Department of Revenue Child Support Enforcement v. Grullon: What Process Is Due When Child Support Is Due?Posted: November 18, 2020
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.
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.
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, § 19Posted: November 18, 2020
by Courtney Libon
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.
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.
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.
by Victor Hansen
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.
by Amanda Hainsworth
Title VII of the Civil Rights Act of 1964 has protected employees from discrimination “because of … sex” for more than half a century. 42 U.S.C.§ 2000e-2. Over time, Title VII has been construed to prohibit a range of different forms of sex discrimination, including sex stereotyping and sexual harassment. Yet some lower courts have stopped short of including LGBTQ workers within Title VII’s ambit, leaving LGBTQ employees in more than half of the states across the country without employment discrimination protections.
This changed in June when the Supreme Court of the United States held, in a landmark 6-3 decision, Bostock v. Clayton County, Georgia, 590 U.S. __, 140 S. Ct. 1731, 1737 (2020), that Title VII’s ban on sex discrimination includes discrimination based on sexual orientation and transgender status. This decision is a major victory for LGBTQ people and advocates, and has significant implications that extend well beyond the employment context.
The issue came to the Supreme Court in a trio of cases that raised essentially the same question: does Title VII bar employers from discriminating against a person because they are gay or transgender?
In Altitude Express, Inc., et al. v. Zarda, No. 17-1623, Donald Zarda was fired from his job as a skydiving instructor within days of mentioning to his employer that he was gay.
In R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, No. 18-107, Aimee Stephens was fired from her job after penning a letter to her employer disclosing her transgender status and intent to live and work full-time as a woman.
And in Bostock v. Clayton County, Georgia, No. 17-1618, Gerald Bostock was fired from his job after he began participating in a gay recreational softball league.
Each of these employees brought suit under Title VII, alleging unlawful discrimination because of sex. The Second and Sixth Circuits concluded that Title VII bars employers from firing people because of their sexual orientation (as to Mr. Zarda) or their transgender status (as to Ms. Stephens). In Mr. Bostock’s case, the Eleventh Circuit reached the opposite conclusion and held that Title VII does not prohibit employers from firing employees for being gay. The Supreme Court granted certiorari to resolve the circuit split over the scope of Title VII’s protections. Sadly, Mr. Zarda and Ms. Stephens both passed away before the Supreme Court issued its decision.
The Supreme Court’s Decision in Bostock
In Bostock, the Court unequivocally held that an employer who fires an individual for being gay or transgender violates Title VII. This is because, in firing a person for being gay or transgender, the employer has fired that person “for traits or actions it would not have questioned in members of a different sex,” which is exactly what Title VII prohibits. Bostock, 140 S. Ct. at 1737.
The Court relied heavily on the plain meaning of “because of . . . sex” at the time that Title VII was enacted. It proceeded on the assumption that, in 1964, “sex” signified male or female, and concluded that “because of” incorporated a traditional “but-for” causation standard, which the Court explained, “directs us to change one thing at a time and see if the outcome changes.” Bostock, 140 S. Ct. at 1739. Thus, an employer violates Title VII “if changing the employee’s sex would have yielded a different choice by the employer.” Id. at 1741. And, because “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” employers who do so are in violation of Title VII. Id.
To illustrate the point as to sexual orientation, the Court offered an example of an employer with two employees—one male and one female—both of whom are attracted to men and otherwise identical in all material respects. If the employer fired the male employee because he is attracted to men, but retained the female employee who is also attracted to men, then the employer has violated Title VII because the male employee’s sex was a necessary part of the termination decision.
To illustrate the point as to transgender status, the Court provided another example of an employer who fired a transgender woman because she was assigned male at birth. In this scenario, “[i]f the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.” Bostock, 140 S. Ct. at 1741. Here again, the employee’s sex was a necessary and impermissible part of the termination decision.
The Court rejected the employers’ argument that Congress did not intend Title VII to reach discrimination against LGBTQ people in 1964 when it enacted the statute. In doing so, the Court pointed out that there is no such thing as a “canon of donut holes” where Congress’ failure to directly address a specific circumstance that falls within a more general statutory rule creates an implicit exception to that general rule. Bostock, 140 S. Ct. at 1746-47. Instead, Title VII prohibits all forms of sex discrimination, however such discrimination might manifest and regardless of how else the discrimination might be characterized.
The Court also rejected the argument that Congress’ failure to pass amendments to expressly include sexual orientation and transgender status should be relevant to the Court’s interpretation of the statute. The Court noted that “speculation about why a later Congress declined to adopt new legislation offers a ‘particularly dangerous’ basis on which to rest an interpretation of an existing law a different and earlier Congress did adopt.” Bostock, 140 S. Ct. at 1747.
Finally, the Court rejected the employers’ argument that “sex” should be construed narrowly because of the “no-elephants-and-mouseholes canon” which “recognizes that Congress does not alter fundamental details of a regulatory scheme by speaking in vague or ancillary terms.” Bostock, 140 S. Ct. at 1753 (quoting Whitman v. Am. Trucking Assns., Inc., 531 U.S. 457, 468 (2001)). While the Court agreed that the Bostock holding is certainly an elephant, it rejected the idea that Title VII—a major federal civil rights law that is “written in starkly broad terms” and has “repeatedly produced unexpected applications”—is a mousehole. Id. Instead, the Court concluded, “[t]his elephant has never hidden in a mousehole; it has been standing before us all along.” Id.
The potential implications of the Bostock decision are sweeping.
The largest and most obvious implication is that LGBTQ people now have nationwide protection against discrimination by any employer covered by Title VII (i.e., any employer with fifteen or more employees). Although Massachusetts’s nondiscrimination law has protected LGBTQ people from employment discrimination for years, see G.L. ch. 151B, § 4, Bostock represents a sea change for those states without any employment discrimination protections for LGBTQ people. Employers in those states now need to, among other steps, review and update policies and procedures and employee benefits packages to ensure compliance.
