Chapter 13: Administrative Law

Annual Survey of Massachusetts Law Annual Survey of Massachusetts Law

Volume 1970 Article 16

1-1-1970

Chapter 13: Administrative Law Chapter 13: Administrative Law

Henry S. Healey

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Recommended Citation Recommended Citation Healey, Henry S. (1970) "Chapter 13: Administrative Law," Annual Survey of Massachusetts Law: Vol. 1970, Article 16.

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CHAPTER 13

Administrative Law HENRY S. HEALY

A. CouRT DEcisiONs

§13.1. Introduction. The 1970 SuRVEY year brought no striking new developments in the administrative law of the Commonwealth. The cases show a continuing process of clarification of the Adminis-trative Procedure Act1 and further development of principles estab-lished in earlier cases.

The Supreme Judicial Court decided cases involving, among other questions, the circumstances under which an appeal may be taken from an interlocutory order of the Superior Court remanding a pro-ceeding to an agency, and the right of an applicant for a professional license to review of a decision denying his application. Important legis-lation was enacted modifying and clarifying provisions for the publi-cation of administrative regulations.

§13.2. Adjudicatory proceedings: Judicial review of remand order. In City of Lawrence v. State Board of Education,! the Supreme Judi-cial Court stated the circumstances under which it would grant review of an interlocutory order of the Superior Court remanding a pro-ceeding to an agency. Under G.L., c. 71, §4A, municipalities are re-quired to keep their schools open for the number of days per year which is fixed by the State Board of Education. If schools are not kept open for this fixed number of days, the municipaliry loses a por-tion of its share of state school aid funds.2 The board is empowered to grant exemptions from this requirement.

During June of 1967, following a strike threat, many teachers in the public school system of the city of Lawrence failed to report for work. The school committee of the city then voted to close the schools for the remaining five days of the school year, and applied to the board for an exemption under G.L., c. 71, §4A.3 The board held a hearing

HENRY S. HEALY is associated with the firm of Bingham, Dana and Gould, Boston, and is a former Assistant Attorney General of the Commonwealth.

§13.1. 1 G.L., c. 30A.

§13.2. 11970 Mass. Adv. Sh. 443, 257 N.E.2d 461. 2 See G.L., c. 70, §§l-4. 3 General Laws, c. 71, §4A provides that: "Every town which, without having

received a specific exemption from the board of education, fails to keep open all schools required to be maintained under sections one and four or fails to provide school facilities under section six for grade nine through twelve, the number of

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Healey: Chapter 13: Administrative Law

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§13.2 ADMINISTRATIVE LAW

on the question of exemption, took the testimony of witnesses, and prepared an official transcript of testimony. It then allowed an exemp-tion for one day, but denied it for the remaining four days.4 The city filed a petition for review in the Superior Court, alleging that the ac-tion of the board was arbitrary and capricious, not based on the evi-dence, and erroneous as a matter of law.

The board did not file its transcript of the hearing with the Superior Court. The city moved that the board be ordered to file the record of its proceedings. The Superior Court denied this motion and ordered the case remanded to the board. The order of remand was based on the ground that the board hearing was not a "full and fair hearing," and did not meet the standards of an adjudicatory proceeding as set forth in G.L., c. 30A, §10. The Superior Court made this ruling with-out benefit of the record of the hearing. The city appealed.

The Supreme Judicial Court reversed the order of remand to the board, and ordered that the transcript of the board hearing be filed in the Superior Court.5

In reversing the order, the Court distinguished Marlborough Hospital v. Commissioner of Public Welfare,6 where it had ruled that a Superior Court remand of a proceeding to an agency, pursuant to G.L., c. 30A, §14(8), was not reviewable.7 The Marlborough Court first pointed out that, pursuant to G.L., c. 30A, §15, its power of review under the Administrative Procedure Act was " 'in the same manner and to the same extent as in equity suits, so far as the provisions govern-ing equity suits are applicable.' "8 It then noted that in equity "[a]p-peals from interlocutory decrees must await an appeal from the final decree.'' 9 The Court reasoned that appeals from remand orders under the Administrative Procedure Act were closely akin to appeals from interlocutory decrees in equity, and should be treated in a similar fashion. However, it is important to note that in Marlborough it ap-pears that the Superior Court was in possession of the record of the agency hearing; the Court in Lawrence relied on this distinction.10

The opinion of the Supreme Judicial Court, delivered by Justice Reardon, first pointed out that G.L., c. 30A, §14(8), requires that the Superior Court make its decision upon "'consideration of the entire

days required by said board in each school year shall have deducted from the sum of school aid payable to it under chapter seventy an amount equal to the proportion which the number of such days during which schools were not kept open bears to the total number of days required that they be kept open by said board."

4 1970 Mass. Adv. Sh. 443, 444, 257 N.E.2d 461, 462. 5 Id. at 445, 257 N.E.2d at 463. 6 346 Mass. 737, 196 N.E.2d 199 (1964). 7 General Laws, c. 30A, §14(8) states, in pertinent part, that "[t]he court may

... remand the matter for further proceedings before the agency . " 8 346 Mass. 737, 738, 196 N.E.2d 199, 200 (1964). 9 Ibid. 10 See 1970 Mass. Adv. Sh. 443, 444·445, 257 N.E.2d 461, 462.

