Opposition Brief — Village of Airmont v. LeBlanc-Sternberg

Supreme Court, U.S.

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No. 96-1397

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In the Supreme Court of the Umted-States——

OCTOBER TERM, 1996

VILLAGE OF AIRMONT, PETITIONER

v.

YITZCHOK LEBLANC-STERNBPERG, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WALTER DELLINGER

Acting Solicitor General

ISABELLE KATZ PINZLER

Acting Assistant Attorney

General

JESSICA DUNSAY SILVER

MARIE K. MCELDERRY

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

—

QUESTION PRESENTED

Whether the court of appeals correctly upheld the

validity of the terms of the injunction entered by the

district court.

(1)

TABLE OF CONTENTS

Page

an ig SER AEC LESDI CaCO Se OD TR ]

ty ag Ee OEE ASLO TL TOOT ORLA 2

NTI Cilaircisthesentachiaca deidenscscecp-eo 2

es ta NE Ie EASE aS IAN I le ae ae 11

ce cae AIS A SPORE RE 19

I ce eg a la

ne epeesica LOR EE ee ENA OE A ETRE ARE lla

TABLE OF AUTHORITIES

Cases:

Braunfeld v. Brown, 366 U.S. 599 LEONE F wistansvtacss 16

Buchanan v. Warley, 245 U.S. 60 RIED wickveshasc: 13

Church of Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520 (1998) ........s.ccscecee0e0-......... 15-16

Elrod v. Burns, 427 U.S. 347 2 1 BNRESSR Aare 15

Employment Div., Dep't of Human Resources v.

Smith, 494 U.S. 872 (1990) ........cccececceooseceoces...,.. 15

Farmer v. Brennan, 511 U.S. 825 | Sica 14

First Assembly of God of Naples, Florida, Inc. vy.

Collier County:

20 F.3d 419, modified on denial of rehearing,

27 F.3d 526 (11th Cir. 1994), cert. denied,

DPM A WOME EIOOMDD cocoacesesestansccsdescineis,.<. 17, 18

27 F.3d 526 (11th Cir. 1994), cert denied,

Oe Stes WOOD CLOUD ici csnsicsencoaeeseccscsccargcc. 18

Grosz v. City of Miami Beach, 721 F.2d 729

(11th Cir. 1983), cert. denied, 469 U.S. 827

RE MMU iene oe os Cc 15, 17

Huntington Branch, NAACP vy. Town of

Huntington, 844 F 2d 926 (2d Cir.), aff’d,

RI I TD i alco ee 13

(IIT)

IV

Cases—Continued: Page

Islamic Center of Mississippi, Inc. v. City of

Starkville, 840 F.2d 293 (5th Cir 1988) ................ 18

Keego Harbor Co. v. City of Keego Harbor,

GOs Fee Oe TOG CIE, BOOED <icicnen so snednecicccrssevessanens 16-17

Lakewood, Ohio Congregation of Jehovah’s

Witnesses, Inc. v. City of Lakewood, 699

F.2d 303 (6th Cir.), cert. denied, 464 U.S.

BO 1 SOOT avai cenigustenkcisia avin thasnasisssnjasicedicssedenesiienein 15, 16, 17

LeBlanc-Sternberg v. Fletcher:

763 F. Supp. 1246 (S.D.N.Y. 1991) ....cccccssseeeeeeee 4-5

Tah Fa Bk CC EIIN, 0. GOLD can iccscencdescsstarvevds 6

846 F. Supp. 294 (S.D.N.Y. 1994), aff’d in part,

rev'd in part, dismissed in part, 67 F.3d 412

CEN Sia RY siven tcidacarmisadisdaknipesveresembeagisineen 7, 8

OF Fee Se Ce Be oa docctsininearirpsncrassanennaccrs passim

Louisiana v. United States, 380 U.S. 145 (1965) .. 12

Milliken v. Bradley, 433 U.S. 267 (1977) .............. 1]

Pennsylvania v. West Virginia, 262 U.S. 553

CRRA? ssccccnsauncivesecksshiercalvabvarinipmnriesbuaeataaactesevasoetins 14

Sherbert v. Verner, 374 U.S. 398 (1963) ............... 16

Swift & Co. v. United States, 276 U.S. 311

CRIP iss Goi eaicedephccubadabatacioves snestucipcleasasnsabeeenennibns 14

Town of Huntington v. Huntington Branch,

RAGE 5 OR UB SUR packassicccaicsamsenincécsiome 13

United States v. City of Parma, 661 F.2d 562

(6th Cir. 1981), cert. denied, 456 U.S. 926 (1982) . 13

United States v. Village of Airmont, 839 F. Supp.

1054 (S.D.N.Y. 1993), rev’d, 67 F.3d 412 (2d Cir.

PEE iia ncccipubiskachiscasscuanacebaeed aaeaueci ates eabomal bin 6, 7

Village of.Airmont v. LeBlanc-Sternberg, cert.

Bate, £26 BS, CG, Bees CR ishivksecenctsiasssaincseonns 9

Wisconsin v. Yoder, 406 U.S. 205 (1972) .............. 16

V

Constitution, statutes and rule: Page

U.S. Const.:

UIE OD Sctnccsiecvavihiaatek pig fagstteckichbesnais 4, 6, 8, 9, 15, 18

RP RA. Ok Aissad cas ctebasieestidinesedinwckaceiseanes 16

Fair Housing Act, 42 U.S.C. 3601 et seq. .............0+ 4

Ge Ris IE ehcdapcsicialamasmeneanadiaeers 4

Religious Freedom Restoration Act of 1993,

ER, Oe Oe OO niccccsciienseninniietes 16

Bp Stes AI seitidnceic tiencisshedh classtuuys dekicbiantaaievaietenatel 9

ee Re SUT Voticladertishcksides steko musamreseied i)

ag RR RAR AG. SER eaten eee ee ieee easement ]

In the Supreme Court of the Gnited States

OCTOBER TERM, 1996

No. 96-1397

VILLAGE OF AIRMONT, PETITIONER

v.

YITZCHOK LEBLANC-STERNBERG, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals affirming the

district court’s entry of injunctive relief (App., infra,

la-10a) is unpublished, but the decision is noted at 104

F.3d 355 (Table).' The earlier opinion of the court of

appeals reversing the district court’s original dis-

missal of the case and denial of injunctive relief is

reported at 67 F.3d 412. The opinion of the district

court on remand (App., infra, 1la-29a) is reported at

' Because the court of appeals’ opinion as reproduced in

the appendix to the petition (Pet. App. la-lla) contains typo-

graphical errors that omit several lines of the opinion, that

opinion is included in the appendix to this brief in opposition.

(1)

2

922 F. Supp. 959," and its order entering injunctive

relief on remand (Pet. App. 12a-16a) is reported at 925

F. Supp. 160. The district court’s supplemental order

(Pet. App. 17a-18a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered

on December 6, 1996. The petition for a writ of certio-

rari was filed on March 4, 1997. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. a. This litigation arose out of the incorporation

of the Village of Airmont, New York, in 1991. Prior

to incorporation, the Airmont community was an un-

incorporated area of the Town of Ramapo, New York.

During the 1980s, the number of Orthodox Jews

(including Hasidic Jews, a subgroup of Orthodox

Jewry) residing in Ramapo increased dramatically.

LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 417 (2d

Cir. 1995). In the mid-1980s, Ramapo accommodated

the needs of Orthodox Jews for a place of worship near

their homes by relying on a provision of its zoning

code regarding “home professional office[s],” which

permitted members of certain “learned professions,”

including clergy, to operate offices within their

homes, subject to certain restrictions. Jd. at 418.’

* Because the appendix to the petition does not include the

opinion of the district court, that opinion is included in the

appendix to this brief in opposition.

3% Orthodox Jews cannot travel substantial distances to a

place of worship for services or prayer because the tenets

of Orthodox Judaism do not permit adherents to travel by auto-

mobile or other mechanical means of transportation on the

Sabbath or on certain religious holidays. LeBlanc-Sternberg, 67

F.3d at 417. Strict observance by Orthodox Jews requires daily

3

Ramapo interpreted the zoning code provision to per-

mit rabbis to conduct worship services in their

homes, subject to limitations on the number of per-

sons who could gather at any given time. /bid.

In the Airmont area of Ramapo, a group of residents

formed the Airmont Civic Association (ACA) and

began efforts to incorporate Airmont as a village

“because some of its members felt that the Town

of Ramapo was adopting zoning measures unduly

favorable to Hasidic Jews.” App., infra, 13a. As an

incorporated village, separate from Ramapo, Airmont

would be able to have its own zoning code. LeBlanc-

Sternberg, 67 F.3d at 418. The ACA sought incor-

poration as a village with the expressed intent of

keeping Orthodox and Hasidic Jews out of the Air-

mont community. /d. at 418-419. A referendum on

incorporation of Airmont was held on January 30,

1989, and the vote was in favor of incorporation by a

margin of 3 to 1. Id. at 419.4

ACA members went before the Ramapo Plan-

ning Board to oppose respondent Rabbi LeBlanc-

Sternberg’s application to conduct worship services

in his home. In the course of doing so, they expressed

anti-Orthodox sentiments and stated that Orthodox

worship, and certain prayers may be said only if a “minyan,”

i.e., a group of ten males at or above the age of thirteen, is

present. /bid. As a consequence, it is important for Orthodox

Jews to live within walking distance of a place where they can

congregate for worship. Jbid.

