The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1681-23
A-1896-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
STEPHANIE TASIN,
Defendant-Appellant.
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TERRI BAIRD,
Defendant-Appellant.
Argued October 17, 2024 – Decided December 5, 2024
Before Judges DeAlmeida and Puglisi.
On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Municipal Appeal Nos. 23-
004 and 23-006.
Isabelle R. Strauss argued the cause for appellants.
Gregory F. Kotchick argued the cause for respondent
(Durkin & Durkin, LLC, attorneys; Gregory F.
Kotchick, of counsel and on the briefs).
PER CURIAM
In these companion cases, calendared back-to-back and consolidated for
purposes of this opinion, defendants Stephanie Tasin and Terri Baird appeal
from Law Division orders convicting them after a trial de novo of violations of
three provisions of the East Hanover Township Municipal Code (Municipal
Code) for their actions relating to stray cats. We reverse.
I.
The following facts were found by the municipal court after trial.
A. Stephanie Tasin.
On September 14, 2021, at approximately 6:15 a.m., Carlo DiLizia, the
Director of the East Hanover Township Health Department, was conducting
surveillance in the Hanover Park Condominium development in response to
complaints of stray cats. He observed Tasin exit a minivan and remove cat food
from the rear of the vehicle. DiLizia saw Tasin put the cat food on cardboard
A-1681-23
2
trays, which she placed throughout the public parking lot of the development.
He observed approximately five stray cats gather and eat the food.
Tasin approached DiLizia and stated she was allowed to be in the area.
DiLizia advised Tasin she was not permitted to feed stray cats in a public parking
lot. After approximately ten to fifteen minutes, the cats finished eating . Tasin
picked up the cardboard trays, placed them in her vehicle, and drove away.
DiLizia issued five summonses to Tasin, alleging violation of the
following provisions of the Municipal Code:
(1) Section 173-24(A) ("No person owning, keeping or harboring any
animal shall suffer or permit it to run at large upon the public streets or . . . in
any other public place within the township.");
(2) Section 173-27 ("No person who shall own, keep or harbor an
animal shall abandon such animal within the township.");
(3) Section 201-2(A) ("No person shall create, commit or maintain, or
allow to be created, committed or maintained, any nuisance within the Township
of East Hanover . . . .");
(4) Section 201-2(C) ("No person shall, within the Township of East
Hanover, sweep, throw, place or otherwise deposit in or upon any sidewalk . . .
A-1681-23
3
parking area or other public place any dirt, rubbish, paper, garbage . . . or refuse
of any kind . . . .");
(5) Section 201-2(D) ("No person shall throw, deposit or otherwise
place upon any sidewalk . . . or other public place used for pedestrian travel any
. . . substance which, when stepped upon, is liable to cause or does cause any
person to slip or fall."). 1
Tasin moved to dismiss the summonses prior to trial. She argued the
ordinances under which the summonses were issued expired in 2004. In that
year, the township adopted Section 44-1 of the Municipal Code, which abolished
the Board of Health and replaced it with a Department of Health. According to
Section 44-1(B):
Chapters 173 through 213 inclusive, of the [Municipal
Code], as heretofore adopted by the Board of Health,
are hereby readopted for a period not to exceed 120
days to allow the same to be amended, revised and
supplemented to reflect the change in status of the
public health agency.
(1) During the one-hundred-twenty-day period set
forth above, the chapters designated shall remain in full
force and effect; provided, however, that where the
phrase "Board of Health" appears in the text, it shall be
read to mean the "Health Officer" or "the Township" as
appropriate to the context.
1
A sixth summons issued to Tasin was dismissed prior to trial.
A-1681-23
4
Sections 173-24(A), 173-27, 201-2(A), 201-2(C), and 201-2(D), under
which Tasin was charged, were not readopted during the 120-day period
established in Section 44-1. Thus, Tasin argued, those provisions expired,
negating the summonses.
The municipal court issued an oral opinion denying the motion. The court
found the purpose of Section 44-1(B) was to establish a 120-day period during
which the municipality could delete or revise any reference to the Board of
Health to reflect the establishment of the Department of Health and not to allow
for the expiration of substantive provisions of the Municipal Code.
