Fitchburg Gas and Electric Light Company, et al. v. Department of Public Utilities (Lawyers Weekly No. 10-068-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑11397 FITCHBURG GAS AND ELECTRIC LIGHT COMPANY[1] & others[2] vs. DEPARTMENT OF PUBLIC UTILITIES. Suffolk. December 5, 2013. ‑ April 14, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Department of Public Utilities. Public Utilities, Electric company, Rate setting, Costs of service, Rate of return. Constitutional Law, Taking of property. Due Process of Law, Taking of property, Regulatory proceeding. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on October 17, 2012. The case was reported by Botsford, J. David S. Rosenzweig (Erika J. Hafner with him) for the plaintiffs. Pierce O. Cray, Assistant Attorney General (Rebecca Tepper with him) for the defendant. CORDY, J. This matter comes before us on a reservation and report, without decision, by a single justice of this court of an administrative appeal filed pursuant to G. L. c. 25, § 5. The petitioners, electric companies as defined by G. L. c. 164, § 1, within the jurisdiction of the Department of Public Utilities (department), appeal a final order of the department imposing on the petitioners monetary assessments for the Storm Trust Fund (assessment), pursuant to G. L. c. 25, §§ 12P, 18. In accordance with the language of the fourth sentence of G. L. c. 25, § 18, third par., the order specifically prohibited the petitioners from seeking recovery of the assessment in any rate proceeding. The petitioners claim that this prohibition on recovery, as required by the statute and imposed by the department’s order, is an unconstitutional taking in violation of art. 10 of the Massachusetts Declaration of Rights and the Fifth and Fourteenth Amendments to the United States Constitution. They seek a declaration that the recovery prohibition is unconstitutional, severance of the prohibition from the remainder of the statutory scheme, and reversal of the department’s order. The petitioners essentially assert three grounds on which the recovery prohibition constitutes a taking. First, they claim that the recovery prohibition, as it operates on the assessment, effects a per se taking without just compensation. We conclude that it does not, because a mere obligation to pay such an assessment, regardless of whether recovery is permitted or precluded, does not rise to the level of a compensable per se taking. Second, they assert that it constitutes a taking by way of a confiscatory rate because the recovery […]
Plourde v. Police Department of Lawrence (Lawyers Weekly No. 11-037-14)
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‑650 Appeals Court RONALD PLOURDE vs. POLICE DEPARTMENT OF LAWRENCE. No. 13‑P‑650. Essex. January 7, 2014. ‑ April 9, 2014. Present: Katzmann, Fecteau, & Milkey, JJ. Massachusetts Wage Act. Governmental Immunity. Public Employment, Collective bargaining, Compensatory time. Employment. Contract, Employment, Collective bargaining contract. Labor, Collective bargaining, Failure to pay wages. Police, Collective bargaining, Compensation, Municipality’s liability. Municipal Corporations, Police, Governmental immunity, Special act. Civil action commenced in the Superior Court Department on September 26, 2011. The case was heard by Robert A. Cornetta, J., on motions for summary judgment, and a motion for reconsideration was considered by him. Corinne Hood Greene for the plaintiff. Charles D. Boddy, Jr., City Attorney, for the defendant. Harold Lichten, for Professional Firefighters of Massachusetts, amicus curiae, submitted a brief. FECTEAU, J. The plaintiff, Ronald Plourde, a former captain of the Lawrence police department (department or defendant), appeals from the denial of his motion for summary judgment and the allowance of the department’s motion for summary judgment, by a judge in the Superior Court. The plaintiff had sued the city of Lawrence for the value of compensatory time that he had earned and accrued prior to being injured on duty in 2006. He retired due to his disability in 2010 without ever having returned to active duty. In granting the defendant’s motion for summary judgment, the motion judge dismissed the plaintiff’s claims for breach of contract, breach of good faith and fair dealing, and a claim under G. L. c. 149, § 148, and G. L. c. 151 (collectively, Wage Act). Following the allowance of summary judgment in favor of the defendant, the plaintiff filed a motion for reconsideration, which the judge denied, confirming his previous ruling that the plaintiff’s Wage Act claim was barred by sovereign immunity and the provisions of St. 1990, c. 41 (Lawrence Act), which established financial conditions for Lawrence. Because sovereign immunity is inapplicable to this case and because the Lawrence Act cannot be read to negate the defendant’s obligations under the Wage Act, we reverse. 