State v. Rogers

Citation308 N.J.Super. 59,705 A.2d 397
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Peter ROGERS, Defendant-Appellant.
Decision Date04 February 1998
CourtNew Jersey Superior Court – Appellate Division

Ivelisse Torres, Public Defender, for defendant-appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).

Peter Verniero, Attorney General, for plaintiff-respondent (Catherine A. Foddai, Deputy Attorney General, of counsel and on the brief).

Before Judges PETRELLA, EICHEN and LESEMANN.

The opinion of the court was delivered by

PETRELLA, P.J.A.D.

After his motion to dismiss the indictment was denied, defendant Peter Rogers pled guilty to an amended disorderly persons charge of unauthorized practice of law ( N.J.S.A. 2C:21-22b(2)) pursuant to a conditional plea agreement that preserved his right to challenge the constitutionality of the statute. Rogers was sentenced to a one year probationary term, a $350 fine, 100 hours of community service, and payment of $870 in restitution. Appropriate penalties were assessed.

On appeal, filed nunc pro tunc on leave granted, Rogers argues that the trial judge erred in denying his motion to dismiss the indictment because the statute under which he was charged is void for vagueness, and thus unconstitutional.

The facts giving rise to the conviction may be simply stated. Emely Padilla had been served with a complaint by Citibank Mortgage Corp. (Citibank) which sought to foreclose on her house. Padilla received a notice dated March 24, 1995, signed by Rogers as President of Express Consolidation, Refinance & Mortgage Consultation, Inc., indicating that the pending foreclosure by Citibank had come to his attention and offering to help the Padillas with the foreclosure on their home by buying the house, solving money problems or refinancing. Padilla responded to the letter and Rogers called Padilla to discuss how his company could help.

Rogers met with Padilla at her home to explain how he was going to help her avoid foreclosure through refinancing her loan or obtaining a buyer for her house. Padilla agreed to pay the equivalent of one month's mortgage payment for these services and signed a contract on May 15, 1995, which stated: "Any fees paid are not to be construed as mortgage application fees, appraisal fees, legal fees or as any fees other than consultation fees and are non-refundable." Apparently Padilla told Rogers that she did not know how to answer Citibank's foreclosure complaint. Rogers explained to her that she had thirty-five days to file an answer. Padilla gave defendant the information he needed to prepare an answer to the complaint. Defendant prepared the answer to the complaint and submitted it to Padilla for her signature. Padilla indicated that defendant filed the answer with the court.

At his plea proceedings, Rogers admitted preparing the answer to the complaint, but stated that he gave it to Padilla to file with the court.

Rogers argues that the statute is facially vague and vague as applied, and therefore, is unconstitutional. N.J.S.A. 2C:21-22 states in pertinent part:

b. A person is guilty of a crime of the fourth degree if the person knowingly engages in the unauthorized practice of law and; ...

(2) Derives a benefit ...

Here, Rogers contends that N.J.S.A. 2C:21-22(b) is unconstitutionally vague because it fails to define what constitutes the "practice of law." 1

Generally, a presumption of validity attaches to a duly enacted statute. Matter of C.V.S. Pharmacy Wayne, 116 N.J. 490, 497, 561 A.2d 1160 (1989), cert. denied, 493 U.S. 1045, 110 S.Ct. 841, 107 L.Ed.2d 836 (1990); Piscataway Township Bd. of Educ. v. Caffiero, 86 N.J. 308, 318, 431 A.2d 799, appeal dismissed, 454 U.S. 1025, 102 S.Ct. 560, 70 L.Ed.2d 470 (1981); Fried v. Kervick, 34 N.J. 68, 74, 167 A.2d 380 (1961). Nevertheless, vague laws are unenforceable under the Federal and State Constitutions. See U.S. Const. amend. V; N.J. Const. art. I, p 1. The vagueness doctrine is grounded in concepts of fairness, and "requires that a law be sufficiently clear to apprise an ordinary person of its reach." Matter of CVS Pharmacy of Wayne, supra, 116 N.J. at 500, 561 A.2d 1160 (citing Brown v. City of Newark, 113 N.J. 565, 577, 552 A.2d 125 (1989); State v. Lee, 96 N.J. 156, 165-166, 475 A.2d 31 (1984); Town Tobacconist v. Kimmelman, 94 N.J. 85, 125, 462 A.2d 573 (1983)). See In re Polk License Revocation, 90 N.J. 550, 575, 449 A.2d 7 (1982). " 'The underlying principle [is] that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.' " State v. Lashinsky, 81 N.J. 1, 17, 404 A.2d 1121 (1979) (quoting Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584, 590 (1972)). The Supreme Court noted in Town Tobacconist, supra, 94 N.J. at 118, 462 A.2d 573:

Clear and comprehensible legislation is a fundamental prerequisite of due process of law, especially where criminal responsibility is involved. Vague laws are unconstitutional even if they fail to touch constitutionally protected conduct, because unclear or incomprehensible legislation places both citizens and law enforcement officials in an untenable position. Vague laws deprive citizens of adequate notice of proscribed conduct ... and fail to provide officials with guidelines sufficient to prevent arbitrary and erratic enforcement. (citation omitted).

See also Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110, 115 (1972); Lanzetta v. State of New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888, 890 (1939).

