SJC “Likes” Aspects of Facebook’s Work Product Argument

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by Bret Cohen, Jillian Hart, and Matthew Brown

Case Focus

The Supreme Judicial Court (“SJC”) recently issued its anticipated decision in Attorney General v. Facebook, Inc., 487 Mass. 109 (2021), addressing the extent to which the work product doctrine or the attorney-client privilege protects internal investigations from disclosure.

The decision affirmed in part and reversed in part a Superior Court decision (Attorney General v. Facebook, Inc., 2020 WL 742136 (Jan. 17, 2020) (Davis, J.)) that held that the work product doctrine did not apply to documents the Massachusetts Attorney General (“AG”) sought from social media giant Facebook, Inc.’s (“Facebook”) internal investigation into a data privacy breach.

The SJC’s decision provides an important reminder for companies to tread carefully and always consult with counsel before launching an internal investigation to understand what may be discoverable in future litigation. 

Facts and Background

After a widely publicized data breach incident involving one of its third-party applications (“apps”), Facebook undertook an internal investigation, led by outside counsel, to determine the extent to which the platform’s apps misused user data and to evaluate associated liability.  Facebook intended for the app developer investigation (“ADI”) to identify any other apps that misused user data and to assess Facebook’s potential liability from the incident.  Both in-house and outside counsel “designed, managed, and overs[aw]” the ADI and “devised and tailored the ADI’s methods, protocols, and strategies to address the specific risks posed by these legal challenges.”  Outside counsel also retained third-party technical experts and investigators to assist in the ADI.  

As a result of the data breach incident, the AG opened its own investigation into whether Facebook misrepresented the extent to which it protected or misused user data.  In accordance with its authority under M.G. L. c. 93A, the AG issued a series of civil investigative demands to Facebook.  Facebook complied in part, but refused on privilege grounds to honor six of the AG’s requests.  The first five requests sought information related to the identities of certain apps and app developers that Facebook identified and reviewed during its ADI.  The sixth request, in contrast, sought Facebook’s internal communications and correspondence regarding certain apps.

The AG filed a petition to compel compliance with its demands in the Superior Court’s Business Litigation Session.  The Superior Court sided with the AG, holding that the work product doctrine did not cover Facebook’s ADI and, even if it did, the AG made the required showing of a substantial need for the information that it could not obtain without undue hardship.  As to Facebook’s asserted attorney-client privilege, the Superior Court held that the privilege did not cover the information sought by the AG’s first five requests, and ordered the production of responsive documents.  Regarding the sixth request, however, the Superior Court held that it did seek the disclosure of potentially privileged material, and accordingly ordered Facebook to provide the AG with a detailed privilege log.

Facebook appealed and the SJC heard the case on direct appellate review.

Decision

The SJC affirmed in part and reversed in part the Superior Court’s decision. 

Work Product Doctrine:  Addressing the first five requests, the SJC held that the work product doctrine did apply, because Facebook conducted the ADI in anticipation of litigation.  The Court, however, carefully distinguished fact work product from opinion work product.  It held that as to documents constituting fact work product, the AG demonstrated substantial need and undue hardship requiring production.  At the same time, the SJC held that remand was necessary to determine whether any of the responsive documents that Facebook withheld constituted opinion work product.  The SJC held that, if any of the withheld documents constituted opinion work product, such documents are only “discoverable, if at all, in rare or extremely unusual circumstances.”  Facebook, 487 Mass. at 128 (internal quotations omitted).

Attorney Client Privilege: Addressing the sixth request, the SJC agreed with the Superior Court that to the extent Facebook objected on the basis of attorney-client privilege, Facebook must produce a detailed privilege log so that the AG could assess (and potentially contest) the privilege assertions.  The SJC reasoned that the request sought information dating back years before the ADI began, as well as communications that did not involve attorneys, both of which might fall outside the scope of the attorney-client privilege.  The SJC held that the attorney-client privilege did not cover the first five requests as they merely sought underlying facts rather than attorney-client communications.  In doing so, the SJC emphasized that “the attorney-client privilege only protects communications between attorneys and a client about factual information, not the facts themselves,” noting that “this distinction is important and somewhat collapsed by the advocacy in the instant case.” Facebook, 487 Mass. at 123.

Key Issues

In its decision, the SJC identified and discussed three important issues pertaining to employers contemplating or conducting internal investigations.

First, the SJC considered whether the work product doctrine applies to an internal investigation.  In the instant case, the SJC held that the work product doctrine applied to the ADI because: (1) documents were prepared; (2) by or for Facebook for its agents; and (3) in anticipation of litigation.  The SJC specifically found that, although Facebook had an ongoing compliance program, the ADI was “meaningfully distinct” from the compliance program, with its own distinct methodology focused on past violations, rather than improving ongoing operations in the normal course of business.  In short, the mere fact that the ADI also served Facebook’s business purposes did not mean that the work product doctrine was inapplicable.

Second, the SJC discussed whether the information sought by the AG constituted fact work product or opinion work product.  As the SJC stated, “the line between fact work product and opinion work product is not always clear.”  In this regard, the SJC noted that although Facebook made multiple public statements about the ADI and the investigatory process (which Facebook could not then claim to constitute opinion work product), any “undisclosed strategic decision-making by counsel, including the assessment of legal risk or liability [] revealed by the factual analysis” might qualify as opinion work product.    

Third, the SJC considered whether, in relation to fact work product, the party seeking disclosure established a substantial need for and undue hardship from denied access to the work product sufficient to warrant its discovery.  The SJC held that the AG met its burden by demonstrating both.  With respect to the AG’s substantial need, the SJC found that the app-related information sought was central to the statutorily authorized c. 93A investigation.  Likewise, with respect to the AG’s asserted undue hardship, the SJC distinguished the ADI from a routine internal investigation that “involved simply interviewing key employees and other witnesses or reviewing a manageable number of documents, tasks that can be easily replicated by third parties or government investigators.”  Here, the ADI was a years-long investigation involving a vast quantity of information and included analysis of millions of apps by hundreds of outside experts. Therefore, the SJC ruled that the enormous costs and time required to duplicate the ADI was sufficient to demonstrate undue hardship.

Implications

Although this area of law is far from settled, the Facebook decision provides helpful guidance for companies contemplating and conducting internal investigations.  Key guideposts include:

  • Engage counsel in advance of an internal investigation to discuss the objective and parameters of such investigation.
  • Any outside experts involved in the investigation should be retained by outside counsel and should be bound by confidentiality agreements.
  • Review what records and files the company develops in the regular course of business and be mindful that these records may be discoverable if not created in anticipation of litigation.

During the internal investigation, consider carefully what information and documents may be characterized as fact (versus opinion) work product and, therefore, may be discoverable.  As the SJC cautions, the line between the two is “not always clear” and, consequently, aspects of internal investigations, especially fact work product, may be discoverable.

Bret Cohen chairs the Labor & Employment and Trade Secrets & Employee Mobility Practice Groups at Nelson Mullins Riley & Scarborough LLP. His practice covers a wide range of areas, including the enforcement of non-compete and employment agreements, complex commercial and trade secrets litigation, and advice and counsel on termination and transition of high-level executives.  

Jillian Hart is an associate in the Labor & Employment Group at Nelson Mullins Riley & Scarborough LLP. Jillian focuses her practice on employment and trade secrets litigation and also advises clients on a variety of employment matters, including restrictive covenants and wage and hour issues.   

Matthew Brown is an associate in the Labor & Employment Group at Nelson Mullins Riley & Scarborough LLP. Matthew focuses his practice on trade secrets and non-compete litigation and advice and counsel on a variety of issues, including worker classification and employment agreements. 


Confronting an Accuser via Zoom: The SJC Considers the Constitutionality of Virtual Evidentiary Hearings

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by Brett D. Lovins 

Case Focus

In Vazquez Diaz v. Commonwealth, 487 Mass. 336 (2021), the Supreme Judicial Court confronted the novel question of whether, during the COVID-19 pandemic, a virtual evidentiary suppression hearing violates a defendant’s constitutional rights. The Court concluded that such a virtual hearing during the pandemic is not a per se violation of a defendant’s right to be present, to confrontation, to a public hearing, or to effective assistance of counsel, and instead determined that videoconferencing technology can create a close approximation of the courtroom setting. However, under the specific facts of the case, the Court also held that the motion judge abused her discretion in denying the defendant’s motion to continue where he waived his speedy trial rights and where a delay would not substantially harm the government’s case, especially since there were no civilian victims or witnesses.

