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March 12, 1970

Samuel M. KARP, Robert C. Tomashevsky, Harold Hariston and Harold Muskat, for themselves and for all others similarly situated, Plaintiffs,
Major General Kenneth COLLINS, individually and as Commanding General of Headquarters, U.S. Army Training, Infantry and Fort Dix, New Jersey, et al., Defendants

The opinion of the court was delivered by: FREEDMAN

Two of the plaintiffs, Karp and Tomashevsky, operate a coffee house near Fort Dix, New Jersey, and the other two are soldiers stationed at Fort Dix. They brought this action seeking damages and an injunction against alleged acts of harassment in violation of their constitutional rights, and in addition a declaration of unconstitutionality and an injunction against the enforcement of two statutes of New Jersey, N.J.S. 2A:170-1 and 170-29(1), N.J.S.A., which are a part of the State's Disorderly Persons law. They designated the suit as a class action for themselves and others similarly situated and named as defendants the Commanding General at Fort Dix, certain military personnel there, the Superintendent of the New Jersey State Police and a number of state troopers, and the Attorney General of the State of New Jersey, as individuals and as members of a class.

At the suggestion of the court and with the agreement of the parties, the action was severed so that the plaintiffs' claim that the two statutes are unconstitutional on their face would be heard and decided by this three-judge court, constituted pursuant to 28 U.S.C. ยงยง 2281, 2284, while the claims for injunction and damages based on alleged harassment by the defendants would be heard by the district court judge to whom the case was first presented. *fn1" The

parties also agreed at the suggestion of the court that prosecutions instituted under the statutes would be stayed pending the outcome of this proceeding.

 Accordingly, the three-judge court heard oral argument on the application for preliminary injunction on the claim that the two statutes are unconstitutional on their face. At the suggestion of the parties, they were given leave to file supplemental briefs, but no such brief has been received from the defendants, although the filing date was extended and has long since gone by. We therefore proceed with the disposition of the case, regretting as we must the failure of the State to present more fully its views on the important constitutional questions presented.

 The statutes are very different in their provisions, and their constitutionality therefore will be considered separately.


 N.J.S. 2A:170-1, N.J.S.A. provides:

"Any person who is apprehended and cannot give a good account of himself, or who is engaged in an illegal occupation and who is in this state for an unlawful purpose, is a disorderly person. In any prosecution under this section the fact that the person apprehended cannot give a good account of himself or is engaged in an illegal occupation is prima facie evidence that he is present in this state for an unlawful purpose."

 The statute is drawn from the State's old vagrancy law of 1898. *fn2" Its scope and meaning today have very recently been examined and defined by the Supreme Court of New Jersey in State v. Zito, 54 N.J. 206, 254 A. 2d 769 (1969). Chief Justice Weintraub, speaking for a unanimous court, declared that a failure to give a good account of oneself may not itself be punished or be made an essential element of the crime, nor may it serve as affirmative proof of presence for an unlawful purpose. *fn3" Instead, these provisions were read as intended merely to assure a suspect a chance to explain away the circumstances which might appear inculpatory, and therefore to require the police to offer him an opportunity for an explanation. The proof of such an offer by the police was declared a prerequisite to a prosecution under the statute, unless the circumstances prevented the offer or made it plainly unnecessary. The court was careful to state that the policeman's evaluation of the sufficiency of the suspect's explanation would have no weight at the trial, for the court and not the policeman must ultimately decide whether the defendant was present at the place for an unlawful purpose. The court then went on to say that this construction requiring the police to offer a suspect an opportunity to explain his innocence was to continue in force only so long as it did not become a complication under the "evolving view of the self-incrimination provision of the Fifth Amendment." *fn4"

 With the elimination of these provisions as substantive elements of the offense, the court concluded that the statute now "requires presence at a place for an unlawful purpose. * * * The Legislature denounced (1) the act of going to a place and remaining there, (2) with intent to commit an unlawful act." The court defined "unlawful purpose" as the intent to commit a "crime or petty offense." *fn5" The court acknowledged that it was performing what it called "judicial surgery" in order to render the statute constitutional: "[The] statute is an important instrument for protection of the individual, and since the Legislature would likely want the statute to remain to the extent that it may, we see no impediment to such judicial surgery as will bring the statute within the Constitution." *fn6"

 Strictly speaking, the "judicial surgery" performed in Zito is dictum. For the court found that the search which was incident to the defendant's arrest under the Disorderly Persons law was legally justified on a number of grounds and that it would be valid even if the statute were unconstitutional. *fn7" Nevertheless, the opinion of Chief Justice Weintraub clearly is a studied declaration of the construction which is to be given to the statute and was laid down for the guidance of the courts of New Jersey. We therefore accept it as authoritative.

 The Supreme Court of New Jersey had earlier held that there must be allegation and proof of the specific substantive offense intended, and therefore general charges of having an unlawful purpose are insufficient under the statute. State v. Salerno, 27 N.J. 289, 142 A. 2d 636 (1958). *fn10" Even as so defined the element of "unlawful purpose", viewed alone, would proscribe mere thought. Zito expressly disavows such a construction of the statute, however, and requires the additional element of presence at or going to a place for such purpose. *fn11" But if the statute is construed to denounce "presence at a place" for an unlawful purpose, difficult problems of constitutionality immediately arise. For what does "presence at a place" add to mere thought or criminal intent? Suppose one has innocently arrived at a place and forms there the intent to commit a crime or petty offense. If this violates the statute, then criminality will be declared and punishment inflicted for the existence of thought alone, since presence somewhere is a universal fact. A person who enters a jewelry store to shop would violate the statute if, struck by the beauty of a sparkling gem, he formed the intent to steal it, even though he stifled the criminal idea before it found expression in any conduct or overt act. Everyone would become a criminal, for all of us are subject to such wayward thoughts which find their way into the mind while the body inevitably occupies some ...

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