Amicus Curiae Brief — City of Newark, New Jersey, Petitioner v. Fraternal Order of Police, Newark Lodge No. 12

No. 20-989

IN THE

Supreme Court of the United States

————

CITY OF NEWARK,

v.

Petitioner,

FRATERNAL ORDER OF POLICE,

NEWARK LODGE NO. 12,

Respondent.

————

On Petition for Writ of Certiorari to the

New Jersey Supreme Court

————

BRIEF OF AMICUS CURIAE JERSEY CITY

POLICE OFFICERS BENEVOLENT

ASSOCIATION IN SUPPORT OF RESPONDENT

————

JAMES M. METS

Counsel of Record

BRIAN J. MANETTA

NICHOLAS P. MILEWSKI

METS SCHIRO & MCGOVERN, LLP

555 U.S. Highway 1 South

Suite 320

Iselin, New Jersey 08830

(732) 636-0040

jmets@msmlaborlaw.com

Counsel for Amicus Curiae,

Jersey City Police Officers

Benevolent Association

March 29, 2021

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

ii

INTEREST OF THE AMICUS CURIAE ............

1

SUMMARY OF THE ARGUMENT ....................

2

ARGUMENT ........................................................

4

THE PETITION MUST BE DENIED BECAUSE

THE NEW JERSEY SUPREME COURT HAS

PROPERLY DECIDED THIS MATTER

BASED ON STATE LAW ....................................

4

CONCLUSION ....................................................

20

(i)

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Dome Realty, Inc. v. City of Paterson,

83 N.J. 212 (1980) .....................................

13

Durley v. Mayo,

351 U.S. 277 (1956) ...................................

5

Fraternal Order of Police, Newark

Lodge No. 12 v. City of Newark,

244 N.J. 75 (2020) ....................................passim

Fraternal Order of Police, Newark

Lodge No. 12 v. City of Newark,

459 N.J. Super. 458 (App. Div. 2019) .......

8

Groppi v. Wisconsin,

400 U.S. 505 (1971) ...................................

9

Henry v. Rahway State Prison,

81 N.J. 571 (1980) .....................................

17

Honeyman v. Hanan,

300 U.S. 14 (1937) .....................................

5

Hortonville Joint Sch. Dist., No. 1 v.

Hortonville Educ. Ass’n,

426 U.S. 482 (1976) ...................................

3, 9

Illinois v. Gates,

462 U.S. 213 (1983) ...................................

2, 7

In re Shain,

92 N.J. 524 (1983) .....................................

15

Kingsley Pictures Corp. v. Regents,

360 U.S. 684 (1959) ...................................

9

Lynch v. People of New York

ex rel. Pierson,

293 U.S. 52 (1934) .....................................

5, 6

iii

TABLE OF AUTHORITIES—Continued

Page(s)

McGoldrick v. Compagnie Generale

Transatlantique,

309 U.S. 430 (1940) ...................................

6, 7

Rivell v. Civil Service Comm’n,

115 N.J. Super. 64 (App. Div. 1971) .........

17

STATUTES

28 U.S.C. § 1257 ...........................................

4, 5

N.J.S.A. 11A:2-13 .......................................... 9, 18

N.J.S.A. 11A:2-15 .........................................

18

N.J.S.A. 40:48-2 .................................... 3, 8, 10, 13

N.J.S.A. 40A:14-118........................................ passim

N.J.S.A. 40A:14-147......................................... 9, 18

N.J.S.A. 40A:14-150 .....................................

18

N.J.S.A. 40A:14-181 ...................................... passim

N.J.S.A. 52:17B-101 .....................................

11

OTHER AUTHORITIES

New Jersey Office of the Attorney General,

Internal Affairs Policy and Procedures,

August 2020 version ....................... 2, 12, 17, 18

N.J. A.B. No. 4656 (Sept. 17, 2020) .............

15

N.J. S.B. No. 2973 (Sept. 24, 2020) ..............

