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.
by David Lyons
In a unanimous decision last September, the Supreme Judicial Court (“SJC”) upheld the Commonwealth’s latest climate change regulations to reduce greenhouse gas emissions from electric generators, rejecting those generators’ arguments that the regulations violate the Massachusetts Global Warming Solutions Act (the “GWSA”). New England Power Generators Ass’n, Inc. v. Dep’t of Envtl. Prot. (“NEPGA”), 480 Mass. 398 (2018). With the Legislature and the Governor continuing to focus on this issue, the SJC likely will be called upon again to decide other climate change cases.
A Legacy of Policy Innovation
Massachusetts is one of a handful of states that have pressed the envelope in adopting climate change policy, from spearheading Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007) (compelling EPA to begin the process to regulate carbon dioxide as a pollutant under the federal Clean Air Act) to coordinating the formation of the country’s first multistate emissions trading market, the Regional Greenhouse Gas Initiative (“RGGI”). As the SJC noted, ever since the Legislature adopted the GWSA in 2008, Massachusetts has been “a national, and even international, leader in the efforts to reduce . . . climate change.” NEPGA, 480 Mass. at 399. Among other provisions, the GWSA mandated a reduction in greenhouse gas emissions by 80% below the 1990 level by 2050. M.G.L. c. 21N, § 3(b).
Industry has strenuously opposed these policies, especially the electric generators who have shouldered the most immediate compliance burdens. Regulating greenhouse gases at the state level both raises the costs for power plants and their customers, they argue, and fails to ameliorate the environmental problem, as emissions simply shift to neighboring, unregulated jurisdictions.
Kain v. Department of Environmental Protection, 474 Mass. 278 (2016), previously discussed in these pages, spurred more DEP action, including the regulations at issue in NEPGA. Kain addressed M.G.L. c. 21N, § 3(d), which requires DEP to develop aggregate limits for different sources of emitters. The SJC decided in Kain that the agency’s implementation of the RGGI program was insufficient to comply with the statutory mandate. Among other things, the Court ordered DEP to promulgate “regulations that address multiple sources or categories of sources of greenhouse gas emissions, impose a limit on emissions . . ., limit the aggregate emissions released from each group of regulated sources . . ., [and] set [declining] emission limits for each year. . . .” Id. at 300.
Kain thus laid the foundation for a series of climate-change policies. Shortly thereafter, Governor Baker issued Executive Order 569, initiating a rulemaking process that culminated in the two key regulations contested in NEPGA. The “Cap Regulation” was the focus of the plaintiffs’ challenge and imposes annual, declining limits for greenhouse gas emissions on in-state electric generators. 310 Code Mass. Regs. § 7.74. The Clean Energy Standard, 310 Code Mass. Regs. § 7.75, requires utilities to procure more of their power from non-emitting sources. Id.
The plaintiffs filed suit challenging the rulemaking on September 11, 2017. Befitting the policy stakes, a single justice of the SJC reserved and reported the case to the full Court before any substantive motions or briefing at the Superior Court. See M.G.L. c. 211, § 4A (empowering the SJC to transfer cases from the lower courts).
The SJC Upholds Sector-by-Sector Emissions Limits
The electric generators mounted a three-pronged attack on the regulations. First, they alleged that DEP and the Department of Energy Resources lacked the authority to issue the Cap Regulation. They argued that the GWSA provision directly regulating electric generators, G.L. c. 21N, § 3(c), forecloses other regulations under § 3(d), which generally authorizes sector-by-sector emission limits. 480 Mass. at 399. Second, they argued that the Cap Regulation will increase greenhouse gas emissions. Id. Finally, they claimed that a sunset clause in the statute barred § 3(d) regulations from being effective beyond 2020. Id.at 399-400. The SJC was unpersuaded.
First, the Court concluded that §§ 3(c) and 3(d) complement, rather than conflict with, each other. The electric sector is just one of several categories of emission sources within the scope of § 3(d). Id. at 404. The Court relied on conventional tools of statutory interpretation and an assessment of the Legislature’s overall policy objectives, noting that although § 3(c) aims specifically at electric generators, nothing in either § 3(c) or § 3(d) precludes electric sector regulations under § 3(d). Id. at 406-07. The SJC also rejected the plaintiffs’ argument that DEP’s interpretation was unreasonable. Because electric generators account for roughly 20% of the state’s greenhouse gas emissions, the SJC reasoned that it would be anomalous to exclude electric generators from the declining sector-by-sector limits under § 3(d). Id. at 405.
Second, the SJC rejected the plaintiffs’ argument that the Cap Regulation is arbitrary and capricious, holding that the generators had not met their burden to show that the regulation lacked “any conceivable grounds upon which [it could] be upheld.” Id. at 410. The plaintiffs argued that if high-carbon, in-state electricity is replaced by high-carbon, out-of-state electricity, consumers will face higher costs with no environmental gains. The SJC characterized that concern as speculative and found “multiple conceivable bases to support the rule” in the administrative record. Id. at 408. Applied together, the SJC concluded that the Cap Regulation and the Clean Energy Standard will encourage the development of clean generation sources in Massachusetts and neighboring states. Id. at 409-10.
