Hutcheson v. Director of Civil Service

281 N.E.2d 53, 361 Mass. 480, 1972 Mass. LEXIS 913

• Court: Massachusetts Supreme Judicial Court
• Decided: March 31, 1972
• Status: Published

Opinions

Braucher, J.

Dr. Hutcheson seeks declaratory relief against the Director of Civil Service (the director), the commissioner of the Department of Mental Health (the commissioner) and Dr. Klebanoff to determine whether the commissioner is compelled by G. L. c. 31, § 23, as amended, to appoint Dr. Klebanoff to the office of assistant commissioner for children’s services, in preference to Dr. Hutcheson. A judge of the Superior Court has reserved and reported the cáse without decision on the pleadings and a statement of agreed facts.

Dr. Hutcheson is a resident of the Commonwealth, a doctor of medicine licensed to practise here, and a psychiatrist with board eligibility in child psychiatry and many years of professional experience in the field of mental health services for children. He is a World Wár II veteran under G. L. c. 31, § 21 (see G. L. c. 4, § 7, Forty-third), and holds a provisional appointment as assistant commissioner for children’s services (G. L. c. 19, § 8, inserted by St. 1966, c. 735, § 1, as amended). The commissioner considers him the best qualified of those eligible for permanent appointment to that office and would so appoint him in the absence of a statutory mandate to the contrary.

Dr. Klebanoff is an employee of the Department of Mental Health, holds a doctorate in psychology, and is a disabled veteran under G. L. c. 31, § 23A. He received a lower examination grade than Dr. Hutcheson. On April 21,1971, the director certified both as eligible, with a notation that under G. L. c. 31, § 23, Dr. Klebanoff as a disabled veteran must “be appointed and employed in preference to all other persons, including veterans. (In case, however, . . . [Dr.] Klebanoff should decline the position, the following additional name [Dr. Hutcheson] is certified.) ” On May 19, 1971, the director issued a new eligible list, containing three names: Dr. Klebanoff, with a notation that he is a disabled veteran; Dr. Hutcheson, with a notation that he is a veteran; and a third veteran, who has withdrawn his name.

Dr. Hutcheson contends that G. L. c. 31, § 23, as appearing in St. 1954, c. 627, § 5,¹ is repugnant to arts. 6 ² and 7³ of the Declaration of Rights of the Constitution of the Commonwealth and to the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. He attacks two aspects of the statute: the placing of disabled veterans ahead of other veterans on eligible lists, and the “absolute preference” in the last sentence. We consider the two aspects separately.

1. The constitutionality of a preference for veterans in public employment has had a troubled history in this court, last reviewed in Commissioner of the Metropolitan Dist. Commn. v. Director of Civil Serv. 348 Mass. 184, 187-193. The original statute concerning civil service, St. 1884, c. 320, required that the rules should provide for preference in appointments and promotions to honorably discharged veterans who served in the army or navy of the United States in time of war (§ 14, Sixth). In an opinion given to the House of Representatives in 1885, the Justices answered in the affirmative a question whether the provisions authorizing rules were constitutional but did not refer to the preference for veterans. Opinion of the Justices, 138 Mass. 601. Statute 1887, c. 437, expanded the statute to provide for the exemption of honorably discharged soldiers and sailors from civil service examinations, and the Justices in the same year declined to answer a general question submitted by the Governor and Council as to the validity of proposed rules. Opinion of the Justices, 145 Mass. 587, 592.

The leading case is Brown v. Russell, 166 Mass. 14, decided in 1896, which “has not been modified by later decisions.” Commissioner of the Metropolitan Dish Commn. v. Director of Civil Serv., supra, at 192. In Brown v. Russell this court held unconstitutional St. 1895, c. 501, §§ 2 and 6, making the appointment of veterans to the detective force of the Commonwealth’s district police compulsory, without examination, “whether the appointing power or the commissioners think they are or are not qualified to perform the duties of the office or employment which they seek” (p. 24). The court said (p. 25) that “it is inconsistent with the nature of our government, and particularly with articles 6 and 7 of our Declaration of Rights, that the appointing power should be compelled by legislation to appoint to public offices persons of a certain class in preference to all others, without the exercise on its part of any discretion, and without the favorable judgment of some legally constituted officer or board designated by law to inquire and determine whether the persons to be appointed are actually qualified to perform the duties which pertain to the offices.” The court left open the possibility that a different rule might apply to lesser employments, not amounting to public offices, or to a preference for veterans who had been found qualified either by the appointing power or by examination (pp. 23-24) : “It may be said that, other qualifications being equal, there are reasons to believe that a veteran soldier or sailor often will make a better civil officer than a person who never has been subjected to the discipline of service in war, and it is distinctly a public purpose to promote patriotism, and to make conspicuous and honorable any exhibition of courage, constancy, and devotion to the welfare of the State, shown in the public service.”

