Petition — Mace v. Matthews

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WiCHAm RODAK, JR., CLERK

In the

Supreme Court of the United States.

OcroBeER TERM, 1978.

No. ' 78-1506

ROBERT W. MACE,

PETITIONER,

BYRON J. MATTHEWS,

MAYOR OF THE Ciry OF NEWBURYPORT,

RESPONDENT.

Petition for a Writ of Certiorari to the Supreme

Judicial Court of Massachusetts.

Francis J. O’RourKE,

75 Federal Street, Suite 600,

Boston, Massachusetts 02110.

(617) 542-0896

Of Counsel: Counsel for Petitioner.

BrickLey, SEARS & COLE,

75 Federal Street, Suite 600,

Boston, Massachusetts 02110.

(617) 542-0896

BATEMAN & SLADE, INC. BOSTON , MASSACHUSETTS.

Table of Contents.

Opinions below

Jurisdiction

Question presented

Statute involved

Statement of the case

Reasons for granting the writ

I. Introduction

II. The rulings below have foreclosed the peti-

tioner from judicial review of properly joined,

genuine constitutional issues of substantive and

procedural due process 12

A. Substantive due process issues 12

B. Procedural due process issues 15

III. The rulings below are in conflict with the

plain terms of Rule 56 of the Rules of Civil Pro-

cedure of the Commonwealth of Massachusetts _.

and with the decisions of this Court establishing

the constitutional standards to be applied there-

to 17

Conclusion 22

Appendix follows page 22

ome rR WNW NY WO

Table of Authorities Cited.

CASES.

Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970) 21

Arnett v. Kennedy, 416 U.S. 134 (1974) 12

ii TABLE OF AUTHORITIES CITED.

Askew v. Hargrave, 401 U.S. 476 (1971)

Associated Press v. United States, 326 U.S. 1 (1945)

Bell v. Burson, 402 U.S. 535 (1971)

Bishop v. Wood, 426 U.S. 341 (1976) 13, 14,

Board of Regents v. Roth, 408 U.S. 564 (1972) 12,

Canney v. Municipal Court of the City of Boston, 368

Mass. 648, 335 N.E. 2d 651 (1975)

Chaddock v. Briggs, 13 Mass. 248, 7 Am. Dec. 137

(1816)

Giaccio v. Pennsylvania, 382 U.S. 399 (1966)

Hoffman v. Babbitt Bros. Trading Co., 203 F. 2d 636

(9th Cir. 1953)

Hoke v. Retail Credit Corp., 521 F. 2d 1079 (4th Cir.

1975), cert. den. 423 U.S. 1087 (1976)

Kennedy v. Silas Mason Co., 334 U.S. 249 (1948)

Mathews v. Eldridge, 424 U.S. 319 (1976)

Moore v. City of East Cleveland, 431 U.S. 494 (1977)

Morgan v. United States, 304 U.S. 1 (1938)

Morrissey v. Brewer, 408 U.S. 471 (1972)

Mourning v. Family Pub. Serv., Inc., 411 U.S. 356

(1973)

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

Perry v. Sindermann, 408 U.S. 593 (1972)

Poller v. Columbia Broadcasting System, Inc., 368

U.S. 464 (1962)

Powers v. District Court of Southern Essex, 2 Mass.

App. Ct. 816, 309 N.E. 2d 889 (1974)

Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620

(1944)

19, 20

15, 19

12,14

18, 19

17, 18

14, 15

TABLE OF AUTHORITIES CITED. iii

Schware v. Board of Bar Examiners, 353 U.S. 232

(1957) 17

Stanley v. Illinois, 405 U.S. 645 (1972) 16

State of Oregon v. United States, 195 F. Supp. 276 (D.

Ore. 1961), aff'd, 308 F. 2d 568 (9th Cir. 1962),

cert. den. 372 U.S. 941 (1963) 19

Stubbs v. United States, 428 F. 2d 885 (9th Cir. 1970),

cert. den. 400 U.S. 1009 (1971) 21

United States v. Diebold, Inc., 369 U.S. 654 (1962) 19

Williams v. Chick, 373 F. 2d 330 (8th Cir. 1967) 20

Willner v. Committee on Character and F itness, 373

U.S. 96 (1963) 16, 22

CONSTITUTIONAL AND STATUTORY PROVISIONS.

United States Constitution

Fifth Amendment 12

Fourteenth Amendment 3, 8, 9, 11, 12, 13, 14 et seq.

28 U.S.C. § 1257(3) 2

42 U.S.C. § 1983 13

G.L. c. 31

§ 20D 3,5, 8,9

§ 34 3

§ 43 ; 4

§ 46A 4

G.L.c. 231A, § 1 4, 18

iv TABLE OF AUTHORITIES CITED.

PROCEDURAL RULES.

Federal Rules of Civil Procedure

Rule 56 18, 19

Rule 56(e) 21

Massachusetts Rules of Civil Procedure

Rule 56 2, 17, 18, 19, 20, 21

Rule 56(b) 1, 2, 3, 6, 7, 9, 10 et seq.

Rule 56(c) 8,19

Rule 56(e) 8

Rule 57 18

MISCELLANEOUS.

Wright & Miller, Federal Practice and Procedure:

Civil (1973) 21

In the

Supreme Court of the United States.

OctrosBer TERM, 1978.

No.

ROBERT W. MACE,

PETITIONER,

BYRON J. MATTHEWS,

MAYOR OF THE City OF NEWBURYPORT,

RESPONDENT.

Petition for a Writ of Certiorari to the Supreme

Judicial Court of Massachusetts.

The petitioner respectfully prays that a writ of certiorari

issue to the Supreme Judicial Court of Massachusetts to review

the judgment thereof entered November 24, 1978, affirming

the entry of a Rule 56(b) summary judgment against the peti-

tioner by the Superior Court of Massachusetts on February 13,

1978, and that the judgment below be reversed.

Opinions Below.

There were none.

The Supreme Judicial Court’s entry, after submission of

briefs and argument, was dated November 25, 1978, is re-

printed in its entirety in the appendix hereto at App. 25a, and

consists of the two words: “Judgment affirmed.” A petition

for rehearing was filed on December 4, 1978, and denied

December 15, 1978 (see copy of that court’s docket certified

on February 7, 1979, reprinted in the appendix hereto at

App. 24a-25a).

No opinion was rendered by the Massachusetts Superior

Court. The respondent’s Rule 56(b) motion for summary

judgment was granted on February 13, 1978, by appropriate

entries of that date on its face, including the word “Allowed,”

and relevant entries on the Superior Court docket sheet (see

copy of motion for summary judgment, reprinted in the ap-

pendix hereto at App. 22a; copy of Massachusetts Superior

Court summary judgment (Mass. R. Civ. P. 56) also dated

2/13/78, reprinted in the appendix hereto at App. 23a-24a,

and Superior Court docket entries, reprinted in the appendix

hereto at App. la-2a).

Jurisdiction.

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1257(3).

Question Presented.

Where a non-mandatory hearing is convened by the public

authority to hear misconduct charges against a regular but

3 f,

probationary police officer, he is excluded therefrom, denied

the right of confrontation and cross-examination of testimony

of perjurious witnesses, and then discharged by notice incor-

porating the perjury as findings of fact, may a state civil serv-

ice statute, providing for summazy dismissal of regular proba-

tionary police officers without hearing, be invoked under Rule

56(b) of the Rules of Civil Procedure so as to preclude trial of

the issues of perjury and Fourteenth Amendment due process

infirmities in the dismissal notice and the hearing?

Statute Involved.

The principal state statute apparently relied upon by both

Massachusetts courts formerly was to be found in chapter 31 of

the Massachusetts General Laws at § 20D (now c. 31, § 34), a

complete reproduction of which is to be found in the appendix

hereto at App. 33a-35a. It recited in pertinent part:

§ 20D. Probationary period. ... “[I]n the case of a

person appointed as a regular police officer in any city or

town, . . . the probationary period shall be nine months.

“Tf the conduct or capacity of a person serving a proba-

tionary period under an appointment in the official serv-

ice or labor service, or the character or quality of the

work performed by him, is not satisfactory to the

appointing authority, he may, at any time after such per-

son has served thirty days and prior to the end of such

probationary period, give such person a written notice to

that effect, stating in detail the particulars wherein his

conduct or capacity or the character or quality of his

work is not satisfactory, whereupon his service shall ter-

minate. The appointing authority shall at the same time

send a copy of such notice to the administrator. In

default of such a notice, the appointment of such person

shall become permanent upon the termination of such

Also printed in the petitioner's “Brief for Plaintiff-

Appellant” in the lower court were: (1) G.L. c. 31, § 43,

“Tenure; Discharge, Removal, Transfer, Abolition of Office,

etc.; Notice; Hearing; Review; Reinstatement; Punishment

Duty; Reimbursement For Defense Expenses”; (2) G.L. c. 31,

§ 46A, “Petition For Writ of Mandamus; Jurisdiction; Pro-

cedure For Reinstatement”; and (3) G.L. c. 231A, § 1, “Power

tu Make Declaratory Determinations; Jury Questions,” all

reproduced in the appendix hereto at App. 35a-43a.

Statement of the Case.

Because no written decisions or opinions were entered by

either of the Massachusetts courts, a chronological statement

of the case follows, tracking the pleadings and docket entries.

The petitioner commenced his action in the Superior Court

by a complaint filed on October 13, 1976, consisting of 20

paragraphs, amended on January 5, 1978, to include a 21st.

