Mens Rea Applies Despite Practice of Religious Norms

In 2010, the Superior Court of New Jersey heard the matter of S.D. v. M.J.R., 2 A.3d. 412, 415 N.J.Super. 417. The Hudson County case involves the marriage of Plaintiff S.D. (“Plaintiff”) and Defendant M.J.R. (“Defendant”) and the domestic abuse that Defendant inflicted upon Plaintiff per his rights and privileges within the Islamic faith. Both the trial court and Superior Court in this matter analyzed the relationship between the legal concept of mens rea and Defendant’s state of mind when acting within the scope of his religion.

Plaintiff and Defendant are both Muslims from Morocco. Their marriage was arranged by their respective families in 2008 when Plaintiff was 17 years old. On July 31, 2008, Plaintiff and Defendant were married. After three months of marriage, Defendant asserted “his rights” as a Muslim husband in four separate incidents.

The first incident occurred when Plaintiff was unable to sufficiently cook a meal for Defendant’s friends. Once Defendant’s friends left, Defendant proceeded to inflict a punishment upon Plaintiff for her failure to cook what he believed was an adequate breakfast by pinching her on every part of her body for over an hour. His “punishment” left several bruises which were documented by the local prosecutor’s office weeks later. Defendant indicated to Plaintiff that the violence he was inflicting was to “correct” her behavior.

The second incident occurred when Defendant, knowing Plaintiff was not a skilled cook, asked her to prepare a dinner for friends. Plaintiff informed Defendant that she could not cook the meal he requested to his satisfaction. He then asked his mother to cook the meal instead (Defendant’s mother had moved in with them shortly after they were married). Plaintiff and her mother-in-law had an unpleasant exchange. When Defendant learned of this exchange, he proceeded to again inflict a punishment upon Plaintiff. This time he stripped Plaintiff of her clothes, and pinched her breasts and her vaginal area. Plaintiff tried to flee but Defendant locked the door so she could not escape. Defendant explained to her that she was his wife and she must do whatever he told her. After his punishment, Defendant then forcibly had sex with Plaintiff. This episode lasted several hours.

About a week later the third incident occurred after Plaintiff got into an argument with her mother-in-law. The argument got so heated that Plaintiff locked herself in her bedroom. Defendant removed the latch from the bedroom door, entered the bedroom, and proceeded to engage Plaintiff in nonconsensual sex. Subsequently, after some unrest, Plaintiff attempted to leave the apartment, but Defendant refused to allow her to leave and instead, pulled her back in and physically assaulted her by repeatedly slapping her in the face causing her lip to swell and bleed. Defendant then left the room which allowed Plaintiff time to escape the house through a window. Once outside, Plaintiff encountered a woman who noticed her injuries and called the police. The police took her to the hospital and documented her injuries. A police investigation also established that her bed sheets and pillow cases were stained with what appeared to be blood.

Subsequent to the above three incidents, Plaintiff moved out of the marital home. During this time it was discovered Plaintiff was pregnant with Defendant’s baby. In order to try and reach a remedy to their marital issues the Plaintiff, Defendant, and their Imam had a meeting. At the meeting, Plaintiff and Defendant reconciled on the following conditions: that Defendant would cease mistreating Plaintiff, that they both move back to Morocco, and that they live separate from Defendant’s mother.
On the night of their reconciliation, in January 2009, Defendant again engaged in nonconsensual sex with Plaintiff three times. Defendant continued to do so on subsequent days. During this period, Plaintiff was deprived of food and a telephone.

Defendant explained to her that according to Islamic faith, he can do anything he pleases to his wife and she should submit to him. Defendant eventually became dissatisfied with Plaintiff and performed an Islamic divorce in the presence of the above-mentioned Imam.

Ultimately, a complaint was filed in Superior Court and Plaintiff attempted to secure a restraining order against Defendant. While these domestic matters were proceeding, a parallel criminal matter was also pending. During the litigation of the above matters, the Imam confirmed that according to Islamic law “a wife must comply with her husband’s sexual demandsÉ The Imam did not definitively answer whether under Islamic law, a husband must stop his advances if his wife said Ôno.’”

