Opinion
21-P-719
04-15-2022
Edward G. WRIGHT v. MASSACHUSETTS DEPARTMENT OF CORRECTION & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Under 103 Code Mass. Regs. § 481.12(2), as promulgated by the Department of Correction in May 2017, in compliance with the Administrative Procedures Act (APA), G. L. c. 30A, § 2, "all incoming non-privileged correspondence and packages may be required to successfully pass a fluoroscope examination for contraband materials, and shall be opened and inspected before delivery to the inmate. The purpose of inspection will be to receive and receipt any funds enclosed for the inmate; to verify and record the receipt of permitted personal property; and to prevent the transmission of contraband to the inmate. If there is reason to believe contraband is being introduced through the mail based on the paper color, texture, etc., a photocopy of the original correspondence rather than the original correspondence may be forwarded to the inmate."
In 2018, the Commissioner of the department issued a new standard operating procedure (SOP) providing that, for facilities authorized by the Commissioner, "all incoming nonprivileged inmate mail shall be photocopied prior to distribution to the inmate," with inmates receiving either a photocopy or an electronic copy of the photocopy.
In this litigation against the department and a former correctional center superintendent (together, the defendants), brought pro se by plaintiff Wright, an inmate in the custody of the department, a judge of the Superior Court (motion judge) granted summary judgment for the plaintiff, concluding that the SOP violated the regulation and was itself a regulation that could be issued only in compliance with the APA. The motion judge enjoined the blanket use of the procedure of photocopying all incoming nonprivileged inmate mail and providing to inmates only the photocopies absent the adoption, in compliance with the APA, of a regulation providing for such a procedure. The judge stayed her order for 180 days to allow the department to take such action as it deemed appropriate, including amending 103 Code Mass. Regs. § 481 in conformance with the APA. That stay was enlarged by a second judge of the Superior Court until April 2, 2021, when the department purported to promulgate an amendment to 103 Code Mass. Regs. § 481. The new regulation permits photocopying of all nonprivileged inmate mail as directed by the Commissioner, and the distribution to prisoners of only those photocopies.
Civil contempt. 1. Background. Subsequently, the plaintiff filed a civil contempt complaint alleging that the defendants continued to photocopy the plaintiff's and other prisoners' incoming nonprivileged mail, delivering only the photocopies, beyond April 2, 2021, and that this violated the Superior Court injunction because the purported amendment to 103 Code Mass. Regs. § 481 had not been properly promulgated in compliance with the APA. Among other things, the plaintiff sought to enjoin the continued blanket photocopying procedure in the absence of a valid regulation adopted in compliance with the APA. General Laws c. 30A, § 2, provides, "A public hearing is required prior to the adoption, amendment, or repeal of any regulation if: (a) violation of the regulation is punishable by fine or imprisonment; or, (b) a public hearing is required by the enabling legislation of the agency or by any other law; or, (c) a public hearing is required as a matter of constitutional right." The plaintiff averred in his verified complaint that the defendants did not place public hearing notices in newspapers as required by the APA, and also described what he asserted were inadequacies with the public hearing, which was held on January 29, 2021, via Zoom.
The defendants' entire opposition read, "defendants state that they have complied with this Court's Declaratory Judgment Order by holding a public hearing and promulgating a new version of 103 CMR 481, Inmate Mail." They attached to their opposition a January 5, 2021, notice of public hearing, about which the plaintiff had not raised any objection, which stated that, "pursuant to M.G.L.c. 30A, § 2, the Department of Correction will hold a virtual public hearing on proposed amendments to the" regulation. They also attached a copy of the proposed new regulation.
The motion judge dismissed the contempt complaint, writing "DOC has enacted a regulation as required by court order, plaintiff's concerns about the public hearing notwithstanding." The plaintiff moved for reconsideration which was denied. The plaintiff has appealed.
