A Clear View of a Narrower Path: Examining the Baker Pardon Guidelines

cosmas_willby William G. Cosmas

Practice Tips

Two years ago in this journal, I examined the process of obtaining a pardon in the Commonwealth of Massachusetts from the perspective of having represented one of the first successful petitioners for such relief since 2002. This article examines the Executive Clemency Guidelines issued by Governor Charles D. Baker (the “Baker Guidelines”) as compared to those that his predecessor, Governor Deval L. Patrick, issued in January 2014 (the “Patrick Guidelines”).

In Massachusetts, a governor’s Executive Clemency Guidelines (the “Guidelines”) largely govern the process from petition to clemency.  Statutes and regulations set forth the procedure through which the Parole Board, acting as the Advisory Board of Pardons (the “Board”), reviews, evaluates, and considers petitions for clemency. The Guidelines set forth the qualitative framework for that analysis, through an expression of the governor’s philosophy concerning clemency and the criteria that he or she will use to determine whether a petitioner merits recommendation to the Governor’s Council (the “Council”) for relief. On the day after his inauguration, Governor Baker rescinded the Patrick Guidelines, under which Governor Patrick had issued four pardons at the close of his term, halting administrative review of existing petitions until he could draft and issue his own Guidelines. Baker Rescinds Ex-Gov. Patrick’s Clemency Guidelines, Associated Press, Jan. 16, 2015. Governor Baker described his decision as “standard operating procedure,” because with a new governor comes a new understanding of the nature and contours of the governor’s pardon power. See Gov. Baker To Submit New Pardon Guidelines In Coming Weeks, Associated Press, Jan. 23, 2015. The Baker Guidelines were issued in December 2015.

An Apparent Attempt to Streamline

While the Baker Guidelines offer streamlined, procedural clarity and hew closely to relevant law, the Patrick Guidelines contemplated a holistic review of each petitioner, “intend[ing] to inform” the Board—the “public officials who are most able to make informed decisions on the persons seeking relief” —in its preliminary analysis of each petition. See Patrick Guidelines (“PG”) at 1-2. In contrast, the Baker Guidelines emphasize his prerogative to “direct” the Board’s analysis, in language that agrees with the Board’s recently-revised regulations (see, e.g., 120 CMR 900.01(2) (2017) (“The [Board] shall be directed by the Governor’s Executive Clemency Guidelines in its consideration of petitions for executive clemency.”) See Baker Guidelines (“BG”) at 1-2. Such emphasis also reflects the governor’s constitutional power, under Article 73 of the Amendments to the Massachusetts Constitution, to determine which clemency petitions merit submission to the Council for approval. See In re Op. of the Justices, 210 Mass. 609, 611 (1912); see also M.G.L. ch. 127 § 152.

Both sets of Guidelines reserve that power notwithstanding their own terms, but the Baker Guidelines explicitly acknowledge that they do not bind the Council, whose “concurrent action” on a petition is required to issue a pardon. BG at 2; see In re Op. of the Justices, 210 Mass. at 611. This nod to the Council’s constitutional independence, see Pineo v. Exec. Council, 412 Mass. 31, 36-37 (1992), an esoteric point of law easily lost on those without experience on Beacon Hill, may prove crucial to future petitioners who reach the final stage of review. Without this provision, a petitioner (and his/her counsel) might assume that the same Guidelines that governed the lengthy process to that point also set the rules for Council’s essential consideration of a petition. In truth, there are no rules for the Council’s analysis or for any related hearing other than those, if any, promulgated by the Council for the occasion.

Finally, the Baker Guidelines offer added precision by incorporating relevant statutory and regulatory provisions. For example, both Guidelines indicate that, for certain offenses, a pardon “rarely” would include restoration of a petitioner’s firearms rights. Unlike the Patrick Guidelines, however, the Baker Guidelines specifically incorporate the offenses included in M.G.L. ch. 140 § 121’s definition of “violent crime”: “any crime punishable by imprisonment for a term exceeding one year… that: (i) has as an element the use, attempted use or threatened use of physical force or a deadly weapon against the person of another; (ii) is burglary, extortion, arson, or kidnapping; (iii) involves the use of explosives; or (iv) otherwise involves conduct that presents a serious risk of injury to another,” BG at 4. Although the Supreme Judicial Court struck down part (iv) of the statute as unconstitutionally vague in May 2016, Commonwealth v. Beal, 474 Mass. 341, 349-51 (2016), the precision that the rest of § 121 provides may help petitioners set more accurate expectations for the process.

An Embrace of Retributive Justice

Both Guidelines establish similar basic threshold considerations for pardon relief, but the Baker Guidelines imbue those considerations with a retributive theory of justice. Perhaps drawing the line for the Commonwealth’s retribution at the petitioner’s release from state supervision, the Patrick Guidelines first considered whether “[t]he grant of a pardon is in the interests of justice,” considering “the nature of the underlying offense(s), the impact of the crime on any victim(s) and society as a whole, the petitioner’s role in the underlying offense, and the fundamental fairness and equity of granting a pardon to the petitioner.” PG at 3. By contrast, the Baker Guidelines identify the “nature and circumstances of the offense” as the first “paramount consideration,” paying particular attention “to the impact on the victim or victims and the impact of the crime on society as a whole.” BG at 3. The greater the severity of the petitioner’s offense, the more time “that should have elapsed in order to minimize any impact clemency may have on respect for the law.” Id. at 2.

