Massachusetts High Courts Weigh In On the Limits of Local Control Over Cannabis Businesses

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  by Stephen Bartlett

   Legal Analysis

I. Introduction

Within the past year, the Supreme Judicial Court (“SJC”) and Appeals Court provided some clarity on the role of municipalities in the Commonwealth’s adult-use cannabis market.  Through three cases – West Street Associates LLC v. Planning Bd. of Mansfield, 488 Mass. 319 (2021), Mederi, Inc. v. City of Salem, 488 Mass. 60 (2021), and Valley Green Grow, Inc. v. Town of Charlton, 99 Mass. App. Ct. 670 (2021) – the courts addressed the limits of municipal authority within the cannabis licensing regime established by the Cannabis Control Commission (“Commission”).  In different ways, these cases clarified some of the uncertainty left by “An Act to Ensure Safe Access to Marijuana (the “Act”, now codified at General Laws c. 94G), providing important guidance to those seeking to resolve how much control municipalities may exert over prospective cannabis licensees.  In turn, the decisions highlight important ambiguities that remain unaddressed.

II. Statutory Background – Chapter 94G

In 2017 the Massachusetts Legislature passed the Act, which established the parameters for the state licensing regime that the newly established Commission was to oversee and manage.  The Act envisioned specific roles for municipalities within the Commission’s licensing framework – most notably: 1) requiring prospective marijuana establishment licensees to first obtain a Host Community Agreement (“HCA”) before submitting a license application to the Commission; and 2) permitting cities and towns to adopt ordinances and by-laws that impose reasonable safeguards on the operation of marijuana establishments.[1]  However, the Act provided scant detail on the process through which prospective licensees and municipalities should negotiate HCAs and failed to clearly delineate the limits of municipal control over the location and operation of marijuana establishments.  Perhaps unsurprisingly, these noticeable gaps in the Act spurred litigation as the nascent adult-use cannabis industry jostled with local authorities over the standards for issuing HCAs and legality of local bylaws purporting to restrict cannabis facilities and their accessory uses.

III. West Street Associates LLC v. Planning Bd. of Mansfield, 488 Mass. 319 (2021) –
Home Rule and Preemption of Existing Town Bylaws

In West Street Associates LLC v. Planning Board of Mansfield (“West Street”), the SJC addressed the limits of local regulation of adult-use marijuana facilities, finding that a local bylaw established in conflict with a provision of the Act was preempted and, therefore, invalid.

Before the Act took effect, many municipalities in the Commonwealth, including the Town of Mansfield, adopted bylaws requiring any entity seeking to obtain a license to operate a medical marijuana establishment to be a non-profit entity.[2]  Such bylaws mirrored a then-existing requirement under state law.  However, the Act represented a sea change by declaring, in salient part, that “[n]otwithstanding any general or special law to the contrary, any person with a provisional or final certification of registration as of July 1, 2017[,] to dispense medical use marijuana … shall be entitled to convert from a non-profit corporation … into a domestic business corporation….”[3]

In West Street, a for-profit entity (CommCann, Inc.) that had converted from a non-profit entity in accordance with the Act, applied for and received a special permit from the Mansfield Planning Board to construct a medical dispensary on West Street.  An abutting landowner, West Street Associates LLC, challenged the issuance of the special permit pursuant to G.L. c. 40A, § 17, arguing that the Planning Board erred in issuing the special permit to a for-profit entity in violation of the then-existing town bylaw.  The trial court upheld the Planning Board’s issuance of the special permit to CommCann, Inc. and West Street Associates LLC appealed.

