Upper Saddle River

The High Price of Hate

AG Lawsuit Update and Invoices for Northern Bergen County related litigation

Mahwah was in court this week having settlement talks with lawyers from the NJ Attorney General’s office. The township council was charged with discrimination after passing an ordinance aimed at banning Hassidim from their parks & trying to prevent the final segment of the Rockland Eruv from running through a corner of the township. These actions have cost Mahwah dearly, both monetarily and in terms of reputation. Bordering Upper Saddle River has also rung up high legal costs, while nearby Montvale emerged relatively unscathed overall.

Eruv Litigation has obtained invoices from each town. These invoices are presented below, but in general reveal a few interesting facts:

  • The three towns were in communication from the beginning, and spent time analyzing each other’s legal filings and developments.
  • All three towns received subpoenas from the NJ Attorney General’s office around the same time, but in the end only Mahwah was sued by the State.
  • Special counsel worked on auxiliary items such as reviewing OPRA requests and advising on police reports (a number involving Facebook Group “Citizens for Better Upper Saddle River” founder, Erik Friis).


Mahwah unleashed its actions amidst an outpouring of hate and bigotry, egged on by their council. To defend against the two federal court cases (see here and here) that it faced as a result, Mahwah hired a bevy of law firms with random specialties.

The eruv case was handled by three separate law firms, who together never made a single filing or motion in court for any of the cases against the Township:

  1. Municipal law experts Cleary Jacoby, Mahwah’s usual special counsel, who billed a total of $69,690.65 (invoice)
  2. Securities and commercial law firm Holwell Schuster, who billed a total of $37,402.44 (invoice), and
  3. First amendment lawyers Nelson Madden Black, who billed a total of $40,912.5 (invoice)

The still ongoing Attorney General suit, currently in settlement talks, is being handled by two firms:

  1. Cleary Jacoby again, who have billed a total of $43,826.62 to date (invoice), and
  2. Methfessel & Werbel, who work primarily in insurance law and have billed a total of $19,563.16 (invoice) to date

When including the $10,000 paid by Mahwah to cover the eruv association’s legal costs in a settlement, this is a total of $221,395.37 spent on litigation (to date) due to the town’s actions. Note that this number will increase as the Attorney General lawsuit progresses, and may include a penalty paid if the case is lost or settled.  Mahwah’s request to file for dismissal of the suit was denied this week and the case is currently set for fact discovery which is to be completed by September 30th, 2018.

Upper Saddle River

In addition to having the best case (see here), USR had a veritable anti-eruv dream team working their defense:

  1. Bruce Rosen, hired as lead attorney, is the only person to ever have any measure of success against an eruv; his legal arguments won the first round in 2001 in favor of the town of Tenafly before the ruling was reversed on appeal. His firm billed USR a whopping $402,521.48 (invoice), which included writing extensive legal briefs and a few appearances in court.
  2. Joining as adviser was Marci Hamilton, professor of constitutional law, and the lawyer who had the predecessor to RLUIPA declared unconstitutional. She billed only $5000 (invoice) for her involvement, although she tried to cash in on the esteem of her University.
  3. Finally, Joel Kurtzberg from Cahill Gordon provided auxiliary support to the USR litigation team, billing $97,958.80 (invoice)

After a disastrous preliminary hearing, Upper Saddle River settled, agreeing to allow the eruv to remain if moved as close to the NY border as possible, and pay $75,000 of the eruv associations legal costs. This brings their total costs to $580,480.28.


Among the three municipalities, Montvale took a different path. The town administration signaled their willingness to settle their case first, with Mayor Mike Ghassali holding a two hour town hall where he said they will “accommodate their neighbors to the north”. The town used only their usual township attorneys, Boggia and Boggia, who billed just $8,148 (invoice) to negotiate an agreement.Combined with the $10,000 settlement they paid, they spent only a fraction of what the other towns did at a total of $18,148. Montvale’s settlement was essentially the same terms, if not better, then the others, but they paid far less and really did not end up caught up in the controversy at all.

Everyday Racism: 84 years ago and today

As Edmund Burke once said: “The only thing necessary for the triumph of evil is for good men to do nothing.”  For the past 7 months in NJ, we have seen a lot of good people saying nothing — as hatred and animosity towards the (((others))) came to the fore.

When a Mahwah Council-member (he has since resigned) mocked a Holocaust survivor and pointed to the “money-trail”, the good people were silent.

