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

StantonMalone

by Joseph Stanton & Patricia Campbell Malone

Heads Up

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Tax Cuts and Jobs Act of 2017: New Tax Law May Affect Charitable Giving

Bedingfield

by M. Bradford Bedingfield

Legal Analysis

In December 2017, Congress changed the tax laws in a number of ways that affect incentives for individuals and businesses to make charitable contributions.  Pub. L. 115-97 (Dec. 22, 2017) (Tax Cuts and Jobs Act of 2017) (“Act”). A variety of studies published since the new law was enacted predict an overall drop in 2018 charitable giving of as much as $22 billion (down about 5 percent from 2017 levels), and reports from the first two quarters of 2018 do appear to show a significant drop in charitable giving compared to 2017.  While many attribute this drop to the Act, opinions differ on whether the changes in legal tax incentives are truly driving, or will drive, changes in charitable giving patterns.  So what incentives changed beginning 2018, and how might those changes affect decisions whether and when to give to charity?

Changes in Tax Incentives

The Act increases certain incentives for charitable giving, and decreases others.  However, all of the changes described below – other than the reduction in the corporate income tax rate – are temporary, and, barring further action from Congress, will expire at the end of 2025.[1]

Decreased Incentives

Standard Deduction.  Most accounts of the impact of the Act focus on the increase in the standard deduction – from $6,300 to $12,000 for single filers and $12,600 to $24,000 for married and joint filers – which, along with the elimination or diminution of many itemized deductions, will convert many taxpayers from itemizers (those who itemize their deductions, and forego the standard deduction) to non-itemizers (those who instead claim the standard deduction, foregoing the ability to take itemized deductions).  This change matters because the income tax charitable deduction is an itemized deduction, and therefore provides no tax benefit whatsoever to those who claim the standard deduction.  Because each taxpayer chooses either to claim the standard deduction or to itemize, those who claim the standard deduction get no tax benefit from charitable contributions.  Studies have estimated that more than 20 million taxpayers will convert from itemized to non-itemized filers this year as a result of the Act.

While the increase in the standard deduction clearly will change tax incentives for charitable giving, it is unclear to what extent that change will affect actual charitable giving.  Many taxpayers make charitable gifts regardless of whether they will receive a tax benefit, and it is unclear the extent to which the value of that deduction actually encourages or discourages people from supporting causes that are dear to them.  The effect of this change may also vary dramatically depending on the state in which a person resides.  Taxpayers in states like Massachusetts are likely to have other significant itemized deductions, such as state and local taxes (despite the new $10,000 cap on those deductions) and mortgage interest (despite new limitations on deductibility of interest from certain home equity loans), meaning that they are more likely to remain as itemizers..

Furthermore, a strategy known as “bunching” can provide a work-around for the impact of the increase in the standard deduction on charitable tax incentives.  Imagine that a single taxpayer gives $10,000 to charity per year and has no other itemized deductions.  That $10,000 per year provides no tax benefit, as the donor is better off just taking the $12,000 standard deduction instead. But if the donor instead gives $50,000 once every five years (and nothing in other years), the donor can file as an itemizer in the “on” year (claiming a $50,000 itemized deduction), and as a non-itemizer in the “off” years (claiming the $12,000 standard deduction in each of those years).  While this “bunching” strategy will provide some incremental tax benefit for those who otherwise would fall below the standard deduction threshold, it will also create a certain “lumpiness” in charitable giving patterns, and the lumpiness is likely to be back-loaded if donors, choosing to wait to see more precisely how the Act’s changes will affect their personal returns, give their $50,000 in later years rather than in the first year after the new changes.

Lower Taxes.  Most taxpayers will find that they are paying taxes at a lower aggregate federal tax rate than before.  This reduction in tax rates generally makes the income tax charitable deduction less valuable – because there is less tax liability to offset – even for individuals who itemize their deductions.  (It also makes the charitable deduction less valuable for corporations, which now pay income tax at 21%, reduced from up to 39% before the Act).  Whether, and how much, this decrease in the “value” of the tax deduction will affect charitable giving is debatable.  In fact, some tout this as a change that may spur an increase in charitable giving, to the extent that lower taxes may increase cash available for charitable giving.

Estate Taxes.  Federal estate taxes have been virtually eliminated for all but a very small number of taxpayers, as the federal estate tax exemption amount has increased to over $11 million per person (or over $22 million per married couple).  Many fear that this will likewise reduce estate tax incentives to leave property to charity.  However, the extent to which changes in the estate tax will affect the disposition of donors’ assets on death is likewise open to debate.  The fact that donors are paying less in estate taxes might in fact increase charitable bequests, especially where donors (for non-tax reasons) choose to leave the residue of their estates to charity. Furthermore, because many states continue to have their own estate or inheritance taxes (especially in New England, the northern Midwest states, and the Pacific Northwest), donors in those states are less likely to change estate plans already optimized to minimize state estate taxes, many of which include charitable gifts as part of that optimization.

Ticket Rights.  One minor decrease in tax incentives (although a significant one for many college football fans) is that Congress has eliminated the partial charitable deduction previously available for gifts to colleges and universities in exchange for priority rights to buy season tickets.  In anticipation of this change, many colleges encouraged ticket holders to “pre-fund” their ticket-related contributions at the end of 2017.  Otherwise, it is unlikely that this change will have a significant impact on charitable giving as a whole – as a graduate of a large, Southern state university, I am quite certain that, for most college sports fans, the incentives of securing priority season ticket rights far outweigh any reduced tax incentives.

Increased Incentives

While the general consensus is that the net effect on tax incentives for charitable giving is negative, the Act provided some minor boosts to charitable tax incentives.

