KEARSE, Circuit Judge:
These appeals from judgments entered in actions consolidated for trial in the United States District Court for the Southern District of New York, Gerard L. Goettel, Judge, involve claims that defendant Village of Airmont, New York ("Airmont" or the "Village"), along with individual defendants who incorporated the Village and/or served as its officers, discriminated against Orthodox Jews on the basis of their religion through the adoption of zoning policies limiting the use of Orthodox rabbis' homes for prayer services. In the action brought by the United States, the district court, as trier of fact, dismissed the government's claims under Title VIII of the Civil Rights Act of 1968 (the "Fair Housing Act," "FHA," or "the Act"), 42 U.S.C. § 3601 et seq. (1988), finding that the government did not establish that the Village or its officers had engaged in unlawful discrimination
On appeal, the government contends principally that the district court failed to apply Fair Housing Act principles and that it abused its discretion in refusing to enjoin the Village from engaging in conduct that would violate the Act. The private plaintiffs contend principally (a) that the court improperly entered judgment against them as a matter of law on their First Amendment and FHA claims against the Village in light of the jury's verdict in their favor on those claims, and (b) that because of errors in the court's instructions and evidentiary rulings, they are entitled to a new trial on their claims against the individual defendants. Robert Fletcher and Nicholas Vertullo, who were among the defendants in the private suit who received a jury verdict in their favor, cross-appeal, arguing principally that they should have been granted judgment as a matter of law at the close of the private plaintiffs' case.
For the reasons that follow, we reverse so much of the judgment entered in the private action, appealed in Nos. 94-7103 and -6125, as dismissed the private plaintiffs' claims against the Village, we affirm so much of that judgment as dismissed the private plaintiffs' claims against the individual defendants, and we dismiss the cross-appeal as moot. As to the judgment dismissing the government's action, appealed in No. 94-6048, we reverse. In both cases, we remand for further proceedings on issues as to relief.
Airmont is located within the Town of Ramapo, New York ("Ramapo" or the "Town"), a large area that comprises a number of incorporated villages and unincorporated sections. During the 1980s, the Town's Orthodox Jewish population, including Hasidic Jews, a subgroup of Orthodox Jewry, grew substantially. This growth was accommodated by the Town's adoption and interpretation of certain zoning ordinances that facilitated adherence to certain restrictive principles of Orthodox Judaism. Airmont was incorporated in a movement critical of the zoning measures adopted by the Town. The evidence at trial, viewed in the light most favorable to the private plaintiffs as the parties challenging the entry of judgment against them as a matter of law, see, e.g., Binder v. Long Island Lighting Co., 57 F.3d 193, 198-99 (2d Cir.1995), included the following.
A. Ramapo Allows Home Synagogues; Airmont is Incorporated
Strict observance of Orthodox Judaism necessitates a relatively high number of local houses of worship. Daily prayer is required, and the saying of certain prayers and the reading from the Torah on the Sabbath require the presence of a "minyan" — a quorum of ten males over the age of 13. Orthodox Jews are forbidden to use cars or other means of transportation during religious holidays and the weekly Sabbath; thus, adherents are required to walk to their houses of worship. The combination of these requirements makes it important for Orthodox Jews to be able to gather for worship in congregations large enough to ensure the presence of a minyan, and close enough to the congregants' homes to allow them to walk to services.
Ramapo has a zoning code ("Ramapo Code") that, in most residential areas, allows a place of worship to be built only on a lot that is at least two acres in size. Construction of a synagogue on such a lot would cost
Ramapo Code § 376-181, at 37678.
In recognition of the needs of Orthodox Jews for local houses of worship, the Town in the mid-1980s adopted an interpretation of its Code's HPO provision that permitted "home synagogues," by allowing rabbis to conduct worship services within their homes for groups not exceeding 49 individuals.
Until 1991, Airmont was an unincorporated area of Ramapo, governed by the Town's zoning decisions. In the mid-1980s, an organization called the Airmont Civic Association, Inc. ("ACA"), began to push for Airmont's incorporation. ACA was troubled by Ramapo's practice of allowing home synagogues under the HPO provision; it was also concerned about the purchase of a tract in an area of Airmont by a Hasidic group, and about proposed zoning for multiple-family housing in the Monsey section of Ramapo, which would facilitate the growth of the largely Hasidic population there.
ACA's principal goal was to gain control of zoning of the Airmont area. For example, a 1986 flyer invited residents to attend an ACA meeting, asking "WHY DO WE NEED TO INCORPORATE?" and listing "Zoning control and enforcement" among the reasons. Another 1986 ACA flyer focusing on the proposed Monsey zoning for multiple-family housing stated that "the Airmont Civic Association [was] concerned about zoning changes in our neighborhood," quoting a local newspaper article describing the proposal
The flyer stated, "We need control over zoning...."
Throughout the period prior to Airmont's incorporation, ACA emphasized the need for control over zoning in connection with the desire to keep Orthodox and Hasidic Jews out of the Airmont community. For example, ACA leaders polled Airmont residents as to their views, and one response, read aloud by ACA leaders at an August 1986 ACA meeting, stated as follows:
(Emphasis in original.) The minutes of the same meeting forecast "a grim picture of a Hasidic belt from Rockland through Orange & Sullivan counties." At a September 1986 meeting shortly after a Hasidic developer had bought land in the Airmont area, one of those attending referred to that purchase and stated that "everybody knows ... why the Airmont Civic Association was formed. What does the Airmont Civic Association and the proposed village plan to do to keep these Hasidum [sic] out?" (Trial Transcript
(Tr. at 4031.) And a 1990 meeting notice proclaimed
(Emphasis in original.)
The referendum on incorporation of Airmont was held in early 1989. Though apparently most Orthodox Jews voted against incorporation, and a number of non-Orthodox residents opposed on tax-burden grounds, the vote was in favor of incorporation by a 3-1 margin. After delays for litigation, the Village of Airmont was finally incorporated in April 1991.
