DACA, Dreamers, and the Limits of Prosecutorial Discretion: DHS v. Regents of the University of California

by Ilana Etkin Greenstein

Heads Up

On June 18, 2020, the U.S. Supreme Court issued a narrow 5-4 opinion in Department of Homeland Security et. al. v.  Regents of the University of California et.  al., Slip Op. No. 18-587 591 U.S. __ (2020) (“Regents”) that halted the Trump Administration’s plan, announced in September 2017, to “immediately terminate” the Deferred Action for Childhood Arrivals (“DACA”) program. The decision extended the life of an immigration policy which, since inception in 2012 under the Obama Administration, has provided more than 600,000 young undocumented immigrants with stays of deportation and the opportunity to live and work with authorization in the United States. In response to the Regents setback which left the DACA Memorandum in place, on July 28, 2020, DHS announced interim changes that pending its reconsideration of the DACA termination, DHS would continue to reject all new and pending DACA requests and associated employment authorization applications as it had been since 2017, would shorten the renewal of DACA and associated work authorization to one year, and exercise its discretion to reject applications for advance parole and to terminate or deny any deferred action requests. This article reviews Regents’ affirmation of the principles of reasoned agency decision-making and its implications for the DHS’ future actions to scale back or completely and permanently terminate DACA.

The History: Failed Legislation and the Dreamers

Beginning in 2001 with the Development, Relief, and Education for Alien Minors (“DREAM”) Act,[1] and in the 18 years that followed, at least ten versions of legislation were introduced in Congress, including most recently in May 2019,[2] to provide undocumented minors with a path to immigration status and citizenship. A movement of popularly known as the “Dreamers” sprang up in support. While the various versions of the Dream Act contained some key differences, each would have provided a pathway to legal immigration status for certain undocumented individuals brought to the U.S. as children. Although each bill enjoyed voter and bipartisan Congressional support[3]—with some versions garnering as many as 48 co-sponsors in the Senate and 152 in the House—none became law.[4]

Acts of Administrative Grace: DACA and DAPA

DACA was established on June 15, 2012 as an act of administrative grace for the Dreamers in the absence of Congressional action. The program was instituted and implemented through a DHS policy memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (“DACA Memorandum”) and issued at the direction of then-President Barack Obama. Unlike the Dream Act, DACA does not confer an immigration status or provide a pathway to citizenship, but is the exercise of prosecutorial discretion to forbear from exercising removal actions with respect to certain non-citizens between the ages of 15 and 30, who had been brought to the United States as children more than five years previously, and who had either graduated from high school or college in the U.S., earned a G.E.D., or served in the U.S. Armed Forces. DACA-eligible individuals who are granted deferred action in two-year increments are also eligible under preexisting regulations for certain attendant benefits, such the opportunity to apply for employment authorization, renewable for as long as the recipient remains eligible for DACA and the DACA Memorandum remains in effect. The valid scope of the DACA program depends on the Executive Branch’s inherent authority to exercise prosecutorial discretion within the framework of existing law.

Two years after the initial DACA memo, DHS issued a new memorandum to expand DACA eligibility by removing the age cap, extending the DACA renewal and work authorization to three-year increments, and adjusting the date-of-entry requirement from June 15, 2007 to January 1, 2010, and to create a new, related, program titled Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA Memorandum”). DAPA would have offered approximately 4.3 million undocumented parents of U.S. citizen or lawful permanent resident children the same forbearance from removal and opportunity to apply for work authorization as afforded to DACA recipients. Like the DACA Memorandum, the DAPA Memorandum expressly stated that the DAPA policy “confer[s] no substantive right, immigration status or pathway to citizenship.”

Litigation, an Administrative About-Face, and More Litigation

Before DAPA went into effect, Texas and 25 other states with Republican governors filed suit against the U.S. seeking injunctive relief from both DAPA and the DACA expansion, arguing that DAPA violates the Constitution and federal statutes. On February 16, 2015, a preliminary injunction issued barring the implementation of DAPA, which was affirmed by a three-member panel of the Fifth Circuit Court of Appeals with one dissent, and by a deadlocked 4-4 Supreme Court which left the lower court’s preliminary injunction in place. On June 15, 2017, the newly inaugurated Trump Administration rescinded the DAPA Memorandum, and the state plaintiffs voluntarily dismissed the pending litigation, terminating the hope that the case would reach the Supreme Court on the merits.

Three months later, on September 5, 2017, then-Attorney General Jefferson B. Sessions III announced that DACA conferred federal benefits that exceeded the scope of DHS’s authority. Subsequently, in 2017 and 2018, DHS issued memoranda to rescind the 2012 DACA Memorandum, with then-Acting Secretaries Elaine Duke and Kirstjen Nielsen, respectively, ordering their constituent bureaus to wind down the program.

In response, several groups of plaintiffs filed suit in federal district courts in California, New York, and the District of Columbia, arguing that DHS’s decision to rescind DACA was arbitrary and capricious in violation of the Administrative Procedure Act (“APA”) and infringed the plaintiffs’ right to equal protection under the Fifth Amendment. The cases made their ways up through the Second, Ninth, and D.C. Circuits, respectively. While those appeals were pending, the government filed for certiorari in three of those cases—Regents (18-587), Trump v. National Ass’n for the Advancement of Colored People (18-588), and Wolf v. Batalla Vidal (18-589)—which were granted and consolidated for Supreme Court review and oral argument on November 12, 2019.

The Regents Decision:  Federal Jurisdiction and the Limits of Prosecutorial Discretion

On June 20, 2020, Chief Justice John Roberts, joining the Court’s four more liberal justices, wrote the narrow Regents decision that vacated the DHS’s 2017 rescission of the DACA Memorandum. The scope of the Regents decision was limited. The Court did “not decide whether DACA or its rescission are sound policies,”[5] did not affirm the legality of the DACA program, or order the DHS to restore and maintain the DACA policy in full force pending any agency reconsideration of the policy. Indeed, there was no dispute that the scope of DHS’ prosecutorial discretion includes the legal authority to rescind the program. Rather, the dispute was narrowly about whether the agency followed reasoned agency decisionmaking procedures in doing so, and whether the Court had jurisdiction to review the agency’s decision.[6]

As a preliminary matter, on the threshold issue of reviewability, the Court held that neither of the jurisdiction-stripping provisions of the Immigration and Nationality Act (“INA”), 8 USC §1252(b)(9), which bars judicial review of claims arising from an “action or proceeding brought to remove an alien” from the United States, nor §1252(g), which bars review of cases “arising from” decisions “to commence proceedings, adjudicate cases, or execute removal orders,” divested it of jurisdiction to review whether DHS’s termination of the DACA program was arbitrary and capricious under the Administrative Procedure Act.  Slip Op. at 12.

The Court also determined that there was no plausible inference that the rescission was motivated by racial animus in violation of the Equal Protection Clause of the Fifth Amendment.

Turning to the merits, the Court considered whether DHS’s decision to rescind DACA was arbitrary and capricious or, as the government asserted, an appropriate response to the Attorney General’s determination that the DACA program violated the INA and raised important policy concerns. The Court acknowledged that “[w]hether DACA is illegal is, of course, a legal determination, and therefore a question for the Attorney General.” The Court also recognized that DHS has the discretion to determine how to address the DOJ’s finding of illegality and relevant policy concerns.[7] Nonetheless, the Court held that the APA required the agency to engage in a reasoned assessment of those legal and policy issues, including potential reliance on the program, in determining whether and how to end it.

In deciding that the agency termination of DACA was arbitrary and capricious because DHS failed to provide a reasoned explanation of the scope of the agency’s prosecutorial discretion and failed to exercise that discretion in a reasonable manner, the Court distinguished between dual facets of DACA that DHS had erroneously painted with a single brush:  (1) protection from deportation (forbearance) and (2) eligibility for certain attendant benefits under other preexisting regulations, including employment authorization. The Court reasoned that, although the Attorney General had determined that DACA conferred federal benefits that exceeded the scope of DHS’s authority, there was not also consideration of “whether to retain forbearance and what if anything to do about the hardship to DACA recipients” with “legitimate reliance” on the DACA program benefits. Accordingly, the agency acted arbitrarily and capriciously without explanation, in violation of the requirement for reasoned decision-making under the APA, and the rescission must be vacated:[8]

“Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.”[9]

Tomorrow and Beyond:  What Does the Future Hold for the Dreamers?

While Regents was pending before the Supreme Court, a separate suit was in the federal district court in Maryland, Casa de Maryland v DHS, also challenging the DACA rescission. On July 17, 2020, the court in that case entered its order vacating the DACA rescission memo in light of the Supreme Court’s decision in Regents, and enjoining the agency from implementing or enforcing the rescission.[10] Casa de Maryland, in other words, explicitly restores the program to its pre-September 5, 2017 status.

On July 28, 2020, however, Acting DHS Secretary Chad F. Wolf issued yet another memorandum to the three constituent bureaus charged with implementing the DACA program.  The Wolf memorandum clarifies the agency’s legal and policy concerns with continuing the program, rescinds DHS’ 2017 Duke and 2018 Nielsen memoranda, and instructs that DHS shall, among other things, reject all initial DACA requests.[11] Whether the 2020 Wolf memorandum will withstand a legal challenge remains to be seen.

