CYNTHIA J. PHILLIPS vs. YOUTH DEVELOPMENT PROGRAM, INC.
Supreme Judicial Court of Massachusetts
December 28, 1983
390 Mass. 652
Hаmpden. April 7, 1983. — December 28, 1983. Present: HENNESSEY, C.J., WILKINS, ABRAMS, NOLAN, & O‘CONNOR, JJ.
A private nonprofit corporation which provided, under a contract with the Commonwealth, various innovative social services in aid of an “intensive juvenile probation program” maintained by a Juvenile Court was not performing a function traditionally reserved exclusively to the Commonwealth, so as to cause the action of thе corporation in dismissing a social worker employed by it to be attributable to the Commonwealth for purposes of the Fourteenth Amendment to the United States Constitution and
Where the action of the board of directors of a private nonprofit corporation in dismissing a social worker employed by it was not required or substantially influenced by any policy or regulation of the Commonwealth or by provisions of a contract between it and the Commonwealth under which the corporation rendered various innovative social services in aid of an “intensive juvenile probation program” maintained by a Juvenile Court, the dismissal was not attributable to the Commonwealth for purposes of the Fourteenth Amendment to the United States Constitution and
The evidence in an action by a social worker against her former employer would not warrant a conclusion that she was discharged in violation of the obligation of good faith and fair dealing inherent in her employment arrangement. [657]
This court declined to consider a plaintiff‘s contention that a broader definition of State action should be applied under
The case was heard by Keady, J., a District Court judge sitting under statutory authority.
After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.
Anne Rideout for the defendant.
Gerald R. Hegarty for the plaintiff.
WILKINS, J. In October, 1979, the defendant Youth Development Program, Inc. (YDP), discharged the plaintiff as its supervisor of supportive services in circumstances that would entitle her to relief under
The opinions in the Appeals Court — there were three — considered principles the Supreme Court of the United States had recently stated in three opinions issued on the same day. See Blum v. Yaretsky, 457 U.S. 991 (1982); Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982); Rendell-Baker v. Kohn, 457 U.S. 830 (1982). The three Supreme Court opinions, each authored by a different Justice, state tests for the determination of State аction that may not be entirely consistent. Nevertheless, based on the reasoning of the Supreme Court collectively expressed in these opinions, we conclude, in agreement with the Appeals Court, that the act of discharging the plaintiff is not State action for the purpose of
1. If a nominally private entity is performing а function that is “traditionally the exclusive prerogative of the State,” then all the acts of that entity are State action. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 353 (1974). See Blum v. Yaretsky, supra at 1011; Rendell-Baker v. Kohn, supra at 842. The evidence would not support a conclusion that YDP was performing a traditional, exclusive function of the Commonwealth. The Supreme Court has taken a
The decision to discharge the plaintiff could have been State action, even if YDP was not carrying out a traditionally exclusive prerogative of the State, if the discharge was required or substantially influenced by State policy or regulation or by YDP‘s contract with the State. The Appeals Court was correct in noting that the fact that YDP received referrals only from the court and received 100% of its financing from the State did not make the discharge State action. 14 Mass. App. Ct. at 637. Nor did the Juvenile Court‘s regulation of YDP warrant a conclusion that State action was involved in the discharge. Id. at 637-638.
The focus of an inquiry into State action must be on the Commonwealth‘s involvement in YDP‘s decision to discharge the plaintiff, and not on the over-all relationship of YDP and the Juvenile Court. There was no evidence that the Juvenile Court judge passed on this or any other individual discharge decision. The plaintiff argues that a provision in the by-laws of YDP, set fоrth in the Appeals Court opinion, id. at 638, required the Juvenile Court judge‘s approval of all termination decisions. Even if we were to accept that construction of the by-law provision, the plaintiff has failed to show that the judge‘s possible involvement rose above the level of “[m]ere approval of or acquiescence in the initiatives of a private party....” Blum v. Yaretsky, supra at 1004.