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Annual Survey of Massachusetts Law, Vol. 1970 [1970], Art. 16


324 1970 ANNUAL SURVEY OF MASSACHUSETIS LAW §13.3 record ... .' "11 It then noted that in Marlborough the entire record was apparently on file. Finally, it stated:

... For the Superior Court to have acted properly here on the motions under G.L. c. 30A, §14(8), a record was required, and with-out one the action of that court constituted a failure to comply with the statute. To hold otherwise in these circumsta][}ces would be to set the stage for a game tending to denigrate both the State Administrative Procedure Act and proper judicial review of ac-tions taken under its provisions.12

Lawrence represents a significant and necessary departure from the rigid rule of nonreviewability set forth in Marlborough. In Lawrence the board failed to comply with G.L., c. 30A, §14(4), which requires that within 40 days after the filing of a petition for review the agency file in court "the original or a certified copy of the record of the pro-ceedings under review.'' In the absence of agreement to the contrary, this record must consist of "the entire proceedings.''13 The Superior Court's action in ruling, despite the board's failure to comply with the statute, was itself a violation of the statute (G.L., c. 30A, §14(8)). The court's noncompliance thus justified interlocutory review of its order.

However, Lawrence does not open interlocutory review of remand orders in all cases decided under the Administrative Procedure Act. In cases such as Marlborough, where remand is ordered. on the basis of a review of the "entire record," interlocutory review should continue to be foreclosed.

§13.3. Adjudicatory proceedings: Judicial review of license ex-amination results. In Marmer v. Board of Registration of Chiropractors/ the Supreme Judicial Court considered the degree to which the results of professional license examinations are subject to judicial review. There the plaintiff applied for registration as a chiropractor. He passed the written examination, but failed the "practical tech-nique" portion. He was not given notice of any right to a hearing be-fore the Board of Registration of Chiropractors on any objections he might have to the decision of the board. He sought judicial review, asserting that the "practical" examination was administered to him in an unfair and discriminatory manner, and that there was a con-certed attempt by certain members of the board and certain members of the Massachusetts Chiropractic Association to prevent his registra-tion.2

11 ld. at 444, 257 N.E.2d at 462, 12 Id. at 445, 257 N.E.2d at 462. 13 G.L., c. 30A, §14(4).

§13.3. 11970 Mass. Adv. Sh. 1lll, 260 N.E.2d 672. For a student comment on state licensing procedure, see §13.5 infra.

2 Id. at ll11-l112, 260 N.E.2d at 674.

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§13.3 ADMINISTRATIVE LAW 325 The plaintiff sought review by a suit in equity. The Supreme Judi-

cial Court affirmed a decree of the Superior Court sustaining the board's demurrer, on the ground that a petition for review under G.L., c. 30A, §14- and not a suit in equity- was the proper method of judicial review. However, the Supreme Judicial Court, viewing the case as one of public importance, expressed its views on the reviewa-bility of the plaintiff's contentions. It is this aspect of the opinion which is of present interest.a

The Court first reviewed the Massachusetts and federal cases which have established that "[a] State cannot exclude a person from the practice of an occupation in a manner or for reasons that contra-vene the due process or equal protection clause of the Fourteenth Amendment."4 It then stated that, while G.L., c. 112, §§89-97 (which establish procedures for the registration of chiropractors) do not pro-vide procedures for review of examination results,

... [w]e are of the belief ... that an opportunity for an agency hearing relative to those results should be afforded where there is a question of arbitrary and capricious conduct in grading examina-tions on the part of the board as alleged by the plaintiff. In our view the plaintiff is entitled to such a hearing which is "required by constitutional right" within the meaning of c. 30A, §1(1).5

The Court concluded that the plaintiff

... was entitled to notice under G.L., c. 30A not only of the fact that he had been successful or failed in the examination which was

3 The Court stated that: "In the suit before us the plaintiff has chosen to pro-ceed in equity. He had, however, another avenue for remedy of his grievance [by way of a petition for review under G.L., c. 30A, §14], as we have indicated. It was thus not error to sustain the demurrer. ... " 1970 Mass; Adv. Sh. II II, II 15, 260 N.E.2d 672, 676. The Court nevertheless stated its views on the reviewability of plaintiff's contentions under G.L., c. 30A, on the basis of Hs practice set forth in detail in Wellesley College v. Attorney General, 313 Mass. 722, 731, 49 N.E.2d 220, 226-227 (1943). There the Court stated that it would express its views on the substantive questions raised in cases not properly before the Court, in situations where the public interest is involved and where· uncertainty and confusion exist among a significant number of persons in the same position as the parties to the case under consideration.

4 1970 Mass. Adv. Sh. 1111, 1114, 260 N.E.2d 672, 675. See Milligan v. Board of Registration in Pharmacy, 348 Mass. 491, 499, 204 N.E.2d 504, 511 (1965);, Schware v. Board of Bar Examiners, 353 U.S. 232 (1957); Willner v. Committee· on Charac-ter, 373 U.S. 96, 102-103 (1963), also holding that procedural due process requires notice of the opportunity for hearing.

