1 1 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 18VTKIR1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------x KIRYAS JOEL ALLIANCE, et al.

, Plaintiffs, v. VILLAGE OF KIRYAS JOEL, et al., Defendants. ------------------------------x New York, N.Y. August 31, 2011 5:10 p.m. Before: HON. JED S. RAKOFF, District Judge APPEARANCES SUSSMAN & WATKINS Attorneys for Plaintiff BY: MICHAEL SUSSMAN COVINGTON & BURLING Attorneys for Defendant Village of Kiryas Joel BY: MARK GIMBEL ALAN VINEGRAD MCCABE & MACK Attorneys for Defendant Village of Kiryas Joel BY: DAVID POSNER MORRIS, DUFFY ALONSO & FALEY Attorneys for Defendant Witriol BY: CARL SANDEL TARSHIS, CATANIA, LIBERTH, MAHON & MILLIGRAM Attorneys for Defendants Congregation and David Ekstein BY: RICHARD MAHON, II SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 CV 3982 (JSR)

2 1 1 2 2 3 3 4 4 5 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 18VTKIR1 BONACIC, KRAHULIK, CUDDEBACK, McMAHON & BRADY Attorneys for Defendant Town of Monroe BY: JAMES GALVIN SOKOLOFF STERN Attorneys for Defendants Goldstein, Freund, Landau, Reisman and Weider BY: BRIAN SOKOLOFF

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

3 18VTKIR1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (Case called) THE COURT: Good afternoon. I should probably mention at the outset that Mr. Sussman is a lawyer who I have long had a great admiration for, and Mr. Gimbel is not only a lawyer I have had a great admiration for but also is my former law clerk. I have great confidence that by the end of this case neither will ever want to see me again, but until then, I just wanted to mention that on the record. OK. I'm ready to hear oral argument starting with the movant. MR. GIMBEL: Good afternoon. As the Court is aware, Kiryas Joel is a community in upstate New York. It has over 20,000 residents. THE COURT: All of whom are litigious. MR. GIMBEL: Some of whom, at least, are litigious. The plaintiffs are ten of those litigious residents who are upset with the village government. But rather than exercising their remedy at the ballot box, they decided to come here and ask the Court to make the village government disappear. The ask the Court to dissolve the village, or at the very least bar its elected officials from office based on a variety of claims of constitutional violations. The complaint is long and it's full of melodrama. It has more than 400 paragraphs of allegations laced with inflammatory rhetoric about how Kiryas Joel is operated as a theocracy. But we think if you step back SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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4 18VTKIR1 from the rhetoric and if you analyze the pleading claim by claim and plaintiff by plaintiff, you'll come to the inescapable conclusion that the complaint is full of sound and fury but ultimately signifies nothing. THE COURT: Let me ask you this, one of their allegations is that the community room law impermissibly advances religion because this is just a cover up for both rooms that operate for religious purposes and also gives rise to a community room fund that has been used, they say, exclusively to fund the construction of places of worship for what I will call the majority group. Why doesn't that survive? Assuming for sake of argument that all the other claims died -I'm just saying that for the sake of argument -- but why doesn't that one survive? MR. GIMBEL: I think there are a number of reasons, your Honor. The first is that they don't allege, any of the plaintiffs, they have been personally aggrieved by the application of this community room law. If you read the complaint carefully, there is a non-party, Lipa Deutsch, who claims that the village applied the community room law in a discriminatory manner, but it's not a claim made the plaintiffs. So when they have a fundamental problem with standing. But if you get beyond the standing problem, the law survives establishment clause challenge because it's a law that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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5 18VTKIR1 completely controlled on its face. And although the plaintiffs claim that the effect of the law is establish religion because of all of these community rooms are in fact used for religious purposes by the majority congregation, that claim fails under Supreme Court precedent because the fact that the rooms are used, if plaintiffs are right, for religious purpose, is the result of private choices made by individual residents of the village. And so it doesn't suggest a government endorsement of religion or carry any sort of imprimatur of the government. And there's a line of Supreme Court cases that basically say that when you have a neutral government statute that provides a benefit to a broad class of citizens and those citizens then in turn choose to use that benefit for religious purposes, that doesn't implicate the establishment clause because it's not a governmental act and it's not understood as such. It's not understood as a governmental endorsement of religion, it's understood as the choice of private citizens. And probably the leading case on that point is the Supreme Court's decision in Zelman v. Simmons-Harris. THE COURT: Would that be true where the majority of the citizens of a particular municipality were also members of the group whose religion was being advanced by the law? MR. GIMBEL: I think the answer is that it doesn't matter how many people are taking advantage of the law for religious purpose. And there's a discussion in Zelman where SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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6 18VTKIR1 the court goes into the fact -- Zelman involved tuition vouchers, and the court goes into the fact that under certain analyses and the statistics up to 96 percent of the people who were receiving those vouchers were using them in effect to fund religious education. The court said that's not really the issue, the issue is: Is this a function of private choice or is it a function of governmental dictate? THE COURT: Let's assume -- I have to go back and read Zelman, but let assume that a community that consisted 96 percent of members of some obscure religious sect, the X religion, that community passed a lot that said you can use private school vouchers for any appropriate purpose, but they knew and intended when they passed the law that they were really going to use it to advance their religion, they just said we will put on for the moment our secular hat, but our purpose, as anyone would know if they put us on a lie detector, is really to advance our religion. That wouldn't pass muster under Zelman, would it? MR. GIMBEL: I think it would, because again you have a neutral law, and the only reason that there's a religious purpose or the benefit is being put to religious use is because citizens are exercising the right of choices. THE COURT: So in your view, as long as that superficial neutrality is preserved, you can never pierce beyond a sham? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

