Com. v. Clemmey

• Decision Date: 30 June 2006
• Citation: 849 N.E.2d 844,447 Mass. 121
• Parties: COMMONWEALTH v. Karl D. CLEMMEY (and a companion case<SMALL><SUP>1</SUP></SMALL>).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

849 N.E.2d 844

447 Mass. 121

COMMONWEALTH v. Karl D. CLEMMEY (and a companion case¹).

Supreme Judicial Court of Massachusetts, Bristol.

Argued February 8, 2006.

Decided June 30, 2006.

COPYRIGHT MATERIAL OMITTED

Daniel I. Smulow, Assistant Attorney General (Paul Molloy, Assistant Attorney General, with him) for the Commonwealth.

Howard M. Cooper for Karl D. Clemmey & another.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

CORDY, J.

On December 19, 2003, a grand jury, sitting in Bristol County, returned a ten-count indictment against the Quirk Trust LLC (trust) and a virtually identical ten-count indictment against its manager, Karl D. Clemmey (Clemmey). The indictments charged the defendants with violations of the Wetlands Protection Act, G.L. c. 131, § 40(Act), in connection with tree clearing and landfilling activities undertaken by Clemmey on portions of the property owned by the trust.

The defendants moved to dismiss the indictments in the Superior Court on two separate grounds: first, that the Commonwealth had impaired the integrity of the grand jury proceedings; and second, that the Legislature had unconstitutionally delegated to the executive branch the responsibility for defining (by regulation) the criminal offenses punishable under the Act.

With respect to the first ground, the defendants argued that the proceedings were impaired because the Commonwealth had failed to inform the jurors that (1) the Act contained an exemption from its provisions for the "normal maintenance or improvement of land in agricultural use"; (2) Clemmey had expressed his belief that the trust property qualified for this exemption, and had acted accordingly; (3) Clemmey had received a certificate from the town of Mansfield to operate a horse farm on the property; and (4) Clemmey had entered into a United States Department of Agriculture (USDA) land user-district cooperative agreement identifying the property as a farm. They also argued that the Commonwealth had exacerbated its failure by (1) introducing evidence that Clemmey was well versed in the governing statutes and regulations, leaving the impression that the land clearly fell within the scope of the Act, that Clemmey knew this to be the case, and that he nevertheless intentionally violated the Act's provisions; and (2) improperly eliciting evidence of prior or irrelevant bad acts committed by Clemmey and others associated with the trust.

As to the second ground, the defendants argued that the separation of powers clause contained in art. 30 of the Massachusetts Declaration of Rights barred the Legislature from delegating to the Department of Environmental Protection (department) the authority to define the terms of the exemption ("normal maintenance or improvement of land in agricultural use") by regulation, and that the resulting regulations should be struck as unconstitutional. Once struck, the defendants contended, the statutory language, "normal maintenance or improvement of land in agricultural use," was unconstitutionally vague as applied to them.

After a nonevidentiary hearing, a judge in the Superior Court dismissed the indictments without prejudice, on the ground that the Commonwealth's failure to inform the grand jury that the Act "contains an agricultural exemption, which specifically exempts from both its civil and criminal prohibitions any and all `work performed for normal maintenance or improvement of land in agricultural use,'" and that Clemmey believed "this exemption applied to his conduct," "undermine[d] the credibility of the evidence and is likely to have affected their decision to indict." Noting that "[t]he prosecutor should have presented this information to the grand jury to allow them to consider the possibility of [Clemmey's] lack of intent to violate the Act as well as the defense of the agricultural exemption," the judge concluded that the appropriate remedy was dismissal. In light of his ruling, the judge did not reach the defendants' unlawful delegation claim.

The Commonwealth appealed, and we transferred the cases to this court on our own motion. We conclude that the prosecutor's failure to inform the grand jury of the Act's agricultural exemption and Clemmey's claimed reliance on it did not impair the grand jury proceedings. Similarly, the elicitation of evidence regarding prior or irrelevant bad acts did not have a significant effect on the grand jury's decision to indict. We further conclude that the Legislature's delegation of authority to the department to promulgate definitional regulations regarding the statutory exemption was sufficiently limited and directed to withstand a constitutional challenge.

