46 Mass. App. Ct. 235 | Mass. App. Ct. | 1999
In late 1988 the commissioners of Essex County recognized there would be very substantial shortfalls of revenue for fiscal 1990. The county advisory board met several times to consider how to cut the prospective budget to meet the crisis. On April 29, 1989, a budget was voted with heavy reductions of force and with various other economies. Most members of the staff of the county engineering department, including the present plaintiffs, were to be laid off. The plaintiffs received termination notices on or about May 12, 1989, effective on July 1, 1989.
The county commissioners, as employers, failed to follow the procedure of the statute in respect to these plaintiffs. The record does not explain the omission — whether sheer inadvertence or perhaps an assumption that there was no point in invoking the procedure because it was known to all that the termination was justified by the fiscal situation.
Nearly six years after the layoffs, on February 16, 1995, the plaintiff Dupont (joined shortly by the other plaintiffs) commenced the present action claiming the statutory reinstatement and back pay.
On August 9, 1996, with the present action pending in Superior Court, St. 1996, c. 306, § 19, was enacted, repealing G. L. c. 32, § 16(2). The act was without a saving clause. Relying on the repealer, the judge below denied the plaintiffs’ motion and allowed the third-party defendants’ motion and entered judgment dismissing the action. The plaintiffs appealed.
From the absence of a saving clause in the 1996 act, we can infer that the Legislature “intended” (if the word can fairly be used) not only to nullify c. 32, § 16(2), for the future, but also to abort any lawsuit under § 16(2) commenced before, and pending on, the date August 9, 1996. Indeed, that such was the legislative intention is not seriously disputed.
1. The parties spend much space wrangling over a statement by Justice Gray in New London N.R.R. v. Boston & Albany R.R., 102 Mass. 386, 389 (1869):
“[A] statute which wholly repeals an earlier one, either expressly or by implication, without any saving clause, makes it ineffectual to support any proceedings, whether not yet begun, or pending at the time of its passage, and not already prosecuted to final judgment vesting absolute rights.”
To a reader of this pronouncement more than a century later, it appears to be too sweeping to be true to the full reach of its literal boundaries, and ought to be understood in relation to its context. The court had appointed commissioners under a stand
2. In considering whether the 1996 statute repealing § 16(2) may be given effect to cancel such a right or interest as the plaintiffs then had, we follow the precepts of Carleton v. Framingham, 418 Mass. 623, 631-635 (1994), and are reminded that “a claim that a statute violates due process protections by abolishing rights retroactively
a. Nature of the rights affected.
All this apart, there is a fundamental consideration. The plaintiffs’ basic grievance is that the commissioners did not give them the required notice under § 16(2). Suppose the notice had been given. The commissioners would “justify” before the retirement board, pointing to the crisis conditions that occasioned the layoffs, and the justification would no doubt have been held good; the plaintiffs do not gainsay this. And see Shaw v. Selectmen of Marshfield, 36 Mass. App. Ct. 924, 925-926 (1994). Thus the “rights affected” were slim at most.
b. Nature of the public interest. Considering what might have
c. Scope of the statutory impact. In this and any similar cases the employees suffered the unfortunate fact of layoff with no plausible substantive ground for challenging the employer’s decision — here the decision was in fact the community action approving the budget. Unfortunate too, was the employer’s failure to hew to the simple procedure of § 16(2), but it can hardly be said that this engendered any expectation or reliance on the part of the employees which was defeated by the repealer statute. The employees presumably received retirement benefits according to law. A few years later the procedural flaw was discovered (see note 5, supra) and the employees sued to try to take advantage of it. When the Legislature acted, it halted a lawsuit, of doubtful merit in any event, which, had it succeeded, would have resulted in a windfall for the plaintiffs at public expense.
Judgment affirmed.
