New England Milk Dealers Ass'n, Inc. v. Department of Food and Agriculture

• Decision Date: 22 September 1986
• Citation: 22 Mass.App.Ct. 705,497 N.E.2d 647
• Parties: NEW ENGLAND MILK DEALERS ASSOCIATION, INC. et al. 1 Appeals Court v. DEPARTMENT OF FOOD AND AGRICULTURE.
• Court: Appeals Court of Massachusetts

Page 647

497 N.E.2d 647

22 Mass.App.Ct. 705

NEW ENGLAND MILK DEALERS ASSOCIATION, INC. et al.¹ Appeals Court v. DEPARTMENT OF FOOD AND AGRICULTURE.

Appeals Court of Massachusetts Suffolk.

Argued June 11, 1986.

Decided Sept. 22, 1986.

James C. Gahan, Jr., for plaintiffs.

Douglas H. Wilkins, Asst. Atty. Gen., for defendant.

Before ARMSTRONG, KASS and WARNER, JJ.

KASS, Justice.

On its face, a judge of the Superior Court decided, the complaint in this case was time barred and, accordingly, he allowed a motion to dismiss under Mass.R.Civ.P. 12(b)(1) and (6), 365 Mass. 755 (1974). The case raises the question whether a person seeking review of a regulation promulgated by an administrative agency is bound by a limitation period contained in a statute which prescribes the method for reviewing acts (including regulations) of the agency concerned or may, as an alternative, challenge the regulation by asking for a declaratory judgment.

Under G.L. c. 94A, § 21, as appearing in St.1983, c. 691, § 38, a "person aggrieved by any ... regulation adopted by ... the commissioner [of food and agriculture] may, by petition filed within twenty days after the publication or service of such ... regulation ..., obtain a review by the superior court of the proceedings of the commissioner on which such ... regulation ... was based." According to their complaint, the plaintiffs, a trade association of milk dealers and a licensed milk dealer (hereinafter collectively called "the milk dealers"), are aggrieved by a regulation, 330 Code Mass.Regs. 21 (1984), which requires certain record-keeping and reports. That regulation was published in the Massachusetts Register on November 8, 1984. The milk dealers brought no action within twenty days under G.L. c. 94A, § 21; rather, on December 21, 1984, forty-three days after publication, they filed a complaint for declaratory judgment. Although it was not pleaded in the complaint, the judge took into account that the milk dealers (they so asserted in a memorandum to the motion judge) did not receive a complete copy of the regulation until November 28, 1984. If one calculates from that date, the milk dealers' complaint still was not filed within the twenty-day limit set by G.L. c. 94A, § 21, for claiming judicial review of administrative agency action under the milk control law, G.L. c. 94A.

To avoid the strictures of the twenty-day limitation period, the milk dealers rely on § 7 of the State Administrative Procedure Act (G.L. c. 30A), which provides that "[u]nless an exclusive mode of review is provided by law, judicial review of any regulation ... may be had through an action for declaratory relief...." G.L. c. 30A, § 7, as appearing in St.1974, c. 361, § 3.

In the literal sense of the word "exclude," i.e., shutting out (see Webster's New Intl. Dict. 793 [3d ed. 1971] ), there is no express language in § 21 which bars other avenues of review. Yet § 21 sets out a particularized method of judicial review of milk control law adjudicatory proceedings and rule making, including a limitation period, method of service, specification of what the record shall contain, and limitations on preliminary injunctive relief. It provides that "[n]o objection not urged before the commissioner shall be considered in review," thus imposing an exclusivity of agenda. We are of opinion that a review procedure so carefully designed as to its procedural details is an "exclusive mode of review" within the meaning of G.L. c. 30A, § 7. The handiwork of the Legislature in enacting G.L. c. 94A, § 21, would be a nullity if alternate review offering different limitation periods, different specifications for the record, and a different scope of relief were available. See East Chop Tennis Club v. Massachusetts Commn. Against Discrimination, 364 Mass. 444, 450, 305 N.E.2d 507, (1973). A legislative design of the sort drawn here may not be construed in a manner which renders it essentially meaningless or superfluous. See International Organization of Masters, Mates & Pilots v. Woods Hole, Martha's Vineyard & Nantucket S.S. Authy., 392 Mass. 811, 813, 467 N.E.2d 1331 (1984); Devaney v. Watertown, 13 Mass.App.Ct. 927, 928, 430 N.E.2d 1237 (1982).

