Chief Justice Gants and the Power of ConcurrencePosted: December 16, 2020
by Tad Heuer
Judges are often remembered for either their landmark opinions or their incisive dissents, and Chief Justice Ralph Gants wrote both. But over his twelve terms on the Supreme Judicial Court, he wielded adroitly a third option, more frequently than any of his fellow justices. On forty-three occasions — first as an Associate Justice and then as Chief — Justice Gants authored a concurrence.
Concurrences are a legal curiosity. Unlike a dissent, where a judge explains why his colleagues got it wrong, a concurring judge believes the opposite: that his colleagues got it right. Moreover, with each SJC justice writing roughly the same number of majority decisions each term, a concurring justice is voluntarily taking on additional and avoidable work. Yet it is precisely because concurrences are arguably unnecessary that they are so valuable. Concurrences can signal the potential limits of the majority opinion, indicate whether the majority reached the right result but for the wrong reason, or warn where a statute — while clear — creates an unintended result. And when used wisely, and unencumbered by the formal strictures of a majority opinion, a concurrence can illuminate a judge’s perspective on how the law could be more fair and more just.
With a nod to his beloved Boston Red Sox, Chief Justice Gants’ penchant for concurrences is best illustrated by turning to the SJC’s own box score. Chief Justice Gants served with fourteen other justices during his time on the Court and authored 260 opinions, 17 dissents, and 43 concurrences (including six instances when he added further nuance by concurring in part and dissenting in part). While Chief Justice Gants dissented on average about as frequently as his fellow justices (8% of his decisional writings, versus an average of 5% for his colleagues), 13% of his decisional writings were concurrences, compared with only 5% of those of his colleagues. With an average of nearly four concurrences per term, Chief Justice Gants nearly doubled the average of his next closest colleague, while more than tripling the one-concurrence-per-justice-per-term average of his colleagues generally. In raw numbers, he wrote 17 more concurrences than his next-closest colleague, Justice Robert Cordy, who served for four more years than Chief Justice Gants. Indeed, as of the time of his passing he had penned more concurrences than eight of his 14 colleagues combined.
While Chief Justice Gants concurred at least once in every year on the Court, his concurrences became more frequent in recent years with six each in 2017 and 2018, and eight in 2020. Yet he had a knack for attracting company. Of his 43 concurrences, only eleven were on his own: Thirteen brought along one other justice, sixteen brought along two other justices, and one even brought along three others. With 30 concurrences in criminal cases and 13 in civil, his topics ranged widely from homicide instructions and trial procedure to child custody and spendthrift trusts. But examining why he concurred so frequently provides a window into the jurist Chief Justice Gants was.
He used concurrences to point out where the Legislature may wish to revise statutes that compelled counterintuitive results that he perceived as unintentional. In a pair of cases involving the state wiretap statute, Commonwealth v. Tavares, 459 Mass. 289 (2011) and Commonwealth v. Burgos, 470 Mass. 133 (2014), he discussed the problematic practical consequences arising from the statutory requirement of a “connection with organized crime” as a prerequisite for its use, noting:
electronic surveillance is unavailable to investigate and prosecute the hundreds of shootings and killings committed by street gangs in Massachusetts, which are among the most difficult crimes to solve and prosecute using more traditional means of investigation.
“If the Legislature wishes to avoid this result,” he suggested, “it should amend [the statute] to delete those words.” Tavares at 305; Burgos at 149. Similarly, in Commonwealth v. LeBlanc, 475 Mass. 820 (2016), Chief Justice Gants used his concurrence to encourage the Legislature to harmonize contradictory statutory provisions (about when a driver needed to remain at the scene after causing an accident), while in Commonwealth v. Almonor, 482 Mass. 35 (2019) he wrote separately to “underscore the need for the Legislature to give careful consideration to amending G. L. c. 276, § 2B, to permit warrants to be applied for and approved remotely through reliable electronic means.” Id. at 69.
