236 A.3d 965
N.J.2020Background:
- Newark enacted Ordinance 6PSF-B creating a Civilian Complaint Review Board (CCRB) after a DOJ investigation and in advance of a Consent Decree requiring civilian oversight.
- The Ordinance placed the CCRB in the Mayor’s office with authority to receive and investigate citizen complaints, review IA outcomes, recommend discipline to the Public Safety Director, and (as enacted) to issue subpoenas and exercise concurrent jurisdiction with Internal Affairs (IA).
- The Fraternal Order of Police sued; the trial court invalidated most investigatory aspects but preserved general oversight powers. The Appellate Division modified the Ordinance and sustained it in part.
- The New Jersey Supreme Court affirmed in part and reversed in part: it upheld the municipality’s authority to create a civilian oversight board and to investigate complaints when no IA investigation exists, but limited the CCRB’s investigatory reach and invalidated its subpoena power.
- Legal constraints driving the holding: the police-force statute (N.J.S.A. 40A:14-118) designates a singular “appropriate authority” (here, the Public Safety Director) with supervisory responsibility over IA; and N.J.S.A. 40A:14-181 plus the Attorney General’s Internal Affairs Policy & Procedures (IAPP) require a confidential, uniform, chief-supervised IA process that cannot be disrupted by concurrent civilian probes.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Municipal power to create CCRB | Ordinance conflicts with statutes and intrudes on chief’s duties | Permitted under municipal police powers and section 118 | Creation of CCRB allowed; not preempted generally |
| Concurrent CCRB/IA investigations | Concurrent investigations conflict with IA statutes and AG IAPP | CCRB may investigate in parallel to ensure accountability | Invalid — CCRB may not investigate when an IA investigation is underway |
| Delegation of subpoena power to CCRB | Council cannot delegate subpoena power to non-legislative body | Council’s investigatory authority and section 118 permit subpoena delegation | Invalid — no authority to confer subpoena power on CCRB; Council retains its own subpoena power |
| Binding effect of CCRB findings on discipline | Binding CCRB findings would usurp chief/appropriate authority | CCRB findings should be considered and may inform discipline | CCRB findings cannot bind the Public Safety Director or supplant IA outcomes |
| Due process concerns for officers | CCRB procedures may violate officers’ due process rights | CCRB is investigatory, not adjudicative; process need not replicate disciplinary hearing | Challenge premature; due-process protections attach if/when discipline is imposed |
Key Cases Cited
- Dome Realty, Inc. v. City of Paterson, 83 N.J. 212 (1980) (three-part test for evaluating municipal legislative authority)
- Inganamort v. Borough of Fort Lee, 62 N.J. 521 (1973) (N.J.S.A. 40:48-2 as a broad municipal police-power reservoir)
- In re Shain, 92 N.J. 524 (1983) (city council subpoena power tied to legislative investigatory function)
- Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark, 459 N.J. Super. 458 (App. Div. 2019) (appellate decision modifying and sustaining parts of Newark Ordinance)
- Falcone v. De Furia, 103 N.J. 219 (1986) (statutory protection of chiefs’ operational authority)
- Ruroede v. Borough of Hasbrouck Heights, 214 N.J. 338 (2013) (statutory hearing and review process for police discipline)