Copies of the complaint and petitioner's motion to amend

plaintiff’s complaint (containing paragraph 21 thereto) are in-

cluded in the appendix hereto at App. 2a-18a, 2la.

In substance, the complaint alleged:

(1) that the plaintiff (petitioner herein) had been ap-

pointed a permanent police patrolman in the City of

Newburyport on November 24, 1975, and while serving a

“probationary period” on April 13, 1976, was by letter

notice of the defendant Mayor of Newburyport dis-

charged from his employment for certain enumerated

malfeasances allegedly committed in the course of peti-

tioner’s official conduct (Complaint, {{ 1-4, 9, 13-16,

App. 2a-3a, 4a, 5a-6a); ;

(2) that the procedures and communications, in-

cluding notice of hearing dated April 1, 1976 (Complaint,

Ex. B, App. lla-12a), utilized by the respondent were in-

sufficient, unlawful, and extra-legal under various state

and local laws and regulations, including the sufficiency

of notice of discharge under c. 31, § 20D, dated April 13,

1976 (Complaint, Ex. A, App. 8a-10a) (Complaint, {{ 5-

11, App. 3a-5a);

(3) that with regard to a hearing not mandated by

§ 20D but afforded on April 8, 1976, “. . . under the pro-

visions of the Fourteenth Amendment to the Constitution

of the United States, affording each citizen due process,

the plaintiff was not given a full hearing, for the reason

that the plaintiff was excluded from the hearing room on

the order of the defendant while witnesses were ex-

amined” (Complaint, § 12, App. 5a);

(4) that the evidence presented at the said hearing

upon which both the dismissal and notice of dismissal of

the petitioner by the respondent were based contained

perjured testimony against the petitioner coerced, pro-

cured, and also committed by a named person (Com-

plaint, { 17, App. 6a; Motion to Amend Plaintiff's Com-

plaint, containing § 21, App. 21a);

(5) that the evidence favoring dismissal was insuffi-

cient, that the dismissal of the petitioner was “arbitrary,

capricious, unjust, unsupported by substantial evidence,

and in violation of rights guaranteed to the plaintiff,

under the due process provisions of the Constitution of

the Commonwealth of Massachusetts of the [sic] Con-

stitution of the United States” (Complaint, {J 18 and 19,

App. 6a) and that the petitioner had no adequate remedy

at law (Complaint, § 20, App. 6a).

(The complaint, all its exhibits, and the other pleadings al-

luded to in this petition were reprinted within the record ap-

pendix docketed in the Supreme Judicial Court on September

21, 1978, together with briefs for the appellant and appellee.)

Defendant’s answer to complaint and motion to amend de-

fendant’s answer were docketed in the Superior Court on

November 15, 1976, and January 8, 1978, respectively

(App. la), and consisted in substance of varying admissions

and denials, including a denial of all of {| 9 of the complaint in .

which the petitioner had alleged that he had been serving

“during a probationary period” at the time of his dismissal.

The answer also denied the factual and constitutional due pro-

cess infirmities specifically alleged in J 12, 18, 19 and 21 of

the complaint (App. 18a-20a, 21a).

Respondent's Rule 56(b) motion for summary judgment and

supporting affidavit were docketed on February 6, 1978

(App. 2a, 22a-23a). The affidavit was dated February 3,

1978, and signed by the City Auditor, not the respondent

Mayor (see App. 23a).

After reciting that there is “no genuine issue as to any

material fact, and that the plaintiff [sic] is entitled to judg-

ment as a matter of law,” the affidavit recited in the entirety

of its remainder:

“Police Officer Robert W. Mace was terminated on

April 13, 1976 from his employment with the City of

Newburyport, Police Department. He was at that time

serving in his probationary period under the Civil Service

Regulations governed by MGL, Ch. 31, sec. 20D.

“Signed under the pains and penalties of perjury . . .

[ete.]” (App. 23a.)

Thus, the affidavit offered for the respondent merely repeated

two and only two of the allegations in the petitioner's com-

plaint. The affidavit did not address any of the plaintiff's

other issues joined by the defendant’s answer to the complaint

and motion to amend defendant’s answer filed prior to the fil-

ing of the Rule 56(b) motion and affidavit. No counter-

affidavit was filed on behalf of the petitioner. It is argued

below that none was necessary.

On February 6, 1978, the motion was marked for hearing

on February 13 (App. 2a), when it was allowed following the

hearing. No memorandum of the trial justice was docketed

(App. 2a).

Timely appellate procedures were followed and briefs and a

record appendix submitted to the Massachusetts Appeals

Court. The case was transferred sua sponte to the Supreme

Judicial C’ rt of the Commonwealth and entered there on

September 27, 1978 (App. 24a). It was argued on November

14, 1978; entry of judgment, “Judgment affirmed,” unaccom-

panied by any other writing, was made on November 24,

1978, and rehearing denied December 15, 1978 (App. 24a,

25a).

By inference it appears that both Massachusetts courts

decided that, no countervailing affidavit of the petitioner hav-

ing been filed, summary judgment for the respondent was

mandated by law, despite:

(1) the obvious failure of the affidavit to meet the numerous

allegations of the complaint, including perjury, adequacy of

notice of dismissal based upon perjury, and infirmities ‘of con-

stitutional magnitude in both the dismissal notice and the

voluntary hearing, thus leaving for trial multiple genuine

issues of material fact that had already been joined by the

answer to the complaint and its amendments;

(2) the fact that the affidavit merely recited two facts that

in substance had been alleged in the petitioner's complaint;

(3) the plain terms of the Commonwealth’s Rules of Civil

Procedure that summary judgment, to be “appropriate,” re-

quires that “the pleadings,” etc., “show that there is no gen-

uine issue as to any material fact” (Rule 56(c), (e)).

The brief for the appellant in the Supreme Judicial Court

squarely raised on pages 7, 8 and 9 (reproduced in the appen-

dix at App. 26a-29a) both substantive and procedural due pro-

cess issues asserted in the Superior Court by the paragraphs of

the complaint set forth above. It thus appears that the

Massachusetts Supreme Judicial Court decided that, inasmuch

as the petitioner had been subject to summary discharge after

notice of detailed reasons pursuant to G.L. c. 31, § 20D, he

was therefore not entitled to litigate the remaining issues of

whether the dismissal notice of April 13, 1976, and the hearing

of April 8, 1976, comported with the standards mandated by

the Due Process Clause of the Fourteenth Amendment to the

Constitution of the United States.

Reasons for Granting the Writ.

I. INTRODUCTION.

This case may well be one of first impression, at least as to

some or all of its following aspects:

(1) The hearing voluntarily afforded by the respondent on

the charges against the petitioner clearly was alleged in the

complaint to be, procedurally, a due process shambles, and

that allegation, like all others in the complaint, is conclusive

for purposes of Rule 56(b) summary judgment disposition.

(2) The notice of dismissal containing in detail the reasons

therefor as mandated by the state statute incorporated evi-

dence also alleged in the complaint to be perjurious, a factual

foundation obviously neither contemplated by nor within the

reach of any constitutional statutory scheme of the Great and

General Court of the Commonwealth of Massachusetts regard-

less of purpose, let alone one intended to afford reasons for

dismissal of permanent probationary police officers from the

civil service.

(3) The equitable relief prayed for in the complaint, seeking

judicial determinations on the lawfulness of the findings and

decision of the respondent, reversal thereof, and various

related orders, was a remedy appropriate and available to the

petitioner under the statutes, case law, and Rules of Civil Pro-

cedure of the Commonwealth. Disposition of the case by way

of Rule 56(b) clearly affected the petitioner's rights, both pro-

cedural and substantive, within the Due Process Clause of the

Fourteenth Amendment.

(4) The complaint clearly invoked the protections of the

Due Process Clause of the Fourteenth Amendment, and the

“liberty” and “property” aspects of that Clause unmistakably

were invoked by the brief for the plaintiff-appellant in the

Supreme Judicial Court, and opposed there by the respond-

ent’s brief for defendant-appellee.

Governmental entities at the state and municipal level too

abundant for enumeration here have enacted statutes and or-

dinances analogous to G.L. c. 31, § 20D, providing for ter-

mination of probationary civil service employment forthwith

upon service of notice of detailed reasons for dismissal.

In recent years the several States have increasingly adopted

the Federal Rules of Civil Procedure as the rules for their own

trial courts. On July 1, 1974, Massachusetts did so, verbatim

from the Federal model, with few changes. Furthermore,

that State and others have looked to this Court and the lower

federal courts for constitutional interpretations and guidance

in the application of those rules.

Obviously, this petitioner's interests in his professional

reputation and career would have been better served had the

respondent not afforded any hearing for the perjured testi-

mony but merely provided the petitioner with the dismissal

notice. Presumably, the respondent could not have interposed

thereafter in a judicial proceeding the apparently successful

claim by way of an affidavit that the petitioner, a proba-

tionary employee, inferentially was not entitled to a hearing in

any circumstances (the contrary position will be addressed be-

low). However, the Rule 56(b) disposition could not have ad-

dressed the question whether the petitioner was entitled to Liti-

gate the allegation of the perjurious basis of the dismissal

notice (Complaint, {ff 17, 21, App. 6a, 21a) because those

allegations were not addressed by the affidavit supporting the

Rule 56(b) motion, and since they had to be taken as true un-

less contradicted, they remained genuine issues of fact for

trial. Indeed, they had been properly joined by way of denial

in the respondent's answer filed on November 15, 1976 (App.

la, 18a-20a), before he filed his Rule 56(b) motion on Febru-

ary 6, 1978 (App. 2a, 22a). A review of the documents indi-

cates that there remained rather prominent in the case unre-

solved genuine issues of material fact and that the moving

party's position was far from secured as a matter of constitu-

tional law.

