Walter E. Fernald Corp. v. The Governor , 471 Mass. 520 ( 2015 )

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SJC-11801
WALTER E. FERNALD CORPORATION vs. THE GOVERNOR & others.1
Suffolk. February 5, 2015. - May 29, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
Corporation, Charitable corporation. Real Property, Ownership.
Governmental Immunity. Agency, Public agent.
Civil action commenced in the Land Court Department on
September 8, 2010.
The case was heard by Keith C. Long, J., on a motion for
summary judgment.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Joseph Callanan, Assistant Attorney General (John M.
Donnelly, Assistant Attorney General, with him) for the
defendants.
Thomas J. Frain (C. Alex Hahn with him) for the plaintiff.
LENK, J. The Walter E. Fernald Corporation (corporation),
1
Department of Developmental Services and Division of
Capital Asset Management.
2
established in 1850, is a charitable organization devoted to
serving the needs of the developmentally disabled. The
corporation brought an action in the Land Court, seeking, among
other things, a declaration under G. L. c. 231A, § 1
(declaratory judgment act), that it is the owner of certain
parcels of recorded land. The parcels are located on Norcross
Hill in Templeton (Templeton parcels). As defendants in its
suit, the corporation named the Governor, the Department of
Developmental Services, and the Division of Capital Asset
Management (collectively, the Commonwealth); the Commonwealth
had asserted ownership of the Templeton parcels by, among other
things, naming several of them in a statute designating an
expanse of land for conservation and public recreational
purposes. See St. 2002, c. 504.
A judge of the Land Court denied the Commonwealth's motion
to dismiss the corporation's suit on grounds of sovereign
immunity. Subsequently, the judge allowed the corporation's
motion for summary judgment. The judge concluded that there
could be no genuine dispute that, although a school established
by the corporation became an agency of the Commonwealth in the
early Twentieth Century, the corporation itself remained
independent of the Commonwealth, and purchased the Templeton
parcels on its own behalf. The judge therefore entered judgment
declaring the corporation's ownership of the parcels.
3
We affirm, holding that sovereign immunity does not apply
to the particular type of action brought here and adopting the
same analysis of the facts taken by the judge below.
1. Background. We outline the facts that gave rise to
this litigation, reserving the details for later discussion.
The corporation was created by a special act of the
Legislature, at a time when no general framework had been
enacted for the establishment of corporations.2 See St. 1850,
c. 150. The incorporating statute gave the corporation the
name, unfortunate by today's lights, "the Massachusetts School
for Idiotic and Feeble-minded Youth." St. 1850, c. 150, § 1.
As soon as it was created, the corporation established a school,
also named "the Massachusetts School for Idiotic and Feeble-
minded Youth" (school). In addition, the corporation devoted
resources to conducting and publishing research.
Over the years, the corporation changed its name several
times. In 1883, as the school began to accept adults as well as
children, the corporation took the name "the Massachusetts
School for the Feeble-Minded." Other name changes were made in
1925 ("the Walter E. Fernald State School") and 1987 ("the
Walter E. Fernald State School Corporation"). The corporation
assumed its current name ("the Walter E. Fernald Corporation")
2
See Larcom v. Olin, 160 Mass. 102, 104 (1893) (discussing
subsequent enactment of St. 1851, c. 133).
4
in 2006. Walter E. Fernald, for whom the corporation eventually
was named, served as the school's longtime superintendent in the
early Twentieth Century.
From the start, the Commonwealth made appropriations to
help support the school, both annually and for specific
purposes. See, e.g., Resolves 1851, c. 44; St. 1901, c. 303.
In several instances, the Commonwealth provided funding to
purchase land for the school. See Resolves 1887, c. 64;
Resolves 1897, c. 64. The corporation purchased the Templeton
parcels with its own money, in a series of transactions
conducted between 1923 and 1969. This land was used by the
school at various times, particularly for farming.
In 2002, the Legislature enacted a statute designating
enumerated parcels of land for "conservation and public
recreational purposes." St. 2002, c. 504. Five of the six
Templeton parcels were included among those listed in the
statute.3 The corporation brought an action in the Land Court,
seeking, among other things, a declaration that the Templeton
parcels are owned by the corporation.
Portions of the corporation's complaint were dismissed by a
Land Court judge in an order issued on February 14, 2011. The
3
Although the sixth parcel was not listed in St. 2002,
c. 504, the Walter E. Fernald Corporation (corporation) included
it in its complaint "out of an abundance of caution."
