Cantell v. Commissioner of Correction, Class Actions and the Mootness Doctrine

lyonsby Jeff Goldman

Case Focus

In Cantell v. Commissioner of Correction, 475 Mass. 745 (2016), four inmates appealed from the denial of their petition for class certification to seek a class-wide injunction limiting the use of “special management units” or “SMUs” in state prisons.  The Superior Court had denied a motion for class certification, and the Appeals Court had dismissed the plaintiffs’ appeal from the denial as moot because, “when the plaintiffs’ appeal was before that court, it was uncontested that none of the named plaintiffs was still confined in an SMU.”  475 Mass. at 752-53.

The SJC could have fixed the Appeals Court’s mootness error by relying on the established principle that on an appeal from the denial of class certification, the court determines mootness based on whether the claim was moot while before the trial court, regardless of whether the class representative’s claims became moot while the case was on appeal.  U.S. Parole Commission v. Geraghty, 445 U.S. 388, 404 (1980); see also Gonzales v. Commissioner of Correction, 407 Mass. 448, 452-53 (1990) (holding that where individual claims become moot prior to class certification motion, class claims are dismissed); 1 William B. Rubenstein, Newberg on Class Actions § 2:10 (5th ed. 2011).  In other words, as the U.S. Supreme Court held in a 1980 decision also involving claims by prisoners, the determination of mootness on appeal from a denial of class certification “relat[es] back” to the plaintiffs’ situation as it existed before the trial court.  Geraghty, 445 U.S. at 404.  Had the SJC applied Geraghty in Cantell, the outcome would have been the same but the Court’s decision much easier:  because “[a]t the time of the motion judge’s decision [on the motion for class certification], one of the named plaintiffs . . . remained in an SMU,” there was therefore no mootness problem.  Id.

However, none of the briefs in Cantell cited Geraghty, and the SJC resolved the mootness issue by relying entirely on Wolf v. Commissioner of Public Welfare, 367 Mass. 293, 297–298 (1975).  Discussing Wolf, the SJC reasoned that the case was:

not moot because the plaintiffs brought this case as a putative class action, and the class action allegations contained in the amended complaint remain operative until a judge has considered and rejected them on their merits.  See Wolf [] (adopting rule followed by number of Federal courts “that a class action is not mooted by the settlement or termination of the named plaintiff’s individual claim”).  This is particularly true where, as the plaintiffs argue is the case here, it is within the defendants’ power voluntarily to cease the allegedly wrongful conduct with respect to any named plaintiff by unilaterally deciding to release him from an SMU.  “If the underlying controversy continues, a court will not allow a defendant’s voluntary cessation of his allegedly wrongful conduct with respect to named plaintiffs to moot the case for the entire plaintiff class.”  [Wolf] at 299 []. The statement applies to the present case: the alleged wrongs set out in the amended complaint continue to affect the putative class of individuals who remain confined to SMUs.  In these circumstances, the plaintiffs’ appeal is not subject to dismissal on mootness grounds.

This formulation—“that a class action is not mooted by the settlement or termination of the named plaintiff’s individual claim”—is imprecise and will likely need to be revisited.  Although it works in the circumstances of Cantell, it cannot be said as a general matter “‘that a class action is not mooted by the settlement or termination of the named plaintiff’s individual claim.’”  In typical cases, and where no other mootness exception applies, if all individual claims become moot before the filing of a class certification motion, the entire case should be dismissed.  See, e.g., Gonzalez, 407 Mass. at 450; Cruz v. Farquharson, 252 F.3d 530, 533 (1st Cir. 2001) (“Despite the fact that a case is brought as a putative class action, it ordinarily must be dismissed as moot if no decision on class certification has occurred by the time that the individual claims of all named plaintiffs have been fully resolved.”).  Accordingly, it was probably a mistake for the SJC to state that “class action allegations . . . remain operative until a judge has considered and rejected them on their merits.”  Whether this is dicta or not, an attorney reasonably could use these statements to support an argument that the mootness of a class representative’s personal claims never matters under Massachusetts law, even if the personal claims were moot before filing a motion for class certification motion, or even that there is never a mootness defense in a class action.

