AIDS Support Group of Cape Cod, Inc. v. Town of Barnstable

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SJC-12224
AIDS SUPPORT GROUP OF CAPE COD, INC. vs. TOWN OF BARNSTABLE
& others.1
Barnstable. February 14, 2017. - June 14, 2017.
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.
Hypodermic Needle.
Civil action commenced in the Superior Court Department on
November 10, 2015.
A motion for a preliminary injunction was heard by Raymond
P. Veary, Jr., J., and the case was reported to the Appeals
Court by Robert C. Rufo, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Bennett H. Klein (Andrew Musgrave also present) for the
plaintiff.
Charles S. McLaughlin, Jr., Assistant Town Attorney (Ruth
J. Weil, Town Attorney, also present) for the defendants.
Andrew H. DeVoogd, Kate F. Stewart, & Tiffany M. Knapp, for
Massachusetts Infectious Diseases Society & others, amici
curiae, submitted a brief.
1
Board of health of Barnstable and director of public
health of Barnstable.
2
LENK, J. Prior to 2006, G. L. c. 94C, § 27, provided
criminal penalties for the possession, delivery, sale, or
exchange of hypodermic needles without a prescription. In 2006,
the Legislature amended the statute to regulate only the sale of
such needles, thereby decriminalizing, inter alia, the
possession of hypodermic needles. See St. 2006, c. 172, §§ 2, 3
(2006 act).
Since 2009, AIDS Support Group of Cape Cod, Inc. (ASGCC),
has been operating a free hypodermic needle "access" program in
Hyannis, a village in Barnstable. It provides clean syringes
without charge to those who use intravenous drugs, in order to
prevent the spread of diseases such as human immunodeficiency
virus (HIV) and hepatitis C. Claiming that ASGCC, which did not
first seek local approval of its program, is in violation of two
State statutes, G. L. c. 94C, § 27, and G. L. c. 111, § 215, the
town of Barnstable2 (town) ordered the cessation of the program.
General Laws c. 94C, § 27, in essence prohibits the sale of
hypodermic needles to those under eighteen, while G. L. c. 111,
§ 215, authorizes the Department of Public Health (DPH) to
operate nonsale needle exchange programs with local approval.
The town maintains that the statutes provide the only two legal
2
For convenience, we refer to the defendants the town of
Barnstable, its board of health, and its director of public
health collectively as the "town."
3
methods for the sale and distribution of hypodermic needles in
Massachusetts: sale by pharmacists and distribution by a
locally approved DPH program. ASGCC contends that neither
statute regulates the private nonsale distribution of hypodermic
needles.
In response to the town's cease and desist order, ASGCC
brought an action in the Superior Court, seeking injunctive
relief as well as a declaration that its nonsale needle "access"
program is not prohibited by either statute. After enjoining
the town preliminarily from enforcing its cease and desist
order, the judge reported the question without decision to the
Appeals Court, and we allowed ASGCC's application for direct
appellate review. We conclude that neither statute prohibits
the subject program and, accordingly, that the town's cease and
desist order cannot stand.3
3
We acknowledge the amicus brief submitted by Massachusetts
Infectious Diseases Society; Massachusetts Public Health
Association; Association of Behavioral Health; Harvard Pilgrim
Health Care; Blue Cross and Blue Shield of Massachusetts;
Baystate Health, Inc.; National Alliance of State and
Territorial AIDS Directors; Partners HealthCare System, Inc.;
UMass Memorial Health Care, Inc.; Greater Lawrence Family Health
Center; Lynn Community Health Center; Outer Cape Health
Services, Inc.; Duffy Health Center; Fenway Health; Manet
Community Health Center, Inc.; Massachusetts Association of
Alcoholism and Drug Abuse Counselors; Massachusetts Association
of Community Health Workers; Tapestry Health Systems, Inc.;
Victory Programs; Multicultural AIDS Coalition; AIDS Project
Worcester, Inc.; MassEquality.org, the Campaign For Equality;
New England AIDS Education and Training Center; Massachusetts
4
1. Background and prior proceedings.4 ASGCC is a nonprofit
organization that operates programs in Hyannis, Provincetown,
and Falmouth for those suffering from drug addiction and its
attendant illnesses. At its site in Hyannis, ASGCC distributes
free hypodermic needles and syringes as part of a comprehensive
program of services for people who use intravenous drugs.
