Opposition Brief — Brach v. Congregation Yetev Lev D'Satmar, Inc.

ot Bp et r A ‘ Supreme

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No. 95-1136 FEB YF «1996

In The

Supreme Court of the United & °s

oe

October Term, 1995

NACHMAN BRACH, suing in his own behalf and as

representative of a class of Satmar Hasidic Jews,

Petitioner,

vs.

CONGREGATION YETEV LEV D’SATMAR, _INC.,

HONORABLE FRANCIS D. PHILLIPS, II, DISTRICT

ATTORNEY OF ORANGE COUNTY, NEW YORK, THE

COUNTY OF ORANGE, NEW YORK, HONORABLE GAIL

S. SHAFFER, HONORABLE ROBERT ABRAMS and

HONORABLE MARK R. CHASSIN,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF IN OPPOSITION FOR RESPONDENT

CONGREGATION YETEV LEV D’SATMAR, INC.

ISRAEL WEINSTOCK

Counsel of Record

LAW OFFICES OF

ISRAEL WEINSTOCK

Attorneys for Respondent

Congregation Yetev Lev D’Satmar, Inc.

140-06 Rockaway Beach Boulevard

Belle Harbor, New York 11694

(718) 318-1000

Agee (800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21

ervices, inc

Court, Ul 4

i

QUESTIONS PRESENTED

1. Does Petitioner have any “right of sepulcher” which

gives him a state law right of access to the cemetery?

2. Did Petitioner allege that Respondent Congregation

Yetev Lev D’Satmar (“Satmar Congregation”) excluded him

from the cemetery as the result of any discrimination based on

race, ancestry or ethnic origin?

3. Did Petitioner allege that the Satmar Congregation

conspired with the other Defendants-Appellees to deprive

Petitioner of a federally protected constitutional right?

4. Isa privately owned cemetery a public or quasi-public

forum?

5. Did Petitioner allege the existence of a conspiracy to

deprive him of his constitutional rights as the result of class-

based, discriminatory animus?

6. Is the present controversy justiciable in a secular court?

ii

PARTIES TO THE PROCEEDINGS

The parties to this case are as stated in the petition.

Congregation Yetev Lev D’Satmar, Inc. is the governing

body of the Satmar Hasidic sect, and all Satmar religious,

educational and social service organizations throughout the

world are either affiliated with or subsidiaries of Congregation

Yetev Lev D’Satmar, Inc. The subsidiaries of Congregation

Yetev Lev D’Satmar, Inc. include Congregation Yetev Lev

D’Satmar of Kiryas Joel, Inc.

iii

TABLE OF CONTENTS

Page

EES ND SOE ET i

Parties tothe Proceedings ........................ ii

ee iol GUS 9 sa ac va hes ide enol iii

i Bo Bi aos 'sS 64k 88'o 0k vo bosons es iv

Mo ish vecciccececodccs |

Reasons for Denying the Writ ..................... 3

I. Petitioner had no right to enter the cemetery. .. 3

II. The First Amendment does not give Petitioner a

right of access tothe cemetery. .............. 6

III. Petitioner did not allege a violation of 42 U.S.C.

EM dak Capes ceEs oc nso 6s eso «a 8

IV. Petitioner did not state a claim under 42 U.S.C.

PT URUEEASudadcisavedekedéskcdscces 10

V. The cemetery is not a public or quasi-public

PN Sh cthtickehea hie robss keakacevans' 13

VI. Petitioner did not state a claim under 42 U.S.C.

EAN es deh nee wb had Bide de od sccncee 15

VII. This controversy is not justiciable. .......... 17

Ey gl Sa I, 19

iv

Contents

Page

TABLE OF CITATIONS

Cases Cited:

Adickes v. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26

Rc As ee REINO Aa dca dane accesesndbeantenne 10

Atkinson v. B.C.C. Associates, Inc., 829 F. Supp. 637

Rain hs RED oh ok nae dw caaees venteawr eens 10, 11

Biondo v. Church of the Immaculate Conception, 102

A.D. 2d 809, 476 N.Y.S. 593 (2d Dept. 1984) ...... 5

Blum v. Yaretsky, 457 U.S.991, 102 S. Ct. 2777, 73 L. Ed.

POSURE EEE ccdinecibadesnnnd sanssvaaebcehes 11

Burton v Wilmington Parking Authority, 365 U.S. 715, 81

aoe. FS le | re 10

Congregation Beth Yitzhok v. Briskman, 566 F. Supp. 555

Gace MOUS ch cides cknunhs dcesanksaneses 17,18

Crist v. Village of Larchmont, 797 F. Supp. 309 (S.D.N.Y.

SOUGR doc chensecdvbedneséedtusacenganéauiinnls 12,15

Daniell v. Hopkins, 257 N.Y.112(1931) ............ 4

Doe v. Smith, 704 F. Supp. 1177 (S.D.N.Y. 1988) ..... 12,13

Emanuel v. Barry, 724 F. Supp. 1096 (E.D.N.Y. 1989)

nb 0hecs.cdedocceh cepa athowhs Lekdeagnseeswnée 9, 16

Vv

Contents

Page

Evans v. Newton, 382 U.S. 296, 86S. Ct. 486, 15 L. Ed. 2d

TIGR) orixnnnnne bakmiesk birds adh anes ok 10

EzAchaim Society, Inc. v. Cohen, 181 N.Y.S. 2d 717 (Sup.

RATE ROD oo 5 eta 5,6

Fine v. City of New York, 529 F.2d 70 (2d Cir. 1975) ... 13

Fromer v. Shientag, 16 Misc. 2d 953, 189 N.Y.S. 2d 937

(Sup. Ce. N.Y. Cty, 1959) . 2 oo... occ ccesccse 3

Gilbert v. Feld, 788 F. Supp. 854 (E.D. Pa. 1992) ..... 13

Girard v. 94th Street and F ifth Avenue Corporation, 530

PomOGG Re0Gie, 1999) one on ss iv odniccc. ke 16

Griffin v. Breckenridge, 403 U.S. 88,91 S.Ct. 1790, 29L.

DP OEY 6s <shiacrsdedlce oo 15, 16

Grunwald v. Bornfreund, 696 F. Supp. 838 (E.D.N.Y.

POE Ved exebcsscisnleahvevniae eo. 19

Hammerstein v. Woodlawn Cemetery, 194 N.Y.S. 2d 385

(Sup. Ct. N.Y. Cty. 1960) ..............0656.... 4,5

Herrman v. Moore, 576 F.2d 453 (26 Cir. 1978) ....... 16,17

Jews for Jesus, Inc. v. Jewish Community Relations

Council of New York, Inc., 968 F.2d 286 cee? seca RM

Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S. Ct.

2186, 20L. Ed. 2d 1189(1968) .................. 8

vi

Contents

Page

Jones v. Wolf, 443 U.S. 595, 99 S. Ct. 3020, 61 L. Ed. 2d

899 QOTO) ccvevcnsedessseecesensansessnettn 17,18

Kedroff v. St. Nicholas Cathedral of Russian Orthodox

Church, 344 U.S. 94, 73 S. Ct. 143, 97 L. Ed. 2d 120

(IGER) « « caceescudcndecesdpavadaebaweeessaee 18

LeBlanc-Sternberg v. Fletcher, et al., 781 F. Supp. 261

(B.D. AGE) ic cincdovs cd00iasendeeShrnduns 9

Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S. Ct. 2219, 33

Rew GBB UR LED TED won id ccdcbwecs Sawssuccasds 14,15

Lugar v. Edmonson Oil Co., 457 U.S. 922, 102 S. Ct.

2t44, TSE. BE. SAGES TES) cvccadveccsccecess 11,12

Lyng v. North Indian Cemetery Protective Association,

485 U.S. 439, 108 S.Ct. 1319, 99 L.Ed. 241319 ... 7

Marsh v. Alabama, 326 U.S. 501, 66 S. Ct. 276, 90 L.

WG. 26 BER CEI. cccccesccnccccscune 13,14, 15

McKinney v. George, 556 F. Supp. 645 (N.D. Ill. 1983)

vbne0ee66usececneeacbase sleeeneenaeneaesaann 13

Neustein v. Ohrbach, 732 F. Supp. 333 (E.D.N.Y. 1990)

a pcctennduéceesbsugeebbesnbideenseoseeeuyees 16,17

Newman y. Bloomingdale's, 543 F. Supp. 1029

CS.DIC.Y, SSGRD oi ccc bacsecccvcccnccnvctccccse 12,13

vii

Contents

Page

Ostrer v. Aronwald, 567 F.2d 551 (2d Cir. 1977) ...... 13

Park Slope Jewish Center v. Stern, 491 N.Y.S. 2d 958

(Sup. Ct. Kings Co. 1985), rev’d in part, 128 A.D. 2d

847,513 N.Y.S. 2d 767 (2d Dept. 1987) ........... 4

Paul v. Watchtower Bible and Trust Society of New York,

Inc., 819 F.2d 875 (9th Cir. 1987), cert denied, 484

U.S. 926, 108 S. Ct. 289, 98L.Ed.2d249 ......... 19

Peavey v. Polytechnic Institute of New York, 775 F.

Supp. 75 (E.D.N.Y.1991) ...................... 13, 16

People v. Leonard, 62 N.Y. 2d 404, 477 N.Y.S. 2d 111,

SOS N.B. 20 G31 (1964) ow... cc ccc ccc cccucnnce 15

Pillar of Fire v. Denver Urban Renewal Authority, 509

P.2d 1250 (Sup. Ct. Colo. 1973) ...............6. 7

Shaare Tefila Congregation, et al. v. Cobb, et al., 481

U.S. 615, 107 S. Ct. 2019, 95 L. Ed. 24594(1979).. 8,9

Sockel v. Degel Yehudo Cemetery Corp., 268 A.D. 2d

207, 49 N.Y.S. 2d 176 (1st Dept. 1944) ........... 5

St. German of Alaska Eastern Orthodox Catholic

Church v. United States, 840 F.2d 1087 (2d Cir. 1988)

Terry v. Elmwood Cemetery, 307 F. Supp. 369 (N.D. Ala.

REibiivduakdvinehdes sancumhesblests dans oo 4,5

vill

Contents

Page

Traggis v. St. Barbara’s Greek Orthodox Church, 851

Pet es PEE Si bp scdecvdedsetediaaens 16

United States v. Price, 383 U.S. 144, 86S. Ct. 1152, 16

hc I PE LPT cob dea ddckeuderecteceienens 10

Weiss v. Willow Tree Civic Association, 467 F. Supp. 803

RR hh Se a rrr errr er rie 8

Zemsky v. City of New York, et al., 821 F.2d 148 (2d Cir.