Racism isn’t new and hating people because they are different will never go out of style.  But between the violent outbursts we learn about in civil rights battles, there was always an everyday racism.  It’s the story of average, everyday people.  People that didn’t seem to be expressing active hatred.  People that seemed to just want to continue going about their daily lives the way they always had been.

It’s the everyday attitude that lets hatred proliferate when it ceases to be the muffled noise, and moves to the streets.

Eighty-four years ago, silence by good and decent people in Europe let evil triumph, as people took to the streets to advocate the destruction of the Jewish eruv and threw stones through windows of the Jewish community president’s home.

I have seen similar comments of those who threaten to tear it down today.  Not in Europe, but here in New Jersey.

Perhaps, those that don’t learn from history ARE doomed to repeat it.  What lessons are you learning?

Jewish Rite Nearly Starts Rumania Riot

Police Force Brought Out When Gentiles Protest Community Action

(Jewish Telepgraphic Agency)

BUCHAREST, Feb. 13. — The combined efforts of all the members of the police force of Dej. Transylvania were required today to quiet disturbances which arose when the Christian population of the town protested against the execution of a Sabbath duty by the Jewish community of Dej.

When the members of the Jewish community appeared in the streets carrying wire to be used in partitioning toff a part of the town for the purpose of establishing an “eyrev” for the Sabbath, the Christian population began a demonstration, inisting that the “eyrev” symbolizes Jewish possession of the township.  The demonstrators marched through the streets of the Jewish quarters, breaking windows and damaging the house of the Jewish community president.

Although the police of the town, which is predominantly Jewish succeeded in establishing order, excitement still continues in the atmosphere.

(According to Jewish custom, which prohibits the carrying of articles on the Sabbath, except in one’s own home, an “eyrev” — or wire surrounding a district where things may be carried — can be fixed to poles surrounding the district.)

Source [JTA]:

Jewish Daily Bulletin 1934-02-14

Mahwah, NJ: Bigotry Without Contrition

Mahwah: A “Special Meeting” has been scheduled for January 25th at 10am.  The purpose of the meeting is to go into Closed Session to discuss: Litigation.
As the next scheduled Mahwah Town Council meeting is 2/8, it would appear this special meeting is the Council’s last chance to settle claims against them before the Court imposed deadline.

On January 12th, the Townships’ Counsel, Cleary Giacobbe sent a letter to Court indicating they needed an extension of the time to answer the complaint because “the parties are in the process of engaging in settlement discussions that would resolve this entire matter”.

The Court extended Mahwah’s time to answer the complaint until January 31st (the Judge indicated that it was being extended “for the last time”).

As the legal actions begin to wind down, in favor of the Eruv Association, the Township Council remains, as defiant as ever.

The Bigotry Started With Complaints

Earlier this spring, some residents noticed Hasidic Jews hanging out in local Mahwah Township parks.  Almost immediately, cries were heard about “overcrowding” and “other people”.

Local Leaders Responded to the Bigoted Mob

Local political leaders were swift to act.  Ordinance 1806 came first.  The letter of the law banned non-NJ residents from enjoying the amenities in local parks.  But it was in the application, where the truly pernicious nature became readily apparent.  The restrictions only applied to certain non-residents.

As I wrote back in August:

You can’t only apply laws to certain people (e.g. Jews from Rockland County), and not an out of state Grandma with her Mahwah resident grand-kids.  That would be unequal treatment under the law for which the cops could be liable to scrutiny and legal action for selective enforcement.  From a municipal perspective, the last thing anyone should want is another easily winnable lawsuit because of a poorly drafted ordinance.

But as you can see below, this is exactly the kind of situation the council created when they enlisted the lawyers to draft Ordinance 1806.

To be blunt: Mahwah’s Mayor, Council President and the rest of the Council designed and enacted an ordinance that prohibited Jews from crossing the adjacent NY border to use the parks in their town.  They exempted the non-residents they liked and declared the rest, verboten.

Township Administrator Identified Problems With Enforcement

Prior to ordinance 1806 going into effect, there was ample evidence that it was problematic.  The township’s business administrator, Quentin Wiest, had inquired and was explicitly told as much from Jerry Giaimis, the administrator of Saddle River.  Mr. Giaimis even referenced the NJ Court opinion it would violate.  Yet, thinking they would be able to get away with it, Ordinance 1806 went into effect… almost.

