Opposition — O'Brien v. Jordan

Suprcine Court, U.

FILED

APR 22 1977

MICHAEL JR, CLERK

|

Supreme Court of the United States.

Octoser Term, 1976.

No. 76-1292. 76°1062

WILLIAM L. O’BRIEN er at.,

PETITIONERS,

v.

POLICE COMMISSIONER OF THE CITY OF

BOSTON,

RESPONDENT.

ON A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIRST CIRCUIT

Brief for the Respondent in Opposition to Petition for

Writ of Certiorari.

LawRENCE J. Bat,

Specia, Assistant Corporation CovUNSEL,

Joun W. FIevpsTEeEL,

3 Center Plaza, Room 630,

Boston, Massachusetts 02108.

(617) 742-1183

ADDISON C. GETCHELL & SON, INC., THE LAWYERS’ PRINTER, BOSTON

Table of Contents.

Statement of the case

Argument

I. The questionnaire does not violate the plain-

tiffs’ constitutional rights because the ques-

tionnaire is specifically, directly and narrowly

related to the ability and fitness of the plain-

tiffs to perform their duties as police officers

II. The financial questionnaires do not violate

the plaintiffs’ right of privacy

III. The court does not have jurisdiction be-

cause the plaintiffs have an adequate adminis-

trative and judicial remedy afforded by the

Civil Service Laws

IV. The procedures used to suspend the plain-

tiffs did not violate the plaintiffs’ due process

rights

V. The complaint in the present case fails to

allege sufficient facts upon which a claim for

relief may be granted and is subject to dis-

missal under Fed. R. Civ. P., Rule 12(b) (6)

Conclusion ;

Appendix

Table of Authorities Cited.

CasEs.

Allee v. Medrano, 416 U.S. 802 (1974)

Allen v. Greensboro, North Carolina, 452 F. 2d 489

(4th Cir. 1971)

Avins v. Mangum, 450 F. 2d 932 (2d Cir. 1971)

Bergeron v. Superintendent, Walter E. Fernald State

School, 353 Mass. 331 (1967)

12

12

14

ii TABLE OF AUTHORITIES CITED

Board of Selectmen of Framingham v. Civil Service

Commission, Mass. Adv. Sh. (1974) 2389, 321 N.E.

2d 649

Bonner v. Circuit Court of St. Louis, Mo., 526 F. 2d

1331 (8th Cir. 1975) cert. denied 96 S. Ct. 1418

(1976)

Broderick v. Police Commissioner of Boston, Mass.

Adv. Sh. (1975) 1838, 330 N.E. 2d 199, cert. denied,

423 U.S. 1048 (1976)

Brouillette v. Worcester, Mass. Adv. Sh. (1974) 183,

306 N.E. 2d 252

Burks v. Perk, 470 F. 2d 163 (6th Cir. 1972), cert.

denied, 412 U.S. 905 (1973)

The Coach and Six Restaurants, Inc. v. Public Works

Commission, 363 Mass. 643, 296 N.E. 2d 501 (1973)

Conley v. Gibson, 355 U.S. 41 (1957)

County Commissioners of Middlesex County v. Sher-

iff of Middlesex County, 361 Mass. 89, 278 N.E. 2d

751 (1972)

Cullen v. Mayor of Newton, 308 Mass. 578 (1941)

Dwen v. Barry, 483 F. 2d 1126 (2d Cir. 1973) reversed

on other grounds sub nom. Kelley v. Johnson, 425

U.S. 238 (1976)

East Chop Tennis Club v. Massachusetts Commission

Against Discrimination, 364 Mass. 444 (1973) 1611,

305 N.E. 2d 507

Fahy v. Commissioner to Investigate Allegations of

Police Corruption, 319 N.Y.S. 2d 242 (1971), aff’d

with out opinion, 319 N.Y.S. 2d 807 (Appellate

Division) aff’d with out opinion, 322 N.Y.S. 2d 73

(Court of Appeals)

8-9

TABLE OF AUTHORITIES CITED iii

Fritz v. Gorton, 517 P. 2d 911 (Wash. S. Ct.), appeal

dismissed, 417 U.S. 902 (1974) 8

Fuentes v. Roher, 519 F. 2d 379 (2nd Cir. 1975) 10

Gardner v. Broderick, Police Commissioner of New

York, 392 U.S. 273 (1968) 3

Garrity v. New Jersey, 385 U.S. 493 (1967) 3

Gibson v. Berryhill, 411 U.S. 564 (1973) 9-10

Gillibeau v. Richmond, 417 F. 2d 426 (9th Cir. 1969) 15

Hahn v. Sargent, 388 F. Supp. 445 (D. Mass. 1975),

aff’d 523 F. 2d 461 (1st Cir. 1975), cert. denied, 96

S. Ct. 1495 (March 29, 1976) 16

Hortonville Joint School Dist. No. 1 v. Hortonville

Education Ass’n, — U.S. — 96 S. Ct. 2308 (1976) 13

Illinois State Employees Association v. Walker, 57

Ill. 2d 512, 315 N.E. 2d 9 (1974); cert. denied sub

nom. Troopers Lodge No. 41 v. Walker, 419 U.S.

