel. Id. 3.

Plaintiffs bring this action claiming, broadly, that the Village of Kiryas Joel is

unconstitutionally entangled with CYL-KJ. They claim that, as a result of the entanglement, and

even though almost all of the residents of the Village are Satmar Hassidic Jews, the Village

discriminates against non-members of CYL-KJ on the basis of religion in violation of the First

and Fourteenth Amendments of the United States Constitution and the Religious Land Use and

Institutionalized Persons Act (RLUIPA). Plaintiffs do not explain how this alleged

1 The Court should assume the facts set forth in the complaint only for purposes of this motion.



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discrimination is on the basis of religion when virtually all residents of Kiryas Joel (and all

plaintiffs herein), whether members or non-members of CYL-KJ, practice the same Satmar

Hassidic form of Judaism.

Nevertheless, plaintiffs claim that non-members of CYL-KJ have experienced

discrimination through, inter alia: disparate treatment in property taxation and municipal fees;

selective enforcement of Village noise, public order, zoning, litter, and public speech ordinances;

irregularities in Village elections; and failure to prevent harassment by private persons. See id.

3.

Among the defendants, plaintiff names Village Trustees Jacob Reisman, Moses

Goldstein, Jacob Freund, and Samuel Landau, as well as Village Mayor Abraham Wieder, who

also allegedly holds a high-ranking position in CYL-KJ. Id. 22-26. Plaintiffs sue these

defendants only in their official capacities. Id. 22-25. Plaintiffs complaint, however, does

not explain why they have sued these defendants at all.

In fact, plaintiffs do not make any specific allegations of misconduct committed by

defendant Trustees Reisman, Goldstein, Freund, or Landau. With respect to Mayor Wieder

plaintiff claims only that: (1) Wieder holds a position of leadership position in the CYL-KJ, id.

27; (2) Wieder, along with other CYL-KJ officials, has ordered CYL-KJ members to repudiate

certain weddings and excommunicate the married couples, id. 53; and (3) Wieder became

angry when KJ building inspector Lawrence Rossini ordered the power shut off to a religious

school building because of a fire. Id., 388. Plaintiffs do not explain how any of these three

items (in a complaint containing 426 paragraphs) have affected them personally.

On the basis of these few factual claims, plaintiffs ask that this Court to order a

permanent injunction, inter alia:



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Enjoining any officer, director, or high-ranking official of CYL-KJ, or of anysuccessor or assignee thereof, from (1) holding any Village government office,

including but not limited to the offices of Mayor and Trustee, for a period of

twenty-five years; and (2) from sitting on the Board of Education of the Village of

Kiryas Joel Union Free School District for a period of twenty-five years; See id.

p. 58.

Ordering Defendant Abraham Wieder to relinquish his current office of Mayor ofthe Village of Kiryas Joel and enjoining him from holding any Village office

indefinitely; and

Ordering Defendants Jacob Reisman, Moses Goldstein, Jacob Freund, and SamuelLandau to relinquish their current offices of Village of Kiryas Joel Trustee and

enjoining them from holding any Village office indefinitely.



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ARGUMENTPOINT I

PLAINTIFFSCLAIMS AGAINST THE INDIVIDUALS AREDUPLICATIVE OF THEIR CLAIMS AGAINST THE VILLAGE ITSELF

The 42 U.S.C. 1983 claims that plaintiffs assert against defendants Wieder,

Reisman, Goldstein, Freund and Landau in their official capacities duplicate the municipal

liability claims that they lodge against the Village under Monell v. Dept of Soc. Servs., 436 U.S.

658 (1978). This is because 1983 actions against officials in their official capacities generally

represent only another way of pleading an action against an entity of which an officer is an

agent. Kentucky v. Graham, 473 U.S. 159, 165 (1985); seealso Valenti v. Massapequa Union

Free Sch. Dist., 09-CV-977, 2010 WL 475203, n.2 (E.D.N.Y. Feb. 5, 2010); Tsotesi v. Bd. of

Educ., 258 F. Supp. 2d 336, 338 n.10 (S.D.N.Y. 2003) (dismissing claims against officials sued

in their official capacities where plaintiff also sued municipality) (citing Graham, 473 U.S. at

165-66). As in Tsotesi, this Court should dismiss as redundant 42 U.S.C. 1983 claims against

the individual defendants in their official capacities.

