Preventing, Reporting, and Responding to Sexual Violence on College Campus – Landmark New Legislation in Massachusetts

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  by Paul G. Lannon, Jr.

   Legal Analysis

The Massachusetts Campus Sexual Violence Act

On January 12, 2021, Governor Charles Baker signed the Campus Sexual Violence Act (CSVA), landmark legislation addressing sexual violence on all college and university campuses in the Commonwealth.  See G.L. c. 6, §§ 168D and 168E. The new law, which took effect on August 1, 2021, is the state’s version of Title IX of the Education Amendments of 1972 (“Title IX”). Title IX prohibits sex discrimination, including sexual assault and harassment, in programs and activities at higher education institutions receiving federal aid, and contains additional provisions that focus on preventing, reporting, and responding to sexual assaults and other forms of sexual violence. While the CSVA overlaps with various aspects of Title IX and other federal laws, it imposes further obligations discussed below.

The CSVA applies to public and independent institutions of higher education that are physically located in Massachusetts and have degree-granting authority. Institutions that are online-only, non-degree granting, or located only in other states are not affected. The Massachusetts Department of Higher Education (DHE) issued implementing regulations at 610 C.M.R. 14.00, which took effect on August 20, 2021.

The CSVA applies to “sexual misconduct,” defined broadly to encompass rape, sexual assault, and other forms of sexual violence. While courts have interpreted Title IX to prohibit discrimination based on sexual orientation, gender identity, or gender expression, the CSVA expressly prohibits misconduct based on those personal characteristics. Sexual misconduct for purposes of the CSVA also includes domestic violence, dating violence, and stalking – categories of misconduct and crime specified in the federal Violence Against Women Act, as amended.

What’s New

The CSVA and its implementing regulations impose new obligations on Massachusetts colleges and universities, most notably, to conduct a campus climate survey every four years, implement specific student and employee training programs, enter into a memorandum of understanding with local law enforcement, and submit an annual report to state authorities.

Periodic student surveys

Covered institutions will need to survey all students at least every four years regarding specified campus safety topics. The survey topics extend well beyond the established federal reporting requirements under the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act of 1990, 20 U.S.C. §1092(f) (Clery Act). Institutions will need to survey students not only about instances of sexual misconduct and the circumstances under which they occurred, but also about students’ awareness of institutional policies and procedures, the advice and guidance students received, demographic information, and “perceptions” of campus safety and “confidence” in the institution’s efforts at protection.

A diverse task force, authorized by the CSVA, will develop model questions and recommendations to provide institutions with direction and guidance on effective means for conducting the required surveys. The task force is expected to publish model survey questions and recommendations no later than January 1, 2022. Institutions may develop and use their own surveys, provided they are designed to obtain the data required by the CSVA, meet the quality standards established by the Commissioner of Higher Education, and include a certain subset of model questions. Summaries of survey results must be posted on the institution’s website. There is, as yet, no guidance on what actions, if any, institutions should or must take in response to survey results.

Student and employee training

Covered institutions must provide new students and employees with comprehensive training on sexual misconduct prevention, identification, reporting and response, within 45 days of their matriculation or employment. The training must cover applicable civil rights laws, the role of drugs and alcohol, reporting channels, anonymous methods of reporting, complaint resolution procedures and the range of sanctions, confidential resources, bystander intervention, and risk reduction. Anyone responsible for implementing any part of a sexual misconduct complaint process must also satisfy rigorous training or experience requirements in subject matters that include interviewing witnesses, consent, the impact of drugs and alcohol, the effects of trauma, sensitivity, disabilities, and due process.

One aspect of the required training for responsible officials is the inclusion of cultural competence. Officials must be trained on cultural competence to understand how sexual misconduct may impact people differently depending on their backgrounds.  G.L. c. 6, § 168E(n)(v). It is unclear what cultural competence training will or should encompass. Cultural competence is not defined in the CSVA or the regulations, nor is it part of the Title IX regulatory scheme.

MOU with local law enforcement

Covered institutions are now obligated to contact local law enforcement and attempt in good faith to adopt a memorandum of understanding (MOU) about their respective roles and responsibilities concerning incidents of sexual misconduct on and off campus. G.L. c. 6, § 168E(c); 610 C.M.R. 14.03. Institutions must contact each municipal or state law enforcement agency with jurisdiction on or around the campus. Exact boundaries are not defined, which suggests that institutions should be over inclusive when deciding which law enforcement agencies to contact. Institutions may enter into a single MOU with multiple agencies.

The regulations prescribe the content of each MOU, which “shall” contain primary points of contact, methods for notifying the district attorney’s office, protocols and standards for information sharing, delineation and description of respective jurisdictions including cross-jurisdictional and multijurisdictional responses, and the institution’s responsibilities and procedures under Title IX and other applicable laws. With respect to the last item, presumably institutions may simply refer to their published sexual misconduct prevention and complaint policies, but it is not clear from the regulations whether additional information is necessary.

The DHE will publish on its website whether institutions are in compliance with the MOU requirements. Compliance status will be updated at least annually. Institutions should notify the DHE if any published information is incorrect.

Annual Report

Most colleges and universities are already obligated under the Clery Act to publish a campus security report each October that includes data on crimes occurring on or adjacent to their properties with names and other personally identifiable information removed. 20 U.S.C. § 1092(f)(1). The CSVA adds to those reporting obligations. By December 1 of each year, covered institutions must submit to the DHE the number of sexual misconduct reports, reports that were investigated, students and employees found responsible and not responsible, and the disciplinary actions imposed. The DHE will prescribe the form and manner for submitting such data.

Law enforcement MOUs must be sent to the DHE along with the institution’s annual report.  Institutions are required to list all the law enforcement agencies with jurisdiction on or around their campuses and to certify that they have either entered into a legally compliant MOU with each agency or else have determined that an MOU is “infeasible” for that year. The DHE regulations do not specify who must provide the certification, nor the form or manner by which to submit the certification to the DHE. Further guidance from the DHE is expected prior to the initial December 1 deadline.

In determining whether an MOU is feasible in a given year, institutions may consider various factors, specifically including whether law enforcement refuses to cooperate or fails to respond in a timely manner to reasonable requests from the institution, and whether despite good faith efforts the parties cannot finalize terms that are compliant with the institution’s legal obligations.  Infeasibility determinations must be reported to the DHE with the annual report and must contain “a summary of and attestation to the institution’s good faith efforts” toward obtaining an MOU.  The regulations do not specify who should sign the attestation or what form it should take, but institutions are well advised to maintain detailed records of all efforts to secure an MOU and any responses from law enforcement agencies.

What We Have Seen Before

Not everything in the CSVA is new. Indeed, much of the act is duplicative of Title IX — covered institutions must adopt, implement, and publish accessible policies on sexual misconduct that include prevention measures, confidential and other support resources, and complaint resolution procedures. To avoid conflicts, the new state law requirements are to be interpreted “consistent with federal law and regulation” presumably Title IX, the Clery Act and other applicable laws.

Like Title IX, complaint resolution procedures under the CSVA must provide detailed written notice of the alleged misconduct, presume the respondent is not responsible, provide parties with equal access to evidence from the investigation, prohibit the parties from directly cross-examining the other, permit the parties to have advisors (who may be attorneys) present for any meetings or disciplinary proceedings, provide equal opportunities for appeal if appeals are afforded, and include a written outcome notice within seven days after the disciplinary process is completed. Noticeably absent from the CSVA is the controversial provision in the recently published Title IX regulations requiring live hearings to resolve complaints, nor does the CSVA prescribe a standard of evidence that must be applied, in contrast to the Title IX regulations which permit institutions to choose either the preponderance of the evidence standard or the clear and convincing evidence standard.

The CSVA policy and procedure requirements are comprehensive and should be scrutinized. Of particular note are the following provisions:

  • Policies must “comport with best practices and current professional standards,” which implies an obligation to monitor developments in this area from year to year.
  • Institutions are obligated to advise students about their options for medical or emergency support, assistance from crisis centers or other counseling services, interim protective measures, protection through law enforcement or the courts, as well as complaint resolution procedures.
  • Institutions must provide amnesty from disciplinary sanctions to students who report sexual misconduct, unless their report was not made in good faith or their own misconduct was “egregious” which includes jeopardizing the health and safety of others.
  • Institutions must designate at least one confidential resource provider, who is subject to specific training requirements and detailed confidentiality obligations.
  • Policies and procedures concerning sexual misconduct reporting and investigation must be emailed to all students and employees by August 20 each year. Before sending these emails, institutions should ensure with legal counsel that their policies and procedures comply with current state and federal requirements.

The CSVA also has more specific notice requirements than Title IX, particularly for websites.  Websites must include the sexual misconduct policies and procedures, the annual campus security report required by the Clery Act, timely warning and emergency notification information as required by the Clery Act, contact information for the Title IX Coordinator and confidential resource provider, medical and “rape kit” resources as well as transportation options, and contact information for a 24-hour hotline for sexual misconduct information.

What’s To Come

The CSVA contains no definitions of consent, affirmative consent, or revocation of consent; consequently, Massachusetts institutions retain flexibility to define those terms in their own sexual misconduct policies and procedures. Whether DHE regulations will attempt to define those terms is an open question.

Further guidance is expected from the DHE and other state agencies over the next several months regarding the form and manner for submitting MOUs, certifications, feasibility reports and annual reports. After initial submissions, institutions should also expect requests for additional information and documentation as compliance standards develop. Institutions are advised to check the DHE’s website regularly for updates.

Efforts at preventing and remedying sexual violence have had varying degrees of success on campuses nationwide. The CSVA is the first attempt by a state to address the problem through comprehensive legislation. The law imposes substantial new compliance obligations on colleges and universities in Massachusetts. Whether it will help or hinder institutional efforts remains to be seen and will depend in large part on how the law is interpreted and enforced by state agencies.

Paul G. Lannon, Jr. is a partner at Holland & Knight where he co-chairs the firm’s national education law practice.  He is the former co-chair of the BBA’s College and University Section and is the editor of the College and University Law Manual (MCLE 2021 edition).


Morse v. Ortiz-Vazquez: Preserving “the Opportunity to Meaningfully Present Claims and Defenses” in a Summary Process Action When the Tenant Does Not File a Timely Answer

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  by Ilana B. Gelfman

   Legal Analysis

In Morse v. Ortiz-Vazquez, 99 Mass. App. Ct. 474 (2021), the Massachusetts Appeals Court considered a case in which a tenant appeared for a summary process trial after failing to file a timely answer. Uniform Summary Process Rule 3 requires a tenant to file his or her answer “no later than the first Monday after the Monday entry day.” Yet the tenant, Jorge Ortiz-Vazquez, was pro se at the time his answer was due and did not meet the deadline.

The Appeals Court determined that the trial court should have permitted Mr. Ortiz-Vazquez to file a late answer and to raise affirmative defenses against eviction. The Appeals Court explained that to “correctly balance the legitimate interests of both parties,” a trial court must consider the “substantial prejudice to the tenant arising from the denial of his statutory right to present an affirmative defense.” Ortiz-Vazquez, 99 Mass. App. at 485. If the trial court had properly balanced the parties’ interests, it would have permitted Mr. Ortiz-Vazquez to raise all applicable defenses against eviction.

A Common Circumstance

Mr. Ortiz-Vazquez’s situation was far from exceptional. In summary process cases decided by the Housing Court in Fiscal Years 2019 and 2020, respectively, 91.3% and 91.5% of defendants appeared pro se. Housing Court Department, Fiscal Year 2019 Statistics, Commonwealth of Mass., https://www.mass.gov/doc/2019-housing-court-self-represented-represented-litigants-by-court-location/download; Housing Court Department, Fiscal Year 2020 Statistics, Commonwealth of Mass., https://www.mass.gov/doc/2020-housing-court-self-represented-represented-litigants-by-court-location/download. In general, “the vast majority of tenants in the Housing Court proceed without the benefit of counsel.” Adjartey v. Cent. Div. of Hous. Ct. Dep’t, 481 Mass. 830, 838 (2019).

This poses a serious challenge for the average tenant. Litigating pro se is extremely difficult—and especially so in summary process cases. Summary process cases move quickly. “[F]ewer than seven weeks might elapse between the time that the defendant is served with a notice to quit and the time that he or she is removed from his or her residence.” Id. at 837. Further, summary process cases are “complex.” Id. They are governed by a “web of applicable statutes and rules,” including the Uniform Summary Process Rules, the Massachusetts Rules of Civil Procedure, the summary process statute (G.L. c. 239), and other procedural and substantive laws. Id. at 836-37. “Deciding when to apply which of these rules—and how to resolve inconsistencies among them—is . . . a formidable challenge for an unrepresented litigant seeking to comply with fast-moving deadlines, especially when that litigant is also facing the stress of a potential eviction.” Id. at 837.

Under Uniform Summary Process Rule 3, a tenant’s answer is due before the first court date, when the tenant is least likely to have received any assistance (even limited advice) from an attorney. It is no surprise, then, that the vast majority of summary process defendants do not manage to file a timely answer. For instance, in March 2019 (the month Mr. Ortiz-Vazquez’s case was filed), there were 1,804 cases filed in the Housing Court Department in which the defendant did not default, and in 1,499 of those cases (83%), the defendant appeared without having filed a timely answer. Brief of Amicus Curiae City Life/Vida Urbana in Support of Defendant Appellant Jorge Ortiz-Vazquez and Requesting Reversal at 33-34, Morse v. Ortiz-Vazquez, 99 Mass. App. Ct. 474 (2021). Mr. Ortiz-Vazquez, then, was not at all unusual in missing the deadline. Tenants do so more often than not.   

Litigation at the Housing Court

When Mr. Ortiz-Vazquez appeared in court—only three days after the deadline for filing his answer had passed—he filed a motion requesting permission to file a late answer. Mr. Ortiz-Vazquez, a native Spanish speaker, explained that he had not filed a timely answer because he “did not have any help due to [his] langu[a]ge problems,” but that he wished to raise an eviction defense based on ongoing mold and mildew issues in his apartment. Ortiz-Vazquez, 99 Mass. App. Ct. at 476. The Housing Court denied the motion. Id. at 476-77.

The Housing Court’s reasoning was rooted in an earlier eviction action brought against Mr. Ortiz-Vazquez by his landlord. In that earlier case, Mr. Ortiz-Vazquez had failed to file a timely answer, and the Housing Court had granted him leave to file his answer late. Id. at 475. He had then prevailed after raising a defense based on the mold and mildew in his apartment. Id.

Based on that prior case, the Housing Court believed that Mr. Ortiz-Vazquez should have known to file his answer by the deadline when his landlord brought a second summary process action. Id. at 476-77. The Housing Court denied Mr. Ortiz-Vazquez’s motion to file a late answer. Id. at 476. And the Housing Court went further, ruling at trial that the absence of an answer meant that Mr. Ortiz-Vazquez “was precluded from asserting affirmative defenses.” Id. at 478. The Housing Court “said that the tenant was free to pursue his conditions-based claims in an independent action,” but that he could not pursue them as a defense to the pending summary process action. Id. at 477.

In so ruling, the Housing Court denied Mr. Ortiz-Vazquez an important defense to eviction—and precluded him from utilizing a crucial tool for ensuring compliance with the State Sanitary Code. In 1965 the Legislature enacted G.L. c. 239, § 8A, which “grants the tenant the right to withhold rent in order to aid effective enforcement of State Sanitary Code regulations.” Boston Hous. Auth. v. Hemingway, 363 Mass. 184, 191-93 (1973). After early efforts to vest enforcement of the State Sanitary Code solely in public agencies proved ineffective due to lack of resources, “[t]he statute’s authorization of rent withholding ‘was [intended] to provide a tenant with [a] means of enforcing the state sanitary code or local health regulations, but without the necessity for a timid tenant to initiate court proceedings.’” Id. at 193-94 (quoting 52 Mass. L.Q. 205, 228). Under the statute, a tenant like Mr. Ortiz-Vazquez can withhold rent due to bad conditions and then raise a conditions-based counterclaim and defense to any resulting eviction for nonpayment of rent. The counterclaim and defense reflect “the public policy of Massachusetts,” which “strongly favors the safety and habitability of homes.” Trustees of Cambridge Point Condo. Trust v. Cambridge Point, LLC, 478 Mass. 697, 707 (2018). 

By preventing Mr. Ortiz-Vazquez from raising affirmative defenses, the Housing Court effectively denied him the right to withhold rent and defend himself based on bad conditions, as he had done in the prior eviction action (based on the same mold and mildew that he stated still plagued his apartment). The Housing Court also precluded him from raising any other applicable affirmative defenses, from retaliation to breach of the warranty of habitability to unlawful discrimination. Mr. Ortiz-Vazquez was unable to defend himself at trial, and the Housing Court entered judgment in favor of the landlord. Ortiz-Vazquez, 99 Mass. App. Ct. at 478.

