Godfrey v. Chief of Police of Wellesley

• Decision Date: 27 July 1993
• Docket Number: No. 91-P-1460,91-P-1460
• Citation: 616 N.E.2d 485,35 Mass.App.Ct. 42
• Parties: Patrick T. GODFREY v. CHIEF OF POLICE OF WELLESLEY.
• Court: Appeals Court of Massachusetts

Page 485

616 N.E.2d 485

35 Mass.App.Ct. 42

Patrick T. GODFREY v. CHIEF OF POLICE OF WELLESLEY.

No. 91-P-1460.

Appeals Court of Massachusetts Norfolk.

Argued March 4, 1993.

Decided July 27, 1993.

Dennis R. Brown, Wellesley, for plaintiff.

Albert S. Robinson, Town Counsel, Wellesley, for defendant.

Before PERRETTA, FINE and JACOBS, JJ.

PERRETTA, Justice.

When the plaintiff, Patrick T. Godfrey, refused to cooperate with the Wellesley police in their investigation of recent random shootings, the defendant, the chief of police (chief), revoked his license to carry firearms. Godfrey sought judicial review of the revocation in the District Court pursuant to G.L. c. 140, § 131. The judge found that the chief had not abused the discretion conferred upon him by the statute and dismissed the petition. Godfrey next claimed an appeal to the Superior Court under G.L. c. 231, § 97. After a hearing on cross-motions for summary judgment brought under Mass.R.Civ.P. 56, 365 Mass. 824 (1974), each of which was accompanied by materials not presented in the District Court, the Superior Court judge ordered entry of judgment for the chief. Godfrey's argument before us is that it was error to allow the chief's motion where the rule 56(c) materials demonstrated that there were questions of fact in dispute on the issue of whether the chief had revoked the license because Godfrey had asserted his constitutional rights. We conclude that the proceeding in the Superior court was an action in the nature of certiorari and not a hearing de novo. As there are no substantial errors of law apparent on the District Court record adversely affecting material rights, we affirm the judgment.

1. The facts. A license to carry firearms issued under G.L. c. 140, § 131, as appearing in St.1986, c. 481, § 2, is subject to revocation "for cause at the will of the authority issuing the same." We recite those facts which prompted the chief's decision as they appear in his notice of revocation to Godfrey. The police were investigating recent incidents of gunshots having been fired into a school, a private residence, and an automobile. They had attempted to speak with and to question Godfrey about the shootings because they had information that the gun might have belonged to him and that it might have been disposed of near an elementary school.

Notwithstanding the serious danger that existed, especially to children, Godfrey invoked his constitutional rights and refused to cooperate with the police. The chief stated that while he respected Godfrey's constitutional entitlements, he also had to recognize the "serious danger which continues to exist." It is on that basis that the chief determined that Godfrey was "no longer a suitable person to be licensed to carry a firearm."

2. Judicial review. The chief's decision was subject to judicial review in the District Court pursuant to § 131, which provides that a "justice of said court, after having heard all of the facts, may direct the license be reinstated if he finds that there was no reasonable ground for revoking said license." After the District Court judge found that the chief had acted "well within his statutory authority" and dismissed the petition, Godfrey claimed an appeal to the Superior Court under G.L. c. 231, § 97, as appearing in St.1973, c. 1114, § 193.

As pertinent, § 97 reads: "[A] party aggrieved by the judgment of a district court in a civil action which could not have been removed to the superior court may appeal therefrom to said court.... The case shall be entered in the superior court ... and shall there be tried and determined as if originally entered therein." Although Godfrey asserted his constitutional rights and refused to testify at the District Court hearing on his petition, he somewhat altered his course in the Superior Court. Apparently relying upon the final words of § 97--"and determined as if originally entered therein"--Godfrey filed a "pre-hearing memorandum" in which he identified the witnesses he intended to call to testify and the documents he intended to introduce in evidence to show that the revocation was retaliatory and not for cause. He also opposed the chief's motion for summary judgment with a sworn affidavit in which he stated, for the first time, that he did not now or ever own a firearm nor did he have any information "which would suggest" the facts recited by the chief in the notice of revocation. The Superior Court judge did not consider Godfrey's affidavit and, instead, confined himself to a review of the District Court record.

