Access to Justice: Reflections on Chief Justice Gants

by Susan M. Finegan

Viewpoint

It was a privilege to partner so closely with Chief Justice Gants on access to justice initiatives over the past ten years, having served with him for ten years as a member of the Massachusetts Access to Justice Commission (commission), and then as his commission co-chair.  Throughout his time on the Supreme Judicial Court (SJC), he cared so deeply about access to justice, constantly thinking strategically about ways to make the civil justice system more accessible and fair.  Soon after his appointment as an associate justice of the SJC, Chief Justice Marshall approached him to become the co-chair of the commission.  This new role was his first engagement with civil legal aid and access to justice issues; true to form, he rolled up his sleeves to learn as much as possible, and energetically set to work.  Four years later, during the appointment process for the Chief Justice position, he filled at least two pages of his application describing the various commission projects on which he collaborated with so many during his first years on the commission.  In fact, in answering the judicial application question, “What are you most proud of?,”  he listed his work as co-chair of the commission first.  Certainly he did not lack for other professional achievements in his decades-long, storied career as a trial lawyer and trial and appellate judge, but his commission work clearly embodied the essence of what was truly important to him, as a judge and a person.  

His emphasis on collaboration and teamwork was one of the hallmarks of his commission work.  Throughout his tenure as co-chair, he encouraged people to work with him and engaged deeply with them – applying his laser focus and astonishing work ethic to every project.  He relished working with the impressive and committed people of the commission, many of whom he had not met before joining, and likely would never have met had he not been asked to take on the co-chair role.  He made the work enjoyable, too, by connecting with people on a human level, not just as Chief.  He mixed his dry sense of humor with a dizzying familiarity of outdated cultural references and an encyclopedic knowledge of sports.   

During his Chief Justice nomination period, he spoke several times about life lessons learned from his parents.  The first was from his father, a French and German wine salesman to restaurants and liquor stores in New York.  His father was always mindful of the concept of continued performance, saying often, “They don’t care what you did last year; they care what you are going to do this year.”  The Chief Justice took that advice to heart in all of the work that we did together.  He was an energetic man of action – on the commission, as Chief Justice, and nationally.

On the commission, for the better part of the last decade, he pushed us to be a “working” commission, transforming the organization into a more proactive organization.  Every summer, he loved holding commission retreats at his house to develop a strategic plan of action for the coming year.  He encouraged us in those meetings to think deeply with him about the important issues we faced, insisting that we left the retreat with three or four actionable goals that we could achieve by year’s end, and, inevitably, with an overflowing bag of leftover muffins and sandwiches. 

He would often say to me that the commission needed to do things, not just create reports to have them “collect dust on shelves.”  So, when we did produce reports, they had to have a purpose.  A prime example of this is a report we worked on together four years ago, the Justice For All Strategic Action Plan.  This project involved putting on paper a vision for the how the courts could transform how they handled those case types – family law, housing law, and consumer debt – where a majority of the litigants were unrepresented.  We were one of the first states to work on such a project, so there was no blueprint for how it was supposed to be framed.  We spent a year conducting outreach, convening committee meetings, and holding retreats.  Then the time came, around Thanksgiving, to start drafting.  When the consultant we had hired to produce the first draft left the project unexpectedly, the Chief Justice did not miss a beat: he just rolled up his sleeves with a small team of us and started drafting.  Then, as any experienced appellate judge would do, he started editing, and then continued editing, and editing some more.  I never admitted this to him, but I was quite satisfied with the report on the twentieth round of edits, but he insisted that we continue, through Christmas Eve, to round twenty-five.  The action-oriented plan we finalized has served as a blueprint for much of our commission’s work for the last four years, and will for the years to come.

He also used his role as co-chair of the commission to advocate for changes in the court system.  For example, several years ago, he asked commissioners to draft a report on a relatively new concept established by a few other states called “court service centers,” which could assist unrepresented litigants.  That report, authored by commissioner (and former BBA president) Tony Doniger, helped lay the groundwork for the court to fund two pilot court service centers the following year.   Likewise, the Chief leaned on the commission at the start of the COVID-19 pandemic, and the resulting court building closures, to provide constructive feedback on the court user experience during that time. 

He carried his passion for access to justice through to his work on the SJC.  He used his judicial role to ensure that the voiceless in the court system had a voice.  And he availed himself of every tool at his disposal, including: drafting opinions that impacted low income litigants; making rule changes that were equitable for all litigants, including the unrepresented; and expanding the court budget to increase the number of court service centers to assist more unrepresented litigants.  He used his many speaking opportunities, such as the annual State of the Judiciary, to advocate for the racial justice, civil rights, criminal justice reform, and access to justice, issues about which he cared deeply.  As he observed in his most recent State of the Judiciary address:

Until we create a world in which all who need counsel in civil cases have access to counsel, we must do all we can to make the court system more understandable and accessible for the many litigants who must represent themselves.

He was also a man of action on the national stage.  As a dynamic member and leader of the Conference of Chief Justices and of the Justice For All Initiative, he deftly pressed other state courts to make justice more accessible to all.  He created conference agendas and suggested keynote speakers to have other judges think about issues impacting those marginalized by the justice system.  He also drafted policy resolutions addressing access to justice, consumer debt, and racial justice.  Then, he used his political savvy to figure out the best way to ensure they were adopted, which often meant strategically asking someone else to take the lead in promoting the resolution.  In his application to be considered for Chief Justice, he said:  “I would like to believe that, if named as Chief Justice, I could play a national leadership role in advocating for access to justice, because I think Massachusetts is becoming a national leader in exploring innovative ways to provide access to all.”  He lived out that aspirational goal through his actions and words every day he served as Chief Justice.

Another life lesson he shared during his nomination process was from his mother, who judged everyone by how they treated others.  The highest praise she could give to a person of accomplishment was that he “was a regular guy.”  As in, “that Jonas Salk invented the polio vaccine, but he was just a regular guy.”  He took that advice to heart in the way that he focused on how a typical court user would experience walking through the courthouse doors.  In fact, he had a favorite hypothetical litigant, Mrs. Alvarado, a low income single mother of two who lived with her disabled mother.  He used this example to educate himself, and others, to better understand how she would experience the courts in her family’s high stakes eviction process.

Living his mother’s credo, as the Chief Justice, he could have stayed in his ornate office on the second floor of the Adams Courthouse, and bask in his many accomplishments, yet he chose to venture out, physically and emotionally, to focus on those in our community who did not have access to such privilege.  He felt a great responsibility as Chief Justice and as the leader of the court system to try to understand what it was like to come to court with no attorney, with no facility with language, with insecure immigration status, or with no access to technology.  He was especially concerned about the “court user experience” during his last seven months, during the pandemic, when access to court buildings was closed to most litigants and self-represented litigants had to figure out how to find and use remote court systems.  He valiantly worked with other court leaders to address the many challenges the court system faced.  He sought out feedback – the good and the bad – to make improvements where he could, noting that it was imperative for the court to know what was happening on the ground. 

He continued to think about those litigants in the final months, and moments, of his life, when he focused almost exclusively on the looming eviction crisis resulting from the pandemic and the ensuing economic recession.  He had previously described this eviction crisis as “the greatest access to justice challenge of our lifetime.”  On the morning of his death, the Chief Justice and I spoke for more than a half hour about his deep concerns on the eviction front, strategizing on solutions as we often would.  I take some solace in the fact that he spent the last hours of his incredible life using the gift of his intellect and the privilege of his power as Chief to help the many desperate people impacted by this pandemic.  

In one of his last speeches as Chief Justice, at the Access to Justice Fellows “graduation” event this past June, he quoted from the opening lines of Charles Dickens’ The Tale of Two Cities, which he said described the first months of the pandemic:

It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair …

His examples of the “worst of times” in that speech were, of course, numerous – including the pandemic itself, widespread economic insecurity, and systemic racism.  He noted, however, that there was an undercurrent of the “best of times” in that the pandemic presented an opportunity for the court system – and, indeed, for all of us – to begin to “transform ourselves in ways that we never really have had to do before.”  It was a time, “in which not only do we need people’s commitment, but also we need people’s imagination, to find new ways to do things,” collectively and collaboratively.  The Chief further noted that, even though the times were challenging, “we will emerge from this stronger.”  I must admit that it will be much harder to emerge from this stronger without his indispensable leadership.  I also know that, more than anything else, he would insist that we all continue to do our part to provide greater access to justice for all because there is still so much unfinished work.

I’ll close this reflection with a nod to his mother: “that Ralph Gants was a brilliant jurist; a national voice for access to justice; an indispensable leader of the court system; a beloved figure to so many yet also a great friend to those close to him; but, most of all, a regular guy.”

Susan M. Finegan is a litigation partner and Chair of the Pro Bono Committee at Mintz.  As the firm’s pro bono partner, she serves as lead counsel on numerous high profile pro bono litigation matters and oversees the 300+ pro bono matters throughout the firm.  Sue is active on many boards and commissions, including as a member and current co-chair of the Massachusetts Access to Justice Commission.


Honoring Chief Justice Ralph Gants

by Hon. Jay Blitzman (Ret.)

Viewpoint

Celebrating the visionary legacy of Chief Justice Ralph Gants demands consideration of his commitment to access to justice and achieving racial and ethnic equity, particularly for marginalized communities. The Chief understood the need to address issues involving youth through a developmentally appropriate lens and the reality that many children and families are affected or involved in both child welfare and juvenile justice systems.   

In his keynote address at the Second Annual Massachusetts Criminal Justice Reform Coalition Summit on March 16, 2015, less than a year after becoming Chief, Justice Gants emphasized that sentences should be proportionate, no greater than necessary, and designed to help the offender “get past the past.”[1]  “In medicine, there is a principle that a doctor should inflict no more pain and furnish no more medication than is necessary to treat the patient, and we need to act on a comparable principle in sentencing.” In his annual State of the Judiciary address in October 2015, Chief Justice Gants amplified his previous observations by noting that, “in a criminal case, problem-solving means not only adjudicating the question of guilt or innocence regarding crimes already committed; it also means crafting a fair and proportionate sentence that is designed to reduce the likelihood of recidivism and to prevent future crimes.” Given what we have learned about the maturational arc of adolescence and emerging adults, late adolescents between the ages of 18-25, the Chief’s observations are particularly relevant. As the noted lawyer and civil rights advocate Bryan Stevenson has observed, each one of us is more than the worst thing we have done.  The Chief’s admonitions are so important that they are cited in the report of the Juvenile Court Dispositional and Sentencing Best Practices Committee which I was privileged to chair.   

