Kewley v. Department of Elementary and Secondary Education

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13-P-833 Appeals Court

BARBARA KEWLEY vs. DEPARTMENT OF ELEMENTARY AND SECONDARY

EDUCATION & others. 1

No. 13-P-833.

Suffolk. December 11, 2013. - August 22, 2014.

Present: Green, Sikora, & Milkey, JJ.

License. Administrative Law, Agency, Judicial review, Agency's

interpretation of statute. School and School Committee,

Professional teacher status, Appointment of personnel.

School and School District. Constitutional Law, Police

power. Due Process of Law, License, Retroactive

application of statute, Substantive rights. Statute,

Retroactive application, Construction. Practice, Civil,

Review of administrative action, Action in nature of

mandamus.

Civil action commenced in the Superior Court Department on

August 6, 2009.

The case was heard by Heidi E. Brieger, J., on motions for

summary judgment.

1

Board of Registration in Speech-Language Pathology and

Audiology, and Wachusett Regional School Committee.

2

Daniel O'Connor (Laura Elkayam with him) for the plaintiff.

John M. Stephan, Assistant Attorney General, for the

Department of Elementary & Secondary Education.

Thomas A. Mullen for the Wachusett Regional School

Committee.

SIKORA, J. In 2009 the plaintiff, Barbara Kewley, brought

suit in Superior Court against three governmental defendants:

the Department of Elementary and Secondary Education (DESE); the

Board of Registration in Speech-Language Pathology and Audiology

(board); and the Wachusett Regional School Committee (school

committee) (collectively, defendants). She sought a declaratory

judgment of her eligibility to practice speech and language

therapy in public schools under the authority of her licensure

from the DESE and without licensure from the board, and an

affirmative injunction compelling the school committee to grant

her a teacher's contract as a speech therapist. The defendants

contested those entitlements. At the conclusion of discovery,

the parties composed a statement of agreed material facts and

submitted cross motions for summary judgment. By memorandum of

decision and a conforming order, a judge of the Superior Court

granted full summary judgment in favor of all defendants.

Kewley has appealed. For the following reasons, we now affirm.

Background. 1. Early biography. In 1981 Kewley earned a

bachelor of science degree in the field of speech, language, and

hearing disorders. Also in 1981, she earned a license from the

3

Department of Education certifying her as an "educator" in "all

levels" of "speech," "language," and "hearing disorders" (DESE

license). The life of the license originally was indefinite.

The Legislature subsequently renamed the Department of Education

as DESE. Pursuant to the Education Reform Act of 1993, DESE has

required renewal of licensure at five-year intervals. G. L.

c. 71, § 38G. Kewley has continuously maintained her DESE

license.

During the school year of 1981-1982, Kewley worked for the

Wachusett Regional School District (Wachusett) 2 as a speech

assistant providing speech and language services to its public

school children. During the 1982-1983 academic year, she

remained with Wachusett at the higher position of speech

therapist performing similar services and overseeing an aide.

In September of 1983, she resigned from that position and

relocated to New Hampshire. She later returned to

Massachusetts, and in 1991 sought reemployment with Wachusett.

2. Legislation. Meanwhile by St. 1982, c. 666, the

Legislature on January 6, 1983, introduced a system for "the

licensing of persons engaged in the practice of speech-language

pathology and audiology" (act), effective immediately. The

legislation created the board, with authority to set and to

2

Wachusett administers the public schools in the towns of

Holden, Paxton, Princeton, Rutland, and Sterling.

4

enforce standards for professional qualification, see G. L.

c. 13, §§ 85-87, and G. L. c. 112, § 139; and to exercise the

power of licensure, G. L. c. 112, § 140.

