6 Mass. App. Ct. 605 | Mass. App. Ct. | 1978
The plaintiffs in this action are permanent members of the police force of the town of Yarmouth (town) who, following a hearing conducted by the board of selectmen of the town, have been suspended from duty without pay for a period of ten days. They have appealed from a judgment of the Superior Court which dismissed the action as to all three counts of the amended complaint (complaint). We consider each count separately.
1. It appears from the face of the pleadings that each of the plaintiffs is entitled to whatever benefits were intended to be conferred on him by the provisions of St. 1970, c. 267, § l,
There is no merit to the contention. On its face St. 1970, c. 267, § 1, admittedly speaks only in terms of the removal of police officers for cause. However, the town’s police force is established under the provisions of G. L. c. 41, § 97A,
Count 1 of the complaint presented a pure question of law which could be decided under Mass.R.Civ.P. 12(c) and (d), 365 Mass. 756 (1974), on the face of the pleadings and on the representation of the plaintiffs’ counsel with respect to the applicability of G. L. c. 41, § 97A. That question was decided correctly, and the action was properly dismissed as to count 1.
2. The principal allegations of count 2 of the complaint are to the effect that the plaintiffs have been deprived of due process in violation of both constitutions; that the selectmen acted in excess of their jurisdiction; that their decision was based upon error of law; that the selectmen violated the provisions of G. L. c. 30A, § 11B;
The only reason for dismissing the action as to this count which is still pressed by the defendants
It does not follow that the judge was correct in dismissing as to this count. It is clear that contentions as to the validity of a disciplinary decision of a board of selectmen such as those set out in the allegations which have been summarized above can be considered and determined by what is now the Superior Court Department of the Trial Court in proceedings which blend prayers for declaratory relief with an action in the nature of certiorari. Stetson v. Selectmen of Carlisle, 369 Mass. 755, 756-759 (1976). See also Human Rights Commn. v. Assad, 370 Mass. 482, 488 n.5 (1976); Boston Edison Co. v. Boston Redev. Authy., 374 Mass. 37, 46-50 (1977); Fairbairn v. Planning Bd. of Barnstable, 5 Mass. App. Ct. 171, 181 n.5 (1977). The judge appears to have overlooked the specific prayer for declaratory relief with respect to the matters alleged in this count and the general rule against dismissing declaratory judgment proceedings which are within the jurisdic
3. Count 3 of the complaint contains allegations by which the plaintiffs seek to fasten personal liability on one of the selectmen
The judgment is affirmed as to count 1 but reversed as to counts 2 and 3; the action is remanded to the Superior Court Department for further proceedings not inconsistent with this opinion; costs of appeal are not to be awarded to any party.
So ordered.
"The tenure of office of any permanent member now or in the future of the police force of the town of Yarmouth who has, or shall have, served as a member of said police for three consecutive years ... shall be unlimited until he attains age sixty-five and he shall hold office during good behavior unless he is incapacitated by physical or mental disability from performing his duties or is removed for cause by the selectmen in the manner provided by section forty-three of chapter thirty-one of the General Laws.” We need not and do not decide whether the selectmen were required to proceed under that section in the circumstances of this particular case.
Counsel for the plaintiffs so represented to the judge by whose order the action was dismissed.
The plaintiffs may have intended to refer to what is now G. L. c. 39, § 23B, as most recently amended by St. 1977, c. 829, § 3.
To be specific, at oral argument counsel for the defendants expressly abandoned their earlier contention that the plaintiffs were barred from maintaining this count by reason of the concluding clause of G. L. c. 150E, § 8.
As in the Stetson case, the plaintiffs may wish to sharpen their allegations by amendment of this count. See 369 Mass. at 758-759.
See note 2, supra.
See also St. 1978, c. 512, § 16.