Dear Mayor and Council,

I am writing to draw your attention to Middletown Township Municipal Ordinance Chapter 110 - Disorderly Conduct. The provisions of this municipal ordinance chapter are entirely invalid, unlawful and unenforceable, therefore the township committee should take swift action to repeal the entire chapter from the township code. Additionally, the Middletown Township Police Department should immediately cease enforcement of said ordinance chapter and any pending cases of alleged violations should be dismissed.

I also understand that Municipal Prosecutor, Gerald Massell has made it a habit to plea down various State Statute Title 2C Disorderly Persons offenses to Municipal Ordinance Violations in the Middletown Township Municipal Court. This is prohibited under a November 18, 1998 directive issued by then-Attorney General Peter Verniero entitled "Plea Agreements in Municipal Courts" (see attached PDF) and should Mr. Massell fail to cease and desist this misconduct, I will not hesitate to file an ethics complaint against him. The days of improperly pleading down Title 2C offenses like Shoplifting to Municipal Ordinance violations in the Middletown Township Municipal Court are over.

But back to Middletown Township Municipal Ordinance Chapter 110 - Disorderly Conduct.

§ 110-1. Intoxication is invalid because it is superseded by or contrary to the New Jersey Alcoholism Treatment and Rehabilitation Act (ATRA). See N.J. STAT. ANN. §§ 26:2B-6 to -9.3, -11 to -39 (West 2007). ATRA provides:

Notwithstanding any other provision of law, no county, municipality, or other jurisdiction within the State shall adopt an ordinance,

resolution, or other legislation creating an offense of public intoxication or any equivalent offense, and any existing ordinance, resolution,

or other legislation creating such an offense is hereby repealed.

§ 110-2. Disturbances and breaches of peace. is invalid because it is preempted by N.J.S.A. 2C:33-2 Disorderly Conduct. It thwarts the legislative intent and because the state scheme is so comprehensive that it precludes municipal regulation. 

N.J.S.A. 2C:1-5d provides

d. Notwithstanding any other provision of law, the local governmental units of this State may neither enact nor enforce any ordinance or other local law or regulation conflicting with, or preempted by, any provision of this code or with any policy of this State expressed by this code, whether that policy be expressed by inclusion of a provision in the code or by exclusion of that subject from the code.

The courts have addressed the application of this statute to municipal ordinances on several occasions.   See State v. Crawley, supra (municipal loitering ordinance);  State v. Felder, 329 N.J.Super. 471, 748 A.2d 163 (App.Div.2000) (municipal loitering for purpose of obtaining narcotics ordinance);  State v. Meyer, 212 N.J.Super. 1, 512 A.2d 1139 (App.Div.1986) (local obscenity ordinance);  Dolecky v. Borough of Riverton, 223 N.J.Super. 354, 538 A.2d 856 (Law Div.1987) (ordinance prohibiting posting of “No Trespassing” signs).   The two most pertinent cases are State v. Crawley, supra, and State v. Felder, supra.

§ 110-3. Begging is invalid because it violates the right to free speech found in the New Jersey and United States constitutions and right to equal protection found under the 14th amendment of the United States constitution, by allowing some speech but banning other speech based on message. The federal courts have repeatedly found state laws banning begging to be unconstitutional on first amendment grounds. See Loper v. N.Y. City Police Dep’t, 999 F.2d 699 (2d Cir. 1993).

§ 110-4. Smoking or use of matches in certain areas. is invalid because in it the Middletown Township Council attempts to exercise jurisdiction over U.S. Military property. The Territorial or Property Clause of Article Four of the U.S. Constitution gives the U.S. Congress (not the Middletown Township Council) the exclusive power to regulate federal property.

§ 110-5. Loud, offensive or abusive language. is invalid because it is preempted by a state statute and is unconstitutional. State statute N.J.S.A. 2C:33-2b Disorderly Conduct - Offensive Language preempts the ordinance. The ordinance is preempted because it thwarts the legislative intent and because the state scheme is so comprehensive that it precludes municipal regulation. 