The Judge in the restraining order matter found that Plaintiff had proven by a preponderance of the evidence that Defendant engaged in harassment and assault. He further found that Plaintiff had not proven criminal restraint, sexual assault, or criminal sexual contact. To that end, the Judge specifically stated that:

This court does not feel that, under the circumstances, that this defendant had a criminal desire to or intent to sexually assault or to sexually contact the plaintiff when he did. The court believes that he was operating under his belief that it is, as the husband, his desire to have sex when and whether he wanted to, was something that was consistent with his practices and it was something that was not prohibited.

Therefore, in the Judge’s view, Defendant did not act with criminal intent. Finally, despite having found acts of domestic violence, the Judge found that issuing a final restraining order was unnecessary as the incidents described above were merely a “bad patch” in their marriage (despite the fact that the incidents occurred only three months into their marriage, and that they never actually ended), Plaintiff’s injuries were not severe, the parties had intentions to divorce and cease living with one another, at least one of them intended to move back to Morocco, and, he assumed, the parallel criminal matter would resolve the outstanding issues. Plaintiff appealed the ruling.

On appeal, the court first looked at the purpose and intent of the New Jersey Prevention of Domestic Violence Act. At the outset, the court found that the legislature elected to pass the Act, even though criminal statutes could also apply, because of the special and unique nature of domestic violence. Further, the court noted that sexual assault can occur when one engages in sex without the consent of one’s spouse. Most importantly, the court noted that neither the sexual assault statute nor the criminal sexual contact statute, applicable to the instant matter, specified what mental state must be demonstrated for an alleged perpetrator of sexual assault and/or criminal sexual contact. The court then clarified that when a state of mind is not specified, it defaults to “knowingly.” In essence, as the court observed, “criminal intent is generally an element of crime, but every man is presumed to intend the necessary and legitimate consequences of what he knowingly does.” (Quoting Reynolds v. United States, 98 US 145 (1878).)

The court then proceeded to provide a brief historical review of situations where religious norms conflicted with the law. Specifically, the court highlighted the Mormon practice of polygamy, the Seventh Day Adventist practice of avoiding work on a Saturday, and the American Indian practice of sacramental ingestion of peyote. In the final analysis, the court affirmed the long-established law as set forth by many decades of United States Supreme Court precedent: “valid, generally applicable, and neutral laws may be applied to religious exercise even in the absence of a compelling governmental interest,” quoting Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990). The court further determined that “[t]he only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections.” (Quoting Smith above.) The court decided that the Smith case appears to control as the laws defining the crime of sexual assault and criminal sexual conduct are neutral laws of general application.

Acknowledging that the legislature recognizes the serious nature of domestic violence, and that Defendant violated neutral laws of general application when he physically and sexually assaulted Plaintiff, the court decided that there was a basis for a finding of domestic violence in the instant matter. The court further acknowledged that the trial judge in the matter also correctly found that Defendant had assaulted and harassed Plaintiff in violation of the Prevention of Domestic Violence Act.

The appellate court rejected the trial judge’s conclusion that Defendant’s intention to act within the norms and expectation of his Islamic faith somehow resulted in Defendant having no mens rea to commit a crime and/or violate the Prevention of Domestic Violence Act. From a practical point of view, the court was greatly distressed by what it believed to be an “unnecessarily dismissive view” of domestic violence on the part of the trial judge. Further, the court was concerned that the trial judge believed Muslim norms were not actionable, simply assumed the criminal court judge would take a certain action without following up to ensure that he did, presumed that the parties’ separation and/or divorce would resolve the abuse, and failed to sufficiently consider the impact the imminent birth of the couple’s child would have on the situation. Based upon all of the above, the court reversed the trial court and remanded the case for entry of such an order.

In the final analysis, the matter of S.D. v. M.J.R., 2 A.3d. 412, 415 N.J.Super. 417 presents attorneys, judges, and, of course, litigants, with the fact that practicing the religious norms of one’s faith cannot undercut the mens rea requirement of a criminal and/or domestic abuse statute. Knowingly committing an act of abuse, as defined by a neutral and generally applicable statute, is enough to hold one liable or guilty of the act regardless of what his religious imperatives are.

This article also appeared in the Philadelphia Bar Association’s “Upon Further Review” on April 13, 2011 and can be found here and on my website here.

Showing Entitlement in Order to Receive Alimony Pendente Lite

I am excited to say that I won a recent alimony pendente lite (“APL”) case on the basis of entitlement.  This is a pretty rare occurrence as evidenced by the paltry amount of case law on the subject.

