DIRECTOR OF CIVIL SERVICE & others [Note 1] vs. TOWN OF MILTON & others. [Note 2]

BRAUCHER, J. We are asked to reconcile our decision in Milton v. Civil Serv. Commn. 365 Mass. 368 (1974) (the Milton case), with the consent decree in Castro v. Beecher, 365 F. Supp. 655 (D. Mass. 1973), entered pursuant to the

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decision in Castro v. Beecher, 459 F. 2d 725 (1st Cir. 1972). It is represented to us that dispute as to the reconciliation of those decisions has resulted in an "emergency police and public safety situation," because no police appointments can be made until the dispute is resolved. We therefore direct the entry of a decree declaring the obligations of the Director of Civil Service and the Civil Service Commission (the plaintiffs). That decree is to be subject to appropriate revision in the event of any order or decree of the United States District Court, District of Massachusetts, modifying or clarifying the consent decree.

We summarize the facts to which the plaintiffs and the defendant towns and city have stipulated, together with matters of record and matters not in dispute.

In the Castro case, the United States Court of Appeals decided that a general intelligence examination, used in the years 1968 through 1970 as the entrance examination for the appointment of police officers, discriminated against minority groups, including black and Spanish-surnamed applicants, and was not significantly related to an applicant's ability to perform the duties of a policeman. 459 F. 2d at 728-729, 735-736. The court therefore ordered "compensatory relief" for black and Spanish-surnamed applicants (hereafter minority applicants), to be achieved through priority pools for such applicants and for applicants on existing eligibility lists.

On remand, the Federal District Court, on April 15, 1973, entered a consent decree. 365 F. Supp. at 660-662. That decree, among other things, ordered the establishment of four groups of eligible police officer candidates for each police department: Group A -- minority applicants who failed police entrance examinations in 1968-1970 but passed the 1972 interim examination and were otherwise qualified; Group B -- persons on three eligibility lists established in 1970 and 1971; Group C -- minority persons not in Group A who passed the 1972 interim examination and were otherwise qualified; Group D -- all other persons who passed the 1972 interim examination and were otherwise qualified. The definition of each of the four groups

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separately provided: "Said candidates [or `persons'] shall be ranked in accordance with existing Massachusetts law." Candidates were to be certified to police departments on the basis of one candidate from Group A for every candidate certified from Group B until Group A was exhausted. Thereupon one candidate from Group C was to be certified for every three candidates from Group B until Groups B and C were exhausted. The three lists in Group B were to expire on dates now past. Upon the exhaustion of Groups A, B and C, candidates were to be certified from Group D. The list comprising Group D is to expire in May, 1975.

Statute 1972, c. 226, [Note 3] provided for priority for police applicants who have resided for one year in the appointing city or town (hereafter residents). On April 5, 1973, the Attorney General rendered an opinion to the Director of Civil Service to the effect that the priority provision was unconstitutional. Rep. A. G., Pub. Doc. No. 12 (1973), p. 109. The existence of that provision was not brought to the attention of the Federal judge in the proceedings leading to the consent decree entered in the Castro case on April 15, 1973, although an assistant attorney general consented to the decree.

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In October, 1973, the defendant towns and city brought a suit against the present plaintiffs, seeking a declaration that the priority for residents was constitutional. Such a declaration was decreed in the Superior Court early in 1974, and the decree was affirmed by this court on June 5, 1974, in the Milton case. The effect of the consent decree was not raised in the Superior Court in that case, and we refused to permit it to be raised for the first time in this court. 365 Mass. at 379.

The present plaintiffs believe that they are required by the consent decree in the Castro case to maintain four lists of eligible applicants for police positions. The defendant towns and city objected to the manner in which the plaintiffs were preparing to certify applicants, maintaining that it did not comply with St. 1972, c. 226, and they sought and obtained on June 26, 1974, in addition to a final decree after rescript in the Milton case, an order by the same judge of the Superior Court providing in detail for compliance with that decree. That order, without reference to the Federal consent decree, provided for certification in the following order: (1) disabled veterans who are residents, (2) veterans who are residents, (3) residents, (4) disabled veterans who are nonresidents, (5) veterans who are nonresidents, (6) nonresidents. The order also enjoined the plaintiffs from certifying any police civil service lists in any other form. The town of Milton then made thirteen appointments to the police department, believing them to be in accordance with the order, and the plaintiff director notified the town that the appointments could not be processed.

Thereafter the plaintiffs in the Castro case sought an injunction in the Federal District Court against the present plaintiffs and the defendant towns and city, requiring them to comply with the consent decree. None of the defendant towns and city had previously been a party in the Castro case. On July 15, 1974, a Federal district judge entered a temporary restraining order enjoining the present plaintiffs from approving any appointments not in conformity with the consent decree.

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On July 19, 1974, the present plaintiffs filed the complaint in the present action in the county court, alleging that they were subject to contemporaneous conflicting injunctions, and seeking relief under G. L. c. 211, Sections 3 and 4A. On August 5, 1974, a single justice of this court entered an order transferring the Milton case to the county court, staying further proceedings in that case, admitting a twenty-seventh town as an intervener, and directing the completion of pleadings.

Thereafter the defendant towns and city filed five motions in the current Castro case in the Federal court: (1) to be joined as indispensable parties or to intervene as of right, (2) to convene a three-judge court, (3) to clarify, amend or vacate the temporary restraining order, (4) to clarify the consent decree, and (5) to vacate the consent decree and judgment. Memoranda were filed and the motions were argued on September 16, 1974, but no decision had been made as of November 18, 1974.

