Konstantopoulos v. Town of Whately

• Citation: 384 Mass. 123,424 N.E.2d 210
• Parties: Demetrios KONSTANTOPOULOS v. TOWN OF WHATELY et al. 1
• Decision Date: 27 July 1981
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 210

424 N.E.2d 210

384 Mass. 123

Demetrios KONSTANTOPOULOS v. TOWN OF WHATELY et al. ¹

Supreme Judicial Court of Massachusetts, Franklin.

Argued April 6, 1981.

Decided July 27, 1981.

Edward W. Pepyne, Jr., Ashfield, for defendants.

Donal T. Dunphy, Northampton, for plaintiff.

Before HENNESSEY, C. J., and BRAUCHER, LIACOS, ABRAMS and NOLAN, JJ.

NOLAN, Justice.

In this consolidated appeal we are asked to consider whether the Probate Court had subject matter jurisdiction over two separate actions brought by the plaintiff for injunctive and declaratory relief against the town licensing authorities who had revoked his entertainment license under G.L. c. 140, § 183A. We conclude that the Probate Court lacked subject matter jurisdiction over these actions.

The plaintiff is the owner and operator of the Castaway Lounge located in Whately, Massachusetts. Since April, 1977, he has been licensed to provide live entertainment, including exotic dancing, at his lounge. In December, 1979, the plaintiff sought to renew his license for 1980. The board of selectmen (board) renewed the license. The 1980 license issued to the plaintiff did not specifically include exotic dancing.

Under authorization by license, the plaintiff had presented exotic dancing, performed by women, since 1977. On April 12, 1980, the plaintiff advertised an exotic dance performance by males. The performance took place on April 14. Both before and after the performance, the board received various complaints, including complaints that the numbers in attendance exceeded the permissible capacity of the building. On April 16, 1980, the board notified the plaintiff at 5:30 P.M. that a special meeting would be held at 7 P.M. that evening. At the meeting the board revoked his live entertainment license, but granted him permission to continue to provide female exotic dancing through April 19, to avoid liability on a contract. ²

On April 18, the plaintiff sought a temporary restraining order from the Probate Court, on the ground that a revocation of his license would cause him immediate and irreparable monetary injury, loss, and hardship. The Probate Court judge temporarily restrained the licensing board from revoking the plaintiff's entertainment license until there was a judicial determination on the matter.

Thereafter, the plaintiff filed an action in the Probate Court requesting that the court reform the license to conform to the mutual intent of the parties that the 1980 license include exotic dancing. Additionally, he sought a declaration that the license was illegally revoked because of inadequate notice and hearing, and a declaration that the revocation was arbitrary and capricious. Further, he requested the court to enjoin the board from revoking his entertainment license. In response, the board moved to dismiss the action for lack of jurisdiction over the subject matter. It also moved for summary judgment. The board argued that the hearing given to the plaintiff on April 16, 1980, adequately met the requirements of G.L. c. 140, § 183A. Alternatively, the board asserted that the plaintiff had never properly filed a written application for the 1980 license, and had been issued a license which did not permit exotic dancing. Therefore, it contended, the plaintiff was not in fact entitled to any hearing upon revocation.

After a hearing on the merits the judge found that all of the parties knew and understood that the plaintiff was entitled to provide exotic dancing under the 1980 license. The judge declared that, on the basis of the mutual understanding of the parties, the plaintiff was entitled to have an amended license issued to him. The judge further declared that the board had improperly revoked the plaintiff's license because it had not given the plaintiff an adequate notice and hearing. Therefore, the plaintiff's entertainment license was still in effect. The judge concluded that the decision was without prejudice to the right of the board to conduct another revocation hearing. The board appealed this judgment.

Subsequently, on July 9, 1980, the board held a second revocation hearing in accordance with the procedural guidelines set forth by the judge in the first action. ³ It again voted to revoke the plaintiff's entertainment license. The plaintiff returned to Probate Court. In a second action, he sought a declaration that his entertainment license had been again improperly revoked. He also sought injunctive relief. The board again contended that the Probate Court lacked subject matter jurisdiction over the action. The second Probate Court judge issued a temporary restraining order against the board to prevent the license revocation, and reserved and reported the jurisdictional issue to the Appeals Court. ⁴ G.L. c. 215, § 13. Mass.R.Civ.P. 64, 365 Mass. 831 (1974). Mass.R.Civ.P. 5, 365 Mass. 745 (1974). We consolidated the two cases and transferred them to this court on our own motion. G.L. c. 211A, § 10(A).

1. Subject matter jurisdiction. In deciding whether the Probate Court properly exercised jurisdiction over the subject matter of this case, we must determine whether the specific matter before us falls within the general grant of jurisdiction given to the Probate Courts. See Glick v. Greenleaf, --- Mass. ---, ---, ^a 419 N.E.2d 272 (1981). General Laws c. 215, § 6, confers upon the Probate Courts jurisdiction over "all cases and matters of equity cognizable under the general principles of equity jurisprudence." ⁵ See J. R. Nolan, Equitable Remedies § 39 (1975). We have construed G.L. c. 215, § 6, as conferring general equity jurisdiction on the Probate Courts. See Williams College v. Attorney Gen., 375 Mass. 220, 222-223, 375 N.E.2d 1225 (1978). Indeed, we found that "the Legislature intended to make requirements for commencing and prosecuting suits in equity in both the Superior and Probate courts as closely similar as possible." Anderson v. Anderson, 354 Mass. 565, 567, 238 N.E.2d 868 (1968). See Wood v. Wood, 369 Mass. 665, 668-669, 342 N.E.2d 712 (1976).