SSG disncrediisiniwseccivssveteeseeenti 9

Statutes Cited:

GEO OE oi ocie bande budecabeaseeusnrn 8,9, 16

ck 8 Eo | POT Ter er rer es Tres 10,12, 13,15

RE Rod Bos er rer: ry ree 15

GEU.GL. GS FRG hedowecetdccccctecseesceves 15, 16,17

United States Constitution Cited: ~~

I ee nr ee rr Ee 6,7,17

|

STATEMENT OF THE CASE

Respondent Congregation Yetev Lev D’ Satmar, Inc. (“the

Satmar Congregation”) is a religious corporation organized

under the laws of New York in 1947 and is the governing body of

the Satmar Hasidic sect. Prior to 1979, the Satmar Congregation

was led by its Rebbe or spiritual leader, Rabbi Yoel Teitelbaum.

Satmar is probably the largest and most important Hasidic sect,

with substantial communities in the New York metropolitan

area, Israel, Europe and various locations throughout the world.

The headquarters of the Satmar Congregation, and its most

important community, are located in the Williamsburgh section

of Brooklyn. It is not contested that virtually all members of

Satmar are white Jewish people of eastern European origin.

Rabbi Yoel Teitelbaum died in August 1979. Since that time,

the Satmar Congregation has been led by Rabbi Moshe

Teitelbaum, who was chosen as the successor to the late Rebbe by

a general assembly of the membership. The Satmar

Congregation owns a cemetery in Kiryas Joel, Orange County,

New York, where the deceased Rebbe is buried along with many

of his followers. It is not contested that title to the cemetery is

held by the Satmar Congregation. Prior to 1987, and long before

the acts complained of here, the cemetery was owned by

Congregation Yetev Lev D’Satmar of Kiryas Joel, Inc., a

subsidiary of Respondent Congregation Yetev Lev D’ Satmar,

Inc. [Joint Appendix (henceforth “A”), 230-231 and 233).

The cemetery is a private burial ground of the Satmar

Congregation and does not sell plots to members of the

congregation or to the public (A109-110). Burial in the cemetery

is provided by the Satmar Congregation to members of the

Satmar Congregation as a benefit of membership (A110-111).

No person has ever acquired title to a burial plot in the cemetery.

Neither the Complaint nor the First Amended Complaint allege

2

that Petitioner (or any other person) has acquired title toa plotin

the cemetery, or that any person is buried there other than as a

death benefit provided by the Satmar Congregation to its

members.

Petitioner Nachman Brach is a supporter of a small, militant

splinter group which is violently opposed to the authority of the

present Rebbe. This group consists of forty-one families who

reside in Kiryas Joel, in addition to Petitioner Brach, whoresides

in Brooklyn. After a lengthy controversy, the Satmar

Congregation expelled this splinter group in February 1989

(A42, 48-49). It is not contested that the putative class consists

of the members of this group. Petitioner and all members of the

putative class are white Jewish people of eastern European

origin and are indistinguishable from other Satmar Hasidim in

race, ancestry, and appearance.

Large numbers of Satmar Hasidim gather at the graveside of

the late Rebbe on the “Yahrzeit”, or anniversary of his death. In

August 1992 the Satmar Congregation banned the Petitioners

from the cemetery on the date of the Yahrzeit, after their

activities in previous years led to disturbances. On August 21,

1992, four days before the Yahrzeit, the members of the putative

class commenced a proceeding in the Supreme Court, Orange

County to prohibit the Satmar Congregation from denying them

access to the cemetery on the Yahrzeit (A39-65). On August 24,

1994 Justice Louis Barone of the Supreme Court, Orange County

denied the petition, holding that the question of access to the

cemetery was anon-justiciable religious controversy (A67-68).

This decision was never appealed. Petitioner Nachman Brach

was nota party to this proceeding.

The Village of Kiryas Joel is an incorporated village of the

State of New York and is a part of the Town of Monroe. The

Village was developed in the 1970s by private investors on land

3

owned by them, working in cooperation with the late Rabbi Yoel

Teitelbaum. Residence in the village is not limited to members of

the Satmar Congregation, and the residents of the village include

persons who are not members of the Satmar Congregation and

even a small number of non-Jews (A110). Village officials are

elected by the voters of the Village. The Village is not a party to

this action, and no Village official is alleged to have been a

participant in the efforts of the Satmar Congregation to bar

Petitioner from the cemetery. The remaining allegations

concerning the alleged links between the Satmar Congregation

and the Village are irrelevant to this action. This is especially true

of the alleged “tax” on new construction by the Satmar

Congregation, which is in fact a contribution levied by the

Satmar Congregation on its own members to support the

Congregation’s institutions and is not binding on persons who

are not members of the Satmar Congregation, such as Petitioner.

All funds collected from members of the Satmar Congregation

belong to the Satmar Congregation, not to the Village of Kiryas

Joel, and are used by the Satmar Congregation for its own

purposes. Neither the Village nor any of its officials are parties

to this action.

REASONS FOR DENYING THE WRIT

I.

PETITIONER HAD NO RIGHT TO ENTER THE

CEMETERY.

The threshold question here is whether Petitioner had a

property right to enter the cemetery under New York law, in

default of which he had no “civil rights” to be violated. The

District Court and the Second Circuit held correctly that

Petitioner had failed to demonstrate any right to enter the

cemetery, which is the property of the Satmar Congregation.

4

Petitioner claimed that he had the right to enter the cemetery

under the so-called “right of sepulcher”, which allegedly accrues

toa person who acquires a burial plot in a public cemetery to bury

a deceased relative. These rights are limited to the right of

interment, the right toerect a suitable monument, and the right to

see to it that the gravesite is cared for properly. Daniell v.

