DIRECTV, LLC, et al. v. Department of Revenue (Lawyers Weekly No. 10-024-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11658 DIRECTV, LLC, & another[1] vs. DEPARTMENT OF REVENUE. Suffolk. November 4, 2014. – February 18, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Taxation, Excise, Broadcasting company. Interstate Commerce. Constitutional Law, Interstate commerce. Civil action commenced in the Superior Court Department on January 26, 2010. The case was heard by Thomas P. Billings, J., on motions for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. E. Joshua Rosenkranz, of New York (Jeremy N. Kudon & Nicholas G. Green, of New York, Eric A. Shumsky, of the District of Columbia, & Kelley A. Jordan-Price with him) for the plaintiffs. Pierce O. Cray, Assistant Attorney General (Kirk G. Hanson, Assistant Attorney General, with him) for the defendant. The following submitted briefs for amici curiae: Eric S. Tresh, Amelia Toy Rudolph, & Zachary T. Atkins, of Georgia, & Nicholas M. O’Donnell & David Nagle for New England Cable & Telecommunications Association. John Bergmayer, of the District of Columbia, & Karen A. Pickett for Public Knowledge. Kristen S. Scammon for Satellite Broadcasting & Communications Association. John A. Hinman, of California, & Allison M. O’Neil & Jamie C. Notman for National Association of Wine Retailers. Sheldon H. Laskin & Lila D. Disque, of the District of Columbia, for Multistate Tax Commission. David Parkhurst, of the District of Columbia, & David Hadas for National Governors Association. LENK, J. General Laws c. 64M, § 2, imposes a five per cent excise tax on video programming delivered by direct broadcast satellite (tax). The plaintiffs are two companies that provide services subject to the tax (satellite companies). They brought a complaint for declaratory and injunctive relief in the Superior Court, alleging that the tax violates the commerce clause of the United States Constitution.[2] The satellite companies contend that the tax discriminates against interstate commerce, both in its effect and in its purpose, by disfavoring them as compared with those companies that provide video programming via cable (cable companies). The satellite and cable companies that operate in Massachusetts are all incorporated and headquartered in other States; the satellite companies argue, however, that the cable companies represent in-State interests inasmuch as their in-State commercial operations are substantially greater than those of the satellite companies. A Superior Court judge granted summary judgment […]
Kelley, et al. v. Boston Fire Department, et al. (Lawyers Weekly No. 11-150-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1701 Appeals Court JOSEPH KELLEY & others[1] vs. BOSTON FIRE DEPARTMENT & another.[2] No. 13-P-1701. November 18, 2014. Fire Fighter, Appointment. Municipal Corporations, Fire department. Boston. Civil Service, Appointment. Practice, Civil, Review of interlocutory action. Four fire lieutenants employed by the city of Boston (city) fire department filed an appeal with the Civil Service Commission (commission) pursuant to G. L. c. 31, § 2(b) and (c), claiming to be aggrieved by the practice of appointing out-of-grade acting captains without following the provisions of the civil service laws. The commission found that the city violated G. L. c. 31, § 31, by appointing acting captains on an emergency basis without initially notifying the Division of Human Resources (HRD), and without obtaining the consent of HRD to extend the emergency appointments after the initial thirty days. The commission ordered the city to cease appointing acting captains in this manner, and the city ended the practice effective July 1, 2009.[3] However, the commission ultimately dismissed the plaintiffs’ appeal, concluding that compliance with § 31 procedures was “ministerial,” and that the plaintiffs had failed to demonstrate that the appointments did not meet the statutory criteria set forth in G. L. c. 31, § 31.[4] The lieutenants appealed the commission’s decision pursuant to G. L. c. 30A, § 14. A judge of the Superior Court vacated the commission’s decision, concluding as a matter of law that the statutory notice and consent requirements were not ministerial, and that the burden of proving that the § 31 criteria were met rested with the city, not the plaintiffs. The matter was remanded to the commission for a new evidentiary hearing to allow the plaintiffs to offer proof of the specific appointments made in violation of § 31 that “they should have received because of their position on the promotion list.” The city has appealed. No appeal was filed by the commission. “As a general rule, an aggrieved litigant cannnot as a matter of right pursue an immediate appeal from an interlocutory order unless a statute or rule authorizes it.” Elles v. Zoning Bd. of Appeals of Quincy, 450 Mass. 671, 673-674 (2008). This general rule applies with equal force to appeals by litigants who appear before administrative agencies. “[A]n order of remand to an administrative agency is interlocutory and may not be appealed from by the parties to the underlying action.” Chief Justice for Admin. & Mgmt. of […]
