Town of Sudbury v. Massachusetts Bay Transportation Authority

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by Jessica G. Kelly

Case Focus

The long-standing “prior public use doctrine”—a common law doctrine which arose in the 1800s—states that “public lands devoted to one public use cannot be diverted to another inconsistent public use without plain and explicit legislation authorizing the diversion.” Town of Sudbury v. Massachusetts Bay Transportation Authority, 485 Mass. 774, 775 (2020) (Sudbury).  In a much anticipated decision, the Supreme Judicial Court (SJC) held that the prior public use doctrine did not apply to “diversion of land devoted to one public use to an inconsistent private use.” In Sudbury, the SJC declined to extend the doctrine to land transactions between public agencies and private entities. 

As the defendants in the underlying case, the Massachusetts Bay Transportation Authority (MBTA) and NSTAR Electric Company d/b/a Eversource Energy (Eversource) urged, the SJC reasoned that application of the prior public use doctrine to public to private transactions would have broad, adverse implications for real estate and housing development in the Commonwealth, including creating significant uncertainty in developments that benefit the public.

Background

The case began in 2017, after the MBTA entered into an option agreement with Eversource to install an electric transmission line underneath approximately nine miles of a former MBTA railroad right of way (ROW), a portion of which traveled through the Town of Sudbury (Town). The MBTA originally acquired the ROW through a railroad company indenture and through eminent domain for purposes of mass transportation services. The ROW had not, however, been used as a railroad for over forty years. The option agreement would generate $9.3 million for the MBTA over twenty years. 

The Town challenged the agreement as violating the prior public use doctrine, arguing that the ROW could not be changed to an electrical utility use absent legislative approval. The Town took the position that Eversource’s proposed utility line was actually a subsequent public use, because utilities have a public purpose and, therefore, fell within the doctrine.

In granting the defendants’ Motion to Dismiss, the Land Court (Piper, J.) concluded that the Town’s standing was on the “precipice of adequacy,” but that Eversource was not a public entity, the proposed use at issue was a subsequent private use, and, therefore, the prior public use doctrine did not apply.

The Court’s Analysis

The SJC affirmed. The SJC first held that the Town had standing based on the limited portions of publicly-owned land abutting or within the ROW, but only to the extent the Town had a legally cognizable interest in the ROW remaining in its “current, disused, and overgrown condition.”

The SJC next addressed whether the prior public use doctrine applied to the option agreement. The Town argued that the Land Court erred because (1) even though Eversource is a private corporation, the proposed use of the ROW for electrical transmission lines is a public use; and (2) the Land Court’s narrow reading of the prior public use doctrine defeats the purpose of protecting “public land acquired for a particular public use” from being diverted to a different use without legislative approval.

The SJC agreed with the Land Court that, “the proposed use of the MBTA ROW to construct and operate underground transmission lines is not a public use.” The Court focused on the character of the use, noting that Eversource is privately owned and operated, will pay taxes and can earn a profit on the project. That Eversource is subject to public regulation and oversight did not convert the privately owned utility into a public entity.    

The SJC also agreed with the Land Court that the prior public use doctrine could not be extended to protect public land from any subsequent inconsistent use. The Court explained that the doctrine originally developed, not just to protect public land, but to resolve disputes over inter-governmental transfers between public agencies, political subdivisions and/or state-sponsored corporations that may have conflicting claims to authority over the use of public land, especially parkland. As examples, the SJC cited to a dispute between a town and State agency over whether property acquired for parkland could be converted to a transportation use, Brookline v. Metropolitan Dist. Comm’n, 357 Mass. 435, 435 (1970), and a dispute between a town and county commissioners concerning the relocation of a public way over land previously appropriated for school and library use, Needham v. County Comm’rs of Norfolk, 324 Mass. 293, 295-297 (1940), among others. 

The SJC concluded that the “doctrine of prior public use prevents the absurd result of public entities, each with the authority to exercise eminent domain, taking and retaking the same property from each other” in perpetuity. Noting that the prior public use doctrine had never been applied to prevent a subsequent private use by a private entity, the SJC expressly declined to extend the doctrine to such circumstances. The Court also cautioned that requiring legislative approval for every diversion of land from public to private use “would lead to numerous deleterious consequences,” such as adding significant uncertainty to development in the Commonwealth and making important collaborations between public and private entities time- and cost-prohibitive.

Implications

The SJC’s decision in Sudbury was a relief to real estate and utility industries, among others. The SJC appeared persuaded by the argument that public/private development projects rely on the ability of public agencies to divert public land to private entities for private uses, and that many such developments further public purposes such as clean energy, public housing, and affordable child care facilities, and generate significant income for the Commonwealth.

It is important to note that the Sudbury decision does not open the floodgates to unfettered transfers of public lands, but simply eliminates the need for legislative approval for those transfers to private entities for private uses. Aggrieved parties may still challenge projects through local zoning, site plan review, utility, environmental, building and conservation procedures. Indeed, the Town of Sudbury’s appeal of the Energy Facilities Siting Board’s decision approving Eversource’s transmission line is currently pending before the SJC, No. SJC-12997. 

Jessica Gray Kelly is a partner at the Boston office of Freeman Mathis & Gary, LLP.  She represents clients in complex commercial litigation, land use disputes, and professional liability matters. She also advises clients on risk reduction and management and dispute resolution. 


When Everything Slowed Down: Evaluating the Right to Speedy Trial in a Pandemic

Deakin_106x126Janet L. Sanders_106x126by Hon. David A. Deakin and Hon. Janet L. Sanders

Legal Analysis

The COVID-19 pandemic has halted jury trials in Massachusetts state courts since March 13, 2020. The inability to set a reliable trial date, in turn, has created a logjam of unresolved cases. Between 2017 and 2019, Massachusetts trial courts empaneled an average of 3883 juries each year. See Jury Management Advisory Committee, Report and Recommendations to the Justices of the Supreme Judicial Court on the Resumption of Jury Trials in the Context of the COVID-19 Pandemic, at App. 9, p. 107 (July 31, 2020). It is fair to project that roughly this number of cases will have been added to the courts’ backlog as a result of the moratorium on jury trials for most of 2020 and early 2021. Although there are anecdotal reports of some decline in new indictments and civil filings, the backlog is almost certain to continue to grow in the coming months.  

On the civil side, this backlog means a longer wait for one’s day in court. On the criminal side, the prospect of continued delay is even more serious. With limitations on the availability of jury trials expected to extend well into 2021, requests to dismiss on speedy trial grounds will become more commonplace. This article examines both the constitutional basis for such requests and the implications of the pandemic for Rule 36 motions to dismiss. The article also attempts to shed light on how lawyers and judges should approach the analysis of these issues – particularly the constitutional limitations on delay imposed by a public health emergency.

The Constitutional Analysis

Criminal defendants have rights to a speedy trial under both the United States and Massachusetts Constitutions. See Barker v. Wingo, 407 U.S. 514 (1972); Commonwealth v. Dirico, 480 Mass. 491 (2018). Under the federal Constitution, the Sixth and Fourteenth Amendments guarantee the right to a speedy trial. See Barker, 407 U.S. at 515. In Massachusetts, Article 11 similarly and independently protects that same right as a matter of state constitutional law. See Dirico, 480 Mass. at 505, citing Commonwealth v. Butler, 464 Mass. 706, 709 n.5 (2013); Commonwealth v. Gilbert, 366 Mass. 18, 22 (1974). In applying Article 11, Massachusetts courts look to federal precedent interpreting the Sixth Amendment “because the analysis is analogous.” Dirico, 480 Mass. at 505.

Under both the federal and Massachusetts Constitutions, a defendant seeking dismissal for violation of the speedy trial right must show initially “that the interval between accusation and trial has crossed the threshold dividing ordinary from ‘presumptively prejudicial delay.” Dirico, 480 Mass. at 505. This burden, however, “is relatively modest.” Dirico, 480 Mass. at 506. Massachusetts “courts have generally found post accusation delay ‘presumptively prejudicial’ at least as it approaches one year.” Dirico, 480 Mass. at 506, quoting Doggett v. United States, 505 U.S. 647, 652 n.1 (1992).

Upon a finding of presumptively prejudicial delay, both federal and Massachusetts courts then apply Barker’s familiar four-part test. This requires the court to consider: “the length of the delay, the reason for the delay, the defendant’s assertion of his right to a speedy trial, and prejudice to the defendant.” Dirico, 480 Mass. at 506, citing Barker, 407 U.S. at 530. Although courts will look to the four-part Barker analysis to resolve speedy trial claims, its application to the extraordinary situation of a global public health emergency raises novel issues.

In calculating the length of the delay, the first Barker factor, courts begin with the date the complaint was first lodged against the defendant. The pandemic is almost certain to add well over a year to the wait for trial for those defendants arrested before its onset. For those arrested during the pandemic, it will add delay of as much as a year or even more.  

The second Barker factor, which looks to the reason for the delay, involves an analysis of the government’s role in creating it. See Dirico, 480 Mass. at 506. Generally, the greater the fault attributed to the government, the more heavily that factor weighs in favor of dismissal. See Dirico, 480 Mass. at 406, citing Butler, 464 Mass. at 716; Doggett, 505 U.S. at 657. The most common application of the second Barker factor is to cases in which the prosecution is responsible for the delay, which is not the case here. Massachusetts courts have not yet had  occasion to apply the Barker analysis to emergency situations. However, two federal courts that have analyzed delays due to public emergencies have held that delays of three and seven weeks resulting from a volcanic eruption and the September 11, 2001 attacks in New York, respectively, were excluded from the calculation of elapsed time under the federal Speedy Trial Act, 18 U.S.C. § 3161(h)(8)(A). Each of these cases was limited to an application of the Speedy Trial Act, so neither involved application of the Barker analysis. Moreover, each involved a relatively modest delay caused by a localized emergency. The delay attributable to the COVID-19 pandemic, by contrast, will be much longer than the delay in either of these cases and will be experienced throughout the Commonwealth and, to varying degrees, across the country.

In the current situation, in which jury trials have been prohibited in the Commonwealth by order of the Supreme Judicial Court since March 16, 2020, the prosecution is not responsible for delay. Through various orders, the SJC has suspended jury trials because of the health risks they pose to participants. The unavailability of jury trials is thus at least arguably the result of government action. See State v. Labrecque, ___ A.3d___, 2020 WL 5268718 (Vt. Sep. 3, 2020) (delay caused by COVID-19 pandemic attributed to government moratorium on jury trials, despite lack of prosecutorial responsibility). The SJC’s decisions to suspend jury trials may ultimately be deemed to have been entirely reasonable under the circumstances. Defendants, however, will no doubt point to states like Arizona, Georgia, Hawaii, Indiana, Kansas, Louisiana, Maine, Mississippi, North Dakota, Oregon, Utah, Vermont, Washington, West Virginia, and Wisconsin, where court systems have authorized and undertaken the resumption of jury trials under certain circumstances. See https://www.justia.com/covid-19/50-state-covid-19-resources/court-operations-during-covid-19-50-state-resources/.

Although it is not known to the authors how many jury trials have been conducted in any of these states, how safely they have been carried out, or how each state is measuring safety, defendants in Massachusetts can be expected to argue that the Commonwealth’s more conservative approach is a form of state action that unreasonably deprived them of their due process rights. At least one federal district court has relied on a version of this argument in a habeas corpus petition to order that the state court set a prompt trial date or face dismissal. See Kurtenbach v. Howell, 2020 WL 7695578 (D.S.D. Dec. 28, 2020). In that case, the Court (Kornmann, J.) remarked that “[t]here is no pandemic exception to the Constitution.” Kurtenbach, 2020 WL 7695578 at *5, quoting Carson v. Simon, 978 F.3d 1051, 1060 (8th Cir. 2020). It seems reasonable to forecast that the Supreme Judicial Court will rule that its orders suspending jury trials were necessary in light of the public health emergency, but this is by no means certain. Perhaps equally uncertain is the resolution of this question by federal courts, which may ultimately be asked to review the SJC’s actions.

