The Defend Trade Secrets Act of 2016 (“DTSA”) creates a federal private right of action for misappropriation of trade secrets — hitherto the province of state unfair competition law. It now provides original federal court jurisdiction for these questions, as for infringement of other “intellectual property” such as patents, copyrights and federally-registered trademarks. However, the jurisdiction is not exclusive, and the DTSA does not preempt state trade secret law, raising questions about the coexistence of the DTSA and Massachusetts law governing trade secrets. This Article explains salient aspects of the DTSA and differences from Massachusetts law that may be considered in asserting either or both.
I.Highlights of the DTSA
The DTSA has four important aspects:
- The DTSA allows “owners” to sue for “misappropriation” of “trade secrets” that are “related to a product or service used in, or intended for use in, interstate or foreign commerce.” 18 U.S.C. § 1836(b)(1). For purposes of the DTSA, a trade secret is “all forms and types of financial, business, scientific, technical, economic, or engineering information . . . if—(A) the owner thereof has taken reasonable measures to keep such information secret; and (B) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information.” 18 U.S.C. § 1839(3).
- Courts may issue ex parte orders of “the seizure of property necessary to prevent the propagation or dissemination of the trade secret.” 18 U.S.C. § 1836(b)(2).
- Courts may issue injunctions to prevent “actual or threatened misappropriation,” provided that the order does not:
“(I) prevent a person from entering into an employment relationship, and . . . conditions placed on such employment shall be based on evidence of threatened misappropriation and not merely on the information the person knows; or
“(II) otherwise conflict with an applicable State law prohibiting restraints on the practice of a lawful profession, trade, or business.” 18 U.S.C. § 1836(b)(3)(A)(i).
- “Whistleblowers” are given immunity from federal or state trade secret suits for confidential disclosures made to government or the courts “solely for the purpose of reporting or investigating a suspected violation of law,” without otherwise preempting existing state law remedies for misappropriation of trade secrets. 18 U.S.C. §§ 1833, 1838.
II. What Is “Misappropriation” of “Trade Secrets”?
Massachusetts has not enacted the UTSA (enacted by 47 other states), which is the basis for the DTSA’s definition of “misappropriation” (see note 1). Instead, M.G.L. c. 93, § 42, provides:
Whoever embezzles, steals or unlawfully takes, carries away, conceals, or copies, or by fraud or by deception obtains, from any person or corporation, with intent to convert to his own use, any trade secret, regardless of value, shall be liable in tort. . . .
(Emphasis added.) “Trade secret” is defined in M.G.L. c. 266, § 30(4), as
anything tangible or intangible or electronically kept or stored, which constitutes, represents, evidences or records a secret scientific, technical, merchandising, production or management information, design, process, procedure, formula, invention or improvement.
In the decade following enactment of those provisions, the Supreme Judicial Court embraced Section 757 of the 1939 Restatement of Torts and its principles for defining “trade secrets” in its comment b. Today, Massachusetts courts apply Section 757 as equivalent to those two statutory provisions.
Massachusetts federal district courts have tested for trade secret “misappropriation” by asking if the defendant “used improper means, in breach of a confidential relationship, to acquire and use that trade secret.” However, as shown in the following table setting forth its text and that of the DTSA for comparison (emphases added), Section 757 recognizes some misappropriations that do not require acquisition by improper means. The DTSA adds a distinct misappropriation of acquisition by “improper means” without requiring “use.”
|1939 Restatement § 757||DTSA, as codified in 18 U.S.C. § 1839(3)|
|the term `misappropriation’ means–
(A) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
|One who discloses or uses another’s trade secret, without a privilege to do so, is liable to the other if||(B) disclosure or use of a trade secret of another without express or implied consent by a person who–|
|(a) he discovered the secret by improper means, or||(i) used improper means to acquire knowledge of the trade secret;|
|(ii) at the time of disclosure or use, knew or had reason to know that the knowledge of the trade secret was–|
|(b) his disclosure or use constitutes a breach of confidence reposed in him by the other in disclosing the secret to him, or||(II) acquired under circumstances giving rise to a duty to maintain the secrecy of the trade secret or limit the use of the trade secret; or|
|(c) he learned the secret from a third person with notice of the facts that it was a secret and that the third person discovered it by improper means or that the third person’s disclosure of it was otherwise a breach of his duty to the other, or||(I) derived from or through a person who had used improper means to acquire the trade secret;
(III) derived from or through a person who owed a duty to the person seeking relief to maintain the secrecy of the trade secret or limit the use of the trade secret; or
|(d) he learned the secret with notice of the facts that it was a secret and that its disclosure was made to him by mistake.||(iii) before a material change of the position of the person, knew or had reason to know that–
(I) the trade secret was a trade secret; and
(II) knowledge of the trade secret had been acquired by accident or mistake;
|1939 Restatement § 757 cmt. B||DTSA, as codified in 18 U.S.C. § 1839(3)|
|A trade secret may consist of any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. . . . [I]t is not simply information as to single or ephemeral events in the conduct of the business. . . . A trade secret is a process or device for continuous use in the operation of the business. . . . Some factors to be considered in determining whether given information is one’s trade secret are: . . .
(5) the amount of effort or money expended by him in developing the information;
|the term “trade secret” means all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if—|
|(3) the extent of measures taken by him to guard the secrecy of the information;||(A) the owner thereof has taken reasonable measures to keep such information secret; and|
|(1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business;. . . (4) the value of the information to him and to his competitors; . . .and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others||(B) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information|
As the table above shows the DTSA does not maintain a continuous-use requirement. (Some Massachusetts decisions have applied that requirement of continuous use to dismiss misappropriation claims that did not allege current use by the plaintiff, even where the plaintiff alleged it had been put out of business by the misappropriation.) Notwithstanding that difference, both comment b and the DTSA focus on reasonable protection of non-public information of economic value.
The DTSA, more clearly than Massachusetts law, protects information that is not currently used by the “owner,” as well as information acquired by improper means, but not currently used by the defendant.
III. Remedies for Misappropriation
Another significant difference between Massachusetts trade secret law and the DTSA is the remedies that are available.
Under Massachusetts law, a trade secret plaintiff may recover its direct damages (primarily lost profits) — potentially doubled under M.G.L. c. 93, § 42 — but not restitution (value to the defendant) or reasonable royalties (unless lost profits cannot be shown). It is uncertain if injunctions may be granted against inchoate use of trade secrets. (See note 3.)
In contrast, under federal law, a trade secret plaintiff may now recover in more ways than under Massachusetts law:
First, it may recover a non-duplicative combination of direct damages and unjust enrichment (restitution) or, alternatively, reasonable royalties. See 18 U.S.C. § 1836(b). Any of those remedies may be trebled, and the court may award attorney’s fees as well.
Second, it can get an injunction. Under the DTSA, except for employee protection, a court may enter an injunction “to prevent any actual or threatened misappropriation.” 18 U.S.C. § 1836(b)(3).