1058 (1974) 6, 8

In re Emmons, 63 N.J. Super. 136 (Superior Ct. 1970) 6

Jackson v. Sargent, 394 F. Supp. 162 (D. Mass.

1975) 10-11

Kammerer v. Board of Fir and Police Commis-

sioners of Lombard, 44 Ill. 2d 500, 256 N.E. 2d

12 (1970) 6

Kelley v. Johnson, 425 U.S. 238 (1976) 6

Lyons v. Gilligan, 382 F. Supp. 198 (N.D. Ohio 1974) 14

Mastandrea v. Gurrentz International Corp., 65

F.R.D. 52 (D.C. Pa. 1974) 15, 16

Mellon National Bank & Trust Co. v. Nationwide

Mutual Insurance Co., 32 F.R.D. 365 (W.D. Pa.

1962) 16

Muller v. Conlisk, 429 F. 2d 901 (7th Cir. 1970) 7

iv TABLE OF AUTHORITIES CITED

Needleman v. Bohlen, 386 F. Supp. 741 (D. Mass.

1974) 11

Newport News Shipbuilding & Dry Dock Co. v.

Schauffler, 303 U.S. 54 (1938) 14

Paul v. Davis, 424 U.S. 693 (1976) 7

People v. O’Brien, 305 N.Y. 915 (1953) 6

People v. Workman, 308 N.Y. 668 (1954) 6

Police Commissioner of Boston v. Ciecolo, 356 Mass.

555 (1969) 9

Raper v. Lucey, 488 F., 2d 748 (1st Cir. 1973) 10, 11

Seattle Police Officers’ Guild v. Seattle, 494 P. 2d

485 (Wash. S. Ct. 1972) 6

Sillifant v. Sheriff, 6 N.Y. 2d 487 (1959) 4.5

Silverio v. Municipal Court of Boston, 355 Mass.

623 (1969) cert. denied 396 U.S. 878 (1969) 3

Soldevila v. Secretary of Agriculture of the United

States, 512 F. 2d 427 (1st Cir. 1975) 8

Stein v. Howlett, 52 Ill. 2d 570, 289 N.E, 2d 409

(1972) 6

Stevenson v. Board of Education, 426 F. 2d 1154

(5th Cir.) cert. denied 400 U.S. 957 (1970) 11

Stradley v. Anderson, 478 F, 2d 188 (8th Cir. 1973) 6-7

Uniformed Sanitation Men Assoc., Inc. v. Commis-

sioner of Sanitation of New York, 392 U.S. 280

(1968) , 3

Uniformed Sanitation Men Association, Inc. v. Com-

missioner of Sanitation of New York, 426 F. 2d

619 (2d Cir. 1970) cert. denied 406 U.S. 961 (1972) 3

Withrow v. Larkin, 421 U.S. 35 (1975) 13

Yarbrough v. Jacksonville, 363 F. Supp. 1176 (M.D.

Fla. 1973) affirmed 504 F. 2d 759 (Sth Cir. 1974) 7

TABLE OF AUTHORITIES CITED v

STaTuTEs.

42 U.S.C. § 1983 8, 10

G.L. ec. 30A, § 11(2) 12

G.L. e. 31 9, 11

§ 43 11, 12

§ 43(a) 9, 13

§ 43(b) 9, 11, 12

§ 46A 9

St. 1962, ¢. 322 12

MISCELLANEOUS.

5 C.F.R. §§ 735.401, 735.407 4

31 C.F.R. §§ 0735-70, 0735-76 4

Fed. R. Civ. P.

Rule 12(b) (6) 14, 15

Rule 23 15

Rule 23(a) (1-4) (b) 15

McCormack, Evidence, § 350, p. 843 12

Wright and Miller, Federal Practice and Procedure,

§ 1356 (1969) 14

a

Supreme Court of the United States.

Ocroser Term, 1976.

No. 76-1292.

WILLIAM L. O’BRIEN er at.,

PETITIONERS,

v.

POLICE COMMISSIONER OF THE CITY OF

BOSTON,

RESPONDENT.

ON A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FI®ST CIRCUIT

Brief for the Respondent in Opposition to

Petition for Writ of Certiorari.

Statement of the Case.

The plaintiffs in this action are three Boston Police

Officers who were allegedly suspended without pay for one

month for failure to obey an order that they complete and

return a financial questionnaire. A copy of the financial

questionnaire is included in the petition and marked ‘‘ Ap-

pendix C.’’ The plaintiffs seek to bring a class action on

behalf of all individuals similarly situated. The complaint

prays for a preliminary and permanent injunction against

any action requiring the plaintiffs to complete the question-

naire, a declaratory judgment and a judgment for alleged

damages in the sum of one million dollars. The plaintiffs’

request for a preliminary injunction was denied by Chief

Judge Caffrey.