Accordingly, the unusual facts of this case provide a clear

opportunity for this Court to deal with some or all of the

following propositions:

(1) Hearings voluntarily afforded by the public authority to

complainants to ventilate misconduct allegations against pro-

bationary police officers must observe rudimentary principles

of procedural due process, including attendance thereat by the

officer and the right of confrontation and cross-examination of

adverse witnesses, where one result of the hearing might be the

officer's forthwith dismissal from employment,

(2) Whether such hearings are to be afforded or not, subse-

quent summary notices of dismissal required to be factual pur-

suant to an otherwise constitutional statutory scheme may not

have such a heinous, contemptible, and unlawful foundation

as perjury.

(3) Summary and complete dispositions by a State of ap-

propriate judicial remedies pursued by public employees may

not be based upon the invocation of a state statute in a manner

that does not address well-pleaded allegations of denial of

rights secured by the Due Process Clause of the Fourteenth

Amendment.

This Court repeatedly has characterized the local police of-

ficer as the single most prominently visible symbol of law and

democratic government. Indeed, it may fairly be said that his

claimed powers constitutionally to serve those interests have

been given generous and often favorable consideration by this

Court in recent years.

The facts of this case have ominous implications for the per-

formance of official duties by all local law enforcement of-

ficers and other public servants in probationary status that are

well beyond the private calamity visited upon the professional

and personal capabilities of this petitioner to pursue his chosen

profession in service to the interests of the community he swore

to protect. All that he seeks here is an opportunity to prove in

the courts of his own Commonwealth that he did not violate

that oath. He should have it.

Il. THe Rutincs BELOW HAVE FORECLOSED THE PETITIONER

FROM JUDICIAL Review OF PROPERLY JOINED, GENUINE CON-

STITUTIONAL IssuES OF SUBSTANTIVE AND PROCEDURAL DUE

PROCESS.

A. Substantive Due Process Issues.

In affirming the trial court’s judgment, the Supreme Judi-

cial Court foreclosed the petitioner from litigating his substan-

tive interests in “liberty” or “property” or both, as the same

are protected by the Due Process Clause of the Fourteenth

Amendment.

The substantive due process “liberty” interest of federal

civil service employees in not being wrongfully stigmatized by

untrue and unsupported administrative charges was recog- _

nized by this Court in Arnett v. Kennedy, 416 U.S. 134,

156-158 (1974).

That case extended through the Fifth Amendment a similar

interest of state employees earlier recognized in Board of

Regents v. Roth, 408 U.S. 564 (1972). Roth described a Four-

teenth Amendment substantive due process “liberty” interest

of a state university employee as to any action by the State that

imposed charges against him or a stigma or disability that fore-

» closed his freedom to take advantage of other employment op-

portunities. Id. at 569-579.

Arnett, in ruling in effect that on its facts there was no ne-

cessity for a trial-type pre-removal hearing, went on to assert

that the federal employee's cognizable “liberty” interest was

adequately protected by a discretionary evidentiary hearing

provided by administrative regulation to occur post-removal,

a clear indication that the “liberty” interest of the Fifth

Amendment is not constitutionally extinguished by termina-

tion of employment. Arguably, since Arnett relied so heavily

on Roth, the “liberty” interest protected by the Fourteenth

Amendment also survives state or local employment termina-

tion, a matter not dealt with by the lower court’s judgment

against this petitioner, who cited Roth at p. 8 of his brief there

(App. 28a).

This Court’s Roth decision presumed that inasmuch as the

employee “simply [was] not rehired” he remained as free as

before to seek other professional employment. Id. at 575.

This petitioner argued in his brief below that the facts were

otherwise for him, asserting on p. 7 (App. 27a) that if the ac-

cusation of professional misconduct went unchallenged in the

courts, it could “seriously impair his right to secure other

employment, more especially in the law enforcement field,”

an allegation that he presently is foreclosed from proving at

trial because of the incorrect application of summary judg-

ment to his complaint (see part III, below).

The petitioner's self-evident “liberty” interest was in avoid-

ing professional stigmatization, particularly one based upon

perjury, to his chosen career. This Court ruled in Bishop v.

Wood, 426 U.S. 341 (1976), that a false dismissal explanation

privately communicated post-termination to a former police

officer by his former superior reflected at worst upon the cor-

rectness of the superior’s decision and his prudence, not upon

the officer. Thus his claim of a constitutionally protected

“liberty” interest was neither enhanced nor diminished.

The respondent herein relied upon that case in his brief for

the defendant-appellee before the Supreme Judicial Court,

asserting that the claim in Bishop under a 42 U.S.C. § 1983 ac-

tion for back pay rested upon a “property and liberty interest

theory” (emphasis supplied) (App. 32a), thus rewriting both

Bishop and the disjunctive language of the Due Process Clause

itself. He then went on, at p. 5, to assert that in Bishop this

Court “held the claimed right or interest must be created

under state law and that [this Court] would defer to state stat-

utes and case law” (App. 32).

Bishop holds that a “property” interest in the expectation of

continued employment must be guaranteed under state law to

be so cognizable by the Fourteenth Amendment as to trigger

the procedural protections of the Due Process Clause. Pre-

sumably, such a guarantee is subject to proof at trial, like any

other claim.

Bishop does not hold that the expectation of continued em-

ployment is the only protected “property” interest, nor does it

hold that a “liberty” interest in reputation is subject to de-

struction by perjury either voiced during an uncontestable

hearing convened by the public authority or incorporated

within a summary dismissal notice actually serving to termi-

nate publicly regulated employment.

The language of Paul v. Davis, 424 U.S. 693 (1976), imports

that a “property” interest in an intangible such as reputation is

cognizable by the procedural protections of the Due Process

Clause when conjoined with a tangible interest such as em-

ployment. That language quotes extensively from earlier lan-

guage in Roth, supra, such as “declining to rehire” and “to re-

employ the respondent.” Id. at 709. Paul goes on to hold

that, as to the damage to reputation, “the defamation had to

occur in the course of the termination of employment.” Id. at

710. Paul also correctly speaks in the disjunctive of the pro-

tected interests, i.e., “either ‘liberty’ or ‘property’ as meant in

the Due Process Clause.” Jd. at 710.

The law of Massachusetts has recognized an actionable

“property” interest in personal and professional reputations

alike for generations. Chaddock v. Briggs, 13 Mass. 248, 7

Am. Dec. 137 (1816). Since determination of the protected

“property” interest in expectation of continued employment is

to be had by reference to substantive state law, Bishop v.

Wood, supra, then it is also constitutionally permissible to ref-

erence the state law for a protected “property” interest in pro-

fessional or personal reputation, in addition to the recognized

“liberty” interest that actuates due process protections against

professional stigmatization.

In other words, it may be reasonably said that the facts of

this petitioner’s case not only give rise to a protected “liberty”

interest but also may well merge with the underlying state law

of defamation so as to create a parallel “property” interest

guaranteed by state law, subject to proof, quite apart from a

“property” interest in expectation of continued employment.

Stated yet another way, the facts alleged within the petitioner’s

complaint in the Superior Court, taken as true for purposes of

summary judgment, raise both “liberty” and “property” inter-

ests as defined by this Court, so as to trigger the procedural

provisions of the Due Process Clause of the Fourteenth Amend-

ment. Bishop v. Wood, supra. Paul v. Davis, supra.

The Superior Court docket entries (App. la-2a) show that

the petitioner’s complaint was filed on October 13, 1976, six

months to the day from the date of the respondent’s notice of

dismissal. Obviously, a timely action had to be filed, but it

cannot be inferred from these facts that the time frame of the

litigation initiated by the petitioner elicited for himself any

unfavorable publicity concerning his dismissal other than

would be within the exclusive control of the media or precipi-

tated six months earlier by the respondent’s action in dismiss-

ing him. As will be seen below, the petitioner’s later litigation

invoked the only judicial mechanism available to him under

Massachusetts statute and case law.

B. Procedural Due Process Issues.

This petitioner as a probationary regular police officer in

the Commonwealth reasonably could not have perceived his

nine months probationary appointment status to have provided

a “property” interest expectation in continued salaried em-

ployment, or an employment interest other than an opportu-

nity to convert his appointment to a permanent career. He

did have, however, a constitutional right, given his other

“liberty” and “property” interests, supra, to procedural due

process. It is settled law that any proceedings involving his

conduct and reputation so as to affect his professional status

(and its accompanying reputation) must be permeated -with

fairness in its beginning, intermediate, and concluding steps.

Morgan v. United States, 304 U.S. 1, 18-19 (1938), cited for

Fourteenth Amendment purposes in Willner v. Committee on

Character and Fitness, 373 U.S. 96, 105 (1963).

The same concept has been restated by the Commonwealth’s

own courts somewhat differently in Powers v. District Court

of Southern Essex, 2 Mass. App. Ct. 816, 309 N.E. 2d 889

(1974), holding that the requirements of substantial justice

must be observed in proceedings for the discharge of persons in

the classified civil service.