* Formal incorporation was delayed, however, by litigation

in state court challenging the manner in which the referendum

was conducted. Meanwhile, the ACA continued to oppose ac-

tions by the Town of Ramapo to approve zoning variances that

would allow Orthodox Jewish houses of worship. LeBlanc-

Ster..berg, 67 F.3d at 419.

ig

Jews should not have moved into the area, since they

knew when they did so that there were no houses of

worship. LeBlanc-Sternberg, 67 F.3d at 420. Ramapo

initially denied the application, then twice approved it,

but the ACA financed two successful state court

challenges to the approvals. bid. Ramapo approved

the application for a third time, including certain

restrictions on the number of congregants and re-

stricting the home worship to Jewish holidays and the

Sabbath. Jbid. By then, the Village of Airmont was

incorporated, and it decided not to pursue a third state

court challenge. A village trustee and former ACA

board member stated that the Village did not need to

pursue another state court challenge since “there are

other ways we can harass them.” [bid.

b. The Village of Airmont was formally incor-

porated on April 10, 1991. LeBlanc-Sternberg, 67 F.3d

at 419. On April 12, 1991, the private respondents, a

group of Orthodox Jewish residents of the Village

of Airmont including Rabbi LeBlanc-Sternberg, filed

a complaint in the United States District Court

for the Southern District of New York against

the Village, the ACA, Ramapo and several leaders of

the incorporation movement, claiming that the in-

corporation of the Village had been undertaken for

the purpose of excluding Orthodox Jews, in violation

of various federal laws, including the Fair Housing

Act (FHA), 42 U.S.C. 3601 et seqg., and the First

Amendment. They sought damages and injunctive

relief, and moved to enjoin preliminarily the election

of the Village mayor and board of trustees that was

scheduled for May 16, 1991. LeBlanc-Sternberg, 67

F.3d at 419. The district court denied an injunction

on the ground that respondents had failed to establish

irreparable harm. LeBlanc-Sternberg v. Fletcher, 763

5

F. Supp. 1246, 1250-1252 (S.D.N.Y. 1991). Shuertly

thereafter, the ACA’s slate of candidates was elected

and took office as the Village Mayor and the members

of its Board of Trustees. LeBlanc-Sternberg, 67 F.3d

at 419. :

ce. On December 17, 1991, the United States filed

suit against the ACA, the Village, and the Village

trustees in their official capacities, alleging that the

incorporation of Airmont had been accomplished “for

the purpose of excluding Orthodox Jews” from the

Village by, inter alia, imposing burdensome zoning

and other restrictions upon Orthodox Jewish places of

worship in the Village, in violation of the FHA. The

United States sought declaratory and injunctive

relief. LeBlanc-Sternberg, 67 F.3d at 419.

In January, 1993, the Village of Airmont adopted its

own zoning code. LeBlanc-Sternberg, 67 F.3d at 420.

The code contained several modifications of the “home

professional office” provision of the Ramapo zoning

code and stated the Village’s intention that the pro-

vision “not generate activities that come into a

residential area so as to detract from the residential

character of the area.” Ibid. The Village appointed a

board of appeals and a planning board to interpret and

apply the code and appointed, as one of the board

members, an ACA member who had stated that most

persons were opposed to home houses of worship and

who had participated in the surveillance of Orthodox

Jewish homes at prayer time. Jd. at 421. The mayor

and three of the four trustees who adopted the zoning

code all “testified at trial that they were opposed

to the Ramapo-type interpretation of the [home pro-

fessional office] provision to allow worship services in

the homes of clergy.” Jbid. Respondents contended

that, in light of the circumstances surrounding the

adoption of the zoning provision, the interpretation it

would be given was a foregone conclusion. See ibid.

d. The two lawsuits were consolidated and pro-

ceeded to trial.° The damages claims by the private

respondents were tried to a jury; the government’s

suit was tried to the court. LeBlanc-Sternberg, 67

F.3d at 419.°. On December 13, 1993, after seven

weeks of trial and a week of deliberations, the jury

returned a verdict against the Village, finding that

it had violated private respondents’ rights under

the FHA and had conspired to violate their rights

under the First Amendment. /d. at 421-422. The

jury awarded no damages. /d. at 422. In addition, the

jury returned a verdict in favor of the individual

defendants. /bid.

Two days after the jury verdict, the district court

dismissed the government’s suit. LeBlanc-Sternberg,

67 F.3d at 422; United States v. Village of Airmont,

839 F. Supp. 1054 (S.D.N.Y. 1993). The court found

that there was no basis for injunctive relief because

the Village of Airmont had not taken any actions that

violated the rights of Orthodox Jews in that, since

incorporation, it only had enacted the zoning code

and had not interpreted it. The court stated that,

although the differences between the Airmont code

and the Ramapo code “arguably could be taken as

* On December 24, 1991, the district court had denied a

motion to dismiss the private suit, rejecting, inter alia, the

challenge to the private respondents’ standing, to the justi-

ciability of their claims, and to their statement of a cause of

action. LeBlanc-Sternberg v. Fletcher, 781 F. Supp. 261

(S.D.N.Y. 1991).

6 Claims against some original defendants were settled or

dismissed prior to trial, and a default judgment was entered

against the ACA. LeBlanc-Sternberg, 67 F.3d at 421.

a signal for a different interpretation,” the Village

“might not” interpret its code to prevent the use of

home houses of worship by Orthodox and Hasidic

rabbis for worship services. LeBlanc-Sternberg, 67

F.3d at 422; Airmont, 839 F. Supp. at 1063-1064.

The court dismissed the case notwithstanding its

acknowledgment that, “[v]iewing the evidence in the

light most favorable to the Government, we can

foresee that the {jAirmont] Planning Board and the

Zoning Board of Appeals (to the extent the matter

might be submitted to it) will not adopt the Ramapo

interpretation of the home professional office excep-

tion.” Airmont, 839 F. Supp. at 1064. The court also

recognized that the absence of actions against the

Orthodox and Hasidic Jews in Airmont by the Village

or the trustees since the incorporation of the Village

could have been caused by the pendency of the instant

litigation. Ibid. The court concluded that, “if there

is any action taken in the future which violates

their rights, the United States Government and other

plaintiffs will not be timorous about suing. Conse-

quently, we see no basis or need for injunctive relief.”

Ibid. The court believed that injunctive relief, as

requested by the United States, to prohibit peti-

tioners from denying persons their constitutional

rights was “unnecessary since it would be enjoining

acts which are already illegal.” Jd. at 1065.

The district court also denied private respondents

any injunctive relief. LeBlanc-Sternberg, 67 F.3d at

423. In addition, three months after trial, on March

16, 1994, the district court granted petitioner’s mo-

tion for judgment as a matter of law under Federal

Rule of Civil Procedure 50(b). LeBlanc-Sternberg v.

Fletcher, 846 F. Supp. 294 (S.D.N.Y. 1994). The court

found the jury verdict to be inconsistent because the

jury had found that the Village of Airmont had

violated the FHA and conspired to violate the con-

stitutional rights of certain individuals to engage

in the free exercise of religion and speech, but had

not awarded any damages. /d. at 295. The court

incorporated in its findings the facts it had found and

the reasoning set forth in its decision dismissing the

government’s suit. Jbid. The court also rejected

the argument that petitioner’s actions had a chilling

effect on the respondents’ First Amendment rights

and concluded that, because the private respondents

already had their zoning permits, the worst situation

they would face, if the Airmont code were to be

interpreted differently from the Ramapo code, would

be as a non-conforming use. /d. at 296.

2. The court of appeals reversed the dismissal of

the claims against petitioner, the Village. LeBlanc-

Sternberg v. Fletcher, 67 F.3d 412 (2d Cir. 1995). The

court remanded for an award of nominal damages

and injunctive relief in the private suit and for de-

claratory and injunctive relief in the United States’

action. Id. at 435.

The court held that “the evidence was sufficient

to establish that Airmont violated the private [re-

spondents’] rights under the Fair Housing Act and

the First Amendment; that the district court was

not entitled to set aside the jury’s verdict against the

Village on those claims on the basis of the court’s

own findings in the government’s action; that in light

of the established violation of their rights, the private

The court affirmed the judgment dismissing the private

respondents’ suit against the individual defendants and dis-

missed the cross-appeal of two of the individual defendants as

moot. LeBlanc-Sternberg, 67 F.3d at 432-433, 435.

[respondents] were entitled to an award of nominal

damages; that the jury’s verdict against the Village

constituted collateral estoppel that required the

court to find that the government had established a

violation by the Village; and that in ruling that

injunctive relief was not appropriate, the court failed

to apply pertinent [Fair Housing Act] principles.”

LeBlanc-Sternberg, 67 F.3d at 424. The court found

that, when viewed in the light most favorable to the

private respondents, “there was ample support for

the jury’s implicit finding that Airmont’s zoning code

would be interpreted to restrict the use of home

synagogues, that the motivation behind the enact-

ment was discriminatory animus toward Orthodox

and Hasidic Jews, and that Airmont pursued this goal

jointly with ACA.” Jd. at 431. Accordingly, private

respondents had established the Village of Airmont’s

liability on their claims under the FHA, the First

Amendment, and 42 U.S.C. 1983 and 1985(3), entitling

them to nominal damages. 67 F.3d at 429-431. The

court ordered the district court to consider whether

injunctive relief in favor of private respondents was

appropriate in light of the jury’s verdict. Jd. at 432.

