Blog

[VIDEO] Mahwah’s Council President has completely failed to learn any lessons from his harassment, intimidation and bullying over his last term.

Posted on by in Antisemitism, Blog, Eruv, Litigation, Mahwah, Ordinances | Leave a comment

On Jan 9, 2018, I appeared before the Mahwah Township Council because I strongly believe that bigotry must be confronted. I was determined to do my best, to make my message heard. Their response was to interrupt me, chastise me, deny any responsibility for their actions, and ultimately, to threaten me.

Mr. Hermansen, we will not go away!

I want to thank Freeholder Mary Amoroso and Assemblyman Gordon Johnson for their leadership in standing up to bigotry.

We call on all leaders everywhere, to join us.

“We must never remain silent in the face of bigotry. We must condemn those who seek to divide us. In all quarters and at all times, we must teach tolerance and denounce racism, anti-Semitism, and all ethnic or religious bigotry wherever they exist as unacceptable evils.

We have no place for haters in America — none, whatsoever.”
– Ronald Reagan (10/26/1984 Main Sanctuary of Temple Hillel.)

USR Hearing Write-Up: Eruv Litigation Gets Its Day In Court

Posted on by in Blog, Eruv, Litigation, Mahwah, Montvale, Upper Saddle River | Leave a comment

Judge John Michael Vazquez held oral argument Tuesday, in Friedman et al v. The Borough of Upper Saddle River et al. The hearing was initially supposed to cover only the motion for preliminary injunction.  I wrote up the issues involved in that motion here.  The Judge did touch on the motion to dismiss as well.

Here’s how the hearing went:

The lawyers gave their names for the record.  That was the last they spoke. The rest of the hearing, which lasted approximately half an hour was spent listening to Judge Vazquez providing attorneys for the case, with his ‘preliminary views and questions he would have’, should he decide to issue any rulings at the hearing. He also indicated that he was prepared to rule.

The Judge started with a quick synopsis of the status of the case.  He showed an in-depth understanding of every argument mentioned in the briefs, a strong command of the particular issues and facts asserted in the various declarations and was clearly well prepared.

He mentioned the two motions pending before the court (to dismiss, by the defendants and for a preliminary injunction, by the plaintiffs) and referenced Mahwah and Montvale, which have similar cases also pending before him:

“The cases have also been filed against those towns, and one issue I was going to address, if necessary, is I was going to move to consolidate all three cases, they’re all assigned to me, but they all seem to have common issues of fact and law.”

What is the case about?

“Essentially, this matter focuses on the First  Amendment, which has two requirements: One, that as it applies to the states through the 14th Amendment due process clause, that the Government cannot establish a religion, but at the same time the Government cannot prohibit the free exercise of religion. And as the parties have pointed out, normally when we are addressing the free exercise, the question becomes whether a Government entity can make a reasonable accommodation for religious purposes.

In particular, the Borough ordinance which is at issue is the Upper Saddle River Ordinance 16-15, which was approved by the Borough in October of 2015. And the Borough has also raised issues concerning N.J.S.A. 48:3-19.”

After the brief overview, he came back to the theme of the morning: why don’t you settle this?

“I begin by saying I do think this case would be ripe for some type of mediation or settlement conference.

Given the issues and the facts, I do think the parties would be better served if they sat down and tried to resolve their differences. Particularly if they can do so in light of any discussions with Mahwah and Montvale.”

This suggestion was rebuffed after the meeting, by Counsel for USR, Bruce Rosen who stated: “We are not meeting with them.  We are not sitting around a table with three… if the council decides to pursue this [settlement negotiation] we will have a separate negotiating session with them”.

Mr. Rosen further stated that “there is no reason for them to be decided together”.

Back to Judge Vazquez at the hearing:

“That being said, I want to give the parties the benefit of my preliminary views on this matter. None of these views are findings of the Court, and I repeat that, they are not findings of the Court. They are my preliminary views based on reviewing all of the information available to me, and these are going to be the questions that I have.”

The entire hearing was a way for Judge Vazquez to share what he thought without technically saying it as a finding of the court.  Here’s how it unfolded:

Motion to dismiss

Validity of Licenses with Utilities

The Judge went through the issues raised regarding license agreements between the Eruv Association and the utility companies.  He cited allegations by defendants that the license agreement is invalid.  He referred to comments made in the parties’ briefing regarding the number of poles, the agreements covering each of the poles, the various ownership and related endorsements.

“Preliminary thinking is that when I looked at the joint use agreement submitted by the defendants, they focus on language that does not appear to be applicable to this case. The joint use agreement between Verizon and O & R discusses permission, reference other parties using supply circuits to attach supply wires and cables. The eruv and the lackies [sic] in this case do not appear to fit within those definitions. (emphasis added)

The eruv though, on the other hand, the plaintiffs, argue they are authorized by law to do so, and they point to the O & R license agreement that is still operative, and to the extent defendants point out that they need additional licenses, plaintiffs accuse them of being nit-picking and hypertechnical. I do not think it’s nit-picking and hypertechnical, because it was really the thrust of plaintiffs’ argument that they had the proper licenses. So I do not agree with that characterization by the plaintiffs.

