CARRIER v. DEPARTMENT OF CORRECTION (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, Joshua Carrier, an inmate at Old Colony Correctional Center (OCCC), appeals from a judgment dismissing his complaint for certiorari relief. Because the plaintiff's allegations do not state a plausible claim that he is entitled to relief, or that the Superior Court judge committed legal error in dismissing his complaint, we affirm.

The plaintiff alleged that on September 22, 2016, the defendant Department of Correction (department) posted notice in the OCCC library that it was proposing changes to its regulations and that those wishing to submit written comments should do so on or before September 27, 2016. Upon the plaintiff's request, OCCC staff provided him with a copy of the proposed changes on September 23, 2016. Public hearings were scheduled for September 27 and 29, and October 4 and 6, 2016, in the McCormack Building, One Ashburton Place, Boston. Claiming it was impossible for him to submit comments in time, the plaintiff instead wrote to the department and to the defendant Secretary of the Commonwealth (Secretary) on September 26 requesting postponement of the public hearings because the department had not complied with the notice requirements of the Administrative Procedure Act, G. L. c. 30A, § 2.

As relevant here, § 2 provides that agencies adopting, amending, or repealing regulations must first hold a public hearing and give notice thereof “at least twenty-one days prior to the date of the public hearing.” G. L. c. 30A, § 2. The statute specifies how agencies must give notice, including by (a) publishing the notice “in such newspapers, and, where appropriate, in such trade, industry or professional publications as the agency may select”; (b) “notifying any person to whom specific notice must be given”; (c) “notifying any person or group filing a written request for notice of agency rule making hearings,” and filing a copy of the notice with the Secretary. Id. The plaintiff does not allege that he is a person to whom specific notice must be given, that he requested notification, or that the department did not otherwise provide such notice as § 2 requires.

Section 2 does not explicitly or implicitly require the department to post notification of its proposed regulatory actions inside its facilities. Nonetheless, the plaintiff argues that, because § 2 provides that notice shall be made “where appropriate,” the department was obliged to post timely notice in the prison's library. The plaintiff suggests that the Legislature intended that agencies give notice to “the people who are affected by the changes” and that § 2 therefore must be construed to require posting notice in prison libraries sufficiently in advance of any hearing so that inmates may submit written comments.

As the motion judge noted, the “where appropriate” language of § 2 refers to publication in “such trade, industry or professional publications as the agency may select.” A prison library is not such a publication. The intent of the Legislature is derived primarily from the language of its enactments, see International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 853 (1983), and we will not add words to a statute that the Legislature did not put there, whether by inadvertent omission or design, see Cameron Painting, Inc. v. University of Mass., 83 Mass. App. Ct. 345, 349 (2013).

We note that if the plaintiff truly wanted to submit written comments, as he alleges, he could have attempted to submit them late. He does not allege that he made any attempt to do so, or that his comments would have been rejected as untimely. Indeed, the department's notice states that written testimony and comments “should” be submitted by the close of business on September 27, 2016, not that they “must.” Attempting to submit his comments even a week or two late might have been a more effective way of being heard than the avenues the plaintiff elected. If the plaintiff should desire notification of future rulemaking hearings, nothing prevents him from submitting a written request for notice to the department as described in § 2.³

We also reject the plaintiff's argument that the motion judge violated Superior Court Standing Order 1-96 by dismissing the case prior to the filing of the administrative record. The standing order states that a motion to dismiss under Mass. R. Civ. P. 12 (b), 365 Mass. 754 (1974), must be filed “not later than twenty (20) days after service of the record by the administrative agency.” By the use of “not later,” the order sets a final deadline but does not prohibit an earlier motion. The motion to dismiss, therefore, was properly before the motion judge.

Judgment affirmed.

FOOTNOTES

3.   A person who files a written request for notice of an agency's rule making hearings must renew the request each December. See G. L. c. 30A, § 2.