Following is a copy of the New Jersey Libertarian Party’s Preempted Ordinance Repeal Project’s May 15, 2023 e-mail to the New Hanover Township (Burlington County, NJ) Mayor and Committee seeking to stop them from enacting an extremely vague and overbroad ordinance.

Hon. Paul D. Peterla, Mayor
and members of the New Hanover Township Committee
2 Hockamick Road
Cookstown, NJ 08511 (via e-mail only)

Dear Mayor Peterla and Committee members:

I write on behalf of the New Jersey Libertarian Party‘s Preempted Ordinance Repeal Project with several concerns, all involving either preemption or constitutionality, regarding Ordinance 2023-07 which was passed on first reading at the Township Committee’s May 8, 2023 meeting and is scheduled for second reading on June 13, 2023.

The proposed ordinance seeks to replace the “offensive language” prohibition set forth in Code § 131-3 with ten categories of conduct deemed “prohibited acts.” According to the introduced ordinance, these proposed changes were recommended by the Chief of Police “to ensure the safety of the community.”

My first concern is that an existing part of Code Chapter 131 (“Peace and Good Order”), regarding “loitering” is clearly preempted by statute and ought to be repealed. Here is why.

When the Legislature enacted New Jersey’s Criminal Code in 1979, it specifically decided to not include a loitering prohibition within the Code out of concern that “vagrancy and loitering statutes have long suffered from constitutional infirmity and have been criticized as inviting official harassment and discriminatory enforcement.” See State v. Crawley, 90 N.J. 241, 247 (1982). It follows, therefore, that no municipality, such as New Hanover, is allowed to locally prohibit loitering and vagrancy when the Legislature has decided to decriminalize those acts. See, State v. Crawley at 251.

But, New Hanover’s Code § 131-1(B)(1)(c), for example, prohibits loitering that could obstruct the free passage of pedestrians or vehicles. This provision, in the hands of an unscrupulous mayor or police chief, could be used as a pretext to prevent peaceful citizens from assembling on a public sidewalk near a municipal building to protest against an increase in property taxes or upon some other public issue. For this reason, this code provision’s statutory counterpart — N.J.S.A. 2C:33-7 — requires the police to accommodate free expression and assembly rights. Under the statute, the police must first try to limit the size of the crowd or move it to a different location. And, in order to prove a violation of the statute, the prosecution must prove that the obstruction was done “purposely or recklessly.” New Hanover’s ordinance, however, does not contain any such protections. The ordinance simply declares that it is per se illegal for a person to loiter on a Township sidewalk in a manner that obstructs pedestrians. Do you see how much more discretion the police have under the ordinance as opposed to the statute? Do you understand why giving the police this expansive discretion concerns Libertarians and others who seek to safeguard citizens’ free speech and assembly rights?

The NJLP’s Preempted Ordinance Repeal Project has successfully worked to repeal similar or identical loitering code provisions in dozens of municipalities throughout New Jersey. Among them are Andover Township in Sussex County, Butler Township in Morris County, Delran Township in Burlington County, Elmwood Park Township in Bergen County, Woolwich Township in Gloucester County.

My second concern is that at least four of the ten “prohibited acts” set forth in the proposed Ord. 2023-07 are also similarly preempted by Title 2C.

As a threshold matter, it’s not just loitering and vagrancy that have superseded by state law. In 2003, the Appellate Division found that Chapter 33 of the New Jersey Criminal Code “reveals a policy to comprehensively address street behavior and other conduct in public places which may disturb citizens and disrupt peaceful society.” See State v. Paserchia, 356 N.J. Super. 461, 466 (App.Div.2003). The Legislature, the court found, recognized the tension between controlling “street behavior” and safeguarding citizens’ free speech and assembly rights. Therefore, the Legislature decided to regulate “street behavior” so comprehensively at the state level that there was no room left for local regulation of the same conduct. See, e.g. New Jersey Law Journal, “Yet another Municipal Ordinance is Struck Down on Pre-emption Grounds” January 13, 2003, by Mary P. Gallagher.

Proposed § 131-3(A) seeks to make it unlawful to:

Be loud, unruly, unmanageable, riotous, uncontrollable or disorderly in any public place or quasi-public place so as to cause a disturbance or annoyance to neighbors, adjacent property owners or other persons within a reasonable proximity.

This conduct is already covered by N.J.S.A. 2C:33-1 (Riot, failure to disperse) and N.J.S.A. 2C:33-2. (Disorderly conduct) and is therefore preempted.

Proposed subsections § 131-3(H) and (K) seek to prohibit, respectively:

Keep[ing] or maintain[ing] a disorderly house or a house of ill fame, or allow[ing] or permit[ing] any house, shop, store or other building or structure . . . to be used as a disorderly house or house of ill fame, and

Permit[ting] any house, shop, store or other building or structure . . . to be frequented or resorted to by noisy, riotous or disorderly persons or by prostitutes, gamblers or vagrants.

Similar language was struck down on preemption grounds by the Appellate Division in 2014 in the unpublished opinion of Adam Szyfman and Graham Feil v. Borough of Glassboro, 2014 WL 2972146. In their opinion, the three-judge panel found that Glassboro’s ordinance “is plainly preempted by the Code [of Criminal Justice].”

Finally, proposed § 131-3(J) states:

[a]ll other riotous, indecent or disorderly conduct, breach of the peace and vagrancy not hereinabove specifically mentioned is hereby prohibited.

“A penal statute offends due process if it does not provide legally fixed standards and adequate guidelines for police and others who enforce penal laws,” Betancourt v. Town of West New York, 338 N.J. Super. 415, 422 (App. Div. 2001) citing Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Town Tobacconist v. Kimmelman, 94 N.J. 85, 118 (1983). Like the nuisance code at issue in State v. Golin, 363 N.J.Super. 474 (App. Div. 2003), § 131-3(J) subjects citizens ” to an unascertainable standard” and leaves them “at the mercy of its enforcers.” Golin, at 483.

The bottom line is this: The State of New Jersey has already struck a balance between public assembly and expression rights and the government’s need for peace and good order on the streets. New Hanover, as a subordinate subdivision of the State, is not permitted to strike a different balance between these competing interests through local legislation. Accordingly, the Township’s loitering ordinance and the cited “prohibited acts” provisions are invalid and should be repealed to the extent that it attempts to regulate adults’ street behavior.

Would you please ask your municipal attorney (Robert Wright has been copied on this e-mail) to review the entire Code Chapter 131 and report on the validity of the New Hanover Code provisions and proposed Code provisions including those that were not specifically discussed above?

Thank you very much for your attention to this matter. I look forward to hearing from you.

Very truly yours,

John Paff, Chair
New Jersey Libertarian Party’s
Preempted Ordinance Repeal Project