Submitted January 5, 1998 - Decided February 4, 1998
On appeal from Superior Court of New Jersey, Law Division, Monmouth County.
Before Judges Petrella, Eichen and Lesemann.
The opinion of the court was delivered by: Petrella, P.j.a.d.
After his motion to dismiss the indictment was denied, defendant Peter Rogers pled guilty to an amended disorderly persons charge of unauthorized practice of law (N.J.S.A. 2C:21-22b(2)) pursuant to a conditional plea agreement that preserved his right to challenge the constitutionality of the statute. Rogers was sentenced to a one year probationary term, a $350 fine, 100 hours of community service, and payment of $870 in restitution. Appropriate penalties were assessed.
On appeal, filed nunc pro tunc on leave granted, Rogers argues that the trial Judge erred in denying his motion to dismiss the indictment because the statute under which he was charged is void for vagueness, and thus unconstitutional.
The facts giving rise to the conviction may be simply stated. Emely Padilla had been served with a complaint by Citibank Mortgage Corp. (Citibank) which sought to foreclose on her house. Padilla received a notice dated March 24, 1995, signed by Rogers as President of Express Consolidation, Refinance & Mortgage Consultation, Inc., indicating that the pending foreclosure by Citibank had come to his attention and offering to help the Padillas with the foreclosure on their home by buying the house, solving money problems or refinancing. Padilla responded to the letter and Rogers called Padilla to discuss how his company could help.
Rogers met with Padilla at her home to explain how he was going to help her avoid foreclosure through refinancing her loan or obtaining a buyer for her house. Padilla agreed to pay the equivalent of one month's mortgage payment for these services and signed a contract on May 15, 1995, which stated: "Any fees paid are not to be construed as mortgage application fees, appraisal fees, legal fees or as any fees other than consultation fees and are non-refundable." Apparently Padilla told Rogers that she did not know how to answer Citibank's foreclosure complaint. Rogers explained to her that she had thirty-five days to file an answer. Padilla gave defendant the information he needed to prepare an answer to the complaint. Defendant prepared the answer to the complaint and submitted it to Padilla for her signature. Padilla indicated that defendant filed the answer with the court.
At his plea proceedings, Rogers admitted preparing the answer to the complaint, but stated that he gave it to Padilla to file with the court.
Rogers argues that the statute is facially vague and vague as applied, and therefore, is unconstitutional. N.J.S.A. 2C:21-22 states in pertinent part:
b. A person is guilty of a crime of the fourth degree if the person knowingly engages in the unauthorized practice of law and; ...
(2) Derives a benefit ...
Here, Rogers contends that N.J.S.A. 2C:21-22(b) is unconstitutionally vague because it fails to define what constitutes the "practice of law." *fn1
Generally, a presumption of validity attaches to a duly enacted statute. Matter of C.V.S. Pharmacy Wayne, 116 N.J. 490, 497 (1989), cert. denied, 493 U.S. 1045, 110 S. Ct. 841, 107 L. Ed. 2d 836 (1990); Piscataway Township Bd. of Educ. v. Caffiero, 86 N.J. 308, 318, appeal dismissed, 454 U.S. 1025, 102 S. Ct. 560, 70 L. Ed. 2d 470 (1981); Fried v. Kervick, 34 N.J. 68, 74 (1961). Nevertheless, vague laws are unenforceable under the Federal and State Constitutions. See U.S. Const. amend. V; N.J. Const. art. I, ¶ 1. The vagueness doctrine is grounded in concepts of fairness, and "requires that a law be sufficiently clear to apprise an ordinary person of its reach." Matter of CVS Pharmacy of Wayne, (supra) (116 N.J. at 500) (citing Brown v. City of Newark, 113 N.J. 565, 577 (1989); State v. Lee, 96 N.J. 156, 165-166 (1984); Town Tobacconist v. Kimmelman, 94 N.J. 85, 125 (1983)). See In re Polk License Revocation, 90 N.J. 550, 575 (1982). "`The underlying principle that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.'" State v. Lashinsky, 81 N.J. 1, 17 (1979) (quoting Cotten v. Kentucky, 407 U.S. 104, 110, 92 S. Ct. 1953, 1957, 32 L. Ed. 2d 584, 590 (1972). The Supreme Court noted in Town Tobacconist, (supra) (94 N.J. at 118):
Clear and comprehensible legislation is a fundamental prerequisite of due process of law, especially where criminal responsibility is involved. Vague laws are unconstitutional even if they fail to touch constitutionally protected conduct, because unclear or incomprehensible legislation places both citizens and law enforcement officials in an untenable position. Vague laws deprive citizens of adequate notice of proscribed conduct ... and fail ...