He used concurrences to signal the direction he felt the common law should go. This approach was most prominent in his four-member concurrence in Commonwealth v. Brown, 477 Mass. 805 (2017). In that case, the Court unanimously agreed that the felony-murder rule (permitting a conviction of murder in the first degree for the commission of an underlying violent felony resulting in a death) was constitutional. Chief Justice Gants nonetheless saw the opportunity through concurrence to narrow prospectively the scope of the rule to require actual – not constructive – malice inferred from the underlying felony:
When our experience with the common law of felony-murder liability demonstrates that it can yield a verdict of murder in the first degree that is not consonant with justice, and where we recognize that it was derived from legal principles we no longer accept and contravenes two fundamental principles of our criminal jurisprudence, we must revise that common law so that it accords with those fundamental principles and yields verdicts that are just and fair in light of the defendant’s criminal conduct.
Id. at 836.
This attention to ensuring that the development of the common law reflect the practical reality of the contemporary world pervaded other concurrences as well. In Commonwealth v. Berry, 466 Mass. 763 (2014), then-Justice Gants concurred to identify “an apparent inconsistency in our common law of homicide that we should confront when the issue next arises, i.e., whether a defendant’s state of mind must be considered in determining whether a murder is committed with extreme atrocity or cruelty.” Id. at 778. And in Miller v. Miller, 478 Mass. 642 (2018), involving a contentious child custody dispute, Chief Justice Gants concurred to argue that in future, the Court should consider discarding what he termed the “artificially binary decision-making framework” cobbled together from prior cases, and establish a “single, uniform standard — the best interests of the child — to be applied to all [custody] removal cases,” id. at 659. He expressed concern that the existing “formalistic approach” could have “serious consequences for the parties involved.” Id. at 662.
And in a technical mortgage foreclosure case, U.S. Bank National Association v. Schumacher, 467 Mass. 421 (2014), then-Justice Gants’ concurrence was arguably more important than the majority opinion. The Schumacher Court held that because the statutory pre-foreclosure requirement (notice and a cure period) was not part of the exercise of the power of sale and foreclosure, failure to comply with the statute could not be raised as a defense in a post-foreclosure eviction action. Justice Gants agreed that the statute controlled the facts of the case, but wrote separately to express his concern about the “practical consequences of this opinion.” Id. at 431. His concurrence laid out his view of when it was appropriate to raise the statute as a defense: if the failure to comply with the statute “rendered the foreclosure so fundamentally unfair that [the defendant] is entitled to affirmative relief, specifically the setting aside of the foreclosure sale.” Id. at 433. This “fundamental unfairness” standard is now applied routinely in post-foreclosure actions.
He used concurrences to provide guidance to the lower courts. Sometimes his concurrences signaled that lower courts should be cautious about applying a majority decision too broadly. For example, he concurred in Flagg v. AliMed, Inc., 466 Mass. 23 (2013), primarily to “emphasize the limited scope of [the majority] holding, because I fear that ‘associational discrimination’ might otherwise be interpreted more broadly than the court’s opinion intends.” Id. at 39. Similarly, he concurred in Commonwealth v. Lopez, 458 Mass. 383 (2010), to clarify the “distinction between a search of a home and entry into a home, which, although it does not affect the outcome of this case, may have bearing on the validity of consent in other search cases.” Id. at 399.
In other instances, his concurrences provided frameworks for how lower courts might evaluate rapidly-changing areas of the law, particularly involving technology. These ranged from offering detailed thoughts on “how electronic automatic license plate reader data could be used by law enforcement consistent with constitutional rights to a reasonable expectation of privacy” (Commonwealth v. McCarthy, 484 Mass. 493, 512-13 (2020)), to clarifying his view that the law provides no “safe harbor to conduct a search incident to arrest of text messages or electronic mail messages” found on a cell phone (Commonwealth v. Phifer, 463 Mass. 790, 799 (2012)). Chief Justice Gants used concurrences to encourage his former trial court colleagues — faced with applying existing laws to new and novel factual scenarios — to think thoughtfully about how the Court might view those efforts on appeal.
