CPCS v. AG – The SJC Establishes an Unprecedented, Global Remedy for the Victims of the Amherst Drug Lab Scandal to Address Extraordinary Lab Misconduct that Was Compounded by Intentional Prosecutorial Misconduct

Dan Marx_102x126

by Daniel Marx

Legal Analysis

In Committee for Public Counsel Services v. Attorney General, 480 Mass. 700 (2018), the Supreme Judicial Court provided an unprecedented remedy for the victims of the Amherst lab scandal, thousands of people who were wrongfully convicted based on evidence tainted by former state chemist Sonja Farak. Although the SJC recently established a protocol for the Hinton lab scandal to vacate the wrongful convictions that resulted from Annie Dookhan’s misconduct,[i] the Amherst case was different—and worse. Not only did Farak engage in extraordinary lab misconduct with far-reaching consequences, but her misdeeds were compounded by the prosecutorial misconduct of Assistant Attorneys General Anne Kaczmarek and Kris Foster, who minimized the scope of the scandal by withholding evidence about Farak’s drug abuse and misleading defense attorneys, the courts, and the public. As the SJC concluded in CPCS v. AG, “the government misconduct by Farak and the assistant attorneys general was ‘so intentional and so egregious,’” that “harsher sanctions than the Bridgeman II protocol [were] warranted.”[ii] Therefore, the SJC ordered the wrongful convictions of all “Farak Defendants” to be dismissed with prejudice, and the implementation of that remedy is now underway.

Lab Misconduct

Sonja Farak worked as a state chemist for 10 years, beginning at the William A. Hinton State Laboratory Institute in Jamaica Plain (“Hinton lab”) in 2003. Farak transferred to the satellite facility in Amherst (“Amherst lab”) in 2004, and she worked there until her arrest in January 2013. The Amherst lab was smaller, employed fewer chemists, and had “basically … no oversight.”[iii] Throughout her decade-long tenure there, Farak engaged in shocking misconduct.

As a chemistry graduate student, Farak smoked marijuana and also experimented with cocaine, ecstasy, and heroin. Shortly after joining the Amherst lab in 2004, Farak began to consume the “standards,” illegal substances used to test evidentiary samples. Over several years, she nearly exhausted the methamphetamine oil, and by 2009, she had stolen ketamine, cocaine, and ecstasy. Then, Farak turned to evidentiary samples submitted by police departments. During the worst periods of her addiction, through 2013, Farak abused drugs on a daily basis.

Farak’s misconduct also undermined the reliability of her colleague’s work. Farak had “unfettered access” to the entire lab, and in later years, she tampered with samples assigned to other chemists, violated security protocols, and manipulated inventory information. As the SJC recognized, her “extensive and indeterminable” misconduct, over many years, “diminishe[d] the reliability and integrity of forensic testing at the Amherst lab.”[iv]

Prosecutorial Misconduct

Unlike the Hinton case, the Amherst lab scandal also involved prosecutorial misconduct that the SJC characterized as “egregious, deliberate, and intentional.”[v] This troubling confluence of lab and prosecutorial misconduct prompted the SJC to impose “the very strong medicine of dismissal with prejudice” for all tainted convictions.[vi]

After Farak’s arrest in January 2013, investigators searched her car and collected drugs, paraphernalia, and counseling records that revealed Farak struggled with addiction and abused drugs in 2011. But neither the victims of the Amherst scandal nor the public learned about this critical evidence until almost one year later. Despite their legal and ethical obligations, AAG Kaczmarek (who prosecuted Farak) and AAG Foster (who handled to discovery requests about the Amherst lab) intentionally hid the documents, stonewalled defense attorneys, and misled the courts.

The improper efforts to minimize Farak’s misconduct were nearly as extensive as the lab misconduct itself. The AAGs mischaracterized exculpatory evidence as “assorted lab paperwork,” including the counseling records investigators forwarded under the subject line: “FARAK admissions.” They falsely insisted such documents were “irrelevant” and baselessly asserted “privilege” claims. They denied discovery requests, moved to quash subpoenas, and misled then-Superior Court Justice Jeffrey Kinder to believe that all evidence had been disclosed.

This prosecutorial misconduct severely undermined the judicial process. Relying on the “misleading evidentiary record,” Judge Kinder ruled Farak’s misconduct began in July 2012 and only affected her work. As a result, thousands of Farak Defendants received no post-conviction relief. In Commonwealth v. Cotto, 471 Mass. 85 (2015), and Commonwealth v. Ware, 471 Mass. 97 (2015), the SJC concluded “the scope of Farak’s misconduct [did] not appear to be . . . comparable to the enormity of Dookhan’s misconduct” and, for that reason, refused to extend to Farak Defendants the conclusive presumption of egregious government misconduct that, in Commonwealth v. Scott, 467 Mass. 336 (2014), it granted to Dookhan Defendants.[vii]

CPCS v. AG

More than two years after Cotto and Ware, the victims of the Amherst scandal still had not been identified, much less notified of their tainted drug convictions and afforded any meaningful relief. Thus, in September 2017, Petitioners in CPCS v. AG filed an action pursuant to G.L. c. 211, § 3, to address: (i) the scope of the scandal; (ii) the appropriate remedy for the victims; and (iii) specific policy proposals to prevent (and, if necessary, respond to) future crises.

