Matter of Congregation Yetev Lev D'Satmar Inc. v Kahan

[*1] Matter of Congregation Yetev Lev D'Satmar Inc. v Kahan 2004 NY Slip Op 51515(U) Decided on October 22, 2004 Supreme Court, Kings County Barasch, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 22, 2004
Supreme Court, Kings County

Application of CONGREGATION YETEV LEV D'SATMAR, INC., Petitioner, v JACOB (JENO)(YAAKOV)KAHAN, et al., Respondents.

In the Matter of the Petition to Set Aside the Election of the Board of Trustees and Officers of CONGREGATION YETEV LEV D'SATMAR Held from the 13th to the the 24th of May, 2001 and "Certified" 41256/2001 on May 24, 2001, et al., Petitioners, - against (JENO) (YAAKOV) KAHAN, et al., Respondents.

CONGREGATION YETEV LEV D'SATMAR, INC., - against -

against

26 ADAR N.B.CORP, et al.,







28989/2001

Melvin S. Barasch, J.

In this longstanding case, there are four motions presently before the Court. Petitioners purport to be Congregation Yetev Lev D'Satmar, Inc. (the "Congregation"), its officers and [*2]certain board members duly elected in an election conducted on May 12, 2001. Respondents, who conducted their own, separate election on May 24, 2001, assert that it is they who were duly elected as the rightful officers and board members of the Congregation. Each side maintains that only they were authorized to conduct elections on behalf of the Congregation and that only their election and resultant electees were therefor valid.

Background

Chasidism

The Congregation is the umbrella organization of the Satmar sect of Chasidic Judaism. Chasidism is a Jewish movement that was started by Rabbi Israel Baal Shem Tov — also known by the acronym the "BeShT" — in Russia during the mid-18th century. Chasidim (or Chosid in the singular), the name given to people who associate with movement, aspire to be very pious in all aspects of their daily life. They are generally recognized by their distinctive style of dress. Men sport full beards and sidelocks known as paiyos, wide brim hat (or on Sabbaths and holidays a fur hats known as a shtreimel), and long dark coats. The women wear scarves or other head coverings and modest dresses.

After the death of the BeShT around 1760, his movement was spread throughout Europe by his disciples. Groups of Chasidim traditionally attached themselves to a "Rebbe", a dynamic individual who was believed to be spiritually close to G-d. Rebbes were also referred to as Tzadikim or righteous. Chasidim passionately followed their Rebbes and sought their advice in all aspects of daily life and community. Rebbes and their Chasidim were traditionally identified by the name of the city or locality from whence they hailed.

The Beginnings of Satmar - Rabbi Joel Teitelbaum

The modern day Satmar sect was founded in the United States after World War II by Rabbi Joel Teitelbaum (1887-1979). Rabbi Joel Teitelbaum, a Holocaust survivor, was reputed to be a dynamic Hungarian Jewish Talmudic scholar who served as the last elected Chief Rabbi of the orthodox Jewish community of Satu Mare, a city straddling the Rumanian-Hungarian border. Although he was Chasidic, the official rabbinical office Rabbi Joel Teitelbaum held in Satu Mare was for the benefit of the entire orthodox Jewish populace of the city, Chasidic and non-Chasidic alike.

Following the war and after residing in Israel for a short while, the Rabbi eventually made his way to the United States and settled in the Williamsburg section of Brooklyn, New York. Once there, Rabbi Teitelbaum founded his Chasidic sect — which became known as Satmar after his pre-war home town — together with a fledgling group of adherents. Rabbi Teitelbaum was now referred to as the Satmar Rav, Satmar Rebbe or Grand Rabbi/Rebbe of Satmar.

In 1948, the community formally incorporated as Congregation Yetev Lev D'Satmar, Inc. Official bylaws were promulgated in Yiddish setting forth the purpose of the Congregation, the functions of the Grand Rebbe, officers and congregational officials and employees as well as issues involving membership and life in the closed-knit, insular community.

The Satmar community greatly flourished under Rabbi Joel Teitelbaum's leadership. Because of its meteoric growth, several Satmar communities branched out throughout the New York area as well as in Canada, Europe and Israel. All Satmar Chasidim, wherever situated, paid homage to the Grand Rebbe and acknowledged him to be their incontrovertible leader and the sine qua non for being labeled with the appellation Satmar.