14

INTEREST OF THE AMICUS CURIAE1

Amicus curiae, Jersey City Police Officers Benevolent

Association, (hereinafter, “POBA”) is a public sector

labor union that serves as the exclusive negotiations

representative for more than seven hundred nonsupervisory sworn Police Officers employed by the

City of Jersey City (hereinafter, “Jersey City”). The

POBA and its members have a substantial interest in

ensuring that investigations into police officer conduct

are performed in a uniform and consistent manner as

required by the statutory and common law of the State

of New Jersey. The New Jersey Supreme Court’s

decision in Fraternal Order of Police, Newark Lodge

No. 12 v. City of Newark, 244 N.J. 75 (2020), strikes an

appropriate balance between the City of Newark’s

(hereinafter, “Newark” or “Petitioner”) asserted goal of

improving oversight of its police department through

the creation of a civilian complaint review board

(hereinafter, “CCRB”) while maintaining the integrity

of the department’s internal affairs process.

This case concerns Amicus because Jersey City, like

Newark, seeks to pass an ordinance implementing a

CCRB. Thus, the outcome of this case will directly

affect the POBA and its members.

1

Pursuant to Supreme Court Rule 37.2, the parties were

notified more than 10 days prior to the filing of this brief. Blanket

letters of consent to file amicus curiae briefs have been filed by

the parties with the Clerk of the Court pursuant to Supreme

Court Rule 37.3. Pursuant to Supreme Court Rule 37.6, counsel

for Amicus states that no counsel for a party authored this brief

in whole or in part, and that no person other than Amicus, its

members, or its counsel made a monetary contribution to the

preparation or submission of this brief.

2

In New Jersey, the internal affairs function of

municipal, county, and higher education law enforcement

agencies is governed by the Internal Affairs Policy

and Procedures (hereinafter, “IAPP”) promulgated by

the State’s Attorney General. Pursuant to N.J.S.A.

40A:14-181, the IAPP has been given the force of

law. Discipline and disciplinary procedures for law

enforcement officers are established by statutory and

common law. The statutory requirements provide for

an orderly and consistent means of discipline. The

POBA has an interest in ensuring that its members

are investigated and disciplined in a manner consistent with New Jersey law. Accordingly, Amicus

files this brief in support of Respondent, Fraternal

Order of Police, Lodge No. 12 (hereinafter, “FOP”), in

this matter.

SUMMARY OF THE ARGUMENT

This Honorable Court should not grant Newark’s

Petition for Writ of Certiorari in this matter. The New

Jersey Supreme Court’s decision in Fraternal Order

of Police, Newark Lodge No. 12 v. City of Newark,

244 N.J. 75 (2020) was properly decided based on

applicable New Jersey statutory and common law.

Petitioner and its supporting Amicus, Jersey City,

attempt to create federal constitutional issues out of

whole cloth, which were not argued below and are

an after-the-fact attempt to invoke the jurisdiction of

this Court. This Court need not consider Petitioner’s

federal claims that were not addressed or properly

presented to the New Jersey Supreme Court (hereinafter,

“NJSC”). Illinois v. Gates, 462 U.S. 213, 217-219 (1983).

Accordingly, this Honorable Court must deny the Petition.

The NJSC properly limited the power of Newark’s

CCRB in accordance with the statutory and common

law of the State. This Court is bound to accept the

3

interpretation of New Jersey law by the NJSC.

Hortonville Joint Sch. Dist., No. 1 v. Hortonville Educ.

Ass’n, 426 U.S. 482, 488 (1976). As New Jersey’s

highest court properly recognized, N.J.S.A. 40:48-2

provides a broad grant of police power to municipalities. Fraternal Order of Police, Newark Lodge No. 12,

244 N.J. at 102. This broad grant of power was

sufficient to support the creation of the CCRB. Id. at

103. However, N.J.S.A. 40A:14-181 does not permit

the CCRB to conduct concurrent investigations with

a department’s internal affairs unit. Id. at 106.

Similarly, the statutory and common law of New

Jersey does not permit a municipal governing body to

delegate its subpoena power to the CCRB. Id. at 112.

These issues involve New Jersey law and the NJSC’s

decision was based solely on its interpretation of New

Jersey law.

Despite never raising federal constitutional issues

below, Petitioner and its supporting Amicus, Jersey

City, argue that this case is about the “unconstitutionally disparate treatment of Black and White civilians

by police, and which stakeholders get to participate in

crafting a solution.” Amicus recognizes that this is a

significant matter that must be addressed, however,

that is not what this case is about. This case concerns

whether New Jersey’s statutory scheme grants the

CCRB, a body separate and distinct from a municipal

governing body, the power to issue subpoenas and to

perform complaint-based investigations of allegations

of police misconduct concurrently with internal affairs

investigations. As the NJSC properly determined, it

does not.

