Our Steadfast Commitment to Justice

by Martin Murphy

President’s Page

For lawyers—indeed, for anyone who values the rule of law, cares deeply about civil rights, and envisions our legal system as a force to protect the most vulnerable among us—September 2020 was an extraordinarily cruel month. On September 14, we were shocked and deeply saddened to learn of the sudden death of Supreme Judicial Court Chief Justice Ralph D. Gants. And only four days later, Supreme Court Associate Justice Ruth Bader Ginsburg, finally lost her long battle with pancreatic cancer.

The next issue of the Boston Bar Journal will be dedicated to Chief Justice Gants and his legacy. I’ll have much more to say there about his loss, which so many of our members felt deeply and personally.

But as I write this—less than two weeks after Election Day, and only a few days after the BBA’s 2020 Annual Meeting—my thoughts turn to a New Yorker essay paying tribute to Justice Ginsburg, written by our Annual Meeting keynote speaker, Harvard history professor Jill Lepore. Professor Lepore summed up Justice Ginsburg’s life this way: “Aside from Thurgood Marshall, no single American has so wholly advanced the cause of equality under the law.” One example: Justice Ginsburg’s dissent in Shelby County v. Holder , criticizing the Court’s decision to read the critical pre-clearance provisions of the Voting Rights Act of 1965 out of the statute. “Throwing out pre-clearance when it has worked and is continuing to work,” Justice Ginsburg wrote, “is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Justice Ginsburg’s opinion quoted Martin Luther King’s familiar statement: “the arc of the moral universe is long, but it bends toward justice.” But, as Professor Lepore pointed out, when Justice Ginsburg read her dissent in open court, she added her own coda: “The arc of the moral universe is long,” she said, “but it bends toward justice if there is a steadfast commitment to see the task through to completion.” (You can hear Justice Ginsburg read her dissent here).

A “steadfast commitment to see the task through to completion” has long been part of the BBA’s DNA. Living up to that commitment remains as important now as ever.

At the end of May, we watched in horror as George Floyd called out “I can’t breathe” over and over and over. In the weeks and months that followed, we saw the possibility of a national reckoning on the question of race—and the prospect that here in Massachusetts we might take concrete steps to ensure that all police officers protect and serve everyone, including Black men and women and other people of color. The BBA’s Task Force on Police Accountability—chaired by former Suffolk County District Attorney Ralph Martin, now General Counsel of Northeastern, and Natashia Tidwell, a partner at Saul Ewing and the Court-appointed monitor in the Ferguson case—is hard at work on this issue, and we believe the BBA can make a meaningful contribution to public debate.

As the election approached, the BBA sponsored programs that trained dozens of volunteers to protect voters’ rights as we prepared for what we expected—for good reason—would be one of the most contentious elections in our lifetimes.

BBA programs also trained dozens more to represent the many tenants affected when the eviction moratorium was lifted in October, and we are assisting the Governor’s Office and legal-services stakeholders in their Eviction Diversion Initiative—all to try to prevent a tsunami of evictions and resulting surge in homelessness.

And at our Annual Meeting last week, I was honored to present the BBA President’s Award to the many lawyers who put aside the personal challenges we all faced when the pandemic hit to think, not of themselves, but about the more than 14,000 individuals detained at Houses of Correction and prisons—thousands of whom had not yet been convicted of any offense. Their work changed the standard for release of non-violent offenders (something the BBA has long advocated), secured mandatory COVID-19 testing for individuals detained on civil immigration charges at the Bristol County House of Correction, and led to the release of thousands of individuals.

But, as recent COVID-19 outbreaks in the Essex County jail and at the MCI-Norfolk state prison remind us, much work remains to be done on this issue. So too does much work remain on the BBA’s other priorities: ensuring police accountability, addressing the school to prison pipeline, supporting civil legal aid (particularly following the end of the eviction moratorium), protecting the rule of law, among others. And, most of all, much more work remains if we are to be serious about dismantling the system of structural racism that that has worked itself so deeply into the fabric of our country and its laws.

I know I speak for my predecessors, for the BBA’s volunteer leaders, and for its extraordinary staff, when I say that I am optimistic—indeed, confident–that our members will meet Justice Ginsburg’s challenge and continue to prove their steadfast commitments to each of these tasks.  

Marty is a partner at Foley Hoag LLP where he represents individuals, companies, educational institutions, non-profits, and law firms in complex civil litigation, criminal investigations, and regulatory proceedings. He is President of the BBA and has chaired a number of BBA Committees, including the COVID-19 Response Working Group, Immigration Working Group, Working Group on Criminal Justice Reform, Death Penalty Working Group and the Task Force to Prevent Wrongful Convictions.


Department of Revenue Child Support Enforcement v. Grullon: What Process Is Due When Child Support Is Due?

by Andrea Peraner-Sweet and Kelly A. Schwartz

Case Focus

In Department of Revenue Child Support Enforcement v. Grullon, 485 Mass. 129 (2020), the Massachusetts Supreme Judicial Court (“SJC”) (Cypher, J.) vacated the trial court’s judgment of contempt, holding that both the trial judge and the Department of Revenue (“Department”) failed to afford the defendant, the non-custodial father (“Father”), the procedural due process safeguards to which he was entitled under federal and state law and under the Department’s own policies. The opinion sets forth the procedural safeguards that a defendant in a child support contempt proceeding must be provided.  It also reaffirmed that a defendant’s ability to pay remains the critical inquiry when determining whether a defendant is in contempt and facing possible incarceration.

Background

Mother, the custodial parent, filed a pro se complaint for civil contempt alleging that Father was in arrears on his child support obligation. The complaint was served by the Department on behalf of Mother and marked “DOR full service case,” indicating the Department’s involvement and assistance in the matter. Father, also appearing pro se, filed an answer and counterclaim for modification, claiming that he was unable to meet his obligation due to his past incarceration and subsequent difficulty finding employment. Accordingly, he requested a reduction in his child support obligation.

At a hearing, the Department argued that Father was in contempt and sought a period of incarceration of the Father subject to a $500 purge amount. Without making any factual findings, the Judge entered a judgment, found Father in contempt and sentenced him to ten days in the house of correction, subject to the $500 purge amount. Because Father was unable to pay the purge amount, he was taken into custody and incarcerated for ten days.

Father appealed and the SJC granted an application for direct appellate review.

The SJC’s Decision

Looking first to the United States Supreme Court’s decision in Turner v. Rogers, 564 U.S. 431 (2011), the SJC identified four safeguards that needed to be provided to a defendant in a contempt proceeding:  “(1) notice to the defendant that his ‘ability to pay’ is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status…; and (4) an express finding by the court that the defendant has the ability to pay.” Id. at 447-48.

The SJC then turned to the federal regulations that were enacted to reflect the Turner requirements, which include screening whether defendants have the ability to pay; providing information to the court about defendants’ ability to pay; and providing defendants with clear notice that their ability to pay constitutes the critical question in civil contempt actions.  45 C.F.R. §303.6(c)(4).  

Finally, the SJC noted that the Department has adopted the federal guidance in a civil contempt policy and procedures memorandum, which states that “[i]t is the [Department’s] obligation to ensure that there is sufficient evidence that the parent has a present ability to pay before…assisting with service of a pro se customer’s complaint for contempt.” Grullon, 485 Mass. at 135. Further, “[a] parent’s present ability to pay is the key issue at every step of the contempt process—from screening through court hearings.” Id.

In vacating the judgment of contempt, the SJC held that the failure of both the trial judge and Department to afford Father with the Turner safeguards or their equivalent, or to comply with federal regulations, state law or the Department’s own policy, resulted in Father being wrongfully found guilty of civil contempt and incarcerated for ten days.

First, the Court concluded that the Department did not provide Father with notice that “his ‘ability to pay’ [was] a critical issue in the contempt proceeding.” Id., quoting Turner, 564 U.S. at 447.

Second, the Court could not determine whether the trial judge or the Department ever assessed Father’s financial disclosure form, which clearly indicated Father’s inability to pay. Id. at 136. Accordingly, the SJC held that the Department should not have requested that Father be incarcerated. Further, the SJC opined that “[b]ased on the lack of discussion at the hearing of the contents of the financial disclosure form and the assertion by counsel for the Department that [Father] should be incarcerated, it appears the [Father’s disclosure] form, although complete, was not used in any meaningful manner[.]”  Id.

Third, the Court concluded that the trial judge denied Father “an opportunity to ‘respond to statements and questions about his financial status[.]’”  Id. at 136, quoting Turner, 564 U.S. at 448. Once the trial judge decided to sentence Father, she failed to inquire whether he had the present ability to pay his child support.

Finally, the SJC noted that the trial judge did not make an express finding that Father had the ability to pay the child support arrearages or the purge amount. Id. at 137. Rather, the SJC highlighted that the transcript “reveal[ed] that the judge decided to find the defendant in civil contempt not because of an assessment of his ability to pay, but because of his ‘poor attitude.’ This decision by the judge was error, as it disregarded the procedural safeguard of ability to pay.”  Id.

Of note, although briefed, the SJC left unanswered the question of whether an indigent non-custodial parent who received these procedural safeguards must be provided with counsel. Id. at 138.

Conclusion

In Grullon, the SJC set forth a roadmap for the procedural due process safeguards that courts and the Department must follow before a defendant can be found in contempt and incarcerated for failing to pay child support. As the late Chief Justice Gants alluded to in his concurring opinion, how and whether these safeguards will be implemented in the future is unknown. Thus, family law attorneys should familiarize themselves with these safeguards to ensure that a defendant is not found in contempt or incarcerated without having been afforded the full panoply of these protections and without a judge’s explicit finding of a defendant’s ability to pay.

Andrea Peraner-Sweet is a partner at Fitch Law Partners LLP.  Her practice focuses on general business litigation with an emphasis on employment litigation as well as probate litigation.  Andrea is a  current member of the Boston Bar Journal.

Kelly A. Schwartz is an associate at Fitch Law Partners LLP.  Her practice is in family law, which includes matters involving divorce, child custody, alimony, child support, and asset division.


Commonwealth v Norman: A Sea Change in Pre-Trial Electronic Surveillance

by Jamie Michael Charles

Legal Analysis

In recent years, the Supreme Judicial Court (the “SJC”) has dramatically changed the legal landscape governing the supervision upon release of people charged or convicted of criminal offenses by expanding privacy rights under the Fourth Amendment and Article 14 of the Massachusetts Declaration of Rights. Most recently, in Commonwealth v. Norman, 484 Mass. 330 (2020), the SJC limited a trial court’s ability to impose a requirement that a defendant wear a global positioning system (“GPS”) device as a condition of pre-trial release.

The rubric by which trial courts must assess the propriety of GPS monitoring as a condition of release going forward, and the peripheral ramifications of the SJC’s decision for the various parties to the criminal justice system, have broad implications for client and Commonwealth advocacy. For instance, the decision appears to mark a retreat from prior rulings tacitly approving a broader, safety-based rationale for pre-trial release conditions, and may vitiate other release conditions historically imposed pursuant to the bail statute. In the absence of legislative action, justices of the trial courts must now strike a new balance in their efforts to ensure a defendant’s appearance and protect the various parties to a criminal case. Additionally, both prosecutors and police must revisit their use of surveillance technology, particularly in the absence of legal process, to avoid constitutional violations carrying severe consequences for prosecutions that emanate from such surveillance.

Legal Background

In 2006, the Massachusetts Legislature amended the bail statute, M.G.L. c. 276, § 58, to permit the imposition of various “restrictions on personal associations or conduct” as conditions of release in addition to (or in lieu of) cash bail.[i] In the decade that followed, law enforcement officials, probation officers, and members of the bar operated under the assumption that, where appropriate, the trial court could require a defendant or probationer to wear a GPS ankle bracelet as a condition of release without implicating that individual’s constitutional rights.

