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Camarco v. City of Orange

Decided: July 10, 1970.

PHILIP CAMARCO, JR., A CITIZEN AND RESIDENT OF NEW JERSEY, AND RUTH SEGLIN, A CITIZEN AND RESIDENT OF THE CITY OF ORANGE, PLAINTIFFS,
v.
CITY OF ORANGE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, GENNARO D'ANGELIS, IN HIS CAPACITY AS DIRECTOR OF THE POLICE DEPARTMENT OF THE CITY OF ORANGE, JOSEPH MAGRINO, IN HIS CAPACITY AS CORPORATION COUNSEL OF THE CITY OF ORANGE, AND THOMAS J. FREDA, IN HIS CAPACITY AS CLERK OF THE MUNICIPAL COURT OF THE CITY OF ORANGE, DEFENDANTS



Yancey, J.c.c. (temporarily assigned).

Yancey

On July 9, 1969 Philip Camarco was arrested by members of the Orange Police Department for "loitering" in a local parking lot in violation of an ordinance of the City of Orange which provided:

No person or persons shall loiter or assemble in or about any street or public place or at the corner of any streets, or in or about the front of any building; or shall loiter in or upon any street or public place in any parked automobile or other vehicle; or utter any loud, indecent, abusive or offensive language, or address or make any offensive remarks or comments to or upon any person or persons in any street or public place, or obstruct or interfere with any person or persons lawfully being in or upon any street, public place or building under a penalty of not more than Fifty Dollars or ten days in jail for the first offense, and not more than Two Hundred Dollars or ninety days in jail for each and every subsequent offense.

On motion of Camarco's counsel, prior to a municipal court hearing of this complaint, an order was entered in the Superior Court declaring that the loitering section of the ordinance was invalid and ineffective because it failed to set forth norms and standards. The complaint against the plaintiff Camarco was thereby dismissed.

Thereafter, plaintiffs filed a complaint for a declaratory judgment which sought to have the entire ordinance declared

unconstitutional. While that action was pending, Orange amended its loitering statute. Plaintiffs subsequently amended their complaint for declaratory judgment, alleging that the new ordinance is unconstitutional. The case is before this court on a motion for summary judgment made by plaintiffs. Defendant city has entered a cross-claim for summary judgment, alleging that plaintiffs have no standing to claim relief under the Declaratory Judgment Law and, in the alternative, that the new ordinance is constitutional.

Defendant argues that since there are no charges pending against plaintiffs, either under the old or new ordinance, he lacks standing to attack its constitutionality. Since the issue of standing could be dispositive of the entire case, the court will deal with it first. It is essential for relief under the Declaratory Judgment Law that there be a finding of both justiciability and standing. N.J. Builders Ass'n. v. Division on Civil Rights , 81 N.J. Super. 243 (Ch. Div. 1963); N.J.S.A. 2A:16-50, 51, 53.

Our courts have held that in declaratory judgment actions no wrong need be proved, but the mere existence of a claim, or threat of a possible claim, disturbing the peace of plaintiff's freedom by casting doubt or uncertainty upon his rights or status, establishes the requisite condition or justiciability for a declaratory judgment action. N.J. Home Builders Ass'n v. Division on Civil Rights, supra; Trustees of Rutgers College v. Richman , 41 N.J. Super. 259 (Ch. Div. 1956). Plaintiff Camarco was arrested under the predecessor of the present amended ordinance. He asserts that he does not know why his actions of peacefully assembling in a parking lot caused him to be arrested. As noted, his arrest was later declared invalid because the loitering ordinance was held to be invalid and ineffective. Camarco now stands in a precarious position because he does not know if these same actions are lawful or whether they will subject him to arrest under the amended ordinance. "A plaintiff is entitled to relief from the uncertainty and insecurity as to the legal limitations and obligations which confront him each day on

the streets of the City." Weinstein v. City of Newark , 100 N.J. Super. 199, 206 (Law Div. 1968).

Plaintiff clearly has standing to attack the constitutionality of the ordinance. He is more qualified to question the ordinance than most other citizens of Orange in that he was arrested under the former ordinance which dealt with the same action of loitering. Refusal to grant plaintiff standing might in effect deny his constitutional rights of expression and assembly, because he would be unwilling to gather with his friends in conversation for fear of criminal prosecution by the Orange police. "The threat of sanctions may deter * * * almost as potently as the actual applications of sanctions." NAACP v. Button , 371 U.S. 415, 433, 83 S. Ct. 328, 338, 9 L. Ed. 2d 405 (1963).

Defendants argue that there are no criminal charges pending against Camarco by the City of Orange, and therefore he lacks standing to question the ordinance. If this argument were accepted, it would mean that a person in plaintiff's position would have to wait until he was arrested before he could question the legality of a statute. The Supreme Court of the United States, in dealing with the federal Declaratory Judgment Act, which is very similar to the one in New Jersey, stated, "Because of the sensitive nature of constitutionality protected expression we have not required that all of those subject to overbroad regulations risk prosecution to test their rights." Dombrowski v. Pfister , 380 U.S. 479, 486, 85 S. Ct. 1116, 1121, 14 L. Ed. 2d 22 (1965). Our own Supreme Court has held that a person wishing to test the constitutionality of a statute should bring a proceeding under the Uniform Declaratory Judgment Act rather than have himself arrested in ...


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