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State v. Finance American Corp.

Decided: December 9, 1981.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FINANCE AMERICAN CORPORATION, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.

Bischoff, King and Polow. The opinion of the court was delivered by King, J.A.D.

King

[182 NJSuper Page 35] Defendant appeals from a judgment entered by the Law Division after a trial de novo on the municipal court record

finding it guilty of violating N.J.S.A. 2C:33-4(a) because its agent made harassing telephone calls to one of its debtors while she was at work.*fn1

N.J.S.A. 2C:33-4 reads in pertinent part as follows:

A person commits a petty disorderly persons offense if, with purpose to harass another, he: a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

We reject defendant's initial contention that the evidence failed to support a finding that the statute was violated. On the evidence presented, the trial judge reasonably could have found that defendant's agent persisted in calling the debtor at her job at Resorts International where she worked as a cashier supervisor. These calls were made after she informed them that she was not permitted to accept calls. One of defendant's employees also directed a racial slur at her and threatened police and Casino Control Commission intervention. From such constant dunning conduct defendant's agent's "purpose to harass" was reasonably deducible. In addition, defendant must be charged with the knowledge that the constant calls, although made during the day, were made at "extremely inconvenient hours" from the debtor's viewpoint, and that the racial epithet was "offensively coarse" or at least "likely to cause annoyance or alarm." Defendant's reliance on State v. Rosenfeld , 62 N.J. 594 (1973), is unavailing. The statute there interpreted attempted to regulate the content of speech, which the court held was permissible only as to words likely to threaten an immediate breach of the peace. N.J.S.A. 2C:33-4, on the other hand, addresses not offensive language but rather verbal harassment which lacks the intent to communicate political, philosophical, social or artistic expression entitled to special constitutional deference.

Defendant also contends that N.J.S.A. 2C:33-4(a) is unconstitutionally overbroad and vague. In the Law Division this argument was summarily rejected. The State disputes defendant's standing to argue overbreadth, reasoning that defendant's theory that the statute will impinge upon protected conduct is so speculative as to defeat standing. Although the State did not raise the standing issue below, we chose to address it because of the constitutional values allegedly at stake.

The leading case is Broadrick v. Oklahoma , 413 U.S. 601, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973), in which the court denied standing to state employees who sought to overturn, on grounds of overbreadth, a state law barring public employees from partisan political activities. The court acknowledged the general rule that a "person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court." 413 U.S. at 610, 93 S. Ct. at 2914. But the court noted an exception where the statute is claimed to impair First Amendment freedoms:

In order to acquire standing to assert an overbreadth claim, defendant must make a "strong showing that the 'statute's deterrent effect on legitimate expression is . . . real and substantial' [citations omitted] and that the sweep of the legislation will impermissibly hobble the exercise of protected First Amendment rights [citations omitted]." N.J. Chamber of Commerce v. N.J. Elec. Law Enforcem., Comm'n , 82 N.J. 57, 66 (1980), quoting in part from Young v. American Mini Theatres , 427 U.S. 50, 60, 96 S. Ct. 2440, 2447, 49 L. Ed. 2d 310, 320 (1976).

More than allegations of a subjective chill must be made; defendant must claim a specific objective harm, either present or predictable. Bigelow v. Virginia , 421 U.S. ...


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