On direct appeal to the SJC,[4] the Court affirmed the trial court ruling under the Home Rule Amendment to the Massachusetts Constitution.  The Home Rule Amendment expanded local power by granting municipalities the authority to undertake any action “not inconsistent” with the Constitution or laws of the Commonwealth.[5]  While acknowledging the purpose of the Home Rule Amendment was to preserve municipal rights of self-governance, the Court highlighted the inherent limit of local authority, ruling that municipalities may not intrude into the realm of “inconsistency with the constitution or laws enacted by the general court.”  Relying on familiar principles of implied preemption,[6] the Court concluded that the Mansfield bylaw could not require all medical marijuana dispensaries to organize as nonprofit organizations.  The Court explained that “legislative intent to preclude local action… may be inferred where the local regulation would somehow frustrate the purpose of the statute so as to warrant an inference that the Legislature intended to preempt the subject.”[7]  Here, the Mansfield bylaw frustrated the purpose of the Act because the Legislature “evinced its clear intent to allow for-profit entities to distribute medical marijuana.”  Therefore, the bylaw was unlawful.

IV. Mederi, Inc. v. City of Salem, 488 Mass. 60 (2021) – Host Community Agreements

In Mederi, Inc. v. City of Salem, the SJC affirmed the inherent discretion of cities and towns to decline to execute an HCA with a particular entity, confirming that section three of the Act[8] does not create an entitlement to an HCA for prospective marijuana establishment licensees. 

The City of Salem established a competitive HCA application process overseen by an “HCA Committee” and capped the number of adult-use retail facilities that could be operated within the City limits at five.  Salem’s process emulated the competitive processes for state cannabis licenses used in a number of other jurisdictions across the country, including Georgia, New Jersey, Ohio and Virginia.  Mederi, Inc. (“Mederi”) applied for an HCA, but the City denied its request to negotiate, after determining that four other applicants were more qualified.  Mederi then brought both a mandamus claim and a certiorari action pursuant to G.L. c. 249, § 4 to challenge the City’s issuance of HCAs to other entities but not its own.  After failing in the trial court, Mederi appealed, arguing to the SJC[9] that:  1) the City was required execute an HCA with Mederi upon its submission of the required application materials; 2) the City’s evaluation of the applications was arbitrary and capricious; and 3) the application process itself was an unlawful “pay-to-play” scheme.  Mederi’s first argument – the crux of the mandamus claim – was that, because an HCA is a prerequisite to applying to the Commission for a license, a municipality’s role in the licensing structure must be purely ministerial.  Otherwise, cities and towns and not the Commission would impermissibly control which entities won licenses and which ones did not.[10]

The SJC was unpersuaded.  As to the first argument, the SJC concluded that nothing in the Act requires cities or towns to enter into an HCA with a prospective licensee and that cities and towns have broad discretion to enter into HCAs with those applicants they determine to be most suitable, provided that their decisions are neither arbitrary nor capricious.  As to the second argument, the SJC concluded that the City’s exercise of its discretion in selecting other applicants was above board.  Indeed, the City’s HCA Committee expressly and specifically concluded that the applications of Mederi and two other entities were “not as strong as the others.”  For instance, Mederi’s application lacked demonstrations of “sufficient capitalization” and “direct experience in the industry.”

The SJC also rejected Mederi’s final argument that Salem’s HCA process was a “pay-to-play” scheme unduly benefitting deep-pocketed entities willing contribute funds and make donations in excess of the City’s statutorily mandated 3% community impact fee.[11]  Although receptive to the arguments, the SJC ruled that Mederi lacked standing to challenge the legality of excess community impact fees because he neither executed an HCA with Salem nor paid any community impact fees.  The Court also rejected Mederi’s other “pay-to-play” arguments, which decried the additional financial benefits pledged by other applicants, because Mederi presented no credible evidence that the City actually based its decisions on the promise of such additional benefits. 