1. Background. The summary judgment records contain the following undisputed facts. The plaintiff was employed by the defendant as a police officer from 1985 through 2010. The plaintiff was promoted to captain in 2002 and remained in that position until he retired in […]
Wassenar v. Department of Environmental Protection (Lawyers Weekly No. 11-022-14)
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‑1671 Appeals Court HAROLD B. WASSENAR vs. DEPARTMENT OF ENVIRONMENTAL PROTECTION. No. 12‑P‑1671. Worcester. September 17, 2013. ‑ March 5, 2014. Present: Hanlon, Brown, & Sullivan, JJ. Department of Environmental Protection. Penalty. Escrow. Practice, Civil, Dismissal of appeal, Waiver. Waiver. Civil action commenced in the Superior Court Department on January 20, 2011. A motion to dismiss was heard by Richard T. Tucker, J. Henry J. Lane for the plaintiff. Maryanne Reynolds, Assistant Attorney General, for the defendant. HANLON, J. The Department of Environmental Protection (DEP) issued a final decision against Harold B. Wassenar, requiring him to pay a civil administrative penalty of $ 80,586. Wassenar sought judicial review in the Superior Court under G. L. c. 30A, § 14. As a condition precedent to that court’s jurisdiction to review the administrative proceeding, Wassenar was required to post the full amount of the assessed penalty in an escrow account, unless he was able to demonstrate either an inability to pay the assessment or the presence of a substantial question of law. See G. L. c. 21A, § 16, inserted by St. 1985, c. 95, § 1. After a hearing, a judge of the Superior Court determined that Wassenar had satisfied neither condition. When Wassenar did not place the assessment amount in an escrow account, a second judge dismissed his complaint. Wassenar now appeals, arguing that the motion judge erred both in the determination of his ability to pay, and in the determination that there was no substantial issue of law. We affirm. Background. On November 6, 2007, the DEP assessed Wassenar an $ 80,586 civil administrative penalty for violations involving hazardous and solid waste storage on property he owned at 290 Millville Road in Uxbridge. Wassenar, contesting the penalty, submitted to the DEP an affidavit, arguing that the stored items were “consistent with the use of [his] premises as a home” and, in any event, were being stored there only temporarily. John Kronopolus, a DEP engineer, submitted a rebuttal affidavit challenging most of the assertions made in Wassenar’s affidavit. After an adjudicatory appeal hearing, the DEP issued a final penalty order; the order was affirmed after reconsideration. Wassenar then filed a complaint in the Superior Court pursuant to G. L. c. 30A, § 14, seeking judicial review of the DEP’s final order, claiming that the order was arbitrary […]
Categories: News Tags: 1102214, department, Environmental, Lawyers, Protection, Wassenar, Weekly
G.R. v. Department of Developmental Services, et al. (Lawyers Weekly No. 11-011-14)
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‑0951 Appeals Court G.R.[1] vs. DEPARTMENT OF DEVELOPMENTAL SERVICES & another.[2] No. 12‑P‑951. Middlesex. June 11, 2013. ‑ February 18, 2014. Present: Berry, Katzmann, & Rubin, JJ. Department of Developmental Services. Intellectually Disabled Person. Administrative Law, Hearing, Findings, Substantial evidence. Notice. Civil action commenced in the Superior Court Department on April 28, 2011. The case was heard by Dennis J. Curran, J., on a motion for judgment on the pleadings. Stephen M. Sheehy for the plaintiff. Timothy J. Casey, Assistant Attorney General, for the defendants. KATZMANN, J. Through his guardian, G.R., a severely intellectually disabled individual who resides at the Fernald Developmental Center (FDC), challenges a Superior Court judge’s affirmance of the decision of the Division of Administrative Law Appeals (DALA) approving his transfer to the Wrentham Developmental Center (WDC). See G. L. c. 123B, § 3.