The defendant moved to dismiss the complaint. That

motion was granted by the United States District Court for

the District of Massachusetts. The granting of that motion

was affirmed by the United States Court of Appeals for the

First Circuit.

This memorandum is in opposition to the plaintiffs’ Pe-

tition for a Writ of Certiorari to that Court of Appeals.

Argument.

I. Tae QuestionnareE pores Nor VIoLATE THE PLAINTIFFS’

ConsTITUTIONAL RIGHTS BECAUSE THE QUESTIONNAIRE IS

SpeciFicaLLy, DrrectLy anp NarrowLy RELATED TO THE

Apimity aNnD Firness oF THE PLAINTIFFS TO PERFORM

Tuer Duttes as Pouice OFFIcers.

The Massachusetts Supreme Judicial Court has spe-

cifically upheld the power of the Boston Police Commis-

sioner to order members of the department to complete and

return written reports. In Broderick v. Police Commis-

stoner of Boston, Mass. Adv. Sh. (1975) 1838, 330 N.E. 2d

199, cert. denied, 423 U.S. 1048 (1976), the court reviewed

the legality of an order that police officers answer questions

relating to off-duty conduct and held that such questions

did not violate the plaintiffs’ constitutional rights. That

power has also been upheld in many other decisions.

Both the Supreme Court of the United States and the

Supreme Judicial Court of the Commonwealth have held

that a police commissioner may, upon the threat of dis-

charge or suspension, require a police officer to provide

3

information concerning his alleged misconduct. In Silverio

v. Municipal Court of Boston, 355 Mass. 623, 628 (1969),

cert. denied 396 U.S. 878 (1969), the Supreme Judicial

Court said:

‘*The Supreme Court of the United States in Gardner

v. Broderick, 392 U.S. 273, 278, held that it was im-

proper to discharge a police officer for refusal to waive

immunity following his being told that he would be

discharged if he did not do so. The court also held,

however, that if a policeman ‘had refused to answer

questions specifically, directly, and narrowly relating

to the performance of his official duties, without being

required to waive his immunity with respect to the use

of his answers or the fruits thereof in a criminal prose-

cution ... the privilege against self-incrimination

would not have been a bar to his dismissal.’ ’’

The plaintiffs have not alleged in the complaint that the

defendant required them to waive their rights under the

Fifth Amendment. In fact, in this case, as in Broderick,

the plaintiffs were informed that their responses could not

be used in any criminal proceedings. See Garrity v. New

Jersey, 385 U.S. 493 (1967). In the absence of a require-

ment that there be such a waiver, it is clear that the sus-

pension of the plaintiffs for failure to answer a question-

naire does not violate plaintiffs’ Fifth Amendment rights.

Uniformed Sanitation Men Assoc., Inc. vy. Commissioner of

Sanitation of New York, 392 U.S. 280, 284-285 (1968),

Gardner v. Broderick, Police Commissioner of New York,

392 U.S. 273, 278 (1968), Uniformed Sanitation Men As-

sociation, Inc, v. Commissioner of Sanitation of New York,

426 F. 2d 619, 626-628 (2d Cir. 1970) cert. denied 406 U.S.

961 (1972).

The use of such a questionnaire is an accepted and well

established practice. Personnel in Federal Law Enforce-

4

ment Agencies are required by federal regulations to submit

financial questionnaires, 31 C.F.R. §§ 0735-70 and 0735-76,

and 5 C.F.R. §§ 735401 and 735407, copies of which are

attached hereto. The overwhelming majority of courts which

have considered a challenge to the use of such question-

naires have ruled that public employees may be required to

complete and return such questionnaires. For example, in

Sillifant v. Sheriff, 6 N.Y. 2d 487 (1959), the New York

Court of Appeals held that a New York City Building De-

partment Inspector was properly convicted of criminal con-

tempt for refusing to fill out a four-page financial ques-

tionnaire directed to him by a grand jury. ‘‘The questions

are simple ones asking for details of the income of relator

and members of his household, the names of banks in which

he and his family have accounts, the existence of safe de-

posit boxes, life insurance and other policies, stock broker-

age accounts and of his charge accounts, if any. The

questionnaire calls also for approximate figures of living

and personal expenses and for relator’s financial balance

sheet’’ (p. 489). The court stated that, ‘‘No one doubts that

this grand jury ... could compel this relator to an-

swer. . .’’ these questions.

Tn his concurring opinion Judge Burke stated the prin-

cipal more emphatically :

‘*There is no question that where there is evidence of

corruption that the people of the City of New York

are entitled to an accounting by their public servants

of the public employees’ financial assets for the graft

or corruption or misfeasance in office by their public

servants—* * * Obviously, evidence of possession of

financial assets or income in amounts or justified or

accountable for by salary and other legitimate origins

is a pertinent source of inquiry where the misconduct

of a public officer is the subject of probe. * * * The

5

best evidence of financial status would be a completed

financial questionnaire, prepared by the public officer’’

(pp. 490-491).