Because sharing needles is a leading cause of the spread of
blood-borne diseases, notably HIV and hepatitis C, ASGCC seeks
to ensure that its clients use a clean needle every time they
inject opiates or other drugs. ASGCC therefore conducts an
initial assessment of each person who requests needles or other
services and provides only as many needles as staff believe will
be necessary so that the client will be able to use a clean
needle for each injection.5 ASGCC provides a collection
Chapter of The National Association of Social Workers; The
Dimock Center; Justice Resource Institute; John Snow, Inc.;
North Shore Health Project; Community Research Initiative of New
England; and Center For Human Development, Inc.
4
The facts are taken from the agreed-upon statement of
facts within the parties' joint motion to report the case the
Appeals Court, and we reference additional, uncontroverted facts
where necessary to supplement the discussion.
5
In his decision allowing the motion for a preliminary
injunction filed by AIDS Support Group of Cape Cod, Inc.
(ASGCC), the Superior Court judge noted ASGCC's report that, in
its then most recent fiscal year, it had issued 112,604 syringes
and received back 115,209 syringes, "for a rate of return of 102
[per cent]." He noted also:
5
receptacle for the return of used needles at its facility,
encourages clients to return needles, and gives each client an
individual "sharps container" for storing used needles before
they are returned, but does not require a return of the same
number of needles distributed in order to provide additional
needles.6 It also offers additional services for users of
intravenous drugs, such as medical case management, peer
support, housing, nutritional programs, testing for diseases
such as HIV, and risk reduction strategies. ASGCC does not sell
hypodermic needles, is not operating a program implemented by
DPH, and has not sought approval from the town to operate its
programs.
In 2015, the town discovered improperly discarded
"Both sides have responded to [the risk of improperly
discarded needles]. The [t]own has installed sharps
receptacles at four of its five fire stations. . . .
ASGCC, in addition to distributing individual sharps
containers and maintaining its own disposal kiosk, has also
conducted sweeps of its own neighborhood to locate and
secure discarded materials. Both sides have also shown a
willingness to expand these efforts and to coordinate their
resources in doing so (e.g.[,] installing secure sharps
receptacles in public comfort facilities, increasing public
awareness and education). This willingness, to the court's
view, shows the most promise, in both focus and scope, to
address the [t]own's foremost concern."
6
Consistent with ASGCC's own "harm reduction" goal of
clients using a clean needle every time they inject, the
Department of Public Health (DPH) also does not require programs
contracted under its auspices, pursuant to G. L. c. 111, § 215,
to insist on a one-to-one exchange of needles in order for a
client to participate in the program.
6
hypodermic needles in public places and traced the origin of at
least some of these needles to ASGCC. Soon thereafter, the town
ordered7 ASGCC to cease distributing hypodermic needles at its
Hyannis site, citing violations of G. L. c. 94, § 27, and G. L.
c. 111, § 215. The order indicated in this regard that, in
failing to obtain approval of its program from the town council,
ASGCC had violated G. L. c. 111, § 215, and that its program
also was not in compliance with G. L. c. 94, § 27, which permits
only licensed pharmacists or wholesale druggists to sell
hypodermic needles.
As noted, on November 10, 2015, ASGCC commenced an action
in the Superior Court seeking a declaration that the town's
order was in contravention of Massachusetts law because nothing
in the language of G. L. c. 94C, § 27, or G. L. c. 111, § 215,
prohibits private individuals or organizations from distributing
free hypodermic needles. ASGCC also sought equitable relief to
preliminarily and permanently enjoin enforcement of the order.
After an evidentiary hearing, a Superior Court judge
preliminarily enjoined the town from enforcing the cease and
desist order against ASGCC or otherwise interfering with ASGCC's
7
The town of Barnstable (town) issued two orders,
described, collectively, as the "order." The Barnstable police
department hand-delivered the first order on September 22, 2015,
which stated that it was a "warning." The Barnstable director
of public health mailed ASGCC a letter and a second order on
September 23, 2015.