[*3]Kiryas Joel

As the Williamsburg nucleus of Satmar Chasidim expanded beyond its geographic bounds, there was a need for more residential space. In 1974, Rabbi Joel Teitelbaum founded a new Satmar community in Monroe, New York as a distinct village with its own municipal government . The village was named Kiryas Joel in honor of the esteemed Grand Rebbe. In 1981, The Satmar community in Kiryas Joel incorporated under the name Congregation Yetev Lev D'Satmar of Kiryas Joel, Inc. The stated purpose of incorporation was (a)to establish and maintain a school for religious education in accordance with the tenets of the spirit of orthodox traditional Judaism.(b)To maintain and further the philosophy and customs of the Great Chasidic Rabbi Joel Teitelbaum.(c) To maintain a synagogue of religious worship and prayer at the principal place of worship of the Corporation(d)To operate and maintain a Cemetery to the extent permitted by the Religious Corporation Law of New York State.(e)The foregoing enumeration of purposes and objects shall not be held to limit and restrict in any manner the powers of the Corporation, but it shall be entitled to have all the powers that Religious corporation may have pursuant to the laws of the State of New York. [sic].

Rabbi Moses Teitelbaum

Rabbi Joel Teitelbaum passed away in 1979. He left no sons. Rabbi Moses Teitelbaum, a nephew of the deceased Grand Rebbe, was chosen a few years later as his uncle's heir and replacement. Rabbi Moses Teitelbaum, who continues to serve as Grand Rebbe of Satmar to this day, was indisputably imbued with all of the authority and command of power that his predecessor enjoyed.

Rabbi Moses Teitelbaum has two sons who are prominent rabbis in their own right. Rabbi Aaron Teitelbaum ("Rabbi Aaron"), the elder son, was appointed many years ago by his father to serve as Chief Rabbi of Kiryas Joel, a position which he holds to this day. He is known in his official capacity as the Kiryas Joel Rov (Rabbi).

Sometime thereafter, the current Grand Rebbe appointed his younger son, Rabbi Zalman Leib Teitelbaum ("Rabbi Zalman") to serve as Chief Rabbi of the Williamsburg community of Satmar and is thus titled the Williamsbuger Rov. According to respondents, Rabbi Zalman was also designated by the Grand Rebbe to be his father's eventual successor as Satmar Rebbe.

The Feud

As a result of the latter appointment, a far-reaching feud erupted between the siblings and their respective adherents. As the polarization of the two sides escalated, Satmar Chasidim began to be identified as either Aaronis or Zalis depending upon to whom they pledged their allegiance.

The polarization has so insidiously divided the two camps to the point that they each [*4]dispute the other side's legitimacy to be identified as true Satmar Chasidim. Control of the of the Congregations' synagogues, cemetery, assets, charitable, educational and religious institutions and even its corporate name has been hotly contested both in and out of the judicial forum.

History Leading up to Current Judicial Proceedings

According to petitioners, a significant event that served as a catalyst which escalated this longstanding litigation took place in December 2000. It asserts that all the elected members of the Congregation's board of directors were directed by an unelected group of rabbis to either resign their positions or sign a document ceding their authority to those rabbis. Upon their refusal to accede to either ultimatum, a new "shadow" board of directors, described by petitioners as "dissident members" in violation of the Religious Corporation Law, was set up by respondents.

Petitioners' adherents countered by holding elections. The election, which took place on May 12-13, 2001, resulted in the election of Berl Friedman as president, Sandor Oberlander, Isaac Rosenberg and David Eckstein as vice-presidents and David Markowitz, Elias A Horowitz and Ben Werczberger as gaboim/treasurers of the Congregation. Petitioners assert that the election held under its auspices was certified on May 18, 2001.

According to respondents, the genesis of the dispute was spawned by the Grand Rebbe's appointment of his younger son Rabbi Zalman Leib to the position of Williamsburg Rov. Evidently, this appointment has been perceived by the community to also be a designation of Rabbi Zalman Leib as heir apparent to his father's position as Grand Rebbe. A group of people of whom respondents refer to as dissidents, including certain members of the board and others who were partial to the Grand Rebbe's older son, Rabbi Aaron but in opposition to the younger Rabbi Zalman Leib, were angered by the Grand Rebbe's appointment and consequently launched a rebellion against the Grand Rebbe and most of the remaining board members. This roster of "dissidents" included Berl Friedman, Isaac Rosenberg, who had been members of the board, and Sandor Oberlander, David Eckstein, David Markowitz, Elias Horowitz and Ben Werczberger who were not board members. Respondents assert that most of the aforesaid individuals were not even members of the congregation. Another individual, Moshe Yaakov Yosef Brach, whom respondents described as a convicted felon and federal prison escapee and who was also not a member of the congregation, actively joined and enthusiastically participated in the rebellion spearheaded by Berl Friedman and his associates (this group hereafter referred to as the "petitioners").

As the respondents tell it, after the Grand Rebbe refused to be swayed by the dissenters, they launched a campaign of violence and intimidation which included disruption of religious services and other congregational functions. In December 2000 and January 2001, the petitioner group expressly refused to recognize the authority of and affirm allegiance to Rabbi Zalman Leib. On January 14, 2001, the petitioner group purportedly held a meeting in the name of the Congregation at a catering hall where they announced that they would be holding elections.