More broadly, while the Court’s holding was limited to Title VII, Bostock may mean that other federal civil rights statutes that prohibit sex discrimination also prohibit discrimination on the basis of sexual orientation and transgender status. This is because courts routinely rely on rulings in Title VII cases to inform rulings in cases involving other civil rights laws with comparable prohibitions on sex discrimination. There are more than 100 different federal laws that prohibit sex discrimination in a wide variety of different contexts, including in education, credit, housing, healthcare, and military service. Bostock means that all of those laws may also protect LGBTQ people. Bostock also calls into question the legality of the Trump Administration’s efforts to roll back federal civil rights protections for LGBTQ people in areas such as education and school athletics (Title IX), the military, and the Affordable Care Act.
Beyond these implications, there will almost certainly be a great deal of litigation related to the interplay between federal civil rights laws and employers’ religious beliefs. Title VII contains a narrow exception for discrimination on account of religion, but the Court did not address the extent to which employers will be permitted to discriminate against LGBTQ people based on religious beliefs.
Bostock also has potential implications for the standard of review that should be applied to federal equal protection claims involving discrimination against LGBTQ people. Rational basis review has been applied to such claims since the Court’s decision in Romer v. Evans, 517 U.S. 620 (1996). But sex-based classifications have long been subject to intermediate scrutiny, and Bostock’s holding that discrimination against LGBTQ people is, at core, sex discrimination suggests that intermediate scrutiny should be applied to such claims moving forward.
And, finally, but perhaps most importantly, Bostock may help shine a light toward a world where LGBTQ people—and in particular Black and brown transgender people—can begin to live freely and openly, with a little less fear and a little less pain, and a little more opportunity to succeed and thrive.
*This article represents the opinions and legal conclusions of its author(s) and not necessarily those of the Office of the Attorney General. Opinions of the Attorney General are formal documents rendered pursuant to specific statutory authority.
Amanda Hainsworth is an Assistant Attorney General in the Civil Rights Division of the Massachusetts Attorney General’s Office.
by Jessie J. Rossman
In this age of increasing government monitoring of citizens in public spaces, the use of automated license plate readers (ALPRs) by law enforcement agencies has significantly increased the capacity for government surveillance of Massachusetts drivers on the roads and streets. A recent case decided by the Supreme Judicial Court suggests some limits on this surveillance.
ALPR systems capture and retain photographs of every license plate number that comes into view, along with the time, date and location. These systems can retain millions of historical records for months or years on end, and send real-time alerts on any license plate number entered into a “hot list.” According to one recent national survey, in 2016 and 2017 alone 173 law enforcement agencies scanned a total of 2.5 billion license plates.
In Commonwealth v. McCarthy, 484 Mass. 493 (2020), the Supreme Judicial Court addressed ALPRs for the first time. Although the Court affirmed the denial of defendant Jason McCarthy’s motion to suppress the warrantless search of data from four fixed ALPR units that captured information about his vehicle, the Court made clear that it would reach a different conclusion in cases involving more pervasive ALPR systems.
McCarthy joins a growing line of SJC and United States Supreme Court cases addressing the privacy implications of evolving surveillance technology. The Fourth Amendment of the United States Constitution and Article 14 of the Massachusetts Declaration of Rights protect an individual’s reasonable expectations of privacy from warrantless government intrusion. Technology has dramatically increased police officers’ surveillance capacity, overcoming the practical constraints and civilian oversight that historically checked such powers, and in doing so, has provided access to categories of information previously unknowable.
Mindful of these dangers, the SJC and SCOTUS have responded to ensure scientific advancements do not destroy traditional expectations of privacy. As the SJC emphasized in Commonwealth v. Almonor, 482 Mass. 35, 41 (2019), “both this Court and the United States Supreme Court have been careful to guard against the power of technology to shrink the realm of guaranteed privacy by emphasizing that privacy rights cannot be left at the mercy of advancing technology but rather must be preserved and protected as new technologies are adopted and applied by law enforcement.” Reflecting this understanding, the highest courts in the Commonwealth and the country have held that the police must obtain a warrant based on probable cause to conduct long-term GPS tracking of a car (Commonwealth v. Rousseau, 465 Mass. 372 (2013) and Commonwealth v. Connolly, 454 Mass. 808 (2009)), to obtain more than six hours of historical cell site location information (CSLI) from a cellphone, (Carpenter v. United States, 138 S. Ct. 2206 (2018), Commonwealth v. Augustine, 467 Mass. 230 (2014), and Commonwealth v. Estabrook, 472 Mass. 852 (2015)), and to use electronic surveillance of a cellphone to obtain real-time location information (Almonor).
McCarthy applied these established principles to a different surveillance-technology: ALPRs. Since 2015, the Massachusetts State Police has operated four ALPRs on the Sagamore and Bourne Bridges. Their cameras automatically feed images into a database maintained by the Executive Office of Public Safety and Security (EOPSS). As part of a narcotics investigation, the Barnstable Police Department searched for the appearance of McCarthy’s license plate in historical and real-time ALPR data from these four cameras without obtaining a warrant. In his motion to suppress, McCarthy argued that this warrantless access violated his constitutionally protected reasonable expectations of privacy, while the District Attorney suggested that art. 14 and the Fourth Amendment did not apply to these images because McCarthy knowingly exposed them to the public. Denying the motion, Superior Court Judge Robert Rufo opined, “[p]erhaps the defendants’ argument would be stronger if the ALPR Hot List was set to issue an Alert every time McCarthy’s vehicle passed any of the ALPR cameras installed at a multitude of locations statewide,” before noting that, “such a scenario is not in keeping with the facts before this court[.]”