Petitioners contended “all convictions based on drug samples tested at the Amherst lab during Farak’s tenure should be vacated and dismissed with prejudice, regardless of whether Farak signed the drug certificate,” because Farak’s lab misconduct, compounded by Kaczmarek and Foster’s prosecutorial misconduct, tainted the evidence in those cases.[viii] The AG conceded Farak undermined the reliability of samples that other chemists analyzed. Yet, based on Farak’s uncorroborated claim that she did not tamper with her colleagues’ work until June 2012, the AG argued any “whole lab” remedy should start at that later time.[ix] Taking a narrower view, the DAs insisted only defendants for whom Farak signed drug certificates were entitled to relief.[x]

Regarding the remedy to which “Farak Defendants” would be entitled, Petitioners asked the SJC to vacate all tainted convictions and dismiss the underlying charges with prejudice. The AG concurred, but only for the more limited class whom it considered Farak’s victims. Meanwhile, the DAs argued the Bridgeman II protocol was sufficient and no further remedy was required.

Finally, as a “prophylactic remedy” to avoid the need for protracted litigation to address any future scandal, Petitioners proposed the SJC issue: (i) a “Brady order” “requiring specific disclosures” by the Commonwealth in all criminal cases and, further, “setting forth specific disclosure deadlines”; (ii) a “Bridgeman II order” to “require a prosecutor that knew, or had reason to know, that misconduct had occurred in a particular case” to notify the Trial Court and CPCS within 90 days and to provide a list of affected defendants; and (iii) a Cotto order to “require a government attorney who knows that attorney misconduct affected a criminal case to notify” the Trial Court, CPCS, and the Office of Bar Counsel within 30 days.[xi] Recognizing the need for real reform, the AG endorsed the proposed orders. The DAs, however, disagreed, arguing the existing discovery rules are adequate and the SJC should not fashion a “one size fits all” solution for future problems.

“Farak Defendants”

The SJC defined the “Farak Defendants” to be narrower than “all Amherst lab cases” but broader than “only Farak cases.” It held that, in addition to persons for whom Farak signed drug certificates, “Farak Defendants” include all defendants whose cases were analyzed by any Amherst chemist on or after January 1, 2009, and all defendants convicted of methamphetamine offenses whose cases were handled by the Amherst lab during Farak’s tenure.[xii] For all those defendants, the SJC held their tainted convictions must be vacated and the underlying charges dismissed with prejudice.

The SJC explained its expanded definition of “Farak Defendants” reflected the “extensive and indeterminate nature” of Farak’s misconduct, which involved methamphetamine since 2004 and “spiraled out of control at the beginning of 2009,” when Farak began to manipulate lab systems, steal from police-submitted samples, and tamper with samples assigned to other chemists.[xiii] Such misconduct, the SJC held, “diminishe[d] the reliability and integrity of the forensic testing at the Amherst lab” and “reduce[d] public confidence in the drug certifications from other labs.”[xiv]

“Brady Checklist”

In addressing the proposed Brady order, the SJC affirmed the basic principle that, to fulfill his or her “core duty . . . to administer justice fairly,” a prosecutor must provide all material, exculpatory evidence to a defendant “without regard to its impact on the case.”[xv] This “Brady obligation” has long been recognized under the due process guarantees of Massachusetts Declaration of Rights and the U.S. Constitution; procedural rules, such as Mass. R. Crim. P. 14(a), the “automatic discovery” rule for criminal cases; and ethical rules, such as Mass. R. Prof. C. 3.8(d), (i), and (g), which prohibit prosecutors from avoiding the discovery of exculpatory evidence and require prosecutors to make timely disclosures. Nevertheless, rather than issue a standing Brady order, the SJC asked the Advisory Committee “to draft a proposed Brady checklist to clarify the definitions of exculpatory evidence.”[xvi] The ABA has promoted such checklists, and several federal courts have implemented them.[xvii]

As the SJC acknowledged, however, “no checklist can exhaust all potential sources of exculpatory evidence.”[xviii] Ironically, a detailed list of discoverable materials may obscure the more basic commitment to fundamental fairness. It is not hard to foresee disputes in which prosecutors elevate form over substance by arguing that evidence is not Brady material because it does not correspond to any category on a Brady checklist. Moreover, no checklist could have prevented the intentional misconduct that exacerbated the Amherst scandal. AAGs knowingly possessed exculpatory evidence about Farak’s misconduct, but they intentionally refused to turn it over to defendants.

