by Caiti A. Zeytoonian
In McLean Hospital Corporation v. Town of Lincoln, 483 Mass. 215 (2019), the Supreme Judicial Court (SJC) held that emotional and social skills-based education falls within the scope of a Massachusetts statute that exempts educational land uses from local zoning laws. The case reaffirms that the protection afforded to educational uses under that statute—G.L. c. 40A, § 3, commonly known as the “Dover Amendment”—extends beyond traditional forms of education and includes uses that provide therapeutic or rehabilitative support in addition to a primary educational purpose.
The Dover Amendment provides, in relevant part:
No zoning ordinance or by-law shall . . . prohibit, regulate or restrict the use of land or structures for . . . educational purposes on land owned or leased . . . by a nonprofit educational corporation; provided, however, that such land or structures may be subject to reasonable regulations concerning the bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements. (emphasis added).
The law, enacted in 1950 in response to local zoning bylaws that prohibited religious schools within residential neighborhoods, was intended to provide special zoning status for religious and educational uses. Since the Dover Amendment’s inception, the SJC has interpreted the scope of “educational purposes” broadly. See, e.g., Fitchburg Hous. Auth. v. Board of Zoning Appeals of Fitchburg, 380 Mass. 869 (1980) (facility where formerly institutionalized adults resided while “being trained in skills for independent living, such as self-care, cooking, job seeking, budgeting, and making use of community resources” qualified as educational use); Gardner-Athol Area Mental Health Ass’n v. Zoning Board of Appeals of Gardner, 401 Mass. 12 (1987) (residential facility where adults with mental disabilities would be taught “daily living, as well as vocational skills, with the goal of preparing them for more independent living” served a primary educational purpose). These interpretations of the Dover Amendment were consistent with the SJC’s longstanding tradition of taking a broad view of the notion of ‘education’:
Education is a broad and comprehensive term. It has been defined as “the process of developing and training the powers and capabilities of human beings.” To educate, according to one of Webster’s definitions, is “to prepare and fit for any calling or business, or for activity and usefulness in life.” Education may be particularly directed to either the mental, moral, or physical powers and faculties, but in its broadest and best sense it relates to them all.
Mt. Hermon Boys’ Sch. v. Town of Gill, 145 Mass. 139, 146 (1887) (emphasis added). The McLean Hospital decision can be viewed as the latest in a long line of cases continuing this tradition.
The SJC’s Decision in McLean Hospital
The plaintiff, McLean Hospital (“McLean”), purchased land in the town of Lincoln for the purposes of developing a residential skills-based program for adolescent males with “emotional dysregulation,” known as the “3East Program” (the “Program”). Despite receiving initial approval for the Program’s development by Lincoln’s building commissioner, McLean faced opposition from Lincoln residents, who challenged the program before the local zoning board of appeals (the “ZBA”). Upon review, the ZBA decided that the Program was “medical or therapeutic,” as opposed to “educational,” in nature, and, thus, did not qualify for exemption from the town’s zoning laws under the Dover Amendment. McLean filed an action in Land Court to challenge the ZBA’s decision. Finding in favor of the ZBA, the Land Court judge held that the proposed use of land was not “for educational purposes,” due primarily to the fact that the Program focused on “therapeutic” inward-facing life skills rather than “educational” outward-facing life skills.
On appeal, the SJC considered whether the Program, which was “designed to instill fundamental life, social, and emotional skills,” qualified as “educational” for purposes of Dover Amendment protection. McLean, 483 Mass. at 217. Ultimately, the Court concluded that the proposed program and its skill-based curriculum, “although not a conventional educational curriculum offered to high school or college students,” fell “well within the ‘broad and comprehensive’ meaning of “educational purposes” under the Dover Amendment.” Id. at 216 (citation omitted).
The SJC reached this conclusion by applying a two-pronged test: (1) whether “the bona fide goal” of the use can reasonably be described as “educationally significant;” and (2) whether “the educationally significant goal [is] the primary or dominant purpose for which the land or structures will be used.” McLean, 483 Mass. at 220 (citing Regis College v. Weston, 462 Mass. 280, 286 (2012)) (internal quotation marks omitted).