Background

John W. Vazquez Diaz, charged with drug trafficking in the Superior Court, sought an evidentiary hearing on his suppression motion. After the onset of the COVID-19 pandemic, the judge ordered the hearing to proceed via Zoom. The defendant objected, waived his speedy trial rights, and requested that the case be continued until an in-court proceeding could be held. The judge denied the request, and the defendant filed a direct appeal pursuant to G. L. c. 211, § 3. The single justice reserved and reported the matter to the full Court.

The Opinion

In the opinion, authored by Justice Cypher, the Court addressed—and rejected—the defendant’s State and Federal constitutional arguments.

As to the defendant’s right to be present during a critical stage of the proceedings, derived from article 12 of the Massachusetts Declaration of Rights and the Sixth Amendment to the United States Constitution, the Court concluded that under certain circumstances, a suppression hearing could be held by videoconference so long as the technology provided adequate safeguards. The Court reasoned that Zoom could “approximate a live physical hearing” and “effectively safeguard the defendant’s right to be present” by permitting him to listen to evidence, adequately observe the testifying witnesses, and privately consult with counsel using virtual, private Zoom “breakout rooms.” Id. at 342. Nevertheless, the Court determined that under the particular circumstances of the case and in light of the “exceptional circumstances” of the pandemic, the judge abused her discretion by denying the defendant’s motion to continue. Id. at 344 & n.13. The Court opined, however, that the government’s “significant” interest in protecting public health “combined with its interest in the timely disposition of a case, would, in many instances, outweigh the defendant’s interest in an in-person hearing.” Id. at 343.

As to the defendant’s argument that a virtual hearing deprived him of his right to confrontation, the Court joined a minority of states to hold for the first time that the confrontation right extends to suppression hearings. But it concluded that, under art. 12, a virtual evidentiary hearing held during the pandemic is not a per se violation of that right, opining that videoconferencing (when functioning properly) closely approximates the courtroom because two-way video transmission permits live cross-examination and the defendant and the judge are virtually present onscreen and can see all the participants. As to the Sixth Amendment, the Court explained that the right may be satisfied without physical, face-to-face confrontation when necessary to further an important public policy and where the reliability of the testimony can be assured. It determined that protecting public health during the pandemic constituted an important public policy and two-way videoconferencing technology was sufficiently reliable, but ultimately demurred on whether a virtual hearing was necessary in light of its holding regarding the continuance motion.

The Court also rejected the defendant’s argument that a virtual hearing violated his Sixth Amendment right to a public hearing, concluding that a videoconference in which the public could join by telephone or Zoom was not a “constitutional closure” because the virtual nature of the hearing adjusted “only the forum” and “not the prospective audience.” Id. at 353. It reasoned that the limits on access were “no broader than necessary given the severity of the pandemic” and that the court provided virtual alternative access for those with the requisite technology. Id. at 354.

Finally, the Court rejected the defendant’s concerns about his right to the effective assistance of counsel under art. 12 and the Sixth Amendment, concluding that virtual hearings with virtual private breakout rooms are not a deprivation of that right. The Court noted that the defendant can interrupt the proceeding to confer with counsel, but also advised judges to confirm that the technology is functioning properly and encouraged judges to check with counsel periodically to ask whether their clients wished to confer.

The Concurrence

Justice Kafker authored a concurring opinion. Although he agreed with the Court’s conclusion that in this case the judge abused her discretion by denying the motion to continue, he wrote separately to emphasize the potential problems of virtual hearings and to implore judges to proceed cautiously. He noted that virtual hearings “may alter our evaluation of demeanor evidence, diminish the solemnity of the legal process, and affect our ability to use emotional intelligence, thereby subtly influencing our assessment of other participants.” Id. at 357 (Kafker, J., concurring). For example, he noted that body language is concealed, subpar lighting obscures facial expressions, eye contact is impossible, small images and diminished sound dilute the potential emotional impact, and even a participant’s Zoom background may trigger subconscious biases. He also noted the potential for technological problems, user errors, and accessibility issues. “Importantly,” he wrote, “access to reliable Internet is often dependent on income, socioeconomic background, and educational attainment,” and “[l]ack of Internet access is more common among racial minorities.” Id. at 366 n.16. Moreover, he expressed concern about the defendant’s confrontation rights, cautioning that “‘there is something deep in human nature that regards face-to-face confrontation between accused and accuser’ as essential to fairness, a concept that has ‘persisted over the centuries because there is much truth to it.’” Id. at 364–65 (quoting Coy v. Iowa, 487 U.S. 1012, 1017, 1019 (1988)).

Implications

In some ways, the Vazquez Diaz decision is narrow and case-specific: the motion judge abused her discretion in denying the defendant’s motion to continue during a pandemic where the defendant had waived his right to a speedy trial and a delay would not substantially harm the government’s case. But the holding leaves open the possibility that under different circumstances, a judge may proceed virtually over the defendant’s objection. This might include situations where there are costs to delay, including the prosecution’s ability to prove its case because evidence may disappear altogether or degrade as memories fade.

While the Court’s decision regarding the requested continuance may be seen as narrow, the Court did not limit its discussion to that issue. Rather, it broadened its focus to reach the significant issue of the constitutionality of virtual evidentiary hearings and found them permissible, despite the concerns articulated by Justice Kafker. If virtual evidentiary hearings continue to be used after the current pandemic when no longer necessary to protect public health, these constitutional issues will surely be the basis of future litigation.

In the meantime, the decision puts the onus on defense attorneys to vigilantly protect their clients’ rights. That might mean requesting a continuance rather than proceeding to a Zoom-based evidentiary hearing when it is in their clients’ best interests to do so. And when proceeding virtually, advocates must ensure their clients connect from a neutral location with stable internet, assume responsibility for requesting breakout rooms, object if circumstances impede the judge’s evaluation of a witness (e.g., poor lighting or distractions), and confirm that the judge monitors the hearing for technological problems.

The Court’s holding that the right to confrontation extends to evidentiary suppression hearings is a significant victory for criminal defendants. It is now up to trial courts and practitioners to ensure that confrontation—so essential to fairness—is not diluted in this new virtual world.

Brett D. Lovins is a criminal defense attorney at Lovins & Metcalf. He represents individuals accused of wrongdoing from the initial stages of investigation through appeals.


Enforceability of Online Contracts under Massachusetts Law: Kauders v. Uber Technologies, Inc.

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by Kevin J. Conroy 

Case Focus

Earlier this year, in Kauders v. Uber Technologies, Inc., 486 Mass. 557 (2021), the Supreme Judicial Court provided further clarity on an issue likely to impact every resident of the Commonwealth and the businesses they interact with online – namely, the enforceability of agreements created through website and mobile apps, including the terms and conditions that purport to govern the use of those businesses’ online platforms.

The Test for Enforceability

In Kauders, the SJC evaluated the interface by which Uber had attempted to secure its users’ assent to its terms and conditions, including a mandatory arbitration clause. Recognizing that “[t]he touchscreens of Internet contract law must reflect the touchstones of regular contract law,” the SJC held that to create an enforceable online contract under Massachusetts law, there must be both reasonable notice of the terms and a reasonable manifestation of assent to those terms.” Id. at 572. Kauders’ two-part test is consistent with the approach taken by appellate courts from around the country as well as in a 2013 decision from the Massachusetts Appeals Court. Id. (citing Ajemian v. Yahoo!, Inc., 83 Mass. App. Ct. 565, 574-75 (2013) and Conroy & Shope, Look Before You Click: The Enforceability of Website and Smartphone App Terms and Conditions, 63 Boston Bar J. 23, 23 (Spring 2019)). See also Emmanuel v. Handy Technologies, Inc., No. 20-1378 (1st Cir. Mar. 22, 2021) (applying Kauders to find that plaintiff had formed an arbitration agreement with the defendant).

Uber had asserted that Kauders must pursue his claim in arbitration because he accepted Uber’s terms of use. According to Uber, Kauders had accepted those terms by proceeding to register an account after viewing a screen in Uber’s app with the language “By creating an Uber account, you agree to the Terms & Conditions and Privacy Policy” with embedded hyperlinks to the actual text of the terms. The SJC concluded that Uber failed to satisfy both the reasonable notice and reasonable manifestation of assent prongs of the contract analysis. By identifying several deficiencies in Uber’s interface, the opinion provides guidance on design choices that can contribute to enforceable online contracts in future cases.

