Lotto v. Com.

• Decision Date: 01 March 1976
• Citation: 369 Mass. 775,343 N.E.2d 855
• Parties: Harold L. LOTTO v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 855

343 N.E.2d 855

369 Mass. 775

Harold L. LOTTO

v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 6, 1975.

Decided March 1, 1976.

John D. Reilly, III, Framingham (Henry A. Letoile, Framingham, with him) for Harold L. Lotto.

Richard E. Rafferty, Asst. Atty. Gen., for the Commonwealth.

Before HENNESSEY, C.J., and REARDON, QUIRICO, BRAUCHER and KAPLAN, JJ.

REARDON, Justice.

In this case the plaintiff has appealed from a judgment of dismissal of his claim for damages against the Commonwealth. In June, 1969, he entered into a permit agreement with the defendant through the Department of Natural Resources, Division of Forests and Parks (department), for the operation of a boat concession at Cochituate State Park. He was issued a permit to operate the concession from June 7, 1969, to December 31, 1971, at a cost to him of $1,600 a year. The permit agreement contained the following language: 'this permit is issued subject to the right of the Director of Forests and Parks, with the approval of the Commissioner, to revoke same for any reason which, in his opinion, is in the best interests of the Commonwealth.' The plaintiff made two annual payments for 1969 and 1970, in which years he operated the concession consisting of the rental of moorings, boat rentals, the sale of gasoline and equipment, and limited marine repairs. In July, 1970, the department received three letters from different individuals complaining about various phases of the plaintiff's operation. In October, 1970, the department sent copies of the letters to the plaintiff who did not reply, thinking that the matter would be discussed at the usual pre-season meeting with the department in the spring of 1971. On March 9, 1971, the department wrote the plaintiff that his permit was cancelled and referred to the complaints which had been received and his failure to respond. At the plaintiff's request there was a meeting with the department on the matter on March 23, 1971, at which time the plaintiff denied the allegations contained in the letters of complaint or offered explanations. By letter dated April 1, 1971, the director of the division of forests and parks notified the plaintiff that the decision to terminate the permit was reaffirmed, and the plaintiff thereafter did not operate the concession in 1971.

The plaintiff complains that he was entitled to the procedural protections of the due process provisions of the Constitutions of the Commonwealth and of the United States which were not afforded to him. A claim of procedural due process presents two distinct issues. The first is whether due process applies at all. If it is found to apply, the second is concerned with the procedures required in the circumstances of the case. The first issue involves an analysis of the nature of the interest at stake. The second goes to the weight of that interest. Regents of State Colleges v. Roth, 408 U.S. 564, 570--571, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). See Goss v. Lopez, 419 U.S. 565, 572--580, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); Arnett v. Kennedy, 416 U.S. 134, 164--171, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (Powell, J., concurring); Perry v. Sindermann, 408 U.S. 593, 599--603, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Haverhill Manor, Inc. v. Commissioner of Pub Welfare, --- Mass. ---, --- - --- ^a 330 N.E.2d 180, cert. denied, 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257 (1975). Note, Specifying the Procedures Required by Due Process: Toward Limits on the Use of Interest Balancing, 88 Harv.L.Rev. 1510 (1975). See also McCarthy v. Sheriff of Suffolk County, --- Mass. ---, --- - ---, ^b 322 N.E.2d 758 (1975). Comment, Entitlement, Enjoyment, and Due Process of Law, 1974 Duke L.J. 89.

Here we must first determine whether the right asserted by the plaintiff can be properly classified as either 'property' or 'liberty' within the meaning of the Fourteenth Amendment. The plaintiff argues that his expectation of operating the marina to the end of the term contemplated by the agreement constituted a property interest not to be taken from him absent procedural protections secured by the due process clause. He concedes, as he must, that his claim of entitlement finds no basis in any statute ¹ and must derive, if at all, from his contract with the department. However, the department had expressly reserved the right to terminate that contract and revoke the concession permit 'for any reason which, in (the director's) opinion, is in the best interests of the Commonwealth.' The plaintiff's right to continue operation of the marina was expressly limited by the terms of the very contract from which that right derived. No contention is made that the contract was violated. It would appear that this broad power of revocation in the department defines the substantive rights of the parties under the contract and presents a situation diverse from those where the government grants a substantive property right and then seeks to set limitations on the procedures available to vindicate it. See Goss v. Lopez, supra; Arnett v. Kennedy, supra; Perry v. Sindermann, supra.

The plaintiff here undoubtedly expected to operate the marina during the summer of 1971, but in view of the broad powers of termination vested in the department he cannot be said by virtue of this contract to have a 'legitimate claim of entitlement' to do so. Regents of State Colleges v. Roth, surpa, 408 U.S. at 577, 92 S.Ct. 2701. See McCarthy v. Sheriff of Suffolk County, supra at --- - ---, ^c 322 N.E.2d 758.

Nor was the plaintiff deprived of 'liberty' within the meaning of the due process clause. The revocation of the permit constituted no charge of dishonesty, immorality or other disgraceful conduct sufficient to bring the plaintiff under the protection of the due process clause. Compare Wisconsin v. Constantineau, 400 U.S. 433, 435--437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), and McNeill v. Butz, 480 F.2d 314, 319--320 (4th Cir. 1973), with Regents of State Colleges v. Roth, supra 408 U.S. at 573, 92 S.Ct. 2701, and LaBorde v. Franklin Parish School Bd., 510 F.2d 590, 593 (5th Cir. 1975).

Nor do we see any interference with the plaintiff's freedom to engage in 'lawful private occupations' in the sense that it was found in Milligan v. Board of Registration in Pharmacy, 348 Mass. 491, 497, 204 N.E.2d 504 (1965). That case held that the broad discretion vested by statute in a State administrative agency to decide whether to grant a permit to operate a drug store was limited by the procedural requirements of due process. Here there is no obstacle posed to the plaintiff's 'feeedom of employment and business activity.' Id. at 498, 204 N.E.2d at 511. He has not been denied the right to pursue a particular career for which he was apparently qualified. See Willner v. Committee on Character & Fitness, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963). Cf. Goldsmith v. United States Bd. of Tax Appeals, 270 U.S. 117, 123, 46 S.Ct. 215, 70 L.Ed. 494 (1926). Nor has he been denied permission to earn a living by pursuing an otherwise lawful private occupation at a particular location as was the situation in the Milligan case. Here, rather, is a contractual relationship between the department and the plaintiff and a decision by the department to discontinue that relationship pursuant to the terms of the contract. Cf. DeCanio v. School Comm. of Boston, 358 Mass. 116, 121, 260 N.E.2d 676 (1970), appeal dismissed for want of jurisdiction and cert. denied sub nom. Fenton v. School Comm. of Boston, 401 U.S. 929, 91 S.Ct. 925, 28 L.Ed.2d 209 (1971). The decision of the department to exercise its right to revoke does not amount to an intrusion of the plaintiff's 'liberty' or a violation of due process under the Milligan case.

Furthermore, nothing is shown here to indicate that the plaintiff's ability to take advantage of future business or employment opportunities has been so seriously impaired as to constitute a deprivation of liberty within the meaning of the due process clause. The permit revocation, while possibly embarrassing, is not shown to have inflicted on the plaintiff the stigma of enemployability or disabled him from pursuing other public or private employment. See Regenets of State Colleges v. Roth, supra 408 U.S. at 574 n. 13, ...