Carey v. Commissioner of Correction

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SJC-12369
MICHAEL CAREY & others1 vs. COMMISSIONER OF CORRECTION.
Suffolk. January 8, 2018. - April 19, 2018.
Present: Gants, C.J., Lowy, Budd, Cypher, & Kafker, JJ.
Commissioner of Correction. Regulation. Administrative Law,
Agency's interpretation of regulation, Administrative
Procedure Act. State Administrative Procedure Act.
Civil action commenced in the Superior Court Department on
January 2, 2014.
The case was heard by Joseph F. Leighton, Jr., J., on
motions for summary judgment.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Leonard M. Singer for the plaintiffs.
William D. Saltzman for the defendant.
1 Gatewood West and Brenda Frazier. David Nathanson, Andrew
W. Cowan, and Adriana Contartese, who were plaintiffs in the
action in the Superior Court, have not participated in this
appeal. See note 3, infra.
2
BUDD, J. In 2013, the Department of Correction
(department) announced that visitors to correctional facilities
would be subject to search by drug-detecting dogs. The
plaintiffs, who are visitors to correctional facilities who are
not attorneys, allege that this canine search policy (policy)
violated the department's existing regulations and that the
department failed to follow requirements of the Administrative
Procedure Act (APA), G. L. c. 30A, §§ 1 et seq., in implementing
this new policy. The defendant Commissioner of Correction
(commissioner) contends that the policy is consistent with the
department's existing regulations and is exempt from the APA.
We conclude that although the policy is not inconsistent
with the department's existing regulations, it is not exempt
from the APA. Given the policy's substantial impact on
institutional security, however, entry of judgment shall be
stayed for 180 days to permit the department to take action
consistent with this opinion, during which time the department
may continue to enforce the policy.
1. Background. In early 2013, the department announced
that it would begin subjecting prison visitors to search by
drug-detecting dogs.2 The plaintiffs commenced this action to
2 In early 2013, the Department of Correction (department)
announced its intention to implement canine searches via a video
recording that played in correctional facility lobbies. The
department posted a similar video on the Internet Web site
3
prevent the department from implementing the new policy. The
plaintiffs sought a judgment declaring that the policy was not
authorized by the department's existing regulations, as well as
a preliminary injunction to enjoin the department from
implementing the policy without its being promulgated pursuant
to the APA.3 A judge in the Superior Court denied the
plaintiffs' motion for a preliminary injunction, concluding that
the wording of the regulation governing visits by members of the
general public was broad enough to allow for canine searches.
YouTube. In March, 2013, the department posted a fact sheet
regarding the new policy on its own Web site, stating in part:
"In response to an increase in drug and other contraband-related
incidents involving visitors, the [department] will soon employ
the use of dogs, trained to detect the presence of drugs, to
address this problem." The department also distributed and
posted documents regarding the policy, stating in pertinent
part: "To further its ability to detect and prevent [drug
smuggling] activity, the [department] will implement the use of
non-aggressive, highly trained narcotic detection dogs in
certain prison facilities for visitor and staff searches
beginning the first full week in November."
3 The complaint alleged a violation of the regulation
governing attorney visits, see 103 Code Mass. Regs. § 486.07(4)
(2015), and sought a judgment declaring that the policy was not
authorized. The judge in the Superior Court who granted summary
judgment permanently enjoined the department from enforcing the
policy with regard to attorney visitors, on the ground that the
regulation governing attorney visits did not allow for
additional search procedures. The Commissioner of Correction
(commissioner) did not appeal from that portion of the judgment.
Those plaintiffs who were attorneys have not participated in
this appeal.
4
The policy was thereafter implemented. The dogs performing
the searches are not aggressive and remain leashed at all times.4
They "alert" to the presence of a banned substance by sitting;
they do not snarl, lunge, or bite. There are alternative
procedures for those visitors who are allergic to, or afraid of,
dogs.
A second Superior Court judge granted summary judgment for
the commissioner, entering a judgment declaring that the
commissioner had the authority to establish the policy without
having to comply with the procedural requirements of the APA
because the policy is "sufficiently similar to the searches
specifically enumerated in the regulatory language." The
instant appeal followed. We transferred the case to this court
on our own motion.
