Heard: January 8, 2018.
action commenced in the Superior Court Department on January
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.
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.
early 2013, the department announced that it would begin
subjecting prison visitors to search by drug-detecting
dogs. 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. 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.
policy was thereafter implemented. The dogs performing the
searches are not aggressive and remain leashed at all
times.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.
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.
this matter comes before us following a grant of summary
judgment, we look to the summary judgment record and review
de novo. Mil ...