Massachusetts Appeals Court Case: 2020-P-0908 Filed: 10/30/2020 1:09 PM
COMMONWEALTH OF MASSACHUSETTS
Appeals Court SUFFOLK, SS. NO. 2020-P-0908
SALVATORE F. DIMASI, Plaintiff-Appellee,
v.
WILLIAM F. GALVIN, Defendant-Appellant.
ON APPEAL FROM A FINAL JUDGMENT OF THE SUFFOLK COUNTY SUPERIOR COURT
BRIEF OF THE DEFENDANT-APPELLANT
MAURA HEALEY Attorney General Julia E. Kobick, BBO # 680194 Assistant Attorney General Government Bureau One Ashburton Place Boston, Massachusetts 02108 (617) 963-2559 email: [email protected]
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TABLE OF CONTENTS
TABLE OF AUTHORITIES...... 4
STATEMENT OF THE ISSUE...... 11
STATEMENT OF THE CASE...... 11
Nature of the Case...... 11
Statutory Background...... 12
Factual Background...... 17
1. DiMasi’s Criminal Conduct and Convictions...... 17
2. The Secretary’s Rejection of DiMasi’s Lobbyist Registration and the Presiding Officer’s Affirmance on Administrative Review...... 21
3. The Superior Court’s Decision...... 24
SUMMARY OF THE ARGUMENT...... 26
ARGUMENT...... 30
I. The Superior Court Erred in Declining to Defer to the Secretary’s Reasonable Construction of Section 45(m)...... 30
A. Section 45(m) Is, At Best, Ambiguous...... 32
1. The Statutory Phrase “Shall Automatically Disqualify” is Susceptible to Different Interpretations...... 33
2. The Superior Court Disregarded Canons of Statutory Construction that Support the Secretary’s Reading of Section 45(m)...... 39
a. The Superior Court’s Construction Rendered an Important Part of
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Section 45(m) Meaningless...... 39
b. The Superior Court’s Construction Undermines Legislative Intent and Results in Absurd Consequences...... 44
B. The Secretary’s Interpretation of Section 45(m) Is Reasonable and Warrants Deference...... 50
II. The Secretary Correctly Determined that, in Accordance with Section 45(m), DiMasi’s Felony Convictions Automatically Disqualify Him from Registering as a Lobbyist Until June 2021...... 54
CONCLUSION...... 56
CERTIFICATE OF COMPLIANCE...... 58
CERTIFICATE OF SERVICE...... 58
ADDENDUM...... 59
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TABLE OF AUTHORITIES
Cases
Adamowicz v. Ipswich, 395 Mass. 757 (1985)...... 40
AT&T v. Automatic Sprinkler Appeals Bd., 52 Mass. App. Ct. 11 (2001)...... 31, 52
Banushi v. Dorfman, 438 Mass. 242 (2002)...... 39-40
Biogen IDEC MA, Inc. v. Treasurer & Receiver Gen., 454 Mass. 174 (2009)...... 51, 54
Blue Hills Cemetery, Inc. v. Bd. of Registration in Embalming & Funeral Directing, 379 Mass. 368 (1979)...... 13
Boston Police Patrolmen’s Ass’n, Inc. v. City of Boston, 435 Mass. 718 (2002)...... 41
Bridgewater State Univ. Found. v. Bd. of Assessors of Bridgewater, 463 Mass. 154 (2012)...... 30, 44-45
Briggs v. Commonwealth, 429 Mass. 241 (1999)...... 32
Brookline v. Comm’r of Dept. of Envtl. Quality Eng’g, 398 Mass. 404 (1986)...... 32, 51
Casseus v. E. Bus Co., Inc., 478 Mass. 786 (2018)...... 45
Chardin v. Police Comm’r of Boston, 465 Mass. 314 (2013)...... 48
City of Worcester v. College Hill Props., LLC, 465 Mass. 134, 145 (2013)...... 45
Cohen v. Liberty Mut. Ins. Co., 41 Mass. App. Ct. 748 (1996)...... 31
Collatos v. Boston Retirement Bd., 396 Mass. 684 (1986)...... 47, 48, 49 4
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Comm’r of Correction v. Superior Ct. Dept. of the Trial Ct., 446 Mass. 123 (2006)...... 43
Commonwealth v. Hill, 57 Mass. App. Ct. 240 (2003)...... 40
Commonwealth v. Pagan, 445 Mass. 315 (2005)...... 25, 33, 44
Commonwealth v. Pon, 469 Mass. 296 (2014)...... 13
Commonwealth v. Tobin, 392 Mass. 604 (1984)...... 55
Commonwealth v. Zawatsky, 41 Mass. App. Ct. 392 (1996)...... 41
Connors v. Annino, 460 Mass. 790 (2011)...... 39
DaSilveira v. Police Comm’r of Boston, 97 Mass. App. Ct. 1120 (2020)...... 37
DiMasi v. State Bd. of Retirement, 474 Mass. 194 (2016)...... 31
Dupont v. Chief of Police of Pepperell, 57 Mass. App. Ct. 690 (2003)...... 37, 48
ENGIE Gas & LNG LLC v. Dep’t of Pub. Utils., 475 Mass. 191 (2016)...... 31, 39
Fid. & Deposit Co. of Maryland v. Sproules, 60 Mass. App. Ct. 93 (2003)...... 36, 47
Franklin Office Park Realty Corp. v. Comm’r of Dept. of Envtl. Prot., 466 Mass. 454 (2013)...... 32, 44, 51
Gaffney v. Contributory Ret. Appeal Bd., 423 Mass. 1 (1996)...... 37
Goldberg v. Bd. of Health of Granby, 444 Mass. 627 (2005)...... 32, 44, 51
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Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1 (D.C. Cir. 2019)...... 33-34, 35, 38-39
Home Depot v. Kardas, 81 Mass. App. Ct. 27 (2011)...... 17
Jackson v. Longcope, 394 Mass. 577 (1985)...... 17
Lazlo L. v. Commonwealth, 482 Mass. 325 (2019)...... 13
Lindsay v. Dep’t of Soc. Servs., 439 Mass. 789 (2003)...... 52
Nationwide Mut. Ins. Co. v. Comm’r of Ins., 397 Mass. 416 (1986)...... 31
North Shore Realty Trust v. Commonwealth, 434 Mass. 109 (2001)...... 45
Pereira v. New England LNG Co., 364 Mass. 109 (1973)...... 13
Phillips v. Equity Residential Mgmt., L.L.C., 478 Mass. 251 (2017)...... 39, 40
Retirement Bd. of Somerville v. Buonomo, 467 Mass. 662 (2014)...... 31, 37, 48
Robinson v. Contributory Ret. Appeal Bd., 62 Mass. App. Ct. 935 (2005)...... 36
Skilling v. United States, 561 U.S. 358 (2010)...... 21
United States v. McDonough, 737 F.3d 143 (1st Cir. 2013).....17, 18, 19, 20, 21, 45, 55, 56
United States v. Turner, 684 F.3d 244 (1st Cir. 2012)...... 45
United States v. Wilkerson, 675 F.3d 120 (1st Cir. 2012)...... 13, 45-46
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Wallace W. v. Commonwealth, 482 Mass. 789 (2019)...... 13
Wheatley v. Mass. Insurers Insolvency Fund, 456 Mass. 594 (2010)...... 39
Zoning Bd. of Appeals of Amesbury v. Housing Appeals Committee, 457 Mass. 748 (2010)...... 32
Statutes
18 U.S.C. § 201...... 55
18 U.S.C. § 371...... 17
18 U.S.C. § 1341...... 17
18 U.S.C. § 1343...... 17
18 U.S.C. § 1346...... 17, 55
18 U.S.C. § 1951...... 18
42 U.S.C. § 1983...... 24
G.L. c. 3 ...... passim
G.L. c. 3, § 39...... 14-15, 16
G.L. c. 3, § 45...... 24, 36
G.L. c. 3, § 45(a)...... 22
G.L. c. 3, § 45(m)...... passim
G.L. c. 3, § 50 ...... 16
G.L. c. 30A, § 14 ...... 24
G.L. c. 32, § 15(3A)...... 47
G.L. c. 32, § 15(4)...... 36, 37
G.L. c. 55 ...... passim
G.L. c. 55, § 2 ...... 41 7
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G.L. c. 55, § 3 ...... 41
G.L. c. 55, § 5 ...... 41
G.L. c. 55, § 6 ...... 41
G.L. c. 55, § 7 ...... 41
G.L. c. 55, § 8 ...... 41
G.L. c. 55, § 9 ...... 41
G.L. c. 55, § 10 ...... 41
G.L. c. 55, § 11 ...... 41
G.L. c. 55, § 12 ...... 41
G.L. c. 55, § 13 ...... 41
G.L. c. 55, § 14 ...... 41
G.L. c. 55, § 15 ...... 41
G.L. c. 55, § 16...... 41
G.L. c. 55, § 16A...... 41
G.L. c. 55, § 16B...... 41
G.L. c. 55, § 17...... 41
G.L. c. 55, § 18...... 41
G.L. c. 55, § 18B...... 41
G.L. c. 55, § 18G...... 41
G.L. c. 55, § 22 ...... 41
G.L. c. 55, § 22A...... 41
G.L. c. 55, § 23...... 41
G.L. c. 140, § 121...... 38
G.L. c. 140, § 131(d)...... 37, 48 8
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G.L. c. 140, § 131(d)(i)(A)...... 48
G.L. c. 140, § 131(d)(i)(C)...... 38
G.L. c. 231A...... 24
G.L. c. 249, § 4...... 24
G.L. c. 268A ...... passim
G.L. c. 268A, § 2...... 23, 54
G.L. c. 268A, § 2(b)...... 23, 29, 55, 56
G.L. c. 268A, § 2(b)(1)...... 55
G.L. c. 274, § 1...... 40
St. 1973, c. 981, § 1...... 16
St. 2009, c. 28...... 14, 15
Miscellaneous
Advances: Week of March 29, 2009, STATE HOUSE NEWS SERVICE (Mar. 27, 2009) ...... 53
Black’s Law Dictionary (11th ed. 2019)...... 34
K. Cheney et al., As Ethics Bill Emerges, All Eyes on Patrick, STATE HOUSE NEWS SERVICE (June 24, 2009) ....13, 15, 53
Docket Sheet, United States v. DiMasi et al., No. 09-10166-MLW (D. Mass.)...... 21
GOVERNOR’S TASK FORCE ON PUBLIC INTEGRITY: REPORT AND RECOMMENDATIONS (Jan. 6, 2009) ...... 12-13, 14, 36
Haunted by Specter of DiMasi, House Tries to Move On, STATE HOUSE NEWS SERVICE (June 3, 2009) ...... 13
House Session – Thursday, March 26, 2009, STATE HOUSE NEWS SERVICE (Mar. 26, 2009) ....15, 16, 53
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Indictment, United States v. DiMasi et al., No. 09-10166-MLW (D. Mass.)...... 17
Indictment, United States v. Joyce, No. 1:17-cr-10378-NMG (D. Mass.)...... 46
Jury Verdict, United States v. DiMasi et al., No. 09-10166-MLW (D. Mass.)...... 21
R. Murray, M. Tassinari & B. Fierro III, MASS. ELECTION ADMIN. CAMPAIGN FINANCE, & LOBBYING LAW (MCLE Inc. 4th ed. 2016)...... 16
J. O’Sullivan et al., DiMasi, Three Associates Indicted on Raft of Federal Corruption Charges, STATE HOUSE NEWS SERVICE (June 2, 2009) ...... 17-18
State Capitol Briefs (Afternoon Edition) – Wednesday, June 24, 2009, STATE HOUSE NEWS SERVICE (June 24, 2009) ...... 13
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STATEMENT OF THE ISSUE
Whether the appellant, Secretary William F. Galvin, properly concluded that, pursuant to G.L. c. 3, § 45(m), the appellee, former Speaker of the House Salvatore F.
DiMasi, is automatically disqualified from registering as a state lobbyist for ten years from the date of his federal felony convictions.
STATEMENT OF THE CASE
Nature of the Case
Salvatore F. DiMasi, formerly the Speaker of the
Massachusetts House of Representatives, was convicted in
2011 of multiple federal crimes related to schemes to exchange political favors for large sums of money. After serving five years in prison, he sought to register as a lobbyist with William F. Galvin, the Secretary of the
Commonwealth of Massachusetts. The Secretary notified
DiMasi that, pursuant to G.L. c. 3, § 45(m), he is disqualified from engaging in state lobbying until June
2021, or ten years from the date of his conviction.
Section 45(m) provides that the “state secretary shall automatically disqualify any person convicted of a felony in violation of chapter 3, chapter 55, or chapter
268A from acting or registering as an executive or
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legislative agent for a period of 10 years from the date of conviction.” G.L. c. 3, § 45(m).
An administrative Presiding Officer upheld the disqualification, explaining that Section 45(m) covers persons convicted of felonies for conduct proscribed by chapters 3, 55, and 268A of the Massachusetts General
Laws, even if the forum of conviction was federal court.
On judicial review, the Superior Court (Gordon, J.) disagreed with the Secretary Galvin’s and the Presiding
Officer’s interpretation of Section 45(m). The court concluded that Section 45(m) unambiguously requires disqualification only of applicants with state-court convictions for felonies specifically enumerated in chapters 3, 55, and 268A. The court therefore reversed the Presiding Officer’s decision and the Secretary’s order notifying DiMasi that he is disqualified.
Statutory Background
Section 45(m) was enacted in 2009 as part of a sweeping set of reforms intended to strengthen the
Commonwealth’s rules governing lobbying, ethics, and campaign finance regulation. See GOVERNOR’S TASK FORCE ON
PUBLIC INTEGRITY: REPORT AND RECOMMENDATIONS, at 1-2 (Jan. 6,
2009) (hereinafter “TASK FORCE REPORT”) (Record Appendix
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Volume II:52-53).1 The reforms were first proposed by a
Task Force convened by Governor Deval Patrick in October
2008, in the wake of the prosecution of former state
Senator Dianne Wilkerson, who had pleaded guilty to
federal corruption charges.2 After synthesizing research
and ideas on “needed improvements to the ethics and
lobbying laws,” the Task Force issued a lengthy report and made a number of recommendations that, it hoped,
1 The Record Appendix will hereinafter be cited as “RA [volume number]:[page number].”
2 See Haunted by Specter of DiMasi, House Tries to Move On, STATE HOUSE NEWS SERVICE (June 3, 2009) (RA II:31); State Capitol Briefs (Afternoon Edition) – Wednesday, June 24, 2009, STATE HOUSE NEWS SERVICE, at 2 (June 24, 2009) (RA II:38); K. Cheney et al., As Ethics Bill Emerges, All Eyes on Patrick, STATE HOUSE NEWS SERVICE (June 24, 2009) (RA II:43); United States v. Wilkerson, 675 F.3d 120 (1st Cir. 2012) (per curiam). In this footnote and throughout this brief, the Secretary cites to legislative reports authored by the State House News Service. Massachusetts courts rely on State House News Service publications as a source of legislative history and as the functional equivalent of the Congressional Record for Congress. See, e.g., Wallace W. v. Commonwealth, 482 Mass. 789, 795 (2019) (citing State House News Service article as providing “the legislative history of the criminal justice reform act”); Lazlo L. v. Commonwealth, 482 Mass. 325, 333 (2019) (citing State House News Service publications to describe “legislative history” of statute); Commonwealth v. Pon, 469 Mass. 296, 304-08 (2014) (same). This Court, of course, “may take judicial notice of such [legislative] history.” Blue Hills Cemetery, Inc. v. Bd. of Registration in Embalming & Funeral Directing, 379 Mass. 368, 375 (1979) (citing Pereira v. New England LNG Co., 364 Mass. 109, 122 (1973)).