Elimination of Pease Limitations.  Prior to the Act, the so-called “Pease” limitations reduced certain itemized deductions, including certain charitable gifts, for high-income taxpayers, and thus potentially reduced the tax effectiveness of certain charitable gifts for those taxpayers.  The Pease limitations have been suspended under the Act, which may provide a modest boost in tax incentives.  On the other hand, it was never clear how much of an effect the Pease limitations actually had on charitable giving patterns, and so the effect of this change is likewise uncertain.

Increased AGI Limit for Cash Gifts.  The primary “boost” to tax incentives for charitable giving relates to the percentage of a donor’s adjusted gross income (AGI) that may be deducted each year.  Previously, donors could deduct up to 50% of their AGI for cash gifts to public charities (non-cash gifts, and gifts to so-called “private foundations,” are subject to less favorable AGI limits).  Gifts in excess of this AGI limit are not deductible in the year of the gift, but may be deducted in future years, for up to five years.

The Act increased the AGI limit for cash gifts to public charities from 50% to 60%, potentially allowing certain donors to enjoy higher income tax deductions more quickly.  However, because of the rather complicated way in which this increase was integrated into the existing tax code, the higher 60% AGI limit is available only when a donor is relying solely on gifts of cash to public charities, and not gifts of stock or other assets (or any gifts to private foundations), to make up that 60% amount.  Many donors who give that much of their annual income are likely to have low-basis stock or other property, and the tax benefits of giving low-basis stock (namely, avoiding capital gains tax on the stock’s appreciation) to public charities significantly outweighs the benefit of this increased AGI limitation.  In other words, on balance, most donors will still effectively be capped at the lower 50% of AGI limit.  Although it is too early to know for certain, it seems likely that very few taxpayers will see any practical benefit from this increase.[2]

Good or Bad for Charitable Giving?

It is too early to know whether the Act will result in more or less charitable giving.  Many popular strategies for saving taxes by making charitable gifts – for example, making gifts of appreciated property, or direct charitable IRA rollovers – remain effectively unchanged.  For many taxpayers, the effects of the Act may not become evident until they see their first tax returns in 2019, and it may not be until then that they start to consider changing their charitable giving strategies.  While it does appear that giving is down in 2018 (compared to 2017), this could be attributable to a number of things.  For example, 2017 was a record year for charitable giving, in part because many tax advisors urged donors to make large charitable gifts at the end of 2017, at least in part to offset the higher 2017 tax rates.  A corresponding drop in charitable giving in early 2018 might be a natural consequence of the fact that many taxpayers effectively pre-funded their anticipated 2018 contributions at the end of 2017.  Other taxpayers may be temporarily holding off on giving in anticipation of “bunching” contributions in later years, or may otherwise be delaying the timing of their gifts, even if they intend to maintain past levels of giving in the aggregate.

At the end of the day, it is likely that only a particular subset of donors who will be significantly affected by these changed tax incentives.  Donors who were non-itemizers before these changes are likely to remain so, and will see no meaningful change in tax incentives for charitable giving.  Conversely, donors who previously were itemizers and, because of significant other itemized deductions, will remain so, still have plenty of incentives to find tax-efficient ways to reduce the burden of income or estate taxes by making charitable gifts. Anecdotal discussions with charitable giving and estate planning professionals indicate no significant shifts in donor interest in long-term charitable giving, including planned giving, among filers already likely to itemize.  However, donors who are in that intermediate space between itemizing and not itemizing should take a close look at their particular tax profiles and consider “bunching” and other strategies to allow them to maximize the impact of their income tax charitable deductions over the long term under the Act.

[1] On September 28, 2018, the House of Representatives passed a series of bills, together dubbed “Tax Reform 2.0,” that would make these changes permanent, but as of this article, there appears to be no movement in the Senate in that regard.

[2] House Bill 6760, 115th Cong. (2017-2018) (Protecting Families and Small Business Tax Cuts Act of 2018), part of the “Tax Reform 2.0” initiative passed by the House on September 28, 2018, would expand the ability of taxpayers to take advantage of the higher AGI threshold – however, it is unclear whether the Senate intends to participate in “Tax Reform 2.0,” or whether this provision might make its way into some other bill with bicameral support.

Brad Bedingfield is counsel at Hemenway & Barnes LLP. Brad works extensively with nonprofit organizations, navigating tax, regulatory, and governance matters, guiding charities and other nonprofits through formation, reorganizations, mergers, affiliations, and dissolution, and advising on innovative use of charitable assets, including social impact bonds and other forms of impact investing.


Standing in the Wake of Rental Property Management Services v. Hatcher: Only the Owner or Lessor May Use Summary Process to Evict Tenants and Property Agents that File Such Actions Are Engaging in the Unauthorized Practice of Law

DAconley

by Lauren D. Song

Practice Tips

On May 15, 2018, the Supreme Judicial Court articulated a bright line rule strictly construing the summary process statute, G.L. c. 239, § 1 (“Statute”), to hold that “[o]nly a person entitled to the property as owner or lessor may bring an action to recover possession” against a tenant, and non-attorney property agents who sign and file summary process complaints on behalf of owners are “engag[ing] in the unauthorized practice of law.” Rental Property Management Services v. Hatcher, 479 Mass. 542, 547 (2018) (“Hatcher”). In rejecting the application of agency principles that would enlarge standing in summary process to property agents, the Court also admonished that the unauthorized practice of law by such agents “seriously undermines the fairness of summary process…, especially where the vast majority of tenants in such cases are self-represented.” Id. at 553-554, n. 11. This article discusses procedural considerations in determining summary process standing in the wake of Hatcher.

