The Village of Kiryas Joel lives to fight another day

Kiryas Joel is a village in Orange County, in my neck of the woods. The population is nearly 100 percent Hasidic, making the community something of an enclave quite unlike anyplace else in upstate New York. In 1994, the Supreme Court struck down the Kiryas Joel school district, finding that its existence violated the First Amendment's separation against church and state. Some Hasidic dissents in the community have tried over the years to strike down the existence of the village, but thus far they have been unsuccessful.

The case is Kiryas Joel Alliance v. Village of Kiryas Joel, a summary order issued on September 10. The village is an interesting place, and because of the dissident faction and the majority that runs the village, it has been the focus of extensive litigation over the years. Probably every other lawyer in Orange County has worked on at least one of these cases. The Second Circuit provides the backdrop:

The parties in this action and their various representatives have been embroiled in litigation in both state and federal courts for the past two decades. We briefly describe the genesis of their long-standing dispute, as it is described in the amended complaint. The Village of Kiryas Joel was incorporated in 1977 to serve as an enclave for followers of the Satmar Hasidic sect of Judaism. The Village is populated exclusively by followers of that sect, a majority of whom are members of defendant Congregation Yetev Lev D’Satmar of Kiryas Joel Plaintiffs are also followers of the Satmar Hasidic faith, but do not accept the legitimacy of Congregation Yetev’s current leader, the Grand Rebbe, Aron Teitelbaum, a relative of the original leader of the sect. Plaintiffs contend that because of their refusal to accept the current Grand Rebbe, they and other “dissidents” have been discriminated against in several ways by the Village, which, they allege, is run entirely by members of Congregation Yetev.

Plaintiffs also asserted an equal protection claim on the basis of intentional religious discrimination. The Second Circuit does not see it that way, even on this Rule 12 motion. "Plaintiffs have not plausibly alleged that defendants’ alleged actions were motivated by religious—as opposed to political—differences. Plaintiffs acknowledge that they share the same Satmar Hasidic faith as defendants, and the amended complaint does not identify different religious creeds adhered to by the majority faction and the 'dissident' population. Rather, as the district court concluded, the discord is, at its core, political. It reflects an acrimonious—but not essentially 'religious'—dispute over 'who should be the leader of . . . Satmar Hasidim.”

This case could have been quite explosive had the plaintiffs prevailed and convinced a federal court to strike down the village. As Judge Rakoff write in the district court opinion, "Plaintiffs, members of a 'dissident' population within defendant Village of Kiryas Joel, bring this action alleging that the Village is a 'theocracy,' the affairs of which are so 'inherently infused by, and entangled, with religion' that its 'very existence' violates the Establishment Clause of the First Amendment." But the case loses under Rule 12. The many cases that dissidents brought against the Village over the years create a res judicata problem in that past injustices have already been adjudicated by state courts. The plaintiff organization also lacks standing to protect the rights of non-members who may have been screwed by the Village leaders. As for the religious entanglement claim that predicates the dissolution claim, the Court of Appeals says that "plaintiffs’ current allegations about the overlapping leadership in the Village and Congregation Yetev, standing alone, are insufficient to state an Establishment Clause claim." 

Parents of disabled students have no right to "aversive interventions" under Federal law

Here's an interesting case: parents sued the State of New York because its prohibition against "aversive interventions" to help children with behavioral difficulties violates the student disability laws in denying them a free and appropriate education. An aversive intervention is one "that is intended to induce pain or discomfort to a student for the purpose of eliminating or reducing maladaptive behaviors." The Second Circuit says the state regulation is legal and does not deny the students their rights under federal law.


The case is Bryant v. New York State Education Department, decided on August 20. Yes, the aversive interventions may be unpleasant for the students, but the parents argue that, along with positive interventions (like treats, video games, music and field trips) these interventions are also in their best interest. Since the parents want to send their children to private schools with public funding, unless this regulation is found in violation of federal law, the school districts do not have to pay for this educational placement. So the parents send their children to the JRC school, where the aversive intervention looks harsh:

The types of aversive interventions used by JRC include helmets with safeguards that prevent removal, manual and mechanical restraints, and food-control programs. But, according to the complaint, JRC’s “principal form” of aversive intervention is electric skin shock, in which a 24 low-level electrical current is applied to a small area of the student’s skin (usually an arm or a leg). The shock lasts approximately two seconds, and is administered, on average, less than once a week. The complaint alleges that severe problematic behavior decreases with this regime, thus alleviating an impediment to academic progress. Possible side effects include temporary redness or marking, which clears up within a few minutes (or a few days at most), and a rare occurrence of blistering.