7
distribution of hypodermic needles. The parties thereafter
jointly requested that the case be reported for determination by
the Appeals Court, pursuant to Mass. R. Civ. P. 64 (a), as
amended, 423 Mass. 1403 (1996). The judge allowed that motion,
and we allowed ASGCC's application for direct appellate review.
2. Discussion. The question before us is whether G. L.
c. 94C, § 27, or G. L. c. 111, § 215, prohibits private
individuals or organizations from distributing free hypodermic
needles. ASGCC maintains that we need look no further than the
plain language of the statutes, given that neither contains
language relevant to ASGCC's program or services. The town
argues that, notwithstanding the plain statutory language, the
legislative history indicates that the Legislature intended
G. L. c. 111, § 215, to provide the sole means by which an
organization may operate free needle distribution programs
outside the requirements of G. L. c. 94C, § 27. According to
the town, were we to conclude otherwise, only DPH-implemented
exchange programs would require local approval, while similar
private programs would be unregulated, a result the town
considers absurd. We disagree. The statutory language is clear
that programs such as ASGCC's are not prohibited, the
legislative history does not evidence an intent to the contrary,
and interpreting the two statutes to allow private entities to
operate nonsale needle exchange programs does not give rise to
8
an absurd result.
a. Statutory language. Our primary goal in interpreting a
statute is to effectuate the intent of the Legislature, and "the
statutory language is the principal source of insight into
legislative purpose." Bronstein v. Prudential Ins. Co., 390
Mass. 701, 704 (1984). Therefore, "[w]here the language of a
statute is clear and unambiguous, it is conclusive as to
legislative intent." Worcester v. College Hill Props., LLC, 465
Mass. 134, 138 (2013), quoting Martha's Vineyard Land Bank
Comm'n v. Assessors of W. Tisbury, 62 Mass. App. Ct. 25, 27–28
(2004). Accordingly, turning first to the plain language of the
statutes, it is clear that, by their words alone, neither G. L.
c. 94C, § 27, nor G. L. c. 111, § 215, proscribes ASGCC's
activities.
General Laws c. 94C, § 27, regulates only the sale of
hypodermic needles and syringes. It provides:
"Hypodermic syringes or hypodermic needles for the
administration of controlled substances by injection may be
sold in the commonwealth, but only to persons who have
attained the age of [eighteen] years and only by a
pharmacist or wholesale druggist licensed under the
provisions of [G. L. c. 112], a manufacturer of or dealer
in surgical supplies or a manufacturer of or dealer in
embalming supplies. When selling hypodermic syringes or
hypodermic needles without a prescription, a pharmacist or
wholesale druggist must require proof of identification
that validates the individual's age."
At the time of the cease and desist orders in 2015, G. L.
c. 111, § 215, stated, in relevant part:
9
"The department of public health is hereby authorized
to promulgate rules and regulations for the implementation
of not more than ten pilot programs for the exchange of
needles in cities and towns within the commonwealth upon
nomination by the department. Local approval shall be
obtained prior to implementation of each pilot program in
any city or town."8
In sum, the plain language of the statutes simply does not
proscribe free distribution of hypodermic needles by a private
individual or organization, such as ASGCC, that does not operate
a program implemented by DPH. See Bordenkircher v. Hayes, 434
U.S. 357, 363 (1978).
b. Legislative history. The town asserts, however, that
the plain language does not, in this case, accurately reflect
the intent of the Legislature, and that other canons of
statutory construction must be used in order to avoid an absurd
result. See Sullivan v. Brookline, 435 Mass. 353, 360 (2001) ("A
fundamental tenet of statutory interpretation is that statutory
language should be given effect consistent with its plain
meaning and in light of the aim of the Legislature unless to do
so would achieve an illogical result"). The legislative history
8
General Laws c. 111, § 215, was amended in 2016, but those
amendments, while removing any restriction on the number of DPH
programs, did not expand the provision to reference anything
other than DPH programs. The statute currently provides:
"The department of public health may implement needle
exchange programs for the exchange of needles in cities and
towns. Prior to implementation of a needle exchange
program, approval shall be obtained from the board of
health in the hosting city or town."