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would “promote the integrity of government employees and the public’s confidence in government and governmental decision-making.” See TASK FORCE REPORT, at 3 (RA II:54).
The Task Force took note, in particular, of
“significant deficiencies in the existing mechanisms for implementing and enforcing the ... lobbying laws.” Id. at 4 (RA II:55). Commenting on the Secretary of State’s minimal “authority to implement and enforce” those laws, the Task Force “recommend[ed] various changes to clarify and further strengthen the lobbying laws,” including giving the Secretary rulemaking authority and enhanced enforcement authority. Id. at 4, 24-25 & Appendix A (RA
II:55, 75-76, 114-16). The Task Force also appended draft legislation that would codify its recommendations.
See RA 125-43.
Building off the Task Force’s draft legislation, the Legislature debated a series of ethics and lobbying bills throughout the spring of 2009. The debate culminated in the enactment of An Act to Improve the
Laws Related to Campaign Finance, Ethics and Lobbying,
St. 2009, c. 28, in late June 2009. Among other things, the legislation expanded the definition of who qualifies as a lobbyist, termed an “executive agent” or
“legislative agent” under Massachusetts law, see G.L. c.
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3, § 39; granted the Secretary additional powers to compel testimony on potential lobbying violations; granted the Secretary authority to issue advisory opinions pertaining to lobbying; barred lobbyists from giving gifts; expanded “revolving door” provisions to include members of the executive branch; stiffened penalties for ethics violations, obstruction of justice, and bribery; and expanded the powers of the Attorney
General and State Ethics Commission. St. 2009, c. 28;
Cheney, supra, at 13 n.2 (RA II:43-45). The bill also contained campaign finance and ethics reforms. See id.
Section 45(m), enacted as part of the effort to strengthen the preexisting limitations on lobbyists, was adopted as an amendment to the bill during the House debate. See House Session – Thursday, March 26, 2009,
STATE HOUSE NEWS SERVICE (Mar. 26, 2009) (RA II:157, 170).
The amendment was described, on the day of its adoption, as a measure that “prohibited convicted felons from registering as lobbyists in the Commonwealth.” Id. (RA
II:170). Previously, Section 45 had provided that “[t]he state secretary may, upon cause shown therefor, disqualify a person from acting as an executive or legislative agent” by instituting “proceedings for disqualification. ... No person who has been so
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disqualified shall be employed as an executive or legislative agent until the termination of the third regular session of the general court after such disqualification.” G.L. c. 3, § 45 (2006) (emphasis added).
Legislators widely lauded the reforms adopted by the bill, including Section 45(m), when it was enacted.
Representative Vallee, for example, thought the bill would “take a step in restoring the integrity back to this institution and elected officials.” House Session
– Thursday, March 26, 2009, STATE HOUSE NEWS SERVICE (Mar.
26, 2009) (RA II:157-58). And Representative Walsh felt that the bill would “strengthen this body, to allow us to do our work without worrying that a few folks who are not playing by the rules are going to ruin it for everybody.” Id. (RA II:157).
Today, the provisions of the 2009 legislation and prior legislation pertaining to lobbying are codified at
G.L. c. 3, §§ 39-50, known colloquially as the “Lobbying
Law.” The Lobbying Law principally aims to “preserve and maintain the integrity of the legislative process” in
Massachusetts. R. Murray, M. Tassinari & B. Fierro III,
MASS. ELECTION ADMIN., CAMPAIGN FINANCE, & LOBBYING LAW § 21-1
(MCLE Inc. 4th ed. 2016) (quoting St. 1973, c. 981, § 1).
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Factual Background
1. DiMasi’s Criminal Conduct and Convictions.
DiMasi was formerly the Speaker of the
Massachusetts House of Representatives. He held that position from 2004 until his resignation in January
2009——the same month the Task Force Report was issued—— after he came under federal investigation for bribery, extortion, and corruption. See United States v.
McDonough, 737 F.3d 143, 148, 152 (1st Cir. 2013)
(affirming DiMasi’s conviction and sentence). In June
2009, a federal grand jury returned indictments charging him with eight counts: (1) three counts of honest- services mail fraud under 18 U.S.C. §§ 1341 and 1346;
(2) four counts of honest-services wire fraud under 18
U.S.C. §§ 1343 and 1346; and (3) one count of conspiracy to commit honest-services mail and wire fraud under 18
U.S.C. § 371. See Indictment, United States v. DiMasi et al., No. 09-10166-MLW (D. Mass.) (RA II:176-208)3; J.
O’Sullivan et al., DiMasi, Three Associates Indicted on
Raft of Federal Corruption Charges, STATE HOUSE NEWS SERVICE
3 This Court “may take judicial notice of the docket entries and papers filed in separate cases,” like DiMasi’s criminal case. Home Depot v. Kardas, 81 Mass. App. Ct. 27, 28 (2011); see also Jackson v. Longcope, 394 Mass. 577, 580 n.2 (1985) (“It is proper ... to recognize those facts of which a judge may take judicial notice, including criminal cases involving a party.”). 17
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(June 2, 2009) (RA II:210-15). In October 2009, the grand jury returned a superseding indictment that added a ninth charge——extortion, under 18 U.S.C. § 1951——and added that crime as an object of the conspiracy charge.
See McDonough, 737 F.3d at 152.
As alleged in the indictments, and later proven beyond a reasonable doubt to the jury, from 2004 to 2008
DiMasi participated in multiple schemes designed to trade money for political favors. McDonough, 727 F.3d at
147-52. The first scheme began in December 2004, when
Richard McDonough, a lobbyist and friend of DiMasi’s, told Joseph Lally, the vice president of a software company named Cognos, that “he was looking for a way to supplement DiMasi’s income.” Id. at 148. McDonough and
Lally arranged for Cognos to hire DiMasi’s law partner and pay him a monthly retainer, half of which would go to DiMasi. Id. DiMasi instructed his law partner that he must sign the contract, rather than “screw up” the arrangement. Id. Though Cognos eventually paid the law partner $125,000, half of which went to DiMasi, the law partner never did work for Cognos. Id. at 148-49. During the course of the contract, DiMasi took steps to make the payments from Cognos appear smaller than they in fact were. Id. at 149.
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In exchange for the payments, DiMasi pressured officials at the Department of Education (“DOE”) to select Cognos for a $4.5 million contract for software to aggregate DOE data. Id. When Governor Mitt Romney initially omitted funding for the contract from the 2007 budget, DiMasi’s counsel drafted an amendment to include the funding for the project and shared the draft with
McDonough and Lally. Id. DiMasi later took additional steps to ensure that the amendment remained in the budget and that Cognos received the full funding it expected.
Id. at 150. As the budget neared completion with Cognos’s earmark intact, McDonough told Lally that he would have to pay an additional $100,000 each to McDonough and to
DiMasi’s financial advisor, who would, and in fact did, use the payment to extend DiMasi a line of credit. Id.
Around the same time, while playing golf with Lally and
McDonough, DiMasi told them, “I am only going to be
Speaker for so long, so it is important that we make as much hay as possible.” Id.
The group continued to “make hay” in 2006 and 2007, when they concocted a separate scheme to funnel money from Cognos to DiMasi in exchange for different political favors. Id. at 150-51. Using talking points from Lally, DiMasi approached the head of the
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Information Technology Division Office in Massachusetts
to ask her to work with him on a bond bill for a $15
million data-collection software project. Id. Lally
thereafter drafted the legislation in a way that would
increase Cognos’s chances of getting the software
contract, and DiMasi urged Governor Patrick to include
it in a 2007 emergency bond bill. Id. at 151. Governor
Patrick initially declined, but the measure was
eventually included in the bill; the Governor later
testified that it would not have been included if DiMasi
had not expressed his interest in it. Id. After the bond
bill passed, DiMasi met with various officials to ensure
that Cognos would be awarded the contract. Id. In return,
Lally paid $500,000 to a fund controlled by DiMasi’s
financial adviser, from which DiMasi could draw money,
and $200,000 to McDonough. Id. Later, in March 2008,
when the Boston Globe started to report on the contract,
DiMasi admonished McDonough and Lally on a phone call,
“If one of us breaks, we all fall.” Id.
In June 2011, after a trial, the jury convicted
DiMasi on seven of the nine counts——the conspiracy
count, two honest-services mail fraud counts, three
honest-services wire fraud counts, and the extortion
count. See Jury Verdict, United States v. DiMasi et al.,
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No. 09-10166-MLW (D. Mass.) (RA II:217-18). DiMasi was
sentenced to eight years in prison and two years of
supervised release. See Docket Sheet, United States v.
DiMasi et al., No. 09-10166-MLW, at 59 (D. Mass.) (RA
II:239). The First Circuit affirmed his conviction,
holding that “a rational jury could easily find beyond
a reasonable doubt that DiMasi and McDonough took part
in a scheme that saw DiMasi exchange official acts for
money.” McDonough, 727 F.3d at 153. “These actions,” the
First Circuit continued, “fit comfortably into what the
Supreme Court has described as a ‘classic kickback
scheme,’ in which a public official uses a middleman to
help another entity——here, Lally and Cognos——generate
revenue or commissions and the proceeds are shared with
the official and middleman.” Id. (quoting Skilling v.
United States, 561 U.S. 358, 409 (2010)).
2. The Secretary’s Rejection of DiMasi’s Lobbyist Registration and the Presiding Officer’s Affirmance on Administrative Review.
DiMasi served only five years of his eight-year sentence. In November 2016, he was granted early release from prison due to medical conditions, and he thereafter sought employment. In March 2019, DiMasi applied to register as a lobbyist with Secretary Galvin. See RA
I:193. The Secretary’s Lobbyist Division rejected 21
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DiMasi’s application and sent him a notice explaining that, pursuant to G.L. c. 3, § 45(m), he was disqualified from acting as a lobbyist for ten years from the date of his conviction. RA I:40, 193.
DiMasi filed a notice of appeal from that determination in April 2019. RA I:44-46. At a prehearing conference in June 2019, the Secretary’s Lobbyist
Division reaffirmed its Section 45(m) basis for automatic disqualification, and it also raised an alternative theory for disqualification——namely, that
DiMasi’s conduct while serving as Speaker violated the
Lobbying Law. See RA I:27, ¶ 17. It thereafter filed a
Notice Pursuant to M.G.L. c. 3, § 45(a) and a Claim for
Adjudicatory Proceeding on that theory, which DiMasi answered. RA I:75-76, 79-82, 85-91. In the months that followed, the parties filed briefs addressing the merits of the automatic disqualification under Section 45(m), and DiMasi moved to strike the Lobbyist Division’s alternative basis for disqualification on procedural grounds. RA I:102-24, 130-54, 163-75, 178-84.
After holding a hearing, the Presiding Officer issued two rulings: (1) a Ruling on Notice of Appeal from Disqualification and (2) a Ruling on DiMasi’s
Motion to Strike. RA I:193-206. In the first ruling, the
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Presiding Officer denied DiMasi’s notice of appeal and upheld the Secretary’s automatic disqualification of
DiMasi’s lobbyist registration under Section 45(m). RA
I:193-204. The Presiding Officer explained that DiMasi’s narrow interpretation of Section 45(m)——under which the statute would only require disqualification based on felony convictions under chapters 3, 55, and 268A of the
Massachusetts General Laws——“is at odds with the regulatory scheme established by the Lobbying Law, the purposes of that law, and the intentions of the
Legislature in adopting” the law. RA I:197-98. The
Presiding Officer instead adopted the “common sense” reading of Section 45(m), explaining that Section 45(m) covers DiMasi’s federal convictions for honest-services fraud because the elements of that crime——requiring a bribery or kickback scheme——align closely with the elements of the felony set forth in G.L. c. 268, § 2. RA
I:200-01. That statute prohibits state employees from corruptly asking for or receiving anything of value in exchange for being influenced in the performance of official acts. See G.L. c. 268A, § 2(b). Thus, the
Presiding Officer concluded, “the conditions for automatic disqualification under Section 45(m) have been satisfied.” RA I:201.
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In the second ruling, the Presiding Officer granted
DiMasi’s motion to strike the Secretary’s alternative theory for disqualification because the Lobbyist
Division “appear[ed] to concede that it ha[d] not thus far observed the steps of preliminary inquiry and notification described in § 45.” RA I:206. The Presiding
Officer noted that the Secretary could re-file based on that theory under the procedures outlined in G.L. c. 3,
§ 45. Id.
3. The Superior Court’s Decision.
DiMasi sought judicial review of both decisions in the Superior Court. RA I:10-23. First, DiMasi alleged, pursuant to G.L. c. 30A, § 14 or G.L. c. 249, § 4, that the Presiding Officer erred as a matter of law when he construed Section 45(m) to bar DiMasi from registering as a lobbyist until June 2021. RA I:19. Second, DiMasi alleged, under 42 U.S.C. § 1983, that he was deprived of his right to procedural due process because he did not receive notice and an opportunity to be heard before he was disqualified pursuant to Section 45(m). RA I:21. And third, he sought, pursuant to G.L. c. 231A, various declarations regarding the Secretary’s alternative theory of disqualification. RA I:20-21.
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After the parties filed cross-motions for summary judgment, the Superior Court granted in part and denied in part DiMasi’s motion, and also granted in part and denied in part the Secretary’s motion. Addendum (“Add.”)
80-81. The Court determined that the Secretary and
Presiding Officer erred as a matter of law in interpreting Section 45(m) to apply to applicants with federal felony convictions for conduct proscribed by
G.L. c. 3, 55, and 268A. Add. 67-77. The court reasoned that Section 45(m) is unambiguous because the phrase
“shall automatically disqualify” must mean that the disqualification must be done “without conscious thought or intent” by the Secretary. Add. 67-68 (quotation marks omitted). And the Superior Court rejected the
Secretary’s argument that settled canons of statutory construction preclude the narrow interpretation of the statute favored by DiMasi or, at a minimum, render the statute ambiguous. Add. 68-77. Thus, the Superior Court refused to consider whether the Secretary’s interpretation of Section 45(m) was reasonable. Instead, the court concluded that it was its “duty to give the statute a reasonable construction.” Add. 69-70 (quoting
Commonwealth v. Pagan, 445 Mass. 315, 319 (2005)).
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The Superior Court separately rejected DiMasi’s claim that his procedural due process rights were infringed because he did not receive notice and an opportunity to be heard prior to his disqualification under Section 45(m). Add. 77-80. And the court agreed with the Secretary that DiMasi’s declaratory judgment claim did not present an actual controversy ripe for judicial review. Add. 65 n.10.
Secretary Galvin filed a timely notice of appeal of the Superior Court’s decision, to the extent it reversed the Secretary’s disqualification of DiMasi’s lobbyist registration pursuant to G.L. c. 3, § 45(m). RA II:288.
DiMasi did not file a cross-appeal of the Superior
Court’s rejection of his due process and declaratory judgment claims; accordingly, those claims are not at issue in this appeal.
