The opinion of the court was delivered by: Weinstein, District Judge:
REVISED MEMORANDUM AND JUDGMENT OF DISMISSAL
A motion has been made to dismiss a complaint seeking a
declaration that key portions of the New York law regulating
cemeteries is unconstitutional. For the reasons indicated
below, the case must be dismissed.
Warschauer Sick Support Society ("Warschauer") was one of the
many fraternal organizations created in New York and elsewhere
in the late nineteenth and early twentieth centuries. During
that period, many Jewish immigrants formed mutual-aid societies
to ease the transition into American life. Known as
Landsmanshaftn (alternatively spelled Landsmannshaften or
Landsmanshaften), they provided aid to the sick, funds for
burial, a place to meet socially and sometimes to worship,
money to bring family members to the United States and other
social and cultural benefits. See, e.g., M. Weisser, A
Brotherhood of Memory: Jewish Landsmanshaftn in the New World
13, 22, 163-73, 219-21 (1985) (first of the cemeteries used
extensively by these groups was the Washington Cemetery in
Brooklyn, established in 1850); W. Mitchell, Mishpokhe: A Study
of New York City Jewish Family Clubs, 175-76 (1978).
Landsmanshaftn reached their peak in New York in the 1950s,
then numbering close to 6,000. Over time, however, as families
began to flourish, the immigrants died and their children
assimilated into American life, membership in the
Landsmanshaftn declined. Today, some of these once prosperous
organizations are close to insolvency; many have been legally
dissolved or have ceased to operate.
Some Landsmanshaftn and other organizations provide free
burial to those unable to afford it. See Hebrew Free Burial
Association, 1 Chesed 3 (1990, Nissan 5750) (member of the New
York Federation of Jewish Philanthropies) (appeal for donation
of unused burial plots for the poor). Jews regard dignified
burial performed according to traditional ritual as a basic
right to be performed for all. See 4 Encyclopedia Judaica
(Burial) 1515 (1978); Standard Jewish Encyclopedia, (Burials
and Burial Societies) 375 (rev. ed. 1966).
Warschauer purchased large tracts of grave sites at very
little cost in anticipation of the burial needs of its members.
With declining membership it attempted to divest itself of
surplus grave sites by first "donating" them to the Beth David
Cemetery, and now by sale at their market value.
New York law requires that before a cemetery plot may be sold
on the open market, it must first be offered to the cemetery at
the original purchase price plus 4% interest. See N.Y.
Not-For-Profit Corp. Law § 1513(c). This statutory price
constitutes but a small fraction of present market value.
Cemetery Board Directive 202.13 requires a cemetery to give
written notice to the Division of Cemeteries and to the
Insurance Department's Liquidation Bureau of an offer by a
Fraternal Benefit Society to sell back graves to the cemetery.
The cemetery cannot repurchase graves without the consent of
the State Cemetery Board. Because fraternal societies that
provide either funeral or cemetery benefits are subject to
regulation by the State Insurance Department, the Cemetery
Board may not approve a buy-back of graves unless the Insurance
Department consents. After being informed of Warschauer's
intentions, the Insurance Department suggested that the
organization be liquidated. See N.Y.Ins.Law § 7417.
Warschauer, appearing pro se through Mr. Sperman, brought
this action against the State of New York and others
challenging the constitutionality of the applicable state
statutes. It asserts that section 1513(c) of the Not-For-Profit
Corporation Law is an unconstitutional taking and is applied in
a manner inconsistent with the first amendment of the United
States Constitution. Warschauer also seeks to enjoin the New
York State Insurance Commissioner from commencing liquidation
proceedings against it.
The State moved to dismiss the complaint. Defendant's motion
was denied with leave to renew. Warschauer was granted
permission to proceed pro se through Mr. Sperman, but legal
representation for Warschauer was directed to be sought by the
Clerk of the court from our pro bono panel.
After several members of the pro bono panel refused to take
the case, the court requested a distinguished member of the bar
to undertake pro bono representation of plaintiff. The attorney
was fully capable of representing Warschauer in federal court,
in state administrative proceedings or in attempts to obtain
corrective legislation. He consulted with Mr. Sperman and
determined that he could not represent
Warschauer, given the relief that Mr. Sperman insisted upon.
At a subsequent hearing in this court, Mr. Sperman persisted
in his demand that Warschauer be allowed to sell its cemetery
plots at market price. He refused to consider an amendment to
the statute or forms of judicial or administrative relief, by
analogy to the cy-pres doctrine, which would allow Warschauer
to transfer the graves to the use of an organization that
provided free or low cost burial for needy Jews.
The essence of the taking claim is that Section 1513(c)
prohibits a plot owner from selling unless the plot is offered
first to the cemetery at the original purchase price, plus
simple interest at 4%. The statute, it is contended, is
confiscatory because the price of ...