On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-6395-06 (A-3235-06T1). On appeal from the Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal Nos. 66-2006 and 67-2006 (A-4036-06T1).
The opinion of the court was delivered by: Lisa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lisa and Simonelli.
In these appeals,*fn1 we consider challenges to municipal ordinances prohibiting convicted sex offenders from living within a designated distance of schools, parks, playgrounds and daycare centers. The trial courts in both cases invalidated the ordinances, finding them preempted by state law and violative of the due process, ex post facto and double jeopardy clauses of the New Jersey Constitution. We affirm. We hold that the ordinances are preempted by state law and therefore invalid. Because we decide the appeals on preemption grounds, we do not address the constitutional issues.
The Galloway ordinance prohibits a person over the age of eighteen who has been convicted of a sexual offense against a minor as listed in N.J.S.A. 2C:7-2, and who is required to register with the authorities pursuant to Megan's Law, see N.J.S.A. 2C:7-1 to -19, from living within 2500 feet of any school, park, playground or daycare center in the Township. Upon notice from the Township, such a person must move within sixty days, or be subject to a fine of $1250 to $5000, imprisonment up to six months, and community service up to ninety days. The ordinance contains a grandfather clause, exempting anyone who established a residence prior to the introduction date of the ordinance.
G.H., a twenty-year-old college freshman at Richard Stockton College, in Galloway Township, moved into a dormitory on campus after the effective date of the grandfather clause. G.H. had been adjudicated delinquent for an offense committed when he was fifteen years old, which, if committed by an adult, would constitute fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b. The victim was a thirteen-year-old girl. G.H. was ordered to serve two years probation, which he had successfully completed. He had no other criminal history. G.H. was designated as a Tier 1 (low risk of reoffense) sex offender pursuant to Megan's Law. The Township sent him a notice advising that he was required to move within sixty days and could not live within 2500 feet of the campus (or, presumably in any other "buffer zone" in the Township).
G.H. brought a complaint in lieu of prerogative writs challenging the Galloway ordinance. No material facts were in dispute. After hearing oral argument on G.H.'s motion for summary judgment, Judge Valerie H. Armstrong issued a thorough written opinion declaring the ordinance invalid on the bases we have mentioned. Galloway Township filed this appeal.
The Cherry Hill ordinance is similar to that of Galloway Township. The only significant difference is in its penalty provisions. It designates each day of continuing violation a separate and distinct offense, and provides for a fine not to exceed $1250 per offense, together with imprisonment up to ninety days or community service up to ninety days.
James Barclay and Jeffrey Finguerra were convicted sex offenders*fn2 (CSO), over age eighteen, who moved into the Hillside Motel in Cherry Hill Township, which is located within 2500 of Camden Catholic High School. They moved after the effective date of the ordinance's grandfather clause. Each of the men was a recipient of Section 8 housing allowance from the State, and each moved into the motel after approval of the residence by his parole or probation officer. Each notified the Cherry Hill Township Police Department of the location of his residence. The men were notified by the Township they were in violation of the ordinance and were required to move within sixty days. They did not move because they were awaiting Section 8 housing and approval of a new residence by their parole or probation officers. After the passage of sixty days, the Township issued citations against them for violating the ordinance.
The matter came before the Township municipal court, which denied defendants' motions to dismiss on the grounds that the ordinance was invalid. The cases were then tried on stipulated facts. Defendants were found guilty, and sentenced to a fine of $50 plus $33 costs for each day beyond the sixty-day period after which they were notified. The municipal court suspended imposition of sentence on all but one of the charges for each defendant.
Defendants appealed to the Law Division. After hearing oral argument, the Law Division judge issued a written decision, in which he agreed with and substantially adopted Judge Armstrong's decision and invalidated the Cherry Hill ordinance on the bases we have mentioned. Cherry Hill filed this appeal.
Although the two cases come to us by different procedural routes, they present the same issue. Indeed, the record informs us that more than 100 municipalities in New Jersey have recently adopted similar ordinances. The facilities designated in the Galloway and Cherry Hill ordinances are typical, but others are more expansive, including such additional facilities as school bus stops, libraries, convenience stores, sporting facilities, and the like. Most of the ordinances establish 2500 foot restrictions, but others designate different prohibited distances. And, some contain different penalties and other variations.
Galloway Township and Cherry Hill Township (the municipalities) argue*fn3 that the trial courts erred in finding their ordinances preempted by state law because the State has neither expressly nor impliedly occupied the field covered by the ordinances. Their argument rests upon the assertion that the applicable state law, Megan's Law, deals with registration and notification regarding CSOs, but does not include provisions restricting locations in which they live. Therefore, the municipalities argue that the ordinances serve a different purpose than Megan's Law and complement that law by providing additional measures for the safety of their inhabitants.
