Fraternal Order of Police, Newark Lodge No. 12 v. Newark, 081920 NJSC, A-15-19

Docket NºA-15-19
Opinion JudgeLaVECCHIA JUSTICE
Party NameFraternal Order of Police, Newark Lodge No. 12, Plaintiff-Appellant, v. City of Newark, Defendant-Respondent.
AttorneyMatthew D. Areman argued the cause for appellant (Markowitz & Richman, attorneys; Matthew D. Areman, of counsel and on the briefs). Avion M. Benjamin, First Assistant Corporation Counsel, argued the cause for respondent (Kenyatta K. Stewart, Corporation Counsel, attorneys; Avion M. Benjamin, of c...
Judge PanelLaVECCHIA, J., writing for the Court. CHIEF JUSTICE RABNER, dissenting, JUSTICES ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE LaVECCHIA's opinion. CHIEF JUSTICE RABNER filed a dissent. JUSTICES ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE LaVECC...
Case DateAugust 19, 2020
CourtSupreme Court of New Jersey

Fraternal Order of Police, Newark Lodge No. 12, Plaintiff-Appellant,

v.

City of Newark, Defendant-Respondent.

No. A-15-19

Supreme Court of New Jersey

August 19, 2020

Argued April 27, 2020

On certification to the Superior Court, Appellate Division, whose opinion is reported at 459 N.J.Super. 458 (App. Div. 2019).

Matthew D. Areman argued the cause for appellant (Markowitz & Richman, attorneys; Matthew D. Areman, of counsel and on the briefs).

Avion M. Benjamin, First Assistant Corporation Counsel, argued the cause for respondent (Kenyatta K. Stewart, Corporation Counsel, attorneys; Avion M. Benjamin, of counsel and on the briefs).

Daniel I. Bornstein, Assistant Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Daniel I. Bornstein, of counsel and on the briefs).

Vito A. Gagliardi, Jr., argued the cause for amicus curiae New Jersey State Association of Chiefs of Police (Porzio, Bromberg & Newman, attorneys; Vito A. Gagliardi, Jr., of counsel and on the brief, and David L. Disler, on the brief).

Lawrence S. Lustberg argued the cause for amici curiae American Civil Liberties Union of New Jersey and Newark Communities for Accountable Policing (Gibbons and American Civil Liberties Union of New Jersey Foundation, attorneys; Lawrence S. Lustberg, Michael R. Noveck, Jeanne LoCicero, and Alexander Shalom, on the briefs).

CJ Griffin submitted a brief on behalf of amici curiae New Jersey Urban Mayors Association, Latino Leadership Alliance of New Jersey, and Libertarians for Transparent Government (Pashman Stein Walder Hayden, attorneys; CJ Griffin, on the brief).

Alexis Karteron submitted a brief on behalf of amici curiae Urban League of Essex County and Junius Williams, Esquire (Rutgers Law School Constitutional Rights Clinic, attorneys; Alexis Karteron, on the brief).

LaVECCHIA, J., writing for the Court.

This appeal involves a challenge to the City of Newark's authority to create by ordinance a civilian oversight board to provide a greater role for civilian participation in the review of police internal investigations and in the resolution of civilian complaints.

Municipal Ordinance 6PSF-B (Ordinance) establishes the Civilian Complaint Review Board (CCRB or the Board), within the Office of the Mayor, to address complaints filed by citizens against the Newark Police Department and its members. The Ordinance authorizes the Board to recommend to the Public Safety Director the discipline to be imposed on individual officers. The Board's powers and responsibilities can be divided into two categories: investigative powers and policy responsibilities.

With respect to its investigative powers, the Ordinance endows the Board with subpoena power and concurrent jurisdiction with the Newark Police Department to receive and investigate complaints against the Department's members. The Board's findings of fact in its investigations are, "absent clear error," made binding on Newark's Public Safety Director, who retains final authority over discipline of the police force. The Board is also allowed to recommend the discipline to be imposed. The Ordinance confers on the Board the added power -- at the conclusion of the Newark Police Department's own investigation into an officer's behavior -- to review the findings, conclusions, and recommendations that ensue from that internal investigation.

In its policymaking capacity, the Board can recommend to city officials procedures for investigating police conduct. The Board is also tasked with a consultative role in the development of a discipline matrix by the Public Safety Director and the affected bargaining units. Further, the Ordinance directs that Newark's Division of Police and Department of Public Safety cooperate with the CCRB. Finally, the Ordinance establishes rules and procedures for the CCRB, one of which provides for the confidentiality of complainant identities. However, "[i]f the complaint is substantiated and is referred to a CCRB hearing, the complainant's identity may be released in the course of any public hearing about the alleged misconduct."