7 18VTKIR1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. GIMBEL: Well, I don't think -THE COURT: Supposing -- forgive me, I'm interrupting you, but I'll make it even harder for you, so to speak. So there's a tape recording of a meeting of the city council in my hypothetical community, and at the meeting of the city council off the record the members of the city council say we really need to fund the money into our religion, here's a nice way to do it. We'll pass a superficially neutral law that in fact under the sham of private choice will allow us to take lots of public money and put it to the benefit of our religion, now let's go into the room and pass this neutral law. Unbeknownst to them, unfortunately, the FBI is wiretapping this conversation. And you're saying that still wouldn't matter? MR. GIMBEL: What I'm saying is the critical thing is: Is the law neutral on its face and is it put to a religious purpose by virtue of private choice? And what we have here is I think a step removed from your hypothetical, because this fact we have a complaint where -THE COURT: I could make it worse for you. MR. GIMBEL: I'm sure you could make it much worse. But we do have a complaint that alleges one person attempted to use a community room for a secular purpose, and the complaint concedes that that individual was in fact allowed to use a community room for secular purpose. So what this shows you is that private choices aren't a sham, they could be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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8 18VTKIR1 made in the village, and one can, and consistent with the completely neutral character of the law, use the community room for recreational purposes and purposes unrelated to religion. And that's what makes it acceptable, because the law does not suggest governmental endorsement of religion. It's neutral on its face. In application, these rooms may be used for religious purposes, but that's, again, the result of private citizens making choices. THE COURT: Maybe we ought to pause there, although there's a lot of other claims, but just to hear your adversary's response on this particular claim, then we'll come back to moving counsel. MR. SUSSMAN: Thank you, your Honor, may it please the Court. I'm frankly a bit astounded by the argument, because I don't really follow it entirely. The complaint alleges, just so we're clear, that the village of Kiryas Joel has passed on ordinance, local law. The purpose of the local law is to ensure or require or force private parties, developers, to dedicate monies to a quote, community room, which the makers of the law expect, require, effectively, to be used for religious purposes which foster the entanglement that they otherwise have fostered between themselves and the main congregation which they either lead or are members of. So when counsel says that the intervening thing that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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9 18VTKIR1 makes this constitutionally permissible is the personal choice, the complaint does not allege that. He may allege that, the proof at the end of the trial may allege that. I don't believe they will or come close to that. The issue is the coercive nature of the use of government, the Village of Kiryas Joel, to require for a religious reason, not a secular reason, developers, private developers, to do what they otherwise would not do to foster religion. I mean I don't see on that basis -THE COURT: Well, what he's saying in part -- I want to get back to the standing issue in a minute, but what he is saying in part is if the law is neutral on its face, the fact that it in practice works out the way you allege would not be an impediment. So that, for example, if a councilman of the city council somewhere in a hypothetical said, you know, we should tax everyone in the following way, and then use it for certain community purposes to be decided by the individual recipients, some of which will be for religious purposes, and someone on that city council said gee whiz, as a practical matter, that means most of the money is going to be used to support a particular kind of religious building or something like that, and the other city councilman said well, that may be, but why should we not take advantage of what the Constitution allows in this respect when it will be a neutral law, and as times change and the composition of our community SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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10 18VTKIR1 changes it may a be used in different ways. So he is saying the fact that you allege that it is being used for primarily religious purposes is not sufficient by itself, and what is your basis for alleging that the intent was religious purpose? MR. SUSSMAN: Well, you can determine the intent by the fact that the makers of the law are the same individuals -that is, the local government -- which then operationally controls the decision. Counsel is saying that the decisions are made on some sort of decentralized, localized basis. We allege very plainly, it seems to me, that's not the case, that this was a contrivance which was intended to allow the village to use its governmental authority to intentionally foster the religion of the majority. THE COURT: I thought in the formulation you used a minute ago the victims were the developers. MR. SUSSMAN: I'm not saying the victims are the developers, what I'm saying is the law -- the law as it's constructed requires developers -- that's how I formulated it -- to do a certain act, whether they would otherwise do that act or not. The complaint indicates that -- and the primary problem with this is that the village has, with a primary purpose of fostering a particular religion to the exclusion of others, because they are the majority who control, both the village boards and the congregations. It's not a situation where, as your hypothetical SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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11 18VTKIR1 posits, individual choice is the predominant feature. It's the contrary, individual choice is subordinated here. There's nothing in the complaint that indicates that individual choice dictates the result, as in the voucher case cited in Zelman, the complaint asserts the control by the majority institutions not only inform the enactment, which is meant to funnel funds for a religious purpose from the beginning, which is your hypothetical. I agree with your hypothetical. THE COURT: How are the plaintiffs here injured? MR. SUSSMAN: Well, in the context of all of our allegations, the plaintiffs are -- if you talk about the organizational plaintiffs, the organizational plaintiffs are injured because what you end of having, Kiryas Joel Alliance, are a series of community rooms dominated by one religious group. The members of the other group are not welcome in the rooms, just like they were not welcome in the main synagogue when we had to move the voting out of Kiryas Joel, and there is a constant need, if you will, to defend the members of our organization from the imposition of the other organization which is now given a heightened position. THE COURT: And this goes to your other claims as well. Are you asserting that your clients are members of a different religion, or are you asserting they are members of same religious group who just disagree with who should be the leader of the group? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

12 18VTKIR1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SUSSMAN: Well, as we said earlier, they're all Satmar Jews, so we cannot say they're a different religion, and I don't say they're a different religion. But there are differences in a religion, as I'm sure is obvious to anyone, probably the most single important characteristic is who is your leader, who is your leader, what your leader tells you to do and believe. Here, as is understood, there are two factions, one faction has a hegemony in Williamsburg and another faction has a hegemony in Kiryas Joel. In Kiryas Joel, the faction with the hegemony, the one that we believe control both the religious and civic life, through the examples we have given in the complaint, have continually oppressed a particular group in a number of enumerated ways, which are not exclusive in the complaint but the complaint gives example of those. The Kiryas Joel Alliance, one of its functions is to advocate for and curb, if you will, that oppression, so they hire security guards to accompany individuals expending their resources -- which is one of the tasks for organizational standing that remains valid -- in order to ensure that their members are safe, thereby gaining organizational standing in this case. Their individual members have been affected, and some of them are plaintiffs individually, by a plethora of specific practices, but the basic practice that they are complaining about is they live in a village where there is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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13 18VTKIR1 this, across all spheres of social life -- that means intersection between the government and residences -discrimination. And you can pick apart -THE COURT: I'm trying to determine what the nature of that discrimination is. For example, if you had again a hypothetical community, you had a situation where one group of African-Americans discriminated against another group of African-Americans because of some political differences they had or some original differences they had or whatever, it would not be racial discrimination. It may be actionable under some other law, but it would not be racial discrimination. So to the extent that you're claiming, if you are, religious discrimination or religious entanglement or so forth, I'm not sure that is what going on here. MR. SUSSMAN: I think it is what's going on here. Because as I said earlier and as I think the complaint makes clear, the basis of the discrimination in this case is one group's membership in a religious organization, a synagogue, a congretation, which is distinct in leadership and in some of its fundamentals, some of its belief systems, from the other group. They're both Satmar Jews, I'm not arguing that. THE COURT: What is the difference in their creed, the fundamentals that you refer to, other than they disagree on the leadership? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