In a separate pretrial motion, Tasin argued Section 201-2(A) is facially
unconstitutional due to vagueness because it does not sufficiently define a
nuisance. The State opposed the motion, noting that Section 201-2(B) lists
numerous examples of a nuisance, including "[d]epositing, maintaining or
permitting the maintenance or accumulation of any . . . matter, material,
substance or thing which serves as food for insects or rodents and to which they
may have access . . . ." Section 201-2(B)(7).
Tasin also argued the penalties authorized by the Municipal Code for the
charges against her exceed those authorized in N.J.S.A. 26:3-70, requiring
dismissal of the summonses. The statute provides that a local Board of Health
A-1681-23
5
"may prescribe a penalty for the violation of any provision of a health ordinance
or code. Such penalty shall not be more than $500.00 nor less than $5.00."
N.J.S.A. 26:3-70.
Section 201-7 of the Municipal Code provides: "Any person who violates
or neglects to comply with any provision of this chapter . . . shall, upon
conviction, be subject to the penalties provided in § 164-14 of Chapter 164,
General Provisions, Board of Health." In addition, Section 173-30.2(A)
provides that "[a]ny person who violates . . . [§] 173-27 . . . shall, upon
conviction, be subject to the penalties provided in § 164-14 . . . ." Section 164-
14 provides:
Unless a specific penalty is provided elsewhere in Part
III of this Code, in state law or in other ordinances of
the Board of Health for a particular violation, any
person . . . who shall violate any provision of Part III of
this Code . . . by doing any act prohibited or declared
to be unlawful or a violation thereby . . . shall, upon
conviction thereof, be punishable by a fine of not less
than $100 nor more than $1,000 for each violation.
Thus, under four of the summonses, Tasin faced fines of not less than $100 nor
more than $1,000 for each violation. These penalties exceed those authorized
in N.J.S.A. 26:3-70.
With respect to the fifth summons, Section 173-30.2(B) provides that
"[a]ny person who violates the provisions of . . . [§] 173-24 . . . shall, upon
A-1681-23
6
conviction thereof, be punished by a fine for each violation of not less than $25
up to $2,500 or by imprisonment for a term not exceeding 10 days; or both."
These penalties also exceed those authorized in N.J.S.A. 26:3-70.
The municipal court issued an oral opinion denying the motion. The court
concluded Section 201-2(A), and the examples of nuisances set forth in Section
201-2(B), are sufficiently clear and unambiguous to put Tasin on notice of
actions constituting a nuisance. In addition, the court concluded the purported
invalidity of the penalty provisions does not render the remainder of the
Municipal Code provisions invalid.
At trial, DiLizia recounted his observations of Tasin on September 14,
2021. After the State closed its case, Tasin moved for a judgment of acquittal
regarding the alleged violation of Section 173-27. She argued the State failed
to produce any evidence that she owned, kept, or harbored the cats on September
14, 2021 and, therefore, could not be found beyond a reasonable doubt to have
abandoned those cats. She noted the record contained no testimony that she
brought any cats to the development and argued she could not abandon an animal
if she never caused the animal to be at the alleged place of abandonment.
The municipal court denied the motion in an oral decision. The court
found the State produced sufficient evidence of "a harboring event" and of
A-1681-23
7
Tasin's leaving "the scene without retrieving the cats that she was harboring" to
survive a motion for acquittal.
Theodore Tucker, who served as property manager of the development
from 1998 to 2020, testified in defendant's case-in-chief. He stated that in 2008
he requested Tasin conduct a capture, spay, and return program for a large
number of stray cats that were congregating at the development. According to
Tucker, from 2008 to 2020, Tasin took numerous steps to reduce the stray cat
population at the development, including arranging for the adoption of cats and
paying for the spaying of cats to prevent future breeding. He testified that
because of Tasin's efforts the number of stray cats at the development was
reduced from approximately thirty cats to approximately three cats.
The municipal court issued an oral opinion convicting Tasin of all the
charges. The court found:
I believe [Tasin] did violate all of these ordinances.
