Solomon J. Upshaw v. Edmund L. McNamara Commissioner of Police For The City of Boston, Massachusetts, 435 F.2d 1188, 1st Cir. (1970)
Uploaded by
Scribd Government DocsSolomon J. Upshaw v. Edmund L. McNamara Commissioner of Police For The City of Boston, Massachusetts, 435 F.2d 1188, 1st Cir. (1970)
Uploaded by
Scribd Government Docs435 F.
2d 1188
Solomon J. UPSHAW, Plaintiff, Appellant,
v.
Edmund L. McNAMARA, Commissioner of Police for the City
of Boston, Massachusetts, Defendant, Appellee.
No. 7652.
United States Court of Appeals, First Circuit.
December 18, 1970.
Frederick L. Brown, Boston, Mass., with whom Owens, Dilday & Brown,
Boston, Mass., was on brief, for appellant.
John A. Fiske, Boston, Mass., for appellee.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
COFFIN, Circuit Judge.
Appellant was convicted of a felony and subsequently given a full pardon by
the state of Massachusetts. In 1967, he sought appointment to the Boston Police
Department. His score on the civil service examination was sixth best of all the
applicants for the 56 positions, and he indicated that he would accept an
appointment if one were forthcoming. He was told to await notification of his
appointment from the Commissioner of Police for the City of Boston,
defendant and appellee. Hearing nothing, he initiated inquiries at police
headquarters. There he was informed that the Commissioner had not appointed
him because of his criminal record.1 Appellant, at the suggestion of a police
detective, wrote the Commissioner and requested a hearing, but the
Commissioner denied the request, indicating that he saw no reason for granting
such a hearing. Subsequently, appellant brought an action in district court,
alleging that his constitutional rights had been violated. His complaint was
dismissed as failing to state a cause of action under 42 U.S.C. 1981, 1983,
and he appeals to this court.
Appellant raises four constitutional issues concerning the Commissioner's
failure to grant his appointment because of his criminal record. First, he says
that the Massachusetts statute which prohibits the appointment of felons to the
police force is a bill of attainder. Mass.Gen.L.Ann., ch. 41, 96A. But the
Massachusetts Supreme Judicial Court has construed this statute as not
constituting an absolute barrier to felons who have been pardoned.
Commissioner v. Director, supra note 1. Appellant argues further that the law
as applied by the Commissioner has the same effect as a bill of attainder.2 But
the felony conviction disqualification for a police appointment, whether
absolute or not, cannot be considered a bill of attainder unless it constitutes an
unreasonable basis of ineligibility. United States v. Brown, 381 U.S. 437, 454
n. 29, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965). We cannot say that the
commission of a felony evidenced by a conviction, is any less reasonable a
basis for disabling one to serve as a policeman than to vote, Trop v. Dulles, 356
U. S. 86, 96-97, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958), or to practice medicine,
Hawker v. New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002 (1898), or in
serving in other capacities important to the public interest, DeVeau v. Braisted,
363 U.S. 144, 159, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (1960).
3
Appellant's second claim is that he was denied equal protection of the law. Best
stated, his claim is that the Commissioner refuses to appoint any pardoned
felons and that he does not administer the law so as to afford them treatment
equal to that afforded other applicants.3 We note initially that a classification
based on criminal record is not a suspect classification. See, e. g., Hunter v.
Erickson, 393 U.S. 385, 392, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969); Levy v.
Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968); Korematsu v.
United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944); and generally
Note, Developments in the Law Equal Protection, 82 Harv.L.Rev. 1065,
1087-1091 (1969). Thus such a classification does not require the rigid scrutiny
that suspect classifications bring forth. We can easily see a rationale for a
policy decision not to hire persons who have been convicted of felonies even
though they have been pardoned; a person who has committed a felony may be
thought to lack the qualities of self control or honesty that this sensitive job
requires. 4 Cf. Bruns v. Pomerleau, 319 F.Supp. 58 (D.Md.1970). Such a
classification would withstand the restrained review we give to most
administrative or legislative decisions. Cf. McGowan v. Maryland, 366 U.S.