SUMMARY OF THE ARGUMENT
When an administrative agency, like the office of
the Secretary of the Commonwealth, interprets an
ambiguous statute that it is charged with administering
and enforcing, courts owe substantial deference to any
reasonable construction of the statute adopted by the
agency. Section 45(m) is one such ambiguous statute. The key statutory phrase in which the Superior Court found
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supposed clarity——“shall automatically disqualify”——is susceptible to at least two different meanings. While the Superior Court construed the phrase to mean that the statute is to be administered without conscious thought or intent, the phrase is more plausibly construed to remove from the Secretary any discretion regarding whether or not to disqualify applicants who are ineligible to register as lobbyists due to felony convictions. That latter construction is more consistent with the language of Section 45(m) and with case law concerning other automatic statutory disqualifications.
At a minimum, the parties’ alternative constructions of
“shall automatically disqualify” are indicative of statutory ambiguity. See infra, at 30-39.
Settled canons of statutory construction also support the Secretary’s construction of Section 45(m), to require disqualification of any applicant convicted of a felony for conduct proscribed by chapters 3, 55, and 268A of the Massachusetts General Laws. The narrower construction of Section 45(m) embraced by the Superior
Court——under which the statute only requires disqualification of persons convicted of felony offenses specifically defined in chapters 3, 55, and 268A—— violates the canon against rendering an operative
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portion of the statute superfluous. Because chapter 55 contains no felony crimes, the Superior Court’s narrow construction reads the phrase “any person convicted of a felony in violation of ... chapter 55” out of Section
45(m). Honoring this canon, the Superior Court reasoned, would offend the canon against adding words to a statute.
But rather than choose to prioritize one canon of construction over the other, the Superior Court should have ruled that, where two canons of construction give rise to conflicting interpretations, the statute is ambiguous. See infra, at 39-44.
The Superior Court’s construction of Section 45(m) also conflicts with the rule against producing absurd outcomes or otherwise frustrating legislative intent.
Under its narrow statutory construction, an applicant’s eligibility for lobbying in the ten years after certain felony convictions turns on the happenstance of whether the applicant was convicted in state or federal court.
In addition, Section 45(m) is rendered largely inoperative, because prosecutions for public corruption offenses are typically brought in federal court. The court’s construction conflicts with the Legislature’s intent in enacting the 2009 Lobbying Law——namely, to strengthen the integrity of the legislative process in
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Massachusetts and reduce the risk of corruption in the lobbying profession. See infra, at 44-50.
Faced with ambiguity in Section 45(m), the Superior
Court should have inquired only whether the Secretary’s
construction of the statute is reasonable. And indeed,
that construction is reasonable. It gives meaning to all
words in the statute, honors the intent of the
Legislature, and best accords with the available
legislative history, which evinces no desire to exclude
persons convicted in federal court of felonies for
conduct that violates chapters 3, 55, and 268A of the
Massachusetts General Laws from Section 45(m)’s
temporary bar on lobbying. See infra, at 50-54.
The Secretary correctly applied his reasonable
construction of Section 45(m) when he determined that
DiMasi is barred from registering as a lobbyist until
June 2021. DiMasi was convicted of felonies for conduct
proscribed by G.L. c. 268A, § 2(b), which prohibits state employees from engaging in bribery schemes. The jury
found, beyond a reasonable doubt, that DiMasi had traded
political favors for large sums of money——conduct made
unlawful by G.L. c. 268A, § 2(b). Thus, this Court should
reverse the Superior Court’s judgment and conclude that
the Secretary correctly determined that DiMasi is
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temporarily barred from registering as a lobbyist under
G.L. c. 3, § 45(m). See infra, at 54-56.
ARGUMENT
I. The Superior Court Erred in Declining to Defer to the Secretary’s Reasonable Construction of Section 45(m).
In determining that G.L. c. 3, § 45(m) requires
DiMasi to be automatically disqualified from registering as a lobbyist June 2021, Secretary Galvin reasonably interpreted an ambiguous statute in a manner that best accords with the law’s text, purpose, and history. The
Superior Court was wrong to conclude that Section 45(m)
is clear on its face and to discount principles of
statutory construction that undermine its preferred
interpretation of Section 45(m).4
Those settled principles instruct 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
4 This Court’s review of the Superior Court’s construction of Section 45(m) is de novo. See Bridgewater State Univ. Found. v. Bd. of Assessors of Bridgewater, 463 Mass. 154, 156 (2012) (“[Q]uestions of statutory construction are questions of law, to be reviewed de novo.”).
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and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.’” DiMasi v. State Bd. of Retirement, 474 Mass. 194, 199 (2016)
(quoting Retirement Bd. of Somerville v. Buonomo, 467
Mass. 662, 668 (2014)). Under this approach, when
“statutory language is clear, it must be given its plain and ordinary meaning.” Nationwide Mut. Ins. Co. v.
Comm’r of Ins., 397 Mass. 416, 420 (1986). But “‘[w]hen a statute is capable of being understood by reasonably well-informed persons in two or more different senses, it is ambiguous.’” AT&T v. Automatic Sprinkler Appeals
Bd., 52 Mass. App. Ct. 11, 14 (2001) (quoting Cohen v.
Liberty Mut. Ins. Co., 41 Mass. App. Ct. 748, 753
(1996)). A court determines whether a statute is ambiguous or “unambiguous only after consider[ing] the specific language of [the] statute in connection with the statute as a whole and in consideration of the surrounding text, structure, and purpose of the
Massachusetts act ... in light of the standard rules of statutory construction and grammar.” ENGIE Gas & LNG LLC v. Dep’t of Pub. Utils., 475 Mass. 191, 199 (2016)
(quotation marks omitted) (emphasis in original).
When the Legislature has not spoken with precision and a statute is therefore ambiguous, courts owe
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“‘substantial deference’ to the expertise and statutory
‘interpretation of [the] agency charged with primary responsibility’ for administering [the] statute.”
Goldberg v. Bd. of Health of Granby, 444 Mass. 627, 633
(2005) (quoting Briggs v. Commonwealth, 429 Mass. 241,
253 (1999)). The court must “apply all rational presumptions in favor of the validity of the administrative action,” Zoning Bd. of Appeals of
Amesbury v. Housing Appeals Committee, 457 Mass. 748,
759 (2010) (internal quotation marks omitted), and it must uphold any agency interpretation that is
“reasonable.” Franklin Office Park Realty Corp. v.
Comm’r of Dept. of Envtl. Prot., 466 Mass. 454, 460
(2013). Under this standard, a court may not “disturb an agency’s interpretation of its statutory mandate” unless the interpretation “is ‘patently wrong, unreasonable, arbitrary, whimsical, or capricious.’” Id. (quoting
Brookline v. Comm’r of Dept. of Envtl. Quality Eng’g,
398 Mass. 404, 414 (1986)).
A. Section 45(m) Is, At Best, Ambiguous.
Section 45(m) provides that “[t]he state secretary shall automatically disqualify any person convicted of a felony in violation of chapter 3, chapter 55, or chapter 268A from acting or registering as an executive
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or legislative agent for a period of 10 years from the date of conviction.” G.L. c. 3, § 45(m). Contrary to the
Superior Court’s conclusion that this statute is clear, the phrase “shall automatically disqualify” in Section
45(m) is susceptible to multiple interpretations, and application of settled canons of statutory construction supports the Secretary’s reading of the statute. The
Superior Court acknowledged that “the draftsmanship of
[Section 45(m)] is faulty or lacks precision,” but it nevertheless insisted that the statute has only one possible interpretation. Add. 69-70 (quoting Pagan, 445
Mass. at 319). That was error. Presented with two viable interpretations of Section 45(m), neither foreclosed by the statute’s text, the Superior Court should have determined that the statute is ambiguous and then analyzed whether the Secretary’s interpretation is reasonable.
1. The Statutory Phrase “Shall Automatically Disqualify” is Susceptible to Different Interpretations.
The key phrase upon which the Superior Court focused its statutory analysis——“shall automatically disqualify”——is susceptible to two interpretations. G.L. c. 3, § 45(m). See Guedes v. Bureau of Alcohol, Tobacco,
Firearms & Explosives, 920 F.3d 1, 30 (D.C. Cir. 2019), 33
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cert. denied, 140 S. Ct. 789 (2020) (“the statutory term
‘automatically’ admits of multiple interpretations.”).
On one reading, the phrase could mean that the Secretary may not use conscious thought or intent when he disqualifies applicants who are ineligible to register as lobbyists due to felony convictions. This reading suggests a disqualification process that is mechanistic and devoid of human cognition. On another reading, the phrase could mean that the Secretary has no discretion to decline to disqualify applicants who are ineligible to register as lobbyists due to felony convictions.
Under this reading, Section 45(m) removes discretionary authority from the Secretary in order to ensure that certain categories of persons with felony convictions will not engage in lobbying for ten years from the date of their convictions.
The Superior Court concluded that the first interpretation is the only permissible reading of
Section 45(m). Add. 67-68. For that conclusion, it relied on a single definition of the word “automatic,” to mean “done ‘with little or no direct human control’ and ‘without conscious thought or intent.’” Id. (quoting
Black’s Law Dictionary (11th ed. 2019)). But accepting the premise that the Legislature unambiguously
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instructed the Secretary to act “without conscious thought or intent” in enforcing Section 45(m) requires a strained reading of the statute. Even under the narrowest construction of Section 45(m)——to require disqualification only when a person is convicted of a felony enumerated in G.L. c. 3, 55, or 268A——the
Secretary must apply the law to the facts of an applicant’s criminal history, exercising conscious thought and intent. He must, at a minimum, determine
(1) whether the applicant had a criminal conviction;
(2) whether the conviction was for a felony or misdemeanor under Massachusetts law; and (3) the date of the criminal conviction. This inquiry into the nature, seriousness, and date of a criminal offense necessarily involves the conscious application of law to facts. Cf.
Guedes, 920 F.3d at 30 (“The term ‘automatically’ does not require that there be no human involvement. ... [A]n automatic sewing machine still requires the user to press a pedal and direct the fabric.” (emphases in original; quotation marks omitted)).
Thus, the Superior Court’s conclusion that the term
“automatically” forecloses conscious thought and intent by the Secretary is hard to square with the balance of
Section 45(m). And the Superior Court overlooked the
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alternative and more plausible construction of the phrase “shall automatically disqualify,” to remove from the Secretary any discretion to permit registration of applicants despite cause shown, discretion that the
Secretary had possessed under the prior version of G.L. c. 3, § 45. See supra, at 15-16; TASK FORCE REPORT, at 41
(RA II:92) (observing that the “remedy” provided in the prior version of Section 45 “has not been invoked in recent times”). Indeed, for the reasons that follow, this construction of the phrase “shall automatically disqualify” is more consistent with the law on automatic statutory disqualifications, because, in fact, such automatic disqualifications necessarily involve deliberation by a state actor.
Consider two examples. One is found in G.L. c. 32,
§ 15(4), which provides that, “[i]n no event shall any member after final conviction of a criminal offense involving violation of the laws applicable to his office or position, be entitled to receive a retirement allowance.” See Robinson v. Contributory Ret. Appeal
Bd., 62 Mass. App. Ct. 935, 936 (2005) (Section 15(4) is an “automatic disqualification”); Fid. & Deposit Co. of
Maryland v. Sproules, 60 Mass. App. Ct. 93, 98 (2003)
(same). Although this disqualification is “automatic,”
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id., it requires a state retirement board to consider whether the criminal offense involved “violation of the laws applicable to [the member’s] office or position.”
G.L. c. 32, § 15(4). In making that determination, “the facts of each case are examined for ‘a direct link between the criminal offense and the member's office or position.’” Buonomo, 467 Mass. at 669 (quoting Gaffney v. Contributory Ret. Appeal Bd., 423 Mass. 1, 5 (1996)).
Thus, a precondition of the automatic disqualification in Section 15(4) is an examination of the underlying facts of a particular offense. The disqualification is no less “automatic” because a state actor has to engage in “conscious thought and intent” to determine whether the conditions for disqualification are met.
Another example is found in G.L. c. 140, § 131(d), the statute requiring “automatic disqualification” from firearms licensure for certain categories of applicants.
Dupont v. Chief of Police of Pepperell, 57 Mass. App.
Ct. 690, 692 (2003).5 Section 131(d) likewise requires conscious deliberation to determine if an applicant is
5 See also DaSilveira v. Police Comm’r of Boston, 97 Mass. App. Ct. 1120, at *2 (2020) (Rule 1:28 decision) (“The licensing statute, G.L. c. 140, § 131, sets forth certain categories of individuals who are automatically barred from obtaining a license to carry.”).
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disqualified. For example, an applicant is automatically prohibited from firearms licensure if, among other things, the applicant “been convicted ... for the commission of ... a violent crime,” G.L. c. 140,
§ 131(d)(i)(C), which is, in turn, defined in part to include a crime “involv[ing] conduct that presents a serious risk of physical injury to another,” id. § 121.
In applying G.L. c. 140, § 131(d)(i)(C), a police chief must determine if the applicant’s conduct involved a serious risk of physical injury, a process that involves deliberately applying the law to the particular facts of the applicant’s criminal history.
These examples illustrate why Section 45(m) does not unambiguously mean that, in discharging his duties under the statute, Secretary Galvin may not consciously consider the facts of an applicant’s criminal history.
While the Superior Court’s construction of “shall automatically disqualify” is not linguistically impossible, it is also not the only plausible construction of that phrase in Section 45(m). Simply put, the phrase “shall automatically disqualify” admits of ambiguity, and the Superior Court erred in concluding that the plain meaning of the statute is clear. See
Guedes, 920 F.3d at 30-31 (Chevron deference——the
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federal analogue of deference under Goldberg——warranted because statutory term “automatically” is ambiguous).
2. The Superior Court Disregarded Canons of Statutory Construction that Support the Secretary’s Reading of Section 45(m).
Application of settled canons of statutory construction——namely, the rules against rendering part of a statute superfluous and against absurd readings of statutes——likewise compels the conclusion that Section
45(m) is, at a minimum, ambiguous. See ENGIE Gas, 475
Mass. at 199 (court’s ambiguity assessment includes
“consideration of the surrounding text, structure, and purpose of the Massachusetts act”).
a. The Superior Court’s Construction Rendered an Important Part of Section 45(m) Meaningless.
A cardinal rule of statutory interpretation instructs that a court may “not interpret a statute so as to render any portion of it meaningless.” Phillips v.
Equity Residential Mgmt., L.L.C., 478 Mass. 251, 258
(2017); see also, e.g., Connors v. Annino, 460 Mass.
790, 796 (2011) (courts “endeavor to interpret a statute to give effect ‘to all its provisions, so that no part will be inoperative or superfluous’” (quoting Wheatley v. Mass. Insurers Insolvency Fund, 456 Mass. 594, 601
(2010))); Banushi v. Dorfman, 438 Mass. 242, 245 (2002) 39
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(“We do not read a statute so as to render any of its terms meaningless or superfluous.”). Thus, where a proposed interpretation would render a portion of a statute meaningless, a court must adopt a different interpretation of the statute, “so long as” that alternative interpretation “yields a ‘logical and sensible result.’” Phillips, 435 Mass. at 258 (quoting
Adamowicz v. Ipswich, 395 Mass. 757, 760 (1985)).
Before the Superior Court, DiMasi advanced a narrow interpretation of Section 45(m) that ran afoul of that canon. In particular, DiMasi contended, and the Superior
Court accepted, that Section 45(m) requires disqualification only of persons convicted of felony offenses specifically defined in chapters 3, 55, and
268A of the Massachusetts General Laws. But that construction reads the phrase “any person convicted of a felony in violation of ... chapter 55” out of the statute altogether, because unlike chapters 3 and 268A, chapter 55 does not define any felony offenses.
