Annual Survey of Massachusetts Law
Volume 1979
Article 11
1-1-1979
Chapter 8: State and Local Government
John W. Delaney
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CHAPTER 8
State and Local Government
JOHN W. DELANEY"
§8.1. Election-Public Funding of Referenda Campaigns by Local Government. In Anderson v. City of Boston 1 the Supreme Judicial Court considered whether Boston could expend public funds in a campaign to achieve passage of an amendment to the Massachusetts Constitution permitting the taxation of real property by class (the classification amendment).2 In a landmark opinion, apparently the first by the high-est court of any state, the Supreme Judicial Court ruled that Boston could not do so.
The city had passed an ordinance in June 1978 which authorized, subject to appropriation, the expenditure of city funds for the purpose of providing "educational materials and disseminating information urg-ing the adoption by the people of a proposed amendment to the Massa-chusetts Constitution relating to the classification of property for pur-pose of taxation." 3 An appropriation of $975,000 was made coincident with the adoption of the ordinance.4 Additional monies were
trans-ferred from city accounts to outside contracts and to the Massachusetts Mayors Association for purposes of support of the campaign.5 There-after, eleven taxpayers brought suit for declaratory and equitable relief.6 A hearing was held before a single justice of the Supreme Judicial Court on the question of the issuance of the preliminary injunction.7 The justice reserved and reported the case for a determination by the f}lll court. 8
After hearing argument, the Supreme JudiCial Court entered an order enjoining the city from expending any of the funds appropriated and
" JOHN W. DELANEY is Vice-President for Governmental Affairs, First Na-tional Bank of Boston, Boston, Mass.
§8.1. 1 1978 Mass. Adv. Sh. 2297, 380 N.E.2d 628. 2 MASS. CONST. amend. CXII.
3 1978 Mass. Adv. Sh. at 2298-99, 380 N.E.2d at 631. 4 Id. at 2299, 380 N.E.2d at 631.
5 Id. at 2300-01, 380 N.E.2d at 632.
6 Id.at 2297, 380 N.E.2d at 631. 7 Id. at 2298, 380 N.E.2d at 631.
8 Id.
§8.1 STATE AND LOCAL GOVERNMENT
257
from making payments on the outside contracts.n The Court based its order on its conclusions that (1) the city did not have the authority to appropriate funds 'under state law, and (2) the first amendment to the United States Constitution did not require that the city be author-ized to appropriate funds to influence the result of the vote on the classification amendment.10
The Court first considered whether state law authorized the city's appropriation of funds.l l In concluding that state law did not authorize the expenditure, the Court at the outset rejected the plaintiffs' argument that the purposes for which public funds could be expended are limited to those enumerated in chapter 40, section 5.12 The Court pOinted out that other statutory provisions explicitly authorize the appropriation of funds.13 Moreover, the Court noted, municipalities have historically appropriated funds for some functions without any specific statutory authOrity beyond that contained in the general authorization to expend funds "for the exercise of any of [their] corporate powers." 14 The Court thus refused to find that chapter 40, section 5, of its own force serves to curtail the spending power of local governments.
Having rejected the argument based upon chapter 40, the Court, nevertheless, observed that the Home Rule Amendment 15 limits the exercise of the powers of municipalities to purposes which are "not in-consistent with the constitution or laws enacted by the general court in conformity with powers reserved to the general court . . . ." 16 The Court then found that allowing a city to spend funds to influence an election was inconsistent with the comprehensive scheme for the regula-tion of elecregula-tions adopted by the General Court in chapter 55 of the General Laws.17 That chapter, the Court determined, was intended to reach all political fund raising and expenditure within the common-wealth.18 In the Court's view, the absence of any reference to municipal corporations in that statute was not an indication ,that municipal action to influence election results was intended to be exempt from regulation, but rather was an indication that the legislature did not even contem-plate that such municipal action could occur.!!) Taking judicial notice
9 rd. at 2301, 380 N.E.2d at 632. 10 rd. at 2302, 380 N.E.2d at 632.
11 rd. at 2302-09, 380 N.E.2d at 632-35. 12 rd. at 2303, 380 N.E.2d at 632-33.
13 rd. See, e.g., C.L. c. 40, §§ 5A, 5B, & 6A.
14 1978 Mass. Adv. Sh. at 2303, 380 N.E.2d at 633. 15 MASS. CONST. amend. LXXXIX.
16 1978 Mass. Adv. Sh. at 2303, 380 N.E.2d at 633.
17 rd. at 2305, 380 N.E.2d at 633. 18 rd. at 191, 385 N.E.2d at 506.
19 rd.
258 1979 ANNUAL SURVEY OF MASSACHUSETTS LAW §8.1
of the circumstance that municipalities traditionally have not appropri-ated funds to influence election results, the Court concluded that had the legislature expected municipalities to engage in such activities or intended that they could, chapter 55 would have regulated those ac-tivities as well.20
Having thus concluded that state law did not authorize the city's appropriation action, the Court turned to the assertion that, despite the state law bar, the city had a first amendment right to spend public funds to influence the result of the impending referendum.21 In deter-mining that the first amendment did not shield the city's action, the Court expressly declined to address the issue of whether a municipality "has" first amendment rights and what the scope of those rights 'might be.22 Instead, the Court charaoterized the question before it as one of whether the state's denial of the city's right to expend funds to influence the referendum abridged constitutionally protected speech.23 Assuming for the purpose of analysiS that the city's right to make such speech was protected by the first amendment, the Court concluded, nonetheless, that the state's interest in ensuring the fairness of elections and the appearance of fairness in the electoral process was substantial and com-pelling.24 The state was justified, therefore, in excluding political sub-divisions from partisan participation in elections.25
The Court pointed to a number of factors as supporting its finding that the state's interest in elections was compelling. First, the Court noted that the state's strong interest is expressed in the Massachusetts Constitution itself.26 Article 9 of the Declaration of Rights provides that "[a]ll eleotions ought to be free." 27 Article 48 of the amendments to the Constitution directs the secretary of state to send every registered voter the full text of every referendum or initiative measure together with a copy of majority and minority reports, as well as a fair and concise summary of the proposal,28 Moreover, the Home Rule
Amend-20 Id.
21 Id. at 2309, 380 N.E.2d at 635. 22 Id. at 2311, 380 N.E.2d at 636.
23 Id. at 6311-12, 380 N.E.2d at 636-37. In thus phrasing the question, the Court cited First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765 (1978), where the United States Supreme Court struck down a proviSion of chapter 55 which had prohibited the expenditure of corporate funds to influence votes on referendum questions not "materially affecting any of the property, business or assets of the corporation."
Id. at 784. For an analysis of this case, see Ortwein, Constitutional Law, 1977 ANN. SURV. MASS. LAW, § 10.3, at 196-99.
24 1978 Mass. Adv. Sh. at 2314~20, 380 N.E.2d at 637-38. 25 Id. at 2315, 380 N.E.2d at 638.
~ Id.