Applying the first prong, the SJC considered the various aspects of the Program’s curriculum, which was to employ a “highly structured, nationally recognized, dialectical behavior therapy approach to attempt to develop social and emotional skills in students with severe deficits in these skills” and to feature a curriculum “taught in an experiential manner by specialists in clinical education.” McLean, 483 Mass. at 217, 219. The Program was to consist of instruction and practice in social and emotional skills focused in: (1) mindfulness and ability to pay attention; (2) emotional regulation; (3) development and maintenance of interpersonal relationships; (4) distress tolerance; and (5) validation, which the SJC described as “well-established areas where prior research has shown that training can be very effective.” Id. at 218. Ultimately, the SJC found that the Program would qualify as educationally significant, thereby upholding the longstanding notion that a program that instills “a basic understanding of how to cope with everyday problems and to maintain oneself in society is incontestably an educational process” within the meaning of the Dover Amendment. Id. at 221 (emphasis in original) (citation omitted).
Applying the second prong, the SJC rejected the Land Court’s characterization of the Program as predominately therapeutic, explaining that a skills development program does not lose its primary educational purpose simply because “the particular competencies taught also may be therapeutic, rehabilitative, or remedial of an underlying condition.” Id. Notably, the SJC rejected the defendants’ contention that the Program was not educational due to the presence of a psychiatrist on staff and the fact that “participants may be a threat to themselves or others, in light of some of their histories of thoughts of suicide or self-injurious behaviors.” Id. at 223. As the SJC explained, the concepts of education and rehabilitation are not mutually exclusive, and “an attempt to sever that which is educational from that which is therapeutic is ordinarily a rather futile exercise.” Id. at 225. Moreover, the SJC rejected the lower’s courts distinction between outward-facing and inward-facing life skills:
Both inward-facing and outward-facing types of skills, even assuming they can be meaningfully parsed in this manner, are part of “the idea that education is the process of preparing persons ‘for activity and usefulness in life’” and thus protected as a significant educational purpose under the Dover Amendment . . . . We also decline to adopt the judge’s parsing of distinctions between a “therapeutic” program to teach inward-facing life skills and an “educational” program to teach outward-facing life skills.
Id. at 224-25 (citations omitted).
Implications of the McLean Decision Moving Forward
Advocates for persons with disabilities have celebrated McLean as a significant victory in the fight towards securing equal access to education for all. The decision confirms that a determination of whether a proposed use has an educationally significant purpose should focus on the program itself, rather than the type of student participating in the program. In so doing, McLean makes it clear that education with a therapeutic purpose and education with a traditional academic purpose are both valid and meaningful forms of education that are equally entitled to benefit from the Dover Amendment.
While McLean has widely been regarded as a decision concerning specialized education for persons with disabilities, the case has important implications for traditional education as well. As public school curriculums continue to evolve towards the inclusion of emotional and behavioral learning, McLean should be viewed as a significant and powerful reminder of what our jurisprudence has long understood to be true: All students must be learners – not just of arithmetic and spelling – but of the capacity to behave and interact with self-awareness, self-regulation, and empathy for others. The SJC has long held that education is a “broad and comprehensive” term. Thus, the importance of McLean does not lie in the creation of new legal precedent, but in the deliverance of an impetus to align society’s understanding of what it means to educate a human being with that of our courts.
Caiti A. Zeytoonian is an Antitrust & Competition associate at Morgan, Lewis & Bockius LLP. She represents and advises clients in connection with federal and state government antitrust investigations, civil and criminal antitrust litigation, and antitrust compliance issues.
by Reyna M. Ramirez
Dangerousness hearings have huge stakes for defendants: if the Commonwealth proves by clear and convincing evidence that there are no conditions that can assure the safety of the community, a defendant can be incarcerated for up to 120 days in a district court case, or 180 days in a Superior Court case. G.L. c. 276, § 58A. However, pretrial detention based on “dangerousness” is counter-balanced by the presumption of innocence that undergirds our entire criminal justice system, and criminal defendants have recently mounted successful challenges to certain applications of the statute. This article reviews the challenges, the Supreme Judicial Court’s rulings, and responsive proposed legislation.