According to respondents, the aforesaid acts were deemed treasonous to the Congregation and the Grand Rebbe and a panel of rabbinical judges ruled that Messrs. Friedman and Rosenberg be expelled from the congregation. A short time later, the board expelled these two individuals and stripped them of their positions on the board. The Grand Rebbe also directed and the board implemented the removal of two other individuals, David Markowitz and Chaim Gross, from the board. Respondent Jeno Kahan, who had served as co-president together with [*5]Berl Friedman since 1998, now became the sole president of the congregation. With the exception of the four individuals removed, the board composition remained the same.

This respondent board now resolved to conduct its own elections. An election committee was set up and methods of casting votes were selected. Although absentee balloting was prohibited in the past, the respondents assert it was now necessary because many members allegedly expressed a fear of physical and verbal intimidation by the other camp and, absent this alternative means, would have otherwise been unable to vote. Balloting safeguards were put in place and the actual voting was monitored by two independent, non-Satmar observers. Prior to the elections, notices had been published in the Satmar newspaper Der Yid, and posted in the main synagogue advising the membership of the elections and of their ability to nominate a slate of candidates, the date, time and place of the election . Respondents claim they even offered dissenting members of the congregation the right to submit their own competing slate, but that offer was not taken up even after respondents extended the date of their election to accommodate submission of a competing slate.

Respondents' election was completed and certified by Sol Wertheimer, the chairman of the election committee and, in a separate document, by the Grand Rebbe himself on May 24, 2001. Among respondents' electees were Jeno Kahan as president, Solomon Sander as vice-president, and Solomon Wertheimer and Moses Zupnick as financial secretaries.

Litigation and Outstanding Motions

Petitioners commenced an Article 75 proceeding seeking to compel religious arbitration regarding the dispute in the leadership of the Congregation. In October of 2001, petitioners voluntarily discontinued that proceeding. That same month, petitioners commenced a second action seeking a determination under not-for-profit Corporation Law 618 that respondent's election was invalid.[FN1]

Respondents counterclaimed 1) for declaratory judgment judicially determining and declaring that the Respondents' electees were validly elected and that they are the duly elected officers authorized to act on behalf of the Congregation; and 2) for injunctive relief enjoining petitioners from exercising any authority in regard to congregational matters.

Litigation between the parties has unfortunately been mired by an ugly history. There have been issues of judge shopping and allegations of violence and bribery. On February 6, 2002, in an effort to prevent conflicting decisions, Hon. Michael L. Pesce, the then administrative judge of Kings County directed that all matters involving the Satmar litigation (Index Nos. 28989/2001, 13224/1990 and 41256/2001) be assigned to this Court. Justice Pesce's administrative decision was affirmed by the Second Department in September 2003 (308 AD2d 446).

Over the past months after the Second Department returned the matter back to this Court, there has been a superfluity of motion practice. Old motions were argued and submitted, new motions were brought (some were withdrawn), argued and submitted and, thankfully, certain [*6]significant side issues were resolved. Despite several adjournments, most of which were at the request of counsel, the interest of the community in this litigation did not waiver. At every court appearance, the audience section of the courtroom was always packed with community members from both sides of the dispute. Transcripts of the proceedings were posted on Chasidic internet chatroom sites within hours of the arguments.

As stated above, there are but four technical motions that remain in need of resolution. Specifically, they are:

1.Petitioner's motion for an order dismissing respondents' counterclaim;

2.Respondent's motion for an order clarifying prior orders of this Court directing that, pending the ultimate resolution of this matter, respondents be authorized to conduct the day-to-day administration of the congregation;

3.Petitioner's application pursuant to Not-for-Profit Corporation Law §618 for an order voiding respondent's election of May 24, 2001 as unauthorized; and

4.Petitioner's alternative request (to motion no. 3) for a preliminary injunction barring respondents from interfering with the rights of petitioners to discharge the offices to which they assert they were elected to on May 12, 2001.

The Real Issues

If this was Hollywood, then in a manner reminiscent of the old "To Tell the Truth" television game show, the audience or, in this case, the Court would await that golden moment for the emcee Bud Collyer to announce:

"Will the real Satmar Chosid please stand up!" But sadly, this not a Hollywood script. It is an unfortunate real life nightmare that has effected a significant population of Chasidic individuals who aspire to be true to their faith and perpetuate the Satmar legacy as founded and promulgated by their late, great leader Rabbi Joel Teitelbaum and continued to this day by the current Grand Rebbe, Rabbi Moses Teitelbaum.

As stated earlier, it is no secret that the two factions have been polarized by their support for one or the other of the Grand Rebbe's two sons. At its core, this is the dispute. There are ancillary issues which have been used to dress and color this core issue in an effort to have this far-reaching dispute resolved by a secular court.[FN2] These issues will become apparent as we [*7]discuss the positions of the two sides in further detail.