Judge Burke then added that if questions are too compli-

cated and involved, the employee may attack items on the

questionnaire as being oppressive.

A more recent case upholding the use of financial ques-

tionnaires is Fahy v. Commission to Investigate Allegations

of Police Corruption, 319 N.Y.S. 2d 242 (1971), aff’d with-

out opinion, 319 N.Y.S. 2d 807 (Appellate Division) and

aff’d without opinion 322 N.Y.S. 2d 73 (Court of Appeals).

In that action, sergeants in the New York City Police De-

partment sought an order quashing subpoenas requiring the

sergeants to produce certain financial information includ-

ing federal and state tax returns for 1967, 1968 and 1969

and all records of activity for the period from June 1,

1970 through November 5, 1970 including memoranda,

books, pads, notebooks and telephone pads. The court

quashed the subpoena insofar as the questionnaire included

oppressive items seeking the exact amounts expended for

the past three years by the employee, his wife, his depend-

ents and for all others in whose behalf expenditures were

made for such items as recreation, gas and oil, automobile

tires, gifts, hobbies, tobacco and laundry. However, as to

the production of tax returns, bank statements and records

of brokerage accounts, the court refused to quash the sub-

poena and held that the question bear a reasonable relation

to the purposes for which the Commission was created,

namely to investigate allegations of corruption of members

of the New York City Police Department.

In addition, several decisions of the Supreme Court of

Illinois have upheld the legality of an executive order and

a statute that require the filing of financial statements by

public employees detailing the finances of the employee and

his immediate family. Illinois State Employees Association

v. Walker, 315 N.E. 2d 9, 57 Ill. 2d 512 (1974) ; cert. denied

sub. nom. Troopers Lodge No. 41 v. Walker, 419 U.S. 1058,

43 U.S.L.W. 3329 (1974) ; Stein v. Howlett, 289 N.E. 2d 409,

52 Ill. 2d 570 (1972). In another similar case the Washing-

ton Supreme Court upheld a procedure for questioning

police officers and requiring police officers to submit to a poly-

graph examination. Seattle Police Officers’ Guild v. Seattle,

494 P. 2d 485 (Wash. S. Ct. 1972). See also Kammerer v.

Board of Fire and Police Commissioners of Lombard, 256

N.E. 2d 12, 44 Ill. 2d 500 (1970), In re Emmons, 63 N.J.

Super. 136 (Superior Ct. 1970). To the same effect are

People v. O’Brien, 305 N.Y. 915 (1953), and People v. Work-

man, 308 N.Y. 668 (1954), both affirming perjury convictions

of public employees who gave false answers to financial

questionnaires before a grand jury.

The specialized nature of law enforcement agencies per-

mits the use of financial questionnaires. Courts have recog-

nized the special nature of police work. For example, the

United States Supreme Court recently upheld hair regula-

tions as applied to police. Kelley v. Johnson, 425 U.S. 238

(1976). See also Board of Selectmen of Framingham v.

Cwil Service Commission, Mass. Adv. Sh. (1974) 2389, 321

N.E. 2d 649, 655-656.

Federal courts have also recognized the difference be-

tween police and other public employees. In Stradley v.

Anderson, 478 F. 2d 188, 190 (8th Cir. 1973), the court

stated:

‘*Traditionally, the policeman has been a highly

trained officer who is entrusted with a responsible and

oftentimes dangerous role as a public servant. His

work habits on active duty require disciplined conduct,

regimentation and frequent strict adherence to regula-

tion and authorized detail. His job is often a delicate

and difficult task to lawfully act against those who are

7

sometimes unwilling to recognize any rules or ethics. It

is essential that a policeman’s training be such that he

be taught to obey strict disciplinary procedure and

rules in order to lend practical assurance that he will

follow command and not abuse his awesome authority.

As part of this discipline the police department has de-

termined that an officer shall be neat in his appearance.

There can be little argument that this requirement con-

stitutes a legitimate departmental interest.’’

See also, Dwen v. Barry, 483 F. 2d 1126, 1129 (2d Cir.

1973) reversed on other grounds sub nom. Kelley v. John-

son, 425 U.S. 238 (1976); Yarbrough v. Jacksonville, 363

F. Supp. 1176, 1181-1182 (M.D. Fla. 1973) affirmed 504 F. 2d

759 (5th Cir. 1974); Muller vy. Conlisk, 429 F. 2d 901, 904

(7th Cir. 1970).

A review of these cases, as well as the fact that such finan-

cial questionnaires are in wide use by federal law enforce-

ment agencies, clearly indicates that the questionnaire is

narrowly, specifically and directly related to the duties of

the plaintiffs. Therefore, the use of these questionnaires

does not violate the plaintiff’s rights under the Fifth

Amendment.