The SJC took Judge Rufo’s reasoning one-step further. It affirmed that accessing ALPR data from “four cameras placed at two fixed locations on the ends of the Bourne and Sagamore bridges” did not trigger constitutional protections. But the Court went on to emphasize “[w]ith enough cameras in enough locations, the historic location data from an ALPR system in Massachusetts would invade a reasonable expectation of privacy and would constitute a search for constitutional purposes.” While the SJC did not demarcate the specific threshold that would require a warrant, it did provide some helpful guidance.
First, applying case law developed through cases involving GPS and CSLI, the SJC made clear that its precedents were anchored not in the particular type of technology used to conduct surveillance, but in the type of information collected via that technology. To that end, the SJC confirmed that technology which allows the police to “travel back in time,” obtain “real-time location data,” or conduct surveillance for a period of time that “drastically exceeds what would have been possible with traditional law enforcement methods,” will trigger constitutional protections.
Second, the SJC set forth some guideposts for future ALPR cases. It noted that EOPSS’ year-long retention period for ALPR data “certainly is long enough to warrant constitutional protection.” It also indicated that even a limited number of ALPRs may still trigger constitutional protections when they are placed “near constitutionally sensitive locations” such as “the home [or] a place of worship” that “reveal more of an individual’s life and associations[.]”
Finally, Chief Justice Gants’ concurrence proposed an “analytical framework that might prove useful in future cases.” He suggested a warrant could be required for ALPR data that created a sufficiently detailed picture to be “the type of mosaic that would constitute a search,” and reasonable suspicion could be required for ALPR data that was less revealing of the individual’s movements “but greater than the four location points established in this record[.]” This “would mean that law enforcement agencies would need to obtain court authorization more often before retrieving targeted individual historical locational information in their possession because queries that would not require a showing of probable cause might still require a showing of reasonable suspicion.” Chief Justice Gants also warned that, “unless the law enforcement agency has sought prior court approval to search for particularized locational data in its possession, the agency will have to preserve each and every search query for the retrieval of historical locational information regarding a targeted individual” and make it “available in discovery when sought by the defendant.”
McCarthy does not provide all of the answers regarding ALPRs. Additional clarity will ultimately come from future Court cases or new legislation to confer explicit privacy protection on data gathered by ALPRs and other caches of aggregated personal information. McCarthy already makes clear, however, that ALPR data can—and at a certain threshold does—trigger constitutional protections and the warrant requirement.
Jessie J. Rossman is a staff attorney at the American Civil Liberties Union of Massachusetts (ACLUM) and one of the authors of an amicus brief submitted in Commonwealth v. McCarthy on behalf of ACLUM, the Committee for Public Counsel Services, the Electronic Frontier Foundation, and the Massachusetts Association of Criminal Defense Lawyers.
by Caiti A. Zeytoonian
In McLean Hospital Corporation v. Town of Lincoln, 483 Mass. 215 (2019), the Supreme Judicial Court (SJC) held that emotional and social skills-based education falls within the scope of a Massachusetts statute that exempts educational land uses from local zoning laws. The case reaffirms that the protection afforded to educational uses under that statute—G.L. c. 40A, § 3, commonly known as the “Dover Amendment”—extends beyond traditional forms of education and includes uses that provide therapeutic or rehabilitative support in addition to a primary educational purpose.
The Dover Amendment provides, in relevant part:
No zoning ordinance or by-law shall . . . prohibit, regulate or restrict the use of land or structures for . . . educational purposes on land owned or leased . . . by a nonprofit educational corporation; provided, however, that such land or structures may be subject to reasonable regulations concerning the bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements. (emphasis added).
The law, enacted in 1950 in response to local zoning bylaws that prohibited religious schools within residential neighborhoods, was intended to provide special zoning status for religious and educational uses. Since the Dover Amendment’s inception, the SJC has interpreted the scope of “educational purposes” broadly. See, e.g., Fitchburg Hous. Auth. v. Board of Zoning Appeals of Fitchburg, 380 Mass. 869 (1980) (facility where formerly institutionalized adults resided while “being trained in skills for independent living, such as self-care, cooking, job seeking, budgeting, and making use of community resources” qualified as educational use); Gardner-Athol Area Mental Health Ass’n v. Zoning Board of Appeals of Gardner, 401 Mass. 12 (1987) (residential facility where adults with mental disabilities would be taught “daily living, as well as vocational skills, with the goal of preparing them for more independent living” served a primary educational purpose). These interpretations of the Dover Amendment were consistent with the SJC’s longstanding tradition of taking a broad view of the notion of ‘education’:
Education is a broad and comprehensive term. It has been defined as “the process of developing and training the powers and capabilities of human beings.” To educate, according to one of Webster’s definitions, is “to prepare and fit for any calling or business, or for activity and usefulness in life.” Education may be particularly directed to either the mental, moral, or physical powers and faculties, but in its broadest and best sense it relates to them all.
Mt. Hermon Boys’ Sch. v. Town of Gill, 145 Mass. 139, 146 (1887) (emphasis added). The McLean Hospital decision can be viewed as the latest in a long line of cases continuing this tradition.
The SJC’s Decision in McLean Hospital
The plaintiff, McLean Hospital (“McLean”), purchased land in the town of Lincoln for the purposes of developing a residential skills-based program for adolescent males with “emotional dysregulation,” known as the “3East Program” (the “Program”). Despite receiving initial approval for the Program’s development by Lincoln’s building commissioner, McLean faced opposition from Lincoln residents, who challenged the program before the local zoning board of appeals (the “ZBA”). Upon review, the ZBA decided that the Program was “medical or therapeutic,” as opposed to “educational,” in nature, and, thus, did not qualify for exemption from the town’s zoning laws under the Dover Amendment. McLean filed an action in Land Court to challenge the ZBA’s decision. Finding in favor of the ZBA, the Land Court judge held that the proposed use of land was not “for educational purposes,” due primarily to the fact that the Program focused on “therapeutic” inward-facing life skills rather than “educational” outward-facing life skills.
