Montclair’s Civil Rights Commission and some members of the Township Council are questioning language in township ordinances that says people could be jailed for 90 days for  disorderly persons and petty disorderly persons offenses, and for quality-of-life violations. 

What it means: If you get a parking ticket, violate Montclair’s leaf blower, noise or loitering laws, don’t clean up after your dog, feed the geese, trespass on a railroad or don’t license your bicycle you could face jail time — at least theoretically — according to Montclair’s codes. The 90-day clause is attached to hundreds of small violations. 

But township officials say it’s very rare for courts to actually impose jail time for those types of offenses, if they do at all. Calls to the state judiciary’s Office of Communications seeking breakdowns of penalties imposed for disorderly persons and petty disorderly persons violations haven’t been returned. 

According to state statute, municipalities can set fines of up to $1,000 for disorderly persons offenses and $500 for petty disorderly persons offenses, and jail terms of up to 90 days for those offenses. Courts are allowed to impose any penalty up to the maximum a municipality's ordinance lays out.

Township Attorney Ira Karasick said the penalty clause is basically a boilerplate standard used by many municipalities.

The 90-day incarceration clause came up under scrutiny when Montclair was expanding its gas powered leaf blower ordinance last February. The law created a minimum fine of $100, a maximum of $2,000, and a possible 90-day jail term for violators. Councilman Peter Yacobellis who penned the new law, said it would alleviate noise and particulate pollution for homeowners, while protecting workers who use the tools on a daily basis.

But residents called in to Township Council meetings, questioning the penalty portion of the ordinance, asking: If the township is so concerned for the workers, why are they threatening them with jail time?

Karasick said although the option of 90-day imprisonment is ultimately at the discretion of a judge ruling on a violation, he did not “think that anyone was ever imprisoned for these violations or ever would be.”

Last month the 90-day clause was again called into question when Yacobellis attempted to remove penalties for parking at broken meters, after township officials said at least 11% were not functioning. The measure to nix the penalties got voted down, but some council members did emphasize the threat of a 90-day jail term was a concern. When Yacobellis asked for the jail clause to at least be removed, Karasick suggested the township look at eliminating the threat of jail time not on a piecemeal basis, for individual ordinances, but rather across the board.

Jeanne LoCicero, legal director of the American Civil Liberties Union of New Jersey in Newark, told Montclair Local that she sees the clause used by many New Jersey municipalities. Although it’s rare for anyone to face jail time for petty offenses, “removing that threat provides more information,” she said. “Especially when entering a plea bargain and not understanding the reality of the consequences they are actually facing. People may not know that’s not actually on the table, these extraordinary penalties.”

LoCicero said it's “a step forward for municipalities to remove threats for quality of life violations.”

Montclair Civil Rights Commission Chair Christa Rappaport said the group is concerned about incarceration being unfairly applied. The commission is concerned with what she said is hundreds of violations where ordinances allow inappropriate jail penalties.

“It is clear that criminal penalties in this situation resemble institutional racism of the past and of recent years. These criminal penalties are no different than Jim Crow laws, which imprisoned African American men and women for ‘loitering’ throughout the United States and even in New Jersey,” she said. “A Black person walking home from work could be imprisoned and confined to work camps for walking home at night, aka loitering. The noise ordinance and leaf blower ordinances as drafted are dangerous and can be subject to arbitrary and capricious enforcement.”

She points to Maplewood, which does not have criminal penalties for leaf blowing and its general noise ordinances. 

Although New Jersey townships can impose criminal sentences as a maximum penalty, that criminal penalty is not mandatory and is subject to township discretion, Rappaport said. 

“Removing similar unduly harsh penalties in other ordinances would be a good thing,” she  added.

Yacobellis told Montclair Local that there are at least 150 ordinances that will be reviewed and will then passed off to the public safety committee to get their input. Then in early 2022, he hopes the township “will be striking jail time as punishment in several sections of our code, especially noise and parking.