No. 96-1397 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 VILLAGE OF AIRMONT, PETITIONER v. YITZCHOK LEBLANC-STERNBERG, ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION ______________ WALTER DELLINGER Acting Solicitor General ISABELLE KATZ PINZLER Acting Assistant Attorney General JESSICA DUNSAY SILVER MARIE K. MC ELDERLY Attorneys Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the court of appeals correctly upheld the validity of the terms of the injunction entered by the district court. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Opinions below . . . . 1 Jurisdiction . . . . 2 Statement . . . . 2 Argument . . . . 11 Conclusion . . . . 19 Appendix A . . . . 1a Appendix B . . . . 11a TABLE OF AUTHORITIES Cases: Braunfeld v. Brown, 366 U.S. 599 (1961) . . . . 16 Buchanan v. Warley, 245 U.S. 60 (1917) . . . . 13 Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) . . . . 15-16 Elrod v. Burns, 427 U.S. 347 (1976) . . . .15 Employment Div.j Dep`t of Human Resources v. Smith, 494 U.S. 872 (1990) . . . . 15 Farmer v. Brennan, 511 U.S. 825 (1994) . . . .14 First Assembly of God of Naples, Florida, Inc. v. Collier County: 20 F.3d 419, modified on denial of rehearing, 27 F.3d 526 (llth Cir. 1994), cert. denied, 513 U.S. 1080 (1995) . . . . 17, 18 27 F.3d 526 (11th Cir. 1994), cert. denied, 513 U.S. 1080 (1995) . . . . 18 Grosz v. City of Miami Beach, 721 F.2d 729 (llth Cir. 1983), cert. denied, 469 U.S. 827 (1984) . . . . 15, 17 Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926 (2d Cir.), aff'd, 488 U.S. 15 (1988) . . . . 13 (III) ---------------------------------------- Page Break ---------------------------------------- Iv Cases-Continued: Page Islamic Center of Mississippi, Inc. v. City of Starkville, 840 F.2d 293 (5th Cir 1988) . . . . 18 Keego Harbor Co. v. City of Keego Harbor, 657 F.2d 94 (6th Cir. 1981) . . . . 16-17 Lake wood, Ohio Congregation of Jehovah's Witnesses, Inc. v. City of Lakewood, 699 F.2d 303 (6th Cir.), cert. denied, 464 U.S. 815 (1983) . . . . 15, 16, 17 LeBlanc-Sternberg v. Fletcher: 763 F. Supp. 1246 (S.D.N.Y. 1991) . . . . 4-5 781 F. Supp. 261 (S.D.N.Y. 1991) . . . . 6 846 F. Supp. 294 (S.D.N.Y. 1994), aff'd in part, rev'd in part, dismissed in part, 67 F.3d 412 (2d Cir. 1995) . . . . 7, 8 67 F.3d 412 (2d Cir. 1995) . . . . passim Louisiana v. United States, 380 U.S. 145 (1965) . . . . 12 Milliken v. Bradley, 433 U.S. 267 (1977) . . . . 11 Pennsylvania v. West Virginia, 262 U.S. 553 (1923) . . . . 14 Sherbert v. Verner, 374 U.S. 398 (1963) . . . . 16 Swift & Co. v. United States, 276 U.S. 311 (1928) . . . . 14 Town of Huntington v. Huntington Branch, NAACP, 488 U.S. 15 (1988) . . . . 13 United States v. City of Parma, 661 F.2d 562 (6th Cir. 1981), cert. denied, 456 U.S. 926 (1982) . . 13 United States v. Village of Airmont, 839 F. Supp. 1054 (S.D.N.Y. 1993), rev'd, 67 F.3d 412 (2d Cir. 1995) . . . . 6, 7 Village of Airmont v. LeBlanc-Sternberg, cert. denied, 116 S. Ct. 2546 (1996) . . . .9 Wisconsin v. Yoder, 406 U.S. 205 (1972) . . . . 16 ---------------------------------------- Page Break ---------------------------------------- v Constitution, statutes and rule: Page U.S. Const.: Amend. I . . . . 4, 6, 8, 9, 15, 18 Amend. XIV, 5 . . . .16 Fair Housing Act, 42 U.S.C. 3601 et seq . . . . 4 42 U.S.C. 3602(i)(2) . . . .14 Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb et seq . . . .16 42 U.S.C. 1983 . . . . 9 42 U.S.C. 1985(3) . . . . 9 Fed. R. Civ. P. 50(b) . . . .7 ---------------------------------------- Page Break ---------------------------------------- OCTOBER TERM, 1996 No. 96-1397 VILLAGE OF AIRMONT, PETITIONER v. YITZCHOK LEBLANC-STERNBERG, ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals affirming the district court's entry of injunctive relief (App., infra, la-10a) is unpublished, but the decision is noted at 104 F.3d 355 (Table). 1. The earlier opinion of the court of appeals reversing the district court's original dis- missal of the case and denial of injunctive relief is reported at 67 F.3d 412. The opinion of the district court on remand (App., infra, 11a-29a) is reported at ___________________(footnotes) 1 Because the court of appeals' opinion as reproduced in the appendix to the petition (Pet. App. la-11a) contains typo- graphical errors that omit several lines of the opinion, that opinion is included in the appendix to this brief in opposition. (1) ---------------------------------------- Page Break ---------------------------------------- 2 922 F. Supp. 959, 2. and its order entering injunctive relief on remand (Pet. App. 12a-16a) is reported at 925 F. Supp. 160. The district court's supplemental order (Pet. App. 17a-18a) is unreported. JURISDICTION The judgment of the court of appeals was entered on December 6, 1996. The petition for a writ of certio- rari was filed on March 4, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATEMENT 1. a. This litigation arose out of the incorporation of the Village of Airmont, New York, in 1991. Prior to incorporation, the Airmont community was an un- incorporated area of the Town of Ramapo, New York. During the 1980s, the number of Orthodox Jews (including Hasidic Jews, a subgroup, of Orthodox Jewry) residing in Ramapo increased dramatically. LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 417 (2d Cir. 1995). In the mid-1980s, Ramapo accommodated the needs of Orthodox Jews for a place of worship near their homes by relying on a provision of its zoning code regarding "home professional office[s]," which permitted members of certain "learned professions," including clergy, to operate offices within their homes, subject to certain restrictions. Id. at 418. 3 ___________________(footnotes) 2 Because the appendix to the petition does not include the opinion of the district court, that opinion is included in the appendix to this brief in opposition. 3 Orthodox Jews cannot travel substantial distances to a place of worship for services or prayer because the tenets of Orthodox Judaism do not permit adherents to travel by auto- mobile or other mechanical means of transportation on the Sabbath or on certain religious holidays. LeBlanc-Sternberg, 67 F.3d at 417. Strict observance by Orthodox Jews requires daily ---------------------------------------- Page Break ---------------------------------------- 3 Ramapo interpreted the zoning code provision to per- mit rabbis to conduct worship services in their homes, subject to limitations on the number of per- sons who could gather at any given time. Ibid. In the Airmont area of Ramapo, a group of residents formed the Airmont Civic Association (ACA) and began efforts to incorporate Airmont as a village "because some of its members felt that the Town of Ramapo was adopting zoning measures unduly favorable to Hasidic Jews." App., infra, 13a. As an incorporated village, separate from Ramapo, Airmont would be able to have its own zoning code. LeBlanc- Sternberg, 67 F.3d at 418. The ACA sought incor- poration as a village with the expressed intent of keeping Orthodox and Hasidic Jews out of the Air- mont community. Id. at 418-419. A referendum on incorporation of Airmont was held on January 30, 1989, and the vote was in favor of incorporation by a margin of 3 to 1. Id. at 419. 4 ACA members went before the Ramapo Plan- ning Board to oppose respondent Rabbi LeBlanc- Sternberg's application to conduct worship services in his home. In the course of doing so, they expressed anti-Orthodox sentiments and stated that Orthodox ___________________(footnotes) worship, and certain prayers may be said only if a "minyan," i.e., a group of ten males at or above the age of thirteen, is present. Ibid. As a consequence, it is important for Orthodox Jews to live within walking distance of a place where they can congregate for worship. Ibid. 4 Formal incorporation was delayed, however, by litigation in state court challenging the manner in which the referendum was conducted. Meanwhile, the ACA continued to oppose ac- tions by the Town of Ramapo to approve zoning variances that would allow Orthodox Jewish houses of worship. LeBlanc- Sternberg, 67 F.3d at 419. ---------------------------------------- Page Break ---------------------------------------- 4 Jews should not have moved into the area, since they knew when they did so that there were no houses of worship. LeBlanc-Sternberg, 67 F.3d at 420. Ramapo initially denied the application, then twice approved it, but the ACA financed two successful state court challenges to the approvals. Ibid. Ramapo approved the application for a third time, including certain restrictions on the number of congregants and re- stricting the home worship to Jewish holidays and the Sabbath. Ibid. By then, the Village of Airmont was incorporated, and it decided not to pursue a third state court challenge. A village trustee and former ACA board member stated that the Village did not need to pursue another state court challenge since "there are other ways we can harass them." Ibid. b. The Village of Airmont was formally incor- porated on April 10, 1991. LeBlanc-Sternberg, 67 F.3d at 419. On April 12, 1991, the private respondents, a group of Orthodox Jewish residents of the Village of Airmont including Rabbi LeBlanc-Sternberg, filed a complaint in the United States District Court for the Southern District of New York against the Village, the ACA, Ramapo and several leaders of the incorporation movement, claiming that the in- corporation of the Village had been undertaken for the purpose of excluding Orthodox Jews, in violation of various federal laws, including the Fair Housing Act (FHA), 42 U.S.C. 3601 et seq., and the First Amendment. They sought damages and injunctive relief, and moved to enjoin preliminarily the election of the Village mayor and board of trustees that was scheduled for May 16, 1991. LeBlanc-Sternberg, 67 F.3d at 419. The district court denied an injunction on the ground that respondents had failed to establish irreparable harm. LeBlanc-Sternberg v. Fletcher, 763 ---------------------------------------- Page Break ---------------------------------------- 5 F. Supp. 1246, 1250-1252 (S.D.N.Y. 1991). Shortly thereafter, the ACA's slate of candidates was elected and took office as the Village Mayor and the members of its Board of Trustees. LeBlanc-Sternberg, 67 F.3d at 419. c. On December 17, 1991, the United States filed suit against the ACA, the Village, and the Village trustees in their official capacities, alleging that the incorporation of Airmont had been accomplished "for the purpose of excluding Orthodox Jews" from the Village by, inter alia, imposing burdensome zoning and other restrictions upon Orthodox Jewish places of worship in the Village, in violation of the FHA. The United States sought declaratory and injunctive relief. LeBlanc-Sternberg, 67 F.3d at 419. In January, 1993, the Village of Airmont adopted its own zoning code. LeBlanc-Sternberg, 67 F.3d at 420. The code contained several modifications of the "home professional office" provision of the Ramapo zoning code and stated the Village's intention that the pro- vision "not generate activities that come into a residential area so as to detract from the residential character of the area." Ibid. The Village appointed a board of appeals and a planning board to interpret and apply the code and appointed, as one of the board members, an ACA member who had stated that most persons were opposed to home houses of worship and who had participated in the surveillance of Orthodox Jewish homes at prayer time. Id. at 421. The mayor and three of the four trustees who adopted the zoning code all "testified at trial that they were opposed to the Ramapo-type interpretation of the [home pro- fessional office] provision to allow worship services in the homes of clergy." Ibid. Respondents contended that, in light of the circumstances surrounding the ---------------------------------------- Page Break ---------------------------------------- 6 adoption of the zoning provision, the interpretation it would be given was a foregone conclusion. See ibid. d. The two lawsuits were consolidated and pro- ceeded to trial. 