Personal Reflections on the Life and Legacy of Justice Rudolph Kass
by Chief Justice Mark V. Green
Voice of the Judiciary
How can I attempt to capture the legacy of my good friend and former colleague, Justice Rudy Kass? It is a daunting assignment: to offer words on behalf of one of the most colorful and talented wordsmiths ever to serve on a Massachusetts appellate court. Rather than try to use my words to do him justice, I will, for the most, part allow his words to speak for themselves, with a couple of personal memories added for good measure.
I first met Rudy Kass, and Helen, in the fall of 1997, as we took our seats in a shuttle bus from the airport in Great Falls, Montana to the hotel where our little group would stay before launching a canoe trip down the upper Missouri River, retracing a portion of the Lewis and Clark journey described in Steven Ambrose’s Undaunted Courage. It was one in a series of back country excursions organized by Superior Court Judge Paul Chernoff and, just four months into my time as a trial judge in the Massachusetts Land Court, I was most fortunate to be included among four other veteran Superior Court judges, and Rudy. I was as nervous as a teenager at a high school dance, which is the only explanation I can offer for my ill-advised choice to initiate small talk by praising an opinion by Supreme Judicial Court Justice Charles Fried in the case of Goulding v. Cook. I did not know that Rudy had authored the Appeals Court opinion in the same case, and that Justice Fried’s soaring rhetoric reversed the conclusion Rudy and the Appeals Court had expressed. It is a testament to Rudy’s good nature and graciousness that, despite that awkward beginning, he took me under his wing and mentored me throughout my judicial career, and became a beloved friend.
My experience with Rudy was built principally around our work as judges. We bonded over a shared love of what we both called “dirt law.” Real estate is always about location, and each location has its own story. With his background as a newsman, Rudy was particularly expert at seeing and telling those stories in ways that spoke to lawyers and lay readers alike, breaking down subtle and complex legal concepts into terms that anyone could understand. But he also invariably added a level of color often absent from appellate caselaw. I have my own list of favorites among his opinions, but there are many other contenders.
In Allen v. Batchelder, 17 Mass. App. Ct. 453 (1984) for example, he explained the concept of ouster – the doctrine by which one fractional owner of property may extinguish the interest of another – by telling the story from an unusual perspective, opening the opinion with the following unforgettable line: “Sebastian, the tobacco chewing sheep, would have been disconcerted by this appeal.” He went on to explain how Sebastian symbolized the open and obvious – and longstanding – occupation the Allen family had made of the farm they claimed now to own, free of any fractional interest held by the distant heirs of a former cotenant.
In the field of real estate law in particular, Rudy was legendary. On the sometimes murky question of when parties became bound during their progression from an offer to purchase to full agreement, Rudy offered a simple and pragmatic, but also evocative, framework for the preliminary stages of negotiation in Goren v. Royal Investments, 25 Mass. App. Ct. 137 (1987): “There is commercial utility” he observed, “in allowing persons to hug before they marry.”
On a question of interpretation of a noncompetition covenant in a lease, in Kobayashi v. Orion Ventures, 42 Mass. App. Ct. 492 (1997), he discussed the essential nature of a delicatessen, including a footnote recounting the classic comment by the proprietor of the Carnegie Deli in New York following a robbery: “Idiots! They took the money and left the pastrami!” By the way, should you be tempted to follow this lead to read the full opinion, I also commend to you footnote 9, which illustrates the circular logic of an argument by reference to Gilbert and Sullivan.
Rudy’s style was such that his hand was obvious even in a brief rescript opinion, issued without authoring attribution. When I opened the daily advance sheets on the morning of April of 2000 and saw the opening line of Commonwealth v. Buzzell, 49 Mass. App. Ct. 902 (2000), I knew immediately who had written it. The case involved a challenge to the sufficiency of the evidence supporting conviction under a statute requiring removal of dogs whose barking caused a nuisance. The defendant argued that there was no proof that the dogs who provoked the complaint were the same as those who remained on his property on the date he was arrested for failing to remove them. Rudy’s opinion opens as follows. “Sometimes a dog’s bark can be as bad as its bite.” Continuing, he explains that “The answer to the defendant’s ‘at least one identical dog’ argument is that [the statute] recognizes the fungibility of barking dogs. The mischief to be corrected is excessive barking and whether the source of the barking on the premises is Fang or Fido is not of the essence.” Rudy was surely one of the most visible members of the Appeals Court in its history, and remains one of those most often cited.
Rudy also was notable for his continuing engagement in the wider community. While the Code of Judicial Conduct does not prohibit judges from engaging in their communities, the limitations often cumulatively, over time, induce many long-serving judges to follow the path of least resistance and withdraw, at least somewhat. But not Rudy – he remained active in more social clubs than I knew to exist, and contributed generously on a wide variety of charitable boards. His visibility in our wider community was not merely a product of the prominence of his judicial writings.
As I came to know Rudy, I also came to know Helen. Theirs was an inspiring and continuing romance. It was evident in even the most casual observation of the two of them together – and they were almost always together – how intertwined they were. They demonstrated a comfortable and gentle intimacy, based on mutual respect, that was a model of what a marriage can be.
When I think of the attributes that most describe Rudy, three come to mind: optimism, curiosity, and adventurousness. Combined, the three capture his openness to new ideas, to new ways of doing things, and to new friends. He is an iconic figure in the Massachusetts judiciary, but his legacy extends beyond his work to the personal connection he made with so many. As a giant in the judiciary, and as a friend, he is greatly missed.
The Honorable Mark V. Green was appointed Chief Justice of the Appeals Court by Governor Charles D. Baker on December 6, 2017, having served on the Court as an Associate Justice since his appointment by Governor Jane M. Swift on November 1, 2001. He holds a Bachelor of Arts degree in philosophy from Cornell University, with distinction in all subjects, and is a 1982 cum laude graduate of Harvard Law School. He is a former member of the Board of Editors of the Boston Bar Journal.
Appreciation of Associate Justice Kass
by Paul G. Rozelle
When I walked into Justice Kass’s chambers, I saw a manual typewriter evidencing recent use; a prominently displayed x-ray of something broken (the result, I would later learn, of a grand [mis]adventure); and a trim man perched behind a desk adorned with papers bearing hand-edits, several well-used books, and a Leica camera. Justice Kass’s rolled-up shirt sleeves revealed muscular forearms. This guy looks fifty, tops, I thought, yet he was due to retire the year I hoped to clerk for him. Justice Kass believed bouts of intellectual exercise should be punctuated by regular physical activity.
My interview was a grand tour through the law, history, Gilbert and Sullivan, and, of course, travel, sailing, cycling, hiking, and skiing. The conversational whirlwind that marked our initial meeting would be reprised throughout the year. Discussion about an opinion-in-progress would frequently turn to other, diverse subjects about which Justice Kass held deep knowledge and a desire to learn more.
A hand-written note greeted the first day of my clerkship, resting atop several recently published opinions from justices whose craft Justice Kass commended to my study. He had annotated one from then-Associate Justice Margaret Marshall, “This is what an opinion should look like.” That writing well requires reading good writing would be regularly reinforced by referrals not only to exceptional judicial opinions, but to articles from Harper’s, The Atlantic, and The New Yorker.
Opinions are the stock-in-trade of appellate decision-making. Clerking for Justice Kass was not just a tutorial in how to produce engaging writing, but in how judges decide cases. Persuasive advocacy is foremost an exercise in storytelling and Justice Kass’s opinions — ingots borne of the crucible of zealous advocacy — were famously works of memorable prose. While Justice Kass imparted several maxims of good writing (opinions must not start with The or This and, to this day, I avoid clearly and obviously), good writing broadly meant painting a vivid picture for the reader. The key to the right decision, he counseled, was fully understanding and communicating the facts.
Justice Kass’s remarkable writing was founded on sound judgment and that, I learned, came not just from command of the record and an inquisitive mind, but, most critically, from empathy, compassion, and respect for those before the court. On one occasion I was tasked with retrieving a bank surveillance videotape from the trial court record. To arrive at a good decision — meaning, not merely correct, but just — about whether the trial judge erred in admitting lay opinion testimony that the defendant was the person depicted in the video, Justice Kass wanted to see the video himself. Justice and fairness sometimes requires getting and watching a videotape the parties omitted from the appellate record. Another case involved a confession of error by the Commonwealth. That should be the end of it, I naively thought, oblivious to my forthcoming assignment to research whether an appellate court must accept a confession of error. See Commonwealth v. Montalvo, 50 Mass. App. Ct. 85, 87 (2000) (“The Commonwealth’s confession of error has heft, but does not relieve us of our duty to determine independently whether an error was, in fact, committed.”).
Most remarkable, especially to a freshly minted law school graduate, was that Justice Kass earnestly wanted to know what I thought. He treated everyone as an equal and was a keen listener. “I already know what I think,” he told me early on, “I want to know what you think.”
Justice Kass sincerely meant this. In a case where the panel was undecided on the result, Justice Kass, as the senior member, assigned it to himself. “You write it one way, I’ll write it the other,” he playfully instructed me, mollifying my mild terror. Soon after submitting my effort, I received a copy of the memo he had written, sharing not only his draft, but mine, too, with the panel. My “opinion” garnered no votes, but it merited a lunch invitation from Justice Benjamin Kaplan, who was then serving on the Appeals Court as a recall justice. That his clerk’s (wrong, but intriguing) approach earned his own teacher and mentor’s approval made Justice Kass beam.
As winter arrived, I was summoned to his chambers. “I hear you like to ski,” Justice Kass began, “and so we shall have to find a time.” He looked up from his calendar, “But it will have to be on a weekday.” Justice Kass paused before adding, “Skiing on the weekend is uncivilized.” A few weeks later, I found myself skiing several inches of undisturbed Tuesday-morning powder as Justice Kass schussed down the slope, yodeling. Yes, yodeling.
Indeed, the most enduring lesson Justice Kass imparted was to have fun and stay grounded and focused, not just in one’s writing, but, more importantly, in life. Inspired by his family, and most especially by his wife, Helen — who provided an extra measure of mentoring, support, and grace to his clerks’ lives — Justice Kass did just that. Dayenu (it would have been enough), but Justice Kass also gave us a canine worth fighting over, Commonwealth v. Eaton, 11 Mass. App. Ct. 732 (1981), a nicotine-addled ovine, Allen v. Batchelder, 17 Mass. App. Ct. 453 (1984), and a heightened acuity for processed bovine, Kobayashi v. Orion Ventures, Inc., 42 Mass. App. Ct. 492 (1997). Rudy, we miss your wit, charm, grace, and yes, even your yodeling.
Paul G. Rozelle is the Managing Senior Counsel for the Pinellas County, Florida Sheriff’s Office. He clerked for Associate Justice Rudolph Kass during the 1999-2000 term.
Preventing, Reporting, and Responding to Sexual Violence on College Campus – Landmark New Legislation in MassachusettsPosted: November 3, 2021
by Paul G. Lannon, Jr.
The Massachusetts Campus Sexual Violence Act
On January 12, 2021, Governor Charles Baker signed the Campus Sexual Violence Act (CSVA), landmark legislation addressing sexual violence on all college and university campuses in the Commonwealth. See G.L. c. 6, §§ 168D and 168E. The new law, which took effect on August 1, 2021, is the state’s version of Title IX of the Education Amendments of 1972 (“Title IX”). Title IX prohibits sex discrimination, including sexual assault and harassment, in programs and activities at higher education institutions receiving federal aid, and contains additional provisions that focus on preventing, reporting, and responding to sexual assaults and other forms of sexual violence. While the CSVA overlaps with various aspects of Title IX and other federal laws, it imposes further obligations discussed below.
The CSVA applies to public and independent institutions of higher education that are physically located in Massachusetts and have degree-granting authority. Institutions that are online-only, non-degree granting, or located only in other states are not affected. The Massachusetts Department of Higher Education (DHE) issued implementing regulations at 610 C.M.R. 14.00, which took effect on August 20, 2021.
The CSVA applies to “sexual misconduct,” defined broadly to encompass rape, sexual assault, and other forms of sexual violence. While courts have interpreted Title IX to prohibit discrimination based on sexual orientation, gender identity, or gender expression, the CSVA expressly prohibits misconduct based on those personal characteristics. Sexual misconduct for purposes of the CSVA also includes domestic violence, dating violence, and stalking – categories of misconduct and crime specified in the federal Violence Against Women Act, as amended.
The CSVA and its implementing regulations impose new obligations on Massachusetts colleges and universities, most notably, to conduct a campus climate survey every four years, implement specific student and employee training programs, enter into a memorandum of understanding with local law enforcement, and submit an annual report to state authorities.
Periodic student surveys
Covered institutions will need to survey all students at least every four years regarding specified campus safety topics. The survey topics extend well beyond the established federal reporting requirements under the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act of 1990, 20 U.S.C. §1092(f) (Clery Act). Institutions will need to survey students not only about instances of sexual misconduct and the circumstances under which they occurred, but also about students’ awareness of institutional policies and procedures, the advice and guidance students received, demographic information, and “perceptions” of campus safety and “confidence” in the institution’s efforts at protection.
A diverse task force, authorized by the CSVA, will develop model questions and recommendations to provide institutions with direction and guidance on effective means for conducting the required surveys. The task force is expected to publish model survey questions and recommendations no later than January 1, 2022. Institutions may develop and use their own surveys, provided they are designed to obtain the data required by the CSVA, meet the quality standards established by the Commissioner of Higher Education, and include a certain subset of model questions. Summaries of survey results must be posted on the institution’s website. There is, as yet, no guidance on what actions, if any, institutions should or must take in response to survey results.
