ROBERT CANTELL & others [Note 1] vs. COMMISSIONER OF CORRECTION & others. [Note 2]

MILKEY, J. The plaintiffs are inmates at various State prison facilities who for a time had been held in segregated confinement in so-called "special management units" (SMUs). [Note 3] They brought

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this action seeking declaratory and injunctive relief against the Commissioner and other officials of the Department of Correction (collectively, the DOC). The plaintiffs' amended complaint alleged that they, and other inmates similarly situated, cannot be segregated in SMUs without being afforded certain substantive and procedural protections. Their claims were identical to ones raised by the inmate in LaChance v. Commissioner of Correction, 463 Mass. 767 , 774-777 (2012). [Note 4] Thus, for example, like that inmate, the plaintiffs claimed inter alia that the conditions they faced in the SMUs were as onerous as those faced in so-called "departmental segregation units" (DSUs), [Note 5] and that therefore the DOC was bound to extend to them the benefit of existing regulations governing confinement in the DSUs. Once the Supreme Judicial Court issued its opinion in LaChance, a Superior Court judge dismissed this action without prejudice to the plaintiffs' filing a new complaint alleging "that [the] DOC is failing to properly comply with LaChance." [Note 6] For the reasons set forth below, we dismiss this appeal from the judgment as moot.

Framing the mootness question. As an initial matter, we note that it is uncontested that the plaintiffs are no longer held in segregated confinement in SMUs. [Note 7] Accordingly, to the extent that their case seeks to assert their own rights, it is moot. See Littles v. Commissioner of Correction, 444 Mass. 871 , 872 n.3 (2005). However, a moot case nevertheless can be heard if it presents an issue "of public importance, capable of repetition, yet evading review." Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271 , 274 (1978). [Note 8] As the dissent accurately points out, this long-recognized exception to the mootness doctrine has

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particular application to litigation involving inmate rights given the often ephemeral nature of the alleged improprieties being challenged. See, e.g., Commissioner of Correction v. Myers, 379 Mass. 255 , 260-261 (1979); Abdul-Alázim v. Superintendent, Mass. Correctional Inst., Cedar Junction, 56 Mass. App. Ct. 449 , 452 n.6 (2002). However, whether an appellate court should proceed to address an appeal that has become moot remains a matter of discretion. Lockhart v. Attorney Gen., 390 Mass. 780 , 782-783 (1984). See Blake v. Massachusetts Parole Bd., 369 Mass. 701 , 708 (1976). As explained below, in the wake of LaChance and the pending regulatory proceeding that LaChance spawned, we conclude that addressing the underlying substantive issues that the plaintiffs seek to raise would be improvident at this time.

The LaChance ruling. In LaChance, a Superior Court judge ruled on summary judgment that prison officials had violated an inmate's Federal and State due process rights by holding him in an SMU for over ten months without a hearing in which he could seek to challenge his segregated confinement. 463 Mass. at 772-773. With regard to the inmate's claims for monetary damages pursuant to 42 U.S.C. § 1983 against the officials in their individual capacities, the judge ruled that the officials were not entitled to qualified immunity, because -- in the judge's view -- the inmate's due process rights clearly had been established by existing precedent. LaChance, supra at 773. On the officials' interlocutory appeal of the denial of their motion to dismiss the § 1983 claims, id. at 768 & n.3, the Supreme Judicial Court held that the officials were entitled to qualified immunity, id. at 777-778.

At the same time, the LaChance court affirmed the judge's ruling that the officials had violated the inmate's due process rights. In the key paragraph, the court stated as follows:

"We conclude that an inmate confined to administrative

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segregation on awaiting action status, whether such confinement occurs in an area designated as an SMU, a DSU, or otherwise, is entitled, as a matter of due process, to notice of the basis on which he is so detained; a hearing at which he may contest the asserted rationale for his confinement; and a posthearing written notice explaining the reviewing authority's classification decision. The appropriate time frame for such actions must balance the inmate's interest -- to challenge potentially arbitrary detention in severe conditions -- with that of prison officials -- to secure the reclassification or transfer of an inmate who poses a threat to himself, to fellow inmates, or to the security of the facility. Although we leave it to the DOC to promulgate regulations that reflect the balance of these interests, we conclude that in no circumstances may an inmate be held in segregated confinement on awaiting action status for longer than ninety days without a hearing."

