Gardner v. Massachusetts Turnpike Authority

Decision Date02 June 1964
Citation199 N.E.2d 186,347 Mass. 552
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
PartiesAlfred GARDNER et al. v. MASSACHUSETTS TURNPIKE AUTHORITY et al.

Carl M. Sapers, Boston, (Marvin R. Finn and Harold M. Willcox, Boston, with him), for petitioners.

Edward O. Proctor, Boston, (M. Vance Munro, Boston, with him), for respondents.

Before WILKINS, C. J., and WHITTEMORE, CUTTER, KIRK and SPIEGEL, JJ.

WHITTEMORE, Justice.

This petition for enforcement of process and the respondents' counterclaim present questions concerning the validity of five summonses addressed to certain officers and employees of the Massachusetts Turnpike Authority and issued by the Commission appointed by the Governor pursuant to Res.1962, c. 146. The petitioners ask that an order issue that certain witnesses appear, that a witness who has already appeared produce records, and that certain questions already put to that witness be answered.

The cause was reserved by a single justice on the pleadings and the findings.

The one summons referred to in the petition was dated February 10, 1964, and was addressed to 'the Secretary or other persons having custody of the records of the * * * Authority'. It required attendance before the Commission 'to give evidence of what you know relating to the existence and extent of corrupt practices in government at state and local levels in the Commonwealth and in particular to the following: the operation of the * * * Authority.' It required the production of volumes 1 through 39 of the minutes of the meetings of the Authority.

An attorney for the Authority wrote the Commission on February 11, 1964, that the summons of February 10 was too broad and general. Stanley J. Britton, the person having custody of the minute books, appeared before the Commission on February 12 without the records and declined to answer certain questions. He appeared with express reservation of the Authority's objection as stated in the letter of February 11 and with an assertion of the inconvenience involved in bringing the thirty-nine minute books. Each book is about three inches thick. The books record the minutes of the Authority over the period from its inception in 1952 except that the two current minute books are not included. Britton testified that he referred to these older volumes very seldom and did not know how often others referred to them.

The four summonses put in issue by the counterclaim are addressed, respectively, to three employees and the secretary-treasurer of the Authority. They are in the form of the summons above described except for the statement of the particular inquiry. The summonses ordered attendance before the Commission on February 25, 1964, and informed the four prospective witnesses that their testimony would be sought as to the filing and storage of records in, and the operation of, the particular office for which each was responsible. None of these summonses asked the witness to bring records with him.

On February 25, 1964, an attorney for the Authority wrote the Commission that the persons summoned declined to appear because the summonses were too broad and general, failed to state any matter under examination with adequate specificity, and were issued in aid of unconstitutional practices and programs of the Commission. The motion for leave to file the counterclaim challenging these summonses was filed on February 21, and allowed on February 25.

Other facts are stated below.

1. This court has jurisdiction of the proceeding in all its aspects. The fourth paragraph of Res.1962, c. 146, authorizes the Commission to 'require by summons the attendance and testimony under oath of witnesses and the production before it of books and papers relating to any matter being investigated by it pursuant to the provisions of this resolve.' It authorizes any 'justice of the supreme judicial court or of the superior court * * * [to] compel the attendance of witnesses summoned as aforesaid and the giving of testimony under oath before the commission in furtherance of any investigation under this resolve in the same manner and to the same extent as before said courts.' This grant of enforcing power is to be read with the grant of power to the Commission to 'require' the production of papers; so read, it authorizes enforcement of a summons to produce papers. O'Shea v. Holyoke, 345 Mass. 175, 179, 186 N.E.2d 608.