This imprecise language notwithstanding, lower courts should not take Cantell as foreshadowing the SJC’s abrogation of mootness doctrine in class actions.  The SJC regularly invokes the mootness doctrine, particularly in cases of constitutional dimension.  Further, the SJC recognized in at least two cases after Wolf that the mootness doctrine applies to class claims.  In Flint v. Commissioner of Public Works, 412 Mass. 416, 419-20 (1992), the SJC rejected on mootness grounds class action claims for declaratory relief.  And in Gonzales, the SJC reversed the trial court’s certification of a class of prisoners (and directed that the case be dismissed unless resuscitated within thirty days by a new plaintiff) because the two named plaintiffs were no longer incarcerated at the time of the class certification motion.

Finally, Wolf does not actually support the parenthetical that the SJC used to summarize it in Cantell.  Wolf held merely that the named plaintiffs’ claims were not necessarily moot under the common law because they were “capable of repetition yet evading review.”  In fact, Wolf was a prototypical “capable of repetition yet evading review” case:  the claim was that the plaintiff and other members of the class were not receiving replacement public assistance checks within the required four-day period, but rather some days later.  It would have been virtually impossible for any claimant file a lawsuit and achieve class certification while any single check was outstanding.  (The “capable of repetition yet evading review” exception might also have applied in Cantell, although it was not necessary for the SJC to reach the question.)

In short, in its class action-mootness jurisprudence, as in most of its other opinions about justiciability, the SJC has taken a flexible approach, deciding some technically-expired issues on their merits because there are sound, common-law reasons to do so, while refusing to adjudicate stale issues when no traditional exception to mootness doctrine applies.  When the next opportunity arises for the SJC to apply the mootness doctrine in a class action, the Court should reiterate its past, sound approach and reject any attempt to read Cantell as requiring a categorical approach to mootness in class cases.

Jeff Goldman is of counsel at Morgan, Lewis & Bockius, LLP.  His practice centers on securities litigation and regulatory enforcement defense.

Fasten Your Seatbelt: The SJC Revises the Standard for Anti-SLAPP Motions

lyonsby Richard J. Yurko

Legal Analysis

In Blanchard v. Steward Carney Hospital, 477 Mass. 141 (2017), a surprise decision rendered in May, the Supreme Judicial Court altered significantly its “well-established” test—reflected in over two decades of precedent—for how trial courts are to evaluate special motions to dismiss under the Massachusetts anti-SLAPP statute. Whether this decision, which creates a new way to defeat the anti-SLAPP special motion to dismiss, effectively guts the statute or is just a bump on the road to a better understanding of it, will be determined by years of decisions in cases that have yet to arise. However, no less of an authority than the Court of Appeals for the First Circuit has already observed that Blanchard “dramatically shifted” the law under the anti-SLAPP statute.[i]


The anti-SLAPP statute, G.L. c. 231, § 59H, was enacted in 1994 over the veto of Governor William Weld to protect citizens from “strategic litigation against public participation,” i.e. “SLAPP” lawsuits.  The immediate impetus for the statute was a long and expensive case against a group of Rehoboth residents who opposed a local real estate development. The legislature concluded that persons who were exercising their rights of petitioning and speech were being punished for doing so by litigation in which their petitioning was the basis for claims against them. Effectively, what the statute does is create a statutory qualified immunity from suit for non-sham petitioning activities and an expedited procedure for dismissing claims arising from such petitioning, typically before the expense of discovery. The broad statutory definitions evidence a broad prophylactic purpose.

The new statutory immunity was heir to a long line of federal cases protecting the First Amendment right to petition.[ii] What is different in the anti-SLAPP statute, and in similar statutes in other states, is the expedited dismissal procedure (supplanting the normal rules for dispositive motions) and the fact that it was a positive enactment by the legislature rather than a rule developed by judges over time. Perhaps for these two reasons, the statute has not always been a favorite of the courts.  See, e.g., Adams v. Whitman, 62 Mass. App. Ct. 850 (2005)(extensive dicta worrying that the anti-SLAPP statute needlessly eliminates litigation-based tort claims).  For twenty years, however, the Supreme Judicial Court sought to apply the statute as written—regardless of some of the justices’ apparent doubts concerning its scope—and often corrected trial courts and appellate panels that strayed too far from the words of the statute. E.g., Duracraft Corp. v. Holmes Products Corp., 427 Mass. 156, 163 (1998) (noting that legislature “ignored [the] potential uses [of the statute] in litigation far different from the typical SLAPP suit”); Town of Hanover v. New England Regional Council of Carpenters, 467 Mass. 587, 594 (2014) (reversing trial court’s denial of special motion to dismiss and concluding that granting the motion was in accord with the reasons underlying the anti-SLAPP statute’s enactment). No longer.