The second threshold question under the Patrick Guidelines focused on a petitioner’s rehabilitation, considering whether “the petitioner has been a law-abiding citizen and presents no risk for re-offense,” to determine whether a pardon would be consistent with maintaining public safety. PG at 3. That analysis focused on the petitioner’s “good citizenship” during a period of time following confinement or probation based on whether the petitioner’s offense was a felony or misdemeanor. PG at 3. The Baker Guidelines’ analogous “paramount consideration”—“the character and behavior, particularly post-offense behavior, of the petitioner”—presents a striking shift from the Patrick Guidelines. See BG at 3. A petitioner must have “clearly demonstrated acceptance of responsibility for the offense for which the petitioner is seeking clemency” —and appealing or challenging the underlying conviction or sentence is “[g]enerally… inconsistent with acceptance of responsibility.” Id. In other words, a petitioner who exercised his legal right to appeal or challenge a conviction twenty-five years ago, no matter the justification, unwittingly disadvantaged his future clemency petition to Governor Baker in the process. The Baker Guidelines also essentially require that a petitioner have “made full restitution” to victims economically injured by the petitioner’s crime(s), giving “stronger consideration to petitioners who have made restitution in a prompt manner.” Id. A petitioner’s public service will also lead to “stronger consideration,” whether that public service consists of “substantial assistance to law enforcement in the investigation or prosecution of other more culpable offenders” or “service in the military or other public service, or . . . charitable work.” Id.

Narrowed Opportunity for Petitioners

Both sets of guidelines provide additional factors to be taken into account in determining a petitioner’s entitlement to relief, such as requiring a period of “good citizenship” since release from government supervision, but the Baker Guidelines take a narrower focus, limiting opportunities for petitioners. The Patrick Guidelines considered “either (1) a compelling need for a pardon; or (2) extraordinary contributions to society that would justify restoration of his/her reputation as a concluding step of rehabilitation.” PG at 2. Similarly, the Baker Guidelines require petitioners to “demonstrate both good citizenship and a verified, compelling need,” but do not expressly consider the “extraordinary contributions to society” that might have tipped the balance to clemency under the Patrick Guidelines. BG at 3. Instead, the Baker Guidelines require disclosure and investigation of “whether the petitioner has been the subject of any civil lawsuit, including any restraining order, during the claimed period of good citizenship,” thus imposing a greater burden than the Patrick Guidelines, which required consideration only of restraining orders or civil contempt orders. See BG at 4; PG at 4.

Conclusion

On the whole, the Baker Guidelines provide additional clarity—but commensurately narrower paths to clemency—than those they replaced. It remains to be seen whether and in what circumstances Governor Baker will exercise his constitutional power to grant the “extraordinary remedy” of a pardon—and whether his Guidelines will impact his ability to do so.

William G. Cosmas, Jr., is an associate at Fitch Law Partners LLP, where he works primarily in the areas of business litigation, white-collar criminal defense, government investigations, real estate disputes, and complex civil litigation.  In 2014, he represented a successful petitioner for clemency in Massachusetts. 


Cardno Chemrisk v. Foytlin: Supreme Judicial Court Holds that Anti-SLAPP Law Protects Opinion Writing

pyle_jeffby Jeffrey J. Pyle

Case Focus

Anyone who has litigated a special motion to dismiss under the Massachusetts anti-SLAPP law knows they are typically won or lost on the question of whether the suit is based on “petitioning” activity. Passed in 1991 to protect citizens from “strategic lawsuits against public participation,” the anti-SLAPP law, G.L. c. 231, § 59H, provides that if a plaintiff brings a lawsuit based on the defendant’s exercise of its constitutional right to petition, the trial court must dismiss the action—and award attorneys’ fees—unless the plaintiff proves that the defendant’s petitioning was devoid of legal or factual merit and that the plaintiff suffered damages. Proof that petitioning activity is “devoid” of merit is difficult for a plaintiff to assemble at the pleadings stage, so the fight usually centers on the first part of the analysis: whether the activity in question was in fact “petitioning.”

The Supreme Judicial Court (“SJC”) has repeatedly held that the anti-SLAPP statute applies only to parties who seek redress of grievances of their own or otherwise petition on their own behalf, not to those who air the grievances of others.  However, in the recent case of Cardno Chemrisk v. Foytlin, 476 Mass. 479 (2017), the Court softened that rule, extending protection to opinion writing that addresses subjects of broad political and social concern.

The defendants in the case, Cherri Foytlin and Karen Savage, are environmental activists concerned about the effects of contamination from the Deepwater Horizon oil rig spill on the Gulf Coast and on cleanup workers. On October 13, 2013, they published an article in the Huffington Post about ongoing federal litigation against British Petroleum (“BP”) in Louisiana, in which BP asserted that only a minimal amount of oil escaped as a result of the explosion of the rig. In their article, Foytlin and Savage state that BP “does not exactly have a reputation for coming clean on the facts surrounding the disaster,” and they held up as an example a report written for BP by Cardno ChemRisk, LLC (“ChemRisk”), a scientific consulting firm, which concluded that cleanup workers had not been exposed to harmful levels of certain chemicals. Foytlin and Savage disputed ChemRisk’s independence and stated that it had “a long, and on at least one occasion fraudulent, history of defending big polluters, using questionable ethics to help their clients avoid legal responsibility for their actions.” ChemRisk sued the pair for libel.

In their anti-SLAPP motion to dismiss ChemRisk’s suit, Foytlin and Savage argued that their article was written in connection with pending court proceedings, and therefore met the statute’s definition of “a party’s exercise of its right of petition.” The Superior Court acknowledged that the defendants were activists and that they “wrote and posted the article as part of their work to influence ongoing governmental proceedings and court cases,” yet denied their motion on the ground that the article addressed the grievances of only the cleanup workers, not those of Foytlin and Savage themselves. The Superior Court relied on a line of cases denying protection to those not seeking redress of “grievance[s] of [one’s] own”—in  particular, Fustolo v. Hollander, 455 Mass. 861 (2010), which upheld the denial of an anti-SLAPP motion by a journalist who had written objective news stories about a controversial development project because the stories were not written to advocate her own point of view.

On direct appellate review in Cardno Chemrisk, the SJC reversed, declining to extend the reasoning in Fustolo to the case against Foytlin and Savage. It would take “a constrained view” of the First Amendment petitioning right, the Court held, to deny protection to environmental activists sued for publishing an opinionated news article about environmental devastation against the backdrop of pending court proceedings. Citing Town of Hanover v. New England Reg’l Council of Carpenters, 467 Mass. 587, 594 (2014), the Court held that the anti-SLAPP law, “like the constitutional right it safeguards, protects those looking to ‘advance[e] causes in which they believe,’” including the cause of protecting the environment. The Court distinguished Fustolo by explaining that the journalist there had been “employed to write, and did write, impartial news articles, despite having personal views on the same subjects,” and her “objectivity was pivotal to the decision insofar as the reporter was not exercising her own constitutional right to petition when authoring the challenged articles.” That was not the case with Foytlin and Savage, whose personal views were reflected clearly in their article.

