*1
Forsyth Hygienists Dentistry. Board for Dental in Registration Hygienists School for Dental vs. Board of
Registration Dentistry. in Suffolk. 1988. 1989. 9, 2, November March Hennessey, & Lynch, C.J., Wilkins, Liacos, Abrams, Nolan, Present: O'Connor, JJ. Law, Hygienist. Dental Regulation Due Process activity. economic Law, power, Constitutional Police speech Freedom of and press. State Law, Administrative Procedure Act. Administrative Adjudicatory pro- Practice, Civil, ceeding, Hearing, Judicial review. Relief in the nature of certiorari.
A training school for the hygienists, seeking dental permission under G. L. c. from the Registration Board of in Dentistry to curriculum,
include certain in course was not entitled to a full 1, 10, adjudicatory hearing pursuant §§ & 11 of G. Act, State Administrative Procedure since the request school’s did not implicate right to engage [214-215], occupation in its lawful any since resulting restriction on the school’s exercise of free-speech rights merely incidental to the permissible regulation board’s [215-217], J., school’s activities with whom Lynch, Nolan, Liacos JJ., joined, dissenting. certiorari, In an action in judicial the nature of seeking review aof decision by Registration the Board of in Dentistry under G. L. c.
denying a request school’s for permission to include a certain course its curriculum for dental hygienists, review was limited ato determination In an in Dentistry whether the board had action for under G. L. c. review a acted of decision 112, 51, arbitrarily denying school’s capriciously. [217] request
permission to include a certain course in its curriculum for dental hygienists, the school did not demonstrating meet its burden of arbitrarily board had acted and capriciously, or based its decision on a legally untenable ground. [217-219]
Civil action commenced Department on July
The case was heard by James F. McHugh, J.
The Supreme Judicial Court on its own initiative transferred the case from the Court. Appeals *2 D. Cloutier & Antoinette Hub- F. Kehoe
Ronald {RonaldR. him) bard with for plaintiff. General, Moore, the defend- for
Alice E. Assistant Attorney ant. School for Dental The
Abrams, J. plaintiff, a a (school), from judgment Superior appeals Hygienists the Board of Reg- against Court judge dismissing complaint the board (board). The school petitioned istration Dentistry (1986 ed.), to for permission to G. L. pursuant on the administration a course include in curriculum practical The board nitrous oxide analgesia. of local anesthesia and school then and was school’s The sought, denied the petition. denied, The school relief in the Court. appealed on our own motion. We case to this court we transferred the affirm. Boston, located in offering school is institution a private in dental school course of study hygiene.
a two-year, post-high from States foreign school attracts students many countries, throughout seek and its graduates employment country. board for the school permission
In petitioned May, on the administration and clinical course to teach a didactic Such oxide analgesia. permission local anesthesia and nitrous because, 112, § and the board’s under G. L. c. is necessary thereunder, a may delegate dentist regulations adopted See 234 Code to a dental hygienist. either of these procedures the board (1986). The school (c) § 2.04 petitioned Mass. Regs. however, which fourth to G. L. par., pursuant to teach a school petition permission that may provides duties. such nondelegable affidavit lengthy the school submitted
With its petition, Lobene, ad- and chief academic R. its dean from Dr. Ralph Lobene’s affidavit described proposed ministrator. Dr. assure that would the measures course of study emphasized on whom students and clinical of the fellow patients safety out Lobene also Dr. pointed the students would practice. from through had had similar the school program 19,849 anesthetizations were a total of there that program, v. Board of Registration with “not a serious adverse effect dental hygienists, single on any patient participating.”
