Section Review

The latest in public law: Administrative law cases

This article appeared in the July 1999 issue of the Section Review.
© 1999 Massachusetts Bar Association
Judith S.Yogman is a Massachusetts assistant attorney general. This article representsthe opinions and legal conclusions of its author and not necessarily those ofthe Office of the Attorney General. Opinions of the attorney general are formaldocuments rendered pursuant to specific statutory authority.M The following are brief summaries of opinions of theMassachusetts Supreme Judicial Court, the Appeals Court and the Superior Courtinvolving issues of administrative law, arranged in chronological order from January 1998, through March 1999. Three caveats:
  • Inmany of the summarized cases, the summarized issues were not dispositive of theoutcome, and therefore, the court's discussion of those issues may nothave any precedential effect.
  • Inmany cases, the issues summarized here are not the only, or even the primary,issues decided by the court. Therefore, before relying on these summaries,readers are cautioned to read the entire opinions to put the summarized issuesin proper context. <<li>TheSuperior Court decisions summarized here are not necessarily consistent witheach other or with the current state of the law as articulated by the appellatecourts; indeed, some of them may be on appeal and may be reversed, vacated orremanded by the time this article is published. Therefore, particular cautionis advised in relying on the summaries of Superior Court decisions.
Jan. 5, 1998 Matter of Electric Mutual Liability Insurance Co. (No. 1),426 Mass. 362 (1998) (agency's interpretation of statute, agency'sauthority). The court reviewed de novo the commissioner's interpretationof the word "state" in an insurance statute, concluded that thecommissioner's construction was contrary to the language and underlyingpurpose of the statute, and therefore rejected it. Stating that "[a]nadministrative agency has only the powers and duties expressly or impliedlyconferred on it by statute," the court held that the commissioner lackedauthority to approve a domestic insurer's redomestication to Bermuda.
Matter of Electric Mutual Liability Insurance Co. (No. 2),426 Mass. 1007 (1998) (rescript opinion) (standing). Reinsurers, who wereoutside the "area of concern" of the applicable statutes and didnot suffer "direct and certain injury" as a result of theagency's order, had no standing to seek judicial review of the orderunder G.L. c. 30A.
Jan. 14, 1998 Matter of Eisenhauer, 426 Mass. 448, cert. denied, 118 S.Ct. 2303 (1998) (due process, administrative proceedings, sanctions). Anattorney has a constitutionally protected interest in his license to practicelaw and is therefore entitled to due process in disciplinary proceedings beforethe Board of Bar Overseers. Those due process rights were satisfied where therespondent was afforded notice and an opportunity to be heard, to presentevidence and to challenge the evidence against him. Because bar disciplinaryproceedings are remedial and not criminal, the respondent is not entitled tothe full panoply of rights afforded a criminal defendant, including the rightto counsel. As to the appropriate sanction, the court "look[s] to theboard's recommendation, its experience, and its expertise to try anddispose of disciplinary matters uniformly."
Felix A. Marino Co. v. Commissioner of Labor &Industries, 426 Mass. 458 (1998) (agency's interpretation of statute,standard of judicial review, certiorari). "Because the commissioner ischarged with the implementation of the [statute, the court] will not decide theissue [of statutory construction] without consideration of her interpretation.. . ." Once the commissioner interpreted the otherwise ambiguous statute,she resolved the ambiguity, and the court will defer to that resolution as longas it is "fairly debatable." Litigants cannot avoid such deferenceto the commissioner's interpretation by seeking declaratory relief. Thestandard of review of the commissioner's decision under G.L. c. 249,§ 4 is whether the decision was "arbitrary or capricious." Theparty challenging the agency's decision "had the obligation ofrequiring the presentation of the agency record to the court."
Jan. 23, 1998 Town of Wenham v. Labor Relations Commission, 44 Mass.App. Ct. 195 (1998) (agency's interpretation of statute, standard ofjudicial review). Where "statutory language sets out a broad legislativepolicy which is left to the administrative agency to interpret, [c]ourts reviewsuch agency interpretations with a distinct inclination to deference.Affirmation of an administrative agency decision, therefore, is often less ajudicial endorsement of the decision than it is a ceding of function withinjudicially drawn boundaries." In reviewing the reasonableness of theagency's decision, the court considers the consistency of that decisionin light of prior agency decisions in similar cases.