 Vacatur by the Appeals Court

The Massachusetts Appeals Court vacated the judgment against Mr. Ortiz-Vazquez. Id. at 486. In doing so, the Appeals Court provided guidance to tenants, landlords, and trial courts alike.

The Appeals Court rejected the test that the Housing Court applied to deny Mr. Ortiz-Vazquez’s motion: “that the tenant knew or should have known about the need to file a timely answer.” Id. at 484. The Appeals Court agreed that this was “an appropriate consideration,” but nonetheless held that the Housing Court had abused its discretion because it had failed to “balance[] the procedural unfairness to the landlord against the substantial prejudice to the tenant arising from the denial of his statutory right to present an affirmative defense.” Id. at 484-85. Properly balanced, “the prejudice to the tenant far outweighed any inconvenience to the landlord.” Id. at 485. The prejudice to the landlord if the Housing Court had granted the tenant’s motion would have been minimal. Id. By contrast, the denial significantly prejudiced the tenant, and “[p]rohibiting the tenant from asserting affirmative defenses to eviction and to the landlord’s claim for back rent . . . [wa]s inconsistent with the legislative intent behind the statutory scheme and public policy.” Id. at 482.

The Appeals Court also considered and rejected the landlord’s contention that “defenses [that] are not properly raised pretrial” in an answer “must be waived at the trial if objected to by landlords.” Id. at 485 n.25. The Appeals Court explained that Uniform Summary Process Rule 5, which governs counterclaims, “states that the consequence of failing to file a counterclaim with the answer constitutes waiver ‘unless the court shall otherwise order on motion for cause shown.’” Id. at 481 (quoting Uniform Summary Process Rule 5). By contrast, “Rule 3, which governs answers, is silent as to the consequence of the failure to file a timely answer.” Id. at 480-81. The Appeals Court reasoned that “[b]ecause the drafters set forth in the rules a consequence for the failure to assert a counterclaim, but not a consequence for the failure to file an answer, it follows that the right to assert affirmative defenses is not waived when an answer is not filed.” Id. at 481.

The logic of the Uniform Summary Process Rules reflects the reality of litigation in Housing Court. “Residential tenants facing eviction are rarely sophisticated, knowledgeable, or prepared to navigate the legal system. They view an eviction, where they are unrepresented, as an opportunity to show up in court and simply tell the judge their story.” Id. at 485 n.25 (quoting G. Warshaw, Massachusetts Landlord-Tenant Law § 8:10 (Supp. 2020)). Thus, “the doctrine of waiver is disfavored in the Housing Court.” Id. at 485 n.25.

Open Questions

The reasoning in Ortiz-Vazquez will apply in most summary process cases where a tenant fails to file a timely answer. The prejudice to the tenant arising from the preclusion of his or her defenses will almost always outweigh any inconvenience to the landlord.

That said, the Appeals Court did not decide if “[t]here may be circumstances where a judge may justifiably deny the tenant’s motion to file a late answer and bar the tenant from raising affirmative defenses to eviction (such as when the judge permits the tenant to file a late answer and he fails to do so, when there is an egregious delay in filing an answer, or when the affirmative defenses raised by the tenant amount to unfair surprise).” Id. at 482. Mr. Ortiz-Vazquez’s case was ordinary, and the Appeals Court did not reach whether the result might be different in extraordinary circumstances.

In such circumstances, one possible rule that might control is Uniform Summary Process Rule 10, which provides: “If the defendant appears but has failed to file a timely answer, no default shall enter.” Mr. Ortiz-Vazquez argued that barring affirmative defenses amounts to a prohibited “default,” and the Appeals Court gave some credence to the argument by acknowledging that “[t]he prohibition on defaults in the rule and the concomitant right to trial on the merits—without any qualifying language—demonstrates an intent to allow tenants to defend evictions on any available basis.” Ortiz-Vazquez, 99 Mass. App. Ct. at 481. Ultimately, however, the Appeals Court declined to “address the tenant’s claim that the [Housing Court] defaulted him in violation of Rule 10(a) of the Uniform Rules of Summary Process.” Id. at 486 n.27. In the future, a court might consider whether barring affirmative defenses amounts to a default—and whether Rule 10 prohibits such a bar even in an extraordinary case.

In an extraordinary case, a court might also reconsider the landlord’s argument regarding waiver. Although “waiver is disfavored in the Housing Court,” id. at 485 n.25, the doctrine might apply where a tenant has done something more than failing to file a timely answer when he or she had reason to know of the deadline. A court might also consider whether, in an exceptional case, striking an affirmative defense would be appropriate as a sanction. In addition, if it is ever appropriate to bar an affirmative defense, then courts might examine whether all defenses are treated equally or whether certain defenses—such as a domestic violence defense under the Violence Against Women Act or a reasonable accommodation claim under anti-discrimination statutes—might be raised as a matter of right, regardless of whether the circumstances would warrant barring other defenses. 

Conclusion

“[P]residing over cases involving pro se litigants can be challenging, not least because ‘[w]hile judges must apply the law without regard to a litigant’s status as a self-represented party, our courts have recognized that self-represented litigants must be provided the opportunity to meaningfully present claims and defenses.’” Id. at 479 (quoting I.S.H. v. M.D.B., 83 Mass App. Ct. 553, 560-61 (2013)). This challenge arises again and again in summary process actions, where the rules are complex, the litigation is fast-paced, and the majority of defendants proceed pro se. In Ortiz-Vazquez, the Appeals Court determined that by missing the deadline for filing an answer, a tenant does not thereby relinquish the right to raise his or her defenses. Practitioners will be watching carefully to see if this decision is a harbinger of a broader trend of case law ensuring that tenants have the “opportunity to show up in court and simply tell the judge their story.” Id. at 485 n.25 (quoting G. Warshaw, Massachusetts Landlord-Tenant Law § 8:10 (Supp. 2020)).

Ilana B. Gelfman is a Senior Attorney at Greater Boston Legal Services, where she focuses on housing issues and appellate litigation. Prior to working at GBLS, Ilana was a law firm partner, a federal judicial clerk, and a legal services attorney.


We Have To Tell Them What?: The New Corporate Transparency Act and Forming Business Entities In Massachusetts

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Legal Analysis

The details and requirements of business entity formation have traditionally been the sole province of state law.  Most states, like Massachusetts, maintain corporate annual report filing requirements that involve the public disclosure of corporate officers and directors, and some impose similar requirements for LLCs or other business entities.  Those requirements focus on active managers of the entities, not information about the beneficial ownership of entities formed under their laws.  However, the recently-enacted federal Corporate Transparency Act (CTA) will fundamentally change entity disclosure.[1]

 By January 1, 2022, the Treasury Department will be promulgating regulations that will require every state filing creating a new business entity to be accompanied by a simultaneous transmission into a new federal database of the full name, street address, and an identification number of certain beneficial owners and of the “applicant” who forms the entity, who may be the attorney who handles the filing. Existing entities will have longer to comply, but will eventually be subject to similar disclosure. 

I.  Scope of the CTA

A.  What Disclosure Does the CTA Require?

For each “beneficial owner” and “applicant” of a “reporting company,” a filing must be made to Treasury’s Financial Crimes Enforcement Network (“FinCEN”) that includes:

  • Each person’s full legal name, date of birth, and current residential or street address; and
  • Either (a) the identifying number from an acceptable identification document (i.e., valid passport, driver’s license, or state, local or tribal identification document), or (b) a FinCEN identifier assigned to the person via a request from the person to FinCEN.

The CTA requires additional filings within one year of any change in the information included in the initial filing. This updating obligation applies not only to the identity of the beneficial owners, but also to changes in their address and even new numbers assigned to their licenses, ID cards, or passports upon renewal. 

B.  Who Will Have Access to the FinCEN Database?

The CTA limits access to the personal information in the database to:

  • Any federal agency engaged in national security, intelligence, or law enforcement activity.
  • State, local, and tribal law enforcement agencies if a court has authorized seeking the information in a criminal or civil investigation.
  • Federal regulatory agencies for the purposes of their supervision.
  • Foreign law enforcement agencies, prosecutors, or judges, upon a request by a federal agency on their behalf.
  • A financial institution that has been authorized to make the request by the reporting company, for customer due diligence purposes.

The blanket “law enforcement category” includes immigration enforcement.  This concern may be particularly relevant given the number of students, particularly in the Boston area, who engage in startup activity while studying in the United States.  The disclosure to FinCEN that a student whose visa terms do not permit work[2] is a significant beneficial owner of an entity may create a presumption that customs and immigration officials could use to exclude a student from returning after travel outside the U.S. or to revoke the visa and expel the student from the country.

C.  What Companies Are Covered by the CTA?  

The CTA requires filings from all non-exempt corporations and LLCs, and any other “similar entity” that is either: (i) created by filing a  document with a state or tribal filing agency, or (ii) formed in another country but registers to do business by filing a document with a state or tribe.  The phrase “created by the filing of a document” means that an entity that exists irrespective of the making of a state filing should not be a CTA “reporting company.”  This means that several entity types may be CTA-exempt:

General Partnerships and LLPs.  General partnerships are outside the CTA because they exist irrespective of a filing.  Because an LLP is a general partnership that exists as an entity before it registers as an LLP,[3] an LLP should also be deemed outside the coverage of the CTA.[4]

Massachusetts Business Trusts. These trusts should be outside the CTA, while Delaware statutory trusts are likely to be deemed covered by the CTA.  Massachusetts has long considered the state and local filings to be made by business trusts as administrative requirements, and not conditions of creation or existence.[5]  By comparison, the filing itself creates a Delaware business trust.[6]

Entities Resulting from by Statutory Conversion. Most states have inter-entity conversion statutes that allow an entity to convert from one legal form to another.  Such provisions typically make clear that the post-conversion entity is the same entity that existed before the conversion, just in a different legal form.

Entities Formed in Foreign Jurisdictions but Qualified or Registered to Do Business. Foreign entities that register to do business in a state are required to make CTA filings.  However, foreign entities that neglect or ignore state registration or qualification requirements are not included within the CTA, creating a gap in coverage.

The CTA also contains a lengthy list of businesses exempt from its coverage, but only a few of these exemptions are likely to arise in typical legal practices:

  • Public companies with securities registered under the Securities Act of 1934,
  • Nonprofits and other organizations under IRC § 501(c),
  • Certain regulated businesses,
  • Accounting firms,
  • Certain dormant companies, and
  • Any company employing more than 20 employees in the US on a full-time basis, which filed a prior year federal tax return showing more than $5 million in gross receipts or sales, and which operates at a physical location in the U.S.

The last exemption is interesting for several reasons.  First, a new entity could never use the exemption, because it will become available only in the year after a year in which the requisite revenue or sales were shown in a tax return.  Second, the statute does not define what constitutes a physical office.  Third, until better defined by Treasury, the 20-employee requirement remains unclear. What will constitute a full-time basis?  Can multiple part-time employees comprise an FTE?  Will members of an LLC, who for tax purposes are not considered “employees,” be included in the count?  Can persons treated as “independent contractors” be counted? When in the year will the number of employees be measured?  Although the Advanced Notice of Proposed Rulemaking issued by FinCEN in April 2021 did not address these issues, one would expect them to be clarified by the forthcoming regulations themselves.

D.  Who is a “Beneficial Owner”?

The CTA’s definition of a “beneficial owner” is simple but also inadequate. An entity’s beneficial owners include every individual who “owns or controls” at least 25 percent of the entity’s ownership interests, or who exercises “substantial control” over the entity.

The CTA neither defines what constitutes “owning or controlling” ownership interests[7] nor distinguishes among types of ownership interests with differing control and economic attributes.  For some purposes under the securities laws, beneficial ownership has been defined as voting power,[8] and a similar test based on aggregate affirmative voting rights would make sense for the CTA.

Will “substantial control” be defined by reference to the ability to cause the entity to take action, or will veto or blocking rights also be deemed to furnish control? Will persons serving as officers, directors and managers be “beneficial owners” because they “control” even if they own no equity? Massachusetts attorneys representing clients that are the beneficiaries of these kinds of “control” mechanisms must tread carefully to ensure that their clients do not unintentionally become beneficial owners.

E.  Who is an “Applicant”?

Except in the provision that defines the term, the word “applicant” only appears twice more in the CTA, most importantly in the provision that specifies that the same information that must be filed about beneficial owners must also be filed about the applicant. There is no updating requirement for that information, and indeed, the personal information about the applicant is not even subject to the disclosure limitations and penalties of the CTA.

Will attorneys representing clients forming entities be considered applicants whose personal information must be submitted to FinCEN? The answer may depend on what it means to be an individual who “files an application to form a corporation, LLC, or other similar entity.” An attorney (or law firm staff member) who physically or electronically tenders the document for filing would also seem to be one who has “filed an application,” even if that filing is on behalf of another. 

Removing the attorney from the direct action of filing, as by engaging a service company on the client’s behalf to handle the filing, or by delegating electronic filing responsibilities to the client, should suffice to prevent the attorney from being considered someone who “filed.”   

F.  Who is Responsible for Making CTA Filings?

The initial filing obligation for post-effective date formations is imposed on the company itself, and although the filed information must include personal information about the applicant (who, as observed above, might be the entity’s attorney), the statute itself does not require the applicant to make the filing. For preexisting entities, and changes in beneficial ownership, the reporting company also has the filing obligation.

Failure to comply with the CTA’s reporting requirements may lead to both civil and criminal liability. A “willful” failure to report complete or updated beneficial ownership information in a timely way, or a willful provision or attempt to provide false information, may result in a civil penalty of $500 per day of violation, as well as a criminal fine of $10,000 and imprisonment for up to two years. 

 II.   Practice Implications

A.   Should Attorneys Permit Themselves to Be “Applicants”?

Treasury regulations may better define “applicant” to clarify whether it includes anyone other than the person who actually signs the filing or delivers the filing to the state filing officer.  Any effort by Treasury to impose “applicant” status on attorneys will surely face a legal challenge.   Given the risk of liability and other penalties associated with CTA filings, and the ease of offloading the filing responsibility to others, attorneys should consider alternatives to what may have been their prior business entity formation practices.

Currently, the most common practice for attorneys is for the attorney (or a non-attorney colleague) to sign an initial corporate or LLC filing as the incorporator, organizer or authorized person.[9]  For a Massachusetts entity, this process may happen entirely online, without direct client involvement. For non-Massachusetts entities, even where formation is handled by the Massachusetts attorney or firm, the need for a registered agent in the other jurisdiction has necessitated the use of corporate service companies, some of which have national practices and others of which are based in and primarily serve Delaware.

The advent of the CTA may change these filing practices in at least two ways.  First, attorneys will be much less sanguine about simply signing the initial filing document, and may request that a client representative do so instead. First, for Massachusetts companies, having a client representative (a) sign the formation document, if the representative is willing to be in the public record, and (b) handle the filing on the Secretary of the Commonwealth’s website with step-by-step instructions from counsel, may eliminate the risk that the attorney is deemed a CTA applicant.  For the client, any concern about public disclosure has less relevance for Massachusetts LLCs and corporations. The LLC’s filing must already name the managers or an authorized member, one of whom could be the signatory. Massachusetts corporations must file an annual report providing the names and addresses of directors and officers, and so while disclosure does not occur at filing, it does happen within the ensuing year.

Second, for companies formed in Delaware and other jurisdictions, corporate service companies may step in to either fill two roles in the filing process: (1) replacing the attorney (or her employee) as the person who effects the filing, or (2) also signing the filing document itself as incorporator, organizer or authorized person. This may result in more substantial service fees and obligations on the client’s part to execute documents to protect the service company and its employee handling the filing from the CTA risks associated with incomplete or false information.

B.   Due Diligence and Legal Opinion Questions

The mechanics of the FinCEN beneficial owner database will become known once the Treasury regulations are finalized and the reporting scheme launches, but the non-public nature of the filings means that it will not be possible for the public to use the database to confirm the CTA compliance status of a particular entity. For this reason, in transactions involving covered entities, it may fall to the legal profession to conduct due diligence regarding CTA compliance, to maintain records of prior filings made as “applicants” or otherwise on behalf of clients, and to advise clients making their own initial or ongoing ownership change filings to maintain sufficient records to evidence up-to-date compliance.

Transactions involving representations by covered business entities will likely include new representations, covenants and closing conditions related to the CTA compliance status of those companies. Lawyers on both sides of transactions should be expected to include proof of compliance in due diligence checklists and pre-transaction “cleanup” projects.

Whether CTA compliance status should also be a subject of closing legal opinions is a subject for future consideration by both practitioners and the bar-related organizations that attempt to set the standard for legal opinion practice. Arguably, CTA compliance will be as relevant in a closing opinion as presently expected or demanded opinions regarding existence, good standing, or even foreign qualification, subjects that are addressed in the most commonly referenced opinion forms.