That being said, plaintiffs have now presented evidence that O & R and Verizon are going to give any necessary additional licenses to complete the eruv, so it doesn’t seem like it’s going to be a real issue in this case.

The Judge did mention later that while the agreement may not currently cover all of the poles, it is sufficient to use the poles for which they currently have an agreement.

The Judge addressed safety issues, saying the parties should check with Verizon as well as O&R to make sure they have no safety qualms about the installations of the lechis or wires.  He also noted that, to the extent that defendant’s showed evidence that O&R provided correspondence about concerns over signs as a safety issue, the fact they gave a contract to the eruv association seemed to indicate that they didn’t have any issues from a safety standpoint.  Judge Vazquez stated:

“I would never require the town to do something that’s a true safety issue, but at the same time I would ask the town to check with both Verizon and O & R to make sure that they agree it is a safety issue..”

Ripeness

Here, Judge Vazquez addressed arguments that the case wasn’t ripe. For those not familiar with the term, “ripeness” is a legal term indicating that the case is permitted to be heard by the court, at this stage.  In the defendant’s motion to dismiss, defendants claimed that since no formal approval for the eruv was requested from USR, the eruv association was not yet permitted to file suit.  They argued that the plaintiffs would have had to file a request, get turned down and only then, could they sue in court.

Judge Vazquez wasn’t buying it, saying that going through an application process would be an effort in futility, based on the position of USR:

“But the defendants claim that they need, that the plaintiffs need municipal consent and have never asked for it. There is a question of fact there, but when I get to the later issues it certainly seems as though the plaintiffs went to the correct people, or at least people with the apparent authority to give approval, and this was an after the fact litigation tactic by the defendants to try to slowdown this case, saying that they needed to get municipal consent.

The ordinance which I referred to doesn’t refer to getting municipal consent. It seems as though the town attorney has come up with some ad hoc process to get municipal consent, which is not defined in the code. And, frankly, based on page 47 of the defendants’ brief, where they said that Upper Saddle River may not unilaterally grant immunity of the laws of Saddle River or the laws of New Jersey without violating the state and federal constitutions under due process and separation of church and state theories, it seems to me that that’s an admission by the plaintiffs — I’m sorry, the defendants, that they are never going to grant this application under that theory. So it would be completely futile. ” (emphasis added)

Standing

Standing refers to whether or not a particular party to a case can show a sufficient connection to the wrong alleged so that they can continue in the action.

Judge Vazquez went through the standing of the individual plaintiffs.  He had questions that he would raise regarding individual plaintiffs currently living within the NY eruv, but since other plaintiffs, including the BREA clearly have standing, it wasn’t an issue on which he felt the need to dwell.

Preliminary Injunction

RLUIPA

Judge Vazquez seemed to indicate that RLUIPA would not play a role in the litigation, instead focusing solely on first amendment issues. Judge Vazquez quoted from the East End Eruv action in the Hamptons and said: “The Court found that a license does not rise to an actual interest in real property under the statute, and I was going to ask plaintiffs for cases to the contrary. I was not able to find any.”

Vagueness

When discussing plaintiff’s argument that the USR ordinance is unconstitutionally vague (to the point a party wouldn’t be able to tell what it legally covers), Judge Vazquez took issue with the term “matter”.

“As to the issue as to whether the ordinance is unconstitutionally vague, certainly the term “matter” is a broad term and gives the Court concern. I don’t — it seems as though the town is not removing all matter from the utility poles. At least based on the pictures. They may have removed more sizeable matter, which is a somewhat ambiguous term. But there’s other things, including plaque strips and nails and staples and tacks, and it really raises the question of, is the town enforcing that as to all matter, as the ordinance provides, or just some matter.” (emphasis added)

The Judge said he didn’t have enough information to determine whether or not it was vague enough to be unconstitutional. Since there were no definitions provided for “matter” and the parties didn’t provide dictionary definitions, he said he would need additional information to support those arguments.

NJSA 48:3-19 (Municipal consent)

Next, Judge Vazquez discussed the requirement Upper Saddle River says exists on the State level, in a statute that requires municipal consent when using poles that belong to another.

The statute states:

“The consent of the municipality shall be obtained for the use by a person of the poles of another person unless each person has a lawful right to maintain poles in such street, highway or other public place.”

The Judge indicated that despite the fact the statute has been on the books since at least the 1960’s when it was last updated, he couldn’t find even one case interpreting that statute.  He noted that it wasn’t brought up in the Tenafly litigation nor other eruv related actions and would need more information to see if it was applicable. Judge Vazquez further stated:

“Truthfully, as the parties rely upon it, defendants did not submit sufficient information to show that it applies.”

