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Allen v. City of Bordentown

Decided: February 13, 1987.


Haines, A.j.s.c.


[216 NJSuper Page 560] Numerous municipalities throughout the country have adopted curfew ordinances intended for the control and protection of juveniles. The dissent to the denial of certiorari in Bykofsky v. Middletown, 401 F. Supp. 1242 (M.D.Pa.1975), aff'd 535 F.2d 1245 (3 Cir.1976), cert. denied 429 U.S. 964, 97 S. Ct. 394, 50 L. Ed. 2d 333 (1976), refers to "thousands of towns with similar [curfew] ordinances." 429 U.S. at 965, 97 S. Ct. at 395. A few state and federal courts have considered their validity but no case has reached the United States Supreme Court. Curfew ordinances have not been the subject of any published

opinion in New Jersey, although several of our municipalities have adopted them. Two are involved in the present litigation; Newark adopted one in 1984, Newark, N.J. Rev. Ordinances tit. 17, ch. 2, § 4 (1984), Trenton in 1983, Trenton, N.J. Ordinances, §§ 83-134 (1983). The issues raised by these ordinances involve not only the constitutional rights of children and parents but also the power of government to curtail those rights. These questions have not been settled.

The City of Bordentown adopted its nonemergency curfew ordinance in 1980 as an amendment to an existing anti-loitering ordinance. It prohibits minors under 18 years-of-age, with certain exceptions, from being in public places between the hours of 9:00 p.m. and 6:00 a.m. and charges parents with responsibilities for their children's behavior. Its reasons for doing so do not appear in the record as part of the enactment or otherwise.

Plaintiffs, William Allen and Patricia Schuster, as parents of Keith Allen and Scott Schuster, age 16 and 17 respectively, have been charged with curfew violations. They allegedly occurred when (1) Keith Allen was found walking on a public street in the city at 10:46 p.m. on May 15, 1986, and (2) when Scott Schuster was found eating in a restaurant in the city at 10:15 p.m. The parents, on conviction, are subject to a fine not exceeding $300, or imprisonment not exceeding 30 days, or both.

The parents have applied to this court for an injunction enjoining the enforcement of the ordinance. The Township of Willingboro has been permitted to intervene by reason of its concern about the validity of its own curfew ordinance, although the question of its validity is not considered in these proceedings. This opinion responds to an order to show cause. It concludes that Bordentown's curfew ordinance is facially unconstitutional and therefore unenforceable.

A. Police Power.

N.J.S.A. 40:48-1 provides that municipalities may "make, amend, repeal and enforce ordinances" to preserve the public peace and order and to prohibit any practice tending to annoy or injure persons in the public streets. N.J.S.A. 40:48-2 authorizes municipalities to adopt ordinances for the "protection of persons and property, and for the preservation of the public health, safety and welfare. . . ." Our Constitution provides that any law concerning municipal corporations shall be liberally construed in their favor. N.J. Const. (1947), Art. IV, § VII, par. 11. Moreover, ordinances are presumed valid and reasonable. "This presumption may be overcome only by proofs that preclude the possibility that there could have been any set of facts known to the legislative body or which could reasonably be assumed to have been known which would rationally support a conclusion that the enactment is in the public interest." Hutton Park Gardens v. West Orange, 68 N.J. 543, 565 (1975).

The Bordentown curfew ordinance is examined here with these precepts in mind.

B. Vagueness.

An ordinance containing language so imprecise that it cannot be understood by persons of ordinary intelligence does not give fair notice of the acts which it forbids or requires and therefore denies due process. Smith v. Goguen, 415 U.S. 566, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974). An ordinance which fails to set forth adequate standards attracts discriminatory enforcement. Ibid. Vague language and inadequate standards also permit the subjective and therefore impermissible enforcement of penal ordinances by law enforcement personnel. Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S. Ct. 2294, 2298-2299, 33 L. Ed. 2d 222 (1972). The claim that the Bordentown ordinance is unconstitutionally vague is clearly correct.

Section 4 of the ordinance authorizes a police officer "in the exercise of reasonable judgment," to determine that any

person in any "public place" is violating the anti-loitering provisions of the ordinance. He may order such person to leave "if he deems it necessary for the preservation of the public peace and safety, or the protection . . . use or enjoyment" of public or private real property and "facilities." If the order is not obeyed, or the offender returns to the public place within three hours, the ordinance is violated. The definition of "public place" includes private real property and certain motor vehicles. The term "facilities" is not defined.

The words "reasonable judgment," standing alone, provide no ascertainable standard by which to measure the decision of a police officer. This is especially significant when dealing with a law which restricts constitutionally guaranteed freedoms and provides criminal sanctions for its violation. What judgment is "reasonable"? The discretion given to the officer is nearly unrestricted. No comfort is provided by the law's requirement that the officer's "reasonable judgment" be used to determine whether "the presence of any person . . . in any public place is creating, causing or contributing" to:

a danger of the breach of the peace; . . . any disturbance or annoyance to the comfort and repose of any person; obstruction of the free passage of pedestrians, bicycles, baby carriages and strollers, or vehicles; or obstruction, molestation or inference with any person by the utterance of loud and offensive or profane or indecent language, or audible and annoying, offensive, disgusting, insulting or sexually suggestive remarks . . . to . . . any person in whose hearing the same are made.

These provisions permit the officer in the exercise of his "reasonable judgment" to speculate subjectively as to whether the enumerated dangers are likely to occur in the future, whether action is necessary to preserve the peace, what may be an "annoyance," what constitutes "free passage" of pedestrians and vehicles and what language is "offensive or profane or indecent . . . or annoying."

