HERRICK v. ESSEX Reg'l Ret. Bd.

• Decision Date: 10 September 2010
• Docket Number: No. 09-P-1351.,09-P-1351.
• Citation: 77 Mass.App.Ct. 645,933 N.E.2d 666
• Parties: Robert D. HERRICK v. ESSEX REGIONAL RETIREMENT BOARD & another.
• Court: Appeals Court of Massachusetts

77 Mass.App.Ct. 645

933 N.E.2d 666

Robert D. HERRICK

v.ESSEX REGIONAL RETIREMENT BOARD & another. ¹

No. 09-P-1351.

Appeals Court of Massachusetts,Essex.

Argued April 13, 2010.

Decided Sept. 10, 2010.

COPYRIGHT MATERIAL OMITTED.

Christopher T. Casey, Lynn, for Essex Regional Retirement Board.

H. Ernest Stone, Hamilton, for the plaintiff.

Present: KANTROWITZ, McHUGH, & FECTEAU, JJ.

FECTEAU, J.

The Essex Regional Retirement Board (ERRB) appeals from a Superior Court judgment that reversed the denial of Robert D. Herrick's application for a superannuation retirement. ERRB denied Herrick's application on the ground that he had forfeited his right to a pension due to “moral turpitude” as provided in G.L. c. 32, § 10(1). ² A magistrate in the Division of Administrative Law Appeals (DALA) upheld that decision. The Contributory Retirement Appeal Board (CRAB) affirmed in a divided decision, the majority stating that “the behavior attendant to Herrick's resignation was moral turpitude,” and finding that the phrase “without moral turpitude” could not have been intended by the Legislature to be confined to “removed or discharged” employees. ³ On cross motions for judgment on the pleadings, a Superior Court judge reversed on the ground that CRAB (and the other entities before it) had committed an error of law in their interpretation of c. 32, § 10(1). The judge also disagreed with the alternative ground argued by ERRB that Herrick's pension was forfeited by operation of G.L. c. 32, § 15(4). Notwithstanding that this contention was raised for the first time in Superior Court, the judge considered it, nonetheless, for the sake of completeness. Because we agree that the statute in question does not permit the forfeiture of Herrick's pension, the denial of his application for superannuation retirement benefits was error and must be reversed. Thus, we affirm the judgment.

Background. Briefly, at the time of his retirement, Herrick worked as a maintenance mechanic and custodian for the Wenham Housing Authority (Authority), and through that employment (and prior employment with the town of Hamilton) was a member of ERRB. On May 1, 2003, Herrick was charged with sexually assaulting his daughter. ⁴ That same day he resigned his position with the Authority and, on May 6, 2003, submitted an application for voluntary superannuation retirement pursuant to G.L. c. 32, § 5. ⁵ On May 15, 2003, he pleaded guilty to two counts of indecent assault and battery on a child and was sentenced to two and one-half years in jail, eighteen months of which to serve.

On June 27, 2003, ERRB denied Herrick's application for retirement benefits. Herrick appealed from that decision. A hearing was conducted by a DALA magistrate on July 1, 2004, resulting in a decision affirming ERRB's decision. Herrick then appealed from that decision to CRAB, which affirmed the denial of Herrick's pension application, in a two-to-one decision. Herrick then sought timely judicial review in Superior Court, where both parties filed motions for judgment on the pleadings.

Discussion. This case presents an issue of statutory construction. The standards of law applicable to the issue before us were recently summarized in Tabroff v. Contributory Retirement Appeal Bd., 69 Mass.App.Ct. 131, 133-134, 866 N.E.2d 954 (2007), quoting from Retirement Bd. of Taunton v. Contributory Retirement Appeal Bd., 56 Mass.App.Ct. 914, 915, 778 N.E.2d 536 (2002) (citation omitted): “Massachusetts courts give great deference to decisions of administrative agencies. An administrative agency's interpretation of a statute has long been relied on by Massachusetts courts ‘because of the agency's experience, technical competence, and specialized knowledge.’ ” See Nuclear Metals, Inc. v. Low-Level Radioactive Waste Mgmt. Bd., 421 Mass. 196, 211, 656 N.E.2d 563 (1995), quoting from Cella, Administrative Law & Practice § 747 (1986) (“A State administrative agency in Massachusetts has considerable leeway in interpreting a statute it is charged with enforcing”). While the court recognizes that reasonable interpretations of statutes by agencies are entitled to deference, “[a]n erroneous interpretation of a statute by an administrative agency is not entitled to deference.” Woods v. Executive Office of Communities & Dev., 411 Mass. 599, 606, 583 N.E.2d 845 (1992). “Deference is not abdication. It does not permit a detectable ‘error of law’ by the agency.” Anheuser-Busch, Inc. v. Alcoholic Bevs. Control Commn., 75 Mass.App.Ct. 203, 209, 912 N.E.2d 1034 (2009), quoting from Heineken U.S.A., Inc. v. Alcoholic Bevs. Control Commn., 62 Mass.App.Ct. 567, 572, 818 N.E.2d 191 (2004). “If an agency interpretation were to collide with the plain meaning of a statute, the agency view would have to give way.” Anheuser-Busch, supra at 209, 912 N.E.2d 1034.