So where do these developments leave the hundreds of thousands of young people who are potentially eligible for DACA benefits?  For those who had applied for and been granted DACA at some point in the past, the answer is relatively clear.  Under the agency’s guidance as it existed prior to Regents:[12]

  • Current DACA recipients: People who currently have DACA can apply to renew it;
  • Expired DACA recipients (less than one year): People whose DACA expired one year ago or less can apply to renew it;
  • Expired DACA recipients (more than one year): People whose DACA expired more than one year ago may not apply for renewal, but may make an initial DACA request.[13]
  • Terminated DACA: People whose DACA has been terminated may file an initial request.

There is, however, no guarantee that the program will remain in place in the long term. The Executive has full authority to end the DACA program; all the Supreme Court required was that it refrain from doing so in an arbitrary and capricious manner, and that it articulate a reasoned explanation for its decision.  Whether individuals who had never been granted DACA, but who are arguably eligible to apply now, remains unclear.[14] The Supreme Court and Maryland District Court orders each require DHS to maintain the program under the 2012 guidelines unless and until the agency follows correct procedures to terminate it.

Additionally, for all that Regents did to provide a respite for those who have relied on DACA, a separate case remains pending in the federal district court in the Southern District of Texas that could have even greater stakes. In Texas v. U.S. (1:18-cv-068), state attorneys general challenge the constitutionality of DACA. That case, which is before the same judge who issued the injunction barring implementation of the DAPA memorandum, was stayed pending Regents. Now, with each side claiming that Regents supports its position, Plaintiffs have sought to have their summary judgment motion heard in August 2020, while the intervening DACA recipients have sought to stay the action.

Of course, even Texas v U.S. side-steps the core issue: the millions of young people who are working, studying, serving in our armed forces, contributing to our society every day and continue to have no immigration status at all.[15] Although certainly a welcome respite for the hundreds of thousands of young people who have been protected under the policy over the years, DACA is still nothing more than an act of administrative grace with no permanent benefits and no potential for durable relief.  It is not, strictly speaking, a legal status,[16] and confers nothing more than an impermanent limbo. It remains that Congress has the ultimate authority to decide the future of the Dreamers – to let them languish in the shadows or to provide a path to durable legal status by legislation.

[1] S. 1291, 107th Cong. (2001).

[2] S. 1291, 107th Cong. (2001); S. 1545, 108th Cong. (2003); H.R. 1648, 108th Cong. (2003); S. 2075, 109th Cong. (2005); H.R.5131, 109th Cong. (2005); S.2205, 110th Cong. (2007); H.R. 1275, 110th Cong. (2007); H.R. 5241, 111th Cong. (2010); S. 729, 111th Cong. (2010); S. 3992, 111th Cong. (2010); H.R. 1842, 112th Cong. (2011); S. 952, 112th Cong. (2011); H.R. 1468, 115th Cong. (2017); H.R. 3591, 115th Cong. (2017) H.R. 2820, 116th Cong. (2019).

[3] In a recent survey by the Pew Research Group, 91% of Democrats and 54% of Republicans favored granting legal status to undocumented immigrants who were brought to the U.S. as children.

[4] In 2010, the bill fell just five votes short of the 60 necessary to proceed in the Senate.  H.R. 5241, 111th Cong. (2010); 12/18/2010.

[5] Slip Op. at 29.

[6] Slip Op. at 9.

[7] Slip Op. at 19.

[8] Slip Op. at 21.

[9] Slip Op. at 29.

[10] CASA de Maryland, et al. v. Dept. of Homeland Security, et al., 8:17-cv-02942 (D.Md.)

[11] In addition to precluding new initial applications, the 2020 memo limits DACA extensions and associated employment authorization to periods of one year, and precludes the agency from granting DACA recipients authorization to travel outside the United States (advance parole).

[12]  https://www.uscis.gov/humanitarian/deferred-action-for-childhood-arrivals-response-to-january-2018-preliminary-injunction

[13] The distinction between initial and renewal applications relates only to the documentation required for each:  Initial applicants must submit documentation to establish all of the eligibility requirements; renewal applicants are not required to resubmit documentation filed with their initial applications.  https://www.uscis.gov/sites/default/files/document/forms/i-821dinstr.pdf

[14] Because most DACA recipients must be at least fifteen years old, there are a significant number of young people who did not qualify for DACA prior to the 2017 rescission, but who are now potentially eligible to apply.  The Migration Policy Institute puts this number at approximately 66,000.  https://twitter.com/MigrationPolicy/status/1273662071146778624

[15] In 2012, just prior to DACA’s implementation, the Migration Policy Institute estimated that there were approximately 3.2 million undocumented children and young adults under the age of 24 living in the United States.  https://newscenter.sdsu.edu/education/cescal-conference/files/06163-7_Data_One_Sheet.pdf

[16] https://www.uscis.gov/archive/consideration-of-deferred-action-for-childhood-arrivals-daca

 

Ilana Etkin Greenstein is Senior Technical Assistance Attorney at the Immigration Justice Campaign.


E.K. v. S.C.: A New Family Law Removal Inquiry Established by the Appeals Court

by Jessica Dubin

Heads Up

In E.K. v. S.C., 97 Mass. App. Ct. 403 (2020), the Appeals Court established a new removal inquiry that applies when an out-of-state, non-custodial parent seeks custody of a child living in Massachusetts and requests permission to move the child to the state where that parent resides. Previously, case law had addressed only the standards applicable to requests to remove a child out-of-state by a parent living in Massachusetts, and had established three different inquiries depending on the child’s custodial status.[1]

Background

The parties in this case were never married and had one child. As part of the judgment of paternity, the court awarded the parties shared legal custody of their child, primary physical custody to the mother, and parenting time of one weeknight per week and every other weekend to the father. Approximately six years later, the father filed a Complaint for Modification seeking sole legal custody and permission to move the child to New Hampshire, where the father already lived.  He alleged that the mother was acting contrary to the health, education and welfare of the child by unilaterally stopping the child’s medication, withdrawing him from a special needs school program without the father’s consent, and maintaining uninhabitable living conditions. After a bench trial, the judge found for the father.

The Appeals Court’s Decision

After concluding that the trial judge’s detailed findings of fact supported her conclusion that a material and substantial change of circumstances had occurred warranting a change in custody, the Appeals Court turned to the novel question of what removal inquiry should apply when a non-custodial parent seeks to relocate a child out-of-state to the state where that parent resides. The Court set forth a three-part inquiry:

  1. First, the judge must analyze whether a parent’s move out-of-state was motivated by a desire to deprive the custodial parent of time with the child. If the judge finds that the intent of the move was not to interfere with the custodial parent’s relationship with the child and that the move was not designed to establish a basis to request a change in physical custody, then the judge should proceed to the second inquiry.
  2. Second, the judge must determine whether the out-of-state parent is rooted in the community where that parent seeks to move the child. Factors analyzed as part of this inquiry may include the parent’s employment, financial situation, housing, family composition, and social and emotional benefits of that parent’s circumstances. If the judge finds that the parent is rooted in the community, this may be considered a “real advantage” to that parent. Once the out-of-state-parent demonstrates a “good, sincere reason” for the move, the judge should proceed to the third inquiry.
  3. If the first two inquiries favor the out-of-state parent, then the judge must determine the best interests of the child, including the impact the proposed move would have on each parent and the resultant effect on the child. The factors to be considered in this analysis include: “(1) whether the quality of the child[]’s [life] will be improved, including any improvement that ‘may flow from an improvement in the quality of the custodial parent’s life;’ (2) any possible ‘adverse effect of the elimination or curtailment of the child[ ]’s association with the noncustodial parent’; (3) ‘the extent to which moving or not moving will affect the [child’s] emotional, physical, or developmental needs’; (4) the interests of both parents; and (5) the possibility of an alternative visitation schedule for the noncustodial parent.” Murray v. Super, 87 Mass. App. Ct. 146, 150 (2015), quoting Dickenson v. Cogswell, 66 Mass. App. Ct. 442, 447 (2006).

Applying the “clearly erroneous” standard of review, the Appeals Court affirmed the trial judge’s findings that the father’s move to New Hampshire occurred long before any custody modification proceeding was contemplated and that he was firmly rooted in his community. Accordingly, the Court concluded that the father’s decision to move to and remain in New Hampshire provided him with a real advantage. Proceeding to the best interests of the child analysis, the Court held that the trial judge’s findings addressed all of the Murray factors and were supported by the record. The Court accepted the judge’s final determination that the father had the better ability to address the child’s significant needs.

Conclusion

Four different removal inquiries now exist. Which inquiry will apply depends on the facts of each particular case. The four inquiries that exist after E K. v. S.C. are as follows:

  1. when a parent who lives in Massachusetts has sole physical custody and seeks removal to another state, that request is analyzed using the real advantage standard pursuant to Yannas v. Frondistou-Yannas, 395 Mass. 704, 711-712 (1985);
  2. when a parent who lives in Massachusetts has shared physical custody and seeks removal to another state, that request is analyzed using the best interests of the child standard pursuant to Mason v. Coleman, 447 Mass. 177, 184-185 (2006);
  3. when a parent who lives in Massachusetts seeks removal to another state and no prior custody order exists, a judge must first perform a functional analysis regarding the parties’ respective parenting responsibilities to determine whether those more closely approximate sole or shared custody, and then apply the corresponding Yannas or Mason standard, pursuant to Miller v. Miller, 478 Mass. 642, 643 (2018); and
  4. when a non-custodial parent who lives outside of Massachusetts seeks removal to the state where the parent resides, the request is analyzed using the three-pronged inquiry outlined above pursuant to E.K. v. S.C.