As set forth more fully below, this Honorable Court

should decline to grant the Petition for Certiorari in

this matter.

4

ARGUMENT

THE PETITION MUST BE DENIED BECAUSE

THE NEW JERSEY SUPREME COURT

HAS PROPERLY DECIDED THIS MATTER

BASED ON STATE LAW.

Petitioner claims that the NJSC’s decision violates

the United States Constitution. These constitutional

claims, however, were never raised by Petitioner before

the NJSC. For this reason alone, the Petition must be

denied.

Even if this Honorable Court were to review the

merits of this case, the NJSC properly decided it based

on applicable state law. In so doing, the NJSC’s

decision ensures that internal affairs investigations

and law enforcement discipline will be administered

uniformly. Had the NJSC decided differently, law

enforcement officers throughout New Jersey would be

subject to different standards of conduct, one promulgated by their agency and one created by the CCRB.

The NJSC’s decision avoids this result. Accordingly,

this Court must not grant Newark’s Petition for

Certiorari.

1. Petitioner alleges that the NJSC’s decision violates the Equal Protection and Necessary and Proper

Clauses of the Constitution as well as the Separation

of Powers doctrine. Amicus Jersey City adds that

Newark’s Due Process Rights have been violated and

the decision is contrary to the Political Process doctrine. These claims, however, were never raised before

the NJSC. Thus, this Court should refrain from

hearing this matter.

This Court’s jurisdiction over state court decisions

derives from 28 U.S.C. §1257. The statute provides

that “[f]inal judgments or decrees rendered by the

5

highest court of a state in which a decision could be

had, may be reviewed by the Supreme Court by writ of

certiorari. . .” 28 U.S.C. §1257(a) (2021). However,

such a decision may only be reviewed “where the

validity of a statute of any State is drawn in question

on the grounds of its being repugnant to the

Constitution, treaties or laws of the United States

or where any title, right, privilege or immunity is

specially set up or claimed under the Constitution or

the treaties or statutes of, or any commission held

or authority exercised under, the United States.”

28 U.S.C. §1257(a) (2021).

It is not sufficient, however, that the matter sought

to be reviewed concerns a federal question. Rather,

the specific federal question must be pressed and

passed upon by the highest court of the state in which

a decision could be had. “It is a well-established

principle of this Court that before we will review a

decision of a state court it must affirmatively appear

from the record that the federal question was presented to the highest court of the State having

jurisdiction and that its decision of the federal question was necessary to its determination of the cause.”

Durley v. Mayo, 351 U.S. 277, 281 (1956), quoting,

Honeyman v. Hanan, 300 U.S. 14, 18 (1937); Lynch v.

People of New York ex rel. Pierson, 293 U.S. 52, 54

(1934).

In Lynch v. People of New York ex rel. Pierson,

293 U.S. 52 (1934), this Court held:

It is essential to the jurisdiction of this Court

in reviewing a decision of a court of a state

that it must appear affirmatively from the

record, not only that a federal question was

presented for decision to the highest court of

the state having jurisdiction, but that its

6

decision of the federal question was necessary

to the determination of the cause, and that it

was actually decided or that the judgment as

rendered could not have been given without

deciding it. Lynch, 293 U.S. at 54.

In McGoldrick v. Compagnie Generale Transatlantique,

309 U.S. 430 (1940), this Court stated: “But it is also

the settled practice of this Court, in the exercise of its

appellate jurisdiction, that it is only in exceptional

cases, and then only in cases coming from federal courts,

that it considers questions urged by a petitioner or

appellant not pressed or passed upon in the courts below.”

McGoldrick, 309 U.S. at 434. This Court further

explained:

In cases coming here from state courts in

which a state statute is assailed as unconstitutional, there are reasons of peculiar force

which should lead us to refrain from deciding

questions not presented or decided in the

highest court of the state whose judicial

action we are called upon to review. Apart

from the reluctance with which every court

should proceed to set aside legislation as

unconstitutional on grounds not properly

presented, due regard for the appropriate

relationship of this Court to state courts

requires us to decline to consider and decide

questions affecting the validity of state

statutes not urged or considered there. It is

for these reasons that this Court, where the

constitutionality of a statute has been upheld

in the state court, consistently refuses to

consider any grounds of attack not raised or

decided in that court. McGoldrick, 309 U.S.

at 434.

