Massachusetts High Court Rules State Law Does Not Authorize Detention Based on ICE Detainers Alone

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by Tad Heuer and Daniel McFadden

Case Focus

On July 24, 2017, in Lunn v. Commonwealth, the Massachusetts Supreme Judicial Court ruled that state and local officials are not authorized to arrest immigrants based on civil immigration detainers issued by U.S. Immigration and Customs Enforcement (“ICE”).  As a result, public safety officials in Massachusetts generally cannot detain or hold a person in custody based solely on the existence of an ICE detainer.  It appears that the SJC is the first state highest appellate court to reach and decide this issue.

The Detainer Controversy

Although ICE officers frequently detain people accused of being “removable” (i.e., subject to deportation), ICE does not always make the initial arrest.  Rather, ICE often issues “detainers” to the state or local public safety officials who have certain immigrants in their custody.  A detainer is ICE’s “request” that, if an immigrant of interest to ICE is in the custody of local authorities for any reason, the authorities voluntarily delay that individual’s release by up to 48 hours to allow ICE to transfer him or her into immigration custody.  This is an efficient mechanism for ICE to seize immigrants who are being released from prison, who have been arrested, or who have simply been pulled over for a traffic stop.

Detainers have been controversial because they essentially ask state and local officials to hold people in custody absent a judicial warrant or probable cause.  Most violations of immigration law are not crimes, and most removal proceedings are purely civil matters handled by administrative courts within the Department of Justice.  Nor do detainers typically provide information establishing probable cause.  Critics of current ICE practice have contended that neither state law, nor the state or federal constitutions, permit a warrantless arrest in such circumstances.

Prior to Lunn, challenges to the legality of compliance with ICE detainers had met with some success.  In 2014, the Maryland Attorney General issued a memorandum concluding that “an ICE detainer, by itself, does not mandate or authorize the continued detention of someone beyond the time at which they would be released under State law.”  The Virginia Attorney General issued an official opinion reaching the same conclusion in 2015.  In Massachusetts, a Single Justice of the SJC ruled in May 2016 that law enforcement officials are “without authority to hold [a person], or otherwise order him held, on a civil [ICE] detainer.” Moscoso v. A Justice of the East Boston Div. of the Boston Mun. Court, No. SJ-2016-0168, slip op. at 1 (May 26, 2016). However, until Lunn, it appears that no state’s highest appellate court had squarely addressed the question.

The Lunn Decision

The Lunn case arose from the detention of Sreynoun Lunn, an immigrant ordered removed from the United States in 2008.  However, ICE was apparently unable to execute that order because Mr. Lunn’s country of origin declined to issue the necessary travel documents, and he was therefore released.

In 2016, Mr. Lunn was held by Massachusetts authorities on a larceny charge, which the state court dismissed for lack of prosecution.  Ordinarily, Mr. Lunn would have been free to go.  However, ICE had issued an immigration detainer requesting that Massachusetts authorities continue holding Mr. Lunn for up to two days beyond when he would otherwise have been released.  Consequently, even though all charges had been dismissed, court officers detained Mr. Lunn for several more hours, until ICE agents arrived and took him into federal custody.

Mr. Lunn promptly sought a ruling that state officials were wrong to hold him based solely on ICE’s civil immigration detainer.  A single justice of the SJC reserved and reported this question to the full Court.

In agreeing with Mr. Lunn, the SJC first explained that “the administrative proceedings brought by Federal immigration authorities to remove individuals from the country are civil proceedings, not criminal prosecutions.”  The Court further explained that ICE detainers are issued for the purpose of this “civil process of removal,” and are purely requests for voluntary state or local assistance.  In its briefing, the federal government even expressly conceded that state authorities are not obligated to enforce ICE detainers.

The Court then turned to the question of whether Massachusetts officials have statutory or common-law authority to arrest people solely because the officials received a voluntary request from the federal government to hold the person for a civil proceeding.  The Court found no such authority.  The Court also rejected the federal government’s argument that state law enforcement officers possess “inherent authority” to enforce detainers.  Accordingly, it is generally unlawful for Massachusetts state and local officials to arrest and detain a person based solely on an ICE detainer.

However, Lunn does not preclude executing an arrest for other independent reasons (for instance, if the person is subject to a state or federal warrant arising out of suspected criminal activity).  Nor does Lunn prevent officials from providing ICE with advance notice of a given detainee’s or inmate’s intended release date.

The Lunn decision could also carry implications beyond the immigration context, particularly its conclusion that a law enforcement officer has no arrest powers outside of those expressly granted by statute or common law.  As the Court stated, “[t]here is no history of ‘implicit’ or ‘inherent’ arrest authority having been recognized in Massachusetts that is greater than what is recognized by our common law and the enactments of our Legislature.”  Further, the Court indicated its discomfort with any expansion of common-law arrest powers, explaining that “[t]he better course is for us to defer to the Legislature to establish and carefully define” new arrest powers.  This language likely will be useful to future criminal defendants and civil rights plaintiffs who seek to challenge other forms of warrantless detention.