“The removal or discharge of any member in service classified in Group 1, Group 2 or Group 4 who has attained age fifty-five and has completed fifteen or more years of creditable service, or any member so classified who has not attained age fifty-five but who has completed twenty or more years of creditable service, or any such member who is a veteran and has completed ten or more years of creditable service, shall not become effective unless and until a written notice thereof containing a fair summary of the facts upon which such action was based has been filed with the board. The procedure set forth in subdivision (1) relative to delivery of copies, statement of service thereof, notice, hearing if requested, and the filing of a certificate of findings and decision, so far as applicable, shall apply to all proceedings involving such removal or discharge. Unless the board shall find that such removal or discharge was justified, such member shall forthwith be restored to his office or position without loss of compensation.”
Although not given the statutory notice, the plaintiffs were well informed throughout. Four of the five plaintiffs attended the official meeting at which the budget vote was taken.
The union and the county entered into a “side letter re: bumping” (for vote by the union members on April 25, 1989). Besides setting out the agreed bumping routines, the side letter provided that the union was to be responsible for notifying employees of the layoffs and their bumping rights. Around the time of the layoffs, plaintiffs waited upon union people to inquire what could be done to save their jobs; nothing eventuated.
Regina C. Mielcarz, who was president of the union local and a member of the Essex County retirement board, attended a conference in fall, 1994, of
The retirement board, with Mielcarz, O’Leary, and one other person sitting, held what amounted to pro forma meetings in early May, 1998, attended by the plaintiffs and by an attorney for the county, at which the board took votes to reinstate plaintiffs with back pay.
See Wilson v. Head, 184 Mass. 515, 518-519 (1904); Wynn v. Assessors of Boston, 281 Mass. 245, 251-252 (1932); Pittsley v. David, 298 Mass. 552, 555-556 (1937); Miller v. Emergency Horn. Commn., 330 Mass. 693, 699-700 (1953); Zuker v. Clerk-Magistrate of the Brookline Div. of the Dist. Court Dept., 423 Mass. 856, 861-862 (1996).
Implicated is due process of law as guaranteed by arts. 1, 10, and 12 of our Declaration of Rights and the Fourteenth Amendment to the United States Constitution.
The captions are drawn from the Carleton case.
The defendants also refer to the Massachusetts Labor Relations Act, G. L. c. 150E, and 456 Code Mass. Regs. §§ 15.01 & 15.03 (1993), and to limitations in regulatory statutes in the private employment field.
It would be curious to think of the right, such as it was, to a hearing that would turn out to be futile, as a “vested” right immune to repeal. The plaintiffs’ mention of G. L. c. 32, § 25(5), which characterizes pension rights and benefits as contractual, is inapposite to the particular issue at bar.
Note a tendency — without the benefit of any repealer — to interpret statutory notice and hearing provisions, where such interpretation is reasonably possible, as inapplicable where the proponent has no chance of success. See cases where teachers are dismissed because of decrease of student enrollment or for budgetary reasons: Lane v. School Comm, of Paxton, 378 Mass. 794 (1979) ; Milne v. School Comm, of Manchester, 381 Mass. 581, 582-583 (1980) ; Boston Teachers Union, Local 66 v. School Comm, of Boston, 386 Mass. 197, 214-215 (1982); cf. Haskell v. School Comm, of Framingham, 17 Mass. App. Ct. 628, 632 n.5 (1984). See also a non-teacher case, Nawn v. Selectmen of Tewksbury, 4 Mass. App. Ct. 715, 718 (1976).
Thibodeau v. Seekonk, 40 Mass. App. Ct. 367 (1996), cited by the plaintiffs, does not assist the argument for a vested right. It is simply a case where the employee enforced § 16(2) successfully (town selectmen demoted plaintiff, captain of firefighters, to rank of lieutenant without the § 16(2) notice, on
For the six years before commencement of suit, the face amount of back pay for the plaintiffs would probably well exceed $1 million. In the Carleton case, the retroactive statute, held valid in application, had the immediate result of extinguishing two judgments, each for $100,000, on which the court had already granted further appellate review. The statute had the general effect of abolishing certain negligence claims against public authorities.