5
judge determined, in that decision, that the Governor was not a
necessary or proper party, and that the relief sought by the
corporation other than declaratory relief was not within the
Land Court's jurisdiction. The judge did not, however, agree
with the Commonwealth that the corporation's suit was barred
altogether by the doctrine of sovereign immunity.
The corporation moved for summary judgment on the balance
of its complaint. In another order, issued on December 27,
2013, the Land Court judge allowed the motion and declared the
corporation's ownership of the parcels, free of any claims by
the Commonwealth. The Commonwealth appealed, arguing that the
judge erred both in his rejection of the Commonwealth's
sovereign immunity defense and in his resolution of the merits.
We transferred the appeal to this court on our own motion.
2. Standard of review. We review a grant of summary
judgment de novo. See Federal Nat'l Mtge. Ass'n v. Hendricks,
463 Mass. 635, 637 (2012). We "need not rely on the rationale
cited and 'may consider any ground supporting the judgment.'"
District Attorney for N. Dist. v. School Comm. of Wayland, 455
Mass. 561, 566 (2009), quoting Augat, Inc. v. Liberty Mut. Ins.
Co., 410 Mass. 117, 120 (1991). Summary judgment is appropriate
if, viewed "in the light most favorable to the nonmoving party,"
Fuller v. First Fin. Ins. Co., 448 Mass. 1, 5 (2006), the
materials properly in the summary judgment record "show that
6
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law."
Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002).
3. Sovereign immunity. The doctrine of sovereign immunity
provides that the Commonwealth "cannot be impleaded into its own
courts except with its consent." Randall v. Haddad, 468 Mass.
347, 354 (2014) (Randall), quoting Woodbridge v. Worcester State
Hosp., 384 Mass. 38, 42 (1981). Such consent may be provided
"by statute"; it also may be "implicit[], where 'governmental
liability is necessary to effectuate the legislative purpose.'"
Woodward Sch. For Girls, Inc. v. Quincy, 469 Mass. 151, 177
(2014), quoting Todino v. Wellfleet, 448 Mass. 234, 238 (2007).
The doctrine applies "both to money judgments and more generally
to 'interference by the court at the behest of litigants.'"
Boxford v. Massachusetts Highway Dep't, 458 Mass. 596, 601
(2010), quoting New Hampshire Ins. Guar. Ass'n v. Markem Corp.,
424 Mass. 344, 351 (1997).
Sovereign immunity originated in the ancient notion that
"[t]he king can do no wrong." J.A. Sullivan Corp. v.
Commonwealth, 397 Mass. 789, 793 (1986). Scholars have for many
years "suggested that the doctrine is an anachronism in American
law," given our nation's rejection of the monarchy. See Morash
& Sons, Inc. v. Commonwealth, 363 Mass. 612, 618 (1973) (Morash
& Sons), citing K.C. Davis, 3 Administrative Law § 25.01, at 435
7
(1958). Many courts and legislatures have agreed; "[t]he courts
in some jurisdictions have abolished the doctrine of
governmental immunity entirely," and "[a]ll other jurisdictions
have eroded the immunity by both statutory exceptions and judge
made exceptions." Morash & Sons, supra at 618-619, and cases
cited. See H.J. Alperin, Summary of Basic Law § 17.132, at 870
(4th ed. 2009).
Our own view has been that "there should be limits to
governmental liability and exceptions to the rule of liability."
Morash & Sons, 363 Mass. at 623. Yet we also have recognized
that an overly comprehensive rule of sovereign immunity is
"unjust and indefensible as a matter of logic and sound public
policy." Whitney v. Worcester, 373 Mass. 208, 209 (1977)
(Whitney). We have explained that sovereign immunity creates an
"inversion of the law," shielding the government from liability
for wrongs that ordinarily would be redressed. See Morash &
Sons, supra at 621. Although this "inversion of the law," id.,
is financially beneficial to the general public, "it can hardly
be termed sound public policy that some persons contribute only
tax revenues to the commonweal while from others additional
contribution is exacted in the form of uncompensated injuries."
Whitney, supra at 215.
We have "long recognized that 'sovereign immunity is a
judicially created common law concept,' . . . and, as such, is
8
subject to judicial abrogation or limitation." Randall, 468
Mass. at 356, quoting Morash & Sons, 363 Mass. at 615, and
citing Whitney, 373 Mass. at 212. In 1977, we announced our
intention to abrogate sovereign immunity in tort cases. See
Whitney, supra at 210. Soon thereafter, the Legislature enacted
the Tort Claims Act, G. L. c. 258, which permits recovery,
subject to certain exceptions and limitations, for torts
committed by the Commonwealth, its subdivisions, and its agents.