This understanding began to unravel in Commonwealth v. Johnson, 481 Mass. 710 (2019), and Commonwealth v. Feliz, 481 Mass. 689 (2019), where the SJC concluded that GPS monitoring of post-conviction probationers amounts to a constitutional search under the Fourth Amendment and Article 14. These decisions were followed in short order by Norman, which extended their holdings to defendants subjected to pre-trial release on conditions. Norman revisited the underlying purposes for which trial courts can impose pre-trial conditions pursuant to the bail statute. In doing so, the SJC left open for question the legality of pre-trial conditions that were routinely imposed on defendants across the Commonwealth before Norman. Furthermore, viewed in combination with Johnson, as well as subsequent decisions in Commonwealth v. McCarthy, 484 Mass. 493 (2020) and Commonwealth v. Mora, 485 Mass. 360 (2020), Norman reflects the SJC’s broader concern with law enforcement’s warrantless use of ever-advancing surveillance technology.

The Norman Decision

In Norman, Medford police were investigating an armed home invasion and armed robbery. They requested a targeted search from the Massachusetts Probation Service’s Electronic Monitoring (“ELMO”) Program, which oversees compliance with GPS release conditions, to determine whether any individuals under GPS supervision were present at the time and location of the robbery. That search yielded a positive result for the defendant, who was subject to GPS monitoring as a condition of release imposed in conjunction with an unrelated drug crime. The ELMO data both placed the defendant at the scene of the robbery and led authorities to a residence where the defendant was shortly before and after the robbery. A search warrant executed at that residence yielded additional inculpatory information. A Superior Court judge allowed the defendant’s motion to suppress, agreeing that the initial procurement of ELMO data absent a warrant violated the defendant’s Fourth Amendment and Article 14 rights. The Commonwealth appealed.

Relying primarily on Massachusetts and United States Supreme Court precedent recognizing an expectation of privacy in the whole of an individual’s physical movements, the SJC found that the initial imposition of GPS monitoring as a condition of pretrial release constituted a search under Article 14.[ii] It held that, going forward, the Commonwealth must demonstrate on the particular facts of each individual case that warrantless monitoring is “reasonable” to justify the attachment of a GPS ankle bracelet. Prior to imposing GPS monitoring, a judge must balance the intrusiveness of the monitoring against any legitimate governmental interests. In light of the “severe intrusion” occasioned by around-the-clock GPS monitoring[iii] – which the justices analogized to a modern-day scarlet letter – the SJC cautioned that even monitoring that serves legitimate government interests could be deemed unreasonable.

The SJC also defined narrowly the legitimate interests served by conditions of release imposed pursuant to the bail statute. It concluded that the only permissible goals of pretrial conditions of release in the defendant’s case were “ensuring the defendant’s return to court and his presence at trial, and safeguarding the integrity of the judicial process by protecting witnesses from intimidation and other forms of influence.”[iv] In doing so, the SJC rejected the Commonwealth’s argument that, unlike cash bail, conditions of release imposed under section 58 may serve the goals of generally deterring criminal conduct or addressing dangerousness concerns (the latter being an interest served under section 58A governing dangerousness determinations). As to the latter goal, the SJC appeared to limit the scope of its earlier ruling in Brangan v. Commonwealth, 477 Mass. 691, 706 (2017), that “a judge may not consider a defendant’s alleged dangerousness in setting the amount of bail, although a defendant’s dangerousness may be considered as a factor in setting other conditions of release.”[v] As a result, prosecutors must now be cognizant that general criminal deterrence and dangerousness are not valid interests in imposing GPS monitoring pursuant to the bail statute in most cases.

Broader Implications of Norman

The reasoning of the SJC’s Norman decision may also limit other types of conditions routinely imposed by the Commonwealth’s trial courts. For example, does ordering a defendant charged with operating under the influence to abstain from drugs or alcohol, or submit to random screens designed to detect those substances, ensure that defendant’s return to court?[vi] Will ordering a defendant repeatedly charged with drug distribution to stay away from the geographical area in which the charges arose protect potential witnesses? There certainly is an argument that these conditions more readily serve the goals of deterrence or community safety, and therefore are inappropriate conditions post-Norman. In fact, the SJC appeared to explicitly disapprove of an exclusionary zone in drug distribution cases absent evidence that the condition was “intended to insulate any particular victims or civilian witnesses[.]”[vii] Without legislative action, judicial officers[viii] may need to reassess the enduring utility of these and other commonly imposed conditions, and explore alternative avenues to cabin a defendant’s pre-trial conduct.

In addition to creating legitimate questions about the legality of certain release conditions, Norman also is one of a string of recent decisions creating a ‘new normal’ for law enforcement use of data generated by electronic surveillance. In Commonwealth v. McCarthy, 484 Mass. 493 (2020), the SJC held that law enforcement review of automated license plate reader (“ALPR”) data maintained by the Executive Office of Public Safety and Security could infringe upon a reasonable expectation of privacy if the data painted a detailed enough picture (or “mosaic”) of the targeted individual’s movements. Likewise, in Commonwealth v. Mora, 485 Mass. 360 (2020), the SJC applied a virtually identical analysis to protracted pole camera surveillance, concluding that a warrant was required where such monitoring enabled investigators to uncover the defendant’s private behaviors, patterns, and associations.

The theme in these cases, as in Norman and Johnson, is the SJC’s recognition that individuals have an expectation of privacy in the whole of their physical movements. And, that regardless of its form, prolonged electronic surveillance can provide “access to a category of information otherwise unknowable.”[ix] Yet while the technologies and data at issue in Norman, McCarthy, and Mora have historically been available to law enforcement in Massachusetts without a warrant, the SJC has thus far declined to set a bright line rule as to when the aggregation of such digital surveillance data crosses the threshold into an Article 14 search.[x] Members of law enforcement must therefore exercise caution when utilizing digital surveillance data that has historically served as a building block for criminal investigations. And prosecutors should seriously consider advising their law enforcement partners to secure a warrant supported by probable cause or another governing legal standard before requesting such data.[xi] Officers who fail to seek legal process run the risk of an ex post facto determination that the aggregation of GPS surveillance data infringed upon a reasonable expectation of privacy, resulting in that data being suppressed “even if law enforcement could have met the applicable [legal] standard.”[xii]

Lessons for Law Enforcement

This new “proceed at your peril” paradigm, aptly demonstrated by the historical GPS data ultimately suppressed in Norman, provides several practical lessons for law enforcement. First, warrantless requests for ELMO data may become less common, as law enforcement must determine whether the quantum of data requested from ELMO will infringe on a potential suspect’s reasonable expectation of privacy such that a warrant is required. Although there was no need for this analysis in Norman (because the ankle bracelet’s initial imposition was itself deemed unreasonable), the SJC recognized in Johnson, 481 Mass. at 727, that, at least as to defendants on probation, there is a difference between “a targeted review of GPS data directed at times and locations of suspected criminal activity” and “mapping out and reviewing all of the defendant’s movements . . . or rummaging through the defendant’s historical GPS location data indiscriminately.” The former may, depending on the specific facts of a particular case, fall short of a constitutional search necessitating probable cause.

Second, while application of the “mosaic” theory may be somewhat more straightforward in the context of ALPRs, pole cameras, and other surveillance technologies, any warrantless request will inevitably be subject to a retroactive assessment of its constitutionality. Such an analysis will consider both the volume of data requested or acquired and what that data reveals about a suspect’s movements, day-to-day routine, political and religious beliefs, and other private affairs. Absent legal process, the pyramid of evidence emanating from such data may collapse upon judicial review and cripple a prosecution.

Third, as to historical ELMO data, even a lawful, warrantless request may be subject to suppression based on a judicial determination that the suspect (whose identity was likely unknown to law enforcement at the time of the request) was improperly subjected to GPS monitoring. Given the virtually unknowable nature of this analysis at the time of an officer’s initial request, law enforcement officials may need to think twice about using ELMO data to find the proverbial needle in a haystack.

Conclusion

Norman and similar decisions addressing the use of digital surveillance – whether during the pre-charge investigatory phase or in conjunction with a criminal prosecution – have fundamentally altered the manner in which police and prosecutors use these technologies. Prosecutors and judges must re-evaluate how to address and constrain the behavior of defendants before and after trial. Conditions of release routinely imposed pre-trial may no longer serve the legitimate government interests vindicated by the bail statute. In particular, GPS monitoring as a condition of release and the use of associated location data by law enforcement have been significantly constrained. Police likewise must reassess technologies that previously served as building blocks of criminal investigations and weigh the utility of their warrantless use against the risk of a court suppressing the resulting evidence. One thing remains certain: as technology inevitably evolves, our appellate jurisprudence will continue to redefine the balance between the tools available to law enforcement and the courts and an individual’s right to privacy.

[1] See St. 2006, c. 48, § 8 (Mar. 30, 2006).

[2] While acknowledging that consent can justify a warrantless search, the Court largely dismissed its import in this context given the inherent coercion involved where a defendant agrees to GPS monitoring in lieu of pre-trial incarceration. Norman, 484 Mass. at 335.

[3] The Court highlighted how faulty alerts and charging issues associated with monitoring devices can compromise an individual’s employment and subject that person to the indignities and dangers associated with an arrest. Norman, 484 Mass. at 339.

[4] Norman, 484 Mass. at 338. The Court acknowledged that a separate provision of the bail statute permitted conditions of release to be imposed in certain crimes involving domestic abuse “in order to ensure . . . the safety of the alleged victim, any other individual or the community.” See G.L. c. 276, § 58, third par.

[5] In a footnote, the Court specifically referenced the provision of section 58 authorizing specific restrictions on personal associations or conduct. See Brangan, 477 Mass. at 706 n.18.

[6] Like GPS monitoring, random drug and alcohol testing constitutes a search and seizure for constitutional purposes under Article 14 of the Massachusetts Declaration of Rights. See Commonwealth v. Gomes, 73 Mass. App. Ct. 857, 859 (2009). Such conditions have been deemed appropriate in the probationary context, where a defendant’s expectation of privacy is reduced, so long as “reasonably related” to the goals of sentencing and probation, in light of the defendant’s underlying crime and his or her particular circumstances. See Commonwealth v. Lapointe, 435 Mass. 455, 459 (2001).

[7] Norman, 484 Mass. at 338.

[8] Mass. Gen. Laws. c. 276, § 58 authorizes numerous parties, including justices, clerks and bail commissioners, to set conditions of pretrial release.

[9] McCarthy, 484 Mass. at 500, quoting Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018); Norman, 484 Mass. at 334, quoting Commonwealth v. Johnson, 481 Mass. 710, 717 (2019). The Court first recognized this privacy expectation in Commonwealth v. Augustine, 467 Mass. 230, 245-49 (2014). Acknowledging that cellular phones had become “an indispensable part of modern American life”, the Court found that “[cell-site location information] raises even greater privacy concerns than a GPS tracking device” as a “cellular telephone is carried on the person of its user, [and therefore] tracks the user’s location far beyond the limitations of where a car can travel.” Id. at 245, 249. The United States Supreme Court reached a similar conclusion in Carpenter v. United States, 138 S. Ct. 2206 (2018).

[10] McCarthy acknowledged that the absence of a bright-line rule would create “some interim confusion[,]” but expressed confidence that the “constitutional line” would “gradually and appropriately . . . come into focus.” 484 Mass. at 509. The Court cautioned that it “risk[ed] error by elaborating too fully on the Fourth Amendment [or art. 14] implications of emerging technology before its role in society has become clear.” Id., quoting Ontario v. Quon, 560 U.S. 746, 759 (2010).

