For modification and remandment -- Chief Justice Hughes, Justices Mountain, Sullivan and Clifford and Judge Conford. Concurring in part and dissenting in part -- Justices Pashman and Schreiber. The opinion of the court was delivered by Conford, P.J.A.D., temporarily assigned. Sullivan, J., concurring in result only. Pashman, J., concurring and dissenting. Justice Schreiber joins in this opinion.
[72 NJ Page 240] The principal adversaries in this litigation are plaintiffs-respondents
Robert E. Schaad and his closely held small corporation, Ocean Grove News Service,*fn1 on the one hand, and the defendant-appellant Ocean Grove Camp Meeting Association of the United Methodist Church*fn2 (hereafter "Ocean Grove" or "defendant"), on the other. As will be seen, the latter exercises, by force of statute, certain police and licensing regulatory powers similar to those of a municipality. Since enforcement of two of its police ordinances is involved, the Ocean Grove chief of police is a nominal party defendant, as were two Ocean Grove residents who precipitated this litigation by filing complaints under the ordinances against Schaad. These complainants have withdrawn from the proceedings.
The Attorney General joined as amicus curiae in support of the constitutionality of the ordinances prohibiting Sunday driving and certain other activities, asserting that they came within the legitimate exercise of the police power of the State. Another amicus, the National Council of Churches of Christ in the U.S.A., was permitted to brief the proposition that the constitutional principle of religious freedom supports the validity of the ordinances.
Plaintiff's violations of the ordinances arise from his regular delivery of several hundred copies of Sunday newspapers in Ocean Grove by truck, beginning late Saturday night and terminating in the early morning hours on the Sunday. Most of those newspapers are not obtainable by Schaad from the publisher until near midnight on Saturday. This course of conduct had been pursued for some years by the predecessor news service owner and operator from whom Schaad purchased the business in 1972. The
distribution of newspapers and the operation of the motor vehicle in the course thereof contravened the ordinances in question which had the purpose and effect of prohibiting such activity at any time on Sundays.*fn3
Subsequent to the filing against him of complaints under such ordinances, plaintiff brought an action in lieu of prerogative writs asserting various grounds of attack upon the validity of the ordinances and of the enabling statutes and seeking injunctive relief against enforcement of the ordinances.
On cross motions for summary judgment, the trial court granted judgment to plaintiff. The court found that the prohibition of newspaper deliveries on Sundays was an unconstitutional infringement of the freedom of the press and that the Sunday driving ban was a violation of the Fourteenth Amendment guaranty of due process. The court also declared the enabling statute, N.J.S.A. 40:97-1 et seq., to be a law respecting the establishment of religion
in violation of the First Amendment with the result that the dependent ordinances were "without any force or effect." The court granted a stay of its judgment (which stay is still extant) upon the condition that, pending appeal, plaintiff would be permitted to conduct his business as theretofore notwithstanding the ordinances.
Ocean Grove appealed from the judgment and the appeal is here by our direct certification to the Appellate Division, where it was pending unheard. R. 2:12-1. 68 N.J. 175 (1975). Ocean Grove challenges both the substance and the scope of the trial court decision in invalidating not only the two ordinances but also the statute under whose authority they were adopted.
After initial argument of the appeal in this court, we remanded the cause for amplification of the record and supplementary fact findings as to the issue whether an estoppel had arisen against defendant effective to shield plaintiff from enforcement of the ordinances. Thereupon the trial court conducted a hearing, concluded there was no basis for an estoppel and re-affirmed its previous disposition of the cause. On the evidence, we have no reason to disagree with the trial court's findings and conclusions on the question of estoppel, and we therefore proceed to examination of the issues involved in the initial disposition.