7

In Illinois v. Gates, 462 U.S. 213 (1983), this Court

acknowledged, without deciding, that the “not pressed

or passed upon below” rule may be a prudential

restriction and not a jurisdictional bar. Id. at 222.

However, the distinction was immaterial in that case

and the Court declined to decide the issue not raised

below. Id. The Court identified several reasons for

this decision. First, “questions not raised below are

those on which the record is very likely to be inadequate since it certainly was not compiled with those

questions in mind.” Id. at 221. Second, “due regard

for the appropriate relationship of this Court to state

courts requires that state courts be given an opportunity to consider the constitutionality of the action, as

well as proposed changes in existing remedies for

unconstitutional actions.” Id. at 222, citing McGoldrick,

309 U.S. at 434. Finally, by requiring that the matter

be raised in the state court, the state court is availed

of the opportunity to rest its decision on an adequate

or independent state ground. Id.

Here, the NJSC did not have the opportunity to

review and pass upon Petitioner’s claimed federal

constitutional violations because it never raised these

claims before New Jersey’s highest court. The NJSC

issued a thorough and thoughtful opinion addressing

the arguments raised by the FOP and the arguments

raised by Newark in its opposition. See Fraternal

Order of Police, Newark Lodge No. 12 v. City of

Newark, 244 N.J. 75 (2020). The only constitutional

claim raised before the NJSC was the FOP’s argument

that Newark’s Ordinance violated the due process

rights of officers, which the Court found to be

premature. Id. at 113.

The NJSC did not have the opportunity to address

any of the claims that Petitioner advances now

8

because none of those claims were raised before it.

Petitioner did not raise claimed violations of the

United States Constitution’s Equal Protection and

Necessary and Proper Clauses and the Separation of

Powers doctrine before the NJSC, nor did it raise

these claims before the Appellate Division below. See

Fraternal Order of Police, Newark Lodge No. 12 v. City

of Newark, 459 N.J. Super. 458 (App. Div. 2019).2

Similarly, the alleged violations of the Due Process

Clause and the Political Process doctrine of the Equal

Protection Clause raised by Amicus Jersey City in its

brief were not before the NJSC.

Because Petitioner failed to raise these claims

before the NJSC, the NJSC never had the opportunity

to pass upon them. This Court should not grant the

Petition because Petitioner’s claims have not been

pressed or passed upon by New Jersey’s highest court.

This is especially so in this case, where the NJSC’s

decision rests on an independent and adequate state

ground. Indeed, the NJSC’s decision is based solely on

its careful analysis of what New Jersey law allows,

and what it does not. Because the NJSC did not have

the opportunity to decide Petitioner’s claims, this

Court must not grant the Petition.

2. Even if the claims had been properly raised

below, this Court should still decline to exercise its

jurisdiction. It is well settled that this Court is bound

2

The Appellate Division did address N.J.S.A. 40:48-2, which it

found “akin to the necessary and proper clause in the United

States Constitution.” Fraternal Order of Police, Newark Lodge

No. 12 v. City of Newark, 459 N.J. Super. 458, 489 (App. Div.

2019). However, the NJSC did not draw the same comparison

and did not analyze that statute in the same manner. Fraternal

Order of Police, Newark Lodge No. 12 v. City of Newark, 244 N.J.

75, 117 (2020).

9

to accept the interpretation of New Jersey law by the

NJSC. Hortonville Joint Sch. Dist. No. 1 v. Hortonville

Educ. Ass’n, 426 U.S. 482, 488 (1976), citing, Groppi v.

Wisconsin, 400 U.S. 505, 507 (1971); Kingsley Pictures

Corp. v. Regents, 360 U.S. 684, 688 (1959). Here, the

NJSC’s decision is based entirely on its interpretation

of state law. As this Honorable Court is constrained

to the NJSC’s interpretation of New Jersey law, the

Petition must be denied.