LaChance, 463 Mass. at 776-777. Thus, while broadly sketching out the due process rights that the DOC had to provide to inmates who were held in an SMU on "awaiting action" status, the court otherwise left it to the DOC to promulgate new regulations to balance the competing interests at stake. The court took that approach even though it recognized that "the conditions of LaChance's confinement in the SMU were, as the judge found, essentially equivalent to those in the system's designated DSUs, and in some respects even more restrictive." Id. at 774.

The import of LaChance for the instant case. The LaChance court made clear that its holding was not limited to the inmate in that case but instead applied to all "inmate[s] confined to administrative segregation on awaiting action status." Id. at 776. Consequently, the DOC recognizes that, going forward, it is bound to provide all such inmates the due process rights recognized in LaChance. [Note 9] In a January, 2013, status report requested by the motion judge, the DOC reported that it had begun the process of promulgating the new regulations required by LaChance, and that it would commence providing hearings to inmates confined in an SMU even before the new regulations were finalized.

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The plaintiffs argue that LaChance itself did not fully resolve the legal issues they raised in their amended complaint and that the completion of the pending regulatory process will not address the issues that remain open. Specifically, the plaintiffs contend that because the conditions of segregated confinement in an SMU are equivalent to those in a DSU, [Note 10] then -- regardless of what the new regulations mandated by LaChance ultimately will say -- DOC is bound to apply its existing DSU regulations to all inmates segregated in an SMU for more than a brief period (including those held on awaiting action status). [Note 11] They acknowledge that LaChance implicitly forecloses a claim that Federal due process requires that result. However, relying on Haverty v. Commissioner of Correction, 437 Mass. 737 (2002), and other cases cited with approval in LaChance, 463 Mass. at 774-775, the plaintiffs claim that full compliance with the DSU regulations is independently required either by the State Constitution or by the regulations themselves. [Note 12] The plaintiffs additionally maintain that a two-decade old injunction issued by a single justice of the Supreme

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Judicial Court prohibits the DOC from amending the DSU regulations to make them less protective. See Haverty, supra at 758 & n.26 (referencing the injunction). Therefore, according to the plaintiffs, the judge could not dismiss their case based on LaChance. Instead, they contend, she first should have allowed them to put on their proof that the conditions of SMU confinement are as restrictive as those in the DSUs, and ultimately should have entered judgment requiring the DOC to comply with its DSU regulations as to all inmates held in segregated confinement in SMUs (including those on awaiting action status).

The DOC counters that even if older case law could be read along the lines that the plaintiffs suggest, [Note 13] LaChance marks an implicit departure from that precedent. According to the DOC, it would make no sense for the Supreme Judicial Court to have directed it to go through the process of promulgating a new set of regulations if case law already made it clear that the agency was bound to apply its existing DSU regulations. [Note 14] With regard to the plaintiffs' claim that the single justice's 1995 injunction continues to limit its ability to modify its regulations, the DOC notes that the full court directed it to issue the new regulations while providing guidance on what due process minimally requires. The DOC also highlights that there is no lawful basis for a court to prohibit it from amending its regulations as it deems appropriate, except to the extent that the agency is constrained by statutory or constitutional limitations. See Judge Rotenberg Educ. Center, Inc. v. Commissioner of the Dept. of Mental Retardation (No. 1), 424 Mass. 430 , 466 (1997) ("[T]he judiciary lacks the authority to order a State agency to do anything that it is not required to do

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as a matter of law"), citing Attorney Gen. v. Sheriff of Suffolk County, 394 Mass. 624 , 629-630 (1985).

As this debate between the parties suggests, there is some unresolved tension in the case law. The question is whether we should try to resolve that tension at this time in the current litigation -- now moot as to all named plaintiffs -- under the circumstances presented. We conclude that it would be improvident to do so. Although LaChance may not directly have resolved all the issues the plaintiffs seek to raise, it set in motion a regulatory process that will help frame any unresolved questions. Once the regulations mandated by LaChance have been issued and applied, any remaining claims about what additional process is due, if any, properly can be assessed based on "concrete fact situation[s]." Entergy Nuclear Generation Co. v. Department of Envtl. Protection, 459 Mass. 319 , 326 (2011), quoting from Hadley v. Amherst, 372 Mass. 46 , 52 (1977). In that manner, judicial review can take place in a far more appropriate setting than the abstract one presented by what remains of the current case. See Hadley, 372 Mass. at 52 (noting that "[i]n the absence of a concrete fact situation, any ruling as to the extent of the power granted [to a governmental entity by the relevant statute] is likely to be either too narrow or too broad"). In this regard, we note that an inmate's assignment to an SMU can occur in a broad array of circumstances, and the specific process that an inmate may be due may vary somewhat with those particular circumstances. Deferring consideration of the questions the plaintiffs seek to raise until the DOC has drafted and begun to apply its regulations will help allow informed review of such considerations. Although courts eventually may need to address the issues the plaintiffs seek to raise (assuming they are unsatisfied by the forthcoming regulations), consideration of such issues now would be premature. See Massachusetts Med. Soc. v. Commissioner of Ins., 402 Mass. 44 , 48-49 (1988) ("The better policy is to allow the administrative process to run its course before permitting appellate review, thereby granting the administrative agency a sufficient opportunity to apply its expertise to develop regulations in conformity with the statutory scheme").