“Dangerousness” Hearings Under G.L. c. 276, § 58A
Under General Laws c. 276, § 58A, a court may order pretrial detention of a criminal defendant if the prosecution shows, by clear and convincing evidence, that no conditions of release will reasonably assure the safety of any other person or the community. But the Commonwealth can seek such pretrial detention only if the defendant is charged with: (a) one of several predicate enumerated crimes; (b) a misdemeanor or felony that involves “abuse” (the “abuse clause” of § 58A); (c) a felony that has as an element the use, attempted use, or threatened use of physical force against another (the “force clause”); or (d) a felony that, by its nature, involves a substantial risk that physical force against the person of another may result (the “residual clause”).
The abuse clause defines “abuse” with reference to the definition of abuse contained in Chapter 209A, that is, where the charged crime is against the defendant’s “family or household member,” including somebody who is or has been in a substantive dating or engagement relationship with the defendant, and involves: 1) attempting or causing physical harm; 2) putting others in fear of imminent serious physical harm; or 3) causing another to participate in sexual relations involuntarily through force, threat, or duress (i.e., rape).
The force clause focuses on whether the elements of the charged offense involve the use of force. A “categorical approach” is used to determine whether a non-enumerated felony qualifies as a predicate under the force clause. Commonwealth v. Young, 453 Mass. 707, 712 (2009). This approach assesses the elements of the felony “independent of the particular facts giving rise to a complaint or indictment.” Id. In other words, to determine whether a charge qualifies as a predicate under the force clause, the court asks not whether the defendant’s conduct involved the use of force, but rather whether the elements of the crime necessarily always involve the use of force.
Finally, the residual clause asks whether a felony “by its nature, involves a substantial risk that physical force against the person of another may result.” G. L. c. 276, § 58A.
Commonwealth v. Barnes / Scione v. Commonwealth
In January 2019, the Supreme Judicial Court ruled on the consolidated appeals of David Barnes and William Scione, each of whom had been detained following a finding of dangerousness under § 58A. Scione v. Commonwealth, 481 Mass. 225 (2019). Barnes was charged with statutory rape in violation of G.L. c. 265, § 23A, based on an allegation that he had sexual intercourse with a 15-year-old girl at a hotel after the two met online. Scione, on the other hand, was charged with using an incendiary device in violation of G.L. c. 266, § 102A, based on an allegation that he created a homemade improvised explosive device and placed it at the bottom of the driveway of his former girlfriend’s home (the record indicated that the device could have caused serious harm if it had not failed to explode). Neither of the charged crimes is an enumerated predicate charge under § 58A.
The SJC first ruled that statutory rape under § 23A is not a predicate charge under the force clause. Using the required categorical approach to analyze the elements of statutory rape under § 23A, the SJC observed that the crime requires proof that: (1) the defendant had sexual or unnatural intercourse with (2) a child between 12 and 16 years old where (3) there was a greater than 10-year age difference between the defendant and the child. Thus, force is not a required element of proof for statutory rape. The SJC noted that forcible rape of a child is its own crime under G.L. c. 265, § 22A, and that“[t]he fact that the Legislature saw fit to create two separate statutory rape offenses – one that includes the use of force and one that does not” – supported its decision to find there is no force element with respect to § 23A. Scione, 481 Mass. at 230. Justice Lowy wrote a separate concurrence “because such a counterintuitive result requires further discussion and consideration by the Legislature,” signaling to the Legislature to fix what he termed an “unfortunate” decision mandated “under the law as currently written.” Id. at 239.
