Two Cases About Access to Swimming

Susko v. Borough of Belmar, ___ N.J. Super. ___ (App. Div. 2019); Curto v. A Country Place Condominium Association, ___ F.3d ___ (3d Cir. 2019).  Yesterday, while I was in or traveling to and from court for most of the day, the Appellate Division and the Third Circuit, no doubt coincidentally, each decided cases involving access to swimming.  The two cases dealt with very different facts and legal issues, however.

Susko was a case that alleged a violation of New Jersey’s public trust doctrine and N.J.S.A. 40:61-22.20, a statute regarding beach access fees.  After Superstorm Sandy destroyed parts of the Belmar boardwalk, Belmar raised its parking fees (fees that applied only for beachfront parking, a fact that led Judge Reisner, writing for the panel, to conclude that the parking fees were, in reality, beach fees) to raise revenue for repairs.  Belmar took other actions as well, most of them related to the use of funds for repairs.

The Law Division ruled that Belmar’s actions violated an earlier, but still binding, decision, Slocum v. Borough of Belmar, 238 N.J. Super. 179 (Law Div. 1989), under which the Borough was precluded from discriminating against non-residents as to beach fees.  The Law Division concluded that the Borough’s actions violated plaintiffs’ substantive civil rights, giving rise to a right to an award of attorneys’ fees under the New Jersey Civil Rights Act, N.J.S.A. 10:6-2(f) (“CRA”).

The Borough appealed, asserting numerous arguments.  They included lack of ripeness of plaintiffs’ claims, violation of the separation of powers, and a number of attacks on the attorneys’ fee award, including the argument that violations of the public trust doctrine did not implicate substantive rights for which an attorneys’ fee award under the CRA could be made.

Judge Reisner found that plaintiffs’ claims were ripe.  She dismissed the separation of powers argument as not worthy of discussion.  The panel then upheld the Law Division’s ruling in its entirety, except for a portion of the attorneys’ fee award.  “[W]hen a municipality violates the beach fee statute, N.J.S.A. 40:61-22.20, by charging unreasonable beach fees, that violation constitutes the deprivation of a substantive civil right under the New Jersey Civil Rights Act, and a successful plaintiff is entitled to counsel fees.  However, because the CRA requires the violation of an unambiguous, specific statutory or constitutional provision, most of the conduct plaintiffs proved in this case, while wrongful, did not establish CRA violations or entitle them to counsel fees.”  The case was remanded to the Law Division “to recalculate the fee award based on plaintiffs’ limited success on their CRA-related claims.”

Judge Reisner’s opinion contains an excellent discussion of the public trust doctrine, which dates back to common law but is not often the subject of published judicial opinions.  The ruling that plaintiffs could get fees for the increase in parking fees, on the grounds that since those fees were imposed only at the beachfront, they were really beach fees, as to which N.J.S.A. 40:61-22.20 protected plaintiffs, seems to be the key to the panel’s decision, as Judge Reisner noted in qualifying her opinion as applicable “[u]nder the limited circumstances of this case.”  The recognition that beachfront-only parking fees are merely a concealed form of beach fee appears rightly to perceive the reality of the situation.

Curto involved access to a condominium’s swimming pool rather than a beach.  The problem there was not fees, as in Susko, but the condominium association’s policy of segregating much of the available swimming hours by gender, in deference to the fact that a majority of the condominium’s residents were Orthodox Jews, who frown on mixed swimming.  One of the two plaintiffs in Curto wanted to swim with her family after work, while the other wanted to swim with his wife, who required pool therapy after being disabled by a series of strokes.  After they were fined for violating the gender limitations, they sued under the Fair Housing Act, 42 U.S.C. §3601 et seq. (“FHA”) and New Jersey state law.

On cross-motions for summary judgment, the District Court granted summary judgment for the Association, on the grounds that “the gender-segregated schedule applies to men and women equally.”  Plaintiffs appealed, and the Third Circuit reversed and remanded for entry of summary judgment in favor of plaintiffs on their FHA claim, applying de novo review.  Judge Ambro wrote the panel’s opinion, and Judge Fuentes concurred with his own separate opinion.

Although the Association’s policy was motivated by the beliefs of its Orthodox Jewish residents, the Association did not raise as a defense the Religious Freedom Restoration Act, 42 U.S.C. §2000bb et seq.  Judge Ambro found that the Association had waived any such defense.  But, he added, even if it had been raised, the Association did not qualify for associational standing to assert the religious free exercise rights of its members.

The absence of malice toward either gender did not defeat plaintiffs’ FHA claim.  Quoting a prior Third Circuit decision, Judge Ambro said that “a showing of malice is not required “where a plaintiff demonstrates that the challenged action involves disparate treatment through explicit facial discrimination. . . .  Rather, the focus is on the explicit terms of the discrimination.”  Though the swim schedule allowed “roughly equal swimming time for both men and women in the aggregate,” women were able to swim for only 3.5 hours after 5 PM on weeknights, while men were allotted 16.5 hours in that window.  Men were also given the whole period from 4 PM onward on Fridays, when according to an Association witness, “women are at home preparing for the Sabbath.”

Judge Ambro declined to address the issue of whether “whether sex-segregated swimming hours necessarily violate the FHA.”  The inequitable and facially discriminatory schedule here “appear[ed] to reflect particular assumptions about the roles of men and women,” and violated the FHA as a matter of law.

Judge Fuentes would have gone further.  In his view, segregation by gender is no less pernicious than segregation by race.  He joined the majority “not only because of the pool schedule’s disparate treatment of women, but also because it is per se facially discriminatory in violation of the FHA.”