Commissioner of Public Health v. Bessie M. Burke Memorial Hospital

• Decision Date: 05 February 1975
• Citation: 323 N.E.2d 309,366 Mass. 734
• Parties: COMMISSIONER OF PUBLIC HEALTH v. The BESSIE M. BURKE MEMORIAL HOSPITAL et al. 1 , Winchendon Hospital, Inc., Intervener.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 309

323 N.E.2d 309

366 Mass. 734

COMMISSIONER OF PUBLIC HEALTH v. The BESSIE M. BURKE MEMORIAL HOSPITAL et al.

¹

, Winchendon Hospital, Inc., Intervener.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 10, 1974.

Decided Feb. 5, 1975.

Kenneth A. Behar, Asst. Atty. Gen. (David W. Rosenberg, Boston, with him), for Com'r of Public Health.

Edward J. Grimley, Jr., Asst. City Sol., for The Bessie M. Burke Memorial Hospital and another.

John L. Saltonstall, Jr., Boston, for Winchendon Hospital, Inc., intervener.

John F. Donovan, Jr., Boston, for the House of Representatives, and Albert S. Previte, Jr., Lawrence, pro se, amici curiae, submitted briefs.

Before TAURO, C.J., and REARDON, QUIRICO, HENNESSEY and KAPLAN, JJ.

KAPLAN, Justice.

To prevent unnecessary expansion of health care facilities in the Commonwealth and encourage appropriate allocation of resources for health care purposes, legislation was passed forbidding substantial new construction of such facilities except upon application to the Department of Public Health and administrative 'determination' of 'need.' The two hospitals involved in the present case each applied for a determination with respect to a desired construction project; the determination was unfavorable as to one hospital, and as to the other was favorable only in part. The Legislature then in each instance enacted a statute which, without in terms repealing the general statute, in effect directed the department to make the determination that would enable the hospital to carry out its project. The question raised is whether such a direction by the Legislature, singling out a particular hospital for favorable treatment, encounters any constitutional obstacle. In more detail, the case in as follows.

The Bessie M. Burke Memorial Hospital (Burke Hospital), a municipal hospital of the city of Lawrence, has for some years been interested in renovating its facilities, and in October, 1970, the Department of Public Health indicated approval of the hospital's plan of renovation as a step, apparently, toward securing funding for the construction. Statute 1971, c. 596, was approved on August 5, 1971, authorizing the city to borrow up to $1,500,000 to finance the work, and the city thereupon approved the funding, called for bids, and on November 23, 1971, entered into a contract with a construction company. Evidently the city officials were not aware of the fact that St.1971, c. 1080, had been enacted into law and became effective several days earlier, on November 15, 1971; when this came to their attention they suspended work under the contract.

Chapter 1080, entitled 'An Act to prevent unnecessary expansion of health care facilities during the period ending (May 31, 1972),' required, as a condition of commencing construction of a new health care facility, or commencing construction renovating an existing facility, which in either case would call for a capital expenditure of $100,000 or more, that the Department of Public Health make a 'determination' that there was a 'need' therefor. The statute made provision for application, hearing, and reference of the proposal to certain agencies for comment, as predicates for the departmental determination which was to set forth reasons. Acknowledging that its planned construction was within the statute, Burke Hospital applied on December 29, 1971, for the necessary determination. The application was denied on April 11, 1972, by the department's public health council, which concurred in a negative recommendation of the Merrimack Valley Health Planning Council. ² Regulations permitted an intradepartmental appeal, and such an appeal was taken by Burke Hospital by letter of May 5, 1972. On June 1, 1972, however, permanent legislation became effective--St.1972, c. 776, constituting G.L. c. 111, §§ 25B--25G, and superseding the 1971 statute. As the new legislation established a health facilities appeals board as a board of review (see c. 776, § 1), Burke Hospital's appeal was forwarded to that board. But the board on December 20, 1972, remitted the appeal and others like it to the Commissioner, stating that it lacked jurisdiction to hear them because the determinations as to need were made before June 1, 1972.

