A game of tossing around blame has begun in Jackson Township.
Agudath Israel, currently suing Jackson over bans on eruvs, schools, and dormitories, lobbed the first flaming spud last week with a letter blaming the township for unilaterally scuttling the results of over a year of negotiations. The letter to Judge Douglas Alpert, overseeing the case, alleges that the two sides came to an agreement in December that Jackson then ignored and discarded.
Jackson and Agudath Israel were ordered to mediation in August 2017. A few months later, in November 2017, both parties signed a preliminary settlement bringing litigation to a standstill. Jackson would allow an eruv on utility poles while the plaintiffs would not file any motions in court and would “discourage OPRA demands” on Jackson. According to court dockets, since then the parties have met and updated the judge almost monthly as settlement talks progressed on the other matters in the lawsuit.
If one side was to be seen as acting in bad faith, this could definitely raise the ire of the judge who has been spending time on this case for a year and a half. This is exactly what Agudath Israel’s letter suggests, that Jackson participated in negotiation solely to delay the case and seemed to agree to a settlement only to pretend that it never happened. Jackson has yet to throw the blame back, but there is a hearing on March 13th to discuss next steps in the case.
If this sudden turnaround by the township seems surprising, it may actually be a deft political move by Mayor Mike Reina and Council President Rob Nixon. After an election season where everyone was trying to paint each other as being cozy with Orthodox Jews, they may have decided that seeming to support a settlement with Agudath Israel in public would be career suicide.
Possibly Jackson’s politicians felt that any political damage to themselves could be avoided by having a judgement forced on them by the court. Even if the final terms end up worse than those in the settlement they agreed to in December (the judge could, for instance, throw out the ordinances entirely), the Mayor and Council can then point their fingers at Agudath Israel and say they had no choice: “we have to follow what the judge says”. So what if the town ends up with a few more schools or more permissive zoning, they have saved their jobs. Hurrah!
Where it stops, nobody knows
Jackson’s taxpayers have paid little thus far, as Jackson has been using attorneys provided by their insurance. The township’s “free” law firm, Marshall Dennehey Warner Coleman & Goggin, is a large multi-state firm with departments that specialize in RLUIPA litigation. According to his bio, the lead attorney representing the township, Howard Mankoff, “in a precedent-setting decision before the Third Circuit, successfully argued that a municipality can exclude houses of worship in order to facilitate economic redevelopment.”
The hot potato has just been passed to them though. On February 26th, Jackson agreed to pay $800 per hour to hire another lawyer, self-proclaimed RLUIPA expert Marci Hamilton, for a minimum of 20 hours. Jackson’s insurance will not be covering this extra expense: the policy covers damages up to $1 million in court and provides that the insurance firm may hire a lawyer to defend the township (the expense of which comes out of Jackson’s final claim), but explicitly states that “No other obligation or liability to pay sums or perform acts or services is covered.”.
The new lawyer contract is open-ended, and if this case heads back to court then the sky is the limit on how many hours might be billed at taxpayer’s expense. Aside from these new costs, if Jackson loses, the penalties and attorney fees (including those of Mr Mankoff and those of the plaintiff which can be awarded in RLUIPA cases) could easily surpass the $1 million dollar insurance limit. Further complicating things, there is the possibility that the NJ Attorney General and the US Department of Justice will step back in, both having subpoenaed township officials over this case in the past.
But take heart, this is all in service of a noble cause: lessening the political blow-back on Reina and Nixon.