Pearson et al v. Hodgson et al

Filing 114

Judge Indira Talwani: ORDER entered. MEMORANDUM AND ORDER. Sheriff Hodgson's Motion for Judgment on the Pleadings [#61] and Securus's Motion for Judgment on the Pleadings [#65] are ALLOWED. Plaintiffs' Motion for Partial Summary Judgment on Count I [#70] and Motion for Class Certification [#76] are DENIED. See attached. (Kelly, Danielle)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
KELLIE PEARSON, ROGER
BURRELL, BRIAN GIVENS, and
THE LAW OFFICES OF MARK
BOOKER, on behalf of themselves
and those similarly situated,
Plaintiffs,
v.
THOMAS M. HODGSON, individually
and his official capacity as Sheriff of
Bristol County, and SECURUS
TECHNOLOGIES, INC.,
Defendants.

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Civil Action No. 18-cv-11130-IT

MEMORANDUM & ORDER
June 22, 2020
TALWANI, D.J.
Plaintiffs allege that Thomas Hodgson, the Sheriff of Bristol County, Massachusetts
(“Sheriff Hodgson” or “Sheriff”), has acted outside of the authority granted to him by the
Massachusetts Legislature by procuring an inmate calling service that was deployed, in part, to
raise revenues for the office of the Sheriff. Plaintiffs have also brought suit against Securus
Technologies, Inc. (“Securus”), the inmate calling service vendor, alleging that Securus engaged
in unfair and deceptive practices under Massachusetts law. Pending before the court are
Defendants’ Motions for Judgment on the Pleadings [#61], [#65] and Plaintiffs’ Motion for
Partial Summary Judgment on Count I [#70] and Motion for Class Certification [#76].
The lynchpin of Plaintiffs’ claims—set forth in Count I as a claim for declaratory
judgment—is that Sheriff Hodgson used the inmate calling contract with Securus to generate

revenues in violation of Massachusetts law as set forth by the Massachusetts Supreme Judicial
Court (“SJC”) in Souza v. Sheriff of Bristol Cty., 455 Mass. 573 (2010). Defendants argue that
the Massachusetts Legislature has, in fact, authorized inmate calling as a source of revenue in a
2009 Session Law. Plaintiffs counter that Defendants are misinterpreting and overextending the
2009 law and that the Legislature never endorsed the Sheriff’s practices. The parties agree that
the question of law underlying these motions—whether the Sheriff may collect revenue from
inmate calling services—is ripe for resolution. For the reasons set forth below, the court
concludes that the Massachusetts Legislature authorized the county sheriffs’ use of inmate
calling to generate revenue. Accordingly, Defendants’ Motions for Judgment on the Pleadings
[#61], [#65] are ALLOWED, and Plaintiffs’ Motion for Partial Summary Judgment on Count I
[#70] and Motion for Class Certification [#76] are DENIED.
I.

PROCEDURAL BACKGROUND
Plaintiffs filed this action in Massachusetts Superior Court. See Compl. [#1-1]. Plaintiffs

sought both injunctive and monetary relief on behalf of themselves as well as on behalf of a class
of plaintiffs similarly situated. Id. ¶¶ 52–63; id. ¶¶ 64–72. Securus timely removed the case to
this court pursuant to the jurisdiction provided by the Class Action Fairness Act. See Not. of
Removal ¶ 9 [#1].
The complaint alleged six causes of action. Compl. ¶¶ 73–101 [#1-1]. Counts I through
IV are brought against Sheriff Hodgson. Count I seeks a declaratory judgment that the revenues
generated from the Sheriff’s inmate calling service contracts with Securus are contrary to
Massachusetts law as set forth by the SJC in Souza. Compl. ¶¶ 73–75. Count II seeks a
declaratory judgment that, to the extent Plaintiffs were charged amounts that went to the Sheriff
as commissions, the Sheriff was charging unlawful taxes or fees. Id. ¶¶ 76–78. Count III alleges