10
of G. L. 94C, § 27, and G. L. c. 111, § 215, the town maintains,
indicates a legislative intent to restrict access to hypodermic
needles to one of two methods: sale by pharmacists or
distribution by a DPH-sponsored needle exchange program. Where
"the language of the statute is plain and unambiguous, . . .
legislative history is not ordinarily a proper source of
construction." Hoffman v. Howmedica, Inc., 373 Mass. 32, 37
(1977). Nonetheless, as the town argues, we also must "construe
statutes that relate to the same subject matter as a harmonious
whole and avoid absurd results." Canton v. Commissioner of the
Mass. Highway Dep't, 455 Mass. 783, 791 (2010). Therefore, we
consider the town's assertion that the successive legislative
decisions to regulate the sale of hypodermic needles, and also
to regulate free distribution through DPH programs, indicate a
clear intent to proscribe other types of free distribution, and
that allowing a private program like ASGCC's to exist, outside
the ambit of DPH-implemented programs, would be absurd.
The town asserts that, by amending G. L. c. 94C, § 27,
in 2006, the Legislature "anointed" pharmacists as the
"gatekeepers" of "sale and distribution" of hypodermic needles.
The town contends further that, by enacting these amendments to
G. L. c. 94C, § 27, while retaining G. L. c. 111, § 215, the
Legislature intended the provisions of G. L. c. 111, § 215, to
regulate any organization that wished to distribute free
11
hypodermic needles, outside the regulations on sales set forth
in G. L. c. 94C, § 27. In addition, the town points to prior,
unsuccessful efforts to amend G. L. c. 94C, § 27, before
implementation of the 2006 act, subsequent unsuccessful efforts
to amend G. L. c. 111, § 215, and the 2016 expansion of G. L.
c. 111, § 215, as evidence of legislative intent to restrict
nonsale possession of hypodermic needles in enacting the 2006
act. In particular, in the town's view, the expansion of G. L.
c. 111, § 215, in 2016, confirms that, in 2006, the Legislature
did not authorize the establishment of private programs that
distribute free hypodermic needles but, rather, limited needle
exchange programs to those implemented by DPH.9
The legislative history of G. L. c. 94C, § 27, does not
support the town's contention that that statute, read in
9
In support of this argument, the town relies extensively
on a Superior Court judge's interpretation of G. L. c. 111,
§ 215, in Holyoke City Council vs. Holyoke, Mass. Super. Ct.,
No. 12-0837 (Hampden County Mar. 14, 2016), which the town
argues represents the proper analysis of the interplay between
the two statutes that regulate hypodermic needles. The issue
before the Superior Court in that case, however, was whether a
town council or town board of health was the proper "local
authority" to approve DPH-sponsored needle exchange programs, a
question quite distinct from the one before us. The judge
himself indicated as much in a decision on a motion for
reconsideration, stating that he was not confronted with the
question whether G. L. c. 111, § 215, is applicable to private
entities. Since the decision in that case, the Legislature has
amended G. L. c. 111, § 215, to clarify that a local board of
health is now the approving authority for DPH programs. See
St. 2016, c. 133, § 65.
12
conjunction with the decision not to repeal G. L. c. 111, § 215,
regulates nonsale distribution. Prior to 2006, G. L. c. 94C,
§ 27, provided criminal penalties for the possession, delivery,
sale, or exchange of hypodermic needles without a prescription.
See G. L. c. 94C, § 27 (a), as amended through St. 1993, c. 224,
§ 2 ("No person, not being a [licensed professional] shall have
in his possession a hypodermic syringe [or] hypodermic
needle. . ." [emphasis added]); G. L. c. 94C, § 27 (b), as
amended through St. 1993, c. 224, § 2 ("No such syringe, needle
or instrument shall be delivered or sold to, or exchanged with,
any person except a [licensed professional]" [emphases added]).
