Greenwald v. Frank

• Decision Date: 03 February 1975
• Citation: 363 N.Y.S.2d 955,47 A.D.2d 628
• Parties: , 10 Empl. Prac. Dec. P 10,584 In the Matter of Daniel E. GREENWALD, Petitioner, v. Louis J. FRANK, Commissioner of Police of the County of Nassau, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 955

363 N.Y.S.2d 955

47 A.D.2d 628, 10 Empl. Prac. Dec. P 10,584

In the Matter of Daniel E. GREENWALD, Petitioner, v. Louis J. FRANK, Commissioner of Police of the County of Nassau, Respondent.

Supreme Court, Appellate Division, Second Department.

Feb. 3, 1975.

Richard Hartman, Mineola (Allan R. Morganstern, Mineola, of counsel), for petitioner.

John F. O'Shaughnessy, County, Atty., Mineola (Louis Schultz, Natale C. Tedone and William S. Norden, Mineola, of counsel), for respondent.

Before HOPKINS, Acting P.J., and LATHAM, COHALAN, BRENNAN and SHAPIRO, JJ.

Proceeding pursuant to article 78 of the CPLR to review respondent's determination which adjudged petitioner guilty of certain charges and imposed a penalty.

Determination confirmed and petition dismissed on the merits, with costs. No opinion.

HOPKINS, Acting P.J., and LATHAM, COHALAN and BRENNAN, JJ., concur.

SHAPIRO, Justice, dissents, and votes to annul the determination and remand the proceeding to Special Term for a hearing, with the following memorandum:

This is a proceeding pursuant to article 78 of the CPLR to review the determination of respondent Commissioner of Police of Nassau County finding petitioner, Greenwald, guilty of violation of two articles of the Rules and Regulations of the Nassau County Police Department and fining him one day's pay on the first charge and three days' pay on the second charge. This court is confirming that determination. I dissent.

The petitioner brought a prior article 78 proceeding, in his individual capacity as a member of the Police Department of Nassau County and as president of the Nassau County Patrolmen's Benevolent Association, the certified bargaining agent for all members of the Nassau County Police Department, to annul and cancel rule 22 of article VIII of the Rules and Regulations of the Nassau County Police Department, one of the two rules which he has been found guilty of violating. The portion of rule 22 he there attacked provided:

'Personal appearance * * * Male personnel shall comply with the following grooming standards unless excluded by their Commanding Officer due to special assignment:

Sideburns--Sideburns shall not extend below the mid part of the ear and shall be trimmed level.

Moustaches--A short and neatly trimmed moustache may be worn, but not extend over the top of the upper lip or beyond the corners of the mouth.

Beards, Goatees--Male personnel shall be clean shaven when reporting for duty. Beards or goatees shall not be worn while on duty. A growth of whiskers shall be permitted while on duty for medical reasons only when approved by the Chief Surgeon.'

Petitioner's contention in that proceeding was that rule 22 was an arbitrary, capricious and unreasonable restriction on his personal choice of appearance, interfered with his personal life while off duty and was in violation of his statutory and constitutional rights.

That proceeding, which, upon the parties' stipulation, was treated as an action for a declaratory judgment, resulted in a ruling adverse to petitioner by the majority of this court, which, on October 30, 1972, declared (Matter of Greenwald v. Frank, 40 A.D.2d 717, 337 N.Y.S.2d 225):

'The rationale of the modest regulation in question, concerning personal appearance, setting forth rules as to haircuts, sideburns, mustaches and beards, is that there should be neatness and discipline in a large quasi-military organization such as the Nassau County Police Department so that the general public will have respect for the members of the Department. In our opinion this regulation does not raise issues which rise to the dignity of constitutional questions.'

I dissented in a memorandum in which, Inter alia, I stated that 'there is a constitutional right to determine one's own personal appearance and that, therefore the State bears the burden of establishing substantial justification for any regulation it may impose which limits that right * * *' (Id., p. 719, 337 N.Y.S.2d p. 228).