[3] We focus our analysis on whether the Department of Developmental Services (DDS) presented the administrative magistrate at the DALA hearing with substantial evidence to support her decision that the interfacility transfer would be in G.R.’s best interest. After reviewing the administrative record and the parties’ submissions, we conclude that the magistrate’s decision was supported by substantial evidence and that there is no ground to set aside the DALA’s decision. We affirm the judgment of the Superior Court approving the DALA’s decision. See G. L. c. 30A, § 14(7). 1. Background. At the time of the administrative hearing, G.R. was sixty-six years old. He has lived at FDC since 1956. G.R. is severely intellectually disabled as well as blind and deaf. He cannot communicate verbally, although he will vocalize sometimes. In 2003, the year that its closure was announced, FDC served 280 residents. In November, 2010, FDC only served twenty-three residents. There are over eighty buildings on the FDC campus, and approximately fifty are not in use. As an older facility, FDC has extensive physical plant maintenance issues; however, funds are only available for necessary repairs, rather than renovations. There have also been significant staffing changes associated with FDC’s closure. From 2004 to the time of the administrative hearing, there were fifteen consolidations in residences or day programs. Staff members have transferred to other facilities, have retired, or have been laid off. As a Ricci class member, see Ricci v. Okin, 823 F. Supp. 984 (D. […]
Categories: News Tags: 1101114, department, Developmental, G.R., Lawyers, Services, Weekly
P.D. v. Department of Developmental Services, et al. (Lawyers Weekly No. 11-013-14)
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‑1460 Appeals Court P.D.[1] vs. DEPARTMENT OF DEVELOPMENTAL SERVICES & another.[2] No. 12‑P‑1460. Middlesex. June 11, 2013. ‑ February 18, 2014. Present: Berry, Katzmann, & Rubin, JJ. Department of Developmental Services. Intellectually Disabled Person. Administrative Law, Hearing, Findings, Substantial evidence. Notice. Civil action commenced in the Superior Court Department on August 10, 2011. The case was heard by Kathe M. Tuttman, J., on a motion for judgment on the pleadings. Stephen M. Sheehy for the plaintiff. Carrie Benedon, Assistant Attorney General, for the defendants. BERRY, J. This involuntary transfer case concerns a proposal by the Department of Developmental Services (DDS) to move P.D., a profoundly intellectually disabled man, from his home at the Fernald Developmental Center (FDC) to Heffron Hall B, apartment 3 (apartment 3) at the Wrentham Developmental Center (WDC). After determining that the transfer would result in improved services and quality of life for P.D. and be in his best interest, an administrative magistrate of the Division of Administrative Law Appeals (DALA) approved the transfer. See G. L. c. 123B, § 3. The guardians appeal from a Superior Court judgment affirming that decision. Concluding, as we do, that the decision was supported by substantial evidence and free from error of law, we affirm. Substantial evidence. The magistrate’s ultimate conclusion that the transfer would result in improved services and quality of life for P.D. was supported by substantial evidence. See G. L. c. 30A, § 14(7); G.R. v. Department of Developmental Servs., ante at (2013). In determining whether the transfer should proceed as in P.D.’s best interest, the magistrate properly examined the over-all picture, comparing the supports and services available at the respective facilities to meet P.D.’s unique needs. He also carefully considered the guardians’ many objections, as required by the statute, and rejected them as invalid or unreviewable, or valid but outweighed by other factors or adequately addressed by DDS. P.D. has lived at FDC for most of his life. His primary medical and psychiatric issues are sever pica (ingesting nonfood items), skin picking, hyperactivity, a swallowing disorder, and both obsessive-compulsive disorder and bipolar disorder. These conditions are addressed in his individual support/service plan (ISP). In his decision, the magistrate identified the seven distinct improvements in services and quality of life that DDS asserted would be available to P.D. at […]