He also questioned whether or not the preceding statute, 43:3-18 needs to be read in conjunction with it, which would change the meaning, as plaintiffs argue in their briefs.

Standard of Revue

The federal courts use different levels of review to determine how to answer questions.  Here, that has to do with how badly a municipality can violate your rights before the court is allowed to tell them to stop. Core constitutional protections have a much higher bar to get over than statutory ones.

The level of review to be used by the court is a crucial determination as to how difficult it would be to enforce the statutes in question against an eruv.

Irrelevance of Discriminatory Intent

Judge Vazquez also questioned if a determination that the ordinance was “facially neutral and generally applicable”, was good enough, due to the findings in the Tenafly action which looked at the “effects of the statute”.

Despite claims by the defendants that discriminatory intent in the drafting of facially neutral, generally applicable ordinances is irrelevant, the Judge stated that he’s not going there.

“Them [sic] also say, at best, it’s an open question at the Supreme Court level. But to the extent it’s an open question at the Supreme Court level, I look to the circuit, and Tenafly clearly says I should consider whether there’s discriminatory intent in reading the law.”

The judge said that he looked at the Town ordinance history and said he thinks “the plaintiffs have raised real concerns about a discriminatory intent in invoking this law, and that the effect was to only harm the plaintiffs.” He said it was an open question as to whether that rose to “a possibility of success or a probability of success”, but wanted to give the parties the benefit of his thoughts.

USR’s Claim that the Ordinance had to do with Signage and was Neutral

Judge Vazquez went through the history of the claims surrounding the reasons for the ordinance.  He spoke about the claims defendant offered regarding political signage.  He noted that there was no evidence proffered by the defendants of concern, at the time, over political signage and that the only evidence appeared in the form of after-the-fact certifications that problems existed, in the past. He questioned why this was an issue that needed redress with a new ordinance, since the town already had a sign ordinance that dealt with the “major concern”.

“To the extent they were worried about signs, they already had an ordinance on the books to confront that.”

He spoke about how the ordinance followed almost immediately, after a closed session meeting in which the eruv was discussed.

Then the judge noted:

“Defendants say I cannot infer any discriminatory intent from the mayor’s comments. Maybe, but maybe not. Timing can be extremely important in looking for reasonable inferences.”

He distinguished the present case from the Tenafly case because in Tenafly, the town had a long-standing ordinance as opposed to the present situation where a new law was enacted once an application for an eruv surfaced.

“What we do know for certain, is that the mayor in the closed session was aware of the eruv, and then it appears in the next session the law was amended. So I do not think, when the defendants say I can’t draw any negative inference from it, that they’re correct.” (emphasis added)

He seemed to question why an ordinance dealing with signage needed to be amended again… in order to deal with problematic… signage.  He also stated that he didn’t see any issue the town was having with devices, but now the ordinance was being amended to add the term “device”, which he noted the town is using in connection to an eruv.

The Judge referenced a 2015 request from O&R regarding signage sent to the Township, questioning whether the new law was even effective at solving the stated objective that the old AND new law were already capable of handling. Judge Vazquez also noted that “it’s not lost on the court” that the same group that complained on multiple occasions about signage was the organization that drafted an agreement with the Vaad HaEruv, and that to the extent O&R did have problems with signs on poles, they clearly didn’t see the eruv as being in the same category.

Consistent Enforcement

The Judge noted that USR has claimed the ordinance in question has always been consistently enforced, that they have training for police officers and that they have officers on patrol.

Then he questioned the violations for which the town was not aware, until plaintiffs pointed them out in their filings. Since some of the items were permanent, like mailboxes, the judge said the court has concerns about the claim that USR was always enforcing this ordinance.  He questioned how they could have been there for so long if the town did have training and had police officers on patrol.

The installation of the eruv

After a tick-tock of the various meetings and conferences between the plaintiffs, the police, code and enforcement officials and the Town’s representatives, the Judge noted that they were given a meeting with the USR police department who were responsible for enforcing the ordinance.

Judge Vazquez questioned the position of USR that the eruv could proceed “temporarily” because a) there was no indication that the eruv would be a temporary structure and b) it seemed as if the eruv was being considered by the Borough — a claim they say never occurred.

Judge Vazquez said it causes the court concern that the borough’s administrator, Preusch, learned from council that the eruv needed approval from the governing body because it seems to contradict claims that “everybody knew about the ordinance and was enforcing it”.  He said that “it doesn’t appear that anybody who was charged with enforcing the ordinance, knew about it.” (emphasis added)

He went into detail on the meeting held with an Upper Saddle River code official, a property maintenance officer and Town officials (including the Town’s administrator).  He indicated that plaintiffs did exactly as they were told at the meeting and went to see the police department, who were in charge of enforcing the code.

