Lakewood Planning Board Attorney Threatens Protesters with Police Pokey

March 28th, 2017
Lakewood Planning Board Attorney Threatens Protesters with Police Pokey

[Editor's Note: At 6:35 a.m. on March 29 and at 1:37 p.m. on April 15, 2017, this story was edited for style, content and accuracy.]

Two men, two public policies, one township.

Someone could be prosecuted for public protest.

According to Lakewood Planning Board Attorney John J. Jackson and Lakewood resident Moshe Z. Deutsch, it won't be him.

Last week, both men took actions at a public meeting that could put public policy on trial in the highest court of the land.

In a court of law, only one can prevail.

That is not necessarily true in the court of public opinion. However, in New Jersey's fastest-growing municipality, public opinion these days is on the same side as Deutsch.

Since last year, Deutsch and other residents opposed to over-development have attended public meetings of Lakewood's planning board and the Lakewood Zoning Board of Adjustment, not as development application objectors, but as public policy protesters.

The residents do not always voice their opinions about specific applications by expressing support or opposition to them at the speaker's podium. Instead, they sit quietly in the municipal building auditorium, holding up protest signs that speak louder than words.

At the November 14, 2016 meeting of the Lakewood Zoning Board of Adjustment, a reporter for NJ News & Views observed one man seated in the audience that held up a piece of paper printed with the words, "Please Say No."

The reporter also observed Deutsch seated in the audience. While he focused his attention on the board's agenda for that night's meeting, Deutsch held up a sign with the printed message, mounted on a pole, that read on one side, "Please Say No," and on the other side read, "Enough is Enough." As he perused the agenda, he twirled the sign around to display his protest message to people in the front and back of the room, including this member of the media.

Members of the zoning board also are paying attention.

Early last year, zoning board Chairman Abe Halberstam consulted with zoning board Attorney Jerry Dasti, who worked on a rule to prohibit a resident posting videotapes of public meetings under the pseudonym First Amendment Activist, from placing his recording equipment on the speaker's podium, where the board also placed their audio recording equipment.

Following public commentary at meetings of the Lakewood Township Committee, where this editor/reporter for NJ News & Views discussed the proposed zoning board rule, 2016 Mayor Menashe Miller said that Lakewood Township Attorney Steven Secare had conferred extensively with both planning board attorney John J. Jackson and zoning board attorney Jerry Dasti about the issue - at taxpayer expense.

Miller said the attorneys agreed that the Lakewood Township Committee had sole jurisdiction over the matter. Miller also said committeemen would not prohibit placement of privately-owned recording devices on township-owned property.

That is good news for the First Amendment Activist, who posts recordings of the public meetings he videotapes, and now live-streams to the public.

Other residents, such as Deutsch, are using less technologically advanced means of messaging, but apparently just as effective at eliciting public officials' opposition to them.

At the March 21, 2017 meeting of the Lakewood Planning Board, retail advocate Herschel (Harold) Herskowitz took a seat behind Deutsch in the audience. Both men, seated next to the aisle, held up protest signs.

In a live stream video of the meeting, a Lakewood police officer approached Deutsch and Herskowitz from the back of the room during an application hearing related to construction of a WaWa convenience store with gas pumps on Prospect Street.

Viewers could see the officer talking to Herskowitz, then exiting the auditorium.

During the hearing and vote on the Prospect Street WaWa application, Jackson recused by leaving the meeting room due to a conflict of interest.

As legal counsel to Brick Developers, LLC, Jackson represented an application for development of a WaWa and Panera on Route 70 that the Brick Zoning Board of Adjustment reportedly heard on February 1, 2017.

Route 70 is a state highway that connects Lakewood with its' neighbor, Brick.

In a photo taken during the meeting by reporter Daniel Nee of Brick Shorebeat, which published his report on February 2, 2017 at http://brick.shorebeat.com/2017/02/new-brick-wawa-project-would-add-third-lane-to-route-70/, a woman objecting to the application held up a protest sign that showed a red heart in support of the two businesses asking approval of the application.

Below the red heart next to the two companies' names, the sign had a red rectangle, in which it stated in capital red letters, "BUT WRONG LOCATION!"

The sign listed three reasons why the proposed location was wrong for development of the project.

Reason number one, highlighted in yellow, said, "HORRIBLE INTERSECTION!"

Reason number two, which was not highlighted, stated, "TOO CLOSE TO RESIDENTIAL."

Reason number three, which also was not highlighted, stated, "TOO MANY VARIANCES ARE REQUIRED."

On an empty seat near the woman in the audience was another sign bearing a hand-printed message: "Keep Our Lake Safe and Clean."

Compared with Brick protest signs, those of Lakewood development protesters were less specific, but no less emphatic in their opposition.

