15 Mass. App. Ct. 325 | Mass. App. Ct. | 1983
Following the decision in J. & J. Enterprises, Inc. v. Martignetti, 369 Mass. 535 (1976), certain of the plaintiffs in that case filed a complaint in the Alcoholic Beverages Control Commission (commission) in which they charged the plaintiffs herein (plaintiffs) and others with a variety of monopolistic practices and by which they sought (among other relief) revocation of the licenses to operate re
A judge of that court, acting on the basis of evidence that was put before him by agreement of the parties, found that there had been unauthorized ex parte communications between Farnsworth and special counsel to the commission (Mr. Harold Kowal) on the one hand and counsel for the complainants (Mr. Harold Hestnes) on the other in the course of which “Farnsworth and Kowal provided Hestnes with [a] file [of documents which Farnsworth had obtained from a private source] knowing that it contained information which the complainants did not possess and knowing that the information would help them substantiate their allegations .... Neither Farnsworth nor Kowal ever notified [the plaintiffs] of their ex parte contact with Hestnes, nor did they give notice that Farnsworth had obtained the file . . . and turned it over to the complainants . . . .” “[T]he plaintiffs learned about Farnsworth’s ex parte contact with Hestnes and his provision of the documents to the complainants” “[t]wo days before the scheduled . . . adjudicatory hearing date.”
The judge struck the commission’s findings, rulings and order, and remanded the case to the commission (the membership of which had completely changed) for the formulation of entirely new findings and rulings. The order of remand provided that the commission could render its new decision on the basis of the evidence that had already been introduced at the public hearing, together with such new
The order of remand is purely interlocutory so far as the plaintiffs are concerned. Compare Pollack v. Kelly, 372 Mass. 469, 475-476 (1977); Brooksbank v. Epstein, 5 Mass. App. Ct. 377, 378 (1977). The commission points to instances in which we have responded to the traditional abhorrence of piecemeal appellate review (see Pollack, at 470-472 by dismissing appeals from interlocutory orders of remand (see, e.g., Roberts-Haverhill Associates v. City Council of Haverhill, 2 Mass. App. Ct. 715, 719-720 [1974]; Politano v. Selectmen of Nahant, 12 Mass. App. Ct. 738, 739-740, 746 [1981]) and tempts us to follow that course here. The plaintiffs point to the provisions of G. L. c. 30A, § 15, as appearing in St. 1973, c. 1114, § 3,
The plaintiffs point to the fact that G. L. c. 30A, § 15, in its present form (n.6 hereof) no longer contains any language comparable to that which has been italicized in n.7 and would have us wish the Marlborough Hosp. case away as some sort of sport in the old equity practice. The difficulty with such wishful thinking is its failure to recognize the fact that the “finality” concept of the old G. L. c. 214, § 19, which was repealed by St. 1973, c. 1114 (“An Act improv
We see nothing more to the 1973 amendment of § 15 than another instance of the many changes in the General Laws which were designed to accommodate the abolition of the procedural distinctions between actions at law and suits in equity which was effectuated by Mass.R.Civ.P. 2, 365 Mass. 733 (1974). See, e.g., Del Duca v. Town Admr. of Methuen, 368 Mass. 1, 2 n.3 (1975); Boston Edison Co. v. Boston Redevelopment Authy., 374 Mass. 37, 46-49 (1977); Walker v. Board of Appeals of Harwich, 388 Mass. 42, 46 n.5, 48, 49 & n.6 (1983). Compare Boston Seaman's Friend Soc. v. Attorney Gen., 379 Mass. 414, 415-417 (1980). Indeed, a survey of the cases decided under the present § 15 discloses that the only instances in which either of our appellate courts has entertained an appeal from an order of remand to an administrative agency have been ones in which the order has included a final determination of the rights of an appellant. See Cliff House Nursing Home, Inc. v. Rate Setting Commn., 378 Mass. 189, 190-191 (1979); Massachusetts State Pharmaceutical Assn. v. Rate Setting Commn., 387 Mass. 122, 137-138 (1982); Blue Moon Saloon, Inc. v. Alcoholic Beverages Control Commn., 11 Mass. App. Ct. 890, 890-891 (1980).
Appeal dismissed.
The third member had disqualified himself.
No question has been raised as to the accuracy of any of the quoted findings.
Although it is not entirely clear, the judge appears to have contemplated that the commission would follow the procedure authorized by G. L. c. 30A, § 11 (7), inserted by St. 1954, c. 681, § 1, for use in cases in which a majority of those who must participate in an official decision have neither heard nor read the evidence. See Board of Appeals of Maynard v. Housing Appeals Comm., 370 Mass. 64, 66 (1976); Olde Towne Liquor Store, Inc. v. Alcoholic Beverages Control Commn., 372 Mass. 152, 156 (1977); New England Tel. & Tel. Co. v. Department of Pub. Util., 376 Mass. 28, 33 (1978); Arthurs v. Board of Registration in Medicine, 383 Mass. 299, 315-316 (1981); Massachusetts State Pharmaceutical Assn. v. Rate Setting Commn., 387 Mass. 122, 130 (1982); Brookline v. Commissioner of Dept. of Environmental Quality Engr., 387 Mass. 372, 393 (1982); School Comm. of Stoughton v. Labor Relations Commn., 4 Mass. App. Ct. 262, 271-272 (1976); Charlesbank Restaurant, Inc. v. Alcoholic Beverages Control Commn., 12 Mass. App. Ct. 879, 880 (1981).
The plaintiffs may not have assessed the import of what was said in Fortier v. Department of Pub. Util., 342 Mass. 728, 733, 735-736 (1961), and in Massachusetts State Pharmaceutical Assn. v. Rate Setting Commn., 387 Mass. 122, 131 (1982).
“The supreme judicial court and the appeals court shall have concurrent jurisdiction to review any proceedings had, determinations made,
“The supreme judicial court shall have jurisdiction to review any proceedings had, determinations made and orders or decrees issued in the superior court pursuant to section fourteen in the same manner and to the same extent as in equity suits, so far as the provisions governing equity suits are applicable. The court may by rule 'vary the procedure authorized or required by this section upon a finding that the review by the court will thereby be made more simple, speedy and effective” (emphasis supplied) .
“A party aggrieved by a . . . final decree of the superior court may, within twenty days after the entry thereof, appeal therefrom. An appeal . . . from a final decree of the superior court shall be entered in the supreme judicial court” (emphasis supplied).
“A party aggrieved by a final judgment of the superior court. . . may appeal therefrom to the appeals court or, subject to the provisions of section ten of chapter two hundred and eleven A, to the full court of the supreme judicial court” (emphasis supplied). The plaintiffs do not contend that the order of remand in this case constitutes a “final judgment” within the meaning of § 113, so far as they are concerned, nor could they properly do so. See Pollack v. Kelly, 372 Mass. at 472; Borman v. Borman, 378 Mass. 775, 779-780 (1979).
As already pointed out, neither the commission nor the intervener has appealed from the action of the Superior Court in setting aside the commission’s decision as the prelude to the order of remand.