26 Mass. App. Ct. 724 | Mass. App. Ct. | 1988
On January 11,1978, following a hearing, the Labor Relations Commission discharged the plaintiff, Lally, from her position as a labor relations examiner due to her record of repeated violations of the commission’s attendance and time policies. On appeal to the Civil Service Commis
On March 3, 1981, Lally filed in the Superior Court the complaint that gives rise to the instant appeal — a complaint for relief in the nature of certiorari, seeking review of the District Court’s decision that had been rendered a year before. See G. L. c. 249, § 4, as in effect prior to St. 1986, c. 95.
In 1986 the case surfaced on a trial list and was set down for a pretrial conference February 24. An assistant attorney general, alerted by a phone call from the Dorchester District Court,
At the March 11 hearing the assistant attorney general raised for the first time several procedural points: that service of process had been improper; that service had not been made until after the expiration of the statute of limitations applicable to certiorari actions (see note 4, supra)', and that the Civil Service Commission and the Labor Relations Commission should have been named as parties defendant and been served. The judge mled that the arguments were raised too late. He stated, however, that, if service had not been made in accordance with law (he thought that it had), he would in light of the delay (the action now being five years old and the discharge, eight years old), exercise his discretion to order the action dismissed. An order — in effect a judgment — was entered remanding the case to the District Court for the entry of an order remanding to the Civil Service Commission, where a new decision was to be entered requiring reinstatement of Lally in her position as labor relations examiner and computing (and ordering payment of) net back pay lost from the time of discharge. Following a timely appeal by the District Court and the allowance, for purposes of appeal only, of motions to intervene by. the Civil Service Commission and the Labor Relations Commission, the judge framed a report of questions bearing on the correctness of the orders entered.
This is such a case. Where a court is named a defendant in a lawsuit, service upon it must be made in accordance with the requirements of Mass.R.Civ.P. 4(d)(3) as amended, 370 Mass. 918 (1976). Thus, service must be made:
“Upon the Commonwealth or any agency thereof by delivering a copy of the summons and of the complaint to the Boston office of the Attorney General of the Commonwealth, and, in the case of any agency, to its office or to its chairman or one of its members or its secretary or clerk. Service hereunder may be effected by mailing such copies to the Attorney General and to the agency by certified or registered mail.” (Emphasis supplied.)
Lally’s contention that the District Court is neither “the Commonwealth” nor an “agency” of the Commonwealth — a term she would confine to agencies in the executive branch — is manifestly unsound. Subparagraphs (1) through (5) of rule 4(d) are intended to be exhaustive of the categories of entities subject to suit in the Commonwealth’s courts, and a court fits into none of the other categories.
We need not decide whether delivery of a copy of the complaint and summons to the District Court was essential to valid service. Delivery to the office of the Attorney General was essential to valid service, and it was not done. It is no answer to say that the District Court should have forwarded its copy to the Attorney General.
There is a further reason why judgment could not properly be entered against the District Court in the present posture of the case. The District Court’s role in the case was purely adjudicatory. It was, by definition, disinterested. The judicial tribunal is the traditional defendant in a certiorari action, Marcus v. Commr. of Public Safety, 255 Mass. 5, 8, (1926), but it is, nevertheless, a nominal party only. The real parties in interest in this action (in addition to Lally) were the Labor Relations Commission, as the employer who discharged Lally, and the Civil Service Commission, whose role is hybrid: adjudicatory, in the sense- that it is the impartial finder of the
The judge indicated that, if, in fact, service was defective, he would order the action dismissed. There is no injustice in such a dismissal. We have the critical components of the record, including the detailed specifications against Lally, the findings of the Labor Relations Commission, the decision of the hearing examiner with her description of the evidence before her, the
The judgment is reversed, and a new judgment is to be entered denying relief in the nature of certiorari.
So ordered.
The discharge was affirmed by a three-to-two vote, two commissioners taking the position that discharge was an excessive penalty. There was no dissent as to the factual basis for disciplinary action.
General Laws c. 31, § 44, as appearing in St. 1978, c. 393, § 11, gives jurisdiction to “the district court for the judicial district wherein [the plaintiff] resides.” Lally resides in Dorchester.
Statute 1986, c. 95, shortened the time within which review by certiorari might be sought from two years, measured from the date of decision, to sixty days.
An affidavit was filed in March, 1986, by the chief of the government bureau in the office of the Attorney General, stating that nothing relating to the case had been received by that office until the telephone notification of the pretrial conference on February 24. The affidavit was not controverted nor (for a reason that is discussed below) is its assertion dubious. See Farley v. Sprague, 374 Mass. 419, 424-425 (1978).
The phone call apparently followed a telephone call from Tally’s counsel to the District Court to notify it of the February 24 pretrial conference.
The other categories are: (1) individuals; (2) domestic corporations, foreign corporations, and unincorporated associations; (4) counties, cities, towns, and other political subdivisions of the Commonwealth; and (5) authorities, boards, committees, or similar entities, subject to suit under a common name.
The better practice, of course, is for any Commonwealth officer to forward any process served upon him forthwith to the Attorney General’s office. See G. L. c. 12, § 3, third sentence. A failure in this regard, however, does not excuse the plaintiff from his obligation to make proper service.
Adding to G. L. c. 249, § 4, the following: “Where a petition is brought against a body or officer 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 proceedings already taken, such other party may be joined as a party 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 . . . .”