Police Com'r of Boston v. Municipal Court of West Roxbury Dist.

• Decision Date: 14 August 1975
• Citation: 332 N.E.2d 901,368 Mass. 501
• Parties: POLICE COMMISSIONER OF BOSTON v. . Supreme Judicial Court of Massachusetts, Suffolk
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 901

332 N.E.2d 901

368 Mass. 501

POLICE COMMISSIONER OF BOSTON

v. MUNICIPAL COURT OF the WEST ROXBURY DISTRICT.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 10, 1975.

Decided Aug. 14, 1975.

Lawrence J. Ball, Special Asst. Corp. Council, Boston, for the Police Commissioner of Boston.

Matthew T. Connolly, Boston, for Alfred R. Ciovacco (Maurice F. Ford, Special Asst. Atty. Gen., for the Justices of the Municipal Court of the West Roxbury District, with him).

Before TAURO, C.J., and BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.

HENNESSEY, Justice.

This petition for a writ of certiorari, filed in the county court, sought to quash an order of a judge of the Municipal Court of the West Roxbury District issued following review of an action of the Civil Service Commission (commission). ¹ The commission, after hearing, had affirmed the action of the appointing authority, the police commissioner of the city of Boston (police commissioner) in discharging Alfred Ciovacco, a police officer. The Municipal Court judge ordered that Ciovacco be reinstated with back pay on the ground that the commission 'having adjudicated this matter through the use of a Hearing Officer who was not disinterested, the petitioner's right to a fair hearing has been irreparably damaged.'

A single justice of this court reserved and reported the case, without decision, for the determination of the full court. We conclude that the decision of the Municipal Court judge is to be set aside, and the case is to be remanded to the commission for a new hearing.

We summarize the facts as contained in an agreed statement submitted by the parties. The police commissioner is the appointing authority of partolmen in the Boston police department. On March 15, 1972, Ciovacco held the permanent civil service position of patrolman in the Boston police department. On that date, pursuant to the applicable statutes, he was granted a hearing before the police commissioner relative to charges consisting of three specifications that Ciovacco on September 8, 1971, while off duty and not in uniform, had committed assault and battery on one Patricia Moran and on two Metropolitan District Commission (M.D.C.) police officers.

At the hearing before the police commissioner, the two M.D.C. officers testified that they had observed Ciovacco in a parked automobile repeatedly punching Miss Moran; that Ciovacco refused to obey their commands to cease striking the woman; and that Ciovacco punched the officers when they sought to restrain him physically. Neither Ciovacco nor Miss Moran testified.

By letter dated March 20, 1972, the police commissioner informed Ciovacco of his decision to discharge Ciovacco from his position as a patrolman. Ciovacco requested that the commission grant him a further hearing. On April 4, 1972, a hearing was held before Mr. Albert Mezoff, a hearing officer who was designated by the commission as a 'distinterested person' pursuant to G.L. c. 31, § 43(b).

Prior to entering the hearing room, counsel for Ciovacco did not know that Mr. Mezoff had been designated to conduct the hearing requested by Ciovacco. Before the taking of evidence began, counsel for Ciovacco objected to Mr. Mezoff's being assigned by the commission to hear the case. Counsel for Ciovacco stated that his objection was 'not on personal grounds whatever,' but rather was that in the Middlesex Probate Court counsel for Ciovacco had represented the former Mrs. Mezoff in a divorce libel against Mr. Mezoff, and that at stages in that hearing there were acrimonious remarks made by Mr. Mezoff. For the same reason, counsel for the appointing authority also objected to Mr. Mezoff's sitting and requested that Mr. Mezoff disqualify himself. Mr. Mezoff refused to disqualify himself and ordered the parties to proceed with the hearing. At that point Ciovacco's counsel recorded his objection to proceeding.

Mr. Mezoff heard substantially the same evidence as had been heard by the police commissioner relating to Ciovacco's punching Miss Moran and the two police officers. Mr. Mezoff recommended that the action of the appointing authority in discharging Ciovacco be upheld by the commission. Thereafter the commission in a letter dated June 9, 1972, informed Ciovacco that the case had been reviewed by the commission and that the commission had voted that the action of the police commissioner in discharging Ciovacco 'was justified and is affirmed.'

Ciovacco thereupon brought a petition for review of the commission's decision in the Municipal Court of the West Roxbury District. On October 3, 1973, a hearing was held before the presiding judge of that court. At that hearing, a return of the commission was submitted which included Mr. Mezoff's report, the transcript of the hearing, and a statement by counsel for Ciovacco, with the assent of counsel for the commission, that in the suit in the Probate Court for Middlesex County counsel had represented the wife of Mr. Mezoff in a 'bitter and acrimonious' divorce.