B. The Present Lawsuits; Subsequent Events; the Jury Verdicts
Two days after the Village was formally incorporated, the private plaintiffs commenced their present action, eventually naming as defendants the Village, ACA, Ramapo, and several leaders of the incorporation movement. Plaintiffs charged that Airmont's incorporation had been undertaken with the purpose of excluding Orthodox Jews, in violation of, inter alia, the First Amendment and the Fair Housing Act, and they sought damages and injunctive relief. Plaintiffs unsuccessfully moved for a preliminary injunction to prevent the election of Village officials; the district court denied their motion on the ground that they failed to make a showing of irreparable harm. See Leblanc-Sternberg v. Fletcher, 763 F.Supp. 1246, 1250-52 (1991). In May 1991, Village elections were held, and the slate of candidates supported by ACA was victorious. Defendant Maureen Kendrick, ACA president from 1988 through 1989, was elected Mayor; the four Village trustees were Fletcher, who was ACA president in 1991, Vertullo, who was an ACA member and a political ally of Fletcher, and defendants John Layne and Marianne Cucolo, who were ACA Board members. Defendant Raymond Kane, also an ACA Board member, was elected a Village trustee in 1992.
The United States commenced its action under the FHA against Airmont and its trustees in December 1991, alleging that the Village had been incorporated for the purpose of excluding Orthodox Jews through zoning restrictions on their places of worship. The government sought, inter alia, a declaratory judgment that the Village and its trustees had violated the FHA and an injunction against further violations. The private and government actions were consolidated for discovery and trial.
The private plaintiffs' damages claims were to be tried to a jury at the insistence of the defendants. Though plaintiffs, initially having requested a jury trial, sought to withdraw that request, defendants exercised their right to a jury trial on those claims. Accordingly, an approximately two-month consolidated trial was held before Judge Goettel, with a jury empaneled to decide the damages claims of the private plaintiffs, and the court to act as factfinder on their equitable claims and the claims of the government.
At trial, the government and the private plaintiffs introduced evidence of the events described above, as well as evidence that ACA had forcefully opposed and challenged
In 1989, Rabbi Sternberg applied for permission to conduct services in his home; ACA strongly opposed, sending six or more members to a Ramapo Planning Board meeting at which the application was to be considered. Each spoke in opposition to the application. According to plaintiff Fred Walfish,
(Tr. at 251.) The position expressed by ACA's then-president Kendrick, as described by Walfish, was similar:
The Sternberg application was initially denied; it was then twice approved, with the restrictions that the HPO could be used only on Jewish holidays and the Sabbath and for no more than 40 congregants, and was twice successfully challenged on technical grounds in Article 78 proceedings financed by ACA. A third and final approval in 1991 did not meet a court challenge. By this time, Airmont had been incorporated. The Village decided not to pursue a third Article 78 proceeding; Cucolo, a Village trustee who was also an ACA board member, stated that the Village did not "have to pursue an Article 78, there are other ways we can harass them." (Tr. at 3599-600.) Thereafter, Montone and others posted themselves outside of Rabbi Sternberg's home to count the arriving congregants; Montone at other times parked in front of the homes of other Orthodox Jews during their prayer times.
Plaintiffs also introduced evidence that in January 1993, Airmont adopted its own zoning code ("Airmont Code"), modifying the Ramapo provision for home professional offices. Airmont's version requires that an HPO
Airmont Code, art. XVIII(2) (unemphasized language in Ramapo Code § 376-181, at 37678; emphasized provisions added by Airmont). The Village appointed a Zoning
In defense, defendants contended that plaintiffs could not show any injury from defendants' conduct. Both the Friedman and Sternberg applications had eventually been approved by Ramapo's Planning Board. Although the Friedman synagogue had not been built, defendants argued that this was because of the loss of congregants and the Rabbi's failure to apply for necessary approval from state agencies. Defendants also attempted to show that the zoning concerns that led them to incorporate and to adopt a strict zoning policy were legitimate and non-discriminatory. Ramapo's Town Supervisor testified that an Orthodox Jew had complained about the expansion of a synagogue near his home. The granddaughter of an Orthodox Jewish rabbi testified that Ramapo had allowed a synagogue on a three-quarter-acre lot next to her home and that she had experienced terrible trouble with traffic, parked cars blocking her mailbox, noise, and spotlights. Kendrick testified that she had opposed the development in which Rabbi Sternberg's home was built on the basis that it was on a flood plain, that the land had once been a garbage dump and might have been contaminated, and that the new construction required the rerouting of the existing river bed.
Plaintiffs, however, introduced evidence that the zoning concerns of ACA and the Airmont trustees had been selective, focusing only on Orthodox synagogues. Thus, whereas home synagogues were opposed in part because they would result in traffic or noise, nonreligious uses of land that caused those problems were not opposed. For example, Kendrick did not complain about a recreational lake with tennis courts and a refreshment stand near her house, though she testified that on weekends these facilities attracted a hundred cars and hundreds of people. Similarly, a certain country club generated what one witness characterized as "a total nightmare between the traffic and the terrible noise." (Tr. at 5335.) Fletcher, however, had argued that ACA should not take action against the club, fearing that if the club were closed, the owner "was going to sell it to the Orthodox people to live on" (Tr. at 5344-45). And whereas ACA had opposed even a slight variance to allow Rabbi Friedman's congregation to build a synagogue on a lot that was nearly two acres, the ACA board members had unanimously declined to oppose a variance for a too-tall spire on a Catholic mausoleum, with Layne stating that they should take that position "because this is the Catholic church that wants it" (Tr. at 3025).
After the close of the evidence, the district court submitted the private plaintiffs' damages claims to the jury. The claims against several of the originally-named defendants had been settled or dismissed prior to trial; in addition, a default had been entered against ACA, which apparently had no remaining assets or officers. The private plaintiffs' surviving claims were those against Fletcher, Layne, Vertullo, Kendrick, Kane, and the Village.
The court submitted to the jury a special verdict form containing a number of interrogatories. For purposes of the present appeal, the pertinent interrogatories posed the following questions and required the jury to respond as to the Village and as to each of the other five defendants "Individually":
After a week of deliberations, the jury returned a verdict finding in favor of the individual defendants on all questions, and finding that the majority of those voting in favor of incorporating Airmont had not been motivated by a discriminatory animus. However, the jury found against Airmont on questions (1) and (2), finding that the Village had violated the private plaintiffs' rights under the Fair Housing Act and had conspired to violate their rights under the First Amendment. The jury awarded zero damages.
