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SERGE v. CITY OF SCRANTON

June 20, 1985

SERGEANT MICHAEL L. SERGE, PATROLMAN JEFFREY P. OZOVEK, PATROLMAN ALFRED BURIAN, And All Similarly Situated Individual Members of the Class, THE POLICE DEPARTMENT OF THE CITY OF SCRANTON, Plaintiffs
v.
THE CITY OF SCRANTON, JAMES BARRETT McNULTY, Mayor, CARLON M. O'MALLEY, JR., Director of Public Safety, and ROBERT N. WILLIAMS, Superintendent of Police, Defendants



The opinion of the court was delivered by: CALDWELL

 I. Introduction.

 II. Discussion.

 A. Plaintiffs' Complaint States A Claim Upon Which Relief Can Be Granted.

 Rule 301.7 allegedly requires plaintiffs to remain at home except when they receive medical treatment. When they leave their homes for a doctor's appointment, they must notify the Superintendent of Police. Plaintiffs claim the rule infringes upon their right to vote, attend church services, to meet with lawyers, and attend political or family gatherings or travel freely. Defendants contend that regulations like the one at issue in the instant case have been held constitutional in other cases. They cite in their support Vorbeck v. Schnicker, 660 F.2d 1260 (8th Cir. 1981), cert. denied, 455 U.S. 921, 102 S. Ct. 1278, 71 L. Ed. 2d 462 (1982); Loughran v. Codd, 432 F. Supp. 259 (E.D.N.Y. 1976) and Gissi v. Codd, 391 F. Supp. 1333 (E.D. N.Y. 1974). These cases are all distinguishable.

 In Vorbeck, the court never explicitly passed upon the constitutionality of the police regulations at issue there. Instead, it rejected plaintiffs' claim because none of them could show that they had been injured by the regulations. The case turned on the non-justiciability of the lawsuit. While the court may have "by necessary implication," Bruno v. Department of Police, 451 So.2d 1082, 1099 (La. Ct. App. 1984) (brackets added), upheld the constitutionality of the regulations on their face, we decline at this juncture to do so on the present record.

 Both Loughran and Gissi dealt with the regulations of the New York City police department. In those cases the sick leave regulations were held to be valid but an important consideration was a particular provision granting unlimited sick leave to police officers. As stated by the court in Loughran : "All department members enjoy unlimited sick leave with full pay. A restriction on the permissible number of annual sick days, evident in most police departments across the nation, is not imposed on New York City officers. Accordingly, some restrictions on the activity of a member on sick report are wholly necessary if malingering is to be minimized and abuse curtailed." 432 F. Supp. at 263 (citing Gissi). In the instant case it is unclear whether the regulation provides for unlimited injury leave. Defendants do not assert that it does. Under these circumstances, we decline to dismiss plaintiffs' complaint on the authority cited by defendants.

 In any event, plaintiffs are also asserting that the regulation is unconstitutional as applied. Thus, even if the regulation is valid on its face, if it is applied in a manner that infringes upon plaintiffs' constitutional rights, such as those of free association or religious liberty, plaintiffs may be entitled to relief. See Philadelphia Lodge No. 5 v. City of Philadelphia, 599 F. Supp. 254 (E.D. Pa. 1984); Gissi, supra.

 B. The Proper Standard of Review of the Regulations Is the Rational Relationship Test.

 Plaintiffs contend that the regulations must be reviewed under the "compelling state interest" test. Defendants argue, and we agree, that the "rational relationship" test is the proper standard by which to judge them. In Kelley v. Johnson, 425 U.S. 238, 96 S. Ct. 1440, 47 L. Ed. 2d 708 (1976), the Supreme Court, holding a police department regulation on hair length constitutional, stated that restrictions could be placed upon the constitutional rights of public employees which would not be permissible for private citizens. It went on to state:

 
Thus, the question is not, as the Court of Appeals conceived it to be, whether the State can "establish" a "genuine public need" for the specific regulation. It is whether respondent can demonstrate no rational connection between the regulation, based as it is on the county's method of organizing its police force and the promotion of safety of persons and property. [citation omitted].

 Id. at 247, 96 S. Ct. at 1446, 47 L. Ed. 2d at 715-16 (brackets added).

 Plaintiffs attempt to distinguish Kelley by noting that Kelley involved a claim implicating "only the more general contours of the substantive liberty interest protected by the Fourteenth Amendment." id. at 245, 96 S. Ct. at 1445, 47 L. Ed. 2d at 714, ...


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