Hopkins, 257 N.Y. 112 (1931); Hammerstein v. Woodlawn

Cemetery, 194N.Y.S.2d385 (Sup. Ct. N.Y. Cty. 1960).

Since the Petitioner had no right to enter the cemetery, the

Satmar Congregation did not violate any federally protected

right of the Petitioner, or of the members of the proposed class.

Petitioner claims that his religious beliefs require him to offer

prayers at the gravesite of the late Rebbe, Rabbi Joel Teitelbaum,

of members of his family, and of other “persons of sacred

memory” and that he has a right to access to the cemetery to

exercise his religious freedom. Petitioner concedes that the

cemetery is the private property of the Satmar Congregation. It

is well settled under New York law that areligious congregation

has the right to control access to and use of its property. Park

Slope Jewish Center v. Stern, 491 N.Y.S.2d 958 (Sup. Ct. Kings

Co. 1985), rev’din part, 128A.D.2d847,513N.Y.S.2d 767 (2d

Dept. 1987).

The law recognizes two types of graveyards, public and

private. The basis for the distinction is that burial in a public

cemetery is open to members of the general public who wish to

purchase burial plots and that burial in a private cemetery is

limited to a family orto a small portion of the community. Terry

v. Elmwood Cemetery, 307 F. Supp. 369, 370 (N.D. Ala. 1969).

The cemetery at issue here is a private cemetery. Burial in the

cemetery is limited to members of the Satmar Congregation who

are buried there as a death benefit provided by the Satmar

Congregation to its members. Residents of the Village of Kiryas

Joel are not eligible for burial in the cemetery unless they are

TS TT Os oF hes _ a ee

'§ OP Ete, Pe eS Pee ee

5

members of the Satmar Congregation. The Satmar Congregation

does not sell burial plots in the cemetery, either to the general

public or to its own members. No person buried in the cemetery

has a deed toa burial plot, and none of the Petitioners (or anyone

else) has a deed which entitles them to be buried in the cemetery.

The cemetery is limited to a small portion of the community as

defined by Terry and is thus a private cemetery.

There is little or no case law construing the rights of

deceased persons and their heirs with respect to a private

cemetery. However, Petitioner would not have ari ght of access =

to the cemetery even if it was a public cemetery. The Courts have

held that a deed for a plot in a public cemetery does not convey

title to the plot but merely a right in the nature of an easement or

license to be buried in the plot. Daniell v. Hopkins, 257N.Y. 112,

117 (1931); Sockel v. Degel Yehudo Cemetery Corp.,268A.D.2d

207, 208, 49 N.Y.S. 2d 176 (1st Dept. 1944); Hammerstein v.

Woodlawn Cemetery, supra, 387. This easement or license is

limited to the right of interment and the right to erect a suitable

monument and to care for the plot. Hammerstein, supra; Fromer

v. Shientag, 16 Misc. 2d 953, 189N.Y.S.2d937, 940-41 (Sup. Ct.

N.Y. Cty. 1959). In the present action, there is no issue

concerning the exercise of the right of interment or of the right to

erect a monument, and there is no allegation that the alleged

gravesites of Petitioner’s kin are not being cared for properly.

The New York courts have upheld the right of cemeteries to

regulate the use of the right of interment and the right to erect a

monument, and have held that the exercise of these rights is

subject to the rules and regulations of the cemetery

administration. Daniell, supra. In Biondo v. Church of the

Immaculate Conception, 102 A.D. 2d 809, 476 N.Y.S. 593 (2d

Dept. 1984), the Court upheld the right of the cemetery to deny

the Petitioner permission to plant a tree by his wife’s gravesite.

In EzAchaim Society, Inc. v. Cohen, 181 N.Y.S.2d717,719 (Sup.

6

Ct. Bronx Cty. 1958), the Court upheld the right of the cemetery

to prohibit monuments containing improper and offensive

inscriptions.

The case law set forth above demonstrates that the easement

or license granted by a deed toa public cemetery would not give

Petitioner the rights which he claims have been infringed. Even

if he owned deeds to the plots where he claims that his relatives

are buried, he would have the right only toerect amonument over

the grave and to arrange for the care of the gravesite. The alleged

right of sepulcher would not grant Petitioner the right to pray or

to conduct religious services at the gravesite without the

permission of the cemetery administration. Petitioner certainly

does not have aright to do so in a private cemetery where he has

not acquired any easement or license of any type.

Moreover, the supposed right of sepulcher does not give the

Petitioner the right to worship at the gravesite of the late Rebbe

or of other so-called “persons of sacred memory.” The real

purpose of this action (and of the previous litigation in state court

by members of the proposed class) is to obtain access to the

gravesite of the late Rebbe. Petitioner has no property right, by

easement, license, or otherwise, to access to the gravesite of the

late Rebbe. In the absence of any right based on property rights,

the District Court acted correctly in dismissing the complaint.

Il.

THE FIRST AMENDMENT DOES NOT GIVE

PETITIONER A RIGHT OF ACCESS TO THE

CEMETERY.

On appeal to the Second Circuit, Petitioner claimed for the

first time that his First Amendment right of free exercise of

religion required the Satmar Congregation to allow him access

7

to the cemetery. No case law has been cited to support this novel

proposition. A claim based on free exercise of religion requires

state action impinging on a person’s right to practice their

religion, not the actions of private parties such as the Satmar

Congregation. St. German of Alaska Eastern Orthodox Catholic

Church v. United States, 840 F.2d 1087 (2d Cir. 1988).