The court of appeals held that the United States

was entitled to a declaratory judgment on its FHA

claim. LeBlanc-Sternberg, 67 F.3d at 433-435. In

addition, the court held that the United States was

entitled to an injunction “prohibiting the application

of the Airmont zoning code in the discriminatory

manner found to be predictable from the evidence in

this record.” Id. at 434.

3. On June 24, 1996, the Court denied a petition for

a writ of certiorari to review the court of appeals’

decision. Village of Airmont v. LeBlanc-Sternberg,

116 8. Ct. 2546.

10

4. On remand, the district court entered injunctive

relief against the Village in both cases, awarded the

private respondents nominal damages, and entered a

declaratory judgment. App., infra, 20a-25a, 27a-28a;

Pet. App. 12a. The court also entered an injunction

forbidding “the Village and its officers, employees,

agents, successors, and assigns from promoting reli-

gious discrimination; from denying equal opportunity

to religion by use, interpretation, or enforcement

of the zoning code in such a manner that it prevents

home worship; from discriminating because of reli-

gion or interfering with the free exercise of religion

in connection with housing; and from taking any

action that limits the availability of housing on the

basis of religion.” App., infra, 23a-24a; Pet. App. 12a-

13a. Specifically, the court directed that the Airmont

zoning code be revised “so that it will not be con-

strued to prevent home worship, or to prevent persons

from walking to and from religious services at such

places of worship, or to prevent home worship ser-

vices on any day in all residential zones.” App., infra,

24a. The court ordered certain other conforming

revisions to the code. Jbid.; Pet. App. 13a-15a. In

addition, the court ordered that, for a period of five

years, the Village must maintain and make available

to the United States all applications for residential

houses of worship and records indicating the dis-

position of each such application; it must provide

opposing counsel with advance notice of all Village

planning board and zoning board meetings in which

any application relating to religious worship will

be considered; and it must notify government counsel

of any proposed changes in the Village’s zoning

EE

11

ordinances relating to religious worship. Pet. App.

La-18a."

5. The court of appeals affirmed. App., infra, la-

10a. It ruled that the district court’s exercise of

injunctive relief passed muster under Milliken v.

Bradley, 433 U.S. 267, 280-282 (1977), in that the

remedy (1) was commensurate to the Village’s “egre-

gious constitutional violation” (7.¢., “passing a zoning

code based on religious animus”) and to the predict-

ability of further constitutional violations by future

discriminatory enforcement of the code, because the

remedy “cured the past constitutional violation and

obviated the threat of future constitutional viola-

tions” (App., infra, 7a-8a); (2) was remedial in nature

because the injunction “ensured that rights to free

exercise of religion were unencumbered, and the

constant threat of limitation of those rights was

lifted” (id. at 9a); and (3) was not overly intrusive on

local authority because “there was no indication that

the Village was going to make the changes necessary

to guarantee that no constitutional violations oc-

curred in the future” (an occurrence that the court of

appeals had ruled was “likely”) and the injunction

“was necessary to ensure that the Village complied

with the mandate of the FHA” (id. at 10a).

ARGUMENT

1. Petitioner contends (Pet. 5-8) that the court of

appeals disregarded constitutional precedent that the

federal government is a government of limited powers

and that the court erred by permitting intervention

8 The district court denied the request by private respon-

dents that it dissolve the Village. App., infra, 25a-27a.

12

into the uniquely local issue of zoning, a matter

which is better left to local governments.

The court of appeals correctly upheld the injunctive

relief ordered by the district court. As the court of

appeals noted, a district court has “not merely the |

power but the duty to render a decree which will so

far as possible eliminate the discriminatory effects

of the past as well as bar like discrimination in

the future.” App., infra, 7a (quoting Lowisiana v.

United States, 380 U.S. 145, 154 (1965)). In the

instant case, the jury had implicitly found that the

Airmont zoning code was motivated by discriminatory

animus against Orthodox and Hasidic Jews and that it

would be interpreted to restrict the use of home

synagogues, “thereby deterring Orthodox Jews from

purchasing homes in many Airmont neighborhoods.”

LeBlanc-Sternberg, 67 F.3d at 429; see also id. at 428,

431. Thus, the district court correctly fashioned

“a remedy that both cured the past constitutional

violation and obviated the threat of future consti-

tutional violations.” App., infra, 8a.

Ordinarily, local governments enjoy considerable

discretion in making land-use decisions. Where,

however, a municipality’s zoning code was enacted

in violation of federal constitutional or statutory

requirements, as the court of appeals found was the

case here, the municipality is not immune from the

remedial power of a federal court. And where, as

here, the violation includes the threat of future ap-

plication of the invidiously adopted zoning code in a

discriminatory manner, the court’s authority permits

it to order revisions that will prevent it from being

so construed and applied. As the court of appeals

recognized (App., infra, 10a), “the Village’s history

and its disregard of this Court’s clear holding that it

—————————————

13

was in violation of the FHA” gave no indication that

it would make the changes necessary to ensure

compliance with federal law. In similar circum-

stances, federal courts have affirmed district court

orders striking down and revising municipal legisla-

tion where necessary to cure a constitutional vio-

lation and to ensure against future violations. See id.

at 7a (citing United States v. City of Parma, 661 F.2d

562, 578 (6th Cir. 1981), cert. denied, 456 U.S. 926

(1982); Huntington Branch, NAACP v. Town of

Huntington, 844 F.2d 926 (2d Cir.), aff’d, 488 U.S. 15

(1988) (per curiam)). Indeed, in Huntington, where

the town was found to have violated the FHA, this

Court affirmed a court of appeals’ judgment that

directed the town to strike from its zoning code “the

restriction of private multifamily housing projects to

the urban renewa! area and ordered the town to

rezone the project site to R-3M.” 488 U.S. at 18.

See also Buchanan v. Warley, 245 U.S. 60 (1917)

(invalidating a city ordinance barring persons be-

cause of their race from acquiring real property in a

residential area). Here, the district court took a less

drastic approach by ordering revision of the zoning

code.

2. Petitioner contends (Pet. 9-13) that the injunc-

tive relief exceeded the court’s remedial authority

because there had been no injury to the private

respondents’ right to pray.

Petitioner’s argument constitutes, in essence,

a reprise of one of the arguments presented in

its earlier unsuccessful petition for a writ of certio-

rari in this case. Compare Pet. 9 (respondents have

“sustained no wrong that could be remedied by

an injunction”) with Pet. at 10-19 in Village of

Airmont v. LeBlanc-Sternberg, cert. denied, 116

14

S. Ct. 2546 (1996) (No. 95-1381) (arguing that no ripe

controversy between the United States and the

Village existed because there was no past or potential

future injury).

The injunctive relief entered in this case was

authorized under the _ well-established principle

that a plaintiff need not “await the consummation

of threatened injury to obtain preventive relief.”

Pennsylvania v. West Virginia, 262 U.S. 553, 593

(1923). As the court of appeals recognized (LeBlanc-

Sternberg, 67 F.3d at 425), the FHA provides standing

to a person who believes he “will be injured by a

discriminatory housing practice that is about to

occur.” 42 U.S.C. 3602(i)(2). That provision is prem-

ised on the long-standing doctrine that “a suit for an

injunction deals primarily, not with past violations,

but with threatened future ones; * * * an injunction

may issue to prevent future wrong, although no right

has yet been violated.” Swift & Co. v. United States,

276 U.S. 311, 326 (1928); accord Farmer v. Brennan,

511 U.S. 825, 845 (1994).

The trial evidence demonstrated the necessity for

judicial intervention in this case. The court of

appeals had held that the Village had violated the

FHA “by passing a zoning code based on religious

animus.” App., ixfra, 7a. It also expressly had

found that it was “‘predictable from the evidence

in this record’ that the Village would violate the

Constitution by enforcing the code in the future in |

a discriminatory manner.” /d. at 7a-8a. (quoting

LeBlanc-Sternberg, 67 F.3d at 434). The incor- :

poration of the Village of Airmont, for the expressed

purpose of enacting a zoning code to exclude Orthodox

Jews’ home houses of worship, and the enactment of

the Airmont zoning ordinance itself, were designed to

ee

a ia aa te ea aaa

15

chill the exercise of both First Amendment and FHA

rights. As has been often recognized, a “loss of First

Amendment freedoms, for even minimal periods of

time, unquestionably constitutes irreparable injury.”

Elrod v. Burns, 427 U.S. 347, 373 (1976) (opinion of

Brennan, J.).

3. Petitioner contends (Pet. 13-17) that there is

a conflict among the courts of appeals on the question

whether the First Amendment requires an accom-

modation for religious worship that is burdened by

local zoning decisions. Petitioner’s argument is

virtually identical to one of the arguments advanced

in its earlier unsuccessful petition for a writ of

certiorari in this case. Compare Pet. 13-17 with Pet.

at 6-10 in Village of Airmont v. LeBlanc-Sternberg,

cert. denied, 116 S. Ct. 2546 (1996) (No. 95-1381).

Neither of the cases cited by petitioners (Pet. 13-

16) as purportedly in conflict with the decision below,

i.e., Lakewood, Ohio Congregation of Jehovah's Wit-

nesses, Inc. v. City of Lakewood, 699 F.2d 303 (6th

Cir.), cert. denied, 464 U.S. 815 (1983), and Grosz

v. City of Miami Beach, 721 F.2d 729 (11th Cir.

