Lowry v. City of Cleveland
| Decision Date | 12 December 1972 |
| Docket Number | No. 912253,912253 |
| Parties | , 63 O.O.2d 32, 65 O.O.2d 29 Martin P. LOWRY, Plaintiff, v. CITY OF CLEVELAND et al., Defendants. |
| Court | Ohio Court of Common Pleas |
Richard R. Hollington, Law Director, Howard H. Fishkin, Nicholas M. Devito, Richard Bloomfield, City of Cleveland, Department of Law, Cleveland, for defendants.
This case presents issues which unfortunately grow out of differences which have occurred between allies engaged in the war on crime that is being carried on in this community.
The need for the exertion of greater efforts by all persons in public service who are involved with the prevention and deterrence of crime and the apprehension and speedy prosecution of criminals should be obvious. The so-called 'person to person' or 'stranger to stranger' type of crime-much of a violent nature-has skyrocketed in recent years. This is graphically portrayed in the copy of the City of Cleveland Exhibit 'B' which is herein attached to this Opinion. This-although not to scale-shows that although the population of Cleveland has decreased by 125,047 persons from 1961 to 1971 that there has been a numerical increase of three and one-half times the number of homicides, ten times the number of rapes, five times the number of narcotics arrests, three and one-half times the number of burglaries and over seven and one-half times the number of cars stolen. It is appalling-even to a Court that has daily contact with matters involving crime and criminals-to hear that currently-during a period of a year's time-that one out of every 15 citizens becomes the victim of a crime.
All agencies have worked zealously in an attempt to correct this trend of increased crime and from the evidence herein have succeeded during 1972 in reversing the trend.
The courts, and chiefly the Cuyahoga County Common Pleas Court, which is charged with the responsibility of trying all felony cases, have contributed in the greatest degree to this reversal by its prompt disposal of felony cases.
In the last criminal jury trial tried to a conclusion by this court during its criminal cycle, the offense charged in the indictment occurred on September 9, 1972; the defendant was arraigned on October 25, 1972; and the trial was concluded on November 17, 1972.
Cases pending at the end of our criminal cycle have an average age of six days following arraignment.
Involved in this controversy is the executive branch of the government of the City of Cleveland and a great number of the members of its police department.
This is an action brought by the plaintiff, a Patrolman, with approximately 24 years of service in the Cleveland Police Department, and now assigned to Basic Patrol. Defendants are the City of Cleveland, Ralph J. Perk, its Mayor, and Gerald J. Rademaker, its Chief of Police. The action is brought in behalf of the plaintiff and all other members of the Cleveland Police Department who are assigned to Basic Patrol. They claim they are being unreasonably and illegally burdened with more than their share of the war on crime.
Plaintiff contends that an order issued by the Chief of Police pursuant to instructions of the Mayor is illegal, null and void and of no effect because it requires certain policemen to work in excess of 40 hours per week; that this is prohibited by Cleveland Ordinance No. 1.3522 (eff. 3-16-53); that this may only be done in case of emergency and no emergency exists. Plaintiff asks the court to enjoin the defendants from continuing the order in effect.
The court assigned this action for trial on its merits within a few days of its being filed. At the time of the trial, defendants represented to the court that the order which is the subject matter of this lawsuit is to expire at midnight on December 24, 1972.
Following is a copy of the order:
GERALD J. RADEMAKER
RECD. PTL. SENN 35
4.27 PM
11/28/72'
ORDINANCE 1.3522 is as follows:
§ 1.3522 Working Hours-Division of Police.
Except in case of emergency not to exceed eight hours shall constitute a day's work and not to exceed forty hours a week's work for any patrolman or ranking officer in the Division of Police whose salary is provided for in Section 1.3502 of this Chapter, or any member of the Division whose salary is provided for in Section 1.3503 of this Chapter.'
The authority of the Mayor and of the Chief of Police is contained in the Charter of the City of Cleveland:
§ 67 Executive and Administrative Powers.
The executive and administrative powers of the city shall be vested in the mayor, directors of departments and other administrative offices provided for in this charter or by ordinance.
§ 68 Terms and qualifications of Mayor.
The mayor shall be the chief executive officer of the city.
§ 71 General Powers and Duties of Mayor.
It shall be the duty of the mayor to act as chief conservator of the peace within the city; to supervise the administration of the affairs of the city; to see that all ordinances of the city are enforced; to recommend to the council for adoption such measures as he may deem necessary or expedient; to keep the council advised of the financial condition and future needs of the city; to prepare and submit to the council such reports as may be required by that body, and to exercise such powers and perform such duties as are conferred or required by this charter or by the laws of the state.
§ 115 General Provisions.
The city shall maintain a police force and fire force, and the mayor shall be executive head of both forces. If these forces are or shall be placed in a department in accordance with the provisions of section 77 of this charter, the director of this department shall be their executive head under the direction of the mayor.
§ 116 Police Force-Control by Chief.
The police force shall consist of a chief and such other officers, patrolmen and employees as may be provided by ordinance or resolution of the council. In case of riot or like emergency the mayor may appoint additional patrolmen and officers for temporary service who need not be in the classified service. The chief of police shall be appointed by the mayor from the division of police or he shall have had training and experience in law enforcement and he shall serve at the pleasure of the mayor. Upon the termination of his service as chief of police, he shall, if appointed from the division of police, revert to the civil service status held by him at the time of his appointment, in so far as it is competent for this Charter so to provide. The chief of police shall have exclusive control of the stationing and transfer of patrolmen and other officers and employees constituting the police force, under such rules and regulations as may be established by the mayor or by the director of the department to whom the said chief of police may be immediately responsible.
§ 196 Hours of Labor.
Except in case of extraordinary emergencies, not to exceed eight hours shall constitute a day's work and not to exceed forty-eight hours a week's work, for any city employee of the city of Cleveland in the classified service thereof, and for any workmen engaged in any public work carried on or aided by the municipality whether done by contract or otherwise. The council shall by ordinance, provide for the enforcement of the provisions of this section.
Cleveland Ordinance 1.3502 authorizes a police force of 2830 men plus the Chief. The evidence was to the effect that it currently has 2299 members.
The evidence presented in behalf of the defendants was to the effect that Cleveland was faced with the certain threat of an onslaught of 'person to person' crime during the month of December and that the protection of the citizens presented a case of emergency which necessitated the invoking of measures taken by the Mayor and Chief of Police.
Testimony was presented which was to the effect that although funds had been provided by the Federal Government for additional policemen, defendants were practically unable to hire them and assign them to duty during the month of December because of another lawsuit pending in Federal Court; that the Federal Court action was not to be heard until December 8, 1972; that this December the Growth Board was not supplying funds as they had previously done to provide additional police protection for merchants and others during the month of December; that as a result of attrition in the police department there were fewer men in the department in December, 1972, than there were in December of 1970 and 1971; that December is historically the month in which the greatest number of crimes are committed in Cleveland and that this is reflected in Cleveland Exhibit 'C' which is attached; that as of November, 1972, 47,557 crimes consisting of murder, rape, robbery, aggravated assault, burglary, larceny, auto theft, and as saults not aggravated had been committed.
Mr. Richard L. Boylan, the Director of the Impact Cities Anti-Crime program for the City of Cleveland testified that ...
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