The question whether Massachusetts law authorizes the
Massachusetts Attorney General to appeal from the Federal District
Court's judgment against certain state officers he represented in
that court notwithstanding their expressed opposition to the
appeal, is certified to the Massachusetts Supreme Judicial Court in
the absence of any clearly controlling decision on the question by
that court.
415 F.
Supp. 485, question certified.
PER CURIAM.
This Court, on its own motion, hereby certifies to the Supreme
Judicial Court of the Commonwealth of Massachusetts, pursuant to
Rule 3:21 of the Rules of that court, the question of law
hereinafter set forth.
Statement of Facts
On March 29, 1976, a three-judge Federal District Court in the
District of Massachusetts, after dismissing the Commonwealth of
Massachusetts and its Division of Civil Service as parties
defendant, entered a judgment for Helen B. Feeney against the
Massachusetts Director of Civil Service (now designated "Personnel
Administrator of the Commonwealth") and members of the
Massachusetts Civil Service Commission, declaring unconstitutional
the Massachusetts veterans' preference statute, Mass.Gen.Laws c.
31, $ 23, and enjoining its enforcement by said state officers.
415 F.
Supp. 485 (1976). The Attorney General for the Commonwealth,
who appeared for all parties defendant in the District Court, has
filed a Jurisdictional Statement in this Court stating, at 1-2,
that the same is filed "on behalf of the Personnel Administrator of
the Commonwealth and the Massachusetts
Page 429 U. S. 67
Civil Service Commission," the state officers against whom the
District Court judgment was entered. However, the Personnel
Administrator of the Commonwealth and the members of the Civil
Service Commission have advised the Clerk of this Court, by letter
of September 1, 1976, that "the appeal is without our
authorization," that "each of us informed the Attorney General of
our request that this matter not be appealed," and that "we request
that the Court dismiss the appeal." A stipulation filed in the
District Court dated June 21, 1976, signed by the Attorney General
and the attorney for appellee, confirms these statements in the
letter, and states further that the Governor of the Commonwealth
has also requested the Attorney General not to prosecute an
appeal.
The Attorney General, on October 8, 1976, filed a brief in this
Court supporting his authority under state law to docket the
appeal.
It therefore appears that there are involved in the proceeding
before this Court questions of Massachusetts law which may be
determinative of such cause, with respect to which there seem to be
no clearly controlling precedents in the decisions of the
Massachusetts Supreme Judicial Court. Accordingly, this Court
desires to certify to the Supreme Judicial Court of Massachusetts,
pursuant to Rule 3:21 of its Rules, the following question:
Question Certified
Under the circumstances herein presented, does Massachusetts law
authorize the Attorney General of the Commonwealth to prosecute an
appeal to this Court from the judgment of the District Court
without the consent and over the expressed objections of the state
officers against whom the judgment of the District Court was
entered?
MR. JUSTICE BLACKMUN would dismiss the appeal for want of
jurisdiction.
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