 

A little background may help.  First, APL is the support a spouse receives while a divorce case is pending.  The spouse who receives is, probably obviously, the spouse with the lower income and fewer assets.  The purpose of APL is to help the spouse with less income/assets to be able to adequately provide for him/herself and litigate the divorce simultaneously.  Most of the time, entitlement is merely assumed either because the numbers are clear or many practitioners presume there is no defense against it if s/he represents the spouse earning more money.

 

Most APL petitions are filed using a template that is rarely, if ever, varied from case to case.  The averments in the template allege that the petitioner (the person seeking APL) cannot sustain her/himself during the litigation and cannot provide for his/her reasonable own needs without the APL.  I have litigated dozens of APL cases on either side and never seen anyone challenge a petitioner on the basis of the averments in the APL petition and about a year ago, I decided I would try and see what happens.

 

The response I have received from everyone at the APL hearings so far was surprise.  Opposing attorneys react extremely negatively when I bring out the APL petition and cross examine on the averments made in it.  I suspect it is because this likely never happened before to them.  Indeed, one attorney admitted as much exclaiming on the record something like “everyone knows the petition is just a form!”  Conversely, the response I have received from the support masters has ranged from confusion (but allowing the examination) to something like a bemused spectator.

 

The fact is, an APL petition is a formal document filed with the Court which contains verified averments of facts about the petitioner made by the petitioner.  Merely because it is a form or a template does not, somehow, lessen the significance of the fact that it contains factual averments which are verified by the petitioner to the court as true.  My suggestion to those who think “it is merely a form” would be to rethink using it if your client does not conform to its averments.  Merely having lesser income does not automatically mean that one is entitled to the APL.

 

In the recent case I mentioned above, the Wife made a very good living earning a six-figure salary (though less than her spouse), was able to pay all of her expenses out of her income (without the APL), as well as make contributions to her retirement funds each pay period.  Needless to say, she was more than able to meet her reasonable needs and sustain herself if she could do all of the things listed above with her own income (absent the APL), namely satisfy all of her monthly bills and save for retirement.  APL, in this case, would not equalize the two parties over the course of the divorce litigation, but only serve to enrich the petitioner.

 

Luckily for me and my client, the judge agreed and ruled that the wife was not entitled to the APL.  I think the lesson here is that one cannot assume some things, namely, one is not entitled to APL merely on the basis of making less money than one’s spouse and that the averments in an APL petition cannot be examined merely because it is a “form” or “template.”  The allegations made in the petition are important and are formal representations to a court and should be taken seriously as such.

 

Finally, every case is unique and do not read the above and presume it applies to your case.  This article is not legal advice for your particular case.  Each case is handled differently based on its unique set of issues, facts, and circumstances.  The take away from the above, is, I think, first, be sure that what you aver in an APL petition reflects the truth and reality.  Second, be sure to consider arguing entitlement if defending an APL petition if it is clear that the petitioner has sufficient income/assets to sustain him/herself.  APL is not designed to enrich one party and/or impoverish the other.  Instead, it is designed to try and make both parties able to both sustain themselves and pursue the divorce litigation.

Supreme Court Spotlight: No “Cure” for Injuries Caused by Vaccines?

Here is an article, by Theodore Y. Choi, Esquire who is a former associate at my firm.  He provides pretty interesting insights into vaccines and the liability for the potential damage they can cause.   This article can be found on my website here and was originally published in Upon Further Review on March 9, 2011, and can be seen here and on my website here.

Jewish Law CLE

A couple of weeks ago I concluded a 6 week Continuing Legal Education (CLE) course in Jewish Law led by the Jewish Learning Institute (JLI).  This is the sixth CLE I have taken that is provided by JLI.  Each class regards a different area of Jewish Law and how it relates and compares to American law.

I really enjoy the classes because, from a practical point of view, the credits are pretty cheap so I do not have spend a lot of money for them.

From a spiritual point of view, I think the classes are really interesting and insightful.  I have the opportunity to study the Bible with Jewish people who have a completely different – and to me new – view and interpretation of the Bible.  Most, if not virtually all, of the presumptions and customs and conventions of Christian biblical interpretation – which is what I am accustomed to – are absent, which gives me a new perspective into my own faith and the Bible.  I feel that it enhances my faith and affords me a view and understanding of the Scriptures which many of my Christian coreligionists lack.  Indeed, as Jesus was Jewish, it seems obvious to explore their view of the Bible and theology to better understand Jesus and his teaching.

