Albert v. Municipal Court of City of Boston

• Decision Date: 18 March 1983
• Citation: 446 N.E.2d 1385,388 Mass. 491
• Parties: . 1 Supreme Judicial Court of Massachusetts, Suffolk
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1385

446 N.E.2d 1385

388 Mass. 491

Daniel J. ALBERT v. MUNICIPAL COURT OF the CITY OF BOSTON et al. ¹

Supreme Judicial Court of Massachusetts Suffolk.

Argued Oct. 8, 1982.

Decided March 18, 1983.

Michael A. Ugolini, Springfield, for plaintiff.

Joan C. Stoddard, Asst. Atty. Gen., for Civil Service Com'n.

Thomas A. Waldron, Asst. City Sol., for Bd. of Police Com'rs of Springfield, was present but did not argue.

Before HENNESSEY, C.J., and WILKINS, NOLAN and O'CONNOR, JJ.

O'CONNOR, Justice.

On March 10, 1976, Daniel J. Albert was discharged from the Springfield police force for violating rule 32, § 2, of the rules and regulations of the City of Springfield Police Department by (1) doing an illegal act (attempted extortion), (2) conducting himself in a manner unbecoming a police officer, and (3) committing an act contrary to the good order and discipline of the department. After a hearing by a hearings officer of the Civil Service Commission on May 11, 1978, the commission affirmed the discharge. ² The Municipal Court of the City of Boston upheld the commission's decision after review pursuant to G.L. c. 31, § 44 (as appearing in St.1978, c. 393, § 11). Albert commenced this action in the nature of certiorari to set aside the judgment of the Municipal Court. A single justice of this court reserved and reported the case, including the following questions of law: "(1) As a matter of procedural due process does the Fourteenth Amendment to the United States Constitution or Article 12 [of the Declaration of Rights] of the Massachusetts Constitution require the Civil Service Commission, or the court on judicial review of the Commission's action, to impose a standard of proof greater than 'fair preponderance of the evidence' where the issue concerns the discharge of a tenured police officer from his duties based on alleged criminal misconduct? (2) Does the petitioner's failure to raise this issue before the appointing authority, the Civil Service Commission and the Municipal Court preclude the court from considering this issue?" Because we answer the second question, "Yes," we do not answer the first.

We recite the significant facts that were found by the commission's hearings officer and adopted by the commission. Albert was employed as a police officer in Springfield. At approximately 2:30 A.M., on February 19, 1976, he was patrolling an area that was frequented by prostitutes. He came upon a motor vehicle that had stopped in order that its male driver might speak to a person that Albert knew was a prostitute. Albert asked the man whether he was married and the man responded that he was. Albert then asked if the man would like to be arrested for soliciting a prostitute and the man answered that he would not. Albert next asked whether the man would like to give him twenty dollars and the response was negative. In response to another question the man indicated that he could stand newspaper publicity.

At the time of the hearing before the hearings officer, G.L. c. 31, § 43, provided that if the commission "finds that the action of the appointing authority was justified, such action shall be affirmed." ³ During the discussion of the relevancy of Albert's acquittal of criminal charges arising out of the incident in question, the hearings officer stated that the standard of proof at the criminal trial (beyond a reasonable doubt) was different from the standard at the hearing. This statement was not disputed by Albert's counsel nor was any contention made that the standard of proof was more rigorous than proof by a preponderance of the evidence. In her recommendation of decision, the hearings officer stated that the applicable standard of proof was proof by a preponderance of the evidence.

In his petition for review in the Municipal Court, Albert asserted that the decision of the Civil Service Commission was incorrect because it was based on an incorrect standard of proof. However, Albert argued in his brief before the Municipal Court that the city of Springfield had the burden of proof by a preponderance of the evidence. He did not raise the constitutional claims asserted here.

A party is not entitled to raise...