Hutcheson v. Director of Civil Service

• Decision Date: 31 March 1972
• Citation: 281 N.E.2d 53,361 Mass. 480
• Parties: Bellenden R. HUTCHESON v. DIRECTOR OF CIVIL SERVICE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 53

281 N.E.2d 53

361 Mass. 480

Bellenden R. HUTCHESON v. DIRECTOR OF CIVIL SERVICE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 5, 1972.

Decided March 31, 1972.

Joel Z. Eigerman, Boston, for plaintiff.

Terence P. O'Malley, Asst. Atty. Gen. (Walter H. Mayo, III, Asst. Atty. Gen with him), for Director of Civil Service and another.

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

BRAUCHER, Justice.

Dr. Hutcheson seeks declaratory relief against the Director of Civil Service (the director), the commissioner of the Department of Mental Health (the commissioner) and Dr. Klebanoff of determine whether the commissioner is compelled by G.L. c. 31, § 23, as amended, to appoint Dr. Klebanoff to the office of assistant commissioner for children's services, in preference to Dr. Hutcheson. A judge of the Superior Court has reserved and reported the case without decision on the pleadings and a statement of agreed facts.

Dr. Hutcheson is a resident of the Commonwealth, a doctor of medicine licensed to practise here, and a psychiatrist with board eligibility in child psychiatry and many years of professional experience in the field of mental health services for children. He is a World War II veteran under G.L. c. 31, § 21 (see G.L. c. 4, § 7, Forty-third), and holds a provisional appointment as assistant commissioner for children's services (G.L. c. 19, § 8, inserted by St. 1966, c. 735, § 1, as amended). The commissioner considers him the best qualified of those eligible for permanent appointment to that office and would so appoint him in the absence of a statutory mandate to the contrary.

Dr. Klebanoff is an employee of the Department of Mental Health, holds a doctorate in psychology, and is a disabled veteran under G.L. c. 31, § 23A. He received a lower examination grade than Dr. Hutcheson. On April 21, 1971, the director certified both as eligible, with a notation that under G.L. c. 31, § 23, Dr. Klebanoff as a disabled veteran must 'be appointed and employed in preference to all other persons, including veterans. (In case, however, . . . (Dr.) Klebanoff should decline the position, the following additional name (Dr. Hutcheson) is certified.)' On May 19, 1971, the director issued a new eligible list, containing three names: Dr. Klebanoff, with a notation that he is a disabled veteran; Dr. Hutcheson, with a notation that he is a veteran; and a third veteran, who has withdrawn his name.

Dr. Hutcheson contends that G.L. c. 31, § 23, as appearing in St.1954, c. 627, § 5, ¹ is repugnant to arts. 6 ² and 7 ³ of the Declaration of Rights of the Constitution of the Commonwealth and to the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. He attacks two aspects of the statute: the placing of disabled veterans ahead of other veterans on eligible lists, and the 'absolute preference' in the last sentence. We consider the two aspects separately.

1. The constitutionality of a preference for veterans in public employment has had a troubled history in this court, last reviewed in Commissioner of the Metropolitan dist. Comm. v. Director of Civil Service, 348 Mass. 184, 187--193, 203 N.E.2d 95. The original statute concerning civil service, St.1884, c. 320, required that the rules should provide for preference in appointments and promotions to honorably discharged veterans who served in the army or navy of the United States in time of war (§ 14, Sixth). In an opinion given to the House of Representatives in 1885, the Justices answered in the affirmative a question whether the provisions authorizing rules were constitutional but did not refer to the preference for veterans. Opinion of the Justices, 138 Mass. 601. Statute 1887, c. 437, expanded the statute to provide for the exemption of honorably discharged soldiers and sailors from civil service examinations, and the Justices in the same year declined to answer a general question submitted by the Governor and Council as to the validity of proposed rules. Opinion of the Justices, 145 Mass. 587, 592, 13 N.E. 15.

The leading case is Brown v. Russell, 166 Mass. 14, 43 N.E. 1005, decided in 1896, which 'has not been modified by later decisions.' Commissioner of the Metropolitan Dist. Comm. v. Director of Civil Service, supra, 348 Mass. at 192, 203 N.E.2d at 101. In Brown v. Russell this court held unconstitutional St.1895, c. 501, §§ 2 and 6, making the appointment of veterans to the detective force of the Commonwealth's district police compulsory, without examination, 'whether the appointing power of the commissioners think they are or are not qualified to perform the duties of the office or employment which they seek' (166 Mass. p. 24, 43 N.E. p. 1009). The court said (p. 25, 43 N.E. p. 1010) that 'it is inconsistent with the nature of our government, and particularly with articles 6 and 7 of our declaration of rights, that the appointing power should be compelled by legislation to appoint to public offices persons of a certain class, in preference to all others, without the exercise on its part of any discretion, and without the favorable judgment of some legally constituted officer or board designated by law to inquire and determine whether the persons to be appointed are actually qualified to perform the duties which pertain to the offices.' The court left open the possibility that a different rule might apply to lesser employments, not amounting to public offices, or to a preference for veterans who had been found qualified either by the appointing power or by examination (pp. 23--24, 43 N.E. p. 1009): 'It may be said that, other qualifications being equal, there are reasons to believe that a veteran soldier or sailor often will make a better civil officer than a person who never has been subjected to the discipline of service in war; and it is distinctly a public purpose to promote patriotism, and to make conspicuous and honorable any exhibition of courage, constancy, and devotion to the welfare of the state shown in the public service.'