Notably, authorship of the Lunn decision was attributed as “By The Court,” rather than to any specific justice, and the reasons for the Court doing so remain unclear.  What is known is that this approach is rare, having last been employed over two decades ago. While typically employed in cases (like Lunn) involving regulation of the judicial branch or the practice of law, it is infrequent even then: in the vast majority of decisions in such cases, opinions are authored by specific and identified justices.

Open Questions

The Lunn decision leaves several open questions.  For example, the SJC did not reach the question whether Mr. Lunn’s arrest would, if nominally authorized by state statute, be permitted by the state and federal constitutions.  This is not strictly academic.  Governor Baker has drafted legislation that would authorize such detention in at least some circumstances.  Critics have expressed strong opposition to any such law on multiple constitutional grounds.

The SJC also did not reach the question of whether an arrest would be lawful if a particular detainer form provided sufficient information to establish probable cause that the individual had committed a federal crime.  Nor did the SJC address whether an arrest would be permissible if made by a state or local official acting pursuant to a state-federal partnership under 8 U.S.C. § 1357(g).  That statute permits ICE to specially deputize state and local officials to act with the authority of ICE officers.  In Massachusetts, ICE has executed such agreements with the Massachusetts Department of Corrections and the Sheriff’s Offices of Bristol and Plymouth counties.  These outstanding questions will have to await resolution in future cases.

Tad Heuer is a partner at Foley Hoag LLP practicing administrative law.  He is currently a member of the Board of the Boston Bar Journal.  Daniel McFadden is a litigation associate at Foley Hoag LLP, where his practice includes representation of both individuals and organizations on immigration law matters.

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Endrew F. v. Douglas County and its Impact on Special Education Law

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by Daniel T. S. Heffernan

Case Focus

“Anxiously awaiting” was an apt description of the feeling among the lawyers who represent school districts and families of the approximately two hundred thousand students currently eligible for special education in Massachusetts, as they waited for the Supreme Court’s decision in Endrew F. v. Douglas County, 137 S.Ct. 988 (2017). The Court was expected to delineate the level of services school districts must provide to students with special needs, an issue that it had not addressed in-depth since Board of Education v. Rowley, 458 U.S. 176 (1982).

The Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1400 et seq., provides that each special education eligible student must receive a “free appropriate public education” (“FAPE”). FAPE includes special education and related services that are provided at public expense and under public supervision, and that meet the state’s education standards. The school district must provide special education and related services “in conformity with the [student’s] individualized education program,” or IEP. §1401(9)(D). This IEP is “the centerpiece of the statute’s education delivery system for” the eligible student. Honig v. Doe, 484 U.S. 305, 311 (1988). The IEP must describe the student’s present level of performance and must detail measurable goals for the student and how their progress is to be gauged.

In assessing the adequacy of the school district’s IEP for a particular student, the key inquiry is whether the IEP will enable the student to make “effective progress.” The Court first addressed the “effective progress” standard in Rowley. The student in Rowley received her special education services and accommodations in a regular education setting (“inclusion” program), was performing better than many others in her class, and was advancing easily from grade to grade. The district argued that FAPE requirements were merely aspirational while the parents pushed for additional programming, arguing that districts were required to provide students with disabilities the educational opportunities that were exactly equivalent to their non-disabled peers. The Rowley Court charted a middle path, requiring school districts to provide an IEP that was “reasonably calculated to enable the child to receive educational benefits.” Rowley, 458 U.S. at 207. The Court noted that for students in regular-education classes, an IEP may generally be required to facilitate grade advancement. However, recognizing the wide spectrum of students with IEPs, the Court refrained from establishing “any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act.” Id. at 202.

In in Endrew F., a student with autism was educated in Colorado’s Douglas County School District from preschool through fourth grade. Dissatisfied with his progress, his parents placed him in a private special education school and sought reimbursement and prospective funding for that placement. The key issue in the dispute was whether Endrew would make effective progress in the public school program that was essentially a continuation of the programming he had been receiving. The fact that his IEPs had essentially carried over the same goals and objectives from year to year demonstrated to the parents that he was not making effective progress. Endrew clearly had done much better in his private placement.

Endrew’s parents litigated the matter through an administrative proceeding at the Colorado Department of Education, which deemed Endrew’s IEPs appropriate and, therefore, denied their claims for reimbursement and for placement in the private school going forward.

The federal district court reviewing the administrative determination found that while Endrew had not made “immense educational growth,” he had at least made “minimal progress.” Endrew F. v. Douglas County, No. 12-2620, 2014 WL 4548439, at 9 (D. Colo. 2014). On appeal, the Tenth Circuit affirmed, holding that an IEP was sufficient if it conveyed an educational benefit that was merely more than “de minimis.” Endrew F. v. Douglas County, 798 F.3d 1329, 1341 (10th Cir. 2015).

The Supreme Court, however, unanimously rejected the “de minimis” standard. The Court examined the history surrounding the passage of IDEA, noting that the IDEA was an “ambitious” piece of legislation aimed at remedying the pervasive and tragic stagnation of students with disabilities. The Court stressed the importance of the unique needs and abilities of the particular student when assessing the adequacy of the individualized educational plan of that student, noting that “[a] focus on the particular child is at the core of the IDEA.” Endrew F., 137 S.Ct. 988 at 12.