J.W. v. Department of Developmental Services, et al. (Lawyers Weekly No. 11-120-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12-P-1760 Appeals Court J.W.[1] vs. DEPARTMENT OF DEVELOPMENTAL SERVICES & another.[2],[3] No. 12-P-1760. Middlesex. June 2, 2014. – September 24, 2014. Present: Green, Trainor, & Grainger, JJ. Division of Administrative Law Appeals. Department of Developmental Services. Intellectually Disabled Person. Administrative Law, Judicial review. Statute, Construction. Civil action commenced in the Superior Court Department on September 15, 2011. The case was heard by Douglas H. Wilkins, J., on a motion for judgment on the pleadings. Timothy J. Casey, Assistant Attorney General, for the defendants. Stephen M. Sheehy for the plaintiff. TRAINOR, J. The Department of Developmental Services (DDS) appeals from a Superior Court judgment that vacated the decision of the Division of Administrative Law Appeals (DALA) approving the transfer of J.W. under the provisions of G. L. c. 123B, § 3.[4] J.W. is a profoundly mentally disabled, visually impaired, and nonverbal individual. He has little or no concept of personal safety, and therefore, while he can walk independently, he cannot negotiate stairs alone. He has been a resident at the Fernald Developmental Center (FDC or Fernald) for nearly his entire life. The FDC is in the process of closing, however, and the policy decision to transfer its residents, all intellectually disabled individuals, to other appropriate care facilities is no longer subject to review by the Federal courts and would require a change in State law to prevent.[5] In a comprehensive and balanced decision, an administrative magistrate of the DALA approved the plan proposed by the DDS to transfer J.W. from his residence at Malone Park 23 at the FDC to Heffron Hall A, apartment 4 at the Wrentham Developmental Center (WDC). See G. L. c. 123B, § 3. A judge of the Superior Court, on review, concluded that “[i]f one accepts the Magistrate’s legal rulings — essentially limiting inquiry to a choice between Fernald and Heffron Hall — then there is no lack of substantial evidence for the Decision. Nor (on the same assumption) does the Court find any error in ‘the logic of the analysis that the hearing officer articulated in [his] decision.’ Covell v. Department of Developmental Servs., 439 Mass. 766, 782 (2003).” Despite that, the judge concluded that the magistrate erred in his legal ruling by limiting his consideration of J.W.’s best interest to either the existing placement at Fernald or the single alternative proposed by […]
Categories: News Tags: 1112014, department, Developmental, J.W., Lawyers, Services, Weekly
Massachusetts Electric Company, et al. v. Department of Public Utilities (Lawyers Weekly No. 10-153-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11526 SJC-11527 SJC-11528 MASSACHUSETTS ELECTRIC COMPANY[1] & another[2] vs. DEPARTMENT OF PUBLIC UTILITIES. NSTAR ELECTRIC COMPANY vs. DEPARTMENT OF PUBLIC UTILITIES. WESTERN MASSACHUSETTS ELECTRIC COMPANY vs. DEPARTMENT OF PUBLIC UTILITIES. Suffolk. April 7, 2014. – September 4, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[3] Electric Company. Public Utilities, Electric company. Department of Public Utilities. Penalty. Administrative Law, Substantial evidence, Findings. Civil actions commenced in the Supreme Judicial Court for the county of Suffolk on December 28, 2012. The cases were reported by Spina, J. Robert J. Keegan (Cheryl M. Kimball with him) for NSTAR Electric Company & another. David S. Rosenzweig (Erika J. Hafner & Michael J. Koehler with him) for Massachusetts Electric Company & another. Christopher K. Barry-Smith, Assistant Attorney General, for Department of Public Utilities. GANTS, J. Three utility companies (utilities) challenge orders entered against them by the Department of Public Utilities (department) that impose monetary penalties for failing to “restore service to [their] customers in a safe and reasonably prompt manner,” in violation of 220 Code Mass. Regs. § 19.03(3) (2010), after electrical outages arising from Tropical Storm Irene (Irene) on August 28, 2011, and a snowstorm two months later on October 29 (October snowstorm). The utilities — Massachusetts Electric Company and Nantucket Electric Company, each doing business as National Grid (collectively, National Grid); NSTAR Electric Company (NSTAR); and Western Massachusetts Electric Company (WMEC) — claim on appeal that (1) the department made an error of law in failing to apply the prudence standard when assessing the utilities’ storm