2. Discussion. Because this matter comes before us
following a grant of summary judgment, we look to the summary
judgment record and review de novo. Miller v. Cotter, 448 Mass.
671, 676 (2007).
a. The viability of the policy. The plaintiffs argue that
the policy is prohibited by the department's existing
regulations. We disagree.
4 As of January, 2014, there were four department dogs, all
golden or Labrador retrievers: Sophie, Bailey, Greta, and Rudy.
Each dog has a handler, one of whom serves as canine commander
and oversees the dogs' training program.
5
By statute, the commissioner is required to "make and
promulgate necessary rules and regulations incident to the
exercise of his powers and the performance of his duties
including but not limited to rules and regulations regarding
. . . visiting privileges." G. L. c. 124, § 1 (q). The
governing regulation states:
"Each superintendent shall establish a search procedure
that is effective in preventing the smuggling of articles
into the visiting area of the institution. The search
procedure may include as a prerequisite to admission that
visitors successfully pass through a metal detector and/or
scanner, and/or a personal search, and that any articles
they are carrying be thoroughly searched. . . ."
103 Code Mass. Regs. § 483.14(2) (2004).
A plaintiff challenging an agency interpretation has a
"formidable burden." Ten Local Citizen Group v. New England
Wind, LLC, 457 Mass. 222, 228 (2010), quoting Northbridge v.
Natick, 394 Mass. 70, 74 (1985). Unless an agency's
interpretation of its own regulation is "arbitrary,
unreasonable, or inconsistent with the plain terms of the rule,"
such interpretation is entitled to deference. Manor v.
Superintendent, Mass. Correctional Inst., Cedar Junction, 416
Mass. 820, 824 (1994), quoting Finkelstein v. Board of
Registration in Optometry, 370 Mass. 476, 478 (1976).
Here, the plaintiffs allege not that the policy is
arbitrary or unreasonable, but that it is inconsistent with the
existing regulation because, they claim, the policy only permits
6
searches that are similar to metal detectors and personal
searches. We see nothing in the language of the general
regulation that precludes a canine search. On the contrary, by
using "shall," the regulation mandates that the search procedure
be effective in preventing smuggling of contraband into
correctional facilities.5 See Galenski v. Erving, 471 Mass. 305,
309 (2015). Further, as to the specifics of any such procedure,
the regulation uses broad, permissive language (i.e., "search
procedure may include" [emphasis added]).6 103 Code Mass. Regs.
5 The plaintiffs argue that the policy is also inconsistent
with the regulation because the commissioner instituted it,
whereas the regulation states that the "superintendent [of each
correctional facility] shall establish a search procedure." 103
Code Mass. Regs. § 483.14(2) (2004). This argument is
unpersuasive. By statute the ultimate authority over the
operation of all correctional facilities lies with the
commissioner. G. L. c. 124, § 1 (q).
6 We disagree with the plaintiffs' contention that the
doctrine of ejusdem generis limits the department to searches
similar to those enumerated. Ejusdem generis is a canon of
statutory construction that applies to lists "[w]here general
words follow specific words in a statutory enumeration"
(citation omitted). Banushi v. Dorfman, 438 Mass. 242, 244
(2002). It limits the "general terms which follow specific ones
to matters similar to those specified." Commonwealth v.
Gallant, 453 Mass. 535, 542 (2009), quoting Powers v. Freetown–
Lakeville Regional Sch. Dist. Comm., 392 Mass. 656, 660 n.8
(1984). Ejusdem generis does not apply here because rather than
beginning with specific terms, this list begins with a general
term, "a search procedure that is effective," then provides
nonexclusive examples. 103 Code Mass. Regs. § 483.14(2). Cf.
United States v. Turkette, 452 U.S. 576, 581-582 (1981)
(declining to apply ejusdem generis where statute did not
conform to structure of list of specific terms preceding
disputed general term); Trustees of Andover Theological Seminary
v. Visitors of the Theological Inst. in Phillips Academy in
7
§ 483.14(2). See Wiedmann v. Bradford Group, Inc., 444 Mass.