[11] Massachusetts case law already recognizes that law enforcement may obtain certain forms of historical location data on a lesser showing than probable cause. For example, in Commonwealth v. Estabrook, 472 Mass. 852, 855 n.4 (2015), the Court concluded that Article 14 permits requests for less than six hours of historical cell-site location information (“CSLI”) on a showing of “specific and articulable facts” evidencing “reasonable grounds to believe” that the records “are relevant and material to an ongoing criminal investigation[.]” Likewise, Chief Justice Gants’ concurrence in McCarthy, 484 Mass. at 514, proposed a “lesser” locational mosaic threshold that would require a showing of “‘specific and articulable facts’ demonstrating reasonable suspicion that the targeted individual has committed, is committing, or will commit a crime . . . and that there are reasonable grounds to believe that the data obtained from the query are relevant and material to an investigation of the crime.”

[12] McCarthy, 484 Mass. at 514 (Gants, C.J., concurring).

Jamie Michael Charles is an Assistant District Attorney in the Appeals and Training Bureau of the Middlesex District Attorney’s Office.


Beyond Shelter: Sustaining Public Housing Communities During and After a Pandemic

by Kate Bennett and Joel Wool

Viewpoint

For nearly a century, through economic boom and bust, social progress and upheaval, and across many administrations, the Boston Housing Authority (“BHA”) has steadfastly provided “deeply affordable housing” for the City’s low-income residents. Established in 1935, the BHA currently ensures housing affordability for 58,000 residents in and around Boston. As the country continues to reckon with the COVID-19 emergency, the BHA’s mission to connect vulnerable residents to opportunities through housing has never been more urgent. This article highlights some of BHA’s efforts to support our public housing communities through the pandemic and beyond.

The challenges faced by low-income households cannot be overstated. Even before COVID-19, BHA residents—many of whom are elderly, disabled, people of color, and children—faced disproportionate levels of unemployment, food insecurity, and health risks, all of which have been amplified during the pandemic by a digital divide that threatens to isolate them from essential services, critical resources, and necessary systems of support. While local, state, and national governments grapple with the racial and economic disparities laid bare by COVID-19, BHA and other affordable housing providers have been tasked to expand their role through more front-line advocacy and direct assistance to better shelter our vulnerable residents from the impact of the global pandemic.

COVID-19 EMERGENCY RESPONSE

In March 2020, BHA responded swiftly to the public health crisis to safeguard our residents, employees, and the general public from the twin public health and economic crises:

  • Because housing authorities lack the authority to cancel rent payments even during a national pandemic causing crisis rates of unemployment, to ensure that tenants can remain safely in place without fear of becoming homeless, on March12, 2020, the BHA announced its immediate suspension of all “non-essential” (i.e., not critical to public health and safety) evictions for the duration of the Massachusetts state of emergency, and later extended the agency’s moratorium to at least through the end of 2020. The BHA, in concert with Mayor Walsh and other city partners, also urged the Housing Court’s cooperation in suspending all pending and new non-essential eviction cases in light of the significant health and safety risks exposed to all during court proceedings.
  • Consistent with evolving guidance, BHA implemented preventative measures to encourage social distancing and frequent cleaning and decontamination, including temporary closure of certain indoor common spaces, limitations on visitors in elderly housing, and postponement of inspections to reduce exposure and transmission risks in our vulnerable housing communities.
  • Working with the U.S. Housing and Urban Development and the state Department of Housing and Community Development, BHA shifted mission-critical operations to remote and electronic platforms with streamlined and flexible documentation requirements and extended deadlines, including the processing of applications, admissions, issuance of vouchers, transfer requests, annual and interim examinations, and even housing quality inspections.
  • BHA adapted interactions with residents, encouraging open lines of communication via telephone, fax, and e-mail; establishing an on-line rent payment option; providing secure drop-boxes for submission of rent and documents for households without internet access; limiting in-person transactions to locations with appropriate ventilation and space for social distancing; and ensuring important notices and information are disseminated in a manner accessible to persons with communication-related barriers including disabilities, language needs, and technology challenges.

CARES ACT SUPPORTIVE INITIATIVES

In April 2020, BHA modified many of its policies and procedures under the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act to better address the escalating loss of income due to COVID-19. For example, the BHA encouraged prompt reports of job loss and requests for minimum rent hardship exemptions, allowed unlimited, retroactive interim rent reductions for loss of income, and continued to limit out-of-court rent repayment agreements to 40% of the household’s adjusted monthly income, inclusive of the tenant’s regular rent share.

In May 2020, with COVID-19 exacerbating health issues, driving up household expenses, and worsening transportation-related barriers to accessing food and other necessities, our residents clearly needed more help. Consequently, BHA prioritized the use of its CARES Act funds not only to maintain existing operations but also to implement new initiatives to support the health, safety, and quality of life of our residents, including:

  • a multi-million dollar food contract with local minority- and women- owned businesses to ensure the reliable and safe delivery of sufficient fresh foods to BHA families and seniors facing food insecurity and barriers to safe access to grocery stores.
  • economic incentives to encourage landlord participation in a new homeless voucher program for families with children in Boston Public Schools.
  • distribution of free laptops and tablets for residents and technology upgrades to improve connectivity to improve remote access to education, jobs, and other opportunities and resources, and to reduce social isolation.
  • reconfiguring community rooms and other common spaces for the continued safe use by residents and to facilitate safe interaction within the housing community.
  • direct efforts to reach and support residents, from staff distribution of food, masks, and cleaning supplies to safe and socially-distanced support of youth engagement programs, such as a multi-media project where young BHA residents filmed their experiences of the pandemic within their family and community.
  • support of resident empowerment, leadership and participation in BHA policy development and planning activities through regular, facilitated virtual meetings with tenant organizations, including providing technical training, free tablets, and interpretation services.

PRESERVING AND CREATING AFFORDABLE HOUSING

Pandemic notwithstanding, the BHA has forged ahead with its plans for the renovation of all of its affordable housing facilities and pursuit of opportunities to create additional affordable housing units in the City. For example:

  • Through the summer and fall of 2020, BHA has used virtual platforms to advance the permitting process for the redevelopment of its 1,100-unit Bunker Hill federal public housing site into a mixed-income community through a public-private partnership, leveraging rents from additional, new market-rent units to support the 1-for-1 replacement and conversion of the existing deteriorated public housing units. Similar initiatives are underway throughout Boston to rehabilitate and preserve the affordability of BHA’s aging public housing stock, including at Mildred Hailey in Jamaica Plain, and Mary Ellen McCormack in South Boston.
  • BHA also launched “Generations BHA,” a plan to renovate and modernize BHA’s entire 3,600-unit federal elderly/disabled portfolio, including accessibility improvements, energy efficiency measures, plumbing, electrical, and fire protection. All Generations BHA units will remain under sole public ownership but convert from a public housing to a Section 8 Project-Based Voucher (“PBV”) subsidy platform.
  • BHA and City of Boston recently announced the preservation of 48 “expiring-use” units at the Mercantile Wharf in the North End using Section 8 PBVs.
  • A new Boston-funded municipal voucher program is anticipated to stabilize the housing of additional low-income Bostonians through a mix of project- and tenant-based rental assistance.

FUTURE DIRECTION

Even before the pandemic, the BHA provided the City’s low-income residents with much more than shelter. Today, when COVID-19 exposed a dangerous widening of historic disparities in income and access to safe and stable housing, and unprecedented levels of social isolation among low-income and elderly residents, BHA is redoubling its efforts to provide our residents with vital connections to achieve economic self-sufficiency and housing mobility, and to build a more just and equitable 21st-century society in which all families are able to meet their basic needs.

Kate Bennett is the Administrator and CEO of the Boston Housing Authority.  She oversees public housing and housing choice voucher programs that provide affordable housing for more than 50,000 people in and around the City of Boston. 

Joel Wool is Special Advisor for Policy and Planning for the Boston Housing Authority. Joel has supported BHA in directing state and federal COVID relief funds to critical initiatives and social equity measures. He is project lead on the new municipally- funded voucher program.

 


Creative Planning For The Transfer Of Family Real Estate

by Richard H. Goldman

Practice Tips

The transfer of real estate to children upon the death of the last to die of their parents can lead to unexpected problems for the children.  It is not uncommon for parents’ estate plans to provide that upon the death of the last parent to die, their real estate shall be distributed to their children equally as tenants in common.  However, problems arise when the children cannot agree upon the disposition of the real estate.  This article offers suggestions for provisions to be included in the estate plans of parents so that such disputes can be avoided. 

Right of First Offer

One way of addressing these issues is to include in the parents’ estate plans a “right of first offer,” applicable to each parcel of real estate that is to pass to their children.  A right of first offer is a contract provision that enables one joint owner of property (“Potential Seller”) to offer to sell his or her interest in the property to the other joint owner (“Potential Buyer”) for a price specified by the Potential Seller (“the Specified Price”). 

Within an agreed period of time, to be specified in the estate plans, the Potential Buyer may elect (a) to purchase the Potential Seller’s interest at the Specified Price; or (b) agree that the Potential Seller can sell the Property for a price not less than what would provide the Potential Buyer the amount he or she would have received if the Potential Buyer had sold his or her interest to the Potential Seller for the Specified Price.   

If the Potential Buyer does not timely elect to purchase the Potential Seller’s interest at the Specified Price, or having elected to purchase, does not complete the purchase within the permitted time, then for a subsequent specified period of time, the Potential Seller can try to sell the Property to a third party for a price that would cause the Potential Buyer to receive not less than the Specified Price for his or her interest in the Property.

By way of example: Assume that a husband and wife have two children. They own two homes, one in Massachusetts and the other in Florida, each with a value of $1,000,000.  Their estate plans provide that upon the last of them to die, the balance of the estate, including the two homes, is to be distributed to the two children equally as tenants in common.  

The two children agree that the Massachusetts home will be sold, but one child wants to sell the Florida home and the other child wants to retain it.  The estate plans do not contain any guidance as to how to resolve the situation if the children do not agree on the disposition of the homes.  The children consult their respective attorneys and are advised that either one can commence a partition proceeding which could be expensive and adversarial.

A better solution is for the parents’ estate plans to set forth a right of first offer.  The parents’ estate plans could provide that if the children cannot agree on the disposition of the properties, then within 90 days after the death of the last parent, either child can notify the other in writing that the property should be sold for a price which he or she specifies, in his or her sole discretion, in this example, $1,000,000.  The child who receives the notice then has a specified period of time after the receipt of the notice to elect in writing to buy the interest of the other party for $500,000, and to complete the purchase within the period of time stated in the estate plans.  If the recipient of the notice does not elect to purchase the interest of his or her sibling for $500,000, or to complete the purchase within the applicable time period, the party providing the notice can sell the property to an unrelated third party for not less than $1,000,000 within a time period specified in the estate plans.  If a sale of the property is not completed to a third-party within the agreed time period, either sibling would continue to have the right to utilize the right of first offer in the future. 

Offer to Purchase for at Least Federal Estate Tax Value

There are other alternatives that can achieve the same result as a right of first offer.  The estate planning documents can provide that following the death of the last parent, either child can offer to buy a property owned by the parents for not less than the federal estate tax value of that property.  The estate’s attorney would prepare a purchase and sale agreement at that price.  If only one child is interested in purchasing the property, that child could then submit a written offer to purchase to the estate for the federal estate tax value, accompanied by a check payable to the estate equal to 10% of the purchase price and a signed copy of the purchase and sale agreement. 

If each child would like to purchase the property for not less than the federal estate tax value, each child submits a written offer to the estate with his or her offer, accompanied by a 10% deposit payable to the estate and a signed copy of the purchase and sale agreement.  The child who offers the highest price would be the purchaser of the property at the price offered by him or her. 

If neither child is interested in purchasing the property from the estate for at least the federal estate tax value, the Personal Representative will sell the property on behalf of the estate. 

