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In an effort to overcome legal challenges, Marlboro is calling its ban on cell-phone use a public safety measure rather than a traffic regulation. But municipal attorneys are divided over whether that will do the trick. At issue is whether such an ordinance is a matter of public safety, which local governing entities are authorized to control, or a traffic regulation, which is governed by N.J.S.A. 39:1-13 and thereby pre-empted. A similar ordinance in Hilltown, Pa., was struck down for pre-emption reasons just two days before Marlboro adopted its ban on July 13. The Court of Common Pleas of Bucks County, Pa., said the local law took a back seat to the state’s motor vehicle code. Marlboro Assistant Township Attorney Dominick Manco anticipates a challenge. But Marlboro hopes to avoid the pre-emption pitfall by designating its ordinance as a public safety matter, says Manco, an associate with McLaughlin, Bennett, Gelson & Cramer in Wall Township. Marlboro ordinance No. 2000-18, the first in the state banning cell-phone use, prohibits dialing, answering, talking or listening to a mobile phone while driving on a public road. Violators can be fined up to $250. Cell-phone use is allowed if the vehicle is parked or if the driver is using a “hands-free” device. On-duty law enforcement and emergency personnel are exempt. Police in the 31-square-mile township do not plan to issue tickets for at least two or three weeks to give the public time to learn about. Several bills banning cell phones are pending in the Legislature. But Manco says Marlboro felt compelled to pass its own regulation because of the state’s failure to do so. Township officials interpreted that inaction to mean the state does not intend to act on the issue, Manco says. He adds that the introduction of the bills bolsters Marlboro’s argument that current motor vehicle laws do not encompass cell-phone use and that the ordinance therefore is not pre-empted. But Hackensack Municipal Attorney Richard Salkin says he doesn’t believe Marlboro’s ordinance will stand because it is essentially a motor vehicle regulation. Simply switching the label to “public safety” won’t change that, he says. “The problem with that kind of argument is, what if a town were to say it’s an issue of public safety for a driver to drive with an .08 level blood alcohol level?” Salkin says. “You can couch anything in public safety. … I don’t think it’s going to fly.” Salkin says that, if asked, he would advise the Hackensack City Council against passing such an ordinance. Instead, he would suggest it draft a resolution urging the Legislature to act. By contrast, Cranford Municipal Attorney Albert Stender is convinced that that Marlboro’s ordinance will not be pre-empted by state law. “An ordinance restricting the use of cell phones while driving is a legitimate exercise of a municipality’s power to regulate health, safety and welfare issues,” says Stender, who also represents Kenilworth and Roselle Park. Nothing in Title 39 specifically addresses cell phone use, says Stender, a partner with Cranford’s Stender & Hernandez. Therefore, it would not pre-empt an ordinance on cell-phone use. The closest connection is the provision on careless driving, N.J.S.A. 39:4-97, he says. It bars driving “without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property.” Nonetheless, because there is no reference to cell phones, the statute would not pre-empt the ordinance, he says. Raymond Bolanowski, president of the New Jersey Institute of Municipal Attorneys, takes the middle road. “I think you could make an argument both ways,” says Bolanowski, an attorney for Elizabeth. He declines to say what he would recommend Elizabeth do in such a case. But he adds that he slightly favors the pre-emption argument because the ordinance seems closer to a traffic regulation. On the other hand, he says, Marlboro’s ordinance is clearly worded to invoke public safety. In particular, he cites its preamble, which states that “… the Township of Marlboro believes that a regulation of the use of mobile telephones while operating motor vehicle[s] within the Township will enhance the safety of those persons operating motor vehicles as well as pedestrians.” The issue has reached the state Legislature. Two pending bills seek to outlaw cell-phone use while driving, even with a hands-free adapter. The measures, introduced in January, carry fines of $100 to $250. S-480 is awaiting action in the Senate Law and Public Safety Committee; its Assembly counterpart, A-1929, is awaiting action in the Assembly Transportation Committee. Both bills cite research reported in the New England Journal of Medicine that telephone use while driving is unsafe, regardless of whether the device is hand held. Another bill S-2487, introduced on May 22, calls for the collection of data on how often cell phones are a factor in auto accidents. The measure would require the Division of Motor Vehicles to modify its traffic accident forms to include such information. William John Kearns, general counsel for the New Jersey League of Municipalities, says its legislative committee voted not to support the bills banning cell-phone use. The panel said the measures were too broad. For its part, the mobile telephone industry argues that the issue belongs in the state’s hands. Representatives from AT&T Wireless Services spoke out at the Marlboro Council meeting before the measure was adopted. But the company does not plan to challenge it, says spokesman Chris Doherty. That may not be necessary anyway. Philip Berg, the former Pennsylvania deputy attorney general who successfully challenged Hilltown, Pa.’s ordinance, has offered to cross the border on a pro hac vice basis to represent, for free, any New Jersey plaintiff who wants to challenge Marlboro’s ordinance. All he needs is a plaintiff — and a New Jersey attorney also willing to take on the case gratis.

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