1983), cert. denied, 469 U.S. 827 (1984), involved

allegations—let alone, as here, findings—of inten-

tional discrimination. The plaintiffs there did not

claim that the zoning laws were intended to impede

the practice of religion. Both of those cases involved

application of neutral laws of general applicability

which, under Employment Div., Dep’t of Human

Resources v. Smith, 494 U.S. 872 (1990), “need not be

justified by a compelling governmental interest even

if the law has the incidental effect of burdening a

particular religious practice.” Church of Lukumi

16

Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520

(1993).”

Lakewood involved a zoning ordinance that pro-

hibited the building of a church in a residential

neighborhood. As applied to the Congregation of

Jehovah’s Witnesses, the ordinance resulted in the

Congregation’s not being able to build a new church

on a lot that it owned. That location had “no religious

or ritualistic significance” to the plaintiffs and the

zoning ordinance did “not prevent the Congregation

from practicing its faith” elsewhere. Lakewood,

699 F.2d at 306-307. The court emphasized that the

ordinance did not have the purpose or effect of pro-

hibiting the Jehovah’s Witnesses or any other faith

from practicing its religion. Jbid. The ordinance

“simply regulate[d] a secular activity and, as applied

to the [Congregation], operate[d] so as to make the

practice of their religious beliefs more expensive.”

Id. at 307 (quoting Braunfeld v. Brown, 366 U.S.

599, 605 (1961) (opinion of Warren, C.J.) (emphasis

omitted). The court in Lakewood contrasted the

situation there from that in Keego Harbor Company

* This case does not involve a claim under the Religious

Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. 2000bb et

seq., which was enacted in response to this Court’s decision in

Smith. RFRA restores the compelling interest test, as set

forth in Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin

v. Yoder, 406 U.S. 205 (1972), for claims involving govern-

mental action that substantially burdens a person’s exercise of

religion, even if the burden results from a neutral rule of

general applicability. Therefore, there is no reason to hold this

petition pending the disposition of City of Boerne v. Flores,

No. 95-2074 (argued Feb. 19, 1997), which presents the question

whether RFRA is a constitutional exercise of Congress’s

legislative authority under Section 5 of the Fourteenth

Amendment.

2

17

v. City of Keego Harbor, 657 F.2d 94 (6th Cir. 1981), in

which a zoning ordinance had been declared un-

constitutional because “its purpose and effect were to

eliminate from the city the exercise of a first amend-

ment right.” Lakewood, 699 F.2d at 307.

Similarly, in Grosz, there was no contention that

the zoning laws at issue were “based upon disagree-

ment with religious tenets or practices, or [were]

aimed at impeding religion,” 721 F.2d at 733, and it

was uncontroverted that “the law has both secular

purpose and effect,” id. at 738. There was no religious

necessity that the religious services at issue in that

case be held in the particular location at issue; the

Eleventh Circuit found that the home of the rabbi in

which the religious services were conducted was

within four blocks of a district in which publicly

attended religious services were allowed, and that

such services were allowed in one-half of the city’s

territory. Jd. at 731, 739.

More recently, the Eleventh Circuit in First

Assembly of God of Naples, Florida, Inc. v. Collier

County, 20 F.3d 419, modified on other grounds on

denial of rehearing, 27 F.3d 526 (1994), cert. denied,

513 U.S. 1080 (1995), noted the special analysis that is

required when a zoning ordinance singles out a par-

ticular religious practice for unfavorable treatment.

The court contrasted the situation in Grosz from

that in Lukumi Babalu Aye, where the local law

was held to violate the Free Exercise Clause because

it “target[ed] the use of animal sacrifice for reli-

gious purposes.” Jd. at 423. In both Grosz and First

Assembly of God, the challenged enactments were

found to be of general applicability and not motivated

by hostility toward religion, so that the compel-

18

ling interest analysis applied in Lukwmi was not

applicable. Id. at 424.”

Unlike Lakewood and Grosz, the instant case in-

volves purposeful discrimination based upon religion.

The Village of Airmont was incorporated for the pur-

pose of deterring Orthodox Jews from residing in

Airmont in violation of the FHA, and it conspired

to impede the private respondents’ exercise of their

First Amendment free exercise rights. LeBlanc-

Sternberg, 67 F.3d at 429, 431. The court of appeals’

decision in this case is consistent with the only de-

cision cited by petitioner (Pet. 16) that involved pur-

poseful discrimination against a particular religious

group, 7.e., Islamic Center of Mississippi, Inc. v. City

of Starkville, 840 F.2d 293 (5th Cir. 1988). In Islamic

Center, the court concluded that the city “favored

Christian churches over Muslim mosques” by grant-

ing exemptions from its zoning ordinance for every

Christian denomination that had applied, and denying

an exemption only to the Islamic group. /d. at 294,

297, 302-303. There also was evidence that the ad-

herents of the particular religious faith needed a

place to worship near their homes because travel by

automobile was unavailable, as well as evidence that

the governmental entity applied a stricter standard to

the needs of non-Christian religious organizations.

Ibid.

10 In an amendment to its decision, added in the course of

denying a petition for rehearing and suggestion of rehearing en

banc, the First Assembly of God court noted that RFRA might

be applicable to the claims in that case. It declined to address

that issue, however, because it had not been raised by either

party. First Assembly of God of Naples, Florida, Inc. v.

Collier County, 27 F.3d 526 (11th Cir. 1994), cert. denied, 513

U.S. 1080 (1995). See note 9, supra.

a |

19

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WALTER DELLINGER

Acting Solicitor General

ISABELLE KATZ PINZLER

Acting Assistant Attorney

General

JESSICA DUNSAY SILVER

MARIE K. MCELDERRY

Attorneys

MAY 1997

APPENDIX A

[UNPUBLISHED]

(Notice: This Summary Order may not be cited as

precedential authority, but may be called to the

attention of the Court in a subsequent stage of this

case, or in any case for purposes of collateral estoppel

or res judicata. See Second Circuit Rule 0.23]

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 96-6149

RapBi YITZCHOK LEBLANC-STERNBERG,

CHANIE LEBLANC-STERNBERG, FRED WALFISH,

LEwis KAMMAN, PARK AVENUE SYNAGOGUE, INC.,

PLAINTIFFS-APPELLEES

Vv.

ROBERT FLETCHER, NICK VERTULLO, RAYMOND KANE,

MAUREEN KENDRICK, JOHN C. LAYNE, INDIVIDUALLY

AND IN THEIR CAPACITIES AS TRUSTEES OF THE

VILLAGE OF AIRMONT AND AS OFFICERS AND BOARD

MEMBERS OF THE AIRMONT CIVIC ASSOC., AND THE

VILLAGE OF AIRMONT, DEFENDANTS-APPELLANTS

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

v.

THE VILLAGE OF AIRMONT, AIRMONT CIVIC

ASSOCIATION, RALPH BRACCO, IN HIS CAPACITY AS

MAYOR OF THE VILLAGE OF AIRMONT, JOHN C. LAYNE,

RAYMOND KANE, CHARLES CALOTTA, AND RONALD

SABO, IN THEIR CAPACITIES AS TRUSTEES OF THE

VILLAGE OF AIRMONT, DEFENDANTS-APPELLANTS

(la)

2a

Appeal from the United States District Court for

the Southern District of New York (Goettel, J.)

[Filed: Dec. 6, 1996]

Present: OAKES, McLAUGHLIN and CABRANES,

Circuit Judges.

This cause came on to be heard on the transcript of

record from the United States District Court for the

Southern District of New York and was argued.

ON CONSIDERATION WHEREOFP, it is hereby

ordered, adjudged, and decreed that the judgment of

the district court be and it hereby is AFFIRMED.

The Government filed an action under the Fair

Housing Act, 42 U.S.C. § 3601 et seq. (“FHA”), in

1991, against the Village of Airmont (“Village”),

alleging that the Village was formed for the purpose

of excluding Orthodox Jews by, among other things,

imposing restrictions on Jewish forms of residential

worship. Specifically, the Airmont Civic Association

(“ACA”), an organization whose purpose was the

incorporation of the Village, was to enact a zoning

ordinance completely preventing worship in homes—a

primary method of Orthodox Jewish worship. At

roughly the same time, a private group of rabbis

initiated an action, which was consolidated with the

government case for discovery and trial. The private

action was before a jury, while the government action

was tried to the court.

After an eight week trial, a jury found that the

Village had violated the plaintiffs’ rights under the

3a

FHA and the First Amendment. The district court

(Goettel, J.) (S.D.N.Y.) then dismissed the govern-

ment action, reasoning that because the Village had

only passed the zoning regulations, but had not

applied the regulations, there had not yet been a

violation of the FHA. The district court refused to

order injunctive relief because: (1) it would be enjoin-

ing acts which were already illegal; and (2) “if there is

any action taken in the future which violates [the

Orthodox Jews’] rights, the United States Gov-

ernment .. . will not be timorous about suing.”

United States v. Village of Airmont, 839 F. Supp.

1054, 1064-65 (S.D.N.Y.1993) (Airmont JD, rev’d and

remanded, 67 F.3d 412 (2d Cir.1995), cert. denied, 116

S.Ct. 2546 (1996). The district court then granted the

Village’s motion for judgment as a matter of law in

the private action, and set aside the jury verdict.