The SJC next ruled that statutory rape under § 23A cannot be a predicate charge under the residual clause, because the residual clause is unconstitutionally vague. Scione, 481 Mass. at 230. To reach this conclusion, the SJC relied on the decisions of the United States Supreme Court in Johnson v. United States, 576 U.S. —, 135 S. Ct. 2551 (2015) and Sessions v. Dimaya, 548 U.S. —, 138 S. Ct. 1204 (2018) which, respectively, held that similarly-worded residual clauses in the federal Armed Career Criminal Act and the federal statutory definition of “crime of violence” were each vague because they failed to set out how to determine which crimes triggered the statute’s application. Noting that it had already followed Johnson in interpreting the Massachusetts Armed Career Criminal Act, see Commonwealth v. Beal, 474 Mass. 341 (2016), the SJC ruled that the residual clause of § 58A is unconstitutionally vague under Article 12 of the Massachusetts Declaration of Rights and, therefore, cannot be used to justify dangerousness proceedings in any case.
Turning to Scione’s case, the Court analyzed whether his charge of using an incendiary device under § 102A could trigger a dangerousness hearing under the abuse clause (which, the Commonwealth argued, applied because the alleged victim had previously been in a substantive dating relationship with the defendant). The Court held that, unlike the force clause, the abuse clause does not require use of the categorical approach. The SJC reached this conclusion in part because only one Massachusetts statutory crime—assault and battery on a household member (G.L. c. 265, § 13M)—explicitly includes abuse as an element. Id. at 236. Using statutory interpretation principles to presume that the Legislature intended to act logically, the Court opined that, “had the Legislature intended that only one crime be captured under the abuse clause,” it would have enumerated that crime rather than enact a separate “abuse” clause. Id. Instead, the SJC found, abuse “is best described as a characterization of an action or actions” and, therefore, a judge can look at the details of the defendant’s underlying conduct to determine whether the charge involves abuse. Id. Applying those principles to Scione, the SJC found that his alleged acts of placing a potentially-harmful IED on the property of his former girlfriend indeed involved abuse.
Commonwealth v. Vieira
The SJC’s decision in Barnes paved the way for its October 2019 decision in Commonwealth v. Vieira. 483 Mass. 417 (2019). There, the defendant was charged with indecent assault and battery on a child under 14 years old, in violation of G.L. c. 265, § 13B, based on allegations that he had engaged in sexual activity with a thirteen-year old boy he met online. Indecent assault and battery on a child under 14 is not an enumerated charge under § 58A, and the Commonwealth sought to treat it as a predicate charge under the force clause.
At the outset of its opinion, the SJC reminded practitioners that “pretrial detention is a measure of last resort,” and that the presumption of innocence always applies. Applying the categorical approach, the SJC observed that indecent assault and battery on a child under § 13B does not have statutory elements, but rather incorporates the common law definition of battery, including to the extent that an assault is simply a threatened or attempted battery. The SJC explained that, at common law, there were three types of battery: (1) harmful battery, involving touching with such violence that bodily harm was likely to result; (2) reckless battery, involving a wanton, willful, or reckless act that results in injury; and (3) offensive battery, requiring “only that the defendant, without justification or excuse, intentionally touched the victim, and that the touching, however slight, occurred without the victim’s consent.” Although the first two types, the SJC found, necessarily involve the use of physical force, offensive battery does not. And, because a court evaluating bail and pretrial detention does not look to whether the charged conduct involves harmful, reckless, or offensive battery, application of the categorical approach means that a statutory crime incorporating all three types of battery does not necessarily always include force. Applying those principles, the SJC concluded that indecent assault and battery under § 14B is not a predicate charge under the force clause of § 58A.
Two days after the SJC’s decision in Barnes, Governor Charles Baker submitted House Bill No. 66, An Act to Protect the Commonwealth from Dangerous Persons, which sought to change the dangerousness statute to include sex offenses involving children by adding those crimes – along with others – to § 58A’s list of enumerated crimes. This bill retains the force clause but completely removes the unconstitutional residual clause. Adding more enumerated crimes would have the effect of subjecting more individuals to dangerousness hearings and pre-trial detention. However, this approach does not address the issue that battery may not always include force, but commonly does. See, e.g., G.L. c. 265, § 13A (assault and battery). Instead, this legislation only addresses the specifics of the cases the SJC has adjudicated and misses an opportunity to draft legislation that looks forward and targets only the most dangerous of offenses and individuals.