However, in dicta the Court raised valuable questions about the purpose of HCAs and underscored the ambiguity in the Act that could thwart (and, in fact, some believe has thwarted)[12] the Commission’s effort to promote diversity, equity and inclusion in the fledgling adult-use industry.  The SJC acknowledged that the Commission’s regulations[13] call for economic empowerment priority applicants to receive “priority application review” by the Commission.  However, because municipalities function as de facto gatekeepers and are not required by law to consider whether any entity seeking to enter into an HCA is an economic empowerment priority applicant, such applicants may never receive Commission review.  In turn, the SJC maligned the growing practice among municipalities of requiring prospective licensees to make payments in addition to the 3% community impact fee described in the Act.  According to the SJC, this too had the potential to create an unfair advantage for better-capitalized applicants. 

V. Valley Green Grow, Inc. v. Town of Charlton, 99 Mass. App. Ct. 670 (2021) – Agricultural and Accessory Uses

Finally, in Valley Green Grow, Inc. v. Town of Charlton, the Appeals Court considered what categories of activity could be considered “ancillary” to cannabis cultivation and, therefore, part and parcel of an agricultural use for the purposes of local zoning.  In a two-to-one decision, the Appeals Court decided that cannabis manufacturing activities and a co-located energy generation facility were such “ancillary” uses that were permitted as of right within certain zoning districts of the Town of Charlton. 

Valley Green Grow, Inc. sought to overturn a decision of the Charlton Planning Board, which concluded that the company’s proposed marijuana establishment constituted “light manufacturing” and was therefore not allowed in agricultural and commercial business districts.  Notably, when the company submitted its application for site plan approval to the Planning Board, Charlton’s zoning bylaw stated that “indoor commercial horticultural/floricultural establishments (e.g. greenhouses)” “are allowed by right in every zoning district in the [t]own.”[14]  On summary judgment, the Land Court disagreed with the Charlton Planning Board and concluded that the proposed use of the site was properly classified as an indoor commercial horticulture/floriculture establishment and therefore an allowable use as of right.  A neighboring property owner and intervener in the Land Court case appealed the decision.

Valley Green Grow, Inc.’s proposed plans for the site consisted of a one million square foot indoor marijuana growing and processing facility, including 860,000 square feet of closed greenhouses, a 130,000 square foot postharvest processing facility, and a 10,000 square foot cogeneration facility.  The Planning Board and intervening neighbor argued that the cogeneration facility and processing operation were the principal uses proposed by the site plan and bore no resemblance to agricultural use.  A majority of the Appeals Court panel disagreed, concluding that a “reasonable relationship” existed between the cannabis cultivation and manufacturing/cogeneration activities.  Analogizing the proposed cannabis operation to the harvesting of fruits and vegetables that require separation from trees or stalks, the Appeals Court concluded that “the proposed cogeneration facility, incidental processing, and incidental manufacturing, when viewed as components of the entire indoor commercial horticultural use, are allowed as of right in the agricultural district.”

In dissent, Justice Peter Rubin voiced concern about the slippery slope on which the majority’s ruling perilously rested, surmising “that, despite the [zoning] bylaw, a project like this, with its eighteen-megawatt electric power plant, must be permitted anywhere in Charlton, in any zoning district, including a residential one.”  In contrast to his colleagues, Justice Rubin promoted deference to the Planning Board’s reasonable interpretation of the town’s bylaw that an eighteen-megawatt electric power plant and industrial facility for manufacturing marijuana consumables removed this project from the realm of a traditional agricultural use allowed as of right in the town. 

VI. Conclusion

Although these three cases provide some additional clarity to local authorities and the industry, much ambiguity and confusion remain regarding the roles that municipalities can or should play within the Commonwealth’s adult-use cannabis licensing regime.  This reality did not go unnoticed by Justice Kimberly Budd, author of the opinion in Mederi, Inc. v. City of Salem, who recounted that the Commission has made several overtures to the Legislature for additional clarity – especially with respect to the provisions in c. 94G governing HCAs – but that each time the Commission has been rebuffed.  Perhaps prophetic, Justice Budd’s call for legislative action preceded increased public awareness and scrutiny of the shortcomings of c. 94G and the HCA construct, which seem to invite criminal enterprise and nefarious actors.[15]  As the drumbeat for legislative action grows, one would expect the Legislature to review with fresh eyes c. 94G and offer more certainty to an industry that shows no signs of slowing down.

