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James J. Lysaght, for appellants.
D. Hughes, for intervenor-appellant.
Paul A. Cotty, for City respondents.
Victoria A. Donoghue, for BCB respondents.
Gary Johnson, for respondent PERB.
LEVINE, J.:
The issue presented by this
appeal is whether chapter 13 of the Laws of 1996 is unconstitutional because
it was not enacted in compliance with the home rule requirements of article
IX, 2 of the State Constitution. We conclude that because this
"special law," which relates to the "property, affairs, or government"
of New York City, was not enacted to further a matter "of sufficient importance
to the State generally" (Matter of Kelley v McGee, 57 NY2d 522, 538), its
enactment without a home rule message from New York City renders the chapter
law unconstitutional and unenforceable.
Under Civil Service Law
209, public employers and the collective bargaining representatives of
public safety employees may invoke the assistance of the Public Employment
Relations Board (PERB) when they believe an impasse has been reached during
collective bargaining negotiations and, if mediation fails to effect a
settlement, a binding arbitration panel will resolve the dispute (Civil
Service Law 209 [4]). However, when the binding arbitration procedures
were first added to section 209 in 1974, New York City's collective bargaining
law already provided for binding arbitration supervised by the City's Board
of Collective Bargaining (BCB), the City's "mini-PERB," when an impasse
was reached between the City and any of its employees, including its police
and firefighters (New York City Administrative Code 12-311 [enacted in
1972]). In recognition of that existing impasse arbitration mechanism,
when initially enacted PERB's binding arbitration procedures for public
safety employees specifically exempted members of New York City's police
and fire departments (L 1974, ch 725 [police]; L 1974, ch 724 [firefighters]).
The City's earlier establishment
of its own procedures for the resolution of bargaining impasses was pursuant
to authority which has existed since the enactment of Civil Service Law
212 in the original Taylor Law (L 1967, ch 392, 2). That section
permits a local government to opt out of certain provisions of the Taylor
Law pertaining to PERB's jurisdiction, including the impasse procedures
of section 209, by enacting through local law, procedures which are "substantially
equivalent" to the corresponding procedures of the Taylor Law (Civil Service
Law 212 [1]).
While all other local governments
must submit their local procedures to PERB for prior approval (id.), New
York City's procedures are deemed effective "unless and until * * * found
by a court of competent jurisdiction, in an action brought by [PERB] *
* *, not to be substantially equivalent" to the procedures of the Taylor
Law (Civil Service Law 212 [2]). Although the BCB's binding arbitration
procedures differ in a number of respects from those of Civil Service Law
209,1 because PERB has never judicially challenged the variations of
the New York City impasse procedures, it must be assumed that PERB has
determined that the City's impasse procedures nonetheless remain substantially
equivalent to those set forth in subdivision (4) of Civil Service Law
209.
The collective bargaining
agreement (CBA) between the City and defendant Patrolmen's Benevolent Association
(PBA), the bargaining representative for New York City police officers,
expired on March 31, 1995, and the parties were unable to reach an agreement
with respect to a successor CBA. In January 1996, under the then
applicable procedures, the City requested that the BCB appoint an impasse
arbitration panel (see, Administrative Code 12-311). Also at that
time, the bill which was to become chapter 13 and which purported to give
PERB exclusive jurisdiction over negotiation impasses between the City
and the New York City police, passed both houses of the State Legislature.
In February 1996, the Governor vetoed the bill, but it was enacted into
law by an override vote shortly thereafter.
Following passage of chapter 13, the PBA sought to transfer to PERB the
City's impasse panel request pending before the BCB and have PERB declare
an impasse in negotiations between the City and the PBA. The City
objected and commenced this action seeking, inter alia, a declaration that
chapter 13 of the Laws of 1996 is unconstitutional because it was passed
without a home rule message in violation of New York Constitution article
IX, 2. PERB and the BCB were joined as necessary parties and the
actions of both boards with respect to the impasse requests before them
were stayed pending the outcome of this litigation.
