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Carey v. Commissioner of Correction

Supreme Judicial Court of Massachusetts, Suffolk

April 19, 2018

MICHAEL CAREY & others[1]
v.
COMMISSIONER OF CORRECTION.

          Heard: January 8, 2018.

         Civil action commenced in the Superior Court Department on January 2, 2014.

         The case was heard by Joseph F. Leighton, Jr., J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          Leonard M. Singer for the plaintiffs.

          William D. Saltzman for the defendant.

          Present: Gants, C.J., Lowy, Budd, Cypher, & Kafker, JJ.

          BUDD, J.

         In 2013, the Department of Correction (department) announced that visitors to correctional facilities would be subject to search by drug-detecting dogs. The plaintiffs, who are visitors to correctional facilities who are not attorneys, allege that this canine search policy (policy) violated the department's existing regulations and that the department failed to follow requirements of the Administrative Procedure Act (APA), G. L. c. 30A, §§ 1 et seq., in implementing this new policy. The defendant Commissioner of Correction (commissioner) contends that the policy is consistent with the department's existing regulations and is exempt from the APA. We conclude that although the policy is not inconsistent with the department's existing regulations, it is not exempt from the APA. Given the policy's substantial impact on institutional security, however, entry of judgment shall be stayed for 180 days to permit the department to take action consistent with this opinion, during which time the department may continue to enforce the policy.

         1. Background.

         In early 2013, the department announced that it would begin subjecting prison visitors to search by drug-detecting dogs.[2] The plaintiffs commenced this action to prevent the department from implementing the new policy. The plaintiffs sought a judgment declaring that the policy was not authorized by the department's existing regulations, as well as a preliminary injunction to enjoin the department from implementing the policy without its being promulgated pursuant to the APA.[3] A judge in the Superior Court denied the plaintiffs' motion for a preliminary injunction, concluding that the wording of the regulation governing visits by members of the general public was broad enough to allow for canine searches.

         The policy was thereafter implemented. The dogs performing the searches are not aggressive and remain leashed at all times.[4]They "alert" to the presence of a banned substance by sitting; they do not snarl, lunge, or bite. There are alternative procedures for those visitors who are allergic to, or afraid of, dogs.

         A second Superior Court judge granted summary judgment for the commissioner, entering a judgment declaring that the commissioner had the authority to establish the policy without having to comply with the procedural requirements of the APA because the policy is "sufficiently similar to the searches specifically enumerated in the regulatory language." The instant appeal followed. We transferred the case to this court on our own motion.

         2. Discussion.

         Because this matter comes before us following a grant of summary judgment, we look to the summary judgment record and review de novo. Mil ...


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