327 Mass. 56 | Mass. | 1951
This is a petition by the mayor of the city
The proceedings now in question arise from a complaint filed with the mayor by the chief of the Beverly police department on August 22, 1949, alleging conduct on the part of Marley unbecoming an officer in that for a period of three and one half years he had sexual intercourse with a certain named married woman. On September 9, 1949, the mayor held a hearing on the complaint at which hearing Marley was represented by counsel. Marley was found guilty of the charge on September 12, 1949, and ordered discharged from the department as of twelve o’clock noon of the same day. Upon request by Marley, a hearing was held before a member of the civil service commission designated by the chairman. G. L. (Ter. Ed.) c. 31, § 43 (b), as appearing in St. 1948, c. 240. On November 16, 1949, the commissioner found that Marley was guilty and that the mayor’s action in discharging him was “justified.” On November 17 Marley was notified that the civil service commission had voted “to affirm the action of the mayor.” Marley filed a petition for review in the First District Court of Essex on December 14. G. L. (Ter. Ed.) c. 31, § 45, as appearing in St. 1945, c. 667, § 2. A hearing was held by a judge of that court, at which the case was submitted by the parties on the stenographer’s transcript of the testimony presented at the hearings before the mayor and the commissioner. No oral evidence was offered. On February 20, 1950, the judge found that the mayor was not justified in discharging Marley and that the commission was not justified in confirming the discharge. He reversed the “action” of the mayor and the commission and reinstated Marley to his office without loss of compensation. A judge of the Superior Court, after hearing on the writ of certiorari, ordered the entry of judgment “quashing the decision and orders of the” judge of the District Court. Both the judge of the
It is unnecessary to recite in detail the testimony taken at the two hearings before the mayor and the commissioner which was submitted to the judge of the District Court in the form of stenographic records. The woman who was named in the complaint was the wife of a police officer in the department in which Marley was captain. She and her husband were friends of Marley and his wife. She testified that over a period of three and one half years Marley had been in the habit of coming to her home in the absence of her husband and on forty or fifty occasions had sexual intercourse with her. She testified before the mayor that Marley had forced her to have intercourse. She also related various other indecencies on the part of Marley in both words and conduct. Before the commissioner she testified that the force to which she. referred was the force of fear as to the result of her refusal on the prospects of her husband in the department in which Marley was captain. Marley’s testimony was a complete denial of her testimony. He offered the testimony of a medical and psychiatric expert that, in
In considering this “finding” the judge of the Superior Court ruled as follows: “The statements in the paragraph of the findings filed by the special justice beginning with the words ‘It is inconceivable’ and continuing through that paragraph, in connection with granting the police officer's first and eighth requests for rulings,
There was no error in the ruling of the judge of the Superior Court or in his order that judgment be entered quashing the decision and orders of the judge of the District Court. The law applicable to proceedings of this character has recently been stated in Sullivan v. Municipal Court of the Roxbury District, 322 Mass. 566. Referring to a review before a judge of a District Court provided by G. L. (Ter. Ed.) c. 31, § 45, as appearing in St. 1945, c. 667, § 2, it was said at page 573 with supporting citations, “‘Review’ indicates ‘a re-examination of a proceeding, already concluded, for the purpose of preventing a result which appears not to be based upon the exercise of an tmbiased and reasonable judgment. It does not import a reversal of the earlier decision honestly made upon evidence which appears to an unprejudiced mind sufficient to warrant the decision made although of a character respecting the weight of which two impartial minds might well reach different conclusions, and upon which the reviewing magistrate, if trying the whole issue afresh, might make a different finding.’ Murray v. Justices of the Municipal Court of the City of Boston, 233 Mass. 186, 189. . . . ‘Justified’ in connection with ‘review’ means ‘done upon adequate reasons sufficiently supported by credible evidence, when weighed by an unprejudiced mind, guided by common sense and by correct rules of law.’ Selectmen of Wakefield v. Judge of First District Court of Eastern Middlesex, 262 Mass. 477, 482.” A portion of this language was employed by the judge of the District Court
Order for judgment affirmed.
“ 1. That upon all the evidence the action of the mayor and the civil service commission was not justified.”
“8. That the actions of the mayor and the commission were unjustified and should be reversed and the petitioner reinstated to his office of captain of police without loss of compensation.”
“4. The removal of the petitioner, Marley, as captain of police in Beverly was not based on insufficient, frivolous, or irrelevant reasons; and as the reviewing authority can find nothing in the record to contradict this, the removal of the said Marley must be affirmed.”
“6. On all the evidence before the reviewing magistrate, he must find that the removal of Harold F. Marley as police captain in Beverly was justified.”