She had, by harboring these cats, and she did harbor
them, because she provided . . . care and a premise[s]
where the cats can return, on a regular basis, for
comfort and food. But she had no business doing that.
And she had no right to do that. She was not statutorily
bound to do that.
So, I'm satisfied that the State has sustained its burden
of proof on all of these five summonses.
A-1681-23
8
For Tasin's violation of Section 173-24(A), the municipal court imposed
a $2,500 fine and court costs of $33. The court merged the remaining
convictions into the conviction for Section 173-24(A).
B. Terri Baird.
On September 15, 2021, Kathy Nguyen, a registered environmental health
specialist employed by East Hanover, was traveling on Murray Road in the
township. She noticed two stray cats on the sidewalk. Nguyen parked her car
and exited the vehicle. As she approached the cats, they scattered. Nguyen
noticed a trap was situated partially on the public sidewalk. The trap's front
door was tied open and a tray of cat food was at its opening. She also saw
containers and piles of cat food on the sidewalk near the trap.
Nguyen testified the trap was improperly set because the door was
prevented from closing when the trap was tripped. It could not, therefore,
operate as a trap. In addition, to operate the trap appropriately, food is placed
at the rear of the inside of the device, so that an animal will be caught inside
when the front door closes. Nguyen testified that plastic was wrapped around
the trap, effectively providing any animals in the trap with protection from
inclement weather. Nguyen noticed a label on the trap that had written on it:
A-1681-23
9
"Trapping momma cat and kittens. Please call Terri" followed by a cellphone
number.
After she returned to her office, Nguyen, who was responsible for
responding to open public records requests submitted to the Department of
Health, noticed one such request. The request listed Baird's full name as the
requestor and noted the same cellphone number that was on the note attached to
the trap.
On September 17, 2021, Baird appeared at East Hanover township hall
requesting the return of a trap belonging to her that had been removed from
Murray Road. Nguyen informed Baird that she did not remove the trap and was
not in possession of the device.
Nguyen issued five summonses to Baird, alleging violation of: Sections
173-24(A), 173-27, 201-2(A), 201-2(C), and 201-2(D) of the Municipal Code.2
Baird, who was represented by the same counsel as Tasin, filed a pretrial
motion raising the same arguments concerning the expiration of the relevant
provisions of the Municipal Code, vagueness, and unauthorized penalties. The
municipal court denied the motions for the same reasons it denied Tasin's
2
A sixth summons issued to Baird was dismissed prior to trial.
A-1681-23
10
motions, except the court also concluded that "there is some independence on
the part of the city to impose fines in excess of that statutory requirement."
Nguyen testified at trial, recounting her observations on September 15,
2021. During cross-examination, she admitted she did not see Baird place the
trap, cat food, and containers on Murray Road. She also conceded the trap was
placed under a guardrail and was only partially on the sidewalk.
The municipal court issued an oral decision finding Baird not guilty of
violating Sections 201-2(C) and 201-2(D). The court found the State did not
prove beyond a reasonable doubt that Baird placed cat food on the sidewalk.
The court, however, found Baird guilty of the remaining charges. The
court found the State proved beyond a reasonable doubt that Baird placed the
trap in a public area and that it was her intent to harbor cats in the trap, which
the court found was "really . . . a haven for stray cats."
For violation of Section 173-24(A), the court imposed a $2,500 fine and
court costs of $33. For violation of Section 173-27, the court imposed a $1,000
fine and court costs of $33 concurrent to the fine imposed for violation of
Section 173-24(A). For violation of Section 201-2(A), the court imposed a
$2,500 fine and court costs of $33 concurrent to the fine imposed for violation
of Section 173-24(A).
A-1681-23
11
Defendants appealed their convictions to the Law Division. They raised
the same pretrial arguments made to the municipal court. In addition, they
argued the State had not proven beyond a reasonable doubt that they violated
any of the charged provisions of the Municipal Code.
On January 17, 2024, the Law Division issued a written opinion finding
Tasin guilty of violating Sections 173-24(A), 173-27, and 201-2(A). The court
explained that it
finds [Tasin] harbored the stray cats by regularly
feeding them and caring for them. Further, [Tasin]
permitted the stray cats to run at large after she [was]
done feeding them. [Tasin's] conduct took place in a
public area. This court finds leaving the stray cats on
the street and driving off is a form of abandonment.
