Petition for Writ of Certiorari — Aakash A. Dalal, Petitioner v. New Jersey

Supreme Court briefNov 14, 2022

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NOV 14 2022

IN THE SUPREME COURT OF THE UNITED STATES

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AAKASH DALAL,

Petitioner,

Vs.

STATE OF NEW JERSEY,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPERIOR COURT OF NEW

JERSEY, APPELLATE DIVISION

PETITION FOR WRIT OF CERTIORARI

Aakash Dalai

SBI #792652E

215 Burlington Road South

Bridgeton, NJ 08302

Petitioner, pro se

QUESTIONS PRESENTED FOR REVIEW

Whether litigants may bring facial constitutional challenges to laws without

first successfully raising as-applied challenges?

Whether litigants may bring facial challenges under the arbitrary enforcement

aspect of the void-for-vagueness doctrine without first successfully raising asapplied challenges?

Whether the Salerno “no set of circumstances” and “invalid in all

applications” tests or substantive tests of constitutional validity govern facial

constitutional challenges to laws after Johnson and Dimava?

Whether the New Jersey September 11th, 2001 Anti-Terrorism Act is void-forvagueness under the Due Process Clauses of the Fifth and Fourteenth

Amendments to the United States Constitution?

LIST OF PARTIES IN THE COURT BELOW

Pursuant to Rule 14.1(b),- Petitioner Aakash Dalai certifies that the names of all

parties to this proceeding appear in the caption of this Petition for Writ of Certiorari.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

LIST OF PARTIES IN THE COURT BELOW

INDEX OF APPENDICES

OPINIONS OF THE COURTS BELOW

JURISDICTION OF THE SUPREME COURT.

CONSTITUTIONAL PROVISIONS, STATUTES, AND REGULATIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

I. THE NEW JERSEY APPELLATE DIVISION AND THE FEDERAL CIRCUITS

ARE IN CONFLICT AND SPLIT ON THE IMPORTANT QUESTIONS OF

FEDERAL LAW PRESENTED....................................................

A. The New Jersey Appellate Division’s rule requiring successful as-applied

constitutional challenges as a predicate to facial challenges is in direct conflict with the

holdings of several federal circuits

B. New Jersey’s Appellate Division’s reliance on the Salerno test is in conflict with

numerous federal circuits, which are also split on whether the Salerno standard

continues to apply after Johnson and Dimaya.

II.

THE LOWER COURTS ARE CONFUSED REGARDING THESE UNSETTLED

FEDERAL QUESTIONS GOVERNING THE FUNDAMENTAL STANDARDS

FOR THE JUDICIAL REVIEW OF CONSTITUTIONAL CHALLENGES........16

III. NEW JERSEY’S APPELLATE DIVISION’S AND SEVERAL FEDERAL

CIRCUITS’ RULES RESTRICTING FACIAL CONSTITUTIONAL

CHALLENGES ARE IN CONFLICT WITH THE SUPREME COURT’S

DECISIONS AND PRACTICE.....................................................................

IV. NEW JERSEY’S ANTI-TERRORISM ACT IS VOID-FOR-VAGUENESS ON ITS

FACE IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS 25

CONCLUSION

INDEX OF APPENDICES

APPENDIX A -

April 15, 2021 Opinion of the Superior Court of New Jersey,

Appellate Division

APPENDIX B-

April 26, 2016 Opinion of the Superior Court of New Jersey, Law

Division

APPENDIX C -

May 6, 2022 Order of the Supreme Court of New Jersey Denying

Certification

APPENDIX D -

July 29, 2022 Order of the Supreme Court of New Jersey Granting

Leave to File a Motion for Reconsideration

APPENDIX E -

October 7, 2022 Order of the Supreme Court of New Jersey

Denying Motion for Reconsideration

TABLE OF AUTHORITIES

Cases

303 Creative LLC v. Elenis, 6 F.4th 1160, 1187 (10th Cir. 2021), cert, granted. 142 S. Ct.

1106(2022)......................................................................................................

A.L.A. Schechter Poultry Corp, v. United States. 295 U.S. 495, 530 (1935).......

Agnew v. Gov't of the Dist. of Columbia. 263 F. Supp. 3d 89, 95 (D.D.C. 2017)

ANSWER v. District of Columbia. 846 F.3d 391, 409-10 (D.C. Cir. 2017). cert, denied.

138 S.Ct. 334 (2017)................................................................................................... 10

Bowling v. McDonough. 38 F.4th 1051, 2022 U.S. App. LEXIS 17731 *23-25 (Fed Cir.

2022).................................................................... ;............

Carson v. Makin. 142 S. Ct. 1987 (2022)..........;...................

Chicago v. Morales. 527 U.S. 41, 55-56 n.22 (1999).............

22, 28

City of El Cenizo v. Texas. 890 F.3d 164, 187 (5th Cir. 2018)

City of Los Angeles v. Patel, 576 U.S. 409 (2015)................

19, 24

Club Madonna, Inc, v, City of Miami Beach. 42 F.4th 1231, 2022 U.S. App. LEXIS

21160 * 48-51 (11th Cir. 2022)..............................................................................

Connally v. General Construction Co.. 269 U.S. 385 (1925).....................................

Doe v. City of Albuquerque. 667 F.3d 1111, 1123-1127 (10th Cir. 2012)..................

F.C.C. v. Fox TV Stations. Inc.. 567 U.S. 239, 253 (2012)........................................

Gee v. Planned Parenthood of Gulf Coast, Inc.. 139 S. Ct. 408, 410 (2018)..............

Giacco v. Pennsylvania. 382 U.S. 399 (1966)................................................:...........

Grayned v. City of Rockford. 408 U.S. 104, 108-109 (1972).....................................

Guerrero v. Whitaker. 908 F.3d 541, 544 (9th Cir. 2018)...........................................

Gundy v. United States. 139 S. Ct. 2116, 2142 (2019)................................................

Hecox v. Little, 479 F. Supp. 3d 930, 968 n. 25 (D. Idaho 2020)...............................

Heffner v. Murphy. 745 F.3d 56, 65 n.7 (3d Cir. 2013)..............................................

Holder v. Humanitarian L. Project. 561 U.S. 1, 18-19 (2010).....................................

In re Methyl Tertiary Butyl Ether (AUBE) Prods. Liah.. 674 F. Supp. 2d 494, 505

(S.D.N.Y. 2009)......................................................................................................

International Harvest Co. of America v. Kentucky. 234 U.S. 216 (1914)...................

Johnson v. United States. 576 U.S. 591, 601-03,135 S. Ct 2551, 192 L. Ed. 2d 569

(2015)................................................................................................

15,28

Kashem v. Barr. 941 F.3d 358, 375-377 (9th Cir. 2019).......................

Knick v. Twp. of Scott. 862 F.3d 310, 320 (3d Cir. 2017)....................

Kolender v. Lawson, 461 U.S. 285, 357-358 (1983).............................

17, 26, 28

Lanzetta v. New Jersey, 306 U.S. 451 (1939).......................................

Libertarian Party v. Cuomo. 970 F.3d 106, 126 (2nd Cir. 2020)...........

Liberty Coins, LLC v. Goodman. 880 F.3d 274, 281 (6th Cir. 2018)....

Marbury v. Madison. 5 U.S. 137 (1803)................................................

McCullen v. Coaklev. 571 F.3d 167, 174 (1st Cir. 2009)......................

N.Y. State Rifle & Pistol Assoc.. Inc, v. Bruen, 142 S.Ct. 2111 (2022)

People v. Morales. 982 N.E.2d 580, 586 (N.Y. 2012)...........................

Planned Parenthood Southeast. Inc, v. Strange. 172 F. Supp. 3d 1275, 1284 (M.D. Ala.

2016)....................................................................................................

Sessions v. Dimava. 138 S. Ct. 1204, 1229 (2018)..................................

15, 23

SisterSong Women of Color Reprod. Just. Collective v. Governor of Ga.