performances; (2) the department’s findings were not supported by substantial evidence; and (3) the department’s penalty calculations lacked the necessary subsidiary findings and constituted an abuse of discretion. We affirm in part and reverse in part. We conclude that the department applied the appropriate reasonableness standard in finding that the utilities violated their duty to restore service in a safe and reasonably prompt manner. We also conclude that the department’s over-all findings regarding National Grid and WMEC were supported by substantial evidence, as were its findings regarding the deficiencies of NSTAR’s communication with municipal officials and the general public, but that its finding that NSTAR failed timely to respond to priority two and three wires-down calls was not supported by […]
Categories: News Tags: 1015314, Company, department, Electric, Lawyers, massachusetts, Public, Utilities, Weekly
Kewley v. Department of Elementary and Secondary Education, et al. (Lawyers Weekly No. 11-099-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 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. 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 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. […]
Categories: News Tags: 1109914, department, Education, Elementary, Kewley, Lawyers, Secondary, Weekly
Nautical Tours, Inc. v. Department of Public Utilities (Lawyers Weekly No. 10-147-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11455 NAUTICAL TOURS, INC. vs. DEPARTMENT OF PUBLIC UTILITIES. August 20, 2014. Department of Public Utilities. License. Public Utilities, Sight-seeing vehicle. Carrier, Sight-seeing vehicle. Motor Vehicle, Sight-seeing vehicle. Nautical Tours, Inc. (Nautical Tours), appeals from a judgment of a single justice of this court affirming a decision of the Department of Public Utilities (department) that it did not have jurisdiction to issue the type of license needed by Nautical Tours to operate its business in the city of Boston. Nautical Tours seeks to operate amphibious motor vehicles for sightseeing and charter purposes on the streets of Cambridge and Boston and the waters of the Charles River and Boston Harbor. The parties disagree about the appropriate license needed to operate in Boston. Nautical Tours contends that it must obtain a municipal street license pursuant to G. L. c. 159A, § 1. The department ruled that Nautical Tours was required to obtain a sightseeing license, which the Boston police commissioner has the exclusive authority to issue, pursuant to St. 1931, c. 399. We agree with the department that the Legislature established two different licensing schemes. Although a municipal street license is needed to carry passengers for hire on the public ways of cities and towns in the Commonwealth under G. L. c. 159A, § 1, a sightseeing automobile operating in the city of Boston must obtain a separate sightseeing license under St. 1931, c. 399. Because we further agree with the department that it did not have jurisdiction to issue Nautical Tours a municipal street license to operate its amphibious motor vehicles in Boston, we affirm. Background. In 2010, Nautical Tours filed a petition with the department concerning its proposed operation of amphibious motor vehicles over certain public ways in Boston. Nautical Tours asked the department (1) to exercise its licensing authority to issue a municipal street license under G. L. c. 159A, § 1; and (2) to amend the certificate of public convenience and necessity that it had issued in a proceeding in 2007, under G. L. c. 159A, § 7. In its 2007 order, the department concluded that Nautical Tours had not met its burden of demonstrating that it was able to operate its proposed plan, because it could not demonstrate that it had secured adequate financing. See Deacon Transp., Inc. v. Department of Pub. Utils., 388 Mass. 390, 394 (1983). To facilitate Nautical Tour’s ability to […]
Service Employees International Union, Local 509 v. Department of Mental Health (Lawyers Weekly No. 10-138-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReportersjc.state.ma.us SJC-11544 SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 509 vs. DEPARTMENT OF MENTAL HEALTH. Suffolk. April 7, 2014. – August 15, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[1] Privatization Act. Commissioner of Mental Health. Auditor. Declaratory Relief. Practice, Civil, Declaratory proceeding, Standing, Parties, Failure to join party. Civil action commenced in the Superior Court Department on February 15, 2012. The case was heard by Merita A. Hopkins, J., on a motion for judgment on the pleadings. The Supreme Judicial Court granted an application for direct appellate review. Alfred Gordon O’Connell for the plaintiff. Jo Ann Shotwell Kaplan, Assistant Attorney General, for the defendant. Donald J. Siegel & James A.W. Shaw, for Massachusetts