Rochester Police Locust Club, Inc. v. City of Rochester

• Decision Date: 11 June 2021
• Docket Number: CA 20-00826,1239
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of ROCHESTER POLICE LOCUST CLUB, INC., Michael Mazzeo and Kevin Sizer, Petitioners-Plaintiffs-Respondents, v. CITY OF ROCHESTER, Lovely A. Warren, as Mayor of the City of Rochester, et al., Respondents-Defendants, and Council of City of Rochester, Respondent-Defendant-Appellant.

196 A.D.3d 74

148 N.Y.S.3d 794

In the Matter of ROCHESTER POLICE LOCUST CLUB, INC., Michael Mazzeo and Kevin Sizer, Petitioners-Plaintiffs-Respondents,

v. CITY OF ROCHESTER, Lovely A. Warren, as Mayor of the City of Rochester, et al., Respondents-Defendants,andCouncil of City of Rochester, Respondent-Defendant-Appellant.

1239

CA 20-00826

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: June 11, 2021

EMERY CELLI BRINCKERHOFF & ABADY, LLP, NEW YORK CITY (ANDREW G. CELLI, JR., OF COUNSEL), FOR RESPONDENT-DEFENDANT-APPELLANT.

TREVETT CRISTO P.C., ROCHESTER (DANIEL P. DEBOLT OF COUNSEL), FOR PETITIONERS-PLAINTIFFS-RESPONDENTS.

KEVIN R. BRYANT, CORPORATION COUNSEL, KINGSTON, FOR CITY OF KINGSTON, AMICUS CURIAE.

MICHAEL SISITZKY, NEW YORK CITY, FOR NEW YORK CIVIL LIBERTIES UNION FOUNDATION, AMICUS CURIAE.

PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, TROUTMAN, AND BANNISTER, JJ.

OPINION AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the fourth decretal paragraph and as modified the judgment is affirmed without costs.

Opinion by NeMoyer, J.:

The Rochester City Charter has been amended to grant virtually all authority for disciplining police officers to a new entity called the "Police Accountability Board" (see Local Law No. 2 [2019] of the City of Rochester). The politics swirling around this provision are weighty and fraught, but its legality is not. Local Law No. 2 is invalid insofar as it takes police discipline outside the realm of collective bargaining.

FACTS

In 2019, Local Law No. 2 was adopted by respondent-defendant Council of City of Rochester (City Council) and approved by the voters at a referendum. Local Law No. 2 created the Police Accountability Board (PAB) as a body consisting of nine Rochester residents. Current and former Rochester police officers are permanently barred from serving on PAB, as are all immediate family members of a current or former Rochester police officer. Local Law No. 2 also bars the appointment of more than one PAB member that has, or is related to someone that has, any form of law enforcement experience.

Conversely, four PAB members must be appointed from a list compiled by an "Executive Committee" of 53 groups called the "Alliance." The constituent members of this "Alliance" are mostly unincorporated entities, but they also include certain political parties and specific religious organizations. Local Law No. 2 specifies no procedure for selecting the individual members of the "Executive Committee" through which the "Alliance" constructs its nominating list, nor is there any specified procedure for updating the constituent members of the "Alliance." Relatedly, Local Law No. 2 prohibits the removal of any PAB member without a majority vote of his or her fellow members.

Local Law No. 2 vests PAB with exclusive authority to conduct disciplinary hearings for police officers accused of misconduct and to decide whether the accused officer is guilty. The complainant, but not the accused officer, is granted a right to appeal certain rulings by a PAB panel to the full board. If PAB convicts an officer of misconduct, it imposes punishment. The Chief of Police (police chief or chief) is explicitly obligated by Local Law No. 2 to execute PAB's decreed discipline without reduction or reprieve. The only discretion retained by the police chief in disciplinary matters is the power to impose additional punishment above that imposed by PAB.

There is no dispute that the police-discipline process created by Local Law No. 2 was never subject to collective bargaining and is irreconcilable with the police-discipline process set forth in the governing collective bargaining agreement. Petitioners-plaintiffs (plaintiffs) – the Rochester police union, its president, and an individual Rochester police officer – therefore commenced this hybrid CPLR article 78 proceeding and declaratory judgment action against, among others, respondents-defendants City of Rochester (City), Lovely A. Warren as Mayor of the City of Rochester (Mayor), and the City Council. Insofar as relevant here, the petition (complaint) alleged that, by transferring virtually all disciplinary authority to PAB in the absence of collective bargaining and in contravention of the terms of the governing collective bargaining agreement, Local Law No. 2 violated the Taylor Law (Civil Service Law art 14). The complaint further alleged that Local Law No. 2 violated Civil Service Law § 75 and McKinney's Unconsolidated Laws of NY § 891 by empowering PAB to hear and adjudicate disciplinary charges against police officers. As a remedy, plaintiffs sought, inter alia, a declaration that Local Law No. 2 was invalid insofar as it transferred disciplinary authority to PAB.

Supreme Court agreed with plaintiffs and held that Local Law No. 2 violated the Taylor Law, Civil Service Law § 75, and Unconsolidated Laws § 891. The court therefore declared that "those portions of Local Law No. 2 which authorize and empower [PAB] to conduct disciplinary hearings and discipline officers of the City of Rochester Police Department are determined and declared to be invalid, void and unenforceable." The court also sua sponte "referred [Local Law No. 2] back to the Rochester City Council to be reconciled and made compliant with New York State law and the Rochester City Charter."