It is not argued here that the petitioner held a subjective ex-

pectancy of a regular permanent appointment or, if he did,

that standing alone it should be protected by procedural due

process. Nonetheless, it is postulated that his allegation of per-

jurious evidence contained within both the hearing voluntarily

afforded to his accusers but denied to him and the subsequent

notice of dismissal was well-founded on an established and

widely perceived public policy of the United States and the

Commonwealth first enunciated centuries ago: thou shalt not

bear false witness.

That is not merely “a de facto policy related to tenure,”

Perry v. Sindermann, 408 U.S. 593 (1972). It is also the public

understanding of a law promulgated throughout the nation tu

prohibit perjury and fostered by punishment for felony. An

otherwise constitutionally valid civil service tenure policy can-

not be so applied as to deny a litigant the opportunity to prove

such basic illegitimacy in the reasons for his dismissal from

public employment, and procedural due process may not le-

gitimately be denied under those circumstances. Perry, supra,

at 599-603.

Constitutional principles do not require a hearing in every

conceivable case of governmental impact on a private interest.

Stanley v. Illinois, 405 U.S. 645 (1972). However, just as the

appropriate limits on the substantive due process rights that

activate procedural due process come not from drawing arbi-

trary lines but from careful respect for the teachings of history

and a solid recognition of the basic values of our society, Moore

v. City of East Cleveland, 431 U.S. 494 (1977), a procedural

rule that may satisfy due process in one context may not neces-

sarily satisfy it in another. Bell v. Burson, 402 U.S. 535 (1971).

Due process is a flexible concept that calls for such proce-

dural safeguards as the particular situation demands, Morris-

sey v. Brewer, 408 U.S. 471 (1972), and it is not a technical

conception with fixed content unrelated to time, place and cir-

cumstances. Rather, it is flexible and calls for such procedural

protections as the particular situation demands. Mathews v.

Eldridge, 424 U.S. 319 (1976).

A governmental hearing excluding the target of misconduct

charges and resulting in employment termination is no hearing

at all. A public employment dismissal notice that itself is

founded upon the commission of a crime is not a governmental

mechanism permissible under the Supreme Law of the Land.

This petitioner’s state court claim of a constitutional right to

litigate the stated reasons for his dismissal, based upon well-

pleaded allegations of perjury that must be taken as true for

purposes of summary judgment disposition, is supported by

settled constitutional principle: that a state cannot exclude a

person “from any . . . occupation in a manner or for reasons

that contravene the Due Process or Equal Protection Clause of

the Fourteenth Amendment.” Schware v. Board of Bar Ex-

aminers, 353 U.S. 232, 238-239 (1957) (emphasis supplied).

III. THe Ruuincs BELow are IN Conruicr WITH THE PLAIN

TERMS OF RULE 56 OF THE RULES OF CiviL PROCEDURE OF THE

COMMONWEALTH OF MASSACHUSETTS AND WITH THE DEct-

SIONS OF THis Court ESTABLISHING THE CONSTITUTIONAL

STANDARDS TO BE APPLIED THERETO.

At the time of the petitioner’s discharge from his proba-

tionary status there was no provision within Massachusetts’

civil service statutory scheme for review by the state Civil

Service Commission of probationary dismissals. However,

direct judicial review is available nonetheless under G.L.

c. 231A, § 1, providing for declaratory relief, Canney v. Mu-

nicipal Court of the City of Boston, 368 Mass. 648, 335 N.E.

2d 651 (1975), and by the terms of Massachusetts Rules of Civil

Procedure, Rule 57, that procedure “shall be in accordance

with these rules ....” Canney supra, 368 Mass. at 655.

Thus, the petitioner's complaint was both substantively and

procedurally pursued correctly under the existing state statutes

and case law.

This Court has addressed the question of state procedural

actions affecting Fourteenth Amendment due process rights in

unmistakable language. It has held that the identification of

the specific dictates of due process generally requires consid-

eration of three factors:

(1) the private interests affected by the state action;

(2) the risk of erroneous deprivation of such interests

through the procedures used and the probable value if

any of additional or substituted procedural safeguards;

and

(3) the governmental interests, including the function

involved and the fiscal and administrative burden that

additional or substituted procedural requirements would

entai!. Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

At the time the Massachusetts courts applied Rule 56(b) to

this petitiouer’s complaint the Rule was identical in its word-

ing with Rule 56 of the Federal Rules of Civil Procedure. (See

Massachusetts Rule 56, reproduced in the Appendix hereto at

App. 43a-45a).

It is axiomatic that Rule 56 is not a mere technical proce-

dure, but that it affects substantive rights of litigants. Hoff-

man v. Babbitt Bros. Trading Co., 203 F. 2d 636, 637 and n. 1

(9th Cir. 1953), inasmuch as it operates as res judicata, State

of Oregon v. United States, 195 F. Supp. 276, 277-278 (D.

Ore. 1961), affirmed on other grounds, 308 F. 2d 568 (9th Cir.

1962), cert. den. 372 U.S. 941 (1963), thus going to the merits

of the action. Hoke v. Retail Credit Corp., 521 F. 2d 1079,

1081 n. 3 (4th Cir. 1975), cert. den. 423 U.S. 1087 (1976).

Since the Rule may not be used to deprive a litigant of a full

trial of genuine fact issues, it must be “cautiously invoked” so

that no person will be improperly deprived of a trial of dis-

puted factual issues. Associated Press v. United States, 326

U.S. 1, 6 (1945). Under Rule 56 a court may only determine

whether there are issues to be tried; it is not empowered to

make a determination of those issues. Hoffman v. Babbitt

Bros. Trading Co., supra.

The plain terms of the Massachusetts Rule require the trial

court to make its determination based upon a review of “the

pleadings [and] . . . the affidavits, if any . . .” and that these

documents must show “that there is no genuine issue as to any

material fact and that the moving party is entitled to a judg-

ment as a matter of law. .. .” (See Mass. R. Civ. P., Rule

56(c), App. 43a-44a.)

According to this Court, such an evaluation “must be viewed

in the light most favorable to the [adverse] party” on infer-

ences to be drawn from the underlying facts, United States v.

Diebold, Inc., 369 U.S. 654, 655 (1962), including the allega-

tions in his complaint. Bishop v. Wood, supra.

Inasmuch as the petitioner filed no opposing affidavit, the

next question is whether his claim for relief founders on that

fact. Since the lower court had to review the entire record, in-

cluding the pleadings, the issue may be resolved by reference

to the allegations of the complaint and the affidavit in support

of the Rule 56 motion that must dispose of all the well-pleaded

issues. If that affidavit leaves unresolved one or more genuine

: 20

issues of material fact, then summary judgment by the stand-

ards of this Court must be resolved in favor of the petitiones.

Associated Press v. United States, supra.

The affidavit (App. 22a-23a) recited only two facts:

(1) that the petitioner had been dismissed on April 13,

1976 and

(2) that on that date he was within his probationary

employment term as defined by state statute.

Both of those facts having been set forth in the petitioner's

complaint (see App. 3a, 4a), the affidavit amounted in effect

to a stipulation reversing the respondent's denial of those two

facts in his answer to the complaint (App. 18a-20a) filed prior

to his Rule 56 motion (see docket entries, App. la-2a).

Reduced to its barest terms, the issue then is whether the af-

fidavit, which amounted in effect to a stipulation, was disposi-

tive of all the issues raised in the complaint. If a stipulation,

whether by way of affidavit or otherwise, either equivocates

or leaves a genuine issue of material fact in dispute, then it is

undispositive and summary judgment must be denied. Wil-

liams v. Chick, 373 F. 2d 330, 331 (8th Cir. 1967). The affi-

davit relied upon by the respondent did not address any of the

well-pleaded facts that raised issues of constitutional dimen-

sions in this case, including those of insufficiency of the notice

of dismissal detailing false and perjurious facts, and the denial

of full access by the petitioner to the hearing voluntarily af-

forded to the charges of professional misconduct that resulted

in his dismissal.

“Rule 56(e) states that a defense is required only if the mo-

tion for summary judgment is ‘supported as provided in this

rule’ and that even if the opposing party fails to submit

counter-evidence, summary judgment shall be entered only ‘if

appropriate.” Wright & Miller, Federal Practice and Proce-

dure: Civil (1973), § 2739, at p. 716. The authors go on to

quote the Advisory Committee Note as follows: “Where the

evidentiary matter in support of the motion does not establish

the absence of a genuine issue, summary judgment must be

denied even if no opposing evidentiary matter is presented”

(emphasis added by Wright & Miller), pp. 716-717; this lan-

guage is also quoted in Adickes v. 8. H. Kress & Co., 398 U.S.

144, 159-160 (1970); Mourning v. Family Pub. Serv., Inc., 411

U.S. 356, 382-383 (1973) (Douglas, J., dissenting in part).

Adickes also stands for the proposition that inferences drawn

from the facts contained in the moving party's materials must

be viewed in the light most favorable to the adverse party.

Adickes, supra, at 158-159. See also Stubbs v. United States,

428 F. 2d 885 (9th Cir. 1970), cert. den. 400 U.S. 1009 (1971).

This Court has also held that summary judgment may not

be “appropriate” within the meaning of Rule 56(e) in cases in-

volving complicated public issues and constitutional questions.

Kennedy v. Silas Mason Co., 334 U.S. 249, 256-257 (1948).

Askew v. Hargrave, 401 U.S. 476, 478-479 (1971).