Before considering the legal questions regarding the statutes and ordinances before us we first outline the relevant facts. Schaad purchased the news service business in October 1972 from a predecessor who had operated it undisturbed for 13 years, making the abbreviated Sunday morning deliveries by truck. He continued this practice without incident or police objection until the formal complaints were filed in August 1974. It does not appear that the prohibition of Ordinance 30 against Sunday driving had ever been enforced with regard to the vehicular delivery of Sunday
newspapers. Actually, the early Sunday delivery had been made to the Ocean Grove Police Headquarters, among others.
When Schaad purchased the business it was agreed with the seller that $850 of the total price of $12,000 would remain in escrow and be paid over to the seller if Schaad's operations were not stopped by Ocean Grove for a year, otherwise to be returned to the buyer.*fn4
At that time Ocean Grove had a "business manager", known after 1974 as an "executive director", a Mr. Frank Henson. Two or three months after Schaad commenced business he asked Henson if he would be permitted to continue his Sunday deliveries. As requested, Schaad wrote Henson a letter explaining that his Sunday deliveries would be only until "about 2:15 A.M."; that this was necessary to serve his customers; that many of them were elderly and all depended upon his service and wished it to continue; that the survival of his business depended upon these Sunday deliveries and that every care would be taken to observe the Sunday quiet of the community. The letter was discussed by Henson with the "business committee" of Ocean Grove, and since it was established that no one had ever complained about the deliveries the committee took no action to prohibit their continuance. On February 16, 1973 Henson wrote Schaad as follows:
The Business Committee of the Ocean Grove Camp Meeting Association was impressed by your letter of January 15 in which you reviewed your method of newspaper delivery and the problems attendant thereto. They appreciated your clear and concise manner of presentation. Sunday morning service is, of course, a matter of concern and they will be grateful for an early completion of your Saturday nite route. * * *
The committee extends its good wishes for your success and urges you to continue the pattern which you have established.
The "business committee" apparently acts as an executive committee, representative of the trustees, who are vested with the responsibility of a governing body by the statute.
But it is not necessary to consider whether the Henson letter may be considered as the "written permission" contemplated in Ordinance 30, for soon thereafter the more comprehensive and restrictive Ordinance 73-2 was adopted, and it admitted of no exceptions. Later the instant complaints were filed against Schaad, and he brought this action to vindicate his right to continue the deliveries.
Our determination of this appeal will rest on our conclusion that the enforcement of Ocean Grove's regulations here in question, as applied to plaintiff's activities, constitutes an impermissible interference with freedom of the press. Certain additional facts, some of which are the subject of judicial notice, are relevant to that issue. Ocean Grove has an area of about a half square mile and is situated on the Atlantic Ocean adjacent to the resort community of Asbury Park. Ocean Grove itself is a summer resort, growing from an all-year population of about 7500 to about 18,000-20,000 in the summer. While newspapers are sold on Sundays in neighboring municipalities, and an affidavit offered on behalf of Ocean Grove expresses the opinion that the walk from any point in Ocean Grove to the nearest such [newspaper] outlet "does not exceed ten minutes", it is well known that a substantial proportion of the permanent residents are middle aged or elderly, and it is evident that many of them, especially in inclement weather, would probably find it difficult to obtain Sunday newspapers without such a home delivery service as plaintiff's.