[1] See G.L. c. 94G, § 3; 935 CMR 500 and 501 et seq.

[2] See W. St. Assocs. LLC v. Planning Bd. of Mansfield, 488 Mass. 319, 324, 173 N.E.3d 329, 333 (2021).

[3] 2017 Mass. Acts c. 55, § 72.

[4] The SJC exercised its right of direct appellate review.

[5] See Art. 89, § 6, of the Amendments to the Massachusetts Constitution.

[6] State law can preempt local bylaws either expressly (“express preemption”) or by implication (“implied preemption”).  See Bos. Gas Co. v. City of Somerville, 420 Mass. 702, 704, 652 N.E.2d 132, 133 (1995) (“To determine whether a local ordinance is inconsistent with a statute, this court has looked to see whether there was either an express legislative intent to forbid local activity on the same subject or whether the local regulation would somehow frustrate the purpose of the statute so as to warrant an inference that the Legislature intended to preempt the subject.”)

[7] W. St. Assocs. LLC v. Planning Bd. of Mansfield, 488 Mass. 319, 323-24, 173 N.E.3d 329, 332-33 (2021) (internal quotation marks omitted).

[8] G.L. c. 94G, § 3 (A “marijuana establishment or a medical marijuana treatment center seeking to operate or continue to operate in a municipality which permits such operation shall execute an agreement with the host community setting forth the conditions to have a marijuana establishment or medical marijuana treatment center located within the host community”).

[9] The SJC exercised its right of direct appellate review.

[10] Mederi, Inc. v. City of Salem, 488 Mass. 60, 65-67, 171 N.E.3d 158, 162-64 (2021).

[11] G.L. c. 94G, §3(d) (Community impact fee “shall not amount to more than 3 per cent of the gross sales of the marijuana establishment or medical marijuana treatment center….”)

[12] https://www.bostonglobe.com/2021/11/15/opinion/massachusetts-is-failing-grow-marijuana-industry-equitably/?p1=BGSearch_Advanced_Results.

[13] 935 CMR 500 and 501 et seq.

[14] Valley Green Grow, Inc. v. Town of Charlton, 99 Mass. App. Ct. 670, 677, 173 N.E.3d 395, 402 (2021).

[15] https://www.bostonglobe.com/2021/05/14/metro/our-city-was-sale-fall-river-officials-react-after-former-mayor-jasiel-correia-found-guilty-extortion-fraud/?p1=BGSearch_Overlay_Results; https://www.bostonglobe.com/2021/09/28/metro/judge-orders-former-fall-river-mayor-jasiel-f-correia-ii-pay-back-more-than-310000-restitution-investors-smartphone-app/?p1=BGSearch_Advanced_Results.

Stephen Bartlett is a regulatory attorney at Foley Hoag focusing on cannabis, environmental, energy and infrastructure matters.


Chief Justice Gants and the Power of Concurrence

by Tad Heuer

Legal Analysis

Judges are often remembered for either their landmark opinions or their incisive dissents, and Chief Justice Ralph Gants wrote both. But over his twelve terms on the Supreme Judicial Court, he wielded adroitly a third option, more frequently than any of his fellow justices. On forty-three occasions — first as an Associate Justice and then as Chief — Justice Gants authored a concurrence.

Concurrences are a legal curiosity. Unlike a dissent, where a judge explains why his colleagues got it wrong, a concurring judge believes the opposite: that his colleagues got it right. Moreover, with each SJC justice writing roughly the same number of majority decisions each term, a concurring justice is voluntarily taking on additional and avoidable work. Yet it is precisely because concurrences are arguably unnecessary that they are so valuable. Concurrences can signal the potential limits of the majority opinion, indicate whether the majority reached the right result but for the wrong reason, or warn where a statute — while clear — creates an unintended result. And when used wisely, and unencumbered by the formal strictures of a majority opinion, a concurrence can illuminate a judge’s perspective on how the law could be more fair and more just.