Before summary judgment will be granted, this Court has

ruled that it mst be clear what the truth is, Poller v. Colum-

bia Broadcasting System, Inc., 368 U.S. 464, 467, 472-473

(1962); Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620,

627 (1944), and ary doubt as to the existence of a genuine issue

of material fact will be resolved against the movant. Adickes,

supra. This petitioner's well-pleaded allegations of perjury

and constitutional infirmities, being entirely unaddressed by

the affidavit in support of the Rule 56 disposition, left unre-

solved multiple genuine issues of material fact and law. Ac-

cordingly, entry of summary judgment was not “appropriate”

as required by the Rule and the Due Process Clause of the

Fourteenth Amendment.

This Court has determined that both liberty and property

are specifically protected by the Fourteenth Amendment

an 4

against any state deprivation which does not meet constitu-

tional standards of due process and that such protection may

not be avoided by the simple label that a State chooses to

fasten upon its conduct or its statute. Giaccio v. Pennsyl-

vania, 382 U.S. 399, 402 (1966).

Conclusion.

The City of Newburyport denied this petitioner the protec-

tions of the Due Process Clause of the Fourteenth Amendment

in the first instance by excluding him from full participation in

the hearing of professional miscorduct charges against him,

and again by notice of termination of his professional employ-

ment stating detailed reasons that in fact were founded in per-

jury. The Commonwealth of Massachusetts then denied him

due process for a third time by the erroneous application of

summary judgment based upon an affidavit citing a state civil

service statute wholly irrelevant to his invocations of the Due

Process Clause of the Fourteenth Amendment, foreclosing yet

again the opportunity he sought and still seeks to confront and

cross-examine “those whose words” deprived him of his pro-

fessional livelihood. Willner v. Committee on Character and

Fitness, supra, 373 U.S. at 103.

Accordingly, a writ of certiorari should be issued to the Su-

preme Judicial Court of Massachusetts and its judgment

should be reversed.

Respectfully submitted,

FRANCIS J. O’ROURKE,

75 Federal Street, Suite 600,

Boston, Massachusetts 02110.

(617) 542-0896

Of Counsel: Counsel for Petitioner.

BRICKLEY, SEARS & COLE,

75 Federal Street, Suite 600,

Boston, Massachusetts 02110.

(617) 542-0896

Appendix.

TABLE OF CONTENTS.

Essex Superior Court No. 6599

Docket entries

Complaint

Exhibit A

Exhibit B

Exhibit C

Exhibit D

Defendant’s answer to complaint

Motion to amend plaintiff’s complaint

Motion to amend defendant’s answer

Defendant’s motion for summary judgment

Affidavit in support of motion for summary judgment

Summary judgment

Supreme Judicial Court No. 1597

Docket entries

Judgment

Brief for plaintiff-appellant (designated portion)

Brief for defendant-appellee (designate ] portion)

General Laws, chapter 31

§ 20D

§ 43

§ 46A

General Laws, chapter 231A, § 1

Massachusetts Rules of Civil Procedure, Rule 56

COMMONWEALTH OF MASSACHUSETTS.

Essex, ss.

November

1977

November

Superior Court.

No. 6599

ROBERT W. MACE

BYRON J. MATTHEWS

Docket Entries.

1 Complaint

2 Piff’s. jury claim

3 Return of service

4 Deft’s. answer

5 Plff’s. waiver of jury claim, assented to

6 PIff’s motion for speedy trial

Motion #6 allowed. Case advanced to De-

cember jury-waived list. DeCuglielmo, J.

1978

January

5 7 PHP's. motion to amend complaint

8 PIE's suggestion of expiration of term of

deft. and motion to substitute successor as

party deft.

) Deft's, motion to amend answer as on file

Kebruary

6 10 Motion for summary judgment

1) Marking of affidavit on motion #10 for sup

port of motion

12 Affidavit of notice on motion #10 for Febru

ary 13, 1978

13 Motion #10 allowed; Banks, D.C.J.

13) Summary judgment for deft.; Banks,

D.C].

28 14 PHP's. notice of appeal —— parties notified

COMMONWEAL TIL OF MASSACHUSETTS.

Superior Court.

[Tithe omitted in printing. |

Complaint.

Now comes the plaintiff, by and through his attorneys, Ran-

dazzo and Randazzo, and represents as follows:

1. The plaintiff, a resident of the City of Newburyport, in

the County of Essex, and Commonwealth of Massachusetts,

was duly appointed a provisional police officer for the City of

Newburyport on December 5, 1974 and served continuously as

such until November 24, 1975, at which time he was ap

pointed a permanent full-time patrolman,

2. The defendant is the duly-elected mayor of the City of

Newburyport and the appointing authority for the Newbury

port Police Department.

3. That the plaintiff served continuously as a permanent

full-time patrolman from November 24, 1975 to April 13, 1976

when, by decision of the defendant contained in a letter dated

April 13, 1976, a copy of which is hereto attached and marked

“A”, the plaintiff was discharged on the grounds that he had

been found guilty by the defendant of mishandling and abus

ing a person in protective custody, of misconduct while on

duty as a police officer and of employing excessive force

against the person in protective custody,

4. That the incident out of which the charges against the

plaintiff arose occurred on March 7, 1976, at which time the

plaintiff had been assigned by his superior to investigate a

report that a person had assaulted members of his family and

had threatened the life of his wife with a knife.

5. That the plaintiff had no knowledge nor was he advised

officially or unofficially of any charges levied against him until

receipt by the plaintiff of a communication from the defend

ant dated April 1, 1976, a copy of which is hereto attached and

marked “B", alleging that the plaintiff employed excessive

force upon and was otherwise guilty of misconduct and

abusive to one Russell A. Janvrin, and giving notice to the

plaintiff of a hearing to be held by the defendant on April &,

1976.

6. That the communication dated April 1, 1976 and

marked exhibit “B” was insufficient as a matter of law to ade-

quately inform the plaintiff of the charges being levied against

him and did not afford him sufficient information on which to

prepare an adequate defense.

7. That the duly adopted Rules and Regulations of the

Police Department of the City of Newburyport, a copy of

which are hereto attached and marked “C", provide as

follows:

“CITY MARSHAL

“A. SUMMARY: The City Marshal is the chief admin-

istrative officer of the department and the final depart-

mental authority in all matters of policy, operations, and

discipline. He exercises all lawful powers of his office

and issues such lawful orders as are necessary to assure

the effective performance of the department.

“B. DUTIES AND RESPONSIBILITIES: It is: the

duty and responsibility of the City Marshal to:

“1. k. Initiate investigation into all cases of alleged or

apparent misconduct by department personnel.”

8. That the respondent, in violation of the Rules and

Regulations of the police department aforesaid, initiated an

investigation independent of the procedures prescribed, and,

without report or recommendation of the plaintiff's superiors,

discharged the plaintiff.

9%. That the plaintiff, even though serving as a permanent

full-time police officer during a probationary period, was a

duly-appointed police officer within the meaning of Section I,

A. DEFINITIONS, of the Rules and Regulations of the Police

Department. (See exhibit “C”.)

10. ‘That as a “duly appointed police officer”, the plaintiff

could not be discharged except for “just cause”, as provided for

in Section F. DISCIPLINARY ACTIONS, 3. Dismissal. (See

exhibit “C".)

11, That as a member of the police department, the plain

tiff was entitled to a written statement of the specific reason or

reasons for his dismissal, as provided in Section F. 3. (See ex

hibit “C".)

12. That under the provisions of Section F. 3. (see exhibit

“C"), and under the provisions of the Fourteenth Amendment

to the Constitution of the United States, affording each citizen

due process, the plaintiff was not given a full hearing, for the

reason that the plaintiff was excluded from the hearing room

on the order of the defendant while witnesses were examined.

13. That the defendant did not give to the plaintiff, as a

duly-appointed member of the police department, written

notice of his decision within two (2) days of the completion of

the hearing, as required by Section F. 3. (see exhibit “C"), the

hearing before the defendant having been completed on April

8, 1976 and notice given to the plaintiffon April 13, 1976. (See

exhibits “A” and “B".)

14. That the defendant did not state to the plaintiff, as a

duly-appointed member of the police department, fully and

specifically the reasons for the plaintiff's dismissal, as provided

by Section F. 3. (See exhibit “C”.)

15. That the defendant did not give written notice to the

plaintiff as a permanent full-time police officer, who had not

completed nine (9) months’ service, a detailed statement of the

particulars wherein the conduct or capacity or character or

quality of his work was not satisfactory, as required by

General Laws (Ter. Ed.), Chapter 31, Section 20D, as

amended, a copy of which is hereto attached and marked ex-

hibit “D”.

16. That the defendant did not, at the same time that writ-

ten notice of dismissal was given to the plaintiff, send a copy of

said notice to the Administrator, as required by G.L. (Ter.

Ed.), Chapter 31, Section 20D, as amended (see exhibit “D”),

in default of which the plaintiff became a permanent on

August 24, 1976 on the expiration of nine (9) months from the

date of his certification on November 24, 1975. (See exhibit

“D”.)

17. That the decision of the defendant in dismissing the

plaintiff was based on perjured testimony given at the hearing

before the defendant on April 8, 1976 and procured by Russell

A. Janvrin by coercion, intimidation and threat of bodily in-

jury practiced upon the witnesses.

18. That the evidence which formed the basis of the find-

ings, conclusions and action of the defendant in dismissing the

plaintiff were, as a matter of law, insufficient to warrant such

findings, conclusions and action.

