Hooper v. Goldstein

• Decision Date: 08 May 1968
• Docket Number: No. 184-M,184-M
• Citation: 104 R.I. 32,241 A.2d 809
• Parties: William C. HOOPER v. Harry GOLDSTEIN et al. P.
• Court: Rhode Island Supreme Court

Page 809

241 A.2d 809

104 R.I. 32

William C. HOOPER v. Harry GOLDSTEIN et al.

No. 184-M.P.

Supreme Court of Rhode Island.

May 8, 1968.

Reargument Denied June 19, 1968.

Beals, Sweeney & Jerue, David F. Sweeney, Providence, for petitioner

Robert J. McOsker, City Sol., Edward F. Malloy, Asst. City Sol., Providence, for respondents.

OPINION

JOSLIN, Justice.

By a writ of certiorari the petitioner seeks to quash a decision of the respondent hearing board dismissing him or approving his dismissal from the police department of the city of Providence.

The case arises out of a series of events which took place on the morning of April 25, 1967. The petitioner, then a member of the city's permanent police department for about 11 years, had been detailed to prevent automobile traffic from proceeding along a portion of a public highway which was being resurfaced. He reported to his duty station at seven in the morning and all went well until about 9:15 a.m. when he observed an automobile approaching along the newly resurfaced pavement. The operator was John Orabona. Even though petitioner signaled in an attempt to prevent the vehicle from proceeding on the newly resurfaced highway, it continued in his direction at a slow rate of speed and did not stop until it reached the point where he was standing.

What then happened is disputed. Whether or not petitioner was struck by Orabona's automobile as it stopped; whether Orabona was struck by petitioner's baton or otherwise assaulted by him or whether instead he was assaulted by Orabona; and which of the two used profanity and, if so, what the language was, are all matters on which the testimony of petitioner, Orabona, and the other witnesses is in irreconcilable conflict. It is clear, however, that at some point petitioner opened the automobile door and dragged Orabona from the vehicle, and that a scuffle ensued, in the course of which Orabona suffered bruises and contusions about his head, face and eyes. A patrol wagon was then summoned, and Orabona was taken to the police station. The petitioner accompanied him, and after preparing a report of the incident, returned to his post. Upon completion of his tour of duty, he returned to police headquarters and was advised that the chief of police, who by then had investigated the morning's events, had suspended him from the force.

On May 11, 1967, the commissioner of public safety's office notified petitioner to appear, with counsel if he so elected, at 10 a.m. on May 25, 1967 before a hearing board composed of the commissioner of public safety, the director of personnel, and the probate judge to answer charges preferred against him by the chief of police for alleged violations of the rules and regulations of the police department. A copy of the charges and supporting specifications was attached to the notice.

Each of the six charges preferred was for an alleged violation of a specific section of the department's regulations. In substance, they were: (1) improper use of a baton or the use of more force than was necessary for the safe custody of a prisoner or for overcoming resistance; (2) use of excessive force in effecting an arrest; (3) misfeasance; (4) unnecessary violence to a citizen or prisoner; (5) conduct unbecoming an officer; and, (6) conduct tending to cast disrepute on the department. Although there were separate specifications for each of the six charges, each specification in substance was a restatement of the accusation that petitioner had assaulted or had used excessive force against Orabona on April 25, 1967.

The hearing took two days, and petitioner was present and represented by counsel throughout. He was found 'not guilty' on the first charge, but 'guilty' of the five others, and was discharged as an officer of the department.

I

One of the grounds upon which petitioner now seeks relief is that the record contains no evidence of the departmental rules and regulations. That deficiency, he argues, made it impossible, initially for the board and now for us on review, to decide whether the rules and regulations upon which the charges against him were preferred and for the violation of which he was dismissed had in fact been promulgated and whether they were in fact in existence. He brought this question upon the record when, at the close of the hearing before the board, he moved, without success, that the charges against him be dismissed '* * * on the ground (that) there is * * * no credible evidence on the record, that he has violated any (of the) rules and regulations of the City of Providence Police Department.'

