Tuesday, August 26, 2014

My letter challenging the Manville juvenile curfew ordinance

Update: More documents regarding NJ juvenile curfew ordinances:

1. ACLU's lawsuit against Wanaque.
2. ACLU's brief in support of its lawsuit.
3. ACLU's opposition to Wanaque's Motion to Dismiss (part 1 and part 2)
4. Newspaper article regarding Wanaque's settlement with the ACLU.
5. Bill showing that Egg Harbor Township paid curfew challenger's attorney $10,000 in legal fees.
6. Settlement showing Wanaque paid $55,000 in attorney fees regarding the ACLU challenge.

-------------------------------------------------------------------------------------------------
August 26, 2014

Councilman Richard Onderko
Borough of Manville
325 North Main St
Manville, NJ  08835

Dear Richard:

I stopped by Borough Hall today and received, via OPRA, three versions of Manville's juvenile curfew ordinance.  The three versions, from 1931, 1953 and 1981, are all on-line here.  I'm concerned that none of the ordinances are constitutional and that if the Borough is enforcing its juvenile curfew proscription, a person against whom enforcement is sought may have a viable lawsuit for a constitutional rights violation.

Using the 1981 version as an example, no person under 18 years of age may be in public between 10 p.m. and 6 a.m.  The ordinances exempts minors who are accompanied by their parents or legal guardian, running an emergency errand at the behest of a parent or guardian or going back and forth between home, work, school or a sanctioned event.  Violation of the ordinance subjects both the minor and his parent or guardian to fines and possible incarceration.

On-line here is an April 3, 2012 preliminary decision by the Hon. William C. Todd, III, Presiding Judge of the New Jersey Superior Court, Atlantic County Chancery Division in the case of K.D. and C.D. etc, v. Egg Harbor Township, Docket No. ATL-C-19-12.  At issue in that case was the constitutionality of Egg Harbor Township's juvenile curfew ordinance.

Judge Todd found that he was "bound to follow the decision" in Betancourt v. Town of West New York, 338 N.J.Super. 415 (App. Div. 2001) which requires municipal juvenile curfew ordinances to be "'broad enough to to recognize the right of parents to permit their children to participate in many legitimate activities' including participating in sporting events, going to the movies or simply visiting friends or relatives."  As Judge Todd observed, Egg Harbor Township's ordinance was unconstitutional because
a parent would not appear to have the authority to simply permit his or her child to go to the movies or to visit with friends unaccompanied after 10:00 p.m.
Manville's juvenile curfew ordinances suffer from the same problem as Egg Harbor's and West New York's. And, while a trial level opinion from another county is not binding on a Somerset County court, the Appellate Division's published opinion in Betancourt is binding.  Thus, it appears to me that if a minor who had permission from his or her parent to be in public after 10 p.m. might have a viable claim under the federal and state constitutions if he or she was charged with violating the curfew ordinance by a Borough police officer.

On-line here is an interim order that Judge Todd entered on April 12, 2012.  I invite your attention to the third numbered paragraph in the order where Judge Todd strongly suggests that the plaintiff's attorney is entitled to recover his attorney's fees and costs from Egg Harbor Township.  I point this out because if Manville were to be sued by a person against whom the curfew ordinance was enforced, it is possible, even likely, that Manville taxpayers would have to pay for the attorney fees generated on both sides of the litigation.

In my view, I believe that the wisest course of action would be for the police to immediately suspend enforcement of the ordinances pending a review by the Borough Attorney and a discussion at the Council's September 8, 2014 meeting.

Thank you for your attention to this matter.

Very truly yours,

John Paff, Chairman
New Jersey Libertarian Party's
Preempted Ordinance Project
P.O. Box 5424
Somerset, NJ  08875
Phone 732-873-1251
e-mail: paff@pobox.com