27 MASS. CONST. pt. 1, art. 9.
28 Id. amend. XLVII.
§8.1 STATE AND LOCAL GOVERNMENT
259
ment by its terms denies any intention to grant to municipalities power to regulate elections except as expressly provided.29 Second, the Court stated that fairness and the appearance of fairness are assured by a prohibition against using public tax revenues to advocate a position which certain taxpayers oppose.ao Similarly, taxpayers should not be
compelled to finance the expression of a view on an election issue with which they disagree.31 In this regard, the Court emphasized that tax-payers cannot avoid paying the additional taxes that these expenditures would generate.32 Finally, the Comt noted that the existence of ob-jeoting taxpayers was not hypothetical; actual taxpayers had identified themselves by becoming plaintiffs to the suit. 33 Hence, the Court ruled that municipal funds could not be used in support of the referendum question.
Having determined that public funds could not be spent, the Court turned to the problem of fashioning an appropriate remedy. The Court had issued an order on July 19, 1978, enjoining the city from using any funds specifically appropriated to influence the vote on classification or any other appropriated funds, including the services of employees paid from funds appropriated for other purposes. 34 The opinion, issued on August 23, 1978, affirmed that order but declined to extend it to include the use of any other muniCipal funds, noting, "We anticipate that the city will adhere to the requirements of law which are stated in this opinion." 35 Because the plaintiffs had made no claim to recover funds already spent and because some of the parties to the spending (e.g.,
the Massachusetts Mayors Association) were not parties to the suit, the Court expressly refused to rule on the rights and responsibilities of the parties and non-parties with respect to these funds.36 The Court then moved from the issue of the use of funds to the use of municipal em-ployees during working hours.37 Stating that it had no specific evidence before it concerning the activities of municipal employees, the Court declined to issue any specific declarations or injunctions on the limits of such conduct.38 Finally, the Court observed that the use of mu-nicipal facilities, equipment, and other resources in support of the referendum was clearly improper, "at least unless each side were given
29 1978 Mass. Adv. Sh. at 2315, 380 N.E.2d at 638.
30 ld. at 2318, 380 N.E.2d at 639.
31 ld. at 2318-19, 380 N.E.2d at 639.
32 ld. at 2319, 380 N.E.2d at 639-40.
33 ld.at 2319, 380 N.E.2d at 640. 34 ld. at 2321, 380 N.E.2d at 640.
35 ld. at 2321, 380 N.E.2d at 640-4l. 36 ld. at 2322, 380 N.E.2d at 64l.
37 ld.
38 ld.
260 1979 ANNUAL SURVEY OF MASSACHUSETI'S LAW §8.2
[sic] equal representation and access." 39 Because the record showed no specific examples of such one-sided use of public facilities and resources, the Court limited itself to the precatory statement that "we expect the city will recognize the limitations on its authority and will conform to them." 40
Despite the order and opinion of the Supreme Judicial Court, the city was able to expend considerable dollars and thousands of hours of employee time in support of the classification question. On October 20, 1978, Justice Brennan stayed the order of the Supreme Judicial Court pending review of an appeal by the full United States Supreme Court on November 6, 1978,41 The United States Supreme Court denied plain-tiff's motion to vacate the stay.42 The decision of the Supreme Judicial Court was ultimately reinstated by the United States Supreme Court by the dismissal of the case for want of a substantial federal question.43 The Supreme Court's dismissal, however, came after the November
7,
1978, election. Thus, during the period when the stay was in effect, municipal funds were spent and muniCipal employees' time was utilized on the referendum question. It does seems clear, however, that in the absence of express permission from the state legislature, in the future, cities and towns may not spend public funds of any kind to influence the results of a referendum campaign.44
§8.2. Powers of Local Governments-Home Rule Amendment. The Home Rule Amendment provides that the legislature may not act in relation to a single city unless it does so by a special law "enacted on petition filed or approved by the mayor and city oouncil" of that city.1 What action by a local government is necessary to constitute a petition so filed or approved was the issue raised in Newell v. Rent Board
of
Peabody. 2 In a second home rule decision, the Supreme Judicial Court in Beard v. Town
of
Salisbury 3 considered the ement to which amu-nicipality could regulate the removal of soil and gravel from private land within the municipality.
39 ld. at 2323, 380 N.E.2d at 641.
40 ld. at 2324, 380 N.E.2d at 641.
41 439 U.S. 389 (1978).
42 439 U.S. 951 (1978).
43 439 U.S. 1060 (1979). See Note, The Constitutionality of Municipal Advocacy in Statewide Referendum Campaigm, 93 HARv. L. REV. 535 (1980).
§8.2. 1 MASS. CONST. amend. LXXXIX.
2 1979 Mass. Adv. Sh. 1713, 392 N.E.2d 837. 3 1979 Mass. Adv. Sh. 1703, 392 N.E.2d 830.
§8.2 STATE AND LOCAL GOVERNMENT
261
Neu;ell involved a challenge to a special act affecting the city of Peabody that regulated mobile home rents and evictions.4 On Ootober 23, 1975, the mayor and council of Peabody voted to request the city's representatives to draft and file legislation which would penllit the city to enact an ordinance to control rents and evictions with respect to mobile homes and housing in the city of Peabody.5 No legislation then existedY A state representative then filed a general bill relating to state-wide regulation of rent increases on all licensed mobile home parks in the commonwealth.7 This bill subsequently was converted into a special act applicable only to the city of Peabody, empowering the city to regulate by ordinance mobile home rents.S Thereafter, pursuant to the authority granted by the special act, the city adopted an ordinance regulating mobile home accommodations and evictions.9 The plaintiffs, owners of mobile home parks in Peabody,lo then brought suit alleging,
inter alia, that the city ordinance was unconstitutional because the special act was not properly enacted pursuant to the Home Rule Amendment.n The trial court judge rejected this contention.12
On appeal, the Supreme Judicial Court agreed with the lower court's conclusion that the special act had been properly enacted under the Home Rule Amendment.13 The Court noted that although section 8 of the Home Rule Amendment requires that a petition be "filed or ap-proved" by the mayor and city council of a city before the legislature may pass a special law with respect to that city, the amendment does not prescribe any particular form or procedure to be followed.14 In the Court's view, although the city had not "filed" a petition with the legislature, its vote of October 1975 constituted "approval" of a petition to the legislature for a speCial act. Hi The Court concluded that while the method used was "no model of how to present a home rule petition, the special act was properly adopted under seotion 8 of the Home Rule Amendment." 16
In an interesting footnote the Court: addressed the limits of the ap-parent malleability of the seotion 8 petition processY The special act
4 Id. at 1716, 392 N.E.2d at 838.
5 Id. at 1714, 392 N.E.2d at 838.
6 Id.
7 Id.
SId. at 1714, 1715, 392 N.E.2d at 838, 839.
9 Id. at 1715, 392 N.E.2d at 839. 10 Id. at 1713 n.l, 392 N.E.2d at 837 n.l. 11 [d. at 1713-14, 392 N.E.2d at 838. 12 Id. at 1714, 392 N.E.2d at 838.
