by Jason (“Jay”) Talerman
Massachusetts is a home rule state, with 351 cities and towns governed by 351 different sets of bylaws and regulations. For a prospective developer of land, that means navigating through 351 sets of zoning codes, subdivision regulations, and wetlands bylaws. Furthermore, in the already highly-developed towns in eastern Massachusetts, land that is undeveloped is often marginal in quality, and therefore may implicate local land use bylaws, ordinances and regulations. In such instances, even the most beneficial of local enactments may operate to restrict the scope of development and, in some circumstances, may even preclude a proposed development altogether.
It is in these circumstances that the specter of a regulatory taking, also known as an inverse condemnation, may become the subject of dispute between a developer and a municipality. Unlike a more traditional affirmative exercise of eminent domain authority, a regulatory taking is a more passive consequence of the application of an otherwise legally-adopted land use regulation.
The legal landscape shaping regulatory takings in Massachusetts was recently affected by two notable decisions: (1) the decision of the Massachusetts Appeals Court in Smyth v. Conservation Commission of Falmouth, 94 Mass.App.Ct. 790 (2019), which held that there is no right to a jury trial on “the question [of liability as to] whether a particular regulatory scheme has effected a regulatory taking,” id. at 796, and (2) the decision of the United States Supreme Court in Knick v. Township of Scott, Pennsylvania, 588 U.S. ___,139 S.Ct. 2162 (2019), which held that exhaustion of state court remedies is not a prerequisite to bringing a § 1983 takings claim in federal court. While these cases, viewed in isolation, address different issues, they may, when viewed together, affect the approach that a landowner may take when contemplating the advancement of a regulatory takings claim.
Background on Regulatory Takings
It is important to note at the outset that a claim for a regulatory taking has not traditionally been treated as a formal claim for a “taking.” While borne from the same Constitutional Fifth Amendment guarantee against a governmental seizure of property, “a claim of regulatory taking involves a preliminary (albeit significant and complex) question whether a taking has occurred at all.” Smyth, 94 Mass.App.Ct. at 795-96. That is, the threshold focus of a regulatory takings case is the question of liability. A conclusion that a regulatory taking has occurred will be justifiable where “governmental regulation [is] … so onerous that its effect is tantamount to a direct appropriation or ouster.” Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 537 (2005). However, not every governmental regulation that operates to preclude development effectuates a taking; and a claim of regulatory taking will only be sustained where there is either a physical invasion of property or where the regulation in question operates to “completely deprive an owner of ‘all economically beneficial use’ of her property.” Id. at 538 (quoting Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1019 (1978) (emphasis in original). Only once a plaintiff has prevailed in this preliminary element of a regulatory takings claim may he proceed to seek an award of damages for the taking.
Despite the Constitutional predisposition against uncompensated takings, case law reveals that it is quite difficult to prevail in a regulatory taking claim. This is because even though a governmental regulation may sharply reduce the value of a property, a modest residual value may be sufficient to defeat a claim of regulatory taking. In Pallazzolo v. Rhode Island, 533 U.S. 606, 631 (2001), an 18-acre parcel appraised at $3,150,000 was limited, by State regulation, to the development of a single residential lot valued at $200,000, and the Court nevertheless concluded that such residual value was sufficient to defeat a claim of inverse condemnation. Closer to home, in Gove v. Zoning Board of Appeals in Chatham, 444 Mass. 754 (2005), the Massachusetts Supreme Judicial Court contemplated the impact of a municipal zoning regulation on a potentially lucrative residential lot along Chatham’s waterfront. The zoning provision rendered the development of a house on the lot impossible and litigation ensued. While various other facts considered by the Court were relevant, the Court ultimately concluded that a residual value of only $23,000 (the value of the property for assemblage purposes with adjoining properties) was sufficient to dismiss the complaint and find in favor of the town. Id. at 763. See also Smyth, 94 Mass.App.Ct. at 797-98 (economic impact on plaintiff a factor in determining whether regulatory taking occurred).
Massachusetts Appeals Court Decision in Smyth
In a traditional takings action, where a municipality (or other authorized governmental subdivision) takes property under General Laws c. 79, a jury will determine damages. In the calculation and award of damages, it is not uncommon for Massachusetts juries to award in excess of the amount at which the municipality originally valued the property in a taking (known as a pro tanto award). Accordingly, a practitioner may conclude that a jury may possibly be more sympathetic than a judge when evaluating a regulatory takings claim. However, in Smyth, which contemplated the preclusive effect of a local wetland bylaw, the Appeals Court foreclosed the availability of a jury trial when pursuing the initial question of liability under a regulatory takings claim. The Court held that, in Massachusetts, “the right to a jury trial is established by Article 15 of the Massachusetts Declaration of Rights which has been construed as preserving the right to a trial by jury in actions for which [such a right] was recognized at the time the Constitution of the Commonwealth was adopted [in 1780] … .” Smyth, 94 Mass. App. Ct. at 793 (internal citations omitted). This meant that, in an “ordinary claim of regulatory taking”, “the question whether the plaintiff is entitled to a jury trial … depends on whether it is analogous to a common-law claim entitled to a trial by jury in 1780 or whether it is a wholly new cause of action.” Id. at 794. Emphasizing that the facts alleged did not warrant a conclusion that the taking was analogous to an action in common-law tort such as trespass, id. at 794, the Court ultimately concluded that “the question of liability in a regulatory taking claim is a ‘wholly new’ cause of action, to which the right to a jury trial does not attach.” Id. at 796. Thus, while consideration of what may constitute “just compensation” is a question that is appropriately put to a jury, the underlying liability question remains the province of the trial court judge, who is charged with applying the balancing test as detailed in Smyth and the cases cited therein. Id. at 797-98.
U.S. Supreme Court Decision in Knick
The U.S. Supreme Court’s decision in Knick marks a significant departure from the pre-existing process for pursuing a claim for a regulatory taking in federal court. In a 5-4 decision, the Supreme Court reversed a long line of cases that required plaintiffs with a regulatory takings claim to pursue their actions in state court before pursuing a Fifth Amendment claim under 42 U.S.C. § 1983 in federal court. 588 U.S. at ___, 139 S.Ct. 2177-79. Viewing the right to seek damages as accruing at the instant the governmental regulation proscribed a proposed development, the Supreme Court ruled that there was no exhaustion prerequisite to seeking relief in federal court. Id. Accordingly, in the post-Knick landscape, a disgruntled developer may choose, at its discretion, to skip state court altogether and seek compensation for a regulatory taking in one fell swoop in federal court under § 1983.
Practice Implications of Smyth and Knick
While a door for plaintiffs seemingly was shut – in most instances – by virtue of the Smyth decision, it likely swung wide open with the U.S. Supreme Court’s decision in Knick. In Knick, the Supreme Court did not address the question of whether a jury trial attaches to a regulatory taking action, as discussed in Smyth. However, while all actions under 42 U.S.C. § 1983 are not automatically entitled to be heard by a jury, the right to a jury in a regulatory taking claim sounding in § 1983 was firmly established in Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 721 (1999). Accordingly, when read together with prior precedent, Knick stands for the proposition that a Massachusetts plaintiff may, at its option, skip a bench trial in Massachusetts court and pursue a regulatory claim before a jury in United States District Court. As a consequence, the main thrust of the Smyth decision will not affect a plaintiff that opts for a federal court forum.