Even for law-abiding, ethical prosecutors, there remains a deeper problem. CPCS v. AG demonstrates how evidence, such as Farak’s counseling records, appears from the conflicting prosecution and defense perspectives. Although prosecutors dismissed these materials as “irrelevant,” Attorney Luke Ryan, who represented several Farak Defendants, immediately realized their exculpatory importance and notified the AG’s Office:  “‘[I]t would be difficult to overstate the significance of these documents.’”[xix] In our adversarial system, prosecutors tend to see evidence in the context of proving a defendant’s guilt, and defense counsel must examine evidence to establish a defendant’s innocence. Put simply, prosecutors are not trained, experienced, or motivated to consider evidence in that way.

Standing Orders

The SJC cited two reasons for declining to issue the proposed Bridgman II and Cotto orders. First, the remedies in those cases reflected the alarming magnitude of the Hinton and Amherst scandals.[xx] Second, in the event of “similar, widespread abuse” in the future, the remedy must “correspond to the scope of the misconduct.”[xxi] The SJC suggested “the balance of equities” may not always justify a “global remedy” rather than a case-by-case response.[xxii]

All agree the recent scandals were unprecedented, and remedies for such government misconduct should be tailored to the harms. A key lesson, however, has been that “existing professional and ethical obligations,” which the DAs consider sufficient, are not self-executing. Affirmative litigation by advocacy groups and defense attorneys as well as repeated judicial intervention by the SJC was needed to reveal the full scope of the misconduct and to provide meaningful remedies.

At first, the AG assumed that Farak’s misconduct began only six months before her arrest. But as Superior Court Justice Richard Carey found, that “assumption was at odds with the evidence uncovered even at that early juncture.”[xxiii] Then, after Cotto and Ware, the AG appointed former Superior Court Justice Peter Velis and AAG Thomas Caldwell to investigate, and it also convened grand juries in Hampshire and Suffolk, calling Farak and many others from the Amherst lab to testify. These efforts erroneously concluded Farak’s misconduct neither affected the work of other chemists nor involved misconduct by prosecutors.

Meanwhile, on remand from Cotto and Ware, Judge Carey conducted an extensive evidentiary hearing at which Kaczmarek, Foster, and others were subjected to cross-examination under oath in open court. That adversarial proceeding revealed more misconduct. Judge Carey found that, by their “intentional and deceptive actions,” the AAGs “ensured that justice would certainly be delayed, if not outright denied.”[xxiv] Both prosecutors “perpetrated a ‘fraud upon the court’” and “‘violated their oaths as assistant attorneys general.’”[xxv] Even then, however, Judge Carey mistakenly concluded Farak’s misconduct impacted only her cases.

Finally, when the SJC took up the issue again in CPCS v. AG, three years after Cotto and Ware, the record established far more extensive lab misconduct and the outrageous prosecutorial misconduct that further prejudiced the victims of the Amherst scandal. Affirming Judge Carey’s view, the SJC held Farak, Kaczmarek, and Foster had all engaged in egregious misconduct. But departing from Judge Carey’s more limited ruling, the SJC also decided the remedy could not be confined to those defendants whose drug certificates Farak signed.

In retrospect, the problem has not only been the slow pace of justice but also the need to litigate with the AG and DAs, for many years, to secure relief from the SJC. Shortly after Farak’s arrest, the ACLU of Massachusetts and CPCS reached out to prosecutors and proposed that both sides work collaboratively to ensure a swift, meaningful response. Those overtures were ineffective, and another G.L. c. 211, § 3 petition to the SJC was required. When confronted with a “lapse of systemic magnitude,”[xxvi] the criminal justice system should not depend on defendants to bring lawsuits, like CPCS v. AG, to vacate wrongful convictions.

Conclusion

Farak was arrested in January 2013, and CPCS v. AG was decided in October 2018, nearly six years later. As of this writing, it is estimated that more than 10,000 individuals were wrongfully convicted as a result of the Amherst lab scandal, and the total number could prove to be significantly higher. Most of these “Farak Defendants” have only recently been notified of their vacated convictions, and many still have not been identified or had their records cleared.

CPCS v. AG was an important effort by the SJC to remedy the harm from unprecedented lab and prosecutorial misconduct. It is also a crucial reminder that further reforms are needed to prevent such malfeasance and, in the event of a future scandal, to ensure that all stakeholders in the criminal justice system—most importantly, prosecutors—will immediately, effectively, and cooperatively investigate the full extent of the problem and, if necessary, proactively implement an appropriate remedy to see that justice is done.