Opinion-issuers may ultimately resist CTA-related opinions, but as practice evolves, attorneys should anticipate that they may be asked to serve another gatekeeper role. Even if they avoid serving as “applicants,” counsel may be asked to opine, even if qualified by client fact certificates or knowledge, as to the existence and accuracy of required CTA filings.

C.  Amending and Adapting Document Forms

Once an entity is formed, whose duty will it be to maintain the ongoing accuracy of the company’s FinCEN information? For entities existing before the Treasury regulations become effective, who will have the duty to make the initial filing? What responsibility will a person nominally charged with making the filings have if through omissions or misinformation, the CTA requirements are not met, or the filings contain inaccurate information? The forthcoming regulations may address some of these concerns, but interpretive gaps will likely remain.

Each of these questions leads to the conclusion that the responsibility for filing, and for accuracy, will need to be allocated among an entity’s beneficial owners and those (if not the owners themselves) making the filings. An officer, manager or general partner charged with transmitting a filing to FinCEN should likely indemnify the entity against a false filing, and in turn be indemnified against the consequences of false information provided by others. The governing documents of the company should establish responsibility for making CTA filings, and obligate beneficial owners to provide the necessary information on a timely basis.

This likely need for changes to a substantial library of business entity forms also raises the issue of how best to handle entities formed before the effective date of the CTA regulations. All attorneys who have been involved previously in forming entities for their clients will need to consider not only how to communicate and assist current clients, but also whether and how to reach out to former clients, who may have received business-entity services as one-off or since-ended engagements.[10] In-house counsel will need to take on, or delegate to in-house or outside counsel colleagues, responsibility for CTA filings for each entity, however insignificant, that appears in the corporate family tree.

Conclusion

The adoption of final Treasury regulations may clarify some ambiguities, and may even close potential loopholes that would otherwise allow some business entities to evade the CTA’s dragnet.  Those changes, however, will not allow Massachusetts practitioners to avoid the substantial professional responsibility, structuring and practical issues created by this new law, which will change the way we have approached business entity formation for many decades.

APPENDIX

Existing Massachusetts Filing Requirements[11]

Entity Type

Formed by Filing?

Filing Information Required

Annual Report Information Required

 

Corporations

Yes.  Ch. 156D, § 2.01.

 

Name and address of each incorporator (only one required). Ch. 156D, § 2.02(a)(3).

Names and business addresses of every director as well as of the president, treasurer and secretary, and of any CEO and CFO, if different.  Ch. 156D, § 16.22(a)(4).

 

LLCs

Yes.  Ch. 156C, § 12(b).

Name and address of every manager if LLC has managers when formed, plus name and address of any other person authorized to execute and file documents with the Secretary of the Commonwealth (including the person signing the filing if there are no managers).  Ch. 156C, §§ 12(a)(5), 12(a)(6).

 

Same information is required in an annual report, which effectively imposes an annual updating requirement.  Ch. 156C, §§ 12(c).

 

LPs

Yes.  Ch. 109, § 8(b).

 

Name and business address of every general partner. Ch. 109, § 8(a)(4).

Updated general partner information must be contained in an annual report that became a required filing in 2008.  Ch. 109, § 63.

LLPs

No.  An LLP is a general partnership that has opted into limited liability partnership status, and so the filing of the documents needed to make the partnership an LLP do not actually constitute a filing that creates the entity.

 

For an LLP that is not a professional LLP, the registration filing need not include any general partner information other than the name of the general partner signing the registration form.  Ch. 108A, § 45(2).

Annual report requirement requires no partner identifying information. Ch. 108A, § 45(2).

 

Professional LLPs

No.  Same as LLP.

Must list the name and business address of every general partner rendering the professional service in Massachusetts in the LLP registration filing.  Ch. 108A, § 45(7).

 

Same information is required in an annual report, which effectively imposes an annual updating requirement.  Ch. 108A, § 45(7).

 

Business Trusts

No.  Required filings are not linked to the trust’s creation or continued existence; rather, the Massachusetts trust statute simply recognizes the existence of the trust and imposes administrative requirements, such as the filing requirement.[12]

 

Must file a copy of its instrument or declaration of trust with the clerk of every city and town where it has a usual place of business, and with the Secretary of the Commonwealth.  Ch. 182, § 2.  Presumably, that document will, at minimum, name the trustees. 

No annual report requirement.

[1] Pub. L. 116-283 (Jan. 1, 2021) tit. LXIV, now codified primarily at 31 U.S.C. § 5336.

[2] See https://www.uscis.gov/working-in-the-united-states/students-and-exchange-visitors/students-and-employment (last accessed Sept. 19, 2021).

[3] See Appendix.

[4] See Del. Code tit. 6, § 15-201(b); Mass. Gen. L. c. 108A, §45.

[5] See Appendix. 

[6] Del. Code tit. 12, § 3810(a)(2). 

[7] Ownership or control cannot be through bearer interests, which are prohibited by the CTA.  See § 5336(f).

[8] Exchange Act Rule 13d-3, 17 C.F.R. § 240.13d-3.

[9] By definition, unless a general partner, the attorney could not sign limited partnership certificates of LLP registration forms, and unless a trustee, could not be the signer of a trust instrument.

[10] The CTA ties some state and tribal funding to periodic notifications by filing agencies of reporting company requirements under the CTA. See § 5336(e)(2)(A). 

[11] All statutory references are to Massachusetts General Laws.

[12] See Letter Ruling 91-2, Mass. Dep’t of Rev. (Jul. 1, 1991).

Professor James Wheaton is Clinical Associate Professor and Director of the Startup Law Clinic at Boston University School of Law, Research Director of the Uniform Laws Commission/ABA Joint Editorial Board for the Uniform Unincorporated Organizations Acts, and a former Chair of the ABA Section of Business Law LLCs, Partnerships and Unincorporated Entities Committee.  The views expressed in this article are solely those of Professor Wheaton and Mr. Reynozo, and are not made on behalf of any of Boston University, the ABA, or the Uniform Laws Commission.

Gustavo De la Cruz Reynozo is a third-year law student at Boston University School of Law and a former staff editor of the Journal of Science and Technology Law.


Careful Scrutiny: The SJC and Mandatory Sentencing Laws

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by Jared B. Cohen

Legal Analysis 

The Supreme Judicial Court has long grappled with mandatory sentencing laws, expressing considerable skepticism and concern about their efficacy and fairness. Statutes that compel a fixed or minimum sentence for certain crimes shift power and discretion from judges to prosecutors. They often prevent courts from making individualized sentencing decisions tailored to the particular crime and defendant. Moreover, mounting empirical evidence shows that such laws disproportionately impact racial minorities.  

In recent years, statutes containing mandatory sentencing language have troubled the SJC and elicited a series of critical opinions. From the sharp skepticism expressed in Commonwealth v. Laltaprasad, 475 Mass. 692 (2016), through its recent decision in Commonwealth v. Montarvo, 486 Mass. 535 (2020), which construed the controversial habitual criminal offender (or “three-strikes”) law, G. L. c. 279, § 25, to authorize a sentence of probation, the SJC has subjected these statutes to increasingly rigorous scrutiny. Absent a legislative overhaul to rewrite or reform the sentencing statutes, the SJC’s skeptical and exacting review of many mandatory sentencing laws will likely remain a feature of the criminal legal landscape.

Mandatory Sentencing: Impact and Outlook

For most crimes, judges have wide discretion to impose any sentence up to the statutory maximum penalty. The facts and circumstances of each case and defendant are distinct. Part of a judge’s role under this ordinary sentencing structure is to consider the nuanced variations of each case to fashion a fair and just punishment that is effective but not harsher than necessary to achieve the legitimate purposes of sentencing.[1]  

By contrast, some statutory offenses mandate a fixed or minimum sentence. These mandatory provisions may be triggered by the crime,[2] the defendant’s criminal history,[3] or the way the offense was committed.[4] While substantially removing discretion from judges, statutes that carry mandatory sentences transfer discretion, power, and leverage to prosecutors, who can offer charge concessions during plea negotiations. Defendants are frequently willing to plead guilty and accept some period of incarceration in exchange for the prosecutor’s dismissal of a charge carrying a longer mandatory minimum sentence.          

Mandatory minimum sentences also disproportionately affect Black and Brown defendants. The September 2020 Harvard Law School study commissioned by the late Chief Justice Ralph Gants[5] found that Massachusetts mandatory sentencing laws disproportionately affect non-white defendants, leading them to face longer periods of incarceration than white defendants.[6] Based on data from 2014 to 2016, the Harvard study concluded that the racial disparity in sentencing in Massachusetts is largely explained by the racial disparity in the severity of the initial charges that defendants face; for similar conduct, non-white defendants are more likely than white defendants to be charged with offenses carrying mandatory minimum sentences.[7] The study also cited numerous reports showing racial disparities in prosecutorial decisions to seek mandatory sentencing enhancements under “habitual offender” (or “three strike”) laws that have been adopted in many states.[8] 

The Harvard study supports concerns that the SJC has raised with increasing frequency over the past few years. In Commonwealth v. Laltaprasad, 475 Mass. 692, 693 (2016), for example, the SJC held that trial judges have no lawful discretion to depart downward from minimum mandatory sentences set by statute. However, in the unanimous opinion written by Justice Margot Botsford, the Court observed that

[t]he efficacy, or lack of efficacy, of mandatory minimum sentences, particularly in drug crimes, is the subject of substantial public debate. But apart from the question of efficacy in terms of the purposes to be served by criminal sentences, data concerning convictions for drug offenses in Massachusetts raise a serious concern about the disparate impact of mandatory minimum sentences on defendants who are part of racial or ethnic minority groups.

Id. at 702. Laltaprasad suggested that “[i]t may be appropriate for the Legislature to consider anew, guided by the work of the [sentencing commission], the issue of authorizing sentencing judges to depart from mandatory minimum sentences in relation to certain types of drug offenses in appropriate circumstances.” Id. at 703. 

Legislative action soon followed. In its landmark 2018 criminal justice reform law, the Legislature eliminated some mandatory minimum sentences for lower-level drug offenses, but left many others in place.[9] Later in 2018, Chief Justice Gants, who was joined by Justices Barbara Lenk and Kimberly Budd, suggested in a concurring opinion that the recently-enacted criminal justice reform legislation had only “begun the process of revisiting the wisdom and fairness of mandatory minimum sentences for certain offenses,” and encouraged the Legislature to continue examining “the wisdom and fairness of other mandatory minimum sentences (including the length of those mandatory minimum sentences).” Commonwealth v. Baez, 480 Mass. 328, 332-33 (2018) (Gants, C.J., concurring) (emphasis in original).[10] 

Confusing Cases, Confusing Law

Against this backdrop, in recent years the SJC has wrestled with statutes that seemingly require a mandatory sentence, but which conflict internally or deviate from how similar language is used and understood in other statutes.

In Commonwealth v. Rodriguez, 482 Mass. 366 (2019), the Court addressed G. L. c. 269, § 10(m). Section 10(m) states that a person who unlawfully possesses a high-capacity firearm or feeding device “shall be punished by imprisonment in a state prison for not less than two and one-half years nor more than ten years.” But the statute also provides that anyone holding a valid firearm ID card “shall not be subject to any mandatory minimum sentence imposed by this paragraph,” and later states that “[t]he sentence imposed upon such person shall not be reduced to less than one year.” Id. Unable to determine conclusively to whom this last clause was intended to apply, the Court held that the trial court lawfully sentenced the defendant to not less than one and not more than two-and-a-half years, rejecting the prosecutor’s argument that the two-and-a-half-year mandatory minimum applied. Rodriguez, 482 Mass. at 368, 373-74.[11]

A year later, in Commonwealth v. Thomas, 484 Mass. 1024 (2020), the Court construed G. L. c. 265, § 18B, which adds a penalty for possessing a firearm during the commission of any felony. Section 18B states that a person convicted of that offense “shall, in addition to the penalty for such offense, be punished by imprisonment for not less than five years.” G. L. c. 265, § 18B. By comparing the statutory language in § 18B to similar language used in other statutes, the Court held that § 18B did not require either a consecutive sentence or a five-year minimum sentence, but authorized any custodial sentence provided the maximum sentence is no less than five years. Thomas, 484 Mass. at 1026 n.8, citing Commonwealth v. Hines, 449 Mass. 183, 191-92 (2007). 

Another notable example involves the home invasion statute, G. L. c. 265, § 18C. In Commonwealth v. Brown, 431 Mass. 772 (2000), the SJC held that the statute’s primary penalty provision, that a person convicted of a home invasion “shall be punished by imprisonment in the state prison for life or for any term of not less than twenty years,” meant what its plain language suggests: “§ 18C establishes a mandatory minimum sentence and that offenders under this statute may be sentenced to a term ranging from twenty years (minimum) to life (maximum).” Id. at 775.

However, the Court noted in dicta that a 1998 amendment to the statute – that a person who commits a home invasion while armed with a firearm “shall be punished by imprisonment in the state prison for 20 years. Said sentence shall not be reduced to less than ten years.” – was “problematic” and “lacking in coherence,” in that it introduced inconsistent language. Id. at 780-81. The Court remarked that “[m]ost likely, the problems with the amendment were simply the result of a legislative oversight, one we cannot remedy. . . . We make no attempt to interpret the amendment, but invite the Legislature to clarify it.” Id. In a later appeal more directly implicating the 1998 amendment, the Court stated that even if some results might appear absurd, where it could not discern the Legislature’s intent as far as the required sentence for a particular home invasion conviction, it would resolve any uncertainty against the Commonwealth and in favor of the defendant. Commonwealth v. Burton, 450 Mass. 55, 59-60 (2007).

In 2004, the Legislature amended G. L. c. 265, § 18C, to its current form, simplifying the statute by removing some of the 1998 amendment’s confounding language, while still retaining the same general penalty provision that a home invasion “shall be punished by imprisonment . . . for life or for any term of not less than twenty years.” Although this simplified version resolved some earlier confusion about the length of the required sentence, it raised a new question as to the availability of probation: the previous version explicitly prohibited probationary sentences, but the 2004 amendment did not. In construing the amended statute, the SJC observed that the amendment “may indicate a legislative intent to give a sentencing judge the power, in appropriate situations, to impose a term of probation in lieu of incarceration.” Commonwealth v. Zapata, 455 Mass. 530, 535 (2009). Unable to answer that question conclusively, the Court applied the rule of lenity and held that the amended statute “does not prohibit a judge from sentencing the defendant to probation.” Id.

In Zapata, the Court conceded that its “result, which has the effect of offering a sentencing judge a choice between probation and a mandatory minimum prison term of twenty years, may seem contrary to common sense,” and “may appear to be an anomalous result.” Id. at 535-36. Thus, the Court “again invite[d] the Legislature to clarify G. L. c. 265, § 18C.” Id. at 536. To date, the Legislature has not done so. Nor would it be the last time the Court reached such an “anomalous result.”   

Déjà vu: Commonwealth v. Montarvo

In December 2020, the SJC issued another decision, this time construing the habitual criminal offender statute. That statute, also known as the “three-strikes” law, provides that any person convicted of a third qualifying felony “shall be punished by imprisonment in state prison or state correctional facility for such felony for the maximum term provided by law.” G. L. c. 279, § 25(a). Despite this seemingly plain language, in Commonwealth v. Montarvo, 486 Mass. 535 (2020), the Court held that the law allows a judge to impose a sentence of probation. In a unanimous opinion, the SJC found the sentencing provision ambiguous and once again concluded that the rule of lenity required a reading more favorable to the defendant.

To understand Montarvo, it is necessary to understand the habitual criminal offender law as a whole. The statute has two primary penalty provisions. Subsection (a) states that a person who is convicted of any felony after having twice previously been convicted of a felony and sentenced to prison terms of at least three years, “shall be considered a habitual criminal and shall be punished by imprisonment in state prison or state correctional facility for such felony for the maximum term provided by law.” G. L. c. 279, § 25(a). Subsection (b) states that a person who is convicted of one of nearly 40 specified violent crimes after having twice previously been convicted of qualifying offenses and sentenced to prison terms of at least three years “shall be considered a habitual offender and shall be imprisoned in the state prison or state correctional facility for the maximum term provided by law” for the specifically enumerated felony. G. L. c. 279, § 25(b). Subsection (b) further specifies that “[n]o sentence imposed under this subsection shall be reduced or suspended nor shall such person so sentenced be eligible for probation, parole, work release or furlough or receive any deduction from such person’s sentence for good conduct.” G. L. c. 279, § 25(b). There is no comparable provision in subsection (a).