5. The damages claims by the private respondents were tried to a jury; the government's suit was tried to the court. LeBlanc-Sternberg, 67 F.3d at 419. 6. On December 13, 1993, after seven weeks of trial and a week of deliberations, the jury returned a verdict against the Village, finding that it had violated private respondents' rights under the FHA and had conspired to violate their rights under the First Amendment. Id. at 421-422. The jury awarded no damages. Id. at 422. In addition, the jury returned a verdict in favor of the individual defendants. Ibid. Two days after the jury verdict, the district court dismissed the government's suit. LeBlanc-Sternberg, 67 F.3d at 422; United States v. Village of Airmont, 839 F. Supp. 1054 (S.D.N.Y. 1993). The court found that there was no basis for injunctive relief because the Village of Airmont had not taken any actions that violated the rights of Orthodox Jews in that, since incorporation, it only had enacted the zoning code and had not interpreted it. The court stated that, although the differences between the Airmont code and the Ramapo code "arguably could be taken as ___________________(footnotes) 5 On December 24, 1991, the district court had denied a motion to dismiss the private suit, rejecting, inter alia, the challenge to the private respondents' standing, to the justi- ciability of their claims, and to their statement of a cause of action. LeBlanc-Sternberg V. Fletcher, 781 F. Supp. 261 (S.D.N.Y. 1991). 6 Claims against some original defendants were settled or dismissed prior to trial, and a default judgment was entered against the ACA. LeBlanc-Sternberg, 67 F.3d at 421. ---------------------------------------- Page Break ---------------------------------------- 7 a signal for a different interpretation," the Village "might not" interpret its code to prevent the use of home houses of worship by Orthodox and Hasidic rabbis for worship services. LeBlanc-Sternberg, 67 F.3d at 422; Airmont, 839 F. Supp. at 1063-1064. The court dismissed the case notwithstanding its acknowledgment that, "[v]iewing the evidence in the light most favorable to the Government, we can foresee that the [Airmont] Planning Board and the Zoning Board of Appeals (to the extent the matter might be submitted to it) will not adopt the Ramapo interpretation of the home professional office excep- tion." Airmont, 839 F. Supp. at 1064. The court also recognized that the absence of actions against the Orthodox and Hasidic Jews in Airmont by the Village or the trustees since the incorporation of the Village could have been caused by the pendency of the instant litigation. Ibid. The court concluded that, "if there is any action taken in the future which violates their rights, the United States Government and other plaintiffs will not be timorous about suing. Conse- quently, we see no basis or need for injunctive relief." Ibid. The court believed that injunctive relief, as requested by the United States, to prohibit peti- tioners from denying persons their constitutional rights was "unnecessary since it would be enjoining acts which are already illegal." Id. at 1065. The district court also denied private respondents any injunctive relief. LeBlanc-Sternberg, 67 F.3d at 423. In addition, three months after trial, on March 16, 1994, the district court granted petitioner's mo- tion for judgment as a matter of law under Federal Rule of Civil Procedure 50(b). LeBlanc-Sternberg v. Fletcher, 846 F. Supp. 294 (S.D.N.Y. 1994). The court found the jury verdict to be inconsistent because the ---------------------------------------- Page Break ---------------------------------------- 8 jury had found that the Village of Airmont had violated the FHA and conspired to violate the con- stitutional rights of certain individuals to engage in the free exercise of religion and speech, but had not awarded any damages, Id. at 295. The court incorporated in its findings the facts it had found and the reasoning set forth in its decision dismissing the government's suit. Ibid. The court also rejected the argument that petitioner's actions had a chilling effect on the respondents' First Amendment rights and concluded that, because the private respondents already had their zoning permits, the worst situation they would face, if the Airmont code were to be interpreted differently from the Ramapo code, would be as a non-conforming use. Id. at 296. 2. The court of appeals reversed the dismissal of the claims against petitioner, the Village. LeBlanc- Sternberg v. Fletcher, 67 F.3d 412 (2d Cir. 1995). 7. The court remanded for an award of nominal damages and injunctive relief in the private suit and for de- claratory and injunctive relief in the United States' action. Id. at 435, The court held that "the evidence was sufficient to establish that Airmont violated the private [re- spondents'] rights under the Fair Housing Act and the First Amendment; that the district court was not entitled to set aside the jury's verdict against the Village on those claims on the basis of the court's own findings in the government's action; that in light of the established violation of their rights, the private ___________________(footnotes) 7 The court affirmed the judgment dismissing the private respondents' suit against the individual defendants and dis- missed the cross-appeal of two of the individual defendants as moot. LeBlanc-Sternberg, 67 F.3d at 432-433, 435. ---------------------------------------- Page Break ---------------------------------------- 9 [respondents] were entitled to an award of nominal damages; that the jury's verdict against the Village constituted collateral estoppel that required the court to find that the government had established a violation by the Village; and that in ruling that injunctive relief was not appropriate, the court failed to apply pertinent [Fair Housing Act] principles." LeBlanc-Sternberg, 67 F.3d at 424. The court found that, when viewed in the light most favorable to the private respondents, "there was ample support for the jury's implicit finding that Airmont's zoning code would be interpreted to restrict the use of home synagogues, that the motivation behind the enact- ment was discriminatory animus toward Orthodox and Hasidic Jews, and that Airmont pursued this goal jointly with ACA." Id. at 431. Accordingly, private respondents had established the Village of Airmont's liability on their claims under the FHA, the First Amendment, and 42 U.S.C. 1983 and 1985(3), entitling them to nominal damages. 67 F.3d at 429-431. The court ordered the district court to consider whether injunctive relief in favor of private respondents was appropriate in light of the jury's verdict. Id. at 432. The court of appeals held that the United States was entitled to a declaratory judgment on its FHA claim. LeBlanc-Sternberg, 67 F.3d at 433-435. In addition, the court held that the United States was entitled to an injunction "prohibiting the application of the Airmont zoning code in the discriminatory manner found to be predictable from the evidence in this record." Id. at 434. 3. On June 24, 1996, the Court denied a petition for a writ of certiorari to review the court of appeals' decision. Village of Airmont v. LeBlanc-Sternberg, 116 S. Ct. 2546. ---------------------------------------- Page Break ---------------------------------------- 10 4. On remand, the district court entered injunctive relief against the Village in both cases, awarded the private respondents nominal damages, and entered a declaratory judgment. App., infra, 20a-25a, 27a-28a; Pet. App. 12a. The court also entered an injunction forbidding "the Village and its officers, employees, agents, successors, and assigns from promoting reli- gious discrimination; from denying equal opportunity to religion by use, interpretation, or enforcement of the zoning code in such a manner that it prevents home worship; from discriminating because of reli- gion or interfering with the free exercise of religion in connection with housing and from taking any action that limits the availability of housing on the basis of religion." App., infra, 23a-24a Pet. App. 12a- 13a. Specifically, the court directed that the Airmont zoning code be revised "so that it will not be con- strued to prevent home worship, or to prevent persons from walking to and from religious services at such places of worship, or to prevent home worship ser- vices on any day in all residential zones." App., infra, 24a. The court ordered certain other conforming revisions to the code. Ibid.; Pet. App. 13a-15a. In addition, the court ordered that, for a period of five years, the Village must maintain and make available to the United States all applications for residential houses of worship and records indicating the dis- position of each such application; it must provide opposing counsel with advance notice of all Village planning board and zoning board meetings in which any application relating to religious worship will be considered; and it must notify government counsel of any proposed changes in the Village's zoning ---------------------------------------- Page Break ---------------------------------------- 11 ordinances relating to religious worship. Pet. App. 15a-18a. 8 5. The court of appeals affirmed. App., infra, la- 10a. It