Later the same year the Justices were asked their opinion with respect to a statutory provision that veterans who pass a civil service examination shall be preferred in appointment to all male persons not veterans. Opinion of the Justices, 166 Mass. 589. A majority of four justices answered that the provision was constitutional, while a minority of three thought not. Both opinions relied on the reasoning of Brown v. Russell, supra. In Mayor of Lynn v. Commissioner of Civil Serv. 269 Mass. 410, 414, decided in 1929, the court adopted the opinion of the majority of the Justices in the 1896 Opinion of the Justices “as the judgment of the court in the present case,” citing also Ransom v. Boston, 192 Mass. 299, 304 (preference for veterans “was within the power of the Legislature”); Phillips v. Metropolitan Park Commn. 215 Mass. 502, 506 (constitutionality “much debated” and “cannot go beyond closely confined boundaries”); Corliss v. Civil Serv. Commrs. 242 Mass. 61, 65 (“there are constitutional limitations to preferences in favor even of veterans”); Rich v. Mayor of Malden, 252 Mass. 213, 215 (“The Legislature can confer on [certain] veterans ... a preference in the classified civil service”). See Barnes v. Mayor of Chicopee, 213 Mass. 1, 4 (“not necessary to consider” attack on veteran preference provisions, which “are distinct and severable from the rest of the statute”).

The Mayor of Lynn case and the 1896 Opinion of the Justices have since been accepted by this court as authoritative. Canty v. City Council of Lawrence, 275 Mass. 261, 263. Goodale v. County Commrs. of Worcester, 277 Mass. 144, 147-148. Malloy v. Mayor of Peabody, 299 Mass. 110, 114. Opinion of the Justices, 303 Mass. 631, 647-649. Younie v. Director of Div. of Unemployment Compensation, 306 Mass. 567, 570. MacCarthy v. Director of Civil Serv. 319 Mass. 124. Opinion of the Justices, 320 Mass. 773, 781. Smith v. Director of Civil Serv. 324 Mass. 455, 460-461. Opinion of the Justices, 324 Mass. 736, 742. McNamara v. Director of Civil Serv. 330 Mass. 22, 25-26. Commissioner of the Metropolitan Dist. Commn. v. Director of Civil Serv. 348 Mass. 184, 187-192. Nothing we say here is intended to impair that authority or to reopen the questions decided in the Mayor of Lynn case, supra.

2. The additional preference for disabled veterans now found in G. L..c. 31, § 23, was introduced by St. 1922, c. 463. So far as it requires that the names of disabled veterans who pass the civil service examination and are not physically disqualified be placed ahead of other veterans on eligible lists, the statute was held constitutional in Smith v. Director of Civil Serv. 324 Mass. 455, 460-461: “The petitioners contend that the disabled veterans’ preference exceeds the permissible bounds of legislative power. It is argued that it cannot be said that a disabled veteran is more qualified for public service by his experience than is one not disabled, and that the quality of patriotism is ‘not enhanced by the situation in which almost nobody, except a disabled veteran, can be appointed to a position in the civil service.’ We think, however, that it is open to the Legislature to say that, whereas all veterans may be preferred because of their service in uniform, the public interest is served by additionally preferring those who have incurred disability in the course of their service.”

Decisions of this court both before and after the Smith case have had some limiting effect on the preference for disabled veterans. Hayes v. Hurley, 292 Mass. 109, 112-113 (valid appointment of another not affected by subsequent certification that applicant was a disabled veteran). Younie v. Director of Div. of Unemployment Compensation, 306 Mass. 567, 571-572 (disabled veteran subject to discharge during probationary period). MacCarthy v. Director of Civil Serv. 319 Mass. 124, 126 (preference for disabled veterans not applicable to promotions) . Riceman v. Commissioners of the Dept. of Pub. Util. 321 Mass. 318, 320-321 (disabled veteran subject to probationary period on reappointment after interval of Federal service). Commissioner of the Metropolitan Dist. Commn. v. Director of Civil Serv. 348 Mass. 184, 197 (appointing authority need not appoint disabled veteran as a patrolman in view of pardoned conviction of armed robbery). Seskevich v. City Clerk of Worcester, 353 Mass. 354, 356 (appointing authority may appoint second disabled veteran on eligible list instead of first). Starr v. Board of Health of Clinton, 356 Mass. 426, 429-431 (appointing authority need not appoint disabled veteran in view of conflict of interest). But those decisions have not reopened the constitutional question decided in the Smith case.

