Marvin, Application of, A--458

• Decision Date: 29 September 1967
• Docket Number: No. A--458,A--458
• Citation: 234 A.2d 408,97 N.J.Super. 62
• Parties: Application of Walter MARVIN, Jr., Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 62

97 N.J.Super. 62

234 A.2d 408

Application of Walter MARVIN, Jr., Appellant.

No. A--458.

Superior Court of New Jersey Appellate Division.

Argued May 1, 1967.

Decided Sept. 29, 1967.

Michael D. Schottland, Freehold, for appellant.

John W. Hayden, Jr., Deputy Atty. Gen., for respondent (Arthur J. Sills, Atty. Gen., attorney).

Before Judges SULLIVAN, KOLOVSKY and CARTON.

The opinion of the court was delivered by

CARTON, J.A.D.

Applicant, Walter Marvin, Jr., seeks to review the County Court's denial of his application for a firearms purchaser identification card. The chief of police of Middletown Township denied the application because applicant failed to answer certain questions on the form provided as to his membership in subversive organizations or those which seek to deprive others of their constitutional rights. N.J.S. 2A:151--35, N.J.S.A.

After a prompt hearing held before the Monmouth County Court in the manner provided for review in the statute, the trial judge upheld the action of the police chief and rejected the claims of the applicant that the First Amendment to the United States Constitution forbids the statutorily directed inquiry and that the statute is void for vagueness.

The application form promulgated by the Superintendent of State Police, pursuant to statutory direction, contains three questions to which the applicant objects:

'#22. Are you presently or have you ever been a member of any organization which advocates or approves the commission of acts of force or violence, either to overthrow the government of the United States or of this State, or which seeks to deny others of their rights under the Constitution of either the United States or the State of New Jersey? Yes or No.

#23. If yes to the above question, what is the name of the organization?

#24. Date of Membership.'

These questions follow others inquiring as to whether the applicant is a former criminal, alcoholic, habitual drunkard or narcotics addict, and are made pursuant to N.J.S. 2A:151--35, N.J.S.A. which, in pertinent part, requires the applicant to answer:

'* * * whether he presently or ever has been a member of any organization, which advocates or approves the commission of acts of force and violence either to overthrow the Government of the United States or of this State, or which seeks to deny others their rights under the Constitutions of either the United States or the State of New Jersey, * * *.'

We note, in passing, an inadvertent substitution of the word 'or' for the word 'and' in the statutory phrase, 'force and violence'; the use of 'or' in the conjunctive is commonplace in the law.

It should also be noted that N.J.S. 2A:151--44.2, N.J.S.A., although not directly challenged in this action, requires in parallel language that similar questions be included on applications for permits to carry a pistol or revolver. If the applicant provides false information in applying for any of these he may then be found guilty of a high misdemeanor. N.J.S. 2A:151--48, N.J.S.A.

Applicant claims that he is an active gun enthusiast, that he lectures on firearms and that, as owner of some 50 rifles and shotguns, he needs the identification card in order to transport these guns to various lectures and related activities. Contrary to the contention of the State of New Jersey, these circumstances surely invest him with standing to complain. The contention that applicant's motion for a hearing and his subsequent appeal are premature is also without merit.

Basically, applicant here claims that his refusal to provide information as to his membership in certain groups is not such a relevant consideration that it would alone justify denial of the card and put him to the choice either of answering and thus revealing his associational interests or accepting the continued denial of the permit. The procedure chosen by the applicant has squarely raised this issue.

Two companion cases in the United States Supreme Court have dealt with a similar question--whether a candidate for admission to the Bar could be constitutionally denied admission upon his refusal to answer any questions as to his membership in the Communist Party or other listed organizations. Both resolved this conflict of State and private interests in favor of the State's need to obtain an answer to an inquiry relevant to the applicant's qualifications. Konigsberg v. State Bar of California, 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105 (1961); In re Anastaplo, 366 U.S. 82, 81 S.Ct. 978, 6 L.Ed.2d 135 (1961). See also Garner v. Board of Public Works of City of Los Angeles, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317 (1951) (refusal to take oath of nonmembership).

