Allen v. City of Bordentown

• Decision Date: 13 February 1987
• Citation: 524 A.2d 478,216 N.J.Super. 557
• Parties: William ALLEN and Patricia Schuster, Plaintiffs, v. CITY OF BORDENTOWN, Defendant, and Township of Willingboro, Intervenor.
• Court: New Jersey Superior Court

Page 557

216 N.J.Super. 557

524 A.2d 478

William ALLEN and Patricia Schuster, Plaintiffs, v. CITY OF BORDENTOWN, Defendant and Township of Willingboro, Intervenor.

Superior Court of New Jersey, Law Division Burlington County.

Decided Feb. 13, 1987.

Charles J. Casale, Jr., Trenton, for plaintiffs

Jean Hartman Culp, Cherry Hill, for defendant (Davis, Reberkenny & Abromowitz, attorneys).

William John Kearns, Jr., Wallingboro, for intervenor (Kearns & Kearns, attorneys).

HAINES, A.J.S.C.

Numerous municipalities throughout the country have adopted curfew ordinances intended for the control and protection of juveniles. The dissent to the denial of certiorari in Bykofsky v. Middletown, 401 F.Supp. 1242 (M.D.Pa.1975), aff'd 535 F.2d 1245 (3 Cir.1976), cert. denied 429 U.S. 964, 97 S.Ct. 394, 50 L.Ed.2d 333 (1976), refers to "thousands of towns with similar [curfew] ordinances." 429 U.S. at 965, 97 S.Ct. at 395. A few state and federal courts have considered their validity but no case has reached the United States Supreme Court. Curfew ordinances have not been the subject of any published The City of Bordentown adopted its nonemergency curfew ordinance in 1980 as an amendment to an existing anti-loitering ordinance. It prohibits minors under 18 years-of-age, with certain exceptions, from being in public places between the hours of 9:00 p.m. and 6:00 a.m. and charges parents with responsibilities for their children's behavior. Its reasons for doing so do not appear in the record as part of the enactment or otherwise.

opinion in New Jersey, although several of our municipalities have adopted them. Two are involved in the present litigation; Newark adopted one in 1984, Newark, N.J. Rev. Ordinances tit. 17, ch. 2, § 4 (1984), Trenton in 1983, Trenton, N.J. Ordinances, §§ 83-134 (1983). The issues raised by these ordinances involve not only the constitutional rights of children and parents but also the power of government to curtail those rights. These questions have not been settled.

Plaintiffs, William Allen and Patricia Schuster, as parents of Keith Allen and Scott Schuster, age 16 and 17 respectively, have been charged with curfew violations. They allegedly occurred when (1) Keith Allen was found walking on a public street in the city at 10:46 p.m. on May 15, 1986, and (2) when Scott Schuster was found eating in a restaurant in the city at 10:15 p.m. The parents, on conviction, are subject to a fine not exceeding $300, or imprisonment not exceeding 30 days, or both.

The parents have applied to this court for an injunction enjoining the enforcement of the ordinance. The Township of Willingboro has been permitted to intervene by reason of its concern about the validity of its own curfew ordinance, although the question of its validity is not considered in these proceedings. This opinion responds to an order to show cause. It concludes that Bordentown's curfew ordinance is facially unconstitutional and therefore unenforceable.

A. Police Power.

N.J.S.A. 40:48-1 provides that municipalities may "make, amend, repeal and enforce ordinances" to preserve the public peace and order and to prohibit any practice tending to annoy or injure persons in the public streets. N.J.S.A. 40:48-2 authorizes municipalities to adopt ordinances for the "protection of persons and property, and for the preservation of the public health, safety and welfare...." Our Constitution provides that any law concerning municipal corporations shall be liberally construed in their favor. N.J. Const. (1947), Art. IV, § VII, par. 11. Moreover, ordinances are presumed valid and reasonable. "This presumption may be overcome only by proofs that preclude the possibility that there could have been any set of facts known to the legislative body or which could reasonably be assumed to have been known which would rationally support a conclusion that the enactment is in the public interest." Hutton Park Gardens v. West Orange, 68 N.J. 543, 565, 350 A.2d 1 (1975).

The Bordentown curfew ordinance is examined here with these precepts in mind.

B. Vagueness.

An ordinance containing language so imprecise that it cannot be understood by persons of ordinary intelligence does not give fair notice of the acts which it forbids or requires and therefore denies due process. Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974). An ordinance which fails to set forth adequate standards attracts discriminatory enforcement. Ibid. Vague language and inadequate standards also permit the subjective and therefore impermissible enforcement of penal ordinances by law enforcement personnel. Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222 (1972). The claim that the Bordentown ordinance is unconstitutionally vague is clearly correct.

Section 4 of the ordinance authorizes a police officer "in the exercise of reasonable judgment," to determine that any The words "reasonable judgment," standing alone, provide no ascertainable standard by which to measure the decision of a police officer. This is especially significant when dealing with a law which restricts constitutionally guaranteed freedoms and provides criminal sanctions for its violation. What judgment is "reasonable"? The discretion given to the officer is nearly unrestricted. No comfort is provided by the law's requirement that the officer's "reasonable judgment" be used to determine whether "the presence of any person ... in any public place is creating, causing or contributing" to:

                person in any "public place" is violating the anti-loitering provisions of the ordinance.  He may order such person to leave "if he deems it necessary for the preservation of the public peace and safety, or the protection ... use or enjoyment" of public or private real property and "facilities."   If the order is not obeyed, or the offender returns to the public place within three hours, the ordinance is violated.  The definition of "public place" includes private real property and certain motor vehicles.  The term "facilities" is not defined
                

a danger of the breach of the peace; ... any disturbance or annoyance to the comfort and repose of any person; obstruction of the free passage of pedestrians, bicycles, baby carriages and strollers, or vehicles; or obstruction, molestation or inference with any person by the utterance of loud and offensive or profane or indecent language, or audible and annoying, offensive, disgusting, insulting or sexually suggestive remarks ... to ... any person in whose hearing the same are made.

These provisions permit the officer in the exercise of his "reasonable judgment" to speculate subjectively as to whether the enumerated dangers are likely to occur in the future, whether action is necessary to preserve the peace, what may be an "annoyance," what constitutes "free passage" of pedestrians and vehicles and what language is "offensive or profane or indecent ... or annoying."

Many of these words, if viewed as modifiers of the term "reasonable judgment," are vague themselves. What is likely to "create a danger" of a breach of the peace? What is a "disturbance or annoyance"? Coates v. Cincinnati, 402 U.S. One court, dealing with a curfew ordinance, found that the words "reasonable necessity" were not impermissibly vague. In Bykofsky v. Middletown, supra, the court said that "reasonable necessity" is a widely used, well understood phrase constituting an ascertainable fixed standard. 401 F.Supp. at 1249. "Reasonable necessity," however, is not the same as "reasonable judgment." Arguably, "necessity" is a term more precise than "judgment" but this court finds both phrases to be less instructive than the law requires.

                611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971) considered an ordinance which prohibited three or more persons from assembling on a sidewalk and conducting themselves in a manner which would be "annoying to persons passing by."   The Court held that the word "annoying" does not provide a standard and that the ordinance was unconstitutional.  Cincinnati was free to enact reasonable ordinances dealing with the use of sidewalks and streets but could not "constitutionally[524 A.2d 482]  do so through the enactment and enforcement of an ordinance whose violation may entirely depend upon whether or not a policeman is annoyed."  Id. at 614, 91 S.Ct. at 1688.   What is "free passage"?   Does a pedestrian or a bicycle or a stroller need three feet or six feet for passage to be free?   What language is "offensive"?   Other terms are equally imprecise but there is no point in extending the analysis.  These modifiers do not modify;  they expand the almost unfettered discretion of the officer.
                

Other provisions in the Bordentown ordinance are equally vague and equally destructive to its validity. Section 6 provides that the curfew shall not apply to a minor who is "upon an emergency errand or upon legitimate business," if the minor carries a police department pass. No definition of these terms appears in the ordinance. An "emergency errand" could be one required for the purpose of securing immediate medical assistance for an injured parent or one merely designed to correct a social omission, such as the failure to deliver a promised gift. The first is surely an "emergency errand" but The same must be said of the words "legitimate business." The word "legitimate" is not defined. Does it mean business permitted by law? Is business "legitimate" because the minor so believes? Who is to say what is "legitimate business"? Again, the definition will be supplied by a police officer on a subjective basis permitting the discriminatory enforcement of the ordinance.

most would think the second is not. That determination, however, is subjective. The failure to deliver the gift may promote a family crisis and therefore be clearly an "emergency" in the minds of all members of the family but not in the mind of a police officer. The phrase cannot survive the vagueness...