Reyna M. Ramirez is a Partner at Ramirez and Sunnerberg, a criminal defense and prisoners’ rights practice on the South Shore. She is also an Associate at the firm J. W. Carney, Jr. and Associates, where she litigates complex criminal defense cases.
by Andrew Gambaccini
The Legislature enacted the Massachusetts Tort Claims Act (“MTCA”), G.L. c. 258, §§ 1 et seq., to replace a crazy quilt of judicially created exceptions to governmental immunity and provide a “comprehensive and uniform regime of tort liability for public employers.” Lafayette Place Associates v. Boston Redevelopment Auth., 427 Mass. 509, 534 (1998). Since its initial enactment, what has developed is a further set of immunity principles, exceptions to those principles, and exceptions to the exceptions to the principles that has led to uncertainty for courts and practitioners, which continues with the decision in Reid v. City of Boston, 95 Mass. App. Ct. 591, rev. denied, 483 Mass. 1102 (2019).
The Evolution of Governmental Immunity in Massachusetts
Historically, the Commonwealth and its political subdivisions enjoyed broad governmental immunity protections based upon common law principles. See Cormier v. City of Lynn, 479 Mass. 35, 37-38 (2018) (citations omitted). Over time, a convoluted landscape of judicial exceptions to governmental immunity developed, triggering a 1973 request from the SJC that the Legislature create a statutory scheme authoritatively detailing the contours of governmental immunity. See Morash & Sons, Inc. v. Commonwealth, 363 Mass. 612, 618-21 (1973). After a few years of legislative inaction, in 1977 the SJC made its intentions clear: it would abrogate governmental immunity following the 1978 legislative session if the Legislature did not take definitive action. See Whitney v. Worcester, 373 Mass. 208, 210 (1977).
The MTCA followed, allowing for limited governmental tort liability as well as setting out the procedures through which claims were to be presented and pursued. The statutory scheme provides generally that public employers are liable for the negligent or wrongful acts or omissions of public employees acting within their scope of employment, while public employees are shielded from personal liability for negligent conduct. G.L. c. 258, § 2. At the same time, several statutory exceptions to the general waiver of governmental immunity were created. See G.L. c. 258, § 10.
It was not long before case nuances again created interpretive difficulties. In 1982, the SJC applied the “public duty rule” to protect governmental units from liability unless a plaintiff demonstrated that a duty breached was owed to that plaintiff, and not simply to the public at large. See Dinsky v. Framingham, 386 Mass. 801 (1982). Within a short time, the SJC endorsed a “special relationship” exception to the public duty rule, permitting governmental liability where a governmental actor reasonably could foresee both an expectation to act to protect a plaintiff and the injury caused by failing to do so. See Irwin v. Ware, 392 Mass. 745 (1984). When subsequent judicial gloss through the “public duty-special relationship dichotomy” failed to produce “a rule of predictable application[,]” the SJC announced its intention to abolish the public duty rule altogether. Jean W. v. Commonwealth, 414 Mass. 496, 499 (1993) (Liacos, C.J. concurring); see also 414 Mass. at 514-15 (Wilkins, Abrams, J. concurring) and 523-25 (Greaney, J. concurring). The Legislature responded by amending the MTCA, most notably by adding six new § 10 exceptions, (e) through (j), to the general waiver of governmental immunity,modification that has done little to diminish the vexing complexities of governmental liability and immunity.
Reid v. City of Boston
Reid features the latest judicial foray into two of the knottiest statutory exceptions concerning governmental immunity, §§ 10 (h) and 10 (j). Plaintiff Reid received a call from her sister, during which the sister was heard asking someone to stop following her and why that person’s hands were behind his back. Knowing her sister had a troubled relationship with her boyfriend, Reid drove to her sister’s home, where she saw her sister’s boyfriend, Cummings. Reid engaged him in a conversation that was neither heated nor worrisome for Reid. As they spoke, Reid’s sister called 911 and reported that Cummings had threatened to kill her.
