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..”
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 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.
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.”
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.
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.”