2. Discussion. A finding of contempt requires the plaintiff to "show two elements: there must be (1) clear disobedience of (2) a clear and unequivocal command." Smith v. Smith, 93 Mass. App. Ct. 361, 363 (2018). Following the expiration on April 2, 2021, of the stay put in place by the motion judge, unless it is undertaken pursuant to a new regulation adopted in accordance with the APA, the photocopying by the defendants of all inmate mail and distribution to inmates only of photocopies (as opposed to implementing the 2017 version of 103 Code Mass. Regs. § 481, as construed by the motion judge) is a violation of the injunction put in place by the motion judge. The department held a public hearing via Zoom on January 29, 2021. It issued a public notice of the hearing on January 5, 2021, and published public notice of the hearing in the Boston Herald newspaper. The copy of the newspaper notice provided by the defendants in the appendix is dated January 20, 2021, nine days prior to the public hearing. The notice reads, "notice is hereby given that pursuant to M.G.L.c. 30A, § 2, the Department of Correction will hold a virtual public hearing on proposed amendments to the following regulation: 103 CMR 481: Inmate Mail."
General Laws c. 30A, § 2, the provision referred to by the department in its own notice, applies to the adoption, amendment, or repeal of regulations as to which a public hearing is required. It provides that "[w]ithin the time specified by any law, or, if no time is specified, then at least twenty-one days prior to the date of the public hearing, the agency shall give notice of such hearing by (a) publishing notice of such hearing in such manner as is specified by any law, or, if no manner is specified, then in such newspapers, and, where appropriate, in such trade, industry or professional publications as the agency may select." There is no suggestion that any time other than twenty-one days is specified by any law.
In their brief before us, the defendants argue that the department provided proper notice pursuant to G. L. c. 30A, § 2. That is incorrect. The newspaper publication was not provided twenty-one days before the public hearing. At argument, counsel asserted that other methods of publication, including publication on "mass.gov," the Commonwealth's own website, amounted to adequate publication in a trade publication; but even assuming what we do not decide (that there was adequate publication in a trade publication), the statute makes clear by using the word "and" that this is not a substitute for, but is permitted in addition to, the required newspaper publication. At argument, counsel for the defendants suggested that any error with respect to notice might have been "harmless." But the only exception to the public notice requirement in the statute is for the promulgation of temporary emergency regulations, which must be accompanied by a finding "that observance of the requirements of notice and a public hearing would be contrary to the public interest." Id. Even had the defendants shown that there was no consequence to the late publication, which they have not, the statute does not provide for any exemption from its procedural requirements because a court subsequently concludes they were of no value.
The defendants imply, but do not flatly state, that the department was not in any event required to comply with § 2 in promulgating the new regulation. They argue that "even if this Court were to find flaws in the January 29, 2021, hearing, defendants submit that the uncontroverted evidence is clear that defendants accepted public comment, pursuant to G. L. c. 30A, § 3, and that alone is sufficient to comply with G. L. c. 30A."
To the extent this is intended as an argument that the department could lawfully have promulgated this regulation under G. L. c. 30A, § 3, which applies only to regulations with respect to which a public hearing is not required, it was not raised below. Rather, the defendants asserted that the department complied with the motion judge's order "by holding a public hearing and promulgating a new version of 103 Code Mass. Regs. § 481," and in support of this included the department's notice of public hearing, which said that the hearing was being held pursuant to § 2.
Although we have authority to affirm an order on "any ground apparent on the record," Gabbidon v. King, 414 Mass. 685, 686 (1993), where an argument is raised for the first time on appeal, we also have discretion to decline to address it. Given the seriousness of the question and the paucity of briefing on the issue, that is the prudent approach here. See Perseus of N.E., MA., Inc. v. Commonwealth, 429 Mass. 163, 168 (1999) (declining to affirm summary judgment on ground not raised below). See also CRST Van Expedited, Inc. v. EEOC, 578 U.S. 419, 434-435 (2016) (United States Supreme Court has "authority to affirm ‘on any ground properly raised below’ ").
It may be that a violation of the newly adopted regulation, 103 Code Mass. Regs. § 481 (2021), is not "punishable by fine or imprisonment," and that a public hearing under § 2 was therefore not required before its promulgation. As we say, we decline to reach the question. Indeed, it has not even been briefed or argued by the defendants. Nor have the defendants adequately explained how the department purports to have complied with § 3, which requires the same twenty-one days' advance newspaper notice by an agency "prior to its proposed action." G. L. c. 30A, § 3. Perhaps "its proposed action" can mean the department's promulgation of the new regulation, but where the agency did hold a public hearing (a possibility clearly envisioned by § 3 for regulations promulgated thereunder), and did provide notice of it, but without the specified twenty-one days, it is not obvious that promulgation of the regulation would have been in compliance with § 3, even were promulgation pursuant to that provision permissible. Again, we decline to reach the question.