Jan. 26, 1998 Dicerbo v. Nordberg, 8 Mass. L. Rptr. 160 (Super. Ct.1998) (Cratsley, J.) (bias, administrative proceedings). Administrative hearingofficers in unemployment compensation cases are required to remain"impartial" and therefore cannot be strictly bound to follow theagency's subregulatory legal interpretations of the applicable statute.Legal interpretations by the Board of Review are binding on the agency, but decisionsby the District Court on judicial review of such administrative decisions haveno precedential effect on future administrative proceedings in other cases.
Jan. 29, 1998 Loffredo v. Center for Addictive Behaviors, 426 Mass. 541(1998) (private right of action). The court declined to infer a private rightof action to enforce a public health statute in the absence of any indicationof legislative intent to create such a remedy. In no circumstances can aprivate cause of action be inferred solely from an agency regulation.
Feb. 4, 1998 Goldstein v. Board of Registration of Chiropractors, 426Mass. 606 (1998) (administrative proceedings, bias). A chiropractor facinglicense revocation had no due process right to "transactionalimmunity" as to any incident related to information allegedly containedin records misplaced or damaged by police investigating his wrongdoing."[T]he most that due process requires in this situation is that the boardtake into account [the respondent's] contention as to why he has incompleterecords bearing on many of the issues before it." The board gave therespondent adequate notice of the charges against him, where the "noticenot only detailed all of the different types of wrongdoing that the boardultimately found [he] had committed, but also included a‘catch-all' provision. . . ." The board's presidingofficer was not required to recuse himself based on the fact that he hadpreviously invited the prosecution's expert to enter the pool of expertswilling to serve as witnesses in board proceedings.
Feb. 17, 1998 Moore v. McManus, 8 Mass. L. Rptr. 263 (Super. Ct. 1998)(Garsh, J.) (agency). Although the Committee for Public Counsel Services is notan "agency" for purposes of Chapter 30A, it is a "publicemployer" for purposes of the Massachusetts Tort Claims Act.
March 12, 1998 Moore v. McManus, 427 Mass. 75 (1998)(administrative proceedings, evidence). "[T]he commission properlyconsidered … evidence suppressed in [a] criminal proceeding in making itsdecision to terminate [the plaintiff]," where the municipality thatemployed the police officers who illegally seized the evidence was not the samemunicipality that employed the plaintiff. In those circumstances, "nopurpose underlying the exclusionary rule would be served by excluding [theillegally seized] evidence … from the commission'sproceedings."
March 23, 1998 Bankers Life and Casualty Co. v. Commissioner ofInsurance, 427 Mass. 136 (1998) (burden of proof, standard of judicial review)."In rate review proceedings, … the burden is on the insurer tofurnish evidence that enables the commissioner ‘to establish a range ofreasonableness.' Where … the commissioner has determined that aninsurer has failed to meet its burden," the court reviews that determinationunder the arbitrary and capricious and abuse of discretion standards."[J]udicial deference to the commissioner's ‘experience,expertise, and discretion' applies particularly to her ‘choice ofmethodology' in rate cases." On judicial review, the burden is onthe challenging party to demonstrate that the commissioner's decision wasincorrect.
LeMay v. Dubois, 8 Mass. L. Rptr. 289 (Super. Ct. 1998)(Garsh, J.) (certiorari, timeliness). An inmate's challenge to thevalidity of an adjudication in a prison disciplinary proceeding, incorrectlyalleging a claim under 42 U.S.C. § 1983, should not be dismissed if itappears that the plaintiff may be entitled to relief in the nature ofcertiorari pursuant to G.L. c. 249, § 4, to correct errors of lawcommitted by a quasi-judicial tribunal. The 60-day period within which aninmate is required to file a certiorari action begins on the date of the lastadministrative action taken as a result of the hearing decision, rather thanthe date of the decision itself.
March 25, 1998 Ludvigsen v. Town of Dedham, 8 Mass. L. Rptr. 497 (Super.Ct. 1998) (Connelly, J.) (standard of judicial review). Under a statuteproviding that the trial judge "shall have jurisdiction in equity toreview all questions of fact or law and may affirm or reverse the decision ofthe board or officer and may make any appropriate decree," the TrialCourt reviewed the agency's decision under the substantial evidence andabuse of discretion standards.
