RICHARD J. BREAULT vs. CHAIRMAN OF THE BOARD OF FIRE COMMISSIONERS OF SPRINGFIELD. [Note 1]

LIACOS, J. A judge of the Superior Court concluded, in a pretrial order, that, even though the acts complained of by the plaintiff were performed by the defendant solely in his capacity as a public official, he is not immune from liability under the Federal or State civil rights laws, 42 U.S.C. Section 1983 (1982) and G. L. c. 12, Sections 11H and 11I (1986 ed.). [Note 2] The judge also

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denied the defendant's motion for summary judgment. The defendant appeals. We conclude that the judge did not err either as to the Federal or State civil rights claim in denying immunity to the defendant. Accordingly, we affirm.

The facts are these. By trade, the defendant is a funeral director. In 1978, the mayor of the city of Springfield (city) appointed him to serve, without compensation, as a member of the board of fire commissioners of Springfield (board), a body charged inter alia with hiring and firing fire fighters in conformance with the civil service laws. See G. L. c. 31, Sections 1 (definition of "[a]ppointing authority"), 48 and 51 (1986 ed.). From July, 1978, through November, 1984, the defendant served as chairman. The plaintiff was employed as a fire fighter by the city. At times relevant to this case, he held a tenured position which was subject to the provisions of G. L. c. 31. In August, 1977, he was indicted on several criminal charges, including statutory rape. The plaintiff was advised by the chief of the fire department that he was at risk of permanent termination from employment if found guilty of conduct unbecoming a fire fighter, but that he could request an unpaid leave of absence pending resolution of the charges against him. The plaintiff then made written request for a leave of absence "for thirty days or until my personal problem has been resolved." His request was granted.

In April, 1981, the plaintiff was tried and acquitted of the criminal charges against him. In June, he applied to the board for reinstatement as a fire fighter. Told to appear at a monthly meeting of the board on August 4, 1981, he did so. The minutes of that meeting disclose that "[t]he Chairman asked [the plaintiff] if he had any claims against the Fire Department or the City," and whether "he had considered writing to the Commission that does not [sic] hold the City harmless." The chairman expressed his "feel[ing] that any claim against the City or

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the Fire Department should be resolved before [the plaintiff] is considered for reinstatement." Although another commissioner suggested that the commission "does not want to make it sound like reinstatement . . . is contingent upon whether or not any action is taken by him against the City . . . Breault was asked if he would sign a statement that he would not bring any claims against the City or the Fire Department." When the plaintiff said "he was not sure, he would have to check with his lawyer . . . [t]he Chairman said it was difficult to make a decision and they would wait to see what the Law Department comes up with." Because "[t]he Commission want[ed] an answer to their question about any claims against the City or the Fire Department," the matter was postponed until the next meeting. After more than two months had elapsed, plaintiff's counsel wrote to the board on October 21, 1981, indicating that the plaintiff was represented by counsel and inquiring about the status of Breault's request for reinstatement. On November 10, 1981, the board met and decided to reinstate the plaintiff, his reinstatement to take effect on November 23, 1981.

The plaintiff filed suit against the city and the chairman in December, 1982. In its first three counts, the complaint sought compensation for wrongs alleged to have resulted from his unpaid leave of absence. [Note 3] Count IV alleged denial of the plaintiff's rights and privileges under the First, Fifth, and Fourteenth Amendments to the Constitution of the United States and demanded compensation pursuant to 42 U.S.C. Section 1983 (1982). Concerning rights similarly grounded, count V alleged deprivation of those rights "by force, threats, coercion, and intimidation" and demanded compensation pursuant to G. L. c. 12, Sections 11H and 11I. In response to a series of motions in 1985, the judge allowed summary judgment for the defendant city

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on all counts of the complaint and for the defendant on count I. The defendant was denied summary judgment on the remaining counts. [Note 4] On March 11, 1986, the judge denied the defendant's motions for reconsideration of summary judgment; and, in answer to the defendant's motion for a pretrial determination of qualified immunity from suit on counts IV and V, the judge ruled that the defendant is not immune from liability. The defendant filed a notice of appeal from the order denying immunity from liability on counts IV and V. [Note 5]

