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March 12, 1999


The opinion of the court was delivered by: Barrington D. Parker, Jr., District Judge.

Village resident brought § 1983 suit against village and its officials, housing authority and its director, and religious association and its leader, asserting, inter alia, that the existence and operation of the village as a theocracy violated the Establishment Clause of the First Amendment and the New York State Constitution, and seeking the dissolution of the village and damages. On defendants' motion to dismiss, the District Court, Barrington D. Parker, Jr., J., held that: (1) res judicata barred resident's claim against village and its officials, and (2) resident lacked standing to assert claim against village officials in their individual capacities, housing authority, its director, religious association, or its leader.

Ordered accordingly.

Plaintiff Joseph Waldman has asserted claims pursuant to 42 U.S.C. § 1983 against the Village of Kiryas Joel, its officials in their individual and official capacities, Vaad Hakiryah of Kiryas Joel, an association of the members of the Congregation Yetev Lev, and a former trustee and leader of the Vand Hakiryah, Meyer Hirsch. He also asserts claims against the Town of Monroe, the Orange County Board of Elections, and the Village of Kiryas Joel Housing Authority and its director, Moses Neuman ("Waldman II").

Waldman's first claim asserts, in essence, that the existence and operation of the Village as a theocracy violates the Establishment Clause of the First Amendment to the United States Constitution as well as the New York State Constitution. His second claim, which is not involved in this motion, asserts that the defendants have infringed his right to vote in violation of the Fourteenth Amendment to the United States Constitution and the New York Constitution. As relief, Waldman seeks, the dissolution of the Village and damages. The Village, its officials, the Housing Authority and Moses Neuman, and Vaad Hakiryah and Meyer Hirsch move pursuant to Fed.R.Civ.P.Rule 12(c) to dismiss Waldman's first claim based on res judicata and a lack of standing. For the reasons stated below, the motion is granted.


In deciding this motion brought under Fed.R.Civ.P.Rule 12(c), the same standards applicable to a motion under Rule 12(b)(6) apply. Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). Thus, the Court must accept the allegations in Waldman's complaint and construe them in his favor. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Gant v. Wallingford Bd of Educ., 69 F.3d 669, 673 (2d Cir. 1995). A defense of res judicata may be tested by a motion pursuant to Rule 12(q). See Yaba v. Roosevelt 961 F. Supp. 611, 615 n. 2 (S.D.N.Y. 1997). The Court may take notice of the submissions in prior actions that form the basis for the defense of res judi- cata. See Day v. Moscow, 955 F.2d 807, 811 (2d Cir. 1992) (when all relevant facts are shown by the court's own records, of which the court may take notice, res judi- cata may be tested on a Rule 12 motion); see also Shuttlesworth v. Birmingham, 394 U.S. 147, 157, 89 S.Ct. 935, 22 L.Ed.2d 62 (1969) (taking judicial notice of related case between same parties).

The following facts have been construed with these principles in mind. The Village of Kiryas Joel, in Orange County, New York is a religious enclave of Satmar Hasidim who are practitioners of a strict form of Judaism. The residents of Kiryas Joel are extremely religious people who make few concessions to the modern world and go to great lengths to avoid assimilation into it. They interpret the Torah strictly, segregate the sexes outside the home, speak Yiddish as their primary language, eschew television, radio and English language publications, and dress in distinctive ways. See Bd. of Educ. of Kiryas Joel v. Grumet et at., 512 U.S. 687, 690— 691, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994).

Plaintiff Joseph Waldman is a resident of the Village and a member of the Committee for the Well—Being of Kiryas Joel, a voluntary association concerned with the affairs of the Village. Waldman was a member of the main synagogue in the Village, Congregation Yetev Lev ("Congregation"), until he was expelled by the Congregation in 1989, and labeled a dissident. This action, as well as related litigation, discussed below, arise from what Waldman claims to be an on-going campaign of intimidation and religious-based harassment imposed on the Village and its dissidents by the theocracy that controls the congregation and dominates life in the village. Waldman's various complaints have challenged what he claims to be the pervasive and unconstitutional entwinement between secular and religious affairs in Kiryas Joel.