The Court restated Rowley’s general principle that the school district must provide an IEP reasonably calculated to enable the student to make progress that is appropriate in light of the student’s particular circumstances. For some students, like the student in Rowley, keeping pace with their non-disabled peers and advancing from grade to grade may be appropriate progress. But for students like Endrew, who were in programs substantially or completely separate from their non-disabled peers, the student’s own potential determines what achievement is “appropriate in light of the student’s circumstances.” For these students, the educational program must be “appropriately ambitious” and provide “the chance to meet challenging objectives.” Endrew F., 137 S.Ct. 988 at 14.

Even before Endrew F., some of the hearing officers with the Massachusetts “court” of original jurisdiction for special education disputes, the Bureau of Special Education Appeals (BSEA), had ordered private residential placements when day placements alone were inadequate to allow the students to acquire independent living skills in preparation to successfully transition to group homes as young adults. See In Re: Boston Pub. Schs., BSEA # 1702809, 22 MSER 239 (Figueroa, 2016); In Re: King Philip Reg’l Sch. Dist., BSEA # 12-0783, 18 MSER 20 (Crane, 2012). While one hearing officer’s decision is not binding on another hearing officer, the few BSEA decisions to interpret Endrew F. thus far have construed it as either equivalent to the standard already being applied in Massachusetts or, in two opinions, as adding an “appropriately ambitious” overlay to that standard. In Re: Norton Pub. Schs., BSEA #1609348, 22 MSER 169 (Berman, 2017); Boston Publ. Schs. & Mass. Dept. of Mental Health, BSEA #1707097, 23 MSER 59 (Berman, 2017).

It therefore appears that, after Endrew F., students with special needs can continue to demand IEPs designed to tap their particular potential to make reasonable progress towards realistic educational goals.

Dan Heffernan concentrates his practice in the areas of special education, civil rights, personal injury, medical malpractice, and children’s torts. He represents children with special needs and their families, people injured in accidents, and those who have had their civil rights violated.


Barbuto v. Advantage Sales & Marketing, LLC: Employers May Risk Disability Discrimination Claims by Prohibiting Use of Medical Marijuana by Qualified Disabled Employees

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by David B. Wilson and Jason McGraw

Case Focus

Since 2013, Massachusetts has allowed qualifying patients with certain medical conditions to lawfully obtain and use marijuana for medical purposes under the Medical Marijuana Act. St. 2012, c. 369, §1 et seq. Even so, the possession of marijuana remains a federal crime. 21 U.S.C. §§ 812(b)(1), (c), and 844(a). Thus, many Massachusetts employers maintain strict drug-free workplace and testing policies that prohibit the use of all “illegal drugs” and make no exception for the use of lawfully prescribed medical marijuana. In the landmark decision Barbuto v. Advantage Sales & Marketing, LLC, 477 Mass. 456 (2017), the Supreme Judicial Court (“SJC”) held that an employer with such a policy may be subject to a disability discrimination claim under Massachusetts law if the employer takes an adverse employment action or otherwise discriminates against a “qualified handicapped employee” based on the employee’s off-site, off-duty use of lawfully-prescribed medical marijuana. Id.

Background

In 2014, Cristina Barbuto was hired for an entry-level position with Advantage Sales and Marketing, LLC (“Advantage”), contingent upon her passing a mandatory drug test. Barbuto disclosed to her soon-to-be supervisor that she would test positive for marijuana because she used lawfully-prescribed medical marijuana to treat her Crohn’s disease. Id. at 458. She also told the supervisor that she did not use medical marijuana daily and would not use medical marijuana before or at work. Although the supervisor initially told Barbuto that her use of medical marijuana “should not be a problem” and called later to “confirm[] that her lawful medical use of marijuana would not be an issue with the company,” Advantage terminated Barbuto’s employment after her drug test results came back positive for marijuana. Id.

Barbuto filed suit alleging the mandatory drug test was an invasion of her privacy and that her termination was unlawful. The SJC addressed the termination claim.

Key Holdings In Barbuto

Massachusetts Disability Discrimination Law Applies to Qualified Handicapped Employees Who Use Medical Marijuana as Treatment

Under the Commonwealth’s anti-discrimination law, a “qualified handicapped employee” has: (1) a right to reasonable accommodation for a handicap to enable the employee to perform the essential functions of their job, and (2) a right to be free from discrimination because of their handicap. Id. at 460 & n.4. In Barbuto, the SJC held for the first time that these protections extend to qualified handicapped employees who lawfully use medical marijuana to treat their handicaps. Id. at 464.  Therefore, where an employer’s drug policy prohibits the use of marijuana and a qualified handicapped employee requests an accommodation to use medical marijuana, the employer has an obligation to: (1) participate in an interactive process, and (2) provide a reasonable accommodation, unless such an accommodation would impose an undue hardship on the employer’s business.

Advantage, which had not engaged in an interactive process, argued that Barbuto was not a qualified handicapped employee because the only accommodation she sought (the continued use of medical marijuana) was a federal crime, and was therefore unreasonable. Id. at 462. The SJC disagreed, and held that under the Medical Marijuana Act “the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication.” Id. at 464.

