Petition for Writ of Certiorari — Silverio v. Municipal Court of Boston

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SUPREME COURT. U. & SUC A) ae

: ; JOHAR F. Une, OLB |

Supreme Court of the United States. ~[

fess Term, 1969. — o

4G 49 | |

| - SALVATO a. - SILVERIO,

ss i

. v.

MUNICIPAL COURT OF THE ITY OF BOSTON —

v AND CITY OF MEDFORD, :

» Respondents.

PETITION FOR A WRIT OF CERTIORARI.»

————

Davw Berman,

JouN F. ZaAMPARELLI, ~ me

100 Salem Street, |

ee ae ~~ Medford, Massachusetts 02155,

Attorneys for the Petitioner.

€

ADDISON C. GETCHELL & SON, INC., LAW PRINTERS, BOSTON.

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. Table of Contents.

Citations to opinions below

Jurisdiction . | ee

Questions presented _ ) :

Statutes involved |

Statement. | we

Reasons for granting the writ

I. Petitioner‘could not be discharged for refusing

- to answer questions of his superior when, by an-

swering.these questions, petitioner had good

cause to believe he would subject himself to

punishment for contempt of Grand Jury pro-

ceedings. (Applicable to question No, 1.)

‘ II. The Supreme Judicial Court erred in holding .

that petitioner’s refusal to answer might not be

justified on the ground that his answers might

- _ have tended to incriminate him. (Applicable to °

questions Nos. 2 and 3.)

III. The Supreme Judicial Court erred in refusing

to rule that petitioner’s failure to answer ques-

tions pertaining to his knowledge of or associ-

ation with Main persons is not. a constitu-

tional ground for his removal under -the First,

Fourth and Fourteenth Amendments of the

Constitution of the United States. (Applicable

5 / .

to question No. 4.) -

IV.: Petitioner could “iit be discharged for his °

alleged violations of sections 16, 92 and 93 of -

_chapter III of the Rules and Regulations of the °

Police Department of the City of Medford be-

cause: petitioner’s conduct was not within the

wow ns =

ae TABLE OF AUTHORITIES CITED

scope of these Regulations. (Applicable to ques-

tion No. 5.) | .

Conclusion

Appendix A

Appendix B

Appendix C

Appendix D

Table of Authorities Cited.

CasEs.

Arlington Glass Co. v. Pittsburgh Plate Glass Co.,

24 F.R.D. 50 (N.D. IIL.) . |

Arsenault v. Commonwealth of Massachusetts, 393

. § US.5 5

Baggett v. Bullitt, 377 U.S. 360

Barenblatt v. United States, 360 U.S. 109- idinacit})

City Manager of Medford v. State Labor Relations |

Commission, 353 Mass. 519, 233 N.E. 2d 310 (1968)

Civitarese, petitioner, 353 Mass. 310, 231 N.E. 2d 360

_ (1967)

Clooney v. Civil Service Commission, 349 Mass. 589, —

211 N.E. 2d 230 (1965)

Cole v. Arkansas, 333 U.S..196 —

Commonwealth v. Benoit, 347 Mass. i, — N.E. 2d

228 (1964) :

Commonwealth v. Chmielinski, 246 Mass 55, 140

' -N.E. 258 (1923)

Ceniactwasieh v. MeNary, 246 Mass. “46, 140 N.E.

255 (1923)

12n.

17n.

11,12

11, 12

~ TABLE OF AUTHORITIES*GITED lili

Cramp v. Board of. Public Instruction of Orange

County, 368.U.S. 278 om. ; 20.

“Epperson v. Arkansas, 393 U.S.,97 : ee

__ Parmington River Water Power Co. v. County Com- pao

missioners, 112 Mass. 206 (1873) 7 6n.

First “Agricultural N ational Bank of Berkshire eos

County v: : State Tax Commission, 392 U.S. 339. on.

Gardner v. Broderick, 392 U.S. 273 13, 14, 16n., 17n.

Garrity v. New J ersey, 385 U.S. 493. Seer * 13, 17n.

Goodman v. United States, 108 F. Jd 516 |

(C.C.A. 9, 1939) ; >. i

Griswold v. Connecticut, 381 v. S. 479 | 18

Grunewald v. United States, 353 U.S.:391 16°

~Huntoon v. Quincy; 349 Mass. 9, 206 N.E. 2d 63 (1965) 190,

Keenan, petitioner, 310 Mass. 166, 37 N.E. 2d 516 (1941) dn.

Konigsberg v. State Se ee 353 U.S. 252 18

Lapenas v. Zoning Botrd of Appeals of Brockton,

352 Mass. 530, 226 N.E. 2d 361 (1966 _ . ~— 20

Massachusetts Feather Co. v. Aldermen of Chelsea,

331 Mass. 527, 120 N.E. 2d°776 (1954) ee

Murphy v. Waterfront ‘Commission of New York

Harbor, 378.U.S. 52 “11, 13

Nason v. See rer State Hos- | |

pital, 353 Mass. 604, 233 N.E. 2d 908 (1968) Sn.

National Association for the Advancement of Col-

ored People v. Alabama ex. rel. Patterson, 357 U.S.

449 _ ; | 12,18

National Association for the Advancement of Colored

People v. Button, 371 U.S. 415 : -

«<

~~ 4

iv TABLE OF AUTHORITIES CITED ;

_ New Hampshire Fire Insurance Co. v. Healey, 151 \.

Mass. 537, 24 N.E. 913 (1890) 11, 12

Raley v. Ohio, 360 U.S. 423: es 13°

'. Rea! Properties, Ine. v. Board of Appeal of Boston,

311 Mass. 430, 42 N.E. 2d 499 (1942) ’ 6n1.

Real Properties, Inc. v. Board of Appeal of Boston,

319 Mass. 180, 65 N.E. 2d 199 (1946) 6

Ross v. Crane, 291 Mass. 28, 195 N.B. 884 (1935) 17m.

+ State v. Brewster, 70 Vt. 341 12n.

S _ State v. Fassett, 16 Conn. 457. : } 12n.

Stevens v. Marks, 383 U.S. 234 is 13

Sweezy v. New Hampshire, 354 U.S. | 5

Thompson v. Louisville, 362 U.S.199. 3 21

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

sioner of Sanitation of the City of New York, 392.

U.S. 28 -. 16n.

Western Union Telegraph Co. v. Pennsylyania, 368 .

US. 71 13

Whitney v. Judges of. District- Court of Northern

Berkshire, 271 Mass. 448, 171 N.E. 648 (1930) ae

- Widener v. Croft, 184 So, 2d 444. (Fla. App.) >; a

STATUTEs.

- U.S. Constitution

Bill of Rights me 8

First Amendment me 2,3, 9, 10, 17, 18 -

Fourth Amendment ~~ | ~ 317,18

“Fifth Amendment 98,715

Fourteenth Amendment: 2, 3, 8, 13, 17, 18

98 U.S.C. 1257 (3) ie J

TABLE OF AUTHORITIES CITED _ v

Massachusetts General Laws

— -¢. 81, §§ 43(a), 43 (b),45 © fe 3,4

ce. 45 . , 4.

ce. 211, § 6 ; . : "3,6

—@. 213,§1A Mga on ——

: c- 249, §.4 : | e | c 3, 5; 6 .

-MiscELLanzovs. if,

Mottla, Civil Prattice, vol. 9 (Mass, Practice Series),

§33, p. 33 a ae a

New York City Charter, section 1123, p. 75; 3n. 17n.

' -Rules and. Regulations of the Police Department of

the City of Medford, seis III, §§ 16, 92, 93

3; 8, 9, 18, 19, 20

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\ € oe ; washes 1969.

No. > | XxX

SALVATO J. SILVERIO,

Petitioner, —

MUNICIPAL COURT OF THE CITY OF BOSTON

AND CITY OF MEDFORD,

Respondents,

PETITION FOR WRIT OF CERTIORARI.

Salvato J. Silverio prays that a writ of certiorari issue

to review a judgment of the Supreme Judicial Court of

Massachusetts. ;

Citations to Opinions Below.

‘The opinion ‘of the Supreme Judicial Court, reported at,

1969 Mass. Adv. Sh. 691 and 247 N.f. 2d 379, is printed in

Appendix A hereto. ‘The: opinion was originally dated Afril

10, 1969, but, after request for a was modified: on

April 18, 1969.

° &

Jurisdiction. ¥

The jurisdiction of this Court is invoked under 28 U.S.C.

*1257 (3). See Garrity v. New Jersey, 385 U.S. 493. The

judgment of the Supreme Judicial Court was entered on

April 10, 1969, and rehearing was denied on April 18, 1969.

Questions Presented. |

1.. Does the Fourteenth Amendment forbid a city from

discharging a police officer for refusing to answer questions

_ relating to his testimony before a grand jury where his

- refusal was based on the advice of an attorney who reason-

ably believed that the ofg@r would subject himself to con-

tempt proceedings by answering such questions? |

2. Do the Fifth and Fourteenth Amendments forbid a

city from discharging a police officer for refusing to tell

his superior whether he had claimed his -constitutional

privilege against self-incrimination in a grand jury pro-

ceeding?

