Kewley v. Department of Elementary and Secondary Education

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13-P-833 Appeals Court
BARBARA KEWLEY vs. DEPARTMENT OF ELEMENTARY AND SECONDARY
EDUCATION & others. 1
No. 13-P-833.
Suffolk. December 11, 2013. - August 22, 2014.
Present: Green, Sikora, & Milkey, JJ.
License. Administrative Law, Agency, Judicial review, Agency's
interpretation of statute. School and School Committee,
Professional teacher status, Appointment of personnel.
School and School District. Constitutional Law, Police
power. Due Process of Law, License, Retroactive
application of statute, Substantive rights. Statute,
Retroactive application, Construction. Practice, Civil,
Review of administrative action, Action in nature of
mandamus.
Civil action commenced in the Superior Court Department on
August 6, 2009.
The case was heard by Heidi E. Brieger, J., on motions for
summary judgment.
1
Board of Registration in Speech-Language Pathology and
Audiology, and Wachusett Regional School Committee.
2
Daniel O'Connor (Laura Elkayam with him) for the plaintiff.
John M. Stephan, Assistant Attorney General, for the
Department of Elementary & Secondary Education.
Thomas A. Mullen for the Wachusett Regional School
Committee.
SIKORA, J. In 2009 the plaintiff, Barbara Kewley, brought
suit in Superior Court against three governmental defendants:
the Department of Elementary and Secondary Education (DESE); the
Board of Registration in Speech-Language Pathology and Audiology
(board); and the Wachusett Regional School Committee (school
committee) (collectively, defendants). She sought a declaratory
judgment of her eligibility to practice speech and language
therapy in public schools under the authority of her licensure
from the DESE and without licensure from the board, and an
affirmative injunction compelling the school committee to grant
her a teacher's contract as a speech therapist. The defendants
contested those entitlements. At the conclusion of discovery,
the parties composed a statement of agreed material facts and
submitted cross motions for summary judgment. By memorandum of
decision and a conforming order, a judge of the Superior Court
granted full summary judgment in favor of all defendants.
Kewley has appealed. For the following reasons, we now affirm.
Background. 1. Early biography. In 1981 Kewley earned a
bachelor of science degree in the field of speech, language, and
hearing disorders. Also in 1981, she earned a license from the
3
Department of Education certifying her as an "educator" in "all
levels" of "speech," "language," and "hearing disorders" (DESE
license). The life of the license originally was indefinite.
The Legislature subsequently renamed the Department of Education
as DESE. Pursuant to the Education Reform Act of 1993, DESE has
required renewal of licensure at five-year intervals. G. L.
c. 71, § 38G. Kewley has continuously maintained her DESE
license.
During the school year of 1981-1982, Kewley worked for the
Wachusett Regional School District (Wachusett) 2 as a speech
assistant providing speech and language services to its public
school children. During the 1982-1983 academic year, she
remained with Wachusett at the higher position of speech
therapist performing similar services and overseeing an aide.
In September of 1983, she resigned from that position and
relocated to New Hampshire. She later returned to
Massachusetts, and in 1991 sought reemployment with Wachusett.
2. Legislation. Meanwhile by St. 1982, c. 666, the
Legislature on January 6, 1983, introduced a system for "the
licensing of persons engaged in the practice of speech-language
pathology and audiology" (act), effective immediately. The
legislation created the board, with authority to set and to
2
Wachusett administers the public schools in the towns of
Holden, Paxton, Princeton, Rutland, and Sterling.
4
enforce standards for professional qualification, see G. L.
c. 13, §§ 85-87, and G. L. c. 112, § 139; and to exercise the
power of licensure, G. L. c. 112, § 140.