The court promptly entered judgment on the verdict in the private plaintiffs's action, reciting (a) that the claims against the individual defendants were dismissed, (b) that the private plaintiffs had prevailed on jury interrogatories (1) and (2) against the Village, and (c) that plaintiffs were awarded zero damages. As described below, the court also denied plaintiffs' claims for injunctive relief.
C. The Decisions of the District Court
Two days after the jury's verdict, the district court found against the government in the latter's action against the Village and the trustees for declaratory and injunctive relief. In a reported opinion dated December 15, 1993, see United States v. Village of Airmont, 839 F.Supp. 1054 ("Government Suit Opinion"), the district court found that the only action taken by the Village after its incorporation that could possibly support the government's claim was the 1993 adoption of the zoning code, which the court found not to be appreciably different from Ramapo's Code. The court stated that while the "minor" differences between Ramapo's Code and the one adopted by Airmont "arguably could be taken as a signal for a different interpretation," Government Suit Opinion, 839 F.Supp. at 1061, it was equally likely that, in order to avoid the cost of litigation, the Village might not interpret its code to prevent the use of HPOs by Orthodox and Hasidic rabbis for worship services:
Id. at 1064 (footnote omitted). The court stated that if the Village of Airmont had developed a reputation as a community that was hostile to Orthodox and Hasidic Jews, "it is largely the result of these ... lawsuits brought against it by the various plaintiffs and the extensive publicity plaintiffs have intentionally generated." Id. at 1062-63.
The court concluded that because the Village itself had done nothing but adopt its own zoning code and had not yet been called upon to apply it, the government had not established a case for injunctive relief. The court took note of the government's argument that "`[a] suit for an injunction deals primarily not with past violations but with threatened future ones; ... [and that] an injunction may issue to prevent future wrong, although no right has yet been violated'" (Government's proposed findings of fact
Government Suit Opinion, 839 F.Supp. at 1064. The court also stated its view that the type of injunctive relief requested by the government was inappropriate, stating, inter alia, that an injunction prohibiting Airmont from denying persons their constitutional or legal rights on account of their religion was unnecessary because it would merely enjoin acts that are already illegal. See id. at 1065.
In entering its initial judgment in the private plaintiffs' action, the district court, in addition to dealing with plaintiffs' damages claims in accordance with the jury verdicts, denied plaintiffs' claims for injunctive relief against the Village on the basis of its view of the evidence as set forth in its Government Suit Opinion:
Following the issuance of the district court's decision against the government and the entry of the judgment in the private action, the Village timely moved under Fed. R.Civ.P. 50(b) for judgment as a matter of law ("JMOL"). In a reported opinion dated March 16, 1994, see LeBlanc-Sternberg v. Fletcher, 846 F.Supp. 294 ("JMOL Opinion"), the court granted the motion, stating that the verdict appeared to be internally inconsistent because the jury had found in favor of the individual defendants but "did not award any damages, not even the $1 nominal damages it could have awarded on the civil rights claim." JMOL Opinion, 846 F.Supp. at 295. On the basis of the facts it had found with respect to the government's claim, the court concluded that the Village was entitled to judgment as a matter of law dismissing the claims of the private plaintiffs:
JMOL Opinion, 846 F.Supp. at 295-96 (footnote omitted). The court added that
Id. at 296 (footnote omitted).
On appeal, the government contends principally that the district court erred in failing to recognize the Fair Housing Act's authorization of injunctive relief for anticipated future violations. The private plaintiffs contend principally that the court could not properly enter judgment against them as a matter of law on their claims against the Village; they also contend that the court erred in failing to award them nominal damages on those claims, and that because of errors in the court's instructions and evidentiary rulings, they are entitled to a new trial on their claims against the individual defendants. Fletcher and Vertullo, on their cross-appeal, argue that they should have been granted judgment as a matter of law at the close of the private plaintiffs' case.
For the reasons below, we conclude that the evidence was sufficient to establish that Airmont violated the private plaintiffs' rights under the Fair Housing Act and the First Amendment; that the district court was not entitled to set aside the jury's verdict against the Village on those claims on the basis of the court's own findings in the government's action; that in light of the established violation of their rights, the private plaintiffs were entitled to an award of nominal damages; that the jury's verdict against the Village constituted collateral estoppel that required the court to find that the government had established a violation by the Village; and that in ruling that injunctive relief was not appropriate, the court failed to apply pertinent FHA principles. We reject the private plaintiffs' appeal against the individual defendants, and we dismiss the cross-appeal as moot.
A. The Private Plaintiffs' Claims
1. Fair Housing Act Principles
The Fair Housing Act makes it unlawful "[t]o refuse to sell or rent ... or otherwise make unavailable or deny, a dwelling to any person because of ... religion." 42 U.S.C. § 3604(a). The phrase "otherwise make unavailable" has been interpreted to reach a wide variety of discriminatory housing practices, including discriminatory zoning restrictions. See, e.g., Huntington Branch, National Association For the Advancement of Colored People v. Town of Huntington, 844 F.2d 926, 938 (2d Cir.), aff'd, 488 U.S. 15, 109 S.Ct. 276, 102 L.Ed.2d 180 (1988) (per curiam); Casa Marie, Inc. v. Superior Court of Puerto Rico, 988 F.2d 252, 257 n. 6 (1st Cir.1993).