Determining Whether Standing Exists In Fact

Hatcher comes at a time when the majority of the nation’s 47.5 million residential rental units is no longer owned by “mom-and-pop” landlords personally known to the tenants but by institutional and corporate owners that often remain undisclosed to tenants. Such owners typically operate through property agents so tenants may not know that the party to whom they tender rent is not the owner of the property. Tenants also often are not privy to changes in the ownership interests—e.g., through foreclosures, dissolutions, mergers, acquisitions, bankruptcies, and even assignment of leases–that may affect who has standing to bring and maintain an eviction action against them. See Billings v. GTFM, LLC, 449 Mass. 281, 289-96 (2007) (standing must exist as of the commencement of the action and continue throughout the litigation). And as the Court highlighted in Hatcher, a “plaintiff’s lack of standing will not be apparent on the face of the [summary process] complaint,” because the form complaint promulgated under the Uniform Summary Process Rules (“USPR”) which govern summary process proceedings identifies all pleaders categorically as “PLAINTIFF/LANDLORD/OWNER.” 479 Mass. at 548. Notwithstanding challenges to determining whether plaintiff-standing exists in fact,” in fiscal year 2017 alone, 40,503 summary process cases were filed throughout Massachusetts in which over 90% of the tenants were self-represented.

Summary Process Standing Cannot Be Delegated to Agents

Hatcher rejects agent standing in summary process based on the well-established principle that “[s]ummary process is a purely statutory procedure and can be maintained only in the instances specifically provided for in the statute.” Id. at 546, quoting Cummings v. Wajda, 325 Mass. 242, 243 (1950); see also Buron v. Brown, 336 Mass. 734, 736 (1958) (“The purpose of [the Statute]  is to give possession to those whose possession has been invaded or who have a right to possession and are within a category defined therein.”). In actions against tenants, therefore, “it is essential that there should be proof of the relation of lessor and lessee, or of landlord and tenant, between the plaintiff and defendant.” Id., quoting Ratner v. Hogan, 251 Mass. 163, 165 (1925).

Hatcher also squarely holds that the standing requirements in summary process are jurisdictional: “where the plaintiff lacks standing to bring an action, the court lacks jurisdiction of the subject matter and must therefore dismiss the action.” Id. And since “[s]ubject matter jurisdiction cannot be conferred by consent, conduct or waiver,” id., quoting Litton Business Sys., Inc. v. Commissioner of Revenue, 383 Mass. 619, 622 (1981), it is legally ineffective for owners or lessors to purport to authorize their agents to bring summary process actions to evict their tenants:

“it is legally irrelevant whether the plaintiff is the agent or attorney of the owner or lessor, or whether the plaintiff has obtained the express approval of the owner or lessor to bring the action in the plaintiff’s name. Only a person entitled to the property as owner or lessor may bring an action to recover possession of that property. See G.L. c. 239, § 1.”

Id. at 547-548 (emphasis added).

Who Bears the Burden of Proof on Plaintiff’s Standing?  

In most civil actions, jurisdictional standing is a threshold issue typically resolved early by a motion to dismiss for lack of subject matter jurisdiction under Mass. R. Civ. P. (“Rule”) 12(b)(1), and/or for failure to state a claim upon which relief can be granted under Rule 12(b)(6). In the fast pace of summary process, however, standing is seldom challenged and if at all, usually raised in the context of a Rule 56 motion for summary judgment, as in Hatcher. How jurisdictional facts become controverted is important on who bears the burden of proof. Williams v. Episcopal Diocese of Mass., 436 Mass. 574, 577 n.2 (2002).

  • Under Rule 12(b)(1), the burden remains with the plaintiff as the party invoking standing to prove its jurisdictional facts by a preponderance of the evidence, and the court does not assume the plaintiff’s factual allegations in the complaint to be true. Caffyn v. Caffyn, 441 Mass. 487 (2004).
  • Under Rule 56, the burden shifts to the tenant as the moving party to establish that the plaintiff has no reasonable expectation of proving it is a “person entitled to the land or tenements” under the Statute, and the record would be viewed in the light most favorable to the plaintiff as the non-moving party. SeeKourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).

It bears caution that consideration of matters outside the pleadings will convert a Rule 12(b)(6) motion to a motion for summary judgment, with the corresponding burden shifting to the tenant as the moving party, but “[s]uch is not the case when deciding a motion to dismiss under [R]ule 12(b)(1)” where the conversion to Rule 56 principle does not apply. Watros v. Greater Lynn Mental Health & Retardation Ass’n, Inc., 421 Mass. 106, 109 (1995). When motions to dismiss are filed under both Rule 12(b)(1) and Rule 12(b)(6), courts ordinarily decide the Rule 12(b)(1) motion first. See Northeast Erectors Ass’n of BTEA v. Secretary of Labor, Occupational Safety & Health Admin., 62 F.3d 37, 39 (1st Cir. 1995).

  • Under Rule 12(h)(3), “whenever it becomes apparent to a court in a summary process action that a plaintiff may not be the owner or lessor of the property, the court is obligated to inquire into the plaintiff’s standing and, if it determines that the plaintiff lacks standing, it must dismiss the action [with prejudice] for lack of subject matter jurisdiction, regardless of whether any party raises an issue of standing.” Hatcher, 479 Mass. at 547.

It also bears reminder that in discharging this independent obligation, judges have broad discretion to make findings outside the four corners of the pleadings and to use any method of obtaining evidence, including ordering discovery, affidavits or other documentary evidence and taking depositions and oral testimony. Ginter v. Commissioner of Ins., 427 Mass. 319 (1998).

Dismissal with Prejudice Is Compulsory If the Plaintiff Lacks Standing   

Hatcher also mandates that “where the plaintiff in a summary process action is neither the owner nor the lessor of the property, the court must dismiss the complaint with prejudice for lack of subject matter jurisdiction” because the “lack of standing is also fatal to the merits of the plaintiff’s claim” for possession. Id. at 547 (italics added). This bright line rule reflects that under USPR 2, summary process actions are deemed commenced only upon service on the defendant of “a properly completed” complaint (after which the original complaint is filed in court), and a complaint that fails to name a plaintiff with a statutory entitlement to recovery of possession is not only incompetent  to commence a justiciable action but also determinative that the plaintiff’s claim for possession is without legal merit. And while such dismissal with prejudice “would not bar the true owner or lessor of the property from filing a new complaint,” where the complaint fails to name the true owner or lessor of the property as the plaintiff in the first instance, the court is without discretion to permit any amendment, substitution or other corrective remedy but must dismiss the complaint with prejudice.