Reasonable Notice of Terms

With respect to reasonable notice, the SJC clarified that actual notice will generally be found if the user has been presented and viewed the terms, or if the user is required to interact with the terms somehow before proceeding to use the app or website. Thus, interfaces that require the user to scroll through the entire text of the terms before being allowed to progress should satisfy the reasonable notice prong of the test under Kauders. Absent actual notice, the SJC indicated that clarity and simplicity of the presentation of the terms should be the focus. If the terms are not presented directly on the screen, the full text should at least be available (if not required to be accessed) by following a clear link with minimal intermediate steps.

The SJC explained that, ultimately, reasonable notice involves a determination of whether “the offeror [has] reasonably notif[ied] the user that there are terms to which the user will be bound and [has] given the user the opportunity to review those terms.” Id. at 573. The Court noted that Uber’s notice, in contrast, was not reasonable as the terms could be reached only by following two successive links which the user was not required to access to complete the registration process. The SJC also identified several other features of Uber’s interface that detracted from the clarity of the notice of the terms. For example, the nature of the transaction – registering for an account to enable future ride services – might not suggest to a reasonable user that the user is entering into a contractual relationship governed by the extensive indemnification and waiver provisions included in Uber’s terms. The SJC also observed that the language informing the user of the contractual consequences of proceeding with the registration was displayed less prominently than other elements.  That language appeared at the bottom of the screen, whereas the elements the user was required to interact with to proceed (e.g., entering payment information) drew the user’s attention away to the top of the screen.

Reasonable Manifestation of Assent

With respect to reasonable manifestation of assent, the SJC declared a clear preference for “clickwrap” interfaces in which the user is required to indicate express and affirmative assent to the terms by checking a box or clicking a button that reads “I agree” or its equivalent. The Court likened the affirmative act of clicking such a box or button of assent to “the solemnity of physically signing a written contract” and suggested that this would help alert the user to the contractual significance of their action. Where the interface does not require the user to expressly agree – as in the Uber interface at issue in Kauders – assent may still be inferred from the actions the user takes. However, the SJC cautioned that in such cases the courts would need to engage in careful consideration of the totality of the circumstances, and “it will be difficult for the offeror to carry its burden to show that the user assented to the terms.” Id. at 575.

The Court admonished that Uber’s interface obscured the connection between the user’s action and assent to Uber’s terms because the app only required the user to click a button labelled “DONE” (rather than “I agree” or “Create Account”) on the screen that provided notice of Uber’s terms. Id. at 577. To underscore that “uncertainty and confusion in this regard could have simply been avoided by requiring the terms and conditions to be reviewed and a user to agree,” the SJC compared Uber’s rider registration interface (at issue in the case) with its separate, driver registration interface. The latter required prospective drivers to confirm at least twice that they had reviewed and accepted the terms of the agreement by clicking a button expressly stating “YES, I AGREE.” In contrast, the SJC observed that the Uber rider interface at issue “enables, if not encourages, users to ignore the terms and condition.” Id. at 577.

The Substance of the Terms

The SJC also expressed skepticism about various aspects of Uber’s terms, including a provision that purported to permit the company to make unilateral changes to the terms without notice (placing “the burden on the user to frequently check to see if any changes have been made”). The Court likewise expressed doubt about a provision that “totally extinguishe[d] any possible remedy” against the company. While the Court did not reach the question of the enforceability of such terms given its determination that no contract had been made, it included the severe consequence of the terms in its analysis of whether reasonable notice was provided.

Conclusion

Kauders confirms that Massachusetts courts will closely scrutinize the manner in which websites and apps communicate, and attempt to secure users’ agreement to, the terms and conditions that purport to govern their use, particularly if there is any indication that the existence or import of the terms are minimized or obscured. Anything less than an interface that is designed simply and clearly to require (1) that the terms be viewed actively by the user (through direct display on the screen or a direct hyperlink to the full terms) and (2) that there be express and unambiguous assent (through check-the-box style interfaces or “I Agree” buttons) is likely to invite avoidable court challenges.

Kevin J. Conroy is a litigation attorney at Nystrom, Beckman & Paris in Boston.  Kevin’s practice focuses on complex disputes including contract claims, insurance coverage claims, and other business disputes.


Who Can Bring A Zoning Appeal? SJC Reaffirms the Test for Standing in Murchison v. Sherborn ZBA

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by Adam Sherwin

Case Focus

The Supreme Judicial Court issued its decision in Murchison v. Sherborn Zoning Board of Appeals, 485 Mass. 209 (2020), last year, concerning the test of standing for a G.L. c. 40A, § 17, zoning appeal. This decision, which came after an application for Further Appellate Review (“FAR”) of a published Appeals Court decision, was closely followed by the Massachusetts real estate community. The prior Appeals Court decision–which could be seen as watering down the test for standing–left many real estate professionals concerned that the floodgates would open for zoning appeals.

Murchison is one of the few, if only, times that the Supreme Judicial Court (“SJC”) issued an order affirming the trial court decision the day after oral argument, with a written decision coming some months later. Such a move underscores the high stakes of this decision.

The SJC’s decision in Murchison reaffirms an important principle for establishing standing to pursue a zoning appeal: One cannot appeal simply because they claim a zoning violation has occurred. Rather, a G.L. c. 40A, § 17, appeal requires such a claimant to show particularized harm from the zoning violation.

Background on Chapter 40A

Chapter 40A allows any person “aggrieved” by a zoning decision to appeal the matter through a civil action, which most commonly is filed in Superior Court or Land Court (but can also be filed in Housing Court or District Court).

Judicial review under chapter 40A is a “hybrid” between a trial and an appellate case. Like a trial matter, such a case requires a court to find facts de novo, without deference to the local board hearing. For this reason, it is common in a G.L. c. 40A, § 17, case to have witnesses, exhibits, and other evidence that was never presented at the initial zoning hearing. Following such factfinding, however, a court must give deference to the zoning board’s decision, and uphold it unless the decision is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.

The text of G.L. c. 40A, § 17, expressly addresses standing by stating that only a “party aggrieved” from a zoning decision may pursue an appeal. G.L. c. 40A, § 10, further creates a presumption of standing for any abutters located within three hundred feet of the property line of the petitioner seeking the zoning relief.

This presumption, however, can be rebutted by a defendant through a showing that (1) the alleged harm is not a protected interest under the zoning ordinance or (2) credible affirmative evidence exists to refute the presumption. If standing is rebutted, the plaintiff pursuing the zoning appeal bears the burden of showing aggrievement, with the party who received the zoning relief bearing the burden of showing that is entitled to such approval.

G.L. c. 40A, § 17, is largely silent as to what specific harms may constitute aggrievement. The caselaw is clear that this term is not meant to be narrowly construed, and intended to a flexible standard. Aggrievement, however, must be based on a private interest, not one affecting the public as a whole. Common grounds for standing in G.L. c. 40A, § 17, appeals include increased density, loss of privacy, and traffic concerns.

Case Background

The plaintiffs in Murchison, homeowners in Sherborn, challenged a decision of the local zoning officer to grant a foundation permit for a single-family residential home across the street from their property. They argued that this home lacked the necessary minimum lot width for such a permit.

The plaintiffs filed a claim with the Town of Sherborn’s Zoning Board of Appeals, seeking review of the zoning officer’s decision–a required step for anyone challenging a local zoning decision. After the ZBA upheld the zoning officer’s decision, the plaintiffs filed an appeal in the Land Court pursuant to G.L. c. 40A, § 17.

Because the plaintiffs were abutters to their neighbor’s property, they enjoyed the rebuttable presumption of standing under G.L. c. 40A, § 11. Following a trial, however, the Land Court ruled that the defendants had rebutted this presumption, largely through expert testimony, and that the plaintiffs were not aggrieved by the ZBA’s decision.

On the merits, Land Court found that the alleged harm to the plaintiffs was de minimis. A key factor for this decision was that the plaintiffs’ home was across the street from proposed development, which rendered the plaintiffs’ concerns about lighting, traffic, and noise applicable to the community as a whole, rather than particularly to themselves. The plaintiffs appealed.

Appeals Court Decision

The Appeals Court, in a published decision, reversed the Land Court decision. 96 Mass. App. Ct. 158 (2019). The Appeals Court noted that the minimum lot width requirement was a zoning ordinance aimed at preventing overcrowding. Because of this, the Appeals Court reasoned, any increase in density was, on its own, enough to prove aggrievement.