Later the same year the Justice were asked their opinion with respect to a statutory provision that veterans who pass a civil service examination shall be preferred in appointment to all male persons not veterans. Opinion of the Justices, 166 Mass. 589, 44 N.E. 625. A majority of four justices answered that the provision was constitutional, 299, 304, 78 N.E. 481, 484 (preference for though not. Both opinions relied on the reasoning of Brown v. Russell, supra. In Mayor of Lynn v. Commissioner of Civil Service, 269 Mass. 410, 414, 169 N.E. 502, 503, decided in 1929, the court adopted the opinion of the majority of the Justices in the 1896 Opinion of the Justices 'as the judgment of the court in the present case,' citing also Ransom v. Boston, 192 Mass. 299, 304, 78, N.E. 481, 484 (preference for veterans 'was within the power of the Legislature'); Phillips v. Metropolitan Park Comm., 215 Mass. 502, 506, 102 N.E. 717, 719 (constitutionality 'much debated' and 'cannot go beyond closely confined boundaries'); Corliss v. Civil Service Com'rs, 242 Mass. 61, 65, 136 N.E. 356, 358 ('there are constitutional limitations to preferences in favor even of veterans'); Rich v. Mayor of Malden, 252 Mass. 213, 215, 147 N.E. 586, 587 ('The Legislature can confer on (certain) veterans . . . a preference in the classified civil service'). See Barnes v. Mayor of Chicopee, 213 Mass. 1, 4, 99 N.E. 464, 465 ('not necessary to consider' attack on veteran preference provisions, which 'are distinct and severable from the rest of the statute').

The Mayor of Lynn case and the 1896 Opinion of the Justices have since been accepted by this court as authoritative. Canty v. City Council of Lawrence, 275 Mass. 261, 263, 175 N.E. 481; Goodale v. County Com'rs of Worcester, 277 Mass. 144, 147--148, 178 N.E. 228; Malloy v. Mayor of Peabody, 299 Mass. 110, 114, 12 N.E.2d 197; Opinion of the Justices, 303 Mass. 631, 647--649, 22 N.E.2d 49; Younie v. Director of Div. of Unemployment Compensation, 306 Mass. 567, 570, 29 N.E.2d 137; MacCarthy v. Director of Civil Service, 319 Mass. 124, 64 N.E.2d 617; Opinion of the Justices, 320 Mass. 773, 781, 67 N.E.2d 588; Smith v. Director of Civil Service, 324 Mass. 455, 460--461, 87 N.E.2d 196; Opinion of the Justices, 324 Mass. 736, 742, 85 N.E.2d 238; McNamara v. Director of Civil Service, 330 Mass. 22, 25--26, 110 N.E.2d 840; Commissioner of the Metropolitan Dist. Comm. v. Director of Civil Service, 347 Mass. 184, 187--192, 203 N.E.2d 95. Nothing we say here is intended to impair that authority or to reopen the questions decided in the Mayor of Lynn case, supra.

2. The additional preference for disabled veterans now found in G.L. c. 31, § 23, was introduced by St.1922, c. 463. So far as it requires that the names of disabled veterans who pass the civil service examination and are not physically disqualified be placed ahead of other veterans on eligible lists, the statute was held constitutional in Smith v. Director of Civil Service, 324 Mass. 455, 460--461, 87 N.E.2d 196, 199: 'The petitioners contend that the disabled veterans' preference exceeds the permissible bounds of legislative power. It is argued that it cannot be said that a disabled veteran is more qualified for public service by his experience than is one not disabled, and that the quality of patriotism is 'not enhanced by the situation in which almost nobody, except a disabled veteran, can be appointed to a position in the civil service.' We think, however, that it is open to the Legislature to say that, whereas all veterans may be preferred because of their service in uniform, the public interest is served by additionally preferring those who have incurred disability in the course of their service.'

Decisions of this court both before and after the Smith case have had some limiting effect on the preference for disabled veterans. Hayes v. Hurley, 292...