Number 17. November 1, 1968

Number 17. November 1, 1968 HONORABLE ROBERT F. OTT Commissioner of Public Welfare 600 Washington Street Boston, Massachusetts 021 1 Dear Commissioner Ott: You have requested my opinion as to whether liens previously imposed under G.L. c. 118A, § 4 by cities and towns on real estate of welfare recipients have survived the Welfare Reorganization Act of 1967, St. 1967, c. 658, which became effective on July 1, 1968. Specifically, you ask: "1. Are those liens recorded in accordance with the provisions of General Laws Chapter 118A section 4 as inserted by Chapter 801 of the Acts of 1951 and from time to time amended, now enforceable? 2. If the answer to question number 1 is in the affirmative, under what provision of law and by what procedure? 3. If the answer to question number 1 is in the negative, how may such liens be released in order to clear the title? *These experts believe that the use of such a towing device might well present special prob- lems of braking and handling, would tend to increase the circumference of the path taken by the towing combination on curves, and would increase the danger of one of the vehicles breaking away from the towing combination. Any one of these factors would obviously "create another element of uncertainty in the overtaking and passing by other vehicles." P.D. 12 67 4. Prior to July 1, 1968, under appropriate conditions, such liens were released by an instrument signed by the local board of public welfare or a person designated by such board and recorded in the proper registry. Section 79 of the before referred to Chapter 658 contains the provision: 'All powers and duties exercised by such boards and offices are hereby transferred to the state department of public welfare' Would the signing of such a release or discharge be considered such a power or duty and may such a function be performed by a person or persons designated by the Commissioner? 5. If the answer to number 4 is in the negative, by whom should such a release be signed?" Prior to its amendment in 1967, G.L. c. 1 18A, § 4 directed a municipality to take a lien on certain real estate of recipients of old age assistance as a condition of granting such assistance to them. Section 4 also provided that the lien was to be recorded in the appropriate registry of deeds and was to be enforceable by a bill in equity with the consent of the Department of Public Welfare, "upon the death of the recipient [unless his wife continued to reside on the property] or his otherwise ceasing to receive old age assistance from it." The lien was not enforceable however when the combined value of the recipient's real estate at the time of his death, together with the cash surrender value of certain life insurance, did not exceed $1500. Proceeds above an exempt portion realized from the enforcement of a lien were to be apportioned among the Federal government, the Commonwealth and the city or town furnishing the old age assistance in proportion to their respective contributions up to the amount contributed. Upon a voluntary sale of the real estate by a welfare recipient, the proceeds above a certain exempt amount were also applied in satisfaction of the Uen. The Welfare Reorganization Act of 1967 made a comprehensive revision of the Commonwealth's public welfare structure. 1 Although its essential feature was the transfer to the Commonwealth of the public welfare functions previously assigned to the cities and towns, many other changes in the welfare statutes were also made. Among them was the following: "Section 39. Said chapter 118A is hereby further amended by striking out section 4 and inserting in place thereof the following section: "Section 4 The ownership in vacant land from which no income is derived, or the ownership of an interest in real estate by an applicant who resides thereon or who, in the opinion of the department, is residing elsewhere than on such real estate because of physical or mental incapacity, shall not disqualify him from receiving assistance under this chapter." On the background of the Act, see "Meeting the Problems of People in Massachusetts, National Study Service (1966). 68 P.D. 12 None of the provisions in old § 4 relative to liens were retained. The elimination of the provisions for old age assistance liens by the drastically revised provisions of the new § 4 manifests a strong legislative policy against the retention of such liens. Standing by itself in the light of this background, the new § 4 would accordingly have the effect of abolishing all liens, whatever the state of their enforcement might be on July 1, 1968. Wilson v. Head, 184 Mass. 5 1 5 ; Pittsley v. David, 298 Mass. 552. To be distinguished are cases where an old law is regarded as remaining in force as to pre-existing rights when a repealing act substantially retains the former provisions. United Hebrew Benevolent Associa- tion v. Benshimol, 130 Mass. 325, 327; McAdam v. Federal Mutual Liability Insurance Co., 288 Mass. 537, 541. The present situation also differs from cases such as Manchester v. Popkin, 237 Mass. 434, and Frank Kumin Co. Inc. v. Marean, 283 Mass. 332, 335, where a construction which would treat outstanding rights under an earlier statute as eliminated by a later statute would raise serious constitutional questions. However, where no vested rights are involved - and, as indicated below, I believe that none are involved here - such an obstacle to a total replacement of the earlier version is not present. It is clear that the Legislature was not required to preserve existing old-age assistance liens. Since the Legislature originally created them for the benefit of cities and towns in their public as distinct from their private capacity, the liens remained subject to legislative control and were subject to transfer by the Legislature to some other agency of government charged with the same duties or they could have been devoted to other public purposes without the payment of compensation. Higginson v. Treasurer etc. of Boston, 212 Mass. 583, 585; Worcester v. Commonwealth, 345 Mass. 99, 100. I believe that it is equally true that if the Legislature considers it in the public interest to abolish by a statute of general application a certain class of municipal property rights created by statute and held in a public capacity, such as the right involved here, it may lawfully do so. See Opinion of the Justices, 1968 