State v. Vawter

Citation642 A.2d 349,136 N.J. 56
Parties, 63 USLW 2015 STATE of New Jersey, Plaintiff-Respondent, v. Steven D. VAWTER and David J. Kearns, Defendants-Appellants.
Decision Date26 May 1994
CourtUnited States State Supreme Court (New Jersey)

Stephen M. Pascarella, Jersey City, for appellant David J. Kearns (Allegra, Pascarella & Nebelkopf, attys.).

John T. Mullaney, Jr., Tinton Falls, for appellant Steven D. Vawter.

Robert A. Honecker, Jr., Second Asst. Prosecutor, for respondent (John Kaye, Monmouth County Prosecutor, atty.).

Debra L. Stone, Deputy Atty. Gen., for amicus curiae, Atty. Gen. of New Jersey (Fred DeVesa, Acting Atty. Gen., atty.).

The opinion of the Court was delivered by

CLIFFORD, J.

Defendants are charged with violations of N.J.S.A. 2C:33-10 (Section 10) and -11 (Section 11), New Jersey's so-called hate-crime statutes. They contend that the statutes are unconstitutional under the First and Fourteenth Amendments to the United States Constitution. The trial court denied defendants' motion to dismiss the indictment, and the Appellate Division granted leave to appeal. We granted defendants' motion for direct certification, 133 N.J. 407, 627 A.2d 1123 (1993). Following, as we must, the United States Supreme Court's decision in R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), we now declare the cited statutes unconstitutional, and therefore reverse the judgment below.

I

On May 13, 1991, a person or persons spray-painted a Nazi swastika and words appearing to read "Hitler Rules" (the spray-painters misspelled "Hitler") on a synagogue, Congregation B'nai Israel, in the Borough of Rumson. On that same night the same person or persons also spray-painted a satanic pentagram on the driveway of a Roman Catholic church, the Church of the Nativity, in the neighboring Borough of Fair Haven.

In March 1992 the Monmouth County Prosecutor's Office received confidential information from witnesses identifying defendants, Stephen Vawter and David Kearns, as the persons who had spray-painted the synagogue and the driveway of the church. In due course a Monmouth County grand jury returned a twelve-count indictment against Vawter and Kearns. Counts One through Four charged defendants with having put another in fear of violence by placement of a symbol or graffiti on property, a third-degree offense, in violation of Section 10; Counts Five through Eight charged defendants with fourth-degree defacement contrary to Section 11; Counts Nine and Ten charged defendants with third-degree criminal mischief in violation of N.J.S.A. 2C:17-3; and Counts Eleven and Twelve charged defendants with conspiracy to commit the offenses charged in Counts One through Ten.

Defendants moved to dismiss Counts One through Eight of the indictment on the ground that Sections 10 and 11 violate their First and Fourteenth Amendment rights under the United States Constitution. Section 10 reads as follows:

A person is guilty of a crime of the third degree if he purposely, knowingly or recklessly puts or attempts to put another in fear of bodily violence by placing on public or private property a symbol, an object, a characterization, an appellation or graffiti that exposes another to threats of violence, contempt or hatred on the basis of race, color, creed or religion, including, but not limited to[,] a burning cross or Nazi swastika. A person shall not be guilty of an attempt unless his actions cause a serious and imminent likelihood of causing fear of unlawful bodily violence.

Section 11 provides:

A person is guilty of a crime of the fourth degree if he purposely defaces or damages, without authorization of the owner or tenant, any private premises or property primarily used for religious, educational, residential, memorial, charitable, or cemetery purposes, or for assembly by persons of a particular race, color, creed or religion by placing thereon a symbol, an object, a characterization, an appellation, or graffiti that exposes another to threat of violence, contempt or hatred on the basis of race, color, creed or religion, including, but not limited to, a burning cross or Nazi swastika.

In denying defendants' motion to dismiss the first eight counts of the indictment the trial court, satisfied that it could distinguish Sections 10 and 11 from the St. Paul ordinance in R.A.V., held Sections 10 and 11 constitutional. On this appeal we address defendants' constitutional challenge to those sections.

II

Our cases recognize that "[i]n the exercise of police power, a state may enact a statute to promote public health, safety or the general welfare." State, Dep't of Envtl. Protection v. Ventron Corp., 94 N.J. 473, 499, 468 A.2d 150 (1983). The authority of the State to regulate is limited, however; a State may not exercise its police power in a manner "repugnant to the fundamental constitutional rights guaranteed to all citizens." Gundaker Cent. Motors v. Gassert, 23 N.J. 71, 79, 127 A.2d 566 (1956), appeal denied, 354 U.S. 933, 77 S.Ct. 1397, 1 L.Ed.2d 1533 (1957). Here, defendants charge that the statutes under which they were charged offend their fundamental constitutional right to freedom of speech under the First Amendment.

Sections 10 and 11 do not proscribe speech per se. Rather, they prohibit certain kinds of conduct. Section 10 prohibits the conduct of "put[ting] or attempt[ing] to put another in fear of bodily violence by placing on * * * property a symbol * * * that exposes another to threats of violence, contempt or hatred on the basis of race, color, creed or religion, including, but not limited to[,] a burning cross or Nazi swastika." Section 11 forbids the conduct of "defac[ing] or damag[ing private premises or property] * * * by placing thereon a symbol * * * that exposes another to threats of violence, contempt or hatred on the basis of race, color, creed or religion, including, but not limited to, a burning cross or Nazi swastika."