Harsh, but good for them, like Product 19 and Special K. Under the Individuals with Disabilities Education Act, disabled children are entitled to a free and appropriate public education. If the school district cannot provide that education, it has to pay for a reasonable private placement. In challenging the New York regulation against schools with aversive interventions, the parents argue that aversives are necessary to control the severe behavioral disorders that undermine the childrens' education. The Court of Appeals (Jacobs, Wesley and Sullivan [D.J.]) sees it differently and will not second-guess state educational policy in any event (a common refrain in cases that challenge specialized government policies in this area). Here's the crux of the decision:

Even if we assumed that permitting these children to receive aversive interventions would help them fulfill their potential, Plaintiffs’ substantive claim would still fail. The “IDEA does not require states to develop IEPs that ‘maximize the potential of handicapped children.’” The IDEA “guarantees” only that students with disabilities are provided an “‘appropriate’ education, not one that provides everything that might be thought desirable by loving parents.” A state satisfies its obligation to provide a free appropriate public education if it “provide[s] a disabled child with meaningful access to an education” even if the state “cannot guarantee totally successful results.” Defendants provide these students with meaningful access to education opportunities by authorizing and funding their specialized education and behavioral modification treatment at an out-of-state residential facility that has expertise in treating children with severe behavioral disorders. Aversive interventions may help maximize the children’s potential, but the IDEA does not require such measures. 

Concurrence highlights flaws in habeas corpus law

The Court of Appeals has reluctantly rejected a habeas claim filed by an inmate who says his lawyer failed him in criminal court over what may have been a coerced concession. The case generates some strong commentary from Judge Calabresi, who says the defendant might actually be innocent and that the habeas process set up by Congress and the Supreme Court has gone mad.

The case is Hawthorne v. Schneiderman, decided on August 20. Hawthorne was convicted in state court for criminal possession of a weapon and assault. After the crime was committed, Hawthorne was questioned by the police without his Miranda rights. At the suppression hearing, his lawyer did not cross examine the relevant law enforcement officers about the confession, though he did so at trial. The state appellate court did not address this issue other than to throw in the usual language to the effect that "the defendant's remaining contentions are without merit." The Second Circuit (Cabranes, Lohier and Calabresi) says that that state court's decision does not represent an unreasonable application of clearly established federal law because a conceivable argument could have been that "the evidence elicited by the defendant at trial would likewise have been elicited by competent counsel at the [suppression] hearing, and that that evidence did not merit suppression of the evidence."

Did you see where I said this was a "conceivable argument"? That's because the Appellate Division did not actually adopt that reason. The Second Circuit uses this hypothetical argument for purposes of determining whether the cursory treatment given the issue at the state appellate court satisfied federal habeas standards. The Second Circuit says it is constrained to reach this result based on precedent.

Judge Calabresi will have none of this. He suggests "this is one of the rare cases in which a habeas petitioner may well be innocent" because Hawthorne was convicted solely on the basis of a confession that he says was coerced. What bothers Calabresi is that habeas law has reached the point where we worry about technical errors that cast doubt on the fairness of the criminal conviction without worrying about guilt or innocence. In addition, Calabresi argues, federal courts have to think of a conceivable reason why the conviction might have passed constitutional muster in the state appellate courts, as in this case. He explains,

This is not comity. If anything, it is insulting to New York. We impute a view to its courts that they have never in fact espoused. We then deride that view as wrong, even clearly wrong under federal appellate court precedents, just not unreasonably wrong under prior Supreme Court holdings. But why should one assume that New York courts, if they actually considered the federal question involved, would decide it differently from the bulk of federal appellate courts?

The better approach, Judge Calabresi suggests, is for state courts to have the option of dispensing with the constitutional arguments and to allow the federal courts to deal with them on a habeas petition. "This would advance AEDPA’s purpose of ensuring meaningful habeas review while preventing the statute from imposing—contrary to its purposes—an unmanageable burden on state courts to police federal law. State courts would be free to decide issues of federal law if they wished, and when they did, federal courts would be required to defer to them. But state courts would not be forced to take on that task if they preferred not to." However, the Second Circuit has rejected this approach. This forces Judge Calabresi to concur in the judgment.

Court upholds religious discrimination judgment in Town-Church dispute

The Court of Appeals has upheld a judgment in favor of a church that sued a Westchester County community for religious discrimination after the Town of Greenburgh interfered with the plaintiffs' efforts to build a new church. This ruling has several broad holdings that expand the rights of religious plaintiffs to challenge governmental decisions that substantially burden land-use decisions.