In contrast, if the complaint names a proper plaintiff but is improperly signed, filed and/or prosecuted by a non-attorney agent, a valid summary process action has commenced, and although the court must address the unauthorized practice of law by the agent, the judge has the discretion either to order the immediate dismissal of the action, or allow a conditional dismissal “on a designated date unless the plaintiff before that date retains counsel or proceeds pro se, and amends the complaint accordingly.” Id. at 551.

It bears reminder that any judgment issued without valid subject matter jurisdiction is void. Harris v. Sannella, 400 Mass. 392 (1987). And the defense of lack of subject matter jurisdiction cannot be waived for any reason and may be raised at any time, even after final judgment is entered and for the first time on appeal sua sponte by the appellate court. Id. at 54, n. 5, citing ROPT Ltd. Partnership v. Katin, 431 Mass. 601, 607 (2000); see also Prudential-Bache Securities, Inc. v. Commissioner of Revenue, 412 Mass. 243 (1992); Talmo v. Zoning Board of Appeals, 93 Mass. App. Ct. 926 (2018). While the dismissal for lack of subject matter jurisdiction is ordinarily considered a “final order” subject to immediate appellate review de novo, the denial of a motion to dismiss for lack of subject matter jurisdiction is an interlocutory order.

Conclusion

In the wake of Hatcher, parties now have clear guidelines and strong incentives to resolve promptly any questions that may impact the plaintiff’s standing. By reviewing early and updating regularly information relevant to the parties’ status with respect to the property at issue, parties can avoid considerable expense, trouble, and delay in the just, speedy, and inexpensive determination of their rights and obligations under the Statute.

Lauren D. Song is a senior attorney with Greater Boston Legal Services. Her practice focuses on affordable housing preservation and development through public-private partnerships and residential landlord-tenant law. She is a current member of the Boston Bar Journal.


Special Edition Foreword

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by BBA President Jon Albano

Earlier this year, the Boston Bar Association launched the pilot phase of its Service Innovation Project. Made possible by the Burnes Innovation in Service Fund of the Boston Bar Foundation, the project aims to identify ways for attorneys to disrupt the school-to-prison pipeline in our community.

As you will read in this special edition of the Boston Bar Journal, the factors that contribute to perpetuating the school-to-prison pipeline are numerous and complicated. At the BBA, we have been fortunate to be able to partner with longtime experts who have been on the front lines fighting for students’ rights and school discipline reform for decades. Many of them have written the pieces that follow, and I would like to thank them for their continued efforts.

I also would like to thank the Service Innovation Project Steering Committee for their devotion to working toward better outcomes for children in Massachusetts and beyond. Finally, I would like to offer my sincere thanks to the students and parents who lent their voices to this publication and shared their stories firsthand.

If you are interested in getting involved in the Service Innovation Project, please consider attending our pro bono training on representing students in school discipline cases on October 24.


School Discipline in Massachusetts Today

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by Marlies Spanjaard

Legal Analysis

Even if you haven’t heard the term “school-to-prison pipeline,” you probably know what it describes:  The national trend by which students are funneled out of the public schools and into the juvenile and criminal justice systems.  Instead of getting the education they need, generations of our state’s most vulnerable children have been pushed out of the classroom and into jail by schools with inadequate educational programs and zero tolerance disciplinary policies and practices.  Suspension or expulsion from school can play a major role in pushing students into this pipeline.  Unfortunately, these types of exclusions have increased dramatically in the last fifty years across the country.  Massachusetts is no exception.  Since the 1970s, schools have experienced a massive shift in how they respond to misbehavior in the classroom.  The suspension rate for all students has nearly doubled, with students of color and students with disabilities incurring exclusion at an even greater rate.  In Massachusetts, 17% of all incidents involved low-income Black or Latino students receiving special education, a rate that is estimated to be 10 times greater than their enrollment.  See http://lawyerscom.org/wp-content/uploads/2014/11/Not-Measuring-up_-The-State-of-School-Discipline-in-Massachusetts.pdf.

In 2012, the Legislature enacted G.L. c. 71, § 37H¾, the first law to address school discipline reform in almost twenty years.  The legislature sought to address distressingly high rates of exclusions and provide education services for children who are excluded.

Unlike the preexisting §§ 37H and 37H½, the new § 37H¾ provides procedural protections for students receiving both short term and long term suspensions – short term being under 10 days and long term being 10 days or more.  Reflecting current research and best practices demonstrating that school exclusion is harmful to children and should be a last resort, § 37H¾: (1) requires that the decision maker, typically the school principal, exercise discretion, consider ways to reengage the student, and avoid any long term exclusion until other non-exclusionary alternatives have been tried; (2) prohibits a student’s exclusion for non-serious offenses from exceeding ninety days in a single school year; and (3) requires school districts to provide educational services to students who have been excluded from school for more than 10 days in order for them to make academic progress during the period of their exclusion.  (Prior to the law, a non-special needs student excluded from school had no right to any educational services).

Now, four years into the implementation of § 37H¾, much still remains to be done to address the school to prison pipeline in Massachusetts.  Massachusetts is heralded as having the best public schools in the nation, but access to this system is not equitable.  Massachusetts schools continue to have high suspension and expulsion rates; racial disparities in exclusions continue to be higher than the national average; and the academic services offered to excluded students continue to vary greatly in quality.  Massachusetts must do better, and this article suggests four ways that it can do so.

