Pollard v. Panora
| Decision Date | 25 March 1976 |
| Docket Number | Civ. A. No. 75-2647-T. |
| Citation | 411 F. Supp. 580 |
| Parties | Yvonne POLLARD et al. v. Robert A. PANORA et al. |
| Court | U.S. District Court — District of Massachusetts |
Robert W. Hagopian, c/o Orion Research Inc., Cambridge, Mass., for plaintiff.
Michael Eby, Asst. Atty. Gen., Boston, Mass., for defendants.
Before McENTEE, Circuit Judge, and FREEDMAN and TAURO, District Judges.
This class action1 was brought under 42 U.S.C. § 1983 seeking declaratory and injunctive relief2 against the enforcement of Mass.Gen.L. c. 90C, § 43 which requires the defendant Registrar to suspend automatically the licenses of persons failing without good cause to appear before a court to answer charges for motor vehicle violations. Plaintiffs contend that the challenged statute abrogates due process in that it requires license suspension without prior opportunity to demonstrate the existence of good cause for failure to appear.
Pursuant to plaintiffs' request, a three-judge court has been convened, 28 U.S.C. § 2284. An agreed statement of facts has been filed and, following hearing, the case was submitted on the merits.
We agree with plaintiffs' position and, for reasons elaborated herein, grant plaintiffs' request for permanent injunction.
On January 2, 1975, Pollard, a citizen of Massachusetts, was cited by a Boston police officer for "speeding", a motor vehicle violation. The officer swore out a complaint on January 4, 1975. Pollard did not make a written request for a hearing on this violation prior to the issuance of a summons as permitted by Mass.Gen.L. c. 90C, § 1.4 On February 17, 1975, a summons was issued to Pollard from the Municipal Court of Dorchester with a return date of March 8, 1975. The summons was deposited, properly stamped, into a mail box. Plaintiff did not appear in court on the return date of March 8, 1975. On March 13, 1975 defendant McKenney, in his capacity as clerk of the Municipal Court of Dorchester, notified defendant Panora, the Registrar of Motor Vehicles for the Commonwealth, that the plaintiff had defaulted on the summons issued by the court. On June 25, 1975, Pollard received a notice of suspension of her license from defendant Panora. The notice of the suspension, effective June 27, 1975, instructed plaintiff to surrender her license at once. The reason given for suspension per Mass.Gen.L. c. 90C, § 4 was default of a court summons on March 8, 1975 at the Municipal Court of Dorchester.
Pollard never returned her license to the Registry of Motor Vehicles. On June 27, however, defendant Panora officially suspended Pollard's license to operate a motor vehicle. On the same day the attorney for the plaintiff delivered a letter to defendant Panora or one of his assistants, which attempted, unsuccessfully, to forestall the suspension by explaining that plaintiff had never received notice of the court hearing, thus attempting to establish good cause for her failure to appear. On July 9, 1975, a single judge issued a temporary restraining order enjoining the Registrar from suspending plaintiff's motor vehicle operator's license. But for this order, which is still in effect, plaintiff's license would now be suspended.
On April 4, 1975 plaintiff Mickevich was cited for a motor vehicle violation (driving in the wrong direction on a one-way street) by an officer of the Boston Police Department. Mickevich did not make a written request for a hearing prior to the issuance of a summons pursuant to Mass.Gen.L. c. 90C, § 1. On April 14, 1975, a summons was issued to Mickevich from the Boston Municipal Court with a return date of May 29, 1975. This summons was deposited in a mail box on April 15, 1975. Mickevich received this summons, but did not appear in court on the return date. Mickevich alleges that he did not appear because he was sick. He further alleges that he reported the fact of his sickness to the court by phone. On May 29, 1975, defendant Craven, clerk of the Boston Municipal Court for criminal business, informed the defendant Panora, Registrar of Motor Vehicles, that Mickevich had defaulted on the summons issued by the Boston Municipal Court. On or about August 20, 1975, Mickevich received from Panora a notice of suspension of license effective August 26, with an instruction to turn in his license. The reason given for the suspension was default of a court summons. On August 21, Mickevich's attorney, in an unsuccessful attempt to forestall suspension, delivered a letter to Panora, or one of his assistants, explaining that Mickevich's failure to appear was due to illness. On August 26, 1975 defendant Mickevich's operator's license was revoked.