“We should not disturb an administrative agency's decision unless we determine ‘that the substantial rights of any party have been prejudiced’ based on one of the reasons set forth in G.L. c. 30A, § 14(7). The deference normally accorded to an administrative agency's decision is no longer appropriate when that agency commits an error of law, G.L. c. 30A, § 14(7)( c ), or its decision is unsupported by substantial evidence, G.L. c. 30A, § 14(7)( e ).” Tabroff, supra at 134, 866 N.E.2d 954 (footnote omitted).

G.L. c. 32, § 10(1). We turn first to the scope of the statute's qualifying phrase “without moral turpitude.” Herrick contends that it applies only to the situation where a member of a public retirement system is “removed or discharged.” The basis on which ERRB denied Herrick's pension application, a determination with which CRAB agreed, is that the phrase “without moral turpitude” modifies all applications for retirement, including those submitted after a member resigns. In a comprehensive and well-reasoned decision, the Superior Court judge disagreed with this interpretation, applying general principles of statutory construction and grammatical rules; she concluded that the qualifier “without moral turpitude” applied only to those removed or discharged from employment, not to all other antecedent phrases in the statute.

As expressed in Collatos v. Boston Retirement Bd., 396 Mass. 684, 686, 488 N.E.2d 401 (1986) (citations omitted), “[a] statute designed to enforce the law by punishing offenders, rather than simply by enforcing restitution to those damaged, is in the nature of a penal statute. Forfeiture of property ... is punitive.” “Penal statutes must be construed strictly ‘and not extended by equity, or by the probable or supposed intention of the legislature as derived from doubtful words; but that in order to charge a party with a penalty, he must be brought within its operation, as manifested by express words or necessary implication.’ ” Id. at 686-687, 488 N.E.2d 401, quoting from Libby v. New York, N.H. & H.R.R., 273 Mass. 522, 525-526, 174 N.E. 171 (1930). “We examine the statute, therefore, particularly mindful that its words are not to be stretched to accomplish a result not expressed.” Collatos, supra at 687, 488 N.E.2d 401.

“A fundamental tenet of statutory interpretation is that statutory language should be given effect consistent with its plain meaning and in light of the aim of the Legislature unless to do so would achieve an illogical result.” Sullivan v. Brookline, 435 Mass. 353, 360, 758 N.E.2d 110 (2001). Agency expertise or policy preference cannot alter the plain meaning of unambiguous statutory language. See especially M.H. Gordon & Son, Inc. v. Alcoholic Bevs. Control Commn., 371 Mass. 584, 588-590, 358 N.E.2d 778 (1976) (courts cannot acquiesce in expedient enlargement of administrative authority or jurisdiction unsupported by statutory terms). See also Commonwealth v. Vickey, 381 Mass. 762, 767, 412 N.E.2d 877 (1980) (“a basic tenet of statutory construction is to give the words their plain meaning in light of the aim of the Legislature, and when the statute appears not to provide for an eventuality, there is no justification for judicial legislation”). “[W]hen the meaning of a statute is at issue, the initial inquiry focuses on the actual language of that statute. ‘Where the language of a statute is clear and unambiguous, it is conclusive as to legislative intent.’ ” Martha's Vineyard Land Bank Commn. v. Board of Assessors of West Tisbury, 62 Mass.App.Ct. 25, 27, 814 N.E.2d 1147 (2004), quoting from Pyle v. School Comm. of S. Hadley, 423 Mass. 283, 285, 667 N.E.2d 869 (1996). “A statute is plain and unambiguous if ‘virtually anyone competent to understand it, and desiring fairly and impartially to ascertain its signification, would attribute to the expression in its context a meaning such as the one we derive, rather than any other; and would consider any different meaning, by comparison, strained, or far-fetched, or unusual, or unlikely.’ ” Martha's Vineyard, supra at 28 n. 4, 814 N.E.2d 1147, quoting from New England Med. Center, Inc. v. Commissioner of Rev., 381 Mass. 748, 750, 412 N.E.2d 351 (1980). “A fundamental and well-established principle of statutory interpretation ‘is that a statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.’ ” Fleet Natl. Bank v. Commissioner of Rev., 448 Mass. 441, 448, 862 N.E.2d 22 (2007), quoting from Hanlon v. Rollins, 286 Mass. 444, 447, 190 N.E. 606 (1934). See Sullivan, supra.

Turning, then, to the words of the statute, as the judge observed: “[t]he ‘rule of the last antecedent’ holds that, unless there is something in the subject matter, dominant purpose, or language of the statute that requires a different interpretation, ‘qualifying phrases are to be applied to the...