The court, however, found the State had not proven beyond a reasonable
doubt that Tasin violated Sections 201-2(C) and 201-2(D). The court found:
On September 14, 2021[, Tasin] was seen feeding the
cats then picking up the remaining food and driving off
leaving the cats behind. However, [Tasin] did not
deposit any garbage or litter in the public area. While
[Tasin] placed cardboard boxes on the sidewalk with
food, she did pick up the cardboard fifteen minutes later
and left nothing behind. This court finds that [Tasin]
did not deposit any food or substance that would cause
a person to fall. There was no evidence or testimony
that [Tasin] left anything behind when she drove away.
Accordingly, this court does not find that [Tasin]
deposited any garbage or food or substance in the
public area.
A-1681-23
12
The court, therefore, acquitted Tasin of those charges.
The court merged two of the convictions into the conviction for violating
Section 173-24(A) and imposed a fine of $1,500 and $33 in court costs.
Although the court summarized defendant's arguments regarding expiration of
the relevant provisions of the Municipal Code, vagueness, and unauthorized
penalties, it did not issue an opinion on any of those issues.
On January 23, 2024, the Law Division issued a written opinion finding
Baird guilty of violating Sections 173-24(A), 173-27, and 201-2(A). The court
explained that
the State has provided sufficient evidence to link the
trap placed on Murray [Road] to [Baird]. The State has
proven beyond a reasonable doubt that [Baird] placed
the trap on Murray [Road]. This court further finds
[Baird] was harboring stray cats in the Township by
placing a trap with plastic wrap around it and tying the
door open. [Baird's] conduct took place in a public
area. This court finds that altering the trap to not
capture the cats and allowing them to run at large is a
form of abandonment.
The court merged two of the convictions into the conviction for violating Section
173-24(A) and imposed a fine of $1,500 and $33 in court costs.
These appeals followed. Tasin raises the following arguments:
A-1681-23
13
POINT I
EACH OF THE FIVE SUMMONSES THE
CONVICTIONS OF WHICH FORM THE BASIS OF
THIS APPEAL ALLEGE A VIOLATION OF EITHER
CHAPTER 173 OR CHAPTER 201 OF THE CODE OF
THE TOWNSHIP OF EAST HANOVER [THAT]
CEASED TO BE VIABLE DUE TO THE SUNSET
PROVISION CONTAINED IN CHAPTER 44 OF THE
CODE.
POINT II
[THE] SUMMONSE[S] . . . EACH CHARGE[] A
VIOLATION OF AN EAST HANOVER BOARD OF
HEALTH ORDINANCE WHICH CONTAINS A
PENALTY PROVISION WHICH IS VOID[,]
RENDERING THE ORDINANCE
UNENFORCEABLE.
POINT III
A PERSON OF REASONABLE INTELLIGENCE
WOULD NOT KNOW THAT SPAYING/
NEUTERING AND PROVIDING DAILY FEEDING
OF COLONY CATS CONSTITUTES CRIMINAL
ABANDONMENT.
POINT IV
A PERSON OF REASONABLE INTELLIGENCE
WOULD NOT KNOW THAT SPAYING/
NEUTERING AND REDUCING THE POPULATION
OF FERAL (COMMUNITY) CATS ON
CONDOMINIUM PROPERTY AT THE BEHEST OF
THE CONDOMINIUM BOARD AND
MANAGEMENT VIOLATED AN ORDINANCE
A-1681-23
14
PROHIBITING ALLOWING CATS TO RUN AT
LARGE.
POINT V
[THE] SUMMONS[] . . . CHARGES A VIOLATION
OF EAST HANOVER CODE 201-2[(A),] THE
LANGUAGE OF WHICH HAS BEEN DECLARED
VOID FOR VAGUENESS.
Baird raises the following arguments:
POINT I
THE STATE FAILED TO PROVE THAT . . . BAIRD
PLACED A TRAP ON MURRAY ROAD – A
REQUIRED ELEMENT OF . . . EACH OF THE
VIOLATIONS OF WHICH THE COURT
CONVICTED HER.