Many of these words, if viewed as modifiers of the term "reasonable judgment," are vague themselves. What is likely to "create a danger" of a breach of the peace? What is a "disturbance or annoyance"? Coates v. Cincinnati, 402 U.S. 611,

91 S. Ct. 1686, 29 L. Ed. 2d 214 (1971) considered an ordinance which prohibited three or more persons from assembling on a sidewalk and conducting themselves in a manner which would be "annoying to persons passing by." The Court held that the word "annoying" does not provide a standard and that the ordinance was unconstitutional. Cincinnati was free to enact reasonable ordinances dealing with the use of sidewalks and streets but could not "constitutionally do so through the enactment and enforcement of an ordinance whose violation may entirely depend upon whether or not a policeman is annoyed." Id. at 614, 91 S. Ct. at 1688. What is "free passage"? Does a pedestrian or a bicycle or a stroller need three feet or six feet for passage to be free? What language is "offensive"? Other terms are equally imprecise but there is no point in extending the analysis. These modifiers do not modify; they expand the almost unfettered discretion of the officer.

One court, dealing with a curfew ordinance, found that the words "reasonable necessity" were not impermissibly vague. In Bykofsky v. Middletown, supra, the court said that "reasonable necessity" is a widely used, well understood phrase constituting an ascertainable fixed standard. 401 F. Supp. at 1249. "Reasonable necessity," however, is not the same as "reasonable judgment." Arguably, "necessity" is a term more precise than "judgment" but this court finds both phrases to be less instructive than the law requires.

Other provisions in the Bordentown ordinance are equally vague and equally destructive to its validity. Section 6 provides that the curfew shall not apply to a minor who is "upon an emergency errand or upon legitimate business," if the minor carries a police department pass. No definition of these terms appears in the ordinance. An "emergency errand" could be one required for the purpose of securing immediate medical assistance for an injured parent or one merely designed to correct a social omission, such as the failure to deliver a promised gift. The first is surely an "emergency errand" but

most would think the second is not. That determination, however, is subjective. The failure to deliver the gift may promote a family crisis and therefore be clearly an "emergency" in the minds of all members of the family but not in the mind of a police officer. The phrase cannot survive the vagueness challenge.

The same must be said of the words "legitimate business." The word "legitimate" is not defined. Does it mean business permitted by law? Is business "legitimate" because the minor so believes? Who is to say what is "legitimate business"? Again, the definition will be supplied by a police officer on a subjective basis permitting the discriminatory enforcement of the ordinance.

The Bordentown ordinance also requires possession of a pass issued by the police department of the city upon application of the parent or guardian. No language in the ordinance provides any direction as to when a pass shall be issued by the department. That decision is left entirely to its discretion. This requirement is eliminated "under emergent conditions precluding application for a pass," provided there is an explanatory parental note in the possession of the minor. The words "emergent conditions" are no different than the words "emergency errand." They fail to achieve constitutional validity for the same reason.

C. Overbreadth.

An ordinance which reaches too far, stifling the exercise of constitutional rights when more narrowly drawn provisions will accomplish the same purpose, is unconstitutionally overbroad. The overbreadth doctrine applies when a law "does not aim specifically at evils within the allowable area of [government] control but . . . sweeps within its ambit other activities that in ordinary circumstances constitute an exercise" of protected First Amendment rights. Thornhill v. Alabama, 310 U.S. 88, 97, 60 S. Ct. 736, 741, 84 L. Ed. 1093 (1940).

The Bordentown curfew ordinance prohibits every minor under the age of 18 years from being in a "public place" between the hours of 9:00 p.m. and 6:00 a.m. every day of the year. The only exceptions are (1) when a minor is accompanied by a parent or guardian, or (2) is upon an emergency errand or legitimate business consented to by the parent or guardian, and then only if the minor possesses a pass issued by the police department upon application of the parent or guardian, or (3) under emergent conditions precluding application for a pass provided the minor possesses a note from the parent or guardian identifying the minor, the emergency involved and the time of day to be encompassed by the note.

It therefore appears that the activities of both emancipated and unemancipated minors are limited by the ordinance. Minors accompanied by a responsible adult who is not a parent or guardian (defined as an "adult person having care, custody or control of a minor") are nevertheless subject to the law. No provisions are made permitting attendance at late school events, church affairs, political meetings or sports events unless a parent or guardian accompanies the minor or a pass is obtained. These activities are to be encouraged, not discouraged, by unnecessarily burdensome restrictions.

A 17-year-old minor who visits a friend in an adjoining house between the prohibited hours is subject to the criminal penalties of the ordinance, as are the parents of that minor. The definition of "public place" includes "privately-owned real property." A minor standing on the front lawn of his or her own home between the hours of 9:00 p.m. and 6:00 a.m. violates the ordinance unless the person owning or controlling the property has given prior permission for this so called "loitering" activity. A minor responding to a life-threatening family emergency must delay the errand until a parent or guardian has provided an explanatory note for the minor to carry. No exception is made in case the parent or guardian is too incapacitated to provide the note. The curfew hours may be unreasonable.

Nothing in the ordinance provides any basis for the selection of any particular time span for the curfew.

It is obvious from this recital that the ordinance is unconstitutionally overbroad. It contains unnecessarily sweeping restrictions of fundamental personal liberties of children and adults: their freedom of speech, assembly and religion, as well as their right to travel and to loiter. Walking, strolling, wandering, and loafing "are historically part of the amenities of life as we have known them. . . . these unwritten amenities have been in part responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity." Papachristou v. Jacksonville, 405 U.S. 156, 164, 92 S. Ct. 839, 844, 31 L. Ed. 2d 110 (1972). Papachristou describes these amenities as fundamental rights. See also Richards v. Thurston, ...

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