In September, 1995, this Court reversed, see

LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 431 (2d

Cir.1995) (Airmont ID, cert. denied, 116 S.Ct. 2546

(1996), reasoning that the evidence supported the

jury’s determination that the Village had violated the

FHA. This Court held that there was evidence that

the events leading to the incorporation of the town

and the implementation of its zoning code “amply

support a finding that the impetus was not a legiti-

mate nondiscriminatory reason but rather an animos-

ity toward Orthodox Jews as a group.” Airmont II, 67

F.3d at 431. The court also held that there was

support for the jury’s finding that the motivation

behind the enactment of the zoning regulations was

anti-Semitism, and its “implicit finding that Air-

mont’s zoning code would be interpreted to restrict

the use of home synagogues.” Jd. (emphasis supplied).

4a

This Court held that the district court erred in

concluding that injunctive relief was not proper,

because the FHA explicitly provides that courts

enter injunctive relief against parties who have vio-

lated the FHA “‘as is necessary to assure the full

enjoyment of the rights granted by the [FHA].’”

Airmont II, 67 F.3d at 484. This Court held that

“(t]he view that such relief was premature because

Airmont had not yet actually applied its zoning

provision invidiously was a misapplication of the

[FHA].” Id. at 434-35. The Court then directed on

remand, that the district court “fashion appropriate

equitable remedies.” Jd.

On remand, Judge Goettel ordered:

. A prohibitory injunction, enjoining the Village

from: (1) promoting religious discrimination; (2)

denying equal protection to religions by use, in-

terpretation, or enforcement of the zoning code;

and (3) discriminating in housing based on reli-

gion, or interfering with the exercise of religion

through housing.

. A mandatory injunction, requiring the Village to

revise its zoning code so that it could not be

construed to prevent home worship, or to prevent

persons from walking to and from places of reli-

gious worship. The court specifically called for an

addition to the zoning code entitled “Residential

Place of Worship.” Such places were defined as

“area[s] located within a residence that is used for

the conducting of religious services.” The order

provided that such places “will be permitted by

right on any day in all residential zones.”

5a

. , The retention of documents and notification pro-

visions. The Village was ordered to keep all docu-

ments related to zoning decisions, notify the gov-

ernment of any such decisions, or of any meetings

of planning or zoning boards at which applications

touching on religious worship will be presented.

LeBlanc-Sternberg v. Fletcher, 922 F.Supp. 959, 964-

65 n. 15 (S.D.N.Y.1996) (Airmont ITI).

We review a district court’s award of equitable and

injunctive relief for abuse of discretion or a clear

error of law. See EEOC v. Johnson & Higgins, Inc.,

91 F.3d 1529, 1542 (2d Cir.1996).

The Village argues that the mandatory injunction

conflicts with Milliken v. Bradley, 433 U.S. 267

(1977) in three respects: (1) the injunction is dispro-

portionate because there is “no existing violation by

[the Village];” rather “it was what the Village of

Airmont will ‘predictably’ do that the Second Circuit

found improper in its appellate crystal ball;” (2) the

injunction is not remedial; and (3) the district court

usurped the role of the local government by creating a

new set of zoning regulations, thereby violating

well-settled principles of federalism. The Village is

wrong.

In Milliken v. Bradley, 483 U.S. 267, 280-281 (1977),

the Supreme Court noted that a federal court exercis-

ing 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 (8) the federal courts must respect

6a

the role of state and local authorities in the manage- ;

ment of their affairs.

Though by no means unlimited, the power of the

federal courts to remedy constitutional violations is

broad and flexible. See United States v. Yonkers Bad. |

of Educ., 837 F.2d 1181, 1235 (2d Cir.1987). In general, ,

the power to intrude into municipal functions should |

be exercised only where there has been a constitu-

tional violation. Jd. The court should tailor its rem-

edy to fit the nature and extent of the violation. See

Milliken v. Bradley, 418 U.S. 717, 738 (1974); Swann

v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16

(1971). “The Supreme Court has not required that

the ‘least restrictive means of implementation’ be

adopted but has ‘recognized that the choice of reme-

dies to redress racial discrimination is ‘a balancing

process left, within appropriate constitutional or

statutory limits, to the sound discretion of the trial

court.’” Yonkers, 837 F.2d at 1236 (quoting United

States v. Paradise, 480 U.S. 149, 184 (1987) (quoting

Fullilove v. Klutznick, 448 U.S. 448, 508 (1980)

(Powell, J., concurring) (quoting Franks v. Bowman

Transp. Co., 424 U.S. 747, 794 (1976) (Powell, J., con-

curring in part and dissenting in part)))). The

district court has “first-hand experience with the

parties and is best qualified to deal with the ‘flinty,

intractable realities of day-to-day implementation of

constitutional commands,” and must be given great

flexibility and broad discretion in choosing a remedy

best suited to curing the violation. Paradise, 480

U.S. at 184 (quoting Swann, 402 U.S. at 6). In deter-

mining whether [an] order was “narrowly tailored,”

the court must “acknowledge the respect owed a Dis-

trict Judge’s judgment that specified relief is essen-

————

7a

tial to cure [a Constitutional] violation.” Yonkers,

837 F.2d at 1236 (quoting Lowisiana v. United States,

380 U.S. 145, 154 (1965)).

A district court has “‘not merely the power but the

duty to render a decree which will so far as possible

eliminate the discriminatory effects of the past as

well as bar like discrimination in the future.’” Id.;

see also Swann, 402 U.S. at 15 (scope of a district

court’s equitable powers to remedy past wrongs is

broad). Equitable relief under the FHA may “be

structured to achieve the twin goals of insuring that

the Act is not violated in the future and removing any

lingering effects of past discrimination.” Marable v.

Walker, 704 F.2d 1219, 1221 (11th Cir.1983). In the

past, this and other circuits have allowed federal

district courts to make changes to, and even strike

whole portions of, statutory codes to cure constitu-

tional violations by local municipalities and ensure

that the municipality did not violate the Constitution

in the future. See, eg., United States v. City of

Parma, 661 F.2d 562, 578 (6th Cir.1981), cert. denied,

456 U.S. 926 (1982). We have, ourselves, specifically

ordered the rezoning of a municipality to ensure

compliance with Constitutional mandates. See Hunt-

ington Branch, NAACP v. Town of Huntington, 844

F.2d 926, aff'd, 488 U.S. 15 (1988).

1. Commensurate Remedy. The Village asserts

that there was no existing violation of the FHA, and

that the only violations were those found in the

Second Circuit’s “crystal ball.” However, this court

previously held that the Village had violated the FHA

by passing a zoning code based on religious animus,

and found it “predictable from the evidence in this

record” that the Village would violate the Constitu-

8a

tion by enforcing the code in the future in a dis-

eriminatory manner. Airmont II, 67 F.3d at 434.

This was an egregious constitutional violation, call-

ing for a commensurate injunctive remedy. The

district court needed to fashion a remedy that both

cured the past constitutional violation and obviated

the threat of future constitutional violations. The

district court therefore issued a prohibitory injunc-

tion and a mandatory, forward-looking injunction.

The prohibitory injunction served to cure past

constitutional violations by forbidding a repetition of

the Village’s past discriminatory practices. Judge

Goettel was clearly within his discretion when he

ordered the Village to cease promoting religious dis-

crimination, denying equal opportunity to religions

by use, interpretation, or enforcement of the zoning

code in a way to prevent home worship, and from

discriminating in housing due to religion, or inter-

fering with the exercise of religion through housing.

Such actions are exactly those which the FHA

intended to curtail.

Judge Goettel was also clearly within his discretion

in ordering forward-looking, mandatory injunctive

relief against “likely” constitutional violations. The

affirmative injunction, requiring the Village to revise

its zoning ordinance so that it could not be construed

to prevent heme worship and to add provisions to

protect “Residential Place[s] of Worship,” was neces-

sary to ensure that the Village could not hinder or

prevent worship in homes. The amendments to the

zoning regulations require the Village to allow such

worship—an effective way of ensuring that the village

permits the use of residential dwellings for worship.

9a

2. Remedial in Nature. Judge Goettel ordered

mandatory injunctive relief grudgingly, arguing that

in doing so he was forced to ignore the Supreme

Court’s recent instruction that injunctive relief in

such cases be remedial in nature. Judge Goettel felt

that affirmative relief did not improve any rights

already exercised by Orthodox Jews in Airmont, but

“simply [was] insvrance that there can be no

chailenges to their exercise of religion in their homes

in the future,” and therefore was not truly “reme-

dial.” Airmont III, 922 F. Supp. at 964 n. 15. Gener-

ally, a remedial measure is one that places the parties

in a position they would have occupied but for the

constitutional violation. Missouri v. Jenkins, 115

S.Ct. 2038, 2048 (1995). However, that a measure is

prospective, because it deters future constitutional

violations, does not imply that it is not remedial. In

certain instances, prospective injunctions are essen-

tial to ensure compliance with constitutional and

Statutory mandates in the future. Cf. Alabama-

Tombigbee Rivers Coalition v. Department of In-

terior, 26 F.3d 1108, 1107 (11th Cir.1994),

Here, the injunction ensured that rights to free

exercise of religion were unencumbered, and the con-

stant threat of limitation of those rights was lifted.

This forward-looking aspect of the injunction only

requires that the Village do that which the FHA and

the Constitution already requires. See Marable, 704

F.2d at 1221 (FHA injunction may be structured to

ensure FHA not violated in future and to remove

effects of past discrimination). In that regard, it

placed the parties in a position which ensured that

their constitutional rights remained inviolate.