No similar legislative action was needed with regard to actions
in contract, since the law has long been settled that "a State
consents to jurisdiction by voluntarily entering into a
contract." J.A. Sullivan Corp. v. Commonwealth, 397 Mass. at
793.
Sovereign immunity remains in place in other areas of the
law. See Randall, 468 Mass. at 357. We have identified three
"reasons of justice and public policy" (citation and quotation
omitted), id. at 358-359, that, in some contexts, support
continued application of the doctrine: sovereign immunity may
serve "to protect the discretionary functions of a public
official, . . . or to prevent the unauthorized actions of a
public official, . . . or to shield the public fisc from the
specter of virtually unlimited liability" (citations omitted).
Id., quoting Bates v. Director of the Office of Campaign &
Political Fin., 436 Mass. 144, 174 (2002) (Bates). We have
9
indicated our reluctance to apply the sovereign immunity
doctrine where it would not serve these goals. See Randall,
supra at 358-359 (purposes of sovereign immunity not served
where, in violation of court order, public employee deposited
funds in State retirement account); Bates, supra (purposes not
served where Legislature failed to appropriate funds to effect
law enacted by ballot measure). See also Morash & Sons, 363
Mass. at 619.
The Commonwealth's argument that the surviving portion of
the corporation's complaint is barred by sovereign immunity
rests largely on our one-half century old decision in Executive
Air Serv., Inc. v. Division of Fisheries & Game, 342 Mass. 356
(1961) (Executive Air). There, the Commonwealth purchased two
parcels of registered land and obtained certificates of title
from the Land Court. Id. at 357. The Commonwealth's deeds were
subject to leases held by the plaintiff, which operated an
airport on the land. Id. The plaintiff sought a declaratory
judgment invalidating the Commonwealth's deeds and certificates
of title. Id. The theory put forth by the plaintiff, so far as
our brief opinion reveals, was that the enactment of the
declaratory judgment act ended the Commonwealth's immunity as to
any suit brought under that act. See id. at 358. We rejected
that view, stating that the declaratory judgment act "relates to
procedure," and that, as other jurisdictions have held,
10
"sovereign immunity is not affected by declaratory judgment
procedure." Id. at 357-358.
We since have reiterated that the Legislature did not
intend to waive sovereign immunity for the universe of actions
brought under the declaratory judgment act. See, e.g., Sullivan
v. Chief Justice for Admin. & Mgmt. of the Trial Court, 448
Mass. 15, 24 (2006) (declaratory judgment act "includes only a
limited waiver of sovereign immunity"). See also Fathers &
Families, Inc. v. Chief Justice for Admin. & Mgmt. of the Trial
Court, 460 Mass. 508, 509-510 (2011) (judicial department is not
subject to declaratory judgment procedure). That is to say, we
have continued to maintain that a plaintiff cannot sidestep the
common-law shield of sovereign immunity, to the extent that that
shield remains intact, by using the procedural device of an
action for declaratory judgment.
We now hold, however, that our common-law sovereign
immunity doctrine does not reach the specific type of suit at
issue here, namely, one in which a plaintiff asserts its own
ownership of specified parcels of recorded land.4 This brand of
suit differs in two important ways from the one addressed in
4
As discussed infra, if a plaintiff seeking to vindicate
its ownership of recorded land were to initiate land
registration proceedings, those proceedings would in any event
bind the Commonwealth. See G. L. c. 185, § 45 (judgment of
registration "shall be conclusive upon and against all persons,
including the [C]ommonwealth").
11
Executive Air: the plaintiff here asserts its own ownership of
the land, rather than the ownership of a third party, and the
land at issue here is not registered to the Commonwealth. See
Executive Air, 342 Mass. at 357. We do not now reexamine our
conclusion in Executive Air that the suit brought there was
barred by sovereign immunity.
Our reasons for holding that sovereign immunity does not
encompass actions by which a plaintiff seeks to vindicate its
ownership of specified parcels of recorded land are the
following. First and foremost, actions of this type do not
implicate the concerns that support the continued application of
sovereign immunity. Disputes concerning a plaintiff's ownership
of specified parcels of recorded land do not tend to concern
"the discretionary functions of a public official." Randall,
468 Mass. at 358, quoting Bates, 436 Mass. at 174. In other
words, these actions are unlikely to be rooted in conduct
"characterized by the high degree of discretion and judgment
involved in weighing alternatives and making choices with
respect to public policy and planning," Whitney, 373 Mass. at
218, where judicial inquiry "might 'jeopardiz(e) the quality and
efficiency of government itself.'" Id., quoting Spencer v.