The Original Duracraft Test

Two decades ago in Duracraft, the Supreme Judicial Court announced what it would later call the “well-established” two-part test for deciding a special motion to dismiss under the statute. E.g., Benoit v. Frederickson, 454 Mass. 148, 152 (2009); Wenger v. Aceto, 451 Mass. 1, 5 (2008). First, the moving party who asserts that she is being sued based upon her petitioning activities (typically the defendant) must demonstrate that the claims against her have no substantial basis other than her petitioning activities. If she succeeds in doing so, then the burden shifts to the nonmoving party (typically the plaintiff) to show, in the words of the statute, that the defendant’s petitioning “was devoid of any reasonable factual support or any arguable basis in law and [that] the moving party’s acts caused actual injury to the responding party.” G.L. c. 231, § 59H. Essentially, this second step in the analysis places a high, but not insurmountable, burden on the plaintiff to show early on that the petitioning was an unsupportable sham. Because the burden in the second step of the analysis was indeed steep, many plaintiffs focused their defense to a special motion to dismiss on the first step in the analysis, i.e. whether the defendant had shown that the plaintiff’s claims were based solely on defendant’s petitioning.

There are several key points about the Duracraft framework. First, the test is objective, just as the test in the statute is objective—whether the claim is based on petitioning and whether the petitioning has, or does not have, “reasonable factual support.”[iii] 427 Mass. at 165. Second, the focus is not on the ultimate question of the validity of the plaintiff’s claim but rather on the non-sham nature of defendant’s petitioning, as befits an immunity. Id. Third, the decision on whether immunity exists is generally to be made at the start of the case, otherwise the benefits of qualified immunity are lost. Id. at 161; see also Pearson v. Callahan, 555 U.S. 223, 231-32 (2009) (stressing importance of resolving immunity questions at earliest possible stage in litigation).

The Subjective Blanchard Addition

In Blanchard, the Court left the prior Duracraft framework intact but added an alternative way to defeat a special motion to dismiss. Rather than scale the high peak of showing the petitioning was a sham under the second part of the Duracraft test, plaintiffs can now convince a trial court judge that their “primary” motivation for each claim “was not to chill the special movant’s legitimate petitioning activities.” To make this alternative showing, “the nonmoving party must establish, such that the motion judge may conclude with fair assurance, that its primary motivating goal in bringing its claim, viewed in its entirety, was not to interfere with and burden defendants’ petition rights, but to seek damages for the personal harm to it from the defendants’ alleged legally transgressive acts.” Blanchard, 477 Mass. at 160 (internal quotations and citations omitted).

This “motivation” standard finds no antecedent in the language of the statute itself which, as noted, focuses strictly on the merits of the petitioning activity. One might wonder what plaintiff will not now file an affidavit calmly assuring the trial court that burdening the defendant’s petitioning was the farthest thing from its mind? Would not the Rehoboth developer, beset by neighborhood opposition, have done just that? By grafting a subjective branch onto an otherwise objective test, the Court has opened a Pandora’s Box of unanswered questions like:

(a)  How does one prove or disprove, without discovery, the plaintiff’s “primary motivating goal”?

(b)  If one of the chief goals of the anti-SLAPP statute was the earliest possible termination of potential SLAPP suits before the time and expense of discovery, how can such discovery be avoided if the question now turns on the plaintiff’s “primary” motivation?

(c) How is a trial court, or for that matter a reviewing court, supposed to weigh an affidavit from a plaintiff swearing it does not seek to burden the defendant’s petitioning, against objective—but inconclusive—evidence to the contrary?


None of the parties in Blanchard argued for this shift. The Court did not request briefs from the parties or amici on a possible new test. Yet the Court altered two decades of its own jurisprudence on the subject. So, one has to wonder why the Court was moved to announce a new test.[iv]

The Court proffered one stated rationale for the new test.  It suggested that the Duracraft “framework,” which simply implemented the objective language of the statute, was much broader than the “fundamental statutory concern” of just eliminating SLAPP suits. 477 Mass. at 155. According to the Court, without the benefit of a citation to the statute, the statutory language sweeps more broadly than the legislative intent because “[i]t is only … the actual ‘SLAPP’ suit,” i.e. the “meritless claim[] targeting legitimate petitioning activity,” that “the Legislature intended to stop early in its tracks.”  Id. at 157.

