Chapter 11: Administrative Law

1-1-1959

Chapter 11: Administrative Law

George N. Welch

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CHAPTER 11

Administrative Law

GEORGE N. WELCH

A.

ADMINISTRATIVE PROCEDURE

ACT

§ll.l. Judicial review. The term "adjudicatory proceeding," as found in the State Administrative Procedure Act,! was further defined in the 1959 SURVEY year by the decision in the Springfield Hotel

As-sociation case.2 In _{this case an American Legion post petitioned the}

board of license commissioners for leave to have the license of the Court Squilre Cafe transferred to it.S The local licensing authorities granted the petition. This action was taken under G.L., c. 138, §§12 and 23, subject to review by the Alcoholic Beverages Control Commis-sion. The petitioner then requested a hearing before the Com-mission; the hearing was denied and the local board's action was af-firmed. The association then petitioned the Superior Court on the ground that the charter of the Legion post did not authorize its hold-ing this license. The Superior Court dismissed the petition, as did the Supreme Judicial Court, on the ground that the APA permitted judicial review only in cases in which the administrative agency's de-cision was reached in an "adjudicatory proceeding." 4 Since the

stat-ute governing license transfersll _{provides a form of review in certain}

cases, the APA clause providing for review when review is not pro-vided for in the other statute was held inapplicable. The Court held

GEOR.GE N. WELCH is Chief Counsel of the Regional Office of the Veterans Adminis· tration, Boston.

The author wishes to acknowledge the extensive assistance of Edward V. Leja of the Board of Student Editors of the ANNUAL SURVEY in the preparation of this chapter.

§ll.l. 1 G.L., c. !lOA, §§I(l), 14. The act is hereinafter referred to as APA.

2 Springfield Hotel Association, Inc. v. Alcoholic Beverages Control Commission, 1959 Mass. Adv. Sh. 477, 157 N.E.2d 219.

S G.L., c. IlI8, §§12, 2!1.

4Id., c. !lOA, §1(1): .. 'Adjudicatory proceeding' means a proceeding before an agency in which the legal rights, duties or privileges of specifically named persons are required by constitutional right or by any provision of the General Laws to be det~rmined after opportunity for an agency hearing." Id. §14: "Except so far as any provision of law expressly precludes judicial review, any person or appointing authority aggrieved by a final decision of any agency in an adjudicatory proceeding, whether such decision is affirmative or negative in form, shall be entitled to judicial review .•. "

.,!!!g. The statute provIded them wIth no such right,6 and therefore their petition was dismissed.

The petitioners in this case also sought relief in the alternative by joining a writ of certiorari with the petition under the AP A. The Court held, as it predicted it would in Natick Trust Co. v. Board of Bank Incorporation,7 that this writ would provide an alternative

remedy only when the requirements for such a writ are satisfied. The mere refusal to review a case under the procedure set forth in an ap-propriate statute will not result in automatic review of the same case under rules of court procedure. The requirements of one form of re-view or the other must be satisfied before the tribunal will accept the case for review.

In Norwood Ice Co. v. Milk Control Commissions the respondent

Commission appealed a decision of the Superior Court holding that the respondent committed a procedural error and that therefore its order and decision were invalid. The facts show that the petitioner received a complaint from the Commission shortly after May 5, 1955, which indicated that his license might be revoked or suspended for violation of the Milk Control Law.9 _{The license then in effect was to}

expire on June 30, 1955. Under regulations of the Milk Control Law the petitioner filed an application for renewal on June 14, 1955.10 _The

hearing on the Commission's complaint lasted until July 25, 1955, but no decision was reached. However, on February 14, 1956, the Com-mission notified the petitioner that his application for renewal had been denied. The petitioner received no notice of hearing subsequent to May 5, 1955, and alleged that the Commission could not suspend or revoke a license unless the petitioner was notified.H On the ground that this was not done, the Superior Court found for the petitioner. General Laws, c. 94, §21 provides that APA §14(8) will govern review of board orders in cases arising under Chapter 94. The Supreme J u-dicial Court held: "On February 14, 1956, when the decision was ren-dered, the commission could have denied the application without any hearing provided the license had been revoked in the same or in the next preceding license year. The issues on the renewal application were the same as on revocation of the license. The findings of the com-mission were within the scope of the notice of the hearing." 12

City of Newton v. Department of Public Utilities13 _{involved the} re-view of a decision of the Department authorizing the Boston & Albany

6 Ibid.

7337 Mass. 615, 617, 151 N.E.2d 70, 72 (1958), commented on in 1958 Ann. Surv. Mass. Law §13.2.

8338 Mass. 435, 155 N .E.2d 758 (1959).

9 C.L., c. 94A.

10 Id. §21.

11 Id. §6.

108 1959 ANNUAL SURVEY OF MASSACHUSETTS LAW §11.2

Railroad and its lessee the New York Central Railroad to abandon sev-eral passenger stations and discontinue certain trains and stops of other trains. The Court said: "Since 'legal rights of specifically named per-sons' were required to be determined after hearing, the department hearings were 'adjudicatory proceedings' under c. 30A, §1(1), at least as to railroads." 14 In this determination they made reference to the