Daniel Marx is a founding partner of Fick & Marx LLP, a boutique firm in Boston, Massachusetts, focused on representing diverse clients in criminal prosecutions, complex civil litigation, and appeals. Along with attorneys from the ACLU of Massachusetts, Mr. Marx served as pro bono counsel for Petitioners Hampden County Lawyers of Justice, Herschelle Reaves, and Nicole Westcott in CPCS v. AG. In addition, Mr. Marx previously served as pro bono counsel for the petitioners in Bridgeman v. District Attorney for Suffolk County.

[i] Bridgeman v. District Attorney for the Suffolk District, 476 Mass. 298 (2017) (“Bridgeman II”).

[ii] CPCS v. AG, 480 Mass. at 725 (emphasis added); see id. at 704 (recognizing the prosecutorial misconduct by AAGs Kaczmarek and Foster “compounded” the lab misconduct by Farak).

[iii] Id. at 706.

[iv] Id. at 727, 729.

[v] Id. at 705 (quoting Bridgeman II, 476 Mass. at 316).

[vi] Id. at 725.

[vii] Id. at 717 (quoting Cotto, 471 Mass. at 111).

[viii] Id. at 725.

[ix] See id. at 727.

[x] See id. at 726.

[xi] Id. at 730, 733-734.

[xii] See id. at 734-735.

[xiii] Id. at 729.

[xiv] Id. at 727.

[xv] Id. at 730 (quoting Commonwealth v. Tucceri, 412 Mass. 401, 408 (1992), and citing Brady v. Maryland, 373 U.S. 83, 87 (1963)).

[xvi] Id. at 732.

[xvii] ABA Resolution 104A (as revised) (Feb. 4, 2011); see, e.g., Standing Brady Order, No. XX-XX (EGS), at http://www.dcd.uscourts.gov/sites/dcd/files/ StandingBradyOrder_November2017.pdf.

[xviii] CPCS v. AG, 480 Mass. at 733.

[xix] Id. at 716 (quoting Attorney Ryan’s letter to the AG’s Office).

[xx] See id. at 734.

[xxi] Id.

[xxii] Id.

[xxiii] Id. at 711.

[xxiv] Id. at 720.

[xxv] Id. at 702, 720 (quoting Judge Carey’s opinion).

[xxvi] Bridgeman II, 476 Mass. at 335 (quoting Scott, 467 Mass. at 352).

 


Reflections on the Supreme Judicial Court Committee on Grand Jury Proceedings

Ullmann

by Hon. Robert L. Ullmann

Voice of the Judiciary

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

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

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

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

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

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

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

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

Creation of the committee and its work

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

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

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

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

Personal Reflections

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

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

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

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


We Are Family: Partanen v. Gallagher Applies Chapter 209C to Protect Children of Never-Married LGBTQ Families

mehta_tejalby Patience Crozier

Case Focus

Nothing is more important in the life of a child than the security of their parental relationship.  The parent-child relationship is foundational and the source of love, emotional and material support.  The recent Supreme Judicial Court (SJC) case Partanen v. Gallagher­, 475 Mass. 632 (2016), addressed the security of a previously vulnerable class of children – the children of never-married non-biological parents – and clarified that the Massachusetts parentage statutes ensure their equal access to legal parentage.

The facts of the case were representative of those many families in the Commonwealth and beyond.  Two women, Karen Partanen and Julie Gallagher, were in a committed relationship.  They planned together to have children and, with mutual involvement and consent, Ms. Gallagher conceived via assisted reproduction using donor sperm and gave birth to two children.  Ms. Partanen was present at both births, and together the couple cared for the children, made mutual decisions to further their well-being, and held themselves out to family, friends and institutions such as schools and health care providers as a family.  The couple did not marry or complete co-parent adoptions.  Shortly after they moved back to the Commonwealth from Florida, the couple’s relationship ended. Ms. Partanen filed two actions to secure the children’s rights to continue their relationships with her, one to establish de facto parentage, and later, another to establish full legal parentage under G. L. c. 209C, arguing that Ms. Partanen is a presumed parent under the statute.  The trial court dismissed the legal parentage action, holding that Ms. Partanen could not seek parentage under Chapter 209C because of her lack of biological connection to the children. Ms. Partenen appealed and the SJC took the case on direct appellate review.

Section 6(a)(4) of Chapter 209C provides that “a man is presumed to be the father of a child” if “he, jointly with the mother, received the child into their home and openly held out the child as their child.”  To establish herself as a presumed parent under that provision, Ms.  Partanen first had to allege that the children were born to parents who are not married to each other and, second, that she satisfied the “holding out” provision of the statute, which requires proof that she, jointly with the birth mother, received the children into their home and openly held them out as their own.  Ms. Gallagher maintained that Ms. Partanen could not be a presumed parent because she had no biological connection to the children.  Ms. Partanen disagreed, arguing that her complaint sufficiently alleged that she was a presumed parent under the statute.