14 18VTKIR1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SUSSMAN: The fundamental difference in creed, as I would explain it to the Court, and I think this goes a little beyond the complaint, so I'll try to explain. THE COURT: If necessary, if that were critical, you might be given leave to amend. MR. SUSSMAN: Thank you. I think there are two -- as I have been in this community for over 20 years, there are two or three most discernible differences, one is that one group believes that it is appropriate to take and utilize state funds to directly advance religion. The other group believes as a matter of religious belief and practice that it is impermissible to do so because doing so, in the case of a public school, which one group supports and the other vehemently opposes, is essentially to deceive the state by claiming that you're not engaging in religious activity in that school when you are and must in order to maintain the attributes of your religion. THE COURT: Is that really a religious difference? MR. SUSSMAN: It is. THE COURT: It has been true from time immemorial in this country that when religious groups were small and weak they were great believers in total separation of church and state, and as they became larger and more powerful, their views changed. But I'm not sure that change was a religious creed change. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

15 18VTKIR1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SUSSMAN: Here's why I would define it as religion. One group it prepared to represent to the state that a number of its members, here defined broadly as handicapped or disabled, will be educated in a way bereft of religion in a public school. The other group believes as a matter of religious principle that you cannot separate those who are, if you will, disabled or handicapped from religious education. You must not take the largess of the state or the broader community, and you will take care of your own as a religious obligation, and not, if you will, lie or deceive the state. I think that is a religious distinction. I don't think it's merely a political distinction, I think it's a religious distinction because it relates to fundamental religious values of inclusion of honesty or integrity in the public process and in the individual process. I also think there are significant differences with regard to views about Israel and whether Israel represents a state which can be, from a religious -- you certainly understand, I think what I'm getting to -- from a religious point of view, accepted, traveled to, tolerate, revered by one group and the other group rejects it as something which is unfulfilled. THE COURT: I think that may qualify as religious. MR. SUSSMAN: And the disputes, if one reads about them in the journals and papers, that is certainly highlighted. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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16 18VTKIR1 Then there are other more technical religious -- but I think fundamentally, going back to your initial question, the greatest issue is who do you recognize as having responsibility for dictating and passing on the creed. And in this case, the two groups have fundamentally different understandings of who has that legitimacy, and that is at base a religious dispute. It can obviously have political manifestations, everything can, but it has to do with how one understands succession in the religious sense. And that is the heart of controversy as it has existed since the death of grand rebbe. So I think it's religious in nature. And the other part that I make clear to the Court -and this is not in the complaint -- this has been played out in a deeply -- in rituals and institutions which are deeply religious institutions, like marriage, who can marry someone, that, too, is a religious ceremony in this community. And as the complaint does aver to, with regard to marriage, our group marries through rabbis who are not recognized by theirs, now at facilities not recognized by theirs, and that has engendered some of the vitriol which is outlined in the complaint. I submit to the Court that, too, in this context has religious connotation, denoting who is able, from a religious perspective, is a deeply religious determination, it's not merely something else. THE COURT: All right. Let me thank you, that's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 18VTKIR1 helpful. Let me go back to Mr. Gimbel. MR. GIMBEL: Briefly, your Honor, a couple of points. First on the standing point, none of the plaintiffs in this case claim to be aggrieved by the operation of community law. There's not a plaintiff who came in and said I tried to use the community room for secular purposes and I wasn't permitted. There's not a plaintiff in the case who said I was kept out of the community room because I'm not part of the majority congregation. THE COURT: I have to go back, and it is a somewhat verbose claim, part of claim is this is serving to establish one religious sect at the cost -- at the implicit cost of the others. MR. GIMBEL: Well, certainly that claim is made, but again, that goes back to the fact that this is law that's neutral on its face. And if what is happening in community rooms is one sect is using them more than another, that's a function of private choice. There's no allegation by any plaintiff they have been preventing from using a community room for purposes of their own so-called dissident congretation. And what we often hear in response to arguments that we make about standing from Mr. Sussman is that the Kiryas Joel Alliance can come in and make all of these claims, and I want to address that briefly. Because it's very clear under Second SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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18 18VTKIR1 Circuit law that Section 1983 claims are personal to the plaintiff. And what that means is an organization can't come in on a representational standing theory and advance a 1983 claim on behalf of their various members, and that that's clearly established. THE COURT: The only people that the Supreme Court recognizes other than human beings are corporations. MR. GIMBEL: Quite correct, your Honor. And the Kiryas Joel Alliance really only alleges in this complaint two things, according to Mr. Sussman, that constitute, in its view, an injury. First, it says well, we had to once retain the honest ballot association to monitoring an election back in 2004, and second, we have had to hire private security because the KJ police, public safety department isn't providing adequate security. So on the first of these, the honest ballot association claim, there's no question, Mr. Sussman doesn't dispute it, that these claims of election irregularities are time barred. There's a three-year statute of limitations. That doesn't getting into the standing of the complaint about anything. And with respect to the claims about the public safety department, at most, that would give it standing to complain about public safety, it wouldn't give it standing to come in here and complain about community room law or any of the many SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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19 18VTKIR1 other things that are going on in this complaint that aren't tied to any particular individual claim. And that's really one of the fundamental problems with this complaint. When you look at it claim by claim and plaintiff by plaintiff, you realize there's a whole litany of allegations here that really have to do with third parties that are not before the Court. I did want to briefly address the point that your Honor made about whether this is really a case of religious discrimination. And there are a lot of conclusionary allegations in the complaint about how the so-called dissidents are being discriminated against on the basis of their religion. But as Mr. Sussman conceded when he said that his explanation was beyond the complaint, there isn't actually any explanation in here at all of any belief that supposedly differs between the dissidents on the one hand and the so-called majority congregation on the other. They're all Satmar Hasidim, and as far as the complaint goes -THE COURT: Isn't there -- I mean I don't know whether I can look at this for these purposes, but there are certainly many reported cases involving these two groups, and the heart it would seem of the difference is the one that Mr. Sussman mentioned as who should be the leader and make the religious determination as the leader and pass on the religious creed. And there the two sides have obvious differences. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