The Chief’s understanding of adolescent development and the importance of a fair and proportional  approach which achieves rehabilitative goals while best protecting the public was a theme of his jurisprudence. In Commonwealth v. Hanson H., 464 Mass. 407 (2013), he wrote the majority opinion addressing the issue of whether a judge is required to order G.P.S. monitoring for a juvenile who have been adjudicated of a sex offense as defined by G.L. c. 6 § 178C. Then Associate Justice Gants observed that it was not apparent that the legislature intended to apply mandatory G.P.S. supervision and “eliminate the discretion granted to juvenile court judges to render individualized dispositions consistent with the best interest of the child.” “We also conclude,” he wrote, “that where the legislature has established the statutory principle that as far as practicable juveniles should be treated not as criminals, but as children in need of encouragement and guidance (G.L. c. 119 § 53), we will not interpret a statute affecting juveniles, to conflict with this principle in the absence of clear legislative intent.” In reaching this conclusion, Justice Gants emphasized that our juvenile system is primarily rehabilitative.  In recognizing the adverse effects of G.P.S. monitoring on normative socialization and school functioning, he stated that “We have recognized that G.P.S. monitoring is inherently stigmatizing.”

The Chief’s insight into the stigmatizing collateral consequences of a juvenile record was also evidenced in Commonwealth v. Humberto H., 466 Mass. 562, 572 (2013), which authorized the juvenile court to allow pre-arraignment motions to dismiss in the absence of a finding of probable cause. In allowing a motion to dismiss prior to arraignment in such circumstances, Justice Gants noted that after arraignment a juvenile’s name and charge become part of the permanent Court Action Information record (C.A.R.I.) and may not be expunged, Gavin G. v. Commonwealth, 459 Mass. 470  (2002). The Chief cited Magnus M., 461 Mass. 459, 461 (2012), which allowed juvenile court judges to continue cases without a finding after jury adjudications.  The juvenile system “is primarily rehabilitative” and  “[p]rotecting a child from the stigma of being perceived to be a criminal and from the collateral consequences of a delinquency charge is important, even more important where there is no probable cause.” Access to juvenile and criminal records has been increasingly recognized as a punitive badge which, absent a much more robust model of record expungement or sealing than currently exists, becomes an eternal punitive badge. See e.g., Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (The New Press 2012, 2016).

Chief Justice Gants again displayed fealty to the medical model of limiting the dose and letting an offender get past the past in Commonwealth v. Henry, 475 Mass. 117 (2016), a criminal case involving restitution.  In this case, the opinion crafted by the Chief held that, in determining  restitution, a judge must make a finding regarding a defendant’s ability to pay as well as an assessment of loss by the victim. Of particular note is that probation may not be extended for inability to pay as doing so “subjects the probationer to additional punishment solely because of his or her poverty …. [a] judge may not extend the length of probation where a probationer violated an order of restitution due solely to an inability to pay.” This holding is particularly consequential for juveniles who rely on parents, guardians, or interested adults to support them.

In re: Care & Protection of Walt, 478 Mass. 212 (2017), involved a case in which Chief Justice Gants concluded that prior to the Department of Children and Families (DCF) removing a child from a parent’s care, the department take reasonable efforts before having the ability to justify the removal. This case reflects the Chief’s jurisprudence seeking to minimize unnecessary state intervention, which is especially important during the Covid-19 crisis. Prior to Walt, the orthodoxy had focused on Art. 30 separation of power case law limiting challenges to DCF custody to abuse of discretion. However, the Chief’s analysis now requires more rigorous inquiry into what reasonable efforts have been made to keep children with caretakers prior to removal and permits juvenile court judges to exercise equitable authority to order DCF to take reasonable remedial efforts to diminish the adverse consequences of failure of the department to having made reasonable efforts prior to removal.

In Lazlo L. v. Commonwealth, 482 Mass. 325, 328-330 (2019), the Chief authorized the retroactive application of 2018 juvenile justice reforms allowing dismissal of first offense crimes for juveniles carrying sentences of six months or less. He emphasized that “the Legislature understood that children who enter the juvenile system have a higher risk of re-offending for the remainder of their lives and … their risk of recidivism is greater the earlier they enter the system.” “We see no reason to delay the application of an amendment aimed at combatting the negative effects of Juvenile Court involvement on children and their communities.”

The Chief’s abiding conviction in ensuring equity was again reflected in one of the last cases he worked on. In his concurring opinion in Commonwealth v. Long, S.J.C. 12868 (Sept. 17, 2020), he supported the decision to adopt a new rule in allegations of racially motivated motor vehicle stops, which would place an initial burden on defendants to argue that there was a reasonable inference that stops were motivated by race or another protected class; and that in lieu of relying on statistical analysis, as previously required by Commonwealth v. Lora, 451 Mass. 425 (2008), defendants could rely on the totality of the circumstances regarding the stop. In noting that the justices had different ideas about the appropriate constitutional analysis, the Chief wrote that “… the court is unanimous in concluding that a motor vehicle stop that arises from racial profiling is unconstitutional …. [I]n short it is the unanimous view of this court that prohibition against racial profiling must be given teeth and that judges should suppress evidence where a motor vehicle is motivated, even in part, by the race of the driver or passenger.” Practitioners are already considering the implications of the case and tailoring arguments regarding racial profiling in all contexts.

Chief Justice Ralph Gants is not gone. He lives in all of our hearts. As former Chief S.J.C. Justice Margaret Marshall said during an October 27, 2020 event honoring her former colleague, “Now is not the time to grieve. It is time to get to work.” I concur. Ralph Gants was inspired by Deuteronomy’s admonition: Justice, Justice Shall You Purse. We should all follow his example.

[1] Available at http://www.mass.gov/courts/docs/sjc/docs/speeches/sjc-chief-justice-gants-remarks-umass-boston-03165.pdf.

Jay Blitzman served as the First Justice of the Middlesex County Division of the Massachusetts Juvenile Court. Prior to his retirement he was the founder of the Roxbury Youth Advocacy Project, a multi-disciplinary public defender unit which became the template for the creation of the statewide Youth Advocacy Division. Jay was also a co-founder of Massachusetts Citizens for Juvenile Justice (CfJJ) and a co-founder of Our RJ, a court and school-based diversionary restorative justice program. Judge Blitzman currently serves on the advisory boards of CfJJ, UTEC (Lowell) and is a Massachusetts Access to Justice Fellow working with More Than Words (MTW).  Jay was also a co-founder of the Massachusetts Bar Association’s Juvenile and Child Welfare section council and in 2018 was the first recipient of the MBA Juvenile Justice and Child Welfare Award. Jay also served as a member of the Boston Bar Association’s Cradle to Prison Pipeline and is a former BBA Brooke public service award winner. He is member of the American Bar Association’s Commission at Risk and is the ABA advisor to the Uniform Law Commission’s committee on The Criminalization of School Discipline. He is also a member of the Massachusetts Supreme Judicial Court’s Standing Committee on Eyewitness Identification. Jay writes and presents regularly on systemic juvenile and criminal issues and holds teaching positions at Harvard Law School (trial advocacy), Northeastern University School of Law (juvenile law), and Boston College School of Law (Cradle to Prison Pipeline). Judge Blitzman is also a faculty member at the Center on Law Brain and Behavior (CLBB- Harvard Medical School, M.G.H.) Jay chairs the Juvenile Committee of the Criminal Justice Reform Committee at Northeastern. Judge Blitzman was the 2019 recipient of the ABA Livingston Hall Juvenile Justice Award. The Committee for Public Services (CPCS) annually presents the Jay D. Blitzman Youth Advocacy Award.


Our Steadfast Commitment to Justice

by Martin Murphy

President’s Page

For lawyers—indeed, for anyone who values the rule of law, cares deeply about civil rights, and envisions our legal system as a force to protect the most vulnerable among us—September 2020 was an extraordinarily cruel month. On September 14, we were shocked and deeply saddened to learn of the sudden death of Supreme Judicial Court Chief Justice Ralph D. Gants. And only four days later, Supreme Court Associate Justice Ruth Bader Ginsburg, finally lost her long battle with pancreatic cancer.

The next issue of the Boston Bar Journal will be dedicated to Chief Justice Gants and his legacy. I’ll have much more to say there about his loss, which so many of our members felt deeply and personally.

But as I write this—less than two weeks after Election Day, and only a few days after the BBA’s 2020 Annual Meeting—my thoughts turn to a New Yorker essay paying tribute to Justice Ginsburg, written by our Annual Meeting keynote speaker, Harvard history professor Jill Lepore. Professor Lepore summed up Justice Ginsburg’s life this way: “Aside from Thurgood Marshall, no single American has so wholly advanced the cause of equality under the law.” One example: Justice Ginsburg’s dissent in Shelby County v. Holder , criticizing the Court’s decision to read the critical pre-clearance provisions of the Voting Rights Act of 1965 out of the statute. “Throwing out pre-clearance when it has worked and is continuing to work,” Justice Ginsburg wrote, “is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Justice Ginsburg’s opinion quoted Martin Luther King’s familiar statement: “the arc of the moral universe is long, but it bends toward justice.” But, as Professor Lepore pointed out, when Justice Ginsburg read her dissent in open court, she added her own coda: “The arc of the moral universe is long,” she said, “but it bends toward justice if there is a steadfast commitment to see the task through to completion.” (You can hear Justice Ginsburg read her dissent here).

A “steadfast commitment to see the task through to completion” has long been part of the BBA’s DNA. Living up to that commitment remains as important now as ever.

At the end of May, we watched in horror as George Floyd called out “I can’t breathe” over and over and over. In the weeks and months that followed, we saw the possibility of a national reckoning on the question of race—and the prospect that here in Massachusetts we might take concrete steps to ensure that all police officers protect and serve everyone, including Black men and women and other people of color. The BBA’s Task Force on Police Accountability—chaired by former Suffolk County District Attorney Ralph Martin, now General Counsel of Northeastern, and Natashia Tidwell, a partner at Saul Ewing and the Court-appointed monitor in the Ferguson case—is hard at work on this issue, and we believe the BBA can make a meaningful contribution to public debate.

As the election approached, the BBA sponsored programs that trained dozens of volunteers to protect voters’ rights as we prepared for what we expected—for good reason—would be one of the most contentious elections in our lifetimes.

BBA programs also trained dozens more to represent the many tenants affected when the eviction moratorium was lifted in October, and we are assisting the Governor’s Office and legal-services stakeholders in their Eviction Diversion Initiative—all to try to prevent a tsunami of evictions and resulting surge in homelessness.

And at our Annual Meeting last week, I was honored to present the BBA President’s Award to the many lawyers who put aside the personal challenges we all faced when the pandemic hit to think, not of themselves, but about the more than 14,000 individuals detained at Houses of Correction and prisons—thousands of whom had not yet been convicted of any offense. Their work changed the standard for release of non-violent offenders (something the BBA has long advocated), secured mandatory COVID-19 testing for individuals detained on civil immigration charges at the Bristol County House of Correction, and led to the release of thousands of individuals.