1. Qualified immunity pursuant to Section 1983. The defendant argues that qualified immunity was denied erroneously, and that this interlocutory appeal is properly before us. The plaintiff maintains the contrary.

a. Appropriateness of review. The judge's order did not conclude the plaintiff's action at the trial level, and in that sense it was not the sort of final judgment that is entitled to appellate review. See Kargman v. Superior Court, 371 Mass. 324, 329-330 (1976), and cases cited. Nonetheless, even where part of an action remains undetermined, we treat an order as final if it is to be executed presently with the result that any later appeal would be futile. Borman v. Borman, 378 Mass. 775, 779-780 (1979), relying on Vincent v. Plecker, 319 Mass. 560, 564 n.2 (1946).

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The defendant would not benefit from our rule of "present execution," as stated in Borman, if the asserted right to immunity is but a right to freedom from liability under Section 1983, for in that case his right could be vindicated fully on appeal after trial. If, however, the asserted right is one of freedom from suit, the defendant's right will be lost forever unless that right is determined now, and his appeal is proper.

The controlling Federal authority clearly indicated that the immunity in question is an immunity from "the risks of trial." Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982). The immunity created by the Supreme Court for application to suits brought under this Federal statute is an immunity from suit, not just from liability. Mitchell v. Forsyth, 472 U.S. 511, 525-526 (1985) (plurality opinion, id. at 518, 530, stating that, by force of "collateral order doctrine," decision by Federal District Court denying qualified immunity to suit under Section 1983 is appealable "final decision" within meaning of 28 U.S.C. Section 1291 (1982), notwithstanding absence of final judgment). [Note 6] Therefore, in the sense contemplated by our rule of present execution, Borman, supra, the judge's order denying qualified immunity is final, and the question of the validity of the judge's order is ripe for consideration by this court.

b. The denial of immunity. "Government officials performing discretionary functions may be shielded from liability for civil

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damages in a Section 1983 action by the doctrine of qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 818 . . . (1982); Davis v. Scherer, 468 U.S. 183 [, 194 n.12] (1984) (immunity standard of Harlow applies in Section 1983 actions). An official is entitled to immunity if, at the time of the challenged action, the statutory or constitutional right allegedly violated was not `clearly established.' Harlow, 457 U.S. at 818 . . . ." Bonitz v. Fair, 804 F.2d 164, 166 (1st Cir. 1986). Discussing the role of appellate courts pursuant to Mitchell, supra, the United States Court of Appeals for the First Circuit, in Bonitz v. Fair, supra, has emphasized that the scope of review is limited to questions of law, id., quoting Mitchell, supra at 530, that is, whether (a) the acts complained of were "discretionary functions," not ministerial in nature, and (b) the statutory or constitutional rights allegedly violated were "clearly established." See Anderson v. Creighton, 483 U.S. 635, 641 (1987) (principle of qualified immunity allows defendant to seek summary judgment on ground that, on "clearly established principles [of law]," he could have reasonably believed his acts to be lawful).

In this case, the judge withheld immunity under the Harlow standard because he concluded both that (a) when responding to the plaintiff's request for reinstatement, the defendant was performing a nondiscretionary, ministerial act, clearly mandated in the instant circumstance by G. L. c. 31, Section 37 (governing reinstatement after voluntary leave of absence from a civil service position); and (b) even though "[t]he average layman may not be able to point immediately to the First Amendment to the United States Constitution or Article XI of the Declaration of Rights as the source" of the right allegedly violated, "the right of free access to the courts is . . . so clearly established that a reasonable person in [the defendant's] position would have known about it." The defendant argues, however, that rights are not "clearly established" for Harlow purposes unless, at the time of the acts at issue, the rights were enshrined in factually indistinguishable case law, either controlling in the jurisdiction or substantially uncontroverted, about which a layman like himself reasonably should have known.

