THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
ARTICLES
THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT IN THE HUDSON VALLEY
Gerald Benjamin*
Two bills opposed by separate Chassidic-run Hudson Valley local governments met their demise in the closing days of the 2015 New York State legislative session. In the State Senate, majority Republicans declined to pass a measure giving the Board of Regents power to appoint a special monitor to oversee the operations of Rockland County’s East Ramapo School District.1 On the executive side, Democrat Governor Andrew Cuomo vetoed a bill that would have made it harder to annex additional territory to the Satmar Chassidic Village of Kiryas Joel.2 In East Ramapo, the conflict was internal to the school district. In-migration and rapid population growth gave a fast-growing Chassidic community control of a long-established school board;3 notably, Chassidic children do not attend public schools.4 Governance practices of the Board persistently diminished educational opportunities for public school children, many of whom were members of other racial or ethnic minority groups, while providing resources in support of Chassidic children in private schools.5 With no hope of gaining control of the school district, critics of the board and its practices sought state intervention.6
* Gerald Benjamin is a SUNY Distinguished Professor of Political Science and Director of The Benjamin Center for Public Policy Initiatives at SUNY New Paltz. 1 See S. B. 3821-A, 238th Reg. Sess. (N.Y. 2015); Joseph Spector, Criticism Follows Failed East Ramapo Monitor Bill, LOHUD (June 27, 2015), http://www.lohud.com/story/news/educ ation/2015/06/26/criticism-follows-failed-east-ramapo-monitor-bill/29343887. 2 See S. B. 5643, 238th Reg. Sess. (N.Y. 2015) (veto no. 186 (2015)). 3 See Michael Powell, A School Board That Overlooks Its Obligation to Students, N.Y. TIMES (Apr. 7, 2014), http://www.nytimes.com/2014/04/08/nyregion/a-school-board-that-over looks-its-obligation-to-students.html?_r=0. 4 Benjamin Wallace-Wells, Them and Them, N.Y. MAG. (Apr. 21, 2013), http://nymag.com/ news/features/east-ramapo-hasidim-2013-4/. 5 See id. 6 See, e.g., Editorial, Monitor Can Help Heal East Ramapo, LOHUD (June 8, 2015), http:// www.lohud.com/story/opinion/editorials/2015/06/06/east-ramapo-monitor/28631039/.
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With the second bill, the dispute was between the Village of Kiryas Joel, explicitly created to be entirely Chassidic, and non- Chassidic neighbors outside its borders.7 The village population was growing exponentially,8 and it sought more land through annexation.9 Neighbors feared a Hobson’s Choice—having to move out of their homes or becoming a minority in a community in which Chassidic religious authority was conflated with, and dominated, local governance.10 Annexation required agreement from the Town of Monroe, but it, too, had become largely politically controlled by Chassidic votes.11 With no power in Kiryas Joel and little in Monroe, opponents to annexation sought passage of a state law— general in language, specific in effect—that would make harder the extension of the village’s boundaries.12 Though decided at the state level (in itself interesting), these appear to be parochial disputes, only locally important. But in fact, they raise fundamental questions of governmental structure, system, and process in New York’s suburban and rural areas: should the creation and dissolution of local governments be an available tactic for use in intra- and intercommunity disputes? Where Chassidic populations are growing rapidly, and have become or likely will become a local political force, may we still rely upon the validity of the assumptions about community and democracy on which the state’s arrangements for local self-governance are based?
I. CLASHING IDEAS OF COMMUNITY Understanding clashing ideas of community and community membership is fundamental to approaching this question. Local governments are geographically defined.13 The boundaries of a “place” may have been initially drawn for administrative convenience, but over time become central to defining the
7 See Wallace-Wells, supra note 4. 8 Joseph De Avila, In Monroe, N.Y., Tensions Rise Over Proposals to Annex Land, WALL STREET J. (Sept. 4, 2015), http://www.wsj.com/articles/in-monroe-n-y-tensions-rise-over-prop osals-to-annex-land-1441381916. 9 See id. 10 See, e.g., Chris McKenna, Special Report: Clashing Cultures at Heart of Battle Over Kiryas Joel Annexation, TIMES HERALD: REC., http://www.recordonline.com/article/20150822/ NEWS/150829816 (last updated Aug. 23, 2015) [hereinafter McKenna, Special Report]. 11 See id. 12 See Chris McKenna, The Fray: Orange Municipal Leaders Back Annexation Bills, TIMES HERALD: REC. (June 6, 2015), http://www.recordonline.com/article/20150606/NEWS/150609 575 [hereinafter McKenna, Municipal Leaders Back Annexation]. 13 See Jonathan Boyarin, Note, Circumscribing Constitutional Identities in Kiryas Joel, 106 YALE L.J. 1537, 1543 (1997). THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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“community.”14 People come to be regarded as community members by living and engaging within those boundaries, in those places.15 And they have, or ought to have, standing as citizens in those places.16 Some places have populations that are demographically homogenous, others are heterogeneous.17 Whatever the level of diversity, there is a normative presumption—however imperfectly realized—that all in a place are part of the community.18 For Chassidic people, place is either irrelevant or incidental to the definition of community.19 The essence of their lives is religious communalism.20 An explicit goal of the Baal Shem Tov, the founder of the movement in 17th century Eastern Europe, was to have the entire “Jewish community . . . recognize and joyously participate in God’s actual presence in the entire world.”21 Community members are those who adhere to an extensive, strictly-defined set of inter- generationally transferred religious norms and standards.22 They share an understanding of the manner in which they must live in accord with those standards, conduct relationships with others who choose to live in that manner, and adhere to the authority of the community’s leader—the Rebbe—whose defining authority with regard to those standards they embrace in all elements of their lives.23 Communal boundaries are therefore social, not geographic. There are community members and “others;” for the latter category, the norm is exclusion, not inclusion.24 One cannot claim community membership by virtue of simply by being in a place. As a result, the
14 See id. at 1543 n.39. 15 See id. 16 See id. 17 See Abner S. Greene, Kiryas Joel and Two Mistakes about Equality, 96 COLUM. L. REV. 1, 4 (1996). 18 See Robert M. Cover, The Supreme Court, 1982 Term: Foreword: Nomos and Narrative, 97 HARV. L. REV. 4, 14 (1983). 19 See Boyarin, supra note 13, at 1548. 20 See id. at 1539. 21 LOUIS GRUMET & JOHN CAHER, THE CURIOUS CASE OF KIRYAS JOEL: THE RISE OF A VILLAGE THEOCRACY AND THE BATTLE TO DEFEND THE SEPARATION OF CHURCH AND STATE 14, 15 (2016). 22 See Sarah M. Sternlieb, Comment, When the Eyes and Ears Become an Arm of the State: The Danger of Privatization through Government Funding of Insular Religious Groups, 62 EMORY L.J. 1411, 1417–18 (2013). 23 See id. at 1418. 24 See H.S. Geyer, “Place” Qualities of Urban Space: Interpretations of Theory and Ideology, in 1 INTERNATIONAL HANDBOOK OF URBAN POLICY: CONTENTIOUS GLOBAL ISSUES 190, 191 (2007) (“‘[C]ommunity’ always implies differentiation or classification of some kind . . . [a]nd that is not possible without determining limits or boundaries, a depiction of certain people who fall inside relative to those who fall outside a particular boundary or definition.”). THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
1386 Albany Law Review [Vol. 80.4 place-based governmental jurisdiction serves the community; it neither defines nor delimits the community.25 Local government is one means for extending religious authority, and is a conduit for maximizing external resources available to community members.26 The manner in which emergency medical response is delivered in Orange County nicely illustrates these two contrasting ideas of community. Once regulatory requirements are met, the New York State Department of Health authorizes the provision of ambulance services within geographically defined “primary area[s] of operating authority.”27 The Kiryas Joel Emergency Medical Service (“KJEMS”) provides paramedic services both within the Village of Kiryas Joel and for the Orthodox Jewish population outside the village—members of the Chassidic community as that community defines it.28 This is ostensibly done as “mutual aid” to other local community-based emergency services.29 But according to one recent study, “those responses are not always clearly communicated to the home ambulance service. Local EMS officials indicate that there is a tacit understanding that KJEMS is willing to respond anywhere in Orange County to provide ambulance [service] for residents of Kiryas Joel or other Orthodox Jews.”30 Unlike for other EMS organizations, geographic boundaries do not define community for KJEMS’s delivery of this service. It sees itself as serving the entire Chassidic community, as it defines itself.31 The case of the “New Square Four” offers another example. Kalmen Stern, David Goldstein, Benjamin Berger, and Jacob
25 See id. (stating that while boundaries are sometimes geographically based, it is not always the case; some communities are culturally, intellectually, religiously, or economically based). 26 See, e.g., id. (“[I]ndividuals operate more regularly and more intensely within community context at the local level [and that is] where the social impact is direct and . . . felt the strongest on the individual.”). 27 See N.Y. PUB. HEALTH LAW § 3008(1), (7)(a) (McKinney 2017); see also id. § 3001(21) (“‘Primary territory’ means the geographic area or subdivisions listed on an ambulance service certificate or statement of registration within which the ambulance service may receive patients for transport.”); Municipal Certificate of Need (Muni-CON): An Overview, N.Y. ST. DEP’T HEALTH, https://www.health.ny.gov/professionals/ems/municipal_certificate _of_need.htm (last updated Jan. 2009) (defining “Primary Area of Operating Authority”). 28 See KENT GARDNER & CHRIS ROUND, KIRYAS JOEL’S PROPOSED ANNEXATION OF UNINCORPORATED LAND IN THE TOWN OF MONROE: AN INDEPENDENT ASSESSMENT OF THE CIRCUMSTANCES SURROUNDING THE ANNEXATION 60 (2015). 29 See id. 30 Id. 31 See GARDNER & ROUND, supra note 28, at 60 (“Local EMS agencies often avail themselves of [the mutual aid provided by the KJEMS] to provide culturally and medically appropriate care to this population.”). THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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Elbaum, all of the Village of New Square, were convicted of stealing more than $40 million in government funds through “a massive conspiracy to obtain by fraud . . . student financial aid, rental subsidies, social security benefits, and small business loans.”32 In support of their successful effort to obtain clemency for these men from President Bill Clinton, Rabbi David Twersky and other community leaders argued that most of the funds were not used for personal enrichment, but to benefit the community.33 In short, federal crimes were justified on the basis of a greater good—the Chassidic community’s interests.34
II. CHASSIDIC COMMUNITIES AND THE CREATION OF NEW HUDSON VALLEY LOCAL GOVERNMENTS Led by Rabbi Israel ben Eliezer, the Baal Shem Tov, the ultra- Orthodox Jewish Chassidic movement arose in 18th century Ukraine.35 Insular and mystical, it persisted in Central Europe for centuries.36 Most European Jews, including most Chassidic Jews, were murdered by Hitler’s Germany during the Holocaust.37 Remnants of several Chassidic communities reestablished themselves in Brooklyn.38 Beginning in the 1950s, settlements were sought in the Hudson Valley, proximate to New York City, to maintain communal character and cohesion while accommodating the needs of a fast-growing population.39 Over the years, because of extraordinary differences between the lifestyle, values, and culture of Chassidic community members and those of their surrounding suburban neighbors, tensions and communal conflicts arose.40
32 United States v. Friesel, 224 F.3d 107, 111 (2d Cir. 2000). 33 See Randal C. Archibold & Elissa Gootman, Behind 4 Pardons, a Sect Eager for Political Friends, N.Y. TIMES (Feb. 5, 2001), http://www.nytimes.com/2001/02/05/nyregion/behind-4- pardons-a-sect-eager-for-political-friends.html?_r=0. 34 See id. There were allegations that, under direction of Rabbi Twersky, the village delivered overwhelming support for Hillary Clinton in her U.S. Senate run against Republican Rick Lazio (1359 votes for Clinton, 10 for Lazio) in an effort to influence her husband’s—the President—pardon decision. In the same election, other Chassidic villages gave similar overwhelming support to Lazio. Hillary Clinton attended the President’s meeting with Chassidic leaders in the White House on December 22, 2000, after her election to the Senate. U.S. Attorney Mary Jo White, whose office had obtained the conviction, opened an investigation of the pardon. The investigation was dropped by her successor, James Comey. 35 See JEROME R. MINTZ, HASIDIC PEOPLE: A PLACE IN THE NEW WORLD 9 (1992). 36 See id. at 11. 37 See id. at 27. 38 See id. at 30. 39 See id. at 198–99. 40 See id. at 200. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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There were two results: the creation of some local governments to accommodate Chassidic needs, and the establishment of others to contain the Chassidic community’s growth and influence in the region.41
A. Local Authority to Create Villages in New York New York’s first general law authorizing the creation of villages was passed in 1847.42 The use of special laws to organize individual villages was constitutionally banned in 1874.43 The goal of general village legislation was to facilitate the delivery of a more extensive array of public services than towns were authorized by law to provide in more densely settled enclaves in New York’s rural hinterland, while relieving the state legislature from the burden of acting annually on dozens of matters significant to only a single locality.44 An important concomitant was to diminish the temptation for corruption for legislators required to cast votes on matters of no importance to themselves or their constituents.45 The use of non-partisan elections to select village leadership—and the conduct of the village elections at a different time and with different procedures than those used for other general purpose governments—suggests that these entities, like later-designed school districts, were conceived as “service delivery” entities distinct from those staffed through ordinary partisan politics.46 Under current New York law, a vote to create a village may be held in a place populated by five hundred persons or more on the petition of twenty percent of resident qualified voters or owners of more than fifty percent of the assessed value of property.47 The territory of the place may not include all or part of an existing village. It may be no more than five square miles in size, except if coterminous with: [T]he entire boundaries of a school, fire, fire protection, fire
41 See id.; Joseph Berger, Growing Pains for a Rural Hasidic Enclave, N.Y. TIMES (Jan. 13, 1997), http://www.nytimes.com/1997/01/13/nyregion/growing-pains-for-a-rural-hasidic-enclav e.html. 42 See Gerald Benjamin, The Evolution of New York State’s Local Government System 58 (October 1990) (unpublished paper prepared for Local Government Restructuring Project, on file with author). 43 See N.Y. CONST. art. III, § 17; Benjamin, supra note 42, at 64. 44 See Benjamin, supra note 42, at 59–60. 45 See Home Rule and the New York Constitution, 66 COLUM. L. REV. 1145, 1146 (1966). 46 See Gerald Benjamin, The Invisible Political World of New York’s Villages 12, 36 (2005) (unpublished paper) (on file with author). 47 See N.Y. VILLAGE LAW § 2-202(1)(a) (McKinney 2017). THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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alarm, town special or town improvement district; or . . . with parts of the boundaries of more than one [such district] . . . all of which are wholly contained within such limits and within one town; or . . . with the entire boundaries of a town.48 The referendum process is overseen by a town supervisor or supervisors.49 But beyond determining the legal sufficiency of the petition that he or she receives, the supervisor’s role is ministerial; the law speaks of a “Right to Election.”50 With suburbanization, the range of town powers and functions was vastly extended, largely obviating the need for village creation for service delivery.51 But the authority for local creation of villages remained, and was used. There are currently 551 villages in New York State.52 Thirty-two were established since the end of World War II.53 Eight of those were in the New York City metropolitan area, and more than half (seventeen) in the Hudson Valley.54 Village land use powers (planning and zoning) date to 1923.55 Towns gained similar powers for territory outside villages in 1927.56 One analysis prepared in 1990 observed: Most recent village incorporations have been classic examples of “forum shifting,” the result of the efforts of disaffected residents of suburban communities . . . to take control of land use and service delivery from a town board serving a larger area, sometimes with the additional hope of lowering local taxes.57 To cite one example, the Town of Ramapo (unsuccessfully, it turned out) sought to block the creation of the Village of Wesley Hills within its borders because, the town alleged, this incorporation was
48 Id. § 2-200(1)(b)–(d). 49 See id. § 2-202(1)(f). 50 See id. § 2-212. 51 See OFF. OF THE N.Y. STATE COMPTROLLER, INFORMATION FOR TOWN OFFICIALS 66 (2015), http://www.osc.state.ny.us/localgov/pubs/townoff/ito.pdf. 52 See What Do Local Governments Do?, N.Y. DEP’T ST.: DIVISION LOC. GOV’T SERVS., https:// www.dos.ny.gov/lg/localgovs.html (last visited Sept. 4, 2017). 53 See Villages Dissolved Since 1900 & Incorporated Since 1940, N.Y. DEP’T ST.: DIVISION LOC. GOV’T SERVS., http://www.dos.ny.gov/lg/village-inc-diss.html (last visited Sept. 4, 2017) [hereinafter Villages Dissolved & Incorporated]. 54 See Geography Explained, N.Y. ST. DEP’T LAB., https://labor.ny.gov/stats/lsgeog.shtm (last visited Sept. 4, 2017); Villages Dissolved & Incorporated, supra note 53. 55 See Christopher A. Cooper & H. Gibbs Knotts, Public Opinion on Land Use Policies, 75 POPULAR GOV’T 24, 24 (2009), http://sogpubs.unc.edu/electronicversions/pg/pgfal09/article4. pdf. 56 Benjamin, supra note 42, at 37. 57 Id. at 71. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
1390 Albany Law Review [Vol. 80.4 motivated by a desire to bypass the provisions of Ramapo’s comprehensive planning and zoning ordinance.58 The creation of one village on the border of another may also serve as a hedge against annexation of territory. As noted below, annexations have to be justified as in the overall public interest.59 This often means a claim that joining a village would make municipal services available to residents of the territory seeking annexation that are unavailable from town government—e.g., water, sewer, street lights, and public transportation.60 This is not true in contemporary New York; towns are now broadly empowered general purpose governments.61 Moreover, owners of land already within a village cannot credibly claim that its annexation to another village would gain them access to additional services that might be provided only by a village.62
B. Rockland and Orange Counties ‘‘There are two reasons villages get formed in Rockland,’’ said Paul W. Adler, the chairman of the county’s Jewish Community Relations Council in 1997.63 ‘‘One is to keep the Hasidim out and the other is to keep the Hasidim in.’’64 Villages are the only general purpose local governments in New York State that may be created entirely by local action.65 Six of those most recently created in the Hudson Valley are directly attributable to the rapid growth of the region’s Chassidic Jewish communities.66 New Square and Kaser in Rockland County and Kiryas Joel in Orange County were established at Chassidic initiative.67 Woodbury and Blooming
58 See In re Marcus v. Baron, 431 N.Y.S.2d 627 (Sup. Ct. 1980), rev’d, 445 N.Y.S.2d 587 (App. Div. 1981), rev’d, 442 N.E.2d 437 (N.Y. 1982). 59 See N.Y. GEN. MUN. LAW § 712(1) (McKinney 2017). 60 See, e.g., City of Fulton v. Town of Granby, 984 N.Y.S.2d 778, 780 (App. Div. 2014). 61 DIV. OF LOCAL GOV’T SERVS., N.Y. DEP’T OF STATE, LOCAL GOVERNMENT HANDBOOK 29 (6th ed. 2009), https://www.dos.ny.gov/lg/publications/Local_Government_Handbook.pdf. 62 See DIV. OF LOCAL GOV’T SERVS. & ECON. DEV., OFF. OF THE N.Y. STATE COMPTROLLER, OUTDATED MUNICIPAL STRUCTURES 3–4 (2006), https://www.osc.state.ny.us/localgov/pubs /research/munistructures.pdf [hereinafter OUTDATED MUNICIPAL STRUCTURES]. 63 Berger, supra note 41. 64 Id. 65 See OUTDATED MUNICIPAL STRUCTURES, supra note 62, at 4. 66 See URBAN ACTION AGENDA: HUDSON VALLEY PATTERN FOR PROGRESS, CHANGING HUDSON VALLEY—POPULATION TRENDS 15 (2015), http://www.pattern-for-progress.org/wp- content/uploads/2015/09/Population-brief-9-22-15-final.pdf [hereinafter POPULATION TRENDS]. 67 See Ryan Karben, Cuomo, East Ramapo and Hasidic Influence, NYACK NEWS & VIEWS (Apr. 30, 2014), http://www.nyacknewsandviews.com/2014/04/rkarben_cuomo_eramapo2014 THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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Grove in Orange County and Airmont in Rockland County were created explicitly to prevent the establishment of a third Chassidic village.68
1. New Square The Skverer Chassidic community purchased a farm in Spring Valley in 1954, and began to settle on the land in 1956.69 The Village of New Square, one of several villages in the Town of Ramapo, was created in response to an effort in 1961 by the Town of Ramapo to condemn the entire densely settled Chassidic area within it.70 Chassidic residents were systematically violating town zoning codes in pursuing housing and business practices they believed essential to community life.71 Incorporation of the village allowed the Chassidic community to preemptively adopt alternative land use regulations, validating practices not permitted by the Town of Ramapo.72 In 1982, overcoming strong opposition by the town government, New Square annexed an additional ninety-five acres.73 The village now has a land area of 0.36 square miles and was occupied in 2013 by 7,516 residents.74
2. Kiryas Joel
In 1974, the Satmar Chassidic community purchased a farm property in the Town of Monroe and began to build a development called “Monfield Homes.”75 It was about 0.7 square miles in size.76 Monroe zoning restricted residential areas to “‘single housekeeping
04/. 68 See Uriel Heilman, In Rockland County, non-Orthodox Try to Create Alternative to Hasidic Dominance, JEWISH TELEGRAPHIC AGENCY (Feb. 19, 2015), http://www.jta.org/2015/ 02/19/news-opinion/united-states/in-rockland-county-non-orthodox- try-to-create-alternative- to-hasidic-dominance; Fernanda Santos, Reverberations of a Baby Boom, N.Y. TIMES (Aug. 27, 2006), http://www.nytimes.com/2006/08/27/nyregion/27orange.html?_r=0. 69 See MINTZ, supra note 35, at 198, 199. 70 See id. at 200. 71 See id. at 199–200, 207. 72 See id. at 200. 73 See id. at 202. 74 See New Square, NY Community & Region, PROXIMITYONE, http://proximityone.com/acp/ 36/3650705.htm (last visited Sept. 6, 2017). 75 See George Dugan, Jewish Sect To Go To Orange County, N.Y. TIMES (July 21, 1974), http://mobile.nytimes.com/1974/07/21/archives/jewish-sect-to-go-to-orange-county-little-local- opposition-housing.html. 76 See generally MINTZ, supra note 35, at 207 (“Lefkowitz . . . offer[ed] . . . to incorporate the Satmar housing as a separate village of some 450 acres.”). THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
1392 Albany Law Review [Vol. 80.4 unit[s].’”77 When, in 1976, the town government discovered that eighteen of the twenty-five homes in the Monfield development were being used as multi-family apartments or for schools, synagogues, or retail sales, it immediately ordered that construction cease until zoning violations were corrected.78 By late 1976, there were over five hundred Satmar Chassidim living in Monfield—the minimum necessary number under New York law to create a village.79 Seeking to take the path first marked out by New Square, the Satmars, led by Rabbi Leibish Lefkowitz, sought incorporation of a village; this would allow the Hasidic community to enact its own zoning laws.80 Near simultaneously, non-Hasidic residents of Monroe began discussing proposals to file a counter-petition to incorporate a 550-acre village, which would have included the Monfield homes within its boundaries.81 If this alternative passed, the Satmars would have been unable to incorporate their village because New York State law prohibits a village from being incorporated inside an existing village.82 Town officials and the Satmar leadership negotiated a settlement in late October of that year.83 Potential village lines were drawn so as to include only members of the Satmar Chassidic community.84 Others were drawn out.85 When accepted by federal Judge Lee P. Gagliaru, this agreement resulted in a village with a land area of just over 0.5 square miles (i.e., 340 acres).86 Kiryas Joel was incorporated on March 2, 1977; one of its government’s first acts was to adopt zoning laws to permit twice Monroe’s population density.87 Later, a dissident religious faction on several occasions sought
