Making Canon fodder of USR’s Eruv Ban (Ordinance 16-15)

USR: Open Public Records Act (OPRA) requests show that in August of 2015, the Borough of Upper Saddle River started to discuss Vaad HaEruv’s application and contract with Orange & Rockland Utlities for an Eruv covering a small portion of the borough. Records produced also show that the borough council immediately moved to draft legislation targeting it. 

Last Tuesday, a Motion for Preliminary Injunction¹ was filed by Plaintiffs to issue an injunction against the Borough of Upper Saddle River’s selective and targeted behavior towards the Eruv (case documents and updates can be found here).  The request seeks to:

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.

Typically, in order for a preliminary injunction to issue, you must meet four criteria:

1. Show that there’s a substantial likelihood of success on the merits of your case.
2. Show how the balance of harms weighs in the favor of the party seeking the preliminary injunction.
3. Show that there will be irreparable harm if the injunction isn’t granted.
4. Show how the injunction serves the public interest.

The Federal courts have already addressed most of this in the Tenafly litigation back in 2002. There, the US Court of Appeals stated:

“Our review of the record leaves us convinced that, in addition to the reasonable probability that the plaintiffs will ultimately prevail on their free exercise claim, the remaining three factors for injunctive relief—irreparable injury, the balance of hardships, and the public interest—also favor a preliminary injunction.”

Like the parallel action proceeding against Mahwah, it seeks to maintain the status quo condition of the Eruv.  Typically courts want to maintain the status quo, so as far as A & B go, the Judge will likely grant the injunctive relief requested.  That leaves C (permission to complete the planned expansion of the Eruv).  While this seems to move beyond the status quo of the litigation, the balance of harms may tilt significantly in the plaintiff’s favor.

The Third Circuit Court of Appeals, in upholding the request for a preliminary injunction in Tenafly noted:

With respect to the balance of hardships, a preliminary injunction would not harm the Borough more than denying relief would harm the plaintiffs. Enjoining removal of the eruv would cause neither the Borough nor its residents any serious injury. Without an injunction, on the other hand, the plaintiffs’ free exercise of religion will be impaired. The balance easily tips in the plaintiffs’ favor.

Finally, where there are no societal benefits justifying a burden on religious freedom, “the public interest clearly favors the protection of constitutional rights.” Council of Alternative Political Parties v. Hooks, 121 F.3d 876, 884 (3d Cir. 1997). We do not see how removing the lechis could advance any interests sufficient to outweigh the infringement of the plaintiffs’ free exercise rights. (emphasis added)

The plaintiffs have alleged several scenarios in which their ability to freely practice their religion has been impaired. If the Court agrees that having an Eruv is part in parcel of the free exercise of religion, that removing it is going to seriously impair that exercise and keeping the lechis up would cause no residents any serious injury, what reason would there be NOT to grant this de minimis extension of the Eruv as well during the pending litigation?

But before we can answer that, let’s take a look at what the USR ordinance says and it’s legislative history.

USR responds to the news of an Eruv with ORDINANCE 16-15

On August 18th, 2015, the Council in USR was informed by Mayor Minichetti that an agreement between Vaad Haeruv and Rockland Electric Company was approved, which allowed for “the installation of a ERUV system on poles owned by Orange and Rockland Utilities”.

At the very next meeting, held a mere two weeks later on September 3rd, 2015, the closed session minutes indicate that Robert Regan, USR’s Borough attorney explained that an “ordinance that prohibits posting anything on utility poles” will be introduced at the Regular Meeting that evening.

That’s astoundingly quick for government.  Upper Saddle River heard about an Eruv and immediately drafted up an ordinance for it’s very next meeting?  The timing shows that the Eruv and response are not only related, but that Ordinance 16-15 was aimed at a specific religious practice.² Since the drafted ordinance was in direct response to the Eruv, assuming a claim of a compelling governmental interest was even at stake, the remedy would need to be narrowly tailored.  As you’ll see below, Ordinance 16-15 is instead, overly broad and vague at the same time.

So let’s recap the chain of events.  The Eruv association comes to the borough and informs them that they have an agreement with the utility company and were about to put up an Eruv.  The borough, within the two week period between finding out and their next meeting, rushes to cobble together & introduce an ordinance that they claim coincidentally deals with putting lechis on utility poles.

During the September 3rd, 2015 Regular Meeting, Councilman Durante read for the first time, Ordinance 16-15 titled: “An ordinance to Amend Chapter 122 of the Code of the Borough of Upper Saddle River Entitled Streets and Sidewalks”.

What does Ordinance 16-15 do?

Ordinance 16-15 added section G to Borough Road Regulations §122-17, Unlawful Acts forbidding anyone to:

G. Post or affix any sign, advertisement, notice, poster, paper, device, or other matter to any public utility pole, shade tree, lamp post, curbstone, sidewalk, or upon any public structure or building, except as may be authorized or required by law.

At the very next meeting which took place on October 1st, 2015, ordinance 16-15 was unanimously approved on second reading.

