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Legal Q & A



Matthew Weng
Matthew Weng
League Staff Attorney

Loitering and Non-partisan Elections

Q I'm a councilperson in a small town. We’ve had a loitering statute on our books for some time, but I’ve heard recently that this may be unenforceable. Is this true? Doesn’t N.J.S.A. 40:48-1 give towns the ability to pass ordinances outlawing loitering?

A N.J.S.A. 40:48-1 does indeed give towns the ability to pass anti-loitering ordinances. Specifically, it states: “The governing body of every municipality may make, amend, repeal and enforce ordinances to…prevent loitering, lounging or sleeping in the streets, parks or public places…”

This does not end the inquiry however. In the late 1970’s, the state legislature amended the code of criminal justice, found at N.J.S.A. 2C-1 et seq. The code did not include any law against loitering.

Several towns, including Newark, still had municipal loitering ordinances. There ordinances were challenged in State v. Crawley, 90 N.J. 241 (1982). In that case, 4 different men were charged with being in violation of the Newark municipal loitering ordinance. The men challenged their convictions, arguing that the Code of Criminal Justice did not include loitering as a criminal offense, and such an act constituted preemption by exclusion.

The New Jersey Supreme Court agreed, stating that the Code of Criminal Justice was written in part to create a comprehensive statutory scheme delineating what was criminal and what was not. The Court went on to say that, despite the grant of power found in N.J.S.A. 40:48-1, “municipalities may not enact ordinances on matters otherwise competent for local legislation if the State has preempted the field.” The last paragraph of Crawley states: “The exclusion of a loitering provision from the Code [of Criminal Justice] expresses a state policy not to penalize such conduct.”

In another case discussing Crawley, the Appellate Division stated: “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.” G.H. v. Township of Galloway, 199 N.J. 135 (2008).

Crawley makes clear that, even though N.J.S.A. 40:48-1 puts loitering laws under the jurisdiction of municipalities, the Supreme Court has decided that such laws are unenforceable because of preemption by the State.

This does not, however, mean that municipalities are powerless in this regard. Laws against making loud noises late at night or public drunkenness are still enforceable, and still give municipalities a tool for keeping order.

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Q The Justice Department a few days ago voided a referendum in Kinston, NC in which voters chose to change their elections from partisan to non-partisan. My township has had non-partisan elections for decades and it seems to work well, even though most voters know council member’s party affiliation. Perhaps the only drawback is a slightly smaller turnout.

My question is, will, or could, this ruling have an impact on how township residents are allowed to vote? Will the ruling force the abrogation of the Faulkner Act?

A This decision by the Justice Department has no bearing whatsoever on New Jersey. In 1965, the Congress passed and President Lyndon Johnson signed the Voting Rights Act. In response to historical disenfranchisement of African-American voters, the Voting Rights Act prevents states from imposing any “voting qualification or prerequisite to voting, or standard, practice, or procedure ... to deny or abridge the right of any citizen of the United States to vote on account of race or color.”

The Voting Rights Act also identified certain voting districts that had a history of discriminatory voting laws. In the future, such districts would be required to obtain the approval of the Civil Rights Division in the Justice Department before making any change whatsoever to their voting laws, rules, or procedures.

Kinston, North Carolina is covered under the 1965 Voting Rights Act, which is why they were required to obtain approval from the Justice Department.

New Jersey is not covered by the Voting Rights Act, and is not required to obtain approval from the Justice Department. Further, the determination of the Justice Department is not a judicial determination, is not considered precedent, and is not binding on state or federal judges in New Jersey. This decision will have no impact at all on residents of New Jersey, and have no impact on the Faulkner Act

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

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