The Appeals Court reasoned that determining one’s “harm” for a G.L. c. 40A, § 17, appeal comes directly from the applicable zoning ordinance:

There is no platonic ideal of overcrowding against which the plaintiffs’ claim is to be measured. Although the distance between the houses might not amount to overcrowding in an urban area, absent some constitutional concern, which the defendants do not argue exists in this case, cities and towns are free to make legislative judgments about what level of density constitutes harm in various zoning districts and to codify those judgments in bylaws. It does not matter whether we, or a trial judge, or the defendants, or their counsel, would consider the district “overcrowded.” What matters is what the town has determined.

The Appeals Court rejected the argument that the Murchison plaintiffs needed to do anything further to show particularized harm. This was in contrast to the Land Court decision and prior caselaw, which required such plaintiffs to do more than simply note that a zoning violation occurred. The Supreme Judicial Court then granted an application for FAR.

SJC Decision

The SJC reversed the Appeals Court and upheld the Land Court’s decision that the plaintiffs lacked standing for a zoning appeal.

In doing, the SJC reaffirmed a central tenet for determining one’s standing for a G.L. c. 40A, § 17, appeal: “establishing standing requires a plaintiff to do more than merely allege a zoning violation.” 485 Mass. at 214.

As the SJC noted, the Murchison plaintiffs needed to demonstrate that they themselves would be impacted by the zoning relief, such as a showing that the development interfered with a view, reduced light or air, or interfered with their privacy.

While the Appeals Court was willing to determine standing mostly based upon a local municipality’s zoning ordinance alone, the Supreme Judicial Court clarified that a failure to comply with zoning, on its own, does not establish aggrievement. 

Implications of Murchison

Murchison did not chart a new course for determining standing in a G.L. c. 40A, § 17, appeal. Rather, Murchison largely reaffirmed prior caselaw on standing, by emphasizing the importance of showing one’s individual harm as grounds for aggrievement.  

Murchison, however, does reemphasize the tension in resolving such inquiries. Everyone involved in a real estate dispute is familiar with the old adage that “all property is unique.” Consequently, what one property owner considers as an important protection from a zoning ordinance may not be the same as another. In other words, while Land Court might deem the Murchison plaintiffs’ concerns about their neighbor’s minimum lot width to be de minimis, such a determination is not always a clean-cut answer. 

The Appeals Court offered the simplest solution to this type of question: Let each municipality’s zoning ordinance make this call. But affording standing to nearly any party alleging a zoning violation would seemingly eliminate “aggrievement” from G.L. c. 40A, § 17.

Therefore, determining whether one’s harm is more than de minimis will remain a continued source of contention for future zoning appeals. Those pursuing zoning appeals must be mindful that a determination of standing is a question of fact, and careful thought must be given to the evidence necessary to prove such a matter.  

Murchison also reaffirms that, in Massachusetts, zoning decisions are intended to be local. Because a zoning appeal under G.L. c. 40A, § 17, requires a showing of harm, many zoning decisions will not (and, indeed, cannot) be reviewed in court, for want of a party with standing to challenge the decision. This means that, for many zoning matters, local board of appeals or special permit granting authorities will continue to have the final say on many land use decisions.

Adam Sherwin is a solo practitioner concentrating in real estate litigation. He represents property owners, landlords, and tenants with a wide array of real estate matters, including boundary disputes, zoning appeals, contract disputes, foreclosure law, and landlord-tenant matters.


Town of Sudbury v. Massachusetts Bay Transportation Authority

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by Jessica G. Kelly

Case Focus

The long-standing “prior public use doctrine”—a common law doctrine which arose in the 1800s—states that “public lands devoted to one public use cannot be diverted to another inconsistent public use without plain and explicit legislation authorizing the diversion.” Town of Sudbury v. Massachusetts Bay Transportation Authority, 485 Mass. 774, 775 (2020) (Sudbury).  In a much anticipated decision, the Supreme Judicial Court (SJC) held that the prior public use doctrine did not apply to “diversion of land devoted to one public use to an inconsistent private use.” In Sudbury, the SJC declined to extend the doctrine to land transactions between public agencies and private entities. 

As the defendants in the underlying case, the Massachusetts Bay Transportation Authority (MBTA) and NSTAR Electric Company d/b/a Eversource Energy (Eversource) urged, the SJC reasoned that application of the prior public use doctrine to public to private transactions would have broad, adverse implications for real estate and housing development in the Commonwealth, including creating significant uncertainty in developments that benefit the public.

Background

The case began in 2017, after the MBTA entered into an option agreement with Eversource to install an electric transmission line underneath approximately nine miles of a former MBTA railroad right of way (ROW), a portion of which traveled through the Town of Sudbury (Town). The MBTA originally acquired the ROW through a railroad company indenture and through eminent domain for purposes of mass transportation services. The ROW had not, however, been used as a railroad for over forty years. The option agreement would generate $9.3 million for the MBTA over twenty years. 

The Town challenged the agreement as violating the prior public use doctrine, arguing that the ROW could not be changed to an electrical utility use absent legislative approval. The Town took the position that Eversource’s proposed utility line was actually a subsequent public use, because utilities have a public purpose and, therefore, fell within the doctrine.

In granting the defendants’ Motion to Dismiss, the Land Court (Piper, J.) concluded that the Town’s standing was on the “precipice of adequacy,” but that Eversource was not a public entity, the proposed use at issue was a subsequent private use, and, therefore, the prior public use doctrine did not apply.

The Court’s Analysis

The SJC affirmed. The SJC first held that the Town had standing based on the limited portions of publicly-owned land abutting or within the ROW, but only to the extent the Town had a legally cognizable interest in the ROW remaining in its “current, disused, and overgrown condition.”

The SJC next addressed whether the prior public use doctrine applied to the option agreement. The Town argued that the Land Court erred because (1) even though Eversource is a private corporation, the proposed use of the ROW for electrical transmission lines is a public use; and (2) the Land Court’s narrow reading of the prior public use doctrine defeats the purpose of protecting “public land acquired for a particular public use” from being diverted to a different use without legislative approval.

The SJC agreed with the Land Court that, “the proposed use of the MBTA ROW to construct and operate underground transmission lines is not a public use.” The Court focused on the character of the use, noting that Eversource is privately owned and operated, will pay taxes and can earn a profit on the project. That Eversource is subject to public regulation and oversight did not convert the privately owned utility into a public entity.    

The SJC also agreed with the Land Court that the prior public use doctrine could not be extended to protect public land from any subsequent inconsistent use. The Court explained that the doctrine originally developed, not just to protect public land, but to resolve disputes over inter-governmental transfers between public agencies, political subdivisions and/or state-sponsored corporations that may have conflicting claims to authority over the use of public land, especially parkland. As examples, the SJC cited to a dispute between a town and State agency over whether property acquired for parkland could be converted to a transportation use, Brookline v. Metropolitan Dist. Comm’n, 357 Mass. 435, 435 (1970), and a dispute between a town and county commissioners concerning the relocation of a public way over land previously appropriated for school and library use, Needham v. County Comm’rs of Norfolk, 324 Mass. 293, 295-297 (1940), among others. 

The SJC concluded that the “doctrine of prior public use prevents the absurd result of public entities, each with the authority to exercise eminent domain, taking and retaking the same property from each other” in perpetuity. Noting that the prior public use doctrine had never been applied to prevent a subsequent private use by a private entity, the SJC expressly declined to extend the doctrine to such circumstances. The Court also cautioned that requiring legislative approval for every diversion of land from public to private use “would lead to numerous deleterious consequences,” such as adding significant uncertainty to development in the Commonwealth and making important collaborations between public and private entities time- and cost-prohibitive.

Implications

The SJC’s decision in Sudbury was a relief to real estate and utility industries, among others. The SJC appeared persuaded by the argument that public/private development projects rely on the ability of public agencies to divert public land to private entities for private uses, and that many such developments further public purposes such as clean energy, public housing, and affordable child care facilities, and generate significant income for the Commonwealth.

It is important to note that the Sudbury decision does not open the floodgates to unfettered transfers of public lands, but simply eliminates the need for legislative approval for those transfers to private entities for private uses. Aggrieved parties may still challenge projects through local zoning, site plan review, utility, environmental, building and conservation procedures. Indeed, the Town of Sudbury’s appeal of the Energy Facilities Siting Board’s decision approving Eversource’s transmission line is currently pending before the SJC, No. SJC-12997. 