POINT II

THE COURT SHOULD STRIKE CLAIMS FOR RELIEF ASSERTED AGAINST MOVANTS

A.

Injunctive Relief is Not Available Against the Individual Defendants as IndividualsBecause They Are Sued Only in Their Official Capacities

For the same reason that plaintiffs claims against the individual defendants are

duplicative of their claims against the Village, the injunctive relief that plaintiffs seek is not



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available against the individual defendants. [T]he real party in interest in an official-capacity

suit is the governmental entity and not the named official.... Frank v. Relin, 1 F.3d 1317, 1326

(2d Cir. 1993), citing Hafer v. Melo, 502 U.S. 21, 23 (1991). Thus, an official-capacity suit is,

in all respects other than name, to be treated as a suit against the entity. Id. See also Kentucky

v. Graham, 473 U.S. 159, 166 (1985).2

In Hartford-Empire Co. v. United States, 323 U.S. 386, 434 supplemented, 324 U.S. 570,

(1945), an antitrust action against a corporate defendant and several of its officers and directors,

the Supreme Court overturned a lower courts injunction against various individual defendants.

According to the Supreme Court, defendants illegal conduct was undertaken only in their

corporate capacity and the challenged injunction over-broadly covered the individuals. The

Court said that the injunction would have been sufficient if it covered the corporation and its

officers and directors. The Court added, That these individuals may have rendered themselves

liable to prosecution by virtue of the provisions of 14 of the Clayton Act is beside the point,

since relief in equity is remedial, not penal.

Here, since plaintiffs have not sued the individual defendants as persons, the Court

cannot enjoin them as persons from holding office or running for office in future elections. As

in Hartford-Empire, it would be error to grant any injunction that specifically bound defendants

Wieder, Reisman, Goldstein, Freund, and Landau as individuals.

2The same is true of an action asserting a claim for damages. State officers sued for damages in

their official capacity are not persons for purposes of the suit because they assume the identityof the government that employs them. Hafer v. Melo, 502 U.S. 21, 27 (1991).



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B. Any Injunction Barring Defendants or Congregation Members From HoldingElective or Appointive Public Office Would Violate the First Amendment

1. Plaintiffs Proposed Injunction Would Force CYL-KJ CongregationMembers to Choose Between Religion and Government Office

Plaintiffs seek to enjoin any officer, director, or high-ranking official of CYL-KJ from

(1) holding any Village government office, including but not limited to the offices of Mayor and

Trustee, for a period of twenty five years; and (2) from sitting on the Board of Education of the

Village of Kiryas Joel Union Free School District for a period of twenty-five years. FAC, p. 58.

This relief violates the First Amendment because it would force any potential candidate for

public office, elective or appointive, who is also a member of CYL-KJ to choose between

participating in the congregation and holding public office.

The Supreme Court has held that it is unconstitutional to condition the exercise of one

right on the surrender of another. McDaniel v. Paty, 435 U.S. 618, 626, 98 S. Ct. 1322, 1327, 55

L. Ed. 2d 593 (1978). [R]eligious people (or groups of religious people) cannot be denied the

opportunity to exercise the rights of citizens simply because of their religious affiliations or

commitments, for such a disability would violate the right to religious free exercise, which the

First Amendment guarantees as certainly as it bars any establishment. Bd. of Educ. of Kiryas

Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 698 (1994) (citing McDaniel v. Paty, 435 U.S.

618). Under the Constitution, A priest has as much liberty to proselytize as a patriot. Good

News Club v. Milford Cent. Sch., 533 U.S. 98, 121 (2001) (Scalia, J., concurring).

