Levy v. The Acting Governor

• Decision Date: 05 December 2001
• Parties: JORDAN LEVY & another v. THE ACTING GOVERNOR & another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

435 Mass. 697

761 NE 2d 494

JORDAN LEVY & another¹ v. THE ACTING GOVERNOR & another.²

Supreme Judicial Court of Massachusetts, Suffolk.

December 5, 2001.

January 25, 2002.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

Paul W. Johnson for Jordan Levy.

Richard J. Hayes for Christy Peter Mihos.

Thomas A. Barnico, Assistant Attorney General (Richard S. Weitzel, Assistant Attorney General, with him) for the Acting Governor.

GREANEY, J.

The plaintiffs, Jordan Levy and Christy Peter Mihos, filed a verified complaint in the Supreme Judicial Court for Suffolk County pursuant to G. L. c. 214, § 1, seeking declaratory and injunctive relief against the defendants, the Acting Governor (Governor) and the Secretary of the Commonwealth. The plaintiffs challenge the Governor's efforts to remove them from their positions as members of the Massachusetts Turnpike Authority (Turnpike Authority).³ The removal proceedings were begun by letters of the Governor dated November 16, 2001, informing each petitioner that, "I am removing you for cause from your position as member of the Massachusetts Turnpike Authority pursuant to M.G.L. c. 30, § 9."⁴ The letters went on to state:

"You are being removed from your position because you have (1) violated your oath of office by failing to administer the duties of your office faithfully and impartially, (2) failed to provide constructive and effective leadership for the Authority, improperly interfering with management of the Authority and disrupting its operation, (3) acted in a fiscally irresponsible manner, engaging in actions and decisions that are contrary to the financial interests of the Authority and the Commonwealth and that violate the trust and undermine the confidence of the public finance market, the rating agencies, the Federal Highway Administration and the Department of Transportation Inspector General in the management of the Authority.

"If you would like to be heard with respect to your removal, I will be available to meet with you and you will have the opportunity to be heard regarding such cause for removal on Tuesday, November 20, 2001 at 2:45 p.m.[⁵] in my office at the State House. If you do not appear at such time, you will be deemed to have waived your opportunity to be heard.

"Pending such hearing, I hereby suspend you from your position as member of the Massachusetts Turnpike Authority, effective immediately."

In connection with the verified complaint, the parties presented a statement of agreed facts and exhibits to a single justice, who then reserved and reported the case to the full court stating "the following questions for determination:

"(1)(a) Whether the Court has jurisdiction over the claims set forth in the amended verified complaint under G. L. c. 214, § 1, or otherwise?

"(1)(b) Whether the Acting Governor of the Commonwealth is immune from the claims asserted against her in the amended verified complaint?

"(2) Does the Governor of the Commonwealth have the power to remove a Member of the Massachusetts Turnpike Authority?

"(3)(a) Assuming that the answer to Question Two is in the affirmative, is a Member of the Massachusetts Turnpike Authority entitled to a hearing before the Governor of the Commonwealth prior to removal?

"(3)(b) Assuming that the answer to Question Three (a) is in the affirmative, is the hearing before the Governor of the Commonwealth required to be a public hearing?

"(4) Assuming that the answers to Questions Two and Three (a) or Three (b) are in the affirmative, what procedural rights does a Member of the Massachusetts Turnpike Authority have in connection with his preparation for and the conduct of the hearing on his removal?

"(5) Assuming that the answer to Question Two is in the affirmative, what legal principles and standards apply to the decision of the Governor of the Commonwealth whether to remove a Member of the Massachusetts Turnpike Authority?"

On December 10, 2001, after hearing argument on the case, we entered the following order:

"With respect to the questions reported by the single justice in his Reservation and Report dated November 23, 2001, the court responds as follows:

"(A) General Laws c. 30, § 9, confers on the Acting Governor the power to remove a member of the Massachusetts Turnpike Authority in accordance with the terms of that statute (Question 2);

"(B) it is not appropriate at this time to consider the issues raised in the remaining questions (Questions 3 through 5)."

This opinion is in explanation of the order.

1. Reported question 1 (a) and (b) raise substantial issues as to jurisdiction and the immunity of the Governor. The parties argue that G. L. c. 214, § 1, concerning the jurisdiction of this court over "all cases and matters of equity cognizable under the general principles of equity jurisprudence," confers jurisdiction. They disagree, not as to the overarching issue raised by question 2, but as to whether the court should refrain from exercising its authority on the ground that the Governor is entitled to immunity from rulings on the reported questions. See Milton v. Commonwealth, 416 Mass. 471, 476 n.6 (1993).