The SJC closely examined the plain language of G.L. c. 209C, § 6(a)(4).    The main question was whether Ms. Partanen could establish herself as a presumed parent without any biological relationship to the children.  In analyzing § 6(a)(4), the SJC reiterated the familiar rule that statutes must be read in gender-neutral terms. The Court concluded that the statute’s plain language applies to children born to same-sex couples who lack biological ties with their children.  Because no statutory language required a biological connection between parent and child, the Court declined to read into the statute such a requirement, particularly when doing so would undermine the statute’s purpose by making this class of children more vulnerable.  The SJC further noted that insofar as a father may validly execute a voluntary acknowledgment of parentage absent a biological relationship, same-sex parents must be able to do the same. The Court reasoned that lack of a genetic tie cannot rebut the presumption of parentage when the parentage claim is not based on a genetic tie.  Numerous other state courts have interpreted similar statutory provisions to allow the establishment of parentage in similar circumstances, including California, Colorado, New Hampshire and New Mexico.

Turning to the facts of this case, the Court concluded that Ms. Partanen adequately alleged parentage under the statute.  The SJC held that she met the two-step test articulated in § 6(a)(4) because she and Ms. Gallagher created a family together with shared involvement, consent and intention, satisfying the requirement that the children were “born to” them.  Ms. Partanen also adequately alleged that she “received the child into their home and openly held out the child as their child” in her assertions that they lived as a family, actively cared and made decisions together for the children, and represented themselves to others as their parents.

The implications of Partanen are far-ranging. It is now clear that non-marital same-sex couples can execute voluntary acknowledgments of parentage in the hospital at birth, the key administrative route for establishing a non-marital parent-child relationship and one that saves families the expense and delay of establishing parentage through the court system.  Further, these parents can also seek an adjudication of parentage in the courts under G. L. c. 209C, § 6(a)(4), a clear and established means of asserting parentage that is more affordable, accessible and reflective of the family’s reality than de facto parent litigation. Finally, never-married, non-biological parents may now be able to receive counsel and participate in child welfare and juvenile court proceedings regarding their children.  A class of parents previously cut out of involvement and decision-making in their children’s lives can now access the full range of protections of legal parentage.  Partanen also further highlights the great diversity of families in the Commonwealth, where legal parentage can arise from marriage, adoption, genetic ties and through conduct.  Partanen represents a major step forward in ensuring security and equality for all children.

Patience Crozier served on the team of appellate attorneys for Karen Partanen along with co-counsel Mary L. Bonauto, Elizabeth Roberts and Teresa Harkins La Vita.  Amici in support of Ms. Partanen’s legal arguments indicate the depth and breadth of support for her position.  Amici included the Attorney General of Massachusetts, Greater Boston Legal Services, Children’s Law Center, Massachusetts LGBTQ Bar Association, Women’s Bar Association of Massachusetts, Community Legal Aid, Carolyn Famiglietti, Maureen McBrien, Massachusetts Bar Association, American Academy of Assisted Reproductive Technology Attorneys, Boston IVF, Fenway Health, IVF New England, New England Fertility Society, Path2Parenthood, Resolve: The National Infertility Association, Resolve New England, and Forty-two Law Professors.


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.  


A Weak Expressio: In DaRosa v. City of New Bedford, The SJC Serves A Diluted Version Of An Established Statutory Interpretation Rule

clancy_davidbrumme_marleyby David S. Clancy and Marley Ann Brumme

Viewpoints

In DaRosa v. City of New Bedford, 471 Mass. 446 (2015), the Supreme Judicial Court made the Massachusetts Public Records Act (“PRA”) a less effective tool for citizens seeking government records, just as the Massachusetts government faces sharp criticism from media outlets and good-government groups for lack of transparency.  In doing so, the SJC weakened something else:  the established canon of statutory interpretation expressio unius est exclusio alterius (the expression of one thing is the exclusion of the other).  This canon urges courts not to add “implied” terms to statutes.  In its undiluted form, expressio unius is a strong constraint on judicial alteration of legislative enactments.  But DaRosa dilutes it in a way that will affect future interpretation of the PRA, and maybe other statutes as well.