Right of First Refusal

In some cases, clients have been advised to use a right of first refusal instead of a right of first offer.  While a right of first refusal can lead to the same result as a right of first offer, a right of first refusal brings with it some potential problems.  In a right of first refusal, one of the children could negotiate a sale with a third party but would then have to come back to the other child and give that child the right to purchase the property at the price offered by the third party.  It can be difficult for a seller to deal with a third party if that party knows that the seller cannot complete the sale without first offering the property to the other child at the price offered by the third party.  For this reason, the right of first offer is a better solution than the right of first refusal. 

Conclusion

It is important for lawyers to recognize problems that may arise when family real estate is transferred from parents to their children. The right of first offer is a tool available to estate planning attorneys that can be used to plan for the transfer of real estate from parents to children and minimize any potential conflicts.

Richard Goldman is Senior Counsel at Sullivan & Worcester LLP in Boston. He is an Adjunct Professor at Boston University School of Law and is Vice President of the Wesleyan Lawyers Association.


The Brief but Complicated Life of the Medical Parole Statute

by Jessica Conklin

Legal Analysis

In April 2018, the Massachusetts legislature passed the Criminal Justice Reform Act (the “Act”). In addition to enacting sweeping changes in the areas of bail, juvenile justice, diversion from prosecution, and reentry services, the Act established a statutory right to medical parole for all eligible inmates. The medical parole statute, codified at G.L. c. 127, §119A, provides terminally ill and permanently incapacitated prisoners who do not pose a public safety risk the right to be released from custody, regardless of the crime of conviction or the time remaining on their sentence. Until the Act was passed, Massachusetts was one of only a handful of states without this remedy.  

Medical Parole Basics

Under the Act, petitioning prisoners who meet the qualifying criteria “shall be released on medical parole.” G.L. c. 127 §119(e) (emphasis added). All inmates, including those sentenced to life without the possibility of parole, have a right to medical parole if they qualify. To be eligible for release, a prisoner must meet three conditions: (i) the prisoner must be terminally ill or permanently incapacitated; (ii) the prisoner must be able to live and remain at liberty without violating the law; and (iii) the prisoner’s release must not be incompatible with the welfare of society.   

As to the first condition, the Act defines “terminal illness” and “permanent incapacity,” but does not list specific qualifying illnesses or incapacities. Terminal illness is defined as “a condition that appears incurable, as determined by a licensed physician, that will likely cause the death of the prisoner in not more than 18 months and that is so debilitating that the prisoner does not pose a public safety risk.” Permanent incapacitation is defined as “a physical or cognitive incapacitation that appears irreversible, as determined by a licensed physician, and that is so debilitating that the prisoner does not pose a public safety risk.” The Act does not provide guidance on the second and third conditions; that is, it does not list factors to evaluate an inmate’s ability to live at liberty without violating the law or circumstances that might render an inmate’s release incompatible with the welfare of society.

Procedurally, the prisoner, an attorney, the prisoner’s relative, a medical provider of a correctional facility, or a Department of Correction (“DOC”) staff member may petition the superintendent or sheriff of the facility where the inmate is being held for medical parole on behalf of the inmate. The Act does not prescribe a particular form for the petition. The Act requires expeditious review and a timely decision of medical parole petitions by setting specific deadlines after receipt of the petition. Within 21 days of a superintendent’s or sheriff’s receipt of a medical parole petition, the superintendent or sheriff must provide to the DOC Commissioner (“the Commissioner”): (i) a recommendation regarding release; (ii) a medical parole plan;[1] (iii) a written diagnosis by a licensed physician; and (iv) an assessment of the risk for violence that the prisoner poses to society. G.L. 127, §119A(c)(1). The Commissioner, who is the administrative decision maker, then has 45 days to issue a written decision granting or denying medical parole. If a prisoner’s petition is denied, there is no internal DOC appeals process. The Act allows for judicial review through a petition for certiorari under G.L. c. 249, §4. G.L. c. 127, §119A(g).[2]

2019 Medical Parole Regulations

The Act tasks the secretary of the Executive Office of Public Safety and Security (“EOPSS”) with promulgating rules for administering the medical parole process. G.L. c. 127, §119A(h). EOPSS promulgated regulations in July 2019 (the “2019 Regulations”).

EOPSS took a restrictive view of the scope of the right to medical parole. The 2019 Regulations required the petitioner to develop a medical parole plan and authorized the superintendent or sheriff to reject petitions as incomplete. Under the 2019 Regulations, a complete petition included: (1) an adequate medical parole plan; (2) a written diagnosis by a licensed physician; (3) a release allowing disclosure of the petition and all supporting documents to other criminal justice agencies, the appropriate district attorney, and registered victims or victims’ family members; and (4) a release allowing DOC and the parole board to assess the inmate’s medical parole plan. 501 CMR §§ 17.03(3), 17.03(5). Incomplete petitions required no further action by the superintendent or sheriff. These initial regulations, however, did not stay on the books for long.

The Supreme Judicial Court Weighs In

In early 2020, the SJC invalidated several of the 2019 Regulations as contrary to the plain language of the Act and the legislative intent.[3] Buckman v. Comm’r of Correction, 484 Mass. 14 (2020).

In January 2019, inmates Peter Cruz and Joseph Buckman each submitted a petition for medical parole which was rejected as incomplete by their respective superintendents. Both Cruz and Buckman challenged the decision, arguing that the superintendent must consider a petition regardless of his or her view of completeness or adequacy. When Cruz died in custody during the pendency of the appeal, the case continued with Buckman as the sole plaintiff.  

Buckman’s appeal raised three important questions: (1) whether a superintendent must consider a petition for medical parole regardless of the superintendent’s view of the completeness or adequacy of the petition; (2) which party bears the burden of preparing a  medical parole plan, obtaining a written diagnosis by a licensed physician, and preparing an assessment regarding the risk for violence the prisoner poses to society; and (3) whether the Commissioner must provide the prisoner with notice of the superintendent’s recommendation, a copy of the recommendation, and any supporting or related materials. Buckman, 484 Mass. at 15-16. 

In answering the first question, the court held that a superintendent or sheriff must consider a petition for medical parole regardless of the petition’s completeness. The court noted that the medical parole plan, the written diagnosis by a licensed physician, and medical record releases are documents separate from the petition. As such, those documents are not required to initiate the petition process and trigger the statutory deadlines imposed on the superintendent and the Commissioner. Id. at 25 n.23. The separate nature of these documents is evidenced by the requirement that the superintendent or sheriff – not the petitioner – is required to transmit the medical parole plan, diagnosis, and the risk assessment to the Commissioner with the petition. Id. at 24; G.L. c. 127, §119A (c)(1) and (d)(1). To trigger the Act’s deadlines, the petitioner need not do more than submit a “written” petition. Id. at 26. 

On the second question, the SJC ruled that the superintendent or sheriff bears the burden of creating a medical parole plan and obtaining a written diagnosis from a licensed physician. The court reasoned that the Legislature could not have intended to place the burden of expeditiously producing documents on a terminally ill or incapacitated prisoner because the Act only requires the submission of the written petition to trigger the 21-day countdown. Furthermore, because the Act placed the burden of creating the risk assessment on the superintendent, one could infer that the Legislature intended to place the concomitant burden on the superintendent to create the medical parole plan and obtain a diagnosis from a licensed physician. Id. at 25-29.

Finally, the court held that the prisoner must receive all supporting documents submitted by the superintendent except the superintendent’s recommendation to the Commissioner. While nothing in the Act prohibits restricting a petitioner’s right to a superintendent’s recommendation, the court found it fundamentally unfair to prohibit the petitioner from receiving documents that the district attorney could access upon request. In fact, the 2019 Regulations themselves anticipated that the petitioner would have access to the medical parole plan and medical diagnosis because the burden of producing these documents was placed (albeit erroneously) on the petitioner. Id. at 30-32.

Proposed 2020 Regulations

After Buckman, EOPSS began the process of amending its medical parole regulations. The proposed regulations, accessible here, blend new provisions with surviving sections of the 2019 Regulations. At a public hearing on September 16, 2020, lawmakers and advocates criticized the proposed regulations for ignoring the court’s guidance in Buckman, narrowing the population eligible for medical parole, and placing unnecessary roadblocks that delay and frustrate the purposes of the medical parole law. 

Some issues flagged by advocates include defining the term “prisoner” to exclude pretrial detainees and individuals who have been civilly committed, construing “permanent disability” to require a higher level of disability than the Act requires, and requiring, as part of the petition, two signed releases on specific DOC issued forms. Although the proposed regulations have not been formally adopted, cases relevant to the proposed regulations are currently before the SJC.

Recent Appellate Litigation

On October 5, 2020, the SJC heard argument in three cases related to the medical parole statute:  Racine v. Comm’r of Dep’t of Correction (“Racine”), SJC-12895; Harmon v. Comm’r of Dep’t of Correction (“Harmon”), SJC-12876; and Malloy et. al. v. Dep’t of Correction (“Malloy”), SJC-12961.[4] These cases may answer a number of issues related to the 2019 Regulations, the proposed regulations, and the practical difficulties litigating medical parole cases.

In Harmon and Racine, which were argued jointly, the parties addressed: (1) whether a prisoner’s death renders moot a certiorari action for review of denial of medical parole; (2) whether the EOPSS regulation giving a prisoner the right to reconsideration upon a material decline in health precludes a prisoner from submitting a new petition for medical parole; (3) whether the Act applies only to committed offenders or includes pre-trial detainees; and (4) whether a reviewing court has authority to grant medical parole. The court requested amicus briefing on the first three issues.   

On the first question, DOC took the position that death generally renders a case moot. Petitioners argued an inmate’s death (or release) should not moot a case when the issues in the plaintiff’s case are capable of repetition and will otherwise evade review. Petitioners emphasized that the lengthy process to litigate a certiorari action after denial of a medical parole petition will frequently result in plaintiffs dying before their day in court. 

On the second question, both the 2019 Regulations and the proposed regulations contain a provision stating that “[n]o subsequent petitions may be submitted following the Commissioner’s denial of medical parole, unless the prisoner experiences a significant and material decline in medical condition.” 501 CMR § 17.14. Petitioners’ counsel took the position that the Act requires the superintendent to review every petition and does not restrict an inmate’s right to file a subsequent petition. DOC argued the Act does not address subsequent medical parole petitions and that EOPSS has the authority to regulate the matter.

On the third question, petitioners argued that the regulations’ exclusion of pre-trial detainees impermissibly narrows the scope of the Act. DOC contends that extending medical parole to pretrial detainees violates the separation of powers.

Finally, in deciding these cases, the SJC also may address the question of whether, on certiorari review, a reviewing court has authority to order medical parole. On this issue, DOC argued judges are limited to remanding a case to the Commissioner for further consideration, while the petitioners argued, among other things, that the certiorari remedy necessarily includes the power to order the medical parole the Commissioner improperly denied.[5]

In Malloy, the court was asked to consider whether a prisoner may continue to be held in custody after the Commissioner has granted medical parole. In that case, two inmates were each granted medical parole without a medical parole plan in place and continued to be detained for weeks while DOC attempted to find a suitable placement. Both the 2019 Regulations and the proposed regulations give the Commissioner the authority to set conditions that must be met prior to the prisoner’s release, a process which may create delay. 501 CMR § 17.11.  

Petitioner’s counsel took the position that continuing to hold an inmate in custody after he has been granted medical parole is improper; that the superintendent or sheriff is required to create a comprehensive medical parole plan, including contingency options, within the 66-day window afforded by the Act; and where suitable placement has not been found prisoners should be released to a Department of Public Health facility rather than remaining incarcerated. In contrast, DOC argued the Act does not require immediate release and does not limit the period during which DOC may hold an inmate after medical parole has been granted. Regardless of the outcome, the Court’s decision in Malloy is likely to clarify the timing of an inmate’s right to release under the Act once the Commissioner has decided to grant medical parole. 