Chief of Police Identified Problems With Enforcement

A few days before it was set to take effect, the Chief of Police, James Batelli, wrote a letter to the governing body, following up on his previous email, outlining concerns he had about enforcement of the parks ban.  He stated that he would not be able to enforce the ordinance.  Sending men with guns to ask Jews for their papers wasn’t going to happen in Mahwah under Chief Batelli’s watch, no matter what the Council had to say about it.  The police must abide by the Law Against Discrimination and must uphold the protections of the State and Federal Constitutions.

In his July 24th letter, Chief Batteli stated in part:

“I have expressed my concerns to the Township governing body and the Township Attorney about the enforcement of this Ordinance and how the actions of Officers trying to enforce the Ordinance may violate bias based profiling guidelines (see attached correspondence)…”

“The Ordinance does not provide any neutral criteria for Officers to use as a basis for their actions…”

“The Ordinance essentially leaves our officers little other choice other than to ask for identification for no reason or for impermissible reasons and opens the door for civil based litigation and/or Internal Affairs complaints”.

“It has also been observed the elected officials have been commenting on social media about both the ERUV installation and the park and playground restrictive Ordinance in the same post which could bring into question the motivation and agenda behind the Ordinance which our Officers are expected and tasked to enforce… an argument or foundation could be made that any attempt to enforce this Ordinance is discriminatory and based to target a protected class.”

“Our agency trains and instructs our Officers on a routine and regular basis on what constitutes bias based profiling and that we explicitly prohibit and will not condone or tolerate illegal profiling by any of our members.  This Ordinance that we will be asked to enforce in four days seems to fly in the face of what we instruct our Officers as there is no discernible means of ascertaining the residency of a park user.”

Mahwah Council Attacked The Police Chief

The reaction from Mahwah was as swift as it was pointed —  Mahwah’s Council President stated he wanted to look into disciplinary charges in an explosive 1am email and Ordinance 1811 was introduced, which would create the position of “Police Director”. This new ordinance would replace the top law enforcement official (the Chief of Police) making him subordinate to a civilian police director, appointed by the council.

The unmistakable message: Listen Chief, if you won’t act the way we want, we have ways of making your life miserable.1

Bergen County Prosecutor Confirmed Problems With Enforcement

In response to threats from Robert Hermansen and the Council, the Chief of Police sought advice from the Bergen County Prosecutor, Gurbir Grewal (Mr. Grewal is now the NJ Attorney General, appointed by Gov. Murphy).  Mr. Grewal came to the same conclusion as Chief Batelli.

In a letter sent to Mahwah’s Council dated July 27th, Mr Grewal stated in part:

“I concur with your observations concerning the Ordinance [that enforcement may violate the constitutional rights of individuals using Mahwah parks]  and agree that its enforcement raises serious legal issues… the Ordinance raises numerous constitution concerns… it provides no neutral criteria for MPD officers to utilize when deciding to detain an individual… it’s enforcement would violate the Fourth Amendment‘s proscription against unlawful searches and seizures.  Indeed, in Barkawi v. Borough of Haledon, the Appellate Division affirmed the trial court’s invalidation of a similar ordinance excluding non-residents.” [ed note: Haledon was the same action, cited by the administrator of Saddle River in response to Mahwah’s inquiry about similar rules in other municipalities].

“Second, enforcement of the Ordinance may violate the Directive prohibiting racially-influenced policing.”

Mahwah Council Continued Attack On Civil Rights With Additional Restrictive Ordinances

The reaction from Mahwah was, again, as swift as it was pointed.  The Council continued to create bigoted ordinances.  Ordinance 1812 aimed at creating an identical ordinance that neighboring USR was using to prevent Hasidic Jews from putting up an eruv in the Township.

Then came the “No-Knock Ordinance” amid unfounded cries from the mob that Jews were lugging around suitcases of cash, ready to “block-bust” their way into the neighborhood.

Then came the do’s and don’ts for activities in parks, banning activities as benign as playing ball or leaning a bicycle against a tree.

The Bergen Record’s Alfred Doblin described the situation:

“Mahwah residents and their elected governing body are creating a body of evidence that shows the fight against the eruv is not about zoning, but about Orthodox Jews. That a no-knock ordinance is not about door-to-door solicitations, but about Orthodox Jews. That a proposed ordinance that would ban nearly 40 new activities in the town’s 10 parks, including the egregious tree climbing, is about Orthodox Jews.”

When Mayor Laforet stood up against the ordinances (which it was later revealed that the Township attorney advised not to pass), Mr. Hermansen and the Council took a vote of no confidence in him. Councilman Jonathan Wong said “[Laforet’s] statements have now created a position which can be cited to in light of litigation and subpoenas.”