But, as recent COVID-19 outbreaks in the Essex County jail and at the MCI-Norfolk state prison remind us, much work remains to be done on this issue. So too does much work remain on the BBA’s other priorities: ensuring police accountability, addressing the school to prison pipeline, supporting civil legal aid (particularly following the end of the eviction moratorium), protecting the rule of law, among others. And, most of all, much more work remains if we are to be serious about dismantling the system of structural racism that that has worked itself so deeply into the fabric of our country and its laws.

I know I speak for my predecessors, for the BBA’s volunteer leaders, and for its extraordinary staff, when I say that I am optimistic—indeed, confident–that our members will meet Justice Ginsburg’s challenge and continue to prove their steadfast commitments to each of these tasks.  

Marty is a partner at Foley Hoag LLP where he represents individuals, companies, educational institutions, non-profits, and law firms in complex civil litigation, criminal investigations, and regulatory proceedings. He is President of the BBA and has chaired a number of BBA Committees, including the COVID-19 Response Working Group, Immigration Working Group, Working Group on Criminal Justice Reform, Death Penalty Working Group and the Task Force to Prevent Wrongful Convictions.


Department of Revenue Child Support Enforcement v. Grullon: What Process Is Due When Child Support Is Due?

by Andrea Peraner-Sweet and Kelly A. Schwartz

Case Focus

In Department of Revenue Child Support Enforcement v. Grullon, 485 Mass. 129 (2020), the Massachusetts Supreme Judicial Court (“SJC”) (Cypher, J.) vacated the trial court’s judgment of contempt, holding that both the trial judge and the Department of Revenue (“Department”) failed to afford the defendant, the non-custodial father (“Father”), the procedural due process safeguards to which he was entitled under federal and state law and under the Department’s own policies. The opinion sets forth the procedural safeguards that a defendant in a child support contempt proceeding must be provided.  It also reaffirmed that a defendant’s ability to pay remains the critical inquiry when determining whether a defendant is in contempt and facing possible incarceration.

Background

Mother, the custodial parent, filed a pro se complaint for civil contempt alleging that Father was in arrears on his child support obligation. The complaint was served by the Department on behalf of Mother and marked “DOR full service case,” indicating the Department’s involvement and assistance in the matter. Father, also appearing pro se, filed an answer and counterclaim for modification, claiming that he was unable to meet his obligation due to his past incarceration and subsequent difficulty finding employment. Accordingly, he requested a reduction in his child support obligation.

At a hearing, the Department argued that Father was in contempt and sought a period of incarceration of the Father subject to a $500 purge amount. Without making any factual findings, the Judge entered a judgment, found Father in contempt and sentenced him to ten days in the house of correction, subject to the $500 purge amount. Because Father was unable to pay the purge amount, he was taken into custody and incarcerated for ten days.

Father appealed and the SJC granted an application for direct appellate review.

The SJC’s Decision

Looking first to the United States Supreme Court’s decision in Turner v. Rogers, 564 U.S. 431 (2011), the SJC identified four safeguards that needed to be provided to a defendant in a contempt proceeding:  “(1) notice to the defendant that his ‘ability to pay’ is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status…; and (4) an express finding by the court that the defendant has the ability to pay.” Id. at 447-48.

The SJC then turned to the federal regulations that were enacted to reflect the Turner requirements, which include screening whether defendants have the ability to pay; providing information to the court about defendants’ ability to pay; and providing defendants with clear notice that their ability to pay constitutes the critical question in civil contempt actions.  45 C.F.R. §303.6(c)(4).  

Finally, the SJC noted that the Department has adopted the federal guidance in a civil contempt policy and procedures memorandum, which states that “[i]t is the [Department’s] obligation to ensure that there is sufficient evidence that the parent has a present ability to pay before…assisting with service of a pro se customer’s complaint for contempt.” Grullon, 485 Mass. at 135. Further, “[a] parent’s present ability to pay is the key issue at every step of the contempt process—from screening through court hearings.” Id.

In vacating the judgment of contempt, the SJC held that the failure of both the trial judge and Department to afford Father with the Turner safeguards or their equivalent, or to comply with federal regulations, state law or the Department’s own policy, resulted in Father being wrongfully found guilty of civil contempt and incarcerated for ten days.

First, the Court concluded that the Department did not provide Father with notice that “his ‘ability to pay’ [was] a critical issue in the contempt proceeding.” Id., quoting Turner, 564 U.S. at 447.

Second, the Court could not determine whether the trial judge or the Department ever assessed Father’s financial disclosure form, which clearly indicated Father’s inability to pay. Id. at 136. Accordingly, the SJC held that the Department should not have requested that Father be incarcerated. Further, the SJC opined that “[b]ased on the lack of discussion at the hearing of the contents of the financial disclosure form and the assertion by counsel for the Department that [Father] should be incarcerated, it appears the [Father’s disclosure] form, although complete, was not used in any meaningful manner[.]”  Id.

Third, the Court concluded that the trial judge denied Father “an opportunity to ‘respond to statements and questions about his financial status[.]’”  Id. at 136, quoting Turner, 564 U.S. at 448. Once the trial judge decided to sentence Father, she failed to inquire whether he had the present ability to pay his child support.

Finally, the SJC noted that the trial judge did not make an express finding that Father had the ability to pay the child support arrearages or the purge amount. Id. at 137. Rather, the SJC highlighted that the transcript “reveal[ed] that the judge decided to find the defendant in civil contempt not because of an assessment of his ability to pay, but because of his ‘poor attitude.’ This decision by the judge was error, as it disregarded the procedural safeguard of ability to pay.”  Id.

Of note, although briefed, the SJC left unanswered the question of whether an indigent non-custodial parent who received these procedural safeguards must be provided with counsel. Id. at 138.

Conclusion

In Grullon, the SJC set forth a roadmap for the procedural due process safeguards that courts and the Department must follow before a defendant can be found in contempt and incarcerated for failing to pay child support. As the late Chief Justice Gants alluded to in his concurring opinion, how and whether these safeguards will be implemented in the future is unknown. Thus, family law attorneys should familiarize themselves with these safeguards to ensure that a defendant is not found in contempt or incarcerated without having been afforded the full panoply of these protections and without a judge’s explicit finding of a defendant’s ability to pay.

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

Kelly A. Schwartz is an associate at Fitch Law Partners LLP.  Her practice is in family law, which includes matters involving divorce, child custody, alimony, child support, and asset division.


Commonwealth v Norman: A Sea Change in Pre-Trial Electronic Surveillance

by Jamie Michael Charles

Legal Analysis

In recent years, the Supreme Judicial Court (the “SJC”) has dramatically changed the legal landscape governing the supervision upon release of people charged or convicted of criminal offenses by expanding privacy rights under the Fourth Amendment and Article 14 of the Massachusetts Declaration of Rights. Most recently, in Commonwealth v. Norman, 484 Mass. 330 (2020), the SJC limited a trial court’s ability to impose a requirement that a defendant wear a global positioning system (“GPS”) device as a condition of pre-trial release.

The rubric by which trial courts must assess the propriety of GPS monitoring as a condition of release going forward, and the peripheral ramifications of the SJC’s decision for the various parties to the criminal justice system, have broad implications for client and Commonwealth advocacy. For instance, the decision appears to mark a retreat from prior rulings tacitly approving a broader, safety-based rationale for pre-trial release conditions, and may vitiate other release conditions historically imposed pursuant to the bail statute. In the absence of legislative action, justices of the trial courts must now strike a new balance in their efforts to ensure a defendant’s appearance and protect the various parties to a criminal case. Additionally, both prosecutors and police must revisit their use of surveillance technology, particularly in the absence of legal process, to avoid constitutional violations carrying severe consequences for prosecutions that emanate from such surveillance.

Legal Background

In 2006, the Massachusetts Legislature amended the bail statute, M.G.L. c. 276, § 58, to permit the imposition of various “restrictions on personal associations or conduct” as conditions of release in addition to (or in lieu of) cash bail.[i] In the decade that followed, law enforcement officials, probation officers, and members of the bar operated under the assumption that, where appropriate, the trial court could require a defendant or probationer to wear a GPS ankle bracelet as a condition of release without implicating that individual’s constitutional rights.

This understanding began to unravel in Commonwealth v. Johnson, 481 Mass. 710 (2019), and Commonwealth v. Feliz, 481 Mass. 689 (2019), where the SJC concluded that GPS monitoring of post-conviction probationers amounts to a constitutional search under the Fourth Amendment and Article 14. These decisions were followed in short order by Norman, which extended their holdings to defendants subjected to pre-trial release on conditions. Norman revisited the underlying purposes for which trial courts can impose pre-trial conditions pursuant to the bail statute. In doing so, the SJC left open for question the legality of pre-trial conditions that were routinely imposed on defendants across the Commonwealth before Norman. Furthermore, viewed in combination with Johnson, as well as subsequent decisions in Commonwealth v. McCarthy, 484 Mass. 493 (2020) and Commonwealth v. Mora, 485 Mass. 360 (2020), Norman reflects the SJC’s broader concern with law enforcement’s warrantless use of ever-advancing surveillance technology.

The Norman Decision

In Norman, Medford police were investigating an armed home invasion and armed robbery. They requested a targeted search from the Massachusetts Probation Service’s Electronic Monitoring (“ELMO”) Program, which oversees compliance with GPS release conditions, to determine whether any individuals under GPS supervision were present at the time and location of the robbery. That search yielded a positive result for the defendant, who was subject to GPS monitoring as a condition of release imposed in conjunction with an unrelated drug crime. The ELMO data both placed the defendant at the scene of the robbery and led authorities to a residence where the defendant was shortly before and after the robbery. A search warrant executed at that residence yielded additional inculpatory information. A Superior Court judge allowed the defendant’s motion to suppress, agreeing that the initial procurement of ELMO data absent a warrant violated the defendant’s Fourth Amendment and Article 14 rights. The Commonwealth appealed.

Relying primarily on Massachusetts and United States Supreme Court precedent recognizing an expectation of privacy in the whole of an individual’s physical movements, the SJC found that the initial imposition of GPS monitoring as a condition of pretrial release constituted a search under Article 14.[ii] It held that, going forward, the Commonwealth must demonstrate on the particular facts of each individual case that warrantless monitoring is “reasonable” to justify the attachment of a GPS ankle bracelet. Prior to imposing GPS monitoring, a judge must balance the intrusiveness of the monitoring against any legitimate governmental interests. In light of the “severe intrusion” occasioned by around-the-clock GPS monitoring[iii] – which the justices analogized to a modern-day scarlet letter – the SJC cautioned that even monitoring that serves legitimate government interests could be deemed unreasonable.