Under Massachusetts law, only crimes punishable by confinement in state prison, as opposed to jail or a house of correction, are felonies. See G.L. c. 274, § 1;
Commonwealth v. Hill, 57 Mass. App. Ct. 240, 248 (2003).
Statutes that define felonies specify that they are
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punishable by imprisonment in “state prison”; in contrast, statutes that define crimes punishable by 2½ years or less or that do not specify the possibility of confinement in state prison are misdemeanors. See
Commonwealth v. Zawatsky, 41 Mass. App. Ct. 392, 395
(1996) (noting the general rule that “[i]n the absence of reference to State prison as the place of confinement, the statute does not ... describe a felony,” as well as the rule that “a sentence to a house of correction may not exceed two and one-half years”). Chapter 55 defines a host of misdemeanor offenses punishable by a fine or imprisonment of up to one year,6 but it defines no felony offenses. Thus, the narrow construction embraced by
DiMasi and the Superior Court renders a significant operative portion of Section 45(m) superfluous. The
Legislature could not have intended that result. See
Boston Police Patrolmen’s Ass’n, Inc. v. City of Boston,
435 Mass. 718, 721 (2002) (courts must “interpret statutes so as to avoid rendering any part of the legislation meaningless”).
The Superior Court acknowledged that the
Secretary’s construction of Section 45(m)——one that
6 See G.L. c. 55, §§ 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 16A, 16B, 17, 18, 18B, 18G, 22, 22A, 23.
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requires automatic disqualification of any applicant convicted of felonies for conduct proscribed by chapters
3, 55, and 268A of the Massachusetts General Laws, even if the forum of conviction was federal court——
“concededly preserves meaning for the term ‘felony.’”
Add. 69. Nevertheless, the Superior Court reasoned that that Secretary’s interpretation could not be correct, because “if automatic disqualification only flows from convictions of felonies set forth in chapters 3, 55, and
268A, and none of the offenses recited in chapter 55 are felonies, then no conviction under chapter 55 could ever be the predicate for automatic disqualification,” because chapter 55 codifies only misdemeanors. Id.
(emphasis in original). That observation is correct, but it is precisely why the Secretary’s construction of
Section 45(m) is most sensible. It is an explicit feature of the statute, rather than the Secretary’s interpretation, that only felony convictions trigger automatic disqualification. See G.L. c. 3, § 45(m) (“The state secretary shall automatically disqualify any person convicted of a felony...”). The Secretary’s interpretation of the statute gives meaning to the phrase “convicted of a felony in violation of ... chapter
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55,” whereas the narrow construction favored by DiMasi
and the Superior Court renders that phrase meaningless.
The Superior Court then compounded its mistake by
rejecting the application of the canon against rendering
portions of a statute superfluous, in favor of the canon
that a “court may not ‘add words’ to a statute”——here,
the word “conduct”——that “‘the Legislature had an option
to, but chose not to include.’” Add. 70 (quoting Comm’r
of Correction v. Superior Ct. Dept. of the Trial Ct.,
446 Mass. 123, 126 (2006)). In the Superior Court’s view,
“honor[ing]” the canon against rendering statutory
language superfluous would “d[o] violence” to this
latter canon. Add. 71. But it was not for the Superior
Court to choose which canon of construction to
prioritize. The Superior Court needed to determine only
whether the statute was ambiguous, and the existence of
two canons in tension with each other was itself strong
evidence of just such ambiguity. Where the Court was
faced with two applicable canons of construction, each of which pointed in favor of different readings of
Section 45(m), the Superior Court should have concluded that the statute is ambiguous.
Indeed, elsewhere, the Superior Court acknowledged
that “‘the draftsmanship of [Section 45(m)] is faulty or
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lacks precision.’” Add. 69-70 (quoting Pagan, 445 Mass. at 319). But rather than conclude that Section 45(m) is, consequently, ambiguous, the Superior Court thought that it was its “‘duty to give the statute a reasonable construction.’” Add. 69-70 (quoting Pagan, 445 Mass. at
319); see also Add. 73 (stating that another case “lights the path” to its own “reasonable statutory construction”). This was error. It is not the court’s duty to settle on a reasonable construction of an ambiguous statute; rather, it is the court’s duty to determine if the statute is in fact ambiguous and, if it is, to give “substantial deference” to any reasonable construction adopted by the agency charged with administering the statute. Goldberg, 444 Mass. at 633; see Franklin Office Park Realty Corp., 466 Mass. at 460.
b. The Superior Court’s Construction Undermines Legislative Intent and Results in Absurd Consequences.
The Superior Court’s narrow interpretation of
Section 45(m) also ran afoul of the principle that a court may “not adopt a literal construction of a statute if the consequences of such construction are absurd or unreasonable. [Courts] assume the Legislature intended to act reasonably.” Bridgewater State Univ. Found. v.
Bd. of Assessors of Bridgewater, 463 Mass. 154, 158
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(2012) (quotation marks omitted). When an interpretation of a statute “produce[s] an absurd outcome or otherwise frustrate[s] legislative intent,” Casseus v. E. Bus Co.,
Inc., 478 Mass. 786, 795 (2018), a court must construe the statute to have a more “‘sensible meaning.’” City of
Worcester v. College Hill Props., LLC, 465 Mass. 134,
145 (2013) (quoting North Shore Realty Trust v.
Commonwealth, 434 Mass. 109, 112 (2001)).
This principle is incompatible with the narrow construction of Section 45(m) embraced by DiMasi and the
Superior Court. Under that construction, a felon’s disqualification from lobbying turns on the happenstance of the jurisdiction in which he was convicted, even when the conduct underlying the conviction would satisfy the elements of a crime enumerated in chapters 3, 55, or
268A of the General Laws. The narrow construction also largely deprives the public of the protections of
Section 45(m) because, since the Lobbying Law was enacted, most prosecutions of public officials for bribery, extortion, and other corruption offenses have been brought in federal, rather than state, court. See, e.g., McDonough, 727 F.3d 147 (DiMasi); United States v.
Turner, 684 F.3d 244 (1st Cir. 2012) (city councilor);
United States v. Wilkerson, 675 F.3d 120 (1st Cir. 2012)
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(per curiam) (Senator Wilkerson); Indictment, United
States v. Joyce, No. 1:17-cr-10378-NMG (D. Mass., Dec.
7, 2017) (state senator).
The Superior Court reasoned that its narrow construction was not absurd because, in its view,
Section 45(m) was intended “to eliminate the Secretary’s discretion to disqualify would-be lobbyists and replace such discretion with an automatic disqualification from lobbying if the applicant stood convicted of one or the specifically enumerated offenses.” Add. 75 (emphases in original). But, as described, the consequence of the elimination of that discretion is that the Secretary may not, in any circumstances, allow registration of applicants with felony convictions for conduct proscribed by the statutes set forth in Section 45(m).
See supra, at 34-36. The removal of the Secretary’s discretion says nothing about whether the felony convictions covered by Section 45(m) must have been entered in state or federal court. Nor does it require a narrow reading of the statute. In concluding otherwise, the Superior Court repeated its error of prioritizing one canon of construction over another, instead of confirming that Section 45(m) is ambiguous.
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The Superior Court also relied on Collatos v.
Boston Retirement Board, 396 Mass. 684 (1986), to
bolster its view that its interpretation would not lead
to absurd consequences. See Add. 73-74. That reliance
was misplaced. Collatos involved G.L. c. 32, § 15(3A),
a statute that mandated forfeiture of retirement
benefits by public employees “after final conviction of”
either of two offenses “set forth in” specified state
laws. 396 Mass. at 684. The Supreme Judicial Court
construed the statute narrowly, explaining that it
mandated forfeiture for conviction of the two specified
state crimes, but not analogous federal crimes. Id. at
686-88. But the Court did so because the statute was “in
the nature of a penal statute”——i.e., one “designed to
enforce the law by punishing offenders.” Id. at 686.7
Because the statute was “punitive,” the SJC applied the
rule of lenity and construed the phrase “set forth” in
the statute strictly against the government. Id. at 686-
87. And while, as the Superior Court noted, the SJC also said in Collatos that the statute was “clear and
unambiguous,” id. at 686, it later clarified that, in
7 This Court has also stated that the disqualification in G.L. c. 32, § 15(3A) is “punitive in nature.” Fid. & Deposit Co., 60 Mass. App. Ct. at 98.
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Collatos, it had “reviewed the statute narrowly because of its penal character,” Buonomo, 467 Mass. at 672 n.13.
This case differs significantly from Collatos.
Unlike the statute in Collatos, Section 45(m) is not penal, because it is not “designed to enforce the law by punishing offenders.” Collatos, 396 Mass. at 686.
Rather, it is a regulatory statute that establishes a temporary disqualification from the privilege of registering as a lobbyist when the applicant has been convicted of certain felonies in breach of the public trust. In operation, Section 45(m) is similar to G.L. c. 140, § 131(d)(i)(A), which disqualifies convicted felons from obtaining a license to carry firearms. “It is axiomatic” that such statutes are “regulatory statute[s],” not penal statutes. Chardin v. Police
Comm’r of Boston, 465 Mass. 314, 329 (2013). Indeed, statutes that make registration or “licensure dependent on continued eligibility for the public trust are historically nonpunitive.” Dupont, 57 Mass. App. Ct. at
694-95. These statutes instead protect the public: just as Section 131(d) protects public safety by keeping felons from obtaining firearms, Section 45(m) protects the integrity of the political process by temporarily barring certain convicted felons from lobbying. And
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unlike a statute that strips a person of accrued retirement benefits, Section 45(m) neither requires forfeiture of something previously possessed nor imposes punishment. Whereas in Collatos, the rule of lenity required that ambiguity be resolved in favor of the public employee, the Superior Court should have recognized here that the ambiguity in Section 45(m) must be resolved in favor of the agency charged with administering the statute.
The Superior Court’s narrow construction of Section
45(m) is also fundamentally at odds with the
Legislature’s purpose in enacting the 2009 Lobbying Law reforms. Through the law, the Legislature sought to strengthen the integrity of the political process by, among other things, enhancing the Secretary’s authority over the regulation of lobbyists and reducing the risk of corruption in the lobbying profession. See supra, at
12-16. In the Legislature’s judgment, the public interest would best be promoted by strengthening the lobbying, ethics, and campaign finance laws then in existence. And the Legislature acted in the wake of multiple corruption scandals, including Wilkerson’s federal bribery conviction and DiMasi’s indictment on federal conspiracy and honest-services fraud charges,
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that cast a harsh light on the political process in
Massachusetts. See supra, at 13, 17. DiMasi himself has explained that “[t]he 2009 Ethics Reform and Lobbying
Reform was widely heralded as a reaction to the lobbying efforts associated with my federal cases and the federal cases of other elected officials.” RA I:46.
It strains credulity to conclude, as the Superior
Court did, that, while passing an historic measure to restore integrity in the legislative process, the
Legislature intended Section 45(m) to permit officials like DiMasi and Wilkerson to register as lobbyists immediately after their release from prison, simply because they were convicted in federal, rather than state, court. Through Section 45(m), the Legislature did not disqualify all felons from engaging in lobbying in the future, but it did intend to temporarily disqualify those felons whose conduct violated the very same ethics, lobbying, and campaign finance laws that the
Legislature chose to reform.
B. The Secretary’s Interpretation of Section 45(m) Is Reasonable and Warrants Deference.
Rather than decide for itself the most reasonable interpretation of Section 45(m), an inherently ambiguous statute, the Superior Court should have inquired whether
Secretary Galvin’s interpretation of the statute was 50
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“‘patently wrong, unreasonable, arbitrary, whimsical, or capricious.’” Franklin Office Park Realty Corp., 466
Mass. at 460 (quoting Brookline, 398 Mass. at 414). In undertaking this analysis, a court does not consider whether it “would have come to the same interpretation of the statute as the agency.” Goldberg, 444 Mass. at
633. Rather, “the ultimate question is whether the policy embodied by the agency’s interpretation is reasonable.” Biogen IDEC MA, Inc. v. Treasurer &
Receiver Gen., 454 Mass. 174, 187 (2009).
The Secretary’s interpretation of Section 45(m)—— to mandate disqualification of persons convicted of felonies for conduct proscribed by chapters 3, 55, and
268A——is eminently reasonable. The interpretation does not read the term “automatic” out of the statute. Rather, it requires disqualification of any applicant with a felony conviction for conduct proscribed in chapters 3,
55, and 268A; the Secretary has no discretion to allow the registration of any applicant with such a conviction. The interpretation also gives meaning to the phrase “convicted of a felony in violation of ... chapter
55,” because it would require disqualification of someone convicted of a felony in another jurisdiction for conduct proscribed by chapter 55, even though
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chapter 55 itself does not define felony offenses under
Massachusetts law.
The Secretary’s interpretation also eliminates the inequity of the Superior Court’s construction, under which persons convicted in state court of felonies enumerated in chapters 3 or 268A are subject to a ten- year disqualification, while persons convicted in federal court of felonies for identical conduct that likewise violates chapters 3, 55, or 268A are subject to no such disqualification. See Lindsay v. Dep’t of Soc.
Servs., 439 Mass. 789, 796 (2003) (warning against statutory constructions “that would hobble the statute’s effectiveness”).
The Secretary’s also construction best accords with the available legislative history, which indicates that the Legislature did not intend for Section 45(m) to apply as narrowly as the Superior Court supposed. See AT&T, 52
Mass. App. Ct. at 14 (in assessing reasonableness of agency’s statutory interpretation, “a court may
“consider the statute’s legislative history”). Section
45(m) was added as an amendment to H.B. 3853, the original legislation taken up by the House. See RA
II:244, 246. On the day it was adopted, a summary of the
House debate explained that the amendment “prohibited
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convicted felons from registering as lobbyists in the
Commonwealth.” House Session – Thursday, March 26, 2009,
supra, at 15 (RA II:170). The next day, the State House
News Service similarly reported that the bill, with the
amendment included, “bars convicted felons from serving
as lobbyists.” Advances: Week of March 29, 2009, STATE
HOUSE NEWS SERVICE, at 3 (Mar. 27, 2009) (RA II:250). And
after the conference committee completed work on the
bill in June 2009, the State House News Service again
explained that the bill “bans anyone convicted of a
felony from lobbying for 10 years from the date of the
conviction.” Cheney, supra, at 13 n.2 (RA II:44). There
is no indication in the legislative history that
legislators expected Section 45(m) to exclude felony
convictions under federal felony analogues to crimes set
forth in chapters 3, 55, and 268A.
This history belies the Superior Court’s
supposition that the requirement of a felony conviction
“appear[ed] to lie at the very margin of the statute’s
concerns.” Add. 70 n.12. While the Superior Court thought that the “Legislature surely gave little thought to whether the disqualifying crime under Section 45(m) happened to be a felony or a misdemeanor,” id., the
legislative history shows that the Legislature indeed
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focused far more on the classification of the conviction as a felony than on whether the forum of conviction happened to be state or federal court. And while the
Superior Court thought that the Legislature could not
have intended to bar persons convicted in jurisdictions
outside Massachusetts state court, see Add. 70-71, this
history gives no indication that the Legislature wished
to exclude persons convicted in federal court of
felonies for conduct that violates chapters 3, 55, and
268A of the Massachusetts General Laws.