In McDaniel v. Paty, the Supreme Court overturned a Tennessee law that prevented

clergy members from holding certain political offices, reasoning that [T]o condition the

availability of benefits [including access to the ballot] upon this appellants willingness to violate

a cardinal principle of [his] religious faith [by surrendering his religiously impelled ministry]



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effectively penalizes the free exercise of [his] constitutional liberties. Id. at 626. In rejecting

the argument that allowing ministers to hold public office would result in the establishment of

religion, the Court noted that, The American experience provides no persuasive support for the

fear that clergymen in public office will be less careful of anti-establishment interests or less

faithful to their oaths of civil office than their counterparts. Id. at 629.

Plaintiffs seek to have this Court penalize the exercise of First Amendment rights of

CYL-KJ members by forcing them into a choice between leadership of the congregation and

leadership of the Village. According to plaintiffs, this Court should destroy the ability of CYL-

KJ members to (a) seek election or (b) receive appointment to public office in the Village. Such

a penalty on religion is repugnant to the Constitution, and this Court should strike this proposed

penalty from the complaint. To the extent that plaintiffs are unhappy with the performance of

their elected officials, their remedy, as ever, is found in the ballot box:

The antidote which the Constitution provides

against zealots who would inject sectarianism intothe political process is to subject their ideas to

refutation in the marketplace of ideas and their

platforms to rejection at the polls. With thesesafeguards, it is unlikely that they will succeed in

inducing government to act along religiously

divisive lines, and, with judicial enforcement of theEstablishment Clause, any measure of success they

achieve must be short-lived at best.

McDaniel, 435 U.S. at 642 (Brennan, J., concurring).



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2. Plaintiffs Proposed Injunction Barring Individual Defendants from ElectedOffice Creates an Unconstitutional Religious Test for Office

Plaintiffs also ask this Court to establish and enforce a religious test for public office

whereby defendants Reisman, Goldstein, Freund, Landau, and Wieder3

would be banned

indefinitely from campaigning for and holding public office in the Village of Kiryas Joel, based

on nothing more than their religious association with CYL-KJ. The Constitution flatly prohibits

this Court from ordering such relief, and it should be stricken from the complaint.

Article VI of the U.S. Constitution provides that no religious Test shall ever be required

as a Qualification to any Office or public Trust under the United States. U.S. Const. Art. VI, cl.

3. The First Amendments establishment clause similarly prohibits religious tests for public

office. Torcaso v. Watkins, 367 U.S. 488, 491-92 (1961).

In Torcaso, the Supreme Court struck down as unconstitutional a Maryland law requiring

all holders of public office to declare a belief in the existence of God. Id. The Supreme Court

reasoned, The establishment of religion clause of the First Amendment means at least no

person can be punished for entertaining or professing religious beliefs or disbeliefs, for church

attendance or non-attendance. (Emphasis added) Id. When Maryland conditioned public

office on a belief in the existence of God, The power and authority of the State of Maryland

thus [was] put on the side of one particular sort of believers -- those who are willing to say they

believe in the existence of God. Id. at 490. The Maryland religious test, thus,

unconstitutionally invaded the appellants freedom of belief and religion and therefore cannot

be enforced against him. Id. See also United States v. Nelson, CR-94-823 DGT, 2010 WL

2629742 (E.D.N.Y. June 28, 2010) (when a judge is asked to recuse himself from a case

3Plaintiffs also ask that the Court enjoin non-party Gedalye Szegedin from holding public office

in the Village.



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because of his religion, the challenge implicates the [no religious test] declaration in Art. VI,

cl. 3) (citing Torcaso, 367 U.S. 488).

Indeed, in Bd. of Educ. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 699

(1994), the Supreme Court could not have spoken more directly to the issue presented by

plaintiffs proposed disqualification of the individual defendants here from elective and

appointive office in the Village. In Grumet, the Court specifically made clear that, even if a

Satmar Hasidic school district runs afoul of the Constitution by delegating too much authority to

a religious organization, the Grand Rebbe may run for, and serve on, his local school board.

Plaintiffs ask precisely what Article VI and the First Amendment prohibit: to have this

Court remove and bar Reisman, Goldstein, Freund, Landau, and Wieder from elected public

office and disqualify them in the future not because of any particular wrongdoing plaintiffs

have alleged none but for their membership in a religious congregation. To grant plaintiffs

requested relief, the Court would have to side with plaintiff non-members of CYL-KJ, and to

place the power and authority of the judicial branch of the United States government behind

plaintiffs and against the CYL-KJ. The Court should refuse this unconstitutional position.