On cross-motions for summary
judgment, Supreme Court declared chapter 13 of the Laws of 1996 unconstitutional,
and the Appellate Division affirmed (__AD2d__). The appeal is before
us as of right on constitutional grounds.
Article IX, 2 of the State
Constitution grants significant autonomy to local governments to act with
respect to local matters. Correspondingly, it limits the authority
of the State legislature to intrude in local affairs, by giving it "the
power to act in relation to the property, affairs or government of any
local government only by general law, or by special law only * * * on request
of two-thirds of the total membership of its legislative body or on request
of its chief executive officer concurred in by a majority of such membership"
(NY Const, art IX, 2 [b][2] [emphasis supplied]).2 Thus, a special
law which relates to the property, affairs or government of New York City
violates this constitutional provision unless enacted upon a home rule
message from the City.
Chapter 13 of the Laws of
1996 is entitled "[a]n act to amend the civil service law in relation to
providing jurisdiction to [PERB] to enter disputes which reach an impasse
in the course of collective negotiations between the public employer and
the New York City police." Section 1 states further:
Notwithstanding any other
provision of law to the contrary, the public employment relations board
may invoke procedures to be followed in the event of disputes which reach
an impasse in the course of collective negotiations between the public
employer and the New York city police (L 1996, ch 13, 1).
Section 2 amends Civil Service Law 209 to remove the exemption of
the New York city police and fire department members from PERB's binding
arbitration impasse procedures.
Although chapter 13 did
not amend Civil Service Law 212 in so many words, manifestly the act's
expressly stated purpose -- to provide PERB with jurisdiction over the
impasse arbitration procedures previously vested in the City's BCB -- can
only be achieved if section 1 creates an exception for "negotiations between
the public employer and the New York city police" with respect to the statutory
authority of all other local governments, under Civil Service Law 212,
to completely opt out of PERB's jurisdiction over impasse procedures.
That is, under section 1 of chapter 13, "notwithstanding" the existence
of BCB jurisdiction over impasses between the City and its employees' bargaining
representatives (because of the City's enactment by local law of its mini-PERB
and local procedures), an impasse between the City and the PBA would be
governed by Civil Service Law 209 and PERB.
It would, thus, appear to
be indisputable that chapter 13, an act "in relation to * * * collective
negotiations between the [City] and the New York city police," is a special
law because it applies only to New York City (see, NY Const, art IX,
3 [d][4] [defining "special law" as "[a] law which in terms and in effect
applies to one or more, but not all * * * cities"]; City of New York v
State of New York, 76 NY2d 479; Town of Islip v Cuomo, 64 NY2d 50, 52;
cf., City of Amsterdam v Helsby, 37 NY2d 19, 27 [amendment to Civil Service
Law 209 providing for binding arbitration when an impasse is reached
between public employer and public safety employees is a general law because
it applies to all public employers]). By virtue of chapter 13, only
New York City, among all units of local government throughout the State,
is prohibited from providing for a local public employment relations board
with jurisdiction over binding arbitration procedures when an impasse is
reached in negotiations with its police force.3
Moreover, the proposition
that chapter 13 relates to the "property, affairs or government" of New
York City cannot be seriously contested, as it regulates the bargaining
process between the City and its police department members and thus relates
to the terms and conditions of employment of this local public safety force
(see, Osborn v Cohen, 272 NY 55 [personnel structure and hours of employment
of City's fire department is a matter of local concern]).
Thus, there is little question
but that chapter 13 of the Laws of 1966 is a special law relating to New
York City triggering the home rule procedural requirements of the Constitution.
We have, however, recognized an exception to those requirements if "the
subject matter of the statute is of sufficient importance to the State
generally to render it a proper subject of State legislation" (Matter of
Kelley v McGee, 57 NY2d, at 538, supra).