Jessica Gray Kelly is a partner at the Boston office of Freeman Mathis & Gary, LLP.  She represents clients in complex commercial litigation, land use disputes, and professional liability matters. She also advises clients on risk reduction and management and dispute resolution. 


Warrant-Based Searches Do Not Override Statutory Consent Requirement for OUI Blood Draws

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by Emma Quinn-Judge

Case Focus

A licensed driver who uses the public roadways in Massachusetts has agreed—implicitly—to submit to blood alcohol testing (BAC) or a breathalyzer test if arrested for operating under the influence of alcohol (OUI). If the driver refuses to take a BAC test, the driver’s license is suspended for 180 days or longer. While there are consequences to declining testing, the Commonwealth’s implied consent statute is unequivocal: Where a driver declines a blood test, “no such test . . . shall be made.”

Drawing a blood sample is a search and seizure for constitutional purposes, because individuals have an expectation of privacy in their blood. However, both the Supreme Court of the United States and the Supreme Judicial Court (SJC) have long held that law enforcement may draw blood without consent where there is either a search warrant supported by probable cause, or exigent circumstances justifying a warrantless search. Schmerber v. California, 384 U.S. 757, 767 (1966); Commonwealth v. Angivoni, 383 Mass. 30, 32 (1981).

In Commonwealth v. Bohigian, 486 Mass. 209 (2020), the SJC considered whether, in an OUI prosecution, a BAC test performed without consent, but with a warrant, was admissible. In a 4-2 decision, the SJC concluded that the implied consent statute “flatly and unambiguously prohibits blood draws without consent,” and as such, BAC evidence obtained by a warrant is inadmissible. Id. at 214.

Following an accident in which he seriously injured another driver, Charles Bohigian refused to consent to a blood draw. A State Trooper obtained a warrant to draw Bohigian’s blood. After being presented with the warrant, Bohigian refused again to have his blood drawn. Troopers ultimately held down his arms and legs while a nurse drew his blood. A chemical analysis of his blood revealed that Bohigian’s BAC was more than twice the legal limit. See G. L. c. 90, § 24 (1)(a)(1). Bohigian was charged with and convicted of, among other things, OUI.

General Laws c. 90, § 24(1)(f)(1) provides that an individual operating on a public road “shall be deemed to have consented to submit to a chemical test or analysis of his breath or blood in the event that he is arrested for operating a motor vehicle while under the influence of intoxicating liquor.” If, however, “the person arrested refuses to submit to such test or analysis [and is informed of the consequences of such refusal], no such test or analysis shall be made.” G.L. c. 90, § 24(1)(e)(1) makes such tests admissible in OUI prosecutions, “provided . . . that if such test was made by or at the direction of a police officer, it was made with the consent of the defendant.” Thus, “[t]ogether the two subsections provide that, if an arrestee consents to a BAC test, the results are presumptively admissible at trial for a charge of OUI under § 24(1)(a).” Bohigian, 486 Mass. at 212.

Prior appellate decisions suggested that the statutory framework provided a right of refusal that was independent of, and in addition to, any constitutional requirements. In Commonwealth v. Davidson, 27 Mass. App. Ct. 846, 848 (1989), the Appeals Court noted that “[w]here there is probable cause to believe that a defendant has been operating a vehicle while under the influence of intoxicating liquor, the defendant has no constitutional right to refuse a blood test or breathalyzer test,” but rather, the “right of refusal he does have stems from the statute, which requires that a test not be conducted with his consent.” In Commonwealth v. Dennis, 96 Mass. App. Ct. 528, 532 (2019), the Appeals Court reiterated that “a requirement of consent is imposed by statute even when, because there is probable cause and exigent circumstances, one is not imposed by the Federal Constitution.”

Davidson and Dennis, however, both concerned how to evaluate consent. Neither case involved a situation in which police officers had obtained a warrant for a blood draw after an unequivocal refusal. Bohigian squarely presented that question for the first time and, following the reasoning and statutory interpretation in these earlier cases, the SJC held that the “plain statutory language . . . creates a blanket prohibition against blood draws without consent in the context of OUI prosecutions.” Bohigian, 486 Mass. at 213. While an individual’s blood may be drawn pursuant to a warrant in other contexts and for other purposes, the right of refusal in OUI cases is absolute.

The SJC’s decision treated constitutional rights as a floor or baseline for individual rights. “It is well within the Legislature’s authority to provide additional privacy protections over and above those granted by the Federal Constitution and the Massachusetts Declaration of Rights.” Bohigian, 486 Mass. at 216. Viewing the statute within this analytical framework, the Court examined the plain language, giving weight to Davidson and Dennis, which articulated a longstanding interpretation of the statutory language. Indeed, the SJC noted that the legislature had repeatedly amended the relevant statutory provisions since Davidson was decided in 1989, without ever changing the consent requirements. The Court also pointed out that the Massachusetts statute was adopted just one year after the Supreme Court decided Schmerber v. California, 384 U.S. 757 (1966), implying that the legislative choice to require consent was made knowingly in the aftermath of a landmark Supreme Court decision establishing that blood draws are permissible with a warrant or under exigent circumstances. Moreover, the Court noted that other states with similar statutory schemes have interpreted them to categorically bar blood draws without consent. Finally, the SJC emphasized that there are valid public policy reasons to strike the balance the legislature struck, including the interest in avoiding violent confrontation and the risk of injury to patients and health care providers.

Justice Lowy, joined by Justice Kafker, dissented on the ground that the decision of a “neutral and detached magistrate” to issue a warrant upon a finding of probable cause, “bears no relation to the suspected offender’s consent, nor does it implicate the regulatory apparatus of implied consent or its effects on evidentiary admissibility.” Bohigian, 486 Mass. at 221. In other words, the dissent viewed constitutional provisions regarding unlawful search and seizure not as the minimum level of protection for individual rights, but rather as an exception to the rights set forth by statute. Rejecting the majority’s statutory interpretation, the dissent focused on the statute’s overriding public safety purpose: “[F]or every hemophiliac, diabetic, or person on anticoagulant medication who is arrested for OUI, or for every medical worker who is injured by a sharp needle when blood is drawn . . . immeasurably more danger results from permitting repeat OUI offenders to get behind the wheel.” Bohigian, 486 Mass. at 235.

In cases where a defendant unequivocally refuses to take a breathalyzer or BAC test, the implied consent statute establishes an unambiguous standard: “[N]o such test or analysis shall be made.” G.L. c. 90 § 24(f)(1). The civil penalties for refusal are not insignificant: They include immediate license suspension for at least six months per test (and for substantially longer periods for those with a record of prior OUI convictions), with no right to reinstatement or a hardship permit during the period of suspension, as well as vehicle impoundment and related costs. The statute provides that the minimum periods of license suspension apply to each refusal, with suspensions to run concurrently, not consecutively “as to any additional suspension periods arising from the same incident, and as to each other.” Id.

Bohigian has simplified the legal questions for a driver who refuses a blood alcohol test. Because not all individuals refuse testing as clearly as Mr. Bohigian did, whether a driver—especially a highly-intoxicated or seriously-injured driver—has legally consented to a blood test is likely to remain contested in many cases. The answer to that question will still require a court to analyze whether the driver consented voluntarily, within the meaning of the Fourth Amendment. And where the Fourth Amendment is satisfied, a court will need to examine whether an individual has met the lower statutory standard for consent discussed in Dennis and Davidson (i.e., the “traditional indicia of waiver of rights”). While Bohigian may be the final word on refusal, it is unlikely to be the last word on consent.

Emma Quinn-Judge is a partner at Zalkind Duncan & Bernstein LLP, where she focuses on criminal defense, employment litigation, and appeals.


Three Years or You’re Out: SJC Limits MassHealth Estate Recovery Claims

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by Meredith A. Fine

Case Focus

In In the Matter of the Estate of Kendall, 486 Mass. 522 (2020) (“Kendall”), the Supreme Judicial Court (“’SJC”) held that MassHealth has three years from a beneficiary’s death to file its claims for reimbursement on estates or the claim is barred.

Background

MassHealth filed a claim against the estate of Jacqueline Ann Kendall more than three years after Ms. Kendall died intestate on August 7, 2014.  At the time of her death, Ms. Kendall owned a one half interest in a house and had received $104,738.23 in MassHealth benefits, which payments were subject to recovery by MassHealth from her estate.