Student and employee training
Covered institutions must provide new students and employees with comprehensive training on sexual misconduct prevention, identification, reporting and response, within 45 days of their matriculation or employment. The training must cover applicable civil rights laws, the role of drugs and alcohol, reporting channels, anonymous methods of reporting, complaint resolution procedures and the range of sanctions, confidential resources, bystander intervention, and risk reduction. Anyone responsible for implementing any part of a sexual misconduct complaint process must also satisfy rigorous training or experience requirements in subject matters that include interviewing witnesses, consent, the impact of drugs and alcohol, the effects of trauma, sensitivity, disabilities, and due process.
One aspect of the required training for responsible officials is the inclusion of cultural competence. Officials must be trained on cultural competence to understand how sexual misconduct may impact people differently depending on their backgrounds. G.L. c. 6, § 168E(n)(v). It is unclear what cultural competence training will or should encompass. Cultural competence is not defined in the CSVA or the regulations, nor is it part of the Title IX regulatory scheme.
MOU with local law enforcement
Covered institutions are now obligated to contact local law enforcement and attempt in good faith to adopt a memorandum of understanding (MOU) about their respective roles and responsibilities concerning incidents of sexual misconduct on and off campus. G.L. c. 6, § 168E(c); 610 C.M.R. 14.03. Institutions must contact each municipal or state law enforcement agency with jurisdiction on or around the campus. Exact boundaries are not defined, which suggests that institutions should be over inclusive when deciding which law enforcement agencies to contact. Institutions may enter into a single MOU with multiple agencies.
The regulations prescribe the content of each MOU, which “shall” contain primary points of contact, methods for notifying the district attorney’s office, protocols and standards for information sharing, delineation and description of respective jurisdictions including cross-jurisdictional and multijurisdictional responses, and the institution’s responsibilities and procedures under Title IX and other applicable laws. With respect to the last item, presumably institutions may simply refer to their published sexual misconduct prevention and complaint policies, but it is not clear from the regulations whether additional information is necessary.
The DHE will publish on its website whether institutions are in compliance with the MOU requirements. Compliance status will be updated at least annually. Institutions should notify the DHE if any published information is incorrect.
Most colleges and universities are already obligated under the Clery Act to publish a campus security report each October that includes data on crimes occurring on or adjacent to their properties with names and other personally identifiable information removed. 20 U.S.C. § 1092(f)(1). The CSVA adds to those reporting obligations. By December 1 of each year, covered institutions must submit to the DHE the number of sexual misconduct reports, reports that were investigated, students and employees found responsible and not responsible, and the disciplinary actions imposed. The DHE will prescribe the form and manner for submitting such data.
Law enforcement MOUs must be sent to the DHE along with the institution’s annual report. Institutions are required to list all the law enforcement agencies with jurisdiction on or around their campuses and to certify that they have either entered into a legally compliant MOU with each agency or else have determined that an MOU is “infeasible” for that year. The DHE regulations do not specify who must provide the certification, nor the form or manner by which to submit the certification to the DHE. Further guidance from the DHE is expected prior to the initial December 1 deadline.
In determining whether an MOU is feasible in a given year, institutions may consider various factors, specifically including whether law enforcement refuses to cooperate or fails to respond in a timely manner to reasonable requests from the institution, and whether despite good faith efforts the parties cannot finalize terms that are compliant with the institution’s legal obligations. Infeasibility determinations must be reported to the DHE with the annual report and must contain “a summary of and attestation to the institution’s good faith efforts” toward obtaining an MOU. The regulations do not specify who should sign the attestation or what form it should take, but institutions are well advised to maintain detailed records of all efforts to secure an MOU and any responses from law enforcement agencies.
What We Have Seen Before
Not everything in the CSVA is new. Indeed, much of the act is duplicative of Title IX — covered institutions must adopt, implement, and publish accessible policies on sexual misconduct that include prevention measures, confidential and other support resources, and complaint resolution procedures. To avoid conflicts, the new state law requirements are to be interpreted “consistent with federal law and regulation” presumably Title IX, the Clery Act and other applicable laws.
Like Title IX, complaint resolution procedures under the CSVA must provide detailed written notice of the alleged misconduct, presume the respondent is not responsible, provide parties with equal access to evidence from the investigation, prohibit the parties from directly cross-examining the other, permit the parties to have advisors (who may be attorneys) present for any meetings or disciplinary proceedings, provide equal opportunities for appeal if appeals are afforded, and include a written outcome notice within seven days after the disciplinary process is completed. Noticeably absent from the CSVA is the controversial provision in the recently published Title IX regulations requiring live hearings to resolve complaints, nor does the CSVA prescribe a standard of evidence that must be applied, in contrast to the Title IX regulations which permit institutions to choose either the preponderance of the evidence standard or the clear and convincing evidence standard.
The CSVA policy and procedure requirements are comprehensive and should be scrutinized. Of particular note are the following provisions:
- Policies must “comport with best practices and current professional standards,” which implies an obligation to monitor developments in this area from year to year.
- Institutions are obligated to advise students about their options for medical or emergency support, assistance from crisis centers or other counseling services, interim protective measures, protection through law enforcement or the courts, as well as complaint resolution procedures.
- Institutions must provide amnesty from disciplinary sanctions to students who report sexual misconduct, unless their report was not made in good faith or their own misconduct was “egregious” which includes jeopardizing the health and safety of others.
- Institutions must designate at least one confidential resource provider, who is subject to specific training requirements and detailed confidentiality obligations.
- Policies and procedures concerning sexual misconduct reporting and investigation must be emailed to all students and employees by August 20 each year. Before sending these emails, institutions should ensure with legal counsel that their policies and procedures comply with current state and federal requirements.
The CSVA also has more specific notice requirements than Title IX, particularly for websites. Websites must include the sexual misconduct policies and procedures, the annual campus security report required by the Clery Act, timely warning and emergency notification information as required by the Clery Act, contact information for the Title IX Coordinator and confidential resource provider, medical and “rape kit” resources as well as transportation options, and contact information for a 24-hour hotline for sexual misconduct information.
What’s To Come
The CSVA contains no definitions of consent, affirmative consent, or revocation of consent; consequently, Massachusetts institutions retain flexibility to define those terms in their own sexual misconduct policies and procedures. Whether DHE regulations will attempt to define those terms is an open question.
Further guidance is expected from the DHE and other state agencies over the next several months regarding the form and manner for submitting MOUs, certifications, feasibility reports and annual reports. After initial submissions, institutions should also expect requests for additional information and documentation as compliance standards develop. Institutions are advised to check the DHE’s website regularly for updates.
Efforts at preventing and remedying sexual violence have had varying degrees of success on campuses nationwide. The CSVA is the first attempt by a state to address the problem through comprehensive legislation. The law imposes substantial new compliance obligations on colleges and universities in Massachusetts. Whether it will help or hinder institutional efforts remains to be seen and will depend in large part on how the law is interpreted and enforced by state agencies.
Paul G. Lannon, Jr. is a partner at Holland & Knight where he co-chairs the firm’s national education law practice. He is the former co-chair of the BBA’s College and University Section and is the editor of the College and University Law Manual (MCLE 2021 edition).
Massachusetts Appellate Courts Must Do More To Protect Young Black People from Unreasonable Police IntrusionPosted: November 3, 2021
by Eva Jellison
No Massachusetts case has explicitly incorporated the combined effects of the race and age of a juvenile in its legal analysis. There are some cases that recognize the impact of a defendant’s youth and others that recognize the effects of societal racism. See, e.g., Commonwealth v. Perez, 480 Mass. 562 (2018) (non-homicide youth sentencing); Commonwealth v. Warren, 475 Mass. 530 (2016) (inference to be drawn from the flight of a Black man from police in an urban area). But there is undoubtedly something lost in not recognizing that youth and race can combine in a manner not adequately addressed by separate analyses. Recently, in Commonwealth v. Evelyn, 485 Mass. 691 (2020), the SJC missed an opportunity to incorporate this compound effect into its Article 14 search and seizure jurisprudence.
Article 14 of the Massachusetts declaration of rights provides protection against unreasonable search and seizure: “Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions.” The SJC has repeatedly interpreted Article 14 to be more protective than the analogous Fourth Amendment to the U.S. Constitution. See, e.g., Evelyn, 485 Mass. at 697; Commonwealth v. Stoute, 422 Mass. 782 (1996) (point of seizure). Seizure occurs when a reasonable person would believe that she is not free to leave a police interaction. Evelyn, 485 Mass. 696. The police may only legally seize someone whom they have reasonable suspicion to believe has committed, is committing, or is about to commit a crime. Id. at 704.
In Evelyn, the SJC declined to incorporate the combination of race and youth into its Article 14 jurisprudence, despite extending its recognition of the relevance of race and youth separately. Tykorie Evelyn was a seventeen-year-old boy at the time he was seized and pat frisked by Boston police officers. He was about a half mile away from a shooting that had occurred thirteen minutes earlier, he refused to engage with officers, and he made three movements that the officers identified as consistent with gun possession. Id. at 694–95. He made two arguments that relied on the combination of his youth and race: (1) that consideration of whether someone would feel free to leave must take into account the combination of the defendant’s age and race, and (2) that turning away from officers (labelled “blading”) should have been viewed as a nervous behavior informed by Tykorie’s race and youth, rather than relied upon as a characteristic of an armed gunman. An amicus curiae brief submitted by the Charles Hamilton Houston Institute for Race & Justice of Harvard Law School and the NAACP Legal Defense & Education Fund also alerted the Court to these issues.
As to Tykorie’s first argument, the SJC incorporated youth, drawing from J.D.B. v. North Carolina, 564 U.S. 261 (2011), which held that youth was relevant to the custody analysis under Miranda v. Arizona, 384 U.S. 436 (1966). The SJC noted that J.D.B. addressed an inquiry similar to the point-of-seizure analysis: whether “an individual has been compelled to interact with the police.” Evelyn, 485 Mass. at 698.
But the SJC declined to allow Tykorie’s blackness to add to the analysis. Id. at 700. More specifically, the SJC “agree[d] that the troubling past and present of policing and race are likely to inform how African-Americans and members of other racial minorities interpret police encounters.” Id. at 701. But the Court concluded that including race in the seizure analysis intruded upon the ability to “maintain an objective standard so that officers can determine in advance whether the conduct contemplated will implicate the Fourth Amendment or art. 14.” Id. at 702. In so doing, the SJC “attempt[ed] to focus attention on the issue of race, while not establishing bright-line rules that potentially could do more harm than good.” Id. at 703. It appears that the harm the SJC sought to avoid was imputing a particular set of life experiences and beliefs formed from those experiences to an individual with a different set of experiences and beliefs. Id. at 702–03, quoting United States v. Easley, 911 F.3d 1074, 1081–82 (10th Cir. 2018) (noting that members of racial categories do not all share the same experiences and beliefs).
This reasoning is unsatisfying. First, it appears to conflict with the Court’s prior reasoning in Warren, which it extended in Evelyn. In Warren, the SJC held, without any invocation of federal law, that any type of “nervous or evasive behavior” by a Black person in an urban area must be “significantly discount[ed].” Evelyn, 485 Mass. at 709. This is because “a long history of race-based policing likely will remain imprinted on the group and individual consciousness of African-Americans for the foreseeable future.” Id. at 708. Rather than looking to the Fourth Amendment seizure analysis to decide whether to incorporate race into the Article 14 seizure analysis, it would have been more consistent for the SJC to apply the analysis of race that it had previously adopted in Warren and maintained in Evelyn.
Second, by adopting age as a factor, but not race, the SJC missed an opportunity to “ensure that the justice provided to African-Americans is the same that is provided to white Americans.” Ralph D. Gants, et al., Letter from the Seven Justices of the Supreme Judicial Court (June 3, 2020). Primarily,
[e]xperience suggests that a child’s race would have as much impact on a child’s perception of whether he was free to leave as would his age. Throughout American history, blacks have had a tenuous relationship with police. In every critical era—slavery, Jim Crow, lynching, and the contemporary era of mass incarceration—blacks have perceived police to be proponents of discrimination and subordination through violence and intimidation. Today, it is difficult to imagine any black person who is immune from the persistent national coverage of police-on-black killings.
Kristin Henning, THE REASONABLE BLACK CHILD: RACE, ADOLESCENCE, AND THE FOURTH AMENDMENT, 67 Am. Univ. L. Rev. 1513, 1530 (2018). And, because of this history, “Black families have long been proactive in transmitting norms on dealing with the police to their children.” Id. at 1531. Further, children, and specifically Black children, are policed both in their schools and on their streets. Id. “These experiences, combined with developmental features of adolescence, leave black youth particularly vulnerable to the psychological pressures of police presence. As such, black youth are even less likely than other youth and adults to believe they are free to leave and decline police contact.” Id. at 1532–33.
Indeed, Black and brown children live in a different Massachusetts than white children. Data provided to CPCS by the Department of Youth Services indicated that, as of April 23, 2021, eighty-two percent of the children detained, confined, or committed did not identify as white. In the last ten years, Boston Police Department data indicate disproportionate stops of Black men, Evelyn, 485 Mass. at 700 n. 6 & 7, a trend which continued even during the unprecedented COVID-19 pandemic during which 30% fewer stops occurred than the previous year. Tori Bedford, While Boston Police Street Stops Decrease, Black People Are Still Stopped The Most, GBH News (April 18, 2021). A recent report about the City of New Bedford revealed that “[p]olice are clearly targeting young Black males[.]” We are the Prey; Racial Profiling and Policing of Youth in New Bedford, Citizens for Juvenile Justice (April 2021). Further, “[i]n Massachusetts, black female students are roughly 3.9 times more likely to be disciplined than their white counterparts.” Protecting Girls of Color from the School-To-Prison Pipeline, Appleseed Network (2019) (analyzing data from the 2015-16 school year). And the data from the 2018-19 school year evinces racial disparity in school discipline across communities with large populations of Black and brown children. These data indicate that race should be broadly considered in criminal law analyses.