5 1970 Mass. Adv. Sh. 1111, 1113, 260 · N.E.2d 672, 675. With certain exceptions not pertinent here, G.L., c. 30A, §1(1) defines an adjudicatory proceeding as "a proceeding before an agency in which the legal rights, duties or privileges of specifically named persons are required by constitutional right or by any provision of the General Laws to be determined after opportunity for· an agency hearing."

See York v. State, 152 Fla. 285, 10 So. 2d 813 (1943), where the court affirmed an' order registering as a dentist an unsuccessful applicant who contenC!ed' that his' examination had been conducted in an unfair- and discriminator.y manner.

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326 1970 ANNUAL SURVEY OF MASSACHUSETTS LAW §13.4

given to him but, in the event of his failure, of his right to a hear-ing. Since he has not received such a notice from the hoard, it is our view that he is entitled to a hearing provided that he makes a proper and reasonable request to the board therefor .... 6

This case is important because it establishes guidelines for the review of agency decisions on applications for occupational licenses. As the Court pointed out in Milligan v. Board of Registration zn Pharmacy,7 cited in Marmer, an increasingly large number of occupations is now subject to administrative regulation, and there is a growing awareness that decisions on applications for occupational licenses must "be made objectively, under reasonable procedures, and with appropriate op-portunity for judicial review."8 The Marmer decision clarifies the content of these "reasonable procedures."

Marmer must not, however, be construed as recognizing "a right to a hearing arising merely from the failure of an examination."9 The re-quest for a hearing after failure to pass an examination must state specific facts sufficient to support a contention that the action of the agency in grading the examination was arbitrary and capricious. It is only when adequate factual reasons are stated that a hearing need be granted.1o

B. LEGISLATION

§13.4. Publication of administrative regulations. During the 1969 SURVEY year, the General Court enacted far-reaching legislation in-tended to end the chaotic situation then prevalent in the publication of Massachusetts administrative regulations,! This legislation pro-

61970 Mass. Adv. Sh. 1111, 1115, 260 N.E.2d 672, 676. General Laws, c. 30A, §10, applicable to adjudicatory proceedings, states that "[u]nless otherwise provided by any law, agencies may (1) place on any party the responsibility of requesting a hearing if the agency notifies him in writing of his right to a hearing and of his responsibility to request the hearing .... "

7 348 Mass. 491, 204 N.E.2d 504 (1965). 8 Id. at 495, 204 N.E.2d at 508. See Monaghan, The Constitution and Occupa-

tional Licensing in Massachusetts, 41 B.U.L. Rev. 157 (1961); Davis, Administra· tive Law §§7.01-7.20 (1959).

91970 Mass. Adv. Sh. 1111, 1114, 260 N.E.2d 672, 676. 10 Id. at 1115, 260 N.E.2d at 676. The Court outlined the proper procedure as

follows: "The applicant for an occupational license must first have failed the qualifying examination given under the supervision of an agency. Notice of that failure shall include also notice of his right to a hearing if p1roperly requested. See G.L. c. 30A, §10. Such right is to be exercised by a request in writing from the applicant for a hearing, stating sufficient specific and factual reasons for request· ing it, as distinct from simple allegations amounting only to c:onclusions. If he states adequate factual reasons, he should be granted a hearing with the right of judicial review. If he does not state adequate factual reasons, the hearing should be denied. Whether the reasons he states are adequate may present a judicial ques-tion should the board deny the hearing." Id. at 1114-1115, 260 N.E.2d at 676.

§13.4. 1 Acts of 1969, c. 808, amending G.L., c. 30A, §§1·3, 5 and 6, and adding

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§13.5 ADMINISTRATIVE LAW 327 vided that future administrative regulation would become effective only upon publication, and required the secretary of state to publish all existing administrative regulations by a date six months after Janu-ary 1, 1970, the effective date of the act.2 Regulations which were un-published by July 1, 1970, would become null and void.a

During the 1970 SURVEY year, the date by which existing administra-tive regulations must be published was extended to July 1, 1971.4 Be-fore this extension was granted, existing regulations had become void due to an oversight in failing to publish them by July 1, 1970. There-fore, remedial legislation was passed to validate any regulations that had not been published by that date.5

C. STUDENT CoMMENT

§13.5. Regulation of physicians: Licensing provision: Fogland v. Board of Registration in Medicine.1 The petitioner appealed from a final decree of the Superior Court which affirmed a decision of the Board of Registration in Medicine, denying the petitioner's applica-tion for reciprocal licensure as a qualified physician in this Common-wealth. This application was made pursuant to G.L., c. I 12, §2, which provides for the examination and registration of physicians in Mas-sachusetts.2 This regulation requires any applicant who has graduated from a foreign medical school to furnish to the board documentary evidence that his education was substantially equivalent to that of graduates of American medical schools. Petitioner had been awarded the degrees of Bachelor of Medicine and Bachelor of Surgery from the University of Sydney in Australia and had been licensed to prac-tice in that country since 1956 and in the United Kingdom since 1957. He had first applied for registration as a physician in Massachu-setts in 1964. Prior to 1966, the statute had also required that appli-cants educated at foreign medical schools pass a "screening exam" be-fore being admitted to the regular Massachusetts examination.3 The G.L., c. 30A, §§6A, 6B and 7A. The reasons for the passage of this legislation are stated in detail in O'Leary, The Right to be Informed-A Plea for Greater Access to Massachusetts Administrative Rules and Regulations, 54 Mass. L.Q. 63 (1969).