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that the Sheriff engaged in ultra vires taxation for which it does not have statutory authority in
violation of Part I, Article XXIII of the Massachusetts Constitution. Id. ¶¶ 79–85. Count IV
alleges that, in the alternative to Count III, the Sheriff extracted unlawful fees from Plaintiffs
beyond its statutory authority in violation of Mass. Gen. Laws ch. 126, § 29. Id. ¶¶ 86–93.
Counts V and VI are brought against Securus. Count V alleges that Securus committed
the tort of conversion by taking the class members’ money through coercion and without legal
authority to do so. Id. ¶¶ 91–93. Count VI alleges that Securus engaged in unfair and deceptive
trade practices in violation of Mass. Gen. Laws ch. 93A, § 2. Id. ¶¶ 94–101.
Both Sheriff Hodgson and Securus moved to dismiss all claims. See Hodgson Mot. [#26];
Securus Mot. [#28]. The court found that the alleged conduct fell outside of the Sheriff’s
authority, consistent with the SJC’s holding in Souza that the Sheriff could not impose fees
without the Legislature’s approval where he had not identified legislative authority that
authorized the collection of commissions. See Mem. & Order [#45]. Accordingly, the court
denied these motions except as to Plaintiffs’ claim against Securus for conversion and, on
Plaintiffs’ stipulation, claims for monetary relief against Sheriff Hodgson in both his individual
and official capacity. See id. 6, 20. This left Counts I and II, to the extent they sought declaratory
relief against Sheriff Hodgson, and Count VI—the ch. 93A claim seeking monetary and
injunctive relief from Securus. Defendants answered, see Answers [#49], [#50], and discovery
commenced. See Scheduling Order [#53].
Several months into discovery, Defendants filed the present Motions for Judgment on the
Pleadings [#61], [#65]. These motions cite legislation from 2009 concerning the Sheriff’s
authority to collect revenues from inmate telephone systems that was not previously before the
court. Plaintiffs, in turn, filed a Motion for Partial Summary Judgment on Count I [#70], seeking

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a declaratory judgment that the revenues the Sheriff generated from Securus’s contract with
Bristol County are contrary to Massachusetts law. Plaintiffs also filed their Motion for Class
Certification [#76].
II.

STANDARD OF REVIEW
Defendants move for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c).

“Judgment on the pleadings is proper ‘only if the uncontested and properly considered facts
conclusively establish the movant’s entitlement to a favorable judgment.’” Zipperer v. Raytheon
Co., 493 F.3d 50, 53 (1st Cir. 2007) (citing Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 54 (1st
Cir. 2006)). Accordingly, the court must view the facts contained in the pleadings “in the light
most favorable to the nonmovant and draw all reasonable inferences in his favor.” Id. In this
way, a motion for a judgment on the pleadings “is treated much like a Rule 12(b)(6) motion to
dismiss” except for that a motion under Rule 12(c) is filed after the close of pleadings and
implicates the pleadings as a whole. Harper v. Melendez, No. CV 18-12137-FDS, 2019 WL
6307201, at *1 (D. Mass. Nov. 22, 2019) (citing Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26,
29 (1st Cir. 2008); Aponte–Torres v. Univ. of P.R., 445 F.3d 50, 54–55 (1st Cir. 2006)). The
court also takes into consideration “documents incorporated by reference into the complaint,
matters of public record, and facts susceptible to judicial notice.” Haley v. City of Bos., 657 F.3d
39, 46 (1st Cir. 2011).
On Plaintiffs’ Motion for Partial Summary Judgment on Count I, the court must construe
the record “in the light most favorable to the non-movant and resolv[e] all reasonable inferences
in that party’s favor.” Prescott v. Higgins, 538 F.3d 32, 39 (1st Cir. 2008); see also Fed. R. Civ.
P. 56. (“Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

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genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law”); Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 7–8 (1st Cir. 1990)
(internal quotation marks and citation omitted). “To defeat a motion for summary judgment, the
evidence offered by the adverse party cannot be merely colorable or speculative . . . [it] must be
significantly probative of specific facts.” Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st
Cir. 2008) (internal quotation omitted). The “mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for summary
judgment.” Rossy v. Roche Prods., Inc., 880 F.2d 621, 623–24 (1st Cir. 1989).
III.