Categories: News Tags: 1101314, department, Developmental, Lawyers, P.D., Services, Weekly
M.M. v. Department of Developmental Services, et al. (Lawyers Weekly No. 11-012-14)
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‑1592 Appeals Court M.M.[1] vs. DEPARTMENT OF DEVELOPMENTAL SERVICES & another[2] No. 12‑P‑1592. Middlesex. June 11, 2013. ‑ February 18, 2014. Present: Berry, Katzmann, & Rubin, JJ. Department of Developmental Services. Intellectually Disabled Person. Administrative Law, Hearing, Findings, Substantial evidence. Guardian. Notice. Civil action commenced in the Superior Court Department on July 27, 2011. The case was heard by Bruce R. Henry, J., on a motion for judgment on the pleadings. Stephen M. Sheehy for the plaintiff. Iraida J. Álvarez, Assistant Attorney General, for the defendants. KATZMANN, J. Through his guardians, M.M., a profoundly intellectually disabled individual who resides at the Fernald Developmental Center (FDC), challenges a Superior Court judge’s affirmance of the decision of the Division of Administrative Law Appeals (DALA) approving his transfer to the Wrentham Developmental Center (WDC).[3] See G. L. c. 123B, § 3. Our analysis here involves whether, during the DALA hearing, the Department of Developmental Services (DDS) presented the administrative magistrate with substantial evidence to support his decision that the interfacility transfer would result in improved services and quality of life for M.M. and be in M.M.’s best interest. After reviewing the administrative record and the parties’ submissions, we affirm the judgment of the Superior Court approving DALA’s decision. See G. L. c. 30A, § 14(7). 1. Background. M.M. is forty-nine years old and has resided at FDC since the age of five. He is profoundly intellectually disabled and cannot care for himself. He has nonspecified psychosis and suffers from episodes of anger and self-injurious behavior. DDS has proposed to transfer M.M. from his residence at FDC to Heffron Hall B apartment 3, at WDC. On June 10, 2010, DDS, as required by 115 Code Mass. Regs. § 6.63 (2009), issued a forty-five day notice and request for proposed facility transfer to M.M.’s guardians.[4] The guardians objected to the transfer, and DDS then referred the case to DALA. A DALA magistrate conducted an evidentiary hearing and concluded that DDS’s proposed transfer of M.M. to WDC was in his best interest. On July 19, 2012, a Superior Court judge affirmed the DALA magistrate’s decision. M.M., through his guardians, then filed a timely notice of appeal to this court. 2. Standard of review. This is an appeal under G. L. c. 30A, § 14. By statute, therefore, we must review the conclusion […]
Categories: News Tags: 1101214, department, Developmental, Lawyers, M.M., Services, Weekly
E.G. v. Department of Developmental Services, et al. (Lawyers Weekly No. 11-014-14)
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‑1560 Appeals Court E.G.[1] vs. DEPARTMENT OF DEVELOPMENTAL SERVICES & another.[2] No. 12‑P‑1560. Middlesex. June 11, 2013. ‑ February 18, 2014. Present: Berry, Katzmann, & Rubin, JJ. Department of Developmental Services. Intellectually Disabled Person. Administrative Law, Hearing, Findings, Substantial evidence. Notice. Civil action commenced in the Superior Court Department on July 7, 2011. The case was heard by Bruce R. Henry, J., on a motion for judgment on the pleadings. Stephen M. Sheehy for the plaintiff. Carrie Benedon, Assistant Attorney General, for the defendants. BERRY, J. The Department of Developmental Services (DDS) seeks to transfer E.G., a profoundly intellectually disabled individual, from the Fernald Developmental Center (FDC) to the Wrentham Developmental Center (WDC).[3] E.G.’s guardians oppose the transfer. Following an adjudicatory hearing on the guardians’ objections, an administrative magistrate of the Division of Administrative Law Appeals (DALA) concluded that the proposed transfer met the requirements of the State statutory standard, allowing it to proceed. See G. L. c. 123B, § 3. A judge of the Superior Court subsequently affirmed DALA’s decision. See G. L. c. 30A, § 14(7). We affirm. E.G. currently resides at Cottage 12B on the FDC campus with three other individuals. DDS’s plan calls for E.G. to be reunited with a number of his former longterm housemates at Heffron Hall B, apartment 3 at WDC (apartment 3). Although E.G. does not interact with his peers, he successfully lived