December 21. 1990 Number 3

December 21. 1990 Number 3 Philip W. Johnston. Secretary Executive Office of Human Ser\'ices One Ashburton Place Boston. Massachusetts 02108 David H. Mulligan. Commissioner Department of Public Health 150 Tremont Street Boston. Massachusetts 021 1 Dear Secretary Johnston and Commissioner Mulligan: You have requested an opinion on behalf of the Department of Public Health concerning the meaning of G.L. c. 123. § 35. Specifically, you ask whether "the directors of facilities which provide substance abuse treatment services to individuals who are committed for treatment under Section 35 may release such individuals prior to the expiration of the commitment upon a determination that the release would not result in a likelihood of harm."' I conclude for the following reasons that section 35 does permit such an early release. Section 35 authorizes a district court, upon petition by certain individuals, to commit a person for not more than thirty days upon a find- ing that "said person is an alcoholic or substance abuser and there is a likelihood of serious harm as a result of his alcohol or substance abuse."-^ The statute provides that "commitment shall be for the purpose of inpatient care in public or private facilities approved by the department of public health under the provisions of chapter one hundred and eleven B for the care and treatment of alcoholism or substance abuse. "•* In the alternative, "[tjhe person may be committed to the Massachusetts correctional institu- tion at Bridgewater, if a male, or at Framingham if a female, provided that there are not suitable [DPH-approved] facilities available under chapter ' You inform me that the question has arisen "due in part to the recent expansion orser\ices lor civilly com- mitted women within the community-based substance abuse system. Such expansion has been undertaken in furtherance of the administrations policy to eliminate the need for women to be civilly committed to M.CM. Framingham." "The term "likelihood of.serious harm" is defined in G.L. c. 123. § Land, to summarize, generally requires a "substantial risk of physical harm" to the person or to others as manifested by evidence of various forms of violent behavior, or "a very substantial risk of physical impairment or injury" as manifested by e\ idence that the person's judgment "is so affected that he is unable to protect himself in the community." ' See G.L #c. lilB. §§ I cl scq. In this opinion. I shall generally refer to these facilities as "DPH- appro\eil facilities. 92 P.D. 12 one hundred and eleven B; and provided further that the person so commit- ted shall be housed and treated separately from convicted criminals/* The statute then provides in the following terms for release prior to the end of the commitment period: "A person so committed may be released prior to the expiration of the period of commitment upon determination by the superintendent that release of said person will not result in a likelihood of serious harm."'* In your opinion request you seek to focus my attention on the meaning of the word "superintendent" and ask specifically whether the head of a DPH- approved facility is a "superintendent" for purposes of G.L. c. 1 23. § 35. who is authorized to permit early release. Your question arises because of certain language in the definitional section of chapter 123 which suggests that the head of such a facility is not a "superintendent." That language concerns the general definitions for purposes of chapter 123 of the terms "facility" and "superintendent." Chapter 123 generally regulates the Department of Mental Health, and the definitional section of chapter 123 defines the term "facility" as a facility for "the care and treatment of mentally ill persons" rather than for the care and treatment of alcoholism or substance abuse. A "superintendent" in turn is defined as the head of a facility for the treatment of mentally ill persons.'' You are concerned that, if this definition of "superintendent" applies to sec- tion 35. then the heads of DPH-approved alcohol and substance abuse treatment facilities would be excluded from the category of "superinten- dents" authorized to release persons committed for drug and alcohol abuse The full text of the relevant portions of section 35 is as follows: If. after a hearing, the court based upon competent medical testimony finds that said person is an alcoholic or substance abuser and there is a likelihood of serious harm as a result of his alcoholism or substance abuse, it mav order such person to be committed for a period not to exceed thirty days. Such commitment shall be for the purpose of inpatient care in public or private facilities approved by the department of public health under the provisions of chapter one hundred and eleven B for the care and treatment of alcoholism or substance abuse. The person may be committed to the Massachusetts correc- tion institution at Bridgewater. if a male, or at Framingham. if a female, provided that there are not suit- able facilities available under chapter one hundred and eleven B:and provided, further, that the person so committed shall be housed and treated separately from convicted criminals. A person so committed may be released prior to the expiration of the period ofcommitment upon determination by the superin- tendent that release of said person will not result in a likelihood of serious harm. Said person shall be encouraged to consent to further treatment and shall be allowed voluntarily to remain in the facility for such purposes .... G.L. c. 