Lackawanna Police Benevolent Association v. Mark L. Balen, Mayor of the City of Lackawanna

Second Circuit

Lackawanna Police Benevolent Association v. Mark L. Balen, Mayor of the City of Lackawanna

446 F.2d 52, 1971 U.S. App. LEXIS 8864

CourtCourt of Appeals for the Second Circuit

DecidedJuly 16, 1971

Docket1077, Docket 71-1558

StatusPublished

Cited by27 cases

This text of 446 F.2d 52 (Lackawanna Police Benevolent Association v. Mark L. Balen, Mayor of the City of Lackawanna) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Lackawanna Police Benevolent Association v. Mark L. Balen, Mayor of the City of Lackawanna, 446 F.2d 52, 1971 U.S. App. LEXIS 8864 (2d Cir. 1971).

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Opinion

PER CURIAM:

Section 208-d of the General Municipal Law of New York, McKinney’s Con-sol.Laws, c. 24, enacted by Laws 1967, ch. 812, effective May 2, 1967, authorizes any member of a police force of a city to engage in extra work for another employer outside his regular hours of duty but sets a limit of 20 hours a week. After unsuccessful challenge to the constitutionality of this statute through the hierarchy of state courts, plaintiff brought this action in the District Court for the Western District of New York, seeking to enjoin enforcement of the limit provided by the statute as violating the Fourteenth Amendment rights of its members and asking for the convocation of a three-judge court. Feder *53 al jurisdiction was asserted under 28 U.S.C. § 1343(3).

Chief Judge Henderson dismissed the complaint on the ground that the right to augment police salaries by outside work was not a “personal right” within the scope of the Civil Rights Act, citing as authority, binding upon him, this court’s decision in Tichon v. Harder, 438 F.2d 1396 (2 Cir. 1971). While we do not quarrel with that view, the action should also have been dismissed on the ground properly asserted in the answer, see F.R.Civ.P. 8(c), that the state judgment was res adjudicata. Having lost in the state courts, plaintiff’s remedy was to seek review by the Supreme Court. The Civil Rights Act, unlike federal habeas corpus, does not permit a second bite at the cherry. Howe v. Brouse, 422 F.2d 347 (8 Cir. 1970); Scott v. California Supreme Court, 426 F.2d 300 (9 Cir. 1970). We add for good measure that the constitutional challenge was unsubstantial and the complaint could properly have been dismissed on that ground also.

Affirmed.

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PER CURIAM:

Section 208-d of the General Municipal Law of New York, McKinney’s Con-sol.Laws, c. 24, enacted by Laws 1967, ch. 812, effective May 2, 1967, authorizes any member of a police force of a city to engage in extra work for another employer outside his regular hours of duty but sets a limit of 20 hours a week. After unsuccessful challenge to the constitutionality of this statute through the hierarchy of state courts, plaintiff brought this action in the District Court for the Western District of New York, seeking to enjoin enforcement of the limit provided by the statute as violating the Fourteenth Amendment rights of its members and asking for the convocation of a three-judge court. Feder *53 al jurisdiction was asserted under 28 U.S.C. § 1343(3).

Chief Judge Henderson dismissed the complaint on the ground that the right to augment police salaries by outside work was not a “personal right” within the scope of the Civil Rights Act, citing as authority, binding upon him, this court’s decision in Tichon v. Harder, 438 F.2d 1396 (2 Cir. 1971). While we do not quarrel with that view, the action should also have been dismissed on the ground properly asserted in the answer, see F.R.Civ.P. 8(c), that the state judgment was res adjudicata. Having lost in the state courts, plaintiff’s remedy was to seek review by the Supreme Court. The Civil Rights Act, unlike federal habeas corpus, does not permit a second bite at the cherry. Howe v. Brouse, 422 F.2d 347 (8 Cir. 1970); Scott v. California Supreme Court, 426 F.2d 300 (9 Cir. 1970). We add for good measure that the constitutional challenge was unsubstantial and the complaint could properly have been dismissed on that ground also.

Affirmed.

Eugene Rodriguez, and the United States of America Ex Rel. Eugene Rodriguez v. Paul D. McGinnis Commissioner of Correction, United States Ex Rel. Michael Katzoff v. Paul D. McGinnis Commissioner of Correction of the State of New York and John T. Deegan, Warden of Auburn State Prison, Auburn, New York, John Kritsky, and United States of America Ex Rel. John Kritsky v. Paul D. McGinnis Commissioner of Correction, Russell G. Oswald, Chairman of the Board of Parole, J. Edwin Lavallee, Warden of Clinton State Prison, New York State Board of Parole and New York State Department of Correction

456 F.2d 79 (Second Circuit, 1972)

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446 F.2d 52, 1971 U.S. App. LEXIS 8864, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lackawanna-police-benevolent-association-v-mark-l-balen-mayor-of-the-ca2-1971.

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