Dr. Lobene’s affidavit also set forth reasons for seeking to teach such a course. to Lobene’s permission According affidavit, California now that all dental be requires hygienists trained in the administration of local anesthesia and of nitrous oxide can sit before for the analgesia they registration qualify in that examination State. The school felt itself bound ethically courses for those students who wished pay postgraduate in California and had been unable to the neces- get *3 the sary at school. Dr. Lobene stated that training twenty-four schools in thirteen States now offer courses in local anesthesia States, and nitrous oxide the in analgesia, fact that those despite Massachusetts, as in those tasks be cannot to dental delegated Moreover, at least fifteen do hygienists. other States permit the of these functions. The school’s delegation motive in pe- board, thus, the was to retain its titioning and competitiveness in its field. standing June, 1984, The board met in the consider school’s pe- tition. Before it were the affidavit Dr. and Lobene an affidavit Miller, from Dr. Roland J. who would teach the proposed Cohen, course. Dr. Stanley Massachu- president-elect setts Dental and the Society, counsel to the legal society, spoke to the Dr. Cohen testified to opposition petition. the dangers anesthesia, of local reaction, which include toxic or allergic infection, fainting, anesthesia and and of prolonged clotting; nitrous oxide analgesia, which is severe or hypoxia, inadequate oxygenation, loss of resulting consciousness. Some these effects, death, can have complications irreversible including if are not on treated an they basis. The board voted emergency the same the The day deny board did not detail its petition. reasons for until after the school instituted refusing permission, this action. Court,
In its in the on complaint Superior appeal, school asserts that the board failed accord it adjudicatory to which it proceeding claims it was entitled under G. L. 30A, 1§§ and that is entitled to review under 30A, the standards of G. L. c. § 14. The school argues .211 Registration in Dental 249, § to review under G. L. c. that it is entitled alternative the board for a should be remanded to and that the matter court to would reviewing statement of reasons that permit was or whether the board’s action arbitrary capricious. ascertain The school claims that 1. G. L. c. 30A. The applicability of denied, was after which its the board’s petition hearing, an “Adjudicatory proceeding” “adjudicatory” proceeding. 30A, § as “a before an defined in G. L. c. proceeding or in which the duties spe legal rights, privileges agency constitutional named cifically required persons after Laws to be determined General by any provision If is “ad an agency hearing.” proceeding opportunity Further, §§ 10 and 11. it must then comply judicatory,” be reviewable under would such proceeding found, does not dispute, and the board Court judge of G. L. is an within meaning that the board “agency” course, school, named is a 1. The “specifically thus, is whether the school The remaining question, person.” to have the board act on has a constitutional statutory right school after an adjudicatory proceeding. only petition in a lawful both its to engage occupation asserts that *4 stake, and that these are at to freedom of its right speech (i.e., of due the protection process constitutional rights require an adjudicatory proceeding). board in a favorable school has a right
If the
“property”
on its
decision,
to favorable action
petition,
and is “entitled”
the due
to a
under
process provisions
it can claim a right
hearing
Constitution,
the
States
Amendment to United
of the Fourteenth
10,
of
11, and 12 of the Declaration
Rights
arts.
under
Commonwealth,
and under G.
of
Constitution
the
in
lawful
1, 10,
to
any
occupa-
and 11.
right
engage
§§
“[T]he
and
interests protected
is an
of the liberty
property
tion
aspect
the Four-
clause of
reach of the due process
the substantive
and
the United States Constitution
Amendment
to
teenth
Hills
Blue
of our State Constitution.”
analogous provisions
& Fun-
Embalming
in
Inc. v. Board Registration
Cemetery,
of
368,
(1979).
372
Directing,
eral
The school’s lawful right engage calling, to to is not a free from right calling equivalent practice State State otherwise lawful oc- regulation. may regulate as the “a as have rational long regulations tendency cupations health, morals, and to the welfare promote safety, general the Milligan in public.” Pharmacy, 491, (1965), S.C., (1966), 348 Mass. Justices, the 322 Mass. quoting Opinion of Inc., Cemetery, See Blue Hills General supra. Laws case, under which the board acted enum- present erates the tasks that a dentist ato dental may delegate hygienist, and that an educational institution to provides may apply board for to teach not be del- permission procedures may to under 51. The egated hygienists regulations clearly have a health, rational relation to the safety promotion the school does not their challenge general Because validity. the school was in effect for an asking from the exemption contained in L. G. prohibition could claim no Therefore, entitlement. judge con- correctly cluded that the board was not to a obliged give school full adjudicatory hearing.
