State v. Ulesky

• Decision Date: 28 March 1968
• Docket Number: No. A,A
• Citation: 100 N.J.Super. 287,241 A.2d 671
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. John ULESKY, Defendant-Appellant. pp. 28. --Criminal, New Jersey
• Court: New Jersey County Court

Page 287

100 N.J.Super. 287

241 A.2d 671

STATE of New Jersey, Plaintiff-Respondent, v. John ULESKY, Defendant-Appellant.

No. App. 28.

Monmouth County Court

Law Division--Criminal, New Jersey.

March 28, 1968.

Harold Feinberg, Point Pleasant Beach, for plaintiff-respondent.

Paul J. Feldman, Asbury Park, for defendant-appellant.

McGOWAN, J.C.C.

This is an appeal from the Municipal Court of the Borough of Belmar on a trial de novo under the Rules governing such appeals. The defendant was convicted of violating Chapter 3 of the Revised Ordinances of 1966 of the Borough of Belmar, specifically sections 3--1.1 through 3--1.6 of that Chapter. ¹ The ordinance requires that every person who has been convicted of a misdemeanor or high misdemeanor in New Jersey or any other state within the past ten years and has not received a full executive pardon shall, upon residing in Belmar or remaining in Belmar for more than 24 hours, register with the chief of police. Revelation of pertinent details of the crime committed and his present residence are required. Fingerprinting and photographing are also required. The ordinance then provides for the issuance of a registration card to be carried at all times while said person is in the Borough. The ordinance also provides for a violation for failure to register, failure to carry a card or for giving false information.

The case was submitted on stipulation and no testimony was presented. It was stipulated that the defendant-appellant violated the terms of this ordinance and that he was convicted in the Hudson County Court on February 23, 1965 of Forgery and False Pretense in violation of N.J.S. 2A:109--1 and N.J.S. 2A:111--1, N.J.S.A., which is a crime within the ordinance definition of a crime. He also admitted that he had notice of the ordinance and failed to register in accordance with its requirements. Similar ordinances of 19 other Monmouth County communities were also marked into evidence by consent of the parties. These contain varying residence requirements, and in some, immediate registration is required.

In this hearing the sole issue presented to this court is whether the ordinance of the Borough of Belmar requiring criminal registration is valid.

The defendant-appellant makes a broad frontal attack upon the validity and constitutionality of the ordinance in that, he asserts:

1. The Borough does not have the power to enact such an ordinance;

2. The ordinance violates defendant-appellant's constitutional rights in that;

(a) The ordinance violates the equal protection clause of the Federal and State Constitutions;

(b) The ordinance violates the right to travel and interferes with interstate commerce;

(c) The ordinance constitutes both an Ex post facto law and a bill of attainder.

(d) The ordinance violates the due process clause of the Federal and State Constitutions.

3. The ordinance is pre-empted by State Law.

The Borough denies each one of these positions and also affirmatively argues that the County Court does not have the power in this proceeding to determine constitutional questions.

Initially, it is important to note that the State was represented at trial and argument by the Borough Attorney of Belmar, the Attorney-General of New Jersey refusing to intercede at this level. It is also interesting to note that as of this date the research of counsel and of the court indicates that there is no reported decision in New Jersey regarding the validity of local criminal registration ordinances such as we have in this case and, therefore, this court is concerned with a novel question for solution.

The court takes judicial notice of the fact that Belmar is located on the Atlantic coast in central Monmouth County in an area whose economy is predicated largely on seasonal revenues; its winter population is just over 5,000 but during the summer months there is a tremendous increase. It is urged and the court finds that in such resort communities special problems arise involving the security, safety, and welfare of such a community and its inhabitants with a great influx of transient vacationers and employees of resort establishments; motels, restaurants, night clubs and other places of attraction to the tourist trade. The problems in Belmar are compounded by its close proximity to two race tracks, Monmouth Park and Freehold Raceway, which remain open during the greater part of the resort season, each year.