The act itself prescribed, among other requirements for a
license applicant, (1) a bachelor's degree and a master's degree
in the area of speech-language pathology and audiology from a
certified institution; (2) completion of a period of supervised
professional practice; and (3) passage of an examination
approved by the board. G. L. c. 112, § 144. The act mandated
that "[a]ll persons" then "actively engaged in the practice of
speech-language pathology and audiology in the commonwealth
shall apply for a license" from the board within one year from
its effective date. St. 1982, c. 666, § 4. The act prohibited
any person to "hold himself out as a speech-language pathologist
or practice speech-language pathology" 3 without licensure by the
board. G. L. c. 112, § 146, inserted by St. 1982, c. 666, § 2.
The act created two exemptions from these general
requirements. One was a so-called "safe harbor" provision
excepting from the board licensure requirements "the activities
and services" of four classes of individuals: (1) "a qualified
person licensed in the commonwealth under any other law . . .
engaging in the profession or business for which [s]he is
3
We interpret the term "speech-language pathology" as
equivalent to "speech-language therapy" and "speech therapy" for
purposes of this case.
5
licensed, including activities and services by a physician
licensed to practice medicine and surgery and by a person
employed by and under the direct supervision of such physician";
(2) persons engaged in the "specialty of hearing aid fitting and
sales" and charging no separate fees for hearing testing or
interpretation of such tests; (3) teachers of esophageal speech,
certified industrial audiometric technicians or audiometric
screening technicians engaged in no other practice of speech-
language pathology or audiology; and (4) persons participating
in the prerequisite activities (degree work, practical training
experience, or examination performance) for board licensure
eligibility. G. L. c. 112, § 145(1)-(4), inserted by St. 1982,
c. 666, § 2.
The other exemption authorized an alternate or
"grandfathering" pathway to licensure for applicants "actively
engaged in the practice" of speech-language pathology and
audiology in Massachusetts, "upon proof of professional practice
satisfactory to the board." St. 1982, c. 666, § 3. Those
individuals would have to apply within a one-year limit set for
all active practitioners. St. 1982, c. 666, § 4.
In April of 1986, the Legislature added a final
grandfathering provision. Any person possessing licensure for
the practice of speech-language pathology or audiology from the
DESE who had applied to the board for licensure on or before
6
August 1, 1985, would receive a waiver of the master's degree
requirement so long as he or she had engaged actively in
practice in Massachusetts for a period of one continuous year
between January 7, 1983 (the date of the original statutory
effect), and June 30, 1985. St. 1986, c. 19, § 1.
3. Later biography. When Kewley sought reemployment at
Wachusett in 1991, its director of special education advised her
of her lack of board licensure. By correspondence in August of
1992, the board informed her that she did not then qualify for
any statutory exemption or waiver of its eligibility
requirements. Nonetheless she did work for Wachusett as a
speech therapist during 1992 and into 1993, and again from early
1996 through 1999. 4
Since 2000, Wachusett has defined Kewley's position as
"speech assistant" and has withdrawn her from certain functions
usually performed by a speech therapist, including supervision
of an assistant, formal testing of students, conduct of student
evaluations, determination of special needs and of dismissal
from special education services, and formal consultation with
parents and staff. During that period, Wachusett has paid
Kewley as a nonunion employee at an hourly rate. It has
4
From mid-1993 to mid-1995, Kewley resided in New York
State as a result of her husband's employment there.
7
withheld a contractual salaried arrangement typically extended
to its speech therapists.
From 2005 through 2007, Kewley sought licensure from the
board. It denied the application for lack of a qualifying
master's degree and for failure to pursue the alternate pathway
of equivalent competence within the first year of the board's
existence. 5 Since 2000, Wachusett has required its speech
therapists to hold licenses from both DESE and the board.
Analysis. On appeal Kewley maintains that the safe harbor
provision of the 1983 legislation provides her with licensure to
practice speech therapy in public school systems under authority
of her DESE certification, that a contrary interpretation of the
statute retroactively deprives her of an occupational interest
protected by due process principles, and that her qualification
as a speech therapist entitles her to an employment contract
from Wachusett.
1. Standard of review. From the same record viewed by the
motion judge, we review a grant of summary judgment de novo.
