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Federal case could dissolve Kiryas Joel
Lawsuit claims village violates Constitution
By Chris Mckenna
Times Herald-Record
Published: 2:00 AM - 06/19/11

Kiryas Joel dissidents rolled the ultimate grenade into their enemies' tent last week with a federal lawsuit questioning the very existence of the village that the Satmar Hasidic community created 34 years ago.

Their argument — laid out by civil-rights attorney Michael Sussman and sharply disputed by village leaders and their supporters — is that the village discriminates against them because of religious differences, and that public and religious authority are so entwined in Kiryas Joel that it violates the constitutional separation of church and state.

But even if the plaintiffs prove they've been thwarted and unfairly treated as they allege, a big question is whether a judge would ever order the drastic remedy they proposed: dismantling the Village of Kiryas Joel.

The answer depends on whom you ask.

Ralph Stein, a Pace Law School professor who teaches constitutional law, sees no chance of that happening, based on what he read in the court complaint.

"As far as I'm concerned, it's a political polemic," Stein said. "It doesn't provide a legal basis for which the relief can be provided."

If the allegations are true, Stein said, what the dissidents are complaining about amounts to political corruption no different than Tammany Hall-style tactics, even if cloaked in religious garb. And corruption, he said, is no reason to dismantle a municipality.

If it were, Stein said, "I can't imagine how many times places like Boston, New York and Chicago would have been dissolved."

But Nomi Stolzenberg, a University of Southern California law professor who's co-writing a book on Kiryas Joel, argues that a political in-group abusing power for non-religious reasons is different under constitutional law than a "religious in-group that uses political power to suppress religious dissenters."

"Whether that in fact is what's going on in Kiryas Joel remains to be proved," she said. "But the idea that a religious group could capture political power and abuse its power by discriminating against groups that don't adhere to the beliefs of the dominant group — that is a very specific danger that the religion clauses were designed to combat."

Stolzenberg contends the case could hinge on which of two constitutional readings the judge uses.

The prevailing approach would likely find that the institutions of church and state are separate in Kiryas Joel, and therefore, permissible, she said. But a competing doctrine — she calls it the "get real" approach — might take a less lenient view.

"It's actually hard to predict how the federal judges are going to react to this," she said.

The dissidents' lawsuit tries to show unequal treatment in law enforcement, tax exemptions, elections and other areas through a series of examples. Village leaders say the claims have no merit, and insist they provide services to all residents without discrimination.

Joseph Waldman, a plaintiff in the case and a longtime thorn in the side of the village's leadership, brought a similar case in 1997 to try to get the village dissolved. A federal judge and then an appeals-court panel rejected his demand — but strictly because most of his allegations had just been tried in two previous lawsuits.

The appeals-court judges wrote that Waldman's claims didn't "establish the sort of pervasive and otherwise irremediable entanglement between church and state that would justify a drastic remedy like the dissolution of the village."

But they added: "All this is not to say that a series of future actions evincing an enduring and all-encompassing domination of the Village government by the Congregation could not at some point suffice to create a new cause of action for the dissolution of the village."

cmckenna@th-record.com


city of rajneeshpuram

One of the few precedents for the constitutional challenge Kiryas Joel dissidents have brought against their village is a 1983 case involving Rajneeshpuram, a religious enclave incorporated as a city in Oregon the previous year.

The community started in 1981, when followers of a spiritual leader named Bhagwan Shree Rajneesh bought a huge ranch in Wasco County. Within only three years, their commune grew into a city of 7,000 with its own police and fire departments, businesses and bus system.

By that time, the state had sued Rajneeshpuram in federal court, arguing that it had no obligation to recognize the municipal status of a city controlled by a religious organization.

A federal judge ruled in favor of Oregon in 1985. But the decision had little impact on Rajneeshpuram, because state and federal court battles had so depleted the group's resources that the city was soon bankrupt and empty.