Petitioners' Claims

It is petitioners' position that Berl Friedman, a gentleman in his eighties, is a lifelong member of Satmar. His father had been a founding member of the Congregation. Berl Friedman had become a board member several years ago and was co-president. Petitioners assert that, by virtue of his office and the authority granted by the congregational bylaws, Berl Friedman was entitled to call for the elections he did, that the elections were properly held and were open to all members of the Satmar community at large, that he and his slate were victorious and the results confirming him as president and his fellow electees in their respective offices were certified.

Petitioners further assert that their election (which took place before that of respondents) was the only authorized election, that respondents have not legally challenged their election and that petitioners' electees ought, therefore, be allowed to assume their elective positions and take the reigns of the Congregation's administration. Petitioners in addition claim that respondents have not properly challenged petitioners' election within the appropriate statute of limitations and that respondents' elections are therefore binding.

As to certain ancillary, but very significant issues, petitioners — although conceding that The Grand Rebbe, Rabbi Moses Teitelbaum is fully vested with all of the powers and authority that his predecessor/uncle Grand Rabbi Joel Teitelbaum had held — contend that the Grand Rebbe's authority is limited by the congregational bylaws to spiritual matters exclusively. That limitation deprives the Grand Rebbe of authority to interfere with the Congregational board and its officers whose function is to minister the "non-spiritual" day-to-day operations of the Congregation and its derivative organizations. The bylaws, under petitioners' interpretation, do not allow for the Grand Rebbe's interference in matters of election and he, likewise, lacks the power to remove a board member. Petitioners further assert, that the Grand Rebbe has in fact taken no position on the issues dividing the parties, that any pronouncements to the contrary are sham, and that the petitioners have been denied access to the Grand Rebbe by his minions who are solidly in respondent's camp.

In terms of who is eligible to vote, petitioners maintain that all Satmar in all communities should be allowed to participate in the communal Williamsburg elections. While there are branch communities in upstate New York and beyond, allegiance to the Satmar Rebbe unites all Satmar into the original centralized Williamsburg seat of Satmar and should entitle anyone who follows Satmar practices and joins in its membership to vote, despite their maintaining a residence beyond the Williamsburg borders. In this regard, petitioners claim that respondents election was flawed in that bonafide members of the Satmar community were prevented from casting their votes. Petitioners also question respondents' allowance of absentee and/or mail-in ballots in contravention of the bylaws and previous practice.

[*8]Respondents' claims

Respondents maintain that the Grand Rebbe's authority is absolute and binding in all matters, spiritual or otherwise. It is and has always been the way of Satmar to show absolute fealty to the Grand Rebbe and his dictates regardless of the subject matter. That is the definition of and the raison d'etre of being a Satmar Chosid. According to respondents' interpretation, neither the bylaws nor historical practice provide any basis for placing any limitations on the Grand Rebbe's authority. The Grand Rebbe can neither be impeached nor fired. If one disagrees with the Grand Rebbe, he may either acquiesce or cease to be Satmar.

In this light, respondents maintain that the Grand Rebbe, who with the same undisputed authority appointed his son Rabbi Aaron to be the Chief Rabbi of Kiryas Joel, had the incontrovertible right to appoint his son Rabbi Zalman Leib to be the Chief Rabbi of Williamsburg. Similarly, when Berl Friedman and his colleagues disputed the Grand Rebbe's appointment and the directives he allegedly set forth, the Grand Rebbe had the right to and did expel the group from Satmar membership. As a result of his expulsion, Berl Friedman was also stripped of his official office of president and board member. Respondents argue that Berl Friedman was therefore devoid of any authority to call for elections and that any elections thus held were a nullity.[FN3]

In terms of directly challenging petitioners' election, respondents have taken the position that they need not technically challenge same and are therefore not subject to any technical statute of limitations. Instead, they seek a declaration by this Court that their election was the only authorized and properly conducted election. It is respondents' position that they need not go about challenging every sham Satmar who, without authority, claims to speak for the congregation. Respondents asset that their election was properly called for by the reigning president, was appropriately noticed and published, it was held at its official congregational location monitored by its election chairman together with two non-Satmar observers to ensure that only people eligible to cast a ballot did so, and that the results were certified by the election chairman and, by his own signature, the Grand Rebbe himself.

In terms of voter eligibility, respondents maintain that Satmar Chasidim in outlying communities were not necessarily members of the Williamsburg community entitled to cast their vote. They point out that those who reside in Monroe (Kiryas Joel) are members of a wholly separate, distinct corporate entity known as Congregation Yetev Lev of Kiryas Joel, Inc.

Analysis

The first issue the Court must address is the status, authority and powers of the Grand Rebbe. For that, we turn to the Congregational bylaws.

