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Open Government Advocacy Project:
Media Advisory: Somerville asked to repeal invalid ordinance still being "enforced" by Borough officials

Issue Detail:

On June 9, 2010, the New Jersey Libertarian Party formally requested Mayor Brian Gallagher and the Somerville Borough Council to repeal several invalid provisions from the Borough Code. This request was made after the Somerset County Prosecutor's Office agreed, based on the Libertarians' December 22, 2009 complaint against the Borough, that municipal prosecutors in the county needed to be reminded that they are not permitted to downgrade statutory charges to violations of invalid municipal ordinances. After investigating the records of the Somerville Municipal Court, the Libertarians found that the Borough Prosecutor was improperly allowing defendants charged with offenses such as assault to plead guilty to an invalid Borough ordinance. That ordinance, enacted in 1966, makes it unlawful to "assemble in the streets, public places or public halls of the Borough of Somerville, or be upon the streets, sidewalks, steps or platforms of any store, business house, park, church or railroad station, bus or other conveyance or within or around any building, dwelling house, office, place of business, factory or private or public place within said borough, behaving in a disorderly manner by noisy, rude or indecent behavior, by using profane, vulgar or indecent language, by making insulting remarks or comments to others, by begging for alms, by fighting, by unnecessary congregating in groups upon any street, sidewalk, railroad station or other public place to the obstruction thereof or to the annoyance of other persons lawfully there being, or by unnecessarily doing or performing any other disorderly thing whatsoever that shall disturb the peace or quiet of any family, neighborhood or any of the inhabitants of the borough." Although it was rendered inoperable when New Jersey passed its uniform Criminal Code in 1979, Somerville never repealed it. In their complaint to the Prosecutor, the Libertarians argued that downgrading assault charges was "particularly repugnant because such dispositions potentially allow violent offenders to escape accountability for their actions." The Libertarians noted that under the law, first offenders of the assault statute are afforded a “presumption of non-incarceration” while repeat offenders do not benefit from that presumption and are more likely to go to jail. Allowing assault defendants to plead guilty to an invalid ordinance, the Libertarians argued, prevents those who are actually guilty of assault from being identified in the state’s database as previous offenders. "These plea bargains subvert the state's criminal justice system and that's why Attorney General Verniero outlawed them in 1998," said John Paff, Chairman of the Libertarian Party's Preempted Ordinance Repeal Project. Prosecutors like these downgrades because everybody pleads guilty saving them from having to conduct time consuming trials. The defendants like these downgrades too because they can pay a couple hundred in fines and not face incarceration or be saddled with a criminal record. And, the towns like the downgrades as well because the fines are an easy and lucrative source of revenue." "Maintaining the integrity of the criminal justice system," Paff said, "is far more important than the municipal prosecutor's administrative convenience and the Borough's interest in collecting revenue." The Libertarian Party's repeal request, its complaint to the Somerset County Prosecutor and the Prosecutor's response are on-line here. For more information on the Libertarian Party's Preempted Ordinance Repeal Project, click here. http://www.lpcnj.org/OGTF/Loiter.html




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