The Cardno Chemrisk decision is welcome news for writers of blogs, op-eds and letters to the editor about issues before government bodies. Such publications are now protected if they espouse the author’s “personal views,” even if they are not intended to protect the writer’s own “private rights.” However, the SJC did not articulate a test to determine whether writing is opinionated as opposed to “impartial” and “objective” news reporting—concepts that may have less of an agreed-upon meaning now than at any time in modern history. One can only guess, for example, how the SJC would rule in a case about a muckraking investigative article that presents hard facts in a manner obviously intended to make a case for government reform, but that does so without overtly stating that the author is presenting “personal views.”

The Cardno Chemrisk decision also raises questions about the scope of protection afforded to professionals, including lawyers and experts, who assist the petitioning activities of others. In an earlier decision, Kobrin v. Gastfriend, 443 Mass. 327 (2005), the SJC denied anti-SLAPP protection to a physician expert testifying for the government in a regulatory proceeding because he was not petitioning on his own behalf. The Cardno Chemrisk court distinguished Kobrin on the ground that the physician was acting as a mere “vendor of services” who had a “merely contractual” relationship to the issues in the case—unlike Foytlin and Savage, who were advancing a cause in which they believed. Yet the Court previously indicated that attorneys who represent parties petitioning the government must be protected by the anti-SLAPP law—despite their status as mere “vendor[s] of services”—lest their exclusion cause a “chilling effect” on petitioning. Cadle Co. v. Schlichtmann, 448 Mass. 242, 252 (2007). Clarification of this issue, and of the scope of petitioning rights more generally, will have to await future cases.

Jeffrey J. Pyle is a partner in the Media and First Amendment Law Practice Group at Prince Lobel Tye in Boston, Massachusetts. Along with Thomas Sutcliffe of Prince Lobel and Sarah Wunsch of the American Civil Liberties Union of Massachusetts (ACLUM), Jeff submitted an amicus brief in Cardno Chemrisk v. Foytlin on ACLUM’s behalf.  


Commonwealth v. Lawson and Commonwealth v. Griffin: Recent Changes in Criminal Responsibility and the Presumption of Sanity

lyons_crystalby Crystal L. Lyons

Case Focus

This past fall, without much portent, the Supreme Judicial Court (“SJC”) created a seismic shift in the law of criminal responsibility when it eliminated the “presumption of sanity” in Commonwealth v. Lawson, 475 Mass. 806 (2016). As a result, the presumption of sanity will no longer carry the Commonwealth’s burden of proof and may no longer be considered as evidence of sanity. In fact, juries will no longer even receive an instruction on the presumption of sanity. Id. at 807, 814-815 & n.8. This article addresses Lawson’s explicit guidance, analyzes its application just a week later in Commonwealth v. Griffin, 475 Mass. 848 (2016), and anticipates the questions that both cases implicitly left open.

Before Lawson, when a question of the defendant’s criminal responsibility was raised, courts were required to instruct juries that they may consider that, because a great majority of persons are sane, there was a resulting likelihood that the defendant was sane. Lawson, 475 Mass. at 815 & n. 8. In Lawson, however, the SJC announced that rather than a true legal presumption, the “presumption” of sanity is instead “merely an expression” of the “commonsense understanding” that a defendant is probably sane because most people are sane.

In Lawson, the SJC recast a defendant’s lack of criminal responsibility as an affirmative defense, akin to self-defense. As an affirmative defense, the defendant must first proffer “some evidence” that, “viewed in the light most favorable to the defendant, would permit a reasonable finder of fact to have a reasonable doubt whether the defendant was criminally responsible at the time of the offense.” Id. at 807, 811. After doing so, “the Commonwealth bears the burden of proving beyond a reasonable doubt that the defendant was criminally responsible.” Id.

Although the SJC appeared to anchor its decision in established precedent, Lawson breaks new ground and will have significant effects in the future. For example, Lawson cited Commonwealth v. Keita, 429 Mass. 843 (1999), for the proposition that the Commonwealth already bore the burden of proving that the defendant was criminally responsible. Previously, however, the Commonwealth’s burden was usually a mere formality where the presumption of sanity alone was sufficient to overcome a challenge. See Lawson, 475 Mass. at 813; cf. Commonwealth v. Vives, 447 Mass. 537, 540 (2006) (characterizing mental illness as a hindrance to the defendant’s ability to form a specific intent rather than as an affirmative defense). Now, however, to prove criminal responsibility, the Commonwealth must establish either:

1)       That at the time of the alleged crime, the defendant did not suffer from a mental disease or defect; or

2)       That if the defendant did suffer from a mental disease or defect, he nonetheless retained the substantial capacity to appreciate the wrongfulness or criminality of his conduct and to conform his conduct to the requirements of the law.

Griffin, 475 Mass. at 856 (citing Model Jury Instructions on Homicide 10 (2013)).

The Commonwealth can establish the defendant’s mental capacity at the time of the offense through either circumstantial or medical evidence. Lawson, 475 Mass. at 815-817. The types of circumstantial evidence that can support the inference of sanity are already well-known from prior cases. They include: the circumstances of the offense; efforts to plan the offense; a rational motive to commit the offense; rational decisions made proximate to the offense; efforts to avoid capture; attempts to conceal the offense or the defendant’s role in the offense; words and conduct before, during, and after the offense; and evidence of malingering. Id. “Where, however, this [circumstantial] evidence provides only weak support for a finding of criminal responsibility,” the Court made clear that “the Commonwealth proceeds at its peril if it chooses to offer no expert to rebut a defense expert’s opinion of lack of criminal responsibility.” Lawson, 475 Mass. at 817. Medical evidence is typically presented through expert testimony.

