Renewed subpoena in the US Department of Justice’s continuing investigation into Jackson
The US Department of Justice continues to request documents from Jackson in an investigation into the township’s land use laws, with a renewed request coming earlier this year. This subpoena came in soon after the mayor and council decided to walk away from an agreed-upon settlement of a lawsuit brought by Agudath Israel over recent laws banning schools and dormitories. The township is also reminded not to destroy any (more) documents:
Both the DOJ and NJ Attorney General started sending subpoenas in 2017, and given that they are still coming in it seems the investigation is proceeding.
After all, they do seem pretty quick to close bogus complaints, like Jackson Township’s claim of “blockbusting”:
Maybe the denial of an application for a house of worship that was fully compliant with Jackson’s zoning laws will spur them into action?
Jackson Township responds to allegations of document destruction.
After OPRA requests revealed that Jackson was deleting emails, a number of parties suing Jackson Township have filed for sanctions and an injunction against them for “spoliating evidence” related to litigation. These include Agudath Israel, WR Property and Oros Bais Yaakov.
Legal Definition of spoliation : the destruction, alteration, or mutilation of evidence especially by a party for whom the evidence is damaging.
Jackson has now responded to these allegations, making two arguments about why the judge shouldn’t act on this. Their response in federal court can be read here, as well as Agudath Israel’s reply to their objections here.
(1) The first argument put forth by the township’s attorneys is that the plaintiffs lack “standing” to do this. That is, they say, because the plaintiffs in this case are not the same people who put in these anonymous OPRA requests, they are not able to ask for any relief based on the responses. Instead the actual OPRA requestors should bring their own lawsuit for OPRA violations in state court if they feel what they requested was improperly destroyed.
It is easy to see why this is a silly argument. Agudath Israel isn’t alleging OPRA violations, but rather violations of federal court rules that require the defendant to preserve evidence. The fact that this was revealed by an OPRA request is not important. Agudath Israel points this out in their reply.
(2) Jackson’s other argument is more convincing: while emails were in fact deleted, their contents were first preserved in PDF format. Therefore, the evidence was not destroyed, only altered. It’s not clear from their response why this was done though (was it to hide information from OPRA requests?).
Agudath Israel’s reply however claims that this is still “spoliation” and has still disadvantaged the plaintiff in this case, and thus should be punished.
In particular, the metadata (electronically stored information or “ESI”) associated with the emails is now gone and only the contents preserved. During discovery, this metadata might be used directly by a third-party to review how thoroughly Jackson responded to requests for documents and as evidence itself that reveals connections between the emails. These kinds of reviews are no longer possible now that the original emails are not on Jackson’s servers anymore.
Also, the plaintiffs claim that Jackson has been coy as to what was deleted, what was backed up, how it was backed up, and whether everything relevant was in fact backed up. They want a judge to help investigate these questions.
Will this be grounds for Jackson to face consequences? State and federal judges will decide soon in separate hearings for each case.
Suit filed to halt 300-acre complex near Six Flags Great Adventure.
In January, the Jackson Board of Adjustment approved the first phase of the Adventure Crossing, an almost 300-acre entertainment, sports and hotel complex planned to border Six Flags.
According to the APP, in addition to a number of fast food restaurants and a medical research facility and housing, attractions will include:
a 120,000-square-foot indoor sports dome
two hotels
eight outdoor sports fields
an 100,000-square-foot indoor recreational building with a trampoline park, indoor go-kart racing, and an area for video game competitions.
However, a number of neighbors living in the area have just filed suit in NJ Superior Court, asking the judge to invalidate the approval. They claim that the plan will affect their properties negatively, and that the approval was “arbitrary, capricious, unreasonable, unlawful, ultra vires [beyond their authority], and against the great weight of the evidence presented to [the zoning board]”.
Did Jackson try to illegally discourage Orthodox Jews from moving to town?