77 See Hasidic Jews Fight for Upstate Haven, N.Y. TIMES (Oct. 17, 1976), http://www. nytimes.com/1976/10/17/archives/hasidic-jews-fight-for-upstate-haven-petition-monroe-in-ora nge.html?_r=0. 78 See id. 79 See N.Y. VILLAGE LAW § 2-200 (McKinney 2017); Hasidic Jews Fight for Upstate Haven, supra note 77. 80 See MINTZ, supra note 35, at 207. 81 See Hasidic Jews Fight for Upstate Haven, supra note 77. 82 See id. 83 See Bd. of Educ. v. Grumet, 512 U.S. 687, 691 (1994). 84 See id. at 690, 691. 85 See id. 86 See MINTZ, supra note 35, at 207. 87 See Villages Dissolved & Incorporated, supra note 53; see generally David N. Myers & Nomi M. Stolzenberg, Kiryas Joel: Theocracy in America?, HUFFINGTON POST: BLOG, http://www.huffingtonpost.com/david-n-myers/kiryas-yoel-theocracy-in-america_b_1124505.h tml (last updated Feb. 3, 2012). THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
2016/2017] The Chassidic Impact on Local Government 1393 the Village of Kiryas Joel’s dissolution, claiming that it was by its very nature an establishment of religion in violation of the U.S. Constitution.88 As summarized by federal Judge Jed Rakoff in his decision in Kiryas Joel Alliance v. Village of Kiryas Joel,89 the faction argued that the village’s “governmental affairs [were] impermissibly intertwined” with those of the dominant religious faction, Congregation Yetev.90 Two of the major arguments given in support of this view were: (1) that the Mayor of the Village [held] a leadership position in Congregation Yetev, and that his “dual religious and governmental roles” operate[d] to establish an official faith because his religious beliefs trump[ed] his governmental role with respect to his actions as Mayor, [and] (2) that all the other Village officials [we]re members of Congregation Yetev, and therefore [we]re controlled by the Grand Rebbe’s dictates.91 After review of previous higher court decisions, Judge Rakoff found little merit in these arguments.92 He ruled, as summarized by Professors David Myers and Nomi Stolzenberg, that “a community is not disqualified from establishing its own local government institutions merely because the residents of the community happen to be members of the same religious community.”93 Rapid population growth and the subsequent need for housing and other core municipal services (e.g., water and sewer) has been at the heart of the ongoing tensions between Kiryas Joel and residents of the surrounding areas.94 Women marry early and stay in the community.95 Large families are encouraged.96 Birth control is abjured.97 During the 1990s, the population of Kiryas Joel increased from 7,400 to 13,100.98 In the next decade, it grew to 20,175.99 In 2013, it was 21,894.100
88 Myers & Stolzenberg, supra note 87. 89 Kiryas Joel All. v. Vill. of Kiryas Joel, No. 11 Civ. 3982 (JSR), 2011 U.S. Dist. LEXIS 137074 (S.D.N.Y. Nov. 28, 2011). 90 Id. at *27. 91 Id. (internal citations omitted). 92 See id. at *33. 93 Myers & Stolzenberg, supra note 87. 94 See Santos, supra note 68. 95 See id. 96 See id. 97 See id. 98 See id. 99 Chris McKenna, Kiryas Joel Growth Eases; View Your Town’s Census Data, TIMES THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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Kiryas Joel may build either upward or outward to accommodate its growth.101 Though the community has no aversion to an urban environment, upward is less preferred because the residents’ religious practice that bars them from riding during the Sabbath and Jewish holidays extends even to elevators.102 Thus, the drive has been to annex additional territory to the village.103 In 1983, Kiryas Joel annexed an additional 371 bordering acres that had been acquired by members of the Satmar community.104 Land purchases continued, both by individuals and by realty companies controlled by Vaad Hakiryah, the village’s development arm.105 Masked purchases through front men provoked alarm among neighbors.106 In one example, the Etzel family, owners of the 87-year-old 140-acre ACE farm,107 sought to avoid selling to a Kiryas Joel-connected purchaser.108 Instead, they sold the land to Ralph Petruzzo, a local businessman.109 Petruzzo in turn quickly resold it to a Kiryas Joel developer at a profit of a million dollars.110 In early 2004, Vaad Hakiryah advocated still another annexation of land bordering Kiryas Joel,111 but obtaining required support in the Town of Monroe was unlikely. As an alternative, Vaad Hakiryah began efforts to incorporate a separate Satmar village on land in the three towns of Monroe, Woodbury, and Blooming
HERALD: REC., http://www.recordonline.com/article/20140522/news/140529909 (last updated May 22, 2014) [hereinafter McKenna, Kiryas Joel Growth Eases]. 100 See id. 101 See LAND USE PROBLEMS AND CONFLICTS 34 (Stephan J. Goetz et al. eds., 2005). 102 See Elizabeth A. Harris, For Jewish Sabbath, Elevators Do All the Work, N.Y. TIMES (Mar. 5, 2012), http://www.nytimes.com/2006/08/27/nyregion/27orange.html?_r=0. 103 See Chris McKenna, 1,500 New Homes Proposed for Kiryas Joel, TIMES HERALD: REC., http://www.recordonline.com/news/20160902/1500-new-homes-proposed-for-kiryas-joel (last updated Sept. 2, 2016) [hereinafter McKenna, 1,500 New Homes]. 104 See Albert Samaha, All the Young Jews: In the Village of Kiryas Joel, New York, the Median Age is 13, VILLAGE VOICE (Nov. 12, 2014), http://www.villagevoice.com/news/all-the- young-jews-in-the-village-of-kiryas-joel-new-york-the-median-age-is-13-6675452. 105 See Chris McKenna, Proposed Kiryas Joel Annexation Area Includes Mix of Properties, Landowners, TIMES HERALD: REC. (June 6, 2015), http://www.recordonline.com/ article/20150606/NEWS/150609576 [hereinafter McKenna, Proposed Kiryas Joel Annexation]. 106 See Chris McKenna, ACE Farm Flipped to Kiryas Joel, TIMES HERALD: REC., http://www.recordonline.com/article/20040129/News/301299997 (last updated Dec. 16, 2010) [hereinafter McKenna, ACE Farm Flipped to Kiryas Joel]. 107 See Chris McKenna, ACE Deal Creates Bad Feeling All Around, TIMES HERALD: REC., http://www.recordonline.com/article/20040201/News/301299998 (last updated Dec. 16, 2010) [hereinafter McKenna, ACE Deal Creates Bad Feeling]. 108 See id. 109 See id. 110 See McKenna, ACE Farm Flipped to Kiryas Joel, supra note 106. 111 See McKenna, Proposed Kiryas Joel Annexation, supra note 105. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
2016/2017] The Chassidic Impact on Local Government 1395
Grove.112 As noted, this was blocked by the preemptive creation of other non-Chassidic villages.113 Most recently, and in accord with general village law, Chassidic landowners petitioned for the annexation of an additional 507 contiguous acres to the village.114 To proceed, state law required the “consent[]” of the board of “each local government, the area of which is affected”—in this case, Kiryas Joel and the Town of Monroe, in which the village is located—“upon the basis of a determination that the annexation is in the over-all public interest.”115 In 2015, this consent was far more likely than in previous years.116 To understand why, some background in New York’s local government structure is required. All territory in New York State is in a county.117 Within each county in the State (outside of New York City), every New Yorker lives in either a town or a city.118 Additionally, probably because of the manner in which local government evolved historically, villagers live in, receive services from, and pay taxes to support both their village and town.119 Therefore, like village residents throughout New York, Kiryas Joel residents vote in both village and town elections.120 As noted below, Kiryas Joel voters and the town’s other Chassidic residents had
112 See Chris McKenna, Myriad of Deals Done to Carve Out New Village, TIMES HERALD: REC., http://www.recordonline.com/article/20040711/news/307119998, (last updated Dec. 16, 2010) [hereinafter McKenna, Myriad of Deals]; Chris McKenna, Kiryas Joel Sues Woodbury over High-Density Zoning, TIMES HERALD: REC. (Nov. 7, 2011), http://www.recordonline. com/apps/pbcs.dll/article?AID=/20111107/NEWS/111109820/-1/rss24 [hereinafter McKenna, Kiryas Joel Sues Woodbury]; Samaha, supra note 104. 113 See Chris McKenna, Kiryas Joel Annexation Attempt: Map Shows Hasidic Inventory, TIMES HERALD: REC., http://www.recordonline.com/article/20140207/News/402070360 (last updated Feb. 7, 2014) [hereinafter McKenna, Kiryas Joel Annexation Attempt]. 114 See id.; McKenna, Proposed Kiryas Joel Annexation, supra note 105. 115 N.Y. CONST. art. IX, § 1(d). 116 See Bill Mahoney, Filings Show Kiryas Joel Money Flowed to Cuomo after Veto, POLITICO (July 17, 2015), http://www.politico.com/states/new-york/albany/story/2015/ 07/filings-show-kiryas-joel-money-flowed-to-cuomo-after-veto-023846 (inferring that recent developments make it more likely to receive board consent now than in the past); McKenna, Proposed Kiryas Joel Annexation, supra note 105. 117 See What Do Local Governments Do?, supra note 52. 118 See id. 119 See Property Taxes, N.Y. ST. DEP’T TAX’N & FIN., https://www.tax.ny.gov/pit/property/ learn/proptax.htm (last visited Sept. 7, 2017). 120 See Chris McKenna, Inside the Kiryas Joel Voting Machine, TIMES HERALD: REC., http://www.recordonline.com/article/20141026/news/141029573 (last updated Oct. 26, 2014) [hereinafter McKenna, Kiryas Joel Voting Machine]; Chris McKenna, Kiryas Joel Petitions to Add Land, Form New Town of North Monroe, TIMES HERALD: REC., http://www.recordonline. com/news/20160816/kiryas-joel-petitions-to-add-land-form-new-town-of-north-monroe (last updated Aug. 16, 2016) [hereinafter McKenna, Kiryas Joel Petitions]. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
1396 Albany Law Review [Vol. 80.4 come to dominate Town of Monroe elections.121 The New York State Department of Environmental Conservation was named as the lead agency to study the most recently proposed annexation of Kiryas Joel.122 Its commissioned study drew extensive comment and was hotly contested.123 The county entered the fray in opposition to the village; it commissioned an independent study by two respected consultants—the Center for Governmental Research and Chazen Companies—focused on the demographic and planning assumptions underlying the proposed annexation as well as its likely impacts on county services, programs, assets, and facilities.124 As noted, state legislation was sought (unsuccessfully) to strengthen the county’s hand in reviewing the town’s decision regarding annexation.125 On September 8, 2015, the Monroe Town Board approved annexation of 164 of the 507 acres proposed for addition to Kiryas Joel by a vote of 4-1.126 Almost immediately, a coalition of eight Orange County towns and villages announced that they would contest this outcome in court, based upon its impact on “water and sewer resources in the region, and the deficiencies in the environmental review that was conducted in connection with the proposed annexations.”127 Later that week, the county legislature voted to join this coalition.128 A principle argument for this collective action was the proposed annexation’s regional impact. “‘This annexation attempt is not a local issue,’ [one local citizen argued at the Orange County legislature’s public meeting.] ‘It’s
121 See McKenna, Kiryas Joel Petitions, supra note 120. 122 See Joseph J. Martens, Town of Monroe Town Board v. Village of Kiryas Joel Board of Trustees, N.Y. ST. DEP’T ENVTL. CONSERVATION (Jan. 28, 2015), http://www.dec.ny.gov/perm its/100698.html (providing the Commissioner’s decision on lead agency disputes: annexation). 123 See Memorandum by Steven M. Neuhaus, Cty. Exec., Orange Cty., on Hearing and Supplemental Written Comments on Behalf of the County of Orange 1–2 (June 10, 2015), http://www.orangecountygov.com/filestorage/124/1362/16386/Kiryas_Joel_Hearing.pdf. 124 See GARDNER & ROUND, supra note 28, at i. 125 See Letter from Steven M. Neuhaus, Cty. Exec., Orange Cty., to Andrew Cuomo, Governor, N.Y. State (June 18, 2015) (on file with author); S. B. 5643, 238th Reg. Sess. (N.Y. 2015) (vetoed). 126 See Chris McKenna, Monroe Board Approves 164-acre Annexation by Kiryas Joel, Rejects 507-acre Proposal, TIMES HERALD: REC., http://www.recordonline.com/article/20150908/ news/150909424 (last updated Sept. 9, 2015) [hereinafter McKenna, Monroe Board Approves Annexation]. 127 See Chris McKenna, Municipalities to Challenge KJ Petitions, TIMES HERALD: REC., http://www.recordonline.com/article/20150915/NEWS/150919531 (last updated Sept. 15, 2015) [hereinafter McKenna, Municipalities]. 128 See Gittel Evangelist, Orange County Votes to Join Lawsuit Challenging Kiryas Joel Annexation, TIMES HERALD: REC., http://www.recordonline.com/article/20150917/NEWS/ 150919314 (last updated Sept. 17, 2015). THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
2016/2017] The Chassidic Impact on Local Government 1397 county-wide, it’s region-wide.’”129
3. Kaser
The Village of Kaser was incorporated in 1990 in the Town of Ramapo in Rockland County.130 It is entirely within the hamlet of Monsey.131 The motivation was again to gain land use control.132 Kaser, with a population in 2010 of 4,724 living in 0.17 square miles, is the most densely settled municipality in New York State and among the most densely settled in the United States.133 By 2016, Kaser’s population was estimated to have reached 5,354.134
4. Woodbury and Blooming Grove As noted, a village may not be created within an already existing village. To block the creation of an additional future Chassidic village in their midst, those already resident in Woodbury and Blooming Grove organized into homeowner associations and petitioned preemptively to create new villages themselves.135 The 4.98 square mile Village of South Blooming Grove was incorporated on July 14, 2006.136 Its current population is 3,234.137 Shortly
129 See McKenna, Municipalities, supra note 127. 130 See Editorial, Room for All in Ramapo?, LOHUD, http://www.lohud.com/story/opinion/ editorials/2016/03/19/editorial-room-all-ramapo/81967800/ (last updated Mar. 20, 2016); Cheryl Platzman Weinstock, If You’re Thinking of Living In/Monsey; Low Inventory, Lots of Kugel, Some Deer, N.Y. TIMES (Feb. 10, 2002), http://www.nytimes.com/2002/02/10/realestate /if-you-re-thinking-of-living-in-monsey-low-inventory-lots-of-kugel-some-deer.html. 131 See Weinstock, supra note 130. 132 See Editorial, supra note 130; Weinstock, supra note 130. 133 See American FactFinder: Population, Housing Units, Area, and Density: 2010, U.S. CENSUS BUREAU, https://factfinder.census.gov/faces/tableservices/jsf/pages/productview .xhtml?src=CF (last visited Sept. 7, 2017); Wendell Cox, America’s Densest Cities, HUFFINGTON POST, http://www.huffingtonpost.com/wendell-cox/americas-densest-cities_b_ 5888424.html (last updated Nov. 26, 2014); Kaser, New York Demographics Data, TOWNCHARTS, http://www.towncharts.com/New-York/Demographics/Kaser-village-NY-Demo graphics-data.html (last visited Sept. 7, 2017). 134 Quick Facts: Kaser Village, New York, U.S. CENSUS BUREAU, https://www.census.gov/ quickfacts/fact/table/kaservillagenewyork/PST045216 (last visited Sept. 7, 2017). 135 See Chris McKenna, KJ Residents Plan to Build Second Village, TIMES HERALD: REC., http://www.recordonline.com/article/20040711/News/307119999 (last updated Dec. 16, 2010) [hereinafter McKenna, KJ Residents]. 136 See Home Page, VILLAGE SOUTH BLOOMING GROVE, http://www.villageofsouthblooming grove.com/1.html (last visited Sept. 7, 2017); Village of South Blooming Grove Sets Hearing on Residential Building Moratorium, TIMES HERALD: REC., http://www.recordonline.com /news/20160812/village-of-south-blooming-grove-sets-hearing-on-residential-building-morator ium (last updated Aug. 12, 2016). 137 Village Board, VILLAGE SOUTH BLOOMING GROVE, http://www.villageofsouthblooming grove.com/2.html (last visited Oct. 9, 2016). THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
1398 Albany Law Review [Vol. 80.4 thereafter, on August 28, 2006, the 35.6 square mile Village of Woodbury was incorporated.138 It included all of the Town of Woodbury except that which was already in the Village of Harriman.139 In 2016, its population was estimated to be 10,986.140
5. Airmont Incorporated on the initiative of the Airmont Civic Association in 1991 in Rockland County, Airmont was sued by the federal government in that same year as having been formed to use village land use controls explicitly to exclude Orthodox Jews in violation of national housing laws.141 Ultimately, the village was required by the courts to change its zoning laws.142 A second suit arose under the Federal Religious Land Use and Institutionalized Persons Act (“RLUIPA”) when the village sought to block the construction of a Yeshiva dormitory on a nineteen-acre site within it.143 This resulted in a negotiated settlement in 2011 that allowed the construction.144
6. Other Rockland County Villages In a recent decision, federal Judge Kenneth M. Karas found no merit in the allegation that four Rockland County villages— Pomona, Wesley Hills, Chestnut Ridge, and Montebello, all in the Town of Ramapo—were established to discriminate again Chassidim.145 But it was acknowledged in the course of this
138 See Woodbury, Town & Village, ORANGE COUNTY N.Y., http://www.orangecountygov.com/ content/124/1362/1460/10182/12229/default.aspx (last visited Sept. 7, 2017); Quick Facts: Woodbury Village, New York, U.S. CENSUS BUREAU, https://www.census.gov/quickfacts/table/ LND110210/3682750 (last visited Sept. 7, 2017). 139 Woodbury, Town & Village, supra note 138. 140 See Quick Facts: Woodbury Village, New York, supra note 138. 141 See LeBlanc-Sternberg v. Fletcher, 781 F. Supp. 261, 263–64 (S.D.N.Y. 1991). 142 See LeBlanc-Sternberg v. Fletcher, 922 F. Supp. 959, 964–65 (S.D.N.Y. 1996); Peter Applebome, Where Zoning Seems a Test of Tolerance, N.Y. TIMES (June 15, 2005), http:// www.nytimes.com/2005/06/15/nyregion/where-zoning-seems-a-test-of-tolerance.html. 143 See Akiko Matsuda, After Airmont Loses RLUIPA Battle, Controversial Proposal Resurfaces, LOHUD, http://www.lohud.com/story/news/local/rockland/2014/05/17/airmont-loses -rluipa-battle-controversial-proposal-resurfaces/9237583/ (last updated May 19, 2014). 144 See Congregation Mischknois Lavier Yakov, Inc. v. Bd. of Trs. for Airmont, 301 F. App’x 14, 15 (2d Cir. 2008); see also William Demarest, Airmont to Allow Yeshiva and Dorms in Settlement of Discrimination Lawsuit, NEW CITY PATCH, http://patch.com/new-york/ newcity/airmont-to-allow-yeshiva-and-dorms-in-settlement-of-d298eff7771 (last updated May 9, 2011) (discussing the outcome of the discrimination lawsuit settlement). 145 See Bernstein v. Village of Wesley Hills, 95 F. Supp. 3d 547, 550, 576, 583–85 (S.D.N.Y. 2015). Interestingly, Wesley Hills, Pomona, and Chestnut Hills are in the East Ramapo School District, as are the Villages of Kaser and Spring Valley. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
2016/2017] The Chassidic Impact on Local Government 1399 litigation that the founders of these villages sought land use control, and that many suburban neighbors who observed land use choices made in Chassidic-governed villages did not want them duplicated in their own communities.146
III. GOVERNANCE IN CHASSIDIC VILLAGE GOVERNMENTS The general category of “village” is deceptive, as all of New York’s 551 villages are not created equal. They range: in geographic area, from 44.6 square miles (e.g., Speculator in Hamilton County)147 to 0.17 square miles (e.g., Kaser);148 in size of population, from eleven (e.g., Dering Harbor in Suffolk)149 to 53,891 (e.g., Hempstead in Nassau);150 and in size of expenditure, from $61,068 (e.g., Galway in Saratoga)151 to $118,292,038 (e.g., Freeport in Nassau).152 Some offer only a limited range of functions, while others are more extensive in their governmental scope and reach.153 Within these ranges, the three Chassidic villages are relatively small in physical size, varied but significant in population (and therefore densely settled), and engaged in consequential spending. Kiryas Joel spent $18,756,446 in 2013, New Square $2,459,266, and Kaser $3,271,299.154 In an era that increasingly values transparency in government and intergovernmental collaboration, these villages differ from their peers in their relative opacity and predisposition for autonomy, except where relationships with other
146 See id. at 552–53. 147 See Speculator, N.Y., CENSUS REP., http://censusreporter.org/profiles/16000US3670123- speculator-ny/ (last visited Sept. 7, 2017). 148 See Quick Facts: Kaser Village, New York, supra note 134. 149 See Dering Harbor, N.Y., CENSUS REP., https://censusreporter.org/profiles/16000US 3620379-dering-harbor-ny/ (last visited Sept. 7, 2017). 150 See Quick Facts: Hempstead Village, New York, U.S. CENSUS BUREAU, http://www.cen sus.gov/quickfacts/table/PST045215/3633139 (last visited Sept. 7, 2017). 151 See Trend Report for Village of Galway for 2013, OFF. N.Y. ST. COMPTROLLER, http:// wwe2.osc.state.ny.us/transparency/LocalGov/LocalGovResultsTrend.cfm (last visited Oct. 7, 2016). 152 See Trend Report for Village of Freeport for 2013, OFF. N.Y. ST. COMPTROLLER, http:// wwe2.osc.state.ny.us/transparency/LocalGov/LocalGovResultsTrend.cfm (last visited Oct. 7, 2016). 153 See What Do Local Governments Do?, supra note 52. 154 See Trend Report for Village of Kiryas Joel for 2013, OFF. N.Y. ST. COMPTROLLER, http:// wwe2.osc.state.ny.us/transparency/LocalGov/LocalGovResultsTrend.cfm (last visited Oct. 7, 2016); Trend Report for Village of New Square for 2013, OFF. N.Y. ST. COMPTROLLER, http:// wwe2.osc.state.ny.us/transparency/LocalGov/LocalGovResultsTrend.cfm (last visited Oct. 7, 2016); Trend Report for Village of Kaser for 2013, OFF. N.Y. ST. COMPTROLLER, http://wwe2.osc.state.ny.us/transparency/LocalGov/LocalGovResultsTrend.cfm (last visited Oct. 7, 2016). THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
1400 Albany Law Review [Vol. 80.4 governments is a practical necessity or is fiscally compelling.155
A. Separateness and Opacity In order to sustain themselves and assure continued growth and vitality, Chassidic communities vigorously maintain physical and psychological barriers between themselves and others.156 This is reflected in a number of visible dimensions beyond patterns of religious observance, ranging from unique styles of dress to restrictions on access by community members to the Internet.157 One critic, a former Chassidic resident of New Square, called upon personal experience to allege that efforts to enforce communal norms even resulted in “extra-legal vigilantism” that was tacitly sanctioned by community leaders.158 The Chassidic communities’ “separate[ness] by choice,” is reflected in the municipalities they have formed and run.159 Efforts are made to be self-contained and to diminish external contact.160 The issuance of marriage licenses offers one small example. In New York marriage licensing is a town, not a village, function,161 but where there is a will, there is a way. In 2011, the village administrator of Kiryas Joel, Gedalye Szegedin, was deputized by the town clerk of Monroe—a step that allowed village residents to obtain their marriage licenses at the village hall.162 Reflective of this predisposition for separateness, a study of the use of technology in government published in 2015 by the Benjamin Center at SUNY New Paltz found that ninety-seven percent of the local governments in Ulster, Dutchess, Orange, and Sullivan
155 See, e.g., Yvonne Marcotte, United Monroe Hopes for More Transparency from Town Board, EPOCH TIMES, http://www.theepochtimes.com/n3/1911149-united-monroe-hopes-for- more-transparency-from-town-board/ (last updated Dec. 22, 2015). 156 See A Life Apart: Hasidism in America—Boundaries and Separation, PBS, http://www .pbs.org/alifeapart/intro_3.html (last visited Sept. 7, 2017). 157 See, e.g., Rebecca Finkel, The Messiah Will Be Tweeted, SLATE (June 19, 2013), http:// www.slate.com/articles/life/faithbased/2013/06/the_internet_isn_t_the_problem_for_the_hasid ic_community_it_s_its_best_chance.html; Boruch Shubert, As Heat Hits, Chassidim Hangs Tough, JEWISH VOICE (July 11, 2012), http://jewishvoiceny.com/index.php?option=com_ content&view=article&id=1562:as-heat-hits-chassidim-hang-tough&catid=112:new-york&Ite mid=295&lang=en. 158 See Shulem Deen, What is Really Happening in New Square?, FORWARD (May 30, 2011), http://forward.com/opinion/138211/what-is-really-happening-in-new-square/#ixzz3pgeBIWgQ. 159 See GARDNER & ROUND, supra note 28, at ii. 160 See id. 161 See Monroe, N.Y.—Town Appoints Gedalye Szegedin to Handle Kiryas Joel’s Marriage Licenses, VOS IZ NEIAS? (July 22, 2011), http://www.vosizneias.com/87915/2011/07/22/monroe- ny-town-appoints-gedalye-szegedin-to-handle-kiryas-joels-marriage-licenses/. 162 See id. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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Counties in New York maintained websites.163 The Village of Kiryas Joel was one of the few that did not. Neither did both Kaser and New Square in Rockland County. The Village of New Square, however, does maintain an official Twitter account, and also contracts to offer citizens the ability to pay local taxes online.164 There is, though, a website entitled: “Kiryas Joel Voice,” which presents itself as “a clearinghouse for information and communication concerning the Kiryas Joel community.”165 This site is not a tool for local governance. It does not identify community elected officials or how to contact them. It provides no information about public meetings, or committees working in the village. It gives no election results. It does not provide a copy of the village budget. In fact, it manifests few, if any, of the forty elements considered by the Benjamin Center study of effective use of electronic media in governance.166 Interestingly, though, and unlike the case for almost all other local governments, Kiryas Joel Voice does provide some information on the status and/or outcomes of lawsuits arising from the village’s disputes in the courts with other local governments.167
B. Inter-Local Relationships The Chassidic village’s interaction with other governments occurs when necessary to meet the needs of the Chassidic community. For example, there is compliance with basic data reporting requirements to state oversight agencies, including the Office of the State Comptroller and the State Education Department.168 Yet there remain unexplained discrepancies in some areas of local government reporting (e.g., numbers of Kiryas Joel fire calls