Read in isolation from one another, each of these two subsections seems on its face to require sentencing a qualifying defendant to the “maximum term provided by law.” Reading the two provisions together, however, the SJC found inconsistency and ambiguity. The Court observed that although the plain text of § 25(a) seemed clear, the immediately following text of § 25(b) explicitly prohibiting probation (as well as parole and reduced or suspended sentences) implied that without such explicit prohibition in § 25(a), judges might still retain authority to deviate from a mandatory prison sentence under § 25(a). Montarvo, 486 Mass. at 537. The Court found this interpretation plausible given the text indicating “the Legislature intended the punishment imposed on the ‘habitual violent offenders’ sentenced under § 25(b) to be both more limited in its application and harsher once imposed than the penalties imposed under § 25(a).” Id. at 539. But other SJC precedent interpreting the statute’s basic sentencing language raised doubts about that proposition. Reading both subsections together, and employing all applicable tools of statutory interpretation, the Court concluded that, “whichever way the plain language of G. L. c. 279, § 25, is read, some aspect of it is superfluous. Thus, we are left to conclude that the text of G. L. c. 279, § 25 (a), is ambiguous on the matter of probation.” Id. at 540.  

Given the ambiguity, the Court looked unsuccessfully to legislative history and intent, reasoning that, “when the Legislature intends to bar probation, it knows how to say so explicitly.” Id., citing Zapata, 455 Mass. at 535. Ultimately unable to discern the Legislature’s intent or resolve the statute’s ambiguity, the SJC once again applied the rule of lenity, concluding that it “must read § 25 (a) to provide sentencing judges with the discretion to impose probation.” Id. at 542. This holding, the SJC acknowledged, “has the effect of offering a sentencing judge in some cases a Hobson’s choice between probation and a mandatory term of twenty years in prison,” which may seem nonsensical. “Yet if this choice sounds familiar,” the Court noted, “that is because it is. In Zapata, we reached the same result.” Id. at 543.[12] Once again, stymied by its own legal analysis, the SJC threw up its hands and pointed to an incoherent statutory scheme that guaranteed no satisfactory outcome.

Conclusion

Montarvo is simply the latest case that demonstrates the difficulty the courts have had interpreting many of the Commonwealth’s mandatory sentencing laws. Given the SJC’s underlying reservations about the disparate impact of mandatory sentencing laws, and the Court’s chafing at arbitrary restrictions imposed by particular statutes, it is likely that these laws will continue to be subject to careful scrutiny. It would not be a surprise to see future cases in which the SJC finds less-than-obvious exceptions or escape hatches to avoid the imposition of mandatory sentences that may seem clear on the face of a statute.

[1] See Massachusetts Sentencing Commission, Advisory Sentencing Guidelines, at 102 (“Best Practice Principles for Individualized Evidence-Based Sentencing”). The Sentencing Commission “does not endorse the use of mandatory minimum sentences.” Id. at 59. 

[2] See, e.g., G. L. c. 265, § 1 (murder in the first degree “punishable with . . . imprisonment for life”); G. L. c. 269, § 10(a) (unlawful possession of a firearm outside of home or work “shall be punished by imprisonment . . . for not less than 18 months . . . in a jail or house of correction”); G. L. c. 269, § 10(m) (unlawful possession of a magazine with a capacity of more than 10 bullets “shall be punished by imprisonment in a state prison for not less than two and one-half years”).

[3] See, e.g., G. L. c. 94C, § 32(b) (mandatory penalty for possession with intent to distribute a Class A controlled substance based on prior convictions); G. L. c. 269, § 10(d) (mandatory penalties increased for unlawful possession of a firearm depending on prior similar convictions); G. L. c. 269, § 10G (mandatory penalties increased for unlawful possession of a firearm depending on prior criminal record).

[4] Compare G. L. c. 265, § 13B (penalty for indecent assault and battery on a child under 14 punishable by up to 10 years) with G. L. c. 265, § 13B1/2 (indecent assault and battery on a child under 14 committed during another enumerated crime or by a mandated reporter “shall be punished by imprisonment . . . not less than 10 years”). See also, e.g., G. L. c. 94C, § 32E (increasing mandatory sentences depending on weight of illegal drugs charged).

[5] In his first State of the Judiciary Address in 2014, Chief Justice Gants called for the elimination of mandatory sentencing laws in favor of individualized, evidence-based sentencing in all criminal cases. He noted that charges with mandatory minimum sentences give prosecutors more power than judges in sentencing and result in disparate and inequitable impact on minority communities. He made similar observations and calls to action when testifying before the Joint Committee on the Judiciary in 2015. In his 2016 Judiciary Address, Chief Justice Gants announced that he had enlisted Harvard to study the persistent racial disparity in sentencing. 

[6] “Black and Latinx people charged with offenses carrying mandatory minimum sentences are substantially more likely to be incarcerated and receive longer sentences than White people facing charges carrying mandatory minimum incarceration sentences.” “Racial Disparities in the Massachusetts Criminal System,” A Report by The Criminal Justice Policy Program, Harvard Law School (2020), at 2. More broadly, it found that in a number of ways, “mandatory and statutory minimum sentences contribute to the disparities we see in incarceration length for people of color.” Id. at 59; see generally id. at 2-4, 28-32, 52-64. 

[7] Id. at 64 (“Black and Latinx defendants tend to face more serious initial charges that are more likely to carry a mandatory or statutory minimum sentence. Despite facing more serious initial charges, however, Black and Latinx defendants in Superior Court are convicted of offenses roughly equal in seriousness to their White counterparts. . . . Further, the penalty in incarceration length is largest for drug and weapons charges, offenses that carry longstanding racialized stigmas. We believe that this evidence is consistent with racially disparate initial charging practices leading to weaker initial positions in the plea bargaining process for Black defendants, which then translate into longer incarceration sentences for similar offenses.”).

[8] These studies were based on data from jurisdictions outside of Massachusetts. Id. at 59.     

[9] Many individuals charged with common offenses, including unlawful possession of a firearm or drug distribution—even absent any allegation of violence—are still routinely subject to mandatory minimums.    

[10] In Baez, the Court held that prior juvenile adjudications may constitutionally be used as prior convictions for sentencing adult defendants under Massachusetts’s “armed career criminal act,” G. L. c. 269, § 10G. Chief Justice Gants wrote separately “to encourage the Legislature to consider the wisdom and fairness of the mandatory minimum aspect of those enhanced sentences, especially where the predicate offenses were committed when the defendant was a juvenile.” Baez, 480 Mass. at 332.

[11] Acknowledging this “imperfect” statute’s “opaque” language was described by various trial and appellate judges as “vexing,” “confusing,” and “no grammatical paragon,” and had “caused courts some consternation,” the SJC left little doubt about its view of § 10(m): “Harmonizing the provisions in a manner that does not make any of the statutory language superfluous, that sees the statute as a whole without internal contradiction, and that renders the legislation consistent with common sense, all as the Legislature intended, is quite the job with this statute. The legislative history, while interesting, is only minimally helpful in resolving the issue at hand.” Rodriguez, 482 Mass. at 368, 369-71, 373 (internal citations omitted). 

[12] As in Zapata, the Court in Montarvo invited the Legislature to clarify its intent: “Should the Legislature decide to do so, it may amend § 25(a) to bar a judge from imposing probation. It need not look far for how to accomplish this goal.” 486 Mass. at 543, citing G. L. c. 279, § 25(b).   

Jared B. Cohen is an Assistant Attorney General in the Criminal Bureau of the Attorney General’s Office and a current participant in the BBA’s Public Interest Leadership Program.  This article represents the opinions and legal conclusions of its author and not necessarily those of the Office of the Attorney General. Opinions of the Attorney General are formal documents rendered pursuant to specific statutory authority.


Goodbye Substantial Contributing Factor: SJC Redefines the Massachusetts Causation Standard in Multiple Tortfeasor Cases

Creedon_Jresizedbtfitz_20140915_0129_Mby Jennifer A. Creedon and Stephanie M. Gazda

Legal Analysis 

In Doull v. Foster, 487 Mass. 1 (2021) (“Doull”), the Supreme Judicial Court (“SJC”) adopted a but-for factual causation standard as set forth in the Restatement (Third) of Torts (2010) and abandoned the substantial contributing factor test in matters involving multiple tortfeasors or multiple causes, except for toxic tort cases.

Background

Doull involved a medical malpractice claim against two medical providers for alleged negligent treatment of the Plaintiffs’ decedent. Dr. Richard Miller and Nurse Practitioner Ann Foster treated Laura Doull from 2008 to 2011. Foster provided Doull with progesterone cream in 2008 to treat perimenopause-related symptoms, which Doull used through the spring of 2011. Between March and May 2011, Doull complained of shortness of breath on three separate occasions, but Foster diagnosed it a symptom of Doull’s allergies and history of asthma. Doull suffered a stroke in May 2011 and another doctor diagnosed her with a pulmonary embolism and chronic thromboembolic pulmonary hypertension (CTEPH), a rare disease impacting the pulmonary artery and heart. Doull, 43 years old, died in 2015 from complications arising from CTEPH. Plaintiffs filed a complaint against Miller and Foster, alleging failure to obtain informed consent as to the potential risks of pulmonary emboli associated with the progesterone cream treatment and failure to properly diagnose and treat Doull for her symptoms of pulmonary emboli, leading to her premature death.

After the close of evidence at trial, the trial judge heard arguments concerning the disputed jury instructions. Plaintiffs argued for the application of the substantial contributing factor test. Under this test, to be found legally responsible for Doull’s injuries, the Defendants’ negligence need only be a substantial contributing factor in bringing about those injuries.[1] Defendants, on the other hand, sought a but-for causation instruction. Under this standard, even if they were found to be negligent, the jury would also have to find that Doull’s injuries would not have occurred but for their negligence. The trial court agreed that the but-for causation standard was the appropriate instruction.

The jury found that the Defendants did not fail to acquire informed consent from Doull regarding the progesterone cream. While the jury did find that Foster negligently failed to diagnose Doull’s pulmonary embolism and Miller failed to properly supervise Foster, it did not find this negligence was the “sole/but-for” cause of harm suffered by Doull under the trial court’s instruction.  

The SJC’s Decision

The main issues for the SJC to decide were, in a case involving multiple potential tortfeasors or potential causes of injury, whether the substantial contributing factor test may or must be used in lieu of the but-for standard in the causation jury instructions and whether the court should adopt a “factual cause” of harm standard, as provided in Sections 26 and 27 of the Restatement (Third) of Torts.

The SJC held that the but-for standard is the proper standard in most negligence cases, as it allows the factfinder to separate the necessary causes from other conduct that, although negligent, did not cause harm.[2] Under the Restatement (Third) of Torts, the factfinder can determine whether a tortfeasor is a factual cause even in instances where the cause was small but necessary.[3] The but-for standard does not require that a defendant must be the sole factual cause of harm.[4] Rather, it keeps the focus on whether the harm would still have occurred absent the defendant’s conduct.[5] Where multiple causes are alleged, which is often the case, it is appropriate to instruct a jury that there can be more than one factual cause of harm.[6] By recognizing that multiple causes can exist, the but-for standard precludes the need for substantial contributing factor in the causation analysis.[7]

In this case, the SJC found that the trial court’s but-for instruction to the jury was proper. The jury ultimately determined that the Defendants did not cause Doull’s injuries, despite breaching their duty as medical providers by failing to diagnose the pulmonary embolism, because the evidence showed that the demonstrated harm would have resulted even in the absence of their negligence. Thus, no causal connection existed between the Defendants’ conduct and Doull’s harm.[8] 

Despite being accepted and used by Massachusetts courts, the SJC observed that not only does the substantial contributing factor test create confusion as it is both too strict and too lenient, it also invites the factfinder to skip the factual causation inquiry by deciding the negligent conduct is substantial without determining whether it was even the cause of the harm. [9] Furthermore, it inserts a high degree of subjectivity as to what is substantial.[10]

Although the SJC chose not to extend its decision to toxic tort cases, the Court indicated in a lengthy footnote that it would reconsider the substantial contributing factor test in an appropriate toxic tort case in the future.[11] The SJC acknowledged that, because of the unique features of toxic tort cases, including the number of defendants involved, latency period of the diseases, and exposure from multiple sources, there might be difficulties in using the but-for standard in such cases. Additionally, there might be factual and scientific limitations on a plaintiff’s ability to establish the requisite causal connection between the harm and an individual defendant. 

Concurring in the judgment, Justice Lowy, joined by Justice Gaziano, agreed with the outcome of the case. Nonetheless, the concurrence criticized the majority for abandoning decades of precedent to alleviate confusion that does not exist, arguing that the substantial contributing factor test usefully directs the factfinder’s attention to the conduct of the parties in determining legal responsibility.[12] While the but-for test looks at what might have been and whether the harm would have occurred but for a defendant’s conduct, the substantial contributing factor test looks at what actually happened and whether a defendant’s conduct played a role in the result.[13] 

Conclusion

Given that the substantial contributing factor test has been used for over 100 years, Doull represents a significant change in Massachusetts tort law. The SJC saw an opportunity to untangle complex causal determinations by eliminating the substantial contributing factor test. Prior to Doull, a court could utilize a jury instruction that encompassed a substantial contributing factor test in lieu of a “but for” test in a multiple tortfeasor case. However, the substantial contributing factor test was never intended to be a wholesale replacement of but-for causation. In this way, Doull represents a return to concepts central to tort law, including the but-for standard. The decision marks an effort by the SJC to have the trial courts give consistent instructions on causation standards, and for the factfinder to determine whether a defendant’s conduct was a cause of the plaintiff’s harm. 

[1] See O’Connor v. Raymark Industries, Inc., 401 Mass. 586, 589 (1988). O’Connor defined the core principles of causation, including substantial contributing factor. Id. at 591-92. The trial court instructed the jury to find whether the plaintiff was exposed to asbestos from the defendant’s product, and if so, determine whether such exposure substantially contributed to the cause of his mesothelioma. Id. at 588-89. The trial court noted that “[i]t doesn’t have to be the only cause, but it has to be a substantial contributing cause. … It means something that makes a difference in the result.” Id. at 589. The jury found that while the plaintiff was exposed to asbestos from the product, such exposure did not substantially contribute to the cause of his mesothelioma. Id. at 587. On appeal, the SJC found that by defining a substantial contributing factor as “something that makes a difference in the result,” i.e., a but-for cause of the plaintiff’s harm, this implied that “the plaintiff had the burden of proving that the defendant’s product contributed in fact” to the eventual outcome “in a legally cognizable manner.” Id. at 592. 

[2] Doull v. Foster, 487 Mass. 1, 10 (2021). 

[3] Section 26 of the Restatement (Third) of Torts: Physical and Emotion Harm (2010) states that negligent conduct must be a factual cause of harm, meaning the harm would not have occurred absent the conduct, in order for one to be held liable. Multiple causes are addressed in Section 27, which provides that “each act is regarded as a factual cause of the harm.” Comment c to Section 27 further explains that if a defendant’s conduct was fully capable of causing the harm, then they cannot escape liability merely because of the existence of another sufficient cause.

[4] Doull, 487 Mass. at 12, citing Restatement (Third) of Torts, § 26 cmt c. 

[5] Id. at 12-13.

[6] Id. at 13, n.13. The SJC also refers to the concept of “causal sets” introduced in the Restatement (Third) of Torts, Section 26, cmt. c, which are defined as “the group of actions or conditions that were necessary to bring about the harm.” Id. at 13, n.14. Where the factual harm is an aggregate of multiple causes, the Restatement suggests that it is a causal set. Id.

[7] Id. at 13.

[8] Id. at 11-12.

[9] Id. at 15. 

[10] Id.

[11] Id. at 17, n.22.

[12] Id. at 25, 27. 

[13] Id. at 26-27. 

Jennifer A. Creedon is a Partner at Martin, Magnuson, McCarthy & Kenney. Her practice encompasses a wide variety of products liability and business litigation matters. Jennifer authored an amicus brief in Doull v. Foster on behalf of the Massachusetts Defense Lawyers Association (MassDLA).

Stephanie M. Gazda is an associate attorney at Martin, Magnuson, McCarthy & Kenney. Stephanie focuses her practice on toxic tort, products liability, and general liability matters.


Rethinking Batson-Soares

LAWHEAD1

  by Brian A. Wilson

   Legal Analysis

 As the American trial by jury system approaches its 400th year, unlawful discrimination in the selection of jurors remains a pressing issue. The peremptory challenge process – by which a party may object to the seating of a juror for virtually any reason without having to explain its motivation – has faced increasing scrutiny in the criminal trial context. Though not constitutionally guaranteed, the peremptory challenge has been hailed as having an “important role in assuring the constitutional right to a fair and impartial jury,” enabling a defendant to eliminate prospective jurors “whom he perceives to be prejudiced against him” or who may be “harboring subtle biases.”[1] It has simultaneously been criticized as a means by which prosecutors and defense attorneys engage in racial discrimination with virtual impunity, be it purposeful or motivated by implicit bias.