- . 8. Do the Fifth and Fourteenth’ Amendments forbid a

city from discharging a police officer for claiming his con-

’ gtitutional privilege against self-incrimination in refusing

to answer questions about the extent of his associations ~

with certain persons, his knowledge of their ‘‘criminal rec-

ord’’ and his conduct before a grarfd jury? *°

. 4. Can a city discharge a police officer for claiming his

First Amendment rights in refusing to tell his superior .

whether he knew or associated with certain persons, the.

extent of his association and his knowledge, if any, of their

_ eriminal records?

5. Does: the Fourteenth Amendment forbid a city from

discharging a police officer on the grounds that his conduct

violated regulations that clearly fail to include such con-

duct within their scope?

e' 3 oid

_ . Statutes Involved. \

The First, Fourth, Fifth and Fourteenth (section 1, only),

Amendments to the Constitution of the United Sinton: sec-

tions 43 (a), 43 (b) and 45. of chapter 31, section 6 of

chapier 211, and section 4 of chapter 249 of the General

Laws of the Commonwealth of Massachusetts; and sections

16, 92 and 93 of chapter III of the Rules and Regulations -

_ of the Police Deparfment of the City of Medford are

printed in Appendix B. 7

. Statement. .

° S *

At the outset we wish to makgane point clear. etitioner jg Be

has never been convicted of or even indicted for any crime

_ (R. 237). On March 30, 1965, when petitioner was dis-

” charged as a police officer, he had been a member of the

_ Medford’ police force for over sixteen years (R. 5) and, in

the words of one of his superiors, a ‘‘model police officer.’?

When he testified before a grand jury in. Mareh of 1965,

_ he may or may not have claimed his privilege against se]f-

incrimination ; no record of any such claim of privilege ap-

pears in the record and whether he ¢laimed it or not would

be immaterial to these proceedings, Petitioner was dis-

charged only for refusing, on the basis of ‘certain constitu-

tional and statutory privileges and duties, to answer ques-

tions propounded by his superior (A, 22).

The Supreme Judicial Court upheld this discharge, but

to see how the case, reached that court requires at least

_an outline of Massachusetts procedures for review in eivil

“service cases. On March 22, 1965, the City Manager of

1 The letter ‘‘R”’ followed ty a number is a reference to pages in

the printed record in the Supreme Judicial Court. The letters

“*A,’” “B,”? “C” and ‘*D” followed by numbers refer to ap-

pendices to this ‘Petition. \

\ . ba

Medford, as chief administrative officer of the city (see

City Manager of Medford v. State Labor Relations Com-

mission, 353 Mass. 519, 521, fn. 3, 233 N.E. 2d 310 (1968) )

and appointing authority within the purview of Mass. G.L.

ce. 31, § 43, notified the petitioner to appear on March 26,

1965, at a hearing on whether he should be ‘‘discharsed,

removed or suspended from office’ (R. 15). The City Man-

ager noted in his letter that he was acting in ‘‘accordance

with the provisions of Chapter 31, Section 43(a) of the Gen-

. eral Laws of the Commonwealth of Massachusetts’’ (R. 15).

A hearing was held by the City Manager, and after this”)

hearing petitioner was discharged aubeedly ‘‘(for| just

cause’’ (R. 17). | ° ae 7s

Petitioner then exercised his right of appeal to the Civil

Service Commission of the Commonwealth of Massachu-

setts (R. 6). This appeal, which was timely (R. 6), was

ebrought pursuant to Mass, G.L. ¢. 31, § 43 (b). The Civil

_ Service Commission appointed a hearing officer (see Cloo-

ney v. Civil Service Commission, 349 Mass. 589, 211 N.E.

2d 230 (1965)) who, after hearing, recommended that the —

decision of the City Manager be ‘‘sustained’’ (R. 6, 23).

“On June 2, 1965, tf Service] Commission voted to

_ adopt the findings of fhe hearing officer and affirmed the

action’’ of the City Manager (R. 6, 24). :

" By statuge, Mass. G.L. ¢. 31, § 45, petitioner’s next step

was a timely (R. 6) appeal to the District Court in,the ©

district in which he lived or to the Municipal Court of the

City of Boston. He chose the latter, which .on October 25,

1967, heard his appeal on the law and on evidence and on

November 7, 1967, entered a decision affirming the deci-

ae the Civil Service Commission (R. 6).

Although the statute under which petitioner appealed

to the Municipal Court expressly states that decisions of

that court shall be ‘‘final,’’ the. Supreme Judicial Court of -

Massachusetts has long held that such finality does not pre- _

ita tng, “E

clude review by common law certiorari to correct errors of

law. Whitney v.\Judges of District Court of Northern

Berkshire, 271 Mass. 448, 458, 171 N.E. 648 (1930). Cer-

tiorari in Massachusetts issues out of the Supreme Judicial

Court for Suffolk County (Mass. G.L. ¢. 249, § 4), ‘‘popu-

larly referred to as the single justice sitting or session.’’®

-Mottla, Civil Practice, vo]. 9 (Mass. Practice Series), ¢ 33,

p. 33. | On November 15, 1967, petitioner filed for certiorari

in the' Supreme Judicial Court for Suffolk County (R. 1-4).

It is interesting to note that, given the circuitous route of

civil service review in Massachusetts, this was petitioner’s

first opportunity, more than three years after his dismissal,

. to raise constitutional issues in such manner that they woulé

be preserved on the record, and petitioner availed himself

of it by specifying these issues in his petition (R. 3-4).

2 The opinion of the Supreme-Judicial Court in the instant case

(A, 1) notes that the ‘‘petition for writ of certiorari brings before

us the issue whether there was error of law apparent on the record

including whether the evidence was sufficient in law’’ (A, 1).

3 Despite the statement in Keenan, petitioner, 310 Mass. 166,

180, 37 N.E. 2d 516 (1941) that ‘‘the Supreme Judicial Court is

primarily, though not exclusively, an appellate court,’’ the indi-

vidual justices of that court have unusually broad original juris-—

diction. It inéludes (inter slia) concurrent original jurisdiction

with«the Superior Court cf ‘‘all cases and matters of equity cog-

nizable under the general principles of equity jurisprudence’’

(Mass. G.L. ec. 214, § 1) and petitions for writs of mandamus, -

- habeas corpus, quo warranto and certiorari (Mass. G-L. ¢. 213,

§ 1A). The court in which the single justice sits is known as the —

~Suprenie Judicial Court for: the County of Suffolk, sometimes

ealled the ‘‘county court’’ to distinguish it from the full court,

which is primarily an appellate body. See Nason v. Superintend-

ent of Bridgewater State Hospital, 353 Mass. 604, 614, 233 N.E. 2d

908 (1968) ; Civitarese, petitioner, 353 Mass. 310, 312, 231 N.E. 2d

360 (1967). ‘This court has had regent occasion to reyiew two cases

Kn originating in the ‘‘county court.’’ First sath ting Pci ges

Bank of Berkshire County v. State Tax Commission, J.S. 339;

Arsenault v. Commonwealth of Massachusetts, 393 U.S. 5. —

I? _—

” aie

’ Certiorari in Massachusetts is customarily heard on the

petition and a return.‘ In the instant case, after expending

considerable effort, as the docket éntries will show, to ob-

tain a proper return, petitioner entered into a statement

of agreed facts (se Massachusetts Feather Co. v. Alder-

men of Chelsea, 331 Mass. 527, 528, 120 N.E. 2d.776 (1954) )

with the respondent and the City of Medford (R. 5), which’~

“ had been allowed to intervene in the proceedings. Mass.

G.L. ¢. 249, § 4. Upon the petition, this stipulation and the

return,” the single justice reported the case without deci,

sion to the full bench of the Supreme Judicial Court (R. 1).

Mass. G.L. c. 211, § 6. See Real. Properties, Inc. v. Board

of Appeal of Boston, 319% Mass. 180, 181, 65 N.E. 2d 199

(1946). : ei,

The route-which this case took to the Supreme Judicial .

Court having been roughly mapped out, we may now state

_ the pertinent facts. Some time shortly before March 16,

1965, petitioner testified before a grand jury (R. 11, 12).-

On that date he received a letter from the acting Chief of

Police’ of the City of Medford to réport to his office at 2

p.m. the next day, March 17, 1965 (R. 5,7). The letter con-

tained no reason. as to why the’ petitioner was to report

(R. 7). Petitioner obeyed’ the order and reported, accom- |

panied by counsel (R.5). The City Solicitor was also pres-

ent (R. 5). A stranze scene ensued. Although the City |

Solicitor, a stenographer, and the head of the Vice Squad

4 Farmington River Water Power Co. v. County Commissioners, .

112 Mass. 206, 214 (1873) ; Real Properties, In®@ v. Board of Appeal

of Boston, 311 Mass. 430, 431, 42 N.E. 2d 499 (1942). . an

5It is doubtful that the Supreme Judicial. Court will agree to _

certify the return as part of the record on this petition, since, the /

return not having been printed (R. 1), there is only one cop}dé —

However, the only material fact shown in the return but not in the

agreed statement of facts is the statement by pefitioner’s superior, -

supra, that he was a model police officer. | V

were present at this hearing. (R. 9), the acting Police Chief

made&& sustained effort to-have eounsel for petitioner leave

the room (R. 8-10) and even said to petitioner, “Tn this ih-

. terview here, we are not having lawyers present. This is

a departmental talk in regards to some questions which

we have here for you”’ (R.8). A stenographer who accom- —

panied petitioner was, at the insistence of the City Solici-

tor, required to‘feave the room (R. 10).