The third Barker factor is the defendant’s assertion of his speedy trial right. Although this necessarily entails a fact-specific inquiry, defendants can be expected to argue – not without basis – that an assertion of the speedy trial right in a period when jury trials are suspended is the quintessential exercise in futility. That the Supreme Judicial Court might accept such an argument, however, says little about how it will resolve the issue. Just as a criminal defendant  should perhaps not be expected to assert a right futilely, the prosecution cannot be faulted for not proceeding with a trial that by order of the SJC cannot be conducted. This balance of blamelessness merely underscores the novelty of applying the Barker analysis in a time of unprecedented suspension of jury trials.

In evaluating the fourth Barker factor – the extent to which a defendant has been prejudiced by the delay – courts must consider the interests protected by the speedy trial right. See Dirico, 480 Mass. at 507, quoting Barker, 407 U.S. at 532. These are to minimize “oppressive pretrial detention,” the anxiety of the accused, and prejudice to the defense. Dirico, 480 Mass. at 507. The defendant bears the burden of establishing prejudice. Dirico, 480 Mass. at 505. The question of prejudice is likely to be the one on which most speedy trial motions brought to address pandemic-related delay will turn. That is because the length of delay alone rarely leads to dismissal. See infra. This is particularly so when the delay is caused by a global public health emergency. That said, and as always, if a defendant can show that the delay has compromised the defense’s ability to contest the Commonwealth’s evidence, the fourth Barker factor could well justify dismissal.

A defendant who has been unable to post bail, or has been held without bail based on a finding of dangerousness under G. L. c. 276, § 58A, certainly has a basis to argue that prejudice has resulted from the delay of the trial. The argument would be especially powerful under Dirico’s “oppressive pretrial detention” prong if the prosecution’s case has weakened over time, or if the length of pretrial detention approaches the length of the sentence that the defendant likely would receive if convicted.      

In dicta in its June 20, 2020, decision in Commonwealth v. Lougee, 485 Mass. 70, 84 (2020), the Supreme Judicial Court acknowledged the looming due process issue presented by suspending jury trials. The Lougee Court observed that the delay caused by the pandemic and the Court’s orders responding to it had “yet to approach the length of delay that would trigger a due process analysis.” Left unanswered, however, is how long a delay would amount to a due process violation. Unsurprisingly, there is no case law that analyzes the issue in the context of a protracted public health emergency. And the reported cases analyzing the requirements of procedural and substantive due process provide the courts with only the most general guidance.

Substantive due process forbids the government from acting in ways that “shock[] the conscience” or interfere with rights “implicit in the concept of ordered liberty.” United States v. Salerno, 481 U.S. 739, 746 (1987). The standard of review applied by a reviewing court under substantive due process analysis varies depending on the nature of the right at stake. See Aime v. Commonwealth, 414 Mass. 667, 673 (1993), citing Salerno, 481 U.S. at 748-51. With respect to “fundamental” rights – and surely that would include the right to a speedy trial – courts “must examine carefully the importance of the governmental interests advanced and the extent to which they are served” by the challenged governmental order or regulation.  Id.  Courts typically will uphold those orders or statutes that are “narrowly tailored to further a legitimate and compelling governmental interest.’” Id.    

Thus, courts are likely to analyze a state moratorium on jury trials as a speedy trial issue, the outer limits of which are set by substantive due process doctrine. That is, the United States and Massachusetts constitutions surely will not tolerate a Barker analysis producing a result that “shocks the conscience.” It is conceivable, therefore, that a pandemic could last long enough – years, for example – that the delay itself could constitute prejudice, even if individual defendants could not establish prejudice under the more conventional analysis of Barker’s fourth prong.

Stating this proposition, of course, does not answer the central question of how long a pandemic-necessitated delay the United States and Massachusetts constitutions will tolerate. The analysis merely frames the question. There are not yet any reported Massachusetts trial court decisions addressing the application of either the Barker or general due process analysis to trial delays caused by the pandemic. At the time of publication, several federal district courts had been presented with speedy trial challenges based, at least in part, on delay caused by the COVID-19 pandemic. See, e.g., United States v. Tapp, 2020 WL 6483141 (E.D. LA November 4, 2020); United States v. Woolard, 2020 WL 6469952 (W.D. WA November 3, 2020); United States v. Zhukov, 2020 WL 6302298 (E.D.N.Y. October 27, 2020). None, however, has dismissed a case on speedy trial grounds related to the pandemic. Cf. United States v. Smith, 460 F. Supp. 3d 981, 984 (E.D. Cal. 2020) (“Almost every court faced with the question of whether general COVID-19 considerations justify an ends-of-justice continuance and exclusion of time has arrived at the same answer: yes.”). But cf. United States v. McCullough, 2020 WL 6689353 (W.D. Tenn. November 12, 2020) (travel restrictions imposed by pandemic do not justify prosecution’s request for delay). Because there is no closely analogous case law, courts will be inclined to turn to conventional speedy trial precedent, which, unfortunately, provides only loose analogies to the current public health emergency.

A review of Massachusetts speedy trial cases reveal none in which the length of the delay alone – without prosecutorial fault – has resulted in dismissal. Thus, in Commonwealth v. Butler, 464 Mass. 706 (2013), for example, the Supreme Judicial Court held that a delay of twelve years between the issuance of a district court complaint in 1991 and the defendant’s eventual trial on a rape charge in 2003 did not require dismissal, even though the Commonwealth’s negligence factored into the delay. Similarly, in Commonwealth v. Wallace, 472 Mass. 56 (2015), the SJC considered a delay of nine years between charge and trial in the case of two co-defendants. The Court concluded that the delay did not warrant dismissal in the case of the co-defendant who had fled to avoid prosecution, but did warrant dismissal of the case against the co-defendant who was held in federal custody for seven years before prosecutors moved to rendite him for trial. These decisions suggest that, because two of the Barker factors – the  cause(s) of the delay and the defendant’s assertion of his speedy trial rights – focus on the conduct of the parties, the mere fact of even protracted delay, without more, is unlikely to trigger dismissal.

Even if extended delay does not result in a due process violation and resulting dismissal, however, it has and will continue to affect the bail status of defendants held awaiting trial. On the one hand, the Supreme Judicial Court has made clear that the court must take into account the risks posed by COVID-19 if the bail determination could result in the defendant’s detention. See CPCS v. Trial Court, 484 Mass. 431, 435 (2020) (COVID risk constitutes changed circumstance for purposes of bail review); Christie v. Commonwealth, 484 Mass. 397, 401 (2020) (error for trial judge not to reconsider motion for stay of sentence in light of pandemic). Cf. Commonwealth v. Nash, 486  Mass. 394, 406 (2020) (“Our objective in Christie was to reduce temporarily the prison and jail populations, in a safe and responsible manner, through the judicious use of stays of execution of sentences pending appeal.”). On the other hand, the SJC has actually extended the period during which a defendant can be held without bail based on dangerousness. Although  G.L. c 276, § 58A provides that a defendant cannot be detained without bail for longer than 180 days, the SJC has held that the delay caused by the moratorium on jury trials is excluded from the calculation of that time period. See Lougee, 485 Mass. at 84-85. What is clear, however, is that recent SJC precedent establishes that a court’s bail decision during the COVID-19 pandemic should be made with special care, particularly given the heightened risk of contagion in the correctional context and the likelihood that trial for that defendant will be an unusually long way off.  

The Rule 36 Analysis

Primarily a rule of case management, Mass. R. Crim. P. 36 overlaps with but is “wholly separate” from constitutional speedy trial analysis. Dirico, 480 Mass. at 504, quoting Commonwealth v. Lauria, 411 Mass. 63, 67 (1991). Rule 36 dictates dismissal as a matter of  presumption if the defendant is not tried within one year of arraignment. Dirico, 480 Mass at.497. The rule, however, excludes delay that results from a number of specified occurrences. See Mass. R. Crim. P. 36(b)(2)(A)-(H). The Commonwealth bears the burden of establishing that the delay in question is excluded from the Rule 36 calculation. Dirico, 480 Mass. at 497, citing Commonwealth v. Spaulding, 411 Mass. 503, 504 (1991). Among the express exclusions in Rule 36 are periods of time about which the court finds that “the ends of justice served by granting of the continuance outweigh the best interests of the public and the defendant in a speedy trial.” Mass. R. Crim. P. 36(b)(2)(F).

The Supreme Judicial Court has also discerned in Mass. R. Crim. P. 36 a common-law basis for exclusion. Even if delay is not expressly excluded by the provisions of Rule 36(b)(2), it still may be excluded from the Rule 36 calculation if the defendant “acquiesced in, was responsible for, or benefitted from the delay . . . .” Dirico, 480 Mass. at 498-499. This basis for exclusion is rooted in a defendant’s “obligation . . . to ‘press their case through the criminal justice system.’” Commonwealth v. Graham, 480 Mass. 516, 524 (2018), quoting Lauria, 411 Mass. at 68. The precise limitations of this doctrine remain both fact-specific and surprisingly complex.

That said, certain principles have emerged from recent cases. First – wholly apart from the express exclusions in Rule 36(b)(2)(F) – if “a defendant agrees for the first time to schedule a previously unscheduled event, there is no ‘continuance’ or ‘delay’ that can be excluded under rule 36.” Graham, 480 Mass. at 533. Second, “unanticipated events that the parties . . . agree to work around” are excluded from the Rule 36 computation. Graham, 480 Mass. at 533.

In its March 13, 2020 order, the Supreme Judicial Court propounded a statewide finding under Rule 36(b)(2)(F) that the indefinite postponement of jury trials “serve[s] the ends of justice and outweigh[s] the best interests of the  public and the criminal defendant in a speedy trial . . . .” See Lougee, 485 Mass. at 72 (SJC’s statewide order constitutes finding under Rule 36(b)(2)(F)). This appears to be the first time that the SJC has made a finding – under either Rule 36 or constitutional principles – applicable to all criminal cases pending in the Commonwealth. That it was the SJC that entered the finding in the context of a global pandemic, however, makes it unlikely that a subsequent SJC would invalidate it, at least as an interpretation of Rule 36. In this context – unlike that of the speedy trial analysis – federal courts are not likely to be called upon to review the SJC’s interpretation of a Massachusetts rule of criminal procedure.

Conclusion

A more prolonged suspension of the jury-trial right in the Commonwealth will eventually trigger a due process analysis. That would require courts to determine at what point continued delay of an individual jury trial either prejudices the defendant – under the Barker analysis – or “shocks the conscience,” as prohibited by substantive due process. The COVID-19 pandemic is a nearly unprecedented public health emergency, and one about which no one alive today can draw on experience. The constitutional speedy trial analysis is familiar and predictable; its application to the extraordinary situation that currently prevails is anything but.

David A. Deakin is an associate justice of the Massachusetts Superior Court. Before taking the bench in 2019, Judge Deakin was deputy chief and acting chief of the Criminal Bureau in the Massachusetts Attorney General’s Office. 

Janet L. Sanders is a Superior Court Justice. Before her appointment in 2001, she  worked as a criminal defense lawyer and then served on the district court beginning in 1995.  


Practice Tips for Navigating the Disciplinary Investigation Process Before the Office of Bar Counsel

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by Heather LaVigne

Practice Tips

Introduction

Massachusetts attorneys may find themselves involved in disciplinary investigations conducted by the Office of Bar Counsel, and disciplinary proceedings before the Board of Bar Overseers (“BBO”), either as the subject of the proceedings, or as counsel to a lawyer facing misconduct allegations. This article provides an overview and practice tips for navigating disciplinary investigation by bar counsel. It is not a substitute for reading the Rules of the Board of Bar Overseers and Supreme Judicial Court Rules 4:01 and 2:23 governing bar discipline procedures. Additionally, practitioners should consult the BBO’s website, which contains the BBO’s policies and guidance relating to bar discipline; the Board’s treatise, “Massachusetts Bar Discipline, History, Practice, and Procedure”; and information and orders relating to bar discipline practice in light of the COVID-19 pandemic.

