Is the South Orange municipal court a serious judicial body or the "Let's Make a Deal" game show?

Like many municipal courts across New Jersey, the South Orange court routinely "downgrades" statutory offenses to violations of an invalid municipal ordinance.  Even though these deals are prohibited by an Attorney General directive, the South Orange courts continue to make them.

Following is my letter to the Essex County Prosecutor's Office asking for them to put a stop to this improper and repugnant practice.

John Paff, ChairmanNew Jersey Libertarian Party
Preempted Ordinance Repeal Project
P.O. Box 5424
Somerset, NJ 08875-5424
Phone: 732-873-1251- Fax: 908-325-0129
E-mail: paff@pobox.com

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October 15, 2012

John F. Russell, Esq.
Essex County Prosecutor's Office
50 W Market
Newark, NJ 07102 (via e-mail only to john.russell@njecpo.org)

RE: Complaint against South Orange Municipal Prosecutors

Dear Mr. Russell:

I write, both individually and in my capacity as Chairman of the New Jersey Libertarian Party’s Preempted Ordinance Repeal Project, to complain that the municipal prosecutors at the South Orange Municipal Court are violating a November 18, 1998 Directive by former Attorney General Peter Verniero.

I bring this matter to your attention because the County Prosecutor's office has supervisory authority over municipal prosecutors and may, in the public interest, intervene or supersede them. N.J.S.A. 2B:12-27 and 2B:25-7. If you do not personally oversee municipal prosecutors, please forward this correspondence to the correct person and notify of me of that person’s identity.

The Attorney General’s Directive, in essence, disallows a municipal prosecutor from agreeing to a plea bargain that allows a defendant charged with a statutory offense to plead down to a municipal ordinance violation unless a) the municipal ordinance is clearly not preempted by state law and b) there is a factual nexus between the conduct charged and that which is proscribed by the ordinance.

South Orange has an ordinance in its code entitled “§113-5. Loud or offensive noise; abusive language and behavior.” That ordinance states:

§113-5. Loud or offensive noise; abusive language and behavior.

No person shall make, aid or assist in making any unseemly, loud or offensive noise or use any loud, offensive, disorderly, threatening or abusive language or behave in any offensive, disorderly, threatening or abusive manner in any public, quasi-public or private place within the village.

§113-5 is the South Orange Prosecutors’ “go to” ordinance to which all manner of statutory violations—from trying to sell fake silver coins to threatening someone with a knife—are downgraded. As will be argued in more detail below, these downgrades allow offenders—sometime violent offenders—to avoid a criminal record in exchange for pleading guilty and paying hundreds of dollars in fines and costs to the municipality. This deal-making undoubtedly gives the public the perception that the South Orange Municipal Court is more akin to the "Let's Make a Deal" game show than a serious judicial entity.

Available for download here are eight Complaint-Summons that were all recently downgraded to §113-5. As you can see, State v. McArdle, No. S-2012-000057 charged the defendant with putting his victim in "imminent fear of death [by] pointing a knife at the victim's chest."  The front of the summons shows that your office permitted the matter to be downgraded to simple assault and the back of the summons shows that McArdle was allowed to plead guilty to §113-5 and pay $230 in fines and costs.

As another example, the defendant in State v. Martinez, No. S-2012-000107 was charged with forcing a door and breaking into a residence.  He was charged with three statutory offenses, two of which were dismissed while the third one resulted in a plea to §113-5 with $283 in fines and costs to the court and $565 restitution to the victim.

Allowing Title 2C charges to be downgraded to this code provision violates the Directive. It should be evident that §113-5 is preempted by the New Jersey Criminal Code. Indeed, South Orange’s Code §113-5 is substantially similar to the West Orange Code provision that was held to be preempted in State v. Paserchia, 356 N.J. Super. 461 (App.Div.2003).

