Atterberry v. Police Commissioner

467 N.E.2d 150, 392 Mass. 550, 1984 Mass. LEXIS 1665
CourtMassachusetts Supreme Judicial Court
DecidedJuly 19, 1984
StatusPublished
Cited by6 cases

This text of 467 N.E.2d 150 (Atterberry v. Police Commissioner) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Atterberry v. Police Commissioner, 467 N.E.2d 150, 392 Mass. 550, 1984 Mass. LEXIS 1665 (Mass. 1984).

Opinion

Hennessey, C.J.

The facial constitutionality of a rule and special order of the Boston police department (department) is the focus of this appeal. The plaintiff challenged the facial constitutionality of rule 110, § 22(D), of the rules and regulations of the department (rule 110, § 22 [D]) and department Special Order No. 83-1. She sought a declaration, pursuant to G. L. c. 231A, § 1, that these regulations violated her rights under the Massachusetts and Federal Constitutions. A judge of the Superior Court ruled otherwise. He entered a judgment [551]*551declaring that the challenged rule and special order do not abridge her constitutional rights. The plaintiff appealed and we transferred the case here on our own motion. We agree with the trial judge and affirm his judgment.

The facts are not disputed.1 The plaintiff is a police officer employed by the Boston police department. On July 8, 1981, while on duty, she was involved in an automobile accident as a result of which she was seriously injured. From July 8,1981, until at least the time that the plaintiff commenced this action, she has been carried “injured on duty” by the department without loss of pay under G. L. c. 41, § 11 IF.2 Rule 110, § 22(D), in relevant part states that: “The Police Commissioner may not allow pay ... for injury on duty status . . . D. If the officer shall fail to remain at his residence unless permitted by the Police Commissioner to go elsewhere.” Pursuant to this rule, the plaintiff requested permission to leave her residence several times between July 8, 1981, and August 10, 1982. Permission to leave was sometimes granted and sometimes denied. On July 29, 1982, the plaintiff filed a complaint in the Superior Court challenging the facial validity of the rule. A judge of the Superior Court entered a temporary restraining order on August 10, 1982, requiring that permission to leave [552]*552her residence be granted to the plaintiff for certain matters.3 The department formalized and extended the mandate of this temporary restraining order in its Special Order No. 83-1, promulgated on January 5, 1983, two days before trial of the plaintiff’s claim.4 The special order narrows rule 110, § 22(D). [553]*553It provides that a police officer on injured on duty status cannot be denied permission to leave her residence for certain specified purposes, but must notify the department of certain matters before leaving and upon returning. The trial judge then allowed the plaintiff to amend her complaint to include a challenge to the special order. At the time of trial, the department had 1,778 [554]*554sworn members. Of these, 1,548 were patrol officers or detectives. Department records showed that at the time 184 sworn members of the department were on sick or injured status, of which 169 were patrol officers or detectives. Of the total figure of 184 department members, 117 had been on sick or injured status for over thirty days. Of the officers and detectives, 109 had been on sick or injured status for over thirty days.

The judge found no merit in the plaintiff’s claims. In upholding the facial constitutionality of the rule and special order, he relied primarily on the United States Supreme Court’s decision in Kelley v. Johnson, 425 U.S. 238 (1976). He observed that the standard of review applied in Kelley to determine the constitutionality of the regulations in question was whether the plaintiff could demonstrate no rational connection between the challenged regulations and the State’s police powers. Id. at 247. The judge then applied this rational connection test to the challenged rule and special order here: “The plaintiff has argued that the restrictions under which she has been placed infringe upon fundamental rights such as the right to travel. The court agrees. However, the question before the court is not whether her rights have been in some sense infringed, but whether the infringement is unlawful. . . . Applying the standard announced in [Kelley, ] supra, the court finds that the government’s interest in the expeditious return of injured officers to on-duty status provides more than ample justification for the imposition of the restrictions at issue. . . . [T]he government clearly has a significant interest in assuring that continuing on sick leave is not a more attractive alternative than returning to duty. Accordingly, it cannot be said that the regulation is arbitrary.”

The plaintiff’s argument on appeal is in three parts. She claims that the challenged rule and special order infringe upon her constitutionally protected rights, that the rational connection standard of review employed by the judge is inapplicable, and that interests asserted by the department in support of its rule and special order are not compelling. We do not address whether the asserted interests of the department are compelling as we conclude that the judge was correct in applying the [555]*555“rational connection” test announced in Kelley in reviewing the facial constitutionality of the rule and special order challenged here. We note also that while the plaintiff’s brief refers once to the Massachusetts Constitution as a basis for her claim, it contains no separate discussion of Massachusetts constitutional principles. Accordingly, we review the plaintiff’s claim solely on the basis of an alleged violation of Federal constitutional principles. See Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 919 (1975).

The single circumstance which most clearly directs our consideration of this appeal is that the challenged rule and special order relate to the plaintiff in her official capacity as a government employee. Where the constitutional rights of government employees are at issue, greater infringements have been tolerated than where those of the citizenry in general are involved. See Pickering v. Board of Educ., 391 U.S. 563, 568 (1968). For example, the Supreme Court has sustained comprehensive restrictions on First Amendment rights of both Federal and State employees. Broadrick v. Oklahoma, 413 U.S. 601, 618 (1973). United States Civil Serv. Comm’n v. National Ass’n of Letter Carriers, 413 U.S. 548, 556 (1973). Similarly, we have found that police officers could be required to answer official questionnaires regarding their private activities, at least where the private activities were “undertaken under a cloak of officialdom.” Broderick v. Police Comm’r of Boston, 368 Mass. 33, 41 (1975), cert, denied sub nom. Broderick v. DiGrazia, 423 U.S. 1048 (1976). “While government employees do not relinquish their first amendment rights when they enter public service, those rights, unlike the rights of the citizenry-at-large, are subject to the state’s paramount interest in promoting the efficiency of the public services it performs through its employees.” Hughes v. Whitmer, 714 F.2d 1407

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Howcroft v. City of Peabody
747 N.E.2d 729 (Massachusetts Appeals Court, 2001)
Pereira v. Commissioner of Social Services
733 N.E.2d 112 (Massachusetts Supreme Judicial Court, 2000)
Commonwealth v. Pike
701 N.E.2d 951 (Massachusetts Supreme Judicial Court, 1998)
Wilmarth v. Town of Georgetown
555 N.E.2d 597 (Massachusetts Appeals Court, 1990)
Voorhees v. Shull
686 F. Supp. 389 (E.D. New York, 1987)
Lee v. Commissioner of Revenue
481 N.E.2d 183 (Massachusetts Supreme Judicial Court, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
467 N.E.2d 150, 392 Mass. 550, 1984 Mass. LEXIS 1665, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atterberry-v-police-commissioner-mass-1984.