Breault v. Chairman of Bd. of Fire Com'rs of Springfield

• Decision Date: 13 October 1987
• Citation: 513 N.E.2d 1277,401 Mass. 26
• Parties: Richard J. BREAULT v. CHAIRMAN OF the BOARD OF FIRE COMMISSIONERS OF SPRINGFIELD. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1277

513 N.E.2d 1277

401 Mass. 26

Richard J. BREAULT v. CHAIRMAN OF the BOARD OF FIRE COMMISSIONERS OF SPRINGFIELD.¹

Supreme Judicial Court of Massachusetts Hampden.

Argued March 4, 1987.

Decided Oct. 13, 1987.

Harry P. Carroll, Deputy City Sol. (Richard T. Egan, City Sol., with him), for defendant.

Arthur D. Serota, Springfield, for plaintiff.

Marjorie Heins and Robert Sherman, Boston, for Civil Liberties Union of Massachusetts and another, amici curiae, submitted a brief.

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

LIACOS, Justice.

A judge of the Superior Court concluded, in a pretrial order, that, even though the acts complained of by the plaintiff were performed by the defendant solely in his capacity as a public official, he is not immune from liability under the Federal or State civil rights laws, 42 U.S.C. § 1983 (1982) and G.L. c. 12, §§ 11H and 11I (1986 ed.). ² The judge also denied the defendant's motion for summary judgment. The defendant appeals. We conclude that the judge did not err either as to the Federal or State civil rights claim in denying immunity to the defendant. Accordingly, we affirm.

The facts are these. By trade, the defendant is a funeral director. In 1978, the mayor of the city of Springfield (city) appointed him to serve, without compensation as a member of the board of fire commissioners of Springfield (board), a body charged inter alia with hiring and firing firefighters in conformance with the civil service laws. See G.L. c. 31, §§ 1 (definition of "[a]ppointing authority"), 48 and 51 (1986 ed.). From July, 1978, through November, 1984, the defendant served as chairman. The plaintiff was employed as a firefighter by the city. At times relevant to this case, he held a tenured position which was subject to the provisions of G.L. c. 31. In August, 1977, he was indicted on several criminal charges, including statutory rape. The plaintiff was advised by the chief of the fire department that he was at risk of permanent termination from employment if found guilty of conduct unbecoming a firefighter, but that he could request an unpaid leave of absence pending resolution of the charges against him. The plaintiff then made written request for a leave of absence "for thirty days or until my personal problem has been resolved." His request was granted.

In April, 1981, the plaintiff was tried and acquitted of the criminal charges against him. In June, he applied to the board for reinstatement as a firefighter. Told to appear at a monthly meeting of the board on August 4, 1981, he did so. The minutes of that meeting disclose that "[t]he Chairman asked [the plaintiff] if he had any claims against the Fire Department or the City," and whether "he had considered writing to the Commission that does not [sic ] hold the City harmless." The chairman expressed his "feel[ing] that any claim against the City or the Fire Department should be resolved before [the plaintiff] is considered for reinstatement." Although another commissioner suggested that the commission "does not want to make it sound like reinstatement ... is contingent upon whether or not any action is taken by him against the City ... Breault was asked if he would sign a statement that he would not bring any claims against the City or the Fire Department." When the plaintiff said "he was not sure, he would have to check with his lawyer ... [t]he Chairman said it was difficult to make a decision and they would wait to see what the Law Department comes up with." Because "[t]he Commission want[ed] an answer to their question about any claims against the City or the Fire Department," the matter was postponed until the next meeting. After more than two months had elapsed, plaintiff's counsel wrote to the board on October 21, 1981, indicating that the plaintiff was represented by counsel and inquiring about the status of Breault's request for reinstatement. On November 10, 1981, the board met and decided to reinstate the plaintiff, his reinstatement to take effect on November 23, 1981.

The plaintiff filed suit against the city and the chairman in December, 1982. In its first three counts, the complaint sought compensation for wrongs alleged to have resulted from his unpaid leave of absence. ³ Count IV alleged denial of the plaintiff's rights and privileges under the First, Fifth, and Fourteenth Amendments to the Constitution of the United States and demanded compensation pursuant to 42 U.S.C. § 1983. Concerning rights similarly grounded, count V alleged deprivation of those rights "by force, threats, coercion, and intimidation" and demanded compensation pursuant to G.L. c. 12, §§ 11H and 11I. In response to a series of motions in 1985, the judge allowed summary judgment for the defendant city on all counts of the complaint and for the defendant on count I. The defendant was denied summary judgment on the remaining counts. ⁴ On March 11, 1986, the judge denied the defendant's motions for reconsideration of summary judgment; and, in answer to the defendant's motion for a pretrial determination of qualified immunity from suit on counts IV and V, the judge ruled that the defendant is not immune from liability. The defendant filed a notice of appeal from the order denying immunity from liability on counts IV and V.⁵