The case is Fortress Bible Church v. Feiner, decided on September 24. This case reached the Second Circuit after a 26-day bench trial. In light of the standard of review on appeal, which defers to the trial court's factual findings, the Second Circuit's summary of the church's efforts to build a new facility on its property can be summed up like this: the Town screwed over the church in imposing burdensome conditions for SEQRA (or environmental impact) approval. One twist here is that the Town Supervisor, Paul Feiner, was concerned about the church's tax-exempt status and wanted the church to donate a fire truck in lieu of taxes. This is among the reasons why Judge Robinson said the Town acted in bad faith and violated the Religious Land Use and Institutionalized Persons Act (RLUIPA), the Free Exercise and the Equal Protection Clause.

Here's how the Court of Appeals affirms the district court's ruling. First, it holds for the first time that the Town can violate RLUIPA by abusing the SEQRA process. RLUIPA deals with zoning laws that infringe on religious rights. While SEQRA is not really a zoning law, the Town used SEQRA review as a vehicle for determining the zoning issues related to the church's land use proposal. "The Town's actions during the review process and its denial of the Church's proposal constituted an application of its zoning laws sufficient to implicate RLUIPA." This is a far-reaching ruling.

Second, the Town imposed a substantial burden on plaintiffs' religious rights in violation of RLUIPA. The Town acted in bad faith in imposing unreasonable barriers that prevented the church from going forward with a necessary expansion. The Second Circuit credits the district court's analysis in finding that the Town acted arbitrarily and disingenuously and manipulated the SEQRA process to derail the church's project "after it refused to accede to its demand for a payment in lieu of taxes."

Third, the church has a free exercise claim under the First Amendment. After sidestepping whether cases like this require strict scrutiny or rational basis review, the Court says that the Town denied the church's application without any rational basis and that the Town's witnesses at trial were not credible.

Fourth, the church has a viable "class of one" claim under the Equal Protection Clause. While the church did not identify a single one-on-one comparator, it proved through multiple comparators that the conditions that the Town imposed in the project were not applied to other projects. Here is another broad rule applied by the Court: "Where, as here, the issues compared are discrete and not cumulative or affected by the character of the project as a whole, multiple comparators are sufficient so long as the issues being compared are so similar that differential treatment cannot be explained by anything other than discrimination." The Church wins this claim because it "provided overwhelming evidence that its application was singled out by the Town for disparate treatment."

Absolute immunity for prosecutors in Monserrate domestic violence case

As a matter of law, some people cannot be sued. No matter what they do, it seems. That's the rule in this case involving domestic violence committed by a former New York State Senator.

The case is Giraldo v. Kessler, decided on September 14. Giaraldo was Hiram Monserrate's girlfriend. The police interrogated her against her will when they had reason to believe that Monserrate hit her in the face with a drinking glass. Monserrate was in the State Senate when this happened. For those of you who live outside the State of New York, this is the kind of social degenerate who gets elected to state government in New York from time time. Anyway, Giraldo did not want to answer police questions about the assault, and she denied that Monserrate had done anything wrong and that the whole thing was an accident when he brought her "glass of water that broke, causing shards to fly and cut her forehead." No matter. The police held her against her will for five hours and "ordered" her to sign a statement implicating Monserrate in the assault, to no avail. Then the prosecutors got involved. They also held Giraldo against her will for two hours. Giraldo sues the prosecutors under the Fourth Amendment. (She also sues the police, but that claim is not on appeal).

Plaintiffs' lawyers are often asked by potential clients if they can sue the prosecutor who pursued criminal charges against them. Sometimes, these charges are dismissed or dropped or the jury acquits the defendant. Understandably, the defendant wants to remedy this possible injustice. The courts will not allow it, for obvious reasons. If prosecutors were on the hook each time someone is acquitted, they would be sued out of existence.

Can you sue the prosecutors in this case? After all, Giraldo was not charged with anything. She was hassled by the prosecutors. That's a distinction, true, but she cannot sue the prosecutors in any event. They have absolute immunity. The district court allowed this claim to go forward, but the Court of Appeals (Winter, Cabranes and Carney) reverses and dismisses the claim against these defendants. "Prosecutorial immunity from Section 1983 liability is broadly defined, covering virtually all acts, regardless of motivation, associated with the prosecutor's function as an advocate." Tough to get around this standard. "Investigative acts reasonably related to decisions whether or not to begin or to carry on a particular criminal prosecution, or to defend a prosecution, are shielded by absolute immunity when done by prosecutors." Giraldo cannot sue the prosecutors because, at the time they interrogated her, Monserrate was arrested and the prosecutors had to make quick legal decisions about how to proceed. The interview, unpleasant as it was, was in preparation of a court proceeding in which the prosecutor acts as an advocate." Giraldo was an important witness in this proceeding, and the prosecutors had the right to personally assess her credibility when she tried to exonerate Monserrate.

