Town of Milton v. Civil Service Commission

Decision Date05 June 1974
Citation365 Mass. 368,312 N.E.2d 188
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Lawrence T. Bench, Asst. Atty. Gen. (Walter H. Mayo, III, Asst. Atty. Gen., with him), for Civil Service Commission and another.

Robert D. O'Leary, Town Counsel, Boston, for the Town of Milton (Lawrence J. Markell, Asst. Town Counsel, Marblehead, for the Town of Marblehead, with him).


REARDON, Justice.

The plaintiffs, twenty-seven cities and towns, brought this bill in equity seeking declaratory and injunctive relief against the Civil Service Commission and the director of civil service of the Commonwealth (director). The bill sought to compel the defendants to comply with certain provisions of St.1972, c. 226 (c. 226), amending G.L. c. 31, § 48A. After a trial in the Superior Court the judge entered a final decree declaring c. 226 constitutional in its entirety and ordering compliance therewith. The defendants appeal from this decree. The judge made findings of fact, rulings and an order, and the evidence is reported.

The only issue presented in this appeal is the constitutionality of c. 226 which is reproduced in the margin. 1 The statute requires the director to give higher placement to certain persons in preparing lists of eligible applicants for appointment to the police forces of cities or towns. It calls for placing the name of any applicant who has resided in a city or town for one year prior to filing application for examination ahead of any other applicant on the list for that city or town if all other things are equal. Furthermore, on written request from the appointing authority for a city or town the director is required to advance the names of all applicants who have resided in a city or town for one year immediately prior to the date of the examination ahead of all other eligible applicants regardless of examination standing. Thus the ordinary ranking of applicants derived from their examination and then adjusted to reflect certain statutory preferences under G.L. c. 31, § 23, is altered. After the list is prepared in the ordinary way all such one-year residents are moved to the top. Therefore, the prospects of appointment for such residents are enhanced. Before the statute became effective on July 31, 1972, the appointing authority of each plaintiff had made written request for the alteration of the lists in the manner required by the statute. In June 12, 1973, the director informed the plaintiffs that, based on an opinion of the Attorney General to the effect that the preferential treatment of one-year residents was unconstitutional, he would not certify names from eligible lists prepared in accordance with c. 226. Thereupon the plaintiffs brought this suit.

The main constitutional infirmity alleged in c. 226 is in the different treatment it accords residents of a city or town of less than one-year's duration prior to application for examination contrasted to that afforded to those with a longer period of residence. The preference given the latter group which meets the durational residence requirement, it is argued, works a penalty on those otherwise equally qualified applicants who have exercised their constitutionally protected 'right to travel.' Therefore the defendants contend that, absent a compelling State justification, the statute violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. In making this argument the defendants rely on a number of cases decided in the United States Supreme Court in which durational residence requirements conditioning various rights, services, or benefits have been held unconstitutional, Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Memorial Hosp. v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306, (1974), a and upon our recent decision in FIORENTINO V. PROBATE COURT, --- MASS. ---, 310 N.E.2D 112, (1974)B, declaring invalid G.L. c. 208, §§ 4--5, which required a two-year residence for certain libellants in divorce actions. We hold that the potential burden on the exercise of the right to travel implicit in c. 226 is not one which properly calls for application of the strict equal protection scrutiny utilized in the cited cases and that the statute is constitutional.