The SJC also defined narrowly the legitimate interests served by conditions of release imposed pursuant to the bail statute. It concluded that the only permissible goals of pretrial conditions of release in the defendant’s case were “ensuring the defendant’s return to court and his presence at trial, and safeguarding the integrity of the judicial process by protecting witnesses from intimidation and other forms of influence.”[iv] In doing so, the SJC rejected the Commonwealth’s argument that, unlike cash bail, conditions of release imposed under section 58 may serve the goals of generally deterring criminal conduct or addressing dangerousness concerns (the latter being an interest served under section 58A governing dangerousness determinations). As to the latter goal, the SJC appeared to limit the scope of its earlier ruling in Brangan v. Commonwealth, 477 Mass. 691, 706 (2017), that “a judge may not consider a defendant’s alleged dangerousness in setting the amount of bail, although a defendant’s dangerousness may be considered as a factor in setting other conditions of release.”[v] As a result, prosecutors must now be cognizant that general criminal deterrence and dangerousness are not valid interests in imposing GPS monitoring pursuant to the bail statute in most cases.

Broader Implications of Norman

The reasoning of the SJC’s Norman decision may also limit other types of conditions routinely imposed by the Commonwealth’s trial courts. For example, does ordering a defendant charged with operating under the influence to abstain from drugs or alcohol, or submit to random screens designed to detect those substances, ensure that defendant’s return to court?[vi] Will ordering a defendant repeatedly charged with drug distribution to stay away from the geographical area in which the charges arose protect potential witnesses? There certainly is an argument that these conditions more readily serve the goals of deterrence or community safety, and therefore are inappropriate conditions post-Norman. In fact, the SJC appeared to explicitly disapprove of an exclusionary zone in drug distribution cases absent evidence that the condition was “intended to insulate any particular victims or civilian witnesses[.]”[vii] Without legislative action, judicial officers[viii] may need to reassess the enduring utility of these and other commonly imposed conditions, and explore alternative avenues to cabin a defendant’s pre-trial conduct.

In addition to creating legitimate questions about the legality of certain release conditions, Norman also is one of a string of recent decisions creating a ‘new normal’ for law enforcement use of data generated by electronic surveillance. In Commonwealth v. McCarthy, 484 Mass. 493 (2020), the SJC held that law enforcement review of automated license plate reader (“ALPR”) data maintained by the Executive Office of Public Safety and Security could infringe upon a reasonable expectation of privacy if the data painted a detailed enough picture (or “mosaic”) of the targeted individual’s movements. Likewise, in Commonwealth v. Mora, 485 Mass. 360 (2020), the SJC applied a virtually identical analysis to protracted pole camera surveillance, concluding that a warrant was required where such monitoring enabled investigators to uncover the defendant’s private behaviors, patterns, and associations.

The theme in these cases, as in Norman and Johnson, is the SJC’s recognition that individuals have an expectation of privacy in the whole of their physical movements. And, that regardless of its form, prolonged electronic surveillance can provide “access to a category of information otherwise unknowable.”[ix] Yet while the technologies and data at issue in Norman, McCarthy, and Mora have historically been available to law enforcement in Massachusetts without a warrant, the SJC has thus far declined to set a bright line rule as to when the aggregation of such digital surveillance data crosses the threshold into an Article 14 search.[x] Members of law enforcement must therefore exercise caution when utilizing digital surveillance data that has historically served as a building block for criminal investigations. And prosecutors should seriously consider advising their law enforcement partners to secure a warrant supported by probable cause or another governing legal standard before requesting such data.[xi] Officers who fail to seek legal process run the risk of an ex post facto determination that the aggregation of GPS surveillance data infringed upon a reasonable expectation of privacy, resulting in that data being suppressed “even if law enforcement could have met the applicable [legal] standard.”[xii]

Lessons for Law Enforcement

This new “proceed at your peril” paradigm, aptly demonstrated by the historical GPS data ultimately suppressed in Norman, provides several practical lessons for law enforcement. First, warrantless requests for ELMO data may become less common, as law enforcement must determine whether the quantum of data requested from ELMO will infringe on a potential suspect’s reasonable expectation of privacy such that a warrant is required. Although there was no need for this analysis in Norman (because the ankle bracelet’s initial imposition was itself deemed unreasonable), the SJC recognized in Johnson, 481 Mass. at 727, that, at least as to defendants on probation, there is a difference between “a targeted review of GPS data directed at times and locations of suspected criminal activity” and “mapping out and reviewing all of the defendant’s movements . . . or rummaging through the defendant’s historical GPS location data indiscriminately.” The former may, depending on the specific facts of a particular case, fall short of a constitutional search necessitating probable cause.

Second, while application of the “mosaic” theory may be somewhat more straightforward in the context of ALPRs, pole cameras, and other surveillance technologies, any warrantless request will inevitably be subject to a retroactive assessment of its constitutionality. Such an analysis will consider both the volume of data requested or acquired and what that data reveals about a suspect’s movements, day-to-day routine, political and religious beliefs, and other private affairs. Absent legal process, the pyramid of evidence emanating from such data may collapse upon judicial review and cripple a prosecution.

Third, as to historical ELMO data, even a lawful, warrantless request may be subject to suppression based on a judicial determination that the suspect (whose identity was likely unknown to law enforcement at the time of the request) was improperly subjected to GPS monitoring. Given the virtually unknowable nature of this analysis at the time of an officer’s initial request, law enforcement officials may need to think twice about using ELMO data to find the proverbial needle in a haystack.

Conclusion

Norman and similar decisions addressing the use of digital surveillance – whether during the pre-charge investigatory phase or in conjunction with a criminal prosecution – have fundamentally altered the manner in which police and prosecutors use these technologies. Prosecutors and judges must re-evaluate how to address and constrain the behavior of defendants before and after trial. Conditions of release routinely imposed pre-trial may no longer serve the legitimate government interests vindicated by the bail statute. In particular, GPS monitoring as a condition of release and the use of associated location data by law enforcement have been significantly constrained. Police likewise must reassess technologies that previously served as building blocks of criminal investigations and weigh the utility of their warrantless use against the risk of a court suppressing the resulting evidence. One thing remains certain: as technology inevitably evolves, our appellate jurisprudence will continue to redefine the balance between the tools available to law enforcement and the courts and an individual’s right to privacy.

[1] See St. 2006, c. 48, § 8 (Mar. 30, 2006).

[2] While acknowledging that consent can justify a warrantless search, the Court largely dismissed its import in this context given the inherent coercion involved where a defendant agrees to GPS monitoring in lieu of pre-trial incarceration. Norman, 484 Mass. at 335.

[3] The Court highlighted how faulty alerts and charging issues associated with monitoring devices can compromise an individual’s employment and subject that person to the indignities and dangers associated with an arrest. Norman, 484 Mass. at 339.

[4] Norman, 484 Mass. at 338. The Court acknowledged that a separate provision of the bail statute permitted conditions of release to be imposed in certain crimes involving domestic abuse “in order to ensure . . . the safety of the alleged victim, any other individual or the community.” See G.L. c. 276, § 58, third par.

[5] In a footnote, the Court specifically referenced the provision of section 58 authorizing specific restrictions on personal associations or conduct. See Brangan, 477 Mass. at 706 n.18.

[6] Like GPS monitoring, random drug and alcohol testing constitutes a search and seizure for constitutional purposes under Article 14 of the Massachusetts Declaration of Rights. See Commonwealth v. Gomes, 73 Mass. App. Ct. 857, 859 (2009). Such conditions have been deemed appropriate in the probationary context, where a defendant’s expectation of privacy is reduced, so long as “reasonably related” to the goals of sentencing and probation, in light of the defendant’s underlying crime and his or her particular circumstances. See Commonwealth v. Lapointe, 435 Mass. 455, 459 (2001).

[7] Norman, 484 Mass. at 338.

[8] Mass. Gen. Laws. c. 276, § 58 authorizes numerous parties, including justices, clerks and bail commissioners, to set conditions of pretrial release.

[9] McCarthy, 484 Mass. at 500, quoting Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018); Norman, 484 Mass. at 334, quoting Commonwealth v. Johnson, 481 Mass. 710, 717 (2019). The Court first recognized this privacy expectation in Commonwealth v. Augustine, 467 Mass. 230, 245-49 (2014). Acknowledging that cellular phones had become “an indispensable part of modern American life”, the Court found that “[cell-site location information] raises even greater privacy concerns than a GPS tracking device” as a “cellular telephone is carried on the person of its user, [and therefore] tracks the user’s location far beyond the limitations of where a car can travel.” Id. at 245, 249. The United States Supreme Court reached a similar conclusion in Carpenter v. United States, 138 S. Ct. 2206 (2018).

[10] McCarthy acknowledged that the absence of a bright-line rule would create “some interim confusion[,]” but expressed confidence that the “constitutional line” would “gradually and appropriately . . . come into focus.” 484 Mass. at 509. The Court cautioned that it “risk[ed] error by elaborating too fully on the Fourth Amendment [or art. 14] implications of emerging technology before its role in society has become clear.” Id., quoting Ontario v. Quon, 560 U.S. 746, 759 (2010).

[11] Massachusetts case law already recognizes that law enforcement may obtain certain forms of historical location data on a lesser showing than probable cause. For example, in Commonwealth v. Estabrook, 472 Mass. 852, 855 n.4 (2015), the Court concluded that Article 14 permits requests for less than six hours of historical cell-site location information (“CSLI”) on a showing of “specific and articulable facts” evidencing “reasonable grounds to believe” that the records “are relevant and material to an ongoing criminal investigation[.]” Likewise, Chief Justice Gants’ concurrence in McCarthy, 484 Mass. at 514, proposed a “lesser” locational mosaic threshold that would require a showing of “‘specific and articulable facts’ demonstrating reasonable suspicion that the targeted individual has committed, is committing, or will commit a crime . . . and that there are reasonable grounds to believe that the data obtained from the query are relevant and material to an investigation of the crime.”

[12] McCarthy, 484 Mass. at 514 (Gants, C.J., concurring).

Jamie Michael Charles is an Assistant District Attorney in the Appeals and Training Bureau of the Middlesex District Attorney’s Office.


Beyond Shelter: Sustaining Public Housing Communities During and After a Pandemic

by Kate Bennett and Joel Wool

Viewpoint

For nearly a century, through economic boom and bust, social progress and upheaval, and across many administrations, the Boston Housing Authority (“BHA”) has steadfastly provided “deeply affordable housing” for the City’s low-income residents. Established in 1935, the BHA currently ensures housing affordability for 58,000 residents in and around Boston. As the country continues to reckon with the COVID-19 emergency, the BHA’s mission to connect vulnerable residents to opportunities through housing has never been more urgent. This article highlights some of BHA’s efforts to support our public housing communities through the pandemic and beyond.

The challenges faced by low-income households cannot be overstated. Even before COVID-19, BHA residents—many of whom are elderly, disabled, people of color, and children—faced disproportionate levels of unemployment, food insecurity, and health risks, all of which have been amplified during the pandemic by a digital divide that threatens to isolate them from essential services, critical resources, and necessary systems of support. While local, state, and national governments grapple with the racial and economic disparities laid bare by COVID-19, BHA and other affordable housing providers have been tasked to expand their role through more front-line advocacy and direct assistance to better shelter our vulnerable residents from the impact of the global pandemic.