In New Jersey, the administration of municipal

police departments and the investigation and discipline of municipal, county, and higher education law

enforcement officers are regulated by statute. See, e.g.,

N.J.S.A. 40A:14-118 (2021); N.J.S.A. 40A:14-147 (2021),

N.J.S.A. 40A:14-181 (2021); N.J.S.A. 11A:2-13 through

22 (2021). The NJSC properly analyzed the applicable

New Jersey statutes in determining (1) that Newark

had the right to create the CCRB by ordinance; (2) that

the CCRB did not have the authority to conduct

complaint-based investigations concurrently with an

internal affairs investigation; (3) that the CCRB could

investigate citizen complaints for which no internal

affairs investigation was undertaken; (4) that the

CCRB could create a disciplinary matrix to be used by

the public safety director, conduct oversight reviews

and report periodically to the public safety director

and municipal council; and (5) that the municipality

lacked the authority to enact an ordinance that

delegated subpoena power to the CCRB. Fraternal

Order of Police, Newark Lodge No. 12 v. City of

Newark, 244 N.J. 75 (2020).

After initially acknowledging that Newark had “the

power to act legislatively where such authority has

been delegated by the Legislature,” the NJSC recognized that “where municipal power to act exists,

10

municipal action cannot run contrary to statutory

or constitutional law.” Id. at 92-93. To determine

whether Newark’s ordinance was contrary to law, the

NJSC examined N.J.S.A. 40:48-2, N.J.S.A. 40A:14-118

and N.J.S.A. 40A:14-181.

N.J.S.A. 40A:14-118 allows the governing body of a

municipality to create and establish a police force by

ordinance and requires the ordinance to provide for a

“line of authority relating to the police function and for

the adoption and promulgation by the appropriate

authority of rules and regulations for the government

of the force and the discipline of its members.” N.J.S.A.

40A:14-118 (2021). The statute further outlines the

duties and responsibilities of the chief of police, if

such position is established and defines “appropriate

authority.”3 The statute also provides that:

Nothing herein contained shall prevent the

appointment by the governing body of committees or commissions to conduct investigations of the operation of the police force, and

the delegation to such committees or commissions such powers of inquiry as the governing

3

“Appropriate authority” is defined as:

the mayor, manager, or such other appropriate

executive or administrative officer, such as a full-time

director of public safety, or the governing body or any

designated committee or member thereof, or any

municipal board or commission established by

ordinance for such purposes, as shall be provided by

ordinance in a manner consistent with the degree of

separation of executive and administrative powers

from the legislative powers provided for in the charter

or form of government either adopted by the

municipality or under which the governing body

operates. N.J.S.A. 40A:14-118 (2021).

11

body deems necessary or to conduct such

hearing or investigation authorized by law.

N.J.S.A 40A:14-118 (2021).

The NJSC properly determined, based on the text

and legislative history, that N.J.S.A. 40A:14-118 created

a single “appropriate authority” designated to buffer

the police force from political interference. Fraternal

Order of Police, Newark Lodge No. 12, 244 N.J. at 97.

As a result, the CCRB could not be a second

“appropriate authority” pursuant to the statute as

Newark’s municipal code designated the Public Safety

Director as the “appropriate authority.” Id. Only the

appropriate authority may establish the rules and

regulations of the department, which the police chief

must enforce. Id. at 98. The police chief reports on

day-to-day operations, including the disciplining of

officers, to the appropriate authority. Id. The NJSC

noted that while N.J.S.A. 40A:14-118 preserves to the

governing body the ability to create committees, it

similarly reserved to the “appropriate authority or any

executive or administrative officer charged with

general administrative responsibilities within the

municipality,” the ability to examine “operations of the

police or the performance of any officer or member

thereof.” Id. at 99.

The NJSC next considered the role of N.J.S.A.

40A:14-181 in the analysis. Fraternal Order of Police,

Newark Lodge No. 12, 244 N.J. at 100. New Jersey’s

Criminal Justice Act provides the State’s Attorney

General with broad law enforcement authority.

N.J.S.A. 52:17B-101 (2021). Pursuant to that authority, the Attorney General promulgated the IAPP.

N.J.S.A. 40A:14-181 requires every municipal, county,

and higher education institution law enforcement

agency within New Jersey to adopt and implement

12

internal affairs policies consistent with the IAPP.

N.J.S.A. 40A:14-181 (2021).

