State Board of Retirement v. Bulger

• Decision Date: 06 March 2006
• Citation: 843 N.E.2d 603,446 Mass. 169
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: STATE BOARD OF RETIREMENT v. John P. BULGER & others.<SMALL><SUP>1</SUP></SMALL>

Page 603

843 N.E.2d 603

446 Mass. 169

STATE BOARD OF RETIREMENT v. John P. BULGER & others.¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued December 9, 2005.

Decided March 6, 2006.

Grace H. Lee, Special Assistant Attorney General (Nicola Favovito & Rehana Thomas with her) for the plaintiff.

Paul T. Hynes, Boston (Catherine A. Highet with him) for John P. Bulger.

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

SPINA, J.

At issue in this case is whether, pursuant to G.L. c. 32, § 15(4), John P. Bulger's convictions of two counts of perjury and two counts of obstruction of justice in Federal District Court involved "violation[s] of the laws applicable to his office or position" as clerk-magistrate of the Boston Juvenile Court such that he forfeited his entitlement to a retirement allowance as a member of the State employees' retirement system. For the reasons that follow, we conclude that Bulger did violate the laws applicable to his office and that, consequently, forfeiture of his pension was statutorily required.

Bulger began his employment with the Commonwealth in 1964, when he was hired by the Metropolitan District Commission. In June, 1982, Bulger was appointed to serve as clerk-magistrate of the Boston Juvenile Court.² When he was sworn into office, Bulger pledged to "bear true faith and allegiance to the Commonwealth of Massachusetts" and to "support the constitution thereof." Part II, c. 6, art. 1, of the Constitution of the Commonwealth, as amended by art. 6 of the Amendments. He further solemnly swore and affirmed that he would "faithfully and impartially discharge and perform all the duties incumbent upon [him] as [the Clerk-Magistrate of the Boston Juvenile Court]: according to the best of [his] abilities and understanding, agreeably, to the rules and regulations of the constitution, and the laws of [the] Commonwealth." Id. Last, Bulger solemnly swore that he would "support the Constitution of the United States." See art. VI, third par., of the United States Constitution. This appointment lasted for nearly nineteen years.

Effective April 27, 2001, Bulger was granted a superannuation retirement from his position as clerk-magistrate. See G.L. c. 32, § 5. He was credited with thirty-two years and nine months of service with the State, and the Commonwealth began to pay Bulger a monthly pension of $5,326.16.³ Continued payment of Bulger's retirement allowance during his lifetime was subject to, among other things, the provisions of G.L. c. 32, § 15, which pertain to dereliction of duty by a member of the contributory retirement system for public employees (member). See G.L. c. 32, § 12(2). General Laws c. 32, § 15(4), in particular, provides, in relevant part, as follows:

"In no event shall any member after final conviction of a criminal offense involving violation of the laws applicable to his office or position, be entitled to receive a retirement allowance under the provisions of [§§ 1-28], inclusive, nor shall any beneficiary be entitled to receive any benefits under such provisions on account of such member" (emphasis added).

On November 8, 2001, Bulger was indicted in the United States District Court for the District of Massachusetts on two counts of perjury, in violation of 18 U.S.C. § 1623 (2000), and two counts of obstruction of justice, in violation of 18 U.S.C. § 1503 (2000). A grand jury had been conducting an investigation into alleged money laundering, racketeering, and other criminal offenses committed by, among others, Bulger's brother, James Bulger. It was material to this investigation that the grand jury determine "the nature, location, source, form, and ownership of any properties, accounts, safe deposit boxes, cash, and other assets possessed, controlled, transferred and transacted" by James Bulger. The indictment alleged that, on November 26, 1996, Bulger falsely testified, under oath, that he had no knowledge of any safe deposit box belonging to or controlled by James Bulger. According to the indictment, the purpose and effect of such testimony was to obstruct and impede the grand jury investigation.

A grand jury also had been conducting an investigation into persons involved in the commission of criminal offenses related to harboring and concealing James Bulger, who had been a fugitive from Federal criminal charges in Massachusetts since January, 1995. The November 8, 2001, indictment alleged that, on January 22, 1998, Bulger falsely testified, under oath, that, since January, 1995, he had received no direct or indirect communications from James Bulger, and that he was unaware of others who had received such communications. According to the indictment, the purpose and effect of this testimony was, once again, to obstruct and impede the grand jury investigation.