13 Id. at 1716, 392 N.E.2d at 839. 14 Id.
15 [d. at 1716-17, 392 N.E.2d at 839. 16 Id. at 1716, 392 N.E.2d at 839.
17 [d. at 1717 n.6, 392 N.E.2d at 839 n.6.
- - -
---~---262 1979 ANNUAL SURVEY OF MASSACHUSETTS LAW §8.2
passed by the legislature contained a provision that the aot would become effective only upon acceptance by the City.lS The Court warned sum-marily that the inclusion of such a provision in special legislation would
not constitute by itself the local approval of the home rule petition re-quired by the Home Rule Amendment.1o The Court noted that such
subsequent approval comes too late in the process to be treated as approval of the home rule petition.20 Thus, the Court appears to be signaling its intent to require either local filing or approval of the peti-tion before enactment of the special legislapeti-tion in order for the provi-sions of the Home Rule Amendment to be met.
In Newell the Court also took the opportunity to counsel cities about the problems that they might create for themselves through use of a general approval rather than a specific proposal for legislation,21 The Court noted that use of a general approval may result in the municipal-ity's lOSing control over both the form and substance of the resulting
legislation.2~ The effect of such an occurrence is that a city could be saddled with any kind of special act and would be bound by it. Al-though the Court urged that this result could be avoided by the city's proposing specific legislation and by its indicating its willingness or unwillingness to accept variations therefrom,23 the decision makes clear that such general approval with its attendant effects will be counte-nanced.
In summary, the Court in Newell found that the city approved a peti-tion for a special act and that the legislature thereafter responded accordingly.24 That the bill as filed did not conform to the city's request
did not invalidate the special act, since local approval occurred and was communicated to the legislature before the special aot was passed.25 The bill as enacted conformed to the city's request. Moreover, that the city's approval was a general one-tantamount to a "blank check" to the legislature-does not affect the faot that the purpose of the Home Rule Amendment was fully served.26
In a second home rule decision during the Survey year, the Court declined to grant a local community power to regulate traffic outside its borders under the power to regulate the removal of sand, loam, or
18 ld.
19 ld.
20 ld.
21 ld. at 1717, 392 N.E.2d at 839. 221d.
23 ld.
24 ld. at 1716-17, 392 N.E.2d at 839. 25 ld.
26 ld. at 1718, 392 N.E.2d at 840.
-
-§8.2 STATE AND LOCAL GOVERNMENT
263
gravel. In Beard v. Town of Salisbury 27 the town had prohibited by by-law the removal of sand, loam, or gravel from land not in public use out of the oonfines of the town of Salisbury.28 Violation was punish-able by fines.29 The plaintiffs were a group consisting of an earth re-moval broker, owners of gravel pits located in the town of Salisbury, and several independent truckers, all of whom were involved in oon-tracts together.30 These individuals continued their intercity earth re-moval operations after passage of the Salisbury by-Iaw.31 Criminal complaints against the plaintiff-truckers were brought by the city, and subsequently it obtained a restraining order forbidding the plaintiffs from further violations.32 The plaintiffs then brought an aotion seeking declaratory relief.33 These actions were consolidated and at trial the judge ruled that the by-law was invalid.34
On appeal, the Supreme Judicial Court ruled that the by-law was an unreasonable, and therefore excessive, exercise of the power granted to municipalities under chapter 40 to develop earth removal ordinances or by-Iaws.35 The Court concluded that the enabling chapter 40, section 21 ( 17), which authorizes a prohibition or regulation of the removal of soil, loam, sand or gravel from private land in a town, could not be extended to prohibit the transportation of said materials outside the boundaries of the town.36
In addition, the Court found that the Home Rule Amendment, de-spite the broad powers that it confers on municipal governments, cannot be' oonstrued to permit local ordinances or by-laws that regulate areas outside a municipality's geographical limits.37 As additional support for its finding the Court observed that regulation of traffic is a power vested in the legislature.38 Therefore, to allow a town to assume on its own the power to regulate traffic would be inoonsistent with the present statutory scheme.3u The result is that a municipality can indeed regulate how much gravel can be removed from the land, but not where it goes once it is removed.
27 1979 Mass. Adv. Sh. 1703, 392 N.E.2d 830. 28 ld. at 1704, 392 N.E.2d at 833-34. 29 ld. at 1705, 392 N.E.2d at 834.
30 ld.
31 ld.
32 ld.
33 ld. at 1705-06, 392 N.E.2d at 834. 34 ld. at 1706, 392 N.E.2d at 834.
35 ld. at 1706, 392 N.E.2d at 834-35.
36 ld. at 1710-11, 392 N.E.2d at 836.
37 ld. at 1711, 392 N .E.2d at 836.
38 ld.
39 ld.
264 1979 ANNUAL SURVEY OF MASSACHUSETfS LAW §8.3
§8.3. Public Records-Tax Delinquents. During this Survey year the Supreme Judicial Court in Attorney General v. Collector of Lynn 1
considered whether records of tax delinquents are public records open to inspection.2 The Court held that such records are public records within the meaning of chapter 4, section 7, and, therefore, are not ex-empted from public disclosure.3
Individual members of Lynn Fair Share, an unincorporated associa-tion, requested from the collector of Lynn lists of owners of
Lynn
property who were delinquent in taxes.4 The collector refused the request on the basis that the records were not available to the public.5 Members of Fair Share requested a ruling from the supervisor of records,6 who concluded that the records were public and available for inspection. 7 The collector of Lynn refused to comply with the ruling. 8
Thereafter, the Attorney General instituted an action to enforce the ruling.n The judge ruled that the records were exempt under two ex-ceptions to the general rule of disclosure.1o The first exception applies
to any record specifically or by necessary implication exempted from disclosure by statute.l l The judge found ,that the records sought were exempted from the definition of public records by necessary implication of chapter 60, section 8.12 That section sets forth the circumstances and conditions under which the collector's records must be open to
§8.3. 1 1979 Mass. Adv. 5h. 191, 385 N.E.2d 505. 2 C.L. c. 4, § 7, defines public records to include
all books, papers, maps, photographs, recorded tapes, financial statements, statistical tabulations, or other documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or any political subdivision thereof ...
excluding only those items falling within expressly enumerated exceptions. C.L. c. 66, § 1O( a), requires every person having custody of any public records to permit them to be inspected and examined by any person without unreasonable delay. ld.
a 1979 Mass. Adv. 5h. at 200, 385 N.E.2 at 509.
4 ld. at 191-92, 385 N.E.2d at 506. 5 ld. at 192, 385 N.E.2d at 506.
6 Under C.L. c. 66, § 10( b), any person denied in his request to inspect or receive a copy of a public record by a cus,todian of public records may appeal to the supervisor of records for a determination whether the requested record is public. Upon an affirmative determination, the supervisor must order the custodian to comply with the request. If the custodian refuses or fails to comply, the supervisor may notify the Attorney Ceneral or the appropriate district attorney, who may then take appropriate measures to ensure compliance.
7 1979 Mass. Adv. 5h. at 192, 385 N.E.2d at 506. 8 ld.
9 ld.
10 ld.