Plaintiff's initial contention is that the ordinances constitute an unreasonable interference with his right to conduct a lawful business, within such decisions as N.J. Good Humor, Inc. v. Bradley Beach, 124 N.J.L. 162 (E. & A. 1940), and Iannella v. Piscataway Township, 138 N.J. Eq. 598, 600
(Ch. 1946); and see Schmidt v. Newark Bd. of Adjustment, 9 N.J. 405, 415-416 (1952). The right to conduct a lawful business, however, is commonly held subject to reasonable police-power ordinances. Ordinarily, such powers extend to regulation of the use of the streets, N.J.S.A. 40:97-1, Pivnick v. Newark, 14 N.J. Super. 134, 137-138 (Law Div. 1951), and to proscribing certain Sunday activities. In the latter case such ordinances are upheld if they have the secular purpose and effect of protecting people from the burdens of work continued uninterruptedly for seven days or more. See Two Guys from Harrison, Inc. v. Furman, 32 N.J. 199, 228 (1960); Masters-Jersey, Inc. v. Paramus, 32 N.J. 296, 302 (1960); N.J.S.A. 2A:171-5.8 et seq. Although the Sunday prohibitions in the instant ordinances are undoubtedly associated with the religious purposes which fostered the creation of the Ocean Grove Camp Meeting Association, etc. in 1870, the mere fact that a legitimate police-power policy (surcease from uninterrupted labor) coincides with the sectarian views of the association will not suffice to strike down the regulation on establishment-of-religion grounds. See Two Guys from Harrison, Inc. v. Furman, supra (32 N.J. at 214-216); McGowan v. Maryland, 366 U.S. 420, 433-434, 445, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961).
Thus, were these regulations not voidable for undue interference with free circulation of the press, we might have difficulty in striking the regulations solely on due-process grounds of unreasonable interference with the conduct of a lawful business. In the circumstances, we need not pursue that question for purposes of decision of this case.
The free press issue raised by plaintiff need not be examined in any broader context than the requirements of the case before us. Plaintiff does not seek the right to deliver papers during the daylight hours on Sunday, or later
than 2:30 A.M. on Sunday, and it would therefore be inappropriate here to explore the validity of Ocean Grove's regulations -- in free press terms -- in relation to the prohibition of Sunday newspaper deliveries beyond the early Sunday morning hours essential to plaintiff's operations. Cf. State v. Zimmelman, 62 N.J. 279, 287 (1973); Camarco v. City of Orange, 61 N.J. 463, 467 (1972). The question thus narrows to whether, according due deference to Ocean Grove's public-policy decision to forbid sale or distribution of newspapers insofar as the remainder of the 24 hours of the Sabbath is concerned, it is an undue restriction of the press to prohibit delivery of Sunday papers from midnight Saturday to 2:30 A.M. Sunday when the result is that those papers will probably not be delivered to homes in this community at all. We believe this question requires an affirmative response.
Ocean Grove argues that its ordinance is only an "incidental burdening of the press", assertedly permitted by Branzburg v. Hayes, 408 U.S. 665, 682-683, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972), and that the comfort of the community requires the regulation of the time during which newspapers may be distributed. Martin v. Struthers, 319 U.S. 141, 143, 63 S. Ct. 862, 87 L. Ed. 1313 (1943).
The cited cases do not sustain this argument. First, the Branzburg case, which mentions "incidental burdening of the press", involved the claim of a First Amendment privilege by a newspaper reporter when ordered to testify before a grand jury. The reporter agreed not to divulge the names of persons interviewed in return for information but the grand jury demanded the names as well as information not appearing in the newspaper. In dealing with the reporter's claim that the press would be thwarted in its function of obtaining news on controversial topics if he and other reporters were forced to divulge such information before a grand jury, the court adverted to the "incidental burden" mentioned above. Clearly the total ban on the sale or
distribution of Sunday newspapers found in Ordinance 73-2 is more than an incidental burden.
Secondly, Martin v. Struthers, supra, dealt with a city ordinance prohibiting door-to-door solicitation or canvassing. The ordinance was held to be a violation of the First and Fourteenth Amendments. While the court did there state that the comfort of the community may require regulation of the time and manner of distribution of literature, 319 U.S. at 143, 63 S. Ct. 862, Ordinance 73-2, Section 1B, does not purport merely to regulate, but in effect prohibits sale and distribution of Sunday newspapers entirely. Moreover, plaintiff does not seek to solicit, canvass or knock on doors when he delivers his papers. The orders for the papers have already been placed and he is merely acceding to the desires of residents who have ordered the papers.