FACTUAL BACKGROUND1
In May 2011, Sheriff Hodgson solicited bids for an inmate calling service at several of

Bristol County’s correctional facilities through a Request for Responses (“RFR”). Compl. ¶ 28
[#1-1]; Hodgson Answer ¶ 28 [#50]. The RFR required each bidder to include in its bid
“commissions” that the bidder would pay to the Sheriff based on gross revenues that the bidder
received from operating the inmate calling service, including both “collect and direct dial (debit)
modes.” RFR §§ 5.1.20–5.1.21 [#62-2].
On August 8, 2011, the Sheriff awarded Securus a five-year contract to serve as the
vendor for the Bristol County Correctional Facilities’ inmate calling service. The contract
provided that the Sheriff would receive annual funding for two on-site administrator positions at
$65,000 each, a $75,000 annual technology fee, and “commission” in the amount of 48% of
Securus’s gross revenues from the inmate calling service. Compl. ¶¶ 31, 34 [#1-1]. Between
August 2011 and June 2013, Securus paid the Sheriff an aggregate of $1,172,748.76. Id. ¶ 35.

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The court resolves this case on the pleadings by taking the well-pled allegations as true.
However, as the parties noted at the hearing on these motions, there is no material factual dispute
that is relevant to the motions at bar.
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On October 21, 2015, the Sheriff and Securus entered into a new contract for a four-year
term. The new contract discontinued commissions paid to the Sheriff based on revenue but
continued to fund the on-site administrator positions and annual technology fee. Furthermore, the
new contract provided that these amounts would be paid by Securus through a one-time upfront
payment of $820,000 instead of $205,000 annually over the course of the four-year contract.2 Id.
¶¶ 41–44.
IV.

DISCUSSION
A. Cross-Motions on Count I (Declaratory Judgment)
Count I of Plaintiffs’ complaint seeks a declaration that the manner in which the Sheriff

has contracted with Securus to provide for inmate calling in county jails is prohibited by
Massachusetts law. Hodgson’s motion argues that, through the 2009 Session Law, “the
Massachusetts Legislature expressly authorized the [Sheriff], along with other Massachusetts
sheriffs’ offices, to engage in the specific acts and practices that plaintiffs now allege were
outside the scope of their authority.” Def. Hodgson Mem. 1 [#62]. Plaintiffs’ motion for partial
summary judgment, in turn, argues that the 2009 Session Law does not change the conclusion
reached by the court on the motion to dismiss that the alleged conduct fell outside of the
Sheriff’s authority. To resolve this issue, the court first reviews the Sheriff’s authority, as
provided in Souza, and then turns to the 2009 Session Law.

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In the Complaint, Plaintiffs alleged that this lump sum payment was a roundabout way of
continuing to pay the Sheriff commissions. Compl. ¶ 46 [#1-1]. Plaintiffs retracted this allegation
during oral argument and stated that they were no longer claiming that the Sheriff was
continuing to collect commissions from the inmate telephone system. Nevertheless, Plaintiffs
maintain that there is still an ongoing dispute requiring declaratory relief because, Plaintiffs
allege, the Sheriff’s policy of charging inmates any amount of money if not authorized by the
Legislature is unlawful.
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1.

