Doherty v. Retirement Bd. of Medford

• Decision Date: 05 June 1997
• Docket Number: No. SJC-07325,SJC-07325
• Parties: Thomas K. DOHERTY v. RETIREMENT BOARD OF MEDFORD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 45

680 N.E.2d 45

425 Mass. 130

Thomas K. DOHERTY v. RETIREMENT BOARD OF MEDFORD.

No. SJC-07325.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Feb. 6, 1997.

Decided June 5, 1997.

John A. Baccari, Reading, for plaintiff.

Nicholas Poser, Boston, for defendant.

Before WILKINS, C.J., and LYNCH, O'CONNOR, FRIED and MARSHALL, JJ.

FRIED, Justice.

In a hearing before the retirement board of Medford (board), the plaintiff was found guilty of misappropriating funds from the city of Medford, pursuant to G.L. c. 32, § 15(1), thereby losing his entitlement to recover retirement deductions accumulated during his years as a police officer. Both the District Court and the Superior Court judges upheld this decision. Doherty claims that the board's decision should be reviewed pursuant to a writ of mandamus; the board proceedings improperly deprived him of his right to a jury trial; the board's decision was unsupported by the evidence; and his actions did not constitute a misappropriation of funds. We transferred the appeal on our own motion and we affirm.

I

Thomas K. Doherty was a police officer for the city of Medford from May 22, 1966, until September 4, 1985, when he was terminated following his conviction of two felonies in August, 1985. Doherty was sentenced to a term of from eighteen to twenty years for armed assault with intent to murder a former Metropolitan District Commission police officer, Joseph Bangs. See Commonwealth v. Doherty, 23 Mass.App.Ct. 633, 504 N.E.2d 681 (1987). While in prison, Doherty was tried as a codefendant in a Federal case involving multiple counts of conspiracy and RICO ¹ violations arising out of a scheme ("Examscam") in which police officers stole and sold advance copies of police entrance and promotional examinations along with their answers. ² Doherty was convicted on one count of general conspiracy and eleven counts of RICO violations. See United States v. Doherty, 867 F.2d 47, 52 (1st Cir.), cert. denied, 492 U.S. 918, 109 S.Ct. 3243, 106 L.Ed.2d 590 (1989).

On November 9, 1985, Doherty's wife, acting under power of attorney, submitted a written request to the board seeking a refund of Doherty's accumulated retirement deductions which had been withheld from Doherty's earnings during his tenure with the police department and were held by the Medford retirement system in its annuity savings fund. At the time of the request, these deductions totaled $25,404.93. After a period of delay, this refund request was renewed on December 3, 1992. In response, the board notified Doherty that it was going to consider the forfeiture of his deductions under G.L. c. 32, § 15(2), and § 16(1). The board based this potential forfeiture on the ground that Doherty had misappropriated the funds of the city of Medford, pursuant to G.L. c. 32, § 15(1), by supplying his son, Michael Doherty, with an advance copy of the October, 1983, police entrance examination and answers which Michael then used "to fraudulently obtain employment as a City of Medford police officer" by obtaining a perfect score on the examination. Allegations to this effect had originally been brought in the Federal Examscam case, in which a jury found Doherty not guilty of the charge relating to his son Michael. The board's notice informed Doherty that he had a right to request a hearing on this matter. ³

Prior to the hearing, Doherty objected on the ground that G.L. c. 32, § 15(1), was unconstitutional because it allowed the board to direct a forfeiture of salary deductions without a civil jury verdict. The board's subsequent decision indicated that it had no jurisdiction to consider this claim and a hearing was held before the board as scheduled.

The hearing lasted two days. During that time, the board considered testimony given by prosecution witness Joseph Bangs in the Examscam case, as it was recorded in transcript volume 48 in the matter of United States v. Doherty, 675 F.Supp. 726 (D.Mass.1987). Despite the fact that Doherty had been acquitted of providing his son with the 1983 entrance examination, the board found Bang's testimony to be credible and sufficient, when considered in conjunction with Michael Doherty's testimony before the grand jury, to deny Doherty's application for a refund of his accumulated deductions. The board went on to determine that from January 6, 1987, through April 12, 1989, Michael Doherty was paid $157,050.55 for his services with the Medford police, charging Doherty with misappropriation of funds in this same amount. The board's certificate of decision was issued the same day on which the evidentiary hearing concluded.