April 2, 1998 Taylor's Case, 44 Mass. App. Ct. 495 (1998)(agency's authority, agency's interpretation of statute). Thereviewing board of the Department of Industrial Accidents lacked authority topermit a claimant to reopen his case in order to retract a claim after theboard had affirmed the decision of the administrative law judge, since thisauthority is not granted by statute or "necessary or incidental to thefull exercise of the [board's] powers."
Tiger, Inc. v. Hargadon, 8 Mass. L. Rptr. 307 (1998)(Doerfer, J.) (certiorari, standard of judicial review). Where there is no rightto a hearing before the ABCC, "the appropriate mechanism to seek judicialreview [of a local licensing authority decision] … is an action in thenature of certiorari." In reviewing the local authority's decisionunder G.L. c. 249, § 4, the court applied the substantial evidence andarbitrary and capricious standards applicable in actions for judicial reviewunder G.L. c. 30A and gave due weight to the local authority'sspecialized knowledge.
April 3, 1998 McLaughlin v. City of Lowell, 8 Mass. L. Rptr. 343 (Super.Ct. 1998) (Gants, J.) (exhaustion). Exhaustion of administrative remedies isnot required under the federal Individuals with Disabilities Education Actwhere the local school department effectively denied the parents access toadministrative remedies by failing to inform them that a decision had been madenot to initiate an evaluation of their daughter and that they had rights tochallenge that denial.
April 10, 1998 Lily Transportation Corp. v. Board of Assessors ofMedford, 427 Mass. 228 (1998) (declaratory relief, due process). A"request for declaratory relief is misplaced in an appeal" from anagency decision. A "decision on the merits of the appeal substantiallyprovides a declaration of rights. . . . [U]sing a rough approximation …is not wholly arbitrary. . . . Administrative convenience can provide asufficient basis for a particular means of calculation."
April 21, 1998 Ginther v. Commissioner of Insurance, 427 Mass. 319 (1998)(standing). "For a plaintiff to have standing, the injury alleged mustfall ‘within the area of concern of the statute or regulatory schemeunder which the injurious action has occurred....' Mere participation inthe administrative process does not confer standing to raise a claim in theSuperior Court."
April 23, 1998 Amgen, Inc. v. Commissioner of Insurance, 427 Mass. 357(1998) (standard of judicial review). "[The reviewing court] will notreverse or modify a decision of the board if it is based on a correctapplication of the law and on substantial evidence. . . . [The court's]review of the sufficiency of the evidence ‘is limited to "whether acontrary conclusion is not merely a possible but a necessary inference from thefindings."'"
April 27, 1998 Boutilier v. McIntire, 8 Mass. L. Rptr. 435 (Super. Ct.1998) (Donohue, J.) (additional evidence). A reviewing court has authority toremand a case to the agency to take additional evidence, pursuant to G.L. c.30A, § 14(6), sua sponte. "[T]here was ‘good reason' forfailure to present [evidence] in the original proceeding … [where] theplaintiff … attempt[ed] to present the evidence at the [administrative]hearing but was denied the opportunity."
April 29, 1998 City of Salem v. Massachusetts Commission AgainstDiscrimination, 44 Mass. App. Ct. 627 (1998) (administrative proceedings,interest, sovereign immunity). In the absence of express statutory authority,interest on MCAD awards against the commonwealth or municipalities is barred bysovereign immunity, "a doctrine which, despite different historical bases,is normally treated as applying to the commonwealth and to municipalitieswithout important distinction."
May 7, 1998 The New York Times Co. v. Commissioner of Revenue, 427Mass. 399 (1998) (regulations, bias). "Administrative agencies mustgenerally abide by their own ‘internally promulgated policies... .'[However,] a clear indication of the existence of the policy is necessary forthat policy to be binding on the [agency]." "A lawyer for an agencywho later assumes adjudicatory functions that relate to the agency'swork" need not recuse himself unless "a matter arising out of thesame factual circumstances and involving the same parties later comes beforethe [lawyer acting as a] judge or an adjudicator."