We do not agree with the municipalities' narrow characterization of the purpose of Megan's Law. The far-reaching scope of Megan's Law and its multilayered enforcement and monitoring mechanisms constitute a comprehensive system chosen by the Legislature to protect society from the risk of reoffense by CSOs and to provide for their rehabilitation and reintegration into the community. The system is all-encompassing regarding the activities of CSOs living in the community. We conclude that the ordinances conflict with the expressed and implied intent of the Legislature to exclusively regulate this field, as a result of which the ordinances are preempted.
Municipalities are authorized by the Legislature to enact and enforce ordinances for specified enumerated purposes, N.J.S.A. 40:48-1, and, as long as not contrary to New Jersey or federal law, for any other purpose for the preservation of the health, safety and welfare of the municipality and its inhabitants. N.J.S.A. 40:48-2. And, laws concerning municipalities should be liberally construed in favor of local authority. N.J. Const. art. IV, § 7, ¶ 11.
However, while a municipality's powers are broad, they are not without limitations. Even without a direct conflict, a municipality may not exercise a power where the Legislature has clearly intended to preempt the field. Summer v. Twp. of Teaneck, 53 N.J. 548, 554 (1969). There is a limitation on the power of municipalities to enact ordinances on matters that are otherwise under their jurisdiction in situations where the State has preempted the field. State v. Crawley, 90 N.J. 241, 248 (1982). When the State reserves the right to legislate on a particular matter, municipalities are prohibited from legislating in that area. Id. at 250. Legislative intent is critical to determining whether the State has exhausted a field, such that preemption occurs and municipal legislation is barred. Mack Paramus Co. v. Mayor & Council of Paramus, 103 N.J. 564, 573 (1986).
In Overlook Terrace Management Corp. v. Rent Control Board of West New York, 71 N.J. 451, 461-62 (1976) (citations and internal quotation marks omitted), the Supreme Court set forth five factors to consider in determining whether the Legislature intended preemption:
1. Does the ordinance conflict with state law, either because of conflicting policies or operational effect (that is, does the ordinance forbid what the Legislature has permitted or does the ordinance permit what the Legislature has forbidden)?
2. Was the state law intended, expressly or impliedly, to be exclusive in the field?
3. Does the subject matter reflect a need for uniformity? . . . .
4. Is the state scheme so pervasive or comprehensive that it precludes coexistence of municipal regulation?
5. Does the ordinance stand as an obstacle to the accomplishment and execution of the full purposes and objectives of the Legislature?
Megan's Law is part of Title 2C, the Code of Criminal Justice. See N.J.S.A. 2C:1-1. In 1994, the Legislature enacted a package of bills pertaining to CSOs. Although only the Registration Act, L. 1994, c. 133 (codified at N.J.S.A. 2C:7-1 to -5), and the Community Notification Act, L. 1994, c. 128 (codified at N.J.S.A. 2C:7-6 to -11) were officially named "Megan's Law," see N.J.S.A. 2C:7-19, all of the bills comprising the package are commonly referred to collectively as Megan's Law. See Doe v. Poritz, 142 N.J. 1, 12 (1995). All of the laws were placed in Title 2C. See Cannel, New Jersey Criminal Code Annotated, comment on N.J.S.A. 2C:7-1. Of particular significance with respect to the issues in this case was the Community Supervision for Life statute, L. 1994, c. 130, §2 (codified at N.J.S.A. 2C:43-6.4).*fn4 Since their original enactment, these laws have been amended from time to time, expanding the scope of the State's regulation of CSOs.
In Crawley, supra, 90 N.J. at 251, the Court stated that the Legislature intended to exclude from municipal legislation all areas covered by the criminal code. The Court cited the legislative history surrounding the enactment of the criminal code, which expressed the goal of promoting uniformity:
It shall be the purpose of [the Code of Criminal Justice] to modernize the criminal law of this State so as to embody principles representing the best in modern statutory law, to eliminate inconsistencies, ambiguities, outmoded and conflicting, overlapping and redundant provisions and to revise and codify the law in a logical, clear and concise manner. [Id. at 250-51 (quoting L. 1968, c. 281 § 4).]
In Doe v. Poritz, supra, 142 N.J. at 12, the Court entertained a constitutional challenge to the registration and notification requirements of Megan's Law. A CSO must undergo individualized assessment in order to determine his or her risk of reoffense. N.J.S.A. 2C:7-8. Based upon that assessment, the community is notified of the presence of the CSO. Ibid.
Whenever a CSO moves to another residence, law enforcement must be notified, and, whether the move is within the same municipality or to a different one, the notification procedure is instituted again. N.J.S.A. ...