[1] Although beyond the scope of this article, the Appeals Court also resolved these procedural issues: (i) motions for reconsideration continue to be subject to the requirements of  Standing Order 2-99 even though such motions were deleted from the Standing Order in 2012; (ii) although the trial judge should not have issued a temporary order changing custody without contemporaneous findings of fact, her failure to do so should not result in reversal on technical grounds when the mother failed to demonstrate prejudice from the delayed findings of fact; and (iii) the trial judge did not abuse her discretion in denying the mother’s motion to reopen evidence.

 

Jessica Dubin is a partner at Lee & Rivers LLP where she concentrates her practice on all aspects of family law.  Jessica is a member of the Boston Bar Association’s Council and Family Law Section Steering Committee, and serves on the Board of Editors of The Boston Bar Journal


Don’t Say That! Are Non-Disparagement Orders Lawful?

by Fern Frolin and Timothy D. Braughler

Heads Up

 

In an opinion at the intersection of family and constitutional law, the Massachusetts Supreme Judicial Court (SJC) recently examined a parental non-disparagement order issued in child custody proceedings. In Shak v. Shak, 484 Mass. 658 (2020), the SJC held that an order prohibiting parents from disparaging one another was an unconstitutional restraint on speech in violation of the First Amendment to the United States Constitution and Article 16 of the Declaration of Rights, as amended by art. 77 of the Amendments.

Masha and Ronnie Shak had one child. When the child was one-year old, Masha filed for divorce and soon sought an emergency motion requiring Ronnie to vacate the marital home. A Probate and Family Court judge granted Masha temporary sole custody of the child and ordered Ronnie to vacate the home. The judge also issued temporary orders restraining both parents from posting information about the litigation on social media or disparaging the other, “especially when within the hearing range of the child.” Id. at 659.

Masha thereafter filed a complaint for civil contempt alleging that Ronnie had published numerous disparaging posts on social media in violation of the order.  Ronnie answered, in part, that the judge lacked authority “to issue [a] prior restraint on speech.” Id.

At the contempt hearing, a second Probate and Family Court judge held that the non-disparagement order as entered constituted an impermissible prior restraint of speech. The judge concluded, however, that a more narrowly drawn non-disparagement order that furthered a compelling State interest would be acceptable. The second judge redrew the non-disparagement order in language that (1) limited the prohibition on social media posts to disparagement “about the other party’s morality” or parenting ability; (2) prohibited any non-media disparagement only where the child was within 100 feet of the disparaging parent or where the child might otherwise see, hear or read the disparagement; and (3) provided for termination of the order on the child’s fourteenth  birthday. Id. at 660.

Rather than immediately implementing the new, narrower order, the judge reported two questions to the Appeals Court. First, are non-disparagement orders issued in the context of divorce litigation an impermissible restraint on free speech? Second, does protection of a minor child’s best interest render non-disparagement orders issued in the context of divorce litigation a compelling public interest and, therefore, a permissible limitation on free speech? The SJC granted an application for direct appellate review but declined to address the specific reported questions and, instead, considered whether the second judge’s non-disparagement order could stand.

“The term ‘prior restraint’ is used ‘to describe any administrative or judicial order forbidding certain communications when issued in advance of the time that such communications are to occur.’” Id., at 661, citing Alexander v. United States, 509 U.S. 544, 550 (1993), quoting M. Nimmer, Nimmer on Freedom of Speech § 4.03, at 4-14 (1984). By definition, a non-disparagement injunction prevents speech that has not yet happened is therefore a prior restraint. The SJC stressed that prior restraint on otherwise protected speech is the “most serious and the least tolerable infringement on First Amendment rights.” Id. at 661, quoting Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976). Therefore, a prior restraint on speech is acceptable only where the harm avoided is “grave”; the probability of the harm absent restriction is “all but certain”; and there exists no less restrictive means to mitigate the harm. Id. at 662. In short, prior restraint on speech requires exceptionally significant justification. Id. at 663, citing Commonwealth v. Barnes, 461 Mass. 644, 652 (2012).

The SJC accepted hypothetically the Commonwealth’s interest in protecting children “from emotional and psychological harm that might follow from exposure to one parent’s … disparaging words about the other,” but declined to hold that the interest is sufficiently “weighty” to justify prior restraints on speech. Id. at 663-64. The SJC held that in Shak, there was no showing that, absent the order, harm to this particular child was “either grave or certain. . .  .” Id. at 664. Noting the child’s young age, inability to read social media, and the absence of evidence of unique vulnerabilities, the SJC held the order unconstitutional due to lack of findings of grave, imminent harm to the child. The SJC continued that concerns about potential harm should the child discover the speech in the future were too speculative to justify a prior restraint. In so concluding, the SJC noted that anti-harassment and tort remedies may be available to a disparaged parent and voluntary non-disparagement agreements entered into by parents remain enforceable. It further reminded lawyers and parents that a parent’s disparaging language may well factor into custody determinations.

Shak instructs family law attorneys seeking non-disparagement orders to offer case-specific evidence of a child’s unique vulnerabilities, perhaps with evidence of past harmful consequences of the child’s exposure to parental conflict. Expert testimony might well bolster such evidence.  However, even if one secures a non-disparagement order, enforcement through contempt proceedings can be difficult. The order must be clear and unequivocal. In re Birchall, 454 Mass. 837, 838-39 (2009). Furthermore, courts may struggle with remedies for parents disparaging one another. But cf. Schechter v. Schechter, 88 Mass. App. Ct. 239, 247-48 (2015) (affirming suspension of parenting time where father’s negative behavior included disparaging mother in child’s presence).

Enforcement difficulties aside, family law attorneys should not misconstrue Shak to mean that non-disparagement orders should be avoided as unconstitutional. Indeed, the SJC especially endorsed voluntary non-disparagement orders, crafted by parties committed to civility, and cooperation. These agreements focus on the children’s best interests and remind parents that children benefit from parental harmony. Voluntary orders repeat what thoughtful parents already know: children experience disparaging language as conflict, and divorce conflict stresses children. The parents’ mutual promises in a notarized, court-approved agreement to refrain from harmful conduct may be far more meaningful to children and parents than a court-imposed speech limiting order ever could be.

 

Fern Frolin is Of Counsel to Mirick O’Connell, where focuses her practice on complex matrimonial cases. She strongly believes that nearly all family law matters can and should be settled and that the best matrimonial lawyers counsel their clients to consider their children’s best interests paramount in their settlement negotiations.

Tim Braughler is a Partner of Mirick O’Connell in the firm’s Boston office. Tim specializes in all aspects of family law including divorce, child custody, child support, alimony, paternity, adoptions, restraining orders, and pre- and post-nuptial agreements.


Massachusetts (Temporarily!) Allows Remote Notarization

by Rebecca Tunney, Kerry E. Spindler, and Sara Goldman Curley

Heads Up

On April 27, 2020, Massachusetts became the latest state to enact remote notarization and witnessing through “an Act providing for virtual notarization to address the circumstances related to COVID-19” (the “Act”). The Act temporarily authorizes the affirmation, acknowledgment or other notarial acts of documents utilizing electronic video conferencing in real time. The Act will be in effect until 3 business days after the termination of Governor Baker’s declared state of emergency. See Executive Order 591.

Under M.G.L. c 222 §16, “a notary public shall not perform a notarial act if… the principal is not in the notary public’s presence at the time of notarization.” The outbreak of the novel coronavirus (also known as COVID-19), and Governor Baker’s resulting declaration of a state of emergency in Massachusetts on March 10, 2020, have made it difficult to execute documents “in the presence of” a notary public (“notary”). This has caused problems for those who need to sign documents that require notarization, either by statute or pursuant to best practice, including many estate planning and real estate documents.

Requirements for Remote Notarizations

The Act provides a critical alternative to in-person notarizations during this period of required physical distancing. The Act also permits remote witnessing if the witness’s signature is notarized, noting that the signature of any witness who participates in the remote notarization will be valid as if the witness had been present to sign in person (i.e., witnesses under a will must still qualify under M.G.L. c 190B § 2-505). The Act still requires “wet” signatures and does not authorize electronic signatures.

Under Section 3(a) of the Act, any notarial act performed by a notary appointed pursuant to M.G.L. c 222 § 1A utilizing electronic video conferencing (“remote notarization”) will be valid and effective if:

(i) The notary and each principal are physically located within Massachusetts. “Principal” is defined as any person whose signature is being notarized, including witnesses;

(ii) The notary creates an audio and video recording of the notarial act and obtains the verbal assent of each principal to do so;

(iii) The notary observes each principal’s execution of a document;

(iv) Each principal who is not personally known to the notary visually displays federal or state issued identification bearing a photograph and signature of the principal (or a passport or other government-issued identification that evidences the principal’s nationality or residence if the principal is not a US citizen) during the electronic videoconference, and transmits a copy of the identification to the notary. With respect to any document requiring notarization and executed in the course of closing a transaction involving a mortgage or other conveyance of title to real estate (hereinafter, “Closing Documents”), Section 6(b) provides that any principal who is not personally known to the notary must also display a second form of identification containing the principal’s name (specific examples of forms of identification are set forth in Section 6(b));

(v) Each principal makes the necessary acknowledgment, affirmation or other act to the notary. In addition, each principal (a) swears or affirms under the penalties of perjury that the principal is physically located in Massachusetts, (b) discloses any other person present in the room, and (c) makes such person viewable to the notary; and

(vi) Each principal causes the original executed document to be physically delivered to the notary in accordance with the notary’s instructions.

