Update September 26, 2022 - the Runnemede Borough attorney has agreed that their Disorderly Persons Ordinance should be repealed. Below is the initial letter and the borough attorney's response. For more information on this subject see Loitering Ordinances - Invalid in New Jersey.
From: John Paff
Sent: Monday, August 29, 2022 4:30 PM
Subject: Runnemede Police Department's enforcement of a preempted ordinance.
Dear Mayor Kappatos and Members of the Borough Council:
I write, both individually and in my capacity as Chairman of the New Jersey Libertarian Party’s Preempted Ordinance Repeal Project to request the Mayor and Council ask Borough Solicitor Daniel H. Long to review Borough Code § 265-5 and render an opinion on whether or not it is preempted by the New Jersey Criminal Code.
In response to a recent OPRA request, I have received seven complaint summons forms (on-line here) showing that Runnemede police are actively enforcing Code § 265-5.
Code § 265-5 states:
No person shall, in any public place in the Borough of Runnemede, make, aid or assist in making any improper noise, riot, disturbance or breach of the peace, nor behave in a disorderly manner, nor make use of obscene or profane language.
In State v. Paserchia, 356 N.J. Super. 461 (App.Div. 2003), the New Jersey Superior Court, Appellate Division, examined a similar West Orange code provision that read
No person shall disturb, by any violent, abusive, loud or threatening language, or disorderly or indecent behavior of any kind, any lawful congregation or assembly of any kind or description in any place or building within the Township.
and found that the West Orange ordinance was invalid because it was preempted by a state statute--N.J.S.A. N.J.S.A. 2C:33–2 (Disorderly Conduct). The court found that "an examination of Chapter 33 of the Code reveals a policy to comprehensively address street behavior and other conduct in public places which may disturb citizens and disrupt peaceful society." The New Jersey Legislature's decision to comprehensively address "street behavior" in Chapter 33 preempts any municipal ordinances that attempt to regulate the same conduct.
Runnemede's Code § 265-5, like the West Orange code provision at issue in Paserchia, prescribes a "lesser standard of culpability . . . due to the omission of purposeful conduct as required by [the Disorderly Conduct statute]." This means that in order to convict a person under the Disorderly Conduct statute, the state would have to prove that the defendant acted purposefully while a conviction under Code § 265-5 would not require the state to prove purposefulness. To this distinction, the Paserchia court opined that "the requirement of purposeful conduct may have been included by the Legislature in recognition of the difficult constitutional problems posed by prohibitions against offensive speech. Whatever the reason, purposeful conduct is an integral part of the Code's prohibition against disorderly conduct and N.J.S.A. 2C:33–2 overrides any local ordinance that addresses the same subject matter" (citations omitted).
I believe that it's clear that Code § 265-5 is preempted and that Runnemede police officers are presently enforcing it. If Mr. Long comes to the same conclusion, I ask that the Mayor and Council please repeal Code § 265-5 together with any other parts of the Peace and Good chapter that might also be invalid. If Mr. Long disagrees, I would appreciate being informed of his opinion.
Would you please put this matter on the August 30, 2022 Caucus meeting agenda or, if this e-mail is too late, the September 6, 2022 Council meeting agenda?
Thank you very much for your attention to this matter. I look forward to hearing from you.
cc. Attorney Daniel H. Long (via e-mail)
Clerk Pinto (via e-mail)
John Paff
In response to my question as to whether or not this issue had been taken up by the town council:
From: Daniel H. Long
Sent: Monday, September 26, 2022 11:01 AM
Subject::RE: Runnemede Police Department's enforcement of a preempted ordinance
Mr. Paff:
It was last month and will be tomorrow morning. I have drafted an Ordinance repealing Section 265-5 referenced below that will be discussed tomorrow night and is set for first reading at the Council Meeting to be held on October 4th. I will keep you posted as the Ordinance progresses, but I do expect it to be enacted.
Daniel H. Long, Esquire
Wade, Long, Wood & Long, LLC