COMMONWEALTH & others [Note 1] vs. TOWN OF ANDOVER & others. [Note 2]

WILKINS, J. The assessors of each defendant municipality have submitted a plan to the Commissioner of Revenue (Commissioner) for the revaluation of that municipality's

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real property in order to comply with the constitutional and statutory duty to value that property proportionately and reasonably and at its full and fair cash value. See Part II, c. 1, Section 1, art. 4, of the Massachusetts Constitution; G. L. c. 59, Section 38; Tregor v. Assessors of Boston, 377 Mass. 602, 604 (1979); Sudbury v. Commissioner of Corps. & Taxation, 366 Mass. 558, 563 (1974), and cases cited. Cf. art. 10 of the Declaration of Rights. The Commissioner has indicated approval of the revaluation plan submitted by the assessors of each defendant. In each such municipality, however, no funds have been appropriated to carry out the plan as filed or to achieve appropriate revaluation in some other manner. See note 2 as to recent action in six defendant towns.

The Commonwealth seeks a determination that the Commissioner may contract with commercial appraisal firms to revalue the real estate in each noncomplying city and town and that the State Treasurer may deduct the cost of that contract from the amount of State aid that he would otherwise distribute to that municipality. We conclude that the Commissioner and the State Treasurer do not have the statutory authority to proceed as indicated without a court order authorizing that action, but that it is within the power of this court to order that various steps be taken to assure the proper valuation of real estate in accordance with constitutional and statutory mandates. No municipality may block the attainment of its constitutional and statutory obligation to achieve fair cash valuation by failing to appropriate funds necessary to achieve that goal. We order the entry of a judgment in conformity with our conclusions, and direct that a single justice of this court enter such orders with respect to each noncomplying municipality as, in his discretion, will assure the prompt and proper valuation of its real estate.

Before discussing our reasons for our conclusions on the fundamental issue in this case, we shall dispose of contentions of certain defendants who argue that this court cannot and should not order the entry of a judgment

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at this time. We do not pause to indicate which defendants have raised specific objections because, as we reject them all, the source of those objections is irrelevant.

The failure to join other municipalities. Certain defendants argue that the Commonwealth has unconstitutionally denied them equal protection of the laws by failing to include other municipalities as defendants. Specifically, they have challenged a single justice's allowance of the Commonwealth's motion for partial summary judgment on the issue of failure to join other municipalities as necessary parties. See Mass. R. Civ. P. 19, 365 Mass. 765 (1974). In the complaint, the Commonwealth alleged that there are additional cities and towns that "are in positions similar to those of the defendants but as to whom insufficient data [are] currently available to the Commissioner to warrant their joinder in this action." The complaint listed twenty-eight such municipalities but did not state the nature of the missing data.

The single justice properly allowed the Commonwealth's motion for partial summary judgment. The requirements for joinder, set forth in Mass. R. Civ. P. 19, are not met here. Joinder of additional parties is not necessary to accord complete relief among those already parties, and, as a practical matter, the ability of any other municipality to protect its interest in formulating and implementing its own revaluation plan will not be impaired by this action. Id.

In a related claim, certain defendants accuse the Commissioner of selective enforcement of the law and allege that such a course of action precludes the effective implementation of the Sudbury decision. None of the affidavits submitted in opposition to the Commonwealth's motion for partial summary judgment contains any statement of fact to support the allegation that the Commissioner is engaged in a discriminatory, selective enforcement of the law. On the contrary, the affidavit filed in behalf of the Commonwealth's motion demonstrates

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that the Commissioner is aggressively pursuing every municipality that has not fulfilled its obligation to revalue all its real property at full and fair cash value. The Commonwealth was not obliged to sue every noncomplying municipality in one action. Nor was it required to postpone suing any municipality until it could accumulate sufficient data to identify all the municipalities that had reached the same stalemate as the defendants. Such a restraint on the Commissioner's discretion would only delay final implementation of the Sudbury mandate.

