Carey, et al. v. Commissioner of Correction (Lawyers Weekly No. 10-067-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12369   MICHAEL CAREY & others[1]  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.     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. 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 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. The policy was thereafter implemented.  The dogs performing the searches are not aggressive and […]

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