ruled that the district court's exercise of injunctive relief passed muster under Milliken v. Bradley, 433 U.S. 267, 280-282 (1977), in that the remedy (1) was commensurate to the Village's "egre- gious constitutional violation" (i.e., "passing a zoning code based on religious animus") and to the predict- ability of further constitutional violations by future discriminatory enforcement of the code, because the remedy "cured the past constitutional violation and obviated the threat of future constitutional viola- tions" (App., infra, 7a-8a); (2) was remedial in nature because the injunction "ensured that rights to free exercise of religion were unencumbered, and the constant threat of limitation of those rights was lifted" (id. at 9a); and (3) was not overly intrusive on local authority because "there was no indication that the Village was going to make the changes necessary to guarantee that no constitutional violations oc- curred in the future" (an occurrence that the court of appeals had ruled was "likely") and the injunction "was necessary to ensure that the Village complied with the mandate of the FHA" (id. at 10a). ARGUMENT 1. Petitioner contends (Pet. 5-8) that the court of appeals disregarded constitutional precedent that the federal government is a government of limited powers and that the court erred by permitting intervention ___________________(footnotes) 8 The district court denied the request by private respon- dents that it dissolve the Village. App., infra, 25a-27a. ---------------------------------------- Page Break ---------------------------------------- 12 into the uniquely local issue of zoning, a matter which is better left to local governments. The court of appeals correctly upheld the injunctive relief ordered by the district court. As the court of appeals noted, a district court has "not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future." App., infra, 7a (quoting Louisiana v. United States, 380 U.S. 145, 154 (1965)). In the instant case, the jury had implicitly found that the Airmont zoning code was motivated by discriminatory animus against Orthodox and Hasidic Jews and that it would be interpreted to restrict the use of home synagogues, "thereby deterring Orthodox Jews from purchasing homes in many Airmont neighborhoods." LeBlanc-Sternbergy 67 F.3d at 429; see also id. at 428, 431. Thus, the district court correctly fashioned "a remedy that both cured the past constitutional violation and obviated the threat of future consti- tutional violations." App., infra, 8a. Ordinarily, local governments enjoy considerable discretion in making land-use decisions. Where, however, a municipality's zoning code was enacted in violation of federal constitutional or statutory requirements, as the court of appeals found was the case here, the municipality is not immune from the remedial power of a federal court. And where, as here, the violation includes the threat of future ap- plication of the invidiously adopted zoning code in a discriminatory manner, the court's authority permits it to order revisions that will prevent it from being so construed and applied. As the court of appeals recognized (App., infra, 10a), "the Village's history and its disregard of this Court's clear holding that it ---------------------------------------- Page Break ---------------------------------------- 13 was in violation of the FHA" gave no indication that it would make the changes necessary to ensure compliance with federal law. In similar circum- stances, federal courts have affirmed district court orders striking down and revising municipal legisla- tion where necessary to cure a constitutional vio- lation and to ensure against future violations. See id. at 7a (citing United States v. City of Parma, 661 F.2d 562, 578 (6th Cir. 1981), cert. denied, 456 U.S. 926 (1982); Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926 (2d Cir.), aff'd, 488 U.S. 15 (1988) (per curiam)). Indeed, in Huntington, where the town was found to have violated the FHA, this Court affirmed a court of appeals' judgment that directed the town to strike from its zoning code "the restriction of private multifamily housing projects to the urban renewal area and ordered the town to rezone the project site to R-3M." 488 U.S. at 18. See also Buchanan v. Warley, 245 U.S. 60 (1917) (invalidating a city ordinance barring persons be- cause of their race from acquiring real property in a residential area). Here, the district court took a less drastic approach by ordering revision of the zoning code. 2. Petitioner contends (Pet. 9-13) that the injunc- tive relief exceeded the court's remedial authority because there had been no injury to the private respondents' right to pray. Petitioner's argument constitutes, in essence, a reprise of one of the arguments presented in its earlier unsuccessful petition for a writ of certio- rari in this case. Compare Pet. 9 (respondents have "sustained no wrong that could be remedied by an injunction") with Pet. at 10-19 in Village of Airmont v. LeBlanc-Sternberg, cert. denied, 116 ---------------------------------------- Page Break ---------------------------------------- 14 S. Ct. 2546 [1996) (No. 95-1381) (arguing that no ripe controversy between the United States and the Village existed because there was no past or potential future injury). The injunctive relief entered in this case was authorized under the well-established principle that a plaintiff need not "await the consummation of threatened injury to obtain preventive relief." Pennsylvania v. West Virginia, 262 U.S. 553, 593 (1923). As the court of appeals recognized (LeBlanc- Sternberg, 67 F.3d at 425), the FHA provides standing to a person who believes he "will be injured by a discriminatory housing practice that is about to occur." 42 U.S.C. 3602(i)(2). That provision is prem- ised on the long-standing doctrine that "a suit for an injunction deals primarily, not with past violations, but with threatened future ones; * * * an injunction may issue to prevent future wrong, although no right has yet been violated." Swift & Co. v. United States, 276 US. 311, 326 (1928); accord Farmer v. Brennan, 511 U.S. 825, 845 (1994). The trial evidence demonstrated the necessity for judicial intervention in this case. The court of appeals had held that the Village had violated the FHA "by passing a zoning code based on religious animus." App., infra, 7a. It also expressly had found that it was " `predictable from the evidence in this record' that the Village would violate the Constitution by enforcing the code in the future in a discriminatory manner." Id. at 7a-8a. (quoting LeBlanc-Sternberg, 67 F.3d at 434). The incor- poration of the Village of Airmont, for the expressed purpose of enacting a zoning code to exclude Orthodox Jews' home houses of worship, and the enactment of the Airmont zoning ordinance itself, were designed to ---------------------------------------- Page Break ---------------------------------------- 15 chill the exercise of both First Amendment and FHA rights. As has been often recognized, a "loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod V. Burns, 427 U.S. 347, 373 (1976) (opinion of Brennan, J.). 3. Petitioner contends (Pet. 13-17) that there is a conflict among the courts of appeals on the question whether the First Amendment requires an accom- modation for religious worship that is burdened by local zoning decisions. Petitioner's argument is virtually identical to one of the arguments advanced in its earlier unsuccessful petition for a writ of certiorari in this case. Compare Pet. 13-17 with Pet. at 6-10 in Village of Airmont v. LeBlanc-Sternberg, cert. denied, 116 S. Ct. 2546 (1996) (No. 95-1381). Neither of the cases cited by petitioners (Pet. 13- 16) as purportedly in conflict with the decision below, i.e., Lakewood, Ohio Congregation of Jehovah's Wit - nesses, Inc. v. City of Lakewood, 699 F.2d 303 (6th Cir.), cert. denied, 464 U.S. 815 (1983), and Grosz v. City of Miami Beach, 721 F.2d 729 (llth Cir. 1983), cert. denied, 469 U.S. 827 (1984), involved allegations-let alone, as here, findings-of inten- tional discrimination. The plaintiffs there did not claim that the zoning laws were intended to impede the practice of religion. Both of those cases involved application of neutral laws of general applicability which, under Employment Div., Dep't of Human Resources v. Smith, 494 U.S. 872 (1990), "need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice." Church of Lukumi ---------------------------------------- Page Break ---------------------------------------- 16 Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993). 9 Lakewood involved a zoning ordinance that pro- hibited the building of a church in a residential neighborhood. As applied to the Congregation of Jehovah's Witnesses, the ordinance resulted in the Congregation's not being able to build a new church on a lot that it owned. That location had "no religious or ritualistic significance" to the plaintiffs and the zoning ordinance did "not prevent the Congregation from practicing its faith" elsewhere. Lakewood, 699 F.2d at 306-307. The court emphasized that the ordinance did not have the purpose or effect of pro- hibiting the Jehovah's Witnesses or any other faith from practicing its religion. Ibid. The ordinance "simply regulated] a secular activity and, as applied to the [Congregation], operate[d] so as to make the practice of their religious beliefs more expensive." Id. at 307 (quoting Braunfeld v. Brown, 366 U.S. 599, 605 (1961) (opinion of Warren, C.J.) (emphasis omitted). The court in Lakewood contrasted the situation there from that in Keego Harbor Company ___________________(footnotes) 9 This case does not involve a claim under the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. 