123. § 35. fourth paragraph. The pertinent definitions are as follows: "Facility", a public or private facility for the care and treatment of mentally ill persons, except for the Bridgewater State Hospital. "Superintendent", the superintendent or other head of a public or private facility. G.L. c. 123. § 1. P.D. 12 93 treatment facilities would be excluded from the category of "superinten- dents" authorized to release persons committed for drug and alcohol abuse treatment. You propose, however, that the general definitions contained in section 1 need not apply to section 35 because the context of section 35 requires a different definition. Accepdng. for the purposes of this opinion, your assumption that the definition of "superintendent" contained in section 1 does not include the head of an alcohol and substance abuse treatment facility.^ I agree with your proposition that the definifions contained in section 1 need not apply. As you point out. section 1 contains a provision that its definitions apply within chapter 1 23 "unless the context otherwise requires." See G.L. c. 1 23. § 1. first paragraph. The context of secdon 35 plainly requires that the "superintendent" authorized to release committed persons from DPH- approved facility for the treatment of alcoholism and substance abuse is the superintendent or other head of that facility. This is because, whatever types of treatment facilides are included in the section 1 definidon of facility, secdon 35. by its express terms, prescribes that the facilities to which it refers are "facilities ... for the care and treat- ment of alcoholism or substance abuse." G.L. c. 123. § 35. The head of such a facility is the only logical "superintendent" who would be in a position to make the determination required by the statute whether the release of the person committed to his or her facility would result in a likelihood of serious harm. On a more basic level, there simply is no "facility for the care and treatment of mentally ill persons" to which secdon 35 refers whose head could be intended by the term "superintendent." As between the superinten- dent of the alcoholism and substance abuse treatment facility to which a person has been committed and the head of some unspecified facility for the treatment of mental illness nowhere referred to in section 35, it is plainly the former which must have been intended by the word "superintendent" in secdon 35. In sum. therefore, to the extent that the general definitions of section 1 exclude the head of a DPH-approved facility, these definitions would not apply to section 35. It might not be impossible to view alcohol and substance abuse treatment facilities as included within the term "facility for the care and treatment of mentally ill persons." G.L. c. 123. § 1. In light of my conclusion that the general definitions of section 1 need not apply in the context of section 35. see text immediately posJ. I will, for the purposes of this opinion, accept your assumption and refrain from addressing any question concerning the precise scope of the general definitions ofsuperintendent" or "facility" contained inG.L. c. 123. § 1. 94 P.D. 12 This conclusion, however, does not fully resolve the question whether section 35 authorizes the head of a DPH-approved facility to release com- mitted persons prior to the end of the commitment period. Entirely apart from the concern raised by the definition of "superintendent" in section 1. discern in the section 35 early release provision an ambiguity which raises the question whether the early release provision applies to all persons com- mitted pursuant to section 35 or whether it applies only to persons commit- ted to the facilities at the Massachusetts Correctional Institutions at Bridgewater and Framingham. If the early release provision applies only to the latter, then the only official to whom the word "superintendent" could logically refer is the superintendent or other head of the Massachusetts Correctional Institutions' facilities, and. in any event, no person committed to a DPH-approved facility would be eligible for application of the early release provision. The ambiguity to which I refer is in the phrase "(a] person so committed." G.L. c. 123. § 35. ^ As previously noted, section 35 provides that a court, upon appropriate fundings, may order an alcoholic or substance abuser "to be committed for a period not to exceed thirty days." The statute states that "such commitment" shall be to a DPH-approved facility, but that, if no suit- able facilities are available, the person may be committed to the Massachusetts Correctional Institutions at Bridgewater or Framingham "provided that . . . the person so committed shall be housed and treated separately from convicted criminals" (emphasis added). The next sentence is the provision concerning early release, and it states that "A person so committed may be released prior to the expiration of the period of commit- ment upon determination by the superintendent that release of said person will not resuh in a likelihood of serious harm" (emphasis added). Viewed in isoladon. it is unclear whether "[a] person so committed" refers, as did the phrase "the person so committed" in the previous sentence, to persons committed to the Massachusetts Correctional Institutions or whether it refers more generally to any persons committed pursuant to sec- tion 35. including those committed to DPH-approved facilities. Viewed in context, however, and in light of its legislative purpose, the phrase must be seen to refer to any persons committed