Third, it can get ex parte seizure of the misappropriated property. For this remedy, found in 18 U.S.C. § 1836(b)(2), a plaintiff must produce a verified application, among other things, specifying the property and its location and showing why other procedures (such as an ex parte temporary restraining order under Fed. R. Civ. P. 65) are inadequate. Ex parte seizure under section 1836(b)(2) is permitted “only in extraordinary circumstances” and only after the court considers protections for third parties and the target party, including a post-seizure hearing and wrongful seizure remedies. As such, it seems unlikely that the provision will be applied often.
IV. Employee Protection
The DTSA includes two significant protections for employees, who make up a large proportion of the defendants in trade secret cases (see note 4).
First, “to protect employee mobility,” the limitations quoted in section 1 prevent DTSA injunctions from (1) applying the “inevitable disclosure doctrine” (which bases a noncompetition injunction on the notion that a former employee will “inevitably” misuse his or her former employer’s trade secrets in new competitive position benefiting from those secrets) or (2) interfering with state laws limiting the enforceability of non-competition agreements and similar limits on employment (such as California’s broad prohibition on noncompetition agreements). Massachusetts courts are divided on the applicability of the inevitable disclosure doctrine. Concurrent assertion of the DTSA, which clearly rejects the doctrine, should not affect application under Massachusetts law, except perhaps tipping against such application by focusing on definitions of “trade secrets” that do not clearly include mental information that might be inevitably used, compared to the broader definition at UTSA § 1(4).
Second, whistleblowers received immunity for disclosures to the government of “a suspected violation of law.” Title 18 U.S.C. § 1833(b)(3)-(4) requires “notice of the immunity [be given] . . . in any contract or agreement with an employee that governs the use of a trade secret or other confidential information,” including “any individual performing work as a contractor or consultant for an employer.” If that notice is not given, the employer cannot receive treble damages or attorney’s fees in a DTSA action. Employers should therefore provide the notice, even if by cross-reference to a policy document (which federal law permits).
The DTSA does not alter how to protect proprietary information in Massachusetts — reasonable measures are still required — but, importantly, does provide clearer protection for proprietary information not currently used and against threatened wrongful use. It also provides the possibility of ex parte seizure and greater potential in damages.
Moreover, with a broad jurisdictional grant without a threshold amount, claims under the DTSA provide easy access to federal court and the broad interstate discovery in federal-court proceedings. Claims under the DTSA may also be asserted in state court, but some of the federal-court procedures, such as ex parte seizure, may require adaptation.
 The DTSA definition of “misappropriation” drew from the definition used in the 1979/85 Uniform Trade Secrets Act (“UTSA”), available at http://www.uniformlaws.org/shared/docs/trade%20secrets/utsa_final_85.pdf (visited Jan. 10, 2017). Compare 18 U.S.C. § 1839(5), with UTSA § 1(2) (“misappropriation”); compare also 18 U.S.C. § 1839(6), with UTSA § 1(1) (“improper means”). However, the DTSA term is applied to a “trade secret” and “owner” as defined by the Economic Espionage Act of 1996, 18 U.S.C § 1839(3) and (4), which are more consonant with the criminal targets of that statute, id. §§ 1831 and 1832, than with the civil unfair competition targets of the UTSA (which eschewed the concept of an “owner” and applies to more general “information” than the EEA “types”).
 E.g., Jet Spray Cooler, Inc. v. Crampton, 361 Mass. 835, 840 (1972) (citing Restatement (First) of Torts § 757 cmt. b (Am. Law Inst. 1939)). See Incase Inc. v. Timex Corp., 488 F.3d 46, 52 n.10 (1st Cir. 2007) (“The statutory and common-law claims may be essentially equivalent.”).
 E.g., Infinity Fluids, Corp. v. General Dynamics Land Sys., 2016 U.S. Dist. LEXIS 134613 at *26 (D. Mass. 2016). Massachusetts cases are split on whether actual, current “use” is required for misappropriation; the Supreme Judicial Court has declined to address the issue. See Lightlab Imaging, Inc. v. Axsun Tech., Inc., 469 Mass. 181, 186-87 (2014),
 Most trade secret cases involve “breach of confidential relationship,” where information is properly acquired by employees or business associates, but its use allegedly exceeds limits permitted by the relationship. See Almeling, et al., A Statistical Analysis of Trade Secret Litigation in State Courts, 46 Gonz. L. Rev. 57 (2010).
 The UTSA (which, again, Massachusetts has not enacted) also lacks a continuous-use requirement. A comment to the UTSA explains that such a requirement “extends protection to a plaintiff who has not yet had an opportunity or acquired the means to put a trade secret to use.” UTSA § 1(4), cmt.
 E.g., Portfolioscope, Inc. v. I-Flex Solutions Ltd., 473 F. Supp. 2d 252, 255 n.6 (D. Mass. 2007).
 Jet Spray Cooler, note 2 supra; Curtiss-Wright Corp. v. Edel-Brown Tool & Die Co., 381 Mass. 1 (1980).
 Cal. Bus. & Prof. Code § 16600.
 Compare Safety-Kleen Sys., Inc. v. McGinn, 233 F. Supp. 2d 121, 125 (D. Mass. 2002) (inapplicable as threatened use), with U.S. Elec. Serv., Inc. v. Schmidt, 2012 U.S. Dist. LEXIS 84272 (D. Mass. 2012) (applicable for irreparable injury, not likelihood of success), with Corporate Tech., Inc. v. Harnett, 943 F. Supp. 2d 233 (D. Mass. 2013) (applicable for likelihood of success).
 Consider the theft-and-conversion language of Chapter 93, Section 42 and the EEA crimes against “owners” (note 1 supra). Can one “own” what is in another’s memory, experience and skills?
Stephen Y. Chow, Burns & Levinson LLP, litigates technology disputes, prosecutes patent applications, and develops technology policies, strategies and licenses. He has been a Massachusetts Uniform Law Commissioner since 1994.
As lawyers, even while in pursuit of professional excellence, we also need support and intellectual nourishment outside of our firms or organizations – to be, and remain, successful in this competitive industry. And for me, those resources always have been found at the BBA. That is one of the reasons that makes me so proud that you have elected me become the 95th President of the Boston Bar Association.
In addition to the rich educational programming and the ability to develop a strong network, perhaps what is most exciting about this organization is its capacity to bring some of the brightest, most powerful people in the legal industry together, regardless of where they practice or how they identify themselves, in order to help solve problems affecting all of us.
Over my nearly three decades of practice and 16 years of involvement with the BBA, I have experienced how much we can do – as lawyers – when we step outside our own individual practice silos and work together on common issues in the profession.
Being a part of this Association – and having the opportunity over the years to both mentor and be mentored – has been so enriching for me. And it’s tremendously gratifying to be able give back to the BBA and the profession that has done so much for me.
But I think everyone has seen examples of how the practice of law has changed over the years. The legal profession itself is undergoing tremendous change, and much of that change is challenging.
There are plenty of industry statistics that tell us the ceiling for upward mobility is still too low for women and minorities; we have some law firms closing their doors, while others are merging into gigantic corporate structures at the cost of a shared collegiality or community in the office that gives so many of us joy in the profession.
But at the heart of all of this volatile change there is also opportunity: the opportunity for growth and collaborative development.
I’m really proud of the way the BBA has responded to some of these changes. Last year, during her term as President, Lisa Arrowood implemented the very successful Friday Fundamentals program. We will continue with these important programs in the year ahead.