Advantage also argued that even assuming Barbuto was a qualified handicapped employee, it had not engaged in handicap discrimination where Barbuto had been terminated not because of her handicap, but rather because she had failed a drug test that all employees were required to pass. Id. at 462. The SJC disagreed, holding that termination for violating such a policy “effectively denies a handicapped employee the opportunity of a reasonable accommodation, and therefore is appropriately recognized as handicap discrimination.” Id. at 467.

Failure to Engage in the Interactive Process Is Sufficient to Support a Claim of Disability Discrimination

The SJC permitted Barbuto’s claims for disability discrimination under Massachusetts law to survive the defendant’s motion to dismiss because the employer had wholly failed to participate in the interactive process. The Court emphasized that the “failure to explore a reasonable accommodation alone is sufficient to support a claim of handicap discrimination” where an employee can prove that a reasonable accommodation existed that would have enabled that employee to perform a job’s essential functions. Id. at 466.

An Employer’s Undue Hardship Defense Can Be Proven in a Number of Ways

Although the Court did not need to reach the defense of undue hardship in this case, the Court provided guidance for employers as to when an accommodation would not be required because it would cause the employer undue hardship. An undue hardship may be proven where the use of medical marijuana would: impair the employee’s work performance; pose an unacceptably significant safety risk to the public, the employee, or fellow employees; or violate an employer’s contractual or statutory obligations, thereby jeopardizing its ability to perform its business. Id. at 467-68. The Court also noted that the Medical Marijuana Act does not require employers to permit on-site medical use of marijuana as an accommodation to an employee. Id. at 464–65.

No Cause of Action under the Medical Marijuana Act or for Wrongful Termination in Violation of Public Policy

The SJC rejected Barbuto’s other claims – that her termination amounted to a violation of the Medical Marijuana Act and wrongful termination in violation of public policy. The Court held that aggrieved employees do not have a private right of action under the Medical Marijuana Act, “where such employees are already provided a remedy under our discrimination law, and where doing so would create potential confusion.” Id. at 470. Similarly, the Court declined to recognize a cause of action for wrongful termination in violation of public policy, “[b]ecause a competent employee has a cause of action for handicap discrimination where she is unfairly terminated for her use of medical marijuana to treat a debilitating medical condition.” Id. at 471.

More to Come on Marijuana and the Workplace

While Barbuto provided employees and employers with much guidance, many questions remain.

For example, nothing in Barbuto requires employers to tolerate the recreational use of marijuana by an employee. But what about accommodating a qualified handicapped employee without a medical marijuana card who lawfully uses marijuana purchased at a recreational dispensary to self-treat their handicap? That question remains unanswered in Massachusetts.

May employers require post-offer, pre-employment drug testing for all employees, regardless of their job duties or the potential safety risks to the employer, the employee, or the public? Although the issue has not yet been addressed by the SJC (the issue was stayed in the Superior Court while the unlawful termination claims were appealed), Barbuto’s claim under the Massachusetts Privacy Act survived the defendant’s motion to dismiss. Barbuto alleged that Advantage’s “drug test was unreasonable and not commensurate with her [entry-level, non-safety sensitive] job duties or with the type of business and industry in which [it] is engaged.” Barbuto v. Advantage Sales & Marketing, LLC, 2016 WL 8653056, at *2 (Mass. Super. May 31, 2016). In denying the motion to dismiss, the Superior Court noted that “[t]he only time the Supreme Judicial Court has held that a drug testing procedure violated [the Massachusetts Privacy Act] was in a case where the employee being tested was not engaged in a dangerous or safety-sensitive occupation.” Id. (emphasis added and citation omitted).

Whether the Medical Marijuana Act is preempted by federal law is another interesting question that has yet to be addressed, although other state courts have dealt with the issue of preemption of their state medical marijuana laws. See, e.g., Noffsinger v. SSC Niantic Operating Co. LLC, — F.Supp.3d –, 2017 WL 3401260 (D. Conn. Aug. 8, 2017) (holding that the Connecticut medical marijuana statute is not preempted by the federal Controlled Substances Act, the Americans with Disabilities Act, or the federal Food, Drug, and Cosmetic Act).

David B. Wilson is a Partner at Hirsch Roberts Weinstein LLP where he practices labor and employment law. Dave is also an active member of the Boston Bar Association.

Jason M. McGraw is an Associate at Hirsch Roberts Weinstein LLP where he practices labor, employment, and higher education law. Jason is also an active member of the Boston Bar Association.


Unanswered Questions About Public Corruption Prosecutions After O’Brien

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by William Fick

Case Focus

On April 21, 2017, the First Circuit Court of Appeals denied the government’s petition for rehearing of United States v. Tavares, 844 F.3d 46 (1st Cir. 2016) (“O’Brien”), leaving in place the published opinion that ordered judgments of acquittal and brought the Massachusetts Probation Department “patronage” prosecution to a close. While the Court found that the government “overstepped its bounds in using federal criminal statutes to police the hiring practices” of state officials, id. at 49, the Court actually decided the case on narrow grounds and left unanswered a key looming question in public corruption investigations: can federal authorities prosecute allegedly dishonest but purely “political” quid pro quo exchanges, where there is no allegation of corrupt personal gain?