The Limits of the Sheriffs’ Authority as Set Forth in Souza

In Massachusetts, correctional facilities are operated both by the state, through the
Massachusetts Department of Corrections, and by elected county sheriffs.3 The Massachusetts
Legislature has enacted laws, codified for the most part in Title XVIII of Part I of the General
Laws, which provide the statutory scheme for these facilities. In general, they provide that
superintendents, appointed by the commissioner of the Department of Corrections, have custody
and control over inmates in state prisons. Mass. Gen. Laws ch. 125, §§ 1, 14. Custody and
control of inmates in county facilities rests with each county’s elected sheriff, as “jailer,
superintendent or keeper.” Mass. Gen. Laws ch. 126, § 16. Souza challenged the authority of an
elected sheriff in this role.
Souza arose from a claim filed against Sheriff Hodgson in July 2002. In that case, the
plaintiffs challenged Sheriff Hodgson’s imposition of two different types of fees on inmates: a
daily, five dollar “cost of care” fee that was assessed to all inmates “for administrative services
rendered and to assist in defraying the costs of incarceration,” and various fee-for-service
charges for medical care, haircut services, and GED testing. See Souza, 455 Mass. at 575.
Judgment was entered for the plaintiffs in 2008. Souza v. Hodgson, No. BR-CV-2002-00870,
2008 WL 6085022 (Mass. Super. June 12, 2008). The Sheriff appealed to the Massachusetts
Appeals Court, Souza v. Hodgson, No. 2008-P-1873 (Mass. App. Ct.), and the SJC transferred
the case to itself on its own initiative. Souza v. Sheriff of Bristol Cty., 455 Mass. 573 (2010).
In finding that the Sheriff did not have the authority to charge the challenged fees, the
SJC rejected the Sheriff’s argument that he had an inherent right under the common law to
charge fees to inmates. Id. at 577–80. Instead, the SJC found that “the powers, duties, rights, and
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As a general matter, prisons are operated by the state while jails and houses of correction are
county facilities. Souza v. Sheriff of Bristol Cty., 455 Mass. 573, 580 (2010).
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liabilities of a sheriff as a jailer are prescribed by statute, and his powers, duties, rights and
liabilities are thus circumscribed by the legislative enactments of the particular jurisdiction.” Id.
at 580 (quoting 1 W.H. Anderson, Sheriffs, Coroners, and Constables § 42, ¶ 266 (1941)).
Consistent with the SJC’s determination that the Sheriff’s authority is not inherent, but
rather is created and bounded by statute, the SJC ruled that the Sheriff exceeded his authority
when he acted beyond the parameters of the Legislature’s statutory scheme. Id. at 584 (“A
government agency or officer does not have authority to issue regulations, promulgate rules, or,
as in the instant case, create programs that conflict with or exceed the authority of the enabling
statutes”) (citing Massachusetts Hosp. Ass'n v. Department of Med. Sec., 412 Mass. 340, 342
(1992)). For example, by charging inmates GED testing fees the Sheriff had contravened the
Legislature, since the Legislature had deemed that inmates should have free access to GED
testing. Id. at 586. Similarly, the SJC ruled that the Legislature made it so that only the
commissioner of the Department of Corrections had the authority to establish medical care fees
and thus the Sheriff was not free to charge his own. Id. at 587–88. And, as for the cost-of-care
fees that were used to recoup or offset the costs associated with incarcerating inmates, the SJC
found that the Legislature intended that inmates contribute to such expenses only where the
inmate is earning income in connection with a work-release program. Id. at 585–86. Given this
broader statutory framework crafted by the Legislature, the SJC concluded that “[h]ad the
Legislature intended to authorize the sheriff to impose the challenged fees, it would have said so
expressly as it had done with other fees, such as fees for service of process, and as it had done by
authorizing particular deductions from inmate funds.” Id. at 586. As a result, the fees were
charged “in the absence of specific legislative authority” and were “invalid.” Id.

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2.