This justification contradicts extensive Massachusetts precedent by purporting to create a clash between the intent of a statute and its words. As this very Court confirmed just three weeks later, Massachusetts courts are supposed to look for the statute’s intent in the words of the statute. “Where the language of the statute is clear and unambiguous, it is conclusive as to legislative intent.”  AIDS Support Group of Cape Cod, Inc. v. Town of Barnstable, 477 Mass. 296, 300 (June 14, 2017)(collecting cases). The words of the anti-SLAPP statute broadly defined petitioning activities, defined a qualified immunity for those activities, and crafted an objective test and an expedited procedure for enforcing that immunity.  That the immunity was prophylactic and certainly broader on its face than the one SLAPP suit that prompted the statute is evident from the face of the statute.  No linguistic gymnastics can derive a narrow “intent” standard from such broad language, especially where the statute was enacted over the veto of a governor who argued for a much more narrow law. See, e.g., David Kluft, The Scalpel or the Bludgeon? Twenty Years of Anti-SLAPP in Massachusetts, 58 B.B.J. 5 (2014). Had the Court followed its own precedent, which it reaffirmed three weeks later in the Barnstable case, it would not have set up a false clash between the words of the statute and its true “intent.”

The Court may have acted for two other reasons, implied but not fully stated in the decision. First, perhaps the Court might have thought the new test was necessary to keep the statute constitutional. Blanchard, 477 Mass. at 157-158. Second, the Court might have thought that a new test was necessary to save the plaintiff nurses’ claims, which didn’t seem to the Court to be SLAPP claims at all. Id. at 154. Neither of these intimated reasons is correct or, for that matter, particularly satisfying.

In Duracraft, the Court twenty years ago came up with the two-part test to resolve the supposed constitutional tension between preferring the defendant’s prior petitioning to the plaintiff’s new petitioning (where the latter seeks to hold the defendant liable for its petitioning). Duracraft, 427 Mass. at 167-68. Other than its flawed legislative “intent” argument, the Blanchard Court does not satisfactorily explain why the Duracraft balancing was now insufficient. Moreover, the Court never grappled with a fundamental flaw in the “constitutional balancing” argument to begin with. In enacting the anti-SLAPP statue, the legislature actually changed the substantive law of the Commonwealth,[v] as it is entitled to do. By creating what is, effectively, a qualified immunity from suit for non-sham petitioning, the legislature altered the substantive tort law of the Commonwealth. Upon such enactment, over a governor’s veto, the legislature effectively made claims based solely on meritorious petitioning activity no longer valid. There is no right, constitutional or otherwise, for a plaintiff to petition for redress under old, supplanted law. There is no tension between two types of valid petitioning, but rather only a tension between former law and new law—an easy “tension” to resolve.

Moreover, the Court could have held for the plaintiffs in Blanchard simply by applying Duracraft. In Duracraft, the defendant’s special motion to dismiss was deemed properly denied because the plaintiff’s claims were not based solely on the defendant’s petitioning. Duracraft, 427 Mass. at 168. There existed a written contract (a nondisclosure and confidentiality agreement) between plaintiff and defendant. Id. That contract was an additional, non-petitioning factor in the claims that arose from the defendant’s petitioning (his testimony at a deposition).

In Blanchard, the nurses sued their former employer, Steward Carney Hospital, for defamation allegedly arising from the employer’s comments to newspapers and in emails to all employees about the hospital’s termination of them. Although the claim may have been for defamation, it unquestionably arose from the employer-employee relationship and against an alleged termination “for cause” required by the nurses’ union contract with the employer. See 477 Mass. at 145 n.7 (noting the collective bargaining agreement and an arbitrator’s finding in favor of the nurses).  In short, what made the statements defamatory was the necessary suggestion that there had been cause for the nurses’ termination (or, in the words of Blanchard, the nurses’ “culpability,” 477 Mass. at 142), even though none of the nurses had been accused of any individual wrongdoing. The nurses’ defamation claim was not subject to the anti-SLAPP statute under a straightforward application of Duracraft because it rested, in part, on the employer-employee relationship and the union contract between the plaintiffs and defendant–just as the contract in Duracraft provided a substantial basis to the claim in addition to the petitioning. Thus, no new test was required for the Court to preserve the nurses’ defamation claim.