11 C.L. c. 4, § 7, twenty-sixth (a).
12 1979 Mass. Adv. 5h. at 194, 385 N.E.2d at 507.
§8.3 STATE AND LOCAL GOVERNMENT
265
designated municipal officials.13 The judge reasoned that section 8 created an exclusive list of those who may inspect a collector's records, necessarily implying that the records were closed to all others,14 thereby triggering exemption by necessary implication.15 The second exception which the judge found applicable was that which exempts from public inspection those records, the disclosure of which would constitute an invasion of privacy.16 Thus, the trial judge upheld the collector of Lynn's refusal to make public a list of delinquent taxpayers,17
On appeal, the Supreme Judicial Court reversed. Finding that neither of the two exceptions were applicable, it ruled that the tax records were public records.IH With regard to the first exception, the Court disagreed that chapter 6, section 8, by necessary implication restriots the right to inspect tax records. III Instead, it viewed the right of officials to inspect under that section as complementary to the right of citizens to inspect under the open records law.20 The Court was unpersuaded by the observation that the inspection process for officials under chapter 60, section 8, is more expeditious than that for ordinary citizens under chapter 66, section 10. Rather, the Court viewed this distinction as consonant with the "strong public interest" in allowing these public officials ready and full knowledge of town financial records.21
Turning to the lower court's seoond finding that the records were excluded from disclosure as an invasion of privacy, the Supreme Judicial
13 C.L. c. 60, § 8, provides:
All books kept by the collector, which shall be approved as to form by the commissioner, shall be furnished by, and be the property of, the town, and shall be at all reasonable times open to examination by the auditor of such town or any other agent thereof duly authorized therefor. The collector shall, on demand by the mayor, aldermen or selectmen, exhibit to them or to any persons whom they designate, at any time during ordinary business hours, the books, accounts and vouchers relating to taxes committed to him for collection and to his receipts and payments on account of taxes; and they, or the persons designated by them, shall have full opportunity to examine said books, accounts and vouchers, and to make copies and extracts therefrom.
14 1979 Mass. Adv. Sh. at 194-95, 385 N.E.2d at 507.
15 ld. at 194, 385 N.E.2d at 507.
16 ld. See C.L. c. 4, § 7, twenty-sixth (c).
17 1979 Mass. Adv. Sh. at 192, 385 N.E.2d at 506. 18 ld. at 191, 385 N.E.2d at 506.
19 ld. at 195, 385 N.E.2d at 507.
20 ld.
21 ld. at 196, 385 N.E.2d at 508. See note 13 supra. Compare C.L. c. 66,
§ 10(a) which prOVides in part:
Every person having custody of any public record, as defined in clause Twenty-sixth of section seven of chapter four, shall, at reasonable times and without unreasonable delay, permit it, or any segregable portion of a record which is an independent public record, to be inspected and examined by any person, under his supervision, and shall furnish one copy thereof upon payment of a reasonable fee.
266 1979 ANNUAL SURVEY OF MASSACHUSETTS LAW §8.4
Court again disagreed. 22 While the Court conceded the need to balance invasions of privacy against the public's right to know,23 it found that in this instance disclosure could not be said to publicize "intimate de- . tails" of a "highly personal" nature.24 In support of this conclusion, the Court noted that it had previously held that names and salaries of police officers were not private and had ordered their disclosure.25 Tax delin-quency records, the Court reasoned, do not disclose private information such as a person's income or financial relationship with other private persons; rather "[t]hey disclose only whether an owner is meeting his public responsibilities," that is, paying his taxes.26 Finally, the Comt asserted that the public has an interest in knowing whether public servants are carrying out their duties in an efficient manner.27 Disclosure assists in determining the diligence of public officials. Thus, the Court concluded that the public interest in the information outweighed any invasion of privacy which disclosure occasioned.28
§8.4. Conflict of Interest-Statute of Limitations. During this Survey year, in Town of Nantucket v. Beinecke,l the Supreme Judicial Court
established that the conflict of interest law, chapter 268A, does contain a statute of limitations.2 In Beinecke, the Court also considered what
constitutes notice to a municipality that a wrong has been committed by one of its officials. 3 In 1964, the town treasurer of Nantucket as-Signed title to a parcel of land to one Gardner for $15.4 In 1967, Gardner conveyed title to Sanguinetti for $100, who then conveyed title to Beinecke for $16,500.5 During these transactions Gardner was a tax assessor of the town, and Sanguinetti was town counsel and town moderator.6 In 1978, the town sued in land court to avoid the trans-action based on violations of the conflict of interest law.7 The land court judge ruled that the action was barred by the statute of limita-tions.8
22 1979 Mass. Adv. Sh. at 197, 385 N.E.2d at 509. 23 Id. at 197, 385 N.E.2d at 508.
24 Id. at 198, 385 N.E.2d at 508.
25 Id. at 198, 385 N.E.2d at 509. See Hastings & Sons Pub. Co. v. City Treasurer of Lynn, 1978 Mass. Adv. Sh. 920, 375 N.E.2d 299.
26 1979 Mass. Adv. Sh. at 198-99, 385 N.E.2d at 509. 27 Id. at 199, 385 N.E.2d at 509.
28 Id. at 200, 385 N.E.2d at 509.
§8.4. 1 1979 Mass. Adv. Sh. 2623, 398 N.E.2d 458.
2 Id. at 2625, 398 N.E.2d at 459. 3 Id. at 2627-28, 398 N.E.2d at 461.
4 Id. at 2623, 398 N .E.2d at 459-60.
5 Id. at 2623-24, 398 N.E.2d at 459.
6 Id. at 2624, 398 N.E.2d at 459.
7 Id. SId.
§8.4 STATE AND LOCAL GOVERNMENT 267 On appeal the Supreme Judicial Court rejected the town's contention that since chapter 268A made no mention of a statute of limitations, none was to be inferred.9 In response the Court stated: "On other occasions, when faced with similar claims . . . this court has looked to the essential nature of the right to determine which statute of limitations should be applied." 10 Moreover, the Court noted, it found nothing in the legislative history of chapter 268A to suggest that the legislature, by not specifically prescribing a statute of limitations, intended that actions not be time-limited.11 Rather, the Court concluded that had such a result been intended, it would have been natural for the leg-islature to have expressed such an intention.12 The Court next con-sidered which statute of limitations should govern.13 Looking to the "gist of the action," the Court determined that the essential claim was an action in tort,14 It observed that this determination accorded with early Massachusetts case law where suits involving violations of official duty were so viewed.I5 Thus, the Court applied the two-year tort statute of limitations that was in effect prior to 1974.16
Having concluded that the tort statute of limitations applied, the qourt turned to the more difficult question of deciding when the town <1ould be considered to be on notice 9f the violation.17 The Court agreed with the trial judge that the "statute commences to run when the plain~
tiff knew or should have known of the wrong." 18 The Court noted, however, that proper application of this principle in a conflict of interest case requires the determination of what person or peTsons in the town must have knowledge of the wrong in order for the town to be deemed to be on notice.19 The Court readily agreed ,that knowledge by the "culprits" themselves should not be binding on the town.20 The gen-eral test set forth by the Court is that "only when those disinterested persons who are capable of acting on behalf of the town knew or should have known of the wrong, should the town be charged with such knowledge." 21
9 ld. at 2525, 398 N.E.2d at 459.