District court gets around Garcetti in Mount Vernon retaliation case

Few First Amendment retaliation plaintiffs have been able to withstand a Garcetti defense in the Second Circuit ever since the Supreme Court said that public employees do not engage in protected speech if their whistleblowing or other statements are made pursuant to their official job duties. But some district courts are allowing these cases to proceed. This case is one of them.

The case is Stokes v. City of Mount Vernon, 2012 U.S. Dist. LEXIS 118386, a decision by Judge Briccetti on August 14. Stokes was the city's Inspector General. He prepared a report that slammed a city program called Payments in Lieu of Taxes, or PILOT, administered by the city's Industrial Development Agency and run by Maureen Walker. Stokes accused Walker of all sorts of misconduct and ethics violations. The City Council then passed a law abolishing the Inspector General's office. After a state court held that this legislative action violated state procedure, the City Counsel next voted to sharply reduce Stokes' salary, causing him to resign. Stokes sued the City, the mayor and members of the City Council, claiming they constructively discharged him in retaliation for his critical report on PILOT.

The Supreme Court held in Garcetti that public workers are not speaking as citizens when they speak pursuant to their official job duties. As Stokes prepared his report in his capacity as Inspector General, his claim against the City and the mayor is dismissed under Rule 12. They employed Stokes, and as brutal as it sounds, there is no First Amendment protection for his termination by the City and mayor as well as members of the Board of Estimate who also have some authority over Stokes (as they can fix his salary). That holding is not remarkable. What is remarkable is Judge Briccetti's finding that Stokes may pursue his First Amendment claim against members of the City Council because they do not have employment authority over Stokes. Members of the council belong the legislative branch; it is the executive branch, the mayor to be exact, which can appoint and remove the Inspector General. The councilmembers are not Stokes' employer. This is an issue of first impression in the Second Circuit. Adopting the reasoning from federal cases around the country, Judge Briccetti finds the "employer/employee distinction makes sense." The judge reasons:

The rationale for the Garcetti rule is that restricting speech owing its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created. The individual defendants [on the City Council] do not point out any hiring, firing, or employment authority they have over plaintiff. ... Therefore, the rationale underlying Garcetti is inapplicable and the Court cannot conclude that plaintiff's speech is not protected simply because the speech at issue may have occurred in the context of plaintiff's official job duties.

Other issues in the case: the district court says that the complaint states a claim for constructive discharge even though Stokes quit seven months after the City Council reduced his salary. Waiting too long to resign may kill the constructive discharge claim. But since Stokes tried to resolve his dispute with the city during that time, he resigned within a reasonable period of time. The district court also allows Stokes to proceed on his procedural due process because he had a property interest in his unelected position and there was no adequate post-deprivation remedy available since an Article 78 proceeding is not the proper vehicle to challenge legislative action. The substantive due process claim may also proceed because Stokes adequately alleges that defendants' conduct was arbitrary and outrageous.

The PLRA strikes again

In 1995, Congress made it harder for prisoners to file lawsuits. Under the Prison Litigation Reform Act, a prisoner that seeks in forma pauperis status cannot do so if he filed three frivolous lawsuits in the past. This case asks when is someone a "prisoner" under the PLRA.

The case is Gibson v. City of York, decided on August 14. Gibson sought in forma pauperis status because he could not afford to file his lawsuit, which alleged that officials at Kirby Forensic Psychiatric Facility violated his civil rights. If Gibson was a "prisoner" while at Kirby, he cannot file that lawsuit without paying the filing fee. Was he a prisoner? When we think of prisoners, we think of guys in the slammer, in lockup, in the big house, behind bars, in the joint, etc. What about a psychiatric facility where the plaintiff was sent after he allegedly committed a crime, to see if he could get treatment that would allow him to stand trial?

The Court of Appeals (Walker, Leval and Pooler) notes that "Under New York law, 'when a defendant is in the custody of the commissioner [of mental health] pursuant to a temporary order of observation . . . , the criminal action pending against the defendant in the court that issued such order is suspended until the superintendent of the institution in which the defendant is confined determines that he is no longer an incapacitated person.'” When people like Gibson are in places like Kirby, they are still in custody, even if they are not in the hoosegow. The Second Circuit concludes:

Because New York law explicitly specifies that the criminal proceedings against a person, such as Gibson, who is being held in a mental health institution pursuant to a temporary order of observation, are merely suspended during his confinement and observation—and only terminate if the person is still being held at the time the temporary order expires or the criminal charges at issue are otherwise dropped—we have little trouble concluding that Gibson was still a “person . . . detained in [a] facility who is accused of . . . [a] violation[] of criminal law” at the time he filed his complaint, and thus was a “prisoner” under the PLRA.