In Lyng v. North Indian Cemetery Protective Association,

485 U.S. 439, 108 S. Ct. 1319, 99 L. Ed. 2d 1319, this Court

rejected a claim by three American Indian tribes that the

construction of a proposed road in a “sacred area” violated the

free exercise of religion. The Court found not only that state

action was required, but that plaintiffs had to demonstrate that

the proposed government action coerced them to violate their

religious beliefs. Lyng, 108 S. Ct. at 1325. Similarly, Pillar of

Fire v. Denver Urban Renewal Authority, 509 P.2d 1250 (Sup. Ct.

Colo. 1973) involved state action (the condemnation of ahistoric

church). Petitioner has not cited any case in which any court held

that the First Amendment grants anyone the right to enter private

property for the purpose of conducting religious ceremonies, nor

has the appellee’s research revealed any such cases.

Petitioner asks this Court to create a doctrine that areligious

organization cannot deny access to its private property to any

person who desires to worship at a so-called shrine. A ruling of

this nature would permanently deprive religious organizations

of the right to control access to their property, not only

cemeteries but also churches, synagogues, religious schools and

any other type of property. This would have a far-ranging impact

not only on the parties to this action but on all religious

organizations of any denomination. The ruling sought by

Petitioner would dictate that the Catholic Church could not

control access to the relics and gravesites of its saints, or that the

Mormon Church would be forced to open its temple in Salt Lake

City to non-Mormons.

Petitioner has not cited any authority which supports his

position that he has a right to conduct prayers or any other

activities in the cemetery. This is because there is no such

authority, and existing case law supports the rights of the Satmar

Congregation. This Court should deny the petition.

Il.

PETITIONER DID NOT ALLEGE A VIOLATION OF

42 U.S.C. § 1982.

Petitioner alleges that the Satmar Congregation violated his

civil rights in violation of 42 U.S.C. § 1982. Until recently the

courts held that this statute applied solely to discrimination

based on race and color. Jones v. Alfred H. Mayer Co., 392 U.S.

409, 88S. Ct. 2186, 20 L. Ed. 2d 1189 (1968); Weiss v. Willow

Tree Civic Association, 467 F. Supp. 803 (S.D.N.Y. 1979). In

1979 this court held that 42 U.S.C. § 1982 was “intended to

protect from discrimination identifiable classes of persons who

are subjected to intentional discrimination solely because of

their ancestry or ethnic characteristics,” and that Jews were a

class protected by the statute. Shaare Tefila Congregation, etal.

v. Cobb, etal.,481 U.S.615,617, 107S.Ct. 2019, 2022, 95 L. Ed.

2d 594 (1979).

Petitioner has not alleged that he is the victim of

discrimination based on ancestry or ethnic characteristics. There

is no allegation that the Petitioner was expelled for any

discriminatory reason. Petitioner concedes that he and the

members of the putative class were expelled from the Satmar

Congregation as aconsequence of an internal quarrel within the

sect, and not on the basis of any discriminatory intent.

The statute prohibits actions directed at interfering with the

9

property rights of Jewish people as a class for discriminatory

reasons. In Shaare Tefila, supra, this Court upheld aclaim by a

Synagogue and its members against certain non-Jewish

individuals who defaced the synagogue building with anti-

Semitic graffiti. The Court held that the statute was intended to

apply to conduct motivated by racial or ethnic prejudice. In

Emanuel v. Barry, 724 F. Supp. 1096 (E.D.N.Y. 1989), the court

held that a Jewish family could maintain an action under 42

U.S.C § 1982 against two non-Jews who set their property on fire

due to anti-Semitic animus. In LeBlanc-Sternberg v. Fletcher, et

al.,781 F. Supp. 261 (S.D.N.Y. 1991) the court upheld aclaim by

Orthodox Jews against the Village of Airmont and the Airmont

Civic Association for actions which were intended to exclude

Orthodox Jews from the village.

The Second Circuit has held, however, that a purely

religious dispute, not motivated by anti-Semitic animus, is not

within the reach of 42 U.S.C. § 1982. In Jews for Jesus, Inc. v.

Jewish Community Relations Council of New York, Inc.,968 F.2d

286 (1992), several Jewish organizations threatened to boycott

a hotel unless it canceled its agreement to accommodate a

convention held by the “Jews for Jesus” sect, a Christian

missionary organization which represents itself to be a Jewish

sect that adheres to the beliefs of Christianity. The Second

Circuit held that there was no cause of action under 42 U.S.C.

§ 1982 because there was no discrimination based solely on the

ancestry or ethnic characteristics of the Plaintiffs-Appellants,

and that the real controversy was based on allegedly deceptive

practices used by the Plaintiffs-Appellants. Jd. at 291. The

Second Circuit had previously held that discrimination based on

race, ancestry or ethnic characteristics is anecessary element of

aclaim under 42 U.S.C. § 1982. Zemsky v. City of New York, etal.,

821 F.2d 148 (2d Cir. 1987). This Court should deny certiorari for

the same reasons.

10

IV.

PETITIONER DID NOT STATE A CLAIM UNDER 42

U.S.C. § 1983.

The First Amended Complaint below attempted to plead a

claim against the Satmar Congregation under 42 U.S.C. § 1983.