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We need not reach these latter arguments because immunity is available, as a threshold matter under Harlow, only where the defendant official was "performing discretionary functions," Harlow, supra at 818. We agree with the judge that the facts alleged by the plaintiff described circumstances in which the defendant was called upon to act only in a ministerial, not a discretionary, capacity. [Note 7] It is undisputed that the leave of absence granted to the plaintiff in 1977 was governed by G. L. c. 31, Section 37 (1986 ed.). According to Section 37, "[a]ny person who has been granted a leave of absence . . . pursuant to this section shall be reinstated at the end of the period for which the leave was granted . . ." (emphasis supplied). Having in mind both "the ordinary and approved usage" of this language, as well as the "object to be accomplished," Commonwealth v. Galvin, 388 Mass. 326, 328 (1983), namely the protection of civil servants' rights to their public employment, see generally Horrigan v. Mayor of Pittsfield, 298 Mass. 492, 495 (1937),

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we read the statute to require reinstatement when the term of the leave expires. Admittedly, the terminus of the leave granted to the plaintiff was not fixed by date; nonetheless, because the leave was sought by the plaintiff to cover that period of time "until my personal problem [i.e., his indictment] has been resolved," reinstatement was the plaintiff's mandatory right after his acquittal. [Note 8] Because the defendant enjoyed no statutory discretionary authority to withhold reinstatement, he acted in a ministerial capacity. Immunity was properly denied.

2. Immunity under State law. In response to the defendant's claim of immunity from liability or suit under the Massachusetts Civil Rights Act (Act), G. L. c. 12, Sections 11H and 11I, the judge reasoned from our decision in Chicopee Lions Club v. District Attorney for the Hampden Dist., 396 Mass. 244 (1985), that "some form of immunity is applicable to claims against [nonjuridical] officers . . . in appropriate cases." He then applied to the plaintiff's statutory action our common law standard for extending immunity to nonjuridical officers sued in tort. According to this test, immunity is warranted where an official has acted within the scope of a discretionary public duty and not in bad faith, with malice, or corruptly. See Gildea v. Ellershaw, 363 Mass. 800, 820 (1973). For purposes of argument, the judge ruled that, even if the defendant had performed in a discretionary capacity, immunity was unwarranted because, if the plaintiff's allegations were true, the defendant could be viewed as having tried to coerce him into surrendering the right to pursue his legal claims, and therefore the defendant could be found to have acted in bad faith or with malice. We concur in the result reached by the judge, but on different grounds. [Note 9]

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In Chicopee Lions Club, supra at 252, we noted that "the Massachusetts Civil Rights Act by its terms admits of no immunities." Even though the Act itself is silent on the question of immunity, it is reasonable to conclude that the Legislature did not intend to immunize nonjuridical officers for all ministerial acts performed by them. [Note 10] In the year immediately prior to adoption of the Civil Rights Act, St. 1979, c. 801, the Legislature responded to the proddings of this court by adopting a Tort Claims Act, G. L. c. 258. See St. 1978, c. 512, Section 15. The Tort Claims Act abrogated the common law rule of sovereign immunity which had theretofore immunized public entities from suit in tort claims arising from the acts or omissions of public employees. See G. L. c. 258, Section 2. See also Morash & Sons v. Commonwealth, 363 Mass. 612 (1973). The Tort Claims Act also absolved public employees from liability for their negligent acts performed within the scope of official duties. G. L. c. 258, Section 2. Significantly, however, the Tort Claims Act withheld immunity from public employees (and retained immunity for public entities) where the acts complained of were "intentional," as opposed to negligent, G. L. c. 258, Section 10 (c); and the Tort Claims Act authorized public employers to "indemnify public employees . . . in an amount not to exceed one million dollars" where harm is alleged "by reason of an intentional tort, or by reason of any act or omission which constitutes a violation of the civil rights of any person under any federal or state law." G. L. c. 258, Section 9 (1986 ed.). [Note 11]

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Thus, when the Legislature adopted the Civil Rights Act one year later in 1979, it wrote on a common law slate recently wiped clean and newly limned with statutory markings. Clearly, these markings indicated a legislative willingness to see public officers sued for violations of civil rights, else no treatment of the question of indemnification from civil rights suits would have been necessary. Furthermore, while we do not intimate that compensatory civil rights claims are indistinguishable from actions alleging intentionally tortious acts, the Legislature's provision for indemnity from both in the same statutory sections, Sections 9 and 9A, and the exclusion of indemnity in Section 13, suggests an awareness by the Legislature of the possibility of suits such as this. Additionally, the statutory exemption only for discretionary acts, G. L. c. 258, Section 10 (b), buttresses our view that the Legislature did not intend to preclude suits based on intentional ministerial acts.