On November 25, 1974, a single justice of this court reserved and reported the present case to the full court without decision. The plaintiffs in the Castro case, minority applicants for police positions, sought leave to file a brief in the present case as friends of the court, but instead a motion was allowed to add them as parties plaintiff. At oral argument on December 5, 1974, they filed a motion to supplement the record. The motion was objected to, and is denied.

1. Federal issues. The parties make numerous arguments on issues of Federal jurisdiction and procedure and Federal constitutional law. The plaintiffs argue that the supremacy clause of the United States Constitution permits the suspension of valid State laws and judgments where their operation might conflict with the effectuation of a Federal judgment designed to remedy constitutional violations. They also contend that the defendant towns and city, though not parties to the Castro case, were "legally and morally before the Court" as State agencies. The intervener plaintiffs add claims not founded on the record before us: twenty-four of the twenty-seven defendant towns

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and city, they say, have all-white police departments, and the priority for residents would inevitably have the impact of "freezing in the effects of generations of past discrimination." They explain at length that the Castro case was correctly decided, and that valid State laws must therefore yield, citing United States v. Greenwood Municipal Separate Sch. Dist. 406 F.2d 1086 (5th Cir. 1969), cert. den. 395 U.S. 907 (1969); Burns v. School Commrs. of Indianapolis, 302 F. Supp. 309 (S.D.Ind. 1969), affd. 437 F.2d 1143 (7th Cir. 1971); Coffey v. Braddy, 372 F. Supp. 116 (M.D. Fla. 1971).

On the other side, the defendant towns and city assert that only a three-judge Federal court can enjoin the enforcement of a State statute where there is a substantial question as to its constitutionality. This was recognized at an early stage in the Castro case, they say, citing Castro v. Beecher, 334 F. Supp. 930, 938 (D. Mass. 1971), and was reaffirmed with respect to statutory veterans' preferences when the consent decree was entered. 365 F. Supp. at 660. The requirement of a three-judge court is jurisdictional, and cannot be avoided by consent or waiver. Americans United for Separation of Church & State v. Paire, 475 F.2d 462, 464 (1st Cir. 1973). Since the consent decree in the Castro case was entered by a single judge, that decree should therefore be read to preserve the priority for residents rather than "to spread minorities about the state." The decree in the Castro case was based on data limited to Boston, they argue further, and an extension of the remedy to towns and cities which were not before the court might violate the principle of Milliken v. Bradley, 418 U.S. 717 (1974). Racial preferences for minorities may themselves be unconstitutional. Cf. DeFunis v. Odegaard, 416 U.S. 312 (1974).

We decline to venture into these troubled waters. All these questions have been submitted to the appropriate Federal court. In the words of the August 5, 1974, order of the single justice of this court, "it is appropriate for the United States District Court for the District of Massachusetts to have an opportunity in . . . [the Castro case], or in

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other appropriate proceedings, to define the proper relationship between the prescriptions of the final judgment of April 15, 1973, in the Castro action and the requirements of Mass. St. 1972, c. 226, with respect to residency." We think it is equally appropriate for the Federal court to have an opportunity to resolve issues as to the validity and effect of its consent decree with respect to parties brought into the case after the decree was entered.

2. State jurisdiction. The question remains whether this court should act at all, or whether, as the intervener plaintiffs contend, we should abstain entirely. We are told that the defendant towns and city have been unable to make police appointments for several years because of the uncertainties here in issue. The result is that hundreds of applicants, both minority applicants and others, do not know where they stand and cannot intelligently plan their affairs. The intervener plaintiffs asserted in argument that the appointments of minority applicants as a result of the Castro consent decree have been disappointing in number. Finally, we are told that the situation now verges on public emergency. In these circumstances we think we must take the action required to clarify the questions of State law presented by the consent decree, so far as we can do so without trespassing on the Federal court's domain.

3. The consent decree and State law. We find little ambiguity in the Federal consent decree. Within each of the four mandated groups candidates are to be ranked in accordance with State law. Nor is there serious difficulty in such ranking. Apart from the Federal consent decree, all the parties seem to agree with the six-category ranking ordered by the Superior Court judge on remand in the Milton case. 365 Mass. 368 (1974). The plaintiffs should therefore promptly certify candidates in accordance with the Federal decree, and so far as that decree permits should rank the candidates in the six categories required by State law. As we read that decree, it permits ranking of candidates according to State law within each of the four groups established by the decree.

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We are aware of the decisions in Boston Chapter, NAACP, Inc. v. Beecher, 371 F. Supp. 507 (D. Mass. 1974), affd. 504F. 2d 1017 (1st Cir. 1974). That case was much like the Castro case except that it involved firefighters instead of policemen. It was decided in the Federal District Court before the enactment of the 1974 amendment extending to firefighters the State priority for residents (see fn.3). The court created four eligibility groups, as in the Castro case, but limited its decree to communities having a minority population of one per cent or more, and freed from the decree any community which attained a percentage of minority firefighters approximately equal to the percentage of minorities in the community. Id. at 1026-1027. We think it proper to say that, if we were free to make an independent judgment, we should strongly prefer a solution modeled on that adopted in the firefighters case.

4. Disposition. The supplementary order entered in the Superior Court on June 26, 1974, is vacated. The case is remanded to the county court. The single justice is to enter a judgment declaring that, in certifying police applicants in accordance with the four groups created by the Federal consent decree, Massachusetts preferences for residents and veterans are to be given effect separately in each of those groups. Within each group eligible candidates are to be ranked in the following order: (1) disabled veteran residents, (2) veteran residents, (3) residents, (4) disabled veteran nonresidents, (5) veteran nonresidents, (6) nonresidents. The judgment is to be subject to revision by the single justice in the event of any relevant decision in the pending Federal case involving the same parties.

So ordered.