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09/16/77 HELEN B. FEENEY v. COMMONWEALTH & ANOTHER

September 16, 1977

HELEN B. FEENEY
v.
COMMONWEALTH & ANOTHER



Suffolk. Question of law certified to the Supreme Judicial Court by the Supreme Court of the United States.

Hennessey, C.j., Braucher, Wilkins, Liacos, & Abrams, JJ.

SYLLABUS BY THE COURT

Attorney General. Constitutional Law, Executive and administrative departments of the Commonwealth.

The opinion of the court was delivered by: Liacos

The Massachusetts Attorney General is acting within his authority under Massachusetts law in prosecuting an appeal to the United States Supreme Court from a judgment of the United States District Court, District of Massachusetts, against State officers whom he represented in the District Court proceedings, notwithstanding the officers' lack of consent and over their expressed objections to the appeal. [363-368]

We have been presented with a question certified to us by the Supreme Court of the United States *fn1 pursuant to S.J.C. Rule 3:21, as amended, 366 Mass. 871 (1974). The question pertains to the authority of the Attorney General to prosecute an appeal to the Supreme Court from a judgment of the United States District Court, District of Massachusetts, contrary to the expressed objections of State officers whom he represented in the District Court proceedings.

The action which generated the question now before us was commenced by Helen B. Feeney under 42 U.S.C. § 1983 (1970) after she was refused certification for two civil service positions. Although Mrs. Feeney received high scores on civil service examinations given in connection with the selection procedure for both positions, she was not certified for either position as a result of the operation of the Massachusetts veterans' preference statute, G. L. c. 31, § 23. *fn2 In her complaint, Mrs. Feeney asserted that the application of the veterans' preference formula to the hiring procedure for public employment positions constituted unconstitutional discrimination on the basis of sex. The Commonwealth, the Division of Civil Service (Division), the Civil Service Commission (Commission), and the Director of Civil Service (now Personnel Administrator of the Commonwealth) (Personnel Administrator) *fn3 were named as defendants and were represented by the Attorney General during the District Court proceedings. *fn4

After entering judgment for the Commonwealth and the Division because they concluded that neither was a person within the meaning of 42 U.S.C. § 1983 (1970) a majority of the three-member District Court ruled that G. L. c. 31, § 23, is unconstitutional. *fn5 Feeney v. Massachusetts, 415 F. Supp. 485 (D. Mass. 1976). The District Court recognized that rewarding military service veterans with preference in public employment selection procedures is a meritorious State purpose. The court concluded, however, that the manner the Commonwealth has chosen to implement its interest in the employment of veterans deprives female civil service applicants of equal protection of the laws. The court permanently enjoined the Commission and the Personnel Administrator from applying G. L. c. 31, § 23, in making any future civil service appointments in the Commonwealth.

Two days after the court issued its opinion in the Feeney case, the Commission voted to request the Attorney General not to appeal the decision on behalf of the Commission and its members. The chairman of the Commission sent a letter dated March 31, 1976, to the Attorney General to inform him of the Commission's unwillingness to become a party to an appeal of the Feeney decision. Similarly, the Personnel Administrator voiced his opposition to an appeal of the decision in a letter to the Attorney General on the same day. The letters from the chairman of the Commission and the Personnel Administrator were followed by a communication from the Governor requesting the Attorney General not to appeal the decision on behalf of the named defendants. The Legislature, however, expressed a contrary viewpoint. On April 6, 1976, both the House of Representatives and the Senate passed resolutions urging the Attorney General to appeal the District Court's decision to the Supreme Court of the United States.

After further consultations with representatives of the Governor and the defendants, and despite their continued opposition to an appeal, the Attorney General filed a notice of appeal from the judgment of the District Court. *fn6 Thereafter, a jurisdictional statement was filed in the Supreme Court by the Attorney General on behalf of the Commission and the Personnel Administrator. The Commission and the Personnel Administrator advised the Supreme Court by a letter addressed to the clerk that the appeal had been taken without their authorization and that they had requested the Attorney General not to appeal from the judgment of the District Court. They urged the court to dismiss the appeal.

The Supreme Court of the United States has determined that the authority of the Attorney General to represent the named defendants in an appeal to that court has been called into question by the defendants' persistent opposition to an appeal of the District Court judgment. Accordingly, the Supreme Court has certified the following question of State law for our consideration: "Under the circumstances herein presented, does Massachusetts law authorize the Attorney General of the Commonwealth to prosecute an appeal to this Court from the judgment of the District Court without the consent and over the expressed objections of the state officers against whom the judgment of the District Court was entered?"

The question presents an issue which is similar in many respects to that considered by this court in Secretary of Administration & Fin. v. Attorney Gen., 367 Mass. 154 (1975). In that case, the Attorney General represented the Secretary of Administration and Finance in the Superior Court trial of a civil action through which the plaintiff *fn7 undertook to compel the Secretary to take the steps necessary to complete the sale of property owned by the plaintiff to a State agency. A Judge of the Superior Court ruled that the Secretary possessed no legal basis to justify his refusal to authorize consummation of the sale. Following entry of judgment adverse to the Secretary, a dispute arose between the Secretary and the Attorney General on the question whether the judgment of the Superior Court would be appealed. Both the Secretary and the Governor requested the Attorney General to prosecute an appeal. The Attorney General concluded that "the ends of government . . . not be advanced by appealing the . . . [Superior Court's judgment]." Id. at 157 n.2. The Secretary instituted an action for declaratory relief requesting that the court order the Attorney General to obtain appellate review. We held that "the Attorney General, as 'chief law officer of the Commonwealth,' . . . [citation omitted] has control over the conduct of litigation involving the Commonwealth, and this includes the power to make a policy determination not to prosecute the Secretary's appeal in this case." Id. at 159.

The powers and duties of the Attorney General are in part derived from G. L. c. 12, § 3, as amended through St. 1943, c. 83, § 1. *fn8 The Attorney General is directed by that provision to "appear for the commonwealth and for state departments, officers and commissions in all suits and other civil proceedings in which the commonwealth is a party or interested, or in which the official acts and doings of said departments, officers and commissions are called in question, in all the courts of the commonwealth, except upon criminal recognizances and bail bonds, and in such suits and proceedings before any other tribunal, including the prosecution of claims of the commonwealth against the United States, when requested by the governor or by the general court or either branch thereof. All such suits and proceedings shall be prosecuted or defended by him or under his direction. Writs, summonses or other processes served upon such officers shall be forthwith transmitted by them to him. All legal services required by such departments, officers, commissions and commissioners of pilots for district one in matters relating to their official duties shall, except as otherwise provided, be rendered by the attorney general or under his direction."

As we observed in the Secretary of Administration & Fin. case, the Legislature through the enactment of G. L. c. 12, ยง 3, consolidated the responsibility for all legal matters involving the Commonwealth in the office of the Attorney General. The Legislature thereby "empowered, and perhaps required, the Attorney General to set a unified and consistent legal policy for the Commonwealth." 367 Mass. at 163. The issue we are called on to resolve in the present case is whether the power of the Attorney General to establish a coherent legal policy ...


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