May 14, 1998 Havan-Oroomieh v. Massachusetts State Lottery Commission,8 Mass. L. Rptr. 517 (Super. Ct. 1998) (Connolly, J.) (exhaustion). The courtdeclined to stay judicial proceedings in an appeal from an administrativedecision pending exhaustion of administrative remedies where there were noestablished procedures for conducting the administrative appeal and it wasunclear whether the agency had jurisdiction to rule on the dispute.
May 26, 1998 Herlihy v. Civil Service Commission, 44 Mass. App. Ct.835, review denied, 428 Mass. 1104 (1998) (regulations). "To the extentthat [a] regulation seeks to impose restrictions on the clear language of [astatute]—which itself neither contains nor permits suchrestrictions—the regulation is invalid."
May 28, 1998 Sugrue v. Contributory Retirement Appeals Board, 45 Mass.App. Ct. 1 (1998) (standard of judicial review). "[Judicial] review [ofCRAB decisions] proceeds under a narrow and highly deferential standard. . . .[The reviewing court] may set aside or modify a CRAB decision only if, aftergiving due regard to CRAB's expertise in applying [the applicablestatute] to a variety of factual situations, the appellant has convincinglydemonstrated that CRAB's decision was, considering the entirety of therecord, . . . based upon an error of law or wholly unsupported by substantialevidence. . . . In exercising [its] limited power of review in such cases, [thecourt must be] especially cognizant of [the following:] … the ultimatediscretion belonging to CRAB on the question whether causation has been proved;. . . CRAB's unfettered discretion to reject medical panel certificationand to ‘completely discount the testimony of one expert and relyexclusively on [another]'; . . . and … the impropriety of areviewing court's substitution of its judgment for that of the expertagency when there is evidentiary support in the record for the agency'sconclusion."
June 16, 1998 Newman v. City of Malden, 8 Mass. L. Rptr. 513 (Super. Ct.1998) (Brassard, J.) (standard of judicial review). "Where there has beena plenary administrative proceeding before the Secretary, . . . and when notimely appeal of that decision has been made, a later petition [by a nonpartyto the administrative proceedings], . . . even if not barred, must be evaluatedunder the standards of [G.L. c. 30A, § 14]."
July 29, 1998 Marlborough Savings Bank v. City of Marlborough, 45 Mass.App. Ct. 250 (1998) (exhaustion). Failure to exhaust administrative remediesbars a declaratory judgment action unless the party seeking declaratory reliefaccompanies its complaint with an affidavit stating that exhaustion would befutile.
Aug. 5, 1998 Tuper v. North Adams Ambulance Service, Inc., 428 Mass.132 (1998); Commissioner of the Department of Employment & Training v.Dugan, 428 Mass. 138 (1998) (collateral estoppel). Whether judicial oradministrative findings in a wrongful discharge case have preclusive effect onsubsequent unemployment compensation proceedings and vice versa depends onwhether the issues involved in the two proceedings substantially overlap.
Aug. 27, 1998 Haverhill Municipal Hospital v. Commissioner of Divisionof Medical Assistance, 45 Mass. App. Ct. 386, review denied, 428 Mass. 1107(1998) (burden of proof, standard of judicial review). On appeal from an agencydecision under G.L. c. 30A, § 14, the appellant has the burden ofdemonstrating the invalidity of the agency's decision. Where theagency's decision cannot be justified by the applicable regulations, thedecision is arbitrary and capricious and an abuse of the agency'sdiscretion.
Sept. 18, 1998 Commissioners of Hampden County v. Town of Agawam, 45Mass. App. Ct. 481 (1998) (standing). "[G]overnmental entities, such asthe [county] commissioners, may not challenge the constitutionality of Statestatutes even though the impact of the same may diminish or abrogate propertyrights."
Oct. 9, 1998 Analogic Corp. v. Board of Assessors of Peabody, 45 Mass.App. Ct. 605 (1998) (standard of judicial review). "Although the[Appellate Tax B]oard is exempt from the provisions of the State AdministrativeProcedure Act, . . . it is subject to ‘general principles affectingadministrative decisions and judicial review of them. . . .' The boardmay rely upon any method of valuation that is reasonable and supported by therecord, and it is ‘not required to believe the testimony of anyparticular witness,'" including an expert appraiser.