Except for Closing Documents, the notary may sign and stamp the document upon satisfaction of the preceding (i) through (vi), at which point Section 3(b) of the Act provides that the notarial act shall be complete. Since one of the requirements for completion is the delivery of the executed document to the notary, some practitioners recommend that the notary sign the document twice: first during the videoconference after the principal signs, and again when the notary receives and collates the original documents. The notary should affix his or her seal only once, on receipt of the original documents.

Upon receipt of executed Closing Documents, the notary and each principal must engage in a second recorded video conference during which each principal verifies that the document received by the notary is the same document executed during the first video conference. See Section 3(a)(vi). The principal must again affirm to being physically located in Massachusetts, disclose any person also present in the room, and make such persons viewable to the notary. Id. Having all the originals in hand, the notary signs and stamps the Closing Document during this second video conference. Id.

In each case, the notary block must recite (i) that the document was notarized remotely pursuant to the Act, (ii) the county in which the notary was located when the notarial act was completed, and (iii) the date the notarial act was completed. See Section 3(c). To avoid confusion, the notary block may include both the date and county in which the notary was located when the principal was remotely before the notary, and the date and county in which the notary was located when the notary signed and stamped the executed originals. Id.

The notary must also execute an affidavit confirming that the notary (i) visually inspected each principal’s identification during the video conference and received a copy thereof (if a principal is not personally known to the notary), (ii) obtained consent from each principal to record the proceeding, (iii) received affirmation that each principal is physically in Massachusetts; and (iv) was informed of any person present in the room, and such person’s  relationship to each principal is listed on the affidavit. See Section 3(d). With respect to Closing Documents, the affidavit must address both video conferences.

Any will, nomination of guardian or conservator, caregiver authorization affidavit, trust, durable power of attorney, health care proxy or other authorization under the federal Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) (hereinafter, collectively “Estate Planning Documents”) is considered complete when all original counterparts and the notary’s affidavit are compiled. See Section 3(e).

Retention Requirements

The notary must retain for 10 years a copy of (i) each principal’s evidence of identity (although there is no requirement to retain a copy of a second form of identification with respect to Closing Documents), (ii) the affidavit executed by the notary, and (iii) the audio and video recording of the remote notarization. See Sections 3(a)(iii), 3(d), 3(f).

Restrictions on Who Can Notarize

Only notaries who are licensed to practice law in Massachusetts or a paralegal under the direct supervision of such an attorney may use remote notarization for Estate Planning Documents and Closing Documents. If the notary is a paralegal (which is not a defined term in the Act), the supervising attorney must retain the required documents and recordings for 10 years. Other documents may be notarized by any Massachusetts notary. See Section 6(a).

Conclusion

The Act is the product of several weeks of analysis and negotiation, beginning almost immediately after the state of emergency was declared, among representatives from a number of bar organizations, attorneys from multiple practice areas, private industry, government agencies and Massachusetts legislators.  While there was ultimately broad support for the Act in the face of the current public health crisis, many practitioners remain wary of making such a procedure permanent given the potential for abuse.

 

Rebecca Tunney is an associate at Goulston & Storrs, P.C. She assists individuals and families with complex estate plans involving estate, gift and generation-skipping transfer tax planning, estate and trust administration, international tax planning, charitable giving and business succession planning.

Kerry L. Spindler is a Director in the Private Client & Trust practice group at Goulston & Storrs PC, where she focuses on estate, tax, wealth transfer and charitable planning, as well as estate and trust administration. She currently serves as co-chair of the Trusts & Estates Section of the Boston Bar Association.

Sara Goldman Curley is a partner and deputy chair of the Private Client Department at Nutter McClennen & Fish, LLP, where she assists clients on a broad range of estate planning, estate administration and trust administration matters. She currently serves as co-chair of the Trusts & Estates Section of the Boston Bar Association.


Massachusetts Wage and Hour Laws Apply to Au Pairs

by Andrea Peraner-Sweet and Lauren D. Song

Heads Up

On December 2, 2019, in Capron v. Attorney General of Massachusetts, 944 F.3d 9 (2019) (“Capron”), the First Circuit Court of Appeals held that federal laws regulating the J-1 Visa Exchange Visitor Program for au pairs (“Au Pair Program”) do not preempt Massachusetts wage and hour laws applicable to domestic worker arrangements: Massachusetts Domestic Workers Bill of Rights Act  (“DWBRA”), G.L. c. 149, §§ 190191, and the Massachusetts’ Fair Wage Law, G.L. c. 151, § 1. This means that host families in the Commonwealth are obligated to pay au pairs at least the state minimum wage ($12.75/hour effective January 1, 2020) and overtime, higher compensation than the federal $7.25 hourly rate currently required under the Au Pair Program. It also means that host families–as employers of domestic workers–must become familiar with the DWBRA’s requirements because failure to comply with Massachusetts wage and hour laws can expose host families to substantial damages, including treble damages, attorneys’ fees and costs. See Andrea Peraner-Sweet, How to Hire a Domestic Worker and Stay Out of Trouble, 62 Boston Bar J. (Summer 2018).

The Au Pair Program And Its Compensation

As described in Capron, the Au Pair Program is a cultural exchange program regulated by the United States Department of State (“DOS”) through which foreign individuals can obtain J-1 Visas and be matched with United States host families to provide up to 45 hours a week of child care services while pursuing a post-secondary education. 22 C.F.R. § 62.31. The DOS administers the Au Pair Program through private placement agencies it designates to conduct DOS-approved exchange programs (“Sponsors). The Sponsors select and match participants with host families. 22. C.F.R. § 62.10.

The Au Pair Program regulations require Sponsors to ensure that au pairs are compensated “at a weekly rate based upon 45 hours of child care services per week and paid in conformance with the requirements of the [FLSA] as interpreted and implemented by the [Department of Labor (DOL)].” 22 C.F.R. § 62.31(j)(1). The DOL has determined that Au Pair Program participants are “employees” within the meaning of FLSA and, thus, entitled to federal minimum wage. 29 U.S.C. § 206(a). The FLSA, however, exempts live-in domestic workers from overtime payment. 29 U.S.C. § 213(b)(21). DOL regulations also permit deductions for the costs of room and board:  either a fixed credit amount that is tied to a percentage of the federal minimum wage, or  the actual, itemized costs, provided the itemized deductions are supported by adequate records. 29 C.F.R. § 552.100(c)(d). Importantly, as the First Circuit notes, the FLSA contains a savings clause that “[n]o provision of this chapter or of any order thereunder shall excuse noncompliance with any Federal or State law or municipal ordinance establishing a minimum wage higher than the minimum wage established under this chapter.” 944 F.3d at 18 (quoting 29 U.S.C. § 218(a)).

Massachusetts Au Pair Compensation

The DWBRA defines au pairs as “employees” and “domestic workers” and their host families as “employers.” G.L. c.  149, § 190(a). Under the DWBRA and Fair Wage Law, au pairs are entitled to the state minimum wage and overtime pay at 1.5 times the hourly rate for “working time” over 40 hours per week. G.L. c. 151, § 1; 940 C.M.R. 32.03(3). An au pair’s “working time” includes all hours that the au pair is required to be on duty including meal, rest and sleep periods unless during those periods the au pair is free to leave the host family’s premises, use the time for their sole benefit and is relieved of all duties during these time periods. Id., 32.02. Host families are required to keep records of an au pair’s hours worked. Id., 32.04(2). The DWBRA also permits deductions for lodging and food, if agreed to in advance and in writing by the domestic worker, which are at a fixed credit amount of $35 per week for a single-occupancy room and $1.25 for breakfast, $2.25 for lunch, and $2.25 for dinner. Id., 32.03(5)(b)-(c).

Additionally, au pairs are entitled to at least 24 consecutive hours of rest when working 40 hours per week, workers’ compensation, sick time, and notice of why and when the host family may enter their living space.

The Litigation

In 2016, in response to enactment of the DWBRA, Cultural Care, Inc., a Sponsor au pair placement agency and two former Massachusetts hosts (“Plaintiffs”), sought declaratory and injunctive relief from the United States District Court claiming that the federal laws governing the Au Pair Program impliedly preempted Massachusetts wage and hour laws with respect to au pairs. The District Court found no preemption and dismissed the action, and Plaintiffs appealed.

The Plaintiffs claimed that the Au Pair Program preempted Massachusetts wage and hour laws under “field preemption” and/or “obstacle preemption.” Under “field preemption,”  Plaintiffs argued that the detailed regulatory scheme governing the Au Pair Program together with the federal interest in regulating immigration and managing foreign relations evidenced the federal government’s intent to “occupy the field” of regulation of au pairs, thereby preempting state laws and regulations that might otherwise apply to au pairs. 944 F. 3d at 22. Under “obstacle preemption,” Plaintiffs argued that compliance with Massachusetts wage and hour laws would create an obstacle to achieving the underlying purposes and objectives of the Au Pair Program by frustrating the federal intent to “set a uniform, nationwide ceiling” on compensation obligations and  recordkeeping and administrative burdens. Id. at 26-27.

