Chapter 21: Civil Procedure and Practice

Annual Survey of Massachusetts Law

Volume 1958

Article 25

1-1-1958

Chapter 21: Civil Procedure and Practice

Wendell F. Grimes

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PART I I I

Adjective Law

CHAPTER 21

Civil Procedure and Practice

WENDELL F. GRIMES

§21.1. Declaratory judgments: General. By reason of the paucity of any important procedural developments during the 1958 SURVEY year, it has been deemed advisable in this chapter briefly to review declaratory judgment procedure in Massachusetts. The number of cases involving declaratory relief 1 seems to indicate a growing aware-ness by the bar of the advantages of this type of proceeding, to wit, that "there is a social and private interest in stability which should not have to wait upon manifested violence, breach or hostility as a condition of societal cognizance and adjudication." 2

Chapter 231A of the General Laws superseded prior rule making declaratory relief available in the Probate, Superior, and Supreme

Ju-WENDELL F. GRIMES is Professor of Law at Boston College Law School. He is a member of the Massachusetts and Federal Bars.

The author wishes to acknowledge the assistance of Louis M. Bernstein, a member of the Board of Student Editors, in the preparation of this chapter.

§21.1. 1 Murphy v. City of Boston, 1958 Mass. Adv. Sh. 845, 150 N.E.2d 542; De-fiance Printed Circuit Corp. v. Goodwin, 1958 Mass. Adv. Sh. 755, 150 N.E.2d 19; Luke v. Massachusetts Turnpike Authority, 1958 Mass. Adv. Sh. 567, 149 N.E.2d 225; Lepore v. Atlantic Corp., 1958 Mass. Adv. Sh. 335, 148 N.E.2d 279; Gloucester Ice and Cold Storage Co. v. Assessors of Gloucester, 1958 Mass. Adv. Sh. 247, 147 N.E.2d 820; Brown v. Commissioner of Correction, 336 Mass. 718, 147 N.E.2d 782 (1958); Berube v. Selectmen of Edgartown, 336 Mass. 634, 147 N.E.2d 180 (1958); Lynch v. City of Fall River, 336 Mass. 558, 147 N.E.2d 152 (1958); DiMare v. Capaldi, 336 Mass. 497, 146 N.E.2d 517 (1957); Streeter v. City of Worcester, 336 Mass. 469, 146 N.E.2d 514 (1957); Richmond-Wellington Hotel Co. v. Collins, 336 Mass. 360, 145 N.E.2d 818 (1957); Brunton v. Easthampton Savings Bank, 336 Mass. 345, 145 N.E.2d 696 (1957); Stow v. Commissioner of Corporations and Taxation, 336 Mass. 337, 145 N.E.2d 720 (1957); Middlesex Mutual Fire Insurance Co. v. Fireman's Fund Insurance Co., 336 Mass. 315, 145 N.E.2d 723 (1957).

228

§21.2

dicial Courts and now embodies a statutory remedy made available to the Land Court as well as those courts above mentioned.s Section I empowers the making of binding determinations among parties among whom an actual controversy has arisen either before or after a breach or violation of legal relations. The existence of a remedy at law or in equity by which relief could otherwise be claimed is no bar to declaratory relief.4

Section 2 permits use of declaratory procedure not only in cases in-volving construction of deeds, wills, and contracts but also to secure determinations of rights under any statute, ordinance or administra-tive regulation including questions of construction or validity. This mode of review is expressly recognized in Section 7 of Chapter 30A, which is the Administrative Procedure Act. Further, declaratory re-lief is available in tax questions.5 _{Whether relief is granted is a}

ques-tion within the discreques-tion of the court, but Secques-tion 3 requires the court to state in the record its reasons for refusal to act.

§21.2. Declaratory Judgments: Parties. Section 8 of Chapter 23lA requires the joinder of all parties who would be affected. In Kilroy v.

O'Connorl the petitioner was a county treasurer who sought deter-mination of the right of O'Connor to take office as county commis-sioner. Failure to have made the county a party was the basis of the Supreme Judicial Court's reversal of relief granted below.

Relief will be denied where, if given, final termination of the con-troversy would not be effected. Failure to join all necessary parties is an obvious basis for refusal to entertain a petition. On the other hand, if petitioners validly represent a class, failure to join all mem-bers of the class will not bar granting relief. In Leonard v. Eastern

Massachusetts Street Ry. CO.,2 the petitioners were chairman and finan-cial secretary of a union seeking declaratory relief concerning contract interpretation over grievance procedure. In its decision the Supreme Judicial Court recognized the practical impossibility of joining all members of the union, and held that if the elements of a valid class suit were manifest relief could be granted since such relief would bind all members of the class in whose behalf the suit was brought. It is to be noted, however, that declaratory relief under Chapter 23lA is not to be confused with the suit, authorized by Section 53 of C.L., c. 40, by ten taxpayers to restrain illegal expenditure. In Povey v.