C. Plaintiffs Proposed Injunction Singles Out CYL-KJ Members as a Class forAdverse Treatment on the Basis of Religious Affiliation in Violation of the

Fourteenth Amendment

Plaintiffs ask this Court intentionally to single out CYL-KJ from among the multiple

congregations in the Village of Kiryas Joel, and to treat its members with disfavor by barring

them from public office and full participation in the civic affairs of the Village. That remedy is

offensive to the Fourteenth Amendment.

The Equal Protection Clause of the Fourteenth Amendment is violated when state actors

treat similarly situated individuals differently without a legally acceptable reason. That is



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because the government must treat similarly situated people alike. Quinn v. Nassau County

Police Dept, 53 F. Supp. 2d 347, 355 (E.D.N.Y. 1999).

When, as plaintiffs request here, the government (in this case this Court) engages in

purposeful discrimination of an identifiable or suspect class, the Equal Protection Clause is

transgressed. Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995). See also City of New

Orleans v. Dukes, 427 U.S. 297, 303 (1976) (giving examples of suspect distinctions as race,

religion, or alienage). Plaintiffs ask this Court to treat members of CYL-KJ, a religious

congregation, as a discrete class, and then bar them -- and only them -- from running in Village

elections and accepting appointment to Village office.

This Court may not grant relief that is, in itself, an equal protection violation. See

Incantalupo v. Lawrence Union Free Sch. Dist. No. 15, 652 F. Supp. 2d 314 (E.D.N.Y.

2009) affd, 380 F. Appx. 59 (2d Cir. 2010) (Denying plaintiffs requested remedy as an equal

protection violation were it would have the Court enjoin the [a school consolidation plan]

simply because most of its proponents are Orthodox Jews or some of the resulting tax reductions

may help Lawrence residents finance yeshiva education.)

Further, by asking this Court to bar from public office only current and future leaders of

CYL-KJ, but not members or leaders of any other congregation in the Village, plaintiffs lay bare

their true intentions: to have this Court rig and manipulate local elections in plaintiffs favor. If

plaintiffs were honestly concerned that election of leaders or board members of a religious

organization to public office created a constitutional problem, they would seek to bar all local

leaders or board members of all religious organizations from office, not just the leaders of the

congregation they dislike. Plaintiffs claim in this regard is, thus, a transparent and calculated



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effort to have this Court tip the political scales in their favor.4

The Court need not entertain this

undemocratic strategy, especially not at the expense of equal protection.

D. Plaintiffs Lack Standing to Seek Injunctive Relief That is Not Geared Towards anExisting or Presently Threatened InjuryPlaintiffs lack standing to seek a prospective injunction that would bar the individual

defendants from holding future public office because plaintiffs have not shown, and cannot

show, that they will suffer any injury if Wieder and/or Reisman and/or Goldstein and/or Freund

and/or Landau hold office now or in the future. In addition, because their proposed electoral

disqualification sweeps so broadly, they cannot show that they are likely to suffer some future

harm if as-yet-unknown future leaders of CYL-KJ hold public office.

Injunction issues to prevent existing or presently threatened injuries. One will not be

granted against something merely feared as liable to occur at some indefinite time in the future.

Connecticut v. Massachusetts, 282 U.S. 600 (1931). [M]ore than an abstract or nebulous plan

to possibly commit a wrong sometime in the future must be shown before the broad and

potentially drastic injunctive power of the court will be exercised. Gen. Fireproofing Co. v.

Wyman, 444 F.2d 391, 393 (2d Cir. 1971). There must be more than a mere possibility or fear

that the injury will occur. Id., citing 11 C. Wright & A. Miller, Federal Practice & Procedure

2942 (1973), at p. 369.

Indeed, plaintiffs, who cannot show more than a mere possibility or fear of future injury,

cannot set forth an active case and controversy. They lack standing to seek injunctive relief.