The O’Brien indictment alleged that state Probation Commissioner Jack O’Brien and two co-defendant officials ran “a rigged hiring system that catered to requests from state legislators and others to employ and promote candidates for employment” in the Probation Department. The indictment did not allege that the defendants, career public servants, put a penny in their pockets or did anything illegal for personal gain. Nor did the government claim that the defendants hired unqualified candidates. Yet prosecutors charged that the defendants committed federal crimes because, in considering and sometimes acting on recommendations from legislators, they violated a policy obligation to hire the “most qualified” candidates and did so with the intent to influence the legislature.

The government recognized that it could not prosecute the defendants for depriving the public of the “intangible right to honest services.” Several years earlier, in Skilling v. United States, 561 U.S. 358 (2010), the Supreme Court had limited “honest services” prosecutions to traditional bribery and kickback schemes and had warned against construing a criminal statute “in a manner that leaves its outer boundaries ambiguous and involves the federal government in setting standards of disclosure and good government for local and state officials,” id. at 402.

Instead, the government charged O’Brien and his co-defendants with conspiracy and racketeering based on predicate acts of mail fraud, bribery, and gratuity. The indictment alleged that rejection letters mailed to unsuccessful job candidates provided the jurisdictional “hook” for mail fraud. It further alleged bribery and gratuity in connection with the hiring of Representative Thomas Petrolati’s wife and employees recommended by Representative Robert DeLeo on behalf of other representatives at the time he was preparing to run for Speaker of the House and was allegedly seeking their votes. After a lengthy trial, the jury convicted the defendants on some of the mail fraud and gratuity charges.

In reversing the convictions and ordering judgments of acquittal, the First Circuit used broad language critical of the attempted reach of the prosecution: “This case involves state officials’ efforts to increase funding for their department through closed door arrangements with state legislators and other public officials. But not all unappealing conduct is criminal. As sovereigns, states have ‘the prerogative to regulate the permissible scope of interactions between state officials and their constituents.’” O’Brien, 844 F.3d at 54 (quoting McDonnell v. United States, 136 S. Ct. 2355, 2373 (2016)). The decision also reiterated Supreme Court warnings about federal meddling in state government. See id. But the court actually decided the case under much narrower, longstanding elemental principles.

With regard to the mail fraud counts, the court found that the rejection letters at issue were not mailed “in furtherance” of the alleged scheme to defraud, as the statute requires. See id. at 59-61. The government had argued that “rejection letters in a corrupt hiring system . . . help to maintain a facade of a merit-based system.” Id. at 59. But the court found that the government “presented no evidence that would allow the jury to infer that the rejection letters in this case served this duplicitous purpose.” Id.

With regard to the gratuity counts, the court held that the “evidence as to the gratuities predicates does not show adequate linkage between the thing of ‘substantial value’ conferred by O’Brien (the jobs) and an ‘official act’ performed or to be performed.” Id. at 55. The “government cannot show the requisite linkage merely by demonstrating that the gratuity was given ‘to build a reservoir of goodwill that might ultimately affect one or more of a multitude of unspecified acts, now and in the future.’” Id.

The O’Brien decision thus confirms the continuing vitality of basic elemental limits on mail fraud, bribery, and gratuity prosecutions. Not every incidental mailing in a fraud scheme can trigger federal prosecution under the mail fraud statute. Bribery and gratuity crimes require a clear connection between a specific “official act,” on the one hand, and a particular “thing of value” provided, on the other hand.

But the First Circuit’s decision did not directly address whether “personal gain” is required to sustain a public corruption case, nor did it establish any clear limits on federal criminal prosecution of political “horse-trading” among state and local officials. What would happen if the facts established the basic elements more clearly? Take, for example, an arrangement where “You vote for my funding bill and I vote for yours,” with a false denial of the deal contained in a mailing that more squarely is in furtherance of this arrangement? Untangling such questions will be left to future cases. The stakes are high because expansive federal investigations, as in O’Brien, can cast a chill over the State House, distracting and draining resources from legislators and their staffs for years.

William Fick, a founding partner of Fick & Marx LLP, was part of the trial team that defended Probation Commissioner Jack O’Brien.


The Supreme Judicial Court’s Decision in Beacon Residential v. R.P. Gives Survivors of Domestic Violence Their Day in Housing Court

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by Julia Devanthéry

Case Focus

The link between domestic abuse and housing instability is undeniable; survivors often face housing loss as a direct result of abuse or find themselves homeless after fleeing violence. In an all-too-common scenario, a survivor lives with her abuser, but is not on the lease because the abuser intentionally withholds housing stability as a method of abuse. In those cases, survivors may have to choose between their safety and their housing if they decide to separate from their abusers. Now, however, under the Supreme Judicial Court’s (“SJC”) recent decision in Beacon Residential v. R.P., survivors of domestic violence—including those who aren’t on the lease and are alleged to be “unauthorized occupants” by the landlord—are allowed to intervene as of right in summary process cases under Mass. R. Civ. P. 24 (a)(2) if they claim an interest relating to the apartment subject to the eviction proceedings. Beacon Residential Management, LP v. R.P., SJC-12265, slip op. (Sept. 14, 2017). As a result, thousands of survivors across the Commonwealth, formerly excluded from summary process cases, will have a right to their day in Housing Court.