The FHA confers standing to challenge such discriminatory practices on any "aggrieved person," 42 U.S.C. § 3613(a)(1)(A). That term is defined to include
42 U.S.C. § 3602(i). This definition requires only that a private plaintiff allege "injury in fact" within the meaning of Article III of the Constitution, that is, that he allege "distinct and palpable injuries that are `fairly traceable' to [defendants'] actions." Havens Realty Corp. v. Coleman, 455 U.S. 363, 375-76, 102 S.Ct. 1114, 1122-23, 71 L.Ed.2d 214
Further, the explicit grant of standing to anyone who believes he "will be injured by a discriminatory housing practice that is about to occur," 42 U.S.C. § 3602(i) (emphasis added), means that a person who is likely to suffer such an injury need not wait until a discriminatory effect has been felt before bringing suit. Thus, where it has been established that a zoning ordinance will likely be applied in a discriminatory manner, it is unnecessary that the municipality actually so apply it before the ordinance may properly be challenged. For example, in Park View Heights Corp. v. City of Black Jack, 467 F.2d 1208, 1214-16 (8th Cir.1972), the defendant city contended that its incorporation and adoption of restrictive zoning ordinances created no harm that was yet justiciable because none of the plaintiffs had yet filed a building permit application that had been rejected. The Eighth Circuit rejected this contention, holding that the plaintiffs had alleged a cognizable harm under the FHA:
Id. at 1216.
An FHA violation may be established on a theory of disparate impact or one of disparate treatment. See Huntington Branch, National Association For the Advancement of Colored People v. Town of Huntington, 844 F.2d at 934-35. Under the latter theory, a plaintiff can establish a prima facie case by showing that animus against the protected group "was a significant factor in the position taken" by the municipal decision-makers themselves or by those to whom the decision-makers were knowingly responsive. United States v. Yonkers Board of Education, 837 F.2d 1181, 1217, 1223, 1226 (2d Cir.1987) ("Yonkers"), cert. denied, 486 U.S. 1055, 108 S.Ct. 2821, 100 L.Ed.2d 922 (1988). If the motive is discriminatory, it is of no moment that the complained-of conduct would be permissible if taken for nondiscriminatory reasons. See, e.g., id. at 1218-19 (where site restrictions on low-income housing were imposed with segregative motive, fact that town had no duty to provide low-income housing was not significant); United States v. City of Parma, 661 F.2d 562, 574-75 (6th Cir.1981) (city's abandonment of application for federal housing funds for racially discriminatory reasons violated FHA), cert. denied, 456 U.S. 926, 102 S.Ct. 1972, 72 L.Ed.2d 441 (1982).
Discriminatory intent may be inferred from the totality of the circumstances, including "the fact, if it is true, that the law bears more heavily on one [group] than another," Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 2049, 48 L.Ed.2d 597 (1976), as well as
Yonkers, 837 F.2d at 1221 (quoting Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 267-68, 97 S.Ct. 555, 564-65, 50 L.Ed.2d 450 (1977)); see also United States v. City of Black Jack, 508 F.2d 1179, 1185 n. 3 (8th Cir.1974) (racist statements by "leaders of the incorporation movement" and fact that "[r]acial criticism
On a claim for damages under the FHA, either party is entitled, under the Seventh Amendment, to demand a jury trial. See Curtis v. Loether, 415 U.S. 189, 192, 94 S.Ct. 1005, 1007, 39 L.Ed.2d 260 (1974). If the claim for damages "is joined with an equitable claim, the right to jury trial on the legal claim, including all issues common to both claims, remains intact." Id. at 196 n. 11, 94 S.Ct. at 1009 n. 11.
2. Principles Governing First Amendment Claims and Claims Under §§ 1983 and 1985
The First Amendment, which is applicable to the states through the Fourteenth Amendment, see Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940), prohibits the states from making any law prohibiting the free exercise of religion. While it is unclear to what extent this prohibition requires states affirmatively to accommodate religious practice, see Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, ___ U.S. ___, ___, 113 S.Ct. 2217, 2243, 124 L.Ed.2d 472 (1993) (Souter, J., concurring) (discussing tension among Supreme Court holdings), it is firmly established that "if the object of a law is to infringe upon or restrict practices because of their religious motivation, the law ... is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest," id. at ___, 113 S.Ct. at 2227 (majority opinion), a test that the law will survive "only in rare cases," id. at ___, 113 S.Ct. at 2233. "[A] law targeting religious beliefs as such is never permissible." Id. at ___, 113 S.Ct. at 2227. See also 42 U.S.C. §§ 2000bb(b)(1), et seq., (restoring the "compelling interest" and "least restrictive means" tests after the Supreme Court had held in Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), that facially neutral laws would no longer be subject to this level of scrutiny under the First Amendment). In determining whether a law is based on religious animus, the same kinds of evidence noted above with respect to a disparate treatment claim under the FHA are relevant. See generally Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, ___ U.S. at ___ - ___, 113 S.Ct. at 2230-31 (Kennedy, J., concurring) (citing Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. at 267-68, 97 S.Ct. at 564-65).
A violation of one's rights under the Free Exercise Clause of the First Amendment may, in some circumstances, be actionable under federal civil rights statutes. Section 1983 creates a cause of action against any person who, acting under color of state law, deprives another of "any rights, privileges, or immunities secured by the Constitution and laws" of the United States, 42 U.S.C. § 1983, including the First Amendment right to the free exercise of religion, see, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, ___ U.S. at ___, 113 S.Ct. at 2224. Where a municipality's own policies deprive individuals of their federal rights, the municipality itself may be held liable. See generally Monell v. New York City Department of Social Services, 436 U.S. 658, 690-94, 98 S.Ct. 2018, 2035-38, 56 L.Ed.2d 611 (1978).
Since the loss of First Amendment freedoms, even for minimal periods of time, constitutes irreparable injury, see, e.g., Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976) (plurality opinion) (freedom of association); Paulsen v. County of Nassau, 925 F.2d 65, 68 (2d Cir. 1991) (freedom of expression), the victim of a conspiracy to violate First Amendment freedoms has standing to bring suit before the conspiracy has resulted in economic or tangible injury. Cf. Virginia v. American Book-sellers Association, Inc., 484 U.S. 383, 393, 108 S.Ct. 636, 643, 98 L.Ed.2d 782 (1988) (facial First Amendment challenge to law limiting display of sexually explicit material, prior to law's enforcement, was not premature).