Smith v. Goguen. 415 U.S. 566, 574 (1974).....................................

,...26, 25

State v. Dalai. 467 N.J. Super. 261, 252 A.3d 204 (App. Div. 2021)

9,14,21

United States v. Bramer. 832 F.3d 908, 909-910 (8th Cir. 2016)......

United States v. Cook. 970 F.3d 866, 876 (7th Cir. 2020)...............

20, 22

United States v. Davila-Reves. 23 F.4th 153, 2022 U.S. App. LEXIS 1638 * 77, 77 n. 61

(1st Cir. 2022)....................................................................................

United States v. Gonzalez-Longoria. 813 F.3d 225, 229 (5th Cir. 2016)

United States v. Hasson. 26 F.4th 610 (4th Cir. 2022)...........................

20, 22

United States v. L. Cohen Grocery Co., 255 U.S. 81 (1921)..................

United States v. Reese. 92 U.S. 214, 221 (1876)....................................

United States v. Requena. 980 F.3d 29, 40 (2d Cir. 2020).....................

20, 26

United States v. Salerno. 481 U.S. 739, 745 (1987)...............................

15,21

United States v. Stupka. 418 F. Supp. 3d 402, 411 (N.D. Iowa 2019)....

Statutes

28U.S.C. 6 1257(al

N.J.S. 2C:38-2

2, 26, 27

N.J.S. 2C:38-2(c)

N.J.S. 2C:38-2f'd')

Other Authorities

Justice Samuel Chase to Chief Justice John Marshall, April 24,1802, The Papers of John

Marshal 6:109-116, Chapel Hill, The University of North Carolina Press, 1984

Marshall Papers, Herbert A. Johnson, ed. Speech, June 20, 1788, pages 275-86 ....

Rules

Supreme Court Rule 10(b)......

Supreme Court Rule 10(c)......

Supreme Court Rule 14.1(g)(i)

Treatises

A. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 151

fl 962).......................................................................................................................... 17

As-Applied and Facial Challenges and Third-Party Standing. 113 Harv. L. Rev. 1321,

1336 (2000)................................................................................................................. 19

Cannel, New Jersey Criminal Code Annotated, comment 3 to N.J.S. 2C:38-2 (2006).... 27

Dorf, Facial Challenges to State and Federal Statutes. 46 Stan. L. Rev. 235, 271-276

(1994)......................................................................................................................

F. Dwarris, A General Treatise on Statutes 652 (P. Potter ed. 1871)..........................

Gillian E. Metzger, Facial and As-Applied Challenges Under the Roberts Court. 36

Fordham Urb. L.J. 773, 774 (2009)........................................................................

Gillian E. Metzger, Facial Challenges and Federalism. 105 Colum. L. Rev. 873, 882

(2005)......................................................................................................................

Nicholas J. Perry, The Numerous Federal Legal Definitions of Terrorism: The Problem of

Too Many Grails. 30 J. Legis. 249. 251 f20041.......................................................... 28

Richard H. Fallon, Jr., Fact and Fiction About Facial Challenges. 99 Cal. L. Rev. 915,

963 (2011)

11, 19, 20,21

Standing-Facial Versus As Applied Challenges-Citv of Los Angeles v. Patel. 129 Harv.

L. Rev. 241,246 (2015)

viu

•»

The Federalist No. 78, Bantam Classic Ed. at 399 (A. Hamilton).....

The Federalist No. 80, Bantam Class ed. 1982 at 403 (A. Hamilton)

Constitutional Provisions

United States Constitution, Fifth Amendment.........

United States Constitution, Fourteenth Amendment

••• .!

OPINIONS OF THE COURTS BELOW

The April 15, 2021 opinion and judgment of the Superior Court of New Jersey,

Appellate Division sought to be reviewed was published at State v. Dalai. 467 N.J. Super.

261, 252 A.3d 204 (App. Div. 2021) (Docket No. A-5556-16) and is appended as

Appendix A.

The April 26, 2016 decision of the trial court, the Superior Court of New Jersey,

Law Division (Indictment No. 13-03-00374) is appended as Appendix B.

The May 6, 2022 decision of the Supreme Court of New Jersey denying

certification (Docket No. 085739) is appended as Appendix C.

The July 29, 2022 decision of the Supreme Court of New Jersey granting leave to

file a motion for reconsideration as within time is appended as Appendix D.

The October 7, 2022 decision of the Supreme Court of New Jersey denying the

motion for reconsideration is appended as Appendix E.

JURISDICTION OF THE SUPREME COURT

The Supreme Court of New Jersey, New Jersey’s highest state court, denied

Petitioner’s petition for certification on May 6, 2022. A timely motion for reconsideration

was denied on October 7, 2022. Copies of these orders appear at Appendix C, D, and E.

Petitioner challenges the validity of the New Jersey September 11th, 2001 AntiTerrorism Act, N.J.S. 2C:38-2, on the ground of it being repugnant to the United States

Constitution.

The jurisdiction of this Court is therefore invoked under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS. STATUTES. AND REGULATIONS

INVOLVED

United States Constitution, Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury, except in cases arising in the land or naval

forces, or in the Militia, when in actual service in time of War or public danger; nor shall

any person be subject for the same offence to be twice put in jeopardy of life or limb; nor

shall be compelled in any criminal case to be a witness against himself, nor be deprived

of life, liberty, or property, without due process of law; nor shall private property be

taken for public use, without just compensation.

United States Constitution, Fourteenth Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the State wherein they reside. No State

shall make or enforce any law which shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its jurisdiction the equal

protection of the laws.

The New Jersey September 11th, 2001 Anti-Terrorism Act, N.J.S. 2C:38-2:

A person is guilty of the crime of terrorism if he commits or attempts,

conspires or threatens to commit any crime enumerated in subsection c. of

this section with the purpose:

(1) to promote an act of terror; or

(2) to terrorize five or more persons; or

(3) to influence the policy or affect the conduct of government by terror;

(4) to cause by an act of terror the impairment or interruption of public

communications, public transportation, public or private buildings,

common carriers, public utilities or other public services; or

(5) to influence or incite an act of terror against an individual or group of

individuals based on their actual or perceived race, religion, color, national

origin, affectional or sexual orientation, sex, gender identity or expression,

disability, creed, or any other characteristic protected under the “Law

Against Discrimination,” P.L. 1945, c.169 (C. 10:5-1 et seq.), if the

underlying crime is a crime of the first or second degree.

b. Terrorism is a crime of the first degree.

(1) Notwithstanding any other provision of law to the contrary, any person

convicted under this section shall be sentenced to a term of 30 years,

during which the person shall not be eligible for parole, or to a specific

term of years which shall be between 30 years and life imprisonment, of

which the person shall serve not less than 30 years before being eligible

for parole.

c. The crimes encompassed by this section are: murder pursuant to N.J.S.2C:11-3;

aggravated manslaughter or manslaughter pursuant to N.J.S.2C:11-4; vehicular

homicide pursuant to N.J.S.2C: 11-5; aggravated assault pursuant to subsection b.

ofN.J.S.2C:12-l; disarming a law enforcement officer pursuant to section 1 of

P.L. 1996, c.14 (C.2C:12-11); kidnapping pursuant to N.J.S.2C:13-1; criminal

restraint pursuant to N.J.S.2C:13-2; robbery pursuant to N.J.S.2C:15-1; carjacking

pursuant to section 1 of P.L.1993, c.221 (C.2C:15-2); aggravated arson or arson

pursuant to N.J.S.2C:17-1; causing or risking widespread injury or damage

pursuant to N.J.S.2C: 17-2; damage to nuclear plant with the purpose to cause or

threat to cause release of radiation pursuant to section 1 of P.L. 1983, c.480

(C.2C:17-7); damage to nuclear plant resulting in death by radiation pursuant to

section 2 of P.L. 1983, c.480 (C.2C:17-8); damage to nuclear plant resulting in

injury by radiation pursuant to section 3 of P.L. 1983, c.480 (C.2C:17-9); burglary

«''

pursuant to N.J.S.2C: 18-2; producing or possessing chemical weapons, biological

agents or nuclear or radiological devices pursuant to section 3 of P.L.2002, c.26

(C.2C:38-3); possession of prohibited weapons and devices pursuant to

N.J.S.2C:39-3; possession-of weapons for unlawful purposes pursuant to

N.J.S.2C:39-4; unlawful possession of weapons pursuant to N.J.S.2C:39-5;

weapons training for illegal activities pursuant to section 1 of P.L.1983, c.229

(C.2C:39-14); racketeering pursuant to N.J.S.2C:41-1 et seq.; and any other crime

involving a risk of death or serious bodily injury to any person.

d. Definitions. For the purposes of this section:

“Government” means the United States, any state, county, municipality, or

other political unit, or any department, agency or subdivision of any of the

foregoing, or any corporation or other association carrying out the

functions of government.