The defendant in an action under 42 U.S.C. § 1983 must be either

an officer of the state, or a private person acting in conspiracy

with officers of the state, acting to deprive the Petitioner of a

federally protected right. Adickes v. Kress & Co.,398 U.S. 144,

150, 90S. Ct. 1598, 1604, 26 L. Ed. 2d 142 (1970); United States

v. Price, 383 U.S. 144, 150, 86 S. Ct. 1152, 16 L. Ed. 2d 267

(1966). Petitioner alleged that the Satmar Congregation was

somehow a “political functionary” of the State of New York,

based on the theory that the Satmar Congregation was

“inextricably intertwined” with the Village of Kiryas Joel. First

Amended Complaint, paragraph 24 (A138). The basis for this

theory was the allegation that the elected officials of the Village

of Kiryas Joel were members of the Satmar Congregation and

that the Satmar Congregation used its political influence in the

community to cause them to be elected. Even if this allegation is

true, it does not make the Satmar Congregation a political

functionary of the state. The Satmar Congregation is, of course,

a religious corporation and a private entity.

Petitioner alleges that the Satmar Congregation has a

symbiotic relationship with the State of New York as defined in

Burton v. Wilmington Parking Authority, 365 U.S.715,81S.Ct.

856, 6 L. Ed. 2d 45 (1961). The purpose of the symbiotic

relationship test is to prevent a government agency from

escaping liability for state action by delegating an essentially

public function toa private party. Evans v. Newton, 382 U.S.296,

86 S.Ct. 486, 15 L. Ed. 2d 373 (1966), cited in Atkinson v. B.C.C.

Associates, Inc.,829 F. Supp. 637,645 (S.D.N. Y. 1993). Incases

11

involving admittedly private institutions (such as the Satmar

Congregation) the “plaintiff has the burden of showing ‘the State

is responsible for the specific conduct of which the plaintiff

complains’ (emphasis in original).” Atkinson, supra, at 645,

citing Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S. Ct. 2777,

2786, 73 L. Ed. 2d 534 (1982).

Petitioner did not shown that the state is responsible for the

conduct of the Satmar Congregation. On the contrary, the acts

complained of were alleged to have been instigated by the

leadership of the Satmar Congregation, including the present

Rebbe, Rabbi Moshe Teitelbaum, and his advisors. First

Amended Complaint, paragraph 31 (A140). There was no

allegation that the decision to bar Petitioner from the cemetery

was made pursuant to a rule of conduct imposed by the state or by

a person for whom the state is responsible, as required by Lugar

v. Edmonson Oil Co., 457 U.S. 922, 937, 102 S. Ct. 2744, 2754,

73 L. Ed. 2d 482 (1982).

Petitioner also failed to plead any facts from which a

symbiotic relationship may be inferred. The Village of Kiryas

Joel is nota party to this action. The Satmar Congregation has no

direct control over the village government other than through its

political influence as the religious group to which the

overwhelming majority of Village residents belong. None of the

acts complained of are alleged to have been committed by the

Village authorities. First Amended Complaint, paragraphs 33-34

and 43 (A141-142, 146). Whatever the situation may or may not

be in the Village, the Village is not alleged to have been an actor

in the present controversy.

The numerous allegations made about practices allegedly

imposed by the Satmar Congregation in Kiryas Joel are

irrelevant to the present controversy. All of these rules, including

the alleged decree that persons building houses in Kiryas Joel

12

contribute to the Satmar Congregation, are binding only on

members of the congregation. These contributions are not a tax

of the Village, and the funds raised thereby belong to the Satmar

Congregation and are not public funds of the Village. The

population of the Village includes persons who are not members

of the Satmar Congregation and a small number of non-Jews.

None of these persons are subject to any of the rules of, or are

required to make any contribution to, the Satmar Congregation.

Petitioner also failed to establish that there was aconspiracy

to violate his civil rights. Petitioner alleges that the Satmar

Congregation ‘conspired’ with the state police to cause the

police to bar him from the cemetery. The Satmar Congregation

had the right to bar Petitioner from the cemetery, and

consequently had the right to request that the police stop

Petitioner from entering the cemetery. This Court has held that “a

private parties’ mere invocation of state legal procedures [does

not) constitute ‘joint participation’ or ‘conspiracy’ with state

officials satisfying the Section 1983 requirement of action under

color of state law.” Lugar, supra, 457 U.S. at939n. 21, 102S. Ct.

2744 n. 21, cited in Crist v. Village of Larchmont, 797 F. Supp.

309, 314 (S.D.N.Y. 1992). See also, Doe v. Smith, 704 F. Supp.

1177 (S.D.N.Y. 1988).

Petitioner's claim under 42 U.S.C. § 1983 is based on the

alleged threat of false arrest, which requires an arrest made

without probable cause. Petitioner claims that the cemetery was

public or quasi-public property and that the Satmar

Congregation had no right to threaten him with arrest. The cases

cited above demonstrate that the cemetery is private property

and that Petitioner had no right to enter the cemetery.

The courts have held that furnishing a person's name and

description to the police is not a violation of 42 U.S.C. § 1983,

even if it causes the person’s arrest. Doe v. Smith, supra; Newman

13

v. Bloomingdale's, 543 F. Supp. 1029 (S.D.N.Y. 1982);

McKinney v. George, 556 F. Supp. 645 (N.D. Ill. 1983); Gilbert

v. Feld, 788 F. Supp. 854 (E.D. Pa. 1992). The facts in Doe, supra,

are analogous to those in the present action. In Doe the plaintiff

alleged that a criminal complaint against him was false and

malicious. The court held that this failed to state a claim under 42

U.S.C. § 1983. Similarly, in Newman the Petitioner alleged that

the defendant conspired with the local police department to

ca se the police to arrest and charge any person whom the

defendant accused of shoplifting.