2030bb et seq., which was enacted in response to this Court's decision in Smith. RFRA restores the compelling interest test, as set forth in Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972), for claims involving govern- mental action that substantially burdens a person's exercise of religion, even if the burden results from a neutral rule of general applicability. Therefore, there is no reason to hold this petition pending the disposition of City of Boerne v. Flores, No. 95-2074 (argued Feb. 19, 1997), which presents the question whether RFRA is a constitutional exercise of Congress's legislative authority under Section 5 of the Fourteenth Amendment. ---------------------------------------- Page Break ---------------------------------------- 17 v. City of Keego Harbor, 657 F.2d 94 (6th Cir. 1981), in which a zoning ordinance had been declared un- constitutional because "its purpose and effect were to eliminate from the city the exercise of a first amend- ment right." Lakewood, 699 F.2d at 307. Similarly, in Grosz, there was no contention that the zoning laws at issue were "based upon disagree- ment with religious tenets or practices, or [were] aimed at impeding religion)" 721 F.2d at 733, and it was uncontroverted that "the law has both secular purpose and effect," id. at 738. There was no religious necessity that the religious services at issue in that case be held in the particular location at issue; the Eleventh Circuit found that the home of the rabbi in which the religious services were conducted was within four blocks of a district in which publicly attended religious services were allowed, and that such services were allowed in one-half of the city's territory. Id. at 731,739. More recently, the Eleventh Circuit in First Assembly of God of Naples, Florida, Inc. v. Collier County, 20 F.3d 419, modified on other grounds on denial of rehearing, 27 F.3d 526 (1994), cert. denied, 513 U.S. 1080 (1995), noted the special analysis that is required when a zoning ordinance singles out a par- ticular religious practice for unfavorable treatment. The court contrasted the situation in Grosz from that in Lukumi Babalu Aye, where the local law was held to violate the Free Exercise Clause because it "target[ed] the use of animal sacrifice for reli- gious purposes." Id. at 423. In both Grosz and First Assembly of God, the challenged enactments were found to be of general applicability and not motivated by hostility toward religion, so that the compel- ---------------------------------------- Page Break ---------------------------------------- 18 ling interest analysis applied in Lukumi was not applicable. Id. at 424. 10 Unlike Lakewood and Grosz, the instant case in- volves purposeful discrimination based upon religion. The Village of Airmont was incorporated for the pur- pose of deterring Orthodox Jews from residing in Airmont in violation of the FHA, and it conspired to impede the private respondents' exercise of their First Amendment free exercise rights. LeBlanc- Sternberg, 67 F.3d at 429,431. The court of appeals' decision in this case is consistent with the only de- cision cited by petitioner (Pet. 16) that involved pur- poseful discrimination against a particular religious group, i.e., Islamic Center of Mississippi, Inc. v. City of Starkville, 840 F.2d 293 (5th Cir. 1988). In Islamic Center, the court concluded that the city "favored Christian churches over Muslim mosques" by grant- ing exemptions from its zoning ordinance for every Christian denomination that had applied, and denying an exemption only to the Islamic group. Id. at 294, 297, 302-303. There also was evidence that the ad- herents of the particular religious faith needed a place to worship near their homes because travel by automobile was unavailable, as well as evidence that the governmental entity applied a stricter standard to the needs of non-Christian religious organizations. Ibid. ___________________(footnotes) 10 In an amendment to its decision, added in the course of denying a petition for rehearing and suggestion of rehearing en banc, the First Assembly of God court noted that RFRA might be applicable to the claims in that case. It declined to address that issue, however, because it had not been raised by either party. First Assembly of God of Naples, Florida, Inc. v. Collier County, 27 F.3d 526 (llth Cir. 1994), cert. denied, 513 U.S. 1080 (1995). See note 9, supra. ---------------------------------------- Page Break ---------------------------------------- 19 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General ISABELLE KATZ PINZLER Acting Assitant Attorney General JESSICA DUNSAY SILVER MARIE K. McELDERRY Attorneys MAY 1997 ---------------------------------------- Page Break ---------------------------------------- APPENDIX A [UNPUBLISHED] [Notice: This Summary Order may not be cited as precedential authority, but may be called to the attention of the Court in a subsequent stage of this case, or in any case for purposes of collateral estoppel or res judicata. See Second Circuit Rule 0.23] UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 96-6149 RABBI YITZCHOK LEBLANC-STERNBERG, CHANIE LEBLANC-STERNBERG, FRED WALFISH, LEWIS KAMMAN, PARK AVENUE SYNAGOGUE, INC., PLAINTIFFS-APPELLEES v. ROBERT FLETCHER, NICK VERTULLO, RAYMOND KANE, MAUREEN KENDRICK, JOHN C. LAYNE, INDIVIDUALLY AND IN THEIR CAPACITIES AS TRUSTEES OF THE VILLAGE OF AIRMONT AND AS OFFICERS AND BOARD MEMBERS OF THE AIRMONT CIVIC Assoc., AND THE VILLAGE OF AIRMONT, DEFENDANTS-APPELLANTS UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE v. THE VILLAGE OF AIRMONT, AIRMONT CIVIC ASSOCIATION, RALPH BRACCO, IN HIS CAPACITY AS MAYOR OF THE VILLAGE OF AIRMONT, JOHN C. LAYNE, RAYMOND KANE, CHARLES CALOTTA, AND RONALD SABO, IN THEIR CAPACITIES AS TRUSTEES OF THE VILLAGE OF AIRMONT, DEFENDANTS-APPELLANTS (la) ---------------------------------------- Page Break ---------------------------------------- 2a Appeal from the United States District Court for the Southern District of New York (Goettel, J. [Filed: Dec. 6, 1996] Present: OAKES, MCLAUGHLIN and CABRANES, Circuit Judges, This cause came on to be heard on the transcript of record from the United States District Court for the Southern District of New York and was argued. ON C0NSIDERATION WHEREOF, it is hereby ordered, adjudged, and decreed that the judgment of the district court be and it hereby is AFFIRMED. The Government filed an action under the Fair Housing Act, 42 U.S.C. par 3601 et seq. ("FHA"), in 1991, against the Village of Airmont ("Village"), alleging that the Village was formed for the purpose of excluding Orthodox Jews by, among other things, imposing restrictions on Jewish forms of residential worship. Specifically, the Airmont Civic Association ("ACA"), an organization whose purpose was the incorporation of the Village, was to enact a zoning ordinance completely preventing worship in homes-a primary method of Orthodox Jewish worship. At roughly the same time, a private group of rabbis initiated an action, which was consolidated with the government case for discovery and trial. The private action was before a jury, while the government action was tried to the court. After an eight week trial, a jury found that the Village had violated the plaintiffs' rights under the ---------------------------------------- Page Break ---------------------------------------- 3a FHA and the First Amendment. The district court (Goettel, J.) (S. D. N. Y.) then dismissed the govern- ment action, reasoning that because the Village had only passed the zoning regulations, but had not applied the regulations, there had not yet been a violation of the FHA. The district court refused to order injunctive relief because: (1) it would be enjoin- ing acts which were already illegal; and (2) "if there is any action taken in the future which violates [the Orthodox Jews'] rights, the United States Gov- ernment . . . will not be timorous about suing." United States v. Village of Airmont, 839 F. Supp. 1054, 1064-65 (S. D. N. Y.1993) (Airmont I), rev'd and remanded, 67 F.3d 412 (2d Cir.1995), cert. denied, 116 S. Ct. 2546 (1996). The district court then granted the Village's motion for judgment as a matter of law in the private action, and set aside the jury verdict. In September, 1995, this Court reversed, see LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 431 (2d Cir.1995) (Airmont II), cert. denied, 116 S. Ct. 2546 (1996), reasoning that the evidence supported the jury's determination that the Village had violated the FHA. This Court held that there was evidence that the events leading to the incorporation of the town and the implementation of its zoning code "amply support a finding that the impetus was not a legiti- mate nondiscriminatory reason but rather an animos- ity toward Orthodox Jews as a group." Airmont II, 67 F.3d at 431. The court also held that there was support for the jury's finding that the motivation behind the enactment of the zoning regulations was anti-Semitism, and its "implicit finding that Air- mont's zoning code would be interpreted to restrict the use of home synagogues." Id. (emphasis supplied). ---------------------------------------- Page Break ---------------------------------------- 4a This Court held that the district court erred in concluding that injunctive relief was not proper, because the FHA explicitly provides that courts enter injunctive relief against parties who have vio- lated the FHA " `as is necessary to assure the full enjoyment of the rights granted by the [FH.A].'" Airmont II, 67 F.3d at 434. This Court held that "[t]he view that such relief was premature because Airmont had not yet actually applied its zoning provision invidiously was a misapplication of the [FHA]." Id. at 434-35. The Court then directed on remand, that the district court "fashion appropriate equitable remedies." Id. On remand, Judge Goettel ordered: . A prohibitory injunction, enjoining the Village from: (1) promoting religious discrimination; (2) denying equal protection to religions by use, in- terpretation, or enforcement of the zoning code; and (3) discriminating in housing based on reli- gion, or interfering with the exercise of religion through housing. . A mandatory injunction, requiring the Village to revise its zoning code so that it could not be construed to prevent home worship, or to prevent persons from walking to and from places of reli- gious worship. The court specifically called for an addition to the zoning code entitled "Residential Place of Worship." Such places were defined as "area[s] located within a residence that is used for the conducting of religious services." The order provided that such places "will be permitted by right on any day in all residential zones." ---------------------------------------- Page Break ---------------------------------------- 5a . The retention of documents and notification pro- visions. The Village was ordered to keep all docu- ments related to zoning decisions, notify the gov- ernment of any such decisions, or of any meetings of planning or zoning boards at which applications touching on religious worship will be presented. LeBlanc-Sternberg v. Fletcher, 922 F. Supp. 959, 964- 65 n. 15 (S.D.N.Y.1996) (Airmont III). We review a district court's award of equitable and injunctive relief for abuse of discretion or a clear error of law. See EEOC v. Johnson & Higgins, Inc., 91 F.3d 1529,1542 (2d Cir.1996). The Village argues that the mandatory injunction conflicts with Milliken v. Bradley, 433 U.S. 267 (1977) in three respects: (1) the injunction is dispro- portionate because there is "no