. Petitioner’s attorney informed the acting Chief that pe-

titioner was ‘‘ready to answer any questions that are

asked’’ (R. 8); however, in the course of questioning, the

acting Chief at one point began to ask petitioner questions |

(R. 10-14) about whether he knew cettain persons and about

his conduct before a grand jury. Thereupon, petitioner’s-

counsel advised the acting Chief: ‘‘You are now under a

domain of grand-jury proceeding. .... you do fiot have

_any right to go into any grand-jury Grooedure” (R. 11).

Counsel advised petitioner to stand mute to all questions

that would cause him to repeat or divulge his testimony

_ or conduct before the grand jury (R. 11, 13, 14)... Petitioner

accepted his. counsel’s. advice (R. 11-14). The questions

which petitioner refused to answer are set forth in foot-

note 1 (A, 22- 33) of the opinion of the Supreme Judicial

Court and are found in pages 10 through - of the nin

record.

The questions could be placed into three basic ania.

The first category of questions involved petitioner’s knowl--

edge of and degree of acquaintance with three named

‘persons including questions as to whether they had crimi-

nal records. The second category of questions concerned

petitioner’s conduct and testimony before a grand jury in-

cluding questions as to whether he had claimed his Fifth

Amendment privileges before the grand jury. The third.

category includes only a single qu@stion: ‘‘Do you have

any information regarding any felony or any person wanted

on a felony charge?’’ To this petitioner answered, ‘‘No’’®

(R. 14). For refusing to answer these questions, petitioner

was discharged as a police officer (R. 15-20). The City

Manager, in discharging petitioner, stated that he had con-

ducted himself ‘‘in a manner unbecoming a Police Officer’?

and had been “‘insubordinate”’ in that these questions were -

pertinent to whether ‘petitioner had complied with sections

16, 92 and 93 of chapter 8 of the Rules and Regulations of

the Police Department of the City of Medford (R. 18, 19). -

These rules are printed in the statutory appendix. |

In his petition for writ of certiorari in the Supreme Ju-

dicial Court, petitioner alleged that his refusal to answer

these questions was proper for several: reasons, but obvi-

ously we need only be concerned with the federal constitu-

tional grounds at this point. These grounds (all explicitly,

founded upon the Fourteenth Amendment and, where ap--

. propriate, provisions of the Bill of Rights) were that ‘‘Pe-

titioner was under no obligation to answer the questions

which he refused to answer during.the pendency of grand.

jury proceedings inasmuch as for answering such questions

he could have been punished for contempt’? (R. 3); that

‘*Petitioner could not be removed for refusing on the ad-

vice of counsel honestly given, to answer the questions

asked of him by the Acting Police Chief during the pen-

dency of grand jury proceedings’”’ (R. 3); that ‘‘there is

no showing that the Petitioner’s refusal to answer the

questions asked of' him by the acting Police Chief was in

violation of the police regulations,of the City of Medford

6It is true that petitioner later changed his answer to say that

he was standing mute, but since this was a departmental inquiry

(R. 8) and not an official court record and since petitioner was

not under oath, the change in answer was obviously of no conse-

quence and the acting Chief ebtained the information he wanted.

or of any of the general duties as a policeman’’? (R, 3-4);

and that ‘‘Petitioner, by answering the questions asked of |

him by the Acting Police Chief, could have subjected him-

self to criminal prosecution’’ (R.-4).

The Supreme. Judicial Court dealt directly with only one

of these constitutional questions,, petitioner’s privilege

against self-incrimination (A, 26-29). It dealt with the ques-

tions of whether petitioner could have ‘subjected himself

to contempt proceedings by answering the questions (A, 25-

26) and whether he could properly have relied upon his at-

torney’s advice (A, 29-30), but it did not in its opinion .

consider the constitutional issues raised thereby, though

these had been full} briefed and argued. The court brushed

aside any question as to the Police Regulations 6f the City of

Medford by noting (A, 24) that petitioner was under a plain

duty ‘‘apart from the rules of the Medford Police Depart-

ment’’ to answer the questions of his superior officer, and

it did not even mention the. First comers questions

in its opinion..

The Supreme Judicial Court, finding that there was no

error of law in‘the affirming of petitioner’s discharge, or-

dered the petition dismissed on April 10,.1969 (A, 30). On

April 14, 1969, petitioner filed a written request for rehear-

ing, a copy of which is printed in Appendix C hereto. On -

April 15, 1969, the Chief Justice.of the Supreme Judicial

Court, by letter, informed petitioner that’ his request had

been received,and would be considered by the full court.

On April 18, 1969, the Chief Justice “inffermed petitioner

that his request had been considered and denied but that

"there was a change in point 5 of the opinion. Both letters.

7 Petitioner alleged that requiring him to answer thse questions -

pursuant to these regulations or any other provision would be

unconstitutional in providing no reasonable and ascertainable

standards for official action an in violating his right to pri-

. vacy (R. 4).

. 10 ™ ?

| | e, “if .

of the Chief Justice are printed in Appendix D hereto. It

‘will be noted that the request for rehearing (C, 37-38) called

the court’s attention both to a misstatement of fact and to -

the failure of the courto .coysider petitioner’s right-of-

privacy questions. The revised opinion of the court cor-

rected the misstatement to which petitioner had called at- .

tention but did not make any effort to consider the First

Amendment questions... .

Reasons for Granting the Writ.

a Bar

I.- PetrT1IoNER couLD Nor BE DiscHARGED FoR REFUSING TO

Answer 'QuEsTIONs oF HIs SUPERIOR WHEN, BY ANSWERING .

THESE QUESTIONS, PETITIONER HAD’Goop CausE To BELIEVE

HE WOULD Suspsect HImsgELF TO PUNISHMENT FOR CoN-

TEMPT OF GRAND JURY PROCEEDINGS. — (Applicable to ques-

tion No. 1.) | |

The opinion of the Supreme Judicial Court states (A, 25): °°.”

‘We assume that persons other than grand jurors making’ -

‘disclosure of facts within-the restrictions stated in [Com-

_ monwealth v. Hitl,,11 Cush. 137] could, in some ‘cireum-

‘stances, be held in contempt for interfering with the grand |

Njury as a constituent part of the court. See Commonwealth

_v. McNary, 246 Mass. 46, 50-51.’’." A little later the cour? ~

states unat p#itioner’s ‘‘refusals to answer were not jus-

tified because of the possibility that he would be in contempt a

for breaking the secrecy of the grand jury.’’ Petitioner

submits that, as a proposition of constitutional. law, the last

quoted sentence is rather patently erroneous. “The possi- -

bility that he would be in contempt for breaking the secrecy

of the grand jury was indeed a sufficient grou d_for his

- refusal:to answer the questions. In this context, it should

be noted that petitioner consulted an attorney who con- ,

sistently advised him that he was not allowed to answer _

} — ‘ 11

the questions put tg him by his superior (R. aay A, Se. 1,

22-23, 29; Appendix A to Petitioner’s Reply Brief j in Su-

-preme Judicial Court). =a

Whether petitioner had reason to believe that he might

be punished for contempt if he answered his: superior ’s

questions is an issue’ to be decided, not by the law as it

stands now that the Supreme Judicial Court has given

its opinion in the case at‘bar, but on the jaw as it steod

when petitioner, with advice of counsel,.was forced to make

his choice. Murphy v. Waterfront Commission of New

York Harbor, 378 U.S. 52, 79-8 , as the opinion of the

Supreme Judicial Court in the ant case may be read to

indicate, petitioner could net ha¥e been punished: for con-

. tempt for answering the question hich he refused to an-

swer on March 17, 1965, the prior law of aprEo we

gave no Such indication. On the contrary, in at leas

Massachusetts cases, persons were held-in contempt for

. doing. no more than informing grand jurors that two pre-

vious grand juries before which they had testified had

failed to indict them. Commonwealth v. McNary, 246 Mass.

46, 50, 53,140 N.E. 255 (1923) ; Commonwealth v. Chmiel. ©

inskt, 246 Mass..55, 56, 140 N.E. 258 (1923). In New Hamp

"shire Fire-Insurance Co. v. Healey, 151 Mass. 537, 538, 2

N.E. 913 (1890), the precise question was whether a dis-

—” tiet attorney could testify before a petit jury as to: testi-

mony that one of the parties-had given-to a grand jury.

The Supreme Judicral Court held the-district attorney’s

testimony’ admissible ; it did so, however, strictly on the

basis that the need for secrecy had passed. The elear: im-

plication of the opinion is that the district attorney wéuld

not be allowed to divulge the ‘grand. jury’s evidence under

circumstances in which the ‘jurors themselves were bound’

to keep it secret.

The instant opinion of the Susiceine ‘Judicial Court cites: |

' (A, 25) Commonwealth v. McNary, supra, but makes noef- .

alas A

fort to distinguish it. About New Hampshire Fire In-

surance Co: v. Healey, supra, the court says (A, 26): ‘‘The

negative implication of that case does not bear on police

- department inquiry as to whether an officer had been be- .