Conclusion

With inmates facing increased vulnerability during the COVID-19 pandemic, the medical parole statute is particularly important, yet release under the Act has been rare. At the time DOC filed its brief in Malloy, 337 inmates had submitted petitions for medical parole, of which 34 had been granted. Of the 34 inmates granted medical parole, 30 had been released from custody. Three inmates were still awaiting release and one had died after being granted medical parole, but before being released from custody.[6]   

Medical parole in Massachusetts is still in its infancy. Its scope, and the procedural mechanisms that govern review of medical parole petitions, will continue to be tested and refined over the coming year.

[1] The Act defines a medical parole plan as: “a comprehensive written medical and psychosocial care plan specific to a prisoner and including, but not limited to: (i) the proposed course of treatment; (ii) the proposed site for treatment and post-treatment care; (iii) documentation that medical providers qualified to provide the medical services identified in the medical parole plan are prepared to provide such services; and (iv) the financial program in place to cover the cost of the plan for the duration of the medical parole, which shall include eligibility for enrollment in commercial insurance, Medicare or Medicaid or access to other adequate financial resources for the duration of the medical parole.” G.L. c. 127 §119A(a). 

[2] Because affected prisoners are frequently infirm, subject to quick health changes, and usually nearing the end of life, expediting certiorari review is often important. See, e.g., G.L. c. 249, §4 (certiorari petitions must be filed within 60 days); Superior Court Standing Order 1-96(2) (administrative record must be filed within 90 days), Superior Court Standing Order 1-96(4) (certiorari action must be resolved through a motion for judgment on the pleadings served within 30 days of the filing of the administrative record).  

[3] As stated in Buckman, the Legislature enacted the medical parole statute to save money on expensive end of life medical care and for reasons of compassion. 484 Mass. at 21-22.

[4] Superior Court judges have also tackled issues related to the Act. See Adrey v. Dep’t of Correction, Suffolk Superior Civil No. 19-3786-H, 2020 WL 4347617 (Mass. Super. June 19, 2020); Mahdi v. Dep’t of Correction, Norfolk Superior Civil No. 19-1064, Memorandum and Order (Mar. 31, 2020).

[5] G.L. c. 127, §119A(g) states: “A decision by the court affirming or reversing the commissioner’s grant or denial of medical parole shall not affect a prisoner’s eligibility for any other form of release permitted by law.” (Emphasis added).

[6] Brief of Respondent-Appellee Department of Correction, Malloy et. al. v. Dep’t of Correction, SJC-12961. 

Jessica Conklin concentrates her practice in white collar criminal defense, government investigations, and school disciplinary hearings. Jessica works with students and their families who attend several local secondary schools, colleges and universities in connection with disciplinary proceedings and title IX investigations. Jessica is also a member of the board of editors for the Boston Bar Journal.


Glendale Associates, LP v. Harris: Due Process Rights of Disabled Tenants under the Massachusetts’ Common Nuisance Statute, G.L. c. 139, § 19

by Courtney Libon

Case Focus 

Since the establishment of the first Massachusetts Housing Court in 1971, the need for the resolution of housing-related disputes has increased exponentially. Under the leadership of the late Supreme Judicial Court (“SJC”) Chief Justice Gants and Trial Court Chief Justice Carey, every community in the Commonwealth now has access to housing court, with expert judges, housing specialists, pro bono resources, and special code enforcement sessions. These features are intended to make courts more user-friendly and to assist pro se litigants in navigating the intricate system of housing court litigation. See Adjartey v.  Central Div. of the Hous. Court Dep’t, 481 Mass. 830 (2019) (“Adjartey”).

Over 60,000 cases are filed in housing courts each year, the vast majority of which are evictions involving a dizzying array of procedural technicalities administered at lightning speed. Tenants can go from first notice to homelessness in just a few days under the Common Nuisance Statute, G.L. c. 139, § 19 (“Nuisance Statute” or “Section 19”); with many more losing their right to possession in the course of a few weeks under the Summary Process Statute, G.L. c. § 239, which expedites civil procedure in evictions. Even with the benefits of specialized housing courts, litigants, a majority of whom are pro se and many of whom have disabilities, struggle to enforce their rights in the high-stakes eviction proceedings.

In a recent decision, Glendale Associates, L.P. v. Harris, 97 Mass. App. Ct. 454 (2020) (“Glendale”), the Appeals Court took the unusual step of shining a light on how, even within the framework of the housing courts’ special benefits and discretion, due process requires that pro se litigants with disabilities be afforded the opportunity to assert their claims and defenses without unreasonable conditions that impede access to justice.

Case Background: Glendale Associates, L.P. v. Harris

On May 20, 2016, Glendale Associates (“Landlord”) brought action in the Eastern Division of the Housing Court Department (“Court”) invoking the Nuisance Statute to void the lease of Kevin Harris, a disabled tenant receiving services from the Department of Mental Health (“DMH”), and seeking an order requiring Mr. Harris to immediately vacate his federally-subsidized apartment. The complaint alleged that Mr. Harris threw bottles from his apartment window targeting the Landlord’s employee. The Nuisance Statute authorizes landlords to seek immediate voidance of the lease of a subsidized tenant who engages in any of enumerated activities under Section 19, including crimes of violence against building employees. G.L. c. 139, § 19. The Court issued, ex parte, a temporary restraining order barring Mr. Harris from entering his home until further order of the Court, and subsequently issued a preliminary injunction without findings that rendered Mr. Harris homeless for the duration of the litigation while he defended the action pro se.

While Mr. Harris denied the allegations in the complaint, the Court focused on a treatment plan to address his mental health impairments and the behavior alleged. On August 9, 2016, Mr. Harris’s DMH case worker submitted a detailed treatment plan that would allow Mr. Harris to return to his apartment and reside there in compliance with his lease as a reasonable accommodation of his disability. The Court rejected the DMH plan and instead crafted and ordered a more onerous plan that, among other requirements, conditioned allowing Mr. Harris to return to his apartment as of September 1, 2016 upon filing of documentation that he was working or attending a day program and otherwise would be out of his apartment for at least five hours per day, and meeting a visiting nurse daily for medication administration notwithstanding that such services could not be arranged during Mr. Harris’s court-ordered  homelessness. The judge also imposed a “gatekeeper order” preventing Mr. Harris from submitting further pleadings or documents without Court permission. Despite repeated efforts by Mr. Harris’s service providers to demonstrate that the conditions in the Court’s treatment plan were not feasible or medically appropriate and to offer alternatives, the Court maintained the requirements of its own ordered plan and continued to find Mr. Harris’s efforts insufficient to allow him to return to his apartment.

On December 4, 2016, the Landlord moved for a default pursuant to Mass. R. Civ. P. 55 on the basis that Mr. Harris failed to answer or “otherwise defend” its complaint, and thereafter, the clerk entered the default without explanation. On January 19, 2017, the Landlord moved for entry of final judgment and issuance of execution for possession based on the default. The Court declined to take action on Mr. Harris’s submissions made in response because he “failed to obtain written permission of the court for filing” as per its gatekeeper order, but also did not act on his subsequent pro se request to file a motion.

At a February 15, 2017 review hearing, the Court stayed its decision on the Landlord’s motion for entry of final judgment and appointed a guardian ad litem (“GAL”) to assist Mr. Harris in compliance with the Court’s treatment plan. Although the GAL diligently complied with his appointment and submitted two reports and a new proposed treatment plan, on May 10, 2017, the Court allowed the Landlord’s renewed motion for final judgment and execution without a hearing, thus depriving Mr. Harris of even the Court-promised opportunity to respond orally at a hearing on the Landlord’s motion, and to otherwise defend himself as to the allegations in the complaint.  Mr. Harris moved for reconsideration, which was denied after hearing.

Court Holdings

In vacating the judgment and remanding the case, the Appeals Court took care to detail the course of the litigation, illustrating why the entry of default was not only legal error but “fundamentally unfair,” an abuse of discretion, and a violation of due process where the Court “bypassed the question of Harris’s liability under Section 19 and proceeded directly to the remedial phase of the litigation,” repeatedly denying Mr. Harris the opportunity to defend against the complaint, including through the gatekeeper order. 97 Mass. App. Ct. at 465. The Appeals Court observed that a default was inappropriate because, at a minimum, Mr. Harris was entitled to an evidentiary hearing under the Nuisance Statute, and his active participation in the litigation through a year of court-ordered homelessness met the standard for “otherwise defending” under Mass. R. Civ. P. 55.

The Appeals Court also provided a useful roadmap for reasonable accommodations in the context of Housing Court proceedings, reminding that: (1) it was the Landlord’s burden — not Mr. Harris’s — to demonstrate, through an individualized assessment and the interactive process, that no reasonable accommodation was feasible, and (2) the trial courts have a duty to make findings sufficient to permit appellate review, “based on current medical knowledge and reasonable judgment and objective evidence,” as to the reasonableness of a proposed plan and whether the risk posed by a disabled resident may be eliminated or acceptably minimized by a proposed accommodation. 97 Mass. App. Ct. at 462-464 (citing to Adjartey, 481 Mass. at 849 and Boston Hous. Auth. v. Bridgewaters, 452 Mass. 833, 850 (2009)). Thus, the Court’s imposition of its own treatment plan, without explanation and findings necessary for appellate review, was an abuse of discretion.

Conclusion

Glendale makes clear that the reasonable accommodation requirements articulated by the SJC in Bridgewater and Adjartey apply equally to emergency proceedings under the Nuisance Statute as other civil proceedings, but do not substitute for the due process rights of all litigants to defend against a complaint. Glendale also powerfully reminds us that evictions result in much more than loss of housing, but may also result in loss of access to medical treatment, systems of support, and educational and employment opportunities. Today, ushered by the COVID-19 pandemic, the stakes are higher than ever. This is a historic moment to consider fundamental change to ensure that all litigants, including disabled and pro se tenants like Mr. Harris, have meaningful and equal access to justice.

Courtney Libon is the Housing and Disability Supervisor at De Novo Center for Justice and Healing.  Prior to De Novo, Courtney was a Staff Attorney at the Legal Aid Society of New York, where she represented individual tenants and tenant associations.


Practice Tips for Navigating the Investigative Process at the Massachusetts Commission Against Discrimination

by Heather E. Hall

Practice Tips

Introduction

Whether you appear regularly before the Massachusetts Commission Against Discrimination (“MCAD” or “Commission”) or are new to the practice, this article provides a general overview of the Commission’s expectations and suggested best practices during the early stages of the MCAD process, from filing a complaint through the issuance of an investigative disposition by an Investigating Commissioner. This article is not a substitute for reading the MCAD’s regulations, which were substantially revised on January 24, 2020, after a lengthy public hearing process. When practicing before the Commission, attorneys should become familiar with the regulations and also review the MCAD’s website, which is regularly updated with changes to processes and other useful guidance.

COVID-19

At the beginning of 2020, MCAD staff worked in four offices, in Boston, Springfield, Worcester, and New Bedford, and were beginning to acclimate to the updated regulations. Due to the COVID-19 public health crisis, during the week of March 16, MCAD staff began telecommuting. Over the course of the telecommuting period, the Commission adjusted various processes in order to continue the majority of its operations. Where applicable, changes made due to COVID-19 will be discussed herein.

In early June 2020, the MCAD began the process of phasing staff back into the offices.  At the time of this article, most of the employees work at least one day per week in the offices, with administrative staff working in the offices at least two days per week. Attorneys should be mindful of the MCAD’s limited in-office capacity during the pandemic. In this vein, the MCAD encourages the use of email whenever possible.

Investigations Division Overview

The Investigations Division is comprised of nine units with approximately 50 people, including Administrative staff, who assist with document organization and processing; Investigators and Investigative Supervisors, who conduct the investigations; Attorney Advisors, who provide legal guidance and support to the investigative staff; and the Deputy Chief and Chief of Investigations, who manage the personnel and overall operations of the Division. The MCAD processes approximately 3,000 complaints each year. The agency saw an uptick of over 300 more complaints filed in 2019 than in 2018.