20 18VTKIR1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. GIMBEL: There is a difference there, and we cited a case that I think is actually directly on point on this, this is the Nachman Brach case, which is unpublished, so we put in as Exhibit L to my declaration. THE COURT: Let me pull that out. Hold on just one second. MR. GIMBEL: And the case considers the question of whether discrimination on the basis of the failure to accept the legitimacy of a particular leader is discrimination on the basis of religion for purposes of the Section 1985 claim. And the Court concludes in that case that in fact it's not discrimination on the basis of religion. There's really one religion here, the Satmar Hasidim, and it's really just discrimination on basis of the failure to accept a particular rabbi, which is something else entirely. THE COURT: This is very helpful, and I need to read it in more detail, but is that really true? Supposing you have, as I think historically is the case many times, two Catholic groups, one of whom says the Pope is Joe and the other of who says the Pope is Sam. If I recall my history right, that was an issue that came up repeatedly in the Middle Ages, and there were very substantial disagreements as to who was the real Pope. And that was critical and people died because of that difference, because the Pope was viewed not just simply as we might view it someone who is the leader for the moment, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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21 18VTKIR1 because as the whole embodiment of the religion, the person who was vested with the power to determine what was religiously correct and incorrect and to determine that for ages to come. Why isn't that a religious difference? (Continued on next page)

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22 argument MR. GIMBER: Well, I think when you have a religious difference that is just to who the leader is, who the rabbi is so to speak, that really what you have is an internecine, intramural dispute within a single religion that doesn't bring in the same -- bring into play the whole range of concerns about discrimination on the basis of religious creed. Now, it is of course true that religion could develop over time, I suppose, if there were real differences in creed that developed over time by operation of differences in leadership but, again, those differences haven't been pleaded in this complaint. Mr. Sussman talks about differences over whether Israel is a state but that is not pleaded nor is it explained that that's somehow a function of religious creed. Mr. Sussman talks about how one group -THE COURT: I agree, but on the other hand he was up front that that wasn't in the complaint. MR. GIMBEL: Right. THE COURT: I said if that were critical I might allow amendment for that purpose, but what he is representing is that their views towards Israel follow about their views about the Messiah and things of that sort and the Messianic, the nature of the Messianic views; that would be a fairly central religious difference. If he is correct would it be. MR. GIMBEL: It could be a central religious SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 18V5kir2

