Goldblatt v. Corporation Counsel of Boston

• Decision Date: 17 December 1971
• Citation: 277 N.E.2d 273,360 Mass. 660
• Parties: Louis GOLDBLATT v. CORPORATION COUNSEL OF BOSTON et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 273

277 N.E.2d 273

360 Mass. 660

Louis GOLDBLATT v. CORPORATION COUNSEL OF BOSTON et al. ¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 7, 1971.

Decided Dec. 17, 1971.

Mack K. Greenberg, Asst. Corp. Counsel, for the Corp. Counsel of the City of Boston.

James W. Kelleher, Boston, for Edward F. Riley.

Monroe L. Inker, Newtonville (Charlotte A. Perretta, Edward M. Dangel and Leonard Poretsky, Boston, with him), for Louis Goldblatt.

Before TAURO, C.J., and CUTTER, REARDON, QUIRICO and HENNESSEY, JJ.

CUTTER, Justice.

Mr. Goldblatt, an attorney, seeks declaratory relief with respect to the actions of Boston's Corporation Counsel (Mr. Herbert P. Gleason), as appointing authority, in attempting to fill the position of senior legal assistant in Boston's law department. One Superior Court judge overruled Mr. Gleason's demurrer and plea in bar to the bill for declaratory relief. The plea of Edward F. Riley, who was appointed to the position, also was overruled. Another Superior Court judge in findings, rulings, and an order for decree declared invalid the appointment of Riley to the position and ordered that Mr. Goldblatt be appointed to the position. A final decree was entered in accordance with that order. Mr. Gleason and Riley appealed from the final decree and from the several interlocutory rulings adverse to them, respectively. The evidence is reported. There is a report of material facts with respect to the overruling of the pleas. The essentially undisputed facts are stated on the basis of the judges' findings except as otherwise indicated below.

Mr. Goldblatt has been employed for thirty-five years by the city. Since 1939 he has held a civil service position in the city's law department. Riley is not a member of the bar. The evidence shows that he is not a graduate of a law school or of a college but that he has had long experience in dealing with tax titles. He is now, by virtue of the disputed appointment, a senior legal assistant in the law department. He was given a temporary appointment to that post upon the retirement of a member of the Massachusetts bar who formerly had held the position.

The director of civil service (acting under G.L. c. 31, § 8) announced an examination for promotion to the vacant position, describing those eligible to take the examination. The announcement did not provide that in order to be eligible a candidate must be a member of the bar. Both Riley and Mr. Goldblatt were within the class described as eligible. The duties of the position were described (emphasis supplied), 'Duties: Under supervision, to advise the Real Property Board regarding foreclosed tax title(s) and to draw up deeds on foreclosed real estate; to represent the City of Boston before the Land Court in all matters pertaining to real estate; to advise the Collector-Treasurer as to the validity of tax titles; to examine titles in the Registry of Deeds; and to perform related work as required.' Only two candidates, Riley and Mr. Goldblatt, took the examination. Each passed but Mr. Goldblatt received the higher grade. Mr. Gleason, the appointing authority, selected Riley for the position and submitted (see G.L. c. 31, § 15, par. C as amended by St.1955, c. 643, § 9) a statement of reasons for selecting Riley (instead of Mr. Goldblatt, whose name appeared at the top of the list of persons certified). The director of civil service 'approved the selection and later upheld the appointment . . . (against Mr. Goldblatt's) challenge to it.' Mr. Goldblatt's appeal (G.L. c. 31, § 2(b)) to the Civil Service Commission (the commission was denied unanimously. ²

The reported evidence discloses that, despite the job description (quoted above), announced by the director of civil service, the duties in fact performed by Riley are largely routine investigatory, administrative, and clerical operations carried out under the direction and supervision of the Corporation Counsel and those of his associates who are members of the bar. Riley was the sole witness. He testified that he did not appear before the Land Court and that his advice on legal matters relating to tax titles was (like his other work) subject to supervision by lawyers. A good deal of this other work involved checking tax title documents, statistical work, supervising clerical work, checking notices and procedure, and considering the possibilities of collection through taking over a property and collecting its rents. One lawyer works under his supervision and handles the Land Court cases. ³

1. The first question for resolution is whether this controversy is properly presented by a bill for declaratory relief under G.L. c. 231A. A subsidiary question is whether all necessary parties are before the court. Mr. Gleason and Riley contend that, if a bill for declaratory relief can be maintained, the director of civil service and the commission are necessary parties.