The act itself prescribed, among other requirements for a

license applicant, (1) a bachelor's degree and a master's degree

in the area of speech-language pathology and audiology from a

certified institution; (2) completion of a period of supervised

professional practice; and (3) passage of an examination

approved by the board. G. L. c. 112, § 144. The act mandated

that "[a]ll persons" then "actively engaged in the practice of

speech-language pathology and audiology in the commonwealth

shall apply for a license" from the board within one year from

its effective date. St. 1982, c. 666, § 4. The act prohibited

any person to "hold himself out as a speech-language pathologist

or practice speech-language pathology" 3 without licensure by the

board. G. L. c. 112, § 146, inserted by St. 1982, c. 666, § 2.

The act created two exemptions from these general

requirements. One was a so-called "safe harbor" provision

excepting from the board licensure requirements "the activities

and services" of four classes of individuals: (1) "a qualified

person licensed in the commonwealth under any other law . . .

engaging in the profession or business for which [s]he is

3

We interpret the term "speech-language pathology" as

equivalent to "speech-language therapy" and "speech therapy" for

purposes of this case.

5

licensed, including activities and services by a physician

licensed to practice medicine and surgery and by a person

employed by and under the direct supervision of such physician";

(2) persons engaged in the "specialty of hearing aid fitting and

sales" and charging no separate fees for hearing testing or

interpretation of such tests; (3) teachers of esophageal speech,

certified industrial audiometric technicians or audiometric

screening technicians engaged in no other practice of speech-

language pathology or audiology; and (4) persons participating

in the prerequisite activities (degree work, practical training

experience, or examination performance) for board licensure

eligibility. G. L. c. 112, § 145(1)-(4), inserted by St. 1982,

c. 666, § 2.

The other exemption authorized an alternate or

"grandfathering" pathway to licensure for applicants "actively

engaged in the practice" of speech-language pathology and

audiology in Massachusetts, "upon proof of professional practice

satisfactory to the board." St. 1982, c. 666, § 3. Those

individuals would have to apply within a one-year limit set for

all active practitioners. St. 1982, c. 666, § 4.

In April of 1986, the Legislature added a final

grandfathering provision. Any person possessing licensure for

the practice of speech-language pathology or audiology from the

DESE who had applied to the board for licensure on or before

6

August 1, 1985, would receive a waiver of the master's degree

requirement so long as he or she had engaged actively in

practice in Massachusetts for a period of one continuous year

between January 7, 1983 (the date of the original statutory

effect), and June 30, 1985. St. 1986, c. 19, § 1.

3. Later biography. When Kewley sought reemployment at

Wachusett in 1991, its director of special education advised her

of her lack of board licensure. By correspondence in August of

1992, the board informed her that she did not then qualify for

any statutory exemption or waiver of its eligibility

requirements. Nonetheless she did work for Wachusett as a

speech therapist during 1992 and into 1993, and again from early

1996 through 1999. 4

Since 2000, Wachusett has defined Kewley's position as

"speech assistant" and has withdrawn her from certain functions

usually performed by a speech therapist, including supervision

of an assistant, formal testing of students, conduct of student

evaluations, determination of special needs and of dismissal

from special education services, and formal consultation with

parents and staff. During that period, Wachusett has paid

Kewley as a nonunion employee at an hourly rate. It has

4

From mid-1993 to mid-1995, Kewley resided in New York

State as a result of her husband's employment there.

7

withheld a contractual salaried arrangement typically extended

to its speech therapists.

From 2005 through 2007, Kewley sought licensure from the

board. It denied the application for lack of a qualifying

master's degree and for failure to pursue the alternate pathway

of equivalent competence within the first year of the board's

existence. 5 Since 2000, Wachusett has required its speech

therapists to hold licenses from both DESE and the board.

Analysis. On appeal Kewley maintains that the safe harbor

provision of the 1983 legislation provides her with licensure to

practice speech therapy in public school systems under authority

of her DESE certification, that a contrary interpretation of the

statute retroactively deprives her of an occupational interest

protected by due process principles, and that her qualification

as a speech therapist entitles her to an employment contract

from Wachusett.

1. Standard of review. From the same record viewed by the

motion judge, we review a grant of summary judgment de novo.