The PBA argues that the
State interest exception applies here and that the general presumption
of constitutionality that attaches to legislative enactments (see, City
of New York v State of New York, 76 NY2d, at 485, 487, supra; Hotel Dorsett
Co. v Trust For Cultural Resources of City of New York, 46 NY2d 358, 370)
requires application of the "any conceivable legitimate objective" standard
applicable under minimal scrutiny equal protection rational basis analysis
(see, Maresca v Cuomo, 64 NY2d 242, 250 [when applying the equal protection
rational basis test "a court may even hypothesize the motivations of the
State Legislature to discern any conceivable legitimate objective promoted
by the provision under attack"], appeal dismissed 474 US 802). We
disagree.
First, the equal protection
rational basis standard, applied generally to attacks on State social or
economic regulation and which validates measures reasonably related to
any conceivable legitimate State interest, is not an appropriate analogy
to the sensitive balancing of State and local interests required in resolving
home rule issues under our State Constitution. As is the case when
the rational basis standard is applied to constitutional litigation in
the equal protection context, judging the constitutionality of special
State local legislation will almost invariably result in upholding the
statute over home rule objections, if it is sufficient for its validity
that the law merely bears some relationship to some conceivable State interest.4
In recognition of the competing
constitutional values involved when State legislation impinges on and overlaps
with local concerns and that, therefore, a more substantive nexus should
be required if home rule is to remain a vital principle of fundamental
law, Chief Judge Cardozo framed the issue as follows:
The question to be faced is this: Has the State surrendered the power
to enact local laws by the usual forms of legislation where subjects of
state concern are directly and substantially involved, though intermingled
with these, and perhaps identical with them, are concerns proper to the
city? (Adler v Deegan, 251 NY 467, 489-490 [concurring opn] [emphasis supplied],
rearg denied 252 NY 574, opn amended by 252 NY 6l5).
The Court in Adler answered that question in the negative, rejecting
the views of the dissenting judges that would have even more restrictively
limited the authority of the State to legislate in relation to local matters.
The standard which has been accepted as appropriately balancing State and
local interests was first formulated by Chief Judge Cardozo in his concurring
opinion in Adler v Deegan (supra):
The test is rather this: That, if the subject be in a substantial degree
a matter of state concern the Legislature may act, though intermingled
with it are concerns of the locality (251 NY, at 491 [emphasis supplied]).
Thus, where State concern is involved "to a substantial degree, in
depth or extent," the State may freely legislate notwithstanding the legislation's
impact on local concerns (Wambat Realty Corp. v State, 4l NY2d 490, 494
[emphasis supplied]).
Therefore, for the State
to enact a special law on local affairs without complying with home rule
requirements, its interest in the subject matter must be substantial.
Moreover, and as a corollary to the constitutional balancing of overlapping
local and State interests requiring that the "subjects of State concern
[must be] directly and substantially involved" (Adler v Deegan, supra,
25l NY, at 490 [Cardozo, C.J., concurring] [emphasis supplied]), the enactment
must bear a reasonable relationship to the legitimate, accompanying substantial
State concern. Otherwise, "[i]nterference in such a degree would
be intrusion upon a concern or interest of the city, without a compensating
offset in the advancement of a concern or interest of the state" (Adler
v Deegan, supra, at 488 [Cardozo, C.J., concurring] [emphasis supplied]).
Thus, State legislation impacting especially on a locality is only valid
if "[i]t can be stated that the statutes in question 'serve a supervening
State concern'" (Town of Monroe v Carey, 96 Misc 2d 238, 242 [emphasis
supplied] [quoting Wambat Realty Corp. v State, 41 NY2d, at 495, supra],
affirmed on opn at Supreme Court 48 NY2d 847), and "relate to life, health
and quality of life [of the People of the State]" (Wambat Realty Corp.
v State of New York, supra, 4l NY2d, at 495 [emphasis supplied]).