698, 709-710 (2005) (use of "may" is permissive, not mandatory).
Notwithstanding the possibility of a false positive,7 there is no
dispute that canine searches are effective in detecting
contraband that metal detectors and personal searches may not
detect. Giving due deference to the department's interpretation
of its regulation, we conclude that the existing regulation
permits canine searches.
b. The APA. Apart from the question whether the canine
search policy is permissible under the department's current
regulations is the question whether the department was required
to follow the procedures set forth in the APA for promulgating
or amending regulations. The APA details procedures that State
agencies, including the department, must follow when adopting
new regulations (as defined in the statute). Its purpose is to
"establish a set of minimum standards of fair procedure below
which no agency should be allowed to fall" and to create
Andover, 253 Mass. 256, 270 (1925) (declining to apply ejusdem
generis where general words preceded disputed list).
7 The plaintiffs direct our attention to case law
recognizing that dogs sometimes "alert falsely" either to
remnants of drugs or in order to please their handlers. See
Commonwealth v. Ramos, 72 Mass. App. Ct. 773, 776 (2008). The
plaintiffs do not allege, however, that canine searches are
ineffective.
8
uniformity in agency proceedings.8 Curran & Sacks, The
Massachusetts Administrative Procedure Act, 37 B.U. L. Rev. 70,
76-77 (1957). See Reid v. Acting Comm'r of Dep't of Community
Affairs, 362 Mass. 136, 144 (1972); Palmer v. Rent Control Bd.
of Brookline, 7 Mass. App. Ct. 110, 115 (1979).
Among other requirements, prior to promulgating a
regulation (as defined by the APA), a State agency must "give
notice and afford interested persons an opportunity to present
data, views, or arguments." G. L. c. 30A, § 3. The notice and
comment period provides an "opportunity for 'input' and debate
by the persons affected, and deliberate resolution of issues."
Massachusetts Gen. Hosp. v. Rate Setting Comm'n, 371 Mass. 705,
707 (1977).
The commissioner contends that the policy is not subject to
the APA because it does not fall within the APA's definition of
a regulation. Although we accord substantial deference to an
agency's interpretation of its own regulations, Northbridge, 394
Mass. at 74, we do not defer to its interpretation of the APA.
Under the APA, a regulation "includes the whole or any part
of every rule, regulation, standard or other requirement of
general application and future effect, including the amendment
8 The purpose of the Massachusetts Administrative Procedure
Act (APA) is similar to that of the comparable Federal statute.
Milligan v. Board of Registration in Pharmacy, 348 Mass. 491,
500 (1965).
9
or repeal thereof, adopted by an agency to implement or
interpret the law enforced or administered by it." G. L.
c. 30A, § 1 (5). Given the purpose of the APA, we interpret its
definition of regulation broadly. See Commonwealth v. Trumble,
396 Mass. 81, 88 (1985), citing Curran & Sacks, supra at 77.
Nevertheless, the definition excludes "regulations concerning
only the internal management . . . of the . . . agency, and not
substantially affecting the rights of or the procedures
available to the public or that portion of the public affected
by the agency's activities." G. L. c. 30A, § 1 (5) (b). Upon
review, we conclude that the policy is not exempt from APA
requirements as it is not one that concerns internal management
alone, and, at a minimum, it substantially affects the
procedures available to visitors to correctional facilities.