But as we look forward, we cannot focus only on those lawyers who are just starting out, because the changes we are experiencing don’t just affect new lawyers; they affect us all. Even those who are at the peak of our practices grapple with them. From the demands of clients to the flood of new technology, the legal profession is being reshaped by the global economy, and some of us are in danger of being left behind unless we have a plan in place to adapt.
That’s why my goal this year is to harness the expertise and talent of BBA members at large, from all different practice areas, to implement bigger and broader professional development programming: Programming that connects lawyers not only across practice areas, but also with a cross section of industry. And programming that explores common tools of innovation that can be accessible to all lawyers.
We’re in the right place to do this. Boston has always been a city of innovation; we have been at the forefront of healthcare and education for decades, and now we’re leading the nation in the technology, life sciences, and venture capital sectors as well, to the extent that global companies like GE are deciding that Boston is where they need to be.
These constantly-evolving industries bring new legal issues and challenges. It’s essential that lawyers who practice in these fields stay connected with what’s happening on the front lines.
That’s why I’m thrilled to be leading the charge as the BBA develops a series of conferences – such as the BBA Life Sciences Conference on November 10th – which will explore the interplay between the life sciences sector and the law, and bring lawyers and industry together, from biotech startups to pharmaceutical companies.
We’re planning this in other areas, too – like Venture Capital, Higher Education, and Privacy. This is one of the greatest strengths of the BBA: the ability to provide these unique opportunities for practitioners to meet and exchange ideas with industry leaders.
As a Bar Association, we can empower lawyers from all walks of life to be who they are, to innovate and do significant for their own practice, and for the profession at large. And the only way we can continue to do that now is if we are together, see the value in one another, and learn from one another. If we do that, we can turn some of these real challenges in our profession into real opportunities.
I hope you share my enthusiasm for all that’s ahead, and I look forward to seeing all of you there along the way.
Mental Health Courts: Providing Access to Treatment, Restoration of Human Dignity and Recovery with JusticePosted: October 25, 2016
Voice of the Judiciary
A mental health court is a specialty court whose purpose is to serve mentally ill criminal offenders in the early stages of the criminal process by offering a diversionary program of treatment and strict supervision instead of arrest and detention. It is a collaborative effort between the criminal justice and the mental health treatment systems intended to improve the quality of life of individuals with severe mental illness by providing access to comprehensive services instead of incarceration and to improve public safety by reducing recidivism.
Although it is undisputed that mental Illness rarely leads directly to criminal behavior, many mentally ill people find themselves in court facing criminal complaints when their behaviors become threatening, aggressive or dangerous to themselves or others. The use of substances such as alcohol and illegal drugs to self-medicate by the mentally ill populace further increases the likelihood of court involvement.
Experience shows that for individuals with severe mental illness, brief periods of custodial detention tend to exacerbate symptoms associated with depression, paranoia and anxiety. Often individuals have difficulty complying with standard reporting requirements imposed by probationary terms or conditions of release while awaiting trial. Those individuals can be disorganized and overwhelmed by the demands of daily living due to their mental illness. The end result often is a cycle of arrest, incarceration, release and re-arrest with little hope of recovery or successful integration into the community. National and state evidence reveals a disproportionate number of individuals with some form of mental illness within the justice system as compared with the general population.
The creation and development of mental health courts in the Commonwealth is due in large part to the vision of retired Judge Maurice Richardson coupled with a generous private grant from the Sidney Baer Foundation (http://www.baerfoundation.com). Judge Richardson recognized the cycle of court involvement for those suffering from a mental illness and the overriding need for a collaborative approach between the behavioral health system and courts to effectuate improved outcomes. The importance of the role of the Sidney Baer Foundation in combating mental health issues cannot be overstated. Sidney Baer was a member of a wealthy and prominent family from the Midwest. While studying at Yale University, Sidney suffered a nervous breakdown and was diagnosed with schizophrenia. He never graduated from Yale due to the challenges and obstacles that his mental illness presented. With the help and advice of his friend and personal lawyer, Attorney George Handran, he established the Sidney Baer Foundation for the purpose of alleviating the suffering and loss of opportunities endured by the mentally ill. In 2007, in concert with the Boston Medical Center, the Trial Court received initial funding from the Baer Foundation and established the first mental health court in the Commonwealth in the Boston Municipal Court. http://www.baerfoundation.com/
There are presently seven mental health courts operating in the Commonwealth. The Boston Municipal Court Department holds weekly sessions in the Central, Roxbury and West Roxbury Court Divisions. The District Court Department operates mental health courts in Springfield, Cambridge, Plymouth and Quincy Courts.
Each court utilizes a team based and problem solving approach. The judge, probation officer, mental health clinician, prosecutor and defense attorney maintain their distinct roles, but work in a collaborative effort to monitor the individual participant’s progress in adhering to the terms of probation, in securing and maintaining treatment and in achieving recovery.
Eligibility for participation differs to a small degree among the mental health courts in the Commonwealth. Some Courts will accept defendants pre-trial with untried open matters. Several courts require a post disposition probationary status. Participation is voluntary. The Judge has authority to return the case to the traditional court system when there is a breach by the defendant of the program’s policies.
The process begins by a referral to the mental health court session. After consultation with a mental health clinician and the probation officer, eligibility is determined based upon the nature and circumstances of the offense, a psychiatric diagnosis, history of mental health treatment and the willingness of the participant to accept treatment and participate in the session. The clinician will then make a recommendation to the judge. Once accepted, each participant receives an individualized treatment plan. The participant is required to return to the court session regularly for a remedial review of the effectiveness of the participant’s individualized treatment plan and an evaluation by the court of any obstacles and impediments that interfere with the participant’s ability to receive and maintain mental health treatment. This ‘holistic’ approach is an important component to the session and it reinforces the message of the court to all participants that their lives have value and that the court is an invested partner in their recovery efforts.
CPCS Attorney David Shea, a public defender and mental health court practitioner maintains that, ”Criminal cases often implicate serious collateral consequences-apart from potential incarceration-including housing, employment, education, and child custody problems…….Many clients find this holistic approach novel to a courtroom setting and the result is a dynamic that often engenders a powerful motivator; hope.”
Presently, there are over 200 defendants participating in mental health courts in the Commonwealth. 25 % are female and 75% are male. Over 60 % of the participants report a co-occurring substance use disorder and over 50% report a history of homelessness. The most common mental health diagnoses are bipolar, schizophrenia and schizoaffective disorder. The racial breakdown of participants is 47% white and 37% black. From June 2015 to June 2016, 40% of the participants successfully completed the mental health court program. The average length of participation in a mental health session is 9-12 months.
It is evident that the future of mental health courts in the Commonwealth will see increased participation due to the Trial Court’s recognition of the importance of addressing the unique and specialized needs of the mentally ill. To that end, the Trial Court has engaged in a state wide ‘Community Justice Project’ to identify resources and programs that will divert individuals diagnosed with a mental illness or substance use disorder at key events or ‘intercepts’ from the justice system and direct them to behavioral health treatment. By acknowledging the benefits of treatment and rehabilitation in lieu of incarceration, the mental health courts extend a compassionate alternative and instill a sense of hope in a vulnerable population.
