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Ocean County Superior Court Judge Francis Hodgson had some choice words for attorneys representing the Jackson Township Council and Planning and Zoning Boards, over their delay in complying with court orders to produce certain documentation related to a lawsuit filed by the New Jersey Attorney General alleging Discrimination against Orthodox Jews.

Back in April 2021, the Civil Rights Division within the Office of the New Jersey Attorney General filed a civil rights lawsuit in Superior Court in Ocean County, alleging that Jackson Township authorities, through ordinances and enforcement actions, violated the New Jersey Law Against Discrimination by using their zoning powers to regulate land use and housing and make it harder for Orthodox Jews to practice their religion and to deter them from moving there.

The State’s complaint alleges the Jackson’s adoption of discriminatory zoning ordinances and enforcement practices was motivated in part by officials’ desire to appease Township residents who reacted to the Township’s growing Orthodox Jewish population by expressing hate and fear on social media, in complaints to Township officials, and in public meetings.

First, Township officials allegedly engaged in targeted and discriminatory surveillance of the homes of Orthodox Jews suspected of hosting communal prayer gatherings. Jackson’s zoning code requires permits for places of worship, but there are constitutional limits on municipalities’ ability to use their zoning authority to restrict the free exercise of religion, and government officials cannot discriminate on the basis of religion.

Second, the complaint alleges that Jackson Township officials engaged in discriminatory application of land use laws to inhibit the erection of sukkahs by the Township’s Jewish residents, particularly in their front yards.

According to the complaint, after residents began to question and complain about the appearance of sukkahs, Jackson Township officials modified their interpretation of a local ordinance to effectively prohibit sukkahs in front yards. The complaint alleges that the Township’s new enforcement policy discriminated against Jewish residents.

Third, Jackson officials allegedly discriminated against Orthodox Jews by enacting zoning ordinances in 2017 that essentially banned the establishment of yeshivas and dormitories.

Fourth, the complaint alleges that Jackson discriminated against Orthodox Jews by enacting a 2017 zoning ordinance that targeted and effectively banned the creation of eruvim.

The State’s complaint asks the court to find that each of the challenged zoning practices violates the Law Against Discrimination, to issue an order prohibiting Jackson Township’s discrimination against the Orthodox Jewish community, and to impose civil penalties, among other relief.

(This lawsuit is separate from, and unrelated to, the federal Religious Land Use and Institutionalized Persons Act (RLUIPA) and the Fair Housing Act (FHA) lawsuit settled earlier this year between the Jackson Township Council and Planning Board and the U.S. Department of Justice.)

In July 2021, Attorney Sean Gertner on behalf of Jackson Township filed a Motion to Dismiss, claiming simply that Jackson's zoning laws do not specifically exclude and discriminate against Orthodox Jews, rather "all places of worship" often “pose concerns to public safety, health, and welfare” when the location is not appropriate, and that the township “routinely” considers issues such as parking, emergency access, and ingress / egress when considering applications for any House of Worship, regardless of religious denomination.

The Attorney General's office opposed this motion, and ultimately, in November 2021, Judge Hodgson denied the motion and ordered Jackson Township to file a complete response to the lawsuit.

Typically in legal processing, the court holds a case management between the attorneys for all sides and sets a timeline in which sides have a discovery process. This is the formal process of exchanging information between the parties about the witnesses and evidence they ll present at trial. Discovery enables the parties to know before the trial begins what evidence may be presented.

On February 4, 2022, the Court held a case management between the attorneys for all sides and ordered all parties to; a) propound document requests and interrogatories by February 17, 2022; b) answer document requests by March 24, 2022 and interrogatories by April 18, 2022; and c) complete fact and party depositions by September 15, 2022.

Both parties timely propounded interrogatories and document requests. The state responded in a timely fashion to Jackson's requests. However, in all this time, Jackson Township has yet to respond to all of the state's interrogatories and document requests, ultimately delaying and obstructing the discovery process of the case.

As a result of Jackson Township's continued failures to respond as court-ordered, in June, the Attorney General's office filed a formal Motion to enforce the Court’s prior discovery deadlines, enforce litigants’ rights, suppress Defendants’ Answers without prejudice, and for any and all other just and appropriate relief including, but not limited to: (a) requiring Defendants pay reasonable attorneys’ fees and expenses, covering attorney time spent preparing and filing the current Motion and attorney time spent communicating with Defendants to enforce the prior Court Orders; (b) holding Defendants in contempt; and (c) barring certain objections to Plaintiffs’ Requests, including, but not limited to, objections to the date parameters of such requests.

A court may find a violation of litigants’ rights where it is satisfied that the offending party’s actions were willful and unjustified.

After feeling the heat of this motion, Jackson Township retained Attorney Brent R. Pohlman of Mandelbaum, Barrett PC as special, additional counsel to represent them on this case. This attorney is now working alongside Attorney Gregory P McGuckin of Dasti, Murphy, McGuckin, Ulaky who represents the Township Council and Attorney Sean Gertner of Gertner and Gertner who represents the Planning Board.

On June 30th, Mr. Mandelbaum responded that he has been in communication with representatives of the Attorney General’s Office in an effort to identify, collect, and produce the requested relevant documents, and they have produced approximately 60,000 pages of discovery of meeting minutes, audio recordings of meetings, ordinances, resolutions, code enforcement documents, permits, and some of the requested land use application documents which were requested by the Attorney General’s Office as part of the discovery process.

Mr. Mandelbaum continued that "Defendants are not objecting to the production of the remaining land use files, rather we have advised Plaintiffs that these files are very voluminous and may contain documents which Plaintiffs are not seeking. Defendants are awaiting Plaintiffs to identify the specific portion or documents within each file that they are seeking to be produced."

"The Defendants are on track to provide all of the responsive materials within 4-6 weeks. The Defendants intend on working together with the Plaintiffs in good faith to expedite and finalize this paper discovery process.

"Accordingly, the Defendants request that the Court deny Plaintiffs’ Motion", Mr. Mandelbaum concluded.

Judge Hodgson held a hearing on July 29th. Judge Hodgson held off from deciding on the Attorney General's Motion, and carried that to Friday, August 26th, and directed the parties to have their own conference before that date and see how they can work together to keep the document production process flowing.

On August 10th the parties did meet, and they also scheduled a follow up meeting on August 25th. Hearing promises to produce discovery in a timely manner, on August 25th, the Attorney General's Office sent a letter asking Judge Hodgson to hold off on a hearing on the Motion until September 23rd.

At the hearing last Friday morning, the Attorney General's representative told Judge Hodgson that despite her constant attempts at reaching out to Jackson's attorneys, they keep on ignoring her requests to produce the requested documents and she requested that the judge make a finding of violation of litigants’ rights and order sanctions.

Judge Hodgson again carried the actual Motion, but had some choice words for Jackson's attorneys: "Do I need to keep calling you into the principal's office? Why haven't you produced the requested documents?"

Attorney Gertner responded that he wanted to have an off the record discussion regarding the scope of some of the requested documents.

Judge Hodgson responded that he would carry the motion hearing until next Friday, October 7th and that they could have an off the record discussion prior to the hearing.

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