POINT II
EACH OF THE FIVE SUMMONSES THE
CONVICTIONS OF WHICH FORM THE BASIS OF
THIS APPEAL ALLEGE A VIOLATION OF EITHER
CHAPTER 173 OR CHAPTER 201 OF THE CODE OF
THE TOWNSHIP OF EAST HANOVER [THAT]
CEASED TO BE VIABLE DUE TO THE SUNSET
PROVISION CONTAINED IN CHAPTER 44 OF THE
CODE.
POINT III
[THE] COMPLAINTS (SIC) . . . EACH CHARGE[] A
VIOLATION OF AN EAST HANOVER BOARD OF
HEALTH ORDINANCE WHICH CONTAINS A
PENALTY PROVISION WHICH IS VOID[,] THUS
A-1681-23
15
RENDERING THE ORDINANCE
UNENFORCEABLE.
POINT IV
[THE] SUMMONS . . . CHARGES A VIOLATION OF
EAST HANOVER CODE 201-2[(A),] THE
LANGUAGE OF WHICH HAS BEEN DECLARED
VOID FOR VAGUENESS.
POINT V
EAST HANOVER ORDINANCE[S] 173-24(A) AND
173-27 ARE VOID FOR VAGUENESS AS A
PERSON OF REASONABLE INTELLIGENCE
WOULD NOT FATHOM THAT TRAPPING,
FEEDING OR SHELTERING STRAY CATS
CONSTITUTES CRIMINAL ABANDONMENT OR
VIOLATES A LAW PROHIBITING THE
PERMITTING OF CATS TO ROAM AT LARGE.
II.
On appeal from a municipal court to the Law Division, the review of a
conviction is de novo on the record. R. 3:23-8(a)(2). The Law Division judge
must make independent findings of fact and conclusions of law but defers to the
municipal court's credibility findings. State v. Robertson, 228 N.J. 138, 147
(2017).
In our review of the Law Division's judgment, we do not, however,
independently assess the evidence. State v. Locurto, 157 N.J. 463, 471 (1999).
"Our standard of review of a de novo verdict after a municipal court trial is to
A-1681-23
16
determine whether the findings made could reasonably have been reached on
sufficient credible evidence present in the record, considering the proofs as a
whole." State v. Ebert, 377 N.J. Super. 1, 8 (App. Div. 2005) (internal
quotations marks and citation omitted). "[A]ppellate review of the factual and
credibility findings of the municipal court and the Law Division 'is exceedingly
narrow.'" State v. Reece, 222 N.J. 154, 167 (2015) (quoting Locurto, 157 N.J.
at 470). But "[a] trial court's interpretation of the law and the legal consequences
that flow from established facts are not entitled to any special deference."
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
We agree with defendants' argument that the provisions under which they
were sentenced prescribe penalties not authorized by statute. We therefore
conclude defendants' convictions are invalid.
We are guided in our analysis by our holding in State v. Laurel Mills
Sewerage Corp., 46 N.J. Super. 331 (App. Div. 1957). In that matter, the
defendant was found guilty of violating a provision of a municipal zoning
ordinance. Id. at 332-33. A penalty of $200, plus costs, was imposed. Id. at
333. The conviction and penalties were affirmed on appeal to the county court.
Ibid.
A-1681-23
17
On appeal, we considered whether the defendant's conviction was invalid
because the ordinance under which it was sentenced permitted a penalty
exceeding the amount the municipality was authorized to impose by statute. The
authority for imposition of penalties by municipalities generally is found in
N.J.S.A. 40:49-5. At the time Laurel Mills was decided, that statute provided:
The governing body may prescribe penalties for the
violation of ordinances it may have authority to pass,
either by imprisonment in the county jail . . . , or by a
fine not exceeding two hundred dollars, or both. The
magistrate before whom any person is convicted of
violating any ordinance of a municipality, shall have
power to impose any fine or term of imprisonment not
exceeding the maximum fixed in such ordinance.
[Ibid. (quoting N.J.S.A. 40:49-5 (1957)).]