2. The respondents do not and rightly could not contend that the Commission lacks power to make any investigation of the doings of the Authority. Included in the mandate to the Commission is the investigation and study of 'corrupt practices in government at state and local levels.' The Authority was created by St. 1952, c. 354, and by § 3 of that act was 'placed in the state department of public works [as] a body politic and corporate' and 'constituted a public instrumentality * * * [the exercise of the powers of which were to be] deemed and held to be the performance of an essential governmental function.' See Massachusetts Turnpike

Authy. v. Commonwealth, Mass., 199 N.E.2d 175. a

3. The respondents contend that the Commission has embarked on an unconstitutional program that must be enjoined. It has become, in effect, they say, an agency for law enforcement and prosecution of crime rather than an investigatory arm of the Legislature and hence it violates the mandate of art. 30 of the Declaration of Rights requiring separation of the executive, legislative, and judicial powers. The attack is based on a statement in the Third Report of the Commission dated December 2, 1963, and on the practices of the Commission and the attorney who is its counsel. The report states: 'The Commission has a primary duty to report to the General Court any corrupt practices that its investigations may uncover and to recommend remedial legislation * * *. Its reports of corrupt practices and its recommendations for remedial legislation will not carry weight unless the existence and nature of corruption can be shown by naming the persons who have been guilty of corrupt practices and by describing the patterns of their corruption. This cannot be done until their guilt has been proven by their conviction.'

The practice of the Commission is to 'submit to the Department of the Attorney General such evidence * * * as in the opinion of the Commission warrants such submission.' This is in personal discussions between general counsel for the Commission and representatives of the Attorney General, and by transmission of documents and transcripts. The findings of the single justice indicate that the policy of developing evidence to prove guilt will be applied to the summonses in suit, and that if 'the * * * [result] of * * * [the] summonses * * * [is to] show that the * * * Authority has been engaged in corrupt transactions, that evidence will be turned over to the appropriate authorities.'

The respondents assert that the Commission's preoccupation with law enforcement is also shown by the Attorney General's appointment of the attorney who is counsel for the Commission as a Special Assistant Attorney General and that attorney's participation, as a Special Assistant Attorney General, in the presentation to the grand jury of evidence obtained by the Commission. 1

The sixth paragraph of Res.1962, c. 146, expressly authorizes the Commission to submit evidence to the Attorney General or other law enforcement agency. This is a constitutional authorization. SHERIDAN V. GARDNER, MASS., 196 N.E.2D 303B.

The practice of the Commission as to use of the evidence to convict wrongdoers does not take its program outside the resolve or violate art. 30. Putting aside the appearances of counsel before the grand jury, we think that the respondents show no more than a commission determined to be effective in its assigned legislative task of the discovery of corruption in government and, in connection therewith, rightly and lawfully dealing with evidence of corruption which that task brings to light.

The respondents urge, however, that the appearances of counsel for the Commission before the grand jury violate art. 30 and make all its work illegal. The respondents suggest that the appearances have been made under the resolve's grant of power to counsel for the Commission so to appear. 2 They contend that the appointment of the attorney who is counsel for the Commission as an Assistant Attorney General is, in reality, a sham to be disregarded by the court. See Ayer v. Commissioner of Admn. 340 Mass. 586, 598, 165 N.E.2d 885. It follows, the respondents contend, that the Commission is not performing a legislative function in a part of its work that it has declared to be of great importance, and this so affects its proceedings that the Authority and its agents may resist the summonses. We reject the argument. Even if the appearances of counsel before the grand jury should be deemed violations of art. 30, or other constitutional provision, as to which we intimate no opinion, this would not invalidate the investigation which the Commission is carrying forward by issuing these summonses. This investigation is a legislative function. See Watkins v. United States, 354 U.S. 178, 200, n. 33, 77 S.Ct. 1173, 1 L.Ed.2d 1273. Counsel for the Commission serves that function in appearing before the Commission and assisting in its investigations. The respondents have no standing in this case to protest on constitutional grounds the conduct of criminal proceedings initiated against others. See HYNSON, WESTCOTT & DUNNING, INC. V. COMMISSIONER OF PUB. HEALTH, MASS., 195 N.E.2D 74C.

We need not determine whether the private rights of the respondent public officers or employees are so involved as to permit than to raise constitutional issues notwithstanding the rule stated in Assessors of Haverhill v. New England Tel. & Tel. Co., 332 Mass. 357, 362, 124 N.E.2d 917.

4. None of the five summonses is 'too broad and...

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