The success of mental health courts can best be summed up by the words of a recent graduate from the West Roxbury Court’s ‘Recovery with Justice Program’. He told the court, “This program has broken the chains that kept pulling me back to jail. Thank you for giving me back my life. With the treatment you have helped me get, I now have hope that I will be able to work and be a part of my daughter’s life and I will stay out of trouble. “
Appointed to the bench in 1993 b y Governor William Weld, Judge Kathleen Coffey has been First Justice of the West Roxbury Court for the past nineteen years. She is the Director of Specialty Courts for the Boston Municipal Court Department. In 2007, she established the first Mental Health Court, and in 2010, the Homeless Court held at the Pine Street Inn.
Voice of the Judiciary
Our country has been at war for almost 15 years. Deployments take a toll on soldiers and their families. Some get arrested because they suffer from Post-Traumatic Stress or traumatic brain injury and they self-medicate with alcohol and/or drugs. If those defendants are within the Boston Municipal Court Department (BMC) jurisdiction, the Boston Veterans Treatment Court (BVTC) may be an alternative to the regular court trial track.
I served as a Navy Intelligence Officer and had the honor of being attached to Special Operations Command, Korea (SOCKOR). My husband Richard Sinnott, a private attorney practicing in Boston, is a Lieutenant Colonel Judge Advocate in the Army Reserve. He deployed to Kuwait in 2003. My familiarity with military culture both by being a military officer and the spouse of a deployed soldier, and having worked with combat veterans, helps in my interactions with and understanding of veterans as the presiding judge of the BVTC.
Why do I say BVTC “may” be an alternative?
The BVTC focuses on high risk/high needs veterans facing serious charges where there is a nexus between their current problem and their military experience. Individual treatment plans are created for them and each veteran is assigned a mentor. Because the program is usually about
18 months of probation and involves intensive treatment and monitoring, it may not be appropriate for a veteran facing less serious charges.
Probation (which is often pretrial probation), consists of weekly court appearances that taper as the veteran progresses through five phases. Once a treatment plan is established, each week the veteran is tested for drugs and alcohol, must attend three Alcoholics Anonymous or Narcotics Anonymous meetings each week, meet weekly with a probation officer and have mentor contact.
How does a veteran get considered for the BVTC?
If a veteran is arraigned in the BMC Central Division, the case is automatically scheduled for the earliest Friday in the BVTC, for assessment of eligibility. If a veteran is arraigned in one of the other BMC divisions, the veteran’s attorney submits a referral and the case is scheduled for a status date in that same division 4 weeks later. During that time, the veteran is told to visit a BVTC session, given the participant handbook, and a clinical evaluation is scheduled to assess whether there is a nexus between their military service and current case and whether the BVTC can provide the appropriate treatment. (http://www.mass.gov/courts/docs/specialty-courts/veterans-treatment-court-referral-form-boston.pdf)
Because the BVTC session is a voluntary program, the veteran then has the option to opt in or go the normal trial track.
What are the benefits to the veteran?
For most defendants, their cases will resolve by dismissal. Suffolk District Attorney Daniel Conley supports such resolutions because, in his own words: “Veterans are asked to fight and die in defense of their country. But many aren’t given the tools to readjust to peacetime lives. As a result, they’re at a much greater risk of unemployment, substance abuse, and untreated mental illness, which all contribute to increased contact with the criminal justice system. So with Veterans Court, our goal is to help defendants overcome those challenges rather than be overcome by them.” Dismissals give them a better chance at employment and other opportunities. Most importantly, the veterans receive treatment monitoring and support in areas such as housing, employment, possible upgrades in military discharge status, and legal assistance in civil matters.
Who is on the treatment team and why should I trust that they would know what is best for the veteran?
Most team members have extensive military backgrounds and are committed to the BVTC mission: To provide veterans whose underlying service related challenges brought them into the justice system – with a tailored but flexible supervised treatment program that restores their dignity and pride and returns them to being law abiding, productive members of civilian society.
A unique and essential aspect of veterans courts is peer mentoring, described by Judge Robert Russell of New York, as the “secret sauce” for the success of veterans courts. Don Purington is the peer specialist/mentor coordinator for the BVTC and oversees mentoring for all five veterans courts in Massachusetts. Although he is the assigned mentor to several BVTC veterans, he is an unofficial mentor to them all.
Mr. Purington’s story is one of redemption. He is a combat veteran who served in the United States Marine Corps from 2005 – 2009 as a fire team leader and squad leader during combat operations in Iraq in 2006. Upon discharge, Mr. Purington was addicted to opiates and began breaking the law to obtain drugs. After detoxing in a jail cell, he was offered the opportunity for treatment and help putting his life back on track. He received inpatient treatment for more than a year and was able to move past his legal issues. A veteran served as a mentor to Mr. Purington, which started him on his path to working with veterans.
Mr. Purington connects with BVTC veterans by sharing his journey, which is a source of strength for them. As he explains: “Some of the most comforting words to someone who is at rock bottom are ‘I understand what you are going through.’ Had I not gotten the mentor that I did and the opportunity to get the help I needed I would be either dead or in jail. It has been 6 years since I started my journey of sobriety and I will continue to use my mistakes to try and help others.” A BVTC veteran described him as “… the most inspirational and biggest positive influence of them all. He is truly like a big brother to me, blood or not. I sincerely love and appreciate this man for everything! … I really hated disappointing him more than anyone.”
The gateway to the BVTC is through probation officer Geri Jurczak (email@example.com). After receiving the one page referral, the eligibility assessment begins. As part of that process, the veterans are drug and alcohol tested and must abide by the program requirements. Ms. Jurczak conducts home visits and offers referrals to the veterans’ families as needed. A veteran described his experience with Ms. Jurczak like this:
… I have been on probation once before and it made me feel as if I was being set-up for failure … [Ms. Jurczak] was the complete opposite of what I believed a probation officer to be… She was there for me whenever I had struggles or problems. … She was a huge part of my success and I owe her more than I can give. BVTC is very unorthodox compared to conventional courtrooms because they recognize the need to help veterans returning home from combat. It takes a very special person … to work with combat veterans. … I will forever be grateful for her help in bettering my life.
Suffolk Assistant District Attorney Brett Walker (firstname.lastname@example.org ) is assigned to the BVTC. A West Point graduate and a Ranger, who was awarded two Bronze Stars, ADA Walker has served for 12 years as a light infantry officer in the U.S. Army and the Massachusetts National Guard. An Army Major, he has deployed to Afghanistan and Iraq. He makes a habit of shaking hands with the defendants at each session.
Attorney Vanesa Velez of the Committee on Public Counsel Services (CPCS) regularly represents BVTC veterans (email@example.com). While providing zealous advocacy she understands the BVTC treatment approach.
Thomas Palladino, a licensed social worker, is the BVTC Veterans Justice Outreach Coordinator. He creates the treatment plans and is responsible for the initial assessments and continuing case management. The team meets weekly before the regular Friday session. Because the BVTC is a high risk, high needs court, Mr. Palladino frequently makes last minute changes to treatment plans. He has found immediate placement in detox or residential treatment programs when veterans have been in crisis.