The Board of Bar Overseers and Office of Bar Counsel

The BBO has a volunteer board and a full-time staff. It is charged with administering the bar disciplinary system and the attorney registration system. The BBO appoints hearing officers to conduct disciplinary proceedings and to make recommendations on discipline to the BBO. The BBO’s Office of General Counsel advises and assists the BBO and hearing officers throughout the process.

The Office of Bar Counsel is charged with investigating allegations of attorney misconduct and, if warranted, prosecuting disciplinary charges before the BBO.  Within bar counsel’s office, the Attorney Consumer Assistance Program (“ACAP”) serves as the office’s intake unit. In carrying out its duties, ACAP may be able to resolve minor issues or may refer the complaint to be opened for formal investigation.

Representation by Counsel in Bar Discipline Proceedings

While there is no right to counsel in bar discipline proceedings, it is recommended that attorneys facing allegations of misconduct exercise their ability to choose to be represented by counsel.  Attorneys who are under investigation are referred to as “respondents” and their counsel as “respondent’s counsel.” For attorneys who cannot afford counsel, the BBO’s General Counsel can assist in locating pro bono representation.  Counsel must be licensed to practice law in Massachusetts to appear in a bar discipline proceeding. In some situations, a lawyer licensed in another jurisdiction may request permission to appear. 

Investigation by the Office of Bar Counsel

The Complaint and Response

It is important that attorneys are responsive, cooperative, and forthcoming at all stages of bar counsel’s investigation.  The disciplinary process begins when bar counsel first receives information about alleged attorney misconduct. Typically, information about alleged misconduct comes from:

  • A client, opposing party, or lawyer who contacts the office by phone or in writing;
  • Banks who report dishonored checks drawn on IOLTA accounts;
  • The BBO registration department, which reports attorneys who pay registration fees from an IOLTA account;
  • Courts and tribunals in any jurisdiction who may report concerns about attorneys appearing before them in professional and personal capacities; and
  • Other disciplinary authorities.

Bar counsel may also open an investigation based on information from any source, which may include newspapers, court decisions, and internet postings that come to bar counsel’s attention.

Many concerns about attorney conduct, such as a failure to return a phone call or a delay in providing the client their file, can be resolved by ACAP without opening a formal investigation.  It is important that attorneys who receive calls from ACAP staff respond to those calls, as this may resolve the issue to the client’s satisfaction and avoid the need to open a formal investigation. For serious allegations, the matter is assigned to an assistant bar counsel to begin a formal investigation. The purpose of the investigation is to gather facts to determine whether the allegations are supported and, if so, whether formal disciplinary charges are warranted. 

The assistant bar counsel informs the respondent of the complaint, in writing, at the primary address listed on the respondent’s annual registration statement.  As a result of remote work protocols due to the COVID-19 pandemic, this notice may be sent to the respondent’s registered email address.  It is, therefore, important that attorneys keep their email and mailing addresses up to date with the BBO registration department and check those mailboxes regularly.  If there is a written complaint or some other writing (such as a dishonored check notice), that writing is typically provided to the respondent at this time. If the complaint is brought by an individual, that person is typically referred to as the “complainant.”

Respondents may decide to hire an attorney to prepare the response.  While there is no formal process for entering an appearance, respondents’ attorneys should alert bar counsel that they represent the respondent in the matter. An email to the assistant bar counsel handling the case suffices.

The respondent must respond to the complaint in writing, within 20 days.

Key Tip: It is imperative that the response be provided in a timely manner, as failure to respond itself constitutes misconduct that may result in the issuance of a subpoena or the administrative suspension of a respondent’s license to practice law. Contact the assistant bar counsel promptly if an extension is required.  Except in exigent circumstances, the first request for a reasonable extension typically will be granted. 

In the letter to the respondent, bar counsel will ask the respondent to address the allegations in the attached complaint and may also ask the respondent to address specific issues and provide certain documents such as a fee agreement, IOLTA records, billing statements, or an entire client file. 

The response should provide a narrative explanation of the respondent’s version of events. It must not simply admit or deny allegations. Further, the respondent should not make inflammatory statements about the complainant in the response. The focus of the response should be to explain the matter to bar counsel, and to correct any inaccuracies that the respondent believes exist in the complaint. 

While the respondent should provide whatever information he or she thinks will aid bar counsel in understanding the matter, the respondent should pay attention to the specific requests made by bar counsel as these will often indicate the main areas of concern. 

Key Tip: Respondents must provide the documentation bar counsel specifically requests.  Respondents should also provide any additional documentation that supports their version of events. If the respondent is unclear as to what documentation bar counsel requests, respondent (or respondent’s counsel if represented) should contact the assistant bar counsel for clarification. Similarly, if the respondent does not have or is working on obtaining a document, the respondent should indicate that in the response.

The respondent should organize the response and supporting documentation with exhibit designations or Bates numbers and refer to those designations in the narrative response. 

In the response, the respondent may suggest a certain outcome, such as closing the file. In cases of more serious misconduct, the respondent’s counsel may advise the respondent that the investigation is likely to result in a finding of misconduct and suggest a resolution in the answer.

The answer typically will be provided to the complainant, in full, for comment. Therefore, if the respondent provides documents that he or she believes should be withheld from the complainant, the respondent must specifically and clearly make such a request. At least initially, bar counsel usually will agree to withhold documents such as personal medical information or bank statements but will not often agree to withhold an entire response. The complainant’s comments typically are not provided to the respondent unless the assistant bar counsel believes they warrant an additional response.

Bar Counsel’s Additional Investigatory Options

Bar counsel may also obtain information from other sources. These sources include, but are not limited to, publicly available court filings, information obtainable by a Freedom of Information Act or Public Records Law request, interviews of potential witnesses, and information from banks and other entities, pursuant to a subpoena approved by a reviewing member of the Board.  A respondent should not, however, decline to produce a requested document on the grounds that bar counsel can locate it elsewhere. During the investigation, the respondent is not entitled to copies of the documents and information bar counsel obtains. At this stage, the respondent has no right to issue discovery or request the issuance of subpoenas but will be permitted discovery if formal charges are brought. 

As part of the investigation, bar counsel may also decide to take the respondent’s statement under oath. A statement under oath is similar to a deposition. The respondent will be sworn in and the assistant bar counsel will likely show the respondent exhibits and ask questions about them. The statement will be recorded, and if warranted, may later be transcribed and sent to the respondent. The respondent may choose to be represented by counsel at a statement under oath.  The statement under oath may be scheduled with the participation of the respondent or by subpoena in the case of non-cooperating respondents.

Key Tip:  If a subpoena to appear has not already been issued, the failure to appear can result in a subpoena requiring the respondent to appear on a new date. Especially in circumstances where a subpoena to appear has already been issued, a respondent’s failure to appear is likely to result in the immediate administrative suspension of the respondent’s license to practice law without hearing. Failure to be truthful during a statement under oath may be grounds for additional discipline beyond what is warranted for the underlying misconduct. Additionally, if there is a hearing in the matter, the respondent’s statement under oath may be used as substantive evidence and to impeach the credibility of the respondent’s hearing testimony. 

Depending on the circumstances, the assistant bar counsel may be able to discuss possible resolutions to the investigation with the respondent or respondent’s counsel after this meeting.

Resolutions Without Public Discipline

Once bar counsel has completed the investigation, there are several possible resolutions short of disciplinary charges. Bar counsel may determine that the file should be closed with no disciplinary action. In some cases, bar counsel may close a case with a warning concerning conduct that may not warrant disciplinary charges. This is also considered closed without disciplinary action. For minor misconduct that can be remediated through education or counseling, bar counsel may offer to enter into a diversion agreement with the respondent. Pursuant to the diversion agreement, the respondent will pledge to engage in certain remedial efforts which may include mental health counseling, anger management counseling, career/practice assistance, trust account training, continuing legal education, and ethics courses. Bar counsel provides the diversion agreement to a reviewing Board member for approval. If approved, the respondent must complete the terms of the diversion agreement or be subject to discipline.

Key Tip: Even before the resolution stage, respondents’ counsel may serve their clients well by suggesting they contact Lawyers Concerned for Lawyers and the Law Office Management Assistance Project when the situation so warrants.

Bar counsel may also propose to resolve the file by admonition, which is considered private discipline. An admonition may be appropriate when the misconduct did not cause harm. An admonition must be approved by a reviewing Board member. If approved, the complainant is informed that the respondent has been admonished, but it is otherwise confidential. If bar counsel believes an admonition is warranted, but the respondent does not agree, bar counsel will present the admonition to the reviewing Board member. If approved, the respondent will be notified that he or she has 14 days to request a hearing on the admonition. The hearing is held on an expedited basis before a special hearing officer and remains confidential.

Agreements to Public Discipline

For more serious misconduct, bar counsel may offer to stipulate to public discipline in the form of a public reprimand, a suspension, or a disbarment. If the respondent agrees, the stipulation must be presented to the BBO for approval. Included with the stipulation are bar counsel’s petition for discipline explaining the charges, the respondent’s answer, and a stipulation to the facts and rule violations. 

Stipulations prior to the filing of a petition for discipline is often preferable to many respondents because it provides the respondent with some input as to what becomes part of the public disciplinary record. For example, bar counsel may agree to omit some disputed issues from a petition for discipline filed with a stipulation that would otherwise appear in a petition for discipline filed in a contested disciplinary proceeding. A respondent, however, should not expect bar counsel to agree to a sanction that is less severe than the typical sanction for the misconduct in the stipulation. 

Key tip: If a respondent has evidence of mitigating circumstances that he or she believes warrant consideration, the respondent should provide that evidence to bar counsel as early as possible, and certainly by the time settlement discussions begin.

Once a stipulation is submitted to the BBO, the BBO can accept or reject the stipulation. If the BBO rejects the stipulation, it will notify the parties and provide 14 days to submit briefs in support of the stipulation. In case the BBO does not accept the stipulation, respondent’s counsel should consider whether to reserve the right to dispute the facts and rule violations at a future hearing or whether the respondent and bar counsel will be bound to the facts and rule violations in the stipulation. Such language must be in the stipulation documents presented to the BBO.

Additionally, a respondent under investigation cannot simply resign in order to avoid the disciplinary process. A respondent may decide, however, to waive hearing and agree to a resignation as a disciplinary sanction for misconduct warranting a suspension or a resignation and disbarment for misconduct warranting disbarment. Further, a respondent who can no longer practice due to a physical or mental impairment may consider discussing disability inactive status with bar counsel.

If the parties cannot come to an agreement on discipline, and bar counsel has determined that public discipline is warranted, bar counsel will initiate public disciplinary proceedings. Public proceedings before the BBO will be the subject of a forthcoming Practice Tips article.

Conclusion

Throughout any disciplinary investigation, respondents would do well to remember that the mission of the Office of Bar Counsel is to protect the public from unethical conduct by attorneys and to preserve and enhance the integrity and high standards of the bar.  As a result, cooperation in the investigative process is key, and failing to respond appropriately to bar counsel’s requests, and/or to participate in each stage of the investigative process, can only result in additional adverse action.  Respondents should also review their malpractice insurance policies, as many provide at least some coverage for representation in disciplinary proceeds.  Respondents’ counsel provide a valuable service to respondents by helping them navigate the process, and in negotiating a resolution with bar counsel.

Heather L. LaVigne is an Assistant Bar Counsel with the Office of Bar Counsel of the Massachusetts Board of Bar Overseers.  She previously worked as an administrative hearing officer with the Department of Public Utilities and as a litigation associate at Choate, Hall & Stewart, LLP.  She is a 2006 graduate of Boston College Law School and a 2003 graduate of Clark University.