There is no dispute that the prior version of the regulation was promulgated pursuant to § 2, and that the notice concerning the new regulation identified that mechanism as the one by which it was being promulgated. We note that the new regulation by its terms "is applicable to all employees and inmates at all state correctional institutions." It includes rules for outgoing and incoming privileged and nonprivileged mail, including mail to and from attorneys, and mail petitioning government officials for redress of grievances. It sets out procedures for the interception of contraband in both outgoing and incoming mail. The defendants have not addressed the nature of punishment provided by the new regulation for its violation, either by employees or inmates.
The new regulation was not adopted in compliance with G. L. c. 30A, § 2. The order dismissing the complaint for contempt is therefore reversed, and the case is remanded for the judge to determine the proper remedy for the blanket photocopying of mail and the delivery of only photocopies of mail in the absence of a properly promulgated regulation, which action violates the court's injunction.
Delivery of preserved mail. After the plaintiff filed this action and requested an order temporarily or permanently enjoining the defendants from destroying certain withheld mail, the defendants assured the court that they would maintain and preserve all the plaintiff's original mail throughout the pendency of the proceedings. The defendants continued to preserve and maintain this mail during the trial court stay and continue to do so during the pendency of this appeal. Subsequent to the adoption of the new regulation, the plaintiff also brought a "petition," really a motion, seeking the delivery to him of the originals of mail received by the defendants while the SOP was in place, only photocopies of which had been delivered to him. The defendants responded that, under the newly promulgated regulation, this mail was contraband and could not be delivered.
We have concluded that the new regulation was not properly promulgated, but even assuming it had been, the new regulation does not purport to be retroactive such that it would apply to mail that was received prior to its adoption. The incoming mail that has been preserved, and which Wright seeks, was withheld from him under the now-invalidated SOP. When the mail was received, only the 2017 regulation was lawfully in effect.
The mail received prior to adoption of the new regulation on April 2, 2021, therefore may be processed only under the regulation lawfully in effect at the time that it was "incoming non-privileged correspondence." Under that regulation, "[i]f there is reason to believe contraband is being introduced through the mail based on the paper color, texture, etc., a photocopy of the original correspondence rather than the original correspondence may be forwarded to the inmate." Thus, under that regulation, the plaintiff's preserved mail should be delivered to the plaintiff unless, as the motion judge explained in her decision on summary judgment, which construed the 2017 regulation, "after inspection, something about the correspondence gives rise to a suspicion that the mail contains drugs." Paper color and texture clearly may be taken into account, as may, in the words of the motion judge, "other similar indicia from the correspondence itself." This does not mean, as the defendants argued during the underlying litigation concerning the SOP, that all of the preserved mail may be withheld from delivery. Rather, as the judge explained, "[o]ne could postulate, for example, that ‘etc.' refers to other visible indicia or odors evident from the mail that give rise to a suspicion that it contains drugs."
In this appeal, the plaintiff raises no issue with respect to mail received by the defendants on or after April 2, 2021.
Thus, except for any individual pieces of mail with respect to which "after inspection, something about the correspondence gives rise to a suspicion that the mail contains drugs," all of the plaintiff's preserved incoming mail received by the defendants prior to April 2, 2021, must be delivered to the plaintiff. The order denying the petition to have mail released to the plaintiff is reversed and the case is remanded to allow the Superior Court to craft an appropriate order for the release to the plaintiff of that mail received prior to April 2, 2021, which should have been released to him pursuant to the 2017 regulation, the only one properly in effect at the time the mail was received. The order shall protect the plaintiff's right to challenge any determination that one or another particular piece of mail is not to be delivered to him, and the defendants shall continue to preserve the plaintiff's mail pending further order of the court with respect to its disposition.
So ordered.
Reversed and remanded