Provide Robust Procedural Protections for Students Facing Even Short Term Exclusions

First, § 37H¾ provides few procedural protections for students receiving short term suspension – defined as suspensions that are less than 10 days. Under the current law, students who are excluded for less than 10 days receive the opportunity to be heard, but there is no requirement that a parent be present.  While the regulations require the principal to articulate the basis for the charge and to allow the student to present mitigating circumstances, this rarely happens.  Often, a school official informs the student of his suspension while face-to-face, or by calling his parent.  There is also no mechanism for appealing short term suspensions to the superintendent, so these determinations are often final.

Even a short term suspension can drastically impact the student’s achievement.  Each day of exclusion is a missed day of instruction, and can lead students to fall behind.  See https://www.civilrightsproject.ucla.edu/resources/projects/center-for-civil-rights-remedies/school-to-prison-folder/summary-reports/suspended-education-in-massachusetts-using-days-of-lost-instruction-due-to-suspension-to-evaluate-our-schools.  Furthermore, a student who is excluded is left to spend his days out of school without any structure or support, which significantly increases his chances of engaging in delinquent behavior and finding himself in court.  Given that students facing exclusion are often already struggling academically and emotionally, exclusion, even for a short duration, can have a tremendous impact.  Providing robust procedural protections for students facing even short term exclusions would ensure that we are taking the opportunity to address student challenges at their root, rather than waiting until things have already progressed to the point where a student is facing a long term exclusion or expulsion

Clarify The Robust Procedural Protections For Student Facing Exclusion Under Sections 37H And 37H½

Second, § 37H¾ regulates the school’s response to misbehavior that the state has defined as “non-serious exclusions.”  Sections 37H and 37H½ in contrast, regulate the school’s response to misbehavior involving weapons, drugs, assault on educational staff, and any felony charges or convictions.  Under the current statutory scheme, students who are being disciplined for allegations of non-serious behaviors under § 37H¾ have more robust protections delineated than students who are facing more serious allegations and consequences under §§ 37H and 37H½.  The result in practice is that students facing the serious allegations are often not afforded the appropriate due process because it is not specifically delineated in the statute, although it is supported by the case law.  This discrepancy in the statutory scheme is difficult to square with the research demonstrating that exclusion for both “non-serious” and “serious” offenses equally impacts student achievement.  Requiring additional procedural protections does not prevent schools from implementing serious disciplinary consequences if the principal determines such consequences are warranted; they simply require the school to take steps to ensure that the offense occurred and was committed by the student being disciplined, and to hear the whole story including mitigating circumstances before imposing very serious and potentially life altering consequences.  The law should be amended so that it is clear that students who are facing discipline under §§ 37H and 37H½ are entitled to all of the procedural protections received by students facing discipline under § 37H¾.

Limit The Authority Of Principals To Exclude Students For Out Of School Conduct

Third, the provisions of § 37H½ that allow exclusion of a student who has a pending felony charge or conviction upon the principal’s determination that the student’s continued presence would have a detrimental effect on the school’s general welfare sweeps too broadly.  Although the layperson thinks of “felonies” as charges such as murder or manslaughter, § 37H½ has been used to exclude students charged with felonies reflecting normal adolescent behavior, such as riding in the backseat of a car that turned out to be stolen, fighting, or stealing an iPhone.  The law gives principals the discretion to exclude a student based solely on the existence of a criminal charge.  Principals are educators, not judges.  They are not trained to make these determinations, and are often being asked to decide a student’s fate with limited information.  In fact, the information a principal has is sometimes obtained in violation of student privacy protections as juvenile court proceedings are confidential.

Further, available data illuminate a serious problem with disparities in both race and disability status of the young people who face juvenile court charges.  Massachusetts is one of the few states that allow this type of exclusion based solely on an allegation, despite the notion that one ought to be presumed innocent until proven guilty.  Barring a complete removal of a principal’s ability to exclude based on a mere allegation, the statute should be amended to reflect the Department of Elementary and Secondary Education’s 1994 advisory, which said that § 37H½ should only be used for serious violent felonies.  One approach could be to align § 37H½ with the Youthful Offender Statute.

The Youthful Offender statute, G.L. c. 119, § 54, allows prosecutors in circumstances where they feel a child has committed a serious offense to indict a child as a youthful offender, subjecting them to treatment as an adult.  The statute applies to: youth who have previously been committed to DYS or are accused of causing or threatening serious bodily harm, or any charge involving a gun.  If the statue focuses on the realistic threat to school safety, those who are alleged to have committed minor, non-violent crimes will be excluded at a lower rate.  Furthermore, youthful offender cases are open to the public, which would allow everyone the opportunity to have the same information and wouldn’t incentivize the disclosure of confidential information currently protected by the juvenile court.

Limit The Definitions Of “Assault” And “Weapon” Under Section 37H.

Finally, § 37H should more clearly define the terms “assault” and “weapon.”  Section 37H defines “weapon” in a way that explicitly includes guns and knives, but is otherwise vague.  This has permitted principals to expand the definition of “weapon” to sometimes comical levels, such as a case in which a student was excluded under § 37H for possessing a paperclip.  Similarly, “assault,” which also is not definite under § 37H, has sometimes been applied to include a “menacing” look from a student, unintentional contact with a teacher, or contact made with a teacher by a kindergartener during a tantrum.

Changing § 37H to clarify that all the elements of an “assault” must be present before expulsion, including specific intent and imminent harm, would lower exclusions. Currently, a broad spectrum of actions may be considered an “assault,” including unintentional acts or acts where there was no actual threat of harm.  Further, the definition of “weapon” should be changed to match the federal definition of “dangerous weapon” under 18 U.S.C. § 930: A “device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2½ inches in length.”  A school could still short term suspend students under § 37H ¾ for any item banned in their student handbook, but this change would limit the amount of students permanently excluded.  These simple changes will reduce exclusions and keep students in the educational environment they so desperately need.