In determining whether the proceedings in the Superior Court were de novo, we first consider the nature of the petition for review in the District Court. In the strict sense, "judicial review" means a "re-examination of a proceeding, already concluded, for the purpose of preventing a result which appears not to be based upon the exercise of an unbiased and reasonable judgment." Commissioners of Civ. Serv. v. Municipal Court of the City of Boston, 369 Mass. 84, 87, 337 N.E.2d 682 (1975). Although § 131 gives the proceedings the "judicial review" denomination, the statute contemplates an evidentiary hearing. It directs that a decision be made "after having heard all of the facts." That is not to say, however, that the purpose of the hearing is to allow for a reversal of the chief's decision on the basis of a difference of opinion as to how he should have exercised the broad discretion conferred upon him by § 131. The District Court proceedings are narrow in scope, and the question for determination is whether, on all the facts, "there was [a] reasonable ground for revoking said license."

Neither the nature nor the purpose of a petition for judicial review under § 131 supports a claim of entitlement to de novo proceedings pursuant to G.L. c. 231, § 97. Because, by its own terms, § 97 applies only to civil actions "which could not have been removed to the superior court," we think it must be read in the context of G.L. c. 231, § 102C, § 103, and § 104, the removal and remand statutes. Those provisions serve to satisfy the right to trial by jury as guaranteed by art. 15 of the Massachusetts Declaration of Rights and to relieve congestion in the Superior Court. See Lubell v. First Natl. Stores, Inc., 342 Mass. 161, 163-165, 172 N.E.2d 689 (1961); Dwyer v. Piccicuto, 25 Mass.App.Ct. 910, 911 n. 5, 515 N.E.2d 596 (1987). See generally, Perlin & Connors, Handbook of Civil Procedure in the Massachusetts District Court §§ 2.1-2.16 (2d ed. 1990).

In those cases where actions have been brought to the Superior Court under G.L. c. 231, § 97, the section has been invoked because the aggrieved party had an independent statutory basis for appealing to that court, but no procedural vehicle by which to do so. See e.g., Gentile v. Rent Control Bd. of Somerville, 365 Mass. 343, 346 n. 3, 312 N.E.2d 210 (1974), citing Freedman v. Rent Control Admr. of Cambridge, 1 Mass.App.Ct. 836, 298 N.E.2d 868 (1973). As these cases reveal, § 97 does not create the substantive right to further proceedings. Rather, § 97 serves as a remedial substitute in those situations where a party has a right to further proceedings in the Superior Court but removal procedures are unavailable. See e.g., Hatfield v. Klimoski, 338 Mass. 81, 82-83, 153 N.E.2d 648 (1958); Walker v. Board of Appeals of Harwich, 388 Mass. 42, 45-48, 445 N.E.2d 141 (1983).

As there is neither a right to a jury determination in gun licensing matters under G.L. c. 140, § 131, cf. Commonwealth v. Mongardi, 26 Mass.App.Ct. 5, 7-8, 522 N.E.2d 984 (1988), nor an independent statutory basis for review beyond that provided for in § 131, Godfrey was not entitled to a de novo hearing in the Superior Court under G.L. c. 231, § 97. His sole remedy, therefore, was a "civil action in the nature of certiorari to correct errors in proceedings which are not according to the course of the common law, which proceedings are not otherwise reviewable by motion or by appeal...." G.L. c. 249, § 4, as appearing in St.1973, c. 1114, § 289. ¹

3. The standard of review. In considering whether an applicant should be granted a license or a renewal thereof under § 131, the licensing authority has been given ...