All combat veterans can obtain VA benefits through the Boston Vet Center. Amy Bonneau, a Captain in the Massachusetts National Guard, who deployed to Kabul, Afghanistan in 2010, is a licensed social worker and works as a readjustment counselor at the Boston Vet Center.
John Quinn is a Veteran Outreach Coordinator for the Home Base Program (http://homebase.org) – a partnership with the Red Sox Foundation and Massachusetts General Hospital, which provides eligible veterans with world-class clinical care, fitness, wellness and family counseling. Mr. Quinn proudly served in the 101st Airborne Division, U.S. Army Military Police.
Paul Connor, a Captain in the Army National Guard, assists the BVTC with veterans who suffer a severe relapse. Early this year, Mr. Connor was asked by Sheriff Peter Koutoujian to implement the first Massachusetts correctional unit for incarcerated veterans or pretrial detainees. The Middlesex County Sheriff’s Housing Unit for Military Veterans (HUMV) allows veterans to share experiences and offers programs tailored to them.
The final team member is Assistant Clerk Magistrate Christopher Phillips, who served in the Marine Corps from 1984 –1997 and is currently a judge advocate major in the Army Reserve.
Judge Eleanor C. Sinott is the presiding judge of the Boston Veterans Treatment Court.
In Fisher v. University of Texas at Austin, 136 S. Ct. 2198 (2016) (“Fisher II”), the Supreme Court upheld the constitutionality of the University of Texas at Austin’s (“UT”) race-conscious admissions program. The 4-3 decision ended Abigail Fisher’s long-running equal protection challenge to UT’s policy. The decision surprised many observers after the Court’s earlier consideration of the case in Fisher v. University of Texas at Austin, 133 S. Ct. 2411 (2013) (“Fisher I”), in which the Court had seemed to establish a more demanding, and perhaps insurmountable, standard of review.
Fisher II gives new hope to universities seeking to employ race-conscious admissions policies to promote diversity. The decision reaffirms the framework of Grutter v. Bollinger, 539 U.S. 306 (2003), without restating Grutter’s prediction that affirmative action would no longer be necessary in 25 years. Fisher II declares that universities are owed “considerable deference” in articulating diversity goals and, by accepting UT’s showing on race-neutral alternatives, suggests more leeway for universities to develop narrowly-tailored policies geared to their specific circumstances.
In 2003, the Supreme Court in Grutter applied “strict scrutiny” analysis to a race-conscious admissions policy, holding that diversity is a compelling governmental interest that can justify the narrowly-tailored use of race in public university admissions. 539 U.S. at 326-27. Grutter upheld an admissions policy that sought to admit a “critical mass” of minority students by considering race as one factor among many in a holistic, individualized process, when doing so was necessary to achieve the educational benefits of a diverse student body.
Fisher first challenged UT’s policy after being denied admission in 2008. Under UT’s policy, most freshmen are admitted using a percentage plan that guarantees admission to Texas high school students in approximately the top 10 percent of their class. The remaining freshmen are admitted through a holistic review process that combines each applicant’s SAT score and grades with her “Personal Achievement Index” comprising numerous other factors including race. UT’s policy was designed to comply with Grutter.
Fisher did not qualify under the percentage plan and challenged only the policy’s holistic review component, arguing that it overstepped Grutter or, alternatively, that Grutter should be overruled. The district court granted summary judgment in favor of UT, and the Fifth Circuit affirmed. In Fisher I, the Supreme Court reversed in favor of Fisher, holding that the Fifth Circuit had applied an incorrect legal standard by giving too much deference to UT in considering the narrow-tailoring requirement. Fisher I, 133 S. Ct. at 2420-21. The Court remanded to the Fifth Circuit to engage in a new, and apparently more rigorous, examination of UT’s admissions criteria to see whether it was consistent with Grutter, stating that the “reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” Id. at 2420 (emphasis added).
On remand, the Fifth Circuit upheld the policy, Fisher appealed again, and the Supreme Court granted certiorari.
The Fisher II Opinion
In Fisher II, the majority opinion articulated three controlling principles. 136 S. Ct. at 2207-08. First, the use of race must withstand strict scrutiny. Second, if the university chooses to “pursue the educational benefits of student body diversity,” and articulates “a reasoned, principled explanation” for that choice, its conclusion that diversity serves its educational goals is entitled to judicial deference. Third, the university nonetheless bears the burden of proving that “race-neutral alternatives that are both available and workable do not suffice,” a determination to which “no deference is owed.”
The Court concluded, among other things, that the record established that UT “articulated concrete and precise goals” that mirrored the compelling interest in diversity that the Court had previously approved in Grutter. Id. at 2211. The Court concluded that “a reasonable determination was made that the University had not yet attained its [diversity] goals.” Id. at 2212.
Notably, although the record in the case was extensive, the decision did not declare that any particular type of evidence was necessary to demonstrate narrow tailoring.
The Court rejected Fisher’s emphasis on the purportedly race-neutral percentage plan, explaining that percentage plans, “though facially neutral,” “are adopted with racially segregated neighborhoods and schools front and center stage.” Id. at 2213. The Court then stated that “to compel universities to admit students based on class rank alone is in deep tension with the goal of educational diversity as this Court’s cases have defined it.” Id. at 2213-14.
Justice Alito dissented, criticizing the Court’s deference to UT without requiring UT to articulate specific objectives, such as numerical metrics for critical mass. Id. at 2215-43. This, he argued, made the narrow-tailoring inquiry “impossible.” Id. at 2222.
The Court’s opinion includes several caveats, including the explicit statement that UT’s program is sui generis. Id. at 2208. This language may limit the opinion’s value for prospective guidance.
Nonetheless, Fisher II appears to soften Fisher I’s standard for race-conscious admissions policies. The decision importantly concedes that universities—rather than the courts—are best positioned to assess the benefits of diversity on their campuses and how to achieve those goals. The opinion thereby eschews the Fifth Circuit’s focus on critical mass and how specifically UT had to define metrics for critical mass.
Fisher II confirms Grutter’s holding that a university’s pursuit of diversity can constitute a compelling government interest. Consistent with Grutter, a university must carefully evaluate how the benefits of diversity relate to its specific mission and circumstances. A university must show that any available and workable race-neutral alternatives are “insufficient” to meet diversity goals and, if it adopts a race-conscious policy, must utilize an individualized, holistic review such as that of UT, where race is but a “factor of a factor of a factor.” Id. at 2207.
Giving Universities Deference
In perhaps the most significant sentence for universities crafting admissions policies, the majority opinion states, “[c]onsiderable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.” Id. at 2214. The opinion thus recognizes that more than one policy might survive under this standard and that universities, like states, “can serve as ‘laboratories for experimentation.’” Id. Fisher II’s reasoning implies that universities have some flexibility in the narrow-tailoring analysis to adopt policies tailored to their specific goals.
Dean Richlin is a partner in the Litigation and Administrative Departments at Foley Hoag LLP. Sarah Burg is a litigator in the firm’s Intellectual Property Department.