Last, the SJC disagreed with the plaintiffs’ interpretation of a provision in the GWSA stating that § 3(d) regulations “shall expire on December 31, 2020.” Rather than invalidating any emission limits effective beyond this date, the SJC concluded that the timing provision only requires DEP to issue new regulations by December 31, 2020, and likened the date to an “implementation deadline, not [a] termination” date. Id. at 411.
Although the state has made significant strides to reduce emissions—cutting them by more than 20% between 1990 and 2016—the formidable economic and technical obstacles that stand in the way of the GWSA-mandated 80% reduction by 2050 mean that NEPGA will not be the last climate change case to reach the courts.
Indeed, with the wave of policymaking launched by the GWSA and reinvigorated by Kain continuing to build, climate change may reach the SJC again sooner rather than later. On August 9, 2018, Governor Baker signed An Act to Advance Clean Energy, 2018 Mass. Acts c. 227. Though less aggressive than a Senate version promoted by environmental advocates, the Act made several important changes, including raising the targets for the state’s Renewable Portfolio Standard (which requires utilities to procure energy from renewable sources). The Act also directs the Department of Energy Resources to implement a Clean Peak Standard to promote clean energy sources to meet peak-period demands, which historically have been met by burning dirtier fuel sources. Governor Baker also signed An Act Promoting Climate Change Adaptation, Environmental and Natural Resource Protection and Investment in Recreational Assets and Opportunity, 2018 Mass. Acts c. 209, which authorizes $2.4 billion in bonds for environmental projects and codifies initiatives begun by E.O. 569, including the statewide Hazard Mitigation and Climate Adaption Plan. Most recently, the state expanded its regional leadership role, joining with nine other states and the District of Columbia to launch a regional strategy, analogous to RGGI, to reduce emissions from transportation. With the reach of climate change regulations expanding rapidly, the SJC surely will address climate change again soon.
David Lyons is an associate at Anderson & Kreiger LLP. He advises public- and private-sector clients in permitting and litigation matters, with a focus on environmental, energy, and municipal law.
by Emily E. Renshaw and Jason D. Frank
In Merrimack College v. KPMG LLP, 480 Mass. 614 (2018), the Supreme Judicial Court limited the equitable doctrine of in pari delicto, which bars a plaintiff who has participated in wrongdoing from recovering damages for related losses. Vacating an order granting summary judgment for the auditor defendant, KPMG, the SJC held for the first time that, under the in pari delicto doctrine, only the conduct of “senior management,” those who are “primarily responsible for managing” a plaintiff entity, may be imputed to that entity. Merrimack could have broad implications for professional services providers and will likely lead to the further development of in pari delicto jurisprudence in Massachusetts.
The In Pari Delicto Doctrine
In pari delicto, Latin for “in equal fault,” is an equitable doctrine that courts historically have used to assign blame. In Massachusetts, the doctrine has generally operated to bar a plaintiff who engaged in intentional wrongdoing from recovering from a defendant who was an accomplice or co-conspirator. (Where a plaintiff and defendant are merely negligent, the Massachusetts comparative negligence statute, M.G.L. c. 231, § 85, applies.) The practical import of the in pari delicto doctrine is that the law “‘will not recognize a right of action’ based on inequitable conduct.” Merrimack Coll. v. KPMG LLP, 34 Mass. L. Rptr. 220, at 2 (Mass. Super. Ct. May 15, 2017).
Facts and Procedural History
Merrimack College incurred more than $6 million in losses as a result of a fraudulent scheme by its former Financial Aid Director, Christine Mordach. Unbeknownst to students who had received grants and scholarships, Mordach replaced some grants and scholarships with federal Perkins loans, which she approved without the students’ knowledge or consent. As a result, Mordach was able to make her budget appear more balanced (reducing projected scholarship expense and ultimately increasing tuition revenue). The unsuspecting students were saddled with debt they did not need (they were supposed to receive grants or scholarships) and had neither requested nor agreed to repay. Mordach pleaded guilty to federal charges, was sentenced to prison, and ordered to pay approximately $1.5 million in restitution.
Merrimack sought to recover its losses from its independent auditor, KPMG, bringing suit for breach of contract, negligence, negligent misrepresentation, professional malpractice, and violation of M.G.L. c. 93A, and contending that KPMG failed to detect Mordach’s fraud. KPMG moved for summary judgment, arguing, in part, that Merrimack’s claims were barred by the in pari delicto doctrine. Merrimack contended that it should not be held liable for the misdeeds of a low-level employee.
The Trial Court Decision: In Pari Delicto Bars Recovery
The trial court granted summary judgment in favor of KPMG. Relying on traditional principles of agency law, the court concluded that Mordach’s conduct was properly imputed to Merrimack. It deemed her to be a “relatively high-level staffer,” noting that, as Financial Aid Director, Mordach had overseen the award and distribution of almost $150 million in financial aid and had signed numerous annual management representation letters to KPMG. Merrimack Coll. v. KPMG LLP, 34 Mass. L. Rptr. 220, at 5. Furthermore, the court explained that in Massachusetts there is no “low-level employee” exception to the law holding employers vicariously liable for employee conduct. Id. at 4.