with that peer group for over twenty-five years. We consider the claims and issues that are unique to E.G.’s individual circumstances. A finding that the transfer was in E.G.’s best interest was supported by substantial evidence. The vision section of E.G.’s 2009-2010 individual service/support plan (ISP) identifies the ability “to safely move about his home and workplace” as a hope and dream of the future, and “a stable home” as an aspect of his membership in the community. The living space at apartment 3, as compared to that at FDC, is indisputably smaller. Contrary to the guardians’ assertions, however, the magistrate credited the testimony from DDS’s witnesses that the personal space at apartment 3 would be adequate to meet E.G.’s needs. As the magistrate noted, familiar psychology staff will be assigned to E.G. at apartment 3, and they, in conjunction with familiar direct care workers who have transferred […]
Categories: News Tags: 1101414, department, Developmental, E.G., Lawyers, Services, Weekly
Beverly Port Marina, Inc. v. Commissioner of the Department of Environmental Protection, et al. (Lawyers Weekly No. 11-145-13)
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‑2010 Appeals Court BEVERLY PORT MARINA, INC. vs. COMMISSIONER OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION & another.[1] No. 12‑P‑2010. Essex. September 12, 2013. ‑ December 11, 2013. Present: Green, Grainger, & Fecteau, JJ. Department of Environmental Protection. Administrative Law, Agency’s interpretation of regulation, Regulations. Regulation. Real Property, Littoral property, License. License. Civil actions commenced in the Superior Court Department on July 22 and November 7, 2011. After consolidation, the case was heard by David A. Lowy, J., on motions for judgment on the pleadings. Adam J. Brodsky for the plaintiff. Louis M. Dundin, Assistant Attorney General, for Department of Environmental Protection. Richard A. Nylen, Jr., for city of Beverly. GREEN, J. Under the regulations governing issuance of licenses under G. L. c. 91 for projects on filled tidelands, a license may not issue for a project proposed in a “designated port area” (DPA) if a proposal for a “competing project” submitted during the public comment period on the license application would promote water-dependent industrial uses of the project site to a greater extent than the project proposed in the license application. See 310 Code Mass. Regs. § 9.36(5)(a) (1994). During review by the Department of Environmental Protection (DEP) of an application by the city of Beverly (city) for licenses authorizing, inter alia, construction and operation of a restaurant on a waterfront site, the plaintiff, Beverly Port Marina, Inc. (BPM), submitted a proposal to, inter alia, build and operate a boatyard on the site instead. A DEP hearing officer (presiding officer) concluded that BPM’s submission failed to demonstrate that its proposal was feasible, and recommended issuance of the licenses, with conditions, for the city’s proposed project. The DEP commissioner adopted the recommended decision, and BPM appealed the decision to the Superior Court, where a judge affirmed the decision on cross motions for judgment on the pleadings. We conclude that BPM’s competing proposal adequately satisfied the criteria established by the applicable regulations, and we vacate the judgment. Background. The site at the center of the controversy among the parties is a parcel owned by the city known as “Glover’s Wharf,” located along the Beverly waterfront. The site is at the westernmost end of a DPA established in 1978 under the Massachusetts Coastal Zone Management Plan. See 301 Code Mass. Regs. […]
Categories: News Tags: 1114513, Beverly, Commissioner, department, Environmental, Inc., Lawyers, Marina, Port, Protection, Weekly
Olmstead v. Department of Telecommunications and Cable, et al. (Lawyers Weekly No. 10-194-13)