Since In Matter of Jackson, 96 U.S. 727, 733, 24 L. Ed. 877 (1878), it has been settled that "liberty of circulating is as essential to the freedom [press] as liberty of publishing; indeed without the circulation, the publication would be of little value." See also Lovell v. Griffin, 303 U.S. 444, 452, 58 S. Ct. 666, 82 L. Ed. 949 (1958). Thus an ordinance which, like Ordinance 73-2, Section 1B, prohibited the distribution of any literature, was struck down as unconstitutional. Ibid.
Freedom of the press is of course a fundamental personal right and liberty -- one upon which the successful conduct of our democratic processes largely depends.
Thomas v. Collins, 323 U.S. 516, 530, 65 S. Ct. 315, 322, 89 L. Ed. 430 (1945). Moreover, where there is a charge of legislative abridgement of any of the First Amendment rights, courts are required to carefully "weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of
the rights." Schneider v. Irvington, 308 U.S. 147, 161, 60 S. Ct. 146, 151, 84 L. Ed. 155 (1939).
Accordingly, otherwise legitimate police power goals, such as Sunday rest and quietude and regulation of the use of the streets, "cannot be pursued by means that broadly stifle fundamental personal liberty when the end can be more narrowly achieved." Cf. Shelton v. Tucker, 364 U.S. 479, 488, 81 S. Ct. 247, 252, 5 L. Ed. 2d 231 (1960).
As was noted earlier, any disturbance of the peace and tranquility by plaintiff will be only to the extent of 2-1/2 hours every Sunday -- midnight to 2:30 A.M. His customers order the papers he delivers; therefore there is no unwanted intrusion upon "their right to be let alone". Rowan v. United States Post Office, 397 U.S. 728, 736, 90 S. Ct. 1484, 1490, 25 L. Ed. 2d 736 (1970). The ordinance, drawn in terms of a complete prohibition, crosses the acceptable line of a reasonable "regulation of time, place and manner of distribution" (Martin v. Struthers, supra, 319 U.S. 141, 143, 63 S. Ct. 862, 863, 87 L. Ed. 1313), and becomes an unreasonable infringement upon plaintiff's First Amendment freedom of the press when compared to the "evil to be curbed". Thomas v. Collins, supra (323 U.S. 516, 530, 65 S. Ct. 1315, 89 L. Ed. 430).
In relation to the Sunday aspect of the present free press inhibition, the observations of another court may be peculiarly pertinent. In Pulitzer Publishing Co. v. McNichols, 181 S.W. 1, 2 (Mo. Sup. Ct. 1915), the court stated:
The great service the press is rendering to humanity is performed on Sunday as well as upon Monday or any other day of the week, and its beneficence is more potent on the former than on the latter, for the simple reason that the toiling masses have more time to read the papers on Sunday than upon any other day * * *.
We therefore hold Ordinance 73-2 invalid on free press grounds, but only to the extent of its prohibition of plaintiff's present deliveries by truck until 2:30 A.M. on Sundays.
By the same token, Ordinance 30, which prohibits the driving or parking of automobiles or other motor vehicles within Ocean Grove on Sunday, must, to the same limited extent, be deemed an invalid infringement of freedom of press.
The trial court chose to enjoin plaintiff's prosecution for violation of the ordinances on the premise not only of unconstitutional abridgement of plaintiff's rights to exercise freedom of the press, but also (1) on the ground that total prohibition of driving of vehicles on Sunday is invalid "as an overly broad exercise of the police power" and (2) on the sweeping ruling that N.J.S.A. 40:97-1 et seq., the statutory grant of power to camp meeting associations formed to provide meeting grounds for religious purposes, to adopt police-power ordinances, was violative of the establishment-of-religion clause of the First Amendment of the United States Constitution.