On May 30, 1973 our Court of Appeals affirmed this court's ruling without opinion (Id., 32 N.Y.2d 862, 346 N.Y.S.2d 529, 299 N.E.2d 895). Thereafter, on August 22, 1973, the United States Court of Appeals for the Second Circuit, in Dwen v. Barry, 483 F.2d 1126, had occasion to consider the Suffolk County Police Department grooming rules which, for all practical purposes, are the same as those in effect in Nassau County. In reversing the District Court's dismissal of plaintiff's complaint, the United States Court of Appeals rejected the view that rules as to haircuts, sideburns, mustaches and beards are proper for discipline in a police organization, saying (p. 1129):

'Discipline although essential to an effective police force as it is to the military is clearly of a different type. Instant unquestioning obedience has been found essential to a soldier in action and his training and its attendant discipline is designed to develop such obedience. The same type of instant unquestioning obedience is not necessary for an effective police force. See Greenwald v. Frank, Supra, 40 A.D.2d 717, 721, 337 N.Y.S.2d at 231--232 (Shapiro, J. dissenting); cf. Orloff v. Willoughby, Supra, 345 U.S. (83) at 94, 73 S.Ct. 534, 97 L.Ed. 842. Rather it has been suggested that the S.Ct. 534, 97 L.Ed. 842. Rather it has been suggested that the military model of organization and discipline must not be followed too closely as a policeman unlike a soldier frequently acts individually on his own initiative and not subject to the immediate supervision of his superiors. See W. Lee, A History of Police in England at 401--402.'

On the question of whether such a grooming regulation raises issues of a constitutional dimension, the United States Court of Appeals said (p. 1130):

'While it has been argued that hair length controversies are much ado about nothing, we think there is a substantial constitutional issue raised by regulation of the plaintiff's hair length. The question is whether the government may interfere with the physical integrity of the individual and require compliance with its standard of personal appearance without demonstrating some legitimate state interest reasonably requiring such restriction on the individual.

The first, third, fourth, seventh and eighth circuits have held that the Constitution limits the state's right to regulate the personal appearance of its citizens. We agree.'

The opinion then concluded (pp. 1130--1131):

'We hold only that choice of personal appearance is an ingredient of an individual's personal liberty, and that any restriction on that right must be justified by a legitimate state interest reasonably related to the regulation. Here the department has failed to make the slightest showing of the relationship between its regulation and the legitimate interest it sought to promote. * * * In the absence of the requisite justification by the department, dismissal of the complaint under Rule 12(b)(6) was in error. Nor would summary judgment on the affidavit submitted be justified since a genuine issue was presented for trial. We imply no views on the merits. We indicate simply that, at trial, the Commissioner has the burden of establishing a genuine public need for the regulation' (emphasis supplied).

Despite that decision by a highly respected Federal appeals court having jurisdiction in the geographical area in which respondent is located, as to the existence of a constitutional question with regard to the validity of a regulation closely analogous to that which is attacked in the instant proceeding, petitioner was, nevertheless, on February 21, 1974 charged with violation of rule 22 of article VIII (the grooming provision) and rule 9 of article VI of the Rules and Regulations of the Nassau County Police Department. Rule 9 is a catch-all provision which reads in pertinent part:

'Rule 9. Members of the Force or Department shall:

1. Promptly obey all lawful orders, instructions, directions, and requests of Superior Officers.'

The February 21 charges arose out of petitioner's refusal on January 7, 1974, despite direct orders of his superior officer, to trim his mustache so that it would not extend below his upper lip and beyond the ends of his mouth.

On April 15, 1974, after an interdepartmental trial held on March 20, 1974, respondent found petitioner guilty as charged and fined him one day's pay on the first charge, violation of rule 22, and three days' pay on the second charge, violation of rule 9 (subd. 1) of article VI.

On May 30, 1974, Chief Judge Mishler of the United States District Court for the Eastern District of New York, upon remand in the Dwen case, after a hearing (No. 71 C 1020), held that the Commissioner of the Suffolk County Police Department had 'failed to establish a legitimate state interest requiring' the restrictions imposed by its grooming standards rule on members of the police department and declared the rule to be 'an arbitrary limitation and purposeless restraint' which 'is violative of the Due Process Clause of the Fourteenth Amendment and therefore unconstitutional.' He there-upon declared the rule void and of no effect and permanently enjoined the Suffolk County Police Commissioner from enforcing the rule.

It is on the ruling of the United States Court of Appeals in Dwen and that of Judge Mishler upon remand in that case that petitioner relies for his contention that the grooming regulation is unconstitutional and therefore invalid. We are faced, therefore, in dealing with petitioner's contention, with the need to determine what the effect is on our ruling and its affirmance by our Court of Appeals of the subsequent and contrary...