Section 1985(3) creates a cause of action where "two or more persons in any State ... conspire ... for the purpose of depriving ... any person or class of persons
Establishment of a § 1985(3) claim requires proof of a conspiracy between "two or more persons." A conspiracy, for these purposes, need not be shown by proof of an explicit agreement but can be established by showing that the "parties have a tacit understanding to carry out the prohibited conduct." United States v. Rubin, 844 F.2d 979, 984 (2d Cir.1988); see also United States v. Wardy, 777 F.2d 101, 107 (2d Cir. 1985), cert. denied, 475 U.S. 1053, 106 S.Ct. 1280, 89 L.Ed.2d 587 (1986); Snell v. Tunnell, 920 F.2d 673, 702 (10th Cir.1990) (conspiracy may be established by showing that "participants in the conspiracy ... share the general conspiratorial objective") (internal quotes omitted), cert. denied, 499 U.S. 976, 111 S.Ct. 1622, 113 L.Ed.2d 719 (1991). The term "persons" for purposes of § 1985(3) includes municipalities, see Owens v. Haas, 601 F.2d 1242, 1247 (2d Cir.), cert. denied, 444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407 (1979), and a claim under § 1985(3) may be established against a state if "it is proved that the State is involved in the conspiracy or that the aim of the conspiracy is to influence the activity of the State," United Brotherhood of Carpenters & Joiners of America, Local 610, AFL-CIO v. Scott, 463 U.S. 825, 830, 103 S.Ct. 3352, 3357, 77 L.Ed.2d 1049 (1983).
The district court instructed the jury on the elements of plaintiffs' causes of action under the FHA, § 1983, and § 1985(3). Although conspiracy is not a necessary element of a § 1983 claim, the court and the parties apparently viewed jury interrogatory (2), notwithstanding its reference to conspiracy ("Did any of the Defendants conspire to violate Plaintiffs' constitutional rights to the free exercise of religion [or] free speech?"), as encompassing not only the claims under § 1985(3) but also those under § 1983.
3. Verdict Consistency
One of the grounds on which the district court entered judgment as a matter of law against the private plaintiffs was that it believed the jury's verdict against the Village to be inconsistent with the jury's other verdicts. JMOL Opinion, 846 F.Supp. at 295. Though a judgment should not be entered awarding a plaintiff relief on the basis of inconsistent jury findings, see generally Brooks v. Brattleboro Memorial Hospital, 958 F.2d 525, 529 (2d Cir.1992); 5A Moore's Federal Practice ¶ 49.03, at 49-39 to 49-43 (2d ed. 1994 & Supp.1995), we have several difficulties with the court's action here.
First, if the answers returned by the jury appear to be inconsistent with one another, "[i]t is the duty of the district court to attempt to harmonize the jury's answers, if it is at all possible under a fair reading of the responses." 9A C. Wright & A. Miller, Federal Practice and Procedure, § 2510, at 200-01 (2d ed. 1995). Thus, "[w]here there is a view of the case that makes the jury's answers to special interrogatories consistent, they must be resolved that way." Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines,
Second, in dealing with jury responses that are inconsistent, proper deference to the parties' Seventh Amendment rights to a jury trial precludes entry of a judgment that disregards any material jury finding. See, e.g., Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. at 364, 82 S.Ct. at 786; Auwood v. Harry Brandt Booking Office, Inc., 850 F.2d at 890-91. Thus, if there is no way in which the jury's answers may be harmonized, the court must order a new trial. Id. at 891. Our responsibility as a reviewing court is the same. It is not the province of either court simply to enter a judgment that overrules some of the jury's findings.
In sum, if the district court in the present case considered the jury's verdict of liability against the Village to be inconsistent with the verdicts in favor of the individual defendants or the denial of damages, the court should have sought an explanation, supportable by the record, that was not inconsistent. If it failed to find such an explanation, it should have ordered a new trial. If we concurred in the district court's view that the jury's verdicts were inconsistent, we would vacate the judgment dismissing the private plaintiffs' complaint and remand for a new trial.
Given the record in this case, however, we are not in agreement with the district court's assessment that because only the Village, and not the remaining individual defendants, was found to have violated the private plaintiffs' rights under the FHA and to have conspired to violate their First Amendment rights, the verdicts were internally inconsistent. To the contrary, as discussed below, these findings were consistent with each other, were supported by the evidence, and evinced obedience to the trial court's instructions.
In finding that only the Village violated the private plaintiffs' rights under the Fair Housing Act, the jury may have been persuaded that the only violative act was the enactment of the Airmont zoning code. It is a fair inference that the jury viewed the Village's enactment of that code, with provisions facilitating rejection of HPO applications, as an act that was designed to limit the number of home synagogues and that was thus about to make dwellings unavailable to Orthodox Jews because of their religion. The fact that the jury did not find that the individual defendants so acted was not inconsistent with the finding that the Village itself had committed the violation, because the enactment was that of the Village and the trial court had given an instruction, in response to a question from the jury during its deliberations, that under the doctrine of "legislative immunity," "Village officials who vote for the passage of something cannot be held liable for damages by voting for it." (Tr. at 5855.)
Nor was there inconsistency in the jury's findings that only the Village, and none of the five remaining individual defendants, had conspired to violate plaintiffs' First Amendment rights. As to the § 1985(3) claim, though a conspiracy requires at least two coconspirators, the court had instructed the jury that "the law recognizes a corporation and its officers ... as a single entity" (Tr. at 5668-69). Thus, the jury had been advised that it could not find a conspiracy between the Village and its officers. More importantly, the only persons other than the Village about whom the jury was asked were Fletcher, Layne, Vertullo, Kendrick, and Kane, and it is easily inferable that the jury found that the Village had conspired with someone about whom the jury was not expressly asked, to wit, ACA. No interrogatory was posed with respect to ACA, apparently because the court had previously entered a default against it. There was abundant evidence, however, that ACA had persistently urged incorporation of the Village expressly in order to gain control of zoning in order to keep Orthodox and Hasidic Jews from moving to the Airmont area. For example, at a meeting at which the proposed incorporation was discussed, an ACA member asked, "What does the Airmont Civic Association and the proposed village plan to do to keep these Hasidum [sic] out?" (Tr. at 2989.) After the Village's incorporation, ACA's slate
Further, though conspiracy is not a necessary ingredient of a claim pursued under § 1983, the jury's finding that the Village had conspired to violate plaintiffs' First Amendment rights, like its finding that the Village had violated their rights under the FHA, sufficed to establish the Village's liability under § 1983.