At bottom, “the policy embodied by the
[Secretary’s] interpretation” of Section 45(m) best
accords with legislative history and purpose and is
unquestionably reasonable. Biogen IDEC, 454 Mass. at
187. The Superior Court erred in refusing to defer to
that reasonable statutory construction.
II. The Secretary Correctly Determined that, in Accordance with Section 45(m), DiMasi’s Felony Convictions Automatically Disqualify Him from Registering as a Lobbyist Until June 2021.
Applying his reasonable interpretation of Section
45(m), the Secretary correctly determined that the
statute bars DiMasi from registering as a lobbyist until
June 2021 because his felony convictions were for
conduct in violation of G.L. c. 268A, § 2. That statute
prohibits a state employee from “corruptly ask[ing], 54
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demand[ing], exact[ing], solicit[ing], seek[ing],
accept[ing], receiv[ing] or agree[ing] to receive
anything of value for himself or for any other person or entity, in return for (1) being influenced in his performance of any official act or any act within his official responsibility, or (2) being influenced to commit or aid in committing, or to collude in, or allow any fraud, ... or (3) being induced to do or omit to do any acts in violation of his official duty.” G.L. c. 268A, § 2(b). Put simply, it proscribes “unlawful bribery scheme[s].” Commonwealth v. Tobin, 392 Mass.
604, 608 (1984).
The elements of G.L. c. 268A, § 2(b) align with the
elements of the honest-services fraud counts of which
DiMasi was convicted. As the First Circuit explained in
affirming DiMasi’s conviction, the “scheme or artifice
to defraud” required by 18 U.S.C. § 1346 for an honest-
services fraud conviction “reaches only those schemes
that involve bribes or kickbacks.” McDonough, 727 F.3d
at 152. And in the “context of public officials, a bribe
is the receipt of ‘anything of value ... in return for
... being influenced in the performance of any official
act,’” id. (quoting 18 U.S.C. § 201)——a definition that
matches the felony defined in G.L. c. 268A, § 2(b)(1).
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As a result, the conduct for which DiMasi was convicted
beyond a reasonable doubt——performing multiple official
acts to ensure that Cognos received state software
contracts, in exchange for large sums of money from
Cognos and Lally——violated not only the federal honest-
services fraud statutes, but also their Massachusetts
analogue in G.L. c. 268A, § 2(b). See supra, at 17-21;
McDonough, 727 F.3d at 154 (explaining that the evidence
supported DiMasi’s convictions because “bribery can be
accomplished through an ongoing course of conduct, so
long as the evidence shows that the favors and gifts
flowing to a public official are in exchange for a
pattern of official actions favorable to the donor.”
(internal quotation marks and alterations omitted)).
Thus, the Secretary correctly determined that DiMasi is
subject to automatic disqualification under Section
45(m) for ten years from the date of his conviction.
CONCLUSION
For the foregoing reasons, this Court should
reverse the judgment of the Superior Court and remand with instructions to enter judgment in favor of the
Secretary.
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Respectfully submitted,
MAURA HEALEY ATTORNEY GENERAL
Julia E. Kobick, BBO # 680194 Assistant Attorney General Government Bureau One Ashburton Place Boston, Massachusetts 02108 (617) 963-2559 [email protected] Date: October 30, 2020
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CERTIFICATE OF COMPLIANCE
I, Julia E. Kobick, hereby certify that the foregoing brief complies with all of the rules of court that pertain to the filing of briefs, including, but not limited to, the requirements imposed by Rules 16 and 20 of the Massachusetts Rules of Appellate Procedure. The brief complies with the applicable length limit in Rule 20 because it is 46 pages long (not including the portions of the brief excluded under Rule 20) in 12- point Courier New font, which prints approximately 10 characters per inch.
______Julia E. Kobick, BBO # 680194 Assistant Attorney General
CERTIFICATE OF SERVICE
I hereby certify that on October 30, 2020, I filed with the Appeals Court and served the attached Brief of the Defendant-Appellant in DiMasi v. Galvin, No. 2020- P-0908, by electronic filing, on:
Meredith G. Fierro, Esq. CEK Boston, P.C. One International Place, Suite 1820 Boston, MA 02110 [email protected]
______Julia E. Kobick, BBO # 680194 Assistant Attorney General One Ashburton Place Boston, MA 02108 [email protected] (617) 963-2559
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ADDENDUM
Memorandum of Decision and Order on Cross-Motions For Judgment on the Pleadings, DiMasi v. Galvin, Docket No. 2084CV00090 (July 2, 2020)...... Add. 60
Judgment, DiMasi v. Galvin, Docket No. 2084CV00090 (July 2, 2020)...... Add. 81
G.L. c. 3, § 45...... Add. 83
DaSilveira v. Police Comm’r of Boston, 97 Mass. App. Ct. 1120 (2020) (Rule 1:28 Decision)...... Add. 86
59
Massachusetts Appeals CourtNOTIFY Case: 2020-P-0908 Filed: 10/30/2020 1:09 PM COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 2084CV00090
SALVATORE F. DIMASI
!§_.
WILLIAM F. GALVIN, in his official capacity as SECRETARY OF THE COMMONWEALTH OF MASSACHUSETTS
MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS
The plaintiff, Salvatore DiMasi ("DiMasi"), filed this action under G.L. c. 30A, § 14 and
G.L. c. 249, § 4. In it, DiMasi challenges the validity of an official action taken by the defendant,
William F. Galvin, in his official capacity as Secretary of the Conunonwealth of Massachusetts
(the "Secretary"), disqualifying DiMasi from registering as an executive or legislative agent 1
until June of 2021. DiMasi argues that the Secretary's automatic disqualification of him under
G.L. c. 3, § 45(m) constituted an error of law, and violated his constitutional right to due process.
DiMasi asks the Court to reverse the Secretary's decision, and award him costs and attorney's fees under 42 U.S.C. § 1983.2 Now before the Court are cross-motions for judgment on the pleadings filed by DiMasi and the Secretary pursuant to Mass. R. Civ. P. I2(c). For the reasons that follow, DiMasi's motion shall be ALLOWED in part and DENIED in part, and the
Secretary's motion shall be ALLOWED in part and DENIED in part.
1The General Laws use the terms "executive agent" and "legislative agent" to refer to lobbyists. See G.L. c. 3, § 39. For ease ofreference, the Court will use the term "lobbyist" throughout this opinion.
2 DiMasi's Complaint also asserts a request for declaratory relief pursuant to G.L. c. 231 A. The nature of this request is discussed infra at n. I 0.
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BACKGROUND
A. History of G.L. c. 3, § 45(m)
On November 7, 2008, then Massachusetts Governor Deval Patrick issued an executive
order establishing the Governor's Task Force on Public Integrity (the "Task Force"). The order
opined that "the Commonwealth's existing laws pertaining to ethics and lobbying were enacted
separately, at different times, and would benefit from a comprehensive reexamination that
assesses the adequacy of the existing regulatory frameworks, the sufficiency of the current
enforcement mechanisms and. penalties, and whether gaps exist between the separate systems
that could be closed through greater coordination." See Executive Order No. 506, 1118 Mass.
Register 1 (November 28, 2008). The order directed the Task Force to "examine the existing
legal and regulatory frameworks governing ethics and lobbying, and make recommendations
concerning any need for amendments to the current laws, regulations, investigative and
enforcement mechanisms, and penalties." Id.
On January 6, 2009, the Task Force issued its Report and Recommendations (the
"Report"). In the Report, the Task Force proposed modifications "to the rulemaking,
investigating, and enforcement authority" of the State Ethics Commission, the Secretary of the
Commonwealth, and the Massachusetts Attorney General. Id. at 4. The proposed changes
included, inter alia, "enhancements" to the Secretary's powers under General Laws chapter 3, §
45. See Report, Appendix A at 2-4. At the time, Section 45 provided that:
"The state secretary may, upon cause shown therefor, disqualify a. person from acting as an executive or legislative agent. A person against whom proceedings for disqualification are brought shall be allowed a public hearing before the secretary or his designee. Such hearings shall be subject to the provisions of chapter thirty A. No person who has been so disqualified shall be employed as an executive or legislative agent until the termination of the third regular session of the general court after such disqualification."
2
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The Task Force proposed legislation striking out the foregoing language, and replacing it with
provisions authorizing the Secretary to initiate a confidential, preliminary inquiry into any
alleged violation ofG.L. c. 3, §§ 39 through 50.3 See Report, Appendix Cat 4. If the preliminary
inquiry resulted in a finding ofreasonable cause to believe that a violation ofG.L. c. 3, §§ 39
through 50 occurred, the proposed legislation authorized the Secretary to conduct an
adjudicatory proceeding and issue orders requiring the violator to cease and desist such violation,
suspend or revoke the violator's lobbying license, and/or require the violator to pay a civil
penalty. Id. at 5-6.
In June of 2009, the Massachusetts Legislature enacted An Act to Improve the Laws
Related to Campaign Finance, Ethics, and Lobbying, St. 2009, c. 28 (the "Act"). Pursuant to the
Act, the Legislature adopted the Task Force's proposed changes to Section 45 as G.L. c. 3, §§
45(a)-(k),4 and added two further subsections-G.L. c. 3, §§ 45(1) and (m). Section 45(1) imposes penalties on"[a]ny person who violates the confidentiality" of a preliminary inquiry brought under Section 45(a). Section 45(m), the subsection at the heart of the parties' dispute in the case at bar, provides that "[t]he state secretary shall automatically disqualify any person convicted of a felony in violation of chapter 3, chapter 55, or chapter 268A from acting or registering as an executive or legislative agent for a period of 10 years from the date of conviction."
3 General Laws chapter 3, §§ 39-50 are statutes specifically aimed at regulating the act of lobbying in Massachusetts.
4 The language of G.L. c. 3, §§ 45(a)-(k) closely tracks the language of the Task Force's proposed legislation. There are, however, some relatively minor substantive differences, These include the deletion of proposed provisions expressly authorizing the Secretary to share records related to a confidential preliminary inquiry under Section 45(a) with the Inspector General, the State Ethics Commission, and the Director of the Office of Campaign and Political Finance Information, and the deletion of a proposed provision granting all witnesses in an adjudicatory proceeding initiated under Section 45(c) the right to be represented by counsel. 3
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B. DiMasi's Disqualification Under G.L. c. 3, § 45
Di Masi served as the Speaker of the Massachusetts House of Representatives from
September 28, 2004 through January 27, 2009. On June 15, 2011, based on conduct he engaged
in while serving as Speaker, DiMasi was convicted of one count of conspiracy in violation of 18
U.S.C. § 371, two counts of honest-services mail fraud in violation of 18 U.S.C. §§ 1341 and
1346, three counts of honest-services wire fraud in violation of 18 U.S.C. §§ 1343 and 1346, and
one count of extortion under color of official right in violation of 18 U.S.C. § 195 I. The United
States District Court for the District of Massachusetts sentenced DiMasi to eight years in federal
prison, followed by two years of supervised release. In November, 2016, DiMasi was granted
early release from prison in consideration of his demonstrated medical condition.
On March 22, 2019, DiMasi applied to the Secretary to register as a lobbyist. 5 On March
26,2019, the Secretary rejected DiMasi's application and issued him a notice explaining that, in accordance with G.L. c. 3, § 45(m), he was disqualified from acting as a lobbyist for ten years from the date of his federal convictions. On April 22, 2019, DiMasi submitted a notice of appeal to the Chief Legal Counsel of the Secretary's Lobbyist Division, and requested a hearing.
During a prehearing conference held on June 13, 2019, the Secretary reaffirmed its position that DiMasi was disqualified from acting as a lobbyist under Section 45(m), and argued that it also intended to disqualify DiMasi from registering as a lobbyist pursuant to G.L. c. 3,
5 General Laws c. 3, § 41 requires "[e]ach legislative agent, executive agent and lobbyist entity [to] file an annual registration statement with the state secretary .... Upon registration, the state secretary shall issue to each legislative agent and executive agent a license which shall entitle the holder to act as a legislative agent and executive agent for a client that has filed a registration statement pursuant to [G.L. c. 3, § 41]."
4
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§ 45G).6 On June 25, 2019, the Secretary filed a notice pursuant to G.L. c. 3, § 45(a). 7 The notice
charged that, in 2005 and 2006, DiMasi had engaged in conduct that violated G.L. c. 3, §§ 41,
42, and 43. Based on these allegations, the Secretary moved to consolidate DiMasi's appeal with
an adjudicatory proceeding pursuant to G.L. c. 3, § 45(c).8 DiMasi thereupon filed a Motion to
Strike the Secretary's alternative theory of disqualification. In this motion, DiMasi argued that
the Secretary had failed to comply with statutory prerequisites for an adjudicatory hearing under
G.L. c. 3, § 45, and that such a proceeding could not "provide ad hoc justification for the
automatic disqualification of Mr. DiMasi that ha[ d] already been imposed."
On November 26, 2019, the Presiding Officer heard argument on DiMasi's appeal and his Motion to Strike the Secretary's alternate theory of disqualification. At this hearing, Di Masi argued that the automatic disqualification of G.L. c. 3, § 45(m) should be read narrowly to disqualify only persons convicted of crimes under the state law provisions expressly enumerated therein.
On December 26, 2019, the Presiding Officer issued a decision upholding the Secretary's automatic disqualification ofDiMasi under G.L. c. 3, § 45(m). The Presiding Officer rejected
DiMasi's argument that the statute should be construed narrowly, and held that the language of
Section 45(m) should be read broadly to permit the Secretary to disqualify a person from
6 Section 45U) authorizes the Secretary to suspend or revoke the license and registration of a person found in violation ofG.L. c. 3, §§ 39-50 following an adjudicatory proceeding initiated under G.L. c. 3, § 45(c).
7 General Laws c. 3, § 45(a) permits the Secretary to initiate a preliminary inquiry into any alleged violation ofG.L. c. 3, §§ 39-50 "[u]pon receipt ofa sworn complaint ... or upon evidence which is deemed sufficient by the state secretary ...." Section 45(a) further requires the Secretary to "notify any person who is the subject of the preliminary inquiry of the existence of such inquiry and the general nature of the alleged violation within 30 days of the commencement of the inquiry."
8 An adjudicatory proceeding may be initiated under Section 45(c) "[i]fa preliminary inquiry indicates reasonable cause for belief that there has been a violation of sections 39 to 50 ...." G.L. c. 3, § 45(c).
5
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registering as a lobbyist if such person has been convicted under a federal statute that "closely
aligns" with the language of the state law provisions recited in Section 45(m). Finding that
federal honest-services crimes "closely align with the language ofM.G.L. c. 268A, § 2," the
Presiding Officer concluded that "the conditions for automatic disqualification under Section
45(m) [had] been satisfied" with respect to DiMasi.
The Presiding Officer issued a decision on DiMasi's Motion to Strike the same day. In
that decision, the Presiding Officer stated that the Secretary "appear[ed] to concede" that it had
not observed applicable statutory prerequisites, and had failed to provide authority in support of
its position that a preliminary inquiry was unnecessary in view ofDiMasi's well-documented
federal convictions. The Presiding Officer thus allowed DiMasi' s motion, but granted the
Secretary leave to re-file.9
DISCUSSION
The parties' respective cross-motions for judgment on the pleadings ask the Court to rule
on: (I) DiMasi's request for judicial review of the Secretary's disqualification decision, and
(2) DiMasi's claim that the Secretary's conduct violated his constitutional due process rights
under 42 U.S.C. § 1983. 10 The Court will address these matters in turn.