The First Circuit rejected Plaintiffs’ arguments, concluding that Plaintiffs failed to sustain their burden of proving either field or obstacle preemption. The Court determined that Plaintiffs’ reliance on the DOS’s comprehensive and detailed regulations was insufficient to demonstrate a federal intent to oust a whole field of state employment measures, a “quintessentially local area of regulation.” Id. at 22.  Rather, the Court opined: “It is hardly evident that a federal foreign affairs interest in creating a ‘friendly’ and ‘cooperative’ spirit with other nations is advanced by a program of cultural exchange that, by design, would authorize foreign nationals to be paid less than Americans performing the same work.” Id. at 26.

The Court also rejected Plaintiffs’ obstacle preemption claim that enforcement of Massachusetts’ employment laws would frustrate a federal objective of establishing a nationally uniform compensation scheme for au pair participants. Noting that “the text of the au pair exchange regulations…does not supply the requisite affirmative evidence that the state law measures would pose an obstacle to the accomplishment of the purposes and objectives of the Au Pair Program,” the First Circuit concluded, “[i]n fact, the text of the regulations reflects the DOS’s intention to ensure that the regulations would accommodate the DOL’s [Department of Labor] determination that au pair participants are employees who are entitled to be protected by an independent wage and hour law that is not itself preemptive….[and] that the DOS contemplated that state employment laws would protect exchange visitor program participants from their employers.” Id. at 32-33 (underline in original).

What do host families need to know now?

It is not yet clear whether Capron will apply retroactively or whether Massachusetts host families will be liable for back wages for au pairs who were not compensated in accordance with state wage and hour laws. The Attorney General’s office has indicated that, “at this time,” its focus is on ensuring that au pair agencies bring their programs into compliance with Massachusetts laws and it does not intend to enforce the DWBRA or other wage and hour laws against host families.  The Attorney General’s office does note, however, that it has no control over private litigation.  As of the time of this writing, at least three putative class action suits and one other action, all by private individuals, have been filed in Middlesex Superior Court against several Sponsor au pair agencies.  No action has yet to be filed against any host families.

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

Lauren D. Song is a Senior Attorney at Greater Boston Legal Services where her practice focuses on affordable housing preservation and development through public-private partnerships.  Lauren is a current member of the Boston Bar Journal.


Massachusetts Expands Voter Access

by Pratt Wiley

Heads Up

The Automatic Voter Registration Act (“AVR Act”), St. 2018, c. 205, signed into law in 2018 by Governor Baker, promises to expand the number of enrolled voters  able to participate in our democracy by removing some of the administrative burdens of registration. Effective January 1, 2020, AVR will replace the current “opt-in” voter registration system with an “opt-out” system through which the Registry of Motor Vehicles (“RMV”) and MassHealth will identify and add eligible citizens residing in Massachusetts to the voter rolls. Individuals will automatically be registered to vote when they apply for or renew their: (1) driver’s license, (2) state-sponsored health insurance, (3) Medicaid benefits, or (4) complete another qualifying transaction at a future-designated AVR agency. The AVR system will use citizenship information, already collected by AVR agencies to enroll voters. The AVR Act directs the Secretary of State to promulgate implementing regulations by July 31, 2019.

AVR expands on the landmark National Voter Registration Act of 1993 (popularly known as the “Motor Voter Act.”). The Motor Voter Act eased the voter registration and maintenance process by requiring states to provide citizens with the opportunity to register to vote when applying for a driver’s license or otherwise engaging with a state agency that provides public assistance. Agencies that already participate in the Motor Voter Registration will continue to do so even if they are not designated as AVR agencies.

How It Will Work

Individuals transacting business at AVR agencies will be asked to provide sworn or verified information of their (a) legal name, (b) age, (c) residence, (d) citizenship, and (e) an electronic signature. AVR agencies must inform individuals of voter eligibility requirements and specify that non-citizens are ineligible and must decline to register to vote. The AVR Act requires AVR agencies to inform applicants that, unless they opt-out, their transaction at the agency will operate as a registration and attestation of their eligibility to vote. Eligible residents who do not decline will automatically be registered to vote as of the date of the qualifying agency transaction. The AVR Act does not change the requirement that voters be registered at least 21 days prior to an election.

AVR agencies will electronically transmit the collected personal information and signatures to the Secretary of State, unless an address is designated as confidential pursuant to G.L. c. 9A, § 8, or any collected information is not internally consistent or otherwise reliable. G.L. c. 51, § 42G ½(e), as amended by the AVR Act. The Secretary in turn will transmit the received data to the board of registrars or election commission in the registrant’s home city or town. Id.

Individuals automatically registered by an AVR agency will have a second opportunity to decline registration (or to select a party affiliation) by responding within 21 days to the notification of registration mailed by their local voter registrars. Voters who do not respond within the 21 days will be deemed registered as of the date they completed their eligible transaction with the designated AVR agency. Additionally, to reduce inaccurate registrations, local registrars will use the Electronic Registration Information Center to notify and confirm registrars new registration addresses.

Protections Afforded by the AVR Act

The Secretary of State is directed by the AVR Act to promulgate regulations to protect the confidentiality of addresses and the reliability of citizenship information.

  • Address Confidentiality

Victims of domestic violence, sexual assault, or stalking in particular are concerned that their name and address information will not remain confidential when provided to a government agency. Recognizing that public policy is not served if people refrain from registering to vote or, more critically, obtaining necessary driver licenses or health services, out of fear for their safety, states that have implemented AVR have taken great care to assure the public that AVR will not increase the risk that their contact information will be publicly shared.

In Massachusetts, current election regulations prohibit registrars and election commissioners from publishing on the voter rolls, the name and residence of voters who are protected by the Address Confidentiality Program (“ACP”) administered by the Secretary of State, protected by a court order, residents in protective shelters, or for whom a chief of police has submitted an affidavit attesting that the voter is entitled to have certain information withheld from the public under G.L. c. 265, § 24C. Under the ACP, domestic violence victims who have relocated are also provided with a substitute address to use in transactions with the RMV and other state entities. As inserted by the AVR Act, G.L. c. 51, § 65(e) requires the Secretary of State to adopt regulations addressing confidentiality program participants under the ACP who interact with the RMV, MassHealth, and other AVR agencies.

  • Citizenship Questions

A common concern regarding AVR and other voter registration modernization is that ineligible residents will be unintentionally registered to vote. Massachusetts, like every other state, allows documented noncitizens to obtain driver’s licenses with proof of lawful residence. California, unlike Massachusetts, allows undocumented aliens to obtain a special driver’s license and implemented AVR in 2018. While California did experience some initial technical difficulties after implementing AVR, state officials reported that “no people in the country illegally — who are eligible to get a special driver’s license in California — were mistakenly registered to vote,” and the Brenner Center for Justice did not report any incidents of non-citizens voting in California.

G.L. c. 51, § 42G ½ (a)(1), as inserted by the AVR Act, allows only state agencies that collect “reliable citizenship information” to participate in the AVR program. Agencies are deemed to collect reliable citizenship information if they “(i) request, in a clear, understandable and consistently stated manner, that customers affirm their citizenship status; and, (ii) collect a signed affirmation of citizenship status or documentary proof of citizenship status such that records of citizens are segregable from non-citizens.” In Massachusetts, citizenship and immigration status is also verified when determining eligibility for Medicaid benefits and state-subsidized healthcare insurance. Voters registered under the AVR will not be liable for a false claim to citizenship unless they affirmatively assert such eligible citizenship after being notified that their transaction with the agency serves as an attestation of eligibility unless they decline to register and that noncitizens are not eligible to vote.

Impact of AVR

With the AVR Act, Massachusetts joins California, Georgia, Oregon, West Virginia, and eleven other states and the District of Columbia to enact AVR. The AVR policy represents a continued progression in Massachusetts towards the “modernization of the registration process through continued expansion of online voter registration and expanded state collaboration in improving the accuracy of voter lists.”  According to the Brennan Center, which has published a comprehensive report measuring the impact of AVR across the nation, since first being adopted by Oregon in 2014, “AVR markedly increases the number of voters being registered — increases in the number of registrants ranging from 9 to 94 percent. These registration increases are found in big and small states, as well as states with different partisan makeups.” For example, Oregon registered more than 200,000 citizens in the first six months following implementation, a rate over 16 times greater than registered by the DMV under the previous system.  Rhode Island and Connecticut, have implemented variations of AVR, and Rhode Island’s voter registration has increased 47% since its implementation. In California, more than 1.4 million voter registration files were transmitted from the DMV to state election officials in the first four months of implementation. In fact, an estimated 27 million eligible persons would be added to voter rolls across the country if every state adopted automatic voter registration.

President Obama reminded us that we cure the ills in our democracy with more democracy.  Automatic voter registration promises to do that by removing outdated and unnecessary barriers to voter engagement.  As with all reforms, we must ensure AVR’s implementation adheres to the spirit and intent of the law.  But once fully implemented, thousands of our family members, friends, and neighbors in Massachusetts will finally be able to have their voices heard from town halls to the White House

 

Pratt Wiley is the President & CEO of the Partnership, Inc.  He formerly served as the National Director of Voter Expansion for the Democratic National Committee, where he oversaw the Party’s voting rights and voter protection initiatives, from 2013 to 2017.


