13 Mass. App. Ct. 927

February 4, 1982

The defendant filed a motion under Mass.R.Crim.P. 30(a), 378 Mass. 900 (1979), for release from unlawful restraint, alleging that his sentence was illegal because he had not given written consent to a drug treatment order, as required by G. L. c. 123, Section 48, as amended by St. 1974, c. 827, Sections 18, 19. A judge denied the motion, and the defendant appealed. 1. The order of the judge that the defendant "be given all treatment now available for drug dependent persons at M.C.I., Walpole," which accompanied the imposed sentence of twelve to twenty years at that institution was not an order that required the written consent of the defendant under Section 48. At the time of sentencing the judge was aware that the only drug treatment programs at M.C.I., Walpole, were voluntary individual and group counselling programs that required an inmate's voluntary participation. Thus, a defendant could not be compelled against his wishes to participate in any drug treatment program. It is obvious to us that the "order" of the judge was directed to the personnel at M.C.I., Walpole, and required them to make available to the defendant any drug treatment programs then being conducted. Because these programs were voluntary, the defendant was not ordered to submit to any treatment. 2. If the written consent of the defendant was required but not obtained, it would render only the order directing treatment illegal and not the accompanying sentence itself. By enacting G. L. c. 123, Section 48, the Legislature obviously did not intend to make the propriety of a jail or prison sentence which includes an order for treatment turn on the defendant's consent to treatment.

The order denying the motion for release from unlawful restraint is affirmed.

So ordered.


13 Mass. App. Ct. 927

February 5, 1982

The plaintiff appeals from a judgment entered in the Superior Court on her action for declaratory relief under G. L. c. 231A. The plaintiff applied under G. L. c. 32, Section 95A, as amended through St. 1973, c. 347, to the town of Watertown (town) for an annuity available to widows and children of retired public officials and employees. This particular provision was not accepted by the town until after the death of

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the plaintiff's husband. The deceased was retired under G. L. c. 32, Section 85E(d), which mandates the retirement of policemen and firemen who attain the age of sixty-five. At the time the deceased retired, the statute contained no provision for the election of benefits for a surviving spouse. (A subsequent amendment to that provision, Section 85J, creating an option for survivor benefits, has never been accepted by the town.) During the twenty-two years of his retirement, the deceased received the full compensation permitted under that statutory provision. The deceased was also entitled to retire under G. L. c. 32, Sections 58, 58B, which prescribe alternative compensation plans, the latter providing for the payment of annuities to certain survivors of retired veterans. The town denied the plaintiff's application for an annuity, taking the position that the legislative intent of Section 95A is to authorize cities and towns to pay such annuities only where a retiree had no statutory option to elect such benefits under any available noncontributory retirement law. The trial judge adopted this view and ruled that the plaintiff was ineligible for annuity payments under Section 95A. We disagree.

"The general and familiar rule is that a statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated." Industrial Fin. Corp. v. State Tax Commn., 367 Mass. 360, 364 (1975), quoting from Hanlon v. Rollins, 286 Mass. 444, 447 (1934). The relevant portion of Section 95A states that annuities may be paid to beneficiaries of "any official or employee who was retired . . . under the provisions of any noncontributory retirement law . . . and who had no rights under any such law to elect that benefits thereunder be paid to a survivor . . ." (emphasis supplied). We think that the meaning and intent of the statute are quite clear. First, the inclusion of the word "such" must necessarily refer back to the particular section under which the employee is retired. Were it otherwise, the Legislature would have inserted in the statute an explicit provision to that effect. Compare G. L. c. 32, Section 95, inserted by St. 1953, c. 387, which extends a right of election to all pensioners not entitled to retire under "any general or special law." We thus reject the town's contention that "`[a]ny such law' substitutes for `any noncontributory retirement law' in the statute" and thus means "any retirement law under which the retiree could have retired." Likewise, we reject the town's implicit notion that the word "such" is unnecessary and is not to be considered in interpreting the statute. Our view is consistent with the canon that "[n]o portion of the statutory language may be deemed superfluous." Commonwealth v. Gove, 366 Mass. 351, 354 (1974). Further, this interpretation supports the obvious intent of the statute to provide survivor rights to annuitants where none previously existed, thereby adding uniformity within the

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statutes affecting retirement law. The right created is retroactive where a retiree, as in this case, is retired under a noncontributory retirement law and predeceases the effective date of the act. See St. 1958, c. 559, Section 3. See also Moynihan v. Arlington, 6 Mass. App. Ct. 960 (1978).

We find no basis to go beyond the clear wording of the statute and, accordingly, we give the word "such" its usual meaning. The judgment is reversed, and a new judgment is to be entered declaring that the plaintiff is entitled to annuity payments in accordance with the provisions of Section 95A. See Moynihan v. Arlington, supra.

Deciding as we do, we need not consider the Contributory Retirement Appeal Board's contention that it had no jurisdiction to hear an appeal with respect to the denial of benefits by the town.

So ordered.