Canney v. Municipal Court of City of Boston

• Decision Date: 03 October 1975
• Citation: 335 N.E.2d 651,368 Mass. 648
• Parties: Michael P. CANNEY v. . Supreme Judicial Court of Massachusetts, Suffolk
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 651

335 N.E.2d 651

368 Mass. 648

Michael P. CANNEY

v. MUNICIPAL COURT OF the CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 9, 1975.

Decided Oct. 3, 1975.

Thomas C. Cameron, Boston, for plaintiff.

John F. Hurley, Asst. Atty. Gen., for defendant.

Before TAURO, C.J., and BRAUCHER, HENNESSEY and KAPLAN, JJ.

HENNESSEY, Justice.

This is an appeal from a judgment of a single justice of this court dismissing the plaintiff's civil complaint in the nature of certiorari brought before the single justice. See G.L. c. 249, § 4. See also Mass.R.Civ.P. 81(b), 365 Mass. --- (1974). The single justice ruled in substance that the Municipal Court of the City of Boston had properly sustained a demurrer to the plaintiff's petition to review the decision of the Civil Service Commission (commission). Briefly stated the questions to be resolved are two: (1) Did the commission and, thus, the Municipal Court have jurisdiction to hear the matters stated in the plaintiff's petition for review? and (2) If the commission and the court are found to be without jurisdiction to conduct such a review is the statutory scheme pursuant to which the plaintiff was reported as permanently separated from service on account of unauthorized absence unconstitutional as violative of due process rights? We answer both questions in the negative and we therefore affirm the decision of the single justice.

The facts are taken from the plaintiff's petition and under the former civil practice are considered as true for purposes of ruling on a demurrer. Shea v. Shea, 296 Mass. 143, 144, 4 N.E.2d 1015 (1936). The facts in so far as they are material to the issues presented need not be stated in detail. It is sufficient to note that the plaintiff, Michael P. Canney, was a civil service employee in the real property department of the city of Boston; that he absented himself from work for a period of approximately ten weeks allegedly due to illness; that his superiors did not accept the reports subsequently submitted to them by Canney's physicians but requested an independent examination at which Canney was found in good physical condition; and that, after a further period following that examination, Canney was notified by the commissioner of real rpoperty, the appointing authority under the applicable civil service laws, that Canney was to be considered permanently separated from work on account of his unauthorized absence. ¹ Canney claimed an appeal to the commission; following a hearing before a hearing officer designated by the commission, the appeal was dismissed for lack of jurisdiction. Further appeal to the Municipal Court of the City of Boston was foreclosed when the commission's demurrer was sustained on the ground that the court lacked jurisdiction. As stated, the single justice dismissed the complaint filed in the county court.

1. Jurisdiction of the Commission and the Municipal Court.

A dismissal for 'unauthorized absence' (see G.L. c. 31, § 1) as provided for at the time of this proceeding ² was rather an anomaly in the civil service laws in that such a dismissal was excluded from the general notice, hearing and appellate review provisions of G.L. c. 31, §§ 43, 45 and 46A. Indeed, G.L. c. 31, § 43(j), inserted by St. 1971, c. 179, § 4, expressly provides that '(t)he provisions of this section or sections forty-five and forty-six A shall not apply to any person who has been reported as on unauthorized absence as provided for in section eighteen.' Consequently, there is no appeal of right to the commission pursuant to § 43(b) nor is judicial review of the commission's decision obtainable in the District or Municipal Courts under the particulars of § 45. This statutory scheme, specifically § 43(j), makes perfectly clear that the commission and the Municipal Court were without jurisdiction and the demurrer was properly sustained.

The Legislature has clearly differentiated unauthorized absence from other grounds such as to constitute 'just cause.' G.L. c. 31, § 43, as amended through St.1970, c. 72, § 1. We presume that this difference in legislative treatment is based on experience obtained under prior laws. Up to 1969, c. 31, § 46C, did provide for review by the Director of Civil Service if the separation from service was on account of unauthorized absence; ³ the Director's decision under these predecessor statutes was in turn subject to further review by the commission. G.L. c. 31, § 2(b), as amended through St.1945, c. 725, § 1. See generally, Cushing v. Fire Commr. of Brookline, 345 Mass. 418, 187 N.E.2d 804 (1963). These review provisions were deleted by the statutory revision effected by St.1969, c. 3, § 3, and the addition, in 1971, of § 43(j), which precluded, in the case of unauthorized absence, application of the hearing and appeal procedures of §§ 43, 45 and 46A. See St.1971, c. 179, § 4.