There is, of course, always the possibility that in subsequent decisions, the Supreme Judicial Court will return to an objective standard derived from the actual words of the anti-SLAPP statute. Often, decisions that seem like a wrong turn are, on further judicial reflection, treated as sui generis until a decade or two later when they are overruled. E.g., Lawrence v. Texas, 539 U.S. 558 (2003) (overruling Bowers v. Hardwick, 478 U.S. 168 (1986)).

But it is perhaps much more likely that, with a new judicially-created subjective defense to an anti-SLAPP special motion to dismiss, trial and appellate courts will spend a decade or more trying to reconcile the objective words of the statute with this new subjective judicial exception to a legislatively-crafted immunity. Given the judicial equivocation under the statute even before this latest decision, my prediction is that courts and judges will scatter in how loose or how narrow to construe this new judicially-created exception to legislatively-created immunity.  We are all in for a bumpy ride.

[i]  Steinmetz v. Coyle & Caron, Inc., 2017 U.S. App. LEXIS 11916 at *5 (1st Cir. June 29, 2017).  In Steinmetz, the First Circuit has certified another important anti-SLAPP question to the Supreme Judicial Court: is a paid consultant who is aiding a group in its petitioning covered by the statute?  The SJC’s occasional dicta on this question is internally inconsistent, and conflicts with its and the Massachusetts Appeals Court’s holdings in cases like Town of Hanover, infra.

[ii] See, e.g., BE&K Construction Co. v. NLRB, 536 U.S. 516, 524-25 (2002); Stern v. United States Gypsum, Inc., 547 F.2d 1329, 1342 (7th Cir. 1977), cert. denied, 434 U.S. 975 (1977); In re Primus, 436 U.S. 412, 426 (1978); United Trans. Union v. Michigan Bar, 401 U.S. 576, 585 (1971); United Mine Workers of America v. Ill. State Bar Ass’n, 389 U.S. 217, 222 (1967).

[iii] Indeed, the Supreme Judicial Court repeatedly eschewed any inquiry into defendant’s subjective motive for petitioning in the first part of the test. E.g., Benoit at 153; Office One at 122; Fabre v. Walton, 436 Mass. 517, 523-24 (2002).

[iv] The Blanchard case did have one significantly redeeming aspect.  It made short work, confined largely to a footnote, to the argument that somehow the anti-SLAPP statute’s special motion to dismiss was a violation of state or federal guaranties of the right to a jury trial in certain civil cases.  Blanchard, 477 Mass. at 158 n.24.

[v] In Steinmetz, the Court of Appeals for the First Circuit recognized that the Massachusetts anti-SLAPP statute (like the Maine anti-SLAPP statute, which was the subject of an earlier decision) was substantive law, not procedural law, and therefore ought to be applied in federal court under Erie RR v. Tompkins, 304 U.S. 64 (1938), in diversity cases.  Steinmetz, 2017 U.S. App. LEXIS 11916 at *2, 6 (citing Steinmetz v. Coyle & Caron, Inc., 2016 U.S. Dist. LEXIS 99631 at *6-8 (D. Mass. July 29, 2016).

Richard Yurko is the founding shareholder of Yurko, Salvesen & Remz, P.C. and has frequently authored briefs on behalf of amicus curiae parties on the anti-SLAPP statute.

Ferri v. Powell-Ferri: Expansion of Common Law “Trust Decanting” in Massachusetts

lyonsby Marc J. Bloostein

Case Focus

Trust decanting is a method by which the trustee of an irrevocable trust distributes trust assets into a new trust with revised terms. In Ferri v. Powell-Ferri, 476 Mass. 651 (2017), the Supreme Judicial Court (SJC) held that trust property in a Massachusetts irrevocable trust may be decanted into a new trust even if doing so would remove the trust assets from the beneficiary’s marital estate during his divorce. The SJC left open, however, whether decanting solely to deprive the beneficiary’s spouse of marital assets would be invalid as contrary to public policy. Id. at 664 (Gants, C.J., concurring). Although Ferri provides needed guidance to trustees on decanting, it leaves some unanswered questions that should be addressed by the legislature.