9 Although the decision did not expressly so state, the Secretary's leave to re-file is presumably contingent upon its compliance with applicable statutory prerequisites.
10 DiMasi's Motion for Judgment on the Pleadings additionally asks the Court to issue a declaration pursuant to the Declaratory Judgment Act, G.L. c. 23 IA, stating that the Secretary's alternate theory of disqualification was invalid and unenforceable. The Secretary's opposition correctly argues that DiMasi's request for declaratory relief does not present an "actual controversy" ripe for review under Chapter 231 A, in view of the Presiding Officer's decision to allow DiMasi's Motion to Strike the Secretary's alternate theory. DiMasi has, accordingly, filed a reply brief asking the Court to reserve ruling on his declaratory judgment claims until after it has issued a decision on the Secretary's interpretation of Section 45(m). If, following the issuance of the instant decision, the Secretary revives its attempt to disqualify DiMasi from registering as a lobbyist pursuant to its authority under G.L. c. 3, § 45(j), DiMasi's claim for declaratory relief would at that point ripen. How the Secretary would overcome the obvious hurdles posed by the statutes oflimitation applicable to the misconduct Di Masi purportedly engaged in some 15 years ago is unclear. In all events, the undersigned would retain jurisdiction of this case in order to address such issues should the need arise. 6
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I. The Secretary's Decision
A. Standard of Review
DiMasi's Complaint asks the Court to reverse the Secretary's decision under both the
Massachusetts Administrative Procedures Act, G.L. c. 30A, and the Commonwealth's certiorari
statute, G.L. c. 249, § 4. Inasmuch as DiMasi argues only that the Secretary's decision is based
on an error of law, the Court need not consider which of the two statutes provides the appropriate
avenue of review. See G.L. c. 30A, § 14(7) (granting the court the authority to remand, set aside,
or modify an agency's decision "if it determines that the substantial rights of any party may have
been prejudiced because the agency decision is ... [b ]ased upon an error oflaw"); Essex
Regional Ret. Bd. v. Swallow, 481 Mass. 241,245 (2019) (review under G.L. c. 249, § 4 only
permits the court to correct "a substantial error oflaw, evidenced by the record, which adversely
affects a material right of the plaintiff') (internal quotation marks omitted). The Court discerns no material difference in the nature of its review. See Agua King Fishery v. Conservation
Comm'n of Provincetown, 91 Mass. App. Ct. 712, 713 n.3 (2017) ("[T]he standard of appellate review under G.L. c. 30A, § 14, and G.L. c. 249, § 4, is essentially the same.").
To resolve this case under either statute, the Court must determine whether G.L. c. 3,
§ 45(m) permits the Secretary to disqualify a person from registering as a lobbyist if that person has been convicted within the past ten years of a federal crime that "closely aligns" with offenses specified within chapters 3, 55 and 268A of the General Laws. Since "[t]his question does not involve any gaps in the statute to which the [Secretary] needs to apply its specialized knowledge
.... [t]he interpretive question is purely legal[.]" Tirado v. Board of Appeal on Motor Vehicle
Liab. & Bonds, 472 Mass. 333,336 (2015). Accordingly, the undersigned will "review it de
7
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novo because '[t]he duty of statutory interpretation rests ultimately with the courts."' Id. at 337
(quoting Souza v. Registrar of Motor Vehicles, 462 Mass. 227, 229-30 (2012)).
B. Analvsis
General Laws c. 3, § 45(m) provides that "[t]he state secretary shall automatically
disqualify any person convicted of a felony in violation of chapter 3, chapter 55, or chapter 268A
from acting or registering as an executive or legislative agent for a period of IO years from the
date of conviction." DiMasi argues that Section 45(m) should be construed narrowly to allow
only the automatic disqualification of persons convicted of crimes specifically identified in
chapters 3, 55 and 268A of the General Laws. The Secretary counters that Section 45(m) should
be construed broadly to permit disqualification of a person convicted of any felony (state or
federal) for conduct proscribed by chapters 3, 55 and/or 268A. As explained more fully below,
the Court agrees with DiMasi and finds the Secretary's arguments unpersuasive.
"[A J fundamental tenet of statutory interpretation is that statutory language should be
given effect consistent with its plain meaning." Boss v. Leverett, 484 Mass. 553, 557 (2020)
(quoting Sullivan v. Brookline, 435 Mass. 353,360 (2001)). "If the language is clear and
unambiguous, [the statute] must be interpreted as written." Id. In this regard, the Court's
"principal objective is to ascertain and effectuate the intent of the Legislature in a way that is consonant with sound reason and common sense." Commonwealth v. Wassilie, 482 Mass. 562,
573 (2019).
In this case, the Secretary's mandate under the plain language of G.L. c. 3, § 45(m) is clear. He shall automatically disqualify a person convicted of a crime under chapters 3, 55 and/or 268A from acting or registering as a lobbyist for ten years from the date of conviction.
When something must be done "automatically," it must be done "with little or no direct human
8
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control'' and "without conscious thought or intent." See Black's Law Dictionary (11th ed. 2019)
( defining "automatic"). Thus, by its clear terms, Section 45(m) does not grant the Secretary discretion to consider whether to disqualify someone. who has not been convicted of an offense under chapters 3, 55 and/or 268A because, in the Secretary's view, the person was convicted of a federal crime that "closely aligns" with the prohibitions of those chapters. Cf. MacLean v. State
Bd. ofRet., 432 Mass. 339, 351-52 (2000) (statute requiring automatic forfeiture of pension benefits upon conviction did "not allow the [retirement] board any discretion as to the revocation of pension benefits"); Rushworth v. Registrar of Motor Vehicles, 413 Mass. 265,273 (1992)
(holding that the Registrar "ha[d] no discretion on whether to suspend" a driver's license under statute that required suspension to "follow[] automatically from a conviction on an underlying drug offense ...."); State v. Bodyke, 933 N.E.2d 753, 759-60 (Ohio 2016) (finding that judges no longer had discretion to determine which classification level best fit individual sex offenders where new legislation made classification level automatic based on the offense). The Secretary's only task under Section 45(m) is to look at a person's criminal record and determine whether he or she has been convicted under chapters 3, 55 or 268A within the past ten years. If yes, then disqualification from lobbying shall automatically follow. For this reason, the Secretary's determination that DiMasi-who was not convicted of any of the referenced state law offenses must nevertheless be disqualified because (in the Secretary's judgment) his federal convictions
"closely align" with crimes set forth in G.L. c. 268A, § 2 violated the clear and unambiguous language of Section 45(m).
To defend its departure from the statutory text, the Secretary advances three arguments.
First, the Secretary insists that a broad interpretation of Section 45(m) is required to comply with principles of statutory construction that prohibit the Court from interpreting a statute "so as to
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render it or any portion ofit meaningless." Adamowicz v. Ipswich, 395 Mass. 757, 759 (1985).
More specifically, the Secretary contends that G.L. c. 55 does not identify any offenses that are
felonies, 11 and, therefore, the narrow construction of Section 45(m) advocated by DiMasi renders
use of the word "felony" meaningless with respect to chapter 55. Stated differently, the
Secretary's position is that the only way to give meaning to the term "felony" in the context of a
disqualifying crime under chapter 55 is to read Section 45(m) as triggered by the conviction of
any felony (under the law of any state or federal jurisdiction) if the conduct underlying same
violates chapter 55. Although such a broad construction of Section 45(m) concededly preserves
meaning for the term "felony," it produces an even more anomalous result of its own: viz., none
of the crimes referenced in Chapter 55 itself would ever trigger disqualification. In other words,
if automatic disqualification only flows from convictions offelonies set forth in chapters 3, 55 and 268A, and none of the offenses recited in chapter 55 are felonies, then no conviction under chapter 55 could ever be the predicate for automatic disqualification. The Secretary's interpretation thus reads more language out of Section 45(m) than the common-sense construction of the law urged by DiMasi. See Commonwealth v. Pagan, 445 Mass. 315, 319
(2005) (quoting Capone v. Zoning Bd. of Appeals of Fitchburg, 389 Mass. 617, 622 (1983))
11 "The distinction between felony and misdemeanor offenses is established by statute: crimes punishable by confinement in a State prison are felonies; all other crimes are misdemeanors." Commonwealth v. Hill, 57 Mass. App. Ct. 240,248 (2003) (citing G.L. c. 274, § I). Where a statute does not expressly state whether a given crime is punishable by confinement in state prison (as opposed to a house of correction), the court looks to the term of confinement the statute prescribes. See Commonwealth v. Zawatsky. 41 Mass. App. Ct. 392, 395 (1996). Because "a sentence to a house of correction may not exceed two and one-half years," statutes that prescribe terms of incarceration in excess of two and a half years are crimes necessarily punishable by confinement in state prison, and are thus felonies. hi, None of the offenses set forth in chapter 55 are punishable by confinement in state prison or in excess of two and one-half years. As such, the crimes referenced therein are all misdemeanors.
10
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("Where the draftsmanship ofa statute is faulty or lacks precision, it is [the court's] duty to give
the statute a reasonable construction."). 12
The Secretary's contention, again driven by the desire to preserve meaning for the term
"felony," that automatic disqualification under Section 45(m) should be deemed triggered where
a 'person has been convicted of "conduct that violates" the enumerated statutes is likewise at odds
with the plain language of Section 45(m). Section 45(m) references "convict[ions ]" that are "in
violation of' specified statutes, and nowhere contains the word "conduct" at all. The manner of
statutory construction thus urged by the Secretary is disfavored under settled canons. See
Commonwealth v. Billingslea, 484 Mass. 606, 622 (2020) ("It is a well-established canon of
construction that, where the statutory language is clear, the courts must impart to the language its
plain and ordinary meaning."); see also Commissioner of Corr. v. Superior Court Dept. of the
Trial Court, 446 Mass. 123, 126 (2006) (the court may not "add words" to a statute "that the
Legislature had an option to, but chose not to include"). If the language of Section 45(m) were
interpreted to trigger automatic disqualification upon a conviction for "conduct that violates" chapters 3, 55 and/or 268A, it would expand the enumerated disqualification triggers from three specific categories of state law offense to literally countless violations of laws propagated by foreign jurisdictions. Further, instead of being mandatory ("shall") and "automatic," disqualification would turn on the Secretary's discretionary determination that a conviction under the law of the foreign jurisdiction is sufficiently "comparable to" or "aligned with" one of
12 The Secretary's interpretation of Section 45(m) seems particularly ill advised when one recognizes that the language whose meaning the Secretary labors so mightily to preserve in this case ("felony") appears to lie at the very margin of the statute's concerns. The Legislature surely gave little thought to whether the disqualifying crime under Section 45(m) happened to be a felony or a misdemeanor. Its unmistakable intent, rather, was to disqualify individuals seeking to register as lobbyists in Massachusetts for a period often years if they had been convicted of one or more of the crimes specified in the enumerated General Laws. Whether those referenced crimes were or were not punishable by more or less than 2 1/2 years' imprisonment does not appear to have been of material concern.
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the enumerated statutes. Such vast expansions of the law are neither expressed in, nor
contemplated by, the statute that the Legislature enacted here. See Fascione v. CNA Ins. Cos.,
435 Mass. 88, 94 (2001) (declining to expand remedies available under statute where there was
no "evidence that the Legislature desired such a result").
To preserve meaning for the term "felony" under the canon of construction relied upon
by the Secretary would require the Court to engage in a substantial rewrite of the statute, and to
do so by modifying the text of the law in its core application. If the only way to salvage
meaning for the term "felony" is to redraft the rest of the statute entirely, adding words and
concepts to the law that were never adopted by the Legislature, then what the Secretary proposes
is to honor one canon of construction by doing violence to another. This is an invitation the
Court must decline. Compare Adamowicz, 395 Mass. at 759 (requiring a statute to be interpreted
so that no portion thereof is rendered meaningless) with General Elec. Co. v. Department of
. Envtl. Protection, 429 Mass. 798,803 (1999) (court will not "read into [a] statute a provision which the Legislature did not see fit to put there, whether the omission came from inadvertence or set purpose").
The Secretary next argues that a broader interpretation of Sectio_n 45(m) is more consistent with the Act's legislative purpose. See 81 Spooner Rd. LLC v. Brookline, 452 Mass.
109, 113 (2008) (quoting Hanlon v. Rollins, 286 Mass. 444,447 (1934)) ("A statute must be construed '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."'). In support, the Secretary maintains that, through the 2009 revisions to Section 45(m), the Legislature sought to strengthen
12
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the Secretary's authority to regulate lobbyists and thereby reduce the risk of corruption in the
lawmaking process. The Secretary contends that the narrow construction of Section 45(m)
advocated by DiMasi offends this salutary purpose. The Court does not agree.
Although the 2009 revisions to Section 45 did strengthen the Secretary's authority over
lobbyists in some respects (for example, by empowering the Secretary to issue subpoenas and
impose fines), nothing in the statute's history suggests that the Legislature intended the
Secretary's authority over lobbyists to be unfettered or without limit. Quite the contrary. The
Legislature that enacted Section 45(m) in 2009 modified a version of the law that had previously
afforded the Secretary authority to treat a broad and unspecified range of offenses (including
crimes under both federal law and the law of other states) as the "cause" triggers for
disqualification from lobbying. Although the passage of Section 45(m) granted the Secretary
new authority to disqualify a prospective lobbyist from registering for a license in the first place,
it placed clear limitations on that authority by particularizing the triggers for disqualification
(three referenced state statutes) and making such disqualification automatic rather than
discretionary. This is an intended balance that the Secretary's expansive interpretation of Section
45(m) would undeniably disturb.
If, as the Secretary contends, the impetus for the 2009 amendments to Section 45 was the
fact that DiMasi and other elected officials were then subjects of federal investigation, the
Legislature's failure to enumerate any federal statutes as triggers for automatic disqualification is
' all the more telling. Time and again, the Legislature has shown that it knows how to provide for a broader range of consequential triggers when it intends to do so. See, ~. G.L. c. 6, § l 78C
(defining.a "sex offense" as any violation of Massachusetts law enumerated as a sex offense "or a like violation of the laws of another state, the United States or a military, territorial or Indian
13
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tribal authority"); G.L. c. 90, § 24(f)(l) (operator's license of a person under 21 years old may be
suspended for three years upon refusal to submit to a chemical test if he has previously been
convicted of one the offenses enumerated in the statute "or a like violation by a court of any
other jurisdiction"); G.L. c. 279, § 25(b) (habitual offender must have been convicted twice
previously of one of the offenses enumerated in the statute or "of a like violation of the laws of
another state, the United States or a military, territorial or Indian tribal authority"). See also State
Bd. ofRet. v. Bulger, 446 Mass. 169, 179-80 (2006) (holding that federal convictions could
trigger G.L. c. 32, § 15(4), which does not enumerate any specific crimes, but requires public
employees to forfeit pension "after final conviction of a criminal offense involving violation of the laws applicable to his office or position").
The Supreme Judicial Court has explicitly recognized the significance of the
Legislature's failure to reference a federal conviction to trigger legal consequence when presented with a question closely analogous to the issue sub judice. In Collatos v. Boston Ret.