The judge noted that after meeting with the police chief, the town claims that the police chief didn’t authorize or condone the eruv, but Judge Vazquez questioned the actions that took place.

“They had just been told three days prior that they were allowed to go forward and go see the Police Chief, and indeed the Police Chief was the one in charge of enforcing the code. So at a minimum, it seems like the Police Chief wasn’t aware of the code or the ordinance that the town now says is being enforced universally by the town at that point. And in fact, it doesn’t seem that any of the town officials, who plaintiffs spoke with, were aware of the ordinance.

So again, that cuts against the claim that they’ve always, that the town has always enforced the ordinance. Because it doesn’t even seem as though the critical people were aware of the ordinance, or that this would be a violation of the ordinance.” (emphasis added)

The judge also questioned the timing of reminders to officers on how to enforce the ordinance, that came directly on the heels of the request for the eruv. He wondered why such reminders would have been necessary had the township truly been enforcing the ordinance, in a neutral and generally applicable matter for years.

The Judge finished by stating the he believed that the final issue was going to be whether the plaintiffs show a possible or a probable success at proving the requirements for a preliminary injunction.

He strongly recommended and encouraged the parties to talk to their clients and decide if it would be fruitful to see if a resolution can be reached.

Judge Vazquez did say that once he received answers to the questions he posed throughout the hearing, he would be able to reach a decision.  But it was his hope, that the parties could come to a resolution, especially one that involved the other towns.

The parties met in private and came back on multiple occasions.  At several points, before, during and after the hearing, the various counsel met with their clients and each other.

After the hearing, Counsel for USR Bruce Rosen stated: “It’s not going to be a slam dunk. I think we really put in a compelling case. We’ll see what happens.”

Yes, we will.  And Eruv Litigation will keep you posted.”

Stay tuned.

The Expert On Eruvs Responds To David May’s Wild Idea

Posted on by in Blog, Eruv, Litigation, Mahwah, Ordinances | 3 Comments

Last week, Mahwah Councilman David May went before the Bergen County Freeholders and requested that they work with various parties to create a county-wide eruv, here in Bergen County.  Despite the serious issues initially identified with the proposal, Mr. May and Mahwah’s Council President, Rob Hermansen, insisted on pursuing it.  They asked for dialogue and questioned why anyone would be against such a plan.

Eruv Litigation went to one of the foremost authorities on eruvin and posed the question as to whether such a plan was even possible.

Rabbi Yosef Gavriel Bechofer*, author of The Contemporary Eruv, was kind enough to evaluate Councilman May’s request for a “county-wide” eruv.

Here is his analysis:

The Ritva (Eruvin 22b) and his Rebbe the Ra’ah hold that walls are not valid when they enclose too broad an area. The Nishmas Adam Klal 49 and the Maharsham 4:1 write that the extent of a person’s unaided eyesight is sixteen mil (mil = 2000 amos). However, scholars have noted that the curvature of the earth prevents one standing at ground level from seeing much further than six mil; and, therefore, that it is questionable whether the source upon which the Nishmas Adam bases his ruling may be applied to the Halachos of Eruvin.
Besides for the issue of size, there is the issue of what the eruv would enclose. Within a large eruv there are likely – nay, there are inevitably – karpeifos (uninhabitable areas that invalidate an eruv) and intercity highways (which are considered reshuyos ho’rabbim – public thoroughfares that invalidate an eruv).
In short, a [Bergen] county-wide eruv is a practical impossibility.
So there it is.  In addition to this idea being bad from a civics point of view, this proposal makes no sense from the perspective of Jewish Law (halacha).  So much for it being “forward thinking“, Mr May.
* Rabbi Yosef Gavriel Bechhofer is the author of one of the most popular tracts on the subject of metropolitan eruvin, and serves as a consultant to communities across the continent, facilitating the building and maintenance of urban and suburban eruvin.

 

The Eruv Litigation Moves To The Courtroom

Posted on by in Blog, Eruv, Litigation, Ordinances, Upper Saddle River | Leave a comment

Tomorrow, January 9th at 10:30am, the Upper Saddle River Eruv Litigation will formally be heard before Judge Vazquez as the lawyers for both sides argue the motion for a Preliminary Injunction in Friedman, et al. v. The Borough of Upper Saddle River.

For those not familiar with the process, whenever you request something from the Judge, by way of making a “motion”, there are three parts.  First comes the actual motion by the moving party.  Then, the other side gets to file an opposition.  Finally, the original moving party gets a reply.  Once all three documents are in, the Judge can either decide the motion based on the briefs received or he can ask  lawyers to come in and argue the motion before him and ask questions.

There are two motions that were filed together in this case.  One was filed by the plaintiffs (the people seeking the eruv) for a preliminary injunction.  The other motion was filed by the Borough of Upper Saddle River (the people trying to stop the eruv), to dismiss the case.