2 Acts of 1969, c. 808, §12. 3 Id. §§9-10, amending G.L., c. 30A, §6. 4 Acts of 1970, c. 712, §§8·9, amending G.L., c. 30A, §6. 5 Id. c. 168, amending G.L., c. 30A.

§13.5. 11970 Mass. Adv. Sh. 937, 259 N.E.2d 780. 2 In relevant extract, G.L., c. 112, §2, reads: "The board may, without examina-

tion, grant certificates of registration as qualified physicians to such persons as shall furnish with their applications satisfactory proof that they have the qualifications required in the commonwealth to entitle them to be examined and have been licensed or registered upon a written examination in another state whose standards, in the opinion of the board, are equivalent to those in the commonwealth. . . .'~

3.ln 1964 .• the relevant part of G.L., c. 112, §2, read: "An applicant who has re·

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328 1970 ANNUAL SURVEY OF MASSACHUSETTS LAW §13.5

''screening exam" was not administered by the Commonwealth but was given periodically by the National Board of Medical Examiners of the United States. The results were used by Massachusetts to deter-mine whether the applicant met the basic requirements for being admitted to examination in the Commonwealth. The Massachusetts examination is exhaustive, covering several fields of medicine in detail. The petitioner had twice failed the "screening exam," once in 1964 and again in 1965. He has never taken the Massachusetts examination. In 1965 the petitioner received the "Standard Certificate," indicating that he had passed an examination given by the Educational Council for Foreign Medical Graduates. In 1966 he was licensed to practice in New York, and in 1968 in New Hampshire. General Laws, c. 112, §2 was amended, in part, in 1966. The amendment abolished the require-ment that applicants educated at foreign medical schools take the "screening exam," and substituted in its place their presentation of the "Standard Certificate."4 The legislature apparently felt that fulfillment of this new requirement was sufficient indication of the applicant's qualification to take the Massachusetts examination. In 1968, the petitioner applied for reciprocal licensure in the Commonwealth on the basis of his New York license. At a hearing before the board, it was stipulated that New York licensing standards are equivalent to those of Massachusetts and that petitioner had met all other require-ments for licensure of this kind. Nevertheless, he was denied certifica-tion on the basis of the "prior failure" proviso contained in the last paragraph of Chapter 112, Section 2. The proviso, whiich denies the privi.ege of reciprocal licensure to anyone who has unsuccessfully attempted to register in the Commonwealth, has always been a part of the reciprocal licensing provision in Massachusetts.~>

ceived from a medical school legally chartered in a sovereign state other than the United States or Canada a degree of doctor of medicine or bachelor of medicine or its equivalent, shall be required to furnish to the board such documentary evi-dence as the board may require that his education is substantially the equivalent of that of graduates of medical schools in the United States and such other evi-dence as the board may require as to his qualifications to practice medicine, and shall, except as hereinafter provided, be required to take a screening examination conducted periodically for such applicants by the National Board of Medical Examiners of the United States at the request of the board ..... "

4 Acts of 1966, c. 299, abolished the screening exam requiremellit by substituting the following provision: "An applicant who has received from a medical school, legally chartered in a sovereign state other than the United States or Canada, a degree of doctor of medicine or its equivalent shall be required to furnish to the board such documentary evidence as the board· may require that his education is substantially the equivalent of that of graduates of medical schools in the United States and such other evidence as the board may require as to hb qualifications to practice medicine, and shall, except as hereinafter provided, be required to pr:esent a Standard Certificate granted after examination by the Educational Council for Foreign Medical Graduates . ... " (Emphasis added.)

5 That pr-Gvision of G.L., c. ll2, §2, reads:· "provided, that no person shall be so registered: Without art examination if he h~S· a-ttempted llfiSUCCessfhlly t<J ~CUre

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§13.5 ADMINISTRATIVE LAW 329 The petitioner asserted that the "prior failure" proviso is unconsti-

tutional on its face and as it was applied to him. He argued that the proviso unjustifiably penalized him by requiring him to take the examination, and denied him equal protection of the law and due process. He also claimed that the original "screening exam" require-ment was unconstitutional because it was discriminatory and that he could not, therefore, be penalized for having failed to meet the re-quirement of an unconstitutional statutory provision. HELD: that each of the statutory provisions challenged is constitutional, and that the decree of the lower court, upholding the decision of the board, should be affirmed.

