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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1996
- **Citation:** 516 U.S. 1173

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1563%3A2. Public record. Not legal advice.