Common law decanting pursuant to language in an irrevocable trust was first recognized in Massachusetts in Morse v. Kraft, 466 Mass. 92 (2013). In Morse, the Court interpreted the trust instrument to authorize the trustees to distribute the trust assets to a new trust. Morse, 466 Mass. at 96-98. The key factors that allowed the trustees to decant assets into a new trust were: (1) the trustees’ unlimited discretion over distributions; (2) the trustees’ power to apply property for the benefit of a beneficiary; and (3) the broad grant of powers to the trustees. Id. at 98-99. To determine the settlors’ intent with respect to decanting, the SJC considered the post-execution affidavits of the settlor, draftsperson and disinterested trustee. Id. at 97. The Court declined to adopt a rule that any trustee with broad distribution power has the inherent power to decant, and instead opted for a case-by-case determination taking into account the terms of the trust instrument. See Ferri, 476 Mass. at 658 (citing Morse, 466 Mass. at 97).

In Ferri, the irrevocable trust at issue had been established for the benefit of Paul Ferri, Jr., the settlor’s son. Beginning at age 35, Paul could withdraw an increasing portion of the trust property; at the time of the decanting he could withdraw about 75% of the principal. Shortly after Paul’s wife filed for divorce in Connecticut, the trustees effectively eliminated Paul’s power to withdraw by decanting the assets into a new trust (without informing Paul or obtaining his consent). There is no question that the decanting was an effort by the trustees to remove the trust property from Paul’s marital estate. Id. at 653.

The Connecticut Supreme Court certified three questions to the SJC, including whether the trust instrument, which was governed by Massachusetts law, authorized the trustees to decant. 476 Mass. at 652. Unlike in Morse, the trustees were not waiting for court approval—they had already decanted (indeed, they had done so even before the SJC decided Morse).

The SJC  answered that the Ferri trust instrument allowed decanting. The trust instrument gave the trustees broad discretionary distribution powers “virtually identical to provisions in the Morse trust,” along with discretion even more expansive than that afforded in the Morse instrument. Consequently, the settlor’s intention to authorize decanting “would seem to follow necessarily.” Id. at 657-58. In particular, the SJC found that the trustees’ explicit authority to “segregate irrevocably [net income and principal] for later payment to” the beneficiary “indicate[d] the settlor’s intention to allow decanting.” Id. at 658. Thus, the SJC held that decanting was proper if done in the beneficiary’s best interest, unless and until all the trust assets had been withdrawn by the beneficiary. Id. at 662.

The Court rejected Powell-Ferri’s counter-argument that decanting was not allowed because it would render the beneficiary’s power to withdraw nugatory. First, all trust provisions must be read consistently, and if “withdrawable” property could not be decanted, then there would be no point to the trust after the age of full vesting with the beneficiary. Id. at 660. Second, because the trustees hold full legal title to all trust property, that property remains subject to their full stewardship and power, including the authority to decant. Id. at 660-61. Third, the two methods of distributing trust property—the beneficiary’s withdrawal power and the trustee’s power of distribution—are not mutually exclusive and decanting is consistent with the trustees’ power to irrevocably sequester for “’[s]o long as [the beneficiary] is living.’” Id. at 661. The SJC also found that the settlor’s affidavit could evidence the settlor’s intent if the settlor’s intent were otherwise ambiguous at the time he created the trust, and so long as the affidavit did not contradict or attempt to vary the terms of the trust. Id. at 663.

In short, although Ferri, like Morse, affirmed the importance of considering the trust instrument as a whole in determining the settlor’s intent regarding decanting, the Ferri Court nevertheless favored the trustees’ decanting power despite the trusts’ potentially conflicting withdrawal right provisions. In so deciding, the SJC expressly did not consider whether, in some circumstances, the existence of a withdrawal power might override trust provisions that allow decanting as a matter of public policy, as the Connecticut trial court had decided. See Ferri v. Powell-Ferri (SC 19317), 2013 Conn. Super. LEXIS 1938. As Chief Justice Gants pointed out in his concurrence, Ferri did not answer “whether Massachusetts law will permit trustees in Massachusetts to create a new spendthrift trust and decant to it all the assets from an existing non-spendthrift trust where the sole purpose of the transfer is to remove the trust’s assets form the marital assets that might be distributed to the beneficiary’s spouse in a divorce action.” 476 Mass. at 664 (Gants, C.J., concurring) (noting the Massachusetts prohibition against trusts that violate public policy in the Massachusetts Uniform Trust Code, G.L. c. 203E, § 404).