On appeal, the SJC considered whether the Program, which was “designed to instill fundamental life, social, and emotional skills,” qualified as “educational” for purposes of Dover Amendment protection. McLean, 483 Mass. at 217. Ultimately, the Court concluded that the proposed program and its skill-based curriculum, “although not a conventional educational curriculum offered to high school or college students,” fell “well within the ‘broad and comprehensive’ meaning of “educational purposes” under the Dover Amendment.” Id. at 216 (citation omitted).
The SJC reached this conclusion by applying a two-pronged test: (1) whether “the bona fide goal” of the use can reasonably be described as “educationally significant;” and (2) whether “the educationally significant goal [is] the primary or dominant purpose for which the land or structures will be used.” McLean, 483 Mass. at 220 (citing Regis College v. Weston, 462 Mass. 280, 286 (2012)) (internal quotation marks omitted).
Applying the first prong, the SJC considered the various aspects of the Program’s curriculum, which was to employ a “highly structured, nationally recognized, dialectical behavior therapy approach to attempt to develop social and emotional skills in students with severe deficits in these skills” and to feature a curriculum “taught in an experiential manner by specialists in clinical education.” McLean, 483 Mass. at 217, 219. The Program was to consist of instruction and practice in social and emotional skills focused in: (1) mindfulness and ability to pay attention; (2) emotional regulation; (3) development and maintenance of interpersonal relationships; (4) distress tolerance; and (5) validation, which the SJC described as “well-established areas where prior research has shown that training can be very effective.” Id. at 218. Ultimately, the SJC found that the Program would qualify as educationally significant, thereby upholding the longstanding notion that a program that instills “a basic understanding of how to cope with everyday problems and to maintain oneself in society is incontestably an educational process” within the meaning of the Dover Amendment. Id. at 221 (emphasis in original) (citation omitted).
Applying the second prong, the SJC rejected the Land Court’s characterization of the Program as predominately therapeutic, explaining that a skills development program does not lose its primary educational purpose simply because “the particular competencies taught also may be therapeutic, rehabilitative, or remedial of an underlying condition.” Id. Notably, the SJC rejected the defendants’ contention that the Program was not educational due to the presence of a psychiatrist on staff and the fact that “participants may be a threat to themselves or others, in light of some of their histories of thoughts of suicide or self-injurious behaviors.” Id. at 223. As the SJC explained, the concepts of education and rehabilitation are not mutually exclusive, and “an attempt to sever that which is educational from that which is therapeutic is ordinarily a rather futile exercise.” Id. at 225. Moreover, the SJC rejected the lower’s courts distinction between outward-facing and inward-facing life skills:
Both inward-facing and outward-facing types of skills, even assuming they can be meaningfully parsed in this manner, are part of “the idea that education is the process of preparing persons ‘for activity and usefulness in life’” and thus protected as a significant educational purpose under the Dover Amendment . . . . We also decline to adopt the judge’s parsing of distinctions between a “therapeutic” program to teach inward-facing life skills and an “educational” program to teach outward-facing life skills.
Id. at 224-25 (citations omitted).
Implications of the McLean Decision Moving Forward
Advocates for persons with disabilities have celebrated McLean as a significant victory in the fight towards securing equal access to education for all. The decision confirms that a determination of whether a proposed use has an educationally significant purpose should focus on the program itself, rather than the type of student participating in the program. In so doing, McLean makes it clear that education with a therapeutic purpose and education with a traditional academic purpose are both valid and meaningful forms of education that are equally entitled to benefit from the Dover Amendment.
While McLean has widely been regarded as a decision concerning specialized education for persons with disabilities, the case has important implications for traditional education as well. As public school curriculums continue to evolve towards the inclusion of emotional and behavioral learning, McLean should be viewed as a significant and powerful reminder of what our jurisprudence has long understood to be true: All students must be learners – not just of arithmetic and spelling – but of the capacity to behave and interact with self-awareness, self-regulation, and empathy for others. The SJC has long held that education is a “broad and comprehensive” term. Thus, the importance of McLean does not lie in the creation of new legal precedent, but in the deliverance of an impetus to align society’s understanding of what it means to educate a human being with that of our courts.
Caiti A. Zeytoonian is an Antitrust & Competition associate at Morgan, Lewis & Bockius LLP. She represents and advises clients in connection with federal and state government antitrust investigations, civil and criminal antitrust litigation, and antitrust compliance issues.
by Reyna M. Ramirez
Dangerousness hearings have huge stakes for defendants: if the Commonwealth proves by clear and convincing evidence that there are no conditions that can assure the safety of the community, a defendant can be incarcerated for up to 120 days in a district court case, or 180 days in a Superior Court case. G.L. c. 276, § 58A. However, pretrial detention based on “dangerousness” is counter-balanced by the presumption of innocence that undergirds our entire criminal justice system, and criminal defendants have recently mounted successful challenges to certain applications of the statute. This article reviews the challenges, the Supreme Judicial Court’s rulings, and responsive proposed legislation.
“Dangerousness” Hearings Under G.L. c. 276, § 58A
Under General Laws c. 276, § 58A, a court may order pretrial detention of a criminal defendant if the prosecution shows, by clear and convincing evidence, that no conditions of release will reasonably assure the safety of any other person or the community. But the Commonwealth can seek such pretrial detention only if the defendant is charged with: (a) one of several predicate enumerated crimes; (b) a misdemeanor or felony that involves “abuse” (the “abuse clause” of § 58A); (c) a felony that has as an element the use, attempted use, or threatened use of physical force against another (the “force clause”); or (d) a felony that, by its nature, involves a substantial risk that physical force against the person of another may result (the “residual clause”).