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23 18V5kir2 argument difference but the answer is we don't know what we are shooting at because it hasn't been identified in the complaint. THE COURT: Go ahead. I'm sorry. MR. GIMBEL: So, getting back, if I may, your Honor, I think that they have a community derivative claim, we have addressed that; that's one aspect of the establishment clause. The other principal reason that they seem to say there is an establishment clause violation is there is supposedly interlocking leadership between the dominant congregation and the village and there are a couple of answers I think to this argument and the first is that it is res judicata in that these very same allegations were raised in Waldman I and Waldman II and in the Casheratam litigation before your Honor and there is a good discussion of this in the Second Circuit's opinion in this in Waldman II which talks about all of the allegations that were made in support of various claims and, sure enough, allegation of interlocking leadership was in all of the past complaints. But, getting beyond that hurdle, I think it goes to there is another defect which is that the whole establishment clause theory here has been discredited and that is to say the theory that it is an establishment of religion to have members in the clergy serve in government and the Supreme Court in the McDaniel case considered essentially just this argument, it considered a Tennessee law that disqualified clergy from SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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24 18V5kir2 argument serving as delegates to a constitutional convention. And Tennessee came in and defended the law and said, look, this law is necessary to prevent an establishment of religion because if we let these clergy members serve in public office what they're going to do is they're going to favor their sect and they're going to thwart the objectives of other religious sects. The Court rejected that rationale. First of all, it says there is no reason to suspect that someone who is a member of the clergy will necessarily favor one sect over another but beyond that it -- and this is critical -- it said that if you hold that it is an establishment clause violation for a clergy member to serve in public office then what you are really doing at the end of the day is penalizing members of the clergy for exercising their religious rights to become members of the clergy by withholding political rights. And so, at end of the day you can't bring an establishment clause claim based purely on the theory that there is interlocking leadership between a particular religious organization and village government. You have got to do something more. And I think the something more is really what we don't have. THE COURT: The reason I start off with the community room claim is because it was the one I had the most questions about. There are so many claims here that I don't want to have SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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25 18V5kir2 argument counsel spend what would take, I'm sure, far into the evening to discuss each and every claim but I will give each side the opportunity if there is something you particularly wanted to respond to or particularly wanted to stress that you felt that it was not perhaps covered as fully in your briefs as you ideally would like, this would be the time to cover it. So, with that sort of cabining, again, let's hear first from movant's counsel and then from plaintiff's counsel. MR. GIMBEL: Well, with those guidelines in mind I would make a couple of brief points, your Honor. The first is that there is a whole universe of claims in this case that fall into a legal category called been there and done that and those, of course, are the claims that were litigated and decided up and down in state court and refer here in particular to the so-called Bais Joel claims that have to do with Bais Joel's desires, supposed desire to use a residential apartment as a synagogue where it can hold services for hundreds of people there are two state court decisions that say that can't be done unless it gets expanded easements because the property in question is limited residential easements for access and for utilities and there is a requirement embedded in those state court decisions that you go to the village and you get municipal approval and you prove that you have expanded easement rights before you engage in any religious services here. And I think what Mr. Sussman's clients are attempting to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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26 18V5kir2 argument do here is relitigate that issue yet again under establishment clause theories free exercise theories and so that falls in the been there and done that category. Mr. Sussman, and we only touched upon briefly on reply, says that there were two sort of -THE COURT: I like the doctrine of been there done that, it has so much better ring than res judicata and collateral estoppel. MR. GIMBEL: I'm terrible at pronouncing Latin. THE COURT: Go ahead. MR. GIMBEL: Mr. Sussman tries to avoid preclusion for two reasons and I want to touch on those. He says, number one, that the town -- that he is really focused on two independent fact patterns that weren't before the Court in the prior litigations. He says, number one, there is a fact pattern that revolves around the village's attempt to thwart this application process for approval to use this single family residence as a synagogue and, number two, there is a fact pattern that revolved around what he calls a construction blitz which was some parking lot work that occurred outside of the residence and led to a fracas where some people were arrested. Neither of these arguments are sufficient to avoid res judicata. On the first one the village's supposed attempt to thwart the application process, there is really almost nothing pleaded in the complaint. There is an allegation that the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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27 18V5kir2 argument village failed to form a properly constituted zoning board but that claim was made in Bais Joel II. The second Bais Joel litigation in fact resulted in a judgment by the village that it would reconstitute the zoning board so that doesn't give rise to a claim here. There is a judgment that bars it that renders it moot. But, he again goes beyond the complaint in his opposition briefs, he introduced all these other allegations about how, first of all, after the zoning board was reconstituted he claims that it failed to act on the theory that in 1975 the Town of Monroe site plan gave them the permission they desired to use this for religious services. It is not pleaded in the complaint, number one. Number two, it is frivolous because this very same theory about the 1975 Town of Monroe site plan which allegedly was approved before the Village of Kiryas Joel was incorporated was litigated in State Court and rejected by State Court. So, the fact that the Village doesn't act on this discredited theory that has actually been ridiculed in the State Court decision really doesn't give rise to a claim. The second is that Mr. Sussman alleges that the Village hasn't acted on a site plan application that was supposedly submitted to use this property again for religious services and the critical point -- I would go on at length about this but the critical point here is that this site plan application that was submitted didn't address the elephant in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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28 18V5kir2 argument the room and the elephant in the room is that this single family residential property has been ruled by the state court to have limited residential easements and there is a state court ruling that says you can't use this as a synagogue until you obtain expanded easements from the surrounding land owners. So, this site plan application that goes in doesn't address this elephant in the room at all and in fact plaintiffs don't plead that they ever fulfilled this court ordered prerequisite to the expanded right that they're seeking. And so, to the extent that anyone is thwarting the plaintiffs it is the plaintiffs themselves and it is the plaintiffs' limited property rights. They've got a single-family apartment with an easement that says it can be used for residential purposes for access and utilities. You simply can't turn around and use that as a synagogue without invading the property rights of another party. And that is what is thwarting the use of this residence and nothing else, nothing on the part of the village. A couple other points, briefly. They attempt to bring a claim under the religious land use and institutionalized persons act based on this same allegations about the residents. It is barred because it is not ripe. There is a very clear Second Circuit decision in Murphy that says that before you bring this claim you have to have a final definitive decision from the local zoning authorities. They haven't done that because they haven't addressed this elephant in the room and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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29 18V5kir2 argument submitted a complete application and gone through the process. There are a bunch of selective -- equal protection and selective enforcement claims. There is a disparate taxation claim that dissidents in the village are discriminated against in the property taxes. This fails for lack of standing. There is no plaintiff in the case who claims injury and I think Mr. Sussman sort of abandons that claim in a footnote so it should be dismissed. There is a claim that the village discriminates by assessing municipal fees in a disparate manner. Again, this claim is barred for lack of standing. The parties who are affected are non-party organizations not before the Court and, for that matter, there is a prior litigation there, too. So, if anyone had standing to assert this claim it would be barred by prior federal case which resulted in stipulation and dismissal. Then we get to the remaining equal protection claim of public order noise and zoning ordinances and if you look at them again claim by claim, the critical defect here is that they don't plead an essential element of selective enforcement which is that a similarly situated party was treated differently. So, just by way of example, they have an allegation that Plaintiff Tenenbaum applied for a permit to hold a mass protest on a small residential street that houses an ambulance service and didn't receive his permit. Surprise, surprise. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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30 argument They don't allege that anybody else was granted a permit under similar circumstances or look to hold a protest without a permit. There is no similarly situated party. That same problem infects claims of selective enforcement from a whole bunch of the plaintiffs. I wouldn't go through them one by one here because they're all addressed. I do want to address briefly one legal argument that Mr. Sussman makes. He says that under the Second Circuit's decision in Pike v. Cuomo there is no need to plead disparate treatment of similarly situated parties and that actually just reads what is a very narrow holding in Pike far too broadly. Pike is a case that involved Native American plaintiffs who basically brought an equal protection claim on the theory that the State of New York had failed to protect them from very serious crimes, arson, murder, etc. over a period of years, and it is not a selective enforcement claim it is a you-failed-to-protect-us claim. What the Second Circuit says is, look, it would probably be impossible to find similarly situated parties in this case because the plaintiffs are Native Americans who reside on quasi-sovereign reservation, but in this particular kind of equal protection case it is sufficient if you go out and plead that the defendants acted out of discriminatory animus. But, what is critical to remember about Pike is that it goes on to draw a distinction: It says that's not true of selective prosecution. In a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 18V5kir2

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31 18V5kir2 argument selective prosecution claim you still have to go plead that similarly situated parties were not prosecuted, were treated differently. What we have here for the most part with equal protection claims are selective enforcement type claims where that requirement continues to apply. So, the only other point I would make for the moment, your Honor, is going back to the establishment clause, a couple of other things in support of this establishment clause, one is religious gerrymandering. I said plea but that was actually a mistake because if you look at complaint there are no allegations about religious gerrymandering but in their opposition briefs they claim that the boundaries of Kiryas Joel was drawn many years ago to ensure that the majority of the congregation would be in control and that that, in itself, is an establishment of religion and I think that also falls in the been there done that category because in the Waldman litigation that allegation was raised and also because the Supreme Court touched on it when it considered the validity of the Kiryas Joel School District. As you recall, the Supreme Court invalidated a special act of the legislature which created the school district but in doing so it drew a distinction and said we are not talking here about the formation of the village itself because that was done pursuant to a religiously neutral self-incorporation scheme that is available to any citizen of the State of New York and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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32 18V5kir2 argument according to objective criteria -- and Justice Kennedy explained -- that in a concurrence that that really doesn't raise establishment clause concerns because you have private citizens coming in and take advantage of the neutral statute to create a community and that doesn't suggest a governmental act to endorse religion. And also that if you were to hold that that was enough to simply indicate the establishment clause you get into a problem because what you would do at the end of the day is you would be saying that religious individuals who choose to live together can't take advantage of self-governance rights that are extended to all other citizens in the state to form villages pursuant to this legal statute. And the remaining establishment clause arguments I really think are attempts to resurrect otherwise defective claims under an establishment clause theory so they're allegations that the time-barred election fraud example, for example Mr. Sussman says, well, that proves an establishment clause violation. But there is no exception to the statute of limitations for establishment clause claims and you can't resuscitate stale claims under another legal theory. At the end of the day the whole just isn't greater than the sum of its defective parts and the establishment clause claim should be dismissed. THE COURT: Thank you very much. Let me hear from Mr. Sussman. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