420, 426, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). We think no closer review is
called for in this case because there is no allegation that any fundamental right,
such as the right to vote, has been violated. E. g., Harper v. Virginia State
Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966). The
opportunity to obtain employment is important and were the classification
facially unreasonable a closer examination might be called for. See
Developments in the Law Equal Protection, supra at 1120-1131. But even
fundamental rights, such as the right to vote, have traditionally been denied to
felons. Cf. Trop v. Dulles, supra, 356 U.S. at 96, 78 S.Ct. 590. DeVeau v.
Braisted, supra, 363 U.S. at 159, 80 S.Ct. 1146.
4
Although the Commissioner's automatic disqualification of all felons, even
though pardoned, may withstand limited review, appellant argues that it is
unreasonable and arbitrary and hence a denial of substantive due process
because the Massachusetts Supreme Judicial Court has rejected it in
Commissioner v. Director, supra. In making this argument, however, appellant
overstates Massachusetts law. In Commissioner v. Director the court did say
that the absolute disqualification imposed by statute on pardoned felons is
removed by a full pardon. Nevertheless, it went on to recognize the strong
legislative policy, manifested by the statute, against entrusting persons
convicted of felonies with the duties of police officers, concluding:
"The obvious inappropriateness of appointing as a police officer one previously
convicted of felony, even though later pardoned (for grounds other than his
innocence), was ample justification for the commissioner's refusal to appoint
O'Handley." 348 Mass. at 197, 203 N.E.2d at 103.
The Massachusetts law would seem to be that, for the protection of those
pardoned because of innocence, pardoned felons cannot be excluded from the
list of those eligible for appointment, but that the Commissioner can, as a
matter of policy, refuse to appoint all those whose pardons were granted for
grounds other than innocence. He is not required to do so, however, and if he
chooses he can consider the applications of those pardoned on other grounds.
But such applicants have a "heavy burden" of satisfying the Commissioner of
their suitability. We conclude that an automatic refusal to appoint appellant,
who does not allege he was pardoned because of innocence, is both consistent
with the requirements of Massachusetts and reasonable under the limited review
we give such rules.
Appellant's final argument is a procedural due process claim. To consider
appellant's claim in the best light, we assume, contrary to our assumption when
we considered his other arguments, that the Commissioner's rule is that he will
not, as a policy matter, exclude felons pardoned for reasons other than
innocence, but he will appoint them if they can sustain the "heavy burden" of
satisfying him of their qualifications.5 Appellant argues that the process of
considering such applications is unfair and that he has been denied a hearing
before the Commissioner in which he could attempt to carry that "heavy
burden". We are required to balance the interests of appellant and of the
Commissioner in considering this due process claim.6 The Commissioner seeks
to secure honest and reliable appointees to one of the most sensitive and
difficult jobs that exists. Appellant's interest in the appointment is slight;
Massachusetts law grants him at most the opportunity to be appointed if the
Commissioner is convinced of his qualifications. Because of his status as a
pardoned felon, his protected interest is significantly less than that of an
ordinary applicant with the same civil service rating. As an applicant, his
protected interest is also less than the employees in Drown, supra note 6, and
Medoff v. Freeman, 362 F.2d 472 (1st Cir. 1966), who had already been
employed on a probationary basis and who had thus given up other potential
jobs in hopes that they could continue their employment. In those cases, when
we balanced the interests of the probationary employees with those of their
employers, we concluded that the employees were not entitled to a trial-type
hearing, but were entitled only to reasons for the decision not to rehire them.
Here, appellant has been informed of the reasons why he was not appointed,7
and was also afforded the opportunity to challenge that decision in writing.
Moreover, on the assumption that the Commissioner's policy is to appoint
pardoned felons who successfully carry the heavy burden of satisfying him as
to their qualifications, there is nothing to suggest that, had appellant alleged
sufficient reasons in his written request, he could not have obtained a hearing.
8
Finally, we note that the issues involved in this case might have best been
raised in another forum. The rights with which appellant is primarily concerned
are the rights of pardoned felons under Massachusetts law. Federal issues are at
best secondary and hinge upon our interpretation of state law. Since there is
only one Massachusetts case which treats this issue and then only briefly, we
are handicapped in our interpretation; in future cases Massachusetts might
expand the rights of pardoned felons. Moreover, Massachusetts might seek to
afford appellant more procedural protection than we think the federal
Constitution requires. In the future we would be tempted to abstain from
deciding similar cases in which the federal rights were secondary and based on
rights granted by the state, particularly if an alternative state forum were
available to the plaintiff. See C. Wright, Law of Federal Courts, 52 (2d ed.