Conclusion

Section 37H¾ has significantly improved school discipline practice in Massachusetts, but much remains to be done.  Some schools are excluding upwards of 50 percent of their student body each year.  Students of color are still suspended at much higher rates than their white counter parts.  By adopting the changes suggested above, Massachusetts can continue to improve on the progress already made.  Massachusetts has long been at the forefront of progressive approaches to student misconduct, recognizing students as individual children in need of compassion and support rather than bad apples that need to be pushed out.  By amending our laws to reflect the above changes, Massachusetts can continue to play a role as a leader in the field.

Marlies Spanjaard, MSW, JD, is the Director of the EdLaw Project, a statewide education advocacy initiative housed within the Youth Advocacy Division of the Committee for Public Counsel Services.   She is a recognized expert on education law and school-to-confinement pathways.  A passionate and dedicated advocate for vulnerable youth in Massachusetts, her work focuses on increasing education advocacy among the juvenile and child welfare bars to ensure children are supported to succeed in school and stay out of the court system.


School Discipline Law, Ch. 222 of the Acts of 2012: Effective Application and Challenges with Ongoing Implementation

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by Liza Hirsch and Janine Solomon

Legal Analysis

Brief History of School Discipline Reform in Massachusetts

In Massachusetts and nationwide, one of the most commonly used responses to students who exhibit misbehavior is to exclude them from school, effectively depriving them of education. While out-of-school suspension has been used in schools as a form of discipline since the 1960s, it was not until the 1990s, during the era of “tough on crime” and zero tolerance policies, that out-of-school suspension became a widespread approach for addressing minor misbehavior. In keeping with this trend, the Massachusetts legislature enacted the Education Reform Act of 1993 which provided principals with broad authority to exclude students from school. Researchers began to express concern that exclusion from school not only did not improve children’s behavior, it actually made it more likely that those students would misbehave and accrue additional suspensions.[1] Moreover, research began to demonstrate that students of color and students with disabilities were more likely to be suspended from school.[2] Over time it has become increasingly clear that children who are repeatedly excluded from school face devastating consequences: they are less likely to reach learning milestones and more likely to fall behind, repeat grades, drop out of school and not graduate, and/or have contact with the criminal justice system, pushed into a trajectory known as the “school-to-prison pipeline.”

In response, Massachusetts Advocates for Children (MAC) joined with other concerned advocates to form the Education Law Task Force (ELTF)[3]. After years of advocacy by ELTF, State Representative Alice Wolf, and other advocates, An Act Relative to Student Access to Educational Services and Exclusion from School (Chapter 222 of the Acts of 2012) [4] was enacted and took effect in 2014.[5] The law created new due process and data reporting requirements for school districts regarding the exclusion of students from school for minor misbehavior. The underlying principle of the law is to make exclusion from school a last resort, especially for all but the most serious offenses. Districts are required to provide notice and a hearing prior to an out-of-school suspension, absent emergency circumstances. The law also requires all students who are excluded from school to have access to assignments, quizzes and tests, and for students who are long-term suspended or expelled to receive tutoring, online coursework or other alternative education services.[6] The law and regulations additionally require the Massachusetts Department of Elementary and Secondary Education (DESE) to collect disaggregated school discipline data from school districts[7], post the data, analyze the data, and provide support to schools that exclude high numbers of students or disproportionately suspend students of color or students with disabilities.

Current Implementation and Challenges

Advocacy by the ELTF and others was essential not only to the passage of the law, but to its implementation. The ELTF provided substantial input into the implementing regulations, by submitting draft regulations, commenting on the proposed regulations, and testifying to the Board of Elementary and Secondary Education.[8] Today, four years into the implementation of Chapter 222, the ELTF, through its Chapter 222 Coalition, has grown and continues to collaborate with DESE regarding the implementation of the law. Since the law took effect, DESE has posted school discipline data disaggregated by district and school for the 2014-15, 2015-16 and 2016-17 school years. The data show some improvement in lowering the rates of suspension, especially in the first year of the law’s implementation. Some schools and districts have made meaningful changes to lower the rates of suspension, while others have not demonstrated improvement. The data also show that while suspension rates have decreased for students of color and students with disabilities, both groups continue to be suspended at higher rates than their peers.

In adherence with the regulations, DESE has established a process for identifying schools and districts that demonstrate overreliance on suspension and/or disparate rates of suspension by race, ethnicity, or disability. These schools and districts participate in the Rethinking School Discipline Professional Learning Network (PLN), a forum in which educators and administrators can learn with and from each other, reflect on their own school discipline data, and draft action plans which aim to reduce reliance on exclusion as a form of discipline. The plans include approaches for promoting positive school climate and implementing positive behavioral supports and alternatives to suspension such as restorative justice. The ELTF has provided input into the action plan templates and offered feedback regarding the process through which schools and districts are selected for participation in the PLN.

In addition to efforts to implement Chapter 222, DESE is working to foster whole school culture change through implementing the statute titled, the Safe and Supportive Schools Framework,[9] which offers guidance for districts to develop school cultures based on support rather than exclusion of students. As part of this law’s implementation, DESE has worked in collaboration with MAC’s Trauma and Learning Policy Initiative to provide PLN participants with professional development opportunities on how to create safe and supportive schools.

Although the initial years of implementation of Chapter 222 have yielded positive efforts by many schools and districts to reduce reliance on suspension and to address disparities by race, ethnicity, and disability, there continue to be implementation challenges. The integrity of data reporting by schools and districts is of utmost importance to ensure the fidelity of the law’s implementation, yet attorneys representing parents and students continue to observe the underreporting of suspensions by many school districts. One common practice by school districts involves calling parents to ask them to pick up their child due to misbehavior, without adhering to due process requirements or documenting the exclusion as a suspension. This unlawful practice, often utilized repeatedly by schools, is a burden to parents, even to the point of causing job loss.