More than three years after her death, on May 24, 2018, an heir filed a Petition for Late and Limited Testacy in the Probate & Family Court, seeking appointment as the personal representative. As required by statute, a copy of the probate petition was mailed to the Division of Medical Assistance (the “Division”), the state Medicaid agency that administers the MassHealth program. MassHealth notified counsel for the probate petitioner it would file a notice of claim in the estate. The estate rejected the claim as untimely.

MassHealth filed objections asserting its rights to present and recover claims under the Massachusetts Uniform Probate Code, G. L. c. 190B (the “Probate Code”), even after the three-year bar on creditor claims established under § 3-108 (4), and the one-year creditor filing deadline established under § 3-803 (a). MassHealth also filed a petition for formal probate requesting the appointment of a public administrator as the personal representative so that the MassHealth claim could be paid.

In April 2019, after a judge of the Probate and Family Court certified a series of questions to the Massachusetts Appeals Court, the SJC transferred the case on its own initiative. The National Academy of Elder Law Attorneys, joined by the Real Estate Bar Association, filed an amicus brief in support of the position taken by Ms. Kendall’s estate.

The SJC’s Decision

Justice Scott L. Kafker, writing for a unanimous Court, held that the Probate Code § 3-108 (4) prohibits the filing of any claims other than expenses of administration in estates after three years from the date of death, and also prohibits the personal representative from paying such late presented claims. In its 21-page decision, the SJC first reviewed the statutory background of the Probate Code and the MassHealth Estate Recovery program and determined that although the Legislature provided MassHealth with various advantages over other creditors, it did not exempt MassHealth from the three-year “ultimate time limit” on the filing and payment of all creditors’ claims against estates established in § 3- 108 of the Probate Code. Kendall, 486 Mass. at 523.

‘Plain and clear language’

In explicating the statutory scheme under well-established principles of statutory construction, the SJC’s 21-page decision emphasized that the three-year time limit is critical to the Commonwealth’s longstanding policy of “promoting a speedy and efficient system for liquidating the estate of the decedent and making distribution to the decedent’s successors” that is embodied in G. L. c. 190B, § 1-102 (b) (3)Kendall, 486 Mass. at 526.

The Court reasoned that the Legislature knew how to exempt MassHealth from requirements that applied to other creditors, but specifically did not include an exemption for the Division from the three-year limit on creditors’ claims set forth in § 3-108 of the Probate Code which “functions essentially as a statute of repose” and has “the effect of placing an ‘absolute time limit’ on liability.” Kendall, 486 Mass. at 528 (“Where the Legislature intended for differential treatment for MassHealth in the probate process, it did so expressly.”).

The Court continued, “The three-year ultimate time limit is a critical provision ensuring the orderly settlement and liquidation of estates in a relatively expeditious manner. We conclude that if the Legislature intended to create an exception for MassHealth to this ultimate time limit, it would have done so expressly in that particular provision.”  Id. Indeed, the language of the Probate Code establishing the ultimate time limit and limiting the powers of the personal representatives in late and limited testacy is “plain and clear.”  Id.

The Court gave significance to the fact that creditors, including MassHealth, have the power to open estates in order to preserve claims, “provided that the petition for an appointment of a personal representative was filed prior to the expiration of the ‘ultimate time limit’ of § 3-108.” Kendall, 486 Mass. At 531. However, the Court rejected MassHealth’s argument that limiting the time to file claims would violate federal Medicaid rules. “Nothing in the Federal law requires, as MassHealth claims, that MassHealth go beyond the bounds of State law to recover the maximum possible extent of its benefits.” Id. at 533 (citing to Daley v. Secretary of the Executive Office of Health & Human Servs., 477 Mass. 188, 204 n. 15 (2017), describing how state has limited right to recover probate assets consistent with federal Medicaid law).

The Court also acknowledged but dismissed MassHealth’s argument about unfairly shifting an undue burden to the Division to track the status and receipt of notice of the deaths of beneficiaries who are not in long-term care facilities. The Court observed that most estates will be settled quickly, and that MassHealth with due diligence should be aware when benefits to its clients cease and can cross-match this information with public death records or undertake direct inquiry to ascertain a beneficiary’s status as MassHealth’s Estate Recovery Unit already takes steps to do.

In addressing MassHealth’s argument that heirs would wait out the three-year period to avoid reimbursing MassHealth, the Court pointed out that the Legislature had already examined that possibility and deemed the scenario unlikely and the associated risk low. “The Legislature’s risk assessment and overall cost-benefit analysis is entitled to respect.” Id. (quoting from official comment to G. L. c. 190B § 3-803).

Conclusion

The SJC has answered:  The Massachusetts Uniform Probate Code is clear that more than three years from the date of death, a personal representative has the power only to sign title documents and pay estate administration expenses, and MassHealth is not exempt from the three-year “ultimate time limit” for bringing creditors’ claims against estates. Indeed, if MassHealth’s arguments prevailed, estates would never close.  And, personal representatives of estates would never be freed from their duties and personal liability, and the estate’s interest in assets, such as real estate, would never be fully released. In Kendall, the Court affirmed that the obligation of timely filing estate claims rests squarely on the shoulders of the creditor, in this case MassHealth, as the Legislature intended. At some point, estates must close.

Meredith A. Fine, Esq., has offices in Gloucester and Ipswich, where her practice focuses on real estate, litigation, and business counseling. She can be reached through her website, capeannlegal.com. Winning the Kendall case was the highlight of her career to date but not as exciting as the NY Mets winning the World Series in 1969.


Department of Revenue Child Support Enforcement v. Grullon: What Process Is Due When Child Support Is Due?

by Andrea Peraner-Sweet and Kelly A. Schwartz

Case Focus

In Department of Revenue Child Support Enforcement v. Grullon, 485 Mass. 129 (2020), the Massachusetts Supreme Judicial Court (“SJC”) (Cypher, J.) vacated the trial court’s judgment of contempt, holding that both the trial judge and the Department of Revenue (“Department”) failed to afford the defendant, the non-custodial father (“Father”), the procedural due process safeguards to which he was entitled under federal and state law and under the Department’s own policies. The opinion sets forth the procedural safeguards that a defendant in a child support contempt proceeding must be provided.  It also reaffirmed that a defendant’s ability to pay remains the critical inquiry when determining whether a defendant is in contempt and facing possible incarceration.

Background

Mother, the custodial parent, filed a pro se complaint for civil contempt alleging that Father was in arrears on his child support obligation. The complaint was served by the Department on behalf of Mother and marked “DOR full service case,” indicating the Department’s involvement and assistance in the matter. Father, also appearing pro se, filed an answer and counterclaim for modification, claiming that he was unable to meet his obligation due to his past incarceration and subsequent difficulty finding employment. Accordingly, he requested a reduction in his child support obligation.

At a hearing, the Department argued that Father was in contempt and sought a period of incarceration of the Father subject to a $500 purge amount. Without making any factual findings, the Judge entered a judgment, found Father in contempt and sentenced him to ten days in the house of correction, subject to the $500 purge amount. Because Father was unable to pay the purge amount, he was taken into custody and incarcerated for ten days.

Father appealed and the SJC granted an application for direct appellate review.

The SJC’s Decision

Looking first to the United States Supreme Court’s decision in Turner v. Rogers, 564 U.S. 431 (2011), the SJC identified four safeguards that needed to be provided to a defendant in a contempt proceeding:  “(1) notice to the defendant that his ‘ability to pay’ is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status…; and (4) an express finding by the court that the defendant has the ability to pay.” Id. at 447-48.

The SJC then turned to the federal regulations that were enacted to reflect the Turner requirements, which include screening whether defendants have the ability to pay; providing information to the court about defendants’ ability to pay; and providing defendants with clear notice that their ability to pay constitutes the critical question in civil contempt actions.  45 C.F.R. §303.6(c)(4).  

Finally, the SJC noted that the Department has adopted the federal guidance in a civil contempt policy and procedures memorandum, which states that “[i]t is the [Department’s] obligation to ensure that there is sufficient evidence that the parent has a present ability to pay before…assisting with service of a pro se customer’s complaint for contempt.” Grullon, 485 Mass. at 135. Further, “[a] parent’s present ability to pay is the key issue at every step of the contempt process—from screening through court hearings.” Id.

In vacating the judgment of contempt, the SJC held that the failure of both the trial judge and Department to afford Father with the Turner safeguards or their equivalent, or to comply with federal regulations, state law or the Department’s own policy, resulted in Father being wrongfully found guilty of civil contempt and incarcerated for ten days.

