Harris v. Board of Registration in Chiropody (Podiatry)

• Citation: 343 Mass. 536,179 N.E.2d 910
• Parties: Richard HARRIS v. BOARD OF REGISTRATION IN CHIROPODY (PODIATRY).
• Decision Date: 06 February 1962
• Court: United States State Supreme Judicial Court of Massachusetts

Page 910

179 N.E.2d 910

343 Mass. 536

Richard HARRIS v. BOARD OF REGISTRATION IN CHIROPODY (PODIATRY).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 6, 1961.

Decided Feb. 6, 1962.

Morris Michelson, Boston, for petitioner.

Edward J. McCormack, Jr., Atty. Gen., and Pasquale J. Piscitelli, Asst. Atty. Gen., for respondent, submitted a brief.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE and SPIEGEL, JJ.

WHITTEMORE, Justice.

The Board of Registration in Chiropody (Podiatry) (G.L. c. 13, § 12A) on September 14, 1960, revoked the license of the petitioner (Harris) to practise 'chiropody (podiatry)' (hereinafter referred to as chiropody). Harris sought review under G.L. c. 112, § 64. ¹ The single justice reported the case without decision.

This is the second petition for review. On the first petition a single justice on December 9, 1960, remanded the proceedings to the board because of inadequate findings. The order for remand provided: 'After remand, the board may wish (a) to reopen the hearings to supplement the evidence; or (b) to adopt rules and regulations after full and certain compliance with c. 30A, § 3; or (c) to afford further opportunities for presentation of contentions perhaps not fully made in behalf of the petitioner; or (d) to place upon the record indications of any matters of which the board has taken or proposes to take judicial notice; or (e) perhaps to obtain further testimony, expert or otherwise, of what in relevant respects are proper standards of professional diagnosis, treatment, and conduct.'

The board on March 8, 1961, in a letter to Harris made further detailed findings. It did not adopt any of the permissive suggestions of the remand order.

1. Harris contends that the order of the board was 'made upon unlawful procedure' (G.L. c. 30A, § 14 [d]). His first specification is that there were no proper regulations. General Laws c. 30A (State Administrative Procedure Act), § 9, provides: 'Each agency shall adopt regulations governing the procedures prescribed by this chapter.' Section 3 requires that, prior to the adoption of regulations of the sort adopted, the agency 'shall give notice and afford interested persons an opportunity to present data, views or arguments' by publication in newspapers and, where appropriate, in 'trade, industry or professional publications' and by notice to 'any person specified by any law' and 'any person or group filing written request' 'for notice of proposed action which may affect that person or group.' 'The agency shall afford interested persons an opportunity to present data, views or arguments in regard to the proposed action orally or in writing.' All these requirements, however, may be made inapplicable in respect of proposed action by a finding of the agency that they 'are unnecessary, impracticable or contrary to the public interest.' The board admits the allegations of the petition to the effect that the board adopted its rules and regulations governing hearings after its first notice to Harris of a hearing and after request from his attorney for opportunity to be heard in respect of adoption of the rules; and adopted the rules at an executive session from which the attorney, although present at the place and wanting to be heard, was excluded. A preliminary paragraph of the rules and regulations in evidence recites that the board 'provides [sic] that the requirements of notice and opportunity to present views * * * are unnecessary and impracticable and hereby dispenses with such requirements * * * [for the] reasons * * * that said proposed regulations are of such routine and noncontroversial character that even the machinery for notice and opportunity to present views is too cumbersome.'

It was open to the board to find in accordance with G.L. c. 30A, § 3, that it was 'unnecessary' to give notice and a chance to be heard in respect of the adoption of rules and regulations for the conduct of hearings. The Legislature gave wide discretion to the board but, in so doing, it showed recognition of the fairness and wisdom of allowing interested parties to be heard. In the circumstances it would have been appropriate and in keeping with the general intent of the statute to have given Harris's attorney the opportunity to present his suggestions orally or in writing. The failure to do this was not, however, error of law.

The regulations adopted do little more than paraphrase the requirements of G.L. c. 30A, § 11. They appear scarcely adequate to serve the purposes contemplated by the statute. It does not appear, however, that Harris was deprived of any right, or was prejudiced, because of their insignificance.

2. There is substance, however, in Harris's specifications in respect of the conduct of the hearing. From the start, and throughout, the requests and statements of Harris's attorney in respect of the alleged absence of legal rules and the...