Miller v. Cotter, 448 Mass. 671, 676 (2007). In an appeal
resulting from cross motions, the court examines the record in
the light most favorable to the losing party. See, e.g.,
DiLiddo v. Oxford St. Realty, Inc., 450 Mass. 66, 70 (2007);
5
The record indicates that the board has granted Kewley a
lesser license as a "speech-language pathology assistant."
8
McLaughlin v. Berkshire Life Ins. Co. of America, 82 Mass. App.
Ct. 351, 353-354 (2012). We may consider all grounds visible in
the record and supportive of affirmance, even though the parties
and the motion judge may not have relied upon them. See Augat,
Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991); GTE
Prod. Corp. v. Stewart, 421 Mass. 22, 36 (1995). Issues of law,
such as statutory construction and the application of
constitutional standards, are especially suited for summary
disposition and de novo review. See Atlanticare Med. Center v.
Commission of the Div. of Med. Assistance, 439 Mass. 1, 6
(2003); Norfolk & Dedham Mut. Fire Ins. Co. v. Morrison, 456
Mass. 463, 467 (2010).
2. Statutory construction. a. Safe harbor provision.
Kewley contends that the language of the safe harbor provision
preserves her DESE license as authority for continued practice
as a speech therapist in the public schools. She relies
specifically upon the proviso that the newly created board
"shall not prohibit the activities and services of . . . a
qualified person licensed . . . under any other law from
engaging in the profession or business for which he is
licensed." G. L. c. 112, § 145. She reasons that her
preexisting DESE license to practice speech therapy in public
schools comprises such a protected profession. By literal
analysis of the legislative scheme, the motion judge rejected
9
that contention. Both the letter and the apparent purpose of
the legislation support the judge's conclusion and the
consistent position of the board. 6
Literal inspection of the safe harbor provision supports
the narrower view of its exemption. As examples of excepted
"activities and services," the Legislature enumerated (1)
physicians providing therapy adjunct to their practice already
regulated by a separate professional board; (2) persons selling
and fitting hearing aids so long as they made no charge for the
activity, an evident characteristic of the incidental and
limited nature of the permitted activity; and (3) esophageal
speech teachers and certified audiometric technicians for whom
therapeutic services, again, would be subordinate to their
primary work. As both the board and the school committee point
out, those activities share a nature only incidentally
overlapping with the delivery of speech therapy.
By contrast, the provision of services to public school
children pursuant to the DESE license consists primarily of
therapeutic activity, and not merely the secondary provision of
therapeutic service. The ensuing itemized exceptions of the
safe harbor provision support the motion judge's view of the
6
As we discuss infra, the board by its communication with
Kewley in 1992 and 2007 maintained the view that the legislation
limited her means of obtaining a license to the lost
grandfathering opportunities, or full compliance with the 1983
requirements.
10
opening term "qualified person" to mean a person engaged in the
provision of speech therapy as conduct incidental or subordinate
to a separate service. See Boston Assn. of Sch. Administrators
& Supervisors v. Boston Retirement Bd., 383 Mass. 336, 341
(1981) (general statutory term will absorb character of its more
specific associated terms under canon of noscitur a sociis).
b. Grandfather provision. The two grandfather provisions
furnish additional literal support for the narrower range of the
safe harbor language. The 1983 provision for alternate
licensure by independent demonstration of competence
"satisfactory to the board" would afford DESE licensees a
separate pathway to continued practice. St. 1982, c. 666, § 3.
More telling, the 1986 waiver of the master's degree requirement
for DESE licensees practicing for one continuous year during the
first thirty months of the board's existence serves the same
purpose. Neither accommodation, especially the 1986 measure,
would be necessary for DESE licensees if they already enjoyed
anchorage in the safe harbor provision.