The Current Batson-Soares Framework

Over the past four decades Massachusetts has stood at the forefront of reform aimed at curbing discriminatory jury selection practices. Seven years before the United States Supreme Court held that a challenge based solely on race violates the Fourteenth Amendment’s Equal Protection Clause,[2] and fifteen years before it deemed solely gender-based challenges to be similarly unconstitutional,[3] the Supreme Judicial Court (SJC) held in Commonwealth v. Soares, 377 Mass. 461, cert. denied, 444 U.S. 881 (1979), that Article 12 of the Massachusetts Declaration of Rights precludes the exclusion of jurors on the basis of “sex, race, color, creed or national origin.”[4] Soares established a method for analyzing the validity of a peremptory challenge that would influence the Supreme Court’s creation of its landmark framework in Batson v. Kentucky, 476 U.S. 79 (1986).

Massachusetts’s “BatsonSoares” analysis presumes that parties exercise peremptory challenges lawfully, but permits a party to object to a strike on grounds that it was motivated by unlawful discrimination. A timely objection entitles that party to an immediate “three-step” hearing. At step one, the objecting party bears the burden of establishing a prima facie case that the strike was “impermissibly based on race or other protected status by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” If the objecting party satisfies this “minimal” requirement, the hearing proceeds to step two and the burden shifts to the party that lodged the strike to justify it on “group-neutral” grounds. So long as that party offers a reason that is group-neutral on its face, the hearing proceeds to step three, at which the judge determines whether the explanation is “both adequate and genuine.” If the judge so finds, the peremptory challenge stands and the prospective juror is excluded; otherwise the strike is denied, and the juror is seated.[5]

Commonwealth v. Sanchez: A Proposal to Eliminate Step One

Acknowledging the possibility of confusion regarding the BatsonSoares first step burden, in Commonwealth v. Sanchez, 485 Mass. 491 (2020), a decision authored by Justice Gaziano, the SJC clarified that the objecting party need only demonstrate an “inference,” rather than a “likelihood,” of discriminatory purpose and no longer would it need to show a “pattern” of discrimination.[6] The case was significant for another reason, however: it marked the first time that a justice proposed, in a published opinion, eliminating step one entirely. Justice Lowy in his concurrence recommended that “upon timely objection to a peremptory challenge made on the basis of race or another protected class, [the judge] should conclude that that party has met the first prong of the Batson-Soares test.” Justice Lowy argued this would “impose a process that recognizes not just the perniciousness of racial discrimination, but implicit bias as well”; create “a fairer process for the parties, attorneys, prospective jurors, and the court”; and “result in fewer avoidable reversals of convictions.”[7] (This last point is discussed in more detail below.) In a separate concurrence, Chief Justice Gants agreed that “there are sound reasons to consider abandoning the first prong of the Batson-Soares test,” but only “in a case where the question is squarely presented” and where the Court would “have the benefit of briefing by the parties and amici.”[8] 

The majority was “unconvinced that removing the first step entirely is quite as simple or salutary as [Justice Lowy’s] concurrence suggests.” The majority voiced concern that since “every potential juror is a member of some discrete race or gender, every peremptory strike then would be subject to challenge and explanation.” This, it opined, would lead to two possibilities: (1) that the Court would require a party to have a good faith basis for objecting to a challenge, which “merely would reinstate the first step of the Batson inquiry in a different guise,” or (2) that it would impose no such requirement, which would create “a strong incentive to challenge every peremptory strike” because even an unsuccessful objection, “at a minimum, could reveal something of the opposing trial strategy.”  The latter course, the majority warned, “would alter the nature of a peremptory challenge so fundamentally that it would raise the question whether peremptory challenges simply should be abolished.”[9]

Eliminating step one would put Massachusetts in the company of only six jurisdictions – Connecticut, Florida, Missouri, South Carolina, Washington, and the United States Court of Military Appeals – that have departed from the Batson framework and require only that a defendant object on grounds of unlawful discrimination to satisfy the prima facie burden and trigger step two of the hearing.[10] As significantly as it would alter the BatsonSoares test, however, Justice Lowy’s proposal does not represent as radical a departure from Massachusetts practice as it may seem. For years the Commonwealth’s judges have, upon objection to a challenge, remained free to bypass step one sua sponte; the SJC has “persistently urged, if not beseeched, judges to reach the second prong and elicit a group-neutral explanation regardless of whether they find that the objecting party has satisfied the first prong.”[11] In fact, Massachusetts stands among a handful of states that empower a trial judge to object to a challenge sua sponte, thereby triggering a Batson hearing even where the non-challenging party remains silent.[12] 

Legislative Intent to Eliminate Step One

A bill entitled “An Act Addressing Racial Disparity in Jury Selection” (Senate Bill 918), which would create a new statutory framework for analyzing the validity of peremptory challenges, is currently under consideration in the Massachusetts Legislature. Virtually identical to a court rule Washington enacted in 2018, the law would essentially eliminate step one of the Batson-Soares test by mandating that, upon a timely objection by the opposing party or the judge sua sponte, the proponent of the strike “shall articulate the reasons the peremptory challenge has been exercised.”[13] Following what is essentially step two in its current form, the judge would then conduct the equivalent of step three and “evaluate the reasons given to justify the peremptory challenge in light of the totality of circumstances.”[14] Factors the judge would consider in determining their validity include, but would not be limited to:

[1] the number and types of questions posed to the prospective juror, which may include consideration of whether the party exercising the peremptory challenge failed to question the prospective juror about the alleged concern or the types of questions asked about it; . . . [2] whether the party exercising the peremptory challenge asked significantly more questions or different questions of the potential juror against whom the peremptory challenge was used in contrast to other jurors; [3] whether other prospective jurors provided similar answers but were not the subject of a peremptory challenge by that party; [4] whether a reason might be disproportionately associated with a race or ethnicity; and [5] whether the party has used peremptory challenges disproportionately against a given race or ethnicity, in the present case or in past cases.[15]

The trial judge would ultimately determine whether “an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge.” If so, the judge would deny the challenge, even in the absence of a finding of “purposeful discrimination.”[16]    

The bill enumerates seven reasons deemed “presumptively invalid,” all of which the Washington rule recognizes as “historically . . . associated with improper discrimination in jury selection”:

(1) having prior contact with law enforcement officers; (2) expressing a distrust of law enforcement or a belief that law enforcement officers engage in racial profiling; (3) having a close relationship with people who have been stopped, arrested, or convicted of a crime; (4) living in a high-crime neighborhood; (5) having a child outside of marriage; (6) receiving state benefits; and (7) not being a native English speaker.[17]

The bill also acknowledges, as does the Washington rule, the concern that attorneys often cite a venireperson’s behavior in court to disguise a racially motivated strike. The bill mandates that any challenge “based on the prospective juror’s conduct (i.e. sleeping; inattentive; staring or failing to make eye contact; exhibiting a problematic attitude, body language, or demeanor; or providing unintelligent or confused answers) . . . must be corroborated by the judge or opposing counsel or the reason shall be considered invalid.”[18]  

One Further Consideration

While several states are debating whether to continue following the Batson protocol, whether Massachusetts retains step one is a critical issue in part because of the legal consequences of a “first-step error” relating to a prosecutor’s peremptory challenge. The SJC deems an incorrect ruling that the defendant failed to establish a prima facie case of unlawful discrimination a “structural error” that automatically requires a new trial. The Court consistently declines to follow the practice of federal and most state appellate courts, which typically remand for a hearing to allow the trial judge to conduct the belated step two and step three analyses.[19] Therefore, the erroneous termination of the inquiry at step one and resulting absence of any explanation from the prosecutor – which is wholly within the province of the trial judge to order sua sponte – necessarily results in a conviction being vacated, even where eliciting a legitimate race-neutral reason might be possible on remand. This rule mandated the reversal of three first-degree murder convictions within a fifteen-month span in 2017 and 2018, which Justice Lowy cited as proof of step one’s “unnecessary and inefficient” nature.[20]

Conclusion

Though the Court has not revisited the question since Sanchez, the viability of BatsonSoares in its current form remains a live issue. It appears the Judiciary, the Legislature, or both will decide before long whether to retain the “minimal” burden of proving a prima facie case of unlawful discrimination, to eliminate step one entirely, or to adopt some middle ground. Meanwhile trial judges across the Commonwealth will, unlike in most other states, enjoy broad discretion to require an attorney to justify a challenge even in the absence of an objection. As such, Massachusetts remains at the forefront of the movement to end unlawful discriminatory selection practices.

[1] Commonwealth v. Bockman, 442 Mass. 757, 762 (2004).

[2] See generally Batson v. Kentucky, 476 U.S. 79 (1986).

[3] See generally J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994).

[4] Soares, 377 Mass. at 488-89.

[5] Commonwealth v. Jackson, 486 Mass. 763, 768 (2021) (internal quotations omitted); Commonwealth v. Sanchez, 485 Mass. 491, 510 (2020). See also Batson, 476 U.S. at 96-98 (defendant must first demonstrate “the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. . . . Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation. . . . The trial court then will have the duty to determine if the defendant has established purposeful discrimination”). Acknowledging “the variety of jury selection practices” followed nationwide, the Supreme Court left the states to decide whether to adopt Batson’s procedural framework. See id. at 99 & n.24.

[6] Sanchez, 485 Mass. at 492.     

[7] Id. at 515 (Lowy, J., concurring).

[8] Id. at 518 (Gants, C.J., concurring).

[9] Id. at 513 n.19. Several since-retired justices have called for the elimination of peremptory challenges entirely. See Commonwealth v. Maldonado, 439 Mass. 460, 468 (2003) (Marshall, C.J., concurring) (joined by Justices Greaney and Spina in noting that “it is all too often impossible to establish whether a peremptory challenge has been exercised for an improper reason” and declaring it “time to either abolish them entirely, or to restrict their use substantially”); Commonwealth v. Calderon, 431 Mass. 21, 29 (2000) (Lynch, J., dissenting) (suggesting that “rather than impose on trial judges the impossible task of scrutinizing peremptory challenges for improper motives, we abolish them entirely”).

[10] See State v. Holloway, 553 A.2d 166, 171 (Conn.), cert. denied, 490 U.S. 1071 (1989); State v. Johans, 613 So.2d 1319, 1321 (Fla. 1993); State v. Parker, 836 S.W.2d 930, 938 (Mo. 1992); State v. Chapman, 454 S.E.2d 317, 320 (S.C. 1995); United States v. Moore, 26 M.J. 692, 698-700 (A.C.M.R. 1988) (en banc); Wash. Gen. R. 37(d) (2018). California will likewise eliminate step one in criminal trials beginning on January 1, 2022. See Cal. Civ. Proc. Code § 231.7 (2020). In Hawaii a prima facie case is established where a prosecutor strikes all members of the venire who share a common identity group with the defendant. See State v. Batson, 788 P.2d 841, 842 (Haw. 1990).

[11] Sanchez, 485 Mass. at 515 (Lowy, J., concurring). See also Commonwealth v. Issa, 466 Mass. 1, 11 n.14 (2013) (urging judges to “think long and hard before they decide to require no explanation from the prosecutor for the challenge”).

[12] See Commonwealth v. Smith, 450 Mass. 395, 405, cert. denied, 555 U.S. 893 (2008) (where defense counsel does not object to prosecutor’s challenge, “a judge may, of course, raise the issue of a Soares violation sua sponte”); Commonwealth v. LeClair, 429 Mass. 313, 322 (1999) (“Whether the [objection to the defendant’s peremptory challenge] was initially raised by the Commonwealth or the judge, sua sponte, is immaterial”).

[13] S. Bill 918, 192nd Gen. Ct. (Mass. 2021). See Wash. Gen. R. 37(c)&(d).

[14] S. Bill 918, 192nd Gen. Ct. (Mass. 2021). See Wash. Gen. R. 37(e).

[15] S. Bill 918, 192nd Gen. Ct. (Mass. 2021). See Wash. Gen. R. 37(g). See also Sanchez, 485 Mass. at 518-19 (finding relevant “(1) the number and percentage of group members who have been excluded from jury service due to the exercise of a peremptory challenge; (2) any evidence of disparate questioning or investigation of prospective jurors; (3) any similarities and differences between excluded jurors and those, not members of the protected group, who have not been challenged (for example, age, educational level, occupation, or previous interactions with the criminal justice system); (4) whether the defendant or the victim are members of the same protected group; and (5) the composition of the seated jury”).

[16] S. Bill 918, 192nd Gen. Ct. (Mass. 2021). See Wash. Gen. R. 37(e).

[17] S. Bill 918, 192nd Gen. Ct. (Mass. 2021). See Wash. Gen. R. 37(h).

[18] S. Bill 918, 192nd Gen. Ct. (Mass. 2021). See Wash. Gen. R. 37(i) (noting those reasons “also have historically been associated with improper discrimination in jury selection”).

[19] See Sanchez, 485 Mass. at 501-02.

[20] Id. at 517 (Lowy, J., concurring). See Commonwealth v. Ortega, 480 Mass. 603, 607-08 (2018); Commonwealth v. Robertson, 480 Mass. 383, 397 (2018); Commonwealth v. Jones, 477 Mass. 307, 325-26 (2017).

Brian A. Wilson is a Lecturer and Clinical Instructor within the Criminal Law Clinical Program at Boston University School of Law and supervisor of its Prosecutor Clinic. He serves as a Special Assistant District Attorney in Norfolk County, where he previously spent 17 years as an appellate and Superior Court trial prosecutor. He is a graduate of Emory University and Boston University School of Law, and is a member of the Boston Bar Association.


ABA Formal Opinion 497

Woolf_JeffreyNewhouse_Martinby Jeffrey D. Woolf and Martin Newhouse

Legal Analysis

On February 10, 2021, the Standing Committee on Ethics and Professional Responsibility of the American Bar Association (ABA) issued Formal Opinion 497 (Opinion) entitled “Conflicts Involving Materially Adverse Interests.”  As its title indicates, the Opinion attempts to define for practitioners what interests can be “materially adverse” when determining whether a conflict of interest exists under ABA Model Rules 1.9(a) (which addresses conflicts of interest between a current client and a former client on the same or a “substantially related matter”) and 1.18(c) (which addresses conflicts of interest between a current client and a prospective client on the same or a “substantially related matter”). Unlike ABA Model Rule 1.7 (the general conflict of interest rule), both Model Rules 1.9 and 1.18 use the “materially adverse” terminology when discussing conflicts of interests.

This article summarizes the Opinion and discusses other instances of potentially materially adverse interests that the Opinion does not cover, but of which practitioners should nevertheless be aware.

Model Rule 1.9(a) speaks to a conflict of interest that exists where a current client seeks representation in “the same or a substantially related matter in which the current client’s “interests are materially adverse to the interests of the former client.”  (emphasis added.)  Model Rule 1.18(c) prohibits representing “a client with interests materially adverse to those of [a] prospective client.” (emphasis added.)  As noted, the Opinion addresses some, but not all, of the issues raised by the term and the meaning of “materially adverse interests” as it appears in these rules, and how the phrase should be construed in the two rules.

First, the Opinion reviews the origins of the “materially adverse” standard and notes that “material adverseness” does not reach situations where the representation of a current client may pose a general harm to economic or financial interests “without some specific tangible harm.”  Citing Zerger & Mauer LLP v. City of Greenwood, 751 F.3d 928 (8th Cir. 2014), the Opinion notes that a fact-specific analysis is required to determine “whether the current representation may cause legal, financial or other identifiable detriment to the former client.” Id. at 933.

It then addresses three specific types of situations where “materially adverseness” can be found under Model Rule 1.9(a): (a) suing or negotiating against a former client; (b) attacking the lawyer’s own prior work for the former client; and (c) examining a former client in a deposition or trial.  Summaries of the Opinion’s treatment of each of these follows.

Suing or Negotiating Against a Former Client.

Absent written consent by the former client, suing a former client or defending a new client against a claim by a former client on the same or a substantially related matter is prohibited, as is negotiating against a former client in the same or a substantially related transactional matter.  Unfortunately, the Opinion does not address what is meant by “substantially related,” a subject that has spawned much litigation.

Attacking the Lawyer’s Own Prior Work.

Examples of attacking the lawyer’s own prior work include challenging a patent that the lawyer previously obtained for a former client, or challenging, on behalf of a new client, a real estate restrictive covenant that the lawyer previously drafted for the seller of the land.

Examining a Former Client.