At issue in DaRosa was the status of attorney work product under the PRA.  In an environmental dispute, the City of New Bedford was withholding such documents from third-party defendants.  Those defendants had strong arguments for disclosure.  The PRA states that all government records are public, unless they fall within one or more “strictly construed” exemptions from disclosure.  Att’y Gen. v. Ass’t Comm’r of the Real Prop. Dep’t of Boston, 380 Mass. 623, 625 (1980).  None of those exemptions explicitly protects documents that are attorney work product (or attorney-client privileged).  And in General Electric Co. v. Massachusetts Department of Environmental Protection, 429 Mass. 798 (1999) (“GE“), the SJC — applying expressio unius — declined to add an “implied” exemption for attorney work product:

There is no ambiguity in the statute’s explicit mandate that the public have access to all government documents and records except those that fall within the scope of an express statutory exception.  As we said in construing an analogous statute, the open meetings law as it applied to municipal governments, G.L. c. 39, § 23B, ‘exceptions are not to be implied.  Where there is an express exception, it comprises the only limitation on the operation of the statute and no other exceptions will be implied.’

Id. at 805-806.

Despite all of this, the City of New Bedford won in DaRosa.  The SJC did not go so far as to overrule GE and create an implied exemption for attorney work product — the Court entertained that possibility, but refrained.  The practical result was largely the same, however.  Reaching an issue that it did not address in GE, the SJC ruled that work product is almost always within an already-existing exemption anyway.  That exemption — exemption (d) — covers “inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency,” except “reasonably completed factual studies or reports on which the development of such policy positions has been or may be based.”  DaRosa, 471 Mass. at 450-451.  The Court held that attorney work product reflects “decisions regarding litigation strategy and case preparation” and thus amounts to development of policy.  Id. at 458.  (The Court acknowledged that a “reasonably completed factual study or report” would fall outside the scope of exemption (d), but hastened to add that the exemption applies to such work product if it is “interwoven” with “opinions” or “analysis.”  Id. at 459-460.)

To this point, DaRosa may seem to be merely a technical decision about the scope of one of the PRA’s long-existing exemptions, with the SJC’s conclusion at least plausibly supported by that exemption’s text.  But DaRosa is more than that because of the part of the decision where the SJC considered simply adding an implied PRA exemption for attorney work product.  As noted, the SJC refrained from doing so, but, in no uncertain terms, the SJC expressed a willingness to do so:

We no longer hold to the view declared in General Electric that there are no implied exemptions to the public records act, and that all records in the possession of a governmental entity must be disclosed under the act unless they fall within one of the exemptions identified [therein].

Id. at 453.  This is a remarkable statement.  It represents a sharp departure from GE and its forceful application of expressio unius.  Moderating that departure, the SJC held that the judiciary should create “implied exemptions” only when necessary to “preserve the fair administration of justice.”  Id. at 454.  But that malleable phrase is not a comforting restraint on a court which has so bluntly broken from GE.

While startling, DaRosa‘s “we no longer hold to” pronouncement did not come from thin air.  In two prior cases — Suffolk Construction Company v. Division of Capital Asset Management, 449 Mass. 444 (2007), and Commonwealth v. Fremont Investment & Loan, 459 Mass. 209 (2011) — the SJC had already departed from the rationale of GE.  But in both cases it had done so with greater delicacy.

Suffolk was effectively a companion case to GE.  Recall that in GE, the SJC was asked whether the PRA contains an implied exemption for attorney work product, and answered “no.”  Eight years later, Suffolk raised a kindred question:  whether the PRA contains an implied exemption for records that are attorney-client privileged.  The SJC now answered “yes” — but it managed to do so without overturning GE or announcing a general judicial power to add PRA exemptions.  How so?  The Court explained that the need for an implied exemption was uniquely compelling in the particular circumstances of that case.  The Court took pains to establish the importance and venerability of the attorney-client privilege, which it called “common law of fundamental and longstanding importance to the administration of justice.”  Suffolk, 449 Mass. at 458.  The Court presented attorney work product as a doctrine of lesser status, referring to it as a mere “tool of judicial administration.”  Id. at 456.  Further, the SJC persuaded itself that its decision was consistent with the Legislature’s intent in enacting the PRA, which, according to the SJC, could not have been to “mandate[] that public officials perform their duties without access to legal advice protected by the attorney-client privilege.”  Id. at 458-459.

In the 2011 Fremont decision, the SJC again read an implied exemption into the PRA — but again without announcing a general power to do so.  This time an individual requested documents from the Office of the Attorney General which it had obtained from the defendant in a civil lawsuit, and which were subject to a protective order issued in that lawsuit.  The SJC decided that the PRA contains an implied exemption for such documents.  To rule otherwise, held the SJC, would raise “serious constitutional questions about the validity of that law,” because protective orders are within inherent judicial powers guaranteed by Article 30 of the Massachusetts Declaration of Rights.  Fremont, 459 Mass. at 214.  In essence, the SJC narrowed the PRA in order to save it.  Fremont, then, involved another unique situation where the need for an implied exemption was unusually powerful.

