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Doe v. City of Trenton

New Jersey Superior Court, Appellate Division

Decided: June 30, 1976.


Carton, Crahay and Handler. The opinion of the court was delivered by Carton, P.J.A.D.


[143 NJSuper Page 130] This is a challenge to the constitutionality of the City of Trenton's "parent responsibility ordinance."*fn1 The attack centers on the ordinance's presumption that a parent (as defined by the ordinance) is responsible for the misbehavior of a child who twice within one year is adjudged guilty of acts defined as violations of the public peace. The acts so defined include adjudications for delinquency and of the status of being a juvenile in need of supervision (JINS). See N.J.S.A. 2A:4-44 (defining delinquency)

[143 NJSuper Page 131]

and N.J.S.A. 2A:4-45 (defining JINS offenses). A parent convicted under the ordinance may be fined up to $500.

Plaintiff was cited in a sworn complaint for violation of the ordinance. The complaint recited that her son, age 13, "was convicted a second time within a one year period of a violation of the public peace by the Mercer County Juvenile [ sic ] Court." Ruling on cross-motions for summary judgment, the trial judge upheld the validity of the ordinance and its attendant presumption.

The term "presumption" is used in the law to express a variety of concepts. Basically, however, the effect of a presumption is this: proof of fact B (the proved fact) establishes a presumption of the truth of fact A (the presumed fact). The present case graphically illustrates the effect of a presumption. The fact of two public peace convictions on the minor's part within a year (the proved fact) establishes a rebuttable presumption that the violations stemmed from active or passive parental fault (the presumed fact).

The relatively widespread existence of presumptions in our law is attributable to a variety of factors involving considerations of policy, fairness and convenience. However, as one distinguished writer observed, most presumptions have arisen from the belief that

The establishment of presumptions favorable to the government in criminal and quasi -criminal cases raises delicate issues of due process under the Fifth and Fourteenth Amendments. See generally, Ashford & Risinger, "Presumptions, Assumptions, and Due Process in Criminal Cases: A Theoretical Overview," 79 Yale L.J. 165 (1969). While such presumptions are not constitutionally interdicted (e.g., Tot v. United States , 319 U.S. 463, 63 S. Ct. 1241, 87 L.

[143 NJSuper Page 132]

Ed. 1519 (1943)), they must possess certain qualities of trustworthiness. In general, inquiry as to whether a particular presumption is up to constitutional requirements focuses on the degree to which the presumed fact tends, in reality, to flow from the established fact. See McCormick, op. cit. , ยง 344 at 811-17. In Tot v. United States, supra , that standard was enunciated as follows:

[A] statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of the lack of connection between the two in common experience. [319 U.S. at 467, 468, 63 S. Ct. at 1245]

The court also spoke in terms of "the normal balance of probability." 319 U.S. at 469, 63 S. Ct. 1241.

In Leary v. United States , 395 U.S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969), the court reviewed its treatment of Tot's "rational connection," "common experience" and "normal balance of probability" approaches to presumptions and concluded that:

A criminal statutory presumption must be regarded as "irrational" or "arbitrary," and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend. [395 U.S. at 36, 89 S. Ct. at 1548; emphasis supplied]

The precise question before this court is whether we may state with "substantial assurance" that a minor's second public peace adjudication was "more likely than not" the result of passive or active wrongdoing on the part of the minor's parent or parents.

The roots of juvenile misconduct are complex and imperfectly understood. If there is consensus at all in the field, it is on the proposition that children growing up in urban poverty areas are those most likely to be identified as juvenile delinquents. See The Challenge of Crime in a Free Society, A Report by the President's Commission on Law Enforcement

[143 NJSuper Page 133]

and Administration of Justice 57 (1967). The City of Trenton provides us with nothing which would support a finding that parental influence is an overriding cause of juvenile misconduct. Certainly, there has been demonstrated no basis for a court to take judicial notice of such a proposition. Nor can it be said to be self-evident. Indeed, there is nothing to suggest that there is any calculus of probabilities which would compel such a conclusion.

By contrast, plaintiff and amicus Public Advocate provide a representative sampling of prevailing expert opinion, research and analysis tending to support the conclusion that parental actions are but a single factor in the interaction of forces producing juvenile misconduct. That analysis is aptly summed up in Comment, "Parental Responsibility Ordinances -- Is Criminalizing Parents When Children Commit Unlawful Acts a Solution to Juvenile Delinquency?," 19 Wayne L. Rev. 1551 (1973):

The family is just one of the numerous interrelated forces, including schools, housing, recreation, community life, employment and the juvenile justice system itself which influence a juvenile toward or away from a life of delinquency. [19 Wayne L. Rev. at 1577; footnote omitted]

At least one author has noted that where ordinances similar to the one here challenged are enacted, the delinquency rate remains unchanged. Rubin, Crime and Juvenile Delinquency 22 (1970).

We are satisfied that the Trenton ordinance does not comport with due process. The fact of two public peace adjudications within one year does not make it "more likely than not" that the second was the result of parental action or inaction. The presumed fact in the Trenton ordinance (parental responsibility for delinquent acts of the child) does not flow naturally from the proved fact (a second adjudication within one year). While Euripides reminds us that the gods often visit the iniquities of the fathers upon the children, we are not yet prepared to say that the converse ought to be so.

[143 NJSuper Page 134]

We note that the ordinance, despite its brevity (two paragraphs), contains a severability clause. The presence of such a clause cannot serve to save the remainder of the ordinance since the presumption is an integral part of the whole. See, e.g., Affiliated Distillers Brands Corp. v. Sills , 60 N.J. 342 (1972).

In view of our conclusion that the ordinance must be struck down because of its failure to comport with due process, we do not reach the further question whether the ordinance may also be invalid for the reason that it represents an intrusion into an area preempted by the State Legislature.


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