General Hosp., 425 F.2d 479, 481 (D.C. Cir. 1969).
These types of actions also do not typically stem from
"unauthorized actions of a public official," Randall, 468 Mass.
12
at 358, quoting Bates, 436 Mass. at 174, namely, attempts to
circumvent the ordinary procedures by which the Commonwealth
expends its funds. See George A. Fuller Co. v. Commonwealth,
303 Mass. 216, 119-220, 222-224 (1939) (sovereign immunity
successfully asserted to bar building contractor's suit for
payment approved ultra vires by emergency public works
commission). And the adjudication of a plaintiff's ownership of
specified parcels of recorded land would not subject the public
fisc to a "specter of virtually unlimited liability." Randall,
supra, quoting Bates, supra. The Commonwealth's potential
liability in such cases is, rather, limited to losing control of
properties that it does not truly own. In sum, in the words of
the Supreme Judicial Court of Maine, the type of action we
consider here "implicates none of the modern day considerations
that would justify the State's invocation of sovereign
immunity." Welch v. State, 853 A.2d 214, 216 (Me. 2004).
As in Randall, 468 Mass. at 356 n.21, we need not decide
here whether our common-law doctrine of sovereign immunity is
unconstitutional, in whole or in part. Nevertheless, in drawing
the boundaries of that doctrine, we recognize that it strains
against constitutionally protected values. Article 1 of the
Massachusetts Declaration of Rights protects "the right of . . .
acquiring, possessing and protecting property." The Declaration
of Rights provides also that the "officers of government . . .
13
are at all times accountable to [the people]," art. 5, and that
"[e]very subject of the commonwealth ought to find a certain
remedy, by having recourse to the laws, for all injuries or
wrongs which he may receive in his person, property, or
character," art. 11. Sovereign immunity diminishes the degree
to which our laws protect property rights, provide recourse to
legal proceedings, and hold government officers accountable to
the people.5 See Welch v. State, 853 A.2d at 217 (constitutional
protections of property and due process "would lose considerable
meaning if the doctrine of sovereign immunity prohibited the
people from bringing quiet title actions to settle ownership
disputes with the State"); GAR Assocs. III, L.P. v. State ex
rel. Texas Dep't of Transp., 224 S.W.3d 395, 401 (Tex. App.
2006) (inferring waiver of sovereign immunity from takings
provision of Texas Constitution).
The Commonwealth suggests that its claim to sovereign
immunity in the present circumstances is supported by Block v.
North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273
(1983) (Block), a case concerning a land dispute between a State
and the Federal government. Under the Federal Quiet Title Act
5
As a matter of degree, this is true in the current context
even though, as discussed infra, a plaintiff engaged in a
dispute with the Commonwealth over recorded land could turn also
to the relatively onerous process of land registration. See
note 4, supra.
14
of 1972, 28 U.S.C. § 2409a (2012), actions to quiet title
against the United States are subject to various restrictions,
including a twelve-year statute of limitation. See 28 U.S.C.
§ 2409a(g) (2012). The United States Supreme Court held in
Block, supra at 281, 284-285, that a plaintiff cannot circumvent
this limitation by directing its suit against Federal officials
rather than the Federal government. The Commonwealth points out
that the process of land registration, under G. L. c. 185,
§§ 26-45, binds the Commonwealth. See G. L. c. 185, § 45.
Proposing an analogy to Block, supra, the Commonwealth asserts
that "the availability of a land registration action reinforces
the conclusion that the Commonwealth is immune from [declaratory
judgment act] claims." This argument admits of at least two
readings, neither of which persuades us that it would be
appropriate for sovereign immunity to apply here.
First, the Commonwealth may be asserting that the
Legislature did not endeavor, in the declaratory judgment act or
the land registration statute, to waive its common-law sovereign
immunity in cases like the current one. This premise does not,
however, compel the conclusion that sovereign immunity bars the
corporation's suit, because we have long disclaimed the notion
that the Commonwealth "cannot be sued without legislative
consent." Morash & Sons, 363 Mass. at 619. To the contrary, as
we have explained both here and previously, because sovereign
15
immunity is "a judicially created common law concept," it is
subject to judicial limitations of the kind we describe today.
See Randall, 468 Mass. at 356, quoting Morash & Sons, supra at
615. See also Bates, 436 Mass. at 173 n.33; Whitney, 373 Mass.
at 212.