Despite the holding of Knick, not all regulatory takings claims are well-suited for a federal court where, as noted by the dissent, complex review of a municipal regulatory scheme must be undertaken. 588 U.S. at ___, 139 S.Ct. at 2187-88. This is especially so where a federal court would have to delve into the intricacies of a detailed local zoning wetland bylaw. However, following the Knick decision, a well-resourced litigant that feels it would benefit from a jury rather than a trial before a state court judge steeped in experience interpreting local regulation, may choose to bring their original action in federal. Conversely, a litigant that may not have the resources to navigate through a federal court jury trial may choose the nuanced review that occurs at the state trial court level. Only time will tell if the results of these two paths are disparate. Until then, there will be significant speculation as to whether verdicts and awards by a federal jury will change the calculus for landowners that are contemplating suit for a regulatory taking.
Jason (“Jay”) Talerman is a founding partner of Mead, Talerman & Costa, LLC which primarily represents municipalities and select private clients in municipal and land use matters. Jay has been practicing municipal law for more than two decades. Jay’s firm serves as Town Counsel and Special Town Counsel for dozens of Massachusetts municipalities.
The Cross-Examination of Complainants And the Due Process Rights of Respondents in Student Disciplinary Proceedings After Haidak v. University of Massachusetts-AmherstPosted: November 14, 2019
by R. Victoria Fuller
In Haidak v. University of Massachusetts-Amherst, the First Circuit Court of Appeals discussed the obligations of public colleges and universities under the Due Process Clause of the Fourteenth Amendment to the United States Constitution when conducting student disciplinary proceedings. Importantly, the Court held that a responding party has no right to cross-examine the complainant or other adverse witnesses, even where the case turns on credibility determinations. The holding represents a significant split from the Sixth Circuit and further leaves public educational institutions without concrete guidance regarding due process requirements where a non-adversarial procedure is utilized in a contested disciplinary proceeding.
The Complaint, and the University’s Response
In Haidak, a female student reported to the university that a male student, with whom she had been romantically involved, physically assaulted her.
The university’s code of conduct required the university to send the responding party a notice of charge (“NOC”) and provide 48 hours to request a disciplinary conference. The code of conduct permitted an interim sanction, such as a suspension, without prior notice, but only where the NOC involved a serious violation and a university official had determined that the student was a threat to self, others, or property.
The university issued an NOC to the respondent for physical assault and endangering behavior to persons or property, which included a no-contact order. Regardless, the male and female student promptly resumed consensual contact.
After the complainant’s mother alerted the university to the no-contact order violation, the university issued the respondent a second NOC for harassment and failure to comply with the direction of university officials, which included the same no-contact order.
Contact between the students continued. The complainant (and her mother) again reported to the university that the respondent violated the no-contact order. The university took no action for two weeks and then issued a third NOC, this time suspending the respondent without prior notice. The university informed the student that he had a right to a meeting to discuss the suspension with a university official, but took no immediate action to schedule a hearing.
The respondent remained suspended for approximately two months over the summer. Near the end of the summer, the university notified him that the suspension would continue pending a hearing on the assault charge, but the university took no action to schedule one. At the beginning of the fall semester, the respondent withdrew from the university. The university then offered him three potential dates for the hearing, and he chose a date on which he knew he could not attend in-person, only by phone.
The hearing board (“Board”) found the respondent responsible for assault and failure to comply with the no-contact order, but not for endangerment or harassment. Pursuant to the code of conduct, the Board sent its report to the Dean of Students. In reliance on the Board’s report, and in light of the student’s prior disciplinary history, the Dean of Students expelled him.
The University Violated Due Process By Suspending the Respondent Without Prior Notice and a Hearing
Students at public educational institutions are entitled to certain procedural due process rights. The two essential requisites of procedural due process are (1) prior notice; and (2) a hearing. Because suspension deprives a student of all of the benefits of being enrolled, the Court recognized due process generally mandates prior notice and a hearing. Although a university may suspend a student before providing notice and a hearing in limited, exigent circumstances, the university could not establish such circumstances. Indeed, it waited nearly two weeks after learning about the second no-contact order violation to suspend the respondent. Moreover, the “informal interview” that the respondent received after suspension was insufficient to satisfy due process. If the university had conducted a hearing before suspending the student, it would have learned that the continued contact was non-threatening and mutual, and it likely would not have suspended him in the first place. Therefore, the Court held that the university violated the respondent’s right to due process by suspending him for five months without prior notice or a hearing.
The University Did Not Violate Due Process By Denying the Respondent the Opportunity to Cross-Examine the Accuser
The Court held that the respondent’s due process rights were protected, however, at the eventual Board hearing. In particular, the Court noted that (i) the hearing was conducted in accordance with the university’s written procedures, which were provided to the respondent in advance; (ii) the university bore the burden of proof; (iii) the hearing was limited to charges of which the respondent received detailed notice; and (iv) the respondent was invited to be present (although he chose to attend by telephone), hear all evidence against him, respond directly himself, call witnesses, and have an attorney.
Because the hearing turned directly on credibility determinations, the student argued that he had been denied a due process right because he was not allowed to cross-examine the complainant. Instead, he had submitted questions for the Board to pose to her, and a university official eliminated many of the questions. The Court rejected this argument.
The Court noted that the university used a non-adversarial, “inquisitorial” system, under which the university assumed responsibility for investigating the facts and developing the arguments. The Court held that an inquisitorial system did not, in itself, violate the Due Process Clause, as long as the university conducted reasonably adequate questioning. That said, the Court recognized that the university’s procedure could render a proceeding unfair, because: (1) the Board’s manual instructed hearing officers to calm a complaining student with non-leading, non-adversarial, and “easy” questions; and (2) a university official struck some of the respondent’s proposed questions before providing his list to the Board. Nonetheless, having reviewed the hearing, the Court concluded that, while the procedure rendered the potential for unfairness, namely a failure to effectively confront an accuser, the hearing was not unfair because the Board adequately questioned the complainant.
The First Circuit’s holding differs from that reached by the Sixth Circuit. In Doe v. Baum, 903 F.3d 575, 582-3 (6th Cir. 2018), the Sixth Circuit held that due process mandated that the school permit cross-examination of an accuser (and other adverse witnesses) in all cases turning on credibility determinations. Although recognizing that cross examination, in the “hands of an experienced trial lawyer is an effective tool” to discovering the truth, the First Circuit declined to adopt the Sixth Circuit’s approach, in part because the Court determined that it had “no reason to believe that questioning of a complaining witness by a neutral party is so fundamentally flawed as to create a categorically unacceptable risk of erroneous deprivation.”
Would the outcome have been different, though, if the university official had struck a few more questions? Would the Court have held that the Board violated the respondent’s due process rights by failing to conduct an adequate examination? Given this inherent potential for procedural unfairness, a public educational institution that implements a non-adversarial system with no opportunity for cross-examination arguably invites judicial scrutiny each and every time it conducts a hearing in a case turning on credibility, putting courts in the business of deciding the adequacy of the examination on a case-by-case basis.