existing violation by [the Village];" rather "it was what the Village of Airmont will `predictably' do that the Second Circuit found improper in its appellate crystal ball;" (2) the injunction is not remedial; and (3) the district court usurped the role of the local government by creating a new set of zoning regulations, thereby violating well-settled principles of federalism. The Village is wrong. In Milliken v. Bradley, 433 U.S. 267,280-281 (1977), the Supreme Court noted that a federal court exercis- ing its equitable power must focus on three factors: (1) the remedy must "be determined by the nature and scope of the constitutional violation;" (2) the equitable decree must be. remedial in nature, i.e. it must " restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct;" and (3) the federal courts must respect ---------------------------------------- Page Break ---------------------------------------- 6a the role of state and local authorities in the manage- ment of their affairs. Though by no means unlimited, the power of the federal courts to remedy constitutional violations is broad and flexible. See United States v. Yonkers Bd. of Educ., 837 F.2d 1181, 1235 [2d Cir.1987). In general, the power to intrude into municipal functions should be exercised only where there has been a constitu- tional violation. Id. The court should tailor its rem- edy to fit the nature and extent of the violation. See Milliken v. BradLey, 418 U.S. 717, 738 (1974); Swann v. Charlotte-Mecklenburg Ed. of Educ., 402 U.S. 1, 16 (1971). "The Supreme" Court has not required that the least restrictive means of implementation' be adopted but has `recognized that the choice of reme- dies to redress racial discrimination is `a balancing process left, within appropriate constitutional or statutory limits, to the sound discretion of the trial court.'" Yonkers, 837 F.2d at 1236 (quoting United States v. Paradise, 480, U.S. 149, 184 (1987) (quoting Fullilove v. Klutznick, 448 U.S. 44%, 508 (1980) (Powell, J., concurring),.(quoting Franks v Bowman Transp. Co., 424 U.S. 747, 794 (1976) (Powell, J., con- curring in part and dissenting in part)))). The district court has "first-hand experience with the parties and is best qualified to deal with the `flinty, intractable realities of day-to-day implementation of constitutional commands,'" and must be given great flexibility and broad discretion in choosing a remedy best suited to curing the violation. Paradise, 480 U.S. at 184 (quoting Swann, 402 U.S. at 6). In deter- mining whether [an] order was "narrowly tailored," the court must "acknowledge the respect owed a_ Dis- trict Judge's judgment that specified relief is essen- ---------------------------------------- Page Break ---------------------------------------- 7a tial to cure [a Constitutional] violation." Yonkers, 837 F.2d at 1236 (quoting Louisiana v. United States, 380 U.S. 145,154 (1965)). A district court has " `not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.'" Id.; see also Swarm, 402 U.S. at 15 (scope of a district court's equitable powers to remedy past wrongs is broad). Equitable relief under the FHA may `be structured to achieve the twin goals of insuring that the Act is not violated in the future and removing any lingering effects of past discrimination." Marable v. Walker, 704 F.2d 1219, 1221 (llth Cir.1983). In the past, this and other circuits have allowed federal district courts to make changes to, and even strike whole portions of, statutory codes to cure constitu- tional violations by local municipalities and ensure that the municipality did not violate the Constitution in the future. See, e.g., United States v. City of Parma, 661 F.2d 562, 578 (6th Cir.1981), cert. denied, 456 U.S. 926 (1982). We have, ourselves, specifically ordered the rezoning of a municipality to ensure compliance with Constitutional mandates. See Hunt - ington Branch, NAACP v. Town of Huntington, 844 F.2d 926, aff'd, 488 U.S. 15 (1988). 1. Commensurate Remedy. The Village asserts that there was no existing violation of the FHA, and that the only violations were those found in the Second Circuit's "crystal ball." However, this court previously held that the Village had violated the FHA by passing a zoning code based on religious animus, and found it "predictable from the evidence in this record" that the Village would violate the Constitu- ---------------------------------------- Page Break ---------------------------------------- 8a tion by enforcing the code in the future in a dis- criminatory manner. Airmont II, 67 F.3d at 434. This was an egregious constitutional violation, call- ing for a commensurate injunctive remedy. The district court needed to fashion a remedy that both cured the past constitutional violation and obviated the threat of future constitutional violations. The district court therefore issued a prohibitory injunc- tion and a mandatory, forward-looking injunction. The prohibitory injunction served to cure past constitutional violations by forbidding a repetition of the Village's past discriminatory practices. Judge Goettel was clearly within his discretion when he ordered the Village to cease promoting religious dis- crimination, denying equal opportunity to religions by use, interpretation, or enforcement of the zoning code in a way to prevent home worship, and from discriminating in housing due, to religion, or inter- fering with the exercise of religion through housing. Such actions are exactly those which the FHA intended to curtail. Judge Goettel was also clearly within his discretion in ordering forward-looking, mandatory injunctive relief against "likely" constitutional violations. The affirmative injunction, requiring the Village to revise its zoning ordinance so that it could not be construed to prevent home worship and to add provisions to protect "Residential Place[s] of Worship," was neces- sary to ensure that the Village could not hinder or prevent worship in homes. The amendments to the zoning regulations require the Village to allow, such worship-an effective way of ensuring, that the village permits the use of residential dwellings for worship. ---------------------------------------- Page Break ---------------------------------------- 9a 2. Remedial in Nature. Judge Goettel ordered mandatory injunctive relief grudgingly, arguing that in doing so he was forced to ignore the Supreme Court's recent instruction that injunctive relief in such cases be remedial in nature. Judge Goettel felt that affirmative relief did not improve any rights already exercised by Orthodox Jews in Airmont, but "simply [was] insurance that there can be no challenges to their exercise of religion in their homes in the future," and therefore was not truly "reme- dial." Airmont III, 922 F. Supp. at 964 n. 15. Gener- ally, a remedial measure is one that places the parties in a position they would have occupied but for the constitutional violation. Missouri v. Jenkins, 115 S. Ct. 2038, 2048 (1995). However, that a measure is prospective, because it deters future constitutional violations, does not imply that it is not remedial. In certain instances, prospective injunctions are essen- tial to ensure compliance with constitutional and statutory mandates in the future. Cf. Alabama- Tom big bee Rivers Coalition v. Department of In- terior, 26 F.3d 1103, 1107 (llth Cir.1994). Here, the injunction ensured that rights to free exercise of religion were unencumbered, and the con- stant threat of limitation of those rights was lifted. This forward-looking aspect of the injunction only requires that the Village do that which the FHA and the Constitution already requires. See Marable, 704 F.2d at 1221 (FHA injunction may be structured to ensure FHA not violated in future and to remove effects of past discrimination). In that regard, it placed the parties in a position which ensured that their constitutional rights remained inviolate. ---------------------------------------- Page Break ---------------------------------------- 10a 3. Federalism. There is, of course, always a federalism concern when the federal court steps in to remedy some municipal problem. This court has cautioned that federal' courts should not encroach on a state's ability to remedy constitutional deficiencies, should not use a "sledgehammer where a more deli- cate instrument will suffice," and should not "move too quickly where it appears that the state . . . will in its own way adopt reforms bringing its system into compliance with the Constitution." Dean v. Cough- lin, 804 F.2d 207, 213 (2d Cir.1986). Here, there was no indication that the Village was going to make the changes necessary to guarantee that no constitu- tional violations occurred in the future. Indeed, this Court ruled that future violations were "likely." Given the Village's history and its disregard of this Court's clear holding that it was in violation of the FHA, this injunction was necessary to ensure that the Village complied with the mandates of the FHA. We have considered all of the arguments raised by the Village, and find them to be without merit. Accordingly, the judgment of the district court is AFFIRMED. ---------------------------------------- Page Break ---------------------------------------- lla APPENDIX B UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK No. 91 Civ. 2550 (GLG) RABBI YITZCHOK LEBLANC-STERNBERG, CHANIE LEBLANC-STERNBERG, FRED WALFISH, LEWIS KAMMAN, PARK AVENUE SYNAGOGUE, INC., PLAINTIFFS v. ROBERT FLETCHER & NICK VERTULLO, RAYMOND KANE, MAUREEN KENDRICK, AND JOHN C. LAYNE, INDIVIDUALLY AND IN THEIR CAPACITY AS TRUSTEES OF THE VILLAGE OF AIRMONT, DEFENDANTS No. 91 Civ. 8453 (GLG) UNITED STATES OF AMERICA, PLAINTIFF v. THE VILLAGE OF AIRMONT, AIRMONT CIVIC ASSOCIATION, RALPH BRACCO, IN HIS CAPACITY AS MAYOR OF THE VILLAGE OF AIRMONT, JOHN C. LAYNE, RAYMOND KANE, CHARLES CALOTTA, AND RONALD SABO, IN THEIR CAPACITIES AS TRUSTEES OF THE VILLAGE OF AIRMONT, DEFENDANTS [Filed: Apr. 25, 1996] --------------------------------------- Page Break ---------------------------------------- 12a MEMORANDUM DECISION GOETTEL, District Judge. Following a reversal of its earlier decisions, United States v. Village of Airmont, 839 F. Supp. 1054 (S.D.N.Y. 1993), and LeBlanc-Sternberg v. Fletcher, 846 F. Supp. 294 (S.D.N.Y. 1994), and remand from the Second Circuit Court of Appeals, LeBlanc- Sternberg v. Fletcher,- 67 F.3d 412 (2d Cir. 1995), petition for cert. filed, 64 U.S.L.W, 3605 (U.S. Feb. 26, 1996) (No. 95-1381), this, Court must no-w comply with the Second Circuit's directives in fashioning appro- priate remedies. The parties in these two actions (which were tried and appealed together) differ entirely as to what is expected