Simply put, the introduction of the new policy
substantially affected the procedures available to the public
because, prior to the implementation of the policy, visitors to
correctional facilities were not subject to dog sniff searches,
but now they are. This change could have a potentially
significant impact on the visiting public's experience,
including increased wait times, increased anxiety due to a fear
of dogs or of false positives, and concerns in connection with
allergies. Compare Trumble, 396 Mass. at 89 (policy not subject
to APA where it concerned how State police should conduct
10
roadblocks already taking place). The fact that the department
publicized the new policy by way of a coordinated multimedia
campaign well before the policy's planned implementation date is
a strong indicator that the department was well aware that
implementing canine searches would be of substantial concern to
those affected.9
Given the department's efforts to publicize the policy, the
commissioner cannot credibly argue that the policy concerns only
internal management issues. Rules or regulations that concern
"only the internal management" of an agency are those that
concern the organizational structure of that agency, or those
that are directed toward agency employees, instructing them on
how they should perform their duties. See Trumble, 396 Mass. at
89 (State police document detailing how State troopers should
conduct roadblocks considered to be for internal management
purposes and not subject to APA). Clearly the department
intended to, and did, broadcast information about the new policy
to the public. Indeed, it was the publication of the
9 In addition to the video recording that the department
showed in correctional facility lobbies and uploaded to the
Internet, the fact sheet that the department featured on its Web
site, and the notice that the department posted in its
facilities announcing the policy to the public, the commissioner
wrote a letter about the policy to governmental officials and
distributed written explanations to department staff and
inmates.
11
department's planned implementation of the policy that prompted
the instant action.
The commissioner argues additionally that the department's
policy is "intend[ed] to fill in the details or clear up an
ambiguity" of the regulation governing searches of visitors,
rather than to initiate a material change, and that thus the
policy is not subject to the APA. Arthurs v. Board of
Registration in Med., 383 Mass. 299, 313 n.26 (1981), quoting
Massachusetts Gen. Hosp., 371 Mass. at 707 ("Agencies 'intending
to fill in the details or clear up an ambiguity of an
established policy' may issue interpretation or informational
pronouncements without going through the procedures required for
the promulgation of a regulation"). We are not persuaded. An
agency's interpretation of its own regulations may trigger the
APA if that interpretation leads to a rule or policy that meets
the APA's definition of a regulation. See, e.g., Electronic
Privacy Info. Ctr. v. United States Dep't of Homeland Sec., 653
F.3d 1, 7 (D.C. Cir. 2011) ("the purpose of the APA would be
disserved if an agency with a broad statutory command . . .
could avoid notice-and-comment rulemaking simply by . . .
invoking its power to interpret that statute and regulation in
12
binding the public to a strict and specific set of
obligations").10
For the foregoing reasons we conclude that, at a minimum,
the policy "substantially affect[s] . . . the procedures
available to the public or that portion of the public affected
by the agency's activities" such that the policy is subject to
the APA.11 G. L. c. 30A, § 1 (5) (b). See Electronic Privacy
Info. Ctr., 653 F.3d at 6 (use of advanced imaging technology
rather than magnetometers at airports was subject to Federal APA
as it "substantively affect[ed] the public to a degree
sufficient to implicate the policy interests animating notice-
and-comment rulemaking").
3. Conclusion. The case is remanded to the Superior Court
for entry of a judgment declaring that the department was
required to, but did not, meet the requirements of the APA when
it adopted this regulation, but that such a regulation, if
10The Federal APA has a similar definition of regulation
and similar exceptions thereto. See 5 U.S.C. §§ 551(4), 553(b).
The Federal jurisprudence interpreting these provisions is
similar, but not identical, to our jurisprudence. Compare
Massachusetts Gen. Hosp. v. Rate Setting Comm'n, 371 Mass. 705,
711-712 (1977), and Commonwealth v. Trumble, 396 Mass. 81, 88-90
(1985), with Electronic Privacy Info. Ctr. v. United States
Dep't of Homeland Sec., 653 F.3d 1, 5-7 (D.C. Cir. 2011).
11Because we conclude that the policy substantially affects
the procedures available to the visiting public, we need not
reach the question whether it also substantially affects the
rights of the visiting public.
13
properly adopted in conformance with the APA, would not conflict
with existing department regulations. Entry of the judgment
shall be stayed for 180 days to permit the department to take
such action as it may deem appropriate in light of this opinion,
including, if it wishes, adopting the regulation anew in
conformance with the APA. In light of the security concerns and
risks involved, the department may continue to enforce the
regulation in the interim. See Electronic Privacy Info. Ctr.,
653 F.3d at 11.
So ordered.