163 KT TOBIN ET AL., AN INVENTORY OF MID-HUDSON LOCAL GOVERNMENTS’ WEBSITE AND SOCIAL MEDIA USAGE 1, 2, 5, 8, 9 (2015), http://www.newpaltz.edu/media/the-benjamin- center/an_inventory_of_mid_hudson_local_governments_website_and_social_media_usage_fi nal_long.pdf. 164 @NewSquareNY, TWITTER, https://twitter.com/newsquareny (last visited Sept. 7, 2017); Village of New Square, TAX BILLS ONLINE, http://www.egov.basny.com/VillageofNewSquare/ (last visited Sept. 7, 2017). 165 See Welcome to KJvoice.com, KIRYAS JOEL VOICE, http://www.kjvoice.com/ (last visited Sept. 7, 2017). 166 See generally TOBIN ET AL., supra note 163, at 7 (listing each of the forty elements). 167 See Court Rulings: Kiryas Joel in Judiciary, KIRYAS JOEL VOICE, http://www.kjvoice .com/court_rulings.asp (last visited Sept. 13, 2017). 168 See, e.g., GARDNER & ROUND, supra note 28, at 58, 65 (containing data that Kiryas Joel has reported to the state Comptroller and State Education Department); Letter from MaryEllen Elia, Comm’r, N.Y. State Educ. Dep’t, to Joel Petlin, Superintendent, Kiryas Joel Village Union Free Sch. Dist. (Feb. 24, 2016). THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
1402 Albany Law Review [Vol. 80.4 recorded compared to those actually reported to the state).169 In Rockland County, water is supplied by a private contractor.170 For Kiryas Joel, meeting growing village water and sewer needs, as further discussed below, requires interaction with the county government and neighboring municipalities. This has been confrontational. Kaser relies on the Town of Ramapo for many core services.171 Kiryas Joel maintains a force of part-time constables and some patrol equipment, but relies largely on the state for police services.172 Because its bearded volunteers cannot wear self- contained breathing apparatuses as required by the Occupational Safety and Health Administration (“OSHA”), Kiryas Joel must call on neighboring departments for mutual aid for all serious fires.173 Protocols notwithstanding, practically speaking, the village fire department cannot function as the first responder in such situations,174 nor can it lend mutual aid to neighboring departments for such fires outside village borders.175 In general, interaction of the Chassidic villages with other local governments is borne of necessity and is uni-directional. Unlike other villages, Chassidic villages assist local residents with claims made for financial aid and social services provided through counties for community members—health care, housing, and public assistance.176 But compliance with general rules and regulations with county departments may be neglected if not seen to be, actually or potentially, as in accord with the Chassidic community’s preference for separateness, or in pursuance of its fiscal interest.177 This is evident, for example, in the reported “lack of engagement” between the Village of Kiryas Joel and the Orange County Planning
169 See GARDNER & ROUND, supra note 28, at 57. 170 See Water Service Connection/Repair, INFO. ROCKLAND, http://www.information rockland.com/MatchList.aspx?c;;0;;N;0;0;DISASTER/EMERGENCY/ENVIRONMENT/PUBLI C%20HEALTH;Public%20Safety;1502;Water%20Service%20Connection/Repair (last visited Oct. 10, 2016). 171 See Berger, supra note 41. 172 See GARDNER & ROUND, supra note 28, at 55. 173 See id. at 57. 174 See id. 175 See id. (inferring that because a fire department has resources available to only provide assistance in its jurisdiction, it cannot lend aid for fires outside its borders). 176 See Sam Roberts, A Village with the Numbers, Not the Image, of the Poorest Place, N.Y. TIMES (Apr. 20, 2011), http://www.nytimes.com/2011/04/21/nyregion/kiryas-joel-a-village- with-the-numbers-not-the-image-of-the-poorest-place.html; Joe Sexton, Religion and Welfare Shape Economics for the Hasidim, N.Y. TIMES (Apr. 21, 1997), http://www.nytimes.com /1997/04/21/nyregion/religion-and-welfare-shape-economics-for-the-hasidim.html. 177 See GARDNER & ROUND, supra note 28, at ii; Berger, supra note 41. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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Department and the non-compliance of the village with civil service hiring requirements in the area of public safety.178
C. Claims upon Counties The federal poverty level is defined relative to family size.179 Chassidic families average six people, though those with eight or ten children are not uncommon.180 For the period of 2010-2014, the U.S. Census Bureau found that 57.3% of persons in the Village of Kiryas Joel, 67.5% in New Square, and 74.7% in Kaser were living in poverty.181 This makes a disproportionate portion of the Hudson Valley’s Chassidic population eligible for county-delivered, poverty- related social services such as housing subsidies, food stamps, Medicaid, home energy assistance, early intervention health services, and pre-Kindergarten special education services.182 Chassidic village governments facilitate access to these services.183 In fact, there are many things that counties do or support—e.g., criminal justice related activities, nursing home maintenance, mental health services, and community college programs—that are not impacted by the presence of Chassidic residents.184 This notwithstanding, the perception persists that members of the region’s Chassidic communities are “not really needy” and are “playing the system.”185 There are occasional examples that reinforce this perspective. For one, men in Chassidic communities give priority to Torah study over remunerative work.186 In 2014, the Rockland County Department of Social Services declared 118 families including 250 children ineligible for childcare services.187 The agency argued that
178 See GARDNER & ROUND, supra note 28, at ii, 55. 179 See Income & Poverty, U.S. CENSUS BUREAU, http://www.census.gov/topics/income-pov erty/about.html (last updated Sept. 20, 2016). 180 See Roberts, supra note 176; Sexton, supra note 176. 181 See Quick Facts: Kaser Village, New York, supra note 134; Quick Facts: Kiryas Joel Village, New York, U.S. CENSUS BUREAU, https://www.census.gov/quickfacts/fact/table /kiryasjoelvillagenewyork/IPE120216 (last visited Sept. 13, 2017); Quick Facts: New Square Village, New York, U.S. CENSUS BUREAU, https://www.census.gov/quickfacts/fact/table/ newsquarevillagenewyork/IPE120216 (last visited Sept. 13, 2017). 182 See GARDNER & ROUND, supra note 28, at 21, 24; Roberts, supra note 176. 183 See Sexton, supra note 176. 184 See GARDNER & ROUND, supra note 28, at v, 21, 26–27. 185 See Raphael Magarik, Welfare Reform? Not for the Orthodox, DAILY BEAST (June 13, 2012), http://www.thedailybeast.com/articles/2012/06/13/welfare-reform-not-for-the-orthodox .html; Roberts, supra note 176. 186 See Roberts, supra note 176. 187 See Steve Lieberman & Laura Incalcaterra, Judge Says Restore Child Care Aid to Religious Students, LOHUD, http://www.lohud.com/story/news/local/rockland/2014/04/02/child- THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
1404 Albany Law Review [Vol. 80.4 its investigation revealed that adult recipients removed from those served were not truly employees of their Kollels (religious study centers) who were engaged in work.188 Rather, they were in fact adult students being paid stipends that created the legal fiction that they were employees to meet the requirement for eligibility for this subsidy.189 The department’s commissioner, Susan Sherwood, said that some of these families had been receiving childcare assistance for decades.190 Resources were limited, and the county’s action opened room for inclusion in the program of other families on a long waiting list.191 Three Chassidic families from the Village of Kaser, members of Kollel V’Emunah Viznitz, challenged this ruling.192 The administrative law judge (“ALJ”) found, and was affirmed on appeal, that there was substantial evidence that the persons from families no longer allowed services indeed met the legal definition of work that supported their eligibility.193 ALJ Mark Lahey wrote: “The undisputed record showed that the wages provided by the Kollel were conditioned on the services the appellants provided to the Kollel and to the community at large.”194 Commissioner Sherwood’s reaction to this paralleled that of much of the county’s non-Chassidic community: “If this is not an abuse, it’s clearly a misuse.”195
D. Disputes Over Water and Sewer Densely settled localities, cities, and villages often have water systems located outside their municipal boundaries.196 State government regulates these to assure the availability of water supply and quality.197 In recent years in New York State, because care-subsidies-rockland-county-social-services-kollels-religious-jewish-schools/7235613/ (last updated Apr. 2, 2014). 188 See id. 189 See id. 190 See id. 191 See id. 192 See id. 193 See id. 194 See Letter from Mark Lahey, Principal Admin. Law Judge, N.Y. State Off. Temp. & Disability Assistance, to Susan Sherwood, Comm’r, Rockland Cty. Dep’t Soc. Servs. (May 19, 2014), https://assets.documentcloud.org/documents/1175541/state-letter-to-sue-sherwood-doc 053014-lieberman.pdf. 195 See Lieberman & Incalcaterra, supra note 187. 196 See GARDNER & ROUND, supra note 28, at 32. 197 See Regulatory Information by Topic: Water, U.S. ENVTL. PROTECTION AGENCY, http:// www.epa.gov/regulatory-information-topic/regulatory-information-topic-water (last visited Sept. 13, 2017). THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
2016/2017] The Chassidic Impact on Local Government 1405 of the decline of cities and villages as centers of industry and population, water system capacity often exceeds current needs.198 But where there is population growth or economic development, inter-communal competition is likely for available sources or system capacity.199 If additional capacity must be built, ways to collaborate with other interested or affected municipalities may be found to share the costs and benefits.200 Or resolution must be found elsewhere, though this usually means litigation. Wastewater generated in Kiryas Joel is treated first by its wastewater treatment facility, built in the year 2000, and then by a facility in Harriman operated by the Orange County Sewer District (“OCSD”) no. 1.201 This district, created in 1970, encompasses all the property in the villages of Kiryas Joel, Harriman, and Monroe, and a portion of the Town of Monroe.202 When capacity is reached at the village plant, the flow of sewage is automatically diverted to Harriman.203 The village plant therefore is physically limited from operating beyond its rated capacity.204 This OCSD facility in Harriman is regional, as it also serves a number of other Orange County communities.205 Currently, flows from Kiryas Joel take up 19% of the Harriman plant’s capacity.206 A recent study estimated that at the plant’s current size, it would reach its limit in 2027, with Kiryas Joel employing 35% of that capacity.207 With capacity augmented, the plant’s new limit would be reached in 2038, with more than half the flow (52%) from Kiryas Joel.208 Kiryas Joel currently relies on wells within and outside its borders for fresh water.209 Its water use from these sources exceeds state permitted limits.210 The additional peak demand is met from
198 See GARDNER & ROUND, supra note 28, at vi, 28. 199 See THE FOOD & AGRIC. ORG. OF THE UNITED NATIONS, THE STATE OF THE WORLD’S LAND AND WATER RESOURCES FOR FOOD AND AGRICULTURE: MANAGING SYSTEMS AT RISK 5 (2011); GARDNER & ROUND, supra note 28, at 29. 200 See GARDNER & ROUND, supra note 28, at iii, vi, vii. 201 See id. at 33, 35. 202 See DEL. ENG’G, D.P.C., FACILITY PLAN TO INCREASE THE WASTEWATER CAPACITY OF ORANGE COUNTY SEWER DISTRICT NO. 1: DRAFT I-1, I-2 (2016), http://www.co.orange.ny.us /filestorage/1140/24073/DRAFT_OCSD_FACILITY_PLAN_8-2016_web.pdf. 203 See GARDNER & ROUND, supra note 28, at 39. 204 See id. 205 See id. at 40. 206 Id. at 41. 207 See id. 41–42. 208 See id. 209 See id. at 27. 210 See id. at 28–29. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
1406 Albany Law Review [Vol. 80.4 water storage facilities built outside of the village.211 Even with the development and permission of additional planned wellfields, the growth of the village will lead to peak demand that exceeds supply by 2034.212 Moreover, there has been concern about the impacts on the water supply for the Town of Cornwall and the environmental impacts of the depletion of the Woodbury Creek resulting from the proposed development of one of these additional wellfields.213 Ultimately, the long-term solution for Kiryas Joel’s water needs is access to New York City’s Catskill aquifer.214 Because the aquifer passes through Orange County, the county’s communities are entitled to access to this water by state law.215 Kiryas Joel’s interest in tapping New York City water arose in 2000, after a failed and legally questionable attempt to address its chronic water shortages by drilling additional wells within its borders.216 A study by the Orange County Water Authority indicated that the village had placed “as many straws in the cup” as it could, and would have to seek water outside its borders.217 Though a massive expense, initially estimated at up to $28 million (now $46 million), Kiryas Joel opted to seek to connect to the Catskill Aqueduct at Vails Gate in New Windsor.218 When the village issued its first environmental impact statement in 2004 for a plan to access New York City water, Orange County sued.219 Its principal argument was that the village’s environ- mental impact analyses insufficiently considered likely effects on the demand placed upon the Harriman wastewater plant.220 After the village issued a court-directed revised environmental impact statement on the project to access New York City water in 2009, the
211 See id. at 29. 212 See id. 213 See id. at 31. 214 See, e.g., Peter Applebome, Our Towns; Sometimes, a Pipeline is a Lightning Rod, N.Y. TIMES (June 20, 2004), http://www.nytimes.com/2004/06/20/nyregion/our-towns-sometimes-a- pipeline-is-a-lightning-rod.html (describing Kiryas Joel’s decision to tap into New York City’s water as an attempt to meet their water needs without drying out other local aquifers, and that seventy-five other applicants were approved to tap the New York City water supply as well). 215 N.Y.C. ADMIN. CODE § 24-360(a) (McKinney 2017). 216 See Christopher Mele, Kiryas Joel’s Water Needs to Double, TIMES HERALD: REC., http:// www.recordonline.com/article/20000617/NEWS/306179983 (last updated Dec. 14, 2010). 217 See id. 218 See GARDNER & ROUND, supra note 28, at 32–33; Christopher Mele, Kiryas Joel Seeks to Tap into NYC Water Supply, TIMES HERALD: REC., http://recordonline.com/article/ 20010301/NEWS/303019998 (last updated Dec. 15, 2010). 219 See In re County of Orange v. Village of Kiryas Joel, 815 N.Y.S.2d 494, 494 (Sup. Ct. 2005), aff’d in part and modified in part, 844 N.Y.S.2d 57 (App. Div. 2007). 220 See id. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
2016/2017] The Chassidic Impact on Local Government 1407 county again sued.221 After five years of litigation, Kiryas Joel began to construct the pipeline.222 As of late 2015, New York City had not formally approved this connection, which requires one hundred percent backup supply drawn from its system.223 During the course of the litigation over the aqueduct connection, Kiryas Joel’s water and sewer infrastructure needs spawned other related conflict as well. In 2006, Orange County blocked Kiryas Joel’s attempt to build two water towers on county parklands to meet its peak water demand, only to see the village buy and use land elsewhere for this purpose.224 Village-initiated lawsuits focused on sewer district fees and charges for businesses and institutions within it, including a poultry plant.225 This pattern of litigation suggests that a principle goal of the county was to constrain Kiryas Joel’s growth by denying it access to needed infrastructure. As Spencer McLaughlin, the leading opponent of the water deal in the Orange County legislature unabashedly wrote in the Times Herald Record: “Kiryas Joel’s oxygen is water, and there’s just no more left for the village to suck out of the ground. . . . And if the aqueduct spur gets built—a pipeline delivering an endless supply of water to Kiryas Joel—the conflagration of growth will begin anew . . . .”226 Further evidence includes: the county, after expanding the Harriman wastewater plant, simultaneously continued to litigate
221 See id.; Chris McKenna, Orange County Legislature Votes for 2nd Suit vs. Kiryas Joel Pipeline, TIMES HERALD: REC., http://www.recordonline.com/article/20090702/NEWS/30702 9937 (last updated July 21, 2009) [hereinafter McKenna, Orange County Legislature]. 222 See Village of Kiryas Joel, 815 N.Y.S.2d at 494; GARDNER & ROUND, supra note 28, at 31–32. 223 See GARDNER & ROUND, supra note 28, at 32–33. 224 See Chris McKenna, Kiryas Joel Buys Property for Water Towers, TIMES HERALD: REC. (Aug. 30, 2006), http://www.recordonline.com/article/20060830/NEWS/608300332 [hereinafter McKenna, Kiryas Joel Buys Property]; Brendan Scott, Legislature Rejects KJ Water Tank Plan, TIMES HERALD: REC. (July 7, 2006), http://www.recordonline.com/article/ 20060707/NEWS/607070307; Brendan Scott, Officials Battle KJ Water Tank Request, TIMES HERALD: REC., http://www.recordonline.com/article/20060621/NEWS/306219990 (last updated Dec. 17, 2010); John Sullivan, KJ Starts Work on Disputed Water Tank, TIMES HERALD: REC. (Sept. 27, 2007), http://www.recordonline.com/article/20070927/NEWS/709270317. 225 See Chris McKenna, Kiryas Joel Suing Orange County over Bill for Waste from Poultry Plant, TIMES HERALD: REC. (Nov. 28, 2008), http://www.recordonline.com/article/ 20081128/NEWS/811280350 [hereinafter McKenna, Kiryas Joel Suing Orange County]; Chris McKenna, KJ Fights County Sewer Fees, TIMES HERALD: REC. (May 5, 2008), http:// www.recordonline.com/article/20080505/NEWS/805050317 [hereinafter McKenna, KJ Fights County Fees]. 226 See Spencer McLaughlin, Kiryas Joel Tramples on the First Amendment, TIMES HERALD: REC., http://www.recordonline.com/article/20040523/OPINION/305239938 (last updated Dec. 16, 2010). THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
1408 Albany Law Review [Vol. 80.4 based upon the negative effects of growing demand for sewer capacity from Kiryas Joel while seeking to sell significant additional capacity to Woodbury, Blooming Grove, and Monroe, all outside the sewer district.227 Kiryas Joel successfully sued the county to block these sales.228 Finally, in 2010, Orange County dropped its lawsuit blocking the village’s aqueduct connection project.229 In its settlement with Kiryas Joel, the county declared that “it could meet rising sewer demand[s] for several years and will simply expand service once the system reaches 85 percent of its capacity.”230 Under the pressures of growth seemingly without limit—growth of a minority that sought to live separately and in a starkly different way than the majority—ordinary politics could not resolve inter-jurisdictional conflict. Those resistant to Kiryas Joel’s physical expansion and its access to critical infrastructure— otherwise likely advocates for local “home rule”—argued for the centrality of regional, not local, needs in decision-making.231 Yet there was no decisive regional governmental venue with authority to make these decisions.232 Certainly, it was not the county.233 Orange County Executive Ed Diana, then head of what most closely approximated a regional government, remarked that he sued to block the Kiryas Joel New York City connector in 2004 because “a project of this magnitude must be able to serve the water needs of the entire region, not one municipality alone.”234 Meanwhile, for Gedalye Szegedin, Kiryas Joel Village Administrator, the courts
227 See Chris McKenna, Kiryas Joel Sues County Over Sewage, TIMES HERALD: REC. (Mar. 6, 2007), http://www.recordonline.com/article/20070306/NEWS/703060313 [hereinafter McKenna, Kiryas Joel Sues County]. 228 See id.; Orange County, N.Y.—Sewer Expansion FEIS Wins Approval, VOS IZ NEIAS? (Feb. 7, 2010), http://www.vosizneias.com/48759/2010/02/07/orange-county-ny-sewer-expans ion-feis-wins-approval/. 229 See Chris McKenna, Orange County Drops Lawsuit against Kiryas Joel’s Proposed Water Pipeline, TIMES HERALD: REC., http://www.recordonline.com/article/20100330/NEWS/ 100339974 (last updated Mar. 30, 2010) [hereinafter McKenna, Orange County Drops Lawsuit]. 230 Id. 231 See McKenna, Special Report, supra note 10; Department of Planning: Kiryas Joel, Village: Zoning Maps, ORANGE COUNTY, http://www.orangecountygov.com/content/124/ 1362/1460/10182/10928/10930.aspx (last visited Sept. 14, 2017); Kathy Welsh, Legislation Would Give Orange Co. Role in Large Annexations, HUDSON VALLEY NEWS NETWORK (May 13, 2015), http://hudsonvalleynewsnetwork.com/2015/05/13/legislation-would-give-orange-co- role-in-large-annexations/. 232 See Welsh, supra note 231. 233 See id. 234 Consultant Endorses KJ Pipeline EIS, KJ in the Media, KIRYAS JOEL VOICE, http://www.kjvoice.com/MediaDet.asp?ArtID=12 (last visited Sept. 14, 2017). THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
2016/2017] The Chassidic Impact on Local Government 1409 were the recourse of a beleaguered minority, a place where “what matters is legal arguments, the law. Justice is going to be done.”235
E. Financing Patterns The Hasidic villages rely for local-source revenues far less on the property tax and far more on fees for services than is the norm for villages generally in New York and for other villages of similar size in the Hudson Valley.236 Perhaps because they are very densely settled, these three villages provide a range of services uncommon for New York villages.237 Fees are charged in Kiryas Joel for sanitation, utilities, public transportation, and community service (a charge on housing developers).238 New Square’s budget reflects significant income from health and sanitation fees and some modest community service revenue.239 The degree of sharing of sales tax revenue with villages and towns is a county decision; therefore, Kiryas Joel gains significant resources from Orange County’s relatively generous population-based sharing formula.240 All localities in New York State seek to bring in “outside” state and federal money for local benefit; the Chassidic villages are no exception.241 New Square and Kiryas Joel are known for success in accessing state and federal aid for economic development and community infrastructure projects.242 The 2013 data actually
235 See Brendan Scott, Orange to Sue KJ Over Pipeline, TIMES HERALD: REC., http:// www.recordonline.com/article/20041105/NEWS/311059994 (last updated Dec. 17, 2010). 236 See infra Table I. 237 See Myers & Stolzenberg, supra note 87; Sexton, supra note 176; About KJ: The Development of Municipal Services, KIRYAS JOEL VOICE, http://www.kjvoice.com/aboutkj Det.asp?ARTID=8 (last visited Sept. 14, 2017); New Square, New York Demographics Data, TOWNCHARTS, http://www.towncharts.com/New-York/Demographics/New-Square-village-NY- Demographics-data.html (last visited Sept. 14, 2017). 238 See VILLAGE OF KIRYAS JOEL, N.Y., CODE § 129-1 (2017); About KJ: The Development of Municipal Services, supra note 237; Tax Collector, TOWN MONROE, http://www.monroeny. org/index.php/departments2/tax-collection/14-tax-collector (last visited Sept. 14, 2017); see also infra Table I (showing sources of local revenue). 239 See infra Table I. 240 See DIV. OF LOCAL GOV’T & SCH. ACCOUNTABILITY, OFF. OF THE N.Y. STATE COMPTROLLER, LOCAL GOVERNMENT SALES TAXES IN NEW YORK STATE: 2015 UPDATE 11, 17 (2015), https://www.osc.state.ny.us/localgov/pubs/research/salestax2015.pdf; Department of Planning: Kiryas Joel, Village, ORANGE COUNTY, http://www.orangecountygov.com/ content/124/1362/1460/10182/10928/default.aspx (last visited Sept. 14, 2017). 241 See DIV. OF LOCAL GOV’T & SCH. ACCOUNTABILITY, OFFICE OF THE N.Y. STATE COMPTROLLER, FINANCIAL CHALLENGES FACING LOCAL GOVERNMENTS: FEDERAL AND STATE AID SHRINK AS A SHARE OF REVENUES 1, 4 (2013), https://www.osc.state.ny.us/localgov/ pubs/research/snapshot/FederalStateAid.pdf; see also infra Table II (outlining the portion of state and federal aid in Chassidic communities). 242 See About KJ: Commercial and Economic Development, KIRYAS JOEL VOICE, http://www.kjvoice.com/aboutkjDet.asp?ARTID=12 (last visited Sept. 14, 2017); About KJ: THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
1410 Albany Law Review [Vol. 80.4 understates the villages’ reliance on state and federal funds. Data for the five years ending in 2014 shows that, on average, New Square received seven percent of its revenues from the state government and that fourteen percent of both its and Kiryas Joel’s budget was funded from federal sources.243 In addition, Kiryas Joel makes significant village-funded efforts to connect residents with social services provided with federal, state, and county resources by other governments and not-for-profit agencies.244 As for Kaser, it functions far less like a general purpose government than as a conduit for federal housing funds for its residents.
The Infrastructure of Kiryas Joel, KIRYAS JOEL VOICE, http://www.kjvoice.com/aboutkj Det.asp?ARTID=7 (last visited Sept. 14, 2017); see also infra Table II (outlining the portion of state and federal aid of the total revenue). 243 See infra Table II. 244 See About KJ: An Impressive Network of Social Services, KIRYAS JOEL VOICE, http://www.kjvoice.com/aboutkjDet.asp?ARTID=9 (last visited Sept. 14, 2017). THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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Table I.245 Selected Elements of Local Source Revenues Hudson Valley Chassidic Villages Compared, 2013.
Municipality County Pop. Property Sales Charge Per Tax Tax for Square Service Mile (2010)
Kiryas Joel Orange 18341 14.4% 23.4% 27.2% Port Westchester 12594 63.6% 12.7% 11.1% Chester Harrison Westchester 1635 64.6% 4.7% 2.7%
Ossining Westchester 7831 46.6% 8.9% 28.0%
Elmsford Westchester 4664 64.3% 7.2% 16.6%
Ardsley Westchester 3425 76.8% 6.8% 3.8%
Nyack Rockland 8456 38.7% 3.4% 55.6% Montebello Rockland 1029 60.7% 9.0% 15.7% New Rockland 17360 17.8% 7.5% 72.8% Square Kaser Rockland 23620 2.8% 11.6% 54.9% NYS Mean 1948 51.4% 6.6% 29.9%
245 Calculated by the author from data made available by the New York State Comptroller. See Financial Data for Local Governments, OFF. N.Y. ST. COMPTROLLER, http://www .osc.state.ny.us/localgov/datanstat/findata/index_choice.htm (last visited Nov. 1, 2017). THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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Table II.246 Reliance on Federal and State Aid as Portion of Total Revenues—Chassidic Villages Compared, 2013.