- fore the grand jury, had testified and had refused to testify

because of his Fifth Amendment privilege.’’ But peti-

tioner could have no way of knowing this on March 17, 1965

and if-the opinion of the Supreme Judicial Court is in re-

trospect logically consistent with the’ previous law on this

subject, it could not have been divined by petitioner at the -

time he had to make his choice.* See National Association

for the Advancement of Colored Peale v. Alabama ex rel.

Patterson, 357 U.S. 449, 456-457. *

The court also seers to say that petitioner could not have

been punished for contempt bégause some of the questions

which he refused to panies ary only- to, his conduct

rather than his testimony beMre thé grand jury while the

others were not direct inqiiries into his testimony (A, 25-

26). Again, the Supreme Judicial Court may be undoubt-

edly correct in its hindsight statement of what the law of

Massachusetts really was, but it should be noted that until

this time the Massachusetts case law indiéated that a witness

before a grand jury was barred wot only from discussing

what was said but also from disclosing ‘‘what took place.’’

New Hampshire Fire Insurance Co. v. Healey, supra, 538;

Commonwealth v. Chmielinski, i Se ee v.

8 There was also a considerable body of law from other jurisdic-

*tidns holding that a witness before a grand jury is bound to secrecy

as to all matters pertinent thereto. See Arlington Glass Co. v.

Pittsburgh PlataGlass Co., 24 F.R.D. 50, 52 (N.D- Ilt);-Widener

v. Croft, 184 So. 2d 444, 445-446 (Fla. App.) ; State v. Fassett, 16

Conn. 457, 470-471; State v. Brewster, 70 Vt, 341, 347. In Goodman

v. United States, 108 F. 2d 516, 518-520 (C.C.A. 9, 1939), the ap-

pellant was actually pagiished for-cont@mpt for doing what the

Supreme Judicial Court Tw the present case felt was petitioner’s

fnty.

pes ° ; ;

' o s eC —_ ~%\

& ad ll Q *

f 13

McNary, supra. Petitioner also submits that it is clear on

the record that the mtention of petitioner’ superior had

been te ask about petitioner’s testimony. Petitioner’s re-

fusal to answer the acting Chief’s questions commences

with the question (R. 10): ‘‘Do you know William McGov-

ern of 230 Gaston Street, Medford?”’ To this question,

counsel for petitioner replied in effect that the interrogator

. was trenching upon grand jury testimony and the petitioner

was advised not to answer (R. 11). The acting Chief ad-

mitted as much by replying: ‘‘If any questions are asked

regarding grand jury, you advise him [the petitioner] td

stand mute’’ (R. 11) and by making no effort to said

the scope of his question.

' Petitioner, therefore, submits that there was a reason-

able possibility that by answering his superior’s questions

he could have left himself open to punishment for contempt.

As already noted, the Supreme Judicial Court’s.opinion .

* admits of this possibility (A, 26). In these circumstances,

_~ petitioner was, in the words of Garrity v. New Jersey, 385

U.S. 493,° 496, given ‘*a choice between the rock and the .

whirlpool.’? On March 17, 1965, petitioner’ s choiée was

to speak and risk jail for contempt or remain silent and

_ risk his job as a police officer. That the due process clause

of the Fourteenth Amendment forbids a state from requir-

ing a person, by any means whatever, to pursue a course

of conduct for wliich he may later be amerced has been too

thoroughly settled in a wide variety of cases and circum-

stances to admit. of any serious doubt. See, in addition

to the Garrity case, Raley v. Ohio, 360 U.S. 423, 426; Bag-

gett v. Bullitt, 377 U.S. 360, 374; Murphy v. Waterfront

Commission of New York Harbor, supra, 55; Western Union

Telégraph Co, v.. Pennsylvania, 368 U.S. 71; Steyens v.

Marks, 383 US S. 234, 243; Gardner v. Broderick, 392 U.S.

273,'278. In holding otherwise, the Supreme Judicial Court

“4

: e°

JZ eo

committed clear and reversible error and certiorari should

be granted to correct this error.

II. Tue Supreme Jupicia, Court Exrep 1x Howpine THat

Petitioner’s RerusaL to ANSWER MIGHT Nor BE JusTI--

FIED ON THE GROUND THAT HIS ANSWERS ‘MIGHT HAVE

TENDED To IncriminaTeE Him: (Applicable to questions

Nos. 2 and 3.) » .

The Supreme Judieial Court conceded (A, 26-27) that ques-

tions concerning petitioner’s privilege against self-incrimi-

_ nation were properly before it. The court also cited the

language of Gardner v. Broderick, at page 278, supra, hold-

ing that if a policeman ‘‘had refused to ansWer questions

specifically, directly, and narrowly relating to the perform-

» ance 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 prosecution . . . the privilege

\esin self-incrimination would not have been a bar to his

ismissal’’ (A, 27). Nowhere, however, does the Supreme

. Judicial Court find that the questions which petitioner re-

fused to answer specifically, directly and narrowly related

to the performance of the petitioner’s official duties.

The opinion below claims (A, 28) that the questions re-

. lating to whether the petitioner knew certain.persons were

‘‘reasonably designed to inform his superior whether he

had failed to report: matters which he should have re-

ported, in particular, his knowledge of an auto theft ring

involving three other policemen.’’ But this.statement is

somewhat fanciful. The Civil Service Hearing Examiner

inferred but did not find that these were questions involv-

ing petitioner’s ‘knowledge of certain persons . . . in some

way involved in an auto theft ring.” Even if, however, we

treat the Hearing Examiner’s inference as a finding, Mr.

“4

Justice Whittemore clearly goes far : beyond that finding

»when he states that petitioner had failed to report ‘‘his

knowledge of an auto theft ring.’’ That petitioner may

have known these persons does not lead to the conclusion

that he also knew that they were involved in an auto theft

ring. Indeed, as has already been pointed out, when the:-

acting ‘Chief confronted petitioner directly and asked him

whether he had anyfnformation regarding any felony or

any person wanted on a felony~charge, petitioner replied

that he,did not (R. 14). .This was the only question which

- could even conceivably have been said to pertain specifically,

directly and narrowly to the petitioner’s official duties, and

this question petitioner answered.

Petitioner was discharged not only for claiming the Fifth

Amendment rights generally but for refusing to tell, his

superior, among: other things, whether he had claimed his

privilege against self-incrimination in grand jury, proceed-

ings (R. 13;'A, 28-29). On this point the apres Judicial -

Court stated (A, 29): st

‘‘Certainly, a police officer who has claimed or claims

the privilege as to a matter under current investigation

could be deemed unfit to work in any aspect of his job

related to that or to a similar investigation. His supe-

riors, therefore, had a right to ask if the claim had been

made and the obligation of Silverio’ s job was to an-

‘swer.”’

To begin with, the Supreme Judicial Court’s statement is

based upon facts that simply do not appear anywhere in

the record. There is no showing that the questions put to

petitioner involved ‘‘a matter under current invesfiga-

. tion.”? The acting Chief was not asking these questions to

determine whether the petitioner should or should not be

‘allowed to work or to continue in any current or pending

—_

Sag E NE RIGO

wart

: investigation. The record points to nothing more than a

bald attempt on the part of the acting Chief to determine

- ion proceeded, his opinion *would have nevertheless been in

grand jury in order to subject him to disciplinary pruceed-

ings for claiming that privilege. Petitioner was discharged

because, in the opinion of the hearing officer assigned by

the Civil Service Commission (R. 23), petitioner’s ‘‘re-

fusal to cooperate with his supefior officer in his investiga-

tion, has resulted in his usefulness in such a sensitive area

as police work [sic] nonexistent’? (R. 23). Even if, how-

ever, there were evidence in the record to suffport the fac-

* tual hypothesis upon which Mr. Justice Whittemore’s opin-

ion proceeded, his opinion would have nevertheless beén in

error as to the law. The true rule is that no inference what-

soever could be drawn from the fact that petitioner claimed:

his privilege before a grand jury and, therefore, petitioner

could not be discharged fr6m employment for refusing to

‘state whether he had in fact claimed the privilege.® Grune-

wald v. United States, 353 U.S. 391, 423-424, _

Thug, in plain and simple English, the Supreme Judicial ;

Court was wrong in holding that petitioner could be dis- :

charged for claiming his privilege in refusing to answer

all of his superior’s questions (except for the last) because

none of these questions are shown to have pertained specifi-

cally, directly or narrowly, to his official duties *° and doubly”

- *Tf there is an exception to this rule when a police officer is

testifying before a grand jury as part of his official duties, it has

no relevance to the instant case, where the record is clear that

these were’ not the circumstances of, petitioner’s ee before

the grand jury. ‘

10 See, in addition to Gardner v. Broderick, supra, Uniformed |

Sanitation Men Assn., Inc. v. Commissioner of Sanitation of the.

City of New-York, 392 U.S. 280, 284-285. The Supreme Judicial

Court seems to misread and misapply the Gardner and Uniformed

_ Sanitation Men cases when it points out that in the instant, case

‘*no testimony was coerced by threat of discharge and no request

‘

wrong in further holding that petitioner cofild be discharged _

for refusing to tell his superior whethgr he had claimed

his privilege. Certiorari should be gra ted to correct this

error.

