The Fiduciary Litigation Session

Bob ORegan_102x126by Robert J. O’Regan

Heads Up

There is good news that a second courtroom will shortly expand the Fiduciary Litigation Session of the Probate and Family Court.  This is a pilot program under Standing Order 3-17 (as amended) for complex probate and trust cases.  The FLS gives lawyers and judges a solution to the problem that these complex cases seem to not receive the time or attention that they require in the regular sessions of the overwhelmed Probate and Family Court.

Modeled after the successful Business Litigation Session of the Superior Court, the FLS allows for the transfer of complex contested cases and a narrow band of uncontested cases from courts in Essex, Middlesex, Norfolk, Plymouth, and Suffolk Counties.  It provides capacity, improved case management, and specialized expertise for the most difficult portions of the caseload within the court’s historical jurisdiction.  Cases that qualify for transfer must be non-routine and include will contests, determination of heirs, interpretation of instruments, removals and appointments of fiduciaries, contested fiduciary accounts; and equity actions alleging breaches of fiduciary duty, seeking instructions, and to determine title.

For some time, the probate bar in particular has expressed a sense of frustration that these cases often languish on the crowded dockets of the Probate and Family Court.  As the court’s jurisdiction and responsibilities expanded, particularly after enactment of the equitable division statute and expansion of protective proceedings, the resources in the Probate and Family Court did not keep pace.  Probate and Family Court judges now take the bench with more experience in areas other than probate and trust law.  These have combined to create an impression that matters involving will contests, trust interpretation, and fiduciary accounts are dry academic exercises to be taken up as a last resort.  More than just helping to clear the caseload, the FLS demonstrates the court’s understanding that ongoing trust and estate disputes prevent closure after the death of family members, and that beneficiaries are harmed by delayed (or blocked) distributions or fiduciary misconduct.

These are reasons why transfer into the FLS is intended to be simple and quick. Only cases in which all parties have counsel are eligible.  Transfers can be initiated by the session judge or an attorney, and virtually all requests have been granted.  A key pivot point in the process is that the session judge must recommend the transfer.  Transfers are completely administrative, require no hearing, and are not appealable.

A simple on-line form on the court’s website starts the process. The instructions are clear and easy to follow.  Joint applications are encouraged.  Argument and attachments of court filings are prohibited.  Applications should point out why the expertise and case management advantages of the FSL will move the case to settlement or disposition more effectively.  Objections are due ten days from service of an application.  They should point out why the case is not complex and raise potential conflicts with a transfer.   Both applications and objections must be sent to the session judge and office of the Chief Justice of the Probate and Family Court.  If the session judge recommends transfer, it is then screened by the FLS judge.  To date, only three transfer requests have been screened out at this stage.

Pending motions or assigned trial dates in a case will likely not affect whether a transfer request is allowed, but rather how it is managed in the FLS.  If the issues straddle probate and equity dockets, discovery is mired down, multiple experts or medical evidence will be required, or several days of trial time are unavailable in the session within a reasonable time, the case should be considered for a transfer request.

Because the FLS is intended to promote best case management practices, the standing order requires a case management conference to be held within thirty days after the transfer.  The conference will develop a plan to resolve the case efficiently using any tools available such as ADR, pre-trial procedures, and trial schedules.  If the case arrives in the FLS with pending motions, hearing dates will likely be set then for quick disposition.  Litigants can expect a clear, firm scheduling order to result from the initial conference.

Improved file and time management steps are emphasized by the FLS.  Inter-county assignments cause headaches with file maintenance and docketing, but not with the FLS.  Under the Standing Order, all filings are to be made directly to the FLS session, and manages docketing with the originating court electronically.  To the extent feasible, the FLS uses conference calls and videoconferencing when an in-court appearance is unnecessary.  E-mail for notifications, service, and filings also speeds up the process.

Reception for the FLS has been very positive.  Lawyers need not be concerned that a session judge may take offense at a request to transfer a case to the FLS.  To the contrary, an unscientific survey of judges and court staff shows that session judges generally welcome these applications.  A goal is to make it available state wide within the foreseeable future.

Robert J. O’Regan is a partner with Burns & Levinson, LLP.  He is past co-chair of the BBA Fiduciary Litigation Committee and past president of the Massachusetts Probate and Family Inn of Court.


In a Matter of First Impression, the Supreme Judicial Court Narrows the In Pari Delicto Defense

Emily Renshaw_102x126Jason Frank_102x126by Emily E. Renshaw and Jason D. Frank

Case Focus

In Merrimack College v. KPMG LLP, 480 Mass. 614 (2018), the Supreme Judicial Court limited the equitable doctrine of in pari delicto, which bars a plaintiff who has participated in wrongdoing from recovering damages for related losses. Vacating an order granting summary judgment for the auditor defendant, KPMG, the SJC held for the first time that, under the in pari delicto doctrine, only the conduct of “senior management,” those who are “primarily responsible for managing” a plaintiff entity, may be imputed to that entity. Merrimack could have broad implications for professional services providers and will likely lead to the further development of in pari delicto jurisprudence in Massachusetts.

The In Pari Delicto Doctrine

In pari delicto, Latin for “in equal fault,” is an equitable doctrine that courts historically have used to assign blame. In Massachusetts, the doctrine has generally operated to bar a plaintiff who engaged in intentional wrongdoing from recovering from a defendant who was an accomplice or co-conspirator. (Where a plaintiff and defendant are merely negligent, the Massachusetts comparative negligence statute, M.G.L. c. 231, § 85, applies.) The practical import of the in pari delicto doctrine is that the law “‘will not recognize a right of action’ based on inequitable conduct.” Merrimack Coll. v. KPMG LLP, 34 Mass. L. Rptr. 220, at 2 (Mass. Super. Ct. May 15, 2017).