Municipality County State Federal Aid Aid Name Name Kiryas Joel Orange 1.8% 5.9% Port Chester Westchester 3.9% 2.1%
Harrison Westchester 4.9% 0.4%
Ossining Westchester 2.3% 6.9%
Elmsford Westchester 2.4% 1.0%
Ardsley Westchester 3.1% 1.9%
Nyack Rockland 8.0% 1.3% Montebello Rockland 6.2% 19.6% New Square Rockland 5.8% 1.9%
Kaser Rockland 6.5% 68.8% NYS Mean 4.2% 4.5%
F. An Unintended Consequence—Regional Governing by Litigation “The Lawsuits Begin.”247 This was the October 8, 2015, headline in the Photo News, noting that a group of local governments, joined by other organizations, had almost immediately agreed to collectively challenge the Town of Monroe’s partial approval of the proposal to annex additional land to the Village of Kiryas Joel.248 Orange County soon signed on by a near-unanimous vote of its
246 Calculated by the author from data made available by the New York State Comptroller. See id. 247 Bob Quinn, The Lawsuits Begin, PHOTO NEWS (Oct. 8, 2015), http://www.thephoto- news.com/apps/pbcs.dll/article?AID=/20151008/NEWS01/151009957/0/sports/The-lawsuits-be gin. 248 See id. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
2016/2017] The Chassidic Impact on Local Government 1413 legislature.249 The implication, based upon decades of experience: lawsuits among and between governments in the region have become the routine way of resolving disputes and reaching accepted outcomes.250 In fact, pursuit of policy goals through litigation is a routine strategy for Chassidic communities in the Hudson Valley.251 One small indication: the Kiryas Joel Voice keeps a scorecard of lawsuit outcomes on its website.252 Thus, a less generally noticed result of New York State’s complex intergovernmental web, with its various jurisdictions differently empowered, in the context of rapid population changes, is that crucial aspects of contemporary sub-state governance is now in judges’ hands. Sometimes they are state judges who are elected from multi-county state judicial districts;253 both Rockland and Orange Counties are in New York’s Ninth Judicial District.254 Sometimes they are appointed federal judges, sitting in multi- county districts.255 Therefore, as they sue and counter-sue, executives, mayors, supervisors, and board members concede power to the courts. The challenge to home rule comes not from the Governor and the state legislature in Albany, but rather, it is from regional governments by judges. This is certainly not local democracy, and certainly not a function for which the court system is designed.
249 See Evangelist, supra note 128. 250 See, e.g., Elizabeth Kolbert, For Hasidic Village, Uneasy Times, N.Y. TIMES (Oct. 20, 1986), http://www.nytimes.com/1986/10/20/nyregion/for-hasidic-village-uneasy-times.html?pa gewanted=all (discussing lawsuits by Kiryas Joel against the town in the 1980s); see Court Rulings, KIRYAS JOEL VOICE, http://www.kjvoice.com/court_rulings.asp (last visited Sept. 24, 2017) (providing a list of court rulings from 2005 to 2011). 251 See Kolbert, supra note 250; see also Court Rulings, supra note 250 (providing a list of rulings from 2005 to 2011). 252 See Court Rulings, supra note 250. 253 See 9th Judicial District: Courts by County & City: Dutchess, Orange, Putnam, Rockland & Westchester Counties, NYCOURTS.GOV, https://www.nycourts.gov/courts/9jd/landing- courts.shtml (last updated Mar. 12, 2013) [hereinafter 9th Judicial District]; see, e.g., Court Administration: Administrative Directory—Administrative Judges—Outside NYC: Justice Alan Scheinkman, NYCOURTS.GOV, http://www.nycourts.gov/admin/directory/scheinkman_ alan.shtml (last updated Nov. 18, 2013). 254 9th Judicial District, supra note 253. 255 See Welcome to the Southern District of New York, U.S. DISTRICT CT.: SOUTHERN DISTRICT N.Y., http://www.nysd.uscourts.gov (last visited Sept. 14, 2017); see, e.g., U.S. District Judges, U.S. DISTRICT CT.: SOUTHERN DISTRICT N.Y., http://www.nysd.uscourts.gov/judges/District (last visited Sept. 14, 2017). THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
1414 Albany Law Review [Vol. 80.4
IV. THE TROUBLED BIRTH AND EVOLUTION OF THE KIRYAS JOEL SCHOOL DISTRICT256 The Kiryas Joel School District was created in New York from scratch by special legislative act.257 Meeting the educational requirements of the Chassidic community’s special needs children is a task beyond the capacity of the community’s parochial schools, that is, the Yeshivas that all its children attend.258 For a period lasting until 1985, the Monroe-Woodbury Central School District provided these services in a designated location at the Kiryas Joel girl’s school.259 But in that year, the Supreme Court of the United States in Aguilar v. Felton260 and School District of Grand Rapids v. Ball261 barred public schools from delivering services in religious schools.262 Consequently, the Monroe-Woodbury School District discontinued this service on site in the village.263 For cultural reasons, and because of fear of scapegoating, Kiryas Joel parents refused to send their special needs children to public schools.264 They did, however, need access to public funds for the provision of these costly services.265 At first they sought service delivery at a “neutral site.”266 Then in 1989, Kiryas Joel residents decided to pursue the creation of a school district coterminous with the village to meet these special education needs.267 The Monroe- Woodbury School District was supportive. Assistant school superintendent Terrence Olivo said: “It’s a practical solution to a unique set of circumstances . . . . Everyone will come out ahead.”268
256 See GRUMET & CAHER, supra note 21, at 92 (providing a detailed case study on the attempts to establish this school district from the perspective of one of the litigants resisting this effort). 257 See Bd. of Educ. v. Grumet, 512 U.S. 687, 690, 693 (1994). In 2014, New York had 695 school districts. See UNIV. OF THE STATE OF N.Y., STATE EDUC. DEP’T, NEW YORK: RACE TO THE TOP STATE SCOPE OF WORK 4 (2014), http://usny.nysed.gov/rttt/docs/statesow.pdf. Many reformers argue that this is still too many, though research shows that school district consolidation remains a viable strategy in New York for achieving efficiency and effectiveness in education in very few cases. See Michael A. Rebell, Safeguarding the Right to a Sound Basic Education in Times of Fiscal Constraint, 75 ALB. L. REV. 1855, 1937 (2011/2012). 258 See Grumet, 512 U.S. at 692, 693. 259 See id. at 691, 692. 260 Aguilar v. Felton, 473 U.S. 402 (1985). 261 Sch. Dist. v. Ball, 473 U.S. 373 (1985). 262 Ball, 473 U.S. at 397, 398; Felton, 473 U.S. at 414. 263 See Grumet, 512 U.S. at 692. 264 See id. (citing Bd. of Educ. v. Wieder, 527 N.E.2d 767, 770 (N.Y. 1988)). 265 See Grumet, 512 U.S. at 692–93. 266 See Wieder, 527 N.E.2d at 770. 267 See Grumet, 512 U.S. at 693. 268 Elizabeth Kolbert, Village Wants Hasidic Public School District, N.Y. TIMES (July 21, 1989), http://www.nytimes.com/1989/07/21/nyregion/village-wants-hasidic-public-school-distri THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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In 1989, over the objections of the New York State Department of Education, the Kiryas Joel Union Free School District was created by special act of the New York State legislature.269 New York State School Boards Association Executive Director Louis Grumet and President Al Hawk immediately challenged the act’s constitutionality.270 In a 6-3 decision with Justice David Souter writing for the majority, the U.S. Supreme Court ruled in 1994 that New York’s creation of the Kiryas Joel School District was an establishment of religion in violation of the First Amendment.271 The delegation of discretionary governmental powers exclusively to a religious body, the majority believed, favored one religion over other religions and non-religions.272 Though members of any religion were free to acquire governmental power through elections, the court said, state government could not expressly delegate powers to an individual, institution, or community on the ground of religious identity.273 The statute in question did not define the boundaries of the school district by the religion of residents; it was to be coterminous with those of the existing Village of Kiryas Joel.274 However, that village’s borders were initially drawn to include members of the Satmar Chassidic community only.275 Effectively, therefore, although the civil powers of a public school district were vested in an elected board of education, every voter
ct.html?pagewanted=all. Significantly, the district had been in litigation with KJ since 1986 and had little taste for more. See Bd. of Educ. v. Wieder, 522 N.Y.S.2d 878, 879, 883 (App. Div. 1987). Women bus drivers assigned by the school district to KJ routes were replaced by men because KJ families objected to boys being on buses with women. See Bollenbach v. Bd. of Educ., 659 F. Supp. 1450, 1452 (S.D.N.Y. 1987). Women bus drivers sued the district, claiming this practice violated the equal protection clause of the U.S. Constitution under the Fourteenth Amendment. See id. at 1474. KJ countersued, arguing that assigning women bus drivers violated their free exercise of religion under the First Amendment. See id. at 1466–67. The Court decided in favor of the women drivers. See id. at 1474–75. However, when the women resumed their KJ routes, the Chassidic children stopped taking the buses, causing a fear of layoffs among drivers because of a loss of routes. See Arnold H. Lubasch, Hasidim Lose Court Case on Bus Drivers, N.Y. TIMES (May 9, 1987), http:// www.nytimes.com/1987/05/09/nyregion/hasidim-lose-court-case-on-bus-drivers.html. The issue disappeared when KJ got its own school district and began providing its own transportation. See Grumet, 512 U.S. at 693–94. 269 See Grumet, 512 U.S. at 690. 270 See id. at 694; Joseph Berger, The Supreme Court: The School; Ruling Leaves Anxiety among Parents but Perhaps Little Change for Students, N.Y. TIMES (June 28, 1994), http:// www.nytimes.com/1994/06/28/us/supreme-court-school-ruling-leaves-anxiety-among-parents- but-perhaps-little.html?pagewanted=all. 271 See Grumet, 512 U.S. at 690, 710, 711, 732. 272 See id. at 696, 703, 709–10. 273 See id. at 698. 274 See id. at 690, 693 n.1. 275 See id. at 691. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
1416 Albany Law Review [Vol. 80.4 and candidate would be a Satmar Chassidic person.276 Eleven days after the Supreme Court’s decision, New York passed a new law that “permitted independent towns and villages inside larger school districts to secede and organize their own school districts if they met five criteria.”277 Assembly Speaker Sheldon Silver acknowledged that these criteria were drawn so as to include Kiryas Joel,278 but noted that twenty-eight other existing towns and villages could meet them. Louis Grumet sued again.279 The Appellate Division, Third Department, found in his favor, stating: “[T]he current law brings about precisely the same result as the prior law, the creation of a special school district for the Village of Kiryas Joel and no other municipality in the state.”280 A third version of the bill, this one signed by a Republican Governor, George Pataki, was overturned in 1999 by the state’s high court, the Court of Appeals.281 In anticipation of this ruling, the New York State legislature passed a fourth law in August 1999 with criteria for creation of a school district that might be met, it claimed, by twenty-nine municipalities, of course including Kiryas Joel.282 This finally passed muster, with State Supreme Court Justice John K. McGuirk sitting in Orange County.283
276 See id. at 698. This reasoning calls into question whether the Village itself is constitutional. See Myers & Stolzenberg, supra note 87. 277 Joseph Berger, School District of Kiryas Joel is Ruled Illegal, N.Y. TIMES (Aug. 27, 1996), http://www.nytimes.com/1996/08/27/nyregion/school-district-of-kiryas-joel-is-ruled-illeg al.html. 278 See id. 279 See Grumet v. Cuomo, 647 N.Y.S.2d 565, 566–67 (App. Div. 1996). 280 Id. at 569. 281 See Grumet v. Pataki, 93 N.Y.2d 677, 682–83, 686, 697 (1999); Somini Sengupta, Pataki Signs New Bill Allowing Hasidic Public School District, N.Y. TIMES (Aug. 12, 1997), http:// www.nytimes.com/1997/08/12/nyregion/pataki-signs-new-bill-allowing-hasidic-public-school-d istrict.html; Governor George E. Pataki, NAT’L GOVERNORS ASS’N, http://www.nga.org /cms/home/governors/past-governors-bios/page_new_york/col2-content/main-content-list/title_ pataki_george.html (last visited Sept. 15, 2017). 282 See Lisa W. Foderaro, Hasidic Public School Loses again Before U.S. Supreme Court, but Supporters Persist, N.Y. TIMES (Oct. 13, 1999), http://www.nytimes.com/1999/10/13/ nyregion/hasidic-public-school-loses-again-before-us-supreme-court-but-supporters-persist.ht ml. 283 See Abby Goodnough, Ruling Favors Public School in Hasidic Village, N.Y. TIMES (Feb. 20, 2001), http://www.nytimes.com/2001/02/20/nyregion/ruling-favors-public-school-in-hasidic -village.html?_r=0; Judge Profile: John K. McGuirk, N.Y.L.J., http://judges.new yorklawjournal.com/profile/John_K._McGuirk/John_McGuirk-907.xml (last visited Nov. 18, 2016). In New York State, the Supreme Court is a court of original jurisdiction. See Courts Outside New York City: Overview, NYCOURTS.GOV, https://www.nycourts.gov/courts/cts- NYC.shtml (last updated Feb. 9, 2015). The high court is the Court of Appeals. See Appellate Courts: Court of Appeals, NYCOURTS.GOV, https://www.nycourts.gov/COURTS/courtof Appeals.shtml (last updated Feb. 24, 2013). A flaw was found in the statute: it applied to THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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In 1994, the Kiryas Joel School District had just over forty children enrolled.284 The state’s preferred minimum school district enrollment is 500 children.285 The district’s total revenue stood at $2,392,500, with $1,709,000 of that coming from real property taxes. In the 2013-2014 school year the district spent approximately $33.4 million to serve about 170 children.286 About half of these funds were from local sources.287 Just under half was from federal and state aid.288 Additional fees were charged for students from other districts, including some payments by East Ramapo, to serve their Chassidic special needs children.289
V. THE CHASSIDIC BLOC VOTE AND ITS CONSEQUENCES In addition to dominance of governments created by or for it, the Hudson Valley’s Chassidic communities exercise governmental control in some pre-existing local jurisdictions in places in which they have settled, and exercise great influence too, as we have seen, at the regional, state, and even national levels.290 The Hudson Valley Chassidic communities’ political clout is built upon three pillars: rapid population growth, the deliverability of its vote (its political machine-like discipline), and alliances with other ultra- Orthodox Jewish communities downstate.291 municipalities with 10,000 people or more, and Kiryas Joel had a population in the immediate preceding decennial federal census—1990, the germane reference—of only approximately 7,500. See Goodnough, supra. Justice McGuirk ruled that the intent of the law was to allow the Kiryas Joel School District to be formed, and accepted evidence that the Villages (and therefore the school district’s) population exceeded 10,000 at its formation on October 29, 1999. See id.; Order, In re Petition of the Village of Kiryas Joel to Form a Union Free School District (Oct. 29, 1999), http://www.kjseqra.com/507Acres/DGEIS%20Vol%202% 20Appendices/Appendix%20I%20School%20District%20Information.pdf. 284 See Bd. of Educ. v. Grumet, 512 U.S. 687, 694 (1994). 285 See id. at 700. 286 See Search for Public School Districts: Kiryas Joel Village Union Free School District, NAT’L CTR. EDUC. STATS., https://nces.ed.gov/ccd/districtsearch/district_detail.asp?Search=1& InstName=Kiryas+Joel+Village+Union+Free+School+District&DistrictType=1&DistrictType =2&DistrictType=3&DistrictType=4&DistrictType=5&DistrictType=6&DistrictType=7&Distr ictType=8&NumOfStudentsRange=more&NumOfSchoolsRange=more&ID2=3604758&detail s= (last visited Sept. 17, 2017). 287 See id. 288 See id. 289 See In Depth, STRONG EAST RAMAPO, http://www.strongeastramapo.org/indepth/ (last visited Sept. 17, 2017). 290 See, e.g., Freeman Klopott, Hasidim Spark Backlash in NYC Exurbs that Entangles Cuomo, BLOOMBERG (May 9, 2014), http://www.bloomberg.com/news/articles/2014-05- 09/hasidim-spark-backlash-in-nyc-exurbs-that-entangles-cuomo (noting that candidates who secure the endorsement of Chassidic leaders typically win elections, as the Chassidic community is known for consistently delivering bloc votes). 291 See, e.g., Hema Easley, Election Shows Clear Divide in Monroe, PHOTO NEWS (Dec. 27, THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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A. The Congressional District Example As of 2012, there were more than 700,000 people living in each of New York State’s congressional districts.292 In an extraordinary exception to the national pattern, the district in which Kiryas Joel is located (currently NY18) has seen three changes in party control and three incumbents defeated within the last decade.293 The Kiryas Joel majority was with the winner in five of the six of these congressional elections, and was clearly decisive in Sean Maloney’s defeat of Nan Hayworth in the close 2014 rematch.294 In two previous elections, including one in which Hayworth defeated Democrat incumbent John Hall, she had Chassidic support.295 The Chassidic bloc is growing fast: the number of votes recorded for Congress within Kiryas Joel in 2014 (6,250) was more than sixty percent higher than the number just ten years earlier (3891).296 And the vote is not simply delivered—it is allocated. Kiryas Joel does not generally give its entire vote to one candidate for Congress; rather, it provides about two-thirds to the preferred candidate, and about one-third to his or her opponent.297 Except for in 2014, when
2013), http://www.thephoto-news.com/apps/pbcs.dll/article?AID=/20131227/NEWS01/131229 959/Election-shows-clear-divide-in-Monroe (last updated Dec. 27, 2013) (“Kiryas Joel, a village of 1.1 square miles with registered voters, about two-thirds of those in the rest of the Town of Monroe, was able to outvote the larger town. Voter turnout in Monroe was 57 percent. In Kiryas Joel it was 77.”); see also Karben, supra note 67 (“The Hasidim are fortified by demographic trends that seem to make their dominance in the region’s politics an inevitability—the same trends that agitate those determined to stop them. Population growth in the three exclusively Hasidic Villages of Kaser (Rockland), New Square (Rockland)[,] and Kiryas Joel (Orange) averages 5% per year.”). 292 See New York Congressional Districts 2012: Eligible Voters Mapped, CUNY: CTR. URB. RES., https://www.gc.cuny.edu/Page-Elements/Academics-Research-Centers-Initiatives/Cente rs-and-Institutes/Center-for-Urban-Research/CUNY-Mapping-Service/Projects/New-York-Con gressional-Districts-2012-eligible-voters-mapped (last visited Sept. 17, 2017). 293 See Why is Sean Patrick Maloney Quiet about Kiryas Joel?, SUBURBANITES (Nov. 16, 2015), http://www.suburbanites.com/news/editorial/why-is-sean-patrick-maloney-quiet-about- kiryas-joel/ [hereinafter Quiet about Kiryas Joel]; infra Table III. 294 See Quiet about Kiryas Joel, supra note 293 (“Democratic and incumbent Congressman Sean Patrick Maloney won his 2014 campaign over Republican Nan Hayworth by one of the slimmest margins in the history of this district, and largely the result of the bloc vote of Kiryas Joel.”); infra Table III. 295 See Chris McKenna, Maloney Wins 18th District after Bitter Battle, TIMES HERALD: REC. (Nov. 8, 2012), http://www.recordonline.com/article/20121108/NEWS/211080324 [hereinafter McKenna, Maloney Wins] (stating that Kiryas Joel endorsed Hayworth in both the 2010 and 2012 elections). 296 See infra Table III. 297 See, e.g., Chris Bragg, Blood Feud Dampens Satmar Power, CRAIN’S N.Y. BUS., http://www.crainsnewyork.com/article/20121113/BLOGS04/311139993/blood-feud-dampens-s atmar-power (last updated Feb. 11, 2013) (describing the 2012 election where 3,335 Kiryas Joel votes went to Hayworth and 1,518 went to Maloney); see also Chris McKenna, KJ Split Diluted Voting Impact, TIMES HERALD: REC., http://www.recordonline.com/article/20141106 THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
2016/2017] The Chassidic Impact on Local Government 1419 it was so very close, about ninety-two percent of the villagers who voted for Congress supported Maloney.298 New York’s election law allows cross endorsement,299 which means that candidates may run on more than one party’s line, and votes are aggregated to determine the winner.300 Presumably so that their effect can be seen and measured, Kiryas Joel leaders have their voters record their preferences whenever cross endorsement of their preferred candidate makes it possible on a third party line. Usually it is the Independence line.301 But in 2014, Maloney was not on that line; Hayworth was.302 Maloney was, however, cross endorsed by the Working Families Party.303 This is where Kiryas Joel gave him the Chassidic community’s votes.304 There were a few voters in Kiryas Joel who voted for Hayworth on the Independence line, though.305 They were probably acting out of habit, inadvertently missing their cue from Kiryas Joel’s political leadership.
/NEWS/141109639 (last updated Nov. 6, 2014) [hereinafter McKenna, KJ Split] (discussing the two Kiryas Joel voting blocs). 298 See ORANGE CTY. BD. OF ELECTIONS, GENERAL ELECTION: 11/04/2014, REPRESENTATIVE IN CONGRESS 10–11 (2014) [hereinafter 2014 GENERAL ELECTION: CONGRESS], http://www. orangecountygov.com/filestorage/124/126/1240/16944/18251/GE14_-_Representative_in_Cong ress_-_18th_CD.PDF; infra Figure 1. 299 Celia Curtis, Comment, Cross-Endorsement by Political Parties: A “Very Pretty Jungle”?, 29 PACE L. REV. 765, 767 n.12 (2009). 300 See id. at 766. 301 See Kiryas Joel Big Bloc Likes its Independence, TIMES HERALD: REC. (Nov. 6, 2008), http://www.recordonline.com/article/20081106/COMM/811060313. 302 See 2014 GENERAL ELECTION: CONGRESS, supra note 298, at 10–11. 303 See id. 304 See id. 305 See id. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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Table III. Kiryas Joel Voting in Congressional Elections, 2004- 2014. Year Winner Loser District KJ KJ For KJ KJ% KJ Margin Vote Margin wins 2004306 Kelly - R* Jaliman - D 87968 3891 Kelly 1143 59.8 Y 2006307 Hall - D Kelly - R* 4760 3227 Hall 1329 65.4 Y
2008308 Hall - D* Lalor - R 48739 4199 Hall 1529 64.6 Y
2010309 Hayworth Hall - D* 11190 4527 Hayworth 859 57 Y - R 2012310 Maloney - Hayworth - 10796 5195 Hayworth 1265 58.7 N D R* 2014311 Maloney - Hayworth - R 2790 6236 Maloney 3755 65 Y D* * means incumbent % means of ballots cast, including blanks and third parties
Interestingly , there were a significant number of Kiryas Joel votes that Sean Maloney did not get.312 They went to . . . no one. Approximately 1,800 ballots cast in this election were blank, far more than for previous congressional elections in Kiryas Joel.313 This was no help to Hayworth, of course, though perhaps an implied reservation linked to the fact that Maloney—out of accord with conservative Chassidic religious values—was openly gay.314
306 See ORANGE CTY. BD. OF ELECTIONS, GENERAL ELECTION: 11/02/2004, REPRESENTATIVE IN CONGRESS 11−12 (2004), http://www.orangecountygov.com/filestorage/124/126/1240/ 218/ 2004_General_Election_19th_CD.pdf; infra Figure 1. 307 See ORANGE CTY. BD. OF ELECTIONS, GENERAL ELECTION: 11/07/2006, REPRESENTATIVE IN CONGRESS 10 (2006), http://www.orangecountygov.com/filestorage/124/126/1240/ 214/ 2006_General_Election_-_19th_CD.PDF; infra Figure 1. 308 See ORANGE CTY. BD. OF ELECTIONS, GENERAL ELECTION: 11/04/2008, REPRESENTATIVE IN CONGRESS 6 (2008), http://www.orangecountygov.com/filestorage/124/126/1240/226/206/ GE 08_-_19th_CD.pdf; infra Figure 1. 309 See ORANGE CTY. BD. OF ELECTIONS, GENERAL ELECTION: 11/02/2010, REPRESENTATIVE IN CONGRESS 28–29 (2010), http://www.orangecountygov.com/filestorage/124/126/1240/222/ 3695/2010_GENERAL_19TH_CONGRESSIONAL.PDF [hereinafter 2010 GENERAL ELECTION: CONGRESS]; infra Figure 1. 310 See ORANGE CTY. BD. OF ELECTIONS, GENERAL ELECTION: 11/06/2012, REPRESENTATIVE IN CONGRESS 13–14 (2012), http://www.orangecountygov.com/filestorage/124/126/1240 /9686 /11770/18th_Congress.PDF [hereinafter 2012 GENERAL ELECTION: CONGRESS]; infra Figure 1. 311 See 2014 GENERAL ELECTION: CONGRESS, supra note 298, at 10–11. 312 See id.; infra Figure 1. 313 See 2014 GENERAL ELECTION: CONGRESS, supra note 298, at 10–11; 2012 GENERAL ELECTION: CONGRESS, supra note 310, at 13–14; 2010 GENERAL ELECTION: CONGRESS, supra note 309, at 28–29; infra Figure 1. 314 See Nick Abrams, Sean Patrick Maloney, Openly Gay Congressman: “Our Family Should Be Equal To Everybody Else’s,” HUFFINGTON POST (Mar. 26, 2013), http://www.huffington post.com/2013/03/26/sean-patrick-maloney-gay-marriage_n_ 2955618.html. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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B. Participation: A Local Focus New York fills many offices on the general election day in November. It is well known that voters generally exhibit voter fatigue,315 which means that fewer people cast votes for down ballot races than for the most visible top-of-the ticket statewide and national elections.316 Not Chassidic voters: for them, the more local an election is, the more important it is.317 In 2014, blank ballots were far more prevalent from Kiryas Joel for statewide races than for contests for the town board and State Assembly.318 Competitiveness also appears to be a factor: Kiryas Joel voters, more than others in Monroe, are less likely to waste their ballots if they are perceived as able to make a difference.