At this point, both motions are fully “briefed”, meaning that the motion, opposition and reply have been filed.  Judge Vazquez has requested the attorneys come in to argue the motion for a preliminary injunction tomorrow.  No argument has been scheduled for the motion to dismiss.

The Preliminary Injunction Motion Documents

In the course of the litigation, the Plaintiffs made the motion.  You can read it here.
Then, the Borough of Upper Saddle River filed an Opposition, laying out it’s reasons against the motion.  You can read the opposition here.
Finally, the plaintiffs filed a Reply to the Opposition in further support of their motion.  You can read the reply here.

What is the Motion for a Preliminary Injunction asking the Judge to do?

As mentioned in the previous post in October, the motion requests the Judge to grant three forms of relief:

  1. Enjoin the municipality from removing the Eruv during the litigation.
  2. Enjoin the municipality from disrupting / preventing maintenance of the Eruv or restoration of damaged sections.
  3. Permit the Plaintiff to complete the planned expansion of the Eruv in the Borough.

What are the sides arguing?

The Plaintiffs have several arguments they put forward in their motion.  The start out by arguing that there is a constitutional right to maintain and expand the eruv.  Not surprisingly, the Borough disputes this and says that as long as a statute is neutrally applied and generally applicable, you do not have a right to put up an eruv in a Township.

Plaintiffs then go through the enactment of USR’s ordinance, banning signage and devices on poles, and argue that they were enacted with “invidious discriminatory intent that violates the first amendment’s free exercise clause”, because the ordinance effectively banning the eruv came immediately after the request for an eruv was submitted to the borough, and discussed in a closed session meeting. They also offer contemporaneous comments from residents which provide context for the reasons the council acted with discrimination. The Borough counters that Ordinance 16-15 is constitutional.  They acknowledge that the timing of the ordinance did coincide with the timing of the request for the eruv, but contend that the ordinance was in the works for years and related to sign problems they had in previous election cycles.  They say that “the effort to pass such legislation got sidetracked due to other more pressing issues and was not revisited for almost a year”.  Defendants claim the ordinance is neutral and generally applicable and even if there was discriminatory intent (which they deny), it wouldn’t matter as it would be “legally irrelevant”.

The plaintiffs also allege that USR’s enforcement has been selective and some larger and more conspicuous signage / objects than lechis (photos of which they include in exhibits to the motion) remained up, as the eruv received special treatment. They contend that nowhere “is there a single instance – not a summons, not a code violation, and not a citation – in which USR enforced the Ordinance form the time it was enacted in October 2015 until Plaintiffs filed this lawsuit in July, 2017.” As you can probably guess, the Borough denies this claim and says that it has consistently enforced the ordinance and any signs the plaintiffs point out in their motion are because “enforcement need not be perfect to show it is not discriminatory”.

The Plaintiffs then argue and the defendants deny that there is no compelling interest (or any interest) in barring an eruv.

The Plaintiffs allege that the ordinance (16-15) barring objects from telephone poles, is “unconstitutionally vague” because it doesn’t include definitions for terms and wouldn’t permit the average person to know what was prohibited.  [You can read our post regarding this issue here -EL].  The Borough disputes this claim indicating that the terms used are plain and ordinary and a person of “ordinary knowledge” can read the Ordinance and “understand its’ plain and ordinary terms.”

The Plaintiffs put forward the argument that the lechis are “authorized or required by law”, which satisfies the State statute and municipal ordinance in dispute. The Borough says that the interplay of State statutes and the Borough Ordinance require specific permission to establish an eruv.

Finally, both sides go through the irreparable harm and Public Interest issues.  Plaintiffs state that irreparable harm would happen to the plaintiffs if the eruv was removed and the balance of hardships of the parties and the public interest favor an eruv.  The Defendants claim that no harm exists and “there is no first amendment right to avoid neutrally-worded laws of general applicability”  USR claims that permitting an eruv would create a “slippery slope” in which groups may litigate concerns instead of dealing with the appropriate governing authorities, usurping their power as an elected body.  Meanwhile, Plaintiffs claim this is a private contractual issue between the plaintiffs group and the utility company in which there’s no role for the USR council.

What happens next?

After oral argument, the Judge can rule immediately or he can take time to consider the arguments and rule at a later date.  Either way, Eruv Litigation will continue to monitor the action and provided information as new entries get filed on the court’s docket.

Stay tuned.

Mahwah: David May explains why the Township is on the wrong side of their civil rights lawsuit

Posted on by in Antisemitism, Blog, Bureaucracy, Eruv, Litigation, Mahwah, Ordinances | 2 Comments

There’s a reason that attorneys ask clients not to speak while they are in the midst of litigation.  Sometimes they can say things, especially truthful things, that destroy the case they are trying to make.