The inclusion of DESE licensure in the safe harbor would
render the entire 1986 act, in particular, redundant. That
interpretation would violate the canon forbidding the treatment
of even words and phrases of legislation as superfluous. See,
e.g., Negron v. Gordon, 373 Mass. 199, 205 (1977), and cases
cited; Casa Loma, Inc. v. Alcoholic Bevs. Control Commn., 377
11
Mass. 231, 234 (1979); Commonwealth v. Millican, 449 Mass. 298,
300 (2007). Additionally the targeted particularity of the 1986
act is more persuasive than the generality of the 1983 safe
harbor provision. If two statutes address the same subject, the
application of a later and more specific one will resolve any
arguable ambiguity or inconsistency between the two. See, e.g.,
Clancy v. Wallace, 288 Mass. 557, 564 (1934); Doe v. Attorney
Gen., 425 Mass. 210, 215 (1997); Silva v. Rent-A-Center, Inc.,
454 Mass. 667, 671 (2009).
c. Legislative purpose. If we widen the lens to examine
the over-all design and purpose of the licensure legislation,
the literal interpretation gains reinforcement. See, e.g.,
Roberts v. Enterprise Rent-A-Car Co. of Boston, 438 Mass. 187,
194 (2002) (interpretation should produce "internal
consistency"); Boston Police Patrolmen's Assn. v. Police Dept.
of Boston, 446 Mass. 46, 50 (2006) (interpretation should assess
entire structure and purpose of legislation). The 1983 adoption
purposefully creates a comprehensive licensing system. It
establishes an agency dedicated to regulation of the practice of
an emerging health service; it directs that "[a]ll persons"
engaged in its practice must apply for licensure from that
agency; and it forbids any person to "hold himself out" as a
practitioner without the board's certification. As the board
points out, the remedial exercise of the police power for a
12
public health purpose usually receives liberal interpretation.
See Kvitka v. Board of Registration in Med., 407 Mass. 140, 143,
cert. denied, 498 U.S. 823 (1990). The inferable purpose of
such public health legislation is the assurance of professional
competence by a central agency's administration of coherent,
uniform standards. The operation of multiple licensing sources
and standards would undermine the objective of clear and
reliable qualifications. 7
d. Agency view. Finally, the views of an agency charged
with the administration of a statutory scheme are entitled to
respect so long as they are reasonable, Boston Retirement Bd. v.
Contributory Retirement Appeal Bd., 441 Mass. 78, 82 (2004),
especially if they arose early in the life of the statute and
have remained consistent, see Board of Educ. v. Assessor of
Worcester, 368 Mass. 511, 515-516 (1975); Taylor v. Housing
Appeals Comm., 451 Mass. 149, 154 (2008). In this instance, the
board has steadily interpreted the statutes to limit Kewley's
eligibility to the enumerated prerequisites (educational
degrees, practice, examination) or timely fulfillment of the
grandfathering options. It maintained those positions by
7
We have considered Kewley's proposal that the 1986 waiver
aims to assist only those DESE licensees wishing to expand their
practice beyond the confines of public school services and
leaves in place the remaining teachers. However, that view
presumes existing protection from the safe harbor provision and
receives no support from the letter and policy of either the
1983 or 1986 legislation.
13
correspondence with her in August of 1992 and by denial of an
application in 2007.
3. Due process claims. Kewley contends that the board's
enforcement of the 1983 licensure requirements results in a de
facto revocation of her DESE license in violation of due process
standards under both the Fourteenth Amendment of the Federal
Constitution and art. 12 of the Massachusetts Declaration of
Rights.