With a nod to his beloved Boston Red Sox, Chief Justice Gants’ penchant for concurrences is best illustrated by turning to the SJC’s own box score. Chief Justice Gants served with fourteen other justices during his time on the Court and authored 260 opinions, 17 dissents, and 43 concurrences (including six instances when he added further nuance by concurring in part and dissenting in part). While Chief Justice Gants dissented on average about as frequently as his fellow justices (8% of his decisional writings, versus an average of 5% for his colleagues), 13% of his decisional writings were concurrences, compared with only 5% of those of his colleagues. With an average of nearly four concurrences per term, Chief Justice Gants nearly doubled the average of his next closest colleague, while more than tripling the one-concurrence-per-justice-per-term average of his colleagues generally. In raw numbers, he wrote 17 more concurrences than his next-closest colleague, Justice Robert Cordy, who served for four more years than Chief Justice Gants. Indeed, as of the time of his passing he had penned more concurrences than eight of his 14 colleagues combined.

While Chief Justice Gants concurred at least once in every year on the Court, his concurrences became more frequent in recent years with six each in 2017 and 2018, and eight in 2020. Yet he had a knack for attracting company. Of his 43 concurrences, only eleven were on his own: Thirteen brought along one other justice, sixteen brought along two other justices, and one even brought along three others. With 30 concurrences in criminal cases and 13 in civil, his topics ranged widely from homicide instructions and trial procedure to child custody and spendthrift trusts. But examining why he concurred so frequently provides a window into the jurist Chief Justice Gants was.

He used concurrences to point out where the Legislature may wish to revise statutes that compelled counterintuitive results that he perceived as unintentional. In a pair of cases involving the state wiretap statute, Commonwealth v. Tavares, 459 Mass. 289 (2011) and Commonwealth v. Burgos, 470 Mass. 133 (2014), he discussed the problematic practical consequences arising from the statutory requirement of a “connection with organized crime” as a prerequisite for its use, noting:

electronic surveillance is unavailable to investigate and prosecute the hundreds of shootings and killings committed by street gangs in Massachusetts, which are among the most difficult crimes to solve and prosecute using more traditional means of investigation.

“If the Legislature wishes to avoid this result,” he suggested, “it should amend [the statute] to delete those words.” Tavares at 305; Burgos at 149. Similarly, in Commonwealth v. LeBlanc, 475 Mass. 820 (2016), Chief Justice Gants used his concurrence to encourage the Legislature to harmonize contradictory statutory provisions (about when a driver needed to remain at the scene after causing an accident), while in Commonwealth v. Almonor, 482 Mass. 35 (2019) he wrote separately to “underscore the need for the Legislature to give careful consideration to amending G. L. c. 276, § 2B, to permit warrants to be applied for and approved remotely through reliable electronic means.” Id. at 69.

He used concurrences to signal the direction he felt the common law should go. This approach was most prominent in his four-member concurrence in Commonwealth v. Brown, 477 Mass. 805 (2017). In that case, the Court unanimously agreed that the felony-murder rule (permitting a conviction of murder in the first degree for the commission of an underlying violent felony resulting in a death) was constitutional. Chief Justice Gants nonetheless saw the opportunity through concurrence to narrow prospectively the scope of the rule to require actual – not constructive – malice inferred from the underlying felony:

When our experience with the common law of felony-murder liability demonstrates that it can yield a verdict of murder in the first degree that is not consonant with justice, and where we recognize that it was derived from legal principles we no longer accept and contravenes two fundamental principles of our criminal jurisprudence, we must revise that common law so that it accords with those fundamental principles and yields verdicts that are just and fair in light of the defendant’s criminal conduct.

Id. at 836.