S See Note, 30 B.U.L. Rev. 259 (1950).

4 Meenes v. Goldberg, 331 Mass. 688, 122 N.E.2d 356 (1954).

5 Madden v. State Tax Commission, 333 Mass. 734, 133 N.E.2d 252 (1956). In Madden the Court held that notwithstanding the "exclusive" provision in G.L., c. 62, §48, a bill for declaratory relief may be entertained within the discretion of the court; the "exclusive" provision merely determines remedies available as a matter of right. Declaratory relief is not available in federal tax matters. 28 U.S.C. §2201 (1952).

School Committee

of

sought declaratory relief against the appointment by the school com-mittee of a principal. In denying relief the Supreme Judicial Court pointed out that such rights as taxpayers have are given to them by Section 53 of G.L., c. 40, and taxpayers acting under a petition, for declaratory relief cannot make themselves parties to the appointment and make appointing officers account for their acts to such taxpayers who volunteer to bring suit. The Court further pointed out that a group of taxpayers for purposes of declaratory relief did not qualify validly as plaintiffs in a class suit and thus the result in the suit would not bind other taxpayers. For the above reasons declaratory relief under Chapter 23lA seems foreclosed to taxpayers.

§21.3. Declaratory judgments: Actual controversy. At the time of presentation of the bill there must be an actual present controversy. That there was a dispute is not a sufficient basis for entertaining a bill. Here as elsewhere mootness is a fatal barrier.l The meaning of "actual controversy" is defined in School Committee

of

of Schools of

tenure, solution of which depended upon statutory interpretation. In its decision which held that a proper case for declaratory relief had been stated, the Court said:

The question raised by each of the demurrers is whether the bill discloses the existence of an actual controversy within the meaning of c. 231A, §l, of such a nature that it can and should be terminated by a decree declaring the rights of the parties, or whether the allegations contained in the bill go no farther than to disclose a mere difference of opinion between the parties and an attempt on the part of the plaintiffs to secure an advisory opinion which will serve them as a guide to future action.

An "actual controversy," as those words are employed in c. 231A, is not limited to instances where the rights of one party have been impaired or damaged by the act of another. One of the benefits of the declaratory procedure is that it does not re-quire one to incur the risk of violating some term of a contract or of invading some right of the other, even if done in good faith, before he may have relief. Indeed, our act provides that one may seek a declaratory judgment or decree "either before or after a breach or violation thereof has occurred in any case in which an actual controversy has arisen." G.L. (Ter. Ed.) c. 231A, §l. We think a pleading is sufficient if it sets forth a real dispute caused by the assertion by one party of a legal relation, status or right in

3333 Mass. 70. 127 N.E.2d 925 (1955).

§21.3. 1 Clinton Housing Authority v. Finance Committee of Clinton. 329 Mass. 495. 109 N.E.2d 449 (1952); Grand Jurors for Worcester County v. Commissioner of Corporations and Taxation. 329 Mass. 89. 106 N.E.2d 539 (1952); Cole v. Chief of Police of Fall River. 312 Mass. 523. 45 N.E.2d 400 (1942).

230 1958 ANNUAL SURVEY OF MASSACHUSETTS LAW §21.4

which he has a definite interest, and the denial of such assertion by another party also having a definite interest in the subject matter, where the circumstances attending the dispute plainly in-dicate that unless the matter is adjusted such antagonistic claims will almost immediately and inevitably lead to litigation . . . .

Each of the bills, we think, sets forth a controversy and seeks not merely advice but a declaratory decree adjudicating the tenure of each defendant in the position to which he was elected, which will settle a matter of public interest and terminate the contro-versy. It follows that the interlocutory decrees sustaining the de-murrers are reversed and decrees overruling them are to be en-tered.3

§21.4. Declaratory judgments: Discretion. The nature of declara-tory relief indicates that it is discretionary. Section 3 requires the trial judge, in the event he refuses to entertain the bill, to state his reasons for so refusing. What is the scope of review? In some juris-dictions abuse of discretion must be shown.1 In Massachusetts the rule is that "[t]his being a suit in equity, this court upon appeal will itself decide the question of discretion . . . giving some weight, how-ever, to the action of the trial judge." 2 It is, therefore, incumbent

upon counsel to include all relevant factors to develop adequately the situation for the reviewing authority. So also the trial judge should indicate clearly not only that his action is based on discretion but also on what factors were considered in his ultimate decision.

3820 Mass. at 517-518, 520,70 N.E.2d at 800, 801.

§21.4. 1 Delno v. Market Street Ry. Co., 124 F.2d 965, 967-968 (9th Cir. 1942) (reversal if no reasonable man would agree with trial court's action); Steen v. City of Los Angeles, 182 P.2d 602 (Cal. App. 1947), aU'd, 81 Cal. 2d 542, 190 P.2d 987

(1948) (must be clear showing that trial court abused its discretion).