Miller v. Cotter, 448 Mass. 671, 676 (2007). In an appeal

resulting from cross motions, the court examines the record in

the light most favorable to the losing party. See, e.g.,

DiLiddo v. Oxford St. Realty, Inc., 450 Mass. 66, 70 (2007);

5

The record indicates that the board has granted Kewley a

lesser license as a "speech-language pathology assistant."

8

McLaughlin v. Berkshire Life Ins. Co. of America, 82 Mass. App.

Ct. 351, 353-354 (2012). We may consider all grounds visible in

the record and supportive of affirmance, even though the parties

and the motion judge may not have relied upon them. See Augat,

Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991); GTE

Prod. Corp. v. Stewart, 421 Mass. 22, 36 (1995). Issues of law,

such as statutory construction and the application of

constitutional standards, are especially suited for summary

disposition and de novo review. See Atlanticare Med. Center v.

Commission of the Div. of Med. Assistance, 439 Mass. 1, 6

(2003); Norfolk & Dedham Mut. Fire Ins. Co. v. Morrison, 456

Mass. 463, 467 (2010).

2. Statutory construction. a. Safe harbor provision.

Kewley contends that the language of the safe harbor provision

preserves her DESE license as authority for continued practice

as a speech therapist in the public schools. She relies

specifically upon the proviso that the newly created board

"shall not prohibit the activities and services of . . . a

qualified person licensed . . . under any other law from

engaging in the profession or business for which he is

licensed." G. L. c. 112, § 145. She reasons that her

preexisting DESE license to practice speech therapy in public

schools comprises such a protected profession. By literal

analysis of the legislative scheme, the motion judge rejected

9

that contention. Both the letter and the apparent purpose of

the legislation support the judge's conclusion and the

consistent position of the board. 6

Literal inspection of the safe harbor provision supports

the narrower view of its exemption. As examples of excepted

"activities and services," the Legislature enumerated (1)

physicians providing therapy adjunct to their practice already

regulated by a separate professional board; (2) persons selling

and fitting hearing aids so long as they made no charge for the

activity, an evident characteristic of the incidental and

limited nature of the permitted activity; and (3) esophageal

speech teachers and certified audiometric technicians for whom

therapeutic services, again, would be subordinate to their

primary work. As both the board and the school committee point

out, those activities share a nature only incidentally

overlapping with the delivery of speech therapy.

By contrast, the provision of services to public school

children pursuant to the DESE license consists primarily of

therapeutic activity, and not merely the secondary provision of

therapeutic service. The ensuing itemized exceptions of the

safe harbor provision support the motion judge's view of the

6

As we discuss infra, the board by its communication with

Kewley in 1992 and 2007 maintained the view that the legislation

limited her means of obtaining a license to the lost

grandfathering opportunities, or full compliance with the 1983

requirements.

10

opening term "qualified person" to mean a person engaged in the

provision of speech therapy as conduct incidental or subordinate

to a separate service. See Boston Assn. of Sch. Administrators

& Supervisors v. Boston Retirement Bd., 383 Mass. 336, 341

(1981) (general statutory term will absorb character of its more

specific associated terms under canon of noscitur a sociis).

b. Grandfather provision. The two grandfather provisions

furnish additional literal support for the narrower range of the

safe harbor language. The 1983 provision for alternate

licensure by independent demonstration of competence

"satisfactory to the board" would afford DESE licensees a

separate pathway to continued practice. St. 1982, c. 666, § 3.

More telling, the 1986 waiver of the master's degree requirement

for DESE licensees practicing for one continuous year during the

first thirty months of the board's existence serves the same

purpose. Neither accommodation, especially the 1986 measure,

would be necessary for DESE licensees if they already enjoyed

anchorage in the safe harbor provision.

