Cassese v. Katz , 26 A.D.2d 248 ( 1966 )

Per Curiam.

These are two appeals, as quite fully set forth in the dissenting opinion, from a judgment and order which in essence upheld the validity of petitions seeking to amend the New York City Charter by submitting to the electorate at the next general election two local laws purporting to establish certain procedures for the handling of civilian complaints against members of the Police Department.

Material to the disposition of these appeals is the effect to be given Matter of Astwood v. Cohen (291 N. Y. 484). The proposed local law there considered purported to amend the Charter of the City of New York so as to provide for the payment of a salary bonus to the uniformed members of the Police and Fire Departments. In holding that the proposed local law was not an amendment within the meaning of section 19-a of the City Home Rule Law (predecessor of section 37 of the Municipal Home Rule Law), the Court of Appeals stated (p. 489): “ Granting a salary bonus to city employees is quite unrelated to any provision of the New York City Charter and the grant proposed in no sense alters or changes any provision contained in the Charter.” Judge Loitghbau, dissenting (p. 491), was of the view that when used without restriction “ the word ‘amendments ’ is to be taken to include not only corrections or alterations of an antecedent text but also additions wholly alien thereto.”

The opinions in Astwood were filed on January 6, 1944. At that time the City Home Rule Law contained no definition of the term ‘ ‘ charter amendment. ’ ’ Such a definition was supplied in April, 1944, when sections 2 and 19-a of the City Home Rule Law were amended. These amendments were considered by the Court of Appeals in Matter of Warden (Newburgh Police Dept.) (300 N. Y. 39, 42-43), where they are set forth as follows: ‘ ‘ The amendment to section 2 added a new subdivision 5 in these words: ‘ (5) the term “ charter amendment ” means any change in an existing charter presented as snch under authority of this chapter or any charter or state statute. A charter amendment may be of any extent and may deal with any number of subjects. A proposal presented as a charter amendment shall not be rejected as such on the ground that it constitutes a new charter. ’ (L. 1944, ch. 602.) The amendment to section 19-a made that section applicable to a local law amending a city charter ' however extensively’. (L. 1944, ch. 602.) ”

After considering the relevance of the Astwood case to the issues before it, the opinion in Warden, Chief Judge Loughrau now writing for a unanimous court, continued (p. 43):

“ Whether the above 1944 amendments to the City Home Buie Law permit additions to a short-form charter of matters unrelated to existing provisions thereof is a question which is not here presented.

“ The second objection of the taxpayer — that the power to fix salaries is administrative rather than legislative in character and hence is not subject to the power of referendum — can be shortly disposed of. The above amendments to the City Home Buie Law now make such a distinction entirely inadmissible as a reason for invalidating a charter amendment proposed to be made by a local law.”

The 1944 amendments to the City Home Buie Law, with certain changes not material here, have been carried forward into sections 2 and 37 of the Municipal Home Buie Law. Accordingly, as we read the opinions of the Court of Appeals, it would appear that the short-form charter of the City of New York may be validly amended by the procedure of initiative and referendum if the proposed local law, whether of a “ legislative ” or ‘‘ administrative ’ ’ character, alters or changes any provision contained in the charter, although it would appear to be an open question whether additions to the charter unrelated to its existing provisions may be accomplished by such procedure.

In our opinion no resolution of this question is required by the instant litigation, for it seems plain that each of the two proposals has a direct relation to, and would alter or change, existing charter provisions. Section 434 of the charter provides that the Police Commissioner shall have cognizance and control of the government, administration, disposition and discipline of the Police Department and of the police force. Sections 1102, 1103 and 1105 grant the Commissioner, as head of his department, a panoply of powers with respect to the organization of his department, the assignment of duties to his subordinates, and the making of rules and regulations for the conduct of his office and the carrying out of its powers and duties. Manifestly the two proposals are related to the authority granted to the Commissioner by the provisions of the charter and alter or change them by restricting his authority. For under the Cassese proposal the Commissioner may not establish a review board unless every member is a regularly appointed full-time administrative employee of the Police Department; and under the Monplaisir proposal the Commissioner may not establish such a board unless every member is a Deputy Commissioner appointed pursuant to section 432 of the charter.

It is to be noted also that the Monplaisir proposal provides that no board for the review of civilian complaints against policemen who allegedly have abused their authority or used unnecessary force may be established by any city officer unless each member thereof is a Deputy Police Commissioner; and that the Cassese proposal provides: “ Neither the Mayor, the Commissioner, nor any other administrator or officer of the City of New York shall have power to authorize any person, agency, board or group to receive, to investigate, to hear, or to require or recommend action upon, civilian complaints against members of the Police Department except as provided in this section.” Such provisions would seem to modify the express powers of the Mayor and the Commissioner of Investigation (see §§ 3, 8, and 803-805 of the charter).

We conclude, accordingly, that the dispositions below should be affirmed. In doing so we have not overlooked the apprehensions voiced in the dissenting opinion concerning the harmful possibilities to which the initiative and referendum procedure may lend itself. But the point, it seems to us, should be properly addressed to the electorate and the Legislature.

The parties have not argued, and therefore we do not consider, whether the proposed local laws restrict any constitutionally guaranteed right of petition by citizens.

The judgment and order respectively entered on or about August 12, 1966 should each be affirmed, without costs and without disbursements to any party.