On January 5th, 2010 the Supreme Judicial court upheld a lower courts finding that the fees imposed on inmates being held by the Bristol County Sheriffs office were unlawful in Souza v. Sheriff of Bristol County No. SJC-10508.
The court stated “In July, 2002, they commenced an action in the Superior Court for declaratory and injunctive relief, raising many challenges to the imposition of certain fees on them and other inmates by the defendant, the sheriff of Bristol County (sheriff), pursuant to an “Inmate Financial Responsibility Program” (program).  The fees include a five dollar per day “cost of care” fee, as well as fees for a number of services, including medical care, haircuts, and general education development (GED) testing. After various proceedings, the parties filed cross motions for summary judgment. A Superior Court judge allowed the plaintiffs’ motion and denied the sheriff’s motion, concluding that the sheriff lacked authority to impose the cost of care fee, the medical care fee, the haircut fee in excess of $1.50, and the GED fee. He ordered the entry of a declaration stating that those fees “are invalid and unauthorized by law,” and permanently enjoined the sheriff and his agents “from imposing the aforesaid fees.” Pursuant to Mass. Civ. P. 54(b), 365 Mass. 820 (1974), a separate and final judgment entered consistent with his order and from which the sheriff appeals.  We transferred the case here on our own initiative. We affirm.
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. Massachusetts Hosp. Ass’n v. Department of Med. Sec., 412 Mass. 340, 342 (1992). Where the Legislature has fully regulated a subject by statute, a government agency or officer cannot further regulate that subject by establishing a policy inconsistent with the statutory scheme. Id. at 347. By imposing the remaining challenged fees, the sheriff acted in excess of his authority and contrary to the intent of the Legislature.
The Legislature has expressly authorized sheriffs to charge certain fees in the performance of their duties. For example, a sheriff may charge certain enumerated fees relative to serving civil and criminal process. See G.L. c. 262, § 8. In connection with a sheriff’s service of process function, the Legislature permits a sheriff to “charge for each copy at [a certain prescribed] rate.” G.L. c. 262, § 11. In supplementary process proceedings, a sheriff may charge certain fees for copies, and travel, and, “[f]or each day’s attendance at court on the examination of a defendant or debtor in his custody… [a fee of] five dollars.” G.L. c. 262, § 14. In addition, the sheriff is allowed a mileage allowance at a specified rate for the costs associated with transporting inmates to or from court, see G.L. c. 262, § 21, and is allowed “his actual traveling expenses incurred in the performance of his official duties.” G.L. c. 37, § 21.
Where the Legislature expressly authorized the sheriff to charge certain fees and to use inmate funds in particular ways and only in circumscribed circumstances, as is the case here, we conclude that the broad authority to have control and custody of county correctional institutions under G.L. c. 126, § 16, does not confer authority to the sheriff to impose the challenged fees. See Harborview Residents’ Comm., Inc. v. Quincy Hous. Auth., 368 Mass. 425, 432 (1975) (statutory expression of one thing is implied exclusion of other things omitted from statute). Had 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. Our decision in Commonwealth v. Donohue, 452 Mass. 256 (2008), does not require a contrary result.  Thus, in the absence of specific legislative authority for the challenged fees, they are invalid
The issue here is of basic constitutional law. The Sheriff is not a member of the legislative branch and therefore cannot create new laws. He is also specifically granted authority in certain respects and in this case it isn’t present. The fact that inmates should be in some small way be providing for themselves and paying fees is an issue to be addressed by the legislature. Whether they choose to (very doubtful) by enacting their own legislation or deferring to the Sheriff to allow his office to do so are at their discretion.
Attorney Ronald. A. Sellon