Facts and Procedural History

Merrimack College incurred more than $6 million in losses as a result of a fraudulent scheme by its former Financial Aid Director, Christine Mordach. Unbeknownst to students who had received grants and scholarships, Mordach replaced some grants and scholarships with federal Perkins loans, which she approved without the students’ knowledge or consent.  As a result, Mordach was able to make her budget appear more balanced (reducing projected scholarship expense and ultimately increasing tuition revenue).  The unsuspecting students were saddled with debt they did not need (they were supposed to receive grants or scholarships) and had neither requested nor agreed to repay. Mordach pleaded guilty to federal charges, was sentenced to prison, and ordered to pay approximately $1.5 million in restitution.

Merrimack sought to recover its losses from its independent auditor, KPMG, bringing suit for breach of contract, negligence, negligent misrepresentation, professional malpractice, and violation of M.G.L. c. 93A, and contending that KPMG failed to detect Mordach’s fraud. KPMG moved for summary judgment, arguing, in part, that Merrimack’s claims were barred by the in pari delicto doctrine.  Merrimack contended that it should not be held liable for the misdeeds of a low-level employee.

The Trial Court Decision: In Pari Delicto Bars Recovery

The trial court granted summary judgment in favor of KPMG.  Relying on traditional principles of agency law, the court concluded that Mordach’s conduct was properly imputed to Merrimack. It deemed her to be a “relatively high-level staffer,” noting that, as Financial Aid Director, Mordach had overseen the award and distribution of almost $150 million in financial aid and had signed numerous annual management representation letters to KPMG. Merrimack Coll. v. KPMG LLP, 34 Mass. L. Rptr. 220, at 5. Furthermore, the court explained that in Massachusetts there is no “low-level employee” exception to the law holding employers vicariously liable for employee conduct. Id. at 4.

The trial court also concluded that Mordach’s fraud was “far more serious” than KPMG’s alleged negligence in failing to uncover it, thus further barring Merrimack’s recovery under the in pari delicto doctrine. Id. at 7.

Following the majority of courts, the court declined to recognize a blanket “auditor exception” to the doctrine, noting that such an exception would be inconsistent with Massachusetts law (which in the analogous context of legal malpractice, bars clients who engage in wrongdoing from suing their attorneys for joining in the wrongdoing. See Choquette v. Isacoff, 65 Mass. App. Ct. 1, 7-8 (2005)). Merrimack appealed from the grant of summary judgment, and the SJC accepted direct appellate review.

The SJC Decision

The SJC vacated the grant of summary judgment. Observing that he was writing on “essentially a clean slate of Massachusetts law,” Chief Justice Gants based his ruling on the purposes of the in pari delicto doctrine and principles of imputation. 480 Mass. at 626. In pari delicto, the court explained, is an equitable doctrine “focused squarely on the moral blame of the parties.” Id. at 621-22. The rules of imputation, on the other hand, are designed to allocate fairly risks between principals and innocent third parties. Id. at 621. Traditional rules of imputation under Massachusetts common law, the court noted, “are not without their limits,” and are inapplicable where the aim is to assign blame rather than allocate risk. Id. at 626-27. For example, when determining whether punitive damages—which require “a moral judgment” of the defendant’s conduct—are warranted against an employer for an employee’s misconduct, the court departs from traditional imputation rules. Id. at 627-28. In that circumstance, the court explained, the key factor is whether “members of senior management” are morally blameworthy by participating or acquiescing in the misconduct; “[t]he misconduct of lower-level employees—even those at the supervisory level—is insufficient to warrant punitive damages.” Id. at 628.

For similar reasons, the SJC held that under Massachusetts common law, a corporate entity’s “moral responsibility” can be measured only by the conduct of “senior management—that is, the officers primarily responsible for managing the corporation, the directors, and the controlling shareholders, if any.” Id. In Merrimack, the court ruled for the first time that, under the doctrine of in pari delicto, only the intentional misconduct of “senior management” may be imputed to the plaintiff and, “only then, will a court need to consider whether application of the doctrine would comport with public policy.” Id.

On this matter of first impression, while leaving open to interpretation the term “senior management,” the SJC observed that Mordach was not a member of senior management whose conduct could be imputed to Merrimack under the doctrine of in pari delicto. Although Mordach had substantial responsibilities as Financial Aid Director, she was “not among the select few who were primarily responsible for the management of the college[.]” Id. at 629.

The SJC declined to carve out as a matter of public policy an auditor exception to the in pari delicto doctrine, which the Court opined was unnecessary to its decision. The Court further raised a question about the intersection between the in pari delicto doctrine and another statute, M.G.L. c. 112, § 87A3/4, which provides for the apportionment of losses in cases involving an accounting firm in which a claim or defense of fraud is raised against the plaintiff or another party. The Court declined, however, to interpret the statute, noting that on remand the trial court may do so and consider its proper application. Id. at 632.

The Court made clear that its decision was narrowly confined to the question of imputation in the application of the in pari delicto defense. Thus, there seems to be no change in Massachusetts law with respect to the imputation of conduct by non-senior management for purposes of Massachusetts’s other comparative fault statutes or common law.

Implications

Merrimack could have broad implications for professional services providers, and the issues identified in the decision likely will lead to the further development of in pari delicto jurisprudence in Massachusetts. Notably, the SJC did not provide analytical tools to determine precisely what constitutes “senior management” for purposes of the in pari delicto doctrine. For example, applying Merrimack, will courts impute to a plaintiff corporation the conduct of a corporate controller who manages a 100-person finance department, and engages in a multi-million-dollar accounting fraud scheme? Merrimack may also result in strategic behavior by buyers and providers of professional services, as they seek to allocate and minimize risk, and such behavior may increase costs of service providers in Massachusetts. Following Merrimack, it is even more critical than ever for service providers to carefully define the scope of their corporate engagements, particularly in the context of audits and investigations.