From a legal point these classes give me an interesting view and perspective of American law as I contrast the two and, at times, see where and how American law developed from Jewish Law.

I would highly recommend these classes to anyone interested in developing greater understanding of the Old Testament of the Bible and Jesus, but also for those who would like to know more about the development of the law.

Gross Decision (?)

In the 1964 Christmas television classic, Rudolph the Red-Nosed Reindeer, prospector Yukon Cornelius, while in search of silver and gold (or is it gold and silver?), declares that the frightful Abominable Snowmonster of the North, who evokes fear and trembling in anyone who sees him, “is nothing without his choppers,” after toymaker turned dentist, Hermey the Elf, extracts all of the monster’s teeth. Consistent with Yukon’s observation, the United States Supreme Court, with Justice Clarence Thomas writing for the majority, in the recent case of Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343 (U.S. 2009), in what has become a landmark decision, may have used its judicial pliers to extract the teeth of the Age Discrimination in Employment Act (ADEA) for claims brought thereunder by plaintiffs who feel they were victims of age discrimination.

In Gross, the Plaintiff was at the time of the alleged actionable discrimination, a 54-year-old male claims administrator director who had worked for the Defendant for 30 years when Defendant elected to reassign Gross to the position of claims project coordinator. Simultaneously, Defendant reassigned Gross’ former subordinate, a woman in her early forties, to a newly created position that carried with it most of Gross’ former responsibilities. Gross believed his reassignment to be effectively a demotion, and that he was discriminated against based on his age, and he brought suit against Defendant under the ADEA claiming age discrimination.

At the conclusion of the trial of this matter at the District Court level, the Judge, over Defendant’s objections, instructed the jury that a verdict must be entered against the Defendant if Gross proved, by a preponderance of the evidence, that Defendant demoted him and Gross’ age was the motivating factor in Defendant’s decision to demote him. The jury was further instructed that Gross’ age was a motivating factor if it played a part or role in the Defendant’s decision to demote him. In other words, if the Defendant’s motives were a mix of lawful and unlawful (e.g.: age discrimination) reasons for demotion, then a verdict would have to be entered against the Defendant. Finally, the jury was instructed that if the Defendant proved, by a preponderance of the evidence, that it would have demoted Gross regardless of age, a verdict would have to be entered against Gross. This portion of the jury instructions presumes that the burden of proof shifts from Gross, who has to prove that age was the motivating factor in Defendant’s decision, to Defendant, who has to prove that it would have demoted Gross regardless of his age.

Gross was victorious at the District Court level causing the Defendant to appeal to the United States Court of Appeals for the 8th Circuit. The Circuit Court reversed and remanded the District Court decision for a new trial as a result of what it found to have been improper jury instructions. Gross appealed to the Supreme Court of the United States.

The question presented to that Court was whether a case under the ADEA requires (1) a shifting burden of proof and (2) could successfully proceed when an employer takes a discriminatory action against an employee based upon mixed motives. By including these two elements when enunciating jury instructions, the District Court implicitly requested the jury to apply an analysis required for alleged discrimination pursuant to Title VII of the Civil Rights Act as interpreted by the landmark case Price Waterhouse v. Hopkins, 490 US 228 (1989). The Court first examined whether a shifting burden of proof is warranted under the ADEA. It then examined whether the ADEA allows for a claim of mixed motives or requires a “but-for” analysis, id est but for the plaintiff’s age, the employer would not have taken the alleged discriminatory action.

As the District Court’s jury instructions were an application of the requirements under Title VII of the Civil Rights Act, the primary focus of the Court’s analysis was a comparison of the language of the ADEA with that of Title VII. When making its comparison, the Court, through Justice Thomas’ opinion writing for the majority, also took note of the fact that Congress has amended both Title VII and the ADEA, with some amendments occurring simultaneously. Ultimately, Justice Thomas’ textual analysis of the respective statutes is actually quite simple. First, Justice Thomas observed that the ADEA contains absolutely no language regarding a shifting of burdens of proof while Title VII does have such language. Second, Justice Thomas also noted that the ADEA does not contain any language implying that proving that an employer acted with mixed-motives is sufficient to warrant a judgment in favor of an allegedly discriminated-against plaintiff. Instead, as Justice Thomas pointed out, the ADEA specifically says that a discriminatory act must be “because of” an individual’s age. After a somewhat extensive, and perhaps torturously overwrought, dictionary and linguistic examination of the phrase “because of,” Justice Thomas concluded that a “but for” analysis is consistent with the aforesaid language. Finally, Justice Thomas, attempting to divine the mental intent of the legislators responsible for amending and voting for the changes to the ADEA years in the past, suggested that since both Title VII and the ADEA were amended around the same time, and the mixed-motives language inserted into Title VII was not correspondingly inserted into the ADEA, a logical conclusion could be drawn that Congress did not want and/or intend the ADEA to allow claims to successfully proceed in cases involving mixed-motives.