33 18V5kir2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SUSSMAN: defendants. THE COURT: I'm sorry, yes. Does anyone else want to speak. MR. MAHON: Your Honor, I would like to speak. Richard Mahon for defendants the Congregation and David Ekstein. THE COURT: Okay. Actually, bear with me one half second. (Pause) Go ahead. MR. MAHON: Thank you, your Honor. Your Honor, I will not repeat the points that Mr. Gimbel so amply made. I want to focus on the one claim that he didn't talk about and that is conspiracy claim. Of all the claims in the complaint it is by far the weakest claim and you may not recognize the name David Ekstein because it only appears in two paragraphs in the entire complaint and everybody had all the right cases but nobody really tied it together, your Honor, and I just want to clarify. If you look at all the cases with the Second Circuit in the various districts the essential elements you can distill from all the cases. If you are going to plead conspiracy under Section 1985 you have to show facially specific overt acts, you have to plead those acts, you have to plead an agreement, you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 argument I think others may want to speak for

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34 18V5kir2 argument have got to plead joint action; a particular end, often unlawful or discriminatory end, intention to enter into a conspiracy and a meeting of the minds of the alleged co-conspirators. Nowhere in all 427 allegations is that anywhere mentioned, your Honor. Like Mr. Sussman I have a long history in the community. I've spent 20 years involved in various litigation. I tried the case involving Judge Owen and Bais Joel. I also was involved in a case before Judge Elaine Slobod last year where she dismissed all these claims based on res judicata grounds. The one other point, your Honor -- again, I'm going to cut right to it -- the other point is that there is the allegation or suggestion that a CYL congregation closed the shul and all of the cases, whether it is the Supreme Court level cases or the appellate division cases are before the Court. The Courts closed this down. This was intended to be simply an apartment and what was indicated in the papers is that there is no surrounding land, it is literally a footprint. It is as if, your Honor, somebody conveyed a wing of your house, your living room to somebody else without any kind of easements for access, for parking, for anything of that nature. And so, there was a problem created years ago which is beyond the scope of this litigation and now it is coming to roost now. We have an apartment that was never intended to be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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35 18V5kir2 argument a house of worship. The courts saw that and the courts closed it down. We also applied to the Appellate Division to enforce that because after the order closing it down they continued to operate. Judge Owen rendered an order of contempt. That was also affirmed by the Appellate Division. In total, your Honor, we had four or five years of continuous litigation, we had a trial in the matter. I have been to the Appellate Division at least six times on this issue. Of all the claims in the complaint conspiracy is the one that is the weakest of all, your Honor. THE COURT: Thank you very much. What I infer from what you just said is that the sad state of the legal economy would not be a problem if all communities were like Kiryas Joel. But, let's hear now from plaintiff's counsel. MR. SUSSMAN: Thank you, Judge. I think, your Honor, I would like to start with the standing analysis since that was raised. I think the current leading case is pronounced Nnebe, 644 F.3d 147. Counsel for the village has stated that there is standing with regard to the Kiryas Joel Alliance because with regard to the area of security, the complaint makes clear that monies have been expended by that organization, its resources have been expended in order to protect its members in light of the conduct of the village and he says, okay, there may be standing there but that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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36 18V5kir2 argument standing is only with regard to that claim, not other claims. Your Honor, I think that if there is standing for the organization to protect its members which is part of its organizational purpose, and that standing relates to its own expenditure of resources, it is predictable in the future based on the pervasiveness of what is alleged in the complaint that that standing can be cabined to a particular claim. The standing relates to the establishment clause because the police activity which we have alleged in great detail is activity, your Honor, which pervades the community and is reflective of the preference which the police agency has demonstrated over a long period of time against one group and for the other. Now, the analysis in Nnebe states, and I'm quoting, this is at 157: We have recognized that only a "perceptible impairment" of an organizations activities is necessary for there being an injury in fact citing Reglan, 6 F.3d to 698. And it is clear reading the standing decision which is, as the Court mentioned, represents a somewhat peculiar doctrine. Organizations are distinct from corporations even though both have members and really should be able to advocate for their members but applying these you must do that, it is the Second Circuit law, we clearly have standing for Kiryas Joel Alliance and I would suggest if that standing is not limited to one area it is limited to the establishment claim. Now, counsel raised a number of other issues and, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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37 18V5kir2 argument again, I think the case law should be looked at carefully. McDaniel is a Second Circuit case cited at 435 U.S. 618, 98 Supreme Court 1322 is entirely inapposite to this controversy. It has nothing to do with this case. We have never taken the position that a religious person, because of his religion, should be barred from office. Frankly, from my point of view, that is an absurd position and I think the Supreme Court in McDaniel is exactly right. There can't be a speculation that by dint of religious faith someone will violate the Constitution. And that's clearly not our position. Our position is that over a long period of time and through acts both long and short in time from here there has been a continual intermingling of church, state, and Kiryas Joel such that -- such that -- persons of particular -- and the Court, by the way, not the same provision in the consent decree in 1997, limiting individuals to serve in particular ways not because of their religious status but because of their conduct and it is their conduct which is relevant and it is their conduct which has violated the Constitution, not their membership, not the fact that they're an orthodox or Hasidic Jew. That's not the issue. The Supreme Court has no evidence that McDaniel, who was the plaintiff there and the petitioner in the Supreme Court or anyone else had in fact used or misused their position. That wasn't the issue. It was dealing with the statute and the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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38 18V5kir2 argument statute's unconstitutional prohibition. So, I would suggest to the Court that McDaniel bears no relevance here and the Court should disregard that argument. Now, with regard to establishment -- and I will try to pronounce it correctly -- the Hsu case which I believe is cited at 885 F.3d 839 and is cited by defendants; that case, your Honor, sets forth, I think, the contemporary understanding of the establishment clause and let me just again cite to the Court some paragraphs we think it puts in perspective what we are saying. It said rather Lemon's purpose -- the purpose requirement from Lemon aims at preventing the relevant governmental decision-maker from abandoning neutrality and acting with the intent of promoting the particular point of view in religious matters. Now, that's precisely what we are arguing has occurred here. The government in Kiryas Joel through the myriad of practice