Because the Civil Rights Act proscribes only those interferences with civil rights which are accomplished "by threats, intimidation or coercion," G. L. c. 12, Section 11H, incorporated by reference in G. L. c. 12, Section 11I, the Act operates almost entirely within the realm of "intentional" behavior. [Note 12] Given that adoption of the Act followed closely on the heels of enactment of the Tort Claims Act, we think it both logical and likely that the Legislature viewed the later legislation in light of the earlier enactment, and intended to withhold immunity from officials who intentionally violated the Act, just as the Tort Claims Act withholds immunity from intentional tortfeasors.

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Turning now to the question whether, at the time the Act was passed, there existed any "tradition" of immunity for nonjuridical officers so firmly "rooted in history" that we should not presume the Legislature to have abandoned it without comment, Chicopee Lions Club, supra, our review of the court's common law decisions reveals nothing of the sort. Compare Anderson v. Bishop, 304 Mass. 396, 398-399 (1939) (directly citing a line of decisions back to 1854 in support of the doctrine of absolute judicial immunity, and back to 1926 in support of absolute prosecutorial immunity), with Gildea v. Ellershaw, 363 Mass. 800, 820 (1973). In Gildea, the court sought to reconcile what can best be described as a confusing welter of previous decisions. Some of these decisions withheld immunity entirely, stating, for example, that, even where nonjuridical officers had performed their duties in good faith, "[t]he cloak of office is no protection to them," Stiles v. Municipal Council of Lowell, 233 Mass. 174, 182 (1919), discussed in Gildea, supra at 805-810, 821-825; Miller v. Horton, 152 Mass. 540 (1891) (Holmes, J.); other decisions, however, upheld immunity even when the official acts complained of were ministerial in nature, so long as nonfeasance was alleged rather than misfeasance, see, e.g., Desmarais v. Wachusett Regional School Dist., 360 Mass. 591, 593 (1971), mentioned in Gildea, supra at 812 n.11; and see Fulgoni v. Johnston, 302 Mass. 421, 423 (1939); [Note 13] and still others "attempt[ed] to give nonjudicial public officers the benefit of . . . [absolute] immunity . . . enjoyed by judges, but only if . . . the function of the officer which gave rise to the claim for damages was either judicial or quasi judicial in nature." Gildea, supra at 812, referring to Barry v. Smith, 191 Mass. 78, 88 (1906), and Jaffarian v. Murphy, 280 Mass. 402, 406-407 (1932). It was decided in Gildea that henceforward the nonjuridical officer was entitled to tort immunity for discretionary acts performed within the scope of official duty, in good faith and without malice or corruption. Id. at 820. It is significant to note that both Gildea and Chicopee

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Lions Club dealt with discretionary acts of public officials. The same is true of Pina v. Commonwealth, 400 Mass. 408, 412 (1987). See G. L. c. 258, Section 10 (b). None of these cases, or Section 10 (b), has application to acts, such as those in the case at bar, which are ministerial in nature. In these circumstances, we think that the silence of the Legislature concerning immunity under the Act cannot be interpreted as incorporating a tradition of immunity for intentional ministerial acts. In this context where history is no guide, we rely heavily on the principle that the Act, "like other civil rights statutes, is remedial [and] is entitled to liberal construction of its terms." Batchelder v. Allied Stores Corp., 393 Mass. 819, 822 (1985). We conclude, therefore, that, where intentional ministerial acts of public officials are involved, there is no basis to conclude, under the relevant statutes and case law, that immunity from suit should be granted. Accordingly, the judge was correct in ruling that the defendant was not immune from the remedial ambit of the Act.

The considerations cited in Harlow v. Fitzgerald, 457 U.S. 800 (1982), do not outweigh the public interest in affording remedies to persons injured as described in the Act. We need not discuss the defendant's argument in favor of adopting the particular form of immunity propounded in Harlow because that case deals with discretionary, not ministerial, acts. While we appreciate the meticulousness with which the judge applied the Gildea test for immunity in this case, we decline to adopt that approach. The Gildea standard is basically a test which serves to protect officials who perform discretionary duties.