In enacting "An Act relative to HIV and Hepatitis C prevention,"
St. 2006, c. 172, §§ 2, 3, the Legislature removed from G. L.
c. 94C, § 27, all references to possession, delivery, and
exchange, choosing to retain only the word "sold." See G. L.
c. 94C, § 27, as appearing in St. 2006, c. 172, § 3. Given the
elimination of all references to possession, delivery, and
exchange, we cannot infer, as the town suggests, that the
Legislature intended the current version of G. L. c. 94C, § 27,
to continue to regulate possession, delivery, and exchange.
“Where the Legislature has deleted . . . language, apparently
purposefully, the current version of the statute cannot be
interpreted to include the rejected requirement. Reading in
language that the Legislature chose to remove . . . violates
13
basic principles of statutory construction and impermissibly
interferes with the legislative function." Commonwealth v.
Porges, 460 Mass. 525, 530 (2011), quoting Kenniston v.
Department of Youth Servs., 453 Mass. 179, 185 (2009).10
The conclusion that G. L. c. 94C, § 27, applies only to the
sale of hypodermic needles is required also by the statutory and
common-law definitions of "sale" and "distribution." General
Laws c. 94C, § 1, defines the word "[d]istribute" as "to deliver
other than by administering or dispensing a controlled
substance." While "sale" has no statutory definition, it is
commonly understood as meaning "[t]he transfer of property or
title for a price." Commonwealth v. Keefner, 461 Mass. 507, 513
n.3 (2012), quoting Black's Law Dictionary 1454 (9th ed. 2009).
"Sell" is defined as "[t]o transfer (property) by sale."
Black's Law Dictionary (10th ed. 2014). Sale thus is legally
10
The town points to language in three prior proposed
amendments to G. L. c. 94C, § 27, over the course of ten years,
that would have exempted from criminal penalties the
distribution of hypodermic needles by any program, whether
private or public. The town maintains that these efforts
demonstrate the Legislature's consideration and rejection of the
concept of allowing private organizations to distribute
hypodermic needles. See 1995 Senate Doc. No. 554; 1997 Senate
Doc. No. 517; 1999 Senate Doc. No. 537. We do not consider
proposed legislation that was never enacted as being indicative
of legislative intent; rather, we look to the statutory language
that the Legislature in fact adopted. See, e.g., Duracraft
Corp. v. Holmes Prods. Corp., 427 Mass. 156, 162-164 (1998). In
any event, certain of the proposed exemptions were included in
G. L. c. 94C, § 27 (f) (now repealed).
14
distinct from distribution. See Keefner, supra ("[T]he term
'sell' or 'sale' is narrower than the term 'distribution' and we
agree with the judge that they are not synonymous"). The town's
contention that G. L. c. 94C, § 27, codified the role of
pharmacists as gatekeepers for both "sale and distribution" of
hypodermic needles is accordingly unavailing.
The town also claims that cross references contained within
prior versions of G. L. c. 94C, §§ 27 and 27A, and G. L. c. 111,
§ 215, provide evidence of legislative intent that G. L. c. 111,
§ 215, continues to apply to nonsale programs, such as the ASGCC
program. This contention is unpersuasive, for the reason, if no
other, than that the 2006 act eliminated the very cross
references upon which the town relies.
In previous versions of the statutes, portions of the
language of G. L. c. 94C, § 27, and G. L. c. 111, § 215, did
reference each other. Prior to 2006, G. L. c. 94C, § 27,
included subsection (f), which explicitly exempted from criminal
liability the possession of needles without a prescription "as
part of a pilot program approved by [DPH] in accordance with
[G. L. c. 111, § 215]." The 2006 act repealed G. L. c. 94C,
§ 27 (f). See St. 2006, c. 172, § 15. With respect to
currently effective legislation, the 2006 act added a new
section, G. L. c. 94C, § 27A, which requires DPH, along with the
Department of Environmental Protection, to design and implement
15
programs for the collection of used hypodermic needles; the
section does not reference programs implemented by DPH.11
In short, following the extensive amendments of the 2006
act, decriminalizing the possession of hypodermic needles
without a prescription, G. L. c. 94C, § 27, no longer contains
any reference to programs implemented by DPH under the authority
granted to it in G. L. c. 111, § 215. Although, as the town
argues, the statutes "relate to the same subject matter,"
Canton, 455 Mass. at 791, we do not read words into a statute
that the Legislature saw fit to remove. See Porges, 460 Mass.