The Bylaws and the Extent of the Grand Rebbe's Authority [*9]

As stated earlier the Satmar Chasidic sect was founded in 1948 by the original Satmar Rebbe, Rabbi Joel Teitelbaum. In 1952 at the behest of the Grand Rebbe, bylaws were promulgated in the Yiddish language to foster a sense of formal organization to the growing community.

Article 8 of the bylaws specifically addresses the powers of the Grand Rebbe.[FN4] As translated ,it reads as follows 1.The most revered teacher, Rabbi Joel Teitelbaum, may he live long and be well, is our local rabbi, may it be for many years to come. Nobody can perform his functions without his consent. He is the only authority in all spiritual matters. No rabbi, ritual slaughterer or teacher can be chosen without his consent. His decision is binding on every member.

The translation of the third sentence has been a bone of contention between the parties. Petitioners assert that the sentence clearly limits the Rebbe's authority to the realm of spiritual matters. Anything beyond the spiritual or ecclesiastic would be the province of the officers and the board as delineated by other articles in the bylaws. Respondents maintain that neither the tenor of the Article nor the historical practice since the founding of Satmar bears out any indicia limiting the Grand Rebbe's powers.[FN5]

In terms of analyzing the entire Article in relationship to the import of the bylaws as a whole, the Court finds that the subject sentence was not intended to limit the Grand Rebbe's powers. On the contrary, it was clearly meant to enhance his powers and authority. The sentence just before the third reads:

[n]obody can perform his functions without [the Grand Rebbe's] consent (emphasis added).

There is no delimiting phrase to indicate that the scope of the Grand Rebbe's consent pertains only to an individual and/or a function in the realm of the ecclesiastic. Similarly, the sentence after the subject sentence reads No rabbi, ritual slaughterer or teacher can be chosen without his consent (emphasis added).

Even arguendo, if the terms "rabbis" and "ritual slaughterers" are meant in an ecclesiastic sense, the term "teachers" may not necessarily be so interpreted. While Rabbis are thought of [*10]teaching religious matter, teachers may also include those who teach math, reading, or any other secular subject. Moreover, the Article entitled Officers of the Congregation sets forth as one of the duties of the officers is to make proposals to the general membership concerning the "election of a teacher, ritual slaughterer...or any other employee who receives a salary from the congregation." Despite this authority granted to the board and membership, to hire employees, the clear import of the bylaws is to invest the Grand Rebbe clearly with the right of consent or veto by dint of the bylaws' non-limiting proviso that no one may perform his functions without the Grand Rebbe's consent.

The final sentence of Article 8 reads His [the Grand Rebbe's] decision is binding on every member (emphasis added).

This unambiguous phrase cogently concludes the theme of this Article's intent to fully endow the Grand Rebbe with consummate authority over every aspect that effects members of the community without resort to appeal.

The Grand Rebbe is not a traditional clergyman hired by a religious congregation. There is no contract of employment. He is neither hired by the community nor is he subject to dismissal from his position. There is no provision granting the Grand Rabbi an official salary from the Congregation. [FN6] He is simply accepted as the indisputable leader of the sect.

That this in fact was the true intent of the drafters of the bylaws is further evident in the reading of Article 2 of the bylaws entitled Purpose of the Congregation. It reads

1.The Congregation was founded to unite Jews who desire to conduct themselves and educate their children according to the ways of our forefathers and our holy teachers under the leadership of the most venerable teacher, Rabbi Joel Teitelbaum, may he live long and well, the head of the religious Court of Satmar. 2.The prayers and arrangements with regard to our Beit Midrash (place of learning) must be strictly according to the religious code of Jewish law (Shulchan Aruch) and the customs of our Rabbi, may he live long and be well.

3.To maintain and take care of all holy institutions and the institutions that Orthodox congregations have to have according to the laws set forth by the great rabbis, the founders of orthodoxy in old Hungary with the approval of the holy venerable Rabbi, may he live long and be well (emphasis added).

This Article makes it abundantly clear that the entire purpose of the existence of Satmar is to unite like minded individuals in conducting themselves and their lifestyles in a manner that meets with the approbation of the Grand Rebbe. Defiance of the Grand Rebbe would seem to constitute blasphemy and contradict the very purpose for which the sect was founded. That an organizational system was set up to run the mundane day-to-day operations of the community [*11]does not serve to obviate the Grand Rebbe's authority and decision making power which is necessarily binding on all members. Moreover, subdivision 3 above spells out that the maintenance of all Satmar institutions, whether "holy" or merely necessary for the needs of the community, must conform with and meet the approval of the holy venerable [Grand ] Rabbi. This leaves no doubt that in every aspect of anything Satmar, the final arbiter is the Grand Rebbe himself. His word is supreme from which there is no appeal. His decision is binding upon every member.