“Serious bodily injury” means bodily injury which creates a substantial

risk of death or which causes serious, permanent disfigurement, or

protracted loss or impairment of the function of any bodily member or

organ.

“Terror” means the menace or fear of death or serious bodily injury.

“Terrorize” means to convey the menace or fear of death or serious bodily

injury by words or actions.

STATEMENT OF THE CASE

BACKGROUND

Petitioner Aakash Dalai (“Mr. Dalai”) presented facial and as-applied challenges

to the constitutionality of New Jersey’s September 11th, 2001 Anti-Terrorism Act, N.J.S.

2C:38-2, (“the Anti-Terrorism Act”) before New Jersey’s courts. New Jersey prosecutors

charged Mr. Dalai with violating sections (a)(1) and (2) of the Anti-Terrorism Act based

on alleged incidents of vandalism and arson. Minor damage is alleged to have occurred.

At the time of the crimes in New Jersey, Mr. Dalai was in New Hampshire working on a

presidential primary campaign. Prosecutors alleged that Mr. Dalai encouraged the

primary actor—the co-defendant—to commit these crimes. After a jury trial, Mr. Dalai

was sentenced to a 35-year prison term with a mandatory minimum of 30-years of parole

ineligibility, as required by the Anti-Terrorism Act. N.J.S. 2C:38-2(b).

Mr. Dalai argued that the Act was void-for-vagueness under the Fifth and

Fourteenth Amendments because its vague language permitted arbitrary enforcement by

law enforcement, judges, and juries. The Anti-Terrorism Act eschews the ordinary

definition of “terrorism” by omitting the requirement of a political purpose and simply

employing, dictionary definitions of the words “terror” and “terrorize”. On its face, the

statute is a banana republic style terrorism law that is unmoored from the common

understanding of the concept of terrorism. In New Jersey, any crime plus the inference of

an intent to frighten constitutes terrorism.

The Superior Court of New Jersey, Appellate Division, New Jersey’s court of last

resort, broadly established the wrong legal standards for the evaluation of facial

constitutional challenges. More specifically, the state court established the wrong legal

standard for the evaluation of facial challenges with respect to the arbitrary enforcement

aspect of the vagueness doctrine. First, the Appellate Division refused to consider Mr.

Dalai’s facial challenge, stating, “for a court to consider a facial challenge, a challenger

must be able to successfully bring an as-applied challenge.” State v. Dalai. 457 N.J.

Super. 261, 282 (App. Div. 2021). Next, to support this restrictive rule, the Appellate

Division relied on the Salerno “invalid in all applications” test and attempted to

distinguish this Court s decisions in Johnson and Dimava. Id. As explained more fully

below, this rule is in conflict with the Supreme Court’s decisions and practice and the

explicit holdings of the Third, Fifth, and D.C. Circuits. It is further in conflict with the

practices of the First and Sixth Circuits. The Appellate Division’s standard, however, is

m line with the Second, Fourth, Seventh, Eighth, Ninth, Tenth, and Federal Circuits.

II.

RULE 14.1(g)(i) - FEDERAL QUESTIONS RAISED IN STATE

COURTS

Pursuant to Rule 14.1(g)(i), because review of a state-court judgment is sought, it

is noted that the federal issues raised here were initially raised in the state trial court, the

Superior Court of New Jersey, Law Division, and New Jersey’s appellate court, the

Superior Court of New Jersey, Appellate Division:

Defendant mounts both an ‘as applied’ and facial void for vagueness challenge

to the statute at bar.”

Appendix B at 12.

“Defendants separately appeal, challenging the constitutionality of the New Jersey

Anti-Terrorism Act (Act), N.J.S.A. 2C;38-1 to -5. In this consolidated opinion we

address a question of first impression: whether the Act is unconstitutionally

vague. We hold it is not.”

Dalai. 252 A.3dat207.

“Defendants appeal and argue that their terrorism convictions should be reversed

because the Act is unconstitutional on its face and as applied to them. In

connection with those arguments, defendants also assert that the Act

impermissibly delegates a legislative function to the executive branch thereby

allowing arbitrary and selective enforcement.”

Id. at 214.

Both the trial and appellate courts rejected the federal questions raised by

Petitioner:

“Defendants argue that two recent decisions by the United States Supreme Court

allow facial vagueness challenges even if the statute is not vague as applied to

their conduct. See Sessions v. Dimaya, U.S. , 138 S. Ct. 1204, 1214 n.3, 200

L. Ed. 2d 549 (2018); Johnson v. United States, 576 U.S. 591, 601-03, 135 S. Ct.

2551, 192 L. Ed. 2d 569 (2015).

In neither Johnson nor Dimaya did the Court explicitly reject the concept that a

person challenging a statute must normally show that it is vague as applied to him

or her. Consequently, some federal and state appeals courts have concluded that

neither Johnson nor Dimaya overruled the principle that, for a court to consider a

facial challenge, a challenger must be able to successfully bring an as-applied

challenge.”

Dalai. 252 A.3d at 216-217.

“A law is facially vague if it is vague in all applications. United States v. Salerno,

481 U.S. 739, 745, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987)”

Id. at 216.

The Supreme Court of New Jersey denied certification and a motion for

reconsideration on these same federal issues and questions. Appendix C, D, and E.

REASONS FOR GRANTING THE WRIT

As explained in Section I, New Jersey’s Appellate Division decided three

important federal questions in a way that is in direct conflict with several United States

Courts of Appeals: (1) whether successful as-applied constitutional challenges are

mandatory predicates to facial constitutional challenges; (2) whether a litigant may bring

a facial void-for-vagueness challenge in the arbitrary enforcement aspect of the doctrine

without first bringing a successful as-applied challenge; and (3) whether the purported

Salerno “invalid in all application” test governs facial constitutional challenges. As

further explained in Section II, these questions of federal law go to the heart of the

judiciary’s most fundamental duty in our republic: the review of laws to ensure that they

comply with the Constitution1. Lower courts and scholars have expressed confusion with

regard to facial versus as-applied constitutional challenges and lamented that the

Supreme Court has not provided clear guidance with regard to these questions.

Importantly, these questions affect how every state and federal court in this nation

evaluates constitutional challenges because they concern the fundamental, analytical

framework courts must apply.

In Section III, Mr. Dalai argues that the Third, Fifth, and D.C. Circuits have

gotten the questions right by considering facial constitutional challenges, ignoring the

Salerno test, and instead evaluating statutes through the lens of substantive tests specific

to the constitutional right and doctrine at issue. In practice, the Supreme Court has

Chief Justice John Marshall stated at the Constitutional Convention that, if Congress exceeded its

authority in passing a law, “it would be considered by the Judges as an infringement of the Constitution

which they are to guard ” and they would “declare it void.” Marshall Papers, Herbert A. Johnson, ed.