On June 3, 2016, Governor Baker signed into law House Bill No. 4333, An Act to Improve Public Records (St. 2016, c. 121) (the “Act”). Described by the Governor as a “new way of doing business,” the Act is the first major overhaul of Massachusetts’ Public Records Law since 1973. The new law is intended to improve access to public records, address administrative challenges faced by records custodians (particularly municipalities) responding to expansive public records requests, and promote cooperation between requestors and custodians. Among the most significant new requirements, which will take effect on January 1, 2017, are:
- Custodians of public records must designate a “public records access officer.”
- Digital records are to be produced whenever available.
- New statutory deadlines for responses to requests.
- New limits on fees for producing records.
- Availability of attorney’s fees and punitive damages.
The new law also requires the Supervisor of Public Records of the Office of the Secretary of the Commonwealth to create forms, guidelines, and reference materials to assist public records requests and responses. Act, § 7, inserting G.L. c. 66, § 1A. The Supervisor’s current regulations are being updated to reflect the new law. (See Proposed 950 CMR 32.00). This article summarizes several significant provisions of the new law.
Impetus for the New Public Records Law
The new Public Records Law was passed on the heels of a report card by the Center of Public Integrity that gave the Commonwealth a D+ for government accountability and transparency. The report found that “routine records, from agency emails to internal datasets, can take weeks or months to obtain from state agencies, at costs running from a few hundred dollars to the not-unheard-of multi-million-dollar bills sent to some requesters.” Critics also complained that the law does not apply to the courts or the legislature, and argued that the statutory exemptions for certain agency records hindered government oversight. Agencies and municipalities, in contrast, expressed concerns about overly burdensome records requests and insufficient personnel and technical support to manage the process efficiently. The new law focuses on administrative and procedural aspects, and leaves largely unchanged the categories of documents and entities subject to the law.
Requirements for Making a Public Records Request
Under the new law, records custodians must respond to a request only if:
- the request reasonably describes the public record sought;
- the public record is within the possession, custody or control of the agency or municipality that received the request; and
- the custodian receives payment of a reasonable fee as set forth in subsection (d).
Under the old law, a request could be in oral or written form. Written requests were recommended if there was substantial doubt as to whether the records requested were public, or if an appeal was contemplated. See 950 CMR 32.05(3). The Supervisor’s proposed regulations expressly permit oral requests; the new law does not expressly address the issue. See Proposed 950 CMR 32.07(1)(a); Act, § 10, amending G.L. c. 66, § 10(a).
Duties of the Newly-Created Records Access Officer
The new law requires records custodians to designate one or more employees as a “records access officer,” to coordinate responses to and facilitate resolution of requests. See Act, § 9, inserting G.L. c. 66, § 6A. The records access officer must help identify the documents requestors seek; prepare guidelines to enable informed requests about the availability of records; and document all requests, including the request and response dates, the time spent fulfilling each request, fees charged, and details of all appeals. The guidelines must be posted on the custodian’s website and must list the categories of public records that the custodian maintains. Id.
When responding to a public records request, a records access officer must help facilitate resolution of the request, including by:
- identifying any public records or categories of public records not within the agency or municipality’s control;
- identifying the agency or municipality that may have the requested records;
- identifying any records (or portions thereof) that the custodian intends to withhold, and providing the specific reasons for such withholding, including the specific exemption(s) relied upon;
- identifying any public records (or portions thereof) that the custodian intends to produce, and, if applicable, providing a detailed explanation of why additional time is required to produce the records; and
- suggesting a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably.
Act, § 10, amending G.L. c. 66, § 10(b). Records are to be provided by electronic means when possible, unless the requestor is unable to receive or access the records in a usable electronic form. Act, § 9, inserting G.L. c. 66, § 6A(d).
Agencies—but not municipalities—must provide on their websites searchable electronic copies of many public records such as agency decisions, annual reports, winning bids for public contracts, public meeting notices and minutes, and “information of significant interest that the agency deems appropriate to post.” Act, § 14, inserting G.L. c. 66, § 19(b). These provisions, combined with the detailed record-keeping requirements imposed by the Act concerning the disposition of public records requests, see Act, § 9, inserting G.L. c. 66, § 6A(e), are intended to improve the response process significantly.
New Deadlines for Responding to Public Records Requests
The Act establishes new deadlines within which custodians must respond to public records requests. The new deadlines attempt to balance the interest in timely disclosure of public records with the agencies and municipalities’ administrative interests.
The old version of the Public Records Law contained two related, but not altogether harmonious, provisions concerning the response time for a public records request. Chapter 66, § 10(a) provided that a custodian “shall, at reasonable times and without unreasonable delay” permit the inspection and copying of public records, while § 10(b) specified that a custodian “shall, within ten [calendar] days following receipt of a request for inspection or copy of a public record, comply with such request.” G.L. c. 66, § 10(b); Secretary of the Commonwealth, Division of Public Records, A Guide to the Massachusetts Public Records Law, 1, 6 (2013). The Supreme Judicial Court has interpreted these provisions to mean that custodians must always respond to public records requests “without unreasonable delay,” and that producing a record within ten days is “presumptively reasonable.” Globe Newspaper Company v. Comm’r of Education, 439 Mass. 124, 130-31, 133 n.13 (2003). Thus, under the old version of the law, a delay beyond ten days could be “reasonable” if a custodian demonstrated that the “magnitude or difficulty of the request and the other responsibilities of the agency” prevented it from satisfying the ten-day deadline. Id. at 132 n.12.
The new law takes a different approach: it permits custodians more than ten days to respond to certain types of requests but limits the duration of permissible extensions of time to respond. Section 10(a), as amended, provides that a records access officer shall “at reasonable times and without unreasonable delay permit inspection or furnish a copy of any public record … not later than 10 business days following the receipt of the request.” Act, § 10, amending G.L. c. 66, § 10(a). If the “magnitude or difficulty of the request, or the receipt of multiple requests from the same requestor” makes an agency unable to respond within the ten-day period, the custodian must identify a “reasonable timeframe” for compliance. The outer limits of an agency’s response “shall not exceed 15 business days following the initial receipt of the request for public records,” and a municipality’s response “shall not exceed 25 business days” following the initial receipt of the public records request. Id., amending G.L. c. 66, § 10 (b)(vi).
Further extensions may be granted by the Supervisor of Public Records if the magnitude or difficulty of a request (or the receipt of multiple requests from the same requestor) unduly burdens the agency or municipality and prevents timely compliance. In such cases, the Supervisor may grant an agency a “single extension” not to exceed 20 business days and a municipality a “single extension” not to exceed 30 business days. Act, § 10, amending G.L. c. 66, § 10(c).
The new law does not expressly address two questions likely to be faced by courts. The first is whether a custodian who has not produced documents within the maximum period allowed under the Act is entitled to prove, as under the current law, that there has been no “unreasonable delay” because of the scope of the request and the resources needed to achieve compliance. The answer to that question may turn on whether the specified durations of extensions of time permitted under the Act, including the express reference to the Supervisor of Records’ authority to grant just a “single extension,” supplant potentially more permissive interpretations of the term “without unreasonable delay.” See generally Comm’r of Education, 439 Mass. at 130-31.