The jury's finding that the private plaintiffs had not suffered monetary damages "as a result of the actions by any Defendant" was explainable by the evidence that there had been no applications for pertinent variances or home synagogues under the Airmont code, and by the trial court's failure to instruct the jury that if it found a civil rights violation it must award at least nominal damages. As discussed in Part II.A.5. below, the court had instructed the jury only that it "may" award nominal damages.
In sum, the jury's verdicts are consistent with fully supportable findings that ACA and the Village conspired to impede the private plaintiffs' exercise of their rights under the First Amendment; that the Village adopted a zoning code that was intended to, and would be interpreted to, curtail home synagogues, thereby deterring Orthodox Jews from purchasing homes in many Airmont neighborhoods; and that because no applications had been made for HPO or variance approvals under the Airmont code, the plaintiffs had not suffered an injury for which the jury wished to award damages.
In recognition of the parties' Seventh Amendment rights to have the private plaintiffs' claims decided by the jury, the district court was required to accord the jury's verdicts an interpretation such as this, which is reasonable, supported by the evidence, and not internally inconsistent.
4. Sufficiency of the Evidence To Withstand a Rule 50(b) Motion
The other ground on which the district court set aside the jury's verdict against the Village was that that verdict did not accord with the court's own findings. This was not a proper basis on which to rule on the Village's Rule 50(b) motion.
In ruling on a motion for judgment as a matter of law under Fed.R.Civ.P. 50(b), formerly called a judgment notwithstanding the verdict ("n.o.v."), see Piesco v. Koch, 12 F.3d 332, 340 (2d Cir.1993) (though Rule 50(b) was amended in 1991 to replace the term "judgment n.o.v." with the phrase "judgment as a matter of law," the substance of the Rule was not changed), a district court is required to
Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363, 367 (2d Cir.1988) (internal quotes omitted); see Gibeau v. Nellis, 18 F.3d 107, 110 (2d Cir.1994); Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir.1970). Only if there is "such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against [the moving party]" may the court properly grant the motion. Song v. Ives Laboratories, Inc., 957 F.2d 1041, 1046 (2d Cir.1992) (internal quotes and alterations omitted). The same standard governs appellate review of a decision granting or denying judgment as a matter of law. See, e.g., Binder v. Long Island Lighting Co., 57 F.3d at 198-99 (grant); Auwood v. Harry Brandt Booking Office, Inc., 850 F.2d at 889 (denial).
In the present case, in granting the Village's Rule 50(b) motion against the private
First, despite the court's ultimate findings in favor of the Village, several of its own statements in the Government Suit Opinion belie its JMOL Opinion statement that there was no possible basis for the jury's verdict against the Village. For example, in its Government Suit Opinion, the court stated that Airmont's changes to the language used in the Ramapo Code "could be taken as a signal for a different interpretation." Government Suit Opinion, 839 F.Supp. at 1061. The court stated as well that "[i]t may also be true that the absence of actions by the Village and its officials adverse to Orthodox and Hasidic Jewish interests has been due in part to the existence of [these] lawsuits." Id. at 1064. Further, the court acknowledged that "[v]iewing the evidence in the light most favorable to the Government, we can foresee that the Planning Board and the Zoning Board of Appeals ... will not adopt the Ramapo interpretation of the home professional office exception." Id. Had the government's suit been the only case tried, the court acting as factfinder of course would not have been required to view the evidence in the light most favorable to the government (or any party). In ruling on the motion by the Village for judgment as a matter of law, however, the court was required to view the evidence in the light most favorable to the private plaintiffs. Plainly the court's decision in the government's case rejected the view of the evidence that was most favorable to the plaintiffs, as the court ultimately concluded that the differences between the Ramapo Code and the Airmont provision were inconsequential and that the latter might not be interpreted to prevent home synagogues. Moreover, given the plethora of statements in the record attributed to ACA leaders who became Village officials, expressing anti-Orthodox Jewish sentiments (e.g., by Kendrick, who eventually became mayor (describing Orthodox Jews as "foreigners and interlopers," who were "ignorant and uneducated" and "an insult to" the community); Fletcher, who eventually became a trustee ("the only reason we formed this village is to keep those Jews from Williamsburg out of here"); and Cucolo as a trustee (Village did not "have to pursue an Article 78 [with respect to Rabbi Sternberg's home synagogue], there are other ways we can harass them")), the court's finding that any reputation that the Village might have had for being hostile to Orthodox Jews had been created by the plaintiffs themselves was inconsistent with a viewing of the evidence in the light most favorable to plaintiffs.
Second, though the court stated that it was granting the Village's Rule 50(b) motion "`without ... considering the weight of the evidence,'" JMOL Opinion, 846 F.Supp. at 296 (quoting Simblest v. Maynard, 427 F.2d at 4), its reasoning indicates that it did weigh the evidence, for it incorporated in its JMOL ruling all of the findings it had made in the Government Suit Opinion. In the latter, it rejected the "foresee[able]" event that Airmont would interpret its code to deny home synagogue permits, finding it "equally" possible that the Village might forbear from such denials because of the cost of litigation. Government Suit Opinion, 839 F.Supp. at 1064. Such assessments of permissible competing factual inferences plainly bespeak a weighing of the evidence.
Finally, and most importantly, whatever its own view of the facts may have been, the court was not entitled to substitute its view for adequately supported findings that were implicit in the jury's verdict. The evidence showed that Orthodox Jews need to be able to worship in a group large enough to guarantee a minyan but close enough to home to allow them to walk to services on their Sabbath and holy days. That need appears to be unique to Orthodox and Hasidic Jews, as only these groups had applied to conduct services in their clergy's homes under Ramapo's
The events cited by ACA leaders as evincing a need for Airmont's incorporation and gaining control of zoning amply supported a finding that the impetus was not a legitimate nondiscriminatory reason but rather an animosity toward Orthodox Jews as a group. They wrote and spoke of Ramapo's interpretation of its HPO provision to permit home synagogues and of its adoption of multiple-family housing as leading to the "grim picture of a Hasidic belt." They cited potential traffic and noise problems among their reasons for opposing home synagogues but tolerated existing traffic and noise caused by secular uses; indeed, such problems emanating from a country club were deliberately ignored for the stated reason that if they were challenged, the owner might sell the property to Orthodox Jews. And whereas ACA opposed even a slight zoning variance for the construction of a synagogue on a lot that was very nearly two acres, there was testimony that its board unanimously elected not to oppose a height variance for a Catholic mausoleum spire "because this is the Catholic church that wants it."