On April 10, 2003, Bulger pleaded guilty to the two counts of perjury and two counts of obstruction of justice set forth in the November 8, 2001, indictment. He was sentenced to serve a prison term of six months and three years of supervised release (with the first six months of the latter spent in home confinement), and to pay a fine of $3,000 and a mandatory assessment of $400.

The State Board of Retirement (board) notified Bulger that it was commencing a proceeding to determine whether it should take any action in connection with his retirement allowance. Additionally, the board informed Bulger that it intended to withhold the distribution of further pension payments to Bulger until final disposition of the matter. In response to Bulger's request for immediate resumption of his pension payments, the board voted at its August 28, 2003, meeting to deny his request. Bulger filed a petition in the South Boston Division of the Boston Municipal Court, see G.L. c. 218, § 1, seeking judicial review of the board's determination pursuant to G.L. c. 32, § 16(3) (a).

On September 22, 2003, following a hearing at which Bulger was represented by counsel, a hearing officer recommended that, in light of Bulger's convictions, the board rescind his retirement allowance and commence collection efforts to recover the $69,874.28 previously paid by the board to Bulger as the part of his retirement allowance that exceeded the deductions he had made to the retirement system. The board adopted the hearing officer's recommendations at its meeting on September 25, 2003. Bulger then filed another petition in the Boston Municipal Court seeking judicial review of the board's final determination. In accordance with G.L. c. 30A, § 14, the board filed a motion for summary judgment, limited to the board's administrative action against Bulger pursuant to G.L. c. 32, § 15(4).

On September 29, 2004, a judge in the Boston Municipal Court denied the board's motion for summary judgment, reversed the board's determination permanently to rescind Bulger's retirement allowance, and ordered the board to reinstate Bulger's pension, retroactive to April 11, 2003. The judge concluded that while Bulger's convictions of perjury and obstruction of justice were serious, they did not constitute "violation[s] of the laws applicable to his office or position," within the purview of G.L. c. 32, § 15(4), where "they were unrelated to Bulger's position as a Clerk Magistrate and where the facts and circumstances that gave rise to the convictions did not involve the administration of his duties and responsibilities as an appointed government official." The board filed a complaint seeking review in the nature of certiorari, pursuant to G.L. c. 249, § 4, in the Supreme Judicial Court for Suffolk County, asserting that the judge had misinterpreted G.L. c. 32, § 15(4), and that Bulger had violated the laws applicable to his position as clerk-magistrate. A single justice reserved and reported the matter to the full court.⁴

General Laws c. 249, § 4, provides for limited judicial review in the nature of certiorari to correct errors of law in administrative proceedings where judicial review is otherwise unavailable. See Sheriff of Plymouth County v. Plymouth County Personnel Bd., 440 Mass. 708, 710, 802 N.E.2d 71 (2004); Carney v. Springfield, 403 Mass. 604, 605, 532 N.E.2d 631 (1988). Certiorari allows a court to "correct only a substantial error of law, evidenced by the record, which adversely affects a material right of the plaintiff. . . . In its review the court may rectify only those errors of law which have resulted in manifest injustice to the plaintiff or which have adversely affected the real interests of the general public" (internal quotations and citations omitted). Massachusetts Bay Transp. Auth. v. Auditor of the Commonwealth, 430 Mass. 783, 790, 724 N.E.2d 288 (2000), quoting Carney v. Springfield, supra.

The thrust of the board's argument is that Bulger must forfeit his pension, pursuant to G.L. c. 32, § 15(4), because his convictions of perjury and obstruction of justice constituted "violation[s] of the laws applicable to his office," namely the Code of Professional Responsibility for Clerks of the Courts (the code), S.J.C. Rule 3:12, as amended, 427 Mass. 1322 (1998). The board points out that the position of clerk-magistrate is one of public trust and that Bulger, when he was appointed to that position, took an oath of office to uphold the Federal and State Constitutions and the laws of this Commonwealth. The board argues that the crimes committed by Bulger did not constitute mere personal transgressions wholly unrelated to the office of clerk-magistrate but, rather, were crimes that undermined the very essence of a clerk-magistrate's responsibility to facilitate the administration of justice. Because, in the board's opinion, there was a direct link between Bulger's convictions and the laws applicable to his office, Bulger forfeited his entitlement to his retirement allowance under G.L. c. 32, § 15(4). We agree.

Our analysis of G.L. c. 32, § 15(4), is guided by the familiar principle that "a statute must be interpreted...