COVID-19 EMERGENCY RESPONSE

In March 2020, BHA responded swiftly to the public health crisis to safeguard our residents, employees, and the general public from the twin public health and economic crises:

  • Because housing authorities lack the authority to cancel rent payments even during a national pandemic causing crisis rates of unemployment, to ensure that tenants can remain safely in place without fear of becoming homeless, on March12, 2020, the BHA announced its immediate suspension of all “non-essential” (i.e., not critical to public health and safety) evictions for the duration of the Massachusetts state of emergency, and later extended the agency’s moratorium to at least through the end of 2020. The BHA, in concert with Mayor Walsh and other city partners, also urged the Housing Court’s cooperation in suspending all pending and new non-essential eviction cases in light of the significant health and safety risks exposed to all during court proceedings.
  • Consistent with evolving guidance, BHA implemented preventative measures to encourage social distancing and frequent cleaning and decontamination, including temporary closure of certain indoor common spaces, limitations on visitors in elderly housing, and postponement of inspections to reduce exposure and transmission risks in our vulnerable housing communities.
  • Working with the U.S. Housing and Urban Development and the state Department of Housing and Community Development, BHA shifted mission-critical operations to remote and electronic platforms with streamlined and flexible documentation requirements and extended deadlines, including the processing of applications, admissions, issuance of vouchers, transfer requests, annual and interim examinations, and even housing quality inspections.
  • BHA adapted interactions with residents, encouraging open lines of communication via telephone, fax, and e-mail; establishing an on-line rent payment option; providing secure drop-boxes for submission of rent and documents for households without internet access; limiting in-person transactions to locations with appropriate ventilation and space for social distancing; and ensuring important notices and information are disseminated in a manner accessible to persons with communication-related barriers including disabilities, language needs, and technology challenges.

CARES ACT SUPPORTIVE INITIATIVES

In April 2020, BHA modified many of its policies and procedures under the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act to better address the escalating loss of income due to COVID-19. For example, the BHA encouraged prompt reports of job loss and requests for minimum rent hardship exemptions, allowed unlimited, retroactive interim rent reductions for loss of income, and continued to limit out-of-court rent repayment agreements to 40% of the household’s adjusted monthly income, inclusive of the tenant’s regular rent share.

In May 2020, with COVID-19 exacerbating health issues, driving up household expenses, and worsening transportation-related barriers to accessing food and other necessities, our residents clearly needed more help. Consequently, BHA prioritized the use of its CARES Act funds not only to maintain existing operations but also to implement new initiatives to support the health, safety, and quality of life of our residents, including:

  • a multi-million dollar food contract with local minority- and women- owned businesses to ensure the reliable and safe delivery of sufficient fresh foods to BHA families and seniors facing food insecurity and barriers to safe access to grocery stores.
  • economic incentives to encourage landlord participation in a new homeless voucher program for families with children in Boston Public Schools.
  • distribution of free laptops and tablets for residents and technology upgrades to improve connectivity to improve remote access to education, jobs, and other opportunities and resources, and to reduce social isolation.
  • reconfiguring community rooms and other common spaces for the continued safe use by residents and to facilitate safe interaction within the housing community.
  • direct efforts to reach and support residents, from staff distribution of food, masks, and cleaning supplies to safe and socially-distanced support of youth engagement programs, such as a multi-media project where young BHA residents filmed their experiences of the pandemic within their family and community.
  • support of resident empowerment, leadership and participation in BHA policy development and planning activities through regular, facilitated virtual meetings with tenant organizations, including providing technical training, free tablets, and interpretation services.

PRESERVING AND CREATING AFFORDABLE HOUSING

Pandemic notwithstanding, the BHA has forged ahead with its plans for the renovation of all of its affordable housing facilities and pursuit of opportunities to create additional affordable housing units in the City. For example:

  • Through the summer and fall of 2020, BHA has used virtual platforms to advance the permitting process for the redevelopment of its 1,100-unit Bunker Hill federal public housing site into a mixed-income community through a public-private partnership, leveraging rents from additional, new market-rent units to support the 1-for-1 replacement and conversion of the existing deteriorated public housing units. Similar initiatives are underway throughout Boston to rehabilitate and preserve the affordability of BHA’s aging public housing stock, including at Mildred Hailey in Jamaica Plain, and Mary Ellen McCormack in South Boston.
  • BHA also launched “Generations BHA,” a plan to renovate and modernize BHA’s entire 3,600-unit federal elderly/disabled portfolio, including accessibility improvements, energy efficiency measures, plumbing, electrical, and fire protection. All Generations BHA units will remain under sole public ownership but convert from a public housing to a Section 8 Project-Based Voucher (“PBV”) subsidy platform.
  • BHA and City of Boston recently announced the preservation of 48 “expiring-use” units at the Mercantile Wharf in the North End using Section 8 PBVs.
  • A new Boston-funded municipal voucher program is anticipated to stabilize the housing of additional low-income Bostonians through a mix of project- and tenant-based rental assistance.

FUTURE DIRECTION

Even before the pandemic, the BHA provided the City’s low-income residents with much more than shelter. Today, when COVID-19 exposed a dangerous widening of historic disparities in income and access to safe and stable housing, and unprecedented levels of social isolation among low-income and elderly residents, BHA is redoubling its efforts to provide our residents with vital connections to achieve economic self-sufficiency and housing mobility, and to build a more just and equitable 21st-century society in which all families are able to meet their basic needs.

Kate Bennett is the Administrator and CEO of the Boston Housing Authority.  She oversees public housing and housing choice voucher programs that provide affordable housing for more than 50,000 people in and around the City of Boston. 

Joel Wool is Special Advisor for Policy and Planning for the Boston Housing Authority. Joel has supported BHA in directing state and federal COVID relief funds to critical initiatives and social equity measures. He is project lead on the new municipally- funded voucher program.

 


Creative Planning For The Transfer Of Family Real Estate

by Richard H. Goldman

Practice Tips

The transfer of real estate to children upon the death of the last to die of their parents can lead to unexpected problems for the children.  It is not uncommon for parents’ estate plans to provide that upon the death of the last parent to die, their real estate shall be distributed to their children equally as tenants in common.  However, problems arise when the children cannot agree upon the disposition of the real estate.  This article offers suggestions for provisions to be included in the estate plans of parents so that such disputes can be avoided. 

Right of First Offer

One way of addressing these issues is to include in the parents’ estate plans a “right of first offer,” applicable to each parcel of real estate that is to pass to their children.  A right of first offer is a contract provision that enables one joint owner of property (“Potential Seller”) to offer to sell his or her interest in the property to the other joint owner (“Potential Buyer”) for a price specified by the Potential Seller (“the Specified Price”). 

Within an agreed period of time, to be specified in the estate plans, the Potential Buyer may elect (a) to purchase the Potential Seller’s interest at the Specified Price; or (b) agree that the Potential Seller can sell the Property for a price not less than what would provide the Potential Buyer the amount he or she would have received if the Potential Buyer had sold his or her interest to the Potential Seller for the Specified Price.   

If the Potential Buyer does not timely elect to purchase the Potential Seller’s interest at the Specified Price, or having elected to purchase, does not complete the purchase within the permitted time, then for a subsequent specified period of time, the Potential Seller can try to sell the Property to a third party for a price that would cause the Potential Buyer to receive not less than the Specified Price for his or her interest in the Property.

By way of example: Assume that a husband and wife have two children. They own two homes, one in Massachusetts and the other in Florida, each with a value of $1,000,000.  Their estate plans provide that upon the last of them to die, the balance of the estate, including the two homes, is to be distributed to the two children equally as tenants in common.  

The two children agree that the Massachusetts home will be sold, but one child wants to sell the Florida home and the other child wants to retain it.  The estate plans do not contain any guidance as to how to resolve the situation if the children do not agree on the disposition of the homes.  The children consult their respective attorneys and are advised that either one can commence a partition proceeding which could be expensive and adversarial.

A better solution is for the parents’ estate plans to set forth a right of first offer.  The parents’ estate plans could provide that if the children cannot agree on the disposition of the properties, then within 90 days after the death of the last parent, either child can notify the other in writing that the property should be sold for a price which he or she specifies, in his or her sole discretion, in this example, $1,000,000.  The child who receives the notice then has a specified period of time after the receipt of the notice to elect in writing to buy the interest of the other party for $500,000, and to complete the purchase within the period of time stated in the estate plans.  If the recipient of the notice does not elect to purchase the interest of his or her sibling for $500,000, or to complete the purchase within the applicable time period, the party providing the notice can sell the property to an unrelated third party for not less than $1,000,000 within a time period specified in the estate plans.  If a sale of the property is not completed to a third-party within the agreed time period, either sibling would continue to have the right to utilize the right of first offer in the future. 

Offer to Purchase for at Least Federal Estate Tax Value

There are other alternatives that can achieve the same result as a right of first offer.  The estate planning documents can provide that following the death of the last parent, either child can offer to buy a property owned by the parents for not less than the federal estate tax value of that property.  The estate’s attorney would prepare a purchase and sale agreement at that price.  If only one child is interested in purchasing the property, that child could then submit a written offer to purchase to the estate for the federal estate tax value, accompanied by a check payable to the estate equal to 10% of the purchase price and a signed copy of the purchase and sale agreement. 

If each child would like to purchase the property for not less than the federal estate tax value, each child submits a written offer to the estate with his or her offer, accompanied by a 10% deposit payable to the estate and a signed copy of the purchase and sale agreement.  The child who offers the highest price would be the purchaser of the property at the price offered by him or her. 

If neither child is interested in purchasing the property from the estate for at least the federal estate tax value, the Personal Representative will sell the property on behalf of the estate. 

Right of First Refusal

In some cases, clients have been advised to use a right of first refusal instead of a right of first offer.  While a right of first refusal can lead to the same result as a right of first offer, a right of first refusal brings with it some potential problems.  In a right of first refusal, one of the children could negotiate a sale with a third party but would then have to come back to the other child and give that child the right to purchase the property at the price offered by the third party.  It can be difficult for a seller to deal with a third party if that party knows that the seller cannot complete the sale without first offering the property to the other child at the price offered by the third party.  For this reason, the right of first offer is a better solution than the right of first refusal. 

Conclusion

It is important for lawyers to recognize problems that may arise when family real estate is transferred from parents to their children. The right of first offer is a tool available to estate planning attorneys that can be used to plan for the transfer of real estate from parents to children and minimize any potential conflicts.

Richard Goldman is Senior Counsel at Sullivan & Worcester LLP in Boston. He is an Adjunct Professor at Boston University School of Law and is Vice President of the Wesleyan Lawyers Association.