The Bergen Record from Oct 6th:

“The mayor didn’t need to go on television for state officials to figure that out.”

“The fight against the eruv, the out-of-state park ban, public comments from residents about “these people” — and worse — show that at least a vocal minority of residents and the council don’t want Orthodox Jews in their town. The reasons don’t matter. Religious discrimination is never justifiable.”

The council may have claimed the no-confidence vote had to do with an interview Laforet gave, but the pattern was crystal clear.

The unmistakable message: Listen Mayor, if you won’t act the way we want, we have ways of making your life miserable.  All the while, rhetoric in the council chambers remained antagonistic to Jews.  Jewish speakers calling out against the ordinances would be shouted down by the Mr. Hermansen and were not permitted to finish a thought without interjection.

State Of New Jersey Confirmed Enforcement and Constitutional Problems: Lawsuit Filed Against Mahwah And Council

Having seen enough, the Republican Appointed Attorney General, Christopher Porrino filed a Civil Rights Lawsuit against the Township as well as against the Council Members themselves.  The suit cited the enactment of Ordinances he described in a statement as:

“influenced largely by vocal anti-Orthodox-Jewish sentiment expressed by some residents at public meetings and on social media, engaged in unlawful discrimination aimed at halting an unwanted “infiltration” by Orthodox Jews – particularly from neighboring Rockland County, NY.”

“In addition to being on the wrong side of history, the conduct of Mahwah’s township council is legally wrong, and we intend to hold them accountable for it,” said Attorney General Porrino. “To think that there are local governments here in New Jersey, in 2017, making laws on the basis of some archaic, fear-driven and discriminatory mindset, is deeply disappointing and shocking to many, but it is exactly what we are alleging in this case. Of course, in this case we allege the target of the small-minded bias is not African-Americans, but Orthodox Jews. Nonetheless, the hateful message is the same.”

“This is an extensive complaint … but the bottom line is very simple — the township council in Mahwah heard the angry, fear-driven voices of bigotry and acted to appease those voices”.

Mahwah Continued to Attack Mayor Laforet And Anyone Standing Up For Constitutional Rights

Facing two civil rights actions for discrimination, Mahwah continued to demand efforts to protect Mahwah’s way of life.  Robert Hermansen himself referred to groups he tried to exclude as “outside forces… trying to change our current way of life.”

Mahwah Officials Back A Recall

Mahwah is reacting as it has in the past. A recall effort against the Mayor has been launched.  Punishment and threats are what the mob demands of those that stand up to them, in the name of justice and equality.

Since June, when Chief Batelli advised the Township that efforts to restrict parks and create ordinances banning an eruv are unenforceable at best — and unconstitutional at worst, Mr. Laforet has been the only elected member of Mahwah’s government to switch gears, coming out to do the right thing.

And doing the right thing in Mahwah gets you punished.

It got the Police Chief a threat from the Council President in the form of a request for departmental charges and an Ordinance subordinating him to a Police Director.  It got the Mayor a rebuke from the Council in the form a vote of no confidence.  And now, after efforts in the Courtroom have proved unsatisfactory to the hate-filled mob, residents are trying to recall the Mayor from office as the Council is cheering them on from the bully pulpit.

The stated reasons for the Recall include: blatantly lying to the public about his knowledge of planned expansion of non-resident partisan political groups into Mahwah.

They may have just as well said: Jews.

If you didn’t know better, “non-resident partisan political groups” may sound nicer than “Jews“, but in Mahwah, we do know better.  We have seen this play out over months, in their Town Council chambers, by elected representatives, who remain without an iota of contrition or remorse regarding their actions.

The Mahwah Town Council currently has two civil rights suits to deal with.  They have shown absolutely no indication that they understand or care that they have acted inappropriately.

Before any settlement is reached, the respective plaintiffs on the other side of the table, should ensure Mahwah acknowledges the harm they have engendered.  It is necessary because the acrimony continues to reverberate throughout the wider community of Bergen County.

Whether the Council felt it was protecting its residents or way of life is immaterial.  Extremism is still extremism when your heart’s in the right place.

  1. After attacking the Police Chief, the Council decided to honor Chief Batelli for his 39 years of service with a resolution on December 1st.  He didn’t show up to the meeting.  On December 28th, the Council indicated that Judge Carver has been retained to investigate a hostile workplace claim against the township.  Assuming this claim was by the Chief of Police, this issue is far from over.

