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State v. Ulesky

Decided: May 5, 1969.


For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- Justice Haneman.

Per Curiam

[54 NJ Page 27] Defendant was convicted of violating an ordinance of the Borough of Belmar requiring registration

by persons convicted of crime. The County Court affirmed the judgment, 100 N.J. Super. 287 (1968), and we certified the appeal to the Appellate Division before hearing there.

The ordinance provides that any person present in the Borough for more than 24 hours must register with the Chief of Police if within the past ten years such person has been convicted here or elsewhere of a crime or a narcotics violation. Such person must furnish a written statement under oath, may be photographed or fingerprinted, must carry a card furnished him, and for a violation is subject to a fine not exceeding $200 or imprisonment not exceeding 90 days or both.

Defendant admittedly comes within the ordinance and admittedly did not comply with it. Defendant concedes also that he knew of the ordinance and its terms, and hence does not rely upon Lambert v. People of State of California, 355 U.S. 225, 78 S. Ct. 240, 2 L. Ed. 2 d 228 (1957), rehearing denied, 355 U.S. 937, 78 S. Ct. 410, 2 L. Ed. 2 d 419 (1958), which held such an ordinance could not be enforced against one who had no notice of it. He asserts sundry constitutional objections and also that in any event State Legislation has preempted the field and foreclosed municipal action. We think the preemption claim must be upheld and therefore we need not deal with the constitutional challenges.

We assume for present purposes that, to the extent to which the subject is within the reach of the police power of the State, the Legislature could delegate the legislative power to local government. The objective of the ordinance is to alert the local police department to the presence of persons convicted of crime. The premise is that recidivism is a reality, and hence law enforcement will be aided by an awareness of individuals whose prior offenses reveal an added risk. The problem no doubt varies locally in intensity. Thus resort areas are especially attractive to a floating criminal element. Indeed it appears that in our State the municipalities which have legislated on the subject are either along the shore or have or are near race tracks. Elsewhere, too,

local government has legislated upon this subject. See generally, Note, 103 U. Pa. L. Rev. 60 (1954); Annotation, 82 A.L.R. 2 d 398 (1962). Hence, as we have said, we assume the Legislature could have delegated to local government the power to deal with the problem, subject of course to constitutional limitations which would apply to legislative action by the State itself. And we assume, too, that the general grant of police power in R.S. 40:48-2 would be sufficient to achieve that delegation. See Summer v. Township of Teaneck, 53 N.J. 548 (1969).

But of course it is elementary that a municipality may not exert the delegated police power in terms which conflict with a State statute, and hence a municipality may not deal with a subject if the Legislature intends its own action, whether it exhausts the field or touches only part of it, to be exclusive and therefore to bar municipal legislation. As a general proposition an intent to preempt the power of municipalities will not be lightly inferred, Kennedy v. City of Newark, 29 N.J. 178, 187 (1959), but in the final analysis the answer must depend upon the particular setting, the values involved, and the impact of local legislation upon those values.

Here we are dealing with an ordinance which imposes a burden upon persons convicted of crime. (We do not mean that the requirement for registration is intended to be punitive; on the contrary, we assume the aim is solely to protect against the prospect of future criminal activity.) The ordinance touches all who have transgressed and does so in far-reaching terms. It should be stressed that we are not dealing with the registration or licensure of individuals who propose to engage in activities as to which a municipality may properly seek proof of the necessary good character. Mogolefsky v. Schoem, 50 N.J. 588 (1967); Belleville Chamber of Commerce v. Town of Belleville, 51 N.J. 153 (1968). Rather the basis of the demand for registration is mere presence, wholly unrelated to any conduct.

If every municipality required registration for no reason other than being within its borders, the cumulative burden would be intense. It could crush a man if he had to reveal a past error wherever he abides or whenever he sojourns in another place. In light of this substantial burden, we should be sensitive to any action of the Legislature which evidences consideration of the problem and a wish that the police power be pressed no further than the Legislature itself has exerted it.

In this regard, we are referred to statutes calling for reporting of arrests and convictions to a State agency and the maintenance of records at that level. See N.J.S.A. 52:17 B -5.1 to 5.5; N.J.S.A. 53:1-12 to 20.4. We do not think such statutes are very persuasive since the ordinance is designed to the distinct end of alerting the local police chief to the advent of a convicted person and ...

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