The Brief but Complicated Life of the Medical Parole Statute

by Jessica Conklin

Legal Analysis

In April 2018, the Massachusetts legislature passed the Criminal Justice Reform Act (the “Act”). In addition to enacting sweeping changes in the areas of bail, juvenile justice, diversion from prosecution, and reentry services, the Act established a statutory right to medical parole for all eligible inmates. The medical parole statute, codified at G.L. c. 127, §119A, provides terminally ill and permanently incapacitated prisoners who do not pose a public safety risk the right to be released from custody, regardless of the crime of conviction or the time remaining on their sentence. Until the Act was passed, Massachusetts was one of only a handful of states without this remedy.  

Medical Parole Basics

Under the Act, petitioning prisoners who meet the qualifying criteria “shall be released on medical parole.” G.L. c. 127 §119(e) (emphasis added). All inmates, including those sentenced to life without the possibility of parole, have a right to medical parole if they qualify. To be eligible for release, a prisoner must meet three conditions: (i) the prisoner must be terminally ill or permanently incapacitated; (ii) the prisoner must be able to live and remain at liberty without violating the law; and (iii) the prisoner’s release must not be incompatible with the welfare of society.   

As to the first condition, the Act defines “terminal illness” and “permanent incapacity,” but does not list specific qualifying illnesses or incapacities. Terminal illness is defined as “a condition that appears incurable, as determined by a licensed physician, that will likely cause the death of the prisoner in not more than 18 months and that is so debilitating that the prisoner does not pose a public safety risk.” Permanent incapacitation is defined as “a physical or cognitive incapacitation that appears irreversible, as determined by a licensed physician, and that is so debilitating that the prisoner does not pose a public safety risk.” The Act does not provide guidance on the second and third conditions; that is, it does not list factors to evaluate an inmate’s ability to live at liberty without violating the law or circumstances that might render an inmate’s release incompatible with the welfare of society.

Procedurally, the prisoner, an attorney, the prisoner’s relative, a medical provider of a correctional facility, or a Department of Correction (“DOC”) staff member may petition the superintendent or sheriff of the facility where the inmate is being held for medical parole on behalf of the inmate. The Act does not prescribe a particular form for the petition. The Act requires expeditious review and a timely decision of medical parole petitions by setting specific deadlines after receipt of the petition. Within 21 days of a superintendent’s or sheriff’s receipt of a medical parole petition, the superintendent or sheriff must provide to the DOC Commissioner (“the Commissioner”): (i) a recommendation regarding release; (ii) a medical parole plan;[1] (iii) a written diagnosis by a licensed physician; and (iv) an assessment of the risk for violence that the prisoner poses to society. G.L. 127, §119A(c)(1). The Commissioner, who is the administrative decision maker, then has 45 days to issue a written decision granting or denying medical parole. If a prisoner’s petition is denied, there is no internal DOC appeals process. The Act allows for judicial review through a petition for certiorari under G.L. c. 249, §4. G.L. c. 127, §119A(g).[2]

2019 Medical Parole Regulations

The Act tasks the secretary of the Executive Office of Public Safety and Security (“EOPSS”) with promulgating rules for administering the medical parole process. G.L. c. 127, §119A(h). EOPSS promulgated regulations in July 2019 (the “2019 Regulations”).

EOPSS took a restrictive view of the scope of the right to medical parole. The 2019 Regulations required the petitioner to develop a medical parole plan and authorized the superintendent or sheriff to reject petitions as incomplete. Under the 2019 Regulations, a complete petition included: (1) an adequate medical parole plan; (2) a written diagnosis by a licensed physician; (3) a release allowing disclosure of the petition and all supporting documents to other criminal justice agencies, the appropriate district attorney, and registered victims or victims’ family members; and (4) a release allowing DOC and the parole board to assess the inmate’s medical parole plan. 501 CMR §§ 17.03(3), 17.03(5). Incomplete petitions required no further action by the superintendent or sheriff. These initial regulations, however, did not stay on the books for long.

The Supreme Judicial Court Weighs In

In early 2020, the SJC invalidated several of the 2019 Regulations as contrary to the plain language of the Act and the legislative intent.[3] Buckman v. Comm’r of Correction, 484 Mass. 14 (2020).

In January 2019, inmates Peter Cruz and Joseph Buckman each submitted a petition for medical parole which was rejected as incomplete by their respective superintendents. Both Cruz and Buckman challenged the decision, arguing that the superintendent must consider a petition regardless of his or her view of completeness or adequacy. When Cruz died in custody during the pendency of the appeal, the case continued with Buckman as the sole plaintiff.  

Buckman’s appeal raised three important questions: (1) whether a superintendent must consider a petition for medical parole regardless of the superintendent’s view of the completeness or adequacy of the petition; (2) which party bears the burden of preparing a  medical parole plan, obtaining a written diagnosis by a licensed physician, and preparing an assessment regarding the risk for violence the prisoner poses to society; and (3) whether the Commissioner must provide the prisoner with notice of the superintendent’s recommendation, a copy of the recommendation, and any supporting or related materials. Buckman, 484 Mass. at 15-16. 

In answering the first question, the court held that a superintendent or sheriff must consider a petition for medical parole regardless of the petition’s completeness. The court noted that the medical parole plan, the written diagnosis by a licensed physician, and medical record releases are documents separate from the petition. As such, those documents are not required to initiate the petition process and trigger the statutory deadlines imposed on the superintendent and the Commissioner. Id. at 25 n.23. The separate nature of these documents is evidenced by the requirement that the superintendent or sheriff – not the petitioner – is required to transmit the medical parole plan, diagnosis, and the risk assessment to the Commissioner with the petition. Id. at 24; G.L. c. 127, §119A (c)(1) and (d)(1). To trigger the Act’s deadlines, the petitioner need not do more than submit a “written” petition. Id. at 26. 

On the second question, the SJC ruled that the superintendent or sheriff bears the burden of creating a medical parole plan and obtaining a written diagnosis from a licensed physician. The court reasoned that the Legislature could not have intended to place the burden of expeditiously producing documents on a terminally ill or incapacitated prisoner because the Act only requires the submission of the written petition to trigger the 21-day countdown. Furthermore, because the Act placed the burden of creating the risk assessment on the superintendent, one could infer that the Legislature intended to place the concomitant burden on the superintendent to create the medical parole plan and obtain a diagnosis from a licensed physician. Id. at 25-29.

Finally, the court held that the prisoner must receive all supporting documents submitted by the superintendent except the superintendent’s recommendation to the Commissioner. While nothing in the Act prohibits restricting a petitioner’s right to a superintendent’s recommendation, the court found it fundamentally unfair to prohibit the petitioner from receiving documents that the district attorney could access upon request. In fact, the 2019 Regulations themselves anticipated that the petitioner would have access to the medical parole plan and medical diagnosis because the burden of producing these documents was placed (albeit erroneously) on the petitioner. Id. at 30-32.

Proposed 2020 Regulations

After Buckman, EOPSS began the process of amending its medical parole regulations. The proposed regulations, accessible here, blend new provisions with surviving sections of the 2019 Regulations. At a public hearing on September 16, 2020, lawmakers and advocates criticized the proposed regulations for ignoring the court’s guidance in Buckman, narrowing the population eligible for medical parole, and placing unnecessary roadblocks that delay and frustrate the purposes of the medical parole law. 

Some issues flagged by advocates include defining the term “prisoner” to exclude pretrial detainees and individuals who have been civilly committed, construing “permanent disability” to require a higher level of disability than the Act requires, and requiring, as part of the petition, two signed releases on specific DOC issued forms. Although the proposed regulations have not been formally adopted, cases relevant to the proposed regulations are currently before the SJC.

Recent Appellate Litigation

On October 5, 2020, the SJC heard argument in three cases related to the medical parole statute:  Racine v. Comm’r of Dep’t of Correction (“Racine”), SJC-12895; Harmon v. Comm’r of Dep’t of Correction (“Harmon”), SJC-12876; and Malloy et. al. v. Dep’t of Correction (“Malloy”), SJC-12961.[4] These cases may answer a number of issues related to the 2019 Regulations, the proposed regulations, and the practical difficulties litigating medical parole cases.

In Harmon and Racine, which were argued jointly, the parties addressed: (1) whether a prisoner’s death renders moot a certiorari action for review of denial of medical parole; (2) whether the EOPSS regulation giving a prisoner the right to reconsideration upon a material decline in health precludes a prisoner from submitting a new petition for medical parole; (3) whether the Act applies only to committed offenders or includes pre-trial detainees; and (4) whether a reviewing court has authority to grant medical parole. The court requested amicus briefing on the first three issues.   

On the first question, DOC took the position that death generally renders a case moot. Petitioners argued an inmate’s death (or release) should not moot a case when the issues in the plaintiff’s case are capable of repetition and will otherwise evade review. Petitioners emphasized that the lengthy process to litigate a certiorari action after denial of a medical parole petition will frequently result in plaintiffs dying before their day in court. 

On the second question, both the 2019 Regulations and the proposed regulations contain a provision stating that “[n]o subsequent petitions may be submitted following the Commissioner’s denial of medical parole, unless the prisoner experiences a significant and material decline in medical condition.” 501 CMR § 17.14. Petitioners’ counsel took the position that the Act requires the superintendent to review every petition and does not restrict an inmate’s right to file a subsequent petition. DOC argued the Act does not address subsequent medical parole petitions and that EOPSS has the authority to regulate the matter.

On the third question, petitioners argued that the regulations’ exclusion of pre-trial detainees impermissibly narrows the scope of the Act. DOC contends that extending medical parole to pretrial detainees violates the separation of powers.

Finally, in deciding these cases, the SJC also may address the question of whether, on certiorari review, a reviewing court has authority to order medical parole. On this issue, DOC argued judges are limited to remanding a case to the Commissioner for further consideration, while the petitioners argued, among other things, that the certiorari remedy necessarily includes the power to order the medical parole the Commissioner improperly denied.[5]

In Malloy, the court was asked to consider whether a prisoner may continue to be held in custody after the Commissioner has granted medical parole. In that case, two inmates were each granted medical parole without a medical parole plan in place and continued to be detained for weeks while DOC attempted to find a suitable placement. Both the 2019 Regulations and the proposed regulations give the Commissioner the authority to set conditions that must be met prior to the prisoner’s release, a process which may create delay. 501 CMR § 17.11.  

Petitioner’s counsel took the position that continuing to hold an inmate in custody after he has been granted medical parole is improper; that the superintendent or sheriff is required to create a comprehensive medical parole plan, including contingency options, within the 66-day window afforded by the Act; and where suitable placement has not been found prisoners should be released to a Department of Public Health facility rather than remaining incarcerated. In contrast, DOC argued the Act does not require immediate release and does not limit the period during which DOC may hold an inmate after medical parole has been granted. Regardless of the outcome, the Court’s decision in Malloy is likely to clarify the timing of an inmate’s right to release under the Act once the Commissioner has decided to grant medical parole. 

