On September 13, 2023 a
Reply/Sur-reply to respondent/appellee's opposition to motion to amend administrative record Applies To: Sullivan, Keating & Moran Insurance Agency, Inc. (Plaintiff)
was filed
involving a dispute between
Sullivan, Keating & Moran Insurance Agency, Inc.,
and
Massachusetts Commission Against Discrimination,
for Administrative Civil Actions
in the District Court of Hampden County.
Preview
Date Filed 1/22/2024 3:22 PM
Superior Court - Hampden.
Docket Number 2379CV00459
COMMONWEALTH OF MASSACHUSETTS
Hampden, ss SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
CIVIL ACTION NO. 2379CV0459
SULLIVAN, KEATING & MORAN
INSURANCE AGENCY, INC.
Petitioner/Appellant,
01/22/2024
Vv.
MASSACHUSETTS COMMISSION
AGAINST DISCRIMINATION,
Respondent/Appellee.
PETITIONER/APPELLANT’S REPLY TO RESPONDENT/APPELLEE’S
OPPOSITION TO MOTION TO AMEND ADMINISTRATIVE RECORD
Petitioner/Appellant (“Petitioner”) moved to supplement the record to include
the MCAD’s findings of Probable Cause, which it had already partially referenced in
its brief to the Full Commission (R. 387.) As set out in the Petitioner’s Brief in
Support of Its Motion for Judgment on the Pleadings, the Complainant, Leo
Roberge’s, accommodation claim had been excluded as untimely under the Probable
Cause Finding and never certified for hearing. Even though the specific finding at
issue was cited to the Full Commission, Petitioner believed the entire finding would
therefore be appropriate to include when he realized that it was missing from the
record.
11.2
Date Filed 1/22/2024 3:22 PM
Superior Court - Hampden.
Docket Number 2379CV00459
Respondent/Appellee (“Respondent”) now opposes this motion on grounds
that the document was not “admitted as evidence” at the MCAD hearing and “is not
part of the Administrative Record”. Both arguments are wrong.
The Probable Cause Finding is not an item of “evidence” to be introduced at a
hearing or after. It is no more “evidence” than a Court’s ruling on a Motion for
Summary Judgment (or any pretrial ruling) would be “evidence” introduced at a
trial. While there might be circumstances where such a document might be evidence
in some other proceeding, there is no reason why the Commission could not or
should not take administrative notice of a ruling in its own record on the case, just
as a judge in a civil case would notice their own pre-trial rulings. See 804 C.M.R.
1.21(12)(MCAD procedural rules in effect at the time of the hearing and the Full
Commission review petition, (Ex. 1 to Petitioner’s Brief.) Notably, the Full
Commission Decision makes no reference at all to the Probable Cause Finding not
being a part of the record. It rejected the Petitioner's argument for other reasons.
(R. 450-454.) Indeed, given that this “evidence” issue was not raised before the Full
Commission, it is the Respondent who is prohibited from raising it now. M.G.L.c.
151b, § 6 (‘no objection that has not been argued before the Commission shall be
considered by the Court.)
Respondent also argues that the Probable Cause Finding “is not part of the
Administrative Record in this proceeding”. (Respondent’s Opposition, p. 2.)
Respondent cites 804 C.M.R. 1.23(8) which provides: “The petition for review shall
be confined to the record presented at the public hearing.” This is deceptive. The
Date Filed 1/22/2024 3:22 PM
Superior Court - Hampden.
Docket Number 2379CV00459
Respondent is citing the CMR which is in effect now, but not the CMR that was in
effect at the time of both the hearing and the petition for full commission review.!
The rule in effect at the time was 804 C.M.R. 1.23(f) which provided:
“f) Record of Review. The review petition shall be confined to the record.”
Here, there is no restriction of the record “presented at the public hearing”.
The statutory definition of the Administrative Record would include the Probable
Cause Finding. M.G.L.c. 30A, §14(4) provides:
(4) The agency shall, by way of answer, file in the court the original or a
certified copy of the record of the proceeding under review. The record shall
consist of (a) the entire proceedings, or (b) such portions thereof as the agency
and the parties may stipulate, or (c) a statement of the case agreed to by the
agency and the parties. The expense of preparing the record may be assessed
as part of the costs in the case, and the court may, regardless of the outcome
of the case, assess any one unreasonably refusing to stipulate to limit the
record, for the additional expenses of preparation caused by such refusal. The
court may require or permit subsequent corrections or additions to the record
when deemed desirable.
This definition which included the “entire proceedings” is exactly the
language in Superior Court Standing Order 1-96(2).
Consequently, the Probable Cause Finding is appropriate for inclusion in the
record and for consideration by the Superior Court.
! This hardly seems accidental. The Full Commission decision is replete with references to the procedural rules in
effect at the time of the hearing and the time of petition for review. (R. 450-454.)
3
Date Filed 1/22/2024 3:22 PM
Superior Court - Hampden.
Docket Number 2379CV00459
Respectfully submitted,
For The Petitioner/Appellant, Sullivan
Keating & Moran Insurance Agency, Inc.
By Its Attorney,
/s/ Maurice M. Cahillane
Maurice M. Cahillane, Esq., BBO#069660
EGAN, FLANAGAN AND COHEN, P.C.
67 Market Street - PO Box 9035
Springfield, MA 01102-9035
Tel: 413-737-0260; Fax: 413-737-0121
mmc@efclaw.com
CERTIFICATE OF SERVICE
I, Maurice M. Cahillane, hereby certify that I served the Petitioner/
Appellant’s Reply to Respondent/Appellee’s Opposition to Petitioner/Appellant’s
Motion to Amend Administrative Record on counsel for the Respondent MCAD by
delivering a true copy by electronic mail to:
Ethan C. Crawford, Esq.
ethan.crawford@mass.gov
One Ashburton Place, Room 601
Boston, MA 02108.