Since no immunity was warranted, the order denying the defendant immunity under counts IV and V was correct, and summary judgment for the defendant was properly denied.

Orders affirmed.

WILKINS, J. (concurring). The court is correct in concluding that the defendant was performing a ministerial act. The court's opinion, however, unduly complicates this case.

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The basic issue is whether the defendant is entitled to immunity under G. L. c. 258, Section 2. He is so entitled if Section 2 applies to his conduct. Section 2 does not apply to "any claim arising out of an intentional tort." G. L. c. 258, Section 10 (c) (1986 ed.). Some violations of the Civil Rights Act (G. L. c. 12, Sections 11H and 11I) should be treated as intentional torts for the purposes of Section 10 (c) and others should not be. The intentional conduct which justifies a claim under the Civil Rights Act is not the same as the intentional conduct that is an element of an intentional tort. See Redgrave v. Boston Symphony Orchestra, Inc., 399 Mass. 93, 99 (1987).

The question whether this claim falls within the scope of G. L. c. 258 remains open in this case. If the claim is based on an intentional tort, such as an intentional violation of civil rights, I agree that the defendant is not immune from liability. If the claim is based on ministerial conduct which was not undertaken with the intention of depriving the plaintiff of his civil rights, the wrong would not be intentional and Section 2 immunity would be available.

LYNCH, J. (dissenting, with whom Nolan, J., joins). I dissent because I conclude that the defendant was immune from suit for the acts complained of under both Federal and State law.

1. Liability under Section 1983. The court concludes that the defendant was properly denied qualified immunity under 42 U.S.C. Section 1983 (1982) because the plaintiff's reinstatement was required by G. L. c. 31, Section 37, and, therefore, the defendant's conduct was ministerial and not discretionary. Although reinstatement to a classified position after a leave of absence may be ministerial in some circumstances, the record here establishes that reinstatement was discretionary. General Laws c. 31, Section 37, provides, in part, that an appointing authority may grant a leave of absence for more than fourteen days only upon the written request of the employee (or other person authorized) which shall include a detailed statement of the reason for the request. Furthermore, no leave of absence for a period of more than three months shall be granted without the prior approval

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of the administrator. The section further provides that any person who has been granted a leave of absence or an extension thereof, "pursuant to this section," shall be reinstated "at the end of the period for which the leave was granted."

The leave in this case was granted in 1977, and the plaintiff's request for reinstatement at issue was filed in June, 1981. The motion judge found that there was nothing in the record to indicate that the leave was granted with the prior approval of the administrator as required by Section 37. The court informs us that the plaintiff's leave was requested "for thirty days or until [his] personal problem has been resolved." The plaintiff appeared before the board on August 4, 1981, and he was reinstated three and one-half months later on November 23, 1981. Neither in his complaint nor by affidavit did the plaintiff claim that his request for a leave of absence complied with the requirements of Section 37. There was no evidence that the prior approval of the administrator, an essential element of Section 37, was obtained, and nowhere does it state that the termination of the leave would be at any definite time, only that the leave was for the vague period, "until my personal problem has been resolved." Neither is it clear that the request for a leave "until my personal problem has been resolved" complies with the requirement that the request contain a detailed statement of the reason for the request. I do not mean to imply that either the plaintiff or the defendant is to be criticized for agreeing to a voluntary leave of absence in the circumstances of this case. The point is that the defendant cannot be charged with responsibility for failure to perform a ministerial act until such time as it is shown that the conditions making reinstatement mandatory have been clearly established. Therefore, because the findings and allegations establish that the factual predicates for the applicability of Section 37 were missing, the official could not know the precise action that was required of him, and thus reinstatement was discretionary. I would agree that Section 37 mandates reinstatement when those factual predicates are clearly before the official in question; however, such is not the case here.

