Covell v. Department of Social Services

677 N.E.2d 1158, 42 Mass. App. Ct. 427, 1997 Mass. App. LEXIS 68
CourtMassachusetts Appeals Court
DecidedApril 3, 1997
DocketNo. 95-P-1740
StatusPublished
Cited by11 cases

This text of 677 N.E.2d 1158 (Covell v. Department of Social Services) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Covell v. Department of Social Services, 677 N.E.2d 1158, 42 Mass. App. Ct. 427, 1997 Mass. App. LEXIS 68 (Mass. Ct. App. 1997).

Opinion

Kaplan, J.

On October 12, 1993, Helen Voisin,1 then almost fourteen years old, told her mother and a “mandated reporter” that she had been abused by her stepfather, Wayne E. Covell, a year and a half earlier. At that time Helen’s mother had been disabled by her pregnancy from assisting her husband at his general store in Boumedale, and Helen, after school hours, was helping out. According to Helen, when the store closed Helen and Covell would sit together and watch television. On three or four occasions, Helen said, Covell fondled her breasts and put his hand down her pants.

Upon a G. L. c. 119, § 51 A, report of October 14, 1993, the Department of Social Services (DSS) detailed a social [428]*428worker as investigator to look into these allegations. See G. L. c. 119, § 5IB. The investigator interviewed Helen and Helen’s mother. The investigator also interviewed Covell. Covell denied the allegations and said that his occasional nonsexual embracing of Helen might have been exaggerated or misunderstood; he also suggested that his wife, with whom he was having difficulties, might have encouraged Helen’s allegations.2 On October 19, 1993, the investigator supported the § 51A report, finding reasonable cause to believe that Helen had been sexually abused. Thereupon Covell was listed on the department’s registry of alleged perpetrators, to remain for a period of seventy-five years.3

Notified of the investigator’s finding on December 13, 1993, Covell requested administrative review. The administrative hearing occurred on March 17, 1994, see 110 Code Mass. Regs. §§ 10.06(8)-(9) (1993). It evidently consisted of direct and cross questioning of Covell; neither Helen nor her mother was present. The hearing officer in a report of May 13, 1994, ruled against Covell.

The report was received by Covell on May 16, 1994. In response he commenced an action in Superior Court, Barnstable County, seeking judicial review of the departmental decision under the Administrative Procedure Act, G. L. c. 30A, § 14. His complaint was “entered” on the docket on June 17, 1994, and stamped “Filed June 17, 1994.”4 As its answer, the department submitted the administrative record. The judge, upon consideration of the record, entered a judgment on findings by the court on June 1, 1995, holding that the allegations of wrongdoing were supported by substantial evidence. See G. L. c. 30A, § 14(7)(e). Covell appealed to this court from the judgment.

The allegations against Covell had been reported to the district attorney of Barnstable County pursuant to G. L. c. 119, § 51(B)(4). Trial in District Court on three counts of [429]*429indecent assault and battery on a child under fourteen (G. L. c. 265, § 13B) took place on July 27-28, 1995. Helen and her mother testified for the Commonwealth, Covell for the defense. The jury of six acquitted.

In his brief as appellant in this court, Covell referred to the acquittal. Reacting to this fact, counsel for DSS wrote to Coveil’s counsel on April 30, 1996, “offering, on behalf of the agency, to reopen the administrative hearing so that your client may present evidence regarding his acquittal.” Following is the relevant passage of the letter:

“My main purpose in calling, however, was to discuss the representation in your brief that Mr. Covell was acquitted of the criminal charges after a trial at which the child testified. As a practitioner with many years of experience, you must know that that information, which was not presented to the agency at the administrative hearing (or to the superior court), is hot properly put before the Appeals Court in your brief. At the same time, as a lawyer with much experience in the Appeals Court, I know the information will be of interest to the Court and vety well may motivate the panel to remand the case to the agency for consideration of additional evidence regarding the acquittal. See, e.g. G. L. c. 30A, § 14(6). Accordingly, I am offering, on behalf of the agency, to reopen the administrative hearing so that your client may present evidence regarding his acquittal.”

Counsel for DSS added that meantime she was requesting an enlargement of time to file her brief.

Rather surprisingly, counsel for DSS a month later, on May 30, 1996, moved in this court to dismiss the appeal on jurisdictional grounds and stated that DSS would not file a brief on the merits. Apparently someone in DSS had been counting days. If one accepts that the Superior Court action was “commenced” by “filing such complaint . . . with such clerk” on June 17, then thirty-two days had passed after Cov-ell’s receipt of the final decision of the department, which [430]*430exceeded by two days the thirty days prescribed for starting such an action.5

On August 26, 1996, Coveil’s counsel wrote to DSS counsel “prior to filing in Court” (i.e., before filing his motion in this court to remand to the department under G. L. c. 30A, § 14[6]), asking that the department “reopen its Administrative Hearing so that Mr. Covell may present this additional evidence [the acquittal] to the Department.” The response of DSS counsel, September 12, 1996, was far from counsel’s sunny earlier offer to reopen the administrative hearing. Counsel said the Superior Court had acted without “subject matter jurisdiction” so there was no valid c. 30A, § 14, proceeding pending and the department could not accept additional evidence under § 14(6). But, said counsel, if the department were in a position to evaluate the information, “the ‘beyond a reasonable doubt’ standard employed in a criminal proceeding far exceeds the ‘reasonable cause to believe’ standard employed by the agency.” Subjoined was a gratuitous statement expounding the values of the registry.

Thus rebuffed, Covell on October 22, 1996, filed in this court an opposition to DSS’s motion to dismiss the appeal and a motion under § 14(6) to remand the matter to the department to receive additional evidence.

1. On the motion to dismiss the appeal in this court. Although Covell may not agree,6 we accept that the Superior Court action came two days late. DSS says the slip left the [431]*431Superior Court without “subject matter jurisdiction,” and this rendered nugatory all that followed including the judge’s decision and the appeal therefrom.

There was no failure of “subject matter jurisdiction” if that term is used with its basic and well recognized signification, as reflected in Restatement (Second) of Judgments § 11 (1982): “Subject Matter Jurisdiction. A judgment may properly be rendered against a party only if the court has authority to adjudicate the type of controversy involved in the action.” The first Restatement illustrated such lack of authority in a homely way: “[A] judgment rendered by a justice of the peace is void if under the law of the State such justices are not empowered to deal with the subject matter of the action; as, for example, where the action is one for tort and justices of the peace are given no power except in actions of contract.” Restatement of Judgments § 7 comment b (1942). Our case of an untimely complaint in a type of action committed to the Superior Court does not conform to the § 11 model.

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Cite This Page — Counsel Stack

Bluebook (online)
677 N.E.2d 1158, 42 Mass. App. Ct. 427, 1997 Mass. App. LEXIS 68, Counsel Stack Legal Research, https://law.counselstack.com/opinion/covell-v-department-of-social-services-massappct-1997.