Emily E. Renshaw is a partner at Morgan, Lewis & Bockius LLP in Boston.  Emily focuses her practice on securities litigation and complex business matters. She represents a diverse client base in an array of matters including shareholder and consumer class actions, derivative actions, governmental, regulatory, and internal investigations, and all forms of contractual disputes and business torts. She represents clients before state and federal courts at the trial and appellate levels and in regulatory proceedings before federal and state securities agencies.

Jason D. Frank is a partner at Morgan, Lewis & Bockius LLP in Boston. For the last two decades, Jason has represented clients in shareholder class actions, derivative suits, SEC proceedings, internal investigations, and a broad array of complex business litigation, including auditor malpractice. He has litigated in trial and appellate courts throughout the United States, appearing before courts in virtually every federal circuit.


Look no Further! The Scope of Consent Searches After Commonwealth v. Ortiz

Langsam

by Jessica Langsam

Case Focus

In Commonwealth v. Ortiz, 478 Mass. 820 (2018), a closely-divided Supreme Judicial Court held that, under the Fourth Amendment and article 14 of the Declaration of Rights, a suspect’s consent to search for weapons or drugs “in the vehicle” does not include consent to search under the hood (and under a removed air filter) unless it is “reasonably clear” to a “typical reasonable person” that consent extends beyond the interior of the vehicle and the trunk. Id. at 826-27. The case turned on the scope of the suspect’s consent and the application of the settled rule that “[t]he standard for measuring the scope of a suspect’s consent under the Fourth Amendment [and article 14] is that of ‘objective’ reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Id. at 824 (quoting Florida v. Jimeno, 500 U.S. 248, 251 (1991)). Ortiz considered “the words spoken” in the exchange to be informed only by “the context” as it existed during that time, id., a narrower period than in previous cases and one that excludes a suspect’s lack of objection when his consent to the scope of the search is deemed ambiguous.

Background

An officer stopped the defendant’s car and asked if there was anything “in the vehicle that the police should know about, including narcotics or firearms.” Ortiz, 478 Mass. at 821. The defendant replied, “No, you can check.” Id. He exited the vehicle at an officer’s request and was then handcuffed. Id. at 821-822. A drug-detection dog walked around the vehicle but did not alert. Id. at 822. Officers searched the vehicle’s interior but found no contraband. Id. They then raised the hood, removed the air filter, and found a bag containing firearms. Id. The defendant watched from the side of the road but did not object. Id. He was arrested and subsequently told officers that the firearms belonged to him and that he had given consent to look in his vehicle. Id.

The defendant sought to suppress the firearms and his statements on the ground that the search unconstitutionally exceeded the scope of his consent. Id. After an evidentiary hearing, the court suppressed the evidence, ruling that although the defendant’s consent was free and voluntary, when the officer asked only about items “in the vehicle,” a typical reasonable person would understand the scope to have been limited to the interior, and the scope of the defendant’s consent was not expanded by his lack of objection during the search. Id. at 822-823.

The Majority Opinion

In this 4-3 decision, the SJC affirmed suppression, concluding that the defendant’s consent was limited to a search of the vehicle’s interior, which included, the Court said, the passenger compartment and the trunk. The majority cited a similar conclusion by the Tennessee Supreme Court in State v. Troxell, 78 S.W.3d 866 (Tenn. 2002). Ortiz, 478 Mass. at 824. There, an officer asked the driver of a pickup truck whether he had “any weapons in the vehicle”; the driver replied “no, nothing”; the officer asked, “Okay if we take a look?”; and the driver answered, “Yeah, go ahead.” Id. (emphasis in original). As the SJC noted, Troxell concluded that “[t]he verbal exchange therefore expressly indicated” that the officer intended to search “in the vehicle” (i.e., the cab) and that it was therefore “objectively reasonable to conclude that the consent to search included only the interior.” Id. (quoting Troxell, 78 S.W.3d at 872).

In essentially an alternative ruling, the majority stated that as a matter of fairness, the scope of consent, like voluntariness, must be unambiguous and that the scope of consent here was ambiguous and suppression was warranted because the police may not take advantage of an ambiguity that could be resolved with a clarifying question. Id. at 825-826. The Court held that “unless it is reasonably clear that the consent to search extends beyond the interior of the vehicle, the police must obtain explicit consent before a vehicular search may extend beneath the hood.” Id. at 826-827. It held that where, as here, the scope of consent to search was not reasonably clear, the defendant’s silence when the search extended to the hood was not a substitute for consent but was rather “mere acquiescence to a claim of lawful authority” and his failure to revoke consent was not an agreement to expand the scope beyond its initial limit. Id. at 827.

The Dissent

The dissent would have reversed suppression, noting that to apply the standard interpreting a suspect’s consent to search required considering not only the exchange itself but also the “facts and circumstances surrounding” it, including whether the defendant limited the scope, and, as stated in Jimeno, the “expressed object” of the search. Id. at 827-28. Concluding that the defendant did not limit consent to the interior and trunk, the dissent pointed to his “unqualified and unambiguous general consent” in response to the officer’s request to search for “any narcotics or firearms in the vehicle” and his lack of objection when officers looked under the hood, which would indicate to a “typical reasonable person” that he “authorized the entire search.” Id. at 828.