For these reasons, we dismiss the appeal.

Appeal dismissed.

RUBIN, J. (dissenting). I disagree with the majority's novel

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conclusion that we may refuse in our "discretion" to hear a case over which we have jurisdiction.

Mootness is an "aspect[] of justiciability." O'Brien's Case, 424 Mass. 16 , 18 (1996). If a case is moot, there is a "jurisdictional defect." Ibid. Unlike Federal courts, however, our Supreme Judicial Court has concluded it has discretion to hear and decide moot cases when it serves the public interest. "In . . . circumstances where some of the usual aspects of justiciability are missing -- particularly where the case was moot as to the parties before the court -- we have proceeded to render an opinion, if a question of general importance was presented which required resolution and if the jurisdictional defect would not interfere with or confuse that resolution." Ibid. In the case on which the majority would rely, Lockhart v. Attorney Gen., 390 Mass. 780 , 782-783 (1984), the Supreme Judicial Court articulated this rule and, unremarkably, declined to hear and decide a moot case, id. at 784-785.

This case, however, is not moot, and there is no opinion holding that when a case is as a matter of law not moot, we have discretion not to hear it. Rather, individuals with a claim of aggrievement over which a court has jurisdiction are entitled to know and be granted their rights, whatever they might be. Courts have a "virtually unflagging obligation . . . to exercise the jurisdiction given them." Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976).

This suit was brought as a putative class action. The allegedly wrongful conduct continues with respect to members of the putative class, even though it has ended with respect to the named plaintiffs. In these circumstances, "[i]f the underlying controversy continues, a court will not allow a defendant's voluntary cessation of his allegedly wrongful conduct with respect to named plaintiffs to moot the case for the entire plaintiff class." Wolf v. Commissioner of Pub. Welfare, 367 Mass. 293 , 299 (1975). Rather, the case will be held not to be moot. Id. at 297. This determination is a question of law, not, as the majority now holds, one of determining whether it would be "improvident" or not to hear the case. Indeed, in Wolf itself, the trial court that had held the case moot was reversed for legal error, with no suggestion that it had discretion not to hear the case. See id. at 300. See also, e.g., State Tax Commn. v. Assessors of Haverhill, 331 Mass. 306 , 308

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(1954) (mootness is a "matter of law"). [Note Rubin-1]

Nor, I should point out, is there any prudential reason to wait for the regulations mandated by LaChance v. Commissioner of Correction, 463 Mass. 767 , 777 (2012) –- which remain unissued years after that decision –- to decide this case. LaChance says that due process requires, among other things, a hearing within ninety days for inmates confined to administrative segregation on awaiting action status. Ibid. The plaintiffs contend that they are entitled to the more stringent regulatory protections provided for those held in departmental segregation units (DSUs) -– including a hearing within fifteen days. Whatever the precise terms of the new regulations, they will not eliminate this disparity, and there is no reason to make those held in these conditions wait for an adjudication of their rights.

The judgment below therefore must rise or fall on its merits, and it is to those I turn.

Those inmates before us on awaiting action status were not automatically placed because of that status in special management units (SMUs), units whose conditions, including solitary confinement in cells twenty-three hours per day, are "substantially similar" (LaChance, supra at 774) to the extremely harsh conditions in DSUs. Rather, they were placed in SMUs only upon a determination by a prison official that their "continued presence . . . in the general population would pose a serious threat to life, property, self, staff or other inmates, or to the security or orderly running of the institution." 103 Code Mass. Regs. § 423.06 (2007) (explaining when administrative segregation is permitted). They were placed in SMUs only because they were deemed to warrant administrative segregation because of a threat to safety and security. Before this placement, however, they were not afforded the detailed procedures required by 103 Code Mass. Regs. §§ 421.00 for placement in a DSU. Those regulations require a hearing before an impartial board, 103 Code Mass. Regs. § 421.12, at which there must be "substantial evidence" that an inmate poses "a substantial threat" to either "to the safety of others; or . . . of damaging or destroying property; or . . . to the operation of a state correctional facility." 103 Code Mass. Regs. § 421.09 (1994).