In October 1997, following earlier proceedings in this case, this Court granted Waldman a preliminary injunction requiring the movement of the polling place in the Village from the Congregation's synagogue to a neutral site after Waldman demonstrated that voting arrangements impermissibly burdened the right of Waldman and his fellow dissidents to vote in local elections. See Waldman v. Village of Kiryas Joel et at., 97 Civ 7506 (S.D.N Y Oct. 27, 1997).

The complaint in this action—Waldman II  — alleges that in
May 1989, Grand Rabbi Teitelbaum, Abraham Wieder, who at that point was
the deputy mayor of the Village, and Meyer Hirsch met with building
contractors doing business in the Village. The Grand Rabbi allegedly told
the contractors that in order to secure building permits from the
Village, contractors had to donate $10,000 to the Congregation for each
housing unit to be built. Village officials required residents to make
donations to the Congregation to obtain Village approval for any
improvements or additions to their property. Further, Village officials
also required donations to the Congregation from dissidents when their
contractors applied for building permits. At the same May 1989 meeting,
the Grand Rabbi also allegedly ordered that no one would be permitted to
reside in the Village without the prior written permission of the
Congregation. Further, Abraham Weider, has allegedly announced that the
Village will not enforce the laws of the State of New York when they
conflict with Jewish law.

Since 1989, Village officials allegedly have denied dissidents apartments in both public and private housing. On or about July 1996, the Director of the Kiryas Joel Housing Authority, Moses Neuman, allegedly told Alter Goldberger that because he had been expelled from the Congregation, he would never obtain housing in the Village. Goldberger nonetheless applied for an apartment in a public housing apartment, and learned in January 1997, that he had been eliminated from the lottery for public housing. In October 1996, Neuman allegedly refused to give a housing application to Natan Hecht, again, because of his association with religious dissidents.

In June 1997, members of the Committee for the Well-being of Kiryas Joel allegedly notified the Village Board of its intention to hold a peaceful demonstration in Sanz Court where the Rabbi lives. Sanz Court is a public street in the Village. In response, the Village Board passed an ordinance prohibiting anyone who did not live on Sanz Court from walking on that street. These allegations form the basis of Waldman II.

Waldman II  follows on the heels of prior litigation arising from
religious and political differences within the Village. In 1995,
Waldman's brother Zalman Waldman along with Meyer Deutsch, A.H. Weinstock
and Khal Charidim Kiryas Joel, a religious corporation which operates as
a congregation, brought suit in the Southern District of New York,
against the Village, the mayor of the Village, Leopold Lefkowitz and the
deputy mayor of the Village, Abraham Weider. Joseph Waldman was the party
representative of Khal Charidim. See Khal Charidim Kiryas Joel, Zalman
Waldman, Meyer Deutsch & A.H. Weinstock v. Village of Kiryas Joel,
Leopold Lefkowitz Mayor, and Abraham Weider, Deputy Mayor, Village of
Kiryas Joel, 95 Civ. 8378 (Rakoff, J.) ("Khal Charidim").
In Khal Charidim,  the plaintiffs alleged that the defendants wrongly
deprived them of a place to assemble and to pray. Allegedly, when the
plaintiffs announced their intention to use a building on 3 Van Buren
Drive for religious services, the defendants cited the owners of the
building for numerous violations of building, zoning and sewer laws and
imposed heavy fines on them.
The plaintiffs in Khal Charidim  also claimed they had been deprived of
equal protection and that the defendants had violated their rights to the
free exercise of religion and to freedom of assembly. For relief, the
plaintiffs requested the Court to strike, as unconstitutional, the
provision in the Village's zoning ordinance that required any building
functioning as a synagogue to be located on a minimum of two acres,
compensatory and punitive damages and attorneys' fees.

In early 1997, Joseph Waldman, along with the Committee for the Well-being for Kiryas Joel, Nathan Hecht and Atler Goldberger sued the Village of Kiryas Joel, and Moses Neuman as the Housing Director of Kiryas Joel in this Court. See Waldman, et al. v. Village of Kiryas Joel, Housing Director of the Village of Kiryas Joel, Henry Cisneros, Secretary of the United States Department of Housing and Urban Development, and Joseph B. Lynch, Commissioner of the New York State Division of Housing and Community Renewal, 97 Civ. 74 (S.D.N.Y. Jones, J.) ("Waldman I").

