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William G. Dressel Jr, Executive Director - Michael J. Darcey, CAE, Asst Executive Director

Legal Q & A

 

Municipal Solicitation
Ordinances and
Domestic Partnership Law



Deborah M. Kole
League Staff Attorney

Q We are rewriting our municipality's solicitation ordinance to comply with current law on the subject. We are aware 2002 Watchtower case decided by the United States Supreme Court, but that case left undecided whether municipalities may require permits for commercial or nonprofit contribution solicitation. Has there been any further case law on this subject? Also, are solicitation curfews and no solicitation lists or signs allowed?

A On March 16, 2004, the United States District Court, District of New Jersey, handed down a decision clarifying some of these questions for New Jersey municipalities. In New Jersey Environmental Federation v. Wayne Township, Civ. No. 01-1586, the court appeared to close one apparent "loophole" in the dicta of the Watchtower case, while tacitly approving another. In Watchtower Bible and Tract Soc. of New York, Inc.,v. Village of Stratton, 536U.S. 150 (2002), the court left open the question of whether a municipality could require commercial solicitors or those soliciting donations for nonprofit groups to obtain permits before soliciting. In the New Jersey Environmental Federation case, the court struck down an ordinance that required permits for those nonprofits that sought donations when going door to door. The opinion stated that soliciting contributions was a form of protected speech for these nonprofits, and requiring permits only of those nonprofit canvassers who solicited funds was an impermissible regulation of the content of free speech and violated the First Amendment. The nonprofit canvassers whose message included a request for funds were being regulated through the permitting process, while other nonprofit canvassers were not. By treating these groups differently, the ordinance regulated the content of speech.

The court left in place the permitting requirement for commercial solicitors. Of course, the question of the validity of the section concerning commercial solicitation was not directly before the court, since the plaintiff was a nonprofit, but the implication is that such provisions may be constitutional.

The ordinance also had a provision for a curfew that only applied to solicitors and canvassers who were required under the ordinance to obtain permits (which, as previously noted,

 

 

included only commercial solicitors and nonprofits soliciting funds). Those holding solicitation permits could go door-to-door only between 10 a.m. and one half hour after dusk. Political campaigners and nonprofits not asking for donations were subject to no curfew. The court found no valid governmental interest served by applying this curfew to nonprofit fundraisers but not to other nonprofits or political campaigners. Neither public safety concerns nor the protection of the residents' right to privacy were served by treating these two groups differently, and therefore the First Amendment required that the curfew provision be invalidated as well.

In discussing the right to privacy issue, the court implicitly accepted the validity of defendant Wayne's "do not solicit" list and its ordinance allowing "No Solicitation" signs on private property. The court stated that these portions of the local code protected the public's right to privacy sufficiently. Therefore, it appears that these methods of dealing with door-to-door solicitation are still available to municipalities in New Jersey.

Q Title 37 of the New Jersey Statutes allows mayors and some other officials to perform marriages in the state. Now that New Jersey has a domestic partnerships law, can mayors perform ceremonies to solemnize these new partnerships as well?

A Mayors can certainly perform such ceremonies if they choose to, but the ceremonies will have no legal effect. Unlike marriage licenses, which merely give a couple the right to marry, but do not create a legal relationship until a valid ceremony is performed, the issuance of a certificate of domestic partnership actually creates the legal domestic partnership relationship. Thus, no ceremony is necessary, and the performance of the ceremony will not enhance the legal rights and/or obligations of the partners in any way. However, if the partners wish to have a ceremony for other than legal reasons, and the mayor wishes to perform it, there is no legal prohibition of such a ceremony

This column is for informational purposes only, and is not intended as legal advice.


 

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