at 530. The removal from G. L. c. 94C, § 27, of all statutory
references to G. L. c. 111, § 215, is consistent with the
legislative purpose of decriminalization; once criminal
penalties had been eliminated, the exception to criminal
liability for possession of needles acquired through a DPH
program was no longer needed. Nothing in these cohesive changes
reveals a legislative intent that G. L. c. 111, § 215, would
restrict possession of needles acquired by any means other than
sales pursuant to G. L. c. 94C, § 27. Indeed, the proponents of
the 2006 act stated, in no uncertain terms, that "[w]ithout
11
The 2006 act also contained a single reference to
programs established under G. L. c. 111, § 215, in a section
that was not codified, which required DPH to "perform a
comprehensive study and review of the existing needle exchange
programs established pursuant to [G. L. c. 111, § 215]." St.
2006, c. 172, § 15.
16
providing the opportunity for a clean needle it's like spreading
disease and condoning it." State House News Service (Senate
Sess.), June 1, 2006 (statement by Sen. Steven Tolman). See
State House News Service (Senate Sess.), June 1, 2006 (statement
by Sen. Robert O'Leary) (any policy based on restricting access
to needles is "fundamentally flawed").
In an effort to buttress its contention that the
Legislature intended to retain nonsale restrictions, the town
calls attention to two unsuccessful efforts to amend G. L.
c. 111, § 215, subsequent to enactment of the 2006 act,12 and
also to the later expansion of G. L. c. 111, § 215, in 2016.
None of these efforts sheds any light on the Legislature's
intent in 2006, when it enacted the now controlling G. L.
c. 94C, § 27, "An Act relative to HIV and Hepatitis C
prevention." See Commonwealth v. Chamberlin, 473 Mass. 653,
660-662 (2016), quoting Massachusetts Comm'n Against
Discrimination v. Liberty Mut. Ins. Co., 371 Mass. 186, 194
(1976) ("the views of a subsequent [Legislature] form a
hazardous basis for inferring the intent of an earlier one");
Cook v. Patient Edu, LLC, 465 Mass. 548, 555 n.14 (2013) ("We do
not draw conclusions concerning the intent of the Legislature
based on the failure to enact a subsequent amendment"). Nor
12
See Proposed Amendment No. 77 to 2016 House Doc. No.
3944; 2016 Senate Doc. No. 2305, § 87.
17
does the 2016 legislation amending G. L. c. 111, § 215, advance
the town's argument in this regard. That legislation removed
restrictions on the number of programs that DPH may implement,
changed the status of such programs from "pilot" to permanent,
and clarified that the local approval needed for such programs
was to come from boards of health. The amendment is silent, as
before, as to any restrictions on private providers of the same
service. To the extent that this 2016 legislation in any way
illuminates the Legislature's intent ten years before, it
suggests an ongoing legislative effort to expand, rather than
limit, nonsale access to hypodermic needles.
Finally, we do well to note that the town's position stands
in tension with the basic and fundamental legal principle that
an activity not prohibited or restricted by law is lawful. See
1 W. Blackstone, Commentaries *45. "To punish a person because
he has done what the law plainly allows him to do is a due
process violation of the most basic sort . . . ."
Bordenkircher, 434 U.S. at 363. Concluding that ASGCC's
services are unlawful under either G. L. c. 94C, § 27, or
G. L. c. 111, § 215, would be tantamount to doing just that.
3. Conclusion. The matter is remanded to the Superior
Court for entry of a declaration that G. L. c. 94C, § 27, and
G L. c. 111, § 215, do not prohibit ASGCC from engaging in free
distribution of hypodermic needles, and an injunction
18
permanently enjoining enforcement of the town's order to cease
and desist.
So ordered.