The second likely question concerns the use of public records requests by litigants who sue or are sued by the government. Unlike discovery requests, public records requests are not cabined by principles of relevance, nor are custodians permitted to consider a requestor’s motivation in asking for a document. See 950 CMR 32.05 (5). Public records requests by litigants who seek extra-judicial discovery might require courts to determine whether the deadlines established by the Act are subject to modification based on a case-specific application of the “without unreasonable delay” standard. The Supervisor’s Proposed Regulations anticipate this issue by providing that a requestor’s administrative appeal may be denied if “the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation.” Proposed 950 CMR 32.09(j)(1).
Permissible Charges for Public Records
A custodian may assess a reasonable fee for the production of a public record unless the records are freely available for public inspection or unless the custodian failed to respond to the request within the required ten business days. Act, § 10, amending G.L. c. 66, §§ 10(d) and 10(e). The “reasonable fee” is limited to the actual cost of reproducing the record. Id., § 10(d)(i). The actual cost of any storage device or material provided may be included as part of the fee, but the charge for standard black-and-white paper copies or printouts of records cannot exceed 5 cents per page for copies or printouts. Id. Formerly, records custodians could charge between 20 and 50 cents per page, depending on whether the copy was a photocopy, microfilm or microfiche, or computer printout. See 950 CMR 32.06(a), (b), (d).
The new law also permits a custodian to charge for time in excess of four hours spent locating, retrieving, copying and, if necessary, redacting the records. The fee may be charged at an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill to perform the tasks, not to exceed $25 per hour. Act, § 10, amending G.L. c. 66, § 10(d)(ii). Municipalities have additional leeway. Those with populations of less than 20,000 may charge for all such time, while those with populations of more than 20,000 may charge for time in excess of two hours. Agencies and municipalities may seek the Supervisor’s approval to charge more than $25 per hour if (a) the request is for a commercial purpose or (b) the fee was necessary and reasonable to prudently perform the tasks and was not intended to prevent access to public records. Id., amending G.L. c. 66, § 10(d)(iv).
The Recovery of Attorneys’ Fees and Punitive Damages
The new law creates a presumption in favor of awarding attorneys’ fees and costs if the requestor obtains relief either through judicial order or consent decree, or if the agency provides the documents after a complaint is filed against it. See Act, § 10, inserting G.L. c. 66, § 10A(d)(2). There is no presumption in favor of attorneys’ fees in cases where:
- the supervisor of records previously ruled in the custodian’s favor;
- the custodian “reasonably relied upon a published opinion” by the attorney general or by an appellate court of the Commonwealth that was “based on substantially similar facts”;
- the request was “designed to harass or intimidate”; or
- the request was “not in the public interest and made for a commercial purpose unrelated to disseminating information to the public about actual or alleged government activity.”
Under the new law, the Superior Court also may assess punitive damages between $1,000 and $5,000 against a defendant custodian if the custodian did not act in good faith in failing to timely furnish a requested record. Act, § 10, inserting G.L. c. 66, § 10A(d)(4). Any damages will be deposited into the Public Records Assistance Fund and may be used to provide grants to municipalities to foster best practices for increasing access to public records and facilitate compliance with the public records law. Act, § 6, inserting G.L. c. 10, § 35D.
If the amendments achieve their intended purpose, the “new way of doing business” under the Public Records Law should improve communications between requestors and records custodians, increase the number of public records available online, establish enforceable timeframes for producing public records, impose cost controls to reduce excessive fees, and enhance enforcement efforts by allowing attorneys’ fees awards.
 Among the provisions of the Act not addressed by this article are (a) the creation of a special legislative commission to “examine the constitutionality and practicality of subjecting the general court, the executive office of the governor and the judicial branch to the public records law” and to issue a report by December 30, 2017, Act, § 20(c); (b) a new exemption for personal emails of public employees, Act, § 4, amending G.L. c. 4, § 7, cl. 26(o) and (p) and Act, § 9, inserting G.L. c. 66, § 6A(c); and (c) a provision expressly applying the Public Records Law to the Massachusetts Bay Transportation Authority Retirement Board but granting the Board an exemption for trade secrets or commercial or financial information that relates to the investment of public trust or retirement funds, Act, 14, inserting G.L. c. 66 §21.
 “Commercial purpose” is defined as the “sale or resale of any portion of the public record or the use of information from the public record to advance the requestor’s strategic business interests in a manner that the requestor can reasonably expect to make a profit, and shall not include gathering or reporting news or gathering information to promote citizen oversight or further the understanding of the operation or activities of government or for academic, scientific, journalistic or public research or education.” Act, § 10, inserting G.L. c. 66, § 10(d)(ix).
Jonathan M. Albano is a partner at Morgan Lewis & Bockius LLP.
Emma D. Hall is an associate at Morgan Lewis & Bockius LLP.
May a couple’s childrearing practices, which are not illegal and are deeply rooted in their sincere religious convictions, disqualify them from becoming foster and pre-adoptive parents? In the closely watched case Magazu v. Department of Children and Families,[i] the Justices unanimously answered “yes.” Here, I argue that while Magazu may have been correctly decided, the Court’s analysis has troubling implications for the expansion of agency power.
Path to the SJC
Gregory and Melanie Magazu had two biological daughters but wanted a larger family. Concerns about Melanie’s health led them to apply to become foster and pre-adoptive parents. The couple seemed ideally suited to foster and then adopt a child who was in the Department of Children and Families’ (“DCF”) care – until they revealed that they occasionally used physical punishment on their biological children. Believing as a matter of religious faith in the maxim “spare the rod, spoil the child,” Greg or Melanie, on the few occasions when one of their daughters engaged in “a continuous pattern of disobedience,” would spank the child on the buttocks by hand in the privacy of the girl’s bedroom.[ii]
DCF regulations prohibit the use of corporal punishment on a foster child.[iii] Accordingly, the Magazus were prepared to enter into a written agreement not to use corporal punishment on any foster child placed in their home and never to physically punish one of their biological children in the presence of the foster child. The couple would not, however, and for religious reasons could not, agree to forego physical discipline of their biological children. Citing their refusal, DCF denied the Magazus’ application to become foster and pre-adoptive parents. The Magazus appealed. At the administrative hearing, DCF’s witnesses testified that foster children typically have been subjected to abuse and neglect and could be re-traumatized by direct or indirect exposure to corporal discipline. DCF acknowledged that it had no written policy disqualifying parents who physically discipline their biological children from becoming foster parents, but maintained that such was its unwritten policy and practice. First the hearing officer, and then a Superior Court judge, affirmed DCF’s denial of the Magazus’ application. The Supreme Judicial Court transferred the case sua sponte from the Appeals Court.
The Justices faced two questions of law. First, was DCF’s decision arbitrary and capricious, based on an irrational interpretation of its statutory and regulatory authority, and/or ungrounded in substantial evidence, in violation of DCF’s statutory and regulatory mandates? Second, by conditioning the couple’s receipt of a government benefit on their renunciation of their religious practices, did DCF violate the Magazus’ free exercise rights under the Federal and Massachusetts Constitutions?