As a matter of substantive due process principles under
both constitutions, an occupational license constitutes a
protected interest. See Blue Hills Cemetery, Inc. v. Board of
Registration in Embalming & Funeral Directing, 379 Mass. 368,
372 (1979), citing McMurdo v. Getter, 298 Mass. 363, 365-366
(1937) ("the right to engage in any lawful occupation is an
aspect of the liberty and property interests protected by the
substantive reach of the due process clause of the Fourteenth
Amendment to the United States Constitution and analogous
provisions of our State Constitution"); Walden v. Board of
Registration in Nursing, 395 Mass. 263, 271 (1985) ("right to
work as a nurse is protected against deprivation without due
process of law"), and cases cited. See, e.g., Matter of Kenney,
399 Mass. 431, 436 (1987) (attorney's license); Goldstein v.
Board of Registration of Chiropractors, 426 Mass. 606, 613
(1998) (chiropractor's license); Lindsay v. Department of Social
14
Servs., 439 Mass. 789, 803 n.12 (2003) (day care provider's
license). Substantive due process requires the government to
establish a rational basis for the deprivation or the diminution
of such licensure. See Williamson v. Lee Optical of Okla.,
Inc., 348 U.S. 483, 488 (1955); Walden v. Board of Registration
in Nursing, supra. The governmental action must reasonably
serve a legitimate purpose of the public health, safety, or
welfare. Leigh v. Board of Registration in Nursing, 395 Mass.
670, 683 (1985), S.C., 399 Mass. 558 (1987), and cases cited.
In cases of retroactive regulation of vested property
interests, substantive due process will hinge on the balance of
three considerations: the nature of the public interest served
by the regulation; the nature of the right or protected interest
divested or diminished by the regulation; and the extent or
scope of the regulatory effect or impact. See American Mfrs.
Mut. Ins. Co. v. Commissioner of Ins., 374 Mass. 181, 191
(1978); Leibovich v. Antonellis, 410 Mass. 568, 577 (1991), and
cases cited; Carleton v. Framingham, 418 Mass. 623, 631 (1994).
See also Hochman, The Supreme Court and the Constitutionality of
Retroactive Legislation, 73 Harv. L. Rev. 692, 697 (1960).
By this calculus, the 1983 legislation displaced Kewley's
existing license but did not do so unconstitutionally. The
purpose of the new licensure system lay well within the police
power: to assure competence or to elevate competence in the
15
practice of a public health care profession. The affected
interest was substantial: an earned permit to pursue a
livelihood of service and compensation.
The decisive third consideration is the extent of the
Legislative displacement. The scheme here included critical,
equitable accommodations: the original 1983 grandfathering
alternative pathway to licensure by separate proof of
competence; and the 1986 waiver of the master's degree
requirement. Both were available to Kewley and similarly
situated DESE licensees. She was practicing at Wachusett from
January through August of 1983, an eight-month interim during
which the alternate pathway was open. She was residing in
Massachusetts and the neighboring state of New Hampshire through
the thirty-month period from January of 1983, through June of
1985, during which the 1986 act allowed DESE licensees to
achieve a waiver of the master's degree requirement by means of
one year of continuous practice. She did not take advantage of
either alternative. Those grandfathering mechanisms of the
legislation prevented unreasonable retroactivity and therefore
unconstitutional deprivation of a vested professional licensure.
4. School committee's standards for contractual
employment. The school committee presents an additional
distinctive and valid defense. The provision authorizing
licensure by DESE, G. L. c. 71, § 38G, as appearing in St. 1983,
16
c. 495, § 26, states in relevant part, "No person shall be
eligible for employment as a teacher . . . unless [s]he has been
granted by the commissioner a . . . standard certificate with
respect to the type of position for which [s]he seeks
employment; provided, however, that nothing herein shall be
construed to prevent a school committee from prescribing
additional qualifications." It is undisputed that since
approximately 2000 Wachusett has required teachers of speech-
language therapy to possess both the DESE license and the board
license.
Wachusett's exercise of that lawful discretionary authority
(by the school committee or administrators) is immune from any
requested affirmative injunctive order compelling the issuance
of a contract to Kewley. A Massachusetts court may not
"mandamus" discretionary governmental action. See McLean v.
Mayor of Holyoke, 216 Mass. 62, 64-65 (1913); Berman v. Board of
Registration in Med., 355 Mass. 358, 360 (1969); Urban Trans.,
Inc. v. Mayor of Boston, 373 Mass. 693, 698 (1977), and cases
cited.
Judgment affirmed.