Finally, the substantial
State concern which will be permitted to trump constitutional home rule
requirements regarding a particular enactment cannot be derived, as the
PBA suggests, purely from speculative assertions on possible statewide
implications of the subject matter, having no support in the language,
structure or legislative history of the statute. Again, it would
be absolutely inconsistent with the sensitive balancing of State and local
interests that has been our tradition in home rule litigation to allow
the State to justify legislation inimical to the constitutional values
of the home rule article based purely on considerations having no apparent
role in its enactment, no matter how plausibly conceived as an afterthought.
Thus, in Osborn v Cohen (272 NY 55, supra), the legislation at issue
directed a New York City referendum on regulating the hours and shifts
of City firefighters. Supreme Court had upheld the constitutionality
of the statute on the ground that restricting working hours of firefighters
would increase their efficiency and thereby enhance the safety and health
of the City's large population of residents and transients -- matters already
identified as legitimate subjects of State concern. This Court in
Osborn rejected that rationale "so drily logical drawn from asserted facts
without foundation in the record" (272 NY, at 59, supra [emphasis supplied]).
To the contrary, our precedents have consistently relied upon the stated
purpose and legislative history of the act in question to find, or reject,
a substantial State concern (see, e.g., Town of Islip v Cuomo, 64 NY2d,
at 53-54, supra; Matter of Kelly v McGee, 57 NY2d, at 539, supra; Hotel
Dorsett Co. v Trust for Cultural Resources of the City of New York, 46
NY2d, at 369, 374, supra; Matter of Radich v Council of City of Lackawanna,
93 Ad2d 559, 556, affd 61 NY2d 652; Town of Monroe v Carey, 96 Misc 2d,
at 241, supra).
Assessing chapter l3 of
the Laws of l996 by the foregoing criteria, we come to the same conclusion
as Supreme Court and the Appellate Division, that this legislation cannot
be upheld under any substantial State interest exception to the requirements
of article IX, 2 of the Constitution. Since chapter l3 itself does
not expressly identify any State concern motivating its enactment, we turn
to its legislative history. Contrary to the PBA's assertions on appeal,
the legislative history of chapter l3 simply does not evidence that the
Legislature enacted it out of serious public safety concerns. Rather,
the legislative record discloses that the reason for chapter l3's introduction
and passage most consistently and unequivocally expressed was to create
statewide uniformity with respect to impasse procedures available to police
department members under Civil Service Law 209, the lack of uniformity
under then existing law being described as "a glaring inequity" (Sponsor's
Mem to L 1996, ch 13; see, Assembly Debate on Assembly Bill A 8482/S 5779,
January 24, 1996, at 89, 123, 126, 148 [statements of Assembly sponsor
Crowley, and members Weisenberg and Becker]; Senate Debate on Senate Bill
S 5779, January 24, 1996, at 563 [statement of Senate sponsor Trunzo];
Assembly Debate on Vote to Override Governor's Veto of Senate Bill S 5779,
February, 12, 1996, at 79 [statement of Assemblymember Weisenberg]; Senate
Debate on Vote to Override Governor's Veto of Senate Bill S 5779, February,
12, 1996, at 1220-1221, 1222 [statements of Senators Waldron and Oppenheimer]).
The Legislature was also
prompted by the belief that the binding arbitration procedures of Civil
Service Law 209 under PERB's neutral jurisdiction would provide a fairer
forum for the New York City police than the more parochial, existing local
impasses procedures (see, e.g., Sponsor's Mem, supra; Assembly Debate,
January 24, 1996, supra, at 90, 98, 112, 127 [statements of Assembly sponsors
Crowley and Vitaliano and member Lopez]; Assembly Debate, February 12,
1996, supra, at 80 [statement of Assemblymember Townsend]). There
were also expressions in the debate by some individual members of the Legislature
that Civil Service Law 209's procedures would likely result in greater
parity between the salaries of New York City police and those in other
large metropolitan areas of the State (see, e.g., Senate Debate, February
l2, l996, supra, at l22l, l224 [statements of Senators Waldron and Abate]).