Speech, June 20, 1788, pages 275-86. “[A]ll judges, by the Constitution are required to bind themselves by

oath to support the Constitution of the United States... and that they are bound in duty to declare acts of

Congress or any of the states contrary to the Constitution void.” Justice Samuel Chase to Chief Justice John

Marshall, April 24, 1802, The Papers of John Marshal 6:109-116, Chapel Hill, The University of North

Carolina Press, 1984.

followed the correct approach as well—routinely striking down laws on their face and

spuming the Salerno test when doing so. Finally, in Section IV, Mr. Dalai argues that the

proper standards, when applied to the Anti-Terrorism Act, compel the conclusion that it

violates the Fifth and Fourteenth Amendments and is void-for-vagueness.

THE NEW JERSEY APPELLATE DIVISION AND THE FEDERAL

CIRCUITS ARE IN CONFLICT AND SPLIT ON THE IMPORTANT

QUESTIONS OF FEDERAL LAW PRESENTED

New Jersey’s Appellate Division’s ruling regarding these important federal

questions is in direct conflict with the explicit holdings of the United States Courts of

Appeals for the Third Circuit, the Fifth Circuit, and the D.C. Circuit. Rule 10 of the

Supreme Court’s Rules has therefore been satisfied, as New Jersey’s court of last resort

has decided important federal questions in a way that conflicts with the decisions of

several United States Courts of Appeals. Rule 10(b). These conflicts require the Supreme

Court's intervention and clarification to ensure the uniform interpretation of federal law

throughout the United States. Because New Jersey’s court of last resort has come to the

opposite conclusion of the Third Circuit, certiorari should be granted. See, e.g.. Gallardo

v. Marstiller, 142 S.Ct. 1751, 1757 (2022) (“Because the Supreme Court of Florida came

to the opposite conclusion of the Eleventh Circuit, we granted certiorari”).

A. The New Jersey Appellate Division’s rule requiring successful asapplied constitutional challenges as a predicate to facial challenges is

in direct conflict with the holdings of several federal circuits.

Mr. Dalai challenged sections (a)(1) and (2) of the Anti-Terrorism Act as voidfor-vagueness on their face because they allow and encourage arbitrary enforcement by

law enforcement, judges, and juries. Relying on Humanitarian Law Project, the New

Jersey Appellate Division rejected Mr. Dalai’s facial vagueness challenge at the outset

holding, “a person challenging a statute must normally show that it is vague as applied to

him or her.” Dalai, 467 N.J. Super, at 281 (citing Holder v. Humanitarian Law Project.

561 U.S. 1, 18-19 (2010)). Importantly, in rejecting Mr. Dalai’s facial vagueness

challenge, the Appellate Division distinguished the Supreme Court’s decisions in

Johnson and Dimaya. and ruled, “consequently ... for a court to consider a facial

challenge, a challenger must be able to successfully bring an as-applied challenge.”

Dalai. 467 N.J. Super, at 282.

By contrast, the D.C. Circuit has explicitly rejected this interpretation of

Humanitarian Law Project. Act Now to Stop War & End Racism Coal. & Muslim Am.

Soc'y Freedom Found, v. District of Columbia, 846 F.3d 391, 409-10 (D.C. Cir. 2017),

cert- denied, 138 S.Ct. 334 (2017) (“[I]t is not apparent how the Humanitarian Law

Project rule—barring a person to whom a legal provision clearly applies from

challenging its facial failure to give sufficient notice to others—could apply to a claim

that a law is so vague as to fail to guide the government’s enforcement discretion.”). “We

are aware of no decision that has applied Humanitarian Law Project to bar a facial

chalienge like [the plaintiff’s that a law is so vague as to subject the challenger itself to

standardless enforcement discretion.” Id.2

More broadly, the Third and Fifth Circuits have explicitly rejected the idea that a

challenger cannot bring a facial constitutional challenge without first successfully

bringing an as-applied challenge. “[Tjhere is no requirement that a facial challenge be

accompanied by an as-applied challenge.” Knick v. Twp. of Scott. 862 F.3d 310, 320 (3d

Cir. 2017) (citing City of Los Angeles v. Patel. 576 U.S. 409 (2015))

“If a litigant loses an as-applied challenge because the allegedly unconstitutional

circumstances of enforcement are simply ‘not supported by [the] record,’ and the

litigant otherwise has standing to challenge a law (such as a defendant in an

enforcement action), then ‘a court cannot simply refuse to address a facial

challenge that offers a defendant her last chance to argue that the statute being

enforced against her is constitutionally invalid.’”

Knick, 862 F.3d at 321 (quoting Richard H. Fallon, Jr., Fact and Fiction About

Facial Challenges, 99 Cal. L. Rev. 915, 963 (2011)3) (emphasis added); United States v.

Gonzalez-Longoria. 813 F.3d 225, 229 (5th Cir. 2016) (“The government correctly points

out that a defendant cannot raise a vagueness challenge to a statute simply because some

hypothetical other defendant's conduct might create a ‘vague application’ of the statute.

This restriction, however, does not mean that every defendant must first show that a

2 Agnew v. Gov’t of the Dist. of Columbia. 263 F. Supp. 3d 89, 95 (D.D.C. 2017) (“[T]he D.C.

Circuit held that the guidance set forth in Humanitarian Law Project does not apply to a

vagueness challenge to a statute premised on the argument that the statute encourages arbitrary

and discriminatory enforcement”); United States v. Stupka. 418 F. Supp. 3d 402, 410 (N.D. Iowa

2019). (“[A] facial void-for-vagueness challenge may be permissible when a law presents

concerns of standardless or arbitrary enforcement because the rule that permits only as-applied

challenges bears little relation to the arbitrary enforcement prong.”) Id. at 411.

3 Professor Fallon stated, “A party against whom a statute is being enforced coercively is always

entitled to argue that the statute is invalid. If an as-applied challenge fails, or if the record fails to

support one, a court cannot simply refuse to address a facial challenge that offers a defendant her

last chance to argue that the statute being enforced against her is constitutionally invalid.” Fallon,

Fact and Fiction at 963. The Third Circuit, as a matter of policy, considers facial constitutional

challenges prior to considering as-applied challenges. See, e.g„ Heffner v, Murphv. 745 F.3d 56,

65 n.7 (3d Cir. 2013).

statute is vague as applied to him as a predicate to any further argument of facial

vagueness.”)

The First and Sixth Circuits have implicitly rejected the notion that a challenger

must first successfully raise an as-applied challenge in order to raise a facial challenge.

United States v. Davila-Reyes, 23 F.4th 153, 2022 U.S. App. LEXIS 1638 * 77 n. 61 (1st

Cir. 2022) (invalidating law on its face because of “constitutional flaw evident in the

statutory terms themselves.”); Liberty Coins, LLC v. Goodman, 880 F.3d 274, 281 (6th

Cir. 2018) (striking down Ohio statute as facially unconstitutional and noting, “the

Supreme Court recently clarified that these types of challenges ‘are not categorically

barred or especially disfavored.’”)

The Second, Fourth, Seventh, Eighth Ninth, Tenth, and Federal Circuits, however,

adhere to the view that a facial challenge can only be raised by a challenger who has

successfully brought an as-applied challenge. United States v. Requena, 980 F.3d 29, 4043 (2d Cir. 2020); United States v. Hasson, 26 F. 4th 610 (4th Cir. 2022); United States v.

Cook, 970 F.3d 866, 872 (7th Cir. 2020) (noting, however, that the Supreme Court has

entertained facial vagueness challenges where the challenged statute “lacks any

ascertainable standard for inclusion and exclusion”); United States v. Bramer, 832 F.3d

908, 909-910 (81,1 Cir. 2016); Kashem v. Barr, 941 F.3d 358, 375-377 (9th Cir. 2019);

303 Creative LLC v. Elenis, 6 F.4th 1160, 1187 (10th Cir. 2021), cert granted, 142 S. Ct.

1106 (2022); Bowling v. McDonough, 38 F.4th 1051,2022 U.S. App. LEXIS 17731 *2325 (Fed Cir. 2022)4.