Complaints  

Manner of Filing

The 2020 MCAD Procedural Regulations, 804 CMR § 1.04(2), speak to the manner of filing complaints, but processes have been adjusted due to COVID-19. There are currently three ways to file a complaint with the MCAD: (1) via U.S. mail (“mail-in” complaints by attorneys and pro se complainants); (2) via email through the MCAD e-complaint portal (attorneys only); and (3) via phone with an Intake Specialist (pro se complainants only). The MCAD issued its “Guidance for Attorneys and Duly Authorized Representatives During the COVID-19 Public Health Crisis” on April 1, 2020 (“April 2020 Guidance”). (If you would like a copy, please contact the MCAD at: mcad@mass.gov.) As noted in the April 2020 Guidance, if attorneys are unable to obtain the complainant’s signature on the complaint, the complaint must include an email verification from the complainant stating that the complaint is made under the pains and penalties of perjury.

Attorneys are strongly encouraged to file complaints via the online portal at: https://massgov.formstack.com/forms/mcad_ecomplaint_filing_portal. If you choose to file a “mail-in” complaint, please do not also file an e-complaint, as this creates an additional administrative burden. Since the MCAD offices are currently still closed to the public, in-person intake services for pro se complainants have been suspended until further notice. For more information, see our “MCAD COVID-19 Information and Resource Center.”

Statute of Limitations

Pursuant to M.G.L. c. 151B, § 5, and 804 CMR § 1.04(3), a complaint must be filed within 300 days after the alleged discriminatory conduct. Under the April 2020 Guidance, the individual Commissioners will consider extending the filing deadlines on a case-by-case basis in extenuating circumstances.

Information in Complaints 

When filing, attorneys must: (1) provide the complainant’s and respondent’s full contact information, including address, phone numbers, and email addresses, if available; (2) identify applicable protected classes to which the complainant belongs and cite to the appropriate statutory authorities; and (3) provide specifics regarding dates, names, and positions of the persons alleged to have committed unlawful discriminatory acts.

Key Tip:  Before submitting a complaint to the MCAD, conduct a full interview with the complainant and an investigation of the facts of the complaint, to ensure compliance with the regulations.

Pseudonym Complaints

An Investigating Commissioner may allow a pseudonym complaint to proceed “when a specific overriding reason for confidentiality unique to complainant and substantial safety or privacy interests are demonstrated.” 804 CMR § 1.04(7). If an attorney wishes to file a pseudonym complaint, the complaint itself “shall not include the identity of the complainant” and the attorney must simultaneously file a motion to allow the use of a pseudonym. 804 CMR §§ 1.04(7)(a) and (b).

Withdrawal of a Complaint

Complainants may request to withdraw a complaint filed at the Commission. 804 CMR § 1.04(12). A required withdrawal form is available on the MCAD’s website.

Answers/Position Statements

Respondents must file an answer to the complaint in the form of a position statement. 804 CMR § 1.05(8).   The revised regulations have strict deadlines with respect to extensions for filing position statements. The deadline for filing a position statement regarding employment, public accommodation, education, or non-HUD housing complaints, is “within 21 days of receipt” of the complaint. 804 CMR § 1.05(8)(a)1. With respect to extensions, the regulations provide, “Upon written request by the respondent, and for good cause shown, the Commission may grant an extension… not to exceed 21 days absent exceptional circumstances.” 804 CMR § 1.05(8)(a)1. The deadline for position statements in HUD housing complaints is within 14 days of receipt of the complaint. 804 CMR § 1.05(8)(a)2.a. Requests for extensions in HUD complaints are “strongly discouraged” due to the timelines set by HUD. 804 CMR § 1.05(8)(a)2.b.

Position Statement Contents

Full and complete position statements are essential to the MCAD’s investigative process.  Position statements should include responses to all the allegations in the complaint. Respondents must also provide evidence and supporting documentation for all defenses, including but not limited to, comparators, internal investigations, policies cited, and performance records, where applicable. Supply the dates of the incident(s). If the respondent does not know the specific date(s), be as specific as possible and give a time frame. Do not wait until an investigative conference or a request from the Investigator to submit this information.

Key Tip: Remember to affirm the position statement in compliance with 804 CMR § 1.05(8)(d)1, which requires each named respondent to sign the position statement “under the pains and penalties of perjury.”

Rebuttals

“Rebuttals to the position statement are not required, but are strongly encouraged…”   804 CMR § 1.05(9)(a). While the regulations allow for pro se complainants to submit verbal rebuttals, attorneys must submit rebuttals in writing. 804 CMR § 1.05(9)(b)1.

Key Tip:  Use the rebuttal to clarify and amplify the facts of the complaint and present cogent legal arguments.  Do not simply reiterate the facts in the complaint.

Mediation 

The MCAD offers mediation services free of charge. 804 CMR § 1.06(1). The MCAD encourages parties to engage in productive communications regarding early resolution in their cases. In most cases, however, a Position Statement must be submitted prior to the mediation. This allows mediators to get a full picture of the parties’ arguments and makes the mediation process more effective. In the wake of COVID-19, the Commission suspended in-person mediation services and is currently conducting them via video, or telephonically if a party’s available technology is limited to telephone conferencing.

Key Tip: Do not come to a mediation without a command of the facts, a proposal, and authority to settle.

Investigative Conferences

Pursuant to 804 CMR § 1.05(10)(a), “[t]he Commission may convene an investigative conference for the purpose of obtaining evidence, identifying issues in dispute, ascertaining the positions of the parties, and exploring the possibility of settlement.” Although the MCAD does not conduct investigative conferences in every case, they can be a valuable investigative tool. The complainant’s and respondent’s attendance at the investigative conference is mandatory.  804 CMR § 1.05(10)(e). The Investigator conducting the conference may question the parties about issues under investigation and may permit the parties to make a brief statement. 804 CMR § 1.05(10)(d). The MCAD is currently conducting investigative conferences telephonically. The Investigator will contact the parties regarding the logistics for the teleconference.

Key Tips: Remember that the investigative conference is a tool for the investigation and not a forum for adversarial posturing. Use the opportunity wisely to present relevant facts and evidence, and listen closely to the information the Investigator is seeking. If parties have questions about their obligation to provide materials to the other party, they should ask the Investigator for guidance. Further, attorneys should be mindful of their obligation to “refrain from including” or “partially redact” personal data identifiers from “all filings and exhibits submitted to the Commission.” 804 CMR § 1.21(4).

Investigative Dispositions

Upon conclusion of the investigation, the Investigating Commissioner issues an investigative disposition. 804 CMR § 1.08. Dispositions are generally served via U.S. mail. During the COVID telecommuting period, however, the Commission is also serving dispositions via email.

The types of investigative dispositions include: credit granted to another forum’s investigation; dismissal based on withdrawal of the complaint, lack of jurisdiction, settlement, or the public interest; and post-investigation substantive dispositions, also referred to as causal determinations. 804 CMR § 1.08(1)(a)-(f).

Causal determinations include, probable cause (“PC”), where the “Investigating Commissioner concludes…that there is sufficient evidence upon which a fact-finder could form a reasonable belief that it is more probable than not that respondent committed an unlawful practice”; lack of probable cause (“LOPC”), where the Investigating Commissioner finds that “there is insufficient evidence to support a determination of probable cause to credit the allegations in the complaint…” and the complaint is dismissed; and split PC and LOPC decisions. 804 CMR § 1.08(f)1.-3.

Appeals and Motions to Reconsider 

If the Investigating Commissioner issues an LOPC determination, the complainant may appeal to the Investigating Commissioner “by filing a written request for a preliminary hearing with the Clerk’s Office within ten days after receipt of the notice of investigative disposition or dismissal.” 804 CMR § 1.08(b). A determination on an appeal of an LOPC finding may not be appealed to the Commission or to the Superior Court under G. L. c. 30A. 804 CMR § 1.08(4)(b)3.

In the event of a PC determination, a respondent may move for reconsideration in writing for “good cause at any time prior to the certification conference…or within 45 days of certification to public hearing… if no certification conference is held.” 804 CMR § 1.08(4)(a)1. If the Investigating Commissioner reverses or modifies a PC determination, the decision too is not appealable. 804 CMR § 1.08(4)(a)6.

The MCAD is currently conducting hearings on appeals telephonically.

Key Tip: Do not simply reiterate the facts, evidence and law presented in the course of the investigation. Use the appeal hearing and motions for reconsideration as an opportunity to present new facts or evidence unknown or unavailable during the investigation and/or material errors of fact or law.

Conciliation

If a PC determination is upheld, the next step in the process is a mandatory conciliation conference held with an Investigating Commissioner or designee. For more information on the post PC phases of the MCAD’s processes, see 804 CMR § 1.09 et seq.

Conclusion

We are facing challenging times that can create stress and uncertainty. While the MCAD understands the difficulties presented by COVID-19, we ask that attorneys comply with the regulations and keep informed of any COVID-19 related changes in the MCAD’s processes to ensure that their clients’ rights are well served.  Finally, maintaining collegiality and patience with your fellow members of the bar and the Commission’s staff goes a long way in helping us all weather these unchartered waters.

Heather Hall has served as the Chief of Investigations for the MCAD since 2018. Previously, she served as the Deputy Chief Legal Counsel, then Director of Internal Investigations at the Middlesex Sheriff’s Office. She also served as an attorney in the legal offices of two other public safety agencies, an appellate Assistant District Attorney, and a law clerk. She extends special thanks to her colleagues Geraldine A. Fasnacht, Esq., Supervisor, Attorney Advisors Unit, and Nicole L. Leger, Esq., Supervisor, Unit 1, for their input on this article.


Solar Project Development: the Special Case of Agrivoltaic Projects

by Jonathan Klavens, Courtney Feeley Karp, and Elizabeth Mason

Legal Analysis

[1] As it becomes more challenging to develop large-scale solar projects in Massachusetts, it is worth taking a closer look at “dual use” or “agrivoltaic” projects – solar projects designed with specially elevated and spaced solar panels to allow for continued agricultural use of the land beneath. Some view solar development on “greenfield” sites (open space, forested land, farmland) as less desirable than installing solar on rooftops, parking lots, brownfields, and other previously developed sites. Agrivoltaic projects present an important opportunity to install additional clean energy generation in Massachusetts without the trade-offs often associated with greenfield development. Any solar project where farmland is converted to exclusive solar use gives the landowner the opportunity to supplement farm income by renting out a portion of the land to a solar developer. An agrivoltaic project can provide supplemental income without loss of farmland; it can even lead to the creation of new farmland or more active use of existing farmland, such as upgrading a hayfield to a vegetable farm. An agrivoltaic project can also play a dual role in the fight against climate change: increasing the share of energy generated from carbon-free sources while also promoting regenerative agriculture, the cultivation of plants and healthy soil that can help reduce the atmosphere’s existing carbon load. This article looks at three different regulatory frameworks that impact the development of agrivoltaic projects in Massachusetts: zoning; the Commonwealth’s solar incentive program; and taxation of agricultural land.

Local Permitting of Solar Projects

Like other commercial solar projects in Massachusetts, agrivoltaic projects face an array of permitting requirements. We will focus on the zoning landscape with special attention to several trends and dilemmas.

While state law limits the application of local zoning to solar facilities and both the Land Court and Superior Court have had occasion to interpret that law in recent years, there remains a good deal of confusion about the permissible scope of local zoning authority over solar projects. Zoning regulation of solar projects is limited by M.G.L. c. 40A, § 3 (“Section 3”), which provides that “[n]o zoning ordinance or by-law shall prohibit or unreasonably regulate the installation of solar energy systems or the building of structures that facilitate the collection of solar energy, except where necessary to protect the public health, safety or welfare.” Section 3 evidences the legislature’s intent to protect solar facilities from certain local zoning restrictions but when and to what extent?

