Bloom v. City of Worcester
| Court | United States State Supreme Judicial Court of Massachusetts |
| Writing for the Court | Before TAURO; WILKINS |
| Citation | 363 Mass. 136,293 N.E.2d 268 |
| Decision Date | 22 February 1973 |
| Parties | John A. BLOOM et al. v. CITY OF WORCESTER et al. |
Page 268
v.
CITY OF WORCESTER et al.
Decided Feb. 22, 1973.
[363 Mass. 137]
Page 269
James A. Brett, Asst. City Sol. (Henry P. Grady, City Solicitor, with him) for the City of Worcester and others.William B. Field, Worcester (Robert S. Bowditch, Boston, with him), for the plaintiffs.
Robert H. Quinn, Atty. Gen., and Walter H. Mayo, III, Asst. Atty. Gen., as amicus Curiae, submitted a brief.
Before [363 Mass. 136] TAURO, C.J., and REARDON, HENNESSEY, KAPLAN and WILKINS, JJ.
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[363 Mass. 137] WILKINS, Justice.
In this proceeding, which has been reported to us without decision on a case stated, the parties seek a determination as to the validity of an ordinance of the city of Worcester which established and granted certain powers to a human rights commission (the commission). The plaintiffs, sixteen registered voters in Worcester, desire a declaration that the ordinance validly conferred the subpoena power on the commission. 1 The defendants, who are the city of Worcester and its city council, have expanded the scope of the declaratory relief [363 Mass. 138] sought by the plaintiffs and seek a declaration that the entire ordinance is void as beyond the power of the city council to adopt. The Massachusetts Commission Against Discrimination (MCAD) has submitted a brief as a friend of the court in support of the proposition that a municipality may properly enact an ordinance in the area of human rights.
To resolve the issue presented in this proceeding we must consider the authority of Massachusetts municipalities to adopt local ordinances and by-laws following the material changes which were made in art. 2 of the Amendments to the Constitution of the Commonwealth by the ratification in 1966 of art. 89 of the Amendments, commonly referred to as the Home Rule Amendment.
THE ORDINANCE.
In February of 1971, the Worcester city council adopted, as part of the city's revised ordinances, an ordinance establishing a human rights commission and an advisory human rights committee. The stated policy of the ordinance is 'to see that each individual regardless of his race, color, religious creed, national origin, sex, age or ancestry, shall have equal opportunity in or access to employment, housing, education, recreation and public accommodations; to assure that each individual shall have equal access to and benefit from all public services; to protect each individual in the enjoyment of his civil rights; and to encourage and bring about mutual understanding and respect among all individuals in the City by the elimination of prejudice, intolerence, bigotry, discrimination and the disorder occasioned thereby.' See § 1 of the ordinance. A five member human rights commission, to be appointed by the city manager, was given specific powers and duties in implementing the policy of the ordinance. 2
[363 Mass. 139]
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The commission has been given the power and duty to receive and investigate complaints, and to initiate its own investigation, of the following subjects: (a) discrimination in employment, housing, education, recreation and public accommodations where the discrimination is based on race, color, religious creed, national origin, sex,Page 272
age or ancestry; (b) denial of equal access to and benefit from public services; (c) violation of the civil rights of any person or group; and (d) the presence in the city of prejudice, intolerance, bigotry, discrimination and the disorder occasioned thereby. See § 5(1).The commission, acting by a majority of its members, is given the power to attempt by mediation to resolve any complaint within its jurisdiction and to recommend to the city manager or any governmental agency, such action 'as it feels will resolve any such complaint.' The [363 Mass. 140] commission is also authorized 'in the case of any unresolved complaint or in the case of any investigation which would be aided thereby, to hold hearings, subpoena witnesses, compel their attendance, administer oaths, take the testimony of any person under oath and in connection therewith to require the production of any evidence relating to any matter in question or under investigation before the Commission.' Any witness is expressly [363 Mass. 141] granted the right to be advised and represented by counsel present during any hearing. See § 5(2). 3
After the completion of any investigation or hearing on any complaint or matter not resolved by mediation, the commission has the duty either (a) to make a written report of its findings and recommendations to the city manager, the school committee, the MCAD or other governmental agency having jurisdiction of the matter in question or (b) 'to represent or cause to be represented any complainant who, in the opinion of the Commission, has a justifiable complaint which involves a matter outside the jurisdiction of the City Manager yet . . . within the jurisdiction of the Commission . . . (which) must be presented and processed by the Complainant before the MCAD or some other state or federal governmental agency or court . . ..' Representation by the commission may be provided only for those complaints for whom undue hardship would otherwise result. See § 5(3).
The commission additionaly may under certain limitations issue publications and the results of investigations and research, if it will tend to promote good will and minimize or eliminate discrimination. See § 5(4). The commission also has authority to cooperate with Federal, State and city agencies in developing certain courses [363 Mass. 142] of instruction and to enlist the cooperation of various groups to effectuate the policy of the ordinance. See § 5(5).
The ordinance provides for the appointment of an executive director of the commission to serve as its executive officer and for the appointment of a fifteen member advisory committee to the commission. The services of all city departments are to be available to the commission subject to the approval of the city manager or the school committee. The commission is required to adopt rules of procedure for the conduct of its investigation and hearings. The rules must 'ensure the due process rights of all persons involved in the investigations and hearings.' Each person who appears before the commission and avails himself of 'constitutional guarantees shall not be punished in any way' therefor.
Section 11 of the ordinance provides that '(n)othing in this ordinance shall be interpreted to contravene the General Laws of this Commonwealth.' Section 12 contains a severability clause.
