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:
- Enjoin the municipality from removing the Eruv during the litigation.
- Enjoin the municipality from disrupting / preventing maintenance of the Eruv or restoration of damaged sections.
- 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.