315 See Editorial, Voter Fatigue in New York, N.Y. TIMES (Dec. 7, 2015), http://www.nytimes .com/2015/12/07/opinion/voter-fatigue-in-new-york.html?_r=0. 316 See Meg O’Connor, Concerns of “Voter Fatigue” as New York Schedules Four 2016 Election Days, GOTHAM GAZETTE (Jan. 12, 2016), http://www.gothamgazette.com/index.php /government/6081-concerns-of-voter-fatigue-as-new-york-schedules-four-2016-election-days. 317 See Steven Windmueller, The 2016 Election: Jews and their Politics, JERUSALEM CTR. PUB. AFF. (Feb. 1, 2016), http://jcpa.org/article/the-2016-election-jews-and-their-politics/. 318 See infra Table IV. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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Table IV. Blank or Scattered Votes in Monroe, 2014. Town Kiryas Rest of Total Joel Monroe Governor319 2321 1856 465 AG320 3028 1899 1129 Comptroller321 3087 1916 1171 Congress322 2482 1837 645 State Senate323 3234 2035 1199 Assembly324 264 112 152 S/Ct. Judge325 1792 267 1525 Town Board326 671 232 439
C. Withholding the Vote: An Alternative Strategy Patterns of voting in the Chassidic Village of New Square (within the Town of Ramapo) demonstrate that bloc-voting practices in the
319 See ORANGE CTY. BD. OF ELECTIONS, GENERAL ELECTION: 11/4/2014, GOVERNOR AND LIEUTENANT GOVERNOR 12 (2014) [hereinafter 2014 GENERAL ELECTION: GOVERNOR], http://www.orangecountygov.com/filestorage/124/126/1240/16944/18251/GE14_-_NYS_Govern or_%26_Lt._Governor.PDF; see infra Figure 1. 320 See ORANGE CTY. BD. OF ELECTIONS, GENERAL ELECTION: 11/4/2014, ATTORNEY GENERAL 11–12 (2014), http://www.orangecountygov.com/filestorage/124/126/1240/16944 /18251/GE14_-_NYS_Attorney_General.PDF (2014); see infra Figure 1. 321 See ORANGE CTY. BD. OF ELECTIONS, GENERAL ELECTION: 11/4/2014, COMPTROLLER 10– 11 (2014), http://www.orangecountygov.com/filestorage/124/126/1240/16944/18251/GE14_-_N YS_Comptroller.PDF (2014); see infra Figure 1. 322 See ORANGE CTY. BD. OF ELECTIONS, GENERAL ELECTION: 11/4/2014, REPRESENTATIVE IN CONGRESS 18TH DISTRICT 10–11 (2014), http://www.orangecountygov.com/filestorage/124/ 126/1240/16944/18251/GE14_-_Representative_in_Congress_-_18th_CD.PDF; infra Figure 1. 323 See ORANGE CTY. BD. OF ELECTIONS, GENERAL ELECTION: 11/4/2014, NYS SENATE 39TH DISTRICT 6–7 (2014), http://www.orangecountygov.com/filestorage/124/126/1240/16944/ 18251/GE14_-_Member_of_Senate_39th.PDF; infra Figure 1. 324 See ORANGE CTY. BD. OF ELECTIONS, GENERAL ELECTION: 11/4/2014, MEMBER OF ASSEMBLY 98TH DISTRICT 2–3 (2014) [hereinafter 2014 GENERAL ELECTION: 98TH ASSEMBLY DISTRICT], http://www.orangecountygov.com/filestorage/124/126/1240/16944/18251/GE14_-_ Member_of_Assembly_98th.PDF; infra Figure 1. 325 See ORANGE CTY. BD. OF ELECTIONS, GENERAL ELECTION: 11/4/2014, STATE SUPREME COURT JUSTICE 9TH JUDICIAL DISTRICT 9–10 (2014), http://www.orangecountygov. com/filestorage/124/126/1240/16944/18251/GE14_-_Supreme_Court_Justice_9th_JD.PDF; infra Figure 1. 326 See ORANGE CTY. BD. OF ELECTIONS, GENERAL ELECTION: 11/4/2014, COUNCILMAN (TFV) MONROE 1–2 (2014) [hereinafter 2014 GENERAL ELECTION: MONROE COUNCILMAN], http://www.orangecountygov.com/filestorage/124/126/1240/16944/18251/GE14_- _Town_of_Monroe.PDF; infra Figure 1. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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Village of Kiryas Joel are not unique.327 Voter turnout and discipline are very similar in the two places. In the 2014 election, for example, 72% of those eligible in New Square cast a ballot— more than twice the level of participation (34%) of others in Ramapo.328 Moreover, about 99% of New Square’s votes went to Democrat party candidates.329
Figure 1330
Chart I - Vo ng Distribu on by Party in Ramapo
100.00%
50.00%
0.00% Democrat Republican New Square Ramapo
But one election that year demonstrates the use of another strategy available to the Chassidic voting bloc: withholding the vote. Notwithstanding their 72% participation rate and overwhelming support for Democrats for other contests in 2014, only 23.9% of voters from New Square cast ballots in the election for the State Assembly between Democrat incumbent Ellen Jaffee and Republican Robert Romanowski.331 Jaffee won by 4,818.332 New
327 See, e.g., Avi Schick, Investigating a Vote, N.Y. TIMES (Mar. 1, 2001), http://www.nytimes.com/2001/03/01/opinion/investigating-a-vote.html. 328 See ROCKLAND CTY. BD. OF ELECTIONS, GENERAL ELECTION OFFICIAL RESULTS: DISTRICT DETAILS (2014), http://rocklandgov.com/files/5114/1841/6545/EL30-Gen2014.pdf [hereinafter ROCKLAND CTY. BD. OF ELECTIONS: DISTRICT DETAILS]. 329 Id. 330 Created by the author from data made available by the Rockland County Board of Elections. See id. 331 See ROCKLAND CTY. BD. OF ELECTIONS: DISTRICT DETAILS, supra note 328. 332 See ROCKLAND CTY. BD. OF ELECTIONS, GENERAL ELECTION OFFICIAL RESULTS: ACCUMULATED RESULTS 3 (2014), http://rocklandgov.com/files/7414/1841/6526/EL45- THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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Square support for her opponent would not have changed the outcome. But Jaffee had backed the effort in Ramapo to adopt a ward system.333 So withholding the vote while giving it to other Democrats—not opposition to the entrenched incumbent, but not support either—was a warning shot.
Figure 2334
Chart II - Voter Turnout: Witholding the Vote for State Assembly in New Square
80%
60%
40%
20%
0% New Square Ramapo All Other Races St. Assbly
D. Using Power: The East Ramapo School District Only about a quarter of the children (about 9,000) within the boundaries of the East Ramapo School District attend public schools.335 The remaining three quarters (about 24,000) go to private schools336—almost all to Yeshivas associated with the Chassidic Jewish community.337 The public school children are
Gen2014.pdf [hereinafter ROCKLAND CTY. BD. OF ELECTIONS: ACCUMULATED RESULTS]. 333 See, e.g., Akiko Matsuda, Talk on Ward Referendums Gets Heated in Ramapo, RENO GAZETTE-J., https://www.rgj.com/story/politics-on-the-hudson/2014/09/22/talk-on-ward-refer endums-get-heated-in-ramapo/16074415/ (last updated Sept. 23, 2014). 334 Created by the author from data made available by the Rockland County Board of Elections. See ROCKLAND CTY. BD. OF ELECTIONS: ACCUMULATED RESULTS, supra note 332. 335 See HENRY M. GREENBERG, N.Y. STATE EDUC. DEP’T, EAST RAMAPO: A SCHOOL DISTRICT IN CRISIS 6 (2014), http://www.p12.nysed.gov/docs/east-ramapo-fiscal-monitor-presentat ion.pdf. 336 See id. 337 See id. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
2016/2017] The Chassidic Impact on Local Government 1425 predominantly African American, or from Haitian or Hispanic immigrant backgrounds.338 The Chassidic community took control of the East Ramapo school board in 2008.339 In years prior, there was a quid pro quo arrangement, a kind of entente, between the board and the community: Chassidic voters agreed to remain disengaged from school board elections and the board agreed to provide the maximum resources possible in support of Yeshiva students.340 Dissatisfaction arose, however, when the board, citing legal restrains, refused to pay for the placement of special needs children in private schools.341 The Chassidic community organized, mobilized, and by increments, took over the school board.342 Soon, budgets were cut, teachers and administrators were fired, advanced academic programming and extra-curricular programming ended, and full-day kindergarten was eliminated.343 A State Education Department-commissioned inquiry by fiscal monitor Henry M. Greenberg, delivered in 2014, showed that the board had systematically slashed public school budgets and programs to the bone.344 Math and English scores at the elementary and middle school levels and high school graduation rates were far below state averages.345 Meanwhile, district spending to pay for mainstreaming special needs Chassidic children in religious schools and gender segregated school bussing increased.346 In addition, much was spent by the board on legal fees to achieve these ends and defend its discretion to continue making these choices.347
338 See id. 339 See A Not-So-Simple Majority, THIS AM. LIFE (Sept. 12, 2014), http://www.thisamerica nlife.org/radio-archives/episode/534/a-not-so-simple-majority. 340 See id. 341 See id. 342 See id. 343 See id. 344 See GREENBERG, supra note 335, at 29–33. 345 See id. at 7, 8. 346 See id. at 11, 15, 17. 347 See id. at 27, 28. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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Figure 3348
Chart III - Rockland Schools: Property Tax Effort - 2000 - 2014
$30.00 $25.00 $20.00 $15.00 $10.00 $5.00 2001 2003 2005 2006 2007 2008 2009 2011 2013 2000 2002 2004 2010 2012 2014 YEAR VALUE
Clarkstown East Ramapo
Haverstraw-Stony Point Nanuet Union
Nyack Pearl River
Ramapo South Orangetown
DOLLARS TAX REVENUE PER $1,000 REAL PROPERTY
Advocates of the Chassidic majority reacted, in part, by charging anti-Semitism.349 District officials said further that the real problem is insufficient state education aid.350 But state school spending cutbacks were not unique to East Ramapo.351 Moreover, the State Comptroller’s data indicated that since 2011, the Chassidic-controlled board majority had the lowest local tax effort— dollars raised from the real property tax relative to the true value of taxable real estate—of the eight school districts in the county.352 Taxpaying members of the community, with almost all of their
348 Calculated by the author. 349 See id. at 36. 350 See A Not-So-Simple Majority, supra note 339. 351 See id. 352 Letter from Gabriel F. Deyo, Deputy Comptroller, Div. of Local Gov’t & Sch. Accountability, Office of the N.Y. State Comptroller, to Deborah L. Wortham, Interim Superintendent of Schs., and Members of the Bd. of Educ. (June 2016), https://www .osc.state.ny.us/localgov/audits/schools/2016/eastramapo.pdf; see also A Not-So-Simple Majority, supra note 339 (discussing other districts raising property taxes). THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
2016/2017] The Chassidic Impact on Local Government 1427 children in private schools, believed they got little in return for their school taxes.353 Consequently, they regularly rejected school budgets.354 In ten of the last fifteen years (2000-2015), school district voters in East Ramapo rejected the first offering of the school district budget.355 During this entire period only one other district in the county had a first school budget fail at the polls.356 The fiscal monitor also identified financial management and governance process issues.357 To achieve nominal budget balance, costs were unrealistically projected and fund balances expended.358 Moreover, a disproportionate share of East Ramapo school board meetings was conducted in executive session.359 The posture and decisions of board leadership exacerbated the angry incivility of meetings.360 Public comment was scheduled last, requiring those wishing to speak to wait until late into the night before being heard.361 Regents Board Chancellor Merryl Tisch endorsed the idea of a special monitor.362 However, though she and her colleagues are elected by the legislature, there is little fondness for them in the State Senate.363 This is because the election is by vote in both the
353 See A Not-So-Simple Majority, supra note 339. 354 See GREENBERG, supra note 335, at 21. 355 See Alice Gomstyn, East Ramapo’s Next Budget: Let us Know What You Think, LOHUD: BLOGS (Mar. 7, 2007, 2:44 PM), http://education.lohudblogs.com/2007/03/07/east-ramapos- next-budget-let-us-know-what-you-think/; Mareesa Nicosia, East Ramapo Passes School Budget, LOHUD (May 20, 2015), http://www.lohud.com/story/news/local/rockland/2015 /05/20/east-ramapo-school-district-budget-vote-passes-education/27631995/; Andrea Rubin, E. Ramapo Budget Rejected, J. NEWS (May 17, 2000), https://www.newspapers.com/newspage /163414593/. 356 See Alex Taylor, North Rockland Budget Voted Down, LOHUD: BLOG (May 17, 2011, 11:06 PM), http://rockland.lohudblogs.com/2011/05/17/north-rockland-budget-voted-down/. 357 See Mareesa Nicosia, State Calls For East Ramapo Watchdog, LOHUD (Nov. 19, 2014), http://www.lohud.com/story/news/education/2014/11/17/east-ramapo-monitor-wants-state- intervention/19191367/. 358 See Press Release, Office of the N.Y. State Comptroller, DiNapoli Finds Budgeting Problems at East Ramapo Central School District (July 19, 2013), https://www.osc .state.ny.us/press/releases/july13/071913a.htm; Weldon McWilliams IV & Adam Baldachin, View: Albany Must Help East Ramapo, LOHUD (May 2, 2015), http://www.lohud.com/story/ opinion/contributors/2015/05/02/view-albany-must-help-east-ramapo/26729149/; Nicosia, supra note 357. 359 See GREENBERG, supra note 335, at 35. 360 See, e.g., Wallace-Wells, supra note 4. 361 See GREENBERG, supra note 335, at 35; Wallace-Wells, supra note 4. 362 See Merryl H. Tisch & David G. Sciarra, When a School Board Victimizes Kids, N.Y. TIMES (June 3, 2015), http://www.nytimes.com/2015/06/03/opinion/when-a-school-board- victimizes-kids.html?ref=opinion&_r=0. 363 See Letter from Ruben Diaz, Senator, N.Y. State, to Merryl H. Tisch, Chancellor, N.Y. State Educ. Dep’t (July 2, 2014), https://www.nysenate.gov/newsroom/press-releases/ruben- diaz/open-letter-chancellor-merryl-h-tisch; Press Release, N.Y. State Senate, Senate Passes THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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Assembly and the Senate sitting together, and by those rules, the numerous Assembly Democrats have effective control of all the outcomes.364 To explain the Senate’s refusal to support a special monitor for East Ramapo, Republican Majority Leader John Flanagan expressed concern about suborning the power of a local elected school board.365 But it is well established that the state Constitution does not guarantee home rule for school districts.366 It requires that the legislature, not the school boards it created, “provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated.”367 Following its appointment of MaryEllen Elia as the new State Education Commissioner in July 2015, the Regents decided, on Elia’s recommendation, to proceed on its own authority.368 In August 2015, a team of three overseers, headed by former New York City Schools Chancellor Dennis Walcott, was appointed for the East Ramapo district to “monitor [district] operations and provide recommendations to ensure [that] students have access to appropriate programs and services, and that the district is on a path to fiscal and programmatic stability.”369 Walcott and his colleagues recommended an agenda of nineteen wide-reaching governance, fiscal, administrative, and pedagogical changes for the East Ramapo district, to: [I]mprov[e] teaching and learning to ensure that all students graduate from the District with the opportunity to succeed; [b]ring[] the District’s fiscal house in order so that the
Bill Reforming the Board of Regents Selection Process (Mar. 14, 2014), https://www .nysenate.gov/newsroom/press-releases/senate-passes-bill-reforming-board-regents-selection- process [hereinafter Reforming the Board of Regents]; Beth Fertig, Pressure Mounting to Halt Evaluations Tied to Common Core, WNYC (Feb. 4, 2014), http://www.wnyc.org/story/ pressure-mounting-halt-evaluations-tied-common-core/. 364 See Reforming the Board of Regents, supra note 363. 365 Joseph Spector, “We’re Not Doing That,” Senate Leader Says of East Ramapo Monitor, LOHUD (Dec. 23, 2015), http://www.lohud.com/story/politics-on-the-hudson/2015/12/23/were- not-doing-senate-leader-says-east-ramapo-monitor/77755900/. 366 See JAMES A. COON, DIV. LOC. GOV’T SERVS., ADOPTING LOCAL LAWS IN NEW YORK STATE 6 (1998), https://www.dos.ny.gov/lg/publications/Adopting_Local_Laws_in_New_York_State. pdf. 367 N.Y. CONST. art. XI, § 1. 368 See Press Release, N.Y. State Educ. Dep’t, MaryEllen Elia Appointed New Commissioner of the State Education Department (May 26, 2015), http://www.nysed.gov/ Press/MaryEllen-Elia-Appointed-New-Commissioner-of-the-State-Education-Department. 369 Jane Lerner, State Ed. Chief to E. Ramapo: “We Hear You,” LOHUD (Aug. 14, 2015), http://www.lohud.com/story/news/education/2015/08/13/east-ramapo-dennis-walcott-monitor- team/31617407/. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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community and state can be confident that funding and new investments are prudently and efficiently used to the benefit of students; and [h]eal[] the deep rifts in the community that have unfortunately contributed to an environment of paralyzing mistrust.370 Many of these addressed earlier criticisms of board decisions and district operations, in effect validating them.371 In one example, the monitors reiterated the need for the creation of a successor monitoring board with veto power over the district’s elected school board, an option previously rejected in the state legislature.372 Recommendation number nineteen, the provision of additional state resources, was made conditional upon “the district (board and superintendent) demonstrat[ing] sufficient fiduciary responsibility and restoration of cuts specifically outlined by the monitors to public school programming.”373
E. Protecting the Power Base: Town of Ramapo At a special election on September 30, 2014, citizens in the Town of Ramapo voted on two questions: (1) whether to increase the size of the town board from four to six members, and (2) whether to elect board members from districts rather than at-large.374 State law provides that if petitioned by five percent of the voters in the previous gubernatorial election, the town board must hold referenda on altering board size and the use of wards.375 Preserve Ramapo, a community-based political action organization, has pushed for years to get these questions on the ballot.376 The successful effort to reach the ballot began with the filing of petitions on September 6, 2012—delay was the result of litigation necessary to overcome an initial finding by the town clerk that these petitions
370 DENNIS M. WALCOTT ET AL., OPPORTUNITY DEFERRED: A REPORT ON THE EAST RAMAPO CENTRAL SCHOOL DISTRICT 26 (2016), https://www.scribd.com/document/293267740/ER- Report-FINAL-combined-pdf. 371 See id. at 2. 372 See id. at 24; Spector, supra note 365. 373 WALCOTT ET AL., supra note 370, at 24. 374 See Matsuda, supra note 333. 375 N.Y. TOWN LAW § 81 (McKinney 2017). 376 See About Us, PRESERVE RAMAPO, http://preserve-ramapo.com/about-us/ (last visited Sept. 20, 2017); see also Sandy Eller, Rockland County, N.Y.—Observers: Ramapo Referendum Engineered to Transform Jewish Community into Instant Minority, VOS IZ NEIAS? (Sept. 29, 2014), http://www.vosizneias.com/180238/2014/09/29/rockland-county-ny- ramapo-referendum-engineered-to-transform-jewish-community-into-instant-minority-say- obsrevers/ (mentioning previous attempts by the group Preserve Ramapo to initiate a ward system). THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
1430 Albany Law Review [Vol. 80.4 were invalid.377
Figure 4378
Suburban New Yorkers generally value at-large elections; recent research has shown that since the 1970s, referenda held across the state to establish ward systems have almost always failed.379 Preserve Ramapo suburbanites sought change because, according to Robert Rhodes, one if its leaders, the town: [H]ad a supervisor for the past fifteen years who is controlled by the khasidic community. There is a degree of corruption that probably hasn’t existed since the days of coal company towns in Kentucky. We have terrible fire traps and
377 See Town of Ramapo, Minutes of the Regular Meeting of the Ramapo Town Board (Aug. 21, 2014), http://ramapony.iqm2.com/Citizens/FileOpen.aspx?Type=15&ID=1031&Inline =True [hereinafter Ramapo Regular Meeting Minutes]. 378 Michael Castelluccio, Was There Election Fraud in Ramapo? A Personal Opinion, PRESERVE RAMAPO (Aug. 29, 2015), http://preserve-ramapo.com/was-there-election-fraud-in- ramapo-a-personal-opinion/ (republishing a letter by Peter Bradley, written the same day, in the Rockland Voice). 379 Gerald Benjamin, At-Large Elections in N.Y.S. Cities, Towns, Villages, and School Districts and the Challenge of Growing Population Diversity, 5 ALB. GOV’T L. REV. 733, 741– 42, 744–45 (2012). THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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terrible overcrowding because zoning laws are not enforced; the zoning board and planning board consist almost entirely of khasidim. And the politicians know that no matter what else they do, if they serve the ultra-Orthodox agenda, they will be reelected.380 The push for a bigger board elected from wards reflected the judgment of insurgent elements in the community that this structural change was essential to breaking—or at least diminishing—the iron grip on power of the town Democrat organization, supported by thousands of Chassidic block votes.381 The special election referendum was managed by the office of the town clerk.382 Poll watchers were proscribed from observing the vote.383 Initially, citizens were advised by the clerk’s office that in order to vote, they had to be registered with the county board of elections at least seven days in advance, and that absentee ballots would be counted if they were postmarked on September 29 and received within seven days of the election.384 This was contrary to town law, which provided that to be counted, ballots had to be received before 5 p.m. on election day.385 Finally and most importantly, in a last minute change taken to conform to town law—initial instructions issued by the clerk were incorrect—unregistered voters with proof of thirty days residence were permitted to file affidavit ballots.386 It was later alleged that town officials opposed to a ward system knew that affidavit voting was in fact allowed under town law, but publicized this selectively only to their supporters, many of whom were in the Chassidic community.387 “Over 90% of these ballots have addresses recorded as cast by an unregistered voter living in either Monsey, New Square, or Kaser Village,” Peter Bradley wrote for the Rockland
380 Megaphone: Fighting Khasidic Control in Upstate New York: An Interview with Robert Rhodes and Anita Altman, JEWISH CURRENTS (July 10, 2015), http://jewishcurrents.org/ megaphone-robert-rhodes-preserve-ramapo-anita-altman/. 381 See id.; Why a Ward System for Ramapo?, VOTE 6 WARDS, http://www.vote6wards.org/ why-a-ward-system-for-ramapo/ (last visited Sept. 20, 2017). 382 See Akiko Matsuda, Ramapo Not Required to Allow Poll Watchers in Referendum, LOHUD (Sept. 24, 2014), http://www.lohud.com/story/news/local/rockland/ramapo/2014/09/24/ judge-ramapo-required-allow-poll-watchers/16167063/. 383 See id. 384 Ramapo Regular Meeting Minutes, supra note 377. 385 See Akiko Matsuda, Results of Ramapo Referendums May Take Time to Determine, LOHUD (Sept. 30, 2014), http://www.lohud.com/story/news/local/rockland/ramapo/2014/09/29/ ramapos-ward-referendums-may-face-logistics-challenges/16447749/. 386 See Castelluccio, supra note 378. 387 See id. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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Voice.388 “Thus the affidavit ballots came overwhelmingly from the Hasidic community.”389 Where did all of these disengaged Chassidic voters come from? With their great attention to maximizing their communities’ political influence established, it is unlikely that Chassidic leaders left so many legitimate Ramapo voters unregistered.390 Two specific cases of election fraud were documented.391 Many others were suspected.392 The election results were impounded by Judge Margaret Garvey.393 She found that the town’s administration of the general election caused “disenfranchisement of voters and chaos and confusion at the polling locations.”394 The judge concluded: “There is no Order that this court can issue that can rectify the confusion caused by the conduct of the respondent Town of Ramapo . . . [rather,] the entire special town election must be invalidated.”395 A new election was ordered.396 On appeal, however, a panel of judges at the Appellate Division, Second Department, determined that Judge Garvey had exceeded her authority, and allowed vote counting to proceed.397 Interestingly, the appellate court did not reach the merits of the matter.398 Now it was the Democrat/Chassidic alliance that wanted to force an outcome, with original sponsors of the referendum opposed.399 With the affidavit votes counted, the opponents prevailed.400
388 See id. 389 Id. 390 Cf. id. (“[T]he belief among many of us who watched this farcical election is that town officials secretly told the Hasidic leaders that they would allow affidavit voting while keeping this a secret throughout the rest of the Town of Ramapo.”). 391 See id. 392 See id. 393 See id. 394 Decision and Order at 10, In re Parietti v. Town of Ramapo (N.Y. Sup. Ct. Oct. 7, 2014) (No. 1712/14). 395 Id. 396 See id. at 14. 397 See In re Parietti v. Town of Ramapo, 12 N.Y.S.3d 253, 253–54, 255 (App. Div. 2015). 398 See id. at 255. 399 See id. at 253–54. 400 See infra Table V. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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Table V.401 Vote in Ramapo Referenda on Ward System, 2012. Question: Create Board from 4 to Wards? 6 Seats? Yes No Yes No
Election day 13891 13526 13858 13581
Absentee 377 201 366 209
Sub-total 14268 13727 14224 13790
Affidavit 419 1854 420 1858
Total 14687 15581 14644 15648
F. Takeover: The Village of Bloomingburg The Village of Bloomingburg in Sullivan County was founded in 1833.402 At the turn of the 21st century, it was one of seventy-three New York villages with fewer than five hundred people, the number necessary under law to create a village.403 Bloomingburg’s population in 2010 was 420.404 Election day in the village often approached without declared candidates for all offices.405 In fact, in 1995, no candidate filed for any village office.406 The New York Times reported in 2014 that the previous year’s local election
401 Created by the author with data made available by Preserve Ramapo. See Michael Castelluccio, The Strange Results of the Ward Vote Count, PRESERVE RAMAPO (Aug. 28, 2015), http://www.preserveramapo.com/Ward%20Petition/Strange%20results%20of%20ward%20vot e%20count.htm. 402 See The History of the Town of Mamakating, County History, SULLIVAN COUNTY HIST. SOC’Y, http://www.scnyhistory.org/index.php?option=com_content&view=category&id=54&Ite mid=83 (last visited Sept. 20, 2017). 403 See OUTDATED MUNICIPAL STRUCTURES, supra note 62, at 3; American FactFinder: General Demographic Characteristics Census: 2000: Bloomingburg Village, New York, U.S. CENSUS BUREAU, https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml ?src=CF (last visited Sept. 20, 2017). 404 See American FactFinder: Community Facts: Bloomingburg Village, New York, U.S. CENSUS BUREAU, http://factfinder.census.gov/bkmk/cf/1.0/en/place/Bloomingburg village, New York/ALL (last visited Sept. 20, 2017). 405 See Benjamin, supra note 46, at 5. 406 See id. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