The First Amended Complaint alleged in conclusory terms

that the Satmar Congregation conspired with the police to bar

him from the cemetery, but failed to state how the Satmar

Congregation violated his rights by giving his name to the police,

or how the police became parties to a conspiracy simply by

performing their duties as police officers. The courts have

consistently held that claims under 42 U.S.C. § 1983 must be

pleaded with particularity. Fine v. City of New York, 529 F.2d70,

73 (2d Cir. 1975); Ostrer v. Aronwald, 567 F.2d 551,553 (2d Cir.

1977); Doe, supra; Peavey v. Polytechnic Institute of New York,

775 F. Supp. 75, 77 (E.D.N.Y. 1991). The First Amended

Complaint does not set forth the Petitioner’s alleged claim under

42 U.S.C. § 1983 with particularity and was properly dismissed.

Vv.

THE CEMETERY IS NOT A PUBLIC OR QUASI-

PUBLIC FORUM.

Petitioner claimed below (in an attempt to state a claim

under 42 U.S.C. § 1983) that the cemetery is a public or quasi-

public forum within the meaning of Marsh v. Alabama, 326 U.S.

501, 66 S. Ct. 276, 90 L. Ed. 2d 265 (1946) and various other

cases. The basis for this claim was that the Satmar Congregation

14

permits persons who are not members of the Satmar

Congregation (other than Petitioner and the members of the

proposed class) to visit the cemetery.

In Marsh v. Alabama this Court held that the streets of a

company town were a public forum, since they were open to the

general public without restriction. In particular, Marsh v.

Alabama involved a business district located on company

property which the company opened to the general public for

profit. This Court held that “the more an owner, for his

advantage, opens up his property for use by the public in general,

the more do his rights become circumscribed by the statutory and

constitutional rights of those who use it (emphasis added).” /d.

at 506.

Petitioner concedes that the Satmar Congregation does not

open the cemetery to the general public without restriction. The

cemetery is enclosed, and persons entering the cemetery are

subject to restrictions concerning their dress and conduct in the

cemetery. The public does not enjoy unrestricted access to the

cemetery, unlike a public street where the public has access at

any time and for any !awful purpose. Moreover, the Satmar

Congregation does not derive any benefit from the public which

visits the cemetery, unlike the owner of the company town which

made a profit from the activities of the company-owned business

district. In this respect, the cemetery is not different from a

synagogue owned by the Satmar Congregation, which the public

would be permitted to enter for certain limited purposes but not

without restriction or without the permission of the Satmar

Congregation.

The other cases cited by Petitioner actually support the

position of the Satmar Congregation. In Lloyd Corp. v. Tanner,

407 U.S. 551, 92 S. Ct. 2219, 33 L. Ed. 2d 131 (1972), the

respondents claimed that a shopping mall was the “functional

15

equivalent of a business district” within the meaning of Marsh v.

Alabama. The court held that the owners of the shopping center

did not assume or exercise municipal functions, as in the case of

the company town, and that they had the right to bar the

respondents from distributing handbills. Lloyd at 551.

Crist v. Village of Larchmont, 797 F. Supp. 309 (S.D.N.Y.

1992) also strongly supports the position of the Satmar

Congregation that the cemetery is not a public forum. In Crist the

court rejected Petitioner’s argument that the church was a public

forum because it hosted a fund-raising event for an abortion-

rights organization. Similarly, in People v. Leonard,62N.Y.2d

404,477 N.Y.S. 2d 111, 465 N.E. 2d 831 (1984), the New York

Court of Appeals upheld the right of the State University of New

York to declare the defendant persona non grata on its campuses,

although the case was dismissed on other grounds. There is no

basis for Petitioner’s claim that the cemetery is a public forum.

VI.

PETITIONER DID NOT STATE A CLAIM UNDER 42

U.S.C. § 1985.

Petitioner sought relief under 42 U.S.C. §§ 1985(2) and (3).

No facts were alleged in support of any claim that the defendants

conspired to deter any person from appearing cr testifying in

court or to obstruct court proceedings within the meaning of 42

U.S.C. § 1985(2). The remaining claim under 42 U.S.C.

§ 1985(3) alleged that the defendants conspired to deprive

Petitioner of his right to exercise his freedom of religion.

Aclaim under 42 U.S.C. § 1985(3) requires a showing of a

conspiracy to violate Petitioner’s constitutional rights based on

racial or otherwise class-based, discriminatory animus. Griffin

v. Breckenridge, 403 U.S. 88, 97,91 S.Ct. 1790, 1796, 29 L. Ed.

16

2d 338 (1971); Jews for Jesus, Inc. v. Jewish Community

Relations Council, Inc., supra, 291; Traggis v. St. Barbara’s

Greek Orthodox Church, 851 F.2d 584, 586-87 (2d Cir. 1988);

Herrman v. Moore, 576 F.2d 453, 457 (2d Cir. 1978); Peavey,

supra, at 78. Petitioner did not allege that there was aconspiracy

to violate his rights, or that he is the victim of any class-based,

discriminatory animus.

The First Amended Complaint [paragraph 44 (A146-147)]

alleged in conclusory terms that the Satmar Congregation, the

County of Orange and the District Attorney conspired to deprive

him of his rights. There were no allegations of any conspiratorial

intent or of any class-based animus on the part of the county and

the District Attorney. Petitioner may not assert aclaim under 42

U.S.C. § 1985(3) which alleges that only one party acted with the

intent to deprive him of his rights. Girard v. 94th Street and Fifth

Avenue Corporation, 530 F.2d 66, 70 (2nd Cir. 1975).