A further challenge is the lack of resources at both the state and local levels to implement the law. DESE has limited capacity to identify and provide support to all of the schools and districts in need, and while many schools and districts recognize the need to reduce reliance on suspension, they lack the resources, training, and in-classroom modeling needed to effectively implement alternative practices. Even when schools attempt to implement alternatives for managing challenging student behavior, without a cohesive and coordinated approach, these initiatives are often not sustainable. Reducing school exclusion in a meaningful way requires the implementation of alternatives (e.g., restorative justice) and whole school culture change to create an environment that is inclusive, equitable, safe, and supportive of all students. Effective models incorporate the role of trauma in learning, address the individual needs of students with disabilities, and account for the influence of institutional racism and racial bias in disciplinary practices.

The ELTF/Chapter 222 Coalition looks forward to continued collaboration with DESE to: (1) ensure meaningful oversight and accountability for all schools and districts that are not in compliance with the law; and (2) ensure teachers and school leaders have the training and support to reduce suspensions through alternative practices and whole school culture change. By virtue of Chapter 222, in conjunction with the Safe and Supportive Schools Framework, Massachusetts is well positioned to be a national leader in reducing reliance on school exclusion and keeping our most vulnerable students in school and engaged in learning.

 

[1] Kirsten L. Allman, and John R. Slate. “School Discipline in Public Education: A Brief Review of Current Practices.” International Journal of Educational Leadership Preparation 6.2 (2011): n2 (citing, Hochman, S. R., & Worner, W. (1987). In-school suspension and group counseling: Helping at-risk students. NASSP Bulletin, 71, 93-97; Sauter, B. (2001). Rethinking the effectiveness of suspensions. Reclaiming Children and Youth, 9, 210-217; Ambrose, M., & Gibson, M. (1995). Does suspension work? NEA Today, 13, 39; & Costenbader, V. K., & Markson, S. (1998). School suspension: A survey of current policy and practices. NASSP Bulletin, 78, 103).

[2] Townsend, Brenda L. “The disproportionate discipline of African American learners: Reducing school suspensions and expulsions.” Exceptional children 66.3 (2000): 381-391; Krezmien, Michael P., Peter E. Leone, and Georgianna M. Achilles. “Suspension, race, and disability: Analysis of statewide practices and reporting.” Journal of Emotional and Behavioral Disorders 14.4 (2006): 217-226.

[3] The ELTF is a statewide group of attorneys, advocates, young people, and organizers, convened by MAC, working to address educational issues facing low-income children in Massachusetts. The ELTF pays particular attention to school discipline, and successfully advocated for the passage of Chapter 222.

[4] Mass. Gen. Laws ch. 71, §§ 37H, H ½ and H ¾ (2014).

[5] For a more comprehensive summary of the history of the passage of Chapter 222, see, Tom Mela, “How We Won School Discipline Reform in Massachusetts,” Schott Foundation for Public Education, available at http://schottfoundation.org/blog/2014/07/23/how-we-won-school-discipline-reform-massachusetts.

[6] Prior to the enactment of this law, children expelled from school were not legally entitled to receive an education from a public school in the Commonwealth.

[7] Moreover, in April 2018, the Massachusetts Legislature enacted the statute, “An Act Relative to Criminal Justice Reform” which includes several provisions applicable to schools, including the requirement that school-based arrests, criminal citations, and court referrals be reported to DESE for publication in a “like manner” as school discipline (e.g. disaggregated by race, disability, and gender).

[8] Mela, supra.

[9] Mass. Gen. Laws ch. 69, § 1P (2014).

Liza Hirsch is a staff attorney with Massachusetts Advocates for Children where she represents families in school discipline and special education matters.
Janine Solomon is Managing Attorney/Senior Project Director of Massachusetts Advocates for Children. She is a co-chair of the Education Law Task Force.


Deconstructing the School-to-Prison Pipeline

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by Hon. Jay Blitzman

Voice of the Judiciary

The Supreme Court has abolished the juvenile death penalty, mandatory juvenile life without parole, and in acknowledging the reality of adolescent brain development, has outlined a regime of proportional accountability. Children are constitutionally different than adults. Research has demonstrated that reducing detention also reduces recidivism by promoting the socially connective tissue of family, school, and community that is vital to positive youth development. We can protect public safety at less cost. Youth who do not graduate from high school are eight times more likely to later be arrested and it costs three to five times more to incarcerate than to pay for public education.

The message of proportional accountability has implications in all contexts, including zero tolerance in schools, mandatory transfer and collateral consequences. However, in an era of dramatically declining juvenile arrest rates, this promising landscape has been complicated by a counterintuitive narrative – the recriminalization of status offense conduct that was decriminalized in the aftermath of In Re Gault, 387 U.S. 1 (1967). This has manifested itself in various forms, including treating status offenders as probation violators in some states and imposing conditions of supervision which are status offense-like in nature (e.g. attending school without incident), and  commitments for probation violations not related to re-offending.  This article focuses on another aspect of this process- the surge of school referrals to juvenile justice which, as discussed in Arrested Futures, a collaboration between the ACLU of Massachusetts and the Massachusetts Citizens for Juvenile Justice, has unfortunately involved many arrests for essentially non-violent normative adolescent behavior.

Nationally about 84% of youth in the juvenile justice system are there for non-violent conduct and over two-thirds of this number are youth of color.  Although detention and commitment rates have declined, racial and ethnic disparities have increased. In 2017, the Sentencing Project reported that African-American youth are five times more likely to be held than whites, Latino youth are 65% more likely to be held, and Native American youth were three times more likely to be detained. LGBTQ- gender non-conforming youth comprise 5% of the nation’s youth population, but 20% of those are detained and 85% of that number are youth of color.  Over 75% of children who appear in juvenile sessions have mental health or clinical issues as courts have become default service providers.