10a

3. Federalism. There is, of course, always a

federalism concern when the federal court steps in to

remedy some municipal problem. This court has

cautioned that federal courts should not encroach on a

state’s ability to remedy constitutional deficiencies,

should not use a “sledgehammer where a more deii-

cate instrument will suffice,” and should not “move

too quickly where it appears that the state ... will

in its own way adopt reforms bringing its system into

compliance with the Constitution.” Dean v. Cough-

lin, 804 F.2d 207, 213 (2d Cir.1986). Here, there was

no indication that the Village was going to make the

changes necessary to guarantee that no constitu-

tional violations occurred in the future. Indeed, this

Court ruled that future violations were “likely.”

Given the Village’s history and its disregard of this

Court’s clear holding that it was in violation of the

FHA, this injunction was necessary to ensure that

the Village complied with the mandates of the FHA.

We have considered all of the arguments raised by

the Village, and find them to be without merit.

Accordingly, the judgment of the district court is

AFFIRMED.

lla

APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

No. 91 Civ. 2550 (GLG)

RABBI YITZCHOK LEBLANC-STERNBERG,

CHANIE LEBLANC-STERNBERG, FRED WALFISH,

LEWIS KAMMAN, PARK AVENUE SYNAGOGUE, INC.,

PLAINTIFFS

v.

ROBERT FLETCHER & NICK VERTULLO, RAYMOND

KANE, MAUREEN KENDRICK, AND JOHN C. LAYNE,

INDIVIDUALLY AND IN THEIR CAPACITY AS TRUSTEES OF

THE VILLAGE OF AIRMONT. DEFENDANTS

No. 91 Civ. 8453 (GLG)

UNITED STATES OF AMERICA, PLAINTIFF

v.

THE VILLAGE OF AIRMONT, AIRMONT CIVIC

ASSOCIATION, RALPH BRACCO, IN HIS CAPACITY AS

MAYOR OF THE VILLAGE OF AIRMONT, JOHN C. LAYNE,

RAYMOND KANE, CHARLES CALOTTA, AND RONALD

SABO, IN THEIR CAPACITIES AS TRUSTEES OF THE

VILLAGE OF AIRMONT, DEFENDANTS

[Filed: Apr. 25, 1996]

12a

MEMORANDUM DECISION

GOETTEL, District Judge.

Following a reversal of its earlier decisions,

United States v. Village of Airmont, 839 F. Supp.

1054 (S.D.N.Y. 1998), and LeBlanc-Sternberg v.

Fletcher, 846 F. Supp. 294 (S.D.N.Y. 1994), and remand

from the Second Circuit Court of Appeals, LeBlanc-

Sternberg v. Fletcher, 67 F.3d 412 (2d Cir. 1995),

petition for cert. filed, 64 U.S.L.W. 3605 (U.S. Feb. 26,

1996) (No. 95-1381), this Court must now comply with

the Second Circuit’s directives in fashioning appro-

priate remedies. The parties in these two actions

(which were tried and appealed together) differ

entirely as to what is expected of this Court at this

point. In order to understand the dispute, it is neces-

sary to review the history of the litigation in some

detail.

HISTORY OF THE LITIGATION

The Town of Ramapo (“Ramapo” or the “Town”) in

Rockland County, New York, is a large geographical

area composed of a number of incorporated villages

and unincorporated areas. It has a substantial Ortho-

dox Jewish population, consisting primarily of Hasi-

dic Jews.

In recent years, the tendency of villages to incorpo-

rate for purposes of asserting local government con-

trol has increased substantially. Indeed, twelve vil-

lages have broken away from the Town of Ramapo.’

‘ A couple of the villages were formed by Orthodox Jewish

groups for the admitted purpose of creating Hasidic enclaves

so that the village residents could comply with Orthodox Jew-

13a

In the Airmont area of the Town, a group calling

themselves the Airmont Civic Association (“ACA” or

the “Association”), a not-for-profit association, was

formed to seek the incorporation of a village (“Air-

mont” or the “Village”). Although the first president

of that Association and a number of its leaders were

Jewish, they were not Orthodox, and the Association

admittedly sought incorporation of the Village of

Airmont because some of its members felt that the

Town of Ramapo was adopting zoning measures un-

duly favorable to Hasidic Jews. Their initial concern

was multiple-family housing in areas zoned for single

family residences. Another aspect, and a focus of

later ACA concern, was the allowance of home syna-

gogues (“shteebles”) in residential areas through a

liberal interpretation of the Town’s Home Profes-

sional Office zoning law. Through that provision,

groups of up to 49 persons were allowed to attend

services in a home in a residential area provided that

the portion of the home used for that purpose did not

exceed half the dimensions of the ground floor and

provided that only two employees were involved.

In early 1989, a referendum on incorporating the

Village of Airmont was held, which passed by a three-

to-one margin. The operation of the Village was, how-

ever, delayed for two years due to litigation com-

menced by Orthodox groups and real estate interests.

The Village was finally incorporated in April 1991.

Two days later, before the Village had actually

commenced operation, an Orthodox Jewish Rabbi,

Yitzchok LeBlanc-Sternberg (who is Hasidic), and

members of his congregation instituted a private suit

ish law. The United States government saw no unfair housing

problems with respect to the formation of those villages.

l4a

claiming that the formation of the Village violated

their First Amendment rights and the Fair Housing

Act. 42 U.S.C. § 3601 et seg. The action principally

sought large monetary damages and the dissolution of

the Village.” The following month Village elections

were held, and the slate of candidates supported by the

ACA was elected as Mayor and Trustees. (By that

point in time, however, the ACA was disbanding and,

when sued in this action, defaulted). Upon incorpora-

tion, the Village did not adopt a new zoning code but

continued operating for a period of time under the

Ramapo code. As discussed below, it was not until

1993 that the Village adopted a zoning code.

Prior to the Village’s incorporation and the com-

mencement of the litigation, the LeBlanc-Sternberg

congregation, which was located in the Airmont

section of Ramapo, had already received zoning per-

mission from Ramapo to operate a home synagogue as

a “Home Professional Office” under the Ramapo in-

terpretation.*” The LeBlanc-Sternberg congregation

has continuously operated their home synagogue for

the last six and one-half years.

In late 1991, the United States commenced a

separate action under the Fair Housing Act against

the Village and its then Trustees, alleging that the

Village had been incorporated for purposes of ex-

cluding Orthodox Jews through zoning restrictions

on their places of worship. The government sought a

2 They sought preliminarily to enjoin the election of Village

officials but this was denied by the Court because they had not

made a showing of irreparable harm. See LeBlanc-Sternberg v.

Fletcher, 763 F. Supp. 1246, 1252 (1991).

%’ While there were legal challenges to that zoning grant,

they were not pursued after the incorporation.

15a

declaratory judgment and injunctive relief against

further violations. The private action and the govern-

ment action were consolidated for discovery and

eventually trial. The defendants demanded a jury

trial on the private action damage claims, but the

government’s action, including claims for injunctive

relief, was tried to the Court. When the actions were

tried, the government’s case involved factually not

only the LeBlanc-Sternberg congregation but also

another congregation headed by a Rabbi Chaim Fried-

man.*

During the first year and a half of the pendency of

these actions, there was no zoning activity concern-

ing home synagogues. In January of 1993, however,

more than a year and a half after the private action

was commenced, and more than a year after the gov-

ernment’s action was commenced, Airmont adopted

its own zoning code, which was approved at a public

meeting without objection. The new code modified the

Ramapo zoning provision regarding Home Profes-

sional Offices. It kept the same restrictions con-

cerning use of no more than half of the ground floor

and no more than two employees but added language

indicating that the Home Professional Office should

4 Rabbi Friedman’s congregation had also commenced a

separate lawsuit looking for damages of its own. That action

remains pending before a different Judge in the Southern

District of New York. That congregation was attempting to

build a free-standing synagogue, which did not fall under the

home professional office exception. Although Friedman’s ap-

plication to build the synagogue was eventually approved by

the Town Planning Board, the congregation had problems with

finances and safety aspects of the State’s building code. In the

interim, it has functioned in the Rabbi’s home as a Home Pro-

fessional Office.

16a

not generate activities inconsistent with a residential

area. The change in the zoning code cid not result in

any amended pleading being filed in either action or

any request for temporary injunctive relief being

made. Since the date of its passage, the provision of

the amended zoning code concerning Home Profes-

sional Offices has never been applied or interpreted.

The consolidated cases went to trial in October of

1993. The trial lasted seven weeks. The jury delib-

erations lasted for a full week—the longest that this

Judge has ever seen for a civil case. The private

action was submitted to the jury on a special verdict

form containing a number of interrogatories. Eventu-

ally the jury returned the verdict form answering

most questions in favor of the defendants. It found for

all of the individual defendants awarding no damages

against any of them. It determined that the majority

of voters who favored incorporation were not moti-

vated even in part by discrimination against Orthodox

or Hasidic Jews. It did find, however, that the Village

had violated the private plaintiffs’ fair housing rights

and had conspired to violate their rights to the free

exercise of religion or free speech. Despite these

findings, the jury did not award any damages against

the Village, not even nominal damages. In the view of

the only Judge present during these lengthy proceed-

ings, this was a compromise verdict and, to an extent,

an inconsistent one. This Court then decided the gov-

ernment’s action in favor of the Village and its

Trustees, finding essentially that, while some bias

against the Orthodox Jews existed among Village

officials, the Village had done nothing to interfere

with their religious practices or fair housing rights.

Consistent with that, we reversed that portion of the

17a

jury’s verdict that had found against the Village.

Both plaintiffs then appealed.

