Can unconstitutional curfew be enforced pending appeal?

By Scott Forsyth Recently, in Jiovon Anonymous v. City of Rochester, the Appellate Division of the Fourth Department declared Rochester’s youth curfew ordinance unconstitutional. I’ll write more about the decision in a future column. Within hours after the decision was released, Mayor Duffy vowed to appeal, and to continue to enforce the curfew while that appeal is pending. At a prior City Council session, Rochester’s Corporation Counsel advised the City Council that, even if the curfew were to be held unconstitutional, the statutory stay provided by CPLR 5519(a)(1) would allow the police to enforce the curfew pending appeal. Does CPLR 5519(a)(1) allow a City to violate the Constitution while an appeal is pending? In State v. Town of Haverstraw, 219 A.D.2d 64 (2nd Dept. 1996), the court considered whether a municipality can “obtain an automatic stay pursuant to CPLR 5519(a)(1) by appealing … an order or judgment which prohibits certain conduct on (its) part.” The court held that “no automatic stay is available in those circumstances.” The Haverstraw court reasoned that the service of a notice of appeal by the municipality stays only “proceedings to enforce executory directives … which direct the performance of a future act. In contrast, the court held that “prohibitory injunctions are self-executing and need no enforcement procedure to compel inaction on the part of the person or entity restrained.” Over 130 years ago, the Court of Appeals similarly held: “It would seem to be preposterous that a party could, by the mere order of the court staying his hands from executing a judgment not yet executed, be deprived of the whole fruit of the judgment by the lawless act of the defeated party pending an appeal.” Sixth Ave. R. R. Co. v Gilbert El. R. R. Co., 71 N.Y. 430, 433 (1877). The common misconception regarding the nature of the stay is quickly dispelled by the words of the statue. CPLR 5519 does not negate the effect of the judgment; it only stays “proceedings to enforce the judgment or order appealed from”. And the stay is just that – a stay. It does not relieve the appellant of the consequences of his failure to comply with the judgment. The stay only delays those consequences. If the appealed judgment is affirmed, the appellant may then be punished for contemptuous acts committed while the appeal was pending. Danziger v. Gottlieb, 156 A.D. 571 (1st Dept. 1913). Simply stated, “an appeal by the State, a political subdivision thereof, or their officers or agencies does not suspend the operation of the order or judgment and restore the case to the status which existed before it was issued. A motion decided by an order does not become undecided and the declaratory provisions of a judgment are not undeclared when a governmental party serves a notice of appeal therefrom.” Pokoik v. Dept. of Health Srvs. County of Suffolk, 220 A.D.2d 13 (2nd Dept. 1996). Where the order appealed is one that declares an ordinance or local law unconstitutional, the City’s officers may also be held personally liable for monetary damages to persons arrested under the void law. While officers may claim qualified immunity based upon reasonable reliance on a facially valid local law, no reasonable officer could reasonably rely on a law that had already been declared unconstitutional. The purpose behind CPLR 5519(a)(1) is “to stabilize the effect of adverse determinations on governmental entities and prevent the disbursement of public funds pending an appeal that might result in a ruling in the government’s favor.” Summerville v. City of New York, 97 N.Y.2d 427 (2002). Thus, government cannot be compelled to pay money judgments or take other affirmative actions requiring the expenditure of tax dollars while an appeal is pending. But when the government continues to enforce a law that has been declared unconstitutional, it acts at its taxpayers’ peril. The City of Rochester should carefully consider the monetary magnitude of that peril before its officers make the next curfew arrest.

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