First, the Court concluded that the Department did not provide Father with notice that “his ‘ability to pay’ [was] a critical issue in the contempt proceeding.” Id., quoting Turner, 564 U.S. at 447.

Second, the Court could not determine whether the trial judge or the Department ever assessed Father’s financial disclosure form, which clearly indicated Father’s inability to pay. Id. at 136. Accordingly, the SJC held that the Department should not have requested that Father be incarcerated. Further, the SJC opined that “[b]ased on the lack of discussion at the hearing of the contents of the financial disclosure form and the assertion by counsel for the Department that [Father] should be incarcerated, it appears the [Father’s disclosure] form, although complete, was not used in any meaningful manner[.]”  Id.

Third, the Court concluded that the trial judge denied Father “an opportunity to ‘respond to statements and questions about his financial status[.]’”  Id. at 136, quoting Turner, 564 U.S. at 448. Once the trial judge decided to sentence Father, she failed to inquire whether he had the present ability to pay his child support.

Finally, the SJC noted that the trial judge did not make an express finding that Father had the ability to pay the child support arrearages or the purge amount. Id. at 137. Rather, the SJC highlighted that the transcript “reveal[ed] that the judge decided to find the defendant in civil contempt not because of an assessment of his ability to pay, but because of his ‘poor attitude.’ This decision by the judge was error, as it disregarded the procedural safeguard of ability to pay.”  Id.

Of note, although briefed, the SJC left unanswered the question of whether an indigent non-custodial parent who received these procedural safeguards must be provided with counsel. Id. at 138.

Conclusion

In Grullon, the SJC set forth a roadmap for the procedural due process safeguards that courts and the Department must follow before a defendant can be found in contempt and incarcerated for failing to pay child support. As the late Chief Justice Gants alluded to in his concurring opinion, how and whether these safeguards will be implemented in the future is unknown. Thus, family law attorneys should familiarize themselves with these safeguards to ensure that a defendant is not found in contempt or incarcerated without having been afforded the full panoply of these protections and without a judge’s explicit finding of a defendant’s ability to pay.

Andrea Peraner-Sweet is a partner at Fitch Law Partners LLP.  Her practice focuses on general business litigation with an emphasis on employment litigation as well as probate litigation.  Andrea is a  current member of the Boston Bar Journal.

Kelly A. Schwartz is an associate at Fitch Law Partners LLP.  Her practice is in family law, which includes matters involving divorce, child custody, alimony, child support, and asset division.


Glendale Associates, LP v. Harris: Due Process Rights of Disabled Tenants under the Massachusetts’ Common Nuisance Statute, G.L. c. 139, § 19

by Courtney Libon

Case Focus 

Since the establishment of the first Massachusetts Housing Court in 1971, the need for the resolution of housing-related disputes has increased exponentially. Under the leadership of the late Supreme Judicial Court (“SJC”) Chief Justice Gants and Trial Court Chief Justice Carey, every community in the Commonwealth now has access to housing court, with expert judges, housing specialists, pro bono resources, and special code enforcement sessions. These features are intended to make courts more user-friendly and to assist pro se litigants in navigating the intricate system of housing court litigation. See Adjartey v.  Central Div. of the Hous. Court Dep’t, 481 Mass. 830 (2019) (“Adjartey”).

Over 60,000 cases are filed in housing courts each year, the vast majority of which are evictions involving a dizzying array of procedural technicalities administered at lightning speed. Tenants can go from first notice to homelessness in just a few days under the Common Nuisance Statute, G.L. c. 139, § 19 (“Nuisance Statute” or “Section 19”); with many more losing their right to possession in the course of a few weeks under the Summary Process Statute, G.L. c. § 239, which expedites civil procedure in evictions. Even with the benefits of specialized housing courts, litigants, a majority of whom are pro se and many of whom have disabilities, struggle to enforce their rights in the high-stakes eviction proceedings.

In a recent decision, Glendale Associates, L.P. v. Harris, 97 Mass. App. Ct. 454 (2020) (“Glendale”), the Appeals Court took the unusual step of shining a light on how, even within the framework of the housing courts’ special benefits and discretion, due process requires that pro se litigants with disabilities be afforded the opportunity to assert their claims and defenses without unreasonable conditions that impede access to justice.

Case Background: Glendale Associates, L.P. v. Harris

On May 20, 2016, Glendale Associates (“Landlord”) brought action in the Eastern Division of the Housing Court Department (“Court”) invoking the Nuisance Statute to void the lease of Kevin Harris, a disabled tenant receiving services from the Department of Mental Health (“DMH”), and seeking an order requiring Mr. Harris to immediately vacate his federally-subsidized apartment. The complaint alleged that Mr. Harris threw bottles from his apartment window targeting the Landlord’s employee. The Nuisance Statute authorizes landlords to seek immediate voidance of the lease of a subsidized tenant who engages in any of enumerated activities under Section 19, including crimes of violence against building employees. G.L. c. 139, § 19. The Court issued, ex parte, a temporary restraining order barring Mr. Harris from entering his home until further order of the Court, and subsequently issued a preliminary injunction without findings that rendered Mr. Harris homeless for the duration of the litigation while he defended the action pro se.

While Mr. Harris denied the allegations in the complaint, the Court focused on a treatment plan to address his mental health impairments and the behavior alleged. On August 9, 2016, Mr. Harris’s DMH case worker submitted a detailed treatment plan that would allow Mr. Harris to return to his apartment and reside there in compliance with his lease as a reasonable accommodation of his disability. The Court rejected the DMH plan and instead crafted and ordered a more onerous plan that, among other requirements, conditioned allowing Mr. Harris to return to his apartment as of September 1, 2016 upon filing of documentation that he was working or attending a day program and otherwise would be out of his apartment for at least five hours per day, and meeting a visiting nurse daily for medication administration notwithstanding that such services could not be arranged during Mr. Harris’s court-ordered  homelessness. The judge also imposed a “gatekeeper order” preventing Mr. Harris from submitting further pleadings or documents without Court permission. Despite repeated efforts by Mr. Harris’s service providers to demonstrate that the conditions in the Court’s treatment plan were not feasible or medically appropriate and to offer alternatives, the Court maintained the requirements of its own ordered plan and continued to find Mr. Harris’s efforts insufficient to allow him to return to his apartment.

On December 4, 2016, the Landlord moved for a default pursuant to Mass. R. Civ. P. 55 on the basis that Mr. Harris failed to answer or “otherwise defend” its complaint, and thereafter, the clerk entered the default without explanation. On January 19, 2017, the Landlord moved for entry of final judgment and issuance of execution for possession based on the default. The Court declined to take action on Mr. Harris’s submissions made in response because he “failed to obtain written permission of the court for filing” as per its gatekeeper order, but also did not act on his subsequent pro se request to file a motion.

At a February 15, 2017 review hearing, the Court stayed its decision on the Landlord’s motion for entry of final judgment and appointed a guardian ad litem (“GAL”) to assist Mr. Harris in compliance with the Court’s treatment plan. Although the GAL diligently complied with his appointment and submitted two reports and a new proposed treatment plan, on May 10, 2017, the Court allowed the Landlord’s renewed motion for final judgment and execution without a hearing, thus depriving Mr. Harris of even the Court-promised opportunity to respond orally at a hearing on the Landlord’s motion, and to otherwise defend himself as to the allegations in the complaint.  Mr. Harris moved for reconsideration, which was denied after hearing.

Court Holdings

In vacating the judgment and remanding the case, the Appeals Court took care to detail the course of the litigation, illustrating why the entry of default was not only legal error but “fundamentally unfair,” an abuse of discretion, and a violation of due process where the Court “bypassed the question of Harris’s liability under Section 19 and proceeded directly to the remedial phase of the litigation,” repeatedly denying Mr. Harris the opportunity to defend against the complaint, including through the gatekeeper order. 97 Mass. App. Ct. at 465. The Appeals Court observed that a default was inappropriate because, at a minimum, Mr. Harris was entitled to an evidentiary hearing under the Nuisance Statute, and his active participation in the litigation through a year of court-ordered homelessness met the standard for “otherwise defending” under Mass. R. Civ. P. 55.