Issues affecting children should be considered in the context of the larger systems that affect them. The multi-faceted factors that contribute to the school-to-prison pipeline implicate fundamental questions of race and class.  As Marian Wright-Edelman has observed, the school-to-prison pipeline runs through economically depressed neighborhoods and failing schools. Over sixty years after Brown v. Board of Education held that separate in public education is per se unequal, our schools remain segregated. The issue is national in scope. New York City, for example, has perhaps the most segregated school system in the country.  In a real sense we live in a world that is still separate and unequal. Access to adequate public education remains an access to juvenile justice issue. Professor Charles Ogletree has concluded that as regards Brown’s legacy, there is little left to celebrate.  In The Color of Law, Richard Rosenstein attacks the premise of de facto segregation, arguing that geographical segregation is the result of race conscious de jure actions which have included zoning, housing, school siting, and urban renewal polices.

Where people live matters. The Boston Globe recently reported that the Brockton school system was only able to spend $1.28 per student on classroom supplies during the 2016-2017 school year, while Weston allotted $275.00 per student. The adverse impact of geographic segregation is reflected in the reality that we see the same children and families in the child welfare system as we do in the juvenile system, with the same rates of racial and ethnic disproportionality. Between 2010 and 2012, 72% of the children committed to the Massachusetts’ Department of Youth Services had been involved with the Department of Children and Families (DCF.) and over half of that number’s families had been involved with DCF before they were five. Every time a child’s placement in foster care is changed it is estimated they lose six months of educational progress which compromises their ability to graduate. Marian Wright-Edelman and others now use the phrase cradle-to-prison pipeline.

Police have been in schools since the civil rights era, but after the 1999 school shooting in Columbine, police presence in schools accelerated exponentially as did the expanded use of “zero tolerance” formerly reserved for guns and drugs.   Police were placed in schools without first considering their relationship with educators and the scope of their authority.  Police officers were largely placed in schools serving students of color, schools which had never had a Columbine type of incident. New York City, for example, has over 5,400 school police officers.  The unregulated deployment of police in schools, coupled with zero tolerance, has fueled the pipeline and adversely affected schools of color.  While these practices may be rationalized as logical responses to protect children, National Center for Education data shows that reported incidents of school violence had peaked in 1994, well before Columbine, and that national juvenile arrest rates had reached their high point in 1994, and by 2016 had declined by 70%.  The effects of these policies were apparent. In 2000, over three million students were suspended and over ninety-seven thousand arrested. African-American students have been three-to-five times more likely to be suspended than white students for comparable behavior, underlining the mythology of race-neutral zero tolerance.

The reality of the “pipeline” was demonstrated in 2012, when the Department of Justice accused the city of Meridian, Mississippi of operating a school-to-prison pipeline. Named defendants included the schools, police, judges, probation officers, and the state’s Department of Human Services and Division of Youth Services. While the circumstances are rarely as overt. The pipeline exists and deconstructing it requires a multi-faceted response.  The Juvenile Detention Alternative Initiative JDAI), and the MacArthur Foundation’s Models for Change are examples of data based initiatives that encourage cross-system dialogue and examine evidence based practices to better protect public safety while promoting positive youth development.  Massachusetts features a robust partnership with JDAI by partnering with court professionals and practitioners in an effort to decrease unnecessary detention and address racial and ethnic disparities. Adopting more proportional and strength based models in engaging youth in lieu of zero tolerance regimes, as recommended by the American Psychological Association and the American Bar Association (ABA), coincides with the Supreme Court’s message of proportional accountability.  Restorative justice, especially as applied in schools and communities in lieu of court referral, is an example of a public health oriented approach. Massachusetts juvenile justice reform, enacted this year, expanded diversion opportunities and allowed for the expungement of records for the first time, in certain circumstances. Of particular importance is the legislation’s call for school districts to develop memoranda of understanding to inform the relationship of school resource officers and educators. This would provide a framework for conversation and exploration of alternative action. Given the school shooting in Parkland, FL, the need to capitalize on this legislative opportunity cannot be over-emphasized, unless we wish to revisit the unintended consequences that followed Columbine.  Promulgation of memoranda of understanding is consistent with JDAI initiatives and resolutions adopted by the ABA.

We have made progress through systemic dialogue, use of data, and the development of memoranda of understanding. However, to truly deconstruct the pipeline we must tackle the underlying structural realities which fuel implicit bias and the school/cradle-to-prison pipeline. Equal Justice Initiative’s Bryan Stevenson has stressed that in order to have truth and reconciliation we must address the realities of our history. Hopefully, the Boston Bar Association’s focus on this important subject will prove to be a step in the right direction.

Judge Jay Blitzman is the First Justice of the Middlesex Division of the Massachusetts Juvenile Court. Prior to his appointment he was a co-founder and the first director of the Roxbury Youth Advocacy Project, a multi-disciplinary public defender’s office, which was template for the creation of the statewide Youth Advocacy Division of C.PC.S. Jay is also a co-founder of the Massachusetts Citizens for Juvenile Justice and Our RJ, diversionary restorative justice program.  Jay writes and presents regularly at a variety of forums.  His most recent publications are, Gault’s Promise Revisited: The Search for Due Process (Juvenile and Family Law Journal, NCJFCJ June 2018), The State of Juvenile Justice (ABA Criminal Justice Section, June 2018), Realizing Gault’s Promise ( Arizona Attorney, May 2017) and Are We Criminalizing Adolescence? (ABA Criminal Justice, May 2015).  Jay has held a variety of teaching positions. He currently teaches juvenile law at Northeastern University School of Law, and is a team leader at Harvard Law School’s Trial Advocacy Workshop program. Judge Blitzman is a member of the S,J.C. Standing Committee on Eyewitness Identification and the S.J.C. Jury Advisory Committee.