The dissent noted that whereas Troxell concluded that “in the vehicle” referred to the pickup’s cab, the Ortiz majority concluded that “in the vehicle” referred to the cab plus the trunk – and that there was no “meaningful difference” between the trunk and the hood because both were beyond the passenger compartment and opened separately. Id. at 828-29. The dissent also noted that Troxell’s “narrow focus on the colloquial use” of “in” ignored the conversation’s subject matter, and that Troxell’s search was more extensive in kind and duration and included a drug detection dog, an officer’s examination of the vehicle’s underside and gas tank, and removal of the gas tank at a service station (to which the defendant was instructed to drive), where drugs were found. Id. at 829. In contrast, the dissent found no ambiguity in the defendant’s consent to the scope of the search and noted that his failure to object when the search moved to the hood further evidenced his initial authorization for that portion of the search. Id. at 830.

Consent Searches Post-Ortiz

Cases prior to Ortiz considered a broader context to ascertain the scope of a suspect’s consent, including whether the defendant objected. In Commonwealth v. Gaynor, 443 Mass. 245, 255 (2005), cited by the Ortiz majority and dissent, the defendant argued that the scope of his consent was limited by what officers told him, which was that they wanted to test his blood and compare the results with results of testing connected to one victim. Id. However, the Gaynor Court held that a reasonable person likely would have concluded that the police were seeking the defendant’s blood test results, including his DNA profile, that the scope was not limited to the current investigation (there were additional victims), and that the defendant never limited the scope. Id. at 255-56. See, e.g., Commonwealth v. Caputo, 439 Mass. 153, 163 (2003) (holding that when defendant invited officers inside residence and then said that he did not want to talk with them, but did not ask them to leave and did not object when two officers reentered after inspecting his car, invitation to enter was not circumscribed). By way of explanation for limiting the context to only the exchange between the suspect and police, the majority noted that the law is already “quite protective of law enforcement” in that consent may be found valid even when the suspect was not informed of and was unaware of his right to refuse. Ortiz, 478 Mass. at 826.

Going forward, police who want to search a suspect’s vehicle should choose their words carefully and obtain explicit consent for a search beyond the vehicle’s passenger compartment and trunk. A suspect’s consent will likely not be held to be any broader than the plain language of that exchange and could turn, as it did here, on what the meaning of “in” is.

Jessica Langsam is Senior Appellate Counsel at the Middlesex District Attorney’s Office.  She has litigated motions to suppress and cases at trial and has argued before the Appeals Court and the Supreme Judicial Court.  This article represents the opinions and legal conclusions of its author and not necessarily those of the Middlesex District Attorney’s Office.


Massachusetts Adopts “Red Flag” Law

Stevens

by Bethany Stevens

Heads Up

Massachusetts law has long provided two tools to suspend a person’s lawful access to firearms:  a firearms licensing authority could suspend a person’s license to carry or possess a firearm if it found the person was unsuitable, or a court could — indeed, is required to — suspend a firearms license and order the surrender of the person’s firearms after finding a substantial likelihood of an immediate danger of abuse of a household or family member pursuant to G.L. c. 209A.  Massachusetts has now added a third tool, modeled after “red flag” laws in other states, to allow seizure of the firearms of persons who present a risk to themselves or others.  As of August 17, 2018, the District Court and Boston Municipal Court may now issue an “extreme risk protection order” to compel a person to immediately surrender firearms and ammunition on the petition of a household member, family member or licensing authority without the need for a finding of abuse.  See G.L. c. 140, §§ 131R-131Z.

What is an Extreme Risk Protection Order?

An extreme risk protection order (sometimes referred to as an “ERPO”) immediately suspends a person’s license to carry or possess a firearm and directs the person to immediately surrender their firearms licenses, guns (including stun guns), and ammunition to the licensing authority in the municipality where the person resides.  An ERPO may issue only upon a finding that the person “poses a risk of bodily injury to self or others by being in possession of a [firearms license] or having in his control, ownership or possession [guns or ammunition].”  G.L. c. 140, § 131T(a). While the order is in effect, the respondent is disqualified from obtaining a firearms license and is prohibited from possessing a firearms license, gun or ammunition.  A violation of the order is a misdemeanor criminal offense.

Who Can Seek an Order?

The new law allows a household or family member, defined as those phrases are used in G.L. c. 209A, to file a petition with the court upon “belie[f] that a person holding a license to carry firearms or a firearm identification card may pose a risk of causing bodily injury to self or others.”  G.L. c. 140, § 131R.  A petition may also be filed by the licensing authority where the respondent resides (defined as “the chief of police or the board or officer having control of the police in a city or town, or persons authorized by them,” G.L. c. 140, § 121).  In some instances, the licensing authority where the respondent resides will not be the authority that actually issued the respondent’s firearms license(s) because a person could be licensed by the police department of the municipality in which the person works or because a person might move to a different municipality after licensing.  G.L. c. 140, §§ 129B(1), 129B(11),  and 131(d).

Individuals who are not family or household members may not petition a court for an ERPO, even though in appropriate instances they may seek a harassment protection order under G.L. c. 258E.  Chapter 258E does not authorize a harassment prevention order to include an order to surrender firearms.  J.C. v. J.H., 92 Mass. App. Ct. 224, 230 (2017).  As a result, if an individual who is not a member of a license-holder’s family or household believes that a license-holder poses a risk to themselves or others, the individual should seek appropriate relief by reporting the information to an eligible ERPO petitioner.

Procedure to Issue an Order

The new law bears many procedural similarities to G.L. c. 209A.  A petitioner who seeks an ERPO must file a petition signed under the pains and penalties of perjury.  If on review the judge “finds reasonable cause to conclude that the respondent poses a risk of bodily injury to self or others” by possessing a firearms license, guns or ammunition, the judge may issue an emergency or temporary extreme risk protection order without first giving notice to the respondent.  G.L. c. 140, § 131T(a).  An emergency order issued during court hours is valid for only 10 days.  Like an emergency order under c. 209A, an emergency ERPO issued after court hours by an on-call judge is valid only until the end of the next court day.  If a petitioner seeks to have such an “after hours” emergency order extended beyond the next court day, the petitioner must appear during court hours for a hearing at the appropriate court with jurisdiction over the city or town where the respondent lives.