1970); Note, Limiting the Section 1983 Action in the Wake of Monroe v. Pape,
82 Harv. L.Rev. 1486 (1969). But see Chevigny, Section 1983 Jurisdiction: A
Reply, 83 Harv.L.Rev. 1352 (1970).
Affirmed.
Notes:
1
The Commissioner has the power to deny appointment to someone where there
are reasonable grounds to regard that person's "character or past conduct as
rendering him unfit and unsuitable to perform the duties of office."
Commissioner of Metropolitan District Commission v. Director of Civil
Service, 348 Mass. 184, 193, 203 N.E.2d 95, 101 (1964). [Hereinafter cited as
Commissioner v. Director.] This case is discussed at length,infra.
2
Appellant's argument here, and elsewhere, assumes that his felony conviction
was the sole reason for the Commissioner's decision. Yet, in his complaint and
in his brief, he alleges that the reason given for the Commissioner's decision
was his "record". His "record", which we take to mean criminal record,
included more than the felony conviction; he had also been convicted of a
serious misdemeanor, assault and battery. Thus, appellant's arguments, which
turn on the fact that he was pardoned for his felony conviction, may not be
complete because he fails to consider the effect of the misdemeanor conviction
on his qualifications. Nevertheless, we have given appellant the benefit of the
doubt mainly because the appellee makes little use of the misdemeanor
conviction and have assumed with him in reviewing the dismissal of his
complaint, that he has alleged that the felony conviction alone was behind the
Commissioner's decision
Appellant's actual claim is unclear. He may be saying that equal protection is
violated if a pardoned felon cannot become a police officer in Boston but can
become a policeman in other towns in Massachusetts. As an equal protection
argument, this claim has no merit. Equal protection does not require that every
subdivision of a state have identical requirements for employment. If Boston so
assesses the physical demands of a policeman's job as to require a statute of five
feet ten inches, but Worcester judges those demands satisfied by officers who
are five feet eight, Boston does not deny equal protection to persons who are
five feet eight or five feet nine. If Boston's requirements violated state law or
were patently unreasonable, they may violate due process or, under one
interpretation, discussedinfra, equal protection. But equal protection does not
forbid governments from treating different people differently, as long as there is
a rational basis for the different treatment.
If the Commissioner had flatly refused to consider appellant and if appellant
had been pardoned because of innocence, this would be a quite different case.
Appellant does not claim, however, that he was pardoned because of innocence
The term "heavy burden" is the Massachusetts court's. Commissioner v.
Director,supra at 196, 203 N.E.2d 95. Contrary to appellant's contention, the
term is not used to imply that a forum must be provided in which appellant can
satisfy that burden; in context the term is used to explain the wide discretion of
the Commissioner. Appellant's "heavy burden" is a burden of "satisfying". The
court's sustaining the Commissioner's automatic refusal, without a hearing to
appoint any felon, not pardoned because of innocence, is inconsistent with the
supposition that any procedural rights are implied.
6
For a more complete discussion of judicial review of procedural due process
claims, see our opinion in Drown v. Portsmouth School District, 435 F.2d 1181
(1st Cir. 1970), which we also decide today
We note in passing that appellant was required to seek out not only the reasons
for the decision, but also whether or not the decision has been made. Since he
did ultimately receive that information, he was not prejudiced, but we think that
future applicants should not have to take the steps appellant took in order to
learn whether or not they have been appointed
You might also like
- No ratings yetJoseph Biehunik v. Frank N. Felicetta, Commissioner of Buffalo Police Department, Thomas R. Blair, Deputy Commissioner of Buffalo Police Department, Howard R. Wheeler, Inspector, Buffalo Police Department, Charles Devoe and Karl Muehlbauer, Both Captains of the Buffalo Police Department, 441 F.2d 228, 2d Cir. (1971)7 pages