T T APP S DECISION

The Court of Appeals first reversed this Court’s

entry of judgment on behalf of the Village in the

private plaintiffs’ case. In a lengthy opinion it noted

that the defendants had demanded a jury trial on the

damage aspects and held that, if a claim for damages is

joined with an equitable claim, the right to a jury

trial on all issues common to both claims prevails.

LeBlanc-Sternberg, supra, 67 F.3d at 426.

With respect to the apparent inconsistency of the

verdicts, it held that it was the duty of the District

Court to harmonize the jury’s responses by seeking

an explanation supportable by the record to correct

the apparent inconsistency. Jd. at 427. The appellate

panel divined that the jury “may have been persuaded

that the violative act [of the Fair Housing Act] was

the enactment of the Airmont zoning code,” id. at 428,

and that it was a “fair inference” that the jury viewed

this as an act designed to limit home synagogues,

thus make housing unavailable to Orthodox Jews.’ Id.

5 Since a Village is an inanimate body which cannot do

anything without human action, the Court of Appeals had to

explain why the individual defendants who had passed the zon-

ing change were not personally liable. The opinion resolves

this by noting that the jury was charged, in answer to its

specific question, that the Trustees had legislative immunity

with respect to their official acts in voting legislation. Jd. at

428. As to whom the Village was conspiring with, since it could

not conspire with itself or its own officials, the Circuit Court

concluded that it was “easily inferable” [sic] that it had

conspired with the Airmont Civic Association. Jd. However,

the ACA had gone out of existence and ceased activities before

18a

It, therefore, found the jury’s verdict consistent

“with fully supportable findings,” id. at 429, which

were reasonable, and it required the District Court to

accord the jury’s verdict such an interpretation. Id.

It chastised the trial court for making findings of

fact, for weighing the evidence, and for not following

findings that were “implicit” in the jury’s verdict.’

Id. at 430.

The lengthy decision then cites all of the evidence

it could muster from the trial record to support its

factual findings. It concluded that, taking the evi-

dence in the light most favorable to the private

plaintiffs, “there was ample support for the jury’s

implicit finding that Airmont’s zoning code would be

interpreted to restrict the use of home synagogues,

that the motivation behind the enactment was

discriminatory animus toward Orthodox and Hasidic

the zoning code was amended. Indeed, it had been the subject

of a default judgment a year earlier.

6 The jury, having found for the individual defendants and

not having awarded any damages, it would seem that we were

dealing solely with injunctive relief, which is always a matter

exclusively for the Court.

? With respect to factual findings, we note that the appellate

decision found that numerous outrageous anti-Orthodox state-

ments were made by various of the individual defendants.

While there was evidence that such statements were made,

there was also evidence of denials by the various defendants of

having made such statements, in some instances supported by

tape recordings of the hearings in question. Moreover, while

the decision recites minutes concerning “a grim picture of a

Hasidic belt from Rockland through Orange & Sullivan

Countys,” id. at 418, the minutes were reporting statements

made to the group by the Jewish Superintendent of Ramapo

who had been named as a defendant in the private action, but

had been dismissed on motion by this Court.

19a

Jews, and that Airmont pursued this goal jointly with

ACA.”* Id. at 431. The opinion further held that

plaintiffs were entitled to nominal damages because it

was “plain error” for the trial court to instruct the

jury that it “may award” such damages, rather than

that it must do so, citing Gibeau v. Nellis, 18 F.3d

107, 110-11 (2d Cir. 1994).° Id. With respect to injunc-

tive relief, it held that on remand the Court should

consider “whether injunctive relief may also be ap-

propriate.” Jd. at 432. The Court did uphold the ver-

dict on behalf of the five individual defendants finding

that the plaintiffs had received a fair trial and there

was no basis for reversal of the verdicts in their favor.

Id. at 433.

With respect to the government’s action, which un-

der this Court’s decision had resulted in a complete

victory for the defendants, it held that the govern-

ment can get the benefit of nonmutual offensive col-

lateral estoppel, although it could not have been

imposed against the government. Jd. at 434. Conse-

quently, having made findings resulting in a jury

verdict against the Village in the private action, it

held that this Court could not properly make findings

that contradicted what the appellate decision said the

jury had intended.” Jd. The net effect was that by

5 See footnote 5, swpra, concerning the status of the ACA at

this point in time.

* The appellate decision did not bother noting that this

“plain error” derived from a case that was not decided by the

Court of Appeals until months after the trial of this action.

” This, Court’s decision had made extensive factual findings.

See United States v. Village of Airmont, 839 F. Supp. 1054

(S.D.N.Y. 1993). The appellate decision did not dispute any of

these specific findings but instead superimposed its view of the

jury’s findings so as to render them immaterial.

20a

appellate alchemy the government’s total loss was

converted into a complete victory. The government’s

action was remanded for injunctive relief and the

fashioning of appropriate equitable remedies applying

Fair Housing Act principles. Jd. at 435.

INJUNCTIVE RELIEF

The Defendant Village’s Position

The Village opposes granting any injunctive relief.

It notes that the zoning code on which the Court of |

Appeals focused did not come into existence until long

after these lawsuits had been filed. The Village |

ar~ues that there has never been an application by the

Orthodox Jews (or anyone else, for that matter) for

additional places of worship in the Village, nor has |

there been a request for interpretation of the zoning |

code. Consequently, it contends that there has been |

no demonstration of discriminatory impact, direct or

indirect, by the zoning code, either as written or as

applied. The Village notes that the private plaintiffs

conceded at trial that the Village had not interfered

with their worship services." Consequently, it as-

serts that the plaintiffs have not met their burden of

showing any real or immediate threat that they will

be wronged, citing City of Los Angeles v. Lyons, 461

U.S. 95, 111 (1983), nor have they demonstrated any

indication of real and imminent harm. Carey v.

Klutznick, 687 F.2d 834 (2d Cir. 1980); O'Shea v.

Littleton, 414 U.S. 488 (1974).

'! However, some individuals did make such attempts, albeit

unsuccessfully, by monitoring the number of persons attending

services.

al

2la

The Court Of Appeals Holding

There is considerable substance to the Village’s

argument. However, it has one fault—it is contrary

to the emphatic directions of the Court of Appeals

that injunctive relief must be granted to avoid dis-

crimination in a manner “found to be predictable from

the evidence in this record,” LeBlanc-Sternberg,

supra, 67 F.3d at 434, and that “on a practice that .. .

is about to occur” the Court is authorized to grant

injunctive relief. Jd. at 425. With respect to the

claims brought under the Fair Housing Act, we are

directed to enter such injunctive relief “as is neces-

sary to assure full enjoyment of the rights granted by

[the Act].”” Id. at 434.

T Vv : Vv

The Court of Appeals decision authorizes relief to

parties who “will be injured by a discriminatory hous-

ing practice that is about to occur,” citing 42 U.S.C.

§ 3602(i). Id. at 425. In light of that Court’s interpre-

tation of the jury’s verdict, as applied in the govern-

ment’s case, the government has understandably

focused its request for injunctive relief on the zoning

code. However, rather than requesting prohibitory

injunctive relief against illegal or unconstitutional

applications of the code, the government has sought to

redraft the zoning code in an affirmative manner. In

its memorandum in support of its request, the gov-

ernment argues that “[t]Jaken together, these changes

will help ensure that the Village will permit the use

2 No citation of authorities for this proposition—i.e. where

no action has been taken or is imminently threatened—is set

forth by the Court of Appeals, other than the language of the

Act itself.

22a

of residences for regular religious worship and that it

will otherwise respect the rights of Orthodox and

Hasidic Jews to live and pray in Airmont.”” Govern-

ment’s Memorandum at 11.

The Village notes that the zoning changes re-

quested by the government would allow a home syna-

gogue to operate in virtually every house and could

completely eviscerate its zoning code. That may well

be. The Second Circuit opinion appears incompatible

with the decision of the Eleventh Circuit in Grosz v.

City of Miami Beach, Florida, 721 F.2d 729, 741

(1983), cert. denied, 469 U.S. 827 (1984), and the deci-

sion of the Sixth Circuit in Lakewood, Ohio Congre-

gation of Jehovah’s Witnesses, Inc. v. City of Lake-

wood, Ohio, 699 F.2d 308, cert. denied, 464 U.S. 815

(1983). In addition, it would appear to contradict an

earlier decision in this District which also concerned

Ramapo. Congregation Beth Yitzchok of Rockland,

Inc. v. Town of Ramapo, 593 F. Supp. 655 (S.D.N.Y.

1984). However, while we may disagree with the

ruling of the Circuit Court, we are compelled to fol-

low its directions.

The government’s changes in the zoning code are obvi-

ously intended to assist only Orthodox Jews and not other

smaller religions that conduct home services, which is a ques-

tionable favoring of one religion. However, that conforms to

the Court of Appeals’ conclusion that the need for home places

of worship is “unique to the Orthodox and Hasidic Jews.” /d.

at 430-31. (The Court of Appeals reached this conclusion on the

debatable basis that Orthudox and Hasidic Jews were the only

ones who had applied to conduct services under Ramapo’s

home professional office provisions.) There was, however, evi-

dence at trial of other small non-Jewish religious groups which

held home services.