As a matter of due process, if a law is so vague "that persons 'of common intelligence must necessarily guess at its meaning and differ as to its application,' " it is considered void and unenforceable. Town Tobacconist, supra, 94 N.J. at 118, 462 A.2d 573 (quoting Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328 (1926)). Our Supreme Court also has indicated that "[p]enal laws ... are subjected to sharper scrutiny and given more exacting and critical assessment under the vagueness doctrine than civil enactments." State v. Cameron, 100 N.J. 586, 592, 498 A.2d 1217 (1985).

A statute can be challenged as either "facially" vague or vague "as applied." "A statute may be vague facially if 'there is no conduct that it proscribes with sufficient certainty.' " Matter of C.V.S. Pharmacy Wayne, supra, 116 N.J. at 501, 561 A.2d 1160 (quoting State v. Cameron, supra, 100 N.J. at 593, 498 A.2d 1217). If a statute does not prohibit the conduct sought to be proscribed with sufficient clarity it can be challenged "as applied." State v. Afanador, 134 N.J. 162, 175, 631 A.2d 946 (1993). In such case, the relevant question is "whether the statute clearly extends to the acts that the State alleges defendant committed." Id. at 165, 631 A.2d 946.

Nevertheless, we have noted that "[e]ven if behavior is not susceptible to precise definition, the statute may be constitutional." State v. Saunders, 302 N.J.Super. 509, 521, 695 A.2d 722 (App.Div.), certif. denied, 151 N.J. 470, 700 A.2d 881 (1997). In State in Interest of B.N., 99 N.J.Super. 30, 34, 238 A.2d 486 (App.Div.1968), where defendant was convicted for violating a municipal ordinance which prohibited "[l]oud, offensive, disorderly, threatening, abusive, or insulting language" we concluded [W]here the legislative regulatory objective is appropriate and the conduct intended to be prohibited is not fairly susceptible of definition in other than general language, there is no constitutional impediment to the use of such language. State v. Dennis, 80 N.J.Super. 411, 418 (App.Div.1963); United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947). That there may be marginal cases in which it becomes difficult to determine the side of a line on which a particular fact situation falls is not a sufficient reason to hold the language too ambiguous to define a penal offense. State v. Monteleone, 36 N.J. 93, 99 (1961); State v. New York Central Railroad Co., 37 N.J.Super. 42, 48 (App.Div.1955).

See also State v. Lee, supra, 96 N.J. at 166, 475 A.2d 31 (stating that the Legislature may address criminal conduct by "prepar[ing] a detailed catalogue of proscribed activities or, within constitutional limits, address[ing] the problem more generally").

Although the Supreme Court remarked that the "practice of law does not lend itself 'to [a] precise and all-inclusive definition,' " it is clear that the "practice of law" is not limited to litigation, "but extends to legal activities in many non-litigious fields." New Jersey State Bar Ass'n v. Northern New Jersey Mortgage Associates, 32 N.J. 430, 437, 161 A.2d 257 (1960) (quoting in part Auerbacher v. Wood, 142 N.J. Eq. 484, 485, 59 A.2d 863 (E. & A.1948)). Hence, the practice of law is not "limited to the conduct of cases in court but is engaged in whenever and wherever legal knowledge, training, skill and ability are required." Stack v. P.G. Garage, Inc., 7 N.J. 118, 121, 80 A.2d 545 (1951). What constitutes the practice of law is often required to be decided on a case by case basis because of the broad scope of the fields of law. See In re Opinion No. 24 of Committee on Unauthorized Practice of Law, 128 N.J. 114, 122, 607 A.2d 962 (1992).

Rogers argues that the statute is facially vague because it does not precisely define any activity. However, merely because a criminal statute fails to define a term will not necessarily render it facially vague, particularly where it is a term of common usage or has a readily ascertainable meaning. See State v. Afanador, supra, 134 N.J. at 171, 631 A.2d 946 (a person of common intelligence can comprehend the meaning of the words "organizer, supervisor, financier or manager"); see also Arnett v Kennedy, 416 U.S. 134, 159, 94 S.Ct. 1633, 1647, 40 L.Ed.2d 15, 36 (1974). In the absence...

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  • In re Lerner
    • United States
    • Supreme Court of Nevada
    • December 24, 2008
    ...Montana Supreme Court Com'n on Unauthorized Practice v. O'Neil, 334 Mont. 311, 147 P.3d 200. 215 (2006); State v. Rogers, 308 N.J.Super. 59, 705 A.2d 397, 400-02 (Ct.App.Div. 1998); Drew v. Unauthorized Prac. of Law Comm., 970 S.W.2d 152, 155 (Tex.App.1998); Bd. of Com'rs, Utah State Bar v.......
  • Johnson v. McClellan
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    • New Jersey Superior Court – Appellate Division
    • July 19, 2021
    ...of law is often required to be decided on a case by case basis because of the broad scope of the fields of law." 308 N.J. Super. 59, 66, 705 A.2d 397 (App. Div. 1998). See also In re Op. No. 24 of Comm. on Unauthorized Prac. of Law, 128 N.J. 114, 122, 607 A.2d 962 (1992) ("Essentially, the ......
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    ...challenge to statute proscribing practice of law where defendant prepared documents for client's signature); State v. Rogers, 308 N.J.Super. 59, 705 A.2d 397, 402 (1998) (holding criminal statute proscribing practice of law was not unconstitutionally vague as applied to defendant who advise......
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