Karins v. City of Atlantic City2/18/1998
ntains that the regulations are void for vagueness, overbreadth, or both, and that disciplining him for off-duty private speech infringed upon his First Amendment right to freedom of speech.
First, we address Karins's vagueness and overbreadth arguments. The ALJ concluded that Karins had no notice that his speech was subject to discipline because (1) the "fashions of behavior" are subject to change and differing interpretations, and (2) the City's speech code is unwritten, and therefore incapable of providing notice.
A statute or regulation is facially unconstitutional for vagueness if it "either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed. 2d 322, 328 (1926); State v. Lashinsky, 81 N.J. 1, 17-18 (1979). Last term, we observed that a vague statute or regulation "creates a denial of due process because of a failure to provide notice and warning to an individual that his or her conduct could subject that individual to criminal or quasi-criminal prosecution." State v. Hoffman, 149 N.J. 564, 581 (1997).
Because this case involves alleged vagueness in the First Amendment context, the same standard of strict scrutiny that is used for criminal prosecutions is to be applied. Smith v. Goguen, 415 U.S. 566, 573, 94 S. Ct. 1242, 1247, 39 L. Ed. 2d 605, 612 (1974). Otherwise, a slightly less critical scrutiny would be permitted in this non-criminal case. State v. Cameron, 100 N.J. 586, 592 (1985); Town Tobacconist v. Kimmelman, 94 N.J. 85, 119 n.16 (1983). Even applying the higher standard does not mean "that the rule or regulation cannot be drawn in broad terms, provided it is controlled by a sufficient basic norm or standard. It need not be minutely detailed to cover every possible situation." In re Gioglio, 104 N.J. Super. 88, 100 (Cty. Ct. 1968)(citing Moyant v. Borough of Paramus, 30 N.J. 528, 553 (1959); Ward v. Scott, 11 N.J. 117, 123-24 (1952)).
-A-
The existence of a "catchall" provision in a disciplinary regulation does not automatically render the regulation void on vagueness grounds. When confronted with a vagueness challenge to an employment regulation, the United States Supreme Court stated that "'it is not feasible or necessary for the Government to spell out in detail all that conduct which will result in retaliation. The most conscientious of codes that define prohibited conduct of employees include 'catchall' clauses prohibiting employee 'misconduct,' 'immorality,' or 'conduct unbecoming.'" Arnett v. Kennedy, 416 U.S. 134, 161, 94 S. Ct. 1633, 1648, 40 L. Ed. 2d 15, 37 (1974)(quoting Meehan v. Macy, 392 F.2d 822, 835 (D.C. Cir. 1968)). The Arnett catchall provision permitted removal or suspension of nonprobationary government employees "only for such cause as will promote the efficiency of the service." Arnett, supra, 416 U.S. at 140, 94 S. Ct. at 1637, 40 L. Ed. 2d at 25.
Arnett involved a federal employee who was dismissed for publicly stating that his supervisor and an assistant attempted to bribe a representative of a community organization. Id. at 137, 94 S. Ct. at 1636, 40 L. Ed. 2d at 23-24. The Court noted that the statute was "not directed at speech as such, but at employee behavior, including speech, which is detrimental to the efficiency of the employing agency." Id. at 162, 94 S. Ct. at 1648, 40 L. Ed. 2d at 38. The Court held that the statute was not unconstitutionally overbroad because the language, "such cause as will promote the efficiency of the service," excluded constitutionally protected speech. Ibid.
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