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In Haverty v. Commissioner of Correction, 437 Mass. 737 , 763, 764 n.36 (2002), the Supreme Judicial Court said that as a matter of interpretation of the regulations, the procedural safeguards detailed in 103 Code Mass. Regs. §§ 421.00 "must be afforded to all prisoners before they are housed in DSU-like conditions" except for those prisoners "whose stay . . . is intended to be, and is, brief," meaning "days, not weeks." The court reminded the Department of Correction (DOC) that "in 1995 the commissioner attempted to repeal the DSU regulations, but his attempt to do so was enjoined by a single justice of this court. The commissioner did not appeal from the order of the single justice, nor does the record reflect that he has made any subsequent attempt to modify or repeal the regulations." Id. at 758 (footnote omitted). Absent a court order to the contrary, these regulations thus "have the full force of law." Ibid. This has not changed since then, and because Haverty remains good law, the prisoners in this case are entitled to the protections of those regulations as a matter of State law.

The DOC essentially argues that LaChance, 463 Mass. at 774-775, overruled Haverty, supra, and means that these prisoners are entitled only to what LaChance commanded, and no more. The language of the LaChance opinion, robust with favorable citation to Haverty and to Hoffer v. Commissioner of Correction, 412 Mass. 450 (1992), certainly does not appear to have been intended to weaken the procedural protections for prisoners like these. In fact, the LaChance court reiterated that its prior decisions stated that (1) "under DOC regulations, indefinite confinement in any unit where conditions are substantially similar to those of a DSU entitles an inmate to the protections afforded by the DSU regulations," and (2) "the protections afforded by the DSU regulations are mandated by due process considerations." LaChance, 463 Mass. at 774-775, citing Hoffer, supra at 455, and Haverty, supra at 762. As the majority observes, the court noted that these prior decisions were "not directly controlling" on the issue actually decided, LaChance, supra at 775. However, this disclaimer seems to strengthen the argument that LaChance did not overrule Haverty: the State-law issue decided in Haverty was different from the issue the court was addressing in LaChance, that of Federal due process in the context of 42 U.S.C. § 1983.

On the other hand, as the majority indicates, it can be argued that, if the Supreme Judicial Court in LaChance was ordering the promulgation of regulations only for prisoners in DSU-like

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conditions, it must have meant to overrule Haverty. If all the prisoners who would be entitled to the benefit of the regulations ordered by LaChance –- including primarily the requirement of a hearing within ninety days –- were already entitled under Haverty to the benefit of 103 Code Mass. Regs. §§ 421.00, which mandates a hearing within fifteen days, requiring the drafting of the new regulations would have been purposeless. Rather than having done something purposeless, the argument goes, the Supreme Judicial Court must have overruled Haverty sub silentio.

The flaw in this argument lies in its major premise. The procedures required by the court in LaChance are not only for those in conditions "substantially similar" to those in the system's designated DSUs. Rather, the court concluded as a matter of Federal due process that the procedures it described are required for "an inmate confined to administrative segregation on awaiting action status, whether such confinement occurs in an area designated as an SMU, a DSU, or otherwise." LaChance, 463 Mass. at 776. "Administrative segregation is a 'temporary form of segregation from general population used when the continued presence of the inmate in the general population would pose a serious threat to life, property, self, staff or other inmates, or to the security or orderly running of the institution.'" Id. at 769 n.4, quoting from 103 Code Mass. Regs. § 423.06 (2007). Nothing requires that those on administrative segregation be held in harsh conditions "substantially similar" to those in a DSU.

The court in LaChance said nothing about the question presented here: whether the subgroup of those held in administrative segregation on awaiting action status whose conditions of confinement are as harsh as those in DSUs are entitled as a matter of State law to the more stringent protections of 103 Code Mass. Regs. §§ 421.00. Under Haverty, the answer to that question is yes. But that does not render the LaChance regulations purposeless. The LaChance regulations still will articulate the protections required for those inmates held in administrative segregation in conditions which are not substantially as restrictive as those in a DSU, who are not entitled to the more robust protections of Haverty.

For these reasons, I would reverse the judgment of the trial court.