Justice Stevens, in his dissent, argued that burden shifting, and, therefore, permitting mixed-motives cases, ought to be permitted under the ADEA as the ADEA was drafted, in haec verba, from Title VII and that Title VII analysis has, for quite some time, been commonly applied to the ADEA by the United States Supreme Court. Furthermore, he explained that the phrase “because of” does not require the rigid and exclusive meaning that is synonymous with “but for” applied by Justice Thomas. Justice Stevens argues that “because of” can certainly permit multiple motives, including a discriminatory one, but does not, on its face, require a single motive as Justice Thomas suggests. Justice Stevens also pointed out that the cases under ADEA have regularly allowed burden-shifting and mixed-motives cases and one cannot conjure some sort of presumption, through an attempt to divine significant meaning from a non-action by Congress, from Congress’ amending Title VII and the ADEA differently. Indeed, as burden-shifting and mixed motives cases were already permitted under the Court’s previous rulings, why would Congress need to codify it? Justice Stevens argues that Congress’ lack of action confirms their approval of existing case law under the ADEA. Justice Breyer, in his rather brief dissent, simply focused upon the fact that a requirement to prove “but for” with direct evidence is, at its core, a requirement to prove what someone else’s thoughts were; an impossible task even for the thinker himself, especially after so much time and influences come to pass after the suit has been filed. For Justice Breyer, a “but for” analysis requires a plaintiff to engage in finding proof of hypothetical thoughts; proof that, in reality, could never be found, and resulting in a toothless ADEA that could never be effectively employed by plaintiffs. For Justice Beyer, Congressional intent was to have an ADEA under which plaintiffs could have successful claims, as opposed to an ADEA that requires a plaintiff to prove the impossible, effectively foreclosing any viable actions for age discrimination.

Obviously, Justice Thomas’ opinion had less-than-favorable results for Gross. As Gross’s employer did not have to prove what its actual motive was for demoting him, and Gross could not prove that “but for” his age he would not have been demoted, Gross’s matter was remanded to proceed in a manner consistent with Justice Thomas’ opinion. In sum, pursuant to the current authoritative precedent described herein, a plaintiff bringing an action under the ADEA must prove, by a preponderance of the evidence, that his age was the only factor motivating the alleged discriminatory action through the presentation of direct evidence in order to have a successful suit. As it stands now, plaintiffs bringing suit under the ADEA are required to plunge their way into the nearly impossible task of entering someone else’s mind to learn how he made his decisions. The Gross decision could not have come at a worse time because the declining economy has impacted heavily on older employees, resulting in a substantial increase in ADEA claims being filed at the state and federal discrimination administrative agency level by impacted employees. It makes their task of proving discrimination far harder. Although there is an effort by interest groups acting on behalf of employees within the ADEA age purviews to have Congress enact a law that would repudiate Gross, that effort may not be successful, especially given the outcome of the latest Congressional elections and the current political makeup of Congress.

After Gross, Hermey the Elf’s advice about the once-fearsome, but now-toothless, Abominable Snowmonster holds equally true for employers when faced with the post-Gross ADEA: “don’t let this big blowhard scare you anymore, just walk right past him.”

This article also appeared in the Philadelphia Bar Association’s “Upon Further Review” on January 6, 2011 and can also be found here on my website.

Welcome Lane J. Schiff, Esquire!

I am happy to say that my law firm, the Law Office of Faye Riva Cohen, P.C., has added Lane J. Schiff, Esquire to our ranks.  Lane brings a great education, youthful enthusiasm, and quality work ethic to the firm.  So far he has done a great job and fits in well, and we hope we can develop a long lasting professional relationship with him.  So, here’s to welcoming Lane!

