Ocean County Superior Court Judge Francis Hodgson this Friday ordered Jackson Township's attorneys to welcome in to their Town Hall representatives from the New Jersey Attorney General's Office so they can review and copy documents related to anti-Semitism claims involving Shuls, Sukkahs, and Eruvim.
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 will 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 (NsTP - Notices to Produce). The state responded in a timely fashion to Jackson's requests. Jackson Township, however, in all this time, has yet to respond to all of the state's interrogatories and document requests, which has delayed and obstructed the discovery process of the case.
The State's interrogatories and document requests include the following:
Interrogatory 3 demands:
"Identify and Describe any actions Jackson Township, its officials and employees have taken to address and/or combat anti-Semitism and/or animus towards Orthodox Jewish people."
NTP 4 similarly demands:
"All Documentation and Communications Concerning any actions Jackson Township, including Township officials, the mayor, council members, Committee members, Municipal officers, administrators or employees have taken to address and/or combat anti-Semitism and/or animus towards Orthodox Jewish people.
Interrogatory 12 demands:
"Describe your process(es), including any relevant Code Provisions and zoning requirements, to receive and investigate complaints regarding: (a) shuls, houses of worship, and religious gatherings; (b) temporary and/or accessory structures, including Sukkahs; and (c) eruvim, encumbrances, and other prohibited items or objects prohibited items or objects in the public right of way. Identify all persons responsible for conducting, administering, and overseeing such investigations and enforcement during the relevant time period. In addition, provide any Policies governing any such process."
Interrogatory 17 demands:
"Describe all of your permitting and other requirements or criteria with regard to applications for temporary and/or accessory structures, including but not limited to Sukkahs. Include any relevant Jackson Code provision(s), zoning requirement(s), and other Policies, whether official or unofficial, governing these requirements and criteria and provide the date(s) of any changes to these requirements or criteria from January 1, 2011 to the present. In addition, describe whether this information is publicly available and if so, where it can be found."
NTP 18 demands:
"Any and all Documents and Communications Concerning notices of violation, including copies of each notice of violation, issued by the Township between January 1, 2011 to the present with respect to Sukkahs and the disposition of such notices of violation."
As a result of Jackson Township's continued failures to respond as court-ordered, as first reported here on FAA News, 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. Mr. Pohlman is now working alongside Attorney Gregory 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 calmed things down by responding 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.
At a hearing held on July 29th, Judge Hodgson held off from deciding on the Attorney General's Motion, and carried that to Friday, August 26th. However, the judge did direct the parties to schedule a 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.
As previously reported here on FAA News, at the September 23rd hearing, 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?"
Judge Hodgson directed the parties to meet and confer to "determine and identify outstanding discovery that is either pending turnover, or being objected to", and to keep the discovery process flowing, and to return to court for a continued hearing on Friday October 7th.
Last Thursday, October 6th, Deputy Attorney General Eve Weissman, wrote to Judge Hodgson:
"Counsel for all parties met-and-conferred on September 29, 2022 to discuss and identify items within the two categories delineated in the September 23 Order. On September 30, 2022, the undersigned sent defense counsel an email memorializing what we discussed at the meet-and-confer and asking them to let us know by Tuesday, October 4 if they disagreed with anything written therein. Our September 30 email identified fifteen Notices to Produce (NsTP) and five Interrogatories (ROGs) in category one: pending turnover, along with one NTP and three ROGs in category two: being objected to, such that judicial intervention is warranted.
"At the time of this filing, defense counsel has not raised any objections to the items we identified as outstanding at the September 29 meet-and-confer and September 30 follow-up email.
"Defense counsel did ask to speak with us on October 4, at which time they provided some information relevant to one outstanding item, ROG 19. On that call we requested, as we had on September 29 and 30, that they provide this information in writing. They have not yet done so.
"Because defense counsel has not objected to the items we identified as outstanding per the September 23 Order, we understand Defendants to agree that documents and information are pending turnover on the following: NsTP 7, 11, 13, 15-18, 21-23, 27, 30-31, and 34-35 and ROGs 13-15 and 18-19. We note that such documents and information were also outstanding at the time of the September 23 hearing, at which we understood defense counsel to represent, inaccurately, that they had furnished all but one outstanding item. In light of the ongoing difficulty Plaintiffs are facing in obtaining delinquent discovery, we respectfully submit that more robust court supervision and involvement in the discovery process in this matter would be both helpful and warranted.
"Additionally, Defendants’ responses and objections to four of Plaintiffs’ requests – NTP 4 and ROGs 3, 12, and 17 – are improper and evasive. As explained in the September 30 email, NTP 4 and ROG 3 seek documents and descriptions of Defendants’ actions to address or combat anti-Semitism, ROG 12 asks about Defendants’ processes for receiving and investigating various types of complaints at issue in this case, and ROG 17 asks about permitting and other requirements for erecting temporary accessory structures. We have met with defense counsel and discussed these four requests and what we view as Defendants’ improper responses numerous times in an effort to address and resolve such issues. It appears we have reached an impasse and that court intervention is warranted here as well. Given Defendants’ repeated and ongoing failures to comply with both mutually agreed-upon and court-ordered discovery deadlines in this case, Plaintiffs respectfully ask that Your Honor assist us in addressing these four disputed requests at tomorrow’s hearing.