Obtaining National Consensus on Key Opinion Practices: An Introduction to the Statement of Opinion Practices

by Stanley Keller and Steven O. Weise

Heads Up

Over several years, the Legal Opinions Committee of the American Bar Association’s Business Law Section (the “ABA Legal Opinions Committee”) and the Working Group on Legal Opinions Foundation (“WGLO”) worked jointly on a project to identify key aspects of customary practice and other practices applicable to third-party legal opinions that are commonly understood and accepted throughout the United States.  Third-party legal opinions (also known as “closing opinions”) are sometimes delivered at the closing of a business transaction by counsel for one party to satisfy a condition of the other party’s obligation to close.  The purpose of the joint project was to foster a national opinion practice that is widely recognized and endorsed, building upon the “Statement on the Role of Customary Practice in the Preparation and Understanding of Third-Party Legal Opinions,‎” 63 Bus. Law. 1277 (2008), which was approved by over 30 bar associations and other lawyer groups.

The project was undertaken by a committee of more than 25 members, which included representatives of various state bar groups and others interested in opinion practice.  The members included both lawyers who give opinions and lawyers who are counsel to opinion recipients, and whose primary practice areas included commercial finance transactions, capital markets and securities, and real estate.

The result of the project was the recent issuance of the “Statement of Opinion Practices” (the “Statement”) and related “Core Opinion Principles,” both described below, and their approval by many bar associations and other lawyer groups, including the Boston Bar Association.

The Statement of Opinion Practices updates the “Legal Opinion Principles,” 53 Bus. Law. 831 (1998‎), and selected provisions of the “Guidelines for the Preparation of Closing Opinions,” 57 Bus. Law. 875 (2002) (the “Guidelines”)‎.  The Statement covers such topics as the application of customary practice to third-party legal opinions, the role of facts and assumptions and the law addressed by opinions, as well as key aspects of the opinion process.  By using relatively concise and direct statements, it is designed to be easily understood by those called upon to interpret opinions and to create a common understanding for opinion givers and opinion recipients and their counsel to facilitate the opinion process.

In connection with preparation of the Statement, the project committee also prepared the Core Opinion Principles, which is a more concise document drawn from the Statement and designed to be incorporated by reference in or attached to an opinion letter by those who wish to do so.  The Statement and Core Opinion Principles are accompanied by an “Explanatory Note,” which includes a table of sources from the Legal Opinion Principles and the Guidelines and identifies those provisions of the Guidelines that are updated by the Statement.

The completion, approval and publication of the Statement of Opinion Practices and Core Opinion Principles is a significant accomplishment toward establishing and harmonizing a national third-party legal opinion practice.  The authors of this introduction hope that the Statement and Core Opinion Principles will serve the purpose of facilitating third-party legal opinion practice.

Stanley Keller is a Senior Partner in the Boston office of Locke Lord LLP.  Steven O. Weise is a Partner in the Los Angeles office of Proskauer Rose LLP.  Mr. Keller and Mr. Weise were Co-Chair and Reporter, respectively, for the project group ‎responsible for preparing the Statement of Opinion Practices and related Core Opinion ‎Principles.‎


The Fiduciary Litigation Session

Bob ORegan_102x126by Robert J. O’Regan

Heads Up

There is good news that a second courtroom will shortly expand the Fiduciary Litigation Session of the Probate and Family Court.  This is a pilot program under Standing Order 3-17 (as amended) for complex probate and trust cases.  The FLS gives lawyers and judges a solution to the problem that these complex cases seem to not receive the time or attention that they require in the regular sessions of the overwhelmed Probate and Family Court.

Modeled after the successful Business Litigation Session of the Superior Court, the FLS allows for the transfer of complex contested cases and a narrow band of uncontested cases from courts in Essex, Middlesex, Norfolk, Plymouth, and Suffolk Counties.  It provides capacity, improved case management, and specialized expertise for the most difficult portions of the caseload within the court’s historical jurisdiction.  Cases that qualify for transfer must be non-routine and include will contests, determination of heirs, interpretation of instruments, removals and appointments of fiduciaries, contested fiduciary accounts; and equity actions alleging breaches of fiduciary duty, seeking instructions, and to determine title.

For some time, the probate bar in particular has expressed a sense of frustration that these cases often languish on the crowded dockets of the Probate and Family Court.  As the court’s jurisdiction and responsibilities expanded, particularly after enactment of the equitable division statute and expansion of protective proceedings, the resources in the Probate and Family Court did not keep pace.  Probate and Family Court judges now take the bench with more experience in areas other than probate and trust law.  These have combined to create an impression that matters involving will contests, trust interpretation, and fiduciary accounts are dry academic exercises to be taken up as a last resort.  More than just helping to clear the caseload, the FLS demonstrates the court’s understanding that ongoing trust and estate disputes prevent closure after the death of family members, and that beneficiaries are harmed by delayed (or blocked) distributions or fiduciary misconduct.

These are reasons why transfer into the FLS is intended to be simple and quick. Only cases in which all parties have counsel are eligible.  Transfers can be initiated by the session judge or an attorney, and virtually all requests have been granted.  A key pivot point in the process is that the session judge must recommend the transfer.  Transfers are completely administrative, require no hearing, and are not appealable.

A simple on-line form on the court’s website starts the process. The instructions are clear and easy to follow.  Joint applications are encouraged.  Argument and attachments of court filings are prohibited.  Applications should point out why the expertise and case management advantages of the FSL will move the case to settlement or disposition more effectively.  Objections are due ten days from service of an application.  They should point out why the case is not complex and raise potential conflicts with a transfer.   Both applications and objections must be sent to the session judge and office of the Chief Justice of the Probate and Family Court.  If the session judge recommends transfer, it is then screened by the FLS judge.  To date, only three transfer requests have been screened out at this stage.

Pending motions or assigned trial dates in a case will likely not affect whether a transfer request is allowed, but rather how it is managed in the FLS.  If the issues straddle probate and equity dockets, discovery is mired down, multiple experts or medical evidence will be required, or several days of trial time are unavailable in the session within a reasonable time, the case should be considered for a transfer request.

Because the FLS is intended to promote best case management practices, the standing order requires a case management conference to be held within thirty days after the transfer.  The conference will develop a plan to resolve the case efficiently using any tools available such as ADR, pre-trial procedures, and trial schedules.  If the case arrives in the FLS with pending motions, hearing dates will likely be set then for quick disposition.  Litigants can expect a clear, firm scheduling order to result from the initial conference.

Improved file and time management steps are emphasized by the FLS.  Inter-county assignments cause headaches with file maintenance and docketing, but not with the FLS.  Under the Standing Order, all filings are to be made directly to the FLS session, and manages docketing with the originating court electronically.  To the extent feasible, the FLS uses conference calls and videoconferencing when an in-court appearance is unnecessary.  E-mail for notifications, service, and filings also speeds up the process.

Reception for the FLS has been very positive.  Lawyers need not be concerned that a session judge may take offense at a request to transfer a case to the FLS.  To the contrary, an unscientific survey of judges and court staff shows that session judges generally welcome these applications.  A goal is to make it available state wide within the foreseeable future.

Robert J. O’Regan is a partner with Burns & Levinson, LLP.  He is past co-chair of the BBA Fiduciary Litigation Committee and past president of the Massachusetts Probate and Family Inn of Court.


Massachusetts Adopts “Red Flag” Law

Stevens

by Bethany Stevens

Heads Up

Massachusetts law has long provided two tools to suspend a person’s lawful access to firearms:  a firearms licensing authority could suspend a person’s license to carry or possess a firearm if it found the person was unsuitable, or a court could — indeed, is required to — suspend a firearms license and order the surrender of the person’s firearms after finding a substantial likelihood of an immediate danger of abuse of a household or family member pursuant to G.L. c. 209A.  Massachusetts has now added a third tool, modeled after “red flag” laws in other states, to allow seizure of the firearms of persons who present a risk to themselves or others.  As of August 17, 2018, the District Court and Boston Municipal Court may now issue an “extreme risk protection order” to compel a person to immediately surrender firearms and ammunition on the petition of a household member, family member or licensing authority without the need for a finding of abuse.  See G.L. c. 140, §§ 131R-131Z.

What is an Extreme Risk Protection Order?

An extreme risk protection order (sometimes referred to as an “ERPO”) immediately suspends a person’s license to carry or possess a firearm and directs the person to immediately surrender their firearms licenses, guns (including stun guns), and ammunition to the licensing authority in the municipality where the person resides.  An ERPO may issue only upon a finding that the person “poses a risk of bodily injury to self or others by being in possession of a [firearms license] or having in his control, ownership or possession [guns or ammunition].”  G.L. c. 140, § 131T(a). While the order is in effect, the respondent is disqualified from obtaining a firearms license and is prohibited from possessing a firearms license, gun or ammunition.  A violation of the order is a misdemeanor criminal offense.

Who Can Seek an Order?