The plaintiffs claim that the court should not grant the Governor immunity from any of their claims. The Attorney General does "not assert the immunity of the Governor" from a ruling on questions 2 and 5 because he asserts, relying on Attorney Gen. v. Laffey, 388 Mass. 743 (1983), that those questions "present the same question that could be the subject of an action in the nature of quo warranto under G. L. c. 249, § 9."⁶ So, the Attorney General concludes, we should "deem the underlying nature of the controversy to be over the right of the [plaintiffs] to hold office and ... not one that implicates the constitutional immunity of the Governor from suit."

In Attorney Gen. v. Laffey, supra at 745 & n.5, the court avoided the question whether the plaintiffs, who had been removed by the Governor from their offices as members of the Massachusetts Port Authority, could maintain actions under G. L. c. 214, § 1, seeking declaratory and injunctive relief against the Governor and the Secretary of the Commonwealth. We did so because the Attorney General had filed an independent action by a complaint in the nature of quo warranto under G. L. c. 249, § 9, seeking a declaration as to the plaintiffs' right to claim office as members of the Port Authority. Id. In this case the Attorney General has not filed an independent action seeking relief under G. L. c. 249, § 9 (perhaps because the plaintiffs have not yet been removed from their positions). However, because question 2 presents a matter of public interest that has been fully briefed, and as to which uncertainty and confusion exists, we shall express our opinion on that question.⁷ See Wellesley College v. Attorney Gen., 313 Mass. 722, 731 (1943). See also O'Brien's Case, 424 Mass. 16, 18 (1996); Barry v. Commonwealth, 390 Mass. 285, 288 n.4 (1983); Trustees of the Smith Charities v. Northampton, 10 Allen 498, 503 (1865).

As to the remaining questions, the Attorney General argues that the matters in questions 3 and 4, and the issues implicit therein, should not be resolved by us because any decision by this court might involve unwarranted judicial interference with the internal functioning of a separate branch of government, see LIMITS v. President of the Senate, 414 Mass. 31, 35 (1992); Pineo v. Executive Council, 412 Mass. 31, 36-37 (1992); and would violate the general rule of gubernatorial immunity stated in Rice v. The Governor, 207 Mass. 577, 579 (1911), namely that "[G]overnors of States are not amenable to the courts for their conduct in the performance of any part of their official duties." We need not resolve questions 3 and 4, and the issues implicit therein, nor need we resolve question 5, because, "[i]n the expression of any opinion on [these issues] now, we cannot undertake definitively to adjudicate upon [them], so as to exclude [their possible] reconsideration hereafter." Trustees of the Smith Charities v. Northampton, supra. Put differently, the matters raised in these questions are premature for full court consideration.

2. The Turnpike Authority was established in 1952 by emergency legislation, St. 1952, c. 354 (enabling act).⁸ The enabling act does not contain an express provision authorizing the removal of the Turnpike Authority's members. The plaintiffs argue that the absence of such a removal provision, viewed in conjunction with the enabling act's legislative history, demonstrates that "the Legislature explicitly considered the extent of the independence that it should confer [to the Turnpike Authority] and determined to preclude the Governor from removing [its] [m]embers." In support of this position, the plaintiffs point to the following facts:

(1) although the enabling act was modeled after legislation creating the Mystic River Bridge Authority, which contained a removal provision, see St. 1946, c. 562, § 3 ("Each appointed member of the [Mystic River Bridge] authority may be removed by the governor, with the advice and consent of the council, for misfeasance, malfeasance or wilful neglect of duty, but only after reasonable notice and a public hearing, unless the same are in writing expressly waived"), the Legislature did not include a similar removal provision in the enabling act;

(2) before enacting the enabling act, the Legislature considered other bills (each proposing to create a new entity to construct a major new highway), two of which contained express removal provisions. These other pieces of legislation were 1952 House Doc. No. 874 (proposing in § 1 to create the "Boston-Springfield Highway Authority who shall be appointed in the manner provided by [St. 1947, c. 544, § 2]," the Metropolitan Transit Authority's enabling act, which provided for five public trustees to be appointed by the Governor "with the advice and consent of the council," and who "may be removed for

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