As the NJSC recognized, the IAPP establishes

uniform procedures for investigating complaints of

officer misconduct. Fraternal Order of Police, Newark

Lodge No. 12, 244 N.J. at 100. The IAPP, which was

last updated in August 2020, requires all municipal

and county law enforcement agencies to establish,

by written policy, an internal affairs unit or function.4

It also requires that reports by the public alleging

officer misconduct be accepted and fully and promptly

investigated and that confidential information is

safeguarded. The IAPP sets forth exhaustive procedures for the investigation of internal affairs complaints as well as the rights officers retain during the

internal affairs process. The NJSC acknowledged that

the internal affairs process is insular, consisting of

trained law enforcement personnel who are directly

responsible to the law enforcement executive or the

designated internal affairs supervisor. Fraternal

Order of Police, Newark Lodge No. 12, 244 N.J. at 101.

The NJSC further recognized that while there is

some discretion granted to law enforcement agencies

to fulfill the requirements of the IAPP, there are also

mandatory provisions. Id. These include the requirement that each agency establish and maintain a

confidential process, including an internal affairs

record system that includes an internal affairs index

and filing system for all documents and records. Id.

Internal affairs records must also be managed and

4

IAPP, August 2020 Version, available at https://www.

nj.gov/oag/dcj/agguide/directives/IAPP-August-2020-Version.

pdf (last visited March 17, 2021).

13

secured, and internal affairs personnel must receive

certain training. Id.

After examining these State statutes, the NJSC

applied the law to Newark’s ordinance establishing

the CCRB pursuant to the three-part test outlined in

Dome Realty, Inc. v. City of Paterson, 83 N.J. 212, 22526 (1980). This test requires a court reviewing the

validity of a challenged municipal action to determine

(1) whether the State Constitution prohibits delegation

of municipal power on a particular subject because of

the need for uniformity of regulation throughout the

State; (2) if the Legislature may delegate authority in

the area under scrutiny, the second question is whether

the Legislature has in fact done so; and (3) whether

any delegation of power to municipalities has been

preempted by other State statutes dealing with the

same subject matter. Fraternal Order of Police,

Newark Lodge No. 12, 244 N.J. at 93. In its analysis,

the NJSC relied solely on New Jersey statutory and

common law and did not address the Constitution of

the United States or any federal statute.

The NJSC acknowledged that N.J.S.A. 40:48-2

provides a broad grant of police powers to municipalities. Id. at 102. Accordingly, the NJSC determined that

questions concerning Newark’s ability to create the

CCRB arose solely under the third prong of the

analysis. Id. at 103.

Regarding this prong, the NJSC first determined

that neither N.J.S.A. 40A:14-118 nor N.J.S.A. 40A:14181 preempt the creation of the CCRB. Id. However,

both statutes serve to limit certain powers that the

ordinance grants the CCRB. Id. In this regard the

NJSC determined that the prospect of concurrent

investigations by the CCRB and the internal affairs

unit created a conflict between the ordinance and

14

statutory policies. Id. at 105. The NJSC stated:

“under present law, the IA process must remain a

self-contained, confidential process as designed with

respect to the personnel selected and trained to perform

such investigations, responsive to the chief who has

ultimate responsibility for IA operation and separated

on a reporting basis from others on the force.” Id. at

106. The NJSC also recognized that the IAPP’s strict

confidentiality requirements are mandated by N.J.S.A.

40A:14-181 and “no creation of a municipality can

interfere with the IA function as it is required to

operate.” Id. at 107.

A concurrent investigation between the internal

affairs unit and the CCRB does not comport with

N.J.S.A. 40A:14-181 and the IAPP’s requirements.

The NJSC opined: “The IA investigatory process is

disrupted, the police chief’s authority over IA function

and its proper operation is diminished, and the carefully preserved structure of the IA unit responsible to

the chief of police is breached by allowing a concurrent

investigation by the CCRB with required departmental disclosure of IA investigatory information to

the CCRB for use in its own investigation.” Id. at 107.

Basing its decision entirely on New Jersey statutory

law, the NJSC determined that “[u]nless legislative

change occurs, we are constrained to preclude the

CCRB from employing its delegated authority to

conduct complaint-based investigations in any matter

where there is an IA investigation.” Id. at 108.5

5

The New Jersey Legislature is considering the NJSC’s

decision and the authority of a CCRB in Senate Bill No. 2973

(Introduced September 24, 2020) and Assembly Bill No. 4656

(Introduced September 17, 2020).

15

In making this determination, the NJSC necessarily

limited its holding to conform to the State statutes

that it had analyzed.

To that end, the NJSC

determined that the investigatory power of the CCRB

poses no conflict with statutory law when used to

investigate a citizen complaint that is not subject to an

internal affairs investigation. Id. at 108-09. The NJSC

similarly determined that Newark’s Public Safety

Director, as the appropriate authority, could direct the

chief of police to initiate charges against a police officer

based on the findings of the CCRB. Id. at 109. The

NJSC also determined that the CCRB’s power to

create a disciplinary matrix to be used by the Director

of Public Safety, conduct oversight reviews of the

department (which includes the internal affairs unit)

and report periodically to the Director of Public Safety

and the Council were consistent with N.J.S.A. 40A:14118. Id. These determinations were also based solely

on New Jersey statutory law.

Next, the NJSC addressed the delegation of subpoena

power to the CCRB, and determined that this grant

could not be “squared with existing statutes.” Id. at

111. Relying on its decision in In re Shain, 92 N.J.

524, 539 (1983), the NJSC explained that pursuant to

its legislative function, the governing body has the

inherent legislative power to investigate and interrogate officials under oath and to, among other things,

issue subpoenas in furtherance of its proper legislative

function. Fraternal Order of Police, Newark Lodge

No. 12, 244 N.J. at 111. However, the CCRB is not

the governing body, nor is it a subcommittee of the

governing body. Id. “Therefore, it cannot derive from

the Council the subpoena power recognized in Shain.”

Id. Similarly, the NJSC found that the subpoena

power cannot be derived from N.J.S.A. 40A:14-118. Id.

(Citing to numerous instances in which the Legislature

16

specifically granted certain individuals and bodies

subpoena power). In the absence of a clearly expressed

intent by the Legislature, the NJSC concluded that the

Legislature did not intend to give municipalities the

ability to distribute subpoena power to public-member

commissions. Id.

At the conclusion of its decision, the NJSC addressed

the FOP’s argument concerning due process, finding it

premature. Id. at 113. This is the only instance in

its decision where the NJSC passed upon a federal

constitutional issue.

The NJSC’s decision rests squarely, and solely, on

its interpretation of the statutes and common law of

the State of New Jersey. It does not implicate the

Equal Protection Clause or the Necessary and Proper

Clause of the United States Constitution, nor does it

violate the Separation of Powers doctrine as Petitioner

claims. It does not violate Newark’s Due Process rights

or the Political Process doctrine as Amicus Jersey City

claims. The entire decision is based on the NJSC’s

analysis of New Jersey law. Petitioner did not raise

any of these arguments to the NJSC. Accordingly, this

Honorable Court must not grant the Petition.

3. The NJSC made the only decision possible under

New Jersey’s current statutory scheme. As the NJSC

noted, the applicable statutes “do not bespeak a

moving target.” Id. at 98. Granting the CCRB the

power to conduct concurrent investigations with internal

affairs and granting them subpoena power would

create multiple lines of authority and thus multiple

standards by which law enforcement officers’ conduct

will be judged. The standards in New Jersey would be

a “moving target” that is not contemplated by statute.

Such a “moving target” would make it impossible for

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law enforcement officers, like the members of the

POBA, to properly function.

Law enforcement agencies in New Jersey are

paramilitary organizations. Rivell v. Civil Service

Comm’n, 115 N.J. Super. 64, 72 (App. Div. 1971), rev’d

on other grounds by Henry v. Rahway State Prison,

81 N.J. 571 (1980). Maintaining discipline within such

an organization is paramount. Rivell, 115 N.J. Super.

at 72. However, the Newark Ordinance undermines

the strict hierarchical structure established by N.J.S.A.

40A:14-118 and the IAPP through N.J.S.A. 40A:14-181.

Currently, the conduct of municipal and county law

enforcement officers in New Jersey is governed by the

Rules and Regulations of their respective departments, which are approved by the appropriate authority and enforced by the chief of police, if such position

is established. N.J.S.A. 40A:14-118 (2021). If a law

enforcement officer is alleged to have violated those

Rules and Regulations, or if a complaint is made about

the law enforcement officer’s conduct by a member of

the public or the department, the procedures set forth

in the IAPP provide a uniform and consistent means

of investigating the complaint.

