Opinion
10-P-968
08-09-2011
JOHN P. BULGER v. STATE BOARD OF RETIREMENT & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Although this is a case with an extensive procedural history, the only issue before us is whether the single justice abused his discretion when he denied the plaintiff's motion to file a late notice of appeal, pursuant to Mass.R.A.P. 14(b), as amended, 378 Mass. 939 (1979). The plaintiff argues that his motion should have been allowed because the delay was caused by his unique family circumstances and a death in his counsel's family. He maintains that the State Retirement Board (Board) would not be prejudiced because the appeal could proceed based on the existing administrative record. We affirm.
See State Bd. of Retirement v. Bulger, 446 Mass. 169, 169-173 (2006).
As the plaintiff's motion to file a late notice of appeal was properly denied, we do not address the substantive argument raised in his brief, that the forfeiture of his State pension, worth up to $860,000, was 'grossly disproportional to the gravity of [his] offense and federal sentence, and therefore violate[d] the Eighth Amendment to the United States Constitution.'
The plaintiff served as a magistrate of the Boston Juvenile Court for nearly twenty years until his retirement in April, 2001, when he began to receive his monthly pension from the Commonwealth. State Bd. of Retirement v. Bulger, 446 Mass. 169, 170 (2006). In April, 2003, he pleaded guilty to two counts of perjury, 18 U.S.C. § 1623 (2000), and two counts of obstruction of justice, 18 U.S.C. § 1503 (2000), in the United States District Court for the District of Massachusetts, for falsely testifying, under oath, before a grand jury investigating his brother's alleged money laundering, racketeering, and other criminal offenses. Id. at 171. As a result, the Board initiated proceedings to rescind Bulger's retirement allowance and to retrieve the $69,874.28 he had already received. Id. at 172.
The Supreme Judicial Court held that Bulger's crimes 'violated the fundamental tenets of the code [set forth in S.J.C. Rule 3:12, as amended, 427 Mass. 1322 (1998)] and of his oath of office' and, pursuant to G. L. c. 32, § 15(4), 'mandated the forfeiture of his retirement allowance.' Id. at 179-180.
On remand to the West Roxbury Division of the Boston Municipal Court, in October, 2006, Bulger sought to revive his argument, made during his initial petition for judicial review of the Board's decision, 'that the forfeiture of his pension benefits constituted an excessive fine in violation of the Eighth Amendment to the United States Constitution.' Finding that the pension forfeiture was not an excessive fine because it was not 'grossly disproportional to the gravity of [his] offense,' the judge dismissed the claim. The plaintiff then sought certiorari review, G. L. c. 249, § 4, in Superior Court, where the judge allowed the Board's motion for judgment on the pleadings and affirmed the Municipal Court judge's decision. Notice of entry of the judgment was sent to the parties on April 23, 2009.
The Supreme Judicial Court did not address the Eighth Amendment argument because the trial judge had reversed the Board on other grounds and did not reach the constitutional issue. The parties did not brief that issue in the first appeal. State Bd. of Retirement v. Bulger, 446 Mass. at 173 n.4.
Citing MacLean v. State Bd. of Retirement, 432 Mass. 339, 347 (2000), and Maher v. Retirement Bd. of Quincy, 452 Mass. 517, 522 (2008), the judge concluded that Bulger had not met 'his burden of proof that the 'fine' imposed was excessive.'
On July 13, 2009, eighty-one days after entry of judgment, Bulger filed a motion for extension of time to file a notice of appeal, pursuant to Mass.R.A.P. 4(c), as amended, 378 Mass. 928 (1979). In support of his motion, he filed an affidavit from counsel, stating that, because counsel was involved in making funeral arrangements for his uncle, he had not sent the decision to his client until May 1, 2009. Counsel explained the remaining seventy-three days of delay only by stating 'due to numerous schedule conflicts, both personal and professional in nature, my client and I were not able to meet prior to June 23, 2009, the deadline for filing an appeal.' The Board opposed the motion, arguing the plaintiff had not shown 'excusable neglect.' On July 20, 2009, a judge of the Superior Court denied the motion for an extension, and the plaintiff did not appeal.