Alternatively, the Commonwealth may be suggesting that, by
enacting the land registration statute, the Legislature replaced
common-law sovereign immunity with a statutory scheme that
funnels all land disputes involving the Commonwealth to land
registration proceedings. In this vein, in Block, 461 U.S. at
285-286, the United States Supreme Court described the Federal
Quiet Title Act as "a precisely drawn, detailed statute"
intended by Congress "to provide the exclusive means by which
adverse claimants could challenge the United States' title to
real property." We do not think that our land registration
statute likewise seeks to "preempt[] more general remedies."
See id. at 285. The Quiet Title Act was created specifically
for the purpose of defining the parameters within which actions
for title to land may be brought against the United States. See
id. at 282-284. By contrast, "[t]he intent of [our land
registration] statute was to simplify land transfer and to
provide bona fide purchasers with conclusiveness of title."
Kozdras v. Land/Vest Properties, Inc., 382 Mass. 34, 43 (1980).
The rule that a judgment of registration "shall be conclusive
16
upon and against all persons, including the [C]ommonwealth,
whether mentioned by name in the complaint, notice or citation,
or included in the general description 'to all whom it may
concern,'" G. L. c. 185, § 45, is one among myriad provisions
devoted to achieving conclusiveness of title. We discern no
indication that this provision was intended to displace our
traditional doctrine of common-law sovereign immunity. This
second version of the Commonwealth's argument by analogy from
Block, supra, is therefore equally unavailing.
Having concluded that sovereign immunity should not bar
actions in which a plaintiff asserts ownership of specified
parcels of recorded land, we are not constrained to defer
"judicial action . . . to provide an inducement to the
Legislature to abrogate the immunity on its own." See Randall,
468 Mass. at 358, quoting Bates, 436 Mass. at 174. It is true
that, as discussed supra, we refrained for a time from
abrogating sovereign immunity in the tort law setting, even
after we had determined that the existing doctrine was
"indefensible." See Morash & Sons, 363 Mass. at 619. But the
jurisprudential shift that we anticipated in that context was
complex in its doctrinal detail and far-reaching in its
practical effect. Consequently, we reasoned that "comprehensive
legislative action was preferable to judicial abrogation
followed by an attenuated process of defining the limits of
17
governmental liability through case by case adjudication." See
Whitney, 373 Mass. at 209, and cases cited. By contrast, where
we have held only that sovereign immunity does not reach a
narrow, well-defined type of suit, we have applied those
holdings without delay. See Randall, supra; Bates, supra;
Morash & Sons, supra. We follow the same course today.
4. Ownership of the parcels. We thus arrive at the
merits. As mentioned, the Templeton parcels were purchased by
the corporation in a series of transactions between 1923 and
1969. The Commonwealth argues that, by the time of these
transactions, the corporation had become a State agency. The
Commonwealth itself obtained title to the parcels, in its view,
by virtue of St. 1980, c. 579, § 10, which transferred "[t]itle
to real property held in the name of a state agency . . . to the
name of [the C]ommonwealth." The Land Court judge disagreed,
determining, based on facts not in genuine dispute, that the
corporation had at all times remained an entity separate from
the Commonwealth.
The history of the corporation and the school that it
founded is not easy to parse. As the Commonwealth has conceded,
the corporation and the school came into being separately from
each other. But the school was essentially the corporation's
raison d'être for many years; it was only natural, therefore,
that the corporation's reports and other records did not in
18
every instance draw careful distinctions between the
undertakings and achievements of the school and those of the
corporation itself. To further confuse matters, for most of the
life of the corporation, the law did not require that a
corporation's name contain a term identifying it as such (as
G. L. c. 156D, § 4.01 [a] [1], does today). As a result, the
three names borne by the corporation from 1850 through 1987 were
identical to the school's names at the corresponding times. It
is sometimes difficult to identify whether documents using one
of these names intended to refer to the corporation or to the
school.
In the face of these challenges, the Land Court judge
conducted a thorough and thoughtful examination of the documents
in the record. On our independent review of the documents, we
agree with his analysis and conclusions.
a. Early years. There is no dispute that, when the
corporation was originally created, it was an entity independent
of the Commonwealth, with the capacity to acquire and hold its
own property.6 The incorporating statute subjected the
6
The Commonwealth asserts that the corporation was
established as a "public charitable corporation." See McDonald
v. Massachusetts Gen. Hosp., 120 Mass. 432, 432 (1876),
overruled on another ground by Colby v. Carney Hosp., 356 Mass.
327 (1968). We need not dwell on this assertion, as it carries
little, if any, significance as to the question whether the
corporation eventually became a State agency.