Students For Fair Admissions v. Harvard: Affirmative Action, Race-Based Policies, and Preference Falsification

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by Natasha Varyani

Viewpoint

In November 2020, the U.S. Court of Appeals for the First Circuit upheld the district court’s finding that Harvard University’s admissions policy comports with the law relating to affirmative action in higher education. Students For Fair Admissions v. Harvard is a piece of a larger effort directed by activist Edward Blum to dismantle the existing law on affirmative action. The case is one of three currently active lawsuits and the only one involving a private university, each an attempt by Students For Fair Admissions (“SFFA”) to reach the newly recomposed U.S. Supreme Court.  At a time in our nation’s legal and cultural history when systemic racism is being examined in our legal discourse in myriad ways, the context surrounding the First Circuit’s decision in the Harvard case is essential to understanding what the ruling will mean for race-conscious admissions policies.

The Harvard case was manufactured by SFFA in the wake of the Supreme Court upholding higher education affirmative action policies in several high profile cases. Most recently, the Supreme Court twice reviewed and ultimately upheld the race-conscious admissions policies of the University of Texas in Fisher v. University of Texas. There, Abigail Fisher, a white student, did not prevail. After Fisher, SFFA identified a new strategy: to find a minority group disadvantaged by affirmative action policies. With a focus on Asian families with strong academic achievement and ambitious goals for their education, the plaintiffs in SFFA’s current cases bring a new perspective to challenging the use of race in admissions.  This new perspective relies upon many of the stereotypes and biases already culturally prevalent about the “model minorities” and may very well be SFFA’s best chance yet to challenge the constitutionality of using race as a factor in admissions.

SFFA’s lawsuits are but one part of cultural grappling with the question of affirmative action in higher education admissions policies. In 2019, the medical school at Texas Tech University came to an agreement with the U.S. Department of Education’s Office of Civil Rights under which it would stop using race as a factor in admissions. The agreement, reached 14 years after the Center for Equal Opportunity filed a complaint with the U.S. Department of Education, effectively declared the Trump administration’s position on affirmative action: namely, that race should not be a factor used in admissions. Betsy DeVos, as Trump’s secretary of education, made this position clear, signaling a policy position that echoed some of the tenets of the president’s promise to “Make America Great Again” and return the United States to some image of its supposed former version of itself.

Affirmative action suffered another blow in November of 2020, just days before the First Circuit announced its decision in the Harvard case, as California voters considered Proposition 16, an initiative that would have repealed the law prohibiting state-funded institutions of higher education from considering race as a factor in admissions. Proposition 16 would essentially have allowed for a return of affirmative action programs, and it came to the ballot in an election with historic voter turnout (and during a pandemic). Yet, despite the reputation of being a progressive state, Proposition 16 was rejected by more than 57%, or more than 9 million votes. It is worth noting that California is one of the most racially diverse jurisdictions in the nation, yet even in localities where liberal voting blocs prevailed in the presidential election, those same voters did not favor the progressive position on the issue of affirmative action.

One lens through which to view the outcome on Proposition 16 involves the concept of “preference falsification,” which has been used to understand and explain the way that groups collectively move and respond in social and political situations.  The concept, developed in the mid-1990s by the economist and political scientist, Timur Kuran, has found renewed currency in political discourse relating to affirmative action and race in the modern, polarized political climate. Preference falsification is the act of misrepresenting one’s preferences because of perceived social pressures. “It aims,” Kuran wrote, “specifically at manipulating the perception of others about one’s motivation.”

This concept may explain why some liberal and progressive counties in California rejected affirmative action. Where individuals may perceive that the socially acceptable position is to favor affirmative action and its support of minority students in admissions, they may still cast their secret ballot in favor of their personal preference to benefit their own family and students.  Nevertheless, according to Kuran’s historical research, a critical mass of preference falsification can lead to a cascade effect, where what is collectively considered to be socially acceptable changes much more rapidly than expected.

This brings us back to the First Circuit’s decision in the Harvard case. Though the decision may be lauded as a victory for proponents of affirmative action policies and the use of race in admissions, a closer consideration of the issue in a broader context reveals that the Harvard decision is unlikely to be the last word on the subject, even if the case reaches the Supreme Court.  And even though the issue of affirmative action is being considered in the midst of both a profound social justice movement and a dramatic change in presidential administrations, a majority of the current justices of the Supreme Court would appear to be less inclined to uphold race-based admissions policies than any court since the first wave of the Civil Rights movement in the 1960s. This, combined with a global pandemic that has fundamentally changed the ways in which social groups interact with one another, make the concept of preference falsification both more resonant and unpredictable than ever. The First Circuit has ruled, but little remains settled.

Natasha N. Varyani is an Associate Professor at New England Law | Boston. She teaches in the areas of Property, Tax and Critical Race Theory.  Before coming to academia, Professor Varyani advised mulit-jurisdictional entities on their tax positions. (Professor Varyani is of South Asian descent and was not accepted into her first choice undergraduate institution).


Warrant-Based Searches Do Not Override Statutory Consent Requirement for OUI Blood Draws

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by Emma Quinn-Judge

Case Focus

A licensed driver who uses the public roadways in Massachusetts has agreed—implicitly—to submit to blood alcohol testing (BAC) or a breathalyzer test if arrested for operating under the influence of alcohol (OUI). If the driver refuses to take a BAC test, the driver’s license is suspended for 180 days or longer. While there are consequences to declining testing, the Commonwealth’s implied consent statute is unequivocal: Where a driver declines a blood test, “no such test . . . shall be made.”

Drawing a blood sample is a search and seizure for constitutional purposes, because individuals have an expectation of privacy in their blood. However, both the Supreme Court of the United States and the Supreme Judicial Court (SJC) have long held that law enforcement may draw blood without consent where there is either a search warrant supported by probable cause, or exigent circumstances justifying a warrantless search. Schmerber v. California, 384 U.S. 757, 767 (1966); Commonwealth v. Angivoni, 383 Mass. 30, 32 (1981).

In Commonwealth v. Bohigian, 486 Mass. 209 (2020), the SJC considered whether, in an OUI prosecution, a BAC test performed without consent, but with a warrant, was admissible. In a 4-2 decision, the SJC concluded that the implied consent statute “flatly and unambiguously prohibits blood draws without consent,” and as such, BAC evidence obtained by a warrant is inadmissible. Id. at 214.

Following an accident in which he seriously injured another driver, Charles Bohigian refused to consent to a blood draw. A State Trooper obtained a warrant to draw Bohigian’s blood. After being presented with the warrant, Bohigian refused again to have his blood drawn. Troopers ultimately held down his arms and legs while a nurse drew his blood. A chemical analysis of his blood revealed that Bohigian’s BAC was more than twice the legal limit. See G. L. c. 90, § 24 (1)(a)(1). Bohigian was charged with and convicted of, among other things, OUI.

General Laws c. 90, § 24(1)(f)(1) provides that an individual operating on a public road “shall be deemed to have consented to submit to a chemical test or analysis of his breath or blood in the event that he is arrested for operating a motor vehicle while under the influence of intoxicating liquor.” If, however, “the person arrested refuses to submit to such test or analysis [and is informed of the consequences of such refusal], no such test or analysis shall be made.” G.L. c. 90, § 24(1)(e)(1) makes such tests admissible in OUI prosecutions, “provided . . . that if such test was made by or at the direction of a police officer, it was made with the consent of the defendant.” Thus, “[t]ogether the two subsections provide that, if an arrestee consents to a BAC test, the results are presumptively admissible at trial for a charge of OUI under § 24(1)(a).” Bohigian, 486 Mass. at 212.

Prior appellate decisions suggested that the statutory framework provided a right of refusal that was independent of, and in addition to, any constitutional requirements. In Commonwealth v. Davidson, 27 Mass. App. Ct. 846, 848 (1989), the Appeals Court noted that “[w]here there is probable cause to believe that a defendant has been operating a vehicle while under the influence of intoxicating liquor, the defendant has no constitutional right to refuse a blood test or breathalyzer test,” but rather, the “right of refusal he does have stems from the statute, which requires that a test not be conducted with his consent.” In Commonwealth v. Dennis, 96 Mass. App. Ct. 528, 532 (2019), the Appeals Court reiterated that “a requirement of consent is imposed by statute even when, because there is probable cause and exigent circumstances, one is not imposed by the Federal Constitution.”

Davidson and Dennis, however, both concerned how to evaluate consent. Neither case involved a situation in which police officers had obtained a warrant for a blood draw after an unequivocal refusal. Bohigian squarely presented that question for the first time and, following the reasoning and statutory interpretation in these earlier cases, the SJC held that the “plain statutory language . . . creates a blanket prohibition against blood draws without consent in the context of OUI prosecutions.” Bohigian, 486 Mass. at 213. While an individual’s blood may be drawn pursuant to a warrant in other contexts and for other purposes, the right of refusal in OUI cases is absolute.

The SJC’s decision treated constitutional rights as a floor or baseline for individual rights. “It is well within the Legislature’s authority to provide additional privacy protections over and above those granted by the Federal Constitution and the Massachusetts Declaration of Rights.” Bohigian, 486 Mass. at 216. Viewing the statute within this analytical framework, the Court examined the plain language, giving weight to Davidson and Dennis, which articulated a longstanding interpretation of the statutory language. Indeed, the SJC noted that the legislature had repeatedly amended the relevant statutory provisions since Davidson was decided in 1989, without ever changing the consent requirements. The Court also pointed out that the Massachusetts statute was adopted just one year after the Supreme Court decided Schmerber v. California, 384 U.S. 757 (1966), implying that the legislative choice to require consent was made knowingly in the aftermath of a landmark Supreme Court decision establishing that blood draws are permissible with a warrant or under exigent circumstances. Moreover, the Court noted that other states with similar statutory schemes have interpreted them to categorically bar blood draws without consent. Finally, the SJC emphasized that there are valid public policy reasons to strike the balance the legislature struck, including the interest in avoiding violent confrontation and the risk of injury to patients and health care providers.

Justice Lowy, joined by Justice Kafker, dissented on the ground that the decision of a “neutral and detached magistrate” to issue a warrant upon a finding of probable cause, “bears no relation to the suspected offender’s consent, nor does it implicate the regulatory apparatus of implied consent or its effects on evidentiary admissibility.” Bohigian, 486 Mass. at 221. In other words, the dissent viewed constitutional provisions regarding unlawful search and seizure not as the minimum level of protection for individual rights, but rather as an exception to the rights set forth by statute. Rejecting the majority’s statutory interpretation, the dissent focused on the statute’s overriding public safety purpose: “[F]or every hemophiliac, diabetic, or person on anticoagulant medication who is arrested for OUI, or for every medical worker who is injured by a sharp needle when blood is drawn . . . immeasurably more danger results from permitting repeat OUI offenders to get behind the wheel.” Bohigian, 486 Mass. at 235.

In cases where a defendant unequivocally refuses to take a breathalyzer or BAC test, the implied consent statute establishes an unambiguous standard: “[N]o such test or analysis shall be made.” G.L. c. 90 § 24(f)(1). The civil penalties for refusal are not insignificant: They include immediate license suspension for at least six months per test (and for substantially longer periods for those with a record of prior OUI convictions), with no right to reinstatement or a hardship permit during the period of suspension, as well as vehicle impoundment and related costs. The statute provides that the minimum periods of license suspension apply to each refusal, with suspensions to run concurrently, not consecutively “as to any additional suspension periods arising from the same incident, and as to each other.” Id.

Bohigian has simplified the legal questions for a driver who refuses a blood alcohol test. Because not all individuals refuse testing as clearly as Mr. Bohigian did, whether a driver—especially a highly-intoxicated or seriously-injured driver—has legally consented to a blood test is likely to remain contested in many cases. The answer to that question will still require a court to analyze whether the driver consented voluntarily, within the meaning of the Fourth Amendment. And where the Fourth Amendment is satisfied, a court will need to examine whether an individual has met the lower statutory standard for consent discussed in Dennis and Davidson (i.e., the “traditional indicia of waiver of rights”). While Bohigian may be the final word on refusal, it is unlikely to be the last word on consent.

Emma Quinn-Judge is a partner at Zalkind Duncan & Bernstein LLP, where she focuses on criminal defense, employment litigation, and appeals.