In Beacon, the proposed intervener testified that she was a survivor of domestic violence who lived with her abuser, who was her husband, and their children in a federally subsidized apartment that was leased in the husband’s name. Although she lived at the apartment, she testified that her abusive partner prevented her from being added formally to the lease. The landlord’s witness testified that the landlord’s policy was to give an “add-on” application to all who inquired and that if the survivor in this case applied, she would have been added so long as she qualified and the husband approved.  However, the survivor was not given an application when she asked for one; rather, she was told only her husband could add her to the lease.  He, she testified, refused to do so as a means of controlling her. When the mother obtained a G.L c. 209A restraining order against her husband (which required him to leave the shared home and awarded custody of the two children to her), the landlord immediately initiated eviction proceedings against the family based on the mother’s “unauthorized” status at the unit.

The abuser failed to attend the summary process trial and was defaulted.  The mother attended the hearing and filed a motion under Mass. R. Civ. P. 24 to intervene both as of right and permissively along with a proposed answer and jury claim. She argued that she had a defense to the eviction under the Violence Against Women Act (“VAWA”), which prohibits evictions of qualified applicants for public housing based on the applicant being a victim of domestic violence,  and G.L. c. 239, §2A, which prohibits retaliation against survivors who obtain restraining orders. The landlord opposed her intervention.  The Housing Court judge denied her motion to intervene based on a finding that she would not be able to prevail on her defenses at trial. The mother then filed a new motion to intervene on behalf of her children, which was also denied.

The SJC’s decision in favor of the mother makes clear that at the intervention stage, a trial court’s inquiry should be limited to whether the proposed intervener has stated a plausible claim to the property, and that the judge should not reach the merits of the underlying claim until the trial. Beacon, slip op. at 7-11. In this case, the Court held that the proposed intervener stated a plausible claim to the apartment under VAWA and G.L. c. 239, §2A, and therefore she should have been allowed to intervene on behalf of herself and the children. Id. at 11-17. While the Court stressed that intervention does not guarantee success on the merits, it unambiguously held that the standard should be broadly applied to allow intervention when a litigant claims an interest in the property at issue in the eviction case. Id. at 17. In the wake of this groundbreaking decision, a greater number of survivors will now have access to justice in the Housing Court, and an opportunity to fight to save their homes.

 

Julia Devanthéry is a Lecturer on Law at the WilmerHale Legal Services Center of Harvard Law School.     This article is an update of her recent article, Early Lease Termination Under G.L. c. 186, § 24: An Essential Escape Route for Tenants Who Are Facing Domestic Violence, Sexual Assault, or Stalking,  61 Boston Bar Journal (Summer 2017).  In the case discussed here, Ms. Devanthéry filed an amicus brief with the Supreme Judicial Court in support of the survivor.


Cantell v. Commissioner of Correction, Class Actions and the Mootness Doctrine

lyonsby Jeff Goldman

Case Focus

In Cantell v. Commissioner of Correction, 475 Mass. 745 (2016), four inmates appealed from the denial of their petition for class certification to seek a class-wide injunction limiting the use of “special management units” or “SMUs” in state prisons.  The Superior Court had denied a motion for class certification, and the Appeals Court had dismissed the plaintiffs’ appeal from the denial as moot because, “when the plaintiffs’ appeal was before that court, it was uncontested that none of the named plaintiffs was still confined in an SMU.”  475 Mass. at 752-53.

The SJC could have fixed the Appeals Court’s mootness error by relying on the established principle that on an appeal from the denial of class certification, the court determines mootness based on whether the claim was moot while before the trial court, regardless of whether the class representative’s claims became moot while the case was on appeal.  U.S. Parole Commission v. Geraghty, 445 U.S. 388, 404 (1980); see also Gonzales v. Commissioner of Correction, 407 Mass. 448, 452-53 (1990) (holding that where individual claims become moot prior to class certification motion, class claims are dismissed); 1 William B. Rubenstein, Newberg on Class Actions § 2:10 (5th ed. 2011).  In other words, as the U.S. Supreme Court held in a 1980 decision also involving claims by prisoners, the determination of mootness on appeal from a denial of class certification “relat[es] back” to the plaintiffs’ situation as it existed before the trial court.  Geraghty, 445 U.S. at 404.  Had the SJC applied Geraghty in Cantell, the outcome would have been the same but the Court’s decision much easier:  because “[a]t the time of the motion judge’s decision [on the motion for class certification], one of the named plaintiffs . . . remained in an SMU,” there was therefore no mootness problem.  Id.

However, none of the briefs in Cantell cited Geraghty, and the SJC resolved the mootness issue by relying entirely on Wolf v. Commissioner of Public Welfare, 367 Mass. 293, 297–298 (1975).  Discussing Wolf, the SJC reasoned that the case was:

not moot because the plaintiffs brought this case as a putative class action, and the class action allegations contained in the amended complaint remain operative until a judge has considered and rejected them on their merits.  See Wolf [] (adopting rule followed by number of Federal courts “that a class action is not mooted by the settlement or termination of the named plaintiff’s individual claim”).  This is particularly true where, as the plaintiffs argue is the case here, it is within the defendants’ power voluntarily to cease the allegedly wrongful conduct with respect to any named plaintiff by unilaterally deciding to release him from an SMU.  “If the underlying controversy continues, a court will not allow a defendant’s voluntary cessation of his allegedly wrongful conduct with respect to named plaintiffs to moot the case for the entire plaintiff class.”  [Wolf] at 299 []. The statement applies to the present case: the alleged wrongs set out in the amended complaint continue to affect the putative class of individuals who remain confined to SMUs.  In these circumstances, the plaintiffs’ appeal is not subject to dismissal on mootness grounds.