Ripeness Spoils Church’s Efforts

In the matter of Shenkel United Church of Christ v. North Coventry Township, 2009 WL 3806769, Shenkel United Church of Christ (“the Church”), has recently found its efforts to fight homelessness spoiled by the doctrine of ripeness.
In order to fulfill its Biblical mandate to care for the needy among us, the Church, for several years, participated in a Montgomery County run program called “One Night at a Time”. “One Night at a Time” helped homeless persons find shelter for one (1) month during the winter. For a reason unrelated to the case discussed herein, in 2005 Montgomery County discontinued the “One Night at a Time” program. Instead, Montgomery County directed its homeless population to a local state hospital. Unfortunately, it became apparent that the local state hospital was inadequate to meet the needs of the County’s efforts against homelessness, as overcrowding became a persistent problem. In 2007, in response to the continued homelessness problems in Montgomery County, and the overcrowding of the state hospital, a Christian organization, called Ministries for Main Street, was formed to help combat homelessness. The services offered by Ministries for Main Street were, in essence, the same as those offered by the “One Night at a Time” program. As the Church was an active participant with the “One Night at a Time” program, it attempted to similarly participate in Ministries for Main Street.
Before participating in Ministries for Main Street, the Church dutifully notified North Coventry Township (hereinafter “the Township”) of its intention to do so toward the end of 2007. Although the Township had no objection to the Church’s participation in “One Night at a Time” two (2) years previous, the Township now, suddenly, objected to the Church’s participation in Ministries for Main Street, even though the Church was to provide the same services as before. The Township’s objection primarily revolved around its allegation that the Church’s efforts with Ministries for Main Street would violate both the Township’s zoning laws and building codes. Specifically, the Church was zoned for assembly purposes, and not as a residence as required to house the homeless even temporarily. Additionally, the Township’s Fire Marshall sent a letter to the Church informing it that, considering the Church’s present zoning, it could not contain sleeping facilities pursuant to the applicable fire safety requirements. As a result of the clear resistance of the Township, the Church elected not to participate in the Ministries for Main Street program. The Township subsequently indicated to the Church that if the Church was interested in participating in the Ministries for Main Street program, it would need to apply for a variance from the zoning and/or building and/or fire codes.
Instead of requesting a variance, in October 2008 the Church elected to file an application with the Township’s Zoning Hearing Board, requesting a determination that it did not need a variance to participate in the Ministries for Main Street program. After a number of postponements, and unsuccessful negotiations with the Township, the Church withdrew its aforesaid application. Instead, the Church elected to pursue its goals through litigation and brought suit against the Township alleging the Township had violated the Religious Land Use and Institutionalized Persons Act, the Pennsylvania Religious Freedom Protection Act, and the Free Exercise Clause of the First Amendment of the United States Constitution.
In reaching its decision, the Court never addressed the substantive allegations made by the Church. Instead, the Court refocused the matter onto whether the matter is, ultimately, a land use issue. Consequently, the Court focused on whether the Church’s claims against the Township were ripe in the context of a land use matter. When enunciating the standard for ripeness, the Court cited to Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985) and Murphy v. New Milford Zoing Commission, 402 F.3d 342 (2nd Cir. 2005). In order to determine whether a matter is ripe when a land use issues arises from constitutional claims, such as the matter discussed herein, “the government entity charged with implementing the regulations [must reach] a final decision regarding the application of the regulations to the property at issue.” See Williamson. Based on the preceding, when applying the standard for ripeness, the Court investigated into whether the Township’s “decision maker”, in this case the Zoning Hearing Board, had reached a definitive position on the salient issues. It is only upon the Zoning Hearing Board’s having reached an adverse decision against a land owner, in this case the Church, that a land owner is inflicted with an actual and recoverable injury which can serve as the basis for a civil action. The Court developed the above standard because it did not to want the Court to devolve into becoming a glorified land use board dealing with effectively local issues. It wanted to ensure that the local zoning boards would be the primary places where land use issues, such as the one in the matter at hand, are dealt with and resolved. Indeed, the Court specifically indicated its belief that the local boards are in a better position to make local decisions than the Court. Therefore, an issue is only ripe if a final decision is rendered by the local authority and/or it can be proven that the pursuit of a variance would be a futile effort.