The two cases which the school cites of its claims support a cases, for In hearing distinguishable. those two applicants licenses established to professional a fair adminis- trative reasonable procedures opportunity review because their their lawful oc- inwas cupation Milligan, a licensed question. supra, phar- a macologist denied at the permit open pharmacy location of his choice. In Marmer Board Registration Chiropractors, was denied applicant license after an unfair chiropractor’s examination. allegedly At stake each case was the “applicant’s opportunity engage *5 at all in a at particular Milligan, occupation.” supra case, this the school will to continue as a under school operate the same as all regulations other such schools in the State. Thus, it has not been denied its to in its right engage occupation.
The school also that argues free is right speech impli- cated in the board’s action and that this constitutional right Registration in School for Dental and review under G. L. c. 30A. to
triggers
right
tenable, however,
is
that
board’s action violated
It
the
hardly
the
free
standard is the
rights.
school’s
speech
appropriate
O’Brien,
one enunciated in United States
Neither a right
occupation
is
the board’s decision. The school
to free
speech
implicated
has not advanced
other
duties
“rights,
any
putative
to
that
...
be determined after
are
oppor-
privileges”
“required
conclude, therefore,
We
that
for an agency hearing.”
tunity
and the rules set out in
was not “adjudicatory”
proceeding
right
standing to
the students’
grant
dissent would
the school
raise
appeal
nor on
occupation.
a lawful
Neither in the
to train for
for a lawful
argued
the students’
train
has the school asserted
argument
should be
Assuming for the sake of
that
school
occupation.
rights, the school has not done
to raise the students’ constitutional
permitted
Further,
case,
standing
grant
this
there is no reason to
school
so.
rights
occupation
in a lawful
because
engage
raise the
of students to
Boren,
not
does
Craig
has
been raised.
2. Review in the nature certiorari. The school obtained 249, 4, review under G. L. c. which § review in provides the nature of certiorari for not otherwise review proceedings 249, 4,§ able. Under G. L. c. the standard of review may to the nature of the action for which vary according review is Auth., See Edison Co. v. sought. Boston Boston Redevelopment 37, (1977); 374 Mass. v. McSweeney 48-49 Town Manager 794, case, 379 Mass. 800 In the Lexington, present of the and judge correctly applied “arbitrary standard review. Because the capricious” board is free to use its when and to judgment determining whom to grant from its such can regulations, decisions be con exemptions sidered the exercise of the board’s administrative discretion. 249, An under G. an action in appeal through certiorari, nature of is not available to review generally dis administrative action cretionary determine whether except See, board acted and arbitrarily e.g., Emerson capriciously. Boston, v. 391 422 College Mass. n.14 (1984); School Comm. Educ., 372 Mass. 517 of Hatfield Christ, (1977); First Church Scientists. Alcoholic Beverages Comm’n, Control (1965); 275 Y erar di’s Moody St. Restaurant & Inc. v. Selectmen Lounge, 19 Randolph, (1985).2 Mass. Ct. 296 Under the App. and “arbitrary capri- easily The instant case is Shop, from Saxon Inc. distinguishable Coffee Bd., Licensing Boston in which we held that the revocation aof common victualler’s license was to be reviewed under the case, substantial evidence test. In that analogized we to the standard appli- Saxon, cable to revocation of a Although the liquor license. board in unlike Commission, Beverages the Alcoholic Control is not a agency State within 30A, the meaning of G. L. c. we held the board to the substantial (7) (e), evidence though test as G. L. c. We reasoned applied. statute, proceedings in both instances are required by “[Revocation are adjudicatory . in nature. . . The virtually ‘nature of claim’ is identical Inc., on appeal.” Saxon Shop, supra at 924. The proceeding Coffee 214-215, board in the instant case supra adjudicatory, is not does see at Thus, implicate engage in a occupation. lawful is more analogous to the cases in which an exception sought zoning by-laws. Those apply “arbitrary cases capricious” standard of review. See *7 for Dental is show that the the burden on the plaintiff
clous” standard to the of action is not related protection public challenged health, morals, met and the like. The school has not safety, its burden. as follows.
