Litigation

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


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

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)

[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

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

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.

FAQFrequently Asked Questions about eruvs and related lawsuits

LITIGATIONClick here to see the status of all current Eruv related litigation 

BACKGROUNDClick 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.

BREAKING: DOJ investigation into discriminatory zoning in Jackson, NJ

As reported by JacksonLeaks.com, the Civil Rights Division of the US Department of Justice has launched its own investigation into Jackson’s municipal laws over possible violations of the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the Fair Housing Act (FHA).

As was reported yesterday, the NJ State Attorney General’s office has also sent a subpoena to Jackson officials requesting documents related to their ban on eruvs within the township.

The DOJ’s request (embedded below) focuses on two ordinances (3-17 and 4-17) dealing with school and dormitory requests by a religious organization, after bans were put in place by Jackson officials.  It requests 10 years worth of zoning and planning documents to see if there is a pattern of targeting unwanted groups or part of a coherent strategy on zoning.

From the DOJ demand letter:

“Our investigation will also focus on whether the Township, by enacting these Ordinances, has engaged in discrimination on the basis of religion by effectively prohibiting any religious organization from establishing a school with religiously affiliated housing, including a yeshiva, in Jackson.”

Read More

Mahwah is starting to reap what they have sown

On Thursday evening, Mahwah introduced Ordinance 1820, which rolls back the restrictions on non-NJ residents entering their parks, created by Ordinance 1806 this summer.

Mahwah’s attorney, Brian Chewcaskie called the move a “strategic recommendation by council” and it seems calculated to do whatever is necessary to appease the outgoing attorney general, who filed a 9 count complaint against both the Township and it’s Council individually, for passing animus infused ordinances against Hasidic Jews in neighboring New York communities, that were enjoying the local public parks.

At the meeting, there was no sign or acknowledgment by the Council that these restrictions, which prompted warnings and alarms from every level of government earlier this year, were wrong on their face.  There was no contrition.  There was no Read More

[MAHWAH UPDATE]: Shifting Into Reverse

Mahwah, NJ has been in the spotlight since the summer for passing ordinances meant to exclude Jews from neighboring Rockland County, NY.

In passing Ordinance 1806, the Town sought to ban non-State residents from parks.
In it’s proposed Ordinance 1812, the Town sought to strengthen it’s ban on items affixed to utility poles (as Jewish groups sought to establish an Eruv on them).

This Thursday, according to the agenda posted online, both are being addressed (watch live starting at 7:30pm on our Facebook page).

Ordinance 1806:

Ordinance 1806 changed Section 9-1.3 to remove “and nonresidents alike”, thereby preventing Jewish groups from NY to use the parks. You can see the before and after language here:

Read More

Will the Mahwah Council Surrender?

On Thursday, December 14th, the Mahwah Township Council agenda reads:
Ordinance 1812; Discussion”

It’s unclear what the purpose of this “discussion” will be from the agenda.  Perhaps, it a signal that the day of reckoning is coming to Mahwah, and the Council will tell the Attorney General they will never pass such an ordinance.

If so, they would be wise to also remove Ordinance 1806 (which prevents Jews from neighboring Rockland County from using its parks) at the same time.  After the Chief of Police, County Prosecutor and State Attorney General declared the Township cannot enforce Ordinance 1806, it became the central element of the lawsuit against the Township for discrimination by the NJ State Attorney General.

Since it has no positive benefit (it can’t even be enforced) and it’s the main thrust of the Attorney General’s case against the Town and its council, the smartest move they can make is to eat a little crow and repeal Ordinance 1806 while disavowing Ordinance 1812.

What is Ordinance 1812?

As you may recall from August, this ordinance sought to strengthen the existing sign ordinance within the Township, at the same time as the administration was sending letters to Orange and Rockland Utilities and the Eruv Association, claiming that the Eruv violated the local sign ordinance.

Here is the language of the ordinance as it was proposed back in August:

The language is identical to Upper Saddle River’s Ordinance 16-15 (which is what USR claims is the basis to deny the BREA’s request to install an Eruv) and this discussion in Mahwah was taking place as an Eruv request was pending there.

Here are Mahwah’s 1812 and USR’s 16-15 side by side:

Therefore it came as no surprise that part of the complaint the Attorney General filed against the Township of Mahwah cited Ordinance 1812 as evidence of discriminatory intent.  In fact, on advice of their attorney Brian Chewcaskie, ordinance 1812 was tabled at the meeting of August 10th.  The Minutes which were posted this week reflect that:

And now…. it’s back.

Will Council President Robert Hermansen have the stomach to do the right thing and remove Ordinance 1806 while disavowing Ordinance 1812, after the rank animus exhibited by the council and several hundred residents?

We will see on Thursday.

Decision in Pomona

Finding zoning rules were discriminatory against a dorm school, a decision in Manhattan Federal Court yesterday (112 page opinion embedded below)  dealt a major blow against the Village of Pomona and their legal team (including lead attorney Marci Hamilton, who is also Of Counsel for Upper Saddle River in their Eruv litigation).

via Lohud.com, the battle cost Pomona more than $3 million as of 2016 (they had budgeted $800,000) and is still ongoing.  They may be required to pay an additional $4 million in legal fees for Plaintiffs as well.

In addition to legal fees, the village was ordered to pay an additional $43,000 last year because the Mayor and former Trustee were found to have destroyed evidence by removing Facebook posts that were derogatory towards the Plaintiffs.  “[Judge] Karas had called Louie’s deletion a “rare case where bad faith and a clear intent to deprive Plaintiffs of the evidence… is sufficiently clear” in a 145-page decision released in September 2015. ”

As per yesterday’s opinion:

“[Judge] Karas found “Plaintiffs established that Pomona’s zoning scheme is impermissible pursuant to New York law because its exclusionary scheme was enacted for an improper, discriminatory purpose and, consequently, is invalid.” (page 110)

Read More