III. Tue Supreme Jupicia, Court Errep in ReFvusine To

-RuLe THAT PETITIONER’S FarLure To ANSWER QUESTIONS

PERTAINING TO HIS Kwowzevce OF oR ASSOCIATION WITH

CERTAIN Persons 1s Nor a ConstiruTionaL GROUND FOR

HIs- REMOVAL UNDER THE First, Fourtu anp FourTeeNtTH

AMENDMENTS OF THE CONSTITUTION OF THE Unrrep States.

(Applicable to question No: 4.) |

We have, already noted that petitioner raised his argu-:

ment about right@f privacy and freedom of association in

his petition, argued it in his brief in the Supreme J udicial-

Court, and in his petition for rekbaring called to the court’s

attention its failure to deal with this issfe. Petitioner sub-

mits that it was clearly and appropriately raised and that,

the failure of the Supreme Judicial Court to pass upon it ©

notwithstanding, he has a right to ask to have it resolved

in this court. See Epperson v. Arkansas, 393 U.S. 97, 101-

102. ae:

for waiver of immunity was made’’ (A, 29). That the city claims

and indeed has exercised authority to discharge petitioner from

employment for not answering his superior’s questions is clearly

‘‘eoercion,’’ however subtle or well-mannered. Garrity v. New

' . Jersey, supra, 496. It is immaterial that “‘no request for ‘waiver

of immunity was made’’ in this case. Sach a request was germane

to the Gardner case because of the specific provisions of section

1123 of the New York City Charter, quoted at page 75, fn 3. There

ean be no doubt that under Massachusetts law, petitioner could

have been criminally prosecuted on the basis of any incriminating -

statements made to the acting Chief in the course of his interroga-

tion. Ross v. Crane, 291 Mass. 28, 32-33, 195 N.E. 884 (1935);

Commonwealth v. Benoit, 347 Mass. 1, 3, 7, 196 N.E. 2d 228 (1964).

Any ‘‘immunity’’ petitioner may have enjoyed would have been

‘‘waived’’ by’ answering the questions.

;

18 =

Under the First, Fourth and Fourteenth Amendments of

the Constitution of the United States, all persons, includ-

' ing public employees, enjoy a right that has been labelled

‘freedom ofsassociation’’ gnd *‘privacy in one’s associa-

tions.’’ Grisw d v. Connecticut, 381 U.S. 479, 483. What-

ever else may be said of this freedom, it clearly includes:

the right of a person under its protection to refuse to di-

vulge his private associations. Konigsberg v. State Bar

of California, 353 U.S. 252, 270, 271; Sweezy v. New Hamp-

shire, 354 U.S. 234, 248-250; National Association’ for the

‘Advancement of Colored People v. Alabama, 357 U.S. 449,

462; National Association for the Advancement of Colored

People v. Button, 371 U.S. 415, 430, 431. It follows that

the refusal-of petitioner to state whether he knew Messrs.

Howard, Penta and McGovern and the extent of his asso-

- ciations with them (R. 10-12) was well within his righ@

under thé First and Fourth Amendments to the Constitu-

‘tion of the United States as these Amendments are incor-

porated in the Fourteenth Amendment and that he could

- nét be discharged for exercising them. The contrary hold-

-- ing implicit in the opinion of the Supreme Judicial Court

is error, and certiorari should be granted to reverse its

‘ judgment. |

IV. Petitioner couLp Not BE DiscHaRGED FOR HIS ALLEGED -

Viotations or Sections 16, 92 anp 93 or CHapter III or

THE RULES AND REGULATIONS OF THE PoLicE DEPARTMENT

OF THE City OF MEDFORD BECAUSE PETITIONER’s CoNDUCT

was Not WITHIN THE ScoPE OF THESE REGunatTions. -(Ap-

plicable to question No. 5.)

The Hearing’ Examiner:i in his report cited hone pehions |

of the Rules and Regulations of the Medford Police Depart-

ment (R. 22), and then went on to rule impliedly that peti-

tioner had violated these Regulations * (R. 22-23). In fact,

the text of these regulations totally failed to sustain

‘the Hearing Examiner on this point. Section 16 requires

policemen to report crimes, suicides, fires, accidents and

‘‘all [other] important happenings, complaints and in-

formation of which the [police] Department takes cog-

nizance.’’ The withholding of such information subjects :

a policeman to disciplinary proceedings. None of the

questions which petitioner refused to answer on March 17,

1965, was in any way relevant to any ‘‘happenings, com- ©

plaints, and information’’ which petitioner was obligated

to report. .

Section 92 requires policemen to report ‘information

regarding any felony charge, or any person wanted on a

felony charge.’’? The regulation was apparently intended

to help the police track down wanted and missing persons.

There is not the slightest hint in the rétord (nor could

there be) ‘that the persons whom the petitioner was asked

whether he knew were missing. In any event, even if these

persons were wanted on,a felony, or, as the Hearmg Ex-

aminer inferred, were in some way involved in an auto theft

ring, petitioner did not refuse to give the acting Chief

11 Perhaps seeing that petitioner’s conduct could not possibly

fall within the scope of these Regulations, the Supreme Judicial

Court attempted to shift the grounds of decision from a breach

of petitioner’s duty under.the Regulations to breath of ‘‘a duty

by virtue of his pffice’’ (A, 24). For reasons that have .already

been discussed in\ Argument II, supra, the record does not show .

any lack of cooperation by petitioner in ‘‘the prevention and de-—

tection of crime an apprehension of criminals.’’? Huntoon

v. Quincy, 349 Mass, 14, 206 N.E. 2d 63 (1965). However,

from the beginning, pét Honer ’s discharge has been grounded upon

his noncompliance with the Rules and Regulations (R. 16-19). An

attempt to uphold it on any other grounds, petitioner- submits,

would be constitutionally futile, since. he had no notice thereof.

Cole v. Arkansas, 333 U.S. 196, 200-201.

20°

information concerning» them. Tusdeod, he was never asked

to give such information. He mefely refused to state

whether he knew these people socially or. otherwise.

Section 93 requires that members report ‘‘all suspected

violations”. and ‘‘information they may get about any vio-

lation or suspected violation. ”’ N one of the questions that _

petitioner refused to answer even remotely — to vio-

_lations and suspected. violations.

The answers to the questions which the acting Chief asked

_ eould.not possibly have helped him ‘‘to ascertain if [sic]’’

petitioner ‘‘had failed to comply with the provisions of.

Chapter III, Section 92,’’ section 93 or section 16; yet pe-

titioner was discharged on precisely this charge (R. 16,

18-19).

The construction of these Regulations was a ‘question of

law for the Supreme Judicial Court, Lapenas v. Zoning

Board of Appeals of Brockton, 352 Mass. 530, 533, 226 N.E.

2d 361 (1966). . By affirming petitioner ’s discharge on the

basis of these Regulations, the Suprenfe Judicial Court

impliedly held that they could be constitutionally Sppied

to remove petitioner from office. —

Petitioner submits that this ruling was error. A stat-

ute or regulation cannot be applied to control or punish.

conduct when; as applied to that conduct, its meaning is

so vague and hopelessly obscure: that men of common in-

telligence would never be able to discern it. Cramp v.

Board of Public Instruction of Orange County, 368 U.S.

278, 287. See cases cited in Barenblatt v. United States,

. 360 U.S. -109, 137, fns. 2, 3 and 4 (dissent). Petitioner sub-

mits that the police regulations here in question were not

only unconstitutionally vague as applied to his refusal

to answer thé acting Chief’s questions.but that.they unam-

biguously failed to include his refusal within their scope.

If a person cannot. constitutionally be punished because his

conduct eunieneilly violated a law that is merely vague, a

fortiori he cannot be punished for ‘‘violation’’ of a law

that is clearly inapplicable. Thompson v. Louisville, 362

U.S. 199, 205-206. The implied holding of the Supreme

Judicial Court that petitioner could be removed for not

complying .with these regulations in these circumstances

was, therefore, error, and certiorari should be granted to’

correct it.

Conclusion. .-

A writ of certiorari should issue to review and reverse

the judgment of the Supreme Judicial Court of the Com-

monwealth of Massachusetts. | Pa

Respectfully submitted,

DAVID BERMAN, _

JOHN F. ZAMPARELLI.

ZAMPARELLI AND Wurtz,

Of Counsel.

22 a

APPENDIX A.

Opinion. of the Ce Court of the Commonwealth

, of Massachusetts. _

Sazvato J. Sipverio vs. Muntorpan Court OF THE Oney OF

Boston. (1969 Mass. Adv. Sh. 691, 247 N.E. 2d 379.) :

. Wuirremorg, J. The petitioner on March 30, 1965, was

discharged as a police officer in the city of Medford by. the

city manager who was the ‘appointing authority’? (G. L.

ce. 31, § 43 [a]). On appeal to the Civil Service Commission

‘(c. 31, § 43 [b], a hearing officer made findings. The Com-

mission, on June 2, 1965, adopted the findings, and affirmed

the discharge. On petition under ec. 31, § 45, the Municipal

Court of the City of Boston reviewed the action of the city .

manager and the Commission to determine ‘whether ... ‘

upon all the evidence such action was justified,’’ and on -

November 7, 1967, entered an order upholding the decision. |

This petition for writ of certiorari brings before us the -

issue whether there was error, ‘of law apparent on the record

including whether: the evidence was sufficient in law. Sul-

Livan v. Mumeipal ‘Court of the Roxbury Dist. — Mass.

