Costarelli v. Panora

MEMORANDUM AND ORDER

SKINNER, District Judge.

This is an action under 42 U.S.C. § 1983 in which the plaintiff seeks a declaration that M.G.L. c. 90 § 24(2)(c) is unconstitutional and further seeks an injunction of its enforcement against him and all others similarly situated. A three-judge district court has been convened pursuant to 28 U.S.C. §§ 2281 and 2284. The defendant has moved to dismiss the action under Fed.R. Civ.P. 12(b)(6).

The plaintiff was charged in a Massachusetts district court with using a motor vehicle without authority in violation of M.G.L. c. 90 § 24(2)(a). His motion for a trial by jury in the district court was denied. At the trial before the judge, the plaintiff remained silent, offered no evidence, and after the finding of guilty, took a timely appeal to the Superior Court, in which court he was entitled to a trial de novo to a jury.

Under the mandatory provisions of M.G.L. c. 90 § 24(2)(c), the statute here challenged, the defendant Registrar of Motor Vehicles was required to revoke the plaintiff’s license forthwith, before the case was heard in the Superior Court. He was restrained from doing so by a Temporary Restraining Order entered in this case by Judge Tauro. The Temporary Restraining Order has been continued in force during the pendency of this action.

The plaintiff attacks the mandatory revocation provision on two grounds:

(1) That he suffered deprivation of a valuable right without due process

(2) That the revocation provision of M.G.L. c. 90 § 2(a)(c) [§ 24(2)(a, c)] constitutes an unconstitutional penalty on the right to trial by jury in the Massachusetts “two tier trial de novo system.”

The first issue was determined adversely to the plaintiff by a three-judge court in Almeida v. Lucey, 372 F.Supp. 109 (D.Mass.), aff’d, 419 U.S. 806, 95 S.Ct. 22, 42 L.Ed.2d 36 (1974). The plaintiff seeks to distinguish this case on the ground that unauthorized use of a motor vehicle, as compared to the offense of driving under the influence of intoxicating liquor in Almeida, is not related to highway safety. Thus the revocation of the license is “a criminal penalty.” In our view, the cases are indistinguishable. Violation of what is popularly referred to as the “joy riding” statute has a readily discernible relationship to highway safety, and, in any case, a license, even though it is a “right” for purposes of procedural due process, may be revoked for its abuse, regardless of the impact on public safety.

Even though Almeida was summarily affirmed, we rely on it as persuasive, not controlling precedent. Examination of the jurisdictional statement submitted to the Supreme Court on appeal reveals that the issue decided by the District Court was expressly excluded from the jurisdictional statement, and the issues presented were those which the District Court had expressly declined to consider. No issue was “properly presented” within the meaning of Hicks v. Miranda, 422 U.S. 332, 345, n. 14, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975), and consequently no precedential value can be assigned to the affirmance.¹

In his dissent in Almeida, Judge Tauro expressed concern that the “two-tier” system of criminal trials might be unconstitutional, and the revocation of the license thus resulted from an unconstitutional proceeding in the district court. While we agree with Judge Tauro that Ludwig v. Commonwealth, 427 U.S. 618, 96 S.Ct. 2781, 49 L.Ed.2d 732 (1976), does not dispose of all the issues in this case, it does dispose of that question.

In Ludwig, the Supreme Court sustained the constitutionality of the two-tier system on the ground that it did not burden an accused’s right to a jury trial because the accused could effectively by-pass the district court trial by admitting to a finding of guilt, or as the plaintiff did, by electing not to present a defense, and proceeding directly to the Superior Court. The court recognized, more or less as an aside, that there might be “adverse collateral consequences” of a conviction in the district court, such as loss of license. Ludwig’s offense did result in an automatic loss of license, but the Registrar could in his discretion rescind the revocation at any time. The court did not squarely face' or answer the question raised by the rationale of Ludwig, and present in this case:

Does the Massachusetts system pose to a person in the plaintiff’s position a constitutionally impermissible choice in permitting him to by-pass the first tier trial only at the price of losing his license without a hearing?

The plaintiff asserts that due process requires that the hearing be before the Registrar of Motor Vehicles, a position which was adopted by Judge Tauro in his dissent in Almeida, supra.

We are of the opinion, however, that the hearing before the district court judge places no greater burden on the exercise of the right to jury trial, and poses no more constitutionally impermissible a choice than would a hearing before the Registrar of Motor Vehicles. We adopt the reasons stated in the penultimate paragraph of the majority opinion in Almeida, supra, p. 112.

Accordingly, the Complaint must be dismissed for failure to state a claim upon which relief can be granted.

1 . The state of Almeida points up yet another peril in “the Hicks rule” in addition to those persuasively exposed by Justice Brennan in his dissent in Colorado Springs Amusement, Ltd. v. Rizzo, - U.S. -, 96 S.Ct. 3228, 49 L.Ed.2d 1222 (1976).