The Court stated that the duty of Massachusetts to protect the health and welfare of the public is paramount to the individual's right to freely practice his chosen occupation.6 In holding both the "prior failure" proviso and the original "screening exam" valid exer-cises of that power, the Court adopted the reasoning of Sheedy v. Department of Registration & Education, which upheld the constitu-tionality of an Illinois provision similar to the "prior failure" proviso of Chapter 112.7 The Supreme Court of Illinois stated that the "prior failure" proviso under review in that case safeguarded the public health by preventing those who had previously failed to obtain certi-fication in Illinois from "shopping" for certification in another state, and then seeking endorsement of that license in Illinois. The Sheedy court felt that the assurance of competency usually afforded by the foreign license is nullified by an applicant's prior failure in Illinois.s The Supreme Judicial Court accepted this reasoning and further con-cluded that the "objective" of the Massachusetts proviso is to regulate the admission of physicians who have failed to meet the standards of Massachusetts as determined in written examinations.ll The authority upon which the Court relied is abundant. Licensing provisions similar to G.L., c. 112, §2, have consistently been upheld as valid exercises of a state's power to protect the public health, welfare and morals.to

registration in the commonwealth or if he is a graduate of a medical school not approved by the approving authority."

6 Fogland v. Board of Registration in Medicine, 1970 Mass. Adv. Sh. 937, 941, 259 N.E.2d 780, 783.

7 Sheedy v. Department of Registration & Educ., 33 Ill. 2d 573, 575, 213 N.E.2d 281, 283 (1965).

8 Id. at 574-575, 213 N.E.2d at 283. 9 Fogland v. Board of Registration in Medicine, 1970 Mass. Adv. Sh. 937, 941-942,

259 N.E.2d 780, 783. 10 Collins v. Texas, 223 U.S. 288 (1912); Dent v. West Virginia, 129 U.S. 114 (1889);

Lucas v. State ex rei. Bd. of Medical Registration & Examinations, 229 Ind. 633, 99 N.E.2d 419 (1951); Commonwealth v. Finnigan, 326 Mass. 378, 96 N.E.2d 715 (1950); McMurdo v. Getter, 298 Mass. 363, 10 N.E.2d 139 (1937); People v. Walder, 317 Ill. 524, 148 N.E. 287 (1925); Commonwealth v. Jewelle, 199 Mass. 558, 85 N.E. 858 (1908); Commonwealth v .. Porn, 196. Mass .. 326, 82 N.E. 31 (1907); Meffert v. State Bd. of Medical Registration & Examination, 66 Kan. 710, 72 P. 247 (1903).

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330 1970 ANNUAL SURVEY OF MASSACHUSETTS LAW §13.5 However, Fogland presents an unusual set of facts, and it appears that the Court, by refusing to grant the petitioner relief, has further ex-tended its practice of refusing to overrule legislative enactments regulating the professions and other occupations. This comment will examine that practice with regard to standards of due process and equal protection and will question the validity of its observance in Fogland.

Most often, licensing provisions are attacked as being violative of the due process or equal protection guarantees of the Fourte,enth Amend-ment,11 as well as violative of the relevant provisions of the particular state constitution. In Massachusetts, those provisions are Articles I and X of the Declaration of Rights. 12 A medical licensing statute was challenged on these grounds in Massachusetts as early as 1835.13 That case held valid a statute which denied to an unlicensed physician the benefit of law for the recovery of any debt or fee arising from his practice, recognizing that the legislative intent emanated "from a due regard probably to the importance of the lives and health of the citizens, and the deep interest which they have in this profession ..•• "14 A more recent Massachusetts statute15 regulating the practice of medicine gave a board the power to suspend, revoke or cancel any license or registration issued by the board. This statute was before the Court in the leading case of Lawrence v. Board of Registration in Medicine.16 The board summoned the plaintiff to a hearing, alleging that his registration should be revoked for his gross misconduct in agreeing to perform an abortion. The plaintiff claimed that the board was without authority to revoke his license because the statute in question providing for such revocation was unconstitutional. The Court reasoned that the right to toil in one's chosen profession is not abso-lute and must yield to the paramount right of the state to protect the public health and welfareP In 1925 the Supreme Judicial Court, with little discussion, held constitutional the revocation provision of G.L., c. 112, §61. The Court, referring to the already abundant sup-portive case law, stated that "it would be vain repetition to go over that ground again."18 Silverman v. Board of Registration in Optome-

n U.S. Canst. amend. XIV, §1, reads: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal pro-tection of the laws."

12 Mass. Canst. pt. 1, arts. I, X. 13 Hewitt v. Charier, 33 Mass. 353 (1835). 14 Id. at 354. 15 St. 1918, c. 257, §296, amending G.L., c. 112, §61. 16 239 Mass. 424, 132 N.E. 174 (1921). 17 Id. at 428, 132 N.E. at 176. 18 Davis v. Board of Registration in Medicine, 251 Mass. 283, 285, 146 N.E. 708

(1925).