Secular Law and Religious Organizations

"[The] First and Fourteenth Amendments permit hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters. When this choice is exercised and ecclesiastical tribunals are created to decide disputes over the government and direction of subordinate bodies, the Constitution requires that civil courts accept their decisions as binding upon them." (Serbian Eastern Orthodox Diocese v Milivojevich, 426 US 696, 724-725; see also Kedroff v St. Nicholas Cathedral, 344 US 94, 107-110.)

This secular Court, very much mindful of the far-reaching consequences of the determinations to be made herein, has carefully weighed whether this is the appropriate forum to render the declaratory relief sought. Courts across the nation, including this one, are reluctant to interfere with the internal affairs of religious groups. As an old rule of thumb, "causes spiritual must be judged by judges of the spiritual and causes temporal by temporal judges." (24 Henry VI [YB] 8, ch 12 [1532]) .

During our Nations infancy, Chief Justice John Jay, expressed his thoughts that religious rights "are, by nature, subject to no control but that of the Deity .... No opinions are dictated; no rules of faith prescribed; no preference given to one sect to the prejudice of others" (Jay, The Charge of Chief Justice Jay to the Grand [*871] Inquest of the County of Ulster, on the Ninth Day of September, 1777, Kingston, NY, 1777, pp 9-10).

American courts, both State and Federal, have uniformly held that "in matters purely religious or ecclesiastical, the civil courts have no jurisdiction" (Watson v Garvin, 54 Mo 353, 378.) The Supreme Court delineated the First Amendment as resting "upon the premise that both religion and government can best work to achieve their lofty aims if each is left free of the other within its respective sphere" (Illinois ex rel. McCollum v Board of Educ., 333 US 203, 212), and the First Amendment was intended to prevent "a union of government and religion [that] tends to destroy government and to degrade religion" (Engel v Vitale, 370 US 421, 431).

James Madison labeled the suggestion that "the civil magistrate is a competent judge of Religious truth as an "arrogant pretension falsified by the contradictory opinion of Rulers in all ages, and throughout the world." (II The Writings of James Madison [G. Hunt ed, 1901], pp 183-191.)

Despite these admonitions to the contrary, courts have in limited circumstances accepted responsibility to adjudicate certain disputes involving religious organizations where it felt comfortable that it could avoid "excessive government entanglement with religion" which truly threatens private liberty and public order alike (Walz v Tax Comm. of City of N Y, 397 US 664, 674). Specifically, where the matter to be decided does not involve questions of discipline and doctrine but is a temporal matter, the court may inquire and consider same in the light of the civil [*12]contractual rights and obligations of the parties (see Kupperman v Congregation Nusach Sfard, 39 Misc 2d 107).

The Supreme Court has, however, observed that, while the civil courts have general authority to resolve disputes between rival religious factions, that authority is confined by the First Amendment, which "prohibits civil courts from resolving church property disputes on the basis of religious doctrine and practice" (Jones v Wolf, 443 US 595). Nonetheless, "consideration of doctrinal matters, whether the ritual and liturgy or worship or the tenets of faith," is precluded by the First Amendment. Id., citing Maryland & Virginia Churches v Sharpsburg Church, 396 US 367), (Brennan, J., concurring). See also Serbian Eastern Orthodox Diocese v Milivojevich, 426 US 696, 710) (where resolution of religious disputes affected control of church property and the structure and administration of the Diocese, matter was "for ecclesiastical and not civil tribunals").

Each of the parties has asked this Court to validate their respective elections. While either side might presume this Court has the ability to do by reference to "neutral principles of law",[FN7] this is not possible in our situation. As stated earlier, in cases involving a dispute between two or more religious factions, the Court must look beyond the allegations of the pleadings to ascertain what lies at "the heart of [the] controversy" (Kedroff v St. Nicholas Cathedral of Russian Orthodox Church, 344 US 94, 122).

In Congregation Beth Yitzhok v Briskman (566 F Supp 555 [EDNY 1983]) the Federal Court was also faced with issues not too dissimilar to ours involving competing factions in a Chasidic sect.

Rabbi David Yitzhok Eizek Rabinowitz became the Skolyer Rebbe In 1920. The Skolyer Chasidic sect was established in the mid-1700's in Southeastern Poland. This Chasidic leader and his followers emigrated to the United States in 1939 where they founded two religious corporative institutions. All went well until the Skolyer Rebbe passed away in 1979. While the deceased Rebbe had left three sons, each of them declined to assume their father's title and mantel of leadership. The plaintiffs who were members of the Rebbe's Chasidic institutions argued that, under such circumstances, the title passed to the deceased Grand Rebbe's eldest grandson.