Dated: January 22, 2024 /s/ Maurice M. Cahillane
Maurice M. Cahillane
0881-150302\517638
Document Filed Date
January 22, 2024
Case Filing Date
September 13, 2023
Category
Administrative Civil Actions
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Date Filed 1/22/2024 3:22 PM Superior Court - Hampden. Docket Number 2379CV00459 COMMONWEALTH OF MASSACHUSETTS Hampden, ss SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT CIVIL ACTION NO. 2379CV0459 SULLIVAN, KEATING & MORAN INSURANCE AGENCY, INC. Petitioner/Appellant, 01/22/2024 Vv. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION, Respondent/Appellee. PETITIONER/APPELLANT’S REPLY TO RESPONDENT/APPELLEE’S OPPOSITION TO MOTION TO AMEND ADMINISTRATIVE RECORD Petitioner/Appellant (“Petitioner”) moved to supplement the record to include the MCAD’s findings of Probable Cause, which it had already partially referenced in its brief to the Full Commission (R. 387.) As set out in the Petitioner’s Brief in Support of Its Motion for Judgment on the Pleadings, the Complainant, Leo Roberge’s, accommodation claim had been excluded as untimely under the Probable Cause Finding and never certified for hearing. Even though the specific finding at issue was cited to the Full Commission, Petitioner believed the entire finding would therefore be appropriate to include when he realized that it was missing from the record. 11.2 Date Filed 1/22/2024 3:22 PM Superior Court - Hampden. Docket Number 2379CV00459 Respondent/Appellee (“Respondent”) now opposes this motion on grounds that the document was not “admitted as evidence” at the MCAD hearing and “is not part of the Administrative Record”. Both arguments are wrong. The Probable Cause Finding is not an item of “evidence” to be introduced at a hearing or after. It is no more “evidence” than a Court’s ruling on a Motion for Summary Judgment (or any pretrial ruling) would be “evidence” introduced at a trial. While there might be circumstances where such a document might be evidence in some other proceeding, there is no reason why the Commission could not or should not take administrative notice of a ruling in its own record on the case, just as a judge in a civil case would notice their own pre-trial rulings. See 804 C.M.R. 1.21(12)(MCAD procedural rules in effect at the time of the hearing and the Full Commission review petition, (Ex. 1 to Petitioner’s Brief.) Notably, the Full Commission Decision makes no reference at all to the Probable Cause Finding not being a part of the record. It rejected the Petitioner's argument for other reasons. (R. 450-454.) Indeed, given that this “evidence” issue was not raised before the Full Commission, it is the Respondent who is prohibited from raising it now. M.G.L.c. 151b, § 6 (‘no objection that has not been argued before the Commission shall be considered by the Court.) Respondent also argues that the Probable Cause Finding “is not part of the Administrative Record in this proceeding”. (Respondent’s Opposition, p. 2.) Respondent cites 804 C.M.R. 1.23(8) which provides: “The petition for review shall be confined to the record presented at the public hearing.” This is deceptive. The Date Filed 1/22/2024 3:22 PM Superior Court - Hampden. Docket Number 2379CV00459 Respondent is citing the CMR which is in effect now, but not the CMR that was in effect at the time of both the hearing and the petition for full commission review.! The rule in effect at the time was 804 C.M.R. 1.23(f) which provided: “f) Record of Review. The review petition shall be confined to the record.” Here, there is no restriction of the record “presented at the public hearing”. The statutory definition of the Administrative Record would include the Probable Cause Finding. M.G.L.c. 30A, §14(4) provides: (4) The agency shall, by way of answer, file in the court the original or a certified copy of the record of the proceeding under review. The record shall consist of (a) the entire proceedings, or (b) such portions thereof as the agency and the parties may stipulate, or (c) a statement of the case agreed to by the agency and the parties. The expense of preparing the record may be assessed as part of the costs in the case, and the court may, regardless of the outcome of the case, assess any one unreasonably refusing to stipulate to limit the record, for the additional expenses of preparation caused by such refusal. The court may require or permit subsequent corrections or additions to the record when deemed desirable. This definition which included the “entire proceedings” is exactly the language in Superior Court Standing Order 1-96(2). Consequently, the Probable Cause Finding is appropriate for inclusion in the record and for consideration by the Superior Court. ! This hardly seems accidental. The Full Commission decision is replete with references to the procedural rules in effect at the time of the hearing and the time of petition for review. (R. 450-454.) 3 Date Filed 1/22/2024 3:22 PM Superior Court - Hampden. Docket Number 2379CV00459 Respectfully submitted, For The Petitioner/Appellant, Sullivan Keating & Moran Insurance Agency, Inc. By Its Attorney, /s/ Maurice M. Cahillane Maurice M. Cahillane, Esq., BBO#069660 EGAN, FLANAGAN AND COHEN, P.C. 67 Market Street - PO Box 9035 Springfield, MA 01102-9035 Tel: 413-737-0260; Fax: 413-737-0121 mmc@efclaw.com CERTIFICATE OF SERVICE I, Maurice M. Cahillane, hereby certify that I served the Petitioner/ Appellant’s Reply to Respondent/Appellee’s Opposition to Petitioner/Appellant’s Motion to Amend Administrative Record on counsel for the Respondent MCAD by delivering a true copy by electronic mail to: Ethan C. Crawford, Esq. ethan.crawford@mass.gov One Ashburton Place, Room 601 Boston, MA 02108. Dated: January 22, 2024 /s/ Maurice M. Cahillane Maurice M. Cahillane 0881-150302\517638