The abuse clause defines “abuse” with reference to the definition of abuse contained in Chapter 209A, that is, where the charged crime is against the defendant’s “family or household member,” including somebody who is or has been in a substantive dating or engagement relationship with the defendant, and involves: 1) attempting or causing physical harm; 2) putting others in fear of imminent serious physical harm; or 3) causing another to participate in sexual relations involuntarily through force, threat, or duress (i.e., rape).
The force clause focuses on whether the elements of the charged offense involve the use of force. A “categorical approach” is used to determine whether a non-enumerated felony qualifies as a predicate under the force clause. Commonwealth v. Young, 453 Mass. 707, 712 (2009). This approach assesses the elements of the felony “independent of the particular facts giving rise to a complaint or indictment.” Id. In other words, to determine whether a charge qualifies as a predicate under the force clause, the court asks not whether the defendant’s conduct involved the use of force, but rather whether the elements of the crime necessarily always involve the use of force.
Finally, the residual clause asks whether a felony “by its nature, involves a substantial risk that physical force against the person of another may result.” G. L. c. 276, § 58A.
Commonwealth v. Barnes / Scione v. Commonwealth
In January 2019, the Supreme Judicial Court ruled on the consolidated appeals of David Barnes and William Scione, each of whom had been detained following a finding of dangerousness under § 58A. Scione v. Commonwealth, 481 Mass. 225 (2019). Barnes was charged with statutory rape in violation of G.L. c. 265, § 23A, based on an allegation that he had sexual intercourse with a 15-year-old girl at a hotel after the two met online. Scione, on the other hand, was charged with using an incendiary device in violation of G.L. c. 266, § 102A, based on an allegation that he created a homemade improvised explosive device and placed it at the bottom of the driveway of his former girlfriend’s home (the record indicated that the device could have caused serious harm if it had not failed to explode). Neither of the charged crimes is an enumerated predicate charge under § 58A.
The SJC first ruled that statutory rape under § 23A is not a predicate charge under the force clause. Using the required categorical approach to analyze the elements of statutory rape under § 23A, the SJC observed that the crime requires proof that: (1) the defendant had sexual or unnatural intercourse with (2) a child between 12 and 16 years old where (3) there was a greater than 10-year age difference between the defendant and the child. Thus, force is not a required element of proof for statutory rape. The SJC noted that forcible rape of a child is its own crime under G.L. c. 265, § 22A, and that“[t]he fact that the Legislature saw fit to create two separate statutory rape offenses – one that includes the use of force and one that does not” – supported its decision to find there is no force element with respect to § 23A. Scione, 481 Mass. at 230. Justice Lowy wrote a separate concurrence “because such a counterintuitive result requires further discussion and consideration by the Legislature,” signaling to the Legislature to fix what he termed an “unfortunate” decision mandated “under the law as currently written.” Id. at 239.
The SJC next ruled that statutory rape under § 23A cannot be a predicate charge under the residual clause, because the residual clause is unconstitutionally vague. Scione, 481 Mass. at 230. To reach this conclusion, the SJC relied on the decisions of the United States Supreme Court in Johnson v. United States, 576 U.S. —, 135 S. Ct. 2551 (2015) and Sessions v. Dimaya, 548 U.S. —, 138 S. Ct. 1204 (2018) which, respectively, held that similarly-worded residual clauses in the federal Armed Career Criminal Act and the federal statutory definition of “crime of violence” were each vague because they failed to set out how to determine which crimes triggered the statute’s application. Noting that it had already followed Johnson in interpreting the Massachusetts Armed Career Criminal Act, see Commonwealth v. Beal, 474 Mass. 341 (2016), the SJC ruled that the residual clause of § 58A is unconstitutionally vague under Article 12 of the Massachusetts Declaration of Rights and, therefore, cannot be used to justify dangerousness proceedings in any case.
Turning to Scione’s case, the Court analyzed whether his charge of using an incendiary device under § 102A could trigger a dangerousness hearing under the abuse clause (which, the Commonwealth argued, applied because the alleged victim had previously been in a substantive dating relationship with the defendant). The Court held that, unlike the force clause, the abuse clause does not require use of the categorical approach. The SJC reached this conclusion in part because only one Massachusetts statutory crime—assault and battery on a household member (G.L. c. 265, § 13M)—explicitly includes abuse as an element. Id. at 236. Using statutory interpretation principles to presume that the Legislature intended to act logically, the Court opined that, “had the Legislature intended that only one crime be captured under the abuse clause,” it would have enumerated that crime rather than enact a separate “abuse” clause. Id. Instead, the SJC found, abuse “is best described as a characterization of an action or actions” and, therefore, a judge can look at the details of the defendant’s underlying conduct to determine whether the charge involves abuse. Id. Applying those principles to Scione, the SJC found that his alleged acts of placing a potentially-harmful IED on the property of his former girlfriend indeed involved abuse.
Commonwealth v. Vieira
The SJC’s decision in Barnes paved the way for its October 2019 decision in Commonwealth v. Vieira. 483 Mass. 417 (2019). There, the defendant was charged with indecent assault and battery on a child under 14 years old, in violation of G.L. c. 265, § 13B, based on allegations that he had engaged in sexual activity with a thirteen-year old boy he met online. Indecent assault and battery on a child under 14 is not an enumerated charge under § 58A, and the Commonwealth sought to treat it as a predicate charge under the force clause.