Even though criminal responsibility is not an element of any offense, because the Commonwealth bears the burden of presenting sufficient evidence for a rational fact-finder to find criminal responsibility, a defendant may now seek a required finding of not guilty on the ground that the Commonwealth presented insufficient proof. Id. at 812. A motion for a required finding on that basis can be raised only at the close of all evidence, however, because practically speaking, evidence of such a defense is typically first offered during the defense’s case, after which the Commonwealth is permitted a full opportunity to rebut any such defense. Id. at 816-817. The circumstantial evidence of sanity described above is generally sufficient to overcome a motion for a required finding except when a defense expert’s view of the evidence shows the Commonwealth’s argument for sanity to be “incredible or conclusively incorrect.” Id. at 817-818.

Just six days after deciding Lawson, the SJC applied its new framework in Griffin. Although the Court affirmed the defendant’s first degree murder conviction for killing his young daughter, in analyzing whether the Commonwealth had met its burden of proving criminal responsibility, the Court first highlighted the Commonwealth’s lack of medical expert testimony. Griffin, 475 Mass. at 855-856. This is noteworthy not only because the defendant had not presented an expert (though he had secured funds to hire one) but also because the circumstantial proof of sanity appeared overwhelming. The Commonwealth’s evidence in Griffin mapped perfectly onto the categories identified in Lawson. It showed that the defendant: acted normally in the days leading up to the killing; before the crime, prepared a last will and testament and left a note at his home apologizing for his “sins” and asking for God’s mercy; had a strong motive for the killing, which he had discussed with others; carefully planned the killing, including assembling all the necessary materials, choosing to walk to minimize the sound of his approach, turning off the electricity to the house and taking off his shoes upon his arrival to reduce the chance of being discovered, and cutting telephone lines to eliminate calls for help; and methodically cleaned the basement crime scene and repacked his materials after the murder. Id. at 856-857. The defendant’s only evidence of lack of criminal responsibility consisted of self-serving pre-trial statements in which he had claimed that God told him to commit the murder (even though there was no indication he was deeply religious or possessed religious materials) and had described the severity of his mental illness (descriptions which were proven by evidence at trial to be overstated). Id. at 857. By highlighting the Commonwealth’s absence of a prosecution expert in these circumstances, Griffin raises the question whether the prosecution should consider using an expert even in the cases that seem to least warrant one.

The Court clarified that a prosecutor may properly address in closing argument the inferences to be drawn from circumstantial evidence and inconsistencies in the defendant’s evidence as that evidence bears on criminal responsibility; in so doing, he or she “does not testify as an unqualified expert witness.” Id. at 860. The Court also clarified that Lawson’s elimination of the instruction on the presumption of sanity was not merely a prospective change. The Court concluded that the instruction had been erroneously provided in Griffin, but that it had not created a substantial likelihood of a miscarriage of justice where “the trial judge strongly and specifically instructed that the burden is on the Commonwealth to the prove criminal responsibility beyond a reasonable doubt” and where “substantial evidence” supported the jury’s finding of criminal responsibility. Id. at 862-863.

Although Lawson’s and Griffin’s affirmation of the convictions might suggest it will be business-as-usual in criminal responsibility cases despite the Court’s shift, the cases raise several important questions. First, what quantum of proof will be necessary for a defendant to sufficiently raise “some evidence” of a criminal responsibility defense, particularly if the defendant presents no direct medical evidence or testimony (whether because expert testimony cannot be secured or perhaps because no previous treatment or diagnosis exists) and relies solely on arguably self-serving statements to sustain the defendant’s burden of production? Second, under what circumstances may a defense expert’s testimony show the Commonwealth’s evidence to be “incredible or conclusively incorrect” and thereby insufficient to overcome a motion for a required finding of not guilty? One can imagine a situation in which an expert testifies that the inferences argued by the Commonwealth are invalid given the defendant’s diagnosis and that the circumstantial evidence presents normal or expected symptoms of the claimed mental illness. Finally, what differences may exist between sufficient evidence to sustain the Commonwealth’s burden of proof of criminal responsibility under the familiar Latimore standard—viewing all evidence and resolving all inferences in favor of the Commonwealth—and what may be necessary to establish “substantial evidence” of criminal responsibility in pre-Lawson cases where the presumption of sanity instruction has already been provided?

The Commonwealth will need to evaluate carefully whether to call an expert in any case that raises a potential criminal responsibility defense. Despite the Court’s assurances in both cases that “the Commonwealth need not offer expert testimony in every case,” Lawson, 475 Mass. at 807; Griffin, 475 Mass. at 855-856, the SJC highlighted in Griffin the lack of an expert for the Commonwealth. That the Court would do so in a case with overwhelming circumstantial evidence of sanity—and no defense expert testifying to the contrary—suggests that the cautious approach for the Commonwealth to avoid the possibility of reversal will be to call a prosecution expert nonetheless. Lawson, 475 Mass. at 817.

Crystal L. Lyons is an Assistant District Attorney in the Appeals & Training Bureau of the Middlesex District Attorney’s Office, where she also serves as Captain of the Mental Health Team.  She is a member of the BBJ Board of Editors. This article represents the opinions and legal conclusions of its author and not necessarily those of the Middlesex District Attorney’s Office.


“We Bear a Responsibility to be Vigilant”

starkey_carolby Carol A. Starkey

President’s Page

I have always seen the practice of law as one of the most significant means of participating in our unique American democracy. As lawyers, we are accustomed, by training and practice, to embracing an adversarial role while still advancing a principled position.

Still, many of us in the bar could not help but be deeply troubled by the implications of some of the rhetoric in this year’s election campaign upon our long-held principles of American jurisprudence, including respect for the rule of law, due process, equal rights, and access to justice. Like so many of you, I have been angered and saddened to hear comments, and learn of events, that disrespect individuals who identify as minorities, or come from diverse backgrounds, beliefs and cultures. Such conduct erodes our Constitutional democracy, resulting in divisiveness, fear, and anxiety, all of which are felt acutely not only by adults, but perhaps most disturbingly, by our children as well.