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In general terms the ordinance grants broad investigatory powers to the commission, including the right to hold hearings. It also grants the power to attempt to mediate disputes without any right to require any person to participate in those mediation efforts. Although the commission may assist a person in advancing a justifiable complaint to the appropriate local, State or Federal agency or to a court, the commission has no authority to compel compliance, or punish for non-compliance, with any local ordinance or any State or Federal law relating to unlawful discrimination.
THE CONTROVERSY.
Following the adoption of the ordinance the commission requested the city council to appropriate funds to pay bills 'for serving subpoenas for the Human Rights Commission and witness fees.' He city solicitor rendered an opinion 'to the effect that Section 5(2) is invalid[363 Mass. 143] and that it would be illegal to appropriate funds for serving and processing subpoenas.' The council tabled the request 'until the controversy over the validity of Section 5(2) has been resolved.'
The opinion of he city solicitor is before us. It consists of a November, 1970, memorandum to the city solicitor from a legal assistant (prepared prior to the enactment of the ordinance) and deals not with the 'validity of Section 5(2)' as such but with the right of the commission to subpoena witnesses. From the date of the memorandum and from the preenactment recommendation of an ad hoc committee that the subpoena power not be used until a judicial determination (or legislation) clarifies the question, it is apparent that the issue of the right of the commission to use the subpoena power is one of long standing. The larger claim that the city had no authority to adopt such an ordinance at all appears to be a controversy of more recent origin, although it is now pressed with considerable vigor by the city.
The arguments of the city in opposition to the ordinance as a whole and to the right of the commission to use the subpoena power rest on substantially the same reasoning. All parties correctly recognize that the legislative powers of Massachusetts municipalities were materially affected by the Home Rule Amendment and by the enactment of the Home Rule Procedures Act (G.L. c. 43B). See Answer of the Justices, 356 Mass. 769, 770--771, 250 N.E.2d 450. 4
[363 Mass. 144] The city contends in part that the city council had no authority to enact the ordinance because the city purported to exercise a power or function which, under § 6 of the Home Rule Amendment and § 13 of the Home Rule Procedures Act, was 'inconsistent' with the General Laws enacted
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by the General Court on the subject of human rights. The city points to G.L. c. 151B which makes unlawful certain practies which discriminate because of 'race, color, religious creed, national origin, sex, age, or ancestry.' G.L. c. 151B, § 4, inserted by St.1946, c. 368, § 4, as amended. Chapter 151B authorizes the MCAD to investigate complaints, to subpoena witnesses, to compel their attendance, to hold hearings, to issue orders and to seek judicial relief, and further direcs the MCAD to formulate policies to effectuate the purpose of the chapter. 5 Additionally, the city asserts that the power purported to be exercised...To continue reading
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Frawley v. Police Comm'r of Cambridge, SJC–11903.
...latitude” in legislating on matters of local concern, including the authority and duties of its police department. Bloom v. Worcester, 363 Mass. 136, 154, 293 N.E.2d 268 (1973). See art. 89, § 6, of 46 N.E.3d 518 the Amendments to the Massachusetts Constitution (Home Rule Amendment). See al......
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Lovequist v. Conservation Commission of Town of Dennis
...--- Mass. ---- B, 392 N.E.2d 832 (1979); Anderson v. City of Boston, --- Mass. ---- C, 380 N.E.2d 628 (1978); Bloom v. Worcester, 363 Mass. 136, 293 N.E.2d 268 (1973). Relying on this constitutional provision, the plaintiffs assert that the Dennis wetlands protection by-law is unlawful beca......
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John Donnelly & Sons, Inc. v. Outdoor Advertising Bd.
...by-law will not render it invalid as repugnant to law. . . .' See Commonwealth v. Goodnow, 117 Mass. 114 (1875). In Bloom v. Worcester, 363 Mass. 136, 154, 293 N.E.2d 268, 279 (1973) this court said: 'As a general proposition the cases dealing with the repugnancy or inconsistency of local r......
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Com. v. Vitello
...v. California, 412 U.S. 546, 560--561, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973). Cf. Bloom v. Worcester, --- Mass. ---, --- - --- a, 293 N.E.2d 268 (1973). Preemption, however, is not to be lightly inferred where Congress has allowed for concurrent State regulation as long as the State statute ......
-
Frawley v. Police Comm'r of Cambridge, SJC–11903.
...latitude” in legislating on matters of local concern, including the authority and duties of its police department. Bloom v. Worcester, 363 Mass. 136, 154, 293 N.E.2d 268 (1973). See art. 89, § 6, of 46 N.E.3d 518 the Amendments to the Massachusetts Constitution (Home Rule Amendment). See al......
-
Lovequist v. Conservation Commission of Town of Dennis
...--- Mass. ---- B, 392 N.E.2d 832 (1979); Anderson v. City of Boston, --- Mass. ---- C, 380 N.E.2d 628 (1978); Bloom v. Worcester, 363 Mass. 136, 293 N.E.2d 268 (1973). Relying on this constitutional provision, the plaintiffs assert that the Dennis wetlands protection by-law is unlawful beca......
-
John Donnelly & Sons, Inc. v. Outdoor Advertising Bd.
...by-law will not render it invalid as repugnant to law. . . .' See Commonwealth v. Goodnow, 117 Mass. 114 (1875). In Bloom v. Worcester, 363 Mass. 136, 154, 293 N.E.2d 268, 279 (1973) this court said: 'As a general proposition the cases dealing with the repugnancy or inconsistency of local r......
-
Com. v. Vitello
...v. California, 412 U.S. 546, 560--561, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973). Cf. Bloom v. Worcester, --- Mass. ---, --- - --- a, 293 N.E.2d 268 (1973). Preemption, however, is not to be lightly inferred where Congress has allowed for concurrent State regulation as long as the State statute ......