_ 566, 573-574. Lies

' The city manager had discharged Silverio for his refasdl

to ayswer questions asked of him by his. stperior, Captain

John B. O’Leary. A letter from Captain ‘O’Leary to Sil-

verio had requested Silverio to repert,to the captain’ s

office on March 17, 1965, at 2 p. M. ‘ Silverio came with his

attorney. The questions and some of_the colloquy are set

out in the margin. .

1 Before the questioning began Silverio’s attorney said, ‘‘This

was on the front pages of .the weekly newspaper and the three

parties that were named are all under indictment. It fakes it out

of the realm of a mere departmental inquiry.’’ °In the following

excerpt from the transcript where no answer is shown after a

. ‘

“Ing a statement of. ageean facts the parties itipelated

that the evidence presented to ‘the Comniission’s hearing

-officer was sufficient to warrant the findings of fact made

‘by -him. x c echt

question ™ there was a statement by Silverio’s attorney to ‘the effect

that he stood mute. — .

_ O’Leary: ‘‘Now, the putpose i ee . to find. out what * . you

“. ean tell me, as your superior officer in the discharge of ' your duties

under the Rules and Regulations of the Police Department as to .,

whether things have gone on in this city which: you should have , |

‘ reported. You have had a Rule Book given to you?”’ SILVERIO: .

‘‘Right.’? O’Leary: ‘‘Dogyou know William McGovern of 230 °

Gaston Street, Medford?’’ THE arrorNey: ‘‘You are now under _

a domain of grand Jury proceeding. “As long as the record shows ¢

that you are going into that; you do not have any right to go into |

any grand jury procedure, as you know... >:”? O’Leary: :

‘Have you ever been to his house in Medford? -Have you ever

visited his place of business.in Charlestown? Have you ever dotie

any business with him? ... [Five similar unanswered questions

about Richard’ M. Penta and Thomas Howard.] Do you know

. whether or not they have a criminal record?. You were recently

summoned to appear before the grand jury, is that true? Did

you report to a grand jury at some time? ... Were you s

“* sworn as a witness in the grand jury room? Did you take the

witness stand in the grand jury room? Were you asked a question e

_ or questions? Did you xefuse to testify as to any questions that |

were asked‘you? ... Do the-questions that you refused to testify

to have anything to do with suspected automobile thefts or receiv-

ing stolen property, namely, automobiles, in connection with people

known to you, including yourself?’? THE aTrorNEY: ‘‘He has’

been instructed not to discuss any grand jury questions with any-

one, including counsel, and further stands mute by the advice of

counsel.’’ O’LEaryY: ‘‘Did.you claim the ‘Fifth Amendment to

any questions asked you before the grand jury?’’ (The attorney

made the same statement.) O’Leary: ‘‘Did you refuse to testify

before the grand jury on the grounds that it might incriminate

you?’? (The attorney thade a similar statement.) O’LEarY:

‘‘Do you have any information regarding any felony or any.per-

son wanted on a felony charge?’’. Sitverio: ‘‘No,’’ O7’LEARY:

**Do .you have any suspected violations: you wish to report?’’

‘*Right in here, Mr. Gallagher [the City Solicitor] questions ites

[the attorney ’s] ability to have the office? answer-‘No’ and stand - .

mute at the same time. After discussion . . . [the attorney] _

agreed that he would just stand mute.’’

Py . ‘ < ee

§ °

wc Tada . - . ® «

* ad 24 ‘ .

- * ad . *

¢ ‘

‘ The, siaiie ile found, inter alia, that the questions

involved’ 'Silverfo’s ‘*knowledge of certain persons who it_

“can "reasonably be’ inferred were in some way involved in

*. an auto theft ring involving them and three other Medford

Ct policemen who -were under indictment.” The hearing offi-

cer, in effect; ruled that answering the questions would not

have been violative of a duty to maintain the segrecy. of

grand: jury proceedings, particularly. where the informa-

» tion sought by the superior officer was only as to his con-

duct before the grand jury. He concluded, ‘‘I am cognizant

of the fact that . . . [Silverio] was not . . . indicted . . .,

but his insubordination and refusal to cooperate with his

superior officer in his investigatio s resulted in his.

usefulness in such a sensitive area as police work hon-

existent.”’ ‘

1. Silverio was under a duty by virtue of his office to an-

swer the questions. This is plain apart from the rules.of

the Medford Police Department that were in eVidence and

with which he was familiar. 2 «Important among the many |

~ , duties of police officers .: . are the prevention and detéc-

tion of crime and the ERENT. PM of criminals.’’ -Huntoon :

v. Quincy; 349 Mass. 9, 14.

- 2.. Failure to answer, unless required by an overriding

duty, or constitutionally protected, was ground for ‘dis-

charge for thé reasons stated by the hearing officer.

2‘*Chapter III. Sect. 16. Members and employees of the De-

partment shall communicate promptly to the Commanding Officer

all crimes, .. . and all important happenings, complaints, and

information of which the Department takes cognizance, which may

come to their attention. .. .

**Sect. 92. Members having information regarding any felony,

or any person wanted on a felony charge, shall immediately give

all details, to their Commanding Officer.

‘“Sect. 93. Members shall repert all suspected violations com-

ing to their attention, as well as all information they may get

about any violation or suspected violation.”’

)

. 25

, 3.. Answering the questions would have violated no duty

of Silverio to maintain the secrecy of grand jury proceed-

ings. °

The only obligation as to secrecy directly imposed by

statute is on the grafd jurors. G. L. c. 277, §§ 5, 12 and 13.

_ But even that does not prevent a grand juror from testi-

” fying that a certain person had not been a witness before

a grand jury. Commonwealth v. Hill, 11 Cush. 137, 140.

We do not overlook that in that case the testimony was

oo at a time wher the need for seerecy had ended, but

_ Wé agree with the respondent that the holding is not placed

‘on‘that ground. In the Hill case, the court said that grand

- jurors may not ‘‘state, how any thember . . . voted or the

‘opinion expressed by their fellows or the wee upon any.

question before them, nor to disclose the Yat that an in-

dictment-for a felony has been found ‘against any person,

‘not in tustody, or under’recognizance, nor to state in detail

the evidence on which the indictment is founded. .

[W]e know of no ‘authority which’ carries the rule of snide.

sion further, and we can see no ground of policy or sound

reason for its ° ‘extension. _ It Seems to us, therefore, |

that a.member of waresa jury may testify to any fact,

otherwise competent, which does not violate the restrictions

aboye stated. ff .

We-assume that persons other than grand jurors making

. disclosure of facts within the restrictions stated in the Hill

case, could, in some circumstances, be held in contempt for .

interfering with the grand jury as a constituent pprt of the

court. See Commonwealth v. McNary, 246 Mass. 46, 50-51.

But i in Commonwealth v. Geagen, 339 Mass. 487, 497-498, we

‘held that disclosure by State and Federal officials of what

witnesses had testified to or would testify before the grand

jury was not violative.of the secrecy of the grand jury room

and not pues for abatement. te

Silverio’s refusals to answer were not justified because

of the possibility that he would be in contempt for breaking

the secrecy of the grand j jury. None of the questions asked

for disclosure vf any of the secrets of the grand jury room.

Silverio’s brief misstates the purport of the questions. He

was not asked to invade the ‘‘secrecy as to his testimony”’

and the cases from other jurisdictions holding that he may

not do so are beside the point. We note New Hampshire

Fire Ins. Co. v. Healey, 151 Mass. 537, 538, holding that

the district attorney might testify as to a witness’s testi--

_ mony before the grand jury because the need for secrecy

had at that time passed. The negative implication of that

case does not bear on police department inquiry as to

whether an officer had been before the grand jury, had

testified and had refused to testify because of his Fifth |

Amendment privilege. There was no implication of intén-

- tion to ask what Silverio’s testimony had been.

We assume that the questions that asked Silverio as to

his acquaintance and association with three named persons,

_and their criminal records, may have been ‘questions about

facts to which he had testified or refused to testify before

P«]

the.grand jury. But that circumstance did not put a lock

on Silverio’s mind and tongue to bar his disclosure of the

same facts to anyone else. Silverio’s recital of those facts

as facts. known to him would in no sense lave been a dis-

closure of.grand jury pfdteedings. Commonwealth v.

Doherty, 353 Masp. 197, 210-211." (That-a witness had

testified before-the grand jury would not justify his de-

clining to talk with defence counsel.)

- 4, Silverio’s refusal to answer may not be justified on

the ground that his answers might have tended to incrimi-

nate him. We assume that this justification may now be

asserted even though it was not expressed when the ques-

* Mass, Adv. Sh. (1967) 1327, 1338.

oa eels OR

tions were put. Commonwealth v. Prince, 313 Mass. 223,

229-231, affd. 321 U. S. 158.2

The Supreme Court of thé United States in Gardner v.

Broderick; 392 U. S. 273, 278, held that it was improper to

discharge a police officer for refusal to waive immunity fol-

lowing his being told. that he would be discharged if he

did not do so. The court ‘also held, however, that if the

“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 prosecution . .. the privilege against self-

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

In Uniformed Sanitation Men Assn. Inc. v. Commissioner

of Sanitation of New York, 392 U. S. 280, 284-285, fifteen

employees had been told that if they refused to testify on

the ground of self-incrimination they would be discharged.