The trial court also concluded that Mordach’s fraud was “far more serious” than KPMG’s alleged negligence in failing to uncover it, thus further barring Merrimack’s recovery under the in pari delicto doctrine. Id. at 7.
Following the majority of courts, the court declined to recognize a blanket “auditor exception” to the doctrine, noting that such an exception would be inconsistent with Massachusetts law (which in the analogous context of legal malpractice, bars clients who engage in wrongdoing from suing their attorneys for joining in the wrongdoing. See Choquette v. Isacoff, 65 Mass. App. Ct. 1, 7-8 (2005)). Merrimack appealed from the grant of summary judgment, and the SJC accepted direct appellate review.
The SJC Decision
The SJC vacated the grant of summary judgment. Observing that he was writing on “essentially a clean slate of Massachusetts law,” Chief Justice Gants based his ruling on the purposes of the in pari delicto doctrine and principles of imputation. 480 Mass. at 626. In pari delicto, the court explained, is an equitable doctrine “focused squarely on the moral blame of the parties.” Id. at 621-22. The rules of imputation, on the other hand, are designed to allocate fairly risks between principals and innocent third parties. Id. at 621. Traditional rules of imputation under Massachusetts common law, the court noted, “are not without their limits,” and are inapplicable where the aim is to assign blame rather than allocate risk. Id. at 626-27. For example, when determining whether punitive damages—which require “a moral judgment” of the defendant’s conduct—are warranted against an employer for an employee’s misconduct, the court departs from traditional imputation rules. Id. at 627-28. In that circumstance, the court explained, the key factor is whether “members of senior management” are morally blameworthy by participating or acquiescing in the misconduct; “[t]he misconduct of lower-level employees—even those at the supervisory level—is insufficient to warrant punitive damages.” Id. at 628.
For similar reasons, the SJC held that under Massachusetts common law, a corporate entity’s “moral responsibility” can be measured only by the conduct of “senior management—that is, the officers primarily responsible for managing the corporation, the directors, and the controlling shareholders, if any.” Id. In Merrimack, the court ruled for the first time that, under the doctrine of in pari delicto, only the intentional misconduct of “senior management” may be imputed to the plaintiff and, “only then, will a court need to consider whether application of the doctrine would comport with public policy.” Id.
On this matter of first impression, while leaving open to interpretation the term “senior management,” the SJC observed that Mordach was not a member of senior management whose conduct could be imputed to Merrimack under the doctrine of in pari delicto. Although Mordach had substantial responsibilities as Financial Aid Director, she was “not among the select few who were primarily responsible for the management of the college[.]” Id. at 629.
The SJC declined to carve out as a matter of public policy an auditor exception to the in pari delicto doctrine, which the Court opined was unnecessary to its decision. The Court further raised a question about the intersection between the in pari delicto doctrine and another statute, M.G.L. c. 112, § 87A3/4, which provides for the apportionment of losses in cases involving an accounting firm in which a claim or defense of fraud is raised against the plaintiff or another party. The Court declined, however, to interpret the statute, noting that on remand the trial court may do so and consider its proper application. Id. at 632.
The Court made clear that its decision was narrowly confined to the question of imputation in the application of the in pari delicto defense. Thus, there seems to be no change in Massachusetts law with respect to the imputation of conduct by non-senior management for purposes of Massachusetts’s other comparative fault statutes or common law.
Merrimack could have broad implications for professional services providers, and the issues identified in the decision likely will lead to the further development of in pari delicto jurisprudence in Massachusetts. Notably, the SJC did not provide analytical tools to determine precisely what constitutes “senior management” for purposes of the in pari delicto doctrine. For example, applying Merrimack, will courts impute to a plaintiff corporation the conduct of a corporate controller who manages a 100-person finance department, and engages in a multi-million-dollar accounting fraud scheme? Merrimack may also result in strategic behavior by buyers and providers of professional services, as they seek to allocate and minimize risk, and such behavior may increase costs of service providers in Massachusetts. Following Merrimack, it is even more critical than ever for service providers to carefully define the scope of their corporate engagements, particularly in the context of audits and investigations.
Emily E. Renshaw is a partner at Morgan, Lewis & Bockius LLP in Boston. Emily focuses her practice on securities litigation and complex business matters. She represents a diverse client base in an array of matters including shareholder and consumer class actions, derivative actions, governmental, regulatory, and internal investigations, and all forms of contractual disputes and business torts. She represents clients before state and federal courts at the trial and appellate levels and in regulatory proceedings before federal and state securities agencies.
Jason D. Frank is a partner at Morgan, Lewis & Bockius LLP in Boston. For the last two decades, Jason has represented clients in shareholder class actions, derivative suits, SEC proceedings, internal investigations, and a broad array of complex business litigation, including auditor malpractice. He has litigated in trial and appellate courts throughout the United States, appearing before courts in virtually every federal circuit.