The Appeals Court also provided a useful roadmap for reasonable accommodations in the context of Housing Court proceedings, reminding that: (1) it was the Landlord’s burden — not Mr. Harris’s — to demonstrate, through an individualized assessment and the interactive process, that no reasonable accommodation was feasible, and (2) the trial courts have a duty to make findings sufficient to permit appellate review, “based on current medical knowledge and reasonable judgment and objective evidence,” as to the reasonableness of a proposed plan and whether the risk posed by a disabled resident may be eliminated or acceptably minimized by a proposed accommodation. 97 Mass. App. Ct. at 462-464 (citing to Adjartey, 481 Mass. at 849 and Boston Hous. Auth. v. Bridgewaters, 452 Mass. 833, 850 (2009)). Thus, the Court’s imposition of its own treatment plan, without explanation and findings necessary for appellate review, was an abuse of discretion.

Conclusion

Glendale makes clear that the reasonable accommodation requirements articulated by the SJC in Bridgewater and Adjartey apply equally to emergency proceedings under the Nuisance Statute as other civil proceedings, but do not substitute for the due process rights of all litigants to defend against a complaint. Glendale also powerfully reminds us that evictions result in much more than loss of housing, but may also result in loss of access to medical treatment, systems of support, and educational and employment opportunities. Today, ushered by the COVID-19 pandemic, the stakes are higher than ever. This is a historic moment to consider fundamental change to ensure that all litigants, including disabled and pro se tenants like Mr. Harris, have meaningful and equal access to justice.

Courtney Libon is the Housing and Disability Supervisor at De Novo Center for Justice and Healing.  Prior to De Novo, Courtney was a Staff Attorney at the Legal Aid Society of New York, where she represented individual tenants and tenant associations.


In the Matter of a Grand Jury Investigation, 485 Mass. 641 (2020)

by Victor Hansen

Case Focus

In one of his last opinions before his untimely passing, Chief Justice Ralph Gants addressed the unique and important responsibility of the criminal prosecutor to do justice.  In fulfilling this responsibility, the prosecutor acts not as an extension of law enforcement but as an important check against corrupt and abusive practices.  These reminders came in the Matter of a Grand Jury Investigation involving two police officers (the petitioners) who admitted filing false police reports regarding the use of force by a fellow officer.

While on duty, the petitioners observed, but did not participate in, the arrest of a citizen charged with, among other things, resisting arrest.  The arresting officer, Michael Pessoa, claimed that the arrestee was noncompliant and threatening, and that force had to be used to subdue him, as a result of which the arrestee was injured.  The petitioners supported Pessoa’s version when they completed an internal departmental report of the arrest.  However, video evidence revealed that the arrestee had not resisted.  Rather, Pessoa had struck the compliant arrestee with his head and shoulder, knocking the arrestee to the ground “in a violent manner.”

During an ensuing grand jury investigation into Pessoa’s conduct, the petitioners testified under grants of transactional immunity and admitted to lying in their departmental reports.  The district attorney sought permission from the Superior Court to disclose this information to criminal defendants in other cases where the petitioners could be potential witnesses, asserting that due process required the disclosure of this potentially exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972).  The petitioners sought to prevent the disclosure of their testimony.

In its decision, the Supreme Judicial Court addressed three questions: (1) whether Brady requires disclosure of this information in unrelated cases; (2) whether, if there is such an obligation, the district attorney could disclose the evidence even if it was obtained pursuant to a grant of immunity and order to testify before the grand jury; and (3) whether, if there is a Brady obligation, the prosecutor must seek prior judicial approval before disclosing the evidence.  The Court concluded that the prosecution had an obligation to produce the discovery at issue without a court order.  Writing for the Court, Chief Justice Gants powerfully reaffirmed that prosecutors do not serve a narrow constituency and are not merely an arm of law enforcement. Rather, the prosecution has the unique and important responsibility to seek justice.

First, the Court took a broad view of the type of evidence that falls within the scope of Brady. Brady covers not merely direct evidence of a defendant’s possible innocence, but equally information that challenges the credibility of key prosecution witnesses (the type of evidence at issue in this case).  The Court also noted that the prosecution’s disclosure obligations are broader than Brady, the Massachusetts Rules of Criminal Procedure, and the Rules of Professional Conduct require prosecutors to disclose all evidence or information that tends to negate the guilt of the accused or mitigate the offense.  The Court thus included within Brady not only the constitutional obligation to disclose exculpatory information but also the broader obligation to make disclosure under Massachusetts rules.

Second, the petitioners argued that the failure to disclose this evidence in other criminal cases would not automatically require new trials in those cases because, even if a defendant were convicted, the information is not exculpatory.  The Court rejected this argument for two reasons: it reflected a too narrow view of the scope of a prosecutor’s Brady obligation, and because such an approach would encourage prosecutors to game the system and only consider how much exculpatory information they could safely withhold. Chief Justice Gants reminded us that we expect more from prosecutors than gamesmanship: rather than operating close to the ethical sidelines, prosecutors must operate in the middle of the field.  According to the Chief Justice, “once the information is determined to be exculpatory, it should be disclosed – period.” And if the prosecutors are at all in doubt about the exculpatory nature of the evidence, they should err on the side of caution and disclose it.

Applying this standard, the Court had little difficulty determining that, when police officers lie in official reports, such information is exculpatory and must be disclosed to any criminal defendant in whose case those officers may testify.

The petitioners also argued that the immunity grant they had received in exchange for their grand jury testimony should be applied broadly.  They contended that, if their falsehoods were disclosed to defendants in other cases, it would penalize the police officers for invoking their privilege against self-incrimination and violate the protections they received from the immunity grant.  The Court concluded, however, that, while the evidence was compelled, that did not affect the prosecutors’ Brady obligations.  Even though the disclosed exculpatory information might paint the petitioners in a bad light and reveal their “dirty deeds,” the grant of immunity protected the petitioners only from prosecution and not embarrassment. Chief Justice Gants reminded prosecutors that complying with their Brady obligations might be inconvenient, uncomfortable, embarrassing or worse, but that prosecutors cannot fail to disclose Brady material out of a misplaced sense of duty or loyalty to law enforcement, or to prevent embarrassing themselves or members of their office, public officials or potential witnesses.  Although avoiding needless or gratuitous embarrassment is worthwhile, that interest never outweighs a criminal defendant’s due process rights. Disclosure is always the correct choice, even when it may have a short term impact on the relationship between prosecutors and others, including law enforcement officials.

Finally, the Court addressed whether prior judicial approval is required before disclosing Brady material that was part of a grand jury proceeding.  The Court again referred to the duties of the prosecutor.  While maintaining grand jury secrecy is important, the Massachusetts Rules of Criminal Procedure governing grand jury secrecy provide that prosecutors may disclose matters occurring before the grand jury doing so is within the official performance of their duties. Just as prosecutors have an official duty to present inculpatory evidence to a grand jury, they have an equally important duty to disclose exculpatory information that may enable defendants to prove their innocence.  Accordingly, the prosecution can disclose this Brady information without a court order as part of their official duties. Chief Justice Gants again emphasized that prosecutors represent not an ordinary party, but of a sovereignty whose obligation is to govern impartially.

Many familiar with the role and functions of the prosecutor may not find the Court’s ruling surprising. The ethical and constitutional obligations of the prosecutor are broad and, to its credit, the lawyers in the district attorney’s office recognized those obligations and proactively complied with them.  One might wonder, then, why Brady violations continue to be a persistent problem in the criminal justice system, both nationally and in Massachusetts. Indeed, one of the most egregious Brady violations in the Commonwealth’s recent history occurred not long ago, when prosecutors failed to disclose the breadth of an Amherst drug lab technician’s substance abuse problems, which affected many hundreds of criminal cases.

The reasons why Brady violations persist are complicated and varied, including confirmation bias, the difficulty of prosecutors policing themselves, the desire of prosecutors to have good working relationships with law enforcement, job security, and even racial bias.  It is a fitting testament to Chief Justice Gants’ legacy that he clearly recognized that none could outweigh a criminal defendant’s right to a fair trial. The Chief Justice’s opinion serves as a poignant and important reminder that our criminal justice system is far from perfect, and that prosecutors, when they are motivated and guided by a sense of doing justice, have a critical role to play to ensure it is just.

Professor Victor M. Hansen, Professor of Law, directs the Criminal Practice and Procedure certificate program and teaches Criminal Law, Criminal Procedure, Evidence, and Prosecutorial Ethics at New England Law | Boston. He is the author of several articles and books on criminal and military law, evidence, and national security issues, and is an elected member of the American Law Institute.