One Year Later: Massachusetts’ COVID-19 Tolling Orders in Civil Cases

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Heads Up

On March 17, 2020, the Massachusetts Supreme Judicial Court (the SJC) issued the first of several orders tolling civil statutes of limitations and other statutory deadlines due to the COVID-19 pandemic. While the SJC’s tolling orders laudably intended to essentially freeze the rights of all parties during the pandemic, the orders will challenge civil practitioners for years to come. One year later, few Massachusetts courts have yet substantively addressed the myriad issues arising from the SJC’s tolling orders. This article presents a non-exhaustive illustration of some of the issues that are likely to arise and, based on a review of judicial interpretations of tolling orders in Massachusetts and beyond, explores how courts may interpret the Massachusetts tolling orders when issues do arise.

Relevant Background

Due to COVID-19, the SJC tolled all Massachusetts civil statutes of limitations effective March 18, 2020. See March 17, 2020 Order (“First Tolling Order”). The SJC further ordered “all [other] deadlines set forth in statutes” tolled effective March 17, 2020 “[u]nless otherwise ordered by the applicable court.” Id. Citing “public health concerns regarding the COVID-19 (coronavirus) pandemic,” the SJC issued this tolling order “pursuant to its superintendence authority,” an apparent reference to Mass. Gen. Laws c. 211, § 3 (statute reflecting the SJC’s “general superintendence” authority over all inferior courts). Thereafter, the SJC issued three subsequent orders further tolling civil statutes of limitations and other statutory deadlines between March 17, 2020 and June 30, 2020, when the tolling period ended. See Orders dated April 1, 2020 (“Second Tolling Order”); May 4, 2020 (“Third Tolling Order”); and July 1, 2020  (“Fourth Tolling Order”) (collectively, the “Tolling Orders”). In total, the SJC tolled limitations periods and other statutory deadlines for 106 days in 2020.

Challenges for Practitioners

The Tolling Orders necessitate careful calculation of limitations periods and other statutory deadlines in disputes governed by Massachusetts law. Practitioners and parties must now generally add to an applicable limitations period another 106 days due to the Tolling Orders, an issue which alone is likely to result in problems and disputes concerning whether claims are time-barred. Causes of action which accrued between March 17, 2020 and June 30, 2020 (and thus may be subject to tolling, but for a period less than 106 days) will necessitate particularly careful review. An incorrect calculation may extinguish the rights of parties. An Ohio federal court, for example, has held that the failure to correctly calculate extended deadlines due to COVID-19 tolling orders did not constitute “excusable neglect” because attorneys are “presumed to know the… local rules and requirements of practice… especially when filing deadlines are involved.” In re Somogye, 2020 WL 4810805, *14-15 (N.D. Ohio July 28, 2020). Massachusetts courts would likely reach a similar result. See Goldstein v. Barron, 382 Mass. 181, 186 (1980) (“A flat mistake of counsel about the meaning of a statute or rule may not justify relief: relief is not extended to cover any kind of garden-variety oversight” including “[t]he misapprehension of … counsel resulting in a delayed filing”)(internal quotations omitted). Accord Pasquale v. Finch, 418 F.2d 627, 629-630 (1st Cir. 1969) (excusable neglect does not “cover any kind of garden-variety oversight.”).

Where the statutes of limitation are longer—for example, claims involving consumer protection under Chapter 93A (4 years), contracts (generally 6 years), or obsolete mortgages (35 years in some cases)—the Tolling Orders will have a long-lasting effect, even where no other tolling (e.g., contractual or equitable) applies. And, suits brought in foreign courts but governed by Massachusetts law—e.g., contract disputes with Massachusetts choice-of-law provisions—may cause difficulty for tribunals lacking familiarity with the Tolling Orders. Plaintiffs may shop for a Massachusetts forum to revive otherwise time-barred claims whereas defendants may seek to transfer claims brought in Massachusetts to other jurisdictions or challenge a Massachusetts choice of law to avoid the application of the Tolling Orders and possibly to bar claims altogether.

Federal courts may apply the Tolling Orders to Massachusetts, but not federal, claims. Federal and state claims predicated on the same alleged wrongful conduct (e.g., Title VII and M.G.L. c. 151B) may have different statutes of limitations due to the Tolling Orders. See Willard v. Indus. Air, Inc., 2021 WL 309116, *3 (M.D.N.C. Jan. 29, 2021) (limitations period to file Title VII claim governed by federal law and not extended by state tolling order). And, it is unclear whether a federal court will adopt the Tolling Orders where Congress failed to set a statute of limitations (e.g., § 1983 claims). See Loc. 802, Associated Musicians of Greater New York v. Parker Meridien Hotel, 145 F.3d 85, 88 (2d Cir. 1998) (“Because Congress did not provide a statute of limitations for suits brought under [Section] 301 [of the Labor Management Relations Act], this Court determines the statute of limitations for the federal cause of action by looking to the most appropriate state statute of limitations.”).

The Tolling Orders will also likely result in prolonged exposure for defendants. Although the statute of limitation under the FLSA is either two or three years for willful conduct (with each pay period a separate violation) (29 U.S.C. § 255(a)) and three years under the Massachusetts Wage Act (M.G.L. c. 149, § 150), the Tolling Orders may cause up to 106 days of increased liability for improper payment of wages during the COVID-19 pandemic. Because wage claims are often class actions, the potential liability may be significant, and the deadline for class members to opt-in may also be equitably tolled due to COVID-19. See Baxter v. Burns & McDonnell Eng’g Co., 2020 WL 4286828, *3 (D. Md. July 27, 2020) (although not considering any tolling order, equitably tolling deadline to opt-into class action based on COVID-19).

It is unclear whether the Tolling Orders extend statutes of limitation contractually shortened by the parties, Zamma Canada Ltd. v. Zamma Corp., 2020 WL 7083940, *7 (E.D. Va. Dec. 3, 2020) (although parties contracted for shortened statute of limitations, COVID-19 tolling orders extended limitations period), or non-statutory deadlines. Compare Cantu v. Trevino, 2020 WL 6073267, *5 (Tex. Ct. App. Sept. 24, 2020) (COVID-19 tolling orders did not extend non-statutory deadlines such as time to perfect appeal in civil case) with Haddad v. Tri-County A/C & Heating, 2020 WL 7753988, *3 (Tex. Ct. App. Dec. 30, 2020) (COVID-19 tolling orders likely automatically extended deadline to perfect appeal).

Problematically, the SJC’s orders tolling “all deadlines set forth in statutes” will likely not toll all statutory deadlines. For example, Massachusetts statutes of repose impose an absolute time bar and may not be tolled for any reason. See Stearns v. Metro. Life Ins. Co., 481 Mass. 529, 533 (2019). Statutes of repose exist in a variety of contexts, including construction, professional liability, and product liability matters. The Tolling Orders likely do not extend repose periods. Indeed, in a decision issued after the Tolling Orders, the SJC reaffirmed that statutes of repose are not subject to any tolling and did not reference the Tolling Orders. See D’Allessandro v. Lennar Hingham Holdings, LLC, 486 Mass. 150, 157 (Nov. 3, 2020) (each phase of a condominium project constitutes a separate “improvement” under M.G.L. c. 260, § 2B).

Enterprising (and well-funded) counsel may also attempt to directly challenge the Tolling Orders, particularly where high-exposure claims like class actions may be otherwise time-barred. For example, to the extent that the Tolling Orders arise from the SJC’s superintendence authority as codified in M.G.L. c. 211, § 3, that statute expressly precludes the SJC from acting to “supersede any general or special law” except in a “case or controversy” before it—a circumstance not present when the SJC issued the Tolling Orders. Arguably, an effort by the SJC to override legislation setting applicable limitations or repose periods outside of an actual case or controversy may be susceptible to separation of powers or other challenges. See, e.g., Committee for Public Counsel Servs. v. Chief Justice of Trial Court, 484 Mass. 431, 450 (2020) (limiting SJC’s superintendence power under c. 211, § 3, holding parole board retains discretion to revise custodial sentences notwithstanding COVID-19 Tolling Orders). Ultimately, the authority to issue the Tolling Orders may derive solely from the SJC’s constitutional or inherent superintendence powers, the contours of which are not entirely apparent. See In re DeSaulnier, 360 Mass. 757, 759 (1971) (referencing “the inherent common law and constitutional powers of this court, as the highest constitutional court of the Commonwealth, to protect and preserve the integrity of the judicial system and to supervise the administration of justice” as separate and distinct from “the supervisory powers confirmed to this court by G.L. c. 211, s[ection] 3”). See also Commonwealth v. Lougee, 485 Mass. 70, 85 (2020) (Lenk, J., concurring) (“[W]e should acknowledge with some humility that our [tolling] orders [issued under the SJC’s superintendence powers] were not as clear as they might have been” in that they did not expressly reference delays caused by COVID from statutory time limits on pretrial detention). While unlikely the SJC would deem its own orders legally infirm, another state or federal court presented with the issue could—further confusing the issue going forward—or may decide to refer or certify the issue as a result of the uncertainty.

The Massachusetts Legislature may codify the Tolling Orders to provide certainty for civil litigants in the Commonwealth. While such retroactive legislation could itself be susceptible to challenge, presumably Massachusetts courts could uphold appropriately-drafted legislation in light of the SJC’s issuance of the Tolling Orders and the extraordinary circumstances presented by COVID-19. See Embry v. President & Fellows of Harvard College, 32 Mass.L.Rptr. 430, *4 (Mass. Super. Ct. Dec. 10, 2014) (retroactively applying statute of limitations in child sexual abuse cases; enactment of extended statute of limitations constituted “extraordinary circumstance” warranting relief). Massachusetts courts may also extend statutes of limitation on a case-by-case basis under the doctrine of equitable tolling, although such relief is rare. See, e.g., Halstrom v. Dube, 481 Mass. 480, 485 (2019) (“Equitable tolling is to be used sparingly, and the circumstances where tolling is available are exceedingly rare”)(quotation omitted).

Conclusion

While the Tolling Orders are laudable, they present long-lasting challenges for practitioners. While these issues are starting to emerge, only further time will tell how Massachusetts (and other) courts will resolve the numerous issues raised by the Tolling Orders.

Chris Stephens is a Member in the Commercial Litigation Group at Eckert Seamans Cherin & Mellott, LLC. His practice encompasses a wide variety of litigation disputes including business litigation, financial services, administrative, and appellate matters.

Elizabeth Dillon is an associate attorney in the Boston Office of Eckert Seamans Cherin & Mellott, LLC.  Elizabeth focuses her practice on commercial litigation matters, specifically in the areas of construction and employment litigation.


Grand Jury Service: Observations From a Criminal Lawyer

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by Jack W. Pirozzolo

Viewpoint

About the last thing I ever expected was that I would end up serving on a grand jury. I am currently an attorney in private practice at a large firm, where much of my practice involves the defense of organizations and individuals in criminal matters, including grand jury investigations. Before joining my current firm, I spent over ten years as a federal prosecutor in the U.S. Attorney’s Office in Boston and handled many lengthy, sometimes years-long, grand jury investigations.

The grand jury notice came in the spring and called me for grand jury duty in Norfolk County Superior Court in early July. According to the notice, if empaneled, I would be required to serve three days per week from 9:00 a.m. to 4:00 p.m. for approximately three months over the summer. Although such service would pose a major complication for my practice, I was not concerned. First, I expected that, given my background, there was no conceivable way I would get selected for the grand jury. Second, I figured that if, by some off chance, I did get selected, the summer months might be a slow time for the Court, so there would be a decent chance that the schedule of cases would not be full.

On the evening before I had to report, I sat with my wife and one of our kids at dinner and went over the jury form I needed to submit the next day to the Court. The form is intended to identify aspects of a potential grand juror’s background that might make the juror biased or otherwise not suited to serve.  We all chuckled as I went through the questions: Do you or any of your family members have any experience with the criminal justice system? Do you or any of your family members have any connections to law enforcement? Have you or any of your family members ever been a victim of a crime? I answered yes to virtually every question asked and then provided the required detail. We all believed that I would show up, get excused, and then head to the office later in the morning.