This attention to ensuring that the development of the common law reflect the practical reality of the contemporary world pervaded other concurrences as well. In Commonwealth v. Berry, 466 Mass. 763 (2014), then-Justice Gants concurred to identify “an apparent inconsistency in our common law of homicide that we should confront when the issue next arises, i.e., whether a defendant’s state of mind must be considered in determining whether a murder is committed with extreme atrocity or cruelty.” Id. at 778. And in Miller v. Miller, 478 Mass. 642 (2018), involving a contentious child custody dispute, Chief Justice Gants concurred to argue that in future, the Court should consider discarding what he termed the “artificially binary decision-making framework” cobbled together from prior cases, and establish a “single, uniform standard — the best interests of the child — to be applied to all [custody] removal cases,” id. at 659.  He expressed concern that the existing “formalistic approach” could have “serious consequences for the parties involved.” Id. at 662.

And in a technical mortgage foreclosure case, U.S. Bank National Association v. Schumacher, 467 Mass. 421 (2014), then-Justice Gants’ concurrence was arguably more important than the majority opinion. The Schumacher Court held that because the statutory pre-foreclosure requirement (notice and a cure period) was not part of the exercise of the power of sale and foreclosure, failure to comply with the statute could not be raised as a defense in a post-foreclosure eviction action. Justice Gants agreed that the statute controlled the facts of the case, but wrote separately to express his concern about the “practical consequences of this opinion.” Id. at 431. His concurrence laid out his view of when it was appropriate to raise the statute as a defense: if the failure to comply with the statute “rendered the foreclosure so fundamentally unfair that [the defendant] is entitled to affirmative relief, specifically the setting aside of the foreclosure sale.” Id. at 433. This “fundamental unfairness” standard is now applied routinely in post-foreclosure actions.

He used concurrences to provide guidance to the lower courts. Sometimes his concurrences signaled that lower courts should be cautious about applying a majority decision too broadly. For example, he concurred in Flagg v. AliMed, Inc., 466 Mass. 23 (2013), primarily to “emphasize the limited scope of [the majority] holding, because I fear that ‘associational discrimination’ might otherwise be interpreted more broadly than the court’s opinion intends.” Id. at 39. Similarly, he concurred in Commonwealth v. Lopez, 458 Mass. 383 (2010), to clarify the “distinction between a search of a home and entry into a home, which, although it does not affect the outcome of this case, may have bearing on the validity of consent in other search cases.” Id. at 399.

In other instances, his concurrences provided frameworks for how lower courts might evaluate rapidly-changing areas of the law, particularly involving technology. These ranged from offering detailed thoughts on “how electronic automatic license plate reader data could be used by law enforcement consistent with constitutional rights to a reasonable expectation of privacy” (Commonwealth v. McCarthy, 484 Mass. 493, 512-13 (2020)), to clarifying his view that the law provides no “safe harbor to conduct a search incident to arrest of text messages or electronic mail messages” found on a cell phone (Commonwealth v. Phifer, 463 Mass. 790, 799 (2012)). Chief Justice Gants used concurrences to encourage his former trial court colleagues — faced with applying existing laws to new and novel factual scenarios — to think thoughtfully about how the Court might view those efforts on appeal.

He used concurrences to give voice to both the challenges and humanity inherent in the complex work of getting justice right. In Schumacher, he began his concurrence by acknowledging that “many mortgage borrowers who will claim such violations will not have the benefit of legal representation, and that our jurisprudence in this area of law is difficult for even attorneys to understand.” 467 Mass. at 431. In Commonwealth v. Williams, 481 Mass. 443 (2019), concurring in a case involving race and jury selection, Chief Justice Gants admitted that from his own experience as a trial judge “there are times, with the benefit of additional thought and the wisdom of hindsight, in which a judge will recognize that a discussion with a juror could have been handled more artfully.” Id. at 458. And he concurred to urge the Court to ensure that its decisions would be understood by the public as being consonant with justice. As he wrote in his concurrence in Commonwealth v. Johnson, 461 Mass. 1 (2009), “[w]e neither ensure that we do justice in a case of murder in the first degree nor ensure the public’s confidence that justice is done where we fail to address on the merits an issue that was never fairly considered because the underlying facts were mistakenly presented by the court on direct appeal.” Id. at 9.

