Caruso v. City of New York

• Decision Date: 09 July 1987
• Citation: 517 N.Y.S.2d 897,136 Misc.2d 892
• Parties: In the Matter of the Application of Phil CARUSO, as President of the Patrolmen's Benevolent Association of the City of New York, Inc., and the Patrolmen's Benevolent Association of the City of New York, Inc., Petitioners, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. The CITY OF NEW YORK, Edward I. Koch, as Mayor of the City of New York, the Police Department of the City of New York, Benjamin Ward, as Police Commissioner of the City of New York, and the Civilian Complaint Review Board of the Police Department of the City of New York, Respondents.
• Court: New York Supreme Court

Page 897

517 N.Y.S.2d 897

136 Misc.2d 892

In the Matter of the Application of Phil CARUSO, as President of the Patrolmen's Benevolent Association of the City of New York, Inc., and the Patrolmen's Benevolent Association of the City of New York, Inc., Petitioners For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. The CITY OF NEW YORK, Edward I. Koch, as Mayor of the City of New York, the Police Department of the City of New York Benjamin Ward, as Police Commissioner of the City of New York, and the Civilian Complaint Review Board of the Police Department of the City of New York, Respondents.

Supreme Court, New York County,

IAS Part 26.

July 9, 1987.

Law Offices of Richard Hartman, (Raymond E. Kerno, of counsel), Little Neck, for petitioners.

Peter L. Zimroth, Corp. Counsel, New York City, (Nicole A. Gordon and Ronald Younkins, of counsel), for respondents.

ARTHUR E. BLYN, Justice.

In this Article 78 proceeding, petitioners Phil Caruso, as president of the Patrolmen's Benevolent Association of the City of New York ("PBA"), a public sector labor union, and the PBA seek a judgment declaring Local Law No. 13-A null and void.

Petitioners contend that Local Law No. 13-A, which is an amendment to section 440 of Chapter 18 of the Charter of the City of New York, was enacted by the New York City Council without authority, because it amends a Charter provision previously enacted by voter initiative in 1966. ¹ Respondents cross-move to dismiss the petition on the ground it fails to state a cause of action.

In May 1966, the New York City Police Commissioner established, by administrative order, an advisory review board consisting of four members appointed by the Mayor and three members appointed by the Police Commissioner, to review civilian complaints against police officers and to recommend whether formal charges should be preferred based on civilian complaints. On July 7, 1966, petitions were filed (on behalf of the PBA) with the City Clerk calling for submission of a proposed Charter amendment to the voters at the general election of November 1966. The PBA sought to limit membership on the review board to full-time employees of the Police Department. After litigation, the proposed Charter amendment appeared on the ballot in the general election of 1966 and was adopted by the voters.

This voter initiated measure became section 440 of Chapter 18 of the Charter, which provided that no person could be appointed to the Civilian Complaint Review Board ("CCRB") unless the person was, for a period of at least one year prior to the appointment, a regularly appointed full-time member or full-time administrative employee of the Police Department.

On November 6, 1986, the New York City Council passed Local Law No. 13-A, which amended section 440 of the City Charter, and eliminated the requirement that CCRB members be full-time Police Department employees. Local Law No. 13-A instead provides that the CCRB shall be comprised of twelve members, six of whom are civilians representing the five boroughs and the City-at-large. The Mayor of the City of New York signed the Council measure into law on November 24, 1986. Petitioners thereafter commenced this proceeding challenging Local Law No. 13-A as null and void. Respondents argue that the Council possesses the authority to amend section 440 of the Charter notwithstanding that it was enacted by voter initiative in 1966.

Municipalities in New York, in relation to matters which are local and municipal in character, have been granted "home-rule" under the Constitution of this State. By virtue of this grant, municipalities possess broad powers of legislation and administration of their affairs provided there exists no express or implied prohibition by the Constitution or the general law (N.Y.Const., art. IX, §§ 122).

Section 10 of the Municipal Home Rule Law implements this constitutional grant by providing local governments the power to adopt and amend local laws not inconsistent with the State Constitution or any general law relating to their property, affairs or government. Section 42 of the New York City Charter allows that the Charter may be amended by the City Council, and in some instances, not applicable herein, by vote of the electors. Section 37 of the Municipal Home Rule Law provides that a city charter may be amended by voter initiative as an alternative to legislative enactment.

As petitioners concede, the Charter is silent on the question of whether the Council may amend or repeal a local law enacted by voter initiative. Petitioners further acknowledge that there is no explicit statutory or constitutional limitation on the Council's general authority to amend the Charter by local law (see Municipal Home Rule Law, § 37; N.Y. City Charter, §§ 27, 34, 42), for the reason that it was originally voter initiated. Rather, they argue that the Council implicitly lacks the power to amend section 440 of the Charter, previously enacted by the voters. To determine otherwise, petitioners contend, will result in an abuse of power by the Council and render meaningless the voters' right to enact Charter amendments, or at the least promote a confused series of enactments and re-enactments followed by voters' initiatives and voter approval.

As the parties correctly note, a sparsity of caselaw exists in New York relating to the issue of legislative amendment of voter initiated laws. Contrary to the urging of petitioners, Halfmoon Bridge Co. v. Canal Board, 91 Misc 600, 155 N.Y.S. 602 does not provide support for their argument that the Council implicitly is without authority to amend a section of the Charter enacted by the voters. Halfmoon involved an explicit provision in the State Constitution limiting the Legislature's power to amend voter-approved legislation relating to the contracting of work and the incurrence of debt for barge canal construction.

Other jurisdictions have addressed the issue of whether legislative bodies may amend or repeal measures previously enacted by voter initiative. Some state courts have dealt with the situation presented in Halfmoon, that is, an explicit prohibition or limitation on the respective legislative bodies' right to amend or repeal laws enacted by the voter initiative (see e.g. Warren v. Thomas, 568 P.2d 400 ). ² Those courts which have reached the question of whether there is an implicit restraint on a legislative amendment or repeal of laws initiated by the voters, have split on the answer. ³

The better answer appears to be that the laws proposed and enacted by the people under an initiative provision are subject to the same constitutional, statutory and charter limitations as those passed by the legislature and are entitled to no greater sanctity or dignity (see Luker v. Curtis, 64 Idaho 703, 136 P.2d 978 ). Inasmuch as a legislative body may modify or abolish its predecessor's acts subject only to its own discretion (see e.g. Farrington v. Pinckney, 1 N.Y.2d 74, 82, 150 N.Y.S.2d 585, 133 N.E.2d 817), it likewise should be able, in the absence of an express regulation or restriction, to amend or repeal an enactment by the electorate, its co-ordinate unit, and vice versa.

In the instant case, twenty years...