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‑11240 BRIAN MICHAEL OLMSTEAD vs. DEPARTMENT OF TELECOMMUNICATIONS AND CABLE & others.[1] Suffolk. September 9, 2013. ‑ December 4, 2013. Present: Ireland, C.J., Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Supreme Judicial Court, Appeal from order of single justice. Telecommunications. Public Utilities, Telecommunications, Judicial review. Administrative Law, Judicial review, Agency’s interpretation of statute. Due Process of Law, Appeal. Statute, Construction. Practice, Civil, Dismissal of appeal, Moot case. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on September 15, 2011. A motion to dismiss was considered by Spina, J., and a motion for reconsideration was considered by him. Brian Michael Olmstead, pro se. Suleyken D. Walker, Assistant Attorney General, for the Department of Telecommunications and Cable. Alexander W. Moore, for Verizon New England, Inc., & another, was present but did not argue. CORDY, J. In this case, we are asked to decide if the single justice erred, first, in concluding that G. L. c. 25, § 5, governs judicial review of a final order by the Department of Telecommunications and Cable regarding a consumer telephone service complaint and, second, in dismissing the plaintiff’s complaint because it failed to comply with the timely filing requirements of G. L. c. 25, § 5. We affirm the single justice’s ruling that G. L. c. 25, § 5, applies to such appeals. However, because the plaintiff was afforded a renewed opportunity to pursue an appropriate and timely appeal under G. L. c. 25, § 5, and has chosen to do so, we dismiss this case as moot. 1. Background. a. The plaintiff’s initial claims. This case arises from a consumer dispute regarding billing practices and quality of telephone, cable television, and Internet service provided by Verizon New England, Inc., to the plaintiff, a residential customer. In December, 2009, the plaintiff filed an appeal and a claim for an adjudicatory hearing with the department, alleging that Verizon New England had violated the department’s Rules and Practices Relating to Telephone Service to Residential Customers, and had otherwise engaged in unfair and deceptive business practices. The matter was assigned to a hearing officer, and after a tortuous procedural history, the claim was dismissed as moot because, in the course of the proceedings, the plaintiff’s customer relationship with Verizon New England had been terminated due to continuous nonpayment. The plaintiff appealed the hearing officer’s decision to the Commissioner of […]
Categories: News Tags: 1019413, Cable, department, Lawyers, Olmstead, Telecommunications, Weekly
J.W. v. Department of Developmental Services, et al. (Lawyers Weekly No. 11-121-13)
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] No. 12‑P‑1760. Middlesex. June 6, 2013. ‑ October 3, 2013. Present: Vuono, Brown, & Sikora, 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 plaintiffs. BROWN, J. In a thoughtful and comprehensive seventy-six page decision, an administrative magistrate of the Division of Administrative Law Appeals (DALA) approved the involuntary transfer of J.W., a severely intellectually disabled individual, from his residence at Malone Park 23 at the Fernald Developmental Center (FDC) to Heffron Hall A, apartment 4 at the Wrentham Developmental Center (WDC). See G. L. c. 123B, § 3, as amended through St. 2010, c. 239, §§ 46-48. On review, a judge of the Superior Court concluded that while “there [was] no lack of substantial evidence for the decision,” the magistrate erred by limiting his consideration of J.W.’s best interest to placements at either Malone Park 23 or the single alternative proposed by the Department of Developmental Services (DDS). See G. L. c. 30A, § 14(7)(c). On this basis, judgment entered vacating DALA’s decision and remanding the matter to DALA for further proceedings. This appeal followed. Although we agree with the judge’s conclusion that substantial evidence supported DALA’s decision, we disagree with his statutory construction. Accordingly, we vacate the judgment of the Superior Court and remand the case for entry of a judgment affirming DALA’s decision. Because this appeal turns on an issue of statutory interpretation, we set out the terms of the governing transfer statute, G. L. c. 123B, § 3 (transfer statute or § 3), in some detail. The transfer statute provides a specific process that must be followed by DDS in every case where it seeks to transfer an intellectually disabled individual “from one residential facility for the intellectually disabled to another.” G. L. c. 123B, § 3, first par. The first paragraph of § 3 establishes that DDS must consult with the permanent guardians (or nearest relative) of the individual and give notice “at least forty-five days prior […]
Categories: News Tags: 1112113, department, Developmental, J.W., Lawyers, Services, Weekly