Norwood,15 Hayeck,16 and Natick Trust cases,l7

The .court also decided that the APA 18 did "not control the ques-tion of standing to seek review of decisions of the department, for c. 25, §5; expressly limits such standing to 'an aggrieved party in interest.' " 19

Since the petitioner did not allege a sufficient interest to make it "ag-grieved," it could not intervene under G.L., c. 25, §5, which is the statute governing review in this case.

§1I.2. Statutory methods of review: Effect of APA. In Allied Theatres of New England, Inc. v. Commissioner of Labor and In-dustries1 the Supreme Judicial Court heard an appeal from the

sustain-ing of a demurrer of the respondent Commissioner on the ground that the APA overruled the procedure set forth in G.L., c. 151, §142 for judicial review of the Commission's decisions. The Court held that the APA "did not expressly repeal c. 151, §14. Neither did it do so by implication." 8 The opinion implies that the APA was enacted to

prescribe methods and standards for judicial review in cases in which forms for review are not provided by statute. It was enacted to expand methods of review and not to restrict or preclude other statutory re-view standards.

The Court in Gannon v. Contributory Retirement Appeal Board 4

held that since the case was "pending in a court" when the AP A took effect, the act did not affect the proceeding, and the full limits of avail-ability of a writ of certiorari should be allowed the petitioner.

14 1959 Mass. Adv. Sh. at 1158, 160 N.E.2d at 112.

15 Norwood Ice Co. v. Milk Control Commission, 11118 Mass. 4115, 155 N.E.2d 758 (1959).

16 Hayeck v. Metropolitan District Commission, 11115 Mass. 1172, 140 N.E.2d 210 (1956), discussed in 1957 Ann. Surv. Mass. Law §24.2.

17 Natick Trust Co. v. Board of Bank Incorporation, 11117 Mass. 615, 151 N.E.2d 70 (1958), discussed in 1958 Ann. Surv. Mass. Law §lll.2.

18 G.L., c. 1l0A, §14: "Where a statutory form of judicial review or appeal is pro-vided, other than by extraordinary writ, such statutory form shall govern in all respects, except as to standards [§14(8)] for review."

191959 Mass. Adv. Sh. 1153, 1159, 160 N.E.2d 108, Illl. §11.2. 1338 Mass. 609,156 N.E.2d 424 (1959).

2 "Any person aggrieved by any decision of the commissioner may bring a petition in the superior court praying that such decision of the commissioner may be reviewed by the court, and, after such notice to the commissioner as the court deems necessary, it shall review such decision . . ."

§11.3. Zoning procedure. In Wrona v. Board

of

Appeals

of

Pitts-field/ the petitioners appealed a decision of the board of appeals au-thorizing one Louis Conway to build a one-story extension to a building owned by him and located in a single residence district. The building was used as a motor freight terminal and was used as such before the area was zoned into a single residence district. The decision of the board to issue a special permit to build an extension would result in a violation of the zoning ordinance of the city. The Supreme Judicial Court held that such a decision reached under rules governing ex-ceptions was void because it violated G.L., c. 40A, §4. Any extension beyond setback lines constituted a variance rather than an exception

and should have been sought under variance procedure.2

In Planning Board

of

Springfield v. Board

of

Appeals

of

Spring-field,s the Court held that G.L., c. 40A, §15, required a finding of "substantial hardship" before a variance could be issued. The Su-preme Judicial Court held that whatever hardship the petitioner was suffering in the operation of his business was not such a hardship as "especially affected" the two lots for which the variance was sought, and therefore this variance was properly denied. The Court cited

Blackman v. Board

of

Appeals

of

Barnstable4 _{as authority.}

The Court also considered the issue of judicial review in this case. G.L., c. 40A, §21, gives the right to appeal to "any municipal officer or board." The petitioners argued that this section of the statute re-quired the planning board to vote formally to authorize an appeal be-fore it could be taken. In this case a formal vote was not taken. The appeal was made by the city solicitor at the request of the planning board's engineer. The Court held that the appeal was proper, for it was not shown upon the record to be outside the area of routine re-sponsibility of the planning board engineer or of the city solicitor.5

It also held: "If the planning board had wished to disaffirm this action later, it could have easily done so, for filing the appeal had no final effect." 6

C.

LICENSING

§1l.4. License application. In Board

of

Health of Woburnv.

Sousa1 _{the defendants transported about a thousand pigs onto their}

§11.3. 1338 Mass. 87, 153 N.E.2d 631 (1958), also discussed in §12.4 infra.