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§13.5 ADMINISTRATIVE LAW 331

try19 upheld as constitutional an administrative regulation forbidding optometrists to practice on premises where the primary business con-ducted is commercial in nature. There the Court stated that the Commonwealth had an interest in preventing the demoralization of the profession.20 It also concluded that it was not within its province to pass upon the wisdom of this regulation, since it was a valid exer-cise of the Commonwealth's police power.21 The Supreme Judicial Court declared the law on regulatory provisions most explicitly in Sperry & Hutchinson Co. v. Director of Division of Necessaries of Life of the Commonwealth.22 The Court there enunciated the principle that it will not inquire into the expediency or wisdom of legis-lative judgment, and "[u]nless the act of the Legislature cannot be supported upon any rational basis of fact that reasonably can be con-ceived to sustain it, the court has no power to strike the act down as violative of the Constitution."23 (Emphasis added.) It would appear that the Court has followed this reasoning in Fogland, since that deci-sion attempts to explain the rationale of the "prior failure" proviso and concludes that it was formulated on the basis of reasonable con-cern for the public health.

The federal courts are also reluctant to question a state legislative enactment and will not usually do so unless there is a violation of specific constitutional prohibitions or a conflict with a valid and con-trolling federal law.24 In 1889, the United States Supreme Court upheld a West Virginia statute requiring the licensing of physicians in that state.21i The plaintiff had been indicted for practicing without a license. He argued that the statute was unconstitutional because it denied him the right to practice his chosen profession in contraven-tion of the guarantees of the Fourteenth Amendment. The Court held that the state had the power to protect the health and welfare of the community, and held this statute to be a valid exercise of that power.26 Similarly, in Watson v. Maryland,21 the United States Su-preme Court upheld a Maryland statute which provided for the licensing of physicians. The statute excepted from the licensing re-quirements those who had already been practicing in Maryland for at least one year prior to January 1, 1898. The plaintiff had been convicted of practicing without a license and appealed on the ground that the statutory exception deprived him of equal protection of the law because it exempted certain classes of physicians from complying

19 344 Mass. 129, 181 N.E.2d 540 (1962). 20 Id. at 133, 181 N.E.2d at 542. 21 Id. at 135, 181 N.E.2d at 542. 22 307 Mass. 408, 30 N.E.2d 269 (1940). 23 Id. at 418, 30 N.E.2d at 274. 24 Day-Brite Lighting Co. v. Missouri, 342 U.S. 421 (1952). 25Dent v. West Virginia, 129 U.S. 114.(1889). 26 Id. at 122. 27218 u.s. 17!1 (1910).

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332 1970 ANNUAL SURVEY OF MASSACHUSETI'S LAW §13.5

with the licensing requirements. The Court held that there was a reasonable basis for the classification and further stated that excep-tions of specified classes would not render a law unconstitutional unless there was no fair reason for such exemption.2s The Supreme Court has also found constitutional a Texas statute that established a board of medical examiners, holding that the state may use its police power to insure the public of the competence of those who practice medicine. 29

These few leading Massachusetts and federal decisions are indica-tive of the majority view expounded in Fogland. The soundness of this precedent is hardly debatable when applied to most cases challeng-ing a state regulatory statute. However, the facts in Fogland are not typical, and when closely examined may lead to the conclusion that if the Supreme Judicial Court had been so disposed, it might have in-deed found that there was an unconstitutional application of the "prior failure" proviso in this instance.

It appears that the Supreme Judicial Court had not previously considered the reciprocal licensing provision. Most :Massachusetts cases challenging various provisions in Chapter 112 of the General Laws (or earlier licensing statutes) have been concerned with individu-als who have either been indicted for practicing without a license,30 or have had their licenses revoked for failing to comply with a particular regulation31 or for conducting themselves in a questionable or unprofessional manner.32 For this reason, the Fogland court relied largely on the Sheedy decision,33 which upheld the "prior failure" proviso of the Illinois reciprocal licensing statute denying reciprocal licensure to anyone who had ever failed that state's medical examina-tion. The Massachusetts proviso is distinguishable, however, because its prohibitive effect is not limited to those who have failed the Massa-chusetts examination, but applies to those who have for any reason been previously denied registration as a physician in the Common-wealth. It is submitted that a provision with such a broad sweep may lead to arbitrary and capricious denial of the reciprocal licensing privilege.

Those comparatively few decisions which have held legislative regu-latory enactments arbitrary and thus unconstitutional seem to deal almost exclusively with fields other than medicine and the other professions.34 This is probably indicative of a widely held conviction

28 Id. at 178-180. 29 Collins v. Texas, 223 U.S. 288 (1912). 30 Commonwealth v. Finnigan, 326 Mass. 378, 96 N.E.2d 715 (1950). 31 Silverman v. Board of Registration in Optometry, 344 Mass. 129, 181 N.E.2d

540 (1962). 32 Lawrence v. Board of Registration in Medicine, 239 Mass. 424, 132 N.E. 174

(1921). 33 Fogland v. Board of Registration in Medicine, 1970 Mass. Adv. Sh. 937, 941-942,

259 N.E.2d 780, 784-785. 34 For a detailed examination of the field of occupational licensing in Massa-

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that the professions merit particularly close regulation. Keeping this in mind, one may, nevertheless, adopt the reasoning of these cases in determining the constitutionality of applying the "prior failure" pro-viso to the facts in Fogland. The tests used by both state and federal courts in determining the constitutionality of a particular regulatory statute are fairly standard. In a ruling that the "exception" proviso of a currency exchange act violated the equal protection clause, the United States Supreme Court stated that a statutory discrimination must be based on differences that are reasonably related to the pur-pose of the act in which it is found.35 Similarly, in a case challenging the constitutionality of a statute prohibiting the imitation of certain foods, the Supreme Judicial Court has held that legislative regulations must be reasonably adopted to accomplish the intended purpose of the legislation. It emphasized that such regulations could not make arbitrary distinctions.36 In applying these tests to Fogland, it is neces-sary to determine whether application of the proviso is reasonably re-lated to its "intended purpose," and whether such application results in an arbitrary distinction.