This formulation—“that a class action is not mooted by the settlement or termination of the named plaintiff’s individual claim”—is imprecise and will likely need to be revisited.  Although it works in the circumstances of Cantell, it cannot be said as a general matter “‘that a class action is not mooted by the settlement or termination of the named plaintiff’s individual claim.’”  In typical cases, and where no other mootness exception applies, if all individual claims become moot before the filing of a class certification motion, the entire case should be dismissed.  See, e.g., Gonzalez, 407 Mass. at 450; Cruz v. Farquharson, 252 F.3d 530, 533 (1st Cir. 2001) (“Despite the fact that a case is brought as a putative class action, it ordinarily must be dismissed as moot if no decision on class certification has occurred by the time that the individual claims of all named plaintiffs have been fully resolved.”).  Accordingly, it was probably a mistake for the SJC to state that “class action allegations . . . remain operative until a judge has considered and rejected them on their merits.”  Whether this is dicta or not, an attorney reasonably could use these statements to support an argument that the mootness of a class representative’s personal claims never matters under Massachusetts law, even if the personal claims were moot before filing a motion for class certification motion, or even that there is never a mootness defense in a class action.

This imprecise language notwithstanding, lower courts should not take Cantell as foreshadowing the SJC’s abrogation of mootness doctrine in class actions.  The SJC regularly invokes the mootness doctrine, particularly in cases of constitutional dimension.  Further, the SJC recognized in at least two cases after Wolf that the mootness doctrine applies to class claims.  In Flint v. Commissioner of Public Works, 412 Mass. 416, 419-20 (1992), the SJC rejected on mootness grounds class action claims for declaratory relief.  And in Gonzales, the SJC reversed the trial court’s certification of a class of prisoners (and directed that the case be dismissed unless resuscitated within thirty days by a new plaintiff) because the two named plaintiffs were no longer incarcerated at the time of the class certification motion.

Finally, Wolf does not actually support the parenthetical that the SJC used to summarize it in Cantell.  Wolf held merely that the named plaintiffs’ claims were not necessarily moot under the common law because they were “capable of repetition yet evading review.”  In fact, Wolf was a prototypical “capable of repetition yet evading review” case:  the claim was that the plaintiff and other members of the class were not receiving replacement public assistance checks within the required four-day period, but rather some days later.  It would have been virtually impossible for any claimant file a lawsuit and achieve class certification while any single check was outstanding.  (The “capable of repetition yet evading review” exception might also have applied in Cantell, although it was not necessary for the SJC to reach the question.)

In short, in its class action-mootness jurisprudence, as in most of its other opinions about justiciability, the SJC has taken a flexible approach, deciding some technically-expired issues on their merits because there are sound, common-law reasons to do so, while refusing to adjudicate stale issues when no traditional exception to mootness doctrine applies.  When the next opportunity arises for the SJC to apply the mootness doctrine in a class action, the Court should reiterate its past, sound approach and reject any attempt to read Cantell as requiring a categorical approach to mootness in class cases.

Jeff Goldman is of counsel at Morgan, Lewis & Bockius, LLP.  His practice centers on securities litigation and regulatory enforcement defense.


Ferri v. Powell-Ferri: Expansion of Common Law “Trust Decanting” in Massachusetts

lyonsby Marc J. Bloostein

Case Focus

Trust decanting is a method by which the trustee of an irrevocable trust distributes trust assets into a new trust with revised terms. In Ferri v. Powell-Ferri, 476 Mass. 651 (2017), the Supreme Judicial Court (SJC) held that trust property in a Massachusetts irrevocable trust may be decanted into a new trust even if doing so would remove the trust assets from the beneficiary’s marital estate during his divorce. The SJC left open, however, whether decanting solely to deprive the beneficiary’s spouse of marital assets would be invalid as contrary to public policy. Id. at 664 (Gants, C.J., concurring). Although Ferri provides needed guidance to trustees on decanting, it leaves some unanswered questions that should be addressed by the legislature.

Common law decanting pursuant to language in an irrevocable trust was first recognized in Massachusetts in Morse v. Kraft, 466 Mass. 92 (2013). In Morse, the Court interpreted the trust instrument to authorize the trustees to distribute the trust assets to a new trust. Morse, 466 Mass. at 96-98. The key factors that allowed the trustees to decant assets into a new trust were: (1) the trustees’ unlimited discretion over distributions; (2) the trustees’ power to apply property for the benefit of a beneficiary; and (3) the broad grant of powers to the trustees. Id. at 98-99. To determine the settlors’ intent with respect to decanting, the SJC considered the post-execution affidavits of the settlor, draftsperson and disinterested trustee. Id. at 97. The Court declined to adopt a rule that any trustee with broad distribution power has the inherent power to decant, and instead opted for a case-by-case determination taking into account the terms of the trust instrument. See Ferri, 476 Mass. at 658 (citing Morse, 466 Mass. at 97).