19. That the dismissal of the plaintiff was arbitrary,

capricious, unjust, unsupported by substantial evidence, and

in violation of rights guaranteed to the plaintiff, under the due

process provisions of the Constitution of the Commonwealth

of Massachusetts of the Constitution of the United States.

20. That the plaintiff has no other or adequate remedy at

law.

WHEREFORE, your plaintiff prays:

1. That the defendant be ordered to certify to this Honor-

able Court the records of the proceedings, including reports of

any investigation conducted by any officer of the Newbury-

port Police Department, whether conducted at the order of

the defendant, or pursuant to the provisions of the Rules and

Regulations of the Police Department, and including a tran-

script of the evidence heard by the defendant, to the end that

any errors of law may be determined and corrected by this

Court, and to enable the Court to determine whether the find-

ing and decision of the defendant were warranted as a matter

of law upon the evidence before him.

2. That the finding and decision of the defendant may be

quashed and reversed.

AND IN THE ALTERNATIVE:

3. That the defendant be ordered to reinstate the plaintiff

as a full-time permanent police officer of the City of Newbury-

port.

4. That the defendant be ordered to sign vouchers or other

necessary papers authorizing the City Treasurer to pay to the

plaintiff any compensation to which he may be legally en-

titled.

5. For such other and further relief as to the Court seems

meet and proper.

By his Attorneys,

/s) ANTHONY J. RANDAZZO

Randazzo and Randazzo

11 Lawrence St.

Lawrence, MA 01840

Tel. (617) 683-9595

October 13, 1976

Exuipir A,

City of Newburyport

Massachusetts

Byron J. Matthews

Mayor

April 13, 1976

RUSSELL A. JANVRIN, Complainant

vs:

DAVID FOLEY, ROBERT MACE, JOHN BLONDA

AND JOHN J. LEARY, Respondents

Decision.

This matter arose as the result of a written complaint dated

March 9, 1976, signed under oath by Russell A. Janvrin of 48

Park Circle, Newburyport, Massachusetts. Mr. Janvrin made

certain allegations and charges against Respondents Foley,

Mace, Blonda and Leary, all police officers of the City of

Newburyport. Accordingly, a full civil service hearing was

held by me as appointing authority for the City of Newbury-

port on April 8, 1976, pursuant to Chapter 31, section 43 of

the General Laws of the Commonwealth of Massachusetts.

Officers Foley, Blonda and Leary are permanent police of-

ficers, and have completed the nine month probationary

period prescribed by Civil Service Regulations. Officer Mace

was appointed a permanent police officer on November 24,

1975, and, therefore, is still serving his nine month proba-

tionary period,

All Respondents received at least three days notice of the

hearing, and copies of the Civil Service law, where applicable.

By request of the parties, the hearings were closed to the

public. :

Complainant Janvrin was represented at the hearing by At-

torney Harvey Beit of Newburyport. All respondents were

represented at the hearing by Attorney David Downes of

Boston. Each party was given the opportunity to testify, pre-

sent exhibits, and cross-examine witnesses. The hearings were

tape recorded, with the assent of the parties. Also in attend-

ance at the hearing was Robert Jones, City Marshall, James

Lagoulis, City Solicitor, and Officer Timothy Clancy, Police

Union Steward.

In addition to the Complainant and the Respondents, other

witnesses who testified at the hearing were:

Mrs. Russell Janvrin, wife of the Complainant; Ronald

Nath, M.D.; Robert Hossack, Anna Jaques Hospital nurse,

Mrs. Mary Malcolm, 46 Park Circle, Newburyport; and Fran-

cis Clark, Police Matron.

All witnesses were duly sworn, and testified under oath.

The Complainant presented as Exhibits photographs which

showed bruises on his face and legs; a bill and physician's

report from Anna Jaques Hospital; and a dented metal ciga-

rette lighter. The Respondents introduced as Exhibits an in-

vestigation report and a copy of the Police Department Policies

and Procedures on the use of firearms.

10a

After listening to the parties and witnesses, and examining

their statements and exhibits, and after due deliberation, I

find as follows:

ROBERT W. MACE:

The charges against Officer Mace were that on March 7,

1976, while in the performance of his official duties as a Police

Officer of the City of Newburyport, he used excessive force,

was guilty of misconduct, and was abusive to Russell A. Jan-

vrin, a person under protective custody at the Newburyport

Police Station.

On the charges of using excessive force and being abusive to

Mr. Janvrin, I find that Officer Mace did mishandle the Com-

plainant while he was being placed under protective custody

at the Newburyport Police Station. I further find that Officer

Mace’s behavior, under all of the circumstances of the situa-

tion in question, constituted misconduct for a Police Officer

while on duty. Therefore, I find Officer Mace guilty on all

charges, and order that he be permanently removed from the

Police Force of the City of Newburyport, effective immediate-

ly. I further order Officer Mace to turn in all of his depart-

mental equipment, including his service revolver and badge,

to the City Marshall forthwith.

‘s) BYRON J. MATTHEWS,

Mayor

lla

Exuiait B.

Gity of Newburyport

Massachusetts

Byron J. Matthews

Mayor

April 1, 1976

Mr. Robert W. Mace (probationary) |

1 Park Circle

Newburyport, Massachusetts 01950

Dear Mr. Mace:

You are hereby notified that a hearing will be held:

Time: 10:30 A.M.

Date: Thursday, April 8, 1976

Place: Office of the Mayor, City Hall, Newburyport,

Mass.

The specific reason for this hearing is to investigate charges

that on March 7, 1976, while in the performance of your of-

ficial duties as a Police Officer of the City of Newburyport,

12a

you were guilty of using excessive force, and were otherwise

guilty of misconduct and were abusive to one Russell A. Jan-

vrin of 48 Park Circle, Newburyport, a person in protective

custody.

You were appointed a permanent police on November 24,

1975. Therefore, under Civil Service regulations you are still

on a probationary period and cannot be accorded the benefits

of Chapter 31, Section 43 of the General Laws. However, as a

courtesy to you I want to give you every opportunity to present

your side of this matter.

You shall be allowed to answer the charges preferred against

you either personally, or by counsel.

Very truly yours,

/s/) BYRON J. MATTHEWS, Mayor,

Appointing Authority, City of Newburyport

EXuHIsiT C.

CITY MARSHAL

A. SUMMARY

The City Marshal is the chief administrative officer of the

department and the final departmental authority in all mat-

ters of policy, operations, and discipline. He exercises all

lawful powers of his office and issues such lawful orders as are

necessary to assure the effective performance of the depart-

ment.

Through the City Marshal the department is responsible for

the enforcement of all laws and by-laws coming within its

13a

legal jurisdiction. The City Marshal is responsible for pian-

ning, directing, coordinating, controlling and staffing all ac-

tivities of the department, for its continued and efficient

operation, for the enforcement of rules and regulations within

the department, for the completion and forwarding of such

reports as may be required by competent authority, and for

the department’s relations with local citizens, the local govern-

ment and other related agencies.

B. DUTIES AND RESPONSIBILITES

It is the duty and responsibility of the City Marshal to:

1. Supervision

a. Observe and enforce all laws which the department or its

officers have the authority to execute.

b. Organize, direct, and control all resources of the depart-

ment for the most efficient discharge of his duty to preserve the

peace, protect persons and property and obey and enforce all

ordinances of the community and all criminal laws of the

Commonwealth of Massachusetts and the United States of

America.

c. Develop the organizational structure of the department

in accordance with professional standards.

d. Establish a routine of daily duties to be performed by of-

ficers as designated by him and designate an officer to serve as

Commanding Officer in his absence.

e. Assign, detail or transfer any member or employee of the

department to or from any unit or assignment whenever he

shall deem such action to be in the best interest of the efficien-

cy, discipline or morale of the department.

f. Cause an adequate and progressive program of training

to be organized and conducted for members and employees of

the department.

l4a

g. Ensure that all members have available to them copies of

the department's rules, regulations, and policies.

h. Promulgate all general and special orders of the depart-

ment and issue on his own authority orders, written or oral,

not inconsistent with his powers, duties and responsibilities.

i. Inspect and be responsible for the appearance of mem-

bers of the department.

j. Plan and execute police programs designed to prevent

and repress crime, to apprehend and prosecute offenders, to

recover property, and to regulate non-criminal conduct. He

shall modify these programs to meet current trends as they are

referred to him by analyses of records and reports.

k. Initiate investigation into all cases of alleged or apparent

misconduct by department personnel.

1. At all times inform himself of the affairs of the depart-

ment and be assured that the duties and responsibilities of his

subordinates are being properly discharged.

m. Exercise general supervision and inspection of all public

places within the community and cause the laws and or-

dinances concerning them to be obeyed.

n. Develop or adopt new techniques to improve effective-

ness in the discharge of primary police obligations of the

department.

o. Enlist the suggestions of members and employees of the

department to ensure maximum relevance and acceptance of

all departmental rules, regulations, and policies and pro-

cedures.

p. Be responsible for the safekeeping of all criminal

evidence and any recovered or “found” property brought to

the station.

2. Reporting and Notification

a. Submit those reports required of him in such form and

detail as to clearly depict conditions and police action taken.

l5a

b. Submit an annual report which presents the problems,

services, and activities of the department.

c. Make an annual report to the State Department of Cor-

rection, indicating the number of arrests and their classifica-

tion.