The 2009 Session Law

All sheriffs’ offices in the commonwealth were originally part of county government.
That changed between 1997 and 2000 when the Massachusetts Legislature transferred seven of
the fourteen sheriffs’ offices to the commonwealth as part of the abolishment of their respective
county governments. When Souza was filed in 2002, the remaining seven sheriffs’ offices,
including Bristol County’s, were still operating within the county governments.
While Souza was making its way through the courts, this changed. As explained in the
2013 Report of the Special Commission on the Consolidation of Sheriffs’ Offices 6–8 [#62-4],
new legislation was precipitated by a shortfall towards the end of 2007 and 2008 in county
revenues from Deed Excise Taxes used to cover sheriffs offices’ expenses in seven counties. A
version of this legislation was introduced in January 2008, but was not enacted. Hodgson’s
Additional Undisputed Facts ¶¶ 12–13 and Exh. B [#80]. A revised version of the bill, S.B. 2119,
with the same title but including various changes, including the addition of Section 12, discussed
below, was introduced in January 2009. Id. at ¶¶ 14–15 and Exh. C.
The final version, “An Act Transferring County Sheriffs to the Commonwealth” (the
“2009 Session Law” or “Act”), including additional language in Section 22, also discussed
below, was enacted on August 6, 2009, as “an emergency law, necessary for the immediate
preservation of the public convenience.” 2009 Mass. Legis. Serv. ch. 61. Some, but not all,
sections were codified in the Massachusetts General Laws.4
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Some background regarding terminology may be helpful here. According to the Massachusetts
Legislature’s website, all bills that become laws are assigned chapter numbers based on the
chronological order in which the bill was adopted. The chapters are referred to as “session laws”
and are annually reported in a publication called the Acts and Resolves of Massachusetts. See
https://malegislature.gov/Laws/SessionLaws. Some Session Laws are codified into the
Massachusetts General Laws, as set forth in Mass. Gen. Laws ch. 3 § 51. “As a general matter,
uncodified provisions of an act express the Legislature's view on some aspect of its operation;
they are not the source of the substantive provisions of the law. Uncodified provisions may, for
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Sections 3–5 of the 2009 Session Law transferred the offices, duties, and authority of the
Barnstable, Bristol, Dukes, Nantucket, Norfolk, Plymouth, and Suffolk county sheriffs to the
commonwealth. 2009 Session Law § 3–5 [#62-1]. This included “operation and management of
the county jail and house of correction.” Id. § 4. Section 1 of the 2009 Session Law amended an
existing general law to account for the commonwealth paying salaries of the sheriffs, and Section
2 amended an existing law to create a Deeds Excise Fund from certain funds collected in the
county of a transferred sheriff to satisfy unfunded county pension liabilities and other benefits,
with other amounts to be transferred to the Commonwealth’s General Fund. Id. §1–2. The
Session Law provided further “all valid liabilities and debts of the office of the transferred
sheriff” and “all assets of the office of a transferred sheriff . . . shall become assets of the
commonwealth, except as otherwise provided in this act.” Id. § 6. Included in this conveyance
were all rights, title, and interest in “all correctional facilities,” “all leases and contracts,”
and “county correctional funds and other sources of income and revenue, to the credit of the
office of a transferred sheriff on June 30, 2009.” Id. § 7, 9, 11.
Section 12(a) of the 2009 Session Law provided that “[n]otwithstanding any general or
special law to the contrary . . . revenues of the office of sheriff [of the affected counties] for civil
process, inmate telephone and commissary funds shall remain with the office of sheriff.” Section
12(b) provided that “notwithstanding any general or special law to the contrary, in order to

example, address when the legislation will take effect, state if it will have retroactive effect, and
provide mechanisms for handling special situations during the transition period between the date
of enactment and the effective date of the new statute.” Chin v. Merriot, 470 Mass. 527, 532
(2015). It is not apparent why the portion of the Session Law on which Defendants rely, § 12(a),
was not codified so that it could be easily accessed by the public. Nonetheless, the legal force of
a Session Law is not necessarily augmented or reduced based on whether the Session Law is
codified into the General Laws. See Com. v. Laltaprasad, 475 Mass. 692, 700 n.12 (2016) (“we
did not intend to suggest . . . that uncodified provisions cannot or by definition do not serve as a
source of substantive law”).
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encourage innovation and enterprise, each sheriff’s office shall annually confer with the house
and senate committees on ways and means regarding that sheriff’s efforts to maximize and
maintain grants, dedicated revenue accounts, revolving accounts, fee for service accounts and
fees and payments from the federal, state and local governments and other such accounts and
regarding which revenues shall remain with the sheriff’s office.” Section 12(c) provided that
“[a]ny sheriff who has developed a revenue source derived apart from the state treasury may
retain that funding to address the needs of the citizens within that county.”
Section 22 provided for the creation of a special commission to make an investigation
and study relative to reorganization and consolidation of sheriff’s offices and to make formal
recommendations, including best management practices addressing “the current use of civil
process funds, including the amount of civil process funds collected by each county sheriff and
the actual disposition of said funds currently, and, in the event of consolidation, realignment,
elimination or reorganization [of sheriffs’ offices], the collection and use of civil process fees in
the future.” Id. § 22(4).
4.