10 ld. at 2626, 398 N.E.2d at 459-60. 11 ld. at 2626, 398 N.E.2d at 460.
121d.
13 ld.
14 ld.
15 ld.
16 ld. at 2627, 398 N.E.2d at 461. Acts of 1973, c. 777, § 1, increased the limitation period from two to three years for actions arising after January 1, 1974.
17 1979 Mass. Adv. Sh. at 2627, 398 N.E.2d at 461.
18 ld.
19 ld. at 2627-28, 398 N.E.2d at 461.
20 ld. at 2628, 398 N .E.2d at 461. 21 ld.
268 1979 ANNUAL SURVEY OF MASSACHUSETIS LAW §8.5
In determining when the town had acquired such knowledge, the judge below had suggested that the town had notice in 1975, when the town newspaper published certain dicta from a Nantucket probate court decision, which presumably thereby came to the attention of the board of selectmen of Nantucket.22 The lower court had taken judicial notice of the geographical size of the town, its sparse population in the month of publication, and ,the presence of a weekly newspaper, all of which the Court found was proper.23 The judge, however, had also taken judicial notice of the newspaper's usual practice of covering fully pending litigation, of the probable presence in the newspaper of an article which mentioned Sanguinetti's conflict of interest, and of the board of selectmen's awareness of the article.24 The Court concluded that these observations of the land court judge were personal observa-tions.25 As such, they were not the proper objects of judicial notice.26 Hence, the Court ruled that the judge's finding concerning the towns notice of the violation was affected by an error of law and could not stand.27 The case, therefore, was remanded for further proceedings to determine when the town had received notice and what further evidence should be allowed in making that determination.28
§8.5. Administrative Law-Review of State Agency Decisions. In two significant cases 1 decided during the Survey year involving judiCial review of state administrative agency decisions, the Supreme Judicial Court has continued its recent trend of upholding procedurally correct regulations and rate-making decisions against claims that they were improper. In Greenleaf Finance Co. v. Small Loans Regulatory Board,2 the Small Loans Regulatory Board, which under chapter 140, section 100, has broad authority to set maximum rates for small loans, exercised its statutory authority and issued a new rate order after holding extensive hearings.4 The plaintiffs, twenty-two small loan companies, then sought a declaratory judgment that the order violated the regulatory statute in its failure to assess the faotors that should enter into the rate; they
22 [d. at 2629, 398 N.E.2d at 462.
23 [d.
24 [d. at 2630, 398 N.E.2d at 462. 25 [d.
26 Id.
27 [d. 28 Id.
§8.5. 1 Grocery Mfrs. of America, Inc. v. Department of Public Health, 1979
Mass. Adv. Sh. 2291, 393 N.E.2d 1364; Greenleaf Finance Co. v. Small Loans Regulatory Bd., 1979 Mass. Adv. Sh. 356, 385 N.E.2d 1364.
2 1979 Mass. Adv. Sh. 356, 385 N.E.2d 1364. 3 Id. at 357, 385 N.E.2d at 1366.
4 Id. at 357, 385 N.E.2d at 1367.
§8.5 STATE AlXD LOCAL GOVERNMENT 269
also claimed that the rate was confiscatory. ~ At trial the parties stipu-lated that for the purposes of the case, the board proceeding would be treated as rule-making rather than as adjudication.6 The lower court judge held for the board.7
On appeal, the Supreme Judicial Court affirmed. After reviewing the evidence and decision at some length,s the Court pointed out that be-cause the parties had stipulated that the rate order was to be treated as a "rule," or type of "regulation," rather than as an adjudicatory deci-sion, the plaintiffs had to show not simply that the order was unsup-ported by substantial evidence but rather that the rate order has 'crossed 'the line of arbitrariness' or was 'capricious.''' D The lesser standard of review, the Court stated, applies only to adjudicatory decisions.1o More-over, the Court noted, the plaintiffs faced not only a "formidable burden" of proof but also a judicial attitude in which the "approach of a court to an agency regulation is as deferential as that to a legislative enact-ment." 11 Not surprisingly, given this legal framework and the attention to fact and law paid by the board in establishing the new rate,12 the Supreme Judicial Court upheld the board's determination.13
In Grocery Manufacturers of America, Inc. v. Department of Public
Health,H a second case concerning judicial review of administrative agency action, a challenge was made to the validity of regulations promulgated by the Department of Public Health on food labeling,lfi The regulations in question required sellers of certain non-perishable food products to disclose on the package either a date after which the product should not be used (the "last date of use") or a date after which the product's quality might not be as high as originally repre-sented (the "pull date") .16 The challenge to the regulations was re-jected by the Court 17 in an opinion of interest principally for its dis-cussion of the department's authority to issue such regulations.
The plaintiffs argued that the department lacked statutory authority to adopt any regulations requiring open date labeling, because its sole
5 ld.
6 ld.
7 ld. at 359-73, 385 N.E.2d at 1367-71. 8 ld. at 368, 385 N.E.2d at 1371.
9 ld.
10 ld.
11 See id. at 359-73, 385 N.E.2d at 1367-71.
12 ld. at 379, 385 N.E.2d at 1376.
13 1979 Mass. Adv. Sh. 2291, 393 N.E.2d 881.
14 ld. at 2291, 393 N.E.2d at 884. 15 ld. at 2292, 393 N.E.2d at 885.
16 ld. at 2293, 393 N.E.2d at 885.
17 ld. at 2295, 393 N.E.2d at 886.
- - - -- - - --
---270 1979 ANNUAL SURVEY OF MASSACHUSETTS LAW §8.5
authority to issue such regulations derived from chapter 94, section 187,
which defines the term "misbranded." 18 That term, the plaintiffs claimed, could not be read to authorize a regulation requiring disclosure of the pull date or the last date of use of non-perishable food. 19 They asserted that misbranding speaks only to active misrepresentations.2o In support of this view, the plaintiffs pointed out that the legislature had enacted affirmative and specific disclosure requirements in certain situations where it had determined that active representations must be made.21 Open date labeling, they maintained, was not one of those situations.22
Rejecting the view that the regulations were without authority, the Court responded that an agency's powers are shaped by the statute taken as a whole and include those necessarily or reasonably implied.23 Thus, regulations can be authorized even where there is no specific statutory authority.2~ Moreover, an agency has considerable leeway in interpreting a statute it is charged with enforcing.25 Although the Court conceded that the authority granted to the Department of Public Health was not so broad as that granted to some other agencies,26 nonetheless the Court concluded that the authority to regulate the sale of misbranded food, defined by statute as food with a label "misleading in any particu-lar," 27 included the power to regulate an omission of fact as well as an express misstatement of faot. 28 The Court reasoned that an item's availability for sale is an implied representation that the food is fit for consumption ("last date of use") or that it is of the quality which the manufacturer represents it to be ("pull date").29 So viewed, "mis-branding" under the statute plainly comprehended omissions.3o Finally,
18 ld.