Town of Wakefield v. Labor Relations Commission, 45 Mass.App. Ct. 630, review denied, 428 Mass. 1108 (1998) (standard of judicialreview, sanctions). "[T]he choice of remedy lies within the discretion ofthe commission. . . . No such deference [to the commission's disposition]is appropriate, however, when the commission commits an error of law."
Oct. 16, 1998 O'Neill v. City Manager of Cambridge, 428 Mass. 257(1998) (exhaustion). "‘[A]dministrative remedies should beexhausted before resort to the courts,' but exhaustion cannot be requiredwhere no administrative remedy exists."
Oct. 19, 1998 Tennessee Gas Pipeline Co. v. Board of Assessors ofAgawam, 428 Mass. 261 (1998) (standard of judicial review, substantialevidence). The decision of the Appellate Tax Board was reversed as unsupportedby substantial evidence where the "board did not offer any justifiablereason for disregarding the taxpayer's evidence.... ‘[E]vidence ofa party having the burden of proof may not be disbelieved without an explicitand objectively adequate reason.'"
Oct. 22, 1998 Fran's Lunch, Inc. v. Alcoholic Beverages ControlCommission, 45 Mass. App. Ct. 663 (1998) (person, administrative proceedings,evidence). "It is a generally accepted rule of statutory constructionthat the word ‘person' when used in a statute will not ordinarilybe construed to include the State or political subdivisions thereof.""[W]here the commission's sting operation was conducted inaccordance with published guidelines designed to insure that such operationswere conducted fairly, the commission could properly rely on thisevidence" as the basis for suspending the plaintiff's liquorlicense.
Oct. 23, 1998 Vembu v. University of Massachusetts, 9 Mass. L. Rptr. 211(Super. Ct. 1998) (Fremont-Smith, J.) (agency, certiorari, timeliness). It isnot clear whether the University of Massachusetts is an "agency"within the meaning of G.L. c. 30A. The 60-day deadline for filing a certiorari actionunder G.L. c. 249, § 4 begins to run when the plaintiff receives notice ofthe agency's final decision.
Oct. 29, 1998 Moynahan v. Essex County Retirement Board, 9 Mass. L.Rptr. 232 (Super. Ct. 1998) (Sikora, J.) (timeliness, estoppel). Noncompliancewith deadlines contained in Superior Court Standing Order 1-96 does not requiredismissal because the deadlines are directory rather than mandatory."[T]he principle of promissory or equitable estoppel will usually notoperate against governmental bodies."
Nov. 9, 1998 Hotchkiss v. State Racing Commission, 45 Mass. App. Ct.684 (1998) (standard of judicial review, agency's interpretation ofstatute, substantial evidence). Where "the commission's decision… was supported by substantial evidence, was within its unusually broaddiscretion and reflected no error of law, . . . [r]eversing thecommission's determination would amount to substitution of judicialjudgment for that of an expert agency which had made a rational, discretionarychoice in implementing the statutory scheme it has been empowered by theLegislature to oversee—an outcome reviewing courts must especially eschewin our system of separation of powers. . . . Fundamental precepts of judicialreview mandate judicial deference to any expert agency's interpretationand application of the statute within its charge. . . . [T]he ‘rationalbasis' standard for reviewing rulemaking … also governs theapplication of the ‘arbitrary or capricious' or ‘abuse ofdiscretion' standard in reviewing agency discretion. . . . [T]hey sharethe basic requirement that the agency action reflect ‘reasoned decisionmaking within the particular statutory guidelines.'" Hearsayevidence "that bore the indicia of reliability and rational probativeforce … qualified … for consideration in the substantial evidencecalculus." Character evidence "was essentially irrelevant inevaluating the validity of disciplinary action by a regulatory agency chargedwith suppressing whatever undermines public confidence in the integrity of theregulated activity."
Nov. 12, 1998 A.W. Chesterton Co. v. Commissioner of Revenue, 45 Mass.App. Ct. 702 (1998) (standard of judicial review, substantial evidence). Where"[t]he board's truncated analysis of the evidence did not take intoaccount the severely constrained limits of and considerable shortcomings in [aprincipal witness's] testimony," and that witness's"opinion testimony … did not have sufficient basis in the necessaryfacts to be of substantial probative force," the court concluded that,"if the ‘substantial evidence' standard is to have meaning,the evidence on which the board relied … cannot be consideredsubstantial."