Dr. Hutcheson now argues that the whole justification for a preference for veterans rests upon possible legislative determinations (1) that their service gives veterans higher qualifications, and (2) that to honor veterans may induce others to follow their example. He argues further that additional preference for disabled veterans serves neither purpose, and that a grant of public employment as a reward for past service is not constitutionally permissible. General Laws c. 31, § 23A, defines “disabled veteran” to require a continuing disability which does not prevent the efficient performance of the duties of the position sought, and to include anyone eligible to receive compensation from the veterans’ administration for a service-incurred disability of not less than ten per cent based on wartime service. Thus, he argues, the determination of eligibility for the preference is delegated to a Federal agency, and the result is that it has no relation to combat service, to fitness for the public service, or to inducement of patriotic service. No one, he says, contemplates voluntarily attaining the status of disabled veteran; that status reflects, not valor or devotion but the sheerest accident, both as to incurring disability and as to recovery therefrom. Since these arguments were not made in the Smith case and were not discussed by the court, he asks us to consider them now.

We think Dr. Hutcheson understates the impact of the preference for disabled veterans as an inducement to patriotic service. The Legislature might conclude that men who are willing and indeed eager to serve in the armed forces in time of war may hesitate in view of their obligations to their dependents and the risks of disabling injury, whether from combat, from training accident, or from other causes. The Legislature might think that a practice of preference for disabled veterans would mitigate such hesitation, to the common benefit. Moreover, having identified a class which should be preferred on other grounds, we think the Legislature may properly take into account the factor of need, “to make more equal the race of life,” so long at least as it provides safeguards to insure that the efficient operation of the public service will not be impaired. See Matter of Sullivan v. Hoberman, 34 App. Div. 2d (N. Y.) 6, 11, affd. 28 N. Y. 2d, 667; Wilczynski v. Harder, 323 F. Supp. 509, 520 (D. Conn.). In defining the limits of the preferred class, the Legislature must be accorded a large discretion. See Pinnick v. Cleary, 360 Mass. 1, 27-31, and cases cited. We adhere to the decision in the Smith case.

3. We come now to the “absolute preference” contained in the last sentence of G. L. c. 31, § 23, as appearing in St. 1954, c. 627, § 5. ⁴ That sentence, which was enacted when the preference for disabled veterans was first established in 1922, has been before this court several times, but on each occasion we refrained from passing on the constitutionality of that part of the section “which purports to give to a disabled veteran absolute preference over all other persons including veterans in appointment to office.” Hayes v. Hurley, 292 Mass. 109, 113. Smith v. Director of Civil Serv. 324 Mass. 455, 460. Commissioner of the Metropolitan Dist. Commn. v. Director of Civil Serv. 348 Mass. 184, 192-193.

The preference for disabled veterans is not, of course, “absolute” in the sense used in Brown v. Russell, 166 Mass. 14, 26, and Opinion of the Justices, 166 Mass. 589, 595; the disabled veteran must pass an examination for appointment and must present a doctor’s certificate, approved by the director, that his disability is not such as to prevent the efficient performance of the duties of the position sought. See Matter of Potts v. Kaplan, 264 N. Y. 110, 115. Even after he is properly on the eligible list, the appointing power may in some circumstances refrain from appointing him on the ground that he is unfit or unsuitable. Commissioner of the Metropolitan Dist Commn. v. Director of Civil Serv., supra, 193. Starr v. Board of Health of Clinton, 356 Mass. 426, 431. If he is found to be qualified, however, the preference which the statute purports to grant is properly described as “absolute.”

The statute approved in the 1896 Opinion of the Justices, 166 Mass. 589, contained a similar preference for veterans over nonveterans which was “absolute” in the same sense. In adopting the reasoning of the 1896 opinion, this court said that “it reaches close to the limit of legislative power.” Mayor of Lynn v. Commissioner of Civil Serv. 269 Mass. 410, 414-415. See Opinion of the Justices, 324 Mass. 736, 742; Commissioner of the Metropolitan Dist. Commn. v. Director of Civil Serv., supra, 190-193, and cases cited. The actual situation in the Mayor of Lynn case, however, was that an eligible list of three veterans had been certified for appointment in the fire department of the city in accordance with the rules of the civil service commissioners; the commissioners refused to certify in addition the name of the person receiving the highest grade on the examination because he was not a veteran.