of this Court at this point. In order to understand the dispute, it is neces- sary to review the history of the litigation in some detail. HISTORY OF THE LITIGATIONN The Town of Ramapo ("Ramapo" or the "Town") in Rockland County, New York, is a large geographical area composed of a number of incorporated villages and unincorporated areas. It has a substantial Ortho- dox Jewish population, consisting primarily of Hasi- dic Jews. In recent years, the tendency of villages to incorpo- rate for purposes of asserting local government con- trol has increased substantially. Indeed, twelve vil- lages have broken away from the Town of Ramapo.1 1 A couple of the villages were formed by Orthodox Jewish groups for the admitted purpose of creating Hasidic enclaves so that the village residents could comply with Orthodox Jew- ---------------------------------------- Page Break ---------------------------------------- 13a In the Airmont area of the Town, a group calling themselves the Airmont Civic Association ("ACA" or the "Association"), a not-for-profit association, was formed to seek the incorporation of a village ("Air- mont" or the "Village"). Although the first president of that Association and a number of its leaders were Jewish, they were not Orthodox, and the Association admittedly sought incorporation of the Village of Airmont because some of its members felt that the Town of Ramapo was adopting zoning measures un- duly favorable to Hasidic Jews. Their initial concern was multiple-family housing in areas zoned for single family residences. Another aspect, and a focus of later ACA concern, was the allowance of home syna- gogues ("shteebles") in residential areas through a liberal interpretation of the Town's Home Profes- sional Office zoning law. Through that provision, groups of up to 49 persons were allowed to attend services in a home in a residential area provided that the portion of the home used for that purpose did not exceed half the dimensions of the ground floor and provided that only two employees were involved. In early 1989, a referendum on incorporating the Village of Airmont was held, which passed by a three- to-one margin. The operation of the Village was, how- ever, delayed for two years due to litigation com- menced by Orthodox groups and real estate interests. The Village was finally incorporated in April 1991. Two days later, before the Village had actually commenced operation, an Orthodox Jewish Rabbi, Yitzchok LeBlanc-Sternberg (who is Hasidic), and members of his congregation instituted a private suit ___________________(footnotes) ish law. The United States government saw no unfair housing problems with respect to the formation of those villages. ---------------------------------------- Page Break ---------------------------------------- 14a claiming that the formation of the Village violated their First Amendment rights and the Fair Housing Act. 42 U.S.C. par 3601 et seq. The action principally sought large monetary damages and the dissolution of the Village.2 The following month Village elections were held, and the slate of candidates supported by the ACA was elected as Mayor and Trustees. (By that point in time, however, the ACA was disbanding and, when sued in this action, defaulted). Upon incorpora- tion, the Village did not adopt a new zoning code but continued operating for a period of time under the Ramapo code. As discussed below, it was not until 1993 that the Village adopted a zoning code. Prior to the Village's incorporation and the com- mencement of the litigation, the LeB1anc-Sternberg congregation, which was located in the Airmont section of Ramapo, had already received zoning per- mission from Ramapo to operate a home synagogue as a "Home Professional Office" under the Ramapo in- terpretations The LeBlanc-Sternberg congregation has continuously operated their home synagogue for the last six and one-half years. In late 1991, the United States commenced a separate action under the Fair Housing Act against the Village and its then Trustees, alleging that the Village had been incorporated for purposes of ex- cluding Orthodox Jews through zoning restrictions on their places of worship. The government sought a ___________________(footnotes) 2 They sought preliminarily to enjoin the election of Village officials but this was denied by the Court because they had not made a showing of irreparable harm. See LeBlanc-Sternberg v. Fletcher, 763 F. Supp. 1246,1252 (1991). 3 While there were legal challenges to that zoning grant, they were not pursued after the incorporation. ---------------------------------------- Page Break ---------------------------------------- 15a declaratory judgment and injunctive relief against further violations, The private action and the govern- ment action were consolidated for discovery and eventually trial. The defendants demanded a jury trial on the private action damage claims, but the government's action, including claims for injunctive relief, was tried to the Court, When the actions were tried, the government's case involved factually not only the LeBlanc-Sternberg congregation but also another congregation headed by a Rabbi Chaim Fried- man.4 During the first year and a half of the pendency of these actions, there was no zoning activity concern- ing home synagogues. In January of 1993, however, more than a year and a half after the private action was commenced, and more than a year after the gov- ernment's action was commenced, Airmont adopted its own zoning code, which was approved at a public meeting without objection. The new code modified the Ramapo zoning provision regarding Home Profes- sional Offices. It kept the same restrictions con- cerning use of no more than half of the ground floor and no more than two employees but added language indicating that the Home Professional Office should ___________________(footnotes) 4 Rabbi Friedman's congregation had also commenced a separate lawsuit looking for damages of its own. That action remains pending before a different Judge in the Southern District of New York. That congregation was attempting to build a free-standing synagogue, which did not fall under the home professional office exception. Although Friedman's ap- plication to build the synagogue was eventually approved by the Town Planning Board, the congregation had problems with finances and safety aspects of the State's building code. In the interim, it has functioned in the Rabbi's home as a Home Pro- fessional Office. ---------------------------------------- Page Break ---------------------------------------- 16a not generate activities inconsistent with a residential area. The change in the zoning code did not result in any amended pleading being filed in either action or any request for temporary injunctive relief being made. Since the date, of its passage, the provision of the amended zoning code concerning Home Profes- sional Offices has never been applied or interpreted. The consolidated cases went to trial in October of 1993. The trial lasted seven weeks. The jury delib- erations lasted for a full week-the longest that this Judge has ever seen for a civil case. The private action was submitted to the jury on a special verdict form containing a number of interrogatories. Eventu- ally the jury returned the verdict form answering most questions in favor of the defendants. It found for all of the individual defendants awarding no damages against any of them. It determined that the majority of voters who favored incorporation were not moti- vated even in part by discrimination against Orthodox or Hasidic Jews. It did find, however, that the Village had violated the private plaintiffs' fair housing rights and had conspired to violate their rights to the free exercise of religion or free speech. Despite these findings, the jury did not award any damages against the Village, not even nominal damages. In the view of the only Judge present_ during these lengthy proceed- ings, this was a compromise verdict and, to an extent, an inconsistent one. This Court then decided the gov- ernment's action in favor of the Village and its Trustees, finding essentially that, while some bias against the Orthodox Jews existed among Village officials, the Village had done nothing to interfere with their religious practices or fair housing rights. Consistent with that, we reversed that portion of the ---------------------------------------- Page Break ---------------------------------------- 17a jury's verdict that had found against the Village. Both plaintiffs then appealed. THE COURT OF APPEALS DECISION The Court of Appeals first reversed this Court's entry of judgment on behalf of the Village in the private plaintiffs' case. In a lengthy opinion it noted that the defendants had demanded a jury trial on the damage aspects and held that, if a claim for damages is joined with an equitable claim, the right to a jury trial on all issues common to both claims prevails. LaBlanc-Sternberg, supra, 67 F.3d at 426. With respect to the apparent inconsistency of the verdicts, it held that it was the duty of the District Court to harmonize the jury's responses by seeking an explanation supportable by the record to correct the apparent inconsistency. Id. at 427. The appellate panel divined that the jury "may have been persuaded that the violative act [of the Fair Housing Act] was the enactment of the Airmont zoning code," id. at 428, and that it was a "fair inference" that the jury viewed this as an act designed to limit home synagogues, thus make housing unavailable to Orthodox Jews.5 Id. ___________________(footnotes) 5 Since a Village is an inanimate body which cannot do anything without human action, the Court of Appeals had to explain why the individual defendants who had passed the zon- ing change were not personally liable. The opinion resolves this by noting that the jury was charged, in answer to its specific question, that the Trustees had legislative immunity with respect to their official acts in voting legislation. Id. at 428. As to whom the Village was conspiring with, since it could not conspire with itself or its own officials, the Circuit Court concluded that it was "easily inferable" [sic] that it had conspired with the Airmont Civic Association. Id. However, the ACA had gone out of existence and ceased activities before ---------------------------------------- Page Break ---------------------------------------- 18a It, therefore, found the jury's verdict consistent "with fully supportable findings," id. at 429, which were reasonable, and it required the District Court to accord the jury's verdict such an interpretation.6 Id. It chastised the trial court for making findings of fact, for weighing the evidence, and for not following findings that were "implicit" in the jury's verdict.7 Id. at 430. The lengthy decision then cites all of the evidence it could muster from the trial record to support its factual findings. It concluded that, taking the evi- dence in the light most favorable to the private plaintiffs, "there was ample support for the jury's implicit finding that Airmont's zoning code would be interpreted to restrict the use of home synagogues, that the motivation behind the enactment was discriminatory animus toward Orthodox and Hasidic __________________(footnotes) the zoning code was amended. Indeed, it had been the subject of a default judgment a year earlier. 