USR’s council gets no points for creativity.  They didn’t even attempt to hide the causal relationship between the Eruv and the new ordinance.  This was literally introduced at the meeting following information that an Eruv was being erected within the borough.

But does the ordinance, as drafted, even apply to the Eruv as they claim in the letter USR’s municipal attorney sent to O&R and the email he sent to the Eruv Association?

No.

As it turns out, writing laws is hard.  Mahwah has been attempting this since August (see Ordinance 1812, which coincidentally contains the same exact language ³ and has been pulled from the agenda several times).

• Ordinance 16-15(G) prohibits signs, but what counts as a sign?
• The ordinance prohibits posters, but what counts as a poster?
• The ordinance prohibits devices, but what counts as a device?
• Does “public utility pole” mean a public pole as opposed to the private poles owned by Orange & Rockland or does it mean something else? 

Codes typically contain definition sections to let you know what these words mean, but without a definition in the code, it’s impossible to say what a term conclusively means.  As mentioned in the Plaintiff’s brief, the borough didn’t define any of the terms they put in their ordinance.  If you go to the definitions section for §122 to see what is listed for “sign” or “advertisement” or “notice” or “device”, etc… you’ll be disappointed.  None of them exist.  Nor does a definition for “public utility pole” or “public structure” or “building”.  In fact, the only defined term for the section is “street”. This is a problem, if you are tasked with enforcement.  Where would you begin?

That’s why, in addition to solid arguments as to why Ordinance 16-15 fails (for a host of reasons including violating Plaintiffs rights to maintain & expand an Eruv and the discriminatory, not at all generally applicable manner in which the ordinance was conceived, read the brief here), Plaintiffs also argue that it’s “unconstitutional vague”.  Not to simplify the arguments too much, but you need people to know what laws mean in order to demand they obey them & in order to enforce them.

What do you do with an ordinance that is missing definitions?

When precedent or statutory definitions aren’t there to fall back on, interpreting statutes and ordinances can get confusing.  But there are ways courts and lawyers make sense of things.  One of these ways is through the use of what are called canons of construction. The textual canons get fancy Latin names, like Ejusdem Generis (because everything sounds fancier in Latin).

Really simply, it means that things following lists are to be considered “of the same kind”.  So if a law, for example, refers to licensing of “automobiles, trucks, tractors, motorcycles, or other motor-powered vehicles”, a court might use the canon to hold that such a class of vehicles would not include your kids power wheels, because, while it may have a motor, the list preceding “other motor-powered vehicles” included only a certain type of road-based transportation.

Here, in ordinance 16-15, we see a list: “signs, advertisements, notices, posters, papers & devices”.  Using another doctrine ⁴ (with a pretentiously Latin name) courts figure out the meaning of words from the words around them.  Even though it’s impossible to know exactly what the terms mean (since none of them are defined), it’s clear enough that the things prevented from going on utility poles are something descriptive.  “Signs, advertisements, notices, posters, papers & devices” are commonly used to provide information to the person looking at it.

Following the list, the ordinance adds: “or other matter”.  Is this “any” other matter?  Clearly not.  The doctrine that things following lists are to be considered “of the same kind” tells the judge that the “other matter” must be an item similar to the category it follows.  A lost dog sign would be included; a pvc pipe would not.

If you’re unsure why, the reason why can be found in the precedent the Third Circuit Court of Appeals decided in the Tenafly litigation.

[I]t appears that the eruv serves a purely functional, non-communicative purpose indistinguishable, for free speech purposes, from that of a fence surrounding a yard or a wall surrounding a building.

Rather than “actually assert[ing] anything to anyone,” id. at 1092, it seems that the eruv simply demarcates the space within which certain activities otherwise forbidden on the Sabbath are allowed. (emphasis added)

In short, if the items forbidden by Ordinance 16-15 were properly defined as part of a class of expressive signage and an Eruv isn’t signage, the Eruv doesn’t count for purposes of determining what is excluded under the code.  

To the extent these terms weren’t defined and remain vague & ambiguous, they should be interpreted not to inhibit harmless religious practice.

The borough will be briefing their motion to dismiss the complaint concurrently with the request for the Preliminary Injunction, so we may see more information come forward shortly.  But based on the rank animus on display at council meetings and in online forums fueling this discriminatory conduct, coupled with very poor drafting of an ordinance passed in haste with “discriminatory and invidious intent”, I don’t see this working out well for the Borough of Upper Saddle River.

Stay tuned.

1. A preliminary injunction is a request for a Court to issue an order prior to a final determination on the merits of a case, to restrain a party from doing some kind of conduct or compelling some course of conduct until the case has been decided.
2. Laws made in response to religious practice are a problem the US Supreme Court tackled in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah back in 1993. That case dealt with laws against ritual slaughter of animals because the law was specifically targeted to the religious conduct.
3. Ordinance 1812 states in relevant part: “Post or affix any sign, advertisement, notice, poster, paper, device, or other matter to any public utility pole, shade tree, lamp post, curbstone, sidewalk, or upon any public structure or building, except as may be authorized or required by law.”
4. In Latin, it’s called noscitur a sociis which sounds so much more legal.