II. Tae Financia, QuestTionnarrEs Do Nor VIOLATE THE

PuarntiFrs’ Ricut oF Privacy.

A recent decision of the United States Supreme Court

has held that the right of privacy is limited to ‘‘matters

relating to marriage, procreation, contraception, family re-

lationships, and child rearing and education.’’ Paul v.

Davis, 424 U.S. 693 (1976). In that case the court held that

disclosure of an alleged shoplifter’s arrest record did not

violate a right of privacy. In addition the Illinois and

Washington Supreme Courts have specifically held that a

financial disclosure procedure for public employees does

not violate a right of privacy. Illinois State Employees

Association v. Walker, 57 Til. 2d 512, 315 N.E. 2d 9, 14-17

(1974), Frite v. Gorton, 517 P. 2d 911 (Wash. 8S. Ct.), ap-

peal dismissed for want of substantial federal question,

417 U.S. 902 (1974).

The complaint in this case alleges no disclosure of mat-

ters relating to marriage or family. By its nature the ques-

tionnaire is ‘‘financial.’’ As such it does not intrude upon

any area which is protected by a constitutional right of

privacy.

Ill. Tae Court pors Nor Have JurispIcTION BECAUSE THE

Puarntirrs Have an ApEQUATE ADMINISTRATIVE AND

JupictiaL Remepy AFFORDED BY THE Civit Service Laws.

The suspension of the plaintiffs is appealable to the

Civil Service Commission and the state courts. Therefore,

this court may not issue an injunction because the plaintiffs

have a fair, adequate and unexhausted remedy. In Solde-

vila v. Secretary of Agriculture of the United States, 512

F. 2d 427, 430 (1st Cir. 1975), the court stated:

The strong policy against enjoining incomplete agency

actions, which is reinforced by the equity policy against

enforcing personal service contracts and the disruptive

effect of granting temporary relief in such cases, re-

quires an extraordinarily strong showing of irrepara-

ble harm to warrant a preliminary injunction.

Sampson v. Murray, 415 U.S. 61. . . (1974).

It is a settled rule of equity that a plaintiff who seeks

equitable relief must demonstrate that he lacks an adequate

remedy at law and that absent injunctive relief he will

suffer irreparable harm. Allee v. Medrano, 416 U.S. 802,

814 (1974). This rule applies in cases where relief is sought

under 42 U.S.C. § 1983. Bonner v. Circuit Court of City of

St. Louis, Mo., 526 F. 2d 1331, 1335-1336 (8th Cir. 1975),

cert. denied 96 S.Ct. 1418 (1976).

The plaintiff may not circumvent or supplement the

remedies afforded him by G.L. c. 31. Under G.L. c. 31, the

plaintiff is afforded three ways of appealing a decision to

impose discipline: (1) Request a hearing before the Civil

Service Commission pursuant to § 43(b); (2) File a com-

plaint with the Commission alleging procedural violations

pursuant to the second paragraph of § 46A; or (3) File a

complaint in the Supreme Judicial Court or the Superior

Court alleging procedural irregularities pursuant to the

first paragraph of § 46A. These are the only remedies

available to the plaintiff; See Police Commissioner of Bos-

ton v. Ciccolo, 356 Mass. 555 (1969). The Supreme Judicial

Court has repeatedly ruled that an employee who has been

disciplined is required to follow the statutory scheme and

may not file a complaint for an injunction, mandamus or

declaratory judgment. Brouillette v. Worcester, 364 Mass.

444, 447, 306 N.E. 2d 252, 253 (1974) ; Bergeron v. Superin-

tendent, Walter E. Fernald State School, 353 Mass. 331

(1967). This doctrine has been uniformly applied in analo-

gous situations in which a plaintiff has an administrative

remedy. See East Chop Tennis Club v. Massachusetts Com-

mission Against Discrimination, Mass. Adv. Sh. (1973)

1611, 305 N.E. 2d 507; The Coach and Sia Restaurants, Inc.

v. Public Works Commission, 363 Mass. 643, 296 N.E. 2d

501 (1973) ; County Commissioners of Middlesex County v.

Sheriff of Middlesex County, 361 Mass. 89, 278 N.E. 2d

751 (1972).

The Supreme Court in Gibson v. Berryhill, 411 U.S. 564,

575 n.14 (1973), recognized the need to deal with the ex-

haustion doctrine and stated that:

State administrative remedies have been deemed

inadequate by federal courts and hence not subject to

10

the exhaustion requirements, on a variety of grounds.

Most often this has been because of delay by the agency,

Smith v. IWinois Bell Tel. Co., 270 U.S. 587 (1926), or

because of some doubt as to whether the agency was

empowered to grant effective relief, Union Pac. R.

Co. v. Board of Comm’rs of Weld County, 247 U.S. 282

(1918) ; McNeese v. Board of Education, 373 U.S. 668

(1963). Id.