Petitioner did not allege that the Satmar Congregation acted

with any class-based, discriminatory intent. Petitioner admits

that this controversy arose from his refusal to accept the

authority of the present Rebbe and was not based on any

discriminatory animus. See paragraphs 26-27 the First Amended

Complaint (A138-139). Petitioner and his supporters do not

constitute a class within the meaning of 42 U.S.C. § 1985(3). The

purported class alleged by Petitioner is a “class” comprised of

Satmar Hasidim who refuse to recognize the authority of Rabbi

Moshe Teitelbaum as the Rebbe, and does not exist as a group

that is distinct from other Satmar Hasidim.

The courts have held that the requirement of a class-based,

discriminatory animus is analogous to the requirement of

discrimination on the basis of race, ancestry and ethnic origin

under 42 U.S.C. § 1982. Jews for Jesus, supra, at 292; Emanuel

v. Barry, supra, at 1101; Neustein v. Ohrbach, 732 F. Supp. 333,

17

344 (E.D.N.Y. 1990). Private malice and political controversies

are not actionable under 42 U.S.C. § 1985(3). Herrman, supra,

at 457; Neustein at 344. As the District Court correctly observed,

this would “mean that any internal dispute between members of

a religious organization could escalate into a civil-rights suit for

religious discrimination.” Memorandum and Order, page 17

(A263). Since Petitioner failed to state facts which allege either

a conspiracy to violate his rights or an act made on the basis of

class-based, discriminatory animus, the District Court acted

correctly in dismissing the claims under 42 U.S.C. § 1985(3).

VII.

THIS CONTROVERSY IS NOT JUSTICIABLE.

The judge in the state court proceeding in Orange County,

New York held that the claims made by the members of the

putative class required the court to delve into religious questions

which were not justiciable in a secular court. Petitioner was not

a party to that proceeding, but the same rule of law applies to this

action.

This Court held in Jones v. Wolf, 443 U.S. 595, 99 S. Ct.

3020, 61 L. Ed. 2d 775 (1979), that the First Amendment

“prohibits civil courts from resolving church property disputes

on the basis of religious doctrine and practice.” Jd. at 602,99 S.

Ct. at 3024-25. This Court also held that a civil court could

determine such disputes only to the extent that it could do so

through the application of neutral principles of law and without

inquiry into religious questions. Jd.

Congregation Beth Yitzhok v. Briskman, 566 F. Supp. 555

(E.D.N.Y. 1983) is remarkably similar to the present

controversy. The defendants in Congregation Beth Yitzhok were

members of the Skole Hasidic sect who refused to recognize the

18

succession of the grandson of the previous Rebbe after the

previous Rebbe died in 1979. The plaintiff congregation sued

these individuals to obtain property seized by the dissident

faction. The Court held that it could not determine the

controversy by reference to neutral principles of law as required

by Jones v. Wolf. Instead, the Court held that “in cases involving

a dispute between two or more religious factions, the Court must

look beyond the allegations of the complaint to ascertain what

lies at the heart of the controversy.” Congregation Beth Yitzhok,

supra, at 558, citing Kedroff v. St. Nicholas Cathedral of Russian

Orthodox Church, 344 U.S. 94, 73 S. Ct. 143, 97 L. Ed. 2d 120

(1952).

Petitioner concedes that this controversy arose from his

refusal to accept the authority of the present Rebbe and the

institutions of the Satmar Congregation. The secular courts

cannot determine the present controversy without delving into

the factional dispute which led to Petitioners expulsion from the

Satmar Congregation. These matters cannot be resolved by

reference to neutral principles of law. The District Court did not

reach this question, holding that it was unnecessary to make a

ruling when there were other grounds to dismiss the complaint.

Memorandum and Order, page 17n (A263-264).

If this Court were to reverse the decision of the courts below,

the District Court would be forced to determine whether

Petitioner had the right to contest the succession of the present

Rebbe, whether the Satmar Congregation had the right to expel

Petitioner under the laws of the Jewish religion and the practices

of the Satmar Hasidic community, and questions pertaining to

the internal discipline of the Satmar Congregation. These

questions cannot be separated from the controversy concerning

access to the cemetery.

The courts have consistently held that religious sects have

19

\

the right to discipline or expel members, and that expulsion is not

an actionable tort. Paul v. Watchtower Bible and Trust Society of

New York, Inc., 819 F.2d 875 (9th Cir. 1987), cert. denied, 484

U.S. 926, 108 S. Ct. 289, 98 L. Ed. 2d 249. The courts have

specifically upheld the right of a Hasidic Jewish community to

expel its members. Grunwald v. Bornfreund, 696 F. Supp. 838

(E.D. N.Y. 1988).

The present controversy is not justiciable in a civil court.

The dispute is heavily laden with religious questions and cannot

be determined without resolving these questions. The Court

should affirm the order of the District Court on this ground as

well as on the others set forth herein.

CONCLUSION

For the reasons set forth above, the Court should deny a writ

of certiorari, together with such further and different relief as the

Court may deem just and proper.

Respectfully submitted,

ISRAEL WEINSTOCK

Counsel of Record

LAW OFFICES OF

ISRAEL WEINSTOCK

Attorneys for Respondent

Congregation Yetev Lev D’Satmar, Inc.

140-06 Rockaway Beach Boulevard

Belle Harbor, New York 11694

(718)318-1000