Credit: David Smart/ Credit: David Smart/

After a defeat at the state Supreme Court in a suit challenging the constitutionality of granting taxpayer funds to renovate historic churches, the Morris County Board of Chosen Freeholders has filed a suit in federal court seeking to stop a $750,000 fee application from proceeding in the case.

In papers filed in the U.S. District Court for the District of New Jersey, the freeholders asked for an injunction against a fee application filed in New Jersey Superior Court by the Freedom From Religion Foundation, the Madison, Wisconsin-based group that successfully challenged the county’s grants to churches.

The freeholders also sought permission from the federal court to proceed with their grant program.

The petition comes after the state Supreme Court ruled unanimously in April 2018 that the county’s grants to churches violates the New Jersey Constitution’s Religious Aide Clause, which provides that citizens can’t be required ”to pay tithes, taxes, or other rates for building or repairing any church or churches, place or places of worship, or for the maintenance of any minister or ministry.”

The Supreme Court took the case by direct certification after Somerset County Superior Court Judge Margaret Goodzeit granted the county’s motion to dismiss the action by summary judgment.

This March 4, the U.S. Supreme Court denied a petition for certiorari filed by Morris County, effectively letting stand the New Jersey high court’s ruling. On March 27, the Freedom From Religion Foundation filed a motion with the Law Division seeking to reopen the original complaint and award it fees as a prevailing party under the New Jersey Civil Rights Act, N.J.S.A. 10:2-6f.

The county said in its latest filing, on April 12, that in view of the decision of the New Jersey Supreme Court, the trial court is constrained to view the defendants as “prevailing parties” and will likely award counsel fees. Still, the county maintains that its position on the use of taxpayer funds to fix up churches is correct, even after suffering a defeat in court.

“[T]he county cannot obtain a vindication of its rights in the New Jersey state courts. Accordingly, the County asks this Court to issue an order enjoining the Defendants from seeking fees against the County in state court,” Morris County said in court papers.

The county concedes in its brief that the U.S. Supreme Court, in Younger v. Harris, warned in 1971 against federal interference with ongoing state court proceedings. But in Mitchum v. Foster, a 1972 case, the Supreme Court said federal civil rights claims under 42 U.S.C. §1983 are an exception to the Younger rule, the county contended in court papers. Citing MItchum, the county wrote, “the very purpose of Section 1983 was to interpose the federal courts between the States and the people … to protect the people from unconstitutional action under color of state law, whether that action be executive, legislative or judicial.”

Morris County made grants totaling $4.6 million to 12 churches between 2012 and 2015.

Andrew Seidel, a staff lawyer for the Freedom From Religion Foundation, said the exemption to Younger claimed by the county “doesn’t apply, for a number of reasons.” Seidel added that the county “lost [its case]. You don’t get to relitigate in federal court after you lose, and that’s what they’re trying to do,” Seidel said.

John Bowens of Schenck, Price, Smith & King in Florham Park, who represents the county in the church grants case, could not immediately be reached.

The Morris County case was taken up by the New Jersey Supreme Court in conjunction with another case concerning grants by the state Department of Education of $10.6 million to Beth Medrash Govoha, a Jewish Yeshiva in Lakewood, and $645,323 to the Princeton Theological Seminary. In that case, the court issued a separate opinion in May 2018 holding that the secretary of education should conduct hearings in order to determine whether the grants violated a constitutional provision barring use of public funds to benefit religious institutions.