Further, ignoring race but accepting age as relevant to the seizure analysis will only exacerbate the racial disparities in the juvenile system. People, including police officers, see Black children as older than they actually are. Phillip Atiba Goff, et al., The Essence of Innocence: Consequences of Dehumanizing Black Children, 106(4) Journal of Personality and Social Psychology 526, 532 (2014) (4.53 years older for Black boys suspected of felonies). This can mean that, unlike children of different races, Black children would lose the protection afforded by Evelyn well before they become adults and well before their white counterparts, perhaps as young as 13 or 14. Id. Evelyn is only helpful in reflecting young people’s developmental status when officers know or should know that these children are under the age of eighteen. Evelyn, 485 Mass. at 700 (not considering Tykorie’s age because he was six feet tall and his features were obscured by clothing and darkness).
The SJC’s rejection of Tykorie’s second argument was implicit. Nowhere in its “Evidence of a Firearm” section does the SJC mention the word race. Evelyn, 485 Mass. at 705–08. But the opportunity was there. At oral argument, Justice Kafker queried whether the police would have been able to stop a 75-year-old man, or a 75-year-old woman in the same circumstances. Implicit in Justice Kafker’s question is the idea that older people and women are less likely to be involved in crime, or at least less likely to be in possession of a firearm, and that assigning criminality to a seemingly innocent act might therefore be unreasonable as applied to an old man or woman.
Justice Kafker was on to something – but as applied to race in addition to age and gender. Social psychologists have observed that Black boys are perceived as less innocent than their white and Latino counterparts. See generally Atiba Goff, supra. Thus, when an officer sees the actions of a Black boy (or someone he perceives to be a Black boy), the officer could be seeing criminality simply because the boy is young and Black. This is especially important in the reasonable suspicion analysis, because officers frequently testify that things that a white woman in her thirties does all the time – clutching an object in her pocket on a cold day, adjusting her pants, or checking to see if her cellphone, which may be too big to fit in her pocket, is securely in her waistband – are an indication of firearm possession.
“[S]urely a stop based on race is an unreasonable seizure under art. 14,” Commonwealth v. Long, 485 Mass. 711, 754 (2020) (Budd, J., concurring), and the SJC is right to be concerned about how to apply an objective standard. It is very difficult to assess how an officer’s implicit (or explicit) bias may have operated in any given situation. But that does not mean that the appellate courts cannot or should not help to ensure that Black children are not stopped, grabbed, and harmed because of that bias. Warren and Evelyn provide a helpful framework for incorporating societal realities about race into legal analysis.
Additional solutions also exist. A recent dissent by Justice Milkey suggested that courts could increase the burden on the Commonwealth and police officers to demonstrate that the conclusions from their observations have robust non-race-based underpinnings. Commonwealth v. Karen K., 99 Mass. App. Ct. 216, 233 n.16 (2021) (Milkey, J., dissenting). For example, the Commonwealth could provide evidence of training based on scientific methodology, and not the mere recitation of talismanic words. Or the Commonwealth could provide an “empirical basis for judging the accuracy of [the officer’s] predictive abilities,” such as information about the percentage of persons stopped on suspicion of firearm possession who actually possessed a firearm. Id.
The SJC may have missed an opportunity in Evelyn, but the door remains open to move away from analyses that disproportionately burden Black children and strive toward more equal justice.
This article is dedicated to the late Chief Justice Ralph Gants for teaching Attorney Jellison to seek justice and treat people well.
Eva Jellison (she/her) is a criminal defense attorney and partner at Wood & Nathanson, LLP. She primarily represents adults and juveniles in appellate, post-conviction and post-adjudication matters.
by Emily C. Shanahan
On September 3, 2021, the Supreme Judicial Court (“SJC”) issued its decision in Shaw’s Supermarkets, Inc. v. Melendez, 488 Mass. 338 (2021) (“Melendez”). In Melendez, the SJC considered the scope of the tolling provision set forth in its Third Updated Order Regarding Court Operations Under the Exigent Circumstances Created by the COVID-19 (Coronavirus) Pandemic, No. OE-144 (June 24, 2020) (“Third Emergency Order”). The parties disputed whether the Third Emergency Order tolled only those civil statutes of limitations that expired during the period March 17, 2020, through June 30, 2020, or all civil statutes of limitations, irrespective of when they expired. The SJC held that the use of the word “all” in the Third Emergency Order encompassed all civil statutes of limitations, not only those expiring during the period between March 17, 2020, and June 30, 2020. In short, “‘[a]ll’ means all.” Melendez, 488 Mass. at 342. As a result, the SJC affirmed the denial of the defendant’s motion to dismiss because the plaintiff’s complaint was timely filed.
The complaint in Melendez alleges that on September 3, 2017, the plaintiff, Margarita Melendez, suffered injuries arising from an accident caused by an employee of the defendant, Shaw’s Supermarkets, Inc., in one of the defendant’s grocery stores. The plaintiff filed an action for negligence in the District Court on September 24, 2020. The defendant moved to dismiss the complaint, arguing that it was untimely under the three year statute of limitations applicable to negligence claims, Mass. Gen. Laws ch. 260, § 2A. The District Court denied the motion to dismiss because the complaint was timely filed under the tolling provision of the Third Emergency Order. The defendant sought emergency relief under the SJC’s superintendence authority pursuant to Mass. Gen. Laws ch. 211, § 3. The single justice reserved and reported the petition to the full SJC.
In its brief to the SJC, the defendant argued that the language of the Third Emergency Order was clear and unambiguous: It tolled civil statutes of limitations set to expire between March 17, 2020, and June 30, 2020. According to the defendant, the SJC did not intend to add 106 days to all civil statutes of limitations, including those set to expire after June 30, 2020. In contrast, the plaintiff argued that the plain meaning of the language of the Third Emergency Order was that all civil statutes of limitations were tolled, irrespective of when the statute of limitations was set to expire.
Like the parties, the SJC began its analysis with the language of the Third Emergency Order: “[a]ll civil statutes of limitations were tolled by Prior SJC Orders from March 17, 2020, through June 30, 2020.” The SJC agreed with the defendant to the extent the SJC also concluded that the phrase “[a]ll civil statutes of limitations” was “clear and unambiguous.” Melendez, 488 Mass. at 342. Relying on dictionary definitions of the word “all,” the SJC explained that the plain meaning of the word “all” in the Third Emergency Order “encompasse[d] each and every civil statute of limitations, not just those where the statutory period of limitation expired between March 17, 2020, and June 30, 2020.” Id.
As further support for its interpretation, the SJC contrasted the language of the Third Emergency Order relating to the tolling of civil statutes of limitations with language in other provisions of the order which expressly stated that only those deadlines expiring between March 17, 2020, and June 30, 2020, were tolled. That is, the SJC observed that it knew how to use language to limit the effect of its tolling orders in the manner advanced by the defendant. The use of different language with respect to civil statutes of limitations demonstrated the SJC’s intent that the tolling provision was not limited to civil statutes of limitations expiring during the period between March 17, 2020, and June 30, 2020. Moreover, the SJC rejected the proposition that the example in the Third Emergency Order illustrating the application of the tolling provision demonstrated an intent to limit the reach of the tolling order to statutes of limitations expiring during the relevant window.
In its conclusion, the SJC observed that “at least some of [the defendant’s] reasoning may be attributable to a misconception of the reference to the ‘statutes of limitations’” in the Third Emergency Order. Melendez, 488 Mass. at 345. The SJC sought to correct the misconception, explaining that “[a] statute of limitations does not refer to the date on which the cause of action expires, but, rather, to the period during which a legal proceeding may be initiated.” Id. (citation omitted). The SJC further noted that the term “toll” means “‘to stop the running of.’” Id. (citation omitted). To be consistent with the meaning of those terms, the SJC concluded that the language of the Third Emergency Order necessarily included “all causes of action for which the relevant limitations period ran for some period between, or through, those dates.” Id.
Going forward, practitioners will need to examine carefully how the decision in Melendez affects the calculation of the expiration of the statute of limitations in any given case. For causes of action which accrued on or before March 17, 2020, and for which the statute of limitations had not yet expired as of that date, an additional 106 days should be added to the limitations period, counting from March 17, 2020. For causes of action which accrued between March 17, 2020, and June 30, 2020, the number of days between the accrual date and June 30, 2020, should be added to the limitations period, counting from the date of accrual. Causes of action which accrued after June 30, 2020, do not benefit from any tolling under the Third Emergency Order because no part of the limitations period ran during the relevant period.
Looking Ahead – Other Issues On The Horizon
In Melendez, the SJC cited, but not did examine, the sources of its authority to issue the Third Emergency Order, including, among others, its rule making authority and superintendence authority under Mass. Gen. Laws ch. 211, § 3. In another appeal currently pending before the SJC, Podium Developer LLC v. Graycor Construction, Inc., SJC No. 13142, the Court has been asked to examine the scope of its superintendence authority under Mass. Gen. Laws ch. 211, § 3 with respect to the tolling of other statutory deadlines. In particular, the SJC granted direct appellate review to answer the reported question of whether the Court’s emergency orders tolled the statutory period for the filing of a Notice of Contract with the Registry of Deeds under Mass. Gen. Laws ch. 254, § 2, the Mechanics Lien Statute. The Superior Court answered that question in the affirmative, concluding that because the tolling orders did not “supersede” the statutory deadlines, they fell within the SJC’s superintendence authority. The defendant/appellant argues that the Superior Court erred by failing to consider the fundamental issue, namely, the SJC’s superintendence powers under Mass. Gen. Laws ch. 211, § 3 do not extend to matters lacking a “nexus” to the SJC’s superintendence of inferior courts or the administration of the judicial system. The defendant/appellant argues that because the Mechanics Lien Statute lacks the necessary nexus, the application of the SJC’s tolling orders to the deadlines set forth in the statute violates separation of powers. Oral argument is currently scheduled for December 6, 2021.
Emily C. Shanahan is a partner and chair of the litigation department at Tarlow, Breed, Hart & Rodgers, P.C. Ms. Shanahan is an experienced litigator, handling a broad range of complex business and commercial disputes, including contract disputes, partnership disputes, and real estate litigation. Ms. Shanahan has served on the steering committee of the BBA’s Business and Commercial Litigation Section.
by John A. Bello
Voice of the Judiciary
My appointment as Court Administrator took place amid several crises –a raging pandemic and a racial reckoning, as well as a charged political discourse across the country. While these crises affected daily lives at the courthouse and at home, the court system saw them as an opportunity to learn about individual differences as we advanced our systems to improve how courts worked during the pandemic to ensure accessibility for the public. The tremendous challenges we now face cannot be handled by any one person, but as members of the court system, we can use all of our experience to move the Trial Court to the next level.
The Trial Court family has been tested by the ongoing pandemic but that has not slowed the progress we are making as a system. Our judges, elected officials, and staff have given beyond their best to ensure that we continue delivering justice. I would like to take this opportunity to thank them for their many sacrifices during the pandemic. Judges, Clerks and Registers Offices, Probation, Security and Facilities staff have gone above and beyond to keep our doors open. I would also like to thank those who partnered with us along the way to keep the justice system running. It was not an easy task but collaborating broadly made it possible.
Trial Court Chief Justice Paula Carey and I have an ambitious agenda that is outlined in our Strategic Plan 3.0. I am confident that we can accomplish these goals by being inclusive and recognizing the many contributions made at all levels of this organization. Transparency and collaboration with internal and external stakeholders will help us focus and deliver on the important work we face today and moving forward. In my experience, collaboration always results in a better solution to any issue.
Technology Enables Access to Justice
Where do we start? We must build on the Court’s progress during the pandemic. Today, we find ourselves in a better place technologically than we were in a year ago, which expands our options for serving the public and makes it easier for those who work and practice in our courts. As devasting as it has been, the pandemic has accelerated our strategic initiatives. We must keep this momentum going as we recover from the most challenging impacts of the pandemic and resume business in a “new normal.” Our staff has demonstrated resilience, creativity, and commitment, and as leaders we must ensure that we support them along the way.
Access to justice and the court user experience are our top priorities as we aim to have systems in place to deliver justice for ALL. Concurrently, we need to better understand how users experience the system and to act swiftly on issues raised by users and by our staff.
Investment in technology at this historic juncture is critical. We must provide judges and staff with the tools they need to do their jobs in a digital world. eCourts must be our collective priority along with sufficient staffing so we can modernize how we work and serve the public. A $164 million IT Bond Bill now in the legislature sets a roadmap for the investments needed to build a 21st century court system. This bond bill represents an access to justice imperative to ensure that members of the public have access to our courts – whether in person or from home.
During the pandemic, virtual registries were created, as eFiling and eNoticing expanded to modernize access to justice. For example, the Probate Court developed a pilot with the Department of Revenue and, since October, has heard 300 child support cases per week via Zoom, and has heard 1,000 uncontested divorce cases using the same method. Post-pandemic, we will build upon these innovative, user-friendly solutions that positively impact thousands of lives.