Conclusion

With inmates facing increased vulnerability during the COVID-19 pandemic, the medical parole statute is particularly important, yet release under the Act has been rare. At the time DOC filed its brief in Malloy, 337 inmates had submitted petitions for medical parole, of which 34 had been granted. Of the 34 inmates granted medical parole, 30 had been released from custody. Three inmates were still awaiting release and one had died after being granted medical parole, but before being released from custody.[6]   

Medical parole in Massachusetts is still in its infancy. Its scope, and the procedural mechanisms that govern review of medical parole petitions, will continue to be tested and refined over the coming year.

[1] The Act defines a medical parole plan as: “a comprehensive written medical and psychosocial care plan specific to a prisoner and including, but not limited to: (i) the proposed course of treatment; (ii) the proposed site for treatment and post-treatment care; (iii) documentation that medical providers qualified to provide the medical services identified in the medical parole plan are prepared to provide such services; and (iv) the financial program in place to cover the cost of the plan for the duration of the medical parole, which shall include eligibility for enrollment in commercial insurance, Medicare or Medicaid or access to other adequate financial resources for the duration of the medical parole.” G.L. c. 127 §119A(a). 

[2] Because affected prisoners are frequently infirm, subject to quick health changes, and usually nearing the end of life, expediting certiorari review is often important. See, e.g., G.L. c. 249, §4 (certiorari petitions must be filed within 60 days); Superior Court Standing Order 1-96(2) (administrative record must be filed within 90 days), Superior Court Standing Order 1-96(4) (certiorari action must be resolved through a motion for judgment on the pleadings served within 30 days of the filing of the administrative record).  

[3] As stated in Buckman, the Legislature enacted the medical parole statute to save money on expensive end of life medical care and for reasons of compassion. 484 Mass. at 21-22.

[4] Superior Court judges have also tackled issues related to the Act. See Adrey v. Dep’t of Correction, Suffolk Superior Civil No. 19-3786-H, 2020 WL 4347617 (Mass. Super. June 19, 2020); Mahdi v. Dep’t of Correction, Norfolk Superior Civil No. 19-1064, Memorandum and Order (Mar. 31, 2020).

[5] G.L. c. 127, §119A(g) states: “A decision by the court affirming or reversing the commissioner’s grant or denial of medical parole shall not affect a prisoner’s eligibility for any other form of release permitted by law.” (Emphasis added).

[6] Brief of Respondent-Appellee Department of Correction, Malloy et. al. v. Dep’t of Correction, SJC-12961. 

Jessica Conklin concentrates her practice in white collar criminal defense, government investigations, and school disciplinary hearings. Jessica works with students and their families who attend several local secondary schools, colleges and universities in connection with disciplinary proceedings and title IX investigations. Jessica is also a member of the board of editors for the Boston Bar Journal.


Glendale Associates, LP v. Harris: Due Process Rights of Disabled Tenants under the Massachusetts’ Common Nuisance Statute, G.L. c. 139, § 19

by Courtney Libon

Case Focus 

Since the establishment of the first Massachusetts Housing Court in 1971, the need for the resolution of housing-related disputes has increased exponentially. Under the leadership of the late Supreme Judicial Court (“SJC”) Chief Justice Gants and Trial Court Chief Justice Carey, every community in the Commonwealth now has access to housing court, with expert judges, housing specialists, pro bono resources, and special code enforcement sessions. These features are intended to make courts more user-friendly and to assist pro se litigants in navigating the intricate system of housing court litigation. See Adjartey v.  Central Div. of the Hous. Court Dep’t, 481 Mass. 830 (2019) (“Adjartey”).

Over 60,000 cases are filed in housing courts each year, the vast majority of which are evictions involving a dizzying array of procedural technicalities administered at lightning speed. Tenants can go from first notice to homelessness in just a few days under the Common Nuisance Statute, G.L. c. 139, § 19 (“Nuisance Statute” or “Section 19”); with many more losing their right to possession in the course of a few weeks under the Summary Process Statute, G.L. c. § 239, which expedites civil procedure in evictions. Even with the benefits of specialized housing courts, litigants, a majority of whom are pro se and many of whom have disabilities, struggle to enforce their rights in the high-stakes eviction proceedings.

In a recent decision, Glendale Associates, L.P. v. Harris, 97 Mass. App. Ct. 454 (2020) (“Glendale”), the Appeals Court took the unusual step of shining a light on how, even within the framework of the housing courts’ special benefits and discretion, due process requires that pro se litigants with disabilities be afforded the opportunity to assert their claims and defenses without unreasonable conditions that impede access to justice.

Case Background: Glendale Associates, L.P. v. Harris

On May 20, 2016, Glendale Associates (“Landlord”) brought action in the Eastern Division of the Housing Court Department (“Court”) invoking the Nuisance Statute to void the lease of Kevin Harris, a disabled tenant receiving services from the Department of Mental Health (“DMH”), and seeking an order requiring Mr. Harris to immediately vacate his federally-subsidized apartment. The complaint alleged that Mr. Harris threw bottles from his apartment window targeting the Landlord’s employee. The Nuisance Statute authorizes landlords to seek immediate voidance of the lease of a subsidized tenant who engages in any of enumerated activities under Section 19, including crimes of violence against building employees. G.L. c. 139, § 19. The Court issued, ex parte, a temporary restraining order barring Mr. Harris from entering his home until further order of the Court, and subsequently issued a preliminary injunction without findings that rendered Mr. Harris homeless for the duration of the litigation while he defended the action pro se.

While Mr. Harris denied the allegations in the complaint, the Court focused on a treatment plan to address his mental health impairments and the behavior alleged. On August 9, 2016, Mr. Harris’s DMH case worker submitted a detailed treatment plan that would allow Mr. Harris to return to his apartment and reside there in compliance with his lease as a reasonable accommodation of his disability. The Court rejected the DMH plan and instead crafted and ordered a more onerous plan that, among other requirements, conditioned allowing Mr. Harris to return to his apartment as of September 1, 2016 upon filing of documentation that he was working or attending a day program and otherwise would be out of his apartment for at least five hours per day, and meeting a visiting nurse daily for medication administration notwithstanding that such services could not be arranged during Mr. Harris’s court-ordered  homelessness. The judge also imposed a “gatekeeper order” preventing Mr. Harris from submitting further pleadings or documents without Court permission. Despite repeated efforts by Mr. Harris’s service providers to demonstrate that the conditions in the Court’s treatment plan were not feasible or medically appropriate and to offer alternatives, the Court maintained the requirements of its own ordered plan and continued to find Mr. Harris’s efforts insufficient to allow him to return to his apartment.

On December 4, 2016, the Landlord moved for a default pursuant to Mass. R. Civ. P. 55 on the basis that Mr. Harris failed to answer or “otherwise defend” its complaint, and thereafter, the clerk entered the default without explanation. On January 19, 2017, the Landlord moved for entry of final judgment and issuance of execution for possession based on the default. The Court declined to take action on Mr. Harris’s submissions made in response because he “failed to obtain written permission of the court for filing” as per its gatekeeper order, but also did not act on his subsequent pro se request to file a motion.

At a February 15, 2017 review hearing, the Court stayed its decision on the Landlord’s motion for entry of final judgment and appointed a guardian ad litem (“GAL”) to assist Mr. Harris in compliance with the Court’s treatment plan. Although the GAL diligently complied with his appointment and submitted two reports and a new proposed treatment plan, on May 10, 2017, the Court allowed the Landlord’s renewed motion for final judgment and execution without a hearing, thus depriving Mr. Harris of even the Court-promised opportunity to respond orally at a hearing on the Landlord’s motion, and to otherwise defend himself as to the allegations in the complaint.  Mr. Harris moved for reconsideration, which was denied after hearing.

Court Holdings

In vacating the judgment and remanding the case, the Appeals Court took care to detail the course of the litigation, illustrating why the entry of default was not only legal error but “fundamentally unfair,” an abuse of discretion, and a violation of due process where the Court “bypassed the question of Harris’s liability under Section 19 and proceeded directly to the remedial phase of the litigation,” repeatedly denying Mr. Harris the opportunity to defend against the complaint, including through the gatekeeper order. 97 Mass. App. Ct. at 465. The Appeals Court observed that a default was inappropriate because, at a minimum, Mr. Harris was entitled to an evidentiary hearing under the Nuisance Statute, and his active participation in the litigation through a year of court-ordered homelessness met the standard for “otherwise defending” under Mass. R. Civ. P. 55.

The Appeals Court also provided a useful roadmap for reasonable accommodations in the context of Housing Court proceedings, reminding that: (1) it was the Landlord’s burden — not Mr. Harris’s — to demonstrate, through an individualized assessment and the interactive process, that no reasonable accommodation was feasible, and (2) the trial courts have a duty to make findings sufficient to permit appellate review, “based on current medical knowledge and reasonable judgment and objective evidence,” as to the reasonableness of a proposed plan and whether the risk posed by a disabled resident may be eliminated or acceptably minimized by a proposed accommodation. 97 Mass. App. Ct. at 462-464 (citing to Adjartey, 481 Mass. at 849 and Boston Hous. Auth. v. Bridgewaters, 452 Mass. 833, 850 (2009)). Thus, the Court’s imposition of its own treatment plan, without explanation and findings necessary for appellate review, was an abuse of discretion.

Conclusion

Glendale makes clear that the reasonable accommodation requirements articulated by the SJC in Bridgewater and Adjartey apply equally to emergency proceedings under the Nuisance Statute as other civil proceedings, but do not substitute for the due process rights of all litigants to defend against a complaint. Glendale also powerfully reminds us that evictions result in much more than loss of housing, but may also result in loss of access to medical treatment, systems of support, and educational and employment opportunities. Today, ushered by the COVID-19 pandemic, the stakes are higher than ever. This is a historic moment to consider fundamental change to ensure that all litigants, including disabled and pro se tenants like Mr. Harris, have meaningful and equal access to justice.

Courtney Libon is the Housing and Disability Supervisor at De Novo Center for Justice and Healing.  Prior to De Novo, Courtney was a Staff Attorney at the Legal Aid Society of New York, where she represented individual tenants and tenant associations.


Practice Tips for Navigating the Investigative Process at the Massachusetts Commission Against Discrimination

by Heather E. Hall

Practice Tips

Introduction

Whether you appear regularly before the Massachusetts Commission Against Discrimination (“MCAD” or “Commission”) or are new to the practice, this article provides a general overview of the Commission’s expectations and suggested best practices during the early stages of the MCAD process, from filing a complaint through the issuance of an investigative disposition by an Investigating Commissioner. This article is not a substitute for reading the MCAD’s regulations, which were substantially revised on January 24, 2020, after a lengthy public hearing process. When practicing before the Commission, attorneys should become familiar with the regulations and also review the MCAD’s website, which is regularly updated with changes to processes and other useful guidance.