The Supreme Judicial Court has limited the "purposes" which it will consider valid to those statutes which have a substantial relation-ship to the public health, safety, morals or general welfare.37 It may be assumed that by enacting the "prior failure" proviso, the legisla-ture intended to enact a provision which would have as its purpose the protection of the public health. The question now becomes whether application of the proviso in all cases "reasonably relates" to that purpose, or whether its application in cases such as Fogland may be totally unrelated to that purpose. Certainly, in the case of an individual who has previously failed the actual licensing exam, application of the proviso is reasonably related to the legislative intent, as was pointed out in Sheedy.3s In Fogland, however, the petitioner had been recognized as a fully qualified physician by an-other state and had met ali the necessary requirements to be registered as such in Massachusetts according to the reciprocal licensing pro-vision. He had passed a licensing examination in New York, a state whose standards are admittedly equivalent to those of Massachusetts. It would appear that by passing this examination, he compensated for any deficiency exhibited by his failure of the no longer required "screening exam." There appears to be no rational purpose served by discriminating against the petitioner and requiring him to take the

chusetts, see Monaghan, The Constitution and Occupational Licensing in Massa-chusetts, 41 B.U.L. Rev. 157 (1961).

35 Morey v. Doud, 354 U.S. 457, 465 (1957). 36 Coffee-Rich, Inc. v. Commissioner of Public Health, 348 Mass. 414, 204 N.E.2d

281 (1965). 37 Sperry & Hutchinson Co. v. Director of Div. of Necessaries of Life of the

Commonwealth, 307 Mass. 408, 418, 30 N.E.2d 269, 274-275 (1940). 38 33 Ill. 2d 573, 575, 281 N.E.2d 281, 283 (1965).

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334 1970 ANNUAL StJR.V:tY O:li' MAssACHtJSETIS LAW §13.5 Massachusetts examination simply because broad application of this proviso brings him within its prohibition.

One can envision other cases where blanket application of the proviso would serve no rational purpose. For example, an individual may have been licensed in a state whose standards are not equivalent to those of Massachusetts and been denied reciprocal licensing in the Commonwealth on that ground. Some time later, he may have been duly licensed, after examination, in a state whose standards are equivalent to those of Massachusetts and subsequently reapplied for reciprocal licensing in the Commonwealth, on the basis •of his outside license. According to a strict application of the proviso, which the Fogland decision requires,39 the applicant would be denied licensure unless he took the Massachusetts examination. There is no reasonable relationship between the protection of the public health and the re-quirement that this applicant take the Massachusetts examination, because he has never displayed any deficiency for which his passing of another examination would compensate. The irrationality of apply-ing the "prior failure" proviso to this hypothetical situation is per-haps more pronounced than was its application in Fogland. However, it does serve to emphasize that there are situations in which appli-cation of the proviso does not relate to the legislative purpose that it was designed to serve.

It is arguable, then, that the proviso arbitrarily discriminated against the petitioner in Fogland. It has been noted that the petitioner had met all present requirements which students educated outside the United States must meet for admittance to the Massachusetts examina-tion, and that he also had met all requirements for taking: advantage of the reciprocal licensing provision. The proviso, however, requires that he be examined. The licensing provision gives the board the dis-cretion to register anyone who fulfills the appropriate requirements. This provision does not discriminate against those who have per-formed poorly on another state's exam or against those who may have even failed other state exams before being licensed. Yet the Court has held, in effect, that the legislature saw fit to discriminate against the petitioner because he failed to pass an examination no longer deemed necessary. Since the legislature has changed the standard with regard to the "screening exam," it is submitted that the petitioner should no longer be judged according to that standard. The only inquiry that need be made is whether or not he is qualified under present standards. To do otherwise is to discriminate against the petitioner and to deny him equal protection of the law.

There is no indication that the "screening exam" had been given exclusively to applicants for Massachusetts licensure. As was men-tioned previously, the examination was given by the National Board

39 1970 Mass. Adv. Sh. 937, 942, 259 N.E.2d 780, 784: "We read the proviso, which is clear, as allowing no exceptions."