4 Principles of federalism limit the power of federal courts to intervene in state elections ....

Only in extraordinary circumstances will a challenge to a state ... election rise to the level of aconstitutional deprivation. Shannon v. Jacobowitz, 394 F.3d 90, 94 (2d Cir. 2005).



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City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983) is instructive. In Lyons, plaintiff

brought suit alleging that he had been choked by a Los Angeles police officer and seeking an

injunction barring police officers from using the same choke hold in the future. The Supreme

Court held that plaintiff lacked standing to maintain the claim for injunctive relief, stating:

In order to establish an actual controversy in this

case, Lyons would have had not only to allege that

he would have another encounter with the police butalso to make the incredible assertion either, (1) thatall police officers in Los Angeles always choke any

citizen with whom they happen to have anencounter, whether for the purpose of arrest, issuing

a citation or for questioning or, (2) that the City

ordered or authorized police officers to act in suchmanner.

Lyons, 461 U.S. 95, 105-06 (emphasis in original).

Similarly, in OShea v. Littleton, 414 U.S. 488 (1974), the Court dealt with a case

brought by a class of plaintiffs claiming that they had been subjected to discriminatory

enforcement of the criminal law. The Court found that plaintiffs lacked standing to seek

injunctive relief because [p]ast exposure to illegal conduct does not in itself show a present case

or controversy regarding injunctive relief ... if unaccompanied by any continuing, present

adverse effects. Id., at 495-496Plaintiffs here have no more standing to apply for the injunctive relief they seek

removal and disqualification from public office of five named individuals and an indeterminate

class of other people -- than did plaintiffs in OShea and Lyons. To gain that standing, plaintiffs,

at the least, would have to show something they do not demonstrate in their complaint: (a) the

very holding of office by these individuals ipso facto violates plaintiffs constitutional rights, or

(b) once in office, these individuals will definitely act to violate plaintiffs civil rights. Plaintiffs

have not made, and cannot make, this showing.



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Plaintiffs cannot establish that their rights will be violated by the mere election of public

office of CYL-KJ leaders. The Supreme Court disposed of that notion in McDaniel v. Paty, 435

U.S. 618 and Grumet, 512 U.S. at 699.

Further, since plaintiffs do not even know which residents might someday become CYL-

KJ officials, they cannot know who, when, why, or how such officials might someday violate

their rights. Even if plaintiffs could expect that some or all of the incumbent defendants will be

reelected into office, they could not possibly predict that such defendants would act to violate

their rights. Notably, plaintiffs complaint does not set forth any instance in which Wieder,

Reisman, Goldstein, Freund or Landaus conduct has caused them some injury. Unable to show

any likelihood that either the individual defendants or current and future leaders of CYL-KJ will

take any action that might cause plaintiffs injury, they lack standing to seek injunctive relief.

E. The Proposed Injunctions Are Disproportionate to the Alleged Violations,Impermissibly Punitive Rather Than Remedial in Nature, and Entirely Fail to

Respect the Role of State and Local Authorities

In addition to being unconstitutional, unprecedented, and otherwise unavailable, the

extreme injunctions plaintiffs seek are improperly punitive and wildly disproportionate to the

allegations of the complaint.

In Milliken v. Bradley, 433 U.S. 267, 280-281 (1977) (Milliken II), the Supreme Court

noted that a federal court exercising its equitable power must focus on three factors: (1) the

remedy must be determined by the nature and scope of the constitutional violation; (2) the

equitable decree must be remedial in nature, i.e. it must restore the victims of discriminatory

conduct to the position they would have occupied in the absence of such conduct; and (3) the

federal courts must respect the role of state and local authorities in the management of their

affairs. An injunction that removes individual defendants from office, bars them from holding



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public office in the Village, and bars other members of CYL-KJ from office fails on all three

factors.

Plaintiffs scorched earth approach falls far outside the Supreme Courts remedial

model and, thus, sits outside this Courts authority. First, the relief plaintiffs seek is not geared

towards remedying the violations they allege. In fact, it is not at all clear how the wholesale

replacement the Villages public officers will cure plaintiffs alleged constitutional wrongs, such

as disparate taxation, municipal fees, and enforcement of building and zoning laws. Such

relief would leave the alleged wrongs themselves untouched and would leave open the

possibility that future officials could do the very same thing. This Court does have the ability, in

proper circumstances, to issue efficacious injunctions geared and tailored to proven wrongdoing.

