ERNEST C. GUARENTE vs. SHERIFF OF SUFFOLK COUNTY & others.

ERNEST C. GUARENTE vs. SHERIFF OF SUFFOLK COUNTY & others.

362 Mass. 557

September 11, 1972 - November 3, 1972

Suffolk County

Present: TAURO, C.J., QUIRICO, BRAUCHER, & HENNESSEY, JJ.

A suit in equity seeking reinstatement of the plaintiff as a standing bail commissioner of Suffolk County, commenced promptly after the Superior Court's committee on bail denied him reinstatement, was not barred by laches, even though a substitute commissioner was appointed and served for about a year between the plaintiff's removal and the committee's hearing thereon. [559]

The removal of a standing bail commissioner by the sheriff of Suffolk County at the "order" of the Superior Court's committee on bail was proper under G. L. c. 276, Section 57, providing that the sheriff might

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remove bail commissioners with the "approval" of the Superior Court [559-560]; the discharged commissioner's claim that evidence presented at a hearing before the committee was insufficient to warrant his removal misconceived the situation, since c. 276, Section 57, does not require any cause for removal, any hearing, or any statement of reasons [560].

BILL IN EQUITY filed in the Supreme Judicial Court for the county of Suffolk on May 21, 1971.

The suit was reserved and reported by Braucher, J.

James D. St. Clair (John G. Fabiano with him) for the plaintiff.

Danielle B. deBenedictis, Deputy Assistant Attorney General, for the Superior Court.

Gerard A. Powers, Assistant Corporation Counsel, for the Sheriff of Suffolk County.

BRAUCHER, J. By this bill for declaratory relief under G. L. c. 231A, the plaintiff seeks reinstatement as a bail commissioner in Suffolk County. The defendants are the sheriff and the judges of the Superior Court, acting by the court's committee on bail (committee). A single justice has reserved and reported the case without decision on the pleadings and a statement of agreed facts with exhibits. The exhibits include correspondence among the parties and a transcript of a hearing before the committee held on January 6, 1971.

We summarize the agreed facts. In 1963 the sheriff, with the approval of the committee, appointed the plaintiff a standing commissioner to take bail, and the plaintiff was active in that capacity until November, 1969. In September, 1969, two judges of the Municipal Court of the Roxbury District made complaints to the committee that the plaintiff has "not followed the statute in connection with notifying the District Attorney's office on many felony cases" and had "not properly investigated some defendants before setting bail," and the committee so notified the plaintiff, warning him that further complaints would result in proceedings to terminate his appointment. In November, 1969, the committee received a further complaint from one of the same judges. The committee notified the sheriff and the plaintiff that the appointment was to be terminated forthwith, and the

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sheriff forwarded to the plaintiff a copy of the committee's letter. Since approximately November, 1969, the plaintiff has not acted as a bail commissioner. On January 6, 1970, the sheriff wrote the plaintiff that he had been ordered by the judges of the Superior Court "to notify you officially that said commission is revoked forthwith, in fact has been revoked since November." In December, 1970, the committee granted the plaintiff's request for a hearing, and the hearing was held on January 6, 1971. At the hearing one of the complaining judges explained the complaints; the plaintiff made a partial response and by leave of court submitted a written response after the hearing. On February 11, 1971, the committee denied the plaintiff's motion to revoke the order terminating his services as a bail commissioner.

1. The question is raised whether this case is an appropriate one for declaratory relief under G. L. c. 231A. As in County Commrs. of Bristol v. Judges of Probate of Bristol, 338 Mass. 738 , 741, "we merely mention the point and pass it by. What we decide we could have considered of our own motion." G. L. c. 211, Section 3, as amended by St. 1956, c. 707, Section 1.

2. It is argued that the plaintiff's claim is barred by laches because a substitute bail commissioner was appointed during the period of approximately a year between the initial removal of the plainff and the hearing before the committee. The plaintiff brought suit promptly after the decision of the committee in February, 1971, and we think no laches was established. Compare Swartz v. Clayton, 327 Mass. 254 , 256.

3. The principal contention of the plaintiff rests on G. L. c. 276, Section 57, as amended through St. 1965, c. 280, providing that the sheriff may appoint bail commissioners with the approval of the Superior Court "and may, with like approval, remove them." No point is made that the approval of the committee is not the approval of the Superior Court. But, he argues, his removal was initiated, ordered and directed by the court rather than by the sheriff. We think the distinction is immaterial. He concedes that the court could request removal, and we

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think the committee's "order" was no less effective than a "request" or "approval." As the sheriff now contends, he exercised his statutory power by notifying the plaintiff of his removal. Compare Wasson v. Director of Civil Defense, 339 Mass. 322 , 326.

4. Finally, the plaintiff argues that the evidence presented at the hearing did not warrant his removal. This contention misconceives the situation. The statute does not require any cause for removal, any hearing, or any statement of reasons, any more than it does for appointment. See Knowles v. Boston, 12 Gray 339 , 340. Compare McKenna v. White, 287 Mass. 495 , 497-499; Davis v. School Comm. of Somerville, 307 Mass. 354 , 362; DeCanio v. School Comm. of Boston, 358 Mass. 116 , 119-120. It was undoubtedly fair and wise to grant the hearing, but no one was required to present evidence against the plaintiff. He made no showing that his removal was arbitrary or capricious, and we need not pass on the effect of such a showing.

5. A decree is to be entered in the county court declaring that the revocation of the plaintiff's commission was not improper or invalid and that the plaintiff's rights were not violated by the actions of the defendant sheriff and the defendant judges.

So ordered.