The fallacy in his argument is its assumption that the board could not take cognizance of the departmental rules and regulations without requiring them to be proved in the same manner as other factual matters. It is, of course, true that, except as otherwise provided by statute, specific municipal ordinances, or the specific provisions of such ordinances, are evidentiary facts which must be proved and are not susceptible to judicial notice by a court of general jurisdiction. Town of Lincoln v. Cournoyer, 95 R.I. 280, 186 A.2d 728; Tessier v. LaNois, 97 R.I. 414, 198 A.2d 142. That prohibition stems from the long held notion that '* * * such ordinances * * * stand upon the same footing as private laws, the laws of other states and of foreign countries, which must be averred and proven like other facts.' Tipp v. District of Columbia, 69 App.D.C. 400, 401, 102 F.2d 264, 265. A refinement of that rule, however, permits in some states and requires in others a municipal tribunal to judicially notice ordinances which are the law of the forum. Such a court, the authorities say, stands in the same relationship to municipal ordinances as does a court of general jurisdiction to public laws. Tipp v. District of Columbia, supra; Page v. Wieland, 137 Ohio St. 198, 28 N.E.2d 583; Dibble v. District of Columbia, 35 A.2d 825 (D.C.Mun.Ct.App.); Banks v. B. F. Saul Co., 212 A.2d 537 (D.C.Ct.App.); Orose v. Hodge Drive-It-Yourself Co., 132 Ohio St. 607, 9 N.E.2d 671, 111 A.L.R. 954; Sisk v. Town of Shenandoah, 200 Va. 277, 105 S.E.2d 169; State v. Duranleau, 99 N.H. 30, 104 A.2d 519, 47 A.L.R.2d 1166.

The warrant for an administrative tribunal to recognize the rules and regulations of the agency within which the tribunal exists is found in the same rationale which permits a municipal court to dispense with the necessity of formal proof of an ordinance enacted by the same municipality in which that court sits. In each instance, recognition may be taken because the tribunal stands in a peculiar relationship to the ordinance or regulation which it officially notices. Thus a municipal tribunal may recognize the ordinance enacted by the municipality which created it; and the hearing board, which the Providence charter (sec. 67 as amended by P.L.1951, chap. 2723, sec. 16) authorizes to act within the police department, may notice the rules and regulations promulgated by the appropriate officials of that department.

The refinement extends even further and permits this court, although ordinarily confined to the record on appeal, to take judicial notice of those ordinances or regulations which an inferior tribunal of original jurisdiction may have properly noticed. Orose v. Hodge Drive-It-Yourself Co., supra; Greif v. Dullea, 66 Cal.App.2d 986, 998, 153 P.2d 581, 588; BonBright v. Biller, 67 Ohio App. 421, 36 N.E.2d 173. While there are authorities contra such as Anderson v. Adamson, 79 S.D. 429, 112 N.W.2d 612, and General Services Corp. v. Board of Commissioners, 75 N.M. 550, 408 P.2d 51, the view which permits recognition is in our judgment preferable. The reason for our preference has been given by the U.S. Supreme Court which in an early case said: 'But in this court exercising an appellate jurisdiction, whatever was matter of law in the court appealed from is matter of law here, and whatever was matter of fact in the court appealed from is matter of fact here.' Hanley v. Donoghue, 116 U.S. 1, 6, 6 S.Ct. 242, 245, 29 L.Ed. 535, 537. Wigmore, in a different context, puts it otherwise, but arrives at the same result when he says: 'But the curious layman will ask, in most of these cases, why did not the appellate Court send to the law library for the book and be done with the bother of looking up precedents to authorize and excuse not doing that? Or why not, in oral argument, take a recess, until counsel fetched the book and marked the page? Or even (!!!) why not call up both counsel by telephone and peremptorily order 'habeas corpus istius libri'?' 9 Wigmore, Evidence, (3d ed.) § 2572, pp. 553-54.

It is to be observed, moreover, that it was not until both parties had rested that petitioner raised before the board what he now claims was the fatal defect of the prosecution's failure to prove the departmental rules and regulations. Petitioner knew he was charged with the violation of certain specific departmental rules and regulations. A copy of the charges and specifications was attached to the notice of the hearing which was served on him. It not only cited by part and section the specific regulation upon which each charge was based, but went further and quoted each such regulation in whole or in part. If petitioner had doubts about the publication, or the existence, or the accuracy of those rules and regulations, he could have manifested those doubts either by a prehearing motion for their production or by other appropriate motion during the course of the hearing. That he failed to do either was in no way occasioned by any fault of the prosecution. The board, having noticed the rules and regulations, was warranted in assuming that they were, in fact, as set forth in the charges, and that petitioner if he had found them disputable, would have disputed them by evidence. 9 Wigmore, Evidence, supra, § 2567, p. 535.

II

Another of petitioner's arguments is that the borad exceeded its jurisdiction in failing...