With this background in mind, we come to the overriding policy of the courts in any attack upon the validity of a municipal ordinance; that is, the strong presumption of constitutionality with which the ordinance is cloaked. See New Jersey Chapter, American Institute of Planners v. New Jersey State Board of Professional Planners, 48 N.J. 581, 609, 227 A.2d 313 (1967); Roe v. Kervick, 42 N.J. 191, 229, 199 A.2d 834 (1964). A legislative act will not be declared void unless its repugnancy to the constitution is clear beyond a reasonable doubt. To declare a statute unconstitutional is a judicial power to be delicately exercised. Harvey v. Essex County Board of Freeholders, 30 N.J. 381, 386, 153 A.2d 10 (1959). Justice Francis, in discussing the presumption in Jones v. Haridor Realty Co., 37 N.J. 384, 181 A.2d 48 (1962) said:

'One of the basic functions of government is to safeguard the health, safety and welfare of its people. Upon the appearance of conditions detrimental to their welfare, it has the duty to apply remedial measures. The courts in turn are required to respect and sustain such efforts as an exercise of the legislative police power so long as they are not clearly arbitrary and are reasonably related to the objective sought to be attained.' (at p. 393, at p. 485 of 181 A.2d)

The wisdom of the legislature of the means it selects are not subject to review or interference by the courts except in the protection of fundamental constitutional rights. Gundaker Central Motors v. Gassert, 23 N.J. 71, 81, 127 A.2d 566 (1956). The judiciary does not pass upon the wisdom of a municipal ordinance nor does it nullify decisions of a governing body on the subject of local welfare merely because a debatable issue is presented. Fred v. Mayor and Council of Old Tappan Borough, 10 N.J. 515, 92 A.2d 473 (1952).

This test of constitutionality and the presumption attending thereto is even greater at the trial level. Neeld v. Automotive Products Credit Association, 21 N.J.Super. 159, 90 A.2d 558 (Cty. Ct. 1952). In Neeld, supra, Judge Fulop, discussing a price fixing statute, said:

'It is clear that it is not the function of this court to pioneer in the field of constitutional law. The presumption of constitutionality must be applied with greater force here than in the appellate courts.

The pattern of the law must be drawn by the appellate courts. The trial courts, especially those of limited jurisdiction, must follow, not lead.' (at p. 161, at p. 560 of 90 A.2d)

This judicial policy was also affirmed by the Appellate Division in State v. Cannarozzi, 77 N.J.Super. 236, 186 A.2d 113 (App.Div.1962), in an appeal from an acquittal for violation of the Unemployment Compensation Law. That court commented that inferior courts should assume an act of the Legislature to be constitutional unless it so clearly conflicts with the Constitution as to leave no reasonable doubt of its defectiveness. Therefore, in order for this court to determine the ordinance under consideration to be invalid, it must be shown to be unconstitutional or an abuse of the power of the municipality beyond a reasonable doubt, and the court determines that the defendant has failed to make such a showing on this point.

Proceeding now to consider defendant's argument that the Borough of Belmar does not have the statutory power to pass such an ordinance, I find that the governing body of every municipality derives its power from N.J.S.A. 40:48--1. It may make, amend, repeal and enforce ordinances to:

'Maintain order, to prevent vice, drunkenness and immorality; to preserve the public peace and order; to prevent and quell riots, disturbances and disorderly assemblages.'

This general power is broadened by N.J.S.A. 40:48--2, which reads:

'Any municipality may make, amend, repeal and enforce such other ordinances, regulations, rules and by-laws not contrary to the laws of this state or of the United States, as it may deem necessary and proper for the good government, order and protection of persons and property and for the preservation of the public health, safety and welfare of the municipality and its inhabitants, and as may be necessary to carry into effect the powers and duties conferred and imposed by this subtitle, or by any law.'

The statute outlines a basic test which can be categorized as necessity or the public need and it has been held that A police regulation, in this regard 'shall not go beyond the demands of the public interest which vindicates its exercise, * * *; an exercise of power that exceeds the bounds of reasonable necessity would run afoul of the fundamental common right to engage in a lawful pursuit and of the right of private property secured by the Fifth and Fourteenth Amendments of the Federal Constitution and (Art. I, par. 1) * * * of the State Constitution.' Reingold v. Harper, 6 N.J. 182, 191, 78 A.2d 54, 58. (1951)

However, liberal construction of ordinances adopted under the statute is made mandatory by our Constitution of 1947 (Art. IV, § VII, par. 11) and there attaches to all such ordinances a presumption of validity not to be overcome unless the evidence clearly establishes its unreasonableness. Vickers v. Twp. Com. of Gloucester Twp., 37 N.J. 232, 181 A.2d 129 (1962). The leading case on the exercise of police power by a municipality and the limitations thereupon is N.J. Good Humor, Inc. v. Bradley Beach, 124 N.J.L. 162, 11 A.2d 113 (E. & A.1939) and it is stated by the court in the following language:

'There cannot be in the name of police regulation, an...