The ordinance under which the defendant was fined, however, provided:
If any building or structure shall be erected,
constructed, extended, or added to in violation of this
Ordinance . . . the owner shall be subject to a fine of not
more than one thousand ($1000.00) [d]ollars and not
less than [t]en ($10.00) [d]ollars and/or imprisonment
not to exceed sixty (60) days.
[Ibid. (quoting Stratford Borough, N.J., Municipal
Code § 1202 (1957)).]
We held that even though the defendant was fined an amount within the
range of penalties authorized by N.J.S.A. 40:49-5, his conviction was invalid
A-1681-23
18
because the ordinance under which the penalty was imposed was not authorized
by that statute. We explained,
It is fundamental that, to the extent authorized by the
Legislature, a municipality may enact ordinances and
provide against their violation by penalties.
Municipalities are agencies of government for the local
administration of the legislative intention and policy.
The amount or limitation of a penalty imposed by an
ordinance must comply with the statutory authority. If
a municipality should provide in an ordinance a penalty
not authorized by statute, a local law would be framed
which the legislative power has not expressed its
intention to have enacted. Where the Legislature has
directed the manner in which ordinances are to be
enforced or the penalty to be imposed for their
violation, it thereby negatives the right of the
municipality to provide for any other penalty.
[Id. at 334-35.]
We invalidated the conviction even though the ordinance at issue contained a
severability clause. Id. at 335.
Ten years later, we reached the same conclusion in Borough of Verona v.
Shalit, 96 N.J. Super. 20 (App. Div. 1967). There, Shalit was found guilty in
municipal court for violating an environmental ordinance adopted by the
borough's Board of Health and fined $100. Id. at 21. The ordinance was adopted
pursuant to N.J.S.A. 26:3-70, the statute at issue in the present appeal. Id. at 22-
23. At the time, N.J.S.A. 26:3-70 provided that "[t]he local board may prescribe
A-1681-23
19
a penalty for the violation of any provision of a health ordinance or code. Such
penalty shall not be more than one hundred dollars nor less than two dollars."
Id. at 23 (quoting N.J.S.A. 26:3-70 (1967)). The ordinance under which Shalit
was fined, however, fixed the penalty at $200. Id. at 24.
Before this court, the borough admitted that the penalty provision of the
ordinance was invalid, but argued that since the penalty imposed on Shalit was
$100, an amount authorized by N.J.S.A. 26:3-70, the penalty was valid. Ibid.
We disagreed, holding that "it is the ordinance which must fix the penalty. The
maximum in the ordinance being invalid, the penalty clause is totally void."
Ibid. We continued, "[a]lthough the invalidity of a penalty clause does not
necessarily invalidate all of an ordinance, it does make the ordinance
unenforceable until the penalty clause is validly amended." Ibid. (citations
omitted).
The sections of the Municipal Code authorizing the penalties imposed on
Tasin and Baird suffer from the same deficiencies that resulted in the
invalidation of the convictions in Laurel Mills and Shalit. N.J.S.A. 26:3-70
authorizes municipalities to prescribe a penalty for violation of health
ordinances of not more than $500 nor less than $5. Section 164-14 of the
Municipal Code, however, prescribes a penalty of not more than $1,000 nor less
A-1681-23
20
than $100 for violations of Sections 173-27, 201-2(A), (C), and (D). In addition,
Section 173-30.2(B) prescribes a penalty of not more than $2,500 nor less than
$25 for violations of Section 173-24(A). The penalties prescribed by the
Municipal Code exceed in every respect the penalties municipalities are
authorized to prescribe by N.J.S.A. 26:3-70.
East Hanover adopted ordinances prescribing penalties the Legislature
"has not expressed its intention to have enacted." Laurel Mills, 46 N.J. Super.
at 334. "The penalty provided in the ordinance, being greater than is permitted
by statute, is void." Id. at 335. Defendants' convictions, as a result, must be
reversed.