1434 Albany Law Review [Vol. 80.4 attracted only twenty-four voters.407 Because it had more permissive land use rules than the Town of Mamakating, in which it is located, Bloomingburg was approached by a developer in 2006 to annex land on which he proposed to build “Chestnut Ridge.”408 He described a plan for 125 luxury townhouses, an 18-hole golf course, a pool, and clubhouse.409 Facilities would be made available to all villagers.410 Additionally, the developer promised to repave Bloomingburg’s Main Street and build a $5 million sewage treatment plant for the village.411 In fact, he kept these two last promises.412 But then the project turned into 396 townhouses, with none of the planned amenities.413 And the developer turned out not to be the developer at all—he was a front man for Shalom Lamm.414 Lamm, a member of a prominent Orthodox Jewish family, also purchased about a quarter of the village’s established housing stock and rented homes to Chassidic families.415 In 2013, the English language Orthodox Jewish press headlined that a “new Satmar hasidic village mirroring Kiryas Joel . . . [was] set to be developed in Bloomingburg in New York State’s Sullivan County just north of New York City.”416 A name change was planned, too, to Yatev Lev.417 The village sought to use its land use control powers to slow or stop the Chestnut Ridge project and other Lamm initiatives in the community.418 There were anti-Semitic incidents.419 Alleging that the village was engaged in government sponsored anti-Semitism in
407 See Joseph Berger, A Quiet Village in the Catskills Braces for an Influx of Hasidim, N.Y. TIMES (Mar. 13, 2014), http://www.nytimes.com/2014/03/14/nyregion/quiet-village-braces-for- an-influx-of-hasidim.html?_r=2. 408 See Victoria Bekiempis, Is a Catskills Town Divided by Antisemitism or Greedy Developers?, NEWSWEEK (Oct. 12, 2014), http://www.newsweek.com/2014/10/31/bloomingburg- jewish-catskills-new-york-hasidic-276230.html. 409 See id. 410 See id. 411 See id. 412 See id. 413 See id. 414 See id. 415 See id. 416 New Satmar Village Like Kiryas Joel to be Located in Bloomingburg, NY, FAILED MESSIAH (Sept. 17, 2013), http://failedmessiah.typepad.com/failed_messiahcom/2013/09/new- satmar-village-to-be-located-in-bloomingburg-ny-345.html. 417 See, e.g., id. (inferring that because Kiryas Joel is under the control of Kiryas Joel Satmar Rebbe Aharon Teitelbaum, the Village of Yatev Lev, under the control of the Williamsburg Satmar Rebbe Zalman Teitelbaum, will have a similar name change). 418 See Uriel Heilman, A Shtetl Grows in Upstate New York Town of Bloomingburg, FORWARD (May 23, 2015), http://forward.com/news/breaking-news/308762/a-shtetl-grows-in- upstate-new-york-town-of-bloomingburg/. 419 See, e.g., Bekiempis, supra note 408; Heilman, supra note 418. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
2016/2017] The Chassidic Impact on Local Government 1435 applying its land use regulations, the developer sued it and the town in federal court.420 Since 1961, thirty-eight villages have been dissolved in New York State.421 Only six of these were south of the state capital in Albany: Amchir (1968), an Orange County village for only four years; Pelham (1975) and North Pelham (1975) in Westchester County; Rosendale (1979) and Pine Hill (1985) in Ulster County; and Pine Valley (1990) in Suffolk County.422 The New York Government Reorganization and Citizen Empowerment Act was passed in 2009 at the initiative of then-Attorney General Andrew Cuomo to ease and encourage the reduction in the number of New York local governments, principally through village dissolution.423 After Cuomo became Governor, considerable financial incentives were offered to further encourage the reduction in the number of New York local governments.424 Nonetheless, of the twenty-five villages in which a dissolution referendum was held between 2010 and 2015, the option was rejected in eighty percent.425 New Yorkers are disposed to retain their villages. Yet, with the number of proposed Chestnut Hill units increasing by approximately 217% and Chassidic families already moving into the units, long-term Bloomingburg residents chose to try to sacrifice their village.426 They organized in a rural community coalition, and with the examples in the region of East Ramapo and Monroe before them, they forced a vote for their village’s dissolution on September 30, 2014.427 The question was hotly contested by newly arrived
420 Stewart Ain, Bloomingburg Tensions Now Affecting Gov’t, JEWISH WK. MEDIA GROUP (May 12, 2015), http://www.thejewishweek.com/news/new-york/bloomingburg-tensions-now- affecting-govt. 421 See Villages Dissolved & Incorporated, supra note 53. 422 See id. 423 See ANDREW M. CUOMO, N.Y. STATE DEP’T OF STATE, THE NEW N.Y. GOVERNMENT REORGANIZATION AND CITIZEN EMPOWERMENT ACT: A SUMMARY OF THE PROCESS FOR CONSOLIDATION AND DISSOLUTION 1 (2009), http://www.dos.ny.gov/lg/publications/ ConsolidationDissolutionProcedures-summary.pdf; Lisa K. Parshall, The Durability and Dissolution of Village Government in New York State: The Non-Empowering Empowerment Act 2 (2015) (Paper Prepared for Presentation at the 69th Annual Meeting of the N.Y. State Political Science Ass’n), http://www.bgnycitizenscommittee.com/files/NYSPSA_2015_ March_28_Full_Draft_Parshall.pdf. 424 See Parshall, supra note 423, at 3, 4; Governor Cuomo Announces Funding to Help Local Governments Streamline Services, N.Y. ST. (Apr. 28, 2014), https://www.governor.ny.gov/ news/governor-cuomo-announces-funding-help-local-governments-streamline-services. 425 See Parshall, supra note 423, at 5. 426 See Bekiempis, supra note 408. 427 See id.; Steve Israel, Sept. 30 Vote Set: Bloomingburg Looks to Dissolve, TIMES HERALD: REC., http://www.recordonline.com/article/20140725/NEWS/407250336 (last updated July 25, 2014). THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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Chassidic community members.428 Dissolution advocates challenged 190 registrations; many were found by the Sullivan County Board of Elections to be of persons who never lived in the village or no longer lived there.429 Nonetheless, Judge Stephan Schick, who had the board’s actions under review, allowed the certification in December of an outcome that blocked dissolution by a vote of 107 against 85 in favor.430 Sullivan County later accepted a federal monitor as part of a consent decree to settle a class action suit arising from this contest alleging religious discrimination in election administration.431 The following April, Andrew Rainer, a Chassidic candidate, defeated incumbent Katherine Roemer for a seat on the Bloomingburg village board by a vote of 98 to 91.432 Before the vote in February, the county board of elections had invalidated 184 registrations, most of them of Chassidic persons.433 Judge Shick restored twenty-four of these, which Roemer said, provided the margin of victory to her opponent.434
G. Battling for Power: The Town of Monroe In 2013, the population of Kiryas Joel already comprised a majority in the Town of Monroe (which also had some Chassidic residents living within it but outside the village).435 There were 20,671 active registered voters in Monroe in that year; of these, 42.2% were in election districts within Kiryas Joel.436 An additional 19,663 future Satmar Chassidic residents were projected for
428 See Israel, supra note 427 (discussing the challenges of new voters that disagreed with the action). 429 See Shmarya Rosenberg, Bloomingburg Votes Against Dissolution Paving Way for Satmar Takeover of Tiny Village, FAILED MESSIAH (Dec. 21, 2014), http://failedmessi ah.typepad.com/failed_messiahcom/2014/12/bloomingburg-votes-against-dissolution-paving-w ay-for-satmar-takeover-of-tiny-village-123.html. 430 See Andrew Beam, Bloomingburg Votes Not to Dissolve, TIMES HERALD: REC., http:// www.recordonline.com/article/20141219/News/141219315 (last updated Dec. 20, 2014). 431 See Mark Hamblett, Monitor Accepted by County in Hasidim Voting Rights Suit, N.Y.L.J., Feb. 3, 2016. 432 See Jacob Kornbluh, BOE Declares Rabiner Winner in Bloomingburg Board of Trustee Election, JPUPDATES (Apr. 1, 2015), http://jpupdates.com/2015/04/01/rabiner-formally- announced-winner-in-bloominburg-board-of-trustee-election/. 433 See id. 434 See id. 435 See POPULATION TRENDS, supra note 66, at 13. 436 N.Y. STATE BD. OF ELECTIONS, NYS VOTER ENROLLMENT BY ELECTION DISTRICT, PARTY AFFILIATION AND STATUS 17–22 (2013) [hereinafter NYS VOTER ENROLLMENT], http://www.elections.ny.gov/nysboe/Enrollment/election%20district/2013/November/OrangeE D_nov13.pdf. In addition, there are a relatively small number of Chassidic voters residing outside the village. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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Monroe by 2025 in the environmental impact statement linked to the village’s 2015 annexation proposal.437 Demographic trends assured that Chassidic voters would shortly become a majority of the town’s electorate. To counteract the growing Chassidic influence on town elections, and with the pendency of action on the Kiryas Joel annexation initiative, United Monroe was organized in 2013.438 The initial goal of this organization was frankly political: “[T]o replace the [three] Town Board members who were up for election in November 2013 since the sitting Board was clearly not representing all of the people of Monroe, but instead, were representing the voting bloc in Kiryas Joel who elected them.”439 United Monroe did an extraordinary job of political mobilization in 2013, but failed to dislodge the supervisor or town board put into office with Chassidic support.440 There were three possible reasons for this: Chassidic voters turn out in higher numbers than other voters;441 Chassidic voters are highly disciplined and they vote as a block;442 and Chassidic voters are deliverable and can be moved from one partisan side to another with alacrity.443 In sum, as former Congressman Steve Israel noted when he was Chair of the House Democratic Congressional Campaign Committee, the Village of Kiryas Joel “wields . . . voting power like an electoral sledgehammer.”444 Overall turnout in the 2013 Monroe town election was approximately 67%—extraordinary for an off year in New York State.445 For those election districts within Kiryas Joel, turnout was 77%, and in the town outside that village it was 57%.446 A
437 GARDNER & ROUND, supra note 28, at 16. Some comments on this proposal disputed the projection as understated. 438 Cathryn J. Prince, Fierce Protest against Satmar Annexation of N.Y. Town, TIMES OF ISR. (Oct. 8, 2015), http://www.timesofisrael.com/fierce-protest-against-satmar-annexation-of- ny-town/. 439 About Us, UNITED MONROE, http://unitedmonroe.org/about-us/ (last visited Sept. 21, 2017). 440 See Easley, supra note 291. 441 See, e.g., Wallace-Wells, supra note 4. 442 See John Kifner, Birth of a Voting Bloc: The Hasidim and Orthodox Organize, N.Y. TIMES (May 2, 1989), http://www.nytimes.com/1989/05/02/nyregion/birth-of-a-voting-bloc-the- hasidim-and-orthodox-organize.html?pagewanted=all; Wallace-Wells, supra note 4. 443 See Andrea Stone, Orthodox Jewish Voters Courted by GOP Presidential Field, HUFFINGTON POST (Dec. 15, 2011), http://www.huffingtonpost.com/2011/12/15/orthodox- jewish-vote-republican-presidential-candidates_n_1148193.html. 444 GRUMET & CAHER, supra note 21, at 57. 445 See Easley, supra note 291. 446 See id. In 2013, two districts—18 and 19—had both Chassidic and non-Chassidic residents. They are not included in parts of this analysis. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
1438 Albany Law Review [Vol. 80.4 remarkable 88.3% of voters in non-Chassidic election districts voted for the United Monroe-backed candidate for supervisor, Emily Convers.447 But an even more remarkable 96.3% of Kiryas Joel voters backed the winning Democrat, Harley Doles.448
Figure 5449
Monroe Town Supervisor - 2013
Turnout Cohesion
KJ EDs 77% 96.10%
Non- Chassidic Eds 59.90% 89.30%
Mixed Eds 44.70% 67.70%
KJ Eds - 20-34 Non Chassidic Eds 1-17 Mixed EDs 18 & 19 Cohesion: % ofvote for line with most votes ED 35 not included (45 registered, 18 voters)
On the same election day that Kiryas Joel village voters delivered 6,430 votes to Doles, the Democrat for Monroe Town Supervisor, they delivered 6,480 for Steve Neuhaus, the Republican running for County Executive.450 Interestingly, only about a third of these (2,126) were cast on the Republican line; most were recorded on the Independence line (4,228) with a few more on the Conservative line (126).451
447 See ORANGE CTY. BD. OF ELECTIONS, GENERAL ELECTION: 11/05/2013, MONROE TOWN SUPERVISOR 16–17 (2013), http://www.orangecountygov.com/filestorage/124/126/1240/14269/ 15066/County_Executive.PDF [hereinafter 2013 GENERAL ELECTION: MONROE TOWN SUPERVISOR]. 448 See id. 449 Calculated by the author. 450 See id. at 16–17; ORANGE CTY. BD. OF ELECTIONS, GENERAL ELECTION: 11/5/2013, COUNTY EXECUTIVE 7–8 (2013), http://www.orangecountygov.com/filestorage/124/126/1240/ 14269/15066/County_Executive.PDF [hereinafter 2013 GENERAL ELECTION: COUNTY EXECUTIVE]. 451 See 2013 GENERAL ELECTION: COUNTY EXECUTIVE, supra note 450, at 7–8. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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The effect of this bloc vote must be multiplied by two to really understand its power, because moving the votes not only subtracts from one candidate’s total, but it also adds to the total of his or her opponent. Neuhaus gathered 39,484 votes on three lines in his race for county executive; his Democrat opponent, Roxanne Donnery, received a total of 30,860.452 If the votes delivered in the Village of Kiryas Joel (and remember—there are Chassidic voters living outside the village, as well) were moved to Donnery from Neuhaus, the outcome would have been Neuhaus: 33,004, Donnery: 37,340.453 That is, Kiryas Joel, with about nine percent of the total vote, provided the margin of victory in that contested countywide race.454 For a politician, this focuses the mind. Chassidic voters are enrolled in all parties.455 This allows for a potential impact not only on who is elected, but on who is nominated. The practice is the same: bloc voting and deliverability. Ideology is irrelevant; so are broad-ranging issues; so is partisanship. The driving consideration is what the Chassidic community’s religious leadership determines to be in its best interests.
H. Fissures in Monroe: Is the Chassidic Bloc Voting Different? The delivery of the vote in Kiryas Joel is not different in type than that done by classic political machines.456 People have been induced to trade their votes for material benefits, actual or promised.457 Issues have been irrelevant.458 But it appears to be far more sophisticated, targeted, and subtle in Kiryas Joel. Patronage is still with us; so is political corruption. But old- fashioned vote-delivering machines of this type diminished in their power as they were confronted by powerful alternative ideas about
452 See id. at 18. 453 See id. at 7–8, 18. 454 See id. 455 Richard Baehr, The Jewish Vote, One More Time, AM. THINKER (Nov. 20, 2009), http://www.americanthinker.com/articles/2009/11/the_jewish_vote_one_more_time.html. 456 See Lou Grumet & Justin JaMail, The Lessons of Kiryas Joel, 83 N.Y. ST. B. J. 19, 12 (2011) (providing evidence that Kiryas Joel is just one of several bloc-voting groups in New York City); Rick Su, Symposium, Noncitizen Participation in the American Polity: Urban Politics and the Assimilation of Immigrant Voters, 21 WM. & MARY BILL OF RTS. J. 653, 668– 69 (2012). 457 See, e.g., Ben Friedman, Congress: Stop Kiryas Joel Bloc Vote Abuse, CHANGE.ORG, https://www.change.org/p/congress-stop-kiryas-joel-bloc-vote-abuse (last visited Sept. 22, 2017). 458 See, e.g., id. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
1440 Albany Law Review [Vol. 80.4 citizenship and about how the vote should be valued and used.459 The machines also declined as a result of a changed social and economic environment. Chassidic machine politics are not driven by personal gain or advantage; rather, it is just another tool used to achieve communal benefits.460 And in the case of the Chassidic political machines in the Hudson Valley, demographic realities and intra-communal social discipline suggest at first glance that their power will only grow.461 But maybe not. In the early history of Kiryas Joel, politics was so monolithic that the Satmar Rebbe Joel Tannebaum was known to “nullify” the outcome of an election if it was not to his liking.462 Rebbe Tennebaum did not have a son,463 so after his death in 1979, a dispute arose over succession.464 There was considerable discontent in Kiryas Joel when, after the Rebbe’s nephew Moshe Teitelbaum of Brooklyn was named to follow him, he in turn named his son Aaron as head of the community.465 Difference spilled over into village politics. In 2001, Kiryas Joel had its first contested election in its twenty-four year history.466 In its wake, the Times Herald Record, the leading local daily paper, investigated and found: thirteen votes by residents of Williamsburg; eight by persons not yet eighteen years old; one by a resident of Woodbury; two by people who didn’t reside in the United States; and one who was apparently non-existent.467 A grand jury that convened in Orange County concluded that registration and voting irregularities took place and “may have had a serious and deleterious impact on the integrity of the election system” within the Village of Kiryas Joel.468
459 See, e.g., Saul Levmore, Precommitment Politics, 82 VA. L. REV. 567, 601 (1996) (discussing the benefits and successes that the residents of Kiryas Joel have had voting as a bloc to achieve the collective desires of their community). 460 See id. 461 See Chris McKenna, KJ Voting Instructions, FRAY (Nov. 7, 2013), http://blogs.hudson valley.com/fray/2013/11/07/kj-voting-instructions/ [hereinafter McKenna, KJ Voting Instructions]; Chris Rowley, Democracy’s New Dilemma: How Will We Cope with a Hasidic Influx?, SHAWANGUNK J. (July 9, 2015), www.gunkjournal.com/2015/07/09/news/1507092 .html. 462 See MINTZ, supra note 35, at 211. 463 See id. at 127. 464 See id. at 210. 465 See id. at 127, 210. 466 Chris McKenna, Voter Fraud Found in Kiryas Joel Mayoral Election, TIMES HERALD: REC., http://www.recordonline.com/article/20010717/NEWS/307179999 (last updated Dec. 15, 2010) [hereinafter McKenna, KJ Voter Fraud]. 467 See id. Under federal law, citizens living outside the country can vote in federal elections but not in state or local ones. Id. 468 McKenna, Kiryas Joel Voting Machine, supra note 120. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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Voter intimidation was also alleged. Voting booths were located in Kiryas Joel’s main synagogue, where dissidents were not welcome.469 Following allegations that leaders of Kiryas Joel’s dominant faction compiled a list of persons who voted for dissents in a 1990 school board election, some residents, citing “religious terror” at the polls as their reason, began voting by absentee ballot.470 In 1997, Orange County Elections Commissioner Susan Bahren expressed fear of a “probability of violence” arising from this situation.471 After efforts by the Democratic minority in the Orange County legislature to address the matter were blocked, it was taken to the courts.472 Federal District Court Judge Parker ruled that failure to relocate the polling place would cause a substantial deprivation of a fundamental constitutional right.473 As a result, it was moved to a local school a mile away.474 Organized as the Kiryas Joel Alliance, dissidents persisted as an alternative voice in both religious affairs and politics in the village.475 The 2014 election for the New York State Assembly in the 98th district was a three-way contest,476 and there was no incumbent.477 Democrat Elisa Tutini had the Working Family endorsement.478 Republican Karl Brabenec was endorsed by both the Conservative and Independence Parties.479 And United Monroe ran Daniel Castricone on its own ballot line.480 Backed by the Alliance, Brabenec won with a total of 12,943 votes.481 Tutini had
469 See AMY GUTMANN, IDENTITY IN DEMOCRACY 189 (2003); Samaha, supra note 104. 470 See GUTMANN, supra note 469, at 189. 471 See Mike Levine, Battered Dissidents’ Plea to Vote is Finally Heard, TIMES HERALD: REC. (Jan. 16, 2007), http://www.recordonline.com/article/20070116/news/70116054; Chris McKenna, Kiryas Joel Polls Stay at Medical Center, TIMES HERALD: REC., http://www.record online.com/article/20020627/news/306279993 (last updated Dec. 15, 2010) [hereinafter McKenna, Kiryas Joel Polls]. 472 See Waldman v. Village of Kiryas Joel, 39 F. Supp. 2d 370, 373 (S.D.N.Y. 1999). 473 See id. 474 See McKenna, Kiryas Joel Polls, supra note 471. 475 See, e.g., Chris McKenna, Kiryas Joel Group Calls for “Mutual Respect” after Monroe Election, TIMES HERALD: REC., http://www.recordonline.com/article/20151104/NEWS/ 151109736 (last updated Nov. 5, 2015) [hereinafter McKenna, KJ Monroe Election] (quoting board members of the Kiryas Joel Alliance’s statements on political candidates). 476 See N.Y. STATE BD. OF ELECTIONS, NYS BOARD OF ELECTIONS ASSEMBLY ELECTION RETURNS NOVEMBER 4, 2014, at 21 (2014), https://www.elections.ny.gov/NYSBOE/elections /2014/general/2014Assembly.pdf [hereinafter 2014 ASSEMBLY ELECTION RETURNS]. 477 Election 2014: New York State Results, N.Y. DAILY NEWS (Nov. 4, 2014), http://www.ny dailynews.com/news/politics/election-2014-new-york-state-results-article-1.1999445. 478 2014 ASSEMBLY ELECTION RETURNS, supra note 476, at 21. 479 Id. 480 Id. 481 Id. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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12,906 and Castricone garnered 9,118.482 The vote in Kiryas Joel, almost all on third party lines, was 4,125 for Tutini and 1,975 for Brabenec.483 Even though he was not preferred by Kiryas Joel leadership, the votes that the Alliance provided were the margin of victory that assured Brabenec’s election over Tutini in this three- way race.484 In the same election year, and even more significant, because of the priority given Kiryas Joel leadership to controlling local office, the Alliance joined with United Monroe in backing Dennis McWatters for a vacant seat on the Monroe town board.485 The Democrat Blanca Johnson was endorsed by village leadership.486 Perhaps as a result of this internal conflict, turnout was significantly lower in Kiryas Joel than in 2013.487 The 1,860 votes that he received in Kiryas Joel election districts (thirty-one percent of the village vote) were decisive for McWatters’ election.488 He was later the only vote against annexation of additional territory to the Village of Kiryas Joel on the Monroe Town Board.489 In 2015, the Alliance published a full-page advertisement in the Times Herald Record defending against charges of anti-Semitism a number of county and state elected officials who were opposed to annexation of additional land to the village.490 Two seats for the board were being contested at the time. United Monroe supported Anthony Cardone and Michael McGinn, who were also the Republican candidates.491 The Democrats nominated only one
482 Id. 483 2014 GENERAL ELECTION: 98TH ASSEMBLY DISTRICT, supra note 324, at 2–3. 484 See id. (providing evidence that the votes that Brabenec received in Kiryas Joel were significantly more than those received by other candidates). 485 Chris McKenna, KJ Backs McWatters for Vacant Monroe Seat, FRAY (Aug. 18, 2014), http://blogs.hudsonvalley.com/fray/2014/08/18/kj-backs-mcwatters-for-vacant-monroe-seat/ [hereinafter McKenna, KJ Backs McWatters]. 486 See Chris McKenna, KJ Blocs Split on Assembly, Town Board, FRAY (Nov. 4, 2014), http://blogs.hudsonvalley.com/fray/2014/11/04/kj-blocs-split-on-assembly-town-board/ [hereinafter McKenna, KJ Blocs Split]. 487 Compare 2014 GENERAL ELECTION: MONROE COUNCILMAN, supra note 326, at 1–2, with ORANGE CTY. BD. OF ELECTIONS, GENERAL ELECTION: 11/05/2013, MONROE TOWN COUNCILMAN 20–21 (2013), http://www.orangecountygov.com/filestorage/124/126/1240/1426 9/15066/GE13_-_Monroe.PDF [hereinafter 2013 GENERAL ELECTION: MONROE COUNCILMAN] (comparing the 2013 turnout with the 2014 turnout in Orange county). 488 See 2014 GENERAL ELECTION: MONROE COUNCILMAN, supra note 326, at 1–2. 489 See McKenna, Monroe Board Approves Annexation, supra note 126. 490 See Chris McKenna, KJ Group Denounces Anti-Semitism Charges, TIMES HERALD: REC. (June 18, 2015), http://www.recordonline.com/article/20150618/NEWS/150619284 [hereinafter McKenna, KJ Denounces Anti-Semitism Charges]. 491 See Sandy Eller, Kiryas Joel, N.Y.—Winds of Change to Blow in Town of Monroe, VOS IZ NEIAS? (Nov. 04, 2015), http://www.vosizneias.com/219614/2015/11/04/kiryas-joel-ny-winds- of-change-to-blow-in-town-of-monroe/ [hereinafter Eller, Winds of Change]. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
2016/2017] The Chassidic Impact on Local Government 1443 candidate, incumbent Daniel Burke, who had voted in favor of annexation.492 Burke also had the Working Family backing and an Independent line.493 McWatters was on the ballot as an independent but did not actively campaign.494 The Alliance delivered about thirty-five percent of the votes cast in Kiryas Joel to Cardone and McGuinn, almost all of these not on the United Monroe but on the Republican line.495 This assured victories for Cardone and McGinn and denied Burke reelection.496 The vote in Kiryas Joel for Burke and McGuinn in 2015 for the town board tells the story of a persistent two-thirds to one-third vote split resulting from the religious-based schism within the Satmar community.497 Election district statistics in 2013 and 2015 are not fully comparable, as boundaries were changed by the county board of elections. But the total vote cast in the former year for Harley Doles when the community was politically united is remarkably similar to the combined vote cast for Burke and Cardone, each backed by a different faction.498 Additionally, the number of blank ballots cast confirms the size of the vote of the dominant faction; its adherents had only one candidate, though there were two seats to fill.499 This is still bloc voting. There is little evidence of ticket splitting, as there would be in a community with more conventional voting patterns.500 The temporary formation of two blocs, based upon an intra-community religious dispute, created the opportunity for coalition victories by United Monroe, which is itself delivering a
492 See Monroe Democrats Withdraw Endorsement of Councilman Dan Burke, SUBURBANITES (Oct. 27, 2015), http://www.suburbanites.com/news/monroe-democrats-with draw-endorsement-of-councilman-dan-burke/. 493 See ORANGE CTY. BD. OF ELECTIONS, GENERAL ELECTION: 11/03/2015, MONROE TOWN COUNCILMAN 4–5 (2015), http://www.orangecountygov.com/filestorage/124/126/1240/20711/ 21183/MONROE.PDF [hereinafter 2015 GENERAL ELECTION: MONROE COUNCILMAN]. 494 See Dennis McWatters Suspends His Campaign for Monroe Town Board, PHOTO NEWS (Oct. 14, 2015), http://www.thephoto-news.com/apps/pbcs.dll/article?AID=/20151014/OPIN ION03/151019978/0/EXPERTS32/Dennis-McWatters-suspends-his-campaign-for-Monroe-Tow n-Board/. 495 See 2015 GENERAL ELECTION: MONROE COUNCILMAN, supra note 493, at 4–5 (referring to the alliance as districts twenty through thirty-five). 496 See id. 497 See infra Table VI (showing a rough two-thirds to one-third split for Burke and McGinn in Kiryas Joel districts twenty through thirty-five). 498 See McKenna, Kiryas Joel Voting Machine, supra note 120; see infra Table VI, VII. 499 See infra Table VI. 500 See generally Drew DeSilver, Split-Ticket Districts, Once Common, are Now Rare, PEW RES. CTR. (Aug. 8, 2016), http://www.pewresearch.org/fact-tank/2016/08/08/split-ticket- districts-once-common-are-now-rare/ (discussing the split-ticket phenomenon in federal elections, noting its decline and possible reasons). THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
1444 Albany Law Review [Vol. 80.4 substantial bloc vote.501 But in light of compelling social, religious, and cultural realities, the two-bloc pattern has to be regarded as temporary.