As to the first added ground of decision mentioned, we regard that holding as unnecessary and inappropriate in this case. Plaintiff does not seek to drive his vehicle on Sundays except to the limited extent already indicated. Relief is amply afforded him by an order that he may drive his vehicle for purposes of distribution of papers from midnight to 2:30 A.M. on Sunday. The validity of the ordinance in its more expansive aspect may be determined if it is enforced against one driving at other times on a Sunday and such enforcement is challenged.
The observations in the prior paragraph might ordinarily also be applicable to the trial court's invalidation of the statutes vesting limited municipal powers in camp meeting associations on constitutional-religious grounds. It is so obvious as not to require citations that an appellate court need not decide a case on every ground advanced by the successful litigant or held by the trial court, when less will sustain the judgment. A special application of this principle is the so-called "rule of necessity", i.e.,
that the resolution of controversies on constitutional grounds is to be avoided where possible. See generally Barnett, "Avoidance Of Judicial Decision Upon Constitutional Ground When Decision Can Be Based Upon Another Ground", 28 Ore. L. Rev. 201 (1949); Note, "Avoidance of Constitutional Issues in Civil Rights Cases", 48 Colum. L. Rev. 427 (1948). And see Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S. Ct. 466, 80 L. Ed. 688 (1936). The rule received early expression in an opinion by Chief Justice Marshall while he was sitting on the circuit bench:
No questions can be brought before a judicial tribunal of greater delicacy than those which involve the constitutionality of a legislative act. If they become indispensably necessary to the case, the court must meet and decide them; but if the case may be determined on other points, a just respect for the legislature requires that the obligations of its laws should not be unnecessarily and wantonly assailed. Ex parte Randolph, 20 F. Cas. pp. 242, 254 (No. 11,558) (C.C.D. Va. 1833).
It seems to us, by analogy to the foregoing rule of necessity, that where there is more than one potential constitutional basis for invalidation of a restriction based upon a statute and a dependent ordinance, as here, a court should, ordinarily, lean toward that ratio decidendi in judgment which will save as much of the statute and ordinance or of the range of their application, as possible, and rest its invalidation thereof on the narrowest basis consistent with relief to the successful suitor. Such a principle of judicial deference to legislation would have been particularly apropos here when the extraneous issue entertained by the trial court involved the total destruction of a community's statutory governing powers continuously exercised and dating back, in part, over a century.
Although, therefore, we think it was a mistaken exercise of judicial discretion for the trial court to have entered upon the religious issue in this particular case, we have decided to deal with it on its merits for two reasons. First, three partially dissenting members of this
Court have chosen to express their earnestly held view that the statutes are indeed invalid on establishment grounds. Second, a published decision of a county court has, since the pendency of this appeal, purported to invalidate the municipal court of Ocean Grove on the same broad grounds.*fn5
It therefore impresses us as in the general interest, in these peculiar circumstances, for us to lay to rest this question of considerable public importance notwithstanding the fact that our affirmance of the relief awarded plaintiff below on free-press grounds would have rendered it unnecessary.
We accept the premise of the trial court that the criteria for validity set forth in Lemon v. Kurtzman, 403 U.S. 602, 612-613, 91 S. Ct. 2105, 2111, 29 L. Ed. 2d 745 (1971), are those to be applied here to determine whether the Ocean Grove enabling legislation is consistent with the Establishment clause:
Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, * * *; finally, the statute must not foster "an excessive government entanglement with religion."
However, the underlying decisions of the United States Supreme Court from which Lemon has distilled the three criteria stated in the foregoing excerpt make it plain that careful and detailed analysis and weighing of the factual circumstances in which the questioned legislation arose and
now operates is requisite for a proper adjudication as to validity. We discern the ultimate benchmark to be whether the legislation impermissibly fosters religion rather than serves secular purposes with only incidental relation to religion or religious interests or organizations. Cf. Giannella, "Religious Liberty, Nonestablishment, and Doctrinal Development: Part II. The Nonestablishment Principle", 81 Harv. L. Rev. 513, 515, 517-518, 532-533 (1968). The opinion of ...