The Church argued that the above enunciated ripeness standard ought not apply; it argued, instead, that the instant matter is not about land use and, therefore, another ripeness standard should apply. To that end, the Church argued that the standard laid out in Step-Saver Data Systems, Inc. v. Wyse Technology, 912 F.2d 643 (3rd Cir. 1990) was the appropriate standard by which the Court should render its decision. The key distinction between the standard laid out above, and the standard established in Step-Saver Data Systems, Inc., is that the matter at issue in Step-Saver Data Systems, Inc. took place in the context of a declaratory judgment as opposed to the context of a land use matter. Under Step-Saver Data Systems, Inc., the analysis would be to determine whether: (1) the parties’ interests are sufficiently adverse; (2) the court can issue a conclusive ruling in light of potentially evolving factual developments; and (3) the decision will render practical help the parties. The Church asserted that the instant matter was, in fact, a declaratory judgment matter as it was seeking declaratory and/or injunctive relief of a pre-enforcement matter.
When rendering its decision, the Court simply did not find the Church’s arguments, or the cases it cited in support of the same, persuasive in the face of the Township’s assertion that the matter is, at its core, a land use matter. Specifically, the Court stated that since the Church’s action against the Township centered directly upon how the Township’s Zoning Officer and Fire Marshall applied the zoning regulations to the Church’s proposed use of its land; based upon this, the Court indicated, it was clear that the matter was, at its core, a land use matter as opposed to some sort of declaratory judgment matter. To sum up its rationale, the Court explained that “[s]ince the Church has not stated a facial challenge to the Township ordinances, the Church is essentially asking this Court to rule on the application of those ordinances before the Township itself has had the opportunity to do so.” A question of the application of ordinances for the use of land is, therefore by definition, a land use matter and the Williamson standard applies. It is worth noting that the Court mentioned, as dictum, that it may not have reached a different decision even if it used the cases the Church citied to in support of its position. How that would play out, of course, may never be known.
Allowing the matter to proceed to ripeness has a fourfold positive effect on a matter such as the one discussed herein. First, it allows for the local authority to render a decision and develop a complete record. Second, it is only after the pursuit of the variance process will the property owner, and the court by extension, know how the ordinances will be applied. Third, the variance needed may actually be granted which would, of course, eliminate the need for judicial entanglement into the affairs of a church. Fourth, it reinforces a basic federal principle that land use disputes are uniquely a matter of local concern as opposed to that of a Court.
The Court ultimately decided that the Church’s matter was simply not ripe enough to hear at this time. The Court noted that as the Church failed to pursue a variance, withdrew is application to the zoning board wherein it asserted that it did not need an application, and never pursued any sort of appeal of the Zoning Board or Fire Marshall’s decisions, that the Church never let the matter reach any decision at any level previous to bringing a civil action. Due to these decisions made by the Church, the Court ruled that the Church never permitted its matter to ripen sufficiently to warrant the engagement of the Court in such a matter.
In the final analysis, the central matter in this case is whether the question at issue is a land use matter or a declaratory judgment matter. For the reasons noted above, the Court decided it was a land use matter and that the Church did not permit the matter to sufficiently ripen to warrant a civil action. The principle to take away from the decision discussed herein is that, when dealing with a land use issue, all local administrative remedies must be exhausted before initiating a civil action.
Finally, one of the issues never addressed by the decision discussed herein, and one that this author thinks is rather peculiar, is why the Church was permitted to house the homeless when it participated “One Night at a Time” program but not permitted to do the same in the Ministries for Main Street program, even though the Church’s facilities were substantially the same at all times material to the case. This clearly apparent, unexplainable, and seemingly arbitrary change in the Township’s policy toward the Church seems to this author to involve more than just a land use issue; in actuality, it would seem that the religious freedom of a Church to achieve its social goals in the community is at issue. Perhaps if further investigation was done to determine why the Church was suddenly restricted from performing a service it performed for many years without the Township’s interference, a fresh perspective on whether the matter was actually ripe could have stopped the spoiling of the Church’s efforts to combat homelessness.

This article also appeared in the Philadelphia Bar Association’s “Upon Further Review” on October 8, 2010 and can also be found here on my website.

My 13th Annual BCTHS Seminar!

I am leading my 13th Annual “American Judicial System” Seminar today at the Bucks County Technical High School to give its social studies students an “inside look” into the judicial branch of government.  It is always fun to teach a class, have a change of pace, and get a chance to talk to some younger people about the legal profession.  Their questions are always surprisingly insightful!  Thanks Bob Woehr for the opportunity and I look forward to it next year!