Three Boston police officers responded and came upon Reid and Cummings. The officers perceived the two to be speaking calmly, noted no injuries and saw no indication of either being armed, something both Reid and Cummings denied. As the inquiry continued, one officer approached Cummings from behind, suddenly grabbed him and reached for his waist, intending to frisk Cummings for weapons. Cummings pushed the officer away, drew a firearm from his waistband and opened fire. The officers returned fire. Cummings was killed, one officer was shot in the leg and Reid also was shot in the leg by Cummings.
Reid sued the officers and the City. The Superior Court dismissed the claims against the officers, but the negligence claim against City proceeded to trial. Reid claimed that the attempt to frisk Cummings created a harm that otherwise did not exist, escalating a controlled encounter into a shootout, and that such negligence caused her injury. By special verdict form, the jury found the City liable, concluding the police pre-shooting negligence was a substantial contributing factor in causing Reid’s injury. The City filed a motion for judgment notwithstanding the verdict, arguing that it was immune pursuant both to G.L. c. 258, § 10 (h), which, among other things, immunizes municipalities from claims based upon failure to provide police protection, and § 10 (j), which, in part, forecloses claims against a governmental agency based upon a failure to prevent violence by a third party not originally caused by a government actor. The Superior Court denied the motion and the City appealed.
The Appeals Court affirmed the denial of the motion, turning away both of the City’s § 10 arguments. As to immunity for failure to provide police protection under § 10 (h), the tip of the City’s spear was Ariel v. Kingston, 69 Mass. App. Ct. 290 (2007). Ariel involved a plaintiff who was a passenger in a motor vehicle approaching an intersection where police officers were directing traffic in the vicinity of an accident. Proceeding with a green light, the driver of the plaintiff’s vehicle entered the intersection while contemporaneously an officer waved, against a red light, another vehicle into the intersection, leading to a collision. The Ariel Court determined that the town was immune pursuant to § 10 (h) because controlling traffic was a form of police protection to the public.
Analyzing the § 10 (h) exception in Reid, the Appeals Court stated that, while § 10 (h) “shields municipalities from claims where police officers negligently failed to prevent harm posed by third parties[,]” Reid’s “successful theory of liability was not that the police officers failed to protect her from a threat, but rather that the officer’s affirmative conduct created a danger that did not previously exist.” Reid distinguished Ariel by noting the officers directing traffic were providing police assistance to mitigate a dangerous condition while, in Reid, the officers encountered a calm situation and it only was police action that created the danger.
Concerning immunity for the failure to prevent violence by third parties not originally caused by government actors under § 10 (j), Reid avoided the intensely problematic determination of whether the officers’ actions “originally caused” Reid’s injury, instead drawing on a statutory exception to this immunity. Specifically, the Appeals Court found that subsection § 10 (j) (2)’s exception to immunity applied because the officer’s intervention had “place[d] the victim in a worse position than [s]he was in before the intervention[.]” In broad stroke, Reid concluded that the City could be liable because its officer had engaged in an “affirmative act” that contributed materially to create the danger from which the plaintiff sustained injury.
It long has been difficult to chart a predictable course through the statutory and judicial landscape of governmental immunity. Reid’s interpretation of § 10 (h) adds another layer of complexity to this area of law. While Ariel involved an officer engaging in the affirmative act of waving a car into a police-controlled intersection, there was no municipal liability in that case because the circumstance was “dangerous” however municipal liability existed in Reid because a police response to a 911 call featuring an allegation of domestic assault somehow took place in “calm” conditions. Further, because Reid passed on its opportunity to clarify §10 (j), including, for example, a discussion of factors relevant to determining whether the officers’ actions were the original cause of injury, §10 (j) remains a morass of cascading exceptions to the MTCA’s general waiver of immunity.