19
corporation to the laws then in effect concerning both
corporations in general and "manufacturing corporations" in
particular. See St. 1850, c. 150, § 1, referencing Rev. Stat.
cc. 38, 44 (1835). The provisions concerning "manufacturing
corporations" envisage commercial entities that, among other
things, pay dividends to their stockholders and limit their
liability. See Rev. Stat. c. 38, §§ 23, 26. By comparison, at
least some civic-minded corporations founded contemporaneously
were subjected only to the laws concerning corporations in
general. See, e.g., St. 1850, c. 95 (Charitable Association of
Roxbury Fire Department); St. 1850, c. 166 (Tremont Street
Medical School). Recognizing the corporation's status as an
independent body, a resolve of the Legislature in 1855 spoke of
it as "[a]n incorporated institution . . . enjoying the
patronage of the Commonwealth." Resolves 1855, c. 58 (emphasis
added).
Fifty-nine years after the corporation was created, in
1909, its status as an independent entity was reaffirmed by the
Legislature. A statute enacted that year overhauled the laws
concerning treatment of the "insane, feeble-minded and
epileptic, and . . . persons addicted to the intemperate use of
narcotics or stimulants." St. 1909, c. 504, § 1. Such
individuals were to be cared for by both "public and private
institutions," all of which were to be overseen by the State
20
Board of Insanity. See St. 1909, c. 504, §§ 2, 7. The chapter
of the statute devoted to the "feeble-minded" addressed two
institutions: the Massachusetts School for the Feeble-Minded --
then the name of both the corporation and the school -- and the
Wrentham State School. See St. 1909, c. 504, §§ 59-65. The
statute also contained a list of "state institutions"; this list
included the Wrentham State School, but not the corporation or
the school. See St. 1909, c. 504, § 14.
b. Later developments. The Commonwealth argues that the
corporation became a State agency as a result of events that
took place from 1917 through 1921. This history is as follows.
The corporation's board of trustees had always been
composed of twelve members. The trustees' responsibilities
encompassed both the "subscriptions, donations and bequests to
the corporation" and "all the interests and concerns of the
school." During the first decades of the corporation's
existence, several of the trustees -- originally eight, later
six -- were elected by the corporation's members, i.e., its
general assembly. The rest of the trustees were appointed by
the Governor and Council. See Resolves 1851, c. 44;
Resolves 1861, c. 26.
In 1917, the "anti-aid amendment" to the Massachusetts
Constitution was passed. This amendment prohibited the
appropriation of public money for "maintaining or aiding any
21
school . . . which is not publicly owned and under the exclusive
control, order and superintendence of public officers or public
agents authorized by the Commonwealth." Art. 46, § 2, as
amended by art. 103 of the Amendments to the Massachusetts
Constitution. In order for the school to be eligible to receive
public funding after the anti-aid amendment, the trustees
petitioned for legislation providing that each trustee "on the
part of the corporation" would "hold office" as trustee of the
school only after being "confirmed by the [G]overnor and
[C]ouncil." The Legislature granted the trustees' request. See
St. 1918, Special Acts c. 119 (1918 statute).
Subsequently, in 1919, the Legislature established the
Department of Mental Diseases. See St. 1919, c. 350, § 79. The
"state institutions" to be controlled by that department were
listed in a provision of the first edition of the General Laws,
enacted in 1921. This time, the "Massachusetts school for the
feeble-minded," still the name both of the school and of the
corporation, was named as a "state institution." G. L. c. 123,
§ 25 (1921 ed.).
As the Land Court judge perceived, the developments of 1917
through 1921, while modifying the management of the school, did
not diminish the status of the corporation as an independent
entity. To begin with, it is true that the 1918 statute granted
the Governor and Council the power to approve the corporation's
22
trustees before they could serve the school. But the
corporation and the trustees had long recognized the trustees'
separate functions in service of the corporation, on the one
hand, and the school, on the other. The corporation's bylaws of
1907, for instance, drew detailed distinctions between the
powers and duties of the trustees concerning the corporation and
those concerning the school (also referred to as the
"institution"), stating that the trustees
"shall have power to take any measures which they may
deem expedient for encouraging subscriptions, donations and
bequests to the corporation; to take charge of all the
interests and concerns of the school; to enter into and
bind the corporation by such compacts and engagements as
they may deem advantageous . . . . [A]t every annual
meeting they shall make a report in writing on the accounts
of the treasurer of the corporation and of the treasurer of
the institution, and of the general state of the
institution . . . and an inventory of all the real and
personal estate of the corporation."