Other federal cases have held that a plaintiff in a 4 1983

action may not seek federal judicial relief until the availa-

ble and adequate state remedies have been exhausted.

Fuentes v. Roher, 519 F. 2d 379, 386 (2d Cir. 1975). In

Burks v. Perk, 470 F. 2d 163 (6th Cir. 1972), cert. denied

412 U.S. 905 (1973), the court held that a civil servant who

had an adequate judicial remedy under state law could not

seek federal relief.

The First Circuit has acknowledged that the exhaustion

doctrine continues to apply to § 1983 cases. In Raper v.

Lucey, 488 F. 2d 748, 751 n.3 (1st Cir. 1973), the court

articulated a ripeness test which recognizes the need for a

definitive administrative or institutional determination be-

fore a § 1983 action may arise. This test clearly recognizes

that all exhaustion requirements cannot be ignored in a

§ 1983 action. In Jackson v Sargent, 394 F. Supp. 162,

172-173 (D. Mass. 1975), the ccurt held that:

A § 1983 plaintiff must use any ‘automatic’ state

judicial remedy that would entirely avert the harm of

which he complains. Under some conditions, moreover,

an aggrieved party might be required to use speedy

and effective administrative procedures that might

avert the harm before it occurs.

Id. quoting Wishart v. McDonald, 500 F. 2d 1110, 1114

n.4 (1st Cir. 1974).

11

The ripeness test announced by the First Circuit in

Raper v. Lucey, supra, was applied by the court in Needle-

man v. Bohlen, 386 F. Supp. 741, 746 (D. Mass. 1974). The

court noted the need to defer to local institutional au-

thority to assure that the action complained of be final

within the institution in the sense that it is ripe for adjudi-

cation. See also Stevenson v. Board of Education, 426

F. 2d 1154, 1157 (5th Cir.), cert. denied 400 U.S. 957 (1970).

In Needleman no hearing was offered to the plaintiff, the

administrative action was definite, and the controversy

was, therefore, ripe for adjudication.

In the present case the plaintiffs have attempted to

‘‘short-circuit’’ the administrative framework provided for

their protection in G.L. c. 31. They are entitled to request

the de novo hearing before the Civil Service Commission

granted by G.L. c. 31, § 43(b). The administrative action

is not final or definite in the present case, for the findings

of the Police Commissioner at the department trial board

may be modified or rejected by the Civil Service Commis-

sion. The plaintiffs have chosen to interrupt the normal

administrative procedure and have proceeded directly to

the federal court. The concerns of comity and ripeness

militate against the abandonment of an incomplete ad-

ministrative process and the premature involvement of fed-

eral courts in state administrative procedure.

In this case the plaintiffs have a fair and adequate rem-

edy provided by the civil service laws of Massachusetts,

G.L. c. 31, §§ 43 et seq. Those remedies are established to

protect the statutorily created tenure of public employees.

The plaintiffs must allow this administrative framework to

articulate a definite result before resorting to the federal

courts.

12

IV. Tue Procepures Usep to Suspenp THE PLAINTIFFS DID

Nor Vio.aTe THE Piarntirrs’ Dus Process Ricxts.

The complaint alleges that the Police Commissioner vio-

lated the rights of the plaintiffs by holding a hearing at

which he presided and by not applying formal rules of

evidence. Such a procedure is, however, required under

the Civil Service Statutes of Massachusetts. General

Laws, c. 31, § 43, mandates that the first hearing as to

a suspension or discharge must be before the ‘‘appointing

authority.’’ The appointing authority is the person legally

empowered to hire and fire. The person who has such

power over the plaintiff patrolmen is the defendant Po-

lice Commissioner. See St. 1962, c. 322. The Civil Serv-

ice laws also provide for a ‘‘de novo” hearing on appeal

before the Civil Service Commission which has the author-

ity to order the reinstatement of the employee ‘without

loss of compensation.’’ G.L. c. 31, § 43(b). Such a re-

view procedure clearly complies with due process.

There is no requirement that formal rules of evidence

apply at the administrative civil service hearings. The

Administrative Procedures Act of Massachusetts recog-

nized that formal rules of evidence should not apply to

administrative agency hearings. That law, G.L. ec. 30A,

§ 11(2), provides that ‘‘agencies need not observe the

rules of evidence observed by courts.’’ See also McCor-

mack, Evidence, § 350, p. 843. The requirements of due

process is that the hearing be ‘‘fair’’ and not that all of

the machinery of a criminal trial be incorporated in the

hearing. Allen v. Greensboro, North Carolina, 452 F. 2d

489 (4th Cir. 1971). In this case, there can be no showing

that the hearings were not fair. :

In addition, the United States Supreme Court has held

that there is no violation of due process where a public

13

agency combines both the investigation and adjudicative

function, Withrow v. Larkin, 421 U.S. 35 (1975). See gen-

erally Hortonville Joint School Dist. No. 1 v. Hortonville

Education Ass’n, 426 U.S. 482 (1976).