The new law allows a household or family member, defined as those phrases are used in G.L. c. 209A, to file a petition with the court upon “belie[f] that a person holding a license to carry firearms or a firearm identification card may pose a risk of causing bodily injury to self or others.”  G.L. c. 140, § 131R.  A petition may also be filed by the licensing authority where the respondent resides (defined as “the chief of police or the board or officer having control of the police in a city or town, or persons authorized by them,” G.L. c. 140, § 121).  In some instances, the licensing authority where the respondent resides will not be the authority that actually issued the respondent’s firearms license(s) because a person could be licensed by the police department of the municipality in which the person works or because a person might move to a different municipality after licensing.  G.L. c. 140, §§ 129B(1), 129B(11),  and 131(d).

Individuals who are not family or household members may not petition a court for an ERPO, even though in appropriate instances they may seek a harassment protection order under G.L. c. 258E.  Chapter 258E does not authorize a harassment prevention order to include an order to surrender firearms.  J.C. v. J.H., 92 Mass. App. Ct. 224, 230 (2017).  As a result, if an individual who is not a member of a license-holder’s family or household believes that a license-holder poses a risk to themselves or others, the individual should seek appropriate relief by reporting the information to an eligible ERPO petitioner.

Procedure to Issue an Order

The new law bears many procedural similarities to G.L. c. 209A.  A petitioner who seeks an ERPO must file a petition signed under the pains and penalties of perjury.  If on review the judge “finds reasonable cause to conclude that the respondent poses a risk of bodily injury to self or others” by possessing a firearms license, guns or ammunition, the judge may issue an emergency or temporary extreme risk protection order without first giving notice to the respondent.  G.L. c. 140, § 131T(a).  An emergency order issued during court hours is valid for only 10 days.  Like an emergency order under c. 209A, an emergency ERPO issued after court hours by an on-call judge is valid only until the end of the next court day.  If a petitioner seeks to have such an “after hours” emergency order extended beyond the next court day, the petitioner must appear during court hours for a hearing at the appropriate court with jurisdiction over the city or town where the respondent lives.

Because an ERPO suspends a person’s lawful access to guns and ammunition, an ERPO will not issue when the person has no license to suspend. Rather than issuing an ERPO, the court will provide the information to police to take whatever action is warranted when they learn information related to the illegal possession of firearms. If in these circumstances the petitioner is a household or family member concerned about their own safety, they should consider seeking a c. 209A order.

For an ERPO to be extended up to one year, the court must hold a hearing within ten days of the filing of the petition with notice to the respondent at least seven days prior to the hearing. The respondent can waive this notice period.  If the respondent files an affidavit stating that guns are required in the performance of the respondent’s employment, the hearing must be held within two days of the petition being filed. At the hearing, the petitioner must establish by a preponderance of the evidence that the respondent poses a risk of bodily injury to self or others by possessing guns or ammunition. If the judge so finds, the judge must issue an order for up to one year.  Either party may move to modify, suspend or terminate an active order.  Appeals of ERPO proceedings may be taken to the Appeals Court just as c. 209A orders may be appealed.

Effect of an Order

Whenever a court issues an ERPO, the licensing authority and the criminal justice information service database (CJIS) must be notified.  This triggers suspension of any Massachusetts firearms license and disqualifies the respondent from obtaining a new firearms license in Massachusetts.  This is the same process that occurs when a c. 209A order issues:  CJIS and licensing authorities are notified of c. 209A orders as such orders generally require immediate suspension of a firearms license and surrender of guns and ammunition.  G.L. c. 209A, §§ 3B and 3C.

The new statute allowing courts to issue extreme risk protection orders does not replace a licensing authority’s ability to suspend a firearms license.  Therefore, under G.L. c. 140, § 129B (firearm identification cards) or § 131 (licenses to carry), the chief of police who issued the license or their designee may still suspend a person’s license and require surrender of guns and ammunition upon finding the licensee “unsuitable.” This determination by the licensing authority results in immediate suspension of the firearms license without the need for a court ruling.

Restoration of Firearms License

While issuing an extreme risk protection order is a process separate from the licensing authority’s determination of suitability, the two processes converge upon an ERPO’s expiration or termination.   After an ERPO is issued, a firearms license, guns, and ammunition may be returned to the respondent only after the licensing authority where the respondent resides determines that the respondent is suitable. A determination of unsuitability must be based either on reliable information that the person “has exhibited or engaged in behavior to suggest the [person] could potentially create a risk to public safety” or on “existing factors that suggest that the [person] could potentially create a risk to public safety.”  G.L. c. 140, § 129B(1½)(d) . If denied reinstatement, a respondent presumably could seek judicial review under existing license appeal procedures, although the new statute does not explicitly provide for such judicial review.

Reports on the New Law’s Use

By December 31, 2018, we will learn more about the utility of this new law.  The court must provide an annual statistical report on its use, including the number of petitions filed, petitions granted, and petitions that led to surrender of guns, as well as demographic information about respondents and petitioners.  In the meantime, information about extreme risk protection orders and the forms a petitioner is required to file can be found on the court’s website. 

Bethany Stevens is the Director of Legal Policy and Deputy General Counsel to the Administrative Office of the District Court, and is a member of the BBA’s Criminal Law Section Steering Committee. Previously, she served as the Deputy Chief of the Middlesex District Attorney’s Appeals Bureau where she litigated closed courtroom claims at the trial level as well as at the Appeals Court and Supreme Judicial Court.


Extensive Amendments to the Massachusetts Rules of Appellate Procedure Effective in 2019

StantonMalone

by Joseph Stanton & Patricia Campbell Malone

Heads Up

The Supreme Judicial Court has approved extensive amendments to the Massachusetts Rules of Appellate Procedure (“Rules”), which become effective on March 1, 2019.  This article summarizes by topic the most significant amendments.

Background.  The amendments are the product of a four-year study of the Rules conducted by the Appellate Rules Subcommittee (“Subcommittee”) of the Supreme Judicial Court Standing Advisory Committee on Civil and Appellate Procedure, in conjunction with the Standing Advisory Committee on the Rules of Criminal Procedure.  The Subcommittee included appellate judges, appellate and trial court clerks, and attorneys with expertise in civil and criminal appeals.

The Subcommittee reviewed the Rules and prepared amendments to:  facilitate the just and expeditious resolution of appeals; clarify and simplify filing and formatting requirements; eliminate arcane language and incorporate consistent style and terminology; integrate existing practices and procedures; and facilitate the implementation of paperless court processes. Valuable public comments were received from the Boston Bar Association and other organizations and attorneys.

Universal Amendments.  Global revisions to the Rules include:  use of gender-neutral references; removal of provisions rendered obsolete by technological developments and work processes; numbering and collapsing of lengthy freestanding paragraphs to facilitate ease of reference; consistency in the numbering of provisions; revising the Rules’ shorter filing deadlines (i.e., non-brief or notice of appeal) to be in increments of 7 days to increase the likelihood that the deadline falls on a business day; and changing all use of “opposition” to “response” to reflect that a nonmoving party may respond to the moving party’s request, but not necessarily oppose that request.

Time Period for Filing Notice of Appeal.  Amendments to Rule 4 clarify that if multiple post-judgment motions are filed, the time for filing a notice of appeal for all parties begins on the date when the lower court enters the order that disposes of the last remaining motion enumerated in the Rule, and that the filing of a motion under Mass. R. Civ. P. 60(a) to correct a clerical error does not toll the time period.

Assembly of the Record, Timing and Contents.  To prevent delay in completing assembly of the record, amendments to Rule 9(a) establish a 21-day deadline for the clerk of the lower court to complete assembly of the record.  The time period begins to run from the later of certain occurrences, including either the receipt of the entire transcript, approval of an agreed statement of the record, or a notice that the appellant does not intend to order a transcript.  In addition, amended Rule 9(e) identifies in a checklist format the items and information that the lower court clerk must include in the assembly package.

Transcripts.  Amendments to Rule 8 were adopted from recommendations made by the Trial Court Working Group on Assembly of the Record, convened by the Chief Justice of the Trial Court to coordinate with the Appellate Rules Subcommittee to modernize and streamline the transcript production processes.  Amended Rule 8 is simplified by focusing on an appellant’s duty to file with the clerk and serve on all parties within 14 days an order of all relevant proceedings to be transcribed, a statement certifying that no court proceedings are relevant, or a statement certifying that all relevant transcripts are already on file with the lower court.   Reference to service of designation (and counter-designation) of parts of the cassette to be transcribed was deleted and amended Rule 8 simply directs an appellee to, if necessary, order the transcript of any additional relevant proceedings within 14 days of the appellant’s order.  An Administrative Order of the Chief Justice of the Trial Court now governs technical details such as submission of the transcript order form (which depends on the type of proceeding and method by which it was recorded), payment, indigency, and delivery of the electronic transcript.

Docketing the Appeal.  In Rule 10, the time period for appellants and cross-appellants in civil cases to docket their appeal was increased from 10 to 14 days and a new provision was added to deem payment or request for waiver timely if mailed with a certificate attesting that the day of mailing was within 14 days of the filer’s receipt of the notice of assembly.  These changes are intended to provide appellants additional time to docket the appeal, reduce the need for motions to docket appeals late, and obviate the need for parties to physically travel to the courthouse if attempting to docket an appeal on the final day.