Plaintiffs sued two of the three deceased Skolyer Rebbe's sons alleging that, upon the death of Rabbi Rabinowitz, defendants began to engage in unlawful conduct and acts of converting to their own use, the property of the Skolyer Rebbe; opening a "bogus" bank account in a name similar to that used by plaintiff institution; embezzling money from plaintiffs' bank accounts, and redepositing that money in the "bogus" account; seizing plaintiffs' mailing lists and then soliciting donations, purportedly on behalf of the Skolyer Rebbe and other such acts constituting violations of Section 5 of the New York Religious Corporation Law (prohibiting diversion of funds from religious corporations), and of Section 133 of the New York General Business Law (prohibiting the use of a name or address with intent to deceive).

Defendants contested plaintiffs' assertion that the unwillingness of the Skolyer Rebbe's [*13]sons to serve caused the position to devolve upon the grandson. they argued that the grandson was never "properly selected" as the new Skolyer Rebbe because it is the children of the Skolyer Rebbe who are responsible for selecting a successor acceptable to the family, and they never agreed to the plaintiffs' choice of grandson for the position. Defendants further argued that they, as children of the late Skolyer Rebbe, were entitled to settle his affairs and oversee his congregation.

The Federal Court found that since a dispute existed as to who was entitled to succeed the late Skolyer Rebbe, it was impossible for the Court to resolve the controversy without first wading deeply (and impermissibly) into religious issues. As Judge McLaughlin eloquently stated Such an examination in this case leads ineluctably to the conclusion that resolution of the allegations in the complaint first demands that I determine the proper succession to the post of Skolyer Rebbe. As tempting as that invitation may be, it does not appear to be the proper role of a federal court.

Defendants in Congregation Beth Yitzhok also contended that the Skolyer Rebbe had exercised complete, unquestioned and final authority over all aspects of the affairs of his Congregation and since defendants never accepted the designated eldest grandson as the new Skolyer Rebbe, they were entitled to manage plaintiffs' affairs as they saw fit.

Judge McLaughlin stated that the Federal Court was not in a position to ascertain whether defendants' understanding of the Skolyer Rebbe's prerogatives reflects applicable religious law. In dismissing the claim for want of justiciability, the Judge found that all of the issues raised involved interpretation of religious doctrine which must necessarily be resolved by the appropriate religious tribunal before the Court could determine whether defendants' acts complained of were violative of Federal law.

Here too, the tangential issues that would necessarily have to be determined in order to afford complete relief are all in the realm of requiring the application of ecclesiastic doctrine or law. For example, in order to determine who is member of the Congregation and thus eligible to vote, the Court would have to look to Article 3 of the bylaws entitled How to Determine Membership. As relevant, it reads 1.The following criteria determine whether a person can be accepted as a member of the Congregation:a.If he keeps the Sabbath as prescribed and does not intentionally transgress anything that is forbidden in our Holy Torah.b.If he generally conducts himself in the ways of the Torah and educates his children in the ways of the Torah and his wife does not go in public with her hair exposed.

As evident, determining whether anyone meets the above criteria requires ecclesiastic and not secular prowess. Likewise, in subdivisions c and d of Article 10 referred to above, the grounds upon which a member must be expelled from the Congregation would also require ecclesiastic determination. Since the questions of who are appropriate members of the [*14]Congregation and who are the original officers entitled to call for elections are hotly contested, this Court appropriately declines to don a rabbinical Shtreimel and ecclesiastical garb in order to make those determinations.

Interestingly, the Court noted at one of the recent appearances that the three major figures who would be significantly affected by the outcome of this litigation have failed to weigh in with their presentation of the issues. Despite an invitation from the Court to do so, neither side has submitted any affirmation from either Rabbis Aaron and Zalman Leib, the purported leaders of the two warring factions or from the grand Rebbe, Rabbi Moses Teitelbaum himself. No official reasons have been given for this glaring omission. Whereas the Skolyer Rebbe in the Congregation Beth Yitzhok action was deceased and a new Grand Rebbe had to be chosen, the Grand Rebbe of Satmar is still very much alive and, as respondents have repeatedly maintained, continues to fully function in his mantel of leadership, conducting services and shepherding his flock.

Decision

Based upon the foregoing, this Court declines to make any determinations in regard to declaring valid or voiding either side's election. As the Court has determined above, the Grand Rebbe, Rabbi Moses Teitelbaum is invested with the ultimate authority to determine all matters effecting Satmar. All petitions, counterclaims are dismissed and all outstanding motions in all three actions before the Court are denied to the extent stated herein. As the Grand Rebbe has not given any indication of his wishes to the contrary, the Court leaves intact the status quo in terms of day-to-day operations of the Congregation and its institutions until and unless the Grand Rebbe or any appropriately invested ecclesiastic tribunal rules otherwise.

This Constitutes the decision, order and judgment of the Court.

E N T E R ,

________________________

MELVIN S. BARASCH, J.S.C.