Indeed, Haidak may lead public educational institutions to conclude that the only way they may unquestionably comply with due process is to permit cross-examination in such proceedings, and thus abandon the truly inquisitorial system. However, if the educational institution chooses to permit cross-examination in an otherwise non-adversarial system, how should it do so? Through questions submitted to the hearing panel, or by permitting the respondent or a representative to conduct the cross-examination (and thereby risk re-traumatizing a complainant)? The answers to these types of questions will no doubt have to be addressed by future cases.
Where disciplinary proceedings turn on credibility, public educational institutions that have implemented a non-adversarial system will have to decide whether to permit cross-examination, and if so, how it should be conducted. Although the First Circuit recognized that the inquisitorial, non-adversarial approach did not alone deprive a responding student of a constitutional right, it made clear that the improper implementation of such a system may violate his or her rights. Haidak may inadvertently have invited students unhappy with a credibility determination after a non-adversarial proceeding lacking cross-examination to file suit challenging whether the questioning at the hearing was “reasonably adequate” to satisfy due process. Without a doubt, Haidak is not the last we will hear on this important legal issue.
Victoria Fuller is an attorney at White and Williams LLP. Her practice focuses on insurance law, employment law, and general commercial litigation.
Commonwealth v. Rosa: The Appeals Court Elaborates the Massachusetts Law on the Parental Privilege to Use Reasonable Force in Disciplining a ChildPosted: August 15, 2019
by David Deakin
In Commonwealth v. Rosa, 94 Mass. App. Ct. 458 (2018), further app. rev. denied, 481 Mass. 1104 (Jan. 24, 2019), a case about the parental privilege to use corporal punishment, the Massachusetts Appeals Court grappled with the extent to which a fact finder should consider a defendant’s approach to parenting. The Appeals Court unanimously upheld the conviction of a father who kicked his five-year-old daughter in the chest hard enough to knock her down and cause her to cry. The Court, however, was divided about the basis for the holding that the Commonwealth had overcome the defense. As each of the three justices on the panel authored an opinion, the criminal bar should expect continuing litigation not only about the scope of the privilege but also about the type and quantum of evidence necessary for the prosecution to overcome the defense.
The Supreme Judicial Court established in Commonwealth v. Dorvil, 472 Mass. 1, 12 (2015) that a parent can use reasonable force in disciplining a child. The SJC explained that “no criminal liability will attach to a parent’s use of force against his or her child as long as ‘(1) the force used against the minor child is reasonable; (2) the force is reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor’s misconduct; and (3) the force used neither causes, nor creates a substantial risk of causing physical harm (beyond fleeting pain or minor, transient marks), gross degradation, or severe mental distress.’” Rosa, 94 Mass. App. Ct. at 461 (parentheses in original), quoting Dorvil, 472 Mass. at 12. Because the parental privilege described above is an affirmative defense, once it is raised by the defendant, the prosecution bears the burden of disproving at least one of the requirements of the defense beyond a reasonable doubt. See Dorvil, 472 Mass. at 13. Each requirement is a question of fact. See id.
After a bench trial, the defendant in Rosa was convicted of assault and battery by means of a dangerous weapon (shod foot) for kicking his five-year-old daughter in her chest, knocking her to the ground, and causing both her and her two-year-old brother to cry. The defendant, who had brought his children with him to a drug store, became angry when his daughter ran and hid from him in the store. The defendant yelled and cursed at the girl. After a few minutes, the defendant went into the line to check out of the store. As he did, his daughter approached him and “grabbed his legs.” He “shoved” her away. The scene repeated itself, and the defendant spoke angrily to his daughter. When she approached him a third time, the defendant kicked her in the chest. As a result, she fell to the ground and cried briefly. In response to a question from a responding police officer about why he had kicked his daughter, the defendant replied, “I don’t raise pussies.” At trial, the defendant testified, claiming that he had “nudged,” rather than kicked, his daughter. The defendant first maintained that he had been concerned that his daughter would be kidnapped and thus used “reverse psychology,” pushing her away so she would stay near him. At another point in his testimony, however, he acknowledged that, by the time he kicked her, he was no longer concerned about kidnapping, and he did not want her close to him. Finally, he claimed his comment that “I don’t raise pussies” was meant to convey that he did not want to raise his children to be victims of bullies.
Justice Wendlandt authored the Court’s opinion affirming the conviction. Justices Englander and Rubin each wrote a concurring opinion. Justice Englander’s concurrence primarily emphasized his dissatisfaction with the second prong of the Dorvil standard. Justice Rubin wrote to express his view that kicking a child could never constitute reasonable force in disciplining a child.
Writing for the Court, Justice Wendlandt explained that “[p]arenting is essential to the reason underlying the privilege, and that aspect of the privilege is embodied in prong two [force used must be “reasonably related to . . . safeguarding and promoting the welfare of the minor”].” Rosa, 94 Mass. App. Ct. at 463. In determining whether the force used by the defendant was reasonable (under both the first and second prongs of the standard), therefore, “the trier of fact should take into account a variety of factors, including ‘the child’s age, the physical and mental condition of the child, and the nature of the child’s offense.” Id. at 461. The Court seemed to conclude unanimously that evidence of a defendant’s “subjective” “emotional state” cannot, by itself, satisfy the Commonwealth’s burden of disproving the defense. Id. at 462 n.2. In his concurrence, however, Justice Englander faulted the prosecution for focusing “unduly on what the defendant said to his child, rather than what he did.” Id. at 470 (Englander, J., concurring) (emphasis in original). Left for another case to resolve is the extent to which the prosecution can rely on the defendant’s subjective emotional state. Justices Wendlandt and Rubin – and possibly also Justice Englander – agreed that the prosecution can introduce evidence “that the defendant’s supposedly legitimate parenting purpose is false . . . .” Id., 94 Mass. App. Ct. at 463. Justices Wendlandt and Rubin viewed such evidence as relevant to disproving reasonableness under both the first and second prongs of the defense. It seems that Justice Englander, who would abandon the second prong entirely, see below, would nonetheless agree that the falsity of an asserted parenting purpose is relevant to reasonableness under the first prong, although this is less clear.
Justice Englander concurred because he agreed that the Commonwealth met its burden to disprove the first prong of the defense, the reasonableness of the force used. He noted, however, that, in his view, “the evidence of unreasonable force here was thin.” Id. at 468. The defendant’s abuse in this case, Justice Englander concluded, was more serious than the “spank” that was held in Dorvil, 472 Mass. at 3, to be justified by the parental privilege, and less serious than “the striking of a child in the face with a belt . . . [leaving] a mark” that was held to be outside the privilege’s scope in Commonwealth v. Dobson, 92 Mass. App. Ct. 355, 357-359 (2017). He thus concurred that the Commonwealth had satisfied its burden of disproving the reasonableness of the force under the first prong, albeit in a close case.