[Transcript] Federal Judge: 6 Reasons Why USR, Mahwah and Montvale Should Be Trying To Settle Their Eruv Litigation As Fast As Possible

United States District Judge John Michael Vazquez gave his preliminary thoughts about various issues involved in Friedman, et al., v. Borough of Upper Saddle River, at a hearing held on January 9th.  You can read our previous write-up here.

Below is a synopsis of stances the parties have taken, with links to relevant sections of their briefs (where they make their respective arguments).  What follows as “thoughts from Judge Vazquez” has been pulled from the the transcript of last week’s hearing.

6 reasons why efforts to remove the eruv in Upper Saddle River, Mahwah and Montvale seem unlikely to succeed:

1. Enforcement: Consistent or Selective?

USR’s position: USR Borough Ordinance 16-15  is Generally Applicable and Has Been Generally Applied (page 61 of Motion to Dismiss)

Eruv Association’s position: USR’s Selective Enforcement of the Ordinance Violates the First Amendment’s Free Exercise Clause (page 24 of Motion for Preliminary Injunction)

Thoughts from Judge Vazquez: “The town has said they’ve had a history of enforcement of the ordinance. They essentially say it’s always enforced. They have specific training for the police officers; they have officers on patrol.

However, there were several violations of the ordinance which somehow the town was not aware of until the plaintiff pointed it out in their filings. Some of them were lost pet signs, which the Court understands can only be up for a relatively short period of time. But others were permanent fixtures, such as mailbox [sic]. And if the town did do proper training and they had police officers on patrol, the Court has concerns over the town’s claim that they were always enforcing this ordinance before the plaintiffs brought these violations to the town’s attention.” (page 14 of hearing transcript)

“Subsequently Preusch learned from counsel that they needed approval of the governing body. This also causes concern to the Court, with the town’s claims that everyone knew about the ordinance and was enforcing it, because it doesn’t appear that anybody who was charged with enforcing the ordinance knew about it.” (page 16 of hearing transcript)

“The town says while the Chief did not authorize or condone them putting up the eruv, but 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. After the plaintiffs did the contractor road construction form on June 20, 2017, it was voided. Not immediately, but approximately one month later.  Again, to the extent the ordinance was always being enforced, it certainly cuts against that argument. Because it seems as though it took somebody about a month to realize that they were going to stop the construction pursuant to the ordinance.” (pages 16-17 of hearing transcript)

2. Validity of License Agreements:

USR’s position: Plaintiffs’ Do Not Have a “Valid” License (page 67 of Motion to Dismiss)

Eruv Association’s position: USR’s Technical Challenges to Plaintiffs’ Licenses Are Misplaced (page 15 of Plaintiffs Opposition to Motion to Dismiss)

Thoughts from Judge Vazquez:  “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 in this case do not appear to fit within those definitions.” (page 4 of hearing transcript)

3. Constitutionality / Ambiguity of USR’s Ordinance

USR’s position: Ordinance 16-15 is not Unconstitutionally Vague (page 64 of Motion to Dismiss)

Eruv Association’s position: The Ordinance is Constitutionally Vague (page 46 of Opposition to Motion to dismiss)

Thoughts from Judge Vazquez: “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.” (page 9 of the hearing transcript)

4. Applicability of State Statute NJSA 48:3-19

USR’s position: Municipal Consent Is Required (pages 68 – 74 of Motion to Dismiss)

Eruv Association’s position: N.J.S.A § 48:3-18 – Which USR Ignores – Expressly Does Not Require Municipal Consent (page 21 of Motion for Preliminary Injunction)

Thoughts from Judge Vazquez:  As to N.J.S.A. 48:3-19, concerning the consent of the municipality, which shall be obtained for the use by person of poles of another person, unless each person has a lawful right to maintain poles in such street, highways or public places relied upon by the town, I could not find one case to interpret that statute. Not one. And it’s been on the books, I think it was last modified in the 1960’s. I didn’t see it mentioned in Tenafly. And that would require a lot more work on behalf of the Court before I determine whether that applies or not. And, truthfully, as the parties rely upon it, defendants did not submit sufficient information to show that it applies. (page 10 of the hearing transcript)

5. Does The Discriminatory Intent Of The Council Matter?

USR’s position: Discriminatory Intent is Legally Irrelevant and Not Present Here (page 53 of Motion to Dismiss)

Eruv Association’s position: USR Is Wrong That “Discriminatory Intent Is Legally Irrelevant”. (page 40 of Opposition to Motion to Dismiss)

Thoughts from Judge Vazquez: “[Defendants] 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.