Many zoning bylaws do not mention solar energy use (or any broader use that would include solar energy use). Given that zoning bylaws almost universally prohibit uses that are not expressly permitted, this means that in the first instance solar would be prohibited under a bylaw that is silent as to solar use. In turn, however, one Land Court decision held that Section 3 would ordinarily preempt that prohibition, effectively rendering solar use a use allowed by right.[2]

Notwithstanding Section 3, more and more municipalities are adopting solar bylaws that regulate solar projects in one or more ways. Some provide that solar projects are allowed by right in certain zoning districts, with or without a requirement for site plan approval (a mechanism for imposing reasonable conditions on as-of-right uses). Others provide that solar projects are allowed by special permit in certain districts. Still other solar bylaws purport to prohibit solar use in certain districts. Where solar facilities are allowed, a solar bylaw often lays out special dimensional and other requirements, such as requirements for vegetative screening or for posting of financial assurance to cover the costs of removing the facility at the end of its useful life. Larger scale ground mounted solar projects are often the only subject of solar bylaws or are subject to more extensive requirements than other types of solar facilities.

With the proliferation of solar bylaws, questions have arisen about the extent to which they are enforceable in light of Section 3. In its role as reviewer of the legality of new bylaws, the Office of the Attorney General has admonished municipalities to consult with counsel to ensure they do not run afoul of Section 3,[3] but has not rejected any solar bylaw as facially inconsistent with Section 3. In addition, courts have offered some guidance, providing several prospective “rules of thumb” to local zoning boards and solar developers.  For example, although a special permit granting authority (“SPGA”) can ordinarily exercise broad discretion to deny a special permit, it likely cannot do so outside the bounds of Section 3.[4]  Moreover, certain bylaw requirements (or permit conditions) may be inconsistent with Section 3 on an as-applied basis because they effectively prohibit a project or are not “necessary to protect public health, safety or welfare.”[5]  For example, given the benign nature of a typical ground mount solar facility it might be difficult to justify a 200-foot setback requirement as necessary to protect public health, safety or welfare.

It is also unclear under Section 3 under what circumstances a municipality may allow solar energy use in certain districts while prohibiting it in others. There are two keys ways of viewing this issue through the lens of Section 3. One view is that if a municipality allows solar energy use in at least some locations, it cannot be deemed to have “prohibit[ed]” solar use within the meaning of Section 3. The alternative view is that Section 3 bars a municipality from prohibiting solar energy projects even in just a single district “except where necessary to protect public health, safety or welfare.” Id. While an initial Land Court decision seemed to provide some support for the first view,[6] two subsequent clarifying Land Court decisions have endorsed the second.[7]

In Briggs v. Zoning Board of Appeals of Marion, the Marion Zoning Board of Appeals argued that, as long as commercial solar energy use was allowed in some zoning districts, it could still be prohibited in a residential district consistent with Section 3. The court appeared to accept this reasoning, finding that it is “rational” and “reasonable” to prohibit commercial solar energy systems in residential districts,[8] even though Section 3 expressly bars any prohibition of solar energy systems – not just irrational or unreasonable prohibition of solar energy systems – “except where necessary to protect the public health, safety or welfare.” Id. The court noted that the board made no findings on the impact of the proposed project on public health, safety or welfare, id. at *2, nor did the court in its de novo review make any such findings, see id. at *4-5.

In Duseau v. Szawloski Realty, Inc., issued nearly a year later, the court reached a similar conclusion, but only because it determined that the defendant solar developer had the burden of proving that the prohibition of solar energy use in the town’s rural residential district was not necessary to protect public health, safety and welfare and the developer never even argued the issue.[9]

More recently, in PLH LLC v. Town of Ware, the court ruled that a municipality could not require, and then could not deny or condition, a special permit for a solar project in a particular district “except where necessary to protect the health, safety or welfare.”[10] Notably, it appears that no court has yet concluded that a prohibition of solar energy use, or a denial of a permit for solar energy use, has been necessary to protect public health, safety or welfare under Section 3. Given that many larger solar projects are now operating (including many in residential districts) across Massachusetts, and that many municipalities that have hosted such projects are supportive of additional solar development, it seems likely that the parties to future litigation on this point will have a good deal of experience from which to draw.

In short, developers of larger solar projects must navigate local land use regulation and differing interpretations of Section 3 as to which aspects of local regulation are actually enforceable. Meeting the Commonwealth’s clean energy goals will likely require more balanced regulation and more certainty about how municipalities can lawfully regulate clean energy projects.

SMART Program Incentives for Agrivoltaic Projects

The Solar Massachusetts Renewable Target Program (the “SMART Program”) implemented by the Massachusetts Department of Energy Resources (“DOER”) provides a base financial incentive for production of each unit of solar energy from eligible projects in Massachusetts. The SMART Program regulations also offer extra incentives known as “adders” to promote certain types of projects, such as solar carports, solar on landfills, and community solar facilities. Agrivoltaic facilities, referred to as Agricultural Solar Tariff Generation Units (“ASGTUs”) in the regulations, are the target of one such adder. In addition to providing adders for preferred project types, the SMART Program also has what are called “greenfield subtractors” which reduce the incentive payments for solar facilities located on greenfield sites. ASTGUs are not subject to the subtractor given that the land on which they are located will continue to be farmed.[11] ASTGUs are also exempt from strict new rules adopted in July 2020 that generally bar solar facilities from participating in the SMART Program if they are located on land designated as priority habitat, core habitat, or critical natural landscape as identified by the Massachusetts Division of Fisheries and Wildlife BioMap2 framework with the Commonwealth’s Natural Heritage and Endangered Species Program.[12]

At the same time, the process and standards for qualification of a SMART ASTGU are quite rigorous under state regulations and guidelines.[13]  For example, the reduction of direct sunlight relating to an ASTGU cannot exceed 50% – measured on every square foot of the project site. While a SMART facility can generally be up to 5 MW AC in size, under the current ASTGU Guideline an ASTGU would typically be capped at just 2 MW AC. Id. at  3. The current regulations also contain a number of other requirements including continuous growth, growing plans, and productivity reports. 225 C.M.R. 20.06(1) (d)(3), (5); ASTGU Guideline at 3. While it is important to ensure that there are not significant detrimental effects on agriculture from an ASTGU, there could be many appropriate reasons for reduced productivity, such as a drought year or appropriate crop rotation. The approval process thus far has raised questions about the appropriate baseline for measuring impacts, determining which impacts to attribute to the solar facility or to other causes, what type or magnitude of impact would result in disqualification of an ASTGU or removal of its adder.

There may well be many more types of symbiotic solar and agricultural uses that do not fit within the current requirements for ASTGUs. For example, mushroom cultivation, beekeeping and animal husbandry are all farming activities that might benefit from shade reduction greater than 50%. The state’s Department of Energy Resources (“DOER”) has a process for seeking waivers for unique and worthwhile alternatives but obtaining an exception is not easy, quick or predictable.

Based on experience gleaned from processing ASTGU applications for almost two years, DOER has recently issued a “straw proposal” to modify the guideline governing qualification of ASTGU projects. Among other things, the straw proposal raises the possibility of allowing for ASTGUs of up to 5 MW AC in certain instances and streamlining the approval process by permitting qualification by a third party organization, which should increase speed and predictability for approval of project designs. This change would provide greater certainty for the financing of these projects and allow the full range of potential climate change benefits to come to fruition.

Property Tax Incentives for Land in Agricultural/Horticultural Use

Land in active agricultural or horticultural use is entitled under M.G.L. c. 61A (“Chapter 61A”) to reduced property tax rates. Chapter 61A land that is converted from agricultural to commercial use must be removed from Chapter 61A. So what happens when Chapter 61A land serves as the site of an agrivoltaic facility? 

Before land is to be removed from Chapter 61A, the landowner must deliver to the municipality a notice of intent to convert. Such notices are accompanied by plans showing the total acreage that will cease to be farmed (the “Converted Land”) and the balance of the land that will continue to be farmed (the “Remaining Land”). The Converted Land is removed from Chapter 61A and the landowner pays roll-back taxes (and, if applicable, conveyance taxes) in connection with this removal. The Remaining Land should remain eligible for reduced taxation under Chapter 61A.

There is currently some confusion about the applicability of Chapter 61A to land under agrivoltaic facilities in light of the existence of Section 2A of Chapter 61A. Section 2A was inserted by the legislature in 2016 to address situations where ground mounted solar facilities are installed on farmland, precluding use of the land under the solar panels for agricultural or horticultural use but generating power used for the operation of the farm. Section 2A allows owners of agricultural or horticultural land who install a “renewable energy generating source” on their land which meets the requirements of Section 2A to maintain all of their land as agricultural or horticultural land under Chapter 61A, even the land that is exclusively occupied by the solar array and can no longer be farmed. Section 2A is not relevant to agrivoltaic facilities because they involve installation of solar panels above land which will continue to be farmed.

Land under and around an agrivoltaic facility is instead governed by Sections 1 and 2 of Chapter 61A. Section 1 states that land shall be considered to be in agricultural use when “primarily and directly used in raising animals, including, but not limited to, dairy cattle, beef cattle, poultry, sheep, swine, horses, ponies, mules, goats, bees and fur-bearing animals, for the purpose of selling such animals or a product derived from such animals in the regular course of business.”  Section 2 states that land shall be considered to be in horticultural use when “primarily and directly used in raising fruits, vegetables, berries, nuts and other foods for human consumption for the purpose of selling these products in the regular course of business.”  The Remaining Land at the site of an agrivoltaic facility, which will continue to be farmed, meets these definitions.

Note that farming the land underneath and surrounding the solar arrays of an agrivoltaic facility is something that, as noted above, facility owners are required to do under the SMART Program in order for the facilities to qualify for – and stay qualified as –ASTGUs under that program. If in the future the owner ceases farming the land underneath and surrounding the solar arrays and uses it for a non-qualifying purpose, the land would then lose eligibility for classification under Chapter 61A.

Chapter 61A and the publications of the Massachusetts Department of Revenue’s Division of Local Services (“DLS”) are clear that it is the use of the land that determines whether or not land is eligible for classification under Chapter 61A. Section 20 of a set of FAQs published by DLS states that, in the case of solar facilities that (like the agrivoltaic projects discussed here) don’t meet the requirements of Section 2A, only land “necessary for the operation of” the solar facility or “impacted by its operation” is ineligible for continued classification under Chapter 61A.[14]  The Converted Land at the site of an agrivoltaic facility meets this definition and is the portion of the land no longer eligible for taxation under Chapter 61A. The Remaining Land is not “necessary for the operation of” the solar facilities. It will continue to be farmed and should remain eligible for classification under Chapter 61A.[15]

Whether land under and around an agrivoltaic facility can remain in Chapter 61A can have a significant impact on the economic viability of an agrivoltaic project. If land under an agrivoltaic project is not allowed to remain in Chapter 61A, that may not just mean that the project would have to be able to support higher property taxes (potentially reducing benefits to the farmer) but could also raise questions about the project’s ability to operate as an ASTGU under the SMART Program. An agrivoltaic project can qualify as an ASTGU if it is on land currently enrolled in Chapter 61A or land that has been in Chapter 61A in the previous five years. 225 C.M.R. 20.02 (definitions of ASTGU and Land in Agricultural Use). If a project also needs a waiver under the ASTGU Guideline, however, it must demonstrate that “the primary use of the land is for agricultural or horticultural production, as defined under [Chapter 61A].”  ASTGU Guideline at 4. If the land is removed from Chapter 61A because of hosting the ASTGU, the rationale for such removal would presumably be that the primary use is no longer agricultural or horticultural. This would create tension rather than synergies between laws, and would highlight the importance of interagency coordination to further the Commonwealth’s policy goals, particularly with respect to climate change. Removing any uncertainty about this issue will be important to the growth of agrivoltaic facilities and the environmental and economic benefits that flow from them.