After Jackson Township unilaterally discarded an agreed upon settlement in their lawsuit with Agudath Israel, the plaintiffs were given permission to refile and update their complaint in court.
The new complaint, filed last night, is far more wide sweeping than the original (which focused primarily on land use) and names a number of individual officials as defendants. It details a multiple-years-long pattern of discrimination by the township and its officers and employees as part of an ostensible plan to discourage and frustrate Orthodox Jews who might want to move to Jackson.
These actions are claimed to have been fueled by negative public sentiment and comments made in public meetings, emailed to the mayor and council and posted on social media. For example the following email sent by a resident in 2017 is quoted:
I have been fortunate enough to somehow get inside the Orthodox community and I could tell you that there is certainly a plan and that plan is to buy up as much as they possibly can and take Jackson. So if we don’t get on the ball and figure out a way to slow it down legally then we are dead. I’m begging you all to please pull out the big guns and find our town a proactive law firm or perhaps hire a land/use attorney on retainer to do what needs to be done to protect us. That being said I appreciate the efforts that are being made by council such as the landlord registration the no knock and most recently the ordinance on dormitories. But we are dealing with a very shrewd group and a very organized operation when it come to the Orthodox community, baby steps just aren’t going to be enough.
Making an appearance are eruvs, sukkahs, schools, dorms, trailers, spying, “blockbusting” complaints, deleted emails, former zoning board members, the LCSW, and the Jackson Strong and Rise Up Ocean County Facebook groups among other things. The complaint alleges violations of First Amendment, Fourteenth Amendment, RLUIPA, the Fair Housing Act and New Jersey’s Law Against Discrimination and can be read below.
This is separate from the motion for sanctions filed last week, which will be decided by May 6th and may result in fines and other penalties for Jackson.
Climbing on board with Oros Bais Yaakov, Agudath Israel has just filed a similar motion in federal court to fine and restrain Jackson Township for deleting emails related to the case. The judge overseeing the case will rule on this motion by May 6th.
Read the full brief below:
The brief cites similar emails and OPRA requests, including the emails below between Jackson Township clerks talking about destroying records that are clearly related to pending lawsuits:
New motion filed to fine Jackson Township and prevent destruction of evidence.
As a result of Jackson Township playing games with records, a plaintiff in a current lawsuit against Jackson, Oros Bais Yaakov, has filed for a court order to fine the township for destroying evidence and prevent them from doing so further.
The motion details how the township clerk, after being deposed in the case, denied multiple lawsuit-related OPRA requests while claiming that the records were no longer available. For example:
On March 24, 2019, [requestor] sent another OPRA request to the Township requesting “all emails between Mike Reina and Helene Schlegel in Oct 2014 with regard to the Oros Bais Yaakov lawsuit or complaint.”
On March 25, 2019, the Township advised [requestor] that the “records requested have been destroyed under general correspondence as per approval from the NJDARM.” The response referenced the “Authorization from Records Disposal approved on 3/6/19.”
…
The Township Clerk, Janice Kisty, has already been deposed in this matter and is thus fully familiar with the ongoing lawsuit. It was Ms. Kisty who approved the request to destroy the correspondence.
Also included are examples of the clerks discussing the destruction of records:
In what appears to be a continuing course of deliberate action to destroy records, Ms. Kisty also emailed Township employee, Danielle Sinowitz, “Reminder that 2014 and maybe 2015 is destroyed…” with respect to an OPRA request seeking Eruv
information.
Oros notes too that public OPRA responses turned up emails they had never seen, while these emails should have been returned during discovery already.
NJ Court Rules consider hiding, altering or getting rid of evidence during legal proceedings a “failure to make discovery”. The attorneys for Oros ask for a court order to stop this behavior and penalize the township, by:
(a) Enjoining Defendants from continuing to knowingly and willfully destroy documents relevant to this lawsuit during its pendency;
(b) Imposing a monetary sanction against Defendants for its intentional violative actions of destroying documents relevant to this lawsuit during its pendency; and
(c) Imposing an adverse inference Sanction against Defendants for its intentional violative actions of destroying documents relevant to this lawsuit during its pendency;
Jackson has yet to respond to these allegations in court.