We were wrong. I arrived at the Norfolk County courthouse at the required time and eventually joined about a hundred other prospective grand jurors. We congregated in a courtroom before the presiding judge, who was there to select the twenty-three of us who would serve as grand jurors for the next three months. Grand jury selection proceeds similarly to jury selection for trials, with one major difference: there is no defense attorney or defendant. Only the prosecutors, the judge, the clerk, and the court officers are present.

The presiding judge told us that she would seat twenty-three jurors beginning with juror number one. She invited any juror whose number was called to approach the bench and inform her whether there was any reason that the juror could not serve on the grand jury. She had seated about half of the grand jury panel when she got to my number. I approached the bench, expecting that she would immediately excuse me after seeing my disclosure form. Instead, she had only one question for me: “Could I be fair?” Of course, my answer to that was “yes.” Having spent ten years presenting matters to grand jurors who were pulled away from their daily commitments to serve, I did not think it was either reasonable or prudent for me to protest that I was too busy to serve. I took my seat in the box.

Once all twenty-three of us were selected, we were escorted to the grand jury room for orientation. After a briefing on logistics, two prosecutors took over the balance of the orientation, which consisted of a process often referred to as the “preliminary legal instructions.” This process essentially consisted of the prosecutors reading to us model jury instructions for the Massachusetts criminal code. For more than two hours the prosecutors read, in detail, the instructions for each element of crimes ranging from assault and battery with a deadly weapon, possession with intent to distribute, larceny, homicide, etc. They then informed us that they would re-read the relevant instructions for the specific criminal offenses each time they presented a specific case for indictment.

I have been a lawyer for over twenty years and I have participated in scores of jury instruction readings. This was, however, my first experience sitting through jury instructions as a juror. The experience caused me to re-think my own assumptions about jury instructions and has led me to a couple of observations.

First, the preliminary instruction process for the grand jury needs to be reconsidered. A wholesale reading of the elements of multiple crimes, devoid of any factual context, served very little useful purpose, as there was simply no way that the grand jurors could have meaningfully and usefully processed the information the prosecutors were presenting. I am not suggesting that there was anything sinister in what the prosecutors were doing. But a two-hour reading of the elements of various crimes risked leading the grand jurors to develop an incomplete and, in some ways, inaccurate understanding of the relevant legal concepts.

My second observation regarding jury instructions developed over my entire time serving on the grand jury. As the grand jury moved on to the job of hearing and deliberating on specific cases and deciding whether there was probable cause (which is the only responsibility of the grand jury), I grew increasingly uneasy about what has become a well-settled and traditional practice on how juries are instructed. As part of the standard protocol, prosecutors read to us the relevant model instructions on each case immediately before our deliberations. My experience listening to these instructions as a grand juror led me to think that model instructions may provide a statement of a rule or applicable standard, but do not provide an appropriate frame of reference for jurors to contextualize the application of the rule to the particular case before them. Model instructions seem to be written by lawyers for lawyers and not for the laypeople who make up the bulk of the jury pool and are the intended audience. As lawyers, I think we tend to have a blind spot on this because the language of jury instructions is part of our professional vernacular. We have developed a shared language and understanding of what those words mean. Lay jurors do not have that shared understanding. Based on my experience in the grand jury, jury instructions would more effectively teach the jurors how they are supposed to apply the law to the facts by focusing less on the broad statement of the “law” or “elements” and more on specific examples of fact patterns that fall both within, and without, the scope of a particular criminal statute. If they have not already, courts may also want to consider investing in empirical testing to assess which types of instructions are most effective at teaching jurors to apply the law correctly.

During the three months, we had several different prosecutors appear before us. Those who were most effective tended to have certain common elements in their presentations.

First, they were very well organized. They arrived on time and ensured that their witnesses were available and ready at the appointed time. Their examinations were well ordered and their witnesses, particularly the law enforcement witnesses, were well prepared. They presented the evidence in a logical, coherent and efficient way. They did not leave gaps in the evidence and they did not overload us with repetitive or cumulative evidence.

Second, they made effective use of visuals. I was surprised at how often raw surveillance video provided only limited information about an event. Some prosecutors recognized that limitation and used their witnesses to explain how the surveillance video, for example, fit into the broader body of evidence being presented. Somewhat surprising to me was the fact that few, if any, prosecutors used overhead diagrams as a tool. Use of such diagrams would have made testimony, particularly about crime scenes, far more coherent and effective.

Third, they used a “cast of characters” chart with faces and names of people relevant to the investigation. Such a chart was particularly helpful when used to help organize a case with a large number of witnesses and potential “targets” (the people for whom the Commonwealth would seek indictments). Too often prosecutors seemed to forget, or not appreciate, how difficult it was for us to process how the different names we heard during the course of testimony related to the events in question, particularly when we were hearing about the individuals and events for the first time. The more effective prosecutors, no doubt recognizing the value of cast of characters charts, used them.

Fourth, they made effective use of witnesses. They allowed fact witnesses to testify in a more open-ended fashion, keeping leading questions to a minimum. They also, when necessary, framed their questions in a way that kept witnesses focused on the relevant information. Lay witnesses, many of whom are themselves unfamiliar with the process, can have a tendency to inject irrelevant, speculative and potentially prejudicial information into their testimony. The most effective prosecutors were able to focus their questions in a way that minimized the potential for a witness to stray. Sometimes that meant judicious and timely use of leading questions.

Fifth, they were careful to present facts that were potentially exculpatory or otherwise mitigating. While the Supreme Judicial Court has not required prosecutors in all instances to bring exculpatory evidence to the attention of grand juries, they are not permitted to withhold exculpatory or other evidence that leaves the grand jury with a distorted view of the facts. Commonwealth v. O’Dell, 392 Mass. 445 (1984). Those prosecutors that appeared to present the facts fairly were the most effective.

Sixth, they showed an appropriate appreciation of the grand jury’s independence as arbiter of whether charges are brought. Prosecutors have a tremendous ability to control the grand jury, but it is the grand jury that makes the charging decisions. The more effective prosecutors were careful to honor the grand jury’s domain.

This leads to my final observation about grand jury service. During the three months I served on the grand jury, virtually every attorney with whom I spoke about my service (usually in the context of changing a schedule) asked me whether the panel had yet indicted a “ham sandwich.” This is a reference to the famously overused statement from Judge Sol Wachtler, the former Chief Judge of the New York Court of Appeals, who believed that grand juries do not serve the protective function for which they were originally intended and would indict a “ham sandwich” if asked by the prosecutors to do so. In my experience, Judge Wachtler’s characterization grossly distorts both the grand jury’s role and how it functions.

While it is true that most cases presented to the grand jury result in an indictment of some kind, that fact largely is the consequence of two structural aspects of the grand jury: first, that the grand jurors need only to find “probable cause” rather than proof beyond a reasonable doubt; and second, that an indictment requires only twelve of the twenty-three grand jurors to agree that the prosecutor has met the probable cause showing. Although I cannot discuss any particular cases because of the requirement of grand jury secrecy, I generally observed that the grand jurors with whom I served took their obligations both to find the facts and to apply the facts to the law seriously. The group often took considerable time sorting through evidence and the relevant jury instructions that had been presented by the prosecution before making a decision on a proposed indictment. While it was rare for the grand jury to reject all charges, called issuing a blanket “no bill” (although it did happen), it was very common for the grand jury to “no bill” (reject) some, but not all, charges presented for indictment. In that respect, the grand jury played a significant role in determining the precise charges brought against a defendant. At least in that respect, the role of the grand jury as a shield was genuinely meaningful.

When I told colleagues that I had been selected to serve on a grand jury and that I would be tied up during most of the business day, three days per week, for three months, they were incredulous. The truth is that no one was more surprised than I. But looking back, it was well worth it. Not only did I make some new friends, but I also received a rare gift for someone in my position – I was able to see my profession from a completely new perspective, one that has given me a deeper and more complete view of the system in which I make my professional home.

Jack Pirozzolo is a partner in the Boston Office of Sidley Austin LLP where he represents individuals and organizations in a wide variety of civil and criminal matters.  Before joining Sidley, Jack spent ten years as an Assistant United States Attorney in the District of Massachusetts, the last five of which he served as First Assistant United States Attorney.


COVID-19 Vaccinations: Thoughts for Employers

Dick Glovsky_106x126Williams_Kimberly_106x126by Richard D. Glovsky and Kimberly F. Williams

Practice Tips

As the COVID-19 vaccination becomes more readily available, many employers are considering whether to require that employees be vaccinated.  In December 2020, the Equal Employment Opportunity Commission (“EEOC”) issued guidance addressing questions related to the administration of the COVID-19 vaccination. Under this guidance, employers may implement a mandatory vaccination program or policy. However, before implementing such a policy, employers should give careful consideration to the legal issues that mandatory vaccination raises.

Legal Considerations for A Mandatory Vaccination Policy

If an employer decides to implement a mandatory vaccination policy or program, the following legal considerations should be evaluated.

First, an employer should determine whether to provide the vaccine to its employees itself or through a contracted third party or to require its employees to receive the vaccine from an independent third party such as a pharmacy or health care provider. Employers or their contracted third parties who provide the vaccine to their employers may only ask pre-screening questions that are “job-related and consistent with business necessity.” Employers should look to health care officials to determine the necessary pre-screening questions and delve no deeper than what the medical community advises is necessary. An employer whose pre-screening questions exceed the bounds of what is “job related and consistent with business necessity,” runs the risk of violating the Americans with Disabilities Act’s (“ADA”) prohibition against inquiries that elicit disability-related information. 

In contrast, if an employee receives the employer-required vaccine from an independent third party, the ADA’s “job related and consistent with business necessity restriction” will not apply. 

Second, under the EEOC guidance, an employer who requires vaccinations must allow for disability and religious exemptions. The guidance, consistent with the ADA, requires that employers exempt from mandatory vaccination requirements an employee whose disability (i.e. a physical or mental impairment that substantially limits a major life activity) prevents the employee from safely receiving the vaccine. If an employee claims they cannot safely receive the vaccine due to a disability, the employer must engage in a good-faith interactive process to determine whether the purported disability entitles the employee to an exemption or other accommodation such as working remotely, wearing a face mask, or limiting the employee’s contact with the public. 

Similarly, the guidance, in accordance with Title VII of the Civil Rights ‎Act of 1964 (“Title VII”), requires employers to provide an exemption or other accommodation if receiving the vaccine would implicate an employee’s “sincerely held religious ‎belief.” Proving a “sincerely held religious belief” is a relatively low bar.

In each of these instances, an employer does not need to provide an accommodation if doing so would pose “an undue hardship” on it. Undue hardship may include financial as well as accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the employer’s business. 

Third, an employer who is considering mandating vaccinations should consider liability issues. The current vaccinations have only received Emergency Use Authorization, meaning that individuals who have the opportunity to receive the vaccination also have the right to refuse it. This sets up an inherent conflict between an employer’s mandatory policy and an individual’s right to refuse the vaccine as well as potential liability if the employee should be injured or harmed as a result of receiving the employer-mandated vaccine. Whether Workers’ Compensation laws will cover such injuries remains an open question.

Pros and Cons of a Mandatory Vaccination Policy

In considering whether to implement a mandatory vaccination policy, employers should recognize the pros and cons. One obvious pro is that a vaccinated workforce may be a safer one. It may also help bring employees back to the workplace. Working in the office or other business locations may help increase productivity and profitability and provide more certainty to workforce availability. It may also allow employers to avoid certain COVID-related risks and liabilities.

On the other hand, many people are unwilling or hesitant to receive the vaccine. Thus, a mandatory vaccination policy could be met with resistance from employees, leading to morale and retention issues. Additionally, vaccine availability and eligibility should be considered.  It may not make practical sense to require that employees be vaccinated if certain employees are not yet eligible to receive the vaccine or the vaccine is in short supply.    