The decision to discharge the plaintiff was “not compelled or even influenced by any state regulation.” Rendell-Baker
The view taken by the Appeals Court, which we endorse, is consistent with the reasoning of recent opinions of various Federal Circuit Courts of Appeals. Unless the private entity is performing a traditional and exclusive State function, the foсus must be on whether government action was involved in the particular conduct that is challenged as wrongful. See Gilmore v. Salt Lake Community Action Program, 710 F.2d 632, 638-639 (10th Cir. 1983) (no State action in the discharge of plaintiff from a federally funded community action program, some of whose trustees were public officials); Gomez v. North Dakota Rural Dev. Corp., 704 F.2d 1056, 1058-1059 (8th Cir. 1983) (no Federal government action and hence no Fifth Amendment violation in the discharge of the plaintiff by a nonprofit corporation that had a contract with the United States Department of Labor requiring departmental approval of hiring policies); McVarish v. Mid-Nebraska Community Mental Health Center, 696 F.2d 69, 71 (8th Cir. 1982) (State action involved where plaintiff was discharged by vote of governing board, a majority of whose members were appointed by governmental units for the purpose of permitting them to supervise and allocate resources efficiently); Milonas v. Williams, 691 F.2d 931, 939 (10th Cir.), cert. denied, 460 U.S. 1069 (1982) (private residential school in which some youths were involuntarily placed by Juvenile Court authorities for rehabilitation engages in State action in its treatment of students). Only when government action is involved can it “be said that the State is responsible for the specific conduct of which the plaintiff complains” (emphasis in original). Blum v. Yaretsky, supra at 1004. Implicit in the requirement that consideration be given to the extent of the State‘s involvement in the particular act alleged to be wrongful is the possibility
2. We also agree with the Appeals Court that the evidence would not warrant a decision in favor of the plaintiff on her claim that she was discharged in violation of the imposed obligation of good faith and fair dealing inherent in her employment arrangement. See 14 Mass. App. Ct. at 639. There is no evidence that she lost reasonably ascertainable future compensation based on past services, that YDP received any financial benefit from her discharge, or that her discharge without cause was for а reason that, as a matter of public policy should be rejected as adequate ground for her discharge. See Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 667-669, 672 (1981); Fortune v. National Cash Register Co., 373 Mass. 96, 104-106 (1977).
3. In this court for the first time, in a supplemental brief filed after this court granted further appellate review, the plaintiff argues that we should adopt a broader definition of State action to be applied under the Constitution of the Commonwealth. The record and briefs demonstrate that the plaintiff did not argue to the trial judge, to the Appeals Court, or to this court in her appliсation for further appellate review that State action for State constitutional purposes may be different from State action for Federal constitutional purposes.
Although we have held that at least one constitutional right (ballot access) will be proteсted even in the absence of State action (see Batchelder v. Allied Stores Int‘l, Inc., 388 Mass. 83, 89-90 [1983]), the concept of due process of law (“the law of the land” —
4. The judgmеnt of the Superior Court is reversed and a new judgment shall be entered dismissing the action.
So ordered.
ABRAMS, J. (dissenting). There is ample record support for the judge‘s conclusion that the plaintiff‘s discharge was made in circumstances that entitle her to relief under
The plaintiff was hired in 1971 by the Juvenile Court as a social worker and assigned to the intensive juvenile probation program. In 1972, in order to increase its financial flexibility, this program was incorporated as YDP. YDP‘s incorporation was expressly approved by the Juvenile Court judge and the chief probation officer. After incorporation, the plaintiff was transferred from the court‘s staff to YDP‘s staff and sworn as a deputy probation officer of the Juvenile Cоurt. See
The court‘s view that YDP “engaged in innovative counseling, recreational and educational programs not normally associated with traditional probation,” supra at 655, is contradicted by the facts. The plaintiff‘s functions as a YDP employee were performed by her as an employee of the Springfield Juvenile Court probation department in 1971. The judge found that the plaintiff‘s services if “not identical to, complement the service[s] of the Juvenile Court Probation Department” as required by the statutes of this Commonwealth. See
The facts also support the conclusion that YDP was an integral part of the Springfield Juvenile Court, clearly a State agency. YDP had as one of its incorporators the judge of the Juvenile Court, as well as two other persons with supervisory positions with that court. At the time the plaintiff was fired, five of the nine directors were State officials or were public employees.4 I think it highly unlikely that a private contractor would have permitted a majority of its board of directors to be public officials or public employees.
The function of the Intensive Juvenile Probation Program of YDP was, as the name implied, to provide probationers with intensive probation. The program to which the plaintiff was assigned was subject “in all phases, to the final approval of the presiding justice of the Springfield Juvenile Court ... which [included] policy, programming, and persоnnel.” The judge of the Juvenile Court was YDP‘s first president, and he remained on its board until June, 1979. The functions of YDP could not be performed were it not for the power of the Juvenile Court to investigate youthful offenders, amass probation records, authorize use of these records by other public agencies, and offer youthful offen-
The plaintiff was paid by checks issued by the State Treasurer‘s office. Although the plaintiff was listed as a “nonemployee,” her W-2 statements identified the Commonwealth as her “employer” and no FICA deductions were taken from her checks. The plaintiff was given an official State title, Commonwealth letterhead and business cards, and the authority to report to the court on a child‘s behavior. The evidence supports a conclusion that there was “a close, working partnership between the Juvenile Court and the defendant in which the latter‘s freedоm of decision making was circumscribed by State officers of the Juvenile Court who possessed, and exercised, the power to approve its staffing, policies, and operating methodology.” Phillips v. Youth Dev. Program, Inc., 14 Mass. App. Ct. 626, 646 (1982) (Greaney, J., dissenting). The facts establish a sufficiently close nexus between the State and the discharge of the plaintiff so that acts of YDP may be considered those of the State. See Rendell-Baker v. Kohn, 457 U.S. 830, 838-839 n.6 (1982); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974).