The inclusion of DESE licensure in the safe harbor would

render the entire 1986 act, in particular, redundant. That

interpretation would violate the canon forbidding the treatment

of even words and phrases of legislation as superfluous. See,

e.g., Negron v. Gordon, 373 Mass. 199, 205 (1977), and cases

cited; Casa Loma, Inc. v. Alcoholic Bevs. Control Commn., 377

11

Mass. 231, 234 (1979); Commonwealth v. Millican, 449 Mass. 298,

300 (2007). Additionally the targeted particularity of the 1986

act is more persuasive than the generality of the 1983 safe

harbor provision. If two statutes address the same subject, the

application of a later and more specific one will resolve any

arguable ambiguity or inconsistency between the two. See, e.g.,

Clancy v. Wallace, 288 Mass. 557, 564 (1934); Doe v. Attorney

Gen., 425 Mass. 210, 215 (1997); Silva v. Rent-A-Center, Inc.,

454 Mass. 667, 671 (2009).

c. Legislative purpose. If we widen the lens to examine

the over-all design and purpose of the licensure legislation,

the literal interpretation gains reinforcement. See, e.g.,

Roberts v. Enterprise Rent-A-Car Co. of Boston, 438 Mass. 187,

194 (2002) (interpretation should produce "internal

consistency"); Boston Police Patrolmen's Assn. v. Police Dept.

of Boston, 446 Mass. 46, 50 (2006) (interpretation should assess

entire structure and purpose of legislation). The 1983 adoption

purposefully creates a comprehensive licensing system. It

establishes an agency dedicated to regulation of the practice of

an emerging health service; it directs that "[a]ll persons"

engaged in its practice must apply for licensure from that

agency; and it forbids any person to "hold himself out" as a

practitioner without the board's certification. As the board

points out, the remedial exercise of the police power for a

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public health purpose usually receives liberal interpretation.

See Kvitka v. Board of Registration in Med., 407 Mass. 140, 143,

cert. denied, 498 U.S. 823 (1990). The inferable purpose of

such public health legislation is the assurance of professional

competence by a central agency's administration of coherent,

uniform standards. The operation of multiple licensing sources

and standards would undermine the objective of clear and

reliable qualifications. 7

d. Agency view. Finally, the views of an agency charged

with the administration of a statutory scheme are entitled to

respect so long as they are reasonable, Boston Retirement Bd. v.

Contributory Retirement Appeal Bd., 441 Mass. 78, 82 (2004),

especially if they arose early in the life of the statute and

have remained consistent, see Board of Educ. v. Assessor of

Worcester, 368 Mass. 511, 515-516 (1975); Taylor v. Housing

Appeals Comm., 451 Mass. 149, 154 (2008). In this instance, the

board has steadily interpreted the statutes to limit Kewley's

eligibility to the enumerated prerequisites (educational

degrees, practice, examination) or timely fulfillment of the

grandfathering options. It maintained those positions by

7

We have considered Kewley's proposal that the 1986 waiver

aims to assist only those DESE licensees wishing to expand their

practice beyond the confines of public school services and

leaves in place the remaining teachers. However, that view

presumes existing protection from the safe harbor provision and

receives no support from the letter and policy of either the

1983 or 1986 legislation.

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correspondence with her in August of 1992 and by denial of an

application in 2007.

3. Due process claims. Kewley contends that the board's

enforcement of the 1983 licensure requirements results in a de

facto revocation of her DESE license in violation of due process

standards under both the Fourteenth Amendment of the Federal

Constitution and art. 12 of the Massachusetts Declaration of

Rights.