ID ld.
20 ld. at 2295-96, 393 N.E.2d at 886. 21 ld.
22 ld. at 2296, 393 N .E.2d at 886.
23 ld. See Levy v. Board of Registration & Discipline in Medicine, 1979 Mass. Anv. Sh. 1857, 392 N.E.2d 1036. The Court affirmed the Board's revocation of a physician's license for the commission of crimes relating to the misuse of state funds in the operation of nursing homes. Even though the crimes were not directly related to the practice of medicine, the Court found that the Board's general powers to adopt rules and regulations governing medicine in order to promote the public health, welfare and safety was a delegation by the legislature of a broad enough grant of authority to impose the revocation of the license.
24 1979 Mass. Adv. Sh. at 2296, 393 N.E.2d at 886.
25 ld. at 2297,393 N.E.2d at 886-87. Among others, the Court cited the authority
granted to the Community Antenna Television Commission, the State Racing Com-mission, and the Alcoholic Beverages Control Commission. ld.
26 C.L. c. 94, § 187.
27 1979 Mass. Adv. Sh. at 2296, 393 N.E.2d at 887.
281d. 29 ld.
30 ld.
- -
---~---§8.6 STATE AND LOCAL GOVERNMENT 271
the Court rejected the argument that department's authority to promul-gate detailed regulations was limited to those subjects specifically enu-merated by statute.31 The Court responded that the various sections of chapter 94 that grant the department authority to prescribe regulations in great detail on particular subjects do not limit thereby the depart-ment'sauthority to deal with other matters under more general statutory guidelines.32
Both of these cases illustrate the difficulties faced by future plaintiffs who challenge regulations and decisions of state administrative agencies. As the Court in Greenleaf noted, "The plaintiffs must shoulder a form-idable burden in attempting to overcome" an agency's ruling.33 It appears, then, that agency decisions and regulations will be allowed to stand unless they are found to be arbitrary or capricious.
§8.6. Administrative Law-State Administrative Agencies-Health Care. State government has entered into the field of health care regula-in recent years regula-in two significant respects, both of which were addressed during the Survey year. Lahey Clinic Foundation, Inc. v. Health Fa-cilities Appeals Board,! considered the board's powers to review
exten-sions of determinations of need given by the Department of Public Health. Cliff House Nursing Home, Inc. v. Rate Setting Commission,2 considered the power of the Division of Hearing Officers to determine questions of law when Rate Setting Commission decisions setting rates for proViders are appealed to that division.
The issue before the Court in Lahey was whether a 1976 e"'ltension by the Department of Public Health of an original 1972 grant of a determination of need (DoN) to build a hospital-clinic was in substance the grant of a new DoN, subject to review by the Health Facilities Ap-peals Board (board). 3 In 1972 the Department of Public Health (de-partment) granted a DoN to the Lahey Clinic Foundation, Inc. (Lahey) for a 200-bed hospital-clinic in Burlington.4 In 1976 the department issued an "extension determination of need" approving increases in gross square footage and cost.5 A taxpayer group then appealed to the board the department's grant of the "extension." 6 The board is empowered
31 Id.
32 1979 Mass. Adv. Sh. at 368, 385 N.E.2d at 1371. §8.6. 1 1978 Mass. Adv. Sh. 2523, 380 N.E.2d 675. 2 1979 Mass. Adv. Sh. 1395, 390 N.E.2d 723. 3 1978 Mass. Adv. Sh. at 2523-24, 380 N.E.2d at 678. 4 Id. at 2523, 380 N.E.2d at 677.
5 Id. at 2523, 380 N .E.2d at 677-78.
6 Id. at 2524, 2531, 380 N.E.2d at 677, 681. The appeal was pursuant to C.L.
c. 111, § 25E. Id. at 2524, 380 N.E.2d at 678. The taxpayer group was a proper appellant, and the appeal was timely. Id. at 2531, 380 N.E.2d at 681.
- - - -
- - - ---272 1979 ANNUAL SURVEY OF MASSACHUSETTS LAW §8.6
by statute to review the department's decision on an application for a DoN.; Lahey and the department moved to dismiss the appeal,8 The board denied the motions, mling that the "extension" was a DoN for the purposes of its appellate jurisdiction.n It mled further that, by virtue of the board's appeal procedures, the appeal could continue, despite the original appellant's withdrawal, if within a designated time at least one of the members of the class entitled to prosecute the appeal notified the board of its intent to do SO.10
Lahey and the department then brought suit for declaratory and injunctive relief.ll A taxpayer group, the Concerned Committee for Hospital Cost Control and the hoard cross-claimed.12 On the action by Lahey, the judge ordered the proceedings before the board to be dismissed. He ruled that the hoard lacked subject matter jurisdiction and that no appeal was pending before the board after the original appellant withdrew its appeal,l3 After trial on the cross-claim, the judge ruled that the "extension" was not in substance a grant of a new DoN and, therefore, was not subject to board review.H
On appeal, the Supreme Judicial Court held that the judge had erred in dismissing the proceedings before the board.15 The Court noted that by express statutory provision judicial review of board decisions was to be had only in the case of a "final decision . . . denying the appeal." 1 II A decision denying a motion to dismiss the appeal, the
Court pointed out, is in no sense "final," nor is it a decision "denying the appeal." I i The Court also assmied that use of a writ of prohibition would have been incorrect in the instant case.18 These writs are ap-propriately used to prevent a quasi-judicial body from exercising a jurisdiction which it does not possess or to determine whether jurisdiC-tion in faot exists only when the lack of jurisdicjurisdiC-tion appears clear from
; ld. at 2530, 380 N.E.2d at 681. See C.L. c. 111, § 25E, which provides in part:
Any person or agency filing an application for determination of need or empowered' to request a public hearing under the provisions of section twenty-five C, and aggrieved by the determination thereof may, within fourteen days after such determination, file an appeal to the health facilities board . . . .
8 1978 Mass. Adv. Sh. at 2524, 380 N.E.2d at 678.
9 ld.
10 ld. at 2523-33, 380 N.E.2d at 681. 11 ld. at 2524, 380 N.E.2d at 678. 12 ld. at 2525, 380 N.E.2d at 678. 13 ld. at 2524-25, 380 N.E.2d at 678. 14 ld. at 2523, 380 N.E.2d at 678. 15 ld. at 2534-35, 380 N.E.2d at 682.
16 ld. at 2533, 380 N.E.2d at 681. See C.L. c. Ill, § 25E.
17 1978 Mass. Adv. Sh. at 2533-34, 380 N.E.2d at 682. 18 ld. at 2534, .380 N.E.2d at 682.