Racial Justice Requires New Mindset
As a justice system, we also must deal head-on with racial justice issues and the problem of systemic racism. We need to be able to have conversations affecting people of color and develop system-wide practices that recognize and combat racism. The Trial Court cannot tolerate injustice of any kind and we are fully committed to this work. Court leaders must ensure that the system treats court staff, attorneys and the public with dignity and respect. As individuals, we must broaden our mindset and continue learning about others, engaging constructively to ensure that everyone is represented at the table. Representation does matter.
This is a personal issue for me. I came from the Dominican Republic 30 years ago to face the challenges of bias and discrimination from some, as well as support and encouragement from others. In my experiences at the Trial Court, I have witnessed how diverse representation can create an inclusive, supportive organization that can better address the needs of colleagues and the public we serve.
The unsettling events of 2020-2021, including the passing of Supreme Judicial Court Chief Justice Ralph Gants, left many with no place to turn with their distress. The Trial Court established a Trauma Task Force, which helped support those needing assistance on how best to deal with the uncertain world around them. We facilitated many discussions regarding the pandemic, racial reckoning, and political unrest nationwide. As co-chair of this highly committed group, I hope to expand training to help judges and staff deal with the traumatic events to which they are regularly exposed.
We plan to engage the broader justice community to help us not only create a trauma-informed workforce, but also a trauma-informed justice system. We have engaged with One Mind at Work, the Institute for Health Recovery, as well as Riverside Trauma Center to ensure our system has the resources available to understand and deal with trauma and mental health issues.
Organizational Development Through Skills and Data
Post-pandemic, we will refocus on fostering a high performing organization with clear goals and expectations, as well as providing our staff with career development opportunities through training and networking. Our Human Resources department and Judicial Institute are finding new ways to support individual skill-building and advancement. Technology again is key.
Over the years, I have relied heavily on data to make informed decisions. Data quality and consistency are essential for the Trial Court to move forward. Accurate data allows local courts to assess their work and provides the public with the tools to help understand what courts do and why. Accurate data entry and collection represent another critical issue for the Trial Court and our justice partners. Together, we must find new ways to aggressively tackle this challenge.
There is much to accomplish but I know that with continued support from Trial Court staff, elected officials, judges, and the Bar we will expand on the current momentum. I want to understand your challenges and hear your ideas for improving the system. I look forward to building relationships with partners in justice across the state to collaboratively deliver on the Trial Court’s one mission: Justice with Dignity and Speed.
The Supreme Judicial Court appointed John A. Bello to a five-year term as Court Administrator for the Massachusetts Trial Court as of March 1, 2021. In 2017, Bello became Associate Court Administrator after serving as the Director of Facilities Management and Capital Planning since 2013.
Morse v. Ortiz-Vazquez: Preserving “the Opportunity to Meaningfully Present Claims and Defenses” in a Summary Process Action When the Tenant Does Not File a Timely AnswerPosted: November 3, 2021
by Ilana B. Gelfman
In Morse v. Ortiz-Vazquez, 99 Mass. App. Ct. 474 (2021), the Massachusetts Appeals Court considered a case in which a tenant appeared for a summary process trial after failing to file a timely answer. Uniform Summary Process Rule 3 requires a tenant to file his or her answer “no later than the first Monday after the Monday entry day.” Yet the tenant, Jorge Ortiz-Vazquez, was pro se at the time his answer was due and did not meet the deadline.
The Appeals Court determined that the trial court should have permitted Mr. Ortiz-Vazquez to file a late answer and to raise affirmative defenses against eviction. The Appeals Court explained that to “correctly balance the legitimate interests of both parties,” a trial court must consider the “substantial prejudice to the tenant arising from the denial of his statutory right to present an affirmative defense.” Ortiz-Vazquez, 99 Mass. App. at 485. If the trial court had properly balanced the parties’ interests, it would have permitted Mr. Ortiz-Vazquez to raise all applicable defenses against eviction.
A Common Circumstance
Mr. Ortiz-Vazquez’s situation was far from exceptional. In summary process cases decided by the Housing Court in Fiscal Years 2019 and 2020, respectively, 91.3% and 91.5% of defendants appeared pro se. Housing Court Department, Fiscal Year 2019 Statistics, Commonwealth of Mass., https://www.mass.gov/doc/2019-housing-court-self-represented-represented-litigants-by-court-location/download; Housing Court Department, Fiscal Year 2020 Statistics, Commonwealth of Mass., https://www.mass.gov/doc/2020-housing-court-self-represented-represented-litigants-by-court-location/download. In general, “the vast majority of tenants in the Housing Court proceed without the benefit of counsel.” Adjartey v. Cent. Div. of Hous. Ct. Dep’t, 481 Mass. 830, 838 (2019).
This poses a serious challenge for the average tenant. Litigating pro se is extremely difficult—and especially so in summary process cases. Summary process cases move quickly. “[F]ewer than seven weeks might elapse between the time that the defendant is served with a notice to quit and the time that he or she is removed from his or her residence.” Id. at 837. Further, summary process cases are “complex.” Id. They are governed by a “web of applicable statutes and rules,” including the Uniform Summary Process Rules, the Massachusetts Rules of Civil Procedure, the summary process statute (G.L. c. 239), and other procedural and substantive laws. Id. at 836-37. “Deciding when to apply which of these rules—and how to resolve inconsistencies among them—is . . . a formidable challenge for an unrepresented litigant seeking to comply with fast-moving deadlines, especially when that litigant is also facing the stress of a potential eviction.” Id. at 837.
Under Uniform Summary Process Rule 3, a tenant’s answer is due before the first court date, when the tenant is least likely to have received any assistance (even limited advice) from an attorney. It is no surprise, then, that the vast majority of summary process defendants do not manage to file a timely answer. For instance, in March 2019 (the month Mr. Ortiz-Vazquez’s case was filed), there were 1,804 cases filed in the Housing Court Department in which the defendant did not default, and in 1,499 of those cases (83%), the defendant appeared without having filed a timely answer. Brief of Amicus Curiae City Life/Vida Urbana in Support of Defendant Appellant Jorge Ortiz-Vazquez and Requesting Reversal at 33-34, Morse v. Ortiz-Vazquez, 99 Mass. App. Ct. 474 (2021). Mr. Ortiz-Vazquez, then, was not at all unusual in missing the deadline. Tenants do so more often than not.
Litigation at the Housing Court
When Mr. Ortiz-Vazquez appeared in court—only three days after the deadline for filing his answer had passed—he filed a motion requesting permission to file a late answer. Mr. Ortiz-Vazquez, a native Spanish speaker, explained that he had not filed a timely answer because he “did not have any help due to [his] langu[a]ge problems,” but that he wished to raise an eviction defense based on ongoing mold and mildew issues in his apartment. Ortiz-Vazquez, 99 Mass. App. Ct. at 476. The Housing Court denied the motion. Id. at 476-77.
The Housing Court’s reasoning was rooted in an earlier eviction action brought against Mr. Ortiz-Vazquez by his landlord. In that earlier case, Mr. Ortiz-Vazquez had failed to file a timely answer, and the Housing Court had granted him leave to file his answer late. Id. at 475. He had then prevailed after raising a defense based on the mold and mildew in his apartment. Id.
Based on that prior case, the Housing Court believed that Mr. Ortiz-Vazquez should have known to file his answer by the deadline when his landlord brought a second summary process action. Id. at 476-77. The Housing Court denied Mr. Ortiz-Vazquez’s motion to file a late answer. Id. at 476. And the Housing Court went further, ruling at trial that the absence of an answer meant that Mr. Ortiz-Vazquez “was precluded from asserting affirmative defenses.” Id. at 478. The Housing Court “said that the tenant was free to pursue his conditions-based claims in an independent action,” but that he could not pursue them as a defense to the pending summary process action. Id. at 477.
In so ruling, the Housing Court denied Mr. Ortiz-Vazquez an important defense to eviction—and precluded him from utilizing a crucial tool for ensuring compliance with the State Sanitary Code. In 1965 the Legislature enacted G.L. c. 239, § 8A, which “grants the tenant the right to withhold rent in order to aid effective enforcement of State Sanitary Code regulations.” Boston Hous. Auth. v. Hemingway, 363 Mass. 184, 191-93 (1973). After early efforts to vest enforcement of the State Sanitary Code solely in public agencies proved ineffective due to lack of resources, “[t]he statute’s authorization of rent withholding ‘was [intended] to provide a tenant with [a] means of enforcing the state sanitary code or local health regulations, but without the necessity for a timid tenant to initiate court proceedings.’” Id. at 193-94 (quoting 52 Mass. L.Q. 205, 228). Under the statute, a tenant like Mr. Ortiz-Vazquez can withhold rent due to bad conditions and then raise a conditions-based counterclaim and defense to any resulting eviction for nonpayment of rent. The counterclaim and defense reflect “the public policy of Massachusetts,” which “strongly favors the safety and habitability of homes.” Trustees of Cambridge Point Condo. Trust v. Cambridge Point, LLC, 478 Mass. 697, 707 (2018).
By preventing Mr. Ortiz-Vazquez from raising affirmative defenses, the Housing Court effectively denied him the right to withhold rent and defend himself based on bad conditions, as he had done in the prior eviction action (based on the same mold and mildew that he stated still plagued his apartment). The Housing Court also precluded him from raising any other applicable affirmative defenses, from retaliation to breach of the warranty of habitability to unlawful discrimination. Mr. Ortiz-Vazquez was unable to defend himself at trial, and the Housing Court entered judgment in favor of the landlord. Ortiz-Vazquez, 99 Mass. App. Ct. at 478.
Vacatur by the Appeals Court
The Massachusetts Appeals Court vacated the judgment against Mr. Ortiz-Vazquez. Id. at 486. In doing so, the Appeals Court provided guidance to tenants, landlords, and trial courts alike.
The Appeals Court rejected the test that the Housing Court applied to deny Mr. Ortiz-Vazquez’s motion: “that the tenant knew or should have known about the need to file a timely answer.” Id. at 484. The Appeals Court agreed that this was “an appropriate consideration,” but nonetheless held that the Housing Court had abused its discretion because it had failed to “balance the procedural unfairness to the landlord against the substantial prejudice to the tenant arising from the denial of his statutory right to present an affirmative defense.” Id. at 484-85. Properly balanced, “the prejudice to the tenant far outweighed any inconvenience to the landlord.” Id. at 485. The prejudice to the landlord if the Housing Court had granted the tenant’s motion would have been minimal. Id. By contrast, the denial significantly prejudiced the tenant, and “[p]rohibiting the tenant from asserting affirmative defenses to eviction and to the landlord’s claim for back rent . . . [wa]s inconsistent with the legislative intent behind the statutory scheme and public policy.” Id. at 482.
The Appeals Court also considered and rejected the landlord’s contention that “defenses [that] are not properly raised pretrial” in an answer “must be waived at the trial if objected to by landlords.” Id. at 485 n.25. The Appeals Court explained that Uniform Summary Process Rule 5, which governs counterclaims, “states that the consequence of failing to file a counterclaim with the answer constitutes waiver ‘unless the court shall otherwise order on motion for cause shown.’” Id. at 481 (quoting Uniform Summary Process Rule 5). By contrast, “Rule 3, which governs answers, is silent as to the consequence of the failure to file a timely answer.” Id. at 480-81. The Appeals Court reasoned that “[b]ecause the drafters set forth in the rules a consequence for the failure to assert a counterclaim, but not a consequence for the failure to file an answer, it follows that the right to assert affirmative defenses is not waived when an answer is not filed.” Id. at 481.
The logic of the Uniform Summary Process Rules reflects the reality of litigation in Housing Court. “Residential tenants facing eviction are rarely sophisticated, knowledgeable, or prepared to navigate the legal system. They view an eviction, where they are unrepresented, as an opportunity to show up in court and simply tell the judge their story.” Id. at 485 n.25 (quoting G. Warshaw, Massachusetts Landlord-Tenant Law § 8:10 (Supp. 2020)). Thus, “the doctrine of waiver is disfavored in the Housing Court.” Id. at 485 n.25.
The reasoning in Ortiz-Vazquez will apply in most summary process cases where a tenant fails to file a timely answer. The prejudice to the tenant arising from the preclusion of his or her defenses will almost always outweigh any inconvenience to the landlord.
That said, the Appeals Court did not decide if “[t]here may be circumstances where a judge may justifiably deny the tenant’s motion to file a late answer and bar the tenant from raising affirmative defenses to eviction (such as when the judge permits the tenant to file a late answer and he fails to do so, when there is an egregious delay in filing an answer, or when the affirmative defenses raised by the tenant amount to unfair surprise).” Id. at 482. Mr. Ortiz-Vazquez’s case was ordinary, and the Appeals Court did not reach whether the result might be different in extraordinary circumstances.
In such circumstances, one possible rule that might control is Uniform Summary Process Rule 10, which provides: “If the defendant appears but has failed to file a timely answer, no default shall enter.” Mr. Ortiz-Vazquez argued that barring affirmative defenses amounts to a prohibited “default,” and the Appeals Court gave some credence to the argument by acknowledging that “[t]he prohibition on defaults in the rule and the concomitant right to trial on the merits—without any qualifying language—demonstrates an intent to allow tenants to defend evictions on any available basis.” Ortiz-Vazquez, 99 Mass. App. Ct. at 481. Ultimately, however, the Appeals Court declined to “address the tenant’s claim that the [Housing Court] defaulted him in violation of Rule 10(a) of the Uniform Rules of Summary Process.” Id. at 486 n.27. In the future, a court might consider whether barring affirmative defenses amounts to a default—and whether Rule 10 prohibits such a bar even in an extraordinary case.