"Lastly, we respectfully note that Plaintiffs’ pending motion seeks attorneys’ fees from Defendants covering attorney time spent preparing and filing the instant motion, and communicating with Defendants to obtain delinquent discovery. As discussed in our June 15 Letter Brief, these rules give trial courts substantial discretion to address and penalize a party’s failure to comply with discovery orders. We also respectfully submit that suppression of Defendants’ Answers is warranted as Defendants do not seem to dispute that documents and information concerning fifteen NsTP and five ROGs is well overdue."
At the hearing on Friday morning, the Attorney General's Office was represented by Deputy Attorney General Eve Weissman, and Jackson Township was represented by attorneys Brent Pohlman, Gregory McGuckin, and Sean Gertner.
Ms. Weissman opened the hearing by quoting her previous letter of correspondence to the court, saying, "we met over the outstanding issues, and we still have not yet accomplished anything. We meet for hours, agree on deadlines and watch those deadlines pass until just before the court hearings which is when they respond claiming that they have fully complied with everything. As such we move on our motion and request further court involvement in the discovery process so we can keep it moving forward constructively.
"At the last hearing they claimed to fulfill everything besides for 1 discovery request item. That is not true. In our recent letter to them we identified 15 NTP's and 5 interrogatories for which they had promised material but did not yet furnish. Additionally, for 1 ntp and 3 interrogatories their answers are evasive and improper, such that court intervention is warranted.
"Yesterday, in response, they responded with a bunch more documents, and then claimed that they have now answered everything but 1 item.
"We disagree. As is their pattern, they supplemented only the NTP's, however these responses are still incomplete and only partially responsive. We feel that they have still not answered 2 NTP's, and that a number of the responses were responses which they already gave and those are incomplete answers.
"Regarding NTP 18, (Sukkah violations) they now claim no such documents exist. However, they have previously sent us emails of Jackson officials discussing these violations. In other words, their answers are incomplete and contradictory.
Mr. Pohlman then took the podium.
He stated, "This is a politically motivated case and they are trying to trump up conflict by claiming that we are being uncooperative. We conferred last Friday. We then met with the Township. We again conferred on Tuesday and shared the information that we obtained from the Township.
"As to most of the 15 NTP'S and 5 interrogatories, they want many permit requests and variance applications, documents which are unrelated to the specific claims of the Lawsuit. Therefore, we won't provide the documents to them, as it is burdensome and unfair to us, however, because we are a government entity and the documents are subject to OPRA anyways, they are welcome to do an on-site investigation, review and copy any documents they want, however, not once have they told us when they want to come."
Ms. Weissman retorted, "After our hearing in July, we requested that they facilitate an on-site investigation. They agreed to allow us to review documents on site. We asked if we can use a copier. They say they would "need to get back to us". They also told us that the files are in 4 buildings. We asked them to identify what documents are where so we can plan logistics accordingly. Either way, these documents only apply to 5 NTP's, not to all of them."
Mr. Gertner agreed to bring all the documents into one room which will have a copy machine.
Judge Hodgson ordered the parties to agree - within 7 days - on a specific schedule of dates for the Attorney General's Office to visit Jackson Township for an on-site inspection.
Ms. Weissman stated, "Judge, we will need you to continue to stay involved [to ensure we do receive the documents we are seeking] because without your involvement, we are going in circles because they keep claiming that they don't understand what we are asking for. I am therefore skeptical that they will in fact produce all the documents that we are asking for."
Judge Hodgson responded, "I will ask everyone to suspend their skepticism. I'll stay involved and we will continue to meet every few weeks."
Ms. Weissman also discussed Interrogatory 3 and NTP 4, which seek the actions which Jackson Township officials have taken to combat anti-Semitism in their town.
Jackson's attorneys previously objected to this question, arguing that if they provide any answers they will be "admitting that anti-Semitism exists in their town".
Mr. Pohlman responded, "that impasse will continue because this is a politically motivated lawsuit and if we respond with anything other than an objection, the State and others will use this against us and say "you've done this by not that".
Mr. McGuckin added, "we provided over a hundred of pages of cases where we investigated bias complaints. There is nothing further that we will respond at this time."
Mr. McGuckin continued, "we have already adopted a policy that our employees are required to act in certain ways, and we adhere to this. If an individual has his own anti-Semitism claims against any specific individual, let them go sue them. We won't stop them."
Ms. Weissman pushed on, "we are not asking them to admit that anti-Semitism exists in their town, as that is already well documented including before this court. If their response is that they have taken no action, then why did they object, instead of just answering that they already provided an answer?"
Judge Hodgson directed the Attorney General's Office to deal with Jackson Township's refusal to answer by "engaging in motion practice, and possibly a deposition".
Ms. Weissman then discussed Interrogatories 12 and 17 which request the processes, including any relevant Code Provisions and zoning requirements, to receive and investigate complaints regarding shuls, Sukkahs, and eruvim. Jackson Township has not sufficiently responded to these Interrogatories.
Ms. Weissman stated, "instead of responding with their ordinances and code provisions and who the employees are, they responded by telling us to go read their laws."
Mr. McGuckin responded, "we don't investigate shuls. We investigate complaints - that may be an illegal use, or a parking issue. When they tell us what exactly the complaint is, we will tell them whether that's a zoning officer issue, code enforcement officer, or police department."
At the conclusion of the hearing Judge Hodgson signed an order directing the parties to agree - within 7 days - on a specific schedule of dates for the Attorney General's Office to visit Jackson Township for an on-site inspection, and permitting the Attorney General's Office to file a Motion to compel Jackson Township to provide more appropriate responses to the still incomplete NsTP and Interrogatories. To protect Jackson Township's interests, the responses can be provided under "protective order".
The parties will return to Judge Hodgson later this month for a continuation of the motion hearing.
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