Model Rule 1.9(c)(1) prohibits a lawyer from using information “relating to the representation of a former client to the disadvantage of the former client,” lawyer unless the information has become “generally known.”  Even where the information has become known, however, the lawyer may still have a conflict of interest under Model Rule 1.9 in examining the former client, if the former client’s interests are “materially adverse” to the current client and the current matter is “substantially related” to the prior matter.  Lawyers should be aware that courts have sometimes found “material adverseness” when a lawyer proposes to examine a former client, even where no information from the prior representation will be used.  For example, in Illaraza v. Hovensa, LLC, 2012 WL 115446 (D. V.I. Mar. 31, 2012), at *6-10, a lawyer who had previously represented a company’s employee-manager in a criminal case was disqualified from later representing plaintiffs in a wrongful discharge action against their former employer, where the plaintiffs contended that the employee-manager had defamed them.  The court rejected the lawyer’s promises not to use confidential information against the former client (employee-manager) and the offer not to cross-examine her former client on any topics where the lawyer had confidential information.

Matters Not Addressed in the Opinion.

Unfortunately, the Opinion does not address several types of material adverseness that frequently arise and raise unresolved issues.  Among these is the “positional conflict,” referenced in Comment [24] to Model Rule 1.7.  Suppose you concentrate in a particular area of law (e.g., franchise or landlord-tenant litigation) where you may represent a franchisor (or a landlord) in one case and a franchisee (or a tenant) in another case.  As long as you are not litigating against a current or former client, or challenging your own prior results in a previous case, then you might think there is no conflict of interest.  In fact, even if you advocate a position in one case that is contrary to a position you previously advocated in another case, Comment [24] says that this does not automatically create a conflict of interest.  However, if the position you take may create legal precedent that is “likely to seriously weaken the position taken on behalf of the other client,” then you may have a conflict of interest.  (Examples include advocating for a precedent that changes the interpretation of a law or regulation or a burden of proof.) Comment [24] concludes with the warning: “If there is significant risk of material limitation, then absent informed consent of the affected clients, the lawyer must refuse one of the representations or withdraw from one or both matters.”

Another type of conflict, not discussed in the Opinion, is the so-called “playbook” conflict, where a lawyer may be disqualified because the lawyer knows the former client’s legal or business “playbook” or strategy.  In Nasdaq, Inc. v. Miami Int’l. Holdings, 2018 WL 6171819 (D. N.J. 2018), a case mentioned in the Opinion but not discussed for this purpose, the court disqualified Fish & Richardson from representing the defendants in pending litigation because its Boston office had, over seven years before, represented Nasdaq in patent applications, even though the Boston office had been walled off from the pending litigation.  In addition to finding a substantial relationship between the present litigation and the past transactional work, the court said that Fish & Richardson knew and had shaped Nasdaq’s internal IP and patent strategy.  Weighing the applicable factors to determine whether disqualification was warranted,[1] the court concluded that, on balance, disqualification was appropriate.

One of the earliest cases in which a lawyer was disqualified for knowing the former client’s litigation philosophy, methods, and procedures is Gray v. Commercial Union Ins. Co., 191 N.J. Super. 590, 486 A.2d 721 (1983).  There, the lawyer had worked for about twenty-one years as outside counsel, defending the company’s insureds in personal injury litigation.  While the lawyer claimed he “was never made privy to any confidential or proprietary information of” the insurance company and never “receive[d] any information “regarding the administration of various of defendant’s business operations,” the insurer successfully argued that his knowledge of “its claims and litigation philosophy and its methods and procedure in handling of defending claims and litigation” was “confidential and proprietary information of” the insurer.  The court found that the lawyer “necessarily became familiar with such useful information as the strengths and weaknesses of this corporate client’s decision makers [and] their attitude towards settlement.”  Accordingly, the lawyer and his firm were disqualified from representing the plaintiff in that case.  Although not discussed in Gray because it predates the ABA Model Rules, this “playbook information” may be a subset of “confidential information referenced in Comment [3] to Model Rule 1.9, which says in pertinent part:

Matters are “substantially related” for purposes of this Rule if . . . there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter. . . .  In the case of an organizational client, general knowledge of the client’s policies and practices ordinarily will not preclude a subsequent representation; on the other hand, knowledge of specific facts gained in a prior representation that are relevant to the matter in question ordinarily will preclude such a representation.  A conclusion about the possession of such information may be based on the nature of the services the lawyer provided the former client and information that would in ordinary practice be learned by a lawyer providing such services.  (Emphasis added).

Accordingly, an in-house lawyer or an outside counsel who formerly had regularly represented a client should be wary of undertaking a representation that could be characterized as relying  on the lawyer’s knowledge of unique or confidential information of the former client in suing the former client.

Materially Adverse to a Prospective Client.

Almost the entire Opinion is devoted to conflicts with former clients.  It does, however, discuss one example of materially adversity toward a prospective client, In re Carpenter, 863 N.W.2d 223 (N.D. 2015).  In that case an individual consulted the lawyer about a matter adverse to the Christian Science Church of Boston. The prospective client had discovered that mineral rights to land in North Dakota had been left by a decedent to the Church and hoped for a fee in bringing it to the Church’s attention.  After declining the representation, the lawyer took the same information to the Church himself and offered to represent the Church with respect to the mineral rights.  This was found to be “materially adverse to the prospective client’s interests.”

Conclusion

The Opinion concludes by noting that, even if a current representation is “materially adverse” to the interests of a former or a prospective client and the matters are “substantially related,” it may still be possible to represent the current client.  However, that will require informed consent, confirmed in writing, by the former or prospective client.  Importantly, however, that consent does not in itself waive the lawyer’s obligations to maintain the confidentiality of all information gained from the prior representation of the former client or the consultation with a prospective client.  For that, the Opinion notes that the lawyer must obtain a separate informed consent, also confirmed in writing, under Model Rule 1.6.

It is important to note, in considering whether a separate consent under Rule 1.6 is required, that while the Massachusetts version of Rule 1.6(a) is restricted to “confidential information related to the representation of [the] client,” ABA Model Rule 1.6(a) refers more broadly to “information related to the representation of [the] client.”  The prudent practitioner would be well advised to take a more expansive view of what information requires “informed consent,” particularly if the lawyer practices outside of Massachusetts or if the client is located outside of Massachusetts in a jurisdiction that has adopted the broader language of the ABA Model Rule (such as, e.g., Rhode Island).

Finally, because, as discussed above, the Opinion does not identify all instances of “material adversity,” ethical practice requires a lawyer not to rely entirely on the Opinion.  A lawyer should also be familiar not only with the omitted examples discussed above, but, as importantly, with the court and disciplinary decisions in the jurisdictions in the which the lawyer is active. These, along with the Opinion, should guide the lawyer on this issue.

[1] Citing Wyeth v. Abbott Labs, 692 F. Supp. 2d 453, 459 (D. N.J. 2010), the NASDAQ Court said it should consider the following factors in determining whether disqualification is warranted: (1) prejudice to the former client; (2) prejudice to the new client; (3) whether the law firms representation of the former client in the former matter has allowed the new client to gain access to any confidential information relevant to this case; (4) “the cost—in terms of both time and money—“for the new client to retain new counsel; (5) “the complexity of the issues in the case and the time it would take new counsel to acquaint themselves with the facts and issues”; (6) “which party, if either, was responsible for creating the conflict.”

Jeffrey D. Woolf is an Assistant General Counsel to the Board of Bar Overseers and is a member of the BBA Ethics Committee.

Martin J. Newhouse, President of the New England Legal Foundation, is a member of the SJC Clients’ Security Board and BBA Ethics Committee.


Secretly Recording Public Officials: Challenges to the Massachusetts Wiretap Act

FerchResized

by Ryan E. Ferch

Legal Analysis

The proliferation of electronic recording devices and media sharing platforms has drastically changed our daily interactions and views about privacy. Perhaps nowhere is this effect more apparent than in civilians’ recordings of public officials, in particular, law enforcement officers. The publication of these recordings raises profound issues about racial and ethnic disparities and public accountability, the effectiveness of police training and community policing strategies, the risk of violence law enforcement officers face in the performance of their duties, and society’s treatment of the mentally ill, among others.

Massachusetts courts and the First Circuit have grappled with the nexus between electronic recordings and rights protected by the First Amendment since the enactment of the Massachusetts wiretap statute, G.L. c. 272, § 99 (“Section 99”), in 1968. But until Project Veritas Action Fund v. Rollins, 982 F.3d 813 (1st Cir. 2020), no court had addressed squarely whether secret recordings are protected by the First Amendment. In Project Veritas, the First Circuit concluded that Section 99 violated the First Amendment in one specific circumstance: as applied to the statute’s criminalization of “secret, nonconsensual audio recording of police officers discharging their official duties in public space.” Project Veritas, 982 F.3d at 844.

Less than six months after Project Veritas, the Supreme Judicial Court (“SJC”) in Curtatone v. Barstool Sports, Inc., No. SJC-13027, 2021 WL 2408015 (June 14, 2021), also addressed Section 99 in the context of a recording of a public official. Although Curtatone did not delve into the constitutionality of the statute, the SJC held that a recording made openly and with the speaker’s knowledge was not a “secret recording” even though it was obtained by false pretenses.

Prior Decisions on the First Amendment and What Is “Secret”    

Section 99 provides in relevant part that it is a crime to intentionally, secretly record, or attempt to record without a warrant—i.e., “to intercept”—a wire or oral communication without permission of all participants. G.L. c. 272, §99 B(4).[1] Thus, prior to Project Veritas, Section 99 was interpreted to criminalize all non-consensual, surreptitious recordings regardless of any reasonable expectation of privacy by the recorded party. See Commonwealth v. Hyde, 434 Mass. 594, 599-600 (2001) (Section 99 is “intended … strictly to prohibit all secret recordings by members of the public, including recordings of police officers or other public officials interacting with members of the public, when made without their permission or knowledge”). Foreshadowing Project Veritas, however, the dissent in Hyde cautioned that such a reading of Section 99 “threaten[ed] the ability of the press—print and electronic—to perform its constitutional role of watchdog.” Id. at 613 (Marshall, C.J., dissenting).

The requirement in Section 99 that all parties to a recorded communication must consent is colloquially referred to as “two-party consent.” Unlike most states’ wiretap laws, Section 99 does not provide an exception to the consent requirement for parties who have no reasonable expectation of privacy. See Project Veritas, 982 F.3d at 817, 840. Although nonconsensual audio recordings without a warrant generally violate Section 99, the SJC has also held that “actual knowledge of the recording” by the party being recorded is sufficient, and affirmative authorization or express consent is not required to avoid liability under the statute, Commonwealth v. Jackson, 370 Mass. 502, 507 (1976), even when the party being recorded is a police officer, Hyde, 434 Mass. at 605 (citing Jackson, 370 Mass. at 507).

No prior First Circuit decision—nor any other federal case before Project Veritas—addressed directly whether First Amendment protections extended to secret recordings of public officials, including law enforcement. Glik v. Cunniffe, 655 F.3d 78, 85 (1st Cir. 2011), for example, rose out of an arrest for openly filming police officers arresting an individual on the Boston Common. There, the First Circuit defined the scope of recording activity that triggers First Amendment protection to include the “right to film government officials, including law enforcement officers, in the discharge of their duties in a public space.” Id. Similarly, Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014), addressing the New Hampshire wiretap statute, extended the reasoning of Glik and held that the First Amendment protects the open recording of a police officer conducting a traffic stop. Id. at 2-3, 7. Although limited to open recordings, in Project Veritas the First Circuit observed that these decisions “suppl[y] strong support for the understanding [that First Amendment-protected recording of police] encompass[es] recording even when it is conducted ‘secretly,’ at least as Section 99 uses that term.” Project Veritas, 982 F.3d at 832.

Project Veritas: First Amendment Protects Secret Recording of Police Officers Performing Their Duties in Public

Project Veritas consolidated the appeals of two groups of plaintiffs. The plaintiffs in one appeal (the “Martin plaintiffs”) are civil rights activists who openly record police officers performing their duties in public and who sought declaratory and injunctive relief in their First Amendment challenge to a portion of Section 99. The First Circuit considered their challenge to Section 99 “insofar as it applies to bar the secret, nonconsensual audio recording of police officers discharging their official duties in public places.” Project Veritas, 982 F.3d at 826. The plaintiff of the second appeal, Project Veritas—a national media organization “dedicated to undercover investigative journalism”—challenged the constitutionality of Section 99 on several broader First Amendment grounds: (1) as facially overbroad in its entirety; (2) as applied to the prohibition against the “secret, nonconsensual audio recording of any person who does not have a reasonable expectation of privacy in what is recorded”; and (3) as applied to the prohibition against the “secret, nonconsensual audio recording of all government officials discharging their official duties in public spaces.” Id. at 822-24, 840-42. 

Applying intermediate scrutiny,[2] the First Circuit addressed the merits of the Martin plaintiffs’ claim and affirmed that Section 99 was unconstitutional in a narrow and specific set of circumstances: insofar as it imposed an outright ban on “secret recordings” made in “public spaces,” of police officers, during the discharge of their “official functions.” Id. at 827-28. The court determined Section 99 was not narrowly tailored enough to further the government’s legitimate interest in preventing interference with the officers’ ability to do their jobs and in protecting the privacy of citizens. Id. at 836. Instead, Section 99 impermissibly prohibited all secret recording, “notwithstanding the myriad circumstances in which it may play a critical role in informing the public about how the police are conducting themselves, whether by documenting their heroism, dispelling claims of their misconduct, or facilitating the public’s ability to hold them to account for their wrongdoing.” Id. at 835-37.

In balancing the government’s interests, the court recognized that police officers surrender some of their privacy when performing their official functions and then delved into the privacy interests of the variety of citizens who interact with the police—which can include anyone from confidential informants to rape victims, minor victims, and witnesses. Id. at 838-39. As the court recognized, there is inherent tension here—citizens have greater privacy interests at stake than uniformed officers, and notice of recording may help them avoid shame or embarrassment. Id. at 839. Nonetheless, the First Circuit concluded that Section 99’s “blunderbuss prohibitory approach” was too broad to serve the important interests implicated in the Martin plaintiffs’ circumstances, noting that police officers presumably are already careful when having sensitive conversations within earshot of others, and that individuals’ privacy interests are “hardly at their zenith” when speaking to police officers in public. Id. at 837-39.

Justiciability of Pre-Enforcement First Amendment Challenges

The discussion of justiciability in Project Veritas—namely whether the plaintiffs’ pre-enforcement First Amendment claims were ripe—is thorough and a useful guide for future pre-enforcement cases. To determine whether the plaintiffs’ various claims were ripe, the First Circuit applied the two-part test from Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), and evaluated: (i) the fitness of the issue for judicial review (in terms of finality, definiteness, and sufficient development of facts) and (ii) the hardship to the parties of withholding adjudication (in terms of creating a direct and immediate dilemma). Project Veritas, 982 F.3d at 825-26. Characterizing the Martin plaintiffs’ single claim as presenting a narrow facial challenge to Section 99 as applied to the secret, nonconsensual audio recording of police officers discharging their official duties in public, the First Circuit concluded the claim presented a purely legal challenge that met Article III’s ripeness demands. Id. at 825-30.  

In contrast, Project Veritas’s as-applied challenges—that Section 99 violates the First Amendment by prohibiting (i) the secret recording of all individuals who have no reasonable expectation of privacy and (ii) the nonconsensual recording of all government officials in their discharge of duties in public space—evidenced “serious ripeness concerns.” Id. at 842-44. Specifically, the court concluded that the disparity between Project Veritas’s proposed secret newsgathering actions and the scope of relief sought was too great to present a well-defined, live, justiciable, pre-enforcement controversy. Id. at 842-43. Importantly, these rulings significantly narrowed the ultimate decision by vacating the lower court’s ruling on the merits that would have allowed the secret recording of any “government official” performing official duties in a public space. Id. at 824, 843-44. Also, the First Circuit affirmed the rejection of Project Veritas’s facial overbreadth claim, which would have invalidated Section 99 in its entirety, noting that Project Veritas “fails to show, as it must, that the unconstitutional applications are ‘substantial’ relative to the extensive range of applications [of Section 99 not challenged as unconstitutional].” Id. at 841. See also id. at 844 (emphasizing “the substantial protection for privacy that [Section 99] provides in contexts far removed from those that concern the need to hold public officials accountable”).  

Project Veritas has sought certiorari review of the First Circuit’s denial of its facial overbreadth challenge and determination of insufficient ripeness as to its as-applied claims. The treatment of this petition will be interesting, as the Supreme Court has never addressed the prohibitions on open or secret recording of law enforcement. See id. at 835.

Curtatone: What Is “Secret Recording” that Constitutes Prohibited “Interception”?

Although Curtatone did not address the constitutionality of Section 99 like Project Veritas, it did involve an actual, discrete recording of a public official. The SJC held that a recording made openly and with consent—even if induced under false pretenses of who was recording the communication—is not a “secret recording” so as to give rise to a cognizable claim of unlawful “interception” within the meaning of Section 99.