The difference is that Jackson, as judicial officer of the Lakewood Planning Board, and not just as professional testifying on behalf of a client, was in a position to take action against protesters exercising their Constitutional right to free speech.

Following the Lakewood Planning Board vote on the Prospect Street WaWa application, Jackson returned to the dais after recusing himself. In the videotape of the meeting, archived on the Take Back Lakewood Web site, Jackson informed the audience that he couldn't have unidentified protesters seated in the audience with signs that attempted to influence board members.

After publicly identifying Deutsch and Herskowitz as the protesters holding up signs, Jackson said that anyone disrupting the meeting in the future could be subject to removal from the room, fines, arrest and/or imprisonment.

Jackson asked Deutsch and Herskowitz if they would stop disrupting the meeting by holding up protest signs.

Both men remained defiant.

"No," they said in response, "It's our First Amendment right."

In a telephone interview with NJ News & Views later that evening, Herskowitz said he was not intimidated by Jackson's comments during the meeting.

"I said, 'Mr. Jackson, please, I want to be arrested!"

Herskowitz said he thought it funny that Jackson was concerned that he and Deutsch not attempt to influence planning board members by holding up protest signs while seated in the audience.

"Oh, only rabbis (are permitted) to influence them," Herskowitz, an Orthodox Jew, said in referring to the town's influential bloc of government lobbyists. "It's so out of control!"

Herskowitz said he had attended that nights' planning board meeting to lend his support to Deutsch. He said that Lakewood police had warned Deutsch at a previous meeting not to hold up the signs.

"It's okay for now," the officer reportedly said, "But (Mr. Jackson) said he's going to do more research."

Apparently not as much research as Deutsch, who told a reporter for NJ News & Views the following evening that he had consulted an attorney after receiving the first warning, as well as the American Civil Liberties Union (ACLU).

"I made a peaceful protest," Deutsch said. "People fought and died for their civil rights in this country. That's what it comes down to."

Deutsch said he's not against development, as long as it's smart development.

"This is about government working for the benefit of everybody," Deutsch said. "This is not about me; this could be anybody. I just did what I thought I should do."

According to the attorney Deutsch consulted, he had the right to hold up protest signs in accordance with the New Jersey Open Public Meetings Act and the United States Constitution. Deutsch e-mailed a copy of sections of the state law pertaining to his actions during the meeting, which he had highlighted in yellow before scanning them electronically.

The document stated that N.J.S.A. 2C:33-8 provides a three-prong test for violation of the Open Public Meetings Act.

First, the meeting must be lawful.

Second, the alleged action must have been taken with the intent to disrupt or prevent the meeting.

Third, the alleged violator must have physically obstructed or interfered with the meeting being held.

Under Rule 7: Know When to Call for Help, the Open Public Meetings Act stated "The standard used for evaluating this type of conduct is typically considered a balancing test. It should be applied before taking any action which may abridge the constitutional rights of a citizen. This test balances the right of government to conduct orderly proceedings versus the right of individuals to free speech and assembly."

On March 22, 2017, Jackson returned a reporter's telephone request for comment.

In defending his action the previous night, Jackson said, "It's a distraction and it's improper."

He also asked this editor/reporter if she was an advocate of the protesters.

In response, this editor/reporter told Jackson that NJ News & Views identifies public policy issues through investigative journalism and provides solutions through editorial commentary.

"My board members do not like the signs there," he said.

Jackson said board members felt intimidated by them.

"People making statements have to be cross-examined, they have to be identified," Jackson said. "I stand by my (actions)."

Jackson said he "absolutely respected the First Amendment of the United States Constitution."

"It's the bedrock of American society," he said.

Jackson asked this editor/reporter to put herself in the place of an applicant appearing before the board, while strangers she didn't know sat in the audience, holding up protest signs during her hearing.

"You can't argue with that," Jackson said.

This editor/reporter disagreed.

Development applicants have the right to expect the judicial officer to inform board members to disregard protesters seated in the audience and to only consider the testimony of those people that come to the speaker's podium and identify themselves in support of or in objection to a specific application.

Development board members do not have the right to intimidate protesters seated in the audience and exercising their Constitutional right to free speech and public assembly by demanding that they, too, identify themselves and publicly avow not to continue protesting.

By taking the actions that he did at the March 21, 2017 meeting of the Lakewood Planning Board, board Attorney John J. Jackson is as much a protester as Lakewood resident Moshe Deutsch.

This editor/reporter asked Jackson whether he and board members had discussed the cost of litigating a case before the United States Supreme Court before taking actions that might be a violation of citizens' Constitutional rights.

Jackson said he didn't think his action would come to that.

This editor/reporter asked him if he intended to pursue a similar course of action in the future.

Jackson said no, then changed his mind.

"It's manageable at this point," he said. "That could change. It's not a black and white issue."

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