Justice Englander wrote separately also because of his concern that the second prong of the defense “can be understood as an invitation to pass judgment on how a parent has chosen to parent.” Rosa, 94 Mass. App. Ct. at 469 (Englander, J., concurring). Thus, Justice Englander envisioned a “troubl[ing]” scenario in which “a parent will have shown that the force used was reasonable under prong one, but nevertheless is convicted of assault because (in the fact finder’s judgment) the parent’s reasonable force was not reasonably related to disciplining the child.” Id. (parentheses in original). Justice Englander would omit the second prong from the defense to prevent courts from “becom[ing] involved . . . in evaluating the parent’s judgment about how to discipline their child.” Id. at 470. Ultimately, Justice Englander concluded that the reasonableness requirement in the first prong fully captures the requirement that the discipline not be abusive. Encouraging finders of fact to focus on the reasonableness of parental discipline, rather than on the force used to implement it, Justice Englander concluded, creates “the risk . . . that less articulate parents will have more difficulty justifying their actions,” id. at 470 n. 3, and thus be convicted in cases in which more sophisticated parents might be acquitted (or not charged at all).
Justice Rubin also concurred with Justice Wendlandt’s opinion for the Court. He agreed with the Court’s opinion that the Commonwealth had satisfied its burden of proof as to all three prongs. As to the third prong, however, he would have gone even further than the Court. He wrote separately to note that, in his view, kicking a child can never be justified by the parental privilege “because kicking a child always ‘creates a substantial risk of . . . physical harm . . . , gross degradation or severe mental distress.’” Id. at 466 (first ellipses in original; second ellipses added), quoting Dorvil, 472 Mass. at 12.
Although the requirements of the parental privilege are now settled, their limits are anything but. Not only is the case law still in an early stage of development, see Rosa at 468 n.2 (“[o]ur case law is not yet very developed as to what force can qualify as reasonable . . . .”), but also there is still disagreement about whether and/or to what extent the defendant’s subjective intent and purpose in disciplining the child is relevant to the fact finder’s assessment of the reasonableness of the force used. In future cases, therefore, defense counsel will likely rely on language from Justice Englander’s concurrence and, indeed, from footnote 2 of the Court’s opinion, to argue that the prosecution should be prohibited from introducing evidence of the defendant’s emotional state and/or intent or, at least, limited in its ability to do so. Prosecutors will respond that even Justice Englander’s concurrence leaves room for introduction of evidence of the defendant’s animus toward the child and that, at a minimum, the sincerity of the defendant’s stated reason for disciplining the child is always relevant in applying the defense’s second prong.
David Deakin is an assistant attorney general and deputy chief of the Criminal Bureau. Before that, he was a prosecutor in the Suffolk County District Attorney’s Office, where he was chief of the Family Protection & Sexual Assault Bureau. This article represents the opinions and legal conclusions of its author and not necessarily those of the Office of the Attorney General. Opinions of the Attorney General are formal documents rendered pursuant to specific statutory authority.
by Kate M. Carter
In Bellalta v. Zoning Board of Appeals of Brookline, 481 Mass. 372 (2019), the Supreme Judicial Court reaffirmed the process by which a preexisting, non-conforming single- or two-family structure can be altered or expanded, clarifying the framework established by courts wrestling with the “difficult and infelicitous” language of G.L. c. 40A, Section 6 for nearly four decades. Bellalta confirmed that changes to such structures can be made by special permit without the additional need for a variance.
The Section 6 Quicksand
Section 6 regulates the application of local zoning to preexisting, nonconforming structures and uses. Its language reflects a tension between competing philosophies governing the use and development of Massachusetts land. On the one hand zoning is interested in the elimination of nonconformities. But zoning also reflects the notion that “rights once acquired by existing use or construction of buildings in general ought not to be interfered with.” Opinion of the Justices, 234 Mass. 597, 606 (1920). Thus, under Section 6, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun … but shall apply to any change or substantial extension of such use … to any reconstruction, extension or structural change of such structure … except where alteration, reconstruction, extension or structural change to a single or two-family residential structure does not increase the nonconforming nature of said structure. Pre-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority … that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming [structure or] use to the neighborhood.
(Emphasis added). In two sentences, the statute (i) protects previously compliant structures and uses from the effect of subsequently enacted zoning bylaws, (ii) preserves the need to comply with zoning if one wants to change or alter a nonconforming structure or use, and (iii) creates a separate exemption for certain changes or alterations to single- and two-family structures. In Bellalta, the SJC examined the extent of the protections afforded by the “second except clause” to owners of single- and two-family preexisting, nonconforming structures.
Underlying Facts and Procedural Posture
Defendant homeowners owned a unit in a two-unit Brookline condominium. They proposed adding a dormer to add 677 square feet of living space. The building did not comply with the floor area ratio (“FAR”) – the ratio of building gross floor area to lot area – for the zoning district in which it was located. The FAR for the zoning district was 1.0. The FAR for the defendants’ building was 1.14, which would increase to 1.38 with the new dormer.
After being denied a building permit, the defendants applied for, and were granted, a “Section 6 finding” by the Brookline Zoning Board of Appeal. The Board found that the proposed addition and resulting increase in FAR would not be substantially more detrimental to the neighborhood than the nonconforming structure was prior to renovation. Plaintiff abutters appealed, arguing that because Brookline’s bylaw expressly prohibited FAR increases of more than 25%, defendants also needed to apply for a variance – a more difficult and narrowly-available type of zoning relief.
The “Interpretative Framework”
Beginning with Fitzsimmonds v. Board of Appeals of Chatham, 21 Mass. App. Ct. 53 (1985), and culminating with Bjorklund v. Zoning Board of Appeals of Norwell, 450 Mass. 357 (2008), the courts have established a three-step framework to analyze a homeowner’s request to alter, reconstruct, extend, or change a preexisting, nonconforming, single- or two-family home. First, how does the structure violate current zoning? Second, does the proposed change intensify that non-conformity? If the answer to question two is “no”, the proposed change is allowed by right, without the need for relief. Only if the answer to question two is “yes” must a homeowner apply for a finding by the local board that the proposed change will “not be substantially more detrimental than the existing nonconforming use to the neighborhood.” Bellalta, 481 Mass. at 380-81.
In Bellalta, the defendants argued that the new dormer would make the building more consistent with the architecture and dimensions of other buildings on the street. Moreover, the proposed addition was modest – it only increased the habitable space by 675 square feet. Thus, they argued that the new dormer would not be substantially more detrimental to the neighborhood than the existing, nonconforming building. The Board agreed, issued the Section 6 finding, and allowed the project to proceed without a variance. Bellalta, 481 Mass. at 383; see also Gale v. Zoning Board of Appeals of Gloucester, 80 Mass. App. Ct. 331 (2011).
In upholding the Board’s decision not to require a variance, the Bellalta court explained that since the “second except” clause was adopted in 1975, the Legislature has amended Section 6 on multiple occasions, and never clarified the language – thereby ratifying the courts’ interpretative framework. Bellalta, 481 Mass. at 383. To require the defendants to also apply for a variance would allow the Brookline bylaw to eliminate the special protections otherwise afforded preexisting, non-conforming single- or two-family structures by Section 6. Id. at 386 – 87.