In Curtatone, an employee of Barstool Sports, using his real name and affiliation, requested an interview with Joseph Curtatone, the mayor of Somerville. His request was unsuccessful. He then contacted a Somerville official identifying himself as a specific reporter for the Boston Globe and asked to interview Mr. Curtatone. The mayor agreed to that request, believing it to be with the Boston Globe reporter. During the interview, the Barstool Sports employee continuously maintained he was the Boston Globe reporter. Critically, at the beginning of the interview the mayor consented to it being recorded. Barstool Sports later posted the interview on its blog. Slip op. at 4.

The SJC concluded that to violate Section 99, the recording itself that must be “(1) secretly made and (2) without prior authority by all parties” to constitute a prohibited “interception.” Id. at 6. That is, “it is the act of hearing or recording itself that must be concealed to fall within the prohibition against ‘interception’ within [Section 99],” and the “identity of the party recording . . . or, indeed, the truthfulness with which that identity was asserted is irrelevant.” Id. at 8. In short, where the [act of] recording but not the [true] identity of the recorder was known and agreed upon” by the speaker, the recording was not made “secretly.” Id. at 10.

Thus, Curtatone further narrowed the reach of Section 99 by rejecting the mayor’s argument that the recording at issue was secret and violated Section 99 because (a) both parties must provide “actual consent” for a lawful recording, and legally effective consent was not possible to provide where he did not know the true identity of the interviewer; and (b) the Barstool Sports employee secretly heard and recorded the conversation or illegally intercepted the communication because the mayor was falsely led to believe the employee was someone else. Id. at 5. Notably, in rejecting the mayor’s assertion that his privacy rights were violated, the SJC found it “relevant to note that the plaintiff was a mayor of a city with more than 80,000 people, [who] believed he was speaking on the record to a newspaper reporter,” notwithstanding that Section 99 provides no exemption for an individual with no expectation of privacy. Id. at 10.

What’s Next?

Project Veritas and Curtatone raise several questions. For one, how will police interactions with private citizens in public spaces change, if at all, given the new ability to secretly record? Also, given the recognition that citizens retain their privacy interests, will there be efforts to protect the rights of informants, witnesses, and victims of crime? Also, will there be another attempt to expand the scope of permissible recording to other types of government officials performing their duties in public spaces? On this point, the First Circuit recognized that the “First Amendment analysis might be appreciably affected by the type of government official who would be recorded”—an elected official, a school teacher, or a bus driver. Project Veritas, 982 F.3d at 843. Similarly, the SJC’s analysis anticipates that the identity of the public official is critically relevant to determining the applicable privacy interest. And finally, over fifty years since enactment of Section 99, will the Massachusetts Legislature reexamine the wiretap statute in light of the rapid developments in technology and recent court rulings?

[1] In addition to criminal penalties, Section 99 provides a civil cause of action for individuals whose “communications were intercepted, disclosed or used except as permitted or authorized” by Section 99, or whose privacy was so violated. G.L. c. 272, § 99 Q.

[2] “Intermediate scrutiny” requires the determination of whether the law is “narrowly tailored to serve a significant government interest” and “must leave open ample alternative channels for communication,” but need not be the “least restrictive means of achieving the government’s interests.” Project Veritas, 982 F.3d at 834-36. This procedural issue had not been addressed squarely before in similar First Amendment cases and the First Circuit’s detailed discussion is worth careful review.

Ryan E. Ferch is currently Senior Counsel at the Massachusetts Bay Transportation Authority.  Until 2017, as an Assistant Attorney General, he represented the defendants in the Project Veritas and Martin cases.


When Everything Slowed Down: Evaluating the Right to Speedy Trial in a Pandemic

Deakin_106x126Janet L. Sanders_106x126by Hon. David A. Deakin and Hon. Janet L. Sanders

Legal Analysis

The COVID-19 pandemic has halted jury trials in Massachusetts state courts since March 13, 2020. The inability to set a reliable trial date, in turn, has created a logjam of unresolved cases. Between 2017 and 2019, Massachusetts trial courts empaneled an average of 3883 juries each year. See Jury Management Advisory Committee, Report and Recommendations to the Justices of the Supreme Judicial Court on the Resumption of Jury Trials in the Context of the COVID-19 Pandemic, at App. 9, p. 107 (July 31, 2020). It is fair to project that roughly this number of cases will have been added to the courts’ backlog as a result of the moratorium on jury trials for most of 2020 and early 2021. Although there are anecdotal reports of some decline in new indictments and civil filings, the backlog is almost certain to continue to grow in the coming months.  

On the civil side, this backlog means a longer wait for one’s day in court. On the criminal side, the prospect of continued delay is even more serious. With limitations on the availability of jury trials expected to extend well into 2021, requests to dismiss on speedy trial grounds will become more commonplace. This article examines both the constitutional basis for such requests and the implications of the pandemic for Rule 36 motions to dismiss. The article also attempts to shed light on how lawyers and judges should approach the analysis of these issues – particularly the constitutional limitations on delay imposed by a public health emergency.

The Constitutional Analysis

Criminal defendants have rights to a speedy trial under both the United States and Massachusetts Constitutions. See Barker v. Wingo, 407 U.S. 514 (1972); Commonwealth v. Dirico, 480 Mass. 491 (2018). Under the federal Constitution, the Sixth and Fourteenth Amendments guarantee the right to a speedy trial. See Barker, 407 U.S. at 515. In Massachusetts, Article 11 similarly and independently protects that same right as a matter of state constitutional law. See Dirico, 480 Mass. at 505, citing Commonwealth v. Butler, 464 Mass. 706, 709 n.5 (2013); Commonwealth v. Gilbert, 366 Mass. 18, 22 (1974). In applying Article 11, Massachusetts courts look to federal precedent interpreting the Sixth Amendment “because the analysis is analogous.” Dirico, 480 Mass. at 505.

Under both the federal and Massachusetts Constitutions, a defendant seeking dismissal for violation of the speedy trial right must show initially “that the interval between accusation and trial has crossed the threshold dividing ordinary from ‘presumptively prejudicial delay.” Dirico, 480 Mass. at 505. This burden, however, “is relatively modest.” Dirico, 480 Mass. at 506. Massachusetts “courts have generally found post accusation delay ‘presumptively prejudicial’ at least as it approaches one year.” Dirico, 480 Mass. at 506, quoting Doggett v. United States, 505 U.S. 647, 652 n.1 (1992).

Upon a finding of presumptively prejudicial delay, both federal and Massachusetts courts then apply Barker’s familiar four-part test. This requires the court to consider: “the length of the delay, the reason for the delay, the defendant’s assertion of his right to a speedy trial, and prejudice to the defendant.” Dirico, 480 Mass. at 506, citing Barker, 407 U.S. at 530. Although courts will look to the four-part Barker analysis to resolve speedy trial claims, its application to the extraordinary situation of a global public health emergency raises novel issues.

In calculating the length of the delay, the first Barker factor, courts begin with the date the complaint was first lodged against the defendant. The pandemic is almost certain to add well over a year to the wait for trial for those defendants arrested before its onset. For those arrested during the pandemic, it will add delay of as much as a year or even more.  

The second Barker factor, which looks to the reason for the delay, involves an analysis of the government’s role in creating it. See Dirico, 480 Mass. at 506. Generally, the greater the fault attributed to the government, the more heavily that factor weighs in favor of dismissal. See Dirico, 480 Mass. at 406, citing Butler, 464 Mass. at 716; Doggett, 505 U.S. at 657. The most common application of the second Barker factor is to cases in which the prosecution is responsible for the delay, which is not the case here. Massachusetts courts have not yet had  occasion to apply the Barker analysis to emergency situations. However, two federal courts that have analyzed delays due to public emergencies have held that delays of three and seven weeks resulting from a volcanic eruption and the September 11, 2001 attacks in New York, respectively, were excluded from the calculation of elapsed time under the federal Speedy Trial Act, 18 U.S.C. § 3161(h)(8)(A). Each of these cases was limited to an application of the Speedy Trial Act, so neither involved application of the Barker analysis. Moreover, each involved a relatively modest delay caused by a localized emergency. The delay attributable to the COVID-19 pandemic, by contrast, will be much longer than the delay in either of these cases and will be experienced throughout the Commonwealth and, to varying degrees, across the country.

In the current situation, in which jury trials have been prohibited in the Commonwealth by order of the Supreme Judicial Court since March 16, 2020, the prosecution is not responsible for delay. Through various orders, the SJC has suspended jury trials because of the health risks they pose to participants. The unavailability of jury trials is thus at least arguably the result of government action. See State v. Labrecque, ___ A.3d___, 2020 WL 5268718 (Vt. Sep. 3, 2020) (delay caused by COVID-19 pandemic attributed to government moratorium on jury trials, despite lack of prosecutorial responsibility). The SJC’s decisions to suspend jury trials may ultimately be deemed to have been entirely reasonable under the circumstances. Defendants, however, will no doubt point to states like Arizona, Georgia, Hawaii, Indiana, Kansas, Louisiana, Maine, Mississippi, North Dakota, Oregon, Utah, Vermont, Washington, West Virginia, and Wisconsin, where court systems have authorized and undertaken the resumption of jury trials under certain circumstances. See https://www.justia.com/covid-19/50-state-covid-19-resources/court-operations-during-covid-19-50-state-resources/.

Although it is not known to the authors how many jury trials have been conducted in any of these states, how safely they have been carried out, or how each state is measuring safety, defendants in Massachusetts can be expected to argue that the Commonwealth’s more conservative approach is a form of state action that unreasonably deprived them of their due process rights. At least one federal district court has relied on a version of this argument in a habeas corpus petition to order that the state court set a prompt trial date or face dismissal. See Kurtenbach v. Howell, 2020 WL 7695578 (D.S.D. Dec. 28, 2020). In that case, the Court (Kornmann, J.) remarked that “[t]here is no pandemic exception to the Constitution.” Kurtenbach, 2020 WL 7695578 at *5, quoting Carson v. Simon, 978 F.3d 1051, 1060 (8th Cir. 2020). It seems reasonable to forecast that the Supreme Judicial Court will rule that its orders suspending jury trials were necessary in light of the public health emergency, but this is by no means certain. Perhaps equally uncertain is the resolution of this question by federal courts, which may ultimately be asked to review the SJC’s actions.

The third Barker factor is the defendant’s assertion of his speedy trial right. Although this necessarily entails a fact-specific inquiry, defendants can be expected to argue – not without basis – that an assertion of the speedy trial right in a period when jury trials are suspended is the quintessential exercise in futility. That the Supreme Judicial Court might accept such an argument, however, says little about how it will resolve the issue. Just as a criminal defendant  should perhaps not be expected to assert a right futilely, the prosecution cannot be faulted for not proceeding with a trial that by order of the SJC cannot be conducted. This balance of blamelessness merely underscores the novelty of applying the Barker analysis in a time of unprecedented suspension of jury trials.

In evaluating the fourth Barker factor – the extent to which a defendant has been prejudiced by the delay – courts must consider the interests protected by the speedy trial right. See Dirico, 480 Mass. at 507, quoting Barker, 407 U.S. at 532. These are to minimize “oppressive pretrial detention,” the anxiety of the accused, and prejudice to the defense. Dirico, 480 Mass. at 507. The defendant bears the burden of establishing prejudice. Dirico, 480 Mass. at 505. The question of prejudice is likely to be the one on which most speedy trial motions brought to address pandemic-related delay will turn. That is because the length of delay alone rarely leads to dismissal. See infra. This is particularly so when the delay is caused by a global public health emergency. That said, and as always, if a defendant can show that the delay has compromised the defense’s ability to contest the Commonwealth’s evidence, the fourth Barker factor could well justify dismissal.

A defendant who has been unable to post bail, or has been held without bail based on a finding of dangerousness under G. L. c. 276, § 58A, certainly has a basis to argue that prejudice has resulted from the delay of the trial. The argument would be especially powerful under Dirico’s “oppressive pretrial detention” prong if the prosecution’s case has weakened over time, or if the length of pretrial detention approaches the length of the sentence that the defendant likely would receive if convicted.      

In dicta in its June 20, 2020, decision in Commonwealth v. Lougee, 485 Mass. 70, 84 (2020), the Supreme Judicial Court acknowledged the looming due process issue presented by suspending jury trials. The Lougee Court observed that the delay caused by the pandemic and the Court’s orders responding to it had “yet to approach the length of delay that would trigger a due process analysis.” Left unanswered, however, is how long a delay would amount to a due process violation. Unsurprisingly, there is no case law that analyzes the issue in the context of a protracted public health emergency. And the reported cases analyzing the requirements of procedural and substantive due process provide the courts with only the most general guidance.

Substantive due process forbids the government from acting in ways that “shock[] the conscience” or interfere with rights “implicit in the concept of ordered liberty.” United States v. Salerno, 481 U.S. 739, 746 (1987). The standard of review applied by a reviewing court under substantive due process analysis varies depending on the nature of the right at stake. See Aime v. Commonwealth, 414 Mass. 667, 673 (1993), citing Salerno, 481 U.S. at 748-51. With respect to “fundamental” rights – and surely that would include the right to a speedy trial – courts “must examine carefully the importance of the governmental interests advanced and the extent to which they are served” by the challenged governmental order or regulation.  Id.  Courts typically will uphold those orders or statutes that are “narrowly tailored to further a legitimate and compelling governmental interest.’” Id.    

Thus, courts are likely to analyze a state moratorium on jury trials as a speedy trial issue, the outer limits of which are set by substantive due process doctrine. That is, the United States and Massachusetts constitutions surely will not tolerate a Barker analysis producing a result that “shocks the conscience.” It is conceivable, therefore, that a pandemic could last long enough – years, for example – that the delay itself could constitute prejudice, even if individual defendants could not establish prejudice under the more conventional analysis of Barker’s fourth prong.

Stating this proposition, of course, does not answer the central question of how long a pandemic-necessitated delay the United States and Massachusetts constitutions will tolerate. The analysis merely frames the question. There are not yet any reported Massachusetts trial court decisions addressing the application of either the Barker or general due process analysis to trial delays caused by the pandemic. At the time of publication, several federal district courts had been presented with speedy trial challenges based, at least in part, on delay caused by the COVID-19 pandemic. See, e.g., United States v. Tapp, 2020 WL 6483141 (E.D. LA November 4, 2020); United States v. Woolard, 2020 WL 6469952 (W.D. WA November 3, 2020); United States v. Zhukov, 2020 WL 6302298 (E.D.N.Y. October 27, 2020). None, however, has dismissed a case on speedy trial grounds related to the pandemic. Cf. United States v. Smith, 460 F. Supp. 3d 981, 984 (E.D. Cal. 2020) (“Almost every court faced with the question of whether general COVID-19 considerations justify an ends-of-justice continuance and exclusion of time has arrived at the same answer: yes.”). But cf. United States v. McCullough, 2020 WL 6689353 (W.D. Tenn. November 12, 2020) (travel restrictions imposed by pandemic do not justify prosecution’s request for delay). Because there is no closely analogous case law, courts will be inclined to turn to conventional speedy trial precedent, which, unfortunately, provides only loose analogies to the current public health emergency.

A review of Massachusetts speedy trial cases reveal none in which the length of the delay alone – without prosecutorial fault – has resulted in dismissal. Thus, in Commonwealth v. Butler, 464 Mass. 706 (2013), for example, the Supreme Judicial Court held that a delay of twelve years between the issuance of a district court complaint in 1991 and the defendant’s eventual trial on a rape charge in 2003 did not require dismissal, even though the Commonwealth’s negligence factored into the delay. Similarly, in Commonwealth v. Wallace, 472 Mass. 56 (2015), the SJC considered a delay of nine years between charge and trial in the case of two co-defendants. The Court concluded that the delay did not warrant dismissal in the case of the co-defendant who had fled to avoid prosecution, but did warrant dismissal of the case against the co-defendant who was held in federal custody for seven years before prosecutors moved to rendite him for trial. These decisions suggest that, because two of the Barker factors – the  cause(s) of the delay and the defendant’s assertion of his speedy trial rights – focus on the conduct of the parties, the mere fact of even protracted delay, without more, is unlikely to trigger dismissal.