Table VI.502 Monroe Town Board Election, 2015.
DEM REP REP WOR IND IND UNM UNM Void Blank
Burke Cardone McGinn Burke Burke McWatters Cardone McGinn
4575 3787 3728 17 40 177 4914 4916 3 4771
ED 20 393 94 95 0 1 3 0 0 402
21 325 109 111 1 1 4 1 1 331 22 185 183 179 0 1 0 0 0 202 23 192 191 186 0 2 2 2 2 201 24 211 105 106 1 0 2 0 0 215 25 184 2 3 0 0 2 0 0 181 26 253 241 238 0 0 2 2 1 271 27 258 154 157 0 1 1 0 0 271 28 465 125 125 0 2 7 0 0 470 29 357 204 203 0 1 3 1 1 376 30 213 175 176 0 0 1 1 0 218 31 266 173 171 0 0 2 2 2 272 32 238 151 154 1 5 7 2 2 236 33 311 107 109 3 2 1 1 1 321 34 241 215 215 1 1 1 1 2 257 35 292 237 239 1 2 3 1 1 304
3991 2466 2467 8 19 41 14 13 0 4528
501 See Sandy Eller, Monroe, N.Y.—Big Win for United Monroe in Town Council Elections, VOS IZ NEIAS? (Nov. 03, 2015), http://www.vosizneias.com/219469/2015/11/03/monroe-ny-big- win-for-united-monroe-in-town-council-elections; About Us, supra note 439; Eller, Winds of Change, supra note 491. 502 2015 GENERAL ELECTION: MONROE COUNCILMAN, supra note 493, at 4–5; see infra Figure 6 (showing districts twenty through thirty-five as Kiryas Joel districts). THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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Table VII.503 Kiryas Joel Election Districts in Monroe Town Election: United in 2013, Divided in 2015.
ED 2013 2015 2015 2015 2015 D - Doles D - Burke R - Cardone R - McGinn D+R 20 577 393 94 95 582 21 255 325 109 111 545 22 360 185 183 179 547 23 380 192 191 186 569 24 328 211 105 106 422 25 207 184 2 3 189 26 823 253 241 238 732 27 416 258 154 157 569 28 405 465 125 125 715 29 303 357 204 203 764 30 312 213 175 176 564 31 417 266 173 171 610 32 392 238 151 154 543 33 628 311 107 109 527 34 592 241 215 215 671 35 12 292 237 239 768
6407 4384 2466 2467 9317
503 See 2013 GENERAL ELECTION: MONROE TOWN SUPERVISOR, supra note 447, at 16–17; 2015 GENERAL ELECTION: MONROE COUNCILMAN, supra note 493, at 4–5. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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Table VIII.504 Kiryas Joel Assembly Vote, 2014. Elisa Karl Karl Elisa Tutini Karl Tutini Brabenec Brabenec Brabenec Monroe Whole ED Vote DEM REP CON WOR IND 20 480 5 4 0 385 76 21 387 3 3 3 293 79 22 321 2 5 0 175 133 23 341 6 4 1 180 148 24 320 5 3 3 213 90 25 158 2 3 0 150 1 26 423 3 3 2 236 167 27 401 2 2 6 263 117 28 492 2 1 1 385 93 29 496 4 2 0 307 169 30 323 3 2 4 191 121 31 397 2 4 0 246 142 32 370 6 1 2 232 122 33 429 3 4 0 319 93 34 430 7 3 1 222 176 35 468 1 2 2 272 177
6236 56 46 25 4069 1904
Daniel Castricone: United Monroe got 5,444 votes in the town, but only 26 in these EDs
504 2014 GENERAL ELECTION: 98TH ASSEMBLY DISTRICT, supra note 324, at 2–3. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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Figure 6505
505 Source on file with the author. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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VI. CHASSIDIC STATE-LEVEL INFLUENCE: HOME RULE MANQUÉ Shifting the arena of conflict is a time-honored tactic in politics: losers in one jurisdiction, institution, or level of government, seek another in which they may win. Bloc voting local majorities often fare far less well in bigger, or diverse, jurisdictions where their strength is diluted.506 State Assembly districts in New York include about 130,000 people.507 State Senate districts include about 310,000 people.508 Rockland County’s population is 326,037.509 Orange County’s population is 377,647.510 Adversaries of the Chassidic community in Rockland and Orange Counties who could not prevail at the town or school district levels had reason to believe that they might do better with county or state government.511 One county level example: a 1975 state law requires an assessment of the environmental impact of any proposed annexation of territory to a village or city.512 After the New York State Department of Environmental Conservation named the Village of Kiryas Joel as the lead jurisdiction for assessing this impact for the most recent annexation it sought, Orange County Executive Steve Neuhaus, who had received the village’s bloc vote in 2013, led the Orange County effort to hire a consultant to analyze and hold accountable the village’s performance of this role.513 For their part, state legislators representing Orange and Rockland Counties showed a clear willingness to differ with Chassidic communities’ priorities.514 The 2015 East Ramapo School
506 See JOANNA E. CUEVAS, UNITY MAPS, CENSUS 2020, LATINX COMMUNITIES, & VOTING RIGHTS IN AN ELECTION YEAR 29 (2016), https://conference2016.aabany.org/wp- content/uploads/2016/09/3L-Voting-Rights-1.pdf. 507 New York State Legislature: Assembly, BALLOTPEDIA, https://ballotpedia.org/New_York_ State_Legislature (last visited Sept. 27, 2017). 508 New York State Senate, BALLOTPEDIA, https://ballotpedia.org/New_York_State_Senate (last visited Sept. 27, 2017). 509 Rockland County, N.Y., DATA USA, https://datausa.io/profile/geo/rockland-county-ny/ (last visited Sept. 27, 2017). 510 Orange County, N.Y., DATA USA, https://datausa.io/profile/geo/orange-county-ny/ (last visited Sept. 27, 2017). 511 See Jessica Chen, Kiryas Joel “Annex Bills” Pass Assembly, Head to State Senate, SPECTRUM NEWS: HUDSON VALLEY (June 9, 2015), http://www.twcnews.com/nys/hudson- valley/news/2015/06/9/-annex-bills—passes-assembly—headed-to-senate.html. 512 See N.Y. ENVTL. CONSERV. LAW § 8-0109 (McKinney 2017). 513 See News Release, Office of the Cty. Exec., Orange Cty., Orange County Hires Center for Governmental Research (CGR) to Study Impact of Proposed 507-Acre Annexation by Kiryas Joel (May 22, 2015), http://www.orangecountygov.com/filestorage/124/898/2483/21502/ 11877/05-2215_OC_Hires_Center_for_Governmental_Research_to_Study_Impact_of_Propose d_507-acre_annexation_by_Kiryas_Joel.pdf. 514 See id. (stating that Orange County hired its own investigators to research the THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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District special master bill was sponsored by the local Assemblymember Ellen Jaffee of Pearl River and Senator David Carlucci of Clarkstown, both in Rockland County.515 The bill regarding Kiryas Joel annexation was advanced by Assemblymember James Skoufis of Chester and Senator Bill Larkin of New Windsor, both in Orange County.516 All four legislators could reasonably expect deference from their chamber’s majority.517 Three were majority members: Jaffee and Skoufis in the Assembly, Larkin in the Senate.518 David Carlucci is a Democrat, but was part of the Senate’s Independent Democratic Conference, politically aligned in 2015 with the Republican Majority.519 The home rule article of the New York State Constitution requires that the state legislature act only by general law with regard to local government.520 It may pass a law that affects a single locality only when requested to do so by an extraordinary majority of its legislature, or by its executive and a legislative majority, or (except for New York City) with two-thirds majority in both state legislative houses “on certificate of necessity from the Governor reciting facts which in the judgment of the Governor constitute an emergency requiring enactment of such law.”521 But the state legislature routinely bypasses this limitation by passing laws that are general in language but specific in effect—a practice
annexation of Kiryas Joel over the opposition of the Chassidic community in that region). 515 Joseph Spector, Assembly Dems Reject E. Ramapo Oversight Bill, LOHUD (June 17, 2015), http://www.lohud.com/story/news/education/2015/06/16/east-ramapo-monitor-bill/2882 6697/. 516 Nick Reisman, Cuomo Vetoes KJ Annexation Bills, ST. POLS. (July 8, 2015), http:// www.nystateofpolitics.com/2015/07/cuomo-vetoes-kj-annexation-bills/. 517 See, e.g., Wesley Lowery, How Congress Became So Partisan, in Four Charts, WASH. POST (Apr. 14, 2014), https://www.washingtonpost.com/news/the-fix/wp/2014/04/14/how- congress-became-more-partisan-over-time-in-four-charts/ (explaining that legislators very often vote according to party lines, as demonstrated in Congress). 518 See Jesse McKinley, In Rebuke to Democrats, Voters Return Control of New York Senate to G.O.P., N.Y. TIMES (Nov. 5, 2014), http://www.nytimes.com/2014/011/05/nyregion/with- early-results-republicans-hover-close-to-control-of-new-york-senate.html (asserting that Democrats control the Assembly, while Republicans gained control of the Senate); see also Michael Castelluccio, Vote Primary Election Tuesday Sept. 13, PRESERVE RAMAPO (Sept. 7, 2016), http://preserve-ramapo.com/vote-primary-election-Tuesday-sept-13/ (showing Democrat Ellen Jaffee as the 97th Assembly District representative); Nick Reisman, Cuomo Vetoes KJ Annexation Legislation, ST. POLS. (Sept. 30, 2016), http://www.nystateof politics.com/2016/09/cuomo-veotes-kj-annexation-legislation/ (providing evidence of Skoufis’s and Larkin’s political ties in the democratic Assembly and republican Senate, respectively). 519 David Howard King, 2016: A Far Different Election Year for Independent Democrats, GOTHAM GAZETTE (July 26, 2016), http://www.gothamgazette.com/index.php/state/6454-2016- a-far-different-election-year-for-independent-democrats. 520 See N.Y. CONST. art. IX, § 2. 521 Id. § 2(b)(2). THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
1450 Albany Law Review [Vol. 80.4 that the courts have frequently upheld.522 The bill sent to Governor Cuomo by Skoufis and Larkin was an attempt for a decision at the state level—itself an arena shift—to incrementally enhance county power in one narrowly defined area of land use decision-making.523 Power over land use in New York State is centered in cities, towns, and villages; the county’s role is limited largely to review and oversight.524 However, existing general municipal law did give county planning boards the power to require localities within them to marshal special majorities to approve development proposals that affect county roads.525 The Skoufis/Larkin bill sought to extend the requirement for special majorities to any “annexation that would potentially require county or county agency approval . . . to provide water or sewer service in the area to be annexed, or . . . for the annexing municipality to provide water or sewer service in the area to be annexed.”526 This reached Kiryas Joel because it receives sewer services from Orange County.527 In fact, as earlier noted, the extent of this service was disputed for years, until a settlement was reached in 2010.528 Usually when acting upon a local matter, each house of the state legislature defers to the members in which the affected locality is located, especially if that legislator is in the majority.529 But not with regard to East Ramapo and Kiryas Joel. The Hudson Valley Chassidic communities have “big brothers” downstate, especially in Brooklyn.530 For both Cuomo and Flanagan, the state-level politics
522 See, e.g., Patrolmen’s Benevolent Ass’n of N.Y., Inc. v. City of New York, 767 N.E.2d 116, 121–22 (N.Y. 2001). 523 See Assemb. B. 7639, 238th Reg. Sess. (N.Y. 2015); see also Chen, supra note 511 (discussing that the bill would have allowed the county to review annexations and offer recommendations). 524 See Jeff LeJava, Comment, The Role of County Government in the New York State Land Use System, 18 PACE L. REV. 311, 313, 324–25 (1998). 525 See N.Y. GEN. MUN. LAW § 239-m (McKinney 2017). 526 N.Y. Assemb. B. 7639. 527 See Chris McKenna, Orange County Begins Sewer-Expansion Study that Keys Kiryas Joel Expansion, TIMES HERALD: REC. (June 8, 2015), http://www.recordonline.com/article /20150608/NEWS/150609484 [hereinafter McKenna, Sewer-Expansion Study] (discussing Kiryas Joel annexation proposals that would be effected by the Larkin/Skoufis bill). 528 See Chris McKenna, Orange Promises More Sewer Service for Kiryas Joel, TIMES HERALD: REC. (Feb. 21, 2010), http://www.recordonline.com/article/20100221/News/10022 9993 [hereinafter McKenna, More Sewer Services]; McKenna, Sewer-Expansion Study, supra note 527; Chris McKenna, Suit Challenges Orange County, Kiryas Joel Settlement, TIMES HERALD: REC. (June 11, 2010), http://www.recordonline.com/article/20100611 /News/6110357 [hereinafter McKenna, KJ Settlement]. 529 See Kenneth Lovett, Heastie Knocks Plan for Upstate-Focused Caucus, N.Y. DAILY NEWS (Sept. 5, 2016), http://www.nydailynews.com/new-york/lovett-heastie-knocks-plan-upstate- focused-caucus-article-1.2777841. 530 See Mahoney, supra note 116 (providing evidence of money flowing from Kiryas Joel to THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
2016/2017] The Chassidic Impact on Local Government 1451 embedded in decisions about East Ramapo and Kiryas Joel involve statewide calculations about deliverable votes, institutional control, and campaign finance.531 Agudath Israel of America, the Orthodox state-level umbrella organization, was able to redefine what was at stake, making the issues not purely local, but rather, test cases of state leaders’ responsiveness for past backing and as potentially determinative of future support.532 As Louis Grumet and John Caher noted, Chassidic communities are very focused on deliverable outcomes in determining whom to back: “[They] rarely concern themselves with the politician’s ethical or legal positions. What they want are specific dollars-and-cents services, not philosophical or spiritual accord. They remember the politicians who deliver and, just as strongly, don’t forget those who don’t.”533 Bloc voting counts at the statewide level too. In his unexpectedly modest reelection victory in 2014, Andrew Cuomo won overwhelmingly in Chassidic neighborhoods in Brooklyn.534 The Satmars in Monroe made their measurable contribution in that year by delivering lockstep support for the Governor not on the Democrat, but on the Independence Party, line.535 Governor Cuomo’s veto message on the Skoufis/Larkin bill suggested that it was flawed because the New York Constitution also provides that “[t]he consent of the governing board of a county [for an annexation] shall be required only where a boundary of the county is affected.”536 This explanation was disingenuous. The law vetoed by the Governor clearly did not require county consent for a powerful government figures in New York City). 531 See Chris McKenna, KJ Interests Donate $250K to Cuomo Days after Veto of Annexation Bills, TIMES HERALD: REC., http://www.recordonline.com/article/20150717/NEWS/150719420 (last updated July 17, 2015) [hereinafter McKenna, KJ Interests Donate]; see also Holly Kellum, Cuomo Vetoes Annexation Oversight Bill, EPOCH TIMES, http://www.the epochtimes.com/n3/2165428-cuomo-vetoes-annexation-oversight-bill/ (last updated Oct. 5, 2016) (including a response from Assemblyman James Skoufis, stating that he believed Governor Cuomo’s decision to veto the bill was politically driven); Klopott, supra note 290. 532 See Crying Out for a Veto, HAMODIA (June 30, 2015), http://hamodia.com /2015/06/30/crying-out-for-a-veto/; NY Governor Vetoes Bill to Block Haredi Annexation of Land, JERUSALEM POST, http://www.jpost.com/Diaspora/NY-governor-vetoes-bill-to-block- haredi-annexation-of-land-408738 (last visited Sept. 27, 2017). 533 GRUMET & CAHER, supra note 21, at 82. 534 See generally 2014 New York Governor Election Results, POLITICO, http://www.politico .com/2014-election/results/map/governor/new-york/ (last updated Dec. 17, 2014) (showing the extraordinary number of votes that Andrew Cuomo received in Brooklyn County in the 2014 election). 535 See 2014 GENERAL ELECTION: GOVERNOR, supra note 319, at 12. 536 N.Y. CONST. art. IX, § 1; see VETO MEMORANDUM NO. 185, Assemb. B. 7629, 238th Reg. Sess. (N.Y. 2015). THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
1452 Albany Law Review [Vol. 80.4 proposed annexation.537 A week after Governor Cuomo’s veto of the bill designed to make Kiryas Joel’s annexation goal more difficult to achieve, a press report indicated that campaign contributions were made to him totaling $250,000 by a network of limited liability companies tied to a Kiryas Joel developer.538 The proposal to appoint a special monitor with veto power over the East Ramapo school board led to a highly unusual, passionate three-hour floor debate in the Assembly.539 Race and anti-Semitism were key themes. Democrat Assemblyman Mathew Titone of Staten Island summed up: “I don’t appreciate the possibility that if I vote yes, I may be called an anti-Semite . . . [and i]f I vote no, I’m racist.”540 The final vote did not reflect the usual disciplined unanimity within the majority and minority conferences. With the support of all but a few Black and Hispanic members, the measure passed by a vote of 80-60.541 Five of those voting “yes” were Republicans.542 Twenty-four Assembly Democrats were no votes.543 The majority conference produced only eighty affirmative votes, four more than the bare majority needed for passage.544 Assembly minority Republicans justified their opposition to the bill as required by their commitment to local democracy and control to schools.545 The primacy of local self-rule was the reason given by their co-partisan Senate Majority Leader, Flanagan, for his refusal to allow a floor vote on the measure in his house.546 “When we move in any way, shape, or form to usurp local control, we have to be extraordinarily judicious,”547 he said. “It’s a duly elected school board. That’s why we have elections. That’s why we have a democracy.”548 Drawing upon his experience as former Chair of the
537 See Assemb. B. 7629, 238th Reg. Sess. (N.Y. 2015). 538 See Mahoney, supra note 116. 539 See Jessica Bakeman, East Ramapo Debate Splits Assembly Along Religious, Racial Lines, POLITICO (June 11, 2015), http://www.politico.com/states/new-york/albany/story/ 2015/06/east-ramapo-debate-splits-assembly-along-religious-racial-lines-022982. 540 Id. 541 Id.; see VOTING RECORD, Assemb. B. 5355, 238th Reg. Sess. (N.Y. 2015). 542 See id. 543 Id. 544 Id.; see Bakeman, supra note 539. 545 See, e.g., Nick Reisman, Flanagan Urges Caution in East Ramapo Oversight, ST. POLS. (Sept. 8, 2015), http://www.nystateofpolitics.com/2015/09/flanagan-urges-caution-in-east- ramapo-oversight/. 546 See id. 547 Id. 548 Joseph Spector, Flanagan Pans East Ramapo Monitor: “That’s Why We Have Elections,” POLS. HUDSON (Jan. 7, 2016), http://www.nysasbo.org/uploads-firstread/1452263420_2016-01- 08-JN-Flanagan.pdf. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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Senate Education Committee, Flanagan added: “It’s important to recognize that in the state of New York where we’ve directly intervened in school districts, our track record isn’t very good.”549 Interestingly, within GOP ranks, the county-level perspective differed on the East Ramapo matter, as it did for the Kiryas Joel annexation.550 Flanagan’s position disappointed the Republican Rockland County Executive, Ed Day.551 In summarizing the results of his meeting with Flanagan and other Republican Senators, Day said: “[T]hey could not accept a proposal that would usurp the decision-making authority from a democratically-elected school board . . . [but] this would not usurp [that] authority . . . [i]t would provide insurance that a school board acts in a democratic manner.”552 Months later, a vote of the Democrat-controlled Rockland legislature supporting the appointment of a monitor with veto power for the East Ramapo School District confirmed that Day’s view was widely shared among local leaders at the county level.553 The state-level political reality was that Republicans’ narrow control of the state Senate would again be at stake in the 2016 election, making Chassidic support with both votes and campaign contributions a significant concern.554 A presidential election year is a time of highest political risk for Senate Republicans, an increasingly beleaguered conference in New York that is kept in
549 Reisman, supra note 545; see About John J. Flanagan, N.Y. ST. SENATE, https://www.nysenate.gov/senators/john-j-flanagan/about (last visited Sept. 27, 2017). 550 Compare Allison Dunne, Rockland County Exec Meets With NYS Senators about East Ramapo Legislation, WAMC (Mar. 26, 2015), http://wamc.org/post/rockland-county-exec- meets-nys-senators-about-east-ramapo-legislation#stream/0 (discussing the difference in opinion for state oversight of the East Ramapo School District between county officials and legislators), with Chris McKenna, The Fray: NY Senate Set to Vote on Annexation Bill that may Affect KJ Petitions, TIMES HERALD: REC. (June 13, 2015), http://www.record online.com/article/20150613/NEWS/150619613 [hereinafter McKenna, NY Senate Vote] (discussing that the Assembly passed legislation on the Kiryas Joel annexation despite county officials’ opposition). 551 See Dunne, supra note 550. 552 Id. 553 See, e.g., Jane Lerner, East Ramapo: Resolution Supporting Monitor Passes Rockland Legislature, DETROIT FREE PRESS (Mar. 16, 2016), http://www.freep.com/story/ news/local/2016/03/16/east-ramapo-symbolic-support-monitor/81859264/. 554 See Liz Benjamin, Unpredictable Battle for Orthodox Jewish Votes in Crucial Long Island Senate Race, POLITICO (Mar. 21, 2016), http://www.politico.com/states/new- york/albany/story/2016/03/unpredictable-battle-for-orthodox-jewish-votes-in-crucial-long-islan d-senate-race-099792; Joseph Berger, Change in Party Leaning is No Surprise to Constituents, N.Y. TIMES (Dec. 3, 2012), http://www.nytimes.com/2012/12/04/nyregion/simcha- felders-party-leaning-is-no-surprise-to-constituents.html?_r=0; Forecasting the 2016 State Senate Races, CITY & STATE (Aug. 15, 2016), http://cityandstateny.com/articles/politics/new- york-state-articles/the-city-and-state-political-report-state-senate/#.WAzfF5MrKt8. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
1454 Albany Law Review [Vol. 80.4 power by artful gerrymandering.555 John Flanagan became the majority leader in a closely contested battle following the resignation of Dean Skelos under the cloud of scandal.556 Retaining GOP dominance in the Senate was a litmus test for the new leader, likely determinative of his continuation in the job. An additional twist: a good portion of Brooklyn’s Chassidic community is represented by Senator Simcha Felder, an Orthodox Jew and strong advocate for both the East Ramapo School District and Kiryas Joel.557 Nominally a Democrat, Felder consistently voted with Republicans to organize that body, and is a big part of their insurance policy for retaining control in it.558 Flanagan needed his continued loyalty.559
VII. LESSONS LEARNED
A. The “Fewer Local Governments Policy” and Creating Additional Local Governments: A Contradiction Remarkably, and probably because of differences in thinking on just what to count, there is no agreement on how many local governments there are in New York. Governor Andrew Cuomo regularly uses the number: 10,500.560 In 2012, the federal
555 See Thomas Kaplan, Republicans, Outnumbered, Keep Power in Albany, N.Y. TIMES (June 13, 2012), http://www.nytimes.com/2012/06/14/nyregion/republicans-outnumbered- keep-power-in-new-york-state.html. 556 See Jimmy Vielkind & Josefa Velasquez, John Flanagan Replaces Skelos as State Senate Leader, POLITICO (May 11, 2015), http://www.politico.com/states/new-york/albany/ story/2015/05/john-flanagan-replaces-skelos-as-state-senate-leader-022031. 557 See, e.g., Mike Vilensky, Simcha Felder’s Three Party Hats, WALL STREET J. (Aug. 10, 2016), http://www.wsj.com/articles/simcha-felders-three-party-hats-1470877959; see also Shliach Interviews Simcha Felder, CROWNHEIGHTS.INFO (Mar. 12, 2015), http:// crownheights.info/videos/476866/video-shliach-interviews-simcha-felder/ (discussing Senator Felder’s opposition to state oversight of the East Ramapo School District; discussion begins at the 24:00 minute mark of the embedded video); Senator Simcha Felder Praises Cuomo for Vetoing Kiryas Joel Legislation, YESHIVA WORLD (July 9, 2015), http:// www.theyeshivaworld.com/news/headlines-breaking-stories/325806/senator-simcha-felder- praises-cuomo-for-vetoing-kiryas-joel-legislation.html (discussing Senator Felder’s support for the veto of the Kiryas Joel annexation bill). 558 See Jimmy Vielkind, Republicans Crow that Felder is Running on GOP Line, POLITICO (Aug. 10, 2016), http://www.politico.com/states/new-york/albany/story/2016/08/republicans- crow-that-simcha-felder-is-running-on-gop-line-104629. 559 See id. 560 See Tom Precious, Localities See Cuomo’s View as Misleading on What’s Driving up Property Taxes, BUFFALO NEWS (Mar. 16, 2014), http://buffalonews.com/2014/03/16/localities- see-cuomos-view-as-misleading-on-whats-driving-up-property-taxes/; Gov. Cuomo on the State of New York, N.Y. TIMES (Jan. 13, 2016), http://www.nytimes.com/2016/01/14/ opinion/gov-cuomo-on-the-state-of-new-york.html?_r=0. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
2016/2017] The Chassidic Impact on Local Government 1455 government said there were: 3,453.561 A state commission established by Governor Eliot Spitzer in 2008 to make recommendations on local government reform counted 1,607 general purpose governments, 1,811 special districts (including 685 school districts), and 1,302 public authorities and other entities, but also wrote that there were “nearly 5,000 local government entities.”562 Whatever the number, state leaders have generally thought it to be too many and have sought to reduce it.563 Driving down the number of local governments has been a particular priority for Governor Cuomo, which he says is integral to his effort to reduce the state’s high local property tax burdens.564 With particular regard to school districts, the State Education Department continues to offer guidelines and incentives for consolidation.565 When Andrew Cuomo was Attorney General, he championed the Government Reorganization and Citizen Empowerment Act (2009), the aim of which was to ease the process of village dissolution provided for in state law.566 (Villages may also be dissolved at county initiative, subject to three separate majorities simultaneously achieved: of the total of voters in all cities, those in all villages, and those in all territory outside cities and villages within the county).567 Since Cuomo became Governor in 2010, considerable state resources have been devoted to providing
561 U.S. CENSUS BUREAU, INDIVIDUAL STATE DESCRIPTIONS: 2012, at 203 (2013), https://www 2.census.gov/govs/cog/2012isd.pdf. 562 N.Y. STATE COMM’N ON LOCAL GOV’T EFFICIENCY & COMPETITIVENESS, 21ST CENTURY LOCAL GOVERNMENT 10, 12 (2008), https://www.cgr.org/consensuscny/docs/NYS_LGEC_ Report.pdf. 563 See id. at 1, 3; see also ROBIN JACOBOWITZ, CTR. FOR RESEARCH, REG’L EDUC., & OUTREACH, PUBLIC EDUCATION IN ULSTER COUNTY: FINDING THE RIGHT SCALE 4 tbl.1 (2014), http://www.newpaltz.edu/media/the-benjamin-center/discussion_brief_12.pdf (For the number of New York school districts between 1915 and 2014). 564 See, e.g., Andrew Cuomo, Governor of N.Y., State of the State Address (Jan. 9, 2014), https://www.governor.ny.gov/news/transcript-governor-cuomos-2014-state-state-address. 565 See Guide to the Reorganization of School Districts in New York State, N.Y. ST. EDUC. DEP’T, http://www.p12.nysed.gov/mgtserv/sch_dist_org/GuideToReorganizationOfSchoolDistri cts.htm (last updated May 27, 2015). 566 See Irene Jay Liu, Senate Passes Local Government Consolidation Bill, TIMES UNION (June 3, 2009), http://blog.timesunion.com/capitol/archives/15149/senate-passes-local-gover nment-consolidation-bill/. Currently, a village may be dissolved on the initiative of the village Board of Trustees or as a result of a citizen initiated petition signed by ten percent of those registered or five thousand voters (whichever is less) or, in villages of fewer than five hundred people, twenty percent of voters. See N.Y. GEN. MUN. LAW §§ 773, 779(2) (McKinney 2017). A village board proposing a dissolution must present a plan prior to the vote. See id. § 775. If the vote is citizen-initiated, a plan must be developed by the village board after the vote, subject to a second permissive referendum. See id. § 779. 567 See N.Y. MUN. HOME RULE § 33-a(2) (McKinney 2017). THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
1456 Albany Law Review [Vol. 80.4 incentives for local government consolidation. To date, there have been seventy-four state-funded studies of inter-municipal collaboration and consolidation and twenty-six of school district consolidation under the Department of State’s Local Government Efficiency project.568 Additionally, significant continuing financial incentives have been made available by state governments to encourage local government consolidation.569 With regard to the goal of encouraging fewer local governments, and the authority given in law for the creation of villages at local initiative, New York leaders might consider the first law of holes: if you find yourself in one, and want to get out, first stop digging.