Bellalta’s Significance Amidst a Growing Housing Crisis
Underlying the language of Section 6, the resulting interpretative framework, and the Bellalta decision is a value judgment that extra effort should be taken to protect a particular segment of housing stock: single- and two-family homes. The protections afforded preexisting, nonconforming single- and two-family homes would be illusory if owners were obligated to undertake the burden of applying for a Section 6 finding and a variance. Bellalta, 481 Mass. at 383. The time and costs associated with such a process might mean that homeowners would forego the renovation and maintenance of older, “starter” homes leaving them to be torn down and replaced with new, more expensive housing. Id. at 384. Bellalta’s re-affirmation of the “special protections” afforded to single- and two-family homes is particularly important amid today’s housing crisis. Section 6 provides a valuable counterbalance to municipalities seeking to stifle housing production by increasing minimum lot sizes or other dimensional requirements. Bellalta, 481 Mass. at 384 – 85. The Section 6 process allows homeowners to make changes to accommodate evolving housing needs, without adding additional demand to an undersupplied housing market. By affirming the streamlined process by which homeowners of preexisting, nonconforming single- and two-family homes can make changes to their homes, the SJC in Bellalta, reaffirmed the Legislature’s decision to protect single- and two-family homes. Section 6’s protections will continue to play an important part in helping to address Massachusetts’ growing need for more habitable living space within an increasingly expensive and diminishing pool of available land.
Kate Moran Carter is a shareholder at Dain ǀ Torpy. She represents clients in disputes concerning the ownership, operation, development, and use of real estate.
 If the proposed change will create new nonconformities, a variance will be required.
 In Bjorklund, the SJC sanctioned certain types of improvements, without the need for a Section 6 finding, because the small-scale nature of such improvements “could not reasonably be found to increase the nonconforming nature of the structure.” 450 Mass. at 362 – 63. Although the Bellalta court implied that the defendants’ proposed dormer was the type of small-scale improvement, that would not require a Section 6 finding, the defendants had conceded that the proposed increase in FAR from 1.4 to 1.38 would increase the structure’s nonconforming nature. Bellalta, 481 Mass. at 381 – 82.
by Michael Sacco
In a unanimous decision in two companion cases, Essex Regional Retirement Board v. Swallow and State Board of Retirement v. O’Hare, 481 Mass. 241 (2019) (Swallow/O’Hare), the Supreme Judicial Court (SJC) has determined that a law enforcement officer will not be required to forfeit his pension after a criminal conviction unless there is a direct link — either factual or legal — between the officer’s off-duty conduct and his position. This is the same standard to which other public employees in Massachusetts are held. This decision startled many in the public pension community. Only the legislature may change the standard to which law enforcement officers are held, by expanding the pension forfeiture statute’s narrow scope.
A Brief History of the Public Pension Forfeiture Law
Pension forfeiture provisions have existed in the retirement statute since the retirement law was codified in Chapter 32 of the Massachusetts General Lawsin 1945. The statute states that if a public employee is convicted of certain enumerated statutory offenses or misappropriation of the employer’s funds or property, the employee forfeits any right to a pension and receives a return of any contributions made to their annuity savings account. In 1986 however, the SJC held in Collatos v. Boston Retirement Board, 396 Mass. 684 (1986), that the legislature intended G. L. c. 32, § 15 (3A) to require forfeiture of a public employee’s pension only if the employee was convicted of two state crimes, G. L. c. 268A, § 2 (corrupt gifts, offers or promises to influence official acts, corruption of witnesses) and G. L. c. 265, § 25 (attempted extortion), and thus the public employee’s guilty plea to violating 18 U.S.C. Section 1951 (extortion) would not require pension forfeiture. The SJC construed the statute narrowly because of its penal character.
Shortly after the Collatos decision, the legislature amended the statute by inserting G. L. c. 32, § 15 (4), which provided an intermediate level of pension forfeiture if the criminal conviction was a “violation of the laws applicable to his office or position.” While Section 15 (3A) required a complete forfeiture of pension rights, Section 15 (4) provided that a pension forfeiture would entitle the public employee to a return of his accumulated total deductions (funds withheld from the employee’s weekly check and paid to the retirement system), less any interest accrued thereon.
The first SJC decision interpreting Section 15 (4) was Gaffney v. Contributory Retirement Appeal Board, 423 Mass. 1 (1996). In Gaffney, the SJC held that a pension forfeiture was warranted when the superintendent of the Shrewsbury water and sewer department was convicted of larceny by common scheme for stealing the Town’s money and property. Id. The SJC acknowledged that the legislature did not intend that a pension forfeiture should follow any and all criminal convictions. Id. at 5. Rather, “the substantive touchstone intended by the General Court is criminal activity connected with the office or position. . . . Looking to the facts of each case for a direct link between the criminal offense and the member’s office or position best effectuates the legislative intent of § 15 (4).” Id. In Gaffney, the direct factual link between his employment and his criminal conviction was clear, and thus pension forfeiture was warranted.
Criminal Activity Not Limited to On-Duty Conduct
In Maher v. Justices of the Quincy Division of the District Court Department, 67 Mass. App. Ct. 612 (2006), the Appeals Court determined that a public employee’s off-duty criminal conduct can result in pension forfeiture even if the criminal conviction did not involve a violation of a statute that specifically pertains to public employees or, unlike Gaffney, did not involve misappropriating the employer’s funds or property. In Maher, the plaintiff was the chief plumbing and gas inspector for the City of Quincy. Id. at 613. He and another city employee broke into and entered the personnel office at city hall. There, the plaintiff reviewed his personnel file and stole a document or documents from the file. A few weeks later, a new mayor took office. The plaintiff took superannuation retirement and subsequently pleaded guilty breaking and entering in the daytime with intent to commit a felony, wanton destruction of property, and stealing personnel records and various documents. Id. His pension was forfeited, and the Appeals Court upheld the pension forfeiture, specifically referencing Gaffney and stating that the statutory requirement that the criminal activity be connected with the office or position “does not mean that the crime itself must reference public employment or the employee’s particular position or responsibilities.” Id. at 616.
The Durkin and Finneran Decisions
Similarly in Durkin v. Boston Retirement Board, 83 Mass. App. Ct. 116 (2013), a law enforcement officer’s off-duty conduct resulted in forfeiture of his pension. Paul Durkin was a Boston Police Officer who became inebriated off-duty and used his service revolver to shoot a fellow off-duty police officer who was giving him a ride home. Id. at 117. Durkin pleaded guilty to assault and battery by means of a dangerous weapon, and the Boston Retirement Board forfeited his rights to a pension. Id. The Appeals Court upheld the retirement board’s decision, noting that “Durkin engaged in the very type of criminal behavior he was required by law to prevent. This violation was directly related to his position as a police officer as it demonstrated a violation of the public’s trust as well as a repudiation of his official duties. Clearly, at the heart of a police officer’s role is the unwavering obligation to protect life, which Durkin himself recognized at his hearing. His extreme actions violated the integrity of the system which he was sworn to uphold.” Id. at 119.