The complaint fails to allege any specific bias toward

the individual plaintiffs, but merely alleges in effect that

the Police Commissioner, because of the duties of his office,

violated the plaintiffs’ due process right by conducting

the civil service hearing. That is not a situation involving

a ‘‘Biased decisionmaker’’ referred to in Withrow at p. 47.

The Police Commissioner is compelled by law to administer

the Boston Police Department and to conduct civil service

hearings. General Laws, c. 31, § 43(a@) provides that civil

service hearings must be held before the ‘‘appointing

authority.’’ The definition of ‘‘appointing authority,’’

in G.L. c. 31, § 1, is that officer who has the power to

hire and fire. Therefore, the Police Commissioner, by

virtue of St. 1962, c. 322, is the only person who is the

appointing authority. Failure to conduct the hearing

before the Police Commissioner may render a disciplinary

action null and void. See Cullen v. Mayor of Newton,

308 Mass. 578, 582-583 (1941). In addition, all depart-

ment rules and guidelines are ‘‘orders’’ of the police

commissioner. Therefore, a decision from this court which

precludes the Police Commissioner from conducting hear-

ings will, in effect, prevent the imposition of any disci-

pline for violation of rules or guidelines for the Boston

Police Department as well as for all of the Departments,

and all of the State and Local governments. Clearly,

the procedure followed by the Police Commissioner is not

a violation of due process.

14

V. Tae Compiaint rn THE Present Case Fans to AL-

LEGE SuFrFicrent Facts upon Wuicu a Cxam ror ReE-

LIEF MAY bE GRANTED AND 18s SuBJECT TO DISMISSAL UNDER

Fep. R. Crv. P., Ruiz 12 (b) (6).

The motion to dismiss for failure to state a cause of

action, Fed. R. Civ. P., Rule 12(b)(6), calls upon the

court to separate legal conclusions from well-pleaded facts

in evaluating the plaintiff’s complaint. While the court

‘is bound to accept as true all well-pleaded facts, it is

clear that the court may refuse to accept legal conclu-

sions, unsupported conclusions, unwarranted inferences

and deductions, or sweeping legal conclusions cast in the

form of factual allegations. Wright and Miller, Federal

Practice and Procedure, § 1356, at pp. 594-596 (1969).

Although well-pleaded facts are deemed admitted for the

testing of the complaint’s sufficiency, such an admission

does not include legal conclusions drawn from these facts.

Newport News Shipbuilding & Dry Dock Co. v. Schauffler,

303 U.S. 54, 57 (1938). Where a complaint is entirely con-

clusory and alleges no facts upon which a court could find

a denial of constitutional rights, a motion to dismiss filed

pursuant to Fed. R. Civ. P., Rule 12(b)(6) should be

granted. Avins v. Mangum, 450 F. 2d 932, 933 (2d Cir.

1971).

The plaintiffs strongly rely on language in the case

of Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The opin-

ion in Conley states that a complaint may not be dis-

missed unless it appears beyond doubt that the plaintiff

can prove no set of facts which would entitle him to re-

lief. Although this rule may apply in some cases, it

has recently been distinguished in a case quite similar

to the case at bar. In Lyons v. Gilligan, 382 F. Supp.

198 (N.D. Ohio 1974), the court considered the plaintiff’s

reliance on the language in Conley but held the rule not

15

to be applicable and dismissed the case. The Lyons court

was faced with a complaint which alleged the denial of

the Constitutional right to privacy and the imposition

of cruel and unusual punishment in violation of the Kighth

Amendment. The defendants moved for a dismissal pur-

suant to Rule 12(b)(6) of the Fed. R. Civ. P. The plain-

tiffs contended that no dismissal should be granted due

to the rule in the Conley case. The court granted the mo-

tion to dismiss and answered the plaintiffs’ contention in

the following statement:

Because these claims turn on constitutional consider-

ations that may be fully tested in light of the facts

alleged in the complaint and accepted as true for

the purpose of considering the defendant’s motion to

dismiss, it is concluded that this case does not fall

within that rule. Lyons, Id., at p. 199.

The plaintiffs also cite Gillibeau v. Richmond, 417 F. 2d

426, 430 (9th Cir. 1969), as standing for the proposition

that a dismissal may only be granted in a civil rights

suit if the plaintiff can prove no set of facts in support

of his claim which would entitle him to relief. The facts

of the Gillibeau case distinguish it from the case at bar.

In Gillibeau, the defendants were challenging the plain-

tiff’s ability to comply with the rule governing class ac-

tions [Fed. R. Civ. P., Rules 23, 23(a)(1-4)(b)]. Id., at

p. 432. The allegations in the complaint involved com-

plex issues of conspiracy, unreasonable search and seizure,

and interference with the right to assemble. The case at

bar involves no such complex factual allegations. The

holding in Gillibeau was further refined by the court in

Mastandrea v. Gurrentz International Corp., 65 F.R.D.