Nevertheless, despite the breadth of this jurisdictional grant in equity, the Probate Courts remain courts of limited jurisdiction. Cf. Chakrabarti v. Marco S. Marinello Assocs., Inc., 377 Mass. 419, 386 N.E.2d 1248 (1979). The merger of law and equity under the Massachusetts Rules of Civil Procedure did not extend the jurisdiction of the Probate Courts. Wood v. Wood, 369 Mass. 665, 668, 342 N.E.2d 712 (1976). See Mass.R.Civ.P. 1, 18(a), and 82, 365 Mass. 730, 764, 843 (1974). Similarly, G.L. c. 231A, § 1, authorizing courts, including the Probate Courts, to grant declaratory relief, does not expand the jurisdiction of the courts upon which it confers power to render declaratory decrees. Sisters of the Holy Cross of Mass. v. Brookline, 347 Mass. 486, 491, 198 N.E.2d 624 (1964). Rather, the statute makes it clear that this power is conferred on the courts "within their respective jurisdictions." G.L. c. 231A, § 1. See Gardner v. Berkman, 365 Mass. 481, 482, 312 N.E.2d 563 (1974). Cf. Wellesley College v. Attorney Gen., 313 Mass. 722, 731, 49 N.E.2d 220 (1943). Accordingly, we must determine whether the grant of general equity jurisdiction to the Probate Court comprehends an action seeking review of the revocation of an entertainment license under G.L. c. 140, § 183A. See Williams College v. Attorney Gen., 375 Mass. 220, 222-223, 375 N.E.2d 1225 (1978); HOMSTEAD V. WHATELY, --- MASS.APP. ---, 418 N.E.2D 356 (1981)^b; FOSTER V. EVANS, --- MASS.APP. ---, 412 N.E.2D 915 (1980)^c, further appellate review granted, --- Mass. --- (1981). ^d Cf. Building Inspector of Northampton v. Springfield Advertising Co., 353 Mass. 763, 233 N.E.2d 210 (1968); Duane v. Quincy, 350 Mass. 59, 62, 213 N.E.2d 250 (1966). We turn to a discussion of the first action brought by the plaintiff.

2. Hearing on the merits. It seems clear that review of an action of an administrative board in suspending or revoking a license is not a matter cognizable under the general principles of equity jurisprudence. Instead of a proceeding in equity, the traditional remedy was an action at law by writ of certiorari. Administrator of the Office of Price Administration v. Chook, 320 Mass. 187, 191-192, 68 N.E.2d 662 (1946). See, e. g. Bennett v. Aldermen of Chelsea, 361 Mass. 802, 282 N.E.2d 669 (1972); Marrone v. City Manager of Worcester, 329 Mass. 378, 108 N.E.2d 553 (1952); Morley v. Police Comm'r of Boston, 261 Mass. 269, 159 N.E. 41 (1927), cert. denied sub nom. Morley v. Wilson, 276 U.S. 625, 48 S.Ct. 320, 72 L.Ed. 738 (1928). See also Springfield Preservation Trust, Inc. v. Springfield Historical Comm'n, --- Mass. ---, --- - ---, ^e 402 N.E.2d 488 (1980); Scudder v. Selectmen of Sandwich, 309 Mass. 373, 34 N.E.2d 708 (1941).

Although Mass.R.Civ.P. 81(b), 365 Mass. 841 (1974), abolished the writ of certiorari, relief in the nature of certiorari is available in the Superior Court pursuant to G.L. c. 249, § 4. Stetson v. Selectmen of Carlisle, 369 Mass. 755, 758, 343 N.E.2d 382 (1976). See, e.g., FOSTER FROM GLOUCESTER, INC. V. CITY COUNCIL OF GLOUCESTER, --- MASS.APP. ---, 407 N.E.2D 363 (1980)^f. The relief sought by the plaintiff construction of the requirement in G.L. c. 140, § 183A, for a "hearing" and review of the grounds on which the board based its revocation decision is precisely the relief granted under the traditional writ of certiorari. See Scudder v. Selectmen of Sandwich, 309 Mass. 373, 376-377, 34 N.E.2d 708 (1941); Dixie's Bar, Inc. v. Boston Licensing Bd., 357 Mass. 699, 703, 259 N.E.2d 777 (1970). Clearly, declaratory relief construing the provisions of G.L. c. 140, § 183A, would be appropriate in a court of competent jurisdiction. See Mosey Cafe, Inc. v. Licensing Bd. for Boston, 338 Mass. 199, 154 N.E.2d 585 (1958). Cf. Stetson v. Selectmen of Carlisle, 369 Mass. 755, 758-759, 343 N.E.2d 382 (1976). However, declaratory relief under G.L. c. 231A, § 1, is not a substitute remedy for an...