SECTION I. RULES AND ADMINISTRATIVE

PROCEDURES

A. DEFINITIONS

Department The Police Department.

City Marshal City Marshal. The City Marshal is the

commanding officer of the department.

As the executive and administrative

head, he is responsible to the Mayor for

proper functioning and efficient

management of the department.

Supervisor Any rank above patrolman.

Officer-In-Charge | Commanding officer of a shift.

Senior Officer A member in any given rank with the

longest service in that rank.

Member Duly appointed police officer in the

department.

Employee Civilian employee of the department.

Manual Manual of Rules and Regulations of the

department.

Orders Commands or instructions, oral or writ-

ten, given by one member to another

member of lesser rank.

Police Incident An occurrence or incident suggesting or

requiring police action by members.

Shift Eight hour tour of duty, unless other-

wise ordered by the City Marshal.

l6a

F. DISCIPLINARY ACTIONS

Any member or employee violating his oath and trust by

committng an offense punishable under the laws or statutes of

the United States, the State of Massachusetts, or local or-

dinances or who violates any provisions of the Rules and

Regulations Manual or procedures of this police department,

or who disobeys any lawful order or who is deemed incompe-

tent to perform his duties is subject to appropriate disciplinary

or other official action as deemed necessary.

1. Letters of Warning — The City Marshal may issue letters

of warning for minor infractions of departmental rules and

regulations. All letters of warning will become a part of the

personal file of the individuals involved.

2. Suspension — The Mayor, the City Marshal, or their

subordinates to whom such authority has been delegated may

suspend an officer up to five days for just cause. The provi-

sions of the Massachusetts Civil Service Law (Chapter 31 Sec-

tion 43e) govern this situation. An officer suspended under

this section must, within twenty-four hours after the suspen-

sion receive a written notice stating the specific reason for the

suspension and informing him of his right to a hearing before

the Mayor. Such hearing must be requested in writing within

forty-eight hours of the suspension, and must be held within

five days of the receipt of such request (always excluding

weekends and holidays). There is also an appeal to the Civil

Service Commission from the Mayor’s determination, and

finally to the state’s courts.

3. Dismissal — A member or employee of the department

may be discharged by the Mayor for just cause. Again the

Massachusetts Civil Service Law (Chapter 31 Section 43e)

governs the procedure of dismissal. Before being dismissed,

an officer or employee must be given a written statement of

the specific reason or reasons, together with a copy of sections

17a

forty-three, forty-four, and forty-six A. He must be given a

full hearing before the Mayor, of which he must be given three

days’ written notice. Within two days after completion of the

hearing, the Mayor must give the officer or employee a written

notice of his decision, stating fully and specifically the reasons

therefor. Anyone dismissed has a right to review of the case by

the Civil Service Commission if he so requests within five days

of receiving written notice from the Mayor. The determina-

tion of the Commission may likewise be reviewed by the state’s

courts.

Exuisit D.

§ 20D. [Probationary Period.]

Except as otherwise expressly provided in this chapter or in

section thirty-six of chapter forty-eight, no person shall be

regarded as holding office or employment on a full-time basis

until he has been appointed to a permanent, full-time position

in the official or labor service and has actually performed the

duties of the office or position thereof for a probationary

period of six months; provided, however, in the case of a per-

son appointed as a regular police officer in any city or town,

the metropolitan district police force, or the Massachusetts

Bay Transportation Authority police force or as a capitol

police officer, the probationary period shall be nine months.

There shall be no increase in pay or change in the duties of any

such office or position during such a period without the ap-

proval of the director. If any such increase in pay or change in

duties is made during such a period without such approval, the

director may cancel and declare void the certification under '

which the appointment was made, and thereupon the employ-

ment of the person so appointed shall cease.

18a

If the conduct or capacity of a person serving a probationary

period under an appointment in the official service or labor

service, or the character or quality of the work performed by

him, is not satisfactory to the appointing authority, he may, at

any time after such person has served thirty days and prior to

the end of such probationary period, give such person a writ-

ten notice to that effect, stating in detail the particulars

wherein his conduct or capacity or the character or quality of

his work is not satisfactory, whereupon his service shall ter-

minate. The appointing authority shall at the same time send

a copy of such notice to the director. In default of such a

notice, the appointment of such person shall become perma-

nent upon the termination of such period; provided, however,

that the director, with the approval of the commission, may

establish procedures assuring the evaluation by appointing

authorities of the performance of police officers during such

probationary period.

COMMONWEALTH OF MASSACHUSETTS.

Superior Court.

[Title omitted in printing. }

Defendant’s Answer to Complaint.

1. The defendant admits the allegations contained in

paragraph (1) of the Complaint.

2. The defendant admits the allegations contained in

paragraph (2) of the Complaint.

19a

3. The defendant admits the allegations contained in para-

graph (3) of the Complaint. |

4. The defendant admits the allegations contained in para-

graph (4) of the Complaint.

5. The defendant has no knowledge of and therefore

neither admits nor denies the allegations contained in para-

graph (5) of the Complaint.

6. The defendant denies the allegations contained in para-

graph (6) of the Complaint and the defendant further asserts

that the plaintiff was accorded notice and a full hearing on the

charges brought against him even though the plaintiff was not

entitled to such.

7. The defendant admits the allegations contained in paia-

graph (7) of the Complaint.

8. The defendant denies the allegations contained in para-

graph (8) of the Complaint.

9. The defendant denies the allegations contained in para-

graph (9) of the Complaint.

10. The defendant denies the allegations contained in para-

graph (10) of the Complaint.

11. The defendant denies the allegation contained in para-

graph (11) of the Complaint, but the defendant asserts that the

plaintiff did receive a written statement of the specific reason

or reasons for his dismissal, despite his lack of entitlement

thereto.

12. The defendant denies the allegation contained in para-

graph (12) of the Complaint, and further answering the

defendant states that the plaintiff was given a full hearing at

which the plaintiff was present during any and all testimony

relating to him.

13. The defendant denies the allegation contained in para-

graph (13) of the Complaint.

14. The defendant denies the allegation contained in para-

graph (14) of the Complaint.

20a

15. The defendant denies the allegi:tion contained in para-

graph (15) of the Complaint.

16. The defendant denies the allegation contained in para-

graph (16) of the Complaint.

17. The defendant denies the allegation contained in para-

graph (17) of the Complaint.

18. The defendant denies the allegation contained in para-

graph (18) of the Complaint.

19. The defendant denies the allegation contained in para-

graph (19) of the Complaint.

20. The defendant denies the allegation contained in para-

graph (20) of the Complaint.

Respectfully submitted,

/s/ JAMES LAGOULIS,

City Solicitor, City of Newburyport.

2la

COMMONWEALTH OF MASSACHUSETTS.

Superior Court.

[Title omitted in printing. ]

Motion to Amend Plaintiff’s Complaint.

21. That the decision of the Defendant, Mayor of the City

of Newburyport was based on perjury committed by Russell A.

Janvrin.

By his Attorneys,

/s) ANTHONY J. RANDAZZO

Randazzo and Randazzo

11 Lawrence St.

Lawrence, MA 01840

Tel. (617) 683-9595

COMMONWEALTH OF MASSACHUSETTS.

Superior Court. |

[Title omitted in printing. ]

Motion to Amend Defendant’s Answer.

21. That the defendant denies the allegation contained in

paragraph (21) of the amended complaint.

Respectfully submitted,

/s/ RICHARD B. JONES,

City Solicitor, City of Newburyport.

22a

COMMONWEALTH OF MASSACHUSETTS.

Superior Court.

[Title omitted in printing. ]

Motion for Summary Judgment.

The defendant hereby moves the court to enter summary

judgment for the defendant in accordance with the provisions

of Rule 56(b) and (c) of the Rules of Civil Procedure, on the

ground that the pleadings and affidavits hereto attached and

marked Exhibit A show that there is no genuine issue of

material fact and the defendant is entitled to judgment as a

matter of law.

/s/ RICHARD B. JONES,

Attorney for Defendant

28 Green Street

Newburyport, Massachusetts

462-8365

Allowed (Banks, D.C.J.) February 13, 1978.

COMMONWEALTH OF MASSACHUSETTS.

Superior Court.

[Title omitted in printing. ]

Affidavit in Support of Motion for Summary Judgment.

I am Nolan R. Morris, Jr. and have personal knowledge of

the facts herein set forth.

23a

This affidavit is submitted in support of the plaintiff's mo-

tion for summary judgment herein, for the purpose of showing

that there is in this action no genuine issue as to any material

fact, and that the plaintiff is entitled to judgment as a matter

of law.

Police Officer Robert W. Mace was terminated on April 13,

1976 from his employment with the City of Newburyport,

Police Department. He was at that time serving in his proba-

tionary period under the Civil Service Regulations governed

by MGL, Ch. 31, sec. 20 D.

Signed under the pains and penalties of perjury on February

3, 1978.

/s/ NOLAN R. MORRIS, JR.,

Auditor, City of Newburyport.

COMMONWEALTH OF MASSACHUSETTS.

Superior Court.

[Title omitted in printing. ]

Summary Judgment.

(Mass. R. Civ. P. 56)

This action came to be heard before the court, BANKS,

D.C.J. presiding, upon the motion of the defendant for sum-

mary judgment pursuant to Mass. R. Civ. P. 56, the parties

having been heard, the Court finds that there is no genuine

issue as to material fact, and that the defendant is entitled to

24a

a judgment as a matter of law, it is hereby ORDERED that:

the complaint of plaintiff be and hereby is dismissed against

defendant with costs.