Following a demonstration of wrongdoing, a direction to defendants not to repeat the misconduct

would be more direct.

In addition to being entirely too broad, the relief plaintiffs seek is impermissibly punitive

rather than remedial. Since plaintiffs cannot permissibly claim that the mere occupancy of office

by Reisman and/or Goldstein and/or Freund and/or Landau and/or Wieder violates their

constitutional rights, they cannot claim that individual defendants removal from office is

remedial. That is, plaintiffs cannot possibly claim that the removal and indefinite ban of

defendants from public office will, in and of itself, restore them to the position they would have

been in if these particular individuals had not been in office. The only purpose such removal

might serve is punitive. Such punishment is outside the Courts equity powers, as [t]he historic

injunctive process was designed to deter, not to punish. See Hecht Co. v. Bowles, 321 U.S.

321, 329 (1944).



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Notably, plaintiffs cannot even argue that any punitive remedy mightbe appropriate, as

they have not alleged that the individual defendants have actually engaged in any wrongful

conduct. Defendants only real allegations with respect to Trustees Reisman, Goldstein, Freund,

and Landau are that they are Trustees, (FAC 22-25), and members of CYL-KJ.

For Mayor Wieder, plaintiffs only claims are that (1) he holds a leadership position in

the CYL-KJ; (2) he has, as a leader of CYL-KJ, along with other leaders, ordered members to

repudiate certain weddings and excommunicated the married couples, (FAC 53); and (3) he

once became angry when KJ building inspector Lawrence Rossini ordered the power shut off to

a religious school building because of a fire. None of these allegations suffice to establish a

constitutional violation and, therefore, afford a basis for any punishment, even if such

punishment was permissible.

Ultimately, since there is no allegation that defendants Reisman, Goldstein, Freund,

Landau, and Wieder have actually committed a constitutional wrong, this Court cannot impose

an injunction that binds these defendants. See Milliken v. Bradley, 418 U.S. 717 (1974)

(Milliken I) (a District Court exceeded its authority in fashioning inter-school-district relief

where the surrounding school districts had not themselves been guilty of any constitutional

violation.)

Finally, an injunction of the sort plaintiffs seek here would transgress the Supreme

Courts admonition that, in fashioning equitable relief, a federal court should be mindful of the

interests of federalism, respect state and local government, and limit its involvement in local

affairs to the extent practicable. See Milliken II, 433 U.S. at 280-281. This consideration is

paramount. See Missouri v. Jenkins, 495 U.S. 33, 51 (1990) ([O]ne of the most important



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considerations governing the exercise of equitable power is a proper respect for the integrity and

function of local government institutions.)

In Jenkins, the Supreme Court split five-to-four on the question of the federal courts

power to order increases in taxes where state law prohibits the increase. While ultimately

upholding this power, the Court noted:

In assuming for itself the fundamental and delicatepower of taxation the District Court not only

intruded on local authority but circumvented it

altogether. Before taking such a drastic step theDistrict Court was obliged to assure itself that no

permissible alternative would have accomplished

the required task.

Jenkins, 495 U.S. at 51.

In keeping with this rule, the Court was unanimous on one point: it was error for the

district court to issue an order increasing the taxes, rather than ordering local officials to

effectuate the increase. This is because, [a]uthorizing and directing local government

institutions to devise and implement remedies not only protects the function of those institutions

but, to the extent possible, also places the responsibility for solutions to the problems of

segregation upon those who have themselves created the problems. Id.

Here, proper respect for local governments and institutions counsels this Court against

issuing plaintiffs drastic relief. Legal research reveals not one case in the annals of American

history where a federal court, as part of an injunction in a civil case, removed an elected official

from public office or barred others from seeking public office.