Pros and Cons of a Discretionary Vaccination Policy

Nothing compels employers to mandate vaccinations. Many employers have adopted policies and programs to entice employees to be vaccinated. This “carrot” approach has included paid time off (“PTO”) for time taken to be vaccinated and for absences due to the side effects of a vaccine or for assisting family members to be vaccinated, gift cards, free Lyft rides to vaccination centers, and cash awards. As of the writing of this article, the EEOC is considering providing parameters for such incentives.

Further, a discretionary vaccine policy may result in a more content workforce and avoids ADA and Title VII issues. It also eliminates the specter of liability from an adverse reaction to a vaccine or its withdrawal from the marketplace, and it diminishes the administrative burdens necessitated by a mandatory policy, especially if the employer is administering its own vaccine program.

On the other hand, a discretionary policy may create a less safe work environment and may result in lesser emphasis placed on employee presence in the workplace.

What Employers Should Do  

First and foremost, all employers should vigilantly follow guidance from the Centers for Disease Control, EEOC, and other federal, state, and local agencies. They should continue to comply with and reinforce all existing safe workplace protocols.

Employers who decide to require vaccinations should develop, adopt, and provide to their employees the policies and protocols that will govern. They should provide a reasonable period for employees to be vaccinated, keeping eligibility and other factors in mind. At the end of the period by which vaccinations are required, employers should require written evidence of vaccinations having been administered and engage in the interactive process with those employees claiming a disability or religious exemption. Employers will also need to decide whether to terminate all non-vaccinated, non-exempt employees or allow those who refuse to be vaccinated to work (or continue to work) remotely.

Additionally, any employer who is considering a mandatory vaccination program and who contracts with a third-party vendor should consider inserting indemnity and hold harmless clauses into such contracts. Under the Public Readiness and Emergency Preparedness Act, employers are insulated from federal and state tort liability if they are “program planners” of a vaccination program. Program planners include employers who refer the administration of vaccines to third party vendors.

Finally, because not everyone will be vaccinated, and the length of the efficacy of vaccinations is unknown, COVID and its mutations most likely will be with us for quite some time.  Consequently, employers will need to consider these issues for the foreseeable future.

Richard D. Glovsky, Co-Chair of Locke Lord’s Labor and Employment Practice Group, is a Partner in the Firm’s Boston office. He handles significant employment-related litigation, including class actions, wage and hour issues, and discrimination and retaliation claims, and is a trusted adviser and general counsel to various companies and their senior executives.

Kimberly Williams is a Partner in Locke Lord’s Dallas office with experience representing employers in matters involving claims of discrimination, harassment, retaliation and wrongful discharge. She provides employment counseling and advice to clients on matters including hiring, firing, and other disciplinary action, wage and hour issues, leave issues and compliance with federal and state laws and regulations.


Three Years or You’re Out: SJC Limits MassHealth Estate Recovery Claims

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by Meredith A. Fine

Case Focus

In In the Matter of the Estate of Kendall, 486 Mass. 522 (2020) (“Kendall”), the Supreme Judicial Court (“’SJC”) held that MassHealth has three years from a beneficiary’s death to file its claims for reimbursement on estates or the claim is barred.

Background

MassHealth filed a claim against the estate of Jacqueline Ann Kendall more than three years after Ms. Kendall died intestate on August 7, 2014.  At the time of her death, Ms. Kendall owned a one half interest in a house and had received $104,738.23 in MassHealth benefits, which payments were subject to recovery by MassHealth from her estate.

More than three years after her death, on May 24, 2018, an heir filed a Petition for Late and Limited Testacy in the Probate & Family Court, seeking appointment as the personal representative. As required by statute, a copy of the probate petition was mailed to the Division of Medical Assistance (the “Division”), the state Medicaid agency that administers the MassHealth program. MassHealth notified counsel for the probate petitioner it would file a notice of claim in the estate. The estate rejected the claim as untimely.

MassHealth filed objections asserting its rights to present and recover claims under the Massachusetts Uniform Probate Code, G. L. c. 190B (the “Probate Code”), even after the three-year bar on creditor claims established under § 3-108 (4), and the one-year creditor filing deadline established under § 3-803 (a). MassHealth also filed a petition for formal probate requesting the appointment of a public administrator as the personal representative so that the MassHealth claim could be paid.

In April 2019, after a judge of the Probate and Family Court certified a series of questions to the Massachusetts Appeals Court, the SJC transferred the case on its own initiative. The National Academy of Elder Law Attorneys, joined by the Real Estate Bar Association, filed an amicus brief in support of the position taken by Ms. Kendall’s estate.

The SJC’s Decision

Justice Scott L. Kafker, writing for a unanimous Court, held that the Probate Code § 3-108 (4) prohibits the filing of any claims other than expenses of administration in estates after three years from the date of death, and also prohibits the personal representative from paying such late presented claims. In its 21-page decision, the SJC first reviewed the statutory background of the Probate Code and the MassHealth Estate Recovery program and determined that although the Legislature provided MassHealth with various advantages over other creditors, it did not exempt MassHealth from the three-year “ultimate time limit” on the filing and payment of all creditors’ claims against estates established in § 3- 108 of the Probate Code. Kendall, 486 Mass. at 523.

‘Plain and clear language’

In explicating the statutory scheme under well-established principles of statutory construction, the SJC’s 21-page decision emphasized that the three-year time limit is critical to the Commonwealth’s longstanding policy of “promoting a speedy and efficient system for liquidating the estate of the decedent and making distribution to the decedent’s successors” that is embodied in G. L. c. 190B, § 1-102 (b) (3)Kendall, 486 Mass. at 526.

The Court reasoned that the Legislature knew how to exempt MassHealth from requirements that applied to other creditors, but specifically did not include an exemption for the Division from the three-year limit on creditors’ claims set forth in § 3-108 of the Probate Code which “functions essentially as a statute of repose” and has “the effect of placing an ‘absolute time limit’ on liability.” Kendall, 486 Mass. at 528 (“Where the Legislature intended for differential treatment for MassHealth in the probate process, it did so expressly.”).

The Court continued, “The three-year ultimate time limit is a critical provision ensuring the orderly settlement and liquidation of estates in a relatively expeditious manner. We conclude that if the Legislature intended to create an exception for MassHealth to this ultimate time limit, it would have done so expressly in that particular provision.”  Id. Indeed, the language of the Probate Code establishing the ultimate time limit and limiting the powers of the personal representatives in late and limited testacy is “plain and clear.”  Id.

The Court gave significance to the fact that creditors, including MassHealth, have the power to open estates in order to preserve claims, “provided that the petition for an appointment of a personal representative was filed prior to the expiration of the ‘ultimate time limit’ of § 3-108.” Kendall, 486 Mass. At 531. However, the Court rejected MassHealth’s argument that limiting the time to file claims would violate federal Medicaid rules. “Nothing in the Federal law requires, as MassHealth claims, that MassHealth go beyond the bounds of State law to recover the maximum possible extent of its benefits.” Id. at 533 (citing to Daley v. Secretary of the Executive Office of Health & Human Servs., 477 Mass. 188, 204 n. 15 (2017), describing how state has limited right to recover probate assets consistent with federal Medicaid law).

The Court also acknowledged but dismissed MassHealth’s argument about unfairly shifting an undue burden to the Division to track the status and receipt of notice of the deaths of beneficiaries who are not in long-term care facilities. The Court observed that most estates will be settled quickly, and that MassHealth with due diligence should be aware when benefits to its clients cease and can cross-match this information with public death records or undertake direct inquiry to ascertain a beneficiary’s status as MassHealth’s Estate Recovery Unit already takes steps to do.

In addressing MassHealth’s argument that heirs would wait out the three-year period to avoid reimbursing MassHealth, the Court pointed out that the Legislature had already examined that possibility and deemed the scenario unlikely and the associated risk low. “The Legislature’s risk assessment and overall cost-benefit analysis is entitled to respect.” Id. (quoting from official comment to G. L. c. 190B § 3-803).

Conclusion

The SJC has answered:  The Massachusetts Uniform Probate Code is clear that more than three years from the date of death, a personal representative has the power only to sign title documents and pay estate administration expenses, and MassHealth is not exempt from the three-year “ultimate time limit” for bringing creditors’ claims against estates. Indeed, if MassHealth’s arguments prevailed, estates would never close.  And, personal representatives of estates would never be freed from their duties and personal liability, and the estate’s interest in assets, such as real estate, would never be fully released. In Kendall, the Court affirmed that the obligation of timely filing estate claims rests squarely on the shoulders of the creditor, in this case MassHealth, as the Legislature intended. At some point, estates must close.

Meredith A. Fine, Esq., has offices in Gloucester and Ipswich, where her practice focuses on real estate, litigation, and business counseling. She can be reached through her website, capeannlegal.com. Winning the Kendall case was the highlight of her career to date but not as exciting as the NY Mets winning the World Series in 1969.


Learning from Omar: The Case for Public Funding of Postconviction Innocence Defense

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by Sharon L. Beckman

Viewpoint

In 2020, the Boston College Innocence Program secured the exoneration of clients Frances Choy and Ronnie Qualls and the release of a third client pending further litigation. The program has also made significant contributions to law and practice reform efforts. The Boston Bar Journal asked BCIP’s Director, Boston College Law Professor Sharon Beckman, to comment on what is behind the program’s success and to share a lesson learned in her clinic.

About the Boston College Innocence Program

BCIP is an academic and clinical legal educational program at Boston College Law School that allows students and faculty to study the problem of wrongful convictions and work to remedy and prevent these injustices. We investigate and litigate on behalf of wrongfully convicted clients, and we engage in research and advocacy in support of law and policy reform initiatives. Our primary goals are to educate reflective practitioners who use their legal skills to help victims of injustice, and to generate ideas for making the legal system more just. BCIP students work with academics across the university and with a wide range of legal professionals, but they learn the most from our clients: men and women wrongfully convicted in Massachusetts for crimes they did not commit who give us the privilege of being their legal advocates. It is in accompanying them on their quest for justice that we gain insight into how the system has failed them and how it could be reformed. This started with our very first client, Christopher “Omar” Martinez.

Omar’s Ordeal

In 1999, when Omar was 19 years old, his friend Eddy Reynoso was shot to death just inside the door of his Springfield apartment. The prosecution alleged that Omar, who had never been involved with any crime, murdered Eddy because Eddy teased him about a girl. No physical evidence connected Omar with the crime, and witnesses testified that someone else had threatened Eddy just two days before he was killed. Nevertheless, after seven hours of custodial police interrogation, Omar, a Spanish speaker, signed an inculpatory statement typed in English by the police. Several aspects of the statement did not add up, a red flag for false confessions. Notably, the statement set forth a purported conversation between Omar and Eddy right before the shooting that was inconsistent with the earwitness accounts of Eddy’s neighbors who heard the killer speak to Eddy before shooting him to death. The neighbors heard the killer ask “Are you Eddy?,” a question that Omar, who knew Eddy, would not have asked. Defense counsel’s opening statement promised jurors that they would hear from a neighbor who knew Omar and would tell them that the voice he heard at Eddy’s door was not Omar’s; but that man, Wilbert Diaz, did not testify at Omar’s trial. On October 2, 2002, Omar was convicted of second-degree murder and sentenced to life in prison.

In 2004, Omar’s appointed appellate counsel, Chauncey Wood, filed a motion for postconviction relief, along with a motion for funds for an investigator to locate and interview Diaz. The prosecution opposed both motions. The judge who had presided over the trial denied these motions, and the Massachusetts Appeals Court affirmed, deferring to the trial judge’s finding that “the defendant failed to make a prima facie showing that Diaz would provide exculpatory evidence and that there was no reason to believe that Diaz’s testimony would likely have influenced the jury’s conclusion.” Commonwealth v. Ortiz, 67 Mass. App. 349, 354 (2006). Wood argued that, since Diaz told the police he knew Omar, it could be inferred that Diaz would be able to testify that the killer’s voice was not Omar’s. The Appeals Court disagreed, speculating that it was “equally inferable that Diaz, based upon his friendship with the defendant, chose not to tell the police that he recognized the voice as being that of the defendant.” Id. The SJC denied Omar’s application for further appellate review in 2006.