Cummings was armed and prepared to shoot. If he had fired before any attempt at a frisk, there seems little doubt that the City could not have been found liable. That Cummings made his choice to shoot after an officer tried to frisk him for purposes of weapon detection and disarmament rendered the City liable for Cummings’ shooting of Reid. In the last analysis, Reid’s interpretation of §§ 10 (h) and 10 (j) leaves the principles of governmental immunity as it found them – a complex, nuanced and often confusing “process of defining the limits of governmental immunity through case by case adjudication.” Whitney, 373 Mass. at 209-10.
Andrew Gambaccini is an associate at Reardon, Joyce & Akerson, P.C., where he focuses his practice in civil rights and the defense of law enforcement officers.
Student Disciplinary Proceedings Revisited: A Responding Party is Not Entitled to “Quasi-Cross-Examination” in Private School Disciplinary ProceedingsPosted: February 19, 2020
by R. Victoria Fuller
Until recently, a key procedural issue in disciplinary proceedings administered by educational institutions—whether the responding party was entitled to conduct cross-examination—remained unclear in Massachusetts and the First Circuit. A pair of recent First Circuit decisions provide some clarity for Massachusetts public and private institutions, respectively. First, in Haidak v. University of Massachusetts-Amherst, 933 F.3d 56 (1st Cir. 2019), discussed in the Fall issue of the Boston Bar Journal, the First Circuit Court of Appeals addressed the obligations imposed by the Due Process Clause of the Fourteenth Amendment on public educational institutions in disciplinary proceedings. There, the Court held that the responding party did not have a right to cross-examine the reporting party or other adverse witnesses in such proceedings, even where credibility was at issue, and that a public educational institution could implement a non-adversarial, “inquisitorial” system without violating the federal Due Process Clause so long as the educational institution adequately questioned the reporting party.
Most recently, in John Doe v. Trustees of Boston College, 942 F.3d 527 (1st Cir. 2019), the First Circuit addressed the same issue, but in relation to disciplinary proceedings in private educational institutions. As discussed below, the responding party argued that he was entitled to real-time examination of the reporting party and adverse witnesses through a neutral—or as the First Circuit called it, “quasi-cross-examination.” The Court rejected that argument. It held that private school proceedings are governed by state law, not the federal Due Process Clause, and that applicable Massachusetts contract law did not recognize a right of cross-examination.
The Complaint and Disciplinary Proceedings
In John Doe, the disciplinary proceeding was triggered by a complaint by a female student that a male student—the responding party—had sexually assaulted her. The complaint was governed by the university’s Student Sexual Misconduct Policy (the “Policy”), which established the university’s procedure for the adjudicating sexual misconduct complaints. Under the Policy, sexual misconduct complaints were to be investigated by one (or more) internal or external investigators. The Policy did not permit either party to cross-examine the other party or adverse witnesses.
In the case of John Doe, once the investigators completed the investigation, they prepared a written report. Applying a preponderance of the evidence standard, the investigators found that several of the responding party’s statements lacked credibility, or failed to support his defense that the sexual contact at issue was consensual, and concluded that the responding party had violated the Policy. Based on the investigators’ findings and conclusions, the university imposed an immediate one-year suspension on the responding party.
After exhausting his appeals at the university, the responding party sued in the District of Massachusetts, seeking an injunction staying his suspension. The responding party argued that he was entitled to a form of real-time examination, including:
- Contemporaneous questioning by a “neutral” (who may be a hearing officer or an investigator) of both the reporting party and the responding party (though not necessarily in the same room);
- Disclosure of the exact statements of the adverse party in real time; and
- The opportunity to submit questions to the neutral, either orally or in writing, to be put to the other party.
The District Court agreed, and granted the requested injunction, thus staying the responding party’s suspension. The university appealed.
Private School Disciplinary Proceedings Are Governed by State Law
The First Circuit disagreed and vacated the injunction. The Court held that Massachusetts private schools are not obligated to provide any form of cross-examination, let alone the “real-time examination” sought by the responding party (and which the First Circuit referred to as “quasi-cross-examination”).