Mahwah Councilman David May came before the Bergen County Freeholders last week with a proposal to create a “county-wide eruv”.  If you want to see why this is a half-baked idea that shouldn’t have been presented, you can see my first post here, which has a set of open questions Mr May refuses to answer, despite his repeated requests for dialogue.

But now, despite his efforts to say that this concept is unrelated to the civil rights lawsuits brought by the State of New Jersey against the Town and his council individually, Mr. May is coming under criticism for such an ill-suited idea, clearly intended to shift the conversation away from the elephant in the Mahwah council chambers.

One of those criticisms came from Jacob Sasson, an attorney with previous experience teaching the First Amendment, on Facebook (you can read our similar criticism here). 

This is an astute observation by a professor that is knowledgeable in the subject matter.

Then came the reply:

“An eruv is barely noticeable attachment to telephone poles”.

Why exactly are these Civil Rights lawsuits against Mahwah happening?

On July 21st, in a letter from Mahwah’s zoning officer to the Eruv Association, Mr. Kelly wrote that “the installation of an eruv would constitute a sign on a utility pole”.  He further states that “[s]ign shall mean any device for visual communication that is used for the purpose of bringing the subject thereof to the attention of the public”.

Does the eruv qualify as a “device for visual communication”?

“An eruv is barely noticeable attachment to telephone poles”
– Councilman David May

We couldn’t have put it better ourselves.

Mahwah’s answer to the Federal complaint is due on January 12th for the suit brought by the Eruv Association and on January 30th for the suit brought by the State of New Jersey.

Deadlines and case information may be found here: http://www.eruvlitigation.com/all-eruv-related-litigation/

2017-07-21_Kelly-to-SMEF

Follow-up to county-wide eruv story (it was never about the eruv)

Posted on by in Antisemitism, Blog, Eruv, Litigation, Mahwah, Upper Saddle River | Leave a comment


For here we admit a wrong; here we reaffirm our commitment as a nation to equal justice under the law.
– President Ronald Reagan on Signing the Bill Providing Restitution for the Wartime Internment of Japanese-American Civilians 
August 10, 1988

There are civil rights battles that transcend party, ideology and tribe. Mahwah, NJ is experiencing one of those moments.

As mentioned in the last post, Mahwah Councilman David May has proposed a county-wide eruv*, appearing before the BergenCounty Freeholders, last Wednesday.  There are many problems with such a proposal and should he deem to answer the open questions put to him in my last post, I’m sure they will become readily apparent.

But on social media, David May and other elected officials have continued to press forward.

The Council President of Mahwah, Robert Hermansen responded via Facebook:

So let me get this straight Mr. Kaplan it is okay to build an ERUV inside a Bergen County town for residents in Rockland County for people to use but it is passing the buck if a county wide ERUV is being discussed. You can not make this up.
When Dave came to me with this idea I told him it had promise but getting the Freeholders who have been silent on the issue except Mrs. Amoroso who is adamant that the ERUV must stay to do anything on this would be a miracle. It is an interesting concept I believe the Freeholder who lives in Mahwah should comment on this I believe this is a better solution than having people come into your town in the dark of the night without permission. Then having vagrants showing up at town meetings looking to cause problems instead of coming up with solutions to people illegally installing items in other towns right of ways. I am still very confused like Mrs. Schepisi why a town in Bergen County needs to solve a NY problem. Mr. Kaplan admitted yet again that this request is coming from actual people who not only do not live in Mahwah but the state of NJ [sic]. I agree with Mr. May that I believe this is a solution that should be discussed.

But this episode goes to show that while Mr. Hermansen and Mr. May might have heard my words before the council at various meetings since July, they clearly have not been listening.

Perhaps if he considered his critics citizens instead of “vagrants”, he may have bothered to listen to what we were trying to impart.

Let me be clear: the issues Mahwah is mired in, are CIVIL RIGHTS issues.  They are defendants in CIVIL RIGHTS lawsuits by the State of New Jersey as well as a Jewish organization.

The fact this is a civil rights issue is beyond dispute.  Our republican appointed attorney general says so in his suit against the township and council.  Soon, the democratic appointed AG will continue to say so, as he takes over the suit. This is an issue that transcends party and ideology.

Back in the summer, an acquaintance asked me if the eruv would “win” the lawsuit in Mahwah? I responded that the Constitution will win and the eruv will benefit.

I have spoken at length on this issue since July & August and my message has been the same — I (and others) have been going to Mahwah and speaking at meetings to DEFEND THE CONSTITUTION OF THE UNITED STATES OF AMERICA.  I’m not denying that such a defense of the constitution will benefit those bringing suit for denial of their rights viz a vid the eruv.  But it’s the rights, not the eruv, that have prompted me to act.

Constitutional rights exist for everyone.  They know no boundaries.  I took an oath to uphold them, when I was sworn in by the township of Teaneck.  Robert Hermansen and David May took the same oath when they were sworn in by the township of Mahwah.