Does the 2009 Session Law Authorize County Sheriffs to Generate Revenue Using
Inmate Calling Service Systems?

The court now turns to the question posed by the pending motions: Did the 2009 Session
Law provide the Sheriff with authority to generate revenue from inmate calling services? For the
reasons set forth below, the court concludes that the 2009 Session Law confirmed the
Legislatures’ grant of authority to Sheriffs to derive revenue in this way, and that the Sheriff
therefore did not act outside his authority.
The critical question is the meaning of § 12(a)’s provision that “revenues of the office of
sheriff [of the affected counties] for civil process, inmate telephone and commissary funds shall
remain with the office of sheriff.” The court does not find the reference to “revenue . . . for . . .
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inmate telephone and commissary funds” plain on its face. The court reads this provision,
however, in harmony with another provision relating to inmate funds. In both state and county
correctional facilities, the superintendent or jailer is required to be the custodian of an inmate’s
money and property. See Mass. Gen. Laws. ch. 127, § 3. In 1962, the Legislature recognized that
these funds could generate income, and added the provision that “[a]ny interest accruing as a
result of the deposit of such money may, by agreement with the prisoners concerned, be
expended for the general welfare of all the inmates at the discretion of the superintendent.” 1962
Mass. Legis. Serv. ch. 569; see Mass. Gen. Laws. ch. 127, § 3 (1962–1994). In 1994, the
Legislature recognized a further source of revenue relating to these funds, amending the statute
to provide that “[a]ny monies derived from interest earned upon the deposit of such money and
revenue generated by the sale or purchase of goods or services to persons in the correctional
facilities may be expended for the general welfare of all the inmates at the discretion of the
superintendent.” 1994 Mass. Legis. Serv. ch. 60, § 125 (emphasis added); see Mass. Gen. Laws.
ch. 127, § 3 (1994).5 The court reads Section 12(a) of the 2009 Legislation in harmony with
Mass. Gen. Laws. ch. 127 § 3, understanding “revenue . . . for . . . inmate telephone and
commissary funds” to include both the interest on these inmate funds and “revenue generated by
the sale or purchase of goods [at the commissary] or [telephone] services to persons in the
correctional facilities.” In other words, at the time the 2009 Session Law was enacted, the
Massachusetts Legislature was aware that superintendents of correctional facilities, including the
seven county sheriffs, were generating revenue from inmate telephone calls and canteen

The corresponding regulation provides, in relevant part, that “any monies derived from interest
earned upon the deposit of such moneys and revenue generated by the sale or purchase of goods
or services to persons in county correctional facilities may be expended for the general welfare
of all the inmates at the direction of the Sheriff/facility administrator.” 103 Code Mass. Regs.
§ 911.08(2).
5

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purchases, and it was the Legislature’s intent to have such revenues “remain with the office of
the sheriff” for these seven sheriffs’ offices. 2009 Session Law § 12(a) [#62-1].
Plaintiffs present several contrary arguments. See Pls.’ Mem. 10–19 [#71]. Plaintiffs
argue first that the relevant portions of the 2009 Session Law are no more than “accounting
instructions” setting forth how revenues from commissions should be handled during the onetime transfer of sheriffs’ offices from the counties to the commonwealth. Pls.’ Mem. 10–11
[#71]. Plaintiffs contend that “Section 12(a) states that revenues a sheriff obtains from ‘inmate
telephone and commissary funds shall remain with the office of the sheriff’ during the
transition” and that “any funds previously collected should ‘remain’ with the sheriff during the
one-time transfer.” Pls.’ Mem. 11 [#71] (emphasis added). The qualifiers “during the transition”
and “during the one-time transfer” do not appear in the statute, and Plaintiffs’ construction would
require the court to conclude that the Legislature also intended that the sheriffs’ civil process
revenues would also only remain with the sheriff “during the one-time transfer.” This
interpretation is explicitly contradicted by Section 22 of the Act, which establishes a commission
tasked with studying possible ongoing operations of the sheriffs’ offices, including “the amount
of civil process funds collected by each county sheriff and the actual disposition of said funds
currently and, in the event of consolidation, realignment, elimination or reorganization, the
collection and use of civil process fees in the future.” 2009 Session Law § 22(4) [#62–1]. Where
the Legislature made apparent that the sheriffs’ offices would continue to collect and use civil
process funds after the 2009 consolidation in Section 22, the court cannot contort the language of
Section 12 to say the opposite.
Plaintiffs’ second and third argument are that the Legislature cannot grant authority by
“vague implication” but must use language that constitutes an “express authorization,” and that