To whatever degree the foregoing
set of expressed purposes for enacting chapter l3 might represent matters
of legitimate, substantial State concern, the statute bears no reasonable
relationship to those goals. The act does not and cannot accomplish
the most clearly expressed legislative objective, of achieving statewide
uniformity in impasse arbitration procedures, because all other jurisdictions
but the City retain the right under Civil Service Law 212 to opt out
of PERB's impasse procedures by creating local mini-PERBs and, indeed,
many large metropolitan units of local government have chosen that alternative.
Thus, rather than creating an impasse arbitration procedure uniformly available
to all police statewide, chapter l3 singles out the New York City police
for different treatment.
To the extent that the legislative
purpose in enacting chapter l3 was based on the assumptions that fairer,
more economically favorable procedures would be achieved by replacing the
City's local mini-PERB with the State Board, resulting in the elimination
of salary disparities with other metropolitan police departments, these
assumptions are refuted by the unchallenged substantial equivalency PERB
has determined exists with respect to its own impasse arbitration procedures
and those used by the other mini-PERB's created under the authority of
Civil Service Law 212, New York City's BCB included. In this regard,
it is particularly noteworthy that many of the police departments in nearby
metropolitan localities cited in the legislative record to demonstrate
the disparate salary treatment of New York City police are subject to impasse
arbitration procedures supervised by local mini-PERB's, not the State PERB.
Thus, chapter l3 of the
Laws of l996 does not serve to advance nor is it reasonably related to
the professed State concerns which prompted its enactment. It follows
that the constitutional infirmity of this special law unquestionably "relat[ed]
to the property, affairs or government" (NY Const, art IX, 2 [b][2])
of New York City, for which no home rule message was ever sent, cannot
be cured under the substantial State interest exception.
Nor can we accept the PBA's
alternative argument that we should strike down as unconstitutional only
section 1 of chapter 13 and leave standing section 2, which does no more
than remove the specific exemption for New York City police and fire department
members from the impasse procedures of Civil Service Law 209 if and when
applicable. In the absence of evidence that the Legislature would
have intended that section 2's amendment of Civil Service 209 remain
effective if the primary purpose of the act -- to provide PERB with jurisdiction
over an impasse between the City and its police force -- could not be given
effect, there is no basis to sever chapter 13 and uphold section 2 (see,
Association of Surrogates & Supreme Court Reporters v McDermott, 79
NY2d 39, 47-48 [quoting People ex rel. Alpha Portland Cement Co. v Knapp,
230 NY 48, 60, rearg denied 231 NY 516, cert denied 256 US 702]).
Accordingly, the order of
the Appellate Division should be affirmed with costs.
F O O T N O T E S
1. While the arbitrators supervised by PERB may issue a determination effective for no more than two years, the effect of the recommendation of the BCB's impasse panel is not limited to a two year period (compare, Civil Service Law 209 [4][c][vi], with Administrative Code 12-311). Additionally, under Civil Service Law 209, the arbitrators' determination is subject only to limited judicial review (Civil Service Law 209 [4][c][vii]), while the BCB may review the merits of the impasse panel's recommendation upon appeal of either party (Administrative Code 12-311 [c][4][c])
2. With the exception of New York City, the Legislature may also enact a special law relating to the locality's property, affairs or government on a message of necessity from the Governor in which two-thirds of the members of each house concur (NY Const, art IX, 2 [b][2]).
3. The parties do not dispute Supreme Court's judicial notice that, in addition to New York City, the counties of Nassau, Suffolk and Westchester, and the Town of Hempstead and the Syracuse City School District have also opted to create their own mini-PERBs under Civil Service Law 212.
4.Constitutional scholar Laurence H. Tribe characterizes the rational basis level of Equal Protection scrutiny as an exercise of "remarkable deference" and "largely toothless" judicial review (Tribe, American Constitutional Law l443, l601 [2d ed.]).
* * * * * * * * * * * * * * * * *
Order affirmed, with costs. Opinion by Judge Levine. Chief
Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Ciparick concur.
Decided December 19, 1996