4 The courts are also confused as to the basis of this rule. Several dissenting Justices and the

Second Circuit explicitly link the as-applied as a predicate to facial challenges rule to the Salerno

test. Compare Kolender. 461 U.S. at 369 (calling it a “correlative rule”); United States v.

Requena, 980 F.3d 29, 40 (2d Cir. 2020) (“[W]e typically evaluate vagueness challenges to

B. New Jersey’s Appellate Division’s reliance on the Salerno test is in

conflict with numerous federal circuits, which are also split on

whether the Salerno standard continues to apply after Johnson and

Dimava.

Citing Salerno, the New Jersey Appellate Division held, “A law is facially vague

if it is vague in all applications.” Dalai. 467 N.J. Super, at 281 (citing Salerno. 481 U.S.

at 745). The New Jersey Appellate Division’s reliance on Salerno is in conflict with and

an erroneous interpretation of the decisions of this Court in Johnson and Dimava.

Johnson v. United States. 135 S. Ct. 2551,2560-61 (2015) (“[0]ur holdings squarely

contradict the theory that a vague provision is constitutional merely because there is some

conduct that clearly falls within the provision’s grasp.”). The Johnson Court eviscerated

the illogical underpinning of the Salerno test, ruling the “supposed requirement of

vagueness in all applications is not a requirement at all, but a tautology.” Id. at 2561;

Sessions v. Dimava, 138 S. Ct. 1204, 1214 n. 3 (2018) (“[Fundamentally, Johnson made

clear that our decisions ‘squarely contradict the theory that a vague provision is

constitutional merely because there is some conduct that clearly falls within the

provision's grasp.”’)

In actual practice, the United States Supreme Court has never required that

challengers successfully mount as-applied challenges before raising facial challenges and

statutes ... in light of the facts of the case at hand, i.e., only on an as-applied basis. ... This

requirement is based on the general tenet that, to succeed in a facial challenge, “the challenger

must establish that no set of circumstances exists under which the [challenged statute] would be

valid.” By contrast, the Fourth and Federal Circuits believe that the rule requiring successful asapplied challenges as a predicate to facial challenges is “independent of the substantive standard

forjudging a facial vagueness challenge”, i.e., the Salerno test. Hasson. 2022 U.S. App. LEXIS

4741* 18-20; Bowling. 2022 U.S. App. LEXIS 17731 * 23 (“This principle is distinct from the

Salerno principle: It links a facial challenge to an as-applied challenge, not to the universe of

possible applications.”)

K '

has never applied the Salerno standard.5 “To the extent we have consistently articulated a

clear standard for facial challenges, it is not the Salerno formulation, which has never

been the decisive factor in any decision of this Court, including Salerno itself (even

though the defendants in that case did not claim that the statute was unconstitutional as

applied to them, the Court nevertheless entertained their facial challenge).” Chicago v.

Morales. 527 U.S. 41, 55-56 n.22 (1999).

The New Jersey Appellate Division’s decision is further in conflict with the

holdings of several federal circuit courts, including the Third, Fourth, Seventh, Ninth and

Tenth Circuits. In rejecting the Salerno "invalid in all applications"/ "no set of

circumstances" standard, the Third Circuit has noted that the Supreme Court “has often

considered facial challenges simply by applying the relevant constitutional test to the

challenged statute, without trying to dream up whether or not there exists some

hypothetical situation in which application of the statute might be valid.” Bruni v. City of

Pittsburgh. 824 F.3d 353, 362-363 (3d Cir. 2015); United States v. Hasson. 26 F.4th 610

(4th Cir. 2022) (“[T]he [U.S. Supreme] Court reiterated that a statute need not be vague

in all its applications to be unconstitutional.”); United States v. Cook. 970 F.3d 866, 876

(7th Cir. 2020) (“It is true that Johnson puts to rest the notion-found in any number of

pre-Johnson cases-that a litigant must show that the statute in question is vague in all of

its applications in order to successfully mount a facial challenge.”); Guerrero v.

Whitaker. 908 F.3d 541, 544 (9th Cir. 2018) (rejecting the “no set of circumstances”

standard and holding, “Johnson and Dimava expressly rejected the notion that a statutory

provision survives a facial vagueness challenge merely because some conduct clearly

5 Richard H. Fallon, Jr., Fact and Fiction About Facial Challenges. 99 Cal. L. Rev. 915, 936-49

(2011) (examining empirical evidence and concluding that the Supreme Court regularly facially

invalidates laws, and ignores the purported Salerno standard when it does)

falls within the statute's scope.”); Doe v. City of Albuquerque. 667 F.3d 1111, 1123-1127

(10th Cir. 2012) (“The idea that the Supreme Court applies the £no set of circumstances’

test to every facial challenge is simply a fiction, readily dispelled by a plethora of

Supreme Court authority.”)

Other federal circuit courts, including the Second and Fifth Circuits, have

however, continued to rely on the “no set of circumstances” and “vague in all

applications” Salerno test to reject facial constitutional challenges. Libertarian Party v.

Cuomo, 970 F.3d 106, 126 (2nd Cir. 2020); United States v. McGinnis. 956 F.3d 747,

752 (5th Cir. 2020); Cjty of El Cenizo v. Texas. 890 F.3d 164, 187 (5th Cir. 2018) (“The

[Supreme] Court did not overrule the Salerno standard but merely clarified that, under the

unconstitutional-in-all-of-its-applications analysis, a court must ‘consider[] only

applications of the [challenged] statute in which it actually authorizes or prohibits

conduct.’”)

The Eleventh Circuit is internally conflicted with one panel rejecting the Salerno

test in a published opinion eleven days after another panel relied on it. Compare Club

Madonna, Inc, v. City of Miami Beach. 42 F.4th 1231,2022 U.S. App. LEXIS 21160 *

48-51 (11th Cir. 2022) (“Salerno is correctly understood not as a separate test applicable

to facial challenges, but a description of the outcome of a facial challenge in which a

statute fails to satisfy the appropriate constitutional framework.”) with SisterSong

Women of Color Reprod. Just. Collective v. Governor of Ga.. 40 F.4th 1320 (11th Cir.

2022) (“[F]or a facial” void-for-vagueness challenge to succeed, “the challenger must

establish that no set of circumstances exists under which the Act would be valid.”)

II.

THE LOWER COURTS ARE CONFUSED REGARDING THESE

UNSETTLED FEDERAL QUESTIONS GOVERNING THE

FUNDAMENTAL STANDARDS FOR THE JUDICIAL REVIEW OF

CONSTITUTIONAL CHALLENGES

To vindicate the rights guaranteed by the Constitution, citizens must turn to the

courts. The Federalist No. 80, Bantam Class ed. 1982 at 403 (A. Hamilton) (“[TJhere

ought always to be a constitutional method of giving efficacy to constitutional provisions.

What for instance would avail restrictions on the authority of the [ ] legislatures, without

some constitutional mode of enforcing the observation of them.”) The questions

presented are at the core of how this nation's courts evaluate constitutional challenges to

state and federal laws. These standards by their nature impact the review of laws

concerning every facet of life in this nation ranging from criminal statutes and election

laws to municipal ordinances and administrative regulations. State and federal laws are

challenged in this nation's courts on a daily basis. Without clear and uniform standards

governing how those challenges should be evaluated, courts will produce erratic and

inconsistent results. The Federalist No. 78, Bantam Classic ed. 1982 at 394 (A. Hamilton)

(“[Constitutional] limitations of this kind can be preserved in practice no other way than

through the medium of the courts of justice; whose duty it must be to declare all acts

contrary to the manifest tenor of the constitution void.”)

As the law presently stands (Section I), some courts consider facial constitutional

challenges, while others outright reject them. Some courts rely on the restrictive,

purported Salerno test, while others instead evaluate laws through the substantive tests

specific to each constitutional doctrine. As shown below, many courts have recognized

this disparate treatment of constitutional challenges and expressed confusion. This level

of uncertainty is unacceptable when it comes to the bedrock principle ofjudicial review

and the primacy of the Constitution over legislation as established in this nation's earliest

days. Marburv v. Madison. 5 U.S. 137 (1803).