The Justices dismissed both claims. The Court deferred–almost without scrutiny–to DCF’s policy of not placing foster and preadoptive children in homes where parents physically discipline their children. Notwithstanding that the policy was “not . . . articulated in express terms,” the Court held that “such a policy falls squarely within the parameters of the department’s enabling legislation and companion regulations, and is rationally related to the department’s objectives in the placement of foster children.”[iv] The Court next applied the familiar “balancing test” of Wisconsin v. Yoder[v] and Attorney Gen. v. Desilets[vi] to the constitutional claim. The Court concluded that DCF had substantially burdened the Magazus’ practice of their sincere religious convictions by presenting them with an untenable choice: the couple could become foster parents by abandoning their religiously-motivated practices, or they could continue their faith-based disciplinary practices and abandon any hope of becoming foster and pre-adoptive parents. Nonetheless, the Court held that the substantial burden on the Magazus’ constitutional rights was outweighed by the State’s “first and paramount duty,” rooted in its ancient parens patriae authority, to protect children from actual or potential harm.[vii] The decision shut the door on the Magazus’ hopes to foster and adopt children through DCF.
Judging By Unwritten Rules
It is easy to assume that Magazu was correctly decided. Both common sense and compassion argue for taking every precaution to protect emotionally fragile children from further harm. Nonetheless, the Court’s reasoning is troubling on at least two fronts.
First, the Court extended unwarranted deference to DCF’s “unwritten” policies and procedures. A fundamental objective of the Administrative Procedures Act, G. L. c. 30A, which governs DCF’s actions, is to ensure the agency’s objectivity, accountability, transparency, predictability, and uniformity in its application of policies and other practices.[viii] Permitting DCF, or any agency, to rely on unwritten rules severely limits judicial oversight of agency discretion. How does a court distinguish between a legitimate unwritten policy and post hoc rationalization? How is a court to know, for instance, when the unwritten rule was adopted, by whom, for what reason, and how it was communicated?
The Court’s deference to DCF’s unwritten policies rested on the thinnest of precedents. In both cases on which the Court relies, Anusavice v. Board of Registration in Dentistry[ix] and Arthurs v. Board of Registration in Med.,[x] the agency’s position on the unethical or criminal characteristics of the conduct at issue could readily have been foreseen from prior published agency decisions. Here, the Magazus’ disqualifying conduct was legally permissible: within limits, one may spank one’s child. See, e.g., Commonwealth v. Dorvil; Cobble v. Department of Soc. Services.[xi] The Magazus had no notice that their lawful conduct would disqualify them to be foster parents.
Justice Cordy’s concurrence, joined by Justices Botsford and Duffly, gives voice to this concern about unfettered deference to unwritten agency policy.”[xii] Justice Cordy begins by acknowledging two stark realities: the increasing need for good Massachusetts foster homes in light of DCF’s growing caseload, and “the highly publicized tragedies of the last two years regarding children under the supervision of the department in foster homes,” including a recent horrific case in the western region where the Magazus reside.[xiii] He also reiterates the uncontested evidence demonstrating “that in every respect (but for one) [the Magazus] were ideal foster and preadoptive candidates.”[xiv] In light of the department’s woeful record of investigating recent notorious cases of foster placements, where the warning signs of danger were writ large, Justice Cordy wrote that one is “left to wonder . . . whether the high standards and intensive assessment and scrutiny applied to the plaintiffs is the exception rather than the norm,” or “whether the real problem in this case was not so much the department’s concern for child safety, but rather a disagreement with the plaintiff’s beliefs regarding the upbringing of their children.”[xv] He queries whether, whatever the unwritten licensing standard actually is, it will be uniformly applied.[xvi] If an agency may impose significant burdens on individuals based on unwritten policies, the concurrence suggests, meaningful judicial review of the conduct of State bureaucracies is all but eviscerated.
The Paternalistic State
A second reason for concern in Magazu is the Court’s reliance in the parens patriae doctrine to justify burdening the Magazus’ constitutional rights. The doctrine of parens patriae endows the State with inherent authority to protect the vulnerable, particularly children, from harm. See, e.g., Petition of Catholic Charitable Bureau of the Archdiocese of Boston, Inc., to Dispense with Consent to Adoption.[xvii] Massachusetts appellate courts have invoked the doctrine in countless child-related cases.
Parens patriae, however, like its kindred “best interests of the child” standard, is a doctrine increasingly criticized as inchoate and infantilizing.[xviii] Recently, in Guardianship of L.H.,[xix] a case involving substituted judgment for an incompetent adult, Judge Agnes (dissenting) implored courts to “be cautious and critical of signs of paternalism legitimized by the parens patriae doctrine, where State actors purport to have an absolute understanding of what is in the best interests of an individual, whose liberty, dignity and privacy are at issue, and whose voice is muted by the swift and overriding authority of court-appointed professionals.”[xx] Judge Agnes’ dissent is particularly cautionary for Magazu, where DCF presented no hard data on actual or prognostic harm, where the prospective foster parents pledged to abide by DCF regulations concerning the discipline of children placed in their care, and where their credentials were otherwise stellar.
Of course, the Magazus are not the only parents ensnared here by parens patriae. The decision summarily disqualifies an entire class of people whose religious convictions lead them to physically discipline their children from even becoming foster and preadoptive parents. Regardless of one’s views on the corporal punishment of children, the use of parens patriae in Magazu to preclude any foster child from finding love and care in a loving family invites speculation about just what the limits of parens patriae, if any, may possibly be.
Magazu closes the door to foster parentage to the Magazus and all those similarly situated. How widely it opens the door to bureaucratic over-reach will be tested in the line of cases that follow.
Sandra E. Lundy is an appellate and domestic relations litigator at Tarlow, Breed, Hart & Rodgers, P.C., Boston. She is Board Member of the Women’s Bar Association and a former member of the BBA Family Law Section Council. Attorney Lundy received her J.D. from Yale Law School and her Ph.D. from Columbia University.
[i] 473 Mass. 430 (2016).
[ii] Id. at 433.
[iii] See 110 Code Mass. Regs. §§ 7.104 (1) (q) and 7.111(3).
[iv] 473 Mass at 440-441.
[v] 406 U.S. 205 (1972).
[vi] 418 Mass. 316, 321-323 (1944).
[vii] 473 Mass at 445-446. See also 418 Mass at 321-323.
[viii] See, e.g., G. L. c. 30A, §§ 2-6.
[ix] 451 Mass. 786, 795 (2008).
[x] 383 Mass. 299, 312-313 (1981).
[xi] 472 Mass. 1 (2015); 430 Mass. 385 (1999).
[xii] 473 Mass. at 446-449 (Cordy, J., concurring).
[xiii] Id. at 448.
[xiv] Id. at 447..
[xv] Id. at 448.
[xvi] Id. at 448-449.
[xvii] 392 Mass. 738, 740-741 (1984).
[xviii] See, for example, Charlow, Awarding Custody: The Best Interests of the Child and Other Fictions, 5 Yale L. and Pol’y Rev. 267, 269-273 (1986), available at http://digitalcommons.law.yale.edu/ylpr/vol5/iss2/3.
[xix] 84 Mass. App. Ct. 711 (2014),
[xx] Id. at 734.