In this context, I wanted to reach out to my colleagues at the bar to let you know that I believe the work of the Boston Bar Association, and its mission, have rarely been more relevant.

The BBA has a strong record of rising above division, finding common ground, and inspiring diverse groups to overcome disagreement to advance access to justice and excellence in the practice of law. We are – and will continue to be – a solutions-oriented convener that welcomes all stakeholders to exchange ideas and build relationships. But we also bear a responsibility, to one another and in the service of our communities, to be ever watchful and vigilant in ensuring that individual and due process rights remain valued and protected as bedrock principles in the implementation of our laws.

I write to our members now, to assure you that the BBA stands ready, willing and able to answer any necessary call to action resulting from this climate of uncertainty and ever changing events.

Over the past week, we have heard many expressions of concern, – both from our members and from local organizations with whom we partner.  But we have also experienced a true sense of inspiration by the commendable desire of those same members and organizations to become actively engaged. We recognize that as lawyers, we are at our best when we are dealing with well-defined issues and actual cases and controversies. I want to state — unequivocally — that we remain committed to our work on the following fronts:

Immigration:

  • The BBA is committed to protection of due process rights for all, as enumerated in the United States Constitution, with its Bill of Rights, and our Massachusetts Constitution, with its Declaration of Rights. Yet it is not enough for us to remain watchful. We will be empowering others to do the same through “Know Your Rights” programs in our communities and schools.
  • We must remain cognizant of deportation as a potential collateral consequence of involvement with the justice system. Just this week, the SJC heard arguments on a case regarding the so-called Annie Dookhan defendants, in which the BBA filed an amicus brief asking the Court to vacate all remaining convictions without prejudice. The risk that any of these individuals might face deportation proceedings on the basis of a conviction supported by tainted drug-lab evidence adds greatly to our argument for a “global remedy.”

Harassment, discrimination, and hate crimes:

  • I share the concern of many of our members over the recent spike in acts of violence and intimidation against members of minority populations. Such actions must never be tolerated. We will continue to work with our partners at the six local affinity bar associations – and seek ways to engage with other, similar organizations – to defend individuals and groups that are under threat, and to educate people about their rights.

Access to justice:

  • Our advocacy on behalf of access to justice for all residents will not waver. Join me on January 26th at Walk to the Hill as we once again make the case to the Governor and the Legislature, for a substantial increase in funding for civil legal aid, building on the BBA’s Investing in Justice task-force report. Providing all with access to justice is more important than ever.
  • In addition, we are working with Attorney General Maura Healey and other legal services organizations to identify emerging legal needs in the community, particularly as they pertain to the increase in Hate Crimes and Immigration issues.

The BBA will continue to do everything we can to support the core values of meaningful access to justice and of diversity and inclusion that are at the heart of who we are as an organization of lawyers. Now is the time for all of us at the BBA to show Boston, the country, and the world that we can continue to advance respectful, innovative, and common-ground solutions to big challenges. But that must start at home with listening to one another and getting involved. I am proud and grateful to work with all of you, and I have no doubt that you will continue the great tradition in this Commonwealth during times of change or uncertainty, by rolling up your sleeves and asking the simple question, “How can I help?”

Carol A. Starkey is the president of the Boston Bar Association. She is a partner at Conn, Kavanaugh, Rosenthal, Peisch & Ford. 


The New Transgender Anti-Discrimination Law and Guidance Issued by the Attorney General’s Office and the MCAD

peranersweet_andreaby Andrea Peraner-Sweet

Heads Up

On July 8, 2016, Governor Baker signed into law An Act Relative to Transgender Anti-Discrimination, St. 2016, c. 134 (the “Act”), expanding Massachusetts’ protection against gender identity discrimination. Before the Act, the Transgender Equal Rights Act (“TERA”), St. 2011, c. 199, had prohibited gender identity discrimination in employment, housing, education, credit and lending. The Act now prohibits gender identity discrimination in places of public accommodation. G.L. c. 272, § 98, as amended by St. 2016, c. 134, § 3. It also requires places of public accommodation that lawfully segregate or separate access based on a person’s sex to “grant all persons admission to, and the full enjoyment of, such places of public accommodation, consistent with the person’s gender identity.” G.L. c. 272, § 92A, para. 2, as amended by St. 2016, c. 134, § 2 (emphasis added).

Guidance on the new law was issued on September 1, 2016, by the Attorney General’s Office (“AGO”) and the Massachusetts Commission Against Discrimination (“MCAD”). The MCAD issued clarified guidance on December 5, 2016, as discussed in more detail below. This article provides an overview of the AGO and MCAD guidance and recommended best practices.

Overview

 Effective October 1, 2016, the Act amended G.L. c. 272, §§ 92A and 98 to include gender identity as an unlawful basis for discrimination in places of public accommodation. St. 2016, c. 134, § 5. A place of public accommodation is “any place whether licensed or unlicensed which is open to and accepts or solicits the patronage of the general public.” G.L. c. 272, § 92A. The definition is broad: a place of public accommodation can be either public or private, can provide products or services (regardless of whether it charges for products, services, or admission), and can include retail stores, restaurants, hotels, theaters, museums, libraries, public facilities, and sports and health clubs. AGO Guidance, p. 2. After a lawsuit filed by four religious organizations (which has been voluntarily dismissed), the AGO removed an unqualified reference to “houses of worship” from its list of examples of places of public accommodation. The MCAD similarly clarified that although the Act would not apply to religious organizations if such application “would violate the organization’s First Amendment rights,” places of public worship may be subject to the public accommodations law if they engage in, or their facilities are used for, a “public, secular function.” MCAD Guidance, p. 4.

Gender identity is defined as “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” G.L. c. 4, § 7, Fifty-ninth.  A person’s gender identity must be “sincerely held as part of the person’s core identity.” Id. It includes transgender, that is, “a person whose gender identity is different from that person’s assigned birth sex.”  AGO Guidance, p. 1; MCAD Guidance, p. 6.