Twelve had asserted the privilege and had been discharged.

Three had answered the questions, denied the charges

against them and had been suspended. Later they had re-

fused to sign waivers of immunity before the grand jury

and had been discharged on that ground. In reversing the

decision below sustaining the discharges the court noted _

that New York ‘‘was seeking not merely an accounting of

their use or abuse of their public trust, but testimony from

their own lips which . . . could be used to prosecute. them

criminally.’ The court noted, however (p. 285), the ‘‘pe-_

titioners, being public tmployees, subject themselves to dis-

missal if: they refuse to account for their performanee of -

their public,trust, after proper proceedings, which do not

involve an attempt to coerce them to relinquish their con-

It appears from pp. 16-17 and 21 of the record in the Prince

ease that the defendant did not claim the privilege when she re-

fused to answer questions of the school attendance officer.

“

i -

stitutional rights.’’ Compare Seca v. Klein, 385.U. S.

511; Garrity v. New Jersey,.385 U. 8S. 493.

Thus an employee knows that if he fails to divulge in- |

formation pertinent to the issue of his use or abuse of his —

public trust he may lose his job. The fact of employment

poses the continuing choice of whether to divulge such in-

formation. The Constitution of the United States, how-

ever, as we understand its constriction, does not require

. that a public employer continue‘ to employ’ i in a position of

public trust an employee who declines or renders himself

unable to perform the duties_of his position on the ground

of the constitutional protection against self-incrimination.

‘No threat-or pressure of his superior coerces his choice.. -

His choice is his own, even though it may be affected. by

his expectation that his superiors will perform their own

public duties in the light of their-appraisal of his conduct.

" We agree with Mr. Justice Harlan in his concurrence in

the Gardner antl Uniformed Sanitation cases (392 U. S. at

285) that there is ‘‘in thes®opinions a procedural formula

whereby . . . public officials may now be discharged .

for fe cee to divulge te-appropriate authority ialetiie-

tion pertinent to the faithful anncni of their offi-

Misa:

Silverio contends that he was discharged. because he

failed to-disclose wheter he had claimed his Fifth“Amend-

ment rights before the grand jury and that that was, in

effect, discharge for claiming these rights. We deem his

discharge to have been on the Wroad ground that he failed

to answer any questions concerning his conduct.as a police

officer. The inquiry was,in two parts: (1) questions rea-

sonably designed to inform his superior whether he had

failed to report matters which he should have reported,

in particular, his knowledge of an auto theft ring involving

three other policemen;_and (2) questions as to his con-

- @uct before the grand jury in thir investigation of the

matter. The ground of discharge was his complete failure

‘to perform his duty in this interrogation.

In any case, however, Silverio could have been discharged

_ for his refusal to say whether before the grand jury he had

claimed his privilege against self-incrigaination. The es-

sence of the inquiry was whether he had refused to answer

questions about the theft of automobiles. The implications

of this inquiry by his superior officer are no greater than

those in a direct question as to whether he had knowledge

of, or connection with, persons who had stolen automo-

biles. We assume Silverio had a right to refuse to answer

such questions on constitutional grounds. We assume also

that he could not have been discharged. for claiming the

privilege. But this is not ‘that ease. Whether Silverio

had claimed his privilege against self-incrimination in re-

spect of such a matter was the important concern of his

superiors. Certainly, a police officer who has claimed or

claims the privilege as to a matter under current investiga-

~-.tion could be deemed unfit to work in any aspect of his job

related to aston investigation. His superiors,

therefore, had. a right,to ask if the claim had been’ made and

the obligation of Silverio’s job was to answer. :

We rule, that, notwithstanding the constitutional protec-

tion, Silverio was rightfully discharged for breach of duty.

This occurred in the course of an official inquiry in which

no testimony was coerced by threat of discharge and no

request for waiver of immunity was made. He was not

discharged because he claimed his right against self-incrim-

ination’ as in the Gardner case; nor was incriminating

testimony, obtained through threat of discharge, used

against him as in the Garrity case.

5. Discharge of Silverio was not barred because his at-

torney advised him not to answer certain questions and

as to most of them answered for him that he stood mute.

The only expressed ground for the advice as stated by the

attorney was, ‘‘[Y]ou [Captain O’Leary] do not have any

right to go into any grand jury procedure.’’ There was

no claim that answering was barred by law, or by an ef-

fective policy such that Silverio would risk punishment if

he-answered. There is no finding that Silverio relied in

good faith on advice that he was under an obligation not to

answer because it would be illegal or improper to ‘do so. '

Nothing in the record required such a~finding. The Com-

mission and the judge could conclude that the attorney had

told Silverio that his appearance before the grand jury

gave legal ground for refusing to answer and that the at- -

torney would speak for him in asserting that ground and

that, in fact, the refusal was otherwise based.* In such

circumstances, Silverio’s conduft was at the risk that there

was nothing in the ground asserted and that no constitu-

tional privilege would protect him. See Sinclair v. United

States, 279 U.S. 263, 299 (conviction for failure to respond

to questions of Congressional Committee). The court said,

’ «There is no merit in appellant’s contention that he is en-

titled to a new trial because the court excluded evidence -

that in refusing to answer he acted’ in good faith on the

advice of competent counsel. The gist of the offense is re-

fusal to answer pertinent questions. No moral tugpitude is -

involved. Intentional violation is sufficient to constitute

guilt. There was no misapprehension as to-what was called

for. The, refusal to answer was-deliberate. ... His mis-

taken view of the law is no defense.’’

6. No error being shown, an order. ‘shall enter in the

wg court dismissing the —

. we ordered.

\ s

4The judge/was not required to come to a different conclusion

by the testinfony of the attorney in the Municipal Court, not ‘in

the certiorari record, but set out in an appendix to Silverio’s reply

brief, that the attorney, based on his understanding of the law,

had told Silverio he could not answer.as to anything pertaining

to the Grand Jury.

APPENDIX B.

® a

ee _ United States Constitution.

ARTICLES oF AMENDMENT.

ARTICLE I.

Congress shall make no law respecting an establishment .

of religion, or prohibiting the free exercise thereof; or

abridging the ffeedom of speech, or of the press; or the

right of the people peaceably to assemble, and to petition

the Government for a redress of grievances.

- ARTICLE IV.

‘The right of- the people to be secure:in their persons, —

houses, papers, and effects, against.unreasonable searches

and seizures, shall not be violated, and no warrants shall

issue, but upon probable cause, supported by oath or affir- .

mation, and particularly describing the place to be searched,

and the persons or things to be seized. fri

ARTICLE V.

: ' e e

No person shall be held to answer for a capital, or other-

wise infamous crime, unless on a presentment or indictment

of a Grand Jury, except in cases arising in the land or naval

forces, of in the militia, when in’ actual service in time of

war or public danger; -nor shall any person be subject for

the same offence to be twice put in jeopardy of life or limb;

nor shall be compelled in any criminal case to be a witness _

against himself, nor be deprived of life, liberty, or prop-

erty, without due process of law; nor shall private property

be taken for public use, without just, compensation.

“e

32..- .-

Articte XIV.

Section 1., All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens —

of the Unfted States and of.the State wherein ‘they reside.

No State shall make or enforce any law which shall abridge

“the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life, lib-

erty, or property, without: due process of law; nor deny to

any person within its jurisdiction the equal protedtion of

the laws.

Mass. General Laws. \

4 Cian 31. .

Section 43. “€a) Every person holding office or employ-

‘ment under permanent appointment in. the official or labor

' service of the commonwealth, or of any county, city or

town thereof, shall have unlimited tenure of office or em:

ployment, subject to the provisions of this chapter and the

rules made thereunder. He shall not be discharged, re-

moved, suspended for a period exceedimgnfive days, laid:

off, lowered in rank or compensation, without his consent” -

in writing} nor shall his office or position be abolished, ex-_

cept for just cause and for reasons specifically given him in

writing. Before any action affecting employment or’com-

pensation referred to in the preceding sentence is taken,

the officer or employee shall be given a written statement Ww

of the specific reason or reasons for the contemplated ac-

tion, together with a copy of sections forty-three, forty-five

‘and forty-six A, and shall be given a full hearing before

the appointing authority on the-specific reason or reasons

given, of which hearing he shall have at least three days’

written notice from the appointing authority, except in

ace uN e

net

cases of separation from service in the official or labor serv-

ice, resulting from ‘lack of work or lack of money or from

* abolition of positions, in which; case at least seven days’

written notice of hearing shall be given by the appointing .

authority. Within two days after completion of said hear-

ing, the appointing authority shall give to the employee

affected a written: notice of his decision, stating fully and

_ Specifically the reasons: therefor. (As amended through Stu

- 1968, c. 637, § 3.) . ee

(b) ff. within five days after receiving written notice of

the decision of the appointing authority the person so dis-

charged, removed, suspended, laid off, lowered in rank or

eompensation, or whose office or position was abolished,

shall so request in writing, he shall be given a hearing be-

fore a member of the commission or some disinterested per-

son designated by the chairman of the commission. Said

- hearing shall be commen¢éed in not less than three nor more

than ten days, and shall be completed within thirty days, .