The the school’s analyzed application judge detail, “First, or does not describe application [the school’s] it to teach with otherwise focus upon program proposes Second, oxide there of nitrous gas. to administration respect anesthesia, administration of local attendant on dangers both the Board and by by recognized [the school] dangers Third, of local injections itself. under proposal, school’s] [the and to be made to fellow students patients anesthesia are to one one-half out who are years students approximately to employ of school. Although high proposes [the school] a of the admin- harm as result safeguards designed prevent under the circumstances de- just istration of anesthesia scribed, is safety track-record although school’s] [the for the this cannot that it was irrational say impressive, be in would not Board to conclude that such program ’ ” interest. ‘public The test is not whether we We with that analysis. agree Rather, deci- result as the board. would reach the same “[t]he on ‘a if is based of the board can be disturbed only sion whimsical, ‘unreasonable, ... ground’ untenable legally Oil (citations omitted). ...” or arbitrary’ capricious, Gulf Mass. 355 Framingham, v. Board Appeals Corp. of of Stoneham, v. (1969). See Zaltman Board Appeals of of it, in had before 484-485 The board Mass. Dr. deliberations, from the school the application affidavits, unsworn as as the Dr. well Lobene’s and Miller’s its disallowance In its letter Dr. Cohen. testimony explaining . . . its “concern the board cites of the school’s petition, interest be in the best of this would not the granting petition The letter lists fifteen complications possible public.” 482, 484-485 (1970); Stoneham, 357 Mass. Appeals Zaltman v. Board 275, 277 Framingham, 355 Mass. Corp. Appeals Oil Gulf (1969). Board of or other reasons of local anes militating against teaching thesia and nitrous oxide twenty-two against analgesia. letter lists ten technical works to which the board referred and also noted its on Dr. reliance Cohen’s testimony.3
We donot with the school that the unsworn agree testimony of Dr. Cohen or the technical which the works to board referred on its own initiative were an basis for decision. It is improper sufficient in these circumstances that board base professional information, its decisions on written testimony, general on which a reasonable would knowledge person rely. *8 record does not of claim that the action the board is support unreasonable, either based on a untenable or is legally ground arbitrary, capricious.
Judgment affirmed. J. JJ., with whom (dissenting, Liacos and Lynch, Nolan, The court decides join). that G. L. c. today 30A does not apply to the board’s actions. I While an disagree. only “adjudicatory 30A, c. proceeding” of triggers requirements statute defines an as one an adjudicatory proceeding “before in which agency the legal rights, duties or of privileges named specifically per sons required by constitutional right by any provision the General Laws to be determined an opportunity after for agency 30A, added). L. hearing” (1) G. c. (emphasis (1986 ed.). 112, 51, Since L. G. c. itself confers no to a whether, hearing, event, thus must be decided in any “[i]t ‘an for an opportunity such an agency hearing’ upon application is ‘required by constitutional within right’ meaning 30A, (1).” § 1 v. Board in Phar Milligan Registration macy, 3The board did not write this letter until rendering some four months after decision, and after the school filed the present had action. The better practice is for board to writing submit its reasons in contemporaneously However, fatal, with its decision. delay the board’s in this case was not as the letter finally sent is sufficiently adequate clear to show for reasons the decision and to review pass “arbitrary under the and capricious” standard. Inc., Moody Lounge, Yerardi's St. Compare supra Restaurant & at 301. 404 Mass. Board of and Marmer supra,
This court both Milligan, recognized Chiropractors, v. Board lawful affecting decisions (1970), that administrative 16-17 individuals’ economic property touch directly occupations Here, the board’s actions well as rights. as rights personal an occupation by impeding bear on the only train, economic interests but also affect Forsyth’s ability Accordingly, maintaining nationally competitive program. decisions of fairness such considerations require “fundamental under reasonable procedures, ... to be made objectively, review.” Milligan, opportunity appropriate supra.1 30A, forth
General Laws c. sets requirements ig- reflects that the board The record hearings. adjudicatory on For- nored of these during many requirements recorded, no No was opportunity syth’s testimony petition. no written to adverse witnesses was provided, respond time the denied was at the board statement of reasons given Forsyth’s petition. to, was entitled but
Because it is apparent denied, the case I believe afforded by protection *9 to the board for a compliance should be remanded I dissent. with G. L. c. 11. Accordingly, Craig claims. standing to assert these 1I believe that has Boren, Court deter Supreme the United States 429 U.S. third rights of standing “to assert those concomitant party mined that a has . . . adversely affected’ [the] would ‘diluted or should parties that be challenge constitutional fail.”