AFL-CIO, amicus curiae, submitted a brief. Gerald A. McDonough, for the Auditor of the Commonwealth, amicus curiae, submitted a brief. LENK, J. The plaintiff, Service Employees International Union, Local 509 (union), appeals from an order of a Superior Court judge dismissing its complaint for declaratory judgment pursuant to G. L. c. 231A, §§ 1, 2, and 5. In that complaint, the union alleged that the Department of Mental Health (DMH) violated the Massachusetts privatization statute, G. L. c. 7, §§ 52-55 (Pacheco Law), by entering into contracts with private entities to obtain services substantially similar to those performed by members of the union, but failing to comply with relevant statutory obligations. DMH filed an answer as well as a motion for judgment on the pleadings pursuant to Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974). After a hearing, the judge granted DMH’s motion, which she treated as a motion to dismiss for lack of subject matter jurisdiction under Mass. R. Civ. P. 12 (b) (1), 365 Mass. 754 (1974). The judge determined that the union lacked both direct and associational standing to seek declaratory relief and, additionally, that the union’s failure to join necessary parties constituted a separate jurisdictional bar requiring dismissal. The judge did not err in declining to consider the union’s complaint on the basis of its failure to name all necessary parties. However, because we conclude that the union has direct standing to seek a declaratory judgment under G. L. c. 231A that would invalidate the contracts at issue, we remand the case to the Superior Court for the limited purpose of allowing the union to seek leave to amend […]
Stone-Ashe v. Department of Environmental Protection, et al. (Lawyers Weekly No. 11-082-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-489 Appeals Court WENDY STONE-ASHE, trustee,[1] vs. DEPARTMENT OF ENVIRONMENTAL PROTECTION & another.[2] No. 13-P-489. Suffolk. January 14, 2014. – July 16, 2014. Present: Trainor, Graham, & Agnes, JJ. Trust, Public trust. Department of Environmental Protection. Administrative Law, Agency’s authority, Regulations. Regulation. Real Property, Littoral property, Harbors, Wharf, Restrictions. Harbors. Evidence, Expert opinion. Witness, Expert. Civil action commenced in the Superior Court Department on October 29, 2010. The case was heard by Bonnie H. MacLeod, J., on a motion for judgment on the pleadings. Richard A. Nylen, Jr., for the plaintiff. Jo Ann Shotwell Kaplan, Assistant Attorney General, for the defendants. GRAHAM, J. The plaintiff, Wendy Stone-Ashe, trustee of the Stone-Ashe Realty Trust,[3] appeals from a Superior Court judgment that affirmed a final decision of the Commissioner (commissioner) of the Department of Environmental Protection (department), which concluded that a seawall on the plaintiff’s property lies seaward of the historic high water mark and, therefore, is under the jurisdiction of the department and subject to public rights pursuant to G. L. c. 91. Substantially for the reasons stated in the decisions of the commissioner and the Superior Court judge, we affirm. Background. 1. Statutory and regulatory framework. “Under the public trust doctrine, the Commonwealth holds tidelands in trust for the use of the public for, traditionally, fishing, fowling, and navigation.” Moot v. Department of Envtl. Protection, 448 Mass. 340, 342 (2007), S.C., 456 Mass. 309 (2010). See generally Boston Waterfront Dev. Corp. v. Commonwealth, 378 Mass. 629, 631-632 (1979) (detailing history of public trust doctrine). In enacting G. L. c. 91, the Legislature delegated at least some of its authority to preserve and regulate the Commonwealth’s tidelands to the department. Moot v. Department of Envtl. Protection, supra at 347. General Laws c. 91, § 1, inserted by St. 1983, c. 589, § 21, defines “[t]idelands” as “present and former submerged lands and tidal flats lying below the mean high water mark.” “Private tidelands” are defined as “tidelands held by a private party subject to an easement of the public for the purposes of navigation and free fishing and fowling and of passing freely over and through the water.” Ibid. The department’s jurisdiction extends only to the tidelands seaward of the historic high water mark. “[B]ecause actual high and low water marks can change over time, notably pursuant to licenses to fill […]
Categories: News Tags: 1108214, department, Environmental, Lawyers, Protection, StoneAshe, Weekly