The record does not disclose whether Burke Hospital took any further steps to secure a favorable determination within the department. It did not seek judicial review of the negative determination. ³ Resort was had to the Legislature, which on October 17, 1973, enacted St.1973, c. 923, as an emergency law. This states that, '(n)otwithstanding the provisions of . . . (St.1972, c. 776), or any other contrary provision of law, the commissioner of public health is hereby authorized and directed to issue a certificate of need and a temporary hospital license ⁴ to the city of Lawrence for the continued operation of the Bessie M. Burke Memorial Hospital. . . . Said city of Lawrence is hereby authorized and directed to expend such sums of money as were authorized by . . . (St.1971, c. 596) to remodel, reconstruct, enlarge, make extraordinary repairs to, re-equip and refurnish said Bessie M. Burke Memorial Hospital.' The relevant bill (H. 7496) had been first returned by the Governor with the recommendation that provision be made, instead, for review by the hospital facilities appeals board so that all facilities would be treated equally. The Legislature did not heed the recommendation. The Governor then returned the bill without his approval (H. 7653) noting the Attorney General's adverse criticisms of it, including the main objection that it violated art. 30 of the Declaration of Rights of the Massachusetts Constitution regarding the separation of powers. ⁵ The veto was overridden by the necessary votes in both Houses.

The present case by the Commissioner of Public Health against Burke Hospital and the city of Lawrence seeks a declaration that the 1973 enactment, requiring the Commissioner to take the action therein specified, is unconstitutional as violating, besides art. 30, the 'standing laws' provision of art. 10 of the Declaration of Rights, and the Fourteenth Amendment to the United States Constitution.

Upon consent of the parties, Winchendon Hospital, Inc., was permitted to intervene in the case to present a cognate controversy. This hospital, a charitable corporation under Massachusetts law, on August 13, 1973, filed its application pursuant to the permanent law, G.L. c. 111, § 25C, for a determination of need to neable it to construct a new health facility in Winchendon to replace the existing hospital. The permanent legislation need not be described in full here, except to say that, in comparison with the temporary statute, it adds and refines definitions, ⁶ elaborates procedures, and has a calculated statement of the object of the system of determinations of need. ⁷ The introduction of the health facilities appeals board--independent of the Department itself--has already been mentioned. Regulations were promulgated under the new statute in June, 1973, amplifying procedures and standards. Presented under the new statute and regulations, Winchendon Hospital's application of August 13, 1973, sought authority to construct an ambulatory care center with four intensive care beds, a fifty-two bed extended care facility, and a twenty-six bed acute care facility. On November 13, 1973, the Commissioner and the public health council (see St.1972, c. 776, § 2A) voted on the application, transmitting the result to the applicant on January 8, 1974. There was a determination of need for the ambulatory care center (but without the four intensive care beds), and for the extended care facility, but no need was found for the acute care facility. ⁸ Winchendon Hospital took an appeal to the health facilities appeals board. ⁹ But it had already traveled the legislative route, for on November 19, 1973, St.1973, c. 1053, was enacted over the Governor's veto, providing that, '(n)otwithstanding the provisions of . . . (c. 111, § 25C) or any other general or special law, the department of public health is hereby authorized and directed to make a determination of need as set forth in said . . . (c. 111, § 25C) as to the project described . . . (in Winchendon Hospital's application) and to approve said project.' ¹⁰ The Governor's message had noted (among other things) that a constitutional problem arose here as in the case of Burke Hospital and that the measure was one of a number of attempts in 1973 to secure exceptions from the general law. See S. 2033 with respect to S. 1938, amended.

The Commissioner of Public Health seeks as against the intervener a declaration of the unconstitutionality of St.1973, c. 1053, paralleling that sought against Burke Hospital and the city of Lawrence with regard to St.1973, c. 923. The case, lodged in the county court, is here on a reservation and report, without decision, by a single justice of this court, and the narrative given above sufficiently digests the pleadings, stipulation, and statement of agreed facts. In addition to briefs by the parties the counsel to the House of Representatives has filed a brief as a friend of the court supporting the constitutionality of the two enactments.

By his reference to art. 10 of the Declaration of Rights the Commissioner argues that the statutes he attacks are objectionable because they create singular exceptions to or exemptions from general law. His argument from art. 30 changes the emphasis and says that the legislative command to him to make the determinations of need involves the Legislature in a trespass on functions forbidden to it in a tripartite system of government.

The Legislature has power, exemplified many times, to enact special or private laws, here meaning, very roughly, legislation addressed to a particular situation, that does not establish a rule of future conduct with any substantial degree of generality, and may provide ad hoc benefits of...