Examples of unlawful gender identity discrimination by places of public accommodation include: refusing or denying services; offering different or inferior services; advertising the refusal to accept business from or patronage of transgender or gender non-conforming individuals; providing false information about the availability of products, goods or services, facilities or admission; and harassment or intimidation. AGO Guidance, p. 2; MCAD Guidance, pp. 4-5. Moreover, it is now a crime, punishable by fine and/or imprisonment, and subject to a private right of action, for any individual to “aid or incite another in making a distinction, discriminating against or restricting an individual from a place of public accommodation” based on gender identity. MCAD Guidance, p. 4.    

Use of Sex-Segregated Facilities

By far, the law’s most controversial provision concerns the use of sex-segregated facilities (e.g., bathrooms). Although places of public accommodation need not eliminate sex-segregated facilities, they must now allow patrons to use the facility most consistent with their gender identity. G.L. c. 272, § 92A, para. 2, as amended by St. 2016, c. 134, § 2. A person should be presumed to be using the facility most consistent with their gender identity if the person is not engaged in any improper or unlawful conduct. AGO Guidance, pp. 2-3. A person should not be presumed to be using the wrong facility based solely upon the person’s appearance. Id., p. 3.

If a place of public accommodation has a legitimate concern (i.e., about potentially improper or unlawful conduct) as to whether a person is using the appropriate facility, a limited inquiry of the person is recommended through a “private and discrete conversation.” Id., pp. 3-4. After confirming that the person is using the appropriate facility, the inquiry should end. Id., p. 4.

Improper or Unlawful Purpose

Gender identity cannot be asserted for an “improper or unlawful purpose.” G.L. c. 4, § 7, Fifty-ninth. Examples of such conduct include:

  • loitering in a facility for the purpose of observing other patrons;
  • harassment of employees or patrons;
  • threats or violence;
  • photographing or videotaping others without their permission; and
  • violation of the law.

AGO Guidance, p. 5.

If a place of public accommodation has reasonable grounds to believe that a person is using the facility for an improper or unlawful purpose, it may take action consistent with its usual policies regarding removing persons who engage in improper conduct, including contacting law enforcement if warranted. Id. 

Request for Proof of Gender Identity

Only in very limited circumstances is it permissible to request proof of gender identity. AGO Guidance, p. 4; MCAD Guidance, pp. 6-7. If a place of public accommodation, such as a health or sports club, regularly requires documentation of gender for all members, an individual’s gender identity may be documented by presenting “any one of the following:

  • (1) a driver’s license or any other government-issued identification;
  • (2) a letter from a doctor, therapist or other healthcare provider;
  • (3) a letter from a friend, clergy or family member regarding the individual’s routine conduct such as dress, grooming and the use of corresponding pronouns; or;
  • (4) any other evidence that the gender identity is sincerely held as a part of the person’s core identity.”

AGO Guidance, p. 4 (emphasis in original); MCAD Guidance, pp. 6-7 (providing additional examples). A place of public accommodation cannot use a request for documentation to harass, intimidate, embarrass or otherwise discriminate. AGO Guidance, p. 4; MCAD Guidance, p. 6. 

Best Practices

The Act’s major change is to ensure that places of public accommodations are accessible to all persons, consistent with their gender identity, and that employees of public facilities are properly trained in the Act’s provisions. Most businesses updated their anti-discrimination policies following enactment of the TERA; similar updates are warranted in light of the Act. The following adapts the best practice recommendations in the updated MCAD guidance for places of public accommodation:

  • Update employment policies and training materials to include a statement that discrimination and harassment based on gender identity is prohibited;
  • Prohibit derogatory comments or jokes about transgender people and promptly investigate and discipline persons who engage in prohibited conduct;
  • Update business and personnel records, payroll records, email systems and all other administrative records to reflect the stated name and gender identity of employees, clients and vendors;
  • Use appropriate names and pronouns corresponding to each person’s stated gender identification in communications;
  • Avoid gender-specific dress codes and permit attire that is consistent with each person’s stated gender identity;
  • Develop a written policy concerning procedures for when a person undergoes gender transition and which promotes the confidentiality of the person’s transition; and
  • Develop a policy that provides access to any sex-segregated facility consistent with a person’s gender identity and train all staff on the policy.

The Act is not expected to usher in a new round of litigation, in light of the TERA’s prior enactment and the public accommodation law’s liberal construction  by courts and the MCAD.  See e.g., Joyce v. Town of Dennis, 705 F. Supp. 2d 74, 83 (D. Mass. 2010).  But, all places of public accommodation should review their policies and procedures to ensure that they are in compliance with the new law.

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.


Pay Equity in Massachusetts: What Every Lawyer Needs To Know

gabor_davidby David Gabor

Legal Analysis

Two significant changes affecting pay equity are on the horizon for Massachusetts employers. The first is a new Massachusetts law, An Act to Establish Pay Equity (the “Act”), effective July 1, 2018.  The Act rewrites section 105A of G. L. c.149 (“section 105A”), which prohibits discrimination based on an employee’s sex in the payment of wages. The second change is issuance of a revised Employer Information Report (“EEO-1”), effective March 31, 2018.  The EEO-1 is a form that that private employers and federal contractors must file annually with the U.S. Equal Employment Opportunity Commission (“EEOC”) that provides company employment data by job category, race/ethnicity, and gender.  The EEOC uses the data to examine employment patterns and assist its enforcement of anti-discrimination laws.  Counsel can take a number of steps to prepare clients for the changes embodied in the Act and the revised EEO-1.

I. An Act to Establish Pay Equity

A. Basic Provisions.

Section 105A(c) as revised by the Act contains three basic requirements: (i) employers may not inquire about an applicant’s salary or benefits history before extending an employment offer that contains compensation terms; (ii) employers may not prohibit employees from talking to their co-workers about wages or benefits; and (iii) employers must pay women based on competitive market rates and not salary history.  Those changes are premised on the theory that using salary history disadvantages those who have been the victim of past pay discrimination.

Section 105A(b) inserted by the Act provides an exception to the equal pay requirement if there is a legitimate business reason to pay a man more than a woman (e.g., a bona fide seniority system; a bona fide merit system; a bona fide system that measures productivity; geographic location; education, training or experience; or travel).  Employers still should consider reviewing their pay systems for gender bias to ensure that exceptions, if applied, are not discriminatory.