The Fraternal Order of Police, Newark Lodge No. 12 (FOP) filed a complaint claiming that the Ordinance was unlawful. Based on the record and arguments presented on cross-motions for summary judgment, the court held the Ordinance invalid and enjoined its operation in virtually all respects. The court left intact, however, the Ordinance's grant of authority to the CCRB to conduct general oversight functions, including aiding in the development of a disciplinary matrix for use by the police force.

The Appellate Division affirmed in part and reversed in part, and sustained the Ordinance as modified. 459 N.J.Super. 458, 471 (App. Div. 2019). First, the court invalidated the Ordinance's required treatment of the CCRB's investigatory findings, determining that the binding nature of the CCRB's findings, absent clear error, impermissibly "makes the CCRB's factual findings paramount to the findings of the IA department." Id. at 491-92. Second, the Appellate Division held that, facially, the Ordinance's procedures for the CCRB do not violate due process, id. at 494, and left to another day an as-applied due process challenge, id. at 495. Third, the Appellate Division rejected FOP's argument "that preemption principles invalidate the Ordinance on its face," but did invalidate the Ordinance's provision authorizing disclosure of a complainant's identity. Id. at 502, 507. Finally, on the issue of subpoena power, the Appellate Division reversed the trial court. Id. at 508.

The Court granted certification, 240 N.J. 7 (2019), and considers the Ordinance as modified by the Appellate Division.

HELD: The Ordinance is sustained subject to the Court's further modifications to comply with current legislative enactments. The Court concludes that state law permits the creation by ordinance of this civilian board with its overall beneficial oversight purpose. The Court holds that this review board can investigate citizen complaints alleging police misconduct, and those investigations may result in recommendations to the Public Safety Director for the pursuit of discipline against a police officer. In addition, the review board may conduct its oversight function by reviewing the overall operation of the police force, including the performance of its IA function in its totality or its pattern of conduct, and provide the called-for periodic reports to the officials and entities as prescribed by municipal ordinance. However, to the extent some investigatory powers that the City wishes to confer on its oversight board conflict with existing state law, the Court modifies the Appellate Division's judgment. The board cannot exercise its investigatory powers when a concurrent investigation is conducted by the Newark Police Department's IA unit. An investigation by the IA unit is a function carefully regulated by law, and such an investigation must operate under the statutory supervision of the police chief and comply with procedures established by Newark's Public Safety Director and the mandatory guidelines established by the Attorney General. Concurrent investigations would interfere with the police chief's statutory responsibility over the IA function, and the review board's separate investigatory proceedings would be in conflict with specific requirements imposed on IA investigations and their results. The Court also invalidates the conferral of subpoena power on this review board.

1. The question presented here is whether Newark has the power to legislate, by ordinance, the creation of a citizen oversight board to have a role in the review of the handling of citizens' police misconduct complaints. Municipalities in New Jersey have the power to act legislatively where such authority has been delegated by the Legislature. The three-part test set forth in Dome Realty, Inc. v. City of Paterson, 83 N.J. 212, 225-26 (1980), applies when determining the validity of challenged municipal action. (pp. 20-23)

2. The threshold issue -- whether Newark has the power to create a citizen oversight board to be involved in the review of police misconduct complaints -- implicates N.J.S.A. 40:48-2, the police powers statute, which provides in part that a municipality may make such ordinances not contrary to state or federal law "as it may deem necessary and proper for the good government, order and protection of persons and property, and for the preservation of the public health, safety and welfare of the municipality and its inhabitants"; N.J.S.A. 40A:14-118, which authorizes municipalities to establish and "provide for the maintenance, regulation and control" of a police force as part of the executive function of local government and further authorizes the appointment of a chief of police with statutorily designated responsibilities; and N.J.S.A. 40A:14-181, which directs locally created law enforcement agencies to adopt procedures for the investigation of complaints of police misconduct consistent with guidelines issued by the State's chief law enforcement officer: the Attorney General. The Court analyzes each statute. In applying the three-part test set forth in Dome Realty to determine the validity of the municipal action challenged in this case, the Court finds the first and second prongs are not the significant issues: there is no constitutional impediment to municipal action that is claimed here, and the broad police powers statute presents legislatively delegated authority to permit municipalities to create an oversight board. Whether the City can create a citizen oversight board at all, and whether it can do so in the form it has enacted, arises under the...

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