A decade later, after Omar had served 16 years in prison, BCIP joined Wood as pro bono counsel for Omar. Over the next three years, BCIP Supervising Staff Attorney Charlotte Whitmore led a BCIP team that included three law professors, eight law students, two graduate social work students, and several undergraduates who collectively committed thousands of pro bono hours to Omar’s case. Wood and the BCIP legal team investigated, researched, drafted, and litigated a successful motion for postconviction relief for Omar. Lauren Rossman, BC Law ’19 and now a BCIP Staff Attorney, was awarded the SJC’s 2019 Adams Pro Bono Publico Award for her investigative work on Omar’s case. The investigation was aided by funds from a federal grant to the Committee for Public Counsel Services, BCIP, and the New England Innocence Project. It also relied on a grant from “Running for Innocence,” a nonprofit fundraiser established by CPCS Innocence Program Director Lisa Kavanaugh in honor of her client Victor Rosario, who ran long distances on a dirt track at MCI Norfolk before his wrongful convictions were vacated. When Rosario was exonerated after 32 years of imprisonment, he and Kavanaugh ran the 2016 New York Marathon together to raise funds to help other prisoners seeking to prove their innocence.

By 2019, the trial judge had retired, and Omar’s new motion for postconviction relief was assigned to Judge John Ferrara. Commonwealth v. Ortiz, Hampden Superior Court, No. 9979CR02546, slip. op. (May 9, 2019). During an evidentiary hearing that spanned four days, Wilbert Diaz testified that he knew Eddy and Omar from the mini-mart where they all worked part-time. He was very familiar with Omar’s voice. Diaz testified that he did not recognize the voice of the man he heard speaking with Eddy before he was shot, but he was positive it was not Omar’s voice. When he learned Omar had been arrested for Eddy’s murder, Diaz was “shocked.” 

Diaz testified that he moved out of his Springfield apartment shortly after the shooting and settled in Worcester. He met with the trial prosecutor over a year before Omar’s trial, in response to a summons the prosecution sent to his Worcester address. After meeting with Diaz and going over his statement with him, the prosecutor told Diaz he likely would not have to appear as a witness. Although the Commonwealth was under court order to provide defense counsel with the current addresses of those on its witness list, the prosecution listed Diaz as living at his old Springfield address. The prosecutor never provided defense counsel with Diaz’s Worcester address. This nondisclosure explained why Omar’s trial attorney failed to deliver on his promise to the jury: he could not locate Diaz, because he was looking for him in the wrong place.

In vacating Omar’s convictions, Judge Ferrara found that the “most compelling evidence presented” was the “highly credible” testimony of Wilbert Diaz. Contrary to the original trial judge’s assessment that “the absence of Diaz’s testimony did no ‘real harm to the overall defense’ and ‘no real potential tactical disadvantage . . . could have arisen from the failure’ to call Diaz,” 67 Mass. App. Ct at 361, Judge Ferrara found that Diaz’s testimony was “exculpatory and important,” casting real doubt on the justice of Omar’s convictions. On April 23, 2019, Omar, then 39 years old, was released into the arms of his family members, after having served nearly two decades in prison for a crime he did not commit.

The Human Toll of Wrongful Convictions

Rarely is there a single cause of a wrongful conviction. More often, the misconduct or errors of multiple actors interact and cascade into an erroneous result. In Omar’s case, Judge Ferrara found that prosecutorial misconduct and ineffective assistance of defense counsel prevented the jury from hearing Diaz’s exculpatory testimony. He also found that the police had engaged in interrogation techniques known to produce false confessions. Omar’s case is not exceptional: according to the National Registry of Exonerations (NRE), 85% of those wrongfully convicted of murder and exonerated in Massachusetts since 1989 were victims of official misconduct by prosecutors or police. 33% received an inadequate defense. Five Massachusetts exonerees had signed incriminating statements or were alleged by police to have confessed to crimes they did not commit. Some of BCIP’s research and policy work addresses the known causes of wrongful convictions in an effort to prevent them before they occur. Here, however, my focus is on what happened to Omar after his wrongful conviction: we now know that as a result of the denial of Omar’s 2004 motion for investigative funds to find Diaz, Omar spent an extra 15 years in prison for a crime he did not commit.

Omar has the support of a loving family and a social work team headed by Claire Donohue, BC Law’s Director of Interdisciplinary Practice; yet the tragedy of his decades of wrongful imprisonment can never be made right. Imagine if you were wrongfully imprisoned from age 19 to age 39. What would you have suffered? What important relationships and life experiences would you have missed? Now multiply that suffering and loss by 75 — the number of Massachusetts prisoners exonerated since 1989. Collectively, they served over 950 years in prison — an average of almost 13 years each — for crimes they did not commit. While more research is necessary to understand all of the reasons it takes our legal system so long to remedy a wrongful conviction, it is clear that inadequate funding for postconviction indigent defense plays a significant role.

Judicial Discretion Regarding Postconviction Indigent Defense Funding

Mass. R. Crim. P. 30(c)(5) authorizes courts to “exercise discretion” to appoint counsel and “to allow the defendant costs associated with the preparation and presentation of a motion” for postconviction relief. So what went wrong in Omar’s case?  

In affirming the trial judge’s denial of investigative funds to Omar, the Appeals Court cited the Reporter’s Notes to Rule 30(c)(5). The Notes advise judges to “take into account the likelihood that the expenditures will result in the defendant’s being able to present a meritorious ground for a new trial.” Omar’s case illustrates the problem with that predictive enterprise. His motion was denied because he could not prove in advance the very thing he sought funds to investigate: whether Diaz’s testimony could help prove his innocence. Conditioning defense funding on already showing “a meritorious ground for a new trial” creates an untenable “Catch-22” for indigent people, who need public funding for investigation and assistance from experts to discover the facts and science corroborating their innocence claims. In cases like Omar’s, where funds are sought to discover exculpatory information that is not already in the trial record, the suggestion in the Reporter’s Notes that judges should “take into account their familiarity with the original record . . . in declining to appoint counsel” seems more likely to invite confirmation bias than to promote justice.

In Omar’s case, the courts may have also relied to Omar’s detriment on the comments in the Reporter’s Notes that, “unlike a request for costs prior to trial, in the context of a new trial motion there is no reason to deny the Commonwealth an opportunity to participate in a hearing on this type of request to avoid [] prejudice” to the defense, and that “the Commonwealth’s participation in this process will result in a better informed decision.” While opposing Omar’s postconviction motion for funds to locate Diaz, the prosecution never informed the trial judge or the Appeals Court that it knew Diaz’s location, let alone that it had known Diaz’s location before trial and had violated the discovery order to produce it to defense counsel. The prosecution actively impeded Omar’s efforts to secure funds to locate Diaz, while continuing to conceal its own ongoing misconduct. Tragically, the Commonwealth’s participation in Omar’s postconviction funds litigation led to a less informed decision, prolonging the incarceration of an innocent man.

As the source of its guidance on Rule 30(c)(5) motions for funds, the Reporter cites Commonwealth v. Conceicao, 388 Mass. 255 (1983), holding that indigent prisoners have no right to counsel in postconviction proceedings, and dicta in a footnote in Commonwealth v. Davis, 410 Mass. 680, 684 & n. 7 (1991), reasoning that if there is no right to postconviction counsel, then “surely” the Constitution does not require the Commonwealth “to fund postconviction investigations that may reveal exculpatory evidence.” Conceicao denied postconviction counsel to an indigent prisoner convicted solely on the basis of eyewitness identification testimony under circumstances that would not be allowed today. Today, we know that 75% of Massachusetts DNA exonerees were victims of eyewitness misidentification. Social science research about the fallibility of human perception and memory has changed the law, as well as police and trial practices, relating to eyewitness identification testimony. The SJC’s decisions granting postconviction relief under Rule 30(b) now recognize the importance of newly discovered evidence, including forensic and scientific advances, in determining whether “it appears that justice may not have been done.” Conceicao emphasized the “direct costs and serious collateral disadvantages” of appointing counsel in cases where the trial court sees no “need or the likelihood . . . for a constructive contribution by counsel,” without even mentioning that Conceicao had denied any involvement in the crime. Clearly, in 1983, the SJC did not anticipate the important role that factual investigation and scientific expertise would come to play in the Innocence Movement that was yet to come.

Toward Public Funding of Postconviction Innocence Defense

In the context of motions for DNA testing or other forensic or scientific testing of physical evidence, Rule 30(c)’s long delays and impediments led to the enactment of G. L. c. 278A, which authorizes courts to order postconviction forensic or scientific analysis testing for individuals who assert factual innocence of the crimes for which they were convicted. To obtain testing, a person must show, among other elements, that the requested analysis “has the potential to result in evidence that is material to” factual innocence. The SJC has construed G. L. c. 278A liberally in order to achieve its goal of providing increased, expeditious access to scientific or forensic testing that is potentially material to a claim of factual innocence. See, e.g., Commonwealth v. Wade, 467 Mass. 496, 509 (2014).

G. L. c. 278A provides an important investigative path to justice in cases where DNA or other scientific testing of physical evidence could be material to the question of factual innocence, but only 20% of Massachusetts exonerations have been achieved through DNA testing. In the other 80% of Massachusetts exonerations, the convictions were vacated on other grounds, including newly discovered evidence and expert testimony. Omar’s case illustrates why a similar recalibration of the cost-benefit analysis is required for Rule 30(c)(5) motions for postconviction indigent defense funds.

BCIP student Nat Carney, BC Law ’21, wrote an excellent paper last year in my Wrongful Convictions seminar calling for legislation similar to G. L. c. 278A for motions for postconviction defense funds. My former student Samuel Jockel published a paper urging the SJC to reverse Conceicao and recognize a Massachusetts constitutional right to postconviction counsel for prisoners asserting factual innocence. Fulfilling the Promise of Gideon in Massachusetts:  Providing a Post-Conviction Right to Counsel for Prisoners Asserting Innocence, 26 B.U. Pub. Int. L. J. 205 (2017). Their ideas are compelling. Another approach would be for the SJC Standing Advisory Committee on the Rules of Criminal Procedure to undertake a review of Rule 30(c)(5), and the corresponding Reporter’s Notes, in light of lessons learned from the Innocence Movement and Massachusetts exonerations. Whether by legislative or judicial action, Massachusetts must find a way to afford all indigent prisoners who maintain they were wrongfully convicted meaningful access to postconviction legal representation, including funding for investigation and expert consultation. This is a moral duty of the Commonwealth, not something that should depend on private charity or the pro bono efforts of students.

In the meantime, courts ruling on postconviction motions for defense funds should exercise their discretion to grant these motions more liberally, as they do now in the pretrial context and as the text of Rule 30(c)(5) permits them to do. They should allow such motions whenever the investigation or expert consultation has sufficient potential to produce information material to a claim of wrongful conviction such that a similarly situated person with financial resources would expend the funds to pursue it. In considering the cost of such motions, judges should also consider the human and systemic costs of denying indigent persons who maintain their factual innocence the funds necessary to investigate and prove their claims. No one should suffer as Omar did, serving time in prison for a crime they did not commit, merely because they lack the resources to defend themselves.

Sharon L. Beckman is Associate Clinical Professor of Law at Boston College Law School and the Director of the Boston College Innocence Program.  She serves on the SJC Standing Committee on Eyewitness Identification, the Massachusetts Conviction Integrity Working Group, and the CJA Panel of the U.S. Court of Appeals for the First Circuit.  She was a law clerk for (ret.) U.S. Supreme Court Justice Sandra Day O’Connor and for the Hon. Frank Coffin on the U.S. Court of Appeals for the First Circuit.