6 The jury, having found for the individual defendants and not having awarded any damages, it would seem that we were dealing solely with injunctive relief, which is always a matter exclusively for the Court. 7 With respect to factual findings, we note that the appellate decision found that numerous outrageous anti-Orthodox state- ments were made by various of the individual defendants. While there was evidence, that such statements were made, there was also evidence of denials by the various defendants of having made such statements, in some instances supported by tape recordings of the hearings in question. Moreover, while the decision recites minutes concerning "a grim picture of a Hasidic belt from Rockland through Orange & Sullivan Countys," id. at 418, the minutes were reporting statements made to the group by the Jewish Superintendent of Ramapo who had been named as a defendant in the private action, but had been dismissed on motion by this Court. ---------------------------------------- Page Break ---------------------------------------- 19a Jews, and that Airmont pursued this goal jointly with ACA."8 Id. at 431. The opinion further held that plaintiffs were entitled to nominal damages because it was "plain error" for the trial court to instruct the jury that it "may award" such damages, rather than that it must do so, citing Gibeau v.. Nellis, 18 F.3d 107, 110-11 (2d Cir. 1994).9 Id. With respect to injunc- tive relief, it held that on remand the Court should consider "whether injunctive relief may also be ap- propriate." Id. at 432. The Court did uphold the ver- dict on behalf of the five individual defendants finding that the plaintiffs had received a fair trial and there was no basis for reversal of the verdicts in their favor. Id. at 433. With respect to the government's action, which un- der this Court's decision had resulted in a complete victory for the defendants, it held that the govern- ment can get the benefit of nonmutual offensive col- lateral estoppel, although it could not have been imposed against the government. Id. at 434. Conse- quently, having made findings resulting in a jury verdict against the Village in the private action, it held that this Court could not properly make findings that contradicted what the appellate decision said the jury had intended. 10 Id. The net effect was that by ___________________(footnotes) 8 See footnote 5, .supra, concerning the status of the ACA at this point in time. 9 The appellate decision did not bother noting that this "plain error" derived from a case that was not decided by the Court of Appeals until months after the trial of this action. 10 This Court's decision had made extensive factual findings. See United States v. Village of Airmont, 839 F. Supp. 1054 (S. D.N.Y. 1993). The appellate decision did not dispute any of these specific findings but instead superimposed its view of the jury's findings so as to render them immaterial. ---------------------------------------- Page Break ---------------------------------------- 20a appellate alchemy the government's total 10Ss was converted into a complete victory. The government's action was remanded for injunctive relief and the fashioning of appropriate equitable remedies applying Fair Housing Act principles. Id. at 435. INJUNCTIVE RELIEF The Defendant Village's Position The Village opposes granting any injunctive relief. It notes that the zoning code on which the Court of Appeals focused did not come into existence until long after these lawsuits had been filed. The Village argues that there has never been an application by the Orthodox Jews (or anyone else, for that matter) for additional places of worship in the Village, nor has there been a request for interpretation of the zoning code. Consequently, it contends that there has been no demonstration of discriminatory impact, direct or indirect, by the zoning code, either as written or as applied. The Village notes that the private plaintiffs conceded at trial that the Village had not interfered with their worship services.11 Consequently, it as- serts that the plaintiffs have not met their burden of showing any real or immediate threat that they will be wronged, citing City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983), nor have they demonstrated any indication of real and imminent harm. Carey v. Klutznick, 637 F.2d 834 (2d Cir. 1980); O'Shea v. Littleton, 414 U.S. 488 (1974). ___________________(footnotes) 11 However, some individuals did make such attempts, albeit unsuccessfully, by monitoring the number of persons attending services, ---------------------------------------- Page Break ---------------------------------------- 21a The C ourt Of Appeals Holding There is considerable substance to the Village's argument. However, it has one fault-it is contrary to the emphatic directions of the Court of Appeals that injunctive relief must be granted to avoid dis- crimination in a manner "found to be predictable from the evidence in this record," LeBlanc-Sternberg, supra, 67 F.3d at 434, and that "on a practice that . . . . is about to occur" the Court is authorized to grant injunctive relief. Id. at 425. With respect to the claims brought under the Fair Housing Act, we are directed to enter such injunctive relief "as is neces- sary to assure full enjoyment of the rights granted by0 [the Act]."12 Id. at 434. The Government's Request For Injunctive Relief The Court of Appeals decision authorizes relief to parties who "will be injured by a discriminatory hous- ing practice that is about to occur," citing 42 U.S. C. par 3602(i). Id. at 425. In light of that Court's interpre- tation of the jury's verdict, as applied in the govern- ment's case, the government has understandably focused its request for injunctive relief on the zoning code. However, rather than requesting prohibitory injunctive relief against illegal or unconstitutional applications of the code, the government has sought to redraft the zoning code in an affirmative manner. In its memorandum in support of its request, the gov- ernment argues that "[t]aken together, these changes will help ensure that the Village will permit the use ___________________(footnotes) 12 No citation of authorities for this proposition-i.e. where no action has been taken or is imminently threatened-is set forth by the Court of Appeals, other than the language of the Act itself. ---------------------------------------- Page Break ---------------------------------------- 22a of residences for regular religious worship and that it will otherwise respect the rights of Orthodox and Hasidic Jews to live and pray in Airmont."13 Govern- ment's Memorandum at 11. The Village notes that the zoning changes re- quested by the government would allow a home syna- gogue to operate in virtually every house and could completely eviscerate its zoning code. That may well be. The Second Circuit opinion appears incompatible with the decision of the Eleventh Circuit in Grosz v. City of Miami Beach, Florida, 721 F.2d 729, 741 (1983), cert. denied, 469 U.S. 827 (1984), and the deci- sion of the Sixth Circuit in Lakewood, Ohio Congre- gation of Jehovah's Witnesses, Inc. v. City of Lake- wood, Ohio, 699 F.2d 303, cert. denied, 464 U.S. 815 (1983). In addition, it `would appear to contradict an earlier decision in this District which also concerned Ramapo. Congregation Beth Yitzchok of Rockland, Inc. v. Town of Ramapo, 593 F. Supp. 655 (S.D.N.Y. 1964). However, while we may disagree with the ruling of the Circuit Court, we are compelled to fol- low its directions. ___________________(footnotes) 13 The government's chages in the zoning code are obvi- ously intended to assist only Orthodox Jews and not other smaller religions that conduct home services, which is a ques- tionable favoring of one religion. However, that conforms to the Court of Appeals' conclusion that the need for home places of worship is "unique to the Orthodox and Hasidic Jews." Id. at 430-31. (The Court of Appeals reached this conclusion on the debatable basis that Orthodox and Hasidic Jews were the only ones who had applied to conduct services under Ramapo's home professional office provisions.) There was, however, evi- dence at trial of other small non-Jewish religious groups which held home services. ---------------------------------------- Page Break ---------------------------------------- 23a Since the Village has clone nothing except pass a zoning code which has never been enforced or inter- preted, and there are no actions to overturn, it would seem that there is no other way of satisfying the remand directions except by revising the existing zoning code.14 Consequently, we accept in general the government's approach to amending the zoning code as being the only practical wayof complying with the remand order.15 We will, therefore, in a separate order and judgment, enjoin the Village and its of- ficers, employees, agents, successors, and assigns from promoting religious discrimination; from deny- ing equal opportunity to religion by use, interpre- tation, or enforcement of the zoning code in such a manner that it prevents home worship; from dis- ___________________(footnotes) 14Any attempt to enforce the code in violation of the Fair Housing Act or constitutional rights would, of course, be illegal even without injunctive relief. However, as the government argues, a preventive injunction can be enforced by contempt sanctions without the necessity of instituting new litigation. l5 We do this despite the Supreme Court's teaching in Rizzo v. Goode, 423 U. S. 362 (1976), that, in light of considerations of federalism, "[w]here . . . the exercise of authority by state officials is attacked, federal courts must be constantly mindful of the `special delicacy of the adjustment to be preserved be- tween federal equitable power and State administration of its own law.'" Id. at 378, citing Stefanelli v. Minard, 342 U.S. 117, 120 (1951). We also ignore the more recent Supreme Court directive that equitable relief