In Waldman I,  the plaintiffs described the Village's residents as
deeply religious individuals and contended that the plaintiffs' open
pursuit of their religious beliefs had resulted in their expulsion from
the Congregation and in the expulsion of their children from the
Congregation's religious school. The plaintiffs alleged that the Village
had a policy of requiring religious approval prior to the sale or rental
of dwelling units and that a $10,000 contribution to the Congregation was
required to build or sell housing units in the Village. The plaintiffs
also alleged that Neuman told Hecht and Goldberger that neither they, nor
any other dissident, would be allowed to enter the Village's housing
projects or secure an apartment in them.
Waldman I  alleged that the conduct described constituted an ongoing
governmental policy to advance religion and amounted to an excessive
entanglement of the government with religion. Specifically, the complaint
in Waldman I alleged:
  By virtue of the conduct herein alleged, the
  defendants deprived, and are continuing to
  deprive, plaintiff Waldman, individually, and
  plaintiff Committee, collectively, of the
  rights, privileges and immunities secured by
  the Constitution of the United States,
  specifically: he right of plaintiffs under
  the First Amendment, as taxpayers, to be free
  from government funded religious practice, from
  governmental advancement of religion, and from
  governmental entanglement with religion.

For relief, the plaintiffs sought an order declaring that the defendants' conduct violated the Establishment and Free Exercise Clauses, the Equal Protection Clause, and the Fair Housing Act. The plaintiffs also sought a preliminary and permanent injunction barring the United States and New York State from delegating to the Village discretionary authority in the distribution of government subsidized dwelling units.

  Khal Charidim  went to trial beforere Judge Jed Rakoff in March 1997.
  Plaintiffs pre-trial brief stated: plaintiffs allege and shall prove
  that theocratic considerations underlie their mistreatment; they will
  show that the "majority' has established a state religion in Kiryas
  Joel, one impermissibly permeating all forms of secular an political
  life and that the oppression experienced by plaintiffs and those
  associated with them derives from their refusal to accept the
  dictates—in the secular sphere—imposed by this religious
  majority. Allowing such a regime to dominate political life is
  tantamount to allowing the domination by one religious sect of the
  political life of the community, the establishment of a state
  religion. Such an actuality violates the First Amendment's ban on
  establishment as inhibits the insular minority's right to freely
  exercise its own religious freedom.
According to the defendants in Waldman II,  these allegations are the
prelude to res judicata  since they reflect the close similarity of the
issues litigated in Khal Charidim  and those asserted in Waldman II.
Waldman, on the other hand, maintains that this language, in pre-trial
brief, did not purport to amend the complaint or to assert religious
fusion issues as claims. He also maintains that any trial evidence in
Khal Charidim addressing the fusion of religious and secular authority
was meant as background to discrimination claims and does not mean that
the fusion issues were litigated.
In the parties' joint pre-trial order in Khal Charidim,  however, the
plaintiffs listed, as issues of ultimate fact to be tried, their
contentions that: (1) there is a strong interlocking leadership in the
Village of Kiryas Joel between secular and religious institutions, (2)
the Village of Kiryas Joel government is an extension of the Congregation
Yetev. Lev and the rule of Grand Rabbi Moses Teitelbaum and his
appointee, Rabbi Aron Teitelbaum, and (3) the Village government is not
independent of religious control, but acts to maintain the religious
hegemony of the dominant congregation.
On the fifth day of trial in Khal Charidim the parties agreed to a
settlement. The Village agreed: (1) not to discriminate against any
person with regard to any service or benefit offered by the Village, (2)
to issue a permit for the facility on 3 Van Buren road, (3) to establish
with the plaintiffs a community relations board that would resolve any
grievances with respect to the distribution of services, (4) that members
of the Village school board would serve on no more than one board within
the Village, and (5) to pay $300,000 to Khal Charidim. The Court retained
jurisdiction to enforce the settlement. Finally, as part of the
settlement, the parties agreed to the dismissal, with prejudice, not only
of Khal Charidim, but also  Waldman I. The stipu lation of discontiuance
of Waldman I was filed on April 15, 1997.

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