1. The governing Act and regulations. General Laws c. 131, § 40, provides for the protection of flood plains, seacoasts, and other wetlands. It states that "[n]o person shall remove, fill, dredge or alter any bank, riverfront area, freshwater wetland, coastal wetland . . . or swamp bordering on the ocean or on any estuary, creek, river, stream, pond, or lake, or any land under said waters . . . without filing written notice of his intention to so remove, fill, dredge or alter . . . and without receiving and complying with an order of conditions. . . ." Id. The notice of intention is filed with the local conservation commission, which can either grant or deny the request, or condition the work on certain stipulations for the protection of, inter alia, wetlands. The Act punishes those who violate its provisions with either criminal penalties—"a fine of not more than twenty-five thousand dollars or by imprisonment for not more than two years, or both such fine and imprisonment"—or "a civil penalty not to exceed twenty-five thousand dollars for each violation."² Id.

The provisions of the Act do not apply to "work performed for normal maintenance or improvement of land in agricultural use." Id. As originally enacted, "[l]and used for agricultural purposes shall be exempt from the provisions of this section." St.1967, c. 802, § 1. The language has been amended several times. In 1972, the exemption applied to "work performed for agricultural purposes," St.1972, c. 784, § 1; in 1974, it was rewritten to read, "to work performed for normal maintenance or improvement of lands for agricultural use," St.1974, c. 818, § 1; in 1975, "in" replaced "for" preceding the phrase "agricultural use." St.1975, c. 363, § 2. In 1991, the Legislature further amended the Act by adding the following paragraph: "Within [120] days . . . the department, upon the advice and consent of the Commissioner of the Department of Food and Agriculture, shall promulgate rules and regulations . . . which shall establish definitions for the term `normal maintenance or improvement of land in agricultural, or in aquacultural use', for each agricultural commodity, or where appropriate because of similarities in cultural practices, groups or commodities in the Commonwealth." St.1991, c. 141, § 2. The amendment also provided that the department "shall create a farmland advisory board to be appointed by the commissioner consisting of five persons one a member of the cooperative extension service, one a member of the USDA soil conservation service, one a member of a municipal conservation commission who has demonstrated expertise in agricultural issues, and two commercial farmers with expertise in different agricultural commodities to assist the department in the drafting of rules and regulations pursuant to this paragraph." Id. Finally, the Legislature required the department to submit its promulgated regulations to the committee on natural resources and agriculture for its review prior to their effective date. St.1991, c. 141, § 4.

In enacting the 1991 amendment, the Legislature explained the original purpose of the exemption, the interpretive and enforcement issues that had frustrated that purpose and made amendment necessary, and how the amendment was intended to further that purpose. The exemption was necessary to balance the need to protect wetlands and other fragile habitats with the "future economic viability of . . . farms [in the Commonwealth]." St.1991, c. 141, § 1. Those farmers, however, "are faced with a growing morass of regulation and restriction which is increasing the cost of farming." Id. Although the Act had exempted "`work performed for normal maintenance or improvement of land in agricultural use[,'] many routine and long standing farm operations [were] being challenged by local and state agencies, creating confusion, frustration and . . . costly delays." Id. In order to correct this problem, the Legislature directed that "a uniform definition" be established "to assist the agricultural community in complying with the [Act] and reducing the current uncertainty that exists." Id.

Pursuant to the Legislature's statutory command, the department promulgated regulations defining the terms "[l]and in agricultural use," "[n]ormal maintenance of land in agricultural use," and "[n]ormal improvement of land in agricultural use." 310 Code Mass. Regs. § 10.04 (1997). Those regulations provide that "[l]and in agricultural use means land within resource areas [wetlands] or the Buffer Zone presently and primarily used in producing or raising one or more of the following agricultural commodities for commercial purposes: 1. animals, including but not limited to livestock, poultry, and bees . . ." (emphasis added). Id. They also provide that "land in agricultural use" means "land. . . presently and primarily used in a manner related to, and customarily and necessarily used in, producing or raising such commodities, including but not limited to: existing access roads and livestock crossings;. . . canals/channels; . . . and land under farm structures" (emphasis added). Id. Of particular significance to the present case, "[l]and in agricultural use may lie inactive for up to five consecutive years." Id.³ The regulatory definitions of ...