The judge found, inter alia, that the hearing officer arbitrarily and capriciously refused to disqualify himself; that the hearing officer was not a disinterested person as required by G.L. c. 31, § 43(b), and therefore he should have disqualified himself and removed himself from the hearing of the case; that the commission had based its decision on an unlawful procedure and that, by adjudicating this matter through the use of a hearing officer who was not disinterested, the commission had irreparably damaged Ciovacco's right to a fair hearing. The judge ordered, as 'the only remedy for this damage,' that Ciovacco be reinstated with back pay.

Ciovacco, on or about February 11, 1974, filed a petition for a writ of mandamus seeking an order for reinstatement. This petition is pending in Superior Court. Thereafter, on February 22, 1974, this petition for a writ of certiorari was filed by the police commissioner in the county court.

1. Review of the Commission's decision took place in the Municipal Court of the West Roxbury District under G.L. c. 31, § 45, as appearing in St.1970, c. 711, as shown in pertinent part, in the margin. ²

The scope of review open to the judge was defined in Sullivan v. Municipal Court of Roxbury Dist., 322 Mass. 566, 572--573, 78 N.E.2d 618, 620 (1948), where we said: 'The sole under a statute of this type of a judicial review to determine whether the action of an administrative officer in discharging or removing an officer or employee in the classified service was 'justified' has been settled by a series of decisions. The difference between a review and 'a retrial of the case as if it were unqualifiedly appealed from one court to another' was pointed out in Mayor of Medford v. Judge of First District Court of Eastern Middlesex (1924), 249 Mass. 465, at pages 470--471, 144 N.E. 397, at page 398, and in Selectmen of Wakefield v. Judge of First District Court of Eastern Middlesex, 262 Mass. 477, 482, 160 N.E. 427 (1928). 'Review' indicates 'a reexamination of a proceeding, already concluded, for the purpose of preventing a result which appears not to be based upon the exercise of an unbiased and reasonable judgment. It does not import a reversal of the earlier decision honestly made upon evidence which appears to an unprejudiced mind sufficient to warrant the decision made although of a character respecting the weight of which two impartial minds might well reach different conclusions, and upon which the reviewing magistrate, if trying the whole issue afresh, might make a different finding.' Murray v. Justices of the Municipal Court of the City of Boston, 233 Mass. 186, 189, 123 N.E. 682, 683 (1919); Mayor of Somerville v. District Court of Someville, 317 Mass. 106, 109, 57 N.E.2d 1 (1944); Board of Public Works of Arlington v. Third District Court of Eastern Middlesex, 319 Mass. 638, 67 N.E.2d 232 (1946), and cases cited. 'Justified' in connection with 'review' means 'done upon adequate reasons sufficiently supported by credible evidence, when weighed by an unprejudiced mind guided by common sense and by correct rules of law.' Selectmen of Wakefield v. Judge of First District Court of Eastern Middlesex, 262 Mass. 472, 482, 160 N.E. 427, 430 (1928); Costa v. District Court of Eastern Essex, 305 Mass. 85, 25 N.E.2d 172 (1940).'

Despite substantial changes in G.L. c. 31, § 45, particularly as achieved by the 1970 amendment, this statement of the law has continued validity. See Commissioner of Civil Serv. v. Municipal Court of City of Boston, 359 Mass. 211, 214--215, 268 N.E.2d 346 (1971).

2. We examine first whether the judge had sufficient basis on which to conclude that Mr. Mezoff was not a 'disinterested person' as required by the statute. We conclude that he had.

The disinterested person's function is essentially judicial. He holds a hearing, takes evidence and makes findings of fact; thereafter the commission makes its decision based on the hearing officer's findings; it can affirm the action of the appointing authority, or reverse the action, or modify any penalty imposed. G.L. c. 31, § 43(b).

A judicial officer of this kind is governed, as are masters and auditors, by the same high standards as have been set for judges. See Beauregard v. Dailey, 294 Mass. 315, 324--325, 1 N.E.2d 481 (1936). These high standards in turn are reflective of the constitutional rights of litigants to a fair hearing, as established in art. 29 of the Declaration of Rights of the Constitution of this Commonwealth, viz.: '. . . It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit. . . .' Article 29 extends beyond judges 'to all persons authorized to decide the rights of litigants.' Beauregard v. Dailey, 294 Mass. at 324, 1 N.E.2d at 486 (1936). ³

Not every contention of bias or partiality is entitled to be honored by a judge, or a hearing officer. See, e.g., Thomajanian v....