To answer the plaint of the applicant by emphasizing that he could still obtain the card by simply answering the question is to misconstrue the manner in which he considers himself aggrieved. The question is whether it is permissible for the State to ask--not whether it may deny upon receiving an affirmative answer.

The applicant also has standing to complain that the statute is void for vagueness under the First Amendment. The dilemma within which the asserted vagueness places the applicant invests him with standing; he may either refuse to answer and suffer a proper denial of issuance or answer and run the risk of a criminal proceeding for providing false information. Cramp v. Board of Public Instruction, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961). This despite the fact that in any such criminal proceeding any vice of overbreadth to which the statute is subject, and of which he was unaware, would negative scienter on his part.

Whether the associational interests indicated by the statute bear a reasonable relationship to the obligation of the State to ensure that only qualified individuals receive identification cards for firearms, and whether the inquiry is so peculiarly responsive to the evil which the statute was designed to reach that it justifies the restrictions placed on the individual's associational privacy, must now be determined.

The danger to law and order represented by armed, organized groups far exceeds that posed by any individual. These organizations can quickly magnify the destructive potential of individual, armed members and form bands capable of both confronting and challenging the authority of the local police. Such groups may provoke riots and other forms of domestic unrest whose intensity and duration will be directly related to the armed power possessed by the group. They also may by their presence deter others from protesting peaceably and eventually encourage these nonviolent organizations to take up arms in response to their activities.

The State may not safely ignore such threats. Nor does the Constitution require the State to remain helpless when timely safeguards are deemed necessary to assure the maintenance of law and order and to guarantee others the continuing exercise of their civil rights.

Justice Frankfurter also gave expression to this thought:

'The Constitution of the United States does not render the United States or the States impotent to guard their governments against destruction by enemies from within. It does not preclude measures of self-protection against anticipated overt acts of violence. Solid threats to our kind of government--manifestations of purposes that reject argument and the free ballot as the means for bringing about changes and promoting progress--may be met by preventive measures before such threats reach fruition. * * *' Wieman v. Updegraff, 334 U.S. 183, 195, 73 S.Ct. 215, 221, 97 L.Ed. 216, 224 (1952) (concurring).

In this case the inquiry made is directly relevant to the governmental interest in the 'public health, safety or welfare' (N.J.S. 2A:151--33, N.J.S.A.) and may indeed be necessary to insure the preservation of our democratic processes.

Similar inquiries have been considered justifiable when the nonrespondent sought to obtain a position of power or trust, or when the misuse of that power could seriously dislocate the social system. See Garner v. Board of Public Works, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317 (1951) (municipal employees); American Communications Association v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925 (1950) (power of union official to call a political strike). Here the applicant seeks not a position of power but an instrument of power; the dangerous potential possessed by organized, armed groups may far exceed any power conferred by position and certainly justifies inquiry by the State. By comparison, members of those organizations known to engage in only peaceful protest would not be required to disclose membership and the applicant could answer the inquiry as to membership ($22) in the negative. Cf. Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963).

Parallel concerns are involved in those cases which justify inquiry as to membership in a group whose conduct the state has a right to prohibit, and those cases which uphold the validity of a statute when challenged for overbreadth in its prohibition of group activity. In both instances the justificatory and dispositive circumstance may be found in the potentiality for violence of one group not possessed by the other. This distinction was aptly delineated by Justice Goldberg in Cox v. State of Louisiana, 379 U.S. 536, 574, 85 S.Ct. 453, 485, 13 L.Ed.2d 471 (1965):

'We reaffirm the repeated holdings of this Court that our constitutional command of free speech and assembly is basic and fundamental and encompasses peaceful social protect, so important to the preservation of the freedoms treasured in a democratic society. We also reaffirm the repeated decisions of this Court that there is no place for violence in a democratic society dedicated to liberty under law, * * *' (85 S.Ct. at p. 485, 13 L.Ed.2d, at p. 498.)

The required information is reasonably calculated to furnish the officer with...