We are not persuaded by the State's argument that the invalid penalty
provisions in the ordinances can be severed from the relevant sections of the
Municipal Code. In support of its position, the State relies on the holding in
State v. McCormack Terminal, Inc., 191 N.J. Super. 48 (App. Div. 1983). In
that matter, the defendant was convicted of violating a municipal ordinance
relating to air pollution. Id. at 49. A $500 penalty was imposed. Ibid. The
ordinance under which the defendant was fined prescribed a penalty of "no more
than $500.00, nor less than $5.00." Id. at 51 (quoting South Amboy Borough,
N.J., Municipal Code § 10.1 (1983)).
A-1681-23
21
We found the ordinance to be in conflict with N.J.S.A. 40:49-5, which at
the time defendant was fined provided in relevant part:
The governing body may prescribe penalties for the
violation of ordinances it may have authority to pass,
either by imprisonment in the county jail . . . or by a
fine not exceeding $500.00 . . . , or both. The court
before which any person is convicted of violating any
ordinance of a municipality, shall have power to impose
any fine or term of imprisonment not exceeding the
maximum fixed in such ordinance.
[Id. at 51, n. 4 (quoting N.J.S.A. 40:49-5 (1983)).]
We had "consistently held that N.J.S.A. 40:49-5 prohibits municipalities from
enacting minimum fines which would deprive judges of their statutory discretion
to impose 'any fine.'" Id. at 51 (citing State v. Hatco Chemical Co., 96 N.J.
Super. 238, 240-42 (App. Div. 1967); Studerus Oil Co., Inc. v. City of Jersey
City, 128 N.J.L. 286, 292 (Sup. Ct. 1942); Pfister Chemical Co., Inc. v. Romano,
15 N.J. Misc. 71, 72 (Sup. Ct. 1937)) (footnote omitted).3
The defendant, citing Shalit, argued "since the $5 minimum fine is invalid,
the entire penalty clause is void and the ordinance is therefore unenforceable."
Ibid. We declined to adopt that position, concluding instead that the minimum
3
The Legislature subsequently amended N.J.S.A. 40:49-5 to provide that "[t]he
court before which any person is convicted of violating any ordinance of a
municipality shall have power to impose any fine . . . not less than the minimum
and not exceeding the maximum fixed in such ordinance." See L. 1983, c. 410.
A-1681-23
22
fine was severable from the ordinance because it was "inconceivable that the
South Amboy governing body would have preferred sacrificing its entire
comprehensive anti-pollution code to losing the guarantee of a minimum $5
fine." Id. at 52. We observed that "removal of the $5 minimum fine is barely
perceptible. The remaining portion of the penalty clause is fully operable and
conforms to statutory authority." Id. at 53.
We also rejected the defendant's argument that our holding in Laurel Mills
precluded severance of the minimum fine from South Amboy's ordinance. We
noted that "[i]n Laurel Mills the penalty clause suffered from two infirmities. It
provided for a minimum fine of $10 and a maximum of $1,000 even though at
the time the statute authorized a maximum of only $200." Id. at 52. We noted
that:
Despite a severability clause in the ordinance, [we] held
that '[t]he penalty provided in the ordinance, being
greater than is permitted by statute, is void.' The
opinion reproduces the ordinance, but makes no other
reference to the minimum fine provision. It appears to
us that the court was exclusively concerned with the
excessive maximum fine feature of the ordinance,
concluding that severance would leave the ordinance
unenforceable because of the absence of any fixed
maximum. We need not consider whether in such a
case the statutory maximum may be read into the
ordinance.
[Id. at 52-53.]
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We see no basis to depart from the reasoning we applied in McCormack
Terminal. The penalty provisions of the Municipal Code at issue here each
contain both a maximum penalty and a minimum penalty that exceed the
statutory authorization in N.J.S.A. 26:3-70. Were we to sever both the
maximum penalty and minimum penalty from the ordinances, there would be no
prescribed penalties for their violation. We decline the State's invitation to
perform that judicial surgery and, having created a void in the ordinances, to
presume the East Hanover governing body intended to enact penalty provisions
that complied with N.J.S.A. 26:3-70, and insert into the ordinances maximum
and minimum penalties authorized by the Legislature. Courts will not intrude
into the legislative process to rewrite an invalid ordinance.
In light of our decision with respect to the penalty provisions of the
ordinances, we need not address the remaining arguments raised by defendants.
Reversed.
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