403 Mass. 1010

December 19, 1988

James M. Smith for the plaintiff.

Richard T. Egan, City Solicitor, for the city of Springfield.

The plaintiff, a former police officer, appeals from a judgment of the Superior Court entered following allowance of a motion for summary judgment of the defendant city of Springfield. The plaintiff maintains that a Superior Court judge erred in ruling, as a matter of law, that the defendant did not violate his rights under either the United States or Massachusetts Constitutions when its police department interrogated him.

This case arises from the police department's internal investigation described in Springfield v. Civil Service Commission, ante 612 (1988), a case decided today. Because the present case reviews an action for declaratory and injunctive relief and Springfield arose from an action in the nature of certiorari under G. L. c. 249, Section 4 (1986 ed.), we employ a different standard of review here. In this case we look only at whether the moving party deserved summary judgment as a matter of law under Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974), and not whether the reviewing court correctly applied the standard of review in cases in the nature of certiorari.

As we ruled in Carney v. Springfield, ante 604 (1988), another case decided today, and Springfield v. Civil Service Commission, supra, art. 12 of the Massachusetts Declaration of Rights requires that transactional immunity be granted before an employee may be compelled to answer potentially incriminating questions. No such immunity was granted in this case. We, therefore, reverse the judgment below. Accordingly, we need not reach the issue whether the questions posed to this police officer were specifically, narrowly and directly related to his official duties.

The judgment is reversed and a new judgment is to be entered declaring the rights of the parties in the case.

So ordered.


403 Mass. 1010

January 5, 1989

Francis X. Bellotti, Attorney General, Frederick W. Riley, Barbara A. H. Smith & Andrew M. Zaikis, Assistant Attorneys General, for the plaintiff, submitted a brief.

This complaint by the Massachusetts Parole Board pursuant to G. L. c. 211, Section 3 (1986 ed.), is before us on reservation and report by a single

Page 1011

justice of this court. The case, involving the propriety of a grant of habeas corpus relief by the Superior Court which restored Richard Brusgulis to the parole status he enjoyed prior to revocation of his parole on the basis of a criminal indictment against him, is rendered moot by the subsequent revocation of parole based on new and separate indictments. We note, however, that since parole constitutes a variation on imprisonment, Morrissey v. Brewer, 408 U.S. 471, 477 (1972), and not an unrestrained release from confinement, a grant of declaratory relief rather than a writ of habeas corpus is the appropriate remedy to be sought or granted where the revocation of parole is challenged. See Pina v. Superintendent, Mass. Correctional Inst., Walpole, 376 Mass. 659, 664 (1978).

The case is remanded to the county court for the entry of an order dismissing the complaint.

So ordered.


[Note 1] Superior Court Department of the Trial Court.