pursuant to section 35. ^ Although your opinion request does not specifically seek my interpretation of this phrase. I must do so in order to resolve your question, and I therefore proceed to consider the issue. See Op. Atty Gen. No. 3. Rep. A.G.. Pub. Doc.' No. 12 at (1985) (slip op. at 8). P.D. 12 95 Looking first to context, the use in the sentence on early release of the generic term "the superintendent." together with the use of the generic term "the faciUty" in the subsequent sentence which speaks of encouraging "said person" to remain voluntarily in "the facility." see ante at n. 4. suggests that the early release provision refers to commitment to any facility for drug and alcohol abuse treatment, not just the facilities at the Massachusetts Correc- tional Institutions. Indeed, when elsewhere in section 35 a reference is made specifically to the Massachusetts Correcdonal Institutions, a more specific term, "separated facilites." is used.^ As to legislative purpose, it too leads to the conclusion that the early release provision be interpreted to apply to the release of any committed persons. Under the express terms of section 35. the only basis for the com- mitment of a alcoholic or substance abuser is that there exist "a likelihood of serious harm as a result of [the] alcoholism or substance abuse." The plain purpose of the early release provision is to avoid a person's continued involuntary commitment once the basis for the commitment has ceased to exist by authorizing someone, i.e. "the superintendent." to release the per- son, without having to return to court for a modificafion of the commitment order, once the likelihood of serious harm has passed. A reading of the sen- tence on early release to refer only to persons committed to the Massachusetts Correctional Institudons would leave no method for the speedy early release of other persons committed to DPH-approved facilifies. I can conceive of no reason why a speedy, non-judicial method of release would have been made available only to some committed persons who no longer meet the criterion for commitment but not to others. Finally, although the legislative history is not conclusive, an early draft of section 35. appearing in 1970 House Bill No. 5021. indicates that the early release provision was not conceived as a special provision for the early release only of persons committed to Massachusetts Correctional Institutions. This draft of section 35 (then numbered section 33) contained the same ambiguity as currently appears in the use of the phrase "[a] person so committed." It provided, however, for the early release of such "(a] person so committed" by either "the superintendent of a departmental facility or The reference is contained in the fifth paragraph of G.L. c. 123. § 35. which reads as follows: Nothing in this section shall preclude any public or private facility for the care and treatment of alcoholism or substance abuse, including the separated facilities at the Massachusetts Correctional Institutions at Bridgewater and Framingham. from treating persons on a voluntary basis. 96 P.D. 12 the medical director of Bridgewater State Hospital." 1970 House Bill No. 5021. The reference to "departmental facility" seems clearly to be to DPH- approved (and also, at that time. Department of Mental Health-approved) facilities since no other "departments" are mentioned in the draft. Early release from DPH-approved (and DMH-approved) facilities as well as from the Massachusetts Correctional Institutions was. therefore, plainly intended. The use in the enacted version of section 35 of the single generic term "superintendent" to refer to the official authorized to permit early release does not suggest an abandonment of that intent but only a belief that the general term was adequate to encompass the heads of all relevant facilities. Indeed, had the final intent been to permit only early release from commitment to the Massachusetts Correctional Institutions, the drafters would have been expected to resort to more specific rather than more general terminology. In sum, I conclude that the term "superintendent" as used in section 35 includes the superintendent or other head of a DPH-approved facility for the care and treatment of alcoholism or substance abuse, and that section 35 permits the head of such a facility to release a person committed to the facility prior to the termination of the commitment period upon a deter- mination that release would not result in a likelihood of serious harm. Sincerely yours, JAMES M. SHANNON ATTORNEY GENERAL 97 P.D. 12 Februarv- 7. 1991 Number 4 The Honorable Michael Joseph Connolly Secretary of the Commonwealth State House Boston, Massachusetts 02133 Dear Secretary Connolly: You have asked my opinion whether chapter 408 of the Acts of 1990. entitled "An Act to Provide Protection for Endangered and Threatened Species." may be the subject of a referendum petition under Article 48 of the Amendments to the Massachusetts Constitution. Your opinion request arises because a referendum petition calling for the repeal of this law. signed by ten qualified voters, was filed with your office in a timely fashion. For the reasons discussed below, I have concluded tha the law in question is an appropriate subject for a referendum petition. The primary effect of chapter 408 of the Acts of 1990 is to insert into the General Laws a new chapter 131 A. In general, the new law provides legal protection for species of plants and animals that it classifies according to degree of endangerment into three categories: "endangered," "threatened," and "of special concern." G.L. c. 131 A, § 1, as added by St. 1990. c. 408. §4. Following standards and procedures set forth in the law. the Director of the state Division of Fisheries and Wildlife is required to list protected species into the prescribed categories and to designate "significant habitats" which contain features important to the conservafion of threatened or endangered species. G.L. c. 13 1 A, § 4. Subject to various limitations and exceptions, the law prohibits the possessing, transporting, buying, selling or conduct of cer- tain other acfivities involving protected species, and it prohibits the altera- tion of a "significant habitat" without a permit issued by the Director. G.L. c. 131 A. § § 2, 3, 5. Other provisions relate to such matters as the promulgation of regulafions to implement the law. id. at § 4, the creation of a right of appeal of decisions of the Director to the Secretary of Environmental Affairs, id. at § 4. and the prescription of penaldes for violation of the law. id. at § 6. A law that relates to any matter excluded by Article 48 from the referen- 98 P.D. 12 dum process may not be the subject of a referendum petition.' I have examined the various provisions of the law and have determined that they contain no excluded matter. Only two issues require a brief discussion. First, among matters excluded from the referendum process are laws which are inconsistent with the right to receive compensation for private property appropriated to public use. Amendments, art. 48, The Initiative, pt. II. § 2. Chapter 408 provides for restrictions on the alteration of private property which, because of its importance to the conservation of threatened or endangered species, the Director of Wildlife and Fisheries designates as a "significant habitat." G.L. c. 131A. § § 2. 4. 5. as added by St. 1990. c. 408. § 4. The law. however, expressly provides that owners of land containing a significant habitat may petition the Director to consider purchasing the habitat, id. at § 4. par. 9. and that a landowner aggrieved by the designation of a significant habitat may file an action in court to determine whether the designadon constitutes a taking requiring compensation under the Con- stitution of the United States. Id. at § 5(e). The law. therefore, provides for a means ofobtaining compensation for any restrictions on the use of a signifi- cant habitat that would effectively constitute a taking of property for public use. It does not, therefore, fall within the exclusion. See Yankee Atomic Electric Co. v. Secretary of the Commonwealth. 402 Mass. 750, 753 (1988). Second, Article 48 excludes from the referendum process any law that relates to the "powers . . . of courts." Amendments, art. 48, The Referendum, pt. Ill, § 2. The questions as to the application of this exclusion to chapter 408 is raised because, as previously mentioned, the law provides for court actions to determine whether the designation of a "significant habitat" con- stitutes a taking requiring compensation under the Constitution of the Amendments, art. 48. The Referendum, pt. III. § 2. provides the following exclusions: No law that relates to religion, religious practices or religious institutions; or to the appointment, qualification, tenure, removal or compensation of judges: or to the powers, creation or abolition of courts; or the operation of which is restricted to a particular town, city or other political division or to particular districts or localities of the commonwealth; or that appropriates money for the current or ordinary expenses of the commonwealth or for any of its departments, boards, commissions or institutions shall be the subject of a referendum petition. In addition. Amendments, art. 48, The Initiative, pt. II. § 2, sets forth the following additional exclusions: No proposition inconsistent with any one of the following rights of the individual, as at present declared in the declaration of rights, shall be the subject of a[l . . . referendum petition: The right to receive com- pensation for private property appropriated to public use; the right of access to and protection in courts of justice; the right of trial by jury; protection from unreasonable search, unreasonable bail and the law martial; freedom of the press; freedom of speech; freedom of elections; and the right of peaceable assembly. P.D. 12 99 United States. G.L. c. 131 A. § 5 (e). as added by St. 1990. c. 408. § 4. The law also criminalizes the unauthorized alteration of "significant habitats" and the conduct ot certain activities involving protected species. Id. at § 6. In this regard the law prescribes penalties including fines and imprisonment, and it permits a court to order a violator who alters a significant habitat to restore the habitat to its prior condition. Id. In determining whether these provisions operate to place the law within the "powers . . . of courts" exclusion, the test is whether the "main design" of the law relates to the courts and their powers. Horton v. Attorney General 269 Mass. 503. 509. 511 (1929). As the Court explained in Horton. "(a} general law covering a subject disconnected with the courts in its main features does not come within the prohibition of . . . art. 48 . . . because, in an incidental or subsidiary way. the work of the courts may be increased or diminished or changed." Id. at 511. Accord Opinion of the Justices. 375 Mass. 795. 814-815 (1978): Cohen v. Attorney General. 354 Mass. 384. 