we have cited has in fact endorsed a particular point of view in religious matters. Where an individual wants to make religious proclamations of a particular sort we alleged, and it has to be taken as accurate for purposes of this complaint, to get an escort from the public services chief Mr. Vitreal so they can in fact go around the community breaking the noise ordinance and he says that there are no comparators and that's not true, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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39 18V5kir2 argument there are clear comparators. Breaking the noise ordinance goes with the public safety commissioner. He does not have a permit by our allegations to do what he is doing but he is allowed to go do with an escort and he spreads vitreal hatred toward our group. His content of speech is religious in nature and it is being facilitated by the public officer that is the police chief. It is not really a police department, he is head constable but for all purposes the same function. Whereas when our individuals indicate that they want to engage in speech, public speech and try to seek the permit from the government, they're denied the permit. That's alleged in the complaint. You have the use of government to foster a particular religious message and that's the heart of the matter and that is what Hsu speaks of when it speaks of abandoning neutrality and acting with the intent of promoting a particular point of view in religious matters. It is a religious matter, the who can marry you, it is a religious matter. What is the consequence of your being married by a rabbi that we don't endorse in a facility that is outside of the community that we don't endorse? The consequence in Kiryas Joel is you get rocks thrown at you in the street. And that is what is in the complaint. Nothing less. This is an academic discussion, it is an intellectual discussion but it has to be infused with the reality of street life there. It will be and the complaint, as pro lix as it may SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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40 18V5kir2 argument be, is pro lix because he tries to bring that to the Court. Now, that issue has never been litigated anywhere. All this res judicata in this case is about one single issue which I will address so when you hear about res judicata it is not res judicata of the whole establishment clause claim, it is res judicata by a single instance that we allege with regard to the synagogue. It hasn't been anywhere and there is no claim that it has been in any of the pro lix papers. None. Now, this is the other part of Hsu that is relevant. The lawsuit is not unconstitutional simply because it allows churches to advance religion which is their purpose. Again, we are not arguing about that. It must be fair to say the government itself has advanced religion through its own activities and influence and this takes us back to the community room example we started with. The example that we use, because it is so central, is the government intruding in the building process which it can go in New York, as you know the government can say if you are a developer you have to contribute something, usually done for park land under New York State law. Here what they're doing is a community room but they're doing it understanding -- understanding -- and pressuring -- and this is in the complaint, the specific developer that that community room be used for religious purposes by the majority community. I don't see how government can advance religion through its activities and influence, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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41 18V5kir2 argument quoting, and this is a Supreme Court case here, Lemon, any more directly and it is in the complaint and has to be taken as true. Again, counsel citing cases which are many of them summary judgment cases, we're at a motion to dismiss stage now and we have not had full disclosure by the village. One of the village counsel writes it is absurd for us to complain about FOIA but it is not absurd. We have a Rule 112 obligation, as the Court very well knows, and part of that obligation is implemented by trying to get information from this government about what the government has done with similarly situated properties and there are a number, probably 250 FOIA requests which have been made by us, by our clients, none of them have been responded to by this government. None. And there is a reason for that: Transparency, transparency, transparency, and they want none of it and that's why we are desperate to get on with this litigation. They have entirely stonewalled so that the political process cannot work because, as you know, the lifeblood of political process is information. And if information is maintained by the government and the government does not release it despite state laws requiring that release, this is what we get. Now, what I'm suggesting, though, is that Hsu sets the proper parameters for the analysis and the complaint SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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42 18V5kir2 argument sufficiently indicates in all of the areas -- and I know there is something about a contrivance going on here. We are not in the complaint arguing and I want to be clear with the Court on this that the taxation policy, the sanitation fee policy, we are not setting those forth to get relief from them directly. Our objective is to, as you know, dismantle the village because inherent in the village's operation over time is a discrimination manifest in those areas. We are using them as examples of that discrimination because there is an inherency which has been played out, as I said earlier, in all spheres of social life in this village. If you look at every intersection between the people and the government -- and that's the same analysis that we used in Yonkers, that is what is relevant -- those intersections you will find the discrimination and that discrimination is pled in this complaint. It is not because we are seeking you to say go ahead and make for a fairer tax system, make for better sanitation fees so they're equal. We want to prove to you and to the jury that that discrimination has infected and tainted every aspect of their intersection and that is what is in this complaint and that is why it is as long as it is. And if it wasn't in there, they would say you don't have enough. You are not presenting evidence that there is this inherency. Inherency is what goes to the heart of religion claim here because if it was scattered, if it was advantageous, if it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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43 18V5kir2 argument didn't go on over a long period of time, the inherency that is required for radical relief -- and I have said to this Court radical relief and understand that, I have been around this block a few times -- and when we took over the Cleveland School System in 1979 with Judge Batista because the district would not fulfill the segregation order so when Judge Sand took over Yonkers with regard to housing, these were because of inherent issues. They weren't situational, they weren't passing, they were demonstrated over a long period of time. And while these remedies may now be out of fashion, the Supreme Court's decision in Milliken still applies. The nature of the violation and its scope dictates the nature of the remedy. And if we are right on the facts, if there is this systemic systematic discrimination across all spheres of social life, there is only one remedy. The Court can't run the village on a day-to-day basis. Now, let me address some of the other points -THE COURT: Well, all that you say is very interesting but the question of remedy is not before me on this motion. MR. SUSSMAN: But remedy is raised by Mr. Sokoloff's papers, as I'm sure you read, where he claims that the Court should now dictate that a remedy of the sort we seek is impermissible. And that is also referenced in some of other papers which is why I am addressing it. It hadn't been addressed in oral argument. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

18V5kir2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it.