New York, in Executive Law 63-b and in predecessor statutes, has created a procedure

for state courts to adjudicate a claim that a person usurps, intrudes into, or unlawfully holds or

exercises within the state a franchise or a public office. Executive Law 63-b(1). The



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proceeding codified in this statute is known as a quo warranto proceeding. As early as Matter of

Gardner, 68 N.Y. 467 (1877), the Court of Appeals held that a person challenging the right of an

incumbent public office holder may not bring a direct proceeding by way of mandamus but may

only proceed through the Attorney General in a quo warranto proceeding.

In Jewell v. Mohr, 136 N.Y.S. 273 (Sup. Ct. Erie Co. 1912), plaintiff, akin to plaintiffs in

the case sub judice, sought against a sitting village trustee judgment that the defendant is not

entitled to the office of trustee of the village of Blasdell, and that he be ousted and excluded

therefrom. (Emphasis added). The court recognized that plaintiff had no power to seek that

remedy. The title to public office can only be determined by an action brought by the Attorney

General, pursuant to the provisions of section 1948 of the Code of Civil Procedure [a predecessor

of the current quo warranto statute].

In In re Carp, 179 A.D. 387 (4th Dept 1917), the court explained the reason for removing

from collateral attack the right of a duly elected or appointed office holder to hold the office.

The [quo warranto Attorney General exclusivity provision] was framed for the purpose of

protecting a public official from attacks of disappointed competitors and persons not actually

aggrieved, and only those who have actual grievances and can show that the office is illegally

held are entitled to seek redress.

In Association for the Preservation of Freedom of Choice, Inc. v. Dudley, 29 Misc.2d

710, 222 N.Y.S.2d 631 (Sup. Ct. NY Co. 1961), plaintiff claimed that there was a racially

discriminatory conspiracy between the New York City Mayor and four City Council members to

cause only a black person to be elected Borough President of Manhattan. According to the court:

The President of the Borough of Manhattan is an

elected official and as such his right to hold office

cannot be collaterally attacked in the manner hereinattempted by the petitioner. Indirect attacks upon



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the right to hold public office have been disallowedon many occasions. . . . The proper action is one in

the nature of a quo warranto proceeding brought by

the Attorney General on behalf of the people of thestate.

This Court has the power to remedy unconstitutional conduct, but plaintiffs complaint

asks this Court to proceed where no federal court has ventured before. Under the guise of an

eight-person private civil case, plaintiffs seek to turn their lawsuit into a quo warranto

proceeding that seeks removal of duly elected office holders. This transformation would open a

hitherto unopened Pandoras Box, in violation of the Supreme Courts teaching that federal

courts should have due great respect for the ability of states to run their affairs. This includes

state procedures for removing elected officials from office.



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POINT III

DEFENDANTS REISMAN,GOLDSTEIN,FREUND,LANDAU, AND WIEDER HEREBY INCORPORATE

CO-DEFENDANTS ARGUMENTS BY THE OTHER MOVANTS

Individual defendants Reisman, Goldstein, Freund, Landau, and Wieder hereby

incorporate by reference the arguments for dismissal set forth in co-defendants moving papers.

To the extent Court deems claims against Village infirm, those claims are infirm as against the

individual defendants as well.

CONCLUSION

For all of the foregoing reasons, defendants respectfully request that this Court grant their

motion and dismiss plaintiffs Amended Complaint in its entirety as to defendants Jacob

Reisman, Moses Goldstein, Jacob Freund, Samuel Landau, and Abraham Wieder, and strike

those parts of the Amended Complaint that seek to bar these defendants and others from public

office, with such other and further relief as this Court deems just, equitable, and proper.

Dated: Westbury, New YorkAugust 1, 2011

SOKOLOFF STERN LLPAttorneys for Defendants

JACOB REISMAN, MOSES

GOLDSTEIN, JACOBFREUND, SAMUEL LANDAU,

AND ABRAHAM WIEDER

________________________

By: Brian S. Sokoloff

Leo Dorfman355 Post Avenue, Suite 201

Westbury, New York 11590

(516) 334-4500Our File No. 100104


Village Officials Motion for Dissmisal

Documents

Transcript of Village Officials Motion for Dissmisal