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Hurwitz v. Boyle

Decided: November 29, 1971.

ERNEST HURWITZ, RUTH HURWITZ, MALCOLM PARKER, TERRY PARKER AND CARL NORMAN LUCK, PLAINTIFFS-APPELLANTS,
v.
J. WILLIAM BOYLE, ALFRED E. SANDERS, HARRY N. FRANK, JR., TOBIAS H. MAYER, AUGUST J. DAESENER, JR., WALTER J. KOZLOSKI, ROGER J. KANE, HENRY T. LEFKOWICH AND THE BOROUGH OF FREEHOLD, DEFENDANTS-RESPONDENTS



Kilkenny, Labrecque and Lane. The opinion of the court was delivered by Lane, J.A.D.

Lane

Plaintiffs appeal from a denial of their motion for summary judgment to declare invalid ordinance No. 562 of the Borough of Freehold known as "Parade Ordinance for the Borough of Freehold." The trial court held certain specific sections invalid and declared the balance of the ordinance valid. Thereafter the borough passed an amendatory ordinance in accordance with the trial court's ruling. We consider the ordinance as amended.

Plaintiffs argue that the ordinance violates due process and is void (1) for substantive vagueness in that it sweeps too broadly and brings within its terms totally innocent and constitutionally protected activity; (2) for procedural vagueness in that it fails to give fair and adequate notice to the citizenry of the activity which it intends to prohibit and the requirements necessary to avoid criminal liability, and (3) in that it constitutes a prior restraint on freedom of speech, assembly and the right to petition the government and fails to provide specific procedural safeguards prior to implementation of final action of the governing body. Plaintiffs further argue that the ordinance violates the provisions of the United States Constitution and the New Jersey Constitution providing for freedom of speech, freedom of assembly and the right to petition the government.

In section II the ordinance defines "parade" as "any parade, march, ceremony, show, exhibition, pageant, procession of any kind, or any similar display in or upon any street, park, or other public place in the Borough of Freehold."

Section III prohibits any parade unless a permit has been obtained from the municipality. Among the exceptions are funeral and wedding processions, a governmental agency acting within the scope of its function, and students participating in educational activities under the authorization of the proper school authorities of the borough. This section also establishes a two-dollar fee for the issuance of a permit.

Section IV sets forth the contents of the application for a permit and provides for its filing at least 20 days before the scheduled date of the parade.

Section V provides that a permit shall issue upon a finding that:

(a) The conduct of the parade will not substantially interrupt the safe and orderly movement of other traffic contiguous to its routes;

(b) The conduct of the parade will not require the diversion of so great a number of police officers of the Borough of Freehold to properly police the line of movement and the area contiguous thereto as to prevent normal police protection of the Borough of Freehold;

(c) The conduct of such parade will not require the diversion of so great a number of ambulances as to prevent normal ambulance service to portions of the Borough of Freehold other than that to be occupied by the proposed line of march in areas contiguous thereto;

(d) The concentration of persons, animals and vehicles at assembly points of the parade will not unduly interfere with the proper fire and police protection of or ambulance service to areas contiguous to such assembly areas;

(e) The conduct of such parade will not interfere with the movement of fire fighting ...


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