§8.6 STATE Al'>D LOCAL GOVERNMENT
273
agreed faetsY' In this case, however, there was no agreement on factual conclusions.20 Moreover, the Court cautioned, nothing in those cases which have upheld the use of the writ of prohibition suggests that a court should intervene with respect to interlocutory procedural ques-tions such as were involved here, e.g., who is a party to an administra-tive appeal, when the withdrawal of an appeal takes effect, or whether a late petition to intervene should be entertained by the board.21 The Court concluded that, although the superior court has jurisdiction over final decisions of the board, this was not one. Therefore, it was prema-ture for the superior court to take judicial action.22
Having defended the right of the administrative agency to make its final decision, the Supreme Judicial Court then turned to the lower court's ruling on the counterclaim.2:1 This counterclaim, the Court held, should have been dismissed because of failure to exhaust administrative remedies.24 Despite this conclusion, the Supreme Judicial Court pro-ceeded to decide the merits of the issue-whether the "extension" was in substance a grant of a new DoN.25 Before reaching its decision that the "extension" was not in effect a new DoN,2G the Court carefully ex-plained its reasons for reaching the merits.27
First, the Court seemed most concerned about the effects of further delay on the project. 28 Second, the Court noted that the issue had been fully tried in the lower court where the board was a party and that retrial before the board would be of doubtful utility since the board had participated in the trial as an adversary party.29 Moreover, retrial would be wasteful and would cause further delay and increased costs "contrary to an important objective of the governing statute." 30 The Court also emphasized the importance of the question of the scope of the board's power to review changes in a project, noting that the resolu-· tion of this question would affect more persons than the parties to the case.31 Finally, the Court reasoned that the matter was primarily one of statutory interpretation, not dependent on the facts of the particular
19 ld.
20ld.
21 ld.
22 ld. at 2535, 380 N.E.2d at 682. 23 Id. at 2536, 380 N .E.2d at 682.
24 ld. at 2536, 380 N .E.2d at 683.
25 ld. at 2537, 380 N.E.2d at 683. 26 ld. at 2542, 380 N.E.2cl at 685.
27 ld. at 2537, 380 N.E.2d at 683.
28 ld. The project originally planned for 1972 at a cost of $43.1 million had
risen by 1976 to $81.1 million. ld. at 2538, 380 N.E.2d at 678.
29 ld. at 2537, 380 N.E.2d at 683.
30 ld. 31 ld.
274 1979 ANNUAL SURVEY OF MASSACHUSETTS LAW §8.6
case.32 Thus, the Court concluded that the merits of the case should be reached.
Utilizing the board's statutory standard of review-whether the deter-mination appealed from was an abuse of discretion, without observance of procedure required by law, or in violation of applicable provisions of law;{;{-the Court addressed the three major changes which were alleged to have converted the request for an extension of the original DoN into a new DoN.34 These were increased cost, increased square footage, and changes in planned services.35 vVith respect to cost, the Court found that although the cost had risen dramatically, the increase resulted mainly from inflation, refinement of estimates, and financing costS.30 Therefore, interpreting the application for an extension as a new DoN based on increased cost was "entirely inappropriate." 37 Although gross square footage had increased from 400,000 to 674,000, the Court agreed with the lower court's finding that the real test should be in terms of "net square footage"-that needed for functional requirements.38 The Court pOinted out that so viewed the later plans called for virtually the same net square footage as originally projected and approved. 3D In addition, increases in gross square footage had been approved by the department as the design developed.40 Finally, the Court dismissed the changes in planned services as "trifling in relation to the entire project." 41 The Court concluded that the 1976 "extension" was not in substance a new DoN and 'that the trial court's decision was not an abuse of discretion, was not made without observance of procedure required by law, and was not in violation of applicable provisions of law.42 A contrary decision by the board would therefore have been erroneous, the Court noted. It observed further that if the appeal to the board had not been frustrated by an injunction, it should have been denied on the ground that there was no new DoN.43 Justice Quirico dissented from that pONion of the Court's ruling which decided the case on the merits. He found the result inconsistent with Court rulings emphasizing the importance of maintaining the integrity of the
adminis-32 ld.
33 ld. at 2538, 380 N.E.2d at 683 (citing C.L. c. 11, § 25E).
34 1978 Mass. Adv. at 2538, 380 N.E.2d at 683.
35 ld.
36 ld. at 2540, 380 N.E.2d at 684. See note 28 supra. 37 ld.
38 ld. at 2541, 380 N.E.2d at 684. 39 ld. at 2541, .380 N.E.2d at 685.
40ld.
41 ld. at 2542, 380 N.E.2d at 685.
421d.
43 ld.
§8.6 STATE AND LOCAL GOVERNMENT
275
trative process. He urged the parties be required to exhaust adminis-trative remedies before seeking review in the courts.44
Both opinions noted the excessive costs of delay. There seems little question that the economic viability of the project and its enormous increased cost led the majority to decide the issue rather than return
it to the board. The board had made no decision in the case other than to deny a motion to dismiss the case on March 14, 1977. It may in fact have reached a decision favorable to Lahey within another month. Ironically, the Supreme Judicial Court opinion was not issued until Sep-tember 18, 1978, seventeen months of inflated oosts later.
In Cliff House Nursing Home, Inc. v. Rate Setting Commission,45 the Supreme Judicial Court oonfirmed that the Division of Hearing Offioers (the division) and not the Rate Setting Commission (the commission) is the controlling administrative agency when the two disagree concern-ing a rate of reimbursement.46 The Rate Setting Commission is charged with estab)ishing rates of reimbursement for providers of health care services.47 Persons aggrieved by a rate established by the commission may, however, appeal to the Division of Hearing Officers.48 The action commenced when Cliff House NurSing Home, Inc., appealed to the division the commission's decision on Cliff House's rate of reimburse-ment.49 The division on appeal determined a higher rate. 50 When the impasse between the two agencies led to no final agency determination of a rate of reimbursement, Cliff House brought a petition for review in the superior court. 51 The judge ruled that the division was the final authority on the rate of reimbursement to a health care provider when a decision of the commission had been appealed to it.52
On appeal, the Supreme Judicial Court affirmed. 53 It agreed that prior to the 1973 act 54 establishing the division, hearing officers played a role subordinate to the agencies to which they were attached.55 The Court asserted that the creation of the division, however, changed the role of the hearing officers within it. 56 On appeals from the
commis-44 ld. at 2545, 380 N.E.2d at 686.
45 1979 Mass. Adv. Sh. 1395, 390 N.E.2d 723. 46 ld. at 1395-96, 390 N.E.2d at 724.
47 ld. at 1396, 390 N.E.2d at 724. See C.L. c. 6A, § 32.
48 1979 Mass. Adv. Sh. at 1399, 390 N.E.2d at 725. See C.L. c. 6A, § 36.
49 1979 Mass. Adv. Sh. at 1396, 390 N.E.2d at 724.
50 ld.
51 ld. at 1396 n.2, 390 N.E.2d at 724 n.2.
52 ld. at 1395-96, 390 N.E.2d at 724.
53 ld. at 1396, 390 N.E.2d at 724. M Acts of 1973, c. 1229.
55 1979 Mass. Adv. Sh. at 1403, 390 N.E.2d at 726-27. 56 ld. at 1403, 390 N.E.2d at 725.