Neither do I believe that the defendant could be found to have acted with knowledge that his conduct violated any

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"clearly established" statutory or constitutional right of the defendant. The defendant could not reasonably be expected to know that the plaintiff's reinstatement on the condition of a waiver of his civil claim was unlawful. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Until recently, judges and other officials with expert knowledge frequently sought waivers of civil claims as a precondition to favorable action toward a criminal defendant. See Foley v. Lowell Div. of the Dist. Court Dep't, 398 Mass. 800, 804-805 (1986). Recently, the Supreme Court reversed a decision of the Court of Appeals for the First Circuit, invalidating such a waiver. Newton v. Rumery, 480 U.S. 386 (1987). Thus the law was by no means settled and, in fact, the Supreme Court in Newton v. Rumery, supra, ruled that even in a criminal case, such a waiver is not necessarily invalid.

I conclude, therefore, that the plaintiff has failed to allege sufficient facts either in his complaint or by affidavit to establish the defendant's liability under 42 U.S.C. Section 1983 (1982). Summary judgment in favor of the defendant should have been granted.

2. Liability under State law. The court concludes that no immunity protects public officials from liability for intentional torts while performing ministerial acts. Since I believe that the plaintiff's claim is grounded on discretionary conduct of the defendant, I would not reach the question of liability for ministerial acts and would apply our traditional rule of immunity for public officials. Although the Massachusetts Civil Rights Act is silent on the question of immunity, the court recently concluded that juridical officers are absolutely immune from suit under G. L. c. 12, Section 11I, because that statute contained no abrogation of the common law immunity of such officers. Chicopee Lions Club v. District Attorney for the Hampden Dist., 396 Mass. 244, 252 (1985). I would adhere to the logic of the Chicopee Lions Club decision and would apply the rule of immunity in effect prior to the enactment of G. L. c. 12, Section 11I. [Note Concur-1] In addition, I cannot agree that the adoption of the

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Massachusetts Tort Claims Act in a previous legislative session is any evidence of a legislative intent to create by implication in a subsequent statute a new rule of immunity for previously protected public officials. Furthermore, the fact that the Legislature abolished sovereign immunity in order to permit citizens to seek recourse against governmental agencies evinces no intent to change the law of immunity for public officials who had previously been liable for their negligent, as well as intentional, torts. The Massachusetts Tort Claims Act is not about granting immunity to individuals. It created a cause of action against governmental agencies where previously sovereign immunity had barred such suits. It eliminated claims against public employees for negligence within the scope of their employment where liability of governmental agencies was created, G. L. c. 258, Section 2, and left undisturbed employee liability where the law of governmental liability was left undisturbed, G. L. c. 258, Section 10. Clearly the statute deals primarily with governmental liability and deals only incidentally, in a limited circumstance, with immunity of individuals. In enacting the Massachusetts Civil Rights Act, therefore, the Legislature was adding new principles to a system already affected by common law axioms (as it usually does), not adopting a law to be applied in a vacuum or writing "on a common law slate recently wiped clean." Ante at 36.

The common law, as discerned by this court in Gildea v. Ellershaw, 363 Mass. 800, 820 (1973), is that nonjuridical officers are afforded immunity for their discretionary acts performed within the scope of official duty in good faith without malice or corruption. I would apply to these officers the same immunity that existed for them at the adoption of the Massachusetts

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Civil Rights Act as the court has done for juridical officers. I have previously stated that on the facts of this case the defendant's acts were discretionary. I view the allegations as insufficient to warrant the conclusion that he acted in bad faith with malice or corruption.

I reach this conclusion in full view of the policy considerations extant. In the words of the United States Supreme Court, "government officials are entitled to some form of immunity from suits for damages. As recognized at common law, public officers require this protection to shield them from undue interference with their duties and from potentially disabling threats of liability." Harlow v. Fitzgerald, supra at 806. "The privilege [of immunity] is not a badge or emolument of exalted office, but an expression of policy designed to aid in the effective functioning of government." Gildea v. Ellershaw, 363 Mass. 800, 817 (1973), quoting Barr v. Matteo, 360 U.S. 564, 574 (1959). "[T]he immunity applies equally to decisions which the public officer is required to make and to those he is permitted to make." Id. In an era where litigiousness among our citizens has reached a fever peak, and where public officials are subjected to scrutiny of their public and private affairs unparalleled in history, I see no justification to depart from a clearly established rule of immunity.