March 19, 2013
Sharon A. Dragan, Esq.
Ballard & Dragan
260 US Hwy 202-31
Flemington, NJ 08822
Dear Ms. Dragan:
I am in receipt of, and a bit confused by, your March 18, 2013 letter regarding the captioned ordinance.
First, you correctly state that N.J.S.A. 40:48-1 empowers municipalities to “Prevent vice, drunkenness and immorality; to preserve the public peace and order; to prevent and quell riots, disturbances and disorderly assemblages.” This language, from ¶ 6 of N.J.S.A. 40:48-1 appears to have been enacted well before the New Jersey Criminal Code. While I’d have to go to the law library to check, it appears that the “riots, disturbances and disorderly assemblages” language was part of the Home Rule Act of 1917, L.1917, c. 152, Art. XIV, § 1.
In any event, the same language is cited in State v. Crawley, 90 N.J. 241 (1982). In Crawley, the New Jersey Supreme Court recognized that
Indeed, N.J.S.A. 40:48-1, reenacted only months before the Criminal Code, specifically authorizes the adoption of municipal ordinances “to preserve the public peace and order; to prevent and quell riots, disturbances and disorderly assemblages; [and] to prevent littering, lounging or sleeping in the streets, parks or public places.” [The New Jersey] Constitution directs that grants of power to municipalities be liberally construed in favor of the local governments. Nevertheless, two principles limit the permissible scope of municipal legislation. First, . . . the grant of legislative powers to municipalities “relates to matters of local concern which may be determined to be necessary and proper for the good and welfare of local inhabitants, and not to those matters involving state policy or in the realm of affairs of general public interest and applicability.” Second, municipalities may not enact ordinances on matters otherwise competent for local legislation if the State has preempted the field.
Id. at 247-48, emphasis supplied.
Thus, according to Crawley, the legislature grants municipalities the power to regulate public peace and order, but only when the regulations are a) needed to address “unique local concerns requiring an individualized response by the municipality” (See, State v. Paserchia, 356 N.J. Super 461, 467 (App. Div. 2003) and, b) not preempted by state law.
So, while the legislature, nearly a century ago, gave municipalities a broad grant of municipal power, that power has been significantly circumscribed by Crawley, Paserchia and other cases.
The confusing part of your letter is near the end of the second paragraph.
However, your basic points regarding broadness and the fact that municipal law cannot exceed State authority when the State has made it clear that it intends to occupy the field in a certain area are understood. I would hope that the Township’s judges, in interpreting municipal law would be cognizant of a person’s right to free speech (subject to time, place and manner restrictions) and any overriding State statues; I do believe that this has historically been the case in Readington as I have not heard of any objections to the Township’s application of its prior ordinance G-91.
Implicit in your statement is an acknowledgement that at least parts of the ordinance are preempted or unconstitutional. And, you rely on the municipal court judge to sort the valid parts of the ordinance from the invalid parts in order to ensure that citizens’ expressive rights, as well as their rights to be free from preempted laws, are not infringed upon.
But, the only time that a judge will have an opportunity to interpret this ordinance is when a person who is charged with violating it pleads not guilty. I think that making citizens endure a prosecution under the ordinance in order to determine its validity is unduly oppressive upon those charged. I think that it’s your job, as Township Attorney, to carefully review the ordinance, identify the invalid parts and recommend repeal of those invalid parts to the Township Committee. Are you willing to take on that task?
Thank you for your attention to this matter.
John Paff, Chairman
New Jersey Libertarian Party’s
Preempted Ordinance Repeal Project
P.O. Box 5424
Somerset, NJ 08875
e-mail: [email protected]