(Emphasis added.) The 1918 statute did not purport to disturb
the role of the trustees in service of the corporation. Indeed,
it was only the school, rather than the corporation, that needed
to maintain eligibility for funding from the Commonwealth in the
wake of the anti-aid amendment; while the Legislature's
appropriations had always been dedicated to the needs of the
school, the corporation, as it stated in a 1917 report, had its
own "private funds . . . consist[ing] of carefully invested sums
received from time to time from friends of the school."
23
Similarly, the historical record reveals, particularly in
the corporation's annual reports, that the "Massachusetts school
for the feeble-minded" named as a "state institution" in 1921
was the school, not the corporation. The corporation and the
school had had separate treasurers since 1907. From 1917
onward, each of the corporation's annual reports, among those in
the summary judgment record, contains an accounting prepared by
the treasurer of the corporation, listing the corporation's
income, expenditures, and assets; and a separate accounting
prepared by the treasurer of the school. The school, but not
the corporation, was reported to receive much of its income from
the treasury of the Commonwealth. This entire system of
accounting would have been senseless if the corporation had by
then become a State agency.
The substance of the trustees' reports, too, details their
sometimes discrete decision-making concerning the finances of
the corporation, alongside their supervision of the school. For
instance, in a 1929 report, in addition to recounting news of
the school, the trustees wrote that they had "passed a
resolution that it is their policy to increase the principal of
the Corporation Funds . . . having due regard to the emergency
needs of the Institution, to the end that the income of the
Funds may be available for research purposes."
24
There is no question that the Commonwealth was aware of the
corporation's understanding that its corporate status and
finances were separate from those of the school; each of the
trustees' annual reports was addressed "To the Corporation, His
Excellency the Governor, the Legislature, and the Department of
Mental Diseases."
Thus, the corporation remained an entity independent of the
Commonwealth notwithstanding the tumult that 1917 to 1921
brought to the school. After 1921, the administrative
structures of both the school and the corporation remained
unchanged until 1987. Control of the school was then
transferred to the Department of Mental Retardation, and the
Governor was charged with appointing all of the school's
trustees. See St. 1986, c. 599, § 9. That the corporation
remained independent of the Commonwealth throughout the period
from 1921 to 1987 is illustrated by the following incident. In
1978, after the last of the Templeton transactions had taken
place, an attorney requested an opinion from the Attorney
General as to whether his law firm permissibly could perform
services in connection with two contracts that were planned to
be made between the corporation and agencies of the
Commonwealth. See Attorney General Conflict of Interest Opinion
25
No. 829 (1978).7 These contracts would not have been envisioned
if the Commonwealth had then regarded the corporation as a State
agency.
The history and character of the corporation are materially
different from those of corporations that our past decisions
have characterized as agencies of the Commonwealth. See, e.g.,
Trustees of Worcester State Hosp. v. Governor, 395 Mass. 377,
380-381 (1985) (discussing hospital established as State
entity). See St. 1832, c. 163, and St. 1833, c. 95); Spence v.
Boston Edison Co., 390 Mass. 604, 607-608 (1983) (discussing
housing authority, defined by G. L. c. 121B, § 3, as "[a] public
body politic and corporate," notwithstanding certain
"characteristics" of private corporation); Benton v. Trustees of
City Hosp. of Boston, 140 Mass. 13, 17 (1885) (discussing city
hospital).8 We agree with the Land Court judge, in short, that
7
The attorney was a trustee of the corporation and of the
school. On the facts described to him, the Attorney General
concluded that the law firm was permitted to provide the
services in question, because the corporation was "not a 'state
agency,'" and its anticipated contracts were "not within [the
attorney's] official responsibility as a trustee of [the
school]."
8
We decline the Commonwealth's invitation to address the
conditions that may cause a charitable corporation to be viewed
as a State agency. Suffice it to say that, as already
discussed, although the school established by the corporation
was supported largely by Commonwealth funds and was subject to
some control by the Governor, the same was not true of the
corporation.