On September 17, 1975, a single judge issued a temporary restraining order enjoining the suspension, which order remains in effect to this day.
Neither Pollard nor Mickevich appealed the license suspensions to the board of appeal on motor vehicle liability policies and bonds as set down in Mass. Gen.L. c. 90, § 28.
The Commonwealth of Massachusetts processes charges of motor vehicle violation in several stages.
First, the police officer gives the putative offender a citation. Mass.Gen.L. c. 90C § 2. This informs the driver of whether the officer will apply for a court complaint. The citation also informs the driver that, upon written request, he may have a court hearing before a summons issues.
Second, the court issues the complaint, and notice to appear is given to the driver via a summons, normally mailed to the driver's usual address at least two weeks before the return date.
Third, if the driver wishes to change the return date stated on the summons he may do so by appearing in person or through his attorney in the office of the clerk of the appropriate court. If he does not request a change in the return date and does not appear for his hearing, a default is entered on the record and an attested copy of the court abstract is immediately sent to the Registrar, pursuant to Mass.Gen.L. c. 90, § 27.
Fourth, upon receipt of the default, the Registrar automatically and immediately suspends the driver's operating license.
Fifth, the driver who has his license suspended may appeal the suspension to the board of appeal on motor vehicle liability policies and bonds pursuant to Mass.Gen.L. c. 90, § 28. On appeal, however, the driver may only contest whether or not there was a default, and not whether the default was justified by some good cause. This appeal is subject to judicial review.
A driver may remove his default by (a) appearing at the appropriate court and paying his fine; (b) appearing at the appropriate court and petitioning for the removal of the default, which the judge after a hearing may order; or (c) appearing at the appropriate court, receiving a new trial date, and appearing at the new trial date. In the latter instance, the default is removed by order of the court after disposition at the second trial date.
Sixth, after the removal of the default by the court, the abstract of the court order must be transmitted to the Registry of Motor Vehicles. This can be accomplished in a matter of hours, either by personally handing or mailing the abstract to the driver himself who then takes it to the Registry in order to receive a valid driver's license. Alternatively, the Clerk of the Court may mail the abstract of the court order to the Registry and the Registry will mail the driver a new license or validation of his license. This method takes at least several days.
Neither of the plaintiffs in the present case used any of the procedures outlined above to regain their licenses.
The parties agree that the Commonwealth may not suspend a license without affording the licensee the due process required by the Fourteenth Amendment. Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Raper v. Lucey, 488 F.2d 748 (1st Cir. 1973). See also Cicchetti v. Lucey, 377 F.Supp. 215 (D.Mass.), rev'd on grounds of mootness, 514 F.2d 362 (1st Cir. 1975). They divide, however, on the question of what process is "due." Defendants insist that the interests protected here do not require pre-termination hearings and, therefore, that the existing statutory scheme satisfies due process requirements.
Defendants point first to this court's decision in Almeida v. Lucey, 372 F.Supp. 109 (D.Mass.), aff'd, 419 U.S. 806, 95 S.Ct. 22, 42 L.Ed.2d 36 (1974) as support for their position that pre-suspension hearings are not required. Almeida involved a plaintiff who had been charged with driving while under the influence of alcohol. Under Massachusetts' two-tier system, plaintiff was required initially to try his case jury-waived in the district court. Mass. Gen.L. c. 218, § 26. If convicted, plaintiff had the right to a de novo jury trial in the Superior Court. Mass.Gen.L. c. 278, § 18. Conviction in the District Court, however, brought with it a one-year automatic suspension of the driver's license, which could not be stayed by an appeal for a trial de novo. Contending that Massachusetts' two-tier system of criminal justice compromised his right to a jury trial, plaintiff stood silent before the district court and, after presentation of evidence by the state, was found guilty. In his subsequent suit in this court plaintiff attacked the constitutionality of the two-tier system claiming that the charge involved required jury trial in the first instance. In addition, plaintiff alleged that taking his license after a non-jury trial, subject as it was to a trial de novo appeal, did not afford him due process.
The majority opinion in Almeida clearly articulated the issue and its holding:
The question before us is simply whether the due process clause of the Fourteenth Amendment permits a state to revoke a driver's license after the driver — in a proceeding such as that furnished in the District Court of Western Norfolk — was found to have been driving...
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