Certiorari should be granted because the New Jersey Appellate Division decided

these important questions of federal law that have not been, but should be settled by the

Supreme Court. Rule 10(c). If any area of the law calls for uniform standards, it is the

way in which courts’ evaluate constitutional challenges. The Federalist No. 78, Bantam

Classic Ed. at 399 (A. Hamilton) (“To avoid an arbitrary discretion in the courts, it is

indispensable that they should be bound down by strict rules and precedents, which serve

to define and point out their duty in every particular case that comes before them.”).

More specifically, the question of whether this nation’s state and federal courts

may consider facial vagueness challenges is particularly important because “[v]ague laws

invite arbitrary power.” Dimaya. 138 S. Ct. at 1223 (Gorsuch, J., concurring). The “void

for vagueness doctrine, at least properly conceived, serves as a faithful expression of

ancient due process and separation of powers principles the framers recognized as vital to

ordered liberty under our Constitution.” Id^ Furthermore, the potential for arbitrary

enforcement of the laws always presents a clear threat to the liberty of society. “Although

the [void-for-vagueness] doctrine focuses both on actual notice to citizens and arbitrary

enforcement, we have recognized that ‘the most meaningful aspect of the vagueness

doctrine is not actual notice, but the other principal element of the doctrine—the

requirement that a legislature establish minimal guidelines to govern law enforcement.’”

6 “It is impossible to dissent from the doctrine of Lord Coke, that acts of parliament ought to be

plainly and clearly, and not cunningly and darkly penned, especially penal matter.” F. Dwarris, A

General Treatise on Statutes 652 (P. Potter ed. 1871); A. Bickel, The Least Dangerous Branch:

The Supreme Court at the Bar of Politics 151 (1962) ("A vague statute delegates to

administrators, prosecutors, juries, and judges the authority of ad hoc decision, which is in its

nature difficult if not impossible to hold to account, because of its narrow impact")

Kolender v. Lawson. 461 U.S. 285, 357-358 (1983) (quoting Smith v. Goguen. 415 U.S.

566, 574 (1974))7.

The Supreme Court has an obligation to provide clear standards and must act

when there is confusion among the lower courts—particularly where the confusion has

been caused by the Court’s decisions. Gee v. Planned Parenthood of Gulf Coast. Inc„ 139

S. Ct. 408, 410 (2018) (Thomas, J., dissenting form denial of certiorari) (“We are

responsible for the confusion among the lower courts, and it is our job to fix it.”) Here,

the lower courts have expressed confusion as to the law governing facial and as-applied

constitutional challenges. United States v. Stupka. 418 F. Supp. 3d 402, 408 (N.D. Iowa

2019) (“When is a facial void-for vagueness challenge allowed? The case law on this

issue is limited and unclear ... [TJhere is no definitive or binding authority on the issue.”)

Planned Parenthood Southeast. Inc, v. Strange. 172 F. Supp. 3d 1275, 1284 (M.D. Ala.

2016) (“To be candid, the law on facial versus as-applied relief is a mess.”); Davis v. City

of New York, 959 F. Supp. 2d 324, 343 n. 79 (S.D.N.Y. 2013) (“The distinction between

facial and as-applied challenges is not always clear, and has been defined in various

ways.”); In re Methyl Tertiary Butyl Ether (MTBE1 Prods. Liab., 674 F. Supp. 2d 494,

505 (S.D.N.Y. 2009) (“There are few areas of the law that are as confused and conflicted

as the law governing facial challenges.”); McCullen v. Coaklev, 571 F.3d 167, 174 (1st

Cir. 2009) (“Around the edges, the standards that apply in evaluating facial challenges to

the constitutionality of statutes are not entirely clear.”); United States v. Requena. 980

F.3d 29, 40 (2d Cir. 2020) (“Neither the Supreme Court nor our Court has definitively

resolved whether facial vagueness challenges not based on the First Amendment may

7 The New Jersey Appellate Division and some of the federal circuits have lumped together the

arbitrary enforcement prong of the vagueness doctrine with the fair notice prong and broadly

ruled that facial vagueness challenges are not permissible.

proceed against statutes that can constitutionally be applied to the challenger's own

conduct.”)

“[A]s many scholars note, the distinction, if any, between a facial and an asapplied challenge is difficult to explain because there is a disconnect between what the

Supreme Court has outlined and what happens in actual practice.” Hecox v. Little. 479 F.

Supp. 3d 930, 968 n. 25 (D. Idaho 2020); Richard H. Fallon, Jr., Fact and Fiction About

Facial Challenges, 99 Cal. L. Rev. 915, 936-49 (2011) (examining empirical evidence

and concluding that the Supreme Court regularly facially invalidates laws, and ignores

the purported Salerno standard when it does); Gillian E. Metzger, Facial and As-Applied

Challenges Under the Roberts Court. 36 Fordham Urb. L.J. 773, 774 (2009) (noting that

the Court is divided as to the appropriate general test for facial challenges and arguing

that the Court "has made little effort to describe the contours of as-applied litigation")

Standing—Facial Versus As Applied Challenees-Citv of Los Angeles v. Patel. 129 Harv.

L. Rev. 241, 246 (2015); Gillian E. Metzger, Facial Challenges and Federalism. 105

Colum. L. Rev. 873, 882 (2005); Michael C. Dorf, Facial Challenges to State and Federal

Statutes, 46 Stan. L. Rev. 235, 271-276 (1994)

As Professor Fallon has noted, “[tjhe Justices have lectured not only the lower

courts, but also each other, about when facial challenges are and are not appropriate.”

Fallon, Fact and Fiction at 917. This has resulted in the lower courts disparately

evaluating constitutional challenges by guessing at what standards and tests to apply. The

Court should not allow this confusion to persist. Certiorari should therefore be granted to

settle the federal questions presented.

III.

NEW JERSEY’S APPELLATE DIVISION’S AND SEVERAL

FEDERAL CIRCUITS’ RULES RESTRICTING FACIAL

CONSTITUTIONAL CHALLENGES ARE IN CONFLICT WITH THE

SUPREME COURT’S DECISIONS AND PRACTICE; THEY MUST BE

REJECTED

The New Jersey Appellate Division has decided federal questions in a way that

conflicts with relevant decisions of the Supreme Court, providing another compelling

reason to grant certiorari. Rule 10(c). The approach taken by the Supreme Court in

practice, and the Third, Fifth, and D.C. Circuits should be explicitly adopted. “[Cjontrary

to the conventional wisdom, the Supreme Court does not routinely insist on ruling on asapplied challenges before deciding whether to hold a statute invalid on its face, nor

should it almost always do so.” Fallon, Fact and Fiction at 919. This Court should reject

the rulings of the New Jersey Appellate Division and several federal circuit courts that a

successful as-applied challenge is a mandatory predicate to a facial constitutional

challenge. This erroneous rule creates an obvious logical quandary. If a litigant brings a

successful as-applied challenge, then a facial challenge would become moot. Conversely,

if a litigant’s as-applied challenge fails, his facial challenge cannot be considered.

Consequently, under this illogical rule, facial challenges can never be raised.

That cannot be the case, however, as the Supreme Court has long considered and

upheld facial challenges in the arbitrary enforcement context of the void-for-vagueness

doctrine. International Harvest Co. of America v. Kentucky. 234 U.S. 216 (1914); United

States v. L. Cohen Grocery Co.. 255 U.S. 81 (1921); Connally v. General Construction

Co., 269 U.S. 385 (1925); Lanzetta v. New Jersey. 306 U.S. 451 (1939); Giacco v.