Notably, the Ferri Court also did not consider the ramifications of the provision of the Massachusetts Uniform Trust Code which provides that the holder of a non-lapsing withdrawal power under the terms of a trust (whether revocable or irrevocable) is treated as if he were the settlor of a revocable trust with respect to the property subject to the power, and the rights of the other beneficiaries are subject to his control and the duties of the trustee are owed exclusively to him. G.L. c. 203E, § 603. Nor did Ferri articulate any fiduciary limits to decanting, although there must be limits. See, e.g., Old Colony Trust Co. v. Silliman, 352 Mass. 6, 10 (1967) (“[E]ven very broad discretionary powers are to be exercised in accordance with fiduciary standards and with reasonable regard for usual fiduciary principles.”). Ferri raised additional questions by suggesting—without explaining—that a “duty to decant” may exist. 476 Mass. at 661.

Consequently, Ferri leaves trustees to ponder the limits of their power to decant, whether they might have a duty to decant and, if so, under what circumstances. The Massachusetts legislature should adopt a decanting statute to provide a path for trustees to decant with clear limits and safeguards.

Marc J. Bloostein is a partner in Ropes & Gray LLP’s private client group and focuses on estate planning and fiduciary law. He was co-chair of the BBA’s Trusts and Estates Section from 2011 to 2013, he played a key role in the 2012 enactment of the Massachusetts Uniform Trust Code, and he teaches a course on estate planning at Harvard Law School.

Disagreement Resolved: Unpreserved Public Trial Violation Does Not Require Automatic Reversal of a Criminal Conviction

lyonsby Bethany Stevens

Case Focus

The Supreme Court’s decision in Weaver v. Massachusetts, (16-240, June 22, 2017), did not resolve the broad disagreement for which it granted certiorari—whether a criminal defendant must demonstrate prejudice when a structural error is not preserved at trial. The Court, however, did resolve the disagreement in the context of trial counsel’s failure to object to the closure of the courtroom in violation of a defendant’s Sixth Amendment right to a public trial. Still, while the ultimate focus of Weaver is narrow, the resolution of this limited issue is very important in Massachusetts. This is because it was a fairly common practice by court officers, prior to 2007, to close courtrooms to the public due to space constraints during jury selection in criminal trials. As such, the finality of numerous Massachusetts convictions hinged on the Supreme Court’s decision.


It has been well settled that closure of the courtroom to the public in a criminal trial violates a defendant’s Sixth Amendment right to a public trial. It has also been well settled that the violation of the public trial right is considered a “structural” error. A structural error is a constitutional violation that, in the direct review context, generally entitles a defendant to automatic reversal without any inquiry into prejudice. It was not clear, however, whether the public trial right extended to jury selection. It also was not clear whether an unpreserved violation of the public trial right required the same remedy of automatic reversal.

In April of 2007, the First Circuit concluded that the public trial right does extend to jury selection and that the structural nature of this Sixth Amendment violation, even when unpreserved, required reversal of a criminal conviction without any showing of prejudice. Owens v. United States, 483 F.3d 48, 61-66 (1st Cir. 2007). The First Circuit’s decision called into question numerous Massachusetts State court convictions, including the murder conviction of Kentel Weaver, and prompted numerous motions for a new trial.  These convictions were further called into question when the Supreme Court issued its controversial per curium opinion in Presley v. Georgia, 558 U.S. 209, 213 (2010), which recognized explicitly for the first time that the Sixth Amendment right to a public trial does indeed extend to jury selection.

Weaver, who was charged with murdering a 15-year old boy, went to trial in 2006, prior to Owens and Presley. The jury was selected from jury pools of 60-100 potential jurors and the voir dire took place in a courtroom that accommodated seating for only 50-60 people.

The defendant’s mother and her minister were turned away from the courtroom by a court officer during the two days of the jury selection process in order to accommodate the large number of jurors. The defendant’s mother told trial counsel about her inability to get into the courtroom, but counsel did not bring it to the defendant’s attention or object; trial counsel believed that a courtroom closure during the jury selection process was constitutional. At trial, the jury convicted the defendant of first degree murder.

Five years later and following the First Circuit’s decision in Owens, Weaver filed a motion for a new trial seeking automatic reversal of his murder conviction because counsel failed to object to the closure of the courtroom during the jury selection process. While his motion was pending, the Supreme Judicial Court issued its decision in Commonwealth v. LaChance, 469 Mass. 854, 856 (2014), which, contrary to the First Circuit, held that a public trial violation, despite being a “structural” error, can be procedurally waived and, that an unpreserved claim of this sort will not entitle a defendant to automatic reversal; rather, a defendant is only entitled to a new trial upon a showing that trial counsel’s constitutionally deficient performance caused prejudice.