This case is clearly distinguishable from Rendell-Baker, supra, and Blum v. Yaretsky, 457 U.S. 991 (1982), on which the court relies. In Rendell-Baker, the claim of State action was limited to funding and regulation. In the instant case, in addition to funding and regulation, the plaintiff was cloaked with the authority of an official of the Juvenile Court probation department and had the same responsibilities as a State court probation officer. She had access to nonpublic information. Further, the plaintiff performed the same services for YDP as she did for the court. In contrast, the school in Rendell-Baker was founded as a private institution, and no member of the board was chosen by a public official or was a public official. Nor was there any evidence that the employеes were sworn as public officials or that they exercised State authority. See Rendell-Baker, supra at 832. In Blum v. Yaretsky, supra at 1005, the con-
The State dominated YDP. The nexus between YDP and the Juvenile Court was substantial. YDP was accountable exclusively to the Juvenile Court, its employees had official State titles and had no private function. The plaintiff lost her State position as a deputy probation officer as a result of her discharge. Thus, it is irrelevant that the three court officials did not participate in the actual firing. What this court apparently now thinks is that Rendell-Baker requires the discharge be accomplished by a State official. The court‘s interpretation of Rendell-Baker is far narrower than the Supreme Court‘s view that the conduct merely be “fairly attributable to the State.” Rendell-Baker v. Kohn, supra at 838, quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). Neither Rendell-Baker nor Blum changed the prior law. In Rendell-Baker, the Supreme Court “considered each of the factors alleged by the petitioners ... [to determine whether] the discharge decisions ... [were] fairly attributable to the State.” Rendell-Baker v. Kohn, supra at 840 (e.g., funding, id. at 840; regulation, id. at 841; public function, id. at 842; and “symbiotic relationship,” id. at 842-843). The flaw in the court‘s opinion is that it fails to consider the various factors and isolates the firing from the totality of the facts. I conclude YDP‘s action in firing the plaintiff is chargeable to the State and thus constitutes State action. I would affirm the judgment of the Superior Court.
Notes
The absence of a statutory remedy for the violation of constitutional rights cannot absolutely and in all cases bar judicial protection of those rights. The Supreme Court of the United States has recognized this principle and, in the absence of special factors or an explicit alternative statutory remedy, has allowed direct actions to protect rights under the Federal Constitution. See Carlson v. Green, 446 U.S. 14, 18-19 (1980); Davis v. Passman, 442 U.S. 228, 242-243 (1979); Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 396-397 (1971).
The Supreme Court of New Jersey has recognized that, although it is desirable, there is no need for “legislative implementation to afford an appropriate remedy to redress a violation of [explicit State constitutional] rights.” Cooper v. Nutley Sun Printing Co., 36 N.J. 189, 197 (1961). See Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 76-77 (1978). The Supreme Court of California reached the same conclusion where the plaintiffs had no administrative (or other) remedy available. Gay Law Students Ass‘n v. Pacific Tel. & Tel. Co., 24 Cal. 3d 458, 475 & n.10 (1979). On the other hand, the Supreme Court of Hawaii would not allow a direct right of action for money damages against the State itself based on a claimed violation of the State Constitution. Figueroa v. State, 61 Hawaii 369, 381-382 (1979). The Supreme Court of Alaska, citing “special factors counselling hesitation” (Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, supra at 396), denied a direct action against the State housing authority. King v. Alaska State Hous. Auth., 633 P.2d 256, 260-261 (Alaska 1981). The chief probation officer of the Juvenile Court, the assistant chief probation officer, the assistant clerk magistrate of the Juvenile Court, the principal planner of the criminal justice office for the city of Springfield, and an employee of the Department of Youth Services. Three of the five were court employees.
Other State courts have concluded, unanimously as far as we can discern, that the due process provisions of their State Constitutions have an implicit requirement of State action or involvement. See USA I Lehndorff Vermoegensverwaltung v. Cousins Club, Inc., 64 Ill. 2d 11, 20-21 (1976); Campbell v. St. Mary‘s Hosp., 312 Minn. 379, 384 (1977); Federal Nat‘l Mortgage Ass‘n v. Howlett, 521 S.W.2d 428, 439 (Mo. 1975); Duffley v. New Hampshire Interscholastic Athletic Ass‘n, 122 N.H. 484, 490-491 (1982); North Carolina Nat‘l Bank v. Burnette, 297 N.C. 524, 534-535 (1979); Kennebec, Inc. v. Bank of the West, 88 Wash. 2d 718, 726 (1977). As to the general viеw that State action must be involved under equal protection of the laws clauses of State Constitutions, see Schreiner v. McKenzie Tank Lines & Risk Management Servs., Inc., 408 So. 2d 711, 715-716 (Fla. Dist. Ct. App. 1982), and cases cited, aff‘d, 432 So. 2d 567 (Fla. 1983).