Pennsylvania. 382 U.S. 399 (1966); Coates v. Cincinnati. 402 U.S. 611 (1971); Kolender

v. Lawson, 461 U.S. 352 (1983); Morales. 527 U.S. at 51; Johnson. 135 S. Ct. at 2551;

Dimava. 138 S. Ct. at 1204. “[F]acial challenges constitute the norm, not the anomaly, in

constitutional litigation before the Supreme Court in which the validity of statutes and

their applications is at issue.” Fallon, Fact and Fiction at 920. In each of these cases, the

Supreme Court has struck down statutes on their face using the vagueness doctrine

without first considering as-applied challenges.

In Lanzetta, the Supreme Court stated, “[I]f on its face the challenged provision is

repugnant to the due process clause, specification of details of the offense intended to be

charged would not serve to validate it.” In Kolender, the dissent argued, “[t]he usual rule

is that the alleged vagueness of a criminal statute must be judged in light of the conduct

that is charged to be violative of the statute.” Kolender, 461 U.S. at 369 (White, J.,

dissenting). The majority rejected the dissent’s argument, stating, “[n]o authority cited by

the dissent supports its argument about facial challenges in the arbitrary enforcement

context.” Id. at 358 n. 8. That is because arbitrary enforcement aspect of the vagueness

doctrine and the similar non-delegation doctrine8 have nothing to do with the conduct of

the defendant, but rather, the language of the law, and whether the law itself delegates too

much authority either to the Executive or the Judiciary. The rule prohibiting a litigant

from bringing a facial vagueness challenge where his conduct is “clearly proscribed” may

apply to the fair notice prong of the vagueness doctrine, Humanitarian Law Project, 561

8 With respect to the non-delegation doctrine, the constitutional inquiry is very similar: whether

Congress has improperly delegated its legislative function to the executive or judicial branches.

Gundv v. United States. 139 S. Ct. 2116, 2142 (2019) (Gorsuch, J., dissenting) (“It's easy to see,

too, how most any challenge to a legislative delegation can be reframed as a vagueness complaint

... And it seems little coincidence that our void-for-vagueness cases became much more common

soon after the Court began relaxing its approach to legislative delegations.”). The Court has long

held that a non-delegation doctrine challenge is facial in nature. A.L.A. Schechter Poultry Corp.

v. United States, 295 U.S. 495, 530 (1935). Courts must “look to the statute to see whether

Congress... has itself established the standards of legal obligation, thus performing its essential

legislative function, or, by the failure to enact such standards, has attempted to transfer that

function to others.” Id.

U.S. at 20, but is patently inapplicable to the arbitrary enforcement prong. “[Wjhether

conduct is clearly proscribed under the terms of the statute reveals little about whether the

statutory language, or the process through which it is applied, has sufficiently clear

standards to prevent arbitrary enforcement.” Stupka, 418 F. Supp. 3d at 411; ANSWER,

846 F.3d at 409-410.

The New Jersey Appellate Division and several federal circuit courts have missed

this point and improperly rejected facial vagueness challenges by conflating the fair

notice aspect of the void-for-vagueness doctrine with its arbitrary enforcement aspect.

They ignored that in Johnson and Dimaya, this Court invalided federal statutes because

they encouraged arbitrary enforcement by judges. Johnson. 576 U.S. at 597. These courts

further tried to distinguish Johnson and Dimava by claiming they considered facial

vagueness challenges because the statutes at issue were unique in that they required

judges to consider imaginary and abstract scenarios, as opposed to real world conduct.

Requena, 980 F.3d at 41 (“[T]he exceptional circumstances that justified Johnson's

extraordinary facial invalidation”); Hasson. 2022 U.S. App. LEXIS 4741 *22 (Johnson's

and Dimava’s “unique context sets them apart”). This conclusion was also erroneous as

Johnson pointed to Supreme Court decisions invalidating statutes that applied to real

world conduct. Johnson. 576 U.S. at 603 (citing L. Cohen Grocery Co.. 255 U.S. at 89

and Coates. 402 U.S. at 611). As such, “[t]he Supreme Court’s opinion in Johnson also

supports the proposition that cases presenting substantial concerns about arbitrary

enforcement and procedure warrant a facial void-for-vagueness review.” Stupka. 418 F.

Supp. 3d at 410.

•

The Court should further explicitly reject the Salerno test, which needlessly

superimposes an “invalid in all applications” standard on the substantive test governing

the constitutional right at issue9 Michael C. Dorf, Facial Challenges to State and Federal

Statutes, 46 Stan. L. Rev. 235, 239-42 (1994) (“[T]he Salerno opinion cites no direct

authority to support its truly draconian standard.”). Courts should consider facial

challenges on a doctrine-by-doctrine basis and evaluate challenges simply through the

lens of the substantive test for the constitutional provision raised by a litigant. Fallon, AsApplied and Facial Challenges And Third-Party Standing. 113Harv. L. Rev. 1321, 1324

(2000) (“[T]he availability of facial challenges varies on a doctrine-by-doctrine basis and

is a function of the applicable substantive tests of constitutional validity.”)

This is the appropriate method of evaluating facial constitutional challenge this

Court and the Third and Tenth Circuits have practiced. The Supreme Court “has often

considered facial challenges simply by applying the relevant constitutional test to the

challenged statute[.]” Brum, 824 F.3d at 363. “[Wjhere a statute fails the relevant

constitution test (such as strict scrutiny, the Ward test, or reasonableness review), it can

no longer be constitutionally applied to anyone - and thus there is cno set of

circumstances’ in which the statute would be valid. The relevant constitutional test,

however, remains the proper inquiry.” Id (quoting Doe. 667 F.3d at 1127). “Thus,

Salerno is correctly understood not as a separate test applicable to facial challenges, but a

description of the outcome of a facial challenge in which a statute fails to satisfy the

appropriate constitutional framework.” Doe, 667 F.3d at 1123. Simply put, “there is no

9 Dimaya. 138 S. Ct. at 1229 (2018) (Gorsuch, J., concurring) (“[A]ny suggestion that criminal

cases warrant a heightened standard of review does more to persuade me that the criminal

standard should be set above our precedent’s current threshold than to suggest the civil standard

should be buried below it.”)

one test that applies to all facial challenges... much less the Salerno formulation.” Id. at

1124.

In evaluating facial challenges, the Supreme Court has simply applied the

relevant, substantive constitutional test to the challenge statute. See, e.g., N.Y. State Rifle

& Pistol Assoc.. Inc, v. Bruen. 142 S.Ct. 2111 (2022) (facially invalidating gun law by

applying substantive Second Amendment test—-whether “the regulation is consistent with

this Nation’s historical tradition of firearm regulation”); Carson v. Makin. 142 S. Ct.

1987 (2022) (striking down Maine statute on its face because it violated the First

Amendment Free Exercise Clause test—whether a law “excludes religious observers

from otherwise available public benefits”); Patel. 576 U.S. at 409 (holding that “facial

challenges under the Fourth Amendment are not categorically barred or especially

disfavored” and applying “reasonableness” test)

Any rule rejecting a challenger’s facial challenge ab initio is questionable in light

of this Court’s holding that, “[t]he distinction between facial and as-applied challenges is

not so well defined that it has some automatic effect or that it must always control the

pleadings and disposition in every case involving a constitutional challenge.” Citizens

United v. Fed. Election Comm’n. 558 U.S. 310, 331 (2010); Bucklew v. Precvthe. 139 S.

Ct. 1112, 1128 (2019) (“[Classifying a lawsuit as facial or as-applied affects the extent

to which the invalidity of the challenged law must be demonstrated and the

corresponding "breadth of the remedy," but it does not speak at all to the substantive rule

of law necessary to establish a constitutional violation.’”)

IV.

NEW JERSEY’S ANTI-TERRORISM ACT IS VOID-FORVAGUENESS ON ITS FACE IN VIOLATION OF THE FIFTH AND

FOURTEENTH AMENDMENTS

The September 11th, 2001 Anti-Terrorism Act is void for vagueness as the New

Jersey Legislature’s decision to frame the term terrorism using definitions of the words

terror and terrorize leaves the law with no core at all.