In Weaver, the Supreme Court concluded that the Supreme Judicial Court was correct. A public trial violation that is not preserved at trial and raised on direct appeal requires the defendant to establish prejudice as a result of the error. The Supreme Court broke new ground in its explanation that not all structural errors are the same. In so doing, the Court identified three broad rationales for why its decisions have deemed particular errors “structural.” The first rationale for deeming an error structural in nature is not because the constitutional right at issue protects the defendant from erroneous conviction, but instead because it protects some other important interest. For example, the denial of a defendant’s right to conduct his own defense is a structural error not because it provides a trial benefit to the defendant (in fact, it usually increases the likelihood of an unfavorable outcome), but because the Constitution requires that a defendant must be allowed to make his own choices about the proper way to protect his own liberty. A second rationale for deeming an error structural in nature is when the effects of the error are simply too hard to measure. This too can be seen in the denial of a defendant’s constitutional right to select his or her own attorney. Finally, some errors—like the denial of an attorney altogether or the failure to give a reasonable doubt instruction—are structural in nature because the error always results in fundamental unfairness to the defendant at trial. The Court concluded these different reasons for deeming an error structural require the use of a different standard when considering an ineffective assistance of counsel claim premised on the failure to object to the underlying error.

In evaluating the unpreserved structural error at issue in Weaver, the Court recognized that it cannot be that a public trial violation results in fundamental unfairness in every case because the courtroom can be closed over the defendant’s objection as long as the trial judge makes on the record findings pursuant to Waller v. Georgia, 467 U.S. 39, 48 (1984) to justify the closure. Rather, the violation of the public trial right is deemed structural error because it protects other important interests (namely, the public’s interest and constitutional right pursuant to the First Amendment), and because the effects of the error are simply too hard to measure. Moreover, analyzing an unpreserved error of this type differently than if the error had been preserved is justified where a contemporaneous objection would allow the trial judge to cure the violation by either opening the courtroom or explaining the reasons for the closure.

Thus, Weaver would only have been entitled to a new trial if he had been able to show that trial counsel’s failure to object to the closure of the courtroom during the jury selection process was both constitutionally deficient and that the deficiency resulted in prejudice. The Supreme Court went on to assume “that prejudice [could] be shown by a demonstration of fundamental unfairness,” but found that such fundamental unfairness was not shown in Weaver where the “trial was not conducted in a secret or remote place,” and “[t]he closure was limited to the jury voir dire; the courtroom remained open during the evidentiary phase of the trial; the closure decision apparently was made by court officers rather than the judge; there were many members of the venire who did not becomes jurors but who did observe the proceedings; and there was a record made of the proceedings that does not indicate any basis for concern, other than the closure itself.” Slip op. at 15. Additionally, there was no suggestion of any misconduct or impropriety of any of the jurors, the judge, or any other party. Finally, there was strong evidence of the defendant’s guilt and Weaver did not provide any “sense of a reasonable probability of a different outcome but for counsel’s failure to object.” Slip op. at 14. The defendant was not entitled to a new trial.

In a concurring opinion, Justice Thomas, joined by Justice Gorsuch, noted his willingness to reconsider the Supreme Court’s per curiam opinion in Presley. In a dissenting opinion, however, Justice Breyer, with whom Justice Kagan joined, expressed concern with ranking structural errors in terms of egregiousness and noted that the Court’s framework ignores the fact that the public trial right is indeed impossible to measure, which means that a defendant would never be able to meet that showing. Justice Breyer would not impose that impossible burden.

Responding in part to the dissent’s concern, in reaching its conclusion the majority opinion expressly recognized the corollary concern that “an ineffective assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, thus undermining the finality of jury verdicts. For this reason, the rules governing ineffective assistance claims must be applied with scrupulous care.” Slip op. at 14, internal quotation marks omitted. Applying these principles, Weaver concludes that an unpreserved Sixth Amendment public trial violation, in the context of jury selection procedures, does not result in automatic reversal of a defendant’s conviction. The Supreme Court’s decision thus resolves the framework that applies to the numerous Massachusetts convictions resulting from trials prior to the Owens and Presley decisions where the public had been excluded, without objection, from the jury selection process. The disagreement over this important issue has been settled.

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