Suffolk and Fremont read as the decisions of a court that would add a PRA exemption only in an extraordinary situation, and perhaps only in the two particular situations addressed in those cases.  DaRosa goes further.

This is not to say that DaRosa ends a golden age of judicial restraint in which expressio unius was rigidly applied.  As humorist James Thurber observed, “[t]here is no exception to the rule that every rule has an exception.”  Historically, courts did read additional terms into statutes.  But they did so circumspectly, usually where satisfied by the existing text that the addition was needed to effectuate the Legislature’s purpose in passing the statute:  “‘The maxim [expressio unius] will be disregarded . . . where its application would thwart the legislative intent made apparent by the entire act.'”  Halebian v. Berv, 457 Mass. 620, 628 (2010).  DaRosa does not suggest that same fastidiousness about separation of powers.  Adding “implied” exemptions for the “fair administration of justice” is, at least presumptively, to frustrate the PRA’s “fundamental purpose to ensure public access to government documents.”  GE, 429 Mass. at 801.

Whether DaRosa is ultimately good or bad for citizens seeking government records is unclear.  DaRosa‘s holding about the scope of exemption (d) impairs the PRA as a tool for accessing government records, and the Court’s statements about statutory interpretation threaten further diminishment.  That said, the decision arrives just as public dissatisfaction with the PRA — which the Boston Globe recently called “anemic” — has reached a boiling point.  In further weakening the PRA, the DaRosa decision could have the ironic effect of fueling the ongoing efforts to strengthen it.

DaRosa could also have a broader impact.  The decision addresses the PRA only.  However, attorneys will almost certainly use it to push for judicial revisions to other statutes, and practitioners could find judges more amenable to doing so.  If so, in the courthouses of Massachusetts, a strong expressio may start getting harder to find.

David Clancy and Marley Ann Brumme are litigators at the Boston office of Skadden, Arps.  Mr. Clancy represented GE in GE v. Massachusetts Department of Environmental Protection.  Skadden also represented Fremont in Commonwealth v. Fremont Investment & Loan.  The views expressed in this article are their own and do not necessarily represent the views of Skadden, Arps or its clients.


Judging Judges

by Chief Justice Paula Carey and Judge Janet Sanders

Voice of the Judiciary

Carey_Paula Sanders_JanetYou open your email and there it is – a special invitation from the Supreme Judicial Court.  You have been chosen to evaluate those trial court judges sitting in a county in which you have recently appeared on a case.

Your participation is critical, it says.  And if you do participate, your identity cannot be determined.  You are skeptical of both statements.  No one will take what you say seriously anyway, right?

Wrong.  The SJC’s Judicial Performance Evaluations program, now twelve years old, is more robust than ever.  It is the cornerstone of a larger effort to improve and enhance the judiciary on a state wide basis.

If you complete the evaluation, your responses together with the responses of other attorneys who have appeared before that judge in the preceding two years are shared not only with the evaluated judge but also with that judge’s chief.  The results of the evaluation can have a real impact on deciding what steps judges should take to further develop their judicial skills.

The current evaluation instrument asks attorneys to rate a particular judge on sixteen attributes indicative of judicial performance.  Does the judge dispose of judicial matters in a timely manner?  Does she treat lawyers and litigants with respect?  Does the judge appear to have a good grasp of the law?  Is he free from bias?

The instrument also gives lawyers a chance to explain their ratings with written comments.  These comments can be valuable – provided they are constructive.  To say that a judge is “bad” provides no guidance as to how that judge might modify his behavior.  On the other hand, constructive comments can provide a judge with valuable insight into how he or she is perceived by others.

And yes, the evaluating attorney’s identity remains confidential.  No one will know who you are.  When you fill out the evaluation, you are randomly assigned a number by the evaluation software and it is literally impossible to track backward to your name once you have responded.  But that anonymity carries with it certain responsibilities.  This is a lawyer’s chance to be helpful, not hurtful.

So you fill out the evaluation.  What happens to it? There is a general misimpression among the bar that the results go into a black hole – or at least into someone’s drawer, never to be looked at again.  That is far from the truth.

First, the results are tallied and a report is put together.  That report contains a wealth of information.  It shows not only how many attorneys responded but also gives a breakdown as to how many years they have been practicing, what percentage of their practice is focused on litigation, and how many hours in the last two years they were able to observe the judge whom they evaluated.

That’s important to the individual judge.  If a large percentage of the respondents are experienced litigators (as they often are), then it is hard to brush off what they have to say.

The report will also show how a particular judge fared compared to her colleagues – indicating not only the composite results for all judges in her department dating back to 2001, but also the results of judges in other departments evaluated in that round.  Judges take pride in their work: to realize that that one is not measuring up in comparison to others doing the same job can be a real motivator for change.