Denial of leave to file a counterclaim late. The single justice did not exceed his discretion in denying the belated, dilatory motion for leave to file a counterclaim and the motion to transfer the case to the Superior Court, or to refer it to a special master, to consider the issues sought to be raised by the counterclaim. [Note 3] Mass. R. Civ. P. 13 (f), 365 Mass. 758 (1974). The single justice could have concluded that justice did not require the late filing of the counterclaim and that the failure to set up the counterclaim earlier was not a result of "oversight, inadvertence, or excusable neglect." Id. These motions were filed almost one year after the action was commenced. The Commonwealth had already filed a motion for summary judgment with supporting documents. The proposed counterclaim raised objections to the Commissioner's alleged failure (a) to take adequate steps to assure implementation and maintenance of fair and uniform revaluations, and (b) to approve or reject revaluation plans rationally. To the extent that these objections applied to the Commissioner's treatment of individual defendants, the alleged deficiencies would have been known

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to them for months prior to the filing of these motions. Deficiencies, if any, in the Commissioner's treatment of some other municipality cannot justify a failure of a defendant municipality to perform its duty. Moreover, the suggestion that the Commissioner had not taken adequate steps to permit municipalities to perform these obligations is belied by the fact that almost 300 cities and towns have complied with their valuation obligations or have plans to do so, approved by the Commissioner and appropriately funded. The fact that the Commonwealth might have done more to assist in the development of procedures for the formation and maintenance of adequate valuation plans cannot be a defense to this action. [Note 4]

The propriety of the report. After ruling that there was "no genuine issue as to material facts," a single justice reserved and reported the case to the full bench. By his report, he submitted to the full court the question whether interlocutory orders entered by single justices, and already discussed in this opinion, were proper, and whether his ruling that there was no genuine issue as to any material fact was correct. By reporting the case in its present posture he also referred to the full court the question of the appropriate disposition of the Commonwealth's motion for summary judgment, assuming the correctness of the interlocutory rulings.

The defendants argue that the single justice had no authority to report the issues presented by the Commonwealth's motion for summary judgment and that this court has no jurisdiction to hear and act on that motion. The defendants do not challenge the report of the interlocutory

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rulings. Such a report is expressly authorized by G. L. c. 231, Section 112. [Note 5]

The single justice properly reported the Commonwealth's motion for summary judgment to this court. Rule 64 of the Massachusetts Rules of Civil Procedure, 365 Mass. 831 (1974), provides "that a single justice of the Supreme Judicial Court may at any time reserve any question of law for consideration by the full court, and shall report so much of the case as is necessary for understanding the question reserved." Surely, the question whether the Commonwealth's motion for summary judgment should be allowed is a question of law.

The provisions of G. L. c. 231, Section 112, as appearing in St. 1973, c. 1114, Section 200, do not restrict the special right of a Justice of this court to report a question of law to the full bench. Section 112 was adopted as part of a comprehensive and cooperative endeavor to coordinate the rules of civil procedure adopted by this court with legislative enactments relating to judicial procedure. St. 1973, c. 1114. Thus, we do not read the provision in Section 112 that a single justice may report a case on his own motion without decision "after a finding of facts" as barring him from reporting a question of law pursuant to a rule of this court. Contrast Doe v. Doe, ante 202 (1979), where neither a statute nor a rule authorized a report from the Superior Court. [Note 6]

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No genuine issue as to material facts. We conclude that there is no genuine issue as to any material fact. Certain of the defendants contend that there is a dispute as to whether the Commissioner has approved their revaluation plans, whether their plans are suitable for implementation, and whether the Commissioner has the personnel to implementation, a program of contracting for the revaluation of their real property. The affidavits submitted by the defendants did not assert the nonexistence of an approved plan. There is no real dispute on the point.

The issues of fact that the defendants say are in contention are not issues of material fact. We can define the scope of the Commissioner's authority on the basis of plainly uncontested facts, and, on those same facts, we can give guidance to the single justice concerning appropriate future action. These uncontested facts are that plans were filed and approved but no funds have been appropriated to implement revaluation.

The authority of the Commissioner. The Commissioner has substantial authority and responsibilities as we indicated in Sudbury v. Commissioner of Corps. & Taxation, 366 Mass. 558 (1974), but the Commissioner has no statutory authority to contract with appraisal firms to value the real estate in the defendant cities and towns at their expense and without their consent. See G. L. c. 58, Sections 7A-7E, for circumstances in which a municipality may request that an assessment system be installed by the Commissioner at the municipality's expense. The Legislature has given local assessors the authority to make contracts for expert appraisal of taxable property. See G. L. c. 40, Section 4, twelfth par. We see no basis for implying authority in the Commissioner, who must convert whatever reports are received from an appraisal firm, or from their own investigations, into fair cash values and assessed

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valuations. They know the local situation and should be working with an appraisal firm or their own employees to achieve the appropriate result and to obtain an understanding of the process for effective future action.

The assessors must follow the lawful commands of the Commissioner. See Sudbury v. Commissioner of Corps. & Taxation, supra at 563-564. But the problem in this case exists not because the assessors have flouted the Commissioner's authority, but because each defendant municipality has failed to appropriate the funds necessary to carry out a program of revaluation. We were not concerned in the Sudbury case with the question of what should or could be done if a municipality failed to provide necessary funds. On this record, it is uncontested that each remaining defendant municipality has failed to assess its real property in accordance with law and with the directions of the Commissioner, and that, although attempts have been made to secure necessary funds, the appropriate legislative body in each city or town has refused to act favorably on the request. Unlike certain other situations involving State and local relations where the Legislature has required municipal action even in the absence of appropriation (see, e.g., Amherst-Pelham Regional School Comm. v. Department of Educ., 376 Mass. 480, 494-495 [1978] [special education services]; Board of Health of N. Adams v. Mayor of N. Adams, 368 Mass. 554, 564-568 [1975] [fluoridation of a public water supply]; Commonwealth v. Hudson, 315 Mass. 335, 339-341 [1943] [chlorination of a public water supply]), there exists here no explicit statutory direction to a municipality or its assessors to proceed without a local appropriation. Nor, as we have said, is there any statutory authority for the Commissioner to proceed with a valuation program at the expense of an offending municipality.

The relief to be granted. Although there is no express authority, in the absence of an appropriation, for a board of assessors or the Commissioner to incur obligations on

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behalf of a municipality, none of the defendants seriously contends that a city or town may effectively thwart its assessors and the Commissioner in their efforts to achieve a result that is required by the constitution and by statute. Certain defendants suggest that, although the Commissioner may not proceed to act on their behalf or at their expense, the local assessors should be able to proceed without local appropriation, on direction from the Commissioner, where the city council or town meeting has failed to respond to requests for funds. We accept this argument only where a court has entered an order authorizing the assessors to proceed accordingly. Indeed, in the absence of a court order authorizing the expenditure of a municipality's revenue, appraisal firms may well be reluctant to enter into and carry out their obligations in contracts with the local assessors. As a general principle, no municipal department may incur a liability in excess of the appropriation made for its use. G. L. c. 44, Section 31.

Under the court's general equity power, judgments may be fashioned to assure the completion of necessary revaluations. Bettigole v. Assessors of Springfield, 343 Mass. 223, 236-237 (1961). Cf. Commonwealth v. Hudson, supra. In particular instances, orders might be fashioned that would permit a city or town, if it wished, promptly to appropriate the funds necessary for a revaluation of its real property. The municipality would thus have the opportunity to determine the source from which appropriations would be met and to have a role in selecting the procedures to be followed in revaluing its real property. Any plan for revaluation must, however, be a reasonable one calling for final results in a timely manner. The Commissioner's views on the adequacy of any program of revaluation and her directions to local assessors will be entitled to great weight in determining what orders should be entered. Municipalities that have not performed their statutory and constitutional duties should not expect a sympathetic judicial reception. See Assessors of Lynn v. Shop-Lease Co., 364 Mass. 569, 572 (1974).

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If the local assessors and the local appropriating body do not respond promptly and fully, the single justice may conclude that more drastic relief is required, resulting in some loss of local control by the city or town and its officials. Thus, for example, the court might authorize the Commissioner to contract for revaluation services and direct that the cost of the contract be imposed on the city or town, perhaps by directing the State Treasurer to withhold funds otherwise distributable to the municipality (see G. L. c. 58, Section 20A; G. L. c. 59, Section 20).

We reluctantly reach the conclusion that there must be judicial participation in the process, because we see no reasonable alternative, in the absence of a legislative solution. [Note 7] The single justice shall consider the appropriate order to be entered as to each noncomplying defendant municipality, and may, in particular instances, sever the proceeding as to any municipality and transfer that portion of the case to a special master for further findings or to the Superior Court for further action.

A judgment shall be entered declaring that, in the absence of a court order, (a) the Commissioner of Revenue does not have authority to enter into a contract on behalf of any municipality, without its consent, to obtain a revaluation of its real estate, and (b) the State Treasurer does not have authority to withhold funds to pay the cost of such a contract. The case is remanded to the county court for further proceedings in accordance with this opinion, with the expectation that orders will be entered promptly and, as needed, from time to time, against any defendant municipality that has not undertaken to fund an appropriate program for the revaluation of its real estate as required by law.

So ordered.