Bd., 396 Mass. 684, 687-88 (1986), the Court held that a statute requiring public employees who were convicted of enumerated state laws to forfeit their pension benefits did not apply to a public employee who had been convicted of a similar crime under federal law. The Court reasoned that
"[t]he Legislature well knows how to use a Federal conviction to trigger a legal consequence ... and the lack of such language ... is an indication that no such result was intended," artd that
"[e ]ven if the Legislature did not foresee the possibility of a public employee who might have been convicted under one of the two enumerated Massachusetts statutes being convicted under an arguably equivalent Federal statute, it is not [the court's] function judicially to amend the statute to cover this eventuality." Id. The principle thus articulated in Collatos lights the path to reasonable statutory construction in the case at bar.
14
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The Secretary counters that the rationale of Collatos does not apply here because, unlike
Section 45(m), the statute at issue in Collatos was penal in nature. See id. at 686 ("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 .... [and] must be construed strictly.").
According to the Secretary, therefore, the ruling in Collatos was a product of the rule oflenity, and is inapposite to the construction of a regulatory statute like Section 45(m). The Court is not persuaded.·
Where "statutory language 'can plausibly be found to be ambiguous,' the rule oflenity requires the defendant to be given 'the benefit of the ambiguity."' Commonwealth v. Carrion,
431 Mass. 44, 45-46 (2000) (quoting Commonwealth v. Roucoulet, 413 Mass. 647,652 (1992)).
"The rule of lenity does not require, however, that absent an ambiguity we construe a penal statute most favorably to a defendant." Id. at 46. Collatos expressly stated that the statute in question was "clear and unambiguous." 396 Mass. at 686. For this reason, and although cited by
Collatos, the rule of lenity did not strictly control the case's holding, and does not bar application of the interpretive principle expounded therein to the statute at issue here. Indeed, the very same principle is regularly applied to penal and regulatory statutes alike. See, .\h&, City Elec. Supply
Co. v. Arch Ins. Co., 481 Mass. 784, 789 (2019) ("We have long recognized that statutes must be interpreted as enacted and statutory omissions cannot be supplied by the court.") (internal quotation marks omitted); Entergy Nuclear Generation Co v. Department ofEnvtl. Protection,
459 Mass. 319, 329 (2011) ("We will not create provisions the Legislature did not see fit to include ...."); Commonwealth v. Boe, 456 Mass. 337, 347-48 (2010) (it is improper for a court to read a provision into a statute that the Legislature omitted "under the guise of correcting a perceived inadequacy or injustice in a statutory scheme").
15
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Finally, the Secretary argues that a narrow construction of Section 45(m) produces an
"absurd" result, insofar as it permits an individual to register as a lobbyist after conviction for
' conduct similar to the conduct proscribed by chapters 3, 55 and 268A based on no more than the
fortuity of the venue of the individual's prosecution. See Bridgewater State Univ. Found. v.
Board of Assessors of Bridgewater, 463 Mass. 154, 158 (2012) (quoting Attorney Gen. v. School
Comm. of Essex, 387 Mass. 326, 336 (1982)) ("[W]e will not adopt a literal construction of a
statute if the consequences of such construction are absurd or unreasonable. We assume the
Legislature intended to act reasonably."). The Court does not agree.
First, the result of the narrow construction of Section 45(m) decried by the Secretary is no
more absurd than the result of the more expansive construction it advocates. Once again, the
broad reading of Section 45(m) urged by the Secretary would invest the Secretary with
authority to construe which among scores of federal and non-Massachusetts crimes are
sufficiently analogous to the prohibited conduct set forth in chapters 3, 55 and 268A when
passing on lobbyist applications. One might fairly deride such a result as absurd, when the very
purpose of this statute was to eliminate the Secretary's discretion to disqualify would-be
lobbyists and replace such discretion with an automatic disqualification from lobbying if the
applicant stood convicted of one of the specifically enumerated offenses.
Second, the Legislature made the decision to specify particular statutes as triggers for
automatic disqualification in the face of public comment and proposed legislation seeking to
1 disqualify all types of felons from registering as lobbyists. See House Bill No. 3500, 186 h Gen.
Ct. (Mass. 2009). The legislation enacted as Section 45(m) thus reflects a middle ground
between the law as it existed in 2009 (broadly allowing anyone convicted of crime to register as
a lobbyist following his or her release from commitment), on the one hand, and permitting no
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one convicted of any felony to practice lobbying, on the other. The compromise struck thus
provided for disqualification only in a limited range of cases involving particular violations of
the public trust, but assured such disqualification by making it "automatic" rather than subject to
case-by-case determination by the Secretary. To give effect to the legislative bargain evidently
reached in Section 45(m) is to respect the law as passed, and is not a surrender to absurdity. See
Alves's Case, 451 Mass. 171, 179-80 (2008) ("The Legislature is presumed to intend and
understand all the consequences of its actions.").
Finally, even if it is not automatic, there are alternate pathways to disqualifying an
individual from serving as a lobbyist if that individual has been convicted of conduct under a
federal statute that is similar to the conduct proscribed by chapters 3, 55 and/or 268A. For
example, if a prospective lobbyist engages in conduct that results in federal charges or
convictions, and his or her conduct also violates one or more provision of chapters 3, 55 or
268A, the Attorney General is empowered to prosecute the prospective lobbyist under state law.
If such prosecution results in a conviction under chapters 3, 55 or 268A, the automatic disqualification provision of Section 45(m) is triggered. Similarly, if a person registers as a lobbyist who was recently convicted under a federal statute for conduct that is also prohibited by
G.L. c. 3, §§ 39-50, the Secretary can initiate proceedings against the registrant pursuant to its authority under G.L. c. 3, §§ 45(a)-(i). If, following an adjudicatory proceeding, the Secretary concludes that a violation of G.L. c. 3, §§ 39-50 actually occurred, the Secretary can suspend or revoke the violator's lobbyist license and registration under G.L. c. 3, § 45G). In fact, the
Secretary in this case attempted to exercise its authority under G.L. c. 3, §§ 45(a)-(i) in a similar manner when it asserted an alternate basis for DiMasi's disqualification and requested an adjudicatory hearing. All of the above represent reasonable pathways for avoiding the
17
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undesirable results the Secretary denounces. There is, therefore, no policy-borne need to torture
the text of Section 45(m) as the Secretary does in order to avoid such results. 13
For the foregoing reasons, the Court finds that the Secretary's broad interpretation and
application of Section 45(m) to disqualify DiMasi from lobbyist licensing and registration
constituted an error of law. It may not stand. See G.L. c. 30A, § 14(7).
II. 42 U.S.C. § 1983
DiMasi next claims that the Secretary's failure to provide him with a hearing before
disqualifying him from "pursuing his chosen profession" under Section 45(m) denied him his
constitutional right to due process oflaw, in violation of 42 U.S.C. § 1983. The Court does not
agree.
"The due process clause of the Fourteenth Amendment to the United States Constitution
protects against deprivations of interests in 'life, liberty or property, without due process of
law."' Hoffer v. Board of Registration in Med., 461 Mass. 451,454 (2012). "'Procedural due
process protections,' such as the right to a hearing, 'are only triggered when a liberty or property
interest is at issue."' Id. (quoting Hudson v. Commissioner of Corr., 431 Mass. 1, 7 (2000)).
"Generally, an individual has a property interest in a benefit when the relevant law establishes
certain eligibility criteria which, if met, entitle an individual to the benefit." Doyle v. Department
13 The Secretary argues forcefully that, as a matter of public policy, it should not make a difference whether a prospective lobbyist was convicted of one of the state law crimes enumerated in Section 45(m) or a cognate crime in another jurisdiction. Section 45(m), it urges, should therefore be construed to give effect to such sound public policy. The argument is, to be sure, not without some appeal. But while there may well be good reason to have a statute of such breadth, particularly where matters of public integrity are concerned, that is simply not the law the Legislature enacted. If the Legislature desires such a law, it must go through the legislative process to amend G.L. c. 3, § 45. Indeed, there is reported precedent for the Legislature doing precisely that. See, M.c, Bulger, 446 Mass. at 179-80 (citing Gaffney v. Contributory Ret. Appeal Bd., 423 Mass. 1,4 (1996)) (recognizing that the Legislature enacted G.L. c. 32, § 15(4) in response to the court's decision in Collatos in order "to avoid having the precise form of the criminal enforcement action make a difference" as to whether a public employee who had engaged in misconduct was required to forfeit his pension). 18
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oflndus. Accidents, 50 Mass. App. Ct. 42, 45-46 (2000); see also Welch v. Paicos, 66 F. Supp.
2d 138, 164-65 (D. Mass. 1999)("We will ... find a property interest in an applicant ... only jf
the benefit, license, or program for which he applies is routinely granted to all applicants meeting
objective or easily judged criteria."). By contrast, where "the relevant law provides the awarding
agency or other entity discretion to decide whether to grant benefits to a potential recipient, such
discretion negates any entitlement claim which the potential recipient may have had." Id. at 46;
see also Hoffer, 461 Mass. at 454-55 ("[T]he govermnent's decision to deny a person a future
benefit that is discretionary ... or is conditioned on ... complex or subjective criteria will not normally implicate procedural due process.") (internal quotation marks omitted) .
. Under Massachusetts law, anyone may register as a lobbyist and, in turn, receive a lobbyist license, unless they have been "convicted of a felony in violation of chapter 3, chapter
55, or chapter 268A" of the General Laws, in which case G.L. c. 3, § 45(m) requires the
Secretary to disqualify the prospective registrant automatically. 14 Accordingly, the Secretary's decision to disqualify here was neither discretionary nor based on "complex or subjective criteria." See Hoffer, 461 Mass. at 454-55. As a person who does not meet the standard for automatic disqualification under Section 45(m) and wishes to register as lobbyist in
Massachusetts, therefore, DiMasi possesses "a legitimate claim of entitlement" to do so. See id. at 454; Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972) ("To have a property interest in a benefit, a person must have .... a legitimate claim of entitlement to it."). Compare
Roslindale Motor Sales, Inc. v. Police Comm'r of Boston, 405 Mass. 79, 82-83 (1989) (applicant
14 The language in G.L. c. 3, § 45G) vesting the Secretary with discretion to "suspend[] for a specified period or revoke[e] the license and registration" ofan individual deemed to have violated G.L. c. 3, §§ 39-50 necessarily refers to penalties the Secretary can impose on persons who already possess a lobbyist license and registration. This provision of the law is not implicated in the case at bar.
19
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seeking license to deal used motor vehicles had no claim of entitlement to license where licensing process was wholly discretionary).
Having found that DiMasi possessed a cognizable property interest for purposes of the due process clause of the Fourteenth Amendment, the Court turns next to the question of whether
DiMasi was denied such process as was due. DiMasi is correct insofar as he contends that due process generally "requires that an individual must receive notice and a hearing prior to govermnental deprivation of property." Leger v. Commissioner of Revenue, 421 Mass. 168, 172
(1995). Even so, however, the U.S. Supreme Court "has recognized, on many occasions, that where a State must act quickly, or where it would be impractical to provide predeprivation process, postdeprivation process satisfies the requirements of the Due Process Clause." Gilbert v.
Romar, 520 U.S. 924, 930 (1997). "To determine what process is constitutionally due, we have generally balanced three distinct factors: 'First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Govermnent's interest."' Id. at 931 (quoting Matthews v. Eldridge, 424 U.S. 319,
335 (1976)). Applying the constitutional balance so framed, the Court concludes that DiMasi's due process claim fails.
Although DiMasi's interest in making a living as a lobbyist is strong, the Commonwealth has an equally strong interest in promoting the integrity of government employees and the public's confidence in legislative decision-making. The automatic disqualification provision of
Section 45(m) represents a reasonable measure to ensure that persons convicted of corrupt practices under state law cannot thereafter wield influence over public officials, and in so doing undermine the public's confidence in their government and its lawmaking. Cf. Gilbert, 520 U.S.
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at 932 (recognizing that states have a significant interest in "immediately suspending, when
felony charges are filed against them, employees who occupy positions of great public trust and
high public visibility").
Setting aside what occurred in the instant case, the risk of erroneous deprivation under
Section 45(m) is generally low, due to the fact that whether someone has been convicted of
violating a particular statute is an independently verifiable question that can be answered "yes"
or "no." For the same reason, providing a pre-deprivation hearing to individuals automatically
disqualified from registering as lobbyists under G.L. c. 3, § 45(m) would serve little purpose. On
balance, the Court finds that DiMasi's post-deprivation right to appeal his automatic
disqualification to the Secretary's Presiding Officer satisfied the Fourteenth Amendment's due
process clause. DiMasi's constitutional claim under Section 1983, therefore, fails as a matter of.
law.
CONCLUSION AND ORDER
For the foregoing reasons, DiMasi' s Motion for Judgment on the Pleadings is
ALLOWED as to his request to reverse the Secretary's disqualification decision, and DENIED
as to his due process claim under 42 U.S.C. § 1983. The Secretary's motion, ·in turn, is DENIED as to its request to affirm its underlying disqualification decision, and ALLOWED as to
DiMasi's due process claim under 42 U.S.C. § 1983.
SO ORDERED.
Robert B. Gordon Justice of the Superior Court
Dated: July 2, 2020
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. I 9 Trial Court of Massachusetts JUDGMENT ON THE PLEADINGS The Superior Court
DOCKET NUMBER Michael Joseph Donovan, Clerk of Court 2084CV00090
CASE NAME COURT NAME & ADDRESS DiMasi, Salvatore F Suffolk County Superior Court - Civil vs. Suffolk County Courthouse, 12th Floor William F Galvin in his official capacity as Secretary of the Three Pemberton Square Commnowealth of Massachusetts Boston, MA 02108
This action came before the Court, Hon. Robert B Gordon, presiding , upon a motion for judgment on the pleadings,
After hearing or consideration thereof;
It is ORDERED AND ADJUDGED: That for the reasons set forth in the Court's Memorandum of Decision and Order on Cross-Motions for Judgment on the Pleadings, dated July 2, 2020, the Plaintiffs motion is ALLOWED as to his request to reverse the Secretary's disqualification decision, and DENIED as to his due process claim under 42 U.S.C. Sec. 1983. The Secretary's motion is DENIED as to its request to affirm its underlying decision, and ALLOWED as to Plaintiffs due process claim under 42 U.S.C. Sec. 1983. Judgment shall, and hereby does, enter accordingly. ~l..9- ~r ~-;·J.--b rv\r- L.c,t(C.,
DATE JUDGMENT ENTERED 07/02/2020
Date/Time Printed. 07-02-2020 15.05.00 I / SCV1 17. 07/2016 Add. 081 Massachusetts Appeals Court Case: 2020-P-0908 Filed: 10/30/2020 1:09 PM
2084CV00090
Julia Kobick, Esq. Office of the Massachusetts Attorney General One Ashburton Place 20th Floor Add. 082 Boston, MA 02108 Massachusetts Appeals Court Case: 2020-P-0908 Filed: 10/30/2020 1:09 PM
§ 45. Inquiry and adjudicatory proceedings relating to alleged..., MA ST 3 § 45
Massachusetts General Laws Annotated Part I. Administration of the Government (Ch. 1-182) Title I. Jurisdiction and Emblems of the Commonwealth, the General Court, Statutes and Public Documents (Ch. 1-5) Chapter 3. The General Court
M.G.L.A. 3 § 45
§ 45. Inquiry and adjudicatory proceedings relating to alleged violations of Secs. 39 to 50
Effective: January 1, 2010 Currentness
(a) Upon receipt of a sworn complaint signed under pains and penalties of perjury, or upon receipt of evidence which is deemed sufficient by the state secretary, the state secretary shall initiate a preliminary inquiry into any alleged violation of sections 39 to 50, inclusive. At the commencement of a preliminary inquiry into any such alleged violation, the state secretary shall notify the attorney general. All proceedings and records relating to a preliminary inquiry or initial staff review used to determine whether to initiate an inquiry shall be confidential, except that the state secretary may provide to the attorney general, the United States Attorney or a district attorney of competent jurisdiction evidence which may be used in a criminal proceeding. Any information provided by the state secretary pursuant to this section shall be confidential pursuant to this section and section 4 of chapter 268B, except that such information may be used by the officer or agency to whom it was provided in any investigation or subsequent proceedings. The state secretary shall notify any person who is the subject of the preliminary inquiry of the existence of such inquiry and the general nature of the alleged violation within 30 days of the commencement of the inquiry.