2 G.L., c. 40A, §15.

3338 Mass. 160. 154 N.E.2d 349 (1958). also discussed in §12.1 infra.

4334 Mass. 446. 136 N.E.2d 198 (1956), discussed in 1956 Ann. Surv. Mass. Law §13.2.

0338 Mass. 160. 163. 154 N.E.2d 349. 351-352 (1958). 6338 Mass. at 164. 154 N.E.2d at 352.

110 1959 ANNUAL SURVEY OF MASSACHUSETIS LAW §1l.5

premise& in the city of Woburn during October and November, 1957. The board of health filed a petition for an injunction against the respondents on November 27, 1957. The board of health of a city or town has the power to require a permit for keeping swine,2 and the Supreme Judicial Court held that, when such a permit had not been applied for, an injunction would lie, and the fact that the respondents filed for a permit in February, 1958, some three months after this suit was brought, would not justify alteration of the decree or the imposi-tion of condiimposi-tions on the injunctive relief.

In the two Mosey Cafe cases,8 the plaintiff sought declaratory decrees to determine that (I) G.L., c. 140, §183A, and Revised Ordinances of Boston, c. 40A, §I, cl. 92, requiring the plaintiff to obtain licenses from the city for permission to operate radio, television and juk~ boxes on his premises on weekdays, and (2) G.L., c. 136, §4, and Revised Ordinances of Boston, c. 40A, §I, cl. 298, requiring similar licenses for these activities on the Lord's Day, did not apply to him. The Su-preme Judicial Court held in both cases that the petitioner was re-quired to obtain the licenses and that these requirements did not violate his constitutional rights. The Court cited as authority Chief Justice Rugg's statement in JafJarian v. Building Commissioner

of

Somerville:4 "The right to require licenses is based on the conception that places of public amusement may require supervision by public authorities to the end that they may not degenerate and become ob-noxious to the public welfare." II

D.

CIVIL SERVICE

§1I.5. Delegation of powers. Wasson v. Director of Civil Defense1

held that under the statute2 the Director of Civil Defense had the power to remove the petitioner at his pleasure. The facts of the case indicate, however, that the petitioner was removed, during the absence of the director, by a senior administrative assistant. On these facts the Supreme Judicial Court affirmed a Superior Court decision that the petitioner be reinstated with back pay until his term expired. The Court decided that although only the director had the power to re-move assistants at will, ratification by the director of removal by a subordinate would have the same effect. But since there was no proof

2 GL., c. Ill, §§1l1, 122, 1411.

8 Mosey Cafe, Inc. v. Mayor of Boston, 11118 Mass. 207, 154 N.E.2d 591 (1958); Mosey Cafe, Inc. v. Licensing Board for the City of Boston, 11118 Mass. 199, 154 N .E.2d 585 (1958). These cases are also discussed in §§9.4, 9.6 supra .

• 275 Mass. 267,271, 175 N.E. 641,642 (19111). 1I1l1l8 Mass. 199,204,154 N.E.2d 585, 589 (1958).

§1l.5. 11959 Mass. Adv. Sh. 925,159 N.E.2d lOll.

§11.6. Judicial review. Beaumont v. Director of Hospitalsl dealt with the discharge of a laboratory technician from the Boston City Hospital for "conduct unbecoming an employee of the hospital and for the good of the service." The petitioner was not notified of the decision to remove her until after a hearing held by the hospital board of trustees, and was neither given notice of the hearing nor an oppor-tunity to be heard. The petitioner then requested a hearing before the Civil Service Commission,2 and a hearing date was set. The peti-tioner did not appear at the hearing and was thereafter notified of the dismissal of her request. She then brought this petition in Superior Court and it was dismissed. The Supreme Judicial Court held, rely-ing upon Daley v. District Court of Western Hampden,3 that the petitioner could properly have brought this petition on grounds of lack of sufficient notice at the time she received her notice of dismissal, but since she decided to seek administrative review under Section 43(b) of G.L., c. 31, she was precluded from thereafter questioning the de-ficiency in the notice.

E.

JUDICIAL REVIEW

§11.7. Proper remedy. In Kesslen Brothers, Inc. v. Board of

Con-ciliation and Arbitration,l the Court held that a writ of certiorari was

a proper means to review the action of the board because the board is a quasi-judicial tribunal when sitting on labor arbitration under G.L., c. 150, §5. The petitioner in this case, however, did not show more than unspecified errors of law and fact finding, and therefore did not present a case for the granting of the writ.2

§11.6. 1338 Mass. 25, 153 N.E.2d 656 (1958).

2 G.L., c. 31, §43(b).

3304 Mass. 86, 23 N.E.2d 1 (1939).

§11.7. 11959 Mass. Adv. Sh. 903,158 N.E.2d 871.

2 The Court cited J. F. Fitzgerald Construction Co. v. Southbridge Water Supply