Collatos v. Boston Retirement Bd.

• Decision Date: 05 February 1986
• Citation: 488 N.E.2d 401,396 Mass. 684
• Parties: George N. COLLATOS v. BOSTON RETIREMENT BOARD et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 401

488 N.E.2d 401

396 Mass. 684

George N. COLLATOS v. BOSTON RETIREMENT BOARD et al. ¹

Supreme Judicial Court of Massachusetts Norfolk.

Argued Dec. 4, 1985.

Decided Feb. 5, 1986.

Marie M. Lawlor, Asst. Corp. Counsel, Boston, for city of Boston, intervener.

Donald K. Stern, Boston, for plaintiff.

James F. O'Donnell, for Boston Retirement Bd., submitted a brief.

Before WILKINS, LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

LIACOS, Justice.

The outcome of this appeal depends on our interpretation of G.L. c. 32, § 15 (3A) (1984 ed.), a statute mandating the forfeiture of retirement benefits by public employees who have been convicted of certain offenses. The parties filed cross-motions for summary judgment in the Superior Court. Judgment was entered for the plaintiff. The defendants appealed. We transferred the appeal to this court on our own motion.

The defendants argue that the language of the statute is to be construed broadly, so that conviction of a Federal offense will result in forfeiture of benefits. The plaintiff argues that the statute may be applied only to those persons convicted of the specific offenses designated by the Legislature. We agree with the latter contention, and affirm.

The plaintiff, George N. Collatos (Collatos), was an employee of the Boston Redevelopment Authority who submitted his resignation on March 2, 1982, to be effective on March 15, 1982. Two days after the effective date of his resignation, Collatos pleaded guilty and was convicted in the United States District Court of a violation of 18 U.S.C. § 1951 (1982). ² Nevertheless, the Boston retirement board (Board) approved Collatos's superannuation retirement application on July 22, 1982, and he began receiving his retirement benefits as of the effective date of his resignation. On January 4, 1983, G.L. c. 32, § 15(3A), became effective. ³ On August 29, 1983, the Board notified Collatos that his retirement benefits were terminated by a vote of the Board as of August 22, 1983. ⁴ The Board's decision followed an opinion of the corporation counsel of the city of Boston (city) that G.L. c. 32, § 15(3A), required termination of benefits.

Collatos filed a complaint against the Board seeking a declaration that the Board's action was unlawful. The city was allowed to intervene. The parties then filed a statement of agreed facts. The trial judge granted Collatos's motion for summary judgment.

It is "[w]ell established ... that '[t]he duty of statutory interpretation is for the courts.' Cleary v. Cardullo's Inc., 347 Mass. 337, 344 (1964)." Casey v. Massachusetts Elec. Co., 392 Mass. 876, 879, 467 N.E.2d 1358 (1984). The language of the statute is clear and unambiguous. Hashimi v. Kalil, 388 Mass. 607, 609, 446 N.E.2d 1387 (1983). Hoffman v. Howmedica, Inc., 373 Mass. 32, 37, 364 N.E.2d 1215 (1977). The statute imposes a penalty on employees convicted of certain offenses. In addition to the punishment provided for the violation of G.L. c. 268A, the Legislature sought to enforce the criminal law by suspending the sword of retirement benefits forfeiture over those employees who otherwise might be tempted to transgress. As further punishment for the abuse of their public positions, convicted employees lose not only the benefits of the public-employee retirement system but also the return of their "accumulated total deductions." G.L. c. 32, § 15(3A).

A statute designed to enforce the law by punishing offenders, rather than simply by enforcing restitution to those damaged, is in the nature of a penal statute. See 3 C. Sands, Sutherland Statutory Construction § 59.01 (4th ed. 1974). Cf. Brown v. Taunton, 16 Mass.App. 614, 618-619, 454 N.E.2d 488 (1983) (construing the forfeiture provisions of G.L. c. 268A, § 25). Forfeiture of property, though it may also have the purpose of preventing further illicit activity involving the property, is punitive. Commonwealth v. One 1972 Chevrolet Van, 385 Mass. 198, 201, 431 N.E.2d 209 (1982). Statutes seeking to protect the public, or society as a whole, against injury are commonly viewed as penal in nature. Sackett v. Sackett, 8 Pick. 309, 319 (1829). Sands, supra.

It is an ancient rule, to which we have long adhered, that "[p]enal statutes must be construed strictly 'and not extended by equity, or by the probable or supposed intention of the legislature as derived from doubtful words; but that in order to charge a party with a penalty, he must be brought within its operation, as manifested by express words or necessary implication.' " Libby v. New York, N.H. & H.R.R., 273 Mass. 522, 525-526, 174 N.E. 171 (1930), quoting Cleaveland v. Norton, 6 Cush. 380, 383 (1851). Commonwealth v. Clinton, 374 Mass. 719, 721, 374 N.E.2d 574 (1978). Commonwealth v. Hayden, 211 Mass. 296, 297, 97 N.E. 783 (1912). We examine the statute, therefore, particularly mindful that its words are not to be stretched to accomplish a result not expressed.

The statute operates "after final conviction of an offense set forth in section two of chapter two hundred and sixty-eight A or section twenty-five of chapter two hundred and sixty-five pertaining to police or licensing duties." G.L. c. 32, § 15(3A). The Legislature has chosen two crimes that are to be enforced by the additional mechanism of § 15(3A), and it has precisely denoted them. Not only is the statute specific in enumerating the particular statutory violations triggering its operation, but it specifies that only a portion of one of the two enumerated sections is involved. The Legislature recognized the exactitude required in a penal statute, and the language of the statute demonstrates the necessary particularity. Thus, it is appropriate to follow the maxim that the statutory expression of one thing is an implied exclusion of other things omitted from the statute. County of Middlesex v. Newton, 13 Mass.App. 538, 542, 434 N.E.2d 1297 (1982). Cf. Brady v. Brady, 380 Mass. 480, 484, 404 N.E.2d 75 (1980).

The Legislature, specifying the crimes to which the statute would apply, used the term "set forth," which, as two Federal courts have said in unrelated circumstances, is a precise term meaning "disclose in full, clear, concise and exact terms," Union Carbide Corp. v. Borg-Warner Corp., 550 F.2d 355, 360 (6th Cir. 1977) (patent case), and denotes a specific, not general, idea, Cohen v. United States, 366 F.2d 363, 368 (9th Cir. 1966) (directions to counsel in...