West Orange Ordinance §4-12.3 provides:

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, if South Orange's municipal prosecutors weren't sure whether or not §113-5 was preempted and invalid, the Directive still required them to “discuss the matter with the County Prosecutor’s Office or . . . the Division of Criminal Justice.” The municipal prosecutors are not permitted to “simply ignore this obligation.” Directive, page 2.

Finally, there is no factual nexus between shoplifting, for example, which was charged in State v. Hart, and the abusive language or behavior proscribed by §113-5.

The Directive limits municipal prosecutors to three options when dealing with a defendant charged with a statutory disorderly persons or petty disorderly persons offense: a) try the defendant on the charge, b) dismiss the charge outright or c) downgrade the charge to lesser statutory offense or to a violation of a municipal code provision that is not superseded and for which a factual nexus exists. (It is unlikely, however, that such valid code provisions exist. See, New Jersey Law Journal, "Yet Another Municipal Ordinance Is Struck Down on Pre-emption Grounds" January 13, 2003, by Mary P. Gallagher.)  The South Orange prosecutors' practice of pleading statutory offenses down to §113-5 is not among the options.

It is particularly distasteful when municipal prosecutors allow a violent offense, such as that alleged in State v. McArdle, to be downgraded to a municipal ordinance violation.  This is because people who are convicted of a statutory charge enjoy a “presumption of nonincarceration” only if it is a first offense. If, however, a person commits his or her second, third or greater offense, the presumption is no longer available and the defendant would more likely face incarceration. N.J.S.A. 2C:44-1(e) and State v. LeSane, 227 N.J. Super. 276 (Law Div.1987).  This is what the Legislature intended. First offenders should receive leniency while those who continue to offend should receive progressively harsher punishments.

Yet, when prosecutors allow defendants to plead down to a municipal ordinance offense, offenders never receive their "first strike" and continually remain on first-offense status.  This undermines the Legislature's plan of progressive punishment by never exposing repeat offenders to anything but a continuous “presumption of nonincarceration.”

It is understandable why municipal prosecutors would resort to downgrading statutory charges to §113-5 violations. The defendants are probably happy to pay a fine and costs in exchange for not having their convictions recorded in the State Bureau of Identification's criminal history record database. This way they don't suffer any legal disability when they apply for a position that requires a criminal history check.

The defendants are probably also pleased to not have to pay the Violent Crime Compensation Board Fund and Safe Neighborhood Fund assessments that they would have to pay if they were convicted of a statutory offense.  Of course, this deprives these programs of funds that they can use, for example, to compensate the victims of violent crimes.

And, the defendants’ willingness, perhaps eagerness, to accept such pleas also reduces the frequency of time-consuming trials, thus minimizing the prosecutorial work load and the length of the court sessions.

Finally, the fines and costs paid by these compliant and agreeable defendants constitute an easy and lucrative revenue stream for the municipality.

Maintaining the integrity of the criminal justice system, however, is a far more important goal than the municipal court’s administrative convenience. Accordingly, I call upon you to give effect to Attorney General Verniero’s Directive by instructing to South Orange prosecutors to cease their practice of allowing guilty pleas to Code §113-5 or other superseded provisions of the municipality’s Code.

Will you please take some action to prevent South Orange from downgrading statutory offenses to invalid municipal code provisions?

Thank you for your attention to this matter. I look forward to hearing from you.

Sincerely,

New Jersey Libertarian Party
Preempted Ordinance Repeal Project
John Paff, Chairman
P.O. Box 5424
Somerset, NJ 08875-5424
Phone: 732-873-1251- Fax: 908-325-0129
E-mail: paff@pobox.com

cc.

Mayor and Council, municipality of South Orange (via e-mail to rkline@southorange.org)

Hon. Clarence Barry-Austin, Chief Judge (via e-mail to barryaustin@verizon.net)

Drew J. Bauman, Esq., South Orange Prosecutor, via e-mail to drewj.bauman@verizon.net)