Under new section 105A(d), an affirmative defense to claims of pay inequality is available to employers who perform a good faith self-evaluation of their pay practices that is reasonable in detail and scope at least once every three years.  The employer must also be able to demonstrate reasonable progress in addressing any disparity identified during a self-evaluation.  Corrective action may not, however, include lowering one individual’s salary to correct an identified disparity.

As with most employment statutes, the Act prohibits retaliation against a person who has engaged in a protected activity.  Accordingly, employers must protect from retaliation employees who file complaints or participate in an investigation or litigation.  Many practitioners believe that retaliation is the easiest form of discrimination to prove because it can often be demonstrated through timing.  Retaliation can be established through a “but/for” test to determine whether an adverse action took place under the Act within a close temporal proximity to the protected activity.

B. Steps Clients Should Take.

Lawyers should encourage clients to begin compliance efforts by performing a self-audit to identify any instances of pay disparity. Depending on the results, clients may then revise their policies, processes, and written materials and online applications, and conduct appropriate training prior to the Act’s effective date.

Self-audits require a careful review of compensation structures to identify pay disparities between positions that are similar in title or function and which involve “comparable work.”  An analysis of pay practices should be conducted even if there is no evidence of overt gender bias, because pay structures can unwittingly become misaligned over time.

Clients may need assistance to determine whether any disparity is unlawful, or the product of a legitimate business exception that is objective and reasonable.  If a disparity is unlawful, corrective action must be taken promptly. If a legitimate reason for the disparity exists, it should be carefully vetted. A disparity based on merit or productivity should be validated using reliable metrics, and the findings should be carefully documented.  An analysis of the business exceptions can not only be used to demonstrate compliance with the Act, but may provide an opportunity to identify and address other potential issues, such as other forms of employment discrimination.

The next challenge for lawyers and clients is determining appropriate corrective actions for pay disparities that do not qualify for legitimate business exceptions. Corrective actions must also demonstrate reasonable progress in eliminating pay inequities, including mechanisms to ensure that disparities do not arise in the future.  Solid documentation of corrective action plans and progress in eliminating pay disparity is critical to demonstrating compliance with the Act.

In addition to conducting a self-audit and implementing corrective actions, employers should take prompt steps to review and revise other employment practices such as the recruitment of new employees.  Employers can remove requests for salary information from on-line and written applications and instruct recruiters and hiring managers not to request salary information from applicants or during reference checks.

Lawyers should also advise their clients to review all employee materials (e.g., handbooks and manuals, offer letters, etc.) to eliminate language that might discourage employees from talking about pay or benefits with co-workers.  Furthermore, these changes should be communicated to employees, and any required notices must be posted when they become available. Documenting such efforts also helps demonstrate good-faith compliance with the Act.

Training employees involved in the onboarding process about what they can and cannot ask during interviews is another critical compliance step.  Such training can be coordinated with periodic equal employment opportunity and best practices training, and should be carefully documented.

Lawyers should also be aware that proposed corporate changes, such as a merger or acquisition, may warrant additional review in light of the Act. Suppose, for example, that when pay scales are reviewed prior to a merger, it becomes apparent that men at Company A are paid $100,000 a year, and for the comparable job, women at Company B are paid $60,000.  The parties involved in the merger must decide if the merger still makes sense taking into consideration corrective actions that may be necessary to eliminate pay disparities.   How, for example, will such corrective measures impact the potential profitability of the merger?

By encouraging clients to implement these changes now, lawyers can help ensure that clients are fully aware of the Act and fully compliant before the Act goes into effect.

II. Changes to the EEO-1

A. Summary of Revisions.

The revisions to the EEO-1 are designed to capture detailed data about employees and wages that will enable the EEOC to improve its analysis of, and address, pay disparities based on discrimination against members of protected classes.  For example, the revised EEO-1 differentiates ten job categories and seven categories of “race/ethnicity.”  Employers might consider using some of the analytical methods recommended above to examine employment practices with respect to protected classes.

The reporting requirements of the revised EEO-1 are extensive.  Effective March 31, 2018, employers with 100 or more employees will need to provide summary pay data, including the total number of annual hours that full- and part-time employees work, in each of the twelve pay bands listed for each EEO-1 job category.  Employers must also report the aggregate hours worked by all employees in each pay band.  For 2018 filings, the 100-employee threshold is met if the employer has 100 or more full- or part-time employees during any pay period between October 1 and December 31, 2017.

Summary pay data required on the revised EEO-1 include the Form W-2 Box 1 earnings for all employees identified in the selected pay period, including employees who no longer work for the company at year’s end.  Summary pay data do not include income earned at the end of 2017 but paid in 2018.  Employees’ hours counted during a pay period must be reported as an aggregate value for each job category and pay band (i.e., the total hours worked during that year by all employees reported in that job category and pay band).  For non-exempt employees, employers must count the actual hours worked.  Exempt employees are credited with 40 hours per week for full-time employees or 20 hours per week for part-time employees.  Exempt employees’ hours are multiplied by the number of weeks that they were employed during the year.

The filing deadline for the Form EEO-1 has changed from September 30th to March 31st.  This change makes it possible to coordinate such mandated reporting with year-end income reporting.

B. Steps Clients Should Take.

Clients required to file the revised EEO-1 form should begin developing processes to collect the required data.  Implementing such processes will require careful coordination between the human resources department, the human resource information system, and the payroll department (or payroll vendor).  Such processes should be tested well ahead of the compliance date to ensure that information is captured accurately.

Lawyers should promptly begin to assist clients with analysis of the data that will be submitted on the revised EEO-1.  Delaying that analysis could limit an employer’s ability to develop, implement, and document necessary corrective actions.

Employers can use 2016 Form W-2’s to create a mock EEO-1.  Lawyers and their clients can then review the mock EEO-1 just as the EEOC would: to identify pay disparities that may lead to an investigation and possibly litigation.  To the extent the data suggests that a pay disparity exists, employers can compile evidence to demonstrate the legitimate reason(s) for the pay differential.  Such evidence may include records of a seniority system, merit pay, or productivity-based compensation.

