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Justice punted on Police Accountability Board 

State Supreme Court Justice John Ark sat in a high-back leather chair when he heard arguments for and against a city law authorizing a civilian-controlled Police Accountability Board.

But the ruling he issued four hours later read like he’d been sitting on a fence.

The law, passed by City Council in May, was double-barreled in that it outlined the powers of the board and provided that it would take shape only if approved by voters in a referendum this fall.

The police union, the Rochester Police Locust Club, filed a lawsuit asking the court to strike down the law on the grounds that the proposed board violated state and federal statutes and ran afoul of the union’s labor agreement with the city.

The union concluded in its petition that because a board with such powers was illegal, the referendum called for by the law was impermissible.

But Ark didn’t touch the arguments of legality raised by the union in his order. Instead, writing that he “fully anticipates more thorough litigation of the issues,” he took the easy way out and barred the referendum from being voted upon in November.

As if his decision weren’t indecisive enough, he ordered the Monroe County Board of Elections to “authorize and distribute” ballots containing the referendum just in case an appellate court reversed him and approved the referendum.

His decision was a punt.

“It would be a disservice to the community for the court to render its legal judgment on such important legislation without a thorough analysis of the legality of the statute,” Ark wrote.

Indeed, it would. But there’s a remedy for that, your honor: thoroughly analyze the legality of the statute.
Ark’s decision was the jurisprudence equivalent of a father, when confronted with the question from his child whether she can host a sleepover, answering, “Ask your mother.”

His ruling has thrust the Board of Elections into a holding pattern and sown confusion among the electorate.
In court the day of the argument, Monroe County Elections Commissioner Doug French explained that the Elections Board had planned to send Election Day ballots for printing on October 1.

That plan has now been shelved, as the Elections Board awaits word from an appellate court, to which the City Council has since appealed, on whether Ark’s ruling will stand or be reversed.

The ballots that were to go out for printing on October 1 weren’t slated to be returned to the Board of Elections until October 8. Now, toss in the wrenches that the appellate court doesn’t convene again until October 7 and that early voting starts two weeks later.

Printing ballots isn’t a simple undertaking in any year, but this year is especially challenging.

A typical election year yields about 25 different ballots between the city, towns, and villages in the County. But because so many offices are up for grabs this year, there are 72 ballots to be printed, according to the Elections Board.

Each of them must be tested multiple times before they can be put into use. That can take weeks.
As of today, some 968 city residents who requested absentee or military personnel and overseas ballots already have ballots in hand that contain the referendum.

What happens if they return their ballots having not voted on the referendum, thinking their votes wouldn’t be counted anyway, and the appellate court subsequently reverses Ark? Those voters will have been disenfranchised.

The police union bears some responsibility for the confusion. It could have sued months earlier. And, of course, there was always the probability that Ark’s decision would have been appealed by whichever side lost.

But Ark could have taken a position on the heart of the matter and given the appellate court something of substance to consider. Instead, he balked.

Consequently, the appellate court will likely only rule on whether barring the referendum was proper, leaving hanging the real question of whether such a board is even legal.

The closest Ark came to dissecting the law was asking the lawyer for the City Council, “Would you like to have someone discipline you who is not in your chain of command?”

“Not necessarily,” the lawyer, Andrew Celli Jr., answered. “But this is about the democratic process answering that question.”

As it stands, voters can’t decide because a judge couldn’t make a decision.

David Andreatta is CITY’s editor. He can be reached at dandreatta@rochester-citynews.com.

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