I looked to the town ordinance history. I will give you what my concerns are. Because I think the plaintiffs have raised real concerns about a discriminatory intent in invoking this law, and that the effect was to only harm the plaintiffs.” (page 11 of the hearing transcript)

6. What was the purpose of Ordinance 16-15?

USR’s position: The primary impetus of the ordinance was the proliferation of political signage (pages 15-17 of Motion to Dismiss)

Eruv Association’s position: The evidence shows that USR’s Borough Council passed the Ordinance with the specific, discriminatory intent of targeting the eruv. (page 21 of Motion for Preliminary Injunction)

Thoughts from Judge Vazquez: “Importantly, as I noted, they already had ordinances to address the political signage, which they said is the stated reason for the new ordinance. That doesn’t make any sense to me.  If you already have one that — if the problem is signs and you already have an ordinance for signs, it doesn’t make sense to me you have to amend it for other things other than signs. And they added the word “device.” Which I didn’t see any issue from the town that they were having problems with devices before, but now that seems to be one of the main issues for the town, is that the eruv constitutes a device under this ordinance…. And it’s not lost on the Court that to the extent that O & R complained in 2015 about political signs, it’s the same group that granted the license to the plaintiff eruv in this case. So to the extent they were complaining about political signs, the facts seem to show they were in agreement with the eruv.” (pages 13-14 of the hearing transcript)

Why this is applicable to other Towns:

The reason that the Township of Tenafly lost their case, a decade ago, was because the court found, in part, they inconsistently enforced their ordinance against some, but not all items, placed on utility poles.

In the Upper Saddle River action, Judge Vazquez seems to make the argument, that the very fact that the Township administration approved and the police monitored, the installation of the lechis, it is evident that they a) hadn’t considered the lechis a violation of the ordinance or b) didn’t consistently enforce the ordinance.

This is a situation that has been seen in Mahwah and Montvale as well.

In the Mahwah eruv litigation, the Mayor issued a statement that “[a]dvice by our attorneys is that we cannot do anything about the installation of these plastic pipes on these utility poles establishing a ERUV” and “BPU and O&R are obligated to allow these ERUV markings, But they have NO OBLIGATION to notify the municipality” (emphasis in original).  The plaintiffs also paid for Township police to be present at the installation of the lechis on multiple occasions (see invoices here).

Both the administration and the police department, when dealing with an application for an eruv, treated it like they would any other permitted use.  They didn’t know that the eruv was not permitted, which indicates that the ordinance cited was not being consistently enforced.

In the Montvale eruv litigation, the Borough’s Mayor issued a statement indicating that “[a]bsent any compelling safety concerns, there is little role for Montvale to play in what amounts to a private negotiation between Orange and Rockland and the community that requested the eruv”.  The plaintiffs also paid for Borough police to be present at the installation of the lechis on multiple occasions (see invoices here).

Again, if the Township’s own Mayor and Police Department treated this as an appropriate and permissible application, it’s clear they didn’t know that the eruv would be banned per the ordinance cited.  They cannot, now turn around and claim that the Borough has always and consistently enforced the ordinance.

Montvale, as reported via the Bergen Record, has been in negotiations with the eruv association regarding a settlement.
Mahwah filed for an extension to submit their response to the complaint until January 31st in contemplation of settlement.
USR has postponed their Motions to Dismiss and for a Preliminary Injunction until February 7th, in contemplation of settlement.

There is currently no update or change in the suit by the State of New Jersey against the Township of Mahwah and the Mahwah Council.

All case documents cited can be found at the respective links.

You can find all of the documents filed here: http://www.eruvlitigation.com/home/federal-litigation/upper-saddle-river/

The Transcript from the hearing of January 9th can be found below:


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

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.

Preliminary Injunction


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.

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 Eruv Litigation Moves To The Courtroom

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.

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.”

[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

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.

[UPDATE] Sticker shock: The reality of litigation costs start to arrive in time for the holidays

[UPDATE – new appropriations have been added to the agenda for tomorrow]
[UPDATE #2 – This email chain shows that while the current litigation contract ($50,000) goes through January, 2018, the next contract is already being prepared]
A mere several hundred have packed Town Council chambers since early this spring, demanding that ordinances be enacted to prevent an Eruv (see our FAQ here for information about an Eruv) from being established in a small section Upper Saddle River, Mahwah & Montvale (see map here).  That is a fraction of the approximately 40,000 people currently living in those Bergen County towns, which are now embroiled in litigation. Read More