Our view as to the exclusivity of G.L. c. 94A, § 21, as the avenue of review in this case is reinforced by the requirement of G.L. c. 94A, § 19(a)(2), as appearing in St. 1983, c. 691, § 36, that notice of a general hearing be provided by mail "to each licensee deemed by the commissioner to be affected thereby." In consequence there is a higher assurance that all persons concerned will have been alerted to and partaken in the rule making proceedings. There is reason to conclude that the specially alerted participants were to be bound to a prescribed limitation period. Compare the general notice requirements of the State Administrative Procedure Act which appear in G.L. c. 30A, § 3. We also take as an indicator of conscious policy the recognition accorded by the Legislature to the milk control law in adopting the State Administrative Procedure Act and, conversely, to the State Administrative Procedure Act when recently amending the milk control law. Thus, when in 1954 the State Administrative Procedure Act was established, St.1954, c. 681, § 7, expressly took account of G.L. c. 94A, § 21, and inserted in it a provision that "[t]he order, rule, regulation or decision ... shall be reviewed in accordance with the standards for review provided in" what was then G.L. c. 30A, § 14(8). When by St.1983, c. 691, the Legislature reorganized the Department of Food and Agriculture, § 38 of that act rewrote § 21 of c. 94 A and restated the reference to the standards of review in § 14 of the Administrative Procedure Act. ² We are warranted in concluding, therefore, that the § 21 review procedure is not a vestigial hangover from the time of its original enactment in 1941.

The express reference by the Legislature to G.L. c. 94A, § 21, in St.1954, c. 681, stands in contrast, for example, to G.L. c. 25, § 5 (review of rulings of the Department of Public Utilities), which was not mentioned in the 1954 act. Indeed, the scope of G.L. c. 25, § 5, and its applicability to general regulations was doubtful; hence a request for a declaratory judgment was an available and prudent mode of judicial review of regulations promulgated by the Department of Public Utilities. Cambridge Elec. Light Co. v. Department of Pub. Util., 363 Mass. 474, 502-503, 295 N.E.2d 876, (1973). See also Newton v. Department of Pub. Util., 339 Mass. 535, 544, 160 N.E.2d 108 (1959), comparing review under G.L. c. 25, § 5, which accords rights only to parties in interest, with the more plenary avenue of review under G.L. c. 94A, § 21, which is open to "[a]ny person aggrieved" and by its terms includes review of rule making. Unlike the uncertainty expressed by parties in the Cambridge Elec. Light Co. case, there has not been confusion in past instances as to the path to follow when challenging a regulation promulgated under the milk control law. See, e.g., Dacey v. Milk Control Commn., 340 Mass. 681, 683, 166 N.E.2d 362 (1960). A party in the Dacey case, coincidentally was Cumberland Farms, Inc. (as intervener), represented by the same lawyer who appears on its behalf in the instant case. In Dacey and a related case, Cumberland Farms, Inc. v. Milk Control Commn., 340 Mass. 672, 166 N.E.2d 356, (1960), the court reviewed milk control regulations under § 21 on both substantive and procedural grounds. On the authority of those cases we conclude that the "review ... of the proceedings of the commissioner" language in § 21 implies plenary review. When a direct and distinct path of review is available, as is the case under G.L. c. 94A, § 21, "[i]t is ordinarily not appropriate to grant declaratory relief...." Hathaway v. Commissioner of Ins., 379 Mass. 551, 553, 399 N.E.2d 862 (1980).

Particularly, in the absence of special circumstances, usually ones involving a question of broad and acute public interest, declaratory relief should not be used to circumvent a period prescribed by statute for obtaining judicial review. Second Church in Dorchester v. Boston, 343 Mass. 477, 479 & n. 1, 179 N.E.2d 598 (1962). Goldman v. Planning Bd. of Burlington, 347 Mass. 320, 326, 197 N.E.2d 789 (1964). School Comm. of Franklin v. Commissioner of Educ., 395 Mass. 800, 807-808, 482 N.E.2d 796 (1985). Boston v. Second Realty Corp., 9 Mass.App.Ct. 282, 284-285, 400 N.E.2d 876 (1980). Stripinis v. Whitman-Hanson Reg. Dist. Sch. Comm., 9 Mass.App.Ct. 819, 398 N.E.2d 509 (1980). Kaufman v. School Comm. of Boston, 18 Mass.App.Ct. 909, 909-910, 463 N.E.2d 1195 (1984). The establishment of a time limitation for judicial review of administrative agency action does, after all, stand as a legislative judgment that it is in the public interest that agency action be authoritative and certain if it is not challenged within the prescribed time. See Natural Resources Defense Council v. Nuclear Regulatory Commn., 666 F.2d 595, 602 (D.C.Cir.1981), which speaks of the important purpose of limitation periods for judicial review to impart finality into the administrative process and to protect "the reliance interests of regulatees who conform their conduct to the regulations." A number of ...