Doherty appealed from the board's ruling to the District Court, which affirmed the board's decision. Seeking review, Doherty filed an action in the nature of mandamus in the Superior Court. The judge ordered that the complaint be amended to an action in the nature of certiorari. ⁴ Doherty's subsequent motion for summary judgment was denied by the Superior Court which went on to affirm the District Court. On appeal before this court, Doherty argues that: (1) an action in the nature of mandamus is the correct vehicle for Superior Court review of a District Court proceeding under G.L. c. 32, § 16(3) (a ); (2) the provisions of G.L. c. 32, § 15(1), deprived him of a jury trial in violation of his Federal and State constitutional rights; (3) the board's determination that Doherty had misappropriated funds was not supported by the evidence; and (4) it is not "misappropriation" under G.L. c. 32, § 15(1), when a public employee provides his son with an advance copy of a police entrance examination with answers and, based on the results of his examination, the son is subsequently hired and paid a salary by the city of Medford.

II

Doherty sought review of the board's decision in the District Court, pursuant to G.L. c. 32, § 16(3) (a ). This section provides that "[t]he decision of the court shall be final," and we have stated in the past that "certiorari is the only way of reviewing decisions declared final by statute." MacKenzie v. School Comm. of Ipswich, 342 Mass. 612, 614, 174 N.E.2d 657 (1961).

Doherty seeks review in the nature of mandamus, rather than certiorari, because, in his own words "[t]he standard of review under G.L. c. 249, § 4 (certiorari), appears to be significantly less exhaustive than that standard under G.L. c. 249, § 5 (mandamus)." The Superior Court judge was correct in "order[ing] an amendment of the pleadings from a writ of mandamus to a writ of certiorari, in the interest of justice." We have resisted expansion of the application of mandamus proceedings and approved the common law rule "that mandamus is a remedy for [administrative] inaction and [is] not available where action has already been taken." Reading v. Attorney Gen., 362 Mass. 266, at 269, 285 N.E.2d 429, quoting Rines v. Justices of the Superior Court, 330 Mass. 368, 373, 113 N.E.2d 817 (1953). "It is well established that mandamus does not lie if any other effective remedy exists." County Comm'rs of Middlesex County v. Sheriff of Middlesex County, 361 Mass. 89, 90-91, 278 N.E.2d 751 (1972). See also Coach & Six Restaurant, Inc. v. Public Works Comm'n, 363 Mass. 643, 644, 296 N.E.2d 501 (1973) (mandamus granted only "where there is no other adequate and effectual remedy"). The plaintiff makes no argument that an action in the nature of certiorari is unavailable in this case, but instead seeks a mandamus proceeding because the standard of review in such "appears to be de novo."

Both Doherty and the board agree that the appropriate standard of certiorari review is a "substantial evidence" standard, meaning "such evidence as a reasonable mind might accept as adequate to support a conclusion." New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 466, 420 N.E.2d 298 (1981), quoting Boston Edison Co. v. Selectmen of Concord, 355 Mass. 79, 92, 242 N.E.2d 868 (1968). "Under the substantial evidence test, a reviewing court is not empowered to make a de novo determination of the facts, to make different credibility choices, or to draw different inferences from the facts found by the [agency]." Pyramid Co. v. Architectural Barriers Bd., 403 Mass. 126, 130, 525 N.E.2d 1328 (1988), quoting Medi-Cab of Mass. Bay, Inc. v. Rate Setting Comm'n, 401 Mass. 357, 369, 517 N.E.2d 122 (1987).

III

Doherty argues that withholding his accumulated deductions pursuant to G.L. c. 32, § 15(1), violates art. 12 and art. 15 of the Massachusetts Declaration of Rights because it does not provide for a hearing by a civil jury, but instead permits forfeiture if the board finds misappropriation of governmental funds or property. ⁵ Doherty bases this contention on the premise that G.L. c. 32, § 15(1), is a penal statute, relying heavily on the fact that the statute speaks in terms of forfeiture. See Commonwealth v. One 1972 Chevrolet Van, 385 Mass. 198, 201, 431 N.E.2d 209 (1982) ("[f]orfeiture is punitive because it results in total loss of the property"). Because he construes the statute as penal, he concludes that it cannot be implemented by an agency of its own accord.

Article 12 deals primarily with criminal matters and provides that "no subject shall be ... deprived of his property ... but by the judgement of his peers, or the law of the land," We have never determined whether G.L. c. 32, § 15(1), is penal in nature or not. See Arruda v. Contributory Retirement Appeal Bd., 28 Mass.App.Ct. 366, 368 n. 3, 551 N.E.2d 537 (1990) (leaving this issue open). We have applied art. 12 in other forfeiture cases and concluded that an individual was entitled to a jury trial. See, e.g., Commonwealth v. One 1972 Chevrolet Van, supra. Doherty notes that in Collatos v. Boston Retirement Bd., 396 Mass. 684, 488 N.E.2d 401 (1986), we held that G.L. c. 32, § 15(3A), which precludes an individual from receiving a retirement allowance or return of his deductions if he is convicted of specific statutory crimes, was...