Because an ERPO suspends a person’s lawful access to guns and ammunition, an ERPO will not issue when the person has no license to suspend. Rather than issuing an ERPO, the court will provide the information to police to take whatever action is warranted when they learn information related to the illegal possession of firearms. If in these circumstances the petitioner is a household or family member concerned about their own safety, they should consider seeking a c. 209A order.

For an ERPO to be extended up to one year, the court must hold a hearing within ten days of the filing of the petition with notice to the respondent at least seven days prior to the hearing. The respondent can waive this notice period.  If the respondent files an affidavit stating that guns are required in the performance of the respondent’s employment, the hearing must be held within two days of the petition being filed. At the hearing, the petitioner must establish by a preponderance of the evidence that the respondent poses a risk of bodily injury to self or others by possessing guns or ammunition. If the judge so finds, the judge must issue an order for up to one year.  Either party may move to modify, suspend or terminate an active order.  Appeals of ERPO proceedings may be taken to the Appeals Court just as c. 209A orders may be appealed.

Effect of an Order

Whenever a court issues an ERPO, the licensing authority and the criminal justice information service database (CJIS) must be notified.  This triggers suspension of any Massachusetts firearms license and disqualifies the respondent from obtaining a new firearms license in Massachusetts.  This is the same process that occurs when a c. 209A order issues:  CJIS and licensing authorities are notified of c. 209A orders as such orders generally require immediate suspension of a firearms license and surrender of guns and ammunition.  G.L. c. 209A, §§ 3B and 3C.

The new statute allowing courts to issue extreme risk protection orders does not replace a licensing authority’s ability to suspend a firearms license.  Therefore, under G.L. c. 140, § 129B (firearm identification cards) or § 131 (licenses to carry), the chief of police who issued the license or their designee may still suspend a person’s license and require surrender of guns and ammunition upon finding the licensee “unsuitable.” This determination by the licensing authority results in immediate suspension of the firearms license without the need for a court ruling.

Restoration of Firearms License

While issuing an extreme risk protection order is a process separate from the licensing authority’s determination of suitability, the two processes converge upon an ERPO’s expiration or termination.   After an ERPO is issued, a firearms license, guns, and ammunition may be returned to the respondent only after the licensing authority where the respondent resides determines that the respondent is suitable. A determination of unsuitability must be based either on reliable information that the person “has exhibited or engaged in behavior to suggest the [person] could potentially create a risk to public safety” or on “existing factors that suggest that the [person] could potentially create a risk to public safety.”  G.L. c. 140, § 129B(1½)(d) . If denied reinstatement, a respondent presumably could seek judicial review under existing license appeal procedures, although the new statute does not explicitly provide for such judicial review.

Reports on the New Law’s Use

By December 31, 2018, we will learn more about the utility of this new law.  The court must provide an annual statistical report on its use, including the number of petitions filed, petitions granted, and petitions that led to surrender of guns, as well as demographic information about respondents and petitioners.  In the meantime, information about extreme risk protection orders and the forms a petitioner is required to file can be found on the court’s website. 

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


Reflections on the Supreme Judicial Court Committee on Grand Jury Proceedings

Ullmann

by Hon. Robert L. Ullmann

Voice of the Judiciary

Advising the Commonwealth’s highest court about an institution older than the Massachusetts Constitution, and one that operates in secrecy, was the daunting mandate given to the 14 members of the Supreme Judicial Court Committee on Grand Jury Proceedings (“SJC Grand Jury Committee”).

The Supreme Judicial Court (“SJC”) appointed us last year to gather information about how prosecutors present evidence to and instruct grand juries, and to seek to identify “best practices” for grand jury presentments.

Not surprisingly, given the committee’s composition of prosecutors, defense attorneys, sitting and retired judges, and one law professor, the search for best practices involved extensive and at times passionate debate.  Perhaps surprisingly, the committee was able to reach consensus on a significant number of best practices in six core areas of grand jury activity, with extensive input from the bar, in particular the Commonwealth’s prosecutors’ offices.

The committee’s Final Report, issued in June, is available on the Supreme Judicial Court website.

Grand juries hear and view evidence presented by prosecutors and decide whether probable cause exists to return indictments on felony charges.  Like trial jurors, grand jurors are chosen from randomly selected groups of citizens (venires) summoned to courthouses in each county.  Unlike trial court proceedings, however, judges and defense lawyers are not present for grand jury proceedings, and a grand jury witness’s lawyer may be present solely to advise the witness.  The judicial branch oversees the grand jury, but prosecutors run the grand jury’s day-to-day activities.

In identifying best practices, the committee recognized that grand jury presentment is a prosecution function that the SJC has described as subject to “limited judicial review.” Commonwealth v. Noble, 429 Mass. 44, 48 (1999).  However, committee members also recognized that the grand jury is “an integral part of the court,” and that judges have a “duty to prevent interference with [grand jurors] in the performance of their proper functions, to give them appropriate instructions, and to assist them in the performance of their duties.”  In re Pappas, 358 Mass. 604, 613 (1971).

The best practices address issues such as what to do when grand jury subpoenas yield evidence that the prosecutor deems too inflammatory to present to the grand jury; when grand jurors should be instructed on defenses to the crime or on lesser included offenses or other less serious charges than the most serious potential charge; what warnings should be given to targets of investigations; and when and how grand jurors should be instructed on the law.