Before the report is distributed to the judge, he is asked to do his own self-evaluation.  This too can be a tool for self-improvement.  If there is a large gap between the scores a judge gives himself and those that he actually received, then the judge knows that there is reason to look more closely at his behavior.

Once the judge and that judge’s chief receive the report, a time and date is set for the two to sit down and discuss the results.  These meetings are not perfunctory.  They are lengthy and involve a frank interchange regarding any difficulties that the judge has encountered on the job.

Because each judge gets evaluated at least once every three years, the judge can compare the current results to those of prior years to see if there has been any noticeable change.  If there has been a change for the worse, then the meeting provides the opportunity for the judge and her chief to talk about why the change might have occurred and to brainstorm about what could be done to turn things around.

Attorney comments too may help identify a problem area for the judge.  A couple of critical comments may not tell much, but if there are many attorneys saying the same thing, then the comments may illustrate to the judge that something needs to be done.

The SJC has set a minimum standard that all judges are expected to meet in their ratings on the judicial attributes set forth in the evaluation instrument.  A very large majority exceed that standard by a large measure.  But for those few who fall below that standard, a written enhancement plan must be developed by this judge and his chief.

This plan will describe the steps the judge will take to remedy any deficits in performance.  Perhaps the judge needs more training in a certain substantive area, or some assistance in writing.  The judge may be assigned a more experienced judge as a mentor, or urged to shadow another judge for a time.  Follow-up meetings will be scheduled between the judge and his chief.

Precisely because judicial evaluations are taken so seriously within the judiciary, the SJC has recently formed a committee that is reexamining the evaluation instrument to see how it could be improved. This committee, which consists of judges, law professors, and two members of the bar, is also considering what kinds of additional information could be gathered as part of the evaluation process so that each judge and her chief have the most complete picture of how that judge is performing her duties.

The judiciary has not always embraced judicial evaluations, of course.  The statute that mandated them, G.L. c 211 §26, was enacted in 1988.  Each court department fashioned its own program, but the lack of uniformity and consistency provoked a demand from the bar that something more needed to be done.

In 1999, then Chief Justice Herbert Wilkins appointed a committee of judges, each of whom represented one of the seven trial court departments, and in 2001, the first set of evaluations went out to Bristol and Plymouth Counties. Every judge in the state has been evaluated – most of them multiple times – since every three years, the process begins anew.

Judicial evaluations tell only part of the story, however.  In recent years, the SJC through various working committees has developed additional programs aimed at enhancing judicial performance.

For example, every trial court department now has a peer observation program, where judges are paired up to watch each other in court and provide feedback.  Constructive criticism that comes from a colleague is more likely to be heeded than advice from any other source.

Several court departments have also implemented a program whereby a judge is videotaped, then reviews the tape with a colleague.  And every court department has developed a comprehensive training program for all new judges, each of whom is assigned a trained “mentor” judge who meets regularly with the new judge throughout the first year.

Programs that focus on demeanor and temperament are now a regular part of judicial education.  And there are far more opportunities than there had been in the past for judges to meet across court departments and discuss issues of common concern.

In short, the judiciary has come a long way from that not so distant past when judicial evaluations were considered an anathema.

The irony of it all is that, just as the judiciary is accelerating its efforts to make sure all judge perform at the highest level, interest among the bar in the evaluation process has steadily declined.

Initially, about one third of attorneys who received an evaluation form filled it out and returned it.  Now that figure is close to a quarter or even a fifth.  When evaluations first began, a judge would typically receive ratings from well over a hundred attorneys.  That number has decreased to 70 or 80 – well over the 25 responses required in order for a report to be compiled – but nevertheless cause for concern.

This decline has taken place even as the program has gone online, with the ability to generate reminder notices to those who receive the invitation to participate.

With fewer responses, the evaluation results are less likely to reflect the views of a broad cross section of the legal community, thereby making the results less helpful.

So next time you get that special invitation in your email, don’t delete it.  Take the time to complete the evaluation.  Think through the comments you make so that they will be of some help to the individual judge who reads them.  Your response is important.  After all, it is in everyone’s interest that the judges in this state do their jobs well.

Hon. Paula M. Carey is Chief Justice of the Trial Court.  She was appointed to that position on July 16, 2013.  Prior to that, she was the Chief Justice of the Probate and Family Court, appointed on October 2, 2007.  She was appointed an Associate Justice of the Norfolk Probate and Family Court in 2001. 

Judge Janet L. Sanders has been a justice of the Superior Court since 2001. Between 1995 and 2001, she was a District Court judge, assigned first to Waltham and then to Concord as the Presiding Justice. She is currently the Administrative Justice of the Business Litigation Session.