after ‘the filing of such request, unless, in either case, both .

parties thereto shall otherwise agree in writing, or unless

a continuance is deemed necessary or advisable in the dis-

cretion of the hearing officer, and the findings shall be re-

" ported forthwith to the commission for action. ‘The deci-

‘sion of the commission shall be i in writing and notice thereof

sent to all parties concerned within ten days after the filing

of the report. If the commission finds that the action of

the appointing authority was justified, such action shall be

affirmed; otherwise, it. shall be reversed and the person

concerned shall be returned to his office or position without

loss of compensation. The commission may. also modify

any penalty imposed by the appointing authority. (As

amended through St. 1968, c. 637, § 4.) 3 |

Section’45. Within thirty days after action by the com- —

mission on a a provided for in section forty-three, t

a ;

wat

? baad

the person ene was dindiareed. removed, suspended, laid

off, transferred or lowered in rank or compensation, or

whose office or position was abolished, may, if said action.

was affirmed by the commission, bring a petition i in the mu-

nicipal court of the city of Boston or in the district court

within the judiciat district of which such persov’ resides,

addréssed to the justice of the court, praying. that the ac-

tion of the appointing authority. and of the commission in’

discharging, removing, suspending, laying off or trans-

ferring him or lowering him in rank or compensation or »

aboliShing his office, may be reviewed by the court, and, ”

after such notice. to the appointing authority and the com-

mission as the court deems necessary, it shall hear witnes-’*

ses, review such action, and determine whether or not upon

all thie evidence such action was justified.- If the court

- finds that such action was justified the action-of the ap-

_ » pointing authority and of the commission shall be affirmed ;

_ otherwise they shall be reversed and the petitioner shall

be reinstated i in his office or position without loss of com-

pensation. The decision ofthe court shall. be final and

conclusive upon the parties, and a copy of the decision shall

be forwarded. forthwith by the clerk of the court to the

_ director. (As amended through St. 1955, c. 407, § 2. )

CuapTer 211..

Section 6. Questions of law arising upon a trial or other

proceeding, or upon a motion for a new trial by reason of °

an-opinion, direction, order or refusal of ,one justice in

.. matter of law, may be reserved for the consideration of the

full court, and so much of the case as is necessary. for un-

derstanding the question shall be er = appearing

3 ,in Ter. Ed.) .

CxHapTER 249,

Section 4, A petition for a writ of certiorari to eoryect

errors in proceedings which are not according to the course

of the common law may be presented to a justice of the.

supreme judicial court, and he may, after notice, hear and.

determine the same. It shall be open to -the patitinner to

contend at the hearing upon the petition that the evidence

which formed the basis of the action complained of or the |

basis of any specified finding or conclusion was a matter of

law insufficient to warrant such action, finding or conclu-

sion. The writ shall not be issued unless the petition

therefor is. presented within two years next after the pro-_

office in any county and shall be returnable as the court

orders. The court at any time after the petition is pre-

‘sented may impose costs’ upon any party, may issue an in-

* junction and niay order the proceedings brought up; and,

after they are brought up, may quash or affirm them, or

may make sucli order, judgment or decree as law and jus-

tice may require. The powers ae by the fotegoing

sentence shall.apply- also to a peti ion for a writ of man-

damus and to an amended petition for either a writ of. cer-

tiorari or a writ of mandamus under section ofe C of

chapter two hundred and thirteen, subject in case of appel-

> late proceedings, to the authority of the supreme judicial

court to suspend the operation of any judgment or deeree

. and to amend any order pending such appellate proceedings

as is provided,in equity by section twenty-two of chapter

-* two: hundred and fourteen. ‘Where a petition is brought

against a bédy or office¥ exercising judicial or quasi-judicial _ -

functions to prevent the body or officer from proceeding in

favor of another party, or is brought with relation to pro- ~

ceedings already taken; such other party may be joined as

a =a respondent by the petitioner or on motion of the

respondent, or by petition to intervene. Such other party

may file a separate answer or adopt the pleadings or return

of the body or officer. Thereafter a final order in favor of

the petitioner shall be directed against said body or officer

and against said other party, each of whom’ shall have a

right of appeal under section one D of chapter two hundred

and thirteen. (As amended through St. 1963, ec. 661, § 1.)

Rules and Regulations of the Police Department of the City

ms of Medford. |

Cusrra ITI.

Section 16. Members and employees of the Department

‘shall communicate promptly to the Commanding Officer all

' erimes, suicides, attempted suicides, fires, accidents, and

all important happenings, complaints, and information of

which. the Department takes cognizance, which may come

to their attention. Any member or employee withholding

‘‘tips’’ or information with a yiew to personal achieve-

_ ment or for any ofher reason shalk be subject to charges.

. Section 92. Members having information regarding any

. felony, or any person wanted on a felony charge, shall im-

“mediatély give all details to their Commanding Officer.

_ $ection 93. Members shall report all suspected viola-

tions coming to their attention, as ee all information

they may get about any violation or\guspected violation.

| , 37

APPENDIX C.

: ; koe April 14, 1969

The Honorable Raymond S. Wilkins,

_ Chief Justice of the Ceprepse Judicial Court

1300 Courthouse,

Boston, Massachusetts 02108.

Re : Silverio v.

Municipal Court of tle City of tiolica: No. 8-14,182

My dear Mr. Chief Justice: #

Petitioner respectfully seeks rehearing or revision of the

opinion on two points in the above case.

On page 12, lines 2-3, the Opinion of the Court states,

‘Neither the attorney [for Silverio] nor Silverio ‘testi- |

fied as to advice given or state of mind at any of the three '

hearings.’’ This statement, I respectfully submit, is not

accurate. I call the Court’s attention to the testimony of

Attorney John Zamparelli before the Special-Justice of °

the Municipal Court of the City ‘of Boston appearing. at

pages 12 through 14 of Appendix A to the Petitioner’s

Reply Brief. At this hearing, Mr. Zamparelli testified

as to the advice that he had given Mr. Silverio (13-14) :

Q. Did ‘you ‘advise Mr. Silverio that he could not

answer any questions to his superior officer that in

any way pertain, or cover testimonies that he had

given before the Grand ouny'

A. I did.

Mr. Gallagher. I object. It’s all in the record.

The Court. Well, if it’s in the record, I will note your

objection on whether he did advise Mr. Silverio. I will

look in the record. You can answer, that I advised

him not to-answer. _

Mr. Gallagher. I-pray your Honor’s judgment.

The Court: Yes or no.

-“

38 . -

The Witness. Yes, I advised him. Yes, I advised him

accordingly. ;

Q. Did you advise Silverio that he could not tell his

superior officer whether or not he had appeared as a

witness before the Grand Jury? ;

“A. I believe I did. Anything that awe to the .

Grand Jury he couldn’t answer.

Q. And did you give this advice on the basis of your

understanding of the law of Massachusetts? °

' A. Yes. —based on the secrecy of the Grand Jury.’’

The above testimony shows that there was a disclosure by

the attorney as to the advice he had given his client. Itis |

true that the attorney never testified as to his ‘‘state of_

mind” at this hearing. However, the Court will note at

‘page 13 that the Judge of this Court — hear such

testimony :

“‘The Court. I .have taken his testimony, but I. am

not going to get-into what went through his mind. I

will exclude that question.”’

We also respectfully call the Court’s attention to its failure

. to consider in the Opinion petitioner’s contention (B.S.

_ .

17-18) raised in his petition (paragraph 10 (e)) that his

removal was ‘‘unconstitutional. ... . by violating the

‘ petitioner’s right to privacy.”? Petitioner has consistently

argued and never waived this point, and, therefore, re- ~

spectfully requests that. it be considered by the Court.

Respectfully, -

DAVID BERMAN

DB/b ~ A i AND WHITE

ec Mark E. Gallagher, Jr., City Solicitor |

Howard Miller, Esq., Asst. Attorney General

oe.

_ APPENDIX D.

SUPREME JUDICIAL COURT

Boston 8, MassacHUSETTS

Raymonp S. WiLKINs

' Chief oe

a- Le, April 15, 1969.

David Berman, Esquire

100 Salem Street , ,

' Medford, Massachusetts 02155

Dear Sir:

Your request for rehearing in case No. 14,182, Silverio v.

Municipal Court of the City of Boston, has been received

and will be considered by the full court.

Yours truly,

R. S. WILKINS |

Chief Justice

ec: Mark E. Gallagher, Jr., City Solicitor

Howard M. Miller, Assistant Attorney General

Robert J. Blumsack, Esquire ;

40,

SUPREME JUDICIAL COURT

Boston 8, Massacuuserrs

Raymonp S. WILKINS ‘A

Chief Justice

April 18, 1969

David Berman, Esquire

100 Salem Street

Medford, Massachusetts 02155

Dear Sir: ,

Your request for rehearing in case No. 14,182, Silverio v.

Municipal Court of the City of Boston, has been.considered

by the full court and-is denied. A change, however, has

been made in point’5 of the opinion.

Yours truly,

- R. S. WILKINS

Chief Justice

ce: Mark E. Gallagher, Jr.; City Solicitor

Howard M. Miller, Assistant Attorney General

Robert J. Blumsack, Esquire

“ey

13}

aD eae ee Serer ae a ae,

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.