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Hynes v. Mayor and Council of Borough of Oradell

Decided: January 24, 1975.

EDWARD H. HYNES, HUGH STIER, ANTHONY BARONE, MARITZA KOUGASIAN AND SUSAN DE PRIMA, PLAINTIFFS-RESPONDENTS,
v.
THE MAYOR AND COUNCIL OF THE BOROUGH OF ORADELL, AND THE BOROUGH OF ORADELL, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-APPELLANTS



For reversal and remandment -- Chief Justice Hughes and Justices Jacobs, Mountain, Sullivan and Clifford. For affirmance -- Justices Hall and Pashman. The opinion of the Court was delivered by Clifford, J. Hall, J. (dissenting). Pashman, J. (dissenting).

Clifford

Plaintiff Hynes has been a member of the General Assembly of the State of New Jersey since 1972. His election district includes the Borough of Oradell. The remaining plaintiffs are registered voters in Oradell. In 1973 the Borough adopted an amendment to its general canvassing and soliciting ordinance. By the terms of that amendment, entitled Ordinance 598, candidates for public office, among others, are required to give the local police department written notification before calling from house to house during an election campaign.

By this action plaintiffs seek a declaration of the unconstitutionality of the enactment and an injunction against its enforcement. Hynes argues that it inhibits his rights of free speech and of communication with his constituents in contravention of the First and Fourtenth Amendments to the United States Constitution. The remaining plaintiffs urge First, Fourteenth and Fifteenth Amendment grounds of invalidity, founded on an asserted frustration of their interests in casting informed and educated votes and in communicating with public officials. They contend candidates will, because of the "chilling effect" of the ordinance, avoid confronting its requirements and hence elect not to campaign in Oradell.

The trial court found this enactment "unconstitutional, void and unenforceable" as an infringement on plaintiffs' First Amendment rights. In addition, it deemed the ordinance defective because no penalty provision was included. This latter finding is the single ground upon which the Appellate Division, in an unreported opinion, rested its affirmance. A substantial constitutional issue being projected, the Borough appeals to this Court as of right. R. 2:2-1(a)(1).

While the appeal was pending here, the absence of a penalty clause, correctly perceived as a fatal deficiency by the courts below, was remedied by adoption of another amendatory ordinance, 598-A, providing for a penalty on violation and including also recitals as to the purpose and intent of the enactment. At oral argument all counsel agreed the record should be molded to bring before us the latest ordinance for a determination of its validity. This is in keeping with the general rule permitting scrutiny of the law in question as it exists at the time of appellate review, S. & L. Associates, Inc. v. Washington Twp., 35 N.J. 224, 227 (1961). Consequently, we direct our attention to Ordinance 598-A, enacted July 16, 1974.

The provisions of which plaintiffs complain read in substantial part as follows:

Any person desiring to canvass, solicit or call from house to house in the Borough for a recognized charitable cause, or any person desiring to canvass, solicit or call from house to house for a Federal, State, County or Municipal political campaign or cause, shall be required to notify the Police Department, in writing, for identification only. Said notification shall be good for the duration of the campaign or cause.

The thrust of plaintiffs' attack is that the ordinance is facially invalid as constituting a prior restraint on the freedoms of speech and assembly; and that, as expressed in their brief, "[w]here fundamental freedoms are concerned, any governmental impediment, no matter how slight, cannot be constitutionally countenanced. The interests of the state must of necessity give way to protection of First Amendment values." These expansive propositions must be rejected on the facts of this case, substantially for the reasons set forth in our opinion in Collingswood v. Ringgold, 66 N.J. 350 (1974), decided this day.

Initially we observe that while the ordinance before us in Collingswood was "not a model of clarity," 66 N.J. 350 at 364, the Oradell ordinance makes unmistakable the activity intended to be regulated and the persons brought within its

ambit. It addresses door-to-door ventures of charitable solicitors, political campaigners and advocates in behalf of political causes. In this respect it could hardly be more clear.

Secondly, the only requirement of the enactment is one of simple identification. It may be satisfied in writing, suggesting that resort may be had to the mails. It need be fulfilled only once for each campaign. There is no fee. The applicant does not have to obtain or carry a card or license. And perhaps most importantly, no discretion reposes in any municipal official to deny the privilege of calling door to door. The ordinance is plainly an identification device in its most basic form.

In Collingswood we have today approved the use of such neutral identification requirements as being a "legitimate tool in the hands of municipalities," 66 N.J. at 369. In that case we were faced with conduct which admittedly had a commercial element, defendants there being market research surveyors. In the instant case plaintiff Hynes' activity is "purer" in the sense that it is not diluted in any degree by commercial overtones; but it is nevertheless "conduct which amounts to more than the right of free discussion comprehends," Thomas v. Collins, 323 U.S. 516, 540, 65 S. Ct. 315, 327, 89 L. Ed. 430, 446 (1945), for the reason that it takes place not in public areas, traditionally the scene of uninhibited discussion, but rather is house-to-house in nature. That being so, different societal concerns are implicated, justifying an identification regulation. Since we deem such registration requirements to be neutral regulations akin to those of time, place and manner, see Collingswood, supra, 66 N.J. 350 at 365-366, the sole consideration is that they be "reasonable." See Thomas v. Collins, supra, 323 U.S. at 540, 65 S. Ct. at 327, 89 L. Ed. at 446; Poulos v. New Hampshire, 345 U.S. 395, 405, 73 S. Ct. 760, 766, 97 L. Ed. 1105, 1114 (1953).

Collingswood's identification requirements were found to be a reasonable means of protecting the municipality's residents

"against a sense of unease and dangers reasonably to be apprehended on account of strangers filtering through the community," 66 N.J. 350 at 357. Precisely the same concerns of the municipality are presented in this case, as demonstrated in the ordinance's prefatory recitals:

WHEREAS, the Borough of Oradell is primarily a one family residential town whose citizens are employed elsewhere, resulting in the wives of the wage earner being left alone during the day; and

WHEREAS, because of the geographical location of most of the homes it is impossible to police all areas at the same time, resulting in a number of break and entries and larceny in the home; and

WHEREAS, it is in the public interest and the public safety that persons not be permitted to call from house to house on the pretext of soliciting votes for a designated candidate or signatures for a nominating petition, or to solicit for a recognized charitable cause or borough activity, without such persons being first identified by the Police Department; and

WHEREAS, the Mayor and Borough Council of The Borough of Oradell feel that it is in the public interest and for the protection of The Borough of Oradell that such persons be required to notify the Police ...


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