At the outset of its opinion, the SJC reminded practitioners that “pretrial detention is a measure of last resort,” and that the presumption of innocence always applies. Applying the categorical approach, the SJC observed that indecent assault and battery on a child under § 13B does not have statutory elements, but rather incorporates the common law definition of battery, including to the extent that an assault is simply a threatened or attempted battery. The SJC explained that, at common law, there were three types of battery: (1) harmful battery, involving touching with such violence that bodily harm was likely to result; (2) reckless battery, involving a wanton, willful, or reckless act that results in injury; and (3) offensive battery, requiring “only that the defendant, without justification or excuse, intentionally touched the victim, and that the touching, however slight, occurred without the victim’s consent.” Although the first two types, the SJC found, necessarily involve the use of physical force, offensive battery does not. And, because a court evaluating bail and pretrial detention does not look to whether the charged conduct involves harmful, reckless, or offensive battery, application of the categorical approach means that a statutory crime incorporating all three types of battery does not necessarily always include force. Applying those principles, the SJC concluded that indecent assault and battery under § 14B is not a predicate charge under the force clause of § 58A.
Two days after the SJC’s decision in Barnes, Governor Charles Baker submitted House Bill No. 66, An Act to Protect the Commonwealth from Dangerous Persons, which sought to change the dangerousness statute to include sex offenses involving children by adding those crimes – along with others – to § 58A’s list of enumerated crimes. This bill retains the force clause but completely removes the unconstitutional residual clause. Adding more enumerated crimes would have the effect of subjecting more individuals to dangerousness hearings and pre-trial detention. However, this approach does not address the issue that battery may not always include force, but commonly does. See, e.g., G.L. c. 265, § 13A (assault and battery). Instead, this legislation only addresses the specifics of the cases the SJC has adjudicated and misses an opportunity to draft legislation that looks forward and targets only the most dangerous of offenses and individuals.
Reyna M. Ramirez is a Partner at Ramirez and Sunnerberg, a criminal defense and prisoners’ rights practice on the South Shore. She is also an Associate at the firm J. W. Carney, Jr. and Associates, where she litigates complex criminal defense cases.
by Andrew Gambaccini
The Legislature enacted the Massachusetts Tort Claims Act (“MTCA”), G.L. c. 258, §§ 1 et seq., to replace a crazy quilt of judicially created exceptions to governmental immunity and provide a “comprehensive and uniform regime of tort liability for public employers.” Lafayette Place Associates v. Boston Redevelopment Auth., 427 Mass. 509, 534 (1998). Since its initial enactment, what has developed is a further set of immunity principles, exceptions to those principles, and exceptions to the exceptions to the principles that has led to uncertainty for courts and practitioners, which continues with the decision in Reid v. City of Boston, 95 Mass. App. Ct. 591, rev. denied, 483 Mass. 1102 (2019).
The Evolution of Governmental Immunity in Massachusetts
Historically, the Commonwealth and its political subdivisions enjoyed broad governmental immunity protections based upon common law principles. See Cormier v. City of Lynn, 479 Mass. 35, 37-38 (2018) (citations omitted). Over time, a convoluted landscape of judicial exceptions to governmental immunity developed, triggering a 1973 request from the SJC that the Legislature create a statutory scheme authoritatively detailing the contours of governmental immunity. See Morash & Sons, Inc. v. Commonwealth, 363 Mass. 612, 618-21 (1973). After a few years of legislative inaction, in 1977 the SJC made its intentions clear: it would abrogate governmental immunity following the 1978 legislative session if the Legislature did not take definitive action. See Whitney v. Worcester, 373 Mass. 208, 210 (1977).
The MTCA followed, allowing for limited governmental tort liability as well as setting out the procedures through which claims were to be presented and pursued. The statutory scheme provides generally that public employers are liable for the negligent or wrongful acts or omissions of public employees acting within their scope of employment, while public employees are shielded from personal liability for negligent conduct. G.L. c. 258, § 2. At the same time, several statutory exceptions to the general waiver of governmental immunity were created. See G.L. c. 258, § 10.
It was not long before case nuances again created interpretive difficulties. In 1982, the SJC applied the “public duty rule” to protect governmental units from liability unless a plaintiff demonstrated that a duty breached was owed to that plaintiff, and not simply to the public at large. See Dinsky v. Framingham, 386 Mass. 801 (1982). Within a short time, the SJC endorsed a “special relationship” exception to the public duty rule, permitting governmental liability where a governmental actor reasonably could foresee both an expectation to act to protect a plaintiff and the injury caused by failing to do so. See Irwin v. Ware, 392 Mass. 745 (1984). When subsequent judicial gloss through the “public duty-special relationship dichotomy” failed to produce “a rule of predictable application[,]” the SJC announced its intention to abolish the public duty rule altogether. Jean W. v. Commonwealth, 414 Mass. 496, 499 (1993) (Liacos, C.J. concurring); see also 414 Mass. at 514-15 (Wilkins, Abrams, J. concurring) and 523-25 (Greaney, J. concurring). The Legislature responded by amending the MTCA, most notably by adding six new § 10 exceptions, (e) through (j), to the general waiver of governmental immunity,modification that has done little to diminish the vexing complexities of governmental liability and immunity.
Reid v. City of Boston
Reid features the latest judicial foray into two of the knottiest statutory exceptions concerning governmental immunity, §§ 10 (h) and 10 (j). Plaintiff Reid received a call from her sister, during which the sister was heard asking someone to stop following her and why that person’s hands were behind his back. Knowing her sister had a troubled relationship with her boyfriend, Reid drove to her sister’s home, where she saw her sister’s boyfriend, Cummings. Reid engaged him in a conversation that was neither heated nor worrisome for Reid. As they spoke, Reid’s sister called 911 and reported that Cummings had threatened to kill her.
Three Boston police officers responded and came upon Reid and Cummings. The officers perceived the two to be speaking calmly, noted no injuries and saw no indication of either being armed, something both Reid and Cummings denied. As the inquiry continued, one officer approached Cummings from behind, suddenly grabbed him and reached for his waist, intending to frisk Cummings for weapons. Cummings pushed the officer away, drew a firearm from his waistband and opened fire. The officers returned fire. Cummings was killed, one officer was shot in the leg and Reid also was shot in the leg by Cummings.