In an extraordinary case, a court might also reconsider the landlord’s argument regarding waiver. Although “waiver is disfavored in the Housing Court,” id. at 485 n.25, the doctrine might apply where a tenant has done something more than failing to file a timely answer when he or she had reason to know of the deadline. A court might also consider whether, in an exceptional case, striking an affirmative defense would be appropriate as a sanction. In addition, if it is ever appropriate to bar an affirmative defense, then courts might examine whether all defenses are treated equally or whether certain defenses—such as a domestic violence defense under the Violence Against Women Act or a reasonable accommodation claim under anti-discrimination statutes—might be raised as a matter of right, regardless of whether the circumstances would warrant barring other defenses.
“[P]residing over cases involving pro se litigants can be challenging, not least because ‘[w]hile judges must apply the law without regard to a litigant’s status as a self-represented party, our courts have recognized that self-represented litigants must be provided the opportunity to meaningfully present claims and defenses.’” Id. at 479 (quoting I.S.H. v. M.D.B., 83 Mass App. Ct. 553, 560-61 (2013)). This challenge arises again and again in summary process actions, where the rules are complex, the litigation is fast-paced, and the majority of defendants proceed pro se. In Ortiz-Vazquez, the Appeals Court determined that by missing the deadline for filing an answer, a tenant does not thereby relinquish the right to raise his or her defenses. Practitioners will be watching carefully to see if this decision is a harbinger of a broader trend of case law ensuring that tenants have the “opportunity to show up in court and simply tell the judge their story.” Id. at 485 n.25 (quoting G. Warshaw, Massachusetts Landlord-Tenant Law § 8:10 (Supp. 2020)).
Ilana B. Gelfman is a Senior Attorney at Greater Boston Legal Services, where she focuses on housing issues and appellate litigation. Prior to working at GBLS, Ilana was a law firm partner, a federal judicial clerk, and a legal services attorney.
by Heidi Alexander, Filippa Marullo Anzalone, Laurie Cappello
In 2017, multiple nationwide studies on the well-being of lawyers and law students culminated in the release of a report from the National Task Force on Lawyer Well-Being (Task Force Report). The Task Force Report highlighted distressing data indicating that lawyers suffer from depression, anxiety, and substance use at rates higher than the general population. It concluded that the legal profession was at a tipping point and presented recommendations and action plans for building a more positive future. Following the release of this landmark document, the Massachusetts Supreme Judicial Court formed an initial Steering Committee on Lawyer Well-Being to investigate, report on, and issue recommendations regarding the state of lawyer well-being here in Massachusetts. That work led to the release of the Steering Committee’s 2019 Report, available at https://www.mass.gov/doc/supreme-judicial-court-steering-committee-on-lawyer-well-being-report-to-the-justices/download. The Report included several recommended actions with respect to legal practice, legal education, and the administration of law in order to mitigate the serious physical, mental, and financial well-being challenges faced by present-day Massachusetts attorneys, judges, and law students. In January 2020, implementation of those recommendations began to move forward under the direction of the SJC Standing Committee on Lawyer Well-Being, an eighteen-member committee representing nearly every legal sector in the Commonwealth.
Now, fast forward to 2021, a year after the COVID-19 pandemic began, shaking up every industry and impacting individuals across the globe. It will come as no surprise that five years after the seminal 2017 studies, the data on well-being in the legal profession has not changed much. In fact, a recent peer-reviewed study as well as an ABA study found that women lawyers are considering an exodus from the legal profession due to the pandemic as well due to mental health problems, burnout, or stress. Other recent studies have found higher rates of suicide and suicide ideation among attorneys; higher stress among attorneys of color on account of their race and ethnicity; and that stigma continues to pervade the profession with large numbers of lawyers that say they cannot discuss well-being issues with their employer without worrying it will damage their career or livelihoods.
Despite this data, it is not all doom and gloom for the legal profession. The increased awareness of well-being in the legal profession has paved the way for rethinking how to make positive organizational and culture changes, and how to reduce stigma around seeking help and self-care. In June 2021, the Standing Committee published a statement on “Recommendations for Legal Workplaces Post-Pandemic,” calling on legal employers to seize this opportunity to rethink norms, structures, and policies that will benefit everyone in the workplace and create a culture of inclusion. Massachusetts is fortunate to have not only the strong support of the SJC to move this work forward, but also a cadre of well-being pioneers, innovators, and leaders throughout the profession advocating for change to improve the profession. To support the great efforts of so many across the Commonwealth, the Standing Committee created a Legal Well-Being Network to share resources, ideas, and best practices. The foregoing discussion captures the work of two members of the Legal Well-Being Network and leaders in this space, Filippa Marullo Anzalone, a Professor and Associate Dean at Boston College Law School and Laurie Cappello, Mintz’s first Director of Well-Being. Professor Anzalone’s work bears out some of the aforementioned concerns around well-being in the profession through real stories conducted via student interviews, thus creating awareness of well-being before those students enter the profession. Inaugural Well-Being Director Laurie Cappello shares the well-being work at Mintz as an example of the progress being made by some forward-thinking legal employers.
Connecting Legal Education to the Legal Profession
Four years ago, Professor Anzalone designed a course at Boston College Law School called Mindfulness & Contemplative Practices for Lawyers, as a direct response to the National Task Force Report. One significant course assignment has students interview a practicing attorney about work-life integration and attorney well-being programs that their respective law offices provide. The following stories are a sampling of some of the content gleaned from these one-on-one interviews.
Overall, many interviewees described being disenchanted with what they termed “big law culture” in large part because of the lack of work-life balance. Some interviewees indicated that firm culture enables or even encourages bragging, especially among partners and senior associates, about long hours, time away from family, and little or no sleep. A theme emerged that firms need more buy-in for well-being programs and practices, especially through modeling and acknowledgement by firm management, senior partners, and senior associates. Some newer associates commented that despite their firm’s well-being focus, it was challenging to take time off while having to answer to frustrated partners. Furthermore, interviewees suggested that firms need to be thoughtful about their well-being offerings. Oftentimes, associates do not take advantage of these programs because of the pressure to meet billable hour requirements. One interviewee noted that the benefits of a midday exercise break are negated by the stress of wondering about what could go wrong if she was needed during her exercise break. Moreover, interviewees commented on the timing of offerings, indicating that they should be scheduled at times that make sense in the rhythm of an attorney’s workday (i.e., not scheduled against standing meetings). Interviewees praised perks that the firm provided like gym discounts, food deliveries, childcare, and dry-cleaning services, which all helped to lower stress levels.
In-house counsel interviewed shared views different from lawyers at firms, describing environments as “supportive” and “understanding.” This response was similar to smaller firms, where interviewees acknowledged a lack of formal well-being programs but a feeling of intimacy, friendliness, and openness in the office. Finally, there were a host of interviewees, especially those with young children, at both large and smaller firms who would prefer to leave work and not engage in any non-work related event, even if part of well-being programming.
Generally, nearly all the interviewees noted that work-life balance and well-being had suffered during the pandemic and that they felt that they were on call 24/7 with no refuge from work. Finding balance, as indicated by these attorneys, is essential for enjoying the position and staying in the organization for the long term. One interviewee wished that “if only companies and firms would realize that offering more time off and setting more realistic expectations was a more common practice” in the corporate world, then employee productivity and satisfaction would be much higher. A refrain heard often was that valuing associates and other employees as “real people” with lives and responsibilities outside of work, and providing “flexibility, a good environment, and interesting work” are paramount. The take-away for most of the law student interviewers was that the time is right for law offices to reimagine the practice of law in a way that can accommodate both the clients’ needs and the well-being and health of the practitioners and employees.
An Amlaw 100 Law Firm Model
Mintz first implemented a formal well-being program called Mpower in 2006. The initial focus was to support and improve employee physical health. Over time, Mintz has expanded the program to cover additional aspects of employee well-being. The success of this program is credited to the individuals and committees responsible for creating and effectuating the programs, strong leadership support and well-being champions, leveraged opportunities with benefits providers, and relationships with related organizations such as the SJC Standing Committee on Lawyer Well-Being, Mindfulness in Law Society, Lawyers Concerned for Lawyers of Massachusetts, and the Institute for Well-Being in Law.
Mpower – with the tagline “Your Health, Your Well-Being, Your Life” – was introduced to the firm as a program offering discounted gym memberships and walking maps for each office (to encourage movement throughout the day), and periodic emails and presentations providing education on various well-being topics. Today the Mpower program consists of seven components: financial health, inclusion, mental health, mindfulness, physical fitness, physical health, and walking maps. The newest components include inclusion, mental health, and mindfulness.
Inclusion has an essential relationship to well-being. If a person does not feel included in his or her workplace culture, his or her well-being and ability to perform at his or her best will be impacted. Mintz is fortunate to have Narges Kakalia, a passionate and talented Director of Diversity, Equity & Inclusion, to help support the firm’s goal to foster a culture in which all individuals can bring their whole, unique selves to work, while feeling both valued and respected. DEI Director Kakalia works collaboratively with Well-Being Director Cappello to develop information and resources shared through Mpower. For example, in June the firm posted a message from the Managing Member (Partner) supporting Pride Month, and communicating the importance of using appropriate gender pronouns as a step toward respecting people’s gender identity and creating an inclusive environment for people of all genders.
Inspired by the National Task Force Report, in 2018, Mintz became an inaugural adopter of the ABA Well-Being Pledge & Campaign, and committed to the seven-point pledge identified in the Campaign to raise awareness to address the legal profession’s troubling rates of alcohol and other substance-use disorders, along with mental health issues. The pledge is listed on the Mpower intranet home page and Mental Health page, and includes a statement in the firm’s Core Value Policy packet reviewed with all new hires. The site contains links to confidential screening tools, videos (including the ABA Anti-Stigma Video) and recordings of past presentations. Mintz continues to strengthen its commitment to employee well-being and recently became a Founding Champion sponsor of the Institute for Well-Being in Law (IWIL) which was formed to carry on the movement launched by the National Task Force.
In December 2016, Mintz held its first Introduction to Mindfulness presentation, followed by an 8-week Mindfulness at Work Program beginning in January. The program was so well received that Mintz has offered it each subsequent year. Mintz also has dedicated meditation space in its Boston and D.C. offices, offers live virtual weekly meditation sessions, and provides additional resources for mindfulness including the Mindfulness In Law Society.
Professor Anzalone’s class, in its 5th year, and Mpower, celebrating its 15th year, are among the efforts underway to help lawyers thrive in the profession. By continuing to expand awareness of the challenges of law practice and resources available as early as law school and throughout legal careers, we will make positive steps toward a better future for the legal profession. For more information about the efforts of the SJC Standing Committee on Lawyer Well-Being or to get involved, visit lawyerwellbeingma.org or contact Director Heidi Alexander, firstname.lastname@example.org.
Heidi Alexander is the Director of the Massachusetts Supreme Judicial Court Standing Committee on Lawyer Well-Being and formerly served as the Deputy Director of Lawyers Concerned for Lawyers. Heidi attends to her own well-being by coaching CrossFit and youth sports, competing in powerlifting, and most importantly spending time with her three young kids.
Filippa Marullo Anzalone has served as Professor of Law and Associate Dean for Library and Technology Services at Boston College Law School since August 2002. She teaches a course called Mindfulness & Contemplative Practices for Lawyers at BC Law. Before BC, Filippa worked at Northeastern University School of Law, law firms, and public libraries.
Laurie Cappello is the Director of Well-Being for Mintz, and leads the strategic development, direction, communication, and management of the Mintz well-being programs. Laurie is active in the local and national well-being community and is the Vice President of the Mindfulness in Law Society (MILS) and the Co-Chair of the MILS New England Chapter
We Have To Tell Them What?: The New Corporate Transparency Act and Forming Business Entities In MassachusettsPosted: November 3, 2021
by James J. Wheaton and Gustavo De la Cruz Reynozo
The details and requirements of business entity formation have traditionally been the sole province of state law. Most states, like Massachusetts, maintain corporate annual report filing requirements that involve the public disclosure of corporate officers and directors, and some impose similar requirements for LLCs or other business entities. Those requirements focus on active managers of the entities, not information about the beneficial ownership of entities formed under their laws. However, the recently-enacted federal Corporate Transparency Act (CTA) will fundamentally change entity disclosure.
By January 1, 2022, the Treasury Department will be promulgating regulations that will require every state filing creating a new business entity to be accompanied by a simultaneous transmission into a new federal database of the full name, street address, and an identification number of certain beneficial owners and of the “applicant” who forms the entity, who may be the attorney who handles the filing. Existing entities will have longer to comply, but will eventually be subject to similar disclosure.
I. Scope of the CTA
A. What Disclosure Does the CTA Require?
For each “beneficial owner” and “applicant” of a “reporting company,” a filing must be made to Treasury’s Financial Crimes Enforcement Network (“FinCEN”) that includes:
- Each person’s full legal name, date of birth, and current residential or street address; and
- Either (a) the identifying number from an acceptable identification document (i.e., valid passport, driver’s license, or state, local or tribal identification document), or (b) a FinCEN identifier assigned to the person via a request from the person to FinCEN.
The CTA requires additional filings within one year of any change in the information included in the initial filing. This updating obligation applies not only to the identity of the beneficial owners, but also to changes in their address and even new numbers assigned to their licenses, ID cards, or passports upon renewal.
B. Who Will Have Access to the FinCEN Database?
The CTA limits access to the personal information in the database to:
- Any federal agency engaged in national security, intelligence, or law enforcement activity.