N.J.S.A. 2C:1-5d provides

d. Notwithstanding any other provision of law, the local governmental units of this State may neither enact nor enforce any ordinance or other local law or regulation conflicting with, or preempted by, any provision of this code or with any policy of this State expressed by this code, whether that policy be expressed by inclusion of a provision in the code or by exclusion of that subject from the code.

The courts have addressed the application of this statute to municipal ordinances on several occasions.   See State v. Crawley, supra (municipal loitering ordinance);  State v. Felder, 329 N.J.Super. 471, 748 A.2d 163 (App.Div.2000) (municipal loitering for purpose of obtaining narcotics ordinance);  State v. Meyer, 212 N.J.Super. 1, 512 A.2d 1139 (App.Div.1986) (local obscenity ordinance);  Dolecky v. Borough of Riverton, 223 N.J.Super. 354, 538 A.2d 856 (Law Div.1987) (ordinance prohibiting posting of “No Trespassing” signs).   The two most pertinent cases are State v. Crawley, supra, and State v. Felder, supra.

In State in the Interest of H.D.., 206 N.J. Super. 58, 61 (App. Div. 1985), the Appellate Division examined N.J.S.A. 2C:33-2b, and concluded “that there is no valid statutory authority for prosecutions based upon the public use of coarse or abusive language which does not go beyond offending the sensibilities of a listener.” See State v. Duncan, 376 N.J. Super. 253, 261 n.3 (App. Div. 2005) (noting that N.J.S.A. 2C:33-2b, which was enacted to punish profane speech, has been declared unconstitutional for overbreadth); Byrd v. Manning, 253 N.J. Super. 307, 312 (App. Div.) (same), certif. denied, 130 N.J. 18 (1992). N.J.S.A. 2C:33-2b has not been amended since the Appellate Division decision in H.D.

§ 110-6. Interference with police. is invalid because it is preempted by N.J.S.A. 2C:29‑1. Obstructing administration of law or other governmental function and N.J.S.A. 2C:29-2 Resisting Arrest. Additionally, provisions of the ordinance requiring citizens to assist the police in quelling a breach of the peace seem to run contrary to United States v. Russell, 80 U.S. 13 Wall. 623 623 (1871). It thwarts the legislative intent and because the state scheme is so comprehensive that it precludes municipal regulation. 

N.J.S.A. 2C:1-5d provides

d. Notwithstanding any other provision of law, the local governmental units of this State may neither enact nor enforce any ordinance or other local law or regulation conflicting with, or preempted by, any provision of this code or with any policy of this State expressed by this code, whether that policy be expressed by inclusion of a provision in the code or by exclusion of that subject from the code.

The courts have addressed the application of this statute to municipal ordinances on several occasions.   See State v. Crawley, supra (municipal loitering ordinance);  State v. Felder, 329 N.J.Super. 471, 748 A.2d 163 (App.Div.2000) (municipal loitering for purpose of obtaining narcotics ordinance);  State v. Meyer, 212 N.J.Super. 1, 512 A.2d 1139 (App.Div.1986) (local obscenity ordinance);  Dolecky v. Borough of Riverton, 223 N.J.Super. 354, 538 A.2d 856 (Law Div.1987) (ordinance prohibiting posting of “No Trespassing” signs).   The two most pertinent cases are State v. Crawley, supra, and State v. Felder, supra.

Would you please ask the municipal attorney to review and report on the validity of Middletown Township Municipal Ordinance Chapter 110 - Disorderly Conduct  as well as any other code provisions that seek to regulate adult “street conduct” and let me know the results of that review?

I have attached a PDF file of memos from the New Jersey Judiciary and Attorney General's office dealing with these issues that would likely be of interest for your review.

Based on my review of the case law and attached memos, the Municipal Ordinance provisions under Middletown Township Municipal Ordinance Chapter 110 - Disorderly Conduct are entirely invalid as they are either preempted by state law and/or unconstitutional therefore they should be repealed immediately.