Reid sued the officers and the City. The Superior Court dismissed the claims against the officers, but the negligence claim against City proceeded to trial. Reid claimed that the attempt to frisk Cummings created a harm that otherwise did not exist, escalating a controlled encounter into a shootout, and that such negligence caused her injury. By special verdict form, the jury found the City liable, concluding the police pre-shooting negligence was a substantial contributing factor in causing Reid’s injury. The City filed a motion for judgment notwithstanding the verdict, arguing that it was immune pursuant both to G.L. c. 258, § 10 (h), which, among other things, immunizes municipalities from claims based upon failure to provide police protection, and § 10 (j), which, in part, forecloses claims against a governmental agency based upon a failure to prevent violence by a third party not originally caused by a government actor. The Superior Court denied the motion and the City appealed.
The Appeals Court affirmed the denial of the motion, turning away both of the City’s § 10 arguments. As to immunity for failure to provide police protection under § 10 (h), the tip of the City’s spear was Ariel v. Kingston, 69 Mass. App. Ct. 290 (2007). Ariel involved a plaintiff who was a passenger in a motor vehicle approaching an intersection where police officers were directing traffic in the vicinity of an accident. Proceeding with a green light, the driver of the plaintiff’s vehicle entered the intersection while contemporaneously an officer waved, against a red light, another vehicle into the intersection, leading to a collision. The Ariel Court determined that the town was immune pursuant to § 10 (h) because controlling traffic was a form of police protection to the public.
Analyzing the § 10 (h) exception in Reid, the Appeals Court stated that, while § 10 (h) “shields municipalities from claims where police officers negligently failed to prevent harm posed by third parties[,]” Reid’s “successful theory of liability was not that the police officers failed to protect her from a threat, but rather that the officer’s affirmative conduct created a danger that did not previously exist.” Reid distinguished Ariel by noting the officers directing traffic were providing police assistance to mitigate a dangerous condition while, in Reid, the officers encountered a calm situation and it only was police action that created the danger.
Concerning immunity for the failure to prevent violence by third parties not originally caused by government actors under § 10 (j), Reid avoided the intensely problematic determination of whether the officers’ actions “originally caused” Reid’s injury, instead drawing on a statutory exception to this immunity. Specifically, the Appeals Court found that subsection § 10 (j) (2)’s exception to immunity applied because the officer’s intervention had “place[d] the victim in a worse position than [s]he was in before the intervention[.]” In broad stroke, Reid concluded that the City could be liable because its officer had engaged in an “affirmative act” that contributed materially to create the danger from which the plaintiff sustained injury.
It long has been difficult to chart a predictable course through the statutory and judicial landscape of governmental immunity. Reid’s interpretation of § 10 (h) adds another layer of complexity to this area of law. While Ariel involved an officer engaging in the affirmative act of waving a car into a police-controlled intersection, there was no municipal liability in that case because the circumstance was “dangerous” however municipal liability existed in Reid because a police response to a 911 call featuring an allegation of domestic assault somehow took place in “calm” conditions. Further, because Reid passed on its opportunity to clarify §10 (j), including, for example, a discussion of factors relevant to determining whether the officers’ actions were the original cause of injury, §10 (j) remains a morass of cascading exceptions to the MTCA’s general waiver of immunity.
Cummings was armed and prepared to shoot. If he had fired before any attempt at a frisk, there seems little doubt that the City could not have been found liable. That Cummings made his choice to shoot after an officer tried to frisk him for purposes of weapon detection and disarmament rendered the City liable for Cummings’ shooting of Reid. In the last analysis, Reid’s interpretation of §§ 10 (h) and 10 (j) leaves the principles of governmental immunity as it found them – a complex, nuanced and often confusing “process of defining the limits of governmental immunity through case by case adjudication.” Whitney, 373 Mass. at 209-10.
Andrew Gambaccini is an associate at Reardon, Joyce & Akerson, P.C., where he focuses his practice in civil rights and the defense of law enforcement officers.
Student Disciplinary Proceedings Revisited: A Responding Party is Not Entitled to “Quasi-Cross-Examination” in Private School Disciplinary ProceedingsPosted: February 19, 2020
by R. Victoria Fuller
Until recently, a key procedural issue in disciplinary proceedings administered by educational institutions—whether the responding party was entitled to conduct cross-examination—remained unclear in Massachusetts and the First Circuit. A pair of recent First Circuit decisions provide some clarity for Massachusetts public and private institutions, respectively. First, in Haidak v. University of Massachusetts-Amherst, 933 F.3d 56 (1st Cir. 2019), discussed in the Fall issue of the Boston Bar Journal, the First Circuit Court of Appeals addressed the obligations imposed by the Due Process Clause of the Fourteenth Amendment on public educational institutions in disciplinary proceedings. There, the Court held that the responding party did not have a right to cross-examine the reporting party or other adverse witnesses in such proceedings, even where credibility was at issue, and that a public educational institution could implement a non-adversarial, “inquisitorial” system without violating the federal Due Process Clause so long as the educational institution adequately questioned the reporting party.
Most recently, in John Doe v. Trustees of Boston College, 942 F.3d 527 (1st Cir. 2019), the First Circuit addressed the same issue, but in relation to disciplinary proceedings in private educational institutions. As discussed below, the responding party argued that he was entitled to real-time examination of the reporting party and adverse witnesses through a neutral—or as the First Circuit called it, “quasi-cross-examination.” The Court rejected that argument. It held that private school proceedings are governed by state law, not the federal Due Process Clause, and that applicable Massachusetts contract law did not recognize a right of cross-examination.
