On certification to the Superior Court, Law Division.
For affirmance -- Chief Justice Wilentz and Justices Pashman, Clifford, Schreiber, Handler, Pollock and O'Hern. For reversal -- None. The opinion of the Court was delivered by O'Hern, J.
The issue here is whether Newark's municipal loitering ordinance has been preempted by the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 to 98-4.
On various dates in 1979 defendants Randall Beck, Cornell Daniels, Eliezer Martinez and James Crawley were separately
charged with loitering in violation of Newark Revised Ordinances § 17:2-14 (N.R.O. 17:2-14). The complaints against Beck, Daniels and Martinez alleged that each "did then and there loiter without legitimate purpose or reason" at a specified time and place within the City of Newark. The complaint against Crawley charged that he had loitered "with intent to buy or sell drugs." The alleged offenses occurred both before and after September 1, 1979, the effective date of the New Jersey Code of Criminal Justice.*fn1
Prior to trial all defendants moved before the municipal magistrate to dismiss the complaints on the ground that the municipal ordinance had been preempted and rendered unenforceable by the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 to 98-4. The magistrate, ruling that the State Penal Code had preempted the ordinance, dismissed the complaints. The City of Newark appealed to the Law Division. That court agreed with the municipal court that the loitering ordinance was preempted. The City then appealed to the Appellate Division and the Attorney General was invited to participate as amicus curiae. Before oral argument in the Appellate Division we directly certified the matter. 87 N.J. 426 (1981). We now affirm.
Our holding rests primarily on the "preemption by exclusion" clause of N.J.S.A. 2C:1-5(d). This clause prohibits enactment or enforcement of any local ordinance "conflicting with any . . . policy of this State . . . whether that policy be expressed by inclusion of a provision in the code or by exclusion of that subject from the code." [emphasis added]. With this provision, the Legislature meant to alert the judiciary to "the need to protect . . . negative unexpressed state policies." Final Report
of N.J. Law Revision Commission, Vol. II: Commentary, pp. 12-13. In this case, N.J.S.A. 2C:1-5(d) requires us to determine whether the absence of a general loitering proscription signifies an affirmative legislative intent to decriminalize that conduct except as covered by the Code.
Application of the "preemption by exclusion" branch of N.J.S.A. 2C:1-5(d) presents the judiciary with a difficult task. It requires us to determine the Legislature's will without reference to a specific statutory text. Courts must infer legislative intent from the overall structure of the Penal Code and its legislative history. In some cases such secondary sources may provide little guidance.
In this case there is ample evidence of legislative intent. Chapter 33 of the Code, entitled "Riot, Disorderly Conduct and Related Offenses," deals extensively with street conduct of the same class as loitering. It proscribes possession of alcohol in public places by minors, N.J.S.A. 2C:33-15; obstructing highways or public passages, N.J.S.A. 2C:33-7; interference with transportation, N.J.S.A. 2C:33-14; harassment, N.J.S.A., 2C:33-4; failure to disperse on order of a peace officer, N.J.S.A. 2C:33-1; and disorderly conduct, N.J.S.A. 2C:33-2. Given the Legislature's comprehensive intervention in this area, we find the conspicuous absence of a loitering statute from chapter 33 of the Code to be significant. This omission is also significant because New Jersey's pre-Code criminal law included specific prohibitions on vagrancy and loitering. N.J.S.A. 2A:170-1 to -4. These provisions were repealed and not reincorporated into the new Code. Although the Criminal Law Revision Commission's proposed code contained a provision outlawing certain forms of loitering,*fn2 the Legislature removed that provision before [90 NJ Page 246] enactment. The absence of an official explanation of the deletion limits its value as an interpretative aid. See 2A Sutherland, Statutory Construction (4th ed., Sands, 1973), § 48.18. At the least, however, we know that the Legislature made a conscious decision to exclude a general loitering provision from the Code.*fn3 At the time the Legislature considered the proposed loitering provision, several jurisdictions had declared nearly identical legislation unconstitutional. People ...