COVID-19

At the beginning of 2020, MCAD staff worked in four offices, in Boston, Springfield, Worcester, and New Bedford, and were beginning to acclimate to the updated regulations. Due to the COVID-19 public health crisis, during the week of March 16, MCAD staff began telecommuting. Over the course of the telecommuting period, the Commission adjusted various processes in order to continue the majority of its operations. Where applicable, changes made due to COVID-19 will be discussed herein.

In early June 2020, the MCAD began the process of phasing staff back into the offices.  At the time of this article, most of the employees work at least one day per week in the offices, with administrative staff working in the offices at least two days per week. Attorneys should be mindful of the MCAD’s limited in-office capacity during the pandemic. In this vein, the MCAD encourages the use of email whenever possible.

Investigations Division Overview

The Investigations Division is comprised of nine units with approximately 50 people, including Administrative staff, who assist with document organization and processing; Investigators and Investigative Supervisors, who conduct the investigations; Attorney Advisors, who provide legal guidance and support to the investigative staff; and the Deputy Chief and Chief of Investigations, who manage the personnel and overall operations of the Division. The MCAD processes approximately 3,000 complaints each year. The agency saw an uptick of over 300 more complaints filed in 2019 than in 2018.

Complaints  

Manner of Filing

The 2020 MCAD Procedural Regulations, 804 CMR § 1.04(2), speak to the manner of filing complaints, but processes have been adjusted due to COVID-19. There are currently three ways to file a complaint with the MCAD: (1) via U.S. mail (“mail-in” complaints by attorneys and pro se complainants); (2) via email through the MCAD e-complaint portal (attorneys only); and (3) via phone with an Intake Specialist (pro se complainants only). The MCAD issued its “Guidance for Attorneys and Duly Authorized Representatives During the COVID-19 Public Health Crisis” on April 1, 2020 (“April 2020 Guidance”). (If you would like a copy, please contact the MCAD at: mcad@mass.gov.) As noted in the April 2020 Guidance, if attorneys are unable to obtain the complainant’s signature on the complaint, the complaint must include an email verification from the complainant stating that the complaint is made under the pains and penalties of perjury.

Attorneys are strongly encouraged to file complaints via the online portal at: https://massgov.formstack.com/forms/mcad_ecomplaint_filing_portal. If you choose to file a “mail-in” complaint, please do not also file an e-complaint, as this creates an additional administrative burden. Since the MCAD offices are currently still closed to the public, in-person intake services for pro se complainants have been suspended until further notice. For more information, see our “MCAD COVID-19 Information and Resource Center.”

Statute of Limitations

Pursuant to M.G.L. c. 151B, § 5, and 804 CMR § 1.04(3), a complaint must be filed within 300 days after the alleged discriminatory conduct. Under the April 2020 Guidance, the individual Commissioners will consider extending the filing deadlines on a case-by-case basis in extenuating circumstances.

Information in Complaints 

When filing, attorneys must: (1) provide the complainant’s and respondent’s full contact information, including address, phone numbers, and email addresses, if available; (2) identify applicable protected classes to which the complainant belongs and cite to the appropriate statutory authorities; and (3) provide specifics regarding dates, names, and positions of the persons alleged to have committed unlawful discriminatory acts.

Key Tip:  Before submitting a complaint to the MCAD, conduct a full interview with the complainant and an investigation of the facts of the complaint, to ensure compliance with the regulations.

Pseudonym Complaints

An Investigating Commissioner may allow a pseudonym complaint to proceed “when a specific overriding reason for confidentiality unique to complainant and substantial safety or privacy interests are demonstrated.” 804 CMR § 1.04(7). If an attorney wishes to file a pseudonym complaint, the complaint itself “shall not include the identity of the complainant” and the attorney must simultaneously file a motion to allow the use of a pseudonym. 804 CMR §§ 1.04(7)(a) and (b).

Withdrawal of a Complaint

Complainants may request to withdraw a complaint filed at the Commission. 804 CMR § 1.04(12). A required withdrawal form is available on the MCAD’s website.

Answers/Position Statements

Respondents must file an answer to the complaint in the form of a position statement. 804 CMR § 1.05(8).   The revised regulations have strict deadlines with respect to extensions for filing position statements. The deadline for filing a position statement regarding employment, public accommodation, education, or non-HUD housing complaints, is “within 21 days of receipt” of the complaint. 804 CMR § 1.05(8)(a)1. With respect to extensions, the regulations provide, “Upon written request by the respondent, and for good cause shown, the Commission may grant an extension… not to exceed 21 days absent exceptional circumstances.” 804 CMR § 1.05(8)(a)1. The deadline for position statements in HUD housing complaints is within 14 days of receipt of the complaint. 804 CMR § 1.05(8)(a)2.a. Requests for extensions in HUD complaints are “strongly discouraged” due to the timelines set by HUD. 804 CMR § 1.05(8)(a)2.b.

Position Statement Contents

Full and complete position statements are essential to the MCAD’s investigative process.  Position statements should include responses to all the allegations in the complaint. Respondents must also provide evidence and supporting documentation for all defenses, including but not limited to, comparators, internal investigations, policies cited, and performance records, where applicable. Supply the dates of the incident(s). If the respondent does not know the specific date(s), be as specific as possible and give a time frame. Do not wait until an investigative conference or a request from the Investigator to submit this information.

Key Tip: Remember to affirm the position statement in compliance with 804 CMR § 1.05(8)(d)1, which requires each named respondent to sign the position statement “under the pains and penalties of perjury.”

Rebuttals

“Rebuttals to the position statement are not required, but are strongly encouraged…”   804 CMR § 1.05(9)(a). While the regulations allow for pro se complainants to submit verbal rebuttals, attorneys must submit rebuttals in writing. 804 CMR § 1.05(9)(b)1.

Key Tip:  Use the rebuttal to clarify and amplify the facts of the complaint and present cogent legal arguments.  Do not simply reiterate the facts in the complaint.

Mediation 

The MCAD offers mediation services free of charge. 804 CMR § 1.06(1). The MCAD encourages parties to engage in productive communications regarding early resolution in their cases. In most cases, however, a Position Statement must be submitted prior to the mediation. This allows mediators to get a full picture of the parties’ arguments and makes the mediation process more effective. In the wake of COVID-19, the Commission suspended in-person mediation services and is currently conducting them via video, or telephonically if a party’s available technology is limited to telephone conferencing.

Key Tip: Do not come to a mediation without a command of the facts, a proposal, and authority to settle.

Investigative Conferences

Pursuant to 804 CMR § 1.05(10)(a), “[t]he Commission may convene an investigative conference for the purpose of obtaining evidence, identifying issues in dispute, ascertaining the positions of the parties, and exploring the possibility of settlement.” Although the MCAD does not conduct investigative conferences in every case, they can be a valuable investigative tool. The complainant’s and respondent’s attendance at the investigative conference is mandatory.  804 CMR § 1.05(10)(e). The Investigator conducting the conference may question the parties about issues under investigation and may permit the parties to make a brief statement. 804 CMR § 1.05(10)(d). The MCAD is currently conducting investigative conferences telephonically. The Investigator will contact the parties regarding the logistics for the teleconference.

Key Tips: Remember that the investigative conference is a tool for the investigation and not a forum for adversarial posturing. Use the opportunity wisely to present relevant facts and evidence, and listen closely to the information the Investigator is seeking. If parties have questions about their obligation to provide materials to the other party, they should ask the Investigator for guidance. Further, attorneys should be mindful of their obligation to “refrain from including” or “partially redact” personal data identifiers from “all filings and exhibits submitted to the Commission.” 804 CMR § 1.21(4).

Investigative Dispositions

Upon conclusion of the investigation, the Investigating Commissioner issues an investigative disposition. 804 CMR § 1.08. Dispositions are generally served via U.S. mail. During the COVID telecommuting period, however, the Commission is also serving dispositions via email.

The types of investigative dispositions include: credit granted to another forum’s investigation; dismissal based on withdrawal of the complaint, lack of jurisdiction, settlement, or the public interest; and post-investigation substantive dispositions, also referred to as causal determinations. 804 CMR § 1.08(1)(a)-(f).

Causal determinations include, probable cause (“PC”), where the “Investigating Commissioner concludes…that there is sufficient evidence upon which a fact-finder could form a reasonable belief that it is more probable than not that respondent committed an unlawful practice”; lack of probable cause (“LOPC”), where the Investigating Commissioner finds that “there is insufficient evidence to support a determination of probable cause to credit the allegations in the complaint…” and the complaint is dismissed; and split PC and LOPC decisions. 804 CMR § 1.08(f)1.-3.

Appeals and Motions to Reconsider 

If the Investigating Commissioner issues an LOPC determination, the complainant may appeal to the Investigating Commissioner “by filing a written request for a preliminary hearing with the Clerk’s Office within ten days after receipt of the notice of investigative disposition or dismissal.” 804 CMR § 1.08(b). A determination on an appeal of an LOPC finding may not be appealed to the Commission or to the Superior Court under G. L. c. 30A. 804 CMR § 1.08(4)(b)3.

In the event of a PC determination, a respondent may move for reconsideration in writing for “good cause at any time prior to the certification conference…or within 45 days of certification to public hearing… if no certification conference is held.” 804 CMR § 1.08(4)(a)1. If the Investigating Commissioner reverses or modifies a PC determination, the decision too is not appealable. 804 CMR § 1.08(4)(a)6.

The MCAD is currently conducting hearings on appeals telephonically.

Key Tip: Do not simply reiterate the facts, evidence and law presented in the course of the investigation. Use the appeal hearing and motions for reconsideration as an opportunity to present new facts or evidence unknown or unavailable during the investigation and/or material errors of fact or law.

Conciliation

If a PC determination is upheld, the next step in the process is a mandatory conciliation conference held with an Investigating Commissioner or designee. For more information on the post PC phases of the MCAD’s processes, see 804 CMR § 1.09 et seq.

Conclusion

We are facing challenging times that can create stress and uncertainty. While the MCAD understands the difficulties presented by COVID-19, we ask that attorneys comply with the regulations and keep informed of any COVID-19 related changes in the MCAD’s processes to ensure that their clients’ rights are well served.  Finally, maintaining collegiality and patience with your fellow members of the bar and the Commission’s staff goes a long way in helping us all weather these unchartered waters.

Heather Hall has served as the Chief of Investigations for the MCAD since 2018. Previously, she served as the Deputy Chief Legal Counsel, then Director of Internal Investigations at the Middlesex Sheriff’s Office. She also served as an attorney in the legal offices of two other public safety agencies, an appellate Assistant District Attorney, and a law clerk. She extends special thanks to her colleagues Geraldine A. Fasnacht, Esq., Supervisor, Attorney Advisors Unit, and Nicole L. Leger, Esq., Supervisor, Unit 1, for their input on this article.