Date: February 13, 1978 /s/ WILLIAM J. GREENLER, JR.,

Assistant Clerk.

COMMONWEALTH OF MASSACHUSETTS.

Supreme Judicial Court

FOR THE COMMONWEALTH.

No. 1597

ROBERT W. MACE

BYRON W. MATTHEWS.

Docket Entries.

9/21/78 Transferred sua sponte from the Appeals Court

Transferred with case:

Appendix filed by Anthony J. Randazzo of

Randazzo and Randazzo

Brief for the Appellant by Anthony J. Ran-

dazzo of Randazzo and Randazzo

Brief for the Appellee by Richard B. Jones

Entered September 27, 1978

Argued November 14, 1978 (CJ, Q, W, L)

November 24, 1978. Judgment affirmed.

Rescript November 24, 1978

25a

Notice sent to counsel.

December 4, 1978. Plaintiff’s Petition for Rehearing No. 140

filed.

December 15, 1978. Petition for Rehearing denied.

COMMONWEALTH OF MASSACHUSETTS.

Supreme Judicial Court

FOR THE COMMONWEALTH.

At Boston, November 24, 1978.

IN THE CASE No. SJC-1597

ROBERT W. MACE

vs.

MAYOR OF NEWBURYPORT

pending in the Superior Court for the County of Essex

No. 6599

Orvenrep, that the following entry be made in the docket;

viz., — Judgment affirmed.

By THE Court,

/s/ FREDERICK J. QUINLAN,

_ Clerk.

26a

CoMMONWEALTH OF MassaCHUSETTS

The Appeals Court

Essex County

No. A. C. 78-263

ROBERT W. MACE,

PLAINTIFF, APPELLANT,

Vv.

BYRON J. MATTHEWS,

DEFENDANT, APPELLEE.

ON APPEAL FROM A JUDGMENT AND ORDER

OF THE SUPERIOR COURT IN AND FOR

THE COUNTY OF ESSEX

BRIEF FOR APPELLANT |

Antuony J. Ranpazzo

Ranpvazzo & Ranpazzo

11 Lawrence Street :

Lawrence, Massachusetts 01840

Tel. (617) 683-9595

Attorneys for Appellant

27a

Aa? 2

(d) That the plaintiff did not give to

the defendant written notice of his decision

within two days of the completion of the

hearing, as required by the Rules and Regula-

tions, the hearing having been completed

April 8, 1976 and notice given to the plain-

tiff by letter dated April 13, 1976. (App. 5)

(3) The plaintiff is entitled to notice,

hearing and judicial review of his discharge,

where the discharge was predicated on conduct

which attributed to the plaintiff the crime

of assault and battery by reason of employment

of excessive force against a person in pro-

tective custody.

Ryan vs. Marren

216 Mass. 556

104 N.E. 353, 354 (1914)

It is submitted that if this accusation

were permitted to go unchallenged, it might

seriously damage the reputation of the plain-

tiff and seriously impair his right to secure

other employment, more especially in the law

enforcement field.

Stetson vs. Board of Selectmen of

Carlisle,Mass.Adv.Sh. (1976) 502,

343 N.E. 2d 382, 386 (1976)

: 28a

Ee]

"When a person's good name, reputation,

honor or integrity is at stake because of what

the government is doing to him, notice and an

opportunity to be heard are essential."

City Regents of State Colleges

vs. Roth, 408 U.S. 654,

33 L. Ed. 2d 548, 588 (1972)

(4) The due process requirements of

notice and hearing would apply to the hearing

voluntarily afforded by the defendant to the

plaintiff, even where these rights contained

in Chapter 31, Sections 43 and 46 were fore-

closed to him by the provisions of Section

20D.

The Supreme Judicial Court, while reject-

ing attacks on the constitutionality of

Chapter 31 for failure to provide notice,

hearing, and judicial review under certain

circumstances, has accepted for determination

on the issue of due process, the sufficiency

of any hearing voluntarily afforded.

Canney vs. Municipal Court of the

City of Boston, 368 Mass. 648,

335 N.E. 20 651, 655 (1977)

29a

#2)

Therefore, the plaintiff's allegation. that

he was excluded from the hearing room on order

of the defendant while witnesses were being

examined (App. 5) constituted denial of due

process by reason of lack of opportunity of

confrontation and cross examination.

Willner vs. Committee on Character

and Fitness

373 United States 96, 107 and 108

(1963)

Further, the decision of the defendant,

based on the perjured testimony given by the

complainant, Russell A. Janvrin, or procured

by him from other witnesses by coercion,

intimidation or threats of violence (App. 5),

would not be a decision supported by sub-

stantial evidence, which a reasonable mind

might accept as adequate to support the

decision,

Interstate Busses Corporation

vs. U. S.

259 Fed. Supp. 577, 579 (1966)

and the hearing out of which the decision

arose would be lacking in the element of

fair play, essential to due process.

Burns vs. Lovett

202 Fed. 2d 335

30a

COMMONWEALTH OF MASSACHUSETTS.

APPEALS COURT.

No. 78-263.

Essex County.

ROBERT W. MACE,

PLAINTIFF-APPELLANT,

BYRON J. MATTHEWS,

DEFENDANT-APPELLEE.

ON APPEAL FROM A JUDGMENT AND ORDER

OF THE SUPERIOR COURT.

Brief for the Defendant-Appellee.

RIcHARD B. Jones,

City Solicitor,

28 Green Street,

Newburyport, Massachusetts 01950.

(617) 462-8365

3la

that during the probationary period an appointee may

be discharged without notice and opportunity to be

heard.

The employee’s claim of an incomplete and invalid

notice is without merit as it was offered to him in

the spirit of justice and fair play and was not stat-

utorily mandated.

The employee claims that the hearing which was

offered to him as a courtesy was inadequate. It was

more than adequate due to the fact that counsel for

the employee was present; he had an opportunity to

speak and was heard; and the appointing authority

was there with his counsel present.

Furthermore, there were tapes made for the record

of all the proceedings and testimony at this hearing.

Reasons for termination given by an appointing au-

thority in a notice must be taken as final on the facts.

In Scott v. Manager State Airport, Hanscom Field,

336 Mass. 372, 145 N.E. 2d 706 (1957), the court stated

that reasons for termination given by an appointing

authority in a notice must be taken as final on the

facts. All the appointing authority must find is that

the conduct or capacity of the appointee, or the char-

acter or quality of the work, is not satisfactory. The

employee in his probationary period has no right to

challenge or question the appointing authority’s judg-

ment or reasons. Vigoda v. Barton, 338 Mass. 302,

155 N.E. 2d 409 (1959) (A. 5-6).

Constitutional law at present distinguishes between

an infringement of a right, where one must have due

process, and infringement of a privilege, where one

is not protected under due process.

The most recent controlling case is Bishop v. Wood,

426 U.S. 341 (1976), in which the plaintiff was a po-

32a

[5]

lice officer bringing a 42 U.S.C. § 1983 action under

the Civil Rights Act. He sought to be reinstated as

an officer and collect his back pay under a property

and liberty interest theory. The Supreme Court held

the claimed right or interest must be created under

state law and that it would defer to state statutes and

case law.

In G.L. ¢. 31, §§ 20D and 43, there is a clear dis-

tinction between the rights afforded an employee who

is classified as permanent and one who is classified

probationary. The employee who is classified as pro-

bationary is not entitled to notice and a hearing; there-

fore, under Bishop v. Wood, supra, the Constitutional

protections of due process do not require notice and

a hearing.

The employee cites Canney v. Municipal Court of

the City of Boston, Mass. Adv. Sh. (1975) 2878, 335

N.E. 2d 651 in support of the proposition that the

sufficiency of a hearing voluntarily afforded an em-

ployee may be reviewed under due process guidelines.

The above-mentioned case relates to the termina-

tion of an employee who was not in his probationary

period. It does not apply to a probational employee,

such as the plaintiff. Due process is a protean process

which imports different procedures in different situa-

tions or circumstances. The very nature of due process

negates any concept of inflexible procedures univer-

sally applied to every imaginable situation. Haverhill

Manor, Inc. v. Committee of Public Welfare, Mass. Adv.

Sh. (1975) 1813, 330 N.E. 2d 180, 187.

The employee relies upon Stetson v. Board of Se-

lectmen of Carlisle, Mass. Adv. Sh. (1976) 502, 343

N.E. 2d 382, 386 to support his argument that the

reputation of the plaintiff was seriously damaged and

33a

General Laws, Chapter 31.

§ 20D. [Probationary Period.]

Except as otherwise expressly provided in this chapter or in

section thirty-six of chapter forty-eight, no person shall be

regarded as holding office or employment on a full-time basis

until he has been appointed to a permanent, full-time position

in the official or labor service and has actually performed the

duties of the office or position thereof for a probationary

period of six months; provided, however, in the case of a per-

son appointed as a regular police officer in any city or town,

the metropolitan district police force, or the Massachusetts

Bay Transportation Authority police force or as a capitol

police officer, the probationary period shall be nine months.

There shall be no increase in pay or change in the duties of any

such office or position during such a period without the ap-

proval of the administrator. If any such increase in pay or

change in duties is made during such a period without such ap-

proval, the administrator may cancel and declare void the cer-

tification under which the appointment was made, and there-

upon the employment of the person so appointed shall cease.