276 1979 ANNUAL SURVEY OF MASSACHUSETIS LAW §8.6
sion's rate detennination, for example, the division is charged by statute to determine an adequate, fair, and reasonable rate. 57 The Court noted that the division must file its decision with the Secretary of State and that the decision must contain "a statement of reasons . . . including a determination of each issue of fact or law on which the decision was based." 58 The Court found it significant that the division was given explicit authority to decide questions of law and not merely to make recommendations to the commission.59 Conversely, the Court refused to find Significance in the explicit use of the term "recommendation" in the statute to describe the division's decision.60 Specifically, the statute provides that if the division's "decision results in a recommendation for a rate different from that certified, the commission shall based upon [the] statement of reasons establish a new rate." 61 Although the Court oon-ceded that the word "recommendation" implies less than final authority, the Court found more compelling the directive to the commission that it establish a new rate based on .the division's statement of reasons.62 It thus construed the division's decision as final.
Similarly, the Court refused to accept an interpretation of another provision of the statute 63 which would have placed in the commission the power to reject the division's decision.64 That provision states: "If the commission determines that the statement of reason is inadequate to determine a fair, reasonable and adequate rate, it may remand the appeal to the hearing officer for further investigation." 65 The Court construed this right of remand to exist only where the statement of
reasons contained in the division's decision is inadequate to enable the commission to determine the new rate.66 The commission, in short, can remand only for clarification, not because it disagrees with the recom-mended rate.67 Finally, the Court pointed out that judicial review is of the "decision of the division"; the challenge cannot be brought until the commission has promulgated the new rate.68 For these reasons, the Court concluded that as between the division and the commission, the division's decision on a rate of reimbursement controls.
57 ld. at 1400, 390 N.E.2d at 725. 581d.
59 ld.
60 ld. at 1401, 390 N.E.2d at 726.
61 C.L. c. 6A, § 36.
62 1979 Mass. Adv. Sh. at 1401, 390 N.E.2d at 726. 63 C.L. c. 6A, § 36.
64 1979 Mass. Adv. Sh. at 1401, 390 N.E.2d at 726. 65 C.L. c. 6A, § 36.
66 1979 Mass. Adv. Sh. at 1401-02, 390 N.E.2d at 726.
67 ld. at 1401, 390 N.E.2d at 726. 68 ld. at 1402, 390 N.E.2d at 726.
§8.7 STATE AND LOCAL GOVERNMENT 277
The new and important status of the division of hearing officers may be surprising to some, but the Court found support for its decision in legislative intent to give the division the last word. "Fully aware that hearings officers previously played a subordinate role in the determina-tion of rates for providers, the legislature chose to give them the
in.-dependent function of conducting adjudicatory proceedings, including the authority to make rulings of law and not merely recommendations." 611 In a very real sense, then, Massachusetts has an administrative court or administrative law judge system in its division of hearing officers, at least with respect to certain matters such as determination of providers' rates for services.70
§8.7. Administrative Law-State Administrative Agencies-Educa-tion. In Amherst-Pelham Regional School Committee v. Department
of
Education,l the Court was called upon to resolve a dispute concerningthe relative power of local authorities and state agencies in the area of special educational needs. In that case, the parents of a child with a severe learning disability and who was a "child with special needs" under the speCial education law, chapter 766 of the Acts of 1972,2 en-rolled the child in a private residential school. 3 Pursuant to the proce-dures of chapter 766, the parents referred the child for an evaluation of his educational needs.4 In accordance with the statute, the public school convened a "core evaluation team" (CET), which recommended a nonresidential educational plan for the child.5 The parents rejected this plan.G After rejecting a second CET proposal, the parents requested a hearing with the Bureau of Child Advocacy (bureau) of the Depart-ment of Education pursuant to chapter 71B.7 The bureau hearing officer concluded that the private residential school program in which the child was enrolled was appropriate for his special needs.8 The department then ordered the school district to pay the costs of the private schooling retroactively from the date at which the parents rejected the school district's first plan.9
69 ld. at 1403, 390 N.E.2d at 727.
70 See Delaney, An Administrative Court for Massachusetts?, 58 MASS. L.Q. 373 ( 1973-74).
§8.7. 1 1978 Mass. Adv. Sh. 2673, 381 N.E.2d 922.
2 C.L. c. 7lB. See note 16 infra.
3 1978 Mass. Adv. Sh. at 2676, 381 N.E.2d at 926. 4 ld. at 2677, 381 N.E.2d at 926.
51d. ald.
7 ld. Chapter 766 of the Acts of 1972, codified as C.L. c. 7lB, requires that
special educational services be prOVided to a child with special educational needs. C.L. c. 7lB.
8 1978 Mass. Adv. Sh. at 2677-78, 381 N.E.2d at 926. 9 ld. at 2678, 381 N.E.2d at 926.
278 1979 ANNUAL SURVEY OF MASSACHUSE'ITS LAW §8.7
The school district brought an action for review of both agency deci-sions.tO Although the lower court judge found that the bureau's findings were supported by substantial evidence, he reported the following ques-tions of law concerning the role of the school committee and the scope of the bureau's authority under chapter 766;11 (1) where the bureau has determined that a program proposed by a school committee is in-adequate and that a private program is appropriate for the child, may the department order the child's placement into such program without first providing the school committee an opportunity to recommend an alternative? (2) where the bureau has determined that a plan rejected by the parents is inadequate and where the parents, pending the ap-peal to the bureau, have enrolled the child in an institution which the bureau has found to be appropriate, can the department order retro-active reimbursement to the parents by the city? (3) if so, to what date may the reimbursement be made retroaotive?12
The Supreme judicial Court responded in the affirmative to the first two reported questions,13 It concluded as to the third that parents may be reimbursed from the date at which they initially rejected the school committee's inadequate plan.14 With respect to the first reported ques-tion, the Court pointed out that section 3 of chapter 7lB gives the bureau the power to recommend alternative placements to the parents, who may consent to or reject them. 15 This section, the Court stressed, gives no further role to the school committee. 16 The Court stated: "It is significant that . . . the bureau's recommendations are made only to the parents, and not to the local school committee. Additionally, it is only the parents who have the statutory right to reject the bureau's recommendation." 17 In support of its construction of the statute, the Court emphasized the great detail with which the statute describes the options available to parents who reject the bureau's recommendation. IS It noted that if the legislature had intended a similar participatory role for the school committee it would have said SO.19 The Court thus
con-10 Id.
11 Id. at 2674, 381 N.E.2d at 925.
12 Id. at 2674-75, 381 N.E.2d at 925.
13 Id. at 2675, 381 N.E.2d at 925. 14 Id.
15 Id. at 2681, 381 N.E.2d at 927-28.
16 Id. at 2683, 381 N.E.2d at 928. C.L. c. 7lB, § 3, provides in pertinent part: "At the conclusion of said hearing . . . the [bureau] may recommend alternative educational placements to the parents . . . and [the] parents . . . may either con-sent to or reject such proposals." Id.
17 1979 Mass. Adv. Sh. at 2684, 381 N.E.2d at 929.
IS Id.
19 Id.
