Bos. Police Comm'r Dennis White v. City of Bos.
| Decision Date | 25 May 2021 |
| Docket Number | Docket: 2184cv01138-D |
| Parties | BOSTON POLICE COMMISSIONER DENNIS WHITE, PLAINTIFF, v. CITY OF BOSTON AND ACTING MAYOR KIM JANEY, DEFENDANTS |
| Court | Massachusetts Superior Court |
Dates: May 25, 2021
Present: Hon. Heidi E. Brieger Justice of the Superior Court
County: SUFFOLK, ss.
Plaintiff Boston Police Commissioner Dennis White (the "Commissioner") brings this action against the City of Boston ("Boston") and its Acting Mayor, Kim Janey (the "Acting Mayor") seeking a temporary restraining order and a preliminary injunction (the "Motion") enjoining the Acting Mayor fro'm removing him from, his position pursuant to the removal provision in Chapter 322, Section 7, of the Acts of 1962 (the "Removal Provision") until this Court holds an evidentiary hearing on whether there is cause to terminate him. The Removal Provision requires the Acting Mayor to give notice, convene a hearing, and provide cause for the Commissioner's removal. While the Commissioner suggests that the Acting Mayor has communicated her intent to replace him, there has been no removal as of this date because the filing of the Motion forestalled the requisite hearing and finding of cause.
After a hearing on Zoom and careful review of the parties' multiple written submissions, and for the reasons set forth below, the Commission r's motion is DENIED.
The following is based upon the pleadings, affidavits, and the parties' arguments made in support of and in opposition to the Motion.1
A life-long public servant employed by the Boston Fire and Police Departments, the Commissioner was appointed to lead the Boston Police Department ("BPD") on February 1, 2021, by Marty Walsh, then Mayor of Boston. Days after assuming his new duties, information surfaced concerning past allegations of domestic violence. Mayor Walsh thereafter placed the Commissioner on administrative leave pending completion of an investigation of the allegations. The Commissioner has not since resumed his duties.
Upon Mayor Walsh's departure to a new position in the federal government, the Acting Mayor took office and thereby assumed responsibility for - among other pressing issues - resolution ofBPD's leadership: A newly-completed investigative report into the Commissioner's alleged domestic violence, coupled with the Acting Mayor's negative assessment of the Commissioner's conduct during the investigation, led the Acting Mayor to conclude that she wanted to "move [the Boston Police Department] in a new direction," Commissioner Affidavit 137, earring that the Commissioner would be removed and another BPD official would be appointed to replace him.2
According to the Commissioner, on May 14, 2021, the Acting Mayor called to inform him of her intention to remove him and to invite him to a "hearing" that would occur later that day. After this conversation, the Commissioner received a "Notice oflntent to Dismiss," dated May 14, 2021, and a copy of the investigator's report, The notice described the conduct the Acting Mayor believed gave her "cause" to remove the Commissioner and referenced the hearing. The notice described the hearing as "an opportunity to provide me [the Acting Mayor] any information you want me t? consider before I make my final decision."
Angered and displeased by the Acting Mayor'.s purported "rush to judgment," on May 14, 2021, the Commissioner filed the instant lawsuit and Motion asking this Court to temporarily restrain and permanently enjoin the Acting Mayor from removing him as Commissioner until the Court conducts an evidentiary hearing on whether cause exists to terminate him. The Commissioner did not attend the hearing, nor did the Acting Mayor announce his removal on May 14, 2021. The investigator's report was released to the public at some point that day and has since garnered press attention.
"A preliminary injunction is an extraordinary 'remedy never awarded as of right," Winter v. Natural Res. Def Council, Inc., 555 U.S. 7, 24 (2008), and "should not be granted unless the plaintiff[] ha[s] made a clear showing of entitlement thereto." Student No. 9 v. Board of Educ., 440 Mass. 752, 762 (2004). This Court has broad discretion to grant or deny injunctive relief. Lightlab Imaging, Inc. v. Axsun Technologies, Inc., 469 Mass. 181, 194 (2014).
To prevail on his motion, the Commissioner must make the familiar tripartite showing: "(1) a likelihood of success on the merits [of his claims]; (2) that irreparable harm will result from denial of the injunction; and (3) that, in light of the [Commissioner's] likelihood of success on the merits, the risk of irreparable harm to the [Commissioner] outweighs the potential harm to the defendant[s] in granting the injunction." Tri-Nel Mgmt., Inc. v. Board of Health of Barnstable, 433 Mass. 217, 219 (2001), citing Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 617 (1980). Because the Commissioner seeks injunctive relief against a governmental body, he must also show that the issuance of an injunction would not adversely affect the public interest.3 Id.
Applying this standard, the Court concludes that the Commissioner is not entitled to an injunction because he is unlikely to succeed on the merits and has failed to show irreparable harm.
In this action, the Commissioner claims that he is entitled under both the Removal Provision and the United States Constitution to an evidentiary hearing before this Court (including the opportunity to examine and cross-examine witnesses) having the dual purpose of permitting him to clear his name publicly and eliciting a judicial determination of whether the Acting Mayor can establish due cause to remove him:[4] The Acting Mayor, on the other hand, asserts that she is statutorily and constitutionally authorized to remove the Commissioner for cause so long as she gives him an opportunity to be heard, that is, an opportunity to refute her stated reasons for removing him. The Court agrees with the Acting Mayor.
The Removal Provision provides that the Boston police commissioner "may, after notice and hearing, be removed by the mayor of [Boston] for cause." Acts of 1962, c. 322, § 7. The plain language of the provision'clearly provides that the fact-finder-or "cause-finder" in this case - is the Acting Mayor, not this Court. Moreovet, nothing in Chapter 322 of the Acts of 1962 requires that the s invitation to graft onto the statute a requirement that the Acting Mayor hold - or participate in - such a proceciding. Accordingly, the Court concludes the Removal Provision does not provide a basis for an evidentiary hearing before this Court.
The Court reaches the same conclusion to the extent the Commissioner argues that he is entitled to such a proceeding pursuant to the Due Process Clause of the Fourteenth Amendment. The Commissioner first argues:that he is entitled to a pretermination evidentiary hearing because he has a property interest in his' position. The Court agrees with the Commissioner that he has a property interest and is therefore entitled to some due process prior to his termination. See Wojcikv. Massachusetts State Lottery Comm'n, 300 FJd 92, 102 (1st Cir. 2002) ( that an employee who can be removed only for cause ordinarily has a constitutionally protected property interest in his continued employment); Higgins v. Town of Concord, 246 F. Supp. 3d 502, 514 (D. Mass. 2017) (); Fontana v. Comm'r of Metro. Dist. Comm'n, 34 Mass. App. Ct. 63, 69 (1993) () (emphasis in original). However, the pretermination process to which he is entitled is quite minimal. O 'Neill v. Baker, 210 F.3d 41, 47-50 (1st Cir. 2000), citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,542, 545-546 (1985). See also Gilbert v: Hamar, 520 U.S. 924,929 (1997) (); Wojcik, 300 F.3d at 102 (1st Cir. 2002) (...
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