The Court explained that Massachusetts private school disciplinary proceedings are not governed by the federal Due Process Clause, but instead by applicable Massachusetts contract law. See 942 F.3d at 529. In Massachusetts, courts use two analyses to determine whether a private institution has breached its contract with a student: (1) whether the reasonable expectations of the parties have been met; and (2) whether the procedures implemented by the school were conducted with “basic fairness.” Id. at 533-34. First, the Court rejected the responding party’s argument that he reasonably expected he would be afforded the opportunity to conduct a form of quasi-cross-examination. Nothing in the Policy’s detailed procedures provided any basis for such an expectation.
Second, the Court stated that Massachusetts concept of “basic fairness” does not require quasi-cross-examination. “Basic fairness” requires only that a public institution act in good faith and on reasonable grounds, and that its decision must not be arbitrary and capricious. See Coveney v. President & Trs. of The Coll. of The Holy Cross, 388 Mass. 16, 19 (1983); Driscoll v. Bd. of Trs. of Milton Acad., 70 Mass. App. Ct. 285, 295 (2007). The Court also clarified that its recent decision in Haidak v. University of Massachusetts-Amherst was inapplicable: Boston College was neither a public university nor a government actor, and therefore was not subject to the federal Due Process Clause. The Court also noted that the Massachusetts Supreme Judicial Court had specifically held in Schaer v. Brandeis University, 432 Mass. 474 (2000) that the obligations imposed by basic fairness on private institutions were not equivalent to those imposed by the federal Due Process Clause on public institutions, and Massachusetts state courts had not recognized quasi-cross-examination as an obligation imposed by the basic fairness requirement.
Perhaps anticipating that its decision in John Doe would not be the final word on the matter, the First Circuit concluded that “whether Massachusetts in the future will wish to redefine the requirements of contractual basic fairness in college and university discipline matters poses important policy choices for the Supreme Judicial Court and/or state legislature to make.” Id. at 536.
With its decision in John Doe, the First Circuit clarified the distinction between the obligations imposed on public educational institutions by the federal Due Process Clause, and those imposed by Massachusetts contract law on private schools.
Importantly, the First Circuit also noted that “[f]ederal courts are not free to extend the reach of state law.” 942 F.3d at 535. While no previous Massachusetts case has held that “basic fairness” includes a right to cross-examination in private school disciplinary proceedings, the right of cross-examination in both public and private school disciplinary proceedings has become a hot topic across the country. Indeed, the law is rapidly evolving, and not always cohesively. Compare Haidak v. University of Massachusetts-Amherst, 933 F.3d 56 (2019) (holding no absolute right to cross-examination in public institution disciplinary proceedings) with Doe v. Baum, 903 F.3d 575, 582-3 (6th Cir. 2018) (recognizing a right to cross-examination in public institution disciplinary proceedings).
Perhaps not surprisingly, then, after the case was remanded by the First Circuit, lawyers for John Doe requested that the District of Massachusetts certify to the Massachusetts Supreme Judicial Court the question:
[W]hether basic fairness, implied in the contract between a student and a college or university, requires an opportunity for parties in a college or university disciplinary process, to have their questions put to each other and witnesses in real time, even if only through a neutral person, particularly in matters that involve credibility determination, such as the Title IX investigatory setting.
See Civ. A. No. 1:19-cv-11626-DPW, Dkt. 73. The District of Massachusetts has postponed any potential certification until after summary judgment practice. One way or the other, given the recent changes and clarifications in this area of the law, we can expect unsatisfied responding parties in private school disciplinary proceedings to continue to raise the issue in Massachusetts courts until the Supreme Judicial Court directly addresses it.
Victoria Fuller is an attorney at White and Williams LLP. Her practice focuses on insurance law, employment law, and general commercial litigation.
 “Basic fairness” applies not only to colleges and universities, but to all private educational institutions. See, e.g., Discol v. Bd. of Trs., 70 Mass. App. Ct. 285, 295 (2007) (applying “basic fairness” standard to disciplinary proceedings in private school that admitted students from kindergarten through grade twelve).
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.