In State Board of Retirement v. Finneran, 476 Mass. 714 (2017), the SJC discussed the pension forfeiture statute’s twenty-year evolution into two recognized types of “direct links” between a public employee’s position and the crime committed: factual links and legal links. In cases involving factual links, a public employee’s pension is subject to forfeiture under Section 15 (4) only when there is a direct factual connection between the public employee’s crime and position. Id. at 720-21. Surprisingly, the court cited the Durkin case as an example of a direct factual link, noting that that crime had been committed with the police officer’s service revolver. Id. at 721. In cases involving direct legal links, forfeiture is mandated under Section 15 (4) when a public employee commits a crime directly implicating a statute that applies to the employee’s position. Id.
Swallow and O’Hare in the Appeals Court
The Durkin and Finneran decisions implied that the plaintiff in Durkin may have kept his pension had he merely committed the offense with his personal weapon. In Swallow, a police officer who was on administrative leave was with his wife at their home. Swallow/O’Hare, 481 Mass. at 243. Swallow was drinking heavily and, after an argument, he grabbed his wife by the shirt, yelled at her, and waved his personal handgun in her face. Id. As she left the home and walked to a neighbor’s driveway, she heard a single gunshot. Id. Swallow was subsequently arrested and ultimately pleaded guilty to assault and battery, discharge of a firearm within 500 feet of a building, assault by means of a dangerous weapon, multiple counts of improper storage of a firearm, and intimidation of a witness. Id. The retirement board forfeited Swallow’s pension, largely relying on Durkin. Id. Although the District and Superior Courts reversed the retirement board’s decision, the Appeals Court reinstated it, noting that Swallow’s “use of a gun to threaten another’s life violated the public’s trust and repudiated his official duties.” Id. at 244. See Essex Reg’l Ret. Bd. v. Justices of the Salem Div. of the Dist. Ct. Dep’t, 91 Mass. App. Ct. 755, 760 (2017).
Finally, in O’Hare, a state trooper communicated online with, and eventually arranged to meet with, an individual whom he believed to be a fourteen-year-old boy but was actually an undercover agent with the Federal Bureau of Investigation (FBI). Swallow/O’Hare, 481 Mass. at 244. The FBI arrested O’Hare and he pleaded guilty to a charge of using the Internet to attempt to coerce and entice a child under the age of eighteen years to engage in unlawful sexual activity. Id. The retirement board forfeited O’Hare’s pension rights, finding that his conviction went “directly to the heart” of his responsibilities and obligations as a state police trooper. Id. The District and Superior Courts reversed the retirement board’s decision. Id. at 244-45. Like the posture of Swallow, the Appeals Court reversed, holding that forfeiture was required because O’Hare’s conduct violated the fundamental tenets of his role as a state police trooper, because protecting the vulnerable, including children, is at the heart of a police officer’s role, and this repudiation of his official duties violated the public’s trust and the integrity of the Massachusetts State Police. Id. at 245. See State Bd. of Ret. v. O’Hare, 92 Mass. App. Ct. 555, 559 (2017).
SJC Changes Course
As perhaps prophetically foretold in the reference to Durkin in the Finneran case, the SJC reversed both Swallow and O’Hare along similar lines. With respect to Swallow, the SJC held the retirement board should not have relied on Durkin for the proposition that forfeiture is mandatory after “a police officer violates the public trust and shirks his or her official duties.” Although Durkin discussed the fundamental nature of the police officer’s position and noted that the officer had violated the public trust by “engag[ing] in the very type of criminal behavior he was required by law to prevent,” forfeiture was ultimately grounded on the factual connections between the officer’s position and the criminal activity. Swallow/O’Hare, 481 Mass. at 251. In O’Hare, the SJC rejected the retirement board’s argument that there is an exception to the proposition that pension forfeiture should not follow “as a consequence of any and all criminal convictions” for law enforcement officials because of their “special position” in our society. In rejecting this position, the SJC stated emphatically, “[t]his is precisely the kind of unfettered breadth that we have consistently avoided.” Id. Accordingly, in both cases the SJC acknowledged the repugnant nature of the criminal offenses, but nevertheless reinstated the pensions. Id. at 254. In O’Hare, the SJC also summarily rejected the argument that there was a “legal link” between the criminal conduct and a violation of the “laws” applicable to State police. Id. at 252-53. The retirement board, relying on State Board of Retirement v. Bulger, 446 Mass. 169 (2006), in which the SJC found that perjury and obstruction of justice convictions violated the Code of Professional Responsibility for Clerks of the Courts and thus were a violation of the laws applicable to the office or position, had posited that the “laws” applicable to State police include the rules and regulations issued by the colonel of the State police pursuant to G. L. c. 22C §§ 3 and 10. O’Hare at 252. It argued that they function as a “code of conduct” and require that State troopers “avoid conduct that brings the State police into disrepute and obey all laws of the United States and the local jurisdiction.” Id. at 252. Unpersuaded, the SJC found that if the legislature wanted to include rules and regulations that do not have the force of law, it would have said so, as it had in the preceding section of the statute. Id. at 252-53. The SJC distinguished the circumstances in Swallow and O’Hare from the holding in Bulger, where a clerk-magistrate committed perjury in violation of the Code of Professional Responsibility for Clerks of Court — because the Code has “the force of law.” Id. at 253.
Many were surprised by the SJC’s refusal to hold police officers to the higher standard under pension forfeiture laws that had previously been applied to discharge for off-duty conduct, such as in Police Commissioner of Boston v. Civil Service Commission, 39 Mass. App. Ct. 594, 601 (1996) (officer lost his firearm while intoxicated and verbally abused other officers); McIsaac v. Civil Serv. Comm’n, 38 Mass. App. Ct. 473, 475-76 (1995) (officer negligently handled firearm while intoxicated and verbally abused other officers); Comm’rs of Civil Serv. v. Mun. Ct. of the Brighton Dist., 369 Mass. 166, 170-71 (1975), and Patuto v. Comm’rs of Civ. Ser., 429 U.S. 845 (1976) (upholding discharge of off-duty police officer who accompanied others while they uttered forged money orders). Perhaps less surprising is the SJC’s rejection of the argument that pension forfeiture can be triggered under Section 15 (4) by a violation of a rule or regulation or code of conduct which does not have the force of law. Implicit in its ruling, however, is that had the statute so provided, pension forfeiture would have surely resulted in O’Hare.
Unless the legislature further amends Section 15 (4), police officers will be treated no differently than other public employees in assessing pension forfeiture for criminal activity. Interestingly, legislation has been filed to further restrict the scope of Section 15 (4). If enacted, it would limit a complete pension forfeiture to cases in which the prosecutor included such a penalty in the sentencing recommendation, and in the absence of such a recommendation, the local retirement board could implement a partial forfeiture based on its discretion and the facts and circumstances of the particular criminal conviction. In my view, the Legislature should follow the Court’s lead in extending the pension forfeiture’s statute’s reach to off-duty law enforcement officers’ conduct as it has in upholding employment termination proceedings. As the Appeals Court noted in Police Commissioner of Boston v. Civil Service Commission, 22 Mass. App. Ct. 364, 371 (1986): “Police officers must comport themselves in accordance with the laws that they are sworn to enforce and behave in a manner that brings honor and respect for rather than public distrust of law enforcement personnel. They are required to do more than refrain from indictable conduct. Police officers are not drafted into public service; rather, they compete for their positions. In accepting employment by the public, they implicitly agree that they will not engage in conduct which calls into question their ability and fitness to perform their official responsibilities.” See also Falmouth v. Civ. Serv. Comm’n, 61 Mass. App. Ct. 796, 801-802 (2004) (“[p]olice officers must … behave in a manner that brings honor and respect for rather than public distrust of law enforcement personnel. This applies to off-duty as well as on-duty officers.”) While I recognize the financial impact a pension forfeiture will often have on the pensioner’s family, that should be a consideration before the law enforcement officer commits a crime that puts their family at perilous financial risk.