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of Medical Examiners of the United States. An applicant might have taken this examination and failed it without ever having applied for licensure in Massachusetts. If such an applicant was, nevertheless, licensed in a state with standards equivalent to those of Massachusetts, he would be eligible for reciprocal licensure under the statute, and the "prior failure" proviso would not apply to him. These circum-stances are similar to those in Fogland, with the exception that Fog-land had applied in Massachusetts prior to taking the "screening exam." It is submitted that the Court's application of the "prior failure" proviso has arbitrarily discriminated against the petitioner. By operation of the proviso, he has been denied the privilege of reciprocal licensure. Yet there is no such denial to other classes of applicants whose qualifications may be the same as or even less im-pressive than those of the petitioner. He is now forced to undertake the lengthy and difficult task of preparing for the Massachusetts ex-amination. This requirement will also impose a substantial financial burden on the petitioner, since he will be forced to sacrifice much time from his New York practice in order to prepare for the examina-tion.

It is indeed incumbent upon the legislature to enact statutes which, when applied, are reasonably related to the purpose of their enact-ment and which are not arbitrary or discriminatory in nature. When the legislature fails in this duty, it is incumbent upon the courts to refuse to enforce such legislation. As evidenced most recently by Fogland, however, courts have been extremely reluctant to interfere with legislative provisions regulating the licensing and practice of profes-sionals. On those occasions when the courts do find a particular regulation unconstitutional, it is usually related to other occupational and business fields such as pharmacy,40 oil,41 peddling,42 money-ex-changing,4B or the sale of a product.44 As previously noted, the courts apparently feel that the professions deserve particularly close regu-lation. However justifiable this inclination may be, the courts should not neglect an individual's right to practice his chosen profession when that right is delimited by a vague or overbroad regulation. The Fogland Court had sufficient grounds to find the "prior failure" pro-viso unconstitutional on its face, or at least as applied in that case. Such a finding would have forced the legislature either to drop the reciprocal licensing privilege and require all applicants to take the examination, or to narrow the "prior failure" proviso to make it less

40 Milligan v. Board of Registration in Pharmacy, 348 Mass. 491, 204 N.E.2d 504 (1965).

41 Sperry&: Hutchinson Co. v. Director of Div. of Necessaries of Life of the Com-monwealth, 307 Mass. 408, 30 N.E.2d 269 (1940).

42 Commonwealth v. Hana, 195 Mass. 262, 81 N.E. 149 (1907). 48 Morey v. Dowd, 354 U.S. 457 (1957). 44 Coffee-Rich, Inc. v. Commissioner of Public Health, 348 Mass. 414, 204 N.E.2d

281 (1965).

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336 1970 ANNUAL SURVEY OF MASSACHUSETTS LAW §13.5 arbitrary. (The Illinois "prior failure" proviso, for instance, excludes only those who have failed the state examination.) The Court chose, however, to uphold the proviso and to continue its custom of granting the legislature the broadest possible power in administrative areas.

It is interesting to note that just two weeks after the Fogland de-cision, the Court dealt with another alleged unfair licensing provision in Marmer v. Board of Registration of Chiropractors.45 The plaintiff in this case was an unsuccessful applicant for registration to practice chiropractic in Massachusetts. He had failed the practical skills por-tion of a three-part examination. The plaintiff claimed that he had been unfairly discriminated against and that there was a concerted effort on the part of certain board members to prevent his registra-tion. The case was decided on a procedural issue, and the Court re-manded to the board ordering that the plaintiff be afforded his statutory right to a hearing.46 Besides stressing the individual's right to procedural due process, the Court in Marmer also concerned it-self with the individual's right to practice his chosen profession. In the course of the Marmer opinion, the Court noted that a state cannot exc~ude a person from the practice of an occupation "in a manner or for reasons that contravene the due process or equal protection clause of the Fourteenth Amendment."47 This emphasis, notably lacking in Fogland, is most likely due to the fact that the Marmer Court was not directly confronted with a legislative enactment but was more closely concerned with a procedural issue and an alleged abuse of discretion by the board. A careful look at the case law will indicate that the Court is not so reluctant to question alleged discretionary abuse by a board as it is to question alleged legislative abuse.4S The plaintiff asserted in Marmer, however, that the discretionary abuse of the board was a direct result of the inherently vague and standardless administrative regulations in this field. The Court did not pass on this contention, and it would be difficult to speculate on the Court's disposition were this issue raised again on appeal from the hearing. It is possible that the Court might require the board to adopt pro-cedures which would insure less chance of arbitrary treatment. How-ever, in light of Fogland, it is highly unlikely that the Court would declare the statute which created the board unconstitutional, thereby compelling the legislature to refine the statute and incorporate more definite standards within it.

MICHAEL 0. JENNINGS

4111970 Mass. Adv. Sh. 1111, 260 N.E.2d 672. 46 G.L., c. !lOA, §1(1), provides for the right to a hearing before the board in

an adjudicatory proceeding. 47 1970 Mass. Adv. Sh. 1111, 1114, 260 N.E.2d 672, 675. 48 E.g., compare Milligan v. Board of Registration in Pharmacy,. !148 Mass. 491,

499-502, 204 N.E.2d 504, 5II-513 (1965), with Silverman v. Board of Registration in Optometry, 344 Mass. 129, 135, 181 N.E.2d 540, 542 (1962).

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Documents

Chapter 13: Administrative Law