52 (D. Pa. 1974). The opinion in Mastandrea referred to

the Gillibeau case but added that, ‘‘if allegations in

16

complaint, taken as true do not effectively state a claim,

added assertion by the plaintiff that they do state a claim

will not save complaint.’’ Jd., at p. 54.

A motion to dismiss will be granted where it is clear

that, even if the facts alleged in the complaint are true,

there is no deprivation of a Constitutional right. Hahn

v. Sargent, 388 F. Supp. 445, 450 (D. Mass. 1975); aff’d

523 F. 2d 461 (1st Cir. 1975) cert. denied, 96 S. Ct. 1495

(March 29, 1976). This is particularly true where the

law does not support the plaintiff’s case and clearly points

in favor of the defendant’s case. Mellon National Bank &

Trust Co. v. Nationwide Mutual Insurance Co., 32 F.R.D.

365, 366 (W.D. Pa. 1962).

Conclusion.

For the above stated reasons, the Petition should be

denied.

Respectfully submitted,

POLICE COMMISSIONER

OF THE CITY OF BOSTON,

LAWRENCE J. BALL,

Special Assistant Corporation

Counsel,

JOHN W. FIELDSTEEL,

3 Center Plaza, Room 630,

Boston, Massachusetts 02108.

(617) 742-1183

17

Appendix.

Coprz or FeperaL Recu ations.

Title 31—Money and Finance: Treasury.

STaTEMENT OF EMPLOYMENT AND FINANCIAL INTERESTS.

§ 0.735-70 Employees required to submit statements.

Except as provided in § 0.735-71 statements of employ-

ment and financial interests will be filed by the following

employees :

(a) Those paid at a level of the Executive Schedule in

Subchapter II of Chapter 53 of Title 5, United States Code.

(b) Those classified at GS-13 or above under 5 U.S.C.

5332, or at a comparable pay level under another authority,

who are in positions, specifically identified in Appendix A to

this part, the incumbents of which are responsible for mak-

ing a Government decision or taking a Government action

in regard to:

(1) Contracting or procurement;

(2) Administering or monitoring grants or subsidies;

(3) Regulating or auditing private or other non-Federal

enterprise ; or

(4) Other activities where the decision or action has an

economic impact on the interests of any non-Federal enter-

prise.

(c) Those classified at GS-13 or above under 5 U.S.C.

5332, or at a comparable pay level under another authority,

who are in positions, specifically identified in Appendix A

to this part, which the Secretary of the Treasury has de-

termined have duties and responsibilities which require the

incumbent to report employment and financial interests in

order to avoid involvement in a possible conflicts-of-interest

18

situation and carry out the purpose of law, Executive order,

5 CFR Part 735, and this part.

(d) Those classified below GS-13 under 5 U.S.C. 5332,

or at a comparable pay level under other authority, who are

in positions which otherwise meet the criteria in paragraphs

(b) and (c) of this section, but only when the inclusion of

the positions in Appendix A to this part has been specifi-

cally justified by the Secretary of the Treasury in writing

to the Civil Service Commission as an exception that is es-

sential to protect the integrity of the Government and avoid

employee involvement in a possible conflicts-of-interest

situation.

(e) Alterations to, deletions from, and other amend-

ments of the list of positions in Appendix A to this part

may be made under the criteria in paragraphs (b) through

(d) of this section and are effective upon approval by the

Secretary of the Treasury and*aetual notification to the

incumbents. Amendments to the list in Appendix A of this

part shall be submitted annually for publication in the

FEDERAL REGISTER.

§ 0.735-76 Interests of employees’ relatives.

For purposes of completing the statements of employ-

ment and financial interests, the interest of a spouse, minor

child, or other member of the employee’s immediate house-

hold is to be considered an interest of the employee. In

other words, those blood relations who are residents of the

employee’s household are to be treated for purposes of com-

pleting the financial statement as though they were the em-

ployee and therefore, the report of financial statements

should reflect their employment and financial interests in

the same manner that the employment and financial inter-

ests of the employee are shown.

. no necns wmmcla> es

19

Title 5—Administrative Personnel.

Subpart D—Agency Regulations Governing Statements

of Employment and Financial Interests

§ 735.401 Form and content of statements.

The statements of employment and financial interests re-

quired under this subpart for use by employees and special

Government employees shall contain, as a minimum, the in-

formation required by the formats prescribed by the Com-

mission in the Federal Personnel Manual. An agency shall

not include questions on a statement of employment and

financial interests that go beyond, or are in greater detail

than, those included on the Commission’s formats without

the approval of the Commission.

§ 735.407 Interests of employees’ relatives.

The interest of a spouse, minor child, or other member

of an employee’s immediate household is considered to be

an interest of the employee. For the purpose of this section,

‘‘member of an employee’s immediate household’’ means

those blood relations who are residents of the employee’s

household.