Dec. 8, 1998 Cablevision Systems Corporation v. Department ofTelecommunications & Energy, 428 Mass. 436 (1998) (standing). "[O]nlyan ‘aggrieved party in interest' may appeal from a decision"of the Department of Telecommunications and Energy. "A limitedparticipant does not qualify as a party in interest entitled to appealdepartment decisions."
Jan. 26, 1999 Evans v. Contributory Retirement Appeals Board, 46 Mass.App. Ct. 229 (1999) (agency's interpretation of statute). "In thenotoriously difficult, sometimes tortuous field of retirement rights andcalculations, there is particular reason for giving deference to the agency'sexpertness."
Feb. 5, 1999Massachusetts Eye & Ear Infirmary v. Commissioner ofthe Division of Medical Assistance, 428 Mass. 805 (1999) (regulations,sanctions). "Generally, [courts] accord … regulations the samedeference [they] extend to statutes. . . . The divisions's standardlessregulation … is fatal to the division's defense of its regulatoryscheme. The division may impose sanctions, . . . [b]ut the division may only doso if it defines the terms on which the sanctions will be based."
Feb. 12, 1999 St. Botolph Citizens Committee, Inc. v. BostonRedevelopment Authority, 429 Mass. 1 (1999) (certiorari). "Certiorari isa limited procedure which may be used to correct substantial errors of lawcommitted by a judicial or quasi-judicial tribunal (but not administrative,political, or legislative decisions). Certiorari cannot be requested whereadministrative remedies terminating in judicial review are available andunexhausted."
Feb. 22, 1999 Dunn v. Contributory Retirement Appeal Board, 46 Mass.App. Ct. 359 (1999) (administrative proceedings, findings, timeliness). Whereparties to a CRAB proceeding agree to forgo live witness testimony and rely,instead, on transcripts of the hearing before the local retirement board, CRABis not bound by the findings of the local board but must find the facts denovo. If CRAB fails to render a decision within the statutorily prescribed timelimit, the decision of the administrative magistrate does not become final."The statutory time [limit] is directory, not mandatory."
March 1, 1999 Douglas Environmental Associates, Inc. v. Department ofEnvironmental Protection, 429 Mass. 71 (1999) (administrative record). In anappeal from a non-adjudicatory proceeding, the court may "allow additionsto the [administrative] record … consist[ing] of any document or materialthat the agency decision makers directly or indirectly considered, includingevidence contrary to the agency's position, but excluding documents thatset forth motives and thought processes used in arriving at the agency'sdecision."
March 11, 1999 Rudow v. Commissioner of the Division of MedicalAssistance, 429 Mass. 218 (1999) (agency's interpretation of statute,regulations). "[Courts] are not … bound to adhere to a positiontaken by the agency … where … there are [no] … regulationsdirectly addressing the issue. ‘Absent a properly promulgated regulation,"to the extent that an agency determination involves a question of law,it is subject to de novo judicial review. . . ."' [I]nterpretiverule making is not controlling upon the courts."
March 22, 1999 Briggs v. Commonwealth, 429 Mass. 241 (1999)(agency's interpretation of statute). "Because … Congress hadnot ‘directly spoken to the precise question at issue. . . .'deference to the interpretation of … the [federal] agency charged withthe interpretation and enforcement of the [applicable] statutes is warranted. .. . Deference to the [agency's] interpretation is particularlyappropriate where … congressional reports reveal that Congress was awareof [the agency's] interpretation. . . ."
March 24, 1999 Tambrands, Inc. v. Commissioner of Revenue, 46 Mass. App.Ct. 522 (1999) (standard of judicial review). "To the extent that [a]question is one of fact, the board's findings are entitled to deference,so long as there is substantial evidence in the record to support the findings.To the extent [a] question … is a mixed question of law and fact, thereagain courts accord the Appellate Tax Board ‘some deference,' inpart out of recognition of the board's specialized knowledge in the taxfield."
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