'[I]f the Commonwealth or an officer or agency thereof is a party, the notice of appeal may be filed . . . within sixty days' of the entry of judgment.' Mass.R.A.P. 4(a), as amended, 430 Mass. 1603 (1999).
Nine months later, on April 20, 2010, represented by new counsel, Bulger filed a motion with the single justice of this court for leave to file a late notice of appeal, pursuant to Mass.R.A.P. 14(b), as amended, 378 Mass. 939 (1979). Accompanying that motion was a second affidavit from prior counsel. The only new information in that affidavit was an explanation that counsel's reluctance to file the appeal without extensive consultation with his client's family stemmed from the extensive and negative media coverage that had accompanied 'every court event and ruling' relating to this case. The single justice denied the motion.
'The motion is denied as excusable neglect has not been shown. Bernard v. United Brands, 27 Mass. App. Ct. 415, 418 n.8 (1989); Chu Tai v. City of Boston, 45 Mass. App. Ct. 220, 222 (1998); Shaev v. Alvord, 66 Mass. App. Ct. 910, 911-912 (2006).'
Discussion. ''[R]ule 14(b) authorizes this court, or a single justice thereof, to grant an enlargement of time for up to one year 'for good cause shown.'' Commonwealth v. Trussell, 68 Mass. App. Ct. 452, 454 (2007). The good cause standard is 'no less exacting than 'excusable neglect." Troy Indus., Inc. v. Samson Mfg. Corp., 76 Mass App. Ct. 575, 581 (2010), quoting from Trussell, supra at 454. '[E]xcusable neglect 'is not meant to cover the usual excuse that the lawyer is too busy, which can be used, perhaps truthfully, in almost every case." Feltch v. General Rental Co., 383 Mass. 603, 614 (1981), quoting from Stern, Changes in the Federal Appellate Rules, 41 F.R.D. 297, 299 (1967). See also Mailer v. Mailer, 387 Mass. 401, 406 (1982) ('Excusable neglect calls for unique or extraordinary circumstances').
Judged by this standard, the plaintiff's case fails. Because an agency of the Commonwealth was a party to this litigation, the plaintiff had sixty days, rather than thirty, to file a notice of appeal. Counsel's family obligations delayed his notifying his client only a little more than a week; his affidavit simply does not present an adequate explanation for why he, his client, and his client's family could not reach an agreement on whether to file a notice of appeal within the remaining fifty-two days. In addition, it is relevant that the plaintiff allowed an additional nine months to pass before his new counsel sought relief in this court, pursuant to Mass.R.A.P. 14(b).
For the first time, the plaintiff also argues before us that we should distinguish a 'criminal' good cause standard from a 'civil' good cause standard and apply the former to the plaintiff's case because the forfeiture of his pension is 'quasi-criminal' or 'penal in nature.' This argument was not made to the single justice; therefore we decline to reach it. See Springfield v. Department of Telecommunications & Cable, 457 Mass. 562, 573 (2010) ('We acknowledge that there may always be 'exceptional cases or particular circumstances which will prompt a reviewing or appellate court, where injustice might otherwise result, to consider questions of law which were neither pressed nor passed upon by the court or administrative agency below' [emphasis in original] . . . . This is not such a case'), quoting from Albert v. Municipal Ct. of Boston, 388 Mass. 491, 494 (1983). In addition, the plaintiff's argument based upon Yee v. Escondido, 503 U.S. 519 (1992) is misplaced. In Yee, the Court held that '[o]nce a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below.' Id. at 534. The plaintiff's new argument relates not to his Eighth Amendment claim, but to a rule of Massachusetts appellate procedure.
We see no error and no abuse of discretion in the denial of the motion.
Order of the single justice denying motion to file notice of appeal late affirmed.
By the Court (Grasso, Graham & Hanlon, JJ.), Clerk