26
the summary judgment record does not support the Commonwealth's
theory that the corporation, at some point, became a State
agency.
c. Purchases. The Templeton parcels were last conveyed in
the following transactions: (a) in 1923, the "Cowick" parcel
was granted, by three separate deeds, to the "Massachusetts
School for the Feeble-Minded, a corporation"; (b) in 1929, the
"Dyer" parcel was granted to the "Walter E. Fernald State
School, a Massachusetts corporation"; (c) that same year, the
"Thompson" parcel was granted to the "Commonwealth of
Massachusetts";9 (d) also that same year, the "Norcross" parcel
was granted to the "Walter E. Fernald State School"; (e) in
1939, the "Gardner Savings Bank" parcel was granted to the
"Walter E. Fernald State School"; and (f) in 1969, the
9
The Thompson parcel was not named in the corporation's
complaint. The Land Court judge explained, however, that both
parties had addressed that parcel in their summary judgment
briefs, and that the Commonwealth had reproduced the deed to the
parcel in its record appendix. The judge therefore determined
that the parcel presented an "issue[] not raised by the
pleadings [but] tried by express or implied consent of the
parties," which, by rule, is to be "treated in all respects as
if [it] had been raised in the pleadings." Mass. R. Civ. P.
15 (b), 365 Mass. 761 (1974). We discern no error in that
decision.
27
"Doucette" parcel was granted to the "Walter E. Fernald State
School, a Massachusetts corporation."10
Each of these parcels was purchased with the corporation's
own funds. The trustees were openly cognizant of the fact that
they were using the corporation's funds rather than drawing on
those of the Commonwealth. When they contemplated purchasing
the Norcross parcel, for instance, the trustees wrote that "due
to the biennial session of the Legislature and our small
appropriation the State could do nothing," and that, therefore,
"it was voted to have the Corporation acquire said land."
After the parcels were purchased, they were listed in the
corporation's reports as assets of the corporation, not the
school. By contrast, when, on earlier occasions, the
Legislature had provided funds for the purpose of purchasing
land for the school, the appropriating enactments stated that
the land would be purchased "in the name and on behalf of the
Commonwealth," Resolves 1897, c. 64, or that the deed to the
land would be "deliver[ed] to the treasurer of the
Commonwealth," St. 1897, c. 98, § 2.
10
The deeds to these six parcels are recorded in the
Worcester County registry of deeds at book 2289, pages 336-337
(three deeds to Cowick parcel); book 2487, page 188 (Dyer
parcel); book 2487, page 59 (Thompson parcel); book 2499, page
475 (Norcross parcel); book 2746, page 399 (Gardner Savings Bank
parcel); and book 4952, page 389 (Doucette parcel). The
corporation, in its brief, mistakenly counts seven parcels, for
reasons that are apparent but unimportant here.
28
For purposes of our analysis, the deeds to the parcels fall
into three categories. First, the deeds to the Cowick, Dyer,
and Doucette parcels explicitly name the "corporation" as
grantee. Given our conclusion that the corporation was not a
State agency, there remains no question that these deeds bestow
title on the corporation only.
The second category of deeds contains those to the Norcross
parcel and to the Gardner Savings Bank parcel. These deeds did
not state specifically that the grantee was a "corporation"; but
the grantee named in them, the "Walter E. Fernald State School,"
was the corporation's formal name when the deeds were made. The
meaning of a deed "is to be ascertained from the words
used . . . construed when necessary in the light of the
attendant circumstances." Patterson v. Paul, 448 Mass. 658, 665
(2007), quoting Sheftel v. Lebel, 44 Mass. App. Ct. 175, 179
(1998). The circumstances surrounding these deeds reveal that
the corporation was the intended grantee. The funds used for
these purchases belonged to the corporation; the Commonwealth
did not reimburse the corporation for the purchases; the
corporation never expressed an intent to make a gift of the land
to the Commonwealth; and, after each parcel was conveyed, it was
listed in the corporation's reports as an asset of the
corporation.
29
The same circumstances attended the third category of
deeds, which includes only the deed to the Thompson parcel.
Although that deed names the Commonwealth as grantee, the
Thompson parcel, too, was purchased by the corporation with its
own funds, and it, too, thereafter was counted among the
corporation's assets in the corporation's annual reports. In
the absence of any suggestion that the corporation intended to
gift this land to the Commonwealth, we agree with the Land Court
judge that the deed's reference to the Commonwealth as grantee
can only have been inadvertent.11
Judgment affirmed.
11
The Commonwealth argues that, even if we determine that
the corporation holds title to all of the parcels, further
proceedings are necessary to determine the character of that
title, and specifically whether the corporation holds the
parcels in trust for the Commonwealth. We deem the argument
waived, as it was not made below. See Weiler v. PortfolioScope,
Inc., 469 Mass. 75, 86 (2014), citing Canton v. Commissioner of
Mass. Highway Dep't, 455 Mass. 783, 795 n.18 (2010). Although
the case was decided on the corporation's motion for "partial"
summary judgment, that motion was partial -- as the Land Court
judge explained -- only insofar as portions of the complaint had
been dismissed on the defendants' motion.