Perhaps most importantly, he used concurrences to highlight what he saw as unfairness. In Commonwealth v. Baez, 480 Mass. 328 (2018), he concurred “to encourage the Legislature to consider the wisdom and fairness of the mandatory minimum aspect of [certain] enhanced sentences, especially where the predicate offenses were committed when the defendant was a juvenile.” Id. at 332. In Deal v. Massachusetts Parole Board, 484 Mass. 457 (2020), he used his concurrence to levy forceful criticism of the failure of the Parole Board to provide “meaningful individualized consideration” to the “distinctive attributes of youth offenders” when making parole decisions. While concurring in the denial of parole because such guidance did not exist at the time of Deal’s hearing, he warned that in future, “we would expect meaningful individualized findings that are far less conclusory and perfunctory than here.” Id. at 470. While only a concurrence, it signaled a disapproval for the Parole Board to ignore at its peril. And it was not only litigants whom Chief Justice Gants sought to protect from unfairness. In Commonwealth v. Leiva, 484 Mass. 766 (2020), he agreed with the Court’s revision of the protocols governing the conduct of defense counsel when their clients intend to testify falsely, but took issue with the majority’s “assumption . . . that defense attorneys will not abide by their ethical obligations to the court when hard decisions have to be made. . . .” He concurred to emphasize that such an assumption “is unfair to the defense bar.” Id. at 798.

Chief Justice Gants concurred up to the very end. Indeed, his last concurrence came in Commonwealth v. Long, 485 Mass. 711 (2020), released just days after his passing. Long addressed the charged issue of racial profiling in traffic stops, and although unanimous, generated multiple concurring opinions. Chief Justice Gants used his four-paragraph concurrence in Long to do three different things. First, he wrote as a justice, to emphasize that the motive of a law enforcement officer matters, and to reiterate that an officer cannot conduct an “inventory” search as a pretext for a more invasive “investigatory” search. Id. at 736. In so doing, he signaled that he would be watching closely in future cases for whether form was being exalted over substance. Second, he wrote as a colleague, explaining why he agreed in part with the more expansive concurring opinion of a colleague, but felt it unnecessary for the Court to reach certain additional constitutional questions identified therein. Id. And third, he wrote as the Chief Justice, in an effort to prevent intramural disagreements over the details from clouding the legal importance of the majority opinion in the eyes of the public: “[D]espite our jurisprudential differences reflected in the various opinions in this case, the court is unanimous in concluding that a motor vehicle stop that arises from racial profiling is unconstitutional . . . .” Id. This keen awareness of the subtle power of the concurrence—from the legal to the practical—demonstrates Chief Justice Gants’ acumen for the form at its finest.

In 1822, Thomas Jefferson complained in a letter to Supreme Court Justice William Johnson that the trend of the collective majority opinion disguised “whether every judge has taken the trouble of understanding the case, of investigating it minutely, and of forming an opinion for himself, instead of pinning it on another’s sleeve.” Chief Justice Gants was never at risk of such remonstration: his numerous concurrences reveal a justice who took the trouble to understand cases, who investigated cases minutely, and who took seriously his responsibility to offer the bench, bar, Legislature, and general public his own insights on how to do better justice.

Tad Heuer is a partner at Foley Hoag LLP, where his administrative law practice focuses on appellate litigation and on advising clients regarding complex federal, state, and local regulatory matters ranging from land use to energy.  He clerked for Supreme Judicial Court Chief Justice Margaret H. Marshall during the 2006-07 term, and is a member of the Boston Bar Journal Board of Editors.