To decide whether the conduct proscribed by Sections 10 and 11 is "sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments," Spence v. Washington, 418 U.S. 405, 409, 94 S.Ct. 2727, 2730, 41 L.Ed.2d 842, 846 (1974), we must determine whether "[a]n intent to convey a particularized message [i]s present" and whether those who view the message have a great likelihood of understanding it. Id. at 410-11, 94 S.Ct. at 2730, 41 L.Ed.2d at 847. The Supreme Court has concluded in a variety of contexts that conduct is sufficiently expressive to fall within the protections of the First Amendment. See, e.g., Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (holding protected the burning of flag to protest government policies); Spence, supra, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (holding protected the placing of peace symbol on flag to protest invasion of Cambodia and killings at Kent State); Tinker v. Des Moines School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (holding protected the wearing of black armbands to protest war in Vietnam).

In R.A.V., supra, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305, the United States Supreme Court determined that a St. Paul, Minnesota, Bias-Motivated Crime Ordinance proscribed expressive conduct protected by the First Amendment. The ordinance read:

Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.

[St. Paul, Minn. Legis. Code § 292.02 (1990).]

As one court has noted, "While the [R.A.V.] Court did not explicitly state that * * * acts prohibited by the [St. Paul ordinance] are expression cognizable by the First Amendment, such a conclusion necessarily precedes the Court's holding that the [ordinance] facially violate[s] the First Amendment." State v. Sheldon, 332 Md. 45, 629 A.2d 753, 757 (1993).

Taking the lead from the Supreme Court, States with similar hate-crime statutes have determined also that the conduct proscribed by their statutes constitutes protected expression. For example, the Court of Appeals of Maryland found that the conduct prohibited by its statute, "burn[ing] or caus[ing] to be burned any cross or other religious symbol upon any private or public property," Md.Code Ann., Crim. Law Art. 27, § 10A, qualifies as speech for purposes of the First Amendment. Sheldon, supra, 629 A.2d at 757. The Maryland court reasoned that "[b]ecause of the[ ] well known and painfully apparent connotations of burning religious symbols, there can be no doubt that those who engage in such conduct intend to 'convey a particularized message,' or that those who witness the conduct will receive the message." Ibid.

Similarly, in State v. Talley, 122 Wash.2d 192, 858 P.2d 217, 230 (1993), the Supreme Court of Washington concluded that part of its hate-crime statute regulates speech for purposes of the First Amendment. That part of the Washington statute reads: "The following constitute per se violations of th[e malicious harassment statute]: (a) Cross burning; or (b) Defacement of the property of the victim or a third person with symbols or words when the symbols or words historically or traditionally connote hatred or threats toward the victim." Wash. Rev.Code § 9A.36.080(2). The Washington court declared that the statute "clearly regulates protected symbolic speech * * *." Talley, supra, 858 P.2d at 230. See also State v. Ramsey, 430 S.E.2d 511, 514 (S.C.1993) (finding that statute prohibiting placement of burning or flaming cross on public property or on private property without owner's permission regulates protected symbolic conduct).

Not all statutes dealing with hate crimes, however, necessarily regulate speech...

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6 cases
  • Karins v. City of Atlantic City
    • United States
    • United States State Supreme Court (New Jersey)
    • February 18, 1998
    ..."that in the context of history carry a clear message of ... hatred, persecution, and degradation of certain groups." State v. Vawter, 136 N.J. 56, 66, 642 A.2d 349 (1994) (quoting from Mari J. Matsuda, Public Response to Racist Speech: Considering The Victim's Story, 87 Mich.L.Rev. 2320, 2......
  • Woods-Pirozzi v. Nabisco Foods, WOODS-PIROZZ
    • United States
    • New Jersey Superior Court – Appellate Division
    • May 16, 1996
    ......         In Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04, 626 A.2d 445 (1993), our Supreme Court established that, to state a cause of action for "hostile work environment" sexual harassment, a female plaintiff must allege conduct which (1) would not have occurred but for ... It bases its argument on R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) and State v. Vawter, 136 N.J. 56, 642 A.2d 349 (1994), which followed R.A.V. We are satisfied that the First Amendment argument need not be addressed because it is ......
  • O'MARA v. Com., Record No. 0992-99-1
    • United States
    • Court of Appeals of Virginia
    • October 3, 2000
    ...proscribed cross burning to protect property owners from unwanted fires and safeguard community from fires generally); State v. Vawter, 136 N.J. 56, 642 A.2d 349 (1994) (statute proscribed messages based upon race, color, creed or religion); State v. Talley, 122 Wash.2d 192, 858 P.2d 217 (1......
  • Baliko v. Stecker, AFL-CIO and S
    • United States
    • New Jersey Superior Court – Appellate Division
    • July 20, 1994
    ...... requisite degree of hostility will have been created by "numerous incidents that, if considered individually, would be insufficiently severe to state a claim." Id. at 607, 626 A.2d 445. Thirdly, although the amount of compensatory damages that can be recovered will depend on the proof of injury, ...        Our Supreme Court considered a similar problem in State v. Vawter, 136 N.J. 56, 642 A.2d 349 (1994). Following the United States Supreme Court's decision in R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, ......
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1 books & journal articles
  • The New Jersey Supreme Court in the 1990s: independence is only skin deep.
    • United States
    • Albany Law Review Vol. 62 No. 4, June 1999
    • June 22, 1999
    ...in nearly every jurisdiction"). (245) See N.J. STAT. ANN. [sections] 2C:33-10 to 11 (West 1995 & Supp. 1998). (246) State v. Vawter, 642 A.2d 349, 356 (N.J. 1994) (quoting Governor Byrne's comments on an early draft of the bill). The hate crime legislation was signed into law on Septemb......

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