All of the recommended best practices are currently employed by one or more prosecutors’ offices, demonstrating that the state’s prosecutors were already taking the initiative in exploring practices to ensure that grand jurors are adequately instructed and that the integrity of grand jury presentments is not impaired.  The recommended best practices were selected because they assist grand juries in performing their dual functions of determining probable cause to charge someone with a crime and protecting persons from unfounded criminal prosecution.  All of the recommendations are fully consistent with existing SJC and Appeals Court law.

Creation of the committee and its work

The committee arose from the SJC’s opinion in Commonwealth v. Grassie, 476 Mass. 202 (2017), in which the Court stated that it would convene a committee on grand jury practices before considering an extension to adults of the rule adopted for juveniles in Commonwealth v. Walczak, 463 Mass. 808 (2012).  In Walczak, the Court required prosecutors to provide certain legal instructions to grand jurors when prosecutors seek to indict a juvenile for murder and substantial evidence of mitigating circumstances or defenses exists.

Although the committee arose out of one court decision, the SJC did not limit the scope of the committee’s fact-gathering and asked the committee to recommend best practices in any area of grand jury practice it wished to consider.  This broad mandate raised concerns among many of the Commonwealth’s elected prosecutors.

When the committee sought public comment on a draft of its proposed best practices in March, a considerable number of district attorneys criticized the proposals as an unconstitutional intrusion by the judiciary into the exclusive role of the executive branch in making charging decisions.  A few district attorneys also saw the proposed best practices as an attempt to impose on them “one size fits all” practices similar to federal grand jury requirements.  In addition to raising these broad concerns, the district attorneys offered detailed critiques of specific proposals.  The committee also received comments from the Committee for Public Counsel Services, the Boston Bar Association, and several individuals.   The committee carefully reviewed all and adopted many of these comments, resulting in an improved set of best practices and commentary which were submitted to the SJC in June.

The committee also considered the broader concerns raised by district attorneys but ultimately concluded that recommending best practices on the presentation of evidence and instructions to grand juries fell squarely within the SJC’s charge to the committee.  Moreover, given the judiciary’s role in ensuring the integrity of grand jury proceedings, the committee believed that recommending best practices from existing prosecutors’ office practices did not violate the separation of powers, intrude upon prosecutorial discretion in charging decisions, or impose a “federalized” one-size-fits-all approach to grand jury practice.

Personal Reflections

Having served on criminal law reform committees for over three decades, I was deeply gratified to see experienced prosecutors and defense attorneys (and the rest of us) forcefully express opposing views, but carefully listen to each other and put aside parochial concerns to reach principled compromise.  There is a nationwide trend toward prosecutor best practices, but the practices typically cover areas other than the grand jury, and non-prosecutors are rarely involved in the process.  Because our committee had representation among a range of participants in the criminal justice process, the practices that we unanimously viewed as exemplary should have added credibility.

Our committee had no authority to require the implementation of best practices, and the Final Report explicitly states that it is “not intended to give substantive or procedural rights to people accused or convicted of crimes or to serve as the basis for motions to dismiss indictments.”  Over time, courts may look to the best practices we identified to render legal decisions, but that was not the purpose of our work.  I believe that I speak for the entire committee in expressing the hope that the Commonwealth’s prosecutors on their own initiative will recognize what is exemplary among practices already in use, broadly adopt those practices, and continue the process of developing new best practices in the future.

Robert L. Ullmann has been an Associate Justice of the Massachusetts Superior Court since 2013.  He was chair of the Supreme Judicial Court Committee on Grand Jury Proceedings.

In addition to the author, the other committee members were Hon. Peter W. Agnes, Jr., Appeals Court; Janice Bassil, Esq; Berkshire District Attorney Paul J. Caccaviello ; Hon. Judd J. Carhart, Appeals Court (retired); Assistant Attorney General David E. Clayton; Middlesex Assistant District Attorney Kevin J. Curtin; Deputy Chief Counsel Randy Gioia, Esq., Committee for Public Counsel Services; Hon. Bertha Josephson, Superior Court (retired); Clinical Professor Diane S. Juliar, Suffolk University Law School; Bristol District Attorney Mary E. Lee, Kevin M. Mitchell, Esq.; and Suffolk Assistant District Attorney Donna Jalbert Patalano (prior to her departure from the district attorney’s office.)  Maureen McGee, Esq. was counsel to the committee.


Major Changes to Superior Court Motion Practice

Fuller

by Victoria Fuller

Practice Tips

Superior Court Rule 9A was amended effective November 1, 2018.  Although the Rule has been amended several times in the last few years, the most recent changes are big.  Really big.  Everything from cross-motions to summary judgment to basic formatting have been revised.  Superior Court practitioners who fail to familiarize themselves with these changes risk having motions returned or denied.

Summary Judgment Packages Get Leaner

The biggest change to Rule 9A affects summary judgment procedure.  These changes are geared to slimming down filings and simplifying the issues before the Court.  First, the Statement of Facts, as served, cannot exceed 20 pages, and cannot include several types of facts:

  1. Immaterial Background facts;
  2. Quotations from, or characterizations of, transactional documents (“except if admissible through percipient witnesses”); and
  3. Quotations from statutes, regulations or rules.

Parties may submit these types of material, without argument or commentary, in an addendum to the party’s memorandum.

Second, the rule limits the permissible scope of responses to the Statement of Facts by prohibiting some common responses that have complicated the Court’s ability to determine what facts are actually disputed in good faith.  Opposing parties may state whether a fact is disputed, and if so, cite supporting record evidence.  They may not, however:

  1. Deny a fact, or state that a fact is not supported by the cited materials, without a good faith basis;
  2. Comment on whether the fact is relevant or material. The opposing party may, however, state that the fact is admitted solely for purposes of summary judgment;
  3. Assert additional facts; or
  4. Include legal argument or advocacy concerning the sufficiency, relevance or materiality of the fact.