As a matter of substantive due process principles under

both constitutions, an occupational license constitutes a

protected interest. See Blue Hills Cemetery, Inc. v. Board of

Registration in Embalming & Funeral Directing, 379 Mass. 368,

372 (1979), citing McMurdo v. Getter, 298 Mass. 363, 365-366

(1937) ("the right to engage in any lawful occupation is an

aspect of the liberty and property interests protected by the

substantive reach of the due process clause of the Fourteenth

Amendment to the United States Constitution and analogous

provisions of our State Constitution"); Walden v. Board of

Registration in Nursing, 395 Mass. 263, 271 (1985) ("right to

work as a nurse is protected against deprivation without due

process of law"), and cases cited. See, e.g., Matter of Kenney,

399 Mass. 431, 436 (1987) (attorney's license); Goldstein v.

Board of Registration of Chiropractors, 426 Mass. 606, 613

(1998) (chiropractor's license); Lindsay v. Department of Social

14

Servs., 439 Mass. 789, 803 n.12 (2003) (day care provider's

license). Substantive due process requires the government to

establish a rational basis for the deprivation or the diminution

of such licensure. See Williamson v. Lee Optical of Okla.,

Inc., 348 U.S. 483, 488 (1955); Walden v. Board of Registration

in Nursing, supra. The governmental action must reasonably

serve a legitimate purpose of the public health, safety, or

welfare. Leigh v. Board of Registration in Nursing, 395 Mass.

670, 683 (1985), S.C., 399 Mass. 558 (1987), and cases cited.

In cases of retroactive regulation of vested property

interests, substantive due process will hinge on the balance of

three considerations: the nature of the public interest served

by the regulation; the nature of the right or protected interest

divested or diminished by the regulation; and the extent or

scope of the regulatory effect or impact. See American Mfrs.

Mut. Ins. Co. v. Commissioner of Ins., 374 Mass. 181, 191

(1978); Leibovich v. Antonellis, 410 Mass. 568, 577 (1991), and

cases cited; Carleton v. Framingham, 418 Mass. 623, 631 (1994).

See also Hochman, The Supreme Court and the Constitutionality of

Retroactive Legislation, 73 Harv. L. Rev. 692, 697 (1960).

By this calculus, the 1983 legislation displaced Kewley's

existing license but did not do so unconstitutionally. The

purpose of the new licensure system lay well within the police

power: to assure competence or to elevate competence in the

15

practice of a public health care profession. The affected

interest was substantial: an earned permit to pursue a

livelihood of service and compensation.

The decisive third consideration is the extent of the

Legislative displacement. The scheme here included critical,

equitable accommodations: the original 1983 grandfathering

alternative pathway to licensure by separate proof of

competence; and the 1986 waiver of the master's degree

requirement. Both were available to Kewley and similarly

situated DESE licensees. She was practicing at Wachusett from

January through August of 1983, an eight-month interim during

which the alternate pathway was open. She was residing in

Massachusetts and the neighboring state of New Hampshire through

the thirty-month period from January of 1983, through June of

1985, during which the 1986 act allowed DESE licensees to

achieve a waiver of the master's degree requirement by means of

one year of continuous practice. She did not take advantage of

either alternative. Those grandfathering mechanisms of the

legislation prevented unreasonable retroactivity and therefore

unconstitutional deprivation of a vested professional licensure.

4. School committee's standards for contractual

employment. The school committee presents an additional

distinctive and valid defense. The provision authorizing

licensure by DESE, G. L. c. 71, § 38G, as appearing in St. 1983,

16

c. 495, § 26, states in relevant part, "No person shall be

eligible for employment as a teacher . . . unless [s]he has been

granted by the commissioner a . . . standard certificate with

respect to the type of position for which [s]he seeks

employment; provided, however, that nothing herein shall be

construed to prevent a school committee from prescribing

additional qualifications." It is undisputed that since

approximately 2000 Wachusett has required teachers of speech-

language therapy to possess both the DESE license and the board

license.

Wachusett's exercise of that lawful discretionary authority

(by the school committee or administrators) is immune from any

requested affirmative injunctive order compelling the issuance

of a contract to Kewley. A Massachusetts court may not

"mandamus" discretionary governmental action. See McLean v.

Mayor of Holyoke, 216 Mass. 62, 64-65 (1913); Berman v. Board of

Registration in Med., 355 Mass. 358, 360 (1969); Urban Trans.,

Inc. v. Mayor of Boston, 373 Mass. 693, 698 (1977), and cases

cited.

Judgment affirmed.