Newark Validly Constituted a Civilian Complaint Review Board, But the Supreme Court Cuts Back That Board’s Powers

Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark, 244 N.J. 75 (2020). [Disclosure: My firm, Lite DePalma Greenberg, LLC, represents the City of Newark in various matters but had no involvement in this case].

By ordinance, the City of Newark established a Civilian Complaint Review Board (“CCRB”) to (as Justice LaVecchia put it in her majority opinion for the Supreme Court) “”increase police accountability and create stronger relationships between the community and the police.” That was done in the context of a consent decree between Newark and the United States Department of Justice, which had sued the City, asserting that the City’s police had deprived citizens of rights protected by the federal Constitution and laws. Other municipalities across the nation have created CCRB’s, but those entities are not necessary “alike in their genesis, their roles, or the legal landscape in which they arose and are controlled.”

Plaintiff police union (“FOP”) filed suit seeking to void the ordinance establishing the CCRB. On cross-motions for summary judgment, the Law Division invalidated the ordinance and “enjoined its operation in virtually all respects.” Among other things, the court found the ordinance to be in conflict with N.J.S.A. 40A:14-118 “because it inappropriately authorized the CCRB to ‘file a complaint against an officer and conduct the investigation,’ which is a power reserved to the police chief” under that statute.

The City appealed, and the Appellate Division modified the ordinance and held that, as modified, the ordinance complied with N.J.S.A. 40A:14-118. The FOP obtained Supreme Court review. The Court voted 6-1 to modify the Appellate Division’s decision. In an opinion by Justice LaVecchia, the majority sustained the ordinance but further modified it to take away certain powers from the CCRB, on the ground that the grant of those powers conflicted with state statute. For the second day in a row, Chief Justice Rabner was the lone dissenter. He would have upheld the ordinance as modified by the Appellate Division.

The Court majority stated that the CCRB was validly empowered to create a CCRB as an oversight body. The CCRB can validly investigate complaints of police misconduct and recommend to the Public Safety Director that a police officer be disciplined. But the CCRB cannot, the majority said, conduct an investigation when the Police Department’s Internal Affairs (“IA”) unit, as that would interfere with the police chief’s statutorily-assigned responsibility over IA functions. Nor was it proper for the City Council to delegate its subpoena power to the CCRB. Again, state statute does not permit that. Justice LaVecchia noted, however, that the Council retains its own subpoena power and could exercise that power pursuant to an oversight report from the CCRB as to the totality of the performance of IA, a report that the ordinance allows and the Court upheld.

It is likely that few if any of the stakeholders in this dispute are satisfied with the outcome of this case. There may be more developments to come, by legislation or otherwise and, also likely, more litigation following those developments.