Third, opposing parties are no longer permitted to serve Statements of Additional Facts, except in support of a cross-motion for summary judgment.  They may, however, include additional facts in their opposition with supporting record citations.  The rule also directs the parties to cite both the joint appendix exhibit number and the corresponding paragraph in the Statement of Facts in their memoranda.

In addition, three types of summary judgment motions may now be denied by the Court on the papers:

  1. Multiple motions made by the same party, or a motion filed by a party sharing similar interests with a party who has already moved for summary judgment, which raises issues previously resolved by the Court;
  2. Motions for partial summary judgment that will save little to no trial time, will not simplify trial, or will not promote resolution of the case; and
  3. Motions where a genuine dispute of material fact is obvious.

Finally, the rule has updated sanctions for non-compliance with the summary judgment provisions.  The court may not consider the motion or opposition, may return the submission to counsel with instructions for re-filing, or may impose other sanctions for flagrant violations.

Cross-Motions Are Integrated Into a Single Filing Package

The rule has now filled a procedural gap affecting cross-motions.  For example, if a party serves a motion to compel, and the opposing party serves an opposition and a cross-motion for protective order: Under the old rule, the cross-motion was not required to be included in the same 9A package.  As a consequence, the motion to compel could be filed and heard before briefing on the cross motion was complete.

Under the new rule, opposing parties serve cross-motions with their opposition to the original motion.  The original moving party then serves the reply (if any) and opposition to the cross-motion.  The original moving party files both motions and oppositions as part of the same 9A package.

Cross-motions for summary judgment generally follow the same process, but in addition, a Consolidated Statement of Facts is prepared.

Parties Must Now Confer on Dispositive Motions

The new Rules 9A and 9C extend meet and confer obligations to dispositive motions (with limited exceptions).  Motions lacking a 9C certificate under the new rule, as under the old, will be denied without prejudice.

New Procedure for Requesting Leave

Parties must still seek leave to file additional briefing and pages, which will be granted only in “exceptional circumstances.”

Rule 9A(a)(6) also sets forth a new procedure for requesting leave.  Letter requests are gone.  Now, requests must be captioned as a pleading, not exceed one page, state the grounds for the relief sought, and include a certificate of service.  The request is sent to the session clerk, captioned “ATTN: Session Judge.”  If the Court grants a request for additional pages, this will apply to the opposing party’s memorandum as well, unless otherwise ordered. The permitted pleading must state the date on which leave was allowed.  Note that a request for leave does not extend the date for filing the Rule 9A package, unless permitted by Court or by agreement of the parties.

Formatting Changes

Under the old rule, papers had to be typed in “no less than 12-point type.”  Now, papers must be 12-point type – no more, no less.  In addition, quotes and footnotes must also be 12-point type. An addendum that sets forth “verbatim and without argument, pertinent excerpts from key documents, statutes, regulations or the like” need not be included in counting permitted pages.

Finally, email addresses must be included in the signature block or the attorney must certify that he or she lacks one.

Service on Non-Parties Now Required In Limited Circumstances

Unless excused by court order, or where ex parte relief is authorized by statute or rule, the new rule requires service on non-parties under three circumstances:

  1. the motion seeks to add the non-party as a party to the case;
  2. the motion seeks an order or other relief against the non-party; or
  3. the motion addresses issues which affect the personal information or other interests of the non-party.

Electronic Service Now Permitted

Many practitioners will rejoice that email service is now permitted.  The parties must agree in writing, and parties must include “served via email” on their filings for the clerk to accept scanned signatures.  That said, parties filing papers signed under the penalties of perjury, such as affidavits, and all required 9A certifications, must bear original signatures.

Motions Exempt from Rule 9A

Finally, the new Rule 9A adds two categories of motions as exempt: motions governed by e-filing rules, and review of decisions of administrative agencies.

The new rule also seeks to prevent parties from trying to skirt Rule 9A by declaring a motion an “emergency.”  Now, parties filing emergency motions must certify that they have made a good faith effort to confer with all parties, and must state whether any party assents to or opposes the motion.

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Though extensive, these changes should streamline and improve Superior Court motion practice.  Prudent practitioners will ensure that they, and other attorneys in their firm or organization, familiarize themselves, and comply, with the new rule.

R. Victoria Fuller is an attorney in the Boston office of White and Williams LLP.  Her practice focuses on insurance law, employment law, and general commercial litigation.


Massachusetts High Court Rules Judges Can Require Sobriety as Part of Probation in Commonwealth v. Eldred

CoakleyHutchinson

by Martha Coakley and Rachel Hutchinson

Case Focus

On July 16, 2018, the Massachusetts Supreme Judicial Court unanimously ruled in Commonwealth v. Eldred, 480 Mass. 90 (2018) that judges can require individuals with substance use disorders to remain drug-free as a condition of probation.  Although the Court stressed that judges should consider the challenges of addiction, the Court nevertheless found that judges must also “have the authority to detain a defendant” who has violated probation by using drugs.  Id. at 99.  It appears that the SJC is the first state supreme court to reach and decide this issue.

I. The Addiction Debate

Remaining drug-free is an almost universal requirement of probation.  Many courts, including specialty courts such as drug courts that take a public health approach to substance abuse, require offenders to stay clean, and respond to relapses with sanctions ranging from warnings to jail time.  But as the opioid crisis has swept the nation, many have begun to question the central role that courts play in battles with substance abuse.

Eldred cut to the heart of this growing debate.  The defendant, Julie Eldred, argued that requiring her to remain drug-free as a condition of probation violated her constitutional rights.  According to Eldred, addiction is a chronic brain disease that interferes with one’s ability to abstain from drugs. Eldred argued that punishing addicts like herself for a relapse punishes them for something over which they have no control and negates willfulness.  The prosecution disagreed, arguing that addiction is a condition that ranges in intensity and is responsive to penalties and rewards.  According to the prosecution, sanctions like jail time are an important tool that judges can use to encourage recovery and promote public safety.