He used concurrences to give voice to both the challenges and humanity inherent in the complex work of getting justice right. In Schumacher, he began his concurrence by acknowledging that “many mortgage borrowers who will claim such violations will not have the benefit of legal representation, and that our jurisprudence in this area of law is difficult for even attorneys to understand.” 467 Mass. at 431. In Commonwealth v. Williams, 481 Mass. 443 (2019), concurring in a case involving race and jury selection, Chief Justice Gants admitted that from his own experience as a trial judge “there are times, with the benefit of additional thought and the wisdom of hindsight, in which a judge will recognize that a discussion with a juror could have been handled more artfully.” Id. at 458. And he concurred to urge the Court to ensure that its decisions would be understood by the public as being consonant with justice. As he wrote in his concurrence in Commonwealth v. Johnson, 461 Mass. 1 (2009), “[w]e neither ensure that we do justice in a case of murder in the first degree nor ensure the public’s confidence that justice is done where we fail to address on the merits an issue that was never fairly considered because the underlying facts were mistakenly presented by the court on direct appeal.” Id. at 9.
Perhaps most importantly, he used concurrences to highlight what he saw as unfairness. In Commonwealth v. Baez, 480 Mass. 328 (2018), he concurred “to encourage the Legislature to consider the wisdom and fairness of the mandatory minimum aspect of [certain] enhanced sentences, especially where the predicate offenses were committed when the defendant was a juvenile.” Id. at 332. In Deal v. Massachusetts Parole Board, 484 Mass. 457 (2020), he used his concurrence to levy forceful criticism of the failure of the Parole Board to provide “meaningful individualized consideration” to the “distinctive attributes of youth offenders” when making parole decisions. While concurring in the denial of parole because such guidance did not exist at the time of Deal’s hearing, he warned that in future, “we would expect meaningful individualized findings that are far less conclusory and perfunctory than here.” Id. at 470. While only a concurrence, it signaled a disapproval for the Parole Board to ignore at its peril. And it was not only litigants whom Chief Justice Gants sought to protect from unfairness. In Commonwealth v. Leiva, 484 Mass. 766 (2020), he agreed with the Court’s revision of the protocols governing the conduct of defense counsel when their clients intend to testify falsely, but took issue with the majority’s “assumption . . . that defense attorneys will not abide by their ethical obligations to the court when hard decisions have to be made. . . .” He concurred to emphasize that such an assumption “is unfair to the defense bar.” Id. at 798.
Chief Justice Gants concurred up to the very end. Indeed, his last concurrence came in Commonwealth v. Long, 485 Mass. 711 (2020), released just days after his passing. Long addressed the charged issue of racial profiling in traffic stops, and although unanimous, generated multiple concurring opinions. Chief Justice Gants used his four-paragraph concurrence in Long to do three different things. First, he wrote as a justice, to emphasize that the motive of a law enforcement officer matters, and to reiterate that an officer cannot conduct an “inventory” search as a pretext for a more invasive “investigatory” search. Id. at 736. In so doing, he signaled that he would be watching closely in future cases for whether form was being exalted over substance. Second, he wrote as a colleague, explaining why he agreed in part with the more expansive concurring opinion of a colleague, but felt it unnecessary for the Court to reach certain additional constitutional questions identified therein. Id. And third, he wrote as the Chief Justice, in an effort to prevent intramural disagreements over the details from clouding the legal importance of the majority opinion in the eyes of the public: “[D]espite our jurisprudential differences reflected in the various opinions in this case, the court is unanimous in concluding that a motor vehicle stop that arises from racial profiling is unconstitutional . . . .” Id. This keen awareness of the subtle power of the concurrence—from the legal to the practical—demonstrates Chief Justice Gants’ acumen for the form at its finest.
In 1822, Thomas Jefferson complained in a letter to Supreme Court Justice William Johnson that the trend of the collective majority opinion disguised “whether every judge has taken the trouble of understanding the case, of investigating it minutely, and of forming an opinion for himself, instead of pinning it on another’s sleeve.” Chief Justice Gants was never at risk of such remonstration: his numerous concurrences reveal a justice who took the trouble to understand cases, who investigated cases minutely, and who took seriously his responsibility to offer the bench, bar, Legislature, and general public his own insights on how to do better justice.
Tad Heuer is a partner at Foley Hoag LLP, where his administrative law practice focuses on appellate litigation and on advising clients regarding complex federal, state, and local regulatory matters ranging from land use to energy. He clerked for Supreme Judicial Court Chief Justice Margaret H. Marshall during the 2006-07 term, and is a member of the Boston Bar Journal Board of Editors.