Word Count Limit and Proportionally Spaced Font Alternative to Page Limits.  One of the most significant amendments to the Rules appears in Rule 20(a)(2).  It allows, as does Fed. R. App. P. 32(a)(7), the option for filers to submit documents using a word-count limit and a proportionally spaced font (e.g., Times New Roman) as an alternative to the traditional page limit and monospaced font (e.g., Courier New) requirement.  This option is incorporated into each Rule that previously contained a page limit.  For example, an appellant or appellee filing a brief in a non-cross appeal could, instead of using the 50-page limit, use an 11,000-word limit in a proportionally spaced font.  When a proportionally spaced font is used, the font size shall be 14 or larger, all margins 1 inch or larger, and the Rule 16(k) certificate must state how compliance with the word limit was ascertained.  These amendments are intended to improve documents’ readability and to eliminate the considerable time parties sometimes spend using formatting devices solely to comply with the current page limits.  Notably, the specific word-count limits differ from the Federal Rules applicable to the various briefs and other filings because adopting the Federal word-count limits would lead to substantially longer filings than currently authorized by the traditional Massachusetts standards.  The Rules continue to permit a filer to seek leave to exceed the maximum word-count or page limit, upon a showing of extraordinary reasons.

Filing and Serving Documents.  Rule 1(c)’s definition of “[f]irst class mail” was expanded to “[f]irst class mail or its equivalent” to explicitly allow the common practice of using third-party commercial carriers to file documents.  For the same reason, Rule 13 was amended to allow electronic service (such as through eFileMA.com or e-mail) with the consent of the party being served.  The required contents of a certificate of service were modified to promote consistency with the appellate courts’ electronic-filing procedures.

“Inmate Mailbox Rule.”  The amendments incorporate in all civil and criminal appeals the so-called “inmate mailbox rule” to the filing of a notice of appeal (Rule 4) and all other documents (Rule 13) by self-represented parties confined in an institution.  These amendments are intended to incorporate the concerns highlighted by the Supreme Judicial Court in Commonwealth v. Hartsgrove, 407 Mass. 441, 445 (1990), as to the limitations of a person confined in an institution to effectuate the “mailing” of a document on a certain day.  Documents will be deemed filed on the date an inmate deposits the document in the institution’s internal mail system, and then the time period for any party to respond to an inmate’s filing runs from the date the filing is docketed by the appellate court.

Motions.  Although Rule 15(b) continues to allow an appellate court to act on motions for procedural orders without awaiting a response, Rule 15(a) was amended to encourage parties to state in their motion whether it is assented to, opposed, and, if opposed, whether the other party intends to file an opposition.  This is intended to encourage the parties to communicate about whether a response will be filed prior to the filing of a motion to avoid the unnecessary consumption of time, effort, and expense to both the parties and the appellate court.

Throughout the Rules, references to Rule 27 “Petitions for Rehearing” were changed to “Motion[s] for Reconsideration or Modification of Decision” to more appropriately describe such filings which rarely, if ever, seek an oral argument and rehearing of a case before the justices and instead typically request a reconsideration or modification of the decision.

Amended Rule 29(b) requires a motion for voluntary dismissal in a criminal case to be accompanied by an affidavit by the defendant-appellant or include an attestation by counsel stating that the defendant-appellant assents to the dismissal of an appeal with prejudice.  This new requirement codifies the appellate courts’ long-standing requirement for such supporting documentation.  It does not apply when the motion states that the appeal is moot.

Content of Briefs.  Rule 16(a) was reorganized to detail, in checklist format, the contents of an appellant’s brief.  The amended Rule explicitly states existing requirements that were not previously referenced in the Rules, such as the need for a corporate disclosure statement in accordance with S.J.C. Rule 1:21, and the decisional-law requirement that any request for an award of appellate attorney’s fees be made in the brief.  The amendments also create new requirements that a party identify the standard of review for each issue raised, and include record references in the statement of the case section.  Similar to Appeals Court Rule 1:28’s requirement that a brief’s addendum include copies of any cited Appeals Court unpublished decision, Rule 16 now requires a brief’s addendum to include a copy of any unpublished decision cited in the brief.  A summary of the argument is now required for briefs with argument sections exceeding 20 pages (previously 24 pages) or 4,500 words if the brief is produced in a proportionally spaced font.

Rule 16(b) incorporates the requirements of an appellant’s brief and applies them to an appellee’s brief, except as otherwise provided, and includes a new requirement that the appellee include an addendum just like an appellant, even if the materials included were already included in the appellant’s addendum.

New Rule 16(j) clarifies that a party may file only one brief in response to the service of multiple briefs, and may not file separate briefs in response to each brief.  Finally, new Rule 16(n) details the procedures for filing an amended brief, including that a motion showing good cause is required, and clarifies that unless otherwise ordered, the filing of an amended brief has no effect on any filing deadlines.

Record Appendices.  Rule 18 was reorganized to detail, in checklist format, the required contents of a record appendix.  The Rule also now cautions parties that the lower court does not transmit the entire record to the appellate court and that the failure to provide sufficient transcripts can result in waiver of issues.  These warnings are intended to remove sources of confusion that often befuddle attorneys and self-represented litigants.

Briefing in Cross Appeals.  Another significant amendment to the Rules concerns briefing in a cross appeal, delineated in Rule 20(a)(3).  Consistent with Fed. R. App. P. 28.1, the amended Rule recognizes that in an appellee/cross-appellant’s principal brief, the appellee must both respond to the arguments in the appellant’s brief and present the appellee’s arguments in the cross appeal, and that the appellant/cross-appellee’s reply brief must both respond to the arguments in the appellee’s principal brief in the cross appeal and reply to the appellee’s arguments in the appeal.  Accordingly, Rule 20(a)(3) enlarges the limit of the appellee/cross-appellant’s brief to 60 pages or 13,000 words, and the appellant/cross-appellee’s reply brief to 50 pages or 11,000 words.

Amicus Briefs.  Rule 17 now clarifies that a motion for leave to file is not required when an appellate court has solicited amicus briefs in the case.  It also features a uniform filing deadline for all amicus briefs of 21 days prior to oral argument, unless leave is given for later filing.  While making the formatting provisions of Rule 20 applicable to an amicus brief, the amendments provide that an amicus brief need only include certain enumerated content requirements of a party’s brief in Rule 16 (i.e., amicus briefs need not provide statements of the case, facts, or standard of review).  Consistent with Fed. R. App. P. 29 and Supreme Judicial Court precedent, Rule 17 now requires disclosure of certain information relating to an amicus curiae or its counsel’s relationship to a party or interest in the relevant legal issue or transaction.

Format of Filings.  Amendments to Rule 20 modify and clarify the format requirements for filings and are intended to promote consistency with the appellate courts’ electronic-filing procedures.  Importantly, the amended Rule states that page numbers shall appear in the margin and begin pagination with the cover as page 1, and pages thereafter numbered consecutively through the last page.  Any addendum should continue the pagination of the document itself without beginning again at page 1.  In cases involving multi-volume appendices, each volume shall be separately paginated.  Color covers remain a requirement for paper-filed briefs, but no color cover is required for any electronically-filed brief.

Number of Paper Copies of Brief and Record Appendix to be Filed.  Amendments to Rule 19 reduce the number of paper copies of a brief and record appendix filed in the Appeals Court from 7 to 4, and in the Supreme Judicial Court from 18 to 7.  Due to advances in the appellate courts’ paperless practices, fewer copies of each document are needed to process and review filings.  Notably, as of September 1, 2018, the Appeals Court Standing Order Concerning Electronic Filing requires all attorneys with cases in the Appeals Court to register in eFileMA.com and to e-file all briefs and appendices in non-impounded criminal and civil appeals, and encourages the e-filing of impounded documents in all cases.

E-Filing Costs Taxable in Civil Cases.  Amendments to Rule 26 include as taxable costs the fees incurred using the electronic-filing system, which include administrative fees and convenience fees, such as credit card convenience fees.

Distinguishing “Decision” from “Rescript.”  Rules 1, 23, 27, and 27.1 were amended to clarify the distinction between the appellate clerk’s release of a decision to the parties and the public, and the clerk’s issuance of the rescript to the lower court.  It is the release of the “decision” as defined in Rule 1(c) that commences the timeframe to file a motion for reconsideration or modification of decision (formerly known as a “petition for rehearing”) or an application for further appellate review.

Electronic Notice from Clerk.  Rule 31 was amended to provide that the clerk shall send notice to the electronic business address of an attorney that is registered with the Board of Bar Overseers, and may send paper notice by conventional mail.

Effective Date.  The amendments will become effective March 1, 2019 and govern procedures in appeals to an appellate court then pending and thereafter commenced.  In advance of the effective date, parties are invited by the appellate courts to immediately begin filing their appellate documents in compliance with the formatting and filing provisions of the amended Rules, on a voluntary basis.  This includes use of the new word count alternative to the page limit and the filing of a reduced number of copies of briefs and appendices in the Supreme Judicial Court.  However, amendments affecting time deadlines do not become effective until March 1, 2019 and until that date parties must continue to use the existing time deadlines.

Where to Find the Amended Rules.  The Rules in their proposed form and the Supreme Judicial Court’s approval may be viewed on the Judicial Branch’s website.

Joseph Stanton is Clerk of the Massachusetts Appeals Court. He serves on numerous Supreme Judicial Court and Trial Court committees, including as chair of the rules of appellate procedure subcommittee.

Patricia Campbell Malone is an Assistant Clerk at the Massachusetts Appeals Court. She served as a member of the rules of appellate procedure subcommittee.