44 argument THE COURT: That's enough. MR. SUSSMAN: I'm sorry. I won't speak any more about

THE COURT: What I am focused on at least are the issues of whether you have adequately pled your causes of action. MR. SUSSMAN: I understand and that's proper, obviously. Okay, counsel cites Grumet and he said what Grumet -he says what it stands for is that religious people, like every other individual, can get together and they can organize a community, self-government. That's what he says but he doesn't really read what Grumet says. This is what Justice Kennedy says and it is very important and pertinent to this case. This is at 2505, 512 U.S. 687 and then 114 Supreme Court 2481, 2505 and this is the language: And, again, people who share a common religious belief or lifestyle may live together without sacrificing the basic rights of self-governance that all American citizens enjoy comma -- comma -- so long as they do not use those rights to establish their religious faith. That's an aversion to the government they create and how that government functions vis-a-vis in similar minorities in their midst. If their intention in creating their own community is to discriminate against others who have a different creed or who practice their own creed in a different SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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45 18V5kir2 argument way as your example about Catholicism pointed out, they may not use government to that effect and that is what the case here is about. So, Grumet is relevant. It is relevant but it is not relevant for the point that counsel makes and I think if the Court reads that concurrence you will see that's the central point. Now, RLUPA was made some fun of but RLUPA is pertinent here and I will explain why it is pertinent here. And I'm going to cite to the Court the Coraleem case which is 664 F.Supp.2d 267 which is cited again by defendants. Counsel says that there needs to be final action which, of course, is the normal standard but as in the special education area if the court reads Heldman v. Sobol -- is everything okay? THE COURT: What was that sound? MR. SUSSMAN: Someone said something. I don't know what they said. THE COURT: Go ahead. MR. SUSSMAN: Thank you. The determination that was reached on the motion to dismiss by District Court Warren Eginton, Senior District Judge sitting by designation on that case in White Plains in this case out of Suffern, this is the language -THE COURT: I think he pronounces it Eginton. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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46 argument MR. SUSSMAN: Eginton, I'm sorry. Where an appeal to a zoning board would be feudal the plaintiff need not appeal to the board, citing the Second Circuit in Southview Associates v. Limit v. Bongards also citing Murphy 402 F.3d 349 which counsel cited. A property owner need not pursue such applications which a zoning agency has dug in its heels and made clear that all such applications will be denied. Now, the arguments that we present to the Court in this case as opposed to the state case with regard to Horizon and with regard to the Bais Joel Rabbi son's house have not been decided by the state court. Let's be, again, very clear of what is happening. We are not saying we don't need cite plan approval. That is not our position. Our position is we have sought site plan approval and this, first of all, they had no constituted board at all. Second of all, where they constituted a board we made presentations to the board. As we indicate months went on and we were thwarted. They have made clear they will not present us with even a review process. That is what we are saying. Now Judge Eginton, your Honor, was faced with the same kind of argument that is being made here and I'm pointing this out for the Court because it is so directly on point. Here is what he writes: "whether the application was inadequate and properly dismissed on its merits or was adequate and was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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47 18V5kir2 argument rejected in violation of RLUPA is a fact-based question better suited for summary judgment. What matters at this stage is whether private plaintiffs adequately pleaded that their variance was denied. That they did. So, my point is we have met the standard in this complaint and the argument that somebody attached, I think, 18 or 23 exhibits for the Court's review, that's not appropriate at this stage. I think Judge Eginton is correct in that and I don't think the Court should deal with it. It is a reality-based test from Murphy. Here is what the Court said: A case is ripe when the Court can look to a final definitive position from a local authority to assess precisely how they can use their property. We have that. We have a final definitive position from these individuals and, again, the complaint says they worked together, that they overlapped in their personnel, the head of the congregation is the mayor, that still existed, it existed in '97 and still does. It doesn't mean it the res judicata, it means it exists and it is still a factor in this new set of facts and events which we have right to complain about on the Waldman Second Circuit case from 2000. Eleven years have passed and we have been subjected to an exacerbation of conditions. So, my point is, as pled -- as pled -- we have gotten around res judicata. We have not focused on that, we are focused on what has happened after those discussions and the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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48 18V5kir2 argument irascible and recalcitrant position of the village controlled by the same individuals, the congregation. Now, there is some other technical points on this res judicata argument which go back to your decision actually, Judge. THE COURT: Yes. I am aware of that but I do need to bring this, somewhat, to a conclusion. MR. SUSSMAN: All right. I am bringing it to a conclusion. THE COURT: Okay. MR. SUSSMAN: I'm sorry. I'm sorry. THE COURT: No. No. I had a conference call at 6:00 which I just moved to 6:30 and I don't want to miss it again. MR. SUSSMAN: All right. I will simply cite to the Court, if the Court will allow me to, the Westchester Day case which, again, is a RLUPA case, the case is cited 504 F.3d 338, it is a Second Circuit case. I am citing to the Court page 351, specifically, and I'm going to then end. If the Court has a conference call I don't want to take more time. THE COURT: Thank you very much. MR. SOKOLOFF: Your Honor, if I may? 30 seconds. THE COURT: Go ahead. MR. SOKOLOFF: Brian Sokoloff, I represent the mayor and the individual trustees who are all sued in their official SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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49 18V5kir2 argument capacity. We made a motion to dismiss. In response, though, to that motion Mr. Sussman says he is dropping the case against those individuals. So, I would like to perhaps be the only individual who leaves the Court today with an order saying that they're out of the case. MR. SUSSMAN: Except, except -THE COURT: Except he said he wanted to sue them and to amend to sue them. MR. SUSSMAN: One. MR. SOKOLOFF: There is only one individual and no proposed -- no proposed complaint that I suggest has to be by motion. THE COURT: All right. Well, I will take that under advisement. MR. SUSSMAN: Thank you, Judge. THE COURT: I'm sorry to deprive you of your desire for an instant order but obviously there has been a concession there by the plaintiffs that will have operative effect in the near future. MR. SUSSMAN: Thank you, Judge. THE COURT: So, I need that -- I'm sure there are many other points that both sides want to make and I regret having to bring this to a close, but I think I have not been disappointed in the level of argument and you are bringing to me the thrust of most of your points and that is really very SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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50 18V5kir2 argument helpful to the Court. I will stay all proceedings in this court until I render a decision and I will try to get the decision out promptly. I have a trial going on now so it probably won't be until after that trial. That is a three-week trial but hopefully it will be soon after that. MR. SUSSMAN: Thank you very much, your Honor. THE COURT: So, I thank all counsel very much. o0o

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