Attorney Sacco founded the Law Offices of Michael Sacco, P.C. on March 20, 2006, having practiced in various Boston law firms in the preceding 12 years. Since entering private practice in 1994, Attorney Sacco’s practice has focused exclusively in the representation of public pension systems in Massachusetts.
by Arlan Fuller
In Pesce v. Coppinger, Civ. A. No. 18-cv-11972-DJC (D. Mass. Nov. 26, 2018), the United States District Court for the District of Massachusetts ordered that, under the Americans with Disabilities Act (“ADA”) and the Eighth Amendment, a Massachusetts jail was required to provide an inmate, Geoffrey Pesce, prescribed methadone treatment during his incarceration. This decision will have a significant impact on the provision of medical treatment for opioid use disorder in prisons. While other jurisdictions have provided methadone treatment to incarcerated populations, Massachusetts generally has not. Further, the case is the first time a federal judge in Massachusetts has ordered that treatment must be provided.
I. The Question of Opioid Treatment in Prison
In the midst of the nation’s opioid epidemic, there is a debate as to whether to allow medical treatment for opioid use disorder in jails and prisons. Medical treatment is usually methadone, buprenorphine or another prescribed drug that reacts with the same receptors in the brain as drugs like heroin or oxycodone but does not produce a “high” if taken as directed. Studies show that about half of prisoners entering the jail system meet the criteria of substance use disorder and of that group, nearly half have a diagnosed opioid use disorder. Most jails and prisons, however, prohibit even prescribed use of methadone and buprenorphine on the grounds that the drugs present safety and security concerns.
Without treatment, however, relapses may occur, often resulting in disability or premature death. In the case of opioid use disorder, a very present danger exists in the immediate post-release period when treatment has been interrupted during incarceration. A 2007 New England Journal of Medicine study found incarcerated patients to be 129 times more likely than the general population to die of an overdose in their first two weeks following their release. But, even though the data identifies a need to consider methadone or buprenorphine treatment in prison, institutions, particularly in Massachusetts, have been slow to adopt policies allowing for such treatment. Although the Commonwealth has recently announced pilot programs for medical treatment in both jails and prisons, based on legislation passed last year, those programs have yet to begin.
II. The Pesce Decision
Given the significant numbers of prisoners with opioid use disorders, it is no surprise that courts would eventually be faced with questions regarding the availability of treatments. In July 2018, Pesce was charged with driving with a revoked or suspended license in violation of the terms of his probation. Pesce had struggled with opioid use disorder for several years. He was in active recovery since 2016 and receiving methadone treatment. It was agreed that any sentence resulting from the charges would be served in the Essex County House of Corrections. However, that facility did not provide methadone treatment to inmates. To obtain medically necessary treatment, and avoid the risk of overdose and death upon his release, Pesce requested that he be allowed to continue methadone treatment while in jail. When Pesce did not receive a response, he sought an injunction ordering that his treatment continue while he was incarcerated.
Pesce argued that the jail’s policy of denying access to methadone treatment violated his rights under the ADA. The ADA states that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” Pesce asserted that the refusal to administer methadone deprived him of the benefit of health care programs, and that such conduct constituted discrimination on the basis of his disability.
Pesce also argued that the jail’s policy against methadone treatment constituted cruel and unusual punishment in violation of the Eighth Amendment. The jail’s policy did not permit the treatment, regardless of his doctor’s and other medical professionals’ opinions regarding the treatment of patients who, like Pesce, struggle with recovery without methadone treatment.
Pesce demonstrated that he would suffer irreparable harm. Before starting methadone, Pesce had overdosed three times in less than 24 hours. His doctor described him as at “high risk of overdose and death upon his release” without continued methadone treatment. Statistics provided to the court also showed the dangers in not treating incarcerated individuals with opioid use disorder, including the 2007 New England Journal of Medicine study that found that nearly 50 percent of all deaths among those released from jail or prison were opioid related, with most occurring within a month of release.
The court determined that the medical needs of Pesce outweighed any harms and security concerns of the jail. The court recognized that the prison has a legitimate concern for the safety and security of its inmates. However, in Pesce’s case, methadone would be administered in the presence of prison officials and, because it is in a liquid form, would be extremely difficult to smuggle into the prison. Therefore, the court deemed the medical benefits to Pesce were greater than the risk posed to the prison. Lastly, the Court held that the public interest would be better served by ensuring that Pesce received proper medical care while in prison.
III. The Impact of the Decision
This decision will have significant and far-reaching impact. It is the first time a federal judge in Massachusetts has ruled in favor of providing methadone access in prison. Prisons in Massachusetts will need to provide access to methadone and buprenorphine treatment or likely face similar legal actions. Adding to the debate, the U.S. Court of Appeals for the First Circuit recently affirmed a preliminary injunction ordering a jail in Maine to provide buprenorphine to treat an opioid use disorder. Smith v. Aroostook Cnty., 922 F.3d 41 (1st Cir. 2019). In Smith, as in Pesce, the court found the plaintiff would likely prevail on a claim that withholding treatment violates the ADA and Eighth Amendment. With these decisions, Massachusetts will now face even more pressure to successfully implement the upcoming pilot programs providing opioid maintenance therapy. Similar programs have been successful, such as in New York City, which in 2018 treated 900 prisoners daily with methadone and nearly 4,000 prisoners over the entire year. In fact, 74% of all prisoners with an opioid use disorder were maintained on methadone or buprenorphine during their incarceration.
More broadly, Massachusetts (and elsewhere) will need to determine whether treatment for opioid use disorder for those incarcerated should be considered a discretionary therapy that can be denied, resulting in forced withdrawal and inevitable relapse upon release, or a vital and necessary health service that is protected under by law. In the last issue of the Boston Bar Journal, former Massachusetts Attorney General Martha Coakley and Rachel Hutchinson stated that “as the opioid epidemic grows, the way we view addiction is changing.” The Federal Court’s decision confirms this trend, showing that the corrections system offers an opportunity to engage individuals who might not have strong connections to the health system. Indeed, instead of posing a threat to those struggling with substance use disorder, the corrections system could prove to be a critical point of intervention to address an individual’s health needs. Pesce may be the first case to address medical treatment of opioid use disorders in Massachusetts, but it is unlikely to be the last.