1. Qualified immunity pursuant to § 1983. The defendant argues that qualified immunity was denied erroneously, and that this interlocutory appeal is properly before us. The plaintiff maintains the contrary.

a. Appropriateness of review. The judge's order did not conclude the plaintiff's action at the trial level, and in that sense it was not the sort of final judgment that is entitled to appellate review. See Kargman v. Superior Court, 371 Mass. 324, 329-330, 357 N.E.2d 300 (1976), and cases cited. Nonetheless, even where part of an action remains undetermined, we treat an order as final if it is to be executed presently with the result that any later appeal would be futile. Borman v. Borman, 378 Mass. 775, 779-780, 393 N.E.2d 847 (1979), relying on Vincent v. Plecker, 319 Mass. 560, 564 n. 2, 67 N.E.2d 145 (1946).

The defendant would not benefit from our rule of "present execution," as stated in Borman, if the asserted right to immunity is but a right to freedom from liability under § 1983, for in that case his right could be vindicated fully on appeal after trial. If, however, the asserted right is one of freedom from suit, the defendant's right will be lost forever unless that right is determined now, and his appeal is proper.

The controlling Federal authority clearly indicated that the immunity in question is an immunity from "the risks of trial." Harlow v. Fitzgerald, 457 U.S. 800, 816, 102 S.Ct. 2727, 2737, 73 L.Ed.2d 396 (1982). The immunity created by the Supreme Court for application to suits brought under this Federal statute is an immunity from suit, not just from liability. Mitchell v. Forsyth, 472 U.S. 511, 525-526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985) (plurality opinion, id. at 518, 530, 105 S.Ct. at 2817, stating that, by force of "collateral order doctrine," decision by Federal District Court denying qualified immunity to suit under § 1983 is appealable "final decision" within meaning of 28 U.S.C. § 1291, notwithstanding absence of final judgment). ⁶ Therefore, in the sense contemplated by our rule of present execution, Borman, supra, the judge's order denying qualified immunity is final, and the question of the validity of the judge's order is ripe for consideration by this court.

b. The denial of immunity. "Government officials performing discretionary functions may be shielded from liability for civil damages in a § 1983 action by the doctrine of qualified immunity. Harlow v. Fitzgerald, [457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982) ]; Davis v. Scherer, [468 U.S. 183, 194 n. 12, 104 S.Ct. 3012, 3019 n. 12, 82 L.Ed.2d 139 (1984) ] (immunity standard of Harlow applies in § 1983 actions). An official is entitled to immunity if, at the time of the challenged action, the statutory or constitutional right allegedly violated was not 'clearly established.' Harlow, 457 U.S. at 818, 102 S.Ct. at 2727]." Bonitz v. Fair, 804 F.2d 164, 166 (1st Cir.1986). Discussing the role of appellate courts pursuant to Mitchell, supra, the United States Court of Appeals for the First Circuit, in Bonitz v. Fair, supra, has emphasized that the scope of review is limited to questions of law, id., quoting Mitchell, supra 472 U.S. at 530, 105 S.Ct. at 2818, that is, whether (a) the acts complained of were "discretionary functions," not ministerial in nature, and (b) the statutory or constitutional rights allegedly violated were "clearly established." See Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3040, 97 L.Ed.2d 523 (1987) (principle of qualified immunity allows defendant to seek summary judgment on ground that, on "clearly established principles [of law]," he could have reasonably believed his acts to be lawful).

In this case, the judge withheld immunity under the Harlow standard because he concluded both that (a) when responding to the plaintiff's request for reinstatement, the defendant was performing a nondiscretionary, ministerial act, clearly mandated in the instant circumstance by G.L. c. 31, § 37 (governing reinstatement after voluntary leave of absence from a civil service position); and (b) even though "[t]he average layman may not be able to point immediately to the First Amendment to the United States Constitution or Article XI of the Declaration of Rights as the source" of the right allegedly violated, "the right of free access to the courts is ... so clearly established that a reasonable person in [the defendant's] position would have known about it." The defendant argues, however, that rights are not "clearly established" for Harlow purposes unless, at the time of the acts at issue, the rights were enshrined in...