Prior to 2015, Joan and John Cleary, parents of a child with autism, formed Ongoing Autistic Success in Society (OASIS/Oasis), a nonprofit charitable organization, to create transitional residential adult independent learning (TRAIL) centers. These centers were intended to be similar to college, to prepare autistic individuals for a future where they could live and work on a farm, where the natural setting  “would provide a rewarding and therapeutic working and living environment for challenged individuals.”

In February, 2015, Oasis sought to buy a second site, for TRAIL graduates, but ran into serious opposition from not-in-my-backyard neighbors.

The opposition gradually became more and more aggressive, including:

  • Compiling a petition objecting to the purchase;
  • Putting pressure on the property owner, including a $250,000 offer to break the contract to sell the property to Oasis;
  • A  $250,000 “donation/ bribe” offered to Oasis to abandon the purchase of the property;
  • Threatening to bring a legal action to prohibit Oasis from using a shared driveway.

After Oasis closed on the property, the neighbors went into overdrive:

  • Putting “enormous, garish, and frightening graffiti” depicting snakes and fire on approximately 600-700 feet of the Oasis driveway;
  • Allowing an aggressive goat to trespass on the Oasis property and headbutt Mrs. Cleary;
  • Constructing a fence across the driveway easement;
  • Falsely claiming to the municipal tax department that autistic children did not live on the property and therefore Oasis should be paying property taxes on the property;
  • Dumping hundreds of pounds of horse manure on the Oasis property;
  • Removing a cement survey marker which delineated the boundary between Oasis and a neighbor’s property.

When the neighbors brought a quite title action, Oasis counterclaimed for interference with their driveway easement and for a violation of the Law Against Discrimination (LAD). The trial court’s order granting defendants’ motion to dismiss the counter claim, based upon a lack of standing and a failure to state a claim upon which relief could be granted, was summarily reversed by the Appellate Division. Oasis v. Wade, 457 N.J. Super. 218 (App. Div.2018).

This author, prior to retirement from the bench, having tried numerous LAD cases and one case alleging a strategic lawsuit against public participation (SLAPP), which similarly dealt with the extent to which opposition is appropriate, realized that there is a thin line between lawful opposition and wrongful discrimination. Judge Fisher, in upholding Oasis’ counter claim, in essence, found that the defendant neighbors crossed that line.

In rejecting defendants’ claim that Oasis had no standing, the court pointed out that, for LAD purposes, a “person” entitled to pursue such a claim includes “organizations.” Additionally, the fact that the target of defendants’ conduct was the future autistic residents and not Oasis, did not deprive Oasis of standing because the LAD “authorizes the pursuit of a claim generated by the unlawful discrimination of others even when that discrimination was more directly geared toward or engaged against those with whom the plaintiff (Oasis) has a relationship” (the autistic residents).

Substantively, the court  found, in the alternative, that if defendants’ wrongful conduct was directed not against a protected group (individuals with autism) but against Oasis for its purchase of the property, the LAD was violated because the LAD makes it unlawful to discriminate “against any buyer (Oasis) … because of the disability of a person (an autistic individual) residing in or intending to reside in a dwelling after it is sold.”

Judge Fisher noted that the LAD also provides relief by way of “stigmatic and associational” damages by protecting not only to the target of discriminatory conduct, but also those one step removed (Oasis)—those attempting to help the targets (the autistic individuals).

Defendants, by attempting to convince the property owner not to sell the property to Oasis, violated the LAD provision which prohibits aiding and abetting a discriminatory act. Thus, the court held that it is unlawful to interfere with a purchase of property and thereby “discriminate against a buyer because of the disability of a person intending to live on the premises, even if the buyer (Oasis) does not fit within the protected class” (autistic individuals).

Finally, the court quickly disposed of defendants’ contention that their conduct was protected by the First Amendment by noting that  defendants “were not free to violate the LAD.” Although defendants had the right to “make public their negative views about people afflicted with autism, such expression loses its First Amendment protection when it is used as a vehicle for discriminatory conduct that violates the LAD, … (the) overarching goal (of which) is nothing less than the eradication of the cancer of discrimination.”

Kudos to Judge Fisher for such a well reasoned and avant garde decision, which exemplifies how our courts protect those who cannot protect themselves—in this case, our most vulnerable special needs individuals.

 

Louis Locascio, a Monmouth County Superior Court judge from 1992 until 2009, is now of counsel with the Red Bank office of Gold, Albanese, Barletti & Locascio, where he heads up their civil and family mediation/arbitration department. He is a certified civil and criminal trial lawyer.