Younker v. Department of Transitional Assistance (Lawyers Weekly No. 11-067-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13‑P‑855 Appeals Court DIANE M. YOUNKER vs. DEPARTMENT OF TRANSITIONAL ASSISTANCE. No. 13‑P‑855. Suffolk. January 15, 2014. ‑ June 16, 2014. Present: Cypher, Rubin, & Hines, JJ. Anti-Discrimination Law, Age, Prima facie case. Employment, Discrimination, Demotion, Constructive discharge. Department of Transitional Assistance. Constitutional Law, Freedom of association. Practice, Civil, Summary judgment, Prima facie case. Civil action commenced in the Superior Court Department on December 31, 2010. The case was heard by Bonnie H. MacLeod, J., on a motion for summary judgment. Paul L. Nevins for the plaintiff. Kenneth Y. Lee, Assistant Attorney General, for the defendant. RUBIN, J. The plaintiff, Diane M. Younker, appeals from a summary judgment on her claims for violation of her constitutional right of association and for age discrimination under G. L. c. 151B, §§ 4(1C) & 9. We reverse in part. 1. Age discrimination. The plaintiff was employed by the Department of Transitional Assistance (DTA) for forty-two years. She was repeatedly promoted during her long tenure at the agency, rising from her initial post as a social worker to become the director of the Davis Square office in Somerville. In 2007, when the Davis Square and Revere offices were merged, she was thought sufficiently qualified to be appointed director of the newly combined office in Revere. The former director of the Revere office became her assistant director. In the spring of 2009, shortly after the appointment of Julia Kehoe as commissioner of the DTA, the plaintiff was informed in a telephone call from John Augeri, DTA assistant commissioner of field operations, that she was being demoted. The director of the Framingham office, Paul Sutliff, was made director of the Revere office, while the plaintiff would be made assistant director. Concluding that her demotion amounted to constructive termination, the plaintiff resigned the following month. At the time of the demotion, the plaintiff was seventy years old. Sutliff was fifty-three. The plaintiff stated in her affidavit, and the defendant does not dispute, that at the time of her demotion she was not told any reason for her removal from the directorship of the Revere office. She insisted upon being given notice of the demotion in writing and was sent a letter on April 7, 2009, which provided written confirmation of the reassignment but again failed to […]
Categories: News Tags: 1106714, Assistance, department, Lawyers, Transitional, Weekly, Younker
Ramzi, Inc., et al. v. Department of Public Health (Lawyers Weekly No. 11-053-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1450 Appeals Court RAMZI, INC.,[1] & others[2] vs. DEPARTMENT OF PUBLIC HEALTH. No. 12‑P‑1450. Worcester. December 6, 2013. ‑ May 28, 2014. Present: Fecteau, Sullivan, & Maldonado, JJ. Department of Public Health. Public Welfare, Food stamp benefits. Regulation. Notice. Commonwealth, Contracts. Contract, With Commonwealth. Administrative Law, Agency’s interpretation of regulation. Civil action commenced in the Superior Court Department on October 20, 2010. The case was heard by Richard T. Tucker, J., on a motion for judgment on the pleadings. John M. Goggins for the plaintiffs. Iraida J. Alvarez, Assistant Attorney General, for the defendant. SULLIVAN, J. Ramzi, Inc., doing business as North End Market, Nahed Benyamin, and Emad Benyamin (collectively, Ramzi) appeal from a judgment of the Superior Court affirming, in pertinent part, a decision of the Division of Administrative Law Appeals (DALA) upholding a determination of the Department of Public Health (department) to disqualify Ramzi as a WIC vendor for three years and to terminate Ramzi’s WIC vendor status. On appeal, Ramzi contends that the judge erred as a matter of law in affirming the DALA decision. We conclude that an amendment to the governing statute, and ensuing regulatory changes, require a remand to DALA for further consideration of so much of its decision disqualifying Ramzi for a three-year period. Accordingly, we affirm in part and reverse in part. Background. The undisputed facts are set forth in the administrative record and are summarized as follows. 1. The regulatory scheme. WIC is a federally funded supplemental food program for income-eligible women, infants, and children. The program, which is administered by the States, provides WIC checks redeemable in grocery stores, pharmacies, and farmers’ markets for approved foods. See 42 U.S.C. § 1786 (2012); 7 C.F.R. § 246.1 (2009). In the Commonwealth, WIC is administered by the department, subject to regulations promulgated by the United States Department of Agriculture (Department of Agriculture). See 42 U.S.C. § 1786(b)(12) & (f); 7 C.F.R. §§ 246.1 & 246.3(b). 2. Vendor agreements and compliance monitoring. The department’s vendor agreement incorporates pertinent regulatory requirements applicable to WIC vendors. The department and Ramzi entered into a vendor agreement, which outlines the responsibilities of a WIC vendor and potential violations and penalties for those violations, as set forth in the Federal regulations. 7 C.F.R. § 246.12(h)(1)(i) & (h)(3)(i)-(xxv). Upon entering into the vendor […]