On July 27th, 2017, I attended a public session of the Mahwah Town Council. These were the ground rules: no mention of religion and no mention of the Eruv. The claim was seemingly simple – the meeting is about ordinances and enforcement, not antisemitism or Eruvs, so there is no reason to permit comments that may reflect poorly on the Township.
Mahwah’s Council through their lawyer stated that not only council members, but even members of the public, were not permitted to utter such comments. Regardless of whether an issue was one of public concern or related to items on the agenda, mentioning such topics as religion, the Eruv, a letter received by the Bergen County Prosecutor and several others, was verboten.
When questioned as to why this policy was created, Nylema Nabbie, Mahwah’s attorney from the law firm of Gittleman, Muhlstock & Chewcaske, LLP stated: “I do not want a situation where I sit here and I allow comments to come in to create a record that can then be used against this body in a subsequent litigation. That is the purpose of restricting comments.”
This was a horrible, most-uncivic display. NJ Rev Stat § 10:4-12(7)(a) (2016) states “a municipal governing body… shall be required to set aside a portion of every meeting of the municipal governing body…, the length of the portion to be determined by the municipal governing body…, for public comment on any governmental… issue that a member of the public feels may be of concern to the residents of the municipality….”.
The purpose of public comment being mandated at public meetings is for the public to be able speak. To silence members of the public is wrong.
Sadly, even comments unrelated to religion were silenced. One of the speakers was Sami Steigmann, who tried to offer some perspective on the comments he heard that evening:
“Good evening, my name is Sam Steigmann. To understand my position, you will have to understand my background. I am a Holocaust survivor, subjected to medical experiments. My parents and I lived through and survived the darkest period of time in human history. I have known persecution, antisemitism not only in the war, but afterward…” (the video can be seen here starting at 8:45)
That’s as far as he was able to get until the first interruption of jeers and hissing. After these words were uttered, the township attorney and Council President, Robert Hernamsen stopped him several times and would not permit his testimony to continue.
Leaving aside NJ Rev Stat § 10:4-12(7)(a) (2016) , this was a sham. Hours of comments were permitted which tangentially touched on topics such as alleged complaints Jews were offering to buy up houses in cash to depress housing prices, that bus loads of Jews were arriving in parks preventing residents from utilizing them and that the sign ordinance application must be enforced against the Eruv on telephone poles. Of course, those comments were permitted as they didn’t technically mention “Jews” or the “Eruv”, despite a very clear subtext.
UPDATE: On August 8th, I received a response from the Clerk of Mahwah regarding the following request:
Dear Clerk Coviello and Chief Batelli,
At the Township meeting of July 28th, numerous individuals referred to an unnamed person allegedly knocking on doors of residences within the township requesting to purchase a house for cash.
Please provide, pursuant to OPRA, any reports or documents in your possession regarding any such complaints that were made to police or township officials.
The response reads:
“In checking with the Police Chief, I have been advised the Police Department’s Database was checked for documents specific to your OPRA Request. The time period used was January 1, 2017 to date. The Police Department has not located any records specific to your OPRA Request.”
How did we get here?
The timeline leading up to this meeting lays the facts out:
Starting around April, a month after community leaders were condemning a swastika found spray-painted in a township Country Club, some residents were making complaints that they couldn’t use community parks because Jews were swarming.
Comments in private Facebook groups complaining about Jews in the parks requested local representatives to act.
Here’s some of the posts residents have sent me:
The leadership of Mahwah, rather than tackling the issues of hatred and resentment, have instead been stoking the flames of division.
For decades, the parks in Mahwah were open to residents or non-residents alike. Anyone that would partake of enjoyment in the park was welcome. But, after some Jews came strolling through, there were complaints about not being able to use the parks because of the sheer numbers of Jews. The town started to take notice.
One may reasonable ask: What is a town to do?
Despite the presence of the Mahwah Parks on the Recreation Open Space Inventory kept by NJ’s Green Acres (which mandates access be permitted to the public), the township attempted to limit access to the parks. The new rules would prevent those residing in Rockland County from using them.
On June 9, an ordinance was introduced entitled “Park Signs” (see page 121 of the agenda for Ordinance 1806). This ordinance, which had another public hearing on June 29, 2017 (see page 68 of the linked agenda) modified §9-1.3 “Use of Facilities” and replaced the current section with a new one. Here are both versions of the ordinance:
The optics of the ‘police requesting Jews to show their papers’ apparently didn’t sit well with Chief Batelli of the Mahwah Police Department, so he refused to do so. News reports indicate he had liability and Constitutional concerns which prevented him from enforcing such a clear violation of law.
One may think that upon hearing objections from the Chief Law Enforcement official in his town, Council President Hermansen would have acknowledged this wasn’t the best way to go about banning this group. But instead…. he introduces Ordinance #1811 for introduction on July 27, 2017 (see page 41 for the text of the ordinance), which would change the very structure of the Mahwah Police Department. The Chief of Police would cease being the the top law enforcement official and the new ordinance would make him subordinate to a “Police Director”.
Because if you can’t get your cops to break the law, why not find someone who can?
On July 24, 2017, three days before the ordinance was to be introduced, Chief Batelli wrote to the Bergen County Prosecutor seeking guidance, expressing concerns regarding the Mahwah Police Department’s ability to enforce the Ordinance without, among other things, violating the constitutional rights of individuals using Mahwah recreational facilities as well as Attorney General Directive 2005-1, which expressly prohibits racially-influenced policing. Chief Batelli also had concerns that enforcement of the Ordinance may expose him and his department to increased civil liability and to internal affairs complaints. Guidance was issued on July 27, 2017, concurring in Chief Batelli’s observations.
In his response, Bergen County Prosecutor Gurbir S. Grewal wrote that enforcement would violate the Fourth Amendment’s proscription against unlawful searches and seizures citing similarly problematic ordinances enacted in Haledon and struck down on similar grounds back in 1999.
Grewal also said the Ordinance may violate the Directive prohibiting racially-influenced policing, it would run afoul of criminal statutes enacted to prohibit illegal conduct by law enforcement officers and it may give rise to claims that of interference with the First Amendment guarantees / right to due process and equal protection under the law.
So let’s review the timeline:
1) We have a bunch of Jews visiting a local park.
2) Residents complain that said Jews are in the park.
3) An ordinance is crafted to prohibit the Jews from going to the park.
4) The Chief of Police for the Township can’t even see a way this is permissible.
5) The action of the Council is to remove the Chief and put someone in charge that will do it’s bidding.
6) The County Prosecutor cites numerous legal impediments proscribing any such enforcement.
And all along, the stated claim by the township is that this is neutral law enforcement and enactment of neutral ordinances. Nothing to see here. Move along, citizen.
Council President Robert Hermansen said: “This is not an issue about religion it is an issue about our codes and code enforcement.”
Pardon me, Council President Hermansen, but your pants are on fire.