- State, local, and tribal law enforcement agencies if a court has authorized seeking the information in a criminal or civil investigation.
- Federal regulatory agencies for the purposes of their supervision.
- Foreign law enforcement agencies, prosecutors, or judges, upon a request by a federal agency on their behalf.
- A financial institution that has been authorized to make the request by the reporting company, for customer due diligence purposes.
The blanket “law enforcement category” includes immigration enforcement. This concern may be particularly relevant given the number of students, particularly in the Boston area, who engage in startup activity while studying in the United States. The disclosure to FinCEN that a student whose visa terms do not permit work is a significant beneficial owner of an entity may create a presumption that customs and immigration officials could use to exclude a student from returning after travel outside the U.S. or to revoke the visa and expel the student from the country.
C. What Companies Are Covered by the CTA?
The CTA requires filings from all non-exempt corporations and LLCs, and any other “similar entity” that is either: (i) created by filing a document with a state or tribal filing agency, or (ii) formed in another country but registers to do business by filing a document with a state or tribe. The phrase “created by the filing of a document” means that an entity that exists irrespective of the making of a state filing should not be a CTA “reporting company.” This means that several entity types may be CTA-exempt:
General Partnerships and LLPs. General partnerships are outside the CTA because they exist irrespective of a filing. Because an LLP is a general partnership that exists as an entity before it registers as an LLP, an LLP should also be deemed outside the coverage of the CTA.
Massachusetts Business Trusts. These trusts should be outside the CTA, while Delaware statutory trusts are likely to be deemed covered by the CTA. Massachusetts has long considered the state and local filings to be made by business trusts as administrative requirements, and not conditions of creation or existence. By comparison, the filing itself creates a Delaware business trust.
Entities Resulting from by Statutory Conversion. Most states have inter-entity conversion statutes that allow an entity to convert from one legal form to another. Such provisions typically make clear that the post-conversion entity is the same entity that existed before the conversion, just in a different legal form.
Entities Formed in Foreign Jurisdictions but Qualified or Registered to Do Business. Foreign entities that register to do business in a state are required to make CTA filings. However, foreign entities that neglect or ignore state registration or qualification requirements are not included within the CTA, creating a gap in coverage.
The CTA also contains a lengthy list of businesses exempt from its coverage, but only a few of these exemptions are likely to arise in typical legal practices:
- Public companies with securities registered under the Securities Act of 1934,
- Nonprofits and other organizations under IRC § 501(c),
- Certain regulated businesses,
- Accounting firms,
- Certain dormant companies, and
- Any company employing more than 20 employees in the US on a full-time basis, which filed a prior year federal tax return showing more than $5 million in gross receipts or sales, and which operates at a physical location in the U.S.
The last exemption is interesting for several reasons. First, a new entity could never use the exemption, because it will become available only in the year after a year in which the requisite revenue or sales were shown in a tax return. Second, the statute does not define what constitutes a physical office. Third, until better defined by Treasury, the 20-employee requirement remains unclear. What will constitute a full-time basis? Can multiple part-time employees comprise an FTE? Will members of an LLC, who for tax purposes are not considered “employees,” be included in the count? Can persons treated as “independent contractors” be counted? When in the year will the number of employees be measured? Although the Advanced Notice of Proposed Rulemaking issued by FinCEN in April 2021 did not address these issues, one would expect them to be clarified by the forthcoming regulations themselves.
D. Who is a “Beneficial Owner”?
The CTA’s definition of a “beneficial owner” is simple but also inadequate. An entity’s beneficial owners include every individual who “owns or controls” at least 25 percent of the entity’s ownership interests, or who exercises “substantial control” over the entity.
The CTA neither defines what constitutes “owning or controlling” ownership interests nor distinguishes among types of ownership interests with differing control and economic attributes. For some purposes under the securities laws, beneficial ownership has been defined as voting power, and a similar test based on aggregate affirmative voting rights would make sense for the CTA.
Will “substantial control” be defined by reference to the ability to cause the entity to take action, or will veto or blocking rights also be deemed to furnish control? Will persons serving as officers, directors and managers be “beneficial owners” because they “control” even if they own no equity? Massachusetts attorneys representing clients that are the beneficiaries of these kinds of “control” mechanisms must tread carefully to ensure that their clients do not unintentionally become beneficial owners.
E. Who is an “Applicant”?
Except in the provision that defines the term, the word “applicant” only appears twice more in the CTA, most importantly in the provision that specifies that the same information that must be filed about beneficial owners must also be filed about the applicant. There is no updating requirement for that information, and indeed, the personal information about the applicant is not even subject to the disclosure limitations and penalties of the CTA.
Will attorneys representing clients forming entities be considered applicants whose personal information must be submitted to FinCEN? The answer may depend on what it means to be an individual who “files an application to form a corporation, LLC, or other similar entity.” An attorney (or law firm staff member) who physically or electronically tenders the document for filing would also seem to be one who has “filed an application,” even if that filing is on behalf of another.
Removing the attorney from the direct action of filing, as by engaging a service company on the client’s behalf to handle the filing, or by delegating electronic filing responsibilities to the client, should suffice to prevent the attorney from being considered someone who “filed.”
F. Who is Responsible for Making CTA Filings?
The initial filing obligation for post-effective date formations is imposed on the company itself, and although the filed information must include personal information about the applicant (who, as observed above, might be the entity’s attorney), the statute itself does not require the applicant to make the filing. For preexisting entities, and changes in beneficial ownership, the reporting company also has the filing obligation.
Failure to comply with the CTA’s reporting requirements may lead to both civil and criminal liability. A “willful” failure to report complete or updated beneficial ownership information in a timely way, or a willful provision or attempt to provide false information, may result in a civil penalty of $500 per day of violation, as well as a criminal fine of $10,000 and imprisonment for up to two years.
II. Practice Implications
A. Should Attorneys Permit Themselves to Be “Applicants”?
Treasury regulations may better define “applicant” to clarify whether it includes anyone other than the person who actually signs the filing or delivers the filing to the state filing officer. Any effort by Treasury to impose “applicant” status on attorneys will surely face a legal challenge. Given the risk of liability and other penalties associated with CTA filings, and the ease of offloading the filing responsibility to others, attorneys should consider alternatives to what may have been their prior business entity formation practices.
Currently, the most common practice for attorneys is for the attorney (or a non-attorney colleague) to sign an initial corporate or LLC filing as the incorporator, organizer or authorized person. For a Massachusetts entity, this process may happen entirely online, without direct client involvement. For non-Massachusetts entities, even where formation is handled by the Massachusetts attorney or firm, the need for a registered agent in the other jurisdiction has necessitated the use of corporate service companies, some of which have national practices and others of which are based in and primarily serve Delaware.
The advent of the CTA may change these filing practices in at least two ways. First, attorneys will be much less sanguine about simply signing the initial filing document, and may request that a client representative do so instead. First, for Massachusetts companies, having a client representative (a) sign the formation document, if the representative is willing to be in the public record, and (b) handle the filing on the Secretary of the Commonwealth’s website with step-by-step instructions from counsel, may eliminate the risk that the attorney is deemed a CTA applicant. For the client, any concern about public disclosure has less relevance for Massachusetts LLCs and corporations. The LLC’s filing must already name the managers or an authorized member, one of whom could be the signatory. Massachusetts corporations must file an annual report providing the names and addresses of directors and officers, and so while disclosure does not occur at filing, it does happen within the ensuing year.
Second, for companies formed in Delaware and other jurisdictions, corporate service companies may step in to either fill two roles in the filing process: (1) replacing the attorney (or her employee) as the person who effects the filing, or (2) also signing the filing document itself as incorporator, organizer or authorized person. This may result in more substantial service fees and obligations on the client’s part to execute documents to protect the service company and its employee handling the filing from the CTA risks associated with incomplete or false information.
B. Due Diligence and Legal Opinion Questions
The mechanics of the FinCEN beneficial owner database will become known once the Treasury regulations are finalized and the reporting scheme launches, but the non-public nature of the filings means that it will not be possible for the public to use the database to confirm the CTA compliance status of a particular entity. For this reason, in transactions involving covered entities, it may fall to the legal profession to conduct due diligence regarding CTA compliance, to maintain records of prior filings made as “applicants” or otherwise on behalf of clients, and to advise clients making their own initial or ongoing ownership change filings to maintain sufficient records to evidence up-to-date compliance.
Transactions involving representations by covered business entities will likely include new representations, covenants and closing conditions related to the CTA compliance status of those companies. Lawyers on both sides of transactions should be expected to include proof of compliance in due diligence checklists and pre-transaction “cleanup” projects.
Whether CTA compliance status should also be a subject of closing legal opinions is a subject for future consideration by both practitioners and the bar-related organizations that attempt to set the standard for legal opinion practice. Arguably, CTA compliance will be as relevant in a closing opinion as presently expected or demanded opinions regarding existence, good standing, or even foreign qualification, subjects that are addressed in the most commonly referenced opinion forms.
Opinion-issuers may ultimately resist CTA-related opinions, but as practice evolves, attorneys should anticipate that they may be asked to serve another gatekeeper role. Even if they avoid serving as “applicants,” counsel may be asked to opine, even if qualified by client fact certificates or knowledge, as to the existence and accuracy of required CTA filings.
C. Amending and Adapting Document Forms
Once an entity is formed, whose duty will it be to maintain the ongoing accuracy of the company’s FinCEN information? For entities existing before the Treasury regulations become effective, who will have the duty to make the initial filing? What responsibility will a person nominally charged with making the filings have if through omissions or misinformation, the CTA requirements are not met, or the filings contain inaccurate information? The forthcoming regulations may address some of these concerns, but interpretive gaps will likely remain.
Each of these questions leads to the conclusion that the responsibility for filing, and for accuracy, will need to be allocated among an entity’s beneficial owners and those (if not the owners themselves) making the filings. An officer, manager or general partner charged with transmitting a filing to FinCEN should likely indemnify the entity against a false filing, and in turn be indemnified against the consequences of false information provided by others. The governing documents of the company should establish responsibility for making CTA filings, and obligate beneficial owners to provide the necessary information on a timely basis.
This likely need for changes to a substantial library of business entity forms also raises the issue of how best to handle entities formed before the effective date of the CTA regulations. All attorneys who have been involved previously in forming entities for their clients will need to consider not only how to communicate and assist current clients, but also whether and how to reach out to former clients, who may have received business-entity services as one-off or since-ended engagements. In-house counsel will need to take on, or delegate to in-house or outside counsel colleagues, responsibility for CTA filings for each entity, however insignificant, that appears in the corporate family tree.
The adoption of final Treasury regulations may clarify some ambiguities, and may even close potential loopholes that would otherwise allow some business entities to evade the CTA’s dragnet. Those changes, however, will not allow Massachusetts practitioners to avoid the substantial professional responsibility, structuring and practical issues created by this new law, which will change the way we have approached business entity formation for many decades.
Existing Massachusetts Filing Requirements
Formed by Filing?
Filing Information Required
Annual Report Information Required
Yes. Ch. 156D, § 2.01.
Name and address of each incorporator (only one required). Ch. 156D, § 2.02(a)(3).
Names and business addresses of every director as well as of the president, treasurer and secretary, and of any CEO and CFO, if different. Ch. 156D, § 16.22(a)(4).
Yes. Ch. 156C, § 12(b).
Name and address of every manager if LLC has managers when formed, plus name and address of any other person authorized to execute and file documents with the Secretary of the Commonwealth (including the person signing the filing if there are no managers). Ch. 156C, §§ 12(a)(5), 12(a)(6).
Same information is required in an annual report, which effectively imposes an annual updating requirement. Ch. 156C, §§ 12(c).
Yes. Ch. 109, § 8(b).
Name and business address of every general partner. Ch. 109, § 8(a)(4).
Updated general partner information must be contained in an annual report that became a required filing in 2008. Ch. 109, § 63.
No. An LLP is a general partnership that has opted into limited liability partnership status, and so the filing of the documents needed to make the partnership an LLP do not actually constitute a filing that creates the entity.
For an LLP that is not a professional LLP, the registration filing need not include any general partner information other than the name of the general partner signing the registration form. Ch. 108A, § 45(2).
Annual report requirement requires no partner identifying information. Ch. 108A, § 45(2).
No. Same as LLP.
Must list the name and business address of every general partner rendering the professional service in Massachusetts in the LLP registration filing. Ch. 108A, § 45(7).
Same information is required in an annual report, which effectively imposes an annual updating requirement. Ch. 108A, § 45(7).
No. Required filings are not linked to the trust’s creation or continued existence; rather, the Massachusetts trust statute simply recognizes the existence of the trust and imposes administrative requirements, such as the filing requirement.
Must file a copy of its instrument or declaration of trust with the clerk of every city and town where it has a usual place of business, and with the Secretary of the Commonwealth. Ch. 182, § 2. Presumably, that document will, at minimum, name the trustees.
No annual report requirement.
 See https://www.uscis.gov/working-in-the-united-states/students-and-exchange-visitors/students-and-employment (last accessed Sept. 19, 2021).
 See Appendix.
 See Del. Code tit. 6, § 15-201(b); Mass. Gen. L. c. 108A, §45.
 See Appendix.
 Del. Code tit. 12, § 3810(a)(2).
 Ownership or control cannot be through bearer interests, which are prohibited by the CTA. See § 5336(f).
 Exchange Act Rule 13d-3, 17 C.F.R. § 240.13d-3.
 By definition, unless a general partner, the attorney could not sign limited partnership certificates of LLP registration forms, and unless a trustee, could not be the signer of a trust instrument.
