Back in October, on the orders of Ocean County Superior Court Judge Francis Hodgson, the New Jersey Attorney General's Office paid a visit to Jackson Township's municipal offices to review and copy documents related to anti-Semitism claims involving Shuls, Sukkahs, and Eruvim.
Judge Hodgson has now again ordered Jackson Township to permit representatives from the Attorney General's Office to visit their municipal offices for a continuation of this review, FAA News has learned.
The basis for these document inspections is because of an ongoing lawsuit.
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.
In November 2021, Judge Hodgson denied the motion and kept the litigation going.
Typically in legal processing, the court holds a case management conference 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 conference 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:
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."
NTP 34 demands:
"Any and all Documents and Communications Concerning the zoning of schools under the
2009 revision of the Jackson Township Master Plan."
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.
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, but directed the parties to schedule a conference before that date and see how they can work together to keep the document production process flowing.
As previously reported here on FAA News, at the subsequent hearing held on September 23rd hearing, Judge Hodgson again carried the actual Motion to October 7th, 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?"
On October 6th, Deputy Attorney General Eve Weissman, wrote to Judge Hodgson:
"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.
"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 the next 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 stated:
"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.
"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.
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, and noted that 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 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. The 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 then asked Judge Hodgson to Order Jackson Township's attorneys to permit them to do an on-site investigation of the documents they are seeking, and for Jackson officials to bring all the documents they identified as relevant to their request into one room which will have a copy machine.
Judge Hodgson agreed and 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.
At a follow up hearing held this past Friday, Deputy Attorneys General told Judge Hodgson that they did indeed do a 1-day on-site inspection and they would like an opportunity to do another 2-day on-site inspection as they see that there is still more to investigate.
Judge Hodgson granted their request. The Representatives of the Attorney General's Office are scheduled to do their on-site inspection next week.
Judge Hodgson will also hold another hearing on the matter in another month.
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