Is South Orange Enforcing Invalid Ordinances?

October 13, 2012 at 12:32 PM

This is my e-letter, sent on October 12, 2012, regarding South Orange enforcing invalid municipal ordinance provisions.

Dear Ms. Kline, South Orange Village Clerk:

When we spoke on the telephone a week or so ago, we discussed the Village's present plan to recodify its ordinances and, in the process, weed out those which are preempted or otherwise unenforceable.  Since then, I have made a records request to the South Orange Municipal Court and have received, among other records that I have yet to review carefully, Summons No. 0719-SC-030336, which I've placed on-line here.

As you can see, this summons charged Anthony I. Watson from Newark, an 18-year old man, with making "offensive remarks" contrary to Village Ord. 113-8.  Watson was either found guilty or pled guilty and was assessed $108 in fines and costs.

For the reasons set forth below, I believe that Ord. 113-8 is preempted by state law.  If I am right, the police should stop enforcing this code provision immediately, without waiting for the recodification process to be completed.  In order to determine whether or not I am right, I ask that the Mayor ask Village Counsel Steven Rother to make a legal determination as to the provision's validity.

Ord. 113-8 states:

Offensive remarks or gestures.

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A. No person in or on a vehicle on the streets or other public or quasi-public places shall make offensive, obscene or lewd remarks or gestures to any person on the public streets, sidewalks or other public or quasi-public open places.

B. No person on the public streets, sidewalks or other public or quasi-public places shall make any offensive, obscene or lewd remarks or gestures to any person.

Yet, the same type of conduct is regulated by N.J.S.A. 2C:33-2(b), a section within New Jersey's Disorderly Conduct code.  This statutory provision states:

Offensive language. A person is guilty of a petty disorderly persons offense if, in a public place, and with purpose to offend the sensibilities of a hearer or in reckless disregard of the probability of so doing, he addresses unreasonably loud and offensively coarse or abusive language, given the circumstances of the person present and the setting of the utterance, to any person present.

Instructive is the Appellate Division's published opinion in State v. Paserchia, 356 N.J. Super. 461 (App. Div. 2003).  Carl Paserchia, after drinking in a bar, was cursing and yelling while staggering down a West Orange public sidewalk.  He got into an argument with some police officers and told them to "go f--k yourself."  He was arrested and charged with a West Orange ordinance that stated:

No person shall disturb, by any violent, abusive, loud or threatening language, or disorderly or indecent behavior of any kind, any lawful congregation or assembly of any kind or description in any place or building within the Township.

After being convicted in both the municipal court and Superior Court, Law Division, Paserchia appealed.  The Appellate Division found that Chapter 33 of the State Criminal Code "reveals a policy to comprehensively address street behavior and other conduct in public places which may disturb citizens and disrupt peaceful society." Id. at 466.  The court went on to find that the state's Disorderly Conduct statute "is equally applicable to the conduct sought to be prohibited by the West Orange ordinance. Indeed, other than arguing that the ordinance does not require purposeful activity by the defendant, the municipality does not explain how the statute does not address municipal concerns regarding unruly behavior in public places." Ibid.

Further, the court noted that West Orange's ordinance contained a "lesser standard of culpability . . . due to the omission of purposeful conduct as required by [the Disorderly Conduct statute]."  Citing its earlier decision in State v. Felder, 329 N.J.Super. 471, 475 (App. Div. 2000), the Court found that the inconsistency between the ordinance's and the statute's culpability standards "only underscores the point that the Code and the local ordinance deal with the same criminal conduct in a different manner, and consequently the ordinance is preempted."

Similar to West Orange's code, South Orange's Ord. 113-8 does not require purposeful conduct by the actor and, unlike the statute, it does not require the reviewing court to consider "the circumstances of the person present and the setting of the utterance."  Further, South Orange does not appear to have any "unique local concerns" that warrant special, more stringent street conduct regulations than the Disorderly Conduct statute provides. 

Please let me know Mr. Rother's determination in this matter.  Also, if the Village finds that Ord. 113-8 is preempted, will the Municipal Court reimburse Defendant Watson his fine and costs?

Very truly yours,

John Paff, Chairman
New Jersey Libertarian Party's
Preempted Ordinance Repeal Project
P.O. Box 5424
Somerset, NJ  08875
Voice: 732-873-1251
Fax: 908-325-0129
e-mail: paff@pobox.com

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