 The CTA ties some state and tribal funding to periodic notifications by filing agencies of reporting company requirements under the CTA. See § 5336(e)(2)(A).
 All statutory references are to Massachusetts General Laws.
Professor James Wheaton is Clinical Associate Professor and Director of the Startup Law Clinic at Boston University School of Law, Research Director of the Uniform Laws Commission/ABA Joint Editorial Board for the Uniform Unincorporated Organizations Acts, and a former Chair of the ABA Section of Business Law LLCs, Partnerships and Unincorporated Entities Committee. The views expressed in this article are solely those of Professor Wheaton and Mr. Reynozo, and are not made on behalf of any of Boston University, the ABA, or the Uniform Laws Commission.
Gustavo De la Cruz Reynozo is a third-year law student at Boston University School of Law and a former staff editor of the Journal of Science and Technology Law.
Tending the Garden: Two Perspectives on Reforming the Patient-Psychotherapist Privilege in Employment Discrimination LitigationPosted: November 3, 2021
Employment discrimination cases often feature a claim for emotional distress damages. In defending against such a claim, an employer sometimes seeks access to the plaintiff’s mental health treatment records, looking for evidence that external or pre-existing factors caused the alleged injury. Disclosure of those records is generally prohibited by the patient-psychotherapist privilege, which protects the confidentiality of communications and records regarding the patient’s treatment. When disputes over these mental health records arise, courts must decide whether the plaintiff has waived that patient-psychotherapist privilege and thereby exposed the therapy records to discovery. In Massachusetts, the current test is a largely discretionary one in which the judge’s focus is on whether the plaintiff has pled more than “garden variety” emotional distress damages and whether the “interests of justice” weigh more heavily in favor of disclosure than confidentiality. In theory, this garden variety test strikes a balance between the plaintiff’s expectation of privacy and the defendant’s interest in accessing probative evidence for its defense. But, in practice, the test’s subjectivity produces uncertainty (and arguably unfairness) for both parties, leaving disclosure of the plaintiff’s deepest confidences—and what may be the defendant’s best chance of disproving damages—to the personal predilections of a judge. This article reviews the relevant case law, and presents two contrasting visions of potential reform.
The United States Supreme Court first recognized the patient-psychotherapist privilege in 1996 in Jaffee v. Redmond. There, the Court reasoned that the relationship between psychotherapist and patient necessitates “full and frank communication,” and that “[t]he mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment.” The Jaffee decision recognized that, like other privileges, plaintiffs could waive the patient-psychotherapist privilege in certain circumstances; but the Court left it to lower courts to develop standards for determining when waiver is appropriate.
Since Jaffee, courts across the country have developed divided approaches to the issue of waiver. A minority have adopted the defendant-friendly position that waiver of the patient-psychotherapist privilege follows whenever a plaintiff seeks emotional distress damages of any kind or degree. Others hew more closely to the common law of attorney-client privilege, holding that plaintiffs waive their patient-psychotherapist privilege only when they rely on confidential psychotherapy communications or call a mental health professional to testify at trial. Finally, many courts have treaded a middle ground in the so-called “garden variety” approach. Under this approach, courts are apt to find that a plaintiff has waived the privilege when seeking “more than garden variety” emotional distress damages. There is no universal definition of “garden variety” emotional distress, but the Western District of New York’s attempt to give shape to the term is fairly representative: “Garden variety claims refer to claims for compensation for nothing more than the distress that any healthy, well-adjusted person would likely feel as a result of being so victimized; claims for serious distress refer to claims for the inducement or aggravation of a diagnosable dysfunction or equivalent injury.”
Massachusetts adopted a version of the “garden variety” approach via statute, which also considers whether the interests of justice weigh against or in favor of waiver. Section 20B of Mass. Gen. Laws. c. 233 states that waiver is appropriate in cases “in which the patient introduced his mental or emotional condition as an element of his claim or defense, and the judge … finds that it is more important to the interests of justice that the communication be disclosed than that the relationship between patient and psychotherapist be protected.” State and federal trial courts interpreting this guidance have generally concluded that a plaintiff introduces her mental or emotional condition as an element of a claim or defense when she seeks more than “garden variety” emotional distress damages, or claims that the defendant caused a “psychic injury” or “impairment of mental health.”
Yet confusion has arisen as courts have attempted to define “garden variety.” A review of Massachusetts case law reveals that there is little consensus around where garden variety distress ends and extraordinary psychological injury begins. Some courts have found that plaintiffs claiming “mental anguish [and] severe emotional distress, including physical and mental suffering” and “intentional infliction of severe emotional distress” did not introduce their mental condition as an element of their claims, and thus did not waive the privilege. At the same time, others have found that allegations of “great emotional, psychological, and physical harm” and “irreparable mental damage and extreme impairment of mental health” were enough to clear the garden variety hurdle and compel disclosure of treatment records. These contradictory outcomes indicate that parties cannot reliably predict when a court will find that a plaintiff is seeking more than “garden variety” damages based simply on the vocabulary used to articulate the claim. Rather, whether a plaintiff pleads something more than garden variety distress depends largely on the discretion of the particular judge presiding over the case.
Section 20B’s “interests of justice” prong produces additional ambiguity. Specifically, it empowers courts to bar disclosure of treatment records even when a plaintiff seeks more than garden variety emotional distress damages if the interests of justice weigh in favor of preserving the privilege. In recent years, Massachusetts courts have increasingly relied on the interests of justice rationale to protect the privilege, unless the plaintiff calls a mental health professional to testify or introduces the content of her communications with a therapist as evidence at trial. Defendants may nonetheless argue for disclosure by making “a specific showing that the truth-seeking function of the trial will be seriously impaired unless a disclosure of the communication is ordered;” but this, too, proves to be a highly subjective and uncertain standard when actually applied. Thus, Massachusetts judges appear to be driving § 20B’s waiver standard toward the “narrow” approach adopted by other state and federal courts, but with none of the predictability associated with a bright-line rule.
The result is a subjective, content-less standard that presents challenges for both plaintiffs and defendants in employment discrimination cases. Even after carefully crafting a claim for emotional distress, plaintiffs may be unable to dictate or predict whether their treatment records will become subject to disclosure. At the same time, they walk a fine (and fuzzy) line between recovering their emotional distress damages and exposing their treatment records to discovery. Defendants, in turn, have little insight into or control over whether they will be able to develop an informed defense by gaining access to the plaintiff’s mental health history. In short, neither party has fair notice as to how the case is likely to play out.
We propose two alternate pathways to reform. While opposed in important respects regarding how and where the balance of fairness and public policy are properly struck, each approach would provide more predictability than the current standard.
 Jaffee v. Redmond, 518 U.S. 1, 10–11 (1996).
 For a thorough discussion of the different approaches that courts have taken toward waiver of the patient-psychotherapist privilege, see Helen A. Anderson, The Psychotherapist Privilege: Privacy and “Garden Variety” Emotional Distress, 21 Geo. Mason L. Rev. 117 (2013); see also Laudicina v. City of Crystal Lake, 328 F.R.D. 510. 513-14 (N.D. Ill. 2018) (Johnston, Mag.) (reviewing the “three approaches” to the issue of waiver); Cappetta v. GC Services Ltd. Partnership, 266 F.R.D. 121,127-29 (E.D. Va. 2009) (Lauck, Mag.) (same).
 Willey v. Kirkpatrick, No. 07-CV-6484CJS, 2011 WL 4368692, at * 7-8 (W.D.N.Y. Sept. 19, 2011) (Payson, Mag.).
 Sorenson v. H & R Block, Inc., 197 F.R.D. 199, 204 (D. Mass. 2000) (Collings, Mag.) (citing Jacobs v. Vachon, No. 961506, 2000 WL 281665 (Mass. Super. Jan 28, 2000) (Hamlin, J.).
 Sorenson, 197 F.R.D. at 204; Myers v Tom Foolery’s Inc., No. WCV98353A, 1999 WL 1025364, at *2 (Mass. Super. Sept. 29, 1999) (Hillman, J.).
 Tauro v. Gange & Sons, No. CA 952757C, 1996 WL 1186815, at *1 (Mass. Super. July 18, 1996) (Gershengorn, J.); Jacobs, 2000 WL 281665, at *2. See also Guimares v. Del Prete, No. 95-0738-A (Mass. Super. Apr. 27, 1996) (Brassard, J.) (“irreparable mental and emotional damage”).
 See, e.g., Conklin v. Feitelberg, 146 F. Supp. 3d 430, 436-38 (D. Mass. 2015) (Dein, Mag.); Saunders v. FA Bartlett Tree Expert Co., No. 5-CV-12358-NG, 2006 WL 8459043, at *5 (D. Mass. Mar. 15, 2006) (Alexander, Mag.); Robart v. Alamo Rent-a-Car, LLC, No. 034603J, 2005 WL 1009746, at *3-4 (Mass. Super. Mar. 16, 2005) (Gaziano, J.); Linscott v. Burns, No. C.A.2003-00648, 2005 WL 351039, at *3 (Mass. Super. Jan. 27, 2005) (Agnes, J.); Donovan v. Prussman, No. CIV. A. 99-175D, 2000 WL 1257463, at *4-7 (Mass. Super. Aug. 28, 2000) (Agnes, J.).
 Linscott, 2005 WL 351039 at *3; see also Donovan, 2000 WL 1257463 at *7.
by Douglas Brayley & Matthew Carrieri
The current standard governing waiver of the patient-psychotherapist privilege unjustifiably tilts the resolution of emotional distress damage claims in the plaintiff’s favor. Massachusetts courts may have developed the “garden variety” test in a sincere attempt to balance the interests of plaintiffs and defendants. However, what has become the routine invocation of the garden variety talisman permits plaintiffs to shield highly relevant information from discovery while still seeking (and recovering) extraordinary damage awards. In practical terms, defendants in employment discrimination lawsuits often find themselves denied access to the most probative evidence available for rebutting a claim that their actions proximately caused an employee to suffer potentially millions of dollars in emotional distress damages. In short, the status quo is unfair to employer defendants.
Our proposed solution is simple. First, plaintiffs who claim only “garden variety” damages—and thus assert the privilege—should thereby assent to certain trial limitations. Specifically, upon invocation of the privilege, the trial court should (1) hold that therapy records and related evidence are inadmissible; and (2) give a jury instruction explaining that the plaintiff seeks (and may be awarded) only “garden variety” emotional distress damages. The instruction should articulate the recoverable damages as compensating, in the words of the Western District of New York, “[n]othing more than the distress that any healthy, well-adjusted person would likely feel as a result of being so victimized.” Other potential consequences arising from the plaintiff’s invocation of the privilege might include imposing reasonable limitations on what plaintiff’s counsel can allege by way of emotional distress in opening statements and closing arguments, and vesting the court with discretion to order remittitur if the jury’s damage award exceeds what the court deems to be reasonable for “garden variety emotional distress.” Under this approach, the power to preserve or waive the privilege remains with the plaintiff, but reasonable conditions on its invocation safeguard the defendant’s interest in developing an informed defense on the issue of damages.
Second, the conditions that attach to preservation of the privilege—and the very definition of “garden variety” emotional distress—should ideally be laid out in a statute, and not developed through the courts. Codifying the terms of privilege preservation and waiver would reduce much of the uncertainty that plagues the current application of the garden variety test. Together, these reforms would rebalance the undue advantages that plaintiffs have come to enjoy in discovery disputes over therapy records, while protecting both parties’ interests in fairness and predictability.
The following hypothetical illustrates the dangers that the current garden variety test poses for employers. A non-White employee in a majority White office applies for a promotion within her department. Her White manager has harbored concerns about her job performance for some time now—her in-office attendance has been spotty and her work product sub-par for months. Nonetheless, she has worked for the company in the same capacity for a couple of years, and employees in her position are normally promoted around the two-year mark. After comparing this employee against the pool of internal candidates, the manager decides to go with a slightly more junior candidate, who happens to be White. However, the manager likes the employee and wants her to succeed, so the manager holds a meeting with her to discuss how her performance might be improved ahead of the next job opportunity. The manager thinks the meeting went well.
Unbeknownst to the employer, this employee has been struggling with clinical depression triggered by traumatic events in her personal life. To date, however, she has chosen not to take time off from work or otherwise disclose her situation to anyone other than a psychotherapist. Distraught that her employer bypassed her for a promotion despite what she perceives as her hard work and grit, and on the advice of her doctor, the employee takes an extended leave from work. Then, while on leave, she files a charge with the Massachusetts Commission Against Discrimination, claiming that her employer discriminated against her on account of race.
The employee eventually removes the case to Massachusetts Superior Court, where she seeks $5 million in emotional distress damages. In her complaint, the plaintiff alleges that the employer’s job actions caused her to experience “severe emotional distress and mental anguish, which produced both physical and mental suffering.” The employer is taken aback by the amount of damages sought by this employee for simply having been denied a promotion, and wonders whether an intervening cause may actually have triggered her alleged distress. Having heard a workplace rumor that the employee may recently have begun therapy, the employer serves discovery requests for—and eventually moves to compel production of—the employee’s treatment records. (Consider, by way of comparison, a defendant’s commonplace request for medical records in a tort action involving physical injuries, which records are sought for the purpose of exploring the extent to which the alleged harm may have originated from a pre-existing condition.)
The employee opposes the motion, asserting that she has alleged no more than garden variety emotional distress. Applying Section 20B’s test, the trial court agrees that the employee’s allegation of only garden variety emotional distress has not introduced her mental condition as an element of the claim. The court is likewise not convinced that the proceedings’ truth-seeking function would be seriously impaired if the employer were not permitted to mine the employee’s psychiatric records. Accordingly, the court declines to compel disclosure.