23a

Since the Village has done nothing except pass a

zoning code which has never been enforced or inter-

preted, and there are no actions to overturn, it would

seem that there is no other way of satisfying the

remand directions except by revising the existing

zoning code. Consequently, we accept in general the

government’s approach to amending the zoning code

as being the only practical way of complying with the

remand order.” We will, therefore, in a separate

order and judgment, enjoin the Village and its of-

ficers, employees, agents, successors, and assigns

from promoting religious discrimination; from deny-

ing equal opportunity to religion by use, interpre-

tation, or enforcement of the zoning code in such a

manner that it prevents home worship; from dis-

4 Any attempt to enforce the code in violation of the Fair

Housing Act or constitutional rights would, of course, be illegal

even without injunctive relief. However, as the government

argues, a preventive injunction can be enforced by contempt

sanctions without the necessity of instituting new litigation.

6 We do this despite the Supreme Court’s teaching in Rizzo

v. Goode, 423 U.S. 362 (1976), that, in light of considerations of

federalism, “[w]here . . . the exercise of authority by state

officials is attacked, federal courts must be constantly mindful

of the ‘special delicacy of the adjustment to be preserved be-

tween federal equitable power and State administration of its

own law.’” Jd. at 378, citing Stefanelli v. Minard, 342 U.S. 117,

120 (1951). We also ignore the more recent Supreme Court

directive that equitable relief must be remedial in nature, i.e. it

must be designed to restore as nearly as possibie the victims of

discriminatory conduct to the position they would have occu-

pied in the absence of such conduct. Missouri v. Jenkins,

U.S. ——, 115 S. Ct. 2038 (1995). We do not see the relief

requested as improving in any way the rights already

exercised by the Orthodox in Airmont. The relief simply is

insurance that there can be no challenges to their exercise of

religion in their homes in the future.

24a

criminating because of religion or interfering with

the free exercise of religion in connection with hous-

ing; and from taking any action that limits the

availability of housing on the basis of religion. Spe-

cifically, we will direct a revision of the zoning code

so that it will not be construed to prevent home wor-

ship, or to prevent persons from walking to and from

religious services at such places of worship, or to

prevent home worship services on any day in all

residential zones. In addition, the phrase “place of

wership” will be replaced with “free-standing place of

worship” throughout the zoning code and will be re-

defined so as to allow a portion of the building to be

dedicated as living quarters for clergy and their

families; and the phrase “neighborhood place of wor-

ship” will be added and will refer to larger structures

used exciusively for the conducting of organized

religious services, which will be permitted in all

residential zones. In addition, as requested, we will

order that the last two sentences of the definition of

“Home Professional Office” be deleted.”

The government also requests that the Village be

directed to retain applications for residential homes

of worship for five years. In light of the changes made

in the zoning code, we do not foresee the need for

zoning applications. The government also requests

‘6 We do not wish to imply that we have any agreement

whatever with the Ramapo approach to home places of wor-

ship. While construing these as professional offices might have

been a satisfactory political solution to a difficult question, it is

intellectually dishonest to categorize services involving up to

fifty people as being an activity of a home professional office

such as might be conducted by a doctor, lawyer or religious

leader who simply consulted with a couple of members of his

congregation.

25a

that for five years the Village notify the government

of any zoning and planning applications which relate

to religious worship or changes in the zoning relating

to religion. While we deem it highly unlikely, under

the circumstances, that the Village would entertain

anything relating to religion under the zoning laws,

we see no harm in including that in the relief granted.

Private Plaintiffs’ Requests

The private plaintiffs’ main request for injunctive

relief is a major one: they seek the dissolution of the

Village. They argue that they have proved that the

defendants have engaged in a pattern or practice of

discrimination and that discriminatory intent was at

the root of the incorporation of the Village and conse-

quently, they maintain, they are entitled to this rem-

edy.

There are several fallacies to this argument. In the

first place, there has been no finding of religious

discrimination with respect to the incorporation of

the Village of Airmont. Indeed, the jury found that

the majority of voters who supported the incorpora-

tion of the Village were not involved in religious dis-

crimination. Moreover, the appellate decision re-

manding the action focuses upon the change in the

zoning code as to which no action has ever been taken.

There is nothing in the Court of Appeals’ decision

even remotely suggesting that the Village must be

dissolved. The Second Circuit has held, in Dean v.

Coughlin, 804 F.2d 207, 213 (1986), that we should not

use a sledgehammer where a more delicate instru-

ment will suffice. We believe that the relief requested

by the government and granted by this Court ade-

quately meets the Second Circuit’s concerns ex-

pressed in their decision.

26a

Another problem with the private plaintiffs’ re-

quest is that it has no support in either the statute or

case law. The private plaintiffs rely on Gomillion v.

Lightfoot, 364 U.S. 339 (1960). That case was virtually

the converse of the present situation. The state

legislature in Alabama had revised the boundaries of

the City of Tuskegee so as to eliminate the famous

black Tuskegee Institute which included most of the

black residents of the City. The Supreme Court

reversed this action, finding that it was contrary to

the Fifteenth Amendment by depriving blacks of their

right to vote on account of their race.

Curiously, the private plaintiffs ask, alternatively,

for relief similar to what the Supreme Court con-

demned in Gomillion. They seek a plan to redistrict

the Orthodox “who reside in some localized area of

Airmont” back into the Town of Ramapo. We doubt

that we could adequately ascertain what the localized

area would be. (The six-lane New York Thruway

forms a natural boundary between Ramapo and Air-

mont.) Moreover, the Orthodox population in Airmont

has increased since the formation of the Village.

That relief also seems both contrary to the directions

of the Court of Appeals and of doubtful legality in its

own right. The Supreme Court recently ruled that

the government may not establish boundaries accord-

ing to religion. Board of Education of Kiryas Joel

Village School District v. Grumet, —— U.S. ——, 114

S. Ct. 2481 (1994). As the Second Circuit has held, the

purpose of the Fair Housing .Act is to promote inte-

gration, not to encourage segregation. Otero v. New

York City Housing Authority, 484 F.2d 1122 (1973).

Finally, the local government law of New York has

provisions for alteration of municipality lines, incor-

27a

poration or unincorporation of local villages. To the

extent that a discreet area of Airmont could be de-

scribed, we know of no inhibition on that area’s hold-

ing a referendum to remove itself from the Village of

Airmont.

The private plaintiffs also request relief similar to

that requested by the government. (Indeed they join

in all of the government’s requests.) The remand

instructed this Court that it “should consider

whether injunctive relief may also be appropriate.”

LeBlanc-Sternberg, 67 F.3d at 432. While we question

whether the private plaintiffs, whose rights have long

been vested, require any injunctive relief at all, that

which has been granted in the government’s action

will more than suffice. We believe that, to the extent

that their requests are justified, they have been ade-

quately encompassed by granting the government’s

requests.”

DECLARATORY JUDGMENT AND

NOMINAL DAMAGES

While the Village disputes the need for declaratory

relief, the Court of Appeals remanded the action for a

declaration that the Village violated the Fair Hous-

ing Act. Consequently, we have no alternative except

to so declare. The action was also remanded for pur-

poses of granting nominal damages to the private

plaintiffs. The remand does not indicate in what

At times in dealing with the private plaintiffs’ action in its

opinion, the Second Circuit acts as if they were pursuing a class

action. They were not. They were seeking money damages

and the abolition of the Village on their own. Another Ortho-

dox group, as mentioned above, has pending its own separate

action.

28a

amount the nominal damages should be, but the tradi-

tional amount has been $1.00. Consequently, we

award each of the private plaintiffs nominal damages

in the amount of $1.00.

ATTORNEYS’ FEES

The remand decision in this case did not mention

attorneys’ fees. The private plaintiffs, however, re-

quest the Court to set a schedule for them to make an |

application for attorneys’ fees as the prevailing par- |

ties in this action. We question whether the private

plaintiffs are truly the prevailing party in the private

action. They lost to the five individual defendants

who are clearly prevailing parties. Moreover, to the

extent that the private plaintiffs are the prevailing

party against the Village, they have not prevailed on

their major goals of recovering substantial monetary

damages and having the Village dissolved. While the

Supreme Court and the Second Circuit have been

taking dramatically different approaches to the need

for attorneys’ fees to be proportionate to the success

obtained, the Supreme Court has held that a plaintiff

who obtains only nominal damages when suing for a

much larger sum is usually not entitled to attorneys’

fees, even though he technically qualifies as a pre-

vailing party. Farrar v. Hobby, 506 U.S. 103 (1992);

but see Cabrera v. Jakabovitz, 24 F.3d 372, 393 (2d

Cir.), cert. denied, 115 S. Ct. 205 (1994). |

There is a practical reason for not awarding the

private plaintiffs attorneys’ fees here. Two of the

prevailing defendants have an application pending for |

attorneys’ fees." If we direct the Village to pay

'’ This application was argued some time ago. However,

after the appeal was filed and the appellate panel selected, this

scieeerncreaainieiiaainiaiaiesiiatiiiiieiiiiiiaiaiiii

29a

attorneys’ fees of the plaintiffs and the plaintiffs to

pay the attorneys’ fees of the two individual defen-

dants, what we have will amount to directing the

Village to pay the attorneys’ fees of the individual de-

fendants.”

We do not, however, rule on this matter at this time

since no application for attorneys’ fees as such has

been made, rather a request that we set up a “sched-

ule.” The private plaintiffs’ counsel are free to make

any application which is timely, under the rules and

the case law. The issue will be decided at that time.

SO ORDERED.

Dated: April 25, 1996

White Plains, N.Y.

/s/ GERARD L. GOETTEL

GERARD L. GOETTEL

U.S.D.J.

Court thought it prudent not to act upon their application at

that time.

This, in fact, is a relief which two of the individual defen-

dants, who were separately represented in this action, sought

to obtain in the first place.