 

Sincerely,

Eric Hafner

 

cc: Monmouth County Prosecutor's Office, Gerald Massell, Esq. - Municipal Prosecutor, Brian Nelson, Esq. - Township Counsel, Stanley Werse - Municipal Public Defender, Robert Oches - Police Chief, Assemblyman O'Scanlon, Assemblywoman Handlin, Senator Kyrillos, American Civil Liberties Union of New Jersey


For your reference, below is a full copy of Middletown Township Municipal Ordinance Chapter 110 - Disorderly Conduct:

Chapter 110   DISORDERLY CONDUCT

§ 110-1. Intoxication.

§ 110-2. Disturbances and breaches of peace.

§ 110-3. Begging.

§ 110-4. Smoking or use of matches in certain areas.

§ 110-5. Loud, offensive or abusive language.

§ 110-6. Interference with police.

§ 110-7.   Violations and penalties.

[HISTORY: Adopted by the Township Committee of the Township of Middletown 9-9-1975 by Ord. No. 1054 as Ch. 17, Arts. 1 and 2, of the 1975 Revised General Ordinances Amendments noted where applicable.]

GENERAL REFERENCES

Alcoholic beverages - See Ch. 65.

Noise - See Ch. 182.

§ 110-1.  Intoxication.

   No person shall be under the influence of intoxicating liquor in any street, highway, thoroughfare, sidewalk or other public or quasi-public place or upon private property, not his own, within the township.

§ 110-2.  Disturbances and breaches of peace.

   No person shall make, aid, countenance or assist in making any improper noise, riot, disturbance or breach of the peace in or upon any street, highway, thoroughfare, sidewalk, building or other public or quasi-public place or upon private property, not his own, or disquiet or disturb any congregation or assembly of any kind whatsoever in any church or other building by any rude, disorderly or indecent behavior of any kind.

§ 110-3.  Begging.

   No person shall go about from door to door or place himself in or upon any street, highway, thoroughfare, sidewalk, building or other public or quasi-public place or upon private property, not his own, to beg or gather alms.

§ 110-4.  Smoking or use of matches in certain areas.

   No person shall smoke, handle or use tobacco in any form lighted by fire, or ignite matches, or carry any matches on any of the following used for military purposes: any pier, bulkhead, wharf, dock, shed, office or approach to the aforesaid premises, or on any craft or vessel berthed or moored thereto, or on any dray or vehicle of any description passing through or over the aforesaid premises; provided, however, that this section shall not apply to such fireproof structures not aboard vessels or craft as may be designated for smoking purposes by any commanding officer of any of the Armed Forces of the United States in charge thereof.

§ 110-5.  Loud, offensive or abusive language.

   No person shall utter any loud, offensive or abusive language or address or make any offensive comments or remarks to or concerning any persons in any street, highway, thoroughfare, sidewalk, building or any other public or quasi-public place or upon private property, not his own.

§ 110-6.  Interference with police.

A.     No person shall hinder, obstruct, or interfere in any manner with any member of the police force of the township in the performance of his duties nor shall any person willfully refuse or neglect to assist any such police officer when lawfully called upon by him to do so in the execution of any process or in the suppression of any breach of the peace or disorderly conduct or in a case of escape or when such officer is resisted in the discharge of his duty, nor shall any person resist or oppose any police officer of the township or any person authorized by law in serving or attempting to serve any writ, bill, order or process or when making any arrest.

B.     No person shall without legitimate purpose or business cross any police line or area of investigation which has been established by any member of the police force of the township at the scene of a crime, disaster, conflagration, fire, motor vehicle accident or other incident.

§ 110-7.  Violations and penalties.1 [Amended 5-1-2006 by Ord. No. 2006-2876]

   Any person adjudicated as having violated any provision of this chapter shall be subject to the penalties in Chapter 1, Section 1-18 of this code.