The Complaint and Disciplinary Proceedings
In John Doe, the disciplinary proceeding was triggered by a complaint by a female student that a male student—the responding party—had sexually assaulted her. The complaint was governed by the university’s Student Sexual Misconduct Policy (the “Policy”), which established the university’s procedure for the adjudicating sexual misconduct complaints. Under the Policy, sexual misconduct complaints were to be investigated by one (or more) internal or external investigators. The Policy did not permit either party to cross-examine the other party or adverse witnesses.
In the case of John Doe, once the investigators completed the investigation, they prepared a written report. Applying a preponderance of the evidence standard, the investigators found that several of the responding party’s statements lacked credibility, or failed to support his defense that the sexual contact at issue was consensual, and concluded that the responding party had violated the Policy. Based on the investigators’ findings and conclusions, the university imposed an immediate one-year suspension on the responding party.
After exhausting his appeals at the university, the responding party sued in the District of Massachusetts, seeking an injunction staying his suspension. The responding party argued that he was entitled to a form of real-time examination, including:
- Contemporaneous questioning by a “neutral” (who may be a hearing officer or an investigator) of both the reporting party and the responding party (though not necessarily in the same room);
- Disclosure of the exact statements of the adverse party in real time; and
- The opportunity to submit questions to the neutral, either orally or in writing, to be put to the other party.
The District Court agreed, and granted the requested injunction, thus staying the responding party’s suspension. The university appealed.
Private School Disciplinary Proceedings Are Governed by State Law
The First Circuit disagreed and vacated the injunction. The Court held that Massachusetts private schools are not obligated to provide any form of cross-examination, let alone the “real-time examination” sought by the responding party (and which the First Circuit referred to as “quasi-cross-examination”).
The Court explained that Massachusetts private school disciplinary proceedings are not governed by the federal Due Process Clause, but instead by applicable Massachusetts contract law. See 942 F.3d at 529. In Massachusetts, courts use two analyses to determine whether a private institution has breached its contract with a student: (1) whether the reasonable expectations of the parties have been met; and (2) whether the procedures implemented by the school were conducted with “basic fairness.” Id. at 533-34. First, the Court rejected the responding party’s argument that he reasonably expected he would be afforded the opportunity to conduct a form of quasi-cross-examination. Nothing in the Policy’s detailed procedures provided any basis for such an expectation.
Second, the Court stated that Massachusetts concept of “basic fairness” does not require quasi-cross-examination. “Basic fairness” requires only that a public institution act in good faith and on reasonable grounds, and that its decision must not be arbitrary and capricious. See Coveney v. President & Trs. of The Coll. of The Holy Cross, 388 Mass. 16, 19 (1983); Driscoll v. Bd. of Trs. of Milton Acad., 70 Mass. App. Ct. 285, 295 (2007). The Court also clarified that its recent decision in Haidak v. University of Massachusetts-Amherst was inapplicable: Boston College was neither a public university nor a government actor, and therefore was not subject to the federal Due Process Clause. The Court also noted that the Massachusetts Supreme Judicial Court had specifically held in Schaer v. Brandeis University, 432 Mass. 474 (2000) that the obligations imposed by basic fairness on private institutions were not equivalent to those imposed by the federal Due Process Clause on public institutions, and Massachusetts state courts had not recognized quasi-cross-examination as an obligation imposed by the basic fairness requirement.
Perhaps anticipating that its decision in John Doe would not be the final word on the matter, the First Circuit concluded that “whether Massachusetts in the future will wish to redefine the requirements of contractual basic fairness in college and university discipline matters poses important policy choices for the Supreme Judicial Court and/or state legislature to make.” Id. at 536.
With its decision in John Doe, the First Circuit clarified the distinction between the obligations imposed on public educational institutions by the federal Due Process Clause, and those imposed by Massachusetts contract law on private schools.
Importantly, the First Circuit also noted that “[f]ederal courts are not free to extend the reach of state law.” 942 F.3d at 535. While no previous Massachusetts case has held that “basic fairness” includes a right to cross-examination in private school disciplinary proceedings, the right of cross-examination in both public and private school disciplinary proceedings has become a hot topic across the country. Indeed, the law is rapidly evolving, and not always cohesively. Compare Haidak v. University of Massachusetts-Amherst, 933 F.3d 56 (2019) (holding no absolute right to cross-examination in public institution disciplinary proceedings) with Doe v. Baum, 903 F.3d 575, 582-3 (6th Cir. 2018) (recognizing a right to cross-examination in public institution disciplinary proceedings).
Perhaps not surprisingly, then, after the case was remanded by the First Circuit, lawyers for John Doe requested that the District of Massachusetts certify to the Massachusetts Supreme Judicial Court the question:
[W]hether basic fairness, implied in the contract between a student and a college or university, requires an opportunity for parties in a college or university disciplinary process, to have their questions put to each other and witnesses in real time, even if only through a neutral person, particularly in matters that involve credibility determination, such as the Title IX investigatory setting.
See Civ. A. No. 1:19-cv-11626-DPW, Dkt. 73. The District of Massachusetts has postponed any potential certification until after summary judgment practice. One way or the other, given the recent changes and clarifications in this area of the law, we can expect unsatisfied responding parties in private school disciplinary proceedings to continue to raise the issue in Massachusetts courts until the Supreme Judicial Court directly addresses it.
Victoria Fuller is an attorney at White and Williams LLP. Her practice focuses on insurance law, employment law, and general commercial litigation.
 “Basic fairness” applies not only to colleges and universities, but to all private educational institutions. See, e.g., Discol v. Bd. of Trs., 70 Mass. App. Ct. 285, 295 (2007) (applying “basic fairness” standard to disciplinary proceedings in private school that admitted students from kindergarten through grade twelve).