Lest the events themselves left any doubt, the record is replete with other statements of anti-Hasidic animus made or adopted by ACA leaders, such as, "i [sic] will not have a hasidic community in my backyard" (emphasis in original); and "the reason of forming this village is to keep people like you out of this neighborhood."
Taking the evidence in the light most favorable to the private plaintiffs, there was ample support for the jury's implicit finding that Airmont's zoning code would be interpreted to restrict the use of home synagogues, that the motivation behind the enactment was discriminatory animus toward Orthodox and Hasidic Jews, and that Airmont pursued this goal jointly with ACA. Accordingly, the private plaintiffs established the Village's liability on the claims asserted under the FHA, the First Amendment, and §§ 1983 and 1985(3).
5. Entitlement to Nominal Damages
A plaintiff who has proven a civil rights violation but has not proven actual compensable injury, is entitled to an award of nominal damages. See, e.g., Cabrera v. Jakabovitz, 24 F.3d 372, 391 (2d Cir.) (upholding district court's award of such damages in FHA action notwithstanding jury's refusal to award them), cert. denied, ___ U.S. ___, 115 S.Ct. 205, 130 L.Ed.2d 135 (1994); Gibeau v. Nellis, 18 F.3d 107, 110-11 (2nd Cir.1994) (in § 1983 action, "an award of nominal damages is not discretionary where a substantive constitutional right has been violated"); McKenna v. Peekskill Housing Authority, 647 F.2d 332, 335-36 (2d Cir.1981) (where First Amendment claim was established, "[i]f no actual damages exist, the district court is directed to enter a judgment for nominal damages in favor of the plaintiffs"). It is plain error for the trial court to instruct a jury only that, if the jury finds such a violation, it "may" award such damages, rather than that it must do so. See Gibeau v. Nellis, 18 F.3d at 110-11. Where a trial court has committed such an error, and the plaintiff has been awarded no actual damages, we will remand for the award of nominal damages. See id. at 111.
In the present case, the district court instructed the jury that if it found the defendants had violated the private plaintiffs' rights but that plaintiffs had suffered no actual damages, the jury "may" award plaintiffs nominal damages. (Tr. at 5686.) Since the jury found that the Village violated the private plaintiffs' FHA rights and conspired to violate their First Amendment rights, the Village's liability on the claims asserted under the FHA, § 1983, and § 1985(3) was established; since the jury found that plaintiffs were not entitled to compensatory damages, plaintiffs should have been awarded nominal damages.
6. The Private Plaintiffs' Equitable Claims
We also conclude that the district court erred in its denial of the private plaintiffs'
Though the decisions in the present case were rendered in the proper sequence, the court's decision disregarded the estoppel effect to be given to the jury's verdict. In denying the injunctive relief requested by the private plaintiffs against the Village, the court disregarded the jury's findings against the Village and relied instead on the court's own findings in favor of the Village. The judgment stated, in pertinent part, that "[t]he court ... determined that the plaintiffs were not entitled to the injunctive relief requested in the complaint under the evidence presented at trial as set forth in the Court's opinion in [the government's suit]." Though the granting or denial of injunctive relief lies within the court's discretion, a failure to apply a controlling legal principle constitutes an abuse of discretion, and the court here, in relying on its own findings that were inconsistent with the jury's findings, failed to apply controlling principles of collateral estoppel.
On remand, the court should consider, in light of the findings that the Village violated the Fair Housing Act and conspired to violate plaintiffs' First Amendment rights, whether injunctive relief may also be appropriate.
7. The Claims Against the Individual Defendants
The private plaintiffs also contend that they are entitled to a new trial on their § 1983 claims against the individual defendants, principally because the district court instructed the jury that the conduct of those defendants in pressing for Airmont's incorporation could not be considered state action. We reject plaintiffs' contention.
In certain contexts, private actors' conduct can be considered state action and thus governed by constitutional constraints that normally apply only to state and local governments. In Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991), the Supreme Court ruled that peremptory challenges to jurors by attorneys in civil litigation constituted state action, see id. at 622, 111 S.Ct. at 2083, applying the two-part test formulated in Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2754, 73 L.Ed.2d 482 (1982), for determining whether a given set of acts qualifies as state action. That test asks "first whether the claimed constitutional deprivation resulted from the exercise of a right or privilege having its source in state authority, ... and second, whether the private
A drive for incorporation does not meet this test. The circulation of petitions for a referendum on incorporation is typically carried out by private persons in their individual capacities. The proponents may or may not collect enough signatures to call for the referendum. If there is a referendum, a majority of those voting may or may not vote for incorporation. See generally N.Y. Village Law §§ 2-200, 2-202, 2-212, 2-222 (McKinney 1973 & Supp.1995) (territory of not more than five square miles, having at least 500 residents, may be incorporated after a referendum upon petition by at least 20 percent of the voting residents of that territory or by the owners of more than 50 percent of the territory's real property, measured by assessed value). If a majority of the voters do vote in favor, the ensuing creation of the village itself results from the "application of a neutral state law designed to give almost any group of residents the right to incorporate." Board of Education of Kiryas Joel Village School District v. Grumet, ___ U.S. ___, ___ n. 7, 114 S.Ct. 2481, 2491 n. 7, 129 L.Ed.2d 546 (1994). The incorporation is merely a change in status that gives the incorporated body certain powers. The status itself does not necessarily indicate how those powers will be used. See id. at ___, 114 S.Ct. at 2505 (Kennedy, J., concurring) ("People who share a common religious belief or lifestyle may live together without sacrificing the basic rights of self-governance that all American citizens enjoy, so long as they do not use those rights to establish their religious faith." (Emphasis added.)).