It cannot be gainsaid that c. 226 accords more favorable treatment in the process of selecting police officers to established residents of a town than to newcomers. To some extent, therefore, the statute attaches a cost to the exercise of the right to travel. 2 A statutory scheme which penalizes that right may be justified only by the showing of a compelling governmental interest. Fiorentino v. Probate Court, supra, at ---, c310 N.E.2d 112. Although every durational residence requirement places some burden on the exercise of the 'right to travel,' not every such requirement imposes a penalty in the constitutional sense. Shapiro v. Thompson, supra, 394 U.S. at 638, n. 21, 89 S.Ct. 1322; Memorial Hosp. v. Maricopa County,supra, at 258 of 415 U.S., 94 S.Ct. 1076, d and at 284, 94 S.Ct. 1076, e (Rehnquist, J., dissenting). Unfortunately the Supreme Court has provided little guidance as to what is and what is not a penalty which will trigger such strict scrutiny review. See id. at 284, 94 S.Ct. 1076 f (Rehnquist, J. dissenting). In the Memorial Hosp. case, the court, drawing upon prior cases, noted that denial of welfare benefits which made possible the 'necessities of life' as in the Shapiro case, or the denial of the franchise, 'a fundamental political right,' as in the Dunn case, amounted to penalties. The denial of medical care assistance at issue in the Memorial Hosp. case itself was found to be quite similar to the denial of welfare benefits in the Shapiro case as affecting the 'necessities of life.' In Fiorentino v. Probate Court, supra, we stated that 'we believe, in light of Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), that denial of access to divorce courts imposed by the two-year residence requirement amounts to a penalty in the constitutional sense.' --- Mass. at ---, n. 10, g 310 N.E.2d at 117. On the other hand, it has been held that a one-year residence requirement for a lower tuition rate at a State university is permissible. Starns v. Malkerson, 401 U.S. 985, 91 S.Ct. 1231, 28 L.Ed.2d 527 (1971), affg. without opinion 326 F.Supp. 234 (D.Minn. 1970). Sturgis v. Washington, 414 U.S. 1057, 94 S.Ct. 563, 38 L.Ed.2d 464 (1973), affg. without opinion 368 F.Supp. 38 (W.D.Wash.1973). See Vlandis v. Kline, 412 U.S. 441, 452--453, n. 9, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973); Memorial Hosp. v. Maricopa County, supra, 415 U.S. at 260, n. 15, 94 S.Ct. 1076. h We conclude that the denial of equal treatment on civil service lists for possible appointments to local police forces does not rise to the level of a denial of necessities of life or a fundamental political right. It is not a penalty on the 'right to travel' and therefore need not be justified by a compelling State interest.

It is certainly true that the opportunity to earn a living is a fundamental right in our society. Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 60 L.Ed. 131 (1915). But the right to earn a living is not at stake here. It is an equally basic axiom that there is no right to public employment. See Brown v. Russell, 166 Mass. 14, 25, 43 N.E. 1005 (1896). Many years have passed since the decision of this court in McAuliffe v. Mayor and Bd. of Aldermen of New Bedford, 155 Mass. 216, 29 N.E. 517 (1892), but we believe Mr. Justice Holmes's observation at p. 220 of that opinion is still basically true: 'The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.' See Bell v. District Court of Holyoke, 314 Mass. 622, 51 N.E.2d 328 (1943) (right to employment as a fire fighter); Faxon v. School Comm. of Boston, 331 Mass. 531, 120 N.E.2d 772 (1954) (right to employment as a public school teacher). It is true of course that the State is not as free as a private employer in its hiring practices. It may not discharge an employee for the sole reason that he has chosen to exercise a constitutional right unless the action also demonstrates an independent job-related reason for dismissal. Compare Slochower v. Board of Higher Educ. of New York City, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956), with Lerner v. Casey, 357 U.S. 468, 78 S.Ct. 1311, 2 L.Ed.2d 1423 (1958). See Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968); Uniformed Sanitation Men Assn., Inc. v. Commissioner of Sanitation of the City of New York, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968). In this Commonwealth it has been held that the refusal to hire or the preferential hiring of some individual class of people for public employment must be related to some reasonable State objective. Brown v. Russell, 166 Mass. 14, 43 N.E. 1005 (1896). Opinion of the Justices, 303 Mass. 631, 22 N.E.2d 49 (1939). Nevertheless a government may properly discharge (and a fortiori refuse to hire) an individual for actions which bear a reasonable relation to the job even if those actions also involve the exercise of a constitutional right. Silverio v. Municipal Court of the City of Boston, 355 Mass. 623, 629, 247 N.E.2d 379 (1969), cert. den.396 U.S. 878, 90 S.Ct. 151, 24 L.Ed.2d 135 (1969). Uniformed Sanitation Men Assn., Inc. v. Commission of Sanitation of the City of New York, 426 F.2d 619, 624--625 (2d Cir. 1970), opinion after remand by 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968). See United States Civil Serv. Commn. v. National Assn. of Letter Carriers, AFLCIO, 413 U.S. 548, 564, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973). In all of these cases the...

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