The “absolute preference” for qualified veterans over qualified nonveterans was eliminated from the statutes by revisions in 1919 and 1920, but remained in the civil service rules until 1922. In that year we held that the provision in the rules was “obviously inconsistent with the existing civil service statute.” Corliss v. Civil Serv. Commrs. 242 Mass. 61, 65. The appointing authority must make appointment from an eligible list. But as was said in Seskevich v. City Clerk of Worcester, 353 Mass. , by reason of par. C of G. L. c. 31, § 15 (as appearing in St. 1964, c. 720, § 1), “if the appointing authority appoints a person other than the person highest on the list, it must deliver a statement of reasons to the director and no such appointment shall be effective until such statement is received. The preference to disabled veterans does not distinguish among those on the eligible list who are in that class.”

Thus the present situation is that there is no “absolute preference” of qualified veterans over qualified nonveterans. Nor is there any “absolute preference” as between two veterans on an eligible list, or as between two disabled veterans on an eligible list. For the reasons asserted by Dr. Hutcheson and summarized under point two above, we think the reasons for preferring .a disabled veteran to other veterans are less compelling than the reasons for preferring veterans to nonveterans. We therefore have difficulty in articulating a rational ground for an “absolute preference” of disabled veterans over other veterans when there is no such preference for veterans over nonveterans.

The 1971 amendment (fn. 4 above), however, reduces the likelihood that the broad question of the validity of the “absolute preference” for disabled veterans will arise in the future. We therefore confine our decision to the facts before us, which dramatically highlight the adverse impact of the “absolute preference” on the efficient operation of the public service. The question here is not one of adding one more fireman to a fire department, but of appointing one of the commissioner’s principal assistants, important enough to warrant a separate section of the General Laws to define his qualifications and duties. Compare Bingham v. Bach, 151 Colo. 332, 333-334; Carey v. Morton, 297 N. Y. 361, 367. The record sheds no light on the nature of Dr. Klebanoff’s disability or on its tendency to increase his qualifications for the office, nor does it disclose why this is not a case of promotion, to which the preference would not apply. There are not dozens of qualified applicants, but two, and the effect of the statute is to deny to the commissioner any discretion as to who may be appointed. Compare Matter of Neubeck v. Bard, 275 N. Y. 43, 47-48. We think the operation of the statute in these circumstances is capricious and contrary to arts. 6 and 7 of the Declaration of Rights.

4. In view of the conclusion thus reached, it is unnecessary for us to pass on the effect of the Fourteenth Amendment to the Constitution of the United States, which seems to be less restrictive than our Declaration of Rights. Smith v. Director of Civil Serv. 324 Mass. 455, 461, and cases cited. See McGowan v. Maryland, 366 U. S. 420, 425-426; White v. Gates, 253 F. 2d 868, 869-870, cert. den. 356 U. S. 973; Wilczynski v. Harder, 323 F. Supp. 509, 520-521 (D. Conn.); Matter of Potts v. Kaplan, 264 N. Y. 110, 114; Matter of Bateman v. Marsh, 188 Misc. (N. Y.) 189, 195-198, affd. 271 App. Div. (N. Y.) 813, affd. 296 N. Y. 849.

5. A decree is to be entered (a) declaring that the absolute disabled veterans’ preference provided by the last sentence of G. L. c. 31, § 23, as appearing in St. 1954, c. 627, § 5, in the circumstances of this case, is contrary to arts. 6 and 7 of the Declaration of Rights of the Constitution of Massachusetts, and (b) ordering the commissioner to appoint an assistant commissioner for children’s services from the eligible list certified on May 19, 1971,. without regard to the last sentence of G. L. c. 31, § 23.

So ordered.

1 “The names of persons who pass examinations for appointment to any position classified under the civil service shall be placed upon the eligible lists in the following order: — (1) Disabled veterans . . . in the order of their respective standing; (2) veterans in the order of their respective standing; ... (4) other applicants in the order of their respective standing. ... A disabled veteran shall be appointed and employed in preference to all other persons, including veterans.”

2 “No man, nor corporation, or association of men, have any other title to obtain advantages, or particular and exclusive privileges, distinct from those of the community, than what arises from the consideration of services rendered to the public .. ..”

3 “Government is instituted for the common good; for the protection, safety, prosperity, and. happiness of the people; and not for the profit, honor, or private interest of any one man, family, or class of men____”

4 Statute 1971, c. 1051, § 1, struck out the words in brackets and inserted those in italics: “A disabled veteran shall be [appointed and employed] retained in employment in preference to all other persons, including veterans.” But § 3 of St. 1971, c. 1051, makes the amendment inapplicable to any civil service list in existence on November 15,1971, the effective date of the amending statute.