Lavash v. Kountze

• Citation: 604 F.2d 103
• Decision Date: 10 August 1979
• Docket Number: No. 79-1109,79-1109
• Parties: William E. LAVASH, Jr., Plaintiff-Appellant, v. Wallace H. KOUNTZE, Jr., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 103

604 F.2d 103

William E. LAVASH, Jr., Plaintiff-Appellant, v. Wallace H. KOUNTZE, Jr., Defendant-Appellee.

No. 79-1109.

United States Court of Appeals, First Circuit.

Argued June 7, 1979.

Decided Aug. 10, 1979.

Joseph F. Byrnes, Jr., Milford, Mass., with whom Aldred B. Cenedella, III, Milford, Mass., was on brief for plaintiff, appellant.

Betty E. Waxman, Asst. Atty. Gen., Boston, Mass., with whom Frances X. Bellotti, Atty. Gen., Boston, Mass., was on brief, for defendant, appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

PER CURIAM.

The issue in this case is whether appellant was denied equal protection and due process because, under Massachusetts law, civil service examinees are allowed to inspect and obtain review of essay examination results, but not the results of multiple choice examinations.

The district court, in a comprehensive and thoughtful opinion, found no constitutional violation and granted the defendant's motion for summary judgment. We affirm.

The Facts

Plaintiff-appellant, a sergeant in the Waltham Police Department, took a Massachusetts civil service examination in order to qualify for the rank of police lieutenant. The examination, which was administered by defendant-appellee, consisted solely of multiple choice questions. Appellant was notified that he scored 81% On the examination. Through his attorney, he promptly requested by letter that he be allowed to inspect the examination and his answers thereto and that he be allowed to appeal each of the answers which he believed to be incorrectly graded. This request was denied on the grounds that under Massachusetts law, a civil service examinee did not have the right to inspect or appeal the results of a multiple choice test. ¹

The Equal Protection Claim

Appellant agrees that the rational basis standard is to be used in determining whether the Massachusetts statute meets the equal protection requirement of the constitution. Bauza v. Morales Carrion, 578 F.2d 447, 450-51 (1st Cir. 1978). He contends, however, that the district court erred in its application of that test to the implicated statute. No case law is cited to support appellant's position and we have found none directly on point.

In allowing inspection and review of essay examinations, the Massachusetts legislature recognized that the subjective process of grading such tests is much more susceptible to error and abuse than the automatic grading of multiple choice tests. At oral argument, appellant's counsel candidly acknowledged that the chance of clerical error was not the issue, since the multiple choice tests are, on request, checked for clerical errors. ² While it is conceivable that a review of multiple choice examinations might reveal an understandable misinterpretation of the meaning of a question or uncover an error by the preparer in the determination of the correct answer to a question, these risks, in the judgment of the Massachusetts legislature, did not justify the expense and effort of opening up multiple choice tests to review. The law recognizes that no system can be made infallible.

In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some "reasonable basis," it does not offend the Constitution simply because the classification "is not made with mathematical nicety or because in practice it results in some inequality." Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 55 L.Ed. 369.

Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970).

The judgment of the Massachusetts legislature to restrict review of civil service examinations to essay tests was rational and not unreasonable. It does not contravene the constitutional guarantee of equal protection under the fourteenth amendment.

The Due Process Claim

Appellant contends that he has a constitutionally protected property interest in being fairly evaluated for promotion under the Massachusetts civil service system. Massachusetts has a detailed statutory procedure covering promotions. Test grades are a significant factor in determining promotion. Mass.Gen.Laws ch. 31, § 3(e) provides that the Civil Service Commission shall include in their rules provisions for "(p)romotional appointments, on the basis of merit determined by examination, and seniority of service." Under the civil service system, a promotion eligibility list of those who score highest on the examination for a particular position is drawn up and the administrator certifies three names to the appointing authority, one of which is selected for the promotion. Mass.Gen.Laws ch. 31, § 27. It may be, although we do not decide the matter, that this creates a property interest within the rule of Board of Regents v. Roth, 408 U.S. 564, 571-72, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

We have made clear in Roth, supra, at 571-572, 92 S.Ct. 2709, that "property" interests subject to procedural due process protection are not limited by a few rigid, technical forms. Rather, "property" denotes a broad range of interests that are secured by "existing rules or understandings." Id. at 577, 92 S.Ct. 2709. A person's interest in a benefit is a "property" interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing. Ibid.

Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972).

But a constitutionally protected property interest does not automatically trigger a due process hearing. Three factors are to be considered.

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures...