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SJC-12369

    MICHAEL CAREY & others1    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.




    1  Gatewood West and Brenda Frazier. David Nathanson, Andrew
W. Cowan, and Adriana Contartese, who were plaintiffs in the
action in the Superior Court, have not participated in this
appeal. See note 3, infra.
                                                                   2


     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.

     1.   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


     2 In early 2013, the Department of Correction (department)
announced its intention to implement canine searches via a video
recording that played in correctional facility lobbies. The
department posted a similar video on the Internet Web site
                                                                   3


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.




YouTube. In March, 2013, the department posted a fact sheet
regarding the new policy on its own Web site, stating in part:
"In response to an increase in drug and other contraband-related
incidents involving visitors, the [department] will soon employ
the use of dogs, trained to detect the presence of drugs, to
address this problem." The department also distributed and
posted documents regarding the policy, stating in pertinent
part: "To further its ability to detect and prevent [drug
smuggling] activity, the [department] will implement the use of
non-aggressive, highly trained narcotic detection dogs in
certain prison facilities for visitor and staff searches
beginning the first full week in November."

     3 The complaint alleged a violation of the regulation
governing attorney visits, see 103 Code Mass. Regs. § 486.07(4)
(2015), and sought a judgment declaring that the policy was not
authorized. The judge in the Superior Court who granted summary
judgment permanently enjoined the department from enforcing the
policy with regard to attorney visitors, on the ground that the
regulation governing attorney visits did not allow for
additional search procedures. The Commissioner of Correction
(commissioner) did not appeal from that portion of the judgment.
Those plaintiffs who were attorneys have not participated in
this appeal.
                                                                       4


     The policy was thereafter implemented.     The dogs performing

the searches are not aggressive and remain leashed at all times.4

They "alert" to the presence of a banned substance by sitting;

they do not snarl, lunge, or bite.    There are alternative

procedures for those visitors who are allergic to, or afraid of,

dogs.

     A second Superior Court judge granted summary judgment for

the commissioner, entering a judgment declaring that the

commissioner had the authority to establish the policy without

having to comply with the procedural requirements of the APA

because the policy is "sufficiently similar to the searches

specifically enumerated in the regulatory language."     The

instant appeal followed.   We transferred the case to this court

on our own motion.

     2.   Discussion.   Because this matter comes before us

following a grant of summary judgment, we look to the summary

judgment record and review de novo.      Miller v. Cotter, 448 Mass.

671, 676 (2007).

     a.   The viability of the policy.    The plaintiffs argue that

the policy is prohibited by the department's existing

regulations.   We disagree.


     4 As of January, 2014, there were four department dogs, all
golden or Labrador retrievers: Sophie, Bailey, Greta, and Rudy.
Each dog has a handler, one of whom serves as canine commander
and oversees the dogs' training program.
                                                                   5


    By statute, the commissioner is required to "make and

promulgate necessary rules and regulations incident to the

exercise of his powers and the performance of his duties

including but not limited to rules and regulations regarding

. . . visiting privileges."    G. L. c. 124, § 1 (q).    The

governing regulation states:

    "Each superintendent shall establish a search procedure
    that is effective in preventing the smuggling of articles
    into the visiting area of the institution. The search
    procedure may include as a prerequisite to admission that
    visitors successfully pass through a metal detector and/or
    scanner, and/or a personal search, and that any articles
    they are carrying be thoroughly searched. . . ."

103 Code Mass. Regs. § 483.14(2) (2004).

    A plaintiff challenging an agency interpretation has a

"formidable burden."   Ten Local Citizen Group v. New England

Wind, LLC, 457 Mass. 222, 228 (2010), quoting Northbridge v.

Natick, 394 Mass. 70, 74 (1985).    Unless an agency's

interpretation of its own regulation is "arbitrary,

unreasonable, or inconsistent with the plain terms of the rule,"

such interpretation is entitled to deference.    Manor v.

Superintendent, Mass. Correctional Inst., Cedar Junction, 416

Mass. 820, 824 (1994), quoting Finkelstein v. Board of

Registration in Optometry, 370 Mass. 476, 478 (1976).

    Here, the plaintiffs allege not that the policy is

arbitrary or unreasonable, but that it is inconsistent with the

existing regulation because, they claim, the policy only permits
                                                                    6


searches that are similar to metal detectors and personal

searches.   We see nothing in the language of the general

regulation that precludes a canine search.   On the contrary, by

using "shall," the regulation mandates that the search procedure

be effective in preventing smuggling of contraband into

correctional facilities.5   See Galenski v. Erving, 471 Mass. 305,

309 (2015).   Further, as to the specifics of any such procedure,

the regulation uses broad, permissive language (i.e., "search

procedure may include" [emphasis added]).6   103 Code Mass. Regs.


     5 The plaintiffs argue that the policy is also inconsistent
with the regulation because the commissioner instituted it,
whereas the regulation states that the "superintendent [of each
correctional facility] shall establish a search procedure." 103
Code Mass. Regs. § 483.14(2) (2004). This argument is
unpersuasive. By statute the ultimate authority over the
operation of all correctional facilities lies with the
commissioner. G. L. c. 124, § 1 (q).

     6 We disagree with the plaintiffs' contention that the
doctrine of ejusdem generis limits the department to searches
similar to those enumerated. Ejusdem generis is a canon of
statutory construction that applies to lists "[w]here general
words follow specific words in a statutory enumeration"
(citation omitted). Banushi v. Dorfman, 438 Mass. 242, 244
(2002). It limits the "general terms which follow specific ones
to matters similar to those specified." Commonwealth v.
Gallant, 453 Mass. 535, 542 (2009), quoting Powers v. Freetown–
Lakeville Regional Sch. Dist. Comm., 392 Mass. 656, 660 n.8
(1984). Ejusdem generis does not apply here because rather than
beginning with specific terms, this list begins with a general
term, "a search procedure that is effective," then provides
nonexclusive examples. 103 Code Mass. Regs. § 483.14(2). Cf.
United States v. Turkette, 452 U.S. 576, 581-582 (1981)
(declining to apply ejusdem generis where statute did not
conform to structure of list of specific terms preceding
disputed general term); Trustees of Andover Theological Seminary
v. Visitors of the Theological Inst. in Phillips Academy in
                                                                    7


§ 483.14(2).   See Wiedmann v. Bradford Group, Inc., 444 Mass.

698, 709-710 (2005) (use of "may" is permissive, not mandatory).

Notwithstanding the possibility of a false positive,7 there is no

dispute that canine searches are effective in detecting

contraband that metal detectors and personal searches may not

detect.   Giving due deference to the department's interpretation

of its regulation, we conclude that the existing regulation

permits canine searches.

     b.   The APA.   Apart from the question whether the canine

search policy is permissible under the department's current

regulations is the question whether the department was required

to follow the procedures set forth in the APA for promulgating

or amending regulations.   The APA details procedures that State

agencies, including the department, must follow when adopting

new regulations (as defined in the statute).   Its purpose is to

"establish a set of minimum standards of fair procedure below

which no agency should be allowed to fall" and to create




Andover, 253 Mass. 256, 270 (1925) (declining to apply ejusdem
generis where general words preceded disputed list).

     7 The plaintiffs direct our attention to case law
recognizing that dogs sometimes "alert falsely" either to
remnants of drugs or in order to please their handlers. See
Commonwealth v. Ramos, 72 Mass. App. Ct. 773, 776 (2008). The
plaintiffs do not allege, however, that canine searches are
ineffective.
                                                                    8


uniformity in agency proceedings.8   Curran & Sacks, The

Massachusetts Administrative Procedure Act, 37 B.U. L. Rev. 70,

76-77 (1957).   See Reid v. Acting Comm'r of Dep't of Community

Affairs, 362 Mass. 136, 144 (1972); Palmer v. Rent Control Bd.

of Brookline, 7 Mass. App. Ct. 110, 115 (1979).

     Among other requirements, prior to promulgating a

regulation (as defined by the APA), a State agency must "give

notice and afford interested persons an opportunity to present

data, views, or arguments."   G. L. c. 30A, § 3.   The notice and

comment period provides an "opportunity for 'input' and debate

by the persons affected, and deliberate resolution of issues."

Massachusetts Gen. Hosp. v. Rate Setting Comm'n, 371 Mass. 705,

707 (1977).

     The commissioner contends that the policy is not subject to

the APA because it does not fall within the APA's definition of

a regulation.   Although we accord substantial deference to an

agency's interpretation of its own regulations, Northbridge, 394

Mass. at 74, we do not defer to its interpretation of the APA.

     Under the APA, a regulation "includes the whole or any part

of every rule, regulation, standard or other requirement of

general application and future effect, including the amendment


     8 The purpose of the Massachusetts Administrative Procedure
Act (APA) is similar to that of the comparable Federal statute.
Milligan v. Board of Registration in Pharmacy, 348 Mass. 491,
500 (1965).
                                                                     9


or repeal thereof, adopted by an agency to implement or

interpret the law enforced or administered by it."    G. L.

c. 30A, § 1 (5).    Given the purpose of the APA, we interpret its

definition of regulation broadly.    See Commonwealth v. Trumble,

396 Mass. 81, 88 (1985), citing Curran & Sacks, supra at 77.

Nevertheless, the definition excludes "regulations concerning

only the internal management . . . of the . . . agency, and not

substantially affecting the rights of or the procedures

available to the public or that portion of the public affected

by the agency's activities."    G. L. c. 30A, § 1 (5) (b).    Upon

review, we conclude that the policy is not exempt from APA

requirements as it is not one that concerns internal management

alone, and, at a minimum, it substantially affects the

procedures available to visitors to correctional facilities.