Figure 7570
568 See Div. of Local Gov’t Servs., All Projects Funded by Local Government Efficiency Grant Program, N.Y. DEP’T ST., http://www.dos.ny.gov/lg/lge/projects.html#GovConsDiss (last updated Sept. 4, 2014). 569 See, e.g., Gina Genovese, Editorial, On Consolidation, N.J. Can Take Cue from N.Y., N.J.COM (Jan. 17, 2014), http://blog.nj.com/njv_guest_blog/2014/01/on_consolidation_nj_ can_take_c.html. 570 Source on file with the author. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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The original justification for allowing the local creation of villages—to allow the provision of services not deliverable by towns—is no longer valid. The reasons that villages have recently been created—to alter land policy, gain a tax advantage, and/or create exclusive social or ethnic enclaves—are problematic at best, and may be suboptimal, or even invidious (think: exclusionary zoning, and the conditions needed for good, effective community planning).571 This goes for all villages, not only Chassidic villages.572 In short, if state policy is to have fewer governments, the state should not permit legal authority to persist that allows the creation of more of them. New York State really wanted to create the Kiryas Joel School District: it tried four times. That district has become a regional resource serving many (but not all) Hudson Valley Chassidic special needs children.573 But that’s the rub. In an increasingly diverse New York, should we be restructuring government, actually creating new governments, to meet legitimate service needs in a manner that accommodates the values and practices—the alternative definitions of “community”—brought by each minority? Or should we be serving all within a framework of local government that is defining of, or seeks to manifest an idea of, community inclusive of all?574 Certainly we in New York have previously found ways to serve children in parochial schools while still adhering to the requirements of the national and state Constitutions.575 But we have not previously created entire governments to do so.
B. At-Large Elections for Local Boards A favored progressive-era reform, at-large elections are
571 See, e.g., Elizabeth Ganga, Housing Monitor Finds Zoning in Six Towns Problematic, LOHUD (Sept. 9, 2014), http://www.lohud.com/story/news/local/westchester/2014/09/08/ housing-monitor-zoning-six-towns-problematic/15314983/. 572 See, e.g., Sarah Serpas, For Low-Income People of Color in NYC, Segregation is a Regional Problem, CITYLIMITS.ORG (Aug. 1, 2016), http://citylimits.org/2016/08/01/for-low- income-people-of-color-in-nyc-segregation-is-a-regional-problem/. 573 See Joseph Berger, Court Affirms Public School for Hasidim, N.Y. TIMES (Mar. 9, 1995), http://www.nytimes.com/1995/03/09/nyregion/court-affirms-public-school-for-hasidim.html. 574 After the submission of this article for publication, an agreement was negotiated to divide the town of Monroe into two towns, one Chassidic and one not Chassidic. Approval is likely. This first creation of a town in the state’s recent history would simultaneously give the Chassidic community undisputed control of the new town government (tentatively Palm Tree), and remove its influence in Monroe town government. It would also, of course, once again organize a secular government along religious lines and increase the number of local governments in New York, out of accord with policy. 575 See, e.g., Peter J. Weishaar, Comment, School Choice Vouchers and the Establishment Clause, 58 ALB. L. REV. 543, 543–45 (1994). THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
1458 Albany Law Review [Vol. 80.4 prescribed in law for the election of most locally governing boards in New York State.576 They are the norm for towns, villages, school districts, and fire districts, and are commonly used to elect some or all members of city councils.577 As illustrated by the earlier discussed failed attempt in Ramapo, towns and villages may adopt ward systems (sometimes called district systems) by local action.578 However, most such attempts have failed.579 The City of Buffalo is exceptional in its use of ward-based elections for its school board.580 The state’s education law allows the creation of districts for the purpose of school elections, but not nomination and election of members from them.581 Legislation was introduced in the New York State Assembly by Eileen Gunther and in the Senate by William Larkin in 2015-2016 to allow ward based elections in union free and consolidated school districts “[i]n order to prevent overrepresentation or underrepresentation of one geographical area over the other.”582 At-large elections are favored as: advancing the general interest of the community rather than the particular interests of neighborhoods; likely to be more fiscally prudent; and obviating the need for contentious decennial redistricting.583 Ward-based elections, in contrast, are preferred for advancing social diversity and avoiding geographic concentration of governing board members; promoting a closer link between elected representatives and citizens; and opening access to public office by making elections less expensive.584
576 See, e.g., Benjamin, supra note 379, at 735. 577 See id. 578 See, e.g., id. at 737. 579 See id. 580 See, e.g., Craig R. Bucki, Annual Review of the Law: Recent Developments in Government Operations and Liability: Downsizing Done Right: Cutting the Cost of Government through Intermunicipal Collaboration, 44 URB. LAW. 689 (2012). 581 See Benjamin, supra note 379, at 740. 582 Assemb. B. 8163, 238th Reg. Sess. (N.Y. 2015); S. B. 5846, 238th Reg. Sess. (N.Y. 2015); SPONSOR’S MEMORANDUM IN SUPPORT OF LEGISLATION, Assemb. B. 8163 (2015); Leonard Sparks, Bill Would Protect School Boards from Blocs, TIMES HERALD: REC., http://www.recordonline.com/article/20150609/NEWS/150609432 (last updated June 9, 2015); Orange County New York Cities/Towns, COUNTY MAPS N.Y., http://www.countymaps ofnewyork.com/orange_county.shtml (last visited Sept. 28, 2017). 583 See Benjamin, supra note 379, at 744, 756. 584 KIRIL KOLEV ET AL., GOVERNANCE IN LITTLE ROCK, ARKANSAS: AT-LARGE AND DISTRICT ELECTIONS AND THE IMPACT ON REPRESENTATION 14 (2015). Working with a very extensive data base, Jessica Trounstine and Melody E. Valdini find that single-member district systems favor male African American candidates far more than females and “only when underrepresented groups are highly concentrated and compose moderate portions of the population . . . [and] where polarized voting predominates and where groups leverage their THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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Most famously, since the passage of the national Voting Rights Act in 1965, at-large systems have raised a “red flag” as a means of allowing “a unified majority in the community to control the selection of all its [public] officials, denying any voice . . . to social, ethnic, or racial minorities, even if they are of substantial size.”585 In response to voting rights claims, federal courts overturned the at-large election systems of two suburban New York City towns: Hempstead in Nassau County on Long Island and Port Chester in Westchester County.586 Moreover, research has shown that even without litigation (but sometimes perhaps in an effort to avoid it), elected local government boards in New York State have recently been growing more diverse in their composition.587 Of course, the Voting Rights Act does not reach circumstances, as in the Town of Monroe, in which elections are dominated by a local majority that is a minority in the larger society.588 Hudson Valley communities that have observed the unfolding of events in the East Ramapo School District, the Town of Ramapo, the Town of Monroe, the Village of Bloomingburg, and elsewhere have begun to explore the adoption of ward systems for the election of boards in the anticipation of the further growth of their Chassidic communities.589 This is the case, for example, in the Town of Blooming Grove.590 With the state’s population growing ever more diverse, to encourage parallel diversity among elected leaders in local legislative bodies, the state legislature might reverse the structural presumption in state law under which these offices are filled at election. Ward systems would be prescribed, with the at-large alternative becoming optional. As a transitional provision, communities that wished to retain their at-large systems could seek population size to achieve descriptive representation.” Jessica Trounstine & Melody E. Valdini, The Context Matters: The Effects of Single-Member Versus At-Large Districts on City Council Diversity, 52 AM. J. POL. SCI. 554, 561, 567 (2008). 585 Benjamin, supra note 379, at 745. 586 See id. at 748. 587 See id. at 762–63. 588 See id. at 734; Louis Grumet & John Caher, A Sect’s Political Clout, TIMES UNION (May 13, 2016), http://www.timesunion.com/local/article/A-sect-s-political-clout-7467943.php. 589 See Klopott, supra note 290; Joseph Spector, Lawmaker Suggests Ward System for East Ramapo School Board, LOHUD (Dec. 24, 2015), http://www.lohud.com/story/news/politic s/politics-on-the-hudson/2015/12/24/lawmaker-suggests-ward-system-east-ramapo-school-boa rd/77887278/; Voting Wards Rare in Towns, for a Reason, LOHUD (Sept. 30, 2014), http:// www.lohud.com/story/opinion/editorials/2014/09/26/editorial-town-ward-system-weighed-ram apo-north-castle/16291537/. 590 See Eugenia Moskowitz, Wards on Ballot for Fall Election, ORANGE COUNTY POST (July 1, 2016), https://ocpostny.com/2016/07/01/wards-on-ballot-for-fall-election/. THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
1460 Albany Law Review [Vol. 80.4 to do so through a referendum process within a specified period of time from the effective date of the change, but a specified extraordinary majority would be required to obtain this outcome. Once ward systems were in place, a high threshold might be raised against an easy return to an at-large system. Alternatively, the record of federal courts’ enforcement of voting rights might be looked to for standards in identifying “polarized voting” that might be applied more generally in New York to assure more effective representation of local minorities.591 Two that have been used and seem promising are the absence of election outcomes proportional to the population composition of communities and the presence of barriers for some groups in the community to effective involvement in coalition politics.592 If such standards are established, an administrative procedure might be created—say within the Office of Local Government of the Secretary of State— through which a claim of exclusion from effective local participation might be pursued, which, if proven, would be remedied by the conversion of the local system from at-large to ward-based. But this path is not promising. The federal courts themselves have had great difficulty in finding straightforward, consistent ways to objectively measure shortcomings in representation and the standards they have developed for voting rights cases. The authors of one recent comprehensive review of voting rights litigation have written that “the vast majority of courts have refused invitations to set, as a matter of law, quantitative thresholds that preclude (or require) a finding of legally significant white bloc voting.”593
C. Home Rule, Litigation, and Decision Locus New York’s Constitution recognizes “[e]ffective local self- government and intergovernmental cooperation [as] purposes of the people of the state,” and provides local governments “rights, powers, privileges and immunities.”594 This combination has been described as providing a “sword”—a degree of autonomy and specified areas of action for local government—and a “shield”—constraints upon the state in dealing with localities.595 One view regards home rule as
591 See Christopher S. Elmendorf et al., Racially Polarized Voting, 83 U. CHI. L. REV. 587, 641, 642 (2016). 592 See id. 593 Id. at 614. 594 N.Y. CONST. art. IX, § 1. 595 See, e.g., GERALD BENJAMIN, POWERS OF THE CHARTER COMMISSION IN CONSIDERING THE NEWBURGH CHARTER 4 (2011), http://www.cityofnewburgh-ny.gov/sites/newburghny/files/file THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
2016/2017] The Chassidic Impact on Local Government 1461 significantly constrained by areas of policy discretion withheld from localities in state law, and courts’ predisposition to favor state over local authority when the two come into conflict.596 Each of these reflects the persistent importance of Dillon’s Rule, the doctrine that defines local governments as being creatures of the state.597 More recently, others have argued that localities are indeed significantly autonomous in law, though for economic and political reasons, may not be autonomous in fact.598 “The principal constraint on local power is often not legal but economic: the limits of local resources and the structure of inter-local competition.”599 Resort to litigation has been a hallmark of the interactions of Chassidic communities of the Hudson Valley region and their neighbors. Local authority is mostly unchallenged only in cases that involve minimally controversial matters.600 Where there is significant controversy, decisions are driven into the courts.601 Court processes are adversarial by design.602 As a matter of policy, dispute settlement as an alternative to taking a matter to judgment is encouraged by the New York courts.603 But some research suggests that land use disputes in which governments are litigants—the types of disputes in which Chassidic communities most often find themselves—are among the hardest to settle.604 And the New York courts offer no focused land use settlement paradigm.605
/file/powers_of_the_newburgh_charter_commission1.pdf. 596 DAVID J. BARRON ET AL., RAPPORT INST. FOR GREATER BOS., DISPELLING THE MYTH OF HOME RULE: LOCAL POWER IN GREATER BOSTON 3, 7, 10 (2006). 597 See Richard Briffault, Our Localism: Part I—The Structure of Local Government Law, 90 COLUM. L. REV. 1, 8 (1990). 598 See id. at 2. 599 GERALD E. FRUG & DAVID J. BARRON, CITY BOUND: HOW STATES STIFLE URBAN INNOVATION 34 (2008). 600 See Cities 101—Delegation of Power, NAT’L LEAGUE CITIES (Dec. 13, 2016), http://www .nlc.org/resource/cities-101-delegation-of-power. 601 See, e.g., Bekiempis, supra note 408; Chris McKenna, Legislature Awaits KJ’s Town Petition, TIMES HERALD: REC. (Aug. 17, 2016), http://www.recordonline.com/news /20160817/legislature-awaits-kjs-town-petition [hereinafter McKenna, Legislature Awaits Petition]; Adrienne Sanders, East Ramapo, State Hit with Yeshiva Lawsuit, LOHUD (Nov. 20, 2015), http://www.lohud.com/story/news/education/2015/11/20/east-ramapo-yeshivas-suit/758 93324/. 602 See, e.g., Richard D. Freer, Exodus from and Transformation of American Civil Litigation, 65 EMORY L.J. 1491, 1494 (2016). 603 Alternative Dispute Resolution, NYCOURTS.GOV, http://www.nycourts.gov/ip/adr/What _Is_ADR.shtml (last updated Aug. 14, 2013). 604 See Stewart E. Sterk, Structural Obstacles to Settlement of Land Use Disputes, 91 B.U. L. REV. 227, 228–29 (2011); Bekiempis, supra note 408. 605 Interview with John R. Nolon, Distinguished Professor of Law, Pace Land Use Law Ctr. (Apr. 11, 2016). THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
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The pattern of sue and/or be sued to resolve intra- and inter- jurisdictional issues is hardly unique to matters involving Chassidic interests, but its pervasiveness in these matters calls attention to a less-considered dimension of the limits of local home rule in New York: the frequent failure of local governmental processes to channel, contain, and resolve local policy conflicts.606 Central to home rule is the idea that the local venue is decisive where it is empowered, not that it is simply authorized to take the first step in an adversarial decision process.607 This is not to say that home rule requires that local decisions be unchallengeable. But relative finality of local decisions is presumed.608 Courts are federal or state institutions.609 Judges—state or federal, elected or appointed—are not local officials accountable to local policy priorities in their decision-making.610 In fact, their positions are designed to ensure autonomy, not accountability, so as to maximize their unfettered capacity to pursue justice.611 Less noticed, but obvious when called to attention, state and federal courts are organized regionally—within judicial districts— not locally.612 So the Chassidic engagement with local governments is helping to drive a process of de facto evolution to regional decision-making in the Hudson Valley, a sort of quasi-regionalism through litigation.613 But these regions are neither sized nor
606 See Briffault, supra note 597, at 2. 607 See id. at 10. 608 See id. at 73. 609 See Comparing Federal & State Courts, U.S. CTS., http://www.uscourts.gov/about- federal-courts/court-role-and-structure/comparing-federal-state-courts (last visited Sept. 28, 2017). 610 See id.; see also Peter Scheer, Prop 59—Sunshine and Shadow: Commentary by Peter Scheer, FIRST AMEND. COALITION (Mar. 13, 2005), https://firstamendmentcoalition. org/resources-2/ca-proposition-59/sunshine-and-shadow/ (“[J]udicial deliberations can’t be open to the public in the same way and to the same degree as the actions of a city council. . . . Even if they face election periodically, judges are not supposed to be politically accountable in the way city council members are.”). 611 See Richard A. Posner, Judicial Autonomy in a Political Environment, 38 ARIZ. ST. L.J. 1, 1–2 (2006); see generally U.S. CONST. art. III, § 1 (authorizing federal judges to exercise their judicial power). 612 See, e.g., JUDITH S. KAYE & JONATHAN LIPPMAN, N.Y. STATE UNIFIED COURT SYS., THE NEW YORK STATE COURTS: AN INTRODUCTORY GUIDE 3, http://nycourts.gov/reports /ctstrct99.pdf (last visited Sept. 28, 2017); see also Court Role and Structure, U.S. CTS., http://www.uscourts.gov/about-federal-courts/court-role-and-structure (last visited Sept. 28, 2017) (“The nation’s 94 district or trial courts are called U.S. District Courts.”). 613 See Marianne Ojo, Parliamentary Sovereignty, the Rule of Law, and the Separation of Powers: Involving Other Actors in the Legislative and Judiciary Process, in ANALYZING THE RELATIONSHIP BETWEEN CORPORATE SOCIAL RESPONSIBILITY AND FOREIGN DIRECT INVESTMENT 264, 265 (2016). THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
2016/2017] The Chassidic Impact on Local Government 1463 designed for delivering local services.614 Nor do judges make prioritizing, evidence-based decisions that allocate scarce available resources against the range of regional needs.615 Their concerns are, as they should be, with things such as constitutional requirements, legislative or regulatory intent, and adherence to process, with specific regard to the matters before them.616 So the practical question is not one of a choice between regional government and local home rule, but of what sort of regional government we will have: regional government by default, or regional government by design. Regional government by design is better. Even better would be a kind of regionalism that would be compatible with, even synergistic with, local home rule. Declaring it a regional matter, Orange County localities joined together in litigation to oppose Kiryas Joel’s annexation plan.617 But this is a unique, or near unique, circumstance. And reactive regionalism, based upon occasionally collaborating to confront a shared adversary, is an unlikely basis for productive institutional development.618 In general, as Gerald Frug and David J. Barron have pointed out, local governments have far more incentives to compete—for tax base, for example—than to work together.619 The challenge is to develop the legal and political context in which incentives to collaborate on regional matters through a broadly supported regional institution outweighs those to compete.620 Efforts at both the county and state levels to do this have had little effect. For example, the Ulster County charter mandates an intergovernmental collaboration council that meets at the call of the county executive,621 but this has not been used, nor if it were, would it diminish the strong incentives in law for each locality to go it
614 See Richard C. Schragger, The Limits of Localism, 100 MICH. L. REV. 371, 381 (2001). 615 See Ojo, supra note 613, at 265. 616 See, e.g., How Courts Work: The Role of Judges, AM. B. ASS’N, http://www.americanbar .org/groups/public_education/resources/law_related_education_network/how_courts_work/jud ge_role.html (last visited Sept. 28, 2017). 617 See Allison Dunne, Judge Rules That Kiryas Joel’s 164-Acre Annexation Plan is Valid, WAMC (Oct. 13, 2016), http://wamc.org/post/judge-rules-kiryas-joels-164-acre-annexation- plan-valid. 618 See generally Salvatore Massa, Comment, Secession by Mutual Assent: A Comparative Analysis of the Dissolution of Czechoslovakia and the Separatist Movement in Canada, 14 WIS. INT’L L.J. 183, 189 (1995) (“[P]olitically disparate groups easily align themselves against one common enemy, but once they conquer the old power structure, uncertainty and disagreement develop.”). 619 See FRUG & BARRON, supra note 599, at 206, 209. 620 See id. at 211, 216. 621 ULSTER COUNTY, N.Y., CHARTER, art. XXXVII, § C-116 (2012). THE CHASSIDIC PRESENCE AND LOCAL GOVERNMENT
1464 Albany Law Review [Vol. 80.4 alone. New York State has tried carrots and sticks—grants for inter-local collaboration in service delivery, a property tax cap, and county-centered mandated tax saving planning process to limit local resources—to drive structural change.622 But neither has produced serious movement toward the development of regional governance institutions.623 Frug and Barron envision decentralized regionalism: What is needed, then, is an institution that will permit the region’s local governments to work together to advance regional interests. The fundamental issue presented by this alternative version of regionalism is not how to divide power between local and regional decision-makers but how to turn regional decision-making into a form of interlocal decision- making. Clearly, important questions need to be resolved about what such a regional entity would do. But the possible answers to these questions will vary depending on the level of citizens’ confidence that the regional institution will advance local interests rather than simply override them.624 Moreover, the practical design of such an institution remains elusive.625 One model is suggested by the Board of Cooperative Educational Services system (“BOCES”).626 Under the aegis of these boards, which they join and support financially and from which they may not withdraw once they enter, school districts join together to do collectively what they cannot efficiently do individually.627 Perhaps municipalities can join to create an entity, or designate one, to deal with land use related matters that have statutorily defined substantial, measurable impacts beyond the borders of any single jurisdiction. The key is that such an entity may not be ad hoc; once they enter, localities must remain within its jurisdiction, and accept the outcomes of its decision-making.
622 See Daniel Chase Fishbein, 300 Governments: Understanding Intermunicipal Collaboration in Nassau County, NY and Policies of “Forced Efficiency” In New York State, 32 TOURO L. REV. 535, 542, 599 (2016). 623 See id. at 543. 624 FRUG & BARRON, supra note 599, at 216. 625 See id. 626 See About BOCES, BOARDS COOPERATIVE EDUC. SERVS., http://www.boces.org/about- boces/ (last visited Sept. 28, 2017). 627 See id.