On August 3rd, shortly after a group of us started attending meetings in Mahwah and Upper Saddle River, we heard the following:

“Standing for the First Amendment knows no state boundaries. Standing knows . . . no municipal boundaries. If there is truly something that affects [Plaintiffs’] rights, the courts will hear it. And the courts will be lenient in hearing this because this has been heard already in two major circuits in this area.”

That was stated at the August 3rd, 2017, meeting in USR by Council for the Township, Bruce Rosen.  Mr. Rosen, defended Tenafly in their decade long litigation against an eruv.  If anyone has experience and understanding in this area, it’s Mr. Rosen.

Why would I be opposed to a county-wide eruv, David May keeps asking me.  Maybe, if anyone was asking for it and a need arose for such an accommodation, I’d consider it.  But that’s not the case. It’s the proper role of government to ensure civil rights. It’s not the proper role to create eruvin.

What Mr. May fails to grasp is that this was never about an eruv.  It was about upholding the oath of office we all took when we said we would support the Constitution of New Jersey and the Constitution of the United States.

In August, I asked if Mahwah understood the fundamental issues at stake here. This week, Mahwah makes me doubt they have learned what their error has been.

The Chief of Police told you that your actions were wrong. As did the County Prosecutor and the State Attorney General.

At some point, it needs to dawn on Mahwah’s leaders, so they can say: Here, we admit a wrong.

Only then, will healing the divisions they have sown, be possible.

At the last council meeting in Mahwah, I implored the council to start listening to residents and others coming before them.

It seems to have fallen on deaf ears.

* via Facebook, Mr. May stated that “this was not proposed as a solution to a current problem. This is a proactive thought that should be considered by the Freeholders.”  He further clarified that “this is not about Mahwah. This is an opportunity for the county to be forward thinking and be a leader to all of their towns.”

Mahwah’s David May: Neglecting what’s necessary to focus on the irrelevant

Posted on by in Antisemitism, Blog, Eruv, Litigation, Mahwah | Leave a comment

As reported by Eruv Litigation, Mahwah Councilman David May proposed this week, that the Bergen County Freeholders work with utilities and eruv associations to create a county-wide eruv* for all of Bergen County.

Mr. May stated, “my suggestion isn’t a solution to an existing problem. It is a forward thinking proposal”.

This has been proffered, per Mr. May’s statements on his Facebook page, as a way to

  1. “Remove the potential legal burden off of each individual town in Bergen County”
  2. “Remove the burden on individual Eruv Associations, as there could be a county association”
  3. “Eliminate the uncertainty surrounding the subject matter by increasing awareness of all county residents”


Let’s take this one at a time:

Legal Burdens

The reason for the lawsuit against Mahwah is because the Town Council voted to issue summonses to the eruv association on the eve of a potential meeting with them. If Mr. May and his fellow council-members were truly interested in removing eruv-related legal burdens on their town, the council could permit the eruv and end the litigation today.  They choose not to do so.  Their answer in the federal civil rights action brought by the eruv association is due on January 12th, 2018.  The answer in the federal civil rights action brought against them by the State of New Jersey is due on January 16th, 2018.

Burden on individual Eruv Associations

This is an astounding claim, as there doesn’t appear to actually BE any burden on eruv associations.  The Bergen Rockland Eruv Association has contracted with Orange & Rockland utilities, dealt with insurance, financing, upkeep and maintenance and obtained all requisite insurance necessary for the eruv project.  As they have a valid contract in place with the utility and have expressed no burden requiring help from the County, it’s unclear why a burden exists and how this extra work would ease it.

Uncertainty Surrounding the subject matter

We have asked Councilman May what he means here and based on several responses, it appears to have to do with a public relations effort to support a cross-cultural understanding of what an eruv is and why they are used, so people who have attempted to use opposition to an eruv as a means of excluding certain individuals from their town would have a greater awareness of the issue.

It’s unclear how a County-Wide eruv solves the problem of ignorance and hatred.  But should this council choose to deal head-on with ignorance and hatred, it should start by self-reflecting on how they treat those that oppose their views and why they stay silent when such hatred and vitriol rears its head in their presence**.

Open Questions For Mr. May:

  1. Are any of Bergen County’s Jewish residents asking for a County-Wide eruv?
  2. Is there an eruv association that has asked for help?
  3. Have you spoken to any eruv associations regarding such a large project to find out if they would even accept such a thing before making such a public pronouncement?
    1. if so, what did they say about whether they would find it acceptable?
    2. if not, why did you make this very public request to the County before doing some basic research?
  4. How would a County-Wide eruv affect any issues Mahwah is currently facing?
    1. In light of statements made by the council president that objects to mandates, how would you handle municipalities that still don’t wish to be within an eruv?
    2. Would Mahwah state definitively, now, that an eruv anywhere within its borders (even without a county-wide solution) is acceptable?
  5. Are there not easier and more effective ways of addressing stigma and the ignorance and hatred on display by residents?
  6. Do you feel it is the role of government to move beyond merely granting a religious accommodation when requested, to actively creating them?