387 (1968). The main design test has been specifically applied to conclude that the criminalization of certain conduct in and of itself does not trigger the exclusion. See Commonwealth v. Yee. 361 Mass. 533 (1972). Similariy. the creation or abolition of rights or remedies which are enforceable in court does alone not implicate the exclusion. See Massachusetts Teachers Association v. Secretary of the Commonwealth. 384 Mass. 209. 226 (1981): Horton. 269 Mass. at 51 1. Otherwise, as the Court has observed, the exclu- sion would be so broad as to encompass "any change in any law that was enforceable in the courts, that is virtually any change in the law at all." Massachusetts Teachers Association. 384 Mass. at 226. Chapter 408 is plainly "disconnected with the courts in its main features." Horton. 269 Mass. at 5 1 1 . The law's main design, in light of its fitle and prin- cipal provisions, see id. at 509. is to create a regulatory system adminstered by the Director of the Division of Fisheries and Wildlife aimed at protecting endangered animal and plant species. The main thrust of the law. therefore, is not directed at the powers of courts, and. although the court-related pro- visions may operate to increase the work of the courts in some degree, such an increase touches only incidentally on the powers of the courts. Id. at 51 1. Accordingly, chapter 408 does not fall within the powers o( courts exclusion. In sum. I conclude that chapter 408 of the Acts of 1990 does not contain matter excluded from the referendum process and is appropriately the sub- ject of a referendum petition. I have, therefore, in accordance with your further request, provided you with a fair and concise summary of the law for 100 P.D. 12 inclusion on the petitions that you must prepare for use in gathering additional signatures and for inclusion on the ballot should a sufficient number of signatures be filed with your office within the time period allowed by Article 48. Sincerely SCOTT HARSHBARGER P.D. 12 101 SUMMARY OF CHAPTER 408 OF THE ACTS OF 1990 The law provides legal protection for species of plants and animals that it classifies according to three categories as "endangered," "threatened," and "of special concern." The Director of the state Division of Fisheries and WildHfe is required to list protected species into these categories following standards and pro- cedures set forth in the law. The law provides that no person may take, possess, transport, export, process, sell or buy any protected species. Nor may a common or contract carrier knowingly transport or receive for ship- ment a protected species. Certain exceptions are provided. Protected species which enter Massachusetts from out-of-state may be transported, possessed, or sold in accordance with the terms ofany necessary state and federal permit. Protec- ted plant species may be possessed, propogated, or sold provided that their source is not taken from the wild. The Director may also pemit the use of protected species in certain other circumstances, including for scientific or educational purposes, for propogation in captivity, and. in the case of spe- cial concern species, for purposes of falconry. Finally, the Director may also permit the removal, capture, or destruction of protected species to protect human health. The Director, following standards and procedures set forth in the law. is also required to designate "significant habitats" which contain features important to the conservation of threatened or endangered species. Owners of land designated as a "significant habitat" may appeal that designation to the state Secretary of Environmental Affairs and may petition the Director to consider purchasing the habitat. The law also provides that, in general, no alteration of a significant habitat may commence without a written per- mit issued by the Director. The Director may issue a permit only if he or she finds that the proposed action will not reduce the viability of the habitat to support the endangered or threatened species population involved. The law contains certain exceptions and qualificafions to the permit pro- visions just described. Special permitting rules apply to certain vegetation management acfivities of gas and electric utility companies and to activities for which a final environmental impact report certified by the Secretary of Environmental Affairs has been issued or has been found by the Secretary not to be required. No permit is required for work performed in the normal maintenance or improvement of land in agricultural or aquacultural use. Separate provision is also made for the construction of certain single family houses on land in existence and owned by the person wishing to construct 102 P.D. 12 on January 1, 1991. Landowners aggrieved by a decision of the Director or by the Director's failure to act under the law may appeal to the Secretary of Environmental Affairs. In addition, a landowner aggrieved by a decision of the Director may file an action in court to determine whether the Director's decision constitutes a taking requiring compensation under the Constitution of the United States. Finally, the law requires government agencies to use their power to further the purposes of the law, and it requires the Division of Fisheries and Wildlife to adopt implementing regulations following standards and pro- cedures set forth in the law. It also provides criminal penalties for violations of the law including fines and imprisonment. In addition or as an alterna- tive to these penalties, a court may order a violator who alters a significant habitat to restore the habitat to its prior condition. P.D. 12 103