The employer now occupies an untenable position. Without access to the employee’s mental health records or the ability to cross-examine her treating psychotherapist, it is much more difficult to prove that anything other than the employer’s decision to deny the subject promotion caused plaintiff to suffer her claimed emotional distress. At the same time, there is virtually no constraint on a jury’s eventual ability to award the full requested $5 million in damages. (A recent amendment to Section 13B of Mass. Gen. Laws c. 231, allowing a plaintiff to request a specific amount of damages during closing arguments, heightens the risk of this unfairness.) Feeling unable to present a cogent defense on damages, the employer settles for an amount far greater than it otherwise would have, primarily to mitigate the risk of an outsized jury award.
It is difficult to see how the status quo serves the “interests of justice” intended by Section 20B. A plaintiff should not be allowed to block a defendant’s attempt to take discovery of his or her mental health condition and records, and yet still collect an extraordinary award for what the plaintiff concedes is an ordinary level of emotional or psychological harm. This result flies in the face of common sense, never mind fairness. The law should only allow ordinary or “garden variety” harm to be compensated with ordinary damages. Finally, neither party should be required to guess how a judge will rule on a basic, though highly consequential, evidentiary issue.
Imposing trial limitations on plaintiffs who profess only “garden variety” emotional distress damages would be an appropriate and overdue step towards fairness. A recent decision of the U.S. District Court for the District of Maine shows how this approach might work in practice. In Doe v. Brunswick School Dep’t, No. 2:15-cv-257-DBH, 2016 U.S. Dist. LEXIS 59107 (D. Me. Apr. 29, 2016), a student claimed that he and his mother had experienced “emotional pain and distress, suffering, mental anguish, and loss of enjoyment of life” on account of his school’s failure to address repeated instances of sexual, physical, and verbal abuse. The defendant school sought access to the student’s therapy records, including those pre-dating the alleged instances of abuse, and the student’s mother invoked the patient-psychotherapist privilege. The court declined to compel production, but in doing so required the student and his mother to withdraw any claims for emotional distress damages other than those that would “likely be felt by any healthy, well-adjusted person” (i.e., that are of a “garden variety” nature), and to forfeit their right to rely on medical or mental health experts or records to prove damages. The court made clear that, should the plaintiffs fail to abide by those limitations, it would consider the privilege waived and order discovery of the student’s therapy records. While Brunswick does not prescribe how such limitations would be enforced at trial, a jury instruction and/or explicit remittitur power vested in the judge would be reasonable means of doing so.
The Brunswick approach benefits plaintiffs and defendants alike. The plaintiff retains control over waiver of the privilege, but no longer needs to worry about painstakingly crafting her complaint for damages in the hope that a judge will discern only garden variety distress in its language. Instead, the plaintiff makes a simple choice: waive the privilege and seek extraordinary damages, or preserve it and accept ordinary relief. The defendant, on the other hand, no longer faces the dilemma of having to rebut a claim for extraordinary damages without the probative evidence it needs to build a defense.
Reform should ideally be carried out through legislative action rather than in the courts, given that much of the current uncertainty results from the unpredictable exercise of judicial discretion. A statute or other rule that defines what exactly constitutes “garden variety” emotional distress, and spells out the other conditions and consequences that will attach should the plaintiff invoke the privilege, would give all parties fairer notice and better secure the interests of justice.
Douglas Brayley is a partner in the Employment, Executive Compensation, and Employee Benefits group at Ropes & Gray LLP, and leads the firm’s employment litigation practice. Doug represents employers in complex employment disputes and internal investigations, and advises employers on a wide range of labor and employment issues in the context of mergers and acquisitions as well as day-to-day operations.
Matthew Carrieri is an associate in the Employment, Executive Compensation, and Employee Benefits group at Ropes & Gray LLP. Matthew represents clients in litigation before state and federal courts and at arbitration, and advises employers on labor and employment matters.
 The analogy is apt. See, e.g., Linscott, 2005 WL 351039 at *2 (“[A] party with a pre-existing condition … who suffers a physical injury is permitted to recover damages for the aggravation to that pre-existing condition whether it is physical or emotional.”) (citing Wallace v. Ludwig, 292 Mass. 251, 254–55 (Mass. 1935) (Rugg, J.)).
by Monica R. Shah & Caroline Davis
Evidentiary privileges, like the patient-psychotherapist privilege, the spousal privilege, or the better-known attorney-client privilege, have long “been found, through centuries of experience, to outweigh the public interest in the search for truth.” By their very nature and design, these privileges deny access to testimony or evidence that would otherwise be relevant, probative, and, in many cases, highly sought after. Nonetheless, our courts enforce these privileges because the “very real interest[s] to be protected” trump the judicial system’s quest for truth and litigants’ presumptive obligation to produce relevant evidence.
Like other privileges protected by law, the patient-psychotherapist privilege protects an important public good: “the imperative need” for “an atmosphere of confidence and trust,” which is essential for “[e]ffective psychotherapy.” As the Supreme Court has recognized, “[b]ecause of the sensitive nature of the problems for which individuals consult psychotherapists, . . . the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment.” Therefore, severely restricting the possibility of disclosure – and investing the plaintiff with the ability to predict and control the same – is essential to preserving the public good for which that privilege was established.
Nearly a quarter of Massachusetts residents rely on or attempt to obtain psychotherapy or counseling services, a number that is only increasing as a result of the mental health ramifications of the COVID-19 pandemic. Unfortunately, this critical public good is routinely undermined and jeopardized by the current approach to waiver of the patient-psychotherapist privilege adopted by the Massachusetts courts. Courts applying Massachusetts’ current test—which considers whether the plaintiff has alleged more than “garden variety” emotional distress, and whether the interests of justice weigh in favor of confidentiality or disclosure—frequently reach widely divergent conclusions in similar factual scenarios.
As the law currently stands, even plaintiffs who expressly disavow any intent to claim more than garden variety emotional distress damages—or, in some cases, any emotional distress damages at all—sometimes find their confidential records subject to disclosure. For example, in recent cases applying Massachusetts’ current approach, state courts concluded that plaintiffs asserting “neurological damage” or a “physical injury accompanied by severe pain and suffering including persistent headaches, loss of memory and ability to concentrate,” actually raised their “mental condition” and thus waived the patient-psychotherapist privilege, even despite the plaintiffs’ explicit claims to the contrary.
In recent years, some Massachusetts courts have trended toward increased protection for patient-plaintiffs, adopting reasoning that echoes other states’ “narrow approach.” These courts have concluded that the interests of justice support disclosure of confidential communications only in limited circumstances, including when the plaintiff introduces testimony from her psychotherapist or relies on communications and records from her treatment. Federal courts in Massachusetts have also followed the more narrow approach to privilege waiver. Other Massachusetts courts, conversely, have taken a more expansive view of the interests of justice, weighing the confidential nature of the records against their evidentiary value on a case-by-case basis. These divergent approaches leave patient-plaintiffs unable to control or predict whether a court will deem their privilege waived. Unless Massachusetts narrows its approach to waiver, “the promise of confidentiality” will remain “contingent upon a trial judge’s later evaluation of the relative importance of the patient’s interest in privacy and the evidentiary need for disclosure;” and, just as the Supreme Court predicted in Jaffee, “the effectiveness of the privilege” will be “eviscerate[d].”
The so-called “narrow approach”—under which the patient-psychotherapist privilege is waived only when the plaintiff makes affirmative use of the privileged material in advancing his or her claims—is the best alternative, as some Massachusetts courts have already recognized. In order to properly serve the important private and public interests which underlie that privilege, Massachusetts courts should construe Section 20B to find that “it is more important to the interests of justice that the communication be disclosed than that the relationship between patient and psychotherapist be protected” only where the plaintiff herself introduces or relies upon those communications at trial.
First, predictability and control by the plaintiff is key. An approach that places waiver of the patient-psychotherapist privilege reliably within the patient-plaintiff’s control is essential to serving both the individual’s private interests in protecting confidential communications and the public interest in facilitating effective treatment for persons in need of psychiatric care. The narrow approach “provides the best means of carrying out the Supreme Court’s directive, as articulated in Jaffee, that decisions regarding application of the psychotherapist-patient privilege should be predictable, and should not be made by balancing the plaintiff-patient’s interest in privacy against the defendant’s need for the evidence.”
Most importantly, the narrow approach best serves the critical public policy interests (and the evident legislative intent) underlying the patient-psychotherapist privilege. Like all privileges, the patient-psychotherapist privilege exists because the public benefits of protecting certain confidential communications outweigh litigants’ interests in equal and fair access to relevant evidence. In recognizing the patient-psychotherapist privilege, the Jaffee court weighed and balanced these competing interests and concluded: the patient-psychotherapist privilege “serve[s] a public good [which] transcend[s] the normally predominant principle of utilizing all rational means for ascertaining truth.” In other words, the public benefits of the privilege trump individual litigants’ entitlement to relevant evidence, and our courts should thus adopt an approach which incentivizes and “facilitate[s] the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem.”
In fulfilling these public policy goals, the narrow approach will ensure proper functioning of both the patient-psychotherapist relationship and the judicial system. Without confidence that their communications will not later be revealed against their will, patients in need of mental health services are less likely to pursue such services or to share honestly and effectively with their treatment provider. Similarly, unless they can be assured that bringing claims will not result in a forfeiture of the privilege to protect their most deeply felt mental health confidences, victims of employment discrimination will be less likely to avail themselves of the remedial recourse of laws intended to protect their civil rights. The judicial system’s goal of making injured plaintiffs whole is poorly served when prospective plaintiffs are forced to choose between pursuing their claims and protecting the confidentiality of their privileged communications. Additionally, both plaintiffs and defendants are likely to benefit from enhanced opportunities for plaintiffs to access effective psychotherapy. Therapy will often improve the patient-plaintiff’s mental state, and thereby help mitigate damages or avoid litigation altogether.
By its very nature and purpose, an evidentiary privilege limits a litigant’s access to relevant evidence, and that limitation is a necessary consequence of any approach to the issue. But in every case, the narrow approach will foster an equal and predictable universe of evidence upon which plaintiff and defendant alike may rely at trial: if the plaintiff relies on confidential communications with a psychotherapist, then the privilege is waived and those records will be subject to discovery by the defendant; but if the plaintiff does not introduce those confidential communications, then neither party may look to the plaintiff’s psychotherapy treatment for evidence for or against the plaintiff’s claims.
At the same time, even under the narrow approach, other methods and avenues for discovery of the plaintiff’s mental state remain available to defendants. When the plaintiff chooses not to waive her privilege, “the defendants remain free to question the plaintiff about the fact of psychotherapy treatment and can still probe the plaintiff’s credibility and inquire into his past for the purpose of showing that his emotional distress was caused at least in part by events that were not related to the alleged acts of the defendants.” Modern discovery practices provide ample opportunity for a defendant to probe the plaintiff’s mental health status, even without access to confidential treatment records. For example, defendants may be able to obtain information and documents (including emails, text messages, social media postings and non-privileged medical records) reflecting plaintiff’s emotional state, and then depose the plaintiff and other witnesses about stressors in the plaintiff’s non-work life without needlessly invading therapeutic communications.
Despite the efforts of some Massachusetts courts to establish a helpful framework, the “garden variety” approach has failed to coalesce into a predictable and useful body of law. Instead, the current approach has produced decades of inconsistent decisions, created disincentives against both seeking psychotherapy and pursuing justice via our civil legal system, and ultimately failed to serve the public interests underlying the privilege itself. In order to resolve the inconsistencies and serve those public interests, Massachusetts should adopt the “narrow approach” and protect the confidentiality of psychotherapist communications unless the plaintiff introduces or relies on those communications when making her claims.
Monica R. Shah is a partner at Zalkind Duncan & Bernstein LLP where she focuses her litigation practice on plaintiff’s side employment law, criminal defense, and Title IX matters. In her employment work, she advocates for employees in discrimination, sexual harassment, FMLA/disability, and wage and hour cases in state and federal courts, and counsels employees on a variety of workplace matters, including employment and severance agreements.
Caroline Davis is an associate at Zalkind Duncan & Bernstein LLP. Her state and federal litigation practice focuses on protecting the rights of employees facing discrimination, retaliation, and other workplace violations, along with academic and university proceedings, criminal defense, and a wide variety of civil litigation.
 United States v. Bryan, 339 U.S. 323, 331 (1950).
 Id. at 332.
 Jaffee, 518 U.S. at 10.
 Massachusetts Health Reform Survey, https://www.bluecrossmafoundation.org/sites/g/files/csphws2101/files/2020-09/2018_MHRS%20Chartpack%20MH%20SUD%20Care%20Measures_final.pdf (Dec. 2021); Covid Community Impact Survey, https://www.mass.gov/doc/ccis-webinar-mental-health/download (June 8, 2021).
 Lora-Pimentel v. Girard, No. 1884CV01073, 2020 WL 4347240, at *2 (Mass. Super. June 23, 2020) (Gordon, J.); Donovan, 2000 WL 1257463 at *4.
 See, e.g., Doe v. Roman Catholic Bishop of Worcester, No. 20042511C, 2006 WL 620701, at *2 (Mass. Super. Feb. 2, 2006) (Locke, J.); Donovan, 2000 WL 1257463 at *7.
 See supra notes 5-8.
 Silvestri, 2016 WL 778358 at *4.
 Jaffee, 518 U.S. at 15 (internal quotation omitted).
 Id. at 11, 15.