Development of larger scale solar projects is a challenging venture, and development of agrivoltaic projects involves special challenges and special opportunities. Overcoming those challenges and realizing those opportunities requires harmonization of and certainty in land use regulation, financial incentive qualification, and property taxation. Striking the right balance would be a victory for sensible land use planning, support of local agriculture, and the transition to a clean energy future.

[1] The authors would like to thank Sarah Matthews, senior counsel at Klavens Law Group, P.C., and Jaidyn Jackson, law student intern at Klavens Law Group, P.C., for their valuable contributions to this article.

[2] See Waller v. Alqaraghuli, No. 17 MISC 000233, 2017 WL 3380387, at *4 (Mass. Land Ct. Aug. 4, 2017) (Scheier, J.). Although Section 3 does allow regulation of solar facilities as “necessary to protect the public health, safety or welfare,” in the case of a local zoning bylaw whose prohibition of solar use is preempted, a local zoning board cannot then choose to regulate solar use “by a case-by-case determination by the Board.” Id. at *5 n.7.

[3] See, e.g., Letter from the Office of the Attorney General Municipal Law Unit to Town of Plympton, at 2 (Apr. 3, 2020) , https://massago.onbaseonline.com/MASSAGO/1801PublicAccess/mlu.htm) (input Case Number “9750”; then click “Search”; then follow hyperlink) (advising Town that, [i]n applying [solar bylaw amendments] the Town should consult closely with Town Counsel to ensure that the Town does not run afoul of [Section 3]”).

[4] See PLH LLC v. Town of Ware, No. 18 MISC 000648, 2019 WL 7201712, at *3 (Mass. Land. Ct. Dec. 24, 2019) (Piper, C.J.) (holding that zoning bylaw may require a special permit for solar energy use in a particular district but special permit review “must be limited and narrowly applied in a way that is not unreasonable, is not designed or employed to prohibit the use or the operation of the protected use, and exists where necessary to protect the health, safety or welfare”); cf. Waller at n.7 (suggesting that municipal authority under Section 3 to regulate solar use as necessary to protect public health, safety and welfare can only be exercised in crafting a generally applicable bylaw, not to justify case-by-case determination with respect to particular projects).

[5] See, e.g., Ayotte v. Town of Cheshire Planning Board, CA No. 17-275, slip. op. at 9-13 (Mass. Sup. Ct. May 4, 2018) (Ford, J.) (refusing to uphold planning board’s denial of special permit for solar project based on concerns about solar glare and inadequate screening and remanding to the board “for the consideration and imposition of any reasonable conditions”) (emphasis in original).

[6] Briggs v. Zoning Board of Appeals of Marion, No. 13 MISC 477257, 2014 WL 471951 at *4 (Mass. Land Ct. Feb. 6, 2014) (Sands, J.).

[7] Duseau v. Szawloski Realty, Inc., Nos. 12 MISC 470612, 12 MISC 477351, 2015 WL 59500 at *8 (Mass. Land Ct. Jan. 2, 2015) (Cutler, C.J.); PLH LLC, 2019 WL 7201712 at *3.

[8] Briggs, 2014 WL 471951 at *4.

[9] Duseau, 2015 WL 59500 at *8 & n.11.

[10] PLH LLC, 2019 WL 7201712 at *3.

[11] See 225 CMR 20.07(4)(g); Mass. Dep’t of Energy Resources, Guideline Regarding Land Use, Siting, and Project Segmentation at §§ 3, 4(b) (revised Oct. 8, 2020)  (the “Land Use Guideline”).

[12] See Land Use Guideline, §§ 5(4)-(5).

[13] See 225 CMR 20.02 (definition of Agricultural Solar Tariff Generation Unit) and 20.06(1)(d) (eligibility requirements); Guideline Regarding the Definition of Agricultural Solar Tariff Generation Units (the “ASTGU Guideline”).

[14] Mass. Dep’t. of Rev., FAQs on Classified Forest, Agricultural/Horticultural and Recreational Land (revised Mar. 15, 2019)  (the “FAQs”).

[15] In addition, Sections 14(A) and (B) of the FAQs state that any roll-back and conveyance tax are to be assessed “only on that portion of the land on which the use has changed to the non-qualifying use.”

Jonathan Klavens is the principal of Klavens Law Group, P.C.  He practices across the fields of corporate, land use and environmental law, with a special focus on the development, financing and purchase and sale of clean energy projects, as well as the formation, financing and ongoing support of cleantech companies. 

Courtney Feeley Karp is senior counsel at Klavens Law Group, P.C. where she advises clients on development and compliance matters for clean energy projects, including those located on agricultural land. Previously she served as counsel at the Massachusetts Department of Energy Resources and the Massachusetts Senate Ways & Means Committee.

Betsy Mason is senior counsel at Klavens Law Group, P.C., where she focuses her practice on resolving real estate, land use and permitting, and environmental compliance issues arising during the development, construction and acquisition of renewable energy projects.  Her past positions have included, among others, in-house counsel for real estate and business development at a leading national solar developer and Senior Assistant Regional Counsel at EPA Region 1 in Boston.


In the Matter of a Grand Jury Investigation, 485 Mass. 641 (2020)

by Victor Hansen

Case Focus

In one of his last opinions before his untimely passing, Chief Justice Ralph Gants addressed the unique and important responsibility of the criminal prosecutor to do justice.  In fulfilling this responsibility, the prosecutor acts not as an extension of law enforcement but as an important check against corrupt and abusive practices.  These reminders came in the Matter of a Grand Jury Investigation involving two police officers (the petitioners) who admitted filing false police reports regarding the use of force by a fellow officer.

While on duty, the petitioners observed, but did not participate in, the arrest of a citizen charged with, among other things, resisting arrest.  The arresting officer, Michael Pessoa, claimed that the arrestee was noncompliant and threatening, and that force had to be used to subdue him, as a result of which the arrestee was injured.  The petitioners supported Pessoa’s version when they completed an internal departmental report of the arrest.  However, video evidence revealed that the arrestee had not resisted.  Rather, Pessoa had struck the compliant arrestee with his head and shoulder, knocking the arrestee to the ground “in a violent manner.”

During an ensuing grand jury investigation into Pessoa’s conduct, the petitioners testified under grants of transactional immunity and admitted to lying in their departmental reports.  The district attorney sought permission from the Superior Court to disclose this information to criminal defendants in other cases where the petitioners could be potential witnesses, asserting that due process required the disclosure of this potentially exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972).  The petitioners sought to prevent the disclosure of their testimony.

In its decision, the Supreme Judicial Court addressed three questions: (1) whether Brady requires disclosure of this information in unrelated cases; (2) whether, if there is such an obligation, the district attorney could disclose the evidence even if it was obtained pursuant to a grant of immunity and order to testify before the grand jury; and (3) whether, if there is a Brady obligation, the prosecutor must seek prior judicial approval before disclosing the evidence.  The Court concluded that the prosecution had an obligation to produce the discovery at issue without a court order.  Writing for the Court, Chief Justice Gants powerfully reaffirmed that prosecutors do not serve a narrow constituency and are not merely an arm of law enforcement. Rather, the prosecution has the unique and important responsibility to seek justice.

First, the Court took a broad view of the type of evidence that falls within the scope of Brady. Brady covers not merely direct evidence of a defendant’s possible innocence, but equally information that challenges the credibility of key prosecution witnesses (the type of evidence at issue in this case).  The Court also noted that the prosecution’s disclosure obligations are broader than Brady, the Massachusetts Rules of Criminal Procedure, and the Rules of Professional Conduct require prosecutors to disclose all evidence or information that tends to negate the guilt of the accused or mitigate the offense.  The Court thus included within Brady not only the constitutional obligation to disclose exculpatory information but also the broader obligation to make disclosure under Massachusetts rules.

Second, the petitioners argued that the failure to disclose this evidence in other criminal cases would not automatically require new trials in those cases because, even if a defendant were convicted, the information is not exculpatory.  The Court rejected this argument for two reasons: it reflected a too narrow view of the scope of a prosecutor’s Brady obligation, and because such an approach would encourage prosecutors to game the system and only consider how much exculpatory information they could safely withhold. Chief Justice Gants reminded us that we expect more from prosecutors than gamesmanship: rather than operating close to the ethical sidelines, prosecutors must operate in the middle of the field.  According to the Chief Justice, “once the information is determined to be exculpatory, it should be disclosed – period.” And if the prosecutors are at all in doubt about the exculpatory nature of the evidence, they should err on the side of caution and disclose it.

Applying this standard, the Court had little difficulty determining that, when police officers lie in official reports, such information is exculpatory and must be disclosed to any criminal defendant in whose case those officers may testify.

The petitioners also argued that the immunity grant they had received in exchange for their grand jury testimony should be applied broadly.  They contended that, if their falsehoods were disclosed to defendants in other cases, it would penalize the police officers for invoking their privilege against self-incrimination and violate the protections they received from the immunity grant.  The Court concluded, however, that, while the evidence was compelled, that did not affect the prosecutors’ Brady obligations.  Even though the disclosed exculpatory information might paint the petitioners in a bad light and reveal their “dirty deeds,” the grant of immunity protected the petitioners only from prosecution and not embarrassment. Chief Justice Gants reminded prosecutors that complying with their Brady obligations might be inconvenient, uncomfortable, embarrassing or worse, but that prosecutors cannot fail to disclose Brady material out of a misplaced sense of duty or loyalty to law enforcement, or to prevent embarrassing themselves or members of their office, public officials or potential witnesses.  Although avoiding needless or gratuitous embarrassment is worthwhile, that interest never outweighs a criminal defendant’s due process rights. Disclosure is always the correct choice, even when it may have a short term impact on the relationship between prosecutors and others, including law enforcement officials.

Finally, the Court addressed whether prior judicial approval is required before disclosing Brady material that was part of a grand jury proceeding.  The Court again referred to the duties of the prosecutor.  While maintaining grand jury secrecy is important, the Massachusetts Rules of Criminal Procedure governing grand jury secrecy provide that prosecutors may disclose matters occurring before the grand jury doing so is within the official performance of their duties. Just as prosecutors have an official duty to present inculpatory evidence to a grand jury, they have an equally important duty to disclose exculpatory information that may enable defendants to prove their innocence.  Accordingly, the prosecution can disclose this Brady information without a court order as part of their official duties. Chief Justice Gants again emphasized that prosecutors represent not an ordinary party, but of a sovereignty whose obligation is to govern impartially.

Many familiar with the role and functions of the prosecutor may not find the Court’s ruling surprising. The ethical and constitutional obligations of the prosecutor are broad and, to its credit, the lawyers in the district attorney’s office recognized those obligations and proactively complied with them.  One might wonder, then, why Brady violations continue to be a persistent problem in the criminal justice system, both nationally and in Massachusetts. Indeed, one of the most egregious Brady violations in the Commonwealth’s recent history occurred not long ago, when prosecutors failed to disclose the breadth of an Amherst drug lab technician’s substance abuse problems, which affected many hundreds of criminal cases.

The reasons why Brady violations persist are complicated and varied, including confirmation bias, the difficulty of prosecutors policing themselves, the desire of prosecutors to have good working relationships with law enforcement, job security, and even racial bias.  It is a fitting testament to Chief Justice Gants’ legacy that he clearly recognized that none could outweigh a criminal defendant’s right to a fair trial. The Chief Justice’s opinion serves as a poignant and important reminder that our criminal justice system is far from perfect, and that prosecutors, when they are motivated and guided by a sense of doing justice, have a critical role to play to ensure it is just.

Professor Victor M. Hansen, Professor of Law, directs the Criminal Practice and Procedure certificate program and teaches Criminal Law, Criminal Procedure, Evidence, and Prosecutorial Ethics at New England Law | Boston. He is the author of several articles and books on criminal and military law, evidence, and national security issues, and is an elected member of the American Law Institute.