In our opinion this represents a legislative determination that the full panoply of procedural processes usually available under §§ 43 and 45 is not suitable for questions involving unauthorized absence. ⁴ In any event, as will be shown, adequate provision has been made for notice, hearing and review in such cases.

2. Judicial Review. Given the clear directive of § 43(j), review by the single justice on the complaint in the nature of certiorari could have been limited to a finding that the demurrer had been properly sustained by the Municipal Court since review by certiorari is 'for the purpose of examining and correcting the errors of law manifest upon the record.' Fitzgerald v. Mayor of Boston, 220 Mass. 503, 506, 108 N.E. 355, 356 (1915). However, in his complaint before the single justice and in his appeal to this court the plaintiff argues that § 43(j), in so far as it purports to deprive a civil service employee who is reported as on unauthorized absence of the opportunities for notice, hearing, and judicial review, is unconstitutional as denying the employee due process of law. In these circumstances we deem it advisable, as did the single justice, to consider and resolve this issue since the question of a proper forum for hearing and an opportunity to be heard inexorably follows from our determination that neither the commission nor the Municipal Court has jurisdiction to review a dismissal for unauthorized absence.

The plaintiff asserts that by the operation of § 43(j) persons who have been reported on unauthorized absence, 'have no right to notice, hearing or appellate review under the civil service law,' and he suggests that '(a)ny time an appointing authority decides to rid himself of an employee, all he need do is arbitrarily, capriciously and untruthfully report him on unauthorized absence, and the employee has nowhere to turn because of subsection (j) of section 43.' ⁵ This is not an accurate description of the applicable law. First, under c. 31, § 18, '(w)henever an appointing authority reports an unauthorized absence to the director he shall mail a written statement to the person named in the report. The written statement shall inform said person that he is considered to have permanently and voluntarily separated himself from the service and that a report has been so filed with the director.' This notice procedure was followed in this case. Furthermore, the employee may provide the appointing authority with a statement of reasons as to the absence and on that basis the appointing authority may within fourteen days consider the employee for reinstatement. Thus, § 18 provides for the requisite notice.

Second, while hearings and appellate review under the particular procedures in §§ 43, 45, are foreclosed, a judicial hearing to review the legality of the finding of separation from service on account of unauthorized absence is available. Therefore the defendant's statement 'that the employee has no right to hearing or review' is erroneous. Although review under §§ 43 and 45 is usually the exclusive remedy to challenge, among other things, dismissal from civil service (Nevins v. Board of Pub. Welfare, 301 Mass. 502, 504, 17 N.E.2d 689 (1938) and cases cited therein), where those sections are not open to one challenging the legality of the appointing agency's action (as in this case, see § 43(j)), an alternate avenue of review is available.

One means of obtaining such review would be by seeking declaratory relief under G.L. c. 231A. ⁶ In this regard an analogy is to be drawn to those cases wherein the legality of the dismissal of a tenured schoolteacher has been reviewed in proceedings for declaratory relief. See, e.g., McCartin v. School Comm. of Lowell, 322 Mass. 624, 79 N.E.2d 192 (1948); Dimlich v. School Comm. of Andover, 344 Mass. 643, 184 N.E.2d 40 (1962); Kaplan v. School Comm. of Melrose, 363 Mass. 332, 294 N.E.2d 209 (1973). Cf. Wishart v. McDonald, 500 F.2d 1110, 1114--1115 (1st Cir. 1974). 'It is settled that a suit for declaratory relief will lie to challenge the legality of an administrative action even though such action is neither an 'adjudication' nor the promulgation of a 'rule,' provided that the other requirements of maintaining such a suit can be met.' Westland Housing Corp. v. Commissioner of Ins., 352 Mass. 374, 383, 225 N.E.2d 782 (1967), quoted in Haverhill Manor, Inc. v. Commissioner of Pub. Welfare,--- Mass. ---, --- ^a, 330 N.E.2d 180 (1975). In our view the requirements of maintaining an action for declaratory judgment are plainly met here, that is to say there is in this case an actual controversy based on the opposing assertion by the employee of a definite legal relation, status, or right and the denial by the appointing authority of that legal claim. For a discussion of the prerequisites to declaratory relief see School Comm. of Cambridge v. Superintendent of Schs. of Cambridge, 320 Mass. 516, 518, 70 N.E.2d 298 (1946). Cf. Smith v. Building Commr. of Brookline,--- Mass. ---, --- - --- ^b, 328 N.E.2d 866 (1975). Through an action for declaratory...