Opinion
11-P-344
12-05-2011
GEORGE AHMED & others v. CITY OF SALEM & another.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 2006, defendant city of Salem (city) enacted an ordinance that imposed a charge for curb-side pick-up of trash at businesses and investor-owned, nonowner-occupied residential units. The plaintiffs challenge this charge on two grounds. First, they argue that it is an illegal 'tax' (and not a 'fee' as the city claims). Second, they argue that the charge is no longer in effect, because of language in the ordinance that they characterize as a 'sunset provision.' See Black's Law Dictionary 1574 (9th ed. 2009) (defining a 'sunset law' as '[a] statute under which a governmental agency or program automatically terminates at the end of a fixed period unless it is formally renewed'). A Superior Court judge rejected both arguments and ruled in the city's favor on summary judgment. We affirm.
Tax vs. fee. The Supreme Judicial Court has identified a now familiar three-factor test for determining whether a charge is a 'fee' or a 'tax.' See Emerson College v. Boston, 391 Mass. 415, 424-425 (1984). Applying the requisite factors, the judge below provided a thoughtful and persuasive analysis as to why the charge here is a fee. We come to the same conclusion, based essentially on the same analysis. In short, the charge here is for a specific service that the city provides, that service primarily benefits those who receive it, those subject to the charge can voluntarily opt out, and the plaintiffs have not shown that the amount of the charge is disproportionate to the city's cost in providing the service. We also note that the Legislature has specifically authorized cities and towns to charge fees for services 'as relate to the collection or disposal of solid waste.' G. L. c. 44, § 28C(f). The charge imposed by the city is plainly not an illegal tax.
To be sure, the plaintiffs can point to some individual considerations that provide some support for the charge being classified as a 'tax' (such as the fact that members of the general public receive some indirect benefit from the trash being removed from those properties subject to the charge). However, none of these considerations (individually or collectively) tips the scales in the plaintiffs' favor.
Sunset provision. The plaintiffs point to language in the ordinance that states: 'This Ordinance is to be returned to the City Council on or before June 1, 2007 to be formerly [sic] revisited and for re-ratification.' Based on this language, the plaintiffs argue that the ordinance was automatically to expire unless reenacted by June 1, 2007. Because the city council did not reenact the ordinance by that date (or otherwise), the plaintiffs maintain that it has automatically expired. Under this theory, the expiration of the ordinance did not violate the statutory mandate that '[n]o ordinance be amended or repealed except by an ordinance adopted in accordance with this chapter,' G. L. c. 43, § 21, because the ordinance was not 'amended or repealed' by subsequent action; it simply expired under its original terms.
This language did not appear in the original bill proposed by the mayor; it was added later in the legislative process.
In fact, the council eventually voted in favor of repealing the fee, but the mayor vetoed the repeal.
That edict is also set forth in the city's charter.
We disagree with the plaintiffs' characterization of the quoted language as a true sunset provision. Certainly, this language evinces an intent that the matter be brought back before the council in a particular time frame so that it could be reconsidered. Whether the council intended anything beyond that is somewhat opaque, and neither side can point to any preenactment legislative history that sheds light on this. However, whatever the language's precise intent, we do not believe that it reasonably can be interpreted as effecting automatic termination of the ordinance on July 1, 2007, if the council had not reenacted it by then. Under the provision's plain language, the only specific thing that had to occur by the referenced date is for the matter to be brought back before the council so that it could be 'revisited and for re-ratification'; the language says nothing about the fee expiring (by a date certain or otherwise). Our conclusion is supported by the fact that if it had been the council's intent to have its ordinance terminate automatically, this is not a difficult concept to put into words. Indeed, existing drafting models abound. See, e.g., St. 1994, c. 282, § 9 ('Sections four, five and six of this act shall cease to be effective on December thirty-first, nineteen hundred and ninety-six').
The city does argue that events that took place after the ordinance was enacted demonstrate that the councilors themselves did not believe the ordinance would terminate of its own accord. The judge below relied on this argument in part, but we do not. See generally Sullivan v. Finkelstein, 496 U.S. 617, 631-32 (1990) (Scalia, J., concurring in part) (aptly criticizing judicial reliance on 'subsequent legislative history' to interpret the intent of legislation that had already been enacted).
We rely on the language of the ordinance, and not on any interpretive presumptions. In particular, we decline to accept the city's invitation to invoke the presumption against implied repeal. See Registrar of Motor Vehicles v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 382 Mass. 580, 585 (1981). The question here is what the original ordinance intended, not whether a subsequent legislative act repealed it.
Because the fee ordinance did not automatically terminate by its own terms, and because the council has not enacted a subsequent ordinance repealing it, it necessarily follows that the ordinance is still in effect.
Judgment affirmed.
By the Court (Trainor, Milkey & Agnes, JJ.),