The IAPP ensures that investigations of employee

misconduct are conducted swiftly and require that in

most cases they be completed within 45 days of receipt

of the complaint. IAPP, 6.1.2. When the complaint

involves a criminal matter, the IAPP requires that the

internal affairs investigator defer to the County

Prosecutor. IAPP, 8.0.7. The IAPP further outlines

the rights of law enforcement officers subject to the

investigation, including the right to representation.

IAPP, 8.1.1.

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Importantly, the IAPP requires that the complaint

be investigated in a confidential manner. IAPP, 9.6.

The IAPP provides: “The nature and source of internal

allegations, the progress of internal affairs investigations and the resulting materials are confidential

information. The contents of an internal investigation

case file, including the original complaint, shall be

retained in the internal affairs function and clearly

marked as confidential.” IAPP, 9.6.1. The confidentiality of the complaint, the complainant and the

process are essential to ensure that individuals are not

dissuaded from filing complaints.

If the internal affairs investigation reveals wrongdoing, the subject law enforcement officer is entitled to

due process such as notice and a hearing on the

charges. N.J.S.A. 40A:14-147 (2021); N.J.S.A. 11A:213 (2021). There are also statutorily defined procedures for appealing any discipline issued. N.J.S.A.

40A:14-150 (2021); N.J.S.A. 11A:2-15 (2021).

The NJSC’s decision granted as much latitude to the

CCRB as it could without upending the entire statutorily defined process. There is no doubt that other law

enforcement agencies will seek to implement CCRB’s

like the one created in Newark. Amicus Jersey City has

indicated that it too has an ordinance creating a CCRB

advancing through its municipal council. If the NJSC

had allowed concurrent investigations and granted

subpoena power, law enforcement officers throughout

New Jersey would be subject to conflicting requirements.

While New Jersey’s statutory law and the IAPP

provide consistency throughout the State, each municipality and county could create different standards

for its CCRB. While the IAPP requires that all

complaints and investigations remain confidential,

had the NJSC ruled differently, a CCRB could

19

subpoena an officer and compel him or her to provide

testimony concerning an open internal affairs investigation. This would place the officer in a position

where he or she is subject to discipline for refusing to

comply with the CCRB’s orders or subject to discipline

for violating the IAPP. The NJSC’s decision avoids

this result.

Moreover, if a CCRB is permitted to conduct investigations concurrent with internal affairs, there is the

possibility for different results. This creates a situation

where law enforcement officers can be held to different

and possibly conflicting standards of conduct. Allowing

concurrent investigations alters the line of authority

and weakens the paramilitary structure of the organization. When a law enforcement officer is faced with

a life-or-death situation, hesitation caused by divergent standards of conduct could be the difference

between returning home safely to their families or

being killed or injured in the line of duty. The NJSC’s

decision, based entirely on New Jersey law, avoids this

outcome.

Although law enforcement discipline is regulated by

statute, it is easy to envision a situation in which an

officer charged with misconduct and subject to a

disciplinary hearing could be subpoenaed by a CCRB,

had it been granted that power. That officer would

then be in a position where he or she would have to

either decline to testify before the CCRB, thus being

subject to further discipline, or potentially giving up

certain rights during their disciplinary hearing.

Neither option is a good one.

This Honorable Court must not grant the Petition

in this matter. The NJSC made its determination

based solely on New Jersey law. It did not have the

opportunity to review and pass upon the federal

20

constitutional issues it raises now for the first time

before this Court. Accordingly, this Court must not

grant Certiorari.

CONCLUSION

For the foregoing reasons, this Honorable Court

should not grant the Petition for Certiorari in this

matter.

Respectfully submitted,

JAMES M. METS

Counsel of Record

BRIAN J. MANETTA

NICHOLAS P. MILEWSKI

METS SCHIRO & MCGOVERN, LLP

555 U.S. Highway 1 South

Suite 320

Iselin, New Jersey 08830

(732) 636-0040

jmets@msmlaborlaw.com

Counsel for Amicus Curiae,

Jersey City Police Officers

Benevolent Association

March 29, 2021