Mass. Adv. Sh. 1099. Cases which have held that the rights of private parties to existing liens under contracts may not be disturbed by subsequent legislation must be sharply distinguished. See Manchester v. Popkin, 237 Mass. 434, 436-437. In summary, then, if § 4 of the new Act stood alone, all existing old-age assistance liens whether or not in the process of enforcement would have been abolished on July 1, 1968. However, § 4 was not enacted in isolation. Section 80 of the new Act provided: "All petitions, applications, hearings and other proceedings duly pending before, and all prosecutions and legal and other proceedings duly begun by, any city or town board or office abolished by this act or before or by any member, officer or employee thereof, shall continue unabated and remain in full force and effect notwithstand- ing passage of this act, and may be completed before or by the department of public welfare." It is my opinion that the foregoing section has kept in force all judicial proceedings begun before July 1, 1968 to enforce liens previously taken by cities and towns under former § 4 of G.L. c. 118. These proceedings may, in my judgment, still be maintained according to the procedure set forth in former § 4 but the Department of Public Welfare should by motion in each case be substituted as the plaintiff. Distribution of any proceeds realized in such proceedings should be made in the manner and proportions provided in the former section. P.D. 12 69 Although § 80 of the new Act thus preserves those liens which were in the process of judicial enforcement on July 1, 1968, it is not, however, broad enough to preserve liens which were not on that date the subject of a petition or bill in equity already filed in the Superior Court or in an appropriate Probate Court. Liens with respect to which no petition or bill had been filed were, as already stated, abolished by force of the new § 4 of G.L. c. 1 18A. I find nothing in the new § 4A of G.L. c. 118A which alters the foregoing conclusions. Section 4A in both its old and new versions imposes a personal unsecured obligation, with certain limitations, on each old-age welfare recipient for old age assistance payments made to him under G.L. c. 1 18A. Section 4A has always been separate from § 4. City ofMedfordv. Quinn, 352 Mass. 42, 44-45; City of New Bedford v. Bender, 345 Mass. 544. Haverhill v. Porter, 333 Mass. 594, 598. Each section has a different statutory background, § 4 dating back to St. 1951, c. 801 (amending St. 1936, c. 436, § 1) while § 4A goes back to St. 1941, c. 729, § 5. See City of Worcester v. Quinn, 304 Mass. 276, decided in 1939, and holding that § 4 created no personal liability on the part of a recipient of old age assistance payments to reimburse a municipality therefor. It is likely that § 4A was inserted in 1941 to impose such liability. Further, there is nothing to indicate that a lien taken under § 4 stood as security for the statutory cause of action created by § 4A. I have not overlooked the sentence in the new § 4A winch provides: "The commonwealth shall succeed to and shall have all rights of enforcement of any causes of action which shall have accrued to any city or town for or on account of any payments made by a city or town under this chapter." Since this sentence is embodied in § 4A (which, as already stated, created a distinct statutory cause of action different from the statutory lien taken under old § 4), it is in my judgment applicable only to rights of enforcement of causes of action which have accrued under § 4A, not to rights of enforcement of liens that may have been taken under § 4. The reference to "this chapter" modifies only "payments made by a city or town," and does not modify "causes of action." The latter term thus cannot be regarded as including causes of action under the lien provisions of old § 4. To summarize then, my conclusions to this point, I answer your first question by stating that the liens are still enforceable only if a petition or bill in equity for enforcement had been filed in court before July 1, 1968. I answer your second question by stating that the procedure for enforcement is governed by G.L. c. 1 18A, § 4 as it stood just prior to St. 1967, c. 658. The Commonwealth should by motion, however, be substituted as the plaintiff in each case. I now turn to your third question in which you ask: "If the answer to question number 1 is in the negative, how may such liens be released in order to clear the title?" In view of my answer to question 1 , I will construe your third question as concerned only with those liens as to which no judicial proceedings for enforcement had been begun prior to July 1, 1968. Under G.L. c. 1 18A, § 4 as it stood prior to July 1, 1968, the only provision for release of liens was that "Upon reimbursement for the amount due under the terms of [the] lien, the town through its appropriate official shall execute and deliver a satisfaction thereof, and upon it being filed, the lien shall be dissolved as of the date of such filing." Although not expressly stated, it would also appear that a town official could release a lien upon the existence of circumstances, described in old § 4, such as when a deceased welfare recipient's interest in real estate together with the cash surrender value of certain insurance 70 P.D. 12 policies did not exceed $1500. Determination of the identity of the "appropri- ate official" of a municipality to release a lien under old § 4 would depend on an examination of the internal structure of particular cities and towns. You state, however, that the releases were signed by "the local board of public welfare or a person designated by such board." Authority to sign such releases was, in my judgment, transferred to the Department of Public Welfare, to be exercised by an appropriate official thereof, by virtue of St. 1967, c. 685, § 79, which provides in pertinent part: "All powers and duties exercised by [municipal] boards and offices [of public welfare] are hereby transferred to the state department of public welfare." Determination of the state official or employee who may now sign such a release is a matter within the authority of the Commissioner of Public Welfare. G.L. c. 18, § 3. I trust that the foregoing answers your questions 3 and 4. In the light of my answer to question 4, question 5 does not require an answer. Very truly yours, ELLIOT L. RICHARDSON Attorney General