 

* You can see Mr. May’s request to the County Freeholder’s here:

** You can see how the Council treats those opposing their views here:


[UPDATE] Appealing to a Higher Authority (with response and new filing with court)

Posted on by in Blog, Litigation, Upper Saddle River | Leave a comment

[UPDATE] A request for comment was made to the University of Pennsylvania, the University of Pennsylvania Law School and Marci Hamilton.  We will update the post with any responses.

[UPDATE 2] We have received a response via email from Ms. Hamilton and a letter was filed with the court at 10:59am.

“The Univ of Pennsylvania was erroneously included in my address, and is being corrected today.  The University has nothing to do with this case.”

The filing, by Upper Saddle River’s attorney, Bruce Rosen indicates:

“While Ms. Hamilton is a professor at the University of Pennsylvania, her involvement in this matter is separate from her job and should not have included mention of the University.”

They have requested the address be updated accordingly.

On January 9th, Judge Vazquez will hear oral argument on the motion for a preliminary injunction brought by plaintiffs in the Upper Saddle River action.

In the coming days, I will share a few posts informing readers of the legal issues presented, what the parties are claiming in their briefs, and will answer questions regarding the status of the various cases.  If you have any particular questions, leave them in the comments below.

But right now, I want to highlight something in the papers submitted by Upper Saddle River — specifically, the return address for Marci Hamilton, Esq. Read More

In Mahwah, the New Year’s Resolutions can be expensive

Posted on by in Antisemitism, Blog, Bureaucracy, Eruv, Litigation, Mahwah | Leave a comment

If Mahwah, NJ thought exclusion and vitriol would be a cost-free endeavor, the past five months have shown them to be sorely mistaken. Ever since the Mahwah Town Council became embroiled in litigation over their creation of ordinances to exclude people they didn’t like from parks (a move they officially rescinded this past week), the topic of costs has been a staple at Town Council meetings.

Residents have questioned appropriated funds for the several law firms representing the Township in the lawsuits alleging claims of animus and discrimination which have been filed by the State of New Jersey as well as a Jewish organization.

And at the last meeting of the year, which took place this past Thursday, the question of costs continued to plaque the council.  Resident Susan Steinberg, who has been an outspoken critic of the Council, again requested information regarding billing and whether extensions to contracts ending in December/January are forthcoming.

But there are now new entries to the costs ledger, Mahwah is now facing which came to light this week.

One additional cost discussed at the December 28th meeting dealt with a $759.87 expenditure by Mayor Laforet and another related to the $17,500 to be made available for the hiring of an investigator to investigate “personnel matters”.  The Council President, Rob Hermansen questioned the $759.87 charge, which the Mayor said related to document production to comply with the subpoena issued by the NJ Attorney General.  He subsequently voted against reimbursing the charge.

FAQ: Frequently Asked Questions about eruvs and related lawsuits

LITIGATION: Click here to see the status of all current Eruv related litigation 

BACKGROUND: Click here to see the developments that led to the litigation

You can watch the exchange here: Read More

[BREAKING] [UPDATE] Montvale, NJ working to settle suit over discriminatory ordinances

Posted on by in Antisemitism, Blog, Litigation, Montvale | Leave a comment

UPDATE: A stipulation was filed with the court today at 1:37pm extending the deadline for Montvale to respond to the complete through January 31st.

As was reported by NorthJersey.com, Montvale, NJ is seeking to settle a federal lawsuit filed by Orthodox Jews in Rockland County, NY over discriminatory ordinances that were created in the weeks after a request for an eruv was initiated in the borough.

While no formal court documents have been filed to confirm this, the Record reports that “Montvale and the Bergen Rockland Eruv Association have been negotiating outside of court to come to a “mutually acceptable plan,” Mayor Mike Ghassali confirmed Wednesday.”

Eruv Litigation will continue to monitor the court actions and post documents for the public.  The response to the complaint in Montvale’s Federal Court case is due today.

FAQ: Frequently Asked Questions about eruvs and related lawsuits

LITIGATION: Click here to see the status of all current Eruv related litigation 

BACKGROUND: Click here to see the developments that led to the litigation

The suit against Montvale was filed on October 18th of this year after attempts by the Plaintiffs lawfirm to settle the issue were unsuccessful.  The plaintiffs also have suits pending against Upper Saddle River and Mahwah, NJ.  The case in Upper Saddle River is set for Oral Argument in NJ Federal Court on Jan. 9th before Judge Vazquez.

In Mahwah, NJ this evening, the Council agenda lists the second and final reading of Ordinance 1820, which will roll back the ban on non-residents using local parks put in place this summer after some residents demanded action against overcrowding in parks by Hasidic Jews.

← Older posts
Newer posts →