Arlan Fuller, MA, JD, is the executive director of the François-Xavier Bagnoud (FXB) Center for Health and Human Rights at Harvard University and a research associate at the Harvard School of Public Health. His central areas of focus are in human rights law, international development, and US government and legislative strategy. Mr. Fuller received his BA in economics from the College of the Holy Cross. He holds a master’s degree in peace and conflict studies from the University of Ulster, Northern Ireland, and a JD from Boston College Law School.
by Elizabeth Sillin and Colin Korzec
On January 8, 2019, the Massachusetts Supreme Judicial Court issued Ciani v. MacGrath, 481 Mass. 174 (2019), which clarified certain provisions of the Massachusetts spousal elective share statute, G.L. c. 191, § 15. Specifically, Ciani held that the surviving spouse’s elective share of the deceased spouse’s real estate is a life estate in possession, not simply an income interest for life. A right to partition (and sell) the real property is now borne – a right that may severely disrupt the estate plan of the testator. Additionally, the SJC again urged the Legislature to update the elective share statute due principally to the fact that the statute is “woefully inadequate to satisfy modern notions of a decedent spouse’s obligation to support the surviving spouse or modern notions of marital property,” Bongaards v. Millen, 440 Mass. 10, 21 (2003).
Raymond Ciani died testate in 2015 survived by his wife, Susan, and his four adult children from a prior marriage. Raymond did not make any provisions in his will for Susan. Susan timely filed for her elective share of Raymond’s estate in accordance with G.L. c. 191, § 15.
Raymond died with personal property valued at just under $40,000 and with multiple parcels of real estate valued at just under $638,000. Susan brought partition actions seeking to force the sale of real estate in order to monetize her interest therein. Raymond’s children claimed she did not have a right to force the sale, and that she had the right only to receive income produced by the real estate.
The Massachusetts elective share provisions are found in G.L. c. 191, §§ 15 and 16 (the Elective Share statute). The Elective Share statute was enacted to prevent spousal disinheritance, either by inadvertence or design. It provides a mechanism by which a surviving spouse can waive the provisions of a deceased spouse’s will and take instead a statutorily prescribed share of the decedent’s estate.
The Elective Share statute provides a formulaic approach to determining the amount of the surviving spouse’s claim. The formula depends on whether the deceased had issue and/or kindred, as well as on the dollar amount of the deceased’s estate. The Elective Share statue provides, in part:
[I]f the deceased left issue, [the surviving spouse] shall thereupon take one third of the personal and one third of the real property . . . ; except that . . . . if [the surviving spouse] would thus take real and personal property to an amount exceeding twenty-five thousand dollars in value, he or she shall receive, in addition to that amount, only the income during his or her life of the excess of his or her share of such estate above that amount, the personal property to be held in trust and the real property vested in him or her for life, from the death of the deceased. G.L. c. 191, § 15.
The dispute in this case centered on the nature of a Susan’s interest in a Raymont’s real property where the income-only limitation applies, i.e., where Susan’s share of Raymond’s personal and real property, taken together, exceeds $25,000 in value. Susan contended that she held a life estate in an undivided one-third of each parcel of real property and that Raymond’s children were tenants in common subject to her life estate. Raymond’s children contended that Susan’s interest in real estate is limited to an income interest for life, not a life estate. The issue was one of first impression. The judge in the Superior Court reported the ruling to the Appeals Court and the SJC granted direct appellate review.
The Ciani Decision
The SJC construed the Elective Share statute by first looking at its plain language and then whether the legislative history supported the Court’s interpretation. The SJC declared:
[W]e read the statute this way: the first clause (“only the income during his or her life”) limits the surviving spouse to an interest in the “income only,” and the second clause (“the personal property to be held in trust and the real property vested in him or her for life”) describes how that limitation is to be achieved for each type of property — the personal property is to be held in trust and the real property is to be vested in the surviving spouse for life.
Ciani, 481 Mass. at 180-81.
Next, the SJC considered the legislative history of the elective share concept to test its statutory interpretation. Id. at 183-85. The first iteration of the Elective Share statute simply provided for a widow’s right to waive the provisions made for her in her husband’s will and afforded her a life estate in a prescribed portion of her husband’s real property. In 1833, the statute was revised to afford the widow a limited claim to a deceased husband’s personal property. The statute was reworked in 1854 to allow the spouse to take instead an intestate share of his estate, along with a $10,000 limitation on the personal property. Around 1861, the concept of the income-only interest in the personal property was introduced. Subsequent revisions around 1900 brought the statute to what it largely looks like today, including the expansion of the statute to include surviving husbands. An additional revision in 1964 adjusted the $10,000 figure to the current $25,000. Id.
The SJC found that the history of the statute demonstrated that the Legislature consistently and intentionally treated personal and real property differently from the outset. Id. The income-only limitation initially applied only to the decedent’s personal property. It was not until 1900 that the real property limitation was enacted. And even then, the SJC held, the real property limitation was characterized as “vested” and not as an “income only” limitation. Id. at 186. The fact that the Legislature did not enact an analogous provision for the management of the real property, but instead instructed that the excess of the surviving spouse’s share thereof would be “vested,” supported the Court’s conclusion that the Legislature intended for the surviving spouse to take an ownership interest in the excess. Id. The fact that the Legislature simultaneously anticipated that the surviving spouse’s share would be “set off” for the duration of his or her life also supported the conclusion that the Legislature intended to convey a life estate. Id.
Ultimately, the SJC found that (i) Susan holds an estate in possession, for life, in her share of the real property, and (ii) Raymond’s children hold an estate in possession, absolutely, in the remaining property, as well as an estate in remainder in Susan’s share. As a result, the parties are tenants in common as to their estates in possession and each has a right to a partition. Instead of simply having the right to live in the house, Susan has the right to force a sale of the property and realize a monetary sum upon the sale. Indeed, Raymond;s children also now have the right to partition as well – possibly forcing Susan out of the house in which she wishes to continue to live. This right has the potential to disrupt a well-intended estate plan by allowing the forced sale of the family residence over the objections of certain members of the family.
Postmortem – My Kingdom for a Postnuptial
The Court noted parenthetically that the Elective Share statute, which has been around in some form since 1783, is “unwieldy and perplexing to apply” and “decidedly gendered” and “in desperate need of an update” by the Legislature to conform with modern notions of spousal support obligations and marital property. Ciani, 481 Mass. at 187 n.12. Indeed, as the Court noted, a similar appeal to the Legislature was made in 1984 in Sullivan v. Burkin, 390 Mass. 864 (1984), some 35 years ago. Id. Several attempts have been made over the years by various bar association committees to address the spousal elective share. To date, no consensus has emerged in Massachusetts about modernizing the elective share law. Until such time as it does, estate planners must continue to take advise clients as to the pitfalls of the current law and to give further consideration to prenuptials or postnuptials as part of the estate planning process.
Elizabeth Sillin, Esq. is a partner at Bulkley, Richardson and Gelinas and is a member of the Massachusetts Ad Hoc Elective Share Study Committee. Colin Korzec is a National Estate Settlement Executive at U.S. Trust, Bank of America Private Wealth Management and was also a member of the Massachusetts Ad Hoc Elective Share Study Committee.