(b) If a preliminary inquiry fails to indicate reasonable cause for belief that there has been a violation of sections 39 to 50, inclusive, the state secretary shall immediately terminate the inquiry and shall within 10 days so notify, in writing, the complainant, if any, and the person who had been the subject of the inquiry.
(c) If a preliminary inquiry indicates reasonable cause for belief that there has been a violation of sections 39 to 50, inclusive, the state secretary may initiate an adjudicatory proceeding to determine whether there has been such a violation.
(d) The state secretary may require by summons the attendance and testimony of witnesses and the production of books, papers or other financial documents directly relating to any matter being investigated pursuant to sections 39 to 50, inclusive, provided that the state secretary's subpoena power shall be limited to obtaining employment contracts and other contracts or agreements related to services rendered, work performed or compensation received in connection with executive lobbying or legislative lobbying. Any justice of the supreme judicial court or the superior court may, upon application by the state secretary, issue a summons to be served in the same manner as summonses for witnesses in criminal cases, issued on behalf of the commonwealth and all the provisions of law relative to summonses shall apply to summonses issued under this section so far as applicable. Any justice of the supreme judicial court or the superior court may upon application by the state secretary compel the attendance of witnesses summoned as aforesaid and the giving of testimony under oath before the state secretary in furtherance of any investigation in the same manner and to the same extent as before said courts.
(e) The state secretary, or his designee, may administer oaths and may hear testimony or receive other evidence in any proceeding.
© 2020 Thomson Reuters. No claim to originalAdd. 083 U.S. Government Works. 1 Massachusetts Appeals Court Case: 2020-P-0908 Filed: 10/30/2020 1:09 PM
§ 45. Inquiry and adjudicatory proceedings relating to alleged..., MA ST 3 § 45
(f) All testimony in an adjudicatory proceeding shall be under oath. All parties shall have the right to call and examine witnesses, to introduce exhibits, to cross-examine witnesses who testify, to submit evidence, and to be represented by counsel. Before testifying, all witnesses shall be given a copy of the regulations governing adjudicatory proceedings.
(g) Any person whose name is mentioned during an adjudicatory proceeding of the state secretary and who may be adversely affected thereby may appear personally before the state secretary on his own behalf, with or without counsel, to give a statement in opposition to such adverse mention or file a written statement of such opposition for incorporation into the record of the proceeding.
(h) All adjudicatory proceedings of the state secretary pursuant to this section shall be public and shall be subject to chapter 30A.
(i) Within 30 days after completion of deliberations, the state secretary shall publish a written report of his findings and conclusions.
(j) Upon a finding pursuant to an adjudicatory proceeding that there has been a violation, the state secretary may issue an order: (1) requiring the violator to cease and desist such violation; (2) requiring the violator to file any report, statement or other information as required by sections 39 to 50, inclusive; (3) suspending for a specified period or revoking the license and registration of the violator; or (4) requiring the violator to pay a civil penalty of not more than $10,000 for each violation. The state secretary may file a civil action in superior court to enforce this order.
(k) Final action by the state secretary under this section shall be subject to review in superior court upon petition of any party in interest filed within 30 days after the action for which review is sought. The court shall enter a judgment enforcing, modifying, or setting aside the order of the state secretary, or it may remand the proceedings to the state secretary for such further action as the court may direct. If the court modifies or sets aside the state secretary's order or remands the proceedings to the state secretary, the court shall determine whether such modification, set aside, or remand is substantial. If the court does find such modification, set aside, or remand to be substantial, the petitioner shall be entitled to be reimbursed from the treasury of the commonwealth for reasonable attorneys' fees and all court costs incurred by him in the defense of the charges contained in the proceedings. The amount of such reimbursement shall be awarded by the court but shall not exceed $20,000 per person, per case.
(l) Any person who violates the confidentiality of an inquiry under this section shall be punished by a fine of not more than $1,000 or by imprisonment for not more than 1 year, or both.
(m) The state secretary shall automatically disqualify any person convicted of a felony in violation of chapter 3, chapter 55, or chapter 268A from acting or registering as an executive or legislative agent for a period of 10 years from the date of conviction.
Credits Added by St.1973, c. 981, § 8. Amended by St.1994, c. 43, §§ 2, 3; St.2009, c. 28, § 12, eff. Jan. 1, 2010.
M.G.L.A. 3 § 45, MA ST 3 § 45 Current through Chapter 113 of the 2020 Second Annual Session of the General Court.
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§ 45. Inquiry and adjudicatory proceedings relating to alleged..., MA ST 3 § 45
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© 2020 Thomson Reuters. No claim to originalAdd. 085 U.S. Government Works. 3 Massachusetts Appeals Court Case: 2020-P-0908 Filed: 10/30/2020 1:09 PM
DaSilveira v. Police Commissioner of Boston, 97 Mass.App.Ct. 1120 (2020) 145 N.E.3d 918
After a hearing, a Boston Municipal Court judge affirmed. DaSilveira then filed a complaint for certiorari in Superior 97 Mass.App.Ct. 1120 Court, pursuant to G. L. c. 249, § 4. A hearing was held Unpublished Disposition after the parties submitted cross motions for judgment on NOTICE: THIS IS AN UNPUBLISHED OPINION. the pleadings. A Superior Court judge ruled in favor of the NOTICE: Summary decisions issued by the Appeals commissioner. On appeal from the Superior Court judgment, Court pursuant to its rule 1:28, as amended by DaSilveira contends that the commissioner's decision was 73 Mass. App. Ct. 1001 (2009), are primarily arbitrary and capricious because it was based on a twenty-five directed to the parties and, therefore, may not year old charge that was ultimately dismissed. We affirm. fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are 3 not circulated to the entire court and, therefore, Class A large capacity. represent only the views of the panel that decided Discussion. When reviewing a denial of an application for the case. A summary decision pursuant to rule 1:28 a license to carry, a Boston Municipal Court judge, after an issued after February 25, 2008, may be cited for evidentiary hearing, may direct the licensing authority to issue its persuasive value but, because of the limitations a license only if the judge finds that the licensing authority noted above, not as binding precedent. See Chace had “no reasonable ground” for denying the license and that v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008). the applicant “is not prohibited by law from possessing [the Appeals Court of Massachusetts. same].” G. L. c. 140, § 131 (f). See Chardin v. Police Vargas I. DASILVEIRA Comm'r of Boston, 465 Mass. 314, 317 (2013). A finding v. that the licensing authority lacked any reasonable ground to POLICE COMMISSIONER deny the license “is warranted only upon a showing by the applicant that the licensing authority's ‘refusal [to grant ... the OF BOSTON & another. 1 license] was arbitrary, capricious, or an abuse of discretion.’ ”
1 Roxbury Division of the Boston Municipal Godfrey v. Chief of Police of Wellesley, 35 Mass. App. Ct. Court Department. 42, 46 (1993), quoting Chief of Police of Shelburne v. Moyer, 16 Mass. App. Ct. 543, 546 (1983). 19-P-431 | “On certiorari review, a Superior Court judge may ‘correct Entered: May 26, 2020 only a substantial error of law, evidenced by the record, which adversely affects a material right of the plaintiff.’ ” Nichols v. Chief of Police of Natick, 94 Mass. App. Ct. By the Court (Rubin, Blake & Wendlandt, JJ. 2 ) 739, 744 (2019), quoting Chardin, 465 Mass. at 321 n.15. Our review is governed by the same standard. 4 See Nichols, 2 The panelists are listed in order of seniority. supra, quoting Frawley v. Police Comm'r of Cambridge, 473 Mass. 716, 729 (2016) (“Judicial review ... proceeds under the same standard whether conducted by [the appellate] MEMORANDUM AND ORDER court or ... the Superior Court”). Thus, our task is to review PURSUANT TO RULE 1:28 the facts as found by the Boston Municipal Court judge to determine whether a substantial error of law was made *1 The plaintiff, Vargas I. DaSilveira, applied for a license when she affirmed the commissioner's denial of DaSilveira's to carry a firearm. 3 After an investigation conducted by his application. See Nichols, supra at 745. designee, Lieutenant Detective John McDonough, the Boston Police Commissioner (commissioner) denied the application 4 In view of our standard of review, we need not on the basis that DaSilveira was “unsuitable,” pursuant to reach DaSilveira's contention that the Superior G. L. c. 140, § 131. DaSilveira appealed, pursuant to Court judge exceeded her authority under G. L. c. 249, § 4, by questioning the validity G. L. c. 140, § 131 (f), to the Boston Municipal Court. of the continuance without a finding (CWOF).
© 2020 Thomson Reuters. No claim to originalAdd. 086 U.S. Government Works. 1 Massachusetts Appeals Court Case: 2020-P-0908 Filed: 10/30/2020 1:09 PM
DaSilveira v. Police Commissioner of Boston, 97 Mass.App.Ct. 1120 (2020) 145 N.E.3d 918
We note that the CWOF was not challenged at In 1992, DaSilveira was charged with carrying a firearm the Boston Municipal Court, and docket entries without a license, pursuant to G. L. c. 269, § 10 (a). He are presumptively reliable. See Commonwealth was found guilty of that charge after a bench trial. If nothing v. MacDonald, 435 Mass. 1005, 1007 (2001) else had occurred, DaSilveira would have been automatically (“Docket entries are prima facie evidence of the disqualified from obtaining a license to carry a firearm. See facts recorded therein”). See also Nichols, 94 G. L. c. 140, § 131 (d) (i) (A), (B), (D). Mass. App. Ct. at 745 (Superior Court judge erred in making factual finding where District Following his conviction, however, DaSilveira filed a motion Court already made them). Similarly, the Superior for a new trial, which was allowed. He was convicted of the Court judge's factual error referring to DaSilveira's reduced charge of illegal possession of a firearm, pursuant to amended charge as “ G. L. c. 269, § 10 (b), also G. L. c. 269, § 10 (h). 5 The conviction was revised and a felony” is immaterial to our review. revoked to a CWOF, which was dismissed in 1995. As a result *2 The commissioner denied DaSilveira's application for of the dismissal, DaSilveira was not categorically prohibited a license to carry a firearm on the ground that DaSilveira under G. L. c. 140, § 131 (d). was “unsuitable” based on a police report stating he had “obtained a firearm for revenge” and had a “lengthy criminal 5 history includ[ing] firearm charges.” DaSilveira argues this DaSilveira's conviction of illegal possession of a was arbitrary and capricious because the only firearm charge firearm under G. L. c. 269, § 10 (h), although on his record was twenty-five years old and resulted in a no longer a felony or misdemeanor that would have continuance without a finding (CWOF), which was ultimately automatically disqualified him, still would have dismissed. DaSilveira claims that the commissioner's decision been “a violation of any law regulating the use effectively imposes a lifetime bar on DaSilveira even though [or] possession ... of weapons” that categorically he is not a categorically prohibited person under the statute. prohibits an individual from obtaining a license to
“The goal of firearms control legislation in Massachusetts is carry a firearm. G. L. c. 140, § 131 (d) (i) (D). to limit access to deadly weapons by irresponsible persons.” The dismissal of the charge, however, did not prohibit Ruggiero v. Police Comm'r of Boston, 18 Mass. App. Ct. 256, McDonough from considering the underlying facts of his charge. See Holden, 470 Mass. at 856, 864; DeLuca v. 258 (1984). The licensing statute, G. L. c. 140, § 131, sets Chief of Police of Newton, 415 Mass. 155, 159-160 (1993). forth certain categories of individuals who are automatically An arrest report indicated that the charge arose from barred from obtaining a license to carry. In addition, it allows DaSilveira's desire to avenge his brother's stabbing. From this a licensing authority to deny an application “if, in a reasonable investigation, the commissioner reasonably could conclude exercise of discretion, the licensing authority determines that that allowing DaSilveira a license to carry presents a palpable the applicant or licensee is unsuitable to be issued ... a license risk to public safety. 6 See Ruggiero, 18 Mass. App. Ct. to carry.” G. L. c. 140, § 131 (d). Thus, “a person may be at 259 (“In performing its task, the licensing authority is found unsuitable for a variety of reasons, including conduct that falls outside of the enumerated disqualifiers and conduct given considerable latitude”). See, e.g., Godfrey, 35 Mass. that falls short of criminal behavior.” Firearms Records Bur. App. Ct. at 47-48 (reasonable to find unsuitability based on v. Simkin, 466 Mass. 168, 180 (2013). The statute aims to applicant's refusal to cooperate with police investigation on prevent firearms from being in the hands of those who are shots fired near school); MacNutt v. Police Comm'r of Boston, not categorically disqualified, e.g., convicted felons, but who 30 Mass. App. Ct. 632, 636 (1991) (not abuse of discretion to nevertheless pose a palpable risk to public safety. See Chief base suitability on required firing test); Moyer, 16 Mass. App. of Police of Worcester v. Holden, 470 Mass. 845, 854 (2015). Ct. at 545-546 (applicant's ultimately dismissed charge of DaSilveira bore the burden to produce substantial evidence illegal possession of marijuana could properly be considered that he was suitable to carry a firearm. See Moyer, 16 Mass. by commissioner as reasonable grounds to deny license even App. Ct. at 546. after conviction ordered sealed).
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DaSilveira v. Police Commissioner of Boston, 97 Mass.App.Ct. 1120 (2020) 145 N.E.3d 918
6 Police of Taunton v. Caras, 95 Mass. App. Ct. 182, 187 (2019) Although DaSilveira offered other licenses and (District Court judge improperly reversed chief's revocation character reference letters to show his suitability, for unsuitability even though “chief, in his discretion, could these documents were not submitted to the have taken the same view of the circumstances as the District commissioner as part of DaSilveira's application. Court judge and could have chosen not to revoke [the *3 DaSilveira did not contest the police report underlying his petitioner's] license” where record showed petitioner held charge, and argued only that the charge was twenty-five years valid license to carry for about fifty years without problems old -- a fact McDonough considered despite his conclusion and one incident could have merely been “aberration” in his that DaSilveira was unsuitable. Alone, this does not render life). the commissioner's denial arbitrary. See Nichols, 94 Mass. App. Ct. at 746 (“licensing authorities are not required to Judgment affirmed. provide denied applicants a definitive time period in which a past act will no longer render the applicant unsuitable”). Simply because the commissioner could have decided in All Citations favor of DaSilveira does not mean that the commissioner's 97 Mass.App.Ct. 1120, 145 N.E.3d 918 (Table), 2020 WL denial was not based on reasonable grounds. See Chief of 2702813
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