A District of Columbia police union lost its appeal challenging a 2020 police reform measure which states "matters pertaining to the discipline of sworn law enforcement personnel shall be retained management and not be negotiable." The new law breaks with decades of collective bargaining rights to negotiate over disciplinary procedures and due process for all represented employees. In Fraternal Order of
Police v. District of Columbia, 2022 WL 3568866, the Fraternal Order of
Police, Metropolitan Police Union (“FOP”) raised Constitutional challenges alleging the Reform Act violated the Equal Protection, Bill of Attainder, Contract, and Fifth Amendment Due
Process Clauses of the United States Constitution.
Like in California, D.C. unions derive their bargaining rights from statute. D.C.’s Comprehensive Merit Personnel Act (“CMPA”) authorizes the Metropolitan Police Department to unionize and engage in collective bargaining. The CMPA provides “[a]ll matters shall be deemed negotiable,” except for rights reserved to management, including the right to “suspend, demote, discharge, or take other disciplinary action against employees for cause.” The CMPA gives management full discretion over disciplinary actions of officers, but allows for negotiations over the procedures for adjudicating such actions.
Metropolitan Police Department’s 2017 collective bargaining agreement (“2017 Agreement”) contained provisions on disciplinary procedures. Article 12 specified these provisions “shall be incorporated” into successor agreements unless modified by either a joint labor-management committee or an arbitration panel. Two months before the 2017 Agreement expired, the D.C. Council passed emergency legislation providing for police reform (“Reform Act”) in reaction to the death of George Floyd. Section 116 of the Reform Act temporarily amends the CMPA to eliminate the right of police unions to bargaining over disciplinary procedure. The amendment applies to “any collective bargaining agreement entered into with the [FOP] after September 30, 2020."
The FOP sued to enjoin enforcement of Section 116. The District Court dismissed the suit for failure to state a claim, and the D.C. Court of Appeal affirmed.
Equal Protection Challenge
The
FOP first raised an equal protection challenge. The Equal Protection Clause
provides, “[n]o State shall… deny to any person within its jurisdiction the
equal protection of the laws.” U.S. Const. amend. XIV. The FOP argued Section
116 violates equal protection because it irrationally discriminates between
police officers and similarly situated government employees.
The court held a statute that covers some occupations but not others, if it neither burdens fundamental rights nor makes suspect classifications such as race, does not violate equal protection if the distinction is rationally related to a legitimate state interest. The court noted under rational basis review, classifications have a strong presumption of validity. The challenging party has the burden of negating every conceivable basis that might support the classification.
The court found the FOP did not meet that burden because the D.C. Council could rationally have concluded increasing management control furthers a legitimate interest in improving police accountability. It further noted the legislature’s lack of findings supporting its choice was not dispositive because the legislature’s actual motive in passing a statute is irrelevant. What matters is whether there are “plausible reasons to conclude that statutory classification furthers legitimate government interest.” That standard was met here. The court noted that the distinction between police officers and prison guards or protective services could rationally be supported by the belief that police are a more pressign concern because they deal directly with the public.
Importantly, the rational basis standard applied by the court would not apply to a statute affecting a particular group’s fundamental right, such as the right to self-defense.
Bill of Attainder Challenge
The FOP next claimed Section 116 constitutes a bill of attainder. The Bill of Attainder Clause prohibits the passage of bills of attainder, which are laws that inflict punishment upon an identifiable group of people without the protections of a trial. U.S. Const. art. I, § 9, cl. 3. The FOP argued the amendment is a bill of attainder because it singles out “sworn law enforcement officers” for negative treatment, and mentions the FOP by name. The court disagreed.
To determine whether an alleged bill of attainder imposes punishment, the court analyzed whether 1) the challenged statute falls within the historical understanding of legislative punishment; 2) the statute reasonably furthers nonpunitive legislative purposes; and 3) the legislative record shows an intent to punish. The court found Section 116 does not fit within a historical meaning of legislative punishment, since bills of attainder were traditionally used to sentence specific individuals to death. Further, it found Section 116 was not so disproportionate to the stated goal of enhancing police accountability that it constituted punishment. Finally, the court rejected the FOP’s argument the record showed an intent to punish, since there was no “unmistakable evidence of punitive intent."
The court noted the amendment still left in place significant “protective measures” for officers, such as the right not to be “fired, demoted, or suspended without cause.” Further, Section 116 “lasts only temporarily.” Significantly, the court rejected the FOP’s argument that no real emergency existed, deferring to the Council’s determination that emergency legislation following the death of George Floyd was justified.
Contracts Clause Challenge
The FOP further argued Section 116 violates the Contract Clause, which provides “[n]o state shall… pass any… Law impairing the Obligation of Contracts.” U.S. Const. art. I, § 10, cl. 1. It applies only to laws with retrospective, and not prospective, effect. The court concluded there was no violation, since Section 116 has only a prospective effect because it applies to agreements created only after the FOP’s 2017 Agreement expired.
The court rejected the FOP’s argument that Article 12 of the 2017 Agreement prohibited the Council from enacting new rules governing future bargaining over successor agreements. The court noted that the Contracts Clause only applies to laws with retrospective, not prospective effect. It noted a retrospective law violates the Contracts Clause only where it “substantially impair[s] existing contract rights.” The court stated that the FOP was really arguing that law impaired rights under the expired agreement based on a clause stating that the existing disciplinary procedure “shall be incorporated into any successor” agreement unless changed through a prescribed process.
Whether an impairment is “substantial” depends on the parties’ reasonable expectations. The court found the FOP could not have reasonably expected to insulate itself from changes to bargaining after the 2017 Agreement had expired.
Significantly, the court left unanswered whether a statute could be passed to impair existing bargaining agreement procedures involving discipline, such as binding arbitration.
Fifth Amendment Due Process Clause Challenge
Finally, the FOP claimed Section 116 violates the Due Process Clause of the Fifth Amendment, which provides, “[n]o person shall… be deprived of life, liberty, or property without due process of law.” U.S. Const. amend. V. The FOP challenged the amendment as violating substantive due process for “grave unfairness.” The court rejected this argument, finding Section 116 is not gravely unfair because it implicates no fundamental rights, imposes no punishment, and had only a “modest prospective effect” on past contracts.