Epilogue

Throughout the litigation of these actions and pendency of the motion, there have been many incredible and outrageous attempts by certain individuals purportedly involved with and/or close to those involved the factional Satmar dispute to discredit, intimidate and improperly influence this Court. We think it would behoove the District Attorney of Kings County or any other entity charged with such authority to investigate and take every appropriate action against those involved in such activity.

Expenditure of vast sums of money and the exercise of enormous power have been the hallmarks of the above fight which have resulted in the following:

.Continuous hearsay claims of bribery throughout the course of the many hearings published on internet chatrooms sites, in newspapers and phone calls.

.An individual who purports to be a pious members of Satmar in the forefront of the factional dispute is a former convict who served time in Federal Prison for swindling and may now still face other criminal charges. He has inundated the fax to our Chambers and to top officials throughout the State and the Office of [*15]Court Administration with false, incredible stories claiming "deals" "bribery" etc. involving this Court and its staff.

.Retired judges, and other high profile attorneys were retained, not all for substantive purposes but rather for window dressing and in order to present an aura of the ability to legally maneuver the case in their respective favors. One such individual, who never appeared to argue substantive law, once stood up and asked to make a sealed motion for the Court to recuse itself. When the Court demanded that he state on the record the basis for his request, he responded that it was based upon double hearsay allegations that a tabloid newspaper was inquiring about. Some ten months after making that request, he has yet to file such a motion. This individual had failed in his several previous attempts based upon spurious grounds, on both administrative and appellate levels, to move this case to another Judge.

There is little doubt that the motivation of the individuals responsible for the acts described herein is to intimidate the Court and prejudice its decisions. False accusations concerning members of the Court's chambers have been published by fax, on the internet and members of the staff's family have been harassed at home as well. Chambers have been daily inundated by calls from individuals using pseudonyms and falsely claiming to be reporters or attorneys who are tangentially involved in the case seeking information.

Those who would hopefully investigate this matter should note that there are judges who would prefer to decline any assignment involving members of this group of litigants. The integrity of the Judiciary must be preserved. ________________________

MELVIN S. BARASCH, J.S.C. Footnotes

Footnote 1: A much earlier commenced action, Cong Yetev Lev D'satmar, Inc. v 26 Adar N.B. Corp., Index No. 13224/1990, seeks a determination of a claim to real property. The motions to be resolved in this decision are primarily addressed to the actions encaptioned under the two more recent 2001 index numbers, but the outcome of this decision will affect all three actions.

Footnote 2: It is axiomatic among Orthodox Jews that Jewish law as codified by the Shulchan Aruch; Choshen Mishpat 22,26 demands that disputes among Jews be adjudicated by a Jewish court referred to as a Beth Din unless permission is obtained from the Beth Din to submit the controversy to a secular court. In Jewish tradition, the failure to comply with these rules constitutes a Chilul HaShem [desecration of G-d's name] and could subject the violator to severe penalties including excommunication from the Jewish community. Indeed, under Article 10 of the Congregation's bylaws entitled Rights and Obligations of the Members, a member's declination to appear before a Beth Din or abide by its verdict is a grounds which mandates the member's expulsion from the Congregation. Despite numerous attempts at having the disputes submitted to a Beth Din, no agreement could be reached by the parties in that regard and hence, despite the gravity of the offence, this matter has continued before this Court.

Footnote 3: Respondents have pointed out, parenthetically, that Berl Friedman himself was not originally elected to the board. His ascension to such office was by virtue of appointment by the Grand Rebbe himself during a period of vacancy. Respondents find it curious that petitioners find no problem with accepting the notion that the Grand Rebbe had the authority to appoint a board member, but dispute that same authority to direct a member's expulsion from the Congregation.

Footnote 4: As stated earlier, it is conceded that a latter amendment made in the bylaws after the death of Rabbi Joel Teitelbaum conferred all of the powers and authority held by the original Grand Rebbe to his successor and nephew, Rabbi Moses Teitelbaum. The latter edition of the bylaws was printed in 1995.

Footnote 5: Curiously, a translation submitted by respondents unnecessarily omitted the word "spiritual" from the sentence. Clearly the translation of the Yiddish word "Geistige" as used in the bylaws is "spiritual" (see Modern English-Yiddish Dictionary, Uriel Weinreich, Schocken Books 1977) .

Footnote 6: While Rabbi Joel Teitelbaum was a salaried employee of the pre-war Satu Mare, it appears from some of his submitted writings that he did not receive a salary from the Satmar community he founded in the United States. It was on that basis that he declined to give sermons during certain designated times of the years that was expected of salaried rabbis.

Footnote 7: The application of "neutral principles of law", is the method under which the Court "relies exclusively on objective, well-established concepts of . . . law familiar to lawyers and judges" (Jones v Wolf supra, 443 US at 604).