Many of the Eldred amici weighed in on the science of addiction, focusing on the degree of control addicted individuals have over their drug use.  For instance, the Massachusetts Medical Society argued that relapse was a symptom of a disease that must be treated, not punished.  Other amici, however, pointed out that the scientific community has not yet reached consensus about whether addiction leaves someone powerless over their drug use.  The National Association of Drug Court Professionals noted that supervision and drug testing combined with graduated sanctions helps keep individuals in recovery, and cautioned the SJC against allowing “any particular theory of addiction to influence its decision.”

II. The Eldred Decision

Eldred arose out of the 10-day incarceration of Julie Eldred after she failed a court-ordered drug test.  Eldred, who had suffered from substance use disorder since age 15, had originally been convicted of larceny for stealing jewelry to support her addiction.  Eldred’s probation required her to enroll in outpatient treatment, submit to random drug screenings, and remain drug-free.  Although Eldred originally complied with her probation, enrolling in a program and starting on a course of Suboxone, she relapsed shortly thereafter and tested positive for fentanyl, a powerful opioid.  Because no inpatient drug treatment facilities had open spots, the judge overseeing Eldred’s detention hearing ordered her held in custody until one became available 10 days later.  Eldred, 480 Mass. at 93.

At the full hearing on her probation violation, Eldred argued that this 10-day detention was unlawful because her substance use disorder “rendered her incapable of remaining drug free.”  Id. at 92.  The judge disagreed, finding that Eldred had violated her probation, but nevertheless granted Eldred’s motion to report the question regarding the lawfulness of the drug-free condition to the SJC.  The SJC found that the question was improperly reported, but agreed to consider it nonetheless because it presented “issues of significant magnitude.”  Id. at 94.

Although the parties and amici focused their arguments on the addiction debate, the SJC declined to weigh in on the science.  Instead, the Eldred decision focused on a judge’s role in setting probation conditions.  Based on longstanding precedent, the SJC decided that judges may continue to require individuals to remain drug-free while on probation, and may detain individuals who violate that condition until their probation hearing.

The SJC framed the reported question in three parts.  First, when someone who is addicted to drugs commits a crime, may a judge require her to remain drug-free as a condition of probation?  Second, if an individual violates the drug-free condition, can she be subject to probation revocation proceedings?  Third, may she be held in custody while awaiting admission to an inpatient treatment facility?  Id. at 94.

The SJC answered all three questions in the affirmative.  While the Court noted that judges who deal with those who suffer from substance use disorder should act with “flexibility, sensitivity, and compassion,” the Court ruled that judges “must have the authority to detain a defendant facing a probation violation based on illicit drug use.”  Id. at 95, 99.  The Court disagreed with Eldred that the judge’s decision to detain her constituted a punishment for her relapse.  Rather, the Court likened it to a bail decision, since no final determination on whether Eldred had violated her probation had been made.  The Court noted that the judge simply sought to detain Eldred until an inpatient facility became available.  It also held that “although the appellate record before the court was inadequate to determine whether SUD affects the brain in such a way that certain individuals cannot control their drug use,” the trial court did not abuse its discretion in concluding that there was a wilful violation of the defendant’s probation.  Id. at 104.

Finally, although the SJC agreed with Eldred that substance use disorder itself cannot be criminalized, it pointed out that “relapse is dangerous,” both for addicted individuals and the community in which they live.  Id. at 99. The Court noted that judges, who are on the front lines of the opioid epidemic, “face unresolved and constantly changing societal issues with little notice and, in many situations, without the benefit of precedential guidance.”  Id.  The Court characterized these decisions as “especially unpalatable” when an offender is addicted to drugs.  Id.  While the Court, pointing to its own Standards on Substance Abuse, acknowledged that relapse is an accepted part of recovery, the Court stressed that relapse was dangerous nonetheless, and ruled that judges must continue to have the authority to detain defendants after a relapse that violates their probationary terms.

III. Eldred’s Implications

Although Eldred maintained the status quo for judges dealing with addicted offenders, it is unlikely to be the final word on the subject.  As the opioid epidemic grows, the way we view addition is changing.  Even the Attorney General’s Office acknowledged in its briefing that “exclusively punitive responses to addiction … do not make us safer.”  While the criminal justice system may be on the front lines of the crisis for now, that role may change as other jurisdictions, legislatures, agencies, and disciplines grapple with the same questions faced in Eldred.

Martha Coakley, the first female Attorney General of Massachusetts, served from 2007-2015. Her prior experience includes District Attorney of Middlesex County; Special Attorney, Boston Organized Crime Strike Force; and Resident Fellow, Harvard Institute of Politics, John F. Kennedy School of Government. Martha has been a national leader in consumer protection, and civil rights, among other areas.  As an active member and then President of the Women’s Bar Association, Martha supported and participated in the §12S petition panel for young women needing counsel in Court.  NAAG recognized her outstanding accomplishments in 2014 when she received the Kelley-Wyman Award, given annual to the AG who has done the most to achieve NAAG objectives, Martha graduated from Williams College and the Boston University School of Law. She is a Partner in Foley Hoag’s Administrative Department where she focuses on government and internal investigations, litigation, data privacy and security, and healthcare.

Rachel Hutchinson is an associate in the firm’s Administrative Law and Litigation departments, where she represents individual and corporate clients in a wide range of regulatory matters and civil disputes. Her practice focuses on regulatory compliance, government investigations, and white collar crime. Rachel also maintains a pro bono practice focused on civil rights and LGBT issues.