Employers should also consider applying some of the steps recommended above for compliance with the Act to an analysis of all protected classes identified on the revised EEO-1.  Such an analysis may reveal the need to create new company policies, modify existing policies, provide training to management, and create programs to help develop job skills for employees in protected classes.

III.      Conclusion

            By encouraging employer clients to take the steps described in this article now, counsel can help ensure that potential issues of pay inequality are identified and corrected prior to the effective date of the changes implemented by the Act and the revised EEO-1.  Such steps may also enable employers to identify and remediate other potential claims of discrimination before they become problematic.

David G. Gabor is a partner with The Wagner Law Group, PC. His practice focuses on employment law and human resources matters.


First Court Administrator Reflects on Five Years of ‘Collaborative Partnership’

spence_harryby Harry Spence

Voice of the Judiciary Guest Contributor

In the last three and one-half years, Chief Justice Paula Carey and I have established that collaborative leadership of the Trial Court, a Massachusetts peculiarity, can work. Perhaps more important, the judges and staff of the Massachusetts Trial Court have convincingly demonstrated that they are anxious to modernize the judicial system. The result has been that together we in the Trial Court have accomplished considerable modernization of the system, and have set the stage for even more dramatic progress in coming years. I approach the end of my five-year term as Court Administrator with a great deal of confidence that the Trial Court will continue to improve the delivery of justice in future years, despite the near certainty that the competition for state resources will grow increasingly desperate in the foreseeable future.

It is important to recognize that prior to the reform legislation of 2011, there was little chance that the operations of the Trial Court could improve. Most important, Massachusetts had never granted to the Judicial Branch the most elementary condition of good management: the power to hold employees accountable for their performance. Until 2011, every employee of the Trial Court had lifetime tenure and could only be terminated “for cause”—violation of the law or “moral turpitude,” whatever that might mean. The Trial Court had 8000 employees in 2007 because if an employee performed his or her tasks poorly, the Court’s only option was to hire another employee to do the recalcitrant employee’s work.

In addition, the Massachusetts judicial leadership, unusually among their colleagues nationally, had rarely taken advantage of a statutory provision permitting the hiring of a court administrator.  The Massachusetts judiciary had a court administrator, reporting to the Chief Justice for Administration and Management (CJAM), from 1978 to 1992. Since that time, no CJAM had elected to appoint a court administrator.  This choice was extremely rare among judicial leadership nationally.

The reform legislation of 2011 profoundly changed all that. The new statute eliminated the “for cause” provision, providing instead that an employee of the Trial Court could be terminated so long as the termination was not “arbitrary or capricious.” Additionally, the hiring of a court administrator was no longer optional with the Trial Court leadership, but became a mandatory appointment of the Supreme Judicial Court.  The Court Administrator was to partner with the renamed Chief Justice of the Trial Court in the leadership of the Trial Court.

It was obvious from the outset that the successful implementation of the new governance structure required above all that there be no daylight between the Chief Justice and the Court Administrator. That necessary condition was facilitated by the staggered appointments of the Court Administrator and the Chief Justice. With staggered appointments, the Supreme Judicial Court can confer with whichever of the two is an incumbent on the appointment of his or her partner. This greatly increases the likelihood that the requisite chemistry between the partners will prevail.

In theory, each of the two partners has a clearly defined domain: judicial policy for the Chief Justice and management and administration for the Court Administrator. In reality, of course, the great majority of issues confronting the leadership of the court are a complex tangle of judicial policy and administration. The opportunities for territorial dispute are legion. Recognizing this, Chief Carey and I resolved upon a flexible joint leadership in almost all matters. In essence, neither of us would make a decision that the other wasn’t fully supportive of—a resolve that could prove either liberating or paralyzing.  In short order, it became clear that our shared values, our common posture towards risk, and, soon enough, our genuine friendship and pleasure in each other’s colleagueship assured that the resolve was liberating.

In fact, the relationship between the Chief Justice and the Court Administrator is simply a microcosm of the entire court system: the relationship requires constant negotiation about power and authority. That negotiation, which quickly became easy second nature to the two of us, is symptomatic of the entire system. For the allocation of power and authority in the system is so complex; so ridden with independent, statutory mandates, often held by persons with lifetime tenure; so fraught with vetoes; that progress in the system depends on the ability of its protagonists to deliberately and consistently put mission before ego and power in the thousand microtransactions that move the system.  Never have I encountered an organization that requires such maturity and forbearance from so many actors.

And so the relationship between Chief Justice and Court Administrator models exactly the qualities that must be emulated throughout the system. It is the creation of a culture of collaboration and comity that is the primary work of the leadership team. The structure only works if all parties extend trust and respect to all others.  For example, when I arrived at the Trial Court, I was struck by the constant reference to the “war between the clerks and the judges.” There is much evidence that the system has put that largely mythical conflict behind it. We need to move beyond all the old myths of internal conflict.

If the court system is to nurture a culture of genuine collaboration, it must constantly emphasize that the effective delivery of justice is a team activity, which requires that every actor in the system carry out his or her assigned task to the best of their abilities. That belief permeates the Judiciary today: the work of the custodian in a courthouse contributes as surely to the dignity of the proceedings as the work of a judge.

Forty thousand people in Massachusetts enter a courthouse every day, coming with their most acute fears, their fondest hopes, their most aggravated controversies, their most profound conflicts. That their thousands of conflicts and controversies get resolved day in and day out with so little crisis or public furor is nothing short of astonishing—and it is an extraordinary credit to our judges, our clerks and their staffs, our Probation Service, our security staff, and innumerable others who operate this system. I retire honored to have served with such persons and confident that they will continue to exercise the moral qualities necessary to the progress already evidenced in the work of the past four years.

Harry Spence, Massachusetts’ first Court Administrator, oversees a $630 million budget, 6,300 court staff and 100 court facilities, in concert with the Trial Court Chief Justice.