Even if extended delay does not result in a due process violation and resulting dismissal, however, it has and will continue to affect the bail status of defendants held awaiting trial. On the one hand, the Supreme Judicial Court has made clear that the court must take into account the risks posed by COVID-19 if the bail determination could result in the defendant’s detention. See CPCS v. Trial Court, 484 Mass. 431, 435 (2020) (COVID risk constitutes changed circumstance for purposes of bail review); Christie v. Commonwealth, 484 Mass. 397, 401 (2020) (error for trial judge not to reconsider motion for stay of sentence in light of pandemic). Cf. Commonwealth v. Nash, 486  Mass. 394, 406 (2020) (“Our objective in Christie was to reduce temporarily the prison and jail populations, in a safe and responsible manner, through the judicious use of stays of execution of sentences pending appeal.”). On the other hand, the SJC has actually extended the period during which a defendant can be held without bail based on dangerousness. Although  G.L. c 276, § 58A provides that a defendant cannot be detained without bail for longer than 180 days, the SJC has held that the delay caused by the moratorium on jury trials is excluded from the calculation of that time period. See Lougee, 485 Mass. at 84-85. What is clear, however, is that recent SJC precedent establishes that a court’s bail decision during the COVID-19 pandemic should be made with special care, particularly given the heightened risk of contagion in the correctional context and the likelihood that trial for that defendant will be an unusually long way off.  

The Rule 36 Analysis

Primarily a rule of case management, Mass. R. Crim. P. 36 overlaps with but is “wholly separate” from constitutional speedy trial analysis. Dirico, 480 Mass. at 504, quoting Commonwealth v. Lauria, 411 Mass. 63, 67 (1991). Rule 36 dictates dismissal as a matter of  presumption if the defendant is not tried within one year of arraignment. Dirico, 480 Mass at.497. The rule, however, excludes delay that results from a number of specified occurrences. See Mass. R. Crim. P. 36(b)(2)(A)-(H). The Commonwealth bears the burden of establishing that the delay in question is excluded from the Rule 36 calculation. Dirico, 480 Mass. at 497, citing Commonwealth v. Spaulding, 411 Mass. 503, 504 (1991). Among the express exclusions in Rule 36 are periods of time about which the court finds that “the ends of justice served by granting of the continuance outweigh the best interests of the public and the defendant in a speedy trial.” Mass. R. Crim. P. 36(b)(2)(F).

The Supreme Judicial Court has also discerned in Mass. R. Crim. P. 36 a common-law basis for exclusion. Even if delay is not expressly excluded by the provisions of Rule 36(b)(2), it still may be excluded from the Rule 36 calculation if the defendant “acquiesced in, was responsible for, or benefitted from the delay . . . .” Dirico, 480 Mass. at 498-499. This basis for exclusion is rooted in a defendant’s “obligation . . . to ‘press their case through the criminal justice system.’” Commonwealth v. Graham, 480 Mass. 516, 524 (2018), quoting Lauria, 411 Mass. at 68. The precise limitations of this doctrine remain both fact-specific and surprisingly complex.

That said, certain principles have emerged from recent cases. First – wholly apart from the express exclusions in Rule 36(b)(2)(F) – if “a defendant agrees for the first time to schedule a previously unscheduled event, there is no ‘continuance’ or ‘delay’ that can be excluded under rule 36.” Graham, 480 Mass. at 533. Second, “unanticipated events that the parties . . . agree to work around” are excluded from the Rule 36 computation. Graham, 480 Mass. at 533.

In its March 13, 2020 order, the Supreme Judicial Court propounded a statewide finding under Rule 36(b)(2)(F) that the indefinite postponement of jury trials “serve[s] the ends of justice and outweigh[s] the best interests of the  public and the criminal defendant in a speedy trial . . . .” See Lougee, 485 Mass. at 72 (SJC’s statewide order constitutes finding under Rule 36(b)(2)(F)). This appears to be the first time that the SJC has made a finding – under either Rule 36 or constitutional principles – applicable to all criminal cases pending in the Commonwealth. That it was the SJC that entered the finding in the context of a global pandemic, however, makes it unlikely that a subsequent SJC would invalidate it, at least as an interpretation of Rule 36. In this context – unlike that of the speedy trial analysis – federal courts are not likely to be called upon to review the SJC’s interpretation of a Massachusetts rule of criminal procedure.

Conclusion

A more prolonged suspension of the jury-trial right in the Commonwealth will eventually trigger a due process analysis. That would require courts to determine at what point continued delay of an individual jury trial either prejudices the defendant – under the Barker analysis – or “shocks the conscience,” as prohibited by substantive due process. The COVID-19 pandemic is a nearly unprecedented public health emergency, and one about which no one alive today can draw on experience. The constitutional speedy trial analysis is familiar and predictable; its application to the extraordinary situation that currently prevails is anything but.

David A. Deakin is an associate justice of the Massachusetts Superior Court. Before taking the bench in 2019, Judge Deakin was deputy chief and acting chief of the Criminal Bureau in the Massachusetts Attorney General’s Office. 

Janet L. Sanders is a Superior Court Justice. Before her appointment in 2001, she  worked as a criminal defense lawyer and then served on the district court beginning in 1995.  


Chief Justice Gants and the Power of Concurrence

by Tad Heuer

Legal Analysis

Judges are often remembered for either their landmark opinions or their incisive dissents, and Chief Justice Ralph Gants wrote both. But over his twelve terms on the Supreme Judicial Court, he wielded adroitly a third option, more frequently than any of his fellow justices. On forty-three occasions — first as an Associate Justice and then as Chief — Justice Gants authored a concurrence.

Concurrences are a legal curiosity. Unlike a dissent, where a judge explains why his colleagues got it wrong, a concurring judge believes the opposite: that his colleagues got it right. Moreover, with each SJC justice writing roughly the same number of majority decisions each term, a concurring justice is voluntarily taking on additional and avoidable work. Yet it is precisely because concurrences are arguably unnecessary that they are so valuable. Concurrences can signal the potential limits of the majority opinion, indicate whether the majority reached the right result but for the wrong reason, or warn where a statute — while clear — creates an unintended result. And when used wisely, and unencumbered by the formal strictures of a majority opinion, a concurrence can illuminate a judge’s perspective on how the law could be more fair and more just.

With a nod to his beloved Boston Red Sox, Chief Justice Gants’ penchant for concurrences is best illustrated by turning to the SJC’s own box score. Chief Justice Gants served with fourteen other justices during his time on the Court and authored 260 opinions, 17 dissents, and 43 concurrences (including six instances when he added further nuance by concurring in part and dissenting in part). While Chief Justice Gants dissented on average about as frequently as his fellow justices (8% of his decisional writings, versus an average of 5% for his colleagues), 13% of his decisional writings were concurrences, compared with only 5% of those of his colleagues. With an average of nearly four concurrences per term, Chief Justice Gants nearly doubled the average of his next closest colleague, while more than tripling the one-concurrence-per-justice-per-term average of his colleagues generally. In raw numbers, he wrote 17 more concurrences than his next-closest colleague, Justice Robert Cordy, who served for four more years than Chief Justice Gants. Indeed, as of the time of his passing he had penned more concurrences than eight of his 14 colleagues combined.

While Chief Justice Gants concurred at least once in every year on the Court, his concurrences became more frequent in recent years with six each in 2017 and 2018, and eight in 2020. Yet he had a knack for attracting company. Of his 43 concurrences, only eleven were on his own: Thirteen brought along one other justice, sixteen brought along two other justices, and one even brought along three others. With 30 concurrences in criminal cases and 13 in civil, his topics ranged widely from homicide instructions and trial procedure to child custody and spendthrift trusts. But examining why he concurred so frequently provides a window into the jurist Chief Justice Gants was.

He used concurrences to point out where the Legislature may wish to revise statutes that compelled counterintuitive results that he perceived as unintentional. In a pair of cases involving the state wiretap statute, Commonwealth v. Tavares, 459 Mass. 289 (2011) and Commonwealth v. Burgos, 470 Mass. 133 (2014), he discussed the problematic practical consequences arising from the statutory requirement of a “connection with organized crime” as a prerequisite for its use, noting:

electronic surveillance is unavailable to investigate and prosecute the hundreds of shootings and killings committed by street gangs in Massachusetts, which are among the most difficult crimes to solve and prosecute using more traditional means of investigation.

“If the Legislature wishes to avoid this result,” he suggested, “it should amend [the statute] to delete those words.” Tavares at 305; Burgos at 149. Similarly, in Commonwealth v. LeBlanc, 475 Mass. 820 (2016), Chief Justice Gants used his concurrence to encourage the Legislature to harmonize contradictory statutory provisions (about when a driver needed to remain at the scene after causing an accident), while in Commonwealth v. Almonor, 482 Mass. 35 (2019) he wrote separately to “underscore the need for the Legislature to give careful consideration to amending G. L. c. 276, § 2B, to permit warrants to be applied for and approved remotely through reliable electronic means.” Id. at 69.

He used concurrences to signal the direction he felt the common law should go. This approach was most prominent in his four-member concurrence in Commonwealth v. Brown, 477 Mass. 805 (2017). In that case, the Court unanimously agreed that the felony-murder rule (permitting a conviction of murder in the first degree for the commission of an underlying violent felony resulting in a death) was constitutional. Chief Justice Gants nonetheless saw the opportunity through concurrence to narrow prospectively the scope of the rule to require actual – not constructive – malice inferred from the underlying felony:

When our experience with the common law of felony-murder liability demonstrates that it can yield a verdict of murder in the first degree that is not consonant with justice, and where we recognize that it was derived from legal principles we no longer accept and contravenes two fundamental principles of our criminal jurisprudence, we must revise that common law so that it accords with those fundamental principles and yields verdicts that are just and fair in light of the defendant’s criminal conduct.

Id. at 836.

This attention to ensuring that the development of the common law reflect the practical reality of the contemporary world pervaded other concurrences as well. In Commonwealth v. Berry, 466 Mass. 763 (2014), then-Justice Gants concurred to identify “an apparent inconsistency in our common law of homicide that we should confront when the issue next arises, i.e., whether a defendant’s state of mind must be considered in determining whether a murder is committed with extreme atrocity or cruelty.” Id. at 778. And in Miller v. Miller, 478 Mass. 642 (2018), involving a contentious child custody dispute, Chief Justice Gants concurred to argue that in future, the Court should consider discarding what he termed the “artificially binary decision-making framework” cobbled together from prior cases, and establish a “single, uniform standard — the best interests of the child — to be applied to all [custody] removal cases,” id. at 659.  He expressed concern that the existing “formalistic approach” could have “serious consequences for the parties involved.” Id. at 662.

And in a technical mortgage foreclosure case, U.S. Bank National Association v. Schumacher, 467 Mass. 421 (2014), then-Justice Gants’ concurrence was arguably more important than the majority opinion. The Schumacher Court held that because the statutory pre-foreclosure requirement (notice and a cure period) was not part of the exercise of the power of sale and foreclosure, failure to comply with the statute could not be raised as a defense in a post-foreclosure eviction action. Justice Gants agreed that the statute controlled the facts of the case, but wrote separately to express his concern about the “practical consequences of this opinion.” Id. at 431. His concurrence laid out his view of when it was appropriate to raise the statute as a defense: if the failure to comply with the statute “rendered the foreclosure so fundamentally unfair that [the defendant] is entitled to affirmative relief, specifically the setting aside of the foreclosure sale.” Id. at 433. This “fundamental unfairness” standard is now applied routinely in post-foreclosure actions.

He used concurrences to provide guidance to the lower courts. Sometimes his concurrences signaled that lower courts should be cautious about applying a majority decision too broadly. For example, he concurred in Flagg v. AliMed, Inc., 466 Mass. 23 (2013), primarily to “emphasize the limited scope of [the majority] holding, because I fear that ‘associational discrimination’ might otherwise be interpreted more broadly than the court’s opinion intends.” Id. at 39. Similarly, he concurred in Commonwealth v. Lopez, 458 Mass. 383 (2010), to clarify the “distinction between a search of a home and entry into a home, which, although it does not affect the outcome of this case, may have bearing on the validity of consent in other search cases.” Id. at 399.

In other instances, his concurrences provided frameworks for how lower courts might evaluate rapidly-changing areas of the law, particularly involving technology. These ranged from offering detailed thoughts on “how electronic automatic license plate reader data could be used by law enforcement consistent with constitutional rights to a reasonable expectation of privacy” (Commonwealth v. McCarthy, 484 Mass. 493, 512-13 (2020)), to clarifying his view that the law provides no “safe harbor to conduct a search incident to arrest of text messages or electronic mail messages” found on a cell phone (Commonwealth v. Phifer, 463 Mass. 790, 799 (2012)). Chief Justice Gants used concurrences to encourage his former trial court colleagues — faced with applying existing laws to new and novel factual scenarios — to think thoughtfully about how the Court might view those efforts on appeal.

He used concurrences to give voice to both the challenges and humanity inherent in the complex work of getting justice right. In Schumacher, he began his concurrence by acknowledging that “many mortgage borrowers who will claim such violations will not have the benefit of legal representation, and that our jurisprudence in this area of law is difficult for even attorneys to understand.” 467 Mass. at 431. In Commonwealth v. Williams, 481 Mass. 443 (2019), concurring in a case involving race and jury selection, Chief Justice Gants admitted that from his own experience as a trial judge “there are times, with the benefit of additional thought and the wisdom of hindsight, in which a judge will recognize that a discussion with a juror could have been handled more artfully.” Id. at 458. And he concurred to urge the Court to ensure that its decisions would be understood by the public as being consonant with justice. As he wrote in his concurrence in Commonwealth v. Johnson, 461 Mass. 1 (2009), “[w]e neither ensure that we do justice in a case of murder in the first degree nor ensure the public’s confidence that justice is done where we fail to address on the merits an issue that was never fairly considered because the underlying facts were mistakenly presented by the court on direct appeal.” Id. at 9.

Perhaps most importantly, he used concurrences to highlight what he saw as unfairness. In Commonwealth v. Baez, 480 Mass. 328 (2018), he concurred “to encourage the Legislature to consider the wisdom and fairness of the mandatory minimum aspect of [certain] enhanced sentences, especially where the predicate offenses were committed when the defendant was a juvenile.” Id. at 332. In Deal v. Massachusetts Parole Board, 484 Mass. 457 (2020), he used his concurrence to levy forceful criticism of the failure of the Parole Board to provide “meaningful individualized consideration” to the “distinctive attributes of youth offenders” when making parole decisions. While concurring in the denial of parole because such guidance did not exist at the time of Deal’s hearing, he warned that in future, “we would expect meaningful individualized findings that are far less conclusory and perfunctory than here.” Id. at 470. While only a concurrence, it signaled a disapproval for the Parole Board to ignore at its peril. And it was not only litigants whom Chief Justice Gants sought to protect from unfairness. In Commonwealth v. Leiva, 484 Mass. 766 (2020), he agreed with the Court’s revision of the protocols governing the conduct of defense counsel when their clients intend to testify falsely, but took issue with the majority’s “assumption . . . that defense attorneys will not abide by their ethical obligations to the court when hard decisions have to be made. . . .” He concurred to emphasize that such an assumption “is unfair to the defense bar.” Id. at 798.

Chief Justice Gants concurred up to the very end. Indeed, his last concurrence came in Commonwealth v. Long, 485 Mass. 711 (2020), released just days after his passing. Long addressed the charged issue of racial profiling in traffic stops, and although unanimous, generated multiple concurring opinions. Chief Justice Gants used his four-paragraph concurrence in Long to do three different things. First, he wrote as a justice, to emphasize that the motive of a law enforcement officer matters, and to reiterate that an officer cannot conduct an “inventory” search as a pretext for a more invasive “investigatory” search. Id. at 736. In so doing, he signaled that he would be watching closely in future cases for whether form was being exalted over substance. Second, he wrote as a colleague, explaining why he agreed in part with the more expansive concurring opinion of a colleague, but felt it unnecessary for the Court to reach certain additional constitutional questions identified therein. Id. And third, he wrote as the Chief Justice, in an effort to prevent intramural disagreements over the details from clouding the legal importance of the majority opinion in the eyes of the public: “[D]espite our jurisprudential differences reflected in the various opinions in this case, the court is unanimous in concluding that a motor vehicle stop that arises from racial profiling is unconstitutional . . . .” Id. This keen awareness of the subtle power of the concurrence—from the legal to the practical—demonstrates Chief Justice Gants’ acumen for the form at its finest.

In 1822, Thomas Jefferson complained in a letter to Supreme Court Justice William Johnson that the trend of the collective majority opinion disguised “whether every judge has taken the trouble of understanding the case, of investigating it minutely, and of forming an opinion for himself, instead of pinning it on another’s sleeve.” Chief Justice Gants was never at risk of such remonstration: his numerous concurrences reveal a justice who took the trouble to understand cases, who investigated cases minutely, and who took seriously his responsibility to offer the bench, bar, Legislature, and general public his own insights on how to do better justice.

Tad Heuer is a partner at Foley Hoag LLP, where his administrative law practice focuses on appellate litigation and on advising clients regarding complex federal, state, and local regulatory matters ranging from land use to energy.  He clerked for Supreme Judicial Court Chief Justice Margaret H. Marshall during the 2006-07 term, and is a member of the Boston Bar Journal Board of Editors.