Jackson Township’s document destruction has suddenly reversed itself.
Jackson Township clerks have been replying to OPRA requests saying they can not be filled because the relevant records have been destroyed.
Fortunately, it seems that these records have been magically recovered. When pressed on why records related to litigation were being destroyed, the clerks office responded that they are suddenly no longer so destroyed anymore.
Maybe a team was formed to hand-reassemble the shredded documents? Maybe their reincarnated form is somehow harder to search, possibly because the strips of paper that they have taped together are fragile?
Or maybe their lawyers just told them that actually destroying things was a bad idea.
Which begs the question: was this all a ruse to hide information from the public? Has Jackson made more work for themselves while still being legally required to deliver documents?
And what will happen if the DOJ and AG serve the township with more subpoenas? In fact, has the township already violated the order from the DOJ, requiring that “electronic files not be altered or destroyed”?
A reader sent us the following: an OPRA request for one month’s worth of emails between former Jackson Township Business Administrator Helene Schlegel and Mayor Mike Reina, related to a pending zoning lawsuit against Jackson Township. A simple request, right?
Unfortunately for this requester, these records have left the building. The emails from 2014 were deleted recently pursuant to New Jersey’s Destruction of Public Records Law, which allows government bodies to destroy old records in order to declutter their lives after filing a certificate with the state Division of Record Management.
While the timing of the township’s sudden need to destroy years of records is odd, given the number of legal battles they have just reignited, there is also something that does not spark joy about Jackson’s record disposal filings with the state.
For one, the emails between the Mayor and Business Manager are categorized as “External Correspondence”, despite being entirely internal to Jackson. This is important because other emails may need to be retained for up to seven years.
Secondly, the certificate requires that clerk to sign off that the records in question are not “involved in litigation”, but the request clearly asks for records on the subject of an ongoing lawsuit. In fact, this case is still in the discovery phase, which was just extended by the judge.
With more legal troubles potentially on the horizon, what is Jackson Township trying to get rid of, and why are they doing it so haphazardly?
At this week’s council meeting, Council President Rob Nixon railed against a recent article he claims misrepresented his words (the author of which has responded as well). He also made a simple plea: “Talk to each other”. If you have an issue in the township, it can be solved by “real communication” with “willing partners”.
This statement stands in stark contrast to a sentiment expressed recently by another township head, Mayor Mike Reina: “Game on, gloves off”. After over one year of discussion, Reina and Nixon decided to walk away from an agreed-upon settlement with Agudath Israel about bans on schools, synagogues and dorms, negotiated at practically no cost to the township. Now, after kicking to the curb “communication” and “willing partners”, Mayor Reina sent around an email about the case saying that he is ready to throw down.
The mayor claims this is in the interest of “all our residents”, but is it in the town’s interest to head back into legal and financial uncertainty by putting a case that has come amid somedamningrevelations in the court’s hands and hiring a new legal team on the taxpayer’s dollar while the DOJ and AG hover overhead? Or, given the timing of their sudden change of heart, could this have more to do with Reina and Nixon protecting their political careers after last election season.
In what seems to be headed towards a bruising battle though, both sides are preparing to pull punches. After telling the judge that Jackson has been acting in “bad faith”, Agudath Israel was granted carte blanche to add new charges to their lawsuit in a hearing this week. It remains to be seen what will happen, but this case may get much more complex, especially if the state or federal government decide to join the melee.
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.
Jackson and Agudath Israel submitted reports and met monthly with the judge for much of 2018.
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.
Political Expediency
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.
Is Mayor Reina just trying not to get “sacked”?
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.
Jackson Leaks 