The record incompletely describes the pertinent facts concerning Mr. Goldblatt's administrative appeal to the commission. In any event, he now attempts to circumvent the normal method of review of the commission's decision, which would be by certiorari. See School Committee of Salem v. Civil Serv. Commn., 348 Mass. 696, 697--698, 205 N.E.2d 707. See also DiRado v. Civil Serv. Commn., 352 Mass. 130, 132--135, 224 N.E.2d 193. This is not a case where an appeal lies within G.L. c. 31, § 45 (as amended through St.1955, c. 407, § 2; see later amendment by St.1970, c. 711), for that section relates only to commission action with respect to a civil service employee who has been 'discharged, removed, suspended, laid off, transferred or lowered in rank or compensation, or whose office . . . was abolished.'

Certiorari in the circumstances provides an adequately broad remedy to permit Mr. Goldblatt to show, if it be fact and if it be material, that the commission arbitrarily declined to receive evidence. This alleged failure appears to be one of his contentions. The commission's return to any writ of certiorari should be sufficiently complete to disclose the nature of its action with respect to Mr. Goldblatt's request that it receive evidence and whether the commission's actions or conclusions were warranted by the evidence. See G.L. c. 249, § 4 (as amended through St.1963, c. 661, § 1). If the commission's return in fact had proved to be inadequate, appropriate requests for a wholly sufficient extension of the record could have been made. See SOUTHWICK BIRDS & ANIMALS, INC. V. COUNTY COMMRS. OF WORCESTER COUNTY, MASS., 273 N.E.2D 581.^A See also DiRado v. Civil Serv. Commn., 352 Mass. 130, 132--133, 224 N.E.2d 193. We do not suggest that, in this area, declaratory relief is never available to test the right of a civil service appointee to hold his office or to obtain decision of some issue concerning commission policies and actions of wide application or general concern. Compare Meenes v. Goldberg, 331 Mass. 688, 690--692, 122 N.E.2d 356; Squantum Gardens, Inc. v. Assessors of Quincy, 335 Mass. 440, 443, 140 N.E.2d 482; Massachusetts Assn. of Tobacco Distribs. v. State Tax Commn., 354 Mass. 85, 87--88, 235 N.E.2d 557. No special circumstances, however, appear on this record which make such action appropriate or which reveal any necessity for departure from the use of certiorari, the normal method of review. See Nearis v. Gloucester, 357 Mass. 203, 205, 257 N.E.2d 467. Many of the same considerations are here present which have led us to deny declaratory relief, where adequate and useful administrative remedies have seemed more appropriate. See Board of Selectmen of Truro v. Outdoor Advertising Bd., 346 Mass. 754, 759--760, 196 N.E.2d 218. See also LEXINGTON NURSING HOME, INC. V. RATE SETTING COMMN., MASS., 266 N.E.2D 317^B.

We perceive, also, no way in which issues of concern to the Civil Service Commission or the director of civil service may properly be determined finally without their participation. Because the demurrer and plea of the director of civil service were sustained, neither the commission nor any representative of the commission has participated in this case before this court. Unlike Seskevich v. City Clerk of Worcester, 353 Mass. 354, 357, 231 N.E.2d 376, the present controversy involves the propriety of actions of the director of civil service and of the commission, which more appropriately may be dealt with by direct review of those actions. In the circumstances, even if declaratory relief had been appropriate at all, there was a clear failure to continue as parties persons with important interests likely to be affected. See Harvey Payne, Inc. v. Slate Co., 342 Mass. 368, 370, 173 N.E.2d 285. Cf. Id., 345 Mass. 488, fn. 1, 188 N.E.2d 562. Mr. Gleason's demurrer and his and Riley's pleas should have been sustained or the judge should have taken appropriate action under G.L. c. 231A, § 3. See MARMER V. BOARD OF REGISTRATION OF...