The power of a village to adopt a zoning code has its source in state authority, and Airmont's adoption of its own zoning code with its differences from the Ramapo Code to facilitate the rejection of HPOs, was of course state action. But it was that enactment, rather than the mere achievement of incorporated status, that affected zoning and the plaintiffs' rights. Accordingly, the district court did not err in instructing the jury that the individuals' acts to have the Village incorporated did not constitute state action.
We have considered all of plaintiffs' arguments in support of their contention that they did not receive a fair trial of their claims against the individual defendants and have found in them no basis for reversal. Accordingly, we affirm so much of the judgment in the private plaintiffs' suit as dismissed the claims against those defendants.
In light of this decision, the cross-appeal of Fletcher and Vertullo, arguing that they were entitled to judgment as a matter of law at the close of the private plaintiffs' case, is moot.
B. The Government's Action
The government's action asserted claims only under the Fair Housing Act. Under that Act, the basic principles of which are discussed in Part II.A.1. above, the Attorney General of the United States has authority to enforce the Act by bringing a civil action if she determines that the violation "raises an issue of general public importance." 42 U.S.C. § 3614(a). Like the private plaintiffs' equitable claims, the government's FHA claim against the Village and its trustees was tried to the district court rather than to the jury, and the district court found that no violation had occurred. Government Suit Opinion, 839 F.Supp. at 1068. As discussed in Part II.A.6. above, the jury's findings on plaintiffs' legal claims constituted collateral estoppel, preventing the court from making contrary findings as the factfinder with respect to the private plaintiffs' equitable claims. We conclude that the same principle should have constrained the court's findings in the government's suit.
In federal court, the applicability of collateral estoppel is not limited to cases in which there is a complete identity of parties. Offensive collateral estoppel, i.e., foreclosing
On the record before us, none of the considerations that would justify a refusal to allow the use of offensive collateral estoppel is present. The findings of the jury with respect to the private plaintiffs' FHA claims against the Village necessarily determined all of the liability issues in the government's FHA claim against the Village. As the cases were tried jointly, there can be no question that the Village had the opportunity to, and did, fully and fairly litigate the issues. Since, as discussed above, the jury's verdict was fully supportable by the record, the district court was bound to respect that verdict and could not properly make findings that contradicted it. While for practical and policy reasons nonmutual offensive collateral estoppel is not routinely available against the government, United States v. Mendoza, 464 U.S. 154, 159-64, 104 S.Ct. 568, 571-74, 78 L.Ed.2d 379 (1984); see id. at 160, 104 S.Ct. at 572 (in many instances, "allowing nonmutual collateral estoppel against the Government would substantially thwart the development of important questions of law by freezing the first final decision rendered on a particular legal issue"), we see no reasons for denying the government the benefit of the estoppel where its equitable action has been tried jointly with the jury trial of a private plaintiff. Accordingly, the government was entitled to at least a declaratory judgment in its favor.
Finally, to the extent that the district court's decision also indicated the view that even if liability were established injunctive relief would not be proper, we conclude that its view represented a misapplication of the law. The court stated, for example, that it considered certain of the requested injunctive relief as "unnecessary since it would be enjoining acts which are already illegal." Government Suit Opinion, 839 F.Supp. at 1065. It also indicated that injunctive relief was unwarranted because "if there is any action taken in the future which violates [Orthodox or Hasidic Jews'] rights, the United States Government and other plaintiffs will not be timorous about suing." Id. at 1064.
Neither observation was a valid ground for denial of an injunction prohibiting the application of the Airmont zoning code in the discriminatory manner found to be predictable from the evidence in this record. See Part II.A.4. above. The maxim that "equity will not enjoin a crime," 11A C. Wright & A. Miller, Federal Practice and Procedure, § 2942, at 70 (2d ed. 1995) (internal quotes omitted), does not hold where Congress has explicitly authorized injunctive relief. See United States v. Private Sanitation Industry Ass'n, 995 F.2d 375, 377-78 (2d Cir.1993) (per curiam) (holding that injunction against unlawful act was authorized by statute); 5 Moore's Federal Practice ¶ 38.24, at 38-208 to 38-214 (2d ed. 1994); Note, Developments in the Law—Injunctions, 78 Harv. L.Rev. 994, 1015 (1965). The FHA expressly grants district courts the authority to enter such injunctive relief in a suit by the government against a party who has violated the Act "as is necessary to assure the full enjoyment of the rights granted by [the FHA]." 42 U.S.C. § 3614(d)(1)(A); see also id. §§ 3602(i), 3613(a), 3613(c)(1) (private party may bring suit based on a practice that has occurred or is about to occur, and court is authorized to grant injunctive relief in such an action).
The district court did not discuss FHA cases or principles in announcing its view that injunctive relief would be inappropriate. The view that such relief was premature because Airmont had not yet actually applied its zoning provision invidiously was a misapplication
We have considered all of the parties' arguments in support of their respective positions on these appeals and, except to the extent indicated above, have found them to be without merit. For the reasons stated above, we conclude that the district court erred in granting the Village of Airmont judgment as a matter of law dismissing the private plaintiffs' FHA and civil rights claims; that the jury's verdict with respect to these claims was dispositive with regard to the issue of the Village's liability in the government's suit under the FHA; and that the private plaintiffs and the government were entitled to relief.
We reverse so much of judgment entered in the private plaintiffs' action, appealed in Nos. 94-7103 and -6125, as dismissed the private plaintiffs' claims against the Village; we affirm so much of that judgment as dismissed the private plaintiffs' claims against the individual defendants; and we dismiss the cross-appeal as moot. The private plaintiffs' action is remanded for the entry of judgment awarding those plaintiffs nominal damages and such injunctive and other relief as may be appropriate.
The judgment dismissing the government's action, appealed in No. 94-6048, is reversed, and the matter is remanded for the entry of a declaratory judgment in favor of the government and for such injunctive and other relief as may be appropriate.
Costs to the plaintiff-appellants in each suit.