    Simply put, the introduction of the new policy

substantially affected the procedures available to the public

because, prior to the implementation of the policy, visitors to

correctional facilities were not subject to dog sniff searches,

but now they are.    This change could have a potentially

significant impact on the visiting public's experience,

including increased wait times, increased anxiety due to a fear

of dogs or of false positives, and concerns in connection with

allergies.   Compare Trumble, 396 Mass. at 89 (policy not subject

to APA where it concerned how State police should conduct
                                                                     10


roadblocks already taking place).     The fact that the department

publicized the new policy by way of a coordinated multimedia

campaign well before the policy's planned implementation date is

a strong indicator that the department was well aware that

implementing canine searches would be of substantial concern to

those affected.9

     Given the department's efforts to publicize the policy, the

commissioner cannot credibly argue that the policy concerns only

internal management issues.     Rules or regulations that concern

"only the internal management" of an agency are those that

concern the organizational structure of that agency, or those

that are directed toward agency employees, instructing them on

how they should perform their duties.     See Trumble, 396 Mass. at

89 (State police document detailing how State troopers should

conduct roadblocks considered to be for internal management

purposes and not subject to APA).     Clearly the department

intended to, and did, broadcast information about the new policy

to the public.     Indeed, it was the publication of the




     9 In addition to the video recording that the department
showed in correctional facility lobbies and uploaded to the
Internet, the fact sheet that the department featured on its Web
site, and the notice that the department posted in its
facilities announcing the policy to the public, the commissioner
wrote a letter about the policy to governmental officials and
distributed written explanations to department staff and
inmates.
                                                                      11


department's planned implementation of the policy that prompted

the instant action.

    The commissioner argues additionally that the department's

policy is "intend[ed] to fill in the details or clear up an

ambiguity" of the regulation governing searches of visitors,

rather than to initiate a material change, and that thus the

policy is not subject to the APA.   Arthurs v. Board of

Registration in Med., 383 Mass. 299, 313 n.26 (1981), quoting

Massachusetts Gen. Hosp., 371 Mass. at 707 ("Agencies 'intending

to fill in the details or clear up an ambiguity of an

established policy' may issue interpretation or informational

pronouncements without going through the procedures required for

the promulgation of a regulation").     We are not persuaded.    An

agency's interpretation of its own regulations may trigger the

APA if that interpretation leads to a rule or policy that meets

the APA's definition of a regulation.    See, e.g., Electronic

Privacy Info. Ctr. v. United States Dep't of Homeland Sec., 653

F.3d 1, 7 (D.C. Cir. 2011) ("the purpose of the APA would be

disserved if an agency with a broad statutory command . . .

could avoid notice-and-comment rulemaking simply by . . .

invoking its power to interpret that statute and regulation in
                                                                   12


binding the public to a strict and specific set of

obligations").10

     For the foregoing reasons we conclude that, at a minimum,

the policy "substantially affect[s] . . . the procedures

available to the public or that portion of the public affected

by the agency's activities" such that the policy is subject to

the APA.11   G. L. c. 30A, § 1 (5) (b).   See Electronic Privacy

Info. Ctr., 653 F.3d at 6 (use of advanced imaging technology

rather than magnetometers at airports was subject to Federal APA

as it "substantively affect[ed] the public to a degree

sufficient to implicate the policy interests animating notice-

and-comment rulemaking").

     3.   Conclusion.   The case is remanded to the Superior Court

for entry of a judgment declaring that the department was

required to, but did not, meet the requirements of the APA when

it adopted this regulation, but that such a regulation, if




     10The Federal APA has a similar definition of regulation
and similar exceptions thereto. See 5 U.S.C. §§ 551(4), 553(b).
The Federal jurisprudence interpreting these provisions is
similar, but not identical, to our jurisprudence. Compare
Massachusetts Gen. Hosp. v. Rate Setting Comm'n, 371 Mass. 705,
711-712 (1977), and Commonwealth v. Trumble, 396 Mass. 81, 88-90
(1985), with Electronic Privacy Info. Ctr. v. United States
Dep't of Homeland Sec., 653 F.3d 1, 5-7 (D.C. Cir. 2011).

     11Because we conclude that the policy substantially affects
the procedures available to the visiting public, we need not
reach the question whether it also substantially affects the
rights of the visiting public.
                                                                   13


properly adopted in conformance with the APA, would not conflict

with existing department regulations.    Entry of the judgment

shall be stayed for 180 days to permit the department to take

such action as it may deem appropriate in light of this opinion,

including, if it wishes, adopting the regulation anew in

conformance with the APA.    In light of the security concerns and

risks involved, the department may continue to enforce the

regulation in the interim.    See Electronic Privacy Info. Ctr.,

653 F.3d at 11.

                                     So ordered.