In Ferri, the irrevocable trust at issue had been established for the benefit of Paul Ferri, Jr., the settlor’s son. Beginning at age 35, Paul could withdraw an increasing portion of the trust property; at the time of the decanting he could withdraw about 75% of the principal. Shortly after Paul’s wife filed for divorce in Connecticut, the trustees effectively eliminated Paul’s power to withdraw by decanting the assets into a new trust (without informing Paul or obtaining his consent). There is no question that the decanting was an effort by the trustees to remove the trust property from Paul’s marital estate. Id. at 653.

The Connecticut Supreme Court certified three questions to the SJC, including whether the trust instrument, which was governed by Massachusetts law, authorized the trustees to decant. 476 Mass. at 652. Unlike in Morse, the trustees were not waiting for court approval—they had already decanted (indeed, they had done so even before the SJC decided Morse).

The SJC  answered that the Ferri trust instrument allowed decanting. The trust instrument gave the trustees broad discretionary distribution powers “virtually identical to provisions in the Morse trust,” along with discretion even more expansive than that afforded in the Morse instrument. Consequently, the settlor’s intention to authorize decanting “would seem to follow necessarily.” Id. at 657-58. In particular, the SJC found that the trustees’ explicit authority to “segregate irrevocably [net income and principal] for later payment to” the beneficiary “indicate[d] the settlor’s intention to allow decanting.” Id. at 658. Thus, the SJC held that decanting was proper if done in the beneficiary’s best interest, unless and until all the trust assets had been withdrawn by the beneficiary. Id. at 662.

The Court rejected Powell-Ferri’s counter-argument that decanting was not allowed because it would render the beneficiary’s power to withdraw nugatory. First, all trust provisions must be read consistently, and if “withdrawable” property could not be decanted, then there would be no point to the trust after the age of full vesting with the beneficiary. Id. at 660. Second, because the trustees hold full legal title to all trust property, that property remains subject to their full stewardship and power, including the authority to decant. Id. at 660-61. Third, the two methods of distributing trust property—the beneficiary’s withdrawal power and the trustee’s power of distribution—are not mutually exclusive and decanting is consistent with the trustees’ power to irrevocably sequester for “’[s]o long as [the beneficiary] is living.’” Id. at 661. The SJC also found that the settlor’s affidavit could evidence the settlor’s intent if the settlor’s intent were otherwise ambiguous at the time he created the trust, and so long as the affidavit did not contradict or attempt to vary the terms of the trust. Id. at 663.

In short, although Ferri, like Morse, affirmed the importance of considering the trust instrument as a whole in determining the settlor’s intent regarding decanting, the Ferri Court nevertheless favored the trustees’ decanting power despite the trusts’ potentially conflicting withdrawal right provisions. In so deciding, the SJC expressly did not consider whether, in some circumstances, the existence of a withdrawal power might override trust provisions that allow decanting as a matter of public policy, as the Connecticut trial court had decided. See Ferri v. Powell-Ferri (SC 19317), 2013 Conn. Super. LEXIS 1938. As Chief Justice Gants pointed out in his concurrence, Ferri did not answer “whether Massachusetts law will permit trustees in Massachusetts to create a new spendthrift trust and decant to it all the assets from an existing non-spendthrift trust where the sole purpose of the transfer is to remove the trust’s assets form the marital assets that might be distributed to the beneficiary’s spouse in a divorce action.” 476 Mass. at 664 (Gants, C.J., concurring) (noting the Massachusetts prohibition against trusts that violate public policy in the Massachusetts Uniform Trust Code, G.L. c. 203E, § 404).

Notably, the Ferri Court also did not consider the ramifications of the provision of the Massachusetts Uniform Trust Code which provides that the holder of a non-lapsing withdrawal power under the terms of a trust (whether revocable or irrevocable) is treated as if he were the settlor of a revocable trust with respect to the property subject to the power, and the rights of the other beneficiaries are subject to his control and the duties of the trustee are owed exclusively to him. G.L. c. 203E, § 603. Nor did Ferri articulate any fiduciary limits to decanting, although there must be limits. See, e.g., Old Colony Trust Co. v. Silliman, 352 Mass. 6, 10 (1967) (“[E]ven very broad discretionary powers are to be exercised in accordance with fiduciary standards and with reasonable regard for usual fiduciary principles.”). Ferri raised additional questions by suggesting—without explaining—that a “duty to decant” may exist. 476 Mass. at 661.

Consequently, Ferri leaves trustees to ponder the limits of their power to decant, whether they might have a duty to decant and, if so, under what circumstances. The Massachusetts legislature should adopt a decanting statute to provide a path for trustees to decant with clear limits and safeguards.

Marc J. Bloostein is a partner in Ropes & Gray LLP’s private client group and focuses on estate planning and fiduciary law. He was co-chair of the BBA’s Trusts and Estates Section from 2011 to 2013, he played a key role in the 2012 enactment of the Massachusetts Uniform Trust Code, and he teaches a course on estate planning at Harvard Law School.