The City Council now appeals. Neither the Mayor nor the City itself has appealed, however.

DISCUSSION

I

Two preliminary technical issues require some brief discussion.

First , although this case was filed as a hybrid CPLR article 78 proceeding and declaratory judgment action, it is actually proper only as a declaratory judgment action (see Parker v. Town of Alexandria , 138 A.D.3d 1467, 1467-1468, 31 N.Y.S.3d 717 [4th Dept. 2016] ; Centerville's Concerned Citizens v. Town Bd. of Town of Centerville , 56 A.D.3d 1129, 1129, 867 N.Y.S.2d 626 [4th Dept. 2008] ). The gravamen of plaintiffs’ lawsuit is that Local Law No. 2 is invalid in certain key aspects, and "it is well established that an article 78 proceeding is not the proper vehicle to test the validity of a legislative enactment" ( Kamhi v. Town of Yorktown , 141 A.D.2d 607, 608, 529 N.Y.S.2d 528 [2d Dept. 1988], affd 74 N.Y.2d 423, 548 N.Y.S.2d 144, 547 N.E.2d 346 [1989] ).

Second , plaintiffs’ decision to name the City Council as a party in this action obviates any need to examine whether that legislative body has the capacity to take an appeal for the purpose of defending a law that the executive branch has abandoned (see generally Virginia House of Delegates v. Bethune-Hill , ––– U.S. ––––, 139 S. Ct. 1945, 1949-1956, 204 L.Ed.2d 305 [2019] ; United States v. Windsor , 570 U.S. 744, 755-763, 133 S.Ct. 2675, 186 L.Ed.2d 808 [2013] ; I.N.S. v. Chadha , 462 U.S. 919, 939-940, 103 S.Ct. 2764, 77 L.Ed.2d 317 [1983] ; cf. Hernandez v. State of New York , 173 A.D.3d 105, 110, 99 N.Y.S.3d 795 [3d Dept. 2019] ). After all, capacity is a waivable objection that does not implicate our subject matter jurisdiction to entertain an appeal, and by naming the City Council as a party to this action, plaintiffs waived any challenge to that body's capacity to appeal from the resulting judgment that now aggrieves it (see Matter of County of Chautauqua v. Shah , 126 A.D.3d 1317, 1320, 6 N.Y.S.3d 334 [4th Dept. 2015], affd 28 N.Y.3d 244, 44 N.Y.S.3d 326, 66 N.E.3d 1044 [2016] ).

We now reach the merits of plaintiffs’ challenges to Local Law No. 2.

II

The Legislature re-chartered the City of Rochester in 1907 (see L 1907, ch 755). At that time, all municipalities – with the possible exception of the City of Albany – were subject to Dillon's Rule, the well-known common law principle by which, among other things, municipalities could not vary their structure or powers without State approval (see 1894 NY Const, art III, §§ 26, 27; art X, § 2 ; art XII, §§ 1, 2 ; see generally Olesen v. Town of Hurley , 691 N.W.2d 324, 328 n. 6 [S.D. 2004] ["Judge Foster Dillon was a late nineteenth century Iowa jurist and government law scholar. The appellation ‘Dillon's Rule’ is derived from two cases he authored"]; David C. Hammack, Reflections on the Creation of the Greater City of New York and Its First Charter, 1898 , 42 NY L Sch L Rev 693, 698-700 [1998] ).¹ As a result of an amendment to the State Constitution in 1923 and the Legislature's subsequent adoption of the former City Home Rule Law (L 1924, ch 363), Dillon's Rule was relaxed somewhat to allow cities to amend their own charters in certain respects without State approval (see generally Matter of Warden [Police Dept. of City of Newburgh] , 300 N.Y. 39, 41-43, 88 N.E.2d 360 [1949] ; Johnson v. Etkin , 279 N.Y. 1, 4-5, 17 N.E.2d 401 [1938] ; Van Orman v. Slade , 126 A.D.2d 282, 284-285, 513 N.Y.S.2d 867 [3d Dept. 1987] ). And in 1964, the voters amended the State Constitution "to expressly repudiate[ ] the prevailing ... Dillon's rule" ( City of New York v. State of New York , 76 N.Y.2d 479, 491 n. 4, 561 N.Y.S.2d 154, 562 N.E.2d 118 [1990] ). Consequently, municipalities may now adopt local laws – including charter revisions – governing "the removal of [their] employees, subject to the requirement of consistency with the Constitution and general laws" ( Matter of Gizzo v. Town of Mamaroneck , 36 A.D.3d 162, 165, 824 N.Y.S.2d 366 [2d Dept. 2006], lv denied 8 N.Y.3d 806, 832 N.Y.S.2d 488, 864 N.E.2d 618 [2007] ; see NY Const, art IX, § 2 [c] [ii] [1]; Municipal Home Rule Law § 10 [1] [i], [ii] [a] [1] ; [c] [1]; see generally Municipal Home Rule Law § 2 [5] [defining "general law" as any "state statute which in terms and in effect applies alike to all [municipalities or types thereof]"]).

As enacted by the Legislature, the Rochester City Charter of 1907 granted the Commissioner of Public Safety the sole and exclusive power to discipline police officers and firefighters (see L 1907, ch 755, § 330 [entitled "charges and trials of policemen and firemen"]). The...