[A] criminal provision is vague ‘not in the sense that it requires a person to

conform his conduct to an imprecise but comprehensible normative standard, but

rather in the sense that no standard of conduct is specified at all.’ Coates v City

of Cincinnati. 402 US 611, 614 (1971). Such a provision simply has no core.

This absence of any ascertainable standard for inclusion and exclusion is precisely

what offends the Due Process Clause. The deficiency is particularly objectionable

in view of the unfettered latitude thereby accorded law enforcement officials and

triers of fact. Until it is corrected either by amendment or judicial construction, it

affects all who are prosecuted under the statutory language.

Smith. 415 U.S. at 578.

A criminal statute is unconstitutionally vague when it “authorize^] or even

encouragejs] arbitrary enforcement.” Morales. 527 U.S. at 56 (emphasis added). Any

statute that gives prosecutors “the full discretion ... to determine" whether a violation

has occurred "entrusts lawmaking to the moment-to-moment judgment of the policeman

on his beat[,] . . . furnishes a convenient tool for harsh and discriminatory enforcement by

local prosecuting officials, against particular groups deemed to merit their displeasure[,] .

.. and confers on police a virtually unrestrained power to arrest and charge persons with a

violation.” Kolender. 461 U.S. at 357-58 (emphasis added). A statute is void when its

“standardless sweep allows policemen, prosecutors, and juries to pursue their personal

predilections.” Smith. 415 U.S. at 575 (emphasis added).

The statute provides that, “[a] person is guilty of the crime of terrorism if he

commits or attempts, conspires or threatens to commit any crime enumerated ih

subsection c. of this section with the purpose: (1) to promote an act of terror; or (2) to

terrorize five or more persons[.]” N.J.S. 2C:38-210. The term “terror” is defined as “the

menace or fear of death or serious bodily injury,” and the term “terrorize” means “to

convey the menace or fear of death or serious bodily injury by words or actions.” N.J.S.

2C:38-2(d).

While the statute purports to criminalize terrorism, what it actually prohibits is the

commission of an underlying crime with the intent to frighten. The Legislature used the

most basic definitions of the words “terror” and “terrorize,” which are merely synonyms

of the words “fear” and “frighten,” instead of the actual definition of terrorism. The

problem with such a statute is that an intent to frighten could be gleaned from the

commission of virtually any crime in and of itself. Furthermore the word “promote” in

subsection'(a)(l) is undefined. Given the lack of any limiting language, the word

“promote ... [is] susceptible of multiple and wide-ranging meaningsf.]” Williams, 553

U.S. at 294-95.

This amorphous definition of terrorism and the breadth of possible predicate

crimes, N.J.S. 2C:38-2(c), leave it open to abuse. Any person who brandishes a

switchblade or carries a stun gun in New Jersey could be subject to a mandatory

minimum of 30-years in prison. A fistfight could be prosecuted as an act of terror,

subjecting the participants to a lifetime in prison. Given that terror and fear are inherent

components of many crimes, the possibilities are endless. Any robber or murderer could

10 This scienter language does not protect the statute from invalidation, as it is the very language

being challenged as unconstitutionally vague.

be charged as a terrorist. John M. Cannel, New Jersey Criminal Code Annotated,

comment 3 to N.J.S. 2C:38-2 (2022)11 (“[A]ny assault with a weapon could be an act of

terror, and any robbery of a convenience store could terrorize five or more persons”).

It remains unclear what additional fact must be proven to elevate an ordinary

crime to terrorism. The U.S. Supreme Court’s determination that “a regulation is not

vague because it may at times be difficult to prove an incriminating fact but rather

because it is unclear as to what fact must be proved” best sums up the problem with this

statute. F.C.C. v. Fox TV Stations. Inc.. 567 U.S. 239, 253 (2012). The promotion or

conveyance of the “menace or fear of death or serious bodily injury” are the purpose or

byproduct of most violent crimes and may even be perceived by victims of non-violent

crimes. What additional fact transforms an ordinary armed robbery, which is meant to

convey fear for the purpose of a theft, to terrorism in violation ofN.J.S. 2C:38-2(a)(l) or

(2)? What must a prosecutor prove and what must a suspect do to transform an assault

with a weapon, which may convey the menace of fear to five or more bystanders, to

terrorism?

By employing indefinite language, the Legislature has provided no apparent

answers to these questions and given prosecutors, judges, and juries carte blanche to

make them up. Whether a common criminal is to be designated a terrorist and condemned

to life in prison with a 30-year parole disqualifier is left to the caprices of a county

prosecutor and his boss, the Attorney General. With no clear guidance, New Jersey

prosecutors are free to impose their own predilections on a case-by-case basis. What is

11 Professor Cannel further noted: “The ordinary understanding of “terrorism” involves the

planned use of violence or destruction to achieve political goals ... However, the purposes

specified to elevate an ordinary crime to terrorism do not convey this common understanding

clearly.” Id.

clear, however, is that, whether influenced by personal motivations or external pressure,

prosecutors have absolute discretion to label nearly anyone charged with a crime in New

Jersey a terrorist.

A political purpose is the sine qua non of terrorism and is what separates it from

ordinary crime. The absence of such an indispensable political element makes this statute

susceptible to whims of prosecutors. The “concept of terrorism has a unique meaning,”

as the Court of Appeals of New York noted. People v. Morales. 982 N.E.2d 580, 586

(N.Y. 2012). In State v. Yocum, the Supreme Court of Appeals of West Virginia agreed

that a political purpose is a “universal component” of terrorism:

“Despite the variance in statutory enactments which address terrorism, there is a

consensus that both violence and a political purpose are universal components

included in this type of legislation. See Nicholas J. Perry, The Numerous Federal

Legal Definitions of Terrorism: The Problem of Too Many Grails, 30 J. Legis.

249, 251 (2004)(recognizing that “vast majority of definitions of terrorism contain

some reference to the two most common components ... violence and a political

purpose or motivation.”)”

759 S.E.2d 182 (W.Va. 2014). This unique meaning is not adequately expressed

by the most basic definitions of “terror” or “terrorize”. The statute further excludes an

element requiring the targeting of the civilian population—another requirement found in

a small minority of definitions of “domestic terrorism.” See, e.g., 18 U.S.C. § 2331 (5)12;

V.A. Code § 18.2-46.4 (defining “act of terrorism” as “an act of violence ... committed

with intent to (i) intimidate the civilian population at large ... ”). The New Jersey

Appellate Division acknowledged the reality that the state’s Anti-Terrorism Act stands

alone in this respect. Dalai. 252 A.3d at 219-220 (“While the federal ATA, as well as

12 It bears mention that the definition of “domestic terrorism” in 18 U.S.C. 2331(5) is merely one

of many definitions of terrorism in the United States Code and does not have an enforcement

mechanism. It is not a criminal statute and not a single person has been prosecuted much less

convicted under the definition.

many other states' terrorism statutes, link terrorism to a political purpose, there is nothing

unconstitutionally vague about New Jersey's Act.”)

The nebulous language of the statute bolsters the inescapable conclusion that the

legislature impermissible “set a net large enough to catch all possible offenders, [leaving]

it to the courts to step inside and say who could be rightfully detained, and who should be

set at large.” United States v. Reese. 92 U.S. 214, 221 (1876); Grayned v. City of

Rockford, 408 U.S. 104, 108-109 (1972) (“A vague law impermissibly delegates basic

policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective

basis.”) Vesting law enforcement with such absolute discretion to decide whether a

violation has occurred is the hallmark of a vague statute.

The danger against which the void for vagueness doctrine was meant guard is a

statute that “allows” or “encourages” prosecutors to pursue such erratic prosecutions. The

very fact that this anti-terrorism statute gives prosecutors such “full discretion” in the first

place is sufficient to render it void for vagueness. By clearly proscribing nothing at all,

the statute impermissibly allows prosecutors to charge just about everything as terrorism.

CONCLUSION

For the foregoing reasons, this petition for writ of certiorari should be granted.

Respectfully submitted:

AakashDaL

Dated: November 4, 2022

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.