must be remedial in nature, i.e. it must be designed to restore as nearly as possible the victims of discriminatory conduct to the position they would have occu- pied in the absence of such conduct. Missouri" v. Jenkins, - U.S. -, 115 S. Ct. 2038 (1995). We do not see the relief requested as improving in any way the rights already exercised by the Orthodox in Airmont. The relief simply is insurance that there can be no challenges to their exercise of religion in their homes in the future. ---------------------------------------- Page Break ---------------------------------------- 24a criminating because of religion or interfering with the free exercise of religion in connection with hous- ing; and from taking any action that limits the availability of housing on the basis of religion. Spe- cifically, we will direct a revision of the zoning code so that it will not be construed to prevent home wor- ship, or to prevent persons from walking to and from religious services at such places of worship, or to prevent home worship services on any day in all residential zones. In addition, the phrase "place of worship" will be replaced with "free-standing place of worship" throughout the zoning code and will be re- defined so as to allow `a portion of the building to be dedicated as living quarters for clergy and their families; and the phrase "neighborhood place of wor- ship" will be added and will refer to larger structures used exclusively for the conducting of organized religious services, which will be permitted in all residential zones. In addition, as requested, we will order that the last two sentences of the definition of "Home Professional Office" be deleted.16 The government also requests that the Village be directed to retain applications for residential homes of worship for five years. In light of the changes made in the zoning code, we do not foresee the need for zoning applications. The government also requests ___________________(footnotes) 16 We do not wish to imply that we have any agreement whatever with the Ramapo approach to home places of wor- ship. While construing these as professional offices might have been a satisfactory politicaI solution to a difficult question, it is intellectually dishonest to categorize services involving up to fifty people as being an activity of a home professional office such as might be conducted by a doctor, lawyer or religious leader who simply consulted with a couple of members of his congregation. ---------------------------------------- Page Break ---------------------------------------- 25a that for five years the Village notify the government of any zoning and planning applications which relate to religious worship or changes in the zoning relating to religion. While we deem it highly unlikely, under the circumstances, that the Village would entertain anything relating to religion under the zoning laws, we see no harm in including that in the relief granted. Private Plaintiffs' Requests The private plaintiffs' main request for injunctive relief is a major one: they seek the dissolution of the Village. They argue that they have proved that the defendants have engaged in a pattern or practice of discrimination and that discriminatory intent was at the root of the incorporation of the Village and conse- quently, they maintain, they are entitled to this rem- edy. There are several fallacies to this argument. In the first place, there has been no finding of religious discrimination with respect to the incorporation of the Village of Airmont. Indeed, the jury found that the majority of voters who supported the incorpora- tion of the Village were not involved in religious dis- crimination. Moreover, the appellate decision re- manding the action focuses upon the change in the zoning code as to which no action has ever been taken. There is nothing in the Court of Appeals' decision even remotely suggesting that the Village must be dissolved. The Second Circuit has held, in Dean v. Coughlin, 804 F.2d 207, 213 (1986), that we should not use a sledgehammer where a more delicate instru- ment will suffice. We believe that the relief requested by the government and granted by this Court ade- quately meets the Second Circuit's concerns ex- pressed in their decision. ---------------------------------------- Page Break ---------------------------------------- 26a Another problem with the private plaintiffs' re- quest is that it has no support in either the statute or case law. The private- plaintiffs rely on Gomillion v. Lightfoot, 364 U.S. 339 (1960). That ease was virtually the converse of the present situation. The state legislature in Alabama had revised the boundaries of the City of Tuskegee so as to eliminate the famous black Tuskegee Institute which included most of the black residents of the City. The Supreme Court reversed this action, finding that it was contrary to the Fifteenth Amendment by depriving blacks of their right to vote on account of their race. Curiously, the private plaintiffs ask, alternatively, for relief similar to what the Supreme Court con- demned in Gomillion. They seek a plan to redistrict the Orthodox "who reside in some localized area of Airmont" back into the Town of Ramapo. We doubt that we could adequately ascertain what the localized area would be (The `six-lane New York Thruway forms a natural boundary between Ramapo and Air- mont.) Moreover, the Orthodox population in Airmont has increased since the formation of the Village. That relief also seems both contrary to the directions of the Court of Appeals and of doubtful legality in its own right. The Supreme Court recently ruled that the government may not establish boundaries accord- ing to religion. Board of Education of Kiryas Joel Village School District v. Grumet, - U.S. -1 114 S. Ct. 2481 (1994). As the Second Circuit has held, the purpose of the Fair Housing Act is to promote inte- gration, not to encourage segregation. Otero v. New York City Housing Authority, 484 F.2d 1122 (1973). Finally, the local government law of New York has provisions for alteration of municipality lines, incor- ---------------------------------------- Page Break ---------------------------------------- 27a poration or unincorporation of local villages. To the extent that a discreet area of Airmont could be de- scribed, we know of no inhibition on that area's hold- ing a referendum to remove itself from the Village of Airmont. The private plaintiffs also request relief similar to that requested by the government. (Indeed they join in all of the government's requests.) The remand instructed this Court that it "should consider . . . . whether injunctive relief may also be appropriate." LeBlanc-Sternberg, 67 F.3d at 432. While we question whether the private plaintiffs, w-hose rights have long been vested, require any injunctive relief at all, that which has been granted in the government's action will more than suffice. We believe that, to the extent that their requests are justified, they have been ade- quately encompassed by granting the government's requests.l7 DECLARATORY JUDGMENT AND NOMINAL DAMAGES While the Village disputes the need for declaratory relief, the Court of Appeals remanded the action for a declaration that the Village violated the Fair Hous- ing Act. Consequently, we have no alternative except to so declare. The action was also remanded for pur- poses of granting nominal damages to the private plaintiffs. The remand does not indicate in what ___________________(footnotes) 17 At times in dealing with the private plaintiffs' action in its opinion, the Second Circuit acts as if they were pursuing a class action. They were not. They were seeking money damages and the abolition of the Village on their own. Another Ortho- dox group, as mentioned above, has pending its own separate action. ---------------------------------------- Page Break ---------------------------------------- 28a amount the nominal damages should be, but the tradi- tional amount has been $1.00. Consequently, we award each of the private plaintiffs nominal damages in the amount. of $1.00. ATTORNEY'S FEES The remand decision. in this case did not mention attorneys' fees. The private plaintiffs, however, re- quest the Court to set a schedule for them to make an application for attorneys' fees as the prevailing par- ties in this action. We question whether the private plaintiffs are truly the. prevailing party in the private action. They lost to. the five individual defendant who are clearly prevailing parties. Moreover, to the extent that the private plaintiffs are the prevailing party against the Village, they have not prevailed on their major goals of recovering substantial monetary damages and having the Village dissolved. While the Supreme Court and the Second Circuit have been taking dramatically different approaches to the need for attorneys' fees to be proportionate to the success obtained, the Supreme Court has held that a plaintiff who obtains only nominal damages when suing for a much larger sum is usually not entitled to attorneys' fees, even though he technically qualifies as a pre- vailing party. Farrar v. Hobby, 506 U.S. 103 (1992); but see Cabrera v, Jakabovitz, 24 F.3d 372, 393 (2d Cir.), cert. denied, 115 S. Ct. 205 (1994). There is a practical reason for not awarding the private plaintiffs attorneys' fees here, Two of the prevailing defendants have an application pending for attorneys' fees.18 If we direct the Village to pay ___________________(footnotes) 18 This application was argued some time ago. However, after the appeal was fried and the appellate panel selected, this ---------------------------------------- Page Break ---------------------------------------- 29a attorneys' fees of the plaintiffs and the plaintiffs to pay the attorneys' fees of the two individual defen- dants, what we have will amount to directing the Village to pay the attorneys' fees of the individual de- fendants.19 We do not, however, rule on this matter at this time since no application for attorneys' fees as such has been made, rather a request that we set up a "sched- ule." The private plaintiffs' counsel are free to make any application which is timely, under the rules and the case law. The issue will be decided at that time. SO ORDERED. Dated: April 25,1996 White Plains, N.Y /s/ GERARD L. GOETTEL GERARD L. GOETTEL U. S.D.J. ___________________(footnotes) Court thought it prudent not to act upon their application at that time. This in fact, is a relief which two of the individual defen- dants, who were separately represented in this action, sought to obtain in the first place. ---------------------------------------- Page Break ----------------------------------------