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the court should not read Section 12(a) in isolation, but rather should consider the confines of the
cited provision and the broader purposes of the Act. Pls.’ Mem. 12-13, 15–17 [#71]. Specifically,
Plaintiffs argue that the 2009 Session Law does not use explicit language authorizing the revenue
and was carefully crafted so as to not provide the county sheriffs any new authority, and thus the
court should similarly constrain its reading of Section 12(a) so as to not grant the county sheriffs
new authority. As noted earlier, however, in 1994 the Legislature authorized correctional facility
superintendents to generate revenue from the sale of goods and services to inmates. Whether this
provision included authority to generate revenue from inmate telephone services or canteen is
not readily apparent and would require the court to engage in the same analysis the SJC
performed in Souza: would charging inmates for telephone and canteen services frustrate the
Legislature’s broader statutory scheme? The 2009 Session Law effectively answered that
question by making apparent that as to revenue derived from telephone and commissary
accounts, the Legislature knew of the revenue and that, until the Legislature further amends the
statutory scheme, the revenue would remain with the offices of the county sheriffs.
Fourth, Plaintiffs argue that Defendants’ interpretation of the 2009 Session Law “make[s]
no sense” insofar as it would authorize the sheriffs of these seven counties to charge telephone
fees while failing to address the authority of sheriffs of the previously transferred counties to do
the same. Pls.’ Mem. 17–18 [#71]. Plaintiffs’ argument is not persuasive considering that the
2009 Session Law was directed specifically towards these seven sheriffs’ offices and,
presumably, arose from negotiations between these seven sheriffs’ offices and the Legislature.6

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The more interesting question may be the status of any revenue generated from inmates at
facilities in the previously transferred counties or from inmates at state facilities. If this court is
correct that the authority to generate revenue from inmate calls derives in part from Mass. Gen.
Laws ch. 127, § 3, that same statute would limit the use of such revenue to “the general welfare
of all the inmates at the discretion of the superintendent.” However, a regulation adopted shortly
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Fifth, Plaintiffs argue that Defendants’ interpretation of the 2009 Session Law would
have the effect of sanctioning the fees found invalid by the SJC in Souza, since Section 12(c) of
the Act provides that “any sheriff who has developed a revenue source derived apart from the
state treasury may retain that funding to address the needs of the citizens within that county.” Id.
at 18–19 (citing 2009 Session Law § 12(c)). Plaintiffs argue that, since the cost-of-care fees
challenged in Souza were implemented before 2009, Section 12(c) of the 2009 Session Law
would, under Defendants’ interpretation, authorize them. Id.
But there is no conflict between the 2009 Session Law and Souza. Section 12(c) does not
speak to generating revenue from inmates (the issue addressed in Mass. Gen. Laws ch. 127, § 3,
and the reference to inmate telephone and commissary accounts in Section 12(a) of the 2009
Session Law), but of other (legal) sources of revenue funding the needs of the county’s citizens
generally. Instead, it is Section 12(a)—not 12(c)—that removes any ambiguity as to whether
collecting revenue through inmate telephone and canteen sales is consistent with the
Legislature’s statutory scheme. Since Section 12(a) only references revenues from civil process,
inmate telephone, and commissary, it cannot be used as authorization for the fees at issue in
Souza, which concerned cost-of-care, medical care, haircut services, and GED testing. 455 Mass.
at 574. Indeed, in this way, the 2009 Session Law affirms the SJC’s conclusion in Souza, since
the fees challenged in Souza are not enumerated in section 12(a).7

after the 2009 Session law was enacted provides, as to state-operated facilities, that “[a]ll
commissions received that are derived from inmate shall be returned to the General Fund of the
Commonwealth . . . . on a monthly basis.” 103 Code Mass. Regs. § 482.06; 1136 Mass. Reg. 53
(Aug. 7, 2009). However, this question and the validity of that regulation are not before the
court.
7
The court recognizes that fees for haircuts, medical care, and GED testing could be considered
“revenue generated by the sale or purchase of goods or services to persons in the correctional
facilities” under Mass. Gen. Laws. ch. 127, § 3. But in contrast to the Legislative silence
regarding inmate telephone calls and commissary accounts (other than in the 2009 Act), the
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Accordingly, the court concludes that the revenues challenged in this petition are
collected under authority granted to the county sheriffs by the Massachusetts Legislature, and
thus Counts I and II, which request a declaratory judgment that the fees are unlawful, are subject
to entry of judgment on the pleadings in favor of Defendants.
B. Count VI Against Securus and Motion for Class Certification
Throughout this litigation, Plaintiffs have rooted their argument that Securus is liable
under ch. 93A solely on the allegation that Securus entered into an arrangement with the Sheriff
to provide kickbacks in contravention of state law. As Plaintiffs allege in their complaint,
Securus engaged in unfair and deceptive acts by: “charging and collecting money” from
Plaintiffs “in order to make unlawful payments to the [Sheriff];” by “taking Plaintiffs’ funds
through coercion and without legal authority;” and, by “[u]sing funds derived from the telephone
calls [to] pay ‘commissions’ and prearranged lump-sum payments to the [Sheriff] in violation of
Massachusetts statutes and regulations.” Compl.¶ 97 [#1-1]. Then, at the hearing on Defendants’
motions to dismiss, Plaintiffs’ reasserted that their allegations did not arise out of the rates
Securus charged, but that Securus facilitated the Sheriffs’ violation of state law by paying the
Sheriff unlawful commissions. See, e.g., Tr. Hr’g on Mot. Dismiss 57:18–22 [#43] (“Securus is
benefitting from a contract by helping the Bristol County Sheriff's Office circumvent
Massachusetts law and facilitating what the county lacks the authority to do on its own. We
wouldn’t be here today if Securus had instead kept all the money for itself.”) Finally, Plaintiffs’
Opposition [#69] to Securus’s motion for judgment on the pleadings and Plaintiffs’ arguments at

Legislature had enacted statutory provisions relating to haircuts, medical care, and GED testing
critical to Souza’s analysis. See Souza, 455 Mass. at 583 (citing Mass. Gen. Laws ch. 124, § 1(r)
(haircut fee); Mass. Gen. Laws ch. 127, § 92A (GED fees); Mass. Gen. Laws ch. 124, § 1(t)
(medical care)).

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the hearing continued to eschew any other basis for Securus’s liability under ch. 93A.
Accordingly, in light of the court’s determination on Count I that the generation of revenue from
inmate telephone was within the county sheriffs’ authority, Securus is entitled to judgment on the
pleadings. Plaintiffs’ Motion for Class Certification [#76], which only requests certification of a
class as to Count VI against Securus, is consequently denied.
V.

CONCLUSION
Plaintiffs’ concern that the Sheriff is generating revenue through charges paid by

inmates’ families and attorneys for phone service is timely as our communities consider how the
criminal justice system may best achieve its stated goals. However, these policy questions are for
the Legislature not the court. The court is tasked instead with determining the legal question of
whether the Massachusetts Legislature granted the Sheriffs authority to generate revenues from
inmate telephone services. On that question, the court finds that the Legislature has granted the
Sheriff that authority and, accordingly, the claims brought against him and Securus must be
dismissed. Thus, Sheriff Hodgson’s Motion for Judgment on